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OSCAR HERNANDEZ,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 2001-6291
CIVIL TERM
JENNIFER R. SMITH,
Defendant
: CIVIL ACTION - LAW
: IN CUSTODY
AFFIDAVIT OF SERVICE
AND NOW, this 14th day of November 2001, comes Thomas S. Diehl, Esquire, Attorney
for the Plaintiff, Oscar Hernandez, and states that he had cause to be mailed a certified copy of a
Complaint for Custody to the Defendant, Jennifer R. Smith, by certified, restricted delivery,
return-receipt requested. A copy of said receipt is attached hereto indicating service was made
on November 10, 2001.
Respectfully submitted,
//
CL,1;f{J
Attorney for the Plaintiff
One West High Street, Suite 208
Post Office Box 1290
Carlisle, Pennsylvania 17013
(717) 240-0833
(717) 240-0893 - FAX
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or on the front If space permtts.
1. Article Adrlressed to:
JENNIFER R. SMITH
4615 SOUTH CLEARVIE'~ DRIVE
CAMP HILL, PA 17011
2, Article Number
(Transfer from service label)
PS Form 3811. March 2001
Domestic Return Receipt
102S95..01.M-1424
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OSCAR HERNANDEZ
PLAINTIFF
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
01-6291 CIVIL ACTION LAW
JENNIFER R. SMITH
DEFENDANT
IN CUSTODY
ORDER OF COURT
AND NOW, Thursday, Novemher 15, 2001 , upon consideration ofthe attached Complaint,
it is hereby directed that parties and their respective counsel appear before Jacqueline M. Verney, Esq. , the conciliator,
at 4th Floor, Cumberland County Courthouse, Carlisle on Wednesday, December 05, 2001 at 2:30 PM
for a Pre,Hearing Custody Conference. At such conference, an effort will be made to resolve the issues in dispute; or
if this cannot be accomplished, to define and narrow the issues to be heard by the court, and to enter into a temporary
order. All children age five or older may also be present at the conference. Failure to appear at the conference may
provide grounds for entry of a temporary or permanent order.
The court hereby directs the parties to furnish any and all existing Protection from Abuse orders,
Special Relief orders, and Custody orders to the conciliator 48 hours prior to scheduled hearing.
FOR THE COURT,
By: Isl
Jacqueline M. Verney. Esq. ~n/t
Custody Conciliator
The Court of Common Pleas of Cumberland County is required by law to comply with the Americans
with Disabilites Act of 1990. For information about accessible facilities and reasonable accommodations
available to disabled individuals having business before the court, please contact our office. All arrangements
must be made at least 72 hours prior to any hearing or business before the court. You must attend the
scheduled conference or hearing.
YOU SHOULD TAKE THIS PAPER TO YOUR ATTORNEY AT ONCE. IF YOU DO NOT
HAVE AN ATTORNEY 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, Pennsylvania 17013
Telephone (717) 249-3166
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OSCAR HERNANDEZ,
Plaintiff
v,
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO, 2001, c. J,9 I CIVIL TERM
JENNIFER R. SMITH,
Defendant
: CIVIL ACTION - LAW
: IN CUSTODY
ORDER OF COURT
AND NOW, this day of , 2001 upon consideration of the
attached Petition it is hereby directed that the parties and their respective counsel appear before
Esquire, the conciliator, at
, Pennsylvania, on the day of
, 2001, at o'clock .m. for a Pre-Hearing Custody
Conference. At such conference, an effort will be made to resolve the issues in dispute; or if this
cannot be accomplished, to define and narrow the issues to be heard by the Court, and to enter into
a temporary order. All child age five or older may be present at the conference. Failure to appear at
the comerence may provide grounds for entry of a temporary or permanent order.
FOR THE COURT:
By:
Custody Conciliator
YOU SIIOULD TAKE TIDS 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 HELP.
THE CUMBERLAND COUNTY BAR ASSOCIATION
2 LIBERTY AVENUE
CARLISLE, P A 17013
(717) 249-3166
1-800-990-9108
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OSCAR HERNANDEZ,
Plaintiff
v.
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 2001- U <J I CIVIL TERM
JENNIFER R. SMITH,
Defendant
: CIVIL ACTION - LAW
: IN CUSTODY
COMPLAINT FOR CUSTODY
I. Plaintiff is Oscar Hernandez, an adult individual currently residing at 115
Cranberry Road, Aspers, Adams County, Peunsylvania 17304.
2, Defendant is Jennifer R. Smith, an adult individual currently residing at 4615
South Clearview Drive, Camp Hill, Cumberland County, Pennsylvania 17011.
3. The Plaintiff is the natural Father of the child, Erica Hope Smith, born August 8,
1998.
4. The child was born out of wedlock.
5. Since birth, the child has resided with the following persons for the following
lengths oftime:
NAMF
Oscar Hernandez
Jennifer Smith
DATFS
Birth to
August 3,1999
Jeunifer Smith
August 3,1999 to
present
6. The natural Mother of the child is the Defendant, who resides as foresaid, She is
single,
7. The natural Father of the child is the Plaintiff, who resides as foresaid. He is
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single.
8, The relationship of the Plaintiff to the child is that of natural Father. The Plaintiff
currently resides with alone.
9. The relationship of the Defendant to the child is that of natural Mother. The
Defendant currently resides with the child. It is unknown whether the Plaintiff lives with anyone
other than the child.
10. The Plaintiff has no information of a custody proceeding concerning the child
pending in any Court of this Commonwealth.
11. The best interest and permanent welfare of the child will be best served by granting
the relief requested.
12. The Plaintiff does not know of any person not a party to the proceedings who
claims to have custody or visitation rights with respect to the child.
WHEREFORE, the Plaintiff, Oscar Hernandez, respectfully requests this Honorable
Court to enter an Order scheduling the Parties for a Custody Conciliation.
Date:
11- 0--C) I
ubmitted,
Thomas S. Diehl, Esquire
Attorney for the Plaintiff
One West High Street, Suite 208
Post Office Box 1290
Carlisle, Pennsylvania 17013
(717) 240-0833
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VERIFICATION
I verify that the statements made in this Complaint are true and correct. I understand that
false statements herein are made subject to the penalties of 18 Pa.C.S, S 4904, relating to
unsworn falsification to authorities.
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DOMESTIC RELATIONS SECTION
OF CUMBERLAND COUNTY
- LEGAL OFFICE -
13 NORTH HANOVER STREET
P.O. Box 320
CARLISLE, PENNSYLVANIA 17013-0320
FREDERICK I HUGANIR, Esquire
CATHY A. LEPPO, Legal Assistant
Tel: 717,240,6545
Fax: 717,240,7777
GEORGE E HOFFER, President Judge
EDGAR 8. BAYLEY. Judge
KEVIN A HESS, Judge
J. WESLEY OLER, Judge
EDWARD E GUIDO, Judge
March 7, 2003
Division of Vital Records
Attn: Birth Correction Unit
Department of Health
P.O. Box 1528
NewCastle,PA 16103
Re: Erika Hope Machemer, alk/a Erika H. Smith
Your file No. 3674290-1998
Our file No. P ACSES 898103404
354 Support 2001
2001-6291 Civil Term - Custody
1 enclose a copy of your letter dated October 23,2002, which has been forwarded to me for a
Dear Sir/Madame:
reply.
As I write this letter, I have on my 'desk the official court records (original documents) of the
following two cases: Jennifer R. Machemer v. Oscar Hernandez, 344 Support 2001 (Domestic
Relations - child support); Oscar Hernandez v. Jennifer R. (Smith) Machemer, 2001-6291 (Civil
Action - Custody). Neither the custody case file nor the support case file contains "a court order
signed by Judge Edgar B. Bayley declaring that Stephen Daniel Macherner was the father of Erika
Hope Smith based on genetic tests." I spoke to (1) the Clerk of Court for the Domestic Relations
Section, and (2) the Prothonotary, who are responsible for docketing support and custody cases,
respectively. They have no record of such an order being noted on the court docket
Please send a copy of the order you mention, along with any attachments (motion, petition,
etc.), and we will proceed from there. Thank you kindl
cc:
Pat Homer, Deputy Clerk of Court
~eck~' Hlltfisk, Deputy Prothonotary/
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HEALTH
...in pursuit of good health
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(724) 656,3130
October 23, 2002
Court Of Common Pleas of Cumberland County
Domestic Relations Section
13 North Hanover Street
P. 0, Box 320
Carlisle, P A 17013
RE: Erika H. Smith
FILE #: 3674290-1998
Dear Sit:
We r~cently received an acknowledgement of paternity/waiver of trial, P ACSES Case Number 898103404,
Docket Num~er 00344 S 2001, 'signed by Judge George K Hoffer on February 27, 2002, in which Oscar
Hernandez acknowledges that he is the father of the above listed child. In this waiver, Mr. Hernandez waived his
rights to genetic testing and to trial on the issue of paternity,
In the process of filing this waiver, we realized that another paternity action had taken place for this child
through the Cumberland County Court of Common Pleas, This action was a court order signed by Judge Edgar B.
Bayley, dated November 14, 2001. This Court Order, No, 2001,6291 Civil Term, declared that Stephen Daniel
Machemer waS the father of Erika Hope Smith based on genetic tests,
Would you kindly review your files and clarify the paternity for Erika, An acceptable determinatiou would
be a certified Court Order accompanied by a cover letter. We will hold the February 2002, acknowledgement of
paternity/waiver of trial until we receive your reply, Please contact us at the above telephone number if you have
any questions.
Birth Correction Unit
erne
Division of Vital Records
P.O, Box 1528
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New Castle, PA 16103
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OSCAR HERNANDEZ,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 2001-6291
CIVIL TERM
JENNIFER R. (SMITH)
MACHEMER,
Defendant
: CIVIL ACTION - LAW
: IN CUSTODY
ORDER OF COURT
AND NOW, this L 4/' day of July 2002, upon review and consideration of the attached
Stipulation, the above-captioned parties' hearing scheduled for July 25, 2002 is hereby
dismissed,
BY THE COURT:
J.
cc:
)l'1Iomas S, Diehl, Esquire
,)'lfnothy J. Colgan, Esquire
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OSCAR HERNANDEZ,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 2001-6291
CIVIL TERM
JENNIFER R. (SMITH)
MACHEMER,
Defendant
: CIVIL ACTION - LAW
: IN CUSTODY
STIPULATION
AND NOW, comes the Plaintiff, Oscar Hernandez, by and through his counsel, Thomas
S. Diehl, Esquire, who respectfully represents the following:
I. Plaintiff is Oscar Hernandez, an adult individual currently residing at 115
Cranberry Road, Aspers, Adams County, Pennsylvania 17304.
2. Defendant is Jennifer R. (Smith) Machemer, an adult individual currently residing
at 4615 South Clearview Drive, Camp Hill, Cumberland County, Pennsylvania 17011.
3. The Plaintiff filed a Petition for Modification on May 10,2002.
4. This matter is scheduled to be heard before the Honorable Kevin A. Hess on July
25, 2002.
5 The Plaintiff is represented by Thomas S. Diehl, Esquire, and the Defendant is
represented by Timothy J. Colgan, Esquire.
6. The parties mutually agree to ,i1ismiss the hearing currently scheduled for July 25,
2002,
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JUL-23-2BB2 13:16 FROM:WILEY LENOX COLGAN 7174320426
TO: 717 24B B893
FROM: MISLITSKY RNp ~lerL
FAX NO. : 717-240-ee9~
Jul. 242lBl 1l:.4'8l'tI PA
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WHI-:Il.EPORE, pariks It:Sp~.Clr\111y requesls Ulis Honorable Court to di$miss Ule hcarini
currently schedule fo' July 25, 2002.
Rospllelfully submitted,
Date:
JUl 2 3 2002
Date: 7-? ~-If>;J-
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Attorney for tile Defendant
One South Ballimo~Stree[
Oillsbura, Pennsylvania 17019
(717) 432.9666
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OSCAR HERNANDEZ,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
: NO. 2001-6291 CIVIL TERM
JENNIFER R. (SMITH)
MACHEMER,
Defendant
: CIVIL ACTION - LAW
: IN CUSTODY
ORDER OF COURT
AND NOW, this rz." dayof ~ ,2001, upon
consideration of the attached Custody Conciliation Report, it is ordered and directed as
follows:
1. The Father, Oscar Hernandez, and the Mother, Jennifer R. (Smith)
Machemer, shall haye shared legal custody of Erika Hope Smith, born August 16, 1998.
Each parent shall have an equal right, to be exercised jointly with the other parent, to
make all major non"emergency decisions affecting the Child's general well-being
including, but not limited to, all decisions regarding her health, education and religion.
3. The Mother shall have primary physical custody of the child.
4. The Father shall have the following periods of supervised physical
custody, with his Mother acting as supervisor:
A. Saturday, December 15, 2001 from 4:30 p.m. to 8:30 p.m.
B. Thursday, December 27,2001 from 4:30 p.m. to 8:30 p.m.
C. Saturday, December 29, 2001 for a period of eight (8) hours at times
agreed by the parties, and on alternating Saturdays thereafter for eight (8)
hours.
5. Father shall obtain an anger management evaluation from a provider
agreed to by the parties. Father shall follow the recommendations ofthe evaluation.
Once Father's therapist is satisfied that Father's anger is under control, Father shall be
entitled to unsupervised alternating weekends with the child, at times agreed by the
parties.
6. Father shall provide all transportation until Mother is physically able to
drive at which time transportation shall be shared as agreed by the parties.
7. This Order is entered pursuant to an agreement of the parties at a Custody
Conciliation Conference. The parties may modify the provisions of this Order by mutual
consent. In the absence of mutual consent, the terms of this Order shall control.
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BY THE COURT,
cc: Thomas S. Diehl, Esquire, Counsel for Father
Timothy I. Colgan, Esquire, Counsel for Mother
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OSCAR HERNANDEZ,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
: 2001-6291 CIVIL TERM
JENNIFER R. (SMITH)
MACHEMER,
Defendant
: CIVIL ACTION -LAW
: IN CUSTODY
PRIOR JUDGE: None
CUSTODY CONCILIATION SUMMARY REPORT
IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL
PROCEDURE 1915.3-8, the undersigned Custody Conciliator submits the following
report:
1. The pertinent information concerning the Child who is the subject of this
litigation is as follows:
NAME
DATE OF BIRTH CURRENTLY IN CUSTODY OF
Erika Hope Smith
August 16, 1998 Mother
2. A Conciliation Conference was held in this matter on December 5, 2001,
with the following individuals in attendance: The Father, Oscar Hernandez, with his
counsel, Thomas S. Diehl, Esquire; and Timothy J. Colgan, Esquire on behalf of Mother,
Jennifer R. (Smith) Machemer, who was present by phone due to a medical restriction.
3. The parties agreed to entry of an Order in the form as attached.
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Date
ac line M. Verney, Esquire
Custody Conciliator
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JUN~ 2002
OSCAR HERNANDEZ,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
: NO. 2001-6291 CIVIL TERM
JENNIFER R. (SMITH)
MACHEMER,
Defendant
: CIVIL ACTION - LAW
: IN CUSTODY
ORDER OF COURT
AND NOW, this I tti day of ~ g ~ , 2002, upon
consideration of the attached Custody Concili ion Report, it is ordered and directed as
follows:
~~
I. AHearing IS scheduled in Court Room No. if , of the Cumberland
County Court House, on the ..:2StA day of ~ "it ' 2002, at 9;~
o'clock ,L.M., at which time testimony will e~. For Puwoses of this Hearing,
Mother shall be deemed the moving party and shall proceed initially with testimony.
Counsel for each party shall file with the Court and opposing counsel a Memorandum
setting forth each party's position on custody, a list of witnesses who will be expected to
testify at the Hearing and a summary of the anticipated testimony of each witness. These
Memoranda shall be filed at least ten days prior to the Hearing date.
2. A Pre-trial conference is scheduled in Gewi ~ ,of the
Cumberland County Court House, on the r A:f; day of ~ ~_ , 2002 at
9; tJ1) o'clock L. M., to discuss the procedural issue invol d in this matter.
3. Pending further Order of Court or agreement of the parties the following
shall remain in effect.
4. The prior Order of Court dated December 12, 2001 is hereby vacated.
5. The Father, Oscar Hernandez, and the Mother, Jennifer R. (Smith)
Machemer, shall have shared legal custody of Erika Hope Smith, born August 16, 1998.
Each parent shall have an equal right, to be exercised jointly with the other parent, to
make all major non-emergency decisions affecting the Child's general well-being
including, but not limited to, all decisions regarding her health, education and religion.
3. The Mother shall have primary physical custody ofthe child.
4. The Father shall have the following periods of partial physical custody:
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A. Beginning Friday, Jnne 7, 2002, two consecutive weekends from Friday at
4:00 p.m. to Sunday at 6:00 p.m. and continuing thereafter on an
altemating weekend schedule at the same days and times.
B. Beginnipg June 11,2002 every Tuesday from 4:00 p.m. to 8:00 p.m.
C. July 4,2002 from 9:00 a.m. to 7:00 p.m.
D. July 25, :2002 from 4:00 p.m. overnight and continue through Father's
regular weekend.
5. The parties shall share transportation such that they will meet at the
McDonald's in Dillsburg at the exchange times, unless otherwise agreed by the parties.
6. The parties may modify the provisions of this Order by mutual consent. In
the absence of mutual consent, the terms of this Order shall control.
BY THE COURT,
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cc: Thomas S. DieW, Esquire, Counsel for Fath
Timothy J. Colgan,' Esquire, Counsel for Mother
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OSCAR HERNANDEZ,
Plaintiff
v.
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: 2001-6291 CIVIL TERM
JENNIFER R. (SMITH)
MACHEMER,
Defendant
: CIVIL ACTION - LAW
: IN CUSTODY
PRIOR JUDGE: Kevin A. Hess, J.
CUSTODY CONCILIATION SUMMARY REPORT
IN ACCORDANCE WITH CUMBERLAND COUNTY RULE OF CIVIL
PROCEDURE 1915.3-8, the undersigned Custody Conciliator submits the following
report:
1. The pertinent information concerning the Child who is the subject ofthis
litigation is as follows:
NAME
DATE OF BIRTH CURRENTLY IN CUSTODY OF
Erika Hope Smith
August 16, 1998 Mother
2. A Conciliation Conference was held in this matter on June 4, 2002, with
the following individuals in attendance: The Father, Oscar Hernandez, with his counsel,
Thomas S. Diehl, Esquire; and Mother, Jennifer R. (Smith) Machemer, with her counsel,
Timothy J. Colgan, Esquire.
3. A prior Order of Court was entered by the Honorable Kevin A. Hess dated
December 12,2001 which provided for shared legal custody with Mother having primary
pbysical cust9\1Y.<ID.. .... \I Filtherhaving perio\ls of supervised visitation pending an
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evaluation for anger management.
4. Father's position on custody is as follows: Father received a favorable
evaluation and was seeking through his Petition for Modification, alternating weekends
and one evening per week. However, Mother recently informed Father that she believed
her current husband is the Father of the child in question, not the Petitioner herein.
Father maintains that regardless of the outcome of any paternity testing, Mother should
be estopped from asserting paternity due to the passage of time. Also, Father has been
paying support voluntarily since 1999, a few months after Mother and child moved from
his residence, and by court Order since December, 2001. Father believes it would not be
in the child's best interest to terminate his custody/parental rights. In addition, Mother
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recently asked to relocate the child to North Carolina, as her present Husband has been
transferred by his company. Father rejects the offer of physical custody for the summer,
the Christmas holiday and spring break. He believes that Mother is relocating just to
deny him custody of the child. Mother's current husband turned down a prior offer of
promotion with his company to Louisiana to remain in this area. Both parties' families
live in the immediate area. There are no family members living in the Durham, North
Carolina area. Father claims there is prior history of Mother denying custody. Father is
now seeking primary physical custody
5. Mother's position on custody is as follows: She seeks to relocate to North
Carolina where her husband has been offered a promotion and salary increase from
$34,500.00 to $50,000.00 annually with Coventry Health Care. Mother stays at home to
care for her three children: one child is older than Erika, and of school age, with a
different father; one child is younger than Erika, whose father is Mother's current
husband. Mother has only recently asserted that her current husband is the father of
Erika. Mother seeks to terminate Father, Oscar Hernandez' right to custody or parental
rights. Mother's counsel intends to research the state of the law regarding paternity in
such situations and file the appropriate Petition to overturn Father's rights to custody.
Although Mother disputes the dates which Father voluntarily paid support prior to a
support Order being entered, she admits that he has paid support since 1999. Mother
recently withdrew her support action against Father. Mother seeks primary physical
custody and the right to relocate. She has not filed a Petition for relocation or
modification of the present custody Order.
6. Both parties seek a pre-trial conference to discuss the complex issues
presented by this factual situation regarding paternity.
7. The Conciliator suggests an Order in the form as attached scheduling a
pre-trial conference, a hearing and granting the parties shared legal custody, Mother with
primary physical custody and Father with alternating weekends and one evening per
week. It is expected that the hearing will require one day.
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cq line M. Verney, Esquire
Custody Conciliator
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OSCAR HERNANDEZ
PLAINTIFF
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL V AN1A
v,
01-6291 CMLACTIONLAW
JENNIFER R (SMIlli) MACHEMER
DEFENDANT
IN CUSTODY
ORDER OF COURT
AND NOW, Thursday, May 16, 2002 , upon consideration of the attached Complaint,
it is hereby directed that parties and their respective counsel appear before Jacqueline M. Verney, Esq. , the conciliator,
at 4th Floor, Cumberland County Courthouse, Carlisle on Tuesday, June 04, 2002 at 10:30 AM
for a Pre,Hearing Custody Conference. At such conference, an effort will be made to resolve the issues in dispute; or
if this cannot be accomplished, to defme and narrow the issues to be heard by the court, and to enter into a temporary
order. All children age five or older may also be present at the conference. Failure to appear at the conference may
provide grounds for entry of a temporary or permanent order.
The court hereby directs the parties to furnish any and all existing Protection from Abnse orders,
Special Relief orders, and Cnstody orders to the conciliator 48 hours prior to scheduled hearing.
if'::
FOR THE COURT,
By: Isl
Jacqueline M. VernlO'. Esq. ",'w
Custody Conciliator
The Court of Common Pleas of Cumberland County is required by law to comply with the
Americans with Disabilites Act of 1990. For information about accessible facilities and reasonable
accommodations available to disabled individuals having business before the court, please contact our office.
All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must
attend the scheduled conference or hearing.
YOU SHOULD TAKE THIS PAPER TO YOUR ATTORNEY AT ONCE. IF YOU DO NOT
HA VB AN ATTORNEY OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET
FORTH BELOW TO FIND our WHERE YOU CAN GET LEGAL HELP.
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Cumberland County Bar Association
2 Liberty Avenue
Carlisle, Pennsylvania 17013
Telephone (717) 249,3166
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OSCAR HERNANDEZ,
Plaintiff/Petitioner
: IN THE COURT OF COMMON PLEAS OF\'~ 20UZ
: CUMBERLAND COUNTY, PENNSYL V AJ1fIl 3 2
v.
: NO. 2001-6291
CIVIL TERM
JENNIFER R. (SMITH)
MACHEMER,
DefendantlRespondent
: CIVIL ACTION - LAW
: IN CUSTODY
ORDER OF COURT
AND NOW, this day of , 2002 upon consideration of the
attached Petition it is hereby directed that the parties and their respective counsel appear before
Esquire, the conciliator, at
, Pennsylvania, on the day of
, 2002, at o'clock _.m. for a Pre-Hearing Custody
Conference. At such conference, an effort will be made to resolve the issues in dispute; or if this
cannot be accomplished, to define and narrow the issues to be heard by the Court, and to enter into
a temporary order. All children aged five or older may be present at the conference, Failure to
appear at the conference may provide grounds for entry of a temporary or permanent order,
FOR THE COURT:
By:
Custody Conciliator
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 FIND OUT WHERE YOU CAN GET HELP.
THE CUMBERLAND COUNTY BAR ASSOCIATION
2 LIBERTY AVENUE
CARLISLE, P A 17013
(717) 249-3166
1-800,990,9108
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OSCAR HERNANDEZ,
Plaintiff/Petitioner
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 2001-6291
CIVIL TERM
JENNIFER R. (SMITH)
MACHEMER,
DefendantlRespondent
: CIVIL ACTION - LAW
: IN CUSTODY
PETITION FOR MODIFICATION OF CUSTODY
AND NOW, comes the Petitioner, Oscar Hernandez, by and through his counsel, Thomas
S. Diehl, Esquire, who petitions this Honorbal Court as follows:
I. Petitioner is Oscar Hernandez, an adult individual currently residing at 115
Cranberry Road, Aspers, Adams County, Pennsylvania 17304.
2. Respondent is Jennifer R. (Smith) Machemer, an adult individual currently
residing at 4615 South Clearview Drive, Camp Hill, Cumberland County, Pennsylvania 17011,
3. The Petitioner is the natural Father of the child, Erika Hope Smith, born August
16,1998.
4. The parties are currently subject to a Custody Order dated December 12, 2001,
which was the result of an agreement reached at a Custody Conciliation Conference held on
December 5, 2001. A copy of the resulting Order is attached hereto and incorporated herein by
reference as Exhibit' A.'
5 Other than as noted above, there have been no additional actions relative to
custody of the within named child in any jurisdiction to the Petitioner's knowledge.
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6. Among the reasons why the Petitioner desires a modification to the Order are as
follows:
(a) Paragraph 5 of the Order dated December 12, 2001, required Father to
obtain anger management counseling prior to his receiving periods of
partial, unsupervised, physical custody of the child on alternating
weekends.
(b) Accordingly, Father obtained such counseling through James W. Eash,
LSW, of Riegler, Shienvold & Associates.
(c) Father has since received a letter dated March 26, 2002, from James W.
Eash, LSW, indicating that no further anger management counseling is
recommended at this time. A copy of said letter is attached hereto and
incorporated herein by reference as Exhibit 'B.'
7. The natural Father of the child is Oscar Hernandez. He is single.
8. The natural Mother of the child is Jennifer R. (Smith) Machemer. She is married.
9. The relationship of the Petitioner to the child is that of natural Father. The natural
Father currently resides with his parents.
10. The relationship of the Respondent to the child is that of natural Mother. The
natural Mother currently resides with her husband.
II, The Petitioner has not participated as a party or a witness in any other capacity in
litigation concerning the child except as noted above.
12. Petitioner has no information of any custody proceeding concerning the child
pending in any Court of this Commonwealth.
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13. The child's best interest and permanent welfare would be significantly improved
by modifying the existing Custody Order by providing the child more contact with Father.
WHEREFORE, Petitioner, Oscar Hernandez, respectfully requests this Honorable Court
to enter an Order scheduling the parties for a Custody Conciliation to address modifying the
existing custody order.
Respectfully submitted,
MAY 0 8 2002
Date:
Thomas S, Diehl, Esquire
Attorney for the Petitioner
One West High Street, Suite 208
Post Office Box 1290
Carlisle, Pennsylvania 17013
(717) 240-0833
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VERIFICATION
I verifY that the statements made in this Complaint are true and correct. I understand that
false statements herein are made subject to the penalties of 18 Pa.C.S. S 4904, relating to
unsworn falsification to authorities.
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EXHIBIT A
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OSCAR HERNANDEZ,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
: NO. 2001-6291 CIVIL TERM
JENNIFER R. (SMITH)
MACHEMER,
Defendant
: CIVIL ACTION - LAW
: IN CUSTODY
ORDER OF COURT
AND NOW, this l1.tk day of l\e..e.e..1'Y\ b ei ,2001, upon
consideration of the attached Custody Conciliation Report, it is ordered and directed as
follows:
I. The Father, Oscar Hernandez, and the Mother, Jennifer R. (Smith)
Machemer, shall have shared legal custody of Erika Hope Smith, born August 16, 1998.
Each parent shall have an equal right, to be exercised jointly with the other parent, to
make all major non-emergency decisions affecting the Child's general well.:being
including, but not limited to, all decisions regarding her health, education and religion.
3. The Mother shall have primary physical custody of the child.
4. The Father shall have the following periods of supervised physical
custody, with his Mother acting as supervisor:
A. Saturday, December 15,2001 from 4:30 p.m. to 8:30 p.m.
B. Thursday, December 27,2001 from 4:30 p.m. to 8:30 p.m.
C. Saturday, December 29, 2001 for a period of eight (8) hours at times
agreed by the parties, and on alternating Saturdays thereafter for eight (8)
hours.
5. Father shall obtain an anger management evaluation from a provider
agreed to by the parties. Father shall follow the recommendations of the evaluation.
Once Father's therapist is satisfied that Father's anger is under control, Father shall be
entitled to unsupervised alternating weekends with the child, at times agreed by the
parties.
6. Father shall provide all transportation until Mother is physically able to
drive at which time transportation shall be shared as agreed by the parties.
7. This Order is entered pursuant to an agreement of the parties at a Custody
Conciliation Conference. The parties may modify the provisions of this Order by mutual
consent, In the absence of mutual consent, the terms of this Order shall control. RECEIVED
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BY THE COURT,
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cc: Thomas S. Diehl, Esquire, Counsel for Father
Timothy J. Colgan, Esquire, Counsel for Mother
COpy ":ROM RECORD
TRUE h I hpro ,,',to set my hand
In Testimony w ereo , ,,' .
and t seal of sai courtDat Carlisle, pa'E$r
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OSCAR HERNANDEZ,
Plaintiff
v.
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: 2001-6291 CIVIL TERM .
JENNIFER R. (SMITH)
MACHlEMER,
Defendant
: CIVIL ACTION - LAW
: IN CUSTODY
PRIOR JUDGE: None
CUSTODY CONCILIATION SUMMARY REPORT
IN ACCORDANCE WIm CUMBERLAND COUNTY RULE OF CIVIL
PROCEDURE 1915.3-8, the undersigned Custody Conciliator submits the following
report:
I. The pertinent information concerning the Child who is the subject of this
litigation is as follows:
NAME
DATE OF BIRTH CURRENTLY IN CUSTODY OF
Erika Hope Smith
August 16, 1998 Mother
2. A Conciliation Conference was held in this matter on December 5, 2001,
with the following individuals in attendance: The Father, Oscar Hernandez, with his
counsel, Thomas S. Diehl, Esquire; and Timothy J. Colgan, Esquire on behalf of Mother,
Jennifer R. (Smith) Machemer, who was present by phone due to a medical restriction.
3. The parties agreed to entry of an Order in the form as attached.
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. cline M. Verney, Esquire
Custody Conciliator
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Riegler' Shienvold
& Associates
March 26, 2002
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Elliot Riegler. Ph.D. (1948,1999)
Arnold T. Shienvold. Ph,D.
Melinda Eash, MS
James Eash, LS\\
"'liehael!. Asken. Ph.D.
Bonnie Howard, Ph,D,
Amy K, Keisling, ACSW, LCSW. BCD
Tracy RIchards, QCSW, LCSW
Don Lawrence, LSW
Dyanne Seymore, QCSW, LSW
Jeffrey Pincus. Ph,D,
Ann Vergales, ACSW, LSW, BCD
Lisa R, Paponetti, MA
Th.omas Diehl, Esq,
I West High Street
Suite 208
Carlisle, PA 17013
RE: Oscar Hernandez
Dear Th.omas:
As y.ou requested I am writing t.o c.onfirm that I have met with Oscar Hernandez t.o evaluate his
mental status and determine if there is any psychopath.ol.ogy related to the allegations .of physical
abuse against his fermer girlfriend and child. Mr. Hernandez was referred pursuant t.o a court
.order as part .ofa cust.ody.order dated 12 December, 2001, His initial visit was p.ositive and he
was c.o.operative. He was aware .of the purpose .ofhis visit and was .oriented t.o three spheres. He
was able t.o answer all questi.ons, was insightful, and underst.o.od the difference between right and
wr.ong. In additi.on t.o the interview, Mr. Hernandez c.ompleted an MMPI-2 personality invent.ory.
Oscar rep.orted that he met Jennifer in 1999. He said that after dating fer a "sh.ort peri.od" they
began living t.ogether, and Jennifer became pregnant. He said that after the baby was born they
began t.o experience "money pr.oblems." They eventually separated with Jennifer retaining
cust.ody .of the child. Oscar stated that he had n.o c.ontact with his daughter until September, 2001
when he began t.o pursue visitati.on in c.ourt. During that precess, Jennifer indicated t.o the c.ourt
that Oscar had been verbally and physically abusive with her. He claims, h.owever, that he never
hit .or raised his voice in anger against Jennifer .or her family. He denies any .other physical
assaults .or aggressi.on.
Oscar rep.orts that he was born in Fl.orida as the y.oungest .of f.our children. He was raised by his
natural parents. The family settled in the Gettysburg area while Oscar was in elementary scho.ol.
His parents and siblings c.ontinue t.o live in the Gettysburg area in cl.ose pr.oximity t.o .one an.other.
He states that his family was "cl.ose" and "l.oving". He says he was never hit .or abused as a child.
Alth.ough the MMPI-2 resuhs were valid, Oscar appeared t.o present himself in an improbably
fav.orable light, Similar patterns .of answers indicate a very psych.ol.ogically naive pers.on wh.o is
denying c.omm.on human frailties. Individuals with this pre file present themselves as c.ontr.olled,
resp.onsible, easyg.oing and stable. Interpers.onally they are friendly and interested in peep Ie, but
av.oid deep em.oti.onal involvement. C.onflicts can .occur with pe.ople wh.o have different beliefs.
Based an the present inf.ormati.on, there is n.o reason t.o suspect an anger management problem .or
problem with abuse. There is evidence .of s.ome defensiveness and a l.ow likelih.o.od to admit faults
as presented in his MMPI-2, H.owever, this finding is tempered by the lack.of c.orr.oborating
evidence .of abuse, such as past allegati.ons .of abuse, p.olice reports, .or arrests. In additi.on, Oscar
n.otes that he has a c.ordial and c.o.operative relati.onship with the m.other .of his first child. There is
APR 0 4 2002
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no apparent evidence of abuse in that relationship. Based on these findings there is no
recOIl1lIlendation for further anger management counseling. Iffurther evidence were forthcoming,
this recommendation would be reconsidered.
If you have any questions regarding this evaluation or recommendation, please feel free to call.
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CERTIFICATE OF SERVICE
I hereby certifY this 8th day of May 2002, that a true and correct copy of the foregoing
document was served on the following individual via first-class mail, postage prepaid:
Timothy J. Colgan, Esquire
One South Baltimore
DiIlsburg, PA 17019
By
Kimberly 1. H
Legal Assistant
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