HomeMy WebLinkAbout07-0723ROBERT E. NORTON
1829 DEL NORTE DRIVE SW
ALBUQUERQUE, NM 87105
Plaintiff,
V.
KIDIST K. NORTON
Defendant.
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:No. 2007 - `) ?- 3 CIVIL TERM
: CIVIL ACTION
: JURY TRIAL DEMANDED
PRAECIPE FOR ISSUANCE OF A WRIT OF SUMMONS
TO CURTIS R. LONG, PROTHONOTARY:
Please issue a Writ of Summons against the Defendant, Kidist K. Norton, and enter our
firm's appearance on behalf of the plaintiff, Robert E. Norton. Please have the Sheriff serve the
Defendant at the following address:
KIDIST K. NORTON
23 COURT LANE
CARLISLE, PA 17013
Respectfully submitted,
IRWIN & McKNIGHT
By:
Douglas G. Miller, Esquire
Supreme Court I.D. No. 83776
Matthew A. McKnight, Esquire
Supreme Court I.D. No.: 93010
60 West Pomfret Street, Carlisle, PA 17013
February 5, 2007 (717) 249-2353
To: Kidist K. Norton
23 Court Lane
Carlisle, PA 17013
You are hereby notified that Robert E. Norton, Plaintiff, has commenced an action
against you which you are required to defend or a default 'udgment may a entered against you.
P N ARY
By:
DEPUTY
Date: F , 2007
Cam,
C:71
t r
n
Leslie D. Jacobson
Attorney for Defendant
The Law Offices of Leslie David Jacobson
8150 Derry Street, Ste. A
Harrisburg, Pennsylvania 17111-5260
Ph: (717) 909-5858
Fx: (717) 909-7788
ROBERT E. NORTON
PLAINTIFF
V.
KIDIST K. NORTON
DEFENDANT
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
745
No.: 20074Civil Term
CIVIL ACTION
JURY TRIAL DEMANDED
RULE TO FILE COMPLAINT
To: Robert E. Norton, Plaintiff,
c/o Mr. Douglas G. Miller
Mr. Matthew A. McKnight
Irwin & McKnight
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, PA 17013-3222
You are hereby ruled to file a Complaint against Defendant Kidist K. Norton with twenty
(20) days of service of this Rule or a judgment of non pros will be entered against you pursuant
to Pa.R.C.P. 1037(a).
Dated: - ? 0260 -7 I'Q k o?
Prothonotary L
Leslie D. Jacobson
Attorney for Defendant
The Law Offices of Leslie David Jacobson
8150 Derry Street, Ste. A
Harrisburg, Pennsylvania 17111-5260
Ph: (717) 909-5858
Fx: (717) 909-7788
ROBERT E. NORTON IN THE COURT OF COMMON PLEAS OF
PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA
V. No.: 2007-729 Civil Term
KIDIST K. NORTON CIVIL ACTION
DEFENDANT JURY TRIAL DEMANDED
PRAECIPE FOR RULE TO FILE A COMPLAINT
To the Prothonotary:
Please issue a Rule on Plaintiff, Robert E. Norton, to file a Complaint in the above
captioned case within twenty (20) days of service of said Rule, or suffer a judgment of non pros
pursuant top Pa.R.C.P. 1037(a).
Respectfully submitted,
Dated: April 9, 2007
THE LAW OFFYCI?S OF LESLIE DAVID JACOBSON
l
Leslie D. Jacobso
ID# 52673
8150 Derry Street
Harrisburg, PA 17111
717.909.5858
FAX: 717.909.7788
Attorney for Defendant.
Leslie D. Jacobson
Attorney for Defendant
The Law Offices of Leslie David Jacobson
8150 Derry Street, Ste. A
Harrisburg, Pennsylvania 17111-5260
Ph: (717) 909-5858
Fx: (717) 909-7788
ROBERT E. NORTON
PLAINTIFF
V.
KIDIST K. NORTON
DEFENDANT
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: No.: 2007-729 Civil Term
CIVIL ACTION
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
AND NOW, this 9'' day of April, 2007, I, Chad Julius, Law Clerk at the Law Offices of
Leslie D. Jacobson, and hereby certify that on this day I served the within documents upon the
person indicated below, by depositing a true and correct copy of the same in the United States
Mail, postage prepaid, which service satisfies the requirements of the Pennsylvania Rules of
Civil Procedure:
Mr. Douglas G. Miller
Mr. Matthew A. McKnight
Irwin & McKnight
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, PA 17013-3222
LAW OFFICES OF LESLIE DOID,JACOBSON
By:
8150 Derry Street,
Harrisburg, PA 17111.5260
PHONE: 717.909.5858
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4
ROBERT E. NORTON,
Plaintiff
V.
KIDIST K. NORTON,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
7,23
No. 2007-7-39 CIVIL TERM
CIVIL ACTION
NOTICE TO DEFEND
You have been sued in court. If you wish to defend against the claims set forth in the
following pages, you must take action within twenty (20) days after this complaint, order and
notice are served, by entering a written appearance personally or by attorney and by filing in
writing with the court your defenses or objections to the claims set forth against you. You are
warned 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 plaintiff. 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 LEGAL
HELP.
Cumberland County Lawyer Referral Service
32 South Bedford Street
Carlisle, Pennsylvania 17013
(717) 249-3166
Americans with Disabilities
Act of 1990
The Court of Common Pleas of Cumberland County is required by law to comply with the
Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable
accommodations available to disabled individuals having business before the court, please contact our
office. All arrangements must be made at least 72 hours prior to any hearing or business before the court.
You must attend the scheduled conference or hearing.
ROBERT E. NORTON, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
V. : No. 2007-729 CIVIL TERM
KIDIST K. NORTON, : CIVIL ACTION
Defendant
COMPLAINT
AND NOW COMES the Plaintiff, Robert E. Norton by and through his attorneys, Irwin
& McKnight, to make the following Complaint and in support thereof avers as follows:
1. The Plaintiff, Robert E. Norton, is an adult individual who principally resides at
1829 Del Norte Drive SW, Albuquerque, New Mexico 87105.
2. The Defendant, Kidist K. Norton, is an adult individual who principally resides at
23 Court Lane, Carlisle, Cumberland County, Pennsylvania 17013.
3. Plaintiff is the son of Ernest L. Norton and Mildred D. Norton. He is also the
brother of Clifford E. Norton, the Defendant's deceased spouse.
4. Prior to entering a nursing facility, Ernest L. and Mildred D. Norton agreed to gift
their main asset, their principal residence at 4120 Wertzville Road, Enola, (hereinafter referred to
as "Property") to their son, Clifford E. Norton, and his wife, Defendant Kidist K. Norton with the
oral condition that when the property would be sold, half of the net proceeds would be split
equally between Plaintiff and his brother as an inheritance. A true and correct copy of the signed
Deed dated August 10, 1989, is attached hereto and incorporated herein as Exhibit "A".
5. Both Ernest L. and Mildred D. Norton later entered the Church of God Home in
Carlisle.
6. Ernest L. Norton died on January 15, 1990.
7. The parties to the transaction agreed to memorialize the agreement regarding the
sharing of proceeds between Plaintiff and his brother upon any future sale of the Property.
8. Upon information and belief, Defendant's spouse, Clifford E. Norton, engaged the
services of an attorney to prepare an argument to be signed by the surviving parties.
9. On December 25, 1992, Mildred D. Norton, Clifford E. Norton and Defendant
signed an agreement stating that upon sale of the Property and after reimbursement for
improvements and taxes, any proceeds in excess of $100,000.00 were to be divided with one half
going to Clifford E. and Defendant and the other half to Plaintiff. A true and correct copy of the
signed agreement is attached hereto and incorporated herein as Exhibit "B".
10. Upon information and belief, at all times relevant hereto Clifford E. Norton and
Defendant represented to third parties interested in purchasing the property that they needed a
price high enough to justify the agreed upon split of proceeds between the two brothers.
11. Upon information and belief, over the years Clifford E. Norton and Defendant
turned down offers to purchase the Property because they were not deemed high enough to
justify a split of the proceeds between the two brothers.
12. Over the years, during the time the Property was owned by Defendant, she has
indicated to Plaintiff that it was her understanding that he was to receive his share of the
proceeds from the sale of the Property.
13. Clifford E. Norton died on March, 4, 2006.
2
14. On August 1, 2006, Defendant sold the Property for $600,001.00. A true and
correct copy of the Deed is attached hereto and incorporated herein as Exhibit "C".
15. After the sale of the Property, Plaintiff made demand for his share of the proceeds
according to the terms outlined in the agreement dated December 26, 1992, and upon the oral
promises and representation of the parties to the transaction..
16. Defendant has refused to provide Plaintiff with his share of the proceeds, claiming
that she is under no obligation to provide it to him.
COUNTI
BREACH OF CONTRACT
17. The averments of fact alleged in items one (1) through sixteen (16) are made a
part hereof and incorporated herein by reference.
18. In consideration for receiving the Property, Defendant and her husband, Clifford
E. Norton, agreed that upon any sale of the Property they would share the proceeds with
Plaintiff.
19. This agreement was later reduced to writing by Defendant's husband and signed
by the surviving parties.
20. Defendant by her refusal and failure to provide Plaintiff with his share of the
proceeds from the sale of the Property, has breached the contract to which Plaintiff is a third
party beneficiary.
3
21. As a result of Defendant's breach and refusal to honor the terms of the contract,
Plaintiff has been denied his share of the proceeds from the sale of the Property, which
approximately amount to $238,000.00.
22. Plaintiff Robert E. Norton is entitled to certain damages, including but not limited
to, receiving his full share of the proceeds from the sale of the Property and costs associated with
the litigation.
WHEREFORE, The Plaintiff, Robert E. Norton, respectfully requests that this
Honorable Court enter judgment against Defendant, Kidist K. Norton, in excess of the
Compulsory Arbitration limit of Fifty Thousand and no/100 ($50,000.00) Dollars plus costs,
interest, reasonable attorneys fees, and all other relief this Honorable Court deems fair and just.
COUNT II
UNJUST ENRICHMENT
23. The averments of fact alleged in items one (1) through twenty-two (22) are made
a part hereof and incorporated herein by reference.
24. Defendant accepted the transfer of the Property with full knowledge and
agreement that Ernest L. and Mildred D. Norton wanted Plaintiff to receive a share of the
proceeds upon sale of the property.
25. Defendant further acknowledged and agreed that Plaintiff was to receive a share
of the proceeds from the sale of the property by signing the agreement attached hereto as Exhibit
«B„
4
26. Defendant has not honored the agreement made prior to the transfer of the
Property and by the agreement attached hereto as Exhibit "B", that Plaintiff be provided with a
share of the proceeds from the sale of the Property.
27. It is and continues to be inequitable for Defendant to retain the full proceeds from
the sale of the Property while refusing to provide Plaintiff with his share of the proceeds as she
obligated herself both orally and in writing.
WHEREFORE, The Plaintiff, Robert E. Norton, respectfully requests that this
Honorable Court enter judgment against Defendant, Kidist K. Norton, in excess of the
Compulsory Arbitration limit of Fifty Thousand and no/100 ($50,000.00) Dollars, plus costs,
interest, reasonable attorneys fees, and all other relief this Honorable Court deems fair and just.
COUNT III
BREACH OF CONDITIONAL GIFT
28. The averments of fact alleged in items one (1) through twenty-seven (27) are
made a part hereof and incorporated herein by reference.
29. Ernest L. and Mildred D. Norton gifted to Defendant and her husband, Clifford E.
Norton, the Property on the condition that upon any sale of the Property they would share the
proceeds with Plaintiff.
30. This conditional gift of the Property was subsequently memorialized in writing by
the surviving parties after the Property was transferred.
5
31. In the alternative, the surviving parties to the gift of the Property subsequently
agreed to change the terms of the gift in writing to provide Plaintiff with an inheritance by
providing him with a share of the proceeds from any sale of the Property.
32. By failing to provide Plaintiff with his share of the proceeds from the sale of the
Property, Defendant has breached the terms of the conditional gift, requiring the full return of all
net proceeds from the sale of the Property to the surviving Grantor, Mildred D. Norton.
WHEREFORE, the Plaintiff, Robert E. Norton, respectfully requests that this Honorable
Court enter judgment against Defendant, Kidist K. Norton, requiring her to return all net
proceeds from the sale of the Property to the surviving Grantor, Mildred D. Norton, plus costs,
interest, reasonable attorneys fees, and all other relief this Honorable Court deems fair and just.
COUNT IV
WRONGFUL CONVERSION
33. The averments of fact alleged in items one (1) through thirty-two (32) are made a
part hereof and incorporated herein by reference.
34. Defendant was obligated upon receipt of the net proceeds of the sale of the
Property to a third party to pay over to Plaintiff one half of the net proceeds.
35. In the alternative, by appropriating all of the net proceeds from the sale of the
Property, Defendant has wrongfully converted Plaintiff's inheritance.
36. Upon information and belief, Defendant has wrongfully converted the funds
agreed to be paid to Plaintiff in order to pay Defendant's own financial obligations.
6
WHEREFORE, The Plaintiff, Robert E. Norton, respectfully requests that this
Honorable Court enter judgment against Defendant, Kidist K. Norton, in excess of the
Compulsory Arbitration limit of Fifty Thousand and no/100 ($50,000.00) Dollars, plus costs,
interest, reasonable attorneys fees, and all other relief this Honorable Court deems fair and just.
COUNT V
CONSTRUCTIVE TRUST
37. The averments of fact alleged in items one (1) through thirty-six (36) are made a
part hereof and incorporated herein by reference.
38. Defendant accepted the transfer of the Property with full knowledge and
agreement that Ernest L. and Mildred D. Norton wanted Plaintiff to receive a share of the
proceeds upon sale of the property.
39. Defendant and her husband, Clifford E. Norton, obligated themselves both orally
and in writing to provide Plaintiff with his share of the proceeds from the sale of the Property.
40. Upon information and belief, it was always Defendant's stated understanding and
intention to provide Plaintiff with his share of the proceeds from the sale of the Property until
either shortly before or after the sale of the Property.
41. By refusing to provide Plaintiff with his share of the proceeds from the sale of the
Property, as per acknowledgement and agreement, Defendant is in wrongful retention of such
proceeds and should be deemed holding them in constructive trust for the benefit of the Plaintiff.
7
42. Upon information and belief, Defendant has used a portion of the net proceeds
from the sale of the Property to purchase a new residence.
43. Upon information and belief, Defendant has invested the remaining net proceeds
in as yet undetermined assets in the Defendant's name or under her control.
WHEREFORE, The Plaintiff, Robert E. Norton, respectfully requests that this
Honorable Court enter judgment against Defendant, Kidist K. Norton, in excess of the
Compulsory Arbitration limit of Fifty Thousand and no/100 ($50,000.00) Dollars, plus costs,
interest, reasonable attorneys fees, and all other relief this Honorable Court deems fair and just,
including the imposition of a constructive trust upon Defendant for any real or personal property
acquired by Defendant through the wrongful retention of the funds paid by Plaintiff on account
of the purchase price, requiring the Defendant to release and/or reconvey any such property to
Plaintiff.
Dated: ` o ax7
Respectfully submitted,
IRWIN & McKNIGHT
By: AAA
Douglas Mil er, Esquire
Supreme Tiirt I.D. # 83776
Matthew A. McKnight, Esquire
Supreme Court I.D. # 93010
60 West Pomfret Street
Carlisle, PA 17013
(717) 249-2353
Attorney for Plaintiff
Robert E. Norton
8
VERIFICATION
The foregoing document is based upon information which has been gathered by counsel
and myself in the preparation of this action. I have read the statements made in this document
and they are true and correct to the best of my knowledge, information and belief. I understand
that false statements herein made are subject to the penalties of 18 Pa. C.S.A. Section 4904,
relating to unsworn falsification to authorities.
ROBERT K NORTON
Date: r 0 ?® j
EXHIBIT "A"
RMY ?MI. ?.. MMr. M
.T „
R CO DtD 0 E '
CUMBEnLAt': C:uliiY-r•A.
•89 RUG 10 Ph 4 01
MADE THE ?? day of August in the year
of our Lord one thousand nine hundred eighty-nine (1989 )
BETWEEN ERNEST L. NORTON and MILDRED D. NORTON, his wife,
of Hampden Township, Cumberland County, Pennsylvania,
hereinafter called
' Grantors ,
and CLIFFORD E. NORTON and KIDIST K. NORTON, his wife,
of Hampden Township, Cumberland County, Pennsylvania,
hereinafter called
_.. Grantees
WITNESSETH, that in consideration of One and no/100------------------------
------------------------------($1.00)-------------------------Dollar
in hand paid, the receipt whereof is hereby acknowledged, the said grantors do hereby grant
and convey to the said granted ,their heirs and assigns as tenants by the
entireties
ALL that certain piece or lot of ground with the improvements
thereon situated in Hampden Township, Cumberland County, Pennsylvania,
bounded and described as follows, to wit:
BEGINNING at a pin in the center of the State Highway; thence
along lands now or late of C. Walters, North. 3 degrees West 741.45
feet to a post; thence along land now or late of the said Rossvill
Hoffman, North 88 degrees East 273 feet to a post; thence along a
proposed road and land now or late of the said Rossvill Hoffman,.
South 1 degree West 748 feet to a pin in the center of the said
Highway; thence along the same, South 88 degrees West 225 feet to.
the Place of BEGINNING.
CONTAINING 4 1/4 acres.
t:1rc
C 4 ' 458
???x 3 -
,r
HAVING thereon erected a two and one-half (2 1/2) story
frame dwelling.
BEING the same property which Mary E. Hallman and Elvira C.-?
Hallman, granted and conveyed to Ernest L. Norton and Mildred D.
Norton, his wife, Grantors herein, by deed dated December 28,
1984 and recorded in the Office of the Recorder of Deeds for
Cumberland County, Pennsylvania in Deed Book "B", Volume 31,
Page 753•
This is a non-taxable transfer from parents to son and
daughter-in-law.
i
eoo!c C 34 °ac? 459
AND the said grantors hereby covenant and agree that they
will warrant generally the property hereby conveyed.
IN WITNESS WHEREOF, said grantors have hereunto set their hands and seab
the day and year first above written.
SiQntb, ScAttb nab ?tlibcrcb --- -.41-... - . _. ...».........» ss?.,.
ERNEST L. NORTON
in The prtaw of
............. .»J?_.............»n.......................................».... assn
?.._ ............. 6SSn
.» » MILDRED D. NORTON
»......... » ............................ ...»....»........ .»...................................................................... »...... aSAn
1
I
i-
State of PENNSYLVANIA
aa.
County of CUMBERLAND
On this, the
l day of August 19 before me, a
the undersigned queer, personally appeared Ernest L. Norton and
Mildred D. Norton, his wife
known to me (or satisfactorily proven) to be the persons whose names ' are subscribed to the
within instrument, and acknowledged that they executed same for the purposes therein
contained.
. r
IN WHEREOF, I hereunto set my and o cial seat.
vis?``4` .._.. w_» .... ...... sn" '
+titi
...................................... ..........................................
e„ Title of Officer.
.,i G iR . ' NOTARIAL SEAL
BMA.MORfitSON,NOTARYPUBLIC
* •a i A' ' CARLISLE BORO, CUM9ER:MD COUNTY
. Ai ' ?: • MYCOMMIMON EXPIRES DEC. 15.1992
Member. PemgWr is Assodatim o(Notaries 2
i
I do hereby certify that the precise residence and complete post office address
of the within named grantees is 9/30 LcJGr'7? t////e oeDaw/
August /dl?:1989,
eoox C34 460 .................»...?.`
acs
Attorney for Grant s
i
i
r,
EXHIBIT `B"
•l?
AGREEMENT
This Agreement is made this day of ?---
1992, between Clifford E. Norton and Kidist K. Norton, of Enola,
Pennsylvania, and Mildred D. Norton, of Carlisle, Pennsylvania, for
and in consideration of the transfer of real estate and the
improvements thereon known as 4130 Wertzville Road, Enola,
Pennsylvania, from Mildred D. and Ernest L. Norton to Clifford and
Kidist K. Norton, recorded at Deed Book C34, page 458, in the
Cumberland County Recorder of Deeds Office.
It is understood and agreed that at such time that Clifford
or Kidist or both sell, convey or transfer the property at 4130
Wertzville Road, Enola, after deducting the cost of any and all
improvements and taxes paid by Clifford and/or Kidist Norton during
the term of their ownership and all customary costs, the net
proceeds of the sale in excess of $100,000.00 shall be distributed
one-half (1/2) to Robert E. Norton and one-half (1/2) to Clifford
and Kidist Norton. For purposes of calculating the sales price of
the property, any personal property included in the sale shall be
excluded.
It is further understood that if the property at 4130
Wertzville Road, Enola, is sold, conveyed or transferred for a sum
less than $100,000.00 after deducting the cost of any and all
improvements, then all of the proceeds from the transfer shall
belong solely to Clifford and Kidist Norton or their heirs,
r?
successors and assigns, and no moneys shall be distributed to
Robert E. Norton.
It is further agreed that Clifford and Kidist may, in their
absolute discretion, hold the property as long as either shall
survive and choose to occupy the subject property. This agreement
shall in no event be construed to require the sale of the property.
by either Clifford or Kidist Norton or to give Robert E. Norton any
rights to approve or veto a contemplated sale.
In the event that Robert E. Norton predeceases Clifford or
Kidist Norton, then this agreement is null and void and no part
shall be given effect. This agreement shall also become null and
void upon the death of the' survivor: of either Clifford or Kidist.
This agreement supersedes and supplants all prior agreements
whether oral or written between the parties.
Witness:
/az
1 (seal)
-ra Cli O E. Norton
(seal)
Kidist K. Norton
-? (seal)
Mildred D. Norton
EXHIBIT "C"
::& ()Son
0?. hUG 3 AID 8 09
DEED
This Deed is made the 1" day of August, 2006
BETWEEN
KIDIST K. NORTON, widow, of Cumberland County, Pennsylvania, GRANTOR
n
FISHING CREEK VALLEY ASSOCIATES, L.P., a Pennsylvania Limited
Partnership, of Dauphin County, Pennsylvania, GRANTEE
WITNESSETH
That the Grantor, in consideration of SIX HUNDRED THOUSAND AND ONE
DOLLARS ($600,001.00), paid by the Grantee to the Grantor, the receipt whereof is
hereby acknowledged, does hereby grant and convey to the Grantee:
ALL THAT CERTAIN piece or lot of ground with the improvements thereon
situated in Hampden Township, Cumberland County, Pennsylvania, bounded and
described as follows, to wit:
BEGINNING at a pin in the center of the State Highway; thence along lands now
or late of C. Walters, North 3 degrees West 741.45 feet to a post; thence along land now
or late of the said Rossvill Hoffman, North 88 degrees East 273 feet to a post; thence
along a proposed road and land now or late of the said Rossvill Hoffman, South 1 degree
West 748 feet to a pin in the center of the said Highway; thence along the same, South 88
degrees West 225 feet to the Place of BEGINNING.
CONTAINING 4 % acres.
HAVING thereon erected a two and one-half (2 '/2) story frame dwelling.
Wx 275 PAGE5000
BEING THE SAME PREMISES which Ernest L. Norton and Mildred D.
Norton, his wife, granted and conveyed to Clifford E. Norton and Kidist K. Norton, his
wife, Grantor herein, by deed dated August 10, 1989 and recorded in the Office of the
Recorder of Deeds for Cumberland County, Pennsylvania in Deed Book C, Volume 34,
Page 458. Clifford E. Norton died on March 4, 2006, whereupon title vested in Kidist K.
Norton, Grantor herein.
SUBJECT TO ALL covenants, restrictions, reservations, easements, conditions
and rights appearing of record; and SUBJECT to any state of facts an accurate survey
would show.
TOGETHER will all and singular the buildings, improvements, streets, alleys,
passages, ways, water courses, rights, liberties, privileges, hereditaments and
appurtenances whatsoever thereunto belonging, or in any wise appertaining, and the
reversions and remainders, rents, issues and profits thereof; and all the estate, right, title,
interest, property, claim and demand whatsoever of the Grantor, in law, equity, or
otherwise howsoever of, in and to the same and every part thereof.
TO HAVE AND TO HOLD the said lot or piece of ground above described.
hereditaments and premises hereby granted or mentioned and intended so to be, with the
appurtenances unto the Grantee, to and for the only property use and behalf of the
Grantee, forever.
AND the Grantor does by the presents covenant, grant and agree to and with the
Grantee, that they, the Grantor, shall and will warrant and forever defend, all and singular
the hereditaments and premises hereinabove described and granted, or mentioned and
intended so to be, with the appurtenances, unto the Grantee, against them, the Grantor,
and against all and every person or persons whomsoever lawfully claiming or to claim the
same or any part thereof, by from or under the Grantor, and Grantee shall mean the
Grantee and the heirs and assigns of the Grantee.
IN WITNESS WHEREOF, the Grantor and hereunto set her hand and seal, the day and
year first written above.
ATTEST:
Witnes
Kidist K. Norton
U
WX 275 PAtES001
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND : SS
On this, the I -"-day of ?Q( )St , 2006, before me, a Notary Public,
the undersigned officer, petsonally appeared N=T I. NORTON who
acknowledged herself to be the person whose seal is attached hereto, and having
executed the foregoing instrument for the purpose therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
Ald Wd'?? -
Notary Public
COMMONWEALTH OF PENNSYLVANIA
NOTARIAL SEAL
LORI A. RICHARD, Notary Publk
Lemoyne Boro., Cumberland County
My Commission Expires Nov. 12, 2006
Member, Fennsiftnia Assockdon of NoWn
CERTIFICATION OF ADDRESS
I, hereby certify that the precise address of the Grantee herein is as follows:
7100 Fishing Creek Valley Road
Harrisburg, PA 17112
:??k -
A ey or Agent for Grantee
9-
N ?Q? B O O C} O p S r?+ ??+ Q O
rr
a 1V ti
I Cert I fy this to he record
Cumberland COUn p
a .?
Recorder of
Deeds
W aorni 275 PAWf5 =
C.11
CPI
ROBERT E. NORTON, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
V. : No. 2007-729 CIVIL TERM
KIDIST K. NORTON, : CIVIL ACTION
Defendant
CERTIFICATE OF SERVICE
I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy of the
foregoing document upon the persons indicated below by first class United States mail, postage paid in
Carlisle, Pennsylvania 17013, on the date set forth below:
LESLIE D. JACOBSON, ESQUIRE
8150 DERRY STREET, SUITE A
HARRISBURG, PA 17111-5260
Date: April & 2007 IRWIN & McKNIGHT
" ?Ixt- jy A ZZO
4 'ro' ? LCA
Dougl G. M' er, Esquire
Supreme Court I.D. No. 83776
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, Pennsylvania 17013-3222
(717) 249-2353
9
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Leslie D. Jacobson
Attorney for Defendant
The Law Offices of Leslie David Jacobson
8150 Derry Street, Ste. A
Harrisburg, Pennsylvania 17111-5260
Ph: (717) 909-5858
Fx: (717) 909-7788
ROBERT E. NORTON
PLAINTIFF
V.
KIDIST K. NORTON
DEFENDANT
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
b1-1A3
No.: 2@69-92 Civil Term
CIVIL ACTION
JURY TRIAL DEMANDED
NOTICE TO PLEAD
TO: Robert E. Norton, Plaintiff,
c/o Mr. Douglas G. Miller
Mr. Matthew A. McKnight
Irwin & McKnight
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, PA 17013-3222
YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE
ENCLOSED PRELIMINARY OBJECTIONS WITHIN TWENTY (20) DAYS FROM
SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU.
Respectfully submitted,
Dated: June 13, 2007
THE LAW OFFICES ()IALESLIE DAVID JACOBSON
8 50 Derty Street
sb g, PA 17111
717".5858
FAX: 717.909.7788
Attorney for Defendant.
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Leslie D. Jacobson
Attorney for Defendant
The Law Offices of Leslie David Jacobson
8150 Derry Street, Ste. A
Harrisburg, Pennsylvania 17111-5260
Ph: (717) 909-5858
Fx: (717) 909-7788
ROBERT E. NORTON
PLAINTIFF
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
KIDIST K. NORTON
DEFENDANT
No.: 2007-729 Civil Term
CIVIL ACTION
: JURY TRIAL DEMANDED
DEFENDANT KIDIST K. NORTON'S PRELIMINARY OBJECTIONS TO
PLAINTIFF ROBERT E. NORTON'S COMPLAINT
AND NOW COMES Defendant Kidist K. Norton ("Defendant"), by and through her
attorneys the Law Offices of Leslie David Jacobson, and hereby submit the following
Preliminary Objections to the Complaint of Plaintiff Robert Norton ("Plaintiff'), and in support
thereof state as follows:
1. Plaintiff commenced this action with the filing of a Praecipe for Issuance of a
Writ of Summons that was issued against Defendant on February 6, 2007.
2. Defendant subsequently filed Praecipe for Rule to File a Complaint that was
issued against Plaintiff on April 6, 2007.
3. Plaintiff filed his Complaint on or about April 30, 2007.
4. Plaintiff avers in his Complaint that prior to entering a nursing facility, Ernest L.
and Mildred D. Norton agreed to give their residence located at 4120 Wertzville Road, Enola
("Property") to their son Clifford and his wife, Defendant "with the oral condition that when the
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property would be sold, half of the net proceeds would be split equally between Plaintiff and his
bother as inheritance". See Plaintiffs Complaint, ¶4.
5. A true and correct copy of the recorded August 10, 1989 Deed transferring the
property to Clifford Norton (now deceased) and Defendant is attached and incorporated by
reference as though fully set forth as exhibit "A".
b. Plaintiff further avers that Defendant, Mildred D. Norton, and Clifford E. Norton
"signed an agreement stating that upon the sale of the Property and after reimbursement for
improvements and taxes, any proceeds in excess of $100,000.00 were to be divided with one half
going to Clifford E. Norton and Defendant and the other half to Plaintiff." See Plaintiffs
Complaint, ¶9.
7. On or about April 13, 2007, Plaintiff served on Defendant a notice that he
intended to take the deposition of Mildred R. Norton on May 2, 2007.
8. On May 2, 2007, Plaintiff conducted the deposition of Mildred Norton wherein
she gave testimony concerning the issues in Plaintiffs Complaint. A true and correct copy of the
Deposition of Mildred D. Norton is incorporated by reference and is more fully set forth as
exhibit "B".
9. During the Deposition, Counsel for the Defendant asked Plaintiff to produce an
original copy of the purported December 25, 1992 agreement between the parties.
10. Counsel for Plaintiff stated that an original of the agreement could not be
produced and that Plaintiff could only produce a copy of said agreement. See Deposition of
Mildred Norton, P. 19 18-13.
11. Mildred Norton testified that she does not remember signing any other agreement
regarding the transfer of the property other than the August 10, 1989 deed transferring the
If
Property to Clifford Norton and Defendant. See Deposition of Mildred Norton, P. 12 ¶21-25 - P.
13 ¶1-9.
12. Mildred Norton further testified that she does not remember seeing or signing the
purported December 25, 1992 agreement, stating on the record that "Oh, I don't remember that
except lately somebody, I think, showed it to me. See Deposition of Mildred Norton, P. 13 ¶7-9.
13. Mildred Norton also testified that it was her and her late husband's intent to give
the property to her son Clifford and recalled him from Germany while he was on active duty in
the military so she and her husband could give him and Defendant the property. See Deposition
of Mildred Norton, P. 15 ¶18-25 and P. 16 ¶1-4.
PRELIMINARY OBJECTIONS PURSUANT TO PA.R.C.P. 1028(a)(4) - DEMURRER
TO COUNT I OF PLAINTIFF'S COMPLAINT FOR BREACH OF CONTRACT
14. Defendant incorporates paragraphs 1 through 13 above as though set forth at
length.
15. Pa.R.C. P. 1028(a)(4) permits a party to file Preliminary Objections because of
the legal insufficiency of a pleading. When considering Preliminary Objections to a Complaint
in the nature of a demurrer, the court's review is limited to the content of the pleading. In Re
Adoption of S.P.T., 783 A.2d 779, 782 (Pa. Super. Ct. 2001).
16. A demurrer should be sustained when the law is free from doubt that, based on the
pleaded facts, no recovery is possible. Willet v. Pa. Med. Catastrophe Loss Fund, 702 A.2d 850
(1997), and no amendment of the complaint could cure the defects. Hohensee v. Shape, 395
A.2d 636 (Pa. Commw. Ct. 1978).
17. Pursuant to Pa.R.E 1003, Defendant objects the use of the copy of the purported
December 25, 1992 agreement attached in support of Plaintiffs Complaint.
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18. Pa.R.E. 1003 provides that "A duplicate is admissible to the same extent as an
original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the
circumstances it would be unfair to admit the duplicate in lieu of the original. Pa.R.E. 1003.
19. Defendant did not sign the purported agreement. See Affidavit of Kidist K.
Norton attached and incorporated by reference as exhibit "C".
20. Moreover, the testimony of Mildred Norton does not support Plaintiff's case
against Defendant. Mildred Norton does not remember signing nor seeing the agreement up
until someone recently showed it to her. See Deposition of Mildred Norton, P. 13 ¶7-9.
21. Alternatively, because Defendant raises a genuine issue as to the authenticity of
the purported agreement, the duplicate is not admissible as evidence to support Plaintiff's case
and therefore Plaintiff cannot prevail on Count I of his Complaint.
22. Because Plaintiff's whole case relies on a document for which an original cannot
be produced, it would be unfair to admit the duplicate in lieu of the original.
23. Even if the Court holds that the agreement is admissible as evidence, the
agreement is invalid because it lacks consideration.
24. The agreement states that "[I]n consideration of the transfer of real estate and the
improvements thereon known as 4130 Wentzville Road, Enola, Pennsylvania, from Mildred D.
and Ernest L. Norton to Clifford and Kidist K. Norton, recorded at Deed Book C34, page 458, in
the Cumberland County Recorder of Deeds Office."
25. The agreement on its face recites that the consideration supporting the agreement
is a transfer of property which occurred three years earlier than the date of the purported
agreement.
26. The plain language of the agreement, which speaks for itself, purports past
consideration and past consideration is insufficient to support a contract in Pennsylvania.
Community Sports Inc v. Denver Ringsby Rockets, Inc., 240 A.2d 832 (Pa. 1968). See also
EMy v. Sauer, 237 Pa. 330 (1912).
27. Therefore, Plaintiff, as a matter of law has failed to set forth a legally cognizable
claim for breach of contract against Defendant because the document is inadmissible as the
original cannot be produced or because the purported December 25, 1992 agreement between the
parties is invalid.
WHEREFORE, Defendant Kidist K. Norton, respectfully requests that this Honorable
Court sustain her Preliminary Objection and dismiss Count I of Plaintiff's Complaint in its
entirety, with prejudice, and for any other relief deemed just and appropriate.
PRELIMINARY OBJECTIONS PURSUANT TO PA.R.C.P. 1028(a)(4) - DEMURRER
TO COUNT II OF PLAINTIFF'S COMPLAINT FOR UNJUST ENRICHMENT
28. Defendant incorporates paragraphs 1 through 27 above as though set forth at
length.
29. Plaintiff also relies on the purported December 25, 1992 agreement to plead a
cause of action for Unjust Enrichment against Defendant.
30. Even if the agreement is held to be admissible as evidence and further as a valid
and enforceable contract, the Plaintiff has failed to state a cause of action against Defendant for
unjust enrichment.
31. In Pennsylvania, it is well settled that "the elements of unjust enrichment are
benefits conferred in defendant by plaintiff, appreciation of such benefits by defendant and
acceptance and retention of such benefits under such circumstances that it would be inequitable
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for defendant to retain the benefit without payment of value." Styler v. Hugo, 619 A.2d 347 (Pa.
Super. Ct. 1993).
32. In Count 11 of Plaintiff's Complaint, Plaintiff has not averred that he has conferred
any benefit on Defendant that would entitle him to relief under an unjust enrichment theory.
33. Count II does not plead the requisite elements required to sustain a cause of action
for Unjust Enrichment.
WHEREFORE, Defendant Kidist K. Norton, respectfully requests that this Honorable
Court sustain her Preliminary Objection and dismiss Counts II Plaintiff's Complaint in its
entirety, with prejudice, and for any other relief deemed just and appropriate.
PRELIMINARY OBJECTIONS PURSUANT TO PA.R.C.P. 1028(a)(4) - DEMURRER
TO COUNT III OF PLAINTIFF'S COMPLAINT FOR BREACH OF CONDITIONAL GIFT
34. Defendant incorporates paragraphs 1 through 33 above as though set forth at
length.
35. Plaintiff relies on the Deed dated August 10, 1989 and on the purported December
25, 1992 agreement between the parties to support a cause of action for Breach of Conditional
Gift against Defendant.
36. The Deed itself nor Mildred Norton's testimony support Plaintiff's claim that the
gift to Clifford Norton and Defendant was anything less than a gift of fee simple ownership.
37. The Deed, which speaks for itself, is clear on its face that no right was reserved in
favor of Plaintiff that would entitle him to any proceeds from the sale of the Property.
38. Moreover, Mildred Norton testified that at the time of the transfer, it was her and
her husband's intent to giver her son Clifford the property, because he was the oldest son. See
Deposition of Mildred Norton, P. 15 ¶18-25 and P. 16 ¶1-4.
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39. Even if the Court would construe Mildred Norton's testimony as supporting a
cause of action for breach of a conditional gift, her testimony is barred by the Parol Evidence
rule because her testimony directly contradicts the clear and unambiguous language of the
August 10, 1989 Deed.
WHEREFORE, Defendant Kidist K. Norton, respectfully requests that this Honorable
Court sustain her Preliminary Objection and dismiss Counts III of Plaintiff's Complaint in its
entirety, with prejudice, and for any other relief deemed just and appropriate.
PRELIMINARY OBJECTIONS PURSUANT TO PA.R.C.P. 1028(a)(4) - DEMURRER
TO COUNT IV (WRONGFUL CONVERSION) AND COUNT V (CONSTRUCTIVE TRUST)
OF PLAINTIFF'S COMPLAINT
40. Defendant incorporates paragraphs 1 through 39 above as though set forth at
length.
41. Count IV and Count V of Plaintiff's Complaint are derivative claims to Counts I,
II, and III of Plaintiff s Complaint and would only provide potential remedies to Plaintiff in the
event he is successful in proving Counts I, II, or III.
42. Even if Plaintiff has stated causes of action in Counts IV and V against
Defendant, relief cannot be granted unless Plaintiff can succeed under Counts I, II, or III, which
as discussed above, Plaintiff cannot as a matter of law.
43. Plaintiff, as a matter of law, cannot show that he was in any way entitled to the
property or had any legal interest in the property after it was transferred to Defendant.
44. In Count IV, therefore, Plaintiff has failed to state a cause of action against
Defendant in that she was obligated to pay Plaintiff any monies received from the sale of the
Property, or that Defendant wrongfully converted the Plaintiff's inheritance.
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45. In Count V, therefore, Plaintiff has failed to state a cause of action against
Defendant for Constructive Trust.
WHEREFORE, Defendant Kidist K. Norton, respectfully requests that this Honorable
Court sustain her Preliminary Objections and dismiss Counts IV and V of Plaintiff s Complaint
in their entirety, with prejudice, and for any other relief deemed just and appropriate.
Respectfully submitted,
THE LAW OFFICES' LESLIE DAVID JACOBSON
Dated: June 13, 2007
es a D. J cobson
5267
8150 D Street
urg, PA 17111
717.909.5858
FAX: 717.909.7788
9
Exhibit A
r.-?y ?. we., •IY.I. M ?
V89 AUG I0 PH L!
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MADE THE 1O day of August in the year
of our Lord one thousand nine hundred eighty-nine (1989 )
BETWEEN ERNEST L. NORTON and MILDRED D. NORTON, his wife,
of Hampden Township, Cumberland County, Pennsylvania,
hereinafter called
Grantors ,
and CLIFFORD E. NORTON and KIDIST K. NORTON, his wife,
of Hampden Township, Cumberland County, Pennsylvania,
hereinafter called
Grantees
WITNESSETH, that in consideration of One and no/100------------------------
------------------------------($1.00)-------------------------DoUarl(,
in hand paid, the receipt whereof is hereby acknowledged, the said grantors do hereby grant
and convey to the said grante6 their heirs and assigns as tenants by the
entireties
ALL that certain piece or lot of ground with the improvements
thereon situated in Hampden Township, Cumberland County, Pennsylvania,
bounded and described as follows, to wit:
BEGINNING at a pin in the center of the State Highway; thence
along lands now or late of C. Walters, North 3 degrees West 741.45
feet to a post; thence along land now or late of the said Rossvill
Hoffman, North 88 degrees East 273 feet to a post; thence along a
proposed road and land now or late of the said Rossvill Hoffman,.
South 1 degree West 748 feet to a pin in the center of the said
Highway; thence along the same, South 88 degrees West 225 feet to.
the Place of BEGINNING.
CONTAINING 4 1/4 acres.
i:?? C34 en- 458
`'?•? HAVING thereon erected a two and one-half (2 1/2) story
. frame dwelling.
BEING the same property which Mary E. Hallman and Elvira C.'--
Hallman, granted and conveyed to Ernest L. Norton and Mildred D.
Norton, his wife, Grantors herein, by deed dated December 28,
1984 and recorded in the Office of the Recorder of Deeds for
Cumberland County, Pennsylvania in Deed Hook "H", Volume 31,
Page 753•
This is a non-taxable transfer from parents to son and
daughter-in-lair.
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tm C 34 FAGS 459
-¦
AND the said grantors hereby covenant and agree that t:%e y
will warrant generally the property hereby conveyed.
IN WITNESS WHEREOF, acid grantors have hereunto act their hands and aea$
the day and year first above written.
' SiQncD, $tdttD JlJTD ?etibJ:rtD '?..:.......... s:.L
ERNEST L. NORTON
in tfjc Vrrscnrc of
.....__..... .._................................................... .._....» as ai
•-- .. .. _.. -....___..._....... n
MILDRED D. NORTON
._.... _ ........................................................................ sa
State of PENNSYLVANIA
aa.
County of CUMBERLAND
On this, the l day of August 1989 , be/ore me,
the undersigned officer, personally appeared Ernest L. Norton and
Mildred D. Norton, his wife
known to me (or satisfactorily proven) to be the persons whose names are subscribed to the
within instrument, and acknowledged that they executed same for the purposes therein
contained.
IN WITNESS WHEREOF, I hereunto set my,4ai4 and oZcial seal.
?T!QjiAL
......................................
Title of Officer.
NOTARIAL SEAL
KTZI A ACRRISON . NOTARY PUBLIC
CARL'S:: 5000. CU1145ERAA`JO C074 TY
MYCOMMIS.MON EXPIRES OEC. 15. 1992
Member. Pennsonia Association of Notaries
I do hereby certify that the precise residence and complete post office address
of the within named granteM is 9/30 6LJU't 4/.,/le •PpcroI
?? / ?D=Sr j
August /01989.
acs 460 .. .........• ................................
Nox C34 ..........................
Grant s
Attorney for........... - .....
Exhibit B
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ROBERT E. NORTON,
Plaintiff,
Vs.
KIDIST K. NORTON,
Defendant.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No. 2007 - 723 CIVIL TERM
CIVIL ACTION
JURY TRIAL DEMANDED
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C I
OPY
DEPOSITION OF: MILDRED D. NORTON
TAKEN BY: Plaintiff
BEFORE: Amy R. Fritz, R.P.R.
Notary Public
DATE: May 2, 2007, 2:30 p.m.
PLACE: Church of God Home
801 North Hanover Street
Carlisle, Pennsylvania
APPEARANCES:
IRWIN & McKNIGHT
BY: DOUGLAS G. MILLER, ESQUIRE
and
MATTHEW A. McKNIGHT, ESQUIRE
FOR - PLAINTIFF
LAW OFFICES OF LESLIE DAVID JACOBSON
BY: LESLIE D. JACOBSON, ESQUIRE
FOR - DEFENDANT
fymtl ks
rt Reporting Services
00-863-3657 • 717-258-3657 • 717-258-0383 fax
courtreporters4u @aol. cam
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INDEX TO TESTIMONY
DEPONENT EXAMINATION PAGE
Mildred D. Norton By Mr. Miller 3
By Mr. Jacobson 17
INDEX TO EXHIBITS
NO. DESCRIPTION PAGE
1 Deed 8
2 Agreement 12
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STIPULATION
It is hereby stipulated by and between the
respective parties that signing, sealing, certification and
filing are waived; and that all objections except as to the
form of the question are reserved until the time of trial.
MILDRED D. NORTON, called as a witness, being
duly sworn, was examined and testified as follows:
EXAMINATION
BY MR. MILLER:
Q. Mildred, can you state your full name?
A. Mildred Dorothy Hallman Norton.
Q. And how do you spell your last name?
A. Norton?
Q. Yes.
A. N-o-r-t-o-n.
Q. And do you know what your date of birth is?
A. August 12, 1912.
Q. And where do you currently reside?
A. Huh?
Q. Where do you reside?
A. This home here.
Q. And do you know what this home is called?
A. Church of God.
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Q. Do you know how long you've lived here?
A. Oh, dear. 20 some years, I guess.
Q. Do you remember where you lived before the home?
A. Before this home?
Q. Yes.
A. Yeah. The white home in the trailer home out
in -- I can't think of the name of the road. You'll have
to bear with me; I'm --
Q. That's okay. 4120 Wertzville Road, is that
where you lived?
A. Yeah, uh-huh.
Q. And how long did you live there?
A. I don't know. I don't know if Bob remembers or
not.
Q. Well, you lived at the Wertzville Road home
before you moved here. Is that correct?
A. Uh-huh.
Q. 20 some years ago? Is that a yes?
A. Yes.
Q. Make sure you say yes or no so that we can make
sure we get an accurate answer. Okay? And I should tell
you, too, if there's any question that you don't understand
and you need us to repeat something, just let us know and
we'll repeat the question. Okay? And if you need to take
a break, we can take a break at any time also.
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A. If I think of what?
Q. If we need to take a break.
A. Oh.
Q. If you need to get a drink, go to the bathroom
or something, we can do that. Okay? Do you understand?
A. Okay.
Q. Who lived at 4120 Wertzville Road with you?
A. 21 -- see, I don't remember.
ROBERT NORTON: It's the trailer.
MR. MILLER: You can't say anything.
THE DEPONENT: 2140, I believe, and 2130 was the
other one.
BY MR. MILLER:
Q. Well, what was on the property? Was there more
than one building?
A. Yeah. There was a white building, and then we
put a trailer in it in on the land so that I could look
after my sister.
Q. And when you say we put a trailer in, who is we?
A. My husband and I.
Q. You and your husband? And your husband's name
is Earnest. Is that correct?
A. Earnest.
Q. Did both of you live at the property at
Wertzville Road?
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A. Um-hum.
Q. Did you live in --
A. We lived in the house, and mostly we lived in
the trailer.
MR. JACOBSON: I don't want to object to every
question that's leading, so I'm going to let you go, and
you're going to let me go. Fair enough?
MR. MILLER: Yes.
MR. JACOBSON: Because I'm sure a judge would
permit some leading.
MR. MILLER: Yes, and I will try to keep that to
a minimum.
MR. JACOBSON: Okay.
BY MR. MILLER:
Q. Did anyone live in the trailer with you and your
husband?
A. Me and my husband. Well, not at first, but
Kidist and my son, Clifford, lived with -- no. We weren't
all in the trailer at the same time. Now, see, blank. I
can't help you.
Q. Well, did Kidist and Clifford live in the
trailer at some point?
A. Oh, yeah.
Q. Do you remember when that was?
A. Well, just before he died.
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Q. Just before who died?
A. Clifford died.
Q. So your son, Clifford, also died. Is that
correct?
A. Yeah.
Q. Do you remember when he died?
A. Clifford -- no, I don't remember when, but I
know it was awful darn quick. It was within a minute.
Said he had a headache, and he just went in the kitchen to
get medicine, and she heard a bump and -- this is the way I
hear the story, as I wasn't there for it. She went back in
there and he was dead. Shock to her and everybody else.
Q. Was your son, Clifford, living at the property
when he died?
A. Uh-huh.
Q. And your daughter-in-law, Kidist, was also
living there?
A. Um-hum.
Q. Is that a yes?
A. Huh?
Q. You need to say yes or no.
A. Oh. Yes.
Q. Now, do you remember transferring the real
estate to your son and his wife?
A. All I can sort of remember is my husband and I
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planning that Clifford and Bob are the two, the only two
kids we had -- I forgot what I was going to give you. I
knew I wouldn't be any good at this.
Q. That's okay. We'll back up. So in addition to
Clifford, you also have another son. Is that correct?
A. Robert.
Q. Robert's your other son?
A. Um-hum.
Q. Is that a yes or no?
A. Yes.
Q. Do you remember transferring the property at
Wertzville Road to your son, Clifford?
A. Well, I did it; I must have done it.
Q. Do you remember when that happened?
A. Uh-uh. No.
Q. Do you remember, was it before you moved into
the nursing home here?
A. What?
Q. Did you transfer the property before you moved
into the nursing home?
A. I guess I'll have to say no. I don't...
Q. No, or you're not sure?
A. I'm not -- well, I'm not sure.
(Plaintiff's Exhibit No. 1 was marked.)
BY MR. MILLER:
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Q. We're showing you what we've now marked as
Plaintiff's Exhibit Number 1. Do you recognize this
document?
A. Between Earnest and Mildred.
Q. Is that your name listed at the top?
MR. JACOBSON: You asked her if she recognized
the document. Let's see if she can answer that question.
THE DEPONENT: Yeah. That's my -- if that's the
one you mean, that's me. Is that the one you're talking
about?
BY MR. MILLER:
Q. Do you recognize this document?
A. I wouldn't say, no.
Q. Let's try it this way: Let's turn to the last
page of the document. Is that your signature near the top?
A. Earnest L. and Mildred D. That's mine, yeah.
Q. Is that your signature there above where your
name is printed?
A. You mean this?
Q. At the top of the document above where your name
is printed, is that your signature?
A. This one?
Q. Yes.
A. Yeah, that's mine.
Q. Do you remember signing this document?
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A. No. It's my signature, though. But, no, I
don't remember. But it's like I've been telling everybody,
I forget anything right away.
Q. What's the date that's indicated at the top of
the document?
A. What's the date?
Q. The first page.
A. Come again.
Q. Let's flip back to -- so that's your signature
on the last page, right?
A. Yeah, that's my signature.
Q. What's the date on the top of the first page?
A. August 10, 189.
Q. And what's the title of the document?
A. This? The title of what?
Q. What's the title of this exhibit?
A. I don't get it. I don't know what you're
asking.
MR. MILLER: Well, you'll let me lead her a
little bit?
MR. JACOBSON: The document speaks for itself.
You asked her if she remembered it. She said no. I mean,
that's as far as you can go.
MR. MILLER: Well, she's verified her signature.
MR. JACOBSON: It's notarized. I don't have any
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problem with the document speaking for itself.
BY MR. MILLER:
Q. Do you remember in 1989 transferring the
property at Wertzville Road to your son and
daughter-in-law?
MR. JACOBSON: She already said no.
THE DEPONENT: I don't remember, but I must have
done it.
BY MR. MILLER:
Q. Do you remember any conversations with your son,
Clifford, about transferring the property to him?
A. No, sir.
Q. Do you remember any conversations that you had
with your daughter-in-law, Kidist, about transferring the
property?
A. I don't remember anything with Kidist and the
property. What I don't understand is how in the world they
got away with Bob's money just like that. And she was no
more entitled to that than the man on the moon.
Q. When you say Bob's money, what are you referring
to?
A. The money was supposed to go to Bob and
Clifford, the two, my two sons. They were supposed to get
the property. They're the only two I remember.
Q. Was that always your understanding that the two
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boys were supposed to get the property?
A. Um-hum. And Clifford, after Clifford's -- well,
the money they owed, after that was paid, half of the money
was supposed to go to Clifford and the other half, to my
way of thinking, was supposed to go to Bob. And as it
turns out, Kidist has it all. I don't know how she did it.
Q. Was Clifford or Kidist supposed to keep the
property for themselves?
A. Well, when he died, she couldn't really to know
what was what. No, I don't think they thought of anything
other than themselves.
Q. Well, I'm asking what your understanding was.
Was the property --
A. My understanding was the property was supposed
to be in two pieces; one was Bob and one was Clifford.
When Clifford died, that left Bob. But Bob should still
have had his half of, you know -- Clifford was half and Bob
was half. But as it turns out, Bob didn't get a cent.
Kidist got it all. And how in the world she and her lawyer
did that, I don't know. I just don't know.
Q. Do you remember signing any other documents?
A. Do I remember what?
Q. Do you remember signing any other documents with
regard to the property?
A. I don't remember.
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(Plaintiff's Exhibit No. 2 was marked.)
THE DEPONENT: I can't say I do when I don't.
BY MR. MILLER:
Q. I'm going to show you what we've now marked as
Plaintiff's Exhibit Number 2. Do you see this paper in
front of you?
A. Oh, I don't remember that except lately
somebody, I think, showed it to me. But since my eyes are
so bad and I can't read, I'm at a loss.
Now, this is my sister's signature. But just
because that's so doesn't say it actually is, if you know
what I mean.
Q. Well, let me lead you through it here. I'm
going to turn to the second page of this document that
we've marked as Plaintiff's Exhibit Number 1. Do you see
where your name is typed at the bottom of the page?
A. Yeah.
Q. Is that your signature above that typed name?
A. Clifford, Kidist and Mildred is what it says,
and that's my writing.
Q. Okay. Do you recognize your son's signature?
A. Yeah.
Q. Is that his signature on the document?
A. Yeah, that's it.
Q. And do you recognize Kidist's signature?
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A. Well, in a way. Isn't very often I see it, but
I couldn't swear but --
Q. That could be her signature?
A. Yeah. As long as these are ours, I imagine
that's hers.
Q. And whose name is written to the left under the
witness line?
A. What about it?
Q. Whose name is written to the left on the bottom
of the second page?
A. It's my sister. She was two years older than I
am.
Q. And what's that sister's name?
A. Elvira Hallman.
Q. She is also deceased. Is that correct?
A. Um-hum.
Q. Do you remember when she died?
A. At least three years ago.
Q. Do you remember signing any papers in front of
your sister?
A. Uh-uh.
Q. Do you know when you might have signed this
document or where you might have signed the document?
A. I'm not guessing when I don't know it. I
believe in truth. If you can't tell that, then there's
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something wrong.
Q. What was your son, Clifford's, job? Where did
he work?
A. Well, he was in the Air Force.
Q. Was he stationed in the United States?
A. Well, he was stationed all around.
Q. Do you remember where he was stationed last?
A. Germany? Was Germany -- that's where he met
Kidist.
Didn't he meet you --
Q. Well, you can't ask her a question right now.
A. Sorry.
Q. Germany, is that what you think?
A. Yeah, I think it was Germany. They came from
Germany to this place we're fussing about.
Q. The Wertzville Road property?
A. Yeah.
Q. Do you remember why they left Germany to come
back to Wertzville Road?
A. I just know he was stationed there.
Q. You don't know why he came back?
A. Why he came back here?
Q. Yes.
A. Yes. We wanted to give him the property.
Q. And do you remember why you wanted to do that?
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A. Did I know why what?
Q. Why did you want to have the property
transferred to Clifford?
A. Well, he was the oldest son, for one thing.
Q. Were you going to be going into the nursing home
with your husband at that point?
A. Well, we did both get in here together, and he
died here.
Q. Your husband died here?
A. Yeah.
Q. Do you remember what year that was?
A. No.
Q. Did you ask Clifford to come back to the United
States?
A. We called him and asked if he would like to have
the property, and it was decided to be for the two of them.
I guess we didn't know Kidist signed.
Q. When you say for the two of them, who do you
mean?
A. Clifford and Bob.
Q. For your two sons. Is that correct?
A. My two sons.
Q. Do you remember what Clifford's response was
when you called him?
A. Well, he seemed to be favorable.
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the same age as you, so I have great respect for you.
Did you hear me?
A. I heard that.
Q. She was born in 1912. So was my father.
Can you remember back at all to 1989? Was your
husband ill in 1989?
A. Well, he had cancer. I guess you could say he
was ill, yeah.
Q. What was Robert doing in 1989? Do you remember?
A. Specifically?
Q. Was he in the service?
A. Partly. Not like 20 years like Clifford was,
but 4, 4 years maybe, 2; whittle it down to 2.
Q. Did Robert have problems with the service?
A. No.
Q. Did Robert have any problems at that time that
you can recall?
A. Not that I recall. My boys didn't have
problems.
Q. Now, do you have a will?
A. I guess I do somewhere.
Q. Do you have it here?
A. Well, that's a good question. It must be here
somewhere. Maybe it's in the safety box.
Q. You think we could --
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A. I know I had -- yeah, I had a will.
Q. If we ask, do you think we could see a copy of
it today?
A. If I knew whe re to find it.
MR. JACOBSON: Do you have a copy of it?
MR. MILLER: I don't think we do. We could
probably get one, though.
MR. JACOBSON: Do you have an original of this
document?
MR. MILLER: I don't believe so. I think all we
have is a copy.
MR. JACOBSON: No originals? Does your client
have an original?
Off the record.
(Discussion held off the record.)
THE DEPONENT: I'd like to know how you and
Kidist got your hands onto Bob's money, that he didn't get
anything, that you got it all.
BY MR. JACOBSON:
Q. Well, ma'am, I'd like to find out how I got my
hands on it too because I don't have any hands on anything.
A. Because he's entitled to his share. She isn't
entitled to all of it.
Q. That may be so. I want to ask this question
without insulting you: Do you have any assets today?
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A. Do I have any access?
Q. Assets. Do you have any money today? Do you
own anything today?
A. Well, they say I have a very, very, very little
bit, not much.
Q. Who's they?
A. Hum?
Q. Who is they? Who says that?
A. Didn't get it.
Q. Who says you have very little? You said they
say. Who is that?
A. Well, her nephew is -- what's the word? Well,
he looks after me and pays bills and things.
Q. Power of Attorney?
A. Yes. He has Power of Attorney. Well, my son
has Power of Attorney. But being in Germany, we needed
someone closer here, so Steve is my Power of Attorney,
yeah.
Now, how much was his money anyhow that was
taken?
Q. Well, that's what I was going to ask you, but if
you don't remember --
A. No, I don't remember. I don't remember hardly
anything.
Q. Nothing at all?
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A. Uh-uh.
Q. I don't blame you.
A. Well, that's no excuse. When Clifford died,
something went from me. And from then, I can't hear good,
I can't see good. I'm a mess.
Q. I don't think you're a mess at all.
A. But I do.
Q. I think you're pretty terrific, to be truthful.
A. I don't feel like I am helping anybody anywhere.
I've been praying for just so long, and it don't come.
Q. Can we stop and see A. But I do want Bob to have something out of this
property. It's not fair that he don't.
Q. You'd like to see Bob have something out of this
property now, wouldn't you?
A. He should. He should.
MR. JACOBSON: Can we stop and see if we can get
a copy of her will? I'm under the impression that they
keep her documents here.
MR. MILLER: Let me step out with Bob and talk
to him a second.
(The deposition concluded at 3:10 p.m.)
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COMMONWEALTH OF PENNSYLVANIA )
SS.
COUNTY OF CUMBERLAND )
I, AMY R. FRITZ, R.P.R., a Court
Reporter-Notary Public authorized to administer oaths and
take depositions in the trial of causes, and having an
office in Carlisle, Pennsylvania, do hereby certify that
the foregoing is the testimony of MILDRED D. NORTON.
I further certify that before the taking of
said deposition the witness was duly sworn; that the
questions and answers were taken down stenotype by the said
Reporter-Notary, approved and agreed to, and afterwards
reduced to computer printout under the direction of said
Reporter.
I further certify that the proceedings and
evidence are contained fully and accurately in the notes
taken by me on the within deposition, and that this copy is
a correct transcript of the same.
In testimony whereof, I have hereunto
inscribed my hand this 17th day of May, 2007.
F' `i
Nota Public
NOTARIAL SEAL
AMY R. FRITZ, NOTARY PUBLIC
CITY OF CARLISLE, CUMBERLAND COUNTY
MY COMMISSION EXPIRES MAY 23, 2010
'E9 AUG 10 PtS 4 US
r
MADE THE day of August in the year
of our Lord one thousand nine hundred eighty-nine (1989 )
BETWEEN ERNEST L. NORTON and MILDRED D. NORTON, his wife,
I
of Hampden Township, Cumberland County, Pennsylvania,
hereinafter called
• Grantors ,
and CLIFFORD E. NORTON and KIDIST K. NORTON, his wife,
of Hampden Township, Cumberland County, Pennsylvania,
hereinafter called
Grantee s
WITNESSETH, that in consideration of One and no/100------------------------
------------------------------.($1.00)-------------------------DoltaW,
in hand paid, the receipt whereof is hereby acknowledged, the said grantors do hereby grant
and convey to the said grantei their heirs and assigns as tenants by the
entireties
ALL that certain piece or lot of ground with the improvements
thereon situated in Hampden Township, Cumberland County, Pennsylvania,
bounded and described as follows, to wit:
BEGINNING at a pin in the center of the State Highway; thence
along lands now or late of C. Walters, North .3 degrees West 741.45
feet to a post; thence along land now or late of the said Rossvill
Hoffman, North 88 degrees East 273 feet toa post; thence along a
proposed road and land now or late of the said Rossvill Hoffman,.
South 1 degree West 748 feet to a pin in the center of the said
Highway; thence along the same, South 88 degrees West 225 feet to.
the Place of BEGINNING.
CONTAINING 4 1/4 acres.
C34 ? ??`- 458
EXHIBIT
0 .11
.HAVT 1G thereon erected a two and one-calf (2 1/2) story
frame dwelling.
3EING the same property which Mary E. Hallman and Elvir a C.*"
Hallman, granted and conveyed to Ernest L. Norton and Mildred D.
Norton, his wife, Grantors herein, by deed dated December 28,
1934 and recorded in the Office of the Recorder of Deeds for
Cumberland County, Penrsylvan3a in Deed Book "B", Volume 31,
Page 753.
This is a non-taxable transfer from parents to son and
daughter-in-law. 'I I
J
eoos C 34 ° 459
J
AA'D .'= =d „ ra-wars L.ereby covenant and agree that they
will warrant gene: ally the property hereby oonveyed.
l
IN WITNESS WHEREOF, said grantors have hereunto act their hands and seah
the day and year first above written.
._............ °eZAL
' J6igttca, ScalrD anD ?DtlibrscD °'-?Y-'`''"-`'°'?••..?• -
ERNEST L. NORTON
in ttt 13rtitntt of
_._..__........ -J........................................ ............. _........ e;s.'?LL
MILDRED D. NORTON
------------ .......................°-.. -------------- .? - _.....__....-..__.-................ ea?L
--- ----- -- [ - - --------------------------------------------
State of PENNSYLVANIA
} aa.
County of CUMBERLAND 1
On this, the l?J day of August , 1989 , before me,
the undersigned officer, personally app red Ernest L. Norton and
Mildred D. Norton, his wife
known to me (or satisfactorily proven) to be the persons whose names . are subscribed to the
within instrument, and acknowledged that they executed same for the purposes therein
contained.
IN WITIVESS WHEREOF, I hereunto set my Aa7d and o eial sealJ
? l
tom: _?-???
i
SEAL
MY FSRrIES DEC. i991
NCT
NQTAA4il .WN S
SERI A. YCFC„SC4 NOTARY Pueuc
ETZI A J,?CTiR: ;Cr J,11'UThAY PU2LIC
CML'^.?: PARO GV.tlER:AMO W.rvrv
CAAL:°..:: F:GF10, CU`15Ei1;/l'ID Co'.J'?TY
idY COMMI;°, CWIAi;:iCN iGtJ JcP1aES 15.1991
Member. Penosrvania AssodaGon of Notaries
................................
Title of Officer.
I do hereby certify that the precise residence and complete post office address
of the within named grantees is 9/30 GCJU'7? U?rIC I ?Ccx?/
August /d'-A 1989.
.........................:......_...
boox L34 ? 460
Attorne Gran s
y for ... .. .........................
,
1
i ¦
i
r
AGRi =ENT
This Agreement is made this S- day of ! '-? .
1992, between Clifford E. Norton and Kidist K. Norton, of Enola,
Pennsylvania, and Mildred D. 2?o_rtor, of Carlisle, Pennsylvania, for
and in consideration of the transfer of real estate and the
improvements thereon known as 4130 Wertzville Road, Enola,
Pennsylvania, from Mildred D. and Ernest L. Norton to Clifford and
Kidist K. Norton, recorded at Deed Book C34, page 453, in the
Cumberland County Recorder of Deeds Office.
It is understood and agreed that at such time that Clifford
or Kidist or both sell, convey or transfer the property at 4130
Wertzville Road, Enola, after deducting the cost of any and all
improvements and taxes paid by Clifford and/or Kidist Norton during
the term of their ownership and all customary costs, the net
proceeds of the sale in excess of $100,000.00 shall be distributed
.one-half (1/2) to Robert E. Norton and one-half (1/2) to Clifford
and Kidist Norton. For purposes of calculating the sales price of
the property, any personal property included in the sale shall be
excluded.
It is further understood that if the property at 4130
Wertzville Road, Enola, is sold, conveyed or transferred for a sum
less than $100,000.00 after deducting the cost of any and all
improvements, then all of the proceeds from the transfer shall-
belong solely to Clifford and Kidist Norton or their heirs,
EXHIBIT -
• a
successors and assigns, and no mone,,rs shall be distributed to
Robert E. Nor=on.
It is further agreed that Clifford and Kidist may, in their
absolute discretion, hold the property as long as either shall
survive and choose to occupy the subject property. This agreement
shall in no event be construed to require the sale of the property
by either Clifford or Kidist Norton or to give Robert E. Norton any
rights to approve or veto a contemplated sale.
In the event that Robert E. Norton predeceases Clifford or
Kidist Norton, then this agreement is null and void and no part
shall be given effect. This agreement shall also become null and
void upon the death of the survivor: of either Clifford or Kidist.
This agreement supersedes and supplants all prior agreements
Whether oral or written between the.parties.
Witness:
n
()(4/ (seal)
Clitro.±E. Norton
(seal)
Kidist K. Norton
(seal)
Mildred D. Norton
Exhibit C
ROBERT E. NORTON
PLAINTIFF
V.
KIDIST K. NORTON
DEFENDANT
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No.: 2007-729 Civil Term
CIVIL ACTION
JURY TRIAL DEMANDED
AFFIDAVIT OF KIDIST K. NORTON
I am Kidist K. Norton, and I make the within Affidavit of Kidist K. Norton based upon
my personal knowledge:
1. I am an adult individual, and I firmly believe in the obligations of an oath.
2. My deceased husband Clifford Norton and I were called back from Germany in
August of 1989 for the specific purpose of receiving the subject property from Clifford's parents
as a gift.
3. The conveyance of the property located at 4130 Wentzville Road, Enola,
Pennsylvania was an unconditional gift from Mildred Norton and Ernest Norton to Clifford and
me.
4. I did not sign the purported agreement of December 25, 2002 regarding the
property located 4130 Wentzville Road, Enola, Pennsylvania, and I challenge its authenticity.
SWORN and subscribed before me this 15 day of T. yn r , 2007, by Kidist
K. Norton an adult individual who provided proper identification.
*NR`V=Pl? IC
My Commission expires on:
COMMONWEALTH OF PENNSYLVANIA
Notarial Seal
Jenrtifer L. Karr, Notary Public
Swatwa Twp., Dauphin County
My Cornmission Dores March 7, 2011
Kidist K. Norton
Member, Pennsylvania Association of Notaries
• •
s n .
Leslie D. Jacobson
Attorney for Defendant
The Law Offices of Leslie David Jacobson
8150 Derry Street, Ste. A
Harrisburg, Pennsylvania 17111-5260
Ph: (717) 909-5858
Fx: (717) 909-7788
ROBERT E. NORTON
PLAINTIFF
V.
KIDIST K. NORTON
DEFENDANT
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No.: 2007-729 Civil Term
CIVIL ACTION
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
AND NOW, this 13 day of June, 2007, I, Chad Julius, Law Clerk at the Law Offices of
Leslie D. Jacobson, and hereby certify that on this day I served the within documents upon the
person indicated below, by depositing a true and correct copy of the same in the United States
Mail, postage prepaid, which service satisfies the requirements of the Pennsylvania Rules of
Civil Procedure:
Mr. Douglas G. Miller
Mr. Matthew A. McKnight
Irwin & McKnight
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, PA 17013-3222
LAW OFFICES OF LESLIE DAVID JACOBSON
B
ius,
10
J
>
!77 1 r
zz
SHERIFF'S RETURN - REGULAR
CASE NO: 2007-00723 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
NORTON ROBERT E
VS
NORTON KIDIST K
MARK CONKLIN
, Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within WRIT OF SUMMONS was served upon
NORTON KIDIST K
DEFENDANT
the
at 0900:00 HOURS, on the 21st day of February-, 2007
at 23 COURT LANE
CARLISLE, PA 17013
KIDIST NORTON
by handing to
a true and attested copy of WRIT OF SUMMONS
together with
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs:
Docketing 18.00
Service 8.80
Postage .39
Surcharge 10.00
.00
3? b ??n '? (?.,,, ? 3 7.19
Sworn and Subscibed to
before me this day
So Answers:
R. Thomas Kline
02/22/2007
MATTHEW MCKNIGHT
By. ., ?/, /"?
eputy Sheriff
of , A. D.
ROBERT E. NORTON, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
-P,3
V. : No. 2007" CIVIL TERM
KIDIST K. NORTON, : CIVIL ACTION
Defendant
NOTICE TO DEFEND
You have been sued in court. If you wish to defend against the claims set forth in the
following pages, you must take action within twenty (20) days after this complaint, order and
notice are served, by entering a written appearance personally or by attorney and by filing in
writing with the court your defenses or objections to the claims set forth against you. You are
warned 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 plaintiff. 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 LEGAL
HELP.
Cumberland County Lawyer Referral Service
32 South Bedford Street
Carlisle, Pennsylvania 17013
(717) 249-3166
Americans with Disabilities
Act of 1990
The Court of Common Pleas of Cumberland County is required by law to comply with the
Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable
accommodations available to disabled individuals having business before the court, please contact our
office. All arrangements must be made at least 72 hours prior to any hearing or business before the court.
You must attend the scheduled conference or hearing.
ROBERT E. NORTON, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
713
V. : No. 2007-729 CIVIL TERM
KIDIST K. NORTON, : CIVIL ACTION
Defendant
AMENDED COMPLAINT
AND NOW COMES the Plaintiff, Robert E. Norton, by and through his attorneys, Irwin
& McKnight, to make the following Amended Complaint and in support thereof avers as
follows:
1. The Plaintiff, Robert E. Norton, is an adult individual who principally resides at
1829 Del Norte Drive SW, Albuquerque, New Mexico 87105.
2. The Defendant, Kidist K. Norton, is an adult individual who principally resides at
23 Court Lane, Carlisle, Cumberland County, Pennsylvania 17013.
3. Plaintiff is the son of Ernest L. Norton and Mildred D. Norton. He is also the
brother of Clifford E. Norton, the Defendant's deceased spouse.
4. Prior to entering a nursing facility, Ernest L. and Mildred D. Norton agreed to gift
their main asset, their principal residence at 4120 Wertzville Road, Enola, (hereinafter referred to
as "Property") to their son, Clifford E. Norton, and his wife, Defendant Kidist K. Norton with the
oral condition that when the property would be sold, half of the net proceeds would be split
equally between Plaintiff and his brother as an inheritance. A true and correct copy of the signed
Deed dated August 10, 1989, is attached hereto and incorporated herein as Exhibit "A".
r
5. Both Ernest L. and Mildred D. Norton later entered the Church of God Home in
Carlisle.
6. Ernest L. Norton died on January 15, 1990.
7. The parties to the transaction agreed to memorialize the agreement regarding the
sharing of proceeds between Plaintiff and his brother upon any future sale of the Property.
8. Upon information and belief, Defendant's spouse, Clifford E. Norton, engaged the
services of an attorney to prepare an argument to be signed by the surviving parties.
9. On December 25, 1992, Mildred D. Norton, Clifford E. Norton and Defendant
signed an agreement stating that upon sale of the Property and after reimbursement for
improvements and taxes, any proceeds in excess of $100,000.00 were to be divided with one half
going to Clifford E. and Defendant and the other half to Plaintiff. A true and correct copy of the
signed agreement is attached hereto and incorporated herein as Exhibit "B".
10. The signatures on Exhibit "B" are all witnessed by Elvira C. Hallman, the sister of
Mildred D. Norton.
11. By its terms, the written agreement was to supersede all prior oral agreements
made between the parties.
12. Upon information and belief, at all times relevant hereto Clifford E. Norton and
Defendant represented to third parties interested in purchasing the property that they needed a
price high enough to justify the agreed upon split of proceeds between the two brothers.
13. Upon information and belief, over the years Clifford E. Norton and Defendant
turned down offers to purchase the Property because they were not deemed high enough to
justify a split of the proceeds between the two brothers.
2
14. Over the years, during the time the Property was owned by Defendant, she has
indicated to Plaintiff that it was her understanding that he was to receive his share of the
proceeds from the sale of the Property.
15. Clifford E. Norton died on March, 4, 2006.
16. On August 1, 2006, Defendant sold the Property for $600,001.00. A true and
correct copy of the Deed is attached hereto and incorporated herein as Exhibit "C".
17. After the sale of the Property, Plaintiff made demand for his share of the proceeds
according to the terms outlined in the agreement dated December 26, 1992, and upon the oral
promises and representation of the parties to the transaction..
18. Defendant has refused to provide Plaintiff with his share of the proceeds, claiming
that she is under no obligation to provide it to him.
COUNTI
BREACH OF CONTRACT
19. The averments of fact alleged in items one (1) through eighteen (18) are made a
part hereof and incorporated herein by reference.
20. In consideration for receiving the Property, Defendant and her husband, Clifford
E. Norton, agreed that upon any sale of the Property they would share the proceeds with
Plaintiff.
21. This agreement was later reduced to writing by Defendant's husband and signed
by the surviving parties.
3
22. Upon information and belief, Defendant and her now deceased husband retained
possession of the original signed agreement.
23. Defendant by her refusal and failure to provide Plaintiff with his share of the
proceeds from the sale of the Property, has breached the contract to which Plaintiff is a third
party beneficiary.
24. As a result of Defendant's breach and refusal to honor the terms of the contract,
Plaintiff has been denied his share of the proceeds from the sale of the Property, which
approximately amount to $238,000.00.
25. Plaintiff Robert E. Norton is entitled to certain damages, including but not limited
to, receiving his full share of the proceeds from the sale of the Property and costs associated with
the litigation.
WHEREFORE, The Plaintiff, Robert E. Norton, respectfully requests that this
Honorable Court enter judgment against Defendant, Kidist K. Norton, in excess of the
Compulsory Arbitration limit of Fifty Thousand and no/100 ($50,000.00) Dollars plus costs,
interest, reasonable attorneys fees, and all other relief this Honorable Court deems fair and just.
COUNT II
UNJUST ENRICHMENT
26. The averments of fact alleged in items one (1) through twenty-five (25) are made
a part hereof and incorporated herein by reference.
4
27. Defendant accepted the transfer of the Property with full knowledge and
agreement that Ernest L. and Mildred D. Norton wanted Plaintiff to receive a share of the
proceeds upon sale of the property.
28. Upon information and belief, Defendant furnished no consideration for the receipt
of the transfer of the real estate.
29. Defendant further acknowledged and agreed that Plaintiff was to receive a share
of the proceeds from the sale of the property by signing the agreement attached hereto as Exhibit
«B„
30. Defendant has not honored the agreement made prior to the transfer of the
Property and by the agreement attached hereto as Exhibit "B", that Plaintiff be provided with a
share of the proceeds from the sale of the Property.
31. It is and continues to be inequitable for Defendant to retain the full proceeds from
the sale of the Property while refusing to provide Plaintiff with his share of the proceeds as she
obligated herself both orally and in writing.
32. Defendant wrongfully secured a substantial benefit from the sale of the real estate
that had been conditionally gifted to her and her husband, and it is unconscionable for her to
retain that benefit thereby effectively excluding Plaintiff from any inheritance.
WHEREFORE, The Plaintiff, Robert E. Norton, respectfully requests that this
Honorable Court enter judgment against Defendant, Kidist K. Norton, in excess of the
Compulsory Arbitration limit of Fifty Thousand and no/100 ($50,000.00) Dollars, plus costs,
interest, reasonable attorneys fees, and all other relief this Honorable Court deems fair and just.
5
COUNT III
BREACH OF CONDITIONAL GIFT
33. The averments of fact alleged in items one (1) through thirty-two (32) are made a
part hereof and incorporated herein by reference.
34. Ernest L. and Mildred D. Norton gifted to Defendant and her husband, Clifford E.
Norton, the Property on the condition that upon any sale of the Property they would share the
proceeds with Plaintiff.
35. This conditional gift of the Property was subsequently memorialized in writing by
the surviving parties after the Property was transferred.
36. In the alternative, the surviving parties to the gift of the Property subsequently
agreed to change the terms of the gift in writing to provide Plaintiff with an inheritance by
providing him with a share of the proceeds from any sale of the Property.
37. By failing to provide Plaintiff with his share of the proceeds from the sale of the
Property, Defendant has breached the terms of the conditional gift, requiring the full return of all
net proceeds from the sale of the Property to the surviving Grantor, Mildred D. Norton.
WHEREFORE, the Plaintiff, Robert E. Norton, respectfully requests that this Honorable
Court enter judgment against Defendant, Kidist K. Norton, requiring her to return all net
proceeds from the sale of the Property to the surviving Grantor, Mildred D. Norton, plus costs,
interest, reasonable attorneys fees, and all other relief this Honorable Court deems fair and just.
6
COUNT IV
WRONGFUL CONVERSION
38. The averments of fact alleged in items one (1) through thirty-seven (37) are made
a part hereof and incorporated herein by reference.
39. Defendant was obligated upon receipt of the net proceeds of the sale of the
Property to a third party to pay over to Plaintiff one half of the net proceeds.
40. In the alternative, by appropriating all of the net proceeds from the sale of the
Property, Defendant has wrongfully converted Plaintiff's inheritance.
41. Upon information and belief, Defendant has wrongfully converted the funds
agreed to be paid to Plaintiff in order to pay Defendant's own financial obligations.
WHEREFORE, The Plaintiff, Robert E. Norton, respectfully requests that this
Honorable Court enter judgment against Defendant, Kidist K. Norton, in excess of the
Compulsory Arbitration limit of Fifty Thousand and no/100 ($50,000.00) Dollars, plus costs,
interest, reasonable attorneys fees, and all other relief this Honorable Court deems fair and just.
COUNT V
CONSTRUCTIVE TRUST
42. The averments of fact alleged in items one (1) through forty-one (41) are made a
part hereof and incorporated herein by reference.
7
43. Defendant accepted the transfer of the Property with full knowledge and
agreement that Ernest L. and Mildred D. Norton wanted Plaintiff to receive a share of the
proceeds upon sale of the property.
44. Defendant and her husband, Clifford E. Norton, obligated themselves both orally
and in writing to provide Plaintiff with his share of the proceeds from the sale of the Property.
45. Upon information and belief, it was always Defendant's stated understanding and
intention to provide Plaintiff with his share of the proceeds from the sale of the Property until
either shortly before or after the sale of the Property.
46. By refusing to provide Plaintiff with his share of the proceeds from the sale of the
Property, as per acknowledgement and agreement, Defendant is in wrongful retention of such
proceeds and should be deemed holding them in constructive trust for the benefit of the Plaintiff.
47. Upon information and belief, Defendant has used a portion of the net proceeds
from the sale of the Property to purchase a new residence.
48. Upon information and belief, Defendant has invested the remaining net proceeds
in as yet undetermined assets in the Defendant's name or under her control.
WHEREFORE, The Plaintiff, Robert E. Norton, respectfully requests that this
Honorable Court enter judgment against Defendant, Kidist K. Norton, in excess of the
Compulsory Arbitration limit of Fifty Thousand and no/100 ($50,000.00) Dollars, plus costs,
interest, reasonable attorneys fees, and all other relief this Honorable Court deems fair and just,
including the imposition of a constructive trust upon Defendant for any real or personal property
acquired by Defendant through the wrongful retention of the funds paid by Plaintiff on account
8
of the purchase price, requiring the Defendant to release and/or reconvey any such property to
Plaintiff.
Respectfully submitted,
IRWIN & McKNIGHT
VY, M A a &A
Dated: July 3, 2007 By:
Douglas G iller, Esquire
Supreme Court I.D. No. 83776
Matthew A. McKnight, Esquire
Supreme Court I.D. No. 93010
60 West Pomfret Street
Carlisle, PA 17013
(717) 249-2353
Attorney for Plaintiff,
Robert E. Norton
9
VERIFICATION
The foregoing document is based upon information which has been gathered by counsel
and myself in the preparation of this action. I have read the statements made in this document
and they are true and correct to the best of my knowledge, information and belief. I understand
that false statements herein made are subject to the penalties of 18 Pa. C.S.A. Section 4904,
relating to unsworn falsification to authorities.
ROBERT E. NO TON
Date: 7/2/07
EXHIBIT "A"
Hr y HA WL, YN•kb M
RICO 0?0-err 1"`""!'!''TflE
'89 AUG 10 Ph 4 Q1
MADE THE /O day of August in the year
of our Lord one thousand nine hundred eighty-nine (1989 )
BETWEEN ERNEST L. NORTON and MILDRED D. NORTON, his wife,
of Hampden Township, Cumberland County, Pennsylvania,
hereinafter called
Grantors
and CLIFFORD E. NORTON and KIDIST K. NORTON, his wife,
of Hampden Township, Cumberland County, Pennsylvania,
hereinafter called
Grantees
WITNESSETH, that in consideration of One and no/100------------------------
- ------------------------------ ($1.00)------------------------- Dollarl
in hand paid, the receipt whereof is hereby acknowledged, the said grantors do hereby grant
and convey to the said graanted their heirs and assigns as tenants by the
entireties
ALL that certain piece or lot of ground with the improvements
thereon situated in Hampden Township, Cumberland County, Pennsylvania,
bounded and described as follows, to wit:
BEGINNING at a pin in the center of the State Highway; thence
along lands now or late of C. Walters, North, 3 degrees West 741.45
feet to a post; thence along land now or late of the said Rossvill
Hoffman, North 88 degrees East 273 feet to a post; thence along a
proposed road and land now or late of the said Rossvill Hoffman,.
South 1 degree West 748 feet to a pin in the center of the said
Highway; thence along the same, South 88 degrees West 225 feet to.
the Place of BEGINNING.
CONTAINING 4 1/4 acres.
;,X C34 fs 458
.' r
HAVING thereon erected a two and one-half (2 1/2) story
frame dwelling.
BEING the same property which Mary E. Hallman and Elvira C.'--
Hallman, granted and conveyed to Ernest L. Norton and Mildred D.
Morton, his wife, Grantors herein, by deed dated December 28,
1984 and recorded in the Office of the Recorder of Deeds for
Cumberland County, Pennsylvania in Deed Book "B", Volume 31,
Page 753•
This is a non-taxable transfer from parents to son and
daughter-in-law.
LOOK C 34 FACE 459
AND the acid grantors hereby covenant and agree that they
will warrant generally the property hereby conveyed.
IN WITNESS WHEREOF, said gra
the day and year first above written.
' SigncD, $calcD anII ?IcfibcrtD
in tb-t Ikvaeme of
_ ................
ntors have hereunto set their hands and sea$
ERNEST L. NORTON
..... _»........ ».............. ..............................».......»....» 2ZAL
.. ..`l./+-.. . .............. 1ltAL
MILDRED D. NORTON
r?
............................................................................... .. saw L
State of PENNSYLVANIA
ss.
County of CUMBERLAND
On this, the l ' day of August , 1989 , before me,
the undersigned officer, personally appeared Ernest L. Norton and
Mildred D. Norton, his wife
known to me (or satisfactorily proven) to be the persons whose names are subscribed to the
within instrument, and acknowledged that they executed same for the purposes therein
contained.
IN WITNESS WHEREOF, 1 hereunto set my Kand csal seal.
++ ?.1 °R .................................... ..........................................
Title of Officer.
NOTARIAL SEAL
• ..?.• l': BM A. MORP1=4. NOTARY PUBLIC
3 •k ?' ' CARL°S= BOAC, CUMBER;h'ID CO'!tVtY
t
MY COMMI;$iON EXPMES DEC. 15, 1942
?i+ ?•: pJ?'"p""' Jam'
Member. Perm yN" Awdation of Notaries
I do hereby certify that the precise residence and complete post office address
of the within named grantees is 9130 Gclt--y tulle `edlm4f
1.00 4 A i / -70ZS"'
August /01989
.. ......
a . nt ..s ..... ...................
...._.
BOOK C34 Acs 460
. Gr . ant s
Attorney for
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EXHIBIT "B"
AGREE MENT
This Agreement is made this day of L '??
1992, between Clifford E. Norton and Kidist K. Norton, of Enola,
Pennsylvania, and Mildred D. Norton, of Carlisle, Pennsylvania, for
and in consideration of the transfer of real estate and the
improvements thereon known as 4130 Wertzville Road, Enola,
Pennsylvania, from Mildred D. and Ernest L. Norton to Clifford and
Kidist K. Norton, recorded at Deed Book C34, page 453, in the
Cumberland County Recorder of Deeds Office.
It is understood and agreed that at such time that Clifford
or Kidist or both sell, convey or transfer the property at 4130
Wertzville Road, Enola, after deducting the cost of any and all
improvements and taxes paid by Clifford and/or Kidist Norton during
the term of their ownership and all customary costs, the net
proceeds of the sale in excess of $100,000.00 shall be distributed
.one-half (1/2) to Robert E. Norton and one-half (1/2) to Clifford
and Kidist Norton. For purposes of calculating the sales price of
the property, any personal property included in the sale shall be
excluded.
It is further understood that if the property at 4130
Wertzville Road, Enola, is sold, conveyed or transferred for a sum
less than $100,000.00 after deducting the cost of any and all
improvements, then all of the proceeds from the transfer shall*
belong solely to Clifford and Kidist Norton or their hears,
rl
successors and assigns, and no moneys shall be distributed to
Robert E. Norton.
It is further agreed that Clifford and Kidist may, in their
absolute discretion, hold the property as long as either shall
survive and choose to occupy the subject property. This agreenent
shall in no event be construed to require the sale of the property
by either Clifford or Kidist Norton or to give Robert E. Norton any
rights to approve or veto a contemplated sale.
In the event that Robert E. Norton predeceases Clifford or
Kidist Norton, then this agreement is null and void and no part
shall be given effect. This agreement shall also become null and
void upon the death of the survivor: of either Clifford or Kidist.
This agreement supersedes and supplants all prior agreements
whether oral or written between the parties.
Witness:
O?IPE Ltrr-'D
(seal)
Cli o .1 E. Norton
(seal)
Kidist K. Norton
(seal)
Mildred D. Norton
EXHIBIT "C"
c??5 PUG 3 Aft 8 09
DEED
This Deed is made the I" day of August, 2046
BETWEEN
KIDIST K. NORTON, widow, of Cumberland County, Pennsylvania, GRANTOR
AND
FISHING CREEK VALLEY ASSOCIATES, L.P., a Pennsylvania Limited
Partnership, of Dauphin County, Pennsylvania, GRANTEE
WITNESSETH
That the Grantor, in consideration of SIX HUNDRED THOUSAND AND ONE
DOLLARS ($600,001.00), paid by the Grantee to the Grantor, the receipt whereof is
hereby acknowledged, does hereby grant and convey to the Grantee:
ALL THAT CERTAIN piece or lot of ground with the improvements thereon
situated in Hampden Township, Cumberland County, Pennsylvania, bounded and
described as follows, to wit:
BEGINNING at a pin in the center of the State Highway; thence along lands now
or late of C. Walters, North 3 degrees West 741.45 feet to a post; thence along land now
or late of the said Rossvill Hoffman, North 88 degrees East 273 feet to a post; thence
along a proposed road and land now or late of the said Rossvill Hoffman, South 1 degree
West 748 feet to a pin in the center of the said Highway; thence along the same, South 88
degrees West 225 feet to the Place of BEGINNING.
CONTAINING 4 % acres.
HAVING thereon erected a two and one-half (2 %2) story frame dwelling.
I BOOK 275 PAGi5000
BEING THE SAME PREMISES which Ernest L. Norton and Mildred D.
Norton, his wife, granted and conveyed to Clifford E. Norton and Kidist K. Norton, his
wife, Grantor herein, by deed dated August 10, 1989 and recorded in the Office of the
Recorder of Deeds for Cumberland County, Pennsylvania in Deed Book C, Volume 34,
Page 458. Clifford E. Norton died on March 4, 2006, whereupon title vested in Kidist K.
Norton, Grantor herein.
SUBJECT TO ALL covenants, restrictions, reservations, easements, conditions
and rights appearing of record; and SUBJECT to any state of facts an accurate survey
would show.
TOGETHER will all and singular the buildings, improvements, streets, alleys,
passages, ways, water courses, rights, liberties, privileges, hereditaments and
appurtenances whatsoever thereunto belonging, or in any wise appertaining, and the
reversions and remainders, rents, issues and profits thereof; and all the estate, right, title,
interest, property, claim and demand whatsoever of the Grantor, in law, equity, or
otherwise howsoever of, in and to the same and every part thereof.
TO HAVE AND TO HOLD the said lot or piece of ground above described.
hereditaments and premises hereby granted or mentioned and intended so to be, with the
appurtenances unto the Grantee, to and for the only property use and behalf of the
Grantee, forever.
AND the Grantor does by the presents covenant, grant and agree to and with the
Grantee, that they, the Grantor, shall and will warrant and forever defend, all and singular
the hereditaments and premises hereinabove described and granted, or mentioned and
intended so to be, with the appurtenances, unto the Grantee, against them, the Grantor,
and against all and every person or persons whomsoever lawfully claiming or to claim the
same or any part thereof, by from or under the Grantor, and Grantee shall mean the
Grantee and the heirs and assigns of the Grantee.
IN WITNESS WHEREOF, the Grantor and hereunto set her hand and seal, the day and
year first written above.
ATTEST:
Witnes Kidist K. Norton
666 275 wF5001
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND : SS
On this, the 1S+ day of 4()Sf , 2006, before me, a Notary Public,
the undersigned officer, pe6onally appeared MIST K. NORTON who
acimowledged herself to be the person whose seal is attached hereto, and having
executed the foregoing instrument for the purpose therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
%,d Wd'?? -
Notary Public
COMMONWEALTH OF PENNSYLVANIA
NOTARIAL SEAL
LORI A. RICHARD, Notary Public
Lemoyne Boro., Cumberland County
* Commission Expires Nov. 12, 2006
Member, Penns kwft Assodadon of Notarfa
CERTIFICATION OF ADDRESS
I, hereby certify that the precise address of the Grantee herein is as follows:
7100 Fishing Creek Valley Road
Harrisburg, PA 17112
Attey or Agent for Grantee
14
w.p. ° LEM; ? N
r• p+ w yr
-, a C" 1 Certify th is to he recorded
_2 " roifi C`umherland
m 4 County PA
r. _m r•
Aft
C.4 01 °. R.=corder of Deeds
fd i w'" °o ??1 9001( 275r PaCE$?
N fQ+•O Q° 61 °s°o0 cn
O+
ROBERT E. NORTON, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
V. : No. 2007-729 CIVIL TERM
KIDIST K. NORTON, : CIVIL ACTION
Defendant
CERTIFICATE OF SERVICE
I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy of the
foregoing document upon the persons indicated below by first class United States mail, postage paid in
Carlisle, Pennsylvania 17013, on the date set forth below:
LESLIE D. JACOBSON, ESQUIRE
8150 DERRY STREET, SUITE A
HARRISBURG, PA 17111-5260
Date: July 3, 2007
IRWIN & McKNIGHT
Douglas Miller, Esquire
Supreme Court I.D. No. 83776
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, Pennsylvania 17013-3222
(717) 249-2353
? C.J a t,.rj
i
Leslie D. Jacobson
Attorney for Defendant
The Law Offices of Leslie David Jacobson
8150 Derry Street, Ste. A
Harrisburg, Pennsylvania 17111-5260
Ph: (717) 909-5858
Fx: (717) 909-7788
ROBERT E. NORTON
PLAINTIFF
V.
KIDIST K. NORTON
DEFENDANT
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No.: 2007-729 Civil Term
CIVIL ACTION
JURY TRIAL DEMANDED
NOTICE TO PLEAD
TO: Robert E. Norton, Plaintiff,
c/o Mr. Douglas G. Miller
Mr. Matthew A. McKnight
Irwin & McKnight
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, PA 17013-3222
YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE
ENCLOSED PRELIMINARY OBJECTIONS WITHIN TWENTY (20) DAYS FROM
SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU.
submitted,
THE LAW OFFI S OF LESLI VID JAC BSON
r
Dated: July 19, 2007 AA
Leslie D. Jacobson
ID# 52673
8150 Derry Street
Harrisburg, PA 17111
717.909.5858
FAX: 717.909.7788
Attorney for Defendant
1
I
Leslie D. Jacobson
Attorney for Defendant
The Law Offices of Leslie David Jacobson
8150 Derry Street, Ste. A
Harrisburg, Pennsylvania 17111-5260
Ph: (717) 909-5858
Fx: (717) 909-7788
ROBERT E. NORTON
PLAINTIFF
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
KIDIST K. NORTON
DEFENDANT
No.: 2007-729 Civil Term
CIVIL ACTION
JURY TRIAL DEMANDED
DEFENDANT KIDIST K. NORTON'S PRELIMINARY OBJECTIONS TO
PLAINTIFF ROBERT E. NORTON'S AMENDED COMPLAINT
AND NOW COMES Defendant Kidist K. Norton ("Defendant"), by and through her
attorneys the Law Offices of Leslie David Jacobson, and hereby submit the following
Preliminary Objections to the Amended Complaint of Plaintiff Robert Norton ("Plaintiff'), and
in support thereof state as follows:
1. Plaintiff commenced this action with the filing of a Praecipe for Issuance of a
Writ of Summons that was issued against Defendant on February 6, 2007.
2. Defendant subsequently filed Praecipe for Rule to File a Complaint that was
issued against Plaintiff on April 6, 2007.
3. Plaintiff filed his Complaint on or about April 30, 2007.
4. Defendant filed Preliminary Objections to Plaintiff's Complaint on or about June
14, 2007.
5. Plaintiff subsequently, on or about July 3, 2007, filed an Amended Complaint.
6. Plaintiff avers in his Amended Complaint that prior to entering a nursing facility,
Ernest L. and Mildred D. Norton agreed to give their residence located at 4120 Wertzville Road,
Enola ("Property") to their son Clifford and his wife, Defendant "with the oral condition that
2
Leslie D. Jacobson
Attorney for Defendant
The Law Offices of Leslie David Jacobson
8150 Derry Street, Ste. A
Harrisburg, Pennsylvania 17111-5260
Ph: (717) 909-5858
Fx: (717) 909-7788
ROBERT E. NORTON
PLAINTIFF
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
KIDIST K. NORTON
DEFENDANT
No.: 2007-729 Civil Term
CIVIL ACTION
JURY TRIAL DEMANDED
DEFENDANT KIDIST K. NORTON'S PRELIMINARY OBJECTIONS TO
PLAINTIFF ROBERT E. NORTON'S AMENDED COMPLAINT
AND NOW COMES Defendant Kidist K. Norton ("Defendant"), by and through her
attorneys the Law Offices of Leslie David Jacobson, and hereby submit the following
Preliminary Objections to the Amended Complaint of Plaintiff Robert Norton ("Plaintiff'), and
in support thereof state as follows:
1. Plaintiff commenced this action with the filing of a Praecipe for Issuance of a
Writ of Summons that was issued against Defendant on February 6, 2007.
2. Defendant subsequently filed Praecipe for Rule to File a Complaint that was
issued against Plaintiff on April 6, 2007.
3. Plaintiff filed his Complaint on or about April 30, 2007.
4. Defendant filed Preliminary Objections to Plaintiffs Complaint on or about June
14, 2007.
5. Plaintiff subsequently, on or about July 3, 2007, filed an Amended Complaint.
6. Plaintiff avers in his Amended Complaint that prior to entering a nursing facility,
Ernest L. and Mildred D. Norton agreed to give their residence located at 4120 Wertzville Road,
Enola ("Property") to their son Clifford and his wife, Defendant "with the oral condition that
2
when the property would be sold, half of the net proceeds would be split equally between
Plaintiff and his bother as inheritance". See Plaintiff s Amended Complaint, ¶4.
7. Plaintiff further pleads in his Amended Complaint that Defendant furnished no
consideration for the receipt of the transfer of real estate. See Plaintiff s Amended Complaint,
¶28.
8. However, the August 10, 1989 Deed, which speaks for itself, purports
consideration by the Defendant the receipt of which is acknowledged by the Grantors. A true
and correct copy of the recorded August 10, 1989 Deed transferring the property to Clifford
Norton (now deceased) and Defendant is attached and incorporated by reference as though fully
set forth as exhibit "A".
9. Plaintiff further avers that Defendant, Mildred D. Norton, and Clifford E. Norton
"signed an agreement stating that upon the sale of the Property and after reimbursement for
improvements and taxes, any proceeds in excess of $100,000.00 were to be divided with one half
going to Clifford E. Norton and Defendant and the other half to Plaintiff." See Plaintiff s
Amended Complaint, ¶9.
10. Plaintiff also avers that the signatures on the purported agreement were witnessed
by Elvira C. Hallman, Mildred Norton's sister. See Plaintiffs Amended Complaint, ¶10.
11. Plaintiff also avers that the purported agreement was to supersede all prior oral
agreements made between the parties. See Plaintiff s Amended Complaint, ¶11.
12. Elvira C. Hallman is deceased and cannot testify on behalf of the Plaintiff. See
Deposition of Mildred Norton, P. 14 ¶9-18.
13. On or about April 13, 2007, Plaintiff served on Defendant a notice that he
intended to take the deposition of Mildred R. Norton on May 2, 2007.
3
14. On May 2, 2007, Plaintiff conducted the deposition of Mildred Norton wherein
she gave testimony. A true and correct copy of the Deposition of Mildred D. Norton is
incorporated by reference and is more fully set forth as exhibit "B".
15. During the Deposition, Counsel for the Defendant asked Plaintiff to produce an
original copy of the purported December 25, 1992 agreement between the parties.
16. Counsel for Plaintiff stated that an original of the purported agreement could not
be produced and that Plaintiff could only produce a copy of said agreement. See Deposition of
Mildred Norton, P. 19 ¶8-13.
17. Plaintiff further pleads in his Amended Complaint that Defendant and her now
deceased husband retained possession of the original signed agreement. See Plaintiff s Amended
Complaint, ¶22.
18. Defendant is not in possession of the original signed purported Agreement nor did
she sign the purported agreement. See Affidavit of Kidist K. Norton attached and incorporated
by reference as exhibit "C".
19. Mildred Norton testified that she does not remember signing any other agreement
regarding the transfer of the property other than the August 10, 1989 deed transferring the
Property to Clifford Norton and Defendant. See Deposition of Mildred Norton, P. 12 ¶21-25 - P.
13 ¶1-9.
20. Mildred Norton further testified that she does not remember seeing or signing the
purported December 25, 1992 agreement, stating on the record that "Oh, I don't remember that
except lately somebody, I think, showed it to me. See Deposition of Mildred Norton, P. 13 ¶7-9.
21. Mildred Norton also testified that it was her and her late husband's intent to give
the property to her son Clifford and recalled him from Germany while he was on active duty in
4
the military so she and her husband could give him and Defendant the property. See Deposition
of Mildred Norton, P. 15 ¶18-25 and P. 16 ¶1-4.
PRELIMINARY OBJECTIONS PURSUANT TO PA R C P 1028(a)(4) - DEMURRER
TO COUNT I OF PLAINTIFF'S AMENDED COMPLAINT FOR BREACH OF CONTRACT
22. Defendant incorporates paragraphs 1 through 21 above as though set forth at
length.
23. Pa.R.C. P. 1028(a)(4) permits a party to file Preliminary Objections because of
the legal insufficiency of a pleading. When considering Preliminary Objections to a Complaint
in the nature of a demurrer, the court's review is limited to the content of the pleading. In Re
Adoption of S.P.T., 783 A.2d 779, 782 (Pa. Super. Ct. 2001).
24. A demurrer should be sustained when the law is free from doubt that, based on the
pleaded facts, no recovery is possible. Willet v Pa Med. Catastrophe Loss Fund, 702 A.2d 850
(1997), and no amendment of the complaint could cure the defects. Hohensee y. Shape, 395
A.2d 636 (Pa. Commw. Ct. 1978).
25. Pursuant to Pa.R.E 1003, Defendant objects the use of the copy of the purported
December 25, 1992 agreement attached in support of Plaintiff s Amended Complaint.
26. Pa.R.E. 1003 provides that "A duplicate is admissible to the same extent as an
original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the
circumstances it would be unfair to admit the duplicate in lieu of the original. Pa.R.E. 1003.
27. Defendant has never had the purported agreement in her possession. See
Affidavit of Kidist K. Norton attached and incorporated by reference as exhibit "C".
28. Defendant did not sign the purported agreement. See Affidavit of Kidist K.
Norton attached and incorporated by reference as exhibit "C".
29. Moreover, the testimony of Mildred Norton does not support Plaintiff's case
against Defendant. Mildred Norton does not remember signing nor seeing the agreement up
5
until someone recently showed it to her. See Deposition of Mildred Norton, P. 13 ¶7-9.
30. Nor can Elvira C. Hallman, who is deceased, testify on behalf of the Plaintiff.
See Deposition of Mildred Norton, P. 14 ¶9-18.
31. Alternatively, because Defendant raises a genuine issue as to the authenticity of
the purported agreement, the duplicate is not admissible as evidence to support Plaintiff's case
and therefore Plaintiff cannot prevail on Count I of his Amended Complaint.
32. Because Plaintiff's whole case relies on a document for which an original cannot
be produced, it would be unfair to admit the duplicate in lieu of the original.
33. Even if the Court holds that the agreement is admissible as evidence, the
agreement is invalid because it lacks consideration.
34. The agreement states that "[I]n consideration of the transfer of real estate and the
improvements thereon known as 4130 Wentzville Road, Enola, Pennsylvania, from Mildred D.
and Ernest L. Norton to Clifford and Kidist K. Norton, recorded at Deed Book C34, page 458, in
the Cumberland County Recorder of Deeds Office."
35. The agreement on its face recites that the consideration supporting the agreement
is a transfer of property which occurred three years earlier than the date of the purported
agreement.
36. The plain language of the agreement, which speaks for itself, purports past
consideration and past consideration is insufficient to support a contract in Pennsylvania.
Community Sports, Inc. v. Denver Ringsby Rockets Inc., 240 A.2d 832 (Pa. 1968). See also
Erny v. Sauer, 237 Pa. 330 (1912).
37. Therefore, Plaintiff, as a matter of law has failed to set forth a legally cognizable
claim for breach of contract against Defendant because the document is inadmissible as the
original cannot be produced or because the purported December 25, 1992 agreement between the
parties is invalid.
6
WHEREFORE, Defendant Kidist K. Norton, respectfully requests that this Honorable
Court sustain her Preliminary Objection and dismiss Count I of Plaintiff s Amended Complaint
in its entirety, with prejudice, and for any other relief deemed just and appropriate.
PRELIMINARY OBJECTIONS PURSUANT TO PA.R.C.P. 1028(a)(4) - DEMURRER
TO COUNT II OF PLAINTIFF'S AMENDED COMPLAINT FOR UNJUST ENRICHMENT
38. Defendant incorporates paragraphs 1 through 37 above as though set forth at
length.
39. Plaintiff also relies on the purported December 25, 1992 agreement to plead a
cause of action for Unjust Enrichment against Defendant.
40. Even if the agreement is held to be admissible as evidence and further as a valid
and enforceable contract, the Plaintiff has failed to state a cause of action against Defendant for
unjust enrichment.
41. In Pennsylvania, it is well settled that "the elements of unjust enrichment are
benefits conferred in defendant by plaintiff, appreciation of such benefits by defendant and
acceptance and retention of such benefits under such circumstances that it would be inequitable
for defendant to retain the benefit without payment of value." Styler v. Hugo, 619 A.2d 347 (Pa.
Super. Ct. 1993).
42. In Count II of Plaintiff's Amended Complaint, Plaintiff has not averred that he
has conferred any benefit on Defendant that would entitle him to relief under an unjust
enrichment theory.
43. Count II does not plead the requisite elements required to sustain a cause of action
for Unjust Enrichment.
WHEREFORE, Defendant Kidist K. Norton, respectfully requests that this Honorable
Court sustain her Preliminary Objection and dismiss Counts II Plaintiff's Amended Complaint in
its entirety, with prejudice, and for any other relief deemed just and appropriate.
7
PRELIMINARY OBJECTIONS PURSUANT TO PA.R.C.P. 1028(a)(4) - DEMURRER
TO COUNT III OF PLAINTIFF'S AMENEDED COMPLAINT FOR BREACH OF
CONDITIONAL GIFT
44. Defendant incorporates paragraphs 1 through 43 above as though set forth at
length.
45. Plaintiff relies on the Deed dated August 10, 1989 and on the purported December
25, 1992 agreement between the parties to support a cause of action for Breach of Conditional
Gift against Defendant.
46. The Deed itself nor Mildred Norton's testimony support Plaintiff s claim that the
gift to Clifford Norton and Defendant was anything less than a gift of fee simple ownership.
47. The Deed, which speaks for itself, is clear on its face that no right was reserved in
favor of Plaintiff that would entitle him to any proceeds from the sale of the Property.
48. Moreover, Mildred Norton testified that at the time of the transfer, it was her and
her husband's intent to giver her son Clifford the property, because he was the oldest son. See
Deposition of Mildred Norton, P. 15 ¶18-25 and P. 16 $1-4.
49. Even if the Court would construe Mildred Norton's testimony as supporting a
cause of action for breach of a conditional gift, her testimony is barred by the Parol Evidence
rule because her testimony directly contradicts the clear and unambiguous language of the
August 10, 1989 Deed.
WHEREFORE, Defendant Kidist K. Norton, respectfully requests that this Honorable
Court sustain her Preliminary Objection and dismiss Counts III of Plaintiff s Amended
Complaint in its entirety, with prejudice, and for any other relief deemed just and appropriate.
PRELIMINARY OBJECTIONS PURSUANT TO PA.R.C.P. 1028(a)(4) - DEMURRER
TO COUNT IV (WRONGFUL CONVERSION) AND COUNT V (CONSTRUCTIVE TRUST)
OF PLAINTIFF'S AMENDED COMPLAINT
50. Defendant incorporates paragraphs 1 through 49 above as though set forth at
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length.
51. Count IV and Count V of Plaintiff s Amended Complaint are derivative claims to
Counts I, II, and III of Plaintiff s Amended Complaint and would only provide potential
remedies to Plaintiff in the event he is successful in proving Counts I, II, or III.
52. Even if Plaintiff has stated causes of action in Counts IV and V against
Defendant, relief cannot be granted unless Plaintiff can succeed under Counts I, II, or III, which
as discussed above, Plaintiff cannot as a matter of law.
53. Plaintiff, as a matter of law, cannot show that he was in any way entitled to the
property or had any legal interest in the property after it was transferred to Defendant.
54. In Count IV, therefore, Plaintiff has failed to state a cause of action against
Defendant in that she was obligated to pay Plaintiff any monies received from the sale of the
Property, or that Defendant wrongfully converted the Plaintiff s inheritance.
55. In Count V, therefore, Plaintiff has failed to state a cause of action against
Defendant for Constructive Trust.
WHEREFORE, Defendant Kidist K. Norton, respectfully requests that this Honorable
Court sustain her Preliminary Objections and dismiss Counts IV and V of Plaintiffs Amended
Complaint in their entirety, with prejudice, and for any other relief deemed just and appropriate.
Respectfully submitted,
THE LAW OF ES OF LESLIE DAVID JACOBSON
l
Dated: July 19, 2007
Leslie D. Jacobso
ID# 52673
8150 Derry Stree
Harrisburg, PA 17111
717.909.5858
FAX: 717.909.7788
9
Exhibit A
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.wy ?. wa,. •'iMrr M ? a
RICO DcD- rr.+•- ?? ?
CUN E. ALAN: C:U.'il'f-PA.
'89 AUG 10 PH 4 Q!
MADE THE day of August
of our Lord one thousand nine hundred eighty-nine (1989)
BETWEEN ERNEST L. NORTON and MILDRED D. NORTON, his wife,
of Hampden Township, Cumberland County, Pennsylvania,
hereinafter called
and CLIFFORD E. NORTON and KIDIST K. NORTON, his wife,
of Hampden Township, Cumberland County, Pennsylvania,
hereinafter called
in the year
Grantors ,
Grantees :
WITNESSETH, that in consideration of One and no/100 ------------------------
------------------------------ ($1.00) ------------------------ Dollart,
in hand paid, the receipt whereof is hereby acknowledged, the said grantors do hereby grant
and convey to the said grantees their heirs and assigns as tenants by the
entireties
ALL that certain piece or lot of ground with the improvements
thereon situated in Hampden Township, Cumberland County, Pennsylvania,
bounded and described as follows, to wit:
BEGINNING at a pin in the center of the State Highway; thence
along lands now or late of C. Walters, North, 3 degrees West 741.45
feet to a post; thence along land now or late of the said Rossvill
Hoffman, North 88 degrees East 273 feet to a post; thence along a
proposed road and land now or late of the said Rossvill Hoffman,.
South 1 degree West 748 feet to a pin in the center of the said
Highway; thence along the same, South 88 degrees West 225 feet to,
the Place of BEGINNING.
CONTAINING 4 1/4 acres.
+1rs 45
??,? C3,4
"'?^? HAVI;JG thereon erected a two and one-half ( 2 1/2) stogy
frame dwelling.
BEING the same property which Mary E. Hallman and Elvira C
Hallman, granted and conveyed to Ernest L. :Dorton and Mildred D
Norton, his wife, Grantors herein, by deed dated December 28,
1984 and recorded in the Office of the Recorder of Deeds for
Cumberland County, Pennsylvania in Deed Book "B", Volume 31,
Page 753•
This is a non-taxable transfer from parents to son and
daughter-in-law.
t
' •4
nox C 34 !AGE 459
....
AND the acid grantors hereby covenant and agree that they
wiU warrant generally the property hereby conveyed
IN WITNESS WHEREOF, said grantors have hereunto set their hands and sea$
the day and year first above written.
' Siantb, Stafeb anb 3Defibereb .... ..9:.......... ._............ _ s=.L
in the Vrritntt of ERNEST L. NORTON
...... .......... _ .............................................................. a=AL
MILDRED D. NORTON
_........................................ _........... __.._ ...... .......................................................... ................. Baas
State of PENNSYLVANIA
as.
County of CUMBERLAND
On this, the l? day of August 19 , be/ore me,
the undersigned officer, personally appeared Ernest L. Norton and
Mildred D. Norton, his wife
known to me (or satisfactorily proven) to be the persons whose names are subscribed to the
within instrument, and acknowledged that they executed same for the purposes therein
contained.
IN WITNESS WHEREOF, I hereunto set my Aand a Ld o cial seal.
i ?1? '. ,' • ?tir?11 ...................................... .-...... ......
Title of Officer.
NOTAMAL SEAL
.+F? C • `t+c -
? ?• ? - .' • BETZI A. MOFR;SC.•1, NOTARY PUeLIC
* ,?i '• A' ' CARL::: BORO, CUlASERCA'ID CVrrtY
y?,?? • '' •• ?+? . ?. , MYCOMMIZON EXPIRES DEC. 15. 194Y
F? C y i?•y? Member. PeamsyMnia Assodation of Notaries
i
I do hereby certify that the precise residence and complete post office address
of the within named grantees is 9/3o GtJt'.r't v?lle 4DaoI
??7?.. ?nJo C. ? ??¢ / 7GZSr ' .
August /V "1989.
eoox C34 : Acs 460 ............................. ...
Gran
-t. s
Attorney for..........
Exhibit B
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ROBERT E. NORTON,
Plaintiff,
Vs.
KIDIST K. NORTON,
Defendant.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No. 2007 - 723 CIVIL TERM
CIVIL ACTION
JURY TRIAL DEMANDED
DEPOSITION OF: MILDRED D. NORTON
TAKEN BY: Plaintiff
BEFORE: Amy R. Fritz, R.P.R.
Notary Public
DATE: May 2, 2007, 2:30 p.m.
PLACE: Church of God Home
801 North Hanover Street
Carlisle, Pennsylvania
APPEARANCES:
IRWIN & McKNIGHT
BY: DOUGLAS G. MILLER, ESQUIRE
and
MATTHEW A. MCKNIGHT, ESQUIRE
FOR - PLAINTIFF
LAW OFFICES OF LESLIE DAVID JACOBSON
BY: LESLIE D. JACOBSON, ESQUIRE
FOR - DEFENDANT
Reporting Services
57 . 71 7-258 3 657 • 717-258-0383 fax
courtreporters4u Gaot com
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INDEX TO TESTIMONY
DEPONENT EXAMINATION PAGE
Mildred D. Norton By Mr. Miller 3
By Mr. Jacobson 17
INDEX TO EXHIBITS
NO. DESCRIPTION PAGE
1 Deed 8
2 Agreement 12
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STIPULATION
It is hereby stipulated by and between the
respective parties that signing, sealing, certification and
filing are waived; and that all objections except as to the
form of the question are reserved until the time of trial.
MILDRED D. NORTON, called as a witness, being
duly sworn, was examined and testified as follows:
EXAMINATION
BY MR. MILLER:
Q. Mildred, can you state your full name?
A. Mildred Dorothy Hallman Norton.
Q. And how do you spell your last name?
A. Norton?
Q. Yes.
A. N-o-r-t-o-n.
Q. And do you know what your date of birth is?
A. August 12, 1912.
Q. And where do you currently reside?
A. Huh?
Q. Where do you reside?,
A. This home here.
Q. And do you know what this home is called?
A. Church of God.
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Q. Do you know how long you've lived here?
A. Oh, dear. 20 some years, I guess.
Q. Do you remember where you lived before the home?
A. Before this home?
Q. Yes.
A. Yeah. The white home in the trailer home out
in -- I can't think of the name of the road. You'll have
to bear with me; I'm --
Q. That's okay. 4120 Wertzville Road, is that
where you lived?
A. Yeah, uh-huh.
Q. And how long did you live there?
A. I don't know. I don't know if Bob remembers or
not.
Q. Well, you lived at the Wertzville Road home
before you moved here. Is that correct?
A. Uh-huh.
Q. 20 some years ago? Is that a yes?
A. Yes.
Q. Make sure you say yes or no so that we can make
sure we get an accurate answer. Okay? And I should tell
you, too, if there's any question that you don't understand
and you need us to repeat something, just let us know and
we'll repeat the question. Okay? And if you need to take
a break, we can take a break at any time also.
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A. If I think of what?
Q. If we need to take a break.
A. Oh.
Q. If you need to get a drink, go to the bathroom
or something, we can do that. Okay? Do you understand?
A. Okay.
Q. Who lived at 4120 Wertzville Road with you?
A. 21 -- see, I don't remember.
ROBERT NORTON: It's the trailer.
MR. MILLER: You can't say anything.
THE DEPONENT: 2140, I believe, and 2130 was the
other one.
BY MR. MILLER.:
Q. Well, what was on the property? Was there more
than one building?
A. Yeah. There was a white building, and then we
put a trailer in it in on the land so that I could look
after my sister.
Q. And when you say we put a trailer in, who is we?
A. My husband and I.
Q. You and your husband? And your husband's name
is Earnest. Is that correct?
A. Earnest.
Q. Did both of you live at the property at
Wertzville Road?
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A. Um-hum.
Q. Did you live in --
A. We lived in the house, and mostly we lived in
the trailer.
MR. JACOBSON: I don't want to object to every
question that's leading, so I'm going to let you go, and
you're going to let me go. Fair enough?
MR. MILLER: Yes.
MR. JACOBSON: Because I'm sure a judge would
permit some leading.
MR. MILLER: Yes, and I will try to keep that to
a minimum.
MR. JACOBSON: Okay.
BY MR. MILLER:
Q. Did anyone live in the trailer with you and your
husband?
A. Me and my husband. Well, not at first, but
Kidist and my son, Clifford, lived with -- no. We weren't
all in the trailer at the same time. Now, see, blank. I
can't help you.
Q. Well, did Kidist and Clifford live in the
trailer at some point?
A. Oh, yeah.
Q. Do you remember when that was?
A. Well, just before he died.
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Q. Just before who died?
A. Clifford died.
Q. So your son, Clifford, also died. Is that
correct?
A. Yeah.
Q. Do you remember when he died?
A. Clifford -- no, I don't remember when, but I
know it was awful darn quick. It was within a minute.
Said he had a headache, and he just went in the kitchen to
get medicine, and she heard a bump and -- this is the way I
hear the story, as I wasn't there for it. She went back in
there and he was dead. Shock to her and everybody else.
Q. Was your son, Clifford, living at the property
when he died?
A. Uh-huh.
Q. And your daughter-in-law, Kidist, was also
living there?
A. Um-hum.
Q. Is that a yes?
A. Huh?
Q. You need to say yes or no.
A. Oh. Yes.
Q. Now, do you remember transferring the real
estate to your son and his wife?
A. All I can sort of remember is my husband and I
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planning that Clifford and Bob are the two, the only two
kids we had -- I forgot what I was going to give you. I
knew I wouldn't be any good at this.
Q. That's okay. We'll back up. So in addition to
Clifford, you also have another son. Is that correct?
A. Robert.
Q. Robert's your other son?
A. Um-hum.
Q. Is that a yes or no?
A. Yes.
Q. Do you remember transferring the property at
Wertzville Road to your son, Clifford?
A. Well, I did it; I must have done it.
Q. Do you remember when that happened?
A. Uh-uh. No.
Q. Do you remember, was it before you moved into
the nursing home here?
A. What?
Q. Did you transfer the property before you moved
into the nursing home?
A. I guess I'll have to say no. I don't...
Q. No, or you're not sure?
A. I'm not -- well, I'm not sure.
(Plaintiff's Exhibit No. 1 was marked.)
BY MR. MILLER:
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Q. We're showing you what we've now marked as
Plaintiff's Exhibit Number 1. Do you recognize this
document?
A. Between Earnest and Mildred.
Q. Is that your name listed at the top?
MR. JACOBSON: You asked her if she recognized
the document. Let's see if she can answer that question.
THE DEPONENT: Yeah. That's my -- if that's the
one you mean, that's me. Is that the one you're talking
about?
BY MR. MILLER:
Q. Do you recognize this document?
A. I wouldn't say, no.
Q. Let's try it this way: Let's turn to the last
page of the document. Is that your signature near the top?
A. Earnest L. and Mildred D. That's mine, yeah.
Q. Is that your signature there above where your
name is printed?
A. You mean this?
Q. At the top of the document above where your name
is printed, is that your signature?
A. This one?
Q. Yes.
A. Yeah, that's mine.
Q. Do you remember signing this document?
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A. No. It's my signature, though. But, no, I
don't remember. But it's like I've been telling everybody,
I forget anything right away.
Q. What's the date that's indicated at the top of
the document?
A. What's the date?
Q. The first page.
A. Come again.
Q. Let's flip back to -- so that's your signature
on the last page, right?
A. Yeah, that's my signature.
Q. What's the date on the top of the first page?
A. August 10, 189.
Q. And what's the title of the document?
A. This? The title of what?
Q. What's the title of this exhibit?
A. I don't get it. I don't know what you're
asking.
MR. MILLER,: Well, you'll let me lead her a
little bit?
MR. JACOBSON: The document speaks for itself.
You asked her if she remembered it. She said no. I mean,
that's as far as you can go.
MR. MILLER: Well, she's verified her signature.
MR. JACOBSON: It's notarized. I don't have any
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problem with the document speaking for itself.
BY MR. MILLER:
Q. Do you remember in 1989 transferring the
property at Wertzville Road to your son and
daughter-in-law?
MR. JACOBSON: She already said no.
THE DEPONENT: I don't remember, but I must have
done it.
BY MR. MILLER:
Q. Do you remember any conversations with your son,
Clifford, about transferring the property to him?
A. No, sir.
Q. Do you remember any conversations that you had
with your daughter-in-law, Kidist, about transferring the
property?
A. I don't remember anything with Kidist and the
property. What I don't understand is how in the world they
got away with Bob's money just like that. And she was no
more entitled to that than the man on the moon.
Q. When you say Bob's money, what are you referring
to?
A. The money was supposed to go to Bob and
Clifford, the two, my two sons. They were supposed to get
the property. They're the only two I remember.
Q. Was that always your understanding that the two
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boys were supposed to get the property?
A. Um-hum. And Clifford, after Clifford's -- well,
the money they owed, after that was paid, half of the money
was supposed to go to Clifford and the other half, to my
way of thinking, was supposed to go to Bob. And as it
turns out, Kidist has it all. I don't know how she did it.
Q. Was Clifford or Kidist supposed to keep the
property for themselves?
A. Well, when he died, she couldn't really to know
what was what. No, I don't think they thought of anything
other than themselves.
Q. Well, I'm asking what your understanding was.
Was the property --
A. My understanding was the property was supposed
to be in two pieces; one was Bob and one was Clifford.
When Clifford died, that left Bob. But Bob should still
have had his half of, you know -- Clifford was half and Bob
was half. But as it turns out, Bob didn't get a cent.
Kidist got it all. And how in the world she and her lawyer
did that, I don't know. I just don't know.
Q. Do you remember signing any other documents?
A. Do I remember what?
Q. Do you remember signing any other documents with
regard to the property?
A. I don't remember.
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(Plaintiff's Exhibit No. 2 was marked.)
THE DEPONENT: I can't say I do when I don't.
BY MR. MILLER:
Q. I'm going to show you what we've now marked as
Plaintiff's Exhibit Number 2. Do you see this paper in
front of you?
A. Oh, I don't remember that except lately
somebody, I think, showed it to me. But since my eyes are
so bad and I can't read, I'm at a loss.
Now, this is my sister's signature. But just
because that's so doesn't say it actually is, if you know
what I mean.
Q. Well, let me lead you through it here. I'm
going to turn to the second page of this document that
we've marked as Plaintiff's Exhibit Number 1. Do you see
where your name is typed at the bottom of the page?
A. Yeah.
Q. Is that your signature above that typed name?
A. Clifford, Kidist and Mildred is what it says,
and that's my writing.
Q. Okay. Do you recognize your son's signature?
A. Yeah.
Q. Is that his signature on the document?
A. Yeah, that's it.
Q. And do you recognize Kidist's signature?
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A. Well, in a way. Isn't very often I see it, but
I couldn't swear but --
Q. That could be her signature?
A. Yeah. As long as these are ours, I imagine
that's hers.
0. And whose name is written to the left under the
witness line?
A. What about it?
Q. Whose name is written to the left on the bottom
of the second page?
A. It's my sister. She was two years older than I
am.
Q. And what's that sister's name?
A. Elvira Hallman.
Q. She is also deceased. Is that correct?
A. Um-hum.
Q. Do you remember when she died?
A. At least three years ago.
Q. Do you remember signing any papers in front of
your sister?
A. Uh-uh.
Q. Do you know when you might have signed this
document or where you might have signed the document?
A. I'm not guessing when I don't know it. I
believe in truth. If you can't tell that, then there's
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something wrong.
Q. What was your son, Clifford's, job? Where did
he work?
A. Well, he was in the Air Force.
Q. Was he stationed in the United States?
A. Well, he was stationed all around.
Q. Do you remember where he was stationed last?
A. Germany? Was Germany -- that's where he met
Kidist.
Didn't he meet you --
Q. Well, you can't ask her a question right now.
A. Sorry.
Q. Germany, is that what you think?
A. Yeah, I think it was Germany. They came from
Germany to this place we're fussing about.
Q. The Wertzville Road property?
A. Yeah.
Q. Do you remember why they left Germany to come
back to Wertzville Road?
A. I just know he was stationed there.
Q. You don't know why he came back?
A. Why he came back here?
Q. Yes.
A. Yes. We wanted to give him the property.
Q. And do you remember why you wanted to do that?
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A. Did I know why what?
Q. Why did you want to have the property
transferred to Clifford?
A. Well, he was the oldest son, for one thing.
Q. Were you going to be going into the nursing home
with your husband at that point?
A. Well, we did both get in here together, and he
died here.
Q. Your husband died here?
A. Yeah.
Q. Do you remember what year that was?
A. No.
Q. Did you ask Clifford to come back to the United
States?
A. We called him and asked if he would like to have
the property, and it was decided to be for the two of them.
I guess we didn't know Kidist signed.
Q. When you say for the two of them, who do you
mean?
A. Clifford and Bob.
Q. For your two sons. Is that correct?
A. My two sons.
Q. Do you remember what Clifford's response was
when you called him?
A. Well, he seemed to be favorable.
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MR. JACOBSON: He's dead. You can't get any of
that testimony in. That's Dead Man's Rule. It's hearsay.
MR. MILLER: All right. Well, we note your
objection on the record. I mean, she can still answer the
question.
THE DEPONENT: I didn't hear it. You were
talking.
BY MR. MILLER:
Q. Let me repeat the question. The other attorney
here has objected, but let me repeat the question for you
to answer.
Do you remember what
when you asked him to come.back
A. No objections to it.
don't know if they were married
back home or not.
Q. And when you say the,
married?
Clifford's response was
to the United States?
And as far as -- well, I
then or before they come
1, who do you mean? Who was
A. Kidist and Cliff. I don't know the wedding
date.
MR. MILLER: I think those are all the questions
I have at this point.
EXAMINATION
BY MR. JACOBSON:
Q. Mrs. Norton, if my mother were alive, she'd be
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the same age as you, so I have great respect for you.
Did you hear me?
A. I heard that.
Q. She was born in 1912. So was my father.
Can you remember back at all to 1989? Was your
husband ill in 1989?
A. Well, he had cancer. I guess you could say he
was ill, yeah.
Q. What was Robert doing in 1989? Do you remember?
A. Specifically?
Q. Was he in the service?
A. Partly. Not like 20 years like Clifford was,
but 4, 4 years maybe, 2; whittle it down to 2.
Q. Did Robert have problems with the service?
A. No.
Q. Did Robert have any problems at that time that
you can recall?
A. Not that I recall. My boys didn't have
problems.
Q. Now, do you have a will?
A. I guess I do somewhere.
Q. Do you have it here?
A. Well, that's a good question. It must be here
somewhere. Maybe it's in the safety box.
Q. You think we could --
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A. I know I had -- yeah, I had a will.
Q. If we ask, do you think we could see a copy of
it today?
A. If I knew whe re to find it.
MR. JACOBSON: Do you have a copy of it?
MR. MILLER: I don't think we do. We could
probably get one, though.
MR. JACOBSON: Do you have an original of this
document?
MR. MILLER: I don't believe so. I think all we
have is a copy.
MR. JACOBSON: No originals? Does your client
have an original?
Off the record.
(Discussion held off the record.)
THE DEPONENT: I'd like to know how you and
Kidist got your hands onto Bob's money, that he didn't get
anything, that you got it all.
BY MR. JACOBSON:
Q. Well, ma'am, I'd like to find out how I got my
hands on it too because I don't have any hands on anything.
A. Because he's entitled to his share. She isn't
entitled to all of it.
Q. That may be so. I want to ask this question
without insulting you: Do you have any assets today?
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A. Do I have any access?
Q. Assets. Do you have any money today? Do you
own anything today?
A. Well, they say I have a very, very, very little
bit, not much.
Q. Who's they?
A. Hum?
Q. Who is they? Who says that?
A. Didn't get it.
Q. Who says you have very little? You said they
say. Who is that?
A. Well, her nephew is -- what's the word? Well,
he looks after me and pays bills and things.
Q. Power of Attorney?
A. Yes. He has Power of Attorney. Well, my son
has Power of Attorney. But being in Germany, we needed
someone closer here, so Steve is my Power of Attorney,
yeah.
Now, how much was his money anyhow that was
taken?
Q. Well, that's what I was going to ask you, but if
you don't remember --
A. No, I don't remember. I don't remember hardly
anything.
Q. Nothing at all?
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A. Uh-uh.
Q. I don't blame you.
A. Well, that's no excuse. When Clifford died,
something went from me. And from then, I can't hear good,
I can't see good. I'm a mess.
Q. I don't think you're a mess at all.
A. But I do.
Q. I think you're pretty terrific, to be truthful.
A. I don't feel like I am helping anybody anywhere.
I've been praying for just so long, and it don't come.
Q. Can we stop and see A. But I do want Bob to have something out of this
property. It's not fair that he don't.
Q. You'd like to see Bob have something out of this
property now, wouldn't you?
A. He should. He should.
MR. JACOBSON: Can we stop and see if we can get
a copy of her will? I'm under the impression that they
keep her documents here.
MR. MILLER: Let me step out with Bob and talk
to him a second.
(The deposition concluded at 3:10 p.m.)
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22
COMMONWEALTH OF PENNSYLVANIA )
SS.
COUNTY OF CUMBERLAND )
I, AMY R. FRITZ, R.P.R., a Court
Reporter-Notary Public authorized to administer oaths and
take depositions in the trial of causes, and having an
office in Carlisle, Pennsylvania, do hereby certify that
the foregoing is the testimony of MILDRED D. NORTON.
I further certify that before the taking of
said deposition the witness was duly sworn; that the
questions and answers were taken down stenotype by the said
Reporter-Notary, approved and agreed to, and afterwards
reduced to computer printout under the direction of said
Reporter.
I further certify that the proceedings and
evidence are contained fully and accurately in the notes
taken by me on the within deposition, and that this copy is
a correct transcript of the same.
In testimony whereof, I have hereunto
inscribed my hand this 17th day of May, 2007.
Nota Public
NOTARIAL SEAL
AMY R. FRITZ, NOTARY PUBLIC
CITY OF CARLISLE, CUMBERLAND COUNTY
MY COMMISSION EXPIRES MAY 23, 2010
RICO CCt.
'89 AUG 10 PM 4 U
MADE THE day of August in the year
of our Lord one thousand nine hundred eighty-nine (1989 )
i -.,.,? C34 'Kti 458
EXHIBIT
BETWEEN ERNEST L. NORTON and MILDRED D. NORTON, his wife,
of Hampden Township, Cumberland County, Pennsylvania,
hereinafter called
Grantors
and CLIFFORD E. NORTON and'KIDIST K. NORTON, his wife,
of Hampden Township, Cumberland County, Pennsylvania,
hereinafter called
Grantees
WITNESSETH, that in consideration of One and no/100------------------------
------------------------------($1.00)-------------------------Dollar[
in hand paid, the receipt whereof is hereby acknowledged, the said grantors do hereby grant
and convey to the said grantees their heirs and assigns as tenants by the
entireties
ALL that certain piece or lot of ground with the improvements
thereon situated in Hampden Township, Cumberland County, Pennsylvania,
bounded and described as follows, to wit:
BEGINNING at a pin in the center of the State Highway; thence
along lands now or late of C. Walters, North.3 degrees West 741.45
feet to a post; thence along land now or late of the said Rossvill
Hoffman, North 88 degrees East 273 feet to-a post; thence along a
proposed road and land now or late of the said Rossvill Hoffman,.
South 1 degree West 748 feet to a pin in the center of the said
Highway; thence along the same, South 88 degrees West 225 feet to
the Place of BEGINNING.
CONTAINING 4 1/4 acres.
?11 _- I. I
?---? HAVING thereon erected a two and one-half (2 1/2) story"
. fr ame dwelling.
3EING the same property which Mary E. Hallman and Elvira C.
F[allman, granted and conveyed to Ernest L. Norton and Mildred D.
Norton, h:.s wife, Grantors herein, by deed dated December 28,
1934 and recorded in the Office of the Recorder of Deeds for
Cumberland County, Pennsylvania in Deed Book "3", Volume 31,
Page 753.
This is a non-taxable transfer from parents to son and
daughter-in-law.
AMID the said grantors kereby covenant and agree that they
wilt warrant generally the property hereby conveyed.
IN WITNESS WHEREOF, said gi
the day and year first above written,
' $igneD, $edleD artD ?DelibaeD
in the i3rritntt of
--------------
t
•antors have hereunto set their hands and seat
?--?
_....i ._............_.. szAL
ERNEST L. NORTON
.....-._...........-.?...................... ............................._....-... SEAL
.. ?? _Z??LLC L1...r? IlLd /!' .............. SaA
MILDRED D. NORTON
State of PENNSYLVANIA
aa.
County of CUMBERLAND l
On thin, the ! day of August , 1989 ; before me,
the undersigned officer, personally app red Ernest L. Norton and
Mildred D. Norton, his wife
known to me (or satisfactorily proven) to be the persons whose names ' are subscribed to the
within instrument, and acknowledged t at they executed same ?or the purposes therein
contained.
IN WITiVESS WHEREOF, I her nto set my r and o cial sseea[?
QW,
..................................... ................................ ... ---
.'vi ' ?;; • C :? L; Title of Officer.
_ r NCTARIAL SEAL
BETZI A. MC.IiRWI. N'OTAAY PUBLIC
3'{ '.?i •' A! CARU°1. BCRC, CUM5ERLkID CO'J'NTY
MY CCMM13.XN EXPiAES OEC.13. 1942
•X,. T'4:rty' Mamba. Pawsyln4a AsmcaGon of Maluies
I do hereby certify that the precise residcnee and cor
of the within named grantees is q/30 Gt.JU-t 4/1/&C
i
August /d3?: 1989,
BOOK C,34 ,AC! 460
.., r ...... .......................
Attorney for Gran'
i-
1
. I
to post office address
s
f
e.
AGREEMENT
This Agreement is made this
Ste- day y of
i •' ? .
1992, between Clifford E. Norton and Kidist K. Norton, of Enola,
Pennsylvania, and Mildred D. Yo-ton, of Carlis e, Pennsylvania, for
and in consideration of the transfer of real estate and the
improvements thereon known as 4130 Wertzville Road, Enola,
Pennsylvania, from Mildred D. and Ernest L. Norton to Clifford and
Kidist K. Norton, recorded at Deed Book C34, page 453, in the
Cumberland County Recorder of Deeds Office.
It is understood and agreed that at such time that Clifford
or Kidist or both s211, convey or -transfer the property at 4130
Wertzville Road, Enola, after deducting the cost of any and all
improvements and taxes paid by Clifford and/or Kidist Norton during
the term of their ownership and all customary costs, the net
proceeds of the sale in excess of $100,000.00 shall be distributed
one-half (1/2) to Robert E. Norton and one-half (1/2) to Clifford
and Kidist Norton. For purposes of calculating the sales price of
the property, any personal property included in the sale shall be
excluded.
It is further understood that if the property at 4130
Wertzville Road, Enola, is sold, conveyed or transferred for a sum
less than $100,000.00 after deducting the cost of any and all
improvements, then all of the proceeds from the transfer shall-
belong solely to Clifford and Kidist Norton or their heirs,
EXHIBIT
successors and assigns,
Robert E. Norton.
t% , ,
and no mcnevs shall be distributed to
It is further agreed that Clifford and Kidist :nay, in their
absolute discretion, hold the property as long as either shall
survive and choose to occupy the subject property. This agreement
shall in no event be construed to require the sale of the property
by either Clifford or Kidist Norton or to give Robert E. Norton any
rights to approve or veto a contemplated sale.
In the event that Robert E. Norton predeceases Clifford or
Kidist Norton, then this agreement is null and void and no part
shall be given effect. This agreement shall also become null and
void upon the death of the" survivor: of either Clifford or Kidist.
I
This agreement supersedes and supplants all prior agreements
whether oral or written between the.parties.
Witness:
?• (seal)
0(//PF,
Clirro • E. Norton
(seal)
Kidist K. Norton
seal)
Mildred D. Norton
+1 4 ' j
' v
Exhibit C
ROBERT E. NORTON
PLAINTIFF
V.
of IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No.: 2007-729 Civil Term
KIDIST K. NORTON CIVIL ACTION
DEFENDANT JURY TRIAL DEMANDED
AFFIDAVIT OF KIDIST K. NORTON
I am Kidist K. Norton, and I make the within Affidavit of Kidist K. Norton based upon
my personal knowledge:
1. I am an adult individual, and I firmly believe in the obligations of an oath.
2. My deceased husband Clifford Norton and I were called back from Germany in
August of 1989 for the specific purpose of receiving the subject property from Clifford's parents
as a gift.
3. The conveyance of the property located at 4130 Wentzville Road, Enola,
Pennsylvania was an unconditional gift from Mildred Norton and Ernest Norton to Clifford and
me.
4. I did not sign the purported agreement of December 25, 2002 regarding the
property located 4130 Wentzville Road, Enola, Pennsylvania, and I challenge its authenticity.
5. I have never had the purported agreement in my possession.
6. I never saw the purported document in Clifford's possession.
SWORN and subscribed before me this \Tday of , 2007, by Kidist
K. Norton an adult individual who provided proper identification-
TARY C
Kidist K. Norton
COMMONWEALTH OF PENNSYLVANIA
Notarial Seal
My Commission expires on: Jenrft L. Karr. Notary Public
Swatara TwP., Dauphin County
My Commission E)ires March 7, 2011
Member, Pennsylvania Association of Notaries
Leslie D. Jacobson
Attorney for Defendant
The Law Offices of Leslie David Jacobson
8150 Derry Street, Ste. A
Harrisburg, Pennsylvania 17111-5260
Ph: (717) 909-5858
Fx: (717) 909-7788
ROBERT E. NORTON
PLAINTIFF
V.
KIDIST K. NORTON
DEFENDANT
" z
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No.: 2007-729 Civil Term
CIVIL ACTION
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
AND NOW, this 19th day of July, 2007, I, Chad Julius, Law Clerk at the Law Offices of
Leslie D. Jacobson, and hereby certify that on this day I served the within documents upon the
person indicated below, by depositing a true and correct copy of the same in the United States
Mail, postage prepaid, which service satisfies the requirements of the Pennsylvania Rules of
Civil Procedure:
Mr. Douglas G. Miller
Mr. Matthew A. McKnight
Irwin & McKnight
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, PA 17013-3222
LAW OFFICES OF LESLIE DAVID JACOBSON
By:
C lius, Clerk
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CD
]
ROBERT E. NORTON
Plaintiff,
V.
KIDIST K. NORTON
Defendant.
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:No. 2007 - 723 CIVIL TERM
CIVIL ACTION
JURY TRIAL DEMANDED
PLAINTIFF ROBERT E. NORTON ANSWER TO DEFENDANT KIDIST K.
NORTON'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED
COMPLAINT
AND NOW, this 9`h day of August, 2007, comes the Plaintiff, ROBERT E. NORTON,
by and through his attorneys, Irwin & McKnight, and makes the following Answer to the
Preliminary Objections filed by the Defendant, KIDIST K. NORTON, averring as follows:
1. The averments of fact contained in paragraph one (1) of the Defendants'
Preliminary Objections are admitted.
2. The averments of fact contained in paragraph two (2) are admitted.
3. The averments of fact contained in paragraph three (3) are admitted.
4. The averments of fact contained in paragraph four (4) are admitted.
5. The averments of fact contained in paragraph five (5) are admitted.
6. The Amended Complaint identified in paragraph six (6) speaks for itself, and
therefore no response is required.
7. The Amended Complaint identified in paragraph seven (7) speaks for itself, and
therefore no response is required.
8. The Deed identified in paragraph eight (8) speaks for itself, and therefore no
response is required. To the extent a response is required, the Deed identifies only nominal
consideration, the Property was in fact gifted to Defendant and her husband, and the remaining
averments in paragraph eight (8), including any inference that the consideration is anything more
than nominal consideration, are specifically denied and strict proof thereof is demanded.
9. The Amended Complaint identified in paragraph nine (9) speaks for itself, and
therefore no response is required..
10. The Amended Complaint identified in paragraph ten (10) speaks for itself, and
therefore no response is required.
11. The Amended Complaint identified in paragraph eleven (11) speaks for itself, and
therefore no response is required.
12. The averments of fact contained in paragraph twelve (12) are admitted.
13. The averments of fact contained in paragraph thirteen (13) are admitted.
14. The averments of fact contained in paragraph fourteen (14) are admitted.
15. The Deposition identified in paragraph fifteen (15) speaks for itself and therefore
no response is required. To the extent that a response is required, any inference that the original
copy 1992 agreement was not in the possession of Defendant and her now deceased husband is
specifically denied and strict proof thereof is demanded.
16. The averments in paragraph sixteen (16) are denied as stated. It is admitted that
currently Plaintiff has only a photocopy of the 1992 agreement in his possession. The remaining
averments in paragraph sixteen (16), including any inference that the original copy 1992
agreement was not in the possession of Defendant and her now deceased husband, are
specifically denied and strict proof thereof is demanded.
17. The Amended Complaint identified in paragraph seventeen (17) speaks for itself,
and therefore no response is required.
18. After reasonable investigation, Plaintiff is without knowledge or information
sufficient to form a belief as to the truth of the averments contained in paragraph eighteen (18),
so they are therefore specifically denied and strict proof thereof is demanded at trial. By way of
further answer Defendant's assertions that she neither is in possession of nor signed the
Agreement, as well as her affidavit supporting these assertions, all constitute an improper
speaking demurrer.
19. The Deposition identified in paragraph nineteen (19) speaks for itself and
therefore no response is required. To the extent a response is required, the averments in
paragraph nineteen (19), including any inference that Mildred Norton did not sign the 1992
agreement, are specifically denied and strict proof thereof is demanded.
20. The Deposition identified in paragraph twenty (20) speaks for itself and therefore
no response is required. To the extent a response is required, the averments in paragraph
nineteen (20), including any inference that Mildred Norton did not sign the 1992 agreement, are
specifically denied and strict proof thereof is demanded.
21. The Deposition identified in paragraph twenty-one (21) speaks for itself and
therefore no response is required. To the extent a response is required, the averments are denied
as stated, and any inference that Mildred Norton intended to gift the property to her son Clifford
Norton to the exclusion of her other son, the Plaintiff in this action, is specifically denied and
strict proof thereof is demanded.
FIRST PRELIMINARY OBJECTION - DEMURRER
22. The answers contained in paragraphs one (1) through twenty-one (21) to the
Defendants' Preliminary Objections are hereby incorporated by reference as if fully set forth
herein.
23. The averments in paragraph twenty-three (23) are conclusions of law to which no
response is required. To the extent that a response is required, the averments are specifically
denied and strict proof thereof is demanded.
24. The averments in paragraph twenty-four (24) are conclusions of law to which no
response is required.
25. The averments in paragraph twenty-five (25) are conclusions of law to which no
response is required. To the extent that a response is required, the averments are specifically
denied and strict proof thereof is demanded.
26. The averments in paragraph twenty-six (26) are conclusions of law to which no
response is required. To the extent that a response is required, the averments, including any
inference that Defendant fully presents the law in Pennsylvania with regard to the use of copies
of original documents, are specifically denied and strict proof thereof is demanded at trial.
27. After reasonable investigation, Plaintiff is without knowledge or information
sufficient to form a belief as to the truth of the averments contained in paragraph twenty-seven
(27), so they are therefore specifically denied and strict proof thereof is demanded at trial. By
way of further answer Defendant's affidavit and the assertion that she has never had the
agreement in her possession as well as her attached affidavit constitute an improper speaking
demurrer.
28. After reasonable investigation, Plaintiff is without knowledge or information
sufficient to form a belief as to the truth of the averments contained in paragraph twenty-eight
(28), so they are therefore specifically denied and strict proof thereof is demanded at trial. By
way of further answer Defendant's affidavit and the assertion that she did not sign the agreement
as well as her attached affidavit constitute an improper speaking demurrer.
29. The averments in paragraph twenty-nine (29) are conclusions of law to which no
response is required. To the extent a response is required, the averments in paragraph twenty-
nine (29) are denied and strict proof thereof is demanded.
30. The averments of fact in paragraph thirty (30) are admitted.
31. The averments in paragraph thirty-one (31) are conclusions of law to which no
response is required. By way of further answer, to the extent that the genuine issues of
authenticity are based upon facts outside the pleadings, they constitute an improper speaking
demurrer.
32. The averments in paragraph thirty-two (32) are conclusions of law to which no
response is required. To the extent that a response is required, the averments are specifically
denied and strict proof thereof is demanded at trial.
33. The averments in paragraph thirty-three (33) are conclusions of law to which no
response is required. To the extent that a response is required, the averments are specifically
denied and strict proof thereof is demanded at trial.
34. The Agreement identified in paragraph thirty-four (34) speaks for itself, and
therefore no response is required. To the extent a response is required, the averments in
paragraph thirty-four (34), including any inference that the consideration is inadequate or that the
agreement is invalid, are specifically denied and strict proof thereof is demanded.
35. The averments in paragraph thirty-five (35) are conclusions of law to which no
response is required. To the extent that a response is required, the averments, including any
inference that the consideration is inadequate or that the agreement is invalid, are specifically
denied and strict proof thereof is demanded.
36. The averments in paragraph thirty-six (36) are conclusions of law to which no
response is required. To the extent that a response is required, the averments are specifically
denied and strict proof thereof is demanded at trial.
37. The averments in paragraph thirty-seven (37) are conclusions of law to which no
response is required. To the extent that a response is required, the averments are specifically
denied and strict proof thereof is demanded at trial.
WHEREFORE, Plaintiff respectfully requests this Honorable Court to grant the relief
requested in its Complaint and dismiss the Preliminary Objections of Defendants.
SECOND PRELIMINARY OBJECTION - DEMURRER
38. The answers contained in paragraphs one (1) through thirty-seven (37) to the
Defendant's Preliminary Objections are hereby incorporated by reference as if fully set forth
herein.
39. The averments of fact contained in paragraph thirty-nine (39) are admitted.
40. The averments in paragraph forty (40) are conclusions of law to which no
response is required. To the extent that a response is required, the averments are specifically
denied and strict proof thereof is demanded at trial.
41. The averments in paragraph forty-one (41) are conclusions of law to which no
response is required.
42. The averments in paragraph forty-two (42) are conclusions of law to which no
response is required. To the extent that a response is required, the averments are specifically
denied and strict proof thereof is demanded at trial.
43. The averments in paragraph forty-three (43) are conclusions of law to which no
response is required. To the extent that a response is required, the averments are specifically
denied and strict proof thereof is demanded at trial.
WHEREFORE, Plaintiff respectfully requests this Honorable Court to grant the relief
requested in its Complaint and dismiss the Preliminary Objections of Defendants.
THIRD PRELIMINARY OBJECTION - DEMURRER
44. The answers contained in paragraphs one (1) through forty-three (43) to the
Defendant's Preliminary Objections are hereby incorporated by reference as if fully set forth
herein.
45. The averments contained in paragraph forty-five (45) are denied as stated. It is
admitted that Plaintiff relies in part upon the Deed for nominal consideration and the 1992
agreement, but the remaining averments in paragraph forty-five (45), including any inference
that there are not additional fact which support Plaintiff's claims, are specifically denied and
strict proof thereof is demanded.
46. The averments in paragraph forty-six (46) are conclusions of law to which no
response is required. To the extent that a response is required, the averments are specifically
denied and strict proof thereof is demanded at trial.
47. The averments in paragraph forty-seven (47) are conclusions of law to which no
response is required. To the extent that a response is required, the averments are specifically
denied and strict proof thereof is demanded at trial.
48. The Deposition identified in paragraph forty-eight (48) speaks for itself and
therefore no response is required. To the extent a response is required, the averments are denied
as stated, and any inference that Mildred Norton intended to gift the property to her son Clifford
Norton to the exclusion of any benefit to her other son, the Plaintiff in this action, is specifically
denied and strict proof thereof is demanded.
49. The averments in paragraph forty-nine (49) are conclusions of law to which no
response is required. To the extent that a response is required, the averments are specifically
denied and strict proof thereof is demanded at trial.
WHEREFORE, Plaintiff respectfully requests this Honorable Court to grant the relief
requested in his Complaint and dismiss the Preliminary Objections of Defendants.
FOURTH PRELIMINARY OBJECTION - DEMURRER
50. The answers contained in paragraphs one (1) through forty-nine (49) to the
Defendant's Preliminary Objections are hereby incorporated by reference as if fully set forth
herein.
51. The averments in paragraph fifty-one (51) are conclusions of law to which no
response is required. To the extent that a response is required, the averments are specifically
denied and strict proof thereof is demanded at trial.
52. The averments in paragraph fifty-two (52) are conclusions of law to which no
response is required. To the extent that a response is required, the averments are specifically
denied and strict proof thereof is demanded at trial.
53. The averments in paragraph fifty-three (53) are conclusions of law to which no
response is required. To the extent that a response is required, the averments are specifically
denied and strict proof thereof is demanded at trial.
54. The averments in paragraph fifty-four (54) are conclusions of law to which no
response is required. To the extent that a response is required, the averments are specifically
denied and strict proof thereof is demanded at trial.
55. The averments in paragraph fifty-five (55) are conclusions of law to which no
response is required. To the extent that a response is required, the averments are specifically
denied and strict proof thereof is demanded at trial.
WHEREFORE, Plaintiff respectfully requests this Honorable Court to grant the relief
requested in its Complaint and dismiss the Preliminary Objections of Defendants.
Respectfully Submitted,
IRWIN & McKNIGHT
Doug as G 'ller, Esquire
Supreme Court I.D. No. 83776
60 West Pomfret Street
Carlisle, Pennsylvania 17013
(717) 249-2353
Attorney for Plaintiff
Robert E. Norton
Dated: August 9, 2007
ROBERT E. NORTON, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
V. : No. 2007-729 CIVIL TERM
KIDIST K. NORTON, : CIVIL ACTION
Defendant : JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy of the
foregoing document upon the persons indicated below by first class United States mail, postage paid in
Carlisle, Pennsylvania 17013, on the date set forth below:
LESLIE D. JACOBSON, ESQUIRE
8150 DERRY STREET, SUITE A
HARRISBURG, PA 17111-5260
Date: 9''L d'''
IRWIN & McKNIGHT
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Douglas . Miller, Esquire
Supreme Court I.D. No. 83776
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, Pennsylvania 17013-3222
(717) 249-2353
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Leslie D. Jacobson
Attorney for Defendant
The Law Offices of Leslie David Jacobson
8150 Derry Street, Ste. A
Harrisburg, Pennsylvania 17111-5260
Ph: (717) 909-5858
ROBERT E. NORTON
PLAINTIFF
V.
KIDIST K. NORTON
DEFENDANT
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No.: 2007-723 Civil Term
CIVIL ACTION
JURY TRIAL DEMANDED
PRAECIPE FOR LISTING CASE FOR ARGUMENT
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter for the next Argument Court.
1. The matter to be argued is Defendant Kidist K. Norton's Preliminary Objections filed
against Plaintiff Robert E. Norton's Complaint.
2. Counsel arguing the matter are:
a. Counsel for Plaintiff:
b. Counsel for Defendant:
Leslie D. Jacobson
Supreme Court I.D. # 52673
8150 Derry Street
Harrisburg, PA 17111
Mr. Douglas G. Miller
Irwin & McKnight
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, PA 17013-3222
3. I will notify all parties in writing within two days that this case has been listed for
argument.
4. Argument Court Date:
Date: August 15, 2007
e ie D. Jacobson
u eme Court I.D. # 52673
15 Derry Street
AqJisburg, PA 17111
Attorney for Defendant
4.,
ROBERT E. NORTON IN THE COURT OF COMMON PLEAS OF
PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA
V. No.: 2007-723 Civil Term
KIDIST K. NORTON CIVIL ACTION
DEFENDANT JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
AND NOW, this t d'ay of August, 2007, I, Chad Julius, Law Clerk at the Law Offices
of Leslie David Jacobson, attorney for the Plaintiff, hereby certify that on this day I served the
within document upon the person indicated below, first class mail, postage prepaid which
Mr. Douglas G. Miller
Irwin & McKnight
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, PA 17013-3222
Dated: August 15, 2007
C ad Julius
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ROBERT E. NORTON, IN THE COURT OF COMMON PLEAS OF
PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA
V.
KIDIST K. NORTON,
DEFENDANT 07-723 CIVIL TERM
IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT TO
PLAINTIFF'S COMPLAINT
BEFORE BAYLEY, J. AND GUIDO, J.
ORDER OF COURT
AND NOW, this day of October, 2007, the preliminary
objections of defendant to plaintiff's complaint, ARE DISMISSED.
By th
Edgar B. Bayley, J.
,.Zo'uglas G. Miller, Esquire
For Plaintiff
?eslie D. Jacobson, Esquire
For Defendant
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ROBERT E. NORTON,
Plaintiff,
V.
KIDIST K. NORTON,
Defendant.
To Defendant: KIDIST K. NORTON
23 Court Lane
Carlisle, PA 17013
CIVIL ACTION - LAW
NO. 2007 - 723 CIVIL TERM
To Attorney: LESLIE D. JACOBSON, ESQUIRE
Law Offices of Leslie David Jacobson
8150 Derry Street, Suite A
Harrisburg, PA 17111-5260
Date of Notice: October 30, 2007
IMPORTANT NOTICE
YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A
WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN
WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE
CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN (10) DAYS
FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST
YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER
IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT
ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR
TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET
LEGAL HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, Pennsylvania 17013
(717) 249-3166
(800) 990-9108
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
M 4
Americans with Disabilities Act of 1990
The Court of Common Pleas of Cumberland County is required by law to comply with the
Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable
accommodations available to disabled individuals having business before the court, please contact our
office. All arrangements must be made at least 72 hours prior to any hearing or business before the court.
You must attend the scheduled conference or hearing.
IRWIN & McKNIGHT
By:
Douglas G. Miller, Esquire
Supreme Court I.D. No. 83776
Matthew A. McKnight, Esquire
Supreme Court I.D. No. 93010
60 West Pomfret Street
Carlisle, Pennsylvania 17013
(717) 249-2353
Attorneys for Plaintiff,
ROBERT E. NORTON, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
V. : No. 2007-729 CIVIL TERM
KIDIST K. NORTON, : CIVIL ACTION
Defendant
CERTIFICATE OF SERVICE
I, Matthew A. McKnight, Esquire, do hereby certify that I have served a true and correct copy of
the foregoing document upon the persons indicated below by first class United States mail, postage paid
in Carlisle, Pennsylvania 17013, on the date set forth below:
LESLIE D. JACOBSON, ESQUIRE
8150 DERRY STREET, SUITE A
HARRISBURG, PA 17111-5260
KIDIST K. NORTON
23 COURT LANE
CARLISLE, PA 17013
Date: October 30, 2007
IRWIN & McKNIGHT
Douglas G. Miller, Esquire
Supreme Court I.D. No. 83776
Matthew A. McKnight, Esquire
Supreme Court I.D. No. 93010
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, Pennsylvania 17013-3222
(717) 249-2353
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Leslie D. Jacobson
Attorney for Defendant
The Law Offices of Leslie David Jacobson
8150 Derry Street, Ste. A
Harrisburg, Pennsylvania 17111-5260
Ph: (717) 909-5858
Fx: (717) 909-7788
ROBERT E. NORTON
PLAINTIFF
V.
KIDIST K. NORTON
DEFENDANT
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No.: 2007-723 Civil Term
CIVIL ACTION
JURY TRIAL DEMANDED
NOTICE TO PLEAD
TO: Robert E. Norton, Plaintiff,
c/o Mr. Douglas G. Miller
Mr. Matthew A. McKnight
Irwin & McKnight
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, PA 17013-3222
YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE
ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR
A JUDGMENT MAY BE ENTERED AGAINST YOU.
Respectfully submitted,
Dated: November 8, 2007
THE LAW OFF,,S OF LESLIE DAVID JACOBSON
ie L?. Jacobson
52673
81 Oy Street
H?rg, PA 17111
717.909.5858
FAX: 717.909.7788
Attorney for Defendant.
I
Leslie D. Jacobson
Attorney for Defendant
The Law Offices of Leslie David Jacobson
8150 Derry Street, Ste. A
Harrisburg, Pennsylvania 17111-5260
Ph: (717) 909-5858
Fx: (717) 909-7788
ROBERT E. NORTON
PLAINTIFF
V.
KIDIST K. NORTON
DEFENDANT
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No.: 2007-723 Civil Term
CIVIL ACTION
JURY TRIAL DEMANDED
ANSWER WITH NEW MATTER
AND NOW COMES Defendant Kidist K. Norton ("Defendant"), by and through her
attorneys the Law Offices of Leslie David Jacobson, and hereby submit the following Answer
with New Matter to the Amended Complaint of Plaintiff Robert Norton ("Plaintiff'), and in
support thereof state as follows:
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted in part and denied in part. It is admitted that prior to entering a nursing
facility, Ernest L. and Mildred D. Norton, agreed to gift their principal residence at 4102
Wertzville Road, Enola, (hereinafter the "Property") to their son Clifford E. Norton and the
Defendant. Is also admitted that a true and correct copy of the signed Deed dated August 10,
1989 is attached to Plaintiff's amended complaint as exhibit "A". It is denied that the gift to the
Defendant and her husband contained the oral condition that when the Property is sold, half of
the net proceeds would be spilt equally between Plaintiff and his brother as an inheritance.
2
5. Admitted.
6. Admitted.
7. Denied. It is denied that the parties to the transaction agreed to memorialize the
agreement regarding the sharing of proceeds between Plaintiff and his brother upon any future
sale of the Property. It is denied that any such agreement existed.
8. Denied. After reasonable investigation Defendant is without knowledge or
information sufficient to form a belief as to the truth of this averment. Strict proof is demanded
at trial.
9. Denied. It is denied that on December 25, 1992, Defendant signed an agreement
stating that upon sale of the Property and after reimbursement for improvements and taxes, any
proceeds in excess of $100,000.00 were to be divided with one half going to Clifford Norton and
the Defendant and the other half to Plaintiff. It is further denied that a true and correct copy of
the signed agreement is attached to Plaintiff's amended complaint.
10. Denied. It is denied that the signatures on the purported agreement were all
witnessed by Elvira C. Hallman, the sister of Mildred D. Norton. By way of further response,
Elvira C. Hallman is deceased and cannot testify on behalf of Plaintiff.
11. Paragraph 11 of Plaintiff's amended complaint is conclusion of law to which no
response is required. To the extent a response is required then said statement is denied. It is
denied that that by its terms, the purported written agreement was to supercede all prior oral
agreements made between the parties.
12. Denied. It is denied that at all times relevant hereto Clifford Norton and the
Defendant represented to third parties interested in purchasing the Property that they needed a
price high enough to justify the agreed upon split of proceeds between the two brothers.
3
13. Denied. It is denied that over the years Clifford Norton and the Defendant turned
down offers to purchase the Property because they were not deemed high enough to justify a split
of the proceeds between the two brothers.
14. Denied. It is denied that during the time the Property was owned by Defendant,
she has indicated to Plaintiff that it was her understanding that he was to receive his share of the
proceeds form the sale of the Property.
15. Admitted.
16. Admitted.
17. Denied. It is denied that after the sale of the Property, Plaintiff made demand for
his share of the proceeds according to the terms outlined in the purported agreement dated
December 26, 1992 and upon the oral promises and representations of the parties.
18. Admitted in part and denied in part. It is admitted that Defendant has refused to
provide Plaintiff any proceeds from the sale of the Property. It is denied that Plaintiff is entitled
to any proceeds from the sale of the Property.
COUNTI
BREACH OF CONTRACT
19. The responses in paragraphs 1 through 18 above are made part hereof and
incorporated by reference as though fully set forth textually.
20. Denied. It is denied that in consideration for receiving the Property, Defendant
and her husband agreed that upon any sale of the Property they would share the proceeds with
Plaintiff.
21. Denied. It is denied that any agreement between the parties was reduce to writing
by Defendant's husband. It is specifically denied that Defendant signed any agreement that
would share the proceeds from the sale of the Property with Plaintiff.
4
22. Denied. It is denied that Defendant and her now deceased husband retained
possession of the original signed purported agreement.
23. Paragraph 23 of Plaintiff s amended complaint is a conclusion of law to which no
response is required. To the extent a response is required then said statement is denied. It is
denied that Defendant has breached any contract to which Plaintiff is a third party beneficiary.
24. Paragraph 24 of Plaintiff s amended complaint is a conclusion of law to which no
response is required. To the extent a response is required then said statement is denied. It is
denied that Defendant has breached any contract to which Plaintiff is a third party beneficiary. It
is denied that Plaintiff is entitled to any proceeds from the sale of the Property.
25. Paragraph 25 of Plaintiff s amended complaint is a conclusion of law to which no
response is required. To the extent a response is required then said statement is denied. It is
denied that Defendant has breached any contract to which Plaintiff is a third party beneficiary. It
is denied that Plaintiff is entitled to any proceeds from the sale of the Property.
WHEREFORE, Defendant Kidist K. Norton prays this court enter judgment in her favor
and against Plaintiff, plus costs of this suit, attorneys fees, and for whatever other relief is deemed
just and appropriate.
COUNT II
UNJUST ENRICHMENT
26. The responses in paragraphs 1 through 25 above are made part hereof and
incorporated by reference as though fully set forth textually.
27. Denied. It is denied that Defendant accepted the transfer of the Property with full
knowledge and agreement that Earnest L. and Mildred Norton wanted Plaintiff to receive a share
of the proceeds upon the sale of the Property. By way of further response, the Deed of August
5
10, 1989, which speaks for itself, makes clear that the transfer to Defendant was an unconditional
gift of fee simple ownership.
28. Denied. It is denied that Defendant furnished no consideration for the receipt of
the transfer of the Deed. By way of further response, the August 10, 1989 Deed, which speaks
for itself, purports consideration of one dollar.
29. Denied. It is denied that Defendant acknowledged and agreed that Plaintiff was to
receive a share of the proceeds from the sale of the property by signing the agreement attached to
Plaintiff's amended complaint as exhibit "B". By way of further response, Defendant did not
sign the purported agreement nor does she have it in her possession.
30. Paragraph 30 of Plaintiff's amended complaint is a conclusion of law to which no
response is required. To the extent a response is required then said statement is denied. It is
denied that Defendant had made any agreement prior to the transfer of the Property. It is further
denied that Defendant was to provide Plaintiff with any proceeds from the sale of the Property.
31. Paragraph 31 of Plaintiff s amended complaint is a conclusion of law to which no
response is required. To the extent a response is required then said statement is denied. It is
denied that it is inequitable for Defendant to retain the proceeds from the sale of the Property. It
is further denied that Defendant obligated herself orally or in writing to share the proceeds from
the sale of the Property with Plaintiff.
32. Paragraph 32 of Plaintiff's amended complaint is a conclusion of law to which no
response is required. To the extent a response is required then said statement is denied. It is
denied that Defendant wrongfully secured a substantial benefit from the sale of the real estate
that has been conditionally gifted to her and her husband. It is further denied that it is
6
unconscionable for her to retain that benefit thereby effectively excluding Plaintiff from any
inheritance.
WHEREFORE, Defendant Kidist K. Norton prays this court enter judgment in her favor
and against Plaintiff, plus costs of this suit, attorneys fees, and for whatever other relief is deemed
just and appropriate.
COUNT III
BREACH OF CONDITIONAL GIFT
33. The responses in paragraphs 1 through 32 above are made part hereof and
incorporated by reference as though fully set forth textually.
34. Admitted in part and denied in part. It is admitted that Ernest L. and Mildred D.
Norton gifted to Defendant and her husband the Property. It is denied that the gift of the
Property was subject to any oral condition that upon the sale of the Property, Defendant and her
husband would share the proceeds with the Plaintiff.
35. Denied. It is denied that the conditional gift of the Property was subsequently
memorialized in writing by the surviving parties after the Property was transferred. By way of
further response, the Deed of August 10, 1989, which speaks for itself, makes clear that the
transfer to Defendant was an unconditional gift of fee simple ownership.
36. Denied. It is denied that the surviving parties to the gift of the Property
subsequently agreed to change the terms of the gift in writing to provide Plaintiff with an
inheritance by providing him with a share of the proceeds from any sale of the Property. By way
of further response, Defendant has never made any agreement, oral or in writing, to share any
proceeds from the sale of the Property with Plaintiff.
37. Paragraph 37 of Plaintiff's amended complaint is a conclusion of law to which no
response is required. To the extent a response is required then said statement is denied. It is
7
denied that Defendant has breached the terms of any conditional gift requiring the full return of
all net proceeds from the sale of the Property to the surviving Grantor. It is further denied that
Defendant was under an obligation to share any proceeds from the sale of the Property with
Plaintiff.
WHEREFORE, Defendant Kidist K. Norton prays this court enter judgment in her favor
and against Plaintiff, plus costs of this suit, attorneys fees, and for whatever other relief is deemed
just and appropriate.
COUNT IV
WRONGFUL CONVERSION
38. The responses in paragraphs I through 37 above are made part hereof and
incorporated by reference as though fully set forth textually.
39. Denied. It is denied that Defendant was obligated upon receipt of the net
proceeds of the sale of the Property to a third party to pay over to Plaintiff one half of the net
proceeds. It is denied that Plaintiff is entitled to any proceeds from the sale of the Property.
40. Denied. It is denied that by appropriating all of the net proceeds from the sale of
the Property, Defendant has wrongfully converted Plaintiff s inheritance. It is denied that
Plaintiff is entitled to any proceeds from the sale of the Property.
41. Admitted in part and denied in part. It is admitted that Defendant used the
proceeds from the sale of the Property to pay her own financial obligations. It is denied that
Defendant wrongfully converted the funds received from the sale of the Property. It is further
denied that Defendant agreed to pay any of the proceeds received from the sale of the Property
with Plaintiff.
8
WHEREFORE, Defendant Kidist K. Norton prays this court enter judgment in her favor
and against Plaintiff, plus costs of this suit, attorneys fees, and for whatever other relief is deemed
just and appropriate.
COUNT V
CONSTRUCTIVE TRUST
42. The responses in paragraphs I through 41 above are made part hereof and
incorporated by reference as though fully set forth textually.
43. Denied. It is denied that that Defendant accepted the transfer of the Property with
full knowledge and agreement that Ernest L. and Mildred D. Norton wanted Plaintiff to receive a
share of the proceeds upon the sale of the Property. By way of further response, the Deed of
August 10, 1989, which speaks for itself, makes clear that the transfer to Defendant was an
unconditional gift of fee simple ownership.
44. Denied. It is denied that Defendant and her husband obligated themselves both
orally or in writing to provide Plaintiff with a share of the proceeds from the sale of the Property.
45. Denied. It is denied that Defendant's stated her understating and intention to
provide Plaintiff with his share of the proceeds from the sale of the Property either shortly before
or after the sale of the Property.
46. Paragraph 46 of Plaintiff's amended complaint is a conclusion of law to which no
response is required. To the extent a response is required then said statement is admitted in part
and denied in part. It is admitted that Defendant has refused to provide Plaintiff with a share of
the proceeds from the sale of the Property. It is denied that Defendant wrongfully retained the
proceeds of the sale of the Property and should be deemed as holding a constructive trust for the
Plaintiff. By way of further response, Defendant had no obligation to share any proceeds from
the sale of the Property with Plaintiff.
9
47. Admitted.
48. Admitted.
WHEREFORE, Defendant Kidist K. Norton prays this court enter judgment in her favor
and against Plaintiff, plus costs of this suit, attorneys fees, and for whatever other relief is deemed
just and appropriate.
NEW MATTER
49. The responses in paragraphs 1 through 48 above are made part hereof and
incorporated by reference as though fully set forth textually.
50. Elvira C. Hallman is deceased and cannot testify on behalf of the Plaintiff.
51. On or about April 13, 2007, Plaintiff served on Defendant a notice that he
intended to take the deposition of Mildred R. Norton on May 2, 2007.
52. On May 2, 2007, Plaintiff conducted the deposition of Mildred Norton wherein
she gave testimony. A true and correct copy of the Deposition of Mildred D. Norton is
incorporated by reference and is more fully set forth as exhibit "A".
53. During the Deposition, Counsel for the Defendant asked Plaintiff to produce an
original copy of the purported December 25, 1992 agreement between the parties.
54. Counsel for Plaintiff stated that an original of the purported agreement could not
be produced and that Plaintiff could only produce a copy of said agreement. See Deposition of
Mildred Norton, P. 19 18-13.
55. Defendant is not in possession of an original of the signed purported Agreement,
nor did she sign the purported agreement. See Affidavit of Kidist K. Norton attached and
incorporated by reference as exhibit "B".
10
56. It is believed and therefore averred that the copy of the purported December 25,
1992 agreement is a fabricated document.
57. Because Defendant raises a genuine issue as to the authenticity of the purported
agreement, the duplicate is not admissible as evidence to support Plaintiff's case and therefore
Plaintiff cannot prevail on Count I of his amended complaint.
58. Because Plaintiff s whole case relies on a document for which an original cannot
be produced, it would be unfair to admit the duplicate in lieu of the original.
59. Even if the document is admissible as evidence, the document is invalid because it
lacks consideration.
60. The document states that "[I]n consideration of the transfer of real estate and the
improvements thereon known as 4130 Wentzville Road, Enola, Pennsylvania, from Mildred D.
and Ernest L. Norton to Clifford and Kidist K. Norton, recorded at Deed Book C34, page 458, in
the Cumberland County Recorder of Deeds Office."
61. The document on its face recites that the consideration supporting the purported
agreement is a transfer of property which occurred three years earlier than the date of the
purported agreement.
62. The plain language of the document, which speaks for itself, purports past
consideration and past consideration is insufficient to support a contract in Pennsylvania.
63. Mildred Norton testified that she does not remember signing any other agreement
regarding the transfer of the property other than the August 10, 1989 deed transferring the
Property to Clifford Norton and Defendant. See Deposition of Mildred Norton, P. 12 ¶21-25 - P.
1311-9.
11
64. Mildred Norton further testified that she does not remember seeing or signing the
purported December 25, 1992 agreement, stating on the record that "Oh, I don't remember that
except lately somebody, I think, showed it to me. See Deposition of Mildred Norton, P. 13 ¶7-9.
65. Mildred Norton also testified that it was her and her late husband's intent to give
the property to her son Clifford and recalled him from Germany while he was on active duty in
the military so she and her husband could give him and Defendant the property. See Deposition
of Mildred Norton, P. 15 $18-25 and P. 16 $1-4.
66. The testimony of Mildred Norton does not support Plaintiffs case against
Defendant. Mildred Norton does not remember signing nor seeing the agreement up until
someone recently showed it to her. See Deposition of Mildred Norton, P. 13 17-9.
67. Plaintiff has failed to state a cause of action upon which relief can be granted
against Defendant for unjust enrichment.
68. Plaintiff has failed to state a cause of action for which relief can be granted for
breach of an conditional gift against Defendant.
69. The Deed itself nor Mildred Norton's testimony support Plaintiff s claim that the
gift to Clifford Norton and Defendant was anything less than a gift of fee simple ownership.
70. The Deed, which speaks for itself, is clear on its face that no right was reserved in
favor of Plaintiff that would entitle him to any proceeds from the sale of the Property.
71. Moreover, Mildred Norton testified that at the time of the transfer, it was her and
her husband's intent to giver her son Clifford the property, because he was the oldest son. See
Deposition of Mildred Norton, P. 15 ¶18-25 and P. 16 ¶1-4.
72. Even if the Court would construe Mildred Norton's testimony as supporting a
cause of action for breach of an conditional gift, her testimony is barred by the Parol Evidence
12
rule because her testimony directly contradicts the clear and unambiguous language of the
August 10, 1989 Deed.
73. Even if Plaintiff were to prevail on Counts IV and V against Defendant, relief
cannot be granted unless Plaintiff can succeed under Counts I, II, or III.
74. Plaintiff has failed to state a claim for which relief can be granted against
Defendant on Counts I, II, or III of his amended complaint.
75. Plaintiff has failed to state a claim for which relief can be granted under counts IV
and V of the amended complaint.
76. Plaintiff s claims are barred by the statute of frauds.
77. Plaintiff's claims are barred by the doctrine of merger.
WHEREFORE, Defendant Kidist K. Norton prays this court enter judgment in her favor
and against Plaintiff, plus costs of this suit, attorneys fees, and for whatever other relief is deemed
just and appropriate.
Respectfully submitted,
THE LAW OFFICES OF LESLIE DAVID JACOBSON
Dated: November 8, 2007
150 a Street
arrisb g, PA 17111
717-909.W8
FAX: 717.909.7788
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ROBERT E. NORTON,
Plaintiff,
Vs.
KIDIST K. NORTON,
Defendant.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No. 2007 - 723 CIVIL TERM
CIVIL ACTION
JURY TRIAL DEMANDED
C I
(OPY
DEPOSITION OF: MILDRED D. NORTON
TAKEN BY: Plaintiff
BEFORE: Amy R. Fritz, R.P.R.
Notary Public
DATE: May 2, 2007, 2:30 p.m.
PLACE: Church of God Home
801 North Hanover Street
Carlisle, Pennsylvania
APPEARANCES:
IRWIN & McKNIGHT
BY: DOUGLAS G. MILLER, ESQUIRE
and
MATTHEW A. McKNIGHT, ESQUIRE
FOR - PLAINTIFF
LAW OFFICES OF LESLIE DAVID JACOBSON
BY: LESLIE D. JACOBSON, ESQUIRE
FOR - DEFENDANT
Reporting Services
57 • 71 7-258 3 657 • 717-258-0383 fax
courtreporters4u @ad com
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INDEX TO TESTIMONY
DEPONENT EXAMINATION PAGE
Mildred D. Norton By Mr. Miller 3
By Mr. Jacobson 17
INDEX TO EXHIBITS
NO. DESCRIPTION PAGE
1 Deed 8
2 Agreement 12
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STIPULATION
It is hereby stipulated by and between the
respective parties that signing, sealing, certification and
filing are waived; and that all objections except as to the
form of the question are reserved until the time of trial.
MILDRED D. NORTON, called as a witness, being
duly sworn, was examined and testified as follows:
EXAMINATION
BY MR. MILLER:
Q. Mildred, can you state your full name?
A. Mildred Dorothy Hallman Norton.
Q. And how do you spell your last name?
A. Norton?
Q. Yes.
A. N-o-r-t-o-n.
Q. And do you know what your date of birth is?
A. August 12, 1912.
Q. And where do you currently reside?
A. Huh?
Q. Where do you reside?
A. This home here.
Q. And do you know what this home is called?
A. Church of God.
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Q. Do you know how long you've lived here?
A. Oh, dear. 20 some years, I guess.
Q. Do you remember where you lived before the home?
A. Before this home?
Q. Yes.
A. Yeah. The white home in the trailer home out
in -- I can't think of the name of the road. You'll have
to bear with me; I'm --
Q. That's okay. 4120 Wertzville Road, is that
where you lived?
A. Yeah, uh-huh.
Q. And how long did you live there?
A. I don't know. I don't know if Bob remembers or
not.
Q. Well, you lived at the Wertzville Road home
before you moved here. Is that correct?
A. Uh-huh.
Q. 20 some years ago? Is that a yes?
A. Yes.
Q. Make sure you say yes or no so that we can make
sure we get an accurate answer. Okay? And I should tell
you, too, if there's any question that you don't understand
and you need us to repeat something, just let us know and
we'll repeat the question. Okay? And if you need to take
a break, we can take a break at any time also.
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A. If I think of what?
Q. If we need to take a break.
A. Oh.
Q. If you need to get a drink, go to the bathroom
or something, we can do that. Okay? Do you understand?
A. Okay.
Q. Who lived at 4120 Wertzville Road with you?
A. 21 -- see, I don't remember.
ROBERT NORTON: It's the trailer.
MR. MILLER: You can't say anything.
THE DEPONENT: 2140, I believe, and 2130 was the
other one.
BY MR. MILLER.
Q. Well, what was on the property? Was there more
than one building?
A. Yeah. There was a white building, and then we
put a trailer in it in on the land so that I could look
after my sister.
Q. And when you say we put a trailer in, who is we?
A. My husband and I.
Q. You and your husband? And your husband's name
is Earnest. Is that correct?
A. Earnest.
Q. Did both of you live at the property at
Wertzville Road?
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A. Um-hum.
Q. Did you live in --
A. We lived in the house, and mostly we lived in
the trailer.
MR. JACOBSON: I don't want to object to every
question that's leading, so I'm going to let you go, and
you're going to let-me go. Fair enough?
MR. MILLER: Yes.
MR. JACOBSON: Because I'm sure a judge would
permit some leading.
MR. MILLER: Yes, and I will try to keep that to
a minimum.
MR. JACOBSON: Okay.
BY MR. MILLER:
Q. Did anyone live in the trailer with you and your
husband?
A. Me and my husband. Well, not at first, but
Kidist and my son, Clifford, lived with -- no. We weren't
all in the trailer at the same time. Now, see, blank. I
can't help you.
Q. Well, did Kidist and Clifford live in the
trailer at some point?
A. Oh, yeah.
Q. Do you remember when that was?
A. Well, just before he died.
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Q. Just before who died?
A. Clifford died.
Q. So your son, Clifford, also died. Is that
correct?
A. Yeah.
Q. Do you remember when he died?
A. Clifford -- no, I don't remember when, but I
know it was awful darn quick. It was within a minute.
Said he had a headache, and he just went in the kitchen to
get medicine, and she heard a bump and -- this is the way I
hear the story, as I wasn't there for it. She went back in
there and he was dead. Shock to her and everybody else.
Q. Was your son, Clifford, living at the property
when he died?
A. Uh-huh.
Q. And your daughter-in-law, Kidist, was also
living there?
A. Um-hum.
Q. Is that a yes?
A. Huh?
Q. You need to say yes or no.
A. Oh. Yes.
Q. Now, do you remember transferring the real
estate to your son and his wife?
A. All I can sort of remember is my husband and I
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planning that Clifford and Bob are the two, the only two
kids we had -- I forgot what I was going to give you. I
knew I wouldn't be any good at this.
Q. That's okay. We'll back up. So in addition to
Clifford, you also have another son. Is that correct?
A. Robert.
Q. Robert's your other son?
A. Um-hum.
Q. Is that a yes or no?
A. Yes.
Q. Do you remember transferring the property at
Wertzville Road to your son, Clifford?
A. Well, I did it; I must have done it.
Q. Do you remember when that happened?
A. Uh-uh. No.
Q. Do you remember, was it before you moved into
the nursing home here?
A. What?
Q. Did you transfer the property before you moved
into the nursing home?
A. I guess I'll have to say no. I don't...
Q. No, or you're not sure?
A. I'm not -- well, I'm not sure.
(Plaintiff's Exhibit No. 1 was marked.)
BY MR. MILLER:
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Q. We're showing you what we've now marked as
Plaintiff's Exhibit Number 1. Do you recognize this
document?
A. Between Earnest and Mildred.
Q. Is that your name listed at the top?
MR. JACOBSON: You asked her if she recognized
the document. Let's see if she can answer that question.
THE DEPONENT: Yeah. That's my -- if that's the
one you mean, that's me. Is that the one you're talking
about?
BY MR. MILLER:
Q. Do you recognize this document?
A. I wouldn't say, no.
Q. Let's try it this way: Let's turn to the last
page of the document. Is that your signature near the top?
A. Earnest L. and Mildred D. That's mine, yeah.
Q. Is that your signature there above where your
name is printed?
A. You mean this?
Q. At the top of the document above where your name
is printed, is that your signature?
A. This one?
Q. Yes.
A. Yeah, that's mine.
Q. Do you remember signing this document?
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A. No. It's my signature, though. But, no, I
don't remember. But it's like I've been telling everybody,
I forget anything right away.
Q. What's the date that's indicated at the top of
the document?
A. What's the date?
Q. The fi rst page.
A. Come a gain.
Q. Let's flip back to -- so that's your signature
on the last page, right?
A. Yeah, that's my signature.
Q. What's the date on the top of the first page?
A. August 10, ' 89 .
Q. And wh at's the title of the document?
A. This? The title of what?
Q. What's the title of this exhibit?
A. I don' t get it. I don't know what you're
asking.
MR. MILLER; Well,.you'll let me lead her a
little bit?
MR. JACOBSON: The document speaks for itself.
You asked her if she remembered it. She said no. I mean,
that's as far as you can go.
MR. MILLER: Well, she's verified her signature.
MR. JACOBSON: It's notarized. I don't have any
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problem with the document speaking-for itself.
BY MR. MILLER:
Q. Do you remember in 1989 transferring the
property at Wertzville Road to your son and
daughter-in-law?
MR. JACOBSON: She already said no.
THE DEPONENT: I don't remember, but I must have
done it.
BY MR. MILLER:
Q. Do you remember any conversations with your son,
Clifford, about transferring the property to him?
A. No, sir.
Q. Do you remember any conversations that you had
with your daughter-in-law, Kidist, about transferring the
property?
A. I don't remember anything with Kidist and the
property. What I don't understand is how in the world they
got away with Bob's money just like that. And she was no
more entitled to that than the man on the moon.
Q. When you say Bob's money, what are you referring
to?
A. The money was supposed to go to Bob and
Clifford, the two, my two sons. They were supposed to get
the property. They're the only two I remember.
Q. Was that always your understanding that the two
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boys were supposed to get the property?
A. Um-hum. And Clifford, after Clifford's -- well,
the money they owed, after that was paid, half of the money
was supposed to go to Clifford and the other half, to my
way of thinking, was supposed to go to Bob. And as it
turns out, Kidist has it all. I don't know how she did it.
Q. Was Clifford or Kidist supposed to keep the
property for themselves?
A. Well, when he died, she couldn't really to know
what was what. No, I don't think they thought of anything
other than themselves.
Q. Well, I'm asking what your understanding was..
Was the property --
A. My understanding was the property was supposed
to be in two pieces; one was Bob and one was Clifford.
When Clifford died, that left Bob. But Bob should still
have had his half of, you know -- Clifford was half and Bob
was half. But as it turns out, Bob didn't get a cent.
Kidist got it all. And how in the world she and-her lawyer
did that, I don't know. I just don't know.
Q. Do you remember signing any other documents?
A. Do I remember what?
Q. Do you remember signing any other documents with
regard to the property?
A. I don't remember.
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(Plaintiff's Exhibit No. 2 was marked.)
THE DEPONENT: I can't say I do when I don't.
BY MR. MILLER:
Q. I'm going to show you what we've now marked as
Plaintiff's Exhibit Number 2. Do you see this paper in
front of you?
A. Oh, I don't remember that except lately
somebody, I think, showed it to me. But since my eyes are
so bad and I can't read, I'm at a loss.
Now, this is my sister's signature. But just
because that's so doesn't say it actually is, if you know
what I mean.
Q. Well, let me lead you through it here. I'm
going to turn to the second page of this document that
we've marked as Plaintiff's Exhibit Number 1. Do you see
where your name is typed at the bottom of the page?
A. Yeah.
Q. Is that your signature above that typed name?
A. Clifford, Kidist and Mildred is what it says,
and that's my writing.
Q. Okay. Do you recognize your son's signature?
A. Yeah.
Q. Is that his signature on the document?
A. Yeah, that's it.
Q. And do you recognize.Kidist's signature?
A
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A. Well, in a way. Isn't very often I see it, but
I couldn't swear but --
Q. That could be her signature?
A. Yeah. As long as these are ours, I imagine
that's hers.
Q. And whose name is written to the left under the
witness line?
A. What about it?
Q. Whose name is written to the left on the bottom
of the second page?
A. It's my sister. She was two years older than I
am.
Q. And what's that sister's name?
A. Elvira Hallman.
Q. She is also deceased. Is that correct?
A. Um-hum.
Q. Do you remember when she died?
A. At least three years ago.
Q. Do you remember signing any papers in front of
your sis ter?
A. Uh-uh.
Q. Do you know when you might have signed this
document or where you might have signed the document?
A. I'm not guessing when I don't know it. I
believe in truth. If you can't tell that, then there's
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something wrong.
Q. What was your son, Clifford's, job? Where did
he work?
A. Well, he was in the Air Force.
Q. Was he stationed in the United States?
A. Well, he was stationed all around.
Q. Do you remember where he was stationed last?
A. Germany? Was Germany -- that's where he met
Kidist.
Didn't he meet you --
Q. Well, you can't ask her a question right now.
A. Sorry.
Q. Germany, is that what.you think?
A. Yeah, I think it was Germany. They came from
Germany to this place we're fussing about.
Q. The Wertzville Road property?
A. Yeah.
Q. Do you remember why they left Germany to come
back-to Wertzville Road?
A. I just know he was stationed there.
Q. You don't know why he came back?
A. Why he came back here?
Q. Yes.
A. Yes. We wanted to give him the property.
Q. And do you remember why you wanted to do that?
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A. Did I know why what?
Q. Why did you want to have the property
transferred to Clifford?
A. Well, he was the oldest son, for one thing.
Q. Were you going to be going into the nursing home
with your husband at that point?
A. Well, we did both get in here together, and he
died here.
Q. Your husband died here?
A. Yeah.
Q. Do you remember what year that was?
A. No.
Q. Did you ask Clifford to come back to the United
States?
A. We called him and asked if he would like to have
the property, and it was decided to be for the two of them.
I guess we didn't know Kidist signed.
Q. When you say for the two of them, who do you
mean?
A. Clifford and Bob.
Q. For your two sons. Is that correct?
A. My two sons.
Q. Do you remember what Clifford's response was
when you called him?
A. Well, he seemed to be favorable.
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MR. JACOBSON: He's dead. You can't get any of
that testimony in. That's Dead Man's Rule. It's hearsay.
MR. MILLER: All right. Well, we note your
objection on the record. I mean, she can still answer the
question.
THE DEPONENT: I didn't hear it. You were
talking.
BY MR. MILLER:
Q. Let me repeat the question. The other attorney
here has objected, but let me repeat the question for you
to answer.
Do you remember what
when you asked him to come back
A. No objections to it.
don't know if they were married
back home or not.
Q. And when you say the;
married?
A. Kidist and Cliff. I
Clifford's response was
to the United States?
And as far as -- well, I
then or before they come
y, who do you mean? Who was
don't know the wedding
date.
MR. MILLER: I think those are all the questions
I have at this point.
EXAMINATION
BY MR. JACOBSON:
Q. Mrs. Norton, if my mother were alive, she'd be
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the same age as you, so I have great respect for you.
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Did you hear me?
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A. I heard that.
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Q. She was born in 1912. So was my father.
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Can you remember back at all to 1989? Was your
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husband ill in 1989?
A. Well, he had cancer. I guess you could say he
was ill, yeah.
Q. What was Robert doing in 1989? Do you remember?
A. Specifically?
Q. Was he in the service?
A. Partly. Not like 20 years like Clifford was,
but 4, 4 years maybe, 2; whittle it down to 2.
Q. Did Robert have problems with the service?
A. No.
Q. Did Robert have any problems at that time that
you can recall?
A. Not that I recall. My boys didn't have
problems.
Q. Now, do you have a will?
A. I guess I do somewhere.
Q. Do you have it here?
A. Well, that's a good question. It must be here
somewhere. Maybe it's in the safety box.
Q. You think we could --
.
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A. I know I had -- yeah, I had a will.
Q. If we ask, do you think we could see a copy of
it today?
A. If I knew where to find it.
MR. JACOBSON: Do you have a copy of it?
MR. MILLER: I don't think we do. We could
probably get one, though.
MR. JACOBSON: Do you have an original of this
document?
MR. MILLER: I don't believe so. I think all we
have is a copy.
MR. JACOBSON: No originals? Does your client
have an original?
Off the record.
(Discussion held off the record.)
THE DEPONENT: I'd like to know how you and
Kidist got your hands onto Bob's money, that he didn't get
anything, that you got it all.
BY MR. JACOBSON:
Q. Well, ma'am, I'd like to find out how I got my
hands on it too because I don't have any hands on anything.
A. Because he's entitled to his share. She isn't
entitled to all of it.
Q. That may be so. I want to ask this question
without insulting you: Do you have any assets today?
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A. Do I have any access?
Q. Assets. Do you have any money today? Do you
own anything today?
A. Well, they say I have a very, very, very little
bit, not much.
Q. Who's they?
A. Hum?
Q. Who is they? Who says that?
A. Didn't get it.
Q. Who says you have very little? You said they
say. Who is that?
A. Well, her nephew is -- what's the word? Well,
he looks after me and pays.bills and..things.
Q. Power of Attorney?
A. Yes. He has Power of Attorney. Well, my son
has Power of Attorney. But being in Germany, we needed
someone closer here, so Steve is my Power of Attorney,
yeah.
Now, how much-was. his money anyhow that was
taken?
Q. Well, that's what I was going to ask you, but if
you don't remember A. No, I don't remember. I don't remember hardly
anything.
Q. Nothing at all?
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A. Uh-uh.
Q. I don't blame you.
A. Well, that's no excuse. When Clifford died,
something went from me. And from then, I can't hear good,
I can't see good. I'm a mess.
Q. I don't think you're a mess at all.
A. But I do.
Q. I think you're pretty terrific, to be truthful.
A. I don't feel like I am helping anybody anywhere.
I've been praying for just so long, and it don't come.
Q. Can we stop and see A. But I do want Bob to have something out of this
property. It's not fair that he don't.
Q. You'd like to see Bob have something out of this
property now, wouldn't you?
A. He should. He should.
MR. JACOBSON: Can we stop and see if we can get
a copy of her will? I'm under the impression that they
keep her documents here.
MR. MILLER: Let me step out. with Bob and talk
to him a second.
(The deposition concluded at 3:10 p.m.)
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COMMONWEALTH OF PENNSYLVANIA }
SS.
COUNTY OF CUMBERLAND )
I, AMY R. FRITZ, R.P.R., a Court
Reporter-Notary Public authorized to administer oaths and
take depositions in the trial of causes, and having an
office in Carlisle, Pennsylvania, do hereby certify that
the foregoing is the testimony of MILDRED D. NORTON.
I further certify that before the taking of
said deposition the witness was duly sworn; that the
questions and answers were taken down stenotype by the said
Reporter-Notary, approved and agreed to, and afterwards
reduced to computer printout under the direction of said
Reporter.
I further certify that the proceedings.and
evidence are contained fully and accurately in the notes
taken by me on the within deposition, and that this copy is
a correct transcript of the same.
In testimony whereof, I have hereunto
inscribed my hand this 17th day of May, 2007.
Nota Public
NOTARIAL SEAL
AMY R. FRITZ, NOTARY PUBLIC
CITY OF CARLISLE, CUMBERLAND COUNTY
MY COMMISSION EXPIRES MAY 23, 2010
1E9 AUG 10 Ph 4 ez
r'
MADE THE day of August in the year
of our Lord one tM?aand nine hundred eighty-nine (1989 )
BETWEEN ERNEST L. NORTON and MILDRED D. NORTON, his wife,
of Hampden Township, Cumberland County, Pennsylvania,
hereinafter called
Grantors ,
and CLIFFORD E. NORTON and XIDIST K: NORTON, his wife,
of Hampden Township,. Cumberland County, Pennsylvania,
hereinafter' called
Grantees .
WITNESSETH, that in consideration of One and no/100------------------------ •
. ----------------------- --------($1.00)--------- ---------------- . Dollarl
in hand paid, the receipt whereof is hereby acknowledged, the said grantors do hereby grant
and convey to the said granter their heirs and assigns as tenants by the
entireties
ALL that certain piece or lot of ground with the improvements
thereon situated in Hampden Township, Cumberland County,. Pennsylvania.,
bounded and described as fellows, to Wit:
BEGINNING at a pin in the center of the State Highway; thence
along lands now or late of C. Walters, North.3 degrees West 741.45
feet to a post; thence along land now or late of the said Rossvill
Hoffman, North 88 degrees East 273 feet to•a post; thence along a
proposed road. and land now or late of the said Rossvill Hoffman,.
South 1 degree West 748 feet to a pin in the center of the said
Highway; thence along the same, South 88 degrees West 225 feet to.
the Place of BEGINNING.
CONTAINING 4 1/4 acres.
C34 458
Fj?EX HIBTT
HATING thereon -erected a two and one-half (2 1/2) story
fr a.me dwelling.
BEING tale same property which Mary E. Hallman and Elvira C.""
Hallman, granted and conveyed to Ernest L. Norton and Mildred D.
Norton, hls wife, Grantors herein, by deed dated December 28,
1934 and recorded in the Office of the Recorder of Deeds for
Cumberland County, Pennsylvania in Deed Book "B", Volume 31,
Page 753.
This is a non-taxable transfer from parents to son an d
daughter-in-law.
eooK C 34 !AGE 459 .
AND .1. =44 grantors hereby covenant and agree that the;
will warrnnt generally the property hereby conveyed.
IN WITNESS WHEREOF, said grantors have hereunto set their hands and seaJ3
the day and year first above written.
Signcb, Staub anh 3Deiibrreb
, in tbt 13rc5rnct of
...5!?..:.//x_..._............ -.. ez?L
ERNEST L. NORTON
.....-- - ...?.._ .... . ........._ _ __ .._...................... 8s
MILDRED D. NORTON
State of PENNSYLVANIA
• aa.
County of CUMBERLAND
On this, the ! J day of August .1.z989 ' be/ore me,
the undersigned officer, personally appeared Ernest L. Norton and
Mildred D. Norton, his wife
known to me (or satisfactorily proven) to be the persons whose names ' are subscribed to the
within instrument, and acknowledged that they executed same or the purposes therein
contained.
IN WITNESS WHEREOF, I hereunto act Z7n and o eial seal
r'.` "•rr?+1 ;. ...
..... .. ..................._ .....---...................... ......-..
;: -{'? ;?•?L =' Title of Officer.
NOTARIAL SEN.
SETZI A.MCARt=1. NOTARY PLIMIC
3't :,??• ?':' CARL'y:EPORO,CUMSER:A'IDCOUiJTY
MYCCMMIoSiC?IJ(PIRESDEC.15.1942
.7.A. Qy4y' Member, Pennsyhariw AmdiGon of Holmes
I do hereby certify that the precise residence and cor
of the within named grantees i . -f/:3O ?C-?'7+ (Mlle
' ?itJG G ? ?i¢ /
August /O*,C:r989.
eaox C 34 :Act 460 --10< ... Y`-' v
Attorney for.......
f -
plete post office address
?POCL4e
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.
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........... ?. ..... - . ..........................
Gran s
AGREiME24mT
n
i
reement is
This A made this •:2-?- day of ?--
g
1992, between Clifford E. Norton and Kidist K. Norton, of Enola,
Pennsylvania, and Mildred D. Vorton, of Carlisle, Pennsylvania, for
and in consideration of the transfer of real estate and the
improvements thereon known as 4130 Wertzville Road, Enola,
Pennsylvania, from Mildred D. and Ernest L. Norton to Clifford and
Kidist K. Norton, recorded at Deed Book C34, page 453, in the
Cumberland County Recorder of Deeds Office.
It is understood and agreed that at such time that Clifford
or Kidist or both sill, convey or .transfer the property at 4130
Wertzville Road, Enola, after deducting the cost of any and all
improvements and taxes paid by Clifford and/or Kidist Norton during
the term of their ownership and all customary costs, the net
proceeds of the sale in excess of $1.00, 000 .00 shall be distributed
.one-half (1/2) to Robert E. Norton and one-half (1/2) to Clifford
and Kidist Norton. For purposes of calculating the sales price of
the property, any personal property included in the sale shall be
excluded.
It is further understood that if the property at 4130
Wertzville Road, Enola, is sold, conveyed or transferred for a sum
less than $100,000.00 after deducting the cost of any and all
improvements, then all of the proceeds from the transfer shall
belong solely to Clifford and Kidist Norton or their heirs,
EXHIBIT
i
• successors and assigns,
Robert E. Norton.
01
4
and no moneys shall be distributed to
It is further agreed that Clifford and Kidist may, in their
absolute discretion, ho1.d the property as long as either shall
survive and choose to occupy the subject property. This agreement
shall in no event be construed to require the sale of the property
by either Clifford or Kidist Norton or to give Robert E. Norton any
rights to approve or veto a contemplated sale.
in the event that Robert E. Norton predeceases Clifford or
Kidist Norton, then this agreement is null and void and no part
shall be given effect. This agreement shall also become null and
void upon the death of the' survivor. of either Clifford or Kidist.
This agreement supersedes and supplants all prior agreements
whether oral or written between the.parties.
Witness:
r
?.
(seal)
C 1 i zo E. Norton
f
t?.1L ?'!'''1 ?•'-- _(seal)
Kidist K. Norton
(sea 1)
Mildred D. Norton
•
ROBERT E. NORTON
PLAINTIFF
V.
KIDIST K. NORTON
DEFENDANT
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No.: 2007-729 Civil Term
CIVIL ACTION
JURY TRIAL DEMANDED
AFFIDAVIT OF KIDIST K. NORTON
I am Kidist K. Norton, and I make the within Affidavit of Kidist K. Norton based upon
my personal knowledge:
1. I am an adult individual, and I firmly believe in the obligations of an oath.
2. My deceased husband Clifford Norton and I were called back from Germany in
August of 1989 for the specific purpose of receiving the subject property from Clifford's parents
as a gift.
3. The conveyance of the property located at 4130 Wentzville Road, Enola,
Pennsylvania was an unconditional gift from Mildred Norton and Ernest Norton to Clifford and
me.
4. I did not sign the purported agreement of December 25, 2002 regarding the
property located 4130 Wentzville Road, Enola, Pennsylvania, and I challenge its authenticity.
5. I have never had the purported agreement in my possession.
6. I never saw the purported document in Clifford's possession.
e?-
SWORN and subscribed before me this \Gkday of , 2007, by Kidist
K. Norton an adult individual who provided proper identification.
TARY
My Commission expires on:
Kidist K. Norton
COMMONWEALTH OF PENNSYLVANIA
Notarial Seal
Jennifer L Karr, Notary Public
Swatara Twp., Dauphin County
My Camission E)ires March 7, 2011
Member, Pennsylvania Association of Notaries
a
9
VERIFICATION
I, Kidist K. Norton, being duly authorized to make this verification, do hereby
verify that the facts stated in the foregoing document are true and correct to the best of
my knowledge, information and belief. I understand that false statements herein are
made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to
authorities.
Date: 11 $ .iD?
?` r
By' .;?
Kidist K. Norton
i
Leslie D. Jacobson
Attorney for Defendant
The Law Offices of Leslie David Jacobson
8150 Derry Street, Ste. A
Harrisburg, Pennsylvania 17111-5260
Ph: (717) 909-5858
Fx: (717) 909-7788
ROBERT E. NORTON
PLAINTIFF
V.
KIDIST K. NORTON
DEFENDANT
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
No.: 2007-723 Civil Term
CIVIL ACTION
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
AND NOW, this 8a' day of November, 2007, I, Chad Julius, Law Clerk at the Law
LAW OFFICES OF LESLIE DAVID JACOBSON
By:
Ch-ad-Julius, L lerk
Offices of Leslie D. Jacobson, and hereby certify that on this day I served the within documents
upon the person indicated below, by depositing a true and correct copy of the same in the United
States Mail, postage prepaid, which service satisfies the requirements of the Pennsylvania Rules
of Civil Procedure:
Mr. Douglas G. Miller
Mr. Matthew A. McKnight
Irwin & McKnight
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, PA 17013-3222
14
fV D3
ROBERT E NORTON
vs
KIDISH K. NORTON
Case No. 2007-0723
r~ ,.,
c o
"t? 3 a
Statement of Intention to Proceed z ~ .~~
To the Court:
ROBERT E. NORTON
U,r
~ ~ cn
v ° -~
_~ s
intends to proceed with the above capt m~lt3r
--i N
-~ tV
Print Name MATTHEW A. McKNIGHT Sign Name
Date: OCTOBER 25 , 2010 Attorney for ROBERT E NORTON
Explanatory Comment
The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the termination of
inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit
comment.
0
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O ,
0
o
an
.-.t~'~7
D
I. Rule of civil Procedure
New Rule of Civil Procedure 230.2 has been promulgated to govern the termination of inactive cases within the
scope of the Pennsylvania Rules of Civil Procedure. The termination of these cases for inactivity was previously
governed by Rule of Judicial Administration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is
tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice, preempting
local rules.
This rule was promulgated in response to the decision of the Supreme Court in Shop v. Eagle, 551 Pa. 360,710 A.Zd
1104 (1998) in which the court held that "prejudice to the defendant as a result of delay in prosecution is required
before a case maybe dismissed pursuant to local rules implementing Rule of Judicial Administration 1901."
Rule of Judicial Administration 1901(b) has been amended to accommodate the new rule of civil procedure. The
general policy of the prompt disposition of matters set forth in subdivision (a) of that rule continues to be applicable.
II Inactive Cases
The purpose of Rule 230.2 is to eliminate inactive cases from the judicial system. The process is initiated by the
court. After giving notice of intent to terminate an action for inactivity, the course of the procedure is with the parties.
If the parties do not wish to pursue the case, they will take no action and "the Prothonotary shall enter an order as of
course terminating the matter with prejudice for failure to prosecute." If a party wishes to pursue the matter, he or she
will file a notice of intention to proceed and the action shall continue.
a. Where the action has been terminated
If the action is terminated when a party believes that it should not have been temunated, that party may proceed
under Ru1e230(d) for relief from the order of termination. An example of such an occurrence might be the termination
of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file
the notice of intention to proceed.
The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of
the entry of the order of termination on the docket, subdivision (d)(2) provides that the court must grant the petition and
reinstate the action. If the petition is filed later than the thirty-day period, subdivision (d)(3) requires that the plaintiff
must make a showing to the court that the petition was promptly filed and that there is a reasonable explanation or
legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of
termination on the docket and for the failure to file the petition within the thirty-day period under subdivision (d)(2).
B. Where the action has not been terminated
An action which has not been temunated but which continues upon the filing of a notice of intention to proceed may
have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a
common law non pros which exits independently of termination under Rule 230.2.
ROBERT E. NORTON
vs Case No. 2007 — 0723
KIDISH K. NORTON
Statement of Intention to Proceed ^'
_‹ --- -
To the Court:
r L
ROBERT E. NORTON, PLAINTIFF,
intends to proceed with the above capho*zriattkl? .
Print Name MATTHEW A. McKNIGHT Sign Name
Date:OCTOBER 21, 2013 Attorney for ROBERT E. NORTON, PLAINTIFF
Explanatory Comment
The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the termination of
inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit
comment.
I.Rule of civil Procedure
New Rule of Civil Procedure 230.2 has been promulgated to govern the termination of inactive cases within the
scope of the Pennsylvania Rules of Civil Procedure. The termination of these cases for inactivity was previously
governed by Rule of Judicial Administration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is
tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice, preempting
local rules.
This rule was promulgated in response to the decision of the Supreme Court in Shop v.Eagle,551 Pa.360,710 A.2d
1104 (1998) in which the court held that"prejudice to the defendant as a result of delay in prosecution is required
before a case may be dismissed pursuant to local rules implementing Rule of Judicial Administration 1901."
Rule of Judicial Administration 1901(b)has been amended to accommodate the new rule of civil procedure. The
general policy of the prompt disposition of matters set forth in subdivision(a)of that rule continues to be applicable.
II Inactive Cases
The purpose of Rule 230.2 is to eliminate inactive cases from the judicial system. The process is initiated by the
court. After giving notice of intent to terminate an action for inactivity,the course of the procedure is with the parties.
If the parties do not wish to pursue the case, they will take no action and"the Prothonotary shall enter an order as of
course terminating the matter with prejudice for failure to prosecute." If a party wishes to pursue the matter,he or she
will file a notice of intention to proceed and the action shall continue.
a. Where the action has been terminated
If the action is terminated when a party believes that it should not have been terminated, that party may proceed
under Rule230(d)for relief from the order of termination. An example of such an occurrence might be the termination
of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file
the notice of intention to proceed.
The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of
the entry of the order of termination on the docket,subdivision(d)(2)provides that the court must grant the petition and
reinstate the action. If the petition is filed later than the thirty-day period, subdivision(d)(3)requires that the plaintiff
must make a showing to the court that the petition was promptly filed and that there is a reasonable explanation or
legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of
termination on the docket and for the failure to file the petition within the thirty-day period under subdivision(d)(2).
B. Where the action has not been terminated
An action which has not been terminated but which continues upon the filing of a notice of intention to proceed may
have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a
common law non pros which exits independently of termination under Rule 230.2.