HomeMy WebLinkAbout00-07903
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Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Nancy A. Baker,
VS.
Civil Division
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Elwood F. Baker,
No. 00-7903 Civil
Defendant
ORDER OF COURT
ANDNOW'&;'~Y,,!~~003' m~'_of"'_ ,otitioo,
~~ Esquire, /a Esquire andl/f1.k. /~~SqUire are
appointed arbitrators the above-captioned action as prayed for.
BY THE COURT:
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FflEC~Orl:rcE
orn;; FO{').Tf.I(\~C'\TU1Y
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03 JAN(4 Pi'! I: 05
CUM8~HLPND COUNTY
PENNSYLVANIA
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Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Nancy A. Baker,
vs.
Civil Division
Elwood F. Baker,
No. 00-7903 Civil
Defendant
PETITION FOR APPOINTMENT OF ARBITRATORS
The Law Offices of Paul Bradford Orr, counsel for the plaintiff in the above action, respectfully
represents that:
1. The above-captioned action is at issue.
2. The claim of the plaintiff and defendant are within the limits set for arbitration pursuant to
Local Rule 1301-1.
3. The following attomey is interested in the case as counselor are otherwise disqualified to sit
as arbitrators: Herbert Corky Goldstein, Esquire; Gregory L. Cutler, Esquire; and Paul
Bradford Orr, Esquire.
WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom
the case shall be submitted.
Respectfully submitted,
Dated: / J:J 3103
v
Gre utler, Esquire
Attorney or Plaintiff
50 East High Street
Carlisle, PA 17013
Telephone: (717) 258-8558
Supreme Court J.D. No. 73471
By:
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Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Nancy A. Baker,
vs.
Civil Division
Elwood F. Baker,
No. 00-7903 Civil
Defendant
CERTlFI~TE OF SERVICE
I hereby certify that on this d") day of ~~, 2003, I mailed a true
copy of the foregoing Petition for Appointment of Arbitrators to i e following person at the
following address by U.S. Mail, Certified mail, postage prepaid, return receipt requested, delivered
to addressee only:
Herbert Corky Goldstein, Esquire
204 State Street
P. O. Box 10463
Harrisburg, P A 17105-0363
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NANCY A. BAKER,
Plaintiff
v.
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL DIVISION
: No. Ofy 1965 6\ )',1
ELWOOD F. BAKER,
Defendant
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set
forth in the following pages, you must take action within twenty (20) days after this Complaint
and Notice are served, by entering a written appearance personally or by attorney and filing in
writing with the Court your defenses or objections to the claims set forth against you. You are
warned that if you fail to do so the case may proceed without you and a judgment may be entered
against you by the Court without further notice for any money claimed in the Complaint or for
any other claim or relief requested by the Plaintiff. You may lose money or property or other
rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HA VB 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 Ave.
Carlisle, PA 17013
1-800-990-9180
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NANCY A. BAKER,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: CIVIL DIVISION
: No. {).(J. 7963 ~ -r;-U"-'
ELWOOD F. BAKER,
Defendant
COMPLAINT
A. Breach of Contract for failure to make 24 monthlv payments
1. Plaintiff is Nancy A. Baker, an adult individual residing at 906 Petersburg Road,
Carlisle Pennsylvania, 17013.
2. Defendant is Elwood F. Baker, an adult individual believed to be residing at 101
South 2nd Street, Suite 814, Harrisburg, PA 17101.
3. On July 13,1994, plaintiff and defendant entered into an agreement in writing,
entitled "SETTLEMENT AGREEMENT," a copy of which is attached as "Exhibit A."
4. This written agreement constituted a valid and binding contract.
5. Plaintiff has complied with all of her contractual obligations under the terms of
this Settlement Agreement.
6. The end of Page 4 of the Settlement Agreement under the subtitle "MONETARY
SETTLEMENT" running over to page 5 provides as follows:
"Husband [i.e. Defendant] shall pay Wife [i.e., Plaintiff], in consideration
of Wife's full release of any claims in husband's pension, which release will be
more fully set below in this Agreement, the sum of Thirty Thousand ($30,000)
dollars, to be paid in the amount of Five Hundred dollars ($500) per month each
and every month until the sum of $30,000 has been paid to Wife. These
payments are to commence on the 15th of the first full month following the entry
of the divorce decree between Husband and Wife and are to he paid on the 15th of
each and every month thereafter. . ."
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7. The entry of divorce decree in this case occurred on July 19, 1994. A copy of the
divorce decree is attached as Exhibit B.
8. In accordance with the Agreement, the first payment was due on August 15, 1994
and the last payment was due on July 15,1999.
9. Defendant made payments from August 15, 1994 to July 15, 1997, for a total of
$18,000. Plaintiff has not received any other payments from Defendant.
10. Defendant missed a total of24 payments covering the time period of August
1997 to July 1999 for a total of$12,000 in missing payments.
11. Defendant's failure to make these payments constituted a material breach of his
contractual duties under the Settlement Agreement.
12. Plaintiff has suffered a pecuniary loss in excess of $12,000 resulting from
defendant's breach.
13. Page 4 of the Settlement Agreement under the subtitle ATTORNEYS' FEES FOR
ENFORCEMENT provides as follows:
"[T] he breaching party will pay all attorneys' fees, court costs and
expenses (including interest and travel costs if applicable) which
are incurred by the other party in enforcing this Agreement, whether
enforcement is ultimately achieved by litigation or by amicable
resolution."
14. Pursuant to 23 Pa. C.S.A. S 3104 (c) a provision of an agreement between the
parties regarding the disposition of counsel fees or expenses shall not be subject to modification
by the court.
15. Pursuant of23 Pa. C.S.A. S 3502 (e) the Court has broad powers to deal with
failure to comply with the terms of an agreement entered into between the parties. Specifically,
the Court can award interest on unpaid installments, and award counsel fees and costs.
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16. Page 4 of the Settlement Agreement under the subtitle "REMEDIES AND
SANCTIONS" provides as follows:
"In addition to such other remedies and sanctions available under
applicable law, the parties may utilize any remedy or sanction set forth in
the Permsylvania Divorce Code, as amended, to enforce any term of this
Agreement as though it had been an order of Court."
17. Page 4 of the Settlement Agreement under the subtitle "ADDRESS OF
PARTIES" provides as follows:
"As long as any obligations remain to be performed pursuant to the
provisions of this Agreement, each party shall have the affirmative
obligation to keep the other informed of his or her residence address, and
shall promptly notifY the other in writing of any change of address by
giving the new residence address."
18. Defendant has failed to inform Plaintiff of his whereabouts. In fact, the Defendant
has taken steps to conceal his whereabouts.
WHEREFORE, plaintiff demands damages judgment in excess of $16,500, which
amount includes actual damages, interest, and attorneys fees plus all other court costs and
expenses that this Court deems appropriate
THE LAW OFFICES OF PAUL BRADFORD ORR
DATE:
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BY:
O'^77 {t:;tL
Gregory 1. Cutler, Esquire
Attorney for Plaintiff
Supreme Court ID # 73471
50 East High Street
Carlisle, P A 17013
(717) 258-8558
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VERIFICATION
I verifY that the statements made in the foregoing are true and correct. I understand that
false statements herein are made subject to the penalties of 18 Pa.C.S. ~ 4904, relating to unsworn
falsifications to authorities.
Dated:
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IN TaE COURT OF COMMON PLEAS OF THE 59TH JUDICIAL DISTRICT OF PENNSYLVANIA
COUNTY BRANCH - CAMERON
ZJ,,<lood t. Baker, ) Civil Accioo. - Law
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Pl.3.io.ciff ) Case No. 94-2913
) L'l DIVORCE
va. )
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Nancy A. Balter, )
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SEXILEMElfI AGREEliD!'!
TH.IS AGR!EMEllT, l14de t:his J.:Jt/i: day of ~Lt.< , 1994 by
and becveel1 Nancy llaker (here1~t:er referred. to &a Viie aa.d E1YOOji
:Baker (hereinafter referred to as wRusbatldW),
Vitaes$8t:h:
\oc1iER!AS, the p4rt:1es heret:o are B:usband and Vtie, baving been
Udully joined. in Illa.rriage 011 AprU 19, 1969 10. E:ollidaysburg,
l'ell.ll.Sy1"Yallia..
WHEREAS, diverse unhappy cl1fferellCes, disputes and difficulties
l1ave a.risen betveen the pat:ies and ic is t:hei-;- int:ent:ioa. to instituce
d1vo7:ce proeeed.iIl&s, and the patties hereto a...-e desirous of settling .
cO\llPletely and fin4lly t;.'te economic and other rights and obli.gs.c101lS
bet>reen each ot:her incl.ucl1I1&, vithout: J.iJIl1tat:ioo.: che ownership and
equ:lt:able diat:ributlol1 of lila.rltal propereyj the future support aMlor
. Il'3-1ncell4D.ce of either of thelIl; and in general, a.ny al1d all ot:her claillls
Ilnd possible cla1l:Is by oae a.gaillSt the ot:her or ag.u.c.st: their respective
.estates.
NOli, I"llt:RU0lU:, Vife a.nd Husband, each inceoding to be legally
bound hereby, agree ~ follows:
GENZ.'U.L
"'G~ NOT A DA.'l. TO DIVORCE PROCEEDINGS
This Agreement: shall ooc be considered Co affect: or ba.r t:he
right: or '\life or lrusbanci Co a divorce. The parties 1nt:end to secure a
llIueual coasent, no-fault divorce purSUdnt: to the provisiollS of Sectoion
20l(c) of the PCtlJ:!lly1v8.lda D1.vorce Code of 1980, as alllel1ded.
. EffECT 01' DIVORCE DECREE
l'his Agreement shall contlo.ue in full force and eU4<:t 4fter
,.g,ucnJ:ime as a. f1n.oJ..'d4c::ee ill divorce lIlay be entered <lien respect to che
C;;~~e&.
E^hi~ic A
PLAINTIFF"
EXHIBIT
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~Ii~. 1:0 llZ INCOlU'ORAn:D IN DIVORCE DECaEE
Tlle t.~.O!'l,ot' tllis Agreemellt shall be ill<:o~orated into any.
~~~:E"';~ cl.ec;.~ee"hich .=ay::~~ .entered with respect to the partiell, ~
(lurt of CO<IlIlloc. P 'of =y ~e shall. retaic.
con ad1ct10c. over ties and tb.e: s~r of the
"~reemec.t for the purpose of ec.foreelllent of any 0 the provJ.u.oCB ~IIereof.
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DAn OF E:i:ECtrrION
The -date of execlltioll- or -execlltion date- of this agreemell.t
shall be defill.ed as the Mte upoll ..hieh it is execL1ted by the ;>artiu if
they have e&ch executed the ~eelllellt 011 the ume'date. Othervise, the
"d.4te oJ: execution" or -execution date~ of chis Agreelllent sball be
def1.lled u the date of execllt:l.on by the party last e:;:eeut:l.ng the
Ag1::eemellt.
~~mu,sts
E:;:c:ept u o~se provided in this J,gre~ent:...
a) ,,~h pgty..here"by ..4!l'ia,bllol,.uteJ.yalUl. unC:9c.:iiJ;19aally reJ.~es-
,;,."I1liJ:on~~M.~c;~rge~. th~ '. Other and.. .th.e.e:st,1te"of ..the... otlietig.
~~"pg;P9.~I.frQGl.ally.,and. all rigb.csa.nd..obJ4g~tiomL:wh1ch""
~:her. ~'y..~~;,.oJ:...a.e..an,....tillle"hereafter..ha,,4i;:fCr,..p&St~LP~~~e.lle,
'Or"fu~ support or =illteMllCe, a.l.imOc.y pelldente lice,
alimony, equitable d1stributioll, counsel. feea, costs, e:penses,
1'.'1,;!..3H1J"~:.c9~kr right. or"obl.1gg.t~oll, ecollOlllic;Q:!;' 91:'l:Ie1;W;!.S!h
~~ll;1!!i~'9\l.J:...of..the.lll4ritaJ. re.l&tiCl~M.Jl....l?r..9.!;he..-.r:I.S<a~
inc1.t1ding ...u. tights and bellef1ts under the PennsylvaIrla Divorce
'Code of 1.980, i.ts su1'P1e.ments and. amendments, as vel.1. ~-=der
=1' other 1.&... of allY other jurisdiction..
b) Zach party hereby abso~utely and tmCoo.d.itioo.aJ.ly rel.eas... 4I1d .
forever d1scha.rgea the other a.nd hie or aer heir.., e:recL1tors,
adlll1nistracors, 4IIS1&116, property a.ad e..tate from. :my .and al.l
rights, claus, delll4llds or obligat~o.s ans10.g out of or by
virtue of the marital. rela.t10c.ship:of the parcies or oehet"ldse,
whether llOV e.xiscil1g or hereafe<lr-arisill8. The above release
sh4ll be effective rei:~ess of wether such c1.aill1ll ans.. out
of "y for:oer or future acta, contract.., engagemellts or
l.iab:l.lltiea of che other or by _1' of ndo'" s or widower's
rights, fam.11y exe.mpcioo. or simila.r U1.o""nce, or under the ..
illteseate 1a", or the ri811t to t4)::e aga.io.at the spouse's v1.U>or
the tight co tre&t a l.1fet1nle conveyauce by the other oss
testamenta:y, or all othe. r1ght of a surviving spouse to
particip&te io. a deceased spouse's escate, ..hether arising under
the lavs of PeD.!llly1.vania.; &Ily 5taee, Commonwealth or cerritory
of, the C"nit:ed St41:e8, or any ocher counery. The parties each
lI<t.ive and release =y sad all right eo receive insurance
pro<:eeds at the death. of the other, ..mether as name.d beneficiary
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or oc:!ll,rv:l.se, 4S ""ll .... 8.o.y right: eo rece!.ve a.ny ~e8aey,
bequest or residuary "l'rot1.oa. of the est..c:e of thAl' other utld..r
his or !ler T,l:Ul (if e::ecuc:ed prior eo the e;l:ecutioD. .u.te
hereof), or to ~ct :lB per$oaal. representat:i va of t:he estat:e of
the other. .
" c) Excepc: for alty cause of acc:ioo. for divorce wIU.ch either p...rt,..
.....,.. have or cla1Jlz to ha.ve. each. party gives t:o the other by the
e::ec::ut1011 of t:his Agreemeo.1: ao. a.ooolut:e and unc:otlditio=1
reluse alld discllarge frOlll all causes of acUoD., cla,1IlI4 , right:s
or demands wDat:sQever, ill lAv 0"1:' itt equit:y. ....hich eit:ber pa.rt:y
ever had or now has qainst: the other.
IlAIVER OIUIOD,I1ICAUON 1:0 BE IN "IllUTING
No modificatioo. or _iver of any of ehe teris hereof sha.1l. be
valid unleu in vrie1ng a.nd s1.gued by boc:h paniea and a.o waiver of &1.y
breach hereof or def...ul.t: hereunder shall be deemed a "Waiver of asJ.y
=ooequeut defa.ult of the sallle or s1m.i1a.r tl4ture.
UV OF ?E:tNSYLV'ANL!.. APPLICAN.E
!his agreement ahall be COl1.81:=ued iD. accordance ~1:h the lAvs of
eh.. CCICllI:>Ot1Ilealth of ?ena.sylvan1a.
ACR:eElIDfl' BL'iDING ON liZI..~
Except a.s oc:herose .....y be provided, this Agreelllel1t sha.lJ:-'se
bi~ aDd shall 1twr~ to the be~ie of the part:1ell o.ereeo and eheir
resp~tive heirs, e::ecu1:ors, adlll.ittistrators, ~cessor.. and. assigl1$.
_ INTEGR.AXION'
!his ~greelllellt. cOlltitutes the entire understanding of the
"";-1:ies .4%ld~r:1ecl~~,~ ~a.ll prior agreemel1l;$,uLd l1<:sot1.aUCJ:18
...he.......o;a the:ll. !here .~re no ::epresentat10llS or warraD.t.1.es other th4n
those expressly Get forth, herein.
OTIlEF. lXlCOMENTA:t'ION"
!lithin fifteen (15) day,;: .uter demand therefor. the part:ies w1.ll
execnte any and 411 written instruments, sssigamen1:s, re~eases,
sat1sf4ctioa.s, deeds, l1Ote.l: or such other writings as may be rea.sonabl..,
necessar,r or des1r4ble for the proper effectuat1oa. of this Agreemen1:."
."~,,NO.'o'AIVER OF DUAUL1:
!his Agreement sM11 rema.1.n in full force and effect un1.es8 attd
until eermil14ted under and pursuac.t to the 1:e::.'" of rh;l.s Agreement_ .the
fa.ilu;",e" o.Leither.J,a1"t:Y to 1o.618t I1pOI1 strict performa!'-Cl!. of any c;?c~~
,"p:r;ovi:'-sioos. of this Atreemec.tshall :!.uno "\laY affect. eh.. right o~ such -~
-pai-W hereafter to enforce tlle same, nor shall th~ w..a1"..er: of-anY' breach~
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~J:!{ ..l4l-y',1!ra'Q.l!.1a~Jll!reo~.be catl6trued as ... wabero.f4ny s;).bllequeut".
c1idAlOlt~a{ the_S~lljL.lll;"s1m1l.ar Il&tuo:e. 0.0.1:' .shal.l .1.1:-~ Co.lllltrued .Uc4'
~"yo;~g~.~):.;-1c;t.~!:~rfj~~neeaf ~"o.ther o.bUg&t1oo.s_here.1.n- ~d'
ADDRESS OF :!?AR.U::S
As lang as any ab11ga.t1o.nG remain Co. be perfa:r:med pnrsuant to.
the previsiens ef this Agree:m.ent. ~~ch party ah~ 11 hAv,", the aff1raI4t:!. ve
o.bli2"l:1an t-" "'''''p ,.h.. ather info.rmed af his 0."<' "h..,.. res:1dence address,
~,,' 1 prOlll!ltl'l' netify the ather in =1ting af any cha~e o.f address
&r ~ivitl.2 the neY residence address. .
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;'i.._ENJ;'Q~~ _QF~}.I..tl1oNY,nO:<lISIQljS
A.1.l af the ~1ll1o.ny previ.s1o.ll6 cantained in this Agreealent ma.y be
ea.farc:eab1e by a.l1 actian ill suppert ill accerdance nt:h Pennsylvania. Rules
of CiYil. l'1:=edure 191Q.1 et ~q.
...ll.EMEDIES-AND SA.."'icnONS
In.4dd.itiall to-_lluch..othe;" remedies &tld sanct1ellS &Va,:1.la.1l1e .under:.
a.?pl,.1.e,,:b:lcla~,:"S~":"~r:t:!~$1I1aY ut:ill<:e ar;:y' ~emed.l 0.1:" $a~C:t,:l.eruet.;f9.~:lk
,;~:1.e:~,t:he.>hD/1o$Y1VaB,"lJiyo;ce,Code. ,<1$ alIlended, to. eo.f~rc,'L~!1'y.,_tl!~ Q.f..., th.1,o!'_
LA:ltr~J:ltasthoughc;1t~h41Lbeen..an o.rde1:" o.,f CQ9rt.c.
A!TORNtYS' ~ =s FOR ENFORCE:MEx.r '
.!n the evellt tb.o.c either party breaches any prevision of this
Agreement and the ether party retai.::w couaaeJ. to. &ss1st in ea.fot"C1n8 the
te.rm.s thereof, .;~Jlrell,c:h1ng party ..rill paya1.l atte):"l1eys' fee!!.,.co~t'V
s,~~F:s~~!o~nselL(1!l!:lll.dJ.ll~U.;l.teJ:e\>t anq. tnyel. c(j"tllif, ~ppl1.<;~lI.le}'
c..M yP."ue...1ncur;-ed-bytPe.other ,p-!;:r;y:in enfo.rc~..1:.h:1ILA8~llllletl~. .
c..~1;~~~ll-fCl~1:-:~Jic"-bt:l.mate:Ly. ~.....e4by:L1t:1g~:1!,~er~~..!l","'~E~.
i,f.!r"e!H.t;l,o~~,:" !t is the specific agr:ement and. intent of the p4rtiea that: ,
~,h,.~!:l1j.C8 a~..1Gee:&~9~~ ~ty 1li1allbea.r theob1.1g4tion o.f Diy and. ~
I!iql!l;~!,c~1'e~!!L~,j;Ql.llael~f..d', 'il;eurre.d by ,the: nol1~J:"e&ch1ug P4;S.Y~1.;J..,~
,.prctect1,~,!L~ ,~J:lf<lrciog.,.his o.rherrightG undert1U.s..Agreelll4n1:,
HEADINGS NOT ?A..fl..T OF ACREEMENT
A:Irr headings preceding the text o.f the several pa::agraphs and
snbparagraphs hereof are 1nseree.d sole:Ly fo.r Co.nVelUence af referenee and
shal.1 nee eOll8itute a pAre of 1:h.is Agreemene nor shall ehey affect"1Cs
:!leaning, construceion o.r effect:.
PROPERTY
MONEl'"A.fl..Y SErTLEJ1E:N"r
. gus.be.nd shall pay Wife, :in cons1derat1o.n",~ji'it:~'.8.fu.JJ,.c..reJ,~li.e':"
.c9i~l1-.I cl.~~_JA:"l;!!~.~":n4_',s.peasion,;"';'Yhich'=elease will be more fully set
farth be1ew :l.n elUs Agreement: .,t~_sUlll ef Th:l.rt:y Th9usand ($30,000) ,.
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di~,1,~~,tP,:bl:Lp.Uli.,11l toeil<llQUl:\t 9f.1ve f!\!.lld.ed ci,.J.la..1i 'S500),j>eZ:'-'
,JIl,pn1:a eaca'and ",ve:y lIlOnc1u.1nt;1l. ch", s<mof $30~aOO has,beeu 'l',,-:!.d C",_
,Jlui7~'l'he",,-p:a:jiiienisa.r"; Co COllllltence on the 15elt ';.f"tbe '.fLrse full lIIOc.th
fol.l.ow:l.~ the' en1::Y of the divorce decree bet1reen 3"us~d and Wife a.nd
are to be pa!.d on che l.5cl1 of each &!ld eve:y lllOc.tn thereafter. These
payments are not contingent 011 "\life'.. c.ot remar=ying or noc cohabie:ae:ing
andthes,epaymelle:s are to.concinue reg~rdl.ess of "bet.he: Wife at: .SO<Ile..
:fm:tire"t:~ cohabit.l!..u-s...Y1th a..Jltelllbex.: ,of the oi>l'<>';,1te..:sc.;:..or..J:,=..-ries...
_O-,...._'^_._-'-_:..._._.~'_.....H___~ . -
Husband uso ~rees thae: any moneys received frO!lt Mark Baker
represene:~ p...ymene: on a 1.04l1 frocn the parties to &r1: <lake: v:l.il be
paid by Husband as foUolIs:
1.) Al.l payments are e:o be paid to Toby Bake::- unt:ll roby 3aker
has received the SUIll of $looO;
2) Me:er Toby llaker has received t:he suni of $lOOO, Husband
4grees to pay half of any and aD. remaining payme<;ts to Wile.
. \l:1#e.~~~s tha.~. c:hepayment of, $500 ~r :DAEol:.hinco1lB1derat1on. r
~f ,W:ife~ii"1:~e".LQ,f )~right:s in Ruaba:d' s peil$1Pll. are to.be=ed....a.&_
C~:!:.i'?91:'li:4~~1;<r.t, 4UC~.alDOUll.ts.1l!41:.beded.ucted..as~0ll.y by E:1,U!l:lud. ~
'5'th.e~..~J!lQW1ts...~<l,..~W1fe. ,by. Husb<=i. a;;:e noc tp be.J:lee=ed.-Or.col1B1der.e.L..
,,"~,~im9nY.' .' ...-. ..' - .
PERSONAL PROPE:!crY
"'ife hereby tr4l1Sfe::s to Husband all of her right, tiCle and.
interest in 4lld to e:hose itema of tangibl", per$onal. property which '!ore
noe: pre$ec.tly located ...t the marital residence, in<:luding che foiloll1.ng:
1.) Itellls of male jeve1:y
2) Canon AE-l camar4 and camera equiplllenc.
li'if", also hereby transfers to Husbsnd all of her right, title
and interest in and. to tools located aC the marica1. :esid",nce, which Wife
OLgrees co seore 4C the "",rie:al res1dence_ ..tie furch",r agrees to
surrender said tools to Husband upon demand.
, The OLPove-t>"'tltioned items, a1.0"8 v1~h a.l.l-Pe.::liQ~. P,;:"i>~n:y,---l:_
~'-'<;Eos:~;!!=J,.:r,.1Ql::;!.;~A_c~~~~;uarita1.::~.~,1.denc..a.nd. in 1:heP9,!,,!,~ssiot;,,;,c
~sband",..$Mll, co",u:1tutethe .soleall4 exclusive. proper.cy~ of IHusband.",.
- ~. --<--- --
Husband hereby e:rao.sfers to . "'ife a1.l. of his right; citle and
interest: in and to those items of ta~ible personal propercy ~hich are
located at: the marical residence, including t:he follo'ling: '
1) Furuiture
2) . Appliances
3) Anciques
4) Sa!. vadore Da1.i prine:
5) Icem" of fema1.e jeve.l.ry.
rage 5 of 9
.
The abov~a.t10a.ed it:ems, .dong ldt:h UJ. ot:b.er perso=!.
property of =1 tlat:ure locet:ed 41: 1:he lIl4r1.t:u residence, <<>:cepe .for t:he
previously meutioned'cool.$, sb.all COD.SCieuee the sole end exclusive
properey of ~1fe.
Eacb. of !:he ?a-rties hereby &JlecificaJ.ly releases alld _1ves any
cla:1lli$ wh.ich he or she llIay have v.!.t:h respect: t:o t:hoae ieems of ~o=!.
property hereby t:-raJ18fered to the other.
R!.!.L !Sun:
Huaband shall mAke execute and deliver all documents in. t:he
uaua.l for: t:ransfering 1:0 Ilife 4ll of hia rights, 1:1tle and interest in
and to t:he real estate knOWll. as 900 ?etersburg Road, Carlisle.
l'ennsyl.....n.1a..
The said convey=e Gh&ll be free of 4ll J.iens and enc=brauces
e%Cept: t:he liea. of the existing IaOrtgqe and shall be under and subjece
eo tmy cove=ts &ad rutrictiolW of record: SUd cOllvey=e sball
iuclnded prepaid re4l asUte taxes a.lld &1T i<u>Urauce policies covering
!:be real. estate. or pro<:ee4s f= stICh poJ.1.cie's.
!l1:b.ongh Husband shall. tratulfel: all inte1:eat in t:b.e l:ea1. eSLate
of t:he above-mentioaed premises t:o Wife, Iiusba.nd agl:ees to leave his callie
on cl1e mo1:e:ase of $aid prem1s.<$ uutll sach ti:le as the mottgage is p4id
:!-n f\1l.l ,or 1:he property Ls sold. ',Il1f~dlerebJ' ~~ant:~s, to ,;;nd-:ul'17....
.,;~l1and,~'1;I;" 'bpJ.d !WI ba,nless.for an1'..~,>J,i..~(\..)'1lte..t;!Jcltle1n .
ii1!SSl;'~'l'r'e: v1tli~i't~:;:;g' of thl:;. iO~-:tgage e.xis~1118~:~~aat_:t;hol.lj"e~1..
\?~A"'.2't-~J
The docllllleuts couvey1ng t:itle to t:he real estat;e sbaJ.l. be
exeCI1t:ed by Husb4nd and delivered t;o .ife Oil or before t:he dat:e of
execut:ioc; of this Agreement.
llO'tOR VEHICLES
1. "\life shall t:rallSfer to liuabaud all of her -::1ght, t:itle and
iut:erest iu and to 11 !oyou Coroll. aU1:OIllOb,S.le.
2. Husband shall t:r4Il8fer to "\life 4ll of his right;, title and
iuterest in and to 11 1991 Toyota Ca:ry and . 1966 Chevelle.
SEP ARATI: ASSETS
A. Release. "Except: a$ otnerv.ise proVided 1" t:his Agreement, the
part;ies hereby agree that &8 to each of their separate assets,
a8 t:hat tem is defined herein, the party IlOt haVing t:1t:le to or
possession of uy particular separate asset hereby vaives,
releaSea. reliuquishes and forever aMndons any and al.1 claim
t:here1'l, and 8.cJ;"o.,ledgell that b.erea.ft:er t:he pa.ny bav1,ns t:1tle
t:o or possessioa of a sep.a.=&te asset 18 t:he sole and exclusiTe
OVtler t:hereof.
?age 6 of 9
------- -;
.
. .
B. Defin1.tion: The te= "separate 468et- is defined for purpoaes
of thia Al;reement 4S designaUug and a.saet of =y kiwi (whether
real, percooal., miJ:ed, l:<1ll&ibl.e or iu.l:Lugible, ic.c:lud.1~ s~~k
al1d futClre rights to lStoC~) ."hj,ch is presently titled cl.ther in
the sole na...e of a party hereto or jo1ntly >deh. one of the
part1<>a hereto and a third party or parties. The term also
lncl.udes =y untitled &Sset .hich 1s presently 1n the sole
pos.se.ssion of one of the part1es hereto.
C. Indema1!1catiol1astoer.>e.l18es: The part1es agree to .indell1nify
and hold 000 another harll1less frOlll any liability, cost or
expeQ.Ce, 1n<::lU<liag a.etorIleyc' fees and .interest, Wich may be in
the future ineurred vith respect to their separate 4ssets ...s
defined here1n.
"J!'" l...~BENErI'!S
"'\IUe....A.tl.d.. Rl.IL~.T!ll.hel:'e.b:r .sp<<1fically release awl. 1rd ve. any lUlll.,.;
.!J.J.":~ute~1:(~,.orrt;hl: l:~she or ~ =y ~Ye to ~~y~ a11.f
;~~tJ?euef1.ta' (1""'nqitl8,.~~iol1 or pl:'Of1t-aha.:d.t18,"""""i"~l:or_"
i:t~ .a1!"',' ~";belle.fltL.qLtbe ot:hel;:_PA~ T!le parties fu:rt:her "-
a<:1::nottledge a:<1d agree that they shall =ecute' =., docamentll that JU.Y be
:required frOCll tlllle to time to accoalPlish the puxp08es of this Paragra.ph.
A7r.ER-ACqUIlU:O PROP:;:ary
Each of the parties sMll hereafter oVll and enjcy, independently
of any clailll or :1.&ot of the other, all property a.cquil:'ed by h.i.at or her
&feer ehe execlltion of eb.U Agreemea.t, wieh. ft1l.1. power in l:Wa or h.!:r to
dispose of elle S4lll<: AS. ehough. he or she were utllll4=1ed.
EXISTING A.'lD FtmlRE OBLIGAl'IONS
!lusband 4Ild Wife a...voO apec1fic4l1.y ...sroOed ehac the debts listed
below rill be pai.i itS follo.....:
1) Husb4.lld agrees to pay ill full. any charges prev:iot1s1y
1l:lcurred or itlCu-cred in the future. on ch.e MontgCGleJ:y Vard' s,
D:1seover, and D6I'CfJ ch.argoO cards J::tlrrellt1y issued in the names
of both. parties, Husband alao atrees co pay in full a personAl.
loal1 with the DArCO.
----.-; .
2) ..ita aad 8:uabal1d agree ehat e4Ch. \I:1ll pay in ft1l.1. any
cha.rges preViously :1n<:u:rt:ed oJ: l.n<:u=ed in ehe futtlre OD. the
charge =rds issued in each parties' indiv:1.dual na.me and that:
J:he.party whose. o,a,llledoeslloe appeAr. .on thec;harge card. vjJJ,. =.1;..
:J,1.apr~"for aIJf i:~rges incurred on.c'hecar.Lissue4.. 1n. ti>e_~'
of;g~,,~t:lier.~rty:"'--" ..... ... '
Each party repreGe.t1ts and "grees that,lle oJ;,.!'he ~s' "'oCc"
heretofor,,"coctr;Lcced 'for- all.Y_.d~~t:... . Uabil.ity or.9Ql.1gariol1 1.tlCltld.tng:./
- '-;,.~-'~-~-~--~'.'-""-->---- - - - - - ---- > ,'>-
chose for ,..Melt the other or the oOstate of the other <IIAY be"'resp0l18.1ble
?age 7 of 9
.... .
< ,
. .
COMMONWLrH OF PENNSYLVANIA :
COUN'tY OF 0' (..IN\ ~l D
. 011 th1s, the J3T.t!- day of .J<r/...~ ' 1994, before IlIA! a ~otary
Public: for the COlllUloClvealth of PellDSylva:11a residing ill the County
OfC'NV\I!:tn!L..~O, peraouall,. appeared Nmcy A. Jl.aker, moWll. to IlIe to be
the persall W ce _ i8 subac:r1bed to the within A.grement and
&c:knowledged th4t abe exec:ueed tbe same for the purposes therein
c:outuued.
: S8.
seal.
IN WITNESS ~1lIlEOF, I have hereunto set lilY halld 8J:ld. of{~&l.
I
NOTARiAl SEAL
Judith Ann Valenline, Nolary Public
Carlisle. Cumberland County
My Commission Expires NO'l.12, 1994
COMMON"lIEAI.:IX. OF PENNSn..VANll
COUlfIY 01 c'1 I ~ ~dLlA.uO
. On this, the /30 day of ~ LYr-.~ ' 1994, before :lie ~otary
Public: for the CclIIIIoavealth of PeaCLSylvaa1a ::es1ding 111. the County
of~~\lJ , penoually appured Elwod F. Baker, moWCL to me to be
the persoCl whose =e i. sub6c:r1bed to tbe Jrithic. Agrelllllel1t and
.
acknowledged that he execl1ted the same for tbe purpoces therein
c:ollta.1l1ed.
: ss.
seal..
IN \tITNESS liHERE01. I have .hereuc.to set rrrr hand aud offici&!.
NOTARIAL SEAL
Judith Ann Valenline, NOlary Pub"
Carlisle, Cumberland County
My Commission Expires Nov. 12. 1994
Page 9 of. 9
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IN THE COURT OF COMMON PLEAS OF THE 59TH JUDICIAL DISTRICT OF PENNSYLVANIA
COUNTY BRANCH - CAMERON
Plain!:iff
)
)
)
)
)
)
)
)
)
Case Yo. 94-2913
in D1Yo~ce
Elwood F. Baker.
CivD. Action - Law
va.
Naney A. aaker,
Defeuda.c.t.
STIl'UL\.IION
1. the uwlers1ped, Zlvood "8_ aaker. is c~ plaintiff 111 the
above-captioned divorce a.c:tioc..
2. the uwlera1.gaed., Nancy A. B.ker. is the defendallt in t:he
abov~captioned diYo~e act1011.
3. Attached hereto as Exhibit ~A. W is Set:tlemellt Agreem=c entered
illCO by che pa.rt:1es to this divorce action.
4. Plaintiff aad Defendant respectfully request that Exhibtt-1.-be
el1Cered into the record 4t the above-c4ptioae! <:.sse.
~~~
lUvood F. aa1cer, Plaint:iff
r-:, ~
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,,',
IN THE COURT OF COMMGN-PLEAS OF THE 59TH JUDICIAL DISTaIG~~F PENNSYLVANIA
COUNTY BRANCH - CAMERON
ELWOOD F. BAKER
Plaintiff
I
I CIVIL ACTION - LAW
I
I CASE NO. 94-2913
I
) IN DIVORCE
)
I
I
I
I
vs.
NANCY A. BAKER
Defendant
DECREE
AND NOW,
'JILl \f I q
I
, 19Q~, it is ordered and
decreed that Plaintiff and Defendant are divorced from the bonds
of matrimony.
The Court retains jurisdiction of any claims raised by the
parties to this action for which a final order has not yet been
entered. As of the date hereof, neither party has raised any such
claim.
BY THE COURT:
/5/ tjoraon J. '.Dagnir
PRESIDENT JUDGE
True and Correct Copy
r.ertified from the
Records of Cameron Co.
2enna. \
~c Stanley J. Reisman
1M {)J-/t6 .;Q[ au Iuk_i ~~. --u-----.~ttornev for Plaintiff
Protho tary DcA PLAINTIFF'S IILaw & Finance Building
EXHIBIT Pittsburgh. PA 15219
1(412) 232-0406
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.
.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NANCY A. BAKER,
Plaintiff
:
.
.
VS.
ELWOOD BAKER,
Defendant
: CIVIL DIVISION
: No. 00-7903 Civil
.
.
:
ORDER
AND NOW, this
day of
__, 2000, the
Motion For Summary Judgment is
J
(or) in the Alternative
AND NOW, this
day of
,
2000,
A Hearing on the Motion For Summary Judgment by the named
Defendant is set for
,
2000,
in the Cumberland
County Courts in Court Room #
, at
AM/PM.
Date
J.
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NANCY A. BAKER, . IN THE COURT OF COMMON PLEAS
.
plaintiff . CUMBERLAND COUNTY, PENNSYLVANIA
.
.
.
. CIVIL DIVISION
.
VS. . No. 00-7903 Civil
.
ELWOOD F. BAKER, .
.
Defendant .
.
MOTION FOR SUMMARY JUDGMENT
AND NOW comes the Defendant, by and through his attorney,
Herbert Corky Goldstein, Esquire, who respectfully represents
as follows:
1. The above referenced lawsuit was commenced by the filing
of a complaint on or about November 8th, 2000.
2. The Plaintiff filed her complaint on the alleged basis that
there was an underlying legal property settlement agreement
that was a "valid and binding contract".
3. This alleged "Settlement Agreement" was prepared by the
Plaintiff a.nd the Plaintiff I s niece, who was not an attorney.
Her name was Cristine Gill. His wife said her niece was a law
student and knew the law. It was represented to him that this
settlement was fair and that he had to sign in order for the
Divorce Decree to be granted. He did not know that he was
entitled to counsel and did not understand the issues involved.
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4. Defendant only signed this agreement after his wife assured
him that the Agreement was fair and equitable.
5. Plaintiff sent this "Agreement" to the "Defendant" in
mail and he signed it. Also, the witness who signed
Agreement, Defendant does not know the witness, and was
present. He also never appeared before a Notar~
6. The Law Office that handled the Divorce itself was not
involved in preparing the specific contents of the Agreement
and did not advise the Defendant about this Agreement.
7. Defendant eventually spoke to an Attorney in the summer
of 1997, and learned that the so-called "fair" Agreement prepared
by the plaintiff and by the Plaintiff I s niece he signed was
completely one sided and not valid. Defendant did not have any
counsel much less an independent counsel to advise him of his
rights and he never waived that right. He was also led to believe
that the Attorney who handled the Divorce was involved, and
found out later that he had no involvement. He and his law
office only handled the Divorce. They do not negotiate property
settlements.
the
this
not
8. Defendant was eventually advised that he had been greatly
taken advantage of by his wife, and that her niece, the
co-preparer of the specifics in the Agreement was not
representing his interests, as she was only representing her
Aunt, the Plaintiff, in securing his signature.
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9. Plaintiff and Defendant were divorced on July 19th, 1994,
by going through the law offices of a Stanley S. Reisman, who
operated a "Divorce Mill" in Pittsburgh.
The Divorce handled
by Stanley S. Resiman, did not deal with any property concerns
or a settlement. That law office only dealt. with the obtaining
of a Divorce and no other issues. The Settlement Agreement was
secured by the Plaintiff and Plaintiff's niece.
10. It is submitted that the Plaintiff would have the Court
believe that the law office who handled the Divorce, also handled
the "Property Settlement".
In fact, it was a totally separate
document and after securing Defendant's signature, it was just
sent to the law office in Pittsburgh handling the Divorce to
file.
11. Defendant says no one witnessed his signature as now appears
on the "document", and he did not go before a Notary, as
indicated.
12. Any review of the so-called Settlement, clearly indicates
that the Defendant was not represented by any counselor by
any independent source before signing the papers presented to
him by the Plaintiff.
13. A summary judgment should be rendered in this case, as
the plaintiff is required to present sufficient evidence that
a legally valid and binding settlement agreement e]tists. The
Plaintiff has the burden of proof, and has not met that burden.
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There is no evidence at all that this was a legally valid and
binding Settlement Contract, as Defendant is entitled to
independent legal counsel and never waived that right in that
document, or at any other time..
14. When the Plaintiff does not present evidence on the issue
essential to her case and which she bears the burden of proof,
such that a jury could return a verdict in her favor, and failure
to present this evidence establishes that there is not a genuine
issue of a material fact, the Defendant is entitled to a summary
judgment as a matter of law. Rules of Civ.Proc., Rule 1035,
42 Pa C.S.A.
15. In summary judgment cases, the Court should review the
record in a light more favorable to the Plaintiff. Rules of
Civ. Proc. Rule 1035, 42 Pa. C.S.A. However, even in the light
most favorable to the Plaintiff, the Plaintiff has not shown
there was a legally binding property settlement agreement in
which the Defendant was given any independent advice, and in
fact, the only representation for the Defendant was the
Plaintiff's niece, a non attorney, who prepared the Agreement.
16. Also, in order for such a property settlement contract,
which purports to be part of a Divorce settlement, Defendant
must waive his rights to counsel in the Document itself, and
this was not done.
- 4 -
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WHEREFORE, THE Defendant respectfully prays this Honorable
Court to grant the wi thin Motion For Summary Judgment, and to
enter judgment in favor of the Defendant, and against the
Plaintiff.
Respectfully submitted,
Dated /q1/,~:)Ot{)
Law Offices of Herbert
Corky Goldstein, Esq.
ERT CO KY
204 State Street
P. O. Box 10463
Harrisburg, PA 17105-0363
(717) 236-6491
LD. # 7182
Attorney for Defendant
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,
.
;
NANCY A. BAKER,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL DIVISION
v.
: No. 00-7903 Civil
ELWOOD F. BAKER,
Defendant
ORDER
AND NOW, this
day of
, upon consideration of Plaintiff s
Motion to Strike Off Defendant's Motion for Summary Judgment, it is hereby ORDERED that
the Defendant's Motion for Summary Judgment is Stricken.
1.
Distribution:
Gregory 1. Cutler, Esquire
Attorney for Plaintiff
50 East High Street
Carlisle, PA 17013
Herbert Corky Goldstein, Esquire
Attorney for Defendant
204 State Street
PO Box 10363
Harrisburg, PA 17105
~_ .0_
11
~~'
.
NANCY A. BAKER,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL DIVISION
v.
: No. 00-7903 Civil
ELWOOD F. BAKER,
Defendant
PLAINTIFF'S MOTION TO STRIKE OFF DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT
AND NOW, comes the Plaintiff, Nancy A. Baker, by and through her attorneys, The Law
Offices of Paul Bradford Orr, and respectfully avers as follows:
I. On November 8, 2000 the Plaintiff filed a complaint for Breach of Contract.
2. On approximately November 20, 2000, the Defendant filed a Motion For
Summary Judgment.
3. The Defendant has not filed an Answer to the Plaintiffs Complaint.
4. The Defendant has not filed any Preliminary Objections to the Plaintiffs
Complaint.
5. Pa.R.C.P. No. 1035.2 states in relevant part that "After the relevant pleadings are
closed, but within such time as not to unreasonably delay trial, any party may move for Summary
Judgment in whole or in part as a matter oflaw".
6. The relevant pleadings are not closed, and in fact, the only pleadings are contained
in the Plaintiffs Complaint which remains unanswered.
7. Therefore, the Defendant's Motion for Summary Judgement is improper.
:''''''''''-,"
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, ,.
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WHEREFORE, the Plaintiff requests that the Motion for Summary Judgement be
Stricken.
Respectfully Submitted,
THE LAW OFFICES OF PAUL BRADFORD ORR
~~{ftL
Attorney for Plaintiff
50 East High Street
Carlisle, PA 17013
(717) 258-8558
Supreme Court ID #73471
Dated: I//Joho
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this date a true and correct copy of the foregoing
Motion was served by regular, first-class U.S. Mail, postage prepaid, upon the following:
Herbert Corky Goldstein, Esquire
204 State Street
PO Box 10363
Harrisburg, POA 17105-0363
Date: 11/1 aJ'1cr
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NANCY A. BAKER,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL DIVISION
v.
: No. 00-7903 Civil
ELWOOD F. BAKER,
Defendant
ORDER
AND NOW, this
day of
, upon consideration of Plaintiff s
Motion to Strike Off Defendant' s Motion for Summary Judgment, it is hereby ORDERED that
the Defendant's Motion for Summary Judgment is Stricken.
J.
Distribution:
Gregory 1. Cutler, Esquire
Attorney for Plaintiff
50 East High Street
Carlisle, P A 17013
Herbert Corky Goldstein, Esquire
Attorney For Defendant
204 State Street
Harrisburg, PA 17105-0363
r "
"
DEe 0 1 2000lP
NANCY A. BAKER,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL DIVISION
v.
: No. 00-7903 Civil
ELWOOD F. BAKER,
Defendant
ORDER
AND NOW, this
day of
, upon consideration of Plaintiff s
Motion to Strike Off Defendant' s Motion for Summary Judgment, it is hereby ORDERED that
the Defendant's Motion for Summary Judgment is Stricken.
1.
Distribution:
Gregory 1. Cutler, Esquire
Attorney for Plaintiff
50 East High Street
Carlisle, P A 17013
Herbert Corky Goldstein, Esquire
Attorney For Defendant
204 State Street
Harrisburg, PA 17105-0363
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SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 2000-07903 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
BAKER NANCY A
VS
BAKER ELWOOD F
Thomas Kline
, Sheriff or Deputy Sheriff who being
duly sworn according to law, says, that he made a diligent search and
and inquiry for the within named DEFENDANT
, to wit:
BAKER ELWOOD F
but was unable to locate Him
in his bailiwick. He therefore
deputized the sheriff of DAUPHIN
County, Pennsylvania, to
serve the within COMPLAINT & NOTICE
On November 30th, 2000 , this office was in receipt of the
attached return from DAUPHIN
Sheriff's Costs:
Docketing .00
Out of County 9.00
DEP. DAUPHIN CO 25.50
.00
.00
34.50
11/30/2000
PAUL BRADFORD ORR
s~
R. homas Kline - ..
Sheriff of Cumberland County
Sworn and subscribed to before me
day of ~
this /~
c2rnrD A.D.
()~a~~r
Prothonotary
I~ "~
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SHERIFF'S RETURN - REGULAR
CASE NO: 2000-07903 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
BAKER NANCY A
VS
BAKER ELWOOD F
RICHARD SMTIH
, Sheriff or Deputy Sheriff of
Cumberland County, Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE
was served upon
BAKER ELWOOD F the
DEFENDANT , at 0014:53 HOURS, on the 14th day of November, 2000
at POE: NAVY INV. CON POINT BLDG SECURITY OFFICE
MECHANICSBURG, PA 17055 by handing to
ELWOOD BAKER
a true and attested copy of COMPLAINT & NOTICE
together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
18.00
7.44
.00
10.00
.00
35.44
So Answers:
r~~4
R. Thomas Kline
11/30/2000
PAUL BRADFORD
Sworn and Subscribed to before By:
. ,..-ov
me thls /u-
day of
'({L:tJ ""VO A.D.
,
I <
/u, a 1zuhL../, ~
plothonotary
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(\\)ffitt of tlfc ~4C:tiff
William T. Tully
Solicitor
Ralph G. McAllister
Chief Deputy
Michael W. Rinehart
Assistant Chief Deputy
Mary Jane Snyder
Real Estate Deputy
Dauphin CoWlly
Harrisburg, Pennsylvania 171 0 1
ph: (717) 255-2660 fax: (717) 255-2889
Jack Lotwick
Sheriff
Commonwealth of Pennsylvania
BAKER NANCY A.
vs
County of Dauphin
BAKER ELWOOD F
Sheriff's Return
No. 2577-T - -2000
OTHER COUNTY NO. 00-7903
AND NOW: November 20, 2000 at 1:30PM served the within
COMPLAINT
upon
BAKER ELWOOD F
by personally handing
to HIM
1 true attested copy(ies)
of the original
COMPLAINT
and making known
to him/her the contents thereof at 101 S. SECOND ST.
STE. 405
HARRISBURG, PA 17101-0000
before me this 21ST day of NOVEMBER, 2000
'''.'' _ -. '_"" ., :",,:.:;':',,~'r:f(:'.J.,.,'
C!-. paMw)
So Answers,
JR~
Sher~county,
By
Sworn and subscribed to
PROTHONOTARY
Deputy Sheriff
Sheriff's Costs: $25.50 PD 11/13/2000
RCPT NO 143258
HOPKINS
,-,"
1-'
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:' In: The Court of Common Pleas of Cumberland County, Pennsylvania
Nancy A. Baker
VS.
Elwood F. Baker
No. 20-7903 Civil
N W 11/8/00
o ,
, 20 0 C , I, SHERIFF OF CUMBERLAND COUNTY, P A, do
hereby deputize the Sheriff of
Dauphin
County to exe.cute this Writ, this
deputation being made at the request and risk of the Plaintiff.. J/ .zf!..
r~nA~t:~f
Sheriff of Cumberland County, PA
Affidavit of Service
Now,
,20_, at
o'clock
M. served the
within
upon
at
by handing to
copy of the original
a
and made Imown to
the contents thereof
So answers,
Sberiff of
County, PA
Sworn and subscribed before
me this _ day of
20
'-
COSTS
SERVTCE
MILEAGE
AFFIDAVTT
$
$
1-" _
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NANCY A. BAKER,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYL V ANlA
.
: CIVIL DMSION
v.
: No. 00-7903
ELWOOD F. BAKER,
Defendant
PROOF OF SERVICE
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Attached hereto is notice that
Elwood F. Baker
101 South 2nd Street, Suite 814
Harrisburg, PA 17101
was served with a Complaint and Notice in the above captioned case on November 14, 2000.
(See attached Exhibit A. ")
DATE: /d! .s-/o'O
BY:
e,~qL
Attorney for Plaintiff
Supreme Court ID # 73471
50 East High Street
Carlisle, PA 17013
(717) 258-8558
@ffb:~ of iq:e ~1r:eriff
.
Mary Jane Snyder
Real Estate Deputy
William T. Tully
Solicitor
Ralph G. McAllister
Chief Deputy
Michael W..Rinehart
Assistant Chief Deputy
Dauphin Cowrty
Harrisburg, Pennsylvania 171 0 I
ph: (717) 255-2660 fax: (717) 255-2889
Jack Lotwick
Sheriff
Commonwealth of Pennsylvania
BAKER NANCY A.
vs
County of Dauphin
BAKER ELWOOD F
Sheriff's Return
No. 2577-T - -2000
OTHER COUNTY NO. 00-7903
AND NOW: November 20, 2000 at 1:30PM served the within
COMPLAINT
upon
BAKER ELWOOD F
by personally handing
to HIM
1 true attested copy(ies)
of the original
COMPLAINT
and making known
to him/her the contents thereof at 101 S. SECOND ST.
STE. 405
HARRISBURG, PA 17101-0000
Sworn and subscribed to
So Answers,
JR~
Sher~county,
By
before me this 21ST day of NOVEMBER, 2000
.":""'-:-.';':'t""'"
CLt. I (\
\,j{J?rUf1l) C-. ( -/-)(iWw)
PROTHONOTARY
Deputy Sheriff
t;.)d,I"" t 4
Sheriff's Costs: $25.50 PD 11/13/2000
RePT NO 143258
HOPKINS
""w- ~
~l
! I
,
SHERIFF'S RETURN - REGULAR
.
CASE NO: 2000-,0790~ P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
BAKER NANCY A
VS
BAKER ELWOOD F
RICHARD SMTIH
, Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE
was served upon
BAKER ELWOOD F the
DEFENDANT , at 0014:53 HOURS, on the 14th day of November, 2000
at POE: NAVY INV. CON POINT BLDG SECURITY OFFICE
MECHANICSBURG, PA 17055 by handing to
ELWOOD BAKER
a true and attested copy of COMPLAINT & NOTICE
together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
18.00
7.44
.00
10.00
.00
35.44
So Answers:
~~~~
R. Thomas Kline
11/30/2000
PAUL BRADFORD
Deputy Sheriff
Sworn and Subscribed to before By:
. me this
day of
A.D.
Prothonotary
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,
SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 2000707902 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
VS
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,.; :JJ-1I!\fO]
BAKER NANCY A
BAKER ELWOOD F
Thomas Kline
, Sheriff or Deputy Sheriff who being
duly sworn according to law, says, that he made a diligent search and
and inquiry for the within named DEFENDANT
, to wit:
BAKER ELWOOD F
but was unable to locate Him
in his bailiwick. He therefore
deputized the sheriff of DAUPHIN
serve the within COMPLAINT & NOTICE
County, Pennsylvania, to
On November 30th, 2000 , this office was in receipt of the
attached return from DAUPHIN
Sheriff's Costs:
Docketing .00
Out of County 9.00
DEP. DAUPHIN CO 25.50
.00
.00
34.50
11/30/2000
PAUL BRADFORD ORR
s~
R. homas Klin';;-'- .
Sheriff of Cumberland County
Sworn and subscribed to before me
this
day of
A.D.
Prothonotary
0"",<"
, I
-
. .
In The Court of Common Pleas of Cumberland County, PennsyivaJIT.ia
Nancy A. Baker
VS.
Elwood F. Baker
No, 20-7903 Civil
Now, 11/8/00
,20 0 ~ ,I, SHERIFF OF CUMBERLAND COUNTY, P A, do
hereby deputize the Sheriff of
Dauphin
County to execute this Writ, this
deputation being made at the request and risk of the Plaintiff.
. . r~~~~t
Sheriff of Cumberland County, P A
Affidavit of Service
Now,
,20_, at
o'clock
M. served the
within
upon
at
by handing to
a
copy of the original
and made lmown to
tbe contents thereof.
So answers,
Sheriff of
County, PA
Sworn and subscribed before
me this _ day of
20
'-
COSTS
SERVICE
MILEAGE
AFFIDAVIT
$
$
~-"' .-
""'-1
NANCY A. BAKER,
Plaintiff
.
.
.
.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
.
.
VS.
: CIVIL DIVISION
: NO. 00-7903 Civil
ELWOOD F. BAKER,
Defendant
:
:
ANSWER TO COMPLAINT
A. DENIED. Defendant entered into an Agreement with Plaintiff,
ex-wife, only after he was assured by his ex-wife that her niece
prepared the Agreement and she was a law student and "knew the
law", and the "Agreement was fair."
Defendant was also led
to believe that the lawyer from Pittsburgh that was handling
their Divorce, was involved in the Agreement. Defendant husband
had
no
legal
representation
and
for
that
matter,
no
representation at all.
This Agreement was not a valid or binding contract.
Moreover, Plaintiff did not even comply with her obligations
under the terms of the Agreement she and her niece prepared
for Defendant's signature. Defendant however paid on this so-
called Agreement until he found that the Agreement was not valid.
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Defendant has never attempted to conceal his residence
as the Plaintiff alleges in their Complaint.
WHEREFORE, Defendant asks the Court to Dismiss this
Complaint.
N f'! CfJ~~ 000
Date I
~~ .
Her ert Corky oldstein, ~
204 state street
P. O. Box 10363
Harrisburg, PA 17105-0363
(717) 236-6491
I.D. # 7182
Attorney for Defendant
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VERIFICATION
I verify that the statements made in this Complaint
are true and correct. I understand that false stat~ments herein
are made subject to the penalties of 18 Pa. C.S. Section 4904
relating to unsworn falsification to authorities.
Da~rr 3o;~cw
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NANCY A. BAKER, : IN THE COURT OF COMMON PLEAS
Plaintiff . CUMBERLAND COUNTY, PENNSYLVANIA
.
:
VS. . CIVIL DIVISION
.
. No. 00-7903 Civil
.
ELWOOD F. BAKER, .
.
Defendant .
.
PRAECIPE
Please enter my Appearance in the above captioned matter
on behalf of the Defendant, Elwood F. Baker.
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NANCY A. BAKER, . IN TOE COURT OF COMMON PLEAS
.
Plaintiff . CUMBERLAND COUNTY, PENNSYLVANIA
.
:
VS. : CIVIL DIVISION
. No. 00-7903 Civil
.
ELWOOD F. BAKER, :
Defendant :
PRAECIPE
Please enter my Appearance in the above captioned matter
on behalf of the Defendant, Elwood F. Baker.
,,',","'7:
-, I
NANCY A. BAKER,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: ClVIL DIVISION
v.
: No. 00-7903
ELWOOD F. BAKER,
Defendant
ORDER
AND NOW, this
day of
. 200 I upon consideration of
Plaintiff's Preliminary Objections to Defendant's Answer, it is hereby ORDERED that said
Objections are sustained and that the Defendant is hereby ORDERED to plead his Answer in
numbered paragraphs corresponding to the numbered paragraphs in Plaintiff's Complaint and in
accordance with PaRC.P. No. 1022 and that said Answer be verified in a~cordance with
Pa.R.C.P. No. 1024.
BY THE COURT:
1.
Distribution:
Gregory 1. Cutler, Esq.
The Law Offices of Paul Orr
50 E. High Street
Carlisle, PA 17013
Herbert Corky Goldstein, Esq.
204 State Street
P.O. Box 10363
Harrisburg, PA 17105-0363
,. .-,',-r-- ','-
NANCY A. BAKER,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYL VANIA
: CIVIL DMSION
v.
: No. 00-7903
ELWOOD F. BAKER,
Defendant
PRELIMINARY OBJECTIONS
AND NOW, here comes the Plaintiff, by and through her counsel, THE LAW OFFICES
OF PAUL BRADFORD ORR, Gregory 1. Cutler, Esquire, pursuant to Pa. R.C.P. No. 1028 and
preliminarily objects to Defendant's Answer as follows:
Preliminary Obiection To Defendant's Failure To Conform to a Rule Of Court
1. On Novemher 8, 2000, the Plaintiff filed a Complaint for breach of contract
consisting of eighteen numbered paragraphs. This Complaint was served on Defendant on
November 14, 2000.
2. On December 8, 2000, the Defendant filed an answer (dated November 30,2000)
and then served the same on Plaintiff. (See copy attached hereto as Exhibit A).
3. Defendant's Answer contains only two long paragraphs followed by two short
sentences. Defendant's paragraphs in his answer are not numbered nor do they correspond to
the numbered paragraphs of Plaintiff's Complaint.
4. UnderPa. RC.P. NO.206.2 (b), an answer, "shall be divided into paragraphs,
numbered consecutively, corresponding to the numbered paragraphs of the petition."
"'!!l!lY""'., _,
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5. Under Pa. R. C. P. No. 1022: "[e]very pleading shall be divided into paragraphs
numbered consecutively. Each paragraph shall contain as far as practicable only one material
allegation."
6. Defendant's Answer fails to conform to both Pa. R. C. P. No. 206.2 (b) and to Pa.
R. C. P. No. 1022.
7. Defendant's current answer is not verified by the Plaintiff and does not set forth a
reason why the verification is not made by the Plaintiff.
8. Under Pa. R. C. P. No. 1024 (c):
"The verification shall be made by one or more of the parties filing the pleading
unless all the parties (I) lack sufficient knowledge or information, or
(2) are outside the jurisdiction of the court and the verification of none of them
can be obtained within the time allowed for filing the pleading. In such cases, the
verification may be made by any person having sufficient knowledge or information
and belief and shall set forth the source of the person's information as to matters
not stated upon his or her own knowledge and the reason why the verification is not
made by the party."
9. Defendant's verification fails to conform to Pa. R. C. P. No. 1024.
WHEREFORE, Plaintiff requests that this Court Order Defendant to plead his Answer
in numbered paragraphs corresponding to the numbered paragraphs in Plaintiff's Complaint and
that said Answer be verified in accordance with Pa.R.C.P. No. 1024.
Respectfully submitted,
DATE: /"d-/;)/o D
THE LAW OFFICES OF PAUL BRADFORD ORR
~~.{fYL
Attorney for Plaintiff
Supreme Court ID # 73471
50 East High Street
Carlisle, PA 17013
"1' ~ ,_, ~_ I __, ~ " , _ , ,
VERIFICATION
In accordance with Pa. RC.P. No. 1024 (a), no verification is needed since there are no
averments offact not appearing of record in the action or containing any denial offacts.
However, to the extent that a verification is needed, the foregoing Preliminary Objections on
behalf of Nancy Baker are based upon information which has been gathered by counsel for the
Defendant in the preparation of these Preliminary Objections. The statements made therein are
true and correct to the best of the counsel's knowledge, information, and belief. The undersigned
is verifYing on behalf of the Plaintiff according to Pa. RC.P. No. 1024 .(C)(2). The undersigned
understands that false statements herein made are subject to the penalties of 18 Pa.C.S.A., Section
4904, relating to unsworn falsification to authorities.
~~er/ UL
DATE: / d- /; ~~D
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/
NANCY A. BAKER,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
.
.
VS.
: CIVIL DIVISION
: NO. 00-7903 Civil
ELWOOD F. BAKER,
Defendant
.
.
.
.
ANSWER TO COMPLAINT
A. DENIED. Defendant entered into an Agreement with Plaintiff,
ex-wife, only after he was assured by his ex-wife ttt~her niece
prepared the Agreement and she was a law student and "knew the
law", and the "Agreement was fair."
Defendant was also led
to believe that the lawyer from Pittsburgh that was handling
their Divorce, was involved in the Agreement. Defendant husband
had
no
legal
representation
and
for that matter,
no
representation at all.
This Agreement was not a valid or binding contract.
Moreover, Plaintiff did not even comply with her obligations
under the terms of the Agreement she and her niece prepared
for Defendant's signature. Defendant however paid on this so-
called Agreement until he found that the Agreement was-not valid.
PLAINTlFF'S
EXHIBIT
A
-~ - -- -
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Defendant has never attempted to conceal his residence
as the Plaintiff alleges in their Complaint.
WHEREFORE, Defendant asks the Court to Dismiss this
Complaint.
NN:Jj~~OOO
Da te I
Her ert Corky oldstein,
204 state street
P. O. Box 10363
Harrisburg, PA 17105-0363
(717) 236-6491
LD. # 7182
Attorney for Defendant
- 2 -
. ,
~
, .
VERIFICATION
I verify that the statements made in this Complaint
are tr~_and correct. I understand that false statements herein
are made' subject to the penalties of 18 Pa. C.S. Section 4904
relating to unsworn falsification to authorities.
llrr30~J-(W
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- 3 -
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Preliminary Objections
was delivered via first-class mail to the following:
Herbert Corky Goldstein, Esq.
204 State Street
P.O. Box 10363
Harrisburg, PA 17105-0363
Date: /"d-/; diD 0
~I(ol
By:
--,
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and subnitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter for the next Arg\:I11ent Court.
---------------------------------------------------------------------------------------
CAPTION OF CASE
(entire caption must be stated in full)
NANCY A. BAKER,
Plaintiff
(Plaintiff)
vs.
ELWOOD F. BAKER,
Defendant
( Defendant)
No. 00-7903
Civil DIVISION I~ 2000
i. State matter to be argued (Le., plaintiff's IOOtion for new triaL defendant's
danurrer to carrplaint, etc.):
Whether Plaintiff's Preliminary Objections to Defendant's Answer
should be granted?
2. Identify counsel who will argue case:
Gregory L. Cutler, ESQuire
(a) for plaintiff: The Law Offices of Paul Bradford Orr
Address: 50 East High Street
Carlisle, PA 17013
(b) for defendant:
Address:
Herbert C9rky Goldstein, ESQuire
204 St~te Street
P. O. Box 10363
Harrisburg, PA 17105-0363
3. I will notify all parties in writing within two days that this case has
been listed for argurent.
4. ArgI.Inent Court Date:
January 3, 2001
Dated: /;;-J; "d-/b D
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NANCY A. BAKER,
Plaintiff,
v.
ELWOOD F. BAKER,
Defendant.
TO THE PROTHONOTARY:
..
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL DIVISION
: NO. 00-7903 Civil
PRAECIPE
Please withdraw Defendant Elwood F. Baker's motion for summary judgment.
Dated: (}.D ~. koo ()
-"""~~ .
I'
Respectfully Submitted,
Law Offices of Herbert Corky Goldstein, Esq.
By ~~~SQ
Identification No. 7182
204 State Street
P.O. Box 10463
Harrisburg, Pennsylvania 17105-0363
(717) 236 - 6491
Attorney for Defendant
"
..
..
NANCY A. BAKER,
Plaintiff,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL DIVISION
ELWOOD F. BAKER,
Defendant.
: NO. 00-7903 Civil
CERTIFICATE OF SERVICE
I, Herbert Corky Goldstein, Esquire, attorney for Defendant, Elwood F. Baker, hereby certifY
that I this day served a copy of the foregoing Praecipe upon the person(s) indicated below by depositing
a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, and
addressed as follows:
Gregory 1. Cutler, Esq.
50 East High Street
Carlisle, Pennsylvania 17013
Respectfully Submitted,
Law Offices of Herbert Corky Goldstein, Esq.
Dated: do Jk ..a 0 00
By:
HE ERT CO OLD STEIN, ESQ.
Identification No. 7182
204 State Street
P.O. Box 10463
Harrisburg, Pennsylvania 171 05-0363
(717) 236 - 6491
Attorney for Defendant
2
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-, I
- ~-,
NANCY A. BAKER,
Plaintiff,
: IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL DIVISION
ELWOOD F. BAKER,
Defendant.
: NO. 00-7903 Civil
NOTICE
TO: Nancy A. Baker, C/O Gregory 1. Cutler, Esq., 50 East High Street, Carlisle, Pennsylvania
17013.
YOU ARE HEREBY NOTIFIED that the New Matter and Counterclaims set forth herein
contain averments against you to which you are required to respond within twenty (20) days after
service thereof. Failure by you to do so may constitute an admission.
Law Offices of Herbert Corky Goldstein, Esq.
Dated: rib. ,8,() "i);"rx>d
By:
HE RT CORK STEIN, ESQ.
Identification No. 7182
204 State Street
P.O. Box 10463
Harrisburg, Pennsylvania 17105--0363
(717) 236 - 6491
Attorney for Defendant
- 1 -
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NANCY A. BAKER,
Plaintiff,
: IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL DIVISION
ELWOOD F. BAKER,
Defendant.
NO. 00-7903 Civil
AMENDED ANSWER
AND NOW comes the Defendant, Elwood F. Baker, by and through his attorney, Herbert
Corky Goldstein, Esquire, with the permission of Plaintiff s Counsel, to respectfully amend his answer
as follows:
1. Admitted.
2. Admitted.
3. Admitted in part, denied in part. It is admitted that on the 13th day of July, 1994,
Plaintiff and Defendant signed a written agreement. It is denied that the Settlement Agreement
attached to Plaintiffs Complaint is a true and correct copy of the written agreement. More specifically,
the signatures of both the parties and the witnesses on Plaintiffs Complaint do not comport with those
on the original document.
4. Denied. This averment states a conclusion of law to which no further response is
necessary or appropriate. Accordingly, said averment is denied and strict proof thereof, if admissible,
is demanded at time of trial. In further response, paragraph three (3) of Defendant's Amended Answer
is incorporated as if fully set forth herein.
5. Denied. This averment states a conclusion of law to which no further response is
necessary or appropriate. Accordingly, said averment is denied and strict proof thereof, if admissible,
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is demanded at time of trial. In further response, paragraphs 19 through 28 of Defendant's New
Matter are incorporated as if fully set forth herein.
6. The agreement speaks for itself.
7. Admitted.
8. Admitted in part, denied in part. This averment is admitted to the extent that it assumes
that Plaintiff has fulfilled all of her obligations under the agreement. However, to the extent that
Plaintiff did not or does not fulfill her obligations under the agreement, the averment is denied.
9. Admitted.
10. Denied. It is specifically denied that Defendant misses a total of 24 payments covering
the time period of August 1997 to July 1999 for a total of twelve thousand dollars ($12,000.00) in
missing payments. In further response, paragraphs 19 through 28 of Defendant's New Matter are
incorporated as if fully set forth herein.
11. Denied. Paragraphs 19 through 28 of Defendant's New Matter are incorporated as if
fully set forth herein.
12. Denied. Paragraphs 19 through 28 of Defendant's New Matter are incorporated as if
fully set forth herein.
13. The agreement speaks for itself.
14. Denied. 23 Pa.C.S.A. S3l04 (c) provides: "Powers of court.-- The court has authority to
entertain an action under this part notwithstanding the fact that the marriage of the parties and the cause
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for divorce occurred outside of this Commonwealth and that both parties were at the time of the
occurrence domiciled outside this Commonwealth. The court also has the power to annul void or
voidable marriages celebrated outside this Commonwealth at a time when neither party was domiciled
within this Commonwealth."
15, The statute speaks for itself.
16. The agreement speaks for itself.
17, The agreement speaks for itself.
18, Denied. Defendant has not failed to inform Plaintiff of his whereabouts and has not
taken any steps to conceal his whereabouts. Plaintiff, at all times relevant hereto, was informed of
Defendant's whereabouts. Furthermore, Defendant's name, address and telephone number are in the
Bell Atlantic Harrisburg Metropolitan telephone book.
WHEREFORE, Defendant Elwood F. Baker respectfully request this Honorable Court to
dismiss Plaintiff Nancy A. Baker's Complaint with prejudice.
NEW MATTER
Further answering the averments of Plaintiffs Complaint, Defendant avers:
19. Prior to executing the agreement sued upon by Plaintiff, Plaintiff, with the intent to
deceive and defraud Defendant, falsely represented to Defendant that the law firm that had handled the
divorce prepared the property settlement agreement, and that the agreement was balanced, fair and was
required under the law.
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20. With further intent to deceive and defraud Defendant, Plaintiff falsely represented that
Plaintiffs niece, Christine Gill, a law student and judicial clerk, stated that the property settlement
agreement was balanced, fair and was required under the law.
21. Defendant avers that he believed Plaintiff s statements and in reliance thereon, signed
the property settlement agreement.
22. Unknown to Defendant, the property settlement agreement was drafted by Plaintiffs
niece, Christine Gill, and was not drafted by the law firm that handled the divorce.
23. Defendant avers that Plaintiff made the above-mentioned statements with the intent to
fraudulently induce Defendant to sign a property settlement agreement that was disproportionate, unfair
and oppressive. Accordingly, Defendant raises the defense of fraud.
24. Defendant denies that Plaintiff performed all of Plaintiffs obligations under the
agreement. In this connection, Defendant alleges that Plaintiff failed to perform such contract
obligations in that Plaintiff failed to surrender Defendant's tools upon Defendant's demand. Said tools
are worth more than twelve thousand dollars ($12,000.00). Accordingly, Defendant raises the defense
of nonperformance.
25. The Defendant avers that at the time of the execution of the agreement upon which the
Plaintiff brings this action, it was agreed by and between the said Plaintiff and Defendant that all of
Plaintiff s right, title and interest in the Salvadore Dali print would be transferred to Defendant, the
terms of which agreement were omitted from the aforesaid written agreement by reason that Plaintiff
informed Defendant that the written agreement was irrelevant and that despite the terms of the written
agreement, Plaintiff intended to transfer all of Plaintiffs right, title and interest in the Salvadore Dali
print to Defendant. Accordingly, Defendant raises the defense of oral contract varying written contract.
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26. Paragraphs 44 through 48 of Defendant's Counterclaim sounding in fraud are
incorporated as if fully set forth herein. Accordingly, Defendant raises the defense of fraud.
27. When Plaintiff and Defendant executed the agreement sued upon by Plaintiff, both
Plaintiff and Defendant believed that all of Plaintiffs right, title and interest in the Salvadore Dali print
would be transferred to Defendant and fully intended the right, title and interest to be transferred to
Defendant, but by mistake, the agreement executed by Plaintiff and Defendant transferred all of
Defendant's right, title and interest in the Salvadore Dali print to Plaintiff. Accordingly, Defendant
raises the defense of mutual mistake.
28. The agreement drafted and sued upon by Plaintiff is unfair, oppreSSive, violated
Defendant's reasonable expectations and reveals a gross disparity in the property settlement between
Plaintiff and Defendant. Accordingly, Defendant raises the defense of unconscionability.
COUNTERCLAIM I
Elwood F. Bakerv. Nancy A. Baker
Breach of Written Contract
29. Paragraphs I through 28 of Defendant's Answer with New Matter and Counterclaims
are hereby incorporated as if fully set forth herein.
30. On July 13, 1994, Plaintiff and Defendant entered into a contract in writing, entitled
"SETTLEMENT AGREEMENT", a copy of which is attached as Exhibit 1.
31. The Settlement Agreement provided, in relevant part, on page five (5) under the subtitle
"PERSONAL PROPERTY":
"Wife also hereby transfers to Husband all of her right, title and interest in and to tools
located at the marital residence, which Wife agrees to store at the marital residence. Wife
further agrees to surrender said tools to Husband upon demand."
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32. Defendant repeatedly demanded that Plaintiff surrender the tools to Defendant.
33. Despite Defendant's repeated demands, Plaintiff failed and refused to surrender the
tools to Defendant.
34. Plaintiffs failure and refusal to surrender the tools to Defendant constituted a material
breach of the Settlement Agreement.
35. As a result of Plaintiffs material breach of the Settlement Agreement, Defendant has
sustained a loss in excess oftwelve thousand dollars ($12,000.00).
36. Page four (4) of the Settlement Agreement under the subtitle "Attorneys' Fees for
Enforcement" provides as follows:
"[T]he breaching party will pay all attorneys' fees, court costs and expenses
(including interest and travel costs if applicable) which are incurred by the other
party in enforcing this Agreement, whether enforcement is ultimately achieved by
litigation or by amicable resolution."
37. In addition to Defendant's actual damages, Defendant has incurred attorneys fees, court
costs and expenses in enforcing the Settlement Agreement.
WHEREFORE, Plaintiff demands judgment in excess of twelve thousand dollars ($12,000.00),
plus interest, court costs, attorneys fees, and any other relief that the Court deems necessary or
appropriate.
COUNTERCLAIM II
Elwood F. Baker v. Nancy A. Baker
Breach of Oral Contract
38. Paragraphs I through 37 of Defendant's Answer with New Matter and Counterclaims
are hereby incorporated as if fully set forth herein.
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39. Defendant avers that at the time of the execution of the agreement upon which the
Plaintiff brings this action, it was agreed by and between Plaintiff and Defendant all of Plaintiff s right,
title and interest in the Salvadore Dali print would be transferred to Defendant.
40. Defendant repeatedly demanded that Plaintiff surrender the Salvadore Dali print to
Defendant.
41. Despite Defendant's repeated demands, Plaintiff failed and refused to snrrender the
Salvadore Dali print to Defendant.
42. Plaintiffs failure and refusal to snrrender the Salvadore Dali print to Defendant
constituted a material breach of the oral agreement.
i
43. As a result of Plaintiffs material breach of the oral agreement, Defendant believes, and
therefore avers, that he has sustained a loss within the limits of mandatory arbitration in Cumberland
County.
WHEREFORE, Plaintiff demands judgment within the limits of mandatory arbitration in
Cumberland County, plus interest, court costs and any other relief that the Court deems necessary or
appropriate.
COUNTERCLAIM III
Elwood F. Baker v. Nancy A. Baker
Fraud
44. Paragraphs I through 43 of Defendant's Answer with New Matter and Counterclaims
are hereby incorporated as if fully set forth herein.
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45. Defendant avers that the Plaintiff, with intent to deceive and defraud Defendant, falsely
represented to the Defendant that Plaintiff intended to transfer all of Plaintiff s right, title and interest
in the Salvadore Dali print to Defendant.
46. Defendant avers that the Plaintiff, with further intent to deceive and defraud Defendant,
falsely represented to the Defendant that the written agreement was irrelevant and that despite the terms
of the written agreement, Plaintiff intended to transfer all of Plaintiff s right, title and interest in the
Salvadore Dali print to Defendant.
47. Defendant avers that he believed the Plaintiff s statements as to the Salvadore Dali print
and in reliance thereon signed the agreement.
48. Defendant avers that Plaintiff at no time intended to transfer all of her right, title and
interest in the Salvadore Dali print to Plaintiff but instead intended to fraudulently induce him to sign
the agreement transferring all of Defendant's right, title and interest in the Salvadore Dali print to
Defendant.
49. As a result of Plaintiffs fraud, Defendant believes, and therefore avers, that he has
sustained a loss within the limits of mandatory arbitration in Cumberland County.
50. In addition to Defendant's actual damages, Defendant has incurred attorneys fees, court
costs and expenses in enforcing the Settlement Agreement.
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WHEREFORE, Plaintiff demands judgment the limits of mandatory arbitration in Cumberland
County, plus interest, court costs, attorneys fees, and any other relief that the Court deems necessary or
appropriate.
Respectfully Submitted,
Dated:
~ ;l.O~ J~6od
,/
Law Offices of Herbert Corky Goldstein, Esq.
JiiE:{hD~/cr-
Identification No. 7182
204 State Street
P.O. Box 10463
Harrisburg, Pennsylvania 17105-0363
(717) 236 - 6491
Attorney for Defendant
By:
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IN THE COURT OF COMMON PLEAS OF THE 59TH JUDICIAL DISTRICT OF PENNSYLVANIA
COUNTY BRANCH - CAMERON
El.'lood F. Bake r , ) C1n.l Accion - Law
)
Plainciff ) Case No. 94-2913
) L'{ DIVORCE
va. )
)
Nancy A. Baker, )
)
Defendant. )
SErILEl1EN! AGREEMENr
THIS AGREEMENT, made tb1s f.:Jd day Of~' 1994 by
and bet:W'ee11 N41ICY llaker (here1uafter referred to &4 Vii .) and E1v009.
Balcer (hereinafter referred to as "HusbaudW), .
tlitoo$$ech;
WHEREAS, the parties hereto are Husband and Wife, haVing been
l4'Ifnlly joined 1n mardllf>e on April. 19, 1969 1n Ho1l1daysburg,
PenDsy1vania.
tmEREAS, diverse unhappy differences, dhputes and difficulties
have arisen betveen the pacies and it is t.heir int:ent:ioll to institute
.u.vorce proceedings, and the parties hereto a.."'e desirous of settliIlg .
cOlllpletely and finall.y the economic and other righta and obligations
bet:oreen each ot.her iacl.ad1ng, vit:hout: 1.1m1tation: the ownership and
equitable distribution of lisarit:a1 property; the fut:ure support and! or
aa111teoance of either of thela; and in general, any and all ot.her claims
and possible cla.iJ:ls by ODe against. t:he other or against their respective
est:ates.
NOll, 11lER.iU'0ltE, '.life and Husband, each intending to be legally
bound hereby, agree as follows:
GENUAL
AGREZliENT NOT A llAR TO DIVORCE PROCEEDINGS
. ..," This Agreement: shall not be considered 1:0 affect or bar the
right of VUe or Husband to a divorce. The parties intend to secure a
mutual consent, no-fault divorce pursuant co the provisions of Sect:ion
201(c) of the Pennsylvania Divorce Code of 1980, as amended.
EFFECT OP DIVORGE DECREE
This Agreement shall continue 1n full force and effect sft:er
such t:iJDe as a. final decree 1n divorce :nay be entered w1th respect: to che
parties.
~hib it A
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AGR.EEMEllT TO BE INCOlU'ORAnn IN DIVORCE DECREE
The terDIs of this Agreement shall be incorporated into any
divorce decree which :IIay be entered with :respect to the parties. The
Court of COlllIlI.on Pleas "hich uy enter such divorce shall retain
contina:l.ug jurisdiction over the patties and the subject matter of the
Agreement for the purpose of enforcelllent of any of the prov1sioaa thereof.
DAn OF EXECUTION
The -cI4te of executiol1- or -execl1tion date- of this agreement
shall be defined as the cl4te apol1 "hich it it executed by the parties if
they haTe each executed the Agreelllel1t on tlMl. ~ date. Otherv.Lse, the
"date of executiol1" or -execuUoa date" of this Agreement shall be
clef1.Ded as the date of executioa by tlMl party last executing the
Agreemeat.
HUTlJAL RELEASES
!%cept as othen1se provided in this Agreemel1t:
a)
Each party hereby and absolutely aad uncolld:ltioaally releasee
aad forever discharges the other aDd the esute of the other for
all purposes frOGl auy and all rights aDd obligations which
either lIlay have or at any time hereafter bave for past, present
or future support or III&1ntenance, alflllony pendente lite,
a11lD.ony, e'luitable distdllution, COlmGeJ. feea, costs, expenses,
e.nd. any other right or obligation, ecoQOlIlic or otherwise,
whether arising out of the 1II4rit&1 relationship or otherw1se,
iucl.l1ding all rights aDd bellefits uuder the Pennsylv&l11a Divorce
'Code of 1980, i.ts supplelllell.ts aM ameo.dlllents, as vell as under
any other law of any other jurisdiction.
b)
Each party hereby absolutely aM uncouditioaally releases aDd .
forever discharges the other and hi. or her heirs, executors,
admil11strators, 48SigllS, property aM eatate frOlll any aDd all
rights, cla11as, delll4lld.s or obligaUous artsing out of or by
virt~ of che marltal ulat10nsbip:of th1l parties or odl~rv.Lse,
"hether Q()V msting or hereafter-ariail18. The above release
shllll be effeetive regardle8s of whether such chiu arise out
of VJ.y former or future acte, contracts, engagemellts or
liabilities of the other or by way of 1I!dow's or vidower'lI
right8, fa1ll1ly e%elIlptiol1 or similar allovance, or under the
intes1:&te law, or the ri3ht to !:ake against the spouse's will, or
the right to treat a lifetime conveyance by the other as
testa1Mlltary, or all other right of a surviving spouse to
participate ill a deceased spouse's estate, whether arisill8 under
the lavs of Penn.sylval11a,. VJ.y state, COlIIIIlOnwealth or territory
of the United States, or any oeher country. The parties each
wi Ve aM release uy alld all right to recei va iusura.nee
proceeds at the death of th4 other, whether as named beneficiary
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or otherwise, as well as auy righe to receive any. legacy.
bequest or residuary prot1011 of the estate of the ocher under
his or her Will (if executed prior to chi uecut10n cUte
hereof). or to act as persoaal representative of the estaee of
ehe other.
c) Except for auy cause of acHoD. for di.voree whieh either parey
11I41 haYe or e1a1lII to MYe, each parcy gives to the other by the
execut10u of this Agreellleo.t an ..bsolute and unconditioD4l
release alld discharge frOCll all causes of action. claus. rights
or dell4ll<ts whatsoever, 10. lav or ill equity, which either party
ever bad or now has aguuet the other.
lIAIVElt OR MODI1ICATION TO BE IN iJRITING
No 1II041f1catioll or waiVer of auy of the te=s hereof shall be
vali4 ullleH 111 vr1t1q and s1gued by both parties and no waiver of &l1Y
breach bereof en' default hereunder sha.ll be deeaed a waiver of _y
aubst!queut default of the Balle or s1al1lar U4ture.
LAli OF PENNSYLVANIA APPLICABLE
th1s agrel!lllellt sball be C01l6t~ in accordance v.1.th the lava of
the COlIIlllOllWealth of l'euuaylvan1a.
AGRm!ENT BL'mING ON H!IllS
Except as othe::wise !ll4y be proYided, thts Agreemellt shall be
biuiiU ng and shall iuur!! to the bea.efit of the part1es bereUJ a1l4 their
res~ct1ve heirs. executors, aduliutstrators, successors and aaeigM.
, INTEGRATION.
Ibis Agrel!lllellt cOlltitutes the entire UDderstaa.ding of the
pardes and supersedes auy and all pr10r agreements and negotiatioDs
bet_u tha. There are 1IO l:epreselltatioDB or varr&o.e1es other than
those eXlI1:essly set forth bere111.
onlER DOCUMENTA:rION
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W1tbtll fifteen (lS) days after demand therefor, the parties will
execute allY &nd all vr1ttell illstrumeuts, assIglllllel1te, releases,
sat.1$f4Ctlo11$, deeds, lIOtu or such other writings as may be reasoaable,
o.ecefsaty or desirable for the proper effeceuatlo11 of this :\greelDene...
NO WAIVER OF DEFAUI;r
Ibis Agrel!lllellt shall relllul1 10. full force and effece unless Bo.d
uut:l.l l:erm1l14ted uDder and pursuant to the term. of ~his Agreement. The
failUre of either party to lDs1&t upon atrict perfol:lllaace of any. of the
prov1s1oQS of this AgreE!llellt shall 10. no way affect the rIght of such
party hereafter to enforce the sa1lle, nor shall the vaiver of 811Y breach
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of =1 provis1ou hereof be cOllStrued as & wa1 ver of allY subsequeut
default of ~he same or si1ll1lar uature. nor sball :1.t be COl18trued U a
waiver of strict perfomanee of any other obligations herein.
ADDRESS OF PARTIES
As 1008 as any obligations remain to be performed pursuant to
the pro'dsioll6 of this Agreemeut, e.aeh party shall. have the affirmative
obligation to keep the other informed of his or her res1deneeaddress.
and .hall prOlllptly notify the other in wr1ting of any change of address
by g1vi08 the new res1denee address.
ENFO!CEMENl' OF ALIMONY F!lQVISIONS
All of the al1l1lOn1 prov1sioDS eonta.1.ned. in thts Agreelllent may be
enforceable by an ac:tiou ill suPport in accordanee with Peunsylvania Rules
of CiY1l Proeed.ure 1910.1 et seq.
llEHEDIES AND SANCTIONS
III 8lMltlon to such other remed1.ea aud sanctiollS available under
appl1cable lav_ the par~les 1II&Y utilize aay remedy or sanctiou set forth
1u the Pena.sy1.w.n1a Divorce Code, as amended, ro enforce any terlll of thi.
Agreement as though it had been an order of Court.
Al'TORllEYS' FEES FOll. ENFOR.CEMENT
111 the eveut that either party breaches any prov!.siou of this
Agreement and the other party retains eouaae1 to &8s1st in enfor<:1ng the
tems thereof. the bTeachiDg party "111. pay all attorneys,' fees, court
casU and expell8es (1nelud108 interest and trave1 east. if appltcab1.e)
vh1ch are illCUtted by the other party iu enforcing this Agreellleut,
whether enforcement 1s ult1mately. a.c:h1eved by l1t1gat10uor by amicab1.e
re.o1utlou. It is the specific aa:r~ement and lutent of the pedes that'.
a breachi08 or vrollgdoill8 party ahal1 bear the obligation of any and all
eosts, ezpellSu and counsel fees :1.nc:urred by tM uonbreach1ng party in
protectll1g and enforciDg his or her rights undet" this Agreement.
HfADINGS NOT PART OJ>ACREEMENT
-e
Any headi08B preced.ill8 the te%t of the several paragrapha and
subparagraphs hereof are inserted solely for convenience of referenee and
shall Mt cOll8itate a part of this Agreement 110r shall they affect' 'its
meaning, cOll8tructiou or effect.
PROPERTY
MONErARY SEXTLZMENI
Huabaad shall pay Wife, in consideration of Wife's full release
of any claims in husbaad' s pension, whieh release will be more fully set
forth below in this Agreemeut, the BUIll of Thirty Thousaad (S30,000)
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dollars, ~o be p<ud in. ~he alIOun~ of Five Hund= dollars ($500) per
Dlon~h each and. every month until the BUIll of $30,000 bas been paid to
Wife. These pa"aents are to COIllllIence on the l.5~h of the first full. lIlOnth
folloving the' entry of the divorce decree betveen llusband. aud Wife and.
are to be paid Oll. the 15th of each and every month thereaf~er. These
payments are not cOllt1ngent on Wife's not remar:ying or not cohabitating
aud these payments are to continue t."egardless of ...hecher Wife a~ sO<Ile
futut."e time cohabitates Yith a Dlsber of the opposite sex or remarries.
Husband also ll$ree& that any 1IIOneys received from Mark Balcer
representing pa:yl1ent On a l~ frOlll the parties to Mark llaker will be
paid. by Husband. as follolfs:
1) All payments are to be paid to 1'0by Baker ullt11 Toby 3aker
h8B received the Sulll of $1000;
2) After Toby Baker has received the SUlI 1)f $1000, Husband
agrees to pay h81f of any and all reouofning payme~ta to Wife.
Wife a.grees that the payment of tsoo pu 1IIOnth in cOlUlHeratioll
of Wife'a :release of her rights in HusOaad's peil4ion are co be taxed as
alimony and chat such amounts 11I&1 be deducted. as altmony by HusOaIld.. All
other 8111<lUOtS paid to Wife by Husbud are not to be deemed or cOllStdered
altmony.
PERSONAL PR.OPERTY
Wife !iereby transfers to Husbaud all of her right. title and
interest in end "Co thOse items of tangible personal property which ~re
not presently lo<:ated at the marital resideoce, 1nelud.ing the fo11oYing:
1) Items of male jewelry
2) Canon AE-1 camara and. camera equipment.
Wife also hereby transfers to Husband all of her right. title
and interest in and to tools l0C4ted at the marital reddence, which Wife
agrees to store a.t the marital residence. Wife further agrees to
surrender sa.id tools to Husband upon demand.
The above-mentioned items. along v:kh aJ.l personal property 110t
currently located at the 1Ilar1tal resid.ence and in the possession of
Husband. shall cOl1Stitute the sole and exclu&1ve propercy of Husband.
"
Husband hereby transfers Co ,Wife .til of his right, title and
interest in and to those items of tangible persoll8l property which are
located at the marital residence, including t:he folloYing: .
1) Furuiture
2) . AppliatICes
3) Antiques
4) Sal va.d.ore Dllli print
5) Items of female jevdry.
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The above-mellt1oued items. along u1:h all other peraollal
prope~ty of lUly Datun located at the uneal residen<le. ex<lepe .for ehe
previously mentioo.ed'too1$, .ball cOll$tituee the sole and eX<llusive
property of ~ife.
Each of the parties hereby specifically releases and vaives any
cla1Ju which he or .she 11I&1 have vith respect to coose ieems of persoual
property hereby erll1l8fered to the other.
REAL ESTATE
Huaband shall1ll4Ke execute aM deliver all dO<lcments iu ehe
usual. fom trauferiag to VUe all of his rights, title aDd interest in
aM eo the real estate know as 906 l'etersburg Road, Carllsle,
PeDayl vania.
'fbe BUd conveyanee shall be free of all liens aad eIlCUlIIbrancea
excepe the lieu of the exbt1US IIlOtea41e .~ shall. be Wider aM subject
to _y <;ovenanu 4114 nctrictloDt of record. Sd.d conveyance shall
i:llclndecl prepaid real esUte tUes aU anr Insdrauee policies covering
the real estate. or pl:O<:ee4. from such poUeilis.
Althoegh Ruahand shall traufer all interest in tbe real estate
of the above-mentioned premises eo Wife, liuaDau4 sgnea to leave his nallle
00. the IIlOrqageof said prelllises until sueh t1me as tbe _regage is paid
in full or the property is aold. Wife hereby guaraneees to 1demu1fy
. Husband aad to' hold him hanlea8 for u.y and all payments dce to.
aceordance with the tems of the lIIOrtgage exbt1us against the real
estate.
The docUlllenC$ conTeyius title to the real estate sball be
. executed by HUI>baD.d u4 dilivered to Vife on 01:' before the date of'
execution of this Agreelllent.
MOtOR VEHICLES
1. Wife shall trallS!er to liusbaud aU of her right, title and
il1t:erest in and to a Toyota Corolla aueOGlO1l>le.
2. Husband ahall tr4I18fer to Wife all of his right. t1tle aJld
interest in and to a 1991 Toyota Caary and a 1966 Che.velle.
"",
SEl' All.ATE ASSETS
,
A. Release. Except.. othervise provided. 10. this Agreement, the
parties hereby agree that u to each of their separate aueta,
as that tem is defined herein, the party not haviUS title to or
possession of any particular separate asset bereby waives,
releases, relinquishes and forever abandons any and all c1&i1ll
there!a., aM acla1o"lecigea that hereafter the party baviUS t1tle
to or possesaion of a separate asset 1s the sole and exelus1 ve
oWtler thereof.
?age 6 of 9
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B. Deflu1tlon: The tem "separate 4saet- is deflued for purposes
of thi. A&nemenc as designaUug a:ad asset of any k1H (1thether
real, per.ooal, lllixed, ullC1b1e or 1utang1ble, iacluc11as s1:~k
and future rights to stock) which is presently titled either !11
the sole Dallle of a party hereto or joiutly deh Otle of the
partle. hereto alld a eh1rd part,. or partles. The tera also
lucl.udea P11 W1t1tled &Sset which is presel1tly in the sole
poeaeaB1ou of o~ of the p4rties here.to.
c. Illdeauuf1<:atlon 3S to expenses: The parties agree to iHeam1fy
aDd ho14 Olle another harmless frOlll any llability, coat or
ezpell.8e, lDclw1ill8 aetotueys' fees ancl iuterest. which DIy be In
the flmlre 1ueurred w1th respect to their separate assets .as
defined herdu.
R.ErL1U:ME!fr BENEiITS
-Wife and Husbe.lld hereby speciflcally release aad valve tmy and
all intereat, c1A:1Jr1 Qr right t9at she or he ay haTe to any and all
ret1raent beDeflt. (f~]~1ing pe:usloa or profit sharing beaefits) or
other s1rll1lar benefits of tbe other party. ne. parties, further -
ac:moorleqe a1ld agree 1:bat they shall. execute' u'J doc_l1u tbat lIl&.y be
required frOlll t1meto tie to accolllpl1sh the purposes of this Paragraph.
AfTER,-ACQt1IBED PROPERIY
Eac:b of the parties sball hereafter ovn aud eujoy. 1.1l4epeucleutly
of any el.a1aI or nght of tbe other, all property acquired by h1IIl or her
steer tbe execation of this Agreement, with full power in hila or her to
dispose of the _ as, though he or she vere unmarried.
EXIStING Ao'lD FUTURE OBLICA1'IONS
Husband aDd Wife have spedfie8.lly agreed that the debts l1sted
below W1U be paid as follows:
1) Husband aareU to pay in full 811Y charges previously
lucutredor illCUUed 111 the futul:e"oD the MODtgOlllel:y 'Ward's,
Discover, and DUCU charge carda &:tlrrell.tly issued in the _s
of both partie&. Husband uso agrees to pay in full a peraol1Bl.
10811 with the DAYClJ.
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2) Wile a1Id I11l8b~1I1d agree that each 11:1.11 pay in full 8111..
charges p.reV1ou.ly 1tlcurred or incurred ill. the future ou the
charge ea:rds issued 111 each parties' iw11vidual naae atld that
the party "hose DaM does llot appear Oll the charge card v1ll l10t
l1able for any charges incurred 011. the card issued in the IIlIlIIe
of the other party.
Each party represellts aDd agrees that he or she has DOt
heretofore contracted for any debt, llability or ob11gatlol1 iU(:luding
those for which the other or the estate of the other lII.ay be respotl8ible
Fag.. 7 of 9
. ,
or l:1able _cept as disclosed or otherwise 1I1:0'114ed for 11l this
Agreement. Hueband aIl4 Wife each qt"ee co save baDlle88 and 1114ezm1.fy
the ocher &114 the ellu.t:e of t:he. other from all such debts, l:1ab111t1ea
and ohl.13atloQS vh1ch he or she has 11lCurred whether prior to or after
the executloD. date hereof.
Each .parey has earefully read aDd fully cOlISidered this
Agreement aIl4 all of the lItatemente, ter1lS, eoo4itiollB and proVislons
thereof prior to 81gDing belovo
IN' Wl'tNESSllBEREOF J the parties hereto bave executed this
Agreemellt Oil the day and year fir8t written above.
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Page 8 of 9
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COMMoNWEALtH OF PENNSYLVANIA :
: $B.
COllNTY' OF (".1 lm~(aQ(Ai\\(\
On this, ehe }3 TJJ- day of .;::-\1 J k 'fr,' 1994, before me a Noeuy
Public for the COlIIlIlouvealth of Pennsylvania. resid1ng 1n the County
of(\ 11'\~L.Yl() , pereoully appeared Naney A. Baker, known to me eo be
ehe person whose _ 1s subacr1bed to the ntb1n Agreement and
acknowledged that she uecuted the sallie for ehe pu~ses therein
Cotltaiaed.
IN WIl"HESS WElEOF, I haTe hereunto set lilY halId &Dd official.
seal.
NOTARIAL SEAL Not
Judith Ann Valenlina. Notary Public
Carlisle. CumbBrland County
My Commission Expires Nov. 12. 1994 .
COMMONWF.ALTIl. OF PENNSn.VAHIA
.
.
: ss.
COUN1Y OF ~ 1M \')I:l\'li...ANO
On ehis, the r31J! day of c::i>1-~, 1994, before me a Yotat:y
Public for the CoamollVweh of l'ennsylval11a residIng 1Il the County
of 011lMlbb'itLA/\.l(), personally appeared Elwod P. Baker, known to me to be
the pergon vIleee - is subacribed to the Mthill Agreelllent and
.
acknowledged that he execueed the same for the purposes therein
conuuned.
IN liI!'NESS WHEREOF. I havehereuuto set IfZY halId aud official.
seal.
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NOTARiAL SEAL
Judith Ann Valentine, Notary Publi
Carlisle, Cumberland County
My Commission Expires Nov. 12, 1994
Page 9 of 9
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VERIFICATION
I, Elwood F. Baker, hereby certify that the facts set forth in the following Amended Answer are
based upon information which I have furnished to counsel, as well as upon information which has been
gathered by counsel and/or others acting on my behalf in this matter. The language in the Amended
Answer is that of counsel and not my own. I have read the Amended Answer, and to the extent it is
based upon information that I have given to counsel, it is true and correct to the best of my knowledge,
information and belief. To the extent that the content ofthe Amended Answer is that of counsel, I have
relied upon counsel in making this Verification. I hereby acknowledge that the facts set forth in the
aforesaid Amended Answer are made subject to the penalties of 18 Pa.C.S.A. ~4904 relating to
unsworn falsification to authorities.
Dated:
/ ~ftt' bt'"c>
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Elwood F. Baker
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NANCY A. BAKER,
Plaintiff,
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: CIVIL DIVISION
ELWOOD F. BAKER,
Defendant.
: NO. 00-7903 Civil
CERTIFICATE OF SERVICE
I, Herbert Corky Goldstein, Esquire, attorney for Defendant, Elwood F. Baker, hereby certify
that I this day served a copy of the foregoing Amended Answer upon the person(s) indicated below by
depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania,
and addressed as follows:
Gregory 1. Cutler, Esq.
50 East High Street
Carlisle, Pennsylvania 17013
Respectfully Submitted,
Dated: _~, J..O/f..,<<.oao
/
Law Offices of Herbert Corky Goldstein, Esq.
By: o?~1~
~O:.;& GOLDSTEIN, ESQ.
Identification No. 7182
204 State Street
P.O. Box 10463
Harrisburg, Pennsylvania 17105-0363
(717) 236 - 6491
Attorney for Defendant
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NANCY A. BAKER,
Plaintiff,
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: CIVIL DIVISION
ELWOOD F. BAKER,
Defendant.
: NO. 00-7903 Civil
PRAECIPE
TO THE PROTHONOTARY:
Pursuant to the attached certificate of concurrence, please remove the above referenced matter
from the January 3, 2001, Argument Court list.
Respectfully Submitted,
Law Offices of Herbert Corky Goldstein, Esq.
Dated:
Ik ~
J..d 1. OC(J
. )
By:
DSTEIN'ESQ~
HERBERT CORKY
Identification No. 7182
204 State Street
P.O. Box 10463
Harrisburg, Pennsylvania 17105-0363
(717) 236 - 6491
Attorney for Defendant
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CERTIFICATE OF CONCURRENCE
I, Herbert Corky Goldstein, Esquire, do hereby certify that I have contacted Gregory 1. Cutler,
Esquire, counsel for Plaintiff Nancy A. Baker, and was informed that he did concur in the removal of
the above referenced matter from the January 3, 2001, Argument Court list.
Dated:
A<)O~?OOd
~&~
erbert Corky ~dstein, Esquire
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NANCY A. BAKER,
Plaintiff,
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: CIVIL DIVISION
ELWOOD F. BAKER,
Defendant.
: NO. 00-7903 Civil
CERTIFICATE OF SERVICE
I, Herbert Corky Goldstein, Esquire, attorney for Defendant, Elwood F. Baker, hereby certify
that I this day served a copy of the foregoing Praecipe upon the person(s) indicated below by depositing
a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, and
addressed as follows:
Gregory 1. Cutler, Esq.
50 East High Street
Carlisle, Pennsylvania 17013
Respectfully Submitted,
Law Offices of Herbert Corky Goldstein, Esq.
Dated: J.lk ~d fJ.. , lUlj
/
By:
~~~~
ERT Y GOLDSTE , E .
Identification No. 7182
204 State Street
P.O. Box 10463
Harrisburg, Pennsylvania 17105-0363
(717) 236 - 6491
Attorney for Defendant
3
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NANCY A. BAKER,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL DIVISION
v.
: No. 00-7903 Civil
ELWOOD F. BAKER,
Defendant
PLAINTIFF'S ANSWER TO DEFENDANT'S NEW MATTER
AND COUNTERCLAIMS
19. Denied. The Plaintiff did not inform the Defendant that the Attorney handling the
divorce had prepared the Property Settlement Agreement, or that it was balanced, fair, and
required under the law. By way of further answer, the Defendant was the Plaintiff in the Divorce
Action and retained the Attorney handling the divorce, therefore, he knew, or should have
known, that said Attorney did not prepare the agreement, and that an agreement was not required
under the law.
20. Denied. The Plaintiff never informed the Defendant what Christina Gill
(Roseman) thought of the agreement.
21. Denied. The Plaintiff avers that the Defendant signed the agreement because the
terms were very favorable to him.
22. Denied. Christina Gill (Roseman) faxed a Property Settlement Agreement form to
the Plaintiff and the Defendant to aid them in preparation of the agreement. The Plaintiff and
Defendant reviewed the form and made agreed upon changes, which were then faxed to Christina
Gill (Roseman) to type so that it could be formalized as a Property Settlement Agreement. The
terms agreed upon are accurately represented in Plaintiffs Exhibit "A".
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23. Denied. The Plaintiff did not deceive the Defendant, and the agreement is very
favorable to the Defendant.
24. Denied. The Defendant obtained his tools in accordance with the agreement and
traded them for a waterbed owned by James E. Garrick. In addition, the tools were not worth
$12,000.
25.
Denied. The Plaintiff never agreed to transfer the Salvadore Dali Print to the
Defendant, and never represented that the written agreement was irrelevant. In addition, the
agreement provides on page 3 that all waivers or modifications are to be in writing, therefore,
this defense is barred by the Parol Evidence Rule.
26. Denied. Plaintiffs answer to paragraphs 44-48 are incorporated herein by
reference. This is a conclusion of law which requires no response. Proof is demanded at trial.
27. Denied. The agreement embodies the terms which the Plaintiff and Defendant
intended. The Plaintiff never intended to transfer the Salvadore Dali Print to the Defendant,
therefore, there is not a mutual mistake.
28. Denied. The Plaintiffs answer to Paragraph 21 is incorporated herein by
reference. This is a conclusion of law which does not require an answer. Proof is demanded at
trial.
29. Denied. An answer is not required.
30. Admitted. To the extent that Defendant's Exhibit I coincides with Plaintiffs
Exhibit "A".
ii
31. Admitted.
32. Denied. Defendant never demanded surrender of the tools. Plaintiffs answer to
Paragraph 24 is incorporated herein by reference.
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33. Denied. Plaintiffs answer to Paragraph 32 is incorporated herein by reference.
34. Denied. This is a conclusion of law which does not require a response. Proof is
demanded at trial.
35. Denied. This is a conclusion of law which does not require a response. Proof is
demanded at trial.
36. Admitted in part Denied in Part. The applicable Paragraph provides as follows:
" In the event that either party breaches any provision of this Agreement and the
other party retains counsel to assist in enforcing the terms thereof, the breaching
party will pay all attorney's fees, court cost and expenses (including interest and
travel cost if applicable) which are incurred by the other party in enforcing this
Agreement, whether enforcement is ultimately achieved by litigation or by
amicable resolution. It is the specific Agreement and intent of the parties that a
breaching, or wrong doing party shall bear the obligation of any and all cost,
expenses and counsel fees incurred by the non-breaching party in protecting and
enforcing his or her rights under this Agreement".
3 7. Denied. This is a conclusion of law which does not require a response. Proof is
demanded at trial.
38. An answer is not required.
39. Denied. Paragraphs 25 and 27 of the Plaintiffs answer are incorporated herein by
reference.
40. Denied. The Defendant never demanded that the Plaintiff surrender the Salvadore
Dali print to the Defendant. The Salvadore Dali Print is the property of the Plaintiff pursuant to
the Agreement.
41. Denied. The Plaintiff s answer to Paragraph 40 is incorporated herein by
reference.
42. Denied. This is a conclusion of law which does not require a response. Proof is
demanded at trial.
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43. Denied. Paragraphs 40-42 are incorporated herein by reference.
44. An answer is not required.
45. Denied. Plaintiffs answer to Paragraphs 25,27, and 40 are incorporated herein by
reference.
46. Denied. The Plaintiffs answer to Paragraph 45 is incorporated herein by
reference.
47. Denied. The Plaintiffs answer to Paragraph 21 is incorporated herein by
reference.
48. Denied. The Plaintiffs answer to Paragraphs 45 and 47 are incorporated herein
by reference.
49. Denied. This is a conclusion of law which does not require a response. Proof is
demanded at trial.
50. Denied. This is a conclusion of law which does not require a response. Proof is
demanded at trial.
WHEREFORE, the Plaintiff demands judgement upon the Defendant, and all relief
deemed appropriate.
THE LAW OFFICES OF PAUL BRADFORD ORR
DATE) ij /0 I
BY:
1:zL~{?L
Attorney for Plaintiff
Supreme Court ID # 73471
50 East High Street
Carlisle, PA 17013
(717) 258-8558
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VERIFICATION
I verify that I am the Plaintiff and that the statements made in the foregoing
Plaintiffs Answer to Defendant's New Matter and Counterclaims are true and correct. I
understand that false statements herein are made subject to the penalties of Pa. C.S. S
4904, relating to unsworn falsification to authorities.
DATE: 0/ - 09 -dOcJ/
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'- cy ~aker
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this date a true and correct copy ofthe foregoing
Plaintiffs Answer to Defendant's New Matter, and Counterclaims was served by regular, first-
class U.S. Mail, postage prepaid, upon the following:
Herbert Corky Goldstein, Esquire
204 State Street
PO Box 10363
Harrisburg, POA 17105-0363
Date: //9/01
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NANCY A. BAKER,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: CIVIL DIVISION
: JURY TRIAL DEMANDED
: No. 00-7903 Civil
ELWOOD F. BAKER,
Defendant
AMENDED COMPLAINT
The Plaintiff, Nancy A. Baker, by and through her attorneys, the Law Offices of Paul
Bradford Orr, with consent of the Defendant's Counsel, which is attached hereto, respectfully
amends her complaint as follows:
51. Paragraphs 1-13 and 15-18 of the Plaintiff s Complaint are incorporated herein by
reference.
52. Pursuant to 23 Pa. C.S.A. S 3105 (c) a provision of an agreement between the
parties regarding the disposition of counsel fees or expenses shall not be subject to modification
by the court.
53. Page five (5) ofthe Settlement Agreement (hereinafter the Agreement), marked as
Plaintiff s Exhibit "A" of the Plaintiff s Complaint, under the heading of Personal Property
provides that the Husband (Elwood F. Baker, Defendant) transfer all his right, title, and interest
in the Salvadore Dali print to the Wife (Nancy A. Baker, Plaintiff).
54. Page six (6) of the Agreement under the heading of Motor Vehicles provides that
the Husband transfer all his right, title, and interest in the 1966 Chevrolet Chevelle to the Wife.
55. Page three (3) of the Agreement under the heading Other Documentation provides
that the parties will execute all documents necessary to effectuate the Agreement.
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56. The Defendant has not executed the documents necessary to transfer his right,
title, and interest in the Salvador Dali Print and the 1966 Chevrolet Chevelle to the Wife.
57. The Defendant's failure to execute the documents necessary to transfer his right,
title and interest in the Salvadore Dali Print and the 1966 Chevrolet to the Wife constitutes a
breach of contract.
WHEREFORE, Plaintiff demands judgement against the Defendant for compensatory
damages, interest, and attorney's fees, plus all other damages, court costs, expenses, and relief
that this Court deems appropriate.
COUNT II - FRAUD
58. Paragraphs 1-3 of the Plaintiff's Complaint are incorporated herein by reference.
59. Page four (4) and five (5) of the Agreement under the heading Monetary
Settlement provides that the Husband will pay Wife the sum of thirty thousand ($30,000) dollars
in consideration of Wife' s full release of any claims in Husband's pension.
60. The Husband represented to the Wife that thirty Thousand ($30,000) dollars was
an accurate reflection of her interest in his pension.
61. The Defendant knew, or should have known, that thirty thousand ($30,000)
dollars was not an accurate reflection of her interest in his pension.
62. The Defendant did not fully or fairly disclose to the Plaintiff the value of his
pension.
63. The Plaintiff relied on the misrepresentations of the Defendant concerning the
value of his pension to her detriment.
64. The Defendant's actions constitute fraud.
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WHEREFORE, Plaintiff demands judgement against the Defendant for
compensatory and punitive damages, interest, and attorney's fees, plus all other damages, court
costs, and expenses, and relief that this Court deems appropriate.
COUNT III - MISREPRESENTATION
65. Paragraphs 58-64 ofthe Plaintiffs Amended Complaint are incorporated herein by
reference.
66. The Defendant's actions constitute a material representation.
WHEREFORE, Plaintiff demands judgement against the Defendant for compensatory
and punitive damages, interest, and attorney's fees, plus all other damages, court costs, and
expenses, and relief that this Court deems appropriate.
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NANCY A. BAKER,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL DIVISION
v.
: No. 00-7903 Civil
ELWOOD F. BAKER,
Defendant
CONSENT TO ALLOW THE PLAINTIFF
TO AMEND THE COMPLAINT
1. Pursuant to Pa. RC.P. No. 1033 undersigned counsel gives consent
to the Plaintiffto file an Amended Complaint.
D"" ~ 4-t~) ~DOI
Herbert Corky Goldste' ,Esquire
Identification No. 7182
204 State Street
P.O. Box 10463
Harrisburg, Pa. 17105-0363
(717) 236-6491
Attorney for Defendant
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this date a true and correct copy of the foregoing
Amended Complaint was served by regular, first-class U.S. Mail, postage prepaid, upon the
following:
Herbert Corky Goldstein, Esquire
204 State Street
PO Box 10363
Harrisburg, POA 17105-0363
Date: lid-. ~I
r1- ,
VERIFICATION
I verify that I am the Plaintiff and that the statements made in the foregoing
Amended Complaint are tr.ue and correct. I understand that false statements herein are
made subject to the penalties of Pa. C.S. ~ 4904, relating to unsworn falsification to
authorities.
DATE: ()/ - .2.2 - {} /
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NANCY A. BAKER,
Plaintiff,
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: CIVIL DIVISION
ELWOOD F. BAKER,
Defendant.
: NO. 00-7903 Civil
NOTICE
TO: Nancy A. Baker,
C/O Gregory 1. Cutler, Esq.
50 East High Street
Carlisle, Pennsylvania 17013.
YOU ARE HEREBY NOTIFIED that the Preliminary Objections set forth herein contain
averments against you to which you are required to respond within twenty (20) days after service
thereof or a judgment may be entered against you.
Law Offices of Herbert Corky Goldstein, Esq.
Dated: ~ 2) .2,.)
By:
J1'~~ ~ ~
HER)3ERT CO y' GOLDSTBN, ES .
Identification No. 7182
204 State Street
P.O. Box 10463
Harrisburg, Pennsylvania 17105-0363
(717) 236 - 6491
Attorney for Defendant
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NANCY A. BAKER,
Plaintiff,
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: CIVIL DIVISION
ELWOOD F. BAKER,
Defendant.
: NO. 00-7903 Civil
DEFENDANT ELWOOD F. BAKER'S PRELIMINARY OBJECTIONS
TO PLAINTIFF'S AMENDED COMPLAINT
AND NOW comes Defendant, Elwood F. Baker, by and through his attorney, Herbert Corky
Goldstein, Esquire, to file the following Preliminary Objections against Plaintiff Nancy A. Baker's
Amended Complaint:
I. Preliminary Objection in the Nature of a Motion to Strike
Plaintiff's requests for punitive damages in Count II and Count
III of Plaintiff's Amended Complaint for reasons of Legal
Insufficiency (Demurrer) and/or Failure of Pleading to Conform
to Law.
I. Plaintiff demands judgment for punitive damages in Count II and Count III of her
Amended Complaint.
2. Punitive damages are recoverable from an adverse party only if that party's conduct
was malicious, wanton, willful, oppressive, or exhibited a reckless indifference to the rights of
others. They are not recoverable solely for a breach of conduct. Johnson v. Hvundai Motor
America, _ Pa.Super. _, 698 A.2d 631, 639 (1997).
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3. A preliminary objection on the ground of legal insufficiency in the nature of a
demurrer is to be sustained and the pleading dismissed when the law is clear that no recovery is
possible.
4. Plaintiffs Amended complaint fails to allege facts sufficient to show that a recovery
of punitive damages is possible.
5. Under and pursuant to Pa.R.C.P. 1028(a)(4) and 1028(a)(2), Defendant Elwood F.
Baker moves the Court for an order dismissing Plaintiffs claims for punitive damages in Count II
and Count III of her Amended Complaint.
WHEREFORE, Defendant Elwood F. Baker respectfully requests this Court to strike
Plaintiff's claims for punitive damages in Counts II and III of her Amended Complaint for legal
insufficiency and/or failure of pleading to conform to law.
II. Preliminary Objection in the Nature of a Motion to Strike Count
III of Plaintifrs Amended Complaint for Legal Insufficiency
(Demurrer) and/or Insufficient Specificity
6. In Count III of her Amended Complaint, Plaintiff alleges that "Defendant's actions
constitute a material representation." (Amended Complaint, '166).
7. Under Pennsylvania law, no such cause of action exists for a material representation.
8. Alternatively, Plaintiffs Amended Complaint fails to specify what actions
constituted the alleged material representation. As such, Defendant is unable to ascertain from the
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Amended Complaint, in its present state, the nature of the material representation claim asserted
with sufficient precision to prepare a responsive pleading.
9. Under and pursuant to Pa.R.C.P. 1028(a)(4) and 1028(a)(3), Defendant Elwood F.
Baker moves the Court for an order dismissing Count III of Plaintiffs Amended Complaint on the
ground that Plaintiff has failed to state a cause of action, or alternatively failed to plead the cause of
action with sufficient specificity to enable Defendant to prepare a responsive pleading to the alleged
claim.
WHEREFORE, Defendant Elwood F. Baker respectfully requests this Court to strike Count
III of Plaintiffs Amended Complaint for legal insufficiency and/or insufficient specificity in the
pleading.
Ill. Preliminary Objection in the Nature of a Motion to Strike Count
II of Plaintiff's Amended Complaint for Insufficient Specificity
10. Plaintiff alleges in Count II of her Amended Complaint that the Defendant did not
fully or fairly disclose the value of his pension and that this alleged action constitutes fraud.
(Amended Complaint, '162).
II. Under Pa.R.C.P. 1019(b) Plaintiff is required to plead averments of fraud with
particularity.
12. Plaintiff fails to specifY what Defendant claimed the true value of his pension was.
13. Plaintiff fails to specifY what the true value of the Defendant's pension was at the
time that these alleged actions occurred.
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14. Pa.R.C.P. 1019(f) requires that averments of time, place and items of special damage
be specifically stated.
15. Plaintiff fails to specifY when or where Defendant failed to fully disclose the value of
his pension.
16. As such, Defendant is unable to ascertain from the Amended Complaint, in its
present state, the nature of the claim asserted with sufficient precision to prepare a responsive
pleading to this allegation.
17. Under and pursuant to Pa.R.C.P. 1028(a)(3), Defendant Elwood F. Baker moves this
Court for an order striking Count II of Plaintiffs Amended Complaint for failure to plead with
sufficient specificity to enable Defendant to prepare a responsive pleading to the alleged claim.
WHEREFORE, Defendant Elwood F. Baker respectfully requests this Court to strike Count
II of Plaintiffs Amended Complaint for insufficient specificity in the pleading.
Respectfully Submitted,
Law Offices of Herbert Corky Goldstein, Esq.
Dated: ~. ~I!:l ~O'O I
By:
~~ Jid..t4. ~J6
HERBERT CORK dOLDSTEIN,~Q~
Identification No. 7182
204 State Street
P.O. Box 10463
Harrisburg, Pennsylvania 17105-0363
(717) 236 - 6491
Attorney for Defendant
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.. T II
NANCY A. BAKER,
Plaintiff,
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: CIVIL DIVISION
ELWOOD F. BAKER,
Defendant.
: NO. 00-7903 Civil
CERTIFICATE OF SERVICE
I, Herbert Corky Goldstein, Esquire, attorney for Defendant, Elwood F. Baker, hereby certify
that I this day served a copy of the foregoing Preliminarv Objections upon the person(s) indicated
below by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg,
Pennsylvania, and addressed as follows:
Gregory 1. Cutler, Esq.
50 East High Street
Carlisle, Pennsylvania 17013
Respectfully Submitted,
Dated: ~ ~ ~ -;JOOI
I
Law Offices of Herbert Corky Goldstein, Esq.
By ~ffJ,~~
HERBERT CORK! GOLDSTEIN, ESQ.
Identification No. 7182
204 State Street
P.O. Box 10463
Harrisburg, Pennsylvania 17r05-0363
(717) 236 - 6491
Attorney for Defendant
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NANCY A. BAKER,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: CIVIL DIVISION
: JURY TRIAL DEMANDED
: No. 00-7903 Civil
ELWOOD F. BAKER,
Defendant
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the
following Complaint, you must take action within twenty (20) days after this Complaint and
Notice are served, by entering a written appearance personally or by attorney and filing in
writing with the Court your defenses or objections to the claims set forth against you. You are
warned that if you fail to do so, the case may proceed without you and a judgment may be
entered against you by the Court without further notice for any money claimed in the Complaint
or for any other claim or relief requested by the Plaintiff. You may lose money or property or
other rights important to you.
YOU SHOULD TAKE 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
Phone: (717) 249-3166
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NANCY A. BAKER,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: CIVIL DIVISION
: JURY TRIAL DEMANDED
: No. 00-7903 Civil
ELWOOD F. BAKER,
Defendant
SECOND AMENDED COMPLAINT
The Plaintiff, Nancy A. Baker, by and through her attorneys, the Law Offices of Paul
Bradford Orr, with consent of the Defendant's Counsel, which is attached hereto, respectfully
amends her complaint as follows:
51. Paragraphs 1-13 and 15-18 of the Plaintiffs Complaint are incorporated herein by
reference.
52. Pursuant to 23 Pa. C.S.A. S 3105 ( c) a provision of an agreement between the
parties regarding the disposition of counsel fees or expenses shall not be subject to modification
by the court.
53. Page five (5) of the Settlement Agreement (hereinafter the Agreement), marked as
Plaintiffs Exhibit "A" of the Plaintiffs Complaint, under the heading of Personal Property
provides that the Husband (Elwood F. Baker, Defendant) transfer all his right, title, and interest
in the Salvadore Dali print to the Wife (Nancy A. Baker, Plaintiff).
54. Page six (6) of the Agreement under the heading of Motor Vehicles provides that
the Husband transfer all his right, title, and interest in the 1966 Chevrolet Chevelle to the Wife.
55. Page three (3) of the Agreement under the heading Other Documentation provides
that the parties will execute all documents necessary to effectuate the Agreement.
1 I
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56. The Defendant has not executed the documents necessary to transfer his right,
title, and interest in the Salvador Dali Print and the 1966 Chevrolet Chevelle to the Wife.
57. The Defendant's failure to execute the documents necessary to transfer his right,
title and interest in the Salvadore Dali Print and the 1966 Chevrolet to the Wife constitutes a
breach of contract.
WHEREFORE, Plaintiff demands judgement against the Defendant for compensatory
damages, interest, and attorney's fees, plus all other damages, court costs, expenses, and relief
that this Court deems appropriate.
COUNT II - FRAUD
58. Paragraphs 1-3 ofthe Plaintiffs Complaint are incorporated herein by reference.
59. Page four (4) and five (5) ofthe Agreement under the heading Monetary
Settlement provides that the Husband will pay Wife the sum ofthirty thousand ($30,000) dollars
in consideration of Wife's full release of any claims in Husband's pension.
60. During negotiation of the Agreement the Husband represented to Wife that thirty
thousand ($30,000) dollars was an accurate reflection of her interest in his pension.
61. The Defendant knew, or should have known, that thirty thousand ($30,000)
dollars was not an accurate reflection of her interest in his pension.
62. The Defendant did not fully or fairly disclose to the Plaintiffthe value of his
pension.
63. The Plaintiff relied on the misrepresentations of the Defendant concerning the
value of his pension to her detriment.
64.
The Defendant's actions constitute fraud.
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WHEREFORE, Plaintiff demands judgement against the Defendant for
compensatory and punitive damages, interest, and attorney's fees, plus all other damages, court
costs, and expenses, and reliefthat this Court deems appropriate.
THE LAW OFFICES OF PAUL BRADFORD ORR
J-/JJ/o 1
BY:
/a /CiL
Greg~tler
50 East High Street
Carlisle, PA 17013
ID # 73471
(717) 258-8558
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VERIFICATION
I verifY that I am the Plaintiff and that the statements made in the foregoing
Arnended Complaint are true and correct. I understand that false statements herein are
made subject to the penalties of Pa. C.S. S 4904, relating to unsworn falsification to
authorities.
DATE: jd -c1 c2 -0/
'~:!'1 ,~ " . ~ ~~
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this date a true and correct copy ofthe foregoing
Amended Complaint was served by regular, first-class U.S. Mail, postage prepaid, upon the
following:
Herbert Corky Goldstein, Esquire
204 State Street
PO Box 10363
Harrisburg, POA 17105-0363
Date: "" J/J;;-/v I
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NANCY A. BAKER,
Plaintiff,
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: CIVIL DIVISION
ELWOOD F. BAKER,
Defendant.
: NO. 00-7903 Civil
NOTICE
TO: Nancy A. Baker, C/O Gregory L. Cutler, Esq., 50 East High Street, Carlisle, Pennsylvania
17013.
YOU ARE HEREBY NOTIFIED that the New Matter and Counterclaims set forth herein
contain averments against you to which you are required to respond within twenty (20) days after
service thereof. Failure by you to do so may constitute an admission.
Dated: Jr}flttJ8''iL ~OO/
Law Offices of Herbert Corky Goldstein, Esq.
By. Jr:t:t/litf1!!!.mQ
Identification No. 7182
204 State Street
P.O. Box 10463
Harrisburg,Pennsylvania 17105---0363
(717) 236 - 6491
Attorney for Defendant
- I -
NANCY A. BAKER,
Plaintiff,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL DIVISION
ELWOOD F. BAKER,
Defendant.
NO. 00-7903 Civil
ANSWER
TO PLAINTIFF'S SECOND AMENDED COMPLAINT
AND NOW comes the Defendant, Elwood F. Baker, by and through his attorney, Herbert
Corky Goldstein, Esquire, to answer Plaintiffs Second Amended Complaint as follows:
51. Paragraphs 1-13 and 15-18 of Defendant's Amended Answer are hereby incorporated as
. if fully set forth herein.
52. The statute speaks for itself.
53. The agreement speaks for itself. In further response, it is denied that the Settlement
Agreement marked as Plaintiffs Exhibit "A" of the Plaintiff's Complaint is a true and correct copy of
the Settlement Agreement. More specifically, the signatures of both the parties and the witnesses on
Plaintiff's Complaint do not comport with those on the original document. In still further response,
Defendant incorporates the defenses of fraud, oral contract varying the written contract, mutual mistake
and unconscionability as more specifically set forth in Defendant's New Matter herein.
54. The agreement speaks for itself. In further response, it is denied that the Settlement
Agreement marked as Plaintiffs Exhibit "A" of the Plaintiff's Complaint is a true and correct copy of
the Settlement Agreement. More specifically, the signatures of both the parties and the witnesses on
Plaintiffs Complaint do not comport with those on the original document.
55. The agreement speaks for itself. In further response, it is denied that the Settlement
Agreement marked as Plaintiff's Exhibit "A" of the Plaintiff's Complaint is a true and correct copy of
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the Settlement Agreement. More specifically, the signatures of both the parties and the witnesses on
Plaintiffs Complaint do not comport with those on the original document.
56. Denied. Defendant is without knowledge or information sufficient to form a belief as to
what "documents" plaintiff is referring to. Accordingly, said averment is denied and strict proofthereof,
if admissible, is demanded at time of trial. In further response, paragraphs 68 to 77 of Defendant New
Matter herein are incorporated as if fully set forth herein.
57. Denied. This averment states a conclusion of law to which no further response is
necessary or appropriate. Accordingly, said averment is denied and strict proof thereof, if admissible, is
demanded at time of trial. In further response, paragraphs 53 through 56 of Defendant's Answer to
Plaintiff s Second Amended Complaint are incorporated as if fully set forth herein.
WHEREFORE, Defendant Elwood F. Baker respectfully request this Honorable Court to
dismiss Plaintiff Nancy A. Baker's Second Amended Complaint with prejudice.
COUNT n - FRAUD
58. Paragraphs 1-3 of Defendant's Amended Answer are hereby incorporated as if fully set
forth herein.
59. The agreement speaks for itself. In further response, it is denied that the Settlement
Agreement marked as Plaintiff's Exhibit "A" of the Plaintiff's Complaint is a true and correct copy of
the Settlement Agreement. More specifically, the signatures of both the parties and the witnesses on
Plaintiffs Complaint do not comport with those on the original document.
60. Denied. Defendant made no representations concerning Plaintiff's interest in his pension.
Defendant and Plaintiff had no discussions concerning the value of Defendant's pension. To the
contrary, Plaintiff arrived at the figure ofthirty thousand dollars ($30,000.00) on her own behalf. 6l.
Denied. Paragraph 60 of Defendant's Answer to Plaintiffs Second Amended Complaint is
incorporated as if fully set forth herein.
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62. Denied. Paragraph 60 of Defendant's Answer to Plaintiffs Second Amended
Complaint is incorporated as if fully set forth herein.
63. Denied. Paragraph 60 of Defendant's Answer to Plaintiff's Second Amended Complaint
is incorporated as if fully set forth herein.
64. Denied. This averment states a conclusion of law to which no further response is
necessary or appropriate. Accordingly, said averment is denied and strict proof thereof, if admissible, is
demanded at time of trial.
WHEREFORE, Defendant Elwood F. Baker respectfully request this Honorable Court to
dismiss Plaintiff Nancy A. Baker's Second Amended Complaint with prejudice.
NEW MATTER
Further answering the averments of Plaintiff's Second Amended Complaint, Defendant avers:
65. Plaintiff's complaint seeks damages from defendant on the claim that defendant
fraudulently represented to Plaintiff that the sum of thirty thousand dollars ($30,000.00) was an
accurate reflection of her interest in his pension.
66. On July 13, 1994, plaintiff released defendant from any and all liability on this cause of
action, as evidenced by the written release executed by plaintiff as set forth in the Settlement Agreement
on page 7 under the heading "Retirement Benefits", a copy of which is attached to Defendant's
Amended Answer as Exhibit 1.
67. Plaintiff, having previously released defendant on the cause of action on which the
complaint is partially based, is barred from here recovering against defendant on said cause of action.
Accordingly, Defendant raises the defense of release.
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68. Prior to executing the agreement sued upon by Plaintiff, Plaintiff, with the intent to
deceive and defraud Defendant, falsely represented to Defendant that the law firm that had handled the
divorce prepared the property settlement agreement, and that the agreement was balanced, fair and was
required under the law.
69. With further intent to deceive and defraud Defendant, Plaintiff falsely represented that
Plaintiff s niece, Christine Gill, a law student and judicial clerk, stated that the property settlement
agreement was balanced, fair and was required under the law.
70. Defendant avers that he believed Plaintiffs statements and in reliance thereon, signed the
property settlement agreement.
71. Unknown to Defendant, the property settlement agreement was drafted by Plaintiffs niece,
Christine Gill, and was not drafted by the law firm that handled the divorce.
72. Defendant avers that Plaintiff made the above-mentioned statements with the intent to
fraudulently induce Defendant to sign a property settlement agreement that was disproportionate, unfair
and oppressive. Accordingly, Defendant raises the defense of fraud.
73. Defendant denies that Plaintiff performed all of Plaintiffs obligations under the
agreement. In this connection, Defendant alleges that Plaintiff failed to perform such contract
obligations in that Plaintiff failed to surrender Defendant's tools upon Defendant's demand. Said tools
are worth more than twelve thousand dollars ($12,000.00). Accordingly, Defendant raises the defense
of nonperformance.
74. The Defendant avers that at the time of the execution of the agreement upon which the
Plaintiff brings this action, it was agreed by and between the said Plaintiff and Defendant that all of
Plaintiff s right, title and interest in the Salvadore DaJi print would be transferred to Defendant, the
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terms of which agreement were omitted from the aforesaid written agreement by reason that Plaintiff
infonned Defendant that the written agreement was irrelevant and that despite the terms of the written
agreement, Plaintiff intended to transfer all of Plaintiff's right, title and interest in the Salvadore Dali
print to Defendant. Accordingly, Defendant raises the defense of oral contract varying written contract.
75. Paragraphs 93 through 99 of Defendant's Counterclaim sounding in fraud are
incorporated as if fully set forth herein. Accordingly, Defendant raises the defense of fraud.
76. When Plaintiff and Defendant executed the agreement sued upon by Plaintiff, both
Plaintiff and Defendant believed that all of Plaintiff's right, title and interest in the Salvadore Dali print
would be transferred to Defendant and fully intended the right, title and interest to be transferred to
Defendant, but by mistake, the agreement executed by Plaintiff and Defendant transferred all of
Defendant's right, title and interest in the Salvadore Dali print to Plaintiff. Accordingly, Defendant
raises the defense of mutual mistake.
77. The agreement drafted and sued upon by Plaintiff is unfair, oppressive, violated
Defendant's reasonable expectations and reveals a gross disparity in the property settlement between
Plaintiff and Defendant. Accordingly, Defendant raises the defense of unconscionability.
COUNTERCLAIM I
Elwood F. Baker v. Nancy A. Baker
Breach of Written Contract
78. Paragraphs 51 through 77 of Defendant's Answer to Plaintiffs Second Amended
Complaint are hereby incorporated as if fully set forth herein.
79. On July 13, 1994, Plaintiff and Defendant entered into a contract in writing, entitled
"SETTLEMENT AGREEMENT", a copy of which is attached to Defendant's Amended Answer as
Exhibit 1.
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80. The Settlement Agreement provided, in relevant part, on page five (5) under the subtitle
"PERSONAL PROPERTY":
"Wife also hereby transfers to Husband all of her right, title and interest in and to tools
located at the marital residence, which Wife agrees to store at the marital residence. Wife
further agrees to surrender said tools to Husband upon demand."
81. Defendant repeatedly demanded that Plaintiff surrender the tools to Defendant.
82. Despite Defendant's repeated demands, Plaintiff failed and refused to surrender the tools
to Defendant.
83. Plaintiff's failure and refusal to surrender the tools to Defendant constituted a material
breach of the Settlement Agreement.
84. As a result of Plaintiff's material breach of the Settlement Agreement, Defendant has
sustained a loss in excess of twelve thousand dollars ($12,000.00).
85. Page four (4) of the Settlement Agreement under the subtitle "Attorneys' Fees for
Enforcement" provides as follows:
"[T]he breaching party will pay all attorneys' fees, court costs and expenses
(including interest and travel costs if applicable) which are incurred by the other
party in enforcing this Agreement, whether enforcement is ultimately achieved by
litigation or by amicable resolution."
86. In addition to Defendant's actual damages, Defendant has incurred attorneys fees, court
costs and expenses in enforcing the Settlement Agreement.
WHEREFORE, Plaintiff demands judgment in excess of twelve thousand dollars ($12,000.00),
plus interest, court costs, attorneys fees, and any other relief that the Court deems necessary or
appropriate.
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II
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COUNTERCLAIM II
Elwood F. Baker v. Nancy A. Baker
Breach of Oral Contract
87. Paragraphs 51 through 86 of Defendant's Answer to Plaintiff's Second Amended
Complaint are hereby incorporated as if fully set forth herein.
88. Defendant avers that at the time of the execution of the agreement upon which the
Plaintiff brings this action, it was agreed by and between Plaintiff and Defendant all of Plaintiff's right,
title and interest in the Salvadore Dali print would be transferred to Defendant.
89. Defendant repeatedly demanded that Plaintiff surrender the Salvadore Dali print to
Defendant.
90. Despite Defendant's repeated demands, Plaintiff failed and refused to surrender the
Salvadore Dali print to Defendant.
91. Plaintiff's failure and refusal to surrender the Salvadore Dali print to Defendant
constituted a material breach of the oral agreement.
92. As a result of Plaintiff's material breach of the oral agreement, Defendant believes, and
therefore avers, that he has sustained a loss within the limits of mandatory arbitration in Cumberland
County.
WHEREFORE, Plaintiff demands judgment within the limits of mandatory arbitration in
Cumberland County, plus interest, court costs and any other relief that the Court deems necessary or
appropriate.
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.
COUNTERCLAIM m
Elwood F. Baker v. Nancy A. Baker
Fraud
93. Paragraphs 51 through 92 of Defendant's Answer to Plaintiff's Second Amended
Complaint are hereby incorporated as if fully set forth herein.
94. Defendant avers that the Plaintiff, with intent to deceive and defraud Defendant, falsely
represented to the Defendant that Plaintiff intended to transfer all of Plaintiff's right, title and interest in
the Salvadore Dali print to Defendant.
95. Defendant avers that the Plaintiff, with further intent to deceive and defraud Defendant,
falsely represented to the Defendant that the written agreement was irrelevant and that despite the terms
of the written agreement, Plaintiff intended to transfer all of Plaintiff's right, title and interest in the
Salvadore Dali print to Defendant.
96. Defendant avers that he believed the Plaintiff s statements as to the Salvadore Dali print
and in reliance thereon signed the agreement.
97. Defendant avers that Plaintiff at no time intended to transfer all of her right, title and
interest in the Salvadore Dali print to Plaintiff but instead intended to fraudulently induce him to sign the
agreement transferring all of Defendant's right, title and interest in the Salvadore Dali print to
Defendant.
98. As a result of Plaintiffs fraud, Defendant believes, and therefore avers, that he has
sustained a loss within the limits of mandatory arbitration in Cumberland County.
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99. In addition to Defendant's actual damages, Defendant has incurred attorneys fees,
court costs and expenses in enforcing the Settlement Agreement.
WHEREFORE, Plaintiff demands judgment the limits of mandatory arbitration in Cumberland
County, plus interest, court costs, attorneys fees, and any other relief that the Court deems necessary or
appropriate.
Respectfully Submitted,
Law Offices of Herbert Corky Goldstein, Esq.
Dated: l11M Jr t1, ~ t1() /
/
By:
!#:~~~
HERBERT CORK . GOLDSTEIN, ESQ.
Identification No. 7182
204 State Street
P.O. Box 10463
Harrisburg, Pennsylvania 17105-0363
(717) 236 - 6491
Attorney for Defendant
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VERIFICATION
I, Elwood F. Baker, hereby certifY that the facts set forth in the following document are based
upon information which I have furnished to counsel, as well as upon information which has been
gathered by counsel and/or others acting on my behalf in this matter. The language in the document is
that of counsel and not my own. I have read the document, and to the extent it is based upon
information that I have given to counsel, it is true and correct to the best of my knowledge, information
and belief. To the extent that the content of the document is that of counsel, I have relied upon counsel
in making this Verification. I hereby acknowledge that the facts set forth in the aforesaid document are
made subject to the penalties of 18 Pa.C.S.A. ~4904 relating to unsworn falsification to authorities.
Dated: C3!ff / ~ 00 }
~fZ~
Elwood F. Baker
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NANCY A. BAKER,
Plaintiff,
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: CIVIL DIVISION
ELWOOD F. BAKER,
Defendant.
: NO. 00-7903 Civil
CERTIFICATE OF SERVICE
I, Herbert Corky Goldstein, Esquire, attorney for Defendant, Elwood F. Baker, hereby certify
that I this day served a copy of the foregoing Answer to Plaintiffs Second Amended Complaint upon
the person(s) indicated below by depositing a copy of the same in the United States Mail, postage
prepaid, at Harrisburg, Pennsylvania, and addressed as follows:
Gregory L. Cutler, Esq.
50 East High Street
Carlisle, Pennsylvania 17013
Respectfully Submitted,
Law Offices of Herbert Corky Goldstein, Esq.
Dated:
iflcuJ tf~~o" J
By:
'SQ~
HERBERT CO Y. GOLDSTE
Identification No. 7182
204 State Street
P.O. Box 10463
Harrisburg, Pennsylvania 17105-0363
(717) 236 - 6491
Attorney for Defendant
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NANCY A. BAKER,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL DIVISION
v.
: No. 00-7903 Civil
ELWOOD F. BAKER,
Defendant
PLAINTIFF'S ANSWER DEFENDANT'S NEW MATTER AND COUNTERCLAIMS
65. Denied. The plaintiff seeks damages for breach of contract and/or damages
relating to the defendant's fraud.
66. Denied. Plaintiff signed the agreement after being fraudulently induced to believe
that she was getting what would have been her fair share of the defendant's pension.
67. Denied. This is a conclusion oflaw which does not require an answer.
68. Denied. The Plaintiff did not inform the Defendant that the Attorney handling the
divorce had prepared the Property Settlement Agreement, or that it was balanced, fair, and
required under the law. By way of further answer, the Defendant was the Plaintiff in the Divorce
Action and retained the Attorney handling the divorce, therefore, he knew, or should have
known, that said Attorney did not prepare the agreement, and that an agreement was not required
under law.
69. Denied. The Plaintiff never informed the Defendant what Christina Gill
(Roseman) thought of the agreement.
70. Denied. The Plaintiff avers that the Defendant signed the agreement because the
terms were very favorable to him.
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71. Denied. Christina Gill (Roseman) faxed a Property Settlement Agreement form to
the Plaintiff and the Defendant to aid them in preparation of the agreement. The Plaintiff and
Defendant reviewed the form and made agreed upon changes, which were then faxed to Christina
Gill (Roseman) to type so that it could be formalized as a Property Settlement Agreement. The
terms agreed upon are accurately represented in Plaintiff's Exhibit "A".
72. Denied. The Plaintiff did not deceive the Defendant, and the agreement is very
favorable to the Defendant.
73. Denied. The Defendant obtained his tools in accordance with the agreement and
traded them for a waterbed owned by James E. Garrick. In addition, the tools were not worth
$12,000.
74. Denied. The Plaintiff never agreed to transfer the Salvadore Dali Print to the
Defendant, and never represented that the written agreement was irrelevant. In addition, the
agreement provides on page 3 that all waivers or modifications are to be in writing, therefore,
this defense is barred by the Parol Evidence Rule.
75. Denied. Plaintiff's answer to paragraphs 93-99 of defendant's counterclaim are
incorporated herein by reference. Proof is demanded at trial.
76. Denied. The agreement embodies the terms which the Plaintiff and Defendant
intended. The Plaintiff never intended to transfer the Salvadore Dali Print to the Defendant,
therefore, there is not a mutual mistake.
77. Denied. The Plaintiff's answer to Paragraph 70 is incorporated herein by
reference. This is a conclusion of law which does not require an answer. Proof is demanded at
trial.
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.
Denied. This is a conclusion of law which does not require a response. Proof is
demanded at trial.
78.
An answer is not required.
79. Admitted. To the extent that Defendant's Exhibit I coincides with Plaintiff's
Exhibit "A".
80. Admitted.
81. Denied, Defendant never demanded surrender of the tools. Plaintiff's answer to
paragraph 73 is incorporated herein by reference.
82. Denied. Plaintiff's answer to Paragraph 81 is incorporated herein by reference.
83. Denied. This is a conclusion of law which does not require a response. Proof is
demanded at trial.
84. Denied. This is a conclusion of law which does not require a response. Proof is
demanded at trial.
85. Admitted in part Denied in Part. The applicable Paragraph provides as follows:
" In the event that either party breaches any provision ofthis Agreement and the
other party retains counsel to assist in enforcing the terms thereof, the breaching
party will pay all attorney's fees, court cost and expenses (including interest and
travel cost if applicable) which are incurred by the other party in enforcing this
Agreement, whether enforcement is ultimately achieved by litigation or by
amicable resolution. It is the specific Agreement and intent of the parties that a
breaching, or wrong doing party shall bear the obligation of any and all cost,
expenses and counsel fees incurred by the non-breaching party in protecting and
enforcing his or her rights under this Agreement".
86. Denied. This is a conclusion oflaw which does not require a response. Proof is
demanded at trial.
87. An answer is not required.
88. Denied. Paragraphs 74 and 76 of the Plaintiff's answer are incorporated herein by
reference.
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.
89. Denied. The Defendant never demanded that the Plaintiff surrender the Salvadore
Dali print to the Defendant. The Salvadore Dali Print is the property of the Plaintiff pursuant to
the Agreement.
90. Denied. The Plaintiff's answer to Paragraph 89 is incorporated herein by
reference.
91. Denied. This is a conclusion of law which does not require a response. Proof is
demanded at trial.
92. Denied. Paragraphs 89-91 are incorporated herein by reference.
93. An answer is not required.
94. Denied. Plaintiff's answer to Paragraphs 74, 76 and 89 are incorporated herein
by reference.
95. Denied. The Plaintiff's answer to Paragraph 94 is incorporated herein by
reference.
96. Denied. The Plaintiff's answer to Paragraph 70 is incorporated herein by
reference.
97. Denied. The Plaintiff's answer to Paragraphs 94 and 96 are incorporated herein
by reference.
98. Denied. This is a conclusion oflaw which does not require a response. Proof is
demanded at trial.
99. Denied. This is a conclusion of law which does not require a response. Proof is
demanded at trial.
T'~Jj.",~ -<
.
WHEREFORE, the Plaintiff demands judgement upon the Defendant, and all relief
deemed appropriate.
THE LAW OFFICES OF PAUL BRADFORD ORR
BY:
taL
DATE:3/;C:;/OI
ego utter, Esquire
Attorney for Plaintiff
Supreme Court ill # 73471
50 East High Street
Carlisle, P A 17013
(717) 258-8558
LIP,,_. _
.
VERIFICATION
I verifY that I am the Plaintiff and that the statements made in the foregoing
Plaintiffs Answer to Defendant's New Matter and Counterclaims are true and correct. I
understand that false statements herein are made subject to the penalties of Pa. C.S. S
4904, relating to unsworn falsification to authorities.
DATE: ,::/, '5-/9 -0/
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this date a true and correct copy ofthe foregoing
Plaintiff's Answer to Defendant's New Matter, and Counterclaims was served by regular, first-
class U.S. Mail, postage prepaid, upon the following:
Herbert Corky Goldstein, Esquire
204 State Street
PO Box 10363
Harrisburg, PA 17105-0363
Date: 3/;;/0/
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NANCY A. BAKER ,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYL V ANlA
v.
: CIVIL ACTION - LAW
ELWOOD F. BAKER,
Defendant
: NO. 00-7903 CIVIL TERM
PRAECIPE TO DISCONTINUE ACTION
To the Prothonotary:
I am respectfully requesting that the Prothonotary mark the above captioned matter
settled, discontinued, and ended with Prejudice.
Dated:!
,2003
Paul Bradford quire
Attorney LD. No. 71786
50 East High Street
Carlisle,PA 17013
Attorney for Plaintiff
cc: Nicole M. Staley O'Gorman, Esquire
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NANCY A. BAKER,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v
: NO. 2000 - 7903 CIVIL ACTION - LAW
ELWOOD F. BAKER,
Defendant
: CIVIL ACTION - LAW
d-
AND NOW, this ~ day of
COURT ORDER
, 2003, it appearing that the
Plaintiff has discontinued this action, the appoin ment of Hubert X. Gilroy, Esquire, Craig
Hatch, Esquire and Mary Kennedy, Esquire as arbitrators is vacated. In his capacity as
Chairman of the Board of Arbitration, Attorney Gilroy shall be paid the sum of $50J)0.
BY THE COURT,
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NANCY A. BAKER,
Plaintiff
Vo
ELWOOD F. BAKER,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL DIVISION
· No.O _(~' ~
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set
forth in the following pages, you must take action within twenty (20) days after this Complaint
and Notice are served, by entering a written appearance personally or by attorney and filing in
writing with the Court your defenses or objections to the claims set forth against you. You are
warned that if you fail to do so the case may proceed without you and a judgment may be entered
against you by the Court without further notice for any money claimed in the Complaint or for
any other claim or relief requested by the Plaintiff. You may lose money or property or other
rights important to you.
YOU SHOULD TAKE 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 Ave.
Carlisle, PA 17013
1-800-990-9180
NANCY A. BAKER,
Plaintiff
V.
ELWOOD F. BAKER,
Defendant
· IN THE COURT OF COMMON PLEAS OF
· CUMBERLAND COUNTY, PENNSYLVANIA
:
· CIVIL DIVISION
:
· No. ay- 79043
COMPLAINT
A__:. Breach of Contract for failure to make 24 monthly payment~
1. Plaintiff is Nancy A. Baker, an adult individual residing at 906 Petersburg Road,
Carlisle Pennsylvania, 17013.
2. Defendant is Elwood F. Baker, an adult individual believed to be residing at 101
South 2na Street, Suite 814, Harrisburg, PA 17101.
On July 13, 1994, plaintiff and defendant entered into an agreement in writing,
entitled "SETTLEMENT AGREEMENT," a copy of which is attached as "Exhibit A."
4. This written agreement constituted a valid and binding contract.
5. Plaintiff has complied with all of her contractual obligations under the terms of
this Settlement Agreement.
6. The end of Page 4 of the Settlement Agreement under the subtitle "MONETARY
SETTLEMENT" running over to page 5 provides as follows:
"Husband [£ e. Defendant] shall pay Wife [i. e., Plaintiff], in consideration
of Wife's full release of any claims in husband's pension, which release will be
more fully set below in this Agreement, the sum of Thirty Thousand ($30,000)
dollars, to be paid in the amount of Five Hundred dollars ($500) per month each
and every month until the sum of $30,000 has been paid to Wife. These
payments are to commence on the 15th of the first full month following the entry
of the divorce decree between Husband and Wife and are to be paid on the 15th of
each and every month thereafter..."
7. The entry of divorce decree in this case occurred on July 19, 1994. A copy of the
divorce decree is attached as Exhibit B.
8. In accordance with the Agreement, the first payment was due on August 15, 1994
and the last payment was due on July 15, 1999.
9. Defendant made payments from August 15, 1994 to July 15, 1997, for a total of
$18, 000. Plaintiff has not received any other payments from Defendant.
10. Defendant missed a total of 24 payments covering the time period of August
1997 to July 1999 for a total of $12,000 in missing payments.
11. Defendant's failure to make these payments constituted a material breach of his
contractual duties under the Settlement Agreement.
12. Plaintiff has suffered a pecuniary loss in excess of $12,000 resulting from
defendant's breach.
13. Page 4 of the Settlement Agreement under the subtitle ATTORNEYS' FEES FOR
ENFORCEMENT provides as follows:
"IT] he breaching party will pay all attorneys' fees, court costs and
expenses (including interest and travel costs if applicable) which
are incurred by the other party in enforcing this Agreement, whether
enforcement is ultimately achieved by litigation or by amicable
resolution."
14. Pursuant to 23 Pa. C.S.A. § 3104 (c) a provision of an agreement between the
parties regarding the disposition of counsel fees or expenses shall not be subject to modification
by the court.
15. Pursuant of 23 Pa. C.S.A. § 3502 (e) the Court has broad powers to deal with
failure to comply with the terms of an agreement entered into between the parties. Specifically,
the Court can award interest on unpaid installments, and award counsel fees and costs.
16. Page 4 of the Settlement Agreement under the subtitle "REMEDIES AND
SANCTIONS" provides as follows:
"In addition to such other remedies and sanctions available under
applicable law, the parties may utilize any remedy or sanction set forth in
the Pennsylvania Divorce Code, as amended, to enforce any term of this
Agreement as though it had been an order of Court."
17. Page 4 of the Settlement Agreement under the subtitle "ADDRESS OF
PARTIES" provides as follows:
"As long as any obligations remain to be performed pursuant to the
provisions of this Agreement, each party shall have the affirmative
obligation to keep the other informed of his or her residence address, and
shall promptly notify the other in writing of any change of address by
giving the new residence address."
18. Defendant has failed to inform Plaintiff of his whereabouts. In fact, the Defendant
has taken steps to conceal his whereabouts.
WHEREFORE, plaintiff demands damages judgment in excess of $16,500, which
amount includes actual damages, interest, and attorneys fees plus all other court costs and
expenses that this Court deems appropriate
THE LAW OFFICES OF PAUL BRADFORD ORR
BY:
Gregory L. Cutler, Esquire
Attomey for Plaintiff
Supreme Court ID # 73471
50 East High Street
Carlisle, PA 17013
(717) 258-8558
VERIFICATION
I verify that the statements made in the foregoing are true and correct. I understand that
false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, relating to unsworn
falsifications to authorities.
Dated:
co? .
IN THE COURT OF COMMON PLEAS OF THE 59TH JUDICIAL DISTRICT OF PENNSYLVANIA
COUNTY BRANCH - CAMERON
El~ood ~. ~aker,
- Plalaclf£
Nancy A. Baker,
Defendant.
Civil Action - Law
Case No. 94-2913
LN DIV0~CZ
, 1994 by
~7[EKEAS, the partIea hereto are Husband ami Wife, having been
la-aful~y Joined in marrtnge on April 19, 1959 in EoLlldaysburg,
Pennsylvania.
VHIREAS, dlverse unhappy d/ffereucea, disputes ami d/fficulclea
have arisen betveen the puttee ami
divorce proceedings, a~i the parties hereto a--e des£roua of 8eCCl~g
c~c~y a~ f!~lly ~he ecou~c ~d oc~r tights cad ob~ac~
~c~n each ocher t~~ ~chouc
. equable ~scrt~Cioa of ~1C~ proart; the lucre
~nc~ce of ~ of ~; ~ ~
a~ ~astble ~s ~ o~ ag~c the other or ag~nac their respec~e
NOW, ~OR~, Wife and Husband, each lnteud.ing to be legally
bound hereby, agree a~ follov~:
AGR--.r'm~SNTNOT A BA~ TO DIF0~CE PROCEEDINGS
Tb/s Agreement sh~l moc be considered ~o affect or bar the
right of WtXe or Huaband co a divorce. The parties intend Co secure a
mutual consent, no-fault divorce pursuant to the provisions of Section
201(c) of the Pen~-ylvanta Divorce Code of 1980, as amended.
EFFECT OF DZ?0~CE DECREE
This Agreement shaLL cou:inue In full force and effect after
time aa a. f£ual'~ec:ee lu divorce may be entered wi:h re,pet: to
Exhibit A
PLAINTIFF'S
EXHIBIT
DARE. OF ZY, Y.~ZO~
The 'dace of execution' or 'execucioa dace' oE Chis ag.-eemenc
8hall be de~ned as the ~ace ~pou vhlch
have each e~ecu~ed
'cla~:e o~ execu~:~o:' or 'execution dace' oE this Asreemeut shall be
debt. ed u ~he date o~ execution by rJ~e
A~eemen~.
a)
E~eF~ u otherwise provtde~ ~n uhls ~g=eemen~:.
b)
Each parry hereby absolutely an~ unco~d&ctonaJ_~y releases an~
forever discharges the ocher and bls or her he&rs, e~ecuCors,
a~tn/scracors, assigns, property an~ eagate fro~ any ~-4 all
rl~ts, claims, demands or obligations &rising our oE or by'
virtue of c~e ma~t=a~ relaclor~blp.'of the paroles or otherulse,
whether nov -v~_scln8 or he=sa/cst-arising. 1'he above release
sx,~ ] be e~fecCive re~az~ess of ~hecher such claims arise out
of any for~er or future acC~, coucracts, engage~eucs or
itab~l~tles of the ocher or by ~ay of ~rldow's or widower's
rlghcs, fa~ll? exe~c£ou or s~-~Lar allowance, or under CBs .*
Lutestate law, or the rlght to cake against cbs spouse's ~I1~ 'or
the right co treat a 1//ec1~e conveyauce by the ocher as
cesta~euca=y, or a11 ocher right o£ a sut-~tvtng spouse co
participate in a deceased spouse's estate, whether arisl~g un,er
the l~vs o~ Pe---ylvanla; any state, Coaanonvealth or territory
of the Uuiced States, or any ocher couucry. The paroles each
~-atve an~ release any ami a/1 r[ghc co receive Insurance
proceeds ac the death of the ocher; whether as n~med beueftclary
?age 2 of 9 :-_~
or otherwise, aa yell es any ri~hc co r. ece~ve legacy,
bequesc or resld,~_--y p~oclou of che esS&ce of ~' ocher under
his or her rill (if executed prior co cl~ execuc~ou ~ace
h~. reof.), or co acc aa pe~soaai represencacive of che estate of
the ocher. ·
or d~ds ~:~ver, In ~ or tu e~7, vhlch ~r pa~7
ever ~t or uo~ ~s ~ ~ oc~r.
breach h~eol or d~£aulc h~reunder shall be dee~i a va~er o~ any
~'u~:N~eqqe~lC de~aulC o~ =he aa~e or s/mi/ar uacu~e.
1~t$ ~;~ee~e-c shall Be con~t.-ued i~ &cco~dance rich ~ lays o~
~he Coc~onveal=h o~ ~enusyLvan/a.
~~ M~l, executor's, acl~a:f, cl£$Crat0~, ~ucce~or$ a~c[
OTR~ DO~rON
Vitkta ~lfcee~ (/5) day, after demand therefor, the par=iew wilt
extC~Ce any ~ ~lCcen lnec~ncs, aasig~nce, relwe~,
~CisfacClo~, de~a, noCe~ or such ocher~lt~s aa ~y ~ =eaao~b~,
necea~ or desirable for cbc proper ef~eccuecloq of c~s ~re~nc.-'
NO ~A~FE~ OF DEFAULT
This Ag:ee~e=c ~hall rem~tn in full force and effect uu~ess amd
uucil ce~ced under ~d ~re~c co the ce~ of c~s ~re~enC.
,~,~e: o~ .~cher ~rty Co ~sIac upou ec~cc verfo~. ~ .--
Page 3 ol 9
ADDE.E$S Ol~
ob!!~a~ioe_ ~ ~-e~ r~ ~cher l~9~ed o~s ~ealdence ~dress,
~~Cly ~tl~ ~ oC~r in ~itl~ o~ au~ c~e o~ ~dress
~ ~i~ ~ ~v reaide~e
$11 of r~a alimony provis£ona coucalne~ in chis AsreemenU may be
enforceable by a~ &cCion ~u Su~por~ ~n accordance wirJl Pennsylvania l~uJ.e8
o£ Cl-~t Procedure I~iO.L ec a~t.
ATTOIt~t~S' ..-vv_~q EO&:~'O[C~-
in Cite event cba. c etcher Fatty breaches any provision oE cb.ts
Agreeme~c and the ocher p~rcy retains cou-~el Co assist iu en~orcin~ cbs
cer~s thereof, ,~.brea. chin$ parry wilt pay =1! aCCormeys' £eee,_.cog,~'~
~~o_~ ZC Is c~ specific a=r~en~ ~ intent ~E"C~'~ea'"'~'
· ~~.. ~ ~~ ~e or ~. =ighc~ under C~8: ~re~nc,
HEADINGS NOT PART
Any headings preceding the cexC of the severa.t parsEr&phs and
subparagraphs hereof are inserted solely for convenience of =e~erence and
shall not couaicuce a parc of =k~s Agreement nor stml! they affecc"ics
meaning, construction or eifect:.
?ROPEKTY
MOnA.KY SETTL~'-~Z
~uabami shall pay Vt~e, Iu consideration of ~ife,a fuJ~L,:.~e~
forth ~low In c~s igre~eu~, ;C_~ s~ of ~IX7 Th~ (~30,000) ;~
Page 4 o£ 9
~o~o~ the'euc~ o~ the d~rce deczee ~eu
are Co ~ ~ o~ the 15ch of ~ch ~d e~ ~uch c~reafce=. These
~n~S are =oc couC~enC on ~e's no= r~ing or hoc
a~ ~e ~e~S are 20 Continue regardless of
Husband also agrees chat any moneys received from ,viark Bakar
representing payment on a loan frs: the parties to Mark Baker will be
paid by Husband as follovs:
1) AI~ payments are co be paid to Toby Baker until Toby Baker
~- received the sum of ~10001
2) After Toby Baker Bas received the su~ oi ~1000, Husband
aG'Tees to pay half of any au~ ~lt
~e,~ies ,~ha~ the payme:~ of,
P~O~ P~OP~
Wife 5ereby tr--efers to Husband all of her right, title and
presently ~caC~ a= =he ~_=~ reside~e, ~-cludi~ c~ fo~o~:
1) Itms o~ ~.le Jevelry
2) Canon Ag-1 camara and camera equipment.
W~e ~o ~e~ Cra~fers to H~ba~ ~1 of ~r right, ~l~le
~rees co sgore at =~ ~rlc~ ~sld~ce. V~e further agrees =o
surrender ~ld tools to H~b~d upon ~.
the sole al~;l exclusive prope~'~:7~of Hua~
Husband hereby transfers co . Wife iix of his right, title and
interest in and to those items of tangible personal property which are
located a{ th~ marital :esidence, i:cludiu& the followiu&: ..
1) Furu/ture
2) . Applia~ces
3) Antiques
&) Salvadore Dali print
5) Items of female Jewelry.
~he above-aen~oue~ ~ema, aloug wi~h all o~her peraoa~I
prope~y o~ a~y nature located a~ ~he marital residents, ~xcepc
pr~2ous~y mentioned' ~oo1~, shaJ_l cous~e ~he $o~e and
property o[ ~i~.
~KEAL r_~TATE
us~.~ ~ora ~ra~er~u~ ~o Viis ~ o~ hie rights, title an~ ~n~eres~ in
~ ~o r~a ~eaL estate kno~u aa ~06 ~e~ersb~r~ ~oa~, CarLts[e,
Pennsy~yani&.
The said conveyance r. ha.ll be free o~ ~ lien~ amd eac~abrances
estate, or p~e~s ~ ~ ~iee.
The documents 'conveying title Co the real estate shall be
executed by Husb~i and delivere~ to '~ife on or before ~he ~ace of'
execu=iom of cb~ts Agreemem=.
interest ia amd Co a Toyota Corolla automobile.
Wife shall =ramsfer to Eus~ ~ ~ of her righ=, ti=le and
2. Husband sh~l~L crA,~fer Co Vi~e ali of his right,
interest in amd Co a 1991 Toyota Camry amd a 1966 Chevelle.
S~ARATE~$~$
~Relea;e. Except a~ othervise provided In chis Agreement, ~he
~artie~ hereby agree that as to each of thelc separate assets,
as that term £s de.~ine~ herein, the party not having title to or
possessioa of a~y pgr:icul&r separate asset hereby ~ra£ves,
relea~ea~ relinquishes and forever aBam~ous any and a.ll claim
therein, and acknovle~gea :hac herea-~cer the party havln& title
to or possessioa of a separate asset £s the sole and ex-c~slve
o~rner thereof.
Page 6 of 9
Ce
a~t hol~ o~ ~oc~r ~e8o Er~ a~ i~aB~IXcT, cost or
~e~e, ~i~X~ ~cCo~e7s' fees a~ ~nceresc, ~ch ~y ~ In
the fuCure X~=~ v~ch respecc ca their 8eparace a~ec~ a~
A~I~-AC~ UIRED PROP~
o' ___ .Each of .~h~. pa~&_e, shall hereafter o~n a~ euJ~, ~"~e e~ n -
~ ~y c~m or ~g~C o~ C~ ocher, ~i proof ~ ~ - p · CI7
~cer c~ ~ecuc~ou o~ c~s ~e~e:- ~_~ . ~ q r~ br ~ or her
F-~fsT/~G AUD. FUTURE OBLZgAT~ON$
!{~b~d end V:l/e ~ave specl~icaJ_T¥ agreed chat the debts l~sced
Below v~L~ Be paid as follows:
1) Husband agrees co p~y In full any char~es -re~ ....
u~s~over, ~ D~C~ c~rge cards c~en-'- - - ~ - 8,
~A ~ss~e
~r ~ch ~rtXe~. Eusb~ -'s ........ Y _
loaa ~ch c~ D~CU. ~ ~ ~-ee3 co pay in f~ a pe~o~
2) V~.Ee ami ~[usb~nd agree chaC each ~'~L1. a :~"
c~rges ~revXouely lqcurred or lncu~ *-P-~ i~ f~ ~y"
~--~d~ o Pp~r on Che~' ~c~r e ~rd
~.~,~her ~r~yf~ . e~ ~. ~ card ~e~ed
E~ch p~rcy' represea=s ~ut agrees chat he o ,
or .... -=~u or cae oc~r may ~' re;po~ible
Page 7 of 9
Page 8 o[ 9
· cknovled&exl chic 8he executed the same for the Imrposes there~n
couta~.ued.
seaL.
Carlisle, Cumberland Counh,
My Commission Ez. pi~'~s N?/.
COttOn. OF PI~NSYLVANIA :
~b~c :or the ~nv~t~ of ~e~rlva~a~ reaid:~ ~ :he Couutr
o~~~ , ~:so~y app~re~ E:~od F. Baker, ~o~ to ~ ~o ~
~ pe~on ~o~ ~e ~s ~c~ co the ~t~u Agre~euc ~d
ac~vl~g~ C~C ~ ~ecuted the ~e for'the pu~s t~re~n
con~d.
sea.]..
~T~THE$$ ~Y~F, Z have .he=euuto set ~ ~ aud offtct~
Judith Ann Valenline, Notary Publi~-~,~% TM '-~x ~~~
Carlisle, Cum~rland County "-~'a ......
My Commission ~pires Nov. 1 ~9,~I'~' 19~ '~
?age ~ of 9 '
IN THE
COURT OF COMMON PLEAS OF THE 59TH JUDICIAL DISTRICT OF PENNSYLVANIA
COUNTY BRANCH - CAMERON
ClvllActio= -Law
Case No. 94-2913
1. l~e undersiEued,
above-cap ~:~o=e4 divorce
The u~ers&~ne~ Nancy &. Baker, ls =h~ defendant £= r/~
abov,e-cap~lone~ divorce ac=ion.
3. At~ache~ hereto as Ezhtb£t 'A" is Sec=lemeuC AEreemen~ catered
A. Pla~u~/ff and Defe~u respectfully reTues= =haCErb/b~--A be
entered ~nto the recor~ aK the aboYe-g&ptioue~ case.
Ei~x~ F. Baker.
IN THE COURT OF COMMON PLEAS OF THE 59TH JUDICIAL DISTRICT. OF PENNSYLVANIA
COUNTY'BRANCH - CAMERON
ELWOOD F. BAKER
vs.
NANCY A. BAKER
Plaintiff
Defendant
CIVIL ACTION - LAW
CASE NO. 94-2913
IN DIVORCE
DECREE
AND NOW, ~/ ~ /~ , 19~, it is ordered and
&
decreed that Plaintiff and Defendant are divorced from the bonds
of matrimony.
The Court retains jurisdiction of any claims raised by the
Darties to this action for which a final order has not yet been
entered. As of the date hereof, neither Darty has raised any such
claim.
BY THE COURT:
Gordon J. Daghir
PRESIDENT JUDGE
True and Correct Copy
certified from the
~2ecords of Cameron Co.
Penna. ".~,
Prothor{6tary :~d',4
PLAINTIFF'S
EXHIBIT
Stanley J. Reisman
Attorney for Plaintiff
Law & Finance Building
Pittsburgh, PA 15219
(412) 232-0406
NANCY A. BAKER Plaintiff
VS.
ELWOOD BAKER,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
No. 00-7903 Civil
ORDER
AND NOW, this
Motion For Summary Judgment is
J
day of
, 2000, the
(or) in the Alternative
AND NOW, this day of ,
A Hearing on the Motion For Summary Judgment by the named
Defendant is set for , 2000,
County Courts in Court Room # , at
AM/PM.
2000,
in the Cumberland
Date J.
NANCY A. BAKER,
Plaintiff
VS.
ELWOOD F. BAKER,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
No. 00-7903 Civil
MOTION FOR SUMMARY J~IK74~ENT
AND NOW comes the Defendant, by and through his attorney,
Herbert Corky Goldstein, Esquire, who respectfully represents
as follows:
1. The above referenced lawsuit was commenced by the filing
of a complaint on or about November 8th, 2000.
2. The Plaintiff filed her complaint on the alleged basis that
there was an underlying legal property settlement agreement
that was a "valid and binding contract".
3. This alleged "Settlement Agreement" was prepared by the
Plaintiff and the Plaintiff's niece, who was not an attorney.
Her name was Cristine Gill. His wife said her niece was a law
student and knew the law. It was represented to him that this
settlement was fair and that he had to sign in order for the
Divorce Decree to be granted. He did not know that he was
entitled to counsel and did not understand the issues involved.
4. Defendant only signed this agreement after his wife assured
him that the Agreement was fair and equitable.
5. Plaintiff sent this "Agreement" to the "Defendant" in the
mail and he signed it. Also, the witness who signed this
Agreement, Defendant does not know the witness, and was not
present. He also never appeared before a Notar~
6. The Law Office that handled the Divorce itself was not
involved in preparing the specific contents of the Agreement
and did not advise the Defendant about this Agreement.
7. Defendant eventually spoke to an Attorney in the summer
of 1997, and learned that the so-called "fair" Agreement prepared
by the Plaintiff and by the Plaintiff's niece he signed was
completely one sided and not valid. Defendant did not have any
counsel much less an independent counsel to advise him of his
rights and he never waived that right. He was also led to believe
that the Attorney who handled the Divorce was involved, and
found out later that he had no involvement. He and his law
office only handled the Divorce. They do not negotiate property
settlements.
8. Defendant was eventually advised that he had been greatly
taken advantage of by his wife, and that her niece, the
co-preparer of the specifics in the Agreement was not
representing his interests, as she was only representing her
Aunt, the Plaintiff, in securing his signature.
- 2 -
9. Plaintiff and Defendant were divorced on July 19th, 1994,
by going through the law offices of a Stanley S. Reisman, who
operated a "Divorce Mill" in Pittsburgh. The Divorce handled
by Stanley S. Resiman, did not deal with any property concerns
or a settlement. That law office only dealt with the obtaining
of a Divorce and no other issues. The Settlement Agreement was
secured by the Plaintiff and Plaintiff's niece.
10. It is submitted that the Plaintiff would have the Court
believe that the law office who handled the Divorce, also handled
the "Property Settlement". In fact, it was a totally separate
document and after securing Defendant's signature, it was just
sent to the law office in Pittsburgh handling the Divorce to
file.
11. Defendant says no one witnessed his signature as now appears
on the "document", and he did not go before a Notary, as
indicated.
12. Any review of the so-called Settlement, clearly indicates
that the Defendant was not represented by any counsel or by
any independent source before signing the papers presented to
him by the Plaintiff.
13. A summary judgment should be rendered in this case, as
the plaintiff is required to present sufficient evidence that
a legally valid and binding settlement agreement e~ists. The
Plaintiff has the burden of proof, and has not met that burden.
- 3 -
There is no evidence at all that this was a legally valid and
binding Settlement Contract, as Defendant is entitled to
independent legal counsel and never waived that right in that
document, or at any other time..
14. When the Plaintiff does not present evidence on the issue
essential to her case and which she bears the burden of proof,
such that a jury could return a verdict in her favor, and failure
to present this evidence establishes that there is not a genuine
issue of a material fact, the Defendant is entitled to a summary
judgment as a matter of law. Rules of Civ. Proc., Rule 1035,
42 Pa C.S.A.
15. In summary judgment cases, the Court should review the
record in a light more favorable to the Plaintiff. Rules of
Civ. Proc. Rule 1035, 42 Pa. C.S.A. However, even in the light
most favorable to the Plaintiff, the Plaintiff has not shown
there was a legally binding property settlement agreement in
which the Defendant was given any independent advice, and in
fact, the only representation for the Defendant was the
Plaintiff's niece, a non attorney, who prepared the Agreement.
16. Also, in order for such a property settlement contract,
which purports to be part of a Divorce Settlement, Defendant
must waive his rights to counsel in the Document itself, and
this was not done.
- 4 -
WHEREFORE, THE Defendant respectfully prays this Honorable
Court to grant the within Motion For Summary Judgment, and to
enter judgment in favor of the Defendant, and against the
Plaintiff.
Respectfully submitted,
/ ~/~ B / ~.0~~;/;~. Law Offices of Herbert Corky Goldstein, Esq.
Dated
HE~ERT CO~~EI , Q.
204 State Street ~
P. O. Box 10463
Harrisburg, PA 17105-0363
(717) 236-6491
I.D. # 71 82
Attorney for Defendant
- 5 -
NANCY A. BAKER,
Plaintiff
V.
ELWOOD F. BAKER,
Defendant
· IN THE COURT OF COMMON PLEAS OF
· CUMBERLAND COUNTY, PENNSYLVANIA
· CIVIL DIVISION
· No. 00-7903 Civil
PLAINTIFF'S MOTION TO STRIKE OFF DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT
AND NOW, comes the Plaintiff, Nancy A. Baker, by and through her attorneys, The Law
Offices of Paul Bradford Orr, and respectfully avers as follows:
1. On November 8, 2000 the Plaintiff filed a complaint for Breach of Contract·
2. On approximately November 20, 2000, the Defendant filed a Motion For
Summary Judgment·
The Defendant has not filed an Answer to the Plaintiff's Complaint·
The Defendant has not filed any Preliminary Objections to the Plaintiff's
o
4.
Complaint.
5.
Pa.R.C.P. No. 1035.2 states in relevant part that "After the relevant pleadings are
closed, but within such time as not to unreasonably delay trial, any party may move for Summary
Judgment in whole or in part as a matter of law".
6. The relevant pleadings are not closed, and in fact, the only pleadings are contained
in the Plaintiff's Complaint which remains unanswered.
7. Therefore, the Defendant's Motion for Summary Judgement is improper.
WHEREFORE, the Plaintiff requests that the Motion for Summary Judgement be
Stricken.
Dated:
Respectfully Submitted,
THE LAW OFFICES OF PAUL BRADFORD ORR
Attorney for Plaintiff
50 East High Street
Carlisle, PA 17013
(717) 258-8558
Supreme Court ID #73471
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this date a true and correct copy of the foregoing
Motion was served by regular, first-class U.S. Mail, postage prepaid, upon the following:
Herbert Corky Goldstein, Esquire
204 State Street
PO Box 10363
Harrisburg, POA 17105-0363
Date:
· SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 2000-07903 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
BAKER NANCY A
VS
BAKER ELWOOD F
, Sheriff or Deputy Sheriff who being
Thomas Kline
duly sworn according to law, says, that he made a diligent search and
and inquiry for the within named DEFENDANT , to wit:
BAKER ELWOOD F
but was unable to locate Him
deputized the sheriff of DAUPHIN
serve the within COMPLAINT & NOTICE
in his bailiwick.
He therefore
County, Pennsylvania, to
On November 30th , 2000 , this office was in receipt of the
attached return from DAUPHIN
Sheriff's Costs:
Docketing
Out of County
DEP. DAUPHIN CO
.00
9.00
25.50
.00
.00
34.50
1 /3o/2ooo
PAUL BRADFORD ORR
R ~hg-m~s Kline ~ ~
Sheriff of Cumberland County
Sworn and subscribed to before me
this /~ day of ~
A.D.
Prothonot ar~
· SHERIFF'S RETURN - REGULAR
CASE NO: 2000-07903 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
BAKER NANCY A
VS
BAKER ELWOOD F
RICHARD SMTIH , Sheriff or Deputy Sheriff of
Cumberland County, Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE was served upon
BAKER ELWOOD F the
DEFENDANT
at POE: NAVY INV. CON POINT BLDG
MECHANICSBURG, PA 17055
, at 0014:53 HOURS, on the 14th day of November , 2000
SECURITY OFFICE
by handing to
ELWOOD BAKER
a true and attested copy of COMPLAINT & NOTICE
together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing 18.00
Service 7.44
Affidavit .00
Surcharge 10.00
.00
35.44
Sworn and Subscribed to before
me this /~ day of
~J~ m'-,,-~ ~;~3 A.D.
/P~othonotary
So Answers:
R. Thomas Kline
11/30/2000
PAUL
BRADFORD ~R ~
By:
D~pUty Sherif
f
Mary Jane Snyder
Real Estate Deputy
William T. Tully
Solicitor
Dauphin County
Harrisburg, Pennsylvania 17101
ph: (717) 255-2660 fax: (717) 255-2889
Jack Lotwick
Sheriff
Ralph G. McAllister
Chief Deputy
Michael W. Rinehart
Assistant Chief Deputy
Commonwealth of Pennsylvania
County of Dauphin
: BAKER NANCY A.
vs
: BAKER ELWOOD F
Sheriff's Return
No. 2577-T - - -2000
OTHER COUNTY NO. 00-7903
AND NOW: November 20, 2000
COMPLAINT
BAKER ELWOOD F
to HIM
of the original COMPLAINT
to him/her the contents thereof at 101 S. SECOND ST.
STE. 405
HARRISBURG, PA
at i:30PM served the within
upon
by personally handing
1 true attested copy(ies)
and making known
17101-0000
Sworn and subscribed to
before me this 21ST day of NOVEMBER, 2000
PROTHONOTARY
So Answers,
Sheriff of Dauphin County,
Deputy Sheriff
Sheriff's Costs: $25.50 PD 11/13/2000
RCPT NO 143258
HOPKINS
· In The Court of Common Pleas of Cumberland County,
Nancy A. Baker ·
VS.
Elwood F. Baker
N0. 20-7903._civil
Pennsy]vania
Now, 11/8/00
hereby deputize the Sheriff of
...... ,20 O {~., I, SHERIFF OF CUMBERLAND COUNTY, PA, do
Dauphin COUllty to execute this Writ, this
deputation being made at the request and risk of the Plaintiff.
Sheriff of Cumberland County, PA
within
Affidavit of Ser~rice
,20 , at o'clock
M. served the
upon
by handing to
cop5' of the original
and made known to
So answers,
the contents thereof.
Swora and subscribed before
me this __ day of . .; 20__
Sherlffof
COSTS
SERVICE
MILEAGE
AFFIDAVIT
County, PA
NANCY A. BAKER,
Plaimiff
Vo
ELWOOD F. BAKER,
Defendant
· 1N THE COURT OF COMMON PLEAS OF
· CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
· No. 00-7903
PROOF OF SERVICE
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Attached hereto is notice that
Elwood F. Baker
101 South 2nd Street, Suite 814
Harrisburg, PA 17101
was served with a Complaint and Notice in the above captioned case on November 14, 2000.
(See attached Exhibit A.")
BY:
Attorney for Plaimiff
Supreme Court ID # 73471
50 East High Street
Carlisle, PA 17013
(717) 258-8558
Mary Jane Snyder
Real Estate Depmy
William T. Tully
Solicitor
Dauphin County
Harrisburg, Pennsylvania 17101
ph: (717) 255-2660 fax: (717) 255-2889
Jack Lotwick
Sheriff
Ralph G. McAllister
Chief Deputy
Michael W. Rinehart
Assistant Chief Deputy
Commonwealth of Pennsylvania
County of Dauphin
AND NOW: November 20, 2000
COMPLAINT
BAKER ELWOOD F
to HIM
of the original COMPLAINT
to him/her the contents thereof at 101 S. SECOND ST.
STE. 405
HARRISBURG, PA
: BAKER NANCY A.
vs
: BAKER ELWOOD F
Sheriff's Return
No. 2577-T - - -2000
OTHER COUNTY NO. 00-7903
at l:30PM served the within
upon
by personally handing
1 true attested copy(ies)
and making known
17101-0000
Sworn and subscribed to
before me this 21ST day of NOVEMBER, 2000
PROTHONOTARY
So Answers
Sheriff of Dauphin .C~
By
Deputy Sheriff
Sheriff's Costs: $25.50 PD 11/13/2000
RCPT NO 143258
HOPKINS
' SHERIFF'S' RETURN - REGULAR -
CASE NO: 2000-07903 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
BAKER NANCY A
VS
BAKER ELWOOD F
, Sheriff or Deputy Sheriff of
RICHARD SMTIH
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE was served upon
the
BAKER ELWOOD F
DEFENDANT ,
at POE: NAVY INV. cON POINT BLDG
MECHANICSBURG, PA 17055
at 0014:53 HOURS, on the 14th day of November , 2000
SECURITY OFFICE
by handing to
ELWOOD BAKER
a true and attested copy of COMPLAINT & NOTICE
together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing 18.00
Service 7.44
Affidavit .00
Surcharge 10.00
.00
35.44
Sworn and Subscribed to before
me this day of
A.D.
Prothonotary
So Answers:
R. Thomas Kline
11/30/2000 n ~
PAUL BRADFORD/~RR /~
By: ~/ut~y Sheriff
SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 2000-07903 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
BAKER NANCY A
VS
BAKER ELWOOD F
Thomas Kline , Sheriff or Deputy Sheriff who being
duly sworn according to law, says, that he made a diligent search and
and inquiry for the within named DEFENDANT , to wit:
BAKER ELWOOD F
but was unable to locate Him
deputized the sheriff of DAUPHIN
in his bailiwick. He therefore
County, Pennsylvania, to
serve the within COMPLAINT & NOTICE
On November 30th , 2000 , this office was in receipt of the
attached return from DAUPHIN
Sheriff's Costs:
Docketing
Out of County
DEP. DAUPHIN CO
.00
9.00
25.50
.00
.00
34.50
11/30/2000
PAUL BRADFORD ORR
Sheriff of Cumberland County
Sworn and subscribed to before me
this day of
A.D.
Prothonotary
'In The Court of Common Pleas of Cumberland County, Pemnsyivania
'Nancy h. Baker
VS.
Elwood F Baker
~O. 20-7903 C~vil
~ow, 11/8/00
hereby deputize the Sheriff of
, 20 O 0, I, SHERIFF OF CUMBERLAND COUNTY, PA, do
Dauph in County to execute this Writ, this
deputation being made at the request and risk of the Plaintiff.
Shin-iff of Cumberland County, PA
}qO~z,
Affidavit of S'emTiee
o'clock
M. served the
upoI1
by handing to
copy of the original
and made known to
$0 allswer8,
the contents thersof.
Sheriff of
County, PA
Sworn and subscribed before
me this ~ day of
; 20
COSTS
SERVICE
MiLEAOE
AFFIDAVIT
NANCY A. BAKER,
Plaintiff
VS.
ELWOOD F. BAKER,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
NO. 00-7903 Civil
ANSWER TO COMPLAINT
A. DENIED. Defendant entered into an Agreement with Plaintiff,
ex-wife, only after he was assured by his ex-wife that her niece
prepared the Agreement and she was a law student and "knew the
law", and the "Agreement was fair." Defendant was also led
to believe that the lawyer from Pittsburgh that was handling
their Divorce, was involved in the Agreement. Defendant husband
had no legal representation and for that matter, no
representation at all.
This Agreement was not a valid or binding contract.
Moreover, Plaintiff did not even comply with her obligations
under the terms of the Agreement she and her niece prepared
for Defendant's signature. Defendant however paid on this so-
called Agreement until he found that the Agreement was not valid.
Defendant has never attempted to conceal his residence
as the Plaintiff alleges in their Complaint.
WI~EREFORE, Defendant asks the Court to Dismiss this
Complaint.
Date
204 State Street
P. O. Box 10363
Harrisburg, PA 17105-0363
(717) 236-6491
I.D. # 7182
Attorney for Defendant
- 2 -
VERIFICATION
I verify that the statements made in this Complaint
are true and correct. I understand that false statements herein
are made subject to the penalties of 18 Pa. C.S. Section 4904
relating to unsworn falsification to authorities.
- 3 -
NANCY A. BAKER,
Plaintiff
VS.
ELWOOD F. BAKERt
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
No. 00-7903 Civil
PRAECIPE
Please enter my Appearance in the above captioned matter
on behalf of the Defendant, Elwood F. Baker.
NANCY A. BAKER,
Plaintiff
VS.
ELWOOD F. BAKER,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
No. 00-7903 Civil
PRAECIPE
Please enter my Appearance in the above captioned matter
on behalf of the Defendant, Elwood F. Baker.
Counsel for Elwood F. BakerQ'
NANCY A. BAKER,
Plaimiff
ELWOOD F. BAKER,
Defendant
· IN THE COURT OF COMMON PLEAS OF
· CUMBERLAND COUNTY, PENNSYLVANIA
· CIVIL DIVISION
· No. 00-7903
ORDER
AND NOW, this day of ,2001 upon consideration of
PlaintiW s Preliminary Objections to Defendant's Answer, it is hereby ORDERED that said
Objections are sustained and that the Defendant is hereby ORDERED to plead his Answer in
numbered paragraphs corresponding to the numbered paragraphs in PlaintiWs Complaint and in
accordance with Pa.R.C.P. No. 1022 and that said Answer be verified in accordance with
Pa.K.C.P. No. 1024.
BY THE COURT:
Distribution:
Gregory L. Cutler, Esq.
The Law Offices of Paul Orr
50 E. High Street
Carlisle, PA 17013
Herbert Corky Goldstein, Esq.
204 State Street
P.O. Box 10363
Harrisburg, PA 17105-0363
NANCY A. BAKER,
Plaintiff
ELWOOD F. BAKER,
Defendant
· IN THE COURT OF COMMON PLEAS OF
· CUMBERLAND COUNTY, PENNSYLVANIA
· CIVIL DIVISION
· No. 00-7903
PREI,IMINARY OBJECTIONS
AND NOW, here comes the Plaintiff, by and through her counsel, THE LAW OFFICES
OF PAUL BRADFORD ORR, Gregory L. Cutler, Esquire, pursuant to Pa. R.C.P. No. 1028 and
preliminarily objects to Defendant's Answer as follows:
Prelimina~_ Objection To Defendant's Failure To Conform to a Rule Of Court
1. On November 8, 2000, the Plaintiff filed a Complaint for breach of contract
consisting of eighteen numbered paragraphs. This Complaint was served on Defendant on
November 14, 2000.
2. On December 8, 2000, the Defendant filed an answer (dated November 30, 2000)
and then served the same on Plaintiff. (See copy attached hereto as Exhibit A).
3. Defendant's Answer contains only two long paragraphs followed by two short
sentences· Defendant's paragraphs in his answer are not numbered nor do they correspond to
the numbered paragraphs of Plaintiff's Complaint.
4. Under Pa. R.C.P. No.206.2 (b), an answer, "shall be divided into paragraphs,
numbered consecutively, corresponding to the numbered paragraphs of the petition."
5. Under Pa. R. C. P. No. 1022: "[e]very pleading shall be divided into paragraphs
numbered consecutively. Each paragraph shall contain as far as practicable only one material
allegation."
6. Defendant's Answer fails to conform to both Pa. R. C. P. No. 206.2 (b) and to Pa.
R. C. P. No. 1022.
7. Defendant's current answer is not verified by the Plaintiff and does not set forth a
reason why the verification is not made by the Plaintiff.
8. Under Pa. R. C. P. No. 1024 (c):
"The verification shall be made by one or more of the parties filing the pleading
unless all the parties (1) lack suffident knowledge or information, or
(2) are outside the jurisdiction of the court and the verification of none of them
can be obtained within the time allowed for filing the pleading. In such cases, the
verification may be made by any person having sufficient knowledge or information
and belief and shall set forth the source of the person's information as to matters
not stated upon his or her own knowledge and the reason why the verification is not
made by the party."
9. Defendant's verification fails to conform to Pa. R. C. P. No. 1024.
WHEREFORE, Plaintiff requests that this Court Order Defendant to plead his Answer
in numbered paragraphs corresponding to the numbered paragraphs in Plaintiff's Complaint and
that said Answer be verified in accordance with Pa.R.C.P. No. 1024.
DATE:
Respectfully submitted,
THE LAW OFFICES OF PAUL BRADFORD ORR
~re-g°ry iff. Cu~er, Esquire
Attorney for Plaintiff
Supreme Court ID # 73471
50 East High Street
Carlisle, PA 17013
VERIFICATION
In accordance with Pa. R.C.P. No. 1024 (a), no verification is needed since there are no
averments of fact not appearing of record in the action or containing any denial of facts.
However, to the extent that a verification is needed, the foregoing Preliminary Objections on
behalf of Nancy Baker are based upon information which has been gathered by counsel for the
Defendant in the preparation of these Preliminary Objections. The statements made therein are
true and correct to the best of the counsel's knowledge, information, and belief. The undersigned
is verifying on behalf of the Plaintiff according to Pa. R.C.P. No. 1024 .(C)(2). The undersigned
understands that false statements herein made are subject to the penalties of 18 Pa.C.S.A., Section
4904, relating to unsworn falsification to authorities.
DATE:
Gregory ~ Cuder
NANCY A. BAKER,
Plaintiff
VS.
ELWOOD F. BAKER,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
NO. 00-7903 Civil
ANSWER TO COMPLAINT
A. DENIED. Defendant entered into an Agreement with Plaintiff,
ex-wife, only after he was assured by his ex-wife t~a-T~her niece
prepared the Agreement and she was a law student and "knew the
law", and the "Agreement was fair." Defendant was also led
to believe that the lawyer from Pittsburgh that was handling
their Divorce, was involved in the Agreement. Defendant husband
had no legal representation and for that matter, no
representation at all.
This Agreement was not a valid or binding contract.
Moreover, Plaintiff did not even comply with her obligations
under the terms of the Agreement she and her niece prepared
for Defendant's signature. Defendant however paid on this so-
called Agreement until he found that the Agreement was--not valid.
PLAINTIFFS
EXHIBIT
Defendant has never attempted to conceal his residence
as the Plaintiff alleges in their Complaint.
WHEREFORE, Defendant asks the Court to Dismiss this
Complaint.
Date
204 State Street
P. O. Box 10363
Harrisburg, PA 17105-0363
(717) 236-6491
I.D. ~ 7182
Attorney for Defendant
VERIFICATION
I verify that the statements made in this Complaint
are tru~-~and correct. I understand that false statements herein
are made subject to the penalties of 18 Pa. C.S. Section 4904
relating to unsworn falsification to authorities.
Counsel f~E~RT C~o~~.EINBaker
CERTIFICATE OF SERVICE
I hereby certify that a tree and correct copy of the foregoing Preliminary Objections
was delivered via first-class mail to the following:
Herbert Corky Goldstein, Esq.
204 State Street
P.O. Box 10363
Harrisburg, PA 17105-0363
Date:
Gregory,15. Gd'tler
PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and su~nitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please ] ~t the within matter for the next Ar~3~nent Court.
CAPTION OF CASE
(entire caption must be stated in ~,11 )
NANCY A. BAKER,
Plaintiff
(p1 aintiff)
ELW00D F. BAKER,
Defendant
( Defe~tant )
e
e
No. 00-7903 Civil DIVISION ~ 2000
State matter robe ar~3ued (i.e., plaintiff's motion for newt rial, defendant's
d~m~rrer to c(~plaint, etc.):
Whether Plaintiff's Preliminary Objections to Defendant's Answer
should be granted?
Identify counsel whowill argue case:
Gregory L. Cutler, Esquire
(a) for plaintiff: The Law Offices of Paul Bradford Orr
;~klress: 50 East High Street
Carlisle, PA 17013
(b) for defendant: Herbert Corky Goldstein, Esquire
Address: 204 State Street
P. O. Box 10363
Harrisburg, PA 17105-0363
I will notify ail Darties in writingwitbin t~odays that this case has
been ]/sted for~t.
4. Arc3~nent Court Date:
January 3, 2001
Atto~,e~ f~r Plaintiff
NANCY A. BAKER,
Plaintiff,
V.
ELWOOD F. BAKER,
Defendant.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
NO. 00-7903 Civil
PRAECIPE
TO THE PROTHONOTARY:
Please withdraw Defendant Elwood F. Baker's motion for summary judgment.
Dated:~ ~'~I100
By:
Respectfully Submitted,
Law Offices of Herbert Corky Goldstein, Esq.
~ C~O-~RK GOLDSTEIN, ESQ.
Identification No. 7182
204 State Street
P.O. Box 10463
Harrisburg, Pennsylvania 17105~0363
(717) 236- 6491
Attorney for Defendant
NANCY A. BAKER,
Plaintiff,
V.
ELWOOD F. BAKER,
Defendant.
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL DIVISION
:
: NO. 00-7903 Civil
CERTIFICATE OF SERVICE
I, Herbert Corky Goldstein, Esquire, attomey for Defendant, Elwood F. Baker, hereby certify
that I this day served a copy of the foregoing Praecipe upon the person(s) indicated below by depositing
a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, and
addressed as follows:
Gregory L. Cutler, Esq.
50 East High Street
Carlisle, Pennsylvania 17013
Dated:
By:
Respectfully Submitted,
Law Offices of Herbert Corky Goldstein, Esq.
i}~eEntifiEcaRt~onCONoP~71718~2OLD STEIN, ESQ.
204 State Street
P.O. Box 10463
Harrisburg, Pennsylvania 17105--0363
(717) 236 - 6491
Attorney for Defendant
NANCY A. BAKER,
Plaimiff,
V.
ELWOOD F. BAKER,
Defendant.
· IN THE COURT OF COMMON PLEAS OF
· CUMBERLAND COUNTY, PENNSYLVANIA
· CIVIL DIVISION
· NO. 00-7903 Civil
NOTICE
TO:
Nancy A. Baker, C/O Gregory L. Cutler, Esq., 50 East High Street, Carlisle, Pennsylvania
17013.
YOU ARE HEREBY NOTIFIED that the New Matter and Counterclaims set forth herein
contain averments against you to which you are required to respond within twenty (20) days after
service thereof. Failure by you to do so may constitute an admission.
By:
Law Offices of Herbert Corky Goldstein, Esq.
I~d3~ t/d~~!/S:I'~IN, ESQ.
Identification No. 7182 --
204 State Street
P.O. Box 10463
Harrisburg, Pennsylvania 17105--0363
(717) 236 - 6491
Attorney for Defendant
-1-
NANCY A. BAKER,
Plaintiff,
V.
ELWOOD F. BAKER,
Defendant.
· IN THE COURT OF COMMON PLEAS OF
· CUMBERLAND COUNTY, PENNSYLVANIA
· CIVIL DIVISION
· NO. 00-7903 Civil
AMENDED ANSWER
AND NOW comes the Defendant, Elwood F. Baker, by and through his attomey, Herbert
Corky Goldstein, Esquire, with the permission of Plaintiff's Counsel, to respectfully amend his answer
as follows:
1. Admitted.
2. Admitted.
3. Admitted in part, denied in part. It is admitted that on the 13th day of July, 1994,
Plaintiff and Defendant signed a written agreement. It is denied that the Settlement Agreement
attached to Plaintiff's Complaint is a true and correct copy of the written agreement. More specifically,
the signatures of both the parties and the witnesses on Plaintiff's Complaint do not comport with those
on the original document.
4. Denied. This averment states a conclusion of law to which no further response is
necessary or appropriate. Accordingly, said averment is denied and strict proof thereof, if admissible,
is demanded at time of trial. In further response, paragraph three (3) of Defendant's Amended Answer
is incorporated as if fully set forth herein.
5. Denied. This averment states a conclusion of law to which no further response is
necessary or appropriate. Accordingly, said averment is denied and strict proof thereof, if admissible,
-2-
is demanded at time of trial. In further response, paragraphs 19 through 28 of Defendant's New
Matter are incorporated as if fully set forth herein.
6. The agreement speaks for itself.
7. Admitted.
8. Admitted in part, denied in part. This averment is admitted to the extent that it assumes
that Plaintiff has fulfilled all of her obligations under the agreement. However, to the extent that
Plaintiff did not or does not fulfill her obligations under the agreement, the averment is denied.
9. Admitted.
10. Denied. It is specifically denied that Defendant misses a total of 24 payments covering
the time period of August 1997 to July 1999 for a total of twelve thousand dollars ($12,000.00) in
missing payments. In further response, paragraphs 19 through 28 of Defendant's New Matter are
incorporated as if fully set forth herein.
11. Denied. Paragraphs 19 through 28 of Defendant's New Matter are incorporated as if
fully set forth herein.
12. Denied. Paragraphs 19 through 28 of Defendant's New Matter are incorporated as if
fully set forth herein.
13. The agreement speaks for itself.
14. Denied. 23 Pa.C.S.A. §3104 (c) provides: "Powers of court.--The court has authority to
entertain an action under this part notwithstanding the fact that the marriage of the parties and the cause
-3-
for divorce occurred outside of this Commonwealth and that both parties were at the time of the
occurrence domiciled outside this Commonwealth. The court also has the power to annul void or
voidable marriages celebrated outside this Commonwealth at a time when neither party was domiciled
within this Commonwealth."
15. The statute speaks for itself.
16. The agreement speaks for itself.
17. The agreement speaks for itself.
18. Denied. Defendant has not failed to infolrn Plaintiff of his whereabouts and has not
taken any steps to conceal his whereabouts. Plaintiff, at all times relevant hereto, was informed of
Defendant's whereabouts. Furthermore, Defendant's name, address and telephone number are in the
Bell Atlantic Harrisburg Metropolitan telephone book.
WHEREFORE, Defendant Elwood F. Baker respectfully request this Honorable Court to
dismiss PlaintiffNancy A. Baker's Complaint with prejudice.
NEW MATTER
Further answering the averments of Plaintiff's Complaint, Defendant avers:
19. Prior to executing the agreement sued upon by Plaintiff, Plaintiff, with the intent to
deceive and defraud Defendant, falsely represented to Defendant that the law firm that had handled the
divorce prepared the property settlement agreement, and that the agreement was balanced, fair and was
required under the law.
20. With further intent to deceive and defraud Defendant, Plaintiff falsely represented that
Plaintiff's niece, Christine Gill, a law student and judicial clerk, stated that the property settlement
agreement was balanced, fair and was required under the law.
21. Defendant avers that he believed Plaintiff's statements and in reliance thereon, signed
the property settlement agreement.
22. Unknown to Defendant, the property settlement agreement was drafted by Plaintiff's
niece, Christine Gill, and was not drafted by the law firm that handled the divorce.
23. Defendant avers that Plaintiff made the above-mentioned statements with the intent to
fraudulently induce Defendant to sign a property settlement agreement that was disproportionate, unfair
and oppressive. Accordingly, Defendant raises the defense of fraud.
24. Defendant denies that Plaintiff performed all of Plaintiff's obligations under the
agreement. In this connection, Defendant alleges that Plaintiff failed to perform such contract
obligations in that Plaintiff failed to surrender Defendant's tools upon Defendant's demand. Said tools
are worth more than twelve thousand dollars ($12,000.00). Accordingly, Defendant raises the defense
of nonperformance.
25. The Defendant avers that at the time of the execution of the agreement upon which the
Plaintiff brings this action, it was agreed by and between the said Plaintiff and Defendant that all of
Plaintiff's right, title and interest in the Salvadore Dali print would be transferred to Defendant, the
terms of which agreement were omitted from the aforesaid written agreement by reason that Plaintiff
informed Defendant that the written agreement was irrelevant and that despite the terms of the written
agreement, Plaintiff intended to transfer all of Plaintiff's right, title and interest in the Salvadore Dali
print to Defendant. Accordingly, Defendant raises the defense of oral contract varying written contract.
26. Paragraphs 44 through 48 of Defendant's Counterclaim sounding in fraud are
incorporated as if fully set forth herein. Accordingly, Defendant raises the defense of fraud.
27. When Plaintiff and Defendant executed the agreement sued upon by Plaintiff, both
Plaintiff and Defendant believed that all of Plaintiff's right, title and interest in the Salvadore Dali print
would be transferred to Defendant and fully intended the right, title and interest to be transferred to
Defendant, but by mistake, the agreement executed by Plaintiff and Defendant transferred all of
Defendant's right, title and interest in the Salvadore Dali print to Plaintiff. Accordingly, Defendant
raises the defense of mutual mistake.
28. The agreement drafted and sued upon by Plaintiff is unfair, oppressive, violated
Defendant's reasonable expectations and reveals a gross disparity in the property settlement between
Plaintiff and Defendant. Accordingly, Defendant raises the defense of unconscionability.
COUNTERCLAIM I
Elwood F. Baker v. Nancy A. Baker
Breach of Written Contract
29. Paragraphs 1 through 28 of Defendant's Answer with New Matter and Counterclaims
are hereby incorporated as if fully set forth herein.
30. On July 13, 1994, Plaintiff and Defendant entered into a contract in writing, entitled
"SETTLEMENT AGREEMENT", a copy of which is attached as Exhibit 1.
31. The Settlement Agreement provided, in relevant part, on page five (5) under the subtitle
"PERSONAL PROPERTY":
"Wife also hereby transfers to Husband all of her right, title and interest in and to tools
located at the marital residence, which Wife agrees to store at the marital residence. Wife
further agrees to surrender said tools to Husband upon demand."
-6-
32. Defendant repeatedly demanded that Plaintiff surrender the tools to Defendant.
33. Despite Defendant's repeated demands, Plaintiff failed and refused to surrender the
tools to Defendant.
34. Plaintiff's failure and refusal to surrender the tools to Defendant constituted a material
breach of the Settlement Agreement.
35. As a result of Plaintiff's material breach of the Settlement Agreement, Defendant has
sustained a loss in excess of twelve thousand dollars ($12,000.00).
36. Page four (4) of the Settlement Agreement under the subtitle "Attorneys' Fees for
Enforcement" provides as follows:
"[T]he breaching party will pay all attomeys' fees, court costs and expenses
(including interest and travel costs if applicable) which are incurred by the other
party in enforcing this Agreement, whether enforcement is ultimately achieved by
litigation or by amicable resolution."
37. In addition to Defendant's actual damages, Defendant has incurred attorneys fees, court
costs and expenses in enforcing the Settlement Agreement.
WHEREFORE, Plaintiff demands judgment in excess of twelve thousand dollars ($12,000.00),
plus interest, court costs, attorneys fees, and any other relief that the Court deems necessary or
appropriate.
COUNTERCLAIM II
Elwood F. Baker v. Nancy A. Baker
Breach of Oral Contract
38. Paragraphs 1 through 37 of Defendant's Answer with New Matter and Counterclaims
are hereby incorporated as if fully set forth herein.
-7-
39. Defendant avers that at the time of the execution of the agreement upon which the
Plaintiff brings this action, it was agreed by and between Plaintiff and Defendant all of Plaintiff's right,
title and interest in the Salvadore Dali print would be transferred to Defendant.
40.
Defendant.
Defendant repeatedly demanded that Plaintiff surrender the Salvadore Dali print to
41. Despite Defendant's repeated demands, Plaintiff failed and refused to surrender the
Salvadore Dali print to Defendant.
42. Plaintiff's failure and refusal to surrender the Salvadore Dali print to Defendant
constituted a material breach of the oral agreement.
43. As a result of Plaintiff's material breach of the oral agreement, Defendant believes, and
therefore avers, that he has sustained a loss within the limits of mandatory arbitration in Cumberland
County.
WHEREFORE, Plaintiff demands judgment within the limits of mandatory arbitration in
Cumberland County, plus interest, court costs and any other relief that the Court deems necessary or
appropriate.
COUNTERCLAIM III
Elwood F. Baker v. Nancy A. Baker
Fraud
44. Paragraphs 1 through 43 of Defendant's Answer with New Matter and Counterclaims
are hereby incorporated as if fully set forth herein.
-8-
45. Defendant avers that the Plaintiff, with intent to deceive and defraud Defendant, falsely
represented to the Defendant that Plaintiff intended to transfer all of Plaintiff' s right, title and interest
in the Salvadore Dali print to Defendant.
46. Defendant avers that the Plaintiff, with further intent to deceive and defraud Defendant,
falsely represented to the Defendant that the written agreement was irrelevant and that despite the terms
of the written agreement, Plaintiff intended to transfer all of Plaintiff's right, title and interest in the
Salvadore Dali print to Defendant.
47. Defendant avers that he believed the Plaintiff's statements as to the Salvadore Dali print
and in reliance thereon signed the agreement.
48. Defendant avers that Plaintiff at no time intended to transfer all of her right, title and
interest in the Salvadore Dali print to Plaintiff but instead intended to fraudulently induce him to sign
the agreement transferring all of Defendant's right, title and interest in the Salvadore Dali print to
Defendant.
49. As a result of Plaintiff's fraud, Defendant believes, and therefore avers, that he has
sustained a loss within the limits of mandatory arbitration in Cumberland County.
50. In addition to Defendant's actual damages, Defendant has incurred attorneys fees, court
costs and expenses in enforcing the Settlement Agreement.
-9-
WHEREFORE, Plaintiff demands judgment the limits of mandatory arbitration in Cumberland
County, plus interest, court costs, attorneys fees, and any other relief that the Court deems necessary or
appropriate.
Dated:
Respectfully Submitted,
Law Offices of Herbert Corky Goldstein, Esq.
Identification No. 7182
204 State Street
P..O. Box 10463
Harrisburg, Pennsylvania 17105--0363
(717) 236 - 6491
Attorney for Defendant
-10-
EXHIBIT 1
IN THE COURT OF COMMON PLEAS OF THE 59TH JUDICIAL DISTRICT OF pENNsYLVANIA
COUNTY BRANCH - CAMERON
Elwood F. Baker,
Nancy A. Baker,
Defendant.
CtYil Acc£on - Law
Case No. 94-2913
LN DIVORCE
~T~AS, :he part/es hereto are Hus~an~ a~A Vile, ha~n~ been
l~u~y ]otn~ In ~rri~e on Ap~L ~9, 1969 in Ho~idays~rg,
~S, ~ve~e ~ppy ~f[erences, disputes
~ve aris~ ~een =he pacies a~ i: is their i~ten~[o=
~vo~e pr~e~l~s, ~ the ~iea hereto ~ d~roua of
~c~ each ocher i~~, ~c~c ~Cacto~: C~ o~e~p
~uCe~ce of ~C~r of C~; ~ ~ ge~r~, ~y and ~1 oc~r c~i~s
a~ ~ssible ~s ~ o~ a~C :he oc~r or ~nac :heir respec~ve
NOV, ~~, V~e ud Hua~ud, e~ch ~nceu~q co ~ leggy
b~ud here~, agree as folly:
This Agreement shall not be considered to affect or bar the -'
right oE VL~e or Husband Co a divorce. The parties £ncend to secure a
mutual consent, no-fault divorce pursuant to the provisions of Section
201(c) of the Pe--.aylvania Divorce Co~e of 1980, as amended.
EFFECT OF DIVOKGE DECREE
Th/s Agreement shall continue in full force and effect after
such time as a.f£~l decree in divorce may be entered with respect to the
parties.
-~xhib it A
AG~ :0 ~: ZN'CO~OP, AT~ ZN DXTOP. CE O~
The terms oE this A&reeaent sh~l! be incorporated into any
di.~orce decree which asr ~ ence:~ ~th ~a~cC co the ~:ciea. ~e
C~:: oi C~on ~1e~ ~ch ~ enter su~ ~orce s~l I :e:ai~
con~n~ ~urts~ct~o~ o~e: :~ ~=cies and c~ sub,eec ~ccer o~ the
~ree~nt ~or C~ p~ee o~ e~o:c~enC o~ any o~ c~ prov~to~ thereo~.
The 'd~te o[ execation' or =e~ecucion date' oE this agreement
eha. LX. ~ de~in~ as the ~te ~u ~ch it is ~ecut~ by the ~rties i~
'~e o~ ~ut[o~ or ~ut~on da~e' of ~s ~re~nc s~ ~
~:m~ept u ocher~se provided in this Agreement:
Bach party here~ and al~olute~7 and unco~cU.t~.o~ally
and [orever dischar~es the ocher a~l the estate of the ocher for
a.l.~, puzToee8 ftoa any and a~LL rL~hts a~d oblisacion~ vhich
either may have or at any r~ee here~te~ have £or pa~t, presen~
alimony, equitable discri~utioQ, ccxmae~ ~ees, costs, expenses,
an~ any other right or obll&at~on, economic or other~se,
whether &rtstn& out o[ the ~arical rel~rionship or oc~~,
'~e oE ~9~, its ~ppl~ta ~ ~~nCs, ~ v~% ~ ~6er
~7 oC~r ~v o~ any oC~r
b)
:Each party hereby
Eo~ver ~sch~es
~acracors, ~8~g~, pzo~rty
r~hts, c~, d~s or ob~at~ a~s~ ~c oE or b7
vhec~r ~ ~stX~ or
0~ ~ ~tive re~e88 o~
of ~ fomr or ~utu~e Icte, co~tr~t~, e~a~uts or
liab~ies o~ t~ ot~r or b~ uy o~ ~do-*s or vidover'~
rlEhts, Early ~tio~ or
intes~tte ltw, or t~ r~ht to ~ke a~t t~ sp~'s ~'or
the ~ht to treat
~:~t~te ia a dec.sad spouse's estate, ~ether arisl~ under
o~ the Unit~ States, or ~ ot~r c~ut~. ~e par:les ~ch
~ive ~ release ~y a~ ~ ri&hr to receive i~ur~e
pr~eeda at the d~th
Page Z o[ 9
or ochez~rlse, &s veL~. as ~n7 ~.ghc co ~.eceive ,,ny leg&cy,
bequest or resL~lua~.'y p~oc~.ou o£ the est:&Ce o£ t:h4' ocher unde~
h:~s or her ~LL1. (:~ ezecucecl p~.o~: co t:h& e~:ecuclon cLt~e
hereof), or co ~ct as pe~$otz~, represenc&c:Lve of the eGg:ace o£
the other.
c)
Except for any cause of acc~on .'or divorce wb/ch etcher parry
· ay have or c~ co ~ve, ~ch ~r~ E~s ~o ~ oc~r ~ c~
~ecuC~ou o~ c~s A~enc ~n ~o~u~e ~
r~we ~ ~r~e rrm ~1 ca~ee of scion, cLa~, r~ghcs
ever ~d or ~e ~s M~us~ ~ oc~r.
No ~Lif:[cat~on or vaSver o~ any o~ the 2erm~ hereof shall b~
valid unlee$ ~.u wr~r~n~ ~1 s[S~l bT both parr/es and uo waiver o~ any
breach h~eo£ or defaul: h~reunder sbaht be dee~ed a waiver of any
~ubaequenc de~-&ult o~ the aa~e or atoll ar nature.
1~$ Mree~euC shali ~e construed iu accordance rich th~ laws of
the Co~monvealth of Pennsylw-~a.
E~cepc a~ othe.'-~se ~ay be provided, r.h~$ A~ree~en~ shall
b~ndin~ and shall ~nure co Ch~ benef[c of the 1)arcies hereto anal the/r
~esl~cc:Lve heirs, executors, ad~Ln~scracor~, succe~ors aha assigns.
Th~s Agreement couc~.CuCes che enr/re uncleracandin~ o£ the
parc~.ts anti supe~s~(les ~ny a~d all prior qree~eucs and uegoc~ar/on~
beCve~m th~. The~e are no .-epresenca~o-a or warc&nc~[e8 o~her ~han
~hose expressly set forth here~u.
Vichtn fLCceen (15) days after demand chere~or, the
execute any and ~1l wricceu [D~Cru~nCs, ass~gomenC~,
~s~ac~[o~, de~s, ~es or such ocher ~t~s as ~y ~ r~so~b~,
necesM~ or desirable Eot che proper e[~ecc~ou
NO VAIVER OF DEFAULT
Th~$ Ag:ee~eut shall remain in full force and effect unless and
uuc~l cer~naced un,er and pursuant co che Ce~ of cb/8 A~reemen=. The
failure of either parry Co ~nsl~c upo~ so,cc ~rfo~a~e of ~y. of ~
pro~s~o~ of ~s ~~nc s~ll ~ ~ ~y ~f~cc che r~Ehc of
par~y ~re~cer co e~orce c~ M~e. ~r s~ll ch~ v~Yer of any ~each
Page 3 of 9
of any provialou he~eof be construed as & valuer of any ~bse~eu~
~e= of sc=lc~ ~=fo~nce of ~ o~her ob~a~o~ he~eln.
· s lou~ as ~n7 oblt~&c~ons =e~aln co b~ perfo~ed purses= co
the pro~s~ of c~s ~~uc, ~ch ~rcy a~ ~ve the ~fi~c~ve
obl~aclou co ~ep c~ oc~r l~o~ ot ~s or her residence ~dress~
a~ s~ pr~tly noci~ ~ o~r tn ~lCi~ o~ any c~e of address
~ gl~ ~ ~w ~alde~e address.
ENFORCEHENT OF ALi'~ON~ P!~O¥ISION$
ALt of the altuony proyts£o~s concalne~ in th~s Agreement =ay be
enforceable b~ a~ action in support in accordance vtch Pennsylvania Rules
of Clv'~t Procedure 1910.1 ec seq.
Ia a~4/cion co such ocher remedies and sanctions available umier
applicable lay, rJ~e paroles may utilize any remedy or sanction aec forth
tn the Pennsylvania Dlvorce Code, as amended, ~:o euforce any term oE r~ls
A~ree~enC as though it bad been an order of Court.
lu the eveut: tbaC ~tther parry breaches any p~ov~alou of
~=e~ut ~ t~ ot~= ~y rec~ c~ to a~stac tn e~o~
C~ t~reo~ C~ ~e&c~ ~rty ~ pay ~ atto~eya' fees,
~ch ~e i~~ ~ ~ oc~r ~y tn e-~occt~ c~s Ag~euC,
~eche= e~o~uc 1~ ~c~CeI~ a~~ ~ 11c~aclon 'or by
res~utiou. ~t Is t~ specific ~r~ent ~ intent o~ t~ ~ima
p~teccl~ ~ enfo~cl~ ~8 or her ~ights under c~8 ~re~nc.
HEADTN~S NOT PART OP AGI~. _F4~ENT
Any headi~s preceding the text of ~he several paragraphs aud
subparagraphs hereof are tmsezced solely for convenience ot~ refe£ence amd
shall not conaicuce a part of chis Agreement nor shall they affect* 'Kcs
meaming~ construction or effect.
PKOPEETY
Husbaad sh-ltpay ~/~e, In consideration of Wife's full release
of any claims i:husband's pension, which release will be more f~lly sec
forth below in this AEreement, th~ sum of Thirsty Thousand (1[;30,000)
?ase· oi 9
doLLars, co be p~d lu the amo~uc of Flve Hundre~ dollars (~500)
~i[e. ~e~ paints are t° c~ence o~ the ~th o~ t~ Ei:s:
~o~~ the'e~t~ o[ the di~rce dec:~ ~e~ ~us~ an~
are to ~ ~Id o~ che [Sth o~ ~ch ~ e~ ~uth character. These
~nts are uoc conti~ent oe ~e'$ sot r~ing or not
a~ ~hese parents are to continue re,at, ess of ~echer Ui~e
future ~i~ co~bitates ~th a m~r of ~he op~si~e s~ or
Husbaud a~so agrees that any moneys received fro~ .~ark Baiter
representing payment on a loan frc~ the parr/es to Hark Baker v/11 be
paid by Husband as follows:
1) ALL payments are to b~ paid to Toby Baker u,~tll :oby Baker
has received the a~m of ];1000;
After Toby Baker lm$ received the s~ of $1000, Husband
a~rees to pay half of any ami .ll remaining payments to Wife.
Wife a~rees that the payment of 5500 p~r ~onth l~ consideration
of Wife's release of her rishts in Husband's pe/~ion are co be taxed as
a~mony and that such a~ouncs ~ay be de,ucCel, as a~imony by ~usbaod. All
other a~u~s paid to Wl~e by Husban~ are hoc to be dee~ed or considered
ai/mony.
~ife hereby tr;--iera to Husb&n~ all of her ri§hi, title
interest in an~ to chose items of tangible personal property wh/ch are
not presently located at the ~:ttal residence, Including the foLLowing:
1) It.s of male levelry
2) Canon AE-1 camara and camera equipment.
Wife also hereby cr~fers co H~ba~ ~1 of her right, title
a~ tnce~sc in ~ co tools l~a~ ac the ~c~ residers,
~:ees co score at :~ ~rl:~ ~aid~ce. ~e ~ugcher aggees :o '-,.
surrender ~ld cools to H~ u~u
· he above-mentioned trams, along v~ch ;11 personal property not
currently located at the marital residence and in the possession of
Husband, sh~ll constitute the sole and exclusive property of Husband.
Husband hereby transfers to . Wife _~11 of his right, title and
interest tn and co those items of tangible personal property ~hich are
located a~ the marital residence, including the following: ~-
1) Furniture
2) . Appliances
3) Antiques
&) Salvadore Dali print
$) Items of female Jev~lry.
Page 5 of 9
The above-meutioued items, along with all other personal
proper~y of any nature located at the narital residence, except-~or the
previously nentloned' tool~, $~-11_ cousttt~te th~ soHe and exclusive
Each sE r~e imrties hezeb~ s-~ecl~ica~:y reHeases and utyes any
claims which he o~ she may have with respect ~o :hose items o£ personal
p=oper~y h~reby traaafez~l uo the other.
Husband shall BAke execute amd del~ver all documents in the
and to Clm ~eal estate knova aa ~0~ Petersburg .~oad, Carlisle,
Pennay~aula.
The maid coaveyance ~ be £ree of all lieme amd autumn-antes
e~cep~ the lies of r~e exietiu~ aorr~nge ~ s~ ~ u~er ~ ~bJect
~ r~ estate, or p~e~, ~ ~ ~i~e.
Although HusBand shall czaua£e~ all iace~eat in the real ee~a~e
o~ the aBove-meutioae~ preai.es co ~ile, Kuatax~ agrees co leave hie name
om rime moru~a~e o~ ~ preaisee unroll such ulme aa the mortgage is paid
in £ull or the proper~y is sold. ~i~e hereby ~uarannees
Huaband and ~o-hold hl~ haraless ~or any amd al~ payments due
acco~d,,,,,~e with the cerzs o~ the ~ortgage exi~tln~ a~aimet the real
The doc~em~ 'conveying title to the real estate shall be
. executed by Husband and delivered to gife on or before the .date of'
execution o~ ~his Agreement. -
1. Wife shall trans.~er 2o Kusbau~ all o~ her right, title an~
interest ia amd ~o a Toyota Corolla auto~b~le.
2. Husband sbal~ trans£er to Wife ail of his right, ~ltle and
interest in an~ to a i~91 Toyota C~ar~ au~ a I9~ Chevelle.
SEPA2ATE ASSETS
~e. tease. E~cep: as other~se provided ia this Agreee~ent,
~rcies ~re~ agree t~t ~ co ~ch o~ t~l: sea:ate assets,
pcssessioa of ~y ~lc~r serrate asse~ here~
rela~ea, reliu~$~a amd ~oreve~ a~oos any
to or ~a~esioa o[ a ge~rate ~$et ia ~he sole a~ excl~sive
o~er thereo~.
Page 6 o£ ~
De_~i~ttou: The tern 'separate aase~'
C~ sole ~ o~ a par~y ~re~o or
~eo ~ ~C~cle~ ~saet ~ich ~s presently ~n t~ sole
~esatou o~ one o~ the ~:c~es
Ce
ru4e~tficatioe as Co exp~flaee: The
~e, ~l~t~ ~cco~ey~' fees a~ 1ute:est, ~ch
the ~uCuze i~u~ vtth :es~ct co the~ serrate ae~cs
de~u~ ~rein.
· VL~e and Rusl~-a hereby specifically release a~ ~t~ ~y ~
~l~ge ~ ~e ~C ~y 8~ ~ecuce' ~y d~ncs C~C ~y ~
~q~=~ f=~ C~ co c~ co acc~l~sh the ~~8 of c~8 Ptr~raph.
Each of the pardi, es sha~ hereafter own anal eu:Jo7, hxlepeuaeut[y
of any cla~n or ~sht ot t~ ocher, ~1 pretty ~q~=~ ~ ~ or ~=
~Cer c~ ~ecu~oa o~ C~ ~e~uc, ~ch ~ ~er tn h~m o= ~r to
~s~se o~ C~ ~ ~. thigh ~ o= ~ ~re u~led.
~ST~ ~ ~ O~C~ONS
Husband and V:f.~e have apecLffically agreed chac the debts l~8ced"-.
below vil.], be Paid as ~'ol.l. ov~:
1) Rusban~ a&ree, to Pay in full any charges previously
incuzwed or t~u~ ~ C~e future, om C~e HonCg~ ~a~'8,
~sco~r, ~ ~ c~:ge ~rd8 ;~ncly issued In t~ ~s
of ~:h ~rcie,, Hus~ ~o ~rees to pay tn f.ll a per~o~
loaa ~ch c~ D~CU.
2) V/~e and Husband agree chat each ~r~LL pay in full any"
charges prey~eouely lucurred or ~.ncurred in :he £u:ure on :he
charge cards Issued in each pa.-~cies' lndiv~dual name and :ha:
liable for any char&es ~.ncurred on :he card issued ~n the name
of the ocher parc)..
Each party represents and a~rees chat he or she bas nec
heretofore contracce(t ior any debt, liab/~.icy or obllga:~ou :uclud~n&
chose for which th~ ocher or the estate of the other may be responsible
Fags 7 of 9
Each .pa~cy has carefully re~d and fully considered ~:h~o
A~eemeu~ &nc[ a~ o/~ ~:he ~&~emenCef l:e~us, coflcli~:~oas ami proylslo~
t::bxereof prL,o= t:o s:L~u:f.n~ belov.
Page 8 oE g
Public Eot chi C~av~ch of Pe~lv~a] res~ tn ~ ~y
ac~o~l~ ~ 8~ ~u~ ~ ~ for c~ ~ses ~he~ein
se~.L o
~qXS$ I~[IXEOI~, I ha~e hereunto set ay
N~TARIAL Sal Nob~ ~bac ~ ' '
Judith Ann Valentine, Notary Public I '
C~rlisle, Cumber!andCounty I
My Commission ~pirss Nov. 12, 19~!
C0~i~. 0F P~$~VAh~A
On ~:hls, the ~ day of .~..k',~ , 1.99&, before me a Nol:at'y
Public t[or l:he Commo~eal~:h of Pennsy~Lvania,I real. d~.u~ in the Couuty
oiOtj~f.L~, pe~raonal3.y appeared EI.~ F. Baker, knovn ~:o me ~:o be
i;he person -,,-hose name is eab$cribed ~:o ~:he ~l. thl~ &&ree~en~: aod
acknowledged that he execute~ the ~a~ for'the pttrposes therein
contalnefl.
! Judith Ann Valentine, Notary Pub!i~ ~ ub~ -
! Carlisle, Cum~rtand County I
I My Commission Ezpi~-ss Nov. 12, 1994 J
Page 9 o[ 9 ..
VERIFICATION
I, Elwood F. Baker, hereby certify that the facts set forth in the following Amended Answer are
based upon information which I have furnished to counsel, as well as upon information which has been
gathered by counsel and/or others acting on my behalf in this matter. The language in the Amended
Answer is that of counsel and not my own. I have read the Amended Answer, and to the extent it is
based upon information that I have given to counsel, it is true and correct to the best of my knowledge,
information and belief. To the extent that the content of the Amended Answer is that of counsel, I have
relied upon counsel in making this Verification. I hereby acknowledge that the facts set forth in the
aforesaid Amended Answer are made subject to the penalties of 18 Pa.C.S.A. {}4904 relating to
unswom falsification to authorities.
Dated:
Elwood F. Baker
NANCY A. BAKER,
Plaintiff,
V.
ELWOOD F. BAKER,
Defendant.
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CIVIL DIVISION
:
: NO. 00-7903 Civil
CERTIFICATE OF SERVICE
I, Herbert Corky Goldstein, Esquire, attorney for Defendant, Elwood F. Baker, hereby certify
that I this day served a copy of the foregoing Amended Answer upon the person(s) indicated below by
depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania,
and addressed as follows:
Gregory L. Cutler, Esq.
50 East High Street
Carlisle, Pennsylvania 17013
Dated:
By:
Respectfully Submitted,
Law Offices of Herbert Corky Goldstein, Esq.
Identification No. 7182
204 State Street
P.O. Box 10463
Harrisburg, Pennsylvania 17105--0363
(717) 236- 6491
Attorney for Defendant
NANCY A. BAKER,
Plaintiff,
V.
ELWOOD F. BAKER,
Defendant.
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CIVIL DIVISION
:
: NO. 00-7903 Civil
PRAECIPE
TO THEPROTHONOTARY:
Pursuant to the attached certificate of concurrence, please remove the above referenced matter
from the January 3, 2001, Argument Court list.
Dated: &, c2tf ~o~OOfl By:
Respectfully Submitted,
Law Offices of Herbert Corky Goldstein, Esq.
H'~~E~~'~~/Y ~OLDSTEIN, ESQ.~
Identification No. 7182
204 State Street
P.O. Box 10463
Harrisburg, Pennsylvania 17105--0363
(717) 236 - 6491
Attorney for Defendant
CERTIFICATE OF CONCURRENCE
I, Herbert Corky Goldstein, Esquire, do hereby certify that I have contacted Gregory L. Cutler,
Esquire, counsel for Plaintiff Nancy A. Baker, and was informed that he did concur in the removal of
the above referenced matter from the January 3, 2001, Argument Court list.
Dated:
NANCY A. BAKER,
Plaintiff,
¥.
ELWOOD F. BAKER,
Defendant.
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CIVIL DIVISION
:
: NO. 00-7903 Civil
CERTIFICATE OF SERVICE
I, Herbert Corky Goldstein, Esquire, attorney for Defendant, Elwood F. Baker, hereby certify
that I this day served a copy of the foregoing Praecipe upon the person(s) indicated below by depositing
a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, and
addressed as follows:
Gregory L. Cutler, Esq.
50 East High Street
Carlisle, Pennsylvania 17013
Dated:
By:
Respectfully Submitted,
Law Offices of Herbert Corky Goldstein, Esq.
Identification No. 7182
204 State Street
P.O. Box 10463
Harrisburg, Pennsylvania 17105--0363
(717) 236 - 6491
Attorney for Defendant
NANCY A. BAKER,
Plaintiff
V.
ELWOOD F. BAKER,
Defendant
· IN THE COURT OF COMMON PLEAS OF
· CUMBERLAND COUNTY, PENNSYLVANIA
' CIVIL DIVISION
: No. 00-7903 Civil
PLAINTIFF'S ANSWER TO DEFENDANT'S NEW MATTER
AND COUNTERCLAIMS
19. Denied. The Plaintiff did not inform the Defendant that the Attomey handling the
divorce had prepared the Property Settlement Agreement, or that it was balanced, fair, and
required under the law. By way of further answer, the Defendant was the Plaintiff in the Divorce
Action and retained the Attorney handling the divorce, therefore, he knew, or should have
known, that said Attorney did not prepare the agreement, and that an agreement was not required
under the law.
20. Denied. The Plaintiff never informed the Defendant what Christina Gill
(Roseman) thought of the agreement.
21. Denied· The Plaintiff avers that the Defendant signed the agreement because the
terms were very favorable to him.
22. Denied· Christina Gill (Roseman) faxed a Property Settlement Agreement form to
the Plaintiff and the Defendant to aid them in preparation of the agreement· The Plaintiff and
Defendant reviewed the form and made agreed upon changes, which were then faxed to Christina
Gill (Roseman) to type so that it could be formalized as a Property Settlement Agreement. The
terms agreed upon are accurately represented in Plaintiff's Exhibit "A".
23. Denied. The Plaintiff did not deceive the Defendant, and the agreement is very
favorable to the Defendant.
24. Denied. The Defendant obtained his tools in accordance with the agreement and
traded them for a waterbed owned by James E. Garrick. In addition, the tools were not worth
$12,000.
25. Denied. The Plaintiff never agreed to transfer the Salvadore Dali Print to the
Defendant, and never represented that the written agreement was irrelevant. In addition, the
agreement provides on page 3 that all waivers or modifications are to be in writing, therefore,
this defense is barred by the Parol Evidence Rule.
26. Denied. Plaintiff's answer to paragraphs 44-48 are incorporated herein by
reference. This is a conclusion of law which requires no response. Proof is demanded at trial.
27. Denied. The agreement embodies the terms which the Plaintiff and Defendant
intended. The Plaintiff never intended to transfer the Salvadore Dali Print to the Defendant,
therefore, there is not a mutual mistake.
Denied. The Plaintiff's answer to Paragraph 21 is incorporated herein by
This is a conclusion of law which does not require an answer. Proof is demanded at
28.
reference.
trial.
29.
30.
Exhibit "A".
31.
32.
Denied. An answer is not required.
Admitted. To the extent that Defendant's Exhibit 1 coincides with Plaintiff's
Admitted.
Denied. Defendant never demanded surrender of the tools. Plaintiff's answer to
Paragraph 24 is incorporated herein by reference.
33.
34.
demanded at trial.
35. Denied.
demanded at trial.
36.
Denied. Plaintiff's answer to Paragraph 32 is incorporated herein by reference.
Denied. This is a conclusion of law which does not require a response. Proof is
This is a conclusion of law which does not require a response. Proof is
37.
Admitted in part Denied in Part. The applicable Paragraph provides as follows:
"In the event that either party breaches any provision of this Agreement and the
other party retains counsel to assist in enforcing the terms thereof, the breaching
party will pay all attorney's fees, court cost and expenses (including interest and
travel cost if applicable) which are incurred by the other party in enforcing this
Agreement, whether enforcement is ultimately achieved by litigation or by
amicable resolution. It is the specific Agreement and intent of the parties that a
breaching, or wrong doing party shall bear the obligation of any and all cost,
expenses and counsel fees incurred by the non-breaching party in protecting and
enforcing his or her rights under this Agreement".
Denied. This is a conclusion of law which does not require a response. Proof is
demanded at trial.
38.
39.
reference.
An answer is not required.
Denied. Paragraphs 25 and 27 of the Plaintiff's answer are incorporated herein by
40. Denied.
Denied.
Dali print to the Defendant.
the Agreement.
41. Denied.
reference.
42.
demanded at trial.
The Defendant never demanded that the Plaintiff surrender the Salvadore
The Salvadore Dali Print is the property of the Plaintiff pursuant to
The Plaintiff's answer to Paragraph 40 is incorporated herein by
This is a conclusion of law which does not require a response. Proof is
43.
44.
45.
reference.
46.
reference.
47.
reference.
48.
by reference.
49. Denied.
demanded at trial.
50. Denied.
demanded at trial.
Denied. Paragraphs 40-42 are incorporated herein by reference.
An answer is not required.
Denied. Plaintiff's answer to Paragraphs 25,27, and 40 are incorporated herein by
Denied. The Plaintiff's answer to Paragraph 45 is incorporated herein by
Denied. The Plaintiff's answer to Paragraph 21 is incorporated herein by
Denied. The Plaintiff's answer to Paragraphs 45 and 47 are incorporated herein
This is a conclusion of law which does not require a response. Proof is
This is a conclusion of law which does not require a response. Proof is
WHEREFORE, the Plaintiff demands judgement upon the Defendant, and all relief
deemed appropriate.
THE LAW OFFICES OF PAUL BRADFORD ORR
BY:
Greg0ry~.. Cu~ler, Esquire
Attorney for Plaintiff
Supreme Court ID # 73471
50 East High Street
Carlisle, PA 17013
(717) 258-8558
VERIFICATION
I verify that I am the Plaintiff and that the statements made in the foregoing
PlaintiWs Answer to Defendant's New Matter and Counterclaims are true and correct.
understand that false statements herein are made subject to the penalties of Pa. C.S. §
4904, relating to unsworn falsification to authorities.
DATE:
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this date a tree and correct copy of the foregoing
Plaintiff's Answer to Defendant's New Matter, and Counterclaims was served by regular, first-
class U.S. Mail, postage prepaid, upon the following:
Herbert Corky Goldstein, Esquire
204 State Street
PO Box 10363
Harrisburg, POA 17105-0363
Date:
Gregory C~. Cu~er; Esquire
NANCY A. BAKER,
Plaintiff
ELWOOD F. BAKER,
Defendant
· IN THE COURT OF COMMON PLEAS OF
· CUMBERLAND COUNTY, PENNSYLVANIA
· CIVIL DIVISION
· JURY TRIAL DEMANDED
· No. 00-7903 Civil
AMENDED COMPLAINT
The Plaintiff, Nancy A. Baker, by and through her attorneys, the Law Offices of Paul
Bradford Orr, with consent of the Defendant's Counsel, which is attached hereto, respectfully
amends her complaint as follows:
51. Paragraphs 1-13 and 15-18 of the Plaintiff's Complaint are incorporated herein by
reference.
52. Pursuant to 23 Pa. C.S.A. § 3105 (c) a provision of an agreement between the
parties regarding the disposition of counsel fees or expenses shall not be subject to modification
by the court.
53. Page five (5) of the Settlement Agreement (hereinafter the Agreement), marked as
Plaintiff' s Exhibit "A" of the Plaintiff' s Complaint, under the heading of Personal Property
provides that the Husband (Elwood F. Baker, Defendant) transfer all his right, title, and interest
in the Salvadore Dali print to the Wife (Nancy A. Baker, Plaintiff).
54. Page six (6) of the Agreement under the heading of Motor Vehicles provides that
the Husband transfer all his right, title, and interest in the 1966 Chevrolet Chevelle to the Wife.
55. Page three (3) of the Agreement under the heading Other Documentation provides
that the parties will execute all documents necessary to effectuate the Agreement.
56. The Defendant has not executed the documents necessary to transfer his right,
title, and interest in the Salvador Dali Print and the 1966 Chevrolet Chevelle to the Wife.
57. The Defendant's failure to execute the documents necessary to transfer his right,
title and interest in the Salvadore Dali Print and the 1966 Chevrolet to the Wife constitutes a
breach of contract.
WHEREFORE, Plaintiff demands judgement against the Defendant for compensatory
damages, interest, and attorney's fees, plus all other damages, court costs, expenses, and relief
that this Court deems appropriate.
COUNT II - FRAUD
58. Paragraphs 1-3 of the Plaintiff's Complaint are incorporated herein by reference.
59. Page four (4) and five (5) of the Agreement under the heading Monetary
Settlement provides that the Husband will pay Wife the sum of thirty thousand ($30,000) dollars
in consideration of Wife's full release of any claims in Husband's pension.
60. The Husband represented to the Wife that thirty Thousand ($30,000) dollars was
an accurate reflection of her interest in his pension.
61. The Defendant knew, or should have known, that thirty thousand ($30,000)
dollars was not an accurate reflection of her interest in his pension.
62. The Defendant did not fully or fairly disclose to the Plaintiff the value of his
pension.
63. The Plaintiff relied on the misrepresentations of the Defendant concerning the
value of his pension to her detriment.
64. The Defendant's actions constitute fraud.
WHEREFORE, Plaintiff demands judgement against the Defendant for
compensatory and punitive damages, interest, and attorney's fees, plus all other damages, court
costs, and expenses, and relief that this Court deems appropriate.
COUNT III - MISREPRESENTATION
Paragraphs 58-64 of the Plaintiff's Amended Complaint are incorporated herein by
65.
reference.
66. The Defendant's actions constitute a material representation.
WHEREFORE, Plaintiff demands judgement against the Defendant for compensatory
and punitive damages, interest, and attorney's fees, plus all other damages, court costs, and
expenses, and relief that this Court deems appropriate.
NANCY A. BAKER,
Plaintiff
V.
ELWOOD F. BAKER,
Defendant
· IN THE COURT OF COMMON PLEAS OF
· CUMBERLAND COUNTY, PENNSYLVANIA
:
· CIVIL DIVISION
:
· No. 00-7903 Civil
CONSENT TO ALLOW THE PLAINTIFF.
TO AMEND THE COMPLAINT
Date:
1. Pursuant to Pa. R.C.P. No. 1033 undersigned counsel gives consent
to the Plaintiff to file an Amended Complaint.
204 State Street
P.O. Box 10463
Harrisburg, Pa. 17105-0363
(717) 236-6491
Attorney for Defendant
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this date a tree and correct copy of the foregoing
Amended Complaint was served by regular, first-class U.S. Mail, postage prepaid, upon the
following:
Herbert Corky Goldstein, Esquire
204 State Street
PO Box 10363
Harrisburg, POA 17105-0363
Date://~~//
Grego~ry . ~)d , q'
VERIFICATION
I verify that I am the Plaintiff and that the statements made in the foregoing
Amended Complaint are true and correct. I understand that false statements herein are
made subject to the penalties of Pa. C.S. § 4904, relating to unsworn falsification to
authorities.
DATE:
NANCY A. BAKER,
Plaintiff,
V.
ELWOOD F. BAKER,
Defendant.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
NO. 00-7903 Civil
NOTICE
TO:
Nancy A. Baker,
C/O Gregory L. Cutler, Esq.
50 East High Street
Carlisle, Pennsylvania 17013.
YOU ARE HEREBY NOTIFIED that the Preliminary Objections set forth herein contain
averments against you to which you are required to respond within twemy (20) days after service
thereof or a judgment may be entered against you.
Law Offices of Herbert Corky Goldstein, Esq.
Dated:
By:
Idemification No. 7182
204 State Street
P.O. Box 10463
Harrisburg, Pennsylvania 17105-0363
(717) 236- 6491
Attorney for Defendant
NANCY A. BAKER,
Plaintiff,
V.
ELWOOD F. BAKER,
Defendant.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
NO. 00-7903 Civil
DEFENDANT ELWOOD F. BAKER'S PRE!,IMINARY OBJECTIONS
TO PLAINTIFF'S AMENDED COMPLAINT
AND NOW comes Defendant, Elwood F. Baker, by and through his attorney, Herbert Corky
Goldstein, Esquire, to file the following Preliminary Objections against Plaintiff Nancy A. Baker's
Amended Complaint:
Preliminary Objection in the Nature of a Motion to Strike
Plaintiff's requests for punitive damages in Count Il and Count
III of Plaintiff's Amended Complaint for reasons of Legal
Insufficiency (Demurrer) and/or Failure of Pleading to Conform
to Law.
1. Plaintiff demands judgment for punitive damages in Count II and Count III of her
Amended Complaint.
2. Punitive damages are recoverable from an adverse party only if that party's conduct
was malicious, wanton, willful, oppressive, or exhibited a reckless indifference to the rights of
others. They are not recoverable solely for a breach of conduct. Johnson v. Hyundai Motor
America, ~ Pa. Super. ,698 A.2d 631,639 (1997).
-1-
3. A preliminary objection on the ground of legal insufficiency in the nature of a
demurrer is to be sustained and the pleading dismissed when the law is clear that no recovery is
possible.
4. Plaintiff's Amended complaint fails to allege facts sufficient to show that a recovery
of punitive damages is possible.
5. Under and pursuant to Pa.R.C.P. 1028(a)(4) and 1028(a)(2), Defendant Elwood F.
Baker moves the Court for an order dismissing Plaintiff's claims for punitive damages in Count II
and Count III of her Amended Complaint.
WHEREFORE, Defendant Elwood F. Baker respectfully requests this Court to strike
Plaintiff's claims for punitive damages in Counts II and III of her Amended Complaint for legal
insufficiency and/or failure of pleading to conform to law.
II. Preliminary Objection in the Nature of a Motion to Strike Count
III of Plaintiff's Amended Complaint for Legal Insufficiency
(Demurrer) and/or Insufficient Specificity
6. In Count III of her Amended Complaint, Plaintiff alleges that "Defendant's actions
constitute a material representation." (Amended Complaint, ~[66).
7. Under Pennsylvania law, no such cause of action exists for a material representation.
8. Altematively, Plaintiff's Amended Complaint fails to specify what actions
constituted the alleged material representation. As such, Defendant is unable to ascertain from the
-2-
Amended Complaint, in its present state, the nature of the material representation claim asserted
with sufficient precision to prepare a responsive pleading.
9. Under and pursuant to Pa.R.C.P. 1028(a)(4) and 1028(a)(3), Defendant Elwood F.
Baker moves the Court for an order dismissing Count III of Plaintiff's Amended Complaint on the
ground that Plaintiff has failed to state a cause of action, or alternatively failed to plead the cause of
action with sufficient specificity to enable Defendant to prepare a responsive pleading to the alleged
claim.
WHEREFORE, Defendant Elwood F. Baker respectfully requests this Court to strike Count
III of Plaintiff's Amended Complaint for legal insufficiency and/or insufficient specificity in the
pleading.
III.
Preliminary Objection in the Nature of a Motion to Strike Count
II of Plaintiff's Amended Complaint for Insufficient Specificity
10. Plaintiff alleges in Count II of her Amended Complaint that the Defendant did not
fully or fairly disclose the value of his pension and that this alleged action constitutes fraud.
(Amended Complaint, 7162).
11.
particularity.
Under Pa.R.C.P.
1019(b) Plaintiff is required to plead averments of fraud with
12. Plaintiff fails to specify what Defendant claimed the true value of his pension was.
13. Plaintiff fails to specify what the true value of the Defendant's pension was at the
time that these alleged actions occurred.
-3-
14. Pa.R.C.P. 1019(f) requires that averments of time, place and items of special damage
be specifically stated.
15.
his pension.
Plaintiff fails to specify when or where Defendant failed to fully disclose the value of
16. As such, Defendant is unable to ascertain from the Amended Complaint, in its
present state, the nature of the claim asserted with sufficient precision to prepare a responsive
pleading to this allegation.
17. Under and pursuant to Pa.R.C.P. 1028(a)(3), Defendant Elwood F. Baker moves this
Court for an order striking Count II of Plaintiff's Amended Complaint for failure to plead with
sufficient specificity to enable Defendant to prepare a responsive pleading to the alleged claim.
WHEREFORE, Defendant Elwood F. Baker respectfully requests this Court to strike Count
II of Plaintiff' s Amended Complaint for insufficient specificity in the pleading.
Dated:
Respectfully Submitted,
Law Offices of Herbert Corky Goldstein, Esq.
By:
HERBERT £
Identification No. 7182
204 State Street
P.O. Box 10463
Harrisburg, Pennsylvania 17105--0363
(717) 236- 6491
Attorney for Defendant
-4-
NANCY A. BAKER,
Plaintiff,
V.
ELWOOD F. BAKER,
Defendant.
· IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
NO. 00-7903 Civil
CERTIFICATE OF SERVICE
I, Herbert Corky Goldstein, Esquire, attorney for Defendant, Elwood F. Baker, hereby certify
that I this day served a copy of the foregoing Preliminary Objections upon the person(s) indicated
below by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg,
Pennsylvania, and addressed as follows:
Gregory L. Cutler, Esq.
50 East High Street
Carlisle, Pennsylvania 17013
Dated:
Respectfully Submitted,
Law Offices of Herbert Corky Goldstein, Esq.
HERBERT CORKtII~ GOLDSTEIN, ESQ
Identification No. 7182
204 State Street
P.O. Box 10463
Harrisburg, Pennsylvania 17 I~05--0363
(717) 236- 6491
Attorney for Defendant
-5-
NANCY A. BAKER,
Plaintiff
· IN THE COURT OF COMMON PLEAS OF
· CUMBERLAND COUNTY, PENNSYLVANIA
· CIVIL DIVISION
· JURY TRIAL DEMANDED
· No. 00-7903 Civil
ELWOOD F. BAKER, ·
Defendant .
NOTICE
YOU HAVE BEEN SUED 1N COURT· If you wish to defend against the claims set forth in the
following Complaint, you must take action within twenty (20) days after this Complaint and
Notice are served, by entering a written appearance personally or by attorney and filing in
writing with the Court your defenses or objections to the claims set forth against you. You are
warned that if you fail to do so, the case may proceed without you and a judgment may be
entered against you by the Court without further notice for any money claimed in the Complaint
or for any other claim or relief requested by the Plaintiff. You may lose money or property or
other rights important to you.
YOU SHOULD TAKE 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
Phone: (717) 249-3166
NANCY A. BAKER,
Plaintiff
Vo
ELWOOD F. BAKER,
Defendant
· 1N THE COURT OF COMMON PLEAS OF
· CUMBERLAND COUNTY, PENNSYLVANIA
· CIVIL DIVISION
· JURY TRIAL DEMANDED
· No. 00-7903 Civil
SECOND AMENDED COMPLAINT
The Plaintiff, Nancy A. Baker, by and through her attorneys, the Law Offices of Paul
Bradford Orr, with consent of the Defendant's Counsel, which is attached hereto, respectfully
amends her complaint as follows:
51. Paragraphs 1 - 13 and 15-18 of the Plaintiff' s Complaint are incorporated herein by
reference.
52. Pursuant to 23 Pa. C.S.A. § 3105 (c) a provision of an agreement between the
parties regarding the disposition of counsel fees or expenses shall not be subject to modification
by the court.
53. Page five (5) of the Settlement Agreement (hereinafter the Agreement), marked as
Plaintiff's Exhibit "A" of the Plaintiff's Complaint, under the heading of Personal Property
provides that the Husband (Elwood F. Baker, Defendant) transfer all his right, title, and interest
in the Salvadore Dali print to the Wife (Nancy A. Baker, Plaintiff).
54. Page six (6) of the Agreement under the heading of Motor Vehicles provides that
the Husband transfer all his right, title, and interest in the 1966 Chevrolet Chevelle to the Wife.
55. Page three (3) of the Agreement under the heading Other Documentation provides
that the parties will execute all documents necessary to effectuate the Agreement.
56. The Defendant has not executed the documents necessary to transfer his right,
title, and interest in the Salvador Dali Print and the 1966 Chevrolet Chevelle to the Wife.
57. The Defendant's failure to execute the documents necessary to transfer his right,
title and interest in the Salvadore Dali Print and the 1966 Chevrolet to the Wife constitutes a
breach of contract.
WHEREFORE, Plaintiff demands judgement against the Defendant for compensatory
damages, interest, and attorney's fees, plus all other damages, court costs, expenses, and relief
that this Court deems appropriate.
COUNT II - FRAUD
58. Paragraphs 1-3 of the Plaintiff's Complaint are incorporated herein by reference.
59. Page four (4) and five (5) of the Agreement trader the heading Monetary
Settlement provides that the Husband will pay Wife the sum of thirty thousand ($30,000) dollars
in consideration of Wife's full release of any claims in Husband's pension.
60. During negotiation of the Agreement the Husband represented to Wife that thirty
thousand ($30,000) dollars was an accurate reflection of her interest in his pension.
61. The Defendant knew, or should have known, that thirty thousand ($30,000)
dollars was not an accurate reflection of her interest in his pension.
62. The Defendant did not fully or fairly disclose to the Plaintiff the value of his
pension.
63. The Plaintiff relied on the misrepresentations of the Defendant concerning the
value of his pension to her detriment.
64. The Defendant's actions constitute fraud.
WHEREFORE, Plaintiff demands judgement against the Defendant for
compensatory and punitive damages, interest, and attorney's fees, plus all other damages, court
costs, and expenses, and relief that this Court deems appropriate.
THE LAW OFFICES OF PAUL BRADFORD ORR
GregorfL. kfutler
50 East High Street
Carlisle, PA 17013
ID # 73471
(717) 258-8558
VERIFICATION
I verify that I am the Plaintiff and that the statements made in the foregoing
Amended Complaint are true and correct. I understand that false statements herein are
made subject to the penalties of Pa. C.S. § 4904, relating to unswom falsification to
authorities.
DATE:
I~ cy ~//B~tker '--
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this date a true and correct copy of the foregoing
Amended Complaint was served by regular, first-class U.S. Mail, postage prepaid, upon the
following:
Herbert Corky Goldstein, Esquire
204 State Street
PO Box 10363
Harrisburg, POA 17105-0363
Date:
NANCY A. BAKER,
Plaintiff,
V.
ELWOOD F. BAKER,
Defendant.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
NO. 00-7903 Civil
NOTICE
TO:
Nancy A. Baker, C/O Gregory L. Cutler, Esq., 50 East High Street, Carlisle, Pennsylvania
17013.
YOU ARE HEREBY NOTIFIED that the New Matter and Counterclaims set forth herein
contain averments against you to which you are required to respond within twenty (20) days after
service thereof. Failure by you to do so may constitute an admission.
Dated: .,/~,~ff~,~ 0~7// By:
Law Offices of Herbert Corky Goldstein, Esq.
I imER r CORK¥150mS N, ESQ.
Identification No. 7182
204 State Street
P.O. Box 10463
Harrisburg, Pennsylvania 17105~-0363
(717) 236 - 6491
Attorney for Defendant
-1-
NANCY A. BAKER,
Plaintiff,
V.
ELWOOD F. BAKER,
Defendant.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
NO. 00-7903 Civil
ANSWER
TO PLAINTIFF'S SECOND AMENDED COMPLAINT
AND NOW comes the Defendant, Elwood F. Baker, by and through his attorney, Herbert
Corky Goldstein, Esquire, to answer Plaintiff's Second Amended Complaint as follows:
Paragraphs 1-13 and 15-18 of Defendant's Amended Answer are hereby incorporated as
51.
· if fully set forth herein.
52. The statute speaks for itself.
53. The agreement speaks for itself. In further response, it is denied that the Settlement
Agreement marked as Plaintiff's Exhibit "A" of the Plaintiffs Complaint is a true and correct copy of
the Settlement Agreement. More specifically, the signatures of both the parties and the witnesses on
Plaintiffs Complaint do not comport with those on the original document. In still further response,
Defendant incorporates the defenses of fraud, oral contract varying the written contract, mutual mistake
and unconscionability as more specifically set forth in Defendant's New Matter herein.
54. The agreement speaks for itself. In further response, it is denied that the Settlement
Agreement marked as Plaintiffs Exhibit "A" of the Plaintiff's Complaint is a true and correct copy of
the Settlement Agreement. More specifically, the signatures of both the parties and the witnesses on
Plaintiffs Complaint do not comport with those on the original document.
55. The agreement speaks for itself. In further response, it is denied that the Settlement
Agreement marked as Plaintiffs Exhibit "A" of the Plaintiffs Complaint is a true and correct copy of
-2-
the Settlement Agreement. More specifically, the signatures of both the parties and the witnesses on
Plaintiff's Complaint do not comport with those on the original document.
56. Denied. Defendant is without knowledge or information sufficient to form a belief as to
what "documents" plaintiff is referring to. Accordingly, said averment is denied and strict proof thereof,
if admissible, is demanded at time of trial. In further response, paragraphs 68 to 77 of Defendant New
Matter herein are incorporated as if fully set forth herein.
57. Denied. This averment states a conclusion of law to which no further response is
necessary or appropriate. Accordingly, said averment is denied and strict proof thereof, if admissible, is
demanded at time of trial. In further response, paragraphs 53 through 56 of Defendant's Answer to
Plaintiffs Second Amended Complaint are incorporated as if fully set forth herein.
WHEREFORE, Defendant Elwood F. Baker respectfully request this Honorable Court to
dismiss Plaintiff Nancy A. Baker's Second Amended Complaint with prejudice.
COUNT II - FRAUD
58. Paragraphs 1-3 of Defendant's Amended Answer are hereby incorporated as if fully set
forth herein.
59. The agreement speaks for itself. In further response, it is denied that the Settlement
Agreement marked as Plaintiffs Exhibit "A" of the Plaintiff's Complaint is a true and correct copy of
the Settlement Agreement. More specifically, the signatures of both the parties and the witnesses on
Plaintiffs Complaint do not comport with those on the original document.
60. Denied. Defendant made no representations concerning Plaintiff's interest in his pension.
Defendant and Plaintiff had no discussions concerning the value of Defendant's pension. To the
contrary, Plaintiff arrived at the figure of thirty thousand dollars ($30,000.00) on her own behalf. 61.
Denied. Paragraph 60 of Defendant's Answer to Plaintiffs Second Amended Complaint is
incorporated as if fully set forth herein.
62. Denied. Paragraph 60 of Defendant's Answer to Plaintiff's Second Amended
Complaint is incorporated as if fully set forth herein.
63. Denied. Paragraph 60 of Defendant's Answer to Plaintiff's Second Amended Complaint
is incorporated as if fully set forth herein.
64. Denied. This averment states a conclusion of law to which no further response is
necessary or appropriate. Accordingly, said averment is denied and strict proof thereof, if admissible, is
demanded at time of trial.
WHEREFORE, Defendant Elwood F. Baker respectfully request this Honorable Court to
dismiss Plaintiff Nancy A. Baker's Second Amended Complaint with prejudice.
NEW MATTER
Further answering the averments of Plaintiff's Second Amended Complaint, Defendant avers:
65. Plaintiff's complaint seeks damages from defendant on the claim that defendant
fraudulently represented to Plaintiff that the sum of thirty thousand dollars ($30,000.00) was an
accurate reflection of her interest in his pension.
66. On July 13, 1994, plaintiff released defendant from any and all liability on this cause of
action, as evidenced by the written release executed by plaintiff as set forth in the Settlement Agreement
on page 7 under the heading "Retirement Benefits", a copy of which is attached to Defendant's
Amended Answer as Exhibit 1.
67. Plaintiff, having previously released defendant on the cause of action on which the
complaint is partially based, is barred from here recovering against defendant on said cause of action.
Accordingly, Defendant raises the defense of release.
-4-
68. Prior to executing the agreement sued upon by Plaintiff, Plaintiff, with the intent to
deceive and defraud Defendant, falsely represented to Defendant that the law firm that had handled the
divorce prepared the property settlement agreement, and that the agreement was balanced, fair and was
required under the law.
69. With further intent to deceive and defraud Defendant, Plaintiff falsely represented that
Plaintiffs niece, Christine Gill, a law student and judicial clerk, stated that the property settlement
agreement was balanced, fair and was required under the law.
70. Defendant avers that he believed Plaintiff's statements and in reliance thereon, signed the
property settlement agreement.
71. Unknown to Defendant, the property settlement agreement was drafted by Plaintiffs niece,
Christine Gill, and was not drafted by the law firm that handled the divorce.
72. Defendant avers that Plaintiff made the above-mentioned statements with the intent to
fraudulently induce Defendant to sign a property settlement agreement, that was disproportionate, unfair
and oppressive. Accordingly, Defendant raises the defense of fraud.
73. Defendant denies that Plaintiff performed all of Plaintiffs obligations under the
agreement. In this connection, Defendant alleges that Plaintiff failed to perform such contract
obligations in that Plaintiff failed to surrender Defendant's tools upon Defendant's demand. Said tools
are worth more than twelve thousand dollars ($12,000.00). Accordingly, Defendant raises the defense
of nonperformance.
74. The Defendant avers that at the time of the execution of the agreement upon which the
Plaintiff brings this action, it was agreed by and between the said Plaintiff and Defendant that all of
Plaintiffs right, title and interest in the Salvadore Dali print would be transferred to Defendant, the
-5-
terms of which agreement were omitted from the aforesaid written agreement by mason that Plaintiff
informed Defendant that the written agreement was irrelevant and that despite the terms of the written
agreement, Plaintiff intended to transfer all of Plaintiffs right, title and interest in the Salvadore Dali
print to Defendant. Accordingly, Defendant raises the defense of oral contract varying written contract.
75. Paragraphs 93 through 99 of Defendant's Counterclaim sounding in fraud are
incorporated as if fully set forth herein. Accordingly, Defendant raises the defense of fraud.
76. When Plaintiff and Defendant executed the agreement sued upon by Plaintiff, both
Plaintiff and Defendant believed that all of Plaintiff's right, title and interest in the Salvadore Dali print
would be transferred to Defendant and fully intended the right, title and interest to be transferred to
Defendant, but by mistake, the agreement executed by Plaintiff and Defendant transferred all of
Defendant's right, title and interest in the Salvadore Dali print to Plaintiff. Accordingly, Defendant
raises the defense of mutual mistake.
77. The agreement drafted and sued upon by Plaintiff is unfair, oppressive, violated
Defendant's reasonable expectations and reveals a gross disparity in the property settlemem between
Plaintiff and Defendant. Accordingly, Defendant raises the defense of unconscionability.
COUNTERCLAIM I
Elwood F. Baker v. Nancy A. Baker
Breach of Written Contract
78. Paragraphs 51 through 77 of Defendant's Answer to Plaintiffs Second Amended
Complaint are hereby incorporated as ff fully set forth herein.
79. On July 13, 1994, Plaintiff and Defendant entered into a contract in writing, entitled
"SETTI.PMENT AGREEMENT", a copy of which is attached to Defendant's Amended Answer as
Exhibit 1.
-6-
80. The Settlement Agreement provided, in relevant part, on page five (5) under the subtitle
"PERSONAL PROPERTY":
"Wife also hereby transfers to Husband all of her right, title and interest in and to tools
located at the marital residence, which Wife agrees to store at the marital residence. Wife
further agrees to surrender said tools to Husband upon demand."
81. Defendant repeatedly demanded that Plaintiff surrender the tools to Defendant.
82. Despite Defendant's repeated demands, Plaintiff failed and refused to surrender the tools
to Defendant.
83. PlaintiWs failure and refusal to surrender the tools to Defendant constituted a material
breach of the Settlement Agreement.
84. As a result of PlaintiWs material breach of the Settlement Agreement, Defendant has
sustained a loss in excess of twelve thousand dollars ($12,000.00).
85. Page four (4) of the Settlement Agreement under the subtitle "Attorneys' Fees for
Enforcement" provides as follows:
"IT]he breaching party will pay all attorneys' fees, court costs and expenses
(including interest and travel costs if applicable) which are incurred by the other
party in enforcing this Agreement, whether enforcement is ultimately achieved by
litigation or by amicable resolution."
86. In addition to Defendant's actual damages, Defendant has incurred attorneys fees, court
costs and expenses in enforcing the Settlement Agreement.
WHEREFORE, Plaintiff demands judgment in excess of twelve thousand dollars ($12,000.00),
plus interest, court costs, attorneys fees, and any other relief that the Court deems necessary or
appropriate.
-7-
COUNTERCLAIM II
Elwood F. Baker v. Nancy A. Baker
Breach of Oral Contract
87. Paragraphs 51 through 86 of Defendant's Answer to Plaintiff's Second Amended
Complaint are hereby incorporated as if fully set forth herein.
88. Defendant avers that at the time of the execution of the agreement upon which the
Plaintiff brings this action, it was agreed by and between Plaintiff and Defendant all of Plaintiff's right,
title and interest in the Salvadore Dali print would be transferred to Defendant.
89.
Defendant.
Defendant repeatedly demanded that Plaintiff surrender the Saivadore Dali print to
90. Despite Defendant's repeated demands, Plaintiff failed and refused to surrender the
Salvadore Dali print to Defendant.
91. PlaintiWs failure and refusal to surrender the Salvadore Dali print to Defendant
constituted a material breach of the oral agreement.
92. As a result of Plaintiff's material breach of the oral agreemem, Defendant believes, and
therefore avers, that he has sustained a loss within the limits of mandatory arbitration in Cumberland
County.
WHEREFORE, Plaintiff demands judgment within the limits of mandatory arbitration in
Cumberland County, plus interest, court costs and any other relief that the Court deems necessary or
appropriate.
-8-
COUNTERCLAIM IH
Elwood F. Baker v. Nancy A. Baker
Fraud
93. Paragraphs 51 through 92 of Defendant's Answer to Plaintiff's Second Amended
Complaint are hereby incorporated as if fully set forth herein.
94. Defendant avers that the Plaintiff, with intent to deceive and defraud Defendant, falsely
represented to the Defendant that Plaintiff intended to transfer all of Plaintiff's right, title and interest in
the Salvadore Dali print to Defendant.
95. Defendant avers that the Plaintiff, with further intent to deceive and defraud Defendant,
falsely represented to the Defendant that the written agreement was irrelevant and that despite the terms
of the written agreement, Plaintiff intended to transfer all of Plaintiff's right, title and interest in the
Salvadore Dali print to Defendant.
96. Defendant avers that he believed the Plaintiff's statements as to the Saivadore Dali print
and in reliance thereon signed the agreement.
97. Defendant avers that Plaintiff at no time intended to transfer all of her right, title and
interest in the Salvadore Dali print to Plaintiff but instead intended to fraudulently induce him to sign the
agreement transferring all of Defendant's right, title and interest in the Salvadore Dali print to
Defendant.
98. As a result of Plaintiff's fraud, Defendant believes, and therefore avers, that he has
sustained a loss within the limits of mandatory arbitration in Cumberland County.
-9-
I
99. In addition to Defendant's actual damages, Defendant has incurred attorneys fees,
court costs and expenses in enforcing the Settlement Agreement.
WHEREFORE, Plaintiff demands judgment the limits of mandatory arbitration in Cumberland
County, plus interest, court costs, attorneys fees, and any other relief that the Court deems necessary or
appropriate.
Respectfully Submitted,
Law Offices of Herbert Corky Goldstein, Esq.
HERBERT CORK~r GOLDS'rEIN, ESQ.
Identification No. 7182
204 State Street
P.O. Box 10463
Harrisburg, Pennsylvania 17105---0363
(717) 236 - 6491
Attorney for Defendant
- 10-
VERIFICATION
I, Elwood F. Baker, hereby certify that the facts set forth in the following document are based
upon information which I have furnished to counsel, as well as upon information which has been
gathered by counsel and/or others acting on my behalf in this matter. The language in the document is
that of counsel and not my own. I have read the document, and to the extent it is based upon
information that I have given to counsel, it is tree and correct to the best of my knowledge, information
and belief. To the extent that the content of the document is that of counsel, I have relied upon counsel
in making this Verification. I hereby acknowledge that the facts set forth in the aforesaid document are
made subject to the penalties of 18 Pa.C.S.A. §4904 relating to unswom falsification to authorities.
Dated:
Elwood F. Baker
-11-
NANCY A. BAKER,
Plaintiff,
ELWOOD F. BAKER, ·
Defendant. :
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
NO. 00-7903 Civil
CERTIFICATE OF SERVICE
I, Herbert Corky Goldstein, Esquire, attorney for Defendant, Elwood F. Baker, hereby certify
that I this day served a copy of the foregoing Answer to Plaintiffs Second Amended Complaint upon
the person(s) indicated below by depositing a copy of the same in the United States Mail, postage
prepaid, at Harrisburg, Pennsylvania, and addressed as follows:
Gregory L. Cutler, Esq.
50 East High Street
Carlisle, Pennsylvania 17013
Dated:
By:
Respectfully Submitted,
Law Offices of Herbert Corky Goldstein, Esq.
HERBERT ~20"I~[y/GOLDSTEII~SQ. ~/
Identification No. 7182
204 State Street
P.O. Box 10463
Harrisburg, Pennsylvania 17105---0363
(717) 236 - 6491
Attorney for Defendant
- 12-
NANCY A. BAKER,
Plaintiff
V.
ELWOOD F. BAKER,
Defendant
· IN THE COURT OF COMMON PLEAS OF
· CUMBERLAND COUNTY, PENNSYLVANIA
· CIVIL DIVISION
· No. 00-7903 Civil
PLAINTIFF'S ANSWER DEFENDANT'S NEW MATTER AND COUNTERCLAIMS
65. Denied. The plaintiff seeks damages for breach of contract and/or damages
relating to the defendant's fraud.
66. Denied. Plaintiff signed the agreement after being fraudulently induced to believe
that she was getting what would have been her fair share of the defendant's pension.
67. Denied. This is a conclusion of law which does not require an answer.
68. Denied. The Plaintiff did not inform the Defendant that the Attorney handling the
divorce had prepared the Property Settlement Agreement, or that it was balanced, fair, and
required under the law. By way of further answer, the Defendant was the Plaintiff in the Divorce
Action and retained the Attorney handling the divorce, therefore, he knew, or should have
known, that said Attorney did not prepare the agreement, and that an agreement was not required
under law.
69. Denied. The Plaintiff never informed the Defendant what Christina Gill
(Roseman) thought of the agreement.
70. Denied. The Plaintiff avers that the Defendant signed the agreement because the
terms were very favorable to him.
71. Denied. Christina Gill (Roseman) faxed a Property Settlement Agreement form to
the Plaintiff and the Defendant to aid them in preparation of the agreement. The Plaintiff and
Defendant reviewed the form and made agreed upon changes, which were then faxed to Christina
Gill (Roseman) to type so that it could be formalized as a Property Settlement Agreement. The
terms agreed upon are accurately represented in Plaintiff's Exhibit "A".
72. Denied. The Plaintiff did not deceive the Defendant, and the agreement is very
favorable to the Defendant.
73. Denied. The Defendant obtained his tools in accordance with the agreement and
traded them for a waterbed owned by James E. Garrick. In addition, the tools were not worth
$12,000.
74. Denied. The Plaintiff never agreed to transfer the Salvadore Dali Print to the
Defendant, and never represented that the written agreement was irrelevant. In addition, the
agreement provides on page 3 that all waivers or modifications are to be in writing, therefore,
this defense is barred by the Parol Evidence Rule.
75. Denied. Plaintiff' s answer to paragraphs 93-99 of defendant's counterclaim are
incorporated herein by reference. Proof is demanded at trial.
76. Denied. The agreement embodies the terms which the Plaintiff and Defendant
intended. The Plaintiff never intended to transfer the Salvadore Dali Print to the Defendant,
therefore, there is not a mutual mistake.
77.
reference.
trial.
Denied. The Plaintiff' s answer to Paragraph 70 is incorporated herein by
This is a conclusion of law which does not require an answer. Proof is demanded at
Denied.
demanded at trial.
79.
Exhibit "A".
80.
81.
This is a conclusion of law which does not require a response. Proof is
78. An answer is not required.
Admitted. To the extent that Defendant's Exhibit 1 coincides with Plaintiff's
Admitted.
Denied, Defendant never demanded surrender of the tools. Plaintiff's answer to
paragraph 73 is incorporated herein by reference.
82. Denied. Plaintiff's answer to Paragraph 81 is incorporated herein by reference.
83. Denied. This is a conclusion of law which does not require a response. Proof is
demanded at trial.
84. Denied. This is a conclusion of law which does not require a response. Proof is
demanded at trial.
85. Admitted in part Denied in Part. The applicable Paragraph provides as follows:
"In the event that either party breaches any provision of this Agreement and the
other party retains counsel to assist in enforcing the terms thereof, the breaching
party will pay all attorney's fees, court cost and expenses (including interest and
travel cost if applicable) which are incurred by the other party in enforcing this
Agreement, whether enforcement is ultimately achieved by litigation or by
amicable resolution. It is the specific Agreement and intent of the parties that a
breaching, or wrong doing party shall bear the obligation of any and all cost,
expenses and counsel fees incurred by the non-breaching party in protecting and
enforcing his or her rights under this Agreement".
86. Denied. This is a conclusion of law which does not require a response. Proof is
demanded at trial.
87. An answer is not required.
88. Denied. Paragraphs 74 and 76 of the Plaintiff's answer are incorporated herein by
reference.
89.
Dali prim to the Defendant.
the Agreement.
Denied. The Plaintiff's answer to Paragraph 89 is incorporated herein by
90.
reference.
91.
Denied. The Defendant never demanded that the Plaimiff surrender the Salvadore
The Salvadore Dali Print is the property of the Plaintiff pursuant to
demanded at trial.
92.
93.
94.
by reference.
95.
reference.
96. Denied.
reference.
97. Denied.
by reference.
98. Denied.
demanded at trial.
99. Denied.
demanded at trial.
Denied. Paragraphs 89-91 are incorporated herein by reference.
An answer is not required.
Denied. Plaintiff's answer to Paragraphs 74, 76 and 89 are incorporated herein
Denied. The Plaintiff's answer to Paragraph 94 is incorporated herein by
The Plaintiff's answer to Paragraph 70 is incorporated herein by
The Plaintiff's answer to Paragraphs 94 and 96 are incorporated herein
This is a conclusion of law which does not require a response. Proof is
This is a conclusion of law which does not require a response. Proof is
Denied. This is a conclusion of law which does not require a response. Proof is
WHEREFORE, the Plaintiff demands judgement upon the Defendant, and all relief
deemed appropriate.
THE LAW OFFICES OF PAUL BRADFORD ORR
BY:
~rregory~. C/utler, Esquire
Attorney for Plaintiff
Supreme Court ID # 73471
50 East High Street
Carlisle, PA 17013
(717) 258-8558
VERIFICATION
I verify that I am the Plaintiff and that the statements made in the foregoing
Plaintiff's Answer to Defendant's New Matter and Counterclaims are true and correct.
understand that false statements herein are made subject to the penalties of Pa. C.S. §
4904, relating to unsworn falsification to authorities.
N~(ncy'A. ~kir -
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this date a tree and correct copy of the foregoing
Plaintiff's Answer to Defendant's New Matter, and Counterclaims was served by regular, first-
class U.S. Mail, postage prepaid, upon the following:
Herbert Corky Goldstein, Esquire
204 State Street
PO Box 10363
Harrisburg, PA 17105-0363
Nancy A. Baker,
Elwood F. Baker,
Plaintiff
VS.
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Civil Division
No. 00-7903 Civil
PETITION FOR APPOINTMENT OF ARBITRATORS
The Law Offices of Paul Bradford Orr, counsel for the plaintiff in the above action, respectfully
The above-captioned action is at issue.
The claim of the plaintiff and defendant are within the limits set for arbitration pursuant to
Local Rule 1301-1.
3. The following attorney is interested in the case as counsel or are otherwise disqualified to sit
as arbitrators: Herbert Corky Goldstein, Esquire; Gregory L. Cutler, Esquire; and Paul
Bradford Orr, Esquire.
WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom
represents that:
1.
2.
the case shall be submitted.
Respectfully submitted,
50 East High Street
Carlisle, PA 17013
Telephone: (717) 258-8558
Supreme Court I.D. No. 73471
Nancy A. Baker,
Elwood F. Baker,
Plaintiff .
VS.
Defendant .
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Civil Division
No. 00-7903 Civil
CERTIFIr~TE OF SERVICE
I hereby certify that on this ~ '~ day of ""fav~.~o..,~ ,2003, I mailed a true
copy of the foregoing Petition fo~ Appointment of Arbitrators to~[he following person at the
following address by U.S. Mail, Certified mail, postage prepaid, return receipt requested, delivered
to addressee only:
Herbert Corky Goldstein, Esquire
204 State Street
P. O. Box 10463
Harrisburg, PA 17105-0363
Nancy A. Baker,
Elwood F. Baker,
Plaintiff .
Defendant .
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Civil Division
No. 00-7903 Civil
ORDER OF COURT
~u~4 ~ Esquire, fi,~ '~.j/~,~ ,~ Esquire and/~/ff.4~ X//~/Esquire are
appointed arbitrators ~ the above-captioned action as prayed for. /
BY THECOURT:
VtNVA"IASNN.:J~J
NANCY A. BAKER,
Plaintiff
ELWOOD F. BAKER,
Defendant
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COLrNTY, PENNSYLVANIA
· CIVIL ACTION - LAW
: NO. 00-7903 CIVIL TERM
PRAECIPE TO DISCONTINUE ACTION
To the Prothonotary:
I am respectfully requesting that the Prothonotary mark the above captioned matter
settled, discontinued, and ended w/th Prejudice·
,2003
Attorney I.D. No. 71786
50 East High Street
Carlisle, PA 17013
Attorney for Plaintiff'
cc: Nicole M. Staley O'Gorman, Esquire