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HomeMy WebLinkAbout03-1259REBECCAS. FENSTERMACHER, : Plaintiff : : V. : : GARY C. FENSTERMACHER, : Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW IN DIVORCE (JURY TRIAL DEMANDED) 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 of other rights important to you, including the custody or visitation of your children. When the ground for the divorce is indignities or irretrievable breakdown of the marriage, you may request mardage counseling. A list of marriage counselors is available at the Office of the Prothonotary. IF YOU DO NOT FILE A CLAIM FOR ALIMONY, DIVISION OF PROPERTY, LAWYER'S FEES OR EXPENSES BEFORE A DIVORCE OR ANNULMENT IS GRANTED, YOU MAY LOSE THE RIGHT TO CLAIM ANY OF THEM. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO, OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 717-249-3166 REBECCA S. FENSTERMACHER, : Plaintiff : : V. : : GARY C. FENSTERMACHER, : Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL ACTION - LAW IN DIVORCE (JURY TRIAL DEMANDED) COMPLAINT IN DIVORCE AND NOW comes the Plaintiff, Rebecca S. Fenstermacher, by and through her attorney, Charles Rector, Esquire, and respectfully represents as follows: 1. Plaintiff is Rebecca S. Fenstermacher (SS# 188-34-6265 ), an adult individual, currently residing at 110 Nittany Drive, Mechanicsburg, Cumberland County, Pennsylvania, 17055. 2. Defendant is Gary C. Fenstermacher (SS~ 198-34-8629 ), an adult individual, currently residing at 320 N. Paxtang Avenue, Harrisburg, Dauphin County, Pennsylvania, 17111. 3. Plaintiff and Defendant have been bona fide residents of the Commonwealth of Pennsylvania for a pedod of six months (6) immediately preceding the filing of the Complaint. 4. Plaintiff and Defendant were married on March 18, 1967, in Northumberland County, Pennsylvania. 5. There have been no prior actions for divorce or for annulment between the parties. 6. The Plaintiff and Defendant are both citizens of the United States of America. Count I - Divorce 7. The allegations of Paragraphs I through 6 are incorporated herein by reference and made a part thereof. 8. Defendant has committed adultery. 9. This action is not collusive as defined by Section 3309 of the Divorce Code. WHEREFORE, Plaintiff requests your Honorable Court to enter a divorce decree pursuant to Section 3301 (a)(2) of the Divorce Code. Count II - Equitable Distribution 10. Paragraphs 1 through 9 of this Complaint are incorporated herein by reference as if set forth at length. 11. The parties have acquired, during the course of the marriage and prior to separation, property, both real and personal, which they own jointly or which was otherwise purchased so as to constitute marital property within the definition and scope of Section 3502 of the Divorce Code. WHEREFORE, Plaintiff requests your Honorable Court to enter an Order distributing the marital property owned by the parties. Count III - Spousal Support and/or Alimony Pendent Lite and Permanent Alimony 12. The allegations in Paragraph 1 through 11 are incorporated herein by reference and made a part hereof. 13. Plaintiff is unable to sustain herself during the course of this litigation. 14. Plaintiff lacks sufficient property to provide for her reasonable needs and is unable to sustain herself adequately through appropriate employment. 15. Plaintiff requests this Honorable Court to enter an award of spousal support and/or alimony pendente lite in her favor pursuant to Section 3701 of the Divorce Code. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter an award of spousal support and/or alimony pendente lite until final headng and thereupon to enter an order of alimony in her favor pursuant to Section 3701 of the Divorce Code. Count IV- Counsel Fees~ Expenses and Costs of Suit 16. The allegations of Paragraphs 1 through 15 are incorporated herein by reference and made a part hereof. 17. Plaintiff has retained an attorney to prosecute this action and has agreed to pay him a reasonable fee. Plaintiff has incurred and will incur costs and expenses in prosecuting this 18. action. 19. Plaintiff is not financially able to meet the expenses and costs of prosecuting this action or the fees to which her attorney will be entitled in this case. 20. Plaintiff requests this Honorable Court to enter an award of interim counsel fees, costs and expenses until final hearing and thereupon such additional counsel fees, costs and expenses as deemed appropriate. WHEREFORE, Plaintiff respectfully requests that, pursuant to Sections 3702 of the Divorce Code, the Court enter an Order directing Defendant to pay Plaintiff's reasonable counsel fees, costs and expenses. Count V - Intentional Tort (Intentional Transmission of Sexually Transmitted Disease) 21. Paragraphs 1 through 20 are incorporated herein by reference as if set forth in full below. 22. Defendant knew that he had been afflicted with the sexually transmitted disease, genital warts. 23. Notwithstanding his knowledge of his condition, Defendant intentionally and with reckless disregard for the safety of his wife, entered into sexual relations with Plaintiff. 24. Defendant knew, or in the exercise of reasonable care, should have known that he would cause great harm, pain and injury to Plaintiff if he were to infect her with said disease. 25. As a result of his intentional conduct as aforesaid, the Defendant caused the injuries and damages to Plaintiff as are more fully mentioned above. WHEREFORE, Plaintiff demands judgment against the Defendant in an amount in excess of $25,000.00, plus interest, costs and delay damages. Count VI - Ne!11i~lence (Nec~liaent Transmission of Sexuelly Transmitted Disease) 26. Paragraphs I through 25 are incorporated herein by reference as if set forth in full below. 27. Defendant knew or should have known that he had been or may have been afflicted with the sexually transmitted disease, genital warts. 28. At all relevant times hereto, Defendant had a duty, by reason of his marital, social, fiduciary, and sexual relationship with Plaintiff, to ascertain whether he was in fact afflicted with the said sexually transmitted disease. 29. Defendant had a further duty to inform the Plaintiff of his condition so that Plaintiff would not contract the said disease and suffer harm. 30. Notwithstanding the existence of and in breach of these duties as aforesaid, Defendant negligently and with a careless disregard for the safety of his wife, entered into sexual relations with her. 31. Defendant knew, or in the exercise of reasonable care, should have known that he would cause great harm, pain and injury to Plaintiff if he were to infect her with said disease. 32. The Defendant did carelessly, recklessly and negligently continue in a sexual relationship with his wife, the Plaintiff, and directly caused the injuries and damages to Plaintiff as are more fully mentioned above. WHEREFORE, Plaintiff demands judgment against the Defendant in an amount in excess of $25,000.00, plus interest, costs and delay damages. Count VII - Intentional Tort (Battery) 33. Paragraphs I through 32 are incorporated herein by reference as if set forth in full below. The Defendant intentionally touched and had harmful sexual contact with Plaintiff. 35. 36. The Plaintiff did not consent to sexual contact by one with genital warts. Any consent purportedly given by Plaintiff is an ineffective consent and was fraudulently obtained by virtue of Defendant's misrepresentation of his health condition. 37. As a direct result of Defendant's battery upon Plaintiff, she has suffered the injudes and damages as are more fully set forth above. WHEREFORE, Plaintiff demands judgment against the Defendant in an amount in excess of $25,000.00, plus interest, costs and delay in damages. Count VIII - Intentional Tort (Intentional Infliction of Emotional Distress) 38. Paragraphs 1 through 37 are incorporated herein by reference as if set forth in full below. 39. The conduct of Defendant, in committing adultery, having sexual relationships outside the marriage, and then infecting the Plaintiff with genital warts was outrageous and wanton and was intended to cause severe emotional distress to Plaintiff. 40. Such conduct by Defendant did cause emotional distress to the Plaintiff. 41. Plaintiff suffered severe emotional distress as set forth above, and as a result has been engaged in ongoing psychological and emotional counseling, to her great detriment and loss, financial and otherwise. WHEREFORE, Plaintiff demands judgment against the Defendant in an amount in excess of $25,000.00, plus interest, costs and delay in damages. Count IX- Negligence (Ne(~liqent Infliction of Emotional Distress) 42. Paragraphs I through 41 are incorporated herein by reference as if set forth in full below. 43. Defendant negligently, carelessly and recklessly had a continuing sexual relationships outside the marriage, without taking adequate precautions against contracting a venereal disease. 44. Defendant then negligently, carelessly and recklessly had a continuing sexual relationship with the Plaintiff, and inflicted upon the Plaintiff the disease of genital warts. 45. The Defendant had a duty to protect Plaintiff, his wife, and to not inflict her with a dangerous and harmful disease, which duty he ignored and breached. 46. Such conduct by Defendant did result in serious physical and emotional injury to the Plaintiff, as is more fully described above. WHEREFORE, Plaintiff demands judgment against the Defendant in an amount in excess of $25,000.00, plus interest, costs and delay in damages. Count X - Punitive Dama.qe-~ 47. Paragraphs I through 46 are incorporated herein by reference as if set forth in full below. 48. The conduct of the Defendant was so outrageous, malicious, wanton, vile, and secretive, that same justifies an award of punitive damages. WHEREFORE, Plaintiff demands judgment against the Defendant in an amount in excess of $25,000.00, plus interest, costs and delay in damages. Date: 3//00/03 RESPECTFULLY SUBMITTED, Cha~-,~s Rector?Es~i'uire - 1104 Fernwoo~ Avenue, Ste. 203 Camp Hill, PA' 17011 (717) 761-8101 I verify that the statements made herein 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 unswom falsification to authorities. Rebecca S. Fenstermacher REBECCA S. FENSTERMACHER, PlaintifffPetitioner VS. GARY C. FENSTERMACHER, Defendant/Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - DIVORCE NO. 2003-1259 CIVIL TERM IN DIVORCE Pacses# 046105357 ORDER OF COURT AND NOW, this 26th day of March, 2003, upon consideration of the attached Petition for Alimony Pendente Lite and/or counsel fees, it is hereby directed that the parties and their respectia, e counsel appear before R.J. Shadday on April 17, 2003 at 10:30 A.M for a conference, at 13 N. Hanover St., Carlisle, PA 17013, after which the conference officer may recommend that an Order for Alimony Pendente Lite be entered. YOU are further ordered to bring to the conference: (1) a true copy of your most recent Federal Income Tax Return, including W-2's as filed (2) your pay stubs for the preceding six (6) months (3) the Income and Expense Statement attached to this order, completed as required by Rule 1910.11© (4) verification of child care expenses (5) proof of medical coverage which you may have, or may have available to you IF you fail to appear for the conference or bring the required documents, the Court may issue a warrant for your arrest. Mail copies on Petitioner 3-26-03 to: < Respondent Charles Rector, Esquire BY THE COURT, George E. Hoffer, President Judge Date March of Order: 26, 2003 - a~,, ~ ~ J' had YOU HAVE THE RIGHT TO A LAWYER, WHO MAY ATTEND THE CONFERENCE AND REPRESENT YOU. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORI} ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU MAY GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVE. CARLISLE, PENNSYLVANIA 17013 (717) 249-3166 REBECCA S. FENSTERMACHER, Plaintiff GARY C. FENSTERMACHER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ' NO. 03-1259 CIVIL ACTION - LAW IN DIVORCE (JURY TRIAL DEMANDED) ~4FFIDA FIT OF SER VICE I, Matthew Hunt, Private Investigator, hereby certify that I personally served the Complaint for Divorce in the above-referenced matter to Gary C. Fenstermacher, on /~r-r'~ o~ ,2003, at approximately 0~,'~.5" o'clock./~.m. Matthew Hunt REBECCA S. FENSTERMACHER, Plaintiff V. GARY C. FENSTERMACHER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-1259 CIVIL TERM CIVIL ACTION - LAW IN DIVORCE PRAECIPE TO WITHDRAW TO THE PROTHONOTARY: Please withdraw Plaintiff's Complaint for Divorce and all related claims filed on March 21,2003, in above-captioned matter. RESPECTFULLY SUBMI~ a~le's Recto/, I~qui~e ~ 1104 Fernwodd A~;enue, Ste. 203 Camp Hill, PA 17011-6912 (717) 761-8101 Attorney for Plaintiff Date: In the Court of Common Pleas of CUMBERLAND County, Pennsylvania DOMESTIC RELATIONS SECTION REBECCA S. FENSTERMACHER ) Plaintiff ) vs. ) GARY C. FENSTERMACHER ) Defendant ) Docket Number PACSES Case Number Other State ID Number 03-1259 CIVIL 046105357 ORDER AND NOW, to wit on this 15TH DAY OF APRIL, 2003 ~ IS HEREBY ORDERED that the. C) Complaim for Support or C) Petition to Modify or (~) Other PETITION FOR APL filed on matter is dismissed without pr~udice due to: THE PETITIONER WITHDRAWING HER REQUEST MARCH 25, 2003 in the above captioned FOR ALIMONY PENDENTE LITE. C) The Complaint or Petition may be reinstated upon written application of the plaintiff petitioner. DRO: RJ Shadday xc: plaintiff de fendan t Charles Rector, Esquire Carol Lindsay, Esquire BY THE COURT: Service Type Form OE-506 Worker ID 21205