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RAYMOND KISS,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff,
CIVIL ACTION-LAW
NO, 98-4530 CIVIL TERM
PHYLLIS WILKE,
Defendant.
Petition to Transfer the Jurisdictional Venue to the Superior Court of
New Jersey - Law Division. Familv Part. Middlesex County
The Petitioner, Raymond Kiss, pro se, files this Petition to Transfer the
Jurisdictional Venue to the Superior Court of New Jersey, - Law Division, Family Part,
Middlesex County and in support thereof, avers the following:
1, The petitioner respectfully requests that venue in this matter be
transferred as noted above inasmuch as the petitioner is a bona fide residence of the
State of New Jersey; and,
2, Petitioner resides at 5 Church Street, Township of Piscataway, County of
Middlesex, State of New Jersey,
3, Petitioner has resided at 5 Church Street, in the Township of Piscataway and
County of Middlesex, State of New Jersey, since 1990, Petitioner had an
extended stay in Cumberland County, Pennsylvania with respondent from March
1998 until July 31, 1998 until after the birth of their daughter, Petitioner returned
to his New Jersey residence, and then went back to Cumberland County,
Pennsylvania, later during the same year from August 1998 until October 1998
to again support the respondent immediately after the birth of their child,
RA YMOND KISS,
Plaintiff/Petitioner
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: CIVIL ACTION - LAW
PHYLLIS WILKE,
Defendant/Respondent
NO. 98-4530 Civil Term
ANSWEU WITH NEW MATTEU TO I'LAINTIFF'S
PETITION TO TRANSFER FORUM NON CONVENIENS
AND NOW, comes thc Dcfendant/Respondent, Phyllis Wilke, by and through her
attorney, Richard C. Gaffney, Esquire, who files this Answer with New Matter and statcs as
follows:
ANSWER
1. Admitted on information and bclicf that the Plaintiff/Petitioner resides at thc
address indicated in his Petition, Respondent admits that Mr, Kiss is the natural father of the
Child, Eva Rose Wilke-Kiss,
2, Admitted,
3, Admitted,
4, Denied, Petitioner was awarded custody ofthc Child by Order of Court issued
June 27,2000; therefore, Child's residence prior to that time was not established,
5, Admitted in part and denied in part, It is admitted that the factors listed in
Paragraph 5 of the Petition are contained within 23 Pa,C,S,A, S 5348, It is denied that Paragraph
5 completely and accuratcly states the applicable legal standard,
6, Admitted,
7, Admitted,
8, Admitted,
9, Admitted in part and denied in part. Defendant admits that the Civil Contempt
and Cross Contempt are within this Court's jurisdiction, It is denied that the best intcrests of the
child and thc purposes of the Uniform Child Custody Jurisdiction Act ("VCCJA"), 23 Pa.C,S,A,
* 5341 el self" arc besl served by allowing Ihe lransfer, To Ihe contrary, il is in lhe best inleresls
oflhe child for Ihis Court to relainjurisdiction oflhis mallcr lar allcast the lallowing reasons:
a. This Courl is Ilulliliar wilh Ihc facts of this case, has had jurisdiction of
this case since 1998, has held filII evidentiary hearings in this malleI' and has issued temporary
and permanenl orders in conneclion therewith; and
b, The parlies. by their course of conduct over the three-year period
beginning in 1998, have implicitly agreed that Cumberland County is the appropriate forum; and
c, II is in the best interests ofthc child to resolve this mattcrc.~pcditiously;
all the transfer would accomplish is additional delay, expense, burden and uncertainty, any of
which are manifestly not in the child's best interest.
NEW MATTER
AFFIRMA TlVE DEFENSES
First Defense
10, Paragraphs I through 9 arc incorporated herein as if set forth at length,
II, Plaintiff has failed to show how the transfer is in the best interest of the child as
required by Section 5348 of the VCClA, which provides that when making a determination
regarding the convenience of the forum, "the court shall consider ifit is in the interest of the
child that another state assume jurisdiction," 23 Pa.C,S,A, S 5348,
12, It is in the best interest of the child that the matter be resolved as expeditiously as
possible and without further delay; this can best be accomplished by this Honorable Court
retaining jurisdiction of the matter.
13, It is also in the best interest of the child that this Honorable Court retain
jurisdiction because: (a) the only expert involved with the maller, Dr, Stanley Schneider, is in
Cumberland County; (b) this Court is familiar with the facts of the case; (c) this Court has held
full evidentiary hearings on the matter; and (d) this Court has issued temporary and permanent
orders in connection therewith,
Second Defense
14, Paragraphs I through 13 are incorporated herein as if set forth at length.
15, Section 5348 of the UCC.lA provides Ihat one of the fhctors to be considered
when determining whether it is in the child's interesllo translcrjurisdiclion to another state is
whelher Ihe parties have agreed on anolher forum which is no less appropriate. 23 Pa,C,S,A, S
5348,
16, By their aClions and eonduel since 1998, the parties have implicitly agreed that
Cumberland County is the appropriate forum for Ihis action, Plainliff and Defendant have
continually submitted to Ihis Court's jurisdiction, to include the mailers presently as issue.
Third Defense
17, Paragraphs I through 16 arc incorporated herein as if set forth at length,
18, Plaintiffs claims arc barred by Ihe doctrine of judicial and equitable estoppel.
19, Plaintiff chose Cumberland County as the forum within which to bring this action,
and has continued to avail himself of the Cumberland County judiciary since 1998,
20, Plaintiff is therefore equitably estopped from denying this Court's jurisdiction,
Fourth Defense
21. Paragraphs I through 20 are incorporaled herein as if set forth at length,
22, Plaintiffs claims are barred for reasons of judicial economy,
23, The actions presently at issue before this Honorable Court include contempt
claims brought by both Plaintiff and Defendant, as well as the petition for modification of
custody,
24, The contempt claims can only be heard by this Honorable Court. Granting
Plaintiffs Petition would create two separate actions to be reviewed by two different courts,
whereas a denial of Plaintiffs Petition would ensure judicial economy and prevent unnecessary
delay and expense,
Fifth Defense
25, Paragraphs I through 24 are incorporated herein as if set forth at length,
26, Plaintiffs claims should be barred because reviewing his Petition to Transfer
prior to hearing the outstanding Contempt and Custody claims improperly requires this Court to
predetermine the outcome of those matters.
27, The Petitions regarding Conlempt and Custody should be determined prior 10 a
review oflhe instant Petition because. should the Court find in Defendant's favor on the
aforesaid Petitions. the lransler to New Jersey would be inappropriate,
Sixth Defense
28, Paragraphs I through 27 arc incorporated herein as if set forth at length,
29, In addilionto the instant Petition, PlaintifT has filed, pro se, a Petitionlo Transfer
Jurisdictional Venue to the Superior Court ofNcw Jersey-Law Division, Family Part,
Middlesex County, A true and corrcet copy of the Petition to Transfer Jurisdictional Venue and
Defendant's response thereto is attached hereto as Exhibit "A" and made a part hereof as though
fully set forth herein,
30, On its face, PlainliIrs pro se petition attacks this Court's jurisdiction and venue,
and lays bare the fact that the instant Petition is in reality, nothing more than a challenge to this
Court's jurisdiction and venue,
31. Challenges to jurisdiction and venue, however, arc barred by Section 1028 of the
Pennsylvania Rules of Civil Procedure, which contemplates that allegations of improper
jurisdiction and venue must be brought by preliminary objection within twenty days of the initial
pleading, (See, Pa,R,C,P, 1028),
32, Because the instant Petition is substantially (if not facially) a challenge to
jurisdiction and venue. Plaintiffs claims are barred by Section 1028 of the Pennsylvania Rules
of Civil Procedure,
Seventh Defense
33, Paragraphs I through 32 arc incorporated herein as if set forth at length.
34, Plaintiffs Petition to Transfer seeks to impose unnecessary burdens and hardships
upon the parties, to include incurring additional costs, expenses and delays in transferring the
matter to New Jersey, locating and engaging local counsel in New Jersey, as well as locating and
engaging another expert witness,
35, This Honorable COUlt's retention of the proceedings is the only way to prevent
said burdens and hardships from occurring,
RA YMOND KISS,
PlaintifflPetitioner
IN TilE COURT OF COMMON PLEAS
CUMBERLANJ) COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
PHYLLIS WILKE,
Defendant/Respondent
NO. 98-4530 Civil Term
ANSWER WITH NEW MATTER TO PLAINTIFF'S
"PETITION TO TRANSFER THE JURISDICTIONAL VENUE !sic! TO TIm SIJl'EIWm
COURT OF NEW JERSEY-LAW DIVISION, FAMILY PART, MfI)J)LESEX COUNTY"
AND NOW, comes the Defendant/Respondent. Phyllis Wilke. by and Ihrough her
attorney, Richard C, Gaffney, Esquire, who files this Answer with New Maller and slules as
follows:
ANSWER
I, The averments in Paragraph I of Plainlifrs Pelition arc conclusions of luw 10
which a responsive pleading is not required, In so far as a responsive pleadiug is required, till:
averments are denied. By way of further pleading, Respondenl specifically dcnics Ihal venuc
should be transferred in this matter. By way of further pleading, Respondent dcnics for want or
knowledge that Plaintiff is a bona fide residcnt of the statc of New Jersey,
2, Admitted on information and belicf,
3, Denied, Respondenl specifically denies that Pctitioncr has bccn a rcsidcnl or
Piscataway, New Jersey since 1990, To the contrary, Petitioncr was a rcsidcnt of Cumberland
County, Pennsylvania beginning in March 1998 and continuing through April 1999, On July 31,
1998, Petitioner left Respondent and temporarily returned to New Jerscy where he lodgcd with
his mother until approximately September 1998, Petitioner resumed residcnce in Cumbcrland
County, Pennsylvania for the period beginning on or about Scptcmbcr 1998 and cnding April
1999, By way offurther pleading, Respondent specifically denies that PlaintifT"supporled thc
Respondent." To the contrary, at no time did P.etitioncr support Respondent.
4, Denied, Respondent spceiflcally dcnics thaI Petilioner was a hona fldc rcsidcnt or
New Jersey at thc time this action was initiatcd and Rcspondcnl rurlher denies Ihall'lainlifThus
always bccn a bona fidc rcsidcnt of New Jcrscy, To thc contrnry, Pctitioncr was a rcsidcnt of
Cumbcrland County, Pennsylvania atlhc limc Ihis action arosc, Pctitioncr has not always bccn a
rcsidcnl of the Slate ofNcw Jerscy: Pelitioner has, atrclcvanl timcs, bcen a rcsidcnt of
Cumbcrland County, Pcnnsylvania,
5, Admittcd in part and dcnicd in part. Rcspondcnt admits that shc is no longcr a
residcnt ofCumbcrland County, Rcspondent dcnics living at thc addrcss statcd in Pctitioncr's
Petition, Rcspondcnt presently rcsidcs at 101 Washington A venuc, ApI. lIS, Oakmont,
Allcgheny County, Pcnnsylvania 15139.
6, Admillcd,
7, Admillcd in part and dcnicd in parI. Denied as to the Child's age. The Child is
currently two ycars, 10 months in age,
8, Dcnied, Petitioncr was awarded custody of thc Child by Ordcr of Court issued
Junc 27, 2000; thus, Child's residcncc prior to that timc was not establishcd.
9. Dcnicd, Rcspondcnt dcnies Petitioncr's assertion that he was enroutc to pick up
the child from day carc on or about June 28, 1999, Further, if it is Petitioner's assertion that
Respondent was cn routc to pick up her daughter from day care, this is also denied by the
Respondent. On the day in question, Petitioner had contacted a friend to collect the Child from
the day care facility,
10, Denied as stated, Respondent specifically denies the allegation that Plaintiff "has
had physical custody of his daughter since that date (June 28, 1999)," To the contrary, Plaintiff
and Respondent shared physical custody of their daughter,
NEW MATTER
11, Paragraphs I through 10 are incorporated herein as if set forth at length,
12. Plaintiffs Petition fails to comply with Cumberland County Rule of Procedure
205-1. C,C,R.P, 205-1 provides:
The court has implemented this rule in order to avoid a party who is
represented by an attorney from filing a motion with the court without counsel's
knowledge, If the court is able to identify that circumstance as occurring, the
court will not act on the motion, but forward the motion to the party's counsel of
record for such purpose as counsel may deem appropriate on behalf of his or her
clienl.
C.C,R.P.205-1.
Plaintiff is represented in the above-captioncd mullcr by Lisa M, (jrcasoll. Esquil'l:,
Plaintiff has filed the Petition to Transfer Jurisdictional Vcnuc I sicllothc Supcrior ('ourt or Ncw
Jersey - Law Division, Family Part, Middlesex Counl)' (Ihe "Pelilion"), fJ/'O s<" ^cwnlillg 10 thc
local rule, the Court should not act on thc motion, but should rorward itlo Plaintit'l's cOllnsclor
record, C,C,R,P, 205-1.
13. Plaintiff's Petition fails to comply wilh Pcnnsylvania Rulc or CivilPl'Occdlll'c No,
1023, Pa,R.C,P. 1023 provides:
(a) Every pleading, motion, legal papcr or othcr papcr dircctcd 10 thc court
and every discovery request or responsc or a party rcprcsclllcd by uu
attorney shall be signed by atlcast onc ullorncy or rccord inthc 1I110I'llCY'S
individual name, Every such doeumclll or u party not rcprcsclltcd by all
attorney shall be signed by thc parly,
Pa,R,C,P, 1023,
Plaintiff is represented in tbe above-caplioncllmallcr by Lisa M, (jrcason, Esquirc. Ms,
Greason's signature is not affixed to PlainlirCs PClition as rcquircd by Rulc 1023, Altcl'llativcly,
the Petition is not signed by the Plaintiff, as is rcquircd by thc Rulc, 111 cithcr casc, Plaintifl's
Petition was not properly signed, Accordingly, the Courl should strikc Plaintilrs PClition from
the record,
14, Plaintiff's Petition fails to comply with Pennsylvaniu Rule orCivilProccdure No,
1025, Pa,R.C,P, 1025 provides:
Every pleading or other legal paper or a party rcprcscntcd by un allol'llcy
shall be endorsed with the name of the allorney, and cvcry plcading or other Icgal
paper of a party not represented by an attorney shall bc cndorscd with Ihc namc or
the party, together in each case with an addrcss withinlhc Commonwcalth,
Pa,R,C,P, 1025,
The Petition is not properly endorsed with the namc und address or thc allomcy or record,
Lisa M, Greason, Esquire, Altemalively, the Petition is nOI properly cndorscd with the nume and
address of the Plaintiff in the matter, In eilher easc, Plaintiff's Petition was not properly
endorsed, Accordingly, the Court should slrike Plaintiff's Petition from the record.
15. Pennsylvania Rules of Civil Proecdurc pertaining to Venue contcmplate that
claims alleging improper venue be raised by preliminary objcction and irnol so raised shall be
.. waived, (See, Pa,R,C,P, 1006(e)), Plaintii'l's pctition rcgarding vcnue was notli:ed as a
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RAYMOND KISS
Plaintiff
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
V,
PHYLLIS WILKE
Defendant
Civil Action - Law
No, 98-4530 Civil Term - Custody
DECLARATION OF DR, STANLEY E. SCHENIDER, ED,D" R.C,E,
Dr, Stanley E, Schneider, Ed.D" R.C,E" having been duly sworn, deposes, declares
and states as follows:
1, I am a psychologist licensed to practice in Pennsylvania,
2, I am a Certified Addictions Counselor Diplomate and hold Diplomatic status in the Professional
Academy of Custody Evaluators,
3, I met with the parties to this action beginning in September 1999 for the purpose of conducting a
custody evaluation for the Court to be presented at a hearing that was originally scheduled for
January 2000.
4, I reviewed all of the background information on this matter, inclUding the court orders and custody
conciliation conference memorandum,
5, I compiled a significant amount of data, interviewed the parties, observed each of the parents on
separate occasions wilh the minor child, Eva Rose Wilke-Kiss, administered personality inventories
to both parents, and did a drug and alcohol evaluation,
6, I prepared an interim report for this court in January 2000, wherein I recommended that Phyllis Wilke
have "open access" to her daughter, Eva, without supervision, The interim recommendation
provided that Ms, Wilke continue to offer evidence of her sobriety and, in the third paragraph of my
report, I indicated what documentation would be acceptable for this purpose,
7, Between the January 2000 date of the interim report and the June 2000 hearing before the court, Ms,
Wilke provided significant documentation of her commilment to sobriety, attendance at Alcoholics
Anonymous meetings sufficient to convince me that her socriety had been maintained. She
evidences commilment and consistency with her recovery,
.
8, My personal observations of Ms, Wilke (both with and without Eva present) indicate a parent who is
concerned about the impact that her behavior and the behavior of Eva's father is having on Eva. I
found Ms, Wilke to be very attuned to and very empathetic with the child, She was a well-prepared
parent, in that she brought a bag with diapers and liquid and whatever a parent might need In the
event that the child needed attention, Ms, Wilke was very successful In recognizing and responding
to the child's behavior.
9. I testified at the June 2000 hearing and provided the court with my recommendation that Ms, Wilke
should assume primary physical custody of her daughter,
10, I based my recommendation on the best interests of the child, Eva, My recommendation was
supported by the fact that the child's father has not provided "open access" to the mother, as he said
he would and as I recommended,
11, My judgment was that, relative to each other, so long as she stays sober, Ms, Wilke would be a
better primary caregiver for the child because she was more attuned to the child's needs and
because the father denied the child open access to her mother,
12, Between the June 2000 hearing and today's date, Ms, Wilke has continued to provide me with
evidence of her sobriety, I believe that she understands that sobriety is a life-long process, that she
has surrounded herself with people who maintain a sober lifestyle, that she has engaged herself in all
of the required recovery activities and is leading a healthier lifestyle, I have seen no evidence of a
relapse,
13, Between the June 2000 hearing and today's date, Ms, Wilke has provided me wilh evidence that the
father has continued to refuse the child open access to her mother, The father does not appear
respectful of the mother's Important and proper role and need for her involvement in the child's life,
14, Between the June 2000 hearing and today's date, I have personally observed Ms, Wilke and her
interaction wilh her daughter. I continue to find Ms, Wilke to be very attuned to and very empathetic
with the child,
15, Between the June 2000 hearing and today's date, I have seen no evidence that would alter my
recommendation that primary physical custody of Eva should be with the mother, Phyllis Wilke,