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HomeMy WebLinkAbout99-02973 irr V r C ' d r- V Y ri PY:;?i117 cumherIand Cnunl.y Prol.honoLary's Office L'I.vII Case Inquiry '1'19 0297 1 ATK 1 NSON I.NWI S E ( vs ) EVANS JAMFIS MICHAEL lir lc rvncc: No.. Fi. led....... c'n:oe 'I'y,re.....: WRIT OF SUMMONS Time.........: ,Wd I III .. .. .00 Execul-lon Date ludgr: Assigned: Jury Trial. .... h11!1Josed Dosc.: Disposed Date. . Caso Cummeni-s --- higher CrL 1.: Higher Crt 2.: Page I 5/17/1999 1:43 0/00/0000 0/00/0000 1681 MDA2000 141**A*********4******AA************A************#*****************************1 Genoral Index Attorney Info ATKINSON LEWIS F PLAINTIFF SMI.GEL, LEROY EVANS JAME'* MICHAEL DEFENDANT MARSHALL FRANCIS E JR 6.150 PENNSBORO DRIVE ROBINSON ALAN 'M MRCIIANICSIHIRG PA 17055 ' Da l: r- Entries + A, k A, - - - - FIRST ENTRY 1 5/17/i999 PRAECIPE: FOR WRIT OF SUMMONS IN CIVIL. ACTION WRTT OF SUMMONS ISSUED 2 5/29/1999 SHERIFF'S RETURN FILED. Ll.t.lgqant..: EVANS JAMES MICHAEL SERVED : 5/24/99 WRIT OF SUMMONS Costs....: $32.82 Pd By: SMIGEL, ANDERSON 6 SACKS 05/25/1999 - ------ --- 3 1/18/2000 -------------------------------------------------------- PRAECIPE FOR RULE TO FILE COMPLAINT BY FRANCIS E MARSHALL JR ESQ --------`------ ----------------------------- -- --- - 4 - 6 1/18/2000 -- -- --------------- - RULE TO FILE COMPLAINT BY CURTIS R LONG PROTHONOTARY ---- -------- - ------ --- - - 7 - 22 2/013/2000 ------------ --- - - ---------------------------- COMPLAINT 23 2/14/2000 ACCEPTANCE OF SERVICE ....----------------- ------- --------------------------------- - 24 - 26 2/15/2000 - ------ - ENTRY OF APPEARANCE FOR DEFENDANT BY FRANCIS E MARSHALL JR ESQ AND ALAN M R013TNSON ESQ 27 - 50 2/24/2000 PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT ------------------------------------------------------------------- 51'- 53 2/24/2000 PRAECIPE FOR LISTING CASE FOR ARGUMENT BY FRANCIS E MARSHALL JR ESQ DEF'ENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT -------------- --------- - ------------------------------- 54 - 57 3/15/2000 ----- - ------- PLAINTIFF'S ANSWER TO DEFENDANT'S PRELIMINARY OBJECTIONS ---------------------------------------------- --? ------------ ---- 58 - 60 5/11/2000 r -- PRAECIPE FOR LISTING CASE FOR ARGUMENT BY FRANCIS E MARSHALL JR ESQ -------------------- ------------------------------------------------ 61 - 65 8/16/2000 OPINION AND ORDER - DATED 8/15/00 - IN RE PRELIMINARY OBJECTIONS OF THE DEFENDANT - PRELIMINARY OBJECTIONS OF THE. DEFENDANT TO THE PLAINTIFF'S COMPLAINT IN THE NATURE OF A DEMURRER AND FOR FAILURE OF THE PLEADING TO CONFORM TO LAW ARE SUSTAINED AND THE COMPLAINT IS DISMISSED WITH PREJUDICE - BY KEVIN A HESS J -- COPIES MAILED 8/16/00 ----' 66 - 68 9/13/2000 -------------------------'--'--------- ---- ---------- NOTICE OF APPEAL TO SUPERIOR COURT OF PENNSYLVANIA - BY LEROY SMIGEL ESQ 69 - 70 9/27/2000 SUPERIOR COURT OF PA NOTICE OF APPEAL DOCKETING TO 0 1.681 MDA 2000 - LAST ENTRY - - - - - -- - - - - - - - - / AtA*}{{t{k *AA{bAA**A}k**t}{y}kAA A}A*A***{*t**k*}**}**#AA{{**}*}***#***#*****#*{{ + Escrow Information " Fc+es tr D ebit's Bnc Hal mts/Ad End Bal { P ***A - AA?AAAAkAA t}{{}AAAAtAAAAAtA*AA** }*}*A}A* *t*{*t *t****}{4t##}*}*{{****}#*** WRIT OF SUMMONS 35.00 351.00 .00 TAX ON W RIT .50 .50 .00 51.00 5.00 .00 .IC '1' I'K F. 1.00 5.00 .00 APPEAI. 30.00 30.00 .00 75.50 75.50 .00 PYS510 Cumberland County Prothonotary's Office Page 2 Civil Case Inquiry 1999-02973 ATKINSON LEWIS F. (vs) EVANS JAMES MICHAEL Reference No..: Filed........: 5/17/1999 Case Type.....: WRIT OF SUMMONS Time.........: 1:43 Judgment. ... : .00 Execution Date 0/00/0000 Judge Assigned: Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- higher Crt 1.: Higher Crt 2.: * End of Case Information * Cl:' Cl:l'CATE AND TRANSMIT'T'AL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 l . --To the Prothonotary of the Apellate Court to which the within matter has been appealed: SUPERIOR COURT OF PENNSYLVANIA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on tile, the transcript of the proceedings, if any, and the docket entries in the following matter: LEWIS E. ATKINSON Vs JAMES MICHAEL EVANS 99-2973 CIVIL TERM 1681 MDA 2000 The documents comprising the record have been numbered from No. 1 to 70 , and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each do'cwnent, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 10-9-00 Cu i R. Long, Pro on tary Jane H. Sparling, Dpty. (((JJJ An additional cony, of this certificate is enclosed. Please sign and Date Signature & Title OCT 1 LJLJ s 10:55 A.M. Supreme Court of Pennsylvania q9 2 9q.3 Appeal (locket Sheet Docket Number: 63 MAP 2002 Page 1 of 5 24, 2003 V. James Michael Evans, Appellee Initiating Document: Order Granting Petition for Allowance of Appeal Case Status: Closed Journal Number: J-187-2002 Date Listed Submitted: December 4, 2002 Case Category: Civil Case Type: Other Consolidated Docket Nos.: Related Docket Nos.: COUNSEL INFORMATION Attorney: Ann Veronica Levin, Esq. Bar No.: 70259 Smigel, Anderson & Sacks Address: Smigel, Anderson & Sacks 4431 North Front Street Harrisburg, PA 17110 Phone No.: (717)234-2401 Fax No.: Receive Mail: Yes 4 Representing: Lewis E. Atkinson, Appellant Pro Se: No i IFP Status: Attorney: LeRoy Smigel, Esq. Bar No.: 09617 Smigel, Anderson & Sacks Address: I Smigel, Anderson & Sacks 4431 North Front Street Harrisburg, PA 17110 Phone No.: (717)234-2401 Fax No.: Receive Mail: Yes j Representing: Lewis E. Atkinson, Appellant Pro Se: No i IFP Status: Attorney: Thomas M. Chairs, Esq. Bar No.: 78565 Address: Marshall & Haddick PC 20 S 36th Street Camp Hill, PA 17011 Phone No.: (717)7314800 Receive Mail: Yes Representing: James Michael Evans, Appellee Pro Se: No 1!2412003 Crawford, Thomas F. & Associates, P.C. Fax No.: loss r . 10:55 A.M. Supreme Court of Pennsylvania Appeal Docket Sheet Docket Number: 63 MAP 2002 Page 2 of 5 January 24, 2003 IFP Status: Attorney: Francis E. Marshall, Esq. Bar No.: 27594 Address: Marshall & Haddick PC 20 South 36th Street Camp Hill, PA 17011 Phone No.: (717)731-4800 Receive Mail: Yes Representing: James Michael Evans, Appellee Pro Se: No Marshall, Smith & Haddick, P.C. Fax No.: (717)731-4803 IFP Status: SUPREME COURT INFORMATION Appeal From: the Ord of Sup Ct entered 12-05-2001 at No. 1681 MDA2000, which affirmed the Ord of CCP of Cumb Cty, Civ Div, entered 08-15-2000 (certified 08-16-2000) at No. 99-2973. Probable Jurisdiction Noted: Docketed Date: May 16, 2002 Allocatur Grant Date: May 16, 2002 Allocatur Docket No.: 8 MAL 2002 Allocatur Grant Order: "AND NOW, this 16th day of May 2002, the Petition for Allowance of Appeal is GRANTED, limited to the issue of whether a cause of action for intentional interference with contractual relations is viable in a marital context in Pennsylvania." PC FEE INFORMATION Paid Fee Date Fee Name Reason Waived Fee Amt Amount Receipt Number INTERMEDIATE APPELLATE COURT INFORMATIOI` Court Name: Superior Docket Number: Date of Order: December 5, 2001 Reargument Denied: Judge(s): Cavanaugh, James R. Musmanno, John L. Olszewski, Peter Paul Intermediate Appellate Court Action: Affirmed Referring Court: TRIAL COURTIAGENCY INFORMATION Court Below: Cumberland County Court of Common Pleas Lower Court Docket Number: 99-2973 County: Cumberland Division: Civil Date of Trial Court/Agency Order: August 15, 2000 OTN: 1681 MDA 2000 Order Type: Order Judge: Hess, Kevin A., Judge 1/2412003 1055 r 10:55 A.M. Supreme Court of Pennsylvania Appeal Docket Sheet Docket Number: 63 MAP 2002 Page 3 of 5 January 24, 2003 ORIGINAL RECORD CONTENTS Original Record Item Filed Date Content/Description Part(s) May 20, 2002 1 Record Remittal: January 24, 2003 BRIEFS Appellant Appellee Brief Brief Atkinson, Lewis E. Due: July 1, 2002 Filed: July 1, 2002 Evans, James Michael Reproduced Record Due: July 31, 2002 Filed: August 5, 2002 Atkinson, Lewis E. Due: July 1, 2002 Filed: July 1, 2002 REARGUMENT/RECONSIDERATION REMITTAL Reargument/Reconsideration Filed Date: Reargument Disposition: Date: Reargument Order: Record Remitted: January 24, 2003 SESSION INFORMATION Journal Number: J-187-2002 Consideration Type: Oral Argument Supreme Ct. Date Listed/Submitted: December 4, 2002 DISPOSITION INFORMATION Related Journal Number: J-187-2002 Judgment Date: January 2, 2003 Disposition Category: Decided Disposition Author: Per Curiam Disposition: Affirmed Disposition Date: December 31, 2002 Dispositional Filing: Order Author: Per Curiam Filed Date: 1!212003 Justice: Zappala, Stephen A. Vote: Did Not Participate in Consid!Decision DOCKET ENTRIES 1124/2003 ,oss r 10:55 AX Supreme Court of Pennsylvania Appeal Docket Sheet - d Docket Number: 63 MAP 2002 Page 4 of 5 May 16, 2002 Allocatur Granted January 24, 2003 Per Curiam Comments: "AND NOW, this 16th day of May 2002, the Petition for Allowance of Appeal is GRANTED, limited to the Issue of whether a cause of action for intentional interference with contractual relations is viable in a marital context in Pennsylvania." PC May 20, 2002 Superior Ct. Record Received June 6, 2002 Designation of Contents of Reproduced Record Superior Court July 1, 2002 Appellant Atkinson, Lewis E. Appellant's Brief and Reproduced Record Combined Filed Appellant Comments: August 5, 2002 07/01/2002 - Service by 1st-class mail. Appellee's Brief Filed Appellee Comments: 08/05/2002 - Service by hand-delivery. 08/06/2002 - Requested additional 18 copies. August 16, 2002 Appellant's Reply Brief Appellant December 4, 2002 Argued Atkinson, Lewis E. Evans, James Michael Atkinson, Lewis E. Supreme Court December 31, 2002 Affirmed Per Curiam Comments: "Based on its opinion, the Order of the Superior Court is affirmed. See Atkinson v. Evans, 787 A.2d 1033 (Pa. Super. 2001)." Mr. Chief Justice Zappala did not participate in the consideration or decision of this case. January 2, 2003 Judgment Entered Office of the Prothonotary January 24, 2003 Remitted 1124/2003 1055 • 10:55 A.M. Supreme Court of Pennsylvania Appeal Docket Sheet Docket Number: 63 MAP 2002 Page 5 of 5 January 24, 2003 Office of the Prothonotan Comments: Original Record & Certified Order dated 12-31-02 remitted to Cumberland County CCP, Civil Div. cc: Superior Court HBG. Cross Court Actions Docket Number: 1681 MDA 2000 1124/2003 1055 MAY-16-2002 11:43 PROTHONOTARY MIDDLE DIST. Supreme Court of Permsylvenla Irene M. Bi=cso Middle District Deputy Prwhonom y Shirley BeBey cwdccrk ORIGINAL RECORD REQUEST TO,. David A. Szewczak, Esq. Prothonotary RECORD REQUESTED: May 16, 2002 FROM: Office of the Prothonotary RE: Lewis E. Atkinson, Appellant V, James Michael Evans, Appellee No.: 63 MAP 2002 0 C7 0 l <j ?r1o. 1681 MDA 2000 Trial Court Docket Number: 99-2973 717 767 1549 P.01i02 P.O. Box 621 Hurhbure, PA 17108 117.787.6181 w .aopcor2 Received In Superior Court MAY 16 2002 MIDDLE Please forward the Original Record to the Supreme Court at the address shown above as soon as possible. AKS Received in Supreme Court MAY 2 0 2002 Middle MAY-16-2002 11:43 PROTHONOTARY MIDDLE DIST. 717 787 1549 P.02i02 IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT LEWIS E. ATKINSON, Petitioner V. JAMES MICHAEL EVANS, Respondent No. 8 MAL 2002 Petition for Allowance of Appeal from the Judgment and Published Opinion of the Superior Court 2c; o c, / Received in Superior Court MAY 16 2002 MIDDLE PER CURIAM ORDER AND NOW, this 16'h day of May 2002, the Petition for Allowance of Appeal is GRANTED, limited to the issue of whether a cause of action for intentional interference with contractual relations Is viable in a marital context in Pennsylvania. TRUE & CORRECT Copy MTM MAY 1 G 2M SHIR EY BAI CHIEF CLERK TOTAL P.02 4 Superior Court of Pennsylvania David A. Szcwczak, Gsy. Prothonotary Middle District Fnlrnn linildin` 200 N. Third Street. 9th Flnnr Patricia A. Whittaker May 17, 2Q02 Harrisburg, PA 17101 Chief Clerk 717-772-1294 www.superioncourt.state.pa.us Certificate of Remittal/Remand of Record TO: Mr. Charles W. Johns Prothonotary RE: ATKINSON, L. V. EVANS, J. No. 1681 MDA 2000 Trial Court/Agency Dkt. Number: 99-2973 Trial Court/Agency Name: Cumberland County Court of Common Pleas Intermediate Appellate Court Number: Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Contents of Original Record: Part Original Record Item Filed Date Description October 26, 2000 Date of Remand of Record: May 17, 2002 1 Enc is an additional copy of certificate. Please acknowledge receipt by si dating, andlosed returning the enclosed Capy tohthe Prothonotary Office or the Chef Clerk's office.ing, Patricia A. Whittaker Chief Clerk Signature Date Printed Name /krr , J.A33028/01 2001 PA Super 344 LEWIS E. ATKINSON, Appellant V. JAMES MICHAEL EVANS, Appellee IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1681 MDA 2000 Appeal from the Order Entered August 15, 2000 In the Court of Common Pleas of Cumberland County Civil at No. 99-2973 BEFORE: CAVANAUGH, MUSMANNO and OLSZEWSKI, JJ. OPINION BY CAVANAUGH, ].: F I LED DEC-52001 ¶ 1 The present appeal is from the order of court which sustained the preliminary objections of James Michael Evans to the complaint of Lewis Atkinson and dismissed the complaint with prejudice. The relief was sought pursuant to Pa.R.C.P. 1028(a)(4) - legal insufficiency of a pleading (demurrer). ¶ 2 We recently restated the standard which controls our review: [w]hen preliminary objections in the nature of a demurrer are filed, we must accept as true all the well-pleaded material facts set forth in the complaint and all reasonable inferences deducible from those facts. Accepting these facts and inferences, we then determine whether the pleader has failed to state a claim for which relief may be granted, and we will affirm the grant of a demurrer only if there is certainty that no recovery is possible. All doubts are resolved in favor of the pleader. Furthermore, by filing preliminary objections in the nature of a demurrer, appellees have admitted the factual allegations of the complaint for purposes of the demurrer. Reformed Church of the Ascension v. Theodore kooven & Sons, Inc., 764 A.2d 1106, 1109 (Pa. Super. 2000). J.A33028/01 $ 3 Appellant Lewis Atkinson's complaint, which was dismissed, sought relief from James Michael Evans in the form of monetary damages based upon two stated causes of action: 1) Interference with contractual relations, and, 2) conspiracy. $ 4 The background which we draw from the factual averments of Atkinson's complaint is that Atkinson was married to Mary Elizabeth Atkinson in 1975. In 1996, the Atkinsons separated as the result of an "affair" between Mary Elizabeth and defendant appellee, James Michael Evans. In December of that year, the Atkinsons entered into a post-nuptial agreement which addressed the parties' mutual property rights. In a separate provision, Mary Elizabeth agreed to terminate any relationship with Evans, to resist any future contact with him and, finally, agreed "not to engage in any other adulterous relationship." The comprehensive agreement contained provisions for the amicable allocation of their respective property interests, but also had stipulations which would become operable in the event of a future divorce. $5 It is further averred that Evans had knowledge of the Atkinson's agreement and his potential role in its efficacy as the accord which was ' designed to act as the polestar for the perpetuation of the Atkinson's marital relationship. Finally, it is averred that, notwithstanding, Evans induced Mary f Elizabeth to breach her agreement and that his knowing acts constituted f wrongful interference with the existing contractual relationship of the 2 J.A33028/01 Atkinsons. The complaint averred specific conduct on the part of Evans which would, indisputably, be acts which placed Mary Elizabeth in clear violation of her agreement. Damages are sought as a consequence of Evans' interference which has caused Lewis the loss of his marriage, psychological damage and career impairment. ¶ 6 In the conspiracy count, damages are sought on the basis that Evans and Mary Elizabeth conspired to divert marital property to Evans and to cause a depletion of marital assets. Mary Elizabeth is not a party to the action. $ 7 Appellant's suit faces several barriers of which appellant is not unaware. In 1976, our supreme court abolished, by court decision, the cause of action for criminal conversation. Fadgen v. Lenkner, 365 A.2d 147 (Pa. 1976). If that tort were still extant, and if the averments of appellant's complaint are true, this case would clearly be within its terms. In 1990, the legislature reenacted a long standing act which had abolished actions for alienation of affections in Pennsylvania. 23 Pa.C.S.A. §1901 (reenacting Act of June 22, 1935 P.L. 450). Again, the instant averments would support such a claim were it not for the legislation which annulled such claims. $ 8 Appellant's argument is that his cause of action for intentional interference with a contractual relationship is not foreclosed by abolition of the tort of criminal conversation or claims for alienation of affection. In support, he argues precedent of a common pleas case, Todd v. Powell, 6 3 J.A33028/01 D. & C.3d 766 (C.P. Beaver Cty. 1978). Assuming that we would find this decision to be of persuasive authority, we nonetheless find it unavailing to appellant. In Todd, the claimant husband, like the appellant herein, grounded his action on an intentional interference with contractual rights i and so stated in his answer to the preliminary objections. The trial court, however, noted that in his brief to the court, husband stated his claim as being for "intentional infliction of marital distress" relying on Restatement i (Second) of Torts §46. So considered, the court opined that a §46 claim was j not clearly foreclosed by prior decision or legislation. As a result, the i demurrer was sustained to the complaint, but plaintiff was nonetheless granted 20 days to amend the complaint to plead a claim under §46. Contrary to appellant's argument, the reasoning of Todd is that whereas a claim of interference with contractual rights would not overcome the preliminary objections, a §46 claim of intentional infliction of mental distress would, if properly plead, withstand the preliminary objection. It is revealing that nowhere in his complaint or in his brief on appeal to this court has appellant asserted that he grounds his claim of §46 intentional infliction of emotional distress.' We would, thus, find that Todd, rather than supporting appellant's position, is contrary to it. ` This is not to say that we would agree with the Todd court that claims under §46 may override the governing abolitions. 4 ).A33028/01 ¶ 9 AntoneW v. Xenakis, 69 A.2d 102 (Pa. 1949) is, like Todd, unavailing to appellant's position. This case long preceded Fadgen v. Lenkner, supra, and simply stands for the proposition that the court concluded at that time that the statutory abolition of claims for alienation of affection did not foreclose pursuit of the still-recognized tort of criminal conversation. ¶ 10 Presently, the trial court was correct in deciding that there is no basis in current law for the appellant's claim of intentional interference with a contractual relationship or civil conspiracy. ¶ it The tort of intentional interference with performance of contract by third person is embodied in Restatement (Second) of Torts at §766. A review of this complex provision reveals that its intended reach is as to commercial and employment contracts.2 Our research of the many federal and commonwealth cases applying §766 discloses none involving domestic contracts (and appellant furnishes no such authority). ? 12 More fundamentally, when we examine the contract of the Atkinsons, we find that while the subject matter is the parties' respective economic interests in the marriage, the contract consideration is Mary Elizabeth's promise of disengagement of her relationship with Evans and, inferentially, a resumption of her exclusive fidelity to Lewis, her husband. This provision is 2 See Restatement (Second) of Torts §766 Comments. 5 J.A33028/01 nothing more than a restatement of Mary Elizabeth's marital vows - she was promising to do what she had already promised at the time of her marriage. $ 13 Whether we agree or not, judicial decision of a generation ago, and { legislation long preceding that decision (together with abandonment of adultery as a crime) have made it clear that the policy of this Commonwealth is that tort claims, based upon enabling or consorting with an unfaithful spouse in derogation of duties of marital fidelity, are not actionable. ¶ 14 We find that the claims of intentional interference with a contract and civil conspiracy, however mischievous in the present circumstances, do not form the basis for a civil action under Pennsylvania law. ¶ 15 Order affirmed. 6 [J-187-2002] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT LEWIS E. ATKINSON, Appellant V. JAMES MICHAEL EVANS, No. 63 MAP 2002 Appeal from the Order of the Superior Court entered on December 5, 2001 at No. 1681 MDA 2000, affirming the Order of the Court of Common Pleas of Cumberland County, Civil Division, entered on August 15, 2000 (certified August 16, 2000) at No. 99-2973 Appellee 787 A.2d 1033 (Pa. Super. 2001) ARGUED: December 4, 2002 ORDER PER CURIAM Decided: December 31, 2002 Based on its opinion, the Order of the Superior Court is affirmed. See Atkinson v. Evans, 787 A.2d 1033 (Pa. Super. 2001). Mr. Chief Justice Zappala did not participate in the consideration or decision of this case. JUDGMENT ENTERED: January 2, 2003 P 1 S? i I Shirley Bailey, Chief Clerk 7 Y cl! G O V Supreme Court of Pennsylvania Irene M. Binoso INliddle District Deputy Prothonotary Shirley Bailey January 24, 2003 Chief Clerk Certificate of Remittal/Remand of Record TO: Mr. Curtis R. Long Prothonotary RE: Atkinson, Aplt v. Evans No.63 MAP 2002 Trial Court/Agency Dkt. Number: 99-2973 Trial Court/Agency Name: Cumberland County Court of Common Pleas Intermediate Appellate Court Number: 1681 MDA 2000 P.O. Box 624 I larrisburg, PA 17108 717-787.6181 uuutaupc.org Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Contents of Original Record: Original Record Item Filed Date Description Part(s) May 20, 2002 1 Date of Remand of Record: January 24, 2003 ORIGINAL RECIPIENT ONLY - Please acknowledge receipt by signing, dating, and returning the enclosed copy of this certificate to our office. Copy recipients (noted below) need not acknowledge receipt. Signature Date Printed Name /eez cc: David A. Szewczak, Esq. Prothonotary f;:? CETIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 To the Prothonotary of the Apellate Court to which the within matter has been appealed: SUPERIOR COURT OF PENNSYLVANIA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: LEWIS E. ATKINSON VS JAMES MICHAEL EVANS 99-2973 CIVIL TERM 1681 MDA 2000 RECORD FILED IN SIIPM'^R r 111 T OQn^^- OCT 2 6 2000 Ip? The documents comprising the record have been numbered from No. 1 to 70 , and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 10-9-00 An additional copy of this cei acknowledging receipt of this Date 0U 1 ?OrO V 1 ? n r ttA lG rt c Cu 'i R. Long, Prothon tary Jane H. Sparling, Dpty. Signature & Title and r"1 P: Among the Records and Proceedings enrolled in the court of Common Pleas in and for the county of CUMBERLAND MDA 000 in the Commonwealth of Pennsylvania to No. 99-2973 CIVIL TERM Term 19 is contained the following: COPY OF COMPLETE APPEARANCE DOCKET ENTRY LEWIS E. ATKINSON VS JAMES MICHAEL EVANS SEE ATTACHED CERTIFIED DOCKET ENTRIES. I P Q E u F- F d z 6 Z N_ L Cl T G C Q ?i Ca Y?I {L N i u , V {a: C x h 4 v v c a E N t3. ? .` U tv 6 n 0 0 a` `.r Commonwealth of Pennsylvania County of Cumberland ss: 1, Curtis R. Long , Prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full, true and correct copy of the whole record of the case therein stated, wherein Lewius E. Atkinson Plaintiff, and James Michael Evans Defendant , as the same remains of record before the said Court at No.99-2973 of Civil Term, A•D.19_. In TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court this 9th - day of October A. D l 000 thonotary 1, George E. Hoffer President Judge of the N h Judicial District, composed of the County of Cumberland, do certify that _ Curtis R. Long by whom the annexed record, certificate and attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County, was, at the time of so doing, and now is Prothonotary in and for said County of CUMBERLAND in the Commonwealth of Pennsylvania, duly commissioned and qualified to all of whose acts as such full faith and credit are and ought to be given as well in Courts of judicature as c whereand that the said record, certificate and attestation are in due form of law and made 40) ent.l od(!e Commonwealth of Pennsylvania County of Cumberland ss: I, Curti G R Long _ ))) Prothonotary of the Couft of Common Pleas in and for the said County, do certify that the Honorable __GLOrgp F. Hnffpr. -P--J - by by whom the foregoing attestation wars made, and who has thereunto subscribed his name, was, at the time of making. thereof, and still is President.ludge nl'the Court of Common Pleas, Orphan' Coup and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere. IN TI,S"IIMONY WHFRf.OI-. 1 have hereunto set my hand and affixed the seal of %aid Court this 9th day of October_ A.D. P90. I'll. r I'Y:;'il(1 Cun)horland (:rnn)t.y I'rol.honntary's Off lco Page 1 C I v I I Cann In(lotry I')')9 0297:1 ATKINSON I.I•:WIS H (vs) EVANS JAMES MICHAEL I(nfornncn No.. Fl led....... 5/17/1999 r.uu•. 'I'yx......: WRIT' Of' SUMMONS TIIIM.........: 1:43 .IU(I Inn?Ii .......: .00 I:xncul.ion [),Ito 0/00/0000 .ludgn Assigned: Jury Trial.... I)ISIiosnd Ur`sc.: Ms?iosnd Date. 0/00/0000 Casc CommenLS Iliq)er Cr.t. 1.: 1.681. MDA2000 Ilighnr Crt- 2.: A Af hAA*}A**f#?AA#A*}}AAA**tkk*k#k#***}#*******}#*****t****}*#*}****}kk*#****t 4tA Genn.ral Index Att-ornoy Info ATKIN:ON LEWIS E PLAINTIFF SMI.GE1. LEROY EVANS JAME.5 MICIIAI?L DEFENDANT MARSNAI,I. FRANCIS E JR 4350 PENNSBORO DRIVE ROBINSON ALAN M MECIIANICSRURG I'A 17055 #****#************#***********************A-************************************* + Dace Ent-rios A*A+********+#t#*#*#*+*****#***#**#**#****}**************###**#***************** FIRST ENTRY 1 'i/17/1999 PRAI::CIPE FOR WRIT OF SUMMONS IN CIVIL ACTION-WRIT OF SUMMONS ISSUED -------------------------------- 2 `i/2.5/1999 SHERIFF'S RETURN FILED. Lit-I(anL.: EVANS JAMES MICHAEL SERVI'D : 5/24/99 WRIT OF SUMMONS Cosl.s.... : $32.82 Pd By: SMIGEL, ANDERSON & SACKS 05/25/1999 - ------- - ------------------------------------- 3 1/18/2000 PRAECIPE FOR RULE TO PILE COMPLAINT BY FRANCIS E MARSHALL JR ESQ .__..._.-.-._.-.-....-----' ------------------------------------- 4 - 6 1 / I fi/2000 RNLI; TO FI I.E COMPLAINT BY CURTIS R LONG PROTHONOTARY 7 - 22 2/08/2000 COMPLAINT ---------- 23 2/14/2000 ACCEPTANCE OF SERVICE ... .-- ------`---------`----- 24 - 26 2/15/2000 ENTRY OF APPEARANCE FOR DEFENDANT BY FRANCIS E MARSHALL JR ESQ AND ALAN M ROBINSON ESQ '-- -- - ------------- 27 - 50 2/24/2000 PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT 51 - 53 2/24/2000 PRAECIPE FOR LISTING CASE FOR ARGUMENT BY FRANCIS E MARSHALL JR ESQ ------------------------------------------------------------------- DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT --------- --------------------------------------------------------- 54 - 57 3/15/2000 PLAINTIFF'S ANSWER TO DEFENDANT'S PRELIMINARY OBJECTIONS --------------------------------------------------------------- 58 - 60 5/11/2000 PRAECIPE FOR LISTING CASE FOR ARGUMENT BY FRANCIS E MARSHALL JR ESQ ----------------------------------------------------------------- 61 - 65 R/16/2000 OPINION AND ORDER'- DATED 8/15!00- IN RE PRELIMINARY OBJECTIONS.,OF THE DEFENDANT - PRELIMINARY OBJECTIONS OF THE DEFENDANT TO THE - PLAINTIF'F'S COMPLAINT IN THE NATURE OF A DEMURRER AND FOR FAILURE OF THE PLEADING TO CONFORM TO LAW ARE SUSTAINED AND THE COMPLAINT IS DISMISSED WITH PREJUDICE - BY KEVIN A HESS J - COPIES MAILED 8/16/00 ---- .----------------------------------------`---------------------- 66 - 68 9/13/2000 NOTICE OF APPEAL TO SUPERIOR COURT OF PENNSYLVANIA - BY LEROY ' SMIGEI. ESQ ---_---------- 69 - 70 9/27/2000 SUPERIOR COURT OF PA NOTICE OF APPEAL DOCKETING TO 8 1681 MDA 2000 LAST ENTRY - - - - - - - - - - - •****a*a*a*AAAAAA+****A++A#ktdAA+*+AL*AAAk*4*#+#A#*#+*#*#**********************k ' " Escrow Information A Fens > Dehits Ile Hal Pmts/Ad End Bal •AAf*++**AAAa?A*aAAAAA A#AAA*AAAA }a*a#AA+ *A*A *k AA*A*************************4*... WR I'I' (11' SUMMONS 3`).00 35.00 .00 - TAX ON WRIT .50 .50 .00 :0I:'1"1'1.1:MI:N'P 51.00 5.00 .00 ,1( 5. 00 5.00 .00 AI'I'1:A1. 30.00 30.00 .00 7 5. 50 75.50 .00 PYS51.0 Cumber ' and County Prothonotary' S i ?«aI f. tre Page 2 !4[;v l l Caa Inquiry 1999-02973 ATKINSON I,EWIS I: (v5) EVANS JAMES MICHAEL he Terence No.. . _ ("Ine 'fly Filed ?re..... c WRIT T ' OF SUMMONS • • • • • • • : 5/17/1999 Judgnu m : .. .00 Time.........: 1:43 Judge ASS.igned: Execlj Date 0/00/0000 i)Isp( ;;od DeS(:.: Jury Trial-, Case Comment-5 Di)oSed Date. 0/00/0000 Ilg or Crt 1.: 1681 MDA2000 higher. Crt 2.: * Lind of Case Information I nUE COPY FROM RECORD In Tesdmorny where.,if, I hero unto set my hand and the seal of ett)u Car; t Carlisle, Pa. ThA IL - f-i A l _t? , 0611 1116, 4406-24/PRAECIPE FOR WRIT/LRS/vlfMay 12,19991:47 PM LEWIS E. ATKINSON, PLAINTIFF V. JAMES MICHAEL EVANS, DEFENDANT (°`, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 9 9 -.97 73 CIVIL ACTION - LAW PRAECIPE FOR WRIT OF SUMMONS >•1 TO THE PROTHONOTARY: Please issue a Writ of Summons and deliver it to the Sheriff for service on the Defendant at the following address: James Michael Evans 6350 Pennsboro Drive Mechanicsburg, PA 17055 SMIGEL, ANDES &c SA S Date: 5 !31 By:I- LeRoy ugel, Esqu re ID #09617 2917 North Front Street Harrisburg, PA 17110-1260 (717) 234-2401 Attorneys for Plaintiff WRIT OF SUMMONS TO THE ABOVE-NAMED DEFENDANT: YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF HAS COMMENCED AN ACTION AGAINST YOU. qLl( Prothonotary Datc:.5-17-g 9 By: Deputy m ,.I I Y c rj i ,-?HERIFF'S RETURN - REGULAR r' CASE NO: 1999-02973 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ATKINSON LEWIS E VS. EVANS JAMES MICHAEL RICHARD SMITH Sheriff or Deputy Sheriff of CUMBERLAND County, Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon EVANS JAMES MICHAEL the defendant, at 19:35 HOURS, on the 24th da of May 1999 at 6350 PENNSBORO DRIVE y -?-- MECHANICSBURG, PA 17055 CUMBERLAND County, Pennsylvania, by handing to SUSAN EVANS (WIFE) a true and attested copy of the WRIT OF SUMMONS and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing So answer 18.00 Service Affidavit 6.82 00 Surcharge 8.00 omas in $32.-87-SM GEL, ANDERSON & CKS O5M /1999 by.? f Sworn and subscribed t before me this -? day of GL?(? 19A.D,? Q? ?J-cnPn t Y"'?wh G o a y P1 LEWIS E. ATKINSON : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PA PLAINTIFF V. : NO. 99-2973 JAMES MICHAEL EVANS CIVIL ACTION-LAW DEFENDANT: PRAECIPE FOR RULE TO FILE A COMPLAINT TO THE PROTHONOTARY: Kindly issue a Rule upon Plaintiff to file a Complaint in the above-captioned case within twenty (20) days after service of the rule or suffer a judgment of non pros. Respectfully submitted, MARSHALL,&Fl-ADD K Date: January 13, 2000 Francis arshall, Jr., Esquire Attorney I.D. No: 27594 20 South 36th Street Camp Hill, PA 17011 (717)731-4800 Attorney for Defendant LEWIS E. ATKINSON : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PA PLAINTIFF V. NO. 99-2973 JAMES MICHAEL EVANS CIVIL ACTION-LAW DEFENDANT: RULE TO FILE A COMPLAINT AND NOW, this ay of 2000, a Rule is hereby issued upon the Plaintiff , to file a Complaint in the above ?captioned case within twenty (20) days of service of this Rule or suffer judgment of non pros. `` CERTIFICATE OF SERVICE AND NOW, this -7 day of January, 2000, I, Francis E. Marshall, Jr., Esquire, hereby certify that I did serve a true and correct copy of the foregoing Praecipe for Rule to File a Complaint upon all counsel of record by depositing, or causing to be deposited, same in the U.S. mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: By First-Class Mail: LeRoy Smigel, Esquire 2917 North Front Street Harrisburg, PA 17110-1260 Attorney for Plaintiff r o C- l J .ti ?. J l 1 (1. (1 J) ?+ y> U ® %'w w el' LEWIS E. ATKINSON, PLAINTIFF V. JAMES MICHAEL EVANS, DEFENDANT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 99-2973 CIVIL ACTION - LAW N O T I C E 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 NNTOT 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 (717) 249-3166 or 1-800-990-9108 N O T I C I A Le Eau demandado a usted en !a corte•. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo a] partir de la facha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en Persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objectiones a ]as demandas encontra de su persona. Sea avisado que si usted no se defiende, ]a corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus prepiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO S?,TFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA ?`FICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 or 1-800-990-91108 \v P"1 44064.4/Complaint /A VL/kld/ February 7, 2000 1;52 I'M LEWIS E. ATKINSON, PLAINTIFF V. JAMES MICHAEL EVANS, DEFENDANT il? IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-2973 : CIVIL ACTION- LAW COMPLAINT Plaintiff, Lewis Atkinson, is an individual and citizen of the Commonwealth of Pennsylvania, residing at 1062 Tunberry Court, Mechanicsburg, Cumberland County, Pennsylvania. 2. Defendant, James Michael Evans, is an individual and citizen of the Commonwealth of Pennsylvania, residing at 6350 Pennsboro Drive, Mechanicsburg, Cumberland County, Pennsylvania. 3. Plaintiff was married to Mary Elizabeth Atkinson on July 27, 1975 at Pitman, New Jersey. 4. In early 1996, Plaintiff and his wife separated as a result of an affair between Mary Elizabeth Atkinson and Defendant. 5. On December 2, 1996 Plaintiff entered a Post-Nuptial Agreement providing the parties' Property rights and duties in the continuing marriage. 6. The Agreement was effective December 2, 1996. A true and correct copy of the Agreement is attached hereto, made a pan hereof, and marked as Exhibit A. Part A, paragraph 4, of the Agreement provides that Mary Elizabeth Atkinson shall have no further contact with Defendant in any manner, including telephone, correspondence, electronic mail, or otherwise. (? r^? 8. Defendant had knowledge of the existence of the Agreement, and that a violation of the Agreement would likely lead to the dissolution of Plaintiffs marriage. 9. Defendant received several cash distributions from Mary Elizabeth Atkinson in the amount of $1,000.00 with the purpose of keeping the money from the marital estate. COUNTI Interference with Contractual Relations 10. Plaintiff incorporates by reference the allegations contained in paragraphs I through 9 as though set forth at length. 11. Defendant, acting without privilege or license, wrongfully interfered with Plaintiffs existing contractual relationship with Mary Elizabeth Atkinson by inducing or otherwise causing her not to perform her Post-Nuptial Agreement with the Plaintiff. 12. Defendant acted intentionally, knowingly and without justification for the purpose of inducing or causing Mary Elizabeth Atkinson not to perform the Agreement and to have contact with the Defendant. The actions of the Defendant include, but are not limited to, the following: A. The Defendant made phone calls to Mary Elizabeth Atkinson. B. The Defendant had frequent sexual relations with Mary Elizabeth Atkinson. C. Inducing, persuading and/or causing Mary Elizabeth Atkinson to breach her Agreement with Plaintiff and have contact with Defendant. 13. Plaintiff has suffered significant damages as a result of Defendant's actions including, but not limited to, psychological therapy, a detrimental impact on Plaintiffs job performance and the dissolution of Plaintiffs marriage and loss of the future affection and support of Plaintiffs spouse. -2- O ,,-,N COUNT 11 Conspiracy 14. Plaintiff incorporates by reference the allegations contained in paragraphs 1 through 13 as though set forth at length. 15. Defendant acted in combination with Mary Elizabeth Atkinson to divert money from the marital estate in violation of the Agreement. 16. Defendant acted in combination with Mary Elizabeth Atkinson to commit overt acts in pursuance of the purpose of diverting marital property in violation of the Agreement. 17. The actions of the Defendant include, but are not limited to, receiving several cash distributions in the amount of $1,000.00 from Mary Elizabeth Atkinson. 18. Plaintiff has suffered damages as a result of Defendant's actions including, but not limited to, the loss of marital assets in the amount of Five Hundred Thousand Dollars ($500,000.00). WHEREFORE, Plaintiff demands judgment against Defendant in an amount in excess of Fifty Thousand Dollars ($50,000.00), together with interest and costs, to provide partial compensation for the significant damages. SNIIGEL, ANDERSON fi ACKS Date: 7? o D By: QeZ 9 - LeRoy Smi 1, Esquire ID #09617 2917 North Front Street Harrisburg, PA 17110-1260 (717) 234-2401 Attorneys for Plaintiff -3- VERIFICATION I, LEWIS E. ATKINSON, Plaintiff, verify that the statements made in this Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. Date: Z. 1 '4 j . ? v F 4"? 'Ll r LEWIS E. ATKINSON, Plaintiff A--N. l.2 4406•PtAxt•NUPQ ASI m VAVI/b1A.eecembee 18, 1996 POST-NUPTW, AGREEMENT This post-nuptial agreement effective the 2nd day of December, 1996, by and between MARY ELIZABETH ATKINSON (hereafter "Betsy") and LEWIS E. ATKINSON (hereafter "Lew"), in contemplation and consideration of their ongoing marital relationship. WHEREAS, the parties to this Agreement were married on July 27, 1975 at Pitman, New Jersey. WHEREAS, the parties desire to define their property rights and any claims for care, support and maintenance or other similar payments to the other. NOW THEREFORE, the parties, intending to be legally bound and in consideration of the foregoing premises and mutual covenants hereafter, and intending to maintain a relationship with mutual love and affection, do agree and stipulate as follows: PART A 1. Betsy will pay all the remaining expenses incident to Teague's O and Kelly's college education. 2. Betsy will pay all current debt owed by either or both parties to the Internal Revenue Service. 3. Betsy forgives the "loan" in the amount of $2,000 which Lew (?r owes to her. The "loan" was made during the marriage to pay off a credit card in Lew's name alone which contained marital debt. 4. Betsy shall immediately terminate her relationship with James Michael Evans of Pennsboro Drive, Mechanicsburg, Pennsylvania. Betsy shall have no further contact with James Michael Evans by telephone, in i3 n person, correspondence, electronic mail, or in any manner. Betsy will not engage in any other adulterous relationship. (a) In the event there is a breach of this paragraph 4, Betsy agrees to: (1) Consent to a divorce if requested to do so by Lew; (2) Pay the sum of $50,000 to Lew upon the filing of the complaint in divorce whether filed by Betsy or Lew. (b) Lew will not engage in any adulterous relationship. (1) In the event there is a breach of this paragraph 4(b), Lew agrees to: a) Consent to a divorce if requested to do so by Betsy; the complaint inPadivorcey the filing of 5. If the parties hereto purchase a vacation home, the home will be purchased in joint names and held as entireties property, if and only if, both parties contribute an equal share towards the purchase and/or down payment. b? 6. The parties will continue their prior practice of tax allocation in regard to the filing of their joint income tax return. Each party's responsibility towards any tax owed and/or entitlement to a share of any tax refund will be considered by determining each party's income, taxes paid and taxes due. The interest deduction available for the mortgage for the primary place of residence will be apportioned between the parties in consideration of the expenses paid by each of them. (a) For example, if Betsy nays $16,000 for the year's expenses (mortgage and maintenance) and Lew pays $8,0oo for his living expenses (apartment/room and maintenance), then 2/3 of the allowable interest 2 N deduction would be allocated to Betsy in the calculation of taxes, 7. The parties acknowledge and agree that the income and appreciation of the trust established for the benefit of Betsy by her late father, George McKeag, shall be recognized as marital property of the parties. 8. The calculation of said income and appreciation runs from the value that accumulated from the date of the marriage through the date of separation and again from December 2, 1996, the date the parties signed the attached preliminary agreement (attached hereto as Exhibit "A") through any future date of separation. By December 31, 1996, Betsy will set up a joint account which requires both parties, signatures for all withdrawals. Betsy will instruct the trust administrator to forward all interest checks to this newly established joint account and deposit all interest obtained from the trust after December 2, 1996. PART B 1. Lew and Betsy will maintain separate checking accounts until Lew has paid off all of his debts in full. Lew will make a good faith effort to expeditiously accomplish the payment of all debts as soon as possible. Lew will not acquire any additional debt or direct his earnings to any investments/ savings, other than his. 401K, unless specifically approved by Betsy. By December 31, 1996, Lew will provide to Betsy a' detailed listing of debts owed along with the estimated monthly payments and the estimated payoff date. 2. All bills that contain itemized charges will be made available for review by each party regardless of in whose name the bill appears. All statements for checking and savings accounts will be made available 3 to both parties for review. 3. At the time Lew has paid off all of his debts, a joint checking account will be established in which both parties will deposit their salaries and from which all household expenses, including Lew's room rental and day-to-day expenses, including but not limited to gifts and vacations, shall be paid. The parties agree that Betsy will be the primary custodian of this checking account which will only require the signature of one of the parties on issued checks. Each party agrees that neither will withdraw any significant amount of money from this account without the knowledge and permission of the other. 4. Following payment of Lew's debts and the establishment of the joint checking account referenced in paragraph 3, the parties will consult with each other and make joint family investments and financial transactions, with the exception of the following: (a) Betsy will continue to direct the investment of her trust funds; (b) Lew will continue to direct the investment of his 401K plan; (c) Betsy will primarily maintain and disburse the funds from the joint checking and savings accounts (except the joint checking account containing the trust interest). 5. Neither party will acquire any additional debt unless specifically approved by the other. i 6. Lew agrees to use his best efforts to repair the credit report j deficiencies resulting from transactions with Hamilton Bank. The parties have agreed that best efforts will be defined as, at a minimum, two telephone calls and one letter per month. These communications 4 CO shall be to, as an example, Hamilton Bank, other credit agencies and/or applicable attorneys. The efforts shall continue until significant improvement is made on the credit report or it becomes obvious to counsel that no additional improvement is forthcoming. Lew will be responsible for and will pay all attorneys, fees incurred in this regard. 7• Both parties agree that all new charges to credit cards will be paid in full unless the parties have agreed otherwise or there are mitigating circumstances such as delayed reimbursement of business expenses. If this occurs, the other party shall be fully and promptly informed. a. Except for business requirements, Lew shall refrain from making any credit card cash advances. 9. By December 31, 1996, Lew will return all household furnishings in his possession and Betsy will pay to Lew or directly to one of his creditors, the sum of $4,500. This payment will result in all current household furnishings belonging solely to Betsy. Any acquisitions following the signing of this Agreement shall be documented by the parties as to the source of funds used to make the purchase. The parties shall maintain this list and will agree to equitably divide the property on the list in the event of a divorce. 10. Beginning January, 1997, Lew and Betsy will attend marital counseling for a minimum of six months at intervals of two to four weeks. Betsy will have the responsibility of identifying the therapist and arranging for the scheduling. The parties agree to discuss any topic brought forth by the other party and not found objectionable-by 5 /7 n the therapist. 11. Betsy will maintain exclusive control of her trust funds in regard to the disbursement of any amounts from the principal and/or gifts to her. Any future calculations of appreciation of the trust fund will include these amounts in evaluating the original fund amount and the then present value. 12. In the event of a divorce, the parties agree that Betsy will receive credit for the Internal Revenue service payments made on Lew's behalf and also for the loan which she has forgiven. PART C 1. Betsy and Lew each acknowledge that, prior to the execution of this Agreement, they each have had the opportunity to employ, consult with and be represented by separate and independent legal counsel of his or her own choosing. Betsy and Lew further acknowledge that each has read this Agreement and its exhibit. Betsy and Lew have each had the opportunity to have this Agreement fully explained as to the meaning and legal consequences of this Agreement. 2. In the event any provision or provisions of this Agreement are deemed unlawful, illegal, void, voidable or unenforceable as a matter of law, then the remainder of the Agreement not affected shall be enforceable as if the illegally, unlawfully, void, voidable or unenforceable provisions had not been set forth herein. 3. Any modification or waiver of any of the provisions of this Agreement shall be effective only if made in writing and executed by both parties. 4. The waiver of either party of any breach of this Agreement by 6 the other party shall not be deemed a waiver of the same, or any other provision of this Agreement, nor shall any action by either party inconsistent with his or her rights which exist to that party under this Agreement be considered to be a waiver of that right or any other rights existing under this Agreement. 5. This Agreement shall be construed under the laws of the Commonwealth of Pennsylvania regardless of the present or future residence or domicile of the marriage or either of the parties. 6. This instrument contains the entire understandings, promises and covenants between the parties and supersedes any and all prior agreements and negotiations to the extent that they are inconsistent herewith. This Agreement shall not be modifiable except upon written modification signed by both Betsy and Lew. 7. No persons shall have a right or cause of action arising or resulting from this Agreement except the parties hereto and their successors in interest. 8. Each party shall execute any instruments or documents at any time requested by the other party which are necessary or proper to effectuate this Agreement. 9. Each of the parties agrees that the terms of this Agreement are fair and reasonable and not unconscionable. 7 / e'? rte. j r; i' IN WITNESS WHEREOF, the parties do sign and seal this Agreement on the date above stated, intending to be legally bound thereby. Witness MARY ELIPBETq?,ATKINSON G( , LEWIS E. ATKINSON 6 8 CO ACKNOWLEDGMENT COMMONWEALTH OF PENNSYLVANIA SS. COUNTY OF DAUPHIN ? 7 On this, the day of Qitc, , 1994, before me, the undersigned officer, personally a ?a`regd Ma Elizabeth Atkinson , known to me or satisfactorily proven to a the person whose name is subscribed to the within instrument, and acknowledged that she executed same for the purposes therein set forth. IN WITNESS WHEREOF, I have eunto set my hand and official seal. ?rrrvkc_ Notary P bhc My Commission Expires: Notarial Seat Klmberlyy A. Stevens, Notary Public Harosburg, Dauphin County My Commission Expires April 29, 2000 Member, Pennsylvania Association of Rotanes ACKNOWLEDGMENT COMMONWEALTH OF PENNSYLVANIA SS. COUNTY OF DAUPHIN On this, the I 7 day of Q-)-P. JL/rrr /ae , 1996, before me, the undersigned officer, personally appeared Lewis E. Atkinson , known to me or satisfactorily proven to be the person whose name is subscribed to the within instrument, and acknowledged that he executed same for the purposes therein set forth. IN WITNESS WHEREOF, I have set my han and official seal. My Notarial Seal Vicky L. Fitz, Notary Public Harrisburg, Dauphin County My Commission Expires Dec. 5, 1998 ..:?r,a.r,Pann.y'.a:,?aA;aociw?olNotsies 9 i 1 i i ca,, MM K".-?JG .I11.'19f "O..i (4,,. My , 01 LU.M AWl i1461p 4406-24/Aceepteiice of SetviceIRS/vIf February 8, 2000 5:24 PM LEWIS E. ATKINSON, : IN THE COURT OF COMMON PLEAS PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA V. : No. 99-2973 JAMES MICHAEL EVANS, DEFENDANT CIVIL ACTION - LAW ACCEPTANCE OF SERVICE I, FRANCIS E. MARSHALL, JR., ESQUIRE, counsel for Defendant, accept service on behalf of Defendant of the Complaint filed on February 8, 2000, and certify that I am authorized to do so. MARSHALL & D K, P.C. Date: February f Q . 2000 By: Fr is E. Marshall, J ., Esquire I.D. # 27xjZ 20 South 3F Street Camp Hill, PA 17011 Attorneys for Defendant a ;J ill • -i LEWIS E. ATKINSON V. JAMES MICHAEL EVANS r. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PA PLAINTIFF ; NO. 99-2973 CIVIL ACTION-LAW DEFENDANT: ENTRY OF APPEARANCE Please enter the appearance of the undersigned as counsel for Defendant, James Micheal Evans, in the above-captioned matter. Respectfully submitted, P.C. Date: February 14, 2000 C/ v r cis E. Marshall, Jr., Esquire Attorney I.D. No: 27594 C&?? _ Alan M. Robinson, Esquire Attorney I.D. No: 82670 20 South 36th Street Camp Hill, PA 17011 (717)731-4800 Attorney for Defendant a r^? CERTIFICATE OF SERVICE AND NOW, this 14th day of February, 2000, I, Francis E. Marshall, Jr., Esquire, f I hereby certify that I did serve a true and correct copy of the foregoing Entry of Appearance upon all counsel of record by depositing, or causing to be deposited, same in the U.S. mail, postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: By First-Class Mail: LeRoy Smigel, Esquire 2917 North Front Street Harrisburg, PA 17110-1250 Attorney for Plaintiff 7c u u Q A p L L ? N V 0 1 - - ?_> ?,, -- .., ,- ?;: ?, ?:: ?- ;: ; ;_ ® ? LEWIS E. ATKINSON : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PA PLAINTIFF V. NO. 99-2973 JAMES MICHAEL EVANS CIVIL ACTION-LAW DEFENDANT: JURY TRIAL DEMANDED ORDER AND NOW this day of 2000, it is ORDERED that Defendant's Preliminary Objections are SUSTAINED and Plaintiff's Complaint is dismissed with prejudice. BY THE COURT el) LEWIS E. ATKINSON V. JAMES MICHAEL EVANS r 1 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA PLAINTIFF NO. 99-2973 CIVIL ACTION-LAW DEFENDANT: JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Plaintiff, Lewis E. Atkinson do I ::Roy Smigel, Esquire YOU ARE HEREBY NOTIFIED TO PLEAD TO THE WITHIN PRELIMINARY OBJECTIONS WITHIN TWENTY (20) DAYS OF THE DATE OF SERVICE OF THIS PLEADING OR JUDGMENT MAY BE ENTERED AGAINST YOU. Respectfully submitted, P.C. Dated: ? r t/ ? P ?/ acJAG Francift". arshall, Jr. Attor ID # 27594 Alan M. Robinson Attorney ID # 82670 20 South 36" Street Camp Hill, PA 17011 (717) 7314800 Attorneys for Defendant ?i LEWIS E. ATKINSON : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PA PLAINTIFF V. NO. 99-2973 JAMES MICHAEL EVANS CIVIL ACTION-LAW DEFENDANT: JURY TRIAL DEMANDED PRELIMINARY OB ECTIONS TO PLAINTIFF'S COMPLAINT AND NOW comes the Defendant, James Michael Evans, by and through his attorneys, Marshall and Haddick, P.C. and files his objections to Plaintiff's Complaint and avers the following in support thereof: 1. Plaintiff filed his Complaint on February S, 2000, (A true copy of the Complaint is attached hereto as Exhibit A). 2. Plaintiff alleges that he and his wife separated as the result of an affair between Defendant and Plaintiff's wife. (Please see Exhibit A, paragraph 4). 3. Plaintiff alleges that he and his wife entered a Post-Nuptial Agreement following the above referenced separation. (Please see Exhibit A, paragraph 5). 4. Plaintiff alleges that Defendant is liable in tort for interfering with the Plaintiff's husband-wife relationship, as defined by the Post-Nuptial Agreement. (Please see Exhibit A, Count p. 5. Plaintiff alleges that he suffered damages from the alleged interference in the nature of psychological therapy, a detrimental impact on his job performance, the dissolution of the marriage between the Plaintiff and his wife, and the loss of a? future affection of the support of his former wife. (Please see Exhibit A, paragraph 13). 6. Plaintiff also alleges that Defendant conspired with his former wife to breach the Post-Nuptial Agreement. (Please see Exhibit A, Count II). DEMURRER 7. Pa.R.C.P. 1028(a)(4) authorizes a preliminary objection on the ground that a pleading is legally insufficient to establish a right to relief. 8. All civil causes of action for alienation of affections of husband or wife have been explicitly abolished by the Pennsylvania Legislature. 23 Pa.C.S.A. § 1901(a). 9. The tort of criminal conversation has been explicitly abolished by the Pennsylvania Supreme Court. See L!Ogen v. Lrnkner, 469 Pa. 272, 365 A.2d 147 (1976). 10. The contract with which Defendant allegedly interfered is solely an outgrowth of, and could 1101 exist in the absence of, the marital relationship between Plaintiff and his ex-wife. 11. Pennsylvania has adopted Section 766 of the Restatement (Second) of Torts, which provides as follows: Intentional Interference with Performance of Contract by Third Person - One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the third person's failure to perform the contract, C0 e") 12. The cause of action stated in paragraph 11 does not provide Plaintiff with a remedy, even when the allegations of his Complaint are accepted as true. 13. Although Plaintiff has styled his Complaint as an action for interference with contractual relations and conspiracy to interfere with contractual relations, his allegations against Defendant amount to an attempt to plead a cause of action in alienation of affections and/or criminal conversation despite the express mandates of the Pennsylvania Legislature and Supreme Court that both causes of action are abolished. i,. 14. Part A, paragraph 4, of the Post-Nuptial Agreement (attached as an exhibit to Plaintiff's Complaint) reads as follows: Betsy shall immediately terminate her relationship with James Michael Evans of Pennsboro Drive, Mechanicsburg, Pennsylvania. Betsy shall have no further contact with James Michael Evans by telephone, in person, correspondence, electronic mail, or in any manner. Betsy will not engage in any other adulterous relationship. (a) In the event there is a breach of this paragraph 4, Betsy agrees to: (1) Consent to a divorce if requested to do so by Lew; (2) Pay the sum of $50,000 to Lew upon the filing of the complaint in divorce whether filed by Betsy of Lew. 15. Even when the allegations of Plaintiff's Complaint are accepted as true, the clause of the Post-Nuptial Agreement in paragraph 14 provides Plaintiff's sole remedy which might arise from any alleged relationship between Defendant and Plaintiff's ex-wife. l D 16. Plaintiff has not pleaded legally recoverable damages against Defendant. 17. PlahTtiff's Cornplalnl fails to state a claim against Defendant James Michael Evans, WHEREFORE, Defendant James Michael Evans respectfully requests that this Court dismiss Plaintiff's Complaint with prejudice. FAILURE OF PLEADING TO CONFORM TO LAW 111, Paragraphs l through 17 are incorporate herein by reference. 19- Pa,R,C.P, 10213(2) authorizes a preliminary objection when a pleading fails to conform to law, 20, 23 Pa,C•S.A,§1904 provides: It is unlawful for a person, either as a litigant or attorney, to file, cause to be filed, threaten to file or threaten to cause to be filed in a Court in this Commonwealth any pleading or paper setting forth or seeking to recover upon any cause of action abolished or barred by this chapter whether the cause of action arose within or without this Commonwealth. 21. Plaintiff's Complaint fails to conform to law insofar as it pleads a cause of action for alienation of affection in violation of 23 Pa.C.S.A. §1904. 3d WHEREFORE, Defendant James Michael Evans respectfully requests that this Court dismiss Plaintiff's Complaint with prejudice. Respectfully submitted, MAKSHALy&-PiADRICK, P.C. Dated: v Y,! ??, a Francis 5/ Attorne # 27594 ,AY Alan M. Robinson Attorney ID # 82670 20 South 36'n Street Camp Hill, PA 17011 (717) 731-4800 Attorneys for Defendant 33 LEWIS E. ATKINSON, PLAINTIFF V. JAMES MICHAEL EVANS, DEFENDANT (0-11, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 99-2973 CIVIL ACTION - LAW N O T I C E YOUHAIB 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 (717) 249-3166 or 1-800-990-9108 N O T I C I A Le kan dernardado a usted en la carte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la facha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en Persona o por abogado y archivar en la corte en forma esc ita sus defensas o sus objectiones a las demandas encontra de so persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 or 1-800-990-9108 EXHIBIT 4406.24/Complaint/AVUkId/ Fcbru'?), 2000 1:52 PM LEWIS E. ATKINSON, PLAINTIFF V. JAMES MICHAEL EVANS, DEFENDANT lomo? IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-2973 CIVIL ACTION - LAW COMPLAINT 1. Plaintiff, Lewis Atkinson, is an individual and citizen of the Commonwealth of Pennsylvania, residing at 1062 Tunberry Court, Mechanicsburg, Cumberland County, Pennsylvania. 2. Defendant, James Michael Evans, is an individual and citizen of the Commonwealth of Pennsylvania, residing at 6350 Pennsboro Drive, Mechanicsburg, Cumberland County, Pennsylvania. 3. Plaintiff was married to Mary Elizabeth Atkinson on July 27, 1975 at Pitman, New Jersey. 4. In early 1996, Plaintiff and his wife separated as a result of an affair between Mary Elizabeth Atkinson and Defendant. 5. On December 2, 1996 Plaintiff entered a Post-Nuptial Agreement providing the parties' property rights and duties in the continuing marriage. 6. The Agreement was effective December 2, 1996. A true and correct copy of the Agreement is attached hereto, made a part hereof, and marked as Exhibit A. Part A, paragraph 4, of the Agreement provides that Mary Elizabeth Atkinson shall have no further contact with Defendant in any manner, including telephone, correspondence, electronic mail, or otherwise. '(2) L S. Defendant had knowledge of the existence of the Agreement, and that a violation of the Agreement would likely lead to the dissolution of Plaintiff's marriage. 9. Defendant received several cash distributions from Mary Elizabeth Atkinson in the amount of $1,000.00 with the purpose of keeping the money from the marital estate. COUNTI Interference with Contractual Relations 10. Plaintiff incorporates by reference the allegations contained in paragraphs I through 9 as though set forth at length. 11. Defendant, acting without privilege or license, wrongfully interfered with Plaintiffs existing contractual relationship with Mary Elizabeth Atkinson by inducing or otherwise causing her not to perform her Post-Nuptial Agreement with the Plaintiff. 12. Defendant acted intentionally, knowingly and without justification for the purpose of inducing or causing Mary Elizabeth Atkinson not to perform the Agreement and to have contact with the Defendant. The actions of the Defendant include, but are not limited to, the following: A. The Defendant made phone calls to Mary Elizabeth Atkinson. B. The Defendant had frequent sexual relations with Mary Elizabeth Atkinson. C. Inducing, persuading and/or causing Mary Elizabeth Atkinson to breach her Agreement with Plaintiff and have contact with Defendant. 13. Plaintiff has suffered significant damages as a result of Defendant's actions including, but not limited to, psychological therapy, a detrimental impact on Plaintiff's job performance and the dissolution of Plaintiff's marriage and loss of the future affection and support of Plaintiffs spouse. 2. ?D COUNT II Conspiracy ("'ti 14. Plaintiff incorporates by reference the allegations contained in paragraphs 1 through 13 as though set forth at length. 15. Defendant acted in combination with Mary Elizabeth Atkinson to divert money from the marital estate in violation of the Agreement. 16. Defendant acted in combination with Mary Elizabeth Atkinson to commit overt acts in pursuance of the purpose of diverting marital property in violation of the Agreement. 17. The actions of the Defendant include, but are not limited to, receiving several cash distributions in the amount of $1,000.00 from Mary Elizabeth Atkinson. 18. Plaintiff has suffered damages as a result of Defendant's actions including, but not limited to, the loss of marital assets in the amount of Five Hundred Thousand Dollars ($500,000.00). WHEREFORE, Plaintiff demands judgment against Defendant in an amount in excess of Fifty Thousand Dollars ($50,000.00), together with interest and costs, to provide partial compensation for the significant damages. SMIGEL, ANDERSON & ACKS Date: 17.O a By: q4llx6u? LeRoy Smi I, Esquire ID 09617 2917 North Front Street Harrisburg, PA 17110-1260 (717) 234-2401 Attomeys for Plaintiff •3- 37 VERIFICATION I, LEWIS E. ATKINSON, Plaintif, verify that the statements made in this Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unswom falsification to authorities. Date: Z oo ye ^ C 4nj?,?, _ LEWIS E. ATKINSON, Plaintiff i ?Y J 440&j41P,n-Nupt W Atra VAvu14 nxnnno.1e,i996 W POST-NUPTIAL AGREEMENT This post-nuptial agreement effective the 2nd day of December, 1996, by and between MARY ELIZABETH ATKINSON (hereafter "Betsy") and LEWIS E. ATKINSON (hereafter "Lew"), in contemplation and consideration of their ongoing marital relationship. WHEREAS, the parties to this Agreement were married on July 27, 1975 at Pitman, New Jersey. WHEREAS, the parties desire to define their property rights and any claims for care, support and maintenance or other similar payments to the other. NOW THEREFORE, the parties, intending to be legally bound and in consideration of the foregoing premises and mutual covenants hereafter, and intending to maintain a relationship with mutual love and affection, do agree and stipulate as follows: PART A 1. Betsy will pay all the remaining expenses incident to Teague's and Kelly's college education. 2. Betsy will pay all current debt owed by either or both parties I' to the Internal Revenue service. 3. Betsy forgives the "loan" in the amount of $2,000 which Lew owes to her. The "loan" was made during the marriage to pay off a credit card in Lew's name alone which contained marital debt. 4. Betsy shall immediately terminate her relationship with James Michael Evans of Pennsboro Drive, Mechanicsburg, Pennsylvania. Betsy shall have no further contact with James Michael Evans by telephone, in do person, correspondence, electronic mail, or in any manner. Betsy will not engage in any other adulterous relationship. (a) In the event there is a breach of this paragraph 4, Betsy agrees to: (1) consent to a divorce if requested to do so by Lew; (2) Pay the sum of $50,000 to Lew upon the filing of the complaint in divorce whether filed by Betsy or Lew. (b) Lew will not engage in any adulterous relationship. (1) In the event there is a breach of this paragraph 4(b), Lew agrees to: a) consent to a divorce if requested to do so by Betsy; b) Pay the sum of $50,000 to Betsy upon the filing of the complaint in divorce whether filed by Betsy or Lew. 5. If the parties hereto purchase a vacation home, the home will be purchased in joint names and held as entireties property, if and only, if, both parties contribute an equal share towards the purchase and/or down payment. 6. The parties will continue their prior practice of tax allocation in regard to the filing of their joint income tax return. Each party's responsibility towards any tax owed and/or entitlement to a share of any tax refund will be considered by determining each party's income, taxes paid and taxes due. The interest deduction available for the mortgage for the primary place of residence will be apportioned between the parties in consideration of the expenses paid by each of them. (a) For example, if Betsy pays $16,000 for the years expenses (mortgage and maintenance) and Lew pays $8,000 for his living expenses (apartment/room and maintenance), then 2/3 of the allowable interest 2 deduction would be allocated to Betsy in the calculation of taxes. 7. The parties acknowledge and agree that the income and appreciation of the trust established for the benefit of Betsy by her late father, George McKeag, shall be recognized as marital property of the parties. 8. The calculation of said income and appreciation runs from the value that accumulated from the date of the marriage through the date of separation and again from December 2, 1996, the date the parties signed the attached preliminary agreement (attached hereto as Exhibit "A") through any future date of separation. By December 31, 1996, Betsy will set up a joint account which requires both parties' signatures for all withdrawals. Betsy will instruct the trust administrator to forward all interest checks to this newly established joint account and deposit all interest obtained from the trust after December 2, 1996. PART B 1. Lew and Betsy will maintain separate checking accounts until Lew has paid off all of his debts in full. Lew will make a good faith effort to expeditiously accomplish the payment of all debts as soon as possible. Lew will not acquire any additional debt or direct his earnings to any investments/ savings, other than his 401K, unless specifically approved by Betsy. By December 31, 1996, Lew will provide to Betsy a' detailed listing of debts owed along with the estimated monthly payments and the estimated payoff date. 2. All bills that contain itemized charges will be made available for review by each party regardless of in whose name the bill appears. All statements for checking and savings accounts will be made available 3 CiD to both parties for review. 3. At the time Lew has paid off all of his debts, a joint checking account will be established in which both parties will deposit their salaries and from which all household expenses, including Lew's room rental and day-to-day expenses, including but not limited to gifts and vacations, shall be paid. The parties agree that Betsy will be the primary custodian of this checking account which will only require the signature of one of the parties on issued checks. Each party agrees that neither will withdraw any significant amount of money from this account without the knowledge and permission of the other. 4. Following payment of Lew's debts and the establishment of the joint checking account referenced in paragraph 3, the parties will consult with each other and make joint family investments and financial transactions, with the exception of the following: (a) Betsy will continue to direct the investment of her trust funds; (b) Lew will continue to direct the investment of his 401K plan; (c) Betsy will primarily maintain and disburse the funds from the joint checking and savings accounts (except the joint checking account containing the trust interest). 5. Neither party will acquire any additional debt unless specifically approved by the other. 6. Lew agrees to use his best efforts to repair the credit report deficiencies resulting from transactions with Hamilton Bank. The parties have agreed that best efforts will be defined as, at a minimum, two telephone calls and one letter per month. These communications 4 O3 r-?,? shall be to, as an example, Hamilton Bank, other credit agencies and/or applicable attorneys. The efforts shall continue until significant improvement is made on the credit report or it becomes obvious to counsel that no additional improvement is forthcoming. Lew will be responsible for and will pay all attorneys' fees incurred in this regard. 7. Both parties agree that all new charges to credit cards will be paid in full unless the parties have agreed otherwise or there are mitigating circumstances such as delayed reimbursement of business expenses. If this occurs, the other party shall be fully and promptly informed. 8. Except for business requirements, Lew shall refrain from making any credit card cash advances. 9. By December 31, 1996, Lew will return all household furnishings in his possession and Betsy will pay to Lew or directly to. one of his creditors, the sum of $4,500. This payment will result in all current household furnishings belonging solely to Betsy. Any acquisitions following the signing of this Agreement shall be documented by the parties as to the source of funds used to make the purchase. The parties shall maintain this list and will agree to equitably divide the property on the list in the event of a divorce. 10. Beginning January, 1997, Lew and Betsy will attend marital counseling for a minimum of six months at intervals of two to four weeks. Betsy will have the responsibility of identifying the therapist and arranging for the scheduling. The parties agree to discuss any topic brought forth by the other party and not found objectionable by 5 Q?Y j the therapist. 11. Betsy will maintain exclusive control of her trust funds in regard to the disbursement of any amounts from the principal and/or gifts to her. Any future calculations of appreciation of the trust fund will include these amounts in evaluating the original fund amount and the then present value. 12. In the event of a divorce, the parties agree that Betsy will receive credit for the Internal Revenue Service payments made on Lewfs behalf and also for the loan which she has forgiven. PART C 1. Betsy and Lew each acknowledge that, prior to the execution of this Agreement, they each have had the opportunity to employ, consult with and be represented by separate and independent legal counsel of his or her own choosing. Betsy and Lew further acknowledge that each has read this Agreement and its exhibit. Betsy and Lew have each had the opportunity to have this Agreement fully explained as to the meaning and legal consequences of this Agreement. 2. In the event any provision or provisions of this Agreement are deemed unlawful, illegal, void, voidable or unenforceable as a matter of law, then the remainder of the Agreement not affected shall be enforceable as if the illegally, unlawfully, void, voidable or unenforceable provisions had not been set forth herein. 3. Any modification or waiver of any of the provisions of this Agreement shall be effective only if made in writing and executed by both parties. 4. The waiver of either party of any breach of this Agreement by 6 C?D the other party shall not be deemed a waiver of the same, or any other provision of this Agreement, nor shall any action by either party inconsistent with his or her rights which exist to that party under this Agreement be considered to be a waiver of that right or any other rights existing under this Agreement. 5. This Agreement shall be construed under the laws of the Commonwealth of Pennsylvania regardless of the present or future residence or domicile of the marriage or either of the parties. 6. This instrument contains the entire understandings, promises and covenants between the parties and supersedes any and all prior agreements and negotiations to the extent that they are inconsistent herewith. This Agreement shall not be modifiable except upon written modification signed by both Betsy and Lew. 7. No persons shall have a right or cause of action arising or resulting from this Agreement except the parties hereto and their successors in interest. 8. Each party shall execute any instruments or documents at any time requested by the other party which are necessary or proper to effectuate this Agreement. 9. Each of the parties agrees that the terms of this Agreement are fair and reasonable and not unconscionable. 7 Q41D IN WITNESS WHEREOF, the parties do sign and seal this Agreement on the date above stated, intending to be legally bound thereby. Witness Lihm 11A rn?v?,eJ? NARY g" "K?S'--__-A ETI??+TKINSON? LEWIS E. ATKINSON A -77) ACKNOWLEDGMENT COMMONWEALTH OF PENNSYLVANIA SS. COUNTY OF DAUPHIN rte, 7 On this, the day of 044 CAT&?? a 199, before me, the undersigned officer, personally a erred Ma Elizabeth Atkinson , known to me or satisfactorily proven to a the person whose name is subscribed to the within instrument, and acknowledged that she executed same for the purposes therein set forth. IN WITNESS WHEREOF, I have eunto_ set my hand and official seal. Notary blic My Commission Expires: Notarial Seal Kimberly A. Stevens, Notary Public Hamsburg, Dauphln Counbj My Commission Expires April 29, 2000 Member, Pennsylvania Association of Notaries ACKNOWLEDGMENT COMMONWEALTH OF PENNSYLVANIA COUNTY OF DAUPHIN SS. On this, the ! day of c_ PL ?? IF 1996, before me, the undersigned officer,-personally appeared Lewis E. Atkinson , known to me or satisfactorily proven to be the person whose name is subscribed to the within instrument, and acknowledged that he executed same for the purposes therein set forth. IN WITNESS WHEREOF, I have hereu o set my han and official seal. ( '7 C , J?'4 ? -T Notary Pub iE My Commiss pires Notarial Seal Vicky L. Fitz, Notary Public Harrisburg, Dauphin County My Commission Expires Dec. 5, 1998 r. Per?n::y!:a..a Asxdadcn cl Notaries 9 ,o__lg CERTIFICATE OF SERVICE AND NOW, this 24"' day of February, 2000, i, Francis E. Marshall, Jr., Esquire, hereby certify that I did serve a true and correct copy of the foregoing document, upon all counsel of record by depositing, or causing to be deposited, same in the U.S. mail, postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: By First-Class Mail LeRoy Smigel, Esquire Smigel, Anderson & Sacks 2917 North Front Street Harrisburg, PA 17110-1260 Attorney for Plaintiff 01W u Q ? L C!1 F = L .? V1 Q N u Q \1 00 '.... do" i; 0 m 0 w t'aw's PRAECIPE• FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARYjOF CUMBERLAND COUNTY: Please, list the within matter for the nest: ? Pre-Trial Argument Court © Areument Court CAPTION OF CASE (entire caption must be stated in full) Lewis E. Atkinson (Plaintiff) VS. James Michael Evans (Defendant) VS. No. 99 Civil 2973 19 99 1. State matter to be argued (f. e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminary Objections to Plaintiff's Complaint 2. Identify counsel who will argue case: (a) for plaintiff: LeRoy Smigel, Esquire (b) for defendant: Francis E. Marshall, Jr., Esquire 3. I will notify all parties in writine .within two days that this ease has been listed for argument. _ Att. I.D. No: 27594 Dated: H1 t.vtFra,xnncc} is 10: E. DeMarsfendahant ll, Jr., Esquire CERTIFICATE OF SERVICE AND NOW, this 24th day of February , 2000, I, Francis E. Marshall, Jr., Esquire, hereby certify that I did serve a true and correct copy of the foregoing document upon all counsel of record by depositing, or causing to be deposited, same in the U.S. mail, postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: By First-Class Mail: LeRoy Smigel, Esquire Smigel, Anderson & Sacks 2917 North Front Street Harrisburg, PA 17110-1260 Attorney for Plaintiff h!? sz? 4406.2.4/Answer to Preliminary mbjcctions/AVL/kld 313/003:38 I'M - - LEWIS E. ATKINSON, PLAINTIFF V. JAMES MICHAEL EVANS, DEFENDANT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 99-2973 CIVIL ACTION - LAW PLAINTIFF'S ANSWER TO DEFENDANT'S PRELIMINARY OBJECTIONS AND NOW, comes Plaintiff, Lewis E. Atkinson, by and through his counsel, Smigel, Anderson & Sacks and answers Defendant's Preliminary Objections as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Denied. By way of further answer, Plaintiff alleges Defendant is liable in tort for intentionally interfering with the performance of the Post-Nuptial Agreement. The Agreement is separate and apart from the Plaintiffs husband/wife relationship. 5. Admitted. 6. Denied. By way of further answer, Plaintiff alleges that Defendant conspired with Plaintiffs former wife to illegally divert marital property and dissipate the marital estate. 7. Denied. By way of further answer, this is a legal conclusion to which no response is required. To the extent a response is required, the averment is specifically denied. QS 8. Denied. By way of further answer, this is a legal conclusion to which no response is required. To the extent a response is required, the averment is specifically denied. 9. Denied. By way of further answer, this is a legal conclusion to which no response is required. To the extent a response is required, the averment is specifically denied. 10. Admitted in part and denied in part. Plaintiff admits the Agreement arose as a result of the marital relationship. The Agreement, however, is a contract separate and apart from the husband/wife relationship. By way of further answer, an agreement with a similar provision would be equally enforceable among non-married parties and could exist in the absence of a marital relationship. 11. Denied. By way of further answer, this is a legal conclusion to which no response is required. To the extent a response is required, the averment is specifically denied. 12. Denied. By way of further answer, Plaintiff has suffered pecuniary loss caused by the conduct of Defendant. 13. Denied. By way of further answer, Plaintiff's cause of action alleging Defendant's interference with contractual relations arises from a valid contract, separate and apart from the marital relationship. The conspiracy cause of action is unrelated to the agreement as Defendant acted in combination with Plaintiff's wife to illegally dissipate the marital estate. 14. Admitted. 15. Denied. By way of further answer, Defendant has failed to cite a provision of the Agreement that would prevent Plaintiff from seeking a remedy from Defendant. Even assuming the Agreement was Plaintiffs exclusive remedy against his wife, Plaintiff is entitled to seek a remedy from Defendant who was not a party to the Agreement. ss 16. Denied. By way of further answer, this is a legal conclusion to which no response is required. To the extent a response is required, the averment is specifically denied. 17. Denied. By way of further answer, this is a legal conclusion to which no response is required. To the extent a response is required, the averment is specifically denied. 18. Denied. By way of further answer, this is a legal conclusion to which no response is N required. To the extent a response is required, the averment is specifically denied. 19. Denied. By way of further answer, this is a legal conclusion to which no response is required. To the extent a response is required, the averment is specifically denied. 20. Denied. By way of further answer, this is a legal conclusion to which no response is II required, To the extent a response is required, the averment is specifically denied. 21. Denied. By way of further answer, this is a legal conclusion to which no response is required. To the extent a response is required, the averment is specifically denied. WHEREFORE, Plaintiff, Lewis E. Atkinson, respectfully requests that this Court dismiss Defendant's Preliminary Objections. SMIGEL, A`N'D,EERSON & SACKS Date: March 13, 2000 By: LeRoy Smigel, Esquire ID #09617 2917 North Front Street Harrisburg, PA 17110-1260 (717) 234-2401 Attorneys for Plaintiff cstT LEWIS E. ATKINSON, PLAINTIFF V. JAMES MICHAEL EVANS, DEFENDANT ,--. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 99-2973 CIVIL ACTION - LAW CERTIFICATE OF SERVICE I, LeRoy Smigel, Esquire, attorney for Plaintiff in the above-captioned matter, do hereby certify that I served a true and correct copy of the foregoing Answer to Defendant's Preliminary Objections on counsel for Defendant by depositing same in the U.S. Mail, first class, postage prepaid, on the 13th day of March, 2000, addressed as follows: Francis E. Marshall, Jr., Esquire Marshall & Haddick, P.C. 20 South 36i4 Street Camp Hill, PA 17011 SMIGEL, ANDERSON & SACKS -&?y. ?h By: J LeRoy Smigel, Esquire ID #109617 2917 North Front Street Harrisburg, PA 17110-1260 (717) 234-2401 Attorneys for Plaintiff S7 i C? G I' i' c i ch L M Ug ?u ? U4 ' w ? . m ?uw aaa ? ? i C3. O CJ PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) LEWIS E. ATKINSON, (Plaintiff) V5. JAMES MICHAEL EVANS, (Defendant) No, 99-2973 Civil 19 99 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Brief in Support of Preliminary 'Objections to Plaintiff's Complaint 2. Identify counsel who will argue case: (a) for plaintiff: Address: (b) for defendant: Address: LeRoy Smigel, Esquire Smigel, Anderson & Sacks 2219 North Front Street, Harrisburg, PA 17110 Francis E. Marshall., Jr., Esquire Marshall & Haddick, P.C. 20 South 36th Street, Camp Hill, PA 17011 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: May 31, 2000 Dated: 5-11-00 D Attorney for Defendant CERTIFICATE OF SERVICE AND NOW, this 11th day of May, 2000, I, Francis E. Marshall, Jr., Esquire, hereby certify that I did serve a true and correct copy of the foregoing PRAECIPE TO LIST CASE FOR ARGUMENT upon all counsel of record by depositing, or causing to be deposited, same in the U.S. mail, postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: AX,First-Class Mail: LeRoy Smigel, Esquire Smigel, Anderson & Sacks 2917 North Front Street Harrisburg, PA 17110-1260 Attorney for Plaintiff Francis E. Marshall, Jr., Esquire 0 MR.. cr C-) jl CL. ? kwv* . 4 LEWIS E. ATKINSON, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. 99-2973 CIVIL JAMES MICHAEL EVANS, Defendant : CJVILACTION-LAW IN RE: PRELIMINARY OBJECTIONS OF THE DEFENDANT BEFORE HOFFER, P.J.. AND HESS J ORDER AND NOW, this 1-5? r day of August, 2000, the preliminary objections of the defendant to the plaintiff's complaint in the nature of a demurrer and for failure of the pleading to conform to law, are SUSTAINED and the complaint is DISMISSED with prejudice. BY THE, COURT, Kevi . Hess, J. LeRoy Smigel, Esquire For the Plaintiff Francis E. Marshall, Jr., Esquire Alan M. Robinson, Esquire L'00 For the Defendant Il//?' J Am ? 1 ?D r- ?if„Y ii CLjIS',i!i:i iii !• j l (:? ? •??•"?? LEWIS E. ATKINSON, Plaintiff vs. JAMES MICHAEL EVANS, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 99-2973 CIVIL CIVIL ACTION - LAW IN RE: PRELIMINARY OBJECTIONS OF THE DEPENDANT BEFORE HOFFER P.J.. AND HESS J. OPINION AND ORDER The question posed by this case is whether we ought to dismiss the plaintiff's complaint for interference with contractual relations where the contract involved is a post-nuptial agreement and where the interference involves the continuation of an adulterous relationship. To our knowledge, this is a matter of first impression. The factual averments in the complaint are not complicated. The plaintiff was married to Mary Elizabeth Atkinson on July 27, 1975. In early 1996, the plaintiff and his wife separated as a result of an affair between Mary and the defendant, James Evans. On December 2, 1996, the plaintiff entered into a post-nuptial agreement which dealt with the parties' property rights and duties in the continuing marriage. One of the paragraphs of the agreement provided that Mary Elizabeth Atkinson would have no further contact with the defendant in any manner, including telephone, correspondence, e-mail, etc. The complaint further alleges that the defendant had knowledge of the existence of the agreement. Notwithstanding that Mr. Evans knew that he was to have no contact with his inamorata, he (allegedly) made phone calls, had sexual relations and otherwise induced or caused Mary Atkinson to breach her agreement with the plaintiff. This forms the basis of a count sounding in tortious interference with contract. 99-2973 CIVIL The other count in the complaint alleges a civil conspiracy. It is contended that, in another breach of her agreement with the plaintiff, Ms. Atkinson diverted cash from the marital estate. While it is contended that Mr. Evans wrongfully obtained marital property from Ms. Atkinson, the gravamen of this conspiracy count is clearly the violation of the agreement between husband and wife. We agree with the defendant that the nature of the wrong alleged and the remedies sought demonstrate an attempt on the part of the plaintiff to recover for torts which have been legislatively or judicially abolished. Historically, a third party could be held liable for interfering with a marital relationship. The Pennsylvania legislature, however, has explicitly abolished all civil actions for alienation of affections of husband or wife. See 23 Pa.C.S.A. 1901(a). t To the extent that suit has been brought because of an illicit sexual relationship, the case is reminiscent of the former cause of action of criminal conversation. This cause of action has also been abolished. This the Supreme Court did in Fadden v. Lenkner, 469 Pa. 272, 365 A,2d 147 (1976). The cause of action is made out upon plaintiffs proof that while married to plaintiff, plaintiffs spouse and the defendant engaged in at least a single act of sexual intercourse without the consent of the plaintiff.... There are but two possible complete defenses to the action: One, obviously, is an outright denial by the defendant of having had any such relation with plaintiffs spouse; the other occurs upon proof that the Plaintiff consented to the adulterous relation. (Citations omitted.) An exception exists %%I)crc the defendant is a parent, sibling, or person formerly is loco parentis to the spouse of the plaintiff 23 Pa.C.S.A. § 1901(b). It is clear that an exception does not apply in this case. Q1% 99-2973 CIVIL Id. at 277, 365 A.2d at 149. In determining to abolish the cause of action, the Supreme Court concluded that: Me believe the cause of action itself is an anachronism and that in today's society it is unreasonable to impose upon a defendant such harsh results without affording any real opportunity to interject logically valid defenses on the merits such as the role of the plaintiff's spouse in the adulterous relationship or the quality of the plaintiffs marriage prior to the occurrence of the acts constituting the tort. Id. at 281, 365 A.2d at 51. Although the plaintiff has titled his complaint as pleading causes for interference with contractual relations and civil conspiracy, he is, in reality, seeking to recover monetary damages for interference with his marriage. It is true that Pennsylvania recognizes a cause of action for interference with performance of a contract by a third person. Under this theory: One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the third person's failure to perform the contract. Adler, Barish. Daniels Levin and Cresskof v. Fostein, 482 Pa. 416, 431, 393 A.2d 1175, 1183 (1978). As can be seen from the foregoing, the cause of action specifically does not apply to contracts to marry. As noted in the defendant's brief: [T)he post-nuptial agreement is not a contract to many. However, by definition, a post-nuptial agreement cannot exist in the absence of the marital contract and is so intertwined with the spouses' relationship that the rationale behind the Qt.D 99-2973 CIVIL '" 1 abolition of the torts of alienation of affection and criminal conversation should apply in a case such as this. Defendant's Brief, p.5. In any event, we fail to see a distinction between a "contract to marry" and contract to remain married. With regard to the complaint for civil conspiracy, the object of the conspiracy was a violation of the marital agreement. For reasons which we have already set out, the object of the conspiracy involves causes of action which are no longer recognized. Accordingly, this count will also be dismissed. ORDER r AND NOW, this 15- day of August, 2000, the preliminary objections of the defendant to the plaintiff s complaint in the nature of a demurrer and for failure of the pleading to conform to law, are SUSTAINED and the complaint is DISMISSED with prejudice. LeRoy Smigel, Esquire For the Plaintiff Francis E. Marshall, Jr., Esquire Alan M. Robinson, Esquire For the Defendant :rlm 4 =..5 BY THE COURT, MUkId/Notice of Appeal/3cplcmber 12, 2000 2:08 I'M 1 LEWIS E. ATKINSON, IN THE COURT OF COMMON PLEAS PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. : No. 99-2973 JAMES MICHAEL EVANS, DEFENDANT CIVIL ACTION - LAW NOTICE OF APPEAL Notice is hereby given that Lewis E. Atkinson, Plaintiff above named, hereby appeals to the Superior Court of Pennsylvania from the Order entered in this matter on the 15th day of August, 2000. This Order has been entered in the docket as evidenced by the attached certified copy of the docket entry. Date: September 12, 2000 SMIGEL, ANDERSON & SACKS I Le oy Smigel, Esquire I.D. #: 09617 Ann V. Levin, Esquire I.D.#: 70259 2917 North Front Street Harrisburg, PA 17110 (717) 234-2401 Attorneys for Plaintiff ?iLl:) PYS510 Cumb'*?.and County Prothonotary'?ffice Page 1 Civil Case Inquiry 1999-02973 ATKINSON LEWIS E (vs) EVANS JAMES MICHAEL Reference No..: Filed........: 5/17/1999 Case Type.....: WRIT OF SUMMONS Time.........: 1:43 Judgment. .. : .00 Execution Date 0/00/0000 Judge Assigned: Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: General Index Attorney Info ATKINSON LEWIS E PLAINTIFF SMIGEL LEROY EVANS JAMES MICHAEL DEFENDANT MARSHALL FRANCIS E JR 6350 PENNSBORO DRIVE ROBINSON ALAN M MECHANICSBURG PA 17055 * Date Entries ******************************************************************************** FIRST ENTRY 5/17/1999 PRAECIPE-FOR WRIT OF SUMMONS-IN-CIVIL-ACTION-WRIT-OF SUMMONS-ISSUED 5/25/1999 SHERIFF'S RETURN FILED. Litiqant.: EVANS JAMES MICHAEL SERVED : 5/24/99 WRIT OF SUMMONS Costs....: $32.82 Pd By: SMIGEL, ANDERSON & SACKS 05/25/1999 ------------------------------------------------------------------- 1/18/2000 PRAECIPE FOR RULE TO FILE COMPLAINT BY FRANCIS E MARSHALL JR ESQ ------------------------------------------------------------------- 1/18/2000 RULE TO FILE COMPLAINT BY CURTIS R LONG PROTHONOTARY ------------------------------------------------------------------- 2/08/2000 COMPLAINT ------------------------------------------------------------------ 2/15/2000 ENTRY OF APPEARANCE FOR DEFENDANT BY FRANCIS E MARSHALL JR ESQ AND ALAN M ROBINSON ESQ ------------------------------------------------------------------- 2/14/2000 ACCEPTANCE - OF- SERVICE ------------------------------------------------------------------ 2/24/2000 PRELIMINARY- OBJECTIONS - TO - PLAINTIFF'S - COMPLAINT --------------------------------------------------------------- 2/24/2000 PRAECIPE FOR LISTING CASE FOR ARGUMENT BY FRANCIS E MARSHALL JR ESQ DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT ------------------------------------------------------------------- 3/15/2000 PLAINTIFF'S ANSWER TO DEFENDANT'S PRELIMINARY OBJECTIONS ---------------------------------------------------------------------- 5/11/2000 PRAECIPE FOR LISTING CASE FOR ARGUMENT BY FRANCIS E MARSHALL JR ESQ ____ --------------------------------------------------------------- 8/16/2000 ORDER - DATED 8/15/00 - IN RE PRELIMINARY OBJECTIONS OF THE DEFT TO THE PLFFS COMPLAINT - SUSTAINED - COMPLAINT IS DISMISSED WITH PREJUDICE - BY THE COURT KEVIN A HESS J COPIES MAILED 8/16/00 - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * Fees & Debits Beq Bal Pmts/Ad End Bal WRIT OF SUMMONS 35.00 35.00 .00 TAX ON WRIT 50 .50 .00 SETTLEMENT 5.00 5.00 .00 JCP FEE 5.00 5.00 .00 ------------------------ ------------ 45.50 45.50 .00 * End of Case Information TRUE COPS' FROM RECORD In Tes*wy whereof, f here unto hand and tde -of said 1?? /AVUIdd/Rpmmbar 12.20002:21 I'M LEWIS E. ATKINSON, : IN THE COURT OF COMMON PLEAS PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA V. : No. 99-2973 JAMES MICHAEL EVANS, DEFENDANT CIVIL ACTION - LAW CERTIFICATE OF SERVICE I, Ann V. Levin, Esquire, attorney for Plaintiff in the above-captioned matter, do hereby certify that I served a true and correct copy of the Notice of Appeal upon the persons listed below by depositing same in the U.S. Mail, first class, postage prepaid, on September 13, 2000 addressed as follows: Francis E. Marshall, Jr., Esq. Richard J. Pierce, Court Administrator Marshall & Haddick, P.C. Cumberland County Courthouse 20 South 36`h Street One Courthouse Square Camp Hill, PA 17011 Carlisle, PA 17013 The Honorable Kevin A. Hess Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 SMIGEL, ANDERS/ON!!& SACKS By: Le oy Smigel, Esquire I.D. #: 09617 Arm V. Levin, Esquire 1.D.#: 70259 2917 North Front Street Harrisburg, PA 17110 (717) 234-2401 Attorneys for Plaintiff U o ? o IOW4 2-q.73 2:23 P.M. Appeal Docket Sheet Docket Number: Page 1 of 2 September 25, 2000 1681 MDA 2000 Superior Court of Pennsylvania ZI& LEWIS E. ATKINSON, Appellant V. JAMES MICHAEL EVANS, Appellee initiating Document: Notice of Appeal Case Status: Active Case Processing Status: September 20, 2000 Journal Number: Case Category: Civil Awaiting Original Record CaseType: Civil Action Law Consolidated Docket Nos.: Related Docket Nos.: SCHEDULED EVENT Next Event Type: Docketing Statement Received Next Event Due Date: October 9, 2000 Next Event Type: Original Record Received Next Event Due Date: October 23, 2000 COUNSEL INFORMATION Appellant Atkinson, Lewis E Pro Se: Appoint Counsel Status: IFP Status: No Appellant Attorney Information: Attorney: Smigel, LeRoy Bar No.: 09617 Law Firm: Smigel, Anderson & Sacks Address: Smigel Anderson & Sacks 2917 N Front St Harrisburg, PA 17110 Phone No.: (717)234.2401 Fax No.: (717)234-3611 Receive Mail: Yes Appellee Evans, James Michael Pro Se: Appoint Counsel Status: IFP Status: Appellee Attorney Information: Attorney: Marshall, Francis E. 9/25/00 3023 r__ L: C) 2:23 Py ?.,1 Appeal Docket Sheet Docket Number: 1881 MDA 2000 Page 2 of 2 September 25, 2000 f'4 Superior Court of Pennsylvania XV& Bar No.: 27594 Law Firm: Marshall, Smith &Haddick, P.C. Address: Marshall Smith & Haddick 20 South 36th Street Camp Hill, PA 17011 Phone No.: (717)731-4800 Fax No.: (717)731-4803 Receive Mail: Yes FEE INFORMATION Receipt No.: TRIAL COURT/AGENCY INFORMATION Court Below: Cumberland County Court of Common Pleas County: Cumberland Division: Civil Date of Order Appealed From: August 15, 2000 Judicial District: 9 Date Documents Received: September 20, 2000 Date Notice of Appeal Filed: September 13, 2000 Order Type: Order Entered OTN: Judge: Hess, Kevin A. Lower Court Docket No.: 99-2973 Judge ORIGINAL RECORD CONTENTS Original Record Item Filed Date Content/Description Data of Remand of Record: BRIEFS DOCKET ENTRIES Filed Date Docket Entry/Document Name Party Type Filed By September 20, 2000 Notice of Appeal Filed Appellant Atkinson, Lewis E. September 25, 2000 Docketing Statement Exited (Civil) Middle District Filing Office 9/25100 hv. son c CV 7 rte!>' ? cr_ cl: Cl. :J Li G'1 lJ r