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HomeMy WebLinkAbout03-0251LORI A. DANIELS, Plaintiff EDWARD R. MYERS, III, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-- CIVIL ACTION - LAW NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days at~er this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defense or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE Tl:ll~q PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE ~ OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL I-IELP. LAWYER REFERRAL SERVICE OF THE CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVE. CARLL.qLF~, PA 17013 (717) 249-3166 NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siquinetes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la torte en forma escrita sus defenses o sus objectiones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una arden contra usted sin privio aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero a sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI TO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA FaN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. LAWYER REFERRAL SERVICE OF THE CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVE. CARLISLE, PA 17013 (717) 249-3166 LORI A. DANIELS, Plaintiff EDWARD R. MYERS, III, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA ; : : NO. ~>~ ~ : : : : CIVIL ACTION - LAW COMPLAINT And now comes Plaintiff, Lori A. Daniels, by and through her attorneys, Law Offices of Craig A. Diehl, and files this Comphint, respectfully stating in support thereof the following: 1. Plaintiff is Lori A. Daniels, an adult individual who currently resides at 32 Greenmont Drive, Enola, Cumberland County, Pennsylvania 17025. 2. Defendant is Edward R. Myers, III, an adult individual whose current mailing address is 340-128 East Penn Drive, Enola, Cumberland County, Pennsylvania 17025. 3. In or about October, 1999, the parties entered into an oral contract. 4. The oral comract between the parties provided that Plaintiffwould loan to Defendant the sum of Sixteen Thousand Five Hundred and 00/100 ($16,500.00) Dollars and Defendant would pay to Plaintiffprincipal and interest at an annual interest rate of nine percent (9%). 5. No writing of the temps of the contract exists between the parties. 6. Plaintiffdid loan to Defendont the sum of monies indicated herein. 7. Defendant made payments for principal and interest due that varied in amount and t~equency. 8. On occasion, Defendant's paymems were untimely. 9. Defendant's recent payments, when made, have been limited to Two Hundred and 00/100 ($200.00) Dollars each month. 10. As of December 7, 2002, Defendant owed Plaintiff the principal sum of Twelve Thousand Fourteen and 77/100 ($12,014.77) Dollars, plus interest accruing at a rate of nine percent (9%) per annum. 11. Plaintiff has repeatedly demanded that Defendant pay the total principal and interest due in full. 12. Defendant has failed and/or refused to pay the total principal and interest due under the terms of the omi note. 13. Plaintiff now seeks judgment against Defendant for the total sum due under the parties' oral contract for money loaned. 14. The amount in controversy in this proceeding does not exceed the compulsory arbitration limits of Cumberland County Local Rule 1301-1. WHEREFORE, Plaintiff, Lori A. Daniels, respectfully requests that this Court enter judgment for Plaintiff and against Defendant for the sum of Twelve Thousand Fourteen and 77/100 ($12,014.77) Dollars plus interest at an annual rate of nine percent (9%), the cost of this proceeding, and such other relief this Court deems just and proper. Dated: LAW OFFICES OF CRAIG A. DIEHL Li}da A: (~lotfelter, Esquir~'~ ~3t°mey I~3464 Trin~/eNR°~ 7ad2963 Camp Hill, PA 17011 (717) 763-7613 Attorney for Plaintiff LORI A. DANIELS, Plaintiff EDWARD R. MYERS, III, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA .- : : NO. .. _. _. : CIVIL ACTION - LAW VERIFICATION I, LORI A. DANIELS, verify that the statements in the foregoing COMPLAINT are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities. Date: / z LORI A. DANIELS LORI A. DANIELS, Plaintiff VJ EDWARD R. MYERS, III, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 03-251 CIVIL : CIVIL ACTION - LAW PRAECIPE TO REINSTATE COMPLAINT TO THE PROTHONOTARY: Please reinstate the Complaint in the above-captioned matter. Dated: February 24, 2003 Respectfully submitted, LAW OFFICES OF CRAIG A. DIEHL 3464 Trindle Road Camp Hill, PA 17(}11 (717) 763-7613 SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2003-00251 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND DANIELS LORI A VS MYERS EDWARD R III R. Thomas Kline , Sheriff or Deputy Shez duly sworn according to law, says, that he made a dili~ and inquiry for the within named DEFENDANT , to v MYERS III EDWARD R but was unable to locate Him deputized the sheriff of YORK serve the within COMPLAINT & NOTICE in his bailiwick. iff who being ent search and ~it: He therefore County, Pennsylvania, to On March 28th , 2003 , this office was in rec( attached return from YORK Sheriff's Costs: Docketing Out of County Surcharge Dep York County 18.00 9.00 10.00 23.60 .00 60.60 03/28/2003 LINDA CLOTFELTER So answer~. // R< Thomas Klin~" Sheriff of Cumberlan( Sworn and subscribed to before me this q - day of ~ ~2o~ A.D. / ! -Prothonotary/ ipt of the County YORKTOWNE BUSINESS FOMRS o (717) 225-0363 · FAX {717) 225-0367 L~J 1. PLAINTIFF/S/ 3. DEFENDANT/S/ COUNTY OF YORK OFFICE OF THE SHERIFF PROCESS RECEIPT and AFFIDAVIT OF RETURN Lori A. Daniels 28 EAST MARKET ST., YORK, PA 17401 SHERIFF SERVICE PLEASE ~ ¢ I~ NOT D~I 2. COURT NU 03-251 4. TYPE OF V~ Edward R. Myers III Notice SERVE ~" 5. NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC. TO SERVE OR DESCRIPTION OF PROPERTY TO BE i Edward R. Myers III 6. ADDRESS (STREEI OR RFC WITH BOX NUMBER, AP/. NO., CIT~, BORO, TWP., STATE AND ZIP CODE) AT 1009 Skyview Drive York, PA 17402 7. INDICATE SERVICE: O PERSONAL [] PERSON IN CHARGE X~ DEPUTIZE Ct.ETl~J_T~bl~l r~ 1ST CLASS NOW Februa_ry 28 ,20 03 I, SHERIFF Of ~ COU~NTY.~ P.~.~do York _ COUNTY to execut~~. to law. This deputization being made at the request and risk of the plaintiff. ,''r ~'~'::'~:~ ~ SERVICE CALL (717) 771-9601 I~UCTIONS ~ILY LINE I THRU 12 ACH ANY COPIES ~BER civil {IT OR COMPLAINT ~nd Cuuplaint ".VIED, AT~ACHED, OR SOLD. %IL [3 POSTED [3 OTHER hereby dep .u,tizA. the sheriff of SHErlEt Of~l~ COUNTY OF COUNTY ! C~nber~ and 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE: OUT CUNBERLAND ADVANCED FEE PAID BY SHERIFF NOTE: ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any~roperty under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part df such deputy or the sheriff to any plaintiff herein for any loss, destruction, or removal of any property before sheriffs sale thereof. 9. TYPE NAME and ADDRESS of AI-I'ORNEY / ORIGINATOR and SIGNATURE 110. I I TEI~EPHONE NUMBER 11. DATE FILED CRAIG DIEHL 119 W. HANOVER St. SPRING GROVE, PA 225 1929 2-16-03 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (This area must be completed if notice is to be mailed). CUMBERLNAD CO SHERIFF SPACE BELOW FOR USE OF THE SHERIFF -- DO NOT WRITE THIS LINE 13. I acknowledge receipt of the writ or complaint as indicated above. R. AHRENS 16. HOWSERVED: PERSONAL RESIDENCE( ) POSTED( ) POE( ) SHERIFF'S, 17. [] I hereby certify and retum a/I~OT'FOUND because I am unable to locate the individual, company, etc. name above. TLE Of INDIVIDUAL SERVED / LIST ADDRESS HERE IF NOT SHOWN ABOVE (Relationship to Defendant) 21. A'I-FEMPTS 22. REMARKS: 14. DATE 3-3-0: Ii 5. Expiration/Hearing Date 3-18-03 OTHER ( ) SEE REMARKS BELOW 20. 'lime of Service Int. Adv 24 rv' Costs 25 N/F 26 M' e 27 Postage 2 ub~ tal 29. Pound 30 N, 31. Surchg. t ts ~sDu~Ref~nd~dheckNo. ' ' 2§ SOA. SW~.S to before ~.,e.,thi,% ' ' ,44. Sinn~t,,re of ('-""] ///) 41. AFFIRMED an~l~j)ed' 20 U'34~'-- Dap' Shedff '~,)L ~~,~-~-,------~, 45' 3A/~.~// J' James V. Vangr...~., ,,N°ta'~13eal 46. Signature of York/'7~ ~../ ~' ~'~/.~/'/'/' / _ ~.-'~ ~,/...~.~ 47.3.25_03DATE i C[tyofYorL- ' . ' County PA I MyCommissi:. ' ~ M~,- ~i om~= 42. day of 48. Signature of Foreign County Shedff 50. I ACKNOWLEDGE RECEIPT OF THE SHERIFF'S RETURN SIGNATURE l"31~ Al ITI-IC31~I71:::r'I I~;I IIId(~ Al ITHt~[~l'"rv Akin TITI [~ 51. DATE RECEIVED LORI A. DANIELS, Plaintiff EDWARD R. MYERS, III Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-251 CIVIL CIVIL ACTION - LAW NOTICE TO PLEAD TO: Lori A. Daniels cio Linda A. Clotfelter, Esquire 3464 Trindle Road Camp Hill, PA 17011 YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED PRELIMIANRY OBJECTIONS WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. Respectfully submitted, LAW OFFICES OF MARK K. EMERY DATE: By: Mark I(. ~m~"ry, Esquire~~~__-- Supreme Court I.D. No'~_-_72787 410 North Second Street Harrisburg, PA 17101 (717) 238-9883 Attorney for Defendant LORI A. DANIELS, Plaintiff EDWARD R. MYERS, III Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-251 CIVIL CIVIL ACTION - LAW DEFENDANT'S PRELIMINARY OBJECTIONS AND NOW, comes the Defendant, Edward R. Myers, III, by and through his attorney, Mark K. Emery, Esquire, and files these Preliminary Objections, as follows: o Plaintiff has filed a one count Complaint, apparently asserting a cause of action for breach of contract. The contract at issue is an alleged oral agreement for Defendant to pay Plaintiff sums owed on a marital debt incurred during the course of the party's marriage. The parties were married on May 5, 1999. During the party's marriage, Plaintiff, in her name alone, secured a home equity loan. The proceeds of the loan went towards paying off individual debts of both parties. Plaintiff's cause of action is for repayment of the debt she incurred which was applied to Defendant's individual debts. 10. A Complaint in divorce was filed by Plaintiff on April 17, 2002, Docket Number 02-1883. On or about December 3, 2002, Plaintiff, through her counsel, moved for a divorce under section 3301(d) of the Divorce Code. At no time prior to moving for the divorce did Plaintiff assert her rights to equitable division or other recourse as it would relate to issues of marital debt. This Court issued a Decree in Divorce, attached hereto as Exhibit "A", on December 10, 2002. I. Lack of Jurisdiction Over Subject Matter. 11. Paragraphs 1 through 10 are incorporated fully herein by reference. 12. Pursuant to the Decree in Divorce, all claims for separation of property, apportionment of marital debt or other claims which would arise under the Divorce Code, are waived. 13. This Court does not have jurisdiction over claims which should have been brought in the divorce action. WHEREFORE, Defendant respectfully requests this Honorable Court dismiss Plaintiff's Complaint for lack of jurisdiction over the subject matter. II. 14. Demurrer Paragraphs 1 through 13 are incorporated fully herein by reference. 15. Plaintiffs complaint demands immediate payment for an alleged loan between the parties. 16. Plaintiff fails to allege the existence of any term of the oral agreement which entitles her to such immediate payment, even if Defendant is in default. 17. While Plaintiff alleges that payments were untimely or limited to a certain amount, she does not allege any term exists which established either the frequency of payments or the amount of payments. 18. Plaintiff's Complaint lacks any allegation that terms of the oral agreement are different than the amount and frequency of the payments made by Defendant. WHEREFORE, Defendant respectfully requests this Honorable Court dismiss Plaintiff's Complaint for legal insufficiency of the pleading. III, 19. 20. 21. 22. 23. Insufficient Specificity in a Pleading Paragraphs 1 through 18 are incorporated fully herein by reference. Plaintiff alleges that "on occasion, Defendant's payments were untimely". Plaintiff fails to allege which payments were untimely, and under what term of the alleged oral agreement made such payments untimely. Plaintiff alleges that payments have been limited to Two-Hundred ($200.00) Dollars. Plaintiff fails to allege which term of the alleged oral agreement is breached by payment of such amount. 24. Plaintiffs Complaint is completely devoid of any specification as to the terms of the alleged oral agreement, how Defendant's conduct breached such terms, and under which term of the agreement, or other theory, Plaintiff possesses the right to immediate payment. WHEREFORE, Defendant respectfully requests this Honorable Court dismiss Plaintiff's Complaint for insufficient specificity, or order Plaintiff to file a more specific complaint. Respectfully submitted, LAW OFFICES OF MARK K. EMERY Mark K..Emery, Esquire Supreme Court I.D. No. 72787 410 North Second Street Harrisburg, PA 17101 (717) 238-9883 Attorney for Defendant EXHIBIT A 'IN THE COURT OF COMMON PLEAS OF CUMBERLAND COLJ NTY STATE OF~~"3 "" PENNA. LORI A. DANIELS~ Plaintiff EDWARD R. VERSUS MYERS, III, Defendant N o. 02-1883 AND NOW, DECREED THAT AND DECREE IN DIVORCE tiP LORI A. DANIELS , PLAI NTI FF, EDWARD R. MYERS, III , DEFENDANT, ARE DIVORCED FROM THE BONDS OF MATRIMONY. THE COURT RETAINS JURISDICTION OF THE FOLLOWING CLAIMS WHICH HAVE BEEN RAISED OF RECORD IN THIS ACTION FOR W'HICH A FINAL ORDER HAS NOT YET BEEN ENTERED; NONE. BY TH ~ cO~,i~ ATTEST:~ OTHONOTARY CERTIFICATE OF SERVICE AND NOW, this 28th day of April, 2003, I, Mark K. Emery, Esquire do hereby certify that I have served the foregoing Preliminary Objections by mailing a true and correct copy via United States first class mail, addressed as follows: Linda A. Clotfelter, Esquire 3464 Trindle Road Camp Hill, PA 17011 LAW OFFICES OF MARK K. EMERY Mark K. Emery LORI A. DANIELS, : Plaintiff : v. : 03-251 CIVIL EDWARD R. MYERS, III, : CIVIL ACTION - LAW Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF'S RESPONSE TO DEFENDANT'S PRELIMINARY OBJECTIONS AND NOW, comes Plaintiff, Loft A. Daniels, by and through her counsel, Law Offices of Craig A. Diehl, and files this response to Defendant's Preliminary Objections, respectfully stating as follows: 1. 2. 4. 5. 6. Admitted. Admitted in part and denied in part. It is admitted that it is an oral agreement for Defendant to pay Plaintiff certain sums exists and it is further admitted that the obligation occurred during the time that the parties were still married. However, it is denied that the debt owed is marital debt. In further answer hereof, although the debt was incurred while the parties were still married, it is not a legitimate marital debt. Although the contract between the parties occurred during the time of the marriage the money was loaned to the Defendant to pay non-marital debt. Therefore, strict proof of the allegations of this paragraph are demanded. Denied. The parties were married May 1, 1999. Therefore, strict proof is demanded. Admitted. Admitted. Admitted. Admitted in part and denied in part. It is admitted that the Plaintiff filed the Complaint in Divorce on April 17, 2002, Docket Number 02-1883. However, the implication in this paragraph that the named proceeding is the only Divorce proceeding that has been filed between in parties is denied. In further answer hereof, Defendant had initiated a prior Divorce proceeding in Cameron County, Pennsylvania. When Plaintiff in this proceeding filed Preliminary Objections to the Cameron County proceeding, Defendant, by his counsel in the Cameron County Divorce proceeding, terminated the action. It is also notable that the Cameron County Court prohibits the entry of a marital settlement agreement which Plaintiff in this proceeding sought to establish the parties' rights and obligations with regard to the outstanding debt between the parties that is subject of this proceeding. Therefore, strict proof of the allegations of this paragraph is demanded. Admitted. Admitted in part and denied in part. It is admitted that Plaintiff did not seek equitable distribution of marital assets in the Cumberland County Divorce proceeding. However, it is denied that Plaintiff has not properly asserted her rights to collect the debt between the parties to this proceeding. In further answer hereof, Plaintiff has continually and consistently sought confirmation and payment of the debt by Defendant, and he has continually and consistently refused to execute any documentation as evidence of the terms of the oral agreement despite Plaintiff's repeated requests for same in both Divorce proceedings and outside the litigation arena. It is notable that the parties to this proceeding had no disputes in their Divorce regarding marital assets. Because the only dispute was over this liability between the parties and due to the fact that the Divorce Code does not provide the Court with authority to distribute liabilities, then claim on this liability remains ripe despite the entry of a Divorce Decree. 10. Admitted. I. Lack of Jurisdiction over Subject Matter 11. Denied in as much as no response is required thereto. 12. Admitted in part and denied part. It is admitted that claims available under the Divorce Code are waived upon entry ora Divorce Decree. It is denied that this is a matter that must have been resolved in the Divorce proceeding. In further answer hereof, the Divorce Code authorizes the Court to distribute marital assets, and not liabilities. Thus, this Civil proceeding is the proper venue for the dispute of the Oral Agreement between the parties. Therefore, strict proof of the allegations of this paragraph are demanded. 13. Denied. See response to Paragraph 12, above. WHEREFORE, Plaintiff respectfully requests that this Honorable Court deny Defendant's Preliminary Objections for lack of jurisdiction over subject matter, and grant such other relief as this Court deems just and proper. II Demurrer 14. 15. 16. 17. Denied in as much as no response is required thereto. Admitted. Denied. Plaintiff has alleged the terms of the oral agreement to the extent that specific terms exist. Therefore, strict proof for this paragraph are demanded. Denied. See response to Paragraph 16, above. 18. Admitted. WHEREFORE, Plaintiff respectfully requests that this iHonorable Court deny Defendant's Preliminary Objections for legal insufficiency of the pleading, and grant such other relief as this Court deems just and proper. III. Insufficient Specificity in a Pleading 19. Denied in as much as no response is required thereto. 20. Admitted. 21. Admitted in part and denied in part. It is admitted that Plaintiff has not specifically listed the times that the Defendant's payments were untimely. However, it is denied that more specific information must be alleged in Plaintiff's Complaint to put Defendant on notice of his breeches of his oral agreement. Therefore, strict proof thereof is demanded. 22. Admitted in part and denied in part. It is admitted that Plaintiff alleged that Defendant's "most recent" payments have been limited to Two Hundred and 00/100 ($200.00) Dollars. However, it is denied the implication that Plaintiff stated that each and every payment was limited to Two Hundred and 00/100 ($200.00) Dollars. Therefore, strict proof thereof is demanded. 23. Denied. Plaintiffdenies any implication in this paragraph that Plaintiff's allegations as plead regarding payments are improper. In further answer hereof, Plaintiffalleged that on occasion Defendant has been untimely with his payments. Therefore, strict proof thereof is demanded. 24. Denied. Plaintiffspecifically denies the implication in this paragraph that terms exist that are more specific and/or more detailed than those terms alleged in Plaintiff's Complaint. In further answer hereof, Plaintiffh.as properly alleged the terms of the oral agreement as agreed upon by the parties and Defendant's conduct in failing to comply with those terms and/or failing to make monthly timely payments are the basis for the Plaintiff's Complaint against the Defendant. Plaintiff simply seeks to enforce her rights trader the agreement and seeks reasonable provisions for the terms not specifically agreed upon the parties including a reasonable term for the repayment of the debt. Therefore, strict proof of the allegations of this paragraph are demanded. WHEREFORE, Plaintiff respectfully requests that this ttonorable Court deny Defendant's Preliminary Objections, order Defendant to file an Answer to Plaintiff's Complaint, and grant such other relief as this Court deems just and proper. Respectfully submitted, LAW OFFICES OF CRAIG A. DIEHL (x~6°~r~rlnI~i~l~Rf°el !~9~66s3~i'uire v ~ Camp Hill, PA 17011 (717) 763-7613 Attorney for Plaintiff LORI A. DANIELS, Plaintiff Ye EDWARD R. MYERS, III, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : 03-251 CIVIL : CIVIL ACTION - LAW VERIFICATION I, the undersigned, hereby verify that the statements made in the Plaintiff's Response to Defendant's Preliminary Objections are true and correct to the best of my knowledge, information and belief. I understand that the statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities. Date: LORI A. DANIELS LORI A. DANIELS, Plaintiff EDWARD R. MYERS, III, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : 03-251 CIVIL : CIVIL ACTION - LAW CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on this date, a tree and correct copy of the Plaintiff's Response to the Defendant's Preliminary Objections was served upon the opposing parties by way of United States First Class Mail, postage prepaid, addressed as follows: Mark Emery, Esquire 410 North Second Street Harrisburg, PA 17101 LAW OFFICES OF CRAIG A. DIEHL Date: La~y ~A. ~, I~gal J~/ssistant 3464 Trindle Road Camp Hill, PA 17011 (717) 763-7613 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and sut~nitted i~ duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Ar~t Court. CAPTION OF CASE (entire caption must be stated in D,] ] ) LORI A. DANIELS EDWARD R. MYERS, III ( pi aintiff) ( Defendant ) No. 03-251 Civil I~K e State matter to be argued (i.e., plaintiff's r~tion for new trJ~], defendant's d~urrer to cc~pla/nt, etc. ): DEFENDANT'S PRELIMINARY OBJECTIONS Identify counselwho~]] argue case: (a) for plaintiff: LINDA A. CLOTFELTER, ESQUIRE k~ress: 3436 TRINDLE ROAD CAMP HILL, PA 17011 (b) for defendant: MARK K. EMERY, ESQUIRE A4dress: 410 NORTH SECOND STREET HARRISBURG, PA 17101 3. I w~]l notify ail parties in writing with_in t~ days that tbi-~ case has been l i~ted for ar~ja~mnt. J Ar~t Court Date: JULY 23,2003 ~torney for Plaintiff LORI A. DANIELS Plaintiff EDWARD R. MYERS Defendant : IN THE COURT OF COMMON : PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA · NO. 03-251 CIVIL : CIVIL ACTION - LAW IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS Before HOFFER~ P.J. and HESS, J. ORDER OF COURT AND NOW, this 9th of December, 2005, upon consideration of Defendant's Preliminary Objections, it is hereby ORDERED that: 1. Defendant's request for the Court to dismiss Plaintiff's Complaint for lack of jurisdiction over the subject matter is DENIED. (See note below)· 2. Defendant' request for the Court to dismiss Plaintiff's Complaint for legal insufficiency of the pleadings is DENIED· 3. Defendant's request for the Court to dismiss Plaintiff's Complaint for insufficient specificity is GRANTED. It is hereby ORDERED that the Plaintiff has twenty (20) days from the entry of this Order in which to amend her Complaint, in accordance with the rules. By the Court, p,j, Note: ~ The oral agreement/contract between the parties that is the subject of the Plaintiff's Complaint was not incorporated or merged into the Divorce Decree. Many Pennsylvania cases support the proposition that absent incorporation and merger into a Divorce Decree, settlement agreements and contracts made between former spouses survive independently of the Decree. See Brown v. Hall, 495 Pa. 635 (1981) (holding that where an agreement has not been merged into a Divorce Decree, the parties' continuing liability between themselves for separate contractual obligations is not affected); Christner v. Christner, 37 Pa.D.&C.3d 378 (1985) (in order for a contract to become part of the Decree, the contract must be merged into the decree so as to become part thereof and thereby extinguish the original cause of action in contract upon which the decree is based); Caccavo v. Caccavo, 388 Pa. Super. 459 (1989) (the appropriate course for the former husband to have taken given that the settlement agreement was not merged into the divorce decree would have been to pursue a breach of contract in a civil suit); D'Huy v. D'Hu¥, 390 Pa. Super 509 (1990) (where the parties to an agreement had clearly and unambiguously expressed in their agreement an intent that their agreement will survive the entry of a Divorce Decree, the agreement survives the Divorce Decree and is not merged therein). ,,'/Linda A. Clotfelter, Esquire Law Office of Craig A. Diehl 3464 Trindle Road Camp Hill, Pa 17011 For the Plaintiff ,.~ark K. Emery, Esquire 410 North Second Street Harrisburg, Pa 17101 For the Defendant LORI A. DANIELS, Plaintiff Ye EDWARD R. MYERS, IH, Defendant : IN THE COURT (IF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA _. : NO. 03-251 CIVIL : ; : CIVIL ACTION - LAW NOTICE You have been sued in court. If you wish to defend against thc cl~uns set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by enlering a written appearance personally or by attorney and filing in writing with the court your defense or objections to the claims set forth against you. You are warned that ffyou fail to do so, the case may proceed without you and judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other tights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. LAWYER REFERRAL SERVICE OF THE CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVE. CARLISLE, PA 17013 (717) 249-3166 NOTICIA Le hah demandado a nsted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siquinetes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apatiencia eserita o en persona o por abegado y archivar en la corte en forma esctita sns defenses o sns objectiones a las demandas en contra de su persona. Sea avisado que si ns'ted no se defiande, la corte tomera medidas y puede entrur una orden contra ns'ted sin privio aviso o notificacion y por ~aalquier queja o aiivio que es pedido en la peticion de demanda. Usted puede pcrder dinero a sus propiedades o otros derechns importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI TO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABA JO PARA AVERIGUAR DON'DE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. LAWYER REFERRAL SERVICE OF 'IHE CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVE. CARLISLE, PA 17013 (717) 249-3166 LORI A. DANIELS, Plaintiff EDWARD IL MYERS, IH, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-251 CIVIL CIVIL ACTION - I~W AMENDED COMPLAINT And now comes Plaintiff, Lori A. Daniels, by and through iher attorneys, Law Offices of Craig A. Diehl, and files this Amended Complaint, respectfully stating in support thereof the following: 1. Plaintiffis Lori A. Daniels, an adult individual who currently resides at 32 Greenmont Drive, Enola, Cumberland County, Pennsylvania 17025. 2. Defendant is Edward R. Myers, III, an adult individual whose current mailing address is 340-128 East Penn Drive, Enola, Cumberland County, Pennsylvania 17025. 3. In or about October, 1999, the parties entered into an oral contract. 4. The oral contract between the parties provided that Plaintiffwould loan to Defendant the sum of Sixteen Thousand Five Hundred and 00/100 ($16,500.00) Dollars and Defendant would pay to Plaintiff principal and interest at an annual interest rate of nine percent (9%). 5. The parties agreed that payments would be made on or before the first day of each month. 6. It was the intent of the parties to have the terms of'the oral agreement between them mirror the terms of the home equity loan taken by Plaintiff to produce the funds utilized by the parties to payoffpersonal debt. 7. The parties agreed that Defendant would pay to Plaintiff the sum of Two Hundred and 00/100 ($200.00) Dollars each month. 8. It was agreed by the parties that the term for the loan would be no more than five (5) years and/or the date ora change in the relationship oftbe parties. 9. It was anticipated by the parties that a lump payment would be made by Defendant to Plaintiffwhen the home equity loan of Plaintiff?was paid in full. 10. It was anticipated by the parties that a lump pay~aent would be made by Defendant to Plaintiffupon termination of their marriage. 11. Defendant has been untimely in his payments. Over the past three (3) years, aH payments have been received after the first of the month with the normal receipt date averaging the tenth day of the month. 12. Despite the agreement for the payment of Two Hundred and 00/100 ($200.00) Dollars, Defendant has at times paid as little as One Hundred Ninety-Eight and 48/100 ($198.48) Dollars for his monthly payment. 13. Defendant's failure to pay in a timely manner and l!'ailure to pay the sum agreed upon the parties is a breach of the agreement between the parties. 14. Defendant's failure to pay in full of the sum due to Plaintiff upon the payment in full oftbe home equity loan and/or the change in the relationship between the parties, is breach of the oral contract between the parties. 15. No writing oftbe terms of the contract exists between the paxties. 16. Plaintiff did loan to Defendant the sum of monies indicated herein. 17. 18. 19. 20. 21. As of January 10, 2004, upon Defendant's most recent payment, Defendant owed Plaintiff the principal sum of Ten Thousand Five Hundred Eleven and 83/100 ($10.511.83) Dollars, plus interest accruing at a rate of nine percent (9%) per annum. Plaintiffhas repeatedly demanded that Defendant pay the total principal and interest due in full. Defendant has failed and/or refused to pay the total principal and interest due under the terms of the oral note. Plaintiff now seeks judgment against Defendant for the total sum due under the parties' oral contract for money loaned. The amount in controversy in this proceeding does not exceed the compulsory arbitration limits of the Cumberland County Local Rule 1301-1. WHEREFORE, Plaintiff, Lori A. Daniels, respectfully requests that this Court enter judgment for Plaintiff'and against Defendant for the sum ofTen Thousand Five Hundred Eleven and 83/100 ($10.511.83) Dollars, plus interest accruing at a rate of nine percent (9%) per annum, the cost of this proceeding, and such other relief this Court deems just and proper. LAW OFFICES OF CRAIG A. DIEHL inda A. Clotfelter, Esquire ttoruey ID No. 72963 ~64 Trindle Road Camp Hill, PA 17011 (717) 763-7613 Attorney for Plaintiff LORI A. DANIELS, Plaintiff EDWARD IL MYERS, m, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA .- : : NO. 03-251 CIVIL : ., : : CIVIL ACTION - ][,AW VERIFICATION I, LORI A. DANIELS, verify that the statements in the foregoing AMENDED COMPLAINT are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unswom falsification to authorities. Date: LORI A. DANIELS LORI A. DANIELS, Plaintiff EDWARD R. MYERS, Ill, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-251 CIVIL CIVIL ACTION - LAW CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on this date, a true., and correct copy of the foregoing document was served upon the opposing parties by way of United States First Class Mail, postage prepaid, addressed as follows: Mark Emery, Esquire 410 North Second Street Harrisburg, PA 17101 LAW OFFICES OF CRAIG A. DIEHL L~c'y ~. Jay,(.L~fAssistant 3464 Trindle Road Camp Hill, PA 17011 (717) 763-7613 LORI A. DANIELS, Plaintiff V. EDWARD R. MYERS, Ill Defendant IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA · NO. 03-251 CIVIL : CIVIL ACTION - LAW ANSWER TO AMENDED COMPLAINT AND NOW, comes the Defendant, Edward R. Myers, Ill, by and through his attorney, Mark K. Emery, Esquire, and files this Answer to Amended Complaint, as follows: 1. Admitted upon information and belief. 2. Admitted. 3. Admitted only that an oral contract was created. Defendant does not have sufficient recollection to either admit or deny the averment as to the date of such contract, and therefore that averment is denied. 4. Denied. It is denied that the parties agreed to the calculation and application of interest. By way of further response, the original amount of the loan was based upon the amount borrowed by Plaintiff from her lender. Defendant does not have sufficient recollection, and after a reasonable investigation, Defendant can neither admit or deny the amount of the loan, and therefore the averment as to the amount originally due under the oral contract is denied. 5. Denied. All payments of $200.00 were to be made by the 17th of each month. 6. Denied. 7. Admitted. 8. Denied. It is specifically denied that the parties agreed upon any term accelerating payment or terms other than payment of two hundred dollars per month. 9. Denied. It is specifically denied that the parties agreed upon any term accelerating payment or terms other than payment of two hundred dollars per month. 10. Denied. It is specifically denied that the parties agreed upon any term accelerating payment or terms other than payment of two hundred dollars per month. 11. Denied. All payments have been made prior to the 17th of each month. 12. Denied. All payments have complied with the terms of the parties' agreement. 13. Denied as a conclusion of law. 14. Denied as a conclusion of law. 15. Admitted that the agreement was an oral contract. 16. Admitted that Plaintiff loaned a certain amount to Defendant. Upon reasonable investigation, Defendant does not have sufficient information or recollection to either admit or deny the amount of the loan, and therefore such averment as to the amount of the loan is denied. 17. Denied. It is specifically denied that Defendant owes the amount averred. 18. 19. 20. 21. Admitted that Plaintiff has made demand for payment. Such demand has been repeatedly rejected by Defendant as Plaintiff has no legal right to make such demand. Denied. Defendant is in complete compliance with the parties' agreement. Denied as a conclusion of law. Denied as a conclusion of law. WHEREFORE, Defendant, Edward R. Myers, III, respectfully requests this Honorable Court enter judgment for him and against Plaintiff. NEW MATTER 22. Plaintiff has failed to set forth a cause of action for which relief can be granted. 23. Plaintiff's claim is barred by the doctrine of latches. 24. Plaintiff's claim is barred by the statute of frauds. 25. Plaintiff's claim is barred by the doctrine of waiver. Respectfully submitted, LAW OFFICES OF MARK K. EMERY DATE: )-/o/-/2'1 Mark K. Emery, Esquire Supreme Court I.D. No. 72787 410 North Second Street Harrisburg, PA 17101 (717) 238-9883 Attorney for Defendant VERIFICATION I, Edward R. Myers, III, hereby verify that I have read the foregoing Answer and that the information contained therein is true and correct to the best of my knowledge, information and belief. I understand that false statements herein are subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. Edward R. Myers, III J LORI A. DANIELS, Plaintiff EDWARD R. MYERS, III, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 03-251 CIVIL CIVIL ACTION - LAW PLAINTIFF'S RESPONSE TO DEFENDANT'S NEW MATTER AND NOW, comes Plaintiff, Loft A. Daniels, by and through her counsel, Law Offices of Craig A. Diehl, and files this reply to Defendant's New Matter, respectfully stating and support thereof the following: 22. Denied. Plaintiff denies that she has failed to set forth a cause of action for which relief can be granted. In further answer hereof, Plaintiff's Complaint as drafted is sufficiently plead and therefore, strict proof of these allegations is demanded at trial. 23. Denied. Plaintiff specifically denies that the doctrine of laches applies to this case. In further answer hereo£ at all times related hereto Plaintiff has acted diligently and timely. Therefore, strict proof thereof is demanded at trial. 24. Denied. Plaintiff specifically denies that her claim is barred by the statute of frauds. In further answer hereof, a writing is not required for an oral promissory note to be effective. Therefore, strict proof thereof is demanded at trial. 25. Denied. Plaintiff specifically denies that her claim is barred by the doctrine of waiver. In further answer hereof, Plaintiff has not relinquished any claims that she might have against Defendant in this matter. Therefore, strict proof thereof is demanded at trial. WHEREFORE, Plaintiff, Lori A. Daniels, respectfully requests that this Court enter judgment for Plaintiffand against Defendant for the stm~ ofTen Thousand Five Hundred Eleven and 83/100 ($10,511.83) Dollars plus interest accruing at a rate of nine percent (9%) per annum, the cost of this proceeding, and such other relief as this Court deems just and proper. ate: Respectfully submitted, LAW OFFICES OF CRAIG A. DIEHL ~ A. Clotfelter, Es~tuire / ] Att/ome)/ID No: 72963 (./ xeoX~64 Trindle Road Camp Hill, PA 17011 (717) 763-7613 Attorney for Plaintiff LORI Ao DANIELS, Plaintiff EDWARD R. MYERS, II/, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA ._ .- .. : 03-251 CIVIL : .. : CIVIL ACTION - LAW VERIFICATION I, the undersigned, hereby verify that the statements made in the Plaintiff's Response to Defendant's New Matter are true and correct to the best of my knowledge, information and belief. I understand that the statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, relating to unswom falsification to authorities. Date: z4 [ I / O C/ // · LORI A. DANIELS LORI A. DANIELS, Plaintiff EDWARD R. MYERS, Ill, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA .. : : 03-251 CIVIL : _- : CIVIL ACTION - LAW CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on this date, a tree and correct copy of the Plaintiff's Response to the Defendant's New Matter was served upon the opposing parties by way of United States First Class Mail, postage prepaid, addressed as follows: Edward R. Myers, III c/o Mark Emery, Esquire 410 North Second Street Harrisburg, PA 17101 LAW OFFICES OF CRAIG A. DIEHL 3464 Trindle Road Camp Hill, PA 17011 (717) 763-7613 LORI A. DANIELS, : Plaintiff : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-251 CIVIL 19 EDWARD R. MYERS, III Defendant RULE 1312-1. The Petition for Appointment of Arbitrators shall be substantially in the following form: PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: LINDA A. CLOTFELTER , counsel for the plaintiff/dg~ll~IiI0Xin the above action (or actions), respectfully represents that: 1. The above-captioned action ([g/ga~) is (a~t issue. 2. The claim of the plaintiff in the action is $ 10,511.83 plua interest at 9% and costs. The countemlaim of the defendant in the action is N/A The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: Linda A. Clotfelter, Mark Emery, and Craig A. Diehl WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. ORDER OF COURT forego g tition. Esq., actions) as prayed for. ,1~~ ~,in consideration of the , Esq., are appointed arbitrators in the above captioned action (or LORI A. DANIELS, Plaintiff EDWARD R. MYERS, III, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : 03-251 CIVIL : CIVIL ACTION - LAW CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on this date, a tree and correct copy of the foregoing document was served upon the opposing parties by way of United States First Class Mail, postage prepaid, addressed as follows: Edward R. Myers, III c/o Mark Emery, Esquire 410 North Second Street Harrisburg, PA 17101 LAW OFFICES OF CRAIG A. DIEHL Eacy 1~. Jay, L'~gal~ssistant 3464 Trindle Road Camp Hill, PA 17011 (717) 763-7613 LORI A. DANIELS, Plaintiff Vo EDWARD R. MYERS, III, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 03-251 CIVIL : CIVIL ACTION - LAW PLAINTIFF'S RESPONSE TO DEFENDANT'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS Attached. None available other than documents produced in Response to Request for Production of Documents. See attached documents. See attached. Dated: LAW OFFICES OF CRAIG A. DIEHL Camp Hill, PA 17011 (717) 763-7613 LORI A. DANIELS, Plaintiff EDWARD R. MYERS, III, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 03-251 CIVIL : CIVIL ACTION - LAW VERIFICATION I, LORI A. DANIELS, verify that the statements in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities. LORI A. DANIELS LORI A. DANIELS, Plaintiff EDWARD R. MYERS, III, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA .. : : NO. 03-251 CIVIL : _. -_ : CIVIL ACTION - LAW CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on this date, a tree and correct copy of the foregoing document was served upon the opposing parties by way of United States First Class Mail, postage prepaid, addressed as follows: Mark Emery, Esquire 410 North Second Street Harrisburg, PA 17101 LAW OFFICES OF CRAIG A. DIEHL L~cy A.Lg/ay, LeVi As ~'g~fant 3464 Trindle Road Camp Hill, PA 17011 (717) 763-7613 ~MARITAL SETTLEMENT AGREEMENT THIS AGREEMENT, made this day of ,2002 between LORI A. DANIELS, (hereinafter referred to as WIFE) and EDWARD R. MYERS, III, (hereinafter referred to as HUSBAND). WITNESSETH: WHEREAS, Husband and Wife were lawfully married ,on May 1, 1999, in Cumberland County, Pennsylvania; and WHEREAS, there are no children bom of this marriage; and WHEREAS, disputes and difficulties have arisen between the parties, and it is the present intention of Husband and Wife to live separate and apart, and the parties hereto are desirous of settling their respective financial and property rights and obligations as between each other, including without limitation by specification: the settling of all matters between them relating to the past, present, and future support and/or maintenance of Wife by Husband or Husband by Wife; the settling of all matters between them relating to the equitable division of marital property; and, in general, the settling of any and all claims and possible claims by one against the other or against their respective estates; and WHEREAS, Husband and Wife declare that each has had a full and fair opportunity to obtain independent legal advice of counsel of his or her selection; that Wife has been represented by Linda A. Clotfelter, Esquire and Husband has been informed that he has the right to independent legal counsel, but he has chosen not to be represented by legal counsel in this matter. The parties represent and warrant that they have fully disclosed to each other all assets of any nature owned by each, all debts or obligations for which the other party may be liable in whole or part, and all sources and amounts of income. The parties acknowledge that they fully understand the facts, and they acknowledge and accept that this Agreement, is, under the circumstances, fair and equitable, and that it is being entered into freely and voluntarily, with such knowledge and that execution of this Agreement is not the result of any duress or undue influence as~d that it is not the result of any improper or illegal agreement or agreements. NOW THEREFORE,' in consideration of the premises and of the mutual promises, covenants and undertakings hereinafter set forth and for other good and valuable consideration, receipt of which is hereby acknowledged by each of the parties hereto, Husband and Wife, each intending to be legally bound hereby, covenant and agree as follows: 1. PERSONAL RIGHTS. It shall be lawful for each Husband and Wife at all times hereafter to live separate and apart from the other party 0t such place as he or she may from time to time choose or deem fit. The parties shall be free from any control, restraint, interference or authority, direct or indirect, by the other in all respects as fully as if they were unmarried, except as may be necessary to carry out the provisions ofthis Agreement. Husband and Wife shall not molest, harass, disturb or malign each other or the respective families of each other nor compel or attempt to compel the other to cohabit or dwell by any means in any manner whatsoever with him or her. The foregoing provision shall not be taken as an admission on the part of either party of the lawfulness or unlawfulness of the causes leading to their living ,apart. 2. MUTUAL RELEASE. Husband and Wife each do hereby mutually remise, release, quitclaim and forever discharge the other, for all time to come, and for all purposes whatsoever, of and from any and all rights, titles and interests, or claims in or against the property (including income and gains from property hereinafter accruing) of the other or against the estate of such other, of whatever nature and wheresoever situate, which he or she now has or at any time hereafter may have against such other, the estate of such other or any part thereof, whether arising out of any former act, contracts, engagements or liabilities of such other or by way of dower or curtesy; or claims in the nature of dower or curtesy or widow's or widower's fights, family exception or similar allowance, or under the intestate laws, or the fight to take against the spouse's will; or the right to treat a lifetime conveyance by the other as testamentary, or all other rights of a surviving spouse to participate in a deceased spouse's estate, whether arising under the law of Penns.ylvania, any state, commonwealth or territory of the United States, or any other country, or the right to act as personal representative of the estate of the other; or any fights which any party may now have or any time hereafter have for past, present, future support, maintenance, alimony, alimony pendente lite, counsel fees, costs or expenses, whether arising as a result of the marital relation or otherwise; except all fights and agreements and obligations of whatsoever nature arising or which may arise under this Agreement or for breach of any provision hereof. It is the intention of Husband and Wife to give to each other, -2- by the execution of the Agreement, a full, complete and general ]release with respect to any and all property of any kind or nature, real, personal or mixed, which the other now owns or may hereafter acquire, except and only except all rights and agreements and obligations of whatsoever nature arising or which may arise under this Agreement or for the breach of any provision hereof. It is further specifically understood and agreed by and between the parties hereto that each accepts the provisions herein made by the other in lieu of and in full settlement and satisfaction of any and all of their rights against the other or any past, present and future claims on account of support and maintenance; that it is specifically understood and agreed that the payments, transfers and other considerations herein recited so comprehend and discharge any and all such claims by each other against the other, and are, inter alia, in full settlement and satisfaction and in lieu of their past, present and future claims against the other in account of maintenance and support, and also alimony, alimony pendente lite, counsel fees, costs and expenses, as well as any and all claims to equitable distribution of property, both real and personal, and any other charge of any nature whatsoever pertaining to any divorce proceedings which may have been or may be instituted in any court in the Commonwealth of Pennsylvania or any otherjurisdicti0n, including any other counsel fees, costs and expenses incurred or to be charged by any counsel arising in any manner whatsoever, except as may be incurred in connection with a breach of the Agreemem as set forth hereinafter in paragraph 18. 3. RELEASE OF TESTAMENTARY CLAIMS. Except as provided for in this Agreement, each of the parties hereto shall have the right to dispose of his or her property by last will and testament or otherwise, and each of them agrees that the estate of the other, whether real, personal or mixed, shall be and belong to the person or persons, who would have become entitled thereto as if the decedent had been the last to die. Except as set forth herein, this provision is intended to constitute a mutual waiver by the parties of any rights to take against each other's estate whatsoever, and is intended to confer third-party beneficiary rights upon the other heirs and beneficiaries of each. Either party may, however, make such provision for the other as he or she may desire in an by his or her last will and testament; and each of the parties further covenants and agrees that he or she will permit any will of the other to be probated and allowed administration; and that neither Husband nor Wife will claim against or contest the will and estate of the other except as necessary to enforce any breach by the decedem of any provision of this Agreement. Each of the parties hereby releases, relinquishes and waives any and all rights to act as personal representative -3- of the other party's estate. Each of the parties hereto further covenant~ and agrees for himself and herself and his or her heirs, executors, administrators or assigns, for the purpose of enforcing any of the rights relinquished under this Agreement. 4. FINANCIAL DISCLOSURE. The parties waive their rights to require the filing of financial statements by the other, although the parties have been advised by their respective attorneys that it is their legal right to have these disclosures made prior to entering into this Agreement and by entering into this Agreement without reliance upon financial disclosure, the parties are forever waiving their right to request or use that as a basis to overturn this Agreement or any part thereof. 5. INCOME TAX CONSIDERATIONS. The transfers of property pursuant to this Agreement are transfers between Husband and Wife incident to their divorce and as such are nontaxable, with no gain or loss recognized. The transferee's basis in the property shall be the adjusted basis of the transferor immediately before the transfer. The transfers herein are an equal division of marital property for full and adequate consideration mad as such will not result in any gift tax liability. 6. PENSION, PROFIT-SHARING, RETIREMENT, CREDIT UNION OR OTI-1ER EMPLOYMENT-RELATED PLANS. The parties hereto expressly waive and relinquish any right, claim, title or interest in any pension, profit-sharing, retirement, credit union or other employment-related plans in which the other has any interest by virtue of his or her past or present employment, whether vested or unvested, matured or unmatured. 7. EQUITABLE DISTRIBUTION OF MARITAL PROPERTY. The parties have attempted to distribute their marital property in a manner which conforms to the criteria set forth in Section 3502 of the Pennsylvania Divorce Code. The division of existing marital property is not intended by the parties to constitute in any way a sale or exchange of assets, and the division is being effected without the introduction of outside funds or other property not constituting marital property. The division of property under this Agreement shall be in full satisfaction of all marital rights of the parties. A. MOTOR VEHICLES. The parties agree that each shall have full and sole possession of any vehicles that are presently in his or her possession. On or before the date of the execution of this Agreement, the parties shall execute the titles to the said vehicles, -4- if appropriate, so as to effectuate the transfer as herein provided. Furthermore, each party shall become solely responsible for the financial obligation associated with the vehicle he or she is to retain pursuant to this Agreement and each party agrees to indemnify and hold harmless the other party from any and all liability therefor. B. DIVISION OF HOUSEHOLD AND PERSONAL PROPERTY. The parties hereto have divided between themselves, to their mutual satisfaction, all items of tangible and intangible marital property. Neither party shall maize any claim to any such items of marital property, or of the separate personal property of either party, which are now in the possession and/or under the control of the other. Should it become necessary, the parties each agree to sign, upon request, any titles or documenls necessary to give effect to this paragraph. Properly shall be deemed to be in the possession or under the control of either party if, in the case of tangible personal property, it is physically in the possession or control of the party at the time of the signing of this Agreement, and in the case of intangible personal property, if any physical or written evidence of ownership, such as passbook, checkbook, policy or certificate of insurance or other similar writing is in the possession or control of the party. C. DISTRIBUTION OF CASH ASSETS, STOCKS AND BONDS. The parties agree that they have distributed to each, to their mutual satisfaction, the sums deposited in the marital bank accounts. The parties further agree that they shall retain as their respective sole and separate property any other depository or brokerage accounts, stocks, or bonds held in their respective individual names. D. REAL ESTATE. The parties acknowledge their intent that any real property titled to each party shall remain the sole and exclusive prope~V of the individual on the title to same. Each party further waives any right, title or interest they may have had, now have, or hereinafter would have in said real property including, but not limited to any rights that may arise under the equitable distribution provisions of the Pennsylvania Divorce Code. The parties shall execute any and all documentation to effectuate the terms of this Agreement within five (5) days ora request for same, including but not limited to deeds and/or a release of marital rights. -5- From the date of this Agreement, each party shall assume as his or her sole obligation all of the expenses incident to the use and ownership of any real property titled to the individual party, including, without limitation, any and all mortgage payments, taxes, liability and fire insurance, utilities, sewer, water, refuse collection, assessments, proper maintenance, repairs, additions and improvements, and said party shall indemnify and hold the other party harmless from any such liabilities, obligations or expenses or any claims or demands as a result thereof. 8. DEBTS. Husband represents and warrants to Wi.fe that since the separation he has not, and in the future he will not contract or incur any debt or liability for which Wife or her estate might be responsible, and he shall indemnify and save Wife harmless from any and all claims or demands made against her by reason of such debt or obligation incurred by him since the date of said separation, except as otherwise set forth herein. Wife represents and warrants to Husband that since the separation she has not, and in the future she will not, contract or incur any debt or liability for which Husband or his estate might be responsible, and she shall indemnify and save Husband harmless from any and all claims or demands made against him by reason of such debts or obligations incurred by her since the date of said separation, except as otherwise set forth herein. The parties further acknowledge that Husband has borrowed from Wife a set certain sum of money with the principal remaining due and owing to Wife by Husband for said loan on October 9, 2001, being $13,512.90. Husband agrees to continue to make payments of principal and interest as has been the custom of the parties. More specifically, Husband shall make monthly payments of a minimum of $200.00 each month with annual interest of 9% on the unpaid principal until the full amount of principal has been paid. Husband shall make said principal and interest payments on or before the first day of each month and he will make these payments every month until Husband has paid all of the principal and interest and any other charges described below that he may owe to Wife. Husband' s monthly payments will be applied to interest before principal and if Wife has not received the full amount of any monthly payment by the end of five (5) calendar days after the date it is due, Husband shall pay a late charge to the Note Holder. The amount of the late charge will be ten (10%) of the overdue payment of principal and interest. Husband will pay this late charge promptly but -6- only once on each late payment.. The total due for principal, intere, st and. any other charges described below shall be payable in full on or before October 13, 2002. 9. COUNSEL FEES AND COSTS. Husband and Wife each agree to pay and be responsible for their own attorney's fees and costs incurred with respect to the negotiation of this property settlement agreement and the divorce proceedings related thereto. 10. ALIMONY, ALIMONY PENDENTE LITE, COUNSEL FEES AND EXPENSES. Both parties accept the provisions of this Agreement in lieu of and in full and final settlement and satisfaction of all claims and demands that they may now or hereafter have against the other for alimony, alimony pendente lite, counsel fees or expenses, or for any other provisions for support and maintenance before, during and after the commencement of any proceedings for the divorce or annulment between the parties. 11. DIVORCE. A Complaint in Divorce has been filed to No. 6296 of 2001 Civil in the Court of Common Pleas of Cameron County, Pennsylvania, and either party shall be free to proceed without further delay to secure the divome. Both parties shall sign an affidavit evidencing their consent to the divorce, pursuant to Section 3301 (c) of the Divorce Code. In the event, for whatever reason, either party fails or refuses to execute such affidavit upon the other party's timely request, that party shall indemnify, defend and hold the other harmless from any and all additional expenses, including actual counsel fees, resulting from any action brought to compel the refusing party to consent. Each party hereby agrees that a legal or equitable action may be brought to compel him or her to execute a consent form and that, absent some breach of this Agreement by the proceeding party, there shall be no defense to such action asserted. 12. BANKRUPTCY. The parties further warrant that they have not heretofore instituted any proceedings pursuant to the bankruptcy laws nor are there any such proceedings pending with respect to them which have been initiated by others. It is stipulated and agreed by the parties that the terms of this Agreement as they resolve the economic issues between the parties incidental to their divorce and the obligations of the parties to each other resulting therefrom shall not be dischargeable in bankruptcy, should either party file for protection under the Bankruptcy Code at any time after the date of execution of this Agreement. The payments called for in this Agreement are not intended to be a debt which is affected by a discharge in bankruptcy and the terms of this Agreement are not subject to discharge in bankruptcy -7- because the parties aclmowled.ged that such are necessary for the parties to meet their financial obligations and to support and maintain their standard of living as well as that of the parties' children. The parties acknowledge that there are not bankruptcy proceedings presently pending and they agree not to file a bankruptcy action prior to the completion of their respective obligations pursuant to this Agreement. Furthermore, any debt addressed in this Agreement shall not be discharged in a bankruptcy action filed by or on behalf of one of the parties hereto. Also, if either party files for bankruptcy, this Agreement shall constitute conclusive evidence of the parties' intent that the obligations in the nature of maintenance and support are not dis&targeable under current bankruptcy law or under any amendment thereto. Further if either party institutes any action in bankruptcy or any other bankruptcy proceeding is instituted in which a party's right to have payments made by the other becomes a matter for judicial review, the parties agree to consent to any motion filed by the other with the bankruptcy courts, wherein the party may request that the bankruptcy courts abstain from deciding the dischargeability of said obligation and arty other obligations to said party thereunder in order to allow the appropriate Court of Common Pleas to rule upon this issue. 13. RECONCILIATION. Notwithstanding a reconciliation between the parties, this Agreement shall continue to remain in full force and effect absent a writing signed by the parties stating that this Agreement is null and void. 14. INCORPORATION IN FINAL DIVORCE DECREE. The terms of this Agreement shall be incorporated but shall not merge in the f'mal divorce decree between the parties. The terms shall be incorporated into the final divorce decree for the purposes of enforcement only and any modification of the terms hereof shall be valid only if made in writing and signed by both of the parties. Any Court having jurisdiction shall enfome the provision of this Agreement as if it were a Court Order. This Agreement shall survive in its entirety, resolving the spousal support, alimony, equitable distribution and other interests and rights of the parties under and pursuant to the Divorce Code of the Commonwealth of Permsylvania, and no court asked to enforce or interpret this Agreement shall in any way change the terms of this Agreement. This Agreement may be enforced independently of any support order, divorce decree or judgment and its terms shall take precedence over same, remaining the primary obligation of each party. This Agreement shall remain in full force and effect regardless of any change in the marital status of the parties. It is warranted, covenanted and represented by Husband and Wife, each to the other, that this Agreement is lawful and -8- enforceable, and this warranty; covenant and representation is made' for th~ specific purpose of inducing the parties to execute the Agreement. 15. DATE OF EXECUTION. The "date of execution" or "execution date" of the Agreement shall be defined as the date upon which it is executed by the parties if they have each executed the Agreement on the same date. Otherwise, the "date of execution" or "execution date" of this Agreement shall be defined as the date of executio~t by the party last executing the Agreement. 16. FULL DISCLOSURE. Each party asserts that he or she has made or shall make a full and complete disclosure of all the real and personal property of whatsoever nature and wheresoever located belonging in any way to each of them, of all debts and encumbrances incurred in any manner whatsoever by each of them, and of all sources and amounts of income received or receivable by each party. 17. ENTIRE AGREEMENT. This Agreement contains the entire understanding of the parties, and there are no representations, warranties, covenants or undertakings other than those expressly set forth herein. 18. BREACH. If either party breaches any provision of this Agreement, the other party shall have the right, at his or her election, either to pursue his or her rights in having the terms of this Agreement enforced as an Order of Court or to sue for specific performance or for damages for such breach, and the party breaching this Agreement shall be responsfble for legal fees and costs incurred by the other in enforcing his or her rights under this Agreement. 19. PENNSYLVANIA LAW. The parties agree that the terms of this Agreement and any interpretation and/or enforcement thereof shall forever be governed by the Laws of Pennsylvania. 20. WAIVER OR MODIFICATION TO BE IN WRITING. No modification or waiver of any of the terms hereof shall be valid unless made in. writing and signed by both of the parties. 21. ADDITIONAL INSTRUMENTS. Each of the parties shall from time to time, at the request of the other, execute, acknowledge, and deliver to the other party any and all further instruments, including Deeds and other real estate-related documents, titles, or other documents that may be reasonably required to give full force and effect to the provisions of this Agreement. -9- 22. SEVERABILITY. If any term, condition, clause or provision of this Agreement shall be determined or declared to be void or invalid in law or otherwise, then only that term, condition, clause or provision shall be stricken from this Agreement, and in all other respects this Agreement shall be valid and shall continue in full force, effect and operation. 23. WARRANTY. Husband and Wife again acknowledge that they have each read and understand this Agreement, and each warrants and represents that it is fair and equitable to each of them. 24. DESCRIPTIVE HEADINGS. The descriptive headings used herein are for convenience only. They shall have no effect whatsoever in determining the rights or obligations of the parties. IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties hereto have hereunto set their hands and seals the day and year first above written. This agreement is execUted in duplicate, and each party hereto acknowledges receilpt of a duly executed copy thereof. WITNESSES: LORI A. DANIELS EDWARD R. MYERS, III -10- COMMONWEALTH OF PENNSYLVANIA COUNTY OF SS. On this day of ,2002, before me, the undersigned officer, personally appeared LORI A. DANIi~,I,S, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within Agreement, and acknowledged that she executed the san~e for the purposes therein contained. Notary Public COMMONWEALTH OF PENNSYLVANIA COUNTY OF SS. On this day of ,2002, before me, the undersigned officer, personally appeared EDWARD R. MYERS, III, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within Agreement, and acknowledged that he executed the same for the purposes therein contained. Notary Public -11- LORI A. DANIELS, Plaintiff EDWARD R. MYERS, III, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA .. _. : NO. 03-251 CIVIL : : _. : CIVIL ACTION - LAW PLAINTIFF'S RESPONSE TO DEFENDANT'S FIRST SET OF WRITTEN INTERROGATORIF, S See spreadsheets produced previously and with production of documents. PNC Bank (a) Unknown. (b) Unknown. (c) First day of the momh. (d) Unknown. (e) Nine Percent (9%) annually. (f) Unknown. Linda A. Clotfelter, Esquire Dated: o LAW OFFICES OtI CRAIG A. DIEHL Camp Hill, PA 17011 (717) 763-7613 LORI A. DANIELS, Plaintiff EDWARD R. MYERS, III, Defendant : IN THE COURT ,OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 03-251 CIVII, : : CIVIL ACTION - ]LAW VERIFICATION I, LORI A. DANIELS, verify that the statements in the foregoing document are tree and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. ~ 4904, relating to unsworn falsification to authorities. Date: LORI A. DANIELS LORI A. DANIELS, Plaintiff EDWARD R. MYERS, III, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA .. : : NO. 03-251 CIVIL .. .. : : CIVIL ACTION - LAW CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on this date, a tree and correct copy of the foregoing document was served upon the opposing parties by way of United States First Class Mail, postage prepaid, addressed as follows: Mark Emery, Esquire 410 North Second Street Harrisburg, PA 17101 LAW OFFICES OF CRAIG A. DIEHL L~cy Ar'Jay, Legal ~i/stant 3464 Trindle Road Camp Hill, PA 17011 (717) 763-7613 LORI a. DANIELS : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY PENNSYLVANIA EDWARD R. MYERS III IN RE: ARBITRATION PANEL · CIVIL ACTION - LAW : NO. 03-251 CIVIL TERM ORDER OF COURT AND NOW, June 23, 2004, the Court having been informed that Kenneth G. Reidenbach II, Esquire, Esquire, is unavailable for the above-captioned arbitration hearing, Susan Pickford, Esquire, is appointed in his stead· By the Court, Richard Stewart, Esquire Johnson, Duffle, Stewart & Weidner 301 Market Street, PO Box 109 Lemoyne, PA 17043-0109 Court Administrator LORI A. DANIELS Pla~tiff EDWARD R. MYERS, III Defender In The Court oi' Common Pleas of Cumberland County, Pennsylvania No. 03 251 civil mCivil Action - Law. Oath We do solemnly swear (or affmu) that we will support, obey and defend the Constitution of the Urfited States and the Constitution of th/s Commonwealth and that we will discharge the duties of our office with fidelity. Signature Signature Signature RICHARD W. STEWART ALBERT N. PETERLIN SUSAN K. PICKFORD Name (Cha/rman) Name Name ~O~$*~ ~)u ~-~- GATES HALBRUNNER & HATCH N/A Law Film Law Fhun Law Firm SUITE 100 301 Market St. 1013 Mumma Rd 3344 Trindle Rd Address Address Address Lemoyne PA 17043 Camp Hill PA 17011 Camp Hill PA 17011 City, Zip City, Zip City, Zil5 Award We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the following award: (Note: If damages for delay are awarded, they shall be separately stated.) WE FIND IN FAVOR OF THE DEFENDANT ON THE BASIS THAT THERE WERE NO DEFINED TERMS OTHER THEN PAYMENTS OF $200.00 P~ MONTH AND A 9% INTEREST RATE. Date of Hearing: Date of Award: 10/8/04 10/8/04 · Arbilrator, dissents. (Insert name if appl/cable.) (SEE ATTACHED AWARD) (SEE ATTACHED AWARD) Now, the entered upon the docket and notice thereof g/yen by mail to the parties or their attorneys. Arbitrators' compensation to be pa/d upon appeal: $ c~ ~0- t~ Notice of Entry of Award ,:0 ) ) ) In The Court of Common Pleas of Ctmlberland County, Pennsylvania No. dS, ~! O-~( 19 OATH We do solemnly swear (or affirm) that we will support, obey and defend · the Constitution of the United States and the Constitut$on of this Common- 'wealth and that we will discharge the duties of our office with fidelity· c~ ~;: ~, Cb~i a (or We, the undersigned arbitrators, having been duly appointed and sworn affirmed), make the following award: (Note: If damages for delay are awarded, they shall be separately stated.) (Insert name if applicable. ) Date of Hearing: ~q~ Date of Award: NOTICE 0F ENTRY 0F'AWA~ award was entered upon the docket and notice ~hereof given by mil to the parties or ~heir attorneys. · Arbitrator, dissents. Arbitrators' compensation to be paid upon appeal: s ~~ ~ ~ otary