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HomeMy WebLinkAbout03-4288 BRENDA WHITE, 6303 Stanford Court Mechanicsburg, P A 17055 Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. No. 03 - q :J. <11 ROBERT CHRISTOPHER VICK, 2101 James Street Syracuse,~ 13206 Defendant JURY TRIAL DEMANDED NOTICE TO: DEFENDANT NAMED HEREIN: You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defense or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you, and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights importance to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, P A 17013 717-249-3166 NOTICIA Le han demandado a usted en 1a corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plaza a1 partir de la fecha de la demanda y la natificacion. Usted debe presentar una apariencia escrita 0 en persona 0 por abogado y archivar en la corte en forma escrita sus defensas 0 sus objeciones alas demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso 0 notificacion y por cualquier queja 0 alivio que es pedido en la peticion de demanda. Usted puede perder dinero 0 sus propiedades 0 otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENE ABOGADO OSI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VA Y A EN PERSONA OLLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJOPARA A VERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, P A 17013 717-249-3166 y-. ew W. Barbin , ity. I.D. #43571 ANDREW W. BARBIN, P.e. 5020 Ritter Road, Suite 109 Mechanicsburg, P A 17055 (717) 506-4670 Counsel for Plaintiff Brenda White DATED: September 2, 2003 2 BRENDA WHITE, 6303 Stanford Court Mechanicsburg, P A 17055 Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. No. oj-I_(2-f?~ ROBERT CHRISTOPHER VICK, 2101 James Street Syracuse, NY 13206 Defendant JURY TRIAL DEMANDED COMPLAINT AND Now, this 2nd day of September, 2003, comes the Plaintiff, Brenda White, by and through her attorney, Andrew W. Barbin, P.C. and brings this Complaint against Robert Christopher Vick, on the grounds set forth below for the damages hereinafter demanded. PARTIES 1. Plaintiff, Brenda White (White), is a resident of the Cumberland County. 2. Defendant, Robert Christopher Vick (Vick) is a citizen of New York and former resident of Cumberland County. JURISDICTION AND VENUE 3. The dispute relates to a contract executed in Cumberland County concerning a marriage between then Cumberland County residents, a Cumberland County property at III Rich Valley Road, Silver Springs Township, Mechanicsburg, Pennsylvania, and conduct in the Court of Common Pleas in Cumberland County. 4. The events which give rise to the causes of action set forth in this Complaint occurred in Cumberland County and affected the Plaintiff in Cumberland County, Pennsylvania. 5. Jurisdiction and venue over all claims set forth in this Complaint is proper in the Court of Common Pleas for Cumberland County, Pennsylvania. FACTS COMMON TO ALL COUNTS 6. Plaintiff White and Defendant Vick were married, and resided in Cumberland County in July 1998. 7. Defendant Vick decided to divorce Plaintiff White, but devised a fraudulent scheme to trick her into investing all her accessible cash assets into the purchase of the property at III Rich Valley Road, Silver Springs Township, Mechanicsburg, Pennsylvania by feigning reconciliation and manipulating the transaction so that all up front financial obligations would be paid with her funds, and then timing his separation to avoid the obligations he had agreed to as part of the fraudulent inducement for Plaintiff White to expend her funds. 8. The scheme was effected through a Post-Nuptial Agreement and related agreements purchase and finance the construction of a new residence at I I 1 Rich Valley Road, Silver Springs Township, Mechanicsburg, Pennsylvania. (Copy attached as Exhibit A). 9. The Lot was purchased for $71,224.33 with funds provided by Plaintiff White on July 28, 1998, and Plaintiff White made additional expenditures related to the property in excess of $2 I ,000 between July 1998 and the present date. 10. Defendant Vick separated from Plaintiff White in December 1998, timed so that Plaintiff White could not avoid the expense of pouring the foundations which had previously been contracted and was scheduled for the day after Defendant Vick walked out and sprung his trap. 11. The loan papers referenced in ~ 4 of the Post-nuptial Agreement were prepared and signed; however, in accordance with his scheme Defendant Vick did not proceed with the loan and walked out the day they were to be presented to the bank. 2 12. Plaintiff White was fraudulently induced to expend approximately $94,000; Defendant Vick manipulated the process so that he contributed only approximately $892.00 before he breached the agreement and walked out. 13. Defendant Vick failed to provide the consideration which was the basis for having any rights with respect to the approval of the agent to list the property. 14. Defendant Vick filed for divorce May 20, 1999. 15. The divorce was acrimonious throughout. 16. On April I I, 2000 Plaintiff White's divorce counsel, wrote to counsel for Defendant Vick to seek consent to sell the property. 17. Consent was withheld, with the sole purpose of ensuring that Plaintiff White would not be able to use the proceeds of the sale to defend the divorce action and secure an appropriate share of the other marital assets. 18. Defendant Vick made no designation of any person whom he would consent to list the property. 19. On December 2, 2000, Plaintiff White wrote to counsel for Defendant Vick directly and proposed Patricia Knouse as a listing agent. 20. On December 12, 2000, counsel wrote to indicate that Defendant Vick would not consider the nomination unless and until a listing contract was presented for his signature. 2 J. Defendant Vick never thereafter indicated assent or grounds for rejection of Ms. Knouse, and made no alternate nominations. 22. The Post-nuptial Agreement permitted the property to be titled in the name of Plaintiff White alone and made no provision which required, suggested or even permitted 3 Defendant Vick to be a co-signature on the listing or sale agreements relating to the property; indeed, Mr. Vick refused to have his name on the deed or to participate in the closing on the lot. 23. The only right vested in Defendant Vick was a right to participate in the selection of a listing agent, which was qualified by his obligation to secure a construction loan, contribute 1/3rd of the costs of the project, and cooperate in the sale ofthe residence. 24. Defendant Vick failed to secure a construction loan, contribute 1I3rd of the costs ofthe project, and cooperate in the sale ofthe residence. 25. Notwithstanding the express terms of the Post-nuptial Agreernent, Defendant Vick asserted in the divorce proceedings before the Master that the property should be addressed in the property distribution. 26. This was a breach of the agreement and was solely intended to maintain a cloud on the title which would prevent Plaintiff White from recovering the funds tied up in the property to defend her interests in the divorce action. 27. Blocking access to the funds tied up in the property resulted in an inability to pay counsel in the divorce action which resulted in a petition to withdraw which remained pending from September 2001 through the close of the divorce proceedings in March 2003. 28. From May 1999 through September 2002, Plaintiff White was unable to sell the property because Defendant Vick would not consent to list the property, claimed the property was subject to the divorce and otherwise refused to cooperate in any effort to sell the property. 29. On September 21, 2002, Plaintiff White located a potential buyer, Sandra McIntyre, who was willing to purchase the property for $97,700 without realtor commissions, provided the sale could be completed by November 30, 2002. 4 30. Because of the cloud on the title caused by the actions of Defendant Vick in the divorce action, the sale could not proceed. 31. The buyer remains interested in the property at that price, but has indicated that she cannot wait indefinitely and is now exploring other options. 32. At the hearing November 6-7, 2002, the Master concluded and communicated to counsel for the Parties that the property at III Rich Valley Road, Silver Springs Township, Mechanicsburg, Pennsylvania, was subject to the Post-nuptial Agreement and was excluded from consideration in the property distribution. 33. Notwithstanding this determination, Defendant Vick proceeded to issue a Lis Pendens against the property in the divorce action on December 4, 2002. 34. The Lis Pendens was filed at the docket number of the divorce action without required Certificate of Service. 35. No valid basis existed for the Lis Pendens, Defendant Vick had no property interest in the property, the property was not subject to the jurisdiction of the court in the divorce action, and Mr. Vick had at most an equitable interest in approximately $892.00 of the proceeds in the event of sale, which was subject to substantial offset for damages flowing from his continuing breach of obligations under the Post-nuptial Agreement. 36. Counsel for Defendant Vick wrote to counsel for Plaintiff White that the Lis Pendens was filed, because the Master had indicated that the property would not be included in his report, confirming that Defendant Vick knew that the property was not deemed to be at issue in the divorce action. 5 37. Counsel for Defendant Vick requested an Acceptance of Service for the Lis Pendens from prior Counsel for Plaintiff White, no acceptance of service was authorized by Plaintiff White, nor was any acceptance of service filed by counsel for Defendant Vick. 38. The Masters Report was issued January 22,2003. 39. No exception was taken by Defendant Vick to the exclusion ofthe property at III Rich Valley Road, Silver Springs Township, Mechanicsburg, Peunsylvania, from the distribution. 40. The Masters Report was adopted by the Court March 11,2003, and a final divorce decree was issued. 41. By March 11, 2003, the accumulated expenditures of Plaintiff White In the property approximated or exceeded the market value of the property. 42. Comparable lots in the same development sold for $80,000 and $89,000 in March and August of 2002. 43. On May 14, 2003, after the appeal period for the decree had past, undersigned counsel wrote to Defendant Vick through his counsel and requested that the Lis Pendens be withdrawn and consent be given for the sale of the property without listing. 44. Counsel for Defendant Vick replied May 19,2003, that he would not strike the Lis Pendens, consent for the sale was denied and Defendant Vick demanded that the property be listed with his name on the listing and sale, and that all proceeds held in escrow. 45. On June 5, 2003, undersigned counsel wrote to counsel for Defendant Vick and renewed the request to strike the improper Lis Pendens, explained that the expenses exceeded the value to be received if the sale were subject to 5% or 6% listing and sale commissions; provided documentation of the offer, offered covenants that no side deals were involved, provided a Right 6 of First Refusal in the event Defendant Vick genuinely believed consideration was inadequate, and fmally offered to make a small informal escrow as to any funds Defendant Vick could identifY as being legitimately in dispute after review of the documentation of Plaintiff White's expenses provided with the letter. 46. On June 6, 2003, counsel for Defendant Vick replied that the Lis Pendens would not be withdrawn (without providing any basis for alleged validity), renewed his insistence that the property be sold first and all proceeds placed in escrow, and indicated that his client would question some of the expenses (without indicating which or the magnitude of the amount likely to be disputed). 47. Counsel for Defendant Vick claimed difficulty in reaching Defendant Vick and provided assurance that a further response would follow; though none did. 48. On July 2, 2003, undersigned counsel again wrote to note the absence of a further response as promised, to renew the demand for action to strike the lis pendens and to respond with documentation of the bona fide arms length nature of the sale offer, note the absence of any challenge to any claimed expense, and repeat the prior demand to strike the Lis Pendens (again providing authorities) together with notice of intent to file this suit if action was not taken. 49. On July 7, 2003, counsel for Defendant Vick wrote to indicate that while they reviewed the documentation, they had unspecified questions "which should not be difficult to resolve," had unspecified questions as to the bona fide nature of the proposed sale, and renewed the demand that the property be sold by an agreement to which Defendant Vick would be a signatory and have the proceeds escrowed. 50. On August 6, 2003, undersigned wrote to counsel for Defendant Vick to supply documentation regarding the bona fide nature of the sale and the market value of the property, 7 and making a specific offer to escrow $5,000 (which was 5 times the amount contributed by Defendant Vick). 51. On August 13,2003, counsel for Defendant Vick again wrote, and stated that he would reply after he reached his client "who lives out of state, travels extensively because of his work, and is frequently unavailable to communicate except by mail;" no further response was received by September 2,2003. 52. By September 2, 2003, it was apparent that Defendant Vick had no intention of addressing the improper Lis Pendens, cooperating in a sale of the property or otherwise permitting Plaintiff White to recover the funds he tricked his wife into investing in the property. COUNT I DECLARATORY JUDGMENT 53. Paragraphs 1 to 52 are incorporate by reference as ifrestated here verbatim. 54. Defendant Vick has no interest in the property at 11 I Rich Valley Road, Silver Springs Township, Mechanicsburg, Pennsylvania. 55. All rights in the property are defined by the Post-nuptial Agreement. 56. Defendant Vick has no interest in the property because his breach of the obligation to provide his share of the expense resulted in expenses in excess of the approximately $892.00 he contributed to the property. 57. Defendant Vick unreasonably refused to cooperate in the sale of the property in breach of the Post-nuptial Agreement, and so Defendant Vick's consent to the sale should no longer be required. 58. Under the circumstances presented here, listing with an agent would be likely result in a lost sale and reduced net proceeds. 8 59. No escrow of proceeds is required by the agreement and none shall be required here. WHEREFORE, Plaintiff White respectfully requests a declaration of contract rights as follows: All rights of the Parties in the property at 111 Rich Valley Road, Silver Springs Township, Mechanicsburg, Pennsylvania, are defined by the Post-nuptial Agreement. Defendant Vick has no property interest in the property at 111 Rich Valley Road, Silver Springs Township, Mechanicsburg, Pennsylvania, and his name shall not be required for any listing agreement, sales agreement, deed or related document concerning a sale ofthe property; Defendant Vick unreasonably refused to cooperate in the sale of the property in breach of the Post-nuptial Agreement from April 2000 to the present date. Defendant Vick had a negligible interest in the proceeds of any sale and his refusal to consent despite offer to escrow funds in excess of any documented interest was unreasonable. Defendant Vick's consent to any sale is no longer required. Under the circumstances presented here, listing with an agent would be likely result in a lost sale and reduced net proceeds, and so Plaintiff White may sell the property with or without listing. No escrow of proceeds is required by the agreement and none shall be required here. Any claim arising from the Post-nuptial Agreement or otherwise concerning the property in the property at 111 Rich Valley Road, Silver Springs Township, Mechanicsburg, Pennsylvania, shall be brought by Defendant Vick against Plaintiff White directly and individually in this action and Mr. Vick shall have no claim or recourse against any purchaser or any person or entity subsequently holding title or interest in the property at 11 I Rich Valley Road, Silver Springs Township, Mechanicsburg, Pennsylvania. COUNT II BREACH OF CONTRACT 60. Paragraphs 1 to 59 are incorporate by reference as if restated here verbatim. 9 61. Defendant Vick breached the Post nuptial Agreement as detailed above, by failing to provide required consideration and by unreasonably failing to cooperate in the sale of the property . 62. As a direct and proximate result, Plaintiff White was forced to incur substantial expense, and was denied both the use of her funds and the reasonably foreseeable increase in value of the property had it been completed and sold as contemplated in the agreement. 63. Plaintiff seeks authorization to proceed with a sale as described above; however, if the sale is lost through delay, Plaintiff shall seek compensatory damages in the amount of $97,700 or the accumulates expenses related to the property whichever is more at the time of trial in this matter, subject to surrender oftitle to the property to Defendant Vick. WHEREFORE, Plaintiff prays this court to award compensatory damages in an unliquidated amount in excess of $25,000, together with interest, costs and such other relief as this court may deem just. COUNT III DISPARAGEMENT OF TITLE 64. Paragraphs 1 to 63 are incorporate 1>y reference as if restated here verbatim. 65. Defendant Vick issued a Lis Pendens without basis or justification. 66. No claim regarding the property was made, pending or pursued in the divorce action where the Lis Pendens was filed. 67. The Lis Pendens was improper and was not accompanied by a required Certificate of Service. 68. The Lis Pendens constituted a slander of title which materially and adversely affected the marketability of the property. 10 69. As a direct and proximate result, Plaintiff White was forced to incur substantial expense, was denied both the use of her funds and the reasonably foreseeable increase in value of the property had it been completed and sold as contemplated in the agreement, and was required to incur attorney's fees to vindicate her rights. 70. Plaintiff seeks authorization to proceed with a sale as described above; however, if the sale is lost through delay, Plaintiff shall seek compensatory damages in the amount of $97,700 or the accumulates expenses related to the property whichever is more at the time of trial in this matter, subject to surrender of title to the property to Defendant Vick. WHEREFORE, Plaintiff prays this court to award compensatory damages In an unliquidated amount in excess of $25,000, together with interest, costs and such other relief as this court may deem just. COUNT IV MALICIOUS INTERFERENCE WITH PROSPECTIVE CONTRACTUAL RELATIONS 71. Paragraphs 1 to 70 are incorporate by reference as if restated here verbatim. 72. Defendant Vick had a negligible interest in the proceeds of any sale of the property, if any. 73. Plaintiff White located a prospective buyer for the property who was ready willing and able to purchase the property on or before November 30, 2002. 74. Defendant Vick maliciously and unreasonably breached his contractual obligation to cooperate in the sale of the property and asserted baseless claims and filed a baseless Lis Pendens with the specific intent of blocking any sale of the property. 75. Defendant Vick did so for the improper purpose of ensuring Plaintiff White would not have access to her funds for the defense of his divorce action and particularly for representation in the property distribution proceedings. 11 76. The interference was wrongful. 77. The interference was outrageous under the circumstances of this case and warrants imposition of punitive damages. 78. As a direct and proximate result, Plaintiff White was forced to incur substantial expense, was denied both the use of her funds and the reasonably foreseeable increase in value of the property had it been completed and sold as contemplated in the agreement, and was required to incur attorney's fees to vindicate her rights. 79. Plaintiff seeks authorization to proceed with a sale as described above; however, if the sale is lost through delay, Plaintiff shall seek compensatory damages in the amount of $97,700 or the accumulates expenses related to the property whichever is more at the time of trial in this matter, subject to surrender of title to the property to Defendant Vick. WHEREFORE, Plaintiff prays this court to award compensatory damages In an unliquidated amount in excess of $25,000, attorney's fees, and punitive damages together with interest, costs and such other relief as this court may deem just. Count V - Fraud 80. Paragraphs 1 to 79 are incorporate by reference as if restated here verbatim. 81. Prior to July 28, 1998, Defendant Vick decided to divorce his wife. 82. Defendant Vick, however, devised a fraudulent scheme to first deplete any cash resources Plaintiff White had which could be used to defend the divorce action or protect her interests in any property distribution proceedings. 83. Defendant Vick feigned reconciliation to effect his scheme. 12 84. As part of a deliberate scheme to deplete her cash resources, Defendant Vick fraudulently induced Plaintiff White to enter into the Post-nuptial Agreement and the contractual obligations related thereto. 85. Defendant Vick likewise induced Plaintiff White to incur other joint expenses for the same purpose. 86. Defendant Vick timed his separation to ensure that Plaintiff White would have expended maximum funds while he would be enabled to avoid all but negligible expense. 87. Plaintiff White reasonably relied upon Defendant Vick's oral and written assurances that any investment would be protected by the parties written agreements to cooperate in recoupment of the assets and to distribute them outside any divorce process. 88. The fraudulent nature of the scheme did not become apparent until the Lis Pendens was filed in December 2002. 89. The fraudulent conduct resulted in extreme financial deprivation, emotional distress and an inability to afford a proportionate response to the aggressive and acrimonious conduct of Defendant Vick in the divorce proceeding. 90. The conduct was outrageous under the circumstances of this case, and warrants imposition of punitive damages. 91. As a direct and proximate result, Plaintiff White was forced to incur substantial expense, was denied both the use of her funds and the reasonably foreseeable increase in value of the property had it been completed and sold as contemplated in the agreement, and was required to incur attorney's fees to vindicate her rights. 92. Plaintiff seeks authorization to proceed with a sale as described above; however, if the sale is lost through delay, Plaintiff shall seek compensatory damages in the amount of 13 $97,700 or the accumulates expenses related to the property whichever is more at the time of trial in this matter, subject to surrender of title to the property to Defendant Vick. WHEREFORE, Plaintiff prays this court to award compensatory damages in an unliquidated amount in excess of $25,000, attorney's fees, and punitive damages together with interest, costs and such other relief as this court may deem just. COUNT VI - ABUSE OF PROCESS 93. Paragraphs 1 to 92 are incorporate by reference as if restated here verbatim. 94. Defendant Vick asserted claims in the divorce regarding the property for the sole and wrongful purpose of delaying a sale and return of proceeds to Plaintiff White. 95. Defendant Vick issued an invalid Lis Pendens for the sole and wrongful purpose of delaying a sale and return of proceeds to Plaintiff White. 96. Defendant Vick refused to strike off the Lis Pendens without justification and despite identified defects for the sole and wrongful purpose of delaying a sale and return of proceeds to Plaintiff White. 97. Defendant Vick made no attempt to pursue the Lis Pendens claim through exceptions to the Master's Report or an appeal ofthe Decree adopting that report which excluded the property from the distribution. 98. Defendant Vick refused to strike off the Lis Pendens after the Divorce Decree and Distribution became final and there was no pending action to which the Lis Pendens could relate. 99. The conduct was outrageous under the circumstances of this case, and warrants imposition of punitive damages. 100. As a direct and proximate result, Plaintiff White was forced to incur substantial expense, was denied both the use of her funds and the reasonably foreseeable increase in value of 14 the property had it been completed and sold as contemplated in the agreement, and was required to incur attorney's fees to vindicate her rights. 101. Plaintiff seeks authorization to proceed with a sale as described above; however, if the sale is lost through delay, Plaintiff shall seek compensatory damages in the amount of $97,700 or the accumulates expenses related to the property whichever is more at the time of trial in this matter, subject to surrender of title to the property to Defendant Vick. WHEREFORE, Plaintiff prays this court to award compensatory damages In an unliquidated amount in excess of $25,000, attorney's fees, and punitive damages together with interest, costs and such other relief as this court may deem just. ReSp~Ctfi I /. And e . Barbin Atty. No. 43571 Andrew W. Barbin, P.C. 5020 Ritter Road, Suite 109 Mechanicsburg, P A 17055 717-506-4670 ~ Date: September 2, 2003 15 "EXHIBIT A" \ , '. . . POST-NUPTIAL AGREEMEtf)) .......C"o---. This Agreement made this ~ day of "'r' '1 8'-<JV, 1998, by and between Brenda White-Vick (hereinafter Wife) and Robert Christopher Vick (hereinafter Husband) of Mechanicsburg, Cumberland County, Pennsylvania. WIT N E SSE T H WHEREAS, the parties were married on Novembe~ 1989; and WHEREAS, this was the second marriage for both parties; and'" WHEREAS, no children have been born of this marriage; and WHEREAS, the parties wish to set forth in this agreement their respective financial and property rights and obligations with respect to a specific residence which they intend to build, and as regards any other rights as arise in light thereof out of their marriage. WHEREAS, the parties desire to contract with each other concerning the residence which they intend to build; and WHEREAS, the parties acknowledge that as an inducement to build the residence at 111 Rich Valley Road, Silver Spring Township, Mechanicsburg, Pennsylvania, that they have entered this agreement to order their interests in said residence and would not have contributed funds to build said residence unless they will enter the within agreement to order their interests therein. WHEREAS, it is the desire and intention of the parties hereto to alter, change and effect their statutory and common law rights and obligations as they currently exist or as later enactments of the }(;l.~.may cause them to be in accOrJ.ance with '--"'~---"'-"'" ,- - ~ "--'-'->~-"""'"_.""--'-"-"""""'---"""'''''' '"-'~~~.'-"",,-,~.''''' \ \ , , "---..,.. ~.-" '. provisions hereinafter set forth; and WHEREAS, both parties acknowledge that they have been adequately and sufficiently apprised of the nature and extent of each other's assets to allow them to exercise and waive their rights and assume their obligations as have been hereinafter set forth and do hereby waive further or more specific disclosures; and ~";, WHEREAS, both Husband and Wife fully understand all the terms, conditions and provisions of this Agreement and acknowledge them to be fair, just, adequate and reasonable as to each of them and both Husband and Wife freely and voluntarily accept such terms, conditions, and provisions as full consideration for their mutual rights and obligations under this Agreement. NOW, THEREFORE, with the foregoing recitals being hereinafter incorporated by reference and deemed an essential part hereof and intending to be legally bound hereby, and for other good and sufficient consideration, receipt whereof is hereby acknowledged, the parties mutually agree as follows: 1. FULL DISCLOSURE The parties acknowledge and agree that they are each aware of the financial worth and assets of the other party. The parties acknowledge that they have filed joint income tax returns throughout their marriage and that they are fully aware of each other's income and assets. The parties hereby agree that they have had full and fair disclosure of 2 " ',". each other's financial worth and assets in entering into . this agreement. 2. APPLICABLE LAW Regardless of where the parties may reside or be domiciled in the future and regardless of the situs of any'of their joint, marital, or separate property, their property rights pursuant to their marriage, their rights under this Agreement, and the interpretation of this Agreement shall be construed under the laws of the Commonwealth of Pennsylvania in effect as of the date of this Agreement, as interpreted by the Pennsylvania Supreme Court in Simeone v. Simeone, S2S Pa. 392, SB1 A.2d 162 (1990). The parties acknowledge that the law of the Commonwealth of Pennsylvania might change, particularly in light of the Uniform Premarital Agreement Act, but, nevertheless, desire that any court interpreting this Agreement interpret it according to the laws of the. Commonwealth of Pennsylvania in effect as of the date of execution of this Agreement as set forth .in the Simeone case. 3. Law of Pennsylvania Applicable: This Agreement shall be construed under the laws of the Commonwealth of Pennsylvania. 4. Residence at 111 Rich Valley Road, Mechanicsburq, PA 17055 The parties acknowledge that they intend to build and ,purchase a residence located at 111 Rich Valley Road, Silver Spring Township, Mechanicsburg, Cumberland County, 3 " Pennsylvania. The parties agree that this property will be titled in Wife's name alone. The parties specifically agree that~o matter how this residence is titled, whether individually or jointly, that in the event of their separation, divorce or death, the residence and property ~ will be distributed as specified herein. The parties ,------~_.- ~------- acknowledge that Wife intends to contribute approximately two-thirds of the purchase price and the Husband intends to contribute approximately the remaining one-third of the purchase price by obtaining a construction loan in joint names. The parties have entered into this Agreement for purposes of ordering their interest in said residence in the event of their separation, divorce or death. In the event of their separation or divorce, the parties agree that the wife will assume the mortgage or, in the event that Wife no longer wishes to remain in said residence, the residence shall be listed for sale with a real estate agent chosen by both parties and both parties agree that they shall cooperate in the sale of said residence. When the residence is sold and after the cost of sale and taxes are deducted, Wife shall receive from the net proceeds the amount of her ~tial down paym~~and Husband shall receive an~~~unt equal to the amount which he has paid on the princi?al of .. . _.,....~.._.u,_._'-..,h . ., . _~.' ~ ,._',' ""."'" .o".i._._. ". , ~,,_.~~......-,.-...., any loans or mortgages against the residence, thereafter the ---"'--":;-"----' ~. ....^"'~_......, ." .,- ~'-, . parties will equally divide the remainder of the net 4 ! i \ I r: '. proceeds, if any. If upon separation or divorce Wife wishes to remain in said residence, then Wife agrees and acknowledges that upon notice from the Husband of his intent to move out of the residence or his desire to separate from Wife, that Wife shall make reasonable efforts to refinance the mortgage into her name alone, or in any event shall be responsible for said mortgage and indemnify and hold harmless Husband against said mortgage. Additionally, upon the parties separation or divorce, if Wife desires to remain in the residence, then she also agrees to reimburse Husband for any payments on the principal of any loans or mortgages against said residence which Husband made during the marriage. In the event of Wife's death the residence shall be sold and the proceeds divided as specified herein under the above provisions which deal with separation or divorce. Wife's portion of the proceeds from the sale of said residence shall then pour into her estate. In the event of Husband's death, Wife shall be permitted to remain in said residence and Wife shall pay into Husband's estate an amount equal to the principal amount paid on any loans or mortgages against said residence which were paid by Husband during the marriage and prior to separation. The parties agree that the amount Paid against the principal of any loans or mortgages on said property shall be the extent of Husband and his estates' claim ~ 5 -"-~._". . . against said residence. 5. Remainder of Marital Property - The parties acknowledge and agree that the within agreement is intended, to deal only with the 111 Rich Valley RQ,g.9 Ee.~i.denc~_',_9:nd the remainder of their marital property and other claims pursuant to divorce shall be divided and/or determined pursuant to the, Divorce Code of Pennsylvania. ,6. If either party breaches any provision of this Agreement, the other party shall have the right, at his or her election, to sue for damages for such breach or seek such other remedies or relief as may be available to him or her and the party breaching this contract shall be responsible /' ~or payment of legal fees and costs incurred enforcing their rights under this Agreement. , . 7. ch party asserts that he or she has made a by the other,in certain disclosure of real and personal property belonging to each of them, of the debts and encumbrances incurred by each of them, of the debts and encumbrances incurred by each of them, of the sources and amounts of income received or receivable by each party and each party acknowledges and agrees that each is fully satisfied with the nature and extent of the other's disclosure and hereby waives and voluntarily relinquishes any right to further disclosures in consideration for the other terms, conditions and provisions of this Agreement which the parties hereby agree are fair, just and adequate and reasonable as to each of them. 6 B. If any term, condition, clause or provision of this Agreement shall be determined to be void or invalid at law or for any other reason, then only that term, condition, clause or provision as is held to be void and invalid shall be stricken from the Agreement and in all other respects "-- this Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereunto have set their hands and seals to this Agreement the day and year first above written. ~~1G~ ~::) ~~ QQ~ BR~ND/WH~-'W ~~~~ICK 7 :.-'" BRENDA WHITE, 6303 Stanford Court Mechanicsburg, P A 17055 Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. No. ROBERT CHRISTOPHER VICK, 5 Maugus Avenue Marblehead, MA 01945 Defendant JURY TRIAL DEMANDED VERIFICATION I, Brenda White, verifY that the statements made in the foregoing COMPLAINT are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. S 4904 relating to unsworn falsification to authorities. a Gh.if;- Brenda White DATED: August 29, 2003 ,- i~ .01 ~ ", U! ~ ( f'-'- C~:.' - u: 1-:: II... o l.'_. J C. " (.f:' ;~') '-.--', '. . ~,. ;:.>{.;... ,- , u "2 - ~ cS ~ ~ Q~ 0 0- ~ Jb\{). f) ~~ ~ ::r c5 ~ -i#3 -- r-ram: Anarew 'IV. Ijaroln, esquire fl f-::lUtl-4bf L 10: ;:.amuel Anaes uare: l:JfL~;ILUU';\ lime: 4:1l:J:U4 I"'IVI Jage.j aT,;\ BRENDA WHITE, Plaintiff : IN THE COLJRT OF COMMON PLEAS : CUMBERLA:'ID COUNTY, PENNSYLVANIA Y. No. 03-4288 ROBERT CHRISTOPHER VICK. Defendant JURY TRIAL DEMANDED ACCEPTANCE OF SERVICE I hereby acc~pt service of the Complaint on behalf of the above captioned Defendant, Robert hristopher Vick, and certify that I am authorized to do so. J --~ '-~ ',{ - . Sa,';mel L~. Allde, , Esqui;c. . Date BRENDA WHITE-VICK, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA V. No. 99-3046 CIVIL Term ROBERT CHRIST@PHER VICK, . Defendant I I, Andrew W. ~arbin, hereby certifY that a true and correct copy of the ACCEPTANCE OF I CERTIFICATE OF SERVICE SERVICE and transmittfd letter for filing was served by first class prepaid U.S. Mail as follows: Samuel L. Andes, Esquire 525 North 12rh Street Lemoyne, P A 17043 Robert Christopher Vick 2101 James Street Syracuse, NY 13206 ~ ~ DATED: October 30, 2003 e 0 0 W "n 3:: 0 --, ~O:l n ::C-n 9:: ..... f\'F w "".m Zr' :;::;CJ (J) j' '~) ,l. ",,~::. __,--itJ kC.l -n ~ "T. >~::!J ~8 ::;:: 40 r:Y ~-Srn :>c: ::::. ~ -l~ :0 (1'\ -< BRENDA WHITE vs Case No. 03-4288 ROBERT CHRISTOPHER VICK Statement of Intention to Proceed Print Name ANDREW 'iN. BARBIN Sign Name ...... To the Court: BRENDA WHITE Date: 9/12/06 Attorney for Brenda Whi te Explanatory Comment The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the termination of inactive cases and arnended Rule of Judicial Administration 1901. Two aspects of the recommendation merit comment. I. Rule of civil Procedure New Rule of Civil Procedure 230.2 has been promulgated to govern the termination of inactive cases within the scope of the Pennsylvania Rules of Civil Procedure. The termination of these cases for inactivity was previously governed by Rule of Judicial Administration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is tailored to the needs of civil actions. It provides a cornplete procedure and a uniform statewide practice, preempting local rules. This rule was promulgated in response to the decision of the Supreme Court in Shop v. Eagle, 551 Pa. 360,710 A.2d 1104 (1998) in which the court held that "prejudice to the defendant as a result of delay in prosecution is required before a case may be dismissed pursuant to local rules implementing Rule of Judicial Administration 1901." Rule of Judicial Administration 1901(b) has been amended to accommodate the new rule of civil procedure. The general policy of the prornpt disposition ofrnatters set forth in subdivision (a) of that rule continues to be applicable. II Inactive Cases The purpose of Rule 230.2 is to eliminate inactive cases frorn the judicial systern. The process is initiated by the court. After giving notice of intent to terminate an action for inactivity, the course of the procedure is with the parties. If the parties do not wish to pursue the case, they will take no action and "the Prothonotary shall enter an order as of course terminating the matter with prejudice for failure to prosecute." If a party wishes to pursue the matter, he or she will file a notice of intention to proceed and the action shall continue. a. Where the action has been terminated If the action is terminated when a party believes that it should not have been terminated, that party may proceed under Rule230( d) for relief from the order of termination. An example of such an occurrence might be the termination of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file the notice of intention to proceed. The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of the entry of the order of termination on the docket, subdivision (d)(2) provides that the court must grant the petition and reinstate the action. If the petition is filed later than the thirty-day period, subdivision (d)(3) requires that the plaintiff must make a show in to the court that the petition was promptly filed and that there is a reasonable explanation or legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of termination on the docket and for the failure to file the petition within the thirty-day period under subdivision (d)(2). B. Where the action has not been terminated An action which has not been terminated but which continues upon the filing of a notice of intention to proceed may have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a common law non pros which exits independently of termination under Rule 230.2. u.:' -c r .~ t::':'