HomeMy WebLinkAbout03-2613WILLIAM D. BURNS,
Plaintiff
V.
CONNIE KIRKESSNER,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 93- 6t3
CIVIL ACTION - LAW
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 THIS PAPER TO YOUR LAWYER AT ONCE. IF
YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR
TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU
CAN GET LEGAL HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
WILLIAM D. BURNS, : IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff :
: NO.
V.
: CIVIL ACTION - LAW
CONNIE KIRKESSNER, :
:
:
Defendant :
COMPLAINT
AND NOW, comes the above-named Plaintiff, by and through his attorney, Jay R.
Braderman, Esquire, and complains of the following:
1. Plaintiff is William D. Bums, an adult individual, who currently resides at
921 Woodridge Drive, Enola, Cumberland County, Pennsylvania, 17025.
2. Defendant is Connie Kirkessner, an adult individual, who resides at 245
Windy Hill Road, Shermans Dale, Perry C6unty, Pennsylvania, 17090.
Plaintiff and Defendant were formerly husband and wife but were divorced
o
in 1991.
4.
Two children were bom of the marriage between Plaintiff and Defendant,
Michael William Bums, bom October 3, 1976, now 26 and Stephanie Lee Bums, bom
October 24, 1984, now 18 years of age.
5. Pursuant to a Marital Settlement Agreement dated August 1, 1991 between
Plaintiff and Defendant, Paragraph 10.B. thereof, the proceeds from the sale of a real estate
investment property were to be divided between the parties with those proceeds to be
equally allocated to the higher education expenses for the parties' children. Said Marital
Settlement Agreement is attached hereto and made a part hereof as Exhibit A.
6. By letter dated June 2, 1995 from Paul Esposito, Esquire, Defendant's then
attorney, to Jan L. Brown, Esquire, Plaintiff's then attorney, Mr. Esposito reminded the
Plaintiff of his obligation to deposit the net proceeds from the sale of the investment
property into a joint account and make distribution thereof. A copy of the letter from Mr.
Esposito to Ms. Brown is attached hereto and made a part hereof as Exhibit B.
7. Pursuant to Paragraph 10.B. of the Marital Settlement Agreement, and after
said investment property was sold, Plaintiff, by his letter dated April 1, 1996, sent
Defendant a check for $13,775.14, the proceeds of which check Defendant was obligated to
deposit and save for the benefit of Stephanie Bums' higher education costs. A copy of said
letter of April 1, 1996 and attached check is appended hereto as Exhibit C.
8. William Bums, pursuant to the Marital Settlement Agreement, Paragraph
10.B. thereof, utilized the proceeds from the sale of said property to help pay for the higher
education costs of his son, Michael William Burns, who attended Shippensburg University.
9. The parties' daughter, Stepl~anie L. Bums, is about to graduate high school
and has been accepted and will be attending Central Penn College. Plaintiff has made
inquiry of the Defendant as to the present balance of the proceeds from the sale of the
SEPARATION AlgD PROPERTY SETTLEMENT AGREEMENT
THIS AGREEMENT, made this _/~/ day of
1991, by and between WILLIAM D. BURNS, (hereinafter referred to as
"Husband" ) and CONlgI E L. BURNS, (hereinafter referred to as
"Wife") .
WITNESSETH:
WHEREAS, the parties hereto are Husband and Wife having
been married on June 25, 1972 at Middletown, Pennsylvania; and
WHEREAS, two children were born of this marriage, said
children being Michael William Burns, born October 3, 1976 and
Stepha~ie Lc.a EL~ , ....... , ~.. ~
............... ~-~ 24, 198~;
WHEREAS, certain differences, disputes and difficulties
have arisen between the parties as a result of which they intend to
live separate and apart for the rest of their natural lives, and
are desirous of settling fully and finally their respectiQe
financial and property rights and obligations as between each
other, including, without limitation by specification: the
settling of all claims between them relating to the ownership and
equitable distribution of their 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 by Wife; the implementation of custody arrangements
for the minor children of the parties; and, in general, the
EXI{IBIT A
settling of any and all claims and possible claims by one against
the other or against their respective estates.
NOW THEREFORE, in consideration of the mutual promises
and undertakings hereinafter set forth, Husband and Wife each
intending to be legally bound and to legally bind their heirs',
successors and assigns hereby promise and agree as follows:
1. SEPARATION
Husband and Wife shall at all times have the right to
live separate and apart from each other and to reside from time to
time at such place or places as they shall respectively deem fit,
free from any control, restraint or interference whatsoever by the
other, sub]ec~ to un~ ~urther provisions of This Agreement.
2. HUSBAND,S DEBTS
Husband represents and warrants to Wife that he has not,
and in the future, will not contract or incur any debt or liability
for which Wife or her estate might be responsible and shall
indemnify and save Wife harmless from any and all claims or demands
made against her by reason of debts or obligations incurred by him.
3. WIFE,S DEBTS
Wife represents and warrants to Husband that she has not,
and in the future, will not contract or incur any debt or liability
for which Husband or his estate might be responsible and shall
indemnify and save Husband harmless from any and all claims or
demands made against him by reason of debts or obligations incurred
by her.
4. OUTSTA/qDING JOINT DEBTS
Husband and Wife acknowledge and agree that they have no
debts which were jointly incurred during their marriage with the
exception of the mortgages against the real estate which are more
fully described in Paragraph 11 of this Agreement and those which
are set forth and more fully described in this paragraph.
The parties have outstanding joint obligations to
MasterCard; Sears, Roebuck and Co.; Discover; and, an orthodontic
bill. The parties agree that the foregoing obligations which were
jointly incurred will be paid from their 1990 federal income tax
refund ~nd any remainimg funds shall be divided e~]all~,. Each of
the parties shall be responsible for his or her own charges on
those accounts, including but not limited to the purchase amounting
to $74.03 which Husband made subsequent to the parties' separation.
All credit card accounts on which both parties may charge purchases
shall be closed immediately.
5. DIVISION OF PERSONAL PROPERTY
Husband and Wife have agreed to a division of all of
their personal property in accordance with the following: Those
items now in the possession of Wife and those items which are
listed in Schedule "A", which is attached hereto and made a part of
this Agreement, shall be the sole and separate property of Wife and
Husband releases and relinquishes any and all rights he may
3
otherwise have to the items of personal property which are already
in Wife's possession and which are set forth in Schedule "A"
Husband shall be the sole and exclusive owner of all other items of
personal property heretofore owned by the parties and Which are in
his possession. Wife releases and relinquishes any and all rights
she may otherwise have to said items of personal property. The
items listed in Schedule "A" shall be turned over to Wife within
thirty (30) days of the date of execution of this Agreement.
6. MOTOR VEHICLES
Husband shall retain and be the sole owner of the Pontiac
Grand Am, 1979 GMC truck and Shasta camper. Wife shall retain and
be the sole owner of the 1988 Chevrolet Corsica and Wife shall be
solely responsible for the loan at the Belco Credit Union incurred
for the purchase of the 1988 Chevrolet Corsica and shall indemnify
and hold Husband harmless from any liability with respect to said
loan.
7. BANK ACCOUNTS, CREDIT UNION ACCOUNTS,
INDIVIDUAL RETIREMENT ACCOUNTS, COMPANY
SAVINGS ACCOUNTS AND PENSION PLANS AND BENEFITS
Husband and Wife hereby acknowledge that monies and
benefits have accrued in certain of their bank accounts, credit
union accounts, individual retirement accounts, company savings
accounts, pension plans and other similar accounts. The parties
hereby agree that Wife shall be the sole owner of Belco Account No.
56200 and Husband shall be the sole owner of Belco Account No.
11707. Husband's name shall be removed as joint owner of the
accounts on which Michael and Stephanie's names appear and these
accounts shall be maintained by Wife exclusively for the benefit of
the children.
Husband shall be the sole owner of the two savings
accounts and checking account at the Marysville Bank. The accounts
at the Marysville Bank in the names of the children shall be
maintained by Husband for the exclusive benefit of the children.
Each party shall retain as his or her own separate
property any individual retirement account, employment savings
account, retirement and pension benefits and any other similar
benefits which they currently own. Husband hereby waives and
~e!inqulshes to Wife all of his right, title and interest, it any
he has, in and to the accounts, retirement benefits and other
similar accounts which by virtue of this Agreement are to be the
sole and separate property of Wife and Wife hereby waives and
any she has, in and to the accounts, retirement benefits and other
similar accounts which by virtue of this Agreement are to be the
sole and separate property of Husband.
8. SAVINGS BONDS
Husband and Wife hereby agree that all of the United
States Savings Bonds purchased by Wife or received by Wife through
her employment, shall be and remain her sole property. Husband
5
hereby waives and relinquishes all of his right, title and
interest, if any he has, in and to said United States Savings
Bonds. All savings bonds which were purchased for Stephanie shall
be retained by Wife and all savings bonds which were purchased for
Michael shall be retained by Husband. The parties agree that none
of the bonds which were purchased for the children may be cashed by
either parent unless the proceeds are applied toward higher
education expenses or a.large purchase, such as an automobile. In
any event, prior to cashing any of the bonds which are held for
Michael and Stephanie, prior approval must be granted by both
parents for the expenditure.
9. LIFE INSURANCE
The parties acknowledge that they have purchased four
policies of life insurance from the Penn Mutual Life Insurance
Company. The parties agree that those policies on which Husband or
Wife are the insured parties shall be changed so that the
beneficiaries are Michael and Stephanie. The beneficiary
designation on those policies on which the children are the insured
parties shall be Husband and Wife. The children's insurance
policies shall be retained by Wife. None of the foregoing policies
may be canceled, cashed or encumbered until the younger child
attains age twenty-two (22) years. At that point, the individual
owner of each policy may decide the disposition of the given
policy. Husband shall be responsible for payment of the premium on
the policy of which he is the insured and the payroll deduction
arrangement for payment of the premium which is presently in effect
shall be terminated. Wife shall be responsible for payment of the
premium on the policy of which she is the insured and for the
policies on which Stephanie and Michael are the insuredso
10. DIVISION OF I~EAL ESTATE
A. Wife hereby transfers to Husband all of her right,
title and interest in the jointly owned real estate known and
numbered as 921 Woodridge Drive, Enola, Cumberland County,
Pennsylvania. Husband shall assume sole responsibility for payment
of the existing mortgage from Homestead Savings which is an
encumbrance of record against said real estate. Husband shall also
be solely responsible for and hold Wife harmless from all real
estate taxes, insurance, assessments and other charges payable in
connection with the said real estate, including the aforesaid
mortgage.
B. Wife hereby transfers to Husband all of her rig~,
title and interest in the jointly owned real estate known and
numbered as 213 Susquehanna Avenue, Enola, Cumberland County,
Pennsylvania. Husband shall assume the responsibility for payment
of the existing mortgage from York Federal Savings & Loan
Association, which is an encumbrance of record against said real
estate. Husband shall be solely responsible for and hold Wife
harmless from all real estate taxes, insurance, assessments and
7
other charges payable in connection with the said real estate,
including the aforesaid mortgage. If Husband should sell said real
estate, all of the proceeds remaining after payment of the mortgage
and closing costs shall be deposited in a joint account with Wife
and said funds shall be used exclusively for payment of the higher
education expenses incurred by and for the children. Said funds
shall be allocated equally between the children. In the event one
or both of the children fails to pursue a program of higher
education, the one-half share shall be distributed to that child
upon reaching age twenty-two (22) years. Further, should Husband
fail to sell the real estate, he shall be solely responsible for
payment of Michael's higher education expenses and Wife shall be
solely responsimle ~- pdyme~ ~ o~=phanie.s nigher education
expenses. In the event the funds which are made available by the
sale of the real estate are insufficient to fully cover said
expenses, Husband shall be solely responsible for the balance of
of Stephanie.
11. CUSTODY
Husband and Wife shall have shared legal custody of their
children, Michael William Burns and Stephanie Lee Burns. Husband
shall have primary physical custody of Michael and Wife shall have
primary physical custody of Stephanie. The parties shall have such
rights of partial physical custody as they from time to time agree
8
upon and arrange, with the understanding that'said rights shall be
liberal, flexible and reasonable; however, at a minimum, .the
children will spend the weekends together with each parent on an
alternating basis and each parent shall have the children together
during the summer for a period not to exceed one month.
Husband shall be entitled to declare Michael as a
dependent for federal income tax purposes and Wife shall be
entitled to declare Stephanie as a dependent for federal income tax
purposes.
Wife shall maintain medical and dental insurance coverage
for the children so long as it is provided as presently by her
employer. However, effective with the date of issuance of a final
uecre~ i~ Divorce, Wife shall no longer be responsible
maintaining medical or dental insurance coverage for Husband's
benefit.
Husband shall be solely responsible for payment of any
solely responsible for payment of any future orthodontic expenses
for Stephanie.
12.
EQUITABLE DISTRIBUTION OF MARITAL PROPERTY,
SPOUSAL SUPPORT, ALIMONY, ALIMONY PENDENTE
LITE AND COUNSEL FEES
Husband and Wife acknowledge and agree that the
provisions of this Agreement providing for the division of their
marital property are fair, adequate and satisfactory to them and
9
conform to the criteria set forth in the Pennsylvania Divorce Code,
as amended, taking into account all relevant considerations,
including those set forth in Section 401 of the Pennsylvania
Divorce Code, as amended. Husband and Wife further agree to accept
the provisions set forth in this Agreement in lieu of and in full
and final settlement and satisfaction of all claims and demands
that either may now or hereafter have against the other for
equitable distribution of marital property, spousal support,
alimony, alimony pendente lite and counsel fees. Each party shall
indemnify, defend and hold the other harmless against any future
action for equitable distribution of marital property, alimony,
alimony pendente lite or counsel fees, such indemnity to include
the actual counsel fees of the successIul party in any such future
ac=_on. Husband and Wife acknowledge that Wife has instituted an
action in divorce against Husband, which action is docketed to No.
1189 Civil 1991 in the Court of Common Pleas, Cumberland County,
~ ....... ~'~-~--~..~- Wi~ ~ ..... ~ ~ ~ ~i~n and the
parties agree that each will execute an appropriate Affidavit of
Consent immediately upon expiration of the mandatory ninety (90)
day waiting period.
13. DATE OF EXECUTION
The "date of execution" or "execution date" of this
Agreement shall be defined as the date upon which it is executed by
the parties if they have each executed the Agreement on the same
10
date. Otherwise, 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.
14. AGREEMENT TO SURVIVE DIVORCE DECREE
This Agreement shall survive the decree of divorce
contemplated by the parties and shall be entirely independent
thereof. The parties intend that all obligations contained herein
shall retain their contractual nature in any enforcement
proceedings, whether enforcement is sought in an action on the
contract itself or in any enforcement action filed to the divorce
caption.
15. ADVICE OF COUNSEL
The provisions of this Agreement and their legal effect
have been fully explained to Wife by her counsel, Paul J. Esposito,
Esquire. Husband acknowledges that he has had the opportunity to
explained to him by legal counsel of his choice. The parties
confirm that they both fully understand the terms, conditions and
provisions of this Agreement and believe them to be fair, just,
adequate and reasonable under the existing circumstances. The
parties further confirm that each is entering into this Agreement
freely and voluntarily and that the execution of this Agreement is
not the result of any duress, undue influence, collusion or
improper or illegal agreement or agreements.
11
either p~rty ever had or now has against the other.
17. FINANCIAL DISCLOSURE
The parties represent to each other that they have fully
disclosed their income, assets, liabilities, holdings and estate.
18. WAIVER OR MODIFICATION TO BE IN WRITINC
No modification or waiver of any of the terms of this
Agreement shall be valid unless in writing and signed by both
parties.
19. NO WAIVER OF DEFAULT
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 enforce the same.
20. LAW OF PENNSYLVANIA APPLICABLE
This Agreement shall be construed in accordance with the
Commonwe~!th ef Pennvi-!vania~
21. AGREEMENT BINDING ON HEIR~
Except as may otherwise be provided, this Agreement shall
be binding and shall inure to the benefit of the parties hereto and
their respective heirs, executors, administrators, successors and
assigns.
22. INTEGRATION
This Agreement constitutes the entire understanding of
13
the parties and supersedes any and all prior agreements
negotiations between them. There are no representations
warranties other than those expressly set forth herein.
and
or
23. OTHER DOCUMENTATION
Husband and Wife covenant and agree that they will, (not
more than ten (10) days after demand therefor), execute any and all
written instruments, assignments, releases, satisfactions, deeds,
notes or other such writings as may be necessary or desirable for
the proper effectuation of this Agreement.
24. SEVERAB____ILITY AI~D INDEPENDENT AND SEPARATE COVE__NANTS
The parties agree that each separate obligation contained
in unis Agreement shall be deemed to De a sep~rane unu independeht
covenant and agreement. If any term, condition, clause or
provision of this Agreement shall be determined or declared to be
vuid or invalid in law or otherwise, then only that term,
~~n~ ~!~'~se or provis~nn sh~!] ~^ s~~ .... .
--' ~ ............ from +h~
Agreement and in all other respects this Agreement shall be valid
and continue in full force, effect and operation.
25. ~EADINGS NOT PART OF AGREEMENT
Any headings preceding the text of the several paragraphs
and subparagraphs hereof are inserted solely for convenience of
reference and shall not constitute a part of this Agreement nor
shall they affect its meaning, construction or effect.
14
26. ~TTORNEYS FEES FOR E~ORCEMENT
In the event that either party breaches any part of this
Agreement and the other party retains counsel to assist in
enforcing the terms hereof, the parties hereby agree that the
breaching party shall pay all attorney,s fees and court costs
incurred by the other party in enforcing the Agreement, providing
the enforcing party is successful in establishing that a breach has
occurred.
IN WITNESS W/~EREOF, the parties hereto have set their
hands and seals the day and year first above written.
WITNESSETH:
CONNIE L. BURNS
_(SEAL)
15
SCHEDULE "A"
Dresser in Stephanie,s bedroom
Toy boxes
Organ & Bench
Porch Swing & Tire Swing
Round table in dining room
Bo Peep & Sheep
Bird feeder
Cats & Kittens cro~k
Antique sled in lawn shed
Animal collection
Music box collection
Denim Days collection & Picture
Princess House collection
Grandmothers clock
Exercise bike
Kenny picture
Books (Danielle Steele, yearbook, etc.)
VCR tapes (selected ones)
Records (albums, etc.)
Canister set, clock and plaques (Connie made)
Christmas decorations ~sei~d-one~j
Boxes in attic of garage (selected ones)
Baby items in attic of garage
Stephanie,s kitchen set
Stephanie,s table and chairs
Stephanie,s desk
Stephanie,s toys (selected ones-mainly those that were Connie,s)
Stephanie,s Barbie car and charger
LAW OFFICES
GOLDBERG, I{~.TZI~I~.N ~c SHIP~I.~N, ]D.C.
320 bL&iRKET STREET
STRAW-BERRY SOU,*, RE
P. 0. BOX 1268
HARRISBURG, pE~XII~$YLVANIA 17108-1268
TELEPHONE (717) ~04-4161
F~ (717) 234-6808
June 2, 1995
AI~THUR L.
OF COUNSEL
YORK OFFICE:
(717) 843 -79l;:'
(CORRESPONO TO
HARRISBURG
JAN L. BROWN, ESQUIRE
845 SIR THOMAS COURT
SUITE I IA
HARRISBURG, PA 17109
Re: Connie Kirkessner/William D. Burns
Dear Jan-
In a recent conversation with Connie Kirkessner, I was informed that a "for sale"
sign has been placed at the 213 Susquehanna Avenue, Enola property. The disposition of any
funds realized from the sale of this property is addressed in the parties' Separation and Property
Settlement Agreement of August 1, 199l, and more specifically in Paragraph 10B. I have
enclosed a copy of the Agreement for your convenience.
As you will see, this provision obligates the parties to deposit the net proceeds
in a joint account and are to be used exclusively for payment of the higher education expenses
incurred by and for the children, with an equal allocation between them.
Would you kindly remind Mr. Burns of the commitment he has made under the
Agreement. We expect him to comply with the Agreement, and in so doing, keep us intbrmed
of the sale efforts and to verify the actual net proceeds realized from the sale.
Please confirm Mr. urns intention to comply with the Agreement so protective
B '
E~HIBIT B
Jan L. Brown, Esq.
-2-
June 2, 1995
PJE/vyc
Enclosure
action need not be taken in Ms. Kirkessner's behalf.
Thank you for your consideration and attention to this matter.
Yours very truly,
cc: Connie Kirkessner
Monday, April 01, 1996
CONNIE KIRKESSNER
5 DEEP POND CT.
NEW FREEDOM, PA 17349
CONNIE:
ATTACHED PLEASE FIND A COPY OF THE FINAL TAX BREAKDOWN IN REGARDS TO THE
SALE OF THE RENTAL PROPERTY AT 213 SUSQUEHANNA AVE., ENOLA.
AS YOU WILL SEE THE TOTAL TAX LIABILITY FOR THE GAIN ON THE PROPERTY AND
INTEREST EARNED ON THE PROCEEDS TOTALS $14,910.00
A FINAL BREAKDOWN IS AS FOLLOWS:
TAXES
ACCOUNTING FEE FROM SEPT 5, 1995
ELECTRICAL BOX AND PARTS
BREAKERS
GROUND ROD AND WIRE
ELECTRICAL INSPECTION
JULY PAYMENT
TOTAL COSTS
PROCEEDS FROM SALE
1995 INTEREST EARNED
JAN 96 INTEREST EARNED
FEB 96 INTEREST EARNED
ESTIMATED MARCH INTEREST
TOTAL PROCEEDS
LESS TOTAL COSTS
TOTAL
AMOUNT TO MIKE AND STEPH
$13,775.14 EACH
$14,910.00
$ 15.00
$ 171.73
$ 17.40
$ 22.28
$ 40.00
$ 373.00
$15,549.41
$41,111.87
1,235.00
263.26
239.55
250.00
$43,099.68
$15,549.41
$27,55O.27
ALONG WITH THIS BREAKDOWN IS A CHECK FOR STEPH IN THE AMOUNT OF $13,775.14
WHICH IS TO BE PLACED IN AN INVESTMENT PROGRAM FOR STEPH'S FUTURE
COLLEGE NEEDS. THIS IS TO BE A JOINT ACCOUNT WHEREBY WITHDRAWALS NEED
TO HAVE BOTH MOTHER'S AND FATHER'S APPROVAL.
ACKNOWLEDGMENT OF RECEIPT OF FUNDS -~."71 ('~,'~.. ~/.'-'_~/..~,~....;,.,~. X/-,~--_ ~,
CONNIE L. KIRESSNER DAT-'C'E--'~
Sincerely,
Bill Burns
EXHIBIT C
Monday, April 01, 1996
CONNIE KIRKESSNER
5 DEEP POND CT.
NEW FREEDOM, PA 17349
CONNIE:
ATTACHED PLEASE FIND A COPY OF THE FINAL TAX BREAKDOWN IN REGARDS TO THE
SALE OF THE RENTAL PROPERTY AT 213 SUSQUEHANNA AVE., ENOLA.
AS YOU WILL SEE THE TOTAL TAX LIABILITY FOR THE GAIN ON THE PROPERTY AND
INTEREST EARNED ON THE PROCEEDS TOTALS $14,910.00
A FINAL BREAKDOWN IS AS FOLLOWS:
TAXES
ACCOUNTING FEE FROM SEPT 5, 1995
ELECTRICAL BOX AND PARTS
BREAKERS
GROUND ROD AND WIRE
ELECTRICAL INSPECTION
JULY PAYMENT
TOTAL COSTS
PROCEEDS FROM SALE
1995 INTEREST EARNED
JAN 96 INTEREST EARNED
FEB 96 INTEREST EARNED
ESTIMATED MARCH INTEREST
TOTAL PROCEEDS
LESS TOTAL COSTS
TOTAL
AMOUNT TO MIKE AND STEPH
$13,775.14 EACH
$14,910.00
$ 15.00
$ 171.73
$ 17.40
$ 22.28
$ 4O.OO
$15,549.41
$41,111.87
$ 1,235.00
$ 263.26
$ 239.55
$ 250.OO
$43,099.68
$15,549.41
$27,550.27
ALONG WITH THIS BREAKDOWN IS A CHECK FOR STEPH IN THE AMOUNT OF $13,775.14
WHICH IS TO BE PLACED IN AN INVESTMENT PROGRAM FOR STEPH'S FUTURE
COLLEGE NEEDS'. THIS IS TO BE A JOINT ACCOUNT WHEREBY WITHDRAWALS NEED
TO HAVE BOTH MOTHER'S AND FATHER'S APPROVAL.
ACKNOWLEDGMENT OF RECEIPT OF FUNDS
CONNIE L. KIRESSNER DATE
Sincerely,
Bill Burns
5EI II or1 ACCOUN I^J'l I
BARRY DEAN HOSTETTER
Ellis Lee Hostetter
CERTIFIED PUBLIC ACCOUNTANT
134 CUMBERLAND STREET
LEBANON, PA 17042
PI IOI',IE~ II1-~1.I.81~1
F;O(: 717 - 273-8220
March 22, 1996
Mr. William D. Burns
921 Woodridge Dr.
Enola, PA 17025-1547
Dear Mr. Burns :
The Federal and PA Income taxes on the property you sold
and interested earned on cash invested are as follows :
Sale of Property
Cost of Property and Improvements
Depreciation taken
$ 38,801.
25,926.
$ 65,000.
Settlement costs
Basis of property
Gain on Property
$ 12,875.
6,076.
18,951.
$ 46,049.
Federal tax on gain
PA tax on gain
Interest'earned on cash : 1235.
Federal tax on interest
PA tax on interest
$ 13,203.
1,289.
383.
35.
Total Taxes
$ 14,910.
Any questions, please do not hesitate to contact me.
Yours truly,
~ ;
ELLIS LEE HOSTETTER
Certified Public Accountant
JAY R. BRADERMAN
ATTORNEY AT LAW
126 LOCUST STREET
P. O. BOX 11489
HARRISBURG, PENNSYLVANIA 17108-'1489
(717) 232-6600
TELEFAX (717) 238-3816
February 14. 2003
Paul J. Esposito. Esquire
Goldberg Katzman & Shipman P.C.
~_0 Market Street
P.O. Box 1268
tlarrisburo PA 17108-1268
Rose Ann Fritz
Legal Assistant
[)ear Paul:
RE' Connie Kirkessner and William D. Burns
Bill Burns has recently come to my ol'fice to discuss v, hat he believes is
Connie Kirkessner's refusal to lblloxv certain terms oF a Separation and Propert,.-
Settlement Agreement dated August I. 1991 that was apparently prepared by you.
You had represented Connie Kirkessner and I am ',wiring this to make inquiry
whether you still represent her.
You may recall under Paragraph 10.B. ol'the Marital Settlement Agreement
that il' Mr. Bums. my client, sold a rental property at 213 Susqt~ehanna Avenue itl
l'~nola, tile net proceeds fi'om that sale were to be divided between the parties' txvo
children with those proceeds investecl tbr the post high school education needs of
thc children, ltl tile spring ot'1996, thc rental property sold and a check was issued
to Connie L. Kirkessner and Stephanie L. Bums (the parties' daughter) itl thc
amount o1'$13.775.14. A check lbr tile same amount was issued to Bill Burns and
his son. Subsequent to the issuance of tile check to Mr. Burns. those proceeds
were used to send the parties' son. Michael. to Shippensburg University. It is now
time tbr Stephanie to attend an institution oF higher learning and it is contemplated
that she will be attencling Central Penn College and a deposit has already been
remitted to that institution.
Inquiry has been made of Stephanie's mother. Connie Kirkessner. to
determine whether tile proceeds thom tile sale ol'that property are no,,',,' available to
EXHIBIT D
Paul J. Esposito. Esquire
Februao' 14. 2003
Page Two
Stephanie as well as any interest that accrued thereon. Connie will not .oive a
response as to the availability of those funds. ~
If you would check your file. you will note there is a letter from you to Mr.
Burns' then attorney, Jan Broxvn. d~tted Jtme 2. 1995 in which you remind Mr.
Burns of the commitment to deposit net proceeds from the sale of the rental
property, which fimds "are to be used exclusively tbr payment of the higher
education expenses incurred by and for the children, with an equal allocation
between them".
x,\;e are hopeful that this can be settled amicably and that your client will
give an accounting and make the appropriate funds nra'liable to St~phanie. If she
refuses, please advise Connie that xvt intend to pursue all appropriate remedies to
make those funds available to Stephanie and will also pursue thc remedy under
Paragraph 26 of the Agreement ibr payment of Mr. Burns' attorney's tees'if he is
successful in cnlbrcing Paragraph 10.B. of thc Agreement.
Please discuss this with Mrs. Kirkcssner and please contact me if indeed
you still represent her or contact me to advise me ti'mt you do not and then I will
have to communicate clirectly with her. If you have any questions, do not hesitate
to contact me. 1 look lbrward to hearing fi'om you.
Very truly yours.
J RB/ra f
cc: Bill Burns
Jay R. Braderman
ILS. Connie Kirkcssncr's ct, trent address is 245 Windy Hill Road. Shermans Dale.
PA 17090. her telephone number is (717) 582-0531
JAY R. BRADERMAN
ATTORNEY AT LAW
126 LOCUST STREET
P. O. BOX 11489
HARRISBURG, PENNSYLVANIA ~7108-1489
(717) _3_4~f ( 0
I'EIJiF..\X (TIT) '"" '
_.,8-3816
Rose Ann Fritz
I e~,~ I A,q,,tant
March 24. _00.)
Paul .I. Esposito. Esquire
Goldberg Katzmar~ & Shipman P.C.
a_0 Market Street
ILO. Box 1
_68
llarrisbur,, I'..\ 171(18-1268
l)car I'aul'
RI'i' £'onnic Kirkcssncr and ~,\'illiam 1). Burns
[ had v, ritlcn xou tm l"cbruarx 14.
each other at thc l)auphin Counlx Courthouse and
I'cSpolld to II1V letter as St}Oil ils VOLI heard [}'Olll VOtll' client.
In my of)inion, sul'ficicnt time has lapsed lb:' your client to give an
to our l"cbruarx 14. 2()()3 inquiry. I would appreciate rcccix'in,2 a response.
xxhcthcr Ihvorablc or unlhvorablc, within thc next couple el' %x-coke. If l do not
rcccix'c a response. I have been instructed by Mr. I}u:'ns to immediately seek legal
cnlbrccmcnt el'thc Agrccnlcllt. I look Ibmard to hearing Ii'om
,I I~I ~/':'a 1'
l{llcl{)sul'c
cc: l/ill l}ul'nS
EXHIBIT E
~Ir. Bill Bums
921 WoodbrMgo Drikc
t!noI:t. P..\ 17{125
l)ca!' I~,ill-
JAY R. BRADERMAN
ATTORNEY AT LAYY
126 LOCUST STREET
P. O. BOX 11489
[ [.ARRi_qBURG, [,' .....
I:NXb"t [.\ ,ASIA 17108-1489
(7I 7) 232-6600
-I'[!l.l![:,-\\ (717) -' ....
-.',SOS I u
.-\pr[l 9. 2003
[,lose Ann [:ritz
[ [la',c ,,,,. hm.[ :t rc>pon:,,c to m,. I,:ttcr ~I'
"J ~ it >,ti[[ ;.".2,1,11:,,[ Iwl' lot rcc~kcr} o1' tllt~sc IIh~!l C', ~,l~ .XOll C:!iI ["iI'qS [[1Clll
Oil t,'~ 5['..'[')ILJ. I~i ' Ill Or'dCI Itl C','qllIIICtlCC Sl..tit. [ '"",,t;tt[,.I HCCd at IltUllillA[ I'C[:l. iIlCi'
{.-'t;lllli',.'. [ :xt~tlJ,.[ i!l:-,t'~ FO. JL CSt tJl:.l[ ", Oil Sc..'llt. j lilt thc C,.~Ill[llC[C
\x'hich- hOi'%'l'tl[Jk. ILlS ;.I pm'.isi(m therein that shc, uld either party not adhere to thc
agreement then that p:u't.x is rcspol~siblc for paying thc other i'~m-tk 'S Io4a[ fCC.', S[h)UJd kvC
bc succcssl'u[ ill kxinning the suit. '
ctmtact mc ~11),.[ XkC Xkill disctt>,s kkh:tt'nccds t<, bc done.
\'t~'U.
]11 ;..III',. C\ t_'II[, pJc,:.t.-;C
I loci< ~'q'\kHrd tO JlcLtrillg
.I R [~ 'ra l'
~IBIT F-
JAY R. BRADERMAN
ATTORNEY AT LAW
126 LOCUST STREET
P. O. BOX 11489
t-[ARR[SBURG, PENNS'YL\TANIA 17108-1489
(717) 232-6600
TEI.EFAX (717) 238-3816
April 21. 2003
I '1.4 CERTIFIED :11.4 IL, RETUR,¥ RECEIPT REQUESTED A:\'D
L;.S. M.411_
Rose Ann Fritz
Legal .-\ssist,mt
3.1S. L'onnie Kirkcssner
245 \Vin,.Iv 1 lill
Sherm',ms l)alc. P..\ 171)Or)
l)car 3.Is. Kirkc~,sncr:
I'leasc be u,.Ixised ~hat I represent xour former htmband. \\'illiarn l). 13urns.
I~tu'suaI~t to a Nlarital Ncttlcmcnt .'Xurccment dated ,-Xuuust I. l Ot)l betk~ccn xou ttnd Nit.
13ut'ns. a check in the amotmt off ~13.775.14 was turned over to 3ou and the parties'
daughter. Stephanie I.. l~urns..~Xccording to thai same agreement, those lkmds were to be
retained bx you and the proceeds were to be re,dried to send Stephanie to a post-high
school lem'ning opportunit)'. XVo understand that Stephanie will be attendin~ Central
Penn ('ollcgc. Nlr. lgurns has inquired o1' you as to thc ax'ailubilitv of those l'uncls and is
tlllLIbJC lO oIMZIJll Llll [lllSkVCl' J~'Olll XOtl.
I hake x',rittcn x'otu' attornex, l)atd I!sposilo makin,, thc sumc inquiry as to the
avuilubilitv of those lkmcls and Xlr. l(spositio has inlk~rmed mc that he has not' received a
response l~'om you. That being the case. I can only assume that Nit'. t~sposito does not
{'cpt'csem~t xotm iH this matter and thus I am lakinu the Opl~ortunitx ot' xvritinu to
djrccllx'. [ LIra scHdjn,g u coD)of this ]crIer to NIt. l~sposito in case h~' still represents
and also to jnl~rm him o{'oLII' jntcnlions in lhjs malI¢l'.
I hax c informed Nlr. l~urns that should ~,~,'e ]'[O[ receive a satislhctory response and
evidence of Ibc availability of'those lkmcls, that an action should be brouuht auainst you
lk}r your rcl~sal to honor thc terms ol'the Nlarital Settlement Aurcemcnt Nlo'cover.
ptll'Stlalll to I~urugruph 26 off thc .-%orccmcnt. Mr. I)tu'ns max' also rccoxer his costs and
~tttoFnex's l)cs lk)l' xotw Fcl'uszd to hoHor the A~rccmcHt. ~,'ir. J~urHs nevcrt ~ele~s is
reluctant to commence suit il' xou xkould Drcsem us with a Ihvorablc response ulon,, with
EXHIBIT G
Ms. Connie Kirkessner
Apri] 21 _00a
Page T~vo
xour written promise to be solely responsible tbr Stephanie's college expenses. I trust l
will be hearin,3 fi'om you in the near l~tttmre and. of course if XOLt have an)questions, do
not hesitate to call this office.
.ll(.ll'ral'
cc: \\'illi:m~ I). t~;urn.,,
I)aul .I. t'isposito. I'isquirc
VERIFICATION
Upon my personal knowledge or information and belief, I hereby verify that the
facts averred in the foregoing Complaint are tree and correct to the best of my knowledge,
information, and belief. I understand that false statements herein made are subject to the
criminal penalties of 18 Pa.C.S. § 4904, relating to unswom falsification to authorities.
Date:
William D. Bums