HomeMy WebLinkAbout99-04862
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SHERIFF'S RETURN - REGULAR
CASE NO: 1999-04862 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
SHOWAKER EDGAR L
VS.
KEEBAUGH JOSEPHINE L
SHANNON SUNDAY Sheriff or Deputy Sheriff of
CUMBERLAND County, Pennsylvania, who being duly sworn according
to law, says, the within COMPLAINT was served
upon KEEBAUGH JOSEPHINE L the
defendant, at 9:20 HOURS, on the 26th day of August
1999 at 301 NEALY ROAD
NEWVILLE, PA 17241 ,CUMBERLAND
County, Pennsylvania, by handing to JOSEPHINE KEEBAUGH
a true and attested copy of the COMPLAINT
together with NOTICE FOR PARTITION FO PERSONAL PROPERTY
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs: So answers:
Docketing 18.00
Affidavit 8 .00ed?`?I4?
o A
Surcharge 8.00 oma ine eri
8-RICHA D9L. WEBBER, JR.
by Q
epu e i
Sworn and subscribed to before me
this ;I6 t"_ day of
19 A.D..1
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EDGAR L. SHOWAKER, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
V. NO. 99-4862 CIVIL TERM
JOSEPHINE L. KEEBAUGH,
Defendant CIVIL ACTION-LAW
RESPONSE TO COUNTERCLAIM
AND NOW, comes EDGAR L. SHOWAKER, by and through Richard L. Webber, Jr.,
and responds to the Counterclaim filed by the Defendant, JOSEPHINE L. KEEBAUGH, as
follows:
1. ADMITTED in part and DENIED in part. It is ADMITTED that the Plaintiff removed the
tractor from Defendants remises on or about the time that the parties separated. It is DENIED
that the tractor belongs to the Defendant. To the contrary, it belongs to the Plaintiff. Exhibit A,
referenced by Defendant, is not attached to the copy of the pleadings served upon the
undersigned counsel, nor is it attached to the original pleadings filed at the Prothonotary's Office.
Defendant's allegation concerning the value of the tractor is DENIED. The purchase
price of the tractor was $ 2,561.00, and it has since depreciated.
2. ADMITTED in part and DENIED in part. It is ADMITTED that Plaintiff removed the high
chair. It is DENIED that it belongs to Defendant. To the contrary, it belongs to Plaintiff, having
been purchased for him with his funds.
Plaintiff does not have information concerning the current value of the highchair and
therefore denies that it has a fair market value of $450.00. Strict proof is demanded at trial.
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J.
3. ADMITTED in part and DENIED in part. It is ADMITTED that Plaintiff removed the glass
rolling pin. It is DENIED that Defendant owns it. Plaintiff owns the rolling pin.
4. DENIED, for reasons stated in paragraphs I through 3 above.
WHEREFORE, Plaintiff respectfully requests that Defendant's Counterclaim be
dismissed.
?L?t -,
Richard L. Webber, Jr.
Attorney for Plaintiff
366 Green Spring Road
P.O. Box 40
Newville, PA 17241-0040
(717) 776-6566
I verify that the statements made in this Counterclaim are true and correct, I understand
that false statements herein are subject to the penalties of 18 Pa. C.S. Section 4904 relating to
unsworn falsification to authorities.
Date:, /-O v7??
11 Oe
E AR L. S OW KER
Plaintiff
NOV 2 819,9,x\
EDGAR L. SHOWAKER, : IN THE COURT OF COMMON PLEAS OF
Plaintiff/Petitioner : CUMBERLAND COUNTY, PENNSYLVANIA
V. NO. 99-4862 CIVIL TERM
JOSEPHINE L. KEEBAUGH,
Defendant/Respondent CIVIL ACTION -LAW
ORDER
AND NOW, , 1999, upon consideration of
Plaintiff/Petitioner's Petition for Appointment of a Trustee under former Act of April 27, 1927,
Pub.L.460, it is ORDERED and DECREED:
1. That , is appointed Trustee to
take possession of the following personal property after first entering security in the sum of
2. Promptly after the Trustee has entered his security, he shall cause an appraisal to be
made of the value of the property by disinterested and qualified appraisers and shall report the
appraisal to the Court.
BY THE COURT:
J.
Richard L. Webber, Jr.,
Attorney for Plaintiff/Petitioner
Sally J. Winder,
Attorney for Defendant/Respondent
NOV 2 9 IT
EDGAR L. SHOWAKER, IN THE COURT OF COMMON PLEAS OF
Plaintiff?Petitioncr C'UNl13F.RLAND COUNTY, PENNSYLVANIA
?. NO. 99-4862 CIVIL TERM
JOSEPHINE L. KEEBAUGFI,
Defendant/Respondent CIVIL ACTION - LAW
ORDER
AND NOW, 1999, upon consideration of
Plaintiff%PelitioneCs Petition i Appointment of a Trustee under former Act of April 27, 1927,
I'1.111.1..460. it is ORDERED and DECRIED:
1. That __ is appointed Trustee to
take possession ol'the lollowing personal propcrp after first entering security in the stall of
Prompth utter the 'Trustcc has entered his securit , he shall cause an appraisal to be
made of the % aluc of the propcrp he disinterestcd and klualified appraisers and shall report the
appraisal to the Court.
BY TI H: ('01. JRT:
Richard L. Webber. Jr.,
Attorney for Plaintiff/Petitioner
sallc.1. \\'inder.
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NOV 2 8
D
EDGAR L. SHOWAKER,
Plaintiff/Petitioner
V.
JOSEPHINE L. KEEBAUGH,
Defendant/Respondent
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 99-4862 CIVIL TERM
CIVIL ACTION -LAW
ORDER
AND NOW, , 1999, upon consideration of
Plaintiff/Petitioner's Petition for Appointment of a Trustee under former Act of April 27, 1927,
Pub.L.460, it is ORDERED and DECREED:
1. That , is appointed Trustee to
take possession of the following personal property after first entering security in the sum of
2. Promptly after the Trustee has entered his security, he shall cause an appraisal to be
made of the value of the property by disinterested and qualified appraisers and shall report the
appraisal to the Court.
BY THE COURT:
J.
Richard L. Webber, Jr.,
Attorney for Plaintiff/Petitioner
Sally J. Winder,
Attorney for Defendant/Respondent
l
EDGAR L. SHOWAKER,
Plaintiff/Petitioner
V.
JOSEPHINE L. KEEBAUGH,
Defendant/Respondent
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-4862 CIVIL TERM
CIVIL ACTION -LAW
PETITION FOR APPOINTMENT OF TRUSTEE
AND NOW comes the Plaintiff/Petitioner, Edgar L. Showaker, and petitions your Honorable
Court for the appointment of a Trustee, pursuant to 68 P.S. 111, averring the following:
1. Plaintiff/Petitioner is Edgar L. Showaker.
2. Defendant/Respondent is Josephine L. Keebaugh.
3. On August 11, 1999, Plaintiff/Petitioner filed a Complaint.
4. The Complaint alleges that Plaintiff/Petitioner and Defendant/Respondent own jointly a 1996
Monte Carlo automobile.
5. In the Complaint, Plaintiff/Petitioner seeks the appointment of a Trustee, the ultimate sale of
the vehicle, and related relief.
6. On August 26, 1999, the Complaint was served on Defendant by the Cumberland County
Sheriff.
7. On or about October 6, 1999, Defendant/Respondent filed an Answer and Counterclaim.
8. Plaintiff/Petitioner is desirous of having a Trustee appointed so that the matter can be
resolved.
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WHEREFORE, Plaintiff/Petitioner respectfully requests that you Honorable Court
appoint a Trustee for the purposes of distribution of the vechile.
n,2 -"i J
Richard L. Webber, Jr.
Attorney for Plaintiff/Petitioner
366 Green Spring Road
P.O. Box 40
Newville, PA 17241-0040
(717) 776-6566
1 verify that the statements made in this Petition are true and correct, I understand that
false statements herein are subject to the penalties of 18 Pa. C.S. Section 4904 relating to
unswom falsification to authorities.
Date: iil1y(y9 n1 / 2 w 1
Richard L. Webber, Jr.
Attorney for Plaintiff/Petitioner
PRAECIPE FOR LISTING CASE FOR TRIAL
(Must be typewritten and submitted in duplicate)
TO THE PROTHONDTARY OF CUMBERLAND COUNTY
Please list the following case:
(Check one) ( ) for JURY trial at the next term of civil court.
( % ) for trial without a jury.
----------------------------
-----------
CAPTION OF CASE
(entire caption must be stated in full) (check one)
EDGAR L. SHOWAKER
( ) Appeal from Arbitration
( )
(other)
VS.
JOSEPHINE L. KEEBAUGH
(Plaintiff)
(X ) Civil Action - Law
The trial list will be called on
and
vs.
(Defendant)
Trials commence on
Pretrials will be held on
(Briefs are due 5 days before pretrials.)
(The party listing this case for trial shall
provide forthwith a copy of the )raecipe to
all counsel, pursuant to local Rule 214.1.)
No. 99-4862 Civil Term 19
Indicate the attorney who will try case for the party who files this praecipe:
Richard L. Webber, Jr. , Attorney for Plaintiff
Indicate trial counsel for other parties if known: Sally J. Winder,
Attorney for Defendant
This case is ready for trial. Signed: "L--
Date: October 21. 2002
Print Name: Richard L. Webber. Jr.
Attorney for: Plaintiff
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EDGAR L. SHOWAKER,
Plaintiff
VS.
JOSEPHINE L. KEEBAUGH,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
99-4862 CIVIL
CIVIL ACTION - LAW
IN RE: NONJURY TRIAL
ORDER
AND NOW, this L `/` day of October, 2002, pretrial conference in the above
captioned matter is set for Thursday, December 5, 2002, at 9:00 a.m. in the Chambers of the
undersigned.
BY THE COURT,
Richard L. Webber, Jr., Esquire
For the Plaintiff
Sally J. Winder, Esquire
For the Defendant
Court Administrator
Kevin . Hess, J.
Arn
rely
V
EDGAR L. SHOWAKER,
Plaintiff
VS.
JOSEPHINE L. KEEBAUGH,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
99-4862 CIVIL
CIVIL ACTION - LAW
IN RE: PRETRIAL CONFERENCE
ORDER
Present at a pretrial conference held December 5, 2002, were Richard L. Webber, Jr.,
Esquire, attorney for the plaintiff, and Sally Winder, Esquire, attorney for the defendant.
In this case, the plaintiff seeks an order requiring that a motor vehicle, jointly owned by
the parties, be sold and that he receive one-half of the net proceeds. He is also seeking one-half
of the rental value of the motor vehicle by virtue of the fact that the defendant has had possession
of it since April 11, 1999. Counsel for the parties believe that they can settle the case.
We will set aside two hours for the trial of this matter on March 21, 2003, at 9:30 a.m. If
counsel do not confirm the trial date prior to the close of business on February 14, 2003, the
matter will be automatically stricken from the calendar.
December 5, 2002 -K, 4 Z
Ke n A. Hess, J.
Aichard L. Webber, Jr., Esquire
For the Plaintiff
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Sally J. Winder, Esquire
For the Defendant .Q
Court Administrator
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EDGAR L. SHOWAKER,
Plaintiff
VS.
JOSEPHINE L. KEEBAUGH,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
99-4862 CIVIL
CIVIL ACTION - LAW
ORDER
AND NOW, this
/S-? day of January, 2003, nonjury trial in the above captioned
matter set for March 21, 2003, is continued to Monday, March 31, 2003, at 9:30 a.m. in
Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA.
If counsel do not confirm the trial date prior to the close of business on February 14,
2003, the matter will be automatically stricken from the calendar.
BY THE COURT,
Richard L. Webber, Jr., Esquire
For the Plaintiff
Sally J. Winder, Esquire
For the Defendant
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EDGAR L. SHOWAKER,
Plaintiff
V.
JOSEPHINE L. KEEBAUGH,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
No. 99-4862 CIVIL TERM
ORDER OF COURT
AND NOW, this 22nd day of October, 2002, it
appearing that docket activity has recently occurred in the
above-captioned case, the case is stricken from the purge
list, and shall remain open.
Richard L. Webber, Jr.,
For the Plaintiff
/ Sally J. Winder, Esquire
For the Defendant
Court Administrator
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By the Court,
., ,.
EDGAR L. SHOWAKER,
Plaintiff
V.
JOSEPHINE L. KEEBAUGH,
Defendant .
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
99-4862 CIVIL TERM
CIVIL ACTION - LAW
IN RE: NONJURY TRIAL
ORDER OF COURT
AND NOW, this 31st day of March, 2003, this
matter is settled and discontinued in accordance with the
agreement of the parties as announced in open court and in their
presence, which agreement of the parties is herewith made an
Order of Court.
By the Court,
"14-1-no
A. Hess,
Richard L. Webber, Jr., Esquire
For the Plaintiff
Sally J. Winder, Esquire
For the Defendant
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EDGAR L. SHOWAKER
Plaintiff
VS.
JOSEPHINE L. KEEBAUGH
Defendant
:IN THE COURT OF COMMON PLEAS OF
:CUMBERLAND COUNTY, PENNSYLVANIA
No. 99-4862 Civil Term
Civil Action -Law
DEFENDANT"S PRETRIAL MEMORANDUM
Statement of Facts.
The Monte Carlo purchased in 1996, was titled in both names because the
Defendant was told that in order for the financing to go through Plaintiffs name was
required to be on the title. The car traded was that of Defendant. Plaintiff is incorrect in
stating that there was no encumbrance of the title to this vehicle. The contract for
purchase of the car shows an encumbrance through Dauphin Deposit as assignee of H &
H Chevrolet. The Dauphin Deposit loan through H & H Chevrolet was paid off by
Defendant re-financing her house. All payments have always been made by Defendant
and the intention was that the Monte Carlo was Defendant's car and Plaintiff had a new
truck.
Defendant agrees that she has been in possession of the car and that she has paid
all costs of maintenance and repair on the vehicle as well as all the cost of insurance.
Defendant owns and is entitled to all of the personal property claimed in the
counterclaim including the amount claimed for the lawnmower which Plaintiff
unilaterally converted to his own use and traded on a lawnmower which he took with him
when the parties separated.
Statement as to Damages.
Plaintiff has no valid claim for one-half of the net proceeds of sale of the car. The
car was intended to be Defendant's car. The car traded was Defendant's car. The car
payments have all been made by Defendant. Plaintiff has never filed a bond for taking of
the car by a Trustee as provided for by the Pennsylvania statute. Plaintiff is not entitled to
any rental value of the vehicle.
Defendant is entitle to return of the personal propem, claimed in the counterclaim
as well as the money amounts claimed as a result of the wrongful conversion of the
lawnmower by Plaintiff.
Legal Issues.
Plaintiff claims that he is entitled to partition of the vehicle by sale and division of
net proceeds. This partition remedy assumes that each co-owner has invested sums in
personal property and seeks to create a cost and benefit sharing in splitting up personal
property. However. in this instance Defendant has bome all of the expense and Plaintiff is
not entitled to a windfall. In reality there is not a windfall to Plaintiff but rather a
detriment by insisting upon sale of the vehicle because it is encumbered by a loan having
a balance greater than the value of the vehicle. Plaintiff would not be able to effect sale of
the car without embroiling himself in a dispute over the encumbrance in favor of
American General.
Fair rental value is not a valid claim for Plaintiff. Plaintiff never had possession or
used the car. He never had any expectation of use. He chose to leave the car with
Defendant. He has not pursued his right to post bond to obtain possession of the car and
he has never contributed to the maintenance. upkeep. or repair of the vehicle.
Admissibility of Testimony and Exhibits.
Defendant does not anticipate any legal issues regarding admissibility of
testimony or exhibits.
Witnesses
Josephine Keebaugh Thomas
Exhibits.
I.Contract for purchase of car and financing through Dauphin Deposit in joint
names
2. Title to vehicle.
I Dauphin Deposit financing documents showing the re-financing of the loan
4. American General documentation showing current encumbrance on the car
5. Documentation of purchase of lawnmower converted by Plaintiff
Current Status of Settlement Negotiations
Defendant is investigating her ability to re-finance in order to evaluate Plaintiff s
offer of settlement.
Respectfully submitted.
ally J. Winder. Esquire
Attorney for Defendant
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WEICLL & ASSO(9AT S, P.C. \I lau\l.t.+.U 1.,,
126 EAST KING SrRF.E77, SIIIPPCl1M0)J(;. PA 17257,1397 • rF.I.XHIONE,(717) 532-7.188 1 k\: (717) 532-6552' UE 0 2 2VUL
EDGAR L. SHOWAKER,
Plaintiff
V.
JOSEPHINE L. KEEBAIIGII,
Defendant
IN'I HE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-4862 CIVIL TERM
CIVIL ACTION - LAW
PRETRIAL MEMORANDUM OF
PLAINTIFF, EDGAR L. SHOWAKER
2.
Basic Facts as to Liability
On or about October 4. 1996, Plaintift'and Defendant,jointly purchased a 1996 Chevrolet Monte
Carlo 7_34 Coupe. The parties were not married and were not "partners" as defined by
Pennsylvania law. Both Plaintiff and Defendant were listed as owners on the title certificate.
The parties have continued to jointly own the vehicle through the present.
At the time of the purchase of the vehicle, the parties did not encumber it. Plaintiff has never
taken any steps to encumber title at any time relevant hereto.
The parties resided together until January 27. 1999. at which time they separated. Defendant has
had the exclusive possession and use of the vehicle since the date of separation.
Plaintiff' was informed that Defendant attempted to encumber it through American General
Finance.
With respect to Defendant's Counterclaim. all of the items of personal property listed by
Defendant were purchased by the Plaintiff with Plaintiffs tunds. It is, therefore. Plaintiffs
position that Defendant has no claim to those items or the value thereof.
Basic Facts as to Damaecs
Plaintiff seeks an Order requiring that the vehicle be sold and that he receive one-half (1/2) the
net proceeds and one-half (1/2) of the rental value of the vehicle from August 11, 1999 through
the date of trial.
The fair rc.iud value of the vehicle is $434.74 per month, for a total of $16,954.86 from August
11, 1999 to November 11. 2002. plus rental from that date until resolution. Plaintiff seeks one-
half (1 /2) ol'that amount, $8,477.43, for rental value. plus one-hall' (1 /2) the net proceeds of sale.
WEIGLE 6 ASSOCIATES. PC. - ATTORNEYS AT LAW - 126 EAST KING STREET - 5HIPPENSRURG. PA 17257.1397
With respect to Defendant's Counterclaim, Plaintiff denies that there is any liability,
or alternatively, ihhe is liable that the anuxuu oftlamages is considerably less than those claimed
by Defendant.
3. Principal Issues of Liability and Damases
A. ISSUE
WHETHER PLAINTIFI' HAS A RICiIIT TO SEEK PARTITION OF THE
VEIUCLE.
Suggested Answer - YES
Discussion - 68 P.S. I 1 I states as follows:
"§111. Partition of personal property jointly owned
Whenever personal property is owned jointly, by persons who are not partners, or are not husband
and wife, and any one of such persons desires to dispose of his or her right, title, and interest in
said personal property, and cannot arrive at a satisfactory arrangement with the other owner or
owners of such personal property for the disposition of such personal property, it shall be lawful
for such person to petition to the court of common pleas of the county wherein such property is
situated, citing the facts of such joint ownership, the value of the property, and the inability of the
joint owners thereof to agree to the amiable disposition thereof-, whereupon the said court shall
appoint a trustee for said personal property, which trustee, upon the filing of a bond in a sum in
double the amount of the value of the personal property as set forth in said petition, conditioned
upon the faithful performance of the duties or the said trustee as herein set forth, shall take
immediate possession of said property.
1927, April 27, P.t..460, § 1:'
This Statute clearly gives Plaintiff the right to bring this action and to obtain relief.
B. ISSUE
WHE'T'HER DEFENDANT IS LIABLE TO PLAINTIFF FOR FAIR RENTAL
VALUE?
Suggested Answer- YES
Discussion
The evidence will establish that the vehicle has been in Defendant's exclusive
possession and control since the parties separated. Defendant would therefore be unjustly.
enriched unless Plaintiff receives one-hall' of the fair rental value of the vehicle from
August 11. 1999, the date of the filing of this action. Under Pennsylvania law, a co-
tenant of real estate is entitled to his or her proportionate part of rental value in a partition
case where the other co-tenant remained in possession.68 P.S. §101. Personal property
should be treated in the same manner.
WEIGLE 5 ASSOCIATES. P.C. - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENS9URG. PA 192S7.1399
C. am
WHETHER PLAINTIFF'S INTEREST IN THE VEHICLE CAN BE
AFFECTED OR PREJUDICED BY DEFENDANT'S UNILATERAL ACTION IN
ENCUMBERING THE VEHICLE
Sugf;ested Answer-NO
Discussion
Any attempts by Defendant to encumber title to the vehicle should not affect
Plaintiffs interest. The evidence will demonstrate that Plaintiff never authorized any
encumbrance and in fact was initially unaware that Defendant had encumbered the
vehicle. In General Credit Co. v. Clack 415 Pa. Super 338, 609 A.2d 55.3 (1992), the
Pennsylvania Superior Court held that, a mortgagor tenant's encumbrance of his interest
in property did not encumber a non-mortgagor tenant's interest.
4. Legal Issues Regarding Admissibility of Testimony and Exhibits
Plaintiff does not anticipate any legal issues regarding admissibility of testimony or exhibits.
5. Witnesses
A. Plaintiff, Edgar L. Showaker
B. Tim Nye. FI&I-1 Chevrolet or another representative from H&H Chevrolet
6. Exhibits
A. Title certificate for vehicle
B. American General documentation demonstrating that Plaintiff did not encumber the
vehicle.
C. Invoice evidencing purchase ofriding lawnmower.
WEIGLE & ASSOCIATES. P.C. - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSSURG. PA 1]25]1397
Current Status of Settlement Negotiations
Plaintiff has offered to release his interest in the vehicle if (a) Defendant refinances an unrelated
loan held by Allfirst Bank such that Plaintiff's name is removed from the All6rst loan (Plaintiff
was a cosigner on that loan); and (b) Detendant withdraws her Counterclaim. As of this writing,
Plaintiff has not received a response to this offer.
Attorney for Plaintiff
126 East King Street
Shippensburg,PA 17257
(717) 532-7388
Respectfully submitted,
WEIGLE & ASSOCIATES, P.C.
By.
Richard L. Webber, Jr., Esquire
WEIGLE 6 ASSOCIATES. P.C. - ATTORNEYS AT LAW - 126 FAST KING STREET - SHIPPENSBURG. PA 17257.1397
`.
S
EDGAR L. SHOWAKER,
Plaintiff
V.
JOSEPHINE L. KEEBAUGH,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-4862 CIVIL TERM
CIVIL ACTION - LAW
PRETRIAL MEMORANDUM OF
PLAINTIFF. EDGAR L SHOWAKER
1.
2.
Basic Facts as to Liability
On or about October 4, 1996, Plaintiff and Defendant jointly purchased a 1996 Chevrolet Monte
Carlo Z34 Coupe. The parties were not married and were not "partners" as defined by
Pennsylvania law. Both Plaintiff and Defendant were listed as owners on the title certificate.
The parties have continued to jointly own the vehicle through the present.
At the time of the purchase of the vehicle, the parties did not encumber it. Plaintiff has never
taken any steps to encumber title at any time relevant hereto.
The parties resided together until January 27, 1999, at which time they separated. Defendant has
had the exclusive possession and use of the vehicle since the date of separation.
Plaintiff was informed that Defendant attempted to encumber it through American General
Finance.
With respect to Defendant's Counterclaim, all of the items of personal property listed by
Defendant were purchased by the Plaintiff with Plaintiffs funds. It is, therefore, Plaintiff's
position that Defendant has no claim to those items or the value thereof.
Basic Facts as to Damages
Plaintiff seeks an Order requiring that the vehicle be sold and that he receive one-half (1/2) the
net proceeds and one-half (1/2) of the rental value of the vehicle from August 11, 1999 through
the date of trial.
The fair rental value of the vehicle is $434.74 per month, for a total of $16,954.86 from August
11, 1999 to November 11, 2002, plus rental from that date until resolution. Plaintiff seeks one-
half (1/2) of that amount, $8,477.43, for rental value, plus one-half (1/2) the net proceeds of sale.
WEIGLE a ASSOCIATES, P.C. - ATTORNEYS AT LAW - 126 EAST KING STREET - SMIPPENSBURG. PA 17257-1397
With respect to Defendant's Counterclaim, Plaintiff denies that there is any liability,
or alternatively. if he is liable that the amount of damages is considerably less than those claimed
by Defendant.
3. Principal Issues of Liabilitv and Damages
A. ISSUE
WHETHER PLAINTIFF HAS A RIGHT TO SEEK PARTITION OF THE
VEHICLE.
Suauested Answer - YES
Discussion - 68 Y.S. 111 states as follows:
"§111. Partition of personal property jointly owned
Whenever personal property is owned jointly, by persons who are not partners, or are not husband
and wife, and any one of such persons desires to dispose of his or her right, title, and interest in
said personal property, and cannot arrive at a satisfactory arrangement with the other owner or
owners of such personal property for the disposition of such personal property, it shall be lawful
for such person to petition to the court of common pleas of the county wherein such property is
situated, citing the facts of such joint ownership, the value of the property, and the inability of the
joint owners thereof to agree to the amiable disposition thereof, whereupon the said court shall
appoint a trustee for said personal property, which trustee, upon the filing of a bond in a sum in
double the amount of the value of the personal property as set forth in said petition, conditioned
upon the faithful performance of the duties of the said trustee as herein set forth, shall take
immediate possession of said property.
1927, April 27, P.L. 460, § L"
This Statute clearly gives Plaintiff the right to bring this action and to obtain relief.
B. ISSUE
WHETHER DEFENDANT IS LIABLE TO PLAINTIFF FOR FAIR RENTAL
VALUE?
Suggested Answer - YES
Discussion
The evidence will establish that the vehicle has been in Defendant's exclusive
possession and control since the parties separated. Defendant would therefore be unjustly
enriched unless Plaintiff receives one-half of the fair rental value of the vehicle from
August 11, 1999, the date of the filing of this action.. Under Pennsylvania law, a co-
tenant of real estate is entitled to his or her proportionate part of rental value in a partition
case where the other co-tenant remained in possession.68 P.S. §101. Personal property
should be treated in the same manner.
WEIGLE 6 ASSOCIATES, P.C. - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG, PA 17257.1397
C. ISSUE
WHETHER PLAINTIFF'S INTEREST IN THE VEHICLE CAN BE
AFFECTED OR PREJUDICED BY DEFENDANT'S UNILATERAL ACTION IN
ENCUMBERING THE VEHICLE
Suggested Answer -NO
Discussion
Any attempts by Defendant to encumber title to the vehicle should not affect
Plaintiffs interest. The evidence will demonstrate that Plaintiff never authorized any
encumbrance and in fact was initially unaware that Defendant had encumbered the
vehicle. In General Credit Co. v. Clack 415 Pa. Super 3A 609 A.2d 55.3 (1992), the
Pennsylvania Superior Court held that, a mortgagor tenant's encumbrance of his interest
in property did not encumber a non-mortgagor tenant's interest.
4. Legal Issues Regarding Admissibility of Testimony and Exhibits
Plaintiff does not anticipate any legal issues regarding admissibility of testimony or exhibits.
5. Witnesses
A. Plaintiff, Edgar L. Showaker
B. Tim Nye, H&H Chevrolet or another representative from H&H Chevrolet
6. Exhibits
A. Title certificate for vehicle
B. American General documentation demonstrating that Plaintiff did not encumber the
vehicle.
C. Invoice evidencing purchase of riding lawnmower.
WEIGLE 6 ASSOCIATES, P.C. - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG, PA 17257-1387
Current Status of Settlement Negotiations
Plaintiff has offered to release his interest in the vehicle if (a) Defendant refinances an unrelated
loan held by Allfirst Bank such that Plaintiffs name is removed from the Allfirst loan (Plaintiff
was a cosigner on that loan); and (b) Defendant withdraws her Counterclaim. As of this writing,
Plaintiff has not received a response to this offer.
Respectfully submitted,
EIGLE &ASSOCIATE . PjQ^t
By: aQ (L)__
Richard L. Webber, Jr., Esquire
Attorney for Plaintiff
126 East King Street
Shippensburg, PA 17257
(717) 532-7388
WEIGLE IS ASSOCIATES. P.C. - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG. PA 17257-1397
RICHARD L. WEBBER, JR.
Au nwyatlaw
366 Green spring Road
P.O. Box 40
Newv&, PA 17141-0040
Sally J. Winder, Esquire
701 East King Street
Shippensburg, PA 17257
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RICHARD L. WEBBER, JR.
Momey at Law
366 Grow Spnng Road
P.O. Box 40
NewviUe. PA 17211.0040
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Richard L. Webber, Jr., Esquire
P.O. Box 40
Newville, PA 17241-0040
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EDGAR L. SHOWAKER, : IN THE COURT OF COMMON PLEAS OF
PLAINTIFF, : CUMBERLAND COUNTY, PENNSYLVANIA
V. NO. 99- `1 S4 L CIVIL TERM
JOSEPHINE L. KEEBAUGH,
DEFENDANT CIVIL ACTION - LAW
NOTICE
You have been sued in court. If you wish to defend against the claims set forth in the
following pages, you must take action within twenty (20) days after this 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 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
Telephone: (717) 249-3166
EDGAR L. SHOWAKER, : IN THE COURT OF COMMON PLEAS OF
PLAINTIFF, : CUMBERLAND COUNTY, PENNSYLVANIA
V. NO. 99- 416.1- CIVIL TERM
JOSEPHINE L. KEEBAUGH,
DEFENDANT CIVIL ACTION-LAW
COMPLAINT FOR PARTITION OF PERSONAL PROPERTY
NOW COMES THE PLAINTIFF, EDGAR L. SHOWAKER, by his attorney, Richard L.
Webber, Jr., and files this Complaint for Partition of Personal Property pursuant to 68 P.S. 111,
averring the following:
Plaintiff EDGAR L. SHOWAKER, is an adult individual residing at 170 Fish Hatchery
Road, Newville, PA 17241.
2. Defendant JOSEPHINE L. KEEBAUGH, is an adult individual residing at 301 Neatly Road,
Newville, PA 17241.
3. Plaintiff and Defendant are the joint record owners of the following personal property with
the following specified fair market value:
1996 Monte Carlo Z-34 automobile.
VIN# 2G I WX 12X I T9247360
4. Plaintiff and Defendant are not married.
5. The automobile is not owned by Plaintiff and Defendant as partners.
6. It is unencumbered.
7. Plaintiff has a one-half (1/2) interest in the automobile.
8. Plaintiff desires to depose of his right, title and interest in the automobile.
9. The parties have been unable to arrive at a satisfactory arrangement for the amicable
disposition of the automobile.
WHEREFORE, Plaintiff respectfully requests that:
(a) the Court appoint a Trustee pursuant to 68 P.S. 111;
(b) the Court order and decree that the above-described automobile be transferred
to the Trustee;
(c) the automobile be appraised and sold in accordance with the said statute cited
above;
(d) one-half of the net proceeds be paid to the Plaintiff, plus one-half of the rental
value of the property from the date of filing;
(e) the Court grant such other and further relief as may be deemed necessary and
proper.
Date: 0S 4 ?
Richard L. Webber, Jr.,
Attorney for Plaintiff
366 Green Spring Road
P.O. Box 40
Newville, PA 17241-0040
(717) 776-6566
2
I verify that the statements made in this Complaint are true and correct, I understand that
false statements herein are subject to the penalties of 18 Pa. C.S. Section 4904 relating to
unswom falsification to authorities.
Date: rt ?/
GAR L. SHO AKER, Plaintiff
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EDGAR L. SHOWAKER : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
V. : No. 994862 CIVIL TERM
JOSEPHINE L. KEEBAUGH
Defendant : CIVIL ACTION - LAW
NOTICE TO PLEAD
To: EDGAR L•.SHOWAKER-
You are hereby notified to file a written response to the enclosed Answer and
Counterclaim within TWENTY (20) DAYS after service hereof, or a judgment may
be entered against you.
By:
Sally J. Winder
Attorney for Defendant
701 E. King Street
Shippensburg,PA 17257
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EDGAR L. SHOWAKER
Plaintiff
V.
JOSEPHINE L. KEEBAUGH
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
No. 99- 4862 CIVIL TERM
CIVIL ACTION - LAW
ANSWER AND COUNTERCLAIM
Comes now the Defendant, Josephine L. Keebaugh, by and through her counsel,
Sally J. Winder, Esquire, and does Answer the Complaint as follows:
1. Admitted.
2. Admitted
3. Admitted.
4. Admitted.
5. Admitted.
6. Denied. On the contrary, the 1996 Monte Carlo car title is encumbered. The car
title is encumbered by a lien in favor of American General Finance in the total amount of
approximately Nine-Thousand ($9,000.00) Dollars.
7. Denied as stated. On the contrary, Defendant believes and therefore avers that
she has made all the payments for the car and that her car was traded at the time of
purchase of this car and that Plaintiff has no financial interest in this car and therefore is
not entitled to a one-half interest as stated in the Complaint.
8. Denied. The averments of paragraph 8 are conclusions which Defendant is not
required to answer. To the extent that they may not be deemed such the Defendant is
without knowledge of the truth of the averment and strict proof thereof is demanded at
trial of the case.
9. Denied as stated. On the contrary, the parties agreed previously that the car was
to be that of the Defendant.
WHEREFORE, Defendant prays this Honorable Court enter an order awarding the
car to Defendant with no ownership interest in Plaintiff.
COUNTERCLAIM
The Defendant, Josephine L. Keebaugh, does raise this Counterclaim against
Plaintiff for amounts owed by Plaintiff to Defendant as follows:
1. Plaintiff, Edgar L. Showaker, did remove from Defendant's premises a certain
White lawnmower belonging to Defendant. Said White tractor was the subject of a
financing contract in the name of Josephine Keebaugh as shown on Exhibit A attached
hereto and made a part hereof. Said tractor has a value of $3,296.00.
2. Further, Plaintiff removed a certain highchair from the Defendant's residence
without her permission which highchair belongs to Defendant. Defendant purchased said
highchair at public sale for the sum of $450.00 which is the fair market value of it.
3. Plaintiff removed a certain glass rolling pin from Defendant's residence which
was the property of Defendant. Defendant purchased said rolling pin for $25.00, the fair
market value of said rolling pin.
4. Defendant is entitled to return of her property, including the White tractor,
highchair, and glass rolling pin or payment of $3,771.00.
WHEREFORE, Defendant prays this Honorable Court enter judgment against
Plaintiff in the amount of $3,771.00 or enter an order requiring the return of the White
tractor, highchair and glass rolling pin to Defendant, together with costs of suit and other
relief deemed equitable by this Court.
Respectfully submitted,
ally I Wi er, Esquire
Attorney for Defendant
701 East King Street
Shippensburg, PA 17257
VERIFICATION
I verify that the statements made in the foregoing Petition are true and correct to the best
of my personal knowledge and belief. I understand that false statements herein are made subject
to the penalties of 18 Pa. C. S. Section 4904, relating to unworn falsification to authorities.
Date:
JOS INE C. KEMAUG]HU