Loading...
HomeMy WebLinkAbout99-07442 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY STATE OF PENNA. NINA IAFPIN Plaintiff N o. 1999 _ 7447 VERSUS JAMES F. _ SLER, ITT, Defendant DECREE IN DIVORCE AND NOW, nk -,-ntwr Gb , 2000 , IT IS ORDERED AND DECREED THAT NINA LOFTTN , PLAINTIFF, AND JAMES F. KESSLER, III ARE DIVORCED FROM THE BONDS OF MATRIMONY. ,DEFENDANT, THE COURT RETAINS JURISDICTION OF THE FOLLOWING CLAIMS WHICH HAVE BEEN RAISED OF RECORD IN THIS ACTION FOR WHICH A FINAL ORDER HAS NOT YET BEEN ENTERED; None. It is further ORDERED, ADJUDGED and DECREED that the terms, provisions and conditions of a certain aria Settlement Agreement between 1e parties dated December 21, 2000, are incorporated in this Decree in Divorce by reference as fully as if tl"me were set forth herein at BY YHE COU ATTEST: J. PROTHONOTARY . ??-:? MARITAL SETTLEMENT AGREEMENT This Agreement is entered into on eK 1 i?in.a.??• 2000, in Cumberland County by James F. Kessler, III ("Husband") and Nina Loftin ("Wife"). RECITALS 258-80-0055 Wife's Birth Date and Social Security #: 06/08/49 205-34-8965 H Place usband's Birth Date and Social Security #: July 4 4 988 Date Marriage: Saint Lucia, West Indies Date of Separation: rMay 13, 1999 Date o Minor Children: None. Pending Court Proceedings: Loftin v. Kessler Cumberland County 7442 Civil 1999; PACSES # 435101836 Loftin v. Kessler Cumberland County 1050 S 1999; PACSES 9847101792 The parties desire to settle fully and finally their respective financial and property rights and obligations as between each other, including but not limited to the ownership and equitable distribution of real and personal property; past, present and future support, alimony and/or maintenance; and any and all claims which either party has, or may have, against the other or the other's estate. In consideration of the mutual promises, covenants and undertakings hereinafter set forth and for other good and valuable consideration, receipt of which the parties acknowledge, Wife and Husband, each intending to be legally bound, hereby covenant and agree to the terms set forth in this agreement. ¶ 1 - SEPARATION Each party shall have the right to live separate and apart from the other party, free from the other partys interference, authority and control. Neither party shall harass the other or attempt to harass the other, nor compel the parties' cohabitation. 12 - WAIVER OF RIGHTS AND MUTUAL RELEASES Except as provided in this agreement, both parties absolutely and unconditionally release and forever discharge each other and their heirs, executors, administrators, assigns, property and estates from any and all rights, claims, demands or obligations arising out of or by virtue of the marital relationship, whether such claims exist now or arise in the future. This release shall be effective regardless of whether such claims arise out of former or future acts, contracts, engagements or liabilities of the parties or by way of dower, curtesy, widows rights, family exemption or similar allowance, or under the intestate laws, or the right to take against the spouse's will, or the right to treat a lifetime conveyance by the other as testamentary, or all other rights of a surviving spouse to participate in a deceased spouse's estate, whether arising under the laws of Pennsylvania, any state, commonwealth or territory of the United States, or other country. Except for any cause of action for divorce which either party may have or claim to have, and except for the obligations of the parties contained in this agreement, each party gives to the other an absolute and unconditional release and discharge from all causes of action, claims, rights or demands whatsoever, in law or in equity, which either party ever had or now has against the other, including but not limited to alimony, alimony pendente lite, equitable distribution of marital property, counsel fees or expenses. ¶ 3 - EFFECT OF DIVORCE DECREE ON AGREEMENT Either party may enforce this agreement as provided in Section 3105(a) of the Divorce Cade, as amended. As provided in Section 3105(c), provisions of this agreement regarding equitable distribution, alimony, alimony pendente life, counsel fees or expenses shall not be subject to modification by the court. Wife has filed a Complaint in Divorce under Sections 3301(c) and (d) of the Divorce Code, which raised claims for equitable distribution of marital property, alimony, alimony pendente lite, counsel fees and expenses. Husband and Wife shall utilize their best efforts to finalize the divorce no later than December 29, 2000. Simultaneously with the execution of this agreement both parties shall execute Affadavits of Consent and Waivers of Notice of Intention to Request Entry of Divorce Decree and forward them to Wife's counsel promptly who shall file them of record along with any other documents necessary to precipitate the prompt entry of a divorce decree. 4 - DATE OF EXECUTION The "date orexecution" or "execution date" of this agreement is the date upon which it is signed by the parties if they sign the agreement on the same date. Otherwise, the "date of execution" or "execution date' shall be the date on which the last party signed this agreement. 15 - HEADINGS NOT PART OF AGREEMENT The descriptive headings preceding the paragraphs are for convenience and shall not affect the meaning, construction or effect of this agreement. 16 - SEVERABILITY AND INDEPENDENT AND SEPARATE COVENANTS Each separate obligation shall be deemed to be a separate and independent covenant and agreement. Ifa court declares any term, condition, clause or provision of this agreement void or invalid in law or otherwise, then only that term, condition, clause or provision shall be stricken. In all other respects, this agreement shall be valid and continue in full force, effect and operation. ¶ 7 - ADDITIONAL INSTRUMENTS Within ten (10) days after a request to do so, each party shall execute, acknowledge and deliver to the other any and all instruments, assignments, releases, satisfactions, deeds, notes or other writings that are necessary to give full force and effect to this agreement. ¶ R - AGREEMENT BINDING ON HEIRS This agreement shall be binding on and shall ensure to the benefit of the parties and their respective heirs, executors, administrators, successors and assigns. 19 - INTEGRATION This agreement constitutes the entire understanding of the parties and supersedes any and all prior agreements and negotiations between them. There are no representations, warranties, covenants or promises other than those expressly set forth in this agreement. 110 - MODIFICATION OR WAIVER TO BE IN WRITING No modification or waiver of any term of this agreement shall be valid unless in writing and signed by both parties. ¶ I I - NO WAIVER OF DEFAULT Either party's failure to insist upon strict performance of any term of this agreement shall in no way affect the right of that party to enforce the term. 112 - APPLICABLE LAW This agreement shall be construed under the laws of the Commonwealth of Pennsylvania and the Divorce Code, as amended. 113 - ATTORNEYS' FEES FOR ENFORCEMENT The breaching party shall pay all legal fees and costs incurred by the other in enforcing this agreement, providing that the enforcing party is successful in establishing that a breach has occurred. 114 - VOLUNTARY EXECUTION Each party understands the terms and conditions of this agreement and acknowledges that the agreement is fair and equitable. The parties have reached this agreement freely and voluntarily, without any duress, undue influence, collusion or improper or illegal agreements. 15 - DISCLOSURE OF ASSETS Each party has had an opportunity to discuss with counsel the concept of marital property under Pennsylvania law and the right to seek discovery under the Divorce Code and the rules of civil procedure; and the right to have the real estate, personal property, estate and assets, earnings and income of the other assessed or evaluated by the court of this Commonwealth. Each party confirms that there has been disclosure to the other of such income, assets and liabilities. Each party waives any right to further disclosure, valuation, enumeration or statement of income, assets or liabilities. Neither party desires to make or append to this agreement any additional enumeration or statement. Neither party shall sue the other party or that party's heirs, executors, administrators or assigns, alleging denial of any right to full disclosure, or fraud, duress, undue influence or failure to have available full, proper and independent representation by legal counsel. 116 - WIFE'S AND HUSBAND'S DEBTS Except as otherwise set forth in this agreement, the parties represent and warrant to each other that they have not incurred ai.. will not contract or incur any debt or liability for which the other or the M: is l ?Iiar+? other's estate might be responsible. Each party shall indemnify and save harmless the other from any and all claims or demands made against the other by reason of debts or obligations incurred by that party. 117 - ADVICE OF COUNSEL The parties acknowledge that they have received independent legal advice from counsel of their selection. They have been informed fully as to their legal rights and obligations, including all rights available to them under the Divorce Code and other applicable laws. 118 - EQUITABLE DISTRIBUTION I. Real Estate a. Marital Residence: The parties own as tenants by the entireties improved real estate located at 1711 Charles Street, New Cumberland, Cumberland County, Pennsylvania ("marital residence"). The property is encumbered by a mortgage in favor of GMAC Mortgage, account 9 306533470. Wife shall be the sole and exclusive owner of the marital residence free and clear of any right, title, claim or interest of Husband. No later than March 30, 2001, Wife shall satisfy this mortgage in full, and shall provide Husband with written confirmation that it is satisfied. No later than December 29, 2000, Husband shall execute and deliver to Wife a deed transferring to Wife all his right, title and interest in and to the property. Wife shall be responsible for preparing and recording the deed. 2. Investments and Other Accounts The only account maintained prior to separation in joint names was the Mellon Bank Savings Account. Husband shall retain the $23,424 in that account. Additionally, each party shall retain, without claim or offset by the other, all bank accounts that each has maintained since separation. During the marriage, Wife acquired stock and stock options through her employment with AMP. Incorporated now Tyco. Husband waives all claims in and to any martial portion of Wife's stock and stock options, which Wife shall retain as her sole and separate property without any claim or offset by Husband. During the marriage, Husband acquired stock and stock options through his employment with IBM. Wife waives all claims in and to any martial portion of Husband's stack and stock options, which Husband shall retain as his sole and separate property without any claim or offset by Wife. Husband waives all claims in and to any and all assets, and their appreciation, which wife owned prior to their marriage. Wife shall retain her premarital Individual Retirement Account (IRA) and Husband waives all claims in and to the martial portion of this account, which Wife shall retain without claim or offset by Husband. 3. Life Insurance Policies Each party waives all claims, if any, in and to the cash and surrender values of any life insurance policies which the other acquired during the marriage. If the parties have not done so prior to executing this agreement, they may designate any beneficiary to receive the proceeds of these policies. 4. Pension and Retirement Benefits During the marriage, both parties acquired pension and retirement benefits with AMP, Incorporated. Soon after the parties' separation, Husband received a lump sum payment of $40,860, the present value (at that time) of his pension. Moreover, Husband acquired an IBM pension and 401 k plan before marriage, during marriage, and after separation. Wife waives all claims in and to the martial portion of these benefits, which Husband shall retain as his sole and separate property without claim or offset by Wife. Wife acquired through her employment with AMP a pension and TDSP (401k) account. Husband waives all claims in and to the martial portion of these benefits, which Wife shall retain as her sole and separate property without claim or offset by Husband After separation, Wife received severance funds from AMP. Husband waives all claims in and to any martial portion of these funds, which Wife shall retain as her sole and separate property without claim or offset by Husband. In addition to the waivers set forth above, each party waives fully and finally all claims to all additional pension and retirement benefits of the other, including all such benefits acquired during the marriage and the increased value of such benefits which either party acquired prior to the marriage date. 5. Tangible Personalty At the Date of Separation, Husband and Wife each had automobiles titled in their individual names. Husband will retain sole and exclusive ownership of the 1995 Montero, titled in Husband's name, and any vehicles or property acquired as a result of this property's value. Wife shall retain sole and exclusive ownership of the 1997 Mercedes, titled in Wife's name, subject to all encumbrances and lease agreements. Moreover, Husband shall retain sole and exclusive ownership of his 1991 Mooney Airplane and of his tractors and trailers. Husband shall return to Wife her diamond wedding ring, as identified in Exhibit A attached hereto and incorporated by reference herein, no later than March 30, 2001. No later than January 31, 2001, Wife shall have Husband's tools and workout equipment delivered to Husband's hanger at Capital City Airport, New Cumberland, PA. Concurrently, Wife shall be allowed to remove from this hanger Wife's coffee table and canopy boards. Husband will provide access to the Hanger for the purposes of this move. Wife will pay for this move. Except as provided above, all other property currently in the possession of Wife, shall become the sole property of Wife. All other property currently in the possession of Husband, shall become the sole property of Husband From and after the execution date of this agreement, each parry may dispose of his or her separate property. Neither party shall assert any claims to the property that the other party acquired after the date of separation. 6. Joint Debts and Liabilities The onlyjoint debt incurred during the marriage and unsatisfied as of the execution date of this agreement is the GMAC Mortgage on the marital residence. Wife shall be responsible solely for timely payment and satisfaction of the GMAC Mortgage on the marital residence, subject to the terms set forth in paragraph 18.1.a. Husband shall assume all liability for the golf membership at the Country Club of Harrisburg and avers that he has terminated this membership, including having Wife's name removed from their joint membership. Wife shall assume all liability for the golf membership at the West Short Country Club, and Wife shall have Husband's name removed from the membership. Each party warrants to the other that he/she does not have any credit cards in joint names. Any obligations incurred by either party in his or her individual name, whether incurred before or after separation, and including credit cards, are the sole responsibility of the party in whose name the debt or obligation was incurred. 119 - CASH PAYMENT Wife shall pay $37,170.00.00 to Husband as and for equitable distribution no later than March 30, 2001. ¶ 20 - SPOUSAL SUPPORT, APL AND ALIMONY Each party waives all claims to spousal support and alimony from the other. The parties acknowledge that during their separation, Wife received alimony pendent lite from Husband through the Cumberland County Domestic Relations Office. The parties agree that these funds shall be Wife's sole and separate property free and clear of any right, title, claim, or interest of Husband. Moreover, the parties agree that these funds shall be considered an equitable settlement payment to Wife meaning that Wife shall not claim these funds as income and Husband shall not be entitled to deduct these funds on his income tax return. Wife waives all claims in and to any part of the APL funds that have been escrowed on Husband's behalf by his attorney Ms. Theresa Male. Until issuance of the Decree in Divorce, Husband will maintain Wife on his medical insurance coverage. Immediately upon the Decree in Divorce, Husband shall process papers to provide COBRA health insurance for Wife for up to and including June 30, 2003 with such COBRA Health Insurance expenses to be paid for by Wife. 121 -COUNSEL FEES AND EXPENSES Neither party shall seek reimbursement or contribution from the other for payment of legal fees, expert's fees, or any other expenses incurred in connection with this agreement or any actions of divorce.. 922-TAX CONSEQUENCES OF PROPERTY TRANSFER The parties have negotiated this agreement with the understanding that the property transfers described in this agreement fall within the provisions of Section 1041 of the Internal Revenue Code, and as such will not result in the recognition of any gain or loss upon the transfer by the transferor. Tax Returns The parties shall file individual federal, state and local income tax returns for 2000. Wife shall be entitled to take fifty percent (50%) of the total marital residence deductions for 2000. Husband shall be entitled to take fifty percent (50916) of the total marital residence deductions for 2000. Thereafter Wife is entitled to the entire deductions for this residence. Tax Notices Within five (5) calendar days of either partys receipt of any deficiency notice or other correspondence from the Internal Revenue Service, the Pennsylvania Department of Revenue, or the local taxing authority, the receiving parry shall provide the other with a copy of such notice and/or correspondence. 9 23 - AFTER-ACQUIRED PROPERTY Each party shall own and enjoy, independently of any claims or rights of the other, all real property and all items of personal property, tangible or intangible hereafter acquired, with full power to dispose of the same as fully and effectively as though he or she were unmarried. Any property se acquired shall be owned solely by that party and the other parry shall have no claim to that property. IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties have set their hands and seals the day and year first written above. ? ?a z/ oa Da ?c'lly? N-'XJ c?' f 13 Nina Loftin NOTARIAL L DEBRA M. SHIMP, Nol-ry Public Harr)-burg, Dauphin County, PA M Commi--ion Ex Ire- A . 23, 2007 AVii,r r>r? 2) o2orv Date I' h i`i - ? _ -; +rj N Ci_ i - G• -; : Y `" ,n ' . :,?? ? i__ ?'- L CJ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NINA LOFTIN, Plaintiff ) V. ) NO. 1999-7442 JAMES F. KESSLER, 111, ) CIVIL ACTION - LAW Defendant ) IN DIVORCE PRAECIPE TO TRANSMIT RECORD TO THE PROTHONOTARY: Transmit the record, together with the following information, to the court for entry of a divorce decree: 1. Ground for divorce: Irretrievable breakdown under §3301(c) of the Divorce Code. 2. Date and manner of service of the complaint: Service by certified mail on December 15, 1999; Affidavit of Service filed December 20, 2000. 3. Date of execution of the affidavit of consent required by §3301(c) of the Divorce Code: by plaintiff, December 20, 2000; by defendant, December 21, 2000. 4. Related claims pending: All claims resolved by agreement of the parties. 5. Date plaintiffs Waiver of Notice in §3301(c) Divorce was filed with the prothonotary: contemporaneously herewith; date defendant's Waiver of Notice in §3301(c) Divorce was filed with the prothonotary: contemporaneously herewith. Date: 1v2 a6-00 ,?& C-4- I- ? ?, a& - John C Hewett, Jr., E quire TT, KISSINGER & C NLE , P.C. 130 Walnut Street P. O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 Counsel for Plaintiff Nina Loftin r± -- ?_ ..__ =1 .., ? J :V ?_ _ L.1 .. i,. ? .!,??U !. f1 _? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NINA LOFTIN, Plaintiff ) -7?1?la CC CIVIL 1999 NO. V. ) CIVIL ACTION - LAW JAMES F. KESSLER, III, ) IN DIVORCE Defendant NOTICE TO DEFEND AND CLAIM RIGHTS you wish to defend against the claims set forth in the case You have been sued in court. If Y ed that if if you fail to against so, the following pages, you must take prompt action. You are warn entered t you by an for any other claim or relief requested in entered?againainst t YOU for a annulment may may proceed without you analso decree rights im ortant to you, the court. A judgment may or other rig P these papers by the Plaintiff. You may lose money or property including custody or visitation of your children. ble When the ground for divorce is indignities or irr et ieva elorse skavailable tin the Office of you may request marriage counseling. A list of marriCourthouse Square, Carlisle, Pennsylvania the Prothonotary, Cumberland County Courthouse, 17013. IF YOU DO NOT FILE A CLAIM FOR ALIMONY, DIVISION OF PROPERTY, OR ANNULMENT IS GRANTED, LAWYERS FEES OR EXPENSES BEFORE A DIVORCE YOU MAY LOSE THE RIGHT TO CLAIM ANY OF THE YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO AFFORD NOT HAVE ALAEEROOR CANNOr W TO FIND OUT WHERE YOU CAN GET LEGOAL HELP. OFFICE SET FORTH Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 1241 6200 Telephone: (717) l AMERICANS WITH DISABILITIES ACT OF 1990 with The Court of Common Pleas of Cumberland County is required by law to Comply the Americans with Disabilities Act of to disabled For information about burin ibibeforfacilities any court, reasonable act our datio All arrangements must be made at least 72 hours prior e the court, hearing please or business ness before the court. You must attend the scheduled conference or hearing* IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NINA LOFTIN, ) Plaintiff ) V. ) NO. 9. 7/1 CIVIL 1999 JAMES F. KESSLER, III, ) CIVIL ACTION - LAW Defendant ) fN DIVORCE COMPLAINT IN DIVORCE AND NOW comes Plaintiff, Nina Loftin, by and through her counsel, Howett, Kissinger & Conley, P.C., who states the following in support of the within Complaint: 1. Plaintiff is Nina Loftin, an adult individual who currently resides at 717 I^ Market Street, #333, Lemoyne, Cumberland County, Pennsylvania, 17043. 2. Defendant is James F. Kessler, III, an adult individual who currently resides at 1711 Charles Street, New Cumberland, Cumberland County, Pennsylvania, 17070. 3. Both the Plaintiff and the Defendant have been bona fide residents in the Commonwealth of Pennsylvania for a period of at least six (6) months immediately preceding the filing of this Complaint. 4. Plaintiff and Defendant were married on July 4, 1988 in the British West Indies. 5. Neither Plaintiff nor Defendant is in the military or naval service of the United States of its allies within the provisions of the Soldiers- and Sailors, Civil Relief Act of the Congress of 1940 and its amendments. 6. There have been no prior actions for divorce or annulment of the marriage instituted by either of the parties in this or any otherjurisdiction. Plaintiff has been advised that counseling is available and that Plaintiff may have the right to request that the Court require the parties to participate in counseling. COUNT I - DIVORCE PURSUANT TO §3301(c) or (d) OF THE DIVORCE CODE 8. The prior paragraphs of this Complaint are incorporated herein by reference thereto. 9. The marriage of the parties is irretrievably broken. WHEREFORE, Plaintiff respectfully requests the Court to enter a Decree of Divorce pursuant to §3301 of the Divorce Code. COUNT II - EQUITABLE DISTRIBUTION 10. The prior paragraphs of this Complaint are incorporated herein by reference thereto. 11. Plaintiff and Defendant have legally and beneficially acquired property, both real and personal, during their marriage, which property is "marital property." WHEREFORE, Plaintiff requests the Court to equitably divide all marital property. COUNT III - ALIMONY AND ALIMONY PENDENTE LITE 12. The prior paragraphs of this Complaint are incorporated herein by reference thereto. 13. Plaintiff lacks sufficient property to provide for her reasonable means and is unable to support herself through appropriate employment and requires reasonable support to adequately maintain herself in accordance with the standard of living established during the mamage. 14. Plaintiff is unable to sustain herself during the course of this litigation. WHEREFORE, Plaintiff requests the Court to enter an award of reasonable temporary alimony until final hearing and permanently thereafter. COUNT IV - COUNSEL FEES, EXPENSES AND COSTS OF SUIT 15. The prior paragraphs of this Complaint are incorporated herein by reference thereto. 16. Plaintiff has retained an attorney to bring this action and has agreed to pay him a reasonable fee. 17. Plaintiff has incurred and will incur costs and expenses in prosecuting this action. 18. Plaintiff is not financially able to meet either the expenses and costs of prosecuting this action or the fees to which her attorney will be entitled in this case. WHEREFORE, Plaintiff requests the Court to enter an award of interim counsel fees, costs and expenses until final hearing and thereupon award such additional counsel fees, costs and expenses as deemed appropriate. Date: t? It Q Respectfully submitted, =4 ? I-LL - C. Howett, Jr., 84quirc HOWETT, KISSINGER & CONLEY, P.C. 130 Walnut Street P.O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 Counsel for Plaintiff Nina Loftin VERIFICATION I, Nina Loftin, hereby swear and affirm that the facts contained in the foregoing Complaint in Divorce are true and correct to the best of my knowledge, information and belief and are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. I ?LJ Date: t Ito f Nina Loftin ' -- - IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NINA LOFTIN, Plaintiff ) V. ) NO. 1999-7442 CIVIL JAMES F. KESSLER, III, ) CIVIL ACTION - LAW Defendant ) IN DIVORCE AFFIDAVIT OF SERVICE John C. Howett, Jr., being duly swom according to law, deposes and says that he is an attorney at law authorized to practice in the Commonwealth of Pennsylvania, and that on the 13'h day of December, 1999, he sent the original of the attached letter, with which was enclosed a certified, time-stamped copy of the Complaint in Divorce in the above-captioned matter, properly endorsed, to the Defendant, James F. Kessler, III, by certified mail, postage prepaid, return receipt requested, restricted delivery, pursuant to Pa.R.C.P. 1930.4, to 1711 Charles Street, New Cumberland, PA, 17070, the Defendant's last known address, and that the return receipt card which was signed by James F. Kessler, III, marked as having been delivered to him on December 15, 1999, is attached hereto and made a part hereof. (? h. 11 a_, - J 6n . Howett, Jr., Esqui HOWETT, KISSINGER & CONLEY, P.C. 130 Walnut Street P. 0. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 Counsel for Plaintiff Nina Loftin SWORN TO AND SUBSCRIBED before me this 16'h day of December, 1999. Notary u tc NOTAflIAL SEAL DEB M.,13HIMP,Notary Pubk Herrfe , Dauptiln County, PA M Comml tM Au0 23, 2001 LAw OFFICES OF HOWETT, KISSINGER & CONLEY, P.C. 130 WALNUT STREET POST OFFICE BOX 810 HA Ssvaa, PF mSYLVA.•M 17108 JOHN C. HOWETT DONALD T. KISSINGER CINDY S. CONLEY DEBRA M. SHIMP. Legal Assistant CERTIFIED ilfAIL RESTRICTED DELIVERY RETURN RECEIPT REQUESTED Mr. James F. Kessler, III 1711 Charles Street New Cumberland, PA 17070 December 13, 1999 Re: Loftin v. Kessler Dear Mr. Kessler: (717)234.2616 FAX (717) 234-5402 Please be advised that I have been retained by Nina to represent her interests in your marital difficulties. Enclosed for service upon you please find a Complaint in Divorce filed in Cumberland County. Be advised that a spousal support action has also been initiated. I am aware that you and Nina have had extensive negotiations directly between yourselves without counsel, but that you have been unable to resolve your difficulties. A proposal which both of you had apparently tentatively agreed upon at one point was recently rejected by you. Anything that you may have considered an offer of settlement is hereby withdrawn. In the next couple weeks, you will be receiving discovery requests from us and upon your completion of that information, I would anticipate that we would take your deposition. Of particular significance is the value of your pension/deferred compensation rights as well as any stock or stock options. Nina advises that you had a consultation with Attorney Theresa Male. Accordingly, I am sending a courtesy copy of this letter and the enclosed divorce complaint to her. Sincerely, 4A:'U \ C o C. Howett, Jr. JCH/dms Enclosure cc: Theresa B. Male, Esquire (w/encl) Nina Loftin (w/encl) In P 170 664 809 i v °a 4 C a C II Wn.ish, US Postal Service Receipt for Certified Mail No insurance Coverage Provided. Do not use for international me.. sae ro.o??o San] lof r stret & Nu r 7/ P ice state ZIP e 1 Postage $ Certled Fee Special Delivery Fell Restdded Deivery Fee Rehm Receipt Slowing to Wham 8 Date Deliverad Ream R4ecipt 9awi e to Whom, Dats.6 Addressee's Address TOTAL Postage d Fees ? Posenadt ar Date2 $ SENDER: - I also wish to receive the follow- s n o Compete Na-1 and/or z for adddlional cervices. Ing services (loran extra lee): • m @ Compete items 3.4a, are 4b. o Print your nama and address on the ,orso at this form so that we can return Mus 1 0 Addressee's Address m card lu you. o Anarh this form to the front of the mailpiece, or on the back if space does rat ` Z.y Restricted Delivery m ' rmi. tat'Rolum Racaipr Reoeealed' on the manpient below the article number. 0Wri O The Return RecoiPl will show to wham the article was dowered and the date ^ a o O 0 ° 3. Article Addressed to: l??slcr F z ? 4a. Article Number f E . E E o , . ot?mes A?+ / ?,' ar`W Pe 4b. Service Type Registered Certified 0 Express Mail ? Insured [I n N ' rit z ? Raium Receipt for Merchandise 0 COD • I a ? VW (? R / o{ pelive r 7. Date ( , o / oC 8. Received By: (Print Name) 8. Addressee's Address (Only it requested and aid) Rae is m p 9 B. Signatu ? (A or enpW T V a - as Fnrm 3 ecember 1 994 to259sefre-0223 Domestic Return Receipt IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NINA LOFTIN, Plaintiff ) V. ) NO. 1999-7441-CIVIL JAMES F. KESSLER, III, ) CIVIL ACTION - LAW Defendant ) IN DIVORCE PLAINTIFF'S AFFIDAVIT OF CONSENT A complaint in divorce under §3301(c) of the Divorce Code was filed on December 13, 1999. 2. The marriage of Plaintiff and Defendant is irretrievably broken, and ninety days have elapsed from the date of filing and service of the complaint. 3. I consent to the entry of a final decree in divorce after service of notice of intention to request entry of the decree. WAIVFR OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIVORCE DECREE UNDER §3301(c) OF THE DIVORCE CODE I consent to the entry of a final decree of divorce without notice. 2. 1 understand that I may lose rights concerning alimony, division of property, lawyer's fees or expenses if I do not claim them before a divorce is granted. 3. 1 understand that I will not be divorced until a divorce decree is entered by the Court and that a copy of the decree will be sent to me immediately after it is filed with the prothonotary. I verify that the statements made above are true and correct. I understand that false statements herein are made subject to the penalties of IS Pa.C.S. §4904 relating to unswom falsification to authorities. Date: l.`,, 20 , .910v v Nina 4Loftinam i f ??Lry ' i ?It I ti 01 ? i= , r cr C J ll` ?7 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NINA LOFTIN, ) Plaintiff ) V. ) NO. 1999 - 7442 CIVIL JAMES F. KESSLER, III, ) CIVIL ACTION - LAW Defendant ) IN DIVORCE DEFENDANT'S AFFIDAVIT OF CONSENT A complaint in divorce under §3301(c) of the Divorce Code was filed on December 13, 1999. 2. The marriage of Plaintiff and Defendant is irretrievably broken, and ninety days have elapsed from the date of filing and service of the complaint. I consent to the entry of a final decree in divorce after service of notice of intention to request entry of the decree. WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIVORCE DECREE UNDER §3301(c) OF THE DIVORCE CODE. 1. I consent to the entry of a final decree of divorce without notice. 2. I understand that I may lose rights concerning alimony, division of property, lawyer's fees or expenses if I do not claim them before a divorce is granted. 3. I understand that I will not be divorced until a divorce decree is entered by the Court and that a copy of the decree will be sent to me immediately after it is filed with the prothonotary. I verify that the statements made above are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unswom falsification to authorities. III, Defendant NOYury / C??' rC5 - I`i pZ ;;?°:'- °; { T : ':`,: - ;? ;! 'n : .. ? t": :iii ? ?.: ??ry ? ? ? U ., c.: NINA LOFTIN, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA V. DR 29,273 JAMES F. KESSLER, III, DEFENDANT 99-7442 CIVIL TERM ORDER OF COURT ` AND NOW, this day of June, 2000, IT IS ORDERED that befea,pefe Rdent artt shall file an answer to the within petition not later than Friday, June 16, 2000. A copy of the answer shall be forwarded to chambers. By the Court, e Edgar B. ? John C. Howett, Jr., Esquire For Plaintiff Theresa Barrett Male, Esquire K S' For Defendant Rickie Shadday, DRO :saa - r U IJ A C ?c •i. r7 .J -' C] U e Theresa Barrett Male Supreme Court #46439 115 Pine Street Harrisburg, PA 17101 (717) 233-3220 Counsel For Defendant COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOMESTIC RELATIONS SECTION NINA LOFTIN, Plaintiff DOCKET Number DR 29,273 PACSES Case Number 435101836 99-7442 Other State ID Number DEFENDANT'S MOTION TO TERMINATE, OR, ALTERNATIVELY, STAY ALIMONY PENDENTE LITE ORDER 1. On March 15, 2000, the Court entered a recommended alimony pendente lite v. JAMES F. KESSLER, III Defendant order, a true and correct copy of which is attached as Exhibit 1. 2. On April 4, 2000, Defendant ("Husband") filed a motion to stay the apl order pending Husband's de novo hearing. A true and correct copy of the motion is attached as Exhibit 2. 3. By order dated April 6, 2000, this Court, per the Honorable Edgar B. Bayley, denied the motion, without comment. 4. After the Court denied Husband's motion to stay the apl order, Wife received from her prior employer, AMP, Inc., two checks totalling $151,395.58. 5. Wife knew, when she filed for apl, that she would be receiving that sum of money after January 1, 2000. 6. Wife failed to disclose this fact when she filed for apl. 7. Wife knew, as of the February 7 and the March 15 apl conferences, that she would soon receive $151,395.58. 8. Wife failed to disclose this fact to Husband at either conference. 9. At the March 15 apl conference, Wife produced a copy of her 1999 W-2, which reported a non-qualified distribution of $147,703, and total Social Security wages of $240,240.42. 10. At the March 15 apl conference, Wife stated that she did not know anything about the $147,703 distribution reported on her 1999 W-2. 11. After the Court denied his motion to stay, Husband learned that this representation was not true. 12. In fact, Wife has known since at least June 3, 1999, and likely prior to that date, that she was to receive that amount, plus interest, in 2000 as part of her separation agreement with AMP, Inc. A true and correct copy of the separation agreement is attached as Exhibit 3. 13. At the apl conference on March 15, 2000, Wife represented that she was in dire financial circumstances. 14. After the Court denied his motion to stay, Husband learned that this representation was not true. 2 16. Wife's imminent receipt of $151,395.58 was a material and relevant fact which Wife had a duty to disclose to Husband and the Court prior to entry of the apl order. 17. Wife failed to disclose this fact to Husband and the Court prior to entry of the apl order. 18. Wife did not report to the Court or to Husband her receipt of $151,395.58 within seven days of this material change in her circumstances, in contravention of 23 Pa.C.S.A. § 4353 (a). 19. On March 27, 2000, Husband requested a de novo hearing. 20. Despite Husband's repeated requests since then that the Domestic Relations Section set a date for the de novo hearing, DRS has not done so. 21. Since entry of the apl order, Husband has paid Wife in excess of $20,000. 22. Husband will prevail on his de novo challenge to the extant apl order, in part based on the following: a. the conference officer assigned Wife a net monthly income of only $2,911.52. b. there is no credible basis on which to support this earnings assessment. C. Wife's income for the three years prior to the parties' separation in May 1999 was as follows: 1995 112,519 1996 155,817 F'7 rI t I( i S S i ?i t l a i 3 1997 138,101 1998 162,487 d. in 1999, the year in which she filed for apl, Wife had local wages were reported at $93,277.76, plus $10,218 in unemploy- ment compensation benefits. 23. Wife's failure to disclose the true state of her financial circumstances prior to entry of the March 15 apl order warrants immediate termination of the order. Wherefore, Defendant requests the Court immediately to terminate the apl order pending his hearing de novo, or, alternatively, to stay the order pending the hearing. Respectfully submitted, /f -e_A? Theresa Barrett Male, Esquire Supreme Court N 46439 115 Pine Street Harrisburg, Pennsylvania 17101 (717) 233-3220 Counsel for Defendant Date: June 5, 2000 4 ?l 4i ?• ? Y ? l 4Y? _I 1Y Y _ i (J 5 ? 5 i. t 1 ? p ? s ti 5 ? 5 ? r? ?w ? " 11 y }l S YrY A l ?if k1 7 ? fY 'r rt l 1 1 ''/ ` Y r `f ? i ?l f ' (L 1A . '..? ?? h l;l S y Y. ? 5 v ' y Psi •a 5 h C Y , , - rx ? I 7. ?.,U z : o a w L + 1. t ?. r W , J Y ? > I r. ? Z (Q yW ?:`Y N i5 Q h E ' 1 ? i P OOOGGG _ ? ? , J ? I I f E 'i 'i. _. 0 0 j I MAR 21 2000 NINA 1.0I'1'IN, I'lainIiff/Petitioner vs. JAMES 1'. KESSLER, III Defendant/Respondent DR 29,273 PA CS ES I D 435101836 IN TI It. COURT OP COMMON PLEAS CI1MIIr.RI.AND COUNTY, PENNSYLVANIA DOMES'T'IC RELA'T'IONS SECTION CIVIL AC'T'ION - LAW NO. 99-744'2 CIVI1, TERM ORDER OF COURT AND NOW, this I P day of March, 2000, based upon the Court's determination that Petitioner's monthly net i, come/earning capacity is $2,911.52 per month and Respondent's monthly net income/earning capacity is $13,223.07 per month, it is hereby Ordered that the Respondent pay to the Pennsylvania State Collection and Disbursement Unit, $4,105 00 a month payable monthly for alimony pendente lite. First payment due on or before March 31, 2000 in the amount of $16,432.00. Arrears set at $16,432.00. The effective date of the order is December 13. 1999. Due to husband receiving his annual bonus and said bonus being calculated in an annual salary, husband is to make full payment ofretroactive arrears on or before March 31, 2000 to his attorney and payment is to be made to wife's attorney. Wife's attorney will then report to the Domestic Relations Section the amount that was paid and credit will be given to APL account. Thereafter, commencing on April 15, 2000, husband is to make semi-monthly payments in the amount of $2,054.00 on or before the 15I' day and last day of each month Failure to make each payment on time and in full will cause all arrears to become subject to immediate collection by all of the means as provided by 23 Pa.C.S.§ 3703. Further, if the Court finds, after hearing, that the Respondent has willfully failed to comply with this Order, it may declare the Respondent in civil contempt of Court and its discretion make an appropriate Order, including, but not limited to, commitment of the Respondent to prison for a period not to exceed six months. Said money to be turned over by the PA SCDU to: Nina Loftin. Payments must be made by check or money order. All checks and money orders must be made payable to PA SCDU and mailed to PA SCDU P.O Box 691 10 I larrisburo, PA 17 106-1) 110 Payments must include the (let i•ndant'S PACSP.S Member Number ur Social Seem ily Number in order I(I be prureSSCd Do ttul Send Cash by mail { Unreimbursed medical expenses that exceed $250.00 annually are to be paid 0% by the respondent and 100% by petitioner. The plaintiff is responsible to pay the first $250.00 annually in unreimbursed medical expenses. Respondent to provide medical insurance coverage. Within thirty (30) days after the entry of this order, the Respondent shall submit written proof that medical insurance coverage has been obtained or that application for coverage has been made. Proof of coverage shall consist, at a minimum, of 1) the name of the health care coverage provider(s); 2) any applicable identification numbers; 3) any cards evidencing coverage; 4) the address to which claims should be made; 5) a description of any restrictions on usage, such as prior approval for hospital admissions, and the manner of obtaining approval; 6) a copy of the benefit booklet or coverage contract; 7) a description of all deductibles and co-payments; and 8) five copies of any claim forms. This Order shall become final ten days after the mailing of the notice of the entry of the Order to the parties unless either party files a written demand with the Prothonotary for a hearing de novo before the Court. DRO. R. J. Shadday Mailed copies on Petitioner 7 '(.' to: < Respondent John Howell, Jr., Esquire Theresa Barred-Male, Esquire RV THP tilt ruT i C rn u 04 Theresa Barrett Male Supreme Court #46439 1IS Pine Street Harrisburg, PA 17101 (717) 233-3220 Counsel For Defendant COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOMESTIC RELATIONS SECTION NINA LOFTIN, Plaintiff V. DOCKET Number DR 29,273 PACSES Case Number 435101836 99-7442 JAMES F. KESSLER, III Defendant Other State ID Number ORDER AND NOW, April 2000, upon consideration of Defendant's Motion to Stay Alimony Pendente Lite, the Court orders that a rule is issued on Plaintiff to show cause why the Defendant is not entitled to the relief requested. Plaintiff shall file an answer within ten (10) days of this date. Pending resolution of Defendant's Demand for Hearing, and further order of the Court, the March 15, 2000 order is STAYED. Alternatively, the Court directs counsel for Defendant to hold the $16,432 arrears payment in counsel's IOLTA account, pending resolution of Defendant's Demand for Hearing and further order of the Court. BY THE COURT: Edgar B. Bayley, I. . r I; Theresa Barrett Male Supreme Court #46439 115 Pine Street Harrisburg, PA 17101 (717) 233-3220 Counsel For Defendant COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOMESTIC RELATIONS SECTION NINA LOFTIN, Plaintiff V. JAMES F. KESSLER, III Defendant 1999. DOCKET Number DR 29,2p'', PACSES Case Number 435101g36 w- 99-7442 Other State ID Number i r: DEFENDANT'S MOTION TO STAY ALIMONY PENDENTE LITE ORDER I. Plaintiff Nina Loftin ("Wife") instituted this divorce action on December 13, 2. Wife's divorce complaint raises claims, inter alia, for alimony pendente lite. 3. The parties separated in May 1999. 4. The instant case is unique in that Wife's six-figure earnings history is commensurate with Husband's income levels. 5. During the latter part of the marriage, Wife was employed by AMP, Inc. 6. In 1998, Wife earned in excess of $162,000. 7. Wife's 1999 W-2 reports medicare wages of $240,240.42, which includes a non- qualified pension distribution of $147,300. Wife's local wages were reported at $93,277.76. 8. Wife also received $10,218 in unemployment compensation benefits in 1999. 9. For the period ending July 7, 1999, Wife had gross eamings of $93,865.58, which included severance pay of $25,117.00. 10. Following conferences on February 7 and March 15, 2000, the conference officer set Husband's apl obligation at $4,108 per month. A true and correct copy of the recommended order dated March 15, 2000 is attached as Exhibit 1. 11. Currently pending before the court is Husband's Demand for Hearing, 12. The March 15 apl order also directed Husband to pay one hundred percent (100%) of the arrears -- $16,432 -- by March 31. 13. Husband's demand for a hearing before the court does not stay the apl order unless this Court so directs. Pa. R.C.P. 1910. 11 (g). Stay of Arrears Payment 14. Husband incorporates by reference the averments set forth in the preceding paragraphs. 15. The March 15 apl order directing Husband to pay 100% of the estimated arrears by March 31 was not mailed until March 20, 2000. 16. Husband has deposited the $16,432 with his counsel. 17. Husband will prevail on his challenge to the underlying apl calculation. 18. Assuming, arguendo, that the Court finds Husband has an apl obligation to Wife, the arrears balance, if any, due after the de novo hearing will be substantially less than $16,432. 2 AYCfr?gm 19. Pennsylvania law provides in relevant part: If support arrearages exist at the time of the entry of the order, the order shall specify all of the following: (1) To whom an arrearage is owed and the amount of the arrearage. (2) The period of time for which the arrearage is calculated. (3) The amount of periodic support to be applied to current support and the amount to be applied to arrearages. (5) A direction that all payments are to be credited to current support obligations first, with any pay- ment in excess to be applied to arrearages. 23 Pa.C.S.A. § 4328 (d). 20. Nothing in the statute supports the directive that Husband pay 100% of the estimated arrears within two weeks of the entry of the order. Wherefore, Defendant requests the court to stay payment of the arrears pending the resolution of his de novo hearing. Stay of Monthly APL Payment 21. Husband incorporates by reference the averments set forth in the preceding paragraphs. 22. The conference officer assigned Wife a net monthly income of only $2,911.52. 23. There is no credible basis on which to support this earnings assessment. 3 n..r.... 24. In fact, as submitted by Husband at the conferences, Wife's income from 1995 through 1998 was as follows: 1995 112,519 1996 155,817 1997 138,101 1998 162,487 25. Based on Wife's historical earnings during the marriage, Husband will prevail on his challenge to the earnings capacity assigned to Wife by the conference officer. 26. Based on Wife's actual earnings in 1999, and her monthly expenses as verified in her income and expense statement, Husband has no liability under the law for apl. Wherefore, Husband requests the Court to stay the apl order pending the resolution of his demand for hearing. Respectfully submitted, .Theresa Barrett Male, Esquire Supreme Court N 46439 115 Pine Street Harrisburg, Pennsylvania 17101 (717) 233-3220 Counsel for Defendant Date: April 4, 2000 4 Exhibit 1 MAR 2 1 2090 DR 29,273 PACSES 11) 435101 836 NINA 1.01-1'IN, IN'rm: COURT 01' COMMON PLEAS Plaintiff/Petitioner CUMBULAND COUNTY, PENNSYLVANIA V.S. DOMESTIC RELATIONS SECTION CIVIL AC'T'ION - LAW JAMES r. KESSLER, III Dcfendanl/Respondcnl NO.99-74.12CIVILTERM ORDER OF COIJRT AND NOW, this 15"' day of March, 2000, based upon the Court's determination that Petitioner's monthly net i,icome/earning capacity is $2,911.52 per month and Respondent's monthly net income/earning capacity is $13,223.07 per month, it is hereby Ordered that the Respondent pay to the Pennsylvania State Collection and Disbursement Unit, $4,108 00 a month payable monthly for alimony pendente lite. First payment due on or before March 31, 2000 in the amount of $16,432.00. Arrears set at $16,432.00. The effective date of the order is December 13, 1999. Due to husband receiving his annual bonus and said bonus being calculated in an annual salary, husband is to make full payment of retroactive arrears on or before March 31, 2000 to his attorney and payment is to be made to wife's attorney. Wife's attorney will then report tothe Domestic Relations Section the amount that was paid and credit will be given to APL account Thereafter, commencing on April 15, 2000, husband is to make semi-monthly payments in the amount of $2,054.00 on or before the 15" day and last day of each month. Failure to make each payment on time and in full will cause all arrears to become subject to immediate collection by all of the means as provided by 23 Pa C. S.§ 3703. Further, if the Court finds, after hearing, that the Respondent has willfully failed to comply with this Order, it may declare the Respondent in civil contempt of Court and its discretion make an appropriate Order, including, but not limited to, commitment of the Respondent to prison for a period not to exceed six months. Said nnonev to be turned over by the PA SCDU to Nina Loftin. Payments must be made by check or nnoney order All checks and money orders must be made payable to PA SCDI! and mailed to PA SCDU 11.0 13ox 691 l0 l lan'ishurg, PA 17100-9110 I'avuirnls nmst inCImIC the deii•ndaI it's PACSHS MCmhri \'um11C1 of Serial SCl'lllu\ \nnthrr m ruler t„ he puocessed DO nut scud cash by mail Unreimbursed medical expenses that exceed $250.00 annually are to be paid 0% by the respondent and 100% by petitioner. The plaintiffis responsible to pay the first $250.00 annually in unreimbursed medical expenses. Respondent to provide medical insurance coverage. Within thirty (30) days after the entry of this order, (tte Respondent shall submit written proof that medical insurance coverage has been obtained or that application for coverage has been made. Proof of coverage shall consist, at a minimum, of 1) the name of the health care coverage provider(s); 2) any applicable identification numbers; 3) any cards evidencing coverage; 4) the address to which claims should be made; 5) a description of any restrictions on usage, such as prior approval for hospital admissions, and the manner of obtaining approval; 6) a copy of the benefit booklet or coverage contract; 7) a description of all deductibles and co-payments; and 8) five copies of any claim forms. This Order shall become final ten days after the mailing of the notice of the entry of the Order to the parties unless either party files a written demand with the Prothonotary for a hearing de novo before the Court. DRO: R. J. Shadday Mailed copies on Petitioner ,3 - $. to: < Respondent John tiowett, Jr., rsyuirc Theresa Barrett-Mole, Esquire BY THE C'0I` TP T PROOF OF SERVICE I hereby certify that I am this day serving a copy of the foregoing document upon the persons and in the manner indicated below which service satisfies the requirements of Pa. R.C.P. 440: Service via first-class mail addressed as follows: John C. Howett, Jr., Esquire Howett, Kissinger & Conley, P.C. P.O. Box 810 Harrisburg, PA 17108 Attorneys for Plaintiff 0 16-474? /;?e Theresa Barrett Male, Esquire Supreme Court N 46439 115 Pine Street Harrisburg, Pennsylvania (717) 233-32: Counsel for Defendant Date: April 4, 2000 C M (® 77-11 ni ,. .... w. .., n ? .? ?..„•ui ?? .. ..ui n., ? ?. ?.. ?,•Cr.OL i JI.1. I.1 ANN h,c0,;6aWjJ HarrL%hurp,PA MOS. 3,.-1 , A%M1= Executive Offices Ms. Nina L. Loftin 1711 Charles Street New Cumberland, PA 17070 Re: Separation Agreemont and Roioase This letter serves as your notice that AMP Incorporated YAP conduct reductions in staff at its Greater Harrisburg area facilities on April 29, 1999. Your position as Director, Technology MorkB ing will terminate on April 29, 1999, but you will be paid in lieu of notice and will continue on the payroll of the Company as an employee until June 27, 1999. This action is expected to be permanent. For further information or assistance please contact Robert Shepherd at (717) 592-7789. This letter will also evidence the understandings reached In connection with your separation from service with AMP Incorporated ("Company'and upon execution by you, will serve as the Separation Agreement and Release. Your execution of this Separetlon Agreement and Release (the 'Agreomenn will have legal consequences. Therefore, 1 urge that you review the terms of this Agreement with your attorney prior to maldng your decision to accept or reject the terms and conditions. 1. In consideration of your agreement to separate from the Company's service, your execution of this Agreement, and your agreement to be legally bound by the terms of this Agreement, the Company will extend to you the foilowing severance benefits: A. Severance Pay. You will receive in the month following your employment termination and your return of this signed Agreement a lump sum cash severance payment equal to $11,117. You will also be paid In cash for twelve days of accrued, unused vacation time. You will be paid a second severance payment of $147,703 during the first two weeks of January, 2000. This delayed payment will be credited with 5 percent annual simple Interest from July 1 to December 31, 1999. This interest is calculated at $3,692.58, and will be paid at the some time as the severance payment. The combined amount of these severance payments Is equivalent to one yew's base salary increased by 25% (the annual target cash bonus percentage applicable to you for 1998 under the Company's Management Incentive Plan). Applicable deductions will be taken from all payments for Income tax, social security tax, and other charges required to be deducted by the Company pursuant to applicable law or the terns of the Company's plans. These payments will be Indushm of any payments you may have become eligible to receive under the Management Incentive Plan for the 1999. Subject to the obligations and covanants not to compete contained in non-competition agreements you have signed and now re-confirm under Section 2 of this Separation Agreement and Release, you will be free to accept employment elsewhere at any time. t f. [t ION -:. _N100 J&MIP B. Other Componsatlonfflenefitn. i. Your participation in the company's group health plans under whatever level contract you are currently enroll for will be coati service on eighteen (18) month period following your separation from the same terms and conditions as those plans are made ivvailabllcontinue active employees. You will then be offered the oppo ity health care coverage under the Company's group health plans for an law, additional eighteen (18) month period, as required fully at your expense if elected, ii. Your right to exercise any outstanding stock options under the Long Tenn Equity Incentive Plan (LTEIP) will fo be xendfull e ten beyond your lis t day of active service to the Company year period originally assigned to each option at the time of grant, each option not otherwise vetod became vested on April 2, 1999 on account of the change of control of the Company, and the options will otherwise remain subject while outstanding to all applicable provisions of the LTEIP. W. Your vested interests In the AMP Incorporated Pension Plan and Employee Savings and Thrift Plan will be paid to you at your retirement age, or earlier if applicable, in accordance with the terms of those plans. 14,00 C. Pay in Lieu Outplacement the time of your terminationaIn IIlleu of0the additional severance pay outplacement services from Drake Beam Morin that you would have been eligible for. obligations 2. Won-Competition Agreement. You are reminded of and confirm your with in non-compeltition not covenants and grreeemier? th at you en elred Into with the Company durigr yo employmewith the Company. 3. Confidentiality Agreement You are reminded of and confirm your continuing post termination obligations under the terms of the Confidentiality Agreement that you signed at the time of your hire m ft the Company. ypost- 4 Intellectual Property Agreement You are reminded of and confirm termination iged t the time of your terms hire with the Company. ations under the Property Agreement E_i AMFO 5. Cooperation in Transition and Litigation. You agree to make yourself available to the Company during a throe month transition period covering April. May and June, 1999, to assist in the transition of projects and your work assignment to other individuals and functions. You also agree to provide the Company with reasonable cooperation and assistance, Including the taking of depositions and the giving of testimony at trial if deemed necessary, for all lawsuits for which your testimony may be warranted. The Company shall reimburse you for any reasonable and necessary expense Incurred as a result of your cooperation and assistance. 8. Non-Disparagement and NonSollcltation. You agree you will do nothing to disparage the Company or any of the Releasees. You also agree not to solicit or help any one else to solicit any employees or customers of the Company to cease employment with the Company or with any of the Releasees. Should you breach this non-disparagement or non-solicitation provision, the Company or any Releases may pursue all available remedies or damages, at law or Inequity. 7. Release A. In exchange for good and valuable consideration described above, the benefits to which you are entitled under Company policies, you, Nina L Loffin, on behalf of yourself and any heirs, representatives, executors, administrators, successors and assigns agree to release and forever discharge the Company, each and every officer, director, admintstrator and employee of the Company, and their successors and assigns, and any person, firm, corporation, association or partnership affiliated with the Company, whether currently known or unknown to you (collectively 'Releasees'), from ail actions, suits, debts, covenants, contracts, agreements, judgments, claims and demands whatsoever, In law or equity (collectively'clalmsl, whether known or unknown to you, arising out of or in any way connected with your employment with the Company or the termination of that employment. By this release, you understand that you are giving up all claims against the Company, or against any person acting on the Company's behalf, or against any affiliated Company, related to your employment and termination of employment by the Company. Further, you agree that your release indudea but is not limited to claims for breach of contract, impairment of economic opportunity, wrongful discharge, intentional infliction of emotional harm, promissory estoppel, defamation, fraud, misrepresentation, or any other tort (legal wrong), and also claims arising under Tide VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e at aaq. (relating to sex, race and certain other kinds of job discrimination); the Age Discrimination in Employment Act, 29 U.S.C. §§629 et seq. (relating to age discrimination In employment); the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. Ann. §§951 at seq. (relating to all the above forms of job discrimination), and any other federal, state or municipal statute, ordinance, exum&m order or regulation relating to discrimination in employment or in any way pertaining to employment relationshipa, which against the above- AMP described Releasees you now have or ever had (but not which may arise subsequent to the date you execute this Agreement). B. You represent and warrant that you have disclosed all actual or suspected violations of foreign, federal, state or local laws or regulations of which you are aware and you release the Reiaaases from any and all claims related thereto, both directly and derivatively. e. reAge quired by federal law to be included in a severance benefits rangefinent of this type. A. You have forty-five (45) days in which to review this Agreement, sign and date it, and return an executed copy to me. You should consult an attorney prior to signing. B. Following your signing of this Agreement, you have an addtilonal seven (7) days in which to revoke this Agreement. To be effective, your revocation must be in writing, signed, dated and provided to the Company (Attn: Harris Booker) no later than seven (7) days from the date on which you signed and dated your acceptance of this offer. 0. Enclosed is a table of demographic Information showing by age the composition of the entire top management group of which you are a member and the composition of the portion of that group terminating employment in connection with the present down-aiang of the top management group. 9. Governing Law. This Agreement shall be governed by and construed under the lam of the Commonwealth's conflicts Commonwealth laws provisions, and applicable without federal lawn to the 10. Sevembilfty. Should any part, term or provision of this Agreement be determined by any court to be illegal or Invalid, this shall not affect the validity of the remaining parts, terms and provisions of this agreement. This agreement shell not be construed as an admission by the Company of any liability to you or of the violation by the Company of any statute or legal or equitable obligation. 11. Entire Agreement This Agreement sets forth the entire agreement between the parties, and fully supersedes any and all prior agreements or understandings between the parties pertaining to the subject matter of this Agreement. rnn ..• .••un .. .. •, ,.. •. ••^•n .. .. .., ,., r, rl.••u l._ I'.1111. 1•. To indicate your acceptance of this Agreement, sign both originals In the location indicated following the Release below and return one to Harris Booker at P.O. Box 3808, M.S. 17649, Harrisburg, PA 17105-3808. AMP Incorporated BY r?12 Harris T. Booker, Jr. Yoe President Global Human Resources 11=119 =:T34 I hereby certify that I have read the terns of this Agreement, that I have had the opportunity to discuss this Agreement with my attorney, that the Company advised me I have up to forty-five (45) days to review thla Agreement and the meaning and consequences of it with my attorney, and that I understand Its terns and effects. 1 adamWedge that I am executing this Agreement voluntarily, with a full understanding of its terms and effects, In exchange for consideration, which I acknowledge is adequate and satisfactory to me. I understand I have seven m days from the execution of this Agreement to advise the Company that I am revoking it, and I understand that at the end of the seven-day period, if I do not revoke the Agreement, k vdll be In full force and effect. I intend for this Separation Agreement and Release to comply with Section 201 of the Older Workers Benefit Protection Act of 1980. Intending to be legally bound by the terms and conditions of thla Agreement: ACCEPTED AND AGREED., Z., - Date: u' 199 Nina L Loftin PROOF OF SERVICE I hereby certify that I am this day serving a copy of the foregoing document upon the persons and in the manner indicated below which service satisfies the requirements of Pa. R.C.P. 440: Service via first-class mail addressed as follows: Michael R. Rundle, Esquire 28 S. Pitt Street Carlisle, PA 17103 DRS Solicitor John C. Howett, Jr., Esquire Howett, Kissinger & Conley, P.C. P.O. Box 810 Harrisburg, PA 17108 Attorneys for Plaintiff a Theresa Barrett Male, Esquire Supreme Court M 46439 115 Pine Street Harrisburg, Pennsylvania 17101 (717) 233-3220 Counsel for Defendant Date: June 6, 2000 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOMESTIC RELATIONS SECTION NINA LOFTIN, Plaintiff ) DOCKET No. DR 29,273 PACSES Case No. 435101836 V. ) 99-7442 JAMES F. KESSLER, III, ) CIVIL ACTION - LAW Defendant ) PLAINTIFF'S ANSWER TO DEFENDANT'S MOTION TO TERMINATE, OR ALTERNATIVELY STAY ALIMONY PENDENTE LITE ORDER 1-3. Admitted. 4. Admitted. However, by way of further clarification, said sums constitute payments received by Wife for the post-separation negotiation and execution of a Separation Agreement which, inter alia, included a Non-Competition Agreement, a Confidentiality Agreement, an Intellectual Property Agreement, and a Non-Disparagement and Non-Solicitation Agreement. Said payments did not constitute income and instead, it is Wife's position, constitute a non-marital asset (as it was accrued after separation) of Wife. At most, the Court can consider a reasonable rate of interest return in calculating Wife's income for support purposes, which would make a de minim is difference in the alimony pendente lite award and can clearly be adjusted, if necessary, at the de novo hearing scheduled for August 16, 2000. Denied. It is denied that Wife knew, when she filed for alimony pendente lite, that she would be receiving that sum of money after January 1, 2000. To the contrary, while Wife does not deny executing the Separation Agreement and Release Document attached as Exhibit 3 to Husband's motion and dated June 3, 1999, she never received a copy of said document as her copy was sent to the marital residence where Husband apparently confiscated it. At and after the time this document was executed, Wife not only was undergoing the stress of losing her job, but her only brother had recently died, her husband had driven her out of the marital home, she was going through marriage counseling (while her husband was on a Caribbean sailing vacation with another woman) and, her physical health was deteriorating resulting in her January 2000 surgery. Moreover, although Wife believed that she might receive some type of funds, it was her recollection that they were due to her in the first two weeks of January 2000. When said funds were not paid to her in January 2000, she believed that she would not receive them. 6. Denied. To the contrary, as Wife was not aware at the time that she filed for alimony pendente lite that she would be receiving an asset payment after January 1, 2000, for the reasons stated in paragraph 5 above, she did not fail to disclose this fact when she filed for alimony pendente lite as she was not aware of this fact when she filed for alimony pendente lire. 7. Denied. To the contrary, and for the reasons provided for in paragraph 5 above, Wife was not aware as of the February 7, 2000 and the March 15, 2000 alimony pendente lite conferences that she would receive the asset payments in April 2000. 8. Denied. As Wife was unaware that she would soon receive the asset payments, she was unable to disclose this fact to Husband at either conference as, as of that date, whether or not Wife would receive said funds was not ofa factual nature. Moreover, Wife's 1999 W-2 clearly disclosed $147,703 of the $151,395.58 (the difference being interest) and Wife's 1999 W- 2 was disclosed at the March 15 conference. 9. Admitted. 10. Admitted. By way of clarification, Wife did not know anything about the $147,703 distribution reported on her 1999 W-2 at the March 15, 2000 alimony pendente lite conference as Wife had not yet received said funds. However, when this W-2 entry was raised at the conference, Wife surmised that the $147,703 was a non-qualified retirement plan distribution from her previous employer as is noted on the hearing officer's conference summary of March 15, 2000 attached hereto marked Exhibit "A" and incorporated by reference herein as if set forth at length. 11. Neither admitted nor denied. After reasonable investigation, Wife is without the knowledge necessary to form a belief as to the truth of the matter asserted. 12. Admitted in part, denied in part. To the contrary, and for the reasons provided in paragraph 5 above, Wife did not know as of June 3, 1999, or prior to that date, that she was to receive that amount, plus interest, in 2000 as part of her Separation Agreement with AMP, Inc. It is admitted that a true and correct copy of the Separation Agreement is attached as Exhibit 3 to Husband's motion; however, said copy was provided by Wife's counsel as soon as it was finally received by Wife after inquiry to Tyco resulted in Tyco finding it and providing it to Wife. Moreover, even locating someone at Tyco to look into this matter was a time-consuming process because both of the people with whom Wife had discussed the agreement were no longer employed by AMP/Tyco. 13. Admitted. By way of further clarification, at the March 15, 2000 alimony pendenle lite conference, Wife was in dire financial circumstances. Wife had not at that time received the amount indicated above although it had been provided for on her 1999 W-2. Wife had exhausted her unemployment benefits and had no other cash reserves and had no money to live on, was unemployed and recovering from major surgery that had occurred on January 27, 2000, and thus, unable, as she still is, to return to work (even if she had a job) even on a part-time basis. 14. Neither admitted nor denied. After reasonable investigation, Wife is without the knowledge necessary to form a belief as to the truth of the matter asserted. 15. There is no paragraph 15 in Husband's motion. 16. Neither admitted nor denied. This allegation constitutes a legal conclusion to which no response is required. However, by way of further clarification, and as indicated above, Wife was not aware of her imminent receipt of the asset payments prior to the entry of the alimony pendente lite order. 17. Denied. As Wife was not aware that she would be receiving the asset payments prior to the entry of the alimony pendente lite order, Wife did not fail to disclose this fact as, as of that date, it was not a fact. 18. Neither admitted nor denied. This allegation constitutes a legal conclusion to which no responsive pleading is required. However, by way of further clarification, Wife did not receive the payment until after the alimony pendente lite order had been appealed by Husband. Therefore, as the order was not yet final and was still subject to change, Wife was not under a duty to report a change in circumstances to the Domestic Relations Office as said circumstances would be taken into consideration at the de novo hearing. Moreover, it is clear that $147,703 of the $151,395.58 distribution was known to Husband as it was listed on Wife's 1999 W-2 and was discussed at the March 15, 2000 support conference. At most, the interest portion of the payment (the difference between the principal sum of $147,703 and the payment of $151,395.58) should be considered as income and such amount would not make a material difference in the APL award, and can be adjusted, if necessary, at the de novo hearing on August 16, 2000. 19. Admitted. 20. Denied. To the contrary, a de novo support hearing has been scheduled for August 16, 2000 at 8:45 a.m. 21. Admitted. 22. Neither admitted nor denied as this allegation constitutes a legal conclusion to which no responsive pleading is required. 22. (a) Admitted. 22. (b) Admitted. By way of further clarification, it is averred that due to the work restrictions placed on her by her physicians, that at least for the six-month period following Wife's surgery, which occurred on January 27, 2000, Wife's earning capacity should be zero. 22. (c) Admitted. 22. (d) Admitted. By way of further clarification, Wife was laid off from her employment from AMP in 1999. Accordingly, in the year 2000 when the alimony pendente lite order was entered into, Wife had no source of earnings. 23. Denied. To the contrary, Wife did not fail to disclose the true state of her financial circumstances prior to the entry of the March 15 alimony pendente lite order. Moreover, even if Wife had known of her future receipt of $151,395.58, and had disclosed said factor to the hearing officer, it would not have affected the alimony pendente lite order as her receipt of said funds does not constitute income but rather a non-marital separate asset of Wife's. Moreover, the characterization of the funds Wife received can be adequately addressed at the de novo hearing scheduled for August 2000. WHEREFORE, Plaintiff respectfully requests this Honorable Court to deny Defendant's Motion to Terminate, Or, Alternatively, Stay Alimony Pendente Lite Order. Respectfully submitted, Date: (!v C. Howeit, Jr., s uire HOWETT, KISSINGER & CONLEY, P.C. 130 Walnut Street P.O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 Counsel for Plaintiff Nina Loftin 6 VERIFICATION I, Nina Loftin, hereby swear and affirm that the facts contained in the foregoing Plaintiff's Answer to Defendant's Potion to Terminate, Or, Alternatively, Stay A]iriony Pendente Lite Order are true and correct to the best of my knowledge, information and belief and are made subject to the penalties of 18 Pa.C.S. §4904 relating to unswom falsification to authorities. Date: June 16, 2000 Nina Loftin In the Court of Common Pleas of CUMBERLAND County, Pennsylvania DOMESTIC RELATIONS SECTION Plaintiff Information SUMMARY OF TRIER OF FACT Defendant Information NINA LOFTIN JAMES F. KESSLER III Address: 717 MARKET ST BOX 333 LEMOYNE PA 17043-1581-99 Address: 1711 CHARLES ST NEW CUMBERLAND PA 17070-1157-11 Employer: Attorney: HOWETT JOHN C JR. PACSES Case Number: 435101836 Docket Number: 99-7442 CIVIL Other State ID Number: Please note: All correspondence must include the PACSES Cue Number. MARCH 15, 2000 Employer: IBM PAYROLL 5267 SIMPSON PERRY RD MECHANICSBURG PA 17055-3515-67 Attorney: THERESA BARREIT-MALE ? Complaint for Support ? Petition for Modification Filed ® Other Reason for Conference: WIFE PILED FOR SPOUSAL SUPPORT ON 12/8/99 AND APL ON 12/13/99. HUSBAND DENIES LIABILITY FOR SPOUSAL SUPPORT BECAUSE WIFE LEFT THE MARITAL HOME W/OUT LEGAL CAUSE & WILL NOT RECONCILE. Dependent(s) Current Order: $4,108.00 / per month EXHIBIT A $2,054/5 Form CM-022 _1 Service Type M Worker ID 21005 LOFTIN V. KESSLER PACSES Case NWnber: 435101836 Plaintiff Information Defendant Information Current Income: $50,000.00/A GROSS EARNING CAPACITY 185,000.00 + 15, 917. 10 (98 BONUS) $2,911.52/M EC NET $290,917/A GROSS SALARY $13,223.07/M NET Tar Return: 1999 W2=93,277.76 WAGES + 10,534 IN 1999 W2=186,146.51 UC BENEFITS $240,240.42 MEDICARE WAGES-INCLUDES 147,703 NON QUALIFIED RETIREMENT PLAN Medical Coverage: HUSBAND HAS COVERAGE. WIFE PICKED HUSBAND HAS COVERAGE FOR $90/M FOR UP COBRA THROUGH AMP..SHE IS GOING ADDITIONAL COVERAGE. TO DROP COBRA. Child Care/Tuition: Additional Obligations: LIVE IN MARITAL HOME AND HAS A HOUSE GUEST Other Information: 7/4/86• PARTIES WERE MARRIED S/14/99• PARTIES SEPARATED AND HUSBAND REMAINS IN THE MARITAL HOME BOTH PARTIES WERE EMPLOYED BY AMP HUSBAND STARTED WITH IBM IN 11/98. WIFE WAS LAID OFF FROM AMP IN 4/99 SHE RECEIVED UC BENEFITS AND A SEVERANCE PAY OF 25,117.00. UC BENEFITS ARE EXHAUSTED. 1/00 WIFE HAD A HYSTERECTOMY AND CONTENDS THAT RECUPERATION WILL BE 3-6 MONTHS_ AND SHE IS UNABLE TO WORK AT THIS TIME. i WIFE WILL BE 51 YRS OF AGE AND HAS A DEGREE IN INDUSTRIAL ENGINEERING. WIFE CONTENDS THAT OUT OF THE LAST FIVE POSITIONS THAT SHE HAS HELD, HUSBAND HIRED HER FOR FOUR OF THE POSITIONS. Page 2 of 3 Form CM-022 Service Type M Worker ID 21005 v. KESSLER PACSES Case Number: 435101836 LOFTIN Other Information (continued): 3/15/00, HUSBAND RECEIVED A BONUS IN THE AMOUNT OF 75 917.00. DRO RECOMMENDS THAT RETROACTIVE ARREARS BE PAID IN FULL BECAUSE HUSBAND HAS THE MANS TO PAY Facts Agreed Upon: Facts in Dispute and Contentions with Respect to Facts in Dispute: WIFE'S ABILITY TO WORK AND HER EARNING CAPACITY. Guideline Amount: $ 4,125. 00 / MONTH. DRS Recommended Amount: $ j., oo /MONTH DRS Recommended Order Effective Date: 12/13/92. Parties to be Covered by Recommended Order Amount: Guideline Deviation: ®YES or Q NO i i Reason for Deviation: MINUS WIPE (,A%,) OF MEDICAL COVERAGE COST I Submitted by: R ,J SHA )DAY Date Prepared: MARCH 15.2000 - Page 3 of 3 Form CM-022 Worker ID 21005 Service Type m IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOMESTIC RELATIONS SECTION NINA LOFTIN, ) Plaintiff ) DOCKET No. DR 29,273 PACSES Case No. 435101836 V. ) 99-7442 JAMES F. KESSLER, III, ) CIVIL ACTION - LAW Defendant ) CERTIFICATE OF SERVICE 1, John C. Howett, Jr., Esquire, counsel for Nina Loftin, Plaintiff in the above-captioned action, hereby certify that a true and correct copy of the foregoing Plaintiff's Answer to Defendant's Motion to Terminate, Or, Alternatively, Stay Alimony Pendente Lite Order was served upon Theresa Barrett Male, Esquire, counsel for Defendant James F. Kessler, III, by depositing same in the United States mail, first class, on June 16, 2000, addressed as follows: Theresa Barrett Male, Esquire 115 Pine Street, 2w Floor Harrisburg, PA 17101 Date: _C ,--L ( dill 3ehtfC. Hewett, Jr., Esquire----- HOWETT, KISSINGER & CONLEY, P.C. 130 Walnut Street P.O. Box 810 Harrisburg, PA 17108 Telephone: 717-234-2616 Counsel for Plaintiff Nina Loftin Theresa Barrett Male Supreme Court #46439 115 Pine Street Harrisburg, PA 17101 (717) 233-3220 Counsel For Defendant COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOMESTIC RELATIONS SECTION NINA LOFTIN, Plaintiff V. JAMES F. KESSLER, III Defendant PACSES Case Number 435101836 99-7442 Other State ID Number DEFENDANT'S REPLY TO PLAINTIFF'S ANSWER TO MOTION TO TERMINATE OR, ALTERNATIVELY, STAY ALIMONY PENDENTE LITE ORDER 1. The gravamen of Defendant's motion to terminate or stay the March 15, 2000 alimony pendente lite ("apl") order is that Plaintiff ("Wife") failed to disclose relevant and material facts to this Court, which failure worked a substantial injustice to Defendant. 2. In connection with Defendant's motion, this Court entered an order issuing a show-cause rule which Wife now has answered. 3. Wife's verified answer confirms that Wife not only failed to disclose material facts prior to entry of the apl order, but also that she has lied and continues to lie about these facts.' . DOCKET Number DR 29,273 1 Wife has deceived this Court, Husband, and her counsel. Deception N 1 4. "I did not know, as of June 3, 1999 or prior to that dote, that [I] was to receive [$151,395.58] in 2000 as part of [my] Separation Agreement with AMP., Inc. Answer at 1 12 (emphasis added). The Truth 5. On June 3, 1999, Wife executed a comprehensive Separation Agreement and Release ("Agreement") consisting of five (5) single-spaced pages. A true and correct copy of the Agreement is attached as Exhibit 1. 6. The Agreement, dated April 28, 1999, clearly, plainly, and unambiguously confirms that Wife was due $151,395.58 in January 2000: You will be paid a second severance payment of $147,703 during the first two weeks of January, 2000. This delayed payment will be credited with 5 percent annual simple interest from July 1, 1999 to December 31, 1999. This interest is calculated at $3,692.58, and will be paid at the same time as the severance payment. Exhibit 1 at 9 I.A. 7. The Agreement also recites in part: This letter serves as your notice that AMP Incorpo- rated will conduct reductions in staff at its Greater Harrisburg area facilities on April 28, 1999. Your position as Director, Technology Marketing will terminate on April 29, 1999, but you will be paid in lieu of notice and will continue on the payroll of the Company as an employee until June 27, 1999. This letter will also evidence the understandings reached in connection with your separation from 2 service with AMP Incorporated ("Company") and upon execution by you, will serve as the Separation Agreement and Release. Exhibit 1, first page. Deception N 2 8. ".. although [I] believed that [I] might receive some type offunds, it was [my] recollection that they were due to [me] in the first two weeks of January 2000. When said funds were not paid to [me] in January 2000, [I] believed that [I] would not receive them." Answer at 15 (emphasis added). The Truth 9. Paragraph I.A. of the Agreement clearly provides for payment of $147,703 plus interest of $3,692.58. See paragraph 6, supra. 10. Wife certified that she understood the terms of the Agreement when she signed it on June 3, 1999. See Exhibit 1, under "Release" on the signature page. 11. Wife had two originals of the Agreement, one of which she executed and returned to AMP. 12. The $147,703 payment is reported on Wife's 1999 W-2, which she received and provided at the March 15, 2000 apl conference. 13. Wife is not naive about finances, as evidenced by her position at AMP as the Director of Technology Marketing, and the salary she commanded. For example, in 1998, she earned $162,487. 3 Deception N 3 14. Wife "never received a copy of [the Agreement] as her copy was sent to the marital residence where Husband apparently confiscated it." Answer at 15. The Truth 15. Wife resided at 1711 Charles Street, New Cumberland, Pennsylvania ("the marital residence") until May 13, 1999. 16. The Agreement is addressed to Wife at the marital residence. 17. The Agreement directed Wife to execute and return one (1) of the two (2) originals to Harris T. Booker, then-Vice President for Global Human Resources. 18. Wife executed the Agreement on June 3, 1999, two weeks after she moved out of the marital residence. Deception N 4 19. At the March 15, 2000 apl conference, Wife adamantly denied any knowledge about the $147,703 distribution reported on her W-2 as a nonqualifred distribution, which brought her total Social Security wages to $240,240.42. The Truth 20. Wife knew exactly what that item was, having signed a comprehensive agreement on June 3, 1999 providing for such payment. Deception N 5 21. "... the [Separation Agreement] was provided by Wife's counsel as soon as it was finally received by Wife after inquiry to Tyco resulted in Tyco finding it and providing it to 4 Wife. Moreover, even locating someone at 7?eo to look into this matter was a time-consuming i I process because both of the people with whom Wife had discussed the agreement were no longer employed by AMP/Tyco." Answer at 1 12 (emphasis added). The Truth 22. The Agreement was readily available to Husband via subpoena to Tyco Electronics Corporation, AMP's successor. 23. As a former employee, Wife at all times during the pendency of this matter has had access to her personnel file. 24. In 1999, Wife received two originals of the Agreement, one to execute and return, and one to retain. Deception # 6 25. "... at the March 15, 2000 alimony pendente lite conference, Wife was in dire financial circumstances." Answer at 113. The Truth 26. In 1999, Wife had gross earnings of $93,865.58, plus $10,218 in unemployment compensation benefits, for a total of $104,083.58, or $8,673.63 per month gross. 27. Wife's monthly expenses as verified on her income and expense statement total about $5,000 per month, well below her actual earnings. 28. At the apl conference, Wife admitted that all her bills, including her rent and the lease payment on her Mercedes, were current. 5 29, In January 2000, wife closed her AMP Employee Savings and Thrift Plan, which then had a balance of $66,764.62. 30. Within a few weeks of the conference, Wife received $151,395.58. Deception N 7 31. At the time of the March 15, 2000 apl conference, Wife ,was unemployed and recovering from major surgery that had occurred on January 27, 2000, and thus, unable, as she still is, to return to work (even if she had a job) even on a part-time basis." The Truth 32, Wife underwent a hysterectomy in January 2000. 33. The typical recovery period for such surgery is six to eight weeks. 34. Wife is trim, fit, recovered from her hysterectomy, and able to work. Other Issues 35. Wife's bad faith conduct warrants an award of counsel fees in favor of Husband and against Wife pursuant to 42 Pa.C.S.A. § 2503. 36. Since entry of the March 15, 2000 apl order, Husband has paid to Wife in excess of $24,000, all of which Husband should recover from Wife. 37, The $151,395.58 paid to Wife in April 2000 is income as defined by 23 Pa.C.S.A. § 4302• Accord Rule 1910.16-2(a)(gross income is income from any source). See also Humphreys v. DeRoss, 737 A.2d 775 (1999 PA Super. 208) (holding that inheritance is income for support purposes; relied on Darby v. Darby, 455 Pa. Super. 63, 686 A.2d 1346 (1996), appeal den., 548 Pa. 670, 698 A.2d 594 (1997), which held that the section 4302 6 , examples of what constitutes income are not all-inclusive but rather guides for the court in determining what constitutes income). See also Gorhert v. Darkes, 100 PDDRR 3049 (20W)(monies derived from illegal drug sales is income under section 4302). Wherefore, Defendant requests the Court to enter an order: a. terminating the apl order pending the de novo hearing on August 16, 2000; or b. staying the order pending the hearing; or c. allowing Defendant to escrow the apl payments with his counsel pending the hearing. d. after hearing, awarding Defendant his counsel fees. e. after hearing, directing Plaintiff to repay Defendant in full all apl payments she has collected from him. IL? A"?_7to_a? Theresa Barrett Male, Esquire Supreme Court fl 46439 115 Pine Street Harrisburg, Pennsylvania 17101 (717) 233-3220 Counsel for Defendant Date: June 25, 2000 7 Exhibit 1 or AMP mcofwaica Marnsourg.PA 17105 3609 wMP Executive Offices April 28, 1999 Ms. Nina L. Loftin 1711 Charles Street New Cumberland, PA 17070 Re: Separation Agreement and Release This letter serves as your notice that AMP Incorporated will conduct reductions in staff at its Greater Harrisburg area facilities on April 29, 1999. Your position as Director, Technology Marketing will terminate on April 29, 1999, but you will be paid in lieu of notice and will continue on the payroll of the Company as an employee until June 27, 1999. This action is expected to be permanent. For further information or assistance please contact Robert Shepherd at (717) 592-7789. This letter will also evidence the understandings reached in connection with your separation from service with AMP Incorporated ("Company") and upon execution by you, will serve as the Separation Agreement and Release. Your execution of this Separation Agreement and Release (the "Agreement') will have legal consequences. Therefore, I urge that you review the terms of this Agreement with your attorney prior to making your decision to accept or reject the terms and conditions. 1. In consideration of your agreement to separate from the Company's service, your execution of this Agreement, and your agreement to be legally bound by the terms of this Agreement, the Company will extend to you the following severance benefits: A. Severance Pay. You will receive in the month following your employment termination and your return of this signed Agreement a lump sum cash severance payment equal to $11,117. You will also be paid in cash for twelve days of accrued, unused vacation time. You will be paid a second severance payment of $147,703 during the first two weeks of January, 2000. This delayed payment will be credited with 5 percent annual simple interest from July 1 to December 31, 1999. This interest is calculated at $3,692.58, and will be paid at the same time as the severance payment. The combined amount of these severance payments is equivalent to one year's base salary increased by 25% (the annual target cash bonus percentage applicable to you for 1998 under the Company's Management Incentive Plan). Applicable deductions will be taken from all payments for income tax, social security tax, and other charges required to be deducted by the Company pursuant to applicable law or the terms of the Company's plans. These payments will be inclusive of any payments you may have become eligible to receive under the Management Incentive Plan for the 1999. Subject to the obligations and covenants not to compete contained in non-competition agreements you have signed and now re-confirm under Section 2 of this Separation Agreement and Release, you will be free to accept employment elsewhere at any time. B. Other Compensation/Benefits. Your participation in the Company's group health plans under whatever level contract you are currently enrolled for will be continued for an eighteen (18) month period following your separation from service on the same terms and conditions as those plans are made available to active employees. You will then be offered the opportunity to continue health care coverage under the Company's group health plans for an additional eighteen (18) month period, as required under federal law, fully at your expense if elected. it. Your right to exercise any outstanding stock options under the Long Term Equity Incentive Plan (LTEIP) will be extended beyond your last day of active service to the Company for the full ten year exercise period originally assigned to each option at the time of grant, each option not otherwise vested became vested on April 2, 1999 on account of the change of control of the Company, and the options will otherwise remain subject while outstanding to all applicable provisions of the LTEIP. iii. Your vested interests in the AMP Incorporated Pension Plan and Employee Savings and Thrift Plan will be paid to you at your retirement age, or earlier if applicable, in accordance with the terms of those Plans. C. Pay in Lieu of Outplacement Service. You will be paid $14,000 in additional severance pay at the time of your termination in lieu of the outplacement services from Drake Beam Morin that you would have been eligible for. 2. Non-Competition Agreement. You are reminded of and confirm your obligations to comply with any and all covenants not to compete contained in non-competition agreements that you entered into with the Company during your employment with the Company. 3. Confidentiality Agreement You are reminded of and confirm your continuing post-termination obligations under the terms of the Confidentiality Agreement that you signed at the time of your hire with the Company. 4. Intellectual Property Agreement. You are reminded of and confirm your post- termination obligations under the terms of the Intellectual Property Agreement that you signed at the time of your hire with the Company. I PAF11 5. Cooperation in Transition and Litigation. You agree to make yourself available to the Company during a three month transition period covering April, May and June, 1999, to assist in the transition of projects and your work assignment to other individuals and functions. You also agree to provide the Company with reasonable cooperation and assistance, including the taking of depositions and the giving of testimony at trial if deemed necessary, for all lawsuits for which your testimony may be warranted. The Company shall reimburse you for any reasonable and necessary expense incurred as a result of your cooperation and assistance. 6. Non-Disparagement and Non-Solicitation. You agree you will do nothing to disparage the Company or any of the Releasees. You also agree not to solicit or help any one else to solicit any employees or customers of the Company to cease employment with the Company or with any of the Releasees. Should you breach this non-disparagement or non-solicitation provision, the Company or any Releases may pursue all available remedies or damages, at law or inequity. 7. Release A. In exchange for good and valuable consideration described above, the benefits to which you are entitled under Company policies, you, Nina L. Loftin, on behalf of yourself and any heirs, representatives, executors, administrators, successors and assigns agree to release and forever discharge the Company, each and every officer, director, administrator and employee of the Company, and their successors and assigns, and any person, firm, corporation, association or partnership affiliated with the Company, whether currently known or unknown to you (collectively "Releasees"), from all actions, suits, debts, covenants, contracts, agreements, judgments, claims and demands whatsoever, in law or equity (collectively "claims"), whether known or unknown to you, arising out of or in any way connected with your employment with the Company or the termination of that employment. By this release, you understand that you are giving up all claims against the Company, or against any person acting on the Company's behalf, or against any affiliated Company, related to your employment and termination of employment by the Company. Further, you agree that your release includes but is not limited to claims for breach of contract, impairment of economic opportunity, wrongful discharge, intentional infliction of emotional harm, promissory estoppel, defamation, fraud, misrepresentation, or any other tort (legal wrong), and also claims arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e et seq. (relating to sex, race and certain other kinds of job discrimination); the Age Discrimination in Employment Act, 29 U.S.C. §§629 at seq. (relating to age discrimination in employment); the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. Ann. §§951 et seq. (relating to all the above forms of job discrimination), and any other federal, state or municipal statute, ordinance, executive order or regulation relating to discrimination in employment or in any way pertaining to employment relationships, which against the above- AMP 8. 9. 10. 11. described Releasees you now have or ever had (but not which may arise subsequent to the date you execute this Agreement). B• You represent and warrant that you have disclosed all actual or suspected violations of foreign, federal, state or local laws or regulations of which you are aware and you release the Releasees from any and all claims related thereto, both directly and derivatively. Age Discrimination in Employment Act Notice. The following required by federal law to be included in a severance benefit arrangement informatition is type: this date it, You have forty-five (45) days in which to review this Agreement, signorneyand , and return an executed copy to me. You should consult an att prior to signing. B. F days in to revoke this ollowing your signing of this Agreement, you have an additional seven (7) must be nhwritn g, signed, dated rand provided oethe effective Your revcation Company (Attn:Harris Booker) no later than seven (7) days from the date on which you signed and dated your acceptance of this offer. C. Enclosed is a table of demographic information showing by age the composition of the entire top management group of which you are a member and the composition of the portion of that group terminating employment in connection with the present down-sizing of the top management group. Governing Law. This Agreement shall be governed by and construed under the laws of the Commonwealth of Pennsylvania without respect to the Commonwealth's conflicts of laws provisions, and applicable federal law. Severability. Should any part, term or provision of this Agreement be determined by any court to be illegal or invalid, this shall not affect the validity of the remaining parts, terms and provisions of this agreement. This agreement shall not be construed as an admission by the Company of any liability to you or of the violation by the Company of any statute or legal or equitable obligation. Entire Agreement This Agreement sets forth the entire agreement between the parties, and fully supersedes any and all prior agreements or understandings between the parties pertaining to the subject matter of this Agreement. _rT?TI To indicate your acceptance of this Agreement, sign both originals in the location indicated following the Release below and return one to Harris Booker at P.O. Box 3608, M.S. 176-49, Harrisburg, PA 17105-3608. AMP Incorporated By e / & Harris T. Booker, Jr. Vice President Global Human Resources RELEASE: I hereby certify that I have read the terms of this Agreement, that I have had the opportunity to discuss this Agreement with my attorney, that the Company advised me I have up to forty-five (45) days to review this Agreement and the meaning and consequences of it with my attorney, and that I understand its terms and effects. I acknowledge that I am executing this Agreement voluntarily, with a full understanding of its terms and effects, in exchange for consideration, which I acknowledge is adequate and satisfactory to me. I understand I have seven (7) days from the execution of this Agreement to advise the Company that I am revoking it, and I understand that at the end of the seven-day period, if I do not revoke the Agreement, it will be in full force and effect. I intend for this Separation Agreement and Release to comply with Section 201 of the Older Workers Benefit Protection Act of 1990. Intending to be legally bound by the terms and conditions of this Agreement: ACCEPTED AND AGREED: Date: ?y9 - Iina'L?Loftio ' ? VERIFICATION I, Theresa Barrett Male, Esquire state the averments set forth in the foregoing document are within my knowledge as counsel for Defendant. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities. Theresa Barrett Male Date: June 25, 2000 tggsy... . PROOF OF SERVICE I hereby certify that I am this day serving a copy of the foregoing document upon the persons and in the manner indicated below which service satisfies the requirements of Pa. R.C.P. 440: Service via first-class mail addressed as follows: Michael R. Rundle, Esquire 28 S. Pitt Street Carlisle, PA 17103 DRS Solicitor John C. Howett, Jr., Esquire Howett, Kissinger & Conley, P.C. P.O. Box 810 Harrisburg, PA 17108 Attorneys for Plaintiff /Z,V,f- A?2? Theresa Barrett Male, Esquire Supreme Court N 46439 115 Pine Street Harrisburg, Pennsylvania 17101 (717) 233-3220 Counsel for Defendant Date: June 26, 2000 r r y cl; 7 [? ty, j - ELI ZZE) f c. - (1 ? n t l f T f r ?'? { m w.?' . . ?i t I r ?, " i ? a R' ? t ?, v W 1 G d + J 4ryt ` .. R , f f ? .ter S (?- ? ? n S} i a k s.x I r; ? Q ' dvrr S 1L r r ? Zf?1 '? I. I M O ? + _ 15 ? i. ? of ,? W 1 I M F 1 s ? ` ` f + T ^1 y^jr y y j L, ul s c `, I - y i. Fi r t S . S "Y '? y rT PJ. 'l t , T?L:! tr I f IY hyh vK. ?l ? 7? y 1 Y i?t 7i ? n r t y' is r i?f IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOMESTIC RELATIONS SECTION NINA LOFTIN, Plaintiff V. JAMES F. KESSLER, III, Defendant No. 99 - 7442 DR No. 29,273 PACSES Case No. 435101836 CIVIL ACTION - LAW PLAINTIFF'S MOTION TO STRIKE "DEFENDANT'S REPLY TO PLAINTIFF'S ANSWER TO MOTION TO TERMINATE OR ALTERNATIVELY STAY ALIMONY PENDENTE LITE ORDER" AND NOW comes Plaintiff Nina Loftin, by and through her counsel, Howett, Kissinger & Conley, P.C., who states the following in support of the within Motion to Strike: Defendant's pleading, styled as "Defendant's Reply to Plaintiff's Answer to Motion to Terminate Or, Alternatively, Stay Alimony Pendente Life Order"is not a proper pleading inasmuch as no "reply" to Plaintiffs Answer is required or authorized by the Rules of Civil Procedural. 2. Defendant's "reply" is not verified by Defendant but rather by counsel for Defendant and contains averments which are not only untrue, but which counsel could have no personal knowledge. 3. The entire argument in Defendant's "reply" is based upon counsel's belief that the Separation Agreement and Release signed by Plaintiff on June 3, 1999 was a document that Plaintiff was familiar with and had seen prior to said date. Counsel basis her argument on the fact that the copy of the agreement attached as her Exhibit 1 bears a date of Apri 128, 1999, This document was received by Defendant's counsel in advance of a deposition scheduled and held on the afternoon of Monday, June 26, 2000. Counsel prepared and signed this motion as well as the verification to said motion on June 25, 2000, prior to said deposition. 4. At said deposition, a Mr. Walt Sokalsky, who identified said document at the deposition, testified that he obtained said document from Plaintiff's personnel file at AMP. However, he acknowledged that he, himself, did not personally obtain it and later acknowledged that he was not sure where the document came from. Mr. Scott Fair, also deposed on June 26, 2000, and also an employee of AMP/Tyco, produced Plaintiff's personnel file from which Mr. Sokalsky had indicated he had obtained the dated copy of the Separate Agreement and Release. Mr. Fair testified under oath that the personnel file produced at the deposition was a true, correct and accurate copy of Plaintiffs entire personnel file. In said personnel file were two copies of the Separation Agreement and Release, signed by Plaintiff on June 3, 1999, both of which copies did not bear any date on the first page. Neither Mr. Fair nor Mr. Sokalsky were able to state where the dated copy came from. 6. Plaintiff has consistently stated that she did not see said document until the day she signed it on June 3, 1999 in the offices of AMP. Defendant's counsel obviously prepared said motion prior to the deposition but did not tell the undersigned counsel about the pleading nor provide a copy at the deposition but rather placed it in the mail. Defendant's counsel's utilization of the dated copy of the agreement in her "reply" prior to the deposition is highly improper, particularly when the witnesses subpoenaed for the deposition (subpoenaed by Defendant's counsel at this deposition scheduled and conducted by her) established that the only copies of the agreement that existed in Plaintiffs personnel file bear no date in advance of the date that she signed the documents on June 3, 1999. The source of the particular agreement dated April 28 was unknown to the deponents, however, it was conclusively established that said document did not come from Plaintiff's personnel file. Moreover, the fact that both copies of the document in her personnel file were undated is completely consistent with Plaintiffs statement throughout these entire proceedings. 9. This matter is scheduled for a de novo hearing before this Court on August 16, 2000, and it would be grossly unjust to terminate or stay the alimony pendente lite order in advance of an opportunity to present the facts and circumstances to this Court in a record hearing. Moreover, to deny or stay the alimony pendente lite on the basis of Defendant's "reply" which is based entirely upon a document, the authenticity of which is clearly questionable, before the opportunity to present all facts and circumstances at a record hearing, would be equally unjust. WHEREFORE, Plaintiff requests your Honorable Court to strike Defendant's "reply" and to withhold any ruling on Defendant's motion to terminate or stay alimony pendente lite until this matter has been presented to the Court at the de novo hearing on August 16, 2000. Respectfully submitted, Date: 17 C JdWC. Howett, Jr., Esquire HOWETT, KISSINGER & CONLEY, P.C. 130 Walnut Street P.O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 Counsel for Plaintiff Nina Loftin VERIFICATION I, Nina Loftin, hereby swear and affirm that the facts contained in the foregoing Plaintiff's Motion to Strike are true and correct to the best of my knowledge, information and belief and are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. Date: 6/27/00 Nina Loftin IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOMESTIC RELATIONS SECTION NINA LOFTIN, ) Plaintiff ) No. 99 - 7442 DR No. 29,273 V. ) PACSES Case No. 435 1 01 83 6 JAMES F. KESSLER, III, ) CIVIL ACTION - LAW Defendant ) CERTIFICATE OF SERVICE I, John C. Howett, Jr., Esquire, counsel for Nina Loftin, Plaintiff in the above-captioned action, hereby certify that a true and correct copy of the foregoing Plaintiff's Motion to Strike "Defendant's Reply to Plaintiffs Answer to Motion to Terminate or, Alternatively, Stay Alimony Pendente Lite Order was served upon Theresa Barrett Male, Esquire, counsel for Defendant James F. Kessler, III, depositing same in the United States mail, first class, on June 27, 2000, addressed as follows: Theresa Barrett Male, Esquire 115 Pine Street Harrisburg, PA 17101 Date: a> 06 V Jo C. Howell, Jr., quire HOWETT, KISSINGER & CONLEY, P.C. 130 Walnut Street P.O. Box 810 Harrisburg, PA 17108 Telephone: 717-234-2616 Counsel for Plaintiff Nina Loftin Theresa Barrett Male supreme Court #46439 115 Pine Street Harrisburg, PA 17101 (717) 233-3220 Counsel For Defendant COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NINA LOFTIN Plaintiff v. 99-7442 JAMES F. KESSLER, III Defendant CIVIL ACTION - DIVORCE DEFENDANT'S BRIEF Pending before the Court and ripe for disposition are: 1. Defendant's request for a hearing de novo on the March 15, 2000 apl order, filed 03/27/00. 2. Defendant's request for counsel fees on the apl matter, filed 06/27/00. 3, Defendant's application for special relief; seeking equitable relief and monetary damages, filed 07/11/00. 4. Plaintiff's petition for exclusive possession of the marital residence, filed 07/21/00. Facts Not in Dispute 1. Plaintiff Nina Loftin ("Wife") and Defendant James F. Kessler, III ("Husband") were married on July 2, 1988. y;. '. i 2. The parties separated on May 13, 1999 3. On June 3, 1999, Wife signed with AMP a Separation Agreement and Release. 4. Wife filed this divorce action on December 13, 1999. 5. In 1999, Wife was employed by AMP, Inc. as Director of Marketing Technology. 6. Wife's 1999 W-2 reports medicare wages of $240,240.42, which includes a non- qualified pension distribution of $147,300. Wife's local wages were reported at $93,277.76. 7. Wife received $10,218 in unemployment compensation benefits in 1999. 8. For the period ending July 7, 1999, Wife had gross earnings from AMP of $93,865.58, which included severance pay of $25,117.00. 9. Wife's 1998 W-2 confirms that she earned $165,290.08 in that year. 10. While employed by AMP, Wife had annual income in 1995 of $112,519; in 1996 of $155,817; and in 1997 of $138,101. 11. Following conferences on February 7 and March 15, 2000, the conference officer set Husband's apl obligation at $4,108 per month. 12. The conference officer assigned Wife an earnings capacity of only $40,000 to $50,000 annually, and set her net monthly income at $2,911.52. 13. On April 4, 2000, Husband filed a motion to stay the apl order pending Husband's de novo hearing. 14. By order dated April 6, 2000, the Court denied the motion. 15. On or about April 7, 2000, Wife received $151,395.58, exclusive of taxes, from AMP. 2 16. On June 6, 2000, Husband filed a motion to terminate, or alternatively, stay the March 15 apl order. 17. Wife filed an answer on June 16, 2000. 18. On June 27, 2000, Husband filed a reply, which he amended on June 28, 2000. 19. By order dated June 29, 2000, the Court granted the motion in part and directed Husband to escrow the apl payments in his counsel's IOLTA account pending resolution of the de novo hearing. 20. On July 11, 2000, Husband filed an application for special relief based on Wife's resumption of occupancy in the marital residence. 21. On July 11, 2000, Husband also moved to dismiss Wife's apl claim, or, alternatively, to direct Wife to submit to a vocational assessment. 22. On July 17, 2000, the Court issued a show-cause rule, returnable on July 26, 2000. 23. On July 21, 2000, Wife filed a petition seeking exclusive possession of the marital residence. 24. On July 24, 2000, the Court issued a show-cause rule on Wife's special relief petition, returnable at the hearing now set for October 11. 25. Wife did not timely file her answer to the vocational assessment motion, as a result of which the Court made the rule absolute and granted the motion by order dated August 16, 2000. 3 Relevant Law "APL is based on the need of one party to have equal financial resources to pursue a divorce proceeding when, in theory, the other party has major assets which are the financial sinews of domestic warfare." DeMasi v. DeMasi, 408 Pa. Super. 414, 420, 597 A.2d 101, 104 (1991), appeal denied, 535 Pa. 619, 629 A.2d 1380 (1993). APL focuses on the ability of the individual who receives the APL during the course of the litigation to defend her/himself, and the only issue is whether the amount is reasonable for that purpose, which turns on the economic resources available to the spouse." Id. at 421-22, 597 A.2d at 105. Litman v. Litman, 449 Pa. Super. 209, _, 673 A.2d 382, 388. At the March 15, 2000 DRS conference, Wife produced an income and expense statement confirming expenses of $5,000 per month. This was well below her 1999 earnings of $104,083.58, and substantially less than her earnings capacity of $165,000 annually. At that conference, Wife conceded that all her bills, including her rent and the lease payment on her Mercedes, were current. Within a few weeks of the March 15 conference, Wife received $151,395.58. She did not disclose this at the conference, nor did she notify the court as required by 23 Pa. C.S.A. § 4353(a). This Court therefore should order Wife to refund all apl payments to Husband. See, e.g., Albert v. Albert, _ Pa. Super. _, 707 A.2d 234 (1998) (under-reporting of annual income by $40,000 provided basis for retroactive increase of arrears). Wife contends that the $151,395.58 payment is not income, but rather an asset. See Plaintiff's Answer to Defendant's Motion to Terminate at 14. This position is inconsistent with the statutory definition of income. See 23 Pa.C.S.A. § 4302. Accord Rule 1910.16-2(a) (gross income is income from any source). See also Humphreys v. DeRoss, 737 A.2d 775 (1999 PA 4 Super. 208) (inheritance is income for support purposes; relied on Darby v. Darby, 455 Pa. Super. 63, 686 A.2d 1346 (1996), appeal den., 548 Pa. 670, 698 A.2d 594 (1997), which held that the section 4302 examples of what constitutes income are not all-inclusive but rather guides for the court in determining what constitutes income). See also Kaufman v. Kauffnian, Dauphin County N 3247 S 1999, publication pending (Husband's income from retirement accounts including IRAs is income for purposes of apl, and not, as Husband claimed, a dissipation of assets). Even assuming, arguendo, that the $151,395.58 payment is an asset, and not income, Husband still is entitled to a refund of all the apl payments he has made, including the $16,432 arrears payment. Wife had ample income in 1999, the year in which she filed for apl, to meet her needs and expenses. Moreover, Wife's earnings capacity of $165,000 clearly militates against the apl award.' the pendency of this proceeding, Wife has misrepresented material facts and Throughout failed to disclose the true state of her financial circumstances. She failed to inform the conference officer and Husband on March 15 of her entitlement to $151,395.58 in 2000. Wife did not inform the court, as required by law and by the apl order, of this substantial change in her financial circumstances. Additionally, as detailed in Husband's reply to Wife's answer to ' In addition to substantially under-estimating Wife's earnings level, the conference officer erred by including in Husband's 1999 income a bonus he received in March 2000. 5 f I? Husband also is entitled to relief on his application relating to Wife's resumption of occupancy at the marital residence. After informing Husband through counsel that she wanted to move back into the marital residence effective August 1, 2000, Wife unilaterally and without notice to Husband, resumed living there on July 6. She changed the locks, and the security code; disposed of some of Husband's property, including mail; and refused Husband access to the property, all as more particularly set out in the application. Husband sustained out of pocket expenses and legal fees in excess of $5,000 as a direct result of Wife's conduct. The final matter for disposition is Wife's petition for exclusive possession of the marital residence, which she filed only after Husband sought relief from the Court. Husband does not oppose this provided he has access to the property and opportunity to remove his personalty. Conclusion For all of the foregoing reasons, Defendant requests the Court to: a. terminate the March 15, 2000 apl order with prejudice; b. direct Plaintiff to reimburse Defendant all apl payments by within thirty (30) days. C. award Defendant the apl monies held in his counsel's IOLTA account. d. award Defendant counsel fees and out-of-pocket expenses he incurred from July 7 through July 9, 2000 in the sum of $5,000.00. e. award Defendant counsel fees in the sum of $10,335 168.9 hours at $150 per hour] pursuant to 42 Pa.C.S.A. § 2503. 6 f. award Defendant a sanction against Plaintiff in the amount of $25,000, to be paid via equitable distribution. g. grant Defendant access to the marital residence with a mover so that he can make arrangements to remove his property. h. allow Defendant to move from the marital residence his personal property, including all household goods and furnishings he acquired prior to the parties' marriage. Theresa Barrett Male, Esquire Supreme Court N 46439 115 Pine Street Harrisburg, Pennsylvania 17101 (717) 233-3220 Counsel for Defendant Date: October 11, 2000 7 PROOF OF SERVICE I hereby certify that I am this day serving a copy of the foregoing document upon the persons and in the manner indicated below which service satisfies the requirements of Pa. R.C.P. 440: Service via fax addressed as follows: John C. Howett, Jr., Esquire Howett, Kissinger & Conley, P.C. P.O. Box 810 Harrisburg, PA 17108 Attorneys for Plaintiff 2Z?L?A&Z" Theresa Barrett Male, Esquire Supreme Court # 46439 115 Pine Street Harrisburg, Pennsylvania 17101 (717) 233-3220 Counsel for Defendant Date: October 11, 2000 Y? 1 , ) I I l.i J. 1411 iil 11?. t> ' 1 r. IIYIA•( r}T ,.:, ,.t ,•.:. 1- ?:" ?. ".:. - . Vii. , r?r1; 3F1 j/ f 1 ? ` ;1 I?bJ??l i) L f ;'.'? r I r ;r?t1t34 r f rJ 4 t y. if _ ?')??? `N t?\ Jj it - .. I t I d 7 1, 1 ( T i' l'- I i ty? t Y^( I t }Il?? JAt 1 J( l I j 5 1 4 ??? ry?/S ?; t _ t i v f? , rLl ,? t t 1IL i f+4I Cl ? / r ` 1 rr 1 ? i) f ( Yt'f t ?y F rKkS r? 1 F r 1 ?.? ?yZ F, !Saint i,?Y JJ It l?l W i^? IIJ /1 44\{1t?AAT.." 1 wn'rii L < rRJ i ;A}, ryt ? ti 1 1 t -? t (3? eti, I 4 1 } t?l it ?ti??l? ?Y t r r ^ 111} rtb+t b 1 Y vy'?c??F9A'r t ( , 1 t PS l S } i _ 1 I l {L{' h?1? r. r t. l xr{ If 1 + fFy?I{i r 7 ? r 1) 1 r ?,t ? t 41e Alr`Y?i a 1 f } r.?'{ 1t v`''im t t J"' I??,j y4?y. 1 a ? -' tl rI'+?gqMF a 1. NINA LOITIN, Plainliff/Petitioner VS. JAMES F. KESSLER, Ill Defendant/Respondent DR 29,273 PACSES ID 435101836 IN'T'116 COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOMESTIC RELA'T'IONS SEC'T'ION CIVIL ACTION - LAW NO. 99-7442 CIV11.'1'ERM ORDER OF COURT AND NOW, this 15'h day of March, 2000, based upon the Court's determination that Petitioner's monthly net income/earning capacity is $2,911.52 per month and Respondent's monthly net income/earning capacity is $13,223.07 per month, it is hereby Ordered that the Respondent pay to the Pennsylvania State Collection and Disbursement Unit, $4,108.00 a month payable monthly for alimony pendente lite. First payment due on or before March 31, 2000 in the amount of $16,432.00. Arrears set at $16,432.00. The effective date of the order is December 13, 1999. Due to husband receiving his annual bonus and said bonus being calculated in an annual salary, husband is to make full payment of retroactive arrears on or before March 31, 2000 to his attorney and payment is to be made to wife's attorney. Wife's attorney will then report tothe Domestic Relations Section the amount that was paid and credit will be given to APL account. Thereafter, commencing on April 15, 2000, husband is to make semi-monthly payments in the amount of $2,054.00 on or before the 15`h day and last day of each month. Failure to make each payment on time and in full will cause all arrears to become subject to immediate collection by all of the means as provided by 23 Pa.C.S.§ 3703. Further, if the Court finds, after hearing, that the Respondent has willfully failed to comply with this Order, it may declare the Respondent in civil contempt of Court and its discretion make an appropriate Order, including, but not limited to, commitment of the Respondent to prison for a period not to exceed six months. Said money to be turned over by the PA SCDU to: Nina Loftin. Payments must be made by check or money order. All checks and money orders must be made payable to PA SCDU and mailed to: PA SCDU P.O. Box 69110 Harrisburg, PA 17106-9110 Payments must include the defendant's PACSES Member Number or Social Security Number in order to be processed. Do not send cash by mail. Unreimbursed medical expenses that exceed $250.00 annually are to be paid 0% by the respondent and 100% by petitioner. The plaintiff is responsible to pay the first $250.00 annually in unreimbursed medical expenses. Respondent to provide medical insurance coverage. Within thirty (30) days after the entry of this order, the Respondent shall submit written proof that medical insurance coverage has been obtained or that application for coverage has been made. Proof of coverage shall consist, at a minimum, of: 1) the name of the health care coverage provider(s); 2) any applicable identification numbers; 3) any cards evidencing coverage; 4) the address to which claims should be made; 5) a description of any restrictions on usage, such as prior approval far hospital admissions, and the manner of obtaining approval; 6) a copy of the benefit booklet or coverage contract; 7) a description of all deductibles and co-payments; and 8) five copies ol'any claim firms, This Order shall become final ten days after the mailing of the notice ol'the entry ()I' the Order to the parties unless either party files a written demand with the Prothonotary lift it hearing tie novo before the Court. DRO: R. J. Shaddav Mailed copies on Petitioner •j ) -)(J 1o: < Respondent John Howell, Jr., Esquire 'Ilrcresa Barrett-Male, Esquire BY THE COUR•f, -, Edgar B-Bayley- J. i.: Ilf?' ? Li- - _ C-. . ( V NINA LOFTIN, PI ainl iff/Pctitioncr VS. JAMES F. KESSLER,111, Defendant/Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - DIVORCE NO.99 - 7442 CIVIL TERM IN DIVORCE DRk 29,273 PacseO 435101836 ORDER OF COURT AND NOW, this 22"' day of December, 1999, upon consideration of the attached Petition for Alimony Pendente Lite and/or counsel fees, it is hereby directed that the parties and their respective counsel appear before R.I. Shaddav on Januar p 18, 1999 at 10:30 A.M. for a conference, at 13 N. Hanover St., Carlisle, PA 17013, alter which the conference officer may recommend that an Order for Alimony Pendente Lite be entered. The conference on the spousal support petition previously scheduled before Amy Ickes, will now be heard by RJ Shadday at this time. YOU are further ordered to bring to the conference: (1) a true copy of your most recent Federal Income Tax Return, including W-2's as filed (2) your pay stubs for the preceding six (6) months (3) the Income and Expense Statement attached to this order, completed as required by Rule 1910.110 (4) verification of child care expenses (5) proof of medical coverage which you may have, or may have available to you IF you fail to appear for the conference or bring the required documents, the Court may issue a warrant for your arrest. BY THE COURT, George E. Hoffer, President Judge Mail copies on Petitioner 12-22-99 to: < Respondent John Howen, Jr., Esquire Theresa B. Male, Esquire Date of Order: December 22. 1999 Rj . Shadday, Conference Officer YOU HAVE THE RIGHT TO A LAWYER, WHO MAY ATTEND THE CONFERENCE AND REPRESENT YOU. 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 MAY GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVE. CARLISLE, PENNSYLVANIA 17013 (717)249.3166 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUN NINA LOFTIN, ) Plaintiff ) V. ) NO. JAMES F. KESSLER III ) CIVIL ACTION -LAW , Defendant ) IN DIVORCE p NOTICE TO DEFEND AND CLAIM RIGHTS You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take prompt action. You are warned that if you fail to do so, the case may proceed without you and a decree of divorce or annulment may be entered against you by the court. A judgment may also be entered against you for any other claim or relief requested in these papers by the Plaintiff. You may lose money or property or other rights important to you, including custody or visitation of your children. 'J c.; When the ground for divorce is indignities or irretrievable breakdown of the marriage, you may request marriage counseling. A list of marriage counselors is available in the Office of the Prothonotary, Cumberland County Courthouse, I Courthouse Square, Carlisle, Pennsylvania 17013. IF YOU DO NOT FILE A CLAIM FOR ALIMONY, DIVISION OF PROPERTY, LAWYER'S FEES OR EXPENSES BEFORE A DIVORCE OR ANNULMENT IS GRANTED, YOU MAY LOSE THE RIGHT TO CLAIM ANY OF THEM. 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) 240-6200 AMERICANS WITH DISABILITIES ACT OF 1990 The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. :a CIVIL 1999 •7A1.2 E'vs?n IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NINA LOFTIN, Plaintiff ) V. ) NO. CIVIL 1999 JAMES F. KESSLER, 111, ) CIVIL ACTION - LAW Defendant ) IN DIVORCE COMPLAINT IN DIVORCE AND NOW comes Plaintiff, Nina Loftin, by and through her counsel, Howett, Kissinger & Conley, P.C., who states the following in support of the within Complaint: 1. Plaintiff is Nina Loftin, an adult individual who currently resides at 717 Market Street, #333, Lemoyne, Cumberland County, Pennsylvania, 17043. 2. Defendant is James F. Kessler, III, an adult individual who currently resides at 1711 Charles Street, New Cumberland, Cumberland County, Pennsylvania, 17070. 3. Both the Plaintiff and the Defendant have been bona fide residents in the Commonwealth of Pennsylvania for a period of at least six (6) months immediately preceding the filing of this Complaint. 4. Plaintiff and Defendant were married on July 4, 1988 in the British West Indies. 5. Neither Plaintiff nor Defendant is in the military or naval service of the United States of its allies within the provisions of the Soldiers' and Sailors' Civil Relief Act of the Congress of 1940 and its amendments. 6. There have been no prior actions for divorce or annulment of the marriage instituted by either of the parties in this or any other jurisdiction. It-- ?j I, Plaintiff has been advised that counseling is available and that Plaintiff may have the right to request that the Court require the parties to participate in counseling. COUNT I DIVORCE PURSUANT TO 43301(c) or (d) OF THE DIVORCE CODE 8. The prior paragraphs of this Complaint are incorporated herein by reference thereto. 9. The marriage of the parties is irretrievably broken. WHEREFORE, Plaintiff respectfully requests the Court to enter a Decree of Divorce pursuant to §3301 of the Divorce Code. COUNT II - EQUITABLE DISTRIBUTION 10. The prior paragraphs of this Complaint are incorporated herein by reference thereto. it. Plaintiff and Defendant have legally and beneficially acquired property, both real and personal, during their marriage, which property is "marital property." WHEREFORE, Plaintiff requests the Court to equitably divide all marital property. COUNT III - ALIMONY AND ALIMONY PENDENTE LITE 12. The prior paragraphs of this Complaint are incorporated herein by reference thereto. 13. Plaintiff lacks sufficient property to provide for her reasonable means and is unable to support herself through appropriate employment and requires reasonable support to adequately maintain herself in accordance with the standard of living established during the marriage. 14. Plaintiff is unable to sustain herself during the course of this litigation. WHEREFORE, Plaintiff requests the Court to enter an award of reasonable temporary alimony until final hearing and permanently thereafter. COUNT IV - COUNSEL FEES. EXPENSES AND COSTS OF SUIT 15. The prior paragraphs of this Complaint are incorporated herein by reference thereto. 16. Plaintiff has retained an attorney to bring this action and has agreed to pay him a reasonable fee. 17. Plaintiff has incurred and will incur costs and expenses in prosecuting this action. 18. Plaintiff is not financially able to meet either the expenses and costs of prosecuting this action or the fees to which her attorney will be entitled in this case. WHEREFORE, Plaintiff requests the Court to enter an award of interim counsel fees, costs and expenses until final hearing and thereupon award such additional counsel fees, costs and expenses as deemed appropriate. Date: ly it, Q r Respectfully submitted, C. Howett, Jr., quire HOWETT, KISSINGER & CONLEY, P.C. 130 Walnut Street P.O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 Counsel for Plaintiff Nina Loftin y r VERIFICATION I, Nina Loftin, hereby swear and affirm that the facts contained in the foregoing Complaint in Divorce are true and correct to the best of my knowledge, information and belief and are made subject to the penalties of 18 Pa.C.S. §4904 relating to unswom falsification to authorities. /I ct I L` Ct Date: Nina Loftin t ` ? t NINA LOFTIN, P lai nl i Ir/Petitioner VS. JAMES F. KESSLER, III, Defendant/Rcspondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - DIVORCE NO. 99-7442 CIVIL TERM IN DIVORCE DR# 29,273 Pacsesk 435101836 ORDER OF COURT NOTICE OF RESCHEDULED CONFERENCE AND NOW, thisl9th day of January, 2000, upon consideration of the Petition for Alimony Pendente Lite and/or counsel fees, it is hereby directed that the parties and their respective counsel appear before R.J. Shaddav on February 7, 2000 at 10:30 A.M. for a conference, at 13 N. Hanover St., Carlisle, PA 17013, after which the conference officer may recommend that an Order for Alimony Pcndente Lite be entered. YOU are further ordered to bring to the conference: (1) a true copy of your most recent Federal Income Tax Return, including W-2's as filed (2) your pay stubs for the preceding six (6) months (3) the Income and Expense Statement attached to this order, completed as required by Rule 1910.110 (4) verification of child care expenses (5) proof of medical coverage which you may have, or may have available to you IF you fail to appear for the conference or bring the required documents, the Court may issue a warrant for your arrest. BY THE COURT, George E. Hoffer, President Judge NM 'Copies on? Petitioner 1=19-00 Ui'. < Respondent J. Howett, Jr., Esquire T. Barrett-Male, Esqsuire n Date of Order: January 19. 2000 R. ..Shaddo, Conference Officer YOU HAVE THE RIGHT TO A LAWYER, WHO MAY AT END THE CONFERENCE AN ' REPRESENT YOU. 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 MAY GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVE. CARLISLE, PENNSYLVANIA 17013 (717) 249-3166 N C i C ur? ti C)C?l - r-- N ri r I. `i?= CV -?7 c: i - :. C--) =i C, o c? FrMT' NINA LOFTIN, IN THE COURT OF COMMON PLEAS OF Plaintiff(Pelilioner CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION - DIVORCE JAMES F. KESSLER, III, Dcfcndanl/Respondent NO. 9'J - 7442 CIVIL TERM IN DIVORCE DR# 29,273 Pacses# 435101836 ORDER OF COURT NOTICE OF RESCHEDULED CONFERENCE AND NOW, this 23"' dap of Febntarv. 2000, upon consideration of the Petition for Alimony Pendente Lite and/or counsel fees, it is hereby directed that the parties and their respective counsel appear before R.J. Shaddav on March 15, 2000 at 9:00 A.M. for a conference, at 13 N. Hanover St., Carlisle, PA 17013, after which the conference officer may recommend that an Order for Alimonv Pendente Lite be entered. YOU are further ordered to bring to the conference (I) a (me copy ofyour most recent Federal Income Tax Return, including W-2's as filed (2) your pay stubs for the preceding six (6) months (3) the Income and Expense Statement attached to the original notice to appear, completed as required by Rule 1910.1 I x9 (4) verification of child care expenses (5) proof of medical coverage which you may have, or may have mailable to you IF you fail to appear for the conference or bring the required documents, the Court may issue a warrant for your arrest. BY THE COURT, George E. Hoffer, President Judge Mail,copieson' Petitioner ",2-23-00 toe' < Respondent Jack How-cu, Esquire Theresa Male, Esquire / Date of Order: February 23. 2000 \ . J. Shadday, Conference Officer YOU HAVE THE RIGHT TO A LAWYER, WHO MAY ATTEND THE CONFERENCE D REPRESENT YOU. 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 MAY GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVE. CARLISLE, PENNSYLVANIA 17013 (717)249-3166 ;., - - - ,;, ;?; ' .? ?: `. ,- _. ??- Theresa Barrett Male Supreme Court #46439 115 Pine Street Harrisburg, PA 17101 (717) 233-3220 Counsel For Defendant COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOMESTIC RELATIONS SECTION NINA LOFTIN, DOCKET Number DR 29,273 Plaintiff PACSES Case Number 435101836 V. JAMES F. KESSLER, III 99-7442 Defendant Other State ID Number DEMAND FOR HEARING Date of Order: March 15, 2000 Mailing Date of Order: March 20, 2000 Amount: $4,108.00 per month For the support of: Plaintiff Reason(s): The hearing officer erred in 1) her calculations of the parties' incomes available for support; 2) entering the recommended order prior to Plaintiff's medical appointment on March 23, 2000, at which she was to secure from her physician confirmation of her ability to work; 3) directing all arrears to be paid by March 31, 2000; and 4) directing all arrears to be paid within eleven (11) days of the mailing date of the order. Party Filing Demand for Hearing: Defendant Signature Service Type M Date Form OE-014 Worker ID 21005 t., PROOF OF SERVICE I hereby certify that I am this day serving a copy of the foregoing document upon the persons and in the manner indicated below which service satisfies the requirements of Pa. R.C.P. 440: Service via first-class mail addressed as follows: John C. Howett, Jr., Esquire Howett, Kissinger & Conley, P.C. P.O. Box 810 Harrisburg, PA 17108 Attorneys for Plaintiff Theresa Barrett Male, Esquire Supreme Court N 46439 115 Pine Street Harrisburg, Pennsylvania 17101 (717) 233-3220 Counsel for Defendant Date: March 27, 2000 LCim O tom) r- Z f s.. A, l IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NINA LOFTIN, Plaintiff V. JAMES F. KESSLER, III, Defendant DRO NO. 29,273 PACSES CASE NO.435 1 0 1 83 6 NO. 1999 - 7442 CIVIL CIVIL ACTION - LAW DIVORCE DEMAND FOR HEARING DE NOVO AND NOW comes Nina Loftin, by and through her attorney, John C. Howett, Jr., Esquire, who demands a hearing de novo from the determination of the Domestic Relations Hearing Officer in the above-captioned matter. Date: ? S/'U u Respectfully submitted, 0 ohn . owett, Jr., Esq ' e OWETT, KISSINGER & CO P.C. 130 Walnut Street P.O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 Counsel for Plaintiff Nina Loftin °?" ?iavr^ a? amp i NINA LOFTIN, PLAINTIFF V. JAMES F. KESSLER, III, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DR 29,273 99-7442CIVIL TERM ORDER OF COURT AND NOW, this day of April, 2000, after reviewing the conference summary that wife has been laid off from her position at AMP, has exhausted her unemployment benefits, and had a hysterectomy in January, 2000, that will require several months of recuperation, the motion of James F. Kessler, III, to stay the order of March 15, 2000, pending resolution of his appeal, IS DENIED. John C. Howett, Jr., Esquire For Plaintiff Theresa Barrett Male, Esquire For Defendant Rickie Shadday, DRO :saa By the. Court, Edgar B. Bayley J. o ^b U.- ';,;U ,. . ?:, ?? Theresa Barrett Male Supreme Court #46439 115 Pine Street Harrisburg, PA 17101 (717) 233-3220 Counsel For Defendant COURT OF COMMO PLEASTOIC RELATIONS SECTION Y, PENNSYLVANIA NINA LOFTIN, Plaintiff V. JAMES F. KESSLER, III Defendant 99-7442 Other State ID Number DEFENDANT'S MOTION TO STAY ALIMONY PENDENTE LITE ORDER 1. Plaintiff Nina Loftin ("Wife") instituted this divorce action on December 13, 1999. 2. Wife's divorce complaint raises claims, inter alia, for alimony pendente life. 3. The parties separated in May 1999. 4. The instant case is unique in that Wife's six-figure earnings history is commensurate with Husband's income levels. 5. During the latter part of the marriage, Wife was employed by AMP, Inc. 6. In 1998, Wife earned in excess of $162,000. 7. Wife's 1999 W-2 reports medicare wages of $240,240.42, which includes a non- qualified pension distribution of $147,300. Wife's local wages were reported at $93,277.76. DOCKET Number DR 29,273 PACSES Case Number 435101836 8. Wife also received $10,218 in unemployment compensation benefits in 1999. 9. For the period ending July 7, 1999, Wife had gross earnings of $93,865.58, which included severance pay of $25,117.00. 10. Following conferences on February 7 and March 15, 2000, the conference officer set Husband's apt obligation at $4,108 per month. A true and correct copy of the recommended order dated March 15, 2000 is attached as Exhibit 1. it. Currently pending before the court is Husband's Demand for Hearing, 12. The March 15 apt order also directed Husband to pay one hundred percent (100%) of the arrears -- $16,432 -- by March 31. 13. Husband's demand for a hearing before the court does not stay the apt order unless this Court so directs. Pa. R.C.P. 1910. 11 (g). Stay of Arrears Payment 14. Husband incorporates by reference the averments set forth in the preceding paragraphs. 15. The March 15 apt order directing Husband to pay 100% of the estimated arrears by March 31 was not mailed until March 20, 2000. 16. Husband has deposited the $16,432 with his counsel. 17. Husband will prevail on his challenge to the underlying apt calculation. 18. Assuming, arguendo, that the Court finds Husband has an apt obligation to Wife, the arrears balance, if any, due after the de novo hearing will be substantially less than $16,432. 2 19. Pennsylvania law provides in relevant part: If support arrearages exist at the time of the entry of the order, the order shall specify all of the following: (1) To whom an arrearage is owed and the amount of the arrearage. (2) The period of time for which the arrearage is calculated. (3) The amount of periodic support to be applied to current support and the amount to be applied to arrearages. (5) A direction that all payments are to be credited to current support obligations first, with any pay- ment in excess to be applied to arrearages. 23 Pa.C.S.A. § 4328 (d). 20. Nothing in the statute supports the directive that Husband pay 100% of the estimated arrears within two weeks of the entry of the order. Wherefore, Defendant requests the court to stay payment of the arrears pending the resolution of his de novo hearing. Stay of Monthly APL Payment 21. Husband incorporates by reference the averments set forth in the preceding paragraphs. 22. The conference officer assigned Wife a net monthly income of only $2,911.52. 23. There is no credible basis on which to support this earnings assessment. 3 24. In fact, as submitted by Husband at the conferences, Wife's income from 1995 through 1998 was as follows: 1995 112,519 1996 155,817 1997 138,101 1998 162,487 25. Based on Wife's historical earnings during the marriage, Husband will prevail on his challenge to the earnings capacity assigned to Wife by the conference officer. 26. Based on Wife's actual earnings in 1999, and her monthly expenses as verified in her income and expense statement, Husband has no liability under the law for apl. Wherefore, Husband requests the Court to stay the apl order pending the resolution of his demand for hearing. Respectfully submitted, a a-c? ®/L Theresa Barrett Male, Esquire Supreme Court k 46439 115 Pine Street Harrisburg, Pennsylvania 17101 (717) 233-3220 Counsel for Defendant Date: April 4, 2000 4 Exhibit 1 NINA 1.01-1'IN, Plaintiff/Petitioner vs. JAMES r. KESSIXR, III Defendant /Respondent DR 29,273 PACSES ID 435101836 f? EMAR 21 2000 IN TIII: COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOMES'T'IC Rr.I.ATIONS SF,C'1'ION CIVIL ACTION - LAW : NO. 99-7442 CIVII,'rI:RM ORDER OF COURT AND NOW, this 15'h day of March, 2000, based upon the Court's determination that Petitioner's monthly net i,icome/eaming capacity is $2,911.52 per month and Respondent's monthly net income/earning capacity is $13,223.07 per month, it is hereby Ordered that the Respondent pay to the Pennsylvania State Collection and Disbursement Unit, $4,108.00 a month payable monthly for alimony pendente lite. First payment due on or before March 31, 2000 in the amount of $16,432.00. Arrears set at $16,432.00. The effective date of the order is December 13, 1999. Due to husband receiving his annual bonus and said bonus being calculated in an annual salary, husband is to make full payment of retroactive arrears on or before March 31, 2000 to his attorney and payment is to be made to wife's attorney. Wife's attorney will then report to the Domestic Relations Section the amount that was paid and credit will be given to APL account. Thereafter, commencing on April 15, 2000, husband is to make semi-monthly payments in the amount of $2,054.00 on or before the 15'h day and last day of each month. Failure to make each payment on time and in full will cause all arrears to become subject to immediate collection by all of the means as provided by 23 Pa.C.S.§ 3703. Further, if the Court finds, after hearing, that the Respondent has willfully failed to comply with this Order, it may declare the Respondent in civil contempt of Court and its discretion make an appropriate Order, including, but not limited to, commitment of the Respondent to prison for a period not to exceed six months. Said money to be turned over by the PA SCDU to: Nina Loftin. Payments must be made by check or money order. All checks and money orders must be made payable to PA SCDU and mailed to: PA SCDU P.O. Box 691 10 Harrisburg, PA 17106-9110 Payments must include the defendant's PACSIiS Member Number or Social Security Number in order to be processed. Do not send cash by mail. Unreimbursed medical expenses that exceed $250.00 annually are to be paid 0% by the respondent and 100% by petitioner. The plaintiff is responsible to pay the first $250.00 annually in unreimbursed medical expenses. Respondent to provide medical insurance coverage. Within thirty (30) days after the entry of this order, the Respondent shall submit written proof that medical insurance coverage has been obtained or that application for coverage has been made. Proof of coverage shall consist, at a minimum, of: 1) the name of the health care coverage provider(s); 2) any applicable identification numbers; 3) any cards evidencing coverage; 4) the address to which claims should be made; 5) a description of any restrictions on usage, such as prior approval for hospital admissions, and the manner of obtaining approval; 6) a copy of the benefit booklet or coverage contract; 7) a description of all deductibles and co-payments; and 8) five copies of any claim forms. This Order shall become final ten days after the mailing of the notice of the entry of the Order to the parties unless either party files a written demand with the Prothonotary for a hearing de novo before the Court. DRO: R. J. Shadday Mailed copies on Petitioner -j 70 to: < Respondent John Howett, Jr., Esquire Theresa Barrett-Male, Esquire BY THE COURT PROOF OF SERVICE I hereby certify that I am this day serving a copy of the foregoing document upon the persons and in the manner indicated below which service satisfies the requirements of Pa. R.C.P. 440: Service via first-class mail addressed as follows: John C. Howett, Jr., Esquire Howett, Kissinger & Conley, P.C. P.O. Box 810 Harrisburg, PA 17108 Attorneys for Plaintiff L 2 44?"6eA&_ Theresa Barrett Male, Esquire Supreme Court # 46439 115 Pine Street Harrisburg, Pennsylvania 17101 (717) 233-3220 Counsel for Defendant Date: April 4, 2000 IN THE COURT OF COMMON DOMESTIC O LAT ONSRLAND COUINTY, PENNSYLVANIA SECTION NINA LOFTIN, ) Plaintiff DOCKET No. DR 29,273 ) PACSES Case No. 435101836 V. ) 99-7442 JAMES F. KESSLER, III, CIVIL ACTION - LAW Defendant ) IT TERMINATE? ORDER OR j < ENTEMOTION PLAINTIFF'S ANSWER VELY STAY AL DEFENDANT)S 1-3. Admitted. 4. Admitted. However, by way of further clarification, said sums constitute payments received by Wife for the post-separation negotiation and execution of a Separation Agreement which, inter alia, included a Non-Competition Agreement, a Confidentiality Agreement, an Intellectual Property Agreement, and a Non-Disparagement and Non-Solicitation Agreement. Said payments did not constitute income and instead, it is Wife's position, constitute a non-marital asset (as it was accrued after separation) of Wife. At most, the Court can consider a reasonable rate of interest return in calculating Wife's income for support purposes, which would make a de minimis difference in the alimony pendente lite award and can clearly be adjusted, if necessary, at the de novo hearing scheduled for August 16, 2000. 5. Denied. It is denied that Wife knew, when she filed for alimony pendente lite, that she would be receiving that sum of money after January 1, 2000. To the contrary, while Wife does not deny executing the Separation Agreement and Release Document attached as Exhibit 3 to Husband's motion and dated June 3, 1999, she never received a copy of said E_i document as her copy was sent to the marital residence where Husband apparently confiscated it. At and after the time this document was executed, Wife not only was undergoing the stress of losing her job, but her only brother had recently died, her husband had driven her out of the marital home, she was going through marriage counseling (while her husband was on a Caribbean sailing vacation with another woman) and, her physical health was deteriorating resulting in her January 2000 surgery. Moreover, although Wife believed that she might receive some type of funds, it was her recollection that they were due to her in the first two weeks of January 2000. When said funds were not paid to her in January 2000, she believed that she would not receive them. 6. Denied. To the contrary, as Wife was not aware at the time that she filed for alimony pendente lite that she would be receiving an asset payment after January 1, 2000, for the reasons stated in paragraph 5 above, she did not fail to disclose this fact when she filed for alimony pendente lite as she was not aware of this fact when she filed for alimony pendente lite. 7. Denied. To the contrary, and for the reasons provided for in paragraph 5 above, Wife was not aware as of the February 7, 2000 and the March 15, 2000 alimony pendente lite conferences that she would receive the asset payments in April 2000. 8. Denied. As Wife was unaware that she would soon receive the asset payments, she was unable to disclose this fact to Husband at either conference as, as of that date, whether or not Wife would receive said funds was not of a factual nature. Moreover, Wife's 1999 W-2 clearly disclosed $147,703 of the $151,395.58 (the difference being interest) and Wife's 1999 W- 2 was disclosed at the March 15 conference. 9. Admitted. 10. Admitted. By way of clarification, Wife did not know anything about the 5147,703 distribution reported on her 1999 W-2 at the March 15, 2000 alimony pendente lite conference as Wife had not yet received said funds. However, when this W-2 entry was raised at the conference, Wife surmised that the S 147,703 was a non-qualified retirement plan distribution from her previous employer as is noted on the hearing officer's conference summary of March 15, 2000 attached hereto marked Exhibit "A" and incorporated by reference herein as if set forth at length. 11. Neither admitted nor denied. After reasonable investigation, Wife is without the knowledge necessary to form a belief as to the truth of the matter asserted. 12. Admitted in part, denied in part. To the contrary, and for the reasons provided in paragraph 5 above, Wife did not know as of June 3, 1999, or prior to that date, that she was to receive that amount, plus interest, in 2000 as part of her Separation Agreement with AMP, Inc. It is admitted that a true and correct copy of the Separation Agreement is attached as Exhibit 3 to Husband's motion; however, said copy was provided by Wife's counsel as soon as it was finally received by Wife after inquiry to Tyco resulted in Tyco finding it and providing it to Wife. Moreover, even locating someone at Tyco to look into this matter was a time-consuming process because both of the people with whom Wife had discussed the agreement were no longer employed by AMP/Tyco. 13. Admitted. By way of further clarification, at the March 15, 2000 alimony pendente lite conference, Wife was in dire financial circumstances. Wife had not at that time received the amount indicated above although it had been provided for on her 1999 W-2. Wife had exhausted her unemployment benefits and had no other cash reserves and had no money to live on, was unemployed and recovering from major surgery that had occurred on January 27, 2000, and thus, unable, as she still is, to return to work (even if she had a job) even on a part-time basis. 14. Neither admitted nor denied. After reasonable investigation, Wife is without the knowledge necessary to form a belief as to the truth of the matter asserted. 15. There is no paragraph 15 in Husband's motion. 16. Neither admitted nor denied. This allegation constitutes a legal conclusion to which no response is required. However, by way of further clarification, and as indicated above, Wife was not aware of her imminent receipt of the asset payments prior to the entry of the alimony pendente lite order. 17. Denied. As Wife was not aware that she would be receiving the asset payments prior to the entry of the alimony pendente lite order, Wife did not fail to disclose this fact as, as of that date, it was not a fact. 18. Neither admitted nor denied. This allegation constitutes a legal conclusion to which no responsive pleading is required. However, by way of further clarification, Wife did not receive the payment until after the alimony pendente lite order had been appealed by Husband. Therefore, as the order was not yet final and was still subject to change, Wife was not under a duty to report a change in circumstances to the Domestic Relations Office as said circumstances would be taken into consideration at the de novo hearing. Moreover, it is clear that $147,703 of the $151,395.58 distribution was known to Husband as it was listed on Wife's 1999 W-2 and was discussed at the March 15, 2000 support conference. At most, the interest portion of the payment (the difference between the principal sum of $147,703 and the payment of $151,395.58) should be considered as income and such amount would not make a material difference in the APL award, and can be adjusted, if necessary, at the de novo hearing on August 16, 2000. 19. Admitted. 20. Denied. To the contrary, a de novo support hearing has been scheduled for August 16, 2000 at 8:45 a.m. 21. Admitted. 22. Neither admitted nor denied as this allegation constitutes a legal conclusion to which no responsive pleading is required. 22. (a) Admitted. 22. (b) Admitted. By way of further clarification, it is averred that due to the work restrictions placed on her by her physicians, that at least for the six-month period following Wife's surgery, which occurred on January 27, 2000, Wife's eaming capacity should be zero. 22. (c) Admitted. 22. (d) Admitted. By way of further clarification, Wife was laid off from her employment from AMP in 1999. Accordingly, in the year 2000 when the alimony pendente lite order was entered into, Wife had no source of earnings. 23. Denied. To the contrary, Wife did not fail to disclose the true state of her financial circumstances prior to the entry of the March 15 alimony pendente lite order. Moreover, even if Wife had known of her future receipt of 3151,395.58, and had disclosed said factor to the hearing officer, it would not have affected the alimony pendente lite order as her receipt of said funds does not constitute income but rather a non-marital separate asset of Wife's. Moreover, the characterization of the funds Wife received can be adequately addressed at the de novo hearing scheduled for August 2000. WHEREFORE, Plaintiff respectfully requests this Honorable Court to deny Defendant's Motion to Terminate, Or, Alternatively, Stay Alimony Pendente Lite Order. Respectfully submitted, Date: _( IG C. Howett, Jr., s uire HOWETT, KISSINGER & CONLEY, P.C. 130 Walnut Street P.O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 Counsel for Plaintiff Nina Loftin 6 VERIFICATION I, Nina Loftin, hereby swear and affirm that the facts contained in the foregoing Plaintiffs Am%w to Defendants hbtion to Terminate, Or, Alternatively, Stay Alunny Perdente Lite Order are true and correct to the best of my knowledge, information and belief and are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. Date: June 16, 2000 I / ?- Nina Loftin In the Court of Common Pleas of CUM1IBERLAND County, Pennsylvania DOMESTIC RELATIONS SECTION PACSES Case Number: 435101836 Docket Number: 99-7442 CIVIL Other State ID Number: Please note: Au cartespandeace must iocrude the PACSES Case Number. NfARCH l5, 2000 SUWARY OF TRIER OF FACT Plaintiff Information Defendant Information NINA LOFTIN JAMES F. KESSLER III Address: 717 MARKET ST BOX 333 LEMOYNE PA 17043-1581-99 Employer: Attorney: Address: 1711 CHARLES ST NEW CUMBERLAND PA 17070-1157-11 Employer: IBM PAYROLL 5267 SIMPSON PERRY RD MECHANICSBURG PA 17055-3515-67 Attorney: HOWETT JOHN C JR. THERESA BARAETP-MALE ? Complaint for Support ? Petition for Modification Filed ® Other Reason for Conference: WIFE FILED FOR SPOUSAL SUPPORT ON 12/8/99 AND APL ON 12/13/99. HUSBAND DENIES LIABILITY FOR SPOUSAL SUPPORT BECAUSE WIFE LEFT THE MARITAL HOME W/OUT LEGAL CAUSE 6 WILL NOT RECONCILE. Dependent(s) Current Order: $4.108.00 / per month Service Type M _ ++ EXHIBIT I A $2,054/s EA I Form CM-022 worker lD 21005 PACSES Case NuMber: 435101836 LOFTIN V. KESSLER Plaintiff Information Defendant Information Current Income: $50,000.00/A GROSS EARNING CAPACITY 185,000.00 + 75,917.10(98 BONUS) $2,911.52/M EC NET _ $250 917/A GROSS SALARY $1.3,223.07/M NET Tax Return: 1999 W2 93 277 76 WAGES + 10,534 IN 1999 W2=186 146.51 UC BENEFITS $240,240.42 MEDICARE WAGES-INCLUDES 147,703 NON QUALIFIED RETIREMENT PLAN Medical Coverage: HUSBAND HAS COVERAGE. WIFE PICKED HUSBAND HAS COVERAGE FOR $90/M FOR UP COBRA THROUGH AMP..SHE IS GOING ADDITIONAL COVERAGE. TO DROP COBRA. Child Care/Tuition: Additional Obligations: LIVE IN MARITAL HOME AND HAS A HOUSE GUEST Other Information: 7/4/88: PARTIES WERE MARRIED 5/14/99: PARTIES SEPARATED AND HUSBAND REMAINS IN THE MARITAL HOME BOTH PARTIES WERE EMPLOYED BY AMP HUSBAND STARTED WITH IBM IN 11/98. WIPE WAS LAID OFF FROM AMP IN 4/99. SHE RECEIVED UC BENEFITS AND A SEVERANCE PAY OF 2S.117.00. UC BE143FITS ARE EXHAUSTED. 1/00 WIPE HAD A HYSTERECTOMY AND CONTENDS THAT RECUPERATION WILL BE 3-b MW.... AND SHE IS UNABLE TO WORK AT THIS TIME. i WIFE WILL BE 51 YRS OF AGE AND HAS A DEGREE IN INDUSTRIAL ENGINEERING. WIFE CONTENDS THAT OUT OF THE LAST FIVE POSITIONS THAT SHE HAS HELD HUSBAND HIRED HER FOR FOUR OF THE POSITIONS. Page 2 of 3 Farm CM-022 Worker ID 21005 Service Type m LOFTIN v. KESSLER PACSES Case Number: 435101836 Other Information (continued): 3/15/00- HUSBAND RECEIVED A BONUS_IN^THE AMO('NT OF 155,911700- ERMEARNSOT?O?PAY Facts Agreed Upon: Facts in Dispute and Contentious with Respect to Facts in Dispute: WIFE'S ABILITY TO WORK AND HER EARNING CAPACITY. Guideline Amount: $ a lzs oo / MONTH DRS Recommended Amount: $ a oa Do iMOIVTH DRS Recommended Order Effective Date: +2/1199 - Parties to be Covered by Recommended Order Amount: WIFE Guideline Deviation: ® YES or ONO Reason for Deviation: MINUS WIFE 18t OF MEDICAL COVERAGE COST Submitted by: R r SHADDAY Date Prepared: MARCH I5, 2000 Page 3 of 3 Form CM-022 Worker 1D 21005 Service Type M IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOMESTIC RELATIONS SECTION NINA LOFTIN, Plaintiff V. JAMES F. KESSLER, III, Defendant DOCKET No. DR 29,273 PACSES Case No. 435101836 99-7442 CIVIL ACTION - LAW CERTIFICATE OF SERVICE I, John C. Howett, Jr., Esquire, counsel for Nina Loftin, Plaintiff in the above-captioned action, hereby certify that a true and correct copy of the foregoing Plaintiffs Answer to Defendant's Motion to Terminate, Or, Alternatively, Stay Alimony Pendente Lite Order was served upon Theresa Barrett Male, Esquire, counsel for Defendant James F. Kessler, III, by depositing same in the United States mail, first class, on June 16, 2000, addressed as follows: Theresa Barrett Male, Esquire 115 Pine Street, 2nd Floor Harrisburg, PA 17101 Date: ACHowetCt, Jr., aEs4u)e--? HOWETT, KISSINGER & CONLEY, P.C. 130 Walnut Street P.O. Box 810 Harrisburg, PA 17108 Telephone: 717-234-2616 Counsel for Plaintiff Nina Loftin NINA LOFTIN, PLAINTIFF V. JAMES F. KESSLER, III, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DR 29,273 99-7442 CIVIL TERM ORDER OF COURT AND NOW, this t' day of June, 2000, a de novo hearing on defendant's appeal from the alimony pendente lite order shall be held on August 16, 2000, at 8:45 a.m., in Courtroom Number 2, Cumberland County Courthouse, Carlisle. By the Court, , Edgar B. Bayley, John C. Howett, Jr., Esquire For Plaintiff Theresa Barrett Male, Esquire For Defendant A2tLi (41)10? Gl -oo Rickie Shadday, DRO (111.5 :saa DO a CUMBE AND IN THE COURT OF COMMON DOMESTIC RELAT ON RL C pCNOUNTY, PENNSYLVANIA NINA LOFTIN, ) Plaintiff ) V. ) JAMES F. KESSLER, III, ) Defendant ) 0 c-3 CD n No. 99 - 7442 En i ° c :L DR No. 29,273 ?, .,-. PACSES Case No. 435I01836? ? ?' < x ~'n CIVIL ACTION - LAW be r Ern N K 'I Irv' tvwuv. avv.....Y. ------ ANSWER TO MOTION TO TERMINATE OR ALTERNATIVELY STAY ALIMONY PENDENTE LITE ORDER" AND NOW comes Plaintiff Nina Loftin, by and through her counsel, Howett, Kissinger & Conley, P.C., who states the following in support of the within Motion to Strike: Defendant's pleading, styled as "Defendant's Reply to Plaintiffs Answer to Motion to Terminate Or, Alternatively, Stay Alimony Pendente Lite Order"is not a proper pleading inasmuch as no "reply" to Plaintiffs Answer is required or authorized by the Rules of Civil Procedural. 2. Defendant's "reply" is not verified by Defendant but rather by counsel for Defendant and contains averments which are not only untrue, but which counsel could have no personal knowledge. 3. The entire argument in Defendant's "reply" is based upon counsel's belief that the Separation Agreement and Release signed by Plaintiff on June 3, 1999 was a document that Plaintiff was familiar with and had seen prior to said date. Counsel basis her argument on the fact that the copy of the agreement attached as her Exhibit 1 bears a date of April 28, 1999. This document was received by Defendant's counsel in advance of a deposition scheduled and held on the afternoon of Monday, June 26, 2000. Counsel prepared and signed this motion as well as the verification to said motion on June 25, 2000, prior to said deposition. 4. At said deposition, a Mr. Walt Sokalsky, who identified said document at the deposition, testified that he obtained said document from Plaintiffs personnel file at AMP. However, he acknowledged that he, himself, did not personally obtain it and later acknowledged that he was not sure where the document came from. 5. Mr. Scott Fair, also deposed on June 26, 2000, and also an employee of AMP/Tyco, produced Plaintiffs personnel file from which Mr. Sokalsky had indicated he had obtained the dated copy of the Separate Agreement and Release. Mr. Fair testified under oath that the personnel file produced at the deposition was a true, correct and accurate copy of Plaintiffs entire personnel file. In said personnel file were two copies of the Separation Agreement and Release, signed by Plaintiff on June 3, 1999, both of which copies did not bear any date on the first page. Neither Mr. Fair nor Mr. Sokalsky were able to state where the dated copy came from. 6. Plaintiff has consistently stated that she did not see said document until the day she signed it on June 3, 1999 in the offices of AMP. 7. Defendant's counsel obviously prepared said motion prior to the deposition but did not tell the undersigned counsel about the pleading nor provide a copy at the deposition but rather placed it in the mail. 8. Defendant's counsel's utilization of the dated copy of the agreement in her "reply" prior to the deposition is highly improper, particularly when the witnesses subpoenaed for the deposition (subpoenaed by Defendant's counsel at this deposition scheduled and conducted by her) established that the only copies of the agreement that existed in Plaintiffs personnel file bear no date in advance of the date that she signed the documents on June 3, 1999. The source of the particular agreement dated April 28 was unknown to the deponents, however, it was conclusively established that said document did not come from Plaintiffs personnel file. Moreover, the fact that both copies of the document in her personnel file were undated is completely consistent with Plaintiffs statement throughout these entire proceedings. 9. This matter is scheduled for a de novo hearing before this Court on August 16, 2000, and it would be grossly unjust to terminate or stay the alimony pendente lite order in advance of an opportunity to present the facts and circumstances to this Court in a record hearing. Moreover, to deny or stay the alimony pendente lite on the basis of Defendant's "reply" which is based entirely upon a document, the authenticity of which is clearly questionable, before the opportunity to present all facts and circumstances at a record hearing, would be equally unjust. WHEREFORE, Plaintiff requests your Honorable Court to strike Defendant's "reply" and to withhold any ruling on Defendant's motion to terminate or stay alimony pendente lite until this matter has been presented to the Court at the de novo hearing on August 16, 2000. Respectfully submitted, Date: (4 'i C Jb C. Howe", Jr., quire HOWETT, KISSINGER & CONLEY, P.C. 130 Walnut Street P.O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 Counsel for Plaintiff Nina Loftin VERIFICATION 1, Nina Loftin, hereby swear and affirm that the facts contained in the foregoing Plaintiff's Motion to Strike are true and correct to the best of my knowledge, information and belief and are made subject to the penalties of 18 Pa.C.S. §4904 relating to unswom falsification to authorities. r Date: 6/27/00/%; Nma Loftin IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOMESTIC RELATIONS SECTION NINA LOFTIN, Plaintiff V. JAMES F. KESSLER, III, Defendant No. 99 - 7442 DR No. 29,273 PACSES Case No. 435101836 CIVIL ACTION - LAW CERTIFICATE OF SERVICE I, John C. Howett, Jr., Esquire, counsel for Nina Loftin, Plaintiff in the above-captioned action, hereby certify that a true and correct copy of the foregoing Plaintiffs Motion to Strike "Defendant's Reply to Plaintiffs Answer to Motion to Terminate or, Alternatively, Stay Alimony Pendente Lite Order was served upon Theresa Barrett Male, Esquire, counsel for Defendant James F. Kessler, III, depositing same in the United States mail, first class, on June 27, 2000, addressed as follows: Theresa Barrett Male, Esquire 115 Pine Street Harrisburg, PA 17101 Date: t: a> bG Jo A.Howett, Jr., quire HOWETT, KISSINGER & CONLEY, P.C. 130 Walnut Street P.O. Box 810 Harrisburg, PA 17108 Telephone: 717-234-2616 Counsel for Plaintiff Nina Loftin Theresa Barrett Male Supreme Court #46439 115 Pine Street Harrisburg, PA 17101 (717) 233-3220 Counsel For Defendant COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, FhNfgb r L v til-wi DOMESTIC RELATIONS SECTION NINA LOFTIN, Plaintiff DOCKET Number DR 29,273 PACSES Case Number 435101836 V. JAMES F. KESSLER, III Defendant 99-7442 Other State ID Number DEFENDANT'S AMENDED REPLY 1. Defendant withdraws paragraph 29 of his reply. Theresa Barrett Male, Esquire Supreme Court # 46439 115 Pine Street Harrisburg, Pennsylvania 17101 (717) 233-3220 Counsel for Defendant Date: June 26, 2000 ,w PROOF OF SERVICE I hereby certify that I am this day serving a copy of the foregoing document upon the persons and in the manner indicated below which service satisfies the requirements of Pa. R.C.P. 440: Service via first-class mail addressed as follows: Michael R. Rundle, Esquire 28 S. Pitt Street Carlisle, PA 17103 DRS Solicitor John C. Howett, Jr., Esquire Howett, Kissinger & Conley, P.C. P.O. Box 810 Harrisburg, PA 17108 Attorneys for Plaintiff Date: June 27, 2000 Lt Theresa Barrett Male, Esquire Supreme Court N 46439 115 Pine Street Harrisburg, Pennsylvania 17101 (717) 233-3220 Counsel for Defendant IV7Fy r ??7 z r Lt; 71 Jl+i 3N }.' my k 2) ? 41 1??, t , ,3?Jf7 ".'ter) ? ? cV Q ?q?. ?i 1 fit ?t'L7Q ) ? ' ?? 'i !tea+MF'`?rait Y?L?[U 2.> U1 ' '" 1F?f? 3$'° 'i l t 1 MA 1 ft )t T1 f f e fi ?`jJ:?,?)y. L J `i"?"w*i 1 fT SIr ' 2 , ;L n!?' #?fir i(??} S6 ? t t r ' Q 7 l Mn?i l3lI't%I, L 0 N I,r„ A n 1? }til`r _ I r Z:0 - %+ 1 Ii wy ' ti-Af4 ,5 I W 3f ?7? p "1 v711 tv4 Af P?.'j.. ;Ly'?7v4•?-c?')?sl t?11 - L It .1 ?'?m1X?E=t 7 I ??fyti It M1 Lj •?, /1a a'2? 5 r11i t k A?? f ?Z 4 S,yti5 t to li. ?' rj r ?it/y l j ft LI i ': r J I t1 k ll • ?p•-?f'r '? LQ !......... ?t1? t le 4 ° s? t n ? d g ca, f{'I i - O j r I 1 +("7J+r / f V{ tilt S L? 1 f 1? F,r?t,. f r '1 M.I t I? lT zIr I ?t k "??,?y L1S r ,?.f 11?''CI`d 11 I ?L) ??5YSyXW^ ,' t4i Y >\1??t1 NINA LOFTIN, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. DR 29,273 JAMES F. KESSLER, III, DEFENDANT 99-7442 CIVIL TERM ORDER OF COURT AND NOW, this --2-0( day of June, 2000, following a review of the pleadings, IT IS ORDERED: (1) Effective this date, defendant shall escrow alimony pendente lite payments directed by the order of March 15, 2000, pending a determination of his appeal from the order of alimony pendente lite scheduled for August 16, 2000, at 8:45 a.m. (2) Defendant shall continue to provide medical coverage for plaintiff. John C. Howett, Jr., Esquire For Plaintiff Theresa Barrett Male, Esquire For Defendant Rickie Shadday, DRO :saa Edgar B. Bayley, J. o,pU C 6 3 ?+I{S r ?? 4= ! ? C. ! G? _? i ? . '?<. la ? )^ _; ` _ ti J t ? ?_ Qr U) _ _ LL. 1. _I ? ?._ ?..? ? -' .._ CJ ORDER/NOTICE TO WITHHOLD INCOME FOR SUPPORT Diu. 99-7442 CIVIL State Commonwealth of Pennsylvania PACSES 435101836 Co./City/Disc, of CUMBERLAND DR 29,273 Date of Order/Notice 07/06/00 Court/Case Number (See Addendum for case summary) Employer/Withholder's Federal EIN Numixr IBM Employer/Withholder's Name PAYROLL Employer/Withholder's Addmss 5267 SIMPSON FERRY RD MECHANICSBURG PA 17055-3515 O Original Onler/Notice O Amended Order/Nolice O Terminate Orcler/Notic[ I RE: ICESSLER, JAMES F. III EmployeeI,) Agoi s Name (Last, First, MO 1 205-34-8965 Employee/Obligor's 5oeia1security Numlxr 1 3530100444 1 Employee/Obligor's Case Idenifer I (See Addendum for plaintiff names assodated with cases on attachment) Custodial Parent's Name (Last, First, MI) See Addendum for dependent names and birth dates associated with cases on attachment. ORDER. INFORMATION: This is an Order/Notice to Withhold Income for Support based upon an order for support from CUMBERLAND County, Commonwealth of Pennsylvania. By law, you are required to deduct these amounts from the above-named employee's/obligor's income until further notice even if the Order/Notice is not issued by your State. $ o. o0 per month in current support $ o. oo per month in past-due support Arrears 12 weeks or greater? Dyes ® no $ o. oo per month in medical support $ o. 00 per month for genetic test costs $ per month in other (specify) fora total of $ 0. oo per month to be forwarded to payee below. You do not have to vary your pay cycle to be in compliance with the support order. If your pay cycle does not match the ordered support payment cycle, use the following to determine how much to withhold: $ o. oo per weekly pay period. $ o. o0 per biweekly pay period (every two weeks). $ o. oo per semimonthly pay period (twice a month). $ o. oo per monthly pay period. REMITTANCE INFORMATION: You must begin withholding no later than the first pay period occurring ten (10) working days after the date of this Order/Notice. Send payment within seven (7) working days of the paydate/date of withholding. You are entitled to deduct a fee to defray the cost of withholding. Refer to the laws governing the work state of your employee for the the allowable amount. The total withheld amount, and your fee, cannot exceed 55% of the employee's/ obligor's aggregate disposable weekly earnings. For the purpose of the limitation on withholding, the following information is needed (See #9 on pg. 2). If remitting by EFT/EDI, please call Pennsylvania State Collections and Disbursement Unit (SCDU) Employer Customer Service at 1-877-676-9580 for instructions. Make Remittance Payable to: PA SCDU Send check to: Pennsylvania SCDU, P.O. Box 69112, Harrisburg, Pa 17106-9112 IN ADDITION, PAYMENTS MUST INCLUDE THE DEFENDANT'S NAMEAND THE PACSES MEMBER ID (shown above as the Employee/Obligor's Case Identifier) OR SOCIAL SECU UMBER IN ORDER TO BE PROCESSED. DO NOT SEND CASH BY MAIL. 5T' ?? '• n rtc9 r BY Hg-COtUR DRO: R.1 Sltadday CAI xC: deferdant Date of Order: July 7, 2000 f Edgar B. Bayley Form EN-028 Service Type m 0al8 No:097MIs4 Worker ID $IATT [,piratim Late 1L31100 ,;a ?. ADDITIONAL INFORMATION TO EMPLOYERS AND OTHER WITHHOLDERS ? If checked you are required to provide a copy of this form to your employee. 1. Priority: Withholding under this Order/Notice has priority over any other legal process under State law against the same income. Federal tax levies in effect before receipt of this order have priority. If there are Federal tax levies in effect please contact the requesting agency listed below. 2. Combining Payments: You can combine withheld amounts from more than one employee/obligor's income in a single payment to each agency requesting withholding. You must, however, separately identify the portion of the single payment that is attributable to each employee/obligor. 3.' -Reportingthe-Paydate/Dattof-Withholding-You-mustreport the-paydaWdateofwithholdingwherrsendingthrMment-The paydate/dateofwithholding-irthrdatconwhich?mountwaswithheld-fmm-th"mployee`vwager. You must comply with the law of the state of the employee's/obligor's principal place of employment with respect to the time periods within which you must implement the withholding order and forward the support payments. 4.' Employee/Obligor with multiple Support Hotdings: [(there is more than one Order/Notice to Withhold Income for Support against this employee/obligor and you are unable to honor all support Order/Notices due to Federal or State withholding limits, you must follow the law of the state of employee's/obligor's principal place of employment. You must honor all Orders/Notices to the greatest extent possible. (See #9 below) 5. Termination Notification: You must promptly notify the Requesting Agency when the employeelobligor is no longer working for you. Please provide the information requested and return a copy of this Order/Notice to the Agency identified below. EMPLOYEE'S/OBLIGOR'S NAME: EMPLOYEE'S CASE IDENTIFIER: _ LAST KNOWN HOME ADDRESS: NEW EMPLOYER'S ADDRESS: _ 6. Lump Sum Payments: You may be required to report and withhold from lump sum payments such as bonuses, commissions, or severance pay. If you have any questions about lump sum payments, contact the person or authority below. 7, Liability: If you fail to withhold income as the Order/Notice directs, you are liable for both the accumulated amount you should have withheld from the employee/obligor's income and other penalties set by Pennsylvania State law. Pennsylvania State law governs unless the obligor is employed in another State, in which case the law of the State in which he or she is employed governs. B. Anti-discrimination: You are subject to a fine determined under State law for discharging an employee/obligor from employment, refusing to employ, or taking disciplinary action against any employee%bligor because ofa support withholding. Pennsylvania State law governs unless the obligor is employed in another State, in which case the law of the State in which he or she is employed governs. 9.. Withholding Limits: You may not withhold more than the lesser of. 1) the amounts allowed by the Federal Consumer Credit Protection Act (15 U.S.C. 41673 (b)1; or 2) the amounts allowed by the State of the employee's/obligor's principal place of employment. The Federal limit applies to the aggregate disposable weekly earnings (ADWE). ADWE is the net income left after making mandatory deductions such as: State, Federal, local taxes; Social Security taxes; and Medicare taxes. 10. *NOTE: If you or your agent are served with a copy of this order in the state that issued the order, you are to follow the law of the state that issued this order with respect to these items. Requesting Agency: If you or your employee/obligor have any questions, contact WAGE ATTACHMENT UNIT DOMESTIC RELATIONS SECTION by telephone at (717) 240-6225 or o BOX 320 CARLISLE PA 17013 by FAX at (7].7) 740-6248 or by Internet Page 2 of 2 Form EN-028 Worker ID $IATT Service Type m Oh10.M.: 09704154 t,pjpllan tVa 1 Lh 1/00 r.. ,rag DATE OF SEPARATION: ADDENDUM Summary of Cases on Attachment Defendant/Obligor: KESSLER, JAMES F. III PACSES Case Number g35101836/R1fp27Tj PACSES Case Number Plaintiff Name Plaintiff Name NINA LOFTIN Docket Attachment Amount Docket Attachment Amount 997492 CIVIL$ 0.00 $ 0.00 Child(en's Name(s); DOB Child(ren)'s Name(s): DOB ? If checked, you are required to enroll the child(ren) identified above in any health insurance coverage available through the employee's/obligor's employment. PACSES Case Number Plaintiff Name Docket Attachment Amount $ 0.00 Childhen)'s Name(s): DOB ? If checked, you are required to enroll the child(ren) identified above in any health insurance coverage available through the employee's/obligor's employment. PACSES Case Number Plaintiff Name Docket Attachment Amount 8 0.00 Child(ren)'s Name(s): DOB ? If checked, you are required to enroll the child(ren) identified above in any health insurance coverage available through the employee's/obligor's employment. ?lf checked, you are required to enroll the child(ren) identified above in any health insurance coverage available through the employee's/obligor's employment. PACSES Case Number Plaintiff Name Docket Attachment Amount $ o.00 Child(ren)'s Name(s): DOB ?If checked,you are required to enroll the child(ren) identified above in any health insurance coverage available through the employee's/obligor's employment. PAGES Case Number Plaintiff Name Docket Attachment Amount $ 0.00 Childhen)'s Name(s): DOB ? If checked, you are required to enroll the child(ren) identified above in any health insurance coverage available through the employee's/obligor's employment. Addendum Form EN-028 Service Type M oxla N..: 097"154 Worker ID $ IATT bpiotion Onc 1213 IMO u N c; C i" _f 'J i:J- NINA LOFTIN, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA V. : DR 29,273 JAMES F. KESSLER, III, DEFENDANT 99-7442 CIVIL TERM ORDER OF COURT AND NOW, this Q'1 day of July, 2000, IT IS ORDERED that a hearing shall be conducted in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania at 3:30 p.m., Wednesday, July 26, 2000, on the within petition for special relief. Pending further order of court plaintiff and defendant are enjoined from disposing of any marital tangible personal property. By the'Court,? John C. Howett, Jr., Esquire For Plaintiff Theresa Barrett Male, Esquire For Defendant Rickie Shadday, DRO Edgar B. Bayley{ J. 4.?. (-f n "Al 7 - 4.00 Rt? S :saa C; ? -'r); .(?`/ :'? Theresa Barrett Male Supreme Court #46439 115 Pine Street Harrisburg, PA 17101 (717) 233-3220 Counsel For Defendant COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NINA LOFTIN Plaintiff v. 99-7442 JAMES F. KESSLER, III Defendant CIVIL ACTION - DIVORCE DEFENDANT'S APPLICATION FOR SPECIAL RELIEF PURSUANT TO RULE 1920.43 1. Plaintiff Nina L. Loftin ("Wife") and Defendant James F. Kessler, III ("Husband") own as joint tenants by the entireties improved real estate located at 1711 Charles Street, New Cumberland, Cumberland County, Pennsylvania ("marital residence"). 2. On May 13, 1999, Wife left the marital residence. 3. After Wife left and refused to return and/or reconcile, Husband changed the locks and the security code. 4. As of February 29, 2000, Wife listed her address as Bunker Hill Apartments, 252 E. Crestwood, Apartment 7, Camp Hill, PA 17011. 5. Since May 13, 1999, Husband has been residing exclusively in the marital residence. 6. Since May 13, 1999, Husband has maintained and paid all expenses associated with the marital residence, without contribution from Wife. 7. At all times relevant to this application, Husband has resided and been domiciled at the marital residence. 8. Husband kept all his personal papers, including those from his counsel and others relating to this divorce action and Husband's defense of Wife's alimony pendente lite claim, in his study at the marital residence. 9. Husband kept most of his pre-marital personalty at the marital residence. 10. Husband maintained in good condition and repair many items of personalty which may be subject to equitable distribution at the marital residence. 11. On or about July 6, 2000, Wife unilaterally, without prior notice, and while Husband was out of state, moved into the marital residence, changed the locks, installed a security system. A true and correct copy of her counsel's July 7, 2000 letter, informing Husband after the fact of wife's actions, is attached as Exhibit 1. 12. On July 7, 2000, upon being notified by his counsel of Wife's actions, Husband immediately left North Carolina, where he has started a new job, and returned to Central Pennsylvania. 13. On July 8, 2000, Husband attempted to gain entry to the marital residence. 14. Husband was accompanied by Private Investigator Thomas E. Taylor, who had notified the New Cumberland Police Department that he and Husband were proceeding to the marital residence. 2 15. Wife refused to allow Husband into the marital residence, and then set off a security alarm, in response to which Officer William G. Weaver, New Cumberland Police Department, arrived on the scene. 16. Officer Weaver advised Wife that she had no legal basis on which to exclude Husband, or to "get a PFA", which Wife threatened to do if Husband entered the house. 17. Husband and Investigator Taylor eventually gained entry into the marital residence, and discovered that Wife had: a. gone through Husband's personal possessions. b. inspected Husband's private papers, including confidential documents, correspondence with his counsel in this divorce action, and information vital to his defense of Wife's alimony pendente lite claim, which this Court will hear on August 16, 2000. C. moved Husband's private papers, which Husband kept in his study, into a closet, on the door of which she had installed a lock to which Husband had no key or access. d. removed his personal property from the rooms in which he had displayed and stored the items. e. put mail addressed to Husband, as well as other items, in trash bags which she put out in front of the house for the trash collection. f. removed Husband's clothing from his closet. 3 18. Wife represented to Husband that she packed some of his personal property in boxes which she placed in the basement and in the garage. 19. Husband was able to secure possession of some of his personal belongings, including his private papers, but had to leave many other items behind. 20. On June 29, 2000, the parties' housekeeper, who continued to work for Husband after Wife left the marital residence, entered the marital residence, cleaned the house, and left after securing the property. 21. On July 7, 2000, the parties' housekeeper returned to the marital residence and discovered that the locks had been changed, and that Wife was in the property. 22. Wife's conduct, including unilaterally moving into the marital residence while Husband is still residing there, violated Husband's right to privacy. 23. Wife's conduct violated Husband's right to the peaceful enjoyment of his residence, separate and apart from Wife. 24. Wife's conduct warrants entry of an order enjoining her from disposing of any property, and allowing Husband immediate access to the property. 25. In further support of this application, Husband has attached and incorporates by reference the June 29, 2000 letter from Wife's counsel explaining Wife's proposal to take possession of the marital residence effective August 1, 2000. See Exhibit 2. Injunctive Relief 26. Husband incorporates by reference the averments of paragraphs 1 through 25. 4 27. Husband has maintained the marital residence in the same condition and appearance as when the parties resided there together. 28. Since moving into the marital residence after June 29, 2000, Wife has moved furniture and other furnishings, and draped the windows which previously were uncovered, in addition to moving, tampering with, and discarding, Husband's personal belongings. 29. Husband's right to continue residing in the marital residence has been compromised irreparably by Wife's conduct. 30. Husband's right to move from the marital residence at such time and under such circumstances as he chose has been compromised irreparably by wife's conduct. 31. Husband's right to pack his clothing, personal belongings, household goods and furnishings, etc. at such times and under such circumstances as he chose has been compromised irreparably by Wife's conduct. 32. As a direct and proximate result of Wife's conduct, including her rifling through his private papers, Husband's ability to defend against Wife's alimony pendente lite and other claims has been compromised irreparably. 33. As a direct and proximate result of Wife's conduct, Husband has suffered emotionally and psychologically. Wherefore, Defendant respectfully requests this Honorable Court enter an order: a. immediately enjoining plaintiff from disposing of any tangible personal property which was located in or on the premises at 1711 Charles Street, New Cumberland, as of June 29, 2000, 5 and any tangible personal property which was in her possession and/or under her control and direction as of June 29, 2000. b. directing Plaintiff immediately to deliver to the office of Defendant's counsel all keys to the marital residence and all security code(s). C. granting Defendant access to the marital residence. d. allowing Defendant to move from the marital residence his personal property, including all household goods and furnishings he acquired prior to the parties' marriage. e. directing Plaintiff to pay timely all the marital residence bills and expenses as of July 1, 2000. Money Damages 34. Husband incorporates by reference the averments of paragraphs 1 through 25. 35. As a direct and proximate result of Wife's conduct, Husband has expended in excess of $3,000 paying the bills and expenses associated with the marital residence for the month of July 2000, including the mortgage payment. 36. As a direct and proximate result of Wife's conduct, Husband incurred fees and expenses over the period July 7 through July 9, 2000, in excess of $5,000, including but not limited to: legal fees, private investigator fees, telephone charges, airline ticket, hotel room, rental car, rental van, gas, meals. 6 37. As a direct and proximate result of Wife's conduct, Husband will continue to incur legal fees and additional out of pocket expenses for professional movers and other third party assistance. Wherefore, Defendant respectfully requests this Honorable Court, after hearing, to enter an order: a. directing Plaintiff to reimburse Defendant all the marital residence bills and expenses he paid for July 2000. b. directing Plaintiff to reimburse Defendant all fees and expenses incurred from July 7 through July 9, 2000. C. directing Plaintiff to reimburse Defendant all fees and expenses he will incur as a result of Plaintiff's unilateral retaking of the marital residence. d. awarding Defendant a sanction against Plaintiff in the amount of $25,000. Respectfully submitted, Theresa Barrett Male, Esquire Supreme Court # 46439 115 Pine Street Harrisburg, Pennsylvania 17101 (717) 233-3220 Counsel for Defendant Date: July 10, 2000 7 Exhibit 1 10I1N C. HOW F.TT.1R. DONALD T. KISSINGER CINDY S. CONLEY DARREN I. HOLST DEBRA M. SHIMP U0 AsAst. FAX & MAIL - 233-062 Theresa B. Male, Esquire 115 Pine Street Harrisburg, PA 17101 Re: Lw Ot7xa a HOWETT, IQSSINGER & CONLEY, P.C. 130WALNETTSTRW POST OFFICE Box 810 Huu ,POv VU 17100 July 7, 2000 JUL 0 7 2000 I..J I FAX (717) 234.502 Loftin v Kessler/Charles St. Proaerty Dear Theresa: As you may recall from our prior discussion and my letter dated June 29, 2000, we propose an agreement whereby the Charles Street property would be transferred from Mr. Kessler and Ms. Loftin jointly to Ms. Loftin separately. This letter is intended to put you on notice that Ms. Loftin has moved back into the Charles Street property now that Mr. Kessler has vacated the premises and moved to North Carolina. We ask that you please notify Mr. Kessler of this development so that any possible confrontation can be avoided. Further, as Ms. Loftin has changed the locks on the residence and installed a security system, if Mr. Kessler desires access to the property, to which he is in entitled, we ask that you please give us advance notice so that Ms. Loftin can make reasonable accommodations. As to our offer, we await your response so that an interim agreement can be prepared. Sincerely, tLett, J Jr. JCH/slc cc: Nina Loftin TOTAL P.02 a c# Exhibit 2 JOHN C. HO W ETi. JR. DONALDT. KISSINGER CINDYS.CONLEY DARREN J. HOIST DEBRA M. SHIMP Legal Assistant Theresa B. Male, Esquire 115 Pine Street Harrisburg, PA 17101 Dear Theresa: LAw OFFIM OF HOWETT, KISSINGER & CONLEY, 130 WALNUT STREET POSTOFFICEBOX 810 HA MSBMQ. PaWSMAM 17108 JUN 3 0 2000 FAX (717) 274-5402 June 29, 2000 Re: Loftin v. Kessler / Transfer of Charles Street Property This is to follow up on our discussions concerning the transfer of the Charles Street property from Kessler and Loftin to Loftin. The property is listed at $249,000 which will net $229,080 after an 8% cost of sale. Nina will take the property on her side of the ledger for $230,000. The approximate mortgage payoff at the date of separation (5/14/99) was $196,500 meaning that we would put $33,500 on Nina's side of the ledger. I propose that we enter an interim agreement that would call for Nina to take possession and responsibility for the mortgage payment and all expenses effective August 1, 2000. That agreement will require Nina to be fully responsible for the expenses, including the mortgage, and will require her to either cause the lender to remove Kessler's name from the mortgage, refinance the mortgage so that Kessler is off the mortgage, or pay off the mortgage. She would commit to immediately make all good faith efforts to have his name removed from the existing mortgage, and upon failure to be able to do so, to attempt to refinance in her own name. If that fails, she will agree to pay off the mortgage and satisfy it in full not later than January 20, 2001. The reason for that date is because of the significant tax impact that would be incurred by her if she were required to liquidate her stock options this year. We are hopeful, however, that she will be able to accomplish a refinancing, and if so, that would be done much sooner. Nina is trying to get in touch with Mr. Kessler by E-mail to see if they can work out directly the division of personal property which will obviously have to be accomplished at this time. Please get back to me if this is satisfactory so that I can prepare an interim agreement. Sincerely, ?--jelmt,. Howett, Jr. , JCH/dms cc: Nina Loftin PROOF OF SERVICE I hereby certify that I am this day serving a copy of the foregoing document upon the persons and in the manner indicated below which service satisfies the requirements of Pa. R.C.P. 440: Service via first-class mail addressed as follows: John C. Howett, Jr., Esquire Howett, Kissinger & Conley, P.C. P.O. Box 810 Harrisburg, PA 17108 I Attorneys for Plaintiff 1 Theresa Barrett Male, Esquire Supreme Court N 46439 115 Pine Street Harrisburg, Pennsylvania 17101 (717) 233-3220 Counsel for Defendant Date: July 10, 2000 ;C .111' n• ? I ? yE yjC C!J l' ? [ . A' 1 ? j yX r? ? 3 r , t r ? ? \ ? K^L y t 3 . J il ? ; ' ? ` 41 ? k ?. I i -. Q / ? ? ? l it i / 1 1 ?• 81? Y3 ?tiJ'y. - a r 3, v 3? t?, ? ? I ? yr IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NINA LOFTIN, Plaintiff/Petitioner ) V. ) NO. 1999-7442 CIVIL JAMES F. KESSLER, III, ) CIVIL ACTION - LAW Defendant/Respondent ) IN DIVORCE RULE TO SHOW CAUSE AND NOW, this day of "u << 2000, upon consideration of i the foregoing Petition for Special Relief Pursuant to 23 Pa.C.S.A. §3323(f) and Pa.R.Civ.P. 1920.43, a Rule is hereby entered upon Defendant/Respondent James F. Kessler, III, to show cause, if any he has, why the relief requested should not be granted. Rule returnable at hearing on the day of 6ze eca{ 2000, at G.m. in Courtroom . , Cumberland County Courthouse, I Courthouse Square, Carlisle, Pennsylvania. OR Rule returnable in writing within days from the date of service hereof. BY THE COURT:/ 1 J. ?? uz? 7.r)q o0 ?5 n ? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NINA LOFTIN, Plaintiff/Petitioner ) V. ) JAMES F. KESSLER, III, ) Defendant/Respondent ) AND NOW, this NO. 1999-7442 CIVIL CIVIL ACTION - LAW IN DIVORCE ORDER OF COURT day of 2000, upon consideration of the foregoing Petition for Special Relief Pursuant to 23 Pa.C.S.A. §3323(f) and Pa.R.Civ.P. 1920.43, it is hereby ORDERED and DECREED that said Petition is GRANTED. Plaintiff is awarded exclusive possession of the Marital Residence, located at 1711 Charles Street, New Cumberland, Cumberland County, Pennsylvania, 17070, pending resolution of the parties' divorce action or until further order of court. BY THE COURT: J. ferssz IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NINA LOFTIN, Plaintiff/Petitioner j v. ) JAMES F. KESSLER, III, ) Defendant/Respondent ) NO. 1999-7442 CIVIL CIVIL ACTION - LAW IN DIVORCE a.R.civ.P. 1920.43 AND NOW, comes Petitioner, Nina Loftin, Plaintiff in the above-captioned action, by and through her counsel, Howett, Kissinger & Conley, P.C., who files this Petition for Special Relief Pursuant to 23 Pa.C.S.A. §3323(f) and Pa.R.Civ.P. 1920.43 and in support thereof avers as follows: 1. Petitioner, Nina Loftin ("Wife"), is an adult individual who currently resides at 1711 Charles Street, New Cumberland, Cumberland County, Pennsylvania, 17070. 2. Respondent, James F. Kessler, III ("Husband"), is an adult individual whose last known residence was 1711 Charles Street, New Cumberland, Cumberland County, Pennsylvania, 17070. It is believed and therefore averred that Husband is now living and working in the state of North Carolina. 3. The parties are husband and wife, having been married on July 4, 1988. 4. On or about December 13, 1999, Wife initiated a divorce action which raised a claim for equitable distribution of the marital estate. 5. Husband and Wife own as joint tenants by the entireties real estate located at 1711 Charles Street, New Cumberland, Cumberland County, Pennsylvania, 17070 ("Marital Residence"). 6. On May l3, 1999, Wife was forced to vacate the Marital Residence. Between March and December 1999, Wife moved several times. In December 1999, Wife moved into an apartment in Camp Hill, Cumberland County, Pennsylvania. All accommodations were significantly deficient compared to the standard of living enjoyed by the parties during the marriage. 8. After Wife departed the Marital Residence, Husband changed the locks and refused to provide Wife access to the residence. He also refused Wife's repeated requests to take possession of the residence. 9. Around April 2000, Wife sought to move into an accommodation which more closely approximated the standard of living enjoyed during marriage, a standard Husband continued to enjoy while living in the Marital Residence. 10. Wife offered to rent the Marital Residence from Husband for fair market value, which Husband rejected on or about May 9, 2000. Consequently, Wife sought to purchase a new residence. 11. In May or June 2000, Husband vacated the Marital Residence and moved in with his paramour in North Carolina and accepted a position as Chief Executive Officer and President of Saffron Technology. 12. At or around the time of Husband's exodus from Pennsylvania, he put the Marital Residence up for sale at a listing price of $249,000. Husband executed all documents necessary to sell the residence, and, by letter dated June 9, 2000, his counsel sought Wife's cooperation with the sale. A copy of the letter is attached hereto as Exhibit A. 13. Wife offered to purchase the Marital Residence at the net listing price Husband established, and counsel for the parties discussed the possibility of a sale; this discussion was memorialized by letter dated June 29, 2000, a copy of which is attached hereto as Exhibit B. 14. On July 5, 2000, upon confirming that Husband had vacated the Marital Residence, Wife rightfully returned to the residence. Thereafter, she immediately transferred all utilities and services to her name to the extent possible, packed up Husband's remaining belongings and installed new locks and a security system. 15. Counsel for Wife notified Husband's counsel by letter dated July 7, 2000 that Wife had returned to the residence and requested that Husband notify Wife in advance if he desired access to the residence. The letter reiterated Wife's offer to purchase the residence. A copy of the letter is attached hereto as Exhibit C. 16. Immediately upon receipt of the notification, Husband returned to Pennsylvania and forced entry into the Marital Residence under the pretense of wanting to remove non-marital personal property. In fact, he removed martial property of extensive value. 17. On or about July 10, 2000, Husband filed a Petition for Special Relief seeking to enjoin Wife from disposing of tangible personal property located at the Marital Residence; to force Wife to turn over to Husband all keys and security codes to the residence and provide Husband with access; to permit him to remove his claimed non-marital personal property; and to require Wife to pay all household expenses as of July 1, 2000. The court scheduled a hearing on the petition and enjoined both parties from disposing of any marital property pending further order of court. 18. Section 33230 of the Divorce Code provides the court with the equitable power to issue injunctions or other orders which are necessary to protect the interests of the parties or to effectuate equity and justice. 19. Additionally, Rule 1920.43 of the Pennsylvania Rules of Civil Procedure permits the court to grant special relief in divorce actions. 20. Finally, the court may award the right to reside in the marital residence, during the pendency of the action or otherwise, pursuant to Section 3502(c) of the Divorce Code. 21. Wife will be severely prejudiced if she is not awarded exclusive possession during the pendency of the divorce action. She has moved out of her apartment, and, in justifiable reliance upon Husband's representation to sell her the Marital Residence, she has ceased looking for another residence. 22. Conversely, Husband will not be prejudiced by being excluded from the residence. He has already vacated the premises, listed the house for sale, moved to North Carolina and accepted a position with Saffron Technology. WHEREFORE, Petitioner respectfully requests your Honorable Court grant her petition and enter an Order awarding her exclusive possession of the Marital Residence pending the resolution of the parties' divorce action and any other relief the court deems appropriate. Respectfully submitted, Date: _ 1 t fb . oet Jr., , E 'squire HOWETT, KISSINGER & CONLEY, P.C. 130 Walnut Street P.O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 Counsel for Plaintiff Nina Loftin VERIFICATION I, Nina Loftin, hereby swear and affirm that the facts contained in the foregoing Petition for Special Relief are true and correct to the best of my knowledge, information and belief and are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. Date: 7/21/00 _f?i^L7 /1G"mar/ Nina Loftin / i 10 THERESA BARRETr MALE COUNSELOR AT LAW LILNLSA BARRLU MALE SUSAN C. ArrLLBY rARALLGL John C. Howett, Jr., Esquire Howett, Kissinger & Conley, P.C. P.O. Box 810 Harrisburg, PA 17108 Re: Loftin v. Kessler Dear Jack: June 9, 2000 7Y oL/ (717)233.3220 FAx(717)233.6862 Per our conversation on May 23, 2000, I directed my client to have Becky Yost, the realtor who sold the Charles Street home to our clients, prepare a listing contract and related documents. Enclosed are the following: 1. the listing contract exclusive right to sell real property; 2. the statement of estimated sellers' costs; 3. the mortgage payoff authorization; 4, the seller's property disclosure statement; 5. the designated agency notice; and 6. the comparables. Please have your client initial and execute all documents and return them ASAP to Ms. Yost. Sincerely, TBM/sca Enclosures cc: James F. Kessler, III (w/o enc) Theresa Barrett Male EXHIBIT S T i I IS PINE STREET HARMSMIRC. PLNNSYL%ANIA 1 7101 Lbw O/FIOLs OF 0 JOIIN C. HOW ETT. 1R DONALD r. KISSINGER CINDY S. CONLEY DARRE:N 1. HOLST DEBRA M. SHIMP Legal Assistant Theresa B. Male. Esquire 115 Pine Street Harrisburg. PA 17101 Dear Theresa: HOWETC, KISSINGER & CONLEY, P.C. 130 WALNUT STREET POST OFFICE BOX $10 H?RRIsuL9c. Pt%%snvv m. 17103 (717)234 2616 FAX (717) 2346402 June 29. 2000 Re: Loftin v Kessler / Transfer of Charles Street Property This is to follow tip on our discussions concemin_ the transfer of the Charles Street property from Kessler and Loftin to Loftin. The property is listed at 5349,000 which will net 5239,030 after an 30/0 cost of sale. Nina will take the property on her side of the ledger for 5330,000. The approximate mortgage payoff at the date of separation (5/14/99) was $196,500 meaning that we would put 533,500 on Nina's side of the ledger. I propose that we enter an interim agreement that would call for Nina to take possession and responsibility for the mortgage payment and all expenses effective August 1. 2000. That agreement will require Nina to be fully responsible for the expenses, including the mortgage. and will require her to either cause the lender to remove Kessler's name from the mortgage, refinance the mortgage so that Kessler is off the mortgage, or pay off the mortgage. She would commit to immediately make all good faith efforts to have his name removed from the existing mortgage, and upon failure to be able to do so, to attempt to refinance in her own name. If that fails, she will agree to pay off the mortgage and satisfy it in full not later than January 20, 2001. The reason for that date is because of the significant tax impact that would be incurred by her if she were required to liquidate her stock options this year. We are hopeful, however, that she will be able to accomplish a refinancing, and if so, that would be done much sooner. Nina is trying to get in touch with Mr. Kessler by E-mail to see if they can work out directly the division of personal property which will obviously have to be accomplished at this time. Please get back to me if this is satisfactory so that I can prepare an interim agreement. Sincerely, -iohn . Howett, Jr. JCH/dms cc: Nina Loftin LAW OFFICES Of HOWETT, KISSINGER & CONLEY, P.C. 130 WALNUT STREET POST OFFICE BO. Si 7108 Huluseullc, Pvasn JOIINC. HOWFTT.JR. DONALD 'r. KISSINGER CINDY S. CONLEY DARRrST DEBRA hl. SHIMP Legal Afsislaet FA,X & MAIL - 233-6862 Theresa B. Male, Esquire 115 Pine Street Harrisburg, PA 17101 July 7, 2000 (717) 234.2616 FAY (717) 274.5302 Re: Lo rfn v. Kessler/ Charles St. Pro er' Dear Theresa: As you may recall from our prior discussion and my letter dated June 29, 2000, we ertwould be transferred from Mr. This letter is intended to put you on propose an agreement whereby the Charles Street prop now that bfr. Kessler has Kessler and N is. Loftin jointly to Ms. Loftin separately. lease notify ivfr. Kessler of l'orth Carl ask th you notice that his. Loftin has moved back into the InCharles a. W Street property vacated the premises and moved to confrontation cariebe avoided. p this development so that any possible Further, as Ms. Loftin has changed the locks on the residence and installed a security system, if Mr. Kessler desires access to the property, to which he is in entitled, we ask that you please give us advance notice so that Ms. Loftin can make reasonable accommodations pared. As to our offer, we await your response so that an interim agreement can be p Sincerely, tt4. J C. Howett, Jr. JCWSlc cc: Nina Loftin EXHIBIT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NINA LOFTIN, Plaintiff/Petitioner ) V. ) NO. 1999-7442 CIVIL JAMES F. KESSLER, III, ) CIVIL ACTION- LAW Defendant/Respondent ) IN DIVORCE CERTIFICATE OF SERVICE I, John C. Howett, Jr., Esquire, counsel for Nina Loftin, Plaintiff/Petitioner in the above- captioned action, hereby certify that a true and correct copy of the foregoing Petition for Special Relief Pursuant to 23 Pa.C.S.A. §3323(f) and Pa.R.Civ.P. 1920.43 was served upon Theresa Barrett Male, Esquire, counsel for Defendant Respondent James F. Kessler, III, by depositing same in the United States mail, first class, on July 21, 2000, addressed as follows: Theresa Barrett Male, Esquire 115 Pine Street Second Floor Harrisburg, PA 17101 Date: 111 11cg., C Jo . Howett, Jr., Esq c HOWETT, KISSINGER & CONLEY, P.C. 130 Walnut Street P.O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 Counsel for Plaintiff Nina Loftin NINA LOFTIN, PLAINTIFF V. JAMES F. KESSLER, III, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DR 29,273 99-7442 CIVIL TERM n uORDER OF COURT AND NOW, this 2K day of July, 2000, upon agreement of counsel, the APL hearing now scheduled for August 16, 2000, is cancelled and rescheduled to Thursday, September 7, 2000, at 1:30 p.m., in Courtroom By the Co Edgar John C. Howett, Jr., Esquire For Plaintiff Theresa Barrett Male, Esquire For Defendant \ R S Rickie Shadday, DRO :saa ? •I? ? ?4 J• ???.)yI ?i ? ?',ri 1.. II l ??? _ LAw OsnC of HOWETT, KISSINGER & CONLEY, P.C. 130 WALNUT STREET POSTOFFICEBOX 810 H. ssmo,Pv nVAm 17108 JOHN C. HOWETT, IR. DONALD r. KISSINGER CINDY S. CONLEY DARREN 1. HOLST DEBRA M. SHIMP Legal Assistant July 21, 2000 VIA FAX & MAIL Theresa B. Male, Esquire 115 Pine Street Harrisburg, PA 17101 Re: Loftin v. Kessler Dear Theresa: (717)274.2616 FAX (717) 274.5402 This will confirm my exchanges of telephone calls between me and Suzie in your office concerning the Loftin matter. The hearing scheduled before Judge Bayley for Wednesday, July 26 at 3:30 p.m. will not be held at that time and instead the preliminary matters will be heard on Wednesday, August 16 at 8:45 a.m. which was the time originally set for the APL hearing. The APL hearing will now be rescheduled for Thursday, September 7 at 1:30 p.m. For the same reasons that we have to move the July 26 hearing, I need an extension on the answer to the one motion which had a seven-day return date. I will assume that you will not object to us filing our answer to that petition on Wednesday, August 2 instead of Wednesday, July 26, which was when the original seven days would have expired. Thank you for your cooperation. I attempted to reach Sharon in Judge Bayley's chambers, but had to leave a voice mail and told her that I would copy her on this letter confirming our agreement. Sincerely, CAD *CHowett, Jr. JCH/dms cc: Sharon c/o The Honorable Edgar B. Bayley (via fax & mail) Nina Loftin Theresa Barrett Male Supreme Court #46439 115 Pine Street Harrisburg, PA 17101 (717) 233-3220 Counsel For Defendant COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOMESTIC RELATIONS SECTION NINA LOFTIN, Plaintiff V. DOCKET Number DR 29,273 PACSES Case Number 435101836 99-7442 JAMES F. KESSLER, III Defendant Other State ID Number ORDER OF COURT AND NOW, August -4 ? --, 2000, upon agreement of counsel, the APL hearing now scheduled for September 7, 2000, is cancelled and rescheduled to Wednesday, October 11, 2000 at 1:30 p.m. in Courtroom Number 2. John C. Howett, Jr., Esquire For Plaintiff Theresa Barrett Male, Esquire For Defendant Rickie Shadday, DRO BY THE COURT: Edgar B. Bayley, V J. ,U r'I \? i. Y .I I ? f 1 1 F Y' .?.a . 7 p. _ t N + p[ Q 0 ?3J i CCC ? p a + J Yv : t r:. i 17 n v / YT , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOMESTIC RELATIONS SECTION NINA LOFTIN, ) Plaintiff ) DOCKET NO. DR 29,273 PACSES CASE NO. 4351001836 V. 1 NO. 99-7442 JAMES F. KESSLER, III, ) CIVIL ACTION - LAW Defendant ) PLAINTIFF'S ANSWER TO DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S APL CLAIM OR ALTERNATIVELY TO DIRECT PLAINTIFF TO SUBMIT TO A VOCATIONAL ASSESSMENT Admitted. 2. Admitted. 3. Admitted with clarification. The court originally set a de novo hearing on Plaintiff's claim for alimony pendente lite for August 16, 2000 at 8:45 a.m. However, by Order dated July 24, 2000, that hearing has been rescheduled for September 7, 2000 at 1:30 p.m. 4. Neither admitted nor denied. Plaintiff lacks personal knowledge to ascertain Defendant's legal basis for challenging the court's interim APL order. Thus, to the extent that an answer is required, it is denied, and strict proof thereof is demanded at the hearing. Admitted. 6. Admitted. Admitted. 8. Admitted. By way of further response, without an order of court compelling submission to a vocational assessment, Plaintiff is under no legal obligation to avail herself to Dr. Anderson. 9. Neither admitted nor denied. Plaintiff is without knowledge as to why Defendant hired Dr. Anderson. 10. Denied. The vocational assessment is not required for the upcoming APL hearing, nor is Plaintiff required to voluntarily submit to a vocational assessment. 11. Neither admitted nor denied. Plaintiff is without sufficient knowledge to ascertain Defendant's legal argument for the upcoming hearing. However, to the extent that a response is required, it is denied. Plaintiff had a hysterectomy on or about January 26, 2000, and, as a result, her doctor has informed her that she cannot work until August 1, 2000 at the earliest. 12. Admitted. 13. Admitted. By way of further response, Plaintiff is under no obligation to disclose such information. 14. Denied. Defendant's inability to depose Plaintiff's gynecologist in no way impacts upon his ability to defend against Plaintiff's APL claim at the September 7 hearing. 15. Neither admitted nor denied. Counsel is without knowledge to ascertain the amount of legal fees Husband has incurred in connection with the matters addressed in Defendant's motion, and, therefore, strict proof thereof is demanded. However, there is no legal basis for hold Plaintiff liable for Defendant's legal fees; hence, Plaintiff denies that she is liable for such fees. WHEREFORE, Plaintiff respectfully requests the Court dismiss Defendant's Motion to Dismiss Plaintiff's APL Claim, or, Alternatively, to Direct Plaintiff to Submit to a Vocational Assessment. Respectfully submitted, Date: ?Alloo k rli J fif C. Hewett, Jr.; $squire H WETT, KISSINGER & CONLEY, P.C. 130 Walnut Street P.O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 Counsel for Plaintiff, Nina Loftin VERIFICATION 1, Nina Loftin, hereby swear and affirm that the facts contained in the foregoing Plaintiff's Answer to Defendant's Motion are true and correct to the best of my knowledge, information and belief and are made subject to the penalties of 18 Pa.C.S. §4904 relating to unswom falsification to authorities. Date: July 31, 2000 /?y i ? K ?'? Nina Loftin IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOMESTIC RELATIONS SECTION NINA LOFTIN, ) Plaintiff ) DOCKET NO. DR 29,273 PACSES CASE NO. 4351001836 V. ) NO. 99-7442 JAMES F. KESSLER, III, ) CIVIL ACTION -LAW Defendant CERTIFICATE OF SERVICE I, John C. Howett, Jr., Esquire, counsel for Nina Loftin, Plaintiff in the above-captioned action, hereby certify that a true and correct copy of Plaintiff's Answer to Defendant's Motion to Dismiss Plaintiff's APL Claim, or, Alternatively, to Direct Plaintiff to Submit to a Vocational Assessment was served upon Theresa B. Male, Esquire, counsel for Defendant James F. Kessler, III, by depositing same in the United States mail, first class, on July 31, 2000, addressed as follows: Theresa B. Male, Esquire 115 Pine Street Harrisburg, PA 17101 Date: bC J C. Howett, Jr., E quire HOWETT, KISSINGER Sc CONLEY, P.C. 130 Walnut Street P.O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 Counsel for Plaintiff, Nina Loftin NINA LOFTIN, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. DR 29,273 JAMES F. KESSLER, III, DEFENDANT 99-7442 CIVIL TERM ORDER OF COURT AND NOW, this r day of July, 2000, a Rule is entered against Nina Loftin to show cause why the relief sought in defendant's motion, should not be granted. Rule returnable seven (7) days after service with a copy of any answer forwarded to these chambers. By the Court, Edgar B: Baylely, J. John C. Howett, Jr., Esquire /t_ _ ,n For Plaintiff l.aP. Theresa Barrett Male, Esquire 7-18 For Defendant R) Rickie Shadday, DRO ?I? :saa 14 Theresa Barrett Male Supreme Court #46439 115 Pine Street Harrisburg, PA 17101 (717) 233-3220 Counsel For Defendant COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOMESTIC RELATIONS SECTION NINA LOFTIN, Plaintiff V. JAMES F. KESSLER, III Defendant DOCKET Number DR 29,273 PACSES Case Number 435101836 99-7442 Other State ID Number DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S APL CLAIM, OR, ALTERNATIVELY, TO DIRECT PLAINTIFF TO SUBMIT TO A VOCATIONAL ASSESSMENT 1. Plaintiff Nina Loftin ("Wife") filed her complaint in divorce, which included a claim for alimony pendente lite, on December 13, 1999. 2. On March 15, 2000, the court entered a recommended order directing Defendant James F. Kessler, III ("Husband") to pay to Wife apl in the amount of $4,108 per month. 3. The Court has set the de novo hearing for August 16, 2000 at 8:45 a.m. 4. Husband's challenge to the apl order is grounded in part on his position that Wife has an earnings capacity commensurate with her earnings history. 5. In the years preceding the parties' separation, Wife had reported annual earnings as follows: 1998 - $162,487; 1997 - $138,101; 1996 - $155,817; 1995 - $112,519. 6. On May 23, 2000, Husband's counsel advised Wife's counsel that Husband retained Paul A. Anderson, Ed.D. to assess Wife's earnings capacity. 7. Husband's counsel confirmed this by letter dated June 12, 2000, which also requested that Wife immediately contact Dr. Anderson to schedule her appointments. A true and correct copy of the letter is attached as Exhibit 1. 8. As of July 10, 2000, Wife has failed to contact Dr. Anderson. 9. Husband intended to present Dr. Anderson's testimony at the August 16 hearing. 10. Wife's failure to contact Dr. Anderson has compromised Husband's ability to present his case at trial. 11. Husband's challenge to the apl order is grounded in part on his position that Wife physically is able to work, despite her claim that she cannot work because she had a hysterectomy on or about January 26, 2000. 12. On June 12, 2000 Husband's counsel advised Wife's counsel that Husband intended to take the deposition of Wife's gynecologist for use at trial, and requested the name, address and telephone number of the physician so that deposition dates could be set. Exhibit 1. 13. As of July 10, 2000, Wife has not provided her physician's name, address and telephone number. 14. Wife's failure to provide the information necessary for Husband's counsel to schedule the deposition of her physician has compromised Husband's ability to defend against Wife's apl claim. 2 15. As of July 10, 2000, Husband has incurred counsel fees in the amount of $705.00 [4.7 hours x $150 per hour] in connection with the vocational assessment and the deposition issues described supra, including the filing of this motion. Wherefore, Defendant respectfully requests the Court to dismiss Plaintiff's claim for alimony pendente lite with prejudice, and direct Plaintiff to reimburse Defendant all monies paid pursuant to the March 15, 2000 apl order. Alternatively, Defendant respectfully requests the Court to enter an order: a. directing Plaintiff to submit to a vocational assessment by Paul A. Anderson, Ed.D. b. directing Plaintiff to provide Defendant's counsel with the name, address and telephone number of her gynecologist for the purpose of scheduling the deposition of the gynecologist. C. directing Plaintiff to reimburse Defendant counsel fees in the amount of $705.00, plus additional fees he incurs in connection with this motion. Respectfully submitted, ?/ L axj-,?A ell__ Theresa Barrett Male, Esquire Supreme Court N 46439 115 Pine Street Harrisburg, Pennsylvania 17101 (717) 233-3220 Counsel for Defendant Date: July 10, 2000 3 E: TIIIMLSA BAULTI MAIL SUSAN C. APru"V PAMLECAL THERESA BARRETT MALE OUNSI ION Al IAW 115 hNI Slkltl 11Akk111111k1., PtNN11IVAN1A 17101 June 12, 2000 John C. Howett, Jr., Esquire Howett, Kissinger & Conley, P.C. P.O. Box 810 Harrisburg, PA 17108 Re: Loftin v. Kessler Dear Jack: (717) 2333220 FAX (717) 2336862 As I advised you on May 23, 1 have retained Dr. Paul Anderson to assess Ms. Loftin's earnings capacity. Please direct your client to contact Dr. Anderson's office within the next few days to schedule her first appointment: Paul A. Anderson, Ed.D. 2418 North 2nd Street Harrisburg, PA 17110 (717) 233-7779 I also intend to take for use at trial the deposition of Ms. Loftin's gynecologist. Please provide his name, address and telephone number so that we can coordinate dates for the deposition. After Ms. Loftin received the $16,432 arrears payment, you advised that she was abandoning her "substandard" housing for a more suitable residence. Please confirm her current address, and provide a copy of the lease on her property. Your client's e-mail of June 2 advises that she is purchasing a house. Please immediately confirm the following: I. location of property. 2. purchase price. 3. identity of seller(s). 4. identity of purchaser(s). 5. settlement date. 6. amount of down payment. 7. source of downpayment. 8. amount to be financed. 9. identity of lender. John C. Howett, Jr., Esq. Page 2 June 12, 2000 I also want a fully executed copy of her sales contract, and her 1999 1040, as filed, with all schedules. To ensure that Ms. Loftin understands that she must produce this information timely, I have enclosed the original and two (2) copies of a request for production of documents, her response to which is due July 12, 2000. Please call me immediately if you have any questions. Sincerely, gere:Barrett 1&- -- /Male TBM/sca Enclosures cc: James F. Kessler, III (w/enc) PROOF OF SERVICE I hereby certify that I am this day serving a copy of the foregoing document upon the persons and in the manner indicated below which service satisfies the requirements of Pa. R.C.P. 440: Service via first-class mail addressed as follows: Michael R. Rundle, Esquire 28 S. Pitt Street Carlisle, PA 17103 DRS Solicitor John C. Howett, Jr., Esquire Howett, Kissinger & Conley, P.C. P.O. Box 810 Harrisburg, PA 17108 Attorneys for Plaintiff Theresa Barrett Male, Esquire Supreme Court N 46439 115 Pine Street Harrisburg, Pennsylvania 17101 (717) 233-3220 Counsel for Defendant Date: July 10, 2000 X r v ' t ? 1 A ,? ,a ?4?,)? l4 YID C i \J ? 1 1J? ; ? ?? tt r t' r ! .. l °E• i f C ?i?8 lrrl ? ?I h. I avx ? U1? CV - ?: r 1 { 1' V ?? l 1'i 1 x 1. x F SASi ) OJ yl V rJ 1 ? Y, l El ?? rO r T .?g(7?13 9 ? I IL . t ' i ?6Y (? IJ +y. ?5 J. I ? ?1 r ? it ?j't>) ,v v I 1 t .'? v f l i px'?.Y?} v7A+ YY? k' j S Y t r -f - r r + ) r'f S Fy^if?Cr TF l.r L 1 y ?, '?? pit j l yi `. lrtw, 1 I t ' {'? Z, t r? I W J v ti ? rF J )Jp l.n' ?dlY ?F ?Z t' l? ? ????'F)li ?t1. ';? _ '.fig r. A rr i'ti?s ?)t ?aV ' .h J 1 F t II(TNi,?y,r' to Qt t t?y'? r ? >r^r ? ? r _ ? ? t t , h'? ,.r3CdC+?3 a, -. ?. CI yyyW??? N ,' P,.i 'h t ? t 1 %/ T IY Lf)i ' it ) , )i} rtip? ??t.t J1 W ill I 3?d rr?»tw f r LZ. /f, 'il r??n' { to r,it f ''CG ?" c 4 4_ A,(N j?? tip 4? i,r.?t J ,j r?'.IS Ir /?? 'r?ttry*?, ? ,)eye,, .dYtC. J 1 r ? ' Y J '?YI?? v{ ,y kl.'2JJafV ?(4 u gKJi JG ?(p2 f Si? t \ t L'w?2?+L,?`` r Ad4'd 1 r r Ti.;? ?Y?jfIF Y yr„ ;<J+??•N •'„1 , F?LN1ll?''{°? ? r l t ?) ( 9 V.? h J ? / G ?'SI?Ir? ' l xtn . ??e,(? rrtr'. 1 1 yr gv? ? F4 tl v M? gt 4t ? 1 J , ? y ) 1?J? 'l?'Nt) _ 14?:e? 444 + r ,?.. rel?ti1 l , ?ls?l j'ilY i? r Theresa Barrett Male Supreme Court #46439 115 Pine Street Harrisburg, PA 17101 (717) 233-3220 Counsel For Defendant COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NINA LOFTIN Plaintiff V. JAMES F. KESSLER, III Defendant 99-7442 CIVIL ACTION - DIVORCE ORDER AND NOW, August , 2000, upon agreement of counsel, the hearing on the parties' respective special relief applications now scheduled for August 16, 2000 is cancelled and rescheduled to Thursday, September 7, 2000 at 1:30 p.m. in Courtroom Number 2. John C. Howett, Jr., Esquire For Plaintiff Theresa Barrett Male, Esquire For Defendant Edgar B. Bayley, C 00 BY THE COURT: UO f:! ?^ t E i ri 2? f, ? I' i h9 r i a ?c Y F' a+ t ? f t .w + r ? ?S t a t ?? 1 y ? J t 4{ 1 ? W b 36'L Q Z I n. ? O 4r^ it t ? _ t ?? 17 gg yy ' ;Iy p > .- ff?`u t ?i 4, - F f ?fi r i .rye: i 1111' -. 77 7. Theresa Barrett Male Supreme Court #46439 I IS Pine Street Harrisburg, PA 17101 ' (717) 233.3220 Counsel For Defendant COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ?; NINA LOFTIN Plaintiff V. JAMES F. KESSLER, III Defendant To the Prothontary: 99-7442 CIVIL ACTION - DIVORCE PRAECIPE Please withdraw defendant's motion to compel plaintiff to answer request for production of documents. Theresa Barrett Male, Esquire Supreme Court # 46439 115 Pine Street Harrisburg, Pennsylvania 17101 (717) 233-3220 Counsel for Defendant Date: August 31, 2000 illill? LAW OFFICES OF HOWETT, KISSINGER & CONLEY, P.C. 130 WALNUT STREET POST OFFICE BOX 810 HAMISOMO, PENNSYLVANIA 17105 JOI IN c. IIOWETr, JR. DONALD T. KISSINGER CINDY S. CONLEY DARREN J. 1101ST DEBRA M. SHIMP Legal Assislwt August 24, 2000 The Honorable Edgar B. Bayley CUMBERLAND COUNTY COURTHOUSE 1 Courthouse Square Carlisle, PA 17013 Re: Loftin v. Kessler lVo. 99-7442/Divorce Dear Judge Bayley: (717)234.2616 FAX (717) 234.5402 In reference to the enclosed August 22, 2000 Order of Court, please be advised that our Answer to Defendant's Request for Production of Documents was forwarded to Defendant on the same date that her Motion to Compel was filed with the Court, hence this matter is moot. If relevant, there is an understandable reason for the late response. Sincerely, o n C. Howett, Jr. JCH/dms Enclosure cc: Theresa B. Malc, Esquire (w/cncl) Nina Loftin (w/cncl) AUG 2 1 2000 r) Theresa Barrett Male Supreme Court #46439 115 Pine Street Harrisburg, PA 17101 (717) 733-3220 Counsel For Defendant COFT COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NINA LOFTIN Plaintiff V. 99-7442 JAMES F. KESSLER, III Defendant : CIVIL ACTION - DIVORCE ORDER OF COURT AND NOW, August -.2-Q_, 2000, upon consideration of Defendant's Motion to Compel Plaintiff to Answer Request for Production of Documents, the Court ISSUES a rule on Plaintiff to show cause, if she has any, why the Court should not grant the relief requested. Rule returnable ten (10) days after the date of service -1o 6F-Zz ? -1,C) C4 MILSV BY THE COURT: t Edgar B. ayley, J, TUE COPY FROM RECORD In TWR mony wheraot, I lira unto sat my hand and the scat of said Cour at Carlisle, Pa. ay of rothonotary Theresa Barrett Male Supreme Court #46439 115 Pine Street Harrisburg, PA 17101 (717) 233-3220 Counsel For Defendant UJURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NINA LOFTIN Plaintiff V. JAMES F. KESSLER, III Defendant To the Prothontary: 99-7442 CIVIL ACTION - DIVORCE PRAECIPE Please withdraw defendant's motion to compel plaintiff to answer request for production of documents. Theresa Barrett Male, Esquire Supreme Court # 46439 115 Pine Street Harrisburg, Pennsylvania 17101 (717) 233-3220 Counsel for Defendant Date: August 31, 2000 '`5w v c? t.: i-A y?M NINA LOFTIN, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW JAMES F. KESSLER, III, Defendant NO. 99-7442 CIVIL TERM ORDRR OF cnUgT AND NOW, this 11th day of October, 2000, it is ordered that argument shall be in chambers at 8:45 a.m., Monday, October 23, 2000. At that time respective counsel shall have wife's 1999 income tax return for admission as an exhibit and husband's 1999 income tax return for admission as an exhibit in order to close the record. By the Edgar B John C. Howett, Jr., Esquire For Plaintiff Theresa B. Male, Esquire For Defendant Sheriff prs , J. xL- 0 r `5. V , \O' ?p IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NINA LOFTIN, Plaintiff V. JAMES F. KESSLER, 111, Defendant NO. DR 29,273 NO. 1999 - 7442 CIVIL TERM CIVIL ACTION - LAW PETITION FOR CONTEMPT AND RETROACTIVE MODIFICATION OF ALIMONY PENDENTE LITE ORDER AND NOW, conics Plaintiff, Nina Loftin, by and through her counsel, Howett, Kissinger & Conley, P.C., who files this Petition for Contempt and Retroactive Modification of Alimony Pendente Lite Order and in support thereof avers the following: 1. Petitioner is Nina Loftin, Plaintiff in the above-captioned action. 2. Respondent is James F. Kessler, III, Defendant in the above-captioned action. 3. On or about December 13, 1999, Petitioner filed with the Court of Common Pleas of Cumberland County a Complaint for Divorce raising, intej- cilia, a claim for alimony pendenie lire. 4. On February 4, 2000 and March 15, 2000, a conference was conducted at the Cumberland County Domestic Relations Office to address Petitioner's alimony pendente lite claim. 5. The Court of Common Pleas of Cumberland County issued an order dated March 15, 2000 which required Respondent to pay the sum of $4,108 per month in alimony Pendeate lite effective December 13, 1999. Said order also required Respondent to pay the sum ?IIIItt111?Rt nan® of $16,432 in arrears on or before March 31, 2000. A copy of said order is attached hereto as Exhibit "A" and is incorporated herein by reference. 6. On or about March 27, 2000, Respondent filed his demand for a hearing de novo before the Court. Petitioner filed a cross-demand on or about March 31, 2000. Pursuant to an Order of Court dated June 29, 2000, Defendant was required to escrow all alimony pendente lite payments directed by the March 15, 2000 order pending resolution of the de novo alimony penclente lite hearing before the Court. 8. Although Petitioner has not received a single alimony pemlente lite payment since the entry of the Court's June 29, 2000 order, Respondent is under the continuing obligation to make the required monthly alimony pendente lite payments into an escrow account. 9. Insofar as Respondent is obligated to make alimony penclente lite payments into an escrow account, he is under a continuing obligation to obey the March 15, 2000 Order of Court and the Rules of Civil Procedure which govern support matters. 10. Pursuant to Rule 1910.17(b) of the Rules of Civil Procedure, Respondent is under the continuing obligation to inform the Domestic Relations Office in writing or by personal appearance and all other parties in writing within seven days of any material change in circumstances relevant to the level of support, including, but not limited to, changes in income or employment. 11. On June 16, 2000, Respondent terminated his employment with IBM in Mechanicsburg, Pennsylvania and commenced his current position as president and CEO of Saffron Technology in Morrisville, North Carolina. 12. By virtue of this change in employment, Respondent received a significant increase in income. 13. Respondent has willfully failed to notify either the Domestic Relations Office or Petitioner of this material change in circumstances for the last four months. In fact, Petitioner only learned of this change in employment on October 9, 2000 when she received Respondent's answers to her Interrogatories. 14. Rule 1910.17(b) permits the Court to adjudge a party in contempt for his or her willful failure to inform the Domestic Relations Office of such information. 15. Furthermore, when confronted with a party's willful failure to disclose information pertinent to an existing alimony pendente lite case, this Court can order a retroactive modification of an order for alimony pendente lite. WHEREFORE, Petitioner asks this Honorable Court to adjudge Respondent in contempt of the March 15, 2000 Order of Court for his willful failure to inform the Domestic Relations Office of his change in employment and, furthermore, to modify the alimony pendente lite order retroactively to June 16, 2000, the date Respondent commenced his present employment. Respectfully submitted, Date: l l OD IL Jbhri C. Howett, Jr., Esquire HOWETT, KISSINGER & CONLEY, P.C. 130 Walnut Street P.O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 Counsel for Plaintiff Nina Loftin VERIFICATION I, Nina Loftin, hereby swear and affirm that the facts contained in the foregoing Petition for Contempt and Retroactive Modification of Alimony Pendente Lite Order are true and correct to the best of my knowledge, information and belief and are made subject to the penalties of 18 Pa.C.S. §4904 relating to unswom falsification to authorities. Date: 16-11-00 ' _/ e Nina Loftin / m f Y'•' r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NINA LOFTIN, ) Plaintiff ) NO. DR 29,273 NO. 1999 - 7442 CIVIL TERM V. ) JAMES F. KESSLER, III, ) CIVIL ACTION - LAW Defendant ) CERTIFICATE OF SERVICE 1, John C. Howett, Jr., Esquire, counsel for Nina Loftin, Plaintiff in the above-captioned action, hereby certify that a true and correct copy of the foregoing Petition for Contempt and Retroactive Modification of Alimony Pendente Lite Order was served upon Theresa B. Male, Esquire, counsel for Defendant James F. Kessler, III, by hand-delivery on October 11, 2000. Date: (0 / t1 60 Jdbn-V.. Howett, Jr., Es(ltiire HOWETT, KISSNGER & CONLEY, P.C. 130 Walnut Street P.O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 Counsel for Plaintiff Nina Loftin DR 29,273 PACSES ID 435101836 =Jrj NINA LOITIN, : IN T[ IF COURTOI' COMMON PLEAS Plaintiff/Petitioner : CUMBERLAND COUNTY, PENNSYLVANIA vs. : DOMESTIC RELATIONS SECTION JAMES F. KESSLER, HI CIVIL ACTION -LAW Defendant/Respondent : NO. 99-7442 CIVIL TERM ORDER OF COURT AND NO%V, this 15" day of March, 2000, based upon the Court's determination that Petitioner's monthly net income/earning capacity is $2,911.52 per mouth and Respondent's monthly net income/earning capacity is $13,223.07 per month, it is hereby Ordered that the Respondent pay to the Pennsylvania State Collection and Disbursement Unit, $4,108.00 a month payable monthly for alimony pendente lite. First payment due on or before March 31, 2000 in the amount of $16,432.00. Arrears set at $16,432.00. The effective date of the order is December 13, 1999. Due to husband receiving his annual bonus and said bonus being calculated in an annual salary, husband is to make full payment of retroactive arrears on or before March 31, 2000 to his attorney and payment is to be made to wife's attorney. Wife's attomey will then report to the Domestic Relations Section the amount that was paid and credit will be given to APL account. Thereafter, commencing on April 15, 2000, husband is to make semi-monthly payments in the amount of $2,054.00 on or before the 150' day and last day of each month. Failure to make each payment on time and in full will cause all arrears to become subject to immediate collection by all of the means as provided by 23 Pa.C.S.§ 3703. Further, if the Court finds, after hearing, that the Respondent has willfully failed to comply with this Order, it may declare the Respondent in civil contempt of Court and its discretion make an appropriate Order, including, but not limited to, commitment of the Respondent to prison for a period not to exceed six months. Said money to be turned over by the PA SCDU to: Nina Loftin. Payments must be made by check or money order. All checks and money orders must be made payable to PA SCDU and mailed to: PA SCDU P.O. Box 69110 Harrisburg, PA 17106-9110 Payments must include the defendant's PACSES bfember Number or Social Security Number in order to be processed. Do not send cash by mail. PLAINTIFF'S r A EXHIBIT Unreimbursed medical expenses that exceed $250.00 annually are to be paid 0% by the respondent and 100% by petitioner. The plaintiffis responsible to pay the first $250.00 annually in unreimbursed medical expenses. Respondent to provide medical insurance coverage. Within thirty (JO) days after the entry of this order, the Respondent shall submit written proof that medical insurance coverage has been obtained or that application for coverage has been made. Proof of coverage shall consist, at a minimum, of 1) the name of the health care coverage provider(s); 2) any applicable identification numbers; J) any cards evidencing coverage; 4) the address to which claims should be made; 5) a description of any restrictions on usage, such as prior approval for hospital admissions, and the manner of obtaining approval; 6) a copy of the benefit booklet or coverage contract; 7) a description of all deductibles and co-payments; and 8) five copies of any claim forms. This Order shall become final ten days after the mailing of the notice of the entry of the Order to the parties unless either party files a written demand with the Prothonotary for a hearing de novo before the Court. DRO: R. J. Shaddav Mailed copies on Petitioner .J %(J to: < Respondent John Howett, Jr., Esquire Theresa Barrett-Male, Esquire BY THE cnr rRT NINA LOFTIN , Plaintiff/Pel if ioner VS. JAMES F. KESSLER, III, Defendent/Rcspondcn t IN THE COURT OF CONINION PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - DIVORCE NO. 99-7442 CIVIL TERM IN DIVORCE DR# 29,273 Pacseshi 4351111836 NOTICE OF RIGHT TO REQUEST A HEARING The parties are hereby advised that they hate until bfarch 30.2000 to request a hearing do rim, before the Court. File request in person or mail to: Office of the Prothonotary I Courthouse Square Carlisle. PA 17013 NINA LOFTIN IN THE COURT OF COMMON PLEAS OF PlaintilUPctitioncr CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION -DIVORCE NO. 99-7442 CIVIL TERM JAMES F. KESSLER, III, IN DIVORCE Dcfcndant/Rcspondent DR# 29,273 Pncscs# 435101836 DEMAND FOR HEARING DATE OF ORDER: March 15. 2000 AMOUNT: 4.1118.110/month FOR: Alimom• Pendente Lite REASON(S): PARTY FILING DEMAND FOR HEARING: Signature Date In the Court of Common Pleas of CUMBERLAND County, Pennsylvania DOMESTIC RELATIONS SECTION PACSES Case Number: 435101836 Docket Number: 99-7442 CIVIL Other State ID Number: Please note: All carrespoodence mint include the PACSES Case Number. MARCH 15, 2000 SUMMARY OF TRIER OF FA T Plaintiff Information NINA LOFTIN Address: 717 MARKET ST BOX 333 LEMOYNE PA 17043-1581-99 Employer: Attorney: HOWETT JOHN C JR. Defendant Information JAMES F. KESSLER III Address: 1711 CHARLES ST NEW CUMBERLAND PA 17070-1157-11 Employer: IBM PAYROLL 5267 SIMPSON FERRY RD MECHANICSBURG PA 17055-3515-67 Attorney: THERESA BARRETT-MALE ? Complaint for Support ? Petition for Modification Filed ® Other Reason for Conference: WIFE FILED FOR SPOUSAL SUPPORT ON 12/8/99 AND APL ON 12/13/99. HUSBAND DENIES LIABILITY FOR SPOUSAL SUPPORT BECAUSE WIFE LEFT THE MARITAL HOME W/OUT LEGAL CAUSE & WILL NOT RECONCILE. Dependent(s) Current Order: $4,1o8.oo / per month Service Type M $2,054/S Farm CM-022 Worker lD 21005 PACSES Case Nuinber: 435101836 LOFTIN V. KESSLER Defendant information Plaintiff Information Current Income: $50,000.00/A GROSS EARNING CAPACITY 185,000.00 + 75,917.10(98 BONUS) _ $2 911 52/M EC NET $260.9171A GROSS SALARY $13,223.07/M NET Tax Return: 1999 W2=93,277.76 WAGES + 10,534 IN 1999 W2=186,146.51 UC BENEFITS $240,240.42 MEDICARE WAGES-INCLUDES 147,703 NON QUALIFIED RETIREMENT PLAN Medical Coverage: HUSBAND HAS COVERAGE. WIFE PICKED HUSBAND HAS COVERAGE FOR $90/M FOR UP COBRA THROUGH AMP..SHE IS GOING ADDITIONAL COVERAGE. TO DROP COBRA. Child Care/Tuition: Additional Obligations: LIVE IN MARITAL HOME AND HAS A HOUSE GUEST Other Information: 7/4/88: PARTIES WERE MARRIED 5/14/99: PARTIES SEPARATED AND HUSBAND REMAINS IN THE MARITAL HOME BOTH PARTIES WERE EMPLOYED SY AMP HUSBAND STARTED WITH IBM IN 11/98. WIFE _ WAS LAID OFF FROM AMP IN 4/99 SHE RECEIVED UC BENEFITS AND A SEVERANCE PAY OF 25 117.00. UC BENEFITS ARE EXHAUSTED. 1/00 WIFE HAD A HYSTERECTOMY AND CONTENDS THAT RECUPERATION WILL BE 3-6 MONTHS AND SHE IS UNABLE TO WORK AT THIS TIME. WIFE WILL BE 51 YRS OF AGE AND HAS A DEGREE IN INDUSTRIAL ENGINEERING. WIFE CONTENDS THAT OUT OF THE LAST FIVE POSITIONS THAT SHE HAS HELD HUSBAND HIRED HER FOR FOUR OF THE POSITIONS. Page 2 of 3 Form CM-022 Service Type M Worker ID 21005 LOFTIN V- KESSLER PACSES Case Number: 435101836 Other Information (continued): 3/15/00: HUSBAND RECEIVED A BONUS IN THE AMOUNT OF 75, 917 00 DRO RECOMMENDS THAT RETROACTIVE ARREARS BE PAID IN FULL BECAUSE HUSBAND HAS THE MEANS TO PAY Facts Agreed Upon: Facts in Dispute and Contentions with Respect to Facts in Dispute: WIFE'S ABILITY TO WORK AND HER EARNING CAPACITY Guideline Amount: $ 4,125.00 / MONTH DRS Recommended Amount: $ 4.108.00 1MONTFI DRS Recommended Order Effective Date: 12/13/99 Parties to be Covered by Recommended Order Amount: Guideline Deviation: ® YES or ONO Reason for Deviation: MINUS WIFE (18t) OF MEDICAL COVERAGE COST Submitted by: R. 1. SHADDAY Date Prepared: MARCH 15, 2000 Page 3 of 3 Fonn CM-022 Service Type M Worker lD 21005 r7 Phone: (717) 240-6225 County, Pennsylvania Far: (717) 240-6248 Plaintiff Name: NINA LOFTIN Defendant Name: JAMES F. KESSLER III Docket Number: 99-7442 CIVIL PACSES Case Number: 435101836 Other State ID Number: Please note: Au correspondence must include the PACSE.S Case Number. Spousal Support Calculation - with Dependent Children (30% for line 7) -without Dependent Children (40% for line 7) 1. Obligor's Monthly Net 2. Less Obligee's Monthly 3. Difference 4. Less Child Obligation for Current 5. Less All Other Support 6. Income Available for Spousal 7. Multiply by 30% or 40% 8. Amount of Monthly Spousal $ 13,223.07 -S72 Z $ 2.911.52- /8'71 $ 10,311.55 $ 0.00 $ 0.00 $ 10.311.55 40t 1 $ 4,124.62 / /3//) - Summary L,/?? Date: MARCH 15, 2000 Monthly obligation amount selected: $ 4,124.62 Payment frequency: MONTHLY Obligation amount: $ 4,124.62 Deviation reason: l5%//f ,',,, In the Court of Common Pleas of CUMBERLAND DOMESTIC RELATIONS SECTION P.O. BOX 320, CARLISLE, PA. 17013 Service Type M Form OE-523 Worker ID 21005 DOMESTIC RELATIONS SECTION P.O. BOX 320 CARLISLE PA 17013 HOWETT JOHN C JR. 130 WALNUT ST PO BOX 810 HARRISBURG PA 17108-0810-10 Generic Address Sheet Form CM-521 Service Type M. Worker ID 21205 NINA LOFTIN, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA V. DR 29,273 JAMES F. KESSLER, III, DEFENDANT 99_7442 CIVIL TERM ORDER OF COURT AND NOW, this 16 _.day of August, 2000, upon review of the pleadings, the Rule entered against Nina Loftin on July 17, 2000, IS MADE ABSOLUTE to the extent that Nina Loftin shall submit to a vocational assessment by Paul A. Anderson, Ed.D., as shall be arranged by defendant's counsel. The Rule with respect to the request for an order directing plaintiff to provide defendant's counsel with the name of her gynecologist for the purposes of scheduling a deposition of the gynecologist, IS DISMISSED. The Rule with respect to defendant's demand for counsel fees for the purposes in connection with this motion, IS DENIED. By the Court, Edgar B. B-'ley, J. \ John C. Howett, Jr., Esquire d For Plaintiff Theresa Barrett Male, Esquire J For Defendant ? „(1 R.J. Shadday, DRO Q? :saa Q0 ;111f ? 7 1 no: 51 y / trLS ow F64ND 73 In the Court of Common Pleas of CUMBERLAND County, Pennsylvania DOMESTIC RELATIONS SECTION NINA LOFTIN ) Docket Number 99-7442 CIVIL Plaintiff ) VS. ) PACSES Case Number 435101836 /D29,273 JAMES F. KESSLER III ) Defendant ) Other State ID Number ORDER AND NOW, to wit, on this 8TH DAY OF JANUARY, 2001 IT IS HEREBY ORDERED that the support order in this case be O Vacated or OSuspended or ® Terminated without prejudice or O Terminated and Vacated, effective DECEMBER 21, 2000 , due to: THE PARTIES MARITAL SETTLEMENT AGREEMENT OF DECEMBER 21, 2000. PURSUANT TO: THE PARTIES' AGREEMENT, THERE IS NO BALANCE DUE.-'` DRO: RJ Sbadday xc: plaintiff defenJant Ciniy Conley, Esquire Theresa ,tale, Esquire Service Type M BY THE T: .. 1 atl Wgar B. Bayley JUDGE Form OE-504 WOrkerlD 21005 p .A?k.c1-Q ('? Cox C, Pinn ? V r V'' allc 2120 o Theresa Barrett Male Supreme Court #46439 115 Pine Street Harrisburg, PA 17101 (717) 233-3220 Counsel For Defendant COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NINA LOFTIN Plaintiff V. 99-7442 JAMES F. KESSLER, III Defendant CIVIL ACTION - DIVORCE ORDER OF COURT AND NOW, August v2? 2000, upon consideration of Defendant's Motion to Compel Plaintiff to Answer Request for Production of Documents, the Court ISSUES a rule on Plaintiff to show cause, if she has any, why the Court should not grant the relief requested. Rule returnable ten (1?0,) days after the date of service VABY THE COURT: PIL3160 C'opi'es rnS.iLL.. 44? M.,19 ta7yl ._ _ r•.-- . =rte Min"Well all Theresa Barrett Male Supreme Court #46439 115 Pine Street Harrisburg, PA 17101 0717) 233-3220 Counsel For Defendant COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NINA LOFTIN Plaintiff v 99-7442 JAMES F. KESSLER, III Defendant CIVIL ACTION - DIVORCE ORDER OF COURT AND NOW, August , 2000, the Court ORDERS Plaintiff to provide full, complete and accurate answers to Defendant's Request for Production of Documents served on June 12, 2000 within seven (7) days of the date of this order. The Court further ORDERS Plaintiff to pay directly to Defendant's counsel within fourteen (14) days of the date of this order the sum of $350.00 towards Defendant's counsel fees incurred in connection with this matter. BY THE COURT: Edgar B. Bayley, J. Theresa Barrett Male Supreme Court #46439 115 Pine Street Harrisburg, PA 17101 (717) 233-3220 Counsel For Defendant COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NINA LOFTIN Plaintiff v. 99-7442 JAMES F. KESSLER, III Defendant CIVIL ACTION - DIVORCE DEFENDANT'S MOTION TO COMPEL PLAINTIFF TO ANSWER REQUEST FOR PRODUCTION OF DOCUMENTS 1. On June 12, 2000, Defendant served the original and two copies of a request for production of documents on Plaintiff. A true and correct copy of the service letter with the request is attached as Exhibit 1. 2. Plaintiff did not answer the request for production of documents within the thirty- day period required under the discovery rules, i.e., July 12, 2000. 3. Plaintiff did not object to Defendant's discovery request. 4. Plaintiff did not seek an extension of time within which to answer Defendant's discovery request. 5. Plaintiff did not object to Defendant's discovery request. 6. By letter dated August 4, 2000, Defendant requested that Plaintiff provide her answers to discovery in order to avoid a motion to compel. A true and correct copy of the letter is attached as Exhibit 2. 7. To date, Plaintiff has failed to comply with Defendant's discovery request. 8. As a consequence of Plaintiffs failure to answer Defendant's discovery request, Defendant has incurred legal fees in the amount of $350.00. 9. This Court has the authority to order Plaintiff to comply with Defendant's discovery request, and to award Defendant his legal fees incurred in connection with this motion. See Pa. R.C.P. 4019. Wherefore, Defendant requests the Court to order Plaintiff to answer his request for production of documents served on June 12, 2000 and to award Defendant counsel fees in the amount of $350.00 plus additional legal fees if further court intervention is necessary. Theresa Barrett Male, Esquire Supreme Court N 46439 115 Pine Street Harrisburg, Pennsylvania 17101 (717) 233-3220 Counsel for Defendant Date: August 16, 2000 2 Exhibit 1 THERESA BARRETT MALE U)I INSLI OR At 1 AW 1 15 RN1 SINAI rI"X6A BAXXL? MAIL I'1AL11NIRIXl., PLNNSYIVANIA 17101 (717)233.3220 SUSAN C. APPLLMY FAX (717) 233.6862 PAXALLWL June 12, 2000 John C. Howelt, Jr., Esquire Howett, Kissinger & Conley, P.C. P.O. Box 810 Harrisburg, PA 17108 Re: Loftin v. Kessler Dear Jack: As I advised you on May 23, 1 have retained Dr. Paul Anderson to assess Ms. Loftin's earnings capacity. Please direct your client to contact Dr. Anderson's office within the next few days to schedule her first appointment: Paul A. Anderson, Ed.D. 2418 North 2nd Street Harrisburg, PA 17110 (717) 233-7779 I also intend to take for use at trial the deposition of Ms. Loftin's gynecologist. Please provide his name, address and telephone number so that we can coordinate dates for the deposition. After Ms. Loftin received the $16,432 arrears payment, you advised that she was abandoning her "substandard" housing for a more suitable residence. Please confirm her current address, and provide a copy of the lease on her property. Your client's e-mail of June 2 advises that she is purchasing a house. Please immediately confirm the following: I. location of property. 2. purchase price. 3. identity of seller(s). 4. identity of purchaser(s). 5. settlement date. 6. amount of down payment. 7. source of downpayment. 8. amount to be financed. 9. identity of lender. 1 John C. Howett, Jr., Esq. Page 2 June 12, 2000 I also want a fully executed copy of her sales contract, and her 1999 1040, as filed, with all schedules. To ensure that Ms. Loftin understands that she must produce this information timely, I have enclosed the original and two (2) copies of a request for production of documents, her response to which is due July 12, 2000. Please call me immediately if you have any questions. Sincerely, c?-- /heresa Barrett Male TBM/sca Enclosures cc: James F. Kessler, III (w/enc) Therese Barrett Male Supreme Court #46439 115 Pine Street Harrisburg, PA 17101 (717) 233-3220 Counsel For Defendant COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NINA LOFTIN Plaintiff V. JAMES F. KESSLER, III Defendant 99-7442 CIVIL ACTION - DIVORCE DEFENDANT'S REQUEST FOR PRODUCTION OF DOCUMENTS ADDRESSED TO PLAINTIFF Pursuant to Rule of Civil Procedure 4009.11, Plaintiff is directed to produce at the office of Defendant's counsel within thirty (30) days the following documents: 1. Your 1040 for 1999 with all schedules and supporting documents. 2. 1099s for 1999 with all schedules and supporting documents for any entity in which you are or were entitled to nonemployee compensation during that year. 3. All contracts, including purchase and sales agreements, to which you are a party and/or a signatory. 4. All lease agreements to which you are a party and/or a signatory. 5. All financial statements which you prepared or had prepared since April 30, 1999. 6. All applications for credit which you prepared or had prepared since April 30, 1999. 7. Statements for your bank accounts, including checking, savings and money market, as of the following dates: a. April 30, 1999 b. September 30, 1999 C. December 31, 1999 d. January 30, 2000 e. May 30, 2000 8. Statements from all stock brokerage houses and other entities in which you have assets invested as of the following dates: a. April 30, 1999 b. September 30, 1999 C. December 31, 1999 d. January 30, 2000 e. May 30, 2000 9. Statements for your Individual Retirement Accounts and Certificates of Deposit as of the following dates: a. April 30, 1999 b. September 30, 1999 C. December 31, 1999 2 d. January 30, 2000 e. May 30, 2000 10. End-of-year statements confirming outstanding balances on all loans and lease agreements in your name. Theresa Barrett Male, Esquire Supreme Court tl 46439 115 Pine Street Harrisburg, Pennsylvania 17101 (717) 233-3220 Counsel For Defendant Date: June 12, 2000 3 l PROOF OF SERVICE I hereby certify that I am this day serving a copy of the foregoing document upon the persons and in the manner indicated below which service satisfies the requirements of Pa. R.C.P. 440: Service via first-class mail addressed as follows: John C. Howett, Jr., Esquire Howell, Kissinger & Conley, P.C. P.O. Box 810 Harrisburg, PA 17108 Attorneys for Plaintiff Theresa Barrett Male, Esquire Supreme Court X 46439 115 Pine Street Harrisburg, Pennsylvania 17101 (717) 233-3220 Counsel for Defendant Date: June 12, 2000 k PIA Exhibit 2 1 THERESA BARRETr MALE COUNSELOR AT LAW THERESA BAIUILTT MALE 11 S PINL STREET HARR15BTIRG. PENNSYLVANIA 17101 (717)233-3220 TAx(717) 233.6862 SUSAN C. APPLEBY PARALEGAL John C. Howett, Jr., Esquire Howett, Kissinger & Conley, P.C. P.O. Box 810 Harrisburg, PA 17108 Re: Loftin v. Kessler August 4, 2000 Dear Jack: Pursuant to my service letter dated June 12, 2000, your client's response to my request for production of documents was due July 12. Please forward her complete answers immediately so that I do not have to file a motion to compel. Sincerely, Theresa Barrett Male TBM/sca cc: James F. Kessler, III Via Fax - Hard Copy to Follow rF IN SM I SS I ON i2EPC :T ?f ?E 9E AUG-04-00 13:33 1D:23 36862 ) TB MALE ESQ START TIME AUG-04-00 13:32 TELEPHONE NUMBER 2345402 NAME(lo NUMBER) 023454022 TRANSMII$SION MODE EMMR RESOLUTY ON STD PAGES TRANSMITTED II 002 MAILBOX I OFF SECURITY' OFF INFORMATION CODE OK REDIALING TIMES 00 MACHINE ENGAGED ( 00.29 JOB NUMBER i 559 THIS; TRANSMISSION IS COMPLETED. LAST SUCCESSFUL PAGE 002 ) J PROOF OF SERVICE I hereby certify that I am this day serving a copy of the foregoing document upon the persons and in the manner indicated below which service satisfies the requirements of Pa. R.C.P. 440: Service via first-class mail addressed as follows: John C. Howett, Jr., Esquire Howett, Kissinger & Conley, P.C. P.O. Box 810 Harrisburg, PA 17108 Attorneys for Plaintiff 1-.4 ?1/??A(e_ Theresa Barrett Male, Esquire Supreme Court # 46439 115 Pine Street Harrisburg, Pennsylvania 17101 (717) 233-3220 Counsel for Defendant Date: August 16, 2000 ? ? ? }/ l ', ?1 , . i ' ' , ? t i r; i l' i ? '. ?' i. i> r ? t ?; ? '+4 :1' ? `: -i v ? ' ? : r '? ? .