HomeMy WebLinkAbout01-1023 FX
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MARYE. TAYLOR,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY, PENNSYL VANIA
v.
No.Dl-ID;)~ ClV; \
JOHN S. HEIGES,
Defendant
Civil Action - Law
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 far 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 LA WYERAT 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, P A 17013
(800) 990-9108
NOTICIA
USTED HA smo DEMANDADO/A EN CORTE. Si usted desea defenderse de las
demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los
proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando
personalmente 0 por medio de un abogado una comparecencia escrita y radicando en la Corte par
escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se Ie
advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder
sin usted y un fallo por cualquier suma de dinero reclamada en la demanda 0 cualquier otra
reclamacion 0 remedio solicitado por el demandante puede ser dictado en contra suya por la Corte
sin mas aviso adicional. U sted puede perder dinero 0 propiedad u otros derechos importantes para
usted.
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USTED DEBE LLEV AR ESTE DOCUMENTO A SU ABOGADO
INMEDIATAMENTE. SI US TED NO TIENE UN ABOGADO 0 NO PUEDE PAGARLE A
UNO, LLAME 0 VA Y A A LA SIGUIENTE OFICINA PARA A VERIGUAR DONDE PUEDE
ENCONTRAR ASISTENCIA LEGAL.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, P A 17013
(800) 990-9108
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MARYE. TAYLOR,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY, PENNSYLVANIA
No. OJ. /623 d.;;J /~
v.
JOHN S. HEIGES,
Defendant
Civil Action - Law
COMPLAINT
AND NOW, comes Plaintiff Mary E. Taylor, by and through her counsel, Shumaker
Williams, P.C., and respectfully files this Complaint. In support thereof, she avers as follows:
1. Plaintiff Mary E. Taylor is an adult individual who resides at 7 Enck Circle, Enola,
Cumberland County, Pennsylvania.
2. Defendant John S. Heiges is an adult individual who resides at 6026 Hummingbird
Drive, Mechanicsburg, Cumberland County, Pennsylvania.
3. Plaintiff and Defendant entered into a written contract entitled "Marital Agreement,"
which is dated November 6,1990 and attached hereto as Exhibit "A."
4. Paragraph 14 of the Marital Agreement provides:
14. PENSION PLAN
Husband is employed by KEEN TRANSPORT, INC. and presently has a
pension and Husband agrees to a QDRO for $17,500.
5. Paragraph 19 of the Marital Agreement provides:
19. WAIVER OR MODIFICATION TO BE IN WRITING
No modification or waiver of any ofthe terms hereof shall be valid unless in
writing and signed by both Parties and no waiver of any breach hereof or default
hereunder shall be deemed a waiver of the subsequent default of the same or similar
nature.
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6. Paragraph 20 of the Marital Agreement provides:
20. MUTUAL COOPERATION
[sic] Each party shall, at any time and from time to time hereafter, take any and all
steps and execute, acknowledge and deliver to the other Party, any and all further
instruments and/or documents that the other Party may reasonably require for the
purpose of giving full force and effect to the provisions of this Agreement.
7. Paragraph 14 of the Marital Agreement was neither modified nor waived by either
Plaintiff or Defendant.
8. Pursuant to paragraphs 14 and 20 of the Marital Agreement, Defendant agreed in
1990 that $17,500 of his principal in the Keen Transport, Inc. Pension Plan (hereinafter "Pension
Plan") would be segregated for Plaintiff.
9. Defendant was an employee of Keen Transport, Inc. (hereinafter "Keen Transport")
in 1990 until his retirement.
10. Based upon information and belief, Plaintiff states that Defendant retired from Keen
Transport in February, 2000.
11. Based upon information and belief, Plaintiff avers that the books of Keen Transport
show that $17,500 of Defendant's Pension Plan principal was transferred to Plaintiff in 1990.
12. Plaintiffs $17,500 invested by Keen Transport in Defendant's Pension Plan grew
from 1990 until his retirement.
13. Pursuant to the Marital Agreement, when Defendant retired, Plaintiff was entitled to
$17,500 plus the investment growth that such an amount earned in Defendant's Pension Plan from
1990 until the date of distribution.
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14. To date, Defendant has failed to pay Plaintiff$17,500 plus the investment growth that
such an amount earned in Defendant's Pension Plan from 1990 until the date of distribution.
15. Accordingly, Defendant has breached the Marital Agreement by failing to pay
$17,500 plus the investment growth that such an amount earned in Defendant's Pension Plan from
1990 until February, 2000.
16. By letters dated November 10, 2000, November 16,2000, December I, 2000, and
January 2, 200 I, Plaintiff gave Defendant written notice that she deemed Defendant to have violated
the Marital Agreement.
17. On or about November 24, 2000, Defendant sent Plaintiff a check in the amount of
$17,500with the notation "divorce settlement" and an accompanying letter stating that $17,500 is
the amount he owed in the divorce settlement.
18. By letter dated February 12,2001, Plaintiff returned Defendant's check in the amount
of $17,500.
19. Plaintiff does not accept Defendant's check in the amount of$17,500 as satisfaction
of her claims under the Marital Agreement.
COUNT I
Breach of Contract
20. Paragraphs I through 19 above are incorporated herein by reference.
21. Defendant breached the Marital Agreement by failing to pay Plaintiff $17,500 plus
the investment growth that such an amount earned in Defendant's Pension Plan from 1990 until the
date of distribution.
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22. Plaintiff is unaware of the amount by which $17,500 Pension Plan principal grew
because neither Keen Transport nor Defendant provided Plaintiff with an accounting of said funds.
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23. In addition, Defendant breached the Marital Agreement by failing to effectuate the
intent of the Marital Agreement, which was that $17,500 would be segregated in Defendant's
Pension Plan for Plaintiff and said amount along with its investment growth would be transferred
to Plaintiff upon Defendant's retirement.
24. By letters dated November 10,2000, November 16, 2000, December I, 2000, and
January 2, 200 I, Plaintiff gave Defendant written notice that she deemed Defendant to have violated
the Marital Agreement between the parties.
25. Defendant's breaches of the Marital Agreement have caused and continue to cause
damages to Plaintiff.
26. Plaintiffs damages include, but are not limited to, $17,500 plus the investment
growth of that amount in Defendant's Pension Plan from 1990 until the date of distribution.
WHEREFORE, Plaintiff Mary E. Taylor respectfully requests that this Honorable Court
award damages against Defendant John S. Heiges in an amount in excess of $25,000, plus interest
and costs and such other relief as the Court may deem necessary and/or appropriate.
COUNT II
Uniust Enrichment
27. Paragraphs I through 26 above are incorporated herein by reference.
28. Plaintiff conferred a benefit upon Defendant because rather than Defendant paying
Plaintiff $17,500 when they executed the Marital Agreement, both Plaintiff and Defendant agreed
that $17,500 of Defendant's Pension Plan principal would be segregated for Plaintiff.
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29. Defendant appreciated such b~nefit because he received a larger pension from Keen
Transport.
30. Plaintiffs $17,500 invested in Defendant's Pension Plan from 1990 until date of
distribution earned money that the Defendant collected when he retired from Keen Transport.
31. Had Plaintiff's $17,500 not remained in Defendant's Pension Plan from 1990 until
date of distribution, Defendant's pension would have been less than what he received when he retired
in February, 2000.
32. Defendant is willing to pay Plaintiff$17,500, but not the investment growth that this
amount earned in his Pension Plan from 1990 until date of distribution.
33. Defendant retains the investment growth that the $17,500 made in his Pension Plan
from 1990 until date of distribution.
34. Defendant's retention of such a benefit is inequitable.
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35. As a result, Defendant has been unjustly enriched by the benefit conferred to him by
Plaintiff.
WHEREFORE, Plaintiff Mary E. Taylor respectfully requests that this Honorable Court
award damages against Defendant John S. Heiges in an amount in excess of $25,000, plus interest
and costs and such other relief as the Court may deem necessary and/or appropriate.
SHUMAKER WILLIAMS, P.C.
Dated: J. \J- ,\&\
By ~ O.5~~
Laurence W. Dague, I.D. #19715
Melissa A. Swauger, I.D. #82382
P.O. Box 88
Harrisburg, PA 17108
(717) 763-1121
Attorneys for Plaintiff
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AGREEMENT
AGREEMENT made this
/..d,day of /1/',,,,",,,,,v&', 1990,
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by and between MARY E. ElEIGES. ("WIFE") of 179 Siounons Road,
Mechanicsburgl Cumberland County, Pennsylvania) and JOHN S~
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HEIGES. ("HUSBAND/I) of 179 Simmons Road. Mechanicsburg,
Cumberland County, Pennsylvania.
WITNESSETH.
WHEREAS. the Parties hereto are HUSBAND and WIFE, having
been married on April 12, 1959 at First United Methodist Church,
Mechanicsburg. Cumberland County. Pennsylvania. There ~ere
two children of this marriage.
WHEREAS, diverse unhappy differences, disputes and difficulties
have arisen between the Parties and it is the intention of
HUSBAND and WIFE to live separate and apart for the rest of
their natural lives, and the Parties hereto are desiroua of
setting fully and finally their respective financial and property
rights and obligations as between each other including, without
limitation by specification'
the settling of all matters
between them relating to the ownership and equitable distribution
of real and personal property; the settling of all matters
between them relating to the past, present and future support)
allmony and/or maintenance of WIFE by HUSBAND or of HUSBAND
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by WlFE; and in general, the settling of any and all claims
and possible claims by one against the other or against their
respective estates.
HOW, THEREFORE, in consi~eration of the premises and
of the mutual promises, covenants and undertakings hereinafter
set forth and for other good and valuable consideration, receipt
of which is hereby acknowledged by each of the Parties
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hereto, WIFE and HUSBAND, each intending to be legally bound
hereby, covenant and agree as follows,
1. AGREEMENT NOT A BAR TO DIVORCE PROCEEDINGS
This Agreement shall not be considered an affect or bar
the right of HUSBAND and WIFE to an absolute divorce
on lawful grounds if such grounds now exist or shall hereafter
exist or to such defense as may be available to either Party.
This Agreement is not intended to condone and shall not be
deemed to be a condonation on the part of either Party hereto
of any act or acts on the part of the other Party which have
occasioned the disputes or unhappy differences which have
occurred prior to or which may occur subsequent to the date
hereof. The Parties intend to secure s mutual consent,
No-Fault Divorce pursuant to the terms of Section 201{c)
of the Divorce Code of 1980 amended.
2. EFFECT OF DIVORCE DECREE
The Parties agree that unless otherwise specifically
provided herein, this Agreement shall continue in full force
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and 'effec't after such time as a final Decree in Divorce may
be entered with respect to the Partie8~
). AGREEMENT TO BE INCORPORATED IN DIVORCE DECREE
The Parties agree that the terms of this Agreement shall
be incorporated but not merged into any Divorce Decree which
may be entered with respect to them. The Parties further
agree that the Court of Common Pleas which may enter such
divorce decree shall retain continuing jurisdiction over the
~arties and the subject matter of the Agreement for the purpose
of enforcement of any of the provisions thereof.
4. DATE OF EXECUTION
The "date of execution" or "execution date" of this Agreement
shall be defined as the date of execution by the Party last
executing this Agreement.
5. DISTRIBUTION DATE
The transfer of property, funds and/or documents provided
for herein shall only take place on the "distribution date"
which shall be defined as the date of execution of this Agreement
unless otherwise specified herein.
6. ADVICE OF COUNSEL
WIFE and HUSBAND declare that they have each had a full
and fair opportunity to obtain independent legal advice of
counsel of their selection; that WIFE has been independently
represented by counsel and that HUSBAND, cognizant of his
right to legal representation, declares that it is his express,
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voluntary and knowing intention not to avail himself of his
right to counse 1 and chooses ins.tead to represent himself
with respect to the pre~a~ation and execution of this Agreement.
HUSBAND further declares that he is executing this Agreement
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freely and voluntarily, having obtained such knowledge and
disclosure of WIFE'S assets.
7. PERSONAL RIGHTS
HUSBAND and WIFE may and shall, at all times hereafter,
live separate and apart. They shall be free from any control,
restraint, interference or authority, direct or indirect,
by the other in all respect as fully as if they Were unmarried.
They may reside at such place or places as they may select.
Each may, for his or her separate use of benefit, conduct,
carryon or engage in any business, occupation, profession
or employment which to him or her may seem advisable. HUSBAND
and WIFE shall not molest, harass, disturb or malign each
other or the respective families of each other nor compel
or attempt to compel the other to cohsbit or dwell by any
means or in any manner whatsoever with him or her.
.8. MUTUAL RELEASES
HUSBAND and WIFE each do hereby mutually remise, release,
quit-claim and forever discharge the other and the estate
of such other, for all time to come, and for all purposes
whatsoever, of and from any and all rights, title and interests,
of claims in or against the property (including income and
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gain from property hereafter accruing) of the other or againat
the estate of such other. of whatever nature and wheresoever
situate. which he or she now has or at any time hereafter
may have against such other, the estate of such other or any
part thereof. whether arising out of any former acts. contracts,
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engagements or liabilities of such other or by way of dower
or curtesy. or claims in the nature of dower or curtesy or
widow's or widower's rights, family exemption or similar allowance,
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or under the intestate laws, or the right to take against
the spouse's will. or the right to treat a lifetime conveyance
by the other as testamentary, or all other rights of a surviving
spouse to participate in.a deceased spouse's estate, whether
arising under the laws of (a) the Commonwealth of Pennsylvania,
(b) State, Commonwealth or territory of the United States,
or (c) any other country, or any rights which either Party
may have or at any time hereafter have for past, present or
future support or maintenance, alimony, pendente lite, counael
fees, equitable distribution, costs or expenses, whether arising
as a result of the marital relation or otherwise, except,
and only except, all rights and agreements and obligations
of whatsoever nature arising or which may arise under this
Agreement or for the breach of any provision thereof. It
is the intention of HUSBAND and WIFE to give to each other
by the execution of this Agreement a full, complete and general
release with respect to any and all property of any kind or
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natur&. real, personal or mixed,
or may hereafter acquire, except and only except all rights
and agr~ements and obligations or whatsoever nature arising
or which may arise under this Agreement or for the breach
of any provision thereof.
9. PERSONAL PROPERTY
HUSBAND and WIFE hereby acknowledge that all the tangible
personal property situate in the marital home at 179 Simmons
Road, Mechanicsburg, Cumberland County, Pennsylvania, which
includes, but is not limited to, jewelry, Clothes, furniture,
rugs, carpets, household.equipment and appliances, tools,
pictures, books, works of art, and other personal property,
shall be the sole and exclusive property of the WIFE, vith
the exception of the following items of personal property
which shall be the sole and exclusive property of the HUSBAND,
as follow",
(a) Fish ing Equipment
(b) Tools
(c) Persona 1 Clothing
(d) . Any other items vife agrees are the HUSBAND'S
The Parties do hereby specifically waive, release, renounce
and forever abandon whatever claim, if any, he or she may
have with respect to the above items which shall become the
sole and separate property of the other, as set forth above.
10. HOTOR VEHICLES
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With respect to the motor vebicle, HUSBAND and WIVE agree
as follows,
<a> Any vehicles owned by HUSBAND snd WIFE in their
own name presently shall become the sole and exclusive property
of their respective property of their owners free and clear
of all liens and encumbrances.
11. AFTER ACQUIRED PERSONAL PROPERTY
Each of the Parties shall hereafter own and enjoy, independently
of sny claims or right of the other, sll items of .personal
property. tangible or intangible, hereafter acquired by him
or her, with full power in him or ber to dispose of same as
fully and effectively, in. all respects and for all purposes,
as though he or she were unmarried.
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The real property and improvements thereon, evidenced by Deed_ ~~
marked Exhibit "A" and Deed marked Exhibit "a" which are known rJ-Yi
12.
SALE OF REAL ES1ATE - DIVISION OF PROCEEDS
and numbered as 179 Simmons Road, Mechanicsburg, Cumberland County,
Pennsylvania shall be disposed of as follows:
1. Property (house and lot to be sold and proceeds divided)
(a) Property to be listed for sale April 1. 1991
(b) If house and lot not sold by August 1, 1991, Wife to
pay Husband $500. a month rent
(c) Wife to pay all expenses on house including taxes
electric
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13. REAL ESTATE TAXES
Not applicable.
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Husband is employed by KEEN TRANSPORT INC. ana prssently hae a
pension and Husband agrees to a QDRO for $17,500.
LEGAL FEES ~~~ ~~
Wife agrees to pay all costs and ~; of this
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16. WIFE'S DBBTS
WIFE represents and warrants to HUSBAND that since the
Parties marital separation, she has not contracted or incurred
any debt or liability for which HUSBAND or his estate might
be responsible and WIFE further represents and warrants to
HUSBAND that she will not contract or incur any debt or liability
after the execution of this Agreement, for which HUSBAND or
hia estate might be responsible. WIFE shall indemnify and
save harmless HUSBAND from any and all claims or demands made
against him by reason of debts or obligations incurred by
her.
17. HUSBAND'S DEBTS
HUSBAND repreaents and warrants to WIFE that since the
Parties marital separation, he has not contracted or incurred
any debt or liability for which WIFE or her estate might be
responsible and HUSBAND further represents and warrants to
WIFE that he will not contract or incur any debt or liability
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esta'te might be responsible ..HUS~AND shall lnd.;....ify and
save harmless WIFE from any and all claims or demands made
against her by reaSon of debts or obligations incurred by
him.
18. FINAL EQUITABLE DIVISION OF PROPERTY
The Parties agree that the division of all property set
forth in Agreement is equitable and in the event an action
in Divorce is commenced) both Parties relinquish the right
to divide said property in any manner not consistent with
the terms set forth herein. It is furtber tbe intent, understanding
and agreement of tbe Parties tbat this Agreement is a full,
final, complete and equitable property division.
19. WAIVER OR MODIFICATION TO BE IN WRITING
No modification or waiver of sny of tbe terms hereof
shall be valid unless in writing and signed by both Parties
and no waiver of any breach hereof Or default hereunder shall
be deemed a waiver of any subsequent default of the same or
similar nature.
20. MUTUAL COOPEIlATION
Each Party shall, at any time and from time to time hereafter,
take any and all steps and execute, acknowledge and deliver
to the other Party, any and all further instruments and/or
\documents that the other Party may reasonably require for
the purpose of giving full force and effect to the provisions
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. 21. . LAW 011 PENNSYLVANIA APPLICAlILB .
This Agreement shall be construed in accordance with
the laws of the Comrronwealth of Pennsylvania.
22. AGREEMENT BINDING ON IIEIRS
This Agreement shall be binding and shall inure to the
benefit of the Parties hereto and their respective heirs,
executors, administrators. successors, and assigns.
23. INTEGRATION
This Agreement constitutes the entire understanding of
the Parties and supersedes any and all prior agreements and
negotiations between them. There are no representations Or
warranties other than those expressly Bet forth herein.
24. NON-MERGER
It is the Parties intent that this Agreement does not
merge with the Divorce Decree, but rather, it continues to
have independent contractual significance and each Party maintains
their contractual remedies.
25. OTIIER DOCUlfENTATION
WIFE and HUSBAND covenant and agree that they will forthwith
(and within at least twenty (20) days after demand therefore>,
execute any and all written instruments, assignments, releases,
satisfactions, deeds, notes, stock certificates, or such other
writings as may be necessary or desirable for the proper effectuation
of this Agreement, and as their respective counsel shall mutually
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effectively the terms of this Agreement.
26. NO WAIVER OF DEFAULT
This Agreement shall remain in full force and effect
unless and until terminated under and pursuant at the terms
of this Agreement. The failure of either Party to insist
upon strict performance of any of the provisions of this Agreement
shall in no way affect the right of such Party hereafter to
enfore the same, nor shall the waiver of any breach of any
subsequent default of the same or similar nature) nor shall
it be construed a8 a waiver of strict performance of any other
obligations herein.
27. SEVERABILITY
If any term, condition, clause or provision of this Agreement
shall be determined or declared to be void or invalid in law
or otherwise. then only that term. condition. clause or provision
shall be stricken from this Agreement and in all other respects
this Agreement shall be valid and continue in full force,
effect and operation. Likewise, the failure of any Party
to meet her or his obligations under anyone or more of the
Paragraphs herein, with the exception of the satisfactions
of the conditions precedent, shall in no way avoid or alter
the remaining obligations of the Parties.
2B. HEADINGS NOT PART OF AGREEMENT
Any heading preceding the text of the several paragraphs
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nor shall they affect its meaninSt construction or effect.
29. HUSBAND'S INHERITANCE
WIFE agrees that HUSBAND has heretofore inherited the
sum of Fifteen thousand ($15,000) Dollars from his family
which is currently in a Certificate of Deposit at Farmer's
Trust Company and WIFE agrees to release all of her right.
title and interest in and to this Certificate of Deposit upon
!~~n~ng this Agreement.
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IN WITNESS WHEREOF, the Parties hereto have set their
hands and seals the day and year first above written.
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VERIFICATION
The undersigned, Mary E. Taylor, hereby verifies and states that:
1. She is the Plaintiff in the within action;
2. The facts set forth in the foregoing Complaint are true and correct to the best of
her knowledge, information, and belief; and
3. She is aware that any false statements herein are made subject to the penalties of
18 Pa.C.S.A. S4904, relating to unsworn falsification to authorities.
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MARY E. TAYLOR
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYL VANIA
ID';)..'!,
: NO.2001-1192J CIVIL TERM
Plaintiff
v.
JOHN S. HEIGES
CIVIL ACTION - LAW
Defendant
NOTICE TO DEFEND AND CLAIM RIGHTS
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth
in the following pages, you must take 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 TillS 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 Lawyers Referral Service
2 Liberty Ave.
Carlisle, P A 17013
(717) 249-3166
TO: MARY E. TAYLOR
C/O MELISSA A. SWAUGER
You ARE HEREBY NOTIFIED To FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW
MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAyBE ENTERED
AGAINST You.
@hG?__.
PETER J. Russo
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PETERJ. RUSSO, ESQUIRE
P A Supreme Court ill: 72897
5010 East Toodle Road, Suite 200
Mechanicsburg, P A 17050
(717) 591-1755
Attorney for Defendant
MARYE. TAYLOR
: IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plain tiff
NO. 2001-11023
CIVIL TERM
v.
JOHN S. HEIGES
CIVIL ACTION - LAW
Defendant
DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT
and
NEW MATTER
AND NOW, COMES, the Defendant, John S. Heiges, by and through his counsel, Peter
J. Russo, Esquire, and aver the following:
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted in part and denied in part. It is admitted there is a paragraph 14 in the Marital
Agreement. The aforementioned agreement is a document which speaks for itself and any
interpretational gloss applied thereon by the Plaintiff is strictly denied.
5. Admitted in part and denied in part. It is admitted there is a paragraph 19 in the Marital
Agreement. The aforementioned agreement is a document which speaks for itself and any
interpretational gloss applied thereon by the Plaintiff is strictly denied.
6. Admitted in part and denied in part. It is admitted there is a paragraph 20 in the Marital
Agreement. The aforementioned agreement is a document which speaks for itself and any
interpretational gloss applied thereon by the Plaintiff is strictly denied.
7. Admitted.
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8. Denied. The Marital Agreement is a document which speak for itself. The document
encompassed the totality of the parties' agreements. Any additional interpretational gloss
applied thereon by the Plaintiff is strictly denied. By way of further response, there has never
been any discussion, provision or other binding obligation on the Defendant to segregate the
subject funds.
9. Admitted.
10. Admitted.
11. Denied. As Plaintiff failed to provide Keen Transport with a QDRO, Keen Transport
never segregated any funds in favor of the Plaintiff nor did Keen Transport "transfer" any funds
into the Plaintiffs name.
12. Denied. At no time did Plaintiff have any funds in the Keen Transport Pension Plan.
13. Denied. The Marital Agreement is a document which speak for itself. The document
encompassed the totality of the parties' agreements. Nothing in the agreement imposed, implies
or even suggests that any interest or investment growth was due to Plaintiff. Further, nothing in
the agreement imposed, implies or even suggests when the date of distribution would be.
Therefore, any additional interpretational gloss applied thereon by the Plaintiff is strictly denied.
14. Denied. Defendant remitted the required $17,500.00 to Plaintiff upon his retirement.
Without a QDRO, Defendant had no ability, prior to his retirement, to remit funds from his
retirement account to Plaintiff. As the Marital Agreement is a document which speak for itself,
the document encompassed the totality of the parties' agreements and nothing in the agreement
imposed, implies or even suggests that any interest or investment growth was due to Plaintiff.
Therefore, any additional interpretational gloss applied thereon by the Plaintiff is strictly denied.
15. Denied. The averments contained in paragraph 15 are conclusion oflaw to which no
response is required. In the event any portion of paragraph 15, is deemed to be factual, it is
specifically denied that Defendant breached his obligation under the agreement as Defendant
remitted the required $17,500.00 to Plaintiff upon his retirement. As the Marital Agreement is a
document which speak for itself, the document encompassed the totality of the parties'
agreements and nothing in the agreement imposed, implies or even suggests that any interest or
investment growth was due to Plaintiff. Therefore, any additional interpretational gloss applied
thereon by the Plaintiff is strictly denied.
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16. Admitted in part and denied in part. It is admitted that Plaintiff sent Defendant letters.
The dates of said letter and the contents therein are a part of a document which speaks for itself
and any interpretational gloss applied thereon by the Plaintiff is strictly denied.
17. Admitted.
18. Admitted.
19. Denied. The averments contained in paragraph 19 are conclusion of law to which no
response is required. In the event any portion of paragraph 19, is deemed to be factual, it is
specifically denied that Defendant breached his obligation under the agreement as Defendant
remitted the required $17,500.00 in total satisfaction of his contractual obligations to Plaintiff
upon his retirement. As the Marital Agreement is a document which speak for itself, the
document encompassed the totality of the parties' agreements and nothing in the agreement
imposed, implies or even suggests that any interest or investment growth was due to Plaintiff.
Therefore, any additional interpretational gloss applied thereon by the Plaintiff is strictly denied.
COUNT I - BREACH OF CONTRACT
20. Denied. The Rules of Civil Procedure do not require a response to the averments
contained in paragraph 20.
21. Denied. The averments contained in paragraph 21 are conclusion of law to which no
response is required. In the event any portion of paragraph 21, is deemed to be factual, it is
specifically denied that Defendant breached his obligation under the agreement as Defendant
remitted the required $17,500.00 in total satisfaction of his contractual obligations to Plaintiff
upon his retirement. As the Marital Agreement is a document which speak for itself, the
document encompassed the totality of the parties' agreements and nothing in the agreement
imposed, implies or even suggests that any interest or investment growth was due to Plaintiff.
Therefore, any additional interpretational gloss applied thereon by the Plaintiff is strictly denied.
22. Denied. Plaintiff is "unaware of the amount by which $17,500.00 Pension Plan principal
grew" because there never was a "$17,500.00 Pension Plan" as Plaintiff and her counsel failed to
provide a QDRO to Keen Transport. By way of further response, Plaintiff is not entitled to an
accounting as she never maintained an account with Keen's Pension Plan.
23. Denied. The averments contained in paragraph 23 are conclusion of law to which no
response is required. In the event any portion of paragraph 23, is deemed to be factual, it is
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specifically denied that Defendant breached his obligation under the agreement as Defendant
remitted the required $17,500.00 in total satisfaction of his contractual obligations to Plaintiff
upon his retirement. As the Marital Agreement is a document which speak for itself, the
document encompassed the totality ofthe parties' agreements and nothing in the agreement
imposed, implies or even suggests that any interest or investment growth was due to Plaintiff or
that any amount was to be segregated by any method other than QDRO. The intent ofthe
agreement is construed by the terms of the agreement and the reading of additional terms into the
agreement is denied. Therefore, any additional interpretational gloss applied thereon by the
Plaintiff is strictly denied.
24. Denied. The averments contained in paragraph 24 are conclusion of law to which no
response is required. In the event any portion of paragraph 24, is deemed to be factual, it is
specifically denied that Defendant breached his obligation under the agreement as Defendant
remitted the required $17,500.00 in total satisfaction of his contractual obligations to Plaintiff
upon his retirement. As the Marital Agreement is a document which speak for itself, the
document encompassed the totality ofthe parties' agreements and nothing in the agreement
imposed, implies or even suggests that any interest or investment growth was due to Plaintiff.
Therefore, any additional interpretational gloss applied thereon by the Plaintiff is strictly denied.
25. Denied. The averments contained in paragraph 25 are conclusion of law to which no
response is required. In the event any portion of paragraph 25, is deemed to be factual, it is
specifically denied that Defendant breached his obligation under the agreement as Defendant
remitted the required $17,500.00 in total satisfaction of his contractual obligations to Plaintiff
upon his retirement.
26. Denied. The averments contained in paragraph 26 are conclusion oflaw to which no
response is required. In the event any portion of paragraph 26, is deemed to be factual, it is
specifically denied that Defendant breached his obligation under the agreement as Defendant
remitted the required $17,500.00 in total satisfaction of his contractual obligations to Plaintiff
upon his retirement. As the Marital Agreement is a document which speak for itself, the
document encompassed the totality of the parties' agreements and nothing in the agreement
imposed, implies or even suggests that any interest or investment growth was due to Plaintiff.
Therefore, any additional interpretational gloss applied thereon by the Plaintiff is strictly denied.
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WHEREFORE, Defendants respectfully request this Honorable Court to enter judgment
in favor of the Defendant and against Plaintiff in the amount of all expenses and costs incurred
by Defendant in defense of this matter.
COUNT II - UNJUST ENRICHMENT
27. Denied. The Rules of Civil Procedure do not require a response to the averments
contained in paragraph 27.
28. Denied. The averments contained in paragraph 28 are conclusion oflaw to which no
response is required. In the event any portion of paragraph 28, is deemed to be factual, it is
specifically denied that Defendant breached his obligation under the agreement as Defendant
remitted the required $17,500.00 in total satisfaction of his contractual obligations to Plaintiff
upon his retirement. As the Marital Agreement is a document which speak for itself, the
document encompassed the totality of the parties' agreements and nothing in the agreement
imposed, implies or even suggests that any interest or investment growth was due to Plaintiff or
that any sums were to be segregated in any manner. Therefore, any additional interpretational
gloss applied thereon by the Plaintiff is strictly denied.
29. Denied. The averments contained in paragraph 29 are conclusion of law to which no
response is required. In the event any portion of paragraph 29, is deemed to be factual, it is
specifically denied that Defendant breached his obligation under the agreement as Defendant
remitted the required $17,500.00 in total satisfaction of his contractual obligations to Plaintiff
upon his retirement. As the Marital Agreement is a.document which speak for itself, the
document encompassed the totality ofthe parties' agreements and nothing in the agreement
imposed, implies or even suggests that any interest or investment growth was due to Plaintiff or
that any sums were to be segregated in any manner. Therefore, any additional interpretational
gloss applied thereon by the Plaintiff is strictly denied.
30. Denied. Plaintiff did not invest anything in Defendant's Pension Plan as a direct result of
Plaintiff and her counsel's failure to provide a QDRO to Keen Transport.
31. Denied. The parties made a bargained for exchange as a part of a Marital Agreement.
The agreement called for the payment of a flat amount of $17,500.00. There were no provisions
made for increases in value or decreases in value. Further, there were no provisions in the
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agreement about the segregation of funds nor the anticipated time of delivery. Therefore, any
increase in value or decrease in value is waived by the terms of the agreement.
32. Denied. The parties made a bargained for exchange as a part of a Marital Agreement!
The agreement called for the payment of a flat amount of $17,500.00. There were no provisions
made for increases in value or decreases in value. Further, there were no provisions in the
agreement about the segregation of funds nor the anticipated time of delivery. Therefore, any
increase in value or decrease in value is waived by the terms ofthe agreement.
33. Denied. The parties made a bargained for exchange as a part of a Marital Agreement!
The agreement called for the payment of a flat amount of $17,500.00. There were no provisions
made for increases in value or decreases in value. Further, there were no provisions in the
agreement about the segregation of funds nor the anticipated time of delivery. Therefore, any
increase in value or decrease in value is waived by the terms ofthe agreement.
34. Denied. The parties made a bargained for exchange as a part of a Marital Agreement!
The agreement called for the payment of a flat amount of $17,500.00. There were no provisions
made for increases in value or decreases in value. Further, there were no provisions in the
agreement about the segregation of funds nor the anticipated time of delivery. Therefore, any
increase in value or decrease in value is waived by the terms of the agreement.
35. Denied. The parties made a bargained for exchange as a part of a Marital Agreement!
The agreement called for the payment of a flat amount of $17,500.00. There were no provisions
made for increases in value or decreases in value. Further, there were no provisions in the
agreement about the segregation of funds nor the anticipated time of delivery. Therefore, any
increase in value or decrease in value is waived by the terms of the agreement.
WHEREFORE, Defendant respectfully requests this Honorable Court to enter judgment
in favor of the Defendant and against Plaintiff in the amount of all expenses and costs incurred
by Defendant in defense ofthis matter.
NEW MATTER
36. Plaintiff has failed to set a claim upon which release may be granted.
37. Plaintiff has failed to join an indispensable party.
38. Plaintiff has failed to mitigate her damages, if any.
39. Plaintiff may be barred in whole or in part by the applicable Statute of Limitations.
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40. Plaintiff may be barred in whole or in part by the principle of res judicata.
41. Plaintiffs claim maybe barred by the estoppel, waiver and latches.
42. Plaintiffs claim may be barred by the Principles of Accord and Satisfaction.
43. Plaintiffs claim may be barred by the doctrine of payment.
44. Plaintiff voluntarily assumed the risk of the facts set forth in this Complaint and
accordingly her claim is barred.
45. Plaintiff s claim may be barred and limited by the doctrines of comparative negligence
and/or assumption of the risk.
46. No conduct of the defendant or agent of the answering defendant resulted in or is the
proximate cause of any injury or damage sustained by the plaintiff.
47. Any injuries and/or damages claimed by the plaintiff, if proven, were caused by persons
other than answering defendant and not within the control of answering defendant.
48. At all material times hereto answering defendant acted reasonably, appropriately and
caused no injuries or damage to plaintiff.
49. Any harm suffered by the Plaintiff arose out of her own non-performance of the essential
obligations.
Respectfully submitted,
G~Q~
Peter J. Russo
5010 E. Trindle Road
Suite 200
Mechanicsburg, P A 17050
(717) 591-1755
Dated: '3) ~ \ I 0 \
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MARY E. TAYLOR
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYL VANIA
Plaintiff
: NO. 2001-11023
CIVIL TERM
v.
JOHN S. HEIGES
MARY E. TAYLOR
: CIVIL ACTION - LAW
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
: NO. 2001-11023
CIVIL TERM
v.
JOHN S. HEIGES
: CIVIL ACTION - LAW
Defendant
VERIFICATION
I, John S. Heiges, verify that the statements made in the foregoing document are true and
correct. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S.
94904 relating to unsworn falsification to authorities.
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MARY E. TAYLOR
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
: NO. 2001-11023
CIVIL TERM
v.
JOHN S. HEIGES
CIVIL ACTION - LAW
Defendant
CERTIFICATE OF SERVICE
I, Peter 1. Russo, hereby certify that I am on this day serving a copy of the
foregoing document upon the person(s) and in the matter indicated below:
Service by First-Class Mail, Postage Prepaid, and addressed as follows:
Melissa A. Swauger, Esquire
P.O. Box 88
Harrisburg, PA 17108
Date: -3J a \ \ 0\
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Peter J. Russo, Esquire
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Civil Casel Inquiry
Page
1
2001-01023 TAYLOR MARY E (vs) HEIGES JOHN S
Reference No. . :
CaSe Type.....: COMPLAINT
J~dgmen~...... .00
J~ge Assigned: HESS KEVIN A
D~sposed Desc. :
------------ Case Comments -------------
Filed........:
Time......... :
Execution Date
Jury Trial. . . .
Dtsposed Date.
Hlgher Crt 1.:
Higher Crt 2.:
2/21/2001
11:38
0/00/0000
0/00/0000
********************************************************************************
General Index Attorney Info
TAYLOR MARY E
7 ENCK CIRCLE
ENOLA PA 17025
HEIGES JOHN S
6026 HUMMINGBIRD DRIVE
MECHANICSBURG PA 17055
PLAINbFF
SWAUGER MELISSA A
DAGUE LAURENCE W
DEFENDANT
********************************************************************************
* Date Entries *
********************************************************************************
2/21/2001
3/01/2001
3/22/2001
4/09/2001
5/03/2001
5/04/2001
5/04/2001
5/09/2001
5/14/2001
5/14/2001
6/11/2001
7/11/2001
FIRST ENTRY
COMPLAINT - CIVIL ACTION
ACCEPTANcE-(JlF-$ERVICE-=-FOR-COMPLAINT-IN-DIVORCE-DEFT-=-BY-PETER-,J-
RUSSO ESQ FOR DEFT
!
DEFENDANT~sJANSWER-TO-PLAINTIFF~S-COMPLAINT-AND-NEW-MATTER-=-BY----
PETER J RUS"10
, ,
PLAINTIFF~S!REPLY-TO-ANSWER-AND-NEW-MATTER-OF-DEFENDANT-=-BY-------
LAURENCE W DAGWE FOR PLFF I
___________J_______________________________________________________
PLAINTIFF'S MOTION TO COMP~L - LAWRENCE W DAGUE - ATTY FOR PLFF
PRAECIPE FOR LISTING CASE fOR ARGUMENT BY PETER J RUSSO ATTY FOR
PLFF - SUMMl\.RY.JUDGMENT
-------------------------------------------------------------------
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BY PETER J RUSSO ATTY FOR
DEFT
~g~~~~D~~~D;~~8~9~~6~I~-~~-gkA~NiI~~~~0~~IRN~~~~C~M~E~~~~~~IEF--
MAILED 5/9/01
--------------7-----------~----------------------------------------
DEFENDANT'S 'OBJECTION TO PLAINTIFF'S NOTICE OF INTENT TO SERVE
SUBPOENA BY 'PETER J RUSSO ESQ
-------------------------------------------------------------------
DEFENDANT'S ANSWER TO PLAINTIFF'S MOTION TO COMPEL BY PETER J RUSSO
ESQ .
-------------------------------------------------------------------
ORDER OF COURT - DATED 6/7/01 - THE COURT BEING SATISFIED THAT THE
PROPOUNDED ~NT~RROGATORIESLARE OVERBOARD AND THE OBJECTION THERETO
IS OTHERWISE WELL TAKEN TH~ MOTION TO COMPEL IS DENIED THIS ORDER
IS DENIED - 'TH~S ORDER IS ENTERED WITHOUT PREJUDICT TO THE PLFF TO
REPROPOUND MORE SPECIFIC INTERROGATORIES - BY THE COURT KEVIN A
HESS J COPIES MAILED
-------------------------------------------------------------------
CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE
4009.22 - BY MELISSA A SWAUGER ESQ
- - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - -
**************************************r*****************************************
* Escrow Information *
* Fees & Debits Beq Bal . Pvmts/Adl End Bal *
********************************~********~**************************************
COMPLAINT
TAX ON CMPLT
SETTLEMENT
JCP FEE
SUBPOENA
35.00
.50
5.00
5.00
2.00
35.00
.50
5.00
5.00
2.00
.00
.00
.00
.00
.00
-
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Cumberland County Prothonotary's Office
Civil Case Inquiry
.. .
2001-01023 TAYLOR MARY E (vs) HEIGES JOHN S
Ref!erence No. . :
C~se Type.....: COMPLAINT
Jl&gment. . . . . . . 00
J~ge Assigned: HESS KEVIN A
Disposed Desc. :
---~-------- Case Comments -------------
Filed........:
Time......... :
Execution Date
Jury Trial. . . .
Disposed Date.
Higher Crt 1.:
Higher Crt 2.:
47.50
47.50
.00
.
1';-;
Page
2
2/21/2001
11:38
0/00/0000
0/00/0000
********************************************************************************
* End of Case Information *
********************************************************************************
.
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MARYE. TAYLOR,
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY, PENNSYL VANIA
Plaintiff
()J~jD23
: No.
v.
JOHN S. HEIGES,
Defendant
Civil Action - Law
ACCEPTANCE OF SERVICE
I accept service of the Complaint on behalf of Defendant John S. Heiges and certify that I
am authorized to do so.
~
Peter Russo, Esquire
5010 Trindle Road
Mechanicsburg, P A 17055
Dated: ~ I ';;1,4 I 0\
Attorneys for Defendant
: 128026
OR\G\NA.L
,
MARY E. TAYLOR,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY, PENNSYLVANIA
v.
No. 01-1023 Civil
JOHN S. HEIGES,
Defendant
Civil Action - Law
PLAINTIFF'S REPLY TO ANSWER AND NEW MATTER OF DEFENDANT
NOW COMES Plaintiff, Mary E. Taylor (hereinafter "Plaintiff'), by and through her counsel,
Shumaker Williams, P.C., to state the following Reply to Answer and New Matter of Defendant,
John S. Heiges (hereinafter "Defendant"), as follows:
36. The allegations ofthis paragraph constitute conclusions oflaw to which no reply is
required. To the extent that a reply is deemed to be required, Plaintiff denies that she failed to state
a claim upon which relief may be granted.
37. The allegations of this paragraph constitute conclusions of law to which no reply is
required. To the extent that a reply is deemed to be required, the Plaintiff denies that she failed to
join an indispensable party.
38. The allegations ofthis paragraph constitute conclusions oflaw to which no reply is
required. To the extent that a reply is deemed to be required, Plaintiff denies that she failed to
mitigate her damages.
39. The allegations of this paragraph constitute conclusions oflaw to which no reply is
required. To the extent that a reply is deemed to be required, the Plaintiff denies that her claims are
barred in whole or in part by the statute of limitations.
40. The allegations of this paragraph constitute conclusions oflaw to which no reply is
required. To the extent that a reply is deemed to be required, the Plaintiff denies that her claims may
be barred in whole or in part by the principle of res judicata.
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41.
The allegations of this paragraph constitute conclusions oflaw to which no reply is
required. To the extent that a reply is deemed to be required, the Plaintiff denies that her claims may
be barred by estoppel, waiver, and latches.
42. The allegations ofthis paragraph constitute conclusions oflaw to which no reply is
required. To the extent that a reply is deemed to be required, the Plaintiff denies that her claims are
barred by the principles of accord and satisfaction.
43. The allegations ofthis paragraph constitute conclusions oflaw to which no reply is
required. To the extent that a reply is deemed to be required, the Plaintiff denies that her claims are
barred by the doctrine of payment.
44. The allegations of this paragraph constitute conclusions of law to which no reply is
required. To the extent that a reply is deemed to be required, the Plaintiff denies that her claims are
barred by assumption ofthe risk. By way of further response, it is specifically denied that "Plaintiff
voluntarily assumed the risk ofthe facts set forth in this Complaint."
45. The allegations ofthis paragraph constitute conclusions oflaw to which no reply is
required. To the extent that a reply is deemed to be required, the Plaintiff denies that her claims are
barred and limited by the doctrines of comparative negligence and/or assumption of the risk.
46. The allegations of this paragraph constitute conclusions oflaw to which no reply is
required. To the extent that a reply is deemed to be required, the Plaintiff denies that no conduct of
the Defendant or agent of the answering Defendant resulted in the proximate cause of any injury
damage sustained by Plaintiff.
47. The allegations of this paragraph constitute conclusions of law to which no reply is
required. To the extent that a reply is deemed to be required, the Plaintiff denies that her injuries
and/or damages were caused by persons other than answering Defendant and not within the control
of answering Defendant.
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48. The allegations of this paragraph constitute conclusions oflaw to which no reply is
required. To the extent that a reply is deemed to be required, the Plaintiff denies that Defendant
acted reasonably, appropriately, and caused no injuries or damage to Plaintiff.
49. The allegations of this paragraph constitute conclusions oflaw to which no reply is
required. To the extent that a reply is deemed to be required, the Plaintiff denies that hann suffered
by the Plaintiff arose out of her own non-performance of the essential obligations.
WHEREFORE, Plaintiff Mary E. Taylor respectfully requests that this Honorable Court
award damages against Defendant John S. Heiges in an amount in excess of$25,000, plus interest
and costs and such other relief as the Court may deem necessary and/or appropriate.
SHUMAKER WILLIAMS, P.C.
Dated: ~ \\ ~ \
~ Q.Str&f~
La ce . Dague, LD. 9715
Melissa A. Swauger, LD. #82382
P.O. Box 88
Harrisburg, P A 17108
(717) 763-1121
By
Attorneys for Plaintiff
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VERIFICATION
The undersigned, Mary E. Taylor, hereby verifies and states that:
I. She is the Plaintiff in the within action;
2. The facts set forth in the foregoing Reply to Answer and New Matter are true and
correct to the best of her knowledge, information, and belief; and
3. She is aware that any false statements herein are made subject to the penalties of
18 Pa.C.S.A. 94904, relating to unsworn falsification to authorities.
Dated:a!zliJd, aoo/
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CERTIFICATE OF SERVICE
I, Melissa A. Swauger, Esquire, of the law firm of Shumaker Williams, P .c., hereby certifY
that I served a true and correct copy of the foregoing Plaintiffs Reply to Answer and New Matter
of Defendant on this date by depositing a copy of the same in the possession of the United States
mail, first-class, postage prepaid, addressed as follows:
Peter Russo, Esquire
5010 Trindle Road
Mechanicsburg, P A 17055
SHUMAKER WILLIAMS, P.C.
Dated:
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By
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Melissa A. Swauger
P.O. Box 88
Harrisburg, PA 17108
(717) 763-1121
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MARYE. TAYLOR,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY, PENNSYLVANIA
No. 01-1023 Civil
v.
JOHN S. HEIGES,
Defendant
Civil Action - Law
PLAINTIFF'S MOTION TO COMPEL
NOW COMES Plaintiff, Mary E. Taylor (hereinafter "Plaintiff'), by and through her
counsel, Shumaker Williams, P .C., pursuant to C.C.R.P. 400 I-I, who respectfully moves this Court
to compel Defendant to respond to Plaintiffs First Set of Interrogatories Addressed to Defendant
and Plaintiffs First Request for Production of Documents and in support thereof, avers as follows:
I. The above-captioned matter was commenced on February 21, 200 I.
2. Plaintiff s First Set of Interrogatories Addressed to Defendant were served on the
Defendant on or about February 23, 2001. A copy of Plaintiffs First Set of Interrogatories
Addressed to Defendant is attached hereto as Exhibit "I."
3. Plaintiffs First Request for P~oduction of Documents was served on the Defendant
on or about February 23, 2001. A copy of Plaintiffs First Request for Production of Documents is
attached hereto as Exhibit "2."
4. By letter dated March 30, 2001, Plaintiff's counsel requested that Defendant's counsel
serve Plaintiff with a response to Plaintiffs First Set of Interrogatories Addressed to Defendant and
Plaintiff s First Request for Production of Documents in a timely manner. A copy of said letter is
attached hereto as Exhibit "3."
5. On or about April 11, 2001, Defendant responded to Plaintiffs First Set of
Interrogatories Addressed to Defendant by filing Objections to all of the said Interrogatories except
for one. A copy of Defendant' s Objections to Plaintiff s Interrogatories is attached hereto as Exhibit
"4."
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6. On or about April 11, 2001, Defendant responded to Plaintiffs First Request for
Production of Documents by filing Objections to all of the said Requests except for one. A copy of
Defendant's Objections to Plaintiffs Request for Production of Documents is attached hereto as
Exhibit "5."
7. The Interrogatories that are being objected to relate to Defendant's finances,
employment, and Pension Plan with Keen Transport, Inc.
8. The requested documents that are being objected to relate to Defendant's pension
with Keen Transport, Inc.
9. Defendant objects to providing such information because this is a contract action and
he alleges that such information is not reasonably calculated to lead to the discovery of admissible
evidence.
10. In Plaintiffs Interrogatories and Request for Production of Documents, she is
requesting information that is reasonably calculated to lead to the discovery of admissible evidence
and such information is relevant to the claims stated in the above-captioned matter.
11. In Plaintiff s Complaint, she alleges that Defendant breached the Marital Agreement
by failing to pay her $17,500 plus the investment growth that such an amount earned in Defendant's
Pension Plan with Keen Transport, Inc. from 1990 until date of distribution.
12. In addition, Plaintiff is unaware of the amount by which the $17,500 Pension Plan
principal grew because neither Keen Transport, Inc. nor Defendant provided Plaintiff with an
accounting of said funds.
13. The purpose of discovery is to obtain information relevant to the subject matter
involved in the pending action and to obtain information relating to the claim.
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14. The information requested by Plaintiff s Interrogatories and Request for Production
of Documents is discoverable because it is relevant to the subject matter involved in the above-
captioned action and it relates to Plaintiff s claims against Defendant.
15. Moreover, such information will aid Plaintiff in proving her claims against
Defendant.
16. Furthermore, Pennsylvania Rule of Civil Procedure 4000.1 (b) provides that "[i]t is
ground for objection that the information sought will be inadmissible at the trial if the information
sought appears reasonably calculated to lead to the discovery of admissible evidence."
17. As a result, Defendant has no ground to object to Plaintiffs Interrogatories and
Request for Production of Documents.
18. Therefore, Plaintiff requests thatthis Honorable Court issue an Order compelling the
Defendant to respond to Plaintiff s First Set of Interrogatories Addressed to Defendant and Plaintiff s
First Request for Production of Documents.
WHEREFORE, Plaintiff respectfully requests that this Honorable Court issue an Order
compelling the Defendant to respond to Plaintiffs First Set of Interrogatories Addressed to
Defendant and Plaintiffs First Request for Production of Documents.
SHUMAKER WILLIAMS, P.C.
Dated: 6 ) 6 lCl \
By _~ O_51A1CW~
Laurence W. Dague, J.D. #19715
Melissa A. Swauger, J.D. #82382
P.O. Box 88
Harrisburg, P A 171 08
(717) 763-1121
Attorneys for Plaintiff
: 130688
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MARY E. TAYLOR,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY, PENNSYLVANIA
v.
No. 01-1023 Civil
JOHN S. HEIGES,
Defendant
Civil Action - Law
PLAINTIFF'S FIRST SET OF INTERROGATORIES
ADDRESSED TO DEFENDANT
TO: JOHN S. HEIGES, Defendant
--and-
PETER RUSSO, ESQUIRE, his attorney
PLEASE TAKE NOTICE that you are hereby required, pursuant to Pa.R.Civ.P. 4005 and
4006, to serve upon the undersigned a copy of your answers and objections, if any, in writing and
under oath to the following Interrogatories within thirty (30) days after service upon you. The
answers and objections shall be inserted in the space provided following each Interrogatory. Ifthere
is insufficient space to respond to an Interrogatory, the remainder ofthe response shall follow on a
supplemental sheet.
These Interrogatories shall be deemed continuing in nature, in accordance with the provisions
ofPa.R.Civ.P.4007.4. Ifbetween the time of filing your original Answers to these Interrogatories
and the time you or anyone acting on your behalflearns the identity or location of additional persons
having knowledge of discoverable facts and/or the identity of persons expecting to be called as
witnesses at trial and not already disclosed in your Answers, or if you or an expert witness obtain
information upon the basis of which you or he knows that an Answer, though correct
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when made, is no longer true, then you shall promptly supplement your original Answers, under
oath, to include such information thereafter acquired and promptly furnish the same as Supplemental
Answers to the undersigned.
SHUMAKER WILLIAMS, P.C.
Dated: J \'it ~l
By ~a.~
Laurence W. Dague, 1.D. #19 15
Melissa A. Swauger, I.D. #82382
P.O. Box 88
Harrisburg, PA 17108
(717)763-1121
Attorneys for Plaintiff
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INTERROGATORIES:
1. Specifically describe each and every tangible asset, whether real or personal, or
whatsoever nature and wheresoever situate, owned by (either individually, or jointly with any
other person or persons as tenants in common, as joint tenants, as tenants by the entirety, as
tenants in partnership, or otherwise), or possessed by, or in the custody or control of, the above
named Defendant, including but not limited to the following information:
(a) The nature of each such asset, with a description of all of its characteristics;
ANSWER:
(b) The monetary value thereof at the time of your acquisition thereof;
ANSWER:
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(c) The monetary value thereof as of the date you answer this Interrogatory;
ANSWER:
(d) The location of each such asset or the place where such asset may be found as of
the date of your answering this Interrogatory;
ANSWER:
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(e) The name, residential and business address, and residential and business telephone
number of the person(s) or entity who or which holds legal title thereto;
ANSWER:
(f) The name, residential and business address, and residential and business telephone
number, of the person(s) or entity who or which presently has custody or control over each such
asset;
ANSWER:
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(g) The name, residential and business address, and residential and business telephone
number of each person(s) or entity who or which has or holds any kind of a security interest, lien,
mortgage, or other encumbrance against each such asset, together with the nature, original
principal, and current monetary balances, and the place and reference of recordation as a matter
of public record (if any) of each security interest, lien, mortgage, or other encumbrance.
ANSWER:
(h) The precise legal nature of the ownership of each such asset, that is, whether the
above named Defendant owns such asset individually, or jointly with any other person or
persons, and if the latter, the precise legal nature of such joint ownership (as tenants in common,
as joint tenants, as tenants by the entirety, as tenants in partnership, or otherwise), and also state
the name, residential and business address, residential and business telephone number, and
percentage ownership share, of each and every joint tenant.
ANSWER:
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2. Specifically describe each and every intangible asset, of whatsoever nature and
wheresoever situate, owned by (either individually, or jointly with any other person or persons as
tenants in COmmon, as joint tenants, as tenants by the entirety, as tenants in partnership, or
otherwise), or possessed by, or in the control or custody of, the above named Defendant,
including but not limited to the information requested in subparagraphs (a) through (h),
inclusive, ofInterrogatory No. I.
ANSWER:
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3. Specifically describe each and every account which the above named Defendant
presently maintains or holds with any banking institution, trust company, savings and loan
institution, credit corporation, or other financial institution of any nature whatsoever, and with
respect to each such account, provide the following information:
ANSWER:
(a) The precise name and address of the banking institution, trust company, savings
and loan institution, credit corporation, or other financial institution with which each such
account is maintained;
ANSWER:
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(b) The account identification number, and if there is more than one such number,
supply all such numbers, identifYing the nature and purpose of each such number;
ANSWER:
(c) The amount of the monetary balance of each such account as of the date of your
answering this Interrogatory.
ANSWER:
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4. Identify, by name, residential and business address, and residential and business
telephone number, each and every individual or entity who or which is indebted, whether
absolutely or conditionally, to the above named Defendant, and with respect to each such
indebtedness, provide the following information:
ANSWER:
(a) The date on which such indebtedness arose;
ANSWER:
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(b) The original or principal monetary amount of such indebtedness as of the date it
arose;
ANSWER:
(c) The monetary amount of such indebtedness as of the date on which you answer
this Interrogatory;
ANSWER:
(d) Whether such indebtedness is absolute and unconditional, or conditional and
contingent, and if conditional and contingent, specify the conditions or contingencies, and further
state when such conditions or contingencies shall be satisfied, if at all.
ANSWER:
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5. State the name, business and residential address, and business and residential
telephone number, of the present employer of the above named Defendant, and describe the
nature of such employment, including the employment duties of said Defendant. Further, state
the amount of said Defendant's compensation or other remuneration is paid to said Defendant
including the frequency with which same is paid and the dates on which same is paid.
Additionally, state whether such compensation or other remuneration is computed and/or paid on
the basis of a salary, wages, commission, share of net profits, or otherwise.
ANSWER:
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6. Describe all sources of financial income presently received or receivable by the
above named Defendant, including but not limited to:
ANSWER:
(a) The name, business and residential address, and business and residential telephone
number of the person or entity from whom such income is received or receivable by said
Defendant;
ANSWER:
(b) The amount of such income;
ANSWER:
(c) The reason(s) for which such income is received or receivable by said Defendant;
ANSWER:
(d) The date(s) on which and the frequency with which such income is received or
receivable by said Defendant;
ANSWER:
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(e) The period oftime during which such income is receivable, or will continue to be
receivable, by said Defendant.
ANSWER:
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7. Describe any and all trusts, domestic or otherwise, which you have created. A
request for production of a copy of any identified trust is hereby demanded in accordance with
the Pennsylvania Rules of Civil Procedure.
ANSWER:
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8. With respect to any trusts identified in the preceding paragraph, please provide the
following information:
(a) The date on which the trust was created;
ANSWER:
(b) The nature of the trust;
ANSWER:
(c) The assets of the trust;
ANSWER:
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(d) The names, addresses, residential and business telephone numbers of the trustees of
the identified trust;
ANSWER:
(e) The beneficiaries of the identified trust;
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(f) The name, address, residential and business telephone numbers of the administrator
of the identified trust, whether the administrator receives any payment from the trust, the amount of
said payments and the frequency of said payments; and
ANSWER:
(g) The names, addresses, residential and business telephone numbers of all individuals
who receive payments from the trust, the amount of said payments and the frequency of said
payments.
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9. State the date you retired from Keen Transport, Inc. and the date you received your
pension from Keen Transport, Inc.
ANSWER:
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CERTIFICATE OF SERVICE
I, Melissa A. Swauger, Esquire, of the law firm of Shumaker Williams, P.C., hereby certify
that I served a true and correct copy of the foregoing Plaintiff's Interrogatories Addressed to
Defendant on this date by depositing a copy of the same in the possession of the United States mail,
first-class, postage prepaid, addressed as follows:
Peter Russo, Esquire
5010 Trindle Road
Mechanicsburg, PA 17055
SHUMAKER WILLIAMS, P.C.
Dated: 0{ Ql..6(O)
By
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Melissa A. Swauger
P.O. Box 88
Harrisburg, P A 17108
(717)763-1121
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MARY E. TAYLOR,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY, PENNSYLVANIA
v.
: No. 01-1023 Civil
JOHN S. HEIGES,
Defendant
Civil Action - Law
TO:
PLAINTIFF'S FIJRST REOUEST FOR PRODUCTION OF DOCUMENTS
JOHN S. HEIGES, Defendant
--and--
PETER RUSSO, ESQUIRE, his attorney
PLEASE TAKE NOTICE that you are hereby required pursuant to Pa.R.Civ.P. 4009.1, et
seq" to produce for inspection and copying all of the documents in your possession, custody, or
control which are described in the categories set forth below and to answer this Request in
accordance with Pa.R.Civ.P. 4009.12. The documents shall be produced at the offices of Shumaker
Williams, P.c., 3425 Simpson Ferry Road, Camp Hill, Pennsylvania 17011, on or before March 26,
2001, or at such time and place as the parties may mutually agree:
These Requests for Production shall be deemed continuing in nature, in accordance with the
provisions ofPa.R.Civ.P. 4007.4. The Requests are as follows:
1. The Defendant's tax filings, including, but not limited to, state and federal income
tax forms and schedules, for the year 2000.
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2. Any and all documents that relate to or reflect Defendant's net worth upon receiving
his pension from Keen Transport, Inc.
3. Any and all documents that relate to or reflect Defendant's net worth at the time of
answering this Interrogatory.
4. Any and all documents identified in your Answers to Plaintiffs Interrogatories.
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5. Any and all documents relating to or reflecting the monetary value of Defendant's
Pension Plan from Keen Transport, Inc. upon date of distribution.
6. Any and all documents relating to or reflecting the earmngs attributable to
Defendant's Pension Plan from Keen Transport, Inc. from 1990 until date of distribution.
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7. Any and all accountings, notes, memoranda, correspondence, computer printouts,
emails, and other documents, and computer records or entries that relate or refer to Defendant's
Pension Plan with Keen Transport, Inc. from 1990 until the date of distribution.
SHUMAKER WILLIAMS, P.C.
Dated:o< f d. ~ I ()\
.' .. ~
By ~(). 0., -00
Laurence W. Dague, J.D. #19 15 ~
Melissa A. Swauger, J.D. #82382
P.O. Box 88
Harrisburg, P A 17108
(717)763-1121
Attorneys for Plaintiff
:128229
, ~~ '1irtIItf"
CERTIFICATE OF SERVICE
I, Melissa A. Swauger, Esquire, of the law firm of Shumaker Williams, P.C., hereby certify
that I served a true and correct copy of the foregoing Plaintiffs Request for Production of
Documents on this date by depositing a copy of the same in the possession of the United States mail,
first-class, postage prepaid, addressed as follows:
Peter Russo, Esquire
5010 Trindle Road
Mechanicsburg, P A 17055
SHUMAKER WILLIAMS, P.c.
Dated: ell d-1f ~
By M~f1s~au~r ~c;R-
P.O. Box 88
Harrisburg, P A 171 08
(717) 763-1121
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Shumaker Williams, ec.
ATTORNEYS AT LAW
KEITH A. ClARK PAUL A. ADAMS. LAURENCf W. DAGue' NICtKl.AS BYBEL, JR. KATHY W. MORRISON. J. srEYEN LOVEJOY. MNmN B. ELLUl.. a TYlER LINCOlN
ANTHONY J. fOSCHI DAVID R. BRESCHI. RUTH A. COURTNEY ANGElA L. TMOUAS CHERYL A. ZEMAN- DAVID L. GllOEANEW JEAN SVOBODA. McMA9fER MELISSA A. SWAUGER
'.u.so ADMITtED TD MARYLAIfO 8M
.'''DMIITfIl TO ""R'flAHD BAR ONlX
.'1U.$O ADMITlED TO VIRGlNlo\ BoUI
.JAMES E. REID, JR. (OF COUNSE4
REPLY P'Q BOX B8
HARRISBURG, PENNSYLVANIA 17108
TELEPHONE: (7t7) 763-1121
March 30, 2001
READlNG. PENNSYLVANIA
TELEPHONE: (81~ 929.sB08
STATE COLlEGE. PENNSYLVANIA
TELEPHONE: (814) 2:J4.3211
TELECOPIER: (717) 763-7419
SoMAIL: mBlI@ShumakerwilJiams.com
JOHN J. SHUMAMEA (19&1999)
JOHN G. WlLUAMS (RETIRED)
MARYLAND
TElEPHONE: (410) 826-5223
Writer's Direct Dial No.:
(717) 909-1655
Writer's E.mail Address:
swaul!ertii1shumakerwilliams.eom
Peter Russo, Esquire
5010 Trindle Road
Mechanicsburg, P A
17055
Re:
Mary E. Taylor v. John S. Heiges
C.C.P. Cumberland County, No. 01-1023
Our File No. 585-01(2)
Dear Mr. Russo:
On February 23, 2001, we forwarded to you Plaintiffs Interrogatories and Request for
Production of Documents. To date we have not received a response from Defendant to Plaintiff's
Interrogatories and Request for Production of Documents. Kindly provide Defendant's response to
Plaintiff's Interrogatories and Defendant's response to Plaintiff's Request for Production of
Documents no later than April 6, 2001, in order to avoid the filing of a motion to compel. Thank
you for your attention to this matter.
Sincerely,
'n-utIPJol C, ",S(,i ct0~~L
By Melissa A. Swauger
MAS/rnac: 129529
cc: Mary E. Taylor
THE PENNSYLVANIA CENTER 3425 SIMPSON FERRY ROAD CAMP HILL. PENNSYLVANIA 17011
'INIW.~umakerwllllams.com
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MARYE. TAYLOR
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYL VANIA
Plaintiff
NO. 2001-11023
CIVIL TERM
v.
JOHN S. HEIGES
CIVIL ACTION - LAW
Defendant
DEFENDANT'S OBJECTIONS TO
PLAINTIFF'S INTERROGATORIES
AND NOW, COMES, the Defendant, John S. Heiges, by and through his counsel, Peter
J. Russo, Esquire, and aver the following:
1. (a)-(h) Objection. As this matter is a contract action, it appears that this request is not
reasonably calculated to lead to the discovery of admissible evidence.
2. Objection. As this matter is a contract action, it appears that this request is not reasonably
calculated to lead to the discovery of admissible evidence.
3. (a)-(c) Objection. As this matter is a contract action, it appears that this request is not
reasonably calculated to lead to the discovery of admissible evidence.
4. (a)-(d)
Objection. As this matter is a contract action, it appears that this request is not
reasonably calculated to lead to the discovery of admissible evidence.
5. Objection. As this matter is a contract action, it appears that this request is not reasonably
calculated to lead to the discovery of admissible evidence.
6. (a)-(e) Objection. As this matter is a contract action, it appears that this request is not
reasonably calculated to lead to the discovery of admissible evidence.
7. Objection. As this matter is a contract action, it appears that this request is not reasonably
calculated to lead to the discovery of admissible evidence.
8. (a)-(g) Objection. As this matter is a contract action, it appears that this request is not
reasonably calculated to lead to the discovery of admissible evidence.
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9. Defendant retired on or about February 9, 2000. After reasonable search, the exact date that
Defendant received the pension is unknown but it is expected that Defendant received the
pension after March of 2000.
10. Objection. As this matter is a contract action, it appears that this request is not reasonably
calculated to lead to the discovery of admissible evidence.
Dated: l{ W 0)
~~
Peter J. Russo
(717) 591-1755
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MARYE. TAYLOR
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
NO. 2001-11023
CIVIL TERM
v.
JOHN S.IIEIGES
CIVIL ACTION - LAW
Defendant
VERIFICATION
I, John S. Heiges, verify that the statements made in the foregoing document are true and
correct. I understand that false staternents made herein are subject to the penalties of 18 Pa.C.S.
g4904 relating to unsworn falsification to authorities.
4- J-2oo/
DATE
JI,/
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MARYE. TAYLOR
,
IN tHE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYL VANIA
Plaintiff
: NO. 2001-11023
CIVIL TERM
v.
JOHN S. HEIGES
CIVIL ACTION - LAW
Defendant
CERTIFICATE OF SERVICE
I, Peter J. Russo, hereby certify that I am on this day serving a copy of the
foregoing document upon the person(s) and in the matter indicated below:
Service by First-Class Mail, Postage Prepaid, and addressed as follows:
Melissa A. Swauger, Esquire
P.O. Box 88
Harrisburg, PA 17108
Date: Ld II \0 \
C3dG2----
Peter J. Russo
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MARY E. TAYLOR
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
NO. 2001-11023
CIVIL TERM
v.
JOHN S. HEIGES
CIVIL ACTION - LAW
Defendlant
DEFENDANT'S OBJECTIONS TO .
PLAINTIFF'S REOUEST FOR PRODUCTION OF DOCUMENTS
:1
AND NOW, COMES, the Defendant, John S. Heiges, by and through his counsel, Peter
J. Russo, Esquire, and aver the following:
1. Objection. As this matter is a contract action, it appears that this request is not reasonably
calculated to lead to the discovery of admissible evidence.
2. Objection. As this matter is a contract action, it appears that this request is not reasonably
calculated to lead to the discovery of admissible evidence.
3. Objection. As this matter is a contract action, it appears that this request is not reasonably
calculated to lead to the discovery of admissible evidence.
4. None.
5. Objection. As this matter is a contract action, it appears that this request is not reasonably
calculated to lead to the discovery of admissible evidence.
6. Objection. As this matter is a contract action, it appears that this request is not reasonably
calculated to lead to the discovery of admissible evidence.
7. Objection. As this matter is a contract action, it appears that this request is no, reasonably
calculated to lead to the discovery of admissible evidence.
Dated: \ I I 'I II) i
Respectfully ~.
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Peter 1. Russo
(717) 591-1755
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MARY E. TAYLOR
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
NO. 2001-11023
CIVIL TERM
v.
JOHN S. HEIGES
CIVIL ACTION - LAW
Defendant
VERIFICATION
I, John S. Heiges, verify that the statements made in the foregoing document are true and
correct. I understand that false statements rnade herein are subject to the penalties of 18 Pa.C.S.
~4904 relating to unswom falsification to authorities.
4 - 1--- of.ro I
DATE
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MARY E. T AYLOR
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
: NO. 2001-11023
CIVIL TERM
v.
JOHN S. HEIGES
CIVIL ACTION - LAW
Defendant
CERTIFICATE OF SERVICE
I, Peter 1. Russo, hereby certify that I am on this day serving a copy of the
foregoing document upon the person(s) and in the matter indicated below:
Service by First-Class Mail, Postage Prepaid, and addressed as follows:
Melissa A Swauger, Esquire
P.O. Box 88
Harrisburg, P A 17108
Date:~. i( ),0)
Peter 1. Russo
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MARYE. TAYLOR,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY, PENNSYLVANIA
No. 01-1(}23 Civil
v.
Defendant
Civil Action - Law
JOHN S. HEIGES,
PLAINTIFF'S FIRST SET OF INTERROGATORIES
ADDRESSED TO DEFENDANT
TO: JOHN S. HEIGES, Defendant
--and-
PETER RUSSO, ESQUIRE, his attorney
PLEASE TAKE NOTICE that you are hereby required, pursuant to Pa.R.Civ.P. 4005 and
4006, to serve upon the undersigned a copy of your answers and objections, if any, in writing and
under oath to the following Interrogatories within thirty (30) days after service upon you. The
answers and objections shall be inserted in the space provided following each Interrogatory. Ifthere
is insufficient space to respond to an Interrogatory, the remainder of the response shall follow on a
supplemental sheet.
These Interrogatories shall be deemed continuing in nature, in accordance with the provisions
ofPa.R.Civ.P.4007.4. Ifbetween the time of filing your original Answers to these Interrogatories
and the time you or anyone acting on your behalflearns the identity or location of additional persons
having knowledge of discoverable facts and/or the identity of persons expecting to be called as
witnesses at trial and not already disclosed in your Answers, or if you or an expert witness obtain
information upon the basis of which you or he knows that an Answer, though correct
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CERTIFICATE OF SERVICE
I, Melissa A. Swauger, Esquire, ofthe law firm of Shumaker Williams, P .C., hereby certify
that I served a true and correct copy of the foregoing Plaintiffs Motion to Compel on this date by
depositing a copy of the same in the possession of the United States mail, first-class, postage
prepaid, addressed as follows:
Peter Russo, Esquire
5010 Trindle Road
Mechanicsburg, P A 17055
SHUMAKER WILLIAMS, P.C.
Dated:
By
Melissa A. Swauger
P.O. Box 88
Harrisburg, P A 171 08
(717) 763-1121
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MARYE. TAYLOR,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
01-1023 CIVIL
CIVIL ACTION - LAW
vs.
JOHN S. HEIGES,
Defendant
IN RE: PLAINTIFF'S MOTION TO COMPEL
ORDER
AND NOW, this JiH- day of May, 2001, a briefargurnent on the plaintiffs motion
to compel is set for Thursday, June 7, 2001, at 2:00 p.m. in Courtroom Number 4, Cumberland
County Courthouse, Carlisle, P A.
BY THE COURT,
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K71\.. Hess, J.
Melissa A. Swauger, Esquire
For the Plaintiff
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Peter Russo, Esquire
For the Defendant
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PETER J. RUSSO, ESQUIRE
5010 East Trindle Road, Suite 200
Mechanicsburg, P A 17050
(717) 591-1755
Attorney for Defendant
MARYE. TAYLOR
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
v.
NO. 01-1023 CIVIL
JOHN S. HEIGES
Defendant
CIVIL ACTION - LAW
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
AND NOW, COMES Defendant, John S. Heiges, by and through his attorney, Peter J.
Russo, and moves for summary judgment pursuant to Pa. R.C.P. 1035. In support thereof,
Defendant avers the following:
1. Plaintiff, Mary E. Taylor, commenced suit on or about February 21, 2001 by filing a
Complaint.
2. The matter instituted by the Plaintiff seeks damages stemming from defendant's alleged
breach of the parties' Marital Agreement dated November 6,1990. A true and correct copy
of the Marital Agreement is attached hereto as Exhibit A.
3. In the Marital Agreement dated November 6,1990, Defendant simply "agrees to a QDRO for
$17,500.".
4. Defendant, John S. Heiges, filed an Answer and New Matter to which Plaintiff responded
and the peadings have closed.
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5. In the breach of contract action instituted by the Plaintiff, she seeks recovery of damages
from the Defendant's alleged failure to comply with the terms of a Marital Agreement dated
November 6, 1990.
6. Upon his retirement, Defendant learned that no QDRO was ever presented to Defendant's
employer nor had the $17,500.00 ever been sent to Plaintiff.
7. On or about November 24, 2000, Defendant sent Plaintiff a check in the amount of
$17,500.00 with the notation "divorce settlement." A copy of said check is attached hereto as
Exhibit B.
8. Plaintiff, through her counsel, returned the check to Defendant's counsel claiming a failure to
remit increased value and/or interest on the agreed $17,500.00.
9. After returning the check to the Defendant, Plaintiff commenced suit.
10. In Defendant's Answer and New Matter and the attached Affidavit he clearly asserts that
there were no additional or ancillary agreements with respect to segregation of funds or the
increase or decrease in the flat sum of $17,500.00. John S. Heiges' Affidavit is attached
hereto as Exhibit C.
II. In Count One of the Complaint, Plaintiff asserts that Defendant failed to pay Plaintiff
$17,500.00 plus investment growth.
12. The "four corners" of the document fail to place any requirements on the Defendant other
than to agree to a QDRO for $17,500.00.
I
13. The "four comers" of the document are silent as to the accumulation of interest.
14. The "four corners" of the document are silent as to increases and decreases in the value of the
$17,500.00.
15. The "four corners" of the document are silent as to the segregation of any funds.
16. Defendant's employer never received a QDRO and, as evidenced by the attached affidavit of
Shirley Carlisle, Corporate Secretary of Keen Transport, Inc., could not segregate funds
unless a QDRO was obtained. A true and correct copy of the Affidavit of Shirley Carlisle is
attached hereto as Exhibit D.
17. In Count Two of the Complaint, Plaintiff asserts a quasi-contractual remedy, i.e. unjust
enrichment.
18. Since a contract exists and the terms of the contract are set forth therein a claim for unjust
enrichment is not supported by the pleadings.
19. It is not the Court's obligation to revisit the terms ofa bargained for exchange, particularly
when all parties to the contract were represented by counsel at the time of the negotiation of
the contract and its execution.
20. There is no question of material fact relating to any issues in this case.
21. Pursuant to Pa. R.C.P. 1035, Defendant, John S. Heiges, is entitled to summary judgment.
WHEREFORE, it is respectfully requested that this Honorable Court grant Defendant,
John S. Heiges', Motion for Summary Judgment, with prejudice.
~~
Peter 1. Russo
Date: ~ '4/ D I
PETER J. RUSSO, ESQUIRE
50 I 0 East Trindle Road, Suite 200
Mechanicsburg, P A 17050
(717) 591-1755
MARYE. TAYLOR
Plaintiff
v.
JOHN S. HEIGES
Defendant
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Attorney for Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 01-1023 CIVIL
CIVIL ACTION - LAW
VERIFICATION
Peter J. Russo, Esquire, hereby states that I am counsel for Defendant John S. Heiges,
and that the statements made in the foregoing are true and correct to the best of my knowledge,
information and belief. The undersigned understands that the statements therein are made
subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to
authorities.
Date:~
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Peter J. Russo
Attorney for Defendant
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AGIlEEKENT
AGREEMENT made this h t;kday of /lJ..............b , 1990,
by and between MAllY E. BEIGES, ("WIFE") of 179 Simmons Road,
Mecbanicsburg, Cumberland County, Pennsylvania, and JOHN S.
BEIGES, ("HUSBAND") of 179 Simmons Road, Mecbanicsburg,
Cumberland County, Pennsylvania.
WlTllESSETH.
WHE~. the Parties heretp, are. HUSBAND and WIFE, having
been married on April 12, 1959 at First United Methodist Church,
Mechanicsburg, Cumberland County, Pennsylvania. There were
two children of this marriage.
WHEREAS. diverse unhappy differences, disputes and difficulties
have arisen between the Parties and it is tbe intention of
HUSBAND and WIFE to live separate and apart for the rest of
tbeir natural lives, and the Parties hereto are desirous of
setting fully and ,finally their respective financial and property
rights and obligations as between each other including, without
limitation by specification. the settling of all matters
between tbem relating to the ownership and equitable distribution
of real and personal property; the settling of all matters
between them relating to the past, present and future support,
alimony and/or maintenance of WIFE by HUSBAND or of HUSBAND
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by. WU~;' and"ih gener.'i"!t~e sett1i!lg. of any and all claims
and p088'ible claims by one against the other or against their
respective estates.
ROW, THEREFORE, in consi~eration of the premises and
of the mutual promises, covenants and undertakings hereinafter
set fOrth and for other good and valuable consideration, receipt
of which is hereby acknowledged by each of the Parties
hereto, WIFE and HUSBAND, each intending to be legally bound
hereby, covenant and agree as follows.
1. AGQEMl!:lIT lIO'l A B.U TO DIVOIl.CE PROCEEDllIGS
This Agreement shall not be considered an affect or bar
the right of HUSBAND and WIFE to an absolute divorce
on lawful grounds if such g1l"ounds now exist or shall hereafter
exist or to such defense as may be available to either Pal:'ty.
This Agreement is not intended to condone and shall not be
deemed to be a condonation On the part of either Party hereto
of any act or acts On the part of the other Party which have
occasioned the disputes or unhappy differences which have
occurred pl:'iol:' to or which may occur subsequent to the date
hereof. The Pal:'ties intend to secure a mutual consent,
lIo-Fault Divorce pursuant to the terms of Section 20l(c)
of the Divorce Code of 1980 amended.
2 . EFFECT OF DIVORCE DECREE
The Parties agree that unless otherwise specifically
provided herein, this Agreement shall continue in full force
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and effect after such time as a final Decree in Divorce may
be entered with respect to the Parties.
3. AGBEEMENT TO BE INCORPORATED IN DIVORCE DECREE
The Parties agree that the terms of this Agreement shall
be incorporated but not merged into any Divorce Decree which
may be entered with respect to them. The Parties further.
agree that the Court of Common Pleas which may enter such
divorce decree shall retain continuing jurisdiction over the
Parties and the subject matter of the Agreement for the purpose
of enforcement of any of the provisions thereof.
4. DATE OF EXECUTION
The "date of execution" or "execution date" of this Agreement
shall be defined as the date of execution by the Party last
executing this Agreement.
5. DISTRIBUTION DATE
The transfer of property, funds and/or documents provided
for herein shall only take place on the "distrib~tion date"
which shall be defined as the date of execution of this Agreement
unless otherwise specified herein.
6. ADVICE OF COUNSEL
WIFE and HUSBAND declare that they have each had a full
and fair opportunity to obtain independent legal advice of
counsel of their selection; that WIFE has been independently
represented by counsel and that HUSBAND, cognizant of his
right to legal representation, declares that it is his express,
-3-
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volunt~ry and knowing intention not to ~vail himself of his
right to counsel and chooses instead to represent himself
with res.pect to the preparation and execution of this Agreement.
HUSBAND further declares that he is executing this Agreement
freely ~nd voluntarily, h~ving obtained such knowledge and
disclosure of WIFE'S assets.
7. PERSONAL RIGHTS
HUSBAND and WIFE may and shall, at all times here~fter,
live separate and ap~rt. They sh~ll be free from ~ny control,
restraint, interference or autho~ity, direct or indirect,
by the other in all respect as fully as if they were unmarried.
They may reside ~t such place or p.laces as they may select.
Each may, for his or her separate use of benefit, conduct,
carryon or eng~ge in any business, occupation, profession
or employment which to him or her may seem advisable. HUSBAND
and WIFE shall not molest, harass, dhturb or malign each
other or the respective families of each other nor compel
or attempt to compel the other to coh~bit or dwell by ~ny
means or in any m~nner whatsoever with him or her.
. 8. MUTUAL IlELEASES
HUSBAND and WIFE e~ch do hereby mutually remise, release,
qUit-claim ~nd forever discharge the other and the est~te
of such other, for all time to come, and for all purposes
whatsoever, of and from any and all rights, title and interests,
of cl~ims in or against the property (inclUding income and
BENN, P.C.
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gdn from property hereafter accruing) of the other or against
the estate of such other, of whatever nature and wheresoever
situate, which he or she now has or at any time hereafter
may have against such other, the estate of such other or any
part thereof, whether arising out of any former acts, contracts,
engagements or liabilities of such other or by way of dower
or curtesy, or claims in the nature of dower or curtesy or
widow's or widower's rights, family exemption or similar allowance,
or under the intestate laws, or the right to take against
~
the spouse's will; or the right to treat a lifetime conveyance
by the other as testamentary, or all other rights of a surviving
spouse to participate in a deceased spouse's estate. whether
arising under the laws of (a) the Commonwealth of Pennsylvania.
(b) State, Commonwealth or territory of the United States,
or (c) any other country, or any rights which either Party
may have or at any time hereafter have for past. present or
future support or maintenance, ali~ony. pendente lite, counsel
fees. equitable distribution. costs or expenses. whether arising
as a result of the marital relation or otherwise, except,
and only except, all rights and agreements and obligations
of whatsoever nature arising or which may arise under this
Agreement or for the breach of any provision thereof. It
is the intention of HUSBAND and WIFE to give to each other
by the execution of this Agreement a full, complete and general
release with respect to any and all property of any kind or
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nature, real, personal or mixed, which the other now owns
or may hereafter acquire, except and only except all rights
and agreements and obligations or whatsoever nature arising
or which may arise under this Agreement or for the breach
of any provision thereof.
9. PEIlSONAL PROPERTY
HUSBAND and WIFE hereby acknowledge that all the tangible
personal property situate in the marital home at 179 Simmons
Road, Mechanicsburg, Cumberland County, Pennsylvania, which
includes, but is not limited to, jewelry, clothes, furniture,
rugs, carpets, household. equipment and appliances, tools,
pictures, books, works of art, and other personal property,
shall be the sole and exclusive property of the WIFE, with
the exception of the following items of personal property
which shall be the sole and exclusive property of the HUSBAND,
as follows I
(a) Fishing Equipment
(b) Tools
(c) Personal Clothing
(d) Any other items wife agrees are the HUSBAND'S
The Parties do hereby specifically waive, release, renounce
and forever abandon whatever claim, if any, he or she may
have with respect to the above items which shall become the
sole and separate property of the other, as set forth above.
10.
MOTOR VEHICLltS
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With respect to the motor vehicle, HUSBAND and WIFE agree
as follows:
(a) Any vehicles owned by HUSBAND and WIFE in their
own name presently shall become the sole and exclusive property
of their respective property of their owners free and clear
of all liens and encumbrances.
11. AFTER ACQUlRED PERSONAL PROPERTY
Each of the Parties shall hereafter own and enjoy, independently
of any claims or right of the other, all items of personal
property, tangible or intangible, hereafter acquired by him
or her, with full power in him or her to dispose of same as
fully and effectively, in all respects and for all purposes,
as though he or she were unmarried.
1 12. SALE OF REAL ESIATE - 0IV'S,,,,, OF FROCEEDS ('{t. it :IJI- t
Tne real property and improvements thereon, evidenced by De~~
marked Exhibit "A" and Deed marked Exhibit "a" which are known
and numbered as 179 Simmons Road, Mechanicsburg, Cumberland County,
Pennsylvania shall be disposed of as follows:
1. Property (house and lot to be sold and proceeds divided)
(a) Property to be listed for sale April 1, 1991
(b) If house and lot not sold by August 1. 1991, ~ife to
pay Husband $500. a month rent
(c) ~ife to pay all expenses on house including taxes
electric
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13. REAL ESTATE TAXES
Not applicable.
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14. PENSION PLAN
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Husband is employed by KEEN ~RANSPORT INC. and presently haa a
pension and Husband agrees to a QDRO for $17,500.
15. LEGAL FEES r\J\'4.\ ~If
Wife agrees to pay all cost~~d fees of this divorce to Wiley &
Benn P.C. and her attorney fees.
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16. WIVE'S DEBTS
WIFE represents ~nd warrants to HUSBAND that since the
Parties marital separation, she has not contracted or incurred
any debt or liability for which HUSBAND or his estate might
be responsible and WIFE further represents and warrants to
HUSBAND that she will not contract or incur any debt or liability
after the execution of this Agreement, for which HUSBAND or
his estate might be responsible. WIFE shall indemnify and
save harmless HUSBAND from any and all claims or demands made
against him by reason of debts or obligations incurred by
her.
17. HUSBAND'S DEBTS
HUSBAND represents and warrants to WIFE that since the
Parties marital separation, he has not contracted or incurred
any debt or liability for which WIFE or her estate might be
responsible and HUSBAND further represents and warrants to
WIFE that he will not contract or incur sny debt or liability
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after the execution of this Agreement for which WIFE or her
eState might be responsible. HUSBAND shall indemnify and
save harmless WIFE from any and all claims or demands made
against her by reason of debts or obligations incurred by
him.
18. FINAL EQUITABLE DIVISION OF PROPERTY
The Parties agree that the division of all property set
forth in Agreement is equitable and in the event an action
in Divorce is commenced, both Parties relinquish the right
to divide said property in any manner not consistent with
the terms set forth herein. It is further the intent, understanding
and agreement of the Parties that this Agreement is a full,
final, complete and equitable property diVision.
19. WAIVER OR MOD1.FICATION TO BE IN WRITDlG
No modification or waiver of any of the terms hereof
shall be valid unless in writing and signed by both Parties
and uo waiver of any breach hereof or default hereunder shall
be deemed a waiver of any subsequent default of the same or
similar nature.
20. MUTUAL COOPERATION
Each Party shall, at any time and from time to time hereafter,
take any and all steps and execute, acknowledge and deliver
to the other Party, any and all further instruments and/or
documents that the othe.r Party may reasonably require for
the purpose of giving full force and effect to the provisions
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of this Agreement.
21. LAW OF PENNSYLVANIA APPLICABLE
This Agreement shall be construed in accordance with
the laws of the Comu.onwealth of Pennsylvania.
22. AGIUEKENT BINDING ON HEIRS
This Agreement shall be binding and shall inure to the
benefit of the Parties hereto and their respective heirs,
executors, administra~orSt successors, and assigns.
23. IIITEGRATION
This Agreement constitutes the entire understanding of
the Parties and supersedes any and all prior agreements and
negotiations between them. There are no representations or
warranties other than those expressly set forth herein.
24. NOIll-MERGER
It is the Parties intent that this Agreement does not
merge with the Divorce Decree, but rather, it continues to
have independent contractual significance and each Party maintains
their contractual remedies.
25. OTIIER DOC.UHE!lTATIOIf
WIFE and HUSBAND covenant and agree that they will forthwith
(and within at least twenty (20) days after demand therefore>,
execute any and all written instruments, assignments, releases,
satisfactions, deeds, notes, stock certificates, or such other
writings as may be necessary or desirable for the proper effectuation
of this Agreement, and as their respective counsel shall mutually
-11-
V & BENN, P.C.
OKSEVS AT LAW
08 :WUMPt:R L"lIlIE
j',U. BOX".
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agree, should be so ~feC\lted, inolfder to carry out fully and
I I ' ; I I ~
effectively the tnms, of' this A8Ireement.
26. HO WAIVER OF DEFAULT
This Agreement shsll remain in full force and effect
unless and until terminated under and pursuant ot the terms
of this Agreement. The failure of either Party to insist
upon strict performance of any of the provisions of this Agreement
shall in no way affect the right of such Party hereafter to
en fore the same, nor shall the waiver of any breach of any
subsequent default of the same or similar nature, nor shall
it be construed as a waiver of strict performance of any other
obligations herein.
27. SEVERABILITY
If any term, condition, clause or provision of this Agreement
shall be determined or declared to be void or invalid in law
or otherwise, then only that term, condition, clause or provision
shall be stricken from this Agreement and in sll other respects
this Agreement shall be valid and continue in full force,
effect. and operation. Likewise, the failure of any Party
to meet her or his obligations under anyone or more of the
Paragraphs herein, with the exception of the satisfactions
.
of the conditions precedent, shall in no way avoid or alter
the remaining obligations of the Parties.
28. IlEADIHGS HOT PAK'E OF AGKEEKEHT
Any heading preceding the text of the several paragraphs
-12-
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uaSEn AT LAW
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and subparagraphs hereof, are inserted solely for convenience
of reference and shall not constitute a part of thi,s Agreement
nor shall they affect its meaning, construction or effect.
29. HUSBAND' S IHBERI'lA1!lCE
WIFE agrees that HUSBAND has heretofore inherited the
sum of Fifteen thousand ($15,000) Dollars from his family
which is currently in a Certificate of Deposit at Farmer's
Trust Company and WIFE agrees to release all of her right,
title and interest in and to this Certificate of Deposit upon
sign!n.!I this Agreement.
\
IJ WITHESS WHEREOF. the Parties hereto have set their
hands and seals the day and year first above written.
WIDESS.
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MARY E. TAYLOR
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
: NO. 2001-1023
CIVIL TERM
v.
JOHN S. HEIGES
: CIVIL ACTION - LAW
Defendant
AFFIDAVIT of JOHN S. HEIGES
I, JOHN S. HEIGES, being duly sworn aver the following:
1. I am the defendant in the above-captioned matter.
2. I was last employed with Keen Transport, Inc.
3. My ex-wife, Mary Taylor and I, through our attorneys, negotiated a property settlement
agreement.
4. At no time did I ever agree to segregate or separate any portion of my retirement account
in favor of Mary E. Taylor or Mary E. Heiges without the drafting of a QDRO.
5. At no tirne did I ever agree to provide Mary E. Taylor or Mary E. Heiges with an interest
on the $17,500.00 which she was to obtain via QDRO.
6. At no time did I ever agree to provide Mary E. Taylor or Mary E. Heiges with any type of
increase or decrease in the "value" of the $17,500.00 which she was to obtain via QDRO.
7. I was never informed that it was necessary or required to segregate or separate any
portion of my retirement account in favor of Mary E. Taylor or Mary E. Heiges.
8. I have never received a Qualified Domestic Relations Order which informed that it was
necessary or required to segregate or separate any portion of my retirement account in favor of
Mary E. Taylor or Mary E. Heiges.
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9. When I retired and obtained the funds I leamed that Mary E. Taylor never received her
$17,500.00 and I attempted to pay Mary E. Taylor that amount.
10. Prior to my paying that sum to Mary E. Taylor, it confirmed that she was expecting
$17,500.00 and nothing more.
I hereby affirm the following to be true and correct.
Date: 1fJ{ (i ;pJ/
Sworn to me this
day of May, 2001
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. Notarial Seal
M.x:~g: L Be"asom. Notary Public
My comm~ono&,xpfr:~~~':,"~. ~'tJ'4ty
Member, PennSYlvanlaAssOClationOfNolanes
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MARYE. TAYLOR
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
NO. 2001-11023
CIVIL TERM
v.
JOHN S. HEIGES
CIVIL ACTION - LAW
Defendant
AFFIDAVIT of SHIRLEY CARLISLE
I, SHIRLEY CARLISLE, being duly sworn aver the following:
1. I am the Corporate Secretary of Keen Transport, Inc. which is located in Hudson Ohio.
2. John S. Heiges was employed with Keen Transport, Inc.
3. While employed with Keen Transport, Inc., John S. Heiges was a participant in the
employer's Profit Sharing and Savings Plan.
4. At no time did I ever segregate or separate any portion of John S. Heiges' retirement
account in favor of Mary E. Taylor or Mary E. Heiges.
5. Prior to John S. Heiges' retirement, I was never informed that it was necessary or
required to segregate or separate any portion of John S. Heiges' retirement account in favor of
Mary E. Taylor or Mary E. Heiges.
6. I have never received a Qualified Domestic Relations Order which informed that it was
necessary or required to segregate or separate any portion of John S. Heiges' retirement account
in favor of Mary E. Taylor or Mary E. Heiges.
7. Without a Qualified Domestic Relations Order specifically stating requirements of the
Order, I would not and could not segregate or separate any portion of John S. Heiges' retirement
account in favor of Mary E. Taylor or Mary E. Heiges.
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I hereby affirm the following to be true and correct.
4-/1- ()I
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Shirley Carlisle Cf
Sworn to me this / L
day of April, 2001
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PETER J. RUSSO, ESQUIRE
5010 East Trindle Road, Suite 200
Mechanicsburg, P A 17050
(717) 591-1755
Attorney for Defendant
MARY E. TAYLOR
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 01-1023 CIVIL
JOHN S. HEIGES
Defendant
CIVIL ACTION - LAW
CERTIFICATE OF SERVICE
I, Peter 1. Russo, Esquire, hereby certify that on this day, I am serving a true and correct
copy of the foregoing docurnent on the person(s) listed below in the marmer listed below:
Via First Class Mail, Postage Pre-Paid, and addressed as follows:
Melissa W. Swauger, Esquire
Shumaker Williams
P.O. Box 88
Harrisburg,PA 17108
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Peter 1. Russo
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MARYE. TAYLOR
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY,
PENNSYL VANIA
Plaintiff
: NO. 2001-1023
CIVIL TERM
v.
JOHN S. HEIGES
: CML ACTION - LAW
Defendant
PRAECIPE FOR LISTING CASE FOR ARGUMENT
TO THE PROTHONOTARY:
Please list the Summary Judgment in the above captioned case for the next
Argument Court date ofJuly 25, 2001.
1. Counsel for Plaintiff is Peter J. Russo, 5010 E. Trindle Road, Mechanicsburg,
PA 17050.
2. Counsel for Defendant is Melissa W. Swauger, P.O. Box 88, Harrisburg, P A
17108.
3. I will notify all parties in writing within two days that this case has been listed
for argument.
s-/'-4.[',
Date
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Attorney for Plaintiff
Peter J. Russo, Esquire
50 I 0 E. Trindle Road
Mechanicsburg, P A 17050
(717) 591-1755
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: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
: NO. 2001~1023
CIVIL TERM
v.
JOHN S. HEIGES
CIVIL ACTION - LAW
Defendant
DEFENDANT'S OBJECTION TO
PLAlNl'IFF'S NOTICE OF INTENT TO SERVE SUBPOENA
AND NOW, COMES, the Defendant, John S. Heiges, by and through his counsel, Peter
J. Russo, Esquire, and aver the following:
As this matter is a contract action, the request of Defendant's former employer appears
not to be reasonably calculated to lead to the discovery of admissible evidence.
Respectfully submitted,
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Peter 1. Russo
5010 E. Trindle Road
Suite 200
Mechanicsburg, P A 17050
(717) 591-1755
Dated: s:- J II I 0 I
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MARYE. TAYLOR
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
: NO. 2001-11023
CIVIL TERM
v.
JOHN S. HEIGES
: CIVIL ACTION -LAW
Defendant
CERTIFICATE OF SERVICE
I, Peter 1. Russo, hereby certify that I am on this day serving a copy of the
foregoing document upon the person(s) and in the matter indicated below:
Service by First-Class Mail, Postage Prepaid, and addressed as follows:
Melissa A. Swauger, Esquire
P.O. Box 88
Harrisburg, P A 17108
Date:~
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Peter J. Russo, Esquire
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
NO.200HI023
CIVIL TERM
v.
JOHN S. HEIGES
CIVIL ACTION - LAW
Defendant
DEFENDANT'S ANSWER TO
PLAINTIFF'S MOTION TO COMPEL
AND NOW, COMES, the Defendant, John S. Heiges, by and through his counsel, Peter
J. Russo, Esquire, and aver the following:
I. - 6. Admitted.
7. Admitted in part and denied in part. Plaintiff has also sought information on Defendant's
net worth, location of bank accounts, accounts or debts payable, nature and location of all
personal assets.
8. Denied. The documents requested are, in essence, post judgment requests to aid in
execution of a judgment.
9. Admitted.
10. Denied. The matter before the court is whether a contract was breached by failing to pay
a sum certain as a result of a divorce action. Plaintiff seeks to compel Defendant to disclose
the nature and location of every personal assets and debt. The only question before the court
is whether the terms of a contract were breached. The Defendant's net worth is far afield
from the merits of the underlying case and unlikely to produce relevant and admissible
evidence.
II. Admitted in part and denied in part. It is admitted that Plaintiff has asserted such a claim
but the existence of any such agreement is specifically denied.
12. Denied. Defendant is unaware of what information Plaintiff has accessed. By way of
further response, Plaintiff asserts the right to increase in value and seeks information thereon
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yet the information Plaintiff seeks is not likely to assist in proving or disproving the right to
an increase in the value of Defendant' s pension.
13. Admitted.
14. Denied. The matter before the court is whether a contract was breached by failing to pay
a sum certain as a result of a divorce action. Plaintiff seeks to compel Defendant to disclose
the nature and location of every personal assets and debt. The only question before the court
is whether the terms of a contract were breached. The Defendant's net worth is far afield
from the merits of the underlying case and unlikely to produce relevant and admissible
evidence.
15. Denied. Plaintiffs claim is based in a failure to pay an obligation. The obligation was
paid but rejected and Plaintiff read additional terms into the signed agreement. The claim is
not the existence of assets or the increase on the assets but rather the existence of terms
which to not appear in the written contract.
16. Denied. Pennsylvania Rule of Civil Procedure 4000.1 (b) speaks for itself and any
interpretational gloss applied thereon by Plaintiff is denied.
17. Denied. Plaintiffs claim is based in a failure to pay an obligation. The obligation was
paid but rejected and Plaintiff read additional terms into the signed agreement. The claim is
not the existence of assets or the increase on the assets but rather the existence of terms
which to not appear in the written contract therefore Defendant's objection is well founded.
18. Denied. Defendant respectfully requests that this Honorable Court deny Plaintiffs
request to compel discovery.
Respectfully submitted,
~~~~
Peter J. Russo
5010 E. Trindle Road
Suite 200
Mechanicsburg, P A 17050
(717) 591-1755
Dated: tJ11/ I 0 \
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MARYE. TAYLOR
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYL VANIA
Plaintiff
: NO. 2001-11023
CIVIL TERM
v.
JOHN S. HEIGES
CIVIL ACTION - LAW
Defendant
CERTIFICATE OF SERVICE
I, Peter J. Russo, hereby certify that I am on this day serving a copy of the
foregoing document upon the person(s) and in the matter indicated below:
Service by First-Class Mail, Postage Prepaid, and addressed as follows:
Melissa A. Swauger, Esquire
P.O. Box 88
Harrisburg, P A 17108
Date: s-ltdo/
C. -Qt~::) 2---
Peter J. Russo, Esquire
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MARY E. TAYLOR,
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
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V.
JOHN S. HEIGES,
Defendant 01-1023 CIVIL TERM
IN RE: MOTION TO COMPEL
ORDER OF COURT
AND NOW, this 7th day of June, 2001, the Court being
satisfied that the propounded interrogatories are overbroad, and
that the objection thereto is otherwise well taken, the motion to
compel is denied. This order is entered without prejudice to the
Plaintiff to repropound more specific interrogatories.
The motion to compel with respect to the production
of documents is granted as to requests 5, 6 and 7; and the
Defendant is directed to respond thereto. The remaining
objections of the Defendant to the Plaintiff's first request for
production of documents are sustained.
By the Court,
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Melissa A. Swauger, Esquire
For the Plaintiff
AtL
Peter Russo, Esquire
For the Defendant
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MARYE. TAYLOR,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY, PENNSYLVANIA
v.
: No. 01-1023 Civil
JOHN S. HEIGES,
Defendant
Civil Action - Law
CERTIFICATE PREREOUlSITE TO SERVE
SUBPOENA PURSUANT TO RULE 4009.22
As a prerequisite to service of a Subpoena for documents and things pursuant to Rule
4009.22, Plaintiff certifies that:
(I) a Notice ofIntent to Serve Subpoena with a copy of the Subpoena attached thereto
was mailed or delivered to each party;
(2) a copy of the Notice ofIntent, including the proposed Subpoena, is attached to this
Certificate;
(3) no objection to the Subpoena has been received;
(4) the Subpoena which will be served is identical to the Subpoena which is attached to
the Notice ofIntent to Serve the Subpoena; and
(5) Defendant offers no objection if Plaintiff issues the Subpoena upon Keen Transport,
Inc.
SHUMAKER WILLIAMS, P.C.
Dated:-"l \ ctl <\ (
BY.~ OL~
Laurence W. Dague, J.D. #19715
Melissa A. Swauger, J.D. #82382
P.O. Box 88
Harrisburg, P A 171 08
(717) 763-1121
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MARYE. TAYLOR,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY, PENNSYLVANIA
v.
: No. 01-1023 Civil
JOHN S. HEIGES,
Defendant
Civil Action - Law
NOTICE OF INTENT TO SERVE SUBPOENA TO PRODUCE DOCUMENTS
AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21
Plaintiff, Mary E. Taylor, intends to serve a Subpoena identical to the one that is attached to
this Notice. You have twenty (20) days from the date listed below in which to file of record and
serve upon the undersigned an objection to the Subpoena. If no objection is made, the Subpoena
may be served.
SHUMAKER WILLIAMS, P.C.
Dated: 7 J .l-/u I
By fY\o~ 0... ~(W~
Laurence W. Dague, I.D. #19715 ~
Melissa A. Swauger, I.D. #82382
P.O. Box 88
Harrisburg, PA 17108
(717) 763-1121
Attorneys for Plaintiff
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COMMONWEALTH OF PENNSYLVANIA'
COUNTY OF CUMBERLAND
MARY E. TAYLOR,
Plaintiff
v.
File No. 01-1 023 Civil
JOHN S. HEIGES,
Defendant
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
TO: Plan Administrator. Keen Transport. Inc.
(Name of Person or Entity)
Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following
documents or things:
See attached Exhibit "A."
atShurnaker Williams, P.C., 3425 Simpson Ferry Road, Camp Hill, PA 17011
(Address)
You may deliver or maillegibJe copies of the documents or produce things requested by this subpoena, together
with the certificate of compliance, to the party making this request at the address listed above. You have the right
to seek in advance the reasonable cost of preparing the copies or producing the things sought.
If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service,
the party serving this subpoena may seek a court order compelling you to comply with it.
THIS SUSPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
Name Melissa A. swauger
Shumaker Williams r P. C.
Address: P,O. Box 88
Harrisburg, PA 171 08
Telephone: (717) 763-1121
Supreme Court ID # 82382
Attorney For: P:j.aintiff
Date:
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Seal of the Court
Deputy
(Eft. 7/97)
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EXHIBIT "A"
Any and all documents relating to or reflecting the earnings attributable to John S. Heiges'
Pension Plan with Keen Transport, Inc. from 1990 until date of distribution.
: 132862
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CERTIFICATE OF SERVICE
I, Melissa A. Swauger, Esquire, of the law firm of Shumaker Williams, P .c., hereby certify
that I served a true and correct copy of the foregoing Notice of Intent to Serve Subpoena to Produce
Documents and Things for Discovery Pursuant to Rule 4009.21 on this date by depositing a copy
ofthe same in the possession of the United States mail, fIrst-class, postage prepaid, addressed as
follows:
Peter Russo, Esquire
5010 Trindle Road
Mechanicsburg, PA 17055
SHUMAKER WILLIAMS,P.C.
Dated: it d- \0 \
By ~ C1-~
Melissa A. Swauger
P.O. Box 88
Harrisburg, P A 17108
(717)763-1121
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CERTIFICATE OF SERVICE
I, Melissa A. Swauger, Esquire, of the law firm ofShurnaker Williams, P.C., hereby certify
that I served a true and correct copy of the foregoing Certificate Prerequisite to Serve Subpoena
Pursuant to Rule 4009.22 on this date by depositing a copy of the same in the possession of the
United States mail, first-class, postage prepaid, addressed as follows:
Peter Russo, Esquire
5010 Trindle Road
Mechanicsburg, P A 17055
SHUMAKER WILLIAMS, P.c.
D'redr4Cf /0 I
By
~U~~(JJJ~
Melissa A. Swauger
P.O. Box 88
Harrisburg, P A 171 08
(717)763-1121
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MARYE. TAYLOR,
Plaintiff
IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY, PENNSYL VANIA
v.
: No. 01-1023 Civil
JOHN S. HEIGES,
Defendant
Civil Action - Law
BRIEF IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
I. Procedural Historv
On February 21, 2001, Plaintiff filed a Complaint in the above-captioned matter. In
Plaintiffs Complaint, she stated a breach of contract cause of action in Count I and unjust
enrichment cause of action in Count II. On March 19,2001, Plaintiff forwarded an Important Notice
to Defendant for his failure to take any action in the above-captioned case. On March 22, 2001,
Defendant filed an Answer with New Matter. On April 9, 2001, Plaintiff filed a Reply to Answer
and New Matter of Defendant.
On February 23, 2001, Plaintiff served Defendant with a First Set ofInterrogatories and
Request for Production of Documents. On April 12, 200 I, Plaintiff received Defendant's Objections
to Plaintiffs Interrogatories and Request for Production of Documents. On May 3, 2001, Plaintiff
filed a Motion to Compel and Notice ofIntentto Serve Subpoena to Produce Documents and Things
for Discovery Pursuant to Rule 4009.21.
By Order dated May 8, 2001, this Honorable Court scheduled a brief argument for June 7,
2001 on Plaintiffs Motion to Compel. On May 14,2001, Plaintiff received Defendant's Answer
to Plaintiffs Motion to Compel. In addition, Plaintiff received Defendant's Objection to Plaintiffs
Notice ofIntent to Serve Subpoena upon Keen Transport, Inc.
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Oral argument was conducted on June 7, 2001 with regard to Plaintiff's Motion to Compel.
By Order dated June 7, 200 I, this Honorable Court denied Plaintiff's Motion to Compel with regard
to Plaintiff's Interrogatories, but allowed Plaintiff to serve more specific Interrogatories upon
Defendant, and granted Plaintiff's Motion to Compel with respect to paragraphs 5, 6, and 7 of
Plaintiff's Request for Production of Documents.
On June 14, 2001, Plaintiff served Defendant with Restated Interrogatories. On June 29,
2001, Plaintiff received Defendant's Objections and Responses to Plaintiff s Restated Interrogatories
and Defendant's Answers to paragraph 5 and 6 of Plaintiffs Request for Production of Documents.
In the aforementioned Answers, Defendant agreed that he would not object to Plaintiff subpoenaing
certain documentation from Keen Transport, Inc.
On July 2, 200 I, Plaintiff served Defendant with a Notice of Intent to Serve Subpoena to
Produce Documents and Things for Discovery Pursuant to Rule 4009.21, which was not objected
to by Defendant. On July 9, 2001, Plaintiff filed a Certificate Prerequisite to Serve Subpoena
Pursuant to Rule 4009.22 and served a Subpoena to Produce Documents and Things for Discovery
Pursuant to Rule 4009.22 upon Keen Transport, Inc. To date, Plaintiff has not received documents
responsive to the aforementioned Subpoena from Keen Transport, Inc. Therefore, discovery
responses are still outstanding and discovery is not complete in the above-captioned matter.
On May 4, 2001, Defendant filed a Motion for Summary Judgment and Praecipe for Listing
Case for Argument. Defendant did not, however, notify Plaintiff within two days that the matter had
been listed for argument. Plaintiff did not receive the Praecipe for Listing Case for Argument until
May 10, 2001.
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On July 17, 200 I, Plaintiff received Defendant's Memorandum of Law in Support of his
Motion for Summary Judgment, which was dated July 16, 2001. Defendant's Memorandum of Law
in Support of his Motion for Summary Judgment was not timely filed in accordance with C.C.R.P.
210-6. Oral argument is scheduled for July 25, 2001. Pursuant to Cumberland County Rule of
Procedure 210-8, argument may be denied to Defendant's counsel for failure to comply with
C.C.R.P. 210-6. Plaintiff timely submits this Brief in Opposition to Defendant's Motion to
Summary Judgment pursuant to C.C.R.P. 210-6.
II. Counter-Statement of Facts
Plaintiff and Defendant entered into a written contract entitled "Marital Agreement" and
dated November 6, 1990. A true and correct copy is attached hereto as Exhibit "A." Paragraph 14
of the Marital Agreement provides:
14. PENSION PLAN
Husband is employed by KEEN TRANSPORT, INC. and presently has a
pension and Husband agrees to a QDRO for $17,500.
Pursuant to paragraph 14 of the Marital Agreement, Defendant agreed in 1990 that $17,500 of his
principal in the Keen Transport, Inc. Pension Plan (hereinafter "Pension Plan") would be segregated
for Plaintiff. See Declaration ofMarv E. Tavlor,' ~3, which is attached hereto as Exhibit "B," and
Plaintiffs Complaint, p. 2.
'The facts stated in the Declaration of Mary E. Taylor are exactly the same facts stated in
the Cornplaint. The facts stated in both Plaintiffs Complaint and Declaration were verified by
Mary E. Taylor. She has been out oftown and cannot physically execute the signature page of
the Declaration until Monday, July 23, 2001. Therefore, Plaintiff's counsel will substitute the
verification for the signature page.
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Paragraph 19 of the Marital Agreement provides:
19. WAIVER OR MODIFICATION TO BE IN WRITING
No modification or waiver of any of the terms hereof shall be valid unless in
writing and signed by both Parties and no waiver of any breach hereof or default
hereunder shall be deemed a waiver of the subsequent default of the same or similar
nature.
Paragraph 14 of the Marital Agreement was neither modified nor waived by either Plaintiff or
ii
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Defendant, which is an undisputed fact. See Plaintiff's Comolaint, p.2 and Defendant's Answer to
Paragraph 20 of the Marital Agreement provides:
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Plaintiff's Comolaint and New Matter, p.l.
20. MUTUAL COOPERATION
[sic] Each party shall, at any time and from time to time hereafter, take any and all
"
II
steps and execute, acknowledge and deliver to the other Party, any and all further
instruments and/or documents that the other Party may reasonably require for the
purpose of giving full force and effect to the provisions of this Agreement.
Defendant was an employee of Keen Transport, Inc. (hereinafter "Keen Transport") in 1990
until his retirement in February, 2000. See Plaintiffs COffiJ;llaint, p.2 and Defendant's Answer to
Plaintiff's Cornolaint and New Matter, p.2. Defendant contends that a Qualified Domestic Relations
Order in the amount of$l7,500.00 was never received by Keen Transport.2 See Affidavit of Shirley
2Plaintiff is unable to dispute this fact at this time because she has subpoenaed such
information from Keen Transport, Inc., but Keen Transport, Inc. has requested until August 13,
2001 to provide such documentation to Plaintiff.
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Carlisle, ~6-7, which is attached as Exhibit "D" to Defendant's Motion for Summary Judgment.
Pursuant to the Marital Agreement, when Defendant retired, Plaintiff was entitled to $17,500 plus
the investment growth that such an amount earned in Defendant's Pension Plan from 1990 until the
date of distribution, which fact is disputed by Defendant. See Declaration ofMarv E. Tavlor, ~4,
Plaintiffs Complaint, pp. 2-3, and Motion for Summarv Judgment, ~~7, 10.
To date, Defendant has failed to pay Plaintiff $17,500 plus the investment growth that such
an amount earned in Defendant's Pension Plan from 1990 until the date of distribution. See
Defendant's Motion for Summarv Judgment, ~~1 0, 12-15. Defendant received $172, 976.27 from
his Pension Plan when he retired from Keen Transport. See Defendant's Obiections and Responses
to Plaintiff's Re-Stated Interrogatories, ~l, which is attached hereto as Exhibit "C." Accordingly,
Defendant has breached the Marital Agreement by failing to pay $17,500 plus the investment growth
that such an amount earned in Defendant's Pension Plan from 1990 until February, 2000. See
Declaration ofMarv E. Taylor, ~4-5 and Plaintiffs Complaint, pp. 2-3.
The following facts are not in dispute. On or about November 24, 2000, Defendant sent
Plaintiff a check in the amount of $17,500 with the notation "divorce settlement" and an
accompanying letter stating that $17,500 is the amount he owed in the divorce settlement. See
Declaration ofMarv E. Taylor, ~7 and Plaintiffs Complaint, p. 3. By letter dated February 12, 2001,
Plaintiff returned Defendant's check in the amount of$17,500. See Declaration ofMarv E. Tavlor,
~7, Plaintiff's Complaint, p.3, and Defendant's Motion for Summarv Judgment, ~8. Plaintiff does
not accept Defendant's check in the amount of $17,500 as satisfaction of her claims under the
Marital Agreement. See Declaration of Marv E. Tavlor, ~7, Plaintiff's Complaint, p. 3, and
Defendant's Motion for Summarv Judgment, ~8.
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III. Counter-Statement of Issues
A. Whether Defendant failed to prove that there is no genuine issue of material fact and
he is entitled to judgment as a matter of law with regard to Count I of Plaintiff's Complaint?
Suggested Answer: Yes.
B. Whether Defendant failed to prove that there is no genuine issue of material facts and
he is entitled to judgment as a matter oflaw with regard to Count II of Plaintiffs Complaint?
Suggested Answer: Yes.
IV. Ar!!Ument
A. Standard for summarv iudement.
Pennsylvania Rule of Civil Procedure 1035.2 provides that:
any party rnay move for summary judgment in whole or in part as a rnatter oflaw (1)
whenever there is no genuine issue of any material fact as to a necessary element of
the cause of action or defense which could be established by additional discovery or
expert report, or (2) if, after the cornpletion of discovery relevant to the rnotion, ...
an adverse party who will bear the burden of proof at trial ha.s failed to produce
evidence of facts essential to the cause of action or defense which in a jury trial
would require the issues to be submitted to ajury.
Pa.R.Civ.P. 1035.2. Summary judgment is properly granted where "the pleadings, depositions,
answers to interrogatories, an admission on file, together with Affidavits, if any, show that there was
no genuine issue of material fact and the moving party is entitled to judgment as a matter oflaw."
Pennsvlvania State Univ. v. County of Centre, 532 Pa. 142, 144-145,615 A.2d 303,304 (1992). A
fact is material ifit directly affects the disposition of a case. Allen v. Colautti, 53 Pa. Cornmw. 392,
_,417 A.2d 1303, 1307 (1980).
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Since the moving party has the burden of proving that no genuine issues exist as to any
material fact, the record must be viewed "in the light rnost favorable to the nonmoving party, and
all doubts to the existence of a genuine issue of material fact must be resolved against the moving
party." Id. In determining whether the moving party has met his or burden of proving that no
genuine issue of material fact exists, all well-pleaded facts in the nonmoving party's pleadings are
accepted as true and that party is given the benefit of all reasonable inferences to be drawn
therefrom. Melat v. Melat, 411 Pa. Super. 647, _, 602 A.2d 380, 384 (1992). Summary judgment
may be entered "only in those cases where the right is clear and free frorn doubt." Pennsvlvania
State Univ., 615 A.2d at 304. All doubts as to the existence of a genuine issue of material fact must
be resolved against the moving party. Penn Center House. Inc. v. Hoffman, 520 Pa. 171, _,553
A.2d 900, 903 (1989).
In determining the existence or non-existence of a genuine issue of material fact, courts are
bound to adhere to the Nanty-Glo Rule, which states that "'[t]estimonial affidavits of the moving
party or his witnesses, not documentary, even if uncontradicted, will not afford sufficient basis for
the entry of summary judgment, since the credibility of the testimony is still a matter for the jury. '"
Id. (quoting Goodrich-Amram 2d, Vol. 4, ~1035(b) at pp. 434-35). In Nantv-G!o v. American
Surety Co., 309 Pa. 236, 163 A. 523 (1932), the Supreme Court held that a court may not summarily
enter a judgment where the evidence depends on oral testimony. Id. at 524.
'However clear and indisputable may be the proofwhen it depends on oral testimony,
it is nevertheless the province of the jury to decide, under instructions from the court,
as to the law applicable to the facts, and subject to the salutary power of the court to
award a new trial if they deem the verdict contrary to the weight of the evidence. '
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Id. (~1Uoting Reel v. Elder, 62 Pa. 308). Trial by testimonial affidavit is prohibited and testimonial
affidavit will not sustain summary judgment. Curran v. Philadelphia Newsoaoers. Inc., 497 Pa. 163,
_, 439 A.2d 652, 662 (1981), aooeal denied, 522 Pa. 576, 559 A.2d 37 (1989). Testimonial
affidavits ofthe moving party without supporting documents, are insufficient to support motion for
summary judgment. Kniaz v. Benton Borough, 164 Pa. Commw. 109, _,642 A.2d 551,553
(1994).
B. Defendant is not entitled to summary iudgment as a matter of law because there are
genuine issues of material fact with regard to Count I of Plaintiff's ComDlaint and
Defendant relies solely UDon testimonial affidavits as evidence that he is entitled to
summary iudgment.
In Count I of Plaintiff's Complaint, she stated a breach of contract cause of action.
Specifically, Defendant breached the Marital Agreement by failing to pay Plaintiff$17,500 plus the
investment growth that such an amount earned in Defendant's Pension Plan from 1990 until the date
of distribution. See Plaintiffs' Comolaint, p.3. In addition, Defendant breached the Marital
Agreement by failing to effectuate the intent of the Marital Agreernent, which was that $17,500
would be segregated in Defendant's Pension Plan for Plaintiff and said amount along with its
investment growth would be transferred to Plaintiff upon Defendant's retirement. See Plaintiffs'
Comolaint, p.4.
Summary Judgment is premature because Plaintiff is not sure whether any money was
segregated for her in Defendant's Pension Plan. Plaintiffhas been unable to obtain such information
from Keen Transport, Inc. because Defendant objected to Plaintiff s Subpoenaing such information.
In addition, Plaintiff is unaware of the amount by which $17,500 Pension Plan principal grew
because neither Keen Transport nor Defendant provided Plaintiff with an accounting of said funds.
8
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Plaintiff served a Subpoena upon Keen Transport on July II, 200 I requesting such documentation.
A true and correct copy of the Subpoena is attached hereto as Exhibit "D." Keen Transport has
requested until August 13,2001 to provide the subpoenaed documentation to Plaintiff. Again,
summary judgment is premature at this point.
A marital agreement is a contract subject to contract law. Purdv v. Purdv, 715 A.2d 473,
475 (pa. Super. 1998). When a written contract is clear and unequivocal, its meaning must be
determined by its contents alone. East Crossroads Center. Inc. v. Mellon-Stewart Co., 416 Pa. 229,
230,205 A.2d 865,866 (1965). In constructing any contract, certain principles must guide the court:
(a) if there is any doubt as to the meaning of a term of a contract, such term should
'receive a reasonable construction and one that will accord with the intention of the
parties; and, in order to ascertain their intention, the court must look at the
circumstances under which the [contract] was made;' (b) in constructing a contract
we seek to ascertain what the parties intended and, in so doing, we consider the
circumstances, the situation of the parties, the objects they have in mind and the
nature of the subject matter of the contract; (c) 'However broad may be the apparent
terms of the agreement, it extends only to those things concerning which the parties
intended the contract, and the subject-matter of their negotiations may affect the
meaning of the words they employ, especially if, in connection with the subject-
matter, the conventional interpretation would give an unreasonable or absurd result.'
United Refining: Co. v. Jenkins, 410 Pa. 126, 137-38, 189 A.2d 574, 580 (I 963)(citations omitted).
Under Pennsylvania law, ambiguous writings are interpreted by the fact finder and not by the
court. Broker Title Ins. Co.. Inc, v. St. Paul Fire & Marine Ins. Co., 610 F.2d 1174, 1178 (3d Cir.
1979). Under the "four corners" approach, the Court views whether or not the written words in the
contract are ambiguous. Mellon Bank. N.A. v. AetnaBusinessCredit.Inc., 619F.2d 1001, 1011 (3d
Cir. 1980). An alternative approach that is in accord with practice in the Pennsylvania courts is for
the judge to consider the words in the contract, the alternative meaning suggested by counsel, and
the nature of the objective evidence to be offered in support of that meaning. Id. If a reasonable
9
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alternative interpretation is suggested, objective evidence in support of that interpretation should be
considered by the fact finder. Id. See Corbin on Contracts 9542. A contract is deemed ambiguous
ifit is reasonably susceptible of different constructions and capable of being understood in more than
one sense. Purdv v. Purdy, 715 A.2d 473,475 (Pa. Super. 1998).
The cardinal rule in the interpretation of a contract is to ascertain the intention of the parties
and to give effect to that intention. Price v. Confair, 366 Pa. 538, _,79 A.2d 224, 226 (1951).
Where any doubt or ambiguity exists as to the meaning of the contract or terms of grant, they should
receive a reasonable construction and one that will accord with the parties' intention; to ascertain
their intention, the court must look at circumstances under which the grant was made. Hidman v.
Farren, 353 Pa. 33, _,44 A.2d 241, 242 (1945).
Paragraph 14 of the Marital Agreement provides "Husband is employed by KEEN
TRANSPORT, INC. and presently has a pension and Husband agrees to a QDRO for $17,500."
Defendant alleges that paragraph 14 of the Marital Agreement states that he would pay Plaintiff
$17,500. See Defendant's Motion for Summary Judgment, "if12. Plaintiff believes, however, that
pursuant to paragraph 14 ofthe Marital Agreement, Defendant agreed in 1990 that $17,500 of his
principal in Defendant's Pension Plan would be segregated for Plaintiff. Declaration ofMarv E.
Tavlor, "if3 and Plaintiff's Comolaint, p. 2. Therefore, Plaintiff would receive $17,500 plus the
investment growth that that amount collected from 1990 until date of distribution. See Declaration
ofMarv E. Tavlor,"if4 and Plaintiff's Comolaint, p. 2. Moreover, the Marital Agreement is silent
with regard to who would file the QDRO. Thus, paragraph 14 of the Marital Agreement is
ambiguous and susceptible to two different interpretations. Such interpretation is an issue for the
fact finder to determine.
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It is not reasonable to infer that Plaintiff was only entitled to $17,500 based upon paragraph
14 of the Marital Agreement. If Plaintiff only wanted $17,500 from Defendant, she would have had
Defendant pay her $17,500 upon execution of the Marital Agreement and not wait until Defendant
retired from Keen Transport, Inc. to collect the $17,500. Furthermore, Plaintiff is not trying to
rewrite the contract to add that she is entitled to interest. A reasonable inference of paragraph 14 is
that she is entitled to the investment growth that $17,500 would accumulate from the date of
segregation until retirement.
A fact finder rnay reasonably infer that Defendant was only supposed to pay Plaintiff$17 ,500
upon retirement. A fact finder may also infer, however, that Plaintiff is entitled to $17,500 plus the
investment growth that $17,500 earned in Defendant's Pension Plan from 1990 until date of
distribution. Given this potential scenario, Defendant is not entitled to summary judgment on Count
I of Plaintiff s Complaint. The fact finder should weigh the credibility of Defendant' s testimony and
Plaintiff's testimony. This Honorable Court should not grant Defendant's Motion for Summary
Judgment based solely upon testimonial affidavits. In addition, because the language of the contract
is ambiguous, it is up to the jury to resolve the ambiguous terms and determine the parties' intent.
Accordingly, Defendant has not met his burden of proving that there is no genuine issue of material
fact and that he is entitled to judgment as a matter of law.
C. Defendant is not entitled to summary jud!!ment as a matter of law because there are
!!enuine issues of material fact with re!!ard to Count II of PlaintiWs ComDlaint and
Defendant relies solely UDon testimonial affidavits as evidence that he is entitled to
summarv iudl![ment.
In Count II of iPlaintiff s Complaint, she stated a cause of action for unjust enrichment.
Specifically, Plaintiff . avers that she conferred a benefit upon Defendant because rather than
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Defendant paying Plaintiff $17,500 when they executed the Marital Agreement, both Plaintiff and
Defendant agreed that $17,500 of Defendant's Pension Plan principal would be segregated for
Plaintiff. See Plaintiff's Complaint, p. 4. In addition, Defendant appreciated such benefit because
he received a larger pension from Keen Transport and the $17,500 invested in Defendant's Pension
Plan from 1990 until date of distribution earned money that the Defendant collected when he retired
from Keen Transport. See Defendant's Obiections and Responses to Plaintiff's Re-Stated
Interrogatories, ~1. In fact, Defendant collected $172,976.27 from his Pension Plan at Keen
Transport, Inc. See Defendant's Obiections and Responses to Plaintiff's Re-Stated Interrogatories,
~l. Plaintiff demanded that Defendant give her $17,500 plus the investment growth that that amount
eamed in Defendant's Pension Plan from 1990 until date of distribution, but Defendant refused and
will only provide Plaintiff with $17,500. See Affidavit of John S. Heiges, ~~5-6, 9-10. Ele:lIlillls
necessary to prove unjust enrichment include "(1) benefits conferred on defendant by plaintiff; (2)
appreciation of such benefits by defendant; and (3) acceptance and retention of such benefits under
such circumstances that would be inequitable for defendant to retain benefit without payment of
value." Mitchell v. Moore, 729 A.2d 1200, 1203-04 (pa. Super. 1999), appeal denied, 561 Pa. 698,
751 A.2d 192 (2000). In determining whether or not unjust enrichment applies, the Court's focus
is on "not on the intention of the parties, but rather on whether the defendant has been unjustly
enriched." Id. at 1204.
Had Plaintiff's $17,500 not remained in Defendant's Pension Plan from 1990 until date of
distribution, Defendant's pension would have been less than what he received when he retired in
February, 2000. Therefore, a benefit was conferred upon 'Defendant because he received the
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investment growth that the $17,500 eamed in his Pension Plan frorn 1990 until date of distribution.
Defendant is willing to pay Plaintiff$17 ,500, but notthe investment growth that this amount earned
in his Pension Plan from 1990 until date of distribution. Whether Defendant was unjustly enriched
is a material fact that is in dispute.
Defendant knew that he was not entitled to retain the investment growth that the $17,500
made in his Pension Plan from 1990 until date of distribution. Paragraph 14 of the Marital
Agreement provides that the Husband presently has a pension with Keen Transport, Inc. and agrees
to a QDRO for $17,500. Accordingly, Defendant agreed in 1990 that $17,500 of his principal in the
Pension Plan would be segregated for Plaintiff. The Marital Agreement does not state that Plaintiff
agrees to allow Defendant to receive the investment growth that the $17,500 accumulated in
Defendant's Pension Plan.
A fact fmder may reasonably infer that Defendant has been unjustly enriched by collecting
the investment growth that the $17,500 made in his Pension Plan frorn 1990 until date of
distribution. A fact finder may also, however, infer that Defendant's retention of such investment
growth is not inequitable. Given this potential scenario, Defendant is not entitled to summary
judgment on Count II of Plaintiffs Complaint. The fact finder should weigh the credibility of
Plaintiffs testimony and Defendant's testimony. This Honorable Court should not grant
Defendant's Motion for Summary Judgment based solely upon testimonial affidavits. Therefore,
Defendant has not met his burden of proving that no genuine issue of rnaterial fact exists and he is
entitled to judgment as a matter oflaw because a material fact is at dispute with regard to an essential
element of the cause of action of unjust enrichment.
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v. Conclusion
For the reasons set forth above, Plaintiff, Mary E. Taylor, respectfully requests that this
Honorable Court deny Defendant's Motion for Summary Judgment.
SHUMAKER WILLIAMS, P.C.
Dated: 7 ~ (e J
,-
By /1V~ OJ. ~~
LaUrence W. Dague, J.D. #1971 .
Melissa A. Swauger, J.D. #82382
P.O. Box 88
Harrisburg, P A 17108
(717) 763-1121
Attorneys for Plaintiff
: 133467
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AGREEMENT
AGREEMENT made this
(. ~ day of Al)t.t_r?v&' I 19901
by and between HARY E. BEJ!GES, ("WIFE") of 179 Simmons Road,
Mechanicsburg} Cumberland County, Pennsylvania, and JOHN S.
HEIGES, ("HUSBAND") of 17l} Sinunons Road, Mechanicsburg,
Cumberland County, Pennsylvania.
WITNESSETH,
WHEREAS, the Parties hereto are HUSBAND and WIFE, having
been married on April 12, 1959 at First United Methodist Church,
Mechanicsburg, Cumberland County, Pennsylvania. There were
two children of this marriage.
WHEREAS, diverse unhappy differences, disputes and difficulties
have arisen between the Parties and it is the intention of
HUSBAND and WIFE to live separate and apart for the rest of
their natural lives, and the Parties hereto are desirous of
setting fully and finally their respective financial and property
rights snd obligations ss between each other including, without
limitation by specification. the settling of all matter"
between them relating to the ownership and equitable distribution
of real and per"onal property; the aettling of all matters
between them reLating to the past, present and future support)
alimony and/or maintenance of WIFE by HUSBAND or of HUSBAND
I ~\t lH..~~. P.C.
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by WIFE; and in general, the settling of any and all claims
and possible claims by one against the other or against their
respective estates.
NOW, THEREFORE, in consi~eration of the premises and
of the mutual promises. covenants and undeTtakings hereinafter
set forth and for other good and valuable consideration, receipt
-"
of which is hereby acknowledged by each of the Parties
----
hereto, WIFE and HUSBAND, each intending to be legally bound
hereby, covenant and agree as follows:
1. AGREEMENT NOT A BAR TO DIVORCE PROCEEDINGS
This Agreement shall not be considered an affect or bar
the right of HUSBAND and WIFE' to an absolute divorce
on lawful grounds if such grounds now exist or shall hereafter
exist or to auch defense as may be available to either Party.
This Agreement is not intended to condone and shall not be
deemed to be a condonation on the part of either Party hereto
of any act or acts on the part of the other Party which have
occasioned the disputes or unhappy differences which have
occurred prior to or which may occur subsequent to the date
hereof. The Parties intend to secure a mutual consent,
No-Fault Divorce pursuant to the terms of Section 201(c)
of the Divorce Code of 1980 amended.
2. EFFECT OF DIVORCE DECREE
The Parties agree that unless otherwise specifically
provided herein, this Agreeme~t shall continue in full force
-2-
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and effect after such time as a final Decree in Div9rce may
, .
be entered with respect to the Parties.
J. AGREEMENT TO BE INCORPORATED IN DIVORCE DECREE
The Parties agree that the terms of this Agreement shall
be incorporated but not merged into any Divorce Decree which
may be entered with respect to them. The Parties further
agree that the Court of Common Pleas which may enter such
divorce decree shall retain continuing jurisdiction over the
Parties and the subject matter of the Agreement for the purpose
of enforcement of any of the provisions thereof.
4. DATE OF EXECUTION
The "date of execution" or "execution date" of this Agreement
shall be defined as the date of execution by the Party last
executing this Agreement.
S. DISTRIBUTION DATE
The transfer of property, funds and/or documents provided
for herein shall only take place on the "distriblltion date"
which shall be defined as the date of execution of this Agreement
unless otherwise specified herein.
6. ADVICE OF COUNSEL
WIFE and HUSBAND declare that they have each had s full
and fair opportunity to obtain independent legal advice of
counsel of their selection; that WIFE has been independently
represented by counsel and that HUSBAND. cognizant of his
right to legal representation, declares that it is his express,
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voluntary 'and knowing intantion not to avail himself of hia
HUSBAND further declares that he is executing this Agreement
-_.~
right to counsel and chooses in~tead to represent himself
with respect to the preparation and execution of this Agreement.
freely and voluntarily, having obtained such knowledge and
disclosure of WIFE'S assets.
7. PERSONAL RIGHTS
HUSBAND and WIFE may and shall, at all times hereafter,
live separate and apart, They shall be free from any control,
restraint, interference or authority, direct Or indirect,
by the other in all respect aa fully as if they were unmarried.
They may reaide at such place or places as they may select.
Each may, for his or her separate use of benefit, conduct,
carryon or engage in any business, occupation, profession
or employment which to him or her may seem advisable. HUSBAND
and WIFE shall not molest, harass, disturb or malign each
other or the respective families of each other nor compel
or attempt to compel the other to cohabit or dwell by any
means or in any manner whatsoever with him or her.
8. MUTUAL RELEASES
HUSBAND and WIFE each do hereby mutually remise, release,
quit-claim and forever discharge the other and the estate
of such other, for all time to come, and for all purposes
whatsoever, of and from any and all rights, title and interests,
of claims in or against the property (including income and
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gain from property hereafter accruing) of the other or against
the estate of such other, of whatever nature and wheresoever
situate, which he or she now has or at any time hereafter
may have against such other, the estate of such other or any
part thereof. whether arising Qut of any former acts, contracts)
------.---
engagements or liabilities of such other or by way of dower
or curtesy, or claims in the nature of dower or curtesy or
widow's or widower's rights, family exemption or similar allowance,
~
or under the intestate laws, or the right to take against
the spouse's will; or the right to treat a lifetime conveyance
by the other as testamentary, or all other rights of a surviving
spouse to participate in 'a deceased spouse's estate, whether
arising under the laws of (a) the Commonwealth of Pennsylvsnis,
(b) State, Commonwealth or territory of the United States,
Or (c) any other country, or any rights which either Party
may have or at any time hereafter have fOr past, present or
future support or maintenance, alimony, pendente lite, counsel
fees, equitable distribution, costs or expenses, whether arising
as a result of the marital relation or otherWise, except,
and only except, all rights and agreements and obligations
of whatsoever nature arising or which may arise under this
Agreement or for the breach of any provision thereof. It
is the intention of KUSBAND and WIFE to give to each other
by the eXecution of this Agreement a full, complete and general
release with respect to any and all property of any kind or
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nature. real. personal or mixed. which, t.he'>other now o'Wns
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or may hereafter acquire, except and only except all right.
and agr~ements and obligations or whatsoever nature arising
or which may arise under this Agreement or for the breach
of any provision thereof.
-.-----
9. PERSONAL PROPERTY
HUSBAND and WIFE hereby acknowledge that all the tangible
personal property situate in the marital home at 179 Simmons
Road, Mechanicsburg, Cumberland County, Pennsylvania, which
includes, but is not limited to, jewelry, clothes, furniture,
rugs, carpets, household. equipment and appliances, tools,
pictures, books, works of art, and other personal property,
shall be the sole and exclusive property of the WIFE, with
the exception of the following items of personal property
which shall be the sole and exclusive property of the HUSBAND,
as follows:
(a) Fishing Equipment
(b) Tools
(c) Personal Clothing
(d) Any other items wife agrees are the HUSBAIiID'S
The Parties do hereby specifically waive, release, renoUnce
and forever abandon whatever claim, if any, he or she may
have with respect to the above items which shall become the
sole and separate property of the other, as set forth above.
10. KO'IOR VEHICLES
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With respect to the motor vehicle, HUSBAND and WIFE agree
as follows:
{al Any vehicles owned by HUSBAND and WIFE in their
own name presently shall become the sole and exclusive property
of their respective property of their owners free and clear
of all liens and encumbrances.
11. AFTER ACQUIRED PERSONAL PROPERTY
Each of the Parties shall hereafter own and enjoy, independently
of sny claims or right of the other, all items of personal
property. tangible or intangible, hereafter acquired by him
or her, with full power in him or her to dispose of same as
fully and effectively, in- all respects and for all purposes,
as though he or she were unmarried.
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The real property and improvements thereon, evidenced by Deed~ ~~
marked Exhibit "A" and Deed marked Exhibit "B" which are known ~i
12.
SALE OF REAL ES1ATE - DIVISION OF PROCEEDS
and numbered as 179 Simmons Road, Mechanicsburg, Cumberland County,
Pennsylvania shall be disposed of as follows:
1. Property (house and lot to be sold and proceeds divided)
(al Property to be listed for sale April 1, 1991
(b) If house and lot not sold by August 1, 1991, Wife to
pay Husband ~500. a month rent
(c) Wife to pay all expenses on house including taxes
electric
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13. REAL ESTATE TAXES
Not applicable.
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Kusband is emp~oyed by KEEN TRANSPORT INC. and present~y hes a
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pension and Husband agrees to a QDRO for $17.500.
LEGAL FEES ~~~ ~~
Wife agrees to pay all costs and ~; of this
15.
Benn p.e. and her attorney fees.
divorce to Wiley &
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16. WIFE'S DEBTS
WIFE represents and warrants to HUSBAND that since the
Parties marital separation, she has not contracted or incurred
any debt or liability for which HUSBAND or his estate might
be responsible and WIFE further represents and warrants to
HUSBAND that she will not contract or incur sny debt or liability
after the execution of this Agreement, for which HUSBAND or
his estate might be responsible. WIFE shall indemnify and
save harmless HUSBAND from any and all claims or demands made
against him by reason of debts Or obligations incurred by
her.
11. HUSBAND'S DEBTS
HUSBAND represents and warrants to WIFE that since the
Parties marital separation, he has not contracted or incurred
any debt or liability for which WIFE or her estate might be
responsible and HUSBAND further represents and warrants to
WIFE that he will not contract or incur any debt or liability
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estate might be responsible. HUSBAND shall indemnify an~
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save harmless WIFE from any and all claims or demands made
against her by reason of debts or obligations incurred by
him.
18. FINAL EQUITABLE DIVISION OF PROPERTY
The Parties agree that the division of all property set
forth in Agreement is equitable and in the event an action
in Divorce is commenced, both Parties relinquish the right
to divide said property in any manner not consistent with
the terms set forth herein. It ia further the intent, understanding
and agreement of the Parties that this Agreement ia a full,
final, complete and equitable property diviSion.
19. WAIVER OR MODIFICATION TO BE IN WRITING
No modification or waiver of any of the terma hereof
shall be valid unless in writing and signed by both Parties
and DO waiver of any breach hereof or default hereunder shall
be deemed a waiver of any subsequent default of the same or
similar nature.
20. MUTUAL COOPERATION
Each Party shall, at any time and from time to time hereafter,
take any and all steps and execute, acknowledge and deliver
to the other Farty, any and all further instruments and/or
~ocuments that the other Party may reasonably require for
the purpose of giving full force and effect to the provisions
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LAW OF PENNSYLVANIA APPLICA.BU'".",....
This' Agreement shall be construed in accordance with
the laws of the Comnonwealth of Pennsylvania.
22. AGREEMENT BINDING ON RElIlS
This Agreement shall be binding and shall inure to the
benefit of the Parties hereto and their respective heirs,
executors, administrators) successors) and assigns.
23. INTEGRATION
This A$reement constitutes the entire understanding of
the Parties and supersedes any and all prior ag~eements and
negotiations between them. There are no representations or
warranties other than those expressly let forth herein.
24. lIOIl-HERGER
It is the Parties intent that this Agreement does not
merge with the Divorce Decree, but rather, it continues to
have independent contractual significance and each Party maintains
their contractual remedies.
25. OTHER DOCIlMEHTA'IIOH
WIFE and HUSRAND covenant and agree that they will forthwith
(and within at least twenty (20) days after demand therefore),
execute any and all written instruments, assignments, releases,
satisfactions, deeds, notes, stock certificates, or such other
writings as may be necessary or desirable for the proper effectuation
of this Agreement, and as their respective counsel shall mutually
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a ffect'IVely' t'he terma of this Agreement.
26. NO WAIVER OF DEFAULT
This Agreement shall remain in full force and effect
unless and until terminated under and pursuant at the terms
of this Agreement. The failure of either Party to insist
upon strict performance of any of the provisions of this Agreement
shall in no way affect the right of such Party hereafter to
enfore the same, nor shall the waiver of any breach of any
subsequent default of the same or similar nature, nor shall
it be construed as a waiver of strict performance of any other
obligations herein.
27. SEVERABILITY
If any term, condition, clause or provision of this Agreement
I
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shall be determined or declared to be void or invalid in law
or otherwise, then only that term. condition, clause or provision
shall be stricken from this Agreement and in all other respects
this Agreement shall be valid and continue in full force,
effect and operation. Likewise, the failure of any Party
! i
to meet her or hi. obligations under anyone or more of the
Paragraphs herein, with the exception of the satisfactions
of the conditions precedent, shall in no way avoid or alter
the remaining obligation. of the Parties.
28. HEADINGS NOT PART OF AGREEMENT
Any heading preceding the text of the several paragraphs
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of' refel'tl'nce and shall no'~ cons~l~;"t;;'.." part of th1a Agreement
nor shall they affect its meaning, conB~~uction OT effect.
29. HUSBAND'S INHERITANCE
WIFE agrees that HUSBAND has heretofore inherited the
sum of Fifteen thousand ($15,000) Dollars from his family
which is currently in a Certificate of Deposit at Farmer's
Trust Company and WIFE agrees to release all of her right,
title and interest in and to this Certificate of Deposit upon
~~~n~ng this Agreement.
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IN WITNESS WHEREOP, the Partiea hereto have aet their
hands and seals the day and year first above written.
WITIIESS.
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MARY E. TAYLOR,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY, PENNSYL VANIA
v.
No. 01-1023 Civil
JOHN S. HEIGES,
Defendant
Civil Action - Law
DECLARATION OF MARY E. TAYLOR
I, Mary E. Taylor, aver the following:
1. I am the Plaintiff in the above-captioned matter.
2. I executed a Marital Agreernent dated November 6, 1990.
3. Pursuant to the Marital Agreement, both Defendant and I agreed that $17,500 of his
principal in the Keen Transport, Inc. Pension Plan would be segregated for me.
4. Pursuant to the Marital Agreement, both Defendant and I agreed that when Defendant
retired, I was entitled to $17,500 plus the investment growth that such an amount eamed in
Defendant's Pension Plan frorn Keen Transport, Inc. from 1990 until the date of distribution.
5. It was never my intention to only receive $17,500 when Defendant retired from Keen
Transport, Inc.
6. I learned that a Qualified Domestic Relations Order was not filed in the amount of
$17,500 after Defendant retired from Keen Transport, Inc.
7. My counsel returned Defendant's check in the amount of$17,500 with a notation of
"Divorce Settlement" because I do not accept Defendant's check in the amount of $17,500 as full
accord and satisfaction of my claims under the Marital Agreement.
Dated:
133477
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Mary E. Taylor
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VERIFICATION
The undersigned, Mary E. Taylor, hereby verifies and states that:
1. She is the Plaintiff in the within action;
2. The facts set forth in the foregoing Complaint are true and correct to the best of
her knowledge, information, and belief; and
3. She is aware that any false statements herein are made subject to the penalties of
18 Pa.C.S.A. 94904, relating to unsworn falsification to authorities.
~tJ~~)
Mary E. or
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Dated:'-1el#~ /,2, <2tXJ/
,
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MARY E. T AYLOR IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYL VANIA
Plaintiff
NO. 2001-11023
CIVIL TERM
v.
JOHN S. HEIGES
CIVIL ACTION - LAW
Defendant
DEFENDANT'S OBJECTIONS AND RESPONSES TO
PLAINTIFF'S RE-STATED INTERROGATORIES
AND NOW, COMES, the Defendant, John S. Heiges, by and through his counsel, Peter
1. Russo, Esquire, and aver the following:
1. John Heiges received $172,976.27 from Kean Transport.
2. Objection. As this matter is a contract action, it appears that this request is not reasonably
calculated to lead to the discovery of admissible evidence.
3. Once the $17,500.00 check made payable to Mary Taylor which was returned to Peter 1.
Russo's office, the check was voided and a check made payable to Peter J. Russo was drafted in
the amount of $17,500.00 which was deposited into an interest bearing account with Mary Taylor
as the beneficiary.
4. As noted, the $17,500.00 check made payable to Mary Taylor which was returned to
Peter J. Russo's office has been deposited into an interest bearing account with Allfirst Bank,
Market Street, Camp Hill, Pennsylvania. Account Number 09505-6371-2 carrying a balance of
$17,661.93 as of June 7, 2001.
Dated:~ d ~ 10 \
C;;:;;;:~h
Peter J. Russo
(717) 591-1755
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MARY E. TAYLOR IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
NO. 2001-11023
CIVIL TERM
v.
JOHN S. HEIGES
CIVIL ACTION - LAW
Defendant
VERIFICATION
I, Peter 1. Russo, counsel for Defendant being familiar with the facts and circumstances of
this matter, verifY that the statements made in the foregoing document are true and correct. I
understand that false statements made herein are subject to the penalties of 18 Pa.C.S. 94904
relating to unsworn falsification to authorities.
b{~hIQ\
DATE
c=v~
Peter J. Russo, Esquire
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MARYE. TAYLOR
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
NO. 2001-11023
CIVIL TERM
v.
JOHN S. HEIGES
CIVIL ACTION - LAW
Defendant
CERTIFICATE OF SERVICE
I, Peter J. Russo, hereby certifY that I am on this day serving a copy of the
foregoing document upon the person(s) and in the matter indicated below:
Service by First-Class Mail, Postage Prepaid, and addressed as follows:
Melissa A. Swauger, Esquire
P.O. Box 88
Harrisburg, P A 17108
Date:~
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Peter J. Russo
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COMMONWEALTH OF PENNSYLVANIA
'. '... COUNTY OF CUMBERLAND
"
l'iIARy E. TAYLOR,
Plaintiff
v.
File No. 01-1023 Civil
JOHN S. IlEIQS,
Defendant
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANTTO RULE 4009.22
TO: plan Administrator. Keen TransPOrt. Inc.
(Name 01 Person or Entity)
Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following
documents or things:
See attached Exhibit "A."
atShumaker Williams, p.e., 3425 Simpson Ferry Road, Camp Hill, PA 17011
(Address)
You may deliver or mail legible .copies of the documents or produce things requested by this subpoena, together
with the certificate of complianc~, to the party making this request at the address listed above. You have the right
to seek in advance the reasomlble cost of preparing the copies or producing the things sought.
If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service,
the party serving this subpoena may seek a court order compelling you to comply with it.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OFTHE FOLLOWING PERSON:
Name Melissa A. Swauger
Sh.umaker Williams, P.C.
Address: P.o. Box 88
Harrisburg, PA 171 08
Telephone: (717) 763-1121
Supreme Court ID It 82382
Attorney For: Plaintiff
Date:
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Deputy
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EXHIBIT "An
Any and all documents relating to 0[ reflecting the earnings attributable to John S. Heiges'
Pension Plan with Keen Transport, Inc. from 1990 until date of distribution.
: 132862
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CERTIFICATE OF SERVICE
I, Melissa A. Swauger, Esquire, of the law firm of Shumaker Williams, P.C., hereby certifY
that I served a true and correct copy ofthe foregoing Brief in Opposition to Defendant's Motion for
Summary Judgment on this date by depositing a copy of the same in the possession of the United
States mail, first-class, postage prepaid, addressed as follows:
Peter Russo, Esquire
5010 Trindle Road
Mechanicsburg, PA 17055
SHUMAKER WILLIAMS, P.c.
D&od'! YJ!U\
By
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Melissa A. Swauger
P.O. Box 88
Harrisburg, PA 17108
(717) 763-1121
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MARY E. TAYLOR,
Plaintiff
V.
JOHN S. HEIGES,
Defendant
,,"
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: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
BEFORE HESS. GUIDO. JJ.
"
: NO. 2001-1023 CIVIL TERM
ORDER OF COURT
day of AUGUST, 2001, defendant's Motion for
IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Melissa A. Swauger, Esquire
For the Plaintiff
Peter 1. Russo, Esquire
For the Defendant
:sld
Edward E. Guido, J. ~
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AND NOW, this
~~
Summary Judgment is DENIED.
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MARYE. TAYLOR,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
V.
JOHN S. HEIGES,
Defendant
: NO. 2001-1023 CIVIL TERM
IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
BEFORE HESS. GUIDO. JJ.
OPINION AND ORDER OF COURT
Before us is defendant's Motion for Summary Judgment. The parties have briefed and
argued their respective positions. This matter is now ready for disposition.
FACTUAL BACKGROUND
At issue is the interpretation of a marital settlement agreement executed by the
parties in 1990. Paragraph 14 of the agreement provides as follows:
PENSION PLAN
Husband is employed by KEEN TRANSPORT, INC. and
presently has a pension and Husband agrees to a QDRO for
$17,500.
The current controversy arose when defendant recently retired from Keen Transport, Inc.
He received $172,976.27 upon his retirement. He tendered $17,500 ofthat amount to
plaintiff in full satisfaction of his above quoted obligation.
Plaintiff argues that the parties agreed to segregate $17,500 of defendant's
pension at Keen Transport, Inc. for her use and benefit at the time the agreement was
executed. Therefore, she claims that she is entitled to any increase or decrease on that
portion. Defendant, on the other hand, claims that he never agreed to segregate any
.
.
1.1 ~,:,~ ~
2001 - 1023 CNIL TERM
portion of his pension. Rather, he merely agreed to transfer $17,500 to plaintiff upon her
request. I
DISCUSSION
Pa. Rule of Civil Procedure 1035.2 allows for the grant of summary judgment
when there is no genuine issue of material fact. In determining whether to grant a motion
for summary judgment, we must view the record in the light most favorable to the non-
moving party. Ertel v. Patriot News Companv, 544 Pa. 93, 674 A.2d 1038 (1996).
Summary judgment should only be granted in cases which are clear and free from doubt.
Hoffinan v. Brandywine Hospital, 443 Pa.super. 245, 661 A.2d 397 (1995).
Based upon our recitation of the factual background it would certainly appear that
there is a factual dispute which would preclude the grant of summary judgment.
However, defendant argues that the intention of the parties must be determined from the
four comers of the agreement. Since the agreement is silent as to the segregation of
funds, he contends that he is entitled to summary judgment as a matter oflaw. We
disagree.
Marital settlement agreements are to be interpreted in accordance with the general
rules of contract interpretation. Krizovenskv v. Krizovenskv, 425 Pa.Super. 204, 624
A.2d 638 (1993). As our Supreme Court has stated:
Determining the intention ofthe parties is a paramount
consideration in the interpretation of any contract. Robert
F. Felte, Inc. v. White, 451 Pa. 137,143,302 A.2d 347,351
(1973); Unit Vending Corp. v. Lacas, 410 Pa. 614, 617,190
A.2d 298,300 (1963). The intent of the parties is to be
ascertained from the document itself when the terms are
clear and unambiguous. Steuart v. McChesney, 498 Pa. 45,
48-49,444 A.2d 659,661 (1982); In re Estate of Breyer,
475 Pa. 108, 115,379 A.2d 1305, 1309 (1977). However,
I See affidavit of John S. Heiges attached as Exhibit C to Defendant's Motion for Summary Judgment.
2
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2001-1023 CIVIL TERM
as this Court stated in Herr Estate, 400 Pa. 90,161 A.2d 32
(1960). "where an ambiguity exists, parol evidence is
admissible to explain or clarify or resolve the ambiguity,
irrespective of whether the ambiguity is created by the
language of the instrument or by extrinsic or collateral
circumstances. "
Hutchison v. Sunbeam Coal Corp., 513 Pa. 192,519 A.2d 385, 389 (1986).
In the instant case, the agreement is far from clear and unambiguous. Plaintiffs
contention that paragraph 14 of the agreement required defendant to immediately
segregate a portion of his pension is certainly a reasonable interpretation of the
requirement that he "agrees to a QDRO for $17,500." On the other hand, defendant's
claim that he had no obligation to segregate the $17,500 until he was presented with a
QDRO to sign is arguably supported by other language in the agreement.2
"A contract is ambiguous if it is reasonably susceptible of different constructions
and capable of being understood in more than one sense." Preston v. Saucon Vallev
School Dist., 666 A.2d 1120, 1126 (Pa. Commonwealth 1995). At this stage of the
proceedings, we cannot say that either interpretation is unreasonable. It depends upon the
parties' intention at the time the agreement was signed. Since there is a genuine issue of
fact as to that intention, the grant of summary judgment would not be appropriate.
2 See paragraphs 20 and 25.
3
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2001 - 1023 CIVIL TERM
ORDER
AND NOW, this
l.~
day of AUGUST, 2001, for the reasons stated in the
accompanying opinion, defendant's Motion for Summary Judgment is DENIED.
By the Court,
Isl Edward E. Guido
Edward E. Guido, J.
Melissa A. Swauger, Esquire
For the Plaintiff
Peter 1. Russo, Esquire
For the Defendant
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MARYE. TAYLOR,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY, PENNSYLVANIA
v.
: No. 01-1023 Civil
JOHN S. HEIGES,
Defendant
Civil Action - Law
NOTICE
TO: Shirley Carlisle, Keen Transport, Inc.
You are required to complete the following Certificate of Compliance when producing
documents or things pursuant to this Subpoena.
CERTIFICATE OF COMPLIANCE WITH SUBPOENA TO
PRODUCE DOCUMENTS OR THINGS PURSUANT TO RULE 4009.23
I, Shirley Carlisle, certifY to the best of my knowledge, information and belief that all
documents or things required to be produced pursuant to the Subpoena issued on May 3, 2001 have
been produced.
KEEN TRANSPORT, INC.
Dated: R~ ~~(.?I
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Shirley Carlisle '
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MARYE. TAYLOR,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY, PENNSYLVANIA
v.
: No. 01-1023 Civil
JOHN S. HEIGES,
Defendant
Civil Action - Law
PRAECIPE TO SUBSTITUTE EXHIBIT "B" TO PLAINTIFF'S BRIEF IN
OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
TO THE PROTHONOTARY:
Please substitute Exhibit "B" attached to this Praecipe for the Exhibit "B" filed with
Plaintiffs Brief in Opposition to Defendant's Motion for Summary Judgment on July 20,2001.
SHUMAKER WILLIAMS, P.c.
Dated: 7/D/01
By
01\tb~ (; S:~u~eC
.
Laurence W. Dague, LD. #19715
Melissa A. Swauger, LD. #82382
P.O. Box 88
Harrisburg, P A 17108
(717) 763-1121
Attorneys for Plaintiff
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MARYE. TAYLOR,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY, PENNSYLVANIA
v.
; No. 01-1023 Civil
JOHN S. HEIGES,
Defendant
Civil Action - Law
DECLARATION OF MARY E. TAYLOR
I, Mary E. Taylor, aver the following:
1. I am the Plaintiff in the above-captioned matter.
2. I executed a Marital Agreement dated November 6, 1990.
3. Pursuant to the Marital Agreement, both Defendant and I agreed that $17,500 of his
principal in the Keen Transport, Inc. Pension Plan would be segregated for me.
4. Pursuant to the Marital Agreement, both Defendant and I agreed that when Defendant
retired, I was entitled to $17,500 plus the investment growth that such an amount earned in
Defendant's Pension Plan from Keen Transport, Inc. from 1990 until the date of distribution.
5. It was never my intention to only receive $17,500 when Defendant retired from Keen
Transport, Inc.
6. I learned that a Qualified Domestic Relations Order was not filed in the amount of
$17,500 after Defendant retired frOJr Keen Transport, Inc.
7. My counsel returned Defendant's check in the amount of $17,500 with a notation of
"Divorce Settlement" because I do not accept Defendant's check in the amount of$17,500 as full
accord and satisfaction of my claims under the Marital Agreement.
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CERTIFICATE OF SERVICE
I, Melissa A. Swauger, Esquire, of the law firm of Shumaker Williams, P.C., hereby certify
that I served a true and correct copy of the foregoing Praecipe to Substitute Exhibit "B" to Plaintiffs
Briefin Opposition to Defendant's Motion for Summary Judgment on this date by depositing a copy
of the same in the possession of the United States mail, first-class, postage prepaid, addressed as
follows:
Peter Russo, Esquire
5010 Trindle Road
Mechanicsburg, P A 17055
SHUMAKER WILLIAMS, P.C.
Dated: 1!B!C\
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By Fhhn-a Q. J:,JOW79C
Melissa A. Swauger
P.O. Box 88
Harrisburg, P A 17108
(717) 763-1121
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: IN THE COURT OF COMMON PLEAS
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MARYE. TAYLOR,
v.
: No. 01-1023 Civil
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JOHN S. HEIGES,
Defendant
Civil Action - Law
';!
PRAECIPE TO DISCONTINUE. SETTLE AND END
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TO: Curt Long, Prothonotary
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Please mark the above-captioned case as discontinued, settled, and ended.
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SHUMAKER WILLIAMS, P.C.
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Dated: '-{ { Y ( 6 d-
By ~ Cr'Sw().AfP'L
Laurence W. Dague, LD. #19715
Melissa A. Swauger, I.D. #82382
P.O. Box 88
Harrisburg, P A 17108
(717) 763-1121
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CERTIFICATE OF SERVICE
I, Melissa A. Swauger, Esquire, of the law firm of Shumaker Williams, P .C., hereby certifY
that I served a true and correct copy ofthe foregoing Praecipe to Discontinue, Settle and End on this
date by depositing a copy of the same in the possession of the United States mail, first-class, postage
prepaid, addressed as follows:
Peter Russo, Esquire
5010 Trindle Road
11echarricsburg,PPl 17055
SHUMAKER WILLIAMS, P.C.
Dated: ~ I" ( oJ.,
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By lli~f#1(), O(~
Melissa A. Swauger
P.O. Box 88
Harrisburg,PA 17108
(717) 763-1121
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PETER 1. RUSSO, ESQillRE
5010 East Trindle Road, Suite 200
Mechanicsburg, P A 17050
(717) 591-1755
Attorney for Defendant
MARYE. TAYLOR
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
v.
NO. 01-1023 CIVIL
JOHN S. HEIGES
Defendant
CIVIL ACTION - LAW
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT
L PROCEDURAL BACKGROUND
Plaintiff, Mary E. Taylor, commenced suit by filing a Complaint on February 21, 2001. On
March 22, 2001, Defendant filed his Answer with New Matter. Plaintiff then filed a response to
Defendant's New Matter on April 9, 2001.
On February 23, 2001, Defendant's counsel was served with Plaintifl's Interrogatories (First
Set) and Requests for Production of Documents. On April 11, 2001, Defendant served Plaintiff's
counsel with Defendant's Objections to Plaintifl's Interrogatories (First Set) and Requests for
Production of Do cum ellts. The pleadings have closed.
II. FACTUAL BACKGROUND
The matter instituted by Plaintiff seeks damages from Defendant's alleged breach of the parties'
Marital Agreement dated November 6, 1990. See PlaintifPs Complaint at ~3. In the Marital
Settlement Agreement Defendant agreed to a QDRO for $17,500.00. See PlaintifPs Complaint at
~4. In the breach of contract action, Plaintiff seeks recovery of damages from Defendant's
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alleged failure to pay $17,500.00 plus investment growth. See Plaintiff's Complaint at ~15 and ~21.
Plaintiff avers in ~ll of her Complaint that the books of Keen Transport, Inc. show that
$17,500.00 of the principal of Defendant's Pension Plan was transferred to Plaintiff in 1990. Shirley
Carlisle, Corporate Secretary of Keen Transport, Inc., signed an affidavit which clearly shows that this
allegation is false. A copy of this affidavit is attached as Exhibit B to Defendant's Motion for Summary
Judgment.
The Plaintiff further alleges that Defendant was unjustly enriched by liis alleged breach of
the Marital Agreement. See Plaintiff's Complaint at mJ28 - 34. However, because unjust
enrichment is a quasi-contractual remedy, and because a contract exists, this claim is not
supported by the pleadings.
m. ISSUE
A.
WHETHER SUMMARY JUDGMENT SHOULD BE
GRANTED IN FAVOR OF DEFENDANT WHEN
PLAINTIFF HAS FAILED TO PRESENT ANY EVIDENCE
TO ESTABLISH A GENUINE ISSUE OF MATERIAL
FACT AND CANNOT ESTABLISH A PRIMA FACIE
CASE AGAINST DEFENDANT.
Suggested Answer: IN THE AFFIRMATIVE.
IV. LAW AND ARGUMENT
A. Standard for Summary Judl!ment
Under Pennsylvania Rule of Civil Procedure 1035(b), a motion for summary judgment can be
granted only when there is no genuine issue as to any material fact and the moving party is entitled to a
judgment as a matter of law. The proper standard in considering a motion for summary judgment is
that summary judgment must be entered if the pleadings, depositions, answers to interrogatories, and
admissions, together with supporting affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law. Consumer Party of
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pennsylvania v. Commonwealth of Pennsylvania, 510 Pa. 158, 507 A.2d 323 (1986); Carringer v.
Taylor, 402 Pa. Super. 197, 586 A.2d 928 (1990); Dibble v. Security of America Life Ins. Co. 404
Super. Ct. 205, 590 A.2d 352 (1991).
In considering a motion for summary judgment, the court must examine the record in a light
most favorable to the non-moving party, detennine whether any genuine issues of material fact exist
and resolve all doubts in favor of the non-moving party. Marks v. Tam!!!!}, 527 Pa. 132, 589 A2d 205
(1991).
The court's inquiry in deciding a motion for summary judgment is whether the admissible
evidence in the record in whatever fonn, from whatever source, considered in the light most favorable
to the opposing party, fails to establish a prima facie case; that is, whether the moving party has
established, by virtue of a developed pretrial record, the cause of action or defense pleaded, or whether
there is a genuine issue offact for decision. Bensalem Townshio School Dist. v. Commonwealth 518
Pa. 581,544 A2d 1318 (1988).
C. Argument
Upon divorcing, Plaintiff, Mary E. Taylor, and Defendant, John S. Heiges, entered into a
property settlement agreement. "Property settlement agreements are to be considered pursuant to
general rules of contract interpretation." Matlock v. Matlock. 28 Phila. 359 (2000) citing Krizoven~
v. Krizovensky. 425 Pa.Super. 204, 211, 624 A.2d 638,642 (1993).
Paragraph 14 of Marital Agreement provides "Husband is employed by KEEN TRANSPORT,
INC. and has a pension and Husband agrees to a QDRO for $17,500." "It is firmly settled that the
intent of the parties to a written contract is contained in the writing itself" Id. at 361, citing Steuart v,
McChesney, 498 Pa. 45, 444 A2d 659 (1982). The parties agreed that Defendant would pay Plaintiff
$17,500.00. Defendant has attempted to pay the agreed upon amount to Plaintiff. Plaintiff now wants
to be paid interest on the agreed amount.
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The Marital Agreement is silent as to the payment of interest and as to the segregation of
.
the $17,500.00 in Defendant's retirement plan. Upon his retirement, Defendant learned that no
QDRO was ever presented to his employer by Plaintiffs attorney, and then paid the agreed
$17,500.00 to Plaintiff from his own funds. Plaintiff is now claiming that the parties had a
different understanding, but there is no language in the agreement to support her claims.
In Matlock, the court explained that it "... is cognizant of the fact that the aggrieved party
wants to have the Court consider the alleged intention of the parties at the 'time of signing the
agreement. .. However, this Court is bound by the four corners of the agreement. .. Unfortunately for
Respondent, the agreement cannot now be refonned. It says what it says." Id. It appears that
Plaintiff, like the respondent in Matlock, regrets not demanding interest on the money, and is now
trying to have the contract renegotiated, but the language of the parties' Marital Agreement is clear
and unambiguous. "A contract is not rendered ambiguous by the mere fact that the parties do not
agree on its construction." Id. Defendant agreed to pay $17,500.00. Plaintiffs desire to have interest
added to that amount does not change what the contract says.
V. CONCLUSION
The Marital Agreement is clear as to the amount owed to Plaintiffs from Defendant Because
the Agreement is clear, the parties are bound by the Agreement Plaintiff has failed to present any
evidence to establish a genuine issue of material fact, and cannot establish a prima facie case against
Defendant. Thus, Defendant, John S. Heiges, is entitled to summary judgment as a matter oflaw.
Respectfully submitted,
C~y
Peter 1. Russo
PA Attomey I.D. 72897
5010 East Trindle Road, Suite 200
Mechanicsburg, P A 17050
(717) 591-1755
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PETERJ.RUSSO,ESQUIRE
5010 East Trindle Road, Suite 200
Mechanicsburg, PA 17050
(717) 591-1755
Attorney for Defendant
MARY E. TAYLOR
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 01-1023 CIVIL
JOHN S. HEIGES
Defendant
CIVIL ACTION - LAW
CERTIFICATE OF SERVICE
I, Peter J. Russo, Esquire, hereby certify that on this day, I am serving a true and correct copy of
the foregoing document on the person(s) listed below in the manner listed below:
Via First Class Mail, Postage Pre-Paid, and addressed as follows:
Melissa W. Swauger, Esquire
Shumaker Williams
P.O, Box 88
Harrisburg, PA 17108
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MARY E. TAYLOR
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY
v.
NO. 01-1023 CIVIL
JOHN S. HEIGES
Defendant
CIVIL ACTION LAW
ORDER
AND NOW, this
day of
2001, upon consideration of the
foregoing Motion For Summary Judgment of Defendant, John S. Heiges, it is hereby
ORDERED, and DECREED that said Motion is GRANTED and summary judgment is
entered against Mary E. Taylor, all claims are dismissed with prejudice.
BY THE COURT
J.
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MARYE. TAYLOR,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY, PENNSYLVANIA
v.
: No. 01-1023 Civil
JOHN S. HEIGES,
Defendant
Civil Action - Law
PRAECIPE TO SUBSTITUTE EXIllBIT "B" TO PLAINTIFF'S BRIEF IN
OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
TO THE PROTHONOTARY:
Please substitute Exhibit "B" attached to this Praecipe for the Exhibit "B" filed with
Plaintiffs Brief in Opposition to Defendant's Motion for Summary Judgment on July 20,2001.
SHUMAKER WILLIAMS, P.C.
Dated: 7!J3/0(
By ~~ (1 s:~~
Laurence W. Dague, LD. #19715
Melissa A. Swauger, LD. #82382
P.O. Box 88
Harrisburg, P A 171 08
(717) 763-1121
Attorneys for Plaintiff
:133512
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MARYE. TAYLOR,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY, PENNSYLVANIA
v.
: No. 01-1023 Civil
JOHN S. HEIGES,
Defendant
Civil Action - Law
DECLARATION OF MARY E. TAYLOR
I, Mary E. Taylor, aver the following:
1. I am the Plaintiff in the above-captioned matter.
2. I executed a Marital Agreement dated November 6, 1990.
3. Pursuant to the Marital Agreement, both Defendant and I agreed that $17,500 of his
principal in the Keen Transport, Inc. Pension Plan would be segregated for me.
4. Pursuant to the Marital Agreement, both Defendant and I agreed that when Defendant
retired, I was entitled to $17,500 plus the investment growth that such an amount earned in
Defendant's Pension Plan from Keen Transport, Inc. from 1990 until the date of distribution.
5. It was never my intention to only receive $17,500 when Defendant retired from Keen
Transport, Inc.
6. I learned that a Qualified Domestic Relations Order was not filed in the amount of
$17,500 after Defendant retired frOlr Keen Transport, Inc.
7. My counsel returned Defendant's check in the amount of $17,500 with a notation of
"Divorce Settlement" because I do not accept Defendant's check in the amount of$17,500 as full
accord and satisfaction of my claims under the Marital Agreement.
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Dated:
133477
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CERTIFICATE OF SERVICE
I, Melissa A. Swauger, Esquire, of the law firm of Shumaker Williams, P.C., hereby certify
that I served a true and correct copy ofthe foregoing Praecipe to Substitute Exhibit "B" to Plaintiff s
Briefin Opposition to Defendant's Motion for Sunnnary Judgment on this date by depositing a copy
of the same in the possession of the United States mail, first-class, postage prepaid, addressed as
follows:
Peter Russo, Esquire
5010 Trindle Road
Mechanicsburg, P A 17055
SHUMAKER WILLIAMS, P.C.
Dated: 1j:u/ol
,
By ~a Q~ SvJ{fJ/~
Melissa A. Swauger
P.O. Box 88
Harrisburg, P A 17108
(717) 763-1121
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MARYE. TAYLOR,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY, PENNSYLVANIA
v.
: No. 01-1023 Civil
JOHN S. HEIGES,
Defendant
: Civil Action - Law
ORDER
AND NOW, this _ day of
,2001, upon consideration of Plaintiff's Motion
to Compel, IT IS HEREBY ORDERED that Defendant shall provide responses and produce
documents to Plaintiff s First ofInterrogatories Addressed to Defendant and Plaintiff s First Request
for Production of Documents within ten (10) days of the instant Order.
BY THE COURT:
1.