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HomeMy WebLinkAbout03-0925REAGER & ADLER, PC BY: DEBRA DENISON CANTOR, ESQUIRE Attorney I.D. No. 66378 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Attorneys for Plaintiff ALEX AVITABILE, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : NO. 01- q A G V,' CIVIL ACTION -LAW LINDA AVITABILE, Defendant IN DIVORCE NOTICE TO DEFEND AND CLAIM RIGHTS You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take prompt action. You are warned that if you fail to do so, the case may proceed without you and a Decree of Divorce or annulment may be entered against you by the Court. A judgment may also be entered against you for any other claim or relief requested in these papers by the Plaintiff. You may lose money or property or other rights important to you. When the ground for divorce is indignities or irretrievable breakdown of the marriage, you may request marriage counseling. A list of marriage counselors is available in the office of the Prothonotary at the Cumberland County Courthouse, One Courthouse Square, Carlisle, Pennsylvania 17013. IF YOU DO NOT FILE A CLAIM FOR ALIMONY, DIVISION OF PROPERTY, LAWYER'S FEES OR EXPENSES BEFORE A DIVORCE OR ANNULMENT IS GRANTED, YOU MAY LOSE THE RIGHT TO CLAIM ANY OF THEM. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 /i? REAGER & ADLER, PC BY: DEBRA DENISON CANTOR, ESQUIRE Attorney I.D. No. 66378 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Attorneys for Plaintiff ALEX AVITABILE, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. CIVIL ACTION -LAW LINDA AVITABILE, Defendant IN DIVORCE AVISO PARA DEFENDER Y RECLAMAR DERECHOS USTED HA SIDO DEMANDADO EN LA CORTE. Si desea defenderse de las qque'as expuestas en las pagmas siguientes, debe tomar accion con prontitud. Se le avisa que si no se defiende, el caso puede proceder sin usted y decreto de divorcio o anuiamiento puede ser emitido en su contra por la Corte. Una decision puede tambien ser emitida en su contra por cualquier otra queja o compensacion reclamados por el demandante. Usted puede perder dmero, o propiedades u otros derechos importantes para usted. Cuando la base para el divorcio es indignidades o rompimiento irreparable del matrimonio, usted puede solicitar consejo matrimonial. Una lista de cone eros matrimoniales esta disponible en la oficina del Prothonotary, en Cumberland County Courthouse, One Courthouse Square, Carlisle, Pennsylvania 17013. SI USTED NO RECLAMA PENSION ALIMENTICIA, PROPIEDAD MARITAL, HONORARIOS DE ABOGADO U OTROS GASTOS ANTES DE QUE EL DECRETO FINAL DE DIVORCIO O ANULAMIENTO SEA EMITIDO, USTED PUEDE PERDER EL DERECHO A RECLAMAR CUALQUIERA DE ELLOS. USTED DEBE LLEVAR ESTE PAPEL A UN ABOGADO DE INMEDIATO. SI NO TIENE O NO PUEDE PAGAR UN ABOGADO. VAYA O LLAME A LA OFICINA INDICADA ABAJO PARA AVERIGUAR DONDE PUEDE OBTENER ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 Telefono (717) 249-3166 REAGER & ADLER, PC BY: DEBRA DENISON CANTOR, ESQUIRE Attorney I.D. No. 66378 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Attorneys for Plaintiff ALEX AVITABILE, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. LINDA AVITABILE, Defendant NO. CIVIL ACTION -LAW : IN DIVORCE COMPLAINT IN DIVORCE UNDER SECTION 3301(C) OR (D) OF THE DIVORCE CODE 1. Plaintiff is Alex Avitabile, an adult individual who resides at 19 York Street, Malverne, New York, 11565. 2. Defendant is Linda Avitabile, an adult individual who resides at 220 Deerfield Road, Camp Hill, Cumberland County, Pennsylvania, 17011. 3. Defendant has been bona fide residents in the Commonwealth for at least six (6) months immediately prior to the filing of this Complaint. 4. The Plaintiff and Defendant were married on August 19, 1972 in Camp Hill, Cumberland County, Pennsylvania. 5. The marriage is irretrievably broken. 6. Neither Plaintiff nor Defendant is in the military or naval service of the United States or its allies within the provisions of the Soldiers' & Sailors' Civil Relief Act of the Congress of 1940 and its amendments. 7. There have been no prior actions of divorce or for annulment between the parties in this or any other jurisdiction. 8. Plaintiff has been advised of the availability of marriage counseling and that Defendant may have the right to request the Court to require the parties to participate in such counseling. Being so advised, Plaintiff does not request that the Court require the parties to participate in counseling prior to a divorce decree being handed down by the Court. 9. Plaintiff avers that there are no children of the parties under the age of eighteen (18). 10. After ninety (90) days have elapsed from the date of the filing of this Complaint, Plaintiff intends to file an Affidavit consenting to a divorce. Plaintiff believes that Defendant may also file such an affidavit. 11. In the alternative, Plaintiff will file an Affidavit of Consent and provide the appropriate notices two (2) years from the date of separation. WHEREFORE, Plaintiff respectfully requests the Court to enter a Decree of Divorce, pursuant to Section 3301(c) or (d) of the Divorce Code. COUNTI EQUITABLE DISTRIBUTION 12. Paragraphs one (1) through eleven (11) of this Complaint are incorporated herein by reference. 13. Plaintiff and Defendant have acquired property, both real and personal, during their marriage. 14. The parties have acquired marital debt during the course of the marriage. 15. In the event the parties are unable to amicably resolve the property issues in this matter, Plaintiff requests this Honorable Court equitably divide all marital property and debt. 2 WHEREFORE, Plaintiff respectfully requests this Honorable Court to equitably divide all marital property and debt. Respectfully Submitted, REAGER & ADLER, PC Date: 2] By: f D. J'?? E DEPdSOW CANTOR, ESQUIRE Attorney LD. 378 2331 Market Street Camp Hill, PA 17011-4642 Telephone No. [717] 763-1383 Attorneys for Plaintiff 1\NTSERVER\Users\R&A Family Law\Client Directory\Avitabile-A\Pleadings\divorce complaint.wpd February 24, 2003 VERIFICATION I, ALEX AVITABILE, verify that the statements made in this 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. Section 4904, relating to unsworn falsification to authorities. DATE: ALEX AVITA ILE ? G ' - r 1 ALEX AVITABILE, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 03-925 CIVIL ACTION -LAW LINDA AVITABILE, Defendant IN DIVORCE PRAECIPE TO REINSTATE TO THE PROTHONOTARY: Kindly reinstate the Complaint in Divorce heretofore filed in this matter. Respectfully Submitted, Date: "l 12,jt)-b REAGER & ADLER, PC ISON CANTOR, ESQUIRE I.D. o. 66378 2331 Market Street Camp Hill, PA 17011-4642 Telephone No. (717) 763-1383 Attorneys for Plaintiff 'TRUE Py FRC" REWR© rl 8 here unW set"hwo Tes+Y °' in id ?' ?' SOZI 01 tie prehonotary tEAGER & ADLER, PC 3Y: DEBRA DENISON CANTOR, ESQUIRE kttomey I.D. No. 66378 1331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Attorneys for Plaintiff ALEX AVITABILE, Plaintiff V. LINDA AVITABILE, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL ACTION - LAW : IN DIVORCE NOTICE TO DEFEND AND CLAIM RIGHTS You have been sued in Court. If ou wish to defend against the claims set forth in the following pages, you must take prompt action. You are warned that if you fail to do so, the case may proceed without you and a Decree of Divorce or annulment maybe entered against you by the Court. A judgment may also be entered against you for an other claim or relief requested in these papers by the Plaintiff. You may lose money or property or other rights important to you. When the ground for divorce is indignities or irretrievable breakdown of the marriage, you may request marriage counseling. A list of marriage counselors is available in the office of the Prothonotary at the Cumberland County Courthouse, One Courthouse Square, Carlisle, Pennsylvania 17013. IF YOU DO NOT FILE A CLAIM FOR ALIMONY, DIVISION OF PROPERTY, LAWYER'S FEES OR EXPENSES BEFORE A DIVORCE OR ANNULMENT IS GRANTED, YOU MAY LOSE THE RIGHT TO CLAIM ANY OF THEM. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 717 249-3166 (800) 990-9108 TFWE COPY FROM RECo0iie'"", ! t 1's 4l, pY? e:gX'"p gI?g?`e??'{ re{$£??'yto set tx''?'y1`tie .. SF7'rd the .. S:'i :,DPst if :J .;t S E iNSi, ti • , W.. Th y ? r REAGER & ADLER, PC BY: DEBRA DENISON CANTOR, ESQUIRE Attorney I.D. No. 66378 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Attorneys for Plaintiff ALEX AVITABILE, V. LINDA AVITABILE, Plaintiff Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL ACTION -LAW IN DIVORCE AVISO PARA DEFENDER Y RECLAMAR DERECHOS LISTED HA SIDO DEMANDADO EN LA CORTE. Si desea defenderse de las que as expuestas en las paginas siguientes, debe tomar accion con prontitud. Se le avisa que si no se deflende, el caso puede proceder sin usted y decreto de divorcio o anuiamiento puede ser emitido-en su contra por la Corte. Una decision puede tambien ser emitida en su contra por cualquier otra queja o compensacion reclamados por el demandante. Usted puede perder dinero, o propiedades u otros derechos importantes para usted. Cuando la base para el divorcio es indignidades o rompilmento irreparable del matrimonio, usted puede solicitar consejo matrimonial. Una lista de conseJeros matrimoniales esta disponible en la oficma del Prothonotary, en Cumberland County Courthouse, One Courthouse Square, Carlisle, Pennsylvania 17013. SI USTED NO RECLAMA PENSION ALRvIENTICIA, PROPIEDAD MARITAL, HONORARIOS DE ABOGADO U OTROS GASTOS ANTES DE QUE EL DECRETO FINAL DE DIVORCIO O ANULAMIENTO SEA EMITIDO, USTED PUEDE PERDER EL DERECHO A RECLAMAR CUALQUIERA DE ELLOS. USTED DEBE LLEVAR ESTE PAPEL A UN ABOGADO DE INMEDIATO. SI NO TIENE O NO PUEDE PAGAR UN ABOGADO. VAYA O LLAME A LA OFICINA INDICADA ABAJO PARA AVERIGUAR DONDE PUEDE OBTENER ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 Telefono (717) 249-3166 REAGER & ADLER, PC BY: DEBRA DENISON CANTOR, ESQUIRE Attorney I.D. No. 66378 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Attorneys for Plaintiff ALEX AVITABILE, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. CIVIL ACTION -LAW LINDA AVITABILE, Defendant IN DIVORCE COMPLAINT IN DIVORCE UNDER SECTION 3301(C) OR (D) OF THE DIVORCE CODE 1. Plaintiff is Alex Avitabile, an adult individual who resides at 19 York Street, Malverne, New York, 11565. 2. Defendant is Linda Avitabile, an adult individual who resides at 220 Deerfield Road, Camp Hill, Cumberland County, Pennsylvania, 17011. 3. Defendant has been bona fide residents in the Commonwealth for at least six (6) months immediately prior to the filing of this Complaint. 4. The Plaintiff and Defendant were married on .August 19, 1972 in Camp Hill, Cumberland County, Pennsylvania. 5. The marriage is irretrievably broken. 6. Neither Plaintiff nor Defendant is in the military or naval service of the United States or its allies within the provisions of the Soldiers' & Sailors' Civil Relief Act of the Congress of 1940 and its amendments. 7. There have been no prior actions of divorce or for annulment between the parties in thi, or any other jurisdiction. 8. Plaintiff has been advised of the availability of marriage counseling and that Defendant may have the right to request the Court to require the parties to participate in such counseling. Being so advised, Plaintiff does not request that the Court require the parties to participate in counseling prior to a divorce decree being handed down by the Court. 9. Plaintiff avers that there are no children of the parties under the age of eighteen (18). 10. After ninety (90) days have elapsed from the date of the filing of this Complaint, Plaintiff intends to file an Affidavit consenting to a divorce. Plaintiff believes that Defendant may also file such an affidavit. 11. In the alternative, Plaintiff will file an Affidavit of Consent and provide the appropriate notices two (2) years from the date of separation. WHEREFORE, Plaintiff respectfully requests the Court to enter a Decree of Divorce, pursuant to Section 3301(c) or (d) of the Divorce Code. COUNTI EQUITABLE DISTRIBUTION 12. Paragraphs one (1) through eleven (11) of this Complaint are incorporated herein by reference. 13. Plaintiff and Defendant have acquired property, both real and personal, during their marriage. 14. The parties have acquired marital debt during the course of the marriage. 15. In the event the parties are unable to amicably resolve the property issues in this matter, Plaintiff requests this Honorable Court equitably divide all marital property and debt. 2 WHEREFORE, Plaintiff respectfully requests this Honorable Court to equitably divide all marital property and debt. Respectfully Submitted, REAGER & ADLER, PC Date: BY: J- -2?L DE DEPMOMN CANTOR, ESQUIRE Attorney I.D. 378 2331 Market Street Camp Hill, PA 17011-4642 Telephone No. [7171763-1383 Attorneys for Plaintiff 3 ANTSERVEMUsersMA Family Law\Client DirectorylAvilabile-A\Pleadings\divorce compiaint.wpd February 24, 2003 VERIFICATION I, ALEX AVITABILE, verify that the statements made in this 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. Section 4904, relating to unsworn falsification to authorities. DATE: 3 ALEX AVITA E ri [ i-- t "O O m Q N O D ALEX AVITABILE V. LINDA AVITABILE, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA NO. 03 - 925 Defendant IN DIVORCE ACCEPTANCE OF SERVICE 1 the undersigned , Richard C. Rupp, attorney for Linda Avitabile, being authorized to do so, hereby accept service of the divorce complaint filed in the above captioned action. RUPP ANDAkI fitted, Richard C. Ru P Sup. Court I.D. No.: 34832 355 North 21 st Street, Suite 205 Camp Hill, PA 17011 (717) 761-3459 Attorney for Defendant w a Fv5 t? 1 ALEX AVITABILE, V. LINDA AVITABILE, AND NOW, this Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-925 CIVIL ACTION - LAW Defendant : IN DIVORCE PETITION FOR SPECIAL RELIEF day of February, 2004, comes Petitioner Alex C. Avitabile, by and through his counsel REAGER & ADLER, PC, and petitions this Court for special relief as follows: 1. A Divorce Complaint was filed in this case on March 3, 2003. 2. Since the filing of the divorce, Respondent has resided in the marital home located at 220 Deerfield Road, Camp Hill, Cumberland County, Pennsylvania 17011. 3. On October 2, 2003, a Support Conference was held wherein Respondent was granted spousal support in the amount of $1,929.33. 4. At the time of the Support Conference, the mortgage was in default. Therefore, Petitioner requested the Domestic Relations Office to enter an Order authorizing him to pay the mortgage directly with the remaining balance of the support amount to be paid to Respondent. 5. Respondent declined to agree to this arrangement and indicated she would assume payment of the mortgage from the support money. 6. Since October 27, 2003 (which was the August payment), no payments have been made on the mortgage despite Respondent's receipt of spousal support. 7. Petitioner's credit rating is at substantial risk and the mortgage company has placed the home into foreclosure. WHEREFORE, Petitioner requests the following remedies: A. Petitioner be granted exclusive possession of the home for the purpose of its sale; B. The home be sold; B. Petitioner be granted credit against the support payment if he assumes the responsibility of paying the mortgage; C. Respondent be responsible for payment of the mortgage from March 2003 until the entry of this Order; and D. Any and all further relief the Court deems appropriate. Respectfully submitted, DATE Z Reager & Adler, PC ebr llem n C "or, Esquire Attorney ID No.: 378 2331 Market Street Camp Hill, PA 17011 (717) 763-1383 Attorney for Plaintiff Alex C. Avitabile VERIFICATION 1, Alex C. Avitabile, verify that the statements trade in the foregoing document are true and correct to the best of my knowledge, infonnation and belief. 1 understand that false statements herein are made subject to the penalties of 1S Pa.C.S. Section 4904, relating to unsworn falsification to authorities. Date_ 0214.1, xo y 7 ALEX C. AVITAIi]Lg CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a true and correct copy of the foregoing document was served on the following individuals via United States First Class Mail, postage prepaid as follows: Richard Rupp, Esquire 355 North 2151 Street Suite 205 Camp Hill, PA 17011 Dated: o - s- -n m s' c = a J { >44 n J J ro N 0 ALEX AVITABILE, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. LINDA AVITABILE, DEFENDANT 03-0925 CIVIL TERM ORDER OF COURT AND NOW, this 1Q day of February, 2004, a hearing on the within petition for special relief shall be conducted on Friday, March 5, 2004, at 1:30 p.m., in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania. Bytfte Co rt, v, C"% 1 P \ Edgar B. Bayley, J. Debra Denison Cantor, Esquire For Plaintiff Y ruLed_ ;2 /9'0 Richard Rupp, Esquire For Defendant :sal e??l I .. C r?:'?iJ 91 :01 h'o 61 6A hOOl ALEX AVITABILE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW LINDA AVITABILE, Defendant NO. 03-0925 CIVIL TERM ORDER OF COURT AND NOW, this 5th day of March, 2004, this matter is called on a petition for special relief, the parties having reached an agreement, it is ordered as follows: 1. Wife shall pay the reinstatement costs in full to include current arrearage on the mortgage on the marital residence and any fees and foreclosure costs associated therewith on or before March 31st of 20C4. 2. Wife shall pay the mortgace payments current each month hereafter that she continues to occupy the marital residence. 3. In the event wife is more than 20 days delinquent on any future mortgage payment, husband shall have exclusive possession of the marital residence within 20 days of that delinquency for the specific purpose of listing the marital property for sale at a fair market values and selling the property. 4. In the event the marital residence is sold, the net proceeds shall be placed in an interest bearing escrow account with the law offices of Reager and Adler, P.C., until the equitable distribution issues are resolved in this case. By the Coiirt, Edga ay ey CC L; t LL, c -lZ c? co Joanne H. Clough, Esquire For Plaintiff Richard Rupp, Esquire Q`F"t 3 o'r-oY For Defendant Sheriff 0 prs ALEX AVITABILE, Plaintiff V. LINDA AVITABILE, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-925 CIVIL ACTION - LAW IN DIVORCE PETITION FOR SPECIAL RELIEF AND CONTEMPT AND NOW, this w _day of April, 2004, comes Petitioner Alex Avitabile by and through his counsel Reager & Adler, PC, and petitions this Court for special relief as follows: On February 13, 2004, Petitioner filed a Petition for Special Relief due to Respondent's failure to pay the mortgage. 2. A hearing was scheduled on Friday, March 5, 2004. At the time of the hearing, the parties came to an agreement, which was entered as an Order of Court. A true and correct copy of said Order is attached hereto as Exhibit "A." 3. Pursuant to the terms of the Order, Respondent was to reinstate the mortgage no later than March 31, 2004. Counsel for Respondent provided verbal assurance that said payments had been made, pursuant to the terms of the Order. 4. However, Petitioner received a Notice for Foreclosure shortly thereafter, and has now received the notice scheduling the Sheriffs Sale for September. 5. Counsel for Respondent assures Petitioner that said payments have been made and that the mortgage has been reinstated. However, no written verification of such has been provided. 6. Pursuant to the terms of the Order of Court dated March 5, 2004, in the event that Respondent is twenty or more days delinquent on the mortgage payment, the home is to be listed for sale at a fair market value. This petition requests this Honorable Court to Order the listing of the martial property. 8. Petitioner is willing to waive exclusive possession of the marital residence as long as Respondent continues to pay the mortgage expenses associated with the home. Respondent is on Contempt and Petitioner requests fees and costs in the amount of $500. 10. Respondent continues to receive support in excess of $1,900 per month. 11. Petitioner requests this Honorable Court to permit him to pay $1,452 per month to the mortgage company and to be waged attached for $497.33 per month, which is the balance of the support, pursuant to the Order. 12. Petitioner is concerned that without this direct payment, the mortgage will continue to be in default. WHEREFORE, Petitioner requests this Honorable Court to Order the home for sale at a fair market value. Respectfully submitted, Reager & Adler, PC 4 /24) 1 'ju? (717) 763-1383 ALEX AVITABILE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW LINDA AVITABILE, Defendant NO. 03-0925 CIVIL TERM ORDER OF COURT AND.NOW, this 5th day of March, 2004, this matter is called on a petition for special relief, the parties having reached an agreement, it is ordered as follows: 1. Wife shall pay the reinstatement costs in full to include current arrearage on the mortgage on the marital residence and any fees and foreclosure costs associated therewith on or before March 31st of 2004. 2. Wife shall pay the mortgage payments current each month hereafter that she continues to occupy the marital residence. 3. In the event wife is more than 20 days delinquent on any future mortgage payment, husband, shall have exclusive possession of the marital residence within 20 days of that delinquency for the specific purpose of listing the marital property for sale at a fair market value and selling the property. 4. In the event the marital residence is sold, the net proceeds shall be placed in an interest bearing escrow account with the law offices of Reager and Adler, P.C., until the equitable distribution issues are resolved in this case. By the Court, Edga 'a ey Joanne H. Clough, Esquire For Plaintiff Richard Rupp, Esquire For Defendant Sheriff prs TRUE COPY FROM RECORD In Yedmony whered, I here unto set my hand and they of s?aldd Court at Car We. P& Chis-Jr7-?'ad2U496.1 '- hoProt noterr CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a true and correct copy of the foregoing Petition for Special Relief was served on the following individuals via United States First Class Mail, postage prepaid as follows: Richard Rupp, Esquire 355 North 215 Street Suite 205 Camp Hill, PA 17011 Dated: 1?1 1)e a ison.S:Ator, Esquire At ey o, 66378 2331 Market Street Camp Hill, PA 17011 (717)763-1383 Attorney for the Plaintiff Alex Avitabile 0 0 r T'?? 'x`17 T z m v?;> w -,)M r IV t F ALEX AVITABILE, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. LINDA AVITABILE, DEFENDANT 03-0925 CIVIL TERM ORDER OF COURT AND NOW, this LA*?N day of May, 2004, a Rule is entered against defendant, Linda Avitabile, to show cause why (1) she should not be adjudicated in contempt, and (2) why an order of special relief should not be entered. Rule returnable at a hearing to be conducted in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania at 11:00 a.m., Thursday, May 13, 2004. By the Court, / Edgar Et. Bayley, J. Debra Denison Cantor, Esquire For Plaintiff Richard Rupp, Esquire For Defendant C? sal 47, - L III , t 60 ci Wd h- 1"AlPOOZ ?i IONOr-10dd ]Hl d0 30L O-C lI d ALEX AVITABILE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW LINDA AVITABILE, Defendant NO. 03-0925 CIVIL TERM ORDER OF COURT AND NOW, this 13'h day of May, 2004, upon consideration of Plaintiff's Petition for Special Relief and Contempt, and following a telephone conference in which Plaintiff was represented by Debra Denison Cantor, Esq., and Defendant was represented by Richard Rupp, Esq., and pursuant to an agreement of counsel, the petition is deemed moot based upon an agreement of counsel on behalf of the parties which will be contained in a proposed order to be submitted by counsel to the court. BY THE COURT, vl ebra Denison Cantor, Esq. 2331 Market Street Camp Hill, PA 17011 Attorney for Plaintiff Richard Rupp, Esq. 355 North 2151 Street Suite 205 Camp Hill, PA 17011 Attorney for Defendant . Wesley Ole , r.., J. 05 -13-0 :rc Cl :Z P3 Cl 49,4Wz ??i!aa'1-•4??!?i ALEX AVITABILE, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 03-925 CIVIL ACTION - LAW IN DIVORCE LINDA AVITABILE, PACSES CASE NO. 295105505 Defendant DOCKET NO. 00466 S 2003 IN SUPPORT ORDER AND NOW, this day of May, 2004, the Stipulation hereto is made an Order of Court. 60e 0 BY THE COURT , Id S, :Q HId LZ OW W01 AuulO?,OH1Odd 3H1 3O n 1.4 ALEX AVITABILE, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA 03-925 CIVIL ACTION - LAW NO V. . IN DIVORCE LINDA AVITABILE, PACSES CASE NO. 295105505 Defendant DOCKET NO. 00466 S 2003 IN SUPPORT STIPULATION OF THE PARTIES AND NOW comes Alex Avitabile (hereinafter "Husband") by and through his counsel Debra Denison Cantor, Esquire, and Linda Avitabile; (hereinafter "Wife") by and through her counsel Richard Rupp, Esquire and agree as follows: WHEREAS, Petitioner Alex Avitabile filed an initial contempt petition on April 30, 2004; WHEREAS, a hearing on this matter was scheduled on May 13, 2004; WHEREAS, the parties have come to a resolution in this regard and desire this Stipulation to be made into an Order of Court. NOW, THEREFORE intending to be legally bound hereby, the Parties agree as follows: 1. Wife hereby confirms that she has reinstated the mortgage on the marital home and that it has been paid through the month of May 2004. If it is determined that said payments have not been made, Wife shall bring the mortgage payment current no later than May 20, 2004. 2. If Wife remains in the home effective June; 1, 2004 her support payment shall be reduced by $1,724 per month, which accounts for the monthly mortgage payment as well as the mortgage contribution. The remainder of the support Order shall remain intact. Thereafter, beginning June 1, 2003 and continuing until the sale of the home, Husband agrees to be solely responsible for the payment of the mortgage. 3. If wife moves herself and all belongings from the home prior to June 1, 2004, the parties agree that they shall divide the payment of the mortgage. Wife's support payments shall be reduced by $974 per month, which accounts for a 50% division of the mortgage and the removal of the mortgage contribution. The parties reserve the right to raise the issue of credits for the mortgage payments with the Master. The remainder of the support Order shall remain intact. 4. Wife has executed a listing contract with Lee Smith for the sale of the home. Husband agrees to execute this listing agreement within seven (7) days of the date of this stipulation. NOW THEREFORE, intending to be legally bound, the parties hereto set their Richard Rupp, Esquire signatures. @] 05/14/E004 10:88 FAX 789 1907 REAGER&AM.ER 00 4/0 05 ---- ALEX AVITABILE, Plaintiff V. LINDA AVITABILE, Defendant IN THE COURT OF CiDMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-925 CIVIL ACTION - LAW IN DIVORCE PACSES CASE NO. x95105505 DOCKET NO, 00466 S 2003 IN SUPPORT STIPULATION OF THE PARTIES AND NOW comes Alex Avitabile (hereinafter "Husband") by and through his counsel Debra Denison Cantor, Esquire, and Linda Avitabile (hereinafter "Wife's by and through her counsel Richard Rupp, Esquire and agree as follows: vyIffREAS, Petitioner Alex Avitabile filed an uiitial contempt petition on April 30,2004; WMREAS, a hearing on this matter was scheduled on May 13, 2004; VMEREAs, the parties have come to a resolution in this regard and desire this Stipulation w be made into an Order of Court. follows: NOW, THEREFORE intending to be legally bound hereby, the Parties agree as Wife hereby confirms that she has reinstated the mortgage on the marital home and that it has been paid through the month of May 2004. If it is determined that said payments have not been made, Wife shall bring the mortgage payment current no later than May 20, 2004. 2. If Wife remains in the home effective June 1, 2004 her support payment shall be reduced by 51,724 per month, which accounts for the monthly mortgage payment as well as the mortgage contribution. The remainder of the support Order shall remain 05!14/2004 10:90 FAX 709 1507 REAr,ER&ADLER ?OOSi005 intact. Thereafter, beginning June 1, 2003 and continuing until the sale of the home, Husband agrees to be solely responsible for the payment of the mortgage. I If Wife moves herself and all belongings from the home prior to June 1, 2004, the parties agree that they shall divide the payment of the mortgage, Wife's support payments shall be reduced by $974 per month, which accounts for a s0% division of the mortgage and the removal of the mortgage contribution. The parties reserve the right to raise the issue of credits for the mortgage payments with the Master. The remainder of the support order shall remain intact. 4. Wife has executed a listing contract with Lee Smith for the sale of the home. Husband agrees to execute this listing agreement within seven (7) days of the date of this stipulation. NOW THEREFORE, intending to be legally bound, the parties hereto set their signatures, Alex Avitabile vs Case No. 03-925 Linda Avitabile To the Court: Statement of Intention to Proceed Plaintiff, Alex Avitabile intends to proceed with the above captioned matter. Print Name Debra D. Cantor, Esg • Sign a Date: 10/16/07 Attorneyfor Plaintiff, Alex Avitabile Explanatory Comment The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the termination of inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit comment. 1. Rule of civil Procedure New Rule of Civil Procedure 230.2 has been promulgated to govern the termination of inactive cases within the scope of the Pennsylvania Rules of Civil Procedure. The termination of these cases for inactivity was previously governed by Rule of Judicial Administration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice, preempting local rules. This rule was promulgated in response to the decision of the Supreme Court in Shop v. Eagle, 551 Pa. 360,710 A.2d 1104 (1998) in which the court held that "prejudice to the defendant as a result of delay in prosecution is required before a case maybe dismissed pursuant to local rules implementing Rule of Judicial Administration 1901." Rule of Judicial Administration 1901(6) has been amended to accommodate the new rule of civil procedure. The general policy of the prompt disposition of matters set forth in subdivision (a) of that rule continues to be applicable. II Inactive Cases The purpose of Rule 230.2 is to eliminate inactive cases from the judicial system. The process is initiated by the court. After giving notice of intent to terminate an action for inactivity, the course of the procedure is with the parties. If the parties do not wish to pursue the case, they will take no action and "the Prothonotary shall enter an order as of course terminating the matter with rr_judice for failure to prosece?_e." if a party wis' es t„ p,?rsde flee ma---r, ne. or She will file a notice of intention to proceed and the action shall continue. a. Where the action has been terminated If the action is terminated when a party believes that it should not have been terminated, that party may proceed under Rule230(d) for relief from the order of termination. An example of such an occurrence might be the termination of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file the notice of intention to proceed. The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of the entry of the order of termination on the docket, subdivision (d)(2) provides that the court must grant the petition and reinstate the action. If the petition is filed later than the thirty-day period, subdivision (d)(3) requires that the plaintiff must make a show in to the court that the petition was promptly filed and that there is a reasonable explanation or legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of termination on the docket and for the failure to file the petition within the thirty-day period under subdivision (d)(2). B. Where the action has not been terminated An action which has not been terminated but which continues upon the filing of a notice of intention to proceed may have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a common law non pros which exits independently of termination under Rule 230.2. ? ? ? .. , ?- ? .., . -?- . , _. _4 ; , r' ` '"? ' <. c'ri a? . r N ? McNEES WALLACE & NURICK LLC By: Debra Denison Cantor I.D. No. 66378 100 Pine Street Harrisburg, PA 17108-1166 (717) 232-8000 (717) 237-5300 facsimile dcantor(&-mwn.com Attorneys for Plaintiff ALEX AVITABILE, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. LINDA AVITABILE, Defendant NO. 03-925 IN DIVORCE MOTION FOR APPOINTMENT OF MASTER Plaintiff, Alex Avitabile, moves the court to appoint a Master with respect to the following claims: ® Divorce ? Annulment ? Alimony ? Alimony Pendente Lite and in support of the Motion states: ® Distribution of Property ? Support ? Counsel Fees ? Costs and Expenses 1. Discovery is complete as to the claims for which the appointment of master is requested. 2. The non-moving party has appeared in the action by her counsel, Elizabeth B. Stone, Esquire. 3. The statutory grounds for divorce are 3301(c) or (d). 4. The action is contested with respect to the following claims: divorce and equitable distribution 5. The action does not involve complex issues of law or fact. 6. The hearing is expected to take one (1) day. P, 7. Additional information, if any, relevant to the motion: None. ?' I P"4?? Date: March 13, 2009 Na e' Debra . ntor Attorney for Plaintiff AND NOW. 200, Esquire, is appointed master with respect to the following claims: BY THE COURT: J. MOVING PARTY NAME: Alex Avitabile ATTORNEY'S NAME: Debra D. Cantor ATTORNEY'S ADDRESS: 100 Pine Street Harrisburg, PA 17101 ATTORNEY'S TELEPHONE NO.: 717-237-5297 ATTORNEY'S E-MAIL: dcantor _mwn.com NON-MOVING PARTY NAME: Linda Avitabile ATTORNEY'S NAME: Elizabeth B. Stone ATTORNEY'S ADDRESS: 414 Bridge Street New Cumberland, PA 17070-1927 ATTORNEY'S TELEPHONE NO.: 717-774-7435 ATTORNEY'S E-MAIL: estone _stonelaw.net -2- CERTIFICATE OF SERVICE The undersigned hereby certifies that on the 13_?'day of March, 2009, a true and correct copy of the foregoing document was served by first-class mail, postage prepaid, upon the following: Elizabeth B. Stone, Esquire Stone, LaFaver & Shekletski 414 Bridge Street New Cumberland, PA 17070 Linda Avitabile 1471 Maplewood Drive New Cumberland, PA 17070 nifer L. Ke n, Paralegal 1 11,2 rs:, t -17 1 MCNEES WALLACE & NURICK LLC BY: DEBRA DENISON CANTOR, ESQUIRE Attorney I.D. No. 66378 100 Pine Street Harrisburg, PA 1717108-1166 Telephone: (717) 232-8000 Facsimile: (717) 260-1667 dcantora-mwn.com Attomeys for Plaintiff ALEX AVITABILE, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 03-925 CIVIL TERM LINDA AVITABILE, : CIVIL ACTION - LAW Defendant : IN DIVORCE INVENTORY OF PLAINTIFF PURSUANT TO Pa. R.C.P. 1920.33(a.) 19 Plaintiff files the following Inventory of all property owned or possessed by either party at the time this action was commenced and all property transferred within the preceding three years. 19 Plaintiff verifies that the statements made in this inventory are true and correct. N Plaintiff understands that false statements herein are made subject to the penalties of 18 Pa. C.S.. 4904 relating to unswom falsification to authorities. Alex Avitabile, Plaintiff Date FAA-, ,2 3 ;?6 0 9 ASSETS OF PARTIES ASSETS OF PARTIES ® Plaintiff marks on the list below those items applicable to the case at bar and itemizes the assets on the following pages. ® 1. Real property ® 2. Motor vehicles ® 3. Stocks, bonds, securities and options ® 4. Certificates of deposit ® 5. Checking accounts, cash ® 6. Savings accounts, money market and savings certificates ? 7. Contents of safe deposit boxes ? 8. Trusts ® 9. Life insurance policies (indicate face value, cash surrender value and current beneficiaries) ® 10. Annuities ? 11. Gifts ? 12. Inheritances ? 13. Patents, copyrights, inventions, royalties ? 14. Personal property outside the home ? 15. Businesses (list all owners, including percentage of ownership, and officer/director positions held by a party with company) ? 16. Employment termination benefits-severance pay, workman compensation claim/award ? 17. Profit-sharing plans ® 18. Pension plans (indicate employee contribution and date plan vests) ® 19. Retirement plans, Individual Retirement Accounts ? 20. Disability payments ? 21. Litigation claims (matured and unmatured) ? 22. MilitaryN.A. benefits ? 23. Education benefits ® 24. Debts due, including loans, mortgages held ® 25. Household furnishings and personalty (include as a total category and attach itemized list if distribution of such assets is in dispute) ? 26. Other 2 MARITAL PROPERTY ® Plaintiff lists all marital property in which either or both spouses have a legal or equitable interest individually or with any other person as of the date this action was commenced: Item Number Description of Property Names of all Owners 1 Commerce Bank Escrow Account Alex C. Avitabile 2 Inte ri Bank Account Alex C. Avitabile 3 SERS Retirement Account Linda Avitabile 2 Gannett Fleming 401 k Plan Alex C. Avitabile 3 Gannet Fleming, Inc. Pension Plan Alex C. Avitabile 4 Wa oint Bank Retirement Acct. Linda M. Avitabile 5 MetLife Variable Annuity Acct. Alex C. Avitabile 6 American Funds 403(b) Acct. Linda M. Avitabile 7 Fidelity Roth IRA Acct. Linda M. Avitabile 8 Commerce Bank Checking Acct. Linda M. Avitabile 9 Commerce Bank Savings Acct. Linda M. Avitabile 10 Wa Point Bank Acct. Linda M. Avitabile 11 PNC Bank Savings Acct. Linda M. Avitabile & Alex C. Avitabile 12 Prudential Life Insurance Policy Linda M. Avitabile 13 Proceeds from sale of Husband's New Cumberland Property in unknown account in wife's name alone Linda M. Avitabile 3 NON-MARITAL PROPERTY ® Plaintiff lists all property in which a spouse had a legal or equitable interest which is claimed to be excluded from marital property: Item Number Description of Property Names of all Owners 1 post separation contributions to accounts and Alex C. Avitabile retirement 2 Astoria Bank Account containing proceeds from Alex C. Avitabile life insurance policy 3 Citibank Checking and Savings Accounts Alex C. Avitabile 4 PROPERTY TRANSFERRED Person To Item Date of Whom Number Description of Property Transfer Consideration Transferred 1 Marital Home at 220 8/16/04 $209,000 Douglas & Tara Deerfield Road, Ottenberg Mechanicsburg, PA 2 Oppenheimer Investment 8/11/03 Acct. 3 Putnam Investments IRA 2003 4 Waypoint Bank Passbook Statement Account 5 Waypoint Bank Focus Fifty Account LIABILITIES Item Number Description of Liabilities Names of All Creditors Names of All Debtors 1 Education Finance Account Wachovia Alex C. Avitabile 2 Education Loan Great Lakes Alex C. Avitabile 3 Visa Credit Card Chase Alex C. Avitabile 4 Mastercard Credit Card Citibank Alex C. Avitabile ,? ? ?..> ::? `? - - :: ?. ? _ ? l.? ? •• j " `. ?? •. y N McNees Wallace & Nurick LLC attorneys at law McNEES WALLACE & NURICK LLC By:. Debra D. Cantor Attorney ID No. 66378 100 Pine Street Harrisburg, PA 17108-1166 (717) 237-5478 (717) 260-1667 facsimile dcantorO-mwn.com Attorneys for Plaintiff ALEX AVITABILE, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 03-925 CIVIL TERM LINDA AVITABILE, CIVIL ACTION - LAW Defendant IN DIVORCE NOTICE TO THE DEFENDANT If you wish to deny any of the statements set forth in this affidavit, you must file a counteraffidavit within twenty (20) days after this affidavit has been served on you or the statements will be admitted. PLAINTIFF'S AFFIDAVIT UNDER SECTION 3301(D) OF THE DIVORCE CODE 1. The parties physically separated in 1997 and a divorce complaint was filed on March 3, 2003. The parties have continued to live separate and apart for a period of at least two years. 2. The marriage is irretrievably broken. P.O. Box 1166.100 PINE STREET - HARRISBURG, PA 17108-1166 - TEL: 717.232.8000 - FAx: 717.237.5300 - WWW.MWN.COM COLUMBUS, OH - STATE COLLEGE, PA - LANCASTER, PA - HAZLETON, PA - WASHINGTON, DC 3. 1 understand that I may lose rights concerning alimony, division of property, lawyer's fees or expenses if 1 do not claim them before a divorce is granted. I verify that the statements made in this affidavit are true and correct. 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. 'I ,r ! 3?oZo? 9 Alex Avitab le, PI trtf W. 0 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by first-class mail, postage prepaid, upon the following: Elizabeth B. Stone, Esquire Stone, LaFaver & Shekletski 414 Bridge Street New Cumberland, PA 17070 fifer L. Keen, P alegal Dated: March 16, 2009 r'' r {7 T7 ? P 4.. `ri w MAR 1 8 2009 A McNEES WALLACE & NURICK LLC By: Debra Denison Cantor I.D. No. 66378 100 Pine Street Harrisburg, PA 17108-1166 (717) 232-8000 (717) 237-5300 facsimile dcantor ,mwn.com Attorneys for Plaintiff ALEX AVITABILE, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 03-925 LINDA AVITABILE, Defendant IN DIVORCE MOTION FOR APPOINTMENT OF MASTER Plaintiff, Alex Avitabile, moves the court to appoint a Master with respect to the following claims: ® Divorce ? Annulment ? Alimony ? Alimony Pendente Lite and in support of the Motion states: ® Distribution of Property ? Support ? Counsel Fees ? Costs and Expenses 1. Discovery is complete as to the claims for which the appointment of master is requested. 2. The non-moving party has appeared in the action by her counsel, Elizabeth B. Stone, Esquire. 3. The statutory grounds for divorce are 3301(c) or (d). 4. The action is contested with respect to the following claims: divorce and equitable distribution 5. The action does not involve complex issues of law or fact. C 6. The hearing is expected to take one (1) day. 7. Additional information, if any, relevant to the motion: None. ?, jp,,4 Date: March 13, 2009 Na Debra ntor Attorney for Plaintiff AND NOW. 200 GAO, A6esquire, is appointed master with respect to the following claims: MOVING PARTY N E: Alex Avitabile ORNEY'S NAME: Debra D. Cantor ATTORNEY'S ADDRESS: 100 Pine Street Harrisburg, PA 17101 ATTORNEY'S TELEPHONE NO.: 717-237-5297 ATTORNEY'S E-MAIL: dcantor _mwn.com r ,c A? NON-MOVING PARTY NAM Linda Avitabile ORNEY'S NAME: Elizabeth B. Stone ATTORNEY'S ADDRESS: 414 Bridge Street New Cumberland, PA 17070-1927 ATTORNEY'S TELEPHONE NO.: 717-774-7435 ATTORNEY'S E-MAIL: estone _stonelaw.net 0 -2- ?. ?"? r- ?' ,_ '` ?;? ? ?- ? e ,_ ? ! ? i 1 © r ?,`Y t`•1 <, ? ? ? ,_ ? 3 ? ? C?'LL cS` ?? N ALEX AVITABILE, Plaintiff V. LINDA AVITABILE, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-925 CIVIL TERM CIVIL ACTION - LAW IN DIVORCE COUNTER-AFFIDAVIT UNDER S3301(D) OF THE DIVORCE CODE Che k either (a) or (b): (a) I do not oppose the entry of a divorce decree. (b) I oppose the entry of a divorce decree because (check (i), (ii) or both): (i) The parties to this action have not lived separate and apart for a period of at least two years. (ii) The marriage is not irretrievably broken. 2. Check either (a) or (b): (a) I do not wish to make any claims for economic relief. I understand that I may lose rights concerning alimony, division of property, lawyers fees or expenses if I do not claim them before a divorce is granted. (b) I wish to claim economic relief which may include alimony, division of property, lawyer's fees or expenses or other important rights. I understand that in addition to checking (b) above, I must also file all of my economic claims with the Prothonotary in writing and serve them on the other party. If I fail to do so before the date set forth on the Notice of Intention to Request Divorce Decree, the divorce decree may be entered without further notice to me, and I shall be unable thereafter to file any economic claims. I verify that the statements made in this Counter-Affidavit are true and correct. 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: 4I?Ia 9 dftda, CGC?? Linda Avitabile, Defendant NOTICE: If you do not wish to oppose the entry of a divorce decree and you do not wish to make any claim for economic relief, you should not file this Counter-Affidavit. t t 2009 APR -8 A"Cl i't : 55 ALEX AVITABILE, Plaintiff VS. LINDA AVITABILE, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 03 - 925 CIVIL IN DIVORCE ORDER OF COURT AND NOW, this day of 2009, the economic claims raised in the proceedings having been resolved in accordance with a marital settlement agreement dated December 14, 2009, the appointment of the Master is vacated and counsel can file a praecipe transmitting the record to the Court requesting a final decree in divorce. BY THE COURT, Edg ioL/ cc: Debra A. Denison Cantor Attorney for Plaintiff Elizabeth B. Stone Attorney for Defendant w 4 '9-s l ;Z-// ? X? B. Bayley, P.J. Ri FD- C.i 'r uIE O HE F'?C)Tl w ;''CYTAR`C 2009 DEC 17 PM 2: 07 MARITAL SETTLEMENT AGREEMENT THIS AGREEMENT made this N ? ' " ` day of , 2009, by and between Alex Avitabile of Malverne, Nassau County, New York (hereinafter referred to as "Husband"), and Linda Avitabile of New Cumberland, Cumberland County, Pennsylvania (hereinafter referred to as "Wife") WITNESSETH: WHEREAS, the parties hereto are husband and wife, having been lawfully married on August 19, 1972 in Camp Hill, Cumberland County, Pennsylvania; WHEREAS, the parties are the parents of three children born during the course of the marriage, all of whom are emancipated; WHEREAS, the parties hereto are desirous of settling fully and finally their respective financial and property rights and obligations as between each other, including, without limitation, the settling of all matters between them relating to the ownership of real and personal property, and in general, the settling of any and all claims and possible claims raised in the divorce proceeding. AND NOW, THEREFORE, in consideration of these premises, and of the mutual promises, covenants, and undertakings hereinafter set forth, and for other good and valuable consideration, receipt and sufficiency 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. ADVICE OF COUNSEL. The provisions of this Agreement and their legal effect have been fully explained to the parties by their respective counsel, Debra D. Cantor, Esquire of McNees Wallace & Nurick, LLC for Husband and Elizabeth B. Stone, Esquire of Stone LaFaver & Shekletski for Wife. For purposes of contract interpretation and for the purpose of resolving ambiguity herein, Husband and Wife agree that this Agreement was prepared jointly by their respective attorneys. Each party acknowledges that he or she has received independent legal advice from counsel of his or her selection, and that each fully understands the facts and has been fully informed as to his or her legal rights and obligations, and each party acknowledges and accepts that this Agreement is, in the circumstances, fair and equitable, and that it is being entered into freely and voluntarily, after having received such advice and with such knowledge, and that execution of this Agreement is not the result of any duress or undue influence, and that it is not the result of any improper or illegal agreement or agreements. In addition, each party hereto acknowledges that he or she has been fully advised by his or her respective attorney of the impact of the Pennsylvania Divorce Code, whereby the court has the right and duty to determine all marital rights of the parties including divorce, alimony, alimony pendente lite, equitable distribution of all marital property or property owned or possessed individually by the other, counsel fees and costs of litigation and, fully knowing the same and being fully advised of his or her rights thereunder, each party hereto still desires to execute this Agreement, acknowledging that the terms and conditions set forth herein are fair, just and equitable to each of the parties, and waives his and her respective right to have the Court of Common Pleas of Cumberland County, or any other court of competent jurisdiction, make any determination or order affecting the respective parties' rights to a divorce, -2- /1J alimony, alimony pendente lite, equitable distribution of all marital property, counsel fees and costs of litigation. 2. DISCLOSURE OF ASSETS. Each of the parties hereto acknowledges that he or she is aware of his or her right to seek discovery, including but not limited to, written interrogatories, motions for production of documents, the taking of oral depositions, the filing of inventories, and all other means of discovery permitted under the Pennsylvania Divorce Code or the Pennsylvania Rules of Civil Procedure. Each of the parties further acknowledges that he or she has discussed with counsel the concept of marital property under Pennsylvania law and each is aware of his or her right to have the real and/or personal property, estate and assets, earnings and income of the other assessed or evaluated by the court of this Commonwealth or any other court of competent jurisdiction. Husband and Wife represent and warrant that each has disclosed to the other in full his or her respective assets, liabilities and income and that this Agreement was negotiated and entered into on the basis of those disclosures. The parties hereby acknowledge and agree that the division of assets as set forth in this Agreement is fair, reasonable and equitable and is satisfactory to them. The remedies available to either party for breach or violation of this provision shall be those remedies available pursuant to law and equity. Each party retains the right to assert a claim against the other for failure to fully and fairly disclose his or her income, assets and liabilities, if it is later determined that there has been a failure to disclose, including but not limited to a claim of constructive trust. -3- 3. PERSONAL RIGHTS. Husband and Wife may and shall, at all times hereafter, live separate and apart. Each shall be free from all control, restraint, interference and authority, direct or indirect, by the other in all respects as fully as if he or she were unmarried. Each may reside at such place or places as he or she may select. Each may, for his or her separate use or benefit, conduct, carry on or engage in any business, occupation, profession or employment which to him or her may seem advisable. This provision shall not be taken, however, to be an admission on the part of either Husband or Wife of the lawfulness of the cause that led to, or resulted in, the continuation of their living apart. 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 or in any manner whatsoever with him or her. Neither party will interfere with the use, ownership, enjoyment or disposition of any property now owned by or hereafter acquired by the other. 4. MUTUAL CONSENT DIVORCE. Husband has filed an action for divorce in Cumberland County, Pennsylvania filed to No. 03-925. Said action shall be limited to divorce and neither party may assert any ancillary economic claims otherwise authorized by the Divorce Code, which are specifically waived by the terms of this Agreement. Counsel for each party shall execute a Praecipe withdrawing all such ancillary claims now pending of record at or prior to the execution of this Agreement. The parties agree that each shall sign and have duly acknowledged an Affidavit of Consent to a divorce and a Waiver of Notice simultaneously with the execution of this Agreement, and shall have their counsel file the same within five (5) days of date of -4- -/It A4 execution of this Agreement. After both party's Affidavit and Waivers are filed, counsel for Husband shall promptly file a Praecipe to Transmit Record and Vital Statistics form to precipitate the prompt entry of a decree of divorce. 5. EQUITABLE DISTRIBUTION. It is the intention of the parties to effectuate an equal division of the marital estate. The paragraphs below set forth the manner in which the various assets and debts will be divided in order to accomplish said equal division. 5.1 Former Marital Home/Escrow Account. The parties acknowledge that they were the joint owners of a marital home located at 220 Deerfield Road, Camp Hill, PA 17011 ("Former Marital Home"). The parties further acknowledge that the Former Marital Home was sold on August 16, 2004 for $209,000 and that the proceeds from said sale were deposited into an escrow account and certificate of deposit held with Husband's attorney ("Escrow Account"). The parties acknowledge that by mutual agreement in 2009 each party received the sum of $17,500 as an advance against equitable distribution from the Escrow Account. The parties stipulate that the current balance of the Escrow Account is $159,468.27 earned from today until distribution. The parties agree that within ten (10) days of the date of execution of this Agreement, Husband shall receive a lump sum of $27,056 plus Y2 interest earned from today to distribution. Within five (5) days after Husband has received this lump sum from the Escrow Account, all remaining funds in the Escrow Account shall be distributed to Wife less $600 to be paid to Husband for his advance on the cost of a pension valuation, and the Escrow Account shall be closed. The parties agree that Husband shall retain any -5- q, -I and all funds that he receives from the Escrow Account pursuant to this Agreement, including the advance against equitable distribution, as his sole and separate property. Wife does hereby set over, transfer and assign to Husband any and all of her right, title, claim and interest in and to all or any portion of the funds that Husband receives from the Escrow Account pursuant to this Agreement. The parties agree that Wife shall retain any and all funds that she receives from the Escrow Account pursuant to this Agreement, including the advance against equitable distribution, as her sole and separate property. Husband does hereby set over, transfer and assign to Wife any and all of his right, title, claim and interest in and to all or any portion of the funds that Wife receives from the Escrow Account pursuant to this Agreement. The parties agree that all interest earned in 2009 shall be divided equally by the parties for tax purposes. All 1099s shall be provided to the parties within five (5) days of receipt. 5.2. Contents of Wife's Residence, Contents of Husband's Residence and Other Personal Propert y. 5.2.1. Husband shall and does hereby set over, transfer and assign to Wife all of his right, title, claim and interest in and to all of the contents of Wife's residence located at 1471 Maplewood Drive, New Cumberland, PA 17070, including but not limited to all furniture, furnishings, rugs, carpets, household appliances and equipment, clothes, jewelry, personally and other items of tangible property of whatever nature currently located in Wife's residence as well as other jewelry and personal property in Wife's possession as of the date of this Agreement. -6- 5.2.2. Wife shall and does hereby set over, transfer and assign to Husband all of her right, title, claim and interest in and to all of the contents of Husband's residence located at 19 York Street, Malverne, NY 11565, including but not necessarily limited to all furniture, furnishings, rugs, carpets, household appliances and equipment, clothes, jewelry, personalty and other items of tangible property of whatever nature currently located in Husband's residence, as well as other jewelry and personal property in Husband's possession as of the date of this Agreement. 5.3. Retirement Benefits. 5.3.1. Wife's SERS. The parties agree that Wife is a member of the Pennsylvania State Employees' Retirement System ("Wife's SERS"). The parties stipulate that the marital value of Wife's SERS is $46,742, and that the non-marital value of Wife's SERS is $107,013. The parties agree that Wife shall retain Wife's SERS as her sole and separate property. Husband does hereby set over, transfer and assign to Wife any and all of his right, title, claim and interest in and to all or any portion of Wife's SERS. 5.3.2. Wife's American Funds 403(b). The parties agree that Wife is the owner of an American Funds 403(b) Account ("Wife's 403(b)"), which is non- marital. The parties stipulate that the value of Wife's 403(b) is $48,818. The parties agree that Wife shall retain Wife's 403(b) as her sole and separate property. Husband does hereby set over, transfer and assign to Wife any and all of his right, title, claim and interest in and to all or any portion of Wife's 403(b). -7- A-A 5.3.3. Wife's Fidelity Roth IRA Account. The parties agree that Wife is the owner of a Fidelity Roth IRA Account ("Wife's Roth IRA"), which is non- marital. The parties stipulate that the value of Wife's Roth IRA is $21,241. The parties agree that Wife shall retain Wife's Roth IRA as her sole and separate property. Husband does hereby set over, transfer and assign to Wife any and all of his right, title, claim and interest in and to all or any portion of Wife's Roth IRA. 5.3.4. Husband's Gannett Fleming 401(k) and Related IRA. The parties agree that Husband is the owner of a Gannett Fleming 401(k) ("Husband's 401(k)"). The parties further agree that post-separation Husband transferred funds from Husband's 401(k) to a Prudential IRA ("IRA"). The parties stipulate that the marital value of Husband's 401(k) and Prudential IRA is $53,906, after credits for post- separation contributions. The parties agree that Husband shall retain Husband's 401(k) and Prudential IRA as his sole and separate property. Wife does hereby set over, transfer and assign to Husband any and all of her right, title, claim and interest in and to all or any portion of Husband's 401(k) and Related IRA. 5.3.5. Husband's Gannett Fleming Pension Plan. The parties agree that Husband is the owner of a Gannett Fleming Pension Plan ("Husband's Pension"), which is currently in pay status. The parties stipulate that the marital value of Husband's Pension is $160,257. The parties agree that Wife is listed as the 50% survivor beneficiary of Husband's Pension. The parties stipulate that the value of the 50% survivor benefit for Husband's Pension is $28,639. The parties agree that Wife shall remain listed as the 50% survivor beneficiary of Husband's Pension. The parties -8- A,4? further agree that aside from the survivor benefit to Wife, Husband shall retain Husband's Pension as his sole and separate property. Wife does hereby set over, transfer and assign to Husband any and all of her right, title, claim and interest in and to all or any portion of Husband's Pension, with the exception of the 50% survivor benefit as discussed herein. Should a Domestic Relations Order be necessary to implement this provision, Wife shall be solely responsible for its preparation, including cost. 5.3.6. Husband's MetLife IRA. The parties agree that Husband is the owner of a MetLife IRA #0136. The parties stipulate that the value of Husband's IRA is $22,142. The parties agree that Husband shall retain Husband's Annuity as his sole and separate property. Wife does hereby set over, transfer and assign to Husband any and all of her right, title, claim and interest in and to all or any portion of Husband's Annuity. 5.4. Financial Assets. 5.4.1. Citifund Account. The parties agree that Wife is the owner of a Citifund Account ("Wife's Citifund"), which was created post-separation. The parties stipulate that the value of Wife's Citifund is $1,693. The parties agree that Wife shall retain Wife's Citifund as her sole and separate property. Husband does hereby set over, transfer and assign to Wife any and all of his right, title, claim and interest in and to all or any portion of Wife's Citifund. 5.4.2. Proceeds from Oppenheimer Account Putnam and Waypoint/Pershing IRA. The parties agree that Wife liquidated the Oppenheimer account, Putnam account, and Waypoint/Pershing IRA post-separation and either -9- retained those proceeds or placed them into an account established post-separation. The parties agree that Wife shall retain the Proceeds from all such liquidations and be credited with the receipt of $6,951. Husband does hereby set over, transfer and assign to Wife any and all of his right, title, claim and interest in and to all or any portion of the Proceeds from these accounts. 5.5. Credit for Payment of Marital Debt. 5.5.1. Wachovia. The parties agree that following separation, Husband made payments totaling $13,580 on the Wachovia debt, which was a marital debt and shall receive credit for such in equitable distribution. 5.5.2. Great Lakes. The parties agree that following separation, Husband made payments totaling $21,561 on the Great Lakes debt, which was a marital debt and shall receive credit for such in equitable distribution. 5.5.3. Mastercard. The parties agree that following separation, Husband made payments totaling $455 on the Mastercard, which was a marital debt and shall receive credit for such in equitable distribution. 5.5.4. IRS Obligation. The parties agree that following separation, Wife made payments totaling $2,245 on the IRS Obligation, which was a marital debt and shall receive credit for such in equitable distribution. 5.5.5. Post Separation College Expenses. Wife shall receive credit for $10,245, payments on education debt. 5.6. Outstanding Great Lakes Debt. The parties agree that there is an outstanding balance due and owed on the Great Lakes debt. The parties stipulate that -10-1171 f_ the balance owed on the Great Lakes debt totals $17,256, and that this is marital debt. Husband agrees to be fully responsible for and to indemnify and hold Wife harmless from any and all liability for the outstanding Great Lakes debt. 5.7. Outstanding Joint Debts. Except as set forth herein, all other debts, contracts, obligations or liabilities incurred at any time in the past by either of the parties will be paid promptly by said party, unless and except as otherwise specifically set forth in this Agreement; and each of the parties hereto further promises, covenants and agrees that each will now and at all times hereafter save harmless and keep the other or his or her estate indemnified and saved harmless from all debts or liabilities incurred by him or her, as the case may be, and from all actions, claims and demands whatsoever with respect thereto, and from all costs, legal or otherwise, and counsel fees whatsoever appertaining to such actions, claims and demands. A liability not disclosed in this Agreement will be the sole responsibility of the party who has incurred or may hereafter incur it, and each agrees to pay it as the same shall become due, and to indemnify and hold the other party and his or her property harmless from any and all such debts, obligations and liabilities. Except as otherwise provided herein, from the date of execution of this Agreement, each party shall use only those credit cards and accounts for which that party is individually liable and the parties agree to cooperate in closing or transferring responsibility for any remaining accounts which provide for joint-liability, with the party who has used the joint account being responsible for paying any remaining balance. -11- 5.8. After-Acquired Property. Each of the parties shall hereafter own and enjoy, independently of any claim or right of the other, all items of property, be they real, personal or mixed, tangible or intangible, which are acquired by him or her after execution of this Agreement, with full power in him or her to dispose of the same as fully and effectively, in all respects and for all purposes, as though he or she were unmarried. 5.9. Property of Wife. The parties agree that Wife shall own, possess, and enjoy, free from any claim of Husband, the property awarded to her by the terms of this Agreement. Husband hereby quitclaims, assigns and conveys to Wife all such property, and waives and relinquishes any and all rights thereto, together with any insurance policies covering that property, and any escrow accounts relating to that property. This Agreement shall constitute a sufficient bill of sale to evidence the transfer of any and all rights in such property from Husband to Wife. 5.10. Property of Husband. The parties agree that Husband shall own, possess, and enjoy, free from any claim of Wife, the property awarded to him by the terms of this Agreement. Wife hereby quitclaims, assigns and conveys to Husband all such property, and waives and relinquishes any and all rights thereto, together with any insurance policies covering that property, and any escrow accounts relating to that property. This Agreement shall constitute a sufficient bill of sale to evidence the transfer of any and all rights in such property from Wife to Husband. 5.11. Assumption of Encumbrances. Unless otherwise provided herein, each party hereby assumes the debts, encumbrances, taxes and liens on all the -12- ,Id" /I property each will hold subsequent to the date of this Agreement, and each party agrees to indemnify and hold harmless the other party and his or her property from any claim or liability that the other party will suffer or may be required to pay because of such debts, encumbrances or liens. Each party in possession of property to be awarded to the other party warrants that all dues, fees, assessments, mortgages, taxes, insurance payments and the like attendant to such property are current, or if not current, notice of any arrearage or deficiency has been given to the receiving party prior to the execution of this Agreement. 5.12. Taxes. By this Agreement, the parties have intended to effectuate and equitably divide their marital property. The parties have determined that such division conforms to a right and just standard with regard to the rights of each party. Except as may be otherwise expressly provided herein, 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 a part of the marital estate. As a part of the division of the marital property and the marital settlement herein contained, each party shall receive each item of property at the tax basis that existed for the item immediately before the execution of this Agreement, and that this Agreement is not intended to affect the tax basis or tax status for the property received by the party. The parties agree to save and hold each other harmless from all income taxes assessed against the other resulting from the division of the property as herein provided. -13- The parties acknowledge that they have filed various joint income tax returns during the course of their marriage. In filing each such return, each party has relied exclusively upon the other party to provide truthful and accurate information relating to the other party's employment income, business income or deductions, or income from any other source. In the event that any additional taxes, penalties or interest are assessed as a result of any such joint return, the party responsible for under-reporting income or claiming any improper deduction shall indemnify and save the other party harmless from such tax liability, penalties, interest, attorney's fees or accountant's fees. 5.13. Indemnification of Wife. If any claim, action or proceeding is hereafter initiated seeking to hold Wife liable for the debts or obligations assumed by Husband under this Agreement, Husband will, at his sole expense, defend Wife against any such claim, action or proceeding, whether or not well-founded, and indemnify her and her property against any damages or loss resulting therefrom, including, but not limited to, costs of court and attorney's fees incurred by Wife in connection therewith. 5.14. Indemnification of Husband. If any claim, action or proceeding is hereafter initiated seeking to hold Husband liable for the debts or obligations assumed by Wife under this Agreement, Wife will, at her sole expense, defend Husband against any such claim, action or proceeding, whether or not well-founded, and indemnify him and his property against any damages or loss resulting therefrom, including, but not limited to, costs of court and attorney's fees incurred by Husband in connection therewith. -14- 5.15. Warranty as to Future Obligations. Except as set forth in this Agreement, Husband and Wife each represents and warrants to the other that he or she has not in the past or will not at any time in the future incur or contract any debt, charge or liability for which the other, the other's legal representatives, property or estate may be responsible. From the date of execution of this Agreement, each party shall use only those credit cards and accounts for which that party is individually liable and the parties agree to cooperate in closing any remaining accounts which provide for joint liability. Each party hereby agrees to indemnify, save and hold the other and his or her property harmless from any liability, loss, cost or expense whatsoever incurred in the event of breach hereof. 5.16. Release of Claims. Wife and Husband acknowledge and agree that the property dispositions provided for herein constitute an equitable distribution of their assets and liabilities pursuant to Section 3502 of the Divorce Code. Wife and Husband hereby waive any right to division of their property except as provided for in this Agreement. Furthermore, except as otherwise provided for in this Agreement, each of the parties hereby specifically waives, releases, renounces and forever abandons any claim, right, title or interest whatsoever he or she may have in property transferred to the other party pursuant to this Agreement or identified in this Agreement as belonging to the other party, and each party agrees never to assert any claim to said property or proceeds in the future. The parties hereby expressly release and relinquish, each to the other, every claim, demand, right and interest he or she may have in or against the other, or against his or her estate, together with any income or earnings -15- ?0-4 thereon, arising from and during the marriage and of or from any other reason growing out of the marital relationship. However, neither party is released or discharged from any obligation under this Agreement or any instrument or document executed pursuant to this Agreement. Husband and Wife shall hereafter own and enjoy independently of any claim or right of the other, all items of personal property, tangible or intangible, acquired by him or her from the date of execution of this Agreement with full power in him or her to dispose of the same as fully and effectively, in all respects and for all purposes, as though he or she were unmarried. 6. SPOUSAL SUPPORT/ALIMONY PENDENTE LITE/ALIMONY RELEASE: The parties acknowledge that by this Agreement they have each respectively secured sufficient financial resources to provide for his or her own comfort, maintenance and support. The parties do hereby acknowledge that inflation may increase or decrease, that their respective incomes and assets may substantially increase in value, that either may be employed or unemployed at various times in the future, and that notwithstanding these or other economic circumstances, which may be changes in circumstances of a substantial and continuing nature, the terms of this Agreement are just and reasonable. Therefore, except for the provisions of this Agreement, the parties hereby expressly waive, discharge and release any and all rights and claims which they may now or hereafter have, by reason of the parties' marriage, to alimony, alimony pendente lite, spousal support or maintenance, and they further release any rights they may have to seek modification of the terms of this Agreement in a court of law or equity, it being understood that the foregoing constitutes a final determination for all time of -16- .;eye. 'AA either party's obligation to contribute to the support and maintenance of the other. Except as provided for in this Agreement, it shall be, from the execution date of this Agreement, the sole responsibility of each of the respective parties to sustain himself or herself without seeking any additional spousal support from the other party. In the event that either of the parties shall seek a modification of the terms of this paragraph, or in the event that either party makes any claim for spousal support, alimony pendente lite or alimony other than as provided for by the terms of this Agreement, that party shall indemnify and hold the other party harmless from and against any loss resulting therefrom, including counsel fees and costs. 7. ACCEPTANCE AND RELEASES. Subject to the provisions of this Agreement, each party has released and discharged, and by this Agreement does for himself or herself and his or her heirs, legal representatives, executors, administrators and assigns, release and discharge the other of and from all causes of action, claims, rights, or demands, whatsoever in law or equity, which either of the parties ever had or now has against the other, except any or all causes of action for termination of the marriage by divorce or annulment and except for all causes of action for breach of any provisions of this Agreement. The 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 each other, and each party does hereby specifically release and waive any and all rights he or she might have to raise claims under the Divorce Code and any Amendments thereto including, but not limited to claims for equitable distribution of marital property, support, alimony, alimony pendente -17- lite, counsel fees or expenses or for any other provision for their support and maintenance, and any other charge of any nature whatsoever pertaining to any divorce proceeding which may have been or may be instituted by the parties in any court in the Commonwealth of Pennsylvania or any other jurisdiction and/or any divorce proceeding which may be instituted by either party in any court in the Commonwealth of Pennsylvania or any other jurisdiction or any other counsel fees, costs or expenses incurred or to be charged by any counsel arising in any manner whatsoever except for breach of this Agreement. The fact that a party brings an action to enforce this Agreement under the Divorce Code and any Amendments thereto, does not give either party the right to raise other claims under the Divorce Code, specifically waived and released by this provision and all rights and obligations of the parties arising out of the marriage shall be determined by this Agreement. 8. COUNSEL FEES, COSTS AND EXPENSES. Each party shall be responsible for his or her own legal fees, costs and expenses incurred in connection with their separation and/or the dissolution of their marriage. 9. WAIVER OF BENEFICIARY DESIGNATIONS: Unless otherwise expressly set forth in this Agreement, each party hereto specifically waives any and all beneficiary rights and any and all rights as a surviving spouse in and to any asset, benefit, policy, annuity or like program or account carrying a beneficiary designation which belongs to the other party under the terms of this Agreement, including, but not limited to, pensions and retirement plans of any sort or nature, deferred compensation plans, life insurance policies, annuities, stock accounts, bank accounts, final paychecks -18- or any other post-death distribution scheme. Each party expressly states that it is his or her respective intention to revoke by the terms of this Agreement any beneficiary designations naming the other which are in effect as of the date of execution of this Agreement. In the event that the beneficiary designation is not formally changed prior to the death of the party, such that the other party continues to be named as beneficiary with no alternate beneficiary otherwise designated, the beneficiary shall be deemed to be the Estate of the deceased party and all benefits shall be distributed to the personal representative for the Estate of the deceased party, free of any claim by the other party. 10. WAIVER OF INHERITANCE RIGHTS. Effective upon the signing of this Agreement, Husband and Wife each waives all rights of inheritance in the estate of the other, any right to elect to take against the Will or any trust of the other or in which the other has an interest, and each of the parties waives any additional rights which said party has or may have by reason of their marriage, except the rights saved or created by the terms of this Agreement. This waiver shall be construed generally and shall include, but not be limited, to a waiver of all rights provided under the laws of Pennsylvania, or any other jurisdiction, and shall include all rights under the Pennsylvania Divorce Code. 11. MODIFICATION. No modification, rescission, or amendment to this Agreement shall be effective unless in writing signed by each of the parties hereto. 12. SEVERABILITY. If any provision of this Agreement is held by a court of competent jurisdiction to be void, invalid or unenforceable, the remaining provisions -19- hereof shall nevertheless survive and continue in full force and effect without being impaired or invalidated in any way. 13. BREACH. If either party hereto is in breach of any provision hereof, the other party shall have the right, at his or her election, to sue for damages for such breach, or seek such other remedies or relief as may be available to him or her. The non-breaching party shall be entitled to recover from the breaching party all reasonable costs, expenses and legal fees actually incurred in the enforcement of the rights of the non-breaching party. 14. WAIVER OF BREACH. The waiver by one party of any breach of this Agreement by the other party will not be deemed a waiver of any other provision of this Agreement. 15. NOTICE. Any notice to be given under this Agreement by either party to the other shall be in writing and may be affected by registered or certified mail, return receipt requested. Notice to Wife will be sufficient if made or addressed to the following: Linda Avitabile 1471 Maplewood Drive New Cumberland, PA 17070 and to Husband, if made or addressed to the following: Alex Avitabile 19 York Street Malverne, NY 11565 Each party may change the address for notice to him or her by giving notice of that change in accordance with the provisions of this paragraph. -20- .&a- , 4'A 16. APPLICABLE LAW. All acts contemplated by this Agreement shall be construed and enforced under the laws of the Commonwealth of Pennsylvania. 17. DATE OF EXECUTION. The "date of execution" or "execution date" of this Agreement shall be defined as the date upon which the parties signed the Agreement if they do so on the same date, or if not on the same date, then the date on which the Agreement was signed by the last party to execute this Agreement. This Agreement shall become effective and binding upon both parties on the execution date. 18. EFFECT OF RECONCILIATION OR RECONCILIATION ATTEMPT. This Agreement shall remain in full force and effect even if the parties effect reconciliation, cohabit as Husband and Wife or attempt to effect reconciliation. This Agreement shall continue in full force and effect and there shall be no modification or waiver of any of the terms hereof unless the parties in writing execute a statement declaring this Agreement or a term of this Agreement to be null and void. 19. HEADINGS NOT PART OF AGREEMENT. Any headings preceding the text of the several paragraphs and subparagraphs hereof are inserted solely of convenience of reference and shall not constitute a part of this Agreement nor shall they affect its meaning, construction or effect. 20. AGREEMENT BINDING ON PARTIES AND HEIRS. This Agreement, except as otherwise expressly provided herein, shall bind the parties hereto and their respective heirs, executors, administrators, legal representatives, assigns, and successors in any interest of the parties. -21- AA 21. ENTIRE AGREEMENT. Each party acknowledges that he or she has carefully read this Agreement, including other documents to which it refers; that he or she has discussed its provisions with an attorney of his or her own choice, and has executed it voluntarily and in reliance upon his or her own attorney; and that this instrument expresses the entire agreement between the parties conceming the subjects it purports to cover and supersedes any and all prior agreements between the parties. This Agreement should be interpreted fairly and simply, and not strictly for or against either of the parties. 22. MUTUAL COOPERATION. Each party shall on demand execute and deliver to the other any deeds, bills of sale, assignments, consents to change of beneficiaries of insurance policies, tax returns, and other documents, and shall do or cause to be done every other act or thing that may be necessary or desirable to effectuate the provisions and purposes of this Agreement. If either party unreasonably fails on demand to comply with these provisions, that party shall pay to the other party all attorneys' fees, costs, and other expenses reasonably incurred as a result of such failure. 23. AGREEMENT NOT TO BE MERGED. This Agreement shall remain in full force and effect in the event of the parties' divorce. This Agreement shall not be merged into said decree. The parties shall have the right to enforce this Agreement under the Divorce Code of 1980, as amended, and in addition, shall retain any remedies in law or in equity under this Agreement as an independent contract. Such remedies in law or equity are not waived or released by this Agreement. -22- /, /?' IN WITNESS WHEREOF, the parties hereto set their hands and seals on the zt'?e'4 Linda Avitabile, Wife 4;,&, Alex Avitabil , Husband -23- COMMONWEALTH OF PENNSYLVANIA y, p I L, COUNTY OF ,I-?-f/? BEFORE ME, the undersigned authority, on this day personally appeared LINDA AVITABILE, known to me to be the person who executed the foregoing instrument, and who acknowledged to me that she executed same for the purposes and considerations therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE this. _ day of?lJC/ 2009. ary Public COMMONWEALTH OF PENNSYLVANIA Notarial Seal Jeanne M. Bemhart, Notary Public City of Harrisburg, Dauphin T= My Commission Expires June 1 -24- COMMONWEALTH OF PENNSYLVANIA COUNTY OF DAUPHIN BEFORE ME, the undersigned authority, on this day personally appeared ALEX AVITABILE, known to me to be the person who executed the foregoing instrument, and who acknowledged to me that he executed same for the purposes and considerations therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE this ??ay of 2009. ary Public COMMONWEALT14 OF PENNSYLVANIA Notari? Sed Jeanne M. Ba?nhart, ?, pu?? City of HarritlMrp, D?uphln County MY Commission ?pNes June 7, 2011 -25- 2 Fit ? ?? ALEX AVITABILE, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 03-925 LINDA AVITABILE, Defendant IN DIVORCE AFFIDAVIT OF CONSENT 1. A Complaint in Divorce under Section 3301(c) of the Divorce Code was filed on March 3, 2003. 2. The marriage of the Plaintiff and Defendant is irretrievably broken. Ninety days have elapsed since the date of service of the Complaint. 3. 1 consent to the entry of a final decree of divorce after service of notice of intention to request entry of the decree. I verify that the statements made in this affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. Linda Avitabile Date: 6V- / 4 , 2009 IL??I ?vti•?i V?.. p? C, ; ':lr' t l\3r1r?! Y 2009 DE-C 1 8 Pli 1: 20 4. G' _..1 t?.'iVf ALEX AVITABILE, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. LINDA AVITABILE, NO. 03-925 Defendant : IN DIVORCE WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIVORCE DECREE UNDER Section 3301(c) OF THE DIVORCE CODE 1. I consent to the entry of a final decree in divorce without notice. 2. 1 understand that I may lose rights concerning alimony, division of property, lawyer's fees or expenses if I do not claim them before a divorce is granted. 3. 1 understand that I will not be divorced until a divorce decree is entered by the Court and that a copy of the decree will be sent to me immediately after it is filed with the Prothonotary. I verify that the statements made in this affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. Linda Avitabile Date: ,2Z f ) 4 / , 2009 r ?: ???? ??? i ? ? ? : ?, t T":_ ALEX AVITABILE, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 03-925 LINDA AVITABILE, Defendant IN DIVORCE AFFIDAVIT OF CONSENT 1. A Complaint in Divorce under Section 3301(c) of the Divorce Code was filed on March 3, 2003. 2. The marriage of the Plaintiff and Defendant is irretrievably broken. Ninety days have elapsed since the date of service of the Complaint. 3. 1 consent to the entry of a final decree of divorce after service of notice of intention to request entry of the decree. I verify that the statements made in this affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. 4b Alex Avitabile' Date: b G, 14- , 2009 ,±145 FILE' THE 2009 DEC 18 Pr, 1: 2 CL<?ia 1 J;N ! 3 ALEX AVITABILE, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 03-925 LINDA AVITABILE, Defendant IN DIVORCE WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIVORCE DECREE UNDER Section 3301(c) OF THE DIVORCE CODE I consent to the entry of a final decree in divorce without notice. 2. 1 understand that I may lose rights concerning alimony, division of property, lawyer's fees or expenses if I do not claim them before a divorce is granted. 3. 1 understand that I will not be divorced until a divorce decree is entered by the Court and that a copy of the decree will be sent to me immediately after it is filed with the Prothonotary. I verify that the statements made in this affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. Alex Avitabile Date: b a 14 , 2009 FILEI'FFIOE 2004 DEC 18 PM 1: 2 i CUi:._ I.?iJ+lr A McNEES WALLACE & NURICK LLC BY: Debra Denison Cantor Attorney I.D. No. 66378 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 237-5297 (717) 237-5300 facsimile dcantor _mwn.com ALEX AVITABILE, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. LINDA AVITABILE, : NO. 03-925 Defendant : IN DIVORCE PRAECIPE TO TRANSMIT RECORD TO THE PROTHONOTARY: Transmit the record, together with the following information, to the court for entry of a divorce decree: 1. Grounds for divorce: irretrievable breakdown under §3301(c) or (d) of the Divorce Code. 2. Date and manner of service of the Complaint: via personal service upon Defendant with an Acceptance of Service form, served on April 3, 2003. An Affidavit of Service was filed on April 29, 2003. 40 3. Date of execution of the Affidavit of Consent required by § 3301(c) of the Divorce Code: by Plaintiff: December 14, 2009; by Defendant: December 14, 2009. Both Affidavits are have been filed previously with the Prothonotary. 4. Related claims pending: N/A 6. Date Plaintiffs Waiver of Notice was filed with the Prothonotary: December 18, 2009. Date Defendant's Waiver of Notice was filed with the Prothonotary: December 18, 2009. MCNEES WALLACE & NURICK LLC B ?/J Y De ra ntor I.D. No. 66378 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Plaintiff, Alex Avitabile Date: December 22, 2009 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing Praecipe to Transmit was served by first-class mail upon the following: Elizabeth Stone, Esquire STONE LAFAVER & SHEKLETSKI 414 Bridge Street P.O. Box E New Cumberland, PA 17070 J anne Barnhart, Legal Secretary Dated: December 22, 2009 T` r t 1-`?•.l rl'T?I iy 7'09 CE% 22 PM 2: 10 ALEX AVITABILE V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LINDA AVITABILE NO. 03-0925 DIVORCE DECREE AND NOW, 1>(?c-, Z Z , Z ao , it is ordered and decreed that ALEX AVITABILE , plaintiff, and LINDA AVITABILE , defendant, are divorced from the bonds of matrimony. Any existing spousal support order shall hereafter be deemed an order for alimony pendente lite if any economic claims remain pending. The court retains jurisdiction of any claims raised by the parties to this action for which a final order has not yet been entered. Those claims are as follows: (If no claims remain indicate "None.") None By the Court, 19,249,0,? 440460? ja 3c,