HomeMy WebLinkAbout01-1287 FX
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MARY A. BRETZ,
Plaintiff
:IN THE COURT OF COMMON PLEAS OF
:CUMBERLAND COUNTY, PENNSYL VANIA
V.
:DOCKETNO. CI/-1.:21i'7q.....:c,!b---
KENNETH L. BRETZ, SR and
GAIL ILENE BRETZ,
Defendants
:CIVIL ACTION - EQUITY
NOTICE
You have been sued in court. If you wish to defend against the claims set forth in the
following pages, you must take action within twenty (20) days after this complaint and notice are
served, by entering a written appearance personally or by attorney and filing in writing with the
court your defenses or objections to the claims set forth against you. You are warned that if you
fail to do so the case may proceed without you and a judgment may be entered against you by the
court without further notice for any money claimed in the complaint or for any other claim or
relief requested by the Plaintiff. You may lose money or property or other rights important to
you.
YOU SHOULD TAKE TillS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FlND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, Pennsylvania 17013
(717)249-3166
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MARY A. BRETZ,
Plaintiff
:IN THE COURT OF COMMON PLEAS OF
:CUMBERLAND COUNTY, PENNSYLVANIA
V.
:DOCKETNO. iDl- ;:H7 f}.~Cj T.a-
KENNETH L. BRETZ, SR. and
GAIL ILENE BRETZ,
Defendants
:CIVIL ACTION - EQUITY
COMPLAINT
AND NOW comes the Plaintiff, Mary A. Bretz, by and through her attorneys, KOLLAS
AND KENNEDY, and avers the following in support ofthis complaint:
BACKGROUND
1. Plaintiff, Mary A. Bretz, is an adult individual currently residing with her grand
daughter, Michelle L. King, at 34 Sherwood Circle, Enola, Cumberland County, Pennsylvania.
2. Plaintiff, Mary A. Bretz, is seventy-four years old, her birthday being July 14,
1926.
3. Defendant, Kenneth L. Bretz, Sr., is an adult individual residing at 26 Riverview
Drive, Enola, Cumberland County, Pennsylvania, and is the husband of Gail Ilene Bretz.
4. Defendant, Gail Ilene Bretz, is an adult individual residing at 26 Riverview Drive,
Enola, Cumberland County, Pennsylvania, and is the wife of Kenneth L. Bretz, Sr.
5. Plaintiff, Mary A. Bretz, is the mother of defendant, Kenneth L. Bretz, Sr. and is
the mother-in-law of defendant Gail Ilene Bretz.
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6. On August 20, 1998, Mary A. Bretz signed a Durable Power of Attorney, a true
and accurate copy of which is attached hereto as Exhibit "A."
7. Defendant Kenneth L. Bretz, Sr. is named as an "Attorney-in-Fact" in the
aforementioned Durable Power of Attorney.
TRANSACTION IN QUESTION
8. On or about June 9, 2000, the defendants took Mary A. Bretz to their attorney's
office, where, in the presence of and at the urging of the defendants and their attorney, Mary A.
Bretz gave or transferred her real property at 40 Creekside Drive, Enola, Cumberland County,
Pennsylvania to the defendants by a deed, a true and accurate copy of which is attached hereto as
Exhibit "B."
9. The deed purports to convey to'defendants all that certain tract lot or tract of land
known as 40 Creekside Drive, Enola, Pennsylvania for the nominal consideration of "One
($1.00) Dollar, Natural love and affection" liIld no other consideration.
lO. At the time ofthe transfer, Mary A. Bretz was seventy-three years old, weak in
body and mind, easily influenced, and not possessed of sufficient mental capacity to comprehend
the true meaning of the deed or the effects ofher acts.
11. At the time of the transfer, Mary A. Bretz was taking anti-depressant medication
which adversely affected her reasoning and comprehension such that she was not possessed of
sufficient mental capacity to comprehend the true meaning of the deed or the effects of her acts.
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12. At or near the time of the transfer, a confidential relationship existed between
Mary A. Bretz, and Kenneth L. Bretz, Sr., who was both son and attomey-in-fuct to Mary A.
Bretz.
13. At or near the time of the transfer, a confidential relationship existed between
Mary A. Bretz, and Gail Ilene Bretz, who was her daughter-in-law.
14. At or near the time of the transfer, Kenneth L. Bretz, Sr. occupied a superior and
overmastering position over Mary A. Bretz, intellectually and physically, and had the opportunity
to use, and did use, that superiority to the disadvantage of Mary A. Bretz.
l5. At or near the time of the transfer, Gail Ilene Bretz occupied a superior and
overmastering position over Mary A. Bretz, intellectually and physically, and had the opportunity
to use, and did use, that superiority to the disadvantage of Mary A. Bretz.
16. Defendants induced Mary A. Bretz to execute the deed through fraud, duress,
coercion, and undue influence.
17. The acts committed by Kenneth L. Bretz, Sr. which constitute fraud, duress,
coercion, and undue influence include, but are not limited to, excessive importunity, verbal abuse,
intimidation, and threats, all of which were directed towards or against Mary A. Bretz.
18. The acts committed by Gail Ilene Bretz which constitute fraud, duress, coercion,
and undue influence include, but are not limited to, excessive importunity, verbal abuse,
intimidation, and threats, all of which were directed towards or against Mary A. Bretz.
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19. The aforesaid acts were committed by the defendants at or near the time of the
execution of the deed and for a period prior thereto.
20. The aforesaid acts were committed by the defendants with the sole purpose and
design of constraining Mary A. Bretz to execute the deed and to give her house over to the
defendants, which Mary A. Bretz otherwise would not have done.
21. Despite the repeated demands of Mary A. Bretz for the return of the real property
at 40 Creekside Drive, Enola, Cumberland County, Pennsylvania, defendants have refused to
return the property.
WHEREFORE, plaintiff, Mary A. Bretz, prays that:
(A) the deed from Mary A. Bretz to Kenneth L. Bretz and Gail Ilene Bretz,
husband and wife, dated June 9, 2000, be declared null and void, and that the defendants be
ordered to reconvey all the estate and premises described in the deed to plaintiff in fee;
(B) pending this action, defendants be preliminarily and thereafter permanently
restrained from disposing of any of the real estate described in the deed or conveying or in any
way encumbering the same;
(C) such other and further relief as may be deemed necessary and proper.
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RESPECTFULLY SUBMITTED:
~
William C. Kollas, Esquire
Supreme Court J.D. No. 06341
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?:fames W. Kollas, Esquire
Supreme Court J.D. No. 81959
KOLLAS AND KENNEDY
l104 Fernwood Avenue
Suite 104
Camp Hill, PA l7011
(717) 731-1600
ATTORNEY FOR PLAINTIFF
Dated: 3/7/.01
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VERIFICATION
I, Mary A. Bretz, the plaintiff herein, verify that the statements made in the foregoing
Complaint are true and correct to the best of my knowledge, information, and belief. I understand
that false statements herein are made subject to the penalties of l8 Pa. C.S.A. 4904, relating to
unsworn falsification to authorities.
DATE?:J-{- 0\
BY: JJ1 ~ (J. ~f
. Mary A. retz
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DURABLE PO~ER OF ATTORNEY
Ifor
MARY IA. BRETZ
I, MARY A. BRETZ Of East Pen~sboro Township, Cumberland County,
Pennsylvania, being of sound and dispo~ing mind, memory and understanding, do
hereby create this DURABLE POWER Off ATTORNEY, pursuant to Pennsylvania
Consolidated Statutes 20, Section 5601. i
I hereby empower my son, Kennetr L. Bretz Sr. or my grand daughter, Michelle
L. King, as my Attorney-in- Fact to:
1. MAKE GIFTS
2. CREATE A TRUST FOR~Y BENEFIT
3. MAKE ADDITIONS TO A EXISTING TRUST FOR MY BENEFIT
4. CLAIM AN ELECTIVE S ARE OF THE ESTATE OF MY DECEASED
SPOUSE i
5. DISCLAIM ANY INTERE~' T IN PROPERTY
6. RENOUNCE FIDUCIAR POSITIONS
7. WITHDRAW AND RECEIVE THE INCOME OR CORPUS OF A
TRUST '
8. AUTHORIZE MY ADMIS~ON TO A MEDICAL, NURSING,
RESIDENTIAL OR SIMI R FACILITY AND TO ENTER INTO
AGREEMENTS FOR MY ARE
9. AUTHORIZE MEDICAL ~ND SURGICAL PROCEDURES
1 O.ENGAGE IN REAL PRO ERTY TRANSACTIONS
11.ENGAGE IN TANGIBLE ERSONAL PROPERTY TRANSACTIONS
,
12.ENGAGE IN STOCK,BOND AND OTHER SECURITIES
TRANSACTIONS !
13.ENGAGE IN COMMODITY AND OPTION TRANSACTIONS
14.ENGAGE IN BANKING ~ND FINANCIAL TRANSACTIONS
15.BORROW MONEY .
16.ENTER SAFE DEPOSITIBOXES
17.ENGAGE IN INSURAN E TRANSACTIONS
18.ENGAGE IN RETIREME T PLAN TRANSACTIONS
19.HANDLE INTERESTS I ESTATES AND TRUSTS
2O.PURSUE CLAIMS AND ITIGATION
21.RECEIVE GOVERNME BENEFITS
,
22 PURSUE TAX MA TTER$
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IN WITNESS WHEREOF, I hereunto set my hand and seal to this my
DURABLE POWER OF A1TORN~ tt:Jeasons as stated above, on this,
the &..~ day of .J , 1998,
)/J~(J M-
MARY A BRETZ
WITNESS:X !/r:;/'I'lh1.t1.tIt rf. ~Pkl
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COMMONWEALTH OF PENNSYLVANIA)
) ss.:
COUNTY OF CUMBERLAND )
ON, this the do ~ of 4->~,--,.s.J.- , 1998. before me, a notary
public, the undersigned officer, personal! ,appeared MARY A. BRETZ, (known to me
or satisfactorily proven) to be the person whose name is signed to the foregoing
DURABLE POWER OF AlTORNEY, and acknowledged that she executed the same
for the reasons and purposes therein expressed.
IN WITNESS WHEREOF
and official seal.
My Commission Expires:
S~Je10N ~o UO!t8jOOS9't e!UIM SUlJi 'J8t!WI
QQ()G 'joG ,.ON ..J!dX3 UO\s.!wwOQ h1
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Special Warranty Deed Tax ParcellD #
Instrument #
THIS
DEED
MADE THIS fr;;;;y OFa~N THE YEAR TWO THOUSAND
(20001
BETWEEN: MARY ANN BRETZ. widow woman.
or East Pennsboro Townshio. Pennsvlvan/a.
HEREINAFTER REFERRED TO AS "GRANTOR"
AND
KENNETH L. 'BRETZ AND GAIL ILENE BRETZ. husband and wile.
of East Pennsboro Townshtc. Pennsvlvania.
HEREINAFTER REFERRED TO AS "GRANTEES"
WITNESSETH, THAT IN CONSIDERATION OF ONE ($1.00) DOLLAR, Natural love
and allectlon IN HAND PAID. THE RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED, THE
GRANTOR DOES HEREBY CONVEY TO SAID GRANTEES. THEIR HEIRS AND ASSIGNS,
ALL THAT CERTAIN TRACT LOT OR TRACT OF LAND situate in East Pennsboro Township.
Cumberland County. Pennsylvania, more particularly bounded and described as follows, to
wit:
BOUNDED on the north by the public road known as Creekside Drive; on the
east by land now or formerly of George Reichert; one the south by the Conodoguinet
Creek and on the west by land now or late of John Eckert; also known as Lot NO.2 in
the her.einafter referred to Plot Plan.
HAVING THEREON ERECTED A TWO STORY FRAME DWELLING
HOUSE known as 40 Creekside Drive, Enola, Pennsylvania 17025.
BEING THE SAME PREMISES which Vance W. Bretz and Mary Ann Bretz
as husband and wife, received by deed dated the 25th day of January 1950, from
Vance W. Bretz and recorded in the Cumberland County Recorder of Deeds Office in
Deed BookJ, Vol. 14, Page 23 on the 30th day of January 1950, except for a
tract of land known as Lot NO.1 on a subdivision plan of D.P. Raffensperger of June
27,1975 as will more fully appear in Plan Book _ Page _ as recorded in the
Recorder of Deeds Office of Cumberland County, which was conveyed to Vance W.
Bretz Jr. and Linda Lee Bretz by deed dated December 9, 1975 as will more fully
appear in Deed Book K, Volume 26, Page 348.
Vance W. Bretz died on the 21st day of May, 1996, thereby vesting sole title in
his wife, Mary Ann Bretz, the grantor herein.
Jour Z23 :'I.~E r 55
. EXHIBIT
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COMMONWEALTH OF PENNSYLVANIA)
) 55.:
COUNTY OF CUMBERLAND )
RECORDED ON THIS ~ DAY OF ~(:)UV A.D. 2000. IN THE
RECORDER'S OFFICE OF SAID COUNTY IN
DEED BOOK ~~3. PAGE 5"<;'
GIVEN UNDER MY HAND AND THE SEAL OF ~}Sfl'? OFFICE, THE DATE
ABOVE WRITTEN. ~
RECORDER
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THIS IS' A CONVEYANCE FROM 'MOTHER TO SON AND WIFE AND IS
THEREFORE EXEMPT FROM PENNSYLVANIA REALTY TRANSFER TAX,
AND, the said GRANTOR hereby specially warrants the property conveyed.
IN WITNESS WHEREOF, THE GRANTOR HAS HEREUNTO SET HER
HAND AND SEAL, THE DAY AND YEAR FIRST ABOVE WRITTEN.
SIGNED, SEALED AND
DELIVERED IN THE
PRES~E OF A
CA~.~~~';
"'YJ/1 Q/Uj.. t14n1 M.. 1: (SEAL)
/ / /MAIVV' ANN BRE~<.VC1-
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COMMONWEALTH OF PENNSYLVANIA)
) 55,
COUNTY OF CUMBERLAND )
ON THIS, the 9~f CJu-e-- A.D.,2000, before me,
the undersigned officer, personally
appeared MARY ANN BRETZ, widow woman, known to me (or satisfactorily proven) to
be the person whose name is subscribed to the within instrument, and acknowledged
she executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
C\ u,Q& Pi:L---
. c::. ~otary Public
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My Commis . ..... 0.~,'''';.:<. '. .
NolarlalSeal : f)...,~t\"'l.,~,~...
Donald B. OWen, Nolary PubliC ...~: .:'j:';." ,::~.....
East PennsbolO Twp., Cumberland County
MyCommlsslonExplres Nov. 24,2000 . _ ::Ie . c') :
Member, PeMsylvania AsSOCIation 01 Notaries ", ';(;... (~ .: .
I HEREBY CERTIFY. THAT THE PRECISE RESIDENCE OF THE GRANTEEg:;ji/!1:1.~~~~~ .
26 Riverview Drive Enola, PA 17025 , /J Il ~ G......
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Attorney For: ~e ~ ~
81iiiK 223 PAGE · 56
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MARY A. BRETZ,
Plaintiff
:IN THE COURT OF COMMON PLEAS OF
:CUMBERLAND COUNTY, PENNSYL V ANlA
V.
:DOCKETNO. 01- /20-:r ~~ . /
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KENNETH L. BRETZ, SR. and
GAIL ILENE BRETZ,
Defendants
:CIVIL ACTION - EQUITY
PRAECIPE
TO THE PROTHONOTARY:
Please mark the above action as a lis pendens against the property which is the subject of
this action and more fully bounded and described on Exhibit "A" attached hereto, marked Exhibit
"A" and made a part hereof, and please index this lis pendens against the defendants, Kenneth L.
Bretz, Sr. and Gail Ilene Bretz.
RESPECTFULLY SUBMITTED:
~
William C. Kollas, Esquire
Supreme Court J.D. No. 06341
Dated: 5/~/O I
k~ fR--
es W. Kollas, Esquire
Supreme Court I.D. No. 81959
KOLLAS AND KENNEDY
1104 Fernwood Avenue
Suite 104
Camp Hill, PA 17011
(717) 731-1600
ATTORNEY FOR PLAINTIFF
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Special Warranty Deed Tax Parcel 10 #
Instrument #
THIS
DEED
MADE THIS f~y OFc[~N THE YEAR TWO THOUSAND
(20001
BETWEEN: MARY ANN BRETZ. wIdow woman.
of East Pennsboro TownshiD. Pennsvlvsnls.
HEREINAFTER REFERRED TO AS "GRANTOR"
AND
KENNETH L. BRETZ AND GAIL ILENE BRETZ. husband and wile.
of East Pennsboro TownshlD. Pennsvlvanla.
HEREINAFTER REFERRED TO AS "GRANTEES"
WITNESSETH. THAT IN CONSIDERATION OF ONE ($1.00) DOLLAR, Natura' love
and allectlon IN HAND PAID. THE RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED. THE
GRANTOR DOES HEREBY CONVEY TO SAID GRANTEES. THEIR HEIRS AND ASSIGNS.
ALL THAT CERTAIN TRACT LOT OR TRACT OF LAND situate in East Pennsboro Township,
Cumberland County. Pennsylvania, more particularly bounded and described as follows, to
wit:
BOUNDED on the north by the public road known as Creekside Drive; on the
east by land now or formerly of George Reichert; one the south by the Conodoguinet
Creek and on the west by land now or late of John Eckert; also known as Lot NO.2 in
the hereinafter referred to Plot Plan: .
HAVING THEREON ERECTED A TWO STORY FRAME DWELLING
HOUSE known as 40 Creekside Drive, Enola, Pennsylvania 17025.
BEING THE SAME PREMISES which Vance W. Bretz and Mary Ann Bretz
as husband and wife, received by deed dated the 25th day of January 1950, from
Vance W. Bretz and recorded in the Cumberland County Recorder of Deeds Office in
Deed Book J, Vol. 14, Page 23 on the 30th day of January 1950, except for a
tract of land known as Lot NO.1 on a subdivision plan of D.P. Raffensperger of June
27, 1975 as will more fully appear in Plan Book _ Page _ as recorded in the
Recorder of Deeds Office of Cumberland County, which was conveyed to Vance W.
Bretz Jr. and Linda Lee Bretz by deed dated December 9,1975 as will more fully
appear in Deed Book K, Volume 26, Page 348.
Vance W. Bretz died on the 21st day of May, 1996, thereby vesting sole title in
his wife, Mary Ann Bretz, the grantor herein.
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COMMONWEALTH OF PENNSYLVANIA)
) 55.:
COUNTY OF CUMBERLAND )
RECORDED ON THIS ~ DAY OF ?<>'\,.O/ A.D. 2000. IN THE
RECORDER'S OFFICE OF SAID COUNTY IN
DEED BOOK ~~3. PAGE S-~
GIVEN UNDER MY HAND AND THE SEAL OF ~}SJlo. OFFICE, THE DATE
ABOVEWRITrEN. ~
RECORDER
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THIS IS A CONVEYANCE FROM MOTHER TO SON AND WIFE AND IS
THEREFORE E:XEMPT FROM PENNSYLVANIA REALTY TRANSFER TAX.
AND, the said GRANTOR hereby specially warrants the property conveyed.
IN WITNESS WHEREOF, THE GRANTOR HAS HEREUNTO SET HER
HAND AND SEAL, THE DAY AND YEAR FIRST ABOVE WRllTEN.
SIGNED, SEALED AND
DELIVERED IN THE
PRES~E OF A
~~.M.~~~
2lJ.~!'2?1m ~ (SEAL)
MA ANN BRETZ
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COMMONWEALTH OF PENNSYLVANIA)
) ss.
COUNTY OF CUMBERLAND )
ON THIS, the 9~f c:r-u-e-- A.D.,2000, before me,
the undersigned officer, personally
appeared MARY ANN BRETZ, widow woman. known to me (or satisfactorily proven) to
be the person whose name is subscribed to the within instrument, and acknowledged
she executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
C\u,Q&'W---
. c:::. ~otary Public
My Commis .
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Member, Pennsylvania Association ot Notaries '. "'".. (;.~ .:
I HEREBY CERTIFY. THAT THE PRECISE RESIDENCE OF THE GRANTEEtjit::~:I.~~.,~~t,
26 Riverview Drive Enola, PA 17025 , /J Il . 's G...>
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Attorney For: --J2 9t ~
NotallalSeal
Donald 8. Owen, Nolal'/ Public
East Pennsboro Twp., Cumbeltand County
My CommissIOn EJCplres Nov, 24. 2000
BOOK 223 PAGE · 56
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CERTIFICATE OF SERVICE
!, Carole A. Rose, of the Law Offices ofKollas and Kennedy, hereby certifY that I
have this -.:Jofu day of March, 2001, served a true and correct copy ofa PRAECIPE by
depositing same in the United States mail, first-class, postage prepaid, addressed to the following:
Kenneth L. Bretz, Sr.
26 Riverview Drive
Enola, P A 17025
Defendant
Gail Ilene Bretz
26 Riverview Drive
Enola, P A 17025
Defendant
LAW OFFICE OF KOLLAS AND KENNEDY
BY \pWU CLl2n2L
arole A. Rose
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CASE NO: 2001-01287 P
SHERIFF'S RETURN - REGULAR L}r.
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
BRETZ MARY A
VS
BRETZ KENNETH SR ET AL
WILLIAM DIEHL
, Sheriff or Deputy Sheriff of
Cumberland County,pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT - EQUITY
was served upon
BRETZ GAIL ILENE
the
DEFENDANT
, at 1915:00 HOURS, on the 8th day of March
, 2001
at 26 RIVERVIEW DRIVE
ENOLA, PA 17025
by handing to
KENNETH BRETZ - HUSBAND
a true and attested copy of COMPLAINT - EQUITY
together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
6.00
.00
.00
10.00
.00
16.00
So A;;~~~~~4
R. Thomas Kline
03/12/2001
JAMES KOLLAS
me this J'iq;"
day of
Sworn and Subscribed to before By:
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SHERIFF'S RETURN - REGULAR
NO: 2001-01287 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
BRETZ MARY A
VS
BRETZ KENNETH SR ET AL
WILLIAM DIEHL
, Sheriff or Deputy Sheriff of
Cumberland County, Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT - EQUITY
was served upon
BRETZ KENNETH L SR
the
DEFENDANT
, at 1915:00 HOURS, on the 8th day of March
, 2001
at 26 RIVERVIEW DRIVE
ENOLA, PA 17025
by handing to
KENNETH BRETZ
a true and attested copy of COMPLAINT - EQUITY
together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
So Answers:
18.00
9.30
.00
10.00
.00
37.30
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R. Thomas Kline
03/12/2001
JAMES KOLLAS
Sworn and Subscribed to before
By:
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Deputy S
me this .1'/ Cb<
day of
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MARY A. BRETZ,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v.
CIVIL ACTION - EQUITY
KENNETH L. BRETZ, SR. and
GAIL ILENE BRETZ,
NO. 01-1287 EQUITY TERM
Defendants
PRAECIPE FOR ENTRY OF APPEARANCE
Please enter the appearance of the undersigned on behalf of Defendants, Kenneth L. Bretz,
Sr., and Gail Ilene Bretz, in the above-captioned matter.
Respectfully submitted,
TUCKERARENSBERG & SWARTZ
By qJ.~~
Attorney J.D. #39182
111 North Front Street
P.O. Box 889
Harrisburg, PA 17108-0889
(717) 234-4121
Dated:
3.-- 29 .--OJ
Attorney for Defendants
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CERTIFICATE OF SERVICE
AND NOW, this .3J;tt; day of ~
,2001, PAULA J. BEITER,
for the firm of TUCKER ARENSBERG & SWARTZ, attorneys for Defendants, hereby certify
that I have this day served the within document by depositing a copy of the same in the United
States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows:
James W. Kollas, Esquire
Kollas and Kennedy
1104 Fernwood Avenue
Suite 104
Camp Hill, PA 17011
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MARY A. BRETZ,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v.
CIVIL ACTION - EQUITY
KENNETH L. BRETZ, SR. and
GAIL ILENE BRETZ,
NO. 01-1287 EQUITY TERM
Defendants
DEFENDANTS' PRELIMINARY OBJECTIONS
AND NOW, comes the Defendants and file Preliminary Objections to the Plaintiff's
Complaint and states as follows:
FAILURE TO STATE A CAUSE OF ACTION (DEMURRER)
I. Plaintiff attempts to allege in Paragraph 10 of her Complaint that she did not
possess "sufficient mental capacity to comprehend the true meaning of the deed or the effects of
her acts. "
2. To the extent that the Plaintiff is alleging that she is mentally incompetent to
legally transfer the property in question, then Plaintiff's Complaint is legally insufficient.
3. Prior to the execution of the Deed, the Plaintiff was not previously adjudicated to
be incompetent.
4. Absent an adjudication of competency, a claim to set aside a deed based on the
mental incapacity of the Plaintiff as set forth in Paragraph 10 is not legally sufficient.
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5. Likewise, the allegations set forth in Paragraph 11 as to being under the influence
of medication so as to adversely affect her reasoning and comprehension is likewise legally
insufficient.
6. Consequently, the Plaintiff has failed to state a legally sufficient claim to have the
Deed set aside on the basis of, or lack of, sufficient mental capacity.
LACK OF SUFFICIENT SPECIFICITY
7. Plaintiff alleges that there was a confidential relationship that existed between
Mary Bretz, Kenneth Bretz and Mary A. Bretz.
8. Plaintiff fails to state with sufficient legal specificity the exact nature of the
alleged confidential relationship between the parties.
9. The Plaintiff alleges that the Defendants had the opportunity to use, and did use,
both superior intellectual and physical capacity over Mary A. Bretz to the Plaintiffs
disadvantage.
10. Plaintiff does not state with sufficient legal specificity the various opportunities of
when and how the alleged superiority was exercised.
11. Plaintiff alleges that the acts of the Defendant constituted fraud, duress, coercion
and undue influence.
12. Plaintiff does not allege with sufficient legal specificity the fraud, duress,
coercion and undue influence.
13. Pursuant to Pa.R.C.P. 1019(b), Plaintiff must make averments of fraud with
particularity, unlike what she has set forth in her Complaint.
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WHEREFORE, Defendants respectfully request this Honorable Court to dismiss
Plaintiffs Complaint on the basis that:
(a) It fails to state a cause of action due to the Plaintiffs lack of mental capacity not
having previously been adjudicated to be legally incompetent or; alternatively,
(b) Require the Plaintiff to plead with specificity the nature of a confidential
relationship that allegedly existed, the use of the alleged superiority of the Defendants over the
Plaintiff, and the particulars of the alleged fraud, duress, coercion and undue influence.
Respectfully submitted,
TUCKERARENSBERG & SWARTZ
By:
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Dennis R. iheaffe
Attorney J.D. #39182
111 North Front Street
P.O. Box 889
Harrisburg, PA 17108-0889
(717) 234-412l
Dated:
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Attorney for Defendants
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CERTIFICATE OF SERVICE
ANDNOW,this ;fd- day of 4r~/
,2001, PAULA J. BEITER,
for the firm of TUCKER ARENSBERG & SWARTZ, attorneys for Defendants, hereby certify
that I have this day served the within document by depositing a copy of the same in the United
States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows:
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James W. Kollas, Esquire
Kollas and Kennedy
ll04 Fernwood Avenue
Suite 104
Camp Hill, PA 170ll
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and subnitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter far the next Argunent Court.
---------------------------------------------------------------------------------------
CAPTION OF CASE
(entire caption must be stated in full)
MARY A. BRETZ,
(Plaintiff)
vs.
KENNETH L. BRETZ, SR. and
GAIL ILENE BRETZ,
(Defendant)
No. 01-1287 Equity Term
1. State matter to be argued (Le.. plaintiff's rrotion for new trial. defendant's
dam=er to canplaint. etc.): Defendant's preliminary obj ections
2. Identify counsel who will argue case:
(a) for plaintiff: James W. Kallas, ESliJuire
~s: 1104 Fernwood Avenue
Ste. 104
Camp Hill, PA 17011
(b) for defendant: Dennis R. Sheaffer, Esquire
~s: 111 N. Front Street
P.O. Box 889
Harrisburg, PA 17108-0889
3. I will notify all parties in writing within n.o days that this case has
been listed for argurent.
4. Argunent Court Date: May 23, 2001
Dated:4ItQ/ol
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MARY A. BRETZ,
PLAINTIFF
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
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V.
KENNETH L. BRETZ, SR. and
GAIL ILENE BRETZ,
DEFENDANTS
: 01-1287 EQUITY
BEFORE BAYLEY. J. AND HESS. J.
ORDER OF COURT
AND NOW, this~day of July, 2001, the preliminary objections of defendants
to plaintiffs complaint, ARE DISMISSED.
Edgar B. BayleY; J.
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James W. Kollas, Esquire
For Plaintiff
Dennis R. Sheaffer, Esquire
For Defendants
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MARY A. BRETZ,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v.
CIVIL ACTION - EQUITY
: NO. 01-1287 EQUITY TERM
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KENNETH L. BRETZ, SR. and
GAIL ILENE BRETZ,
Defendants
NOTICE TO PLEAD
TO: James W. Kollas, Esquire
Kollas and Kennedy
1104 Fernwood Avenue
Suite 104
Camp Hill, PA 17011
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YOU ARE HEREBY notified to file a written response to the enclosed Answer With New
Respectfully submitted,
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Matter within twenty (20) days from service hereof or a judgment may be entered against you.
TUCKERARENSBERG & SWARTZ
By:
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Dennis Rhlheaffer
Attorney I.D. #39182
III North Front Street
P.O. Box 889
Harrisburg, PA 17108-0889
(717) 234-4l21
Dated:
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Attorney for Defendants
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MARY A. BRETZ,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
Plaintiff
v.
CIVIL ACTION - EQUITY
KENNETH L. BRETZ, SR. and
GAIL ILENE BRETZ,
NO. 01-1287 EQUITY TERM
Defendants
DEFENDANTS' ANSWER WITH NEW MATTER
TO PLAINTIFF'S COMPLAINT
AND NOW, come Defendants, Kenneth L. Bretz, Sf. and Gail Ilene Bretz, by and
through their attorneys, Tucker Arensberg & Swartz, and answers Plaintiff's Complaint as
follows:
1. Admitted in part; denied in part. It is admitted that Plaintiff is an adult individual.
It is denied that Plaintiff ever maintained her residence at 34 Sherwood Circle, Enola,
Cumberland County, Pennsylvania.
2. Admitted.
3. Admitted.
4. Admitted.
5. Admitted.
6. Admitted.
7. Admitted in part; denied in part. It is admitted that Defendant Kenneth L. Bretz,
Sr. was named as an Attorney-in-Fact in the Power of Attorney. It is denied that Kenneth L.
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Bretz was named the sole Attorney-in-Fact for the Plaintiff. To the contrary, Michele King was
also named as an Attorney-in-Fact.
8. Admitted in part; denied in part. It is admitted that on or about June 9, 2000,
Plaintiff gave her real property located at 40 Creekside Drive, Enola, Cumberland County,
Pennsylvania, to the Defendants by Deed, and that a true and correct copy of said Deed is
attached as Exhibit "B" to the Complaint. It is specifically denied that the Defendants took the
Plaintiff to their attorney's office. To the contrary, the attorney, Donald B. Owen, Esquire, was
the Plaintiff's attorney. It is further denied that the Defendants or Attorney Owen urged the
Plaintiff to transfer the real estate to the Defendants. To the contrary, it was at the Plaintiff's
request that Attorney Owen prepared the Deed, and it was her intention to provide the real estate
to the Defendants as a gift. She made the transfer of her own free will and volition and without
any urging, undue influence, coercion, or insistence by the Defendants.
9. The allegation is denied to the extent that it is contrary to the specific language
used in the Deed. The language of the Deed speaks for itself.
10. Admitted in part; denied in part. It is admitted that at the time of transfer,
Plaintiff was 73 years old. It is specifically denied that the Plaintiff was in a weakened state,
either physically or mentally. It is specifically denied that she was easily influenced and did not
possess sufficient mental capacity to comprehend the true meaning of the Deed or the effects of
her transfer of the real estate by Deed. To the contrary, at the time of the transfer in question,
Ms. Bretz was completely independent, and dependent upon no one. She was physically and
mentally capable of dictating her own affairs. She certainly was not easily influenced and was of
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sound mind, such that she was able to fully understand the nature of her actions, as well as the
true meaning of her deeding the property to the Defendants.
11. Denied. It is specifically denied that at the time of the transfer in question that
the Plaintiff was under the influence of anything, including medication, that would adversely
affect her reasoning and comprehension to the extent that she would not have possessed
sufficient mental capacity to comprehend the results of her acts and the meaning of the Deed. To
the contrary, Ms. Bretz fully understood the meaning of the Deed and the effects of her acts and
had more than sufficient mental clarity to understand the true meaning of her actions. Her
reasoning was not adversely affected in any fashion, and particularly, not by any type of
medication which she may have been taking at the time.
12. Denied as a conclusion oflaw. By way of further denial, there was no
confidential relationship between the Defendants and Plaintiff. To the contrary, Plaintiff was
completely independent, living on her own, taking full care of her needs and not relying upon the
Defendants in any fashion. Defendant Kenneth L. Bretz was the Plaintiff's son and one of two
Attorneys-in-Fact, yet, up to that point in time, had never exercised any of his powers granted to
him by the durable Power of Attorney.
13. Denied as a conclusion oflaw. By way of further denial, it is specifically denied
that a confidential relationship existed between the Plaintiff and Defendants. Defendant Kenneth
L. Bretz was the Plaintiffs son and one of two Attorneys-in-Fact, yet, up to that point in time,
had never exercised any of his powers granted to him by the durable Power of Attorney, nor did
anything to foster a confidential relationship.
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14. Denied. It is specifically denied that at the time ofthe transfer, Defendant
Kenneth L. Bretz occupied a superior and overmastering position over Plaintiff, intellectually
and physically, and had the opportunity to use, and did use, that superiority to the disadvantage
of the Plaintiff. To the contrary, Plaintiff was completely and totally independent, physically and
mentally, from Defendant Kenneth L. Bretz. She did not rely upon the Defendant Kenneth L.
Bretz in any fashion, nor was she subjected to any alleged intellectual and physical superiority
such that it would have disadvantaged her.
15. Denied. It is specifically denied that at the time of the transfer, Defendant Gail
Ilene Bretz occupied a superior and overmastering position over Plaintiff, intellectually and
physically, and had the opportunity to use, and did use, that superiority to the disadvantage of the
Plaintiff. To the contrary, Plaintiff was completely and totally independent, physically and
mentally, from Defendant Gail Ilene Bretz. She did not rely upon the Defendant Gail Ilene Bretz
in any fashion, nor was she subjected to any alleged intellectual and physical superiority such
that it would have disadvantaged her.
16. Denied as a conclusion oflaw. By way of further denial, it is specifically denied
that Defendants used any fraud, duress, coercion or undue influence to induce the Plaintiff to
execute the Deed in question. To the contrary, the Plaintiff had requested her own counsel to
prepare the Deed and executed the Deed in an exercise of her own free will and volition with full
knowledge of the effect of her actions and the true meaning of the Deed.
17. Denied as a conclusion oflaw. By way of further denial, it is specifically denied
that Kenneth L. Bretz took any actions which constituted fraud, duress, coercion or undue
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influence, and that he specifically did not use excessive importunity, verbal abuse, intimidation
or threats which were directed at the Plaintiff.
18. Denied as a conclusion oflaw. By way offurther denial, it is specifically denied
that Defendant Gail Ilene Bretz took any actions which constituted fraud, duress, coercion or
undue influence, and that she specifically did not use excessive importunity, verbal abuse,
intimidation or threats which were directed at the Plaintiff.
19. Denied. It is specifically denied that any of the alleged acts committed by the
Defendants occurred at all, let alone at or near the time of the execution of the Deed, and for any
period prior thereto.
20. Denied. It is specifically denied that any of the aforesaid acts which were
allegedly committed by the Defendants and directed to the Plaintiff ever occurred. It is
specifically denied that Defendants had any intent to force the Plaintiff to execute the Deed to
give her real estate to the Defendants. to the contrary, it was the Plaintiffs wish and desire to
transfer the real estate in question to the Defendants and she did so as a free act and of her own
volition.
21. Admitted in part; denied in part. It is admitted that the Defendants have refused
to deed back the property to the Plaintiff. It is denied that there were repeated demands made by
the Plaintiff for the return of the real property. To the contrary, the first demand for the return of
the real property did not occur until the Plaintiff filed her Complaint beginning the present
action.
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NEW MATTER
22. Plaintiff has failed to state a cause of action upon which relief can be granted.
23. Plaintiff resided at 40 Creekside Drive, Enola, Cumberland County, Pennsylvania,
from the time of transfer on or about June 9, 2000, through the present.
24. Plaintiff had a massive stroke on December 28,2000, during the night into the
morning of December 29, 2000.
WHEREFORE, Defendants respectfully request that the Plaintiffs Complaint be
dismissed and attorneys' fees and costs be assessed against the Plaintiff, as well as any other
relief this Court deems appropriate.
Respectfully submitted,
TUCKERARENSBERG & SWARTZ
By:
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Dennis R. ~heaffer
Attorney J.D. #39182
III North Front Street
P.O. Box 889
Harrisburg, P A l7108-0889
(717) 234-4121
Dated:
g/JpA-'1
Attorney for Defendants
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VERIFICATION
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I, the undersigned, KENNETH L. BRETZ, SR., do hereby certify that I am the
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DEFENDANT in the foregoing action, and that the statements made in the foregoing ANSWER
WITH NEW MATTER are true and correct to the best of my knowledge, information and
belief I understand that any false statements made to this verification are subject to the penalties
of 18 Pa. C.S.A. S4904, relating to unsworn falsification to authorities.
DATE: 'if J~{) )tJ(
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I, the undersigned, GAIL ILENE BRETZ, do hereby certify that I am the
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DEFENDANT in the foregoing action, and that the statements made in the foregoing ANSWER
WITH NEW MATTER are true and correct to the best of my knowledge, information and
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GAIL ILENE BRETZ
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CERTIFICATE OF SERVICE
AND NOW, this c{m dayof t(~~ ,2001,PAULAJ.BEITER,
for the firm of TUCKER ARENSBERG & SWARTZ, attorneys for Defendants, hereby certify
that I have this day served the within document by depositing a copy of the same in the United
States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows:
James W, Kollas, Esquire
Kollas and Kennedy
ll04 Fernwood Avenue
Suite 104
Camp Hill, PA 17011
C7~ if, !3~
PAULA J. BEI'ltER
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MARY A. BRETZ,
Plaintiff
:IN THE COURT OF COMMON PLEAS OF
:CUMBERLAND COUNTY, PENNSYL V ANlA
V.
:DOCKET NO. 01-1287 Equity Term
KENNETH 1. BRETZ, SR. and
GAIL ILENE BRETZ,
Defendants
:CIVIL ACTION. EQillTY
REPLY TO NEW MATTER
22. Denied as constituting a conclusion of law to which a responsive pleading is not
required under the Rules of Civil Procedure.
23. Admitted in part and denied in part. It is admitted that Plaintiff, Mary A. Betz,
resided at 40 Creekside Drive, Enola, Cumberland County, Pennsylvania from the time of the
transfer until or around December 28, 2000. It is denied that Plaintiff, Mary A. Bretz, resided at
said address from December 28, 2000, until or around, Apri12, 2001.
24. Admitted in part and denied in part. It is admitted that on or around December 28,
2000, Plaintiff, Mary A. Bretz suffered a stroke. It is denied that said stroke was "massive." By
way of further reply, P1ainti:ff, Mary A. Bretz, has substantially recovered from said stroke.
WHEREFORE, Plaintiff reaffirms her demand for relief as outlined in her Complaint.
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RESPECTFULLY SUBMITTED:
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William C. Kollas, Esquire
Supreme Court 1.0. No. 06341
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"James W. Kollas
Supreme Court 1.0. No. 81959
KOLLAS AND KENNEDY
1104 Fernwood Avenue
Suite 104
CampHill,PA 17011
(717) 731-1600
ATTORNEYS FOR PLAINTIFF
Dated: q\4\D\
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MARY A. BRETZ,
Plaintiff
:IN THE COURT OF COMMON PLEAS OF
:CUMBERLAND COUNTY, PENNSYLVANIA
v.
:DOCKET NO. 01-1287 Equity Term
KENNETH L. BRETZ, SR. and
GAIL ILENE BRETZ,
Defendants
:CIVIL ACTION - EQUITY
VERIFICATION
I, Mary A. Bretz, the plaintiff herein, verify that the statements made in the foregoing
Reply To New Matter are true and correct to the best of my knowledge, infurmation, and belief.
I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. ~4904,
relating to unsworn falsification to authorities.
By. fJl~ (l ~
Mary A retz
DATE: q\4\cl
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MARY A. BRETZ,
Plaintiff
:IN THE COURT OF COMMON PLEAS OF
:CUMBERLAND COUNTY, PENNSYLVANIA
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KENNETH 1. BRETZ, SR. and
GAIL ILENE BRETZ,
Defendants
:CIVIL ACTION - EQUITY
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C:KRTIFICA'Q!: OF SERVICE
Dennis R. Sheaffer, Esquire
TUCKER, ARENSBERG & SWARTZ
111 N. Front Street
P.O. Box 889
Harrisburg, PA 17108-0889
Attorney for Defendants
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A1.h I, CarOle A. Rose, ofthe Law Offices ofKollas and Kennedy, hereby certify that I
have this ~ day of ~ ~ 'r\.. ~ 'V , 2001, served a true and correct copy ofREPL Y
TO NEW MATTER by depositing same in the United States mail, first class, postage prepaid,
addressed to the following:
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LAW OFFICES OF KOLLAS AND KENNEDY
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BY:
Carole A. Rose
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MARY A. BRETZ,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 01-l287 EQUITY TERM
KENNETH L. BRETZ, SR. AND
GAIL ILENE BRETZ,
Defendants
CIVIL ACTION - EQUITY
PRAECIPE TO DISCONTINUE
TO THE PROTHONOTARY:
Please discontinue the civil suit against Kenneth L. Bretz, Sr., and Gail Ilene Bretz
in the above-captioned action with prejudice.
ames W. Kollas, Esquire
Supreme Court J.D. # 81959
KOLLAS AND KENNEDY
1104 Fernwood Avenue
Camp Hill, PA 17011
Phone: (7l7) 73l-1600
ATTORNEY FOR PLAINTIFF
DATED: Q\LR\Olp
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