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HomeMy WebLinkAbout03-5926Emily Long Hoffman, Esquire Attorney I.D. #66307 105 N. Front Street P.O. Box 11475 Harrisburg, PA 17108-1475 (717)233-1112 THERESA M. EBY, Plaintiff V. CURTIS A. EBY, Defendant Attorney for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY No. 03- 4 /? tJ c Civil Action NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Petition or for any other claim or relief requested by Petitioner. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. COURT ADMINISTRATOR Third Floor Cumberland County Court House Carlisle, PA 17013 Telephone: 717 240-6200 NOTICIA Le han demandado a usted en la torte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de platy al partir de la fecha de la demanda y la notification. Usted debe presentar una apariencia escrita o en persona , \MyFa1&$AMyFlles?ncc ice tc Qet. CI v. Wpl o por abogado y archivar en la torte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, ]a cone tomara medidas y puede entrar una orden contra usted sin previo aviso o notification y por cualguier gueja o alivio que es pedido en la petition de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. COURT ADMINISTRATOR Third Floor Cumberland County Court House Carlisle, PA 17013 Telephone: 717 240-6200 C'.AMyPLles?J?iyFi]eeAoo[I Ce co tlef.civ-'xpd Emily Long Hoffman, Esquire Attorney I.D. #66307 105 N. Front Street P.O. Box 11475 Harrisburg, PA 17108••1475 (717)233-1112 THERESA M. EBY, Plaintiff V. CURTIS A. EBY, Defendant Attorney for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY No. ©3 S9? (a Civil Action COMPLAINT TO ENFORCE AGREEMENT 1. Plaintiff is Theresa M. Eby of 24 South Front Street, Newport, Perry County, PA 17074. 2. Defendant is Curtis A. Eby of 818 S. Humer Street, Enola, Cumberland County, Pennsylvania 17025. 3. On or about January 26, 2003, Plaintiff signed a Property Settlement Agreement, a copy of which is attached hereto as Exhibit "A". 4. The Agreement provides in the section titled "Sixth: Debts", on page seven of the Agreement, that "Husband specifically agrees to make the payments on loan account no. 8551006473." 5. The parties' Decree in Divorce was entered on February 3, 2003. Please see copy attached hereto as Exhibit "B". 6. On October 14, 2002, Defendant signed an Agreement that he would make car payments for Plaintiff on loan # 8551006473 until loan is paid in full. Please see copy of the Agreement attached hereto as Exhibit "C". 7. Defendant has failed to make the agreed payments on the car since March 2003. 8. On May 3, 2003, Plaintiff received the car loan coupon book in the mail from Defendant who refused to make any more payments and she incurred postal expense of $.23 due to Defendant's failure to pay proper postage. 9. Plaintiff has incurred attorney fees in seeking enforcement of the Agreements, 10. Plaintiff has made payments in the amount of $290.62 per month per month so that the bank does not repossess the vehicle. 11. Section "Pifteenth:Enforcement" of the Property Settlement Agreement, on page 10, provides that a defaulting party will be required to pay attorneys fees costs and expenses in the event proceedings must be brought in court. 12. Plaintiff has incurred late fees and Attorney fees and costs as well as other fees due to Defendants failure to make the Ordered payments. WHEREFORE, Plaintiff requests that this Honorable Court enforce Defendant's Agreement to pay Plaintiff's car payment; require Defendant to reimburse Plaintiff for monies expended in keeping the payments current and require Defendant to pay Plaintiff's attorneys fees and costs. Reepettfully submitted, Ernily Long Hoffman Sup Ct ID # 66307 105 N. Front St. P.O. Box 11475 Harrisburg, PA 17108-1475 (717) 233-1112 Attorney for Plaintiff Date: 1014/2003 PROPERTY SETTLEMENT AGREEMENT This agreement is made this a day of -441, it./Li , 2003, by and between CURTIS A. EBY, of 818 S. Humer Street, Enola, Cumberland County, Pennsylvania 17025, hereinafter for the purpose of brevity referred to as "Husband", and THERESA M. EBY, of 221 Spring Lane, Enola, Cumberland County, Pennsylvania 17025, hereinafter for the purpose of brevity referred to as "Wife", Witnesseth: WHEREAS, the parties hereto are husband and wife, having been lawfully joined in marriage on July 4, 1998, and diverse unhappy differences, disputes, misunderstandings and difficulties have arisen between the parties, as a result of which they are living separate and apart; and WHEREAS, Wife has instituted an action for divorce in the Court of Common Pleas of Cameron County; and WHEREAS, it is the desire of the parties, after long and careful consideration, to amicably adjust, compromise and settle all property rights and all rights in, to or against each other's property and estate, including property heretofore or subsequently acquired by either party, and to settle all disputes existing between them, including any and all claims for Wife's and/or Husband's maintenance and/or for support, alimony, counsel fees and costs. Each of the parties specifically covenants and agrees and warrants and represents that the execution of this agreement and its terms and provisions are accepted by them as including, inter alia, full and complete payment by the other for any and all past, present or future obligations for support, care, education, maintenance, and property rights of the other. Each further covenants, warrants, represents and agrees that no action will be instituted by them (or claim of any kind be made) for their support, or for any claim for property or rights other than as set forth in this agreement, directly or indirectly, against the other, in any court or any jurisdiction whatsoever. The parties hereto recognize, acknowledge and agree that each of them hereafter shall not have and does not have any rights or claims for support, care and maintenance or for any rights or claims of property because the provisions herein in the nature of a post-nuptial agreement are fair and reasonable and the property distributions herein are fair and reasonable. Wife acknowledges that the property conveyed to her is a fair and substantial portion of and division of Husband's assets and Wife's rights to equitable distribution of property; Husband acknowledges that property allocated to him is fair and a substantial portion of and division of the assets of the parties and Husband's rights to equitable distribution of property. Third: Release of Testamentary Claims Except as provided for in this agreement, each of the parties hereto shall have the right to dispose of his or her property by Last Will and Testament or otherwise, and each of them agrees that the estate of the other, whether real, personal or mixed, shall be and belong to the person or persons who would have become entitled thereto as if the decedent had been the last to die. This provision is intended to constitute a mutual waiver by the parties of any rights to take against each other's last wills under the present or future laws of any jurisdiction whatsoever, and is intended to confer third party beneficiary rights upon the other heirs and beneficiaries of each. Either party may, however, make such provision for the other as he or she may desire in and by his or her Last Will and Testament. Each of the parties further covenants and agrees that he or she will permit any will of the other to be probated and allow administration upon his or her personal, real or mixed estate and effects to be taken out by the person or persons who would have been entitled to do so had Husband or Wife died during the lifetime of the other; and that neither Husband nor Wife will claim against or contest the will and the estate of the other. Each of the parties hereby releases, relinquishes and waives any and all rights to act as executor or executrix or administrator or administratrix of the other party's estate. Each of the parties hereto further covenants and agrees for himself and herself and his and her heirs, executors, administrators and assigns, that he or she will never at any time hereafter sue the other party or his or her heirs, executors, administrators or assigns, for the purpose of enforcing any of the rights relinquished under this paragraph. Fourth; Legal Advice The provisions of this agreement and their legal effect have been fully explained to the parties by their respective counsel. The Husband has employed and had the benefit of counsel of Timothy J. O'Connell, Esquire, as his attorney. The Wife has elected to represent herself in this matter. Each party acknowledges that he or she fully understands the facts and fully, understands his or her legal rights and obligations and each party 4 acknowledges and accepts that this agreement is, in the circumstances, fair and equitable, and that it is being entered into freely and voluntarily after having received such advice and with such knowledge, and that execution of the agreement is not the result of any duress or undue influence and that it is not the result of any collusion or improper or illegal agreement or agreements. The respective parties do hereby warrant, represent and declare and do acknowledge and agree that each is and has been fully and completely informed of and is familiar with and cognizant of the wealth, real and/or personal property, estate and assets, earnings and income of the other and that each has made a full and complete disclosure to the other of his and her entire assets and liabilities and any further enumeration or statement thereof in this agreement is hereby specifically waived, and the parties do not wish to make or append hereto any further enumeration or statement. Each of the parties hereto further covenants and further agrees for himself and herself and his or her heirs, executors, administrators and assigns, that he or she will never at any time sue the other party or his or her heirs, executors, administrators or assigns, in any action or contention, direct or indirect, that there was any absence or lack of full disclosure or that there was any absence or lack of full, proper or independent representation. Fifth: Separation and Non-Molestation Agreement It shall be lawful for Husband and Wife at all times hereafter to live separate and apart from each other and to reside from time to time at such place or places as they shall respectively deem fit, free from any authority, control, restraint or interference, direct or indirect, by each other. Each party agrees that he or she will not molest or harass the other, or compel or endeavor to compel the other to cohabit or dwell with him or her by any legal or other proceedings. Each may have for her or his separate use and benefit the right to conduct, carry on or engage in any business, profession or occupation. Neither of the parties shall, in any way whatsoever, interfere with the other's employment or occupation. The parties are free to mutually and voluntarily make any efforts at reconciliation as he or she or they shall deem proper. The foregoing provision, however, shall not be taken to be an admission on the part of either Husband or Wife of the lawfulness or unlawfulness of the causes leading to their living apart, and shall not be taken to be an admission on the part of either Husband or Wife as to whether either party committed desertion and continues in such desertion, and nothing contained in this agreement is to be (teemed to justify such continued desertion. It is specifically intended and understood and agreed by and between the parties hereto that each is to be enabled to live not only separate and apart from each other, but is also free to act as if he or she were unmarried so far as any other persons are concerned and each covenants and agrees not to harass or embarrass the other or any other person who either party may hereafter see socially. Each of the parties hereto covenants and agrees that neither will deny or endeavor to abridge any right of support or maintenance which the other might have because of any alleged conduct with regard to any third persons; provided, however, that the parties hereto recognize that it is intended that this agreement shall and does supersede any and all rights or claims to support. Each of the parties hereto covenants and agrees that he and she will not charge the other with adultery in any action of any nature whatsoever, directly or indirectly, or whether involving the parties or third persons. 6 Sixth: Debts (A) All debts, contracts, obligations or liabilities incurred at any time in the past or future by either of the parties will be paid promptly by said party, unless and except as otherwise specifically set forth in this agreement; and each of the parties hereto further promises, covenants and agrees that each will now and at all times hereafter save harmless and keep the other or his or her estate indemnified and saved harmless from all debts or liabilities incurred by him or her, as the case may be, and from all actions, claims and demands whatsoever with respect thereto, and from all costs, legal or otherwise, and counsel fees whatsoever appertaining to such actions, claims and demands. Neither party shall, after the date of this agreement, contract or incur any debt or liability for which the other or his or her property might be responsible, and shall indemnify and save harmless the other from any and all claims or demands made against her or him by reason of debts or obligations incurred by her or him and from all costs, legal costs and counsel fees unless provided to the contrary herein. (B) Husband specifically agrees to make the payments on,loan account no. C' 8551006473 at Harris Savings until said loan is paid in full. Seventh: Equitable Distribution The parties agree to set over, transfer and assign all their right, title and interest in the property now in the possession of the other. Eighth: Alimonv. Support and Counsel Fees The parties agree to waive any right each may have against the other for alimony, spousal support and counsel fees. Ninth: Confirmatory Documents Husband and Wife covenant and agree that they will forthwith (and within at least fifteen days after demand therefor) execute any and all written instruments, assignments, releases, satisfactions, deeds, notes or such other writings as may be necessary or desirable for the proper effectuation of this agreement. The parties will further deliver to each other whatever personal papers, documents or writings that each now possess which are the property of the other. Tenth: Agreement to Continue in Event of Divorce This agreement shall remain in full force and effect unless and until it is terminated either by mutual written consent of both parties, or to the extent it is appropriately terminated by the death of either party under the terms of this agreement. The failure of either party to insist upon strict performance of any of the provisions of this agreement shall not be construed as a waiver of any subsequent default of the same or similar nature. In the event that the marriage of the parties hereto is terminated by divorce, this agreement shall nevertheless remain in full force and in effect and shall survive such decree and shall not in any way be affected thereby, except as provided herein. Eleventh: Agreement Binding on Heirs The terms, provisions and conditions of this agreement shall be binding upon any and all of their heirs, executors, administrators, successors and assigns of either the respective parties hereto, except as otherwise herein provided. Twelfth: Applicable Law This agreement shall be construed under the laws of the Commonwealth of Pennsylvania. Thirteenth: Prior Agreements It is understood and agreed that any and all property settlement agreements which may or have been executed prior to the date and time of this agreement are null and void and of no effect. Fourteenth: Void Clauses If any term, condition, clause or provision of this agreement shall be determined or declared to be void or invalid in law or otherwise, then only that term, condition, clause or provision shall be stricken from this agreement and in all respects this agreement shall be valid and continue in full force, effect and operation. No provision of this agreement shall be interpreted for or against any party because that party or that party's representative drafted this agreement in whole or in part. Fifteenth: Enforcement It is expressly understood and agreed by and between the parties hereto that this agreement may be specifically enforced by Husband or Wife in a court of equity, and the 9 parties hereto agree that if an action to enforce this agreement is brought in equity by either party, the other party will make no objection on the alleged ground of lack of jurisdiction of said court on the ground that there is an adequate remedy of law. The parties do not intend or purport hereby to improperly confer jurisdiction on a court in equity by their agreement, but they agree as provided herein for the forum of equity in mutual recognition of the present state of law, and in recognition of the general jurisdiction of courts in equity over agreements such as this one. Notwithstanding anything to the contrary herein, Wife or Husband may also proceed with an action at law for redress of any of his or her rights under the terms of this agreement. In the event that for any reason whatsoever either party is obliged to proceed at law for redress of his or her rights under the terms of this agreement, then it is specifically understood and agreed that for and in specific consideration of the other provisions and convents of this agreement, each shall waive any right to jury trial so as to expedite the hearing and disposition of such case and so as to avoid delay. It is specifically understood and agreed by the parties that in the event of a default under the terms of this agreement, the non-defaulting party shall have the right to file a petition for contempt and request such relief and remedies as authorized by law of the court. Each party further hereby agrees to pay and to save and hold harmless the other party from any and all attorney's fees, costs and legal expenses that either may sustain, or incur or become liable or answerable for, in any way whatsoever, or shall pay upon, or in consequence of, any default or breach by the other of any of the terms or provisions of this agreement by reason of which either party shall or shall be obliged to retain or 10 engage counsel to initiate or maintain or defend proceedings against the other at law or equity or both or in any way whatsoever; provided that the party who seeks to recover such attorney's fees, costs, and legal expenses and expenses must first be successful in whole or in part, before there would be any liability for attorney fees. All remedies provided by law and all remedies provided for in this agreement for enforcement of this agreement shall be deemed to be cumulative and the exercise of one remedy shall not bar or prevent the pursuit of any other remedy and either party may elect to pursue such remedies simultaneously and the exercise of a remedy one or more times shall not exhaust its use or prevent further pursuit of such remedy. This agreement shall not be deemed to merge into the decree of divorce. In witness whereof, and intending to be legally bound hereby, the parties hereto have hereunto set their hands and seals the date and year first written above. Witness: Curtis A. Eby Theresa M. Eby (seal) (seal) 11 CURTIS A. EBY, : IN THE COURT OF COMMON PLEAS Plaintiff CAMERON COUNTY, PENNSYLVANIA VS. : NO. 2002-3639 THERESA M. EBY, : CIVIL ACTION -LAW Defendant : IN DIVORCE DECREE INDIVORCE AND NOW, this 91 ` day of Pf,0FjA t.,ey, 2003, it is ordered and decreed that Curtis A. Eby, plaintiff, and Theresa M. Eby, defendant, are divorced from the bonds of matrimony. By the Court: JOHN FORADORA 07 SPECIALLY PRESIDING JUDGE J. Certified .2003 Prothonotary 1, Curtis A.Eby will make car payments for Theresa Eby until loan is paid in full. Account #8551006473 monthly payment $290.92 payable to Harris Savings. October 14, 2002 Curtis A Eby 818 S Homer ST Enola, PA 17025 p _ / V- CQ-- Notarial Seal Tina M. Robertson, Notary Public East Pennsboro Up. Cumberland County My Commission F -pues Nov. 15, 20D3 -` Member, Pennsylvania Association of Notanes VERIFICATION I, Theresa M. Eby, upon my personal knowledge, information, and belief, aver that the facts averred and statements made in the foregoing document are true and correct to the best of my knowledge. I understand that false statements or Averments therein made will subject me to the criminal penalties of 18 Pa.C. S. Section 4904 relating to unsworn falsification to authorities. BY: Theresa M. Ebby? Date: /0?// -? ?? ?? < <:- -- ? ?, `; ?J ?, (? THERESA M. EBY, Plaintiff V. CURTIS A. EBY, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY No. Civil Action PRAECIPE TO REINSTATE COMPLAINT TO THE PROTHONOTARY: Kindly reinstate the Complaint in the above-captioned matter. Re ectfully submitted, By: N V V y Lo g Hoffman, Esquire Sup. Ct. ID # 66307 105 North Front Street Harrisburg, PA 17108 (717)233-1112 Date: 1/15/2004 q?- iv G.. Curtis R. Long Prothonotary office of the i3rotbonotarp QCumberlanb Countp Renee K. Simpson Deputy Prothonotary John E. Slike Solicitor n 3 --1 S1921 CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 5TH DAY OF NOVEMBER 2007 AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R C P 230.2. BY THE COURT, CURTIS R. LONG PROTHONOTARY One Courthouse Square • Carlisle, Pennsylvania 17013 • (717) 240-6195 • Fax (717) 240-6573