HomeMy WebLinkAbout97-05472
4) In or about May 1994, Plaintiff Pease and Defendant
Higie, as joint tenants with right of survivorship, purchased real
property, composed of a one and a ha~f story dwelling house and a
parcel of land, located at 420 No. 21st Street, in Camp Hill
Borough, Cumberland county, Commonwealth of Pennsylvania. This
realty is in Dist. 01, Map 201854, Parcel 081, recorded in Book
105, at pages 923-5, and numbered under Deed No. 16239-E.
5) The Grantors
Pennsylvania corporation)
and wife.
were Montadale Associates, Inc. (a
and Steven Watts and Diane Watts, husband
6) The Chief Exec'Jtive Officer, or President, of Montadale
Associates, Inc. is Rob Edwards, Plaintiff Pease's brother-in-law,
and husband of Plaintiff's sister, Mary Pease Edwards. None of the
Grantors are related in any way to Defendant Higie.
7) The purchase price in May 1994 for the real property at
420 No. 21st Street was $88,700.00. This purchase price was well
below the fair market value of the realty at the time in view of
the good relationship between Plaintiff Pease and the Edwards'.
8) The down payment of $10,000 was entirely provided by
Plaintiff Pease from her personal monies without any contribution
from Defendant Higie.
9) Plaintiff and Defendant agreed that both parties were to
share the expenses of the household as follows: Defendant Higie
was initially primarily responsible for the monthly variable-rate
mortgage payment, which fluctuated between $675 and $850 (whiCh
included monies for insurance and taxes), while Plaintiff paid all
the utilities (oil, electric, TV, water, telephone, etc.), food,
and other living costs, and who also contributed to the monthly
mortgage payment, initially contributing about $100 per month, and
later contributing $300 per month or more toward the monthly
mortgage payment.
10) Through the years 1994 to 1997, Defendant Higie was not
continuously gainfully employed, since he acquired and lost several
jobs, was unemployed for prolonged periods of time, and had
diminished and interrupted and, at times, no income flow.
11) During the same period, Plaintiff Pease was continuously,
gainfully employed with one employer, Rite Aid Corporation, through
the present. As a result of Defendant's sporadic and inconsistent
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omployment, Plaintiff Pease had to assume the majority of the bills
for maintaining the household at 420 No. 21st street.
12) Living at th~ residence at 420 No. 21st Street, Camp Hill
from the period of June 1994 through March 1997 were Plaintiff
Pease, Defendant Higie, and Plaintiff Pease's son, Bryan Gruver,
then a minor, being born on February 3, 1980.
Count 11 Intentional Infliction of Emotional Distress: Assault.
Batterv: Stalkinq
13) Paragraphs 1 -12 are incorporated herein by reference and
are not repeated.
14) Throughout the period of late 1994 through March 1997 and
through the present, Defendant James Higie engaged in specific
incidents of intentional assaults, batteries, threats and
intimidation, and a pattern thereof against Plaintiff Karen Pease.
Such conduct was in reckless and willful disregard of Plaintiff's
rights and privacy as a person and joint tenant. These incidents
and the pattern thereof included, but are not limited to, choking,
pushing, shoving, restraining, physical force, intimidation,
stalking, and threats thereof.
15) Defendant's aforesaid misconduct resulted in causing
Plaintiff Pease severe physical and emotional distress from said
physical force and abuse, the threats thereof, along with repeated
and frequent verbal and mental abuse, humiliation, related
misconduct, and the constant fear and apprehension thereof.
16) Said physical, mental, and verbal abuse and resultant
emotional distress and physical and mental pain and suffering
caused Plaintiff to seek and retain the professional services of a
psychologist and other health care providers, as well as counsel
and assistance from family, friends and associates.
17) Defendant's reckless and intentional acts were not
limited to Plaintiff, but included acts against her minor son,
Bryan. Frequently, both Plaintiff and her minor son had to lock
themselves in interior rooms of the dwelling house for prolonged
periods of time to escape Defendant's intentional assaults,
batteries, and other acts designed to inflict severe physical and
emotional distress, and threats and constant fear and anxiety
thereof upon them.
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18) Plaintiff and her minor son lived in near constant fear
of Defendant's misconduct and oppression, especially when Defendant
was in a state of intoxication, a state in which he frequently
allowed himself.
19) Defendant's misconduct and oppression against Plaintiff
and her minor son was frequently witnessed by other family members,
relatives and friends and associates of the parties.
20) Defendant's intentional misconduct, mental and physical
abuse, and threats and fear thereof, as aforesaid, against
Plaintiff and her minor son rendered their continued use of and
habitation at the residence at 420 No. 21st street unbearable,
intolerable, adverse, hostile, physically dangerous, life-
threatening, and oppressive.
21) Due directly to Defendant's misconduct as aforesaid,
Plaintiff and her minor son involuntarily left the premises, due to
Plaintiff's oppression, threats, and physical and mental abuse, for
a one-week period in or about October 1996 and temporarily resided
with Plaintiff's sister in the cellar of her sister's residence.
22) Plaintiff and her minor son returned to the residence and
property that she jointly owned with Defendant to experience even
more unbearable physical, mental and verbal abuse from Defendant.
23) In or about March 1997, Plaintiff and her minor son
finally were forced to leave the premises at 420 No. 21st street,
Camp Hill and take up residence at 6 Marshall Drive, Ridley Park
Apartments, Camp Hill, a rented two-bedroom apartment. This has
caused Plaintiff increased expenses and living costs.
24) Since March 1997, Defendant Higie has continued his
abusive behavior by stalking Plaintiff Pease by following her, by
parking outside her dwelling place at 6 Marshall Drive, Camp Hill,
Pennsylvania on numerous occasions for prolonged periods, and by
trespassing on her premises at 6 Marshall Drive and at her work.
25) As a result of Defendant's assaults, batteries,
intentional infliction of emotional distress, and stalking,
Plaintiff Pease filed a charge against Defendant Higie with the
Office of Domestic Violence in Cumberland County seeking protection
from Defendant Higie's continuing abuse, assaults and intentional
infliction of emotional distress. The Honorable Judge Sheeley of
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the Court of Common Pleas issued a consent decree in that matter
which was signed by Defendant Higie on September 11, 1997.
26) One of the conditions of the consent decree voluntarily
signed by Defendant Higie and issued by JUdge Sheeley include that
Defendant refrain from being in or near the presence or residence
of Plaintiff" Pease, which is now at 420 No. 21st Street, Camp Hill.
WHEREFORE, Plaintiff prays the Court to enter judgment in her
favor against Defendant in an amount in excess of $25,000, plus
punitive and compensatory damages, interest, costs, and reasonable
attorneys' fees.
Count 21 UnlawfUl Conversion of Realty. Rents and Personaltv:
Theft bv Deception: Fraud
27) Paragraphs 1 - 26 are incorporated herein by reference
and made part hereof.
28) Defendant's aforesaid conduct in forcing Plaintiff to
leave the real property and dwelling place that she jointly owns
with Defendant constituted a breach of their recorded purchase
contract for the premises as joint tenants as well as an illegal
eviction of both herself and her minor son who are legally entitled
to occupy the premises at 420 No. 21st Street, camp Hill.
29) As a direct result of Defendant's intentional conduct and
breach of their real estate contract, Plaintiff has had to endure
greater costs from rents, utilities, and other expenses, as well as
loss of enjoyment of her household and other losses from
displacement of her residence.
30) Defendant's intentional breach of his real estate
contract with Plaintiff is evid&nced by the fact that he changed
the locks in July 1997 at 420 No. 21st street, Camp Hill so that
Plaintiff could not gain entry to the real estate and dwelling
place that she jointly owns with Defendant.
31) In early September 1997, Defendant Higie informed
Plaintiff Pease that he was abandoning the premises at 420 No. 21st
Street, Camp Hill to relocate to his mother's residence. Defendant
Higie abandoned the premises and the obligation to make mortgage
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payments in order to have the real estate foreclosed upon to
further punish and harm Plaintiff Pease.
321 Plaintiff Pease informed Defendant Higie that, despite
the add tional emotional and financial hardship imposed upon her by
his actions, she was assuming sole possession and control of the
premises at 420 No. 21st Street by the end of September 1997 in
order to prevent the mortgage and property from being foreclosed
upon. Defendant Higie agreed to this and to refraining from his
proximi ty to or entry on the premises for any reason, which
likewise comports with the letter and spirit of the consent decree
he signed on September 11, 1997 which enjoins Defendant Higie from
being in or near Plaintiff's presence or residence.
33) Defendant's willful and wanton conduct and breach of the
real estate contract between Plaintiff and Defendant and conversion
of joint and personal property has directly resulted in Plaintiff
suffering, inter alia, the following specific losses:
a) loss of the use and enjoyment of her residence
and the real property in which she is a joint tenant and
of which Defendant has prevented from using and enjoying;
b) loss of
Defendant collected
the premises;
c) loss of the use and possession of various
personal property owned entirely by Plaintiff, yet
wrongfully converted by Defendant to his own use, control
and possession, that Plaintiff has been unable use,
possess or control since she was forced to leave the
premises due to Defendant's misconduct and breach;
participation in rent monies that
and collects from renters living at
d) loss of monies from Defendant's wrongful and
fraudulent conversion of hazard insurance proceeds
(approximately $7,000) that were specifically intended
for repair and maintenance of the rp.al property at the
subject premises and that Defendant instead converted to
his own control and use;
e) loss of monies and good credit repute from
Defendant's wrongful and irresponsible use and conversion
of Plaintiff's personal credit cards;
f) loss of value to the realty and personalty
located at the subject premises due to Defendant's waste
and damage therein, including, but not limited to, holes
that Defendant intentionally punched into the walls and
other areas of the dwelling house, waste and damage
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es F. Higle
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4660 Trlndle Road
yBmp Hill, PA 17011
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5. Plaintiff's Entry of Default Judgment in the amount of $50.000.00. when not
requested in any such manner as contained within the Complaint, the same also not subject to
certain computation, is In direct violation of Rule 1037(b)( I) of the Pennsylvania Rules of
Civil Procedure.
6. Accordingly, the Default Judgment as it now stands contains a formal defect
on the face of the record as the same has been improperly entered in an amount not
requested within Plaintiff's Complaint, nor subject to certain computation as required by the
Pennsylvania Rules of Civil Procedure.
WHEREFORE, Defendant James F. Higie respectfully requests this Honorable Court
to Strike the Default Judgment as defective on its face.
II. PETITION TO OPEN DEFAULT JUDGMENT
7. Paragraphs 1 through 6 are incorporated herein by reference as if set forth in
full.
8. At the time of the filing of the within action and service of the same. Higie
resided with his mother at 215 North 17th Street. Camp Hill, Cumberland County.
Pennsylvania.
9. Approximately two days after service of the Complaint, on or about October
11. 1997, Higie contacted Plaintiff by telephone to inquire as to the nature of the lawsuit at
hand, at which time, Plaintiff expressly stated that she would drop the lawsuit if Plaintiff
remained away frem her residence which is one of the subjects of the Complaint.
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10. In accordance with her directives and statements that she would withdraw !he
present action, at all lime material hereto. Defendant remained away from Plaintiff's
residence as requested.
II. Despite her statements that she would drop the lawsuit, Plaintiff flied the 10-
Day Notice on or about Decemher 21, 1998, some fourteen and one-half months after filing
the within action.
12. Despite having actual notice and knowledge of Higie's then present mailing
address, Plaintiff mailed the lO-Day Notice and caused the Entry of Default Judgment notice
to be mailed to his prior place of business located at 4660 Trindle Road, Camp Hill,
Pennsylvania. The notice as addressed did not contain the name of Higie's prior business,
and the building at 4660 Trindle Road housed a number of different businesses. In fact,
Higie was longer employed at that address as of December 1997.
13. Higie never received the IO-Day Notice or notice of entry of the default
judgment. The envelope from the Prothonotary containing notice of entry of judgment is
located in the Prothonotary's file and is marked "Return to Sender". A copy of the envelope
is attached hereto as Higie's Exhibit" A".
14. For the reasons noted above, at all times material hereto, Defendant never
received a copy of the IO-Day Notice filed on or about December 21, 1998.
IS. For the reasons noted above, at all times material hereto, Higie never received
a copy of the Entry of Default Judgment in the amount of $SO,OOO.OO in this maller.
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16. As u result of correspondence and a Notice of Deposition received from
Plalntifrs counsel, it wus not until March 24, 1999 thatlligie became aware that the present
litigation remained an unresolved moiler.
17. Accordingly, under all the faclS and circumstances of the case, it is
respectfully submilled that Defendant had 0 reasonable excuse for any alleged delay In
answering the original Complaint.
18. Although Hlgie knew of the existence of the litigation in March of 1999, it
was not until April 24, 1999 that he first learned, through a third party, that a Default
Judgment had been entered in the above noted mailer.
19. Subsequent to receiving the March 24, 1999 correspondence from Plaintifrs
counsel, Higie and Plaintiff engaged in selllement negotiations and discussions concerning the
underlying action.
20. On 01' about April 30, 1999, Higie retained counsel for the first time to
represent his interests in this mailer as it was apparent that the parties were not going to
reach an amicable selllement regarding the same.
21. The present Petition to Strike and/or Open the Default Judgment is being filed
less than ten (10) days after Higic learned that Plaintiff refused to voluntarily open the
Default Judgment entered in this mailer.
22. Based upon all the facts and circumstances set forth above, it is respectfully
submilled that the present Petition is being filed in a timely manner.
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23. If permitted to open the Default Judgment in this case, Higie wl11 file an
Answer with New Matter slIbslantlally In the form of that auached hereto as Higie Exhibit
"8", which pleading is Incorporated herein by reference as If set forth In full.
24. In his proposed Answer with New Mauer, Hlgle raises the following
meritorious defenses:
(a) Plaintiff's allegations and causes of aclion sounding in tort are barred
by the applicable statute of limitations.
(b) At all times material hereto, Defendant never engaged in any
intentional, reckless and/or willful acts of abuse, assault, harassment,
infliction of emotional distress and/or stalking toward Plaintiff or her
minor son.
(c) Any and all allegations of abuse and/or oppressive conduct directed
toward Plaintiff's minor son are barred. as he has not been named a
party in interest to the within action.
(d) Plaintiff's allegations and causes of action sounding in breach of
contract regarding the parties property purchase contract are barred by
the statute of frauds.
(e) Until such time as Defendant removed himself from the property in
question, he made all mortgage payments as originally agreed between
the parties.
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(I) Throughout the parties tenancy and contrary to the parties agreement
otherwise, Defendant was often times forced to pay the household
utilities and living costs.
(g) Plaintiff hreached the parties agreement wherehy she was to pay any
and all utilities and living costs associated with the property, as well as
contribute to the mlll1gage payments regarding the same.
(h) Plaintiff's allegations and causes of action sounding in breach of
contract are barred as a result of her prior breach of the same.
(I) As a result of the parties subsequent agreement in September of 1997,
Plaintiff assumed sole control, possesslon and liability for all expenses,
including the mortgage, utilities and repairs regarding the premises in
question.
(I) Plaintiff's Complaint fails to state a cause of action for which relief can
be granted.
(k) Plaintiff's causes of action are barred by the doctrines of waiver,
estoppel and consent.
(I) At all times material hereto, Plaintiff and her minor son were welcome
to reside in the residence which is the subject malleI' of the within
action.
(m) At no time during the parties tenancy did Defendant remove, evict or
force the Plaintiff to leave the premises in question.
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(n) Plaintiff voluntarily removed herself and her minor son from the
premises, as it Is believed and therefore averred that she became
romantically involved with another man.
(0) Defendant never converted nor wrongfully possessed any personal
property of the Plaintiff, and at all times material hereto, any use of
Plaintiff's property was with her permission and consent.
(p) Defendant never destroyed or wasted the property in question.
(q) The insurance proceeds were properly used to repair the damage to the
residence sustained by water damage to the same, the remainder of
which was subsequently used to make overdue mortgage payments on
the property and to pay for Plaintiff's rent.
(r) Plaintiff has failed to set forth any monetary losses associated with, or
incurred as a result of Defendant's alleged tortious actions and breach
of contract.
(s) Plaintiff has failed to set forth or plead any physical hann or emotional
distress suffered as a direct result of Defendant's alleged tortious
conduct or breach of contract.
25, Accordingly. it is submitted that under all the facts and circumstances of this
case, Higie has presented numerous meritorious defenses which require the opening the
Default Judgment.
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within Paragraph 4 of Plaintiff's Complaint as the same are legal conclusions to which no
responsive pleading is required. Strict proof thereof is demanded at time of trial.
5. Admiued in part and denied in part. It is admiued that the grantors of the
property were Montadale Associates, Inc., Steven Waus and Diane Watts, husband and wife.
After reasonable investigation, Defendant is without knowledge or information sufficient to
form n belief ns to the truth of the averment that Montadnle Associates, Inc. is a
Pennsylvania corporation. Strict proof thereof is demanded at time of trial.
6. Admiued.
7. Admitted in part and denied in part. It is admiued that the purchase price in
May of 1994 for the real property located at 420 21st Stl'eet, Camp Hill, Cumberland
County. Pennsylvania was $88,700. It is denied that this purchase price was below the fair
market value of the property in question. By way of further answer, the property in question
needed extensive repairs and it is believed and therefore averred that the fair market value of
the property was, in fact, $88,700.
8. Admitted. By way of further answer, Defendant Higie provided $5,000
toward the closing costs associated with the purchase of the realty in question.
9. Admiued. By way of further answer. Plaintiff often failed to contribute to the
monthly mortgage payment, and at times failed to pay for the household utilities and living
costs as agreed between the parties.
10. Admitted in part and denied in part. It is admiued that at times, Defendant
was without gainful employment. It is denied however that he was unemployed for
prolonged periods of time, and in fact Defendant received unemployment compensation
2
15. Denied. The allegations contained within Paragraph 15 of Plaintiff's
Complaint are conclusions of law to which no responsive pleading is required. To the extent
a response is deemed necessary. Defendant denies that he engaged in any conduct that
resulted in Plaintiff's alleged physical and emotional injuries. By way of further answer,
Defendant denies that Plaintiff has. in fact, suffered any of the aforementioned injuries as
contained within Paragraph 15 of the Complaint. Strict proof thereof is demanded at time of
trial.
16. Denied. The allegations contained within Paragraph 16 contain conclusions of
law to which no responsive pleading is required. To the extent that a response is deemed
necessary, Defendant is without knowledge or information sufficient to form a belief as to
the truth of the averments contained within said paragraph. Strict proof thereof is demanded
at time of trial.
17. Denied. The allegations contained within Paragraph 17 are conclusions of law
to which no responsive pleading is required. To the extent a response is deemed necessary,
Defendant denies that he engaged in any reckless and/or intentional acts to harm Plaintiff and
her minor son, Bryan Gruver. By way of further answer, Defendant denies that Plaintiff and
her minor son were forced to lock themselves in the interior rooms of the parties' residence
as there were no locks on any interior doors throughout the residence.
18. Denied. Defendant denies that he engaged in any misconduct or oppressive
behavior toward Plaintiff and her minor son. By way of further answer, Defendant is
without knowledge or information sufficient to form a belief as to the truth of the remaining
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averments contained within Paragraph 18 of Plaintiff's Complaint. Strict proof thereof is
demanded at time of trial.
19. Denied. Defendant denies that he engaged In any misconduct or acts of
oppression toward Plaintiff and her minor son. By way of further answer, Defendant is
without knowledge or information sufficient to form a belief as to the truth of the remaining
averments contained within Paragraph 19 of Plaintiff's Complaint. Strict proof thereof is
demanded at time of trial.
20. Denied. The allegations contained within Paragraph 20 of Plaintiff's
Complaint contain legal conclusions of law to which no responsive pleading is requiroo. To
the extent that a response is deemed necessary, Defendant denies that he engaged in any
intentional misconduct or oppressive acts toward Plaintiff and her minor son. By way of
further answer, Defendant Is without knowledge or information sufficient to fonn a belief as
to the truth of the remaining averments contained within Paragraph 20 of Plaintiff's
Complaint. Strict proof thereof is demanded at time of trial.
21. Denied. Defendant denies that he engaged in any misconduct or oppressive
behavior directed toward Plaintiff and her minor son. Furthermore. Plaintiff's departure
from the property in question was completely voluntary in nature. By way of fUlther
answer, Defendant is without knowledge or information sufficient to form a belief as to the
truth of the remaining averments contained within Paragraph 21 of Plaintiff's Complaint.
Strict proof thereof is demanded at time of trial.
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22. Admitted in part and denied in parI. It is admitted that Plaintiff and her minor
son voluntarily returned to the residence. It \s denied however that Defendant engaged in
any intentional misconduct or oppressive behavior toward Plaintiff and her minor son.
23. Admilled in part and denied in parI. It is admitted that Plaintiff and her minor
son removed themselves from the premises at 420 21st Street, Camp Hill, Cumberland
County. Pennsylvania. It is further admilled that Plaintiff and her minor son moved to 6
Marshall Drive, Ridley Park Apartments, Camp Hill. Pennsylvania. It is denied however
that Defendant forced the Plaintiff and her minor son to leave the property in question. By
way of further answer, it is believed and therefore averred that Plaintiff was romantically
involved with another man and voluntarily left the residence. After reasonable
investigations. Defendant is without knowledge or information sufficient to form a belief as
to the remaining averments contained within Paragraph 23 of Plaintiff's Complaint. Strict
proof thereof is demanded at time of trial.
24. Denied. The allegations contained within Paragraph 24 contain legal
conclusions to which no responsive pleading is required. To the extent a response is deemed
necessary, it is specifically denied that Defendant engaged in any abusive or oppressive
behavior to Plaintiff.
25. Admitted in part and denied in part. It is admitted that a consent decree was
signed by Defendant on September II, 1997. It is denied however that Defendant engaged
in any IIbusive or oppressive conduct toward Plaintiff. By way of further answer, the
consent decree entered by the Court of Common Pleas of Cumberland County contains no
finding or admission of abuse and/or liability on behalf of Defendant.
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averments contained within Paragraph 29 of Plaintiff's Complaint. Strict proof thereof is
demanded at time of trial.
30. Denied. The allegations contained within Paragraph 30 of Plaintiff's
Complaint contain legal conclusions to which no responsive pleading is required. To the
extent a response is deemed necessary, Defendant denies that he changed the locks on the
premises to prohibit Plaintiff from entering the same.
31. Denied. The allegations contained within Paragraph 31 of Plaintiff's
Complaint contain legal conclusions of law to which no responsive pleading is required. To
the extent a response is deemed necessary, Defendant voluntarily left the premises at 420
21st Street, Camp Hill, Cumberland County, Pennsylvania to relocate to his mother's
residence. By way of further answer. as a joint owner in the property, Plaintiff at all times
material hereto remained liable to pay the mortgage on the same, regardless of any prior
agreements entered into between the parties.
32. Admitted. By way of further answer, Defendant has refrained from entering
the premises in question.
33. Denied. The allegations contained within Paragraph 33(a) through (g) are
legal conclusions to which no responsive pleading is required. To the extent a response is
deemed necessary, Defendant avers the following:
(a) It is denied that Plaintiff suffered a loss of use and enjoyment of the residence
and real property in question. By way of further answer, Defendant has not
prevented or prohibited her from using and enjoying said property;
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(b) Defendant denies that he has collected and continues to collect rent from third
parties living at or upon the premises in question;
(c) Defendant denies that he has converted any personal property of Plaintiff and
that he compelled her to leave the premises in question. By way of further
answer, Plaintiff has failed to set forth with any specificity those items of
personal property she claims to have lost the use and possession of;
(d) Defendant denies that he has improperly converted any insurance proceeds as
alleged. By way of further answer, the insurance proceeds were used to make
necessary repairs to the property in question, the remainder of which was used
to pay the overdue mortgage payments on the property;
(e) Defendant denies that he has improperly and wrongfully used Plaintiff's
personal credit cards without her consent to do so;
(t) Defendant denies that there has been any loss of value to the realty in question
and that he wrongfully converted the hazard insurance proceeds which were
used to make repairs to the home as referenced above; and
(g) Defendant denies that Plaintiff has suffered any loss related to his use and
alleged nonpayment of the utilities associated with the property. By way of
further answer, the parties' agreement as outlined within Paragraph 9 of
Plaintiff's Complaint provides that Plaintiff is responsible for all utilities and
living costs, including but not limited to oil, electric, TV, water and telephone
bills.
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34. Denied. The allegations cOnlained within Paragraph 34 of Plainliff's
Complainl contain legal conclusions to which no responsive pleading is required. To the
extenl that a response is deemed necessary, Defendant denies that he has engaged in any
wrongful conversion, fraud, misrepresentation. theft, deception and intentional misconduct
toward Plaintiff and the property in question. By way of further answer, Defendant denies
that Plaintiff has suffered any losses associated with said alleged acts.
WHEREFORE, Defendant James F. Higie, respectfully requests this Honol'able Court
to dismiss Plaintiff's Complaint in full and enter judgment in his favor.
NEW MATTER
3S. Paragraphs I through 34 are incorporated herein as if set forth in full.
36. Plaintiff's allegations and causes of action sounding in tort are barred by the
applicable statute of limitations.
37. At all times material hereto, Defendant never engaged in any intentional,
reckless and/or willful acts of abuse, assault, harassment, infliction of emotional distress
and/or stalking toward Plaintiff or her minor son.
38. Any and all allegations of abuse and/or oppressive condact directed toward
Plaintiff's minor son are barred, as he has not been named a party in interest to the within
action.
39. Plaintiff's allegations and causes of action sounding in breach of contract
regarding the parties property purchase contract are barred by the statute of frauds.
10
40. Until such limt: as Defendant removed himself from the property in question,
he made all mortgage payments as originally agreed belween the parlles.
41. Throughout Ihe parties tenancy and contrary 10 the parlies agreement
otherwise, Defendant was often limes forced 10 pay the household utilities and living costs.
42. Plaintiff breached the parties agreement whereby, she was 10 pay any and all
utilities and living costs associated with the property, as well as contribute to the mortgage
payments regarding the same.
43. Plaintiff's allegations and causes of action sounding in breach of contract are
barred as a result of her prior breach of the same.
44. As a result of the parties subsequent agreement in September of 1997, Plaintiff
assumed sole control, possession and liability for all expenses, including the mortgage,
utilities and repairs regarding the premises in question.
45. Plaintiff's Complaint fails to state a cause of aClion for which relief can be
granted.
46. Plaintiff's causes of action are barred by the doctrines of waiver, estoppel and
consent.
47. At all times material hereto, Plaintiff and her minor son were welcome to
reside in the residence which is the subject mailer of the within action.
48. At no time during the parties tenancy did Defendant remove, evict or force the
Plaintiff to leave the premises in question.
49. Plaintiff voluntarily removed herself and her minor son from the premises, as
it is belie~ed and therefore averred that she became romantically involved with another man.
11
5. Denied. Purugruph 5 is u conclusion ofltlw to which no respunsive pleuding is
required. By wtly of n further llllswer, Plnintill' incurporntcs her respunsc tu pnrugruph 4 ns
though it were setl'i.lrth utlength.
6. Denied. To the contrury. PlaintilT contends thtltthe dclilult judgmelll docs not
contnin a limllnl detect on its Illce of thc rccord. and that it htls been propcrly entered ngainst
Delcndnlltlligie. Plaintiff further c~lIltends thatthc Prothonotary nsscssed the damages tllr the
Plaintiff as a sum certain or subjecttu ccrtnin computation as rcquircd by the Pennsylvania Rules
of Civil Procedure. However. if this Hunoruble Court determlncs thutthcre \Vns nut a sum certnin
or it could not have been made certain by computatiun. then Plnintiff. in the nlterllntive. avers
that damages should be assessed at a trial at which the issues shall be limited to the nmount of
damages pursuant to Pa.R.C.P. 1037(b).
WHEREFORE. Plaintiff Karen Pease respcctfully requcsts that this 1I0norable Court
deny Defendant's request to Strike the Default Judgment.
7. Paragraphs I through 6 arc incorporatcd herein as if set forth at length.
8. Admitted. It is admitted that at the timc of tiling this action Defendant Uigie resided
at his mother's residence located at 215 North 17'h Street. Camp Hill. Cumberland County.
Pennsylvania. By way ofa further answer. DelcndantHigie's place of business. ut the time of
filing, was 4660 Trindle Road, Cnmp lIill. Cumbcrland County, Pennsylvania.
9. Admitted in part; Denied in part. It is admitted thatapproximatcly two days aner
service of the Complaint. on or about October II. 1997. Delcndantlligic, in violation of Judge
Sheely's Temporary Restmining Order, telephoncd l'lailltiff Pease 10 verbally nbuse her, threaten
her with physical harm and inllictmcntalanguish all ill an efli)rtto havc Plailltiff withdrnw the
Compluint. It Is strictly dcnicd thut Plaintifl" Pcuse in uny wuy stutcd thut she would drop thc
luwsuit if Dclendunt rcmuincd L1WUY frum hcr rcsidcncc. To thc contntry, Pluintifl" cxprcs,sly
stutcd thut she wus going to pursuc ulllcgLlI rcmcdics L1vullublc. LInd thut shc hud u Protcction
thllll Abusc Ordcr which statcd lhut "Del~ndmJ\ Illigiel wus to refruin Irom huving uny direct or
indircct contuet with the Pluinliff [PeuseJ including hUlnotlimited lo. tclcphonc und writtcn
communicutions. This Temporary Order wus mude permunenton Scptember II. 1997. (A copy
ofthc Temporury Restraining Order is uttuched hcrclo und incorporatcd herein as Exhibit "A".)
10. Dcnicd. It is spceil1cully dcnied tllUtthe Plaintiff directed or statcd that shc would
withdruw hcr !egul action against Dclenduntlligic ifhc n:muined away frumlhe propcrty. To
thc contrary. Plaintiff at ulltimes statcd that shc would pursue alllegul rcmcdics avuilablc to hcr
including but not Iimitcd to taking a dcfault judgment. Plaintiff incorporatcs hcr rcsponse to
paragraph <) as though it was sCllorth atlcngth.
II. Admitted in purt; dcnicd in part. It is admitted that Plaintiff did not receive notice
from the Defendant or Detcndunt's Icgal counsel within thc twcnty (20) day timc period. as
required by thc Pennsylvania Rulcs of Civil Proccdure. to rcspond to thc Complaint.
Specifically. Default Judgment wus entered becausc an Answcr hud not becn filed and no request
for an cxtcnsion oftimc had bccn madc within thc fi.llIrtccn und onc-half months tollowing the
servicc of thc Compluint. As rcquircd by the Pcnnsylvania Rules of Civil Proccdure. Plaintiff
Pease mailed thc Noticc of Intcntion to File Dcfaull Judgmcnt and tiled a copy with the
Cumberland Counly Prothonotury on or about December 21. 19<)8. During the tcn (10) day time
pcriod as well as the prcccding fourteen and one-half month timc period. Dclcndant Higic never
attempted to obtain counscl. nevcr uttcmpted to dct~nd the luwsuil Lind/or never uttcmpted to
tile. It is denied that Detendunt Bigie never received the Tcn (10) day Notice or had knowledge
of the cntry of Default Judgment. To thc contrury,Plaintlll'scnt the Ten (10) day Notice. as
required by the I'ennsylvaniu Rules of Civil Procedure, to Detendantlligie's lust known business
address. This notice wus never returned and. pursuant tol'a.R.C.P. 440(2). is deemed to be
served upon mulling. In udditiun, I'lainliffcontends thai Ddendantlligie did nut exercise due
diligence in dc/ending this matter and. thcrdllre. his Petition to Open the Dduult Judgment
should also be denied.
14. Denied. For the rcasons noted above. Defendant had knowledge of the Ten-Day
Notice. und despite this knowledge. Ddendant lIigie fuiled to respond. use due diligence or in
any way protect his legal interests.
IS. Denied. To the contrary. Plaintiff contends that despite Ddendant !ligie's
knowlcdge of the Complaint. which was a properly endorsed notice 10 plead, and Notice of
Intention to tile De/ault Judgment. Defendant elected not to respond to the Complaint or use
reasonable due diligence in protecting his legal interests.
16. Admitted in part: denied in part. It is admitted that Plaintiff's counsel sent
Defendant !ligie a letter which expressly staled that ajudgment had been entered against him.
Said letter also enclosed a Subpoena and Notice of Deposition flU April 24. 1999. It is denied
that Defendant !ligie did not have knowledge that the litigation was unresolved prior to March
24. 1999.
Specifically. Plaintiffs prior counsel sent 1'"lr. Iligie a lettcr dated December 8, 1998
informing Defendant lIigie of his represcntation. This letter expressly states "The first matter
concerning you is the house which my client and you purchased located at 420 N. 21" Street,
Camp Hill, PA. There ure several issues pertuining 10 the house whkh ure of the utmost
importunce und need to be resolved in a quick und timely fushion, Therclore, I am contacting
you in the hope of discussing these matters in greuter detail in order to reach an amicable
solution," (See Bruin S, Wulk's letter dated December 10. 1998 attuehed hereto and
incorporated herein as Exhibit "D"), Furthermore. Plaintiffs current counsel's letter cxpressly
stated that ajudgmcnt had been entered against Defendant Higie und Ihat PlaintiffPcase has a
legal right to discover his assets and liquidate the same to enforce paymcnt of this judgment. Mr.
Higie signed the allached Cerlified Mall Return Receipt Card. which accompanied said letter,
(See a copy of Plaintiffs counsel's letter dated March 24. 1999 and Return Receipt Requcsted
Card attached hercto and incorporated herein as Exhibits "E" & "F"),
Despite Defendant counsel's assertion thut Dcfcndant Higie did not have knowledge until
March 24. 1999, Dcfendant Higie. on three occasions prior to March 24, 1999, wrote Plaintiff
regarding the litigation, In his third letter. Delendant Higie repeatedly acknowledges the
litigation and indicates that he docs not want to retain a lawyer, Accordingly, Defendant Higie
had knowledge prior to March 24, 1999,and despite this knowledge, elected not to protect his
legal interests and/or excrcise due diligence in protecling his legal rights, (See Defendant
Higie's third letter attached hereto and incorporated herein as Exhibit "0"),
17, Denied. To the contrary. Defendant Higie has not established that he has a
reasonable excuse or explanation for his delay in acting promptly and with reasonable dispatch to
carry out his responsibility as required by the law despite a clear underst:mding of the
consequences of his failure to act.
18. Dcnied. To Ihc conlrury, Dclcnduntlllgie leumcd of II L1elllllll JlIllllcmcntlnken
uguinsl him on or beforc Murch 24, 1l)1)l), By wuy of II furthcr llllswcr. PluintHr Incorporutes her
. response to purugruph 16 us though il were fully sctlilrth ullcngth.
19, Dcnied. Pluinllff und Delcndnnl wcrc Ilot enguged In sClllelllentncllotlullons, By
wuy ofu further unswer.lhe deposition ofJllllles IIlgic wos scheduled lilr April 24. 11)1)l) in un
allemplto locnle his ussels, From Murch 24, I t)l)l) through April 2(>. 1l)IJl). despite hllvlng lhc
knowledge of Ihe delimit judgment and pcnding deposition. DelctI\lantlllglc did not conlnct
Plaintill's counselor take nny nflirmullve steps 10 prlltect his legnl illtcrcsts, On April 24, 11)l)l).
the dutc uf Delcndantlligie's deposition. Mr, lligie did notllppellr. hut instend elected to hnvc u
woman named "lle[lther" COnlnct Plulntltrs counsel illnn efli'rt tll cOllcell1 his wherellhouts,
This wuman slmed Ihut Delcndanllligie had receivcd nolke of the Judglllenlllnd ~uhpoellu. hut
decled 10 leave lown "on un emergency," (A copy of the Suhpocna. Notke of Deposition uml
Deposilion transcripl daled April 24. 1l)1)1) ure nllached heretonnd Incorporuled herclnlls
Exhibils "II". "I" & "J"), Only nner Plalnliffs counsel intlmlled "lIclllher"thul Pllllllllffwould
seek a court Ordcr enforcing the subpucna requiring hilll tOllppellr did Delclldllnlllllllc eonlncl
PlaintilTs counsel on April 26. 191)9.
20, Admilled in pnrl; Denied in pnrl. It is Ildmilled Ihat despile being serveLl with the
Complainl whkh wns endorsed wilh a nolice 10 plelld. Ihe ten ( 10) dllY nolice nnd kllowledllc of
Ihe defaulljudgemenl. Defcndanllligie did not relain counsd ulllil Aprll.10. II)'JI). sOllle filllr
monlhs aner gaining knowledge of the I Jcfillllt .Iudglllenlnnd sixlL'en (I ()) nlUnlhs Illler being
served wilh Ihe Cumplaint. It is strictly denied thallhe pnrlies cntered intollny selllemcnl
negolialions,
21. Denicd. To the contrary, Dclendant Hlgic hud notice ofthc Dctilult Judgment on
or belorc March 24, 1999. Accordingly. [ktendantlligic's Pctition to Strike and/or Open the
Default Judgmcnt was not tiled within ten (10) days aftcr Delendunt lligie learned of the Default
Judgment cntered in this mattcr. By way of a furthcr answer, Plaintiff incorporates hcr response
to paragraph 16 as though it wcre tillly sct forth atlcngth.
22. Dcnicd. To thc contrary. Plaintiff Peuse asscrts that Dclendant Higle, despite
having knowlcdge of thc Complaint. thc tcn (10) day noticc and entry of default Judgment, did
not filc his pctition to Strikc and/or Open the Dct:1Ult Judgmcnt in a timely manncr.
23. Admittcd in part; dcnied in parI. Paragraph 23 is admitted to thc extent that
Plaintiff has attached a copy of his AnsIVcr and Ncw Matter as Exhibit "B". It is spccifically
denied for thc abovc stated rcasons that this Honorable Court should grant Dcfendant's Pctition
to Strike and/or Open thc Default Judgment und/or permit Defendant Higie to tilc his Answer
and New Matter.
24. Admittcd but with qualifications. Paragraph 24 and its subparagraphs (a)-(s) are
admitted, but only for thc purposcs of this Petition. to the extent that Defcndant has stated a
potentially meritorious defense. However. Defendant has failed to establish that he filed a
petition promptly after receiving notice of thc dcfault judgment in addition to providing a
reasonable explanation or excuse for the dcfault.
25. Denied. To the contrary. Dctendant Higie's Petition to Strike and/or Open the
Default Judgment should be denied because he has failcd to establish that he timely tiled a
pctition after receiving notice of thc default and failcd to demonstratc a reasonable explanation or
excuse for his default.
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3
(Five documents were marked as Plaintiff's
Exhibit Numbers 1 through 5.)
MR. GODFREY: My name is Ralph Godfrey from the
firm of Metzger, Wickersham. I represent Karen Pease in
the case of Karen Pease versus James Higie. It's docketed
in Cumberland County at 97-5472.
We had sent a notice of deposition with a
certificate of service attached, which will be Exhibit 1,
to James F. Higie at PO Box 132, Camp Hill, PA 17001,
dating his deposition for April 26, 1999, beginning at ten
a.m. The notice of deposition was dated March 24th and
mailed out on March 24th.
Along with the notice of deposition was a
subpoena, which was marked as Exhibit 2, to James F. Higie
at the same address.
As Exhibit 3, there was a signature card signed
my James F. Higie acknowledging receipt of the subpoena
pursuant to the Pennsylvania Rules of Civil Procedure.
Approximately five minutes before the starting
of the deposition, I received a phone call from a young
lady named Heather. She refused to give her l~st name,
She instructed that Mr. Higie did receive the subpoena but
had left town and left no further instructions that he
would be appearing.
Also included with the notice. of deposition of
GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577