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Home My WebLink About97-02562 \. .l tl ~ \l ~ ~ ~ " ~ d ~ ~ ~;~ - ~-'~. ;,,~~,' .~-;:~,~-~ ,v: " i' ':;> ':. '. :!!;1 :('1~ , .,..'j .,.:i~ ';'~~ ;,c, -:''-;' ;'~it f!..} ..,~, .~;-'" .,1~ ' . H~~~ ,,;.c' i' " ~,' ~ ... ... ~ - ~ ~ 0 <') N 'I .... "l -- - ... *~ o ;:; ~ ~- !l ~ ' en Qj.2 ~ Ii c1 ~c ld ~ ~ ::.f2\' <l> ~ ~~ € cil ~ ~ '", 0:; g , ~ Z.o ... :::: Il)]! -I!! ~ Il)-c .8 -0 0 U E ... 0 ~ .s::: U .. N .- - ... " t, he lefi the Spencer rcsidence, At thc time of his departure in February 1996, Hocker's baqnk statements and all financial records were taken by him along with his personal property, Thc original Summons docketed to this action through counsel, John Weslcy Weigel, llI, Esquire, was filed on May 14, 1997. Being fully aware of his claim, and having failed to raise it in a timely manner, Plaintil1's claim for the funds he claims were converted should be time-barred by the statutc of limitations, Defendant, Mary Jane Spenccr had, at her own cxpense, rented a storage unit in Shippensburg, and had paid for the packing and moving of many items of personal property to the storage unit. Thcse items included many documentary records including Hocker's bank statements, tax returns and other records as well as furniture and personal property items belonging to Plaintiff. Plaintifi' was given thc information concerning thc location ofthc storage unit, thc receipt for the storage unit, and the key for thc storagc unit, so that hc could procure his personal property and records when he was rcleascd from Cumberland County Prison on his Driving Under thc Influencc charges, 1997, II. LEGAL ISSUES The legal issue facing thc Court is the statutc oflimitations claim with rcspect to these checks and thc claimed conversion. Plaintifi. is claiming no knowledge ofthe chccks or transfers until afier he vacated the premises in February 1996. Plaintiff must also be ablc to show thai the transfers were madc for the sole benefit of Dcfendant and to his detrimcnt to show a conversion, III. WITNESSES Defendant, Mary Jane Spencer, 203 Log Cabin Road, Newville, PA 17241 A. Joseph Spencer, 203 Log Cabin Road, Newvillc, I' A 17241 Records Custodian, Orrstown Bank Page 2 of Five Mary H, McCrea, 70 McCrea Road, Newville, I'A Plaintiff, John H, Hockcr, as on cross examination, Thc Defendanl will teslify concerning the funds transferred, thc knowledgc of Hocker, her authority and the direction and control Hocker exercised over financial decisions made both personally and for the Windsor Ridgc Homes busincss venturc. Shc will also testify concerning the fact that she docs not havc any of thc financial records for Hockcr's account and in faclncver separated any checks from statements but thai Hocker may have done that as aprt of the IRS audit of the busincss and personal accounls which was donc ptior to thc timc l'Iocker claims to have "discovered" thesc financial rccords, those ilems from her property prior to February 1996, A, Joseph Spencer will testify concerning the fact that he heard his mqther, Defcndanl Spcncer and PlaintilT Hocker discussing financial matters and that Hockcr was aware ofthc monies coming in to the various accounts and the expenses being paid both business and personal.. Thc Orrstown Bank records custodian will verify thc deposits into thc accounts and the paymcnts out of thc accounts as well as payment of the homc equity loan, Bank records will also show the statements provided to Hocker, IV. EXIIIBlTS All financial documents concerning contract construction for the timc period of thc checks listed in the complaint, thc bank statements and cancelled checks complaincd of as well as for Defendant's account and the bills paid, the outstanding invoices for business expenses and the other documcntation of loans and repayments between Plaintiff and Page 3 of Five The present suit is controlled by the two-year statute of limitations set forth in 42 Pa.C.S. section 5524, which provides in pcrtinent part: Two year limitation The following actions and proceedings must be commenced within two years: ................. (3) An action for taking, detaining or injuring personal property, including actions for specific recovery thereo f 42 Pa. C.S. section 5524(3). Bedonr v. Marino. 435 Pa. Super 417,646 A.2d 573 (Pa. Super. 1994). This two year period begins to run "as soon as the right to institute and maintain suit arises; lack of knowledge, mistake or misunderstanding do not toll the running of the statute oflirnitations." Pocono Intemationnl Raceway v. Pocono Produce. 503 Pa. 80, 84, 468 A.2d 468, 471 (1983). Under Pennsylvania law, there exist two doctrines which will toll the statute limitations. One is fraudulcnt concealment by defendant so as to prevent the plaintiff from acquiring infonnation about his cause of action. To raise the doctrine offraudulent concealment, the plaintilrmust plead it. In this case, neither in his complaint nor in his reply to new matter has the plaintiff averred any facts or circumstances to demonstrate fraudulent concealment on the part of the defendant. Hocker avers in his complaint, "6. At some time during the spring of 1996, after Plaintilrhad ceased residing with Defendant, he discovered a number of cancelled checks written out by Defendant in 1991...... And, in his reply to new matter, Hocker avers, "12. Denied. On the contrary, Plaintill's cause of action accrued upon his discovery ofthe cancelled checks in 1996. Before he had moved out of Defendant's residence in February, 1996, Defendant had maintained exclusive control over all documentation associated with Plaintill's checking account. Until February, -2- 1996, Plaintiff could not rcasonably have discovered Defendant's inappropriate conversion offunds." At best, Hocker's averments to explain away his late filing of this lawsuit show silence or nondiselosure on the part of Spencer. This is not enough to toll the statute of limitations. In order to toll the statute of limitations, it is necessary that an adversary commit some affinnative independent act ofeonecalment; mere silence or non-disclosure is not enough to trigger estoppel. Krevitz v. City of Philadelphia, 167 Pa.Cmwlth. 412, 648 A.2d 353 (1994). The second doctrine which will toll the statute of limitations is the diseovery rule. Under the discovery rule, plaintiff must allege and prove facts which show that he made reasonable efforts to protect his interests and which explain why, despite the application of reasonable diligence, he was unable to diseover the operative facts for his cause of action sooner than he did. Bickell v. Stein. 291 Pa. Super 145,435 A.2d 610 (Pa. Super. 1981). When Hocker's averments are examined and analyzed, one sees that he does not eontend that Spencer denied him access to his checkbook, or to his account records. To the contrary, Hocker and Spencer lived together during the relevanttimeframe between 1991 and 1996. They worked together in Spencer's construction company, for which Hocker performed labor. One must conclude that Hocker made no efforts to protect his interests, let alone adhering to a standard of reasonable diligence. between 1991 and 1996. There is nothing in the pleadings, there is nothing in the record of this case to prevent the court from finding as a matter oflaw that Hocker's cause of action is barred by the applicable statute oflirnitations, and should be dismissed. Recctfu1J>)JJbmitted orJlfA J. {to P^,t"", Sally J. Win~r. Attorney for Defendant -3- new---and somewhat novelmtheory about the confidential rclationship which cxisted between himsclf and dcfcndant. From thc tcstimony and demcanor of plaintifi' onthc witncss stand, it is fairly clear that plaintiff is just aboutthc last pcrson on carth who would claim that a confidcntial rclationship cxistcd bctwccn himsclf and dcfendant. A confidential rclationship appears whcn thc circumstanccs makc it ccrtain that thc partics do not dcal on equaltcrms, but, on the one side therc is ovcrmastering inlluence, or, on thc other, weakness, dependence or trust, justifiably reposcd. Hockcr would ncvcr agrec that Spcnccr had an ovcrmastcring inlluence on him, nor would hc agrcc that hc was in a position of wcakncss, dcpcndencc or trust. Hocker's tcstimony was that Spencer was supposcd to write the chccks he told her to write, to the entities he named, and for the amounts he dcsignatcd. Spencer's situation vis a vis the checking account, according to Hocker, was more that of a bookkeeper than that of a trusted financial advisor. Hocker's testimony was that he carried the check book with him. It is a reasonable assumption that the check register was with the check book. The foregoing suggests that Hocker's alleged failure to discover the "improper" checks written by Spencer within the limitations period is evidence that he applied no diligence whatsoever to the matter. Either the checks in question were noted in the check registcr (in which case the checks were there with number, payee and amount for anyone carrying the checkbook to see), or else Spencer failed to record the checks in the check register (in which case the break in numerical sequence in the check register would put any normal individual on notice that something might be amiss with the account). Either way, Hocker had ample means---or ample reason---to discover what Spencer had been doing between February 27, 1991, and May 20,1991, thc inclusive dates for the scries of checks Hocker says were to unauthorized persons and for unauthorized amounts. He had ample means---or ample -2- he left the Spencer residence. At the time of his departure in February 1996, Hocker's baqnk statements and all financial records were taken by him along with his personal property. The original Summons docketcd to this action through counsel, John Wesley Weigel, III, Esquire, was filcd on May 14, 1997. Being fully aware of his claim, and having failed to raise it in a timely manner, Plaintill's claim for the funds he claims were converted should be time-barred by the statute of limitations. Defendant, Mary Jane Spencer had, at her own expense, rented a storage unit in Shippensburg, and had paid for the packing and moving of many items of personal property to the storage unit. These items included many documentary records including Hocker's bank statements, tax returns and other records as well as furniture and personal property items belonging to PlaintilT. Plaintiff was given the information conccming the location ofthe storage unit, the receipt for the storage unit, and the key for the storage unit, so that he could procure his personal propcrty and records when he was released from Cumberland County Prison on his Driving Under the Inlluence charges. 1997, II. LEGAL ISSUES The legal issue facing the Court is the statute oflimitations claim with respect to these checks and the claimed conversion. Plaintiff is claiming no knowledge of the checks or transfers until after he vacatcd the prcmises in February 1996. Plaintiff must also be able to show that the transfers were made for the sole benefit of Defendant and to his detriment to show a conversion. Ill. WITNESSES Defendant, Mary Jane Spencer, 203 Log Cabin Road, Newville, PA 17241 A. Joseph Spenccr, 203 Log Cabin Road, Newville, P A 17241 Records Custodian, Orrstown Bank Page 2 of Five Mary H. McCrea, 70 McCrea Road, Ncwville, PA Plaintiff, John H. Hocker, as on cross examination. The Defendant will tcstify conccrning the funds transferred, the knowledge of Hocker, her authority and thc direction and control Hockcr excrcised over financial decisions made both pcrsonally and for the Windsor Ridge Homcs business venture. She will also testilY concerning thc fact that she docs not havc any of the financial records for Hocker's account and in fact never scparated any chccks from statements but that Hocker may have done that as aprt of the IRS audit of the busincss and pcrsonal accounts which was done ptior to thc timc Hocker claims to have "discovered" thesc financial records. those items from her propcrty prior to February 1996. A. Joseph Spencer will testilY concerning the fact that he heard his mqther, Defendant Spencer and Plaintiff Hocker discussing financial mailers and that Hockcr was aware of the monies coming in to the various accounts and thc expcnses being paid both business and personal.. The Orrstown Bank records custodian will verify the deposits into the accounts and the payments out of the accounts as well as paymcnt ofthc home equity loan. Bank records will also show thc statemcnts providcd to Hocker. IV. EXIIIRITS All financial documents conccrning contract construction for the time pcriod of thc checks listcd in thc complaint, the bank statcmcnts and cancclled checks complained of as well as for Dcfendant's account and the bills paid, the outstanding invoices for business expenscs and the othcr documcntation of loans and rcpaymcnts bctwecn Plaintiff and Page 3 of Five 11 - 15 16 - 20 21 - 23 25 - 28 24 / 29;- 30 31'- 32 33 34 - 35 36 - 39 40 41 - 44 Cumberland County Protl.lOnotary's Office Civil Case Inqulry 1997-02562 HOCKER JOHN H (vs) SPENCER MARY JANE PYS510 Page 1 Reference No..: \ Case Type.....: WRIT OF SUMMONS Judgment. . . . . . : .00 Judge Assigned: OLER J WESLEY JR Dispotled Desc.: ------------ Case Comments ------------- Filed.. .. .. .. : Time. ........: Execution Date Jury Trial. . . . Disposed Date. Higher Crt 1.: Higher Crt 2.: 5/14/1997 U:32 0/00/0000 0/00/0000 277 MDA 2001 ........*********...**..**................**.......**.***.*****.**.****.*.*.*... General Index Attorney Info HOCKER JOHN H PLAINTI FF ~IEIGEL JOHN WESLEY II I SPENCER MARY JANE DEFENDANT WINDER SALLY J 203 LOG CABIN ROAD SHIPPENSBURG PA 17257 *.*.**...****.******...*.*.*****..*....*..**.*..*.*.**...**............*****..** * Date Entries * **.........*......**.......*******...*..........**....****..**.*....**.......... 5/14/1997 5/14/1997 5/19/1997 5 7/23/1997 7/24/1997 6/08/1998 7/06/1998 7/27/1998 9/23/1998 9/25/1998 5/03/2000 6/14/2000 6/22/2000 8/24/2000 9/07/2000 9/08/2000 9/11/2000 45 9/11/2000 46' 9/15/2000 - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - PRAECIPE FOR WRIT OF SUMMONS IN CIVIL ACTION-WRIT OF SUMMONS ISSUED ------------------------------------------------------------------- PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS ------------------------------------------------------------------- SHERIFF'S RETURN FILED Litigant.: SPENCER MARY JANE SERVED : 6/12/97 WRIT OF SUMMONS Costs....: $20.00 Pd By: JOHN W. WEIGEL III 05/19/1997 ------------------------------------------------------------------- MOTION TO COMPEL DISCOVERY ------------------------------------------------------------------- ORDER - DATED 7/24/97 - IN RE MOTION TO COMPEL DISCOVERY - RULE ISSUED UPON DEFENDANT RETURNABLE 20 DAYS AFTER SERVICE - BY J WESLEY OLER JR J - COPIES MAILED 7/25/97 ------------------------------------------------------------------- COMPLAINT ------------------------------------------------------------------- DEFENDANT'S ANSWER AND NEW MATTER TO PLAINTIFF'S COMPLAINT ------------------------------------------------------------------- REPLY TO NEW MATTER ------------------------------------------------------------------- MOTION TO COMPEL DISCOVERY ------------------------------------------------------------------- ORDER 9/24/98 A RULE BE ISSUED UPON DEFENDANT TO SHOW CAUSE WHY PLAINTIFF'S MOTION SHOULD NOT BE GRANTED RULE RETURNABLE 20 DAYS FROM SERVICE ay ~HE COURT J WESLEY OLER JR JUDGE COPIES MAILED 9/28/98 ------------------------------------------------------------------- PRAECIPE FOR LISTING CASE FOR TRIAL BY KARL E ROMINGER ------------------------------------------------------------------- PRAECIPE FOR LISTING CASE FOR TRIAL BY KARL E ROMINGER ESQ ------------------------------------------------------------------- ORDER OF COURT - DATED 6/16/00 - CASE IS STRICKE FROM JULY TRIAL TERM BY THE COURT KEVIN A HESS J COPIES MAILED 6/21/00 ------------------------------------------------------------------- ORDER - DATED 8/23/00 - IN RE PRETRIAL CONFERENCE - BY J WESLEY OLER JR J ------------------------------------------------------------------- DEFENDANT'S PETITION TO STRIKE ACTION FROM JURY TRIAL LIST ------------------------------------------------------------------- ORDER OF COURT - DATED 9/7/00 - RULE IS ENTERED TO SHOW CAUSE - RULE RETURNABLE AT NOON 9/11/00 WITH A COpy TO CHAMBERS - BY THE COURT EDGAR B BAYLEY J COPIES MAILED 9/8/00 ------------------------------------------------------------------- PLAINTIFF'S ANSWER TO DEFENDANTS PETITION TO STRIKE ACTION IN JURY TRIAL LIST ------------------------------------------------------------------- ORDER OF COURT - DATED 9/11/00 - IN RE DEFTS PETITION TO STRIKE ACTION FROM JURY TRIAL LIST - DENIED - BY THE COURT EDGAR B BAYLEY J COPIES MAILED 9/11/00 ------------------------------------------------------------------- ORDER OF COURT - DATED 9/13/00 - CASE IS CONTINUED TO TRIAL TERM 10/30/00 - PROTHONOTARY IS DIRECTED TO RELIST THIS CASE FOR THAT Cumbel"land Coullty P,'othonotary's Office Civil Case Inquiry 1991-02562 1I0CKER JOliN II (Vll) SPENCER ~lARY JANE PYS510 Page 2 11/09/2000 11/17/2000 Filed........: 5/14/1991 Time.........: 11:32 Executlon Date 0/00/0000 Jury T"ial.... Disposed Date. 0/00/0000 lIighe" Cn I.: 277 MDA 2001 Higher Crt: 2.: TRIAL TERM - BY J WESLEY OLER JR J - COPIES MAILED 9715/00 .. w _ A _ . _ _ _ _ _ _ _ _ _ w . . .. _ _ 4 _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ . _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ 10/31/2000 ORDER Or COURT - DATED 10/30/00 - IN RE MOTION FOR DISMISSAl. - IT APPEARING TO THE COURT '1'111\'1' TilE PLFF DID NOT USE DUE DILIGENCE IN DISCOVERING TilE PUPORTED ~lISAPPROPRIATION OF FUNDS THE MOTION FOR DISMI SSAL IS GRANTED . BY TilE COURT EmlARD E GUIDO J COPIES MAILED 10/31/00 - -- -- - - - - - - - ---- -- -- - - -- - - _.- - - - - - --- ------ -- - -- -- - - -- ------- -- - --- MOTION FOR A NEI'I TRIAL BY KARL E ROMINGER ATTY FOR PLFF' - - - - - - - - - - - - - - - - - - - - - - - - - - - ." - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ORDER OF COURT - DATED 11/17/00 - IN RE MOTION FOR A NEvi TRtAL - PLFF IS GIVEN 20 DAYS TO FILl, A BRIEF IN SUPPORT OF HIS MOTION FOR A NEI'/ TRIAL - DEFT IS GIVEN 20 DAYS THEREAFTER TO FILE A {EPLY BRIEF - MATTER IS SCHEDULED FOR ARGUMENT IN CHAMBERS ON 1 9/01 AT 8: 30 ^r~ - BY THE COURT EOI'IARD E GUIDO J COPIES MAILED 11/ 7/00 ___ ___ - - - ___ ___ - - - __ __ - __ __ - - - __ ___________ _____ - - __ a_ __a _ ___a __ ___ 1/10/2001 ORDER OF COURT - DATED 1/9/01 - PLAINTIFF'S MOTION FOR NEW TRIAL IS DENIED - BY THE COURT EDHAlm E GUIDO J COPIES MAILED 1/10/01 - -- - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -- - - - -- - - - - - - - - - - -- -- - - - --- - - --- 2/07/2001 NOTICE OF APPEAL TO SUPERIOR COURT PENNSYLVANIA FROM THE COURT ORDER 1/9/01 - BY KARL E ROMINGER ESQ FOR PLFF - - --- - - - -. --. - -. - --. --- - --- - - - -- - - - -.. -- - -- - - - - -. -... - - - - - ---- -- --- 2/08/2001 ORDER OF COURT - DATED 2/7/01 - IN RE PLFFS COUNSEL IS DIRECTED TO FILE A CONCISE STATEMENT OF MATTER COMPLAINED OF ON APPEAL WITHIN 14 DAYS OF TODAYS DATE IN ACCORDANCE WITH RULE OF APPELLATE PROC;EDURE 1925 B - BY TilE COURT EDWARD E GUIDO J COPIES ~1AILED 2/8/01 ------..- -. ----. .-- -- _e. - - _. - ___ ._.___. ______ - -- ----- -------------- 2/15/2001 BRIEF STATEMENT OF NATTERS CO~lPLAINTED OF ON APPEAL - BY KARL E ROMINGER ESQ FOR PLFF --- -. - -- - --. - - - - - - - - -.. - - - - -. - -. - - ------- --- - - - - - - -- - - -- --- --- -- -.- SUPERIOR COURT OF PA NOTICE OF APPEAL DOCKETING TO II 277 MDA 2001 - -- -- - - - - - - - - - - - - --. - - - - - - - - - - - -- -- ------ --- - -- - -- -- - - -- -- ----- - -.- TRANSCRIPT FILED PROC;EEDINGS HELD IN CUMBERLAND COUNTY COURTHOUSE CARLISLE PA ON 10/30/01 IN CR 5 - BY THE COURT EDWARD E GUIDO J --- - - --- - -- - - - - - - - - - - - -- - - - - - - - - -- - -- -- ------ - - - - - - - -- -- ------- - - -- 4/05/2001 OPINION AND ORDER - DATED 4/4/01 - IN RE OPINION PURSUANT TO PA R C P 1925 - BY THE COURT EDHARD E GUIDO J COPIES MAILED 4/5/01 - - - - - . - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - MISCELLI\NFXXJS PAPERS ................................................................................ . Escrow Information . . Fees & Debits Bea Bal Pvmts/Adi End Bal * ...*...*.**..*..................t........~......l.................*............. R~.'rel'(!nCe No..: \ r,.we Type. . . . .: \.m I T OF SU~1r.l0NS .JudqrnenL. . . . . . :. .00 J'KkJc Ansigned: CLEN J WESLEY JR D 1 n[)oHed Dcsc.: - . . - - - - - - - - - C(l!J(~ Comments - - ~ - - . . . 47 54 62 - 65 67 129 2/26/2001 3/22/2001 136 . ..," vlRIT OF SUMMONS TAX ON WRIT SETTLEMENT JCP FEE APPEAL 35.00 35.00 .50 .50 5.00 5.00 5.00 5.00 30.00 30.00 ------ ------- - - - - - - - ---- 75.50 75.50 .00 .00 .00 .00 .00 ----.------- .00 ................................................**....................*..*...... . End of Case I nformat ion . ............................................**.................................. >. r:, ',- C~ t:.: ,. ;- ~ .. -. .~ UJr ::: .~ ~ ( ,- , . , fe' ". lI_" .:.j C~:. .- c:.'': j-,: ~'1 l~ ' .. l~ .-, ;'.1 ( I , I. ..::... ,- 0" .. ...... ;, l:i C' D . .' .. , JOlIN II. HOCKER, Plaintiff : IN THE COURT OR COMMON PLEAS OF : CUMBERLAND COUNTY. PENNSYLVANIA : CIVIL ACTION - LAW vs. MARY JANE SPENCER Defcndunt : NO. 97-2562 CIVIL TERM BRIEF STATEMENT OF MA TIERS COMPLAINED OF ON APPEAL AND NOW, comes John Hocker, by and through his privately retaincd counsel, Karl E. Rominger, Esquire and states that hc will raise the following issue on appcal: I. Was the Defcndant estoppcd from raising thc defense ofthc Statutc of Limitations because ofthc close and confidcntial relationship existing betwcen the Plaintiff and Defcndant at the time of the allegcd conversions? Respectfully submitted, 0 L" ~.~; -" - : ~.r I . ) .. ; (; .. , - .'l.' . . . ." :.') , - j - '.- .") .. Proposed Answer: Yes .""") c . ___ o. Karl E. Romingcr, Esquire 155 South Hanovcr Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID # 81924 Allomcy for Plaintiff Date: February 14,2001 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Winder? MS. WINDER: No, Your Honor. THE COURT: Okay, Any redirect? MR, ROMINGER: I do have a bit, Your Honor. REDIRECT EXAMINATION BY MR. ROMINGER: 1 2 3 4 5 6 7 Q John, you said that you questioned her about 8 this money during the time of the disturbance. That's the 9 time you moved out, correct? A Well, it was before that. Q Around 1996 -- 1995, 1996 when you were moving out, that's when the disturbance was, correct? A Yeah. Q Now, you carried your checkbook around with you to write checks, did you not? A Yes. Q That doesn't mean that you kept track of the balance, does it? A No, I never balanced it. Q Who balanced your checkbook and rectified the banking statements? A Mary Jane. Q We heard a little bit about the Hobbig project. Hobbig You were the subcontractor in that, in the 52 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I guess I would be called subcontractor because I didn't have a contract with them. Q So the money should have flowed from Windsor Ridge Homes to John Hocker, not from John Hocker to Windsor Ridge Homes, correct? A Yeah. MR. ROMINGER: I have no follow-up. THE COURT: Ms. Windor. And I apologize. I cut you off. If you were about to question him on whether or not the sale of the property took place in '91, I'll let you follow through on that, if he recalls. RECROSS EXAMINATION BY MS. WINDER: Q Mr. Hocker, do you recall any other events which surrounded the time period of your sale of that cabin property? A Yeah, I was in the process of getting a divorce. Q Was it shortly after or before the time of the divorce decree that you sold the cabin property? A I couldn't sell it until after the decree came down. Q Okay. divorce decree? Do you recall the date of your A I think it was in '95 or something. 53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (Whereupon, Defendant's Exhibit 6 was marked for identification.) BY MS. WINDER: Q Mr. Hocker, I'm going to show you what I've had marked for identification as Defendant's Exhibit Number 6, I'll ask you if you can recognize that as a copy of a complaint filed in this lawsuit. THE COURT: Well, do we agree as to when the divorce decree was entered? Is that what you're getting at? Is that an allegation in the complaint? MS. WINDER: No, it is not an allegation in the complaint, Your Honor. THE COURT: Okay. I'm just trying to speed things up if we can. Is it at issue as to when the divorce decree was entered? MR. ROMINGER: I don't think it is. THE COURT: Is that what you're trying to get at? MS. WINDER: No, Your Honor, I'm not. THE COURT: Okay. Well, we know it's the complaint that was filed. What do you want to ask him with regard to that? BY MS. WINDER: Q Mr. Hocker, I want you to read paragraph 4 of that complaint, and I want you to read it for the 54 1 jurors. 2 A During the time they resided together 3 Plaintiff assisted Defendant in establishing a construction 4 business, Windsor Ridge Homes. As part of this assistance 5 Plaintiff authorizes Defendant to write checks from his 6 account to pay for Windsor Ridge Homes payroll and taxes. 7 Plaintiff also formally xxx for Windsor Ridge Homes. 8 MS, WINDER: Okay. I have no other 9 questions. 10 BY THE COURT: 11 Q Okay. The audit of Hocker Construction, 12 the IRS audit that they were talking about, did you review 13 your records and attend that audit? 14 A Did I do what? 15 Q You got notice of an IRS audit for Hocker 16 Homes for 1991; is that correct? 17 18 19 20 21 22 23 24 25 A Yes. Q Okay. Did you go to that audit? A Yes, I was at it. Q Okay. And did you take along your records? A Yes. Q Okay. Did you review those records? A With them, Q With the IRS? A Yes. 55 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Mr. Hocker, did you take your bank statements and your check registers to that audit? A I guess I took something along. Q Did they ask you to bring your bank records for the year 1991? A I don't recall, Q But that was the year that was being audited, was it not? A I believe it was. MS. WINDER: I have no other questions. THE COURT: Thank you, sir. You may step You're done. You may step down. Any other down. witnesses, Mr. Rominger? MR. ROMINGER: I have none, Your Honor. THE COURT: Okay. Are you moving for the admission of Exhibit Number 1? MR. ROMINGER: I am. THE COURT: It is admitted. Do you then rest? MR. ROMINGER: I do, Your Honor. THE COURT: Okay. Now is a good time to break for lunch, ladies and gentlemen, and they did fix the clock. Isn't that amazing? We can thank Harold for that. Okay. Keep an open mind. Do not discuss the case with anybody over the lunch hour, and we'll see you back about 57 .. ~ ... \.l - ~ ~ ~ ~ · t .., ... ::! ig - - ... ~ ~- i~ M CI) ~ Qi.2 ~i 'I > c 00 ~ ~~ o c Ii! == l ~, ~ :gC € Cl i:! ~ .~ c51~ ~Ht ~ :g~ -I!! , -0 .8 l'1 u E ill o . .c - i u ~ ...: r: , - (') -j.'- c- F- . ('.' -r . N .:-. C1 " :-., - ~ "".- :J::-: . :1:';", .- ~ . -.:-j rE. ...... ~. . ...... (iJ !-.;,; ~ ..... ........ ,.. "',';) =;~ ~:.~('- 8 8 ~ ~- " :) , , .:.;:.) U ~ QJ.. ~ 155 South Hanover Street Carlisle, Pel1.nsylvOQla 17013 J?I-lOI/i""/rr <'i;((ll '@jP'f'J U 717.241.6010 . 800.7)..0490 ~ FAA: 717.2...6878 wwwromngerlaw.com . kJw@lomIngef1oW,com .' .)h,1) ..'.1.1 VI, North Main Street Chambersburg, Pennsylvania 17201 " . 6(':lr~ .,-.-<.,.~".. ~ ;'\ '~i.~, -:.-_<.- '4;;"'~' ." --~, ,-_. -,,' ".;-. ....,.._"' -~-' . . ,-,....., '-','- ._~ -.;1;/ .,. <'- ...,....,..-. ,- I, FACTS At some time duringthc spring of 1996, after thc Plaintin'had ccascd rcsiding with the Dcfendant, he discovcred a numbcr of cancelled checks wrillcn out by the Defcndant in 1991. The Plaintiff had rclicd onthc financial judgmcnt ofthc Plainitiff during their relationship to writc checks for his busincss's payroll and taxcs. Thc Plaintin'discovcrcd after their confidcntial relationship concluded that the chccks wcrc to partics and for amounts not authorized by the Plaintin: By writing thcsc chccks, the Dcfendant unlawfully convertcd the Plaintill's moncy to her own use and conccalcd this iIIcgal activity. A lawsuit based upon convcrsion was brought approximately four ycars al1cr the allcgcd conversions took placc, but less than two ycars after the Plaintiff discovercd thc convcrsions, bascd onthc thcory that the statute of limitations was toll cd duc to thc discovcry date. Plaintiff allegcs and thcrclorc avcrs, that hc will prove the dcfendant willfully convertcd approximately $50, 000 in his funds to hcr own personal use. Plaintiffbclicvcs that Defendant will allempt to justify the same, claiming shc was authorized to make said transfers. Plaintiffbelicvcs that once Plaintiff has shown that Dcfcndant madc said transfers, the burdcn of persuasion shil'ls to Dcfcndantto show that shc was authorizcd to do so. Plaintiff filed a motion for a ncw trial following the prcvious disposition of the court. II, OllESTlONS PRESENTED I. Whether the PlaintilT cxercised duc diligencc within his closc and confidential "live in lover" relationship with Dcfcndant in rclerencc to discovcring Defendant's willful conversions of approximately $50, 000 of Plain tilTs funds? an actionable injury has becn sustaincd so that pcoplc in that class havc csscntially thc salnc rights as thosc who suffcr an immcdiately ascertainable injury." /d. The diseovery rule is aplJlicable when there is an inability to ascertllin the fllct IIll1t an injury hils hcen sustained despite the exercise of due dilil!.ence. /d. The stlltute of limitations does not begin to run until the Illllintiff hils discovered his iniurv, or, in the exercise of rellsonllhle dilil!.ence, should have discovercd his iniurv. Catl1eart v. KI!I!I/(! Imlll.wrwllll.l'lIlatill/l, 324 Pa.Super. 123, 135-36,471 A,2d 493, 500 (1984). Thc Plaintiff exercised duc diligcncc in this casc. Considering that Plaintiff Hocker was a part of an intimate relationship bctwccn two pcoplc, who livcd together, hc was under no obligation to suspcct Dcfcndant Spenccr of any wrong doing. In fact, in such a rclationship, a reasonable person would likely givc their matc cvcry bcncfit ofthc doubt rathcr than suspect the individual of willful convcrsion of his own funds. It is c1car that the Plaintiff excrciscd due diligence in discovering the chccks. Oncc the intimatc rclationship concludcd, and the Defendant's veilofdcception was rClnovcd, thc PlaintifTwas ablc to discovcr the unlawful conversions. The Defendant had intentionally concealed hcr unlawful conversion ofthc Plaintiff's funds during thcir relationship. The Plaintiff excrciscd duc diligcncc in discovcring the conversions atthc carlicst possiblc timc. A court cannot rcquirc a PlaintilTto know and act on things willfully conccalcd from him or hcr. Rather, a court should rcquirc a PlaintilTto act within the statute of limitations from thc pointthc Plaintiff discovercd thc act cstablishing the cause of action. PlaintitT excrcised his due diligence in discovcring thc convcrsion. Ilc discovcrcd thc convcrsion in thc spring of 1996. He brought his claim within two ycars. Thc Plaintill' is thereforc cntitlcd to a new trial. The law in IX) -~ III . M J .. rl B " 0 (\/ ~I~ '" , ~, ~ '" s -:1 ':r IX) ~! .. .. '-...1 ~ '" ~ Gj ~ ~ a: 0 ... U ..... <<( a: ~ ~, " ... " ~ Z '~ . 0 = U ,;, nJ Ii 0_ oJ w <rt ~ .,.,. .z :.= 0... ~ U 0:- S ." .... .. O"'z ...::l d cr !-< :z: ~a. ~:. :i~u~ ~: ~ 0 Z.o..... . <: .. "'0- j ;~ :Z:;:-l~ O:r:~ .,0. z . .. j - Ul '" '" \.. ~ 0 ""- .... 111 (:) '" .. r-. " - ... '" w . .., .. i=i5 .. O;~ '" ~~ ">/ 0 :'.0 2~ l.IOJrA""~ ~nOZ92004U3 O~1~lSU~6 ~(i?~t:r ~...:..,~~::.:,~: Ail '91' 03 e=..~ 01. -.sl . J'~ :.ulltK ts ~'. 0310-0004-0 3-4 Iff 91 29 3-4 ~.:"1:-..- ....::cr f~\I.~.'''''''~J'i..-._.:;:"'''I.(' ...:,:...r...t.t'ol,.;.....=....l_~.' J ' ~:;: ~.~ , "', \,1 '_. I P:'l "-(1"'1 ':-l["l"':"'~:;ll");-::' .' .1._.. .j.' .t, .....1,1 'tit ~"'I~"": I.J 1:. '_'.' _. _~-)'l'.'; ::j.. " \, .,. it., {. -t " ~." _ ~'::.: 01.: ,.1 ' ,~ '" ....; 0 ~ : -: ~ ....:.......;t -004. _).- p' ; 0;1J.l~~':i 'i : ,CD ~ ~ ;_~ ~ ;.. . . .~ j.. ,,-, : - ~ ~l .., 0 (') ! ':~ "r' P' e "00 1....-8...---c: , .,.., ~ . Loolf;, ~~ ~ ~ mo .... '~:CR8'J1HtSE~5 .' .\hr'....' ..1......, . .~i,.;,,\,.liIL ;"~1., ',;\ ; .: iJi :<f.\WlUi:,lP.E. PA 03'Jl3alSBS635 03(149.1 >0: (0 3u8 OT81D1G 3G491~371 n~'1.1 '~t ~ :.'~(I~':,', .' ~ .. .. I I ,I '",_.,. ... ,.'. :.0 ,. , .,' .'.-' $JOODD.DDAl ::z: .,...., .~ .. ...;1 .~ ".., '" ".! ,I, ) ,', .' :-Jl:,: ;~. . '.oN ...~'-. . #:""\ .G...'-I x ; d t E ~; -;; ~ ~ {- I" :..J ~/~ '. -S ..., b~.. !:'c::': .' -, , . , ;. ..... w. ..., ~ c. ,., 'n l . .., 1".~m~J m=::~:~:;~~-~:~m~::;;:=x HI I I! PH 717.716.6().l7 2189 203 lOG CABIN ROAD 6O.1!lt13 03 , NEWVillE. PA 17241 :;Jfl/lleu; "fL _..313 .. ~ l'A\Illllll O({':>1'Dwl~ (~",).,. 1$ 1)1.;).1 i~ OIUJl:KOt- - - . . .' !I'E IT,,!,,\.. ttU,A\1tV...(.: ,a~LUt.:-, /i}:Mr. /"t'!-' tlJ..'/~v----'" '-'IIA"' "j -~, b>< - _...~ ....HWM."'...L"-lp... I Q~,lt~~. jlll (\... Ie Il.dc,..xU%... h '-<:~ !..:~. roo -"on ~ , ~ , r:n ~ r ,0 1 n C II ~u' " ,1'00' 00 ~? ~ 2 ~,I' JOHN H. HOCKER. CONTRACTOR 2185 PH 717.716.6().l7 203 LOG CABIN ROAD I 00-l!-o03 OJ . NEWVillE. PA 17241 .J1 /) Ii t./ .!1J 3i3 Ill' /)'{' (J J J"._ o' f ~~br.~iM~~-"Y\'Z {llc.I:-- :, _ . I $, /') 3. ~ " ig 6-10.. (v.(.\~t~L'::~L.'~Li-~LJ~~~~~ ~~\.J...~~Jlt.~. .... :'T>.1!.1AKS um ~ (7- fJ ,---- I~ Q~\Y!':'{!~~. ":2{i('('~~ ~',~,-u roo _.0,..." ~,..,...,r.o ,n n,' -../,"0000' ~535q,l' ~"Il " JOHN H. HOCKER. CONTRACTOR " I "I PH 717.716.6().l7 203 lOG CABIN nOAD NEWVillE. PA 17241 K A...-u1 0, ~ .'J.-J..1(__ ".JL !~ ~~br~lN[ U;ItJt.d..4-o1. ~tI~_. J $ /':1: MiJ.<.l?J !~ ~''''_ ~/J'~t1.'v~ _.~~. ._..__I"lIA" m O~ BANK () ~ ,..."..~, ""''''''''''' ma. 8./Z1U -cd 1t-UA... L~~,.L~~~;Er3.~;2.,._",~i<~",.~~:. 2 ~ 1 ,'IOO~OOOOOII' 2156 6O.I!>0303 JiJ L JOHN H. HOCKER, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION - LAW MARY JANE SPENCER : 97-2562 Civil Ternl COMPLAINT AND NOW COMES Plaintiff John H. Hocker, by his attorney, John Wesley Wcigell\l, to file this complaint, alleging as follows: I. Plaintiff John H. Hocker is an adult individual residing at 520 Boxwood Lane, Carlisle, Cumberland County, Pennsylvania. 2. Defendant Mary Jane Spencer is an adult individual residing at 203 Log Cabin Road, Newvillc, Cumberland County, Pennsylvania. 3. Plaintiff and Defendant rcsided together from about March, 1987 until February 21, 1996. 4. During the time they resided together, Plaintiff assisted Defendant in establishing a construction business, Windsor Ridge Homes. As part of this assistance, Plaintiff authorized Defendant to write checks from his account to pay for Windsor Ridge Homes' payroll and taxes. Plaintiff also performed labor for Windsor Ridge Homes. 5. The sources of funds in PlaintitTs checking account included moncy received from PlaintitTs divorce settlcment and proceeds from PlaintitTs own construction business. 6. At some time during the spring of 1996, after Plaintiff had ceased residing with Defendant, he discovered a number of cancelled checks written out by Defcndant in 1991. The checks were to parties and for amounts not authorized by Plaintiff. By writing thesc checks, Defendant unlawfully converted PlaintitTs money to her own use. 7. The checks discovered by Plaintiff and written without his authorization included the following: ~ ~ Number Amount Windsor Ridge Homes 2/27/91 2134 $10,000.00 Mary Jane Spencer 3/4/91 2137 $10,000.00 Orrstown Bank 3/4/91 2138 $ 10,183.01 L&P Associates 3/4/91 2141 $ 900.00 Windsor Ridge Homes 3/26/91 2149 $ 6000.00 Windsor Ridge Homes 3/28/91 2150 $ 1000.00 Windsor Ridge Homes 4/4/91 2155 $ 1000.00 Windsor Ridge Homes 4/5/91 2156 $ 15,000.00 Keystone Pools 5/17/91 2185 $ 153.59 Orrstown Bank 5/20/91 2189 $ 171.21 TOTAL $ 54,407.81 8. A praecipe for writ of summons was filed in this matter on May 14, 1997, and the writ was served upon Defendant on May 16, 1998. WHEREFORE, Plaintiff John H. Hocker requests that this court enter judgement in his favor and against Mary Jane Spencer in the amount of$54,407.81 as compensatory damages, plus costs and punitive damagcs. Respectfully submitted, i r;&~~ 1:, ! tt 'P $ te /4 We. ohn Wesley Weigel 7 Irvine Row Carlisle, PA 17013 (717) 243-1985 J. A07038/02 A jury trial commenced on October 30, 2000, Id. At the conclusion of appellant's case, the lower court granted appellee's motion to dismiss, based on the statute of limitations. Id. This appeal followed. Appellant raises two Issues for review: 1. Whether the appellee Is estopped from claiming the defense of statute of limitations because of the close and confidential relationship between the parties at the time of the conversion. 2. Whether the statute of limitations Is an affirmative defense that must be proven with evidence provided by the plaintiff. Appellant's Brief at 4. Appellant first contends that appellee should be estopped from asserting the statute of limitations as a defense, because they shared a confidential relationship, We disagree, EssentiallY, appellant claims he possesses a defense to the affirmative defense of the statute of limitations. With certain exceptions, a party waives all defenses and objections that he does not present In preliminary objections, answer, or reply. Pa.R.Clv,P. 1032. Appellant failed to raise the confidential relationship defense In his pleadings. In his reply to new matter, he proposed the discovery rule as his response to the asserted defense of the statute of limitations, Further, during the course of the trial, counsel clarified that appellant's theory was a discovery rule exception to the statute of limitations. See N.T. Jury Trial, 10/30/00, at 3-4. Only when the trial court dismissed his case did appellant - 2 - J. A07038/02 raise a confidential relationship theory. Because this defense to the statute of limitations was not raised as required by Rule 1032, It Is waived, In his second argument, appellant addresses whether the statute of limitations must be proven by plaintiff's evidence. First, we must examine whether this issue Is properly before us, Pennsylvania Rule of Appellate Procedure 1925 allows a trial court to order an appellant to file a statement of matters complained of on appeal. Pa.R.A.P. 1925(b). The rule also states that "failure to comply with such direction may be considered by the appellate court as a waiver." Id. In Commonwealth v. Lord, our Supreme Court held, "from this date forward, In order to preserve their claims for appellate review, [a]ppellants must comply whenever the trial court orders them to file a Statement of Matters Complained of on Appeal pursuant to Rule 1925. Any issues not raised in a 1925(b) statement will be deemed waived," Lord, 719 A.2d 306, 309 (pa. 1998) (emphasis added), In applying Lord, our own Court has repeatedly held that where an appeilant failed to raise an Issue in his Rule 1925(b) statement, he has waived It for purposes of appeal, See, e.g., Riley v. Foley, 783 A,2d 807, 813 (Pa.Super. 2001). Appellant only raises his first Issue in his 1925(b) statement. Since he falls to raise the second Issue, we deem It waived, Order affirmed, - 3 - t r;l' \, Cumbedilnd County PL'OLhollotilry'" Of f ice Civil Cil"C Inquiry t997-025G2 HOCKER JOHN H (vu) SPENCEH WIllY J^NE PYS510 Page RefeL'ence No.,: , Case Type. . . , .: HRIT OF SU~'MONS Judgment. . , . . . : .00 Judge ^ss igned: OLER J ~IESLEY JR Disposed [lesc.: - - - - - - - - - - - - Case Comments - - - , - - - - - - - - - I':i lcd,.......: lIme......... : Execution Date Ju ry TL' ia 1 . . . . Diuposed Date. Higher Crt 1.: Higher Crt 2.: 5/14/1997 U :32 0/00/0000 0/00/0000 277 MDI\ 2001 ......".... *.".... lit".."...."..".........."...."... * t".."..".."............"..............".......* *.. ..... .......... General Index ^ttorney Info HOCKER JOHN H SPENCER M^RY JANE 203 LOG C^BIN RO^D SHIppENSBURG P^ 17257 P!.^ I NTI FF DEFEND^NT ~IEIGEL JOHN ~IESLEY I I I HINDER S^LLY J ........................-......................................................- . Date Entrt"es . ..................-............................................................. 5/14/1997 5/14/1997 5/19/1997 7/23/1997 7/24/1997 11 - 15 6/08/1998 16 - 20 7/06/1998 21 - 23 7/27/1998 25 - 28 9/23/1998 24 9/25/1998 " / 5/03/2000 6/14/2000 6/22/2000 8/24/2000 9/07/2000 9/08/2000 9/11/2000 45 9/11/2000 46 9/15/2000 - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - PRAECIPE FOR HRIT OF SUMMONS IN CIVIL ^CTION-HRIT OF SUMMONS ISSUED .. --.. --.... ---.................... -........ --...... --...... --.... --.... ---- -- -----_.. -----.. --.... pL^INTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS ------------------------------------------------------------------- SHERIFF'S RETURN FILED Litigant.: SpEN~ER MARY J^NE SERVED : 6/12/97 HRIT OF SUMMONS Costs....: $20.00 I'd By: JOHN H. HEIGEL III 05/19/1997 ------------------------------------------------------------------- MOTION TO COMPEL DISCOVERY ------------------------------------------------------------------- ORDER - DATED 7L24/97 - IN RE MOTION TO COMPEL DISCOVERY - RULE ISSUED UPON DEFcNDI\NT RETURNABLE 20 D^YS AFTER SERVICE - BY J HESLEY OLER JR J - COPIES MAILED 7/25/97 ------------------------------------------------------------------- COMPLAINT ------------------------------------------------------------------- DEFENDANT'S ANSHER AND NEH MATTER TO PLAINTIFF'S COMPLAINT ------------------------------------------------------------------- REPLY TO NEH MATTER ---------,-------------------------------------------------.-.----- MOTION TO COMPEL DISCOVERY ---------------------------------------------------------.--------- ORDER 9/24/98 ^ RULE BE ISSUED UPON DEFENDANT TO SHOH CAUSE HHY PLAINTIFF'S MOTION SHOULD NOT BE GRANTED RULE RETURNABLE 20 DAYS FROM SERVICE BY THE COURT J HESLEY OLER JR JUDGE COPIES MAILED 9/28/98 ------------------------------------------------------------------- PRAECIPE FOR LISTING CASE FOR TRIAL BY KARL E ROMINGER ------------------------------------------------------------------- PRAECIPE FOR LISTING C^SE FOR TRIAL BY KARL E ROMINGER ESQ ------------------------------------------------------------------- ORDER OF COURT - D^TED 6/16/00 - CASE IS STRICKE FRQM JULY TRIAL TERM BY THE COURT KEVIN ^ HESS J COPIES MAILED 6/21/00 ------------------------------------------------------------------- ORDER - DATED 8/23/00 - IN RE PRETRIAL CONFERENCE - BY J WESLEY OLER JR J ------------------------------------------------------------------- DEFENDANT'S PETITION TO STRIKE ACTION FROM JURY TRI^L LIST ------------------------------------------------------------------- ORDER OF COURT - D^TED 9/7/00 - RULE IS ENTERED TO SHOH C^USE - RULE RETURNABLE ^T NOON 9/11/00 HITH A COPY TO CHAMBERS - BY THE COURT EDGAR B BAYLEY J COPIES MAILED 9/8/00 - - - -- - - - -- - - - - --- --- - - -- - - - - - - - -- - - - - - - - - - - - - -- - - - - - -- - - -- - --. - - - -- PLAINTIFF'S ANSHER TO DEFENDANTS PETITION TO STRIKE ^CTION IN JURY TRIAL LIST - ---- - ---- - - -- -. - - - --. -- - - - - - - - -- - - - - - - - - - - - - -- -- -- - - - - - -- - - - - - - - -- ORDER OF COURT - D^TED 9/11/00 - IN RE DEFTS PETITION TO STRIKE ^CTION FROM JURY TRIJ';L LIST - DENIED - BY TilE COURT EDG^R B BAYI,EY J COPIES MAILED 9/11/00 - - -- --- - - -- - - - --- - -- - - - - - - - - - - - - - - - - - - -. --- -- - - -- - - -- - - - - -- -- - - - - -- ORDER OF COURT - DATED 9/13600 - C^SE IS CONTINUED TO TRI^L TERM 10/30/00 - pROTHONOT^RY IS IRECTED TO RELIST THIS CASE FOR TIl^T ""', ,/, PYS~) 1 0 Pa~Jf~ ~ Cllfnb('I"ldt.lcl.('(Hplty Pn)Lhonot,ll'y'n at fice C 1 vII c,,,,,, I "'Iu i "y 1 ~~'" 02';G2 1I0CKER JOliN II (v,,) SI'EClCER rl.ARY .IANE 11/09/2000 11/17/2000 Fi led........: '1' llll(~. . . . . . . . . : EXf~cut Ion IJat(: .IUI'Y Tn,1I . . . . Dlupoued U.te. 0/00/00GO Hlql1er Cn 1.: 2'1" NUf, LV): IIlgher en 2.: TRI^,. TEHM - BY .1 \'/ESLEY OLER JR J - COPWS MAILED 9/15/00 - - - - - - - - . - ~ - - - . . '. - - - o. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . . _ _ _ _ _ _ _ _ _ _ _ _ _ ." _ _ . _ _ _ _ _ . 1 (10 I /2000 ORDER OF COURT - DATED 10/30/00 - IN RE ~IOTION FOIl DIS~llSSAL - IT APPEARING TO THE couln TIIAT TilE Pl.FF DID NOT USE DUE DILIGENCE IN DISCOVERING TilE PUPORTED ..llSAPPROPRIATION OF FUNDS THE I.IOTIOIl FOR DIS~lISSAL IS GRANTED - BY TilE COURT EDI'IARD E GUll10 J COPIES ~IAILED 10/31/00 - - - . . - - - - - - - - - - - - - - - . - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - . - - . - ~lOTlON FOR A NEI'l TRIAl, BY KARL E ROMINGER AT'I"{ FOR PLFF -------- - - - - -. - - - --- - - - -- --- -- - -------- --- -----._-- ----- ------ - ---- ORDER OF COURT - DATED 11/1'//00 - IN RE MOTION FOR A NEvi TRIAL PLFF IS GIVEN 20 DAYS TO FILE A BRIEF IN SUPPORT OF HIS II.OTION FOR A NEI'/ TRIAl, - DEFT IS GIVEN 20 DAYS THEREAFTER TO FILE A REPLY BRIEF - I'JlTTER IS SCIIEDULED FOR ARGUMENT IN CIIA!.1BERS ON 1/9/01 AT 8:30 AM - BY THE COURT EmlARD E GUIDO J COPIES l"All.ED 11/17/00 __ _ __ _ _ _ _ _ ___ _ _ _ _ __ _ _ _ ___ __ _ _ __ _ _ _ __ _ ____ _ _ ___ _ __ _. _ ___ __ __ __ _ _w ___ 1/10/2001 ORDER OF COURT - DATED 1/9/01 - PLAINTIFF'S MOTION FOR NEvi TRIAL IS DENIED - BY TilE COURT ED~/Alm E GUIDO J COPIES ~IAILED 1/10/01 ----- -- -. - - - - - - - - - - - - - - -- - - - --- - - - ----- ---- -- ---- - - -- -- - - - - -. - -- - -- 2/07/2001 NOTICE OF APPEAL TO SUPERIOR COURT PENNSYLVANIA FROM THE COURT ORDER 1/9/01 - BY KARL E ROMINGER ESQ FOR PLFF ------ --- - -- -- - - --- - - - - -- - - -- - - - - - - --------- ------ - - -- -------- -- --- 2/08/2001 ORDER OF COURT - DATED 2/7/01 - IN RE PLFFS COUNSEL IS DIRECTED TO FILE A CONCISE STATE~lENT OF I-lATTER COMPLAINED OF ON APPEAL WITHIN 14 DAYS OF TODAYS DATE IN ACCORDANCE WITH RULE OF APPELLATE PROCEDURE 1925 B - BY TilE COURT EDWARD E GUIDO J COPIES HAILED 2/8/01 ---- - - - - - - -- - - - - -- - - - - - -. - -- - - - - - - - - - - - - -- -- - -- - - - - - -- - - ------ --- -- 2/15/2001 BRIEF STATE~lENT OF ~IATTERS COMPLAINTED OF ON APPEAL - BY KARL E ROMINGER ESQ FOR PLFF ----- -- - - - -- - -- - - -- - - - --- -- - - - - - - - - --------- -_.-- - - --- - ------------ SUPERIOR COURT OF PA NOTICE OF APPEAL DOCKETING TO U 277 MDA 2001 ________ _ _ ___ _ _ w _ __ _ _ _ _ _ _ __ __ _ _ __ _____ ----------------------------- TRANSCRIPT FILED PROCEEDINGS IlELD IN CUMBERLAND COUNTY COURTHOUSE CARLISLE PA ON 10/30/01 IN CR 5 - BY THE COURT EDWARD E GUIDO J ---.------ -- -- -- -- - ---- -- - - ------ -- ------------ -- ------ -- ---------- 4/05/2001 OPINION AND ORDER - DATED 4/4/01 - IN RE OPINION PURSUANT TO PA R C P 1925 - BY THE COURT EDWARD E GUIDO J COPIES MAILED 4/5/01 - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - , .*.*........~~.f~.*................***.***................**....... . Escrow Information . . Fees & Debits Bea Bal pymts/Adi End BaI . ......*.......*.................t........ ......t......................*....*... H.! I I e r(>nc(~ No..: \ "" 'I'''l'' \'11'1'1' 0" s'Ur"10"" 'o.,t. (. 1 ~.....: '\ 1'. ',." l"" .Judqtnt.!l1 . . . . . . . : .00 .Jlui'W Am' ignecl: OLER .J \'/ESLEY .m D 1 ni~c:Jcd DCBC.: . - - - . - - - Cane COflllnentl'i - - - - . - . - - . . - - 5/1 ,; / 1 ~~', 1 1 : 3 ~~ 0/0 () / U fj r) G 47 54 62 65 2/26/2001 3/22/2001 136 , ; .' WR IT OF SUMMONS TAX ON WRIT SETTLEMENT JCP FEE APPEAL 35.00 35.00 .50 .50 5.00 5.00 5.00 5.00 30.00 30.00 .- - --- - -- .---- - ---_..--- 75.50 75.50 .00 .00 .00 .00 .00 ------------ .00 .........*.........................................*...............*.....****... , End of Cane 1 n[ormat ion . ..... .,. *.............. .*....... ............, ................. *....**.*...**..., .~~., t -0 ..3 a. .,. C'J :..- (Y) - Cr: c<: t- o to (6 ~,: .~ ~ ~.. .. :~2 ~r: l() (l) 1.0 LLIQ - . ... :1 <.)-., :C ~):~i: \!) ":It p:U ~.r: '~ t_~-__ '-J :r C!: !~- ~ 0(" : ..It) <J 0..' .s l;I; cc .)2 "-I". >- ,:.:z IT.:t..-.:.: ~Jt!.J -<< ;-~)u_ F :i... ...:;, ~ 11-. r- ::J 0 0' U ....." v ... , I I , . , ~ I , co , , 8J , , 1 , 1 , ~! . , 1 H , 1 H I ~ H , = , , 1 01 , .. o-i M , o-i' , ~ .... , , ~ 8 c' 0 , 'SI 0' ... ... !i ..., ~ ~ 'MI ~ ....:2 UI ~ ~ ...., ~ .l;!1 ~~l1:~ I~ N, 1< "" g Ul o-il 1111 r-1~ ..t"") , NI :c aJ fI) 'M' ~c~~ , C I ~I , ,.!.I , , . III , . I l~~ , "'I :c ..., 1 U, I , , .2 o-i'" , ~ i , , Ha.... , ~ , I o ... , , ...,... - , , I ..., , , , , , , , , ,,) ~ ">- ('I >- r:--; ~ .- ~~ .. ~~ We< - ""J.-t; I- e)- ' , .;,.1' (C' T- : ):" I.-i < ~ ..~ ,.. ~~ -)~ f" Ir. ~ ;,.'j'.., UII~- 1% --' fl:Z u::q1 >- "JcQ -. r- :.!..: ~u~ ..., u. r- :=> 0 '" tJ "-..,J ~ (" '~ c~ JUL 2 4 1997 JOliN II. 1I0CKER, Plllintilr : IN TIlE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY,PENNSYLVANIA : CIVIL ACTION - LA W vs. MARY JANE SPENCER, Defcndllnt : 97-2562 Civil Tenn ORDER AND NOW THIS ~ay of July, 1997, it is hcreby ordcred that II Rule bc issucd upon thc Defcndantto show causc why the Plllinti IT's Motion to Compcl Discovery should not be grunted. Rulc returnllble in ..2.Q. dllYS ancr servicc. Service of this rule upon Dcfendant by Iirst-c111sS mail. BY TIlE COURT, uJ\./;J . cc: John Wcsley Weigel III, Esq. Attorney for Plaintiff . (. l 7/;ts-Jr,1 "'- C"'f"''''''''' n..\.~ ~, ' >08.~ Mary Jane Spencer Defendant ('") .n 0 r:.- -' 'n ;->:. ,- .,.. .-..,.. ,-- "''"1:1) ... t ~ !. : "- r- .', N ..,-n .0 .. '. -" ;(j :. , : --:0 d '. , :7- --,n " , i ",rT1 . ~.) ,-.. -,-' -. :CJ """ .].) . -0 =-< ~ .r-. ,r"\ (c). the disposition of such bank statements, eancelled checks or other financial records made by you or by another person last known to have handled them. ANSWER: 3. If your answer to Interrogatory I is "yes", please state the nature, location and holder of such bank statements, cancelled checks or other financial reeords, to the extent that these documents are not produced in accordance with Plaintiffs Request for Production of Documents. Respectfully submitted, 1Ar 1>, (7'7- Date (d(l 1 Wesley Weige ill, Esquire. 7 Irvine Row Carlisle, PA 17013 (717) 243-1985 q, , ---. ,.-.. JOI.IN II. HOCKER, PlaintifT : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION - LA W MARY JANE SPENCER : 97-2562 Civil Tcrnl COMPLAINT AND NOW COMES Plaintiff John H. Hocker, by his attorney, John Wcsley Weigel Ill, to file this complaint, alleging as follows: 1. Plaintiff John H. Hockcr is an adult individual residing at 520 Boxwood Lane, Carlisle, Cumberland County, Pennsylvania. 2. Defendant Mary Jane Spcnccr is an adult individual residing at 203 Log Cabin Road, Ncwville, Cumbcrland County, Pcnnsylvania. 3. Plaintiffand Dcfendant residcd togethcr from about March, 1987 until February 21, 1996. 4. During the timc they residcd together, Plaintiff assisted Dcfcndant in cstablishing a construction business, Windsor Ridgc Homes. As part of this assistance, Plaintiff authorized Dcfendantto write chccks from his account to pay for Windsor Ridgc Homcs' payroll and taxes. Plaintiff also performcd labor for Windsor Ridge Homcs. 5. The sources of funds in Plaintiffs checking account includcd money receivcd from Plaintitl's divorce settlcment and procccds from Plaintiffs own construction busincss. 6. At some time during thc spring of 1996, after Plaintiff had ceased rcsiding with Defendant, hc discovercd a nllmbcr of cancellcd chccks written out by Defendant in 1991. The checks were to partil's and for amounts not authorizcd by Plaintiff. By writing these checks, Defcndant unlawfully convcrtcd Plaintitl's money to her own use. 7. The chccks discovercd by PlaintilTand writtcn without his authori;r.ation includcd the following: iJ" ~-.. ~ Da~ Numbcr Amount Windsor Ridgc Homes 2/27/91 2134 $10,000.00 Mary June Spcncer 3/4/91 2137 $10,000.00 Orrstown Bunk 3/4/91 2138 $ 10,183.01 L&l' Associates 3/4/91 2141 $ 900.00 Windsor Ridge Homcs 3/26/91 2149 $ 6000.00 Windsor Ridgc Homes 3/28/91 2150 $ 1000.00 Windsor Ridge Homes 4/4/91 2155 $ 1000.00 Windsor Ridge Homes 4/5/91 2156 $ 15,000.00 Keystone Pools 5/17/91 2185 $ 153.59 Orrstown Bank 5/20/91 2189 $ 171.21 TOTAL $ 54,407.81 8. A praecipc for writ of summons was filcd in this matter on May 14, 1997, and the writ was scrved upon Dcfendunt on Muy 16, 1998. WHEREFORE, Pluintiff John 1-[, Hocker rcquests thutthis court entcr judgcment in his favor und uguinst Mary June Spencer in the amount 01'$54,407.81 us compensatory damages, plus costs und punitive damagcs. Rcspectfully submittcd, I ~:,~ 1:, ! '1/ g Ie _ d~/I {-Jc ohn Weslcy Wcigcl 7 Irvine Row Carlisle, PA 17013 (717) 243-1985 J 3. E C') ,- "'" cv F" " w0 .:.: ~r ()--:~ ,~:: "( F-c - '~, ~:.~ L,;... -. ~J: Ll.. '.... ,. , > I ~ ", '-, 0:::, 'w.. I .<it;! OCl,!. ~.: 1-'= .--, .,'!!1 ::; ~.i ) u.:. l:; en :!5 0' U !"'""\ f""I ~. r-. mutual benefit of both plaintiff and defendant during a time when they resided together and were members of the same household, or were specifically authorized by plaintiff to be written for the benefit of defendant in her own right, or were written to transfer funds from plaintiff's account to the account of Windsor Ridge Homes to pay for labor and materials, or were written to repay monies previously lent by defendant to plaintiff, 7, Denied, as to the aspect of the averment the plaintiff discovered the checks in question, as after reasonable investigation, defendant is without knowledge or information sufficient to form a belief as to the truth of this aspect of the averment. All of the remaining aspects of this averment are denied. To the contrary, defendant avers that she wrote all the checks in question with authorization from plaintiff. 8, Admitted, with the proviso that service of the writ occurred in 1998 rather than in 1997 (The complaint contains a typographical error). WHEREFORE, defendant demands judgment in her favor and against plaintiff, together with reasonable costs and attorney fees. NEW MATTER 9. Paragraphs 1-8 of defendant's answer are incorporated herein by reference as if fully set forth, 10, Plaintiff's complaint seeks damages from defendant, alleging that defendant unlawfully converted plaintiff's money to her own use over a period of time which commenced February 27, 1991, and terminated May 20, 1991. 11, The applicable Pennsylvania statute of limitations, 42 Pa, C.S. se~tion 5524, requires that suit on such a cause of action be commenced within two years of the date on which the cause of action accrued, 12. Plaintiff's cause of action as to the last check written by defendant accrued on May 20, 1991, and plaintiff's cause of action as to each of the other checks written by defendant accrued on a date before May 20, 1991, and plaintiff's action as to all of the checks written by defendant was not commenced until May 14, 1997, which is beyond the statutory period of limitation. 18'. ~ ". ~:; .~ - .. \-- :".) ~ C~i c....~ -. \I }".. C~lC : -. ) . - p-- 1....__ ()(: f' ....':'> \._, L"-' u I " U:l I .' U .:. ,'- . '- ll.. r -) 0 f..-'''' U , . \-,,) -~ . >- u> := ~ c: ~... ~- .. ':54 ~Q - .- .....- ftR :t: ~--) ;"-.: -.- ~~. u.. L1;-:j ~ - &' r- ~\:~ N __lZ "- ,,,,.-; LU -, i:,~rjJ f!i ::> :u r>. ., ~ ..... CJ:l -) 0 01 0 ',,, . . ('I r- JOliN II. HOCKER, Plaintiff SEP 2 4 199B '/!.lA- : IN Tim COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION - LAW MARY JANE SPENCER, Defendant : 97-2562 ORDER AND NOW this ~ day of ~ ~ 'ft -. L. eJ , 1998, upon the PlaintilT's Motion to Compel Discovery, it is hereby ordered that a rule be issued upon Defendant to show cause, if any she have, why PlaintilT's motion should not be granted. Rule returnable in twenty (20) days,.fro.... ~~VI ~ C. . Service of this order by first class mail. BY TI.IE COURT, J. ee: John Wesley Weigel III, Esquire Attorney for Plaintiff r>"''-€'A-(ul 9J~fflqs. C"'~oLi .oS. .p, - Sally J. Winder Attorney for Defendant (", ~ ~ ~.' . " . (.J.I ., :n ! .,' ..., .'\ J ., .:- " , t,) . " l . .,. ". , . - .... .. , ~., -'1 '. :~, : ',." , " " ..;-) ~ . I'll ( ~? . ) r , ::-, . ~. :.<! ."-" ~ .- t:> -- ~'r >- t"') cr. r::: ... Lr. >.. .:...': IJJ() " - '~J_ ~,~_.. {:1:;: .( ~ . :1": i,tii":. (I.. .~ J, ., "1-" -;-~ ,-, . M '.,'fn lJ:' . 0..1 ) -. i.:i: t 'J >- :-r:;.:? -.' ~.. .:::(1) . :c " ~c. CJ.. 0 -' (,) ~:i CJ u .....) '-' ~ 0:> .... -~ '-. ":'. -- -.../ ':: - ~.:; <:'" d .:.) , ;> , :-.J '- I '-; ! 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Disposed Dnte, III ghar Crt 1.: IIlghar Crt 2.: 5/14/1997 11:32 0/00/0000 0/00/0000 .."....,.".,.....,.................,..........................,-.*...*....,_.. (;onor,,1 I ndox Attorney Info IIIH'KI-:Il ,'OliN II PI.AIN'rIFF WF.JGF.I, JOliN WESLEY III :;I'ENI:I':1l MAIlV ,'ANE DEFF.NDAN'I' WINDER SAI.I"V ,I J.()' 100e: CABIN 1l0AD :;IIII'I'I';N:;III1IH; I'A 172'i7 .,*",..."...........**..........,......,................*...........-.....,... . llilL.. 1';IILI'los * ",..,.,......,........,.,............................................'*--.-.... '. / I ,I / I !J 'J7 'l/I,I/l'ln '1/1'1/ I '197 7/'},1/19'17 " - - - - - - ... JllST EN'rHV - - .. - - - - - - - - - - - I'IlAI':CIPE Fall WIl11' OF SUMMONS IN CIVIL M~'rJON"WHIT OF SUMMONS ISSUED --..-.-. ..-..--.--------..... -.--.-..---..-.------------------------- I'I,AIN'I'I"'F'S IlEQIlEST FOR PRomlc'rlON OF DOCIlMENTS _ _ _ _ _ __ _ h _ _ ~ .. _ _ _. _ _ _ . _ .. _ _ _ .. _.. ._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ SIII-:Jl1 ....... S IlWl'lIIlN "'II,EIl l,iLlqilnt.: SPI';NCEIl MAllY .IANE SEIlVr.1l : liIl2/'J7 WIlI'I' (W SUMMONS C""I.:;....: $20.00 I'd By: .IOIIN W. WElm:l. 11105/19/1997 - . .- - - - ., - - - -.. .. ,- - -. .-.. - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MO'rlON '1'0 COMPI':I, III scovlmv In'I/III'17 Olllllm IWI'EI1 7/24/97 IN In: MOTTON '1'0 COMPEL I1ISCOVERY - RUl.E I SSlJEIl lJPON IlEFENIlAN'I' llE'rlJRNABI.E 20 DAVS AFTF.ll SERVICE - BV ,I WESLEY OLfm .IIl ,I ' COPIES MAlLED 7/25/97 /0 11111/ I 'l'lll COMPI ,A I N'r '1/01,11'1')11 IlEFI';NIlI\N""S ANSW~:R ANI1 N~:W MATT Ell 1'0 PI.AIN1'IFF'S COMPI.AINT ---- ..._--~._.._------------------------------------------------- 7/n/I')9R IlEI'I,V '1'0 NI':W MA'I'TF.1l '117.1/ 1 ~l'}1I MOTION '1'0 COMPEl, DISCOVERV -.. .----------,...------------------------------------ '1/~~'./ I 'l'III ClIlJlJ-:1l 9/24/98 A IlUI,I'; BF. ISSUF.1l UPON DEF~:NIlAN1' TO SIIOW CAUSE WHY I'I.AIN'I'II-'F'S MOTION SIIOULD NO'r BE GRAN'I'EJl Rlll.E RE1'URNABLE 20 DAYS FIlOM SEIlV I n: BV 'l'lIE COURT J WESLEY OI.ER ,m ,JUDGE COPIES MA JI.EIl 9/28/99 ',/01/7.000 I'IlAEC I 1'1': FOil loIS1'ING CASE Fall TRIAl. flY KARl. E ROMINGER /0/ loJ/2000 /0/7././2000 IIn4!2000 lJ/1l7!2000 PIlAECIPE Fall I,IS'rING CASE FOR TRIAl. BY KARl. E 1l0MINGER ESQ . - ..-- --- ----- .---------------------------------------------~.- OIlJlEIl 01' COl/llT - llA'rEI1 6/16/00 - CASE IS STR ICKE FROM .1lILY TRIAl. 'l'EIlM IlY 'I'm: COlJR'I' KEVIN A IIESS.I COPIES MAII.ED 6/21/00 . .. -..' .. - . - . .. - - - - - - - - .. - . - - - ..- - - -. ,- - - - - - - - - - - - - - - - - - - - - - - - - - - - -- OIlJlEIl IWI'EIl 8/23/00 - IN IlE PIlWI'IlII\l. CONFE:RENCE - BY .1 WESLEY OLEIl ,Ill .1 ----.--------,------,---------..--------------------------- IIEFENIlAN'I"S Pf':1'f1'lON TO S1'IlIKI'; AC'I'ION FROM .IIIIlV TRIAL LIST 'I/IlIl!2000 OIlIJl':1l ew COl/ll'I' IlA'I'EIl 9/7/00 ' IlIll,E IS ENn:Il~:n TO SHOW CAUSE - IllIl.l.: IlETIIllNAIlI,E A'I' NOON 9111/00 WI'I'II A COPY '1'0 CHAMBERS - BY THE COlJll'l' EIl(;AIl 1\ HAVLEY .1 COPIES MAILED 9/1l/00 '1/11/2()OO I'I.AIN'I'IFF'S ANSWEIl '1'0 IlEFENflAN'l'S PI':'I'I'I'ION '1'0 S'I'llIKE Ac'rION IN JURY 'l'IlIAI. I,IS'I' '1/ I I !2000 OI111I':1l Ill-' COIIll'I' IWI'EIl 9/11/00 I N liE IlEFTS PI':TJTION '1'0 STRIKE AC'I'ION Fllml ,IIIIlY 'I'll I AI. 1.1 S'I' IlEN tlW - BV 'I'IIE COUIlT EI1GAR B BAYI.EY ,I COP II';:; MA II,EIl 9/11/00 . .-- - - _..-.. -. - -., -- - - ..- - _.- - --.~, -- --------------------- '1/IClnO[)O CIIl1JEIl OF COl/llT flA'l'lm 9/13/00 ' CASI': IS CON1'INUED '1'0 TRIM. TERM tOIlO/OO " I'IlO'I'II0NO'I'AIlY IS DIIlEc'rl';n '1'0 RElols'r THIS CASE FOR 'rllAT sc" ~ " ~ I,) ~ ~ ~ ~ '~ ~ .., -- 3l~ .t:- '" ~.2 ~c: ~i ~~ :ll~ -0 u . . . . ., ... ~ ~Ia - ~ ~ ~~ 'I '6 c: Ii! ~& ~, € til ~ S ~ ~ 8 . -~ 7 .8 <> g ~ .c: ~ U '" ..: r: ( :;::.> ('), '- '-t'1 -n " . . . r', , ~,~J ,". ~. , '.; . , (,. " t.H , ~.~) .' " f"4\ ' ..., " :~-:(' ..... .~.';~.'~\~ ..... ",',~ C' :.;? : ~, ),;;- (: .',,' ,. ~ ~1 ~ ~ ~ r- INDEX TO WITNESSES FOR THE PLAINTIFF John Hocker DIRECT 9 CROSS 16 REDIRECT 43,47 RECROSS 44,47 INDEX TO EXHIBITS FOR THE PLAINTIFF MARKED ADMITTED Ex. No. 1 - checks 14 48 FOR THE DEFENDANT Ex. No. 1 - bill 27 not admitted Ex. No. 2 - check 32 not admitted Ex. No. 3 - check 32 50 Ex. No. 4 - check 34 not admitted Ex. No. 5 - audit notice 37 not admitted Ex. No. 6 - complaint 44 50 ~c; ,.-- 1 THE COURT: Good morning. I want to put a 2 couple things on the record here before we start. We have 3 two things. Judge Oler's pretrial order directed both 4 parties to file a brief on the statute of limitations issue 5 five days before trial. We have received the brief of the 6 defendant. We have not received the brief of the 7 plaintiff, and I understand that was an oversight on your 8 part; is that correct, Mr. Rominger? 9 MR. ROMINGER: That's correct, Your Honor. 10 THE COURT: But you do agree that the 11 statute of limitations is set forth in 42 Pa,C.S. Section 12 5524? 13 MR. ROMINGER: Correct, the two year statute 14 of limitations, 15 THE COURT: The two year statute of 16 limitations. And then we have a motion in limine that has 17 been filed by the defense requesting that there not be any 18 testimony dealing with fraudulent concealment. My 19 understanding is that that motion in limine is rendered 20 moot by the position that the plaintiff is taking, that 21 fraudulent concealment is not an issue, but that the 22 discovery rule is an issue. 23 In other words, that -- and correct me if 24 I'm wrong. You're indicating that your client simply did 25 not discover this because the checkbook was solely in the 3 ID 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 r- control of the defendant until 1996; is that correct? MR. ROMINGER: That's correct, Your Honor. THE COURT: And that she didn't do anything affirmatively to mislead him or conceal what was there. It was simply the fact that the checkbook was within her control; is that correct? MR. ROMINGER: One second to confirm. Yes, Your Honor. THE COURT: Okay, Then we will proceed on that basis. And with that in mind, we can get the jury panel. Okay. Four strikes each. Okay. Twenty minutes on voir dire questioning for each side, (Whereupon, the jury panel entered the courtroom at 9:52 a.m.l THE COURT: Good morning, ladies and gentlemen, and welcome to jury duty in Cumberland County. I thank you for your service. We really appreciate the function that you perform this week. The case that you will be serving on in this courtroom is the case of John Hocker versus Mary Jane Spencer. Mr. Hocker is represented by Karl Rominger, Esquire. MR. ROMINGER: THE COURT: by Sally Winder, Esquire. Good morning. And Miss Spencer is represented They're going to ask you some 4 II ~ 1 questions right now, and the purpose of the questioning is 2 to make sure that we have a fair and impartial jury 3 impaneled that can decide this case based solely upon the 4 evidence that is presented at trial, and the law as I give 5 it to you at the conclusion of the case. 6 If you have an answer to one of the 7 questions propounded by the attorneys, please raise your 8 hand. When you're called upon please stand up and give 9 your juror number. It's important that you follow this 10 procedure because Michele up here has the difficult task of 11 taking down everything that's said during this trial and in 12 this courtroom, and if you don't stand up and don't 13 identify yourself by juror number, her job is impossible. 14 So if you will follow those ground rules, we will 15 appreciate that, and with that in mind, if you will swear 16 the panel in. 17 (Whereupon, the jury panel was sworn.) 18 (Whereupon, the jury was selected and 19 sworn.) 20 THE COURT: Okay. Ladies and gentlemen, I 21 want to give you some preliminary instructions, and we'll 22 see where we stand at that point, whether or not we'll 23 proceed to openings or not. 24 First of all, let me thank you in advance 25 for the service you're about to perform. It is one of the 5 ~ .--- 1 most important civic duties that you will ever perform. I 2 like to say that aside from military service in the time of 3 war, I cannot imagine any more important civic duty that 4 any of us can perform. 5 How you do your job in this case is every 6 bit as important to our system of justice as how these 7 attorneys do their job and how I do my job, So I ask you 8 to take upon this duty with the solemnity and seriousness 9 that it deserves. 10 You will be the fact finders in this case. 11 In other words, it's going to be up to you to decide what 12 the facts are, and in determining what the facts are you 13 will be asked to judge the credibility and weight that 14 you're going to give to the various evidence, including the 15 testimony of witnesses, 16 By credibility of testimony or other 17 evidence I mean its truthfulness and its accuracy. In 18 judging credibility and weight you should use your 19 understanding of human nature and your common sense. 20 Observe each witness as he or she testifies. Be alert for 21 anything in the witness's words, demeanor or behavior on 22 the witness stand or for anything in the other evidence in 23 the case which might help you to judge the truthfulness, 24 accuracy, and weight that you will give to the witness's 25 testimony, 6 13. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 r- So your job is to decide the facts. My job is to decide the appropriate law, and at the end of the case I will tell you what the law is, and you will apply that law to the facts as you determine them to be to reach a fair and just and impartial verdict in this case. So that's how the procedure works. A couple of cautionary instructions that I will give to you then on how it works. First of all, you must keep an open mind throughout these proceedings. That should go without saying, but I've got to say it. You will not be in a position to make a fair and impartial determination until you've heard all of the evidence and until you know what the law is, and that won't come until the end of the case. So you must keep an open mind, You must not discuss the case with anybody, including among yourselves, until all of the evidence is in and you know what the law is. If this goes into tomorrow, and your spouse is like my spouse, you're going to get a thousand questions tonight. Your answer has got to be I love you, honey, but we can't discuss it. I'll tell you all about it when it's Okay? You must also avoid outside influences. In other words, if there's anything about this case that's on allover. 7 ~74 -.. ,'- 1 the television, radio, or in the newspaper you must ignore 2 it. It's important for you to understand that everything 3 you need to know to decide this case must come from this 4 courtroom. So our world is right here. 5 Avoid all outside influences. Don't do any 6 independent investigation on your own. Don't read 7 anything about the case. Get what you need to decide this 8 case right from this courtroom. That's your duty. 9 During the course of the trial you're not 10 allowed to take notes. So you've got to use your 11 collective memory to determine what the facts are. And by 12 the way, the facts are to be determined by you from the 13 evidence, and evidence in this case is only one of two 14 things. 15 It is the sworn testimony of witnesses or it 16 is exhibits that are properly admitted upon my rulings. 17 So the statements of the lawyers and the questions of the 18 lawyers are not evidence. Evidence comes from the witness 19 stand or properly admitted exhibits. 20 I believe that is all of my opening 21 instructions. Again, keep an open mind. Do not discuss 22 the case with anybody, Avoid all outside influences, and 23 with that in mind we will have brief opening remarks from 24 the attorneys. Mr. Rominger, 25 MR. ROMINGER: Thank you, Your Honor, 8 70 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ( (Whereupon, Mr. Rominger opened on behalf of the Plaintiff.) THE COURT: Okay. Well, ladies and gentlemen, this case is proceeding quickly, Ms. Winder, as she has the right to do, is going to reserve her opening until the conclusion of the Plaintiff's case. Rather than start a witness now we'll take a break. Let's take a ten minute break, and then we'll start with the testimony, ladies and gentlemen. Do not discuss the case with anybody, including yourselves, and keep an open mind. We'll see you in ten minutes. (Whereupon, the jury left at 10:33 a.m.) AFTER RECESS THE COURT: Okay. Mr. Rominger, call your first witness. MR. ROMINGER: I call John Hocker to the stand, Your Honor. Whereupon, JOHN HOCKER having been duly sworn, testified as follows: DIRECT EXAMINATION BY MR. ROMINGER: Q Give your name and address for the record, sir. 9 '7' 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .-, f' A John H, Hocker, 520 Boxwood Lane, Carlisle, o And you're the plaintiff in this case? A Beg your pardon? o You're the plaintiff in this case? A Yes. o Around 1991, 1992, what sort of business were you engaged in? What did you do for a living? A General contractor. o And tell us a little bit about what you did as a general contractor. A Mostly what I did was build houses, o How many? Do you know? A I don't know. A hundred and some or two hundred and some. I don't know. I don't keep track. o Did you have people working for you? A Yes. o How many? Do you remember? A Well, it varies. Sometimes five, sometimes six, sometimes seven. schedule. It just depends on the work o Okay. Did you sometimes use subcontractors also? A Yeah, I used subcontractors too. o What's it cost -- back at that time what did it cost to build a house? Do you remember? 10 17, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ,-' A Well, the last one I think was maybe $160,000.00. o Did a lot of the money for construction flow through your business? A Yes. o Did you get to keep all of that money? A No, only part of it. o Why is that? To pay subcontractors? A Well, I had to pay subcontractors. I had to pay suppliers, and so forth. I had to pay the men. o And the transactions were routinely in the thousands and tens of thousands of dollars? A Sometimes they did. o Did you have an account with Orrstown Bank at the time? A Yes. 0 Now, was anybody else authorized to sign on that account? A Yes. My health started to fail me, and if anything would have happened to me there would have been no way to pay the suppliers or pay the weekly payroll. o Okay. Who did you put on that account with you? A Mary Jane Spencer. o Now, are you a bookkeeper? 11 '7 CO, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 r A Yes. Q And the bank would honor that? A Yes. Q Now, at some point did you discover that some checks had been written that you didn't know about? A Yeah. After I moved out of the residence she wouldn't let me back on the property again. 50 she loaded all of my household stuff up, and took it up to 5hippensburg to a storage shed. That included different items, and the one thing was my desk that I used to carry on my business with, which I had had for years and years. I discovered these checks in the one drawer in an envelope. Q Do you remember about how many checks that was? A I'm not sure how many there were. Q Okay. A They're itemized somewhere. Q Would it be fair to say it was in the neighborhood of $50,000.00 worth of checks? A I would say in that amount, yes. Q After looking at those checks, did you recall authorizing any of those expenditures? A No. The checks came blank to me. Q Now, what was Windsor Ridge Homes? A Mary Jane wanted to go into the contracting 13 OD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 ,- business, and she formed this fictitious company, Windsor Ridge Homes, Q To your knowledge, did Windsor Ridge Homes ever build anything? A No, MR. ROMINGER: Your indulgence for a second, Your Honor. Permission to approach, Your Honor. You may, THE COURT: BY MR. ROMINGER: Q What I'm going to show you, Mr. Hocker, is a series of checks and a photocopy, and I would like you to look through these and see if those are the checks you found, and if that photocopy is a copy of one of the checks that you found? THE COURT: Are these marked as an exhibit 16 or will they be marked? 17 MR, ROMINGER: They will be marked as an 18 exhibit, Your Honor, 19 THE COURT: Are you going to mark them 20 collectively as number one? MR, ROMINGER: Collectively as Plaintiff's 21 22 1. 23 (Whereupon, Plaintiff's Exhibit No.1 was 24 marked for identification.) 25 BY MR, ROMINGER: 14 ~I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 r' Q Are these the checks you were referring to? A Yes. Q And you found them in the desk when it was returned to you? A Yeah. Q Having reviewed them again, do you recall authorizing any of those expenditures? A I don't believe I did. I'm pretty sure I didn't. Q One check, check number 2137, sir, for $10,000.00, it has a signature on it. Whose signature is that? A Mine. Q Do you recall signing this particular check? A Yes, but what for I don't know, because I signed blank checks different times for payroll, Q And would a payroll check have been made payable to Mary Jane Spencer? A No. I never had any payroll checks of $10,000.00. Q Now, at the time that these were written, how would you describe your relationship with the defendant? A My relationship with Mrs. Spencer? Q At the time. 15 ~,,), 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 o A All right. o In fact, you were boyfriend and girlfriend? A I guess that's what you'd say. o And you essentially trusted her? A Yes, I trusted her. We were supposed to get married, but that didn't happen. MR, ROMINGER: I have no further questions. THE COURT: Anything, Ms. Winder? MS, WINDER: Yes, CROSS EXAMINATION BY MS. WINDER: o Mr. Hocker, all of these checks and this copy that have been collectively marked as Plaintiff's Exhibit Number 1, can you tell me whether or not they're all written on the same account? A I believe they are. 0 And which account is that? A The account I had at Orrstown Bank. 0 Did you have any other accounts at Orrstown Bank? A No, 0 Were there any other accounts where Mary Jane Spencer was an authorized signer together with you? A Only this one. 0 Only that one. Okay. 16 ~3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 r- A That I knowof. o And all of these checks are in a time frame that covers what months and what year? Do you know? A Well, I can tell by looking. It looks like February and March of 1991. o Any other months? A Well, that one's February, That one's That one's March. That one's March. That one's March. March. May. That one's April. That one's April. And those two are May. o All of 1991; is that correct? A Yes. o And the address for that account is what That one's address? A Orrstown Bank. o Okay. In your name? A Yes. John H. Hocker, Contractor. o Okay. And is there an address listed under your name on the checks? A Yes, 203 Log Cabin Road. o And what is 203 Log Cabin Road? A That's where I was living with Mary Jane. o And that's Mary Jane's property, is it not? A Part of it is, o Do you have any ownership interest in that 17 o~ 1 2 3 4 5 6 7 8 9 10 11 12 13 ,,-, r' property? A Beg your pardon? Q Do you have any ownership interest in that property? A Nothing on paper. Q Okay. Did you in 1991? A No. Q But you resided there? A Yes. Q And you had an office desk that was at that residence; is that correct? A I had a lot of things at that Yes. residence. 14 Q And you said that's where you conducted your 15 business? 16 A Yes. 17 Q You used that desk, and that was your 18 business desk? 19 A When I had a business, that's where it was 20 conducted at. 21 Q Did you keep your business records in that 22 desk? 23 A I don't know if she did or not, 24 Q My question is whether or not you did? 25 A No, 18 8'J 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~, r-, Q Where did you keep -- A Yes, there was some there. Q There were some records in the desk? A Yes. Q And in February, March, April, and May of 1991, do you know what construction job you were engaged in? A Yes, one over in Amerson Valley. Q And who were you building for? A People by the name of Habigs. Q And did you consider yourself the general contractor on that job? A I wasn't a general contractor, no, I didn't have any contract or anything with the Habigs, Q Okay. Were you the one who ran that job? A More or less. Q You ordered materials? A Yes. Q You laid out the job? A Partly. Q Did Mary Jane do any of that? A I don't believe. She was there a couple times. Q Was she otherwise employed during that time? A I don't know if she was or not. 19 ~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~, 1'""', Q Do you recall whether or not she was teaching at Carson Long at that time? A I have no idea where she was at. She's been so many places. Q Okay. But you were working at the Habigs property? A Yes. Q Okay. Was that pursuant to a contract between Windsor Ridge Homes and the Habigs? A Yes. Q Okay. Is that the $160,000.00 you talked about? A Somewhere in that area. Q Okay, Could it be more accurately $180,000.00? A Maybe if the extras were paid it would have been, but the extras were never paid on that job. Q Okay. And when you talk about the payroll, are you talking about the payroll for the Habig job or are you talking about prior payroll in your other business? A Well, she had a contract for another previous to that one, which was about the same set up. Q Okay, And was that prior job going on at any time that these checks were written? A It was going on prior to these checks being 20 n 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ,,-. 1 2 3 4 written, 5 Q Before that. Now, with respect to check number 2193, I'm going to ask you to take a look at that check. Can you tell me the person that that check is made payable to? The payee on the check? A Beg your pardon? Q Can you tell me who the payee is on that check? A It was the plasterer who did the plastering in the Habig house, Q Okay. So you know what that was for. That was for a subcontractor? A But it shouldn't have come out of my account though. Q Well, you knew that he did the work at the Habig house, right? He did the work, right. Okay. But Mary Jane was reimbursed for that amount A Q A of money. Q A Q How was she reimbursed? From the Habigs. What is the name of the person that that check -- to whom that check is made payable? A Robert Martin, the plasterer. 21 ~t 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 '-" r- Q And what is the amount of that check? A $857.12, Q Okay. MR, ROMINGER: Your Honor, I'm going to object insomuch as that check is not a part of this lawsuit. It is not a part of our complaint. THE COURT: It's part of Exhibit 1, is it not? MR. ROMINGER: It is. MS. WINDER: Yes, it is. THE COURT: Objection overruled. BY MS. WINDER: Q Mr. Martin needed to be paid for the plastering on the Habig job? A Sure he got paid. There's a check for it. The only thing I would like to say about the check is the check should not have been written out of my personal account. It should have been written out of the Windsor Ridge account. Q Okay. Let me, again, refer to that same check and have you look at it. Tell me whether or not you see anything written on the memo line? A Habig job. Q Okay. And is that written in your handwriting? 22 ~1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ,'-' A No. Q That's not your handwriting? A No. Q It's not Mary Jane's handwriting, is it? A Well, it's not mine either. Why would I write that on a check that I didn't write? If you look at all of the writing on that check, it's Mary Jane's. Q Except for the memo line? A I don't know. It's not mine because I didn't write any of the checks. Q Mr, Hocker A Is that my writing there? Q do you agree that the signature on check number 2137 is your signature? A Yes. Yes, that's my signature, but that's not my writing here, and it's not my writing on the check. Q Okay. And the memo line on that says loan repayment; is that correct? A Correct, but that's not my writing. That's Mary Jane's writing. Q Had you ever borrowed money from Mary Jane? A I don't know if I have or not. Q You don't recall her lending you $20,000.00? A Lending me $20,000.00? Q Urn-hum. 23 90 r- 1 A Where is it deposited at? 2 0 Can you answer my question? Do you recall? 3 A No, I don't recall. That's the reason I'm 4 asking you. Where was the money deposited at? 5 0 You don't recall monies going from the 6 contracting account to Windsor Ridge to cover payroll in 7 1991? 8 A Sure, for payroll there was. 9 0 And you had how many employees working on 10 the Habig job who were covered by regular payroll? Do you 11 recall ? 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A o Four or five. And would that be approximately a thousand dollars? A When? o A week? A No. o No? Okay. Do you recall carrying your checkbook around with you? A Sometimes I did. o So you had access to your checkbook? A Yes, I did, o And you wrote checks out of it during this time period? A Sometimes I did, It depends on what it was 24 (1/ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ C' Q But you had your checkbook? A I had the checkbook in the truck, yes. Q And the statements came to you, did they. not? A They came to our residence. Q Okay. That would have been 203 Log Cabin Road? A Yes. Q Do you recall looking at your statements? A Beg your pardon? Q Do you recall looking at your statements? A No, I never looked at the statement. I said a while ago, I never bothered with the checkbook. Q Well, you knew moneys were coming in and out of that account, did you not? A Yes. Q And you were writing some checks, were you not? A Very seldom. Q Okay. Were you interested in whether or not the checks you wrote would bounce? A No. I wasn't worried about it because I knew I carried enough money to cover them. Q Okay. So you had some idea of what amount of moneys were in your account. Is that a fair statement? 26 q3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 r- A I did until it started to dwiddle. o Okay, (Whereupon, Defendant's Exhibit No.1 was marked for identification.) BY MS. WINDER: o Mr. Hocker, I'm going to show you what I've had marked for identification purposes as Defendant's Exhibit Number 1, and ask you if you can tell us what that is? A I don't know who this was sold to. o Can you tell me what it is? A Well, yeah, 75 pieces of corner right, 15 one and three-eighth drywall nails, metal lath. o Okay. And it appears to be on a billhead from what company? A I have no idea, o Well, look at the top of it, Mr. Hocker. A Oh, Franklin Feed and Supply Company. I never had an account there. o Okay. It's dated what date? A 4/24/91. o And on the line that says address, what's written in there? A What's that again? o On the line that says address, what is 27 c,'4- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ r' written there? Can you tell us? A I don't see anything. THE COURT: Actually he has no idea THE WITNESS: Oh, you have Habig in there, THE COURT: You cannot get that in through him. He has no idea what it is. He had no account there. BY MS. WINDER: Q Mr. Hocker, does it say on the bottom THE COURT: Well, what I'm saying is he doesn't know anything about this exhibit. You can't ask him what it says. If somebody knows something about it, you can ask them about it. MS. WINDER: I'll withdraw my question at this point, Your Honor. THE COURT: Good, We're on the same wave length then. BY MS. WINDER: Q Mr. Hocker, would you please turn that exhibit over and look to see if there's any names stamped on the back of that? THE COURT: Again-- MS. WINDER: Your Honor, I would ask that he be allowed to testify to that information because it has to do with whether or not he knows about this exhibit. THE COURT: He's already said he doesn't 28 0f 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 r- know -- you can ask him to look at it. You can ask him if that refreshes his recollection as to whether he knows what that is, but if he has no idea what it is then you must get someone that knows what it is to authenticate it. Okay. You may look at the back. Does that refresh your recollection or does that give you any idea what that is? THE WITNESS: No, it doesn't tell me nothing. All that is is a rubber stamp. THE COURT: It doesn't matter what it is. Next question. BY MS. WINDER: Q Mr. Hocker, you said that you carried your checkbook in the truck; is that correct? A Yes. I did for 40 years. Q And from time to time you would have visited various suppliers and purchased things for jobs using that checkbook; is that correct? A Sometimes, Q And, in fact, that may have been the case in the months between February and May of 1991? A May I inform you again, I didn't write any of these checks that we have here. Q Can you answer my question? A What's your question? Q My question was whether or not you would 29 0(p 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 r- have visited various suppliers or purchased supplies using your checkbook in the period of February through May of 1991? A If I would have they would have been written by me. o And you say that you have no other checks on that account? A No, to my knowledge I don't have any. THE COURT: I didn't understand the question. BY MS. WINDER: o You don't actually have those checks? A What's that? o You don't have any of the other checks that would have been written on this account between February and May of 1991? A Mary Jane has them. o Mr, Hocker, in the time frame of February through May of 1991, you testified that you were working on the Habig job; is that correct? A I believe so. o And you further testified that on that job there were times that there were not payments received from the Habigs? A Beg your pardon? 30 q7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 "-', r-' Q There were some sorts of payments that were not received by the Habigs? A Correct. Q Were those invoices that you had billed them? A Yes. Q Did you bill them as Windsor Ridge Homes or did you bill them as John H. Hocker? A I don't recall. Q It could have been billed either way? A It could have been. Checks received went through Windsor Ridge Homes. Q And subcontractors needed to be paid? A Beg your pardon? Q And subcontractors needed to be paid? A Yes. Q Do you recall writing checks from the Windsor Ridge account? A No, I never did, Q Are you saying that you never wrote out any checks? A On the Windsor Ridge account? Q On the Windsor Ridge account. A No, I never wrote on any check account but my own, 31 q<t r- 1 (Whereupon, Defendant's Exhibits 2 and 3 2 were marked for identification.) 3 BY MS. WINDER: 4 Q I'll show you what I've had marked for 5 identification as Defendant's Exhibit Number 2, and 6 Defendant's Exhibit Number 3. 7 A Well, I couldn't have written those checks. 8 Q With respect to those two checks, Mr. 9 Hocker, I'm showing you what's been marked as Defendant's 10 Exhibit Number 2 for identification purposes. Can you 11 tell us what account that check is written on? 12 MR, ROMINGER: Your Honor, I'm going to 13 object to authentication at this point. 14 THE COURT: Overruled. 15 THE WITNESS: What is your question? 16 BY MS. WINDER: 17 Q The question was if you can tell us what 18 account that check was written on. 19 A It looks like Windsor Ridge Homes. 20 Q Okay. And who is it made payable to? 21 A Lewis Negley. 22 Q And what's the date? 23 A The 22nd of March, '91. 24 Q And the name on the check, Lewis Negley, and 25 the date, and the amount are all -- appear to be in the 32 qr, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 -, r- same handwriting; is that correct? A Be in what? Q Do they appear to be in the same handwriting? A Yes, Q And is that your handwriting? A No, that's Mary Jane's handwriting. Q All of it? A Yes. Q There's no part of that that appears to be in a different handwriting, with respect to Defendant's Exhibit Number 2, Mr, Hocker? A I didn't write any checks out of Mary Jane's account -- out of Windsor Ridge account. Q Mr. Hocker, let me direct your attention specifically to Defendant's Exhibit Number 3 that I've had marked for identification purposes, and ask you, again, the date and the person to whom the check is paid? A March 28th, '91, to Lewis Negley for $186,17. It sounds like a payroll check to me. Q And does that handwriting appear to be the same as the signature on the check? A That may be mine. I don't know how it happened, why she would have written the checks and gave them to me signed to pay the men that week. That's a 33 lev 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ,'"" r- weekly payroll check there. Q And you're saying that that is your handwriting on that check? A Where I filled in Lewis Negley and the 150 -- or 86 dollars. Q Now, going back to Defendant's Exhibit Number 2 that's been marked for identification purposes, does that check, what you've told us is made payable to Lewis Negley again? A Yes. Q Does the last name Negley -- A Yes. Q -- appear to be in a different handwriting than the rest of the writing? A It's not my handwriting. May I ask a question? THE COURT: No, you may not. THE WITNESS: I may not? THE COURT: You may not. Their job is to ask the questions. Your job is to answer the questions. THE WITNESS: Okay. Thank you. (Whereupon, Defendant's Exhibit No.4 was marked for identification,) BY MS. WINDER: Q Mr. Hocker, I'll show you what's been marked 34 Jb /, 1 2 3 4 5 6 7 8 9 10 11 12 13 r for identification purposes as Defendant's Exhibit Number 4, and ask you if you can tell us with respect to that check, first the account upon which it appears to be drawn? A Windsor Ridge Homes. Q And to whom it is payable. A Somebody by the name of John Grimes. I don't know that name, Q Okay. And on the memo line, can you tell us what it says? A It says porch roof, Habigs. Q Okay. Now does that refresh your recollection as to who John Grimes is? A Yes, I think that was the man who put the 14 rubber roof on for us. For Mary Jane, not for me. 15 16 17 18 19 20 21 22 23 24 25 Did you talk to Mr. Grimes about Q Okay. doing that work? A Yes. Q You made the arrangement for it? A Yes. Q And you agreed with him that the price would be $325,OO? A I don't know if there was an agreement on what the price was. Q Well, the check pays him $325.00, does it not? 35 I DJ., 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 it is. {' auditing your John H. Hocker, Contractor account? A Yes. Q And was that about the same time that Mary Jane received notice that the Internal Revenue Service was also auditing Windsor Ridge Homes? A Yes. (Whereupon, Defendant's Exhibit No.5 was marked for identification.) BY MS. WINDER: Q I'll show you what's been marked as Defendant's Exhibit Number 5 for identification purposes, and ask you if you know what that is. A Maybe you should tell me what this is. THE COURT: That wasn't the question. Do you know -- do you recognize that? BY MS. WINDER: Q My question is whether or not you know what 19 A Every so often I think they -- it's been so 20 long ago, I think they came around to audit my payroll. 21 Q Let me ask you first, does that appear to be 22 a letter? 23 24 25 A Q A Yes, it's a letter. From what office? Accounting office. 37 /64- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ,-..., r Q Okay. And it's dated what date? MR. ROMINGER: Your Honor, I'm going to object to the contents. He hasn't authenticated that that's something that he recognizes? THE COURT: Overruled. THE WITNESS: April the 2nd, 1992. BY MS. WINDER: Q And are there some handwritten words on that letter? A All that's written there is September the 1st. Q Okay. And do you recognize that as your handwriting? A I don't know whether it's mine or not. Q Is it possible that it's your handwriting? A It could be. This letter isn't to me. So I don't know why I would know so much about it. Q Well, you agreed that payroll accounts were audited; is that correct? A They've done that for 40 years. Q Did they do that in 1991? A I have no idea. Q Do you recall reviewing with Mary Jane Spencer the records of Windsor Ridge Homes for 1991 in preparation for an Internal Revenue Service audit? 38 lof 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .~ r A For who? Q For Windsor Ridge Homes, an audit by the Internal Revenue Service for the year 1991? A I don't understand you. Q Okay. I asked you previously if you were aware that the Internal Revenue Service had notified you of an audit of Windsor Ridge Homes 1991 tax return, and I believe your response was that you were? And I asked you if you had been the recipient of notice from the Internal Revenue Service of an audit of your own account for 1991, and I believe your response was that you were. Do you recall that? A Yes, I guess I do. THE COURT: Okay. When did you get notice of the IRS audits for those years, sir? THE WITNESS: I have no idea. THE COURT: Would it have been in the '92, '93 time frame? THE WITNESS: THE COURT: It might have been '91. Okay. So it was no later than '93. Is that a fair statement? THE WITNESS: Yes. THE COURT: Okay. And what Ms. Winder is asking is did you assist Ms. Spencer in preparing for the IRS audit for the Windsor Ridge Homes account? 39 jC(p 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ r- THE WITNESS: No, I did not. THE COURT: Okay. BY MS. WINDER: Q You don't recall discussing those financial records in preparation for that audit at all with Mary Jane Spencer. Is that what you're telling us? A Why would I discuss it with her? Q Well, Mr. Hocker, wasn't Mary Jane Spencer concerned about business receipts and monies and tax forms that were filed during 1991 in which you've told us you were involved in? A I wasn't involved in our own taxes, no. Q Didn't you tell us that you prepared forms for reporting of unemployment and workmen's comp for Windsor Ridge? A I did those because she didn't know how. Q And didn't you tell us that you were involved on the Habig job with subcontractors and taking care of payroll? A Yes, I did. Q So wouldn't it have been likely that Mary Jane Spencer asked you about those items when she was preparing for a tax audit of the Windsor Ridge Homes accounts? A That was her problem. It wasn't mine. 40 ~l 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 '""', r, Q Weren't there questions about moneys that were going between the John H. Hocker account and Windsor Ridge Homes? A What was that again? Q Weren't there questions about monies that had been transferred between the John H. Hocker account and Windsor Ridge Homes? A I stated I asked her a dozen times or more what happened to my money. Q My question to you, Mr. Hocker, was during the time of the preparation for this audit of Windsor Ridge Homes accounts for Internal Revenue Service, were there not questions raised by the IRS and by Mary Jane Spencer to you about monies flowing between the John H. Hocker account and Windsor Ridge Homes? A I didn't know that she was being audited for Windsor Ridge Homes. That's the first I heard that now. Q Mr. Hocker, I think your prior testimony was THE COURT: Next question. BY MS. WINDER: Q Mr. Hocker, you said you asked Mary Jane Spencer about monies that you received from a sale of a property; is that right? A What's the question? 41 IDt 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 '\ (' Q Did you tell us that you had asked Mary Jane Spencer about monies from the sale of a property? A Yes. Q Do you know when that happened, when the property was sold? A '95 or '96 or something like that. Q Well, do you know to whom the property was sold? A Yes, to an Amish man by the name of Smoltz (phonetic) or something like that. THE COURT: If it occurred in '95 or '96 how is it possibly relevant to this? MS. WINDER: Your Honor, I believe that actually wasn't that settlement in 1991? THE WITNESS: I don't believe. MR. ROMINGER: Your Honor, could we approach the bench for just a moment? THE COURT: Do you want this on the record? MR. ROMINGER: No. (Whereupon, a sidebar conference was held off the record.) THE COURT: Any other questions, Ms. Winder? MS. WINDER: THE COURT: No, Your Honor. Okay. Any redirect? 42 Ice, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .~ r MR. ROMINGER: I do have a bit, Your Honor. REDIRECT EXAMINATION BY MR. ROMINGER: Q John, you said that you questioned her about this money during the time of the disturbance. That's the time you moved out, correct? A Well, it was before that. Q Around 1996 -- 1995, 1996 when you were moving out, that's when the disturbance was, correct? A Yeah. Q Now, you carried your checkbook around with you to write checks, did you not? A Yes. Q That doesn't mean that you kept track of the balance, does it? A No, I never balanced it. Q Who balanced your checkbook and rectified the banking statements? A Mary Jane. Q We heard a little bit about the Habig project. You were the subcontractor in that, in the Habig -- A I guess I would be called subcontractor because I didn't have a contract with thum. Q So the money should have flowed from Windsor 43 lID 1 2 3 4 5 6 7 8 9 10 11 12 13 14 ,,- Ridge Homes to John Hocker, not from John Hocker to Windsor Ridge Homes, correct? A Yeah. MR. ROMINGER: THE COURT: I have no follow-up. Ms. Winder. And I apologize. I cut you off. If you were about to question him on whether or not the sale of the property took place in '91, I'll let you follow through on that, if he recalls. RECROSS EXAMINATION BY MS. NINDER: Q Mr. Hocker, do you recall any other events which surrounded the time period of your sale of that cabin property? A Yeah, I was in the process of getting a 15 divorce. 16 Q Was it shortly after or before the time of 17 the divorce decree that you sold the cabin property? 18 A I couldn't sell it until after the decree 19 came dO~lI1. 20 Q Okay. Do you recall the date of your 21 divorce decree? 22 A I think it was in '95 or something. 23 (Whereupon. Defendant's Exhibit No. G was 24 marked for identification.) 25 BY MS. WINDER: 44 III '---, ,,-, 1 Q Mr. Hocker, I'm going to show you what I've 2 had marked for identification as Defendant's Exhibit Number 3 6. I'll ask you if you can recognize that as a copy of a 4 complaint filed in this lawsuit. 5 THE COURT: Well, do we agree as to when the 6 divorce decree was entered? Is that what you're getting 7 at? Is that an allegation in the complaint? 8 MS. WINDER: No, it is not an allegation in 9 the complaint, Your Honor. 10 THE COURT: Okay. I'm just trying to 11 speed things up if we can. Is it at issue as to when the 12 divorce decree was entered? 13 MR. ROMINGER: I don't think it is. 14 15 16 17 18 19 20 21 Q Mr. Hocker, I want you to read paragraph 4 22 of that complaint, and I want you to read it for the 23 jurors. 24 A During the time they resided together 25 Plaintiff assisted Defendant in establishing a construction THE COURT: Is that what you're trying to get at? MS. WINDER: No, Your Honor, I'm not. THE COURT: Okay. Well, we know it's the complaint that was filed. What do you want to ask him with regard to that? BY MS. WINDER: 45 ( I.J-, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 '\ r business, Windsor Ridge Homes. As part of this assistance plaintiff authorized Defendant to write checks from his account to pay for Windsor Ridge Homes payroll and taxes. Plaintiff also performed labor for Windsor Ridge Homes. MS. WINDER: Okay. I have no other questions. BY THE COURT: Q The audit of Hocker Construction, the IRS audit that they were talking about, did you review your records and attend that audit? A Did I do what? Q You got notice of an IRS audit for Hocker Homes for 1991; is that correct? Yes. Okay. Did you go to that audit? Yes, I was at it. A Q A Q A Q A Q A Q you? A And did you take along your records? Okay. Yes. Okay. Did you review those records? With them. With the IRS? Yes. Did you go alone or did somebody go with I went -- well, my accountant was there with 46 1'3. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 '-, r- me. Q Okay. And who was that? A (no response.) Q You had an accountant. Is that what you're saying? A Yeah. Q Okay. And did you have an accountant throughout all of these years? A That did my income tax, yes. THE COURT: Okay. Any follow-up on what I've just asked? REDIRECT EXAMINATION BY MR. ROMINGER: Q Just your accountant wouldn't know what you had authorized the defendant to do with your funds or not, would he? Did you ever discuss with your accountant what you authorized the defendant to do with your funds or not to do with your funds? A No. Okay. No further questions. Ms. Winder, any follow-up on MR. ROMINGER: THE COURT: that line of questioning? RECROSS EXAMINATION BY MS. WINDER: Q Mr. Hocker, did you take your bank 47 I I 4- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 {'. statements and your check registers to that audit? A I guess I took something along. Q Did they ask you to bring your bank records for the year 1991? A I don't recall. Q That was the year that was being audited, was it not? A I believe it was. MS. WINDER: I have no other questions. THE COURT: Thank you, sir. You may step You're done. You may step down. Any other down. witnesses, Mr. Rominger? MR. ROMINGER: I have none, Your Honor. THE COURT: Okay. Are you moving for the admission of Exhibit Number I? MR. ROMINGER: I am. THE COURT: It is admitted. (Whereupon, Plaintiff's Exhibit No.1 was admitted into evidence.) THE COURT: Do you then rest? ~IR. ROMINGER: I do, Your Honor. THE COURT: Okay. Now is a good time to break for lunch, ladies and gentlemen. Okay. Keep an open mind. Do not discuss the case with anybody over the lunch hour, and we'll see you back at about 1:00. Be ready 48 1/5". 1 2 3 4 5 6 7 8 9 10 11 12 13 14 '-', r should do so now. MR. ROMINGER: THE COURT: MR. ROMINGER: I would object to -- Which ones? I would object to 5, 4, 3, 2, and 1. THE COURT: Okay. Number 6 is admitted without objection. Number 3 is admitted. The rest are not admitted. (Whereupon, Defendant's Exhibits 3 and 6 were admitted into evidence.) THE COURT: So if you could pass up Plaintiff's Number 1, and Defense Numbers 6 and 3. You may now make your motion. MS. WINDER: My motion, Your Honor, is for a 15 demurrer and for a directed verdict at this time based upon 16 the evidence as presented by the plaintiff. I believe 17 that the testimony shows that Mr. Hocker had access to his 18 business records during the time period of 1991 through 19 1993, which would be the running of the two year statute of 20 limitations, and based upon the statute of limitations, his 21 limit in time for having filed his action would have been 22 from the payment of the last check. ,23 THE COURT: what is the date that the 24 action was commenced? 25 MS. WINDER: The action was commenced May 50 117 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .~ "..-. 14th, 1997, Your Honor. THE COURT: Do you agree with that, Mr. Rominger? MR. ROMINGER: Yes, I do. THE COURT: Good enough. May 14, '97. Mr. Rominger, your response to the motion. MR. ROMINGER: Your Honor, uncontroverted in the record right now is that he didn't discover the checks until 1996. There's a question of fact that I think the jury needs to decide as to whether or not he had any actual access or control or knowledge that that was done at the time. THE COURT: But he's testified that he had access. MR. ROMINGER: He testified he wrote checks. THE COURT: And he testified he had the checkbook with the check register there, and that he had access to all of the statements. MR. ROMINGER: He then -- THE COURT: And that he was audited, and that he had an accountant, and that he went with his accountant to the audit. And even more importantly, that he asked her a dozen times before 1993 what happened to his money. MR. ROMINGER: I want to address all of 51 I' r 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 r those points, Your Honor. THE COURT: MR. ROMINGER: leeway on the record here. THE COURT: Sure, sure. MR. ROMINGER: First of all, he testified I didn't do the register. I didn't keep the book. He certainly rode around and wrote perhaps a check to buy some angle irons or a check to buy some nails. He dutifully returned the checkbook to the bookkeeper, in this case the defendant, who then rectified the statements, totaled the register, and that was in the record. And it's in the record that they had a close personal relationship, which would create a confidential relationship whereby I think the Court has to give more consideration to him entrusting her to rectify those things. Go ahead. I ask to be given a little I want to see cases on that, THE COURT: and I want it before 1:00. MR. ROMINGER: Okay. THE COURT: Okay? Go ahead. Next point. MR. ROMINGER: Then we move forward to when did he say he asked her about the money? He testified well, I asked her numerous times, and then on my redirect I said was that in 1995, '96, that you're talking about. He 52 114. --- ~ 1 said yes. 2 THE COURT: No, he didn't. I wrote it 3 down. He said it was before that, and then you said was 4 the separation in '96, the disturbance, and he said yes. 5 MR. ROMINGER: Yes. 6 THE COURT: And in response to my question 7 he was very clear what was the time frame that you asked. 8 Because I was concerned about that. And he said, as I 9 recall, '91 or '92, I have written down in my notes. In 10 that area, and it wasn't any later than that. 11 Now, you tried to rehabilitate him on 12 redirect, and you said the disturbance, '96, isn't that 13 when you questioned her. I questioned her before that. 14 And then was the disturbance in '96? And he said yes. 15 There was no follow-up on if that's when he questioned her. 16 MR. ROMINGER: However, during cross 17 examination he said it was at the time of the disturbance. 18 He then testified on my recross that the disturbance was 19 '96. There's a factual issue for the jury here. Did he 20 mean before as in 1991 or did he mean before as at the time 21 of the disturbance, which he testified to was '96. 22 Now, the defendant can take the stand and 23 tell us the disturbance was '93. I think the defendant 24 can take the stand and tell us the disturbance was '93 or 25 '91. 53 I~D ~ ~ 1 MR. ROMINGER: Right. He said during the 2 time of the disturbance. He then told us during redirect 3 the time of the disturbance was '96. I think, therefore, 4 that puts me at the point of discovery with the 5 questioning. 6 Then getting to the IRS audit. There's 7 nothing in the record about the audit and the exact 8 contents of that audit, what was went over, what actual 9 knowledge he would have, and whether or not his accountant 10 -- I submit to the Court when one goes to a tax audit, 11 that's just to see if your taxes are paid, not to make sure 12 that your employees weren't thieving you, not to make sure 13 that your bookkeeper didn't run out with some money. 14 THE COURT: Do you agree that you've got to 15 use due diligence in order for the discovery rule to apply? 16 Do you agree that that's the law? 17 MR. ROMINGER: I agree. However, and it's 18 going to be our position, and it is my position, that given 19 the confidential relationship, given the fact and I'll 20 provide -- I will get some cases, Your Honor, before 1. 21 Given the confidential relationship, the standard of 22 diligence is much different than if this was an independent 23 employee. 24 I certainly agree an independent employee 25 shouldn't be running off with tens of thousands of dollars 55 I~~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .- , r without it being discovered. However this was a small business run by a boyfriend and girlfriend out of a house. THE COURT: Exactly. MR. ROMINGER: He gave her the checkbook. THE COURT: We've got a small business, and you've got $54,000.00 in checks written in a 3 month period, and he's questioning where's my money going? And MR. ROMINGER: That was in '96 when he found out that he was being booted out of the house and he was penniless. THE COURT: I don't think that's what the record shows, but what I'm going to want you to do is to get those cases to me by quarter of 1. Any other argument you want to put on the record? MR. ROMINGER: Just that I believe we've prima facially shown our case, and that we've shown at least prima facially that he couldn't have discovered them until '96, and that it was a confidential relationship. He trusted this individual. This individual had control of the register and the rectification. If she wants to take the stand and rebut that during the defense case, that's fine, but there's enough of a question of fact here to get to the jury or at least to get to the defense case before Your Honor rules. 56 I1j ~ r 1 THE COURT: Okay. I'll take a look at 2 your cases, Mr. Rominger. Thank you. 3 (Whereupon, a lunch recess was taken at 4 11:55.) 5 AFTER RECESS 6 THE COURT: Okay. Over the lunch hour, 7 and we've gone a little longer than I had hoped to with the 8 jury waiting, but Mr. Rominger, the cases that you have 9 cited to me all deal with actions for the imposition of a 10 constructive trust, and they are equity actions, and I note 11 in this particular case, looking at the complaint that was 12 filed, it was filed at law. 13 There is no allegations of a confidential 14 relationship in the complaint, and I think what you're 15 trying to do is mix apples and oranges here. It's a case 16 filed of law. We have agreed that the statute of 17 18 19 20 21 22 defendant or the plaintiff can only rely upon the 23 discovery rule if he exercised due diligence in attempting 24 to discover the harm that was imposed upon him, and the 25 burden of proving that the statute of limitations should be limitations is, as we indicated earlier, controlled by Section 5524 of Title 42, and at the outset you had indicated that you're tolling of the statute of limitations was based upon the discovery rule. And as I read the discovery rule, the 57 1,),.4-. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~" r- grant the motion. So we'll enter the following order: Anything else before I enter the order? MR. ROMINGER: Just for the record, I think this is a case of first impression in Pennsylvania, and I'm looking at 64 ALR III -- or excuse me, 45 ARL III, page 630, for the body of what I think the jurisprudence out there is, and I just wanted to note that for the record. That's all. THE COURT: Okay. You have it for the record. It would have been nice to raise all of this ahead of time so we knew it as opposed to coming here at the last minute, and, again, I know it was an oversight, but if we would have had the benefit of being able to review that article pursuant to your brief that should have been filed, it might have been a lot more helpful, but we have a jury in the box and we are asked to make this determination, and we've made it. So we'll enter the following order: AND NOW, this 30th day of October, 2000, it appearing to the Court that the Defendant did not use due diligence in discovering the purported misappropriation of funds, the motion for is this a nonsuit? A demurrer? A directed verdict? What are we going to call this? A motion for dismissal? MS. WINDER: Dismissal. THE COURT: The motion for dismissal is 60 I J-7 '- <::l 1:; [~ :"1. "": Cl ':i ,.r ,:) " ,J '-, ...::.: ;<:1. '1 :::; ;- C-.J .F) ',j .-! ;-?: c~ '. ..;,... ;jtu ~.:; ..~~ '.l. '- ....~ ~.J C) (,) '.J ~ '\ r 97-2562 CIVIL TERM 9,200l.S This timely appeal followed. On appeal plllintiffelaims that a close confidential relationship existed between the Pllrties lInd that such relationship was sufficient to estop defendllnt from IIsserting the stlltute orJimitlltions.6 FACTUAL BACKGROUND PllIintirrwlls II general contractor who built residential housing,7 While he was married, his wife blllaneed his business eheckbook.s Aner he moved in with defendant, she took over the job of balancing tlmt eheekbook.9 Defendant also had authority to sign his business checks. to Plaintiffnormlllly kept the business checkbook and check register with him in his truck." The disputed checks were properly recorded in the check register.12 Plaintirrhad access to both the checkbook and check register at alltimes.13 In April of 1992, plllintirrreccived notice of an IRS audit for his construction business.14 He allended thatlludit with the accountant who had been involved in prepllring his business tax returns over the years.IS He took along his bank statements and check register,I6 'The proper motion would have heen for a removal oflhe non-suit. Pa. R.C.P. 230.1. 6 See "Brief Slatement of Mailers Complained of on Appea"" In his MOlion for New Trial, plaintiff also alleged that we erred in holding as a mailer oflaw that he did not exereise due diligence in discovering the alleged conversion of funds. Since this issue has not been raised in his "BricfStalcmclII of Mailers Complained of on Appeal." it is deemed to have been waived. In re' Eslate of Daubert, 757 A.2d 962 IPa.Super. 2000). Trial Transcript, p. 10. · Trial Transcript, p. 12. · Trial TrJnscript, p. 12. 10 Trial Transcript. pp. 12 - 13. 11 Trial Transcripl. pp. 24 - 25. 29. '2 Trial Transcripl, p. 25. II Trial Transcript, pp. 24 - 25. "Trial Transcript, pp. 38 - 39, 46 - 47. "Trial Transcript, pp. 46 - 47. '6 Trial Transcript, p. 47 - 48. 2 131.