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HomeMy WebLinkAbout07-5779~'. DAVID M. McCLELLAN, JR. : IN THE COURT OF COMMON PLEAS OF ~, Plaintiff :CUMBERLAND COUNTY, PENNSYL'~~'~1N~ `ten • - ~-~ ~~~° VS. :CIVIL ACTION -LAW _,... = F; c.~ c.a -, LINDA D. McCLELLAN, NO. ~ ~~- S 7~ ~ ~-~~ ~~ :. ' ; Defendant : IN DIVORCE ~ _~, _._.._ ~ ~TnTTC"F Tn nFFFT~TT) ANTS C',T.ATM RTCTHTS :.. "w, 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 maybe 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. When the ground for the 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 at Cumberland County Courthouse, Carlisle, Pennsylvania. IF YOU DO NOT FILE A CLAIM FOR ALIMONY, DIVISION OF PROPERTY, LAWYER'S FEES OR EXPENSES BEFORE A DNORCE 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIIZING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 S. Bedford Street Carlisle, Pennsylvania .- Q- (717) 249-3166 ~, ~ °~~-- An ony L. DeL a, Esquire 113 Front Street P.O. Box 358 Boiling Springs, PA 17007 1 DAVID M. McCLELLAN, JR. : IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA VS. :CIVIL ACTION -LAW LINDA D. McCLELLAN, NO. ~ ~' ,5 ~~'~ ~ Cu-~.--C r~'~" Defendant : IN DIVORCE AND NOW, comes the Plaintiff, David M. McClellan, Jr., by his Attorney, Anthony L. DeLuca, Esquire, and seeks to obtain a Decree in Divorce, from the above-named Defendant, upon the grounds hereinafter more fully set forth: REQUEST FOR A NO-FAULT DNORCE UNDER SECTION 3301 (c) OF THE DIVORCE CODE 1. Plaintiff is David M. McClellan, Jr., who currently resides at 15 Joseph Drive, Boiling Springs, Cumberland County, Pennsylvania since October 27, 2006. 2. Defendant is Linda D. McClellan, who currently resides at 90 Brian Lane, Effort, Monroe County, Pennsylvania since October 27, 2006. 3. Plaintiff and Defendant have been bona fide residents in the Commonwealth for at least six months immediately previous to the filing of this Complaint. 4. The Plaintiff and Defendant were marred on June 20, 1987 at Farmingdale, New York. 5. There have been no prior actions of divorce or for annulment between the parties except for Divorce Action filed to No. 4986 S 2000 in Cumberland County, which action was purged in 2004. 6. The marriage is irretrievably broken. 7. 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. 8. Plaintiff requests the court to enter a decree of divorce. WHEREFORE, Plaintiff respectfully requests that the Court enter a Decree of Divorce, pursuant to Section 3301 (c) of the Divorce Code. CUSTODY 9. Paragraphs 1 through 8 of this Complaint are incorporated herein by reference as though set forth in full. 10. Plaintiff seeks custody of the following children, born of their marriage: David Charles McClellan, age 16, born on May 24, 1991 and Christine Nicole McClellan, age 12, born on November 18, 1994. 11. The children are presently in the custody of the father who resides at 15 Joseph Drive, Boiling Springs, Pennsylvania. 12. Since birth, the children have resided with the following persons at the following addresses: a.) Father and mother at 318 Boundary Avenue, North Massapequa, New York, from May, 1991 to December, 1996. b.) Father and Mother at 470 Mountain Road, Boiling Springs, Pennsylvania from December, 1996 to October 27, 2006; c.) Mother at 90 Brian Lane, Effort, Pennsylvania from October 27, 2006 to August 19, 2007; and d.) Father at 15 Joseph Drive, Boiling Springs, Pennsylvania, from August 19, 2007 to present. 13. Plaintiff has not participated as a party, witness or in any capacity in any other litigation concerning the custody of the children in this or any other state. 14. Plaintiff has no information of any custody proceeding concerning the children pending in this or any other state. 15. Plaintiff does not know of any person not a party to the proceedings who has physical custody of the children or claims to have custody or visitation rights with respect to the children. 16. It is in the best interest and welfare of the children to remain in the custody of the father, David M. McClellan, Jr., Plaintiff herein, because the children are living with the father and attending school in the same school district that they began attending from the first grade and where they have their friends. WHEREFORE, Plaintiff respectfully requests that the Court grant custody of David Charles McClellan and Christine Nicole McClellan to the Plaintiff and award visitation rights of said children to the Defendant. Dated• ao'T Respectfully Submitted, 'G~ Anthony L. DeL a, Esquire 113 Front Street P.O. Box 358 Boiling Springs, PA 17007 (717) 258-6844 ID #: 18067 VERIFICATION I verify that the statements made in this Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities. ,, ~a~ ,~..= --,. Date: David M. McClellan, ., Plaintiff C"'~ ntii ~ ~~ GG~~ ~ (" _ ~ ` € r ~ ~ ~' . J ,~ '~ ~,. ~ - t,. . ~ ~ _,.w ® :-..~ ~ ~ ~ < - - av O a r°° ~" ~• hou? 1 11) 1T) (40 l.EI.i ? q vs Case No. f) 1 n c ee < tc r, M Statement of Intention to Proceed rn --o ?? -, CO a CD C? To the Court: 7 < -4p C) -` n L. r 1C?C?. ?? C C? (? S n intends to proceed with the above cap d nTAter.,?„#€?-t Print (X _IQ Sign Name, ?f C_Z4_a 4__ Date: `I cl - v Attorney for Explanatory Comment The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the termination of inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit comment. 1. 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 complete 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 prompt disposition of matters 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 from the judicial system. 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 he 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 temunation. 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 showing 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. DAVID M. McCLELLAN, JR. vs LINDA D. McCLELLAN Case No. 07-5779 C N ° tzs ~~ a ~ ~ - ~ ~ ~' -G~ tv r r--.~=- t tW Statement of Intention to Proceed A o -~ za ~ AC w To the Court: -~"-e .~ -< d DAvid M. McClellan, Jr. intends to proceed with the above captioned matter. c~ --~ ~~ `vim +~ , o~ ~n --ice ~t -< Anthony L. DeLuca Print Name Sign Name Date: d ~' d Attorney for David M. McClellan, Jr. Explanatory Comment The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the termination of inactive cases and amended 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 Adminishation 1901 and local rules promulgated pursuant to it. New Rule 230.2 is tailored to the needs of civil actions. It provides a complete 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 maybe 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 prompt disposition of matters 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 from the judicial system. 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 temvnated when a party believes that it should not have been terminated, that party may proceed under Ru1e230(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 ternunate 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 showing 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. DAVID M. McCLELLAN, Plaintiff: VS. LINDA D. McCLELLAN, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW ma) C_ :Zrn ? e - rs?" c N ?C NO. 07-5779 IN DIVORCE ea ,-fF ACCEPTANCE OF SERVICE I accept service of the Complaint in Divorce. I certify that I am authorized to accept service on behalf of defendant. 02-01/ Date )4(--- Kimberly Fedrigon, Esquire KASH & FEDRIGON 820 Arm Street Stroudsburg, PA 18360 DAVID M. McCLELLAN, JR., IN THE COURT OF COMMON PLEAS Ot1! Plaintiff CUMBERLAND COUNTY, PENNSYL ?II C -?- ., XM VS. CIVIL ACTION -LAW N dw LINDA D. McCLELLAN NO. 07-5779 r `? ~3 Defendant : IN DIVORCE== NOTICE If you wish to deny any of the statements set forth in this affidavit, you must file a counter-affidavit within twenty days after this affidavit has been served on you or the statements will be admitted. AFFIDAVIT UNDER SECTION 3301(d) OF THE DIVORCE CODE 1. The parties to this action separated in April 20, 2005, and have continued to live separate and apart for a period of at least two years. 2. The marriage is irretrievably broken. 3. 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. I verify that the statements made in this affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Sec. 4904 relating to unworn falsification to authorities. Date: Z;-- DAVID M. cCLELL . : IN THE COURT OF COMMON PLEAS OF DAVID M. MCCLELLAN, JR CUMBERLAND COUNTY, PENNSYLVANIA . V. LINDA D. MCCLELLAN DIVORCE DECREE AND NOW, 000b-c'" /9' Z° )l , it is ordered and decreed that DAVID M. MCCLELLAN, JR. , plaintiff, and LINDA D. MCCLELLAN , defendant, are divorced from the bonds of matrimony. Any existing spousal support order shall hereafter be deemed an order for alimony pendente lite if any economic claims remain pending. The court retains jurisdiction of any claims raised by the parties to this action for which a final order has not yet been entered. Those claims are as follows: (If no claims remain indicate "None.") "NONE" By the Court, NO. 07-5779 v?7Ce t J,,, ,4ew 7? i IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CIVIL DIVISION Doty( d- r rrt uc Plainti File No. vs. L t) /2 /4 h Defendant IN DIVORCE (--) r.-1 rrl c mm NOTICE TO RESUME PRIOR SURNAME CPI_ — 1Q -0 Notice is hereby given that the Plaintiff / Defendant in the above matter, I> c--) Its c) (select one by marking "X"). prior to the entry of a Final Decree in Divorce, —f or Kfter the entry of a Final Decree in Divorce dated / 0 l/8//!, hereby elects to resume I{ocL oe 1 the prior surname of his / her intention pursuant to the provisions of 54 P.S. § 704. Date: ( /01/4-1 COMMONWEALTH OF PENNSYLVANIA COUNTY OF “"10 , and gives this written notice avowing Signature Signature of name being resumed On the e day of / before me, the Prothonotary or a Notary Public, personally appeared the above affiant known to me to be the person whose name is subscribed to the within document and acknowledged that he / she executed the foregoing for the purpose therein contained. In Witness Whereof, I have hereunto set my hand and official seal. ti t9 W(314)pENNc cYLVAN►A NOTARIAL BOWN SEAL Public Stroudsburg Commission 6orc, Monroe County Expires June 17, 2018 01°1 PC* il‘iLbq i# 36361