Loading...
HomeMy WebLinkAbout03-1100JAMES A. DISILVERIO, IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY, PA vs. CIVIL DIVISION -LAW IN DIVORCE CANDY L. DISILVERIO, Defendant :NO. 03 - 1166 n ves 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, including custody or visitation of your children. When the ground for divorce is indignitites or irretrievable breakdown of the marriage, you may request marriage counseling. A list of marriage counselors is available in the Office of the Prothonotary, Cumberland County Court House, Carlisle, Pennsylvania 17013. IF YOU DO NOT FILE A CLAIM FOR ALIMONY, DIVISION OF PROPERTY, LAWYERS 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, Pennsylvania 17013 Telephone: (717) 249-3166 I JAMES A. DISILVERIO, IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY, PA VS. : CIVIL DIVISION -LAW IN DIVORCE CANDY L. DISILVERIO, Defendant : NO. COMPLAINT COUNTI SECTION 3301(c) OF THE DIVORCE CODE OF 1980 1. Plaintiff is James A. DiSilverio, an adult individual who currently resides at 7 Birch Street, Mechanicsburg, Cumberland County, Pennsylvania 17050. 2. Defendant is Candy L. DiSilverio, an adult individual who currently resides at 7 Birch Street, Mechanicsburg, Cumberland County, Pennsylvania 17050. 3. Plaintiff and Defendant have been bona fide residents in the Commonwealth for at least six (6) months immediately previous to the filing of this Complaint. 4. Plaintiff and Defendant were married on November 20, 1976. 5. There have been no prior actions for divorce or annulment between the parties hereto. 6. Plaintiff avers that Defendant is not in any branch of the Armed Services. 7. This action is not collusive. 8. The marriage is irretreivably broken. 1 9. The Plaintiff has been advised of the availability of counseling and that the Plaintiff may have the right to request that the Court require the parties to participate in counseling. WHEREFORE, Plaintiff requests your Honorable Court to enter a Decree in Divorce, divorcing Plaintiff and Defendant from the bonds of matrimony. COUNT II SECTION 3301(d) OF THE DIVORCE CODE OF 1980 10. Paragraphs one through nine of this Complaint are incorporated herein by reference as though set forth in full. 11. The parties are now living separate and apart; at the appropriate time Plaintiff will submit an affidavit alleging that the parties have lived separate and apart for at least two (2) years and that the marriage is irretreivably broken. WHEREFORE, Plaintiff request your Honorable Court to enter a Decree in Divorce, divorcing Plaintiff and Defendant from the bonds of matrimony. Respectfully submitted: Date: rc i 12 2oc>2, BRATIC & PORTKO By:_ Stephen K. Portko, Esquire 101 South U. S. Route 15 Dillsburg, PA 17019 (717) 432-9706 I.D. No. 34538 Attorney for Plaintiff VERIFICATION I, James A. DiSilverio, hereby acknowledge that I am Plaintiff in the foregoing Divorce Complaint, that I have read the foregoing, and the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. 4'1 ss A. iSilverio Date: March 12, 2003 Q 0-- azt) C7 r: _ a t JAMES A. DISILVERIO, : IN THE COURT OF COMMON PLEAS Plaintiff : OF CUMBERLAND COUNTY, PA V. : CIVIL DIVISION - LAW : IN DIVORCE CANDY L. DISILVERIO, Defendant NO. 03-1100 Civil Term AFFIDAVIT OF CONSENT 1. A Complaint in Divorce under Section 3301(c) of the Divorce Code was filed on March 12, 2003. 2. The marriage of Plaintiff and Defendant is irretrievably broken and ninety (90) days have elapsed from the date of filing and 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 unswo 2Isification to thori/ti?es. Dated: /G 03 ? P I A. DISILVERIO 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 of divorce without notice. 2. 1 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. 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 unsw+ lsification p authorities. Dated: OZ I6,61? A. zu=". ;= Vr r, - 7 1 _ SJ JAMES A. DISILVERIO, : IN THE COURT OF COMMON PLEAS Plaintiff : OF CUMBERLAND COUNTY, PA V. : CIVIL DIVISION - LAW : IN DIVORCE CANDY L. DISILVERIO, Defendant : NO. 03-1100 Civil Tenn AFFIDAVIT OF CONSENT 1. A Complaint in Divorce under Section 3301(c) of the Divorce Code was filed on March 12, 2003. 2. The marriage of Plaintiff and Defendant is irretrievably broken and ninety (90) days have elapsed from the date of filing and 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 auth ities. Dated: d DY L. SIL WAIVER OF NOTICE OF INTENTION TO RE EST ENTRY OF A DIVORCE DECREE UNDER SECTION 3301(c) F THE DIVORCE CODE 1. I consent to the entry of a final decree of divorce without notice. 2. 1 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. 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 unsworr)^1sification to auth riti s. ,-- Dated:6 b O L. ,? c ,,? -? %? a ; r:2' rL t:, ? - JAMES A. DISILVERIO, Plaintiff V. CANDY'L. DISILVERIO, Defendant : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, PA : CIVIL DIVISION - LAW : IN DIVORCE NO. 03-1100 Civil Tenn ACCEPTANCE OF SERVICE I accept service of Plaintiffs Complaint in Divorce filed in the above matter. Dated: I& 03 7 6f k C 4 4p'h?4 - (Mailing Address) `r! U1 Ql 11? i ze xi JAMES A. DISILVERIO, Plaintiff V. CANDY L. DISILVERIO, Defendant : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, PA : CIVIL DIVISION - LAW : IN DIVORCE NO. 03-1100 Civil Term PRAECIPE TO TRANSMIT RECORD 1. Ground for divorce: irretrievable breakdown under Section 3301(c) of the Divorce Code. 2. Date and manner of service of the complaint: March 18, 2003 acceptance of service signed by Defendant; 3. Complete either (a) or (b). (a) Date of execution of the affidavit of consent required by Section 3301(c) of the Divorce Code: by the Plaintiff on June 16, 2003; by the Defendant on June 16, 2003; (b)(1) Date of execution of the Plaintiffs affidavit required by Section 3301(d) of the Divorce Code: n/a (b)(2) Date of service of the Plaintiffs affidavit upon the Defendant: n/a 4. Related claims pending: Neither party has raised any claims or other related issues. 5. Indicate date and manner of service of the notice of intention to file praecipe to transmit record, and attach a copy of said notice under section 3301(d)(1)(i) of the Divorce Code: n/a 6. Indicate date and manner of service of the notice of intention to file praecipe to transmit record, a copy of which is attached if decree is to be entered under section 3301(c) of the Divorce Code: n/a OR, date of execution of Waiver of Notice of Intent: Plaintiff executed waiver on June 16, 2003; Defendant executed waiver on June 16, 2003; AND date of filing Waiver: Plaintiffs waiver filed June 16, 2003. Defendant's waiver filed June 16, 2003. Attom y for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY STATE OF PENNA. JAMES A. DISILVERIO No. 03-1100 Civil Term VERSUS CANDY L. DISILVERIO AND NOW, DECREED THAT AND DECREE IN DIVORCE Sr-4e_ 7-4 ,7AID IT IS ORDERED AND JAMES A. DISILVERIO CANDY L. DISTLVERIO ARE DIVORCED FROM THE BONDS OF MATRIMONY. , PLAINTIFF, DEFENDANT, THE COURT RETAINS JURISDICTION OF THE FOLLOWING CLAIMS WHICH HAVE BEEN RAISED OF RECORD IN THIS ACTION FOR WHICH A FINAL ORDER HAS NOT YET BEEN ENTERED; None BY THE CO?. /.. ATT 0. J. W'o ;PROTHONOTARY . ? •? '+ MARK F. BAYLEY, ESQUIRE BAYLEY & MANGAN 57 WEST POMFRET STREET CARLISLE PA 17013 (717)241-2446 ATTORNEY ID NO. 87663 ATTORNEY FOR PETITIONER James A. DiSilverio, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW Candy L. DiSilverio, : No. 03 - 1100 CIVIL Defendant : IN DIVORCE PETITION TO VACATE DECREE IN DIVORCE GRANTED JUNE 24, 2003 AND NOW, comes Candy L. DiSilverio, by and through her plenary guardian, Monica Bohn, (formerly Monica DiSilverio), and attorney, Mark F. Bayley, Esquire, and in support of the within Petition avers as follows: 1. James and Candy DiSilverio were married on November 20, 1976. 2. Candy became incapacitated after complications relating to gull bladder surgery underwent in 1997; brain damage occurred after oxygen loss to her brain and she has since suffered from a condition known as Anoxic Encephalopathy and has extreme limitations with regard to memory and other cognitive functions. 3. Candy's incapacitated condition has remained unchanged to date. 4. After approximately twenty seven (27) years of marriage, Mr. DiSilverio filed a Divorce Complaint in March of 2003 (attached as Exhibit "A") and had Candy execute an Acceptance of Service on March 18, 2003 (attached as Exhibit "B"). 5. Mr. DiSilverio left Candy at the marital residence in June of 2003 and had Candy execute an Affidavit of Consent and Waiver of Notice on June 16, 2003 (attached as Exhibit "C") despite the fact that she had absolutely no capacity and understanding to have any comprehension of what she was signing. 6. At the time Candy signed the above documents, she had no legal representation or help of any other kind to prevent her husband from taking advantage of her incapacitated condition. 7. A decree in Divorce was entered on June 24, 2003. (Attached as Exhibit "D".) 8. Mr. DiSilverio addressed no equitable distribution, alimony, or support issues at the time Candy signed the above documents. 9. Since her husband left, Candy has been cared for in the marital residence solely by her daughter, Monica Bohn (formerly Monica DiSilverio). 10. Despite having had a well paying job as a postal worker for years, Mr. DiSilverio has provided little to no financial support or support of any other kind since leaving. 11. Mr. DiSilverio has charged Candy and her daughter approximately $900 per month since January of 2004 as rent to stay in the marital residence. 12. Mr. DiSilverio recently attempted to obtain Candy's signature on a deed transfer to sell the marital home out from under her. 13. On June 29, 2006, the Honorable Wesley J. Oler declared Candy as an incapacitated person and appointed Monica Bohn as her plenary guardian. (Order and Opinion are attached as Exhibit "E".) 14. Candy was denied her rights under the Divorce Code due to Respondent deceitfully obtaining her signatures and has subsequently been left in a horrendous financial position. 15. The Affidavit of Consent and Waiver of Notice signed by Candy in her incapacitated condition are invalid and, therefore, the resulting Decree in Divorce is invalid/void. WHEREFORE, Petitioner respectfully requests that the Decree in Divorce granted June 24, 2003 be vacated and that all of her rights under the Divorce Code be reinstated. Dated: Respectfully submitted, BAYLEY & MANGAN uuc? Mark F. Bayley, Esq 57 West Pomfret Street Carlisle, PA 17013 (717) 241-2446 Supreme Court I.D. # 87663 Attorney for Petitioner JAMES A. DLSILVERIO, IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY, PA VS. CIVIL, DIVISION -LAW IN DIVORCE CANDY L. DISILVERIO, Defendant : NO. 0 3 • //a d 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, including custody or visitation of your children. When the ground for divorce is indignitites or irretrievable breakdown of the marriage, you may request marriage counseling. A list of marriage counselors is available in the Office of the Prothonotary, Cumberland County Court House, Carlisle, Pennsylvania 17013. IF YOU DO NOT FILE A CLAIM FOR ALIMONY, DIVISION OF PROPERTY, LAWYERS 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, Pennsylvania 17013 Telephone: (717) 249-3166 pe e JAMES A. DISILVERIO, : IN THE COURT OF COMMON PLEAS Plaintiff OF CUMSERLAND COUNTY, PA VS. CIVIL DIVISION -LAW IN DIVORCE CANDY L. DISILVERIO, Defendant : NO. COMPLAINT COUNT I SECTION 3301(c) OF THE DIVORCE CODE OF 1980 1. Plaintiff is James A. DiSilverio, an adult individual who currently resides at 7 Birch Street, Mechanicsburg, Cumberland County, Pennsylvania 17050. 2. Defendant is Candy L. DiSilverio, an adult individual who currently resides at 7 Birch Street, Mechanicsburg, Cumberland County, Pennsylvania 17050. 3. Plaintiff and Defendant have been bona fide residents in the Commonwealth for at least six (6) months immediately previous to the filing of this Complaint. 4. Plaintiff and Defendant were married on November 20, 1976. 5. There have been no prior actions for divorce or annulment between the parties hereto. 6. Plaintiff avers that Defendant is not in any branch of the Armed Services. 7. This action is not collusive. 8. The marriage is irretreivably broken. 1 9. The Plaintiff has been advised of the availability of counseling and that the Plaintiff may have the right to request that the Court require the parties to participate in counseling. WHEREFORE, Plaintiff requests your Honorable Court to enter a Decree in Divorce, divorcing Plaintiff and Defendant from the bonds of matrimony. COUNT II SECTION 3301(d) OF THE DIVORCE CODE OF 1980 10. Paragraphs one through nine of this Complaint are incorporated herein by reference as though set forth in full. 11. The parties are now living separate and apart; at the appropriate time Plaintiff will submit an affidavit alleging that the parties have lived separate and apart for at least two (2) years and that the marriage is irretreivably broken. WHEREFORE, Plaintiff request your Honorable Court to enter a Decree in Divorce, divorcing Plaintiff and Defendant from the bonds of matrimony. Respectfully submitted: Date: ?i rC 1z BRATIC & PORTKO 1 By: Stephen K. Portko, Esquire 101 South U.S. Route 15 Dillsburg, PA 17019 (717) 432-9706 I.D. No. 34538 Attorney for Plaintiff VERIFICATION I. James A. DiSilverio, hereby acknowledge that I am Plaintiff in the foregoing Divorce Complaint, that I have read the foregoing, and the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. Date: Mach 12, 2003 J "`A. iSilverio r ACCEPTANCE OF SERVICE I adept service of Plaintiff's Complaint in Divorce filed in the above JAMES A. DISILVERIO, : IN THE COURT OF COMMON PLEAS Plaintiff : OF CUMBERLAND COUNTY, PA V. : CIVIL DIVISION - LAW : IN DIVORCE CANDY`L. DISILVERIO, Defendant : NO. 03-1100 Civil Term matter. Dated: ? & b 3 (Mailing Address) JAMES A. DISILVERIO, : IN THE COURT OF COMMON PLEAS Plaintiff : OF CUMBERLAND COUNTY, PA V. : CIVIL DIVISION - LAW : IN DIVORCE CANDY L. DISILVERIO, Defendant : NO. 03-1100 Civil Term AFFIDAVIT OF CONSENT 1. A Complaint in Divorce under Section 3301(c) of the Divorce Code was filed on March 12, 2003. 2. The marriage of Plaintiff and Defendant is irretrievably broken and ninety (90) days have elapsed from the date of filing and 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 fal ification to auth ities. Dated: _?26 .? CINDY L. S1L WAIVER OF NOTICE OF INTENTION TO RE EST ENTRY OF A DIVORCE DECREE UNDER SECTION 3301(c) F THE DIVORCE CODE 1. I consent to the entry of a final decree of divorce without notice. 2. 1 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. 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. verify that the statements made in this affidavit are true and correct. I understand that false statements herein are made subject to the enalties of 18 Pa. C.S. Section 4904 relating to unswo Isification to auth r' i s. Dated: ? Y L. Dl IL RIO, Defendant r r ?\ . k i OF CUMBERLAND COUNTY e"I STATE OF PEN NA. .114U- JAMES A. DISILVERIO IN THE COURT OF COMMON PLEAS No. 03-1100 CIVIL VERSUS CANDY L. DISILVERIO DECREE IN DIVORCE AND NOW, JUNE 241 ir JAMES A. DISILVERIO DECREED THAT 2003 , IT IS ORDERED AND , PLAINTIFF, CANDY L. DISILVERIO AND 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 WHICH A FINAL ORDER HAS NOT YET BEEN ENTERED; NONE BY THE COURT: J. Wesley Oler, Jr. ATTEST: J. Certified Copy Issued: "March 1, 04 PROTHONOTARY IN RE: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CANDY DISILVERIO, AN ORPHANS' COURT DIVISION ALLEGED INCAPACITATED NO. 21-06-0327 PERSON GUARDIANSHIP-INCAPACITATED PERSON IN RE: PETITION FOR APPOINTMENT OF GUARDIAN BEFORE OLER, J. OPINION AND ORDER OF COURT OLER, J., June 29, 2006. At issue in the present case is whether Candy ¦ ? DiSilverio should be adjudicated an incapacitated person on a permanent basis, and, if so, whether Ms. DiSilverio's daughter, Monica DiSilverio, of 7 Birch Street, Mechanicsburg, Cumberland County, Pennsylvania, 17050, should be appointed plenary guardian of her person and estate. A hearing was held on this matter on June 29, 2006. The allegedly incapacitated person was represented at the hearing by Galen R. Waltz, Esquire, court-appointed counsel. Ms. DiSilverio, the allegedly incapacitated person, was present at the hearing and testified. For the reasons stated in this opinion, the petition for appointment of a permanent guardian of the person and estate of Candy DiSilverio will be granted and her aforesaid daughter will be appointed plenary guardian of her person and estate. STATEMENT OF FACTS 1. The allegedly incapacitated person is Candy DiSilverio, a domiciliary of Cumberland County, Pennsylvania, born June 1, 1957, and residing with her daughter at 7 Birch Street, Mechanicsburg, Cumberland County, Pennsylvania. 2. Petitioner is Monica DiSilverio, an adult individual residing at 7 Birch Street, Mechanicsburg, Cumberland County, Pennsylvania; she is the daughter of Candy DiSilverio. 3. Candy DiSilverio, the allegedly incapacitated person suffers from a condition known as Anoxic Encephalopathy, dating from an operation that occurred in 1998. 4. Candy DiSilverio's condition is such that her ability to receive and evaluate information effectively and communicate decisions is impaired to such a significant extent that she is totally unable to manage her financial resources and totally unable to meet essential requirements for her physical health and safety. 5. Unfortunately, there is no indication at the present time that the allegedly incapacitated person's condition will significantly improve. 6. The income of the allegedly incapacitated person consists of Social Security-type payments, and partial ownership of the property in which she resides. 7. The allegedly incapacitated person is in need of a plenary guardian of her person and estate. 8. The duration of the necessary guardianships must be considered at best indefinite and for practical purposes permanent. 9. Monica DiSilverio, the daughter of Candy DiSilverio, is a person qualified to serve as guardian of her person and estate under 20 Pa. C.S. §5511(f). 10. The foregoing Findings of Fact are made on the basis of clear and convincing evidence. MT 01-TTO 0 TnWT The provisions respecting an adjudication of incapacity are contained in 20 Pa. C.S. §§5570 et.seq. The Petitioner has substantially complied with these provisions, and based upon the foregoing Findings'of Fact the following Order of Court will be entered: ORDER OF COURT AND NOW, this 29th day of June, 2006, upon consideration of the Petition for Appointment of Guardian with respect to Candy DiSilverio, following a hearing at which the allegedly incapacitated person was represented by her court-appointed counsel, Galen R. Waltz, Esquire, and for the reasons stated in the accompanying opinion, Candy DiSilverio is adjudicated an incapacitated person, and her daughter, Monica DiSilverio, is appointed permanent plenary guardian cf her estate and person. The guardian shall timely file with the Court all reports and accounts required by statute. No bond stall be required of the guardian. Candy DiSilverio and her counsel are hereby notified of her right to petition at any time for a modification or termination of the guardianship provisions contained in this order. By the Court, /s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., Mark F. Bayley, Esquire 60 West Pomfret Street Carlisle, PA 17013 For the Petitioner Galen R. Waltz, Esquire 28 South Pitt Street Carlisle, PA 17013 For Candy DiSilverio, an alleged incapacitated person Pcb James A. DiSilverio, Plaintiff V. Candy L. DiSilverio, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 03 - 1100 CIVIL IN DIVORCE VERIFICATION I verify that the statements made in this petition are true and correct. I understand that false statements herein are made subject to the penalties of18 Pa. Cons. Stat. § 4904 relating to unsworn falsification to authorities. onica Bohn, Plenary Guardian for Petitioner, Candy L. DiSilverio James A. DiSilverio, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW Candy L. DiSilverio, : No. 03 - 1100 CIVIL Defendant : IN DIVORCE CERTIFICATE OF SERVICE I, Mark F. Bayley, Esquire, attorney for the Petitioner do hereby certify that I this day mailed a copy of the within Motion upon the following by depositing same in the United States mail, postage prepaid, at Carlisle, Pennsylvania, addressed as follows: James A. DiSilverio 604 Harrisburg Pike Dillsburg, PA 17019 Gerald Robinson, Esquire 4407 N. Front Street P. O. Box 5320 l Harrisburg, PA 17110-5320 '? ??Ov Dated: Mark F. Bayley, Esquire Attorney for Petitioner r-a a ^t ...2 ? =r - - a DEC 0 8 2006 Y James A. DiSilverio, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW Candy L. DiSilverio, No. 03 - 1100 CIVIL Defendant IN DIVORCE RULE TO SHOW CAUSE And now, this A j day of De-r- , 2006, a Rule is hereby issued upon Respondent, James D. DiSilverio, to show cause why the relief requested in the attached Petition $hoTld not a granted: Said Rule is returnable in twenty (20) days. CC ally F. Bayley, Esquire mes A. DiSilverio "erg Ilo)AI 0r? A • ?)..?., au C.? ,t?%' t ' i . JAIME D. WASSMER, ESQUIRE Robinson & Geraldo Sup. Ct. I.D. No. 200705 4407 North Front Street P.O. Box 5320 Harrisburg, Pennsylvania 17110-5320 (717) 232-8525 - Phone (717) 232-5098 - Fax jwassmer@robinson-geraldo.com JAMES A. DISILVERIO, Plaintiff, V. CANDY L. DISILVERIO, Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.03-1100 CIVIL ACTION -CUSTODY ANSWER TO RULE TO SHOW CAUSE WHY THE PETITION TO VACATE DECREE IN DIVORCE SHOULD NOT BE GRANTED AND NOW comes James Disilverio, by and through his attorney, Jaime D. Wassmer, Esquire, represents as follows: 1. Paragraph I is admitted. 2. Paragraph 2 is admitted. 3. Paragraph 3 is neither admitted nor denied and therefore proof is demanded a trial. 4. Paragraph 4 is admitted. 5. Paragraph 5 is admitted in part and denied in part. It is admitted that Plaintiff vacated t the marital residence in or around June 2003 and that Defendant executed both the affidavit of Consent and Waiver of Notice; however it is denied as to whether Defendant lacked comprehension at to what she was signing and therefore proof is demanded at trial. By way of further explanation, Plaintiff did not abandon Defendant at the marital residence to care for herself. The parties' adult daughter, Ms. Monica Bohn, who is currently Defendant's plenary guardian, resided with Defendant when Plaintiff exited the marital residence and was present when Defendant executed the necessary paperwork to finalize the parties' divorce. At the time Defendant executed the Acceptance of Service, the Affidavit of Consent, and Waiver of Notice, Defendant had not been deemed incompetent by any Court of Law within the Commonwealth of Pennsylvania, thereby requiring Defendant to have the aid of a guardian to assist her through the divorce process. It also should be noted that since the parties' divorce in 2003, Plaintiff has since remarried. 6. Paragraph 6 is denied. Defendant did have assistance when the parties divorced. As stated in paragraph 5, the parties' adult daughter, Monica Bohn, who is the current plenary guardian of Defendant, was present through the divorce process and was even present at the time Defendant executed the Affidavit of Consent and Waiver of Notice. 7. Paragraph 7 is admitted. 8. Paragraph 8 is admitted in part and denied in part. It is admitted that Plaintiff did not address any equitable distribution, alimony, or support issues through the legal process; it is denied that Plaintiff did not address these issues at all. Plaintiff left the martial residence and its entire contents to Defendant as well as paid a substantial portion of marital debt. Plaintiff also continued to pay on the mortgage of the marital residence and requested that he receive financial assistance with the payments from the parties' adult daughter, Monica Bohn, who continued to residence at the marital residence. 9. Paragraph 9 is neither admitted nor denied and proof thereof is demanded at trial. 10. Paragraph 10 is denied. Plaintiff has provided financial support to Plaintiff in that he assumed all of the marital debt that existed at the time the parties separated, made monthly payments on the mortgage of the marital residence up until April 2006, assisted with repairs to the marital residence, replaced appliances in the marital residence, and left the entire contents of the marital residence in Defendant's possession. 11. Paragraph 11 is admitted. By way of further response, Defendant resided in the marital residence with her daughter, Monica Bohn, Ms. Bohn's two children, and Ms. Bohn's spouse. Plaintiff attempted to gain financial assistance from Ms. Bohn to pay the mortgage and asked that she and her spouse pay nine hundred dollars per month; however Ms. Bohn never made any payments while residing at the marital residence and has essentially been given a free ride since the parties' separation. 12. Paragraph 12 is admitted in part and denied in part. Plaintiff did attempt to put the martial residence up for sale; however it is denied that Plaintiff was going to "sell the marital home out from under her". Plaintiff has been involved in discussions with Ms. Bohn to sell the home since Ms. Bohn was not in a position financially to assume responsibility for the residence and Plaintiff could no longer afford to make monthly payments on both the marital residence as well as the home he resided in with his new wife. 13. Paragraph 13 is admitted. 14. Paragraph 14 is neither admitted nor denied. Proof thereof is demanded a trial. By way of further response, Plaintiffs counsel has been in contact with Defendant's counsel in attempting to resolve any outstanding issues regarding support and equitable distribution. A copy of said letter is attached hereto as "Exhibit 1". 15. Paragraph 15 is neither admitted nor denied. Proof thereof is demanded at trial. WHEREFORE, Plaintiff prays this Honorable Court to deny the Petition to Vacate Decree in Divorce and enter an Order allowing this Court to retain jurisdiction over any remaining equitable issues. Respectfully submitted, ROBINSON & GERALDO C Date: I NO By: - i ??-- J e D. Wassmer, Esquire At ey for Plaintiff VERIFICATION I verify that the statements made in this Answer to Petition to Vacate Divorce Decree 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 Ste. A. Disilverio CERTIFICATE OF SERVICE I, Jaime Wassmer, do hereby certify that on the 3rd day of O( , 2007, I caused a true and correct copy of the Answer to Petition for Special Relief to be served upon the following individual(s) by first class mail by depositing same in the United States, postage prepaid, in Harrisburg, Pennsylvania. Mark F Bayley, Esquire 57 West Pomfret Street Carlisle, PA 17013 Respectfully submitted, ROBINSON & GERALDO By: Jaim assmer, Esquire December 11, 2006 Mark Bayley, Esq. 57 West Pomfret Street Carlisle, PA 17103 Re: Disilverio v Disilervio Dear Mr. Bayley: This letter is a follow-up to the conversation between you and I this morning regarding the above-mentioned matter. As indicated in our conversation, my client is prepared to accept the current offer on the table to settle this matter. I have detailed below what I understand to be the current offer: • Mr. Disilverio agrees to pay $1,000 a month to Candy. This payment has the characterization of an alimony payment, which includes a tax deduction for my client and terminates of course upon the death of either party. • My client agrees to provide Candy with 35% of his pension. • Mr. Disilverio agrees to bring the mortgage current. In return, Monica agrees to attempt refinancing in order to be able to remove my client's name from the mortgage. In the interim until that happens, Monica agrees to hold my client harmless for any and all liability associated with the marital residences and should she miss one mortgage payment, the house will be put up for sale. Should the house be put up for sale, any profits stemming from the sale shall be split between Mr. and Mrs. Disilverio. My client also requests that his name be removed from the deed. I will send Mr. Disilverio the financial disclosure affidavit to execute and upon receipt, it will be forwarded to your attention. Harrisburg Cumberland County Washington, D.C. P. O. Box 5320 4407 North Front Street P.O. BOX 54 1316 Pennsylvania Ave., S.E. Harrisburg, PA 17110-5320 Harrisburg, PA 17110 Carlisle, PA 17013 Washington, D.C. 20003 www.robinson-geraido.com (717) 232-8525 (800) 571-2727 (202) 544-2889 (800) 571-2727 Fax (202) 547-8342 Fax (717) 232-5098 M. Bayley December 11, 2006 Page 2 Please also find enclosed the acceptance of service from the Petition to Vacate Divorce. Kindly discuss this matter with your client and if we are all on the same page, Mr. Disilerio is prepared to execute a document reflecting the agreed upon terms immediately. Do not hesitate to contact me with any questions. Thank you for your attention to this matter. I look forward to hearing from you. Sincerely, 0M. SON & ?ERALDO • ?? Jai?tie . Wassmer, Esq. Enclosure cc: J.Disilverio JDW:jdw C7 :n rn 3 JAMES A. DiSILVERIO, Plaintiff V. CANDY L. DiSILVERIO, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-1100 CIVIL TERM ORDER OF COURT AND NOW, this 22nd day of January, 2007, upon consideration of Defendant's Petition To Vacate Decree in Divorce Granted June 24, 2003, a hearing is scheduled for Tuesday, March 27, 2007, at 1:30 p.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. BRIEFS ARE due five days before the hearing on the issue of jurisdiction of the court to vacate a divorce decree at this point. Jaime D. Wassmer, Esq. 4407 North Front Street P.O. Box 5320 Harrisburg, PA 17110-5320 Attorney for Plaintiff Mark F. Bayley, Esq. 57 West Pomfret Street Carlisle, PA 17013 Attorney for Defendant :rc BY THE COURT, 91 ? : Z f,,f ot li Z INV LPOZ -a.40 well MARK F. BAYLEY, ESQUIRE BAYLEY & MANGAN 57 WEST POMFRET STREET CARLISLE PA 17013 (717) 241-2446 ATTORNEY ID NO. 87663 ATTORNEY FOR PETITIONER James A. DiSilverio, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION -LAW Candy L. DiSilverio, : No. 03 -1100 CIVIL Defendant : IN DIVORCE ADDENDUM TO PETITION TO VACATE DECREE nv DIVORCE GRANTED JUNE 24, 2003 FILED ON DEMEBER 7, 2006 AND NOW, comes Candy L. DiSilverio, by and through her plenary guardian, Monica Bohn, (formerly Monica DiSilverio), and attorney, Mark F. Bayley, Esquire, and includes the within Addendum to Petitioner's original Petition to Vacate Decree in Divorce Granted June 24, 2003: 1. Paragraphs 1 through 15 of Petitioner's original petition are hereby incorporated. 2. Mr. DiSilverio's actions constitute "extrinsic fraud" as set forth in §3332 of the Divorce Code. 3. Said "extrinsic fraud" prevented Petitioner from receiving a fair hearing with regard to her rights under the Divorce Code. a 4. The court has already set a hearing date on the within matter for March 27, 2007. 5. Petitioner assumes that respondent denies the legal conclusions set forth in the within Addendum and stipulates that no answer is necessary unless Respondent wishes to file one. WHEREFORE, Petitioner respectfully requests that the Decree in Divorce granted June 24, 2003 be vacated and that all of her rights under the Divorce Code be reinstated. Respectfully submitted, BAYLEY & MANGAN Dated: 13 -O? \?-.7AA Mark F. Bayley, quire 57 West Pomfret Street Carlisle, PA 17013 (717) 241-2446 Supreme Court I.D. # 87663 Attorney for Petitioner J? James A. DiSilverio, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION -LAW Candy L. DiSilverio, : No. 03 -1100 CIVIL Defendant : IN DIVORCE VERIFICATION MARK F. BAYLEY, ESQUIRE, states that he is the attorney for Candy L. DiSilverio, by and through her plenary guardian, Monica Bohn, (formerly Monica DiSilverio), Petitioner, in this action; that he makes this affidavit as attorney because he has sufficient knowledge or information and belief, based upon his investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa. C.S. Pa.C.S. §4904, relating to unworn falsification to authorities. Date: I o7 U?_4 Mark F. Bayley, E quire Attorney for Petitioner James A. DiSilverio, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION -LAW Candy L. DiSilverio, : No. 03 -1100 CIVIL Defendant : IN DIVORCE CERTIFICATE OF SERVICE I, Mark F. Bayley, Esquire, attorney for the Petitioner do hereby certify that I this day mailed a copy of the within Addendum upon the following by depositing same in the United States mail, postage prepaid, at Carlisle, Pennsylvania, addressed as follows: Jamie Wassner, Esquire 4407 N. Front Street P. O. Box 5320 Harrisburg, PA 17110-5320 _? I P1 Dated: Mark F. Bayley, Esquire Attorney for Petitioner r "? ? f ? ?_" _,, ,,,?, ..,- ? ` c.... ? ..?.,? t? . ? j-Tl r:,.. . , ?- -?] .? ? y JAIME D. WASSMER, ESQUIRE Robinson & Geraldo Sup. Ct. I.D. No. 200705 4407 North Front Street P.O. Box 5320 Harrisburg, Pennsylvania 17110-5320 (717) 232-8525 - Phone (717) 232-5098 - Fax jwassmer@robinson-geraldo.com JAMES A. DISILVERIO, Plaintiff, V. CANDY L. DISILVERIO, Defendant. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO.03-1100 CIVIL ACTION -CUSTODY MOTION TO STRIKE PURSUANT TO PA.R.C.P. 1028(a)(2) FOR FAILURE TO CONFORM TO PA.R.C.P.1026 and 1033. Plaintiff, James A. Disilverio, by his undersigned counsel, files this Motion to Strike, and in support thereof, avers as follows: 1. On December 7, 2007, Defendant filed a Petition to Vacate Decree in Divorce. A time-stamped copy of said Petition was served on undersigned counsel on or about December 65, 2006. A copy of said Petition is attached as "Exhibit 1". 2. On December 14, 2007, the Court issued a Rule to Show Cause on Plaintiff as to why the requested relief should not be granted. A copy of said Rule is attached as "Exhibit 2". 3. Plaintiff timely filed his answer to the Rule to Show Cause on January 8, 2007. A time-stamped copy of said answer is attached as "Exhibit 3". 4. On or about January 21, 2007, the parties' counsel and the Honorable Wesley J. Oler, Jr., participated in a conference call regarding whether the Court had jurisdiction to vacate the parties' 2003 divorce. 5. An Order dated January 22, 2007, directed the parties to submit briefs on the issue of jurisdiction of the court to vacate the decree at this point. A copy of said Order is attached as "Exhibit 4". 6. On March 15, 2007, Defendant's counsel telephoned undersigned counsel. Through the course of that discussion, Defendant's counsel mentioned an addendum had been filed to the Petition to Vacate on January 31, 2007. 7. Undersigned counsel did not receive a copy of the Addendum until March 15, 2007. 8. Defendant's counsel faxed a copy of the Addendum to undersigned counsel. The fax contained the notation from Defendant's counsel, "I must have forgotten to ship the addendum. A copy of the fax cover letter is attached as "Exhibit 5". 9. The Addendum to Petition to Vacate was filed on January 31, 2007. A copy of the filed Addendum is attached as "Exhibit 6". 10. Pennsylvania Rule of Civil Procedure 1028(a)(2) provides that an objection may be made by way of a motion to strike off a pleading because of lack of conformity to a rule of court. 11. Under Pa.R.C.P 1026(a), every pleading subsequent to the complaint shall be filed within twenty (20) days after service of the preceding pleading. 12. The Addendum was filed twenty-three days after the prior pleading and does not conform to twenty day limitation as outlined by Pa.R.C.P 1026(a). 13. Amendments to pleadings are ... granted .. unless there is an error of law or result[s in] prejudice to an adverse party. Commonwealth v. United States Mineral Prods. Co., 809 A.2d. 1000 14. For the Court to allow Defendant's Addendum to remain part of the record would result in prejudice to Plaintiff in the following: a. Plaintiff's brief addressing the issue of Court's jurisdiction to vacate the parties' decree was substantially finished when the addendum was received; b. Under Pa.R.C.P 1033 a party, either by consent of the adverse party or by leave of court, may ... amend his pleading. Defendant's counsel did not file a motion to request leave to file such addendum and consent was not given by undersigned counsel; c. There is no local or state rule that allows an Addendum to be filed in the manner in which Defendant's counsel filed said document; and d. Due to the lack of service on Plaintiff's counsel, the filing of the Addendum results in an ex parte communication to the Court and should be stricken from the record. 15. Defendant's counsel's error in excluding the required allegations from his Petition to Vacate a Decree should not be allowed to be rectified by the inclusion of the Addendum when it comes at the detriment of Plaintiff. Wherefore, Plaintiff respectfully requests that Defendant's Addendum to Petition to Vacate be Stricken. Respectfully submitted, ROBINSON & GERALDO Date: 31>11b, g , Jai . rasl mer, E squire )LA-) Atto ey fintiff ATTORNEY VERIFICATION Undersigned counsel, Jaime D. Wassmer, Esquire, hereby verifies and states that: 1. She is the attorney of record for James A. Disilverio, Plaintiff 2. She is authorized to make this verification on his behalf. 3. The facts set forth in the foregoing motion are known to her and not necessarily to her client. 4. The facts set forth in the foregoing motion are true and correct to the best of her knowledge, information and belief. 5. She is aware that false statements here in are made subject to the penalties of 18 Pa.C.S. 4904 relating to unsworn falsification to authorities. Jai - e . Wassmer, Esquire B ':: =*-North y I.D. No. 200705 Front Street P.O. Box 5320 Harrisburg, PA 17110 (717) 232-8525 Attorney for Plaintiff Date: March 20, 2007 CERTIFICATE OF SERVICE st- I, Jaime Wassmer, do hereby certify that on the day of March, 2007, I caused a true and correct copy of the Plaintiff s Motion to Strike to be served upon the following individual(s) by first class mail by depositing same in the United States, postage prepaid, in Harrisburg, Pennsylvania. Mark F Bayley, Esquire Bayley & Mangan 57 West Pomfret Street Carlisle, PA 17013 Respectfully submitted, ROBINSON & GERALDO V? J (yam By. Jaim assmer, Esquire MARK F. BAYLEY, ESQUIRE BAYLEY & MANGAN ^ = 3 57 WEST POMFRET STREET cs CARLISLE PA 17013 (717) 241-2446 ATTORNEY ID NO. 87663 ATTORNEY FOR PETITIONER James A. DiSilverio, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW Candy L. DiSilverio, : No. 03 - 1100 CIVIL Defendant : IN DIVORCE PETITION TO VACATE DECREE IN DIVORCE GRANTED JUNE 24.2003 AND NOW, comes Candy L. DiSilverio, by and through her plenary guardian, Monica Bohn, (formerly Monica DiSilverio), and attorney, Mark F. Bayley, Esquire, and in support of the within Petition avers as follows: 1. James and Candy DiSilverio were married on November 20, 1976. 2. Candy became incapacitated after complications relating to gull bladder surgery underwent in 1997; brain damage occurred after oxygen loss to her brain and she has since suffered from a condition known as Anoxic Encephalopathy and has extreme limitations with regard to memory and other cognitive functions. 3. Candy's incapacitated condition has remained unchanged to date. 4. After approximately twenty seven (27) years of marriage, Mr. DiSilverio filed a Divorce Complaint in March of 2003 (attached as Exhibit "A") and had Candy execute an Acceptance of Service on March 18, 2003 (attached as Exhibit "B"). 5. Mr. DiSilverio left Candy at the marital residence in June of 2003 and had Candy execute an Affidavit of Consent and Waiver of Notice on June 16, 2003 WOW (attached as Exhibit "C") despite the fact that she had absolutely no capacity and understanding to have any comprehension of what she was signing. 6. At the time Candy signed the above documents, she had no legal representation or help of any other kind to prevent her husband from taking advantage of her incapacitated condition. 7. A decree in Divorce was entered on June 24, 2003. (Attached as Exhibit "D".) 8. Mr. DiSilverio addressed no equitable distribution, alimony, or support issues at the time Candy signed the above documents. 9. Since her husband left, Candy has been cared for in the marital residence solely by her daughter, Monica Bohn (formerly Monica DiSilverio). 10. Despite having had a well paying job as a postal worker for years, Mr. DiSilverio has provided little to no financial support or support of any other kind since leaving. 11. Mr. DiSilverio has charged Candy and her daughter approximately $900 per month since January of 2004 as rent to stay in the marital residence. 12. Mr. DiSilverio recently attempted to obtain Candy's signature on a deed transfer to sell the marital home out from under her. 13. On June 29, 2006, the Honorable Wesley J. Oler declared Candy as an incapacitated person and appointed Monica Bohn as her plenary guardian. (Order and Opinion are attached as Exhibit "E".) 14. Candy was denied her rights under the Divorce Code due to Respondent deceitfully obtaining her signatures and has subsequently been left in a horrendous financial position. 15. The Affidavit of Consent and Waiver of Notice signed by Candy in her incapacitated condition are invalid and, therefore, the resulting Decree in Divorce is invalid/void. WHEREFORE, Petitioner respectfully requests that the Decree in Divorce granted June 24, 2003 be vacated and that all of her rights under the Divorce Code be reinstated. Dated: I -Z ? C(""? Respectfully submitted, BAYLEY & MANGAN 1 Mark F. Bayley, Esq 57 West Pomfret Street Carlisle, PA 17013 (717) 241-2446 Supreme Court I.D. # 87663 Attorney for Petitioner James A. DiSilverio, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW Candy L. DiSilverio, No. 03 - 1100 CIVIL Defendant IN DIVORCE VERIFICATION I verify that the statements made in this petition are true and correct. I understand that false statements herein are made subject to the penalties of18 Pa. Cons. Stat. § 4904 relating to unsworn falsification to authorities. f ,,.1 , X-f -), 4"? ,t - onica Bohn, Plenary Guardian for ?' Cr7 Petitioner, Candy L. DiSilverio James A. DiSilverio, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW Candy L. DiSilverio, : No. 03 - 1100 CIVIL Defendant : IN DIVORCE CERTIFICATE OF SERVICE I, Mark F. Bayley, Esquire, attorney for the Petitioner do hereby certify that I this day mailed a copy of the within Motion upon the following by depositing same in the United States mail, postage prepaid, at Carlisle, Pennsylvania, addressed as follows: James A. DiSilverio 604 Harrisburg Pike Dillsburg, PA 17019 Gerald Robinson, Esquire 4407 N. Front Street (<?our- P-sy P. O. Box 5320 0 l Harrisburg, PA 17110-5320 Daretl 1Z-&-O? Mark F. Bayley, Esquire Attorney for Petitioner ?f 1 James A. DiSiiverio, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW Candy L. DiSiiverio, : No. 03 - 1100 CIVIL Defendant : IN DIVORCE RULE TO SHOW CAUSE And now, this day of 1W. . , 2006, a Rule is hereby issued upon Respondent, James D. DiSilverio, to show cause why the relief requested in the attached Petition should not be granted. Said Rule is returnable in twenty {20) days. ROM 6e . A.0?e of s e rv % W . )S CC. Mark F. Bayley, Esquire James A. DiSilverio JAIME D. WASSMER, ESQUIRE Robinson & Geraldo Sup. Ct. I.D. No. 200705 4407 North Front Street P.O. Box 5320 Harrisburg, Pennsylvania 17110-5320 (717) 232-8525 - Phone (717) 232-5098 - Fax jwassmer@robinson-geraldo.com JAMES A. DISiLVERIO, Plaintiff, V, CANDY L. DISILVERIO, Defendant. CZ - ?- ,? -n n 2 yC a? : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-1100 CIVIL ACTION -CUSTODY ANSWER TO RULE TO SHOW CAUSE WHY THE PETITION TO VACATE DECREE IN DIVORCE SHOULD NOT BE GRANTED AND NOW comes James Disilverio, by and through his attorney; Jaime D. Wassme , Esquire, _represents as follows: Paragraph 1 is admitted. 2. Paragraph 2 is admitted. 3. Paragraph 3 is neither admitted nor denied and'therefore proof is demanded a trial. 4. Paragraph 4 is admitted. 5. Paragraph 5 is admitted in part and denied in part. It is admitted that Plaintiff vacated the marital residence in or around June 2003 and that Defendant executed both the affidavit of Consent and Waiver of Notice; however it is denied as to whether Defendant lacked comprehension at to what she was signing and therefore proof is demanded at trial. By way of further explanation, Plaintiff did not abandon Defendant at the marital residence to care for herself. The parties' adult daughter, Ms. Monica Bohn, who is currently Defendant's plenary guardian, resided with Defendant when Plaintiff exited the marital residence and was present when Defendant executed the necessary paperwork to finalize the parties' divorce. At the time Defendant executed the Acceptance of Service, the Affidavit of Consent, and Waiver of Notice, Defendant had not been deemed incompetent by any Court of Law within the Commonwealth of Pennsylvania, thereby requiring Defendant to have the aid of a guardian to assist her through the divorce process. It also should be noted that since the parties' divorce in 2003, Plaintiff has since remarried. 6. Paragraph 6 is denied. Defendant did have assistance when the parties divorced. As stated in paragraph 5, the parties' adult daughter, Monica Bohn, who is the current plenary guardian of Defendant, was present through the divorce process and was even present at the time Defendant executed the Affidavit of Consent and Waiver of Notice. 7. Paragraph 7 is admitted. 8. Paragraph 8 is admitted in part and denied in part. It is admitted that Plaintiff did not address any equitable distribution, alimony, or support issues through the legal process; it is denied that Plaintiff did not address these issues at all. Plaintiff left the martial residence and its entire contents to Defendant as well as paid a substantial portion of marital debt. Plaintiff also continued to pay on the mortgage of the marital residence and requested that he receive financial assistance with the payments from the parties' adult daughter, Monica Bohn, who continued to residence at the marital residence. 9. Paragraph 9 is neither admitted nor denied and proof thereof is demanded at trial. 10. Paragraph 10 is denied. Plaintiff has provided financial support to Defendant in that he assumed all of the marital debt that existed at the time the parties separated, made monthly payments on the mortgage of the marital residence up until April 2006, assisted with repairs to the marital residence, replaced appliances in the marital residence, and left the entire contents of the marital residence in Defendant's possession. 11. Paragraph 11 is admitted. By way of further response, Defendant resided in the marital residence with her daughter, Monica Bohn, Ms. Bohn's two children, and Ms. Bohn's spouse. Plaintiff attempted to gain financial assistance from Ms. Bohn to pay the mortgage and asked that she and her spouse pay nine hundred dollars per month; however Ms. Bohn never made any payments while residing at the marital residence and has essentially been given a free ride since the parties' separation. 12. Paragraph 12 is admitted in part and denied in part. Plaintiff did attempt to put the martial residence up for sale; however it is denied that Plaintiff was going to "sell the marital home out from under her". Plaintiff has been involved in discussions with Ms. Bohn to sell the home since Ms. Bohn was not in a position financially to assume responsibility for the residence and Plaintiff could no longer afford to make monthly payments on both the marital residence as well as the home he resided in with his new wife. 13. Paragraph 13 is admitted. 14. Paragraph 14 is neither admitted nor denied. Proof thereof is demanded a trial. By way of further response, Plaintiff s counsel has been in contact with Defendant's counsel in attempting to resolve any outstanding issues regarding support and equitable distribution. A copy of said letter is attached hereto as "Exhibit I". 15. Paragraph 15 is neither admitted nor denied. Proof thereof is demanded at trial. WHEREFORE, Plaintiff prays this Honorable Court to deny the Petition to Vacate Decree in Divorce and enter an Order allowing this Court to retain jurisdiction over any remaining equitable issues. Respectfully submitted, ROBINSON & GERALDO Date: ° B ?- 0? - ?---- Ja' e . Wassmer, Esquire At o ey for Plaintiff CERTIFICATE OF SERVICE I, Jaime Wassmer, do hereby certify that on the j day of JoLvwo!L-j , 2007, I caused a true and correct copy of the Answer to Petition for Special Relief to be served upon the following individual(s) by first class mail by depositing same in the United States, postage prepaid, in Harrisburg, Pennsylvania. Mark F Bayley, Esquire 57 West Pomfret Street Carlisle, PA 17013 Respectfully submitted, ROBINSON & GERALDO By. (Z-_ W G--? Jai a assmer, Esquire JAMES A. DiSILVERIO, Plaintiff V. : CANDY L. DiSILVERIO, : Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-1100 CIVIL TERM ORDER OF COURT AND NOW, this 22°d day of January, 2007, upon consideration of Defendant's Petition To Vacate Decree in Divorce Granted June 24, 2003, a hearing is scheduled for Tuesday, March 27, 2007, at 1:30 p.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. BRIEFS ARE due five days before the hearing on the issue of jurisdiction of the court to vacate a divorce decree at this point. l Jaime D. Wassmer, Esq. 4407 North Front Street P?. Box 5320 Harrisburg, PA 17110-5320 Attorney for Plaintiff Mark F. Bayley, Esq. 57 West Pomfret Street Carlisle, PA 17013 Attorney for Defendant :rc h%)E COPY: FROM Testimony Www. I we unb w my hay::: the seal of said a Qdft, Pa. lit Amu :.. BY THE COURT, MAR-15-2007(THU) 16:46 Bayley & Mangan ATTORNEYS AT LAW 57 Wen Pomfret Street Carlisk, Pa 17013 Marts F. Bayley, Esquire John J. Mangan, a Enquire Jacqueline EM Legal Assistant To: Company: Phone: Fax: From: Phone: Fax: Date: Pages including this cover page: Re: Talaphone: (717) 241.2446 Fax: (717)241-2456 FAGSI??LE COVER SHEET Mark F. Bayley, Esquire 717-241-2446 717-241-2456 P. 001 /005 tAJ S? C1%. C-, Comments: ,,F3 Vr- C) 4c L/1 -?-( ) ? (j, %J . -, MC4"" NOTS, If you did not receive nil of the Pages or ifyou have any problem with the clarity of this fnx, piease call us at the nwnber listed on this lcacnccad. THANK YOU! • This fax contalne eenMientiO 107rundon, which may also be kptlly prb ted. It Is Intended only ter the nee of the addrown named above. If yon ace not the handed reelpient; or the employee or agent rc*owlbk for delivering It to the Inteaded recipient, you an hereby notified that== dtseentlnatloa or copying of this fizz or the taidag of uty action on the rdbace on the contents of this tekee<pitd iarormadon mat be aMctO prohibited. Uyon nedvo this ax In error, please nod& no immedtateiy by adephene and rdmm the entboe hx to the above address r4 tba VS Postal service. THAN9 YOUI MRR-15-2007(THU) 16:46 MARK F. BAYLEY, ESQU= BAYLEY & MANGAN 57 WEST PO1vII+RET STREET CARLISLE PA 17®13 Cn7) 24x.2" ATTORNEY W NO. 8760 ATTORNEY FOR PETITIONER James A. DiSilverio, Plaintiff V. Candy L. DiSilverio, Defendant P. 0021005 `7 J ?._. IN THE COURT OF COMMON PLEAS 0 CUMBERLAND COUNTY, PENNSAVAVIA : CNTL ACTION -LAW : No. 03 -1100 CIVIL : IN DIVORCE VACATE AND NOW, comes Candy L. DiSilverio, by and through her plenary guardian, Monica Bohn, (formerly Monica DiSilverio), and attorney, Mark F. Bayley, Esquire, and includes the within Addendwn to Petitioner's original Petition to Vacate Decree in Divorce Granted June 24, 2003: 1. Paragraphs 1 through 15 of Petitioner's original petition are hereby incorporated. 2. Mr. DiSilverio's actions constitute "extrinsic fraud" as set forth in §3332 of the Divorce Code. 3. Said "extrinsic fraud" prevented Petitioner from receiving a fair hearing with regard to her rights under the Divorce Code. 4. Ile court has already set a hearing date on the within matter for !March 27, 2007. tr MM-15-2007 (THU) 16:46 5. Petitioner assumes that respondent denies the legal conclusions set forth in the within Addendum and stipulates that no answer is necessary unless Respondent wishes to file one. WBEREFOM Petitioner respectfully requests that the Decree in Divorce granted June 24, 2003 be vacated and that all of her rights under the Divorce Code be reinstated. Respectfully submitted, BAYLEY & MANGAN Dated: 1 3 -oI Mark F. Bayley, quire 57 west Pomfret Street Carlisle, PA 17013 (717) 241-2446 Supreme Court Y.D. # 87663 Attorney for Petitioner P. 003/005 MRR-15-2007(THU) 16:46 P.004/005 James A. DiSilverio, : IN TB E COURT OF COMMON PLEAS OF Plaintiff : CUMSERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION -LAW Candy L. DiSilverio, . : No. 03 -1.100 CIVIL Defendant : IN DIVORCE VEp'MCAT ION MARIA F. BAYLEY, ESQUIRE, states that he is the attorney for Candy L. DiSilverio, by and through her plenary guardian,, Monica Bohn, (formerly Monica. DiSilvedo), Petitioner, in this action; that he makes this affidavit as attorney because he has sufficient knowledge or information and belies; based upon his investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa. C.S. Pa_C.S. §4904, relating to unworn falsification to authorities. Date: j Mark F. Bayley, E uire Attorney for Petitioner MHO-15-2007(THU) 16:46 P. 005/005 James A. DiSilverio, ' : IN TIC COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION -LAW Candy L. DiSilverio, : No. 03.1100 CIVIL Defendant : IN DIVORCE CERTIFICATE OF SERVICE L Mark F. Bayley, Esquire, attorney for the Petitioner do hereby certify that J this day mailed a copy of the within Addendum upon the following by depositing some in the United States mail, postage prepaid, at Carlisle, Pennsylvania, addressed as follows: Jamie Wassner, Esquire 4407 N. Front Street P. O. Box 5320 Harrisburg, PA 17110-5320 _?_ _? I _?'. -7 -? D Dated: Mark F. Bayley, Esquire Attorney for Petitioner y , f VC ?' qry JAMES A. DiSILVERIO, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW CANDY L. DiSILVERIO, : Defendant NO. 03-1100 CIVIL TERM ORDER OF COURT AND NOW, this 27th day of March, 2007, upon consideration of Plaintiff's Motion To Strike Pursuant To Pa. R.C.P. 1028(a)(2) for Failure To Conform to Pa. RC.P. 1026 and 1033, a Rule is hereby issued upon Defendant, to show cause why the relief requested should not be granted. RULE RETURNABLE at the hearing previously scheduled in this case for Tuesday, March 27, 2007, at 1:30 p.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. Jaime D. Wassmer, Esq. 4407 North Front Street P.O. Box 5320 Harrisburg, PA 17110-5320 Attorney for Plaintiff Mark F. Bayley, Esq. 57 West Pomfret Street Carlisle, PA 17013 Attorney for Defendant : rc Ageyw 3/6 ?/ BY THE COURT, e 0 :C !-'d L. O LODZ ! - -,! E i ..i kvic ", ?, . f,.oC1:2..JHi AO JAMES A. DiSILVERIO, Plaintiff V. CANDY L. DiSILVERIO, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-1100 CIVIL TERM IN RE: DEFENDANT'S PETITION TO VACATE DECREE IN DIVORCE GRANTED JUNE 24, 2003 BEFORE OLER, J. ORDER OF COURT AND NOW, this 28 1h day of March, 2007, upon consideration of Defendant's Petition To Vacate Decree in Divorce Granted June 24, 2003, and following a hearing held on March 27, 2007, the petition is denied. J me D. Wassmer, Esq. 4407 North Front Street P.O. Box 5320 Harrisburg, PA 17110-5320 Atto ey for Plaintiff ark F. Bayley, Esq. 57 West Pomfret Street Carlisle, PA 17013 Attorney for Defendant :rc BY THE COURT, l.4 J. j esley Oler, ., 00 :E' Hd 8Z M LOOZ JAMES A. DISILVERIO, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v CIVIL ACTION - LAW CANDY L. DISILVERIO, Defendant 03-1100 CIVIL TERM IN RE: PETITION TO VACATE DECREE ORDER OF COURT AND NOW, this 27th day of March, 2007, upon consideration of Defendant's Petition To Vacate Decree in Divorce Granted June 24, 2003, and following a hearing held on this date, the record is declared closed, and the matter is taken under advisement. By the Court, /aime D. Wassmer, Esquire 4407 N. Front Street P.O. Box 5320 Harrisburg, PA 17110 For Plaintiff J /-ark F. Bayley, Esquire 57 W. Pomfret Street Carlisle, PA 17013 For Defendant :mae ti.sa °r .?. -?; ,; i . ?,t l.. ,? {? ?. t ., ???? l.+' C"+S JAMES A. DISILVERIO, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v CIVIL ACTION - LAW CANDY L. DISILVERIO, Defendant 03-1100 CIVIL TERM IN RE: MOTION TO STRIKE ORDER OF COURT AND NOW, this 27th day of March, 2007, upon review of Plaintiff's Motion To Strike, and pursuant to an agreement of counsel, it is hereby ordered and decreed that the Defendant's Addendum to Petition To Vacate is stricken from the record. By the Court, Xaime D. Wassmer, Esquire 4407 N. Front Street P.O. Box 5320 Harrisburg, PA 17110 For Plaintiff Xrk F. Bayley, Esquire 57 W. Pomfret Street Carlisle, PA 17013 For Defendant :mae cl; r'? t:1 1 Cl- -;:r © C .? ..i James A. DiSilverio, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. Civil Action -Law No. 03 - 1100 Civil Term Candy L. DiSilverio, Defendant NOTICE OF APPEAL NOTICE IS HEREBY given that Candy L. DiSilverio, Defendant above named, hereby appeals to the Superior Court of Pennsylvania from the judgment denying her Petition to Vacate Decree in Divorce granted June 24, 2003 entered on March 28, 2007, in the above-captioned matter. This judgment has been entered in the docket as evidenced by the attached copy of the docket entries. Date: Respectfully submitted, BAYLEY & MANGAN Mark F. Bayley, ire 57 W. Pomfret Street Carlisle, PA 17013 (717) 241-2446 Supreme Court I.D. # 87663 Attorney for Appellant James A. DiSilverio, : IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. Civil Action -Law No. 03 - 1100 Civil Term Candy L. DiSilverio, Defendant CERTIFICATE OF SERVICE I, Mark F. Bayley, Esquire, attorney for Defendant, do hereby certify that a true and correct copy of the within NOTICE OF APPEAL was served upon the following individuals on the below date, by placing same in the United States Mail, first-class postage prepaid, addressed as follows: The Honorable J. Wesley Oler, Jr Cumberland Co. Courthouse One Courthouse Square Carlisle, PA 17013 Prothonotary Office Cumberland Co. Courthouse One Courthouse Square Carlisle, PA 17013 Date: v Official Court Reporter Cumberland Co. Courthouse One Courthouse Square Carlisle, PA 17013 Jaime D. Wassmer, Esquire 4407 N. Front St. P. O. Box 5320 Harrisburg, PA 17110-5320 BY: V?//g Mark F. Bayle squire r James A. DiSilverio, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. Civil Action - Law No. 03 - 1100 Civil Term Candy L. DiSilverio, Defendant REQUEST FOR TRANSCRIPT A Notice of an Appeal having been filed in this matter, the Official Court Reporter is hereby Ordered to produce, certify, and file the transcript in this matter relating to the hearing held on March 27, 2007 conforming with Rule 1922 of the Pennsylvania Rules of Appellate Procedure. Respectfully submitted, BAYLEY & MANGAN `S ?C? Date: LAAf?'? Mark F. Bayley, Esq ' e 57 W. Pomfret Street Carlisle, PA 17013 (717) 241-2446 Supreme Court I.D. # 87663 Attorney for Appellant PYS511 Cumberland County Prothonotary's Office Page 1 Civil Case Print ,200-3-01300 DISILVERIO JAMES A (vs) DISILVERIO CANDY L Reference No... Filed......... 3/12/2003 Case Type ..... : COMPLAINT - DIVORCE d Time...... . 3:51 Ju gment..... 00 Execution Date 0/00/0000 Judge Assigned: OLER J WESLEY JR Jury Trial.... Disposed Desc.: GRANTED ------------ C C t Disposed Date. 6/24/2003 ase ommen s ------------- Higher Crt 1.: Higher Crt 2.: ******************************************************************************** General Index Attorney Info DISILVERIO JAMES A PLAINTIFF PORTKO STEPHEN K 7-BIRCH STREET MECHANICSBURG PA 17050 DISILVERIO CANDY L DEFENDANT 7 BIRCH STREET MECHANICSBURG PA 17050 ******************************************************************************** * Date Entries ?eic****?c?c?r****?Y?F******?r**?r?t?t?c*ic******ic***?t?tt?tic**?tir*?t*itic?t*ic**?t?c?F**?t*?t**kk****k**F* - - - FIRST ENTRY - - - - - - - - - - - - - - 3/12/2003 COMPLAINT - DIVORCE --------------------------------- ---------------------------------- 6/16/2003 AFFIDAVIT OF CONSENT - PLAINTIFF ------------------------------------------------------------------- 6/16/2003 WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIV DECREE-PLFF ------------------------------------------------------------------- 6/16/2003 AFFIDAVIT OF CONSENT - DEFENDANT ------------------------------------------------------------------= 6/16/2003 WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIV DECREE-DEFT ------------------------------------------------------------------- 6/16/2003 ACCEPTANCE OF SERVICE FOR COMPLAINT IN DIVORCE - CANDY L DISILVERIO ------------------------------------------------------------------- 6/17/2003 PRAECIPE TO TRANSMIT RECORD ------------7------------------------------------------------------ 6/24/2003 DIVORCE DECREE ENTERED BY J WESLEY OLER JR J NOTICE MAILED ------------------------------------------------------------------- 12/07/2006 PETITION TO VACATE DECREE IN DIVORCE GRANTED 06-24-03 - BY MARK F BAYLEY ATTY FOR DEFT ------------------------------------------------------------------- 12/15/2006 RULE TO SHOW CAUSE - 12-14-06 - IN RE: RULE ISSUED UPON RESPONDENT TO SHOW CAUSE WHY THE RELIEF REQUESTED IN THE ATTACHED PETITION SHOULD NOT BE GRANTED - RULE RETURNABLE IN 20 DAYS FROM THE DATE OF SVC - BY J WESLEY OLER JR J - COPIES MAILED 12-15-06 ------------------------------------------------------------------- 1/08/2007 ANSWER TO RULE TO SHOW CAUSE WHY THE PETITION TO VACATE DECREE IN DIVORCE SHOULD NOT BE GRANTED - BY JAIME D WASSMER ATTY FOR PLFF ------------------------------------------------------------------- 1/24/2007 ORDER OF COURT - 01-22-07 - IN RE: HEARING 03-27-07 AT 1:30 PM IN CR 1 CUMB CO COURTHOUSE - BRIEFS DUE 5 DAYS BEFORE HEARING ON THE ISSUE OF JURISDICTION OF THE COURT TO VAACATE A DIVORCE DECREE AT THIS POINT - BY J WESLEY OLER JR J - COPIES MAILED 01-24-07 ------------------------------------------------------------------- 1/31/2007 ADDENDUM TO PETITION TO VACATE DECREE IN DIV GRANTED 06-24-03 FILED ON 12-07-06 - BY MARK F BAYLEY ATTY FOR PETITIONER ------------------------------------------------------------------- 3/22/2007 MOTION TO STRIKE PURSUANT TO PA RCP 1028 A 2 FOR FAILURE TO CONFORM TO PA RCP 1026 & 1033 - BY JAIME D WASSMER ATTY FOR PLFF ------------------------------------------------------------------- 3/27/2007 ORDER OF COURT - 03-27-07 - IN RE: RULE ISSUED UPON DEFT TO SHOW CAUSE WHY THE RELIEF REQUESTED SHOULD NOT BE GRANTED - RULE RETURNABLE AT THE HEARING 03-27-07 AT 1:30 PM IN CR 1 CUMB CO COURTHOUSE - BY J WESLEY OLER JR J - COPIES MAILED 03-27-07 ------------------------------------------------------------------- 3/28/2007 ORDER OF COURT - DATED 03-28-07 - IN RE DEFENDANTS PEITITON TO VACATE DECREE IN DIVORCE GRANTED JUNE 24, 2003 BEFORE OLER J. - DEFTS PETITION TO VACATE DECREE IN DIVORCE GRANTED 06-24-03 AND FOLLOWING A HEARING HELD ON MARCH 27, 2007 THE PETITION IS DENIED - BY THE COURT J WESLEY OLER J PYS511 Cumberland County Prothonotary's Office Page Civil Case Print ,2003-01100 DISILVERIO JAMES A (vs) DISILVERIO CANDY L Reference No... Filed......... 3/12/2003 Case Tyyppe...... COMPLAINT - DIVORCE Time..... ..: 3.51 Judgmenb..... 00 Execution Date 0/00/0000 Judge Assigned: OLER J WESLEY JR Jury Trial.... Disposed Desc.: GRANTED Disposed Date. 6/24/2003 ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: ------------------------------------------------------------------- 4/02/2007 ORDER OF COURT - 03-27-07 - IN RE: PETITION TO VACATE DECREE - RECORD DECLARED CLOSED-MATTER TAKEN UNDER ADVISEMENT - BY J WESLEY OLER JR J - COPIES MAILED 04-02-07 ------------------------------------------------------------------- 4/02/2007 ORDER OF COURT - 03-27-07 - IN RE: MOTION TO STRIKE - STRIKEN FROM THE RECORD - BY J WESLEY OLER JR J - COPIES MAILED 04-02-07 - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - 2 ******************************************************************************** * Escrow Information * Fees & Debits Be *Bal***Pymts/Adi End Bal ******************************** **** ****** ******************************* DIVORCE 35.00 35.00 .00 TAX ON CMPLT .50 .50 .00 SETTLEMENT 5.00 5.00 .00 MASTER'S FEE 125.00 125.00 .00 DIV PA SURCHG 10.00 10.00 .00 AUTOMATION FEE 5.00 5.00 .00 JCP FEE 10.00 --------- - 10.00 .00 - --- 190.50 ---------- --- 190.50 --------- .00 ******************************************************************************** * End of Case Information ******************************************************************************** TRUE COPY FROM RECORD In Testimony Whereof, I here unto set my hand and the seal of Court at Carlisle, Pa. This .,..?......... ... day of.. rZs.L ..., .7 . Pn onotary ? "?: ? e ? ? ?, ? c ? ? ? ? ?-?' -. -,? "" t? r " ? -,., -r? - ---r ?' f ??> ?T -;?? =? ?? JAMES A. DISILVERIO, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW CANDY L. DISILVERIO, : Defendant NO. 03-1100 CIVIL TERM ORDER OF COURT AND NOW, this 10th day of April, 2007, upon consideration of the Notice of Appeal filed in the above-captioned matter, Appellant is DIRECTED, pursuant to Pa. R.A.P. 1925(b), to file of record in this Court and to serve upon the undersigned judge a concise Statement of Matters Complained of on Appeal no later than 14 days after entry of this Order. BY THE COURT, J. ff;esley Oler, Ir., J. aime D. Wassmer, Esq. 4407 N. Front Street P.O. Box 5320 Harrisburg, PA 17110-5320 Attorney for Plaintiff Mark F. Bayley, Esq. 57 W. Pomfret Street Carlisle, PA 17013 Attorney for Defendant J "r d. L -110 COMMONWEALTH OF PENNSYLVANIA Karen Reid Bramblett, Esq. Prothonotary James D. McCullough, Esq. Deputy Prothonotary . Superior Court of Pennsylvania Middle District April 13, 2007 100 Pine Street. Suite 400 Harrisbure. PA 17101 717-772-1294 www.superior.court.state.pa.us Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Re: 628 MDA 2007 James A. DiSilverio V. Candy L. DiSilverio, Appellant Dear Mr. Long: Enclosed please find a copy of the docket for the above appeal that was recently filed in the Superior Court. Kindly review the information on this docket and notify this office in writing if you believe any corrections are required. Appellant's counsel is also being sent a Docketing Statement, pursuant to Pa.R.A.P. 3517, for completion and filing. Please note that Superior Court Dockets are available on the Internet at the Web site address printed at the top of this page. Thank you. Very truly yours, Karen Reid Bramblett Prothonotary VSL 2:16 P.M. Appeal Docket Sheet Docket Number: Page 1 of 2 April 13, 2007 628 MDA 2007 Ad& James A. DiSilverio V. Candy L. DiSilverio, Appellant Initiating Document: Notice of Appeal Case Status: Active Case Processing Status: April 5, 2007 Journal Number: Case Category: Domestic Relations Awaiting Original Record CaseType: Divorce Consolidated Docket Nos.: Related Docket Nos.: SCHEDULED EVENT Next Event Type: Receive Docketing Statement Next Event Due Date: April 27, 2007 Next Event Type: Original Record Received Next Event Due Date: May 15, 2007 COUNSEL INFORMATION Appellant DiSilverio, Candy L. Pro Se: Appoint Counsel Status: IFP Status: No Appellant Attorney Information: Attorney: Bayley, Mark F. Bar No.: 87663 Law Firm: Address: 57 W. Pomfret Street Carlisle, PA 17013 Phone No.: (717)241-2446 Fax No.: (717)241-2456 Receive Mail: Yes E-Mail Address: Receive E-Mail: No Appellee DiSilverio, James A. Pro Se: Appoint Counsel Status: IFP Status: Appellee Attorney Information: Attorney: Wassmer, Jaime Dawne Bar No.: 200705 Law Firm: Robinson & Geraldo, P.C. Address: 4407 N Front Street Harrisburg, PA 17110 Phone No.: (717)232-8525 Fax No.: (717)232-5098 Receive Mail: Yes E-Mail Address: jwassmer@robinson-geraldo.com Receive E-Mail: No Superior Court of Pennsylvania 4/13/2007 3023 2:16 P.M. Appeal Docket Sheet Docket Number: 628 MDA 2007 Superior Court of Pennsylvania Page 2 of 2 April 13, 2007 FEE INFORMATION Paid Fee Date Fee Name Fee Amt Amount Receipt Number 4/12/07 Notice of Appeal 60.00 60.00 2007SPRMD000316 TRIAL COURT/AGENCY INFORMATION Court Below: Cumberland County Court of Common Pleas County: Cumberland Division: Civil Date of Order Appealed From: March 28, 2007 Judicial District: 9 Date Documents Received: April 12, 2007 Date Notice of Appeal Filed: April 5, 2007 Order Type: Order Entered OTN: Judge: Oler, Jr., J. Wesley Judge Lower Court Docket No.: 03-1100 ORIGINAL RECORD CONTENTS Original Record Item Filed Date Content/Description Date of Remand of Record: BRIEFS DOCKET ENTRIES Filed Date Docket Entry/Document Name Party Type Filed By April 5, 2007 Notice of Appeal Filed Appellant DiSilverio, Candy L. April 13, 2007 Docketing Statement Exited (Domestic Relations) Middle District Filing Office 4/13/2007 3023 Z -?? -.; W James A. DiSilverio, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW Candy L. DiSilverio, No. 03 - 1100 CIVIL Defendant IN DIVORCE APPELLANT'S CONCISE STATEMENT OF MATTER COMPLAINED OF PURSUANT PA. R.A.P. 1925 AND NOW comes Appellant, Candy L. DiSilverio, by and through her plenary guardian, Monica Bohn, and attorney, Mark F. Bayley, Esquire, and sets forth the following matter complained pursuant to Pa. R.A.P. 1925: 1. The trial court erred in denying Ms. DiSilverio's motion to vacate a decree in divorce granted June 24, 2003 where Ms. DiSilverio pled and proved adequate facts to require the decree to be vacated under 23 Pa.C.S. § 3332. Date: Respectfully submitted, BAYLEY & MANGAN LA-1A Mark F. Bayley, E uire 57 W. Pomfret Street Carlisle, PA 17013 (717) 241-2446 Supreme Court I.D. # 87663 Attorney for Appellant 6 f. James A. DiSilverio, : IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. ; CIVIL ACTION - LAW Candy L. DiSilverio, No. 03 - 1100 CIVIL Defendant ; IN DIVORCE CERTIFICATE OF SERVICE I, Mark F. Bayley, Esquire, attorney for the Petitioner do hereby certify that I this day mailed a copy of the within Motion upon the following by depositing same in the United States mail, postage prepaid, at Carlisle, Pennsylvania, addressed as follows: Jaime D. Wassmer, Esquire 4407 N. Front Street P. O. Box 5320 Harrisburg, PA 17110-5320 r Date: -5-67 Mark F. Bayley, Esq rZ1„? CO JAMES A. DiSILVERIO, Plaintiff V. CANDY L. DiSILVERIO, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-1100 CIVIL TERM IN RE: OPINION PURSUANT TO PA. R.A.P. 1925(a) OLER, J., June 11, 2007. In this divorce case, Defendant Candy L. DiSilverio has appealed to the Pennsylvania Superior Court from an order denying her petition to vacate a divorce decree entered almost four years ago.' Plaintiff James A. DiSilverio, her former husband, has long since remarried.2 The decree in divorce was entered pursuant to affidavits of mutual consent executed by the parties,3 on June 24, 2003.4 Several years later, when Plaintiff decided to stop making mortgage payments on the house in which the parties' daughter, the daughter's family, and Defendant were living,5 the daughter secured an uncontested adjudication of incapacity with respect to her mother, was appointed guardian of her mother's person and estate,b and initiated a petition to vacate the 2003 divorce decree. The basis for the petition to vacate the divorce decree was said to be "extrinsic fraud" on the part of Plaintiffs 1 Notice of Appeal, filed April 5, 2007. z Notes of Testimony, Hearing, March 27, 2007, at pg. 39 (hereinafter N.T. ?. 3 Affidavits of Consent, filed June 16, 2003. a Decree in Divorce, June 24, 2003. s N.T. 13, 33. 6 Order of Court, June 29, 2006. Petition to Vacate Decree in Divorce Granted June 24, 2003, filed December 7, 2006. 8 See generally id.; see also, e.g., N.T. 53. 8C :Z I-ld Z I N iP LCOI k'?'? (Il-a -JHi ?O A hearing on the petition to vacate the divorce decree was held on March 27, 2007. Following the hearing, the court took the matter under advisement.9 Thereafter, by order of court dated March 28, 2007, the court denied Plaintiff's petition." From this order Defendant filed a notice of appeal on April 5, 2007.11 The basis for the appeal has been expressed in Plaintiff's statement of matters complained of on appeal as follows: The trial court erred in denying Ms. DiSilverio's motion to vacate a decree in divorce granted June 24, 2003 where Ms. DiSilverio pled and proved adequate facts to require the decree to be vacated under 23 Pa.C.S. § 3332.12 This opinion in support of the order appealed from is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS Defendant Candy L. DiSilverio is a resident of Cumberland County, Pennsylvania, and resides at 7 Birch Street, Mechanicsburg, 13 with her daughter and guardian, Monica Bohn, and with Ms. Bohn's husband and her two children. 14 Plaintiff James A. DiSilverio is a resident of York County, Pennsylvania, residing at 604 Harrisburg Pike, Dillsburg.15 The parties were married on November 20, 1976.16 Three children were born of the marriage, two sons and one daughter.'7 9 N.T. 55. 10 Order of Court, March 28, 2007. 11 Plaintiff's Notice of Appeal, filed April 5, 2007. 12 Appellant's Concise Statement of Matter Complained of Pursuant [to] Pa. R.A.F. 1925, filed April 18, 2007. 13 N.T. 23. 14 N.T. 5. 15 N.T. 26. 16 N.T. 40; but see N.T. 27 (initially providing the date of their nuptials was November 1, 1976). " See N.T. 39, 47. The sons' names do not appear of record. See generally N.T. The daughter's maiden name was Monica DiSilverio, and her married name is Monica Bohn. N.T. 5, 29. 2 In either 1997 or 1998, Defendant suffered from complications arising out of a gall bladder surgery,18 resulting in a condition known as anoxic encephalopathy.19 As a result of her condition, doctors advised Plaintiff that Defendant should be placed in a home, and that her prognosis was poor. 20 Plaintiff, however, refused to do so, and, through Plaintiff's efforts, Defendant participated in an outpatient program of rehabilitation at the brain injury ward of a facility known as Mechanicsburg Rehabilitation .2 1 During this time, Defendant and Plaintiff lived in the marital home, and Plaintiff assisted with Defendant's rehabilitation on a daily basis, teaching her to walk, talk, eat, clean and care for herself in the event that he himself became unable to care for her. 22 However, the marriage was stressed,23 and, on March 12, 2003, Plaintiff filed a complaint in divorce with this court. 24 The circumstances surrounding the Defendant's execution of two documents associated with the divorce-an acceptance of service 25 and an affidavit of consent26-form the crux of the issue presented by Defendant's petition to vacate the decree in divorce. At the time Plaintiff presented the documents to Defendant for her execution, Plaintiff was represented by counsel-Steven K. Portko, Esquire, of Dillsburg, York County.27 Defendant was not represented by counsel at the time she executed the 18 Compare Petition To Vacate Decree in Divorce Granted June 24, 2003, at ¶ 2, filed December 7, 2006 (providing 1997 as the year of the injury), with, e.g., N.T. 6-7. (providing 1998 as the year of the injury). 19 N.T. 6. "Anoxic" is defined as pertaining to "anoxia", which, in turn, is defined as the absence of oxygen or the reduction of oxygen to levels below physiological levels. See Dorland's Illustrated Medical Dictionary 100 (24 h ed. 1965). "Encephalopathy" is defined as any degenerative disease of the brain. See id. at 485. z° See N.T. 27. 21 See N.T. 27. zz N.T. 27. zs See N.T. 30. 24 Hearing, March 27, 2007, Defendant's Exhibit 2 (hereinafter Def. Exh. _). The ground provided for the divorce was irretrievable breakdown of the marriage. See id. at ¶8. 25 Entered into the record as Def. Exh. 3. 26 Entered into the record as Def. Exh. 4. 27 N.T. 46. 3 documents; however, she was accompanied in the process by her daughter, Monica Bohn (hereinafter "Ms. Bohn"). 28 When Plaintiff decided to seek a divorce from Defendant, he discussed the matter with the parties' daughter, Ms. Bohn '29 and indicated his willingness to allow Ms. Bohn to continue to live in the marital residence, along with Ms. Bohn's family and Defendant. 30 Plaintiff's then-counsel, who was not present at the time of the execution of the documents, 31 advised Plaintiff to ensure that the divorce process was transparent and to provide for Defendant. 32 Plaintiff also testified that he wanted to ensure that his daughter knew everything that was transpiring, and that she be satisfied that her father would not "rip anyone off or make it illegal ....5533 To that end, Plaintiff ensured that Ms. Bohn was present and witnessed Defendant's signature on each of the two documents.34 Plaintiff conferred with Defendant and Ms. Bohn and explained that he was seeking a divorce and what the documents were. 35 Plaintiff then presented the documents to Defendant to sign. 36 When asked at the hearing on cross-examination whether he believed Defendant had the ability to understand the significance of the documents at the time Defendant executed them, Plaintiff candidly testified that, due to the fact that Defendant retained some information and not other information, the question was difficult to answer with certainty. 37 When pressed further, Plaintiff testified that he felt that the Defendant did 28 N.T. 10, 29. 29 Monica DiSilverio at that time. N.T. 29. 30 N.T. 15, 29, 31, 47. Plaintiff testified that he acted, in part, out of concern for his two grandchildren, whom he had been supporting at that time. Id. at 29. 3' N.T. 46-47. "See N.T. 28. 33 N.T. 29-30. 34 N.T. 29-30, 46-47. " N.T. 47. 36 See N.T. 47. " N.T. 47. 4 have a degree of understanding of the documents, and noted that she (and he) had previously entered into a contractual arrangement involving a refinancing agreement. 38 In March of 2003, Plaintiff left the marital residence, leaving Defendant, her daughter/caretaker, Ms. Bohn, Ms. Bohn's two children, as well as Ms. Bohn's then- boyfriend, at the marital residence. 39 At that time, the residence had an approximate value of $170,000.00, and had recently undergone a renovation, which included installation of a new furnace. 40 Plaintiff and Defendant were divorced on June 24, 2003, and Plaintiff subsequently remarried.al Before leaving the residence, Plaintiff paid all outstanding utility bills for the home and assumed all the marital debt.42 Plaintiff also paid the monthly mortgage obligation of approximately $1,300.00, as well as all the utility bills, for the remainder of 2003.43 In late 2003, the Plaintiff asked his daughter, Ms. Bohn, to transfer the utilities into her own name, which she did.aa Although Plaintiff continued to pay the mortgage obligation until April, 2006, during that time Plaintiff sought the assistance of Ms. Bohn in meeting the mortgage obligation.45 However, Ms. Bohn made only partial and sporadic contributions.46 In order to maintain the financial obligations of two residences-the former marital residence and the home he shared with his new wife-Plaintiff secured a second job.47 " N.T. 47-48. The Plaintiff and Defendant entered into the home refinancing agreement/loan following Defendant's injuries in order to remodel the home to accommodate Defendant's condition. See N.T. 36- 37. 39 N.T. 30. 40 N. T. 30-31. 41 Petition to Vacate Decree in Divorce Granted June 24, 2003, at Exhibit D, filed December 7, 2006. Plaintiff remarried on June 27, 2003. N.T. 39. 42 N.T. 18, 31, 32. 43 N.T. 32. 44 See N.T. 32. 4s N.T. 33. 46 N.T. 34, 44, 51. "N.T. 34. 5 Eventually the financial burden became too great, and Plaintiff made his final mortgage payment on March 31, 2006.48 The next month, in April of 2006, Ms. Bohn filed a petition with this court which sought to have Defendant adjudicated an incapacitated person, and to have herself named as guardian of Defendant's person and estate. 49 Following an uncontested hearing on the matter, Defendant was so adjudicated, and Ms. Bohn appointed plenary guardian of her person and estate, by order dated June 29, 2006." Before terminating his mortgage payments, Plaintiff learned that Ms. Bohn had fallen into arrears with the utilities at the home, and that a sheriffs sale was being threatened .5 1 As a possible solution to the precarious financial situation, Plaintiff proposed a sale of the house, with all proceeds of the sale to go to the Defendant, Ms. Bohn and Ms. Bohn's children. 52 To that end, Plaintiff met with a realtor to help arrange the sale of the home, and, as one condition of the sale, Defendant, Ms. Bohn, as well as Ms. Bohn's husband and children, were to remain in possession until suitable replacement housing was procured.53 Ms. Bohn rejected this proposal, claiming that it amounted to an attempt by Plaintiff to "sell[] the house [from] underneath her. ,54 Plaintiff's relationship with his daughter, which had generally been good, became strained and acrimonious when Plaintiff stopped making the mortgage payments.ss 48 N.T. 43. 49 N.T. 33; see also Def. Exh. 1. 50 N.T. 6; see also Def. Exh. 1. 51 N.T. 33. An official from the Cumberland County Sheriff's Office visited Plaintiff's new residence and informed him that his former marital residence would be sold at a sheriff's sale due to an outstanding sewer service bill. Id. At the time of the hearing, the outstanding sewer service bill amounted to approximately $6,500.00. Id. at 19. 52 N.T. 33, 45. At some point, Plaintiff also offered to transfer the house to Monica Bohn in exchange for her assumption of the mortgage obligation. N.T. 35. This did not occur. 53 See N.T. 44-45. At that time, the unpaid sewage obligation stood at $3,000.00, with legal action being threatened to satisfy the debt. See id. at 45. Sa N.T. 33. 55 N.T. 37-38. 6 Plaintiff, having recognized that Ms. Bohn could not afford the financial obligation associated with the house, again proposed a sale of the house at a meeting with Ms. Bohn's attorney; however, this proposal was likewise rejected.56 Defendant, through her guardian Ms. Bohn, thereafter filed the aforesaid petition to vacate her divorce decree on December 7, 2006, asserting that the decree was the product of extrinsic fraud. 17 At the time of the hearing on the petition, the house was in foreclosure due to the outstanding mortgage obligation.sg Additionally, utility bills for electric, heat and sewer services were in arrears. 59 Defendant has monthly income of $429.00 per month from Social Security. 60 Ms. Bohn, who was unemployed at the time of the divorce, is now employed at an establishment named Fire Mountain. 61 Her earnings do not appear of record. 62 Plaintiff has been employed by the United States Postal Service since 1990, and earns approximately $23.00 per hour.63 Plaintiff also receives a monthly Veterans Administration pension of approximately $1,362.00.64 Plaintiffs assets also include a 16 N.T. 38. 57 See generally Petition to Vacate Decree in Divorce Granted June 24, 2003, filed December 7, 2006. Although the original petition does not expressly state "extrinsic fraud", the Defendant also filed an Addendum to Petition to Vacate Decree in Divorce Granted June 24, 2003 Filed on December 7, 2006, filed January 31, 2007, which expressly provided that the divorce was procured through extrinsic fraud. See Addendum to Petition to Vacate Decree in Divorce Granted June 24, 2003, at ¶¶ 2-3, filed January 31, 2007. Plaintiff thereafter filed a motion to strike the addendum. See Motion to Strike Pursuant to Pa. R.C.P. 1028(a)(2) For Failure to Conform to Pa. R.C.P. 1026 and 1033, filed March 21, 2007. At a conference held in chambers with counsel prior to the March 27, 2007 hearing, counsel for both parties stipulated that the issue of extrinsic fraud was sufficiently raised in the initial petition and that the addendum was superfluous. N.T. 4. Therefore, the addendum was stricken by the court at the commencement of the hearing. Order of Court, March 27, 2007; see also N.T. 4-5. "N.T. 20. s9 N.T. 18. bo N.T. 13, 50. 61 N.T. 15. 62 See generally N.T. The employment or earnings of Ms. Bohn's husband, Mr. Bohn, were not made of record. Id. 63 N.T. 40-41. ba N.T. 42. 7 pension through his Postal Service employment, which is of an unknown amount, and which is not presently in payout status. 65 Plaintiff reported approximately $62,000.00 in earnings for tax year 2006.66 DISCUSSION Statement of law. Section 3332 of the Domestic Relations Code provides as follows with respect to the opening or vacating of a decree in divorce: A motion to open a decree of divorce or annulment may be made only within the period limited by 42 Pa.C.S. § 5505 (relating to modification of orders) [30 days] and not thereafter. The motion may lie where it is alleged that the decree was procured by intrinsic fraud or that there is new evidence relating to the cause of action which will sustain the attack upon its validity. A motion to vacate a decree or strike a judgment alleged to be void because of extrinsic fraud, lack of jurisdiction over the subject matter or a fatal defect apparent upon the face of the record must be made within five years after entry of the final decree. Intrinsic fraud relates to a matter adjudicated by the judgment, including perjury and false testimony, whereas extrinsic fraud relates to matters collateral to the judgment which have the consequence of precluding a fair hearing or presentation of one side of the case. Act of December 19, 1990, P.L. 1240, 23 Pa. C.S. § 3332 (emphasis added). Section 3332 of the Divorce Code represents a codification of the inherent historic equitable powers of Pennsylvania Common Pleas Courts to open or vacate a decree in divorce. See, e.g., Allen v. MacLellan, 12 Pa. 328 (1849). Section 3332 also represents a limitation on the courts' traditionally broad equitable powers, whereby, prior to the section's promulgation, 67 a decree in divorce could be opened based upon any equitable ground deemed sufficient. See, e.g., Contakos v. Contakos, 204 Pa. Super. 445, 205 A.2d 619, 621 (Pa. Super. Ct. 1964) (pre-Divorce Code case providing equitable nature of petition to open decree in divorce and providing only that equitable considerations must form the basis of the inquiry)). However, following the enactment of Section 3332, courts may now open a decree within 30 days of its entry, and, as a basis therefor, may cite only two grounds-either O N.T. 41-42. 66 N.T. 41. 67 Current Section 3332 was originally designated as Section 602 of the Divorce Code of 1980. Act of April 2, 1980, P.L. 63, 23 Pa. C.S. § 602 (presently 23 Pa. C.S. § 3332). 8 intrinsic fraud, or newly discovered evidence. See 23 Pa. C.S. § 3332. On the other hand, courts may vacate a decree in divorce within five years of its entry for one of three reasons-extrinsic fraud, lack of subject matter jurisdiction or a fatal defect appearing on the face of the record. See 23 Pa. C.S. § 3332.68 A divorce decree is presumptively valid. Tanis v. Tanis, 206 Pa. Super. 213, 213 A.2d 102, 105 (Pa. Super. Ct. 1965) (citing Magistro v. Magistro, 182 Pa. Super. 487, 127 A.2d 758, 759 (Pa. Super. Ct. 1956)). The burden of persuasion is on the petitioner to overcome the presumption. See Foley v. Foley, 392 Pa. Super. 9, 572 A.2d 6, 9 (Pa. Super Ct. 1990). Extrinsic fraud must be "clearly established." See Wisor v. Wisor, 175 Pa. Super. 233, 240, 103 A.2d 498, 502 (Pa. Super. Ct. 1954). Intrinsic fraud, which can not be the basis for relief in the form of an order opening a divorce decree more than thirty days after its entry, is described by Section 3332 as relating to "a matter adjudicated by the judgment, including perjury and false testimony ...." 23 Pa. C.S. § 3332. Pennsylvania courts have held the following to be circumstances constituting intrinsic fraud: the giving of allegedly false testimony regarding alleged desertion at hearing for divorce, Contakos v. Contakos, 204 Pa. Super. 445, 205 A.2d 619, 621 (Pa. Super. Ct. 1964); perjured testimony at a hearing for divorce regarding alleged indignities, McLaughlin v. McLaughlin, 199 Pa. Super. 53, 184 A.2d 130, 132 (Pa. Super. Ct. 1962); a wife's alleged deception of her former husband regarding his paternity of a child in the context of a divorce decree entered by consent, passim Lory v. Lory, 33 Pa. D & C.3d 138 (Allegheny Cnty. 1983). Extrinsic fraud-which can form the basis of a petition to vacate a decree in divorce up to five years following its entry-is defined in Section 3332 as fraud which "relates to 68 The distinction between a petition to open a decree in divorce and a petition to vacate a decree was described by the Pennsylvania Supreme Court in Nixon v. Nixon, 329 Pa. 256, 198 A. 154, 158 (1938). See also Wisecup v. Wisecup, 190 Pa. Super. 384, 154 A.2d 332, 334 (Pa. Super Ct. 1959) (quoting Nixon v. Nixon, supra). When words have distinct legal meanings and significance, the Legislature is presumed to use those words for their precise legal meaning. 1 Pa. C.S. § 1903; see also McGinness v. Unemployment Compensation Bd of Review, 177 Pa. Super. 104, 110 A.2d 918 (Pa. Super. Ct. 1955). 9 matters collateral to the judgment which have the consequence of precluding a fair hearing or presentation of one side of the case." 23 Pa. C.S. § 3332. The following examples of extrinsic fraud help to elucidate the distinction between intrinsic and extrinsic fraud: - intentional misrepresentations regarding the potential for settlement while filing for and receiving a divorce decree, and, thereafter, dissuading appeal by additional promises of settlement, Fenstermaker v. Fenstermaker, 348 Pa. Super. 237, 502 A.2d 185, 190 (Pa. Super. Ct. 1985); - coercion of one party by the other to relinquish economic claims, Justice v. Justice, 417 Pa. Super. 581, 612 A.2d 1354, 1359 (Pa. Super. Ct. 1992) (citing Foley v. Foley, 392 Pa. Super. 9, 572 A.2d 6 (Pa. Super. Ct. 1990)); - fraudulently assuming a residence to establish jurisdiction, McLaughlin v. McLaughlin, 199 Pa. Super. 53, 184 A.2d 130, 132 (Pa. Super. Ct. 1962) (citing Wisor v. Wisor, 175 Pa. Super. 233, 103 A.2d 498 (Pa. Super. Ct. 1954); Cortese v. Cortese, 163 Pa. Super. 553, 63 A.2d 420 (Pa. Super. Ct. 1949)); - purposefully keeping the other party ignorant of a divorce proceeding, Cortese v. Cortese, 163 Pa. Super. 553, 63 A.2d 420, 421 (Pa. Super. Ct. 1949) (citing Walton v. Walton, 84 Pa. Super. 366 (Pa. Super. Ct. 1924); Willetts v. Willetts, 96 Pa. Super. 198 (Pa. Super Ct. 1929); Estok v. Estok, 102 Pa. Super. 604, 157 A. 356 (Pa. Super. Ct. 1931); Carey v. Carey, 121 Pa. Super. 251, 183 A. 371 (Pa. Super. Ct. 1936)). "When assessing whether the movant has proven the existence of extrinsic fraud, [a court must] focus[] on the actions taken by the prevailing party." Justice v. Justice, 612 A.2d at 1359. Application of law to facts. In the instant case, Defendant, through her daughter/guardian, Ms. Bohn, filed the petition to vacate approximately 48 months following the entry of the Decree. Therefore, Defendant was required to plead and prove extrinsic fraud in order to be afforded relief. See, e.g., 23 Pa. C.S. § 3332. Based upon Likewise, the Legislature is presumed to act with knowledge of the common law as it stands at the time of the enactment of a statute. See 1 Pa. C.S. § 1922(4). 10 the totality of the credible evidence presented at the hearing, the court found that the Defendant failed to meet her burden to prove fraud, either intrinsic or extrinsic. At the time Plaintiff initially broached the subject of a divorce with Defendant, Plaintiff, his wife (Defendant), Defendant's daughter/future guardian, et al., all resided in the marital home. The daughter agreed to remain in the marital home. Plaintiff assumed all the marital debt, relinquished possession of the principal marital assets, i.e., the home and its contents, and satisfied all outstanding utility bills. The testimony tended to establish that, although Defendant was not represented by counsel throughout the divorce, she was assisted in the process by her daughter, Ms. Bohn. The evidence further tended to show that, at the time of Defendant's execution of the two documents at issue (acceptance of service and affidavit of consent), Ms. Bohn was in attendance when the Plaintiff explained the documents to the Defendant, and was likewise present when Defendant executed the documents. At that time, Defendant's daughter failed to raise any concern regarding her mother's ability to appreciate the nature and significance of the documents. It was only upon Plaintiff's inability to continue to satisfy the monthly mortgage obligation on the former marital residence-some three years later-that Ms. Bohn sought to have her mother adjudicated an incapacitated person and to be named her guardian, and thereafter to petition to vacate the decree based upon extrinsic fraud. The court cannot help but view the temporal proximity of the circumstances with a degree of skepticism. Moreover, when Plaintiff sought his wife's consent to the divorce, Plaintiff acted on advice of counsel, who instructed Plaintiff to make everyone aware of the process and to provide for his wife. For three years Plaintiff paid the mortgage on the former marital residence, and secured a second job when this financial burden proved too great. Ms. Bohn's own family's financial contributions to the home they shared with Defendant were sporadic and generally meager. Upon the realization that Ms. Bohn had fallen into arrears for sewer service to the extent that a sheriff's sale was being threatened, Plaintiff suggested that the home be sold 11 and the proceeds utilized for Defendant's benefit, as well as the benefit of Ms. Bohn and her family. This proposal was rejected by Ms. Bohn. Plaintiff also asked Ms. Bohn to assume the mortgage in exchange for title to the property. This too was rejected. While the court is sympathetic to the unfortunate financial situation faced by Defendant, the present situation is, in the court's view, the product of improvidence rather than of fraud. The refusal of Defendant's guardian to agree to a sale of the home and to secure an affordable alternative living arrangement is the root cause of the instant crisis, not misrepresentation, deceit or concealment on the part of Plaintiff. In sum, the following facts militate against a finding of fraud: (a) Plaintiff acted in good faith and with the advice of counsel; (b) Defendant's adjudication of incapacity did not occur until three years later; (c) Defendant's daughter, Ms. Bohn, was in attendance when the documents were explained and executed; (d) Defendant's daughter, who now complains of the divorce, assisted Defendant throughout the divorce process; and (e) Ms. Bohn did not choose to question the decree until the home that she and her family shared was in jeopardy. Even assuming arguendo that a fraud was committed, the court is of the view that the alleged fraud would be more akin to intrinsic than to extrinsic fraud, thereby further precluding relief. See 23 Pa. C.S. § 3332. The submission of an acceptance of service and affidavit of consent in a divorce case, properly executed by the signatory, in the absence of either fraud in the factum or in the inducement, but allegedly voidable69 due to deficiencies of comprehension on the part of the signatory, is at best analogous to the provision of inaccurate testimony in support of a claim. False testimony and perjury are expressly given in Section 3332 as examples of intrinsic fraud. See 23 Pa. C.S. § 3332; see also Contakos v. Contakos, 205 A.2d at 621; McLaughlin v. McLaughlin, 184 A.2d at 132. The alleged actions, if true, would also be analogous to a wife's fraudulent concealment of the paternity of a child from her husband when securing a divorce by 69 See Gasper v. Ciao, 521 Pa. 491, 556 A.2d 819 (1989). 12 consent, which has also been determined to constitute intrinsic fraud. See Lory v. Lory, 33 Pa. D & C.3d 138. In short, the salient elements of extrinsic fraud do not, in the court's view, appear in this record. Again, assuming Defendant's allegations as true, no evidence was presented that Plaintiff lied to Defendant regarding what the documents were, or even about his desire to seek a divorce. See Fenstermaker v. Fenstermaker, 502 A.2d at 190 (providing that continued misrepresentations regarding potential settlement to dissuade appeal of divorce represents extrinsic fraud). Similarly, there was no evidence that Plaintiff coerced Defendant into signing the documents. See Justice v. Justice, 612 A.2d at 1359 (coercion to secure relinquishment of economic rights is extrinsic fraud). Further, in this case, jurisdiction was not secured through a misrepresentation of residence. See McLaughlin v. McLaughlin, 184 A.2d at 132 (citing Wisor v. Wisor, 175 Pa. Super. 233, 103 A.2d 498 (Pa. Super. Ct. 1954); Cortese v. Cortese, 163 Pa. Super. 553, 63 A.2d 420 (Pa. Super. Ct. 1949)). Finally, no evidence was presented which established that Plaintiff attempted to keep Defendant ignorant of the divorce proceeding, so as to prevent her exercising her rights in the court. See Cortese v. Cortese, 63 A.2d at 421 ((citing Walton v. Walton, 84 Pa. Super. 366 (Pa. Super. Ct. 1924); Willetts v. Willetts, 96 Pa. Super. 198 (Pa. Super Ct. 1929); Estok v. Estok, 102 Pa. Super. 604, 157 A. 356 (Pa. Super. Ct. 1931); Carey v. Carey, 121 Pa. Super. 251, 183 A. 371 (Pa. Super. Ct. 1936)). Based upon the evidence presented at the hearing, the court was of the opinion that Defendant failed to meet her burden of establishing that a fraud had occurred, and, more particularly, that an extrinsic fraud had occurred. BY THE COURT, 13 Jaime D. Wassmer, Esquire Robinson & Geraldo, P.C. 4407 North Front Street Harrisburg, PA 17110 Attorney for Plaintiff Mark F. Bayley, Esquire Bayley & Mangan 57 West Pomfret Street Carlisle, PA 17013 Attorney for Defendant 7 14 CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: SUPERIOR COURT OF PENNSYLVANIA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: JAMES A. DISILVERIO VS CANDY L. DISILVERIO 2003-1100 CIVIL TERM 628 MDA 2007 The documents comprising the record have been numbered from No.l to 151, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 06//f /2007 Curtis R. Lon oth otary Regina K. ebo, Dep y An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. Date Signature & Title Commonwealth of Pennsylvania County of Cumberland ss: N' 1, Curtis R. Long , Prothonotary In TESTIMONY W EEOF, I have hereunto this of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full, true and correct copy of the whole record of the case therein stated, wherein James A. Disilverio Plaintiff, and Candy L. Disi.lverio Defendant , as the same remains of record before the said Court at No. 2003-1100 of civil Term, A. D. 19 . set my hand and affixed a seal of said Court day of A. D., Hk2aW. Prothonotary I, Edgar B. Beryl ey President Judge of the Ni nth Judicial District, composed of the County of Cumberland, do certify that CLr is R. Long , by whom the annexed record, certificate and attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County, was, at the time of so doing, and now is Prothonotary in and for said County of Qmberl and in the Commonwealth of Pennsylvania, duly commissioned and ' to all of whose acts as such full faith re as el re t the said record, and credit are and ought to be given as well in Courts of jtt o f er. certificate and attestation are in due form of law and in tlje p er ?S VGA Presiden Judge Commonwealth of Pennsylvania County of Cumberland ss: 1, Gitri-ic; R_ Tnnci , Prothonotary of the Court of Common Pleas in and for the said County, do certify that the Honorable Edga B Ball by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time of making thereof, and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts as such full faith and credit are and ought to be given, as well in Courts of judicatureas elsewhere. IN TESTIMONY WHEREOF, 1 have hereunto set my hind and affixed ee seal of said Court 207s ??t ay o A. D. Prothonotary oe? Among the Records and Proceedings enrolled in the court of Common Pleas in and for the county of Ctunberland in the Commonwealth of Pennsylvania 628 MDA 2007 to No. 2003-1100 Civil Term Term, 19 is contained the following: COPY OF Appearance DOCKET ENTRY James A. Disilverio VS. Candy L. Disilverio **SEE CERTIFIED COPY OF DOCKET ENTRIES** O O A" y [- N N Wr , OU N A N p a c 0 n.+ I 0 U G a O W W r a w w , o w I (A E o U d w G R I c w T Q 0 a PYS511 Cumberland County Prothonotary's Office Page ivil Case Print 2003-01100 DISILVERIO JAMES A (vs) DISILVERIO CANDY L Reference No..: Filed........: 3/12/2003 Case Ty e.....: COMPLAINT DIVORCE Time........ 3:51 Judgmenp 00 Execution Date 0/00/0000 Judge Assigned: OLER J WESLEY JR Jury Trial.... Disposed Desc.: GRANTED Disposed Date. 6/24/2003 ------------ Case Comments ------------- Higher Crt 1.: 628 MDA 2007 Higher Crt 2.: ******************************************************************************** General Index Attorney Info DISILVERIO JAMES A PLAINTIFF PORTKO STEPHEN K 7 BIRCH STREET MECHANICSBURG PA 17050 DISILVERIO CANDY L DEFENDANT 7 BIRCH STREET MECHANICSBURG PA 17050 ******************************************************************************** * Date Entries ******************************************************************************** - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - /- 3/12/2003 COMPLAINT - DIVORCE ------------------------------------------------------------------- .5 6/16/2003 AFFIDAVIT OF CONSENT - PLAINTIFF ------------------------------------------------------------------- 6/16/2003 WAIVER-OF-NOTICE-OF -INTENTION -TO -REQUEST -ENTRY-OF-A-DIV-DECREE_PLFF 6/16/2003 AFFIDAVIT OF CONSENT - DEFENDANT -------------------------------------------------------------- 6/16/2003 WAIVER - OF - NOTICE - OF INTENTION TO REQUEST ENTRY OF A - DIV - DECREE-DEFT ------------------------------------------------------------------- 7 6/16/2003 ACCEPTANCE OF SERVICE FOR COMPLAINT IN DIVORCE - CANDY L DISILVERIO --------------------------------------------------------•----------- 6/17/2003 PRAECIPE TO TRANSMIT RECORD ------------------------------------------------------------------- C? 6/24/2003 DIVORCE DECREE ENTERED BY J WESLEY OLER JR J NOTICE MAILED ------------------------------------------------------------------- /f? 07(? 12/07/2006 PETITION TO VACATE DECREE IN DIVORCE GRANTED 06-24-03 - BY MARK F BAYLEY ATTY FOR DEFT ------------------------------------------------------------------- /a 12/15/2006 RULE TO SHOW CAUSE - 12-14-06 - IN RE: RULE ISSUED UPON RESPONDENT TO SHOW CAUSE WHY THE RELIEF REQUESTED IN THE ATTACHED PETITION SHOULD NOT BE GRANTED - RULE RETURNABLE IN 20 DAYS FROM THE DATE OF SVC - BY J.WESLEY OLER JR J - COPIES MAILED 12-15-06 ------------------------------------------------------------------- a-;7_3j/ 1/08/2007 ANSWER TO RULE TO SHOW CAUSE WHY THE PETITION TO VACATE DECREE IN DIVORCE SHOULD NOT BE GRANTED - BY JAIME D WASSMER ATTY FOR PLFF ------------------------------------------------------------------- 3s'-3 9 1/24/2007 ORDER OF COURT - 01-22-07 - IN RE: HEARING 03-27-07 AT 1:30 PM IN CR 1 CUMB CO COURTHOUSE - BRIEFS DUE 5 DAYS BEFORE HEARING ON THE ISSUE OF JURISDICTION OF THE COURT TO VAACATE A DIVORCE DECREE AT THIS POINT - BY J WESLEY OLER JR J - COPIES MAILED 01-24-07 ------------------------------------------------------------------- 3 DENDUM 1/31/2007 AFDILED ON 120-07-06I- BY MARKAFEBAYLEYEATTYDFORGPETITIIONER24-03 ------------------------------------------------------------------- y3_&.5- 3/22/2007 MOTION TO STRIKE PURSUANT TO PA RCP 1028 A 2 FOR FAILURE TO CONFORM TO PA RCP 1026 & 1033 - BY JAIME D WASSMER ATTY FOR PLFF ------------------------------------------------------------------- 7-07 - IN RE: RULE I 3/27/2007 CORDER OF AUSE WHYCOT ETRELIEF2REQUESTED SHOULD NOTSBESUEDGRANTEDUPON RRULE SHOW RETURNABLE AT THE HEARING 03-27-07 AT 1:30 PM IN CR 1 CUMB CO COURTHOUSE - BY J WESLEY OLER JR J - COPIES MAILED 03-27-07 ------------------------------------------------------------------- (07 3/28/2007 ORDER OF COURT - DATED 03-28-07 - IN RE DEFENDANTS PEITITON TO VACATE DECREE IN DIVORCE GRANTED JUNE 24 2003 BEFORE OLER J. - DEFTS PETITION TO VACATE DECREE IN DIVORCE GRANTED 06-24-03 AND FOLLOWING A HEARING HELD ON MARCH 27, 2007 THE PETITION IS DENIED - BY THE COURT J WESLEY OLER J PYS511 Cumberland County Prothonotary's Office Page Civil Case Print 2003-01100 DISILVERIO JAMES A (vs) DISILVERIO CANDY L Reference No..: Filed........: 3/12/2003 Case Type.....: COMPLAINT - DIVORCE Time.........: 3:51 Judgment......: 00 Execution Date 0/00/0000 Judge Assigned: OLER J WESLEY JR Jury Trial.... Disposed Desc.: GRANTED Disposed Date. 6/24/2003 ------------ Case Comments ------------- Higher Crt 1.: 628 MDA 2007 6' 4/02/2007 /0 4/02/2007 70-7y 4/05/2007 -25--24, 4/11/2007 4/16/2007 ??y gf 4/18/2007 o 4/26/2007 J3( 13 7 Isb 6/12/2007 6/18/2007 Higher Crt 2.: ------------------------------------------------------------------- ORDER OF COURT - 03-27-07 - IN RE: PETITION TO VACATE DECREE - RECORD DECLARED CLOSED-MATTER TAKEN UNDER ADVISEMENT - BY J WESLEY OLER JR J - COPIES MAILED 04-02-07 ------------------------------------------------------------------- ORDER OF COURT - 03-27-07 - IN RE: MOTION TO STRIKE - STRIKEN FROM THE RECORD - BY J WESLEY OLER JR J - COPIES MAILED 04-02-07 ------------------------------------------------------------------- NOTICE OF APPEAL - BY MARK F BAYLEY ATTY FOR APPELLANT ------------------------------------------------------------------- ORDER OF COURT - 04-10-07 - IN RE: APPELLANT DIRECTED TO FILE OF RECORD IN THIS COURT AND TO SERVE UPON THE UNDERSIGNED JUDGE A CONCISE STATEMENT OF MATTERS COMPLAINED OF ON APPEAL NO LATER THAN 14 DAYS AFTER ENTRY OF THIS ORDER - BY J WESLEY OLER JR J - COPIES MAILED 04-11-07 ------------------------------------------------------------------- SUPERIOR COURT OF PA NOTICE OF APPEAL DOCKETING TO #628 MDA 2007 ------------------------------------------------------------------- APPELLANT'S CONCISE STATEMENT OF MATTER COMPLAINTED OF PURSUANT PA RAT 1925 - BY MARK F BAYLEY ATTY FOR APPELLANT ------------------------------------------------------------------- TRANSCRIPT OF PROCEEDINGS - 03-27-07 ------------------------------------------------------------------- OPINION PURSUANT TO PA RAP 1925(A) - 06-11-07 - BY J WESLEY OLER JR J - COPIES MAILED 06-12-07 ------------------------------------------------------------------- NOTICE OF DOCKET ENTRIES MAILED TO JAIME D WASSMER ESQ MARK F BAYLEY ESQ - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - * Escrow Information * Fees & Debits Be*q Bill Pmts/Ad End Bal ******************************** ******** ****** ******************************* DIVORCE TAX ON CMPLT SETTLEMENT MASTER'S FEE DIV PA SURCHG AUTOMATION FEE JCP FEE APPEAL HIGH CT 35.00 35.00 .50 .50 5.00 5.00 125.00 125.00 10.00 10.00 5.00 5.00 10.00 10.00 48.00 48.00 -------------- 238.50 ---------- 238.50 .00 .00 .00 .00 .00 .00 .00 .00 .00 ******************************************************************************** * End of Case Information ******************************************************************************** TRUE COPY FROM RECORD In Testimony whereof, I h-re unto set my hand and the seal of said Court at Carlisle, Pa. This ...... Zf...... day of .491&4a ....... Prothonotary ?y e Superior Court of Pennsylvania Karen Reid Bramblett, Esq. Middle District Prothonotary David A. Szewczak, Esq. January 23, 2008 Prothonotary Certificate of Remittal/Remand of Record TO: Mr. Curtis R. Long Prothonotary RE: DiSilverio, J. v. DiSilverio, C. No.628 MDA 2007 Trial Court/Agency Dkt. Number: 03-1100 Trial Court/Agency Name: Cumberland County Court of Common Pleas Intermediate Appellate Court Number: 100 Pine Street. Suite 400 Harrisburg, PA 17101 717-772-1294 www.superior.court.state.pa.us Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Contents of Original Record: Original Record Item Part Date of Remand of Record: Filed Date Description June 20, 2007 1 MAR 03 2W ORIGINAL RECIPIENT ONLY - Please acknowledge receipt by signing, dating, and returning the enclosed copy of this certificate to our office. Copy recipients (noted below) need not acknowledge receipt. J es D. McCullough, Esq. Deputy Prothonotary Signature Date Printed Name . + N7 . ? _. E`I J. S58034/07 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 JAMES A. DiSILVERIO, IN THE SUPERIOR COURT OF Appellee PENNSYLVANIA V. CANDY L. DiSILVERIO, Appellant : No. 628 MDA 2007 Appeal from the Order entered March 28, 2007, in the Court of Common Pleas, Cumberland County, Civil, No. 03-1100 BEFORE: STEVENS, DANIELS,* JJ., and McEWEN, P.J.E. MEMORANDUM: FILED: January 23, 2008 Appellant, Candy L. DiSilverio, brings this appeal from the order of the trial court that denied her petition to vacate the final decree in divorce, entered almost four years earlier, on June 24, 2003, that divorced appellant and appellee, James A. DiSilverio, from the bonds of marriage. As our review confirms that appellant failed to establish that the divorce decree was subject to being vacated due to extrinsic fraud perpetrated by appellee, we affirm. The trial court has provided a detailed summary of the facts relevant to the disposition of this appeal: Defendant Candy L. DiSilverio is a resident of Cumberland County, Pennsylvania, and resides at 7 Birch Street, Mechanicsburg, with her daughter and guardian, Monica Bohn, and with Ms. Bohn's husband and her two children. Plaintiff James A. DiSilverio is a resident of York County, Pennsylvania, residing at 604 Harrisburg Pike, Dillsburg. * Judge Daniels did not participate in the consideration or decision of this case. J. S58034/07 The parties were married on November 20, 1976. Three children were born of the marriage, two sons and a daughter. In either 1997 or 1998, defendant suffered from complications arising out of gall bladder surgery, resulting in a condition known as anoxic encephalopathy. As a result of her condition, doctors advised plaintiff that defendant should be placed in a home, and that her prognosis was poor. Plaintiff, however, refused to do so, and, through plaintiff's efforts, defendant participated in an outpatient program of rehabilitation at the brain injury ward of a facility known as Mechanicsburg Rehabilitation. During this time, defendant and plaintiff lived in the marital home, and plaintiff assisted with defendant's rehabilitation on a daily basis, teaching her to walk, talk, eat, clean and care for herself in the event that he himself became unable to care for her. However, the marriage was stressed, and, on March 12, 2003, plaintiff filed a complaint in divorce with this court. The circumstances surrounding the defendant's execution of two documents associated with the divorce-an acceptance of service and an affidavit of consent-form the crux of the issue presented by defendant's petition to vacate the divorce decree. At the time plaintiff presented the documents to defendant for her execution, plaintiff was represented by counsel-Steven K. Portko, Esquire, of Dillsburg, York County. Defendant was not represented by counsel at the time she executed the documents; however, she was accompanied in the process by her daughter, Monica Bohn (hereinafter "Ms. Bohn"). When plaintiff decided to seek a divorce from defendant, he discussed the matter with the parties' daughter, Ms. Bohn, and indicated his willingness to allow Ms. Bohn to continue to live in the marital residence, along with Ms. Bohn's family and defendant. Plaintiff's then counsel, who was not present at the time of the execution of the documents, advised plaintiff to ensure that the divorce process was transparent and to provide for defendant. Plaintiff also testified that he wanted to ensure that his -2- J. S58034/07 daughter knew everything that was transpiring, and that she was satisfied that her father would not "rip anyone off or make it illegal ...." To that end, plaintiff ensured that Ms. Bohn was present and witnessed defendant's signature on each of the two documents. Plaintiff conferred with defendant and Ms. Bohn and explained that he was seeking a divorce and what the documents were. Plaintiff then presented the documents to defendant to sign. When asked at the hearing on cross-examination whether he believed defendant had the ability to understand the significance of the documents at the time defendant executed them, plaintiff candidly testified that, due to the fact that defendant retained some information and not other information, the question was difficult to answer with certainty. When pressed further, plaintiff testified that he felt the defendant did have a degree of knowledge of the documents, and noted that she (and he) had previously entered into a contractual arrangement involving a refinancing agreement. In March of 2003, plaintiff left the marital residence, leaving defendant, her daughter/caretaker, Ms. Bohn, Ms. Bohn's two children, as well as Ms. Bohn's then- boyfriend, at the marital residence. At the time, the residence had an approximate value of $170,000.00, and had recently undergone a renovation, which included installation of a new furnace. Plaintiff and defendant were divorced on June 24, 2003, and plaintiff subsequently remarried. Before leaving the marital residence, plaintiff paid all outstanding utility bills for the home and assumed all marital debt. Plaintiff also paid the monthly mortgage obligation of approximately $1,300.00, as well as all the utility bills, for the remainder of 2003. In late 2003, the plaintiff asked his daughter, Ms. Bohn, to transfer the utilities into her own name, which she did. Although plaintiff continued to pay the mortgage obligation until April, 2006, during that time plaintiff sought the assistance of Ms. Bohn in meeting the -3- J. S58034/07 mortgage obligation. However, Ms. Bohn made only partial and sporadic contributions. In order to maintain the financial obligations of two residences-the former marital residence and the home he shared with his new wife-plaintiff secured a second job. Eventually, the burden became too great, and plaintiff made his final mortgage payment on March 31, 2006. The next month, in April of 2006, Ms. Bohn filed a petition with this court which sought to have defendant adjudicated an incapacitated person, and to have herself named as guardian of her person and estate. Following an uncontested hearing on the matter, defendant was so adjudicated, and Ms. Bohn appointed plenary guardian of her person and estate, by order dated June 29, 2006. Before terminating his mortgage payments, plaintiff learned that Ms. Bohn had fallen into arrears with the utilities at the home, and that a sheriff's sale was being threatened. As a possible solution to the precarious financial situation, plaintiff proposed a sale of the house, with all proceeds of the sale to go to the defendant, Ms. Bohn and Ms. Bohn's children. To that end, plaintiff met with a realtor to help arrange the sale of the home, and, as one condition of sale, defendant, Ms. Bohn, as well as Ms. Bohn's husband and children, were to remain in possession until suitable housing could be procured. Ms. Bohn rejected this proposal, claiming that it amounted to an attempt by plaintiff to "sell[] the house [from] underneath her." Plaintiff's relationship with his daughter, which had generally been good, became strained and acrimonious when plaintiff stopped making the mortgage payments. Plaintiff, having recognized that Ms. Bohn could not afford the financial obligation associated with the house, again proposed the sale of the house at a meeting with Ms. Bohn's attorney; however, this proposal was likewise rejected. Defendant, through her guardian Ms. Bohn, thereafter filed the aforesaid petition to vacate her divorce decree on December 7, 2006, asserting that the decree was the product of extrinsic fraud. At the time of the hearing on the petition, the house was in foreclosure due to the outstanding mortgage obligation. Additionally, -4- J. S58034/07 utility bills for electric, heat and sewer services were in arrears. Defendant has monthly income of $429.00 per month from Social Security. Ms. Bohn, who was unemployed at the time of the divorce, is now employed at an establishment named Fire Mountain. Her earnings do not appear of record. Plaintiff has been employed by the United States Postal Service since 1990, and earns approximately $23.00 per hour. Plaintiff also receives a monthly Veteran's Administration pension of approximately $1,362,00. Plaintiff's assets also include a pension through his Postal Service employment, which is of an unknown amount, and which is not presently in pay out status. Plaintiff reported approximately $62,000.00 in earnings for tax year 2006. Trial Court Opinion, June 7, 2001, pp. 2-8 (footnotes omitted). Appellant contends in this appeal that the trial court erred when it denied the petition she filed requesting that the final decree in divorce be vacated as a result of the conduct of appellee. Specifically, appellant argues that the decree should be vacated because appellee induced her to sign an affidavit of consent pursuant to section 3301(c) of the Divorce Code, and a waiver of notice of intention to request entry of a divorce under section 3301(c) of the Divorce Code, despite his knowledge of her incapacitated condition. The opinion of the learned Judge J. Wesley Oler, Jr., has thoroughly discussed and properly rejected the argument presented by appellant. We agree with Judge Oler that, based upon the evidence presented at the hearing, appellant failed to meet her burden to establish extrinsic fraud. -5- J. S58034/07 Compare: Foley v. Foley, 572 A.2d 6, 8-10 (Pa.Super. 1990)(extrinsic fraud established where there was coercion upon one party by another to relinquish economic claims); Fenstermaker v. Fenstermaker, 502 A.2d 185, 190 (Pa.Super. 1985)(extrinsic fraud found where continued representations of intent to finalize parties' property settlement dissuaded appeal of divorce decree); Cortese v. Cortese, 63 A.2d 420, 422 (Pa.Super. 1949)(intentional withholding of notice of a divorce action constituted extrinsic fraud). In light of the thorough analysis provided by the trial court, we rely upon the opinion of the trial judge to affirm the order that denied the petition to vacate the divorce decree.' Order affirmed. Judgment Entered: c e uty Prothonotary January 23, 2008 Date: ' A copy of the opinion of the trial judge is attached hereto and made a part of this memorandum. -6- ,.-? ,? -?- -yn f ? ?? s?-? ;? ;%-? .w- .?-, ,. r?-? r" <-?F .d_ .. ?,ti... • i . CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: SUPERIOR COURT OF PENNSYLVANIA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: JAMES A. DISILVERIO VS CANDY L. DISILVERIO 2003-1100 CIVIL TERM 628 MDA 2007 • The documents comprising the record have been numbered from No.l to 151, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 06//'1 /2007 Curtis R. Lon otho tary Regina K. Lebo, Depu An additional copy of this certificate is enclosed. Phase si n and date co thereb acknowledging receipt of this record. IV8 III uper or Court Date JUN 2 0 2nn7 Signature & Title MIDDLE C ti CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER • PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: SUPERIOR COURT OF PENNSYLVANIA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: JAMES A. DISILVERIO VS CANDY L. DISILVERIO 2003-1100 CIVIL TERM 628 MDA 2007 • The documents comprising the record have been numbered from No.l to 151, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 06/ /~ /2007 Curtis R. Lon r thon ary Regina K. Le o, Deput An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledeing receipt of this record. Date Signature & Title RECORD FILED IN SUPERIOR COURT JUN 2 0 2007 MIDDLE