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HomeMy WebLinkAbout08-1735 PAMELA BURKE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION -LAW ov-173 JOHN F. BURKE, NO. CIVIL TERM Defendant IN PRAECIPE TO ENTER JUDGMENT TO THE PROTHONOTARY: Pursuant to Pennsylvania Rules of Civil Procedure 1910.24, please enter Judgment against the Defendant, John F. Burke, and in favor of Plaintiff, Pamela Burke, in the amount of $317,831.56 as indicated on the attached Certification of Arrearage. Respectfully submitted, DATE: .d / fie, Esquire for or Plaintiff 200 North Hanover Street Carlisle, PA 17013 (717) 243-5551 (800) 347-5552 In the Court of Common Pleas of CUMBERLAND County, Pennsylvania DOMESTIC RELATIONS SECTION 13 N. HANOVER ST, P.O. BOX 320, CARLISLE, PA. 17013 Phone: (717) 240-6225 Fax: (717) 240-6248 MARCH 17, 2008 Plaintiff Name: PAMELA BURKE Defendant Name: JOHN F. BURKE Docket Number: 423 S 92 PACSES Case Number: 304000024 Other State ID Number: AX70439E1 Please note: All correspondence must include the PACSES Case Number. Certification of Arrearage I, R . J . SHADDAY , hereby certify that arrearages on the above case as of MARCH 17, 2008 total $ 317,831.56 through March 31, 2008. jkz-?_S-L /7,, Date Signatur In TesUmony V ivot, i h3m unto set my had and M seal c1 suite Court 0 Cadisles Pa 7 ?.1r Qif,?l 20Q ' erk of Courts cumt:alfl o Cou* Cumberland Counttj Ccrrrl.vicn Expirss First fzon;dv' hie"I'"il<ti3t"'j 20 LL- State Form # Form EN-003 Service Type M Worker ID 21005 C> r1a 0 71 Z> J v L o ? F:\FILES\Clierts\I 1306 Burke\I1306.I.petstrike.wpd Created: 9/20/04 0:06PM Revised: 414109 2:14PM Jennifer L. Spears, Esquire MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES I.D. 87445 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant PAMELA BURKE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. No. 08-1735 CIVIL TERM JOHN F. BURKE, Defendant CIVIL ACTION-LAW DEFENDANT'S PETITION TO CORRECT AND STRIKE JUDGMENT Defendant, John F. Burke, by and through his attorneys, Martson Law Offices, petitions this Honorable Court to strike the judgment entered in this matter, and in support thereof avers as follows: 1. On or about March 17, 2008, Plaintiff filed a Praecipe to Enter Judgment under Pa. R.C.P. 1910.24 and attached a "Certification of Arrearage." 2. Pa. R.C.P. 1910.24 is to be used for enforcement of overdue support and no overdue support exists in Pennsylvania by Defendant to Plaintiff. 3. Plaintiff failed to attach any Order of Court or allege that Defendant owes overdue support pursuant to a Pennsylvania Order of Court. 4. Defendant has paid all child support due at docket number 432 S 92, PACSES Number 304000024. 5. In fact, the Domestic Relations Office of Cumberland County sent a notice on or about February 25, 2008, to the Department of Social Services in Uniondale, New York stating that this Court has no jurisdiction over a New York State alimony order for enforcement. See attached form, Exhibit "A." 6. Plaintiff is attempting, incorrectly, to obtain a judgment in Pennsylvania of a New York Court Order for alimony. 7. New York State has proper exclusive and continuing jurisdiction over its alimony order and divorce decree. 8. It is believed, and therefore averred, that the divorce decree or any alimony order from New York has not been properly registered in Pennsylvania, and no foreign judgment has been properly domesticated in Pennsylvania. 9. In enforcement of the child support arrears (now paid in full), this Honorable Court has directed Defendant to file an action in New York to fight the alimony award. 10. Defendant's attorney in New York is Raymond S. Voulo, Esquire, is assisting Defendant in terminating the alimony order and alleviating the arrears. 11. Defendant believes this Court must, at the very least, stay execution on the judgment until the New York Court has decided on the matter. 12. No judge has ruled on a matter in this case at this docket, however Judges Hess and Ebert have been involved in the underlying Domestic Relations matter. 13. Attorney Griffie has been informed of this petition and does not concur. WHEREFORE, Defendant requests this Honorable Court to correct and strike the judgment entered in this matter, or in the alternative, stay the execution of the judgment until the New York Court has made a final determination on the validity and amount of the alimony award to Plaintiff. MARTSON LAW OFFICES By Mimi. Spears, Esquire 10 E t igh Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant Date: April 4, 2008 SUPPORT ENFORCEMENT TRANSMITTAL #2 - SUBSEQUENT ACTIONS Aoner IV-D Case [O]TANF smela Burke [[]]IV-E FOSTER CARE [[]]MEDICAID ONLY [[]]FORMER ASSISTANCE Respondent [[9] NEVER ASSISTANCE John F Burke Non-IV-D Case [[]] File Stamp To: (Contact Person, Agency, Address, Phone, Fax, E-mail) PETER WATSON CHILD SUPPORT INVESTIGATOR II DSS 60 Charles Lindbergh Blvd., suite #160 Uniondale, NY 11553-3686 Responding FIPS Code Responding IV-D Case No Responding Tribunal No State PA From: (Agency Name and Address) PENNSYLVANIA CENTRAL REGISTRY UNIT Initiating FIPS Code 36059 State NY PENNSYLVANIA BUREAU OF CHILD SUPPORT P.O. BOX 8018 Initiating IV-D Case No.AX70439E1 HARRISBURG, PA 17105 Initiating Tribunal No Send Payments To: NYS CHILD SUPPORT PROCESSING CENTER PO BOX 15363 ALBANY, NY 12212-5363 Payment FIPS Code 36059 Bank Account State with Continuing Exclusive Jurisdiction (CEJ) _ State NY Routing Code ACKNOWLEDGMENTS Return This Form to Initiating State [ Request Received and No Additional Information is Necessary & Additional Information Needed (See Remarks) I [ t4 Remarksmesponse? Y?2 • 0 -44 'L C_ [ ] Your Case has been Forwarded for Action to:?-°`"` 'I? ?---? Name of Worker Agency Name Address, FIPS Code Phone & Extension & Fax a /-? 5j -e S Date /. ??AbbA FAX 7 7 - yD G 2 -7/7 -.2 ?(,-) - C S-?e or Type) ?1 Telephone Number &Extension E-mail ?/r't " Tl S'rt b 6 A C-0 A 5, /? c? O M PAe 5ES. c d Child Support Enforcement Transmittal #2 - Subsequent Actions Return This Page To The Initiating Jurisdiction Page 2 of 2 EXHIBIT "A" VERIFICATION The foregoing Petition is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language of the document is that of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the document is that of counsel, I have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities, which provides that if I make knowingly false averments, I may be subject to criminal penalties. Jo . Burke F:\FILES\Clients\11306 Burke\I 1306. Lpetstnke.wpd CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Petition to Correct and Strike Judgment was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Bradley L. Griffie, Esquire Griffie & Associates 200 North Hanover Street Carlisle, PA 17013 MARTSON LAW OFFICES A, "i By IS- i a D. c enroad Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: 4/4/08 ?, .? t??-,y x r?t,? ,, ?` "?J i ?? ---1 3 ?_ -s, ?.. `??` ? °? PAMELA BURKE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW JOHN F. BURKE, Defendant NO. 08-1735 CIVIL TERM ORDER OF COURT AND NOW, this 11th day of April, 2008, upon consideration of Defendant's Petition To Correct and Strike Judgment, a Rule is hereby issued upon Plaintiff to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. BY THE COURT, ey Oler, r., J. Bradley L. Griffie, Esq. 200 North Hanover Street Carlisle, PA 17013 Attorney for Plaintiff ? Jennifer L. Spears, Esq. 10 East High Street Carlisle, PA 17013 Attorney for Defendant :rc Oor t tS /Yl.1611 L( 'y I??/d8 (? 081 HE 2 PAMELA BURKE, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW JOHN F. BURKE, NO. 08-1735 CIVIL TERM Defendant CIVIL ACTION -LAW NOTICE TO PLEAD You are hereby notified to file a written response to the within Preliminary Objections within twenty days (20) days from service hereof or a judgment may be entered against you. ?- r PAMELA BURKE, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION -LAW JOHN F. BURKE, : NO. 08-1735 CIVIL TERM Defendant : CIVIL ACTION -LAW PRELIMINARY OBJECTIONS AND NOW, comes Plaintiff, Pamela Burke, through her counsel, Bradley L. Griffie, Esquire and files the following Preliminary Objections. 1. Defendant has filed a Petition to Correct and Strike Judgment pursuant to Pa. R.C.P. No. 1910.24. 2. Defendant has directed his Petition to the Court of Common Pleas of Cumberland County and requested entry of Order in this matter. 3. Pa. R.C.P. No. 1910.24 clearly provides that any such Petition "initially shall be determined before a conference officer or hearing officer in the same manner as an original proceeding for support." 4. Defendant's Petition should be stricken for failure to comply with the Pennsylvania Rules of Civil Procedure. WHEREFORE, Plaintiff, through counsel, requests your Honorable Court to dismiss Defendant's Petition. submitted, L riffle, Esquire titioner nornorth for P Hanover Street Carlisle, PA 17013 (717) 243-5551 (800) 347-5552 PAMELA BURKE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION -LAW JOHN F. BURKE, NO. 08-1735 CIVIL TERM Defendant CIVIL ACTION -LAW CERTIFICATE OF SERVICE I, Bradley L. Griffie, Esquire hereby certify that I did, the 14th day of April, 2008, cause a copy of Plaintiff s Preliminary Objections to be served upon the Defendant, John F. Burke, by serving his attorney of record, Jennifer L. Spears, Esquire, by first class mail, postage prepaid, at the following addresses: Jennifer E. Spears, Esquire 10 East High Street Carlisle, PA 17013 DATE: y 1 4 /O 8- fiffie, Esquire Petitioner ? . ?= ? --# ° ? ? r ? c ' rz7 -„ _ ? ?, ` s' f _ F - ? „? . --P?: ?" ^ F:\FILES\CGeats\11306 Burke\ 11306. Larts Created: 9/20/04 0:06PM Revised: 4/18/08 1:24PM Jennifer L. Spears, Esquire MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES I.D. 87445 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant PAMELA BURKE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. JOHN F. BURKE, Defendant No. 08-1735 CIVIL TERM CIVIL ACTION-LAW DEFENDANT'S ANSWER TO PLAINTIFF'S PRELIMINARY OBJECTIONS Defendant, John F. Burke, by and through his attorneys, MARTSON LAW OFFICES, responds as follows to Plaintiffs Preliminary Objections: 1. Admitted. 2. Admitted 3. The Pa. Rules of Civil Procedure speak for themselves. No response is required. 4. Denied. The Rules states how the Defendant's petition should be handled, but Defendant did not fail to comply with the Rule. Furthermore, Judge Oler issued a Rule to Show Cause on April 11, 2008, therefore Plaintiff's Preliminary Objections are improper. Moreover, Rule 239.5 (b) states, "This Rule shall not apply to family law actions governed by Rules 1901 through 1940.9...." WHEREFORE, Defendant requests Your Honorable Court to dismiss Plaintiff's Preliminary Objections. MARTSON LAW OFFICES By 10 Edst High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant Date: April 18, 2008 CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Answer to Preliminary Objections was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Bradley L. Griffie, Esquire Griffie & Associates 200 North Hanover Street Carlisle, PA 17013 MARTSON LAW OFFICES By C-Tnbia D. Ec oad Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: April 18, 2008 ?-_? ?,? ?_ .:5 "; '> ,- t:?'.) ? ?? ?i ?_?_ ? ?7 p. . * N }. r "'? PAMELA BURKE, : IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. : CIVIL ACTION -LAW JOHN F. BURKE, NO. 08-1735 CIVIL TERM Defendant CIVIL ACTION -LAW NOTICE TO PLEAD You are hereby notified to file a written response to the within New Matter within twenty days (20) days from service hereof or a judgment may be entered against you. PAMELA BURKE, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION -LAW JOHN F. BURKE, NO. 08-1735 CIVIL TERM Defendant CIVIL ACTION -LAW PLAINTIFF'S ANSWER TO DEFENDANT'S PETITION TO CORRECT AND STRIKE JUDGMENT AND NOW, comes Plaintiff, Pamela Burke, by and through her counsel of record, Bradley L. Griffie, Esquire and the law firm of Griffie & Associates, and files the following Answer: 1. Admitted. 2. Denied. While it is admitted that the Pa. R.C.P. 1910.24 is used for enforcement of overdue support. It is denied that no overdue support is due in this matter as the Certification of Arrearage from the Cumberland County Domestic Relations Office clearly notes. 3. Denied. It is denied that Plaintiff failed to attach any Order of Court or allege that Defendant owes overdue support pursuant to a Pennsylvania Order of Court. It is averred, rather, that Pa. R.C.P. 1910.24(a) provides: The Prothonotary shall enter the judgment of record upon the proper docket and in the judgment index either at the direction of the court or upon praecipe of a party or the Domestic Relations Section. The judgment has been entered at the direction of the Domestic Relations Section and upon praecipe of a party. It is further averred that the Judgment was entered upon praecipe of a party. 4. Denied. It is denied that Defendant has paid all child support due at docket number 432 S 92, PACSES No. 304000024. It is averred, rather, that the referenced support case was forwarded from the courts in the State of New York for enforcement and collection purposes only and, as such, until the New York child support Order is satisfied, child support amounts are still due. 5. Admitted. 6. Denied. It is denied that Plaintiff is attempting, incorrectly, to obtain a judgment in Pennsylvania of a New York Court Order for alimony. It is averred, rather, that the Order for child support and alimony was forwarded to the Cumberland County Domestic Relations Office for enforcement and was accepted by the Cumberland County Domestic Relations Office for enforcement purposes. It is further averred that, as such, any arrears that were still due and owing on alimony or child support continue to be an arrearage amount that can be entered as judgment pursuant to Pa. R.C.P. 1910.24. 7. Admitted in part and denied in part. It is admitted that the state of New York has proper exclusive and continuing jurisdiction over its alimony Order and Divorce Decree. It is further averred, however, that the courts of the state of New York have properly forwarded their support and alimony Orders to the Court of Common Pleas of Cumberland County, the jurisdiction in which the Defendant resides, for enforcement and collection purposes and, as such, the Court of Common Pleas of Cumberland County, Pennsylvania, may accept the filing of the arrearage judgment. 8. Denied as stated. While the statement in paragraph number 8 may be the Defendant's belief, it is denied that the statements in that paragraph are accurate. It is averred, rather, that the alimony Order was, in fact, forwarded with the child support Order for collection and enforcement purposes from the state of New York to the Commonwealth of Pennsylvania through the Cumberland County Domestic Relations Section. As such, it was properly before the Court of Common Pleas of Cumberland County for collection purposes. It is further averred, as such, that the Certification of Arrearages is appropriate in this matter. 9. Denied. It is denied that in the enforcement of the child support arrears, the Court of Common Pleas of Cumberland County directed the Defendant to file an action in New York to fight the alimony award and, further, that any such direction or comment made by the court is unenforceable and irrelevant to these proceedings. It is further denied that the full amount of child support ordered under the New York Order has been paid in full. 10. Plaintiff is without sufficient knowledge or information to form a belief as to the truth to the averments set forth in paragraph 10 and they are, therefore, denied. It is further denied that there any actions pending in the state of New York to terminate the alimony Order or alleviate the arrearages. It is further averred, to Plaintiff's knowledge and understanding, that the only proceeding initiated in New York by the Defendant to terminate the alimony Order and alleviate the arrears resulted in a denial of that request as set forth in the Memorandum of the Supreme Court of the State of New York, Suffolk County, which Memorandum is attached hereto and incorporated herein as Exhibit "A". 11. Denied as stated. While the statements in paragraph 11 may be Defendant's belief, it is denied that his beliefs are accurate. It is further averred, however, that the Court should not intervene in this matter under any circumstances and certainly should not stay any execution on the judgment pending further action in the courts of New York. It is further averred that no action has been taken, to date, to initiate execution on the judgment and, therefore, any such action as is requested by Defendant would be premature. 12. Admitted. 13. Admitted. WHEREFORE, Petitioner requests your Honorable Court to dismiss Defendant's Petition. NEW MATTER 14. Plaintiff's Answers to paragraphs 1 through 13 of Defendant's Petition are incorporated herein by reference as if set forth in their full text. 15. Defendant has directed his Petition to the Court of Common Pleas of Cumberland County and requested entry of an Order in this matter. 16. Pennsylvania Rules of Civil Procedure No. 1910.24 clearly provides that any such Petition "initially shall be determined before a conference officer or hearing officer in the same manner as an original proceeding for support." 17. Defendant's Petition should be stricken and dismissed for failure to comply with the Pennsylvania Rules of Civil Procedure. WHEREFORE, Plaintiff requests your Honorable Court to dismiss and strike Defendant's Petition. Respectfully submitted, riffle, Esquire kYr e /eplaintiff anover Street Carlisle, PA 17013 (717) 243-5551 (800) 347-5552 PAMELA BURKE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION - LAW JOHN F. BURKE, NO. 08-1735 CIVIL TERM Defendant CIVIL ACTION -LAW CERTIFICATE OF SERVICE I, Bradley L. Griffie, Esquire hereby certify that I did, the _eday of May, 2008, cause a copy of Plaintiff's Answer to Defendant's Petition to Correct and Strike Judgment and New Matter to be served upon the Defendant, John F. Burke, by serving his attorney of record by first class mail, postage prepaid, at the following addresses: Jennifer L. Spears, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 DATE: ?t IQ )6 fiffie, Esquire Plaintiff I verify that the statements made in the foregoing document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. DATE: ? G,-??,-? ? , ,, u PAMELA BUR MEMORANDUM SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK: I.A.S. PART XXXV PAMELA BURKE, Plaintiff, BY: McNULTY, J. INDEX NO: 86-20091 -against- JOHN F. BURKE, Defendant. No Appearance Raymond S. Voulo, Esq. by the Plaintiff 143 Willis Avenue Mineola, New York 11501 Atty for Defendant -------------------------------------------------------------- Pursuant to the order of this Court dated October 10, 1997 (McNulty,J.), the defendant's unopposed application for a downward modification of his support obligations was set down for a hearing. Upon the plaintiff's failure to appear for a pre-hearing conference, the Court directed the defendant to serve a Notice of Inquest upon the plaintiff. On April 9, 1998, the plaintiff failed to appear after being seared with said Notice and the matter proceeded to Inquest. The Judgment of this Court dated September 5, 1991 (Dunn,J.) directed the defendant to pay to the plaintiff the sum of $360.00 __per week_ as maintenance-and the -.-08-per-week as child - support for each of th^ two children of the marriage, to wit Justin Burke, born on September 24, 1976 and Loni Burke, born on No'ver,Wer 22, ..j ; b . Lai4 u11Cti.1.lUlla were the result or a Lriai held before the Hon. John J. Dunn on July 27, 1990 and August 30, 1990 at whir'.i.the defendant failed to appear. The Court found that the defendant's business, American Library Consultants, Inc. had a value of $200,054.00 and that the defendant derived an income of $1::x,000.00 per year from same. The Court also found that the defendant had not complied with the pendente lite order of this Court dated July 7, 1989 (Dunn, J.) which directed him to pay maintenance and child support in the sum of $575.00 per week and that he was in arrears in the amount of $52,296.00 as of August 31, 1990. 4 Exhibit "A" BURKE 86-20091 The defendant never applied to this Court to vacate the aforesaid Judgment which was entered as a result of his default. The defendant's instant application is based upon his alleged change of financial circumstances. The defendant has remarried and there are no children of his current marriage. He and his wife have a business which moves libraries. The defendant claims that his income has substantially decreased. However, he failed to provide the Court with documentation relating to his current income and he was unable to recall how much he earned in 1997. The defendant also claims that he suffers from health problems, including those which are the result of a 1987 accident which crushed his ankle. However, he also failed to provide the Court with any documentation relating to same. The Court finds that the defendant lacked credibility in rBgard to his testimony concerning his f"nancial circumstances. ze defendant's claims of financial hardship were not supported by sufficient documentation and his testimony was vague and not worthy of belief, Adinolfi v. Adinolfi, 242 A.D. 2d 311 (2nd Dept., 1997). The Court also notes that the defendant has a history of not complying with either the orders of this court or with the orders of the Pennsylvania courts. The burden of establishing the existence of a substantial change of circumstances is on the party seeking the modification, Klapper v. KZapper, 204 A.D.2d 518, 611 N.Y.S.2d 657 (2nd Dept.,1994); Rosen v. Rosen, 1993 A.D.2d 661, 598 N.Y.S.2d 13 (2nd Dept.,1993). Based upon the foregoing, the Court finds that the defendant failed to meet his burden. Accordingly, the defendant's application is denied in all respects. The foregoing constitutes the decision and or er f this court. -Irn 11-j- ( - MARION T. McNULTY J.S.c. Dated: June 29, 1998 Central Islip, New York 5 N t? 1 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) PAMELA BURKE VS. JOHN F. BURKE -7 1>?5 No. 08 -?hW Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Petition to Correct and Strike Judgment 2. Identify all counsel who will argue cases: (a) for plaintiffs: Bradley L._ Griffie, Esquire (Name and Address) 200 North Hanover Street, Carlisle, PA 17013 (b) for defendants: Jennifer L. Spears, Esquire (Name and Address) 10 East High Street, Carlisle, PA 17013 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: n_?_t_? nn nnnn Defendant Attorney for Date: June 19, 2008 INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. Jennifer T., Rears_ Esquire Print your name P-l S3 JJ F:\FILES\Clients\11306 Burke\11306.1.enseewmetter.wpd Created: 9/20/04 0:06PM Revised: 6/18/08 10:51 AM Jennifer L. Spears, Esquire MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES I.D. 87445 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant PAMELA BURKE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. : No. 08-1735 CIVIL TERM JOHN F. BURKE, Defendant CIVIL ACTION-LAW DEFENDANT'S ANSWER TO PLAINTIFF'S NEW MATTER Defendant, John F. Burke, by and through his attorneys, MARTSON LAW OFFICES, responds as follows to Plaintiff's New Matter: 14. No response required. 15. Admitted 16. The Pa. Rules of Civil Procedure speak for themselves. No response is required. 17. Denied. The Rules states how the Defendant's petition should be handled, but Defendant did not fail to comply with the Rule. Furthermore, Judge Oler issued a Rule to Show Cause on April 11, 2008, therefore Plaintiff's Preliminary Objections are improper. Moreover, Rule 239.5 (b) states, "This Rule shall not apply to family law actions governed by Rules 1901 through 1940.9...." WHEREFORE, Defendant requests Your Honorable Court to dismiss Plaintiffs New Matter. MARTSON LAW OFFICES By v v J if r pears, Esquire 10 Eat High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant Date: June 18, 2008 VERIFICATION The foregoing Answer is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language of the document is that of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the document is that of counsel, I have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities, which provides that if I make knowingly false averments, I may be subject to criminal penalties. ohn F. Burke CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Answer to New Matter was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Bradley L. Griffie, Esquire Griffie & Associates 200 North Hanover Street Carlisle, PA 17013 MARTSON LAW OFFICES cia D. Eckenroad Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: June ", 2008 C3 r.a m r CD PAMELA BURKE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 08-1735 CIVIL TERM JOHN F. BURKE, CIVIL ACTION -LAW Defendant IN RE: DEFENDANT'S PETITION TO CORRECT AND STRIKE JUDGMENT BEFORE OLER, JR., J. AND EBERT, J. ORDER OF COURT AND NOW, this 9th day of January, 2009, upon consideration of the Petition to Correct and Strike Judgment, the briefs presented by the parties, and after argument, IT IS HEREBY ORDERED: The Petition to Correct and Strike Judgment is GRANTED. BY THE COURT, 11\k ?A4 - M. L. Ebert, Jr. J. ?Bradley L. Griffie, Esquire Attorney for Plaintiff 200 North Hanover Street Carlisle, PA 17013 'Jennifer L. Spears, Esquire Attorney for Defendant 10 East High Street Carlisle, PA 17013 (ly I'ES /n--tt ?, ?=q MNVftIAM fi I cZ Ind 6- NVP 689x ,Wjo . "Old .40 PAMELA BURKE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 08-1735 CIVIL TERM JOHN F. BURKE, CIVIL ACTION -LAW Defendant IN RE: DEFENDANT'S PETITION TO CORRECT AND STRIKE JUDGMENT BEFORE OLER, JR., J. AND EBERT, J. OPINION AND ORDER OF COURT Ebert, J., January 9, 2009 - In this case involving support payments stemming from a Judgment of Divorce issued by a New York court, Defendant John Burke brings a Petition to Correct and Strike Judgment in response to Plaintiff Pamela Burke's Praecipe to Enter Judgment. BACKGROUND The parties to this action divorced in the state of New York, and a support order was issued. Plaintiff now seeks to enforce the support payment against the Defendant in Pennsylvania. Plaintiff filed a Praecipe to Enter Judgment, to which a Certificate of Arrearage was attached.' Defendant filed a Petition to Correct and Strike Judgment, asserting that Plaintiff failed to comply with Pennsylvania statutes governing the registration and enforcement of foreign judgments. Defendant also averred that he is currently litigating the matter in New York. Defendant attached a document ("Exhibit A") to the Petition which was signed by a conference officer of the Cumberland County Domestic Relations Section of the Court of Common Pleas of Cumberland County. Remarks on the document read: "The remaining balance is for ALIMONY. This Court 1 Praecipe to Enter Judgment, filed March 17, 2008. 2 has no jurisdiction over a N.Y. alimony order for enforcement. Please provide certified accounting of payments made for child support."2 That document was signed by Conference Officer R. J. Shadday of the Court on February 25, 2008. On March 17, 2008, the Plaintiff attached a Certificate of Arrearage in the amount of $317,831.56 signed by Conference Officer Shadday to her praecipe to enter Judgment and filed it with the Prothonotary. After Defendant filed the Petition to Strike and Correct Judgment, Plaintiff filed an Answer with New Matter.3 Plaintiff also filed Preliminary Objections to Defendant's Petition, arguing that according to Pa. R.C.P. 1910.24 (2008) the Petition should first be heard before a conference or hearing officer.4 Defendant answered Plaintiff's New Matter, stating that Defendant did comply with the Pennsylvania Rules of Civil Procedure and that Plaintiff's Preliminary Objections were improper.5 DISCUSSION Defendant alleges in his Petition to Correct and Strike Judgment that no overdue support exists in Pennsylvania.6 Defendant also asserts that the support in question is alimony, not child support.7 The cornerstone of Defendant's argument is that the divorce decree or support order from New York has not yet been registered in Pennsylvania. He argues that until the order from New York is domesticated in Pennsylvania, he may not be made to pay support in Pennsylvania. Additionally, since Defendant maintains that 2 Defendant's Petition to Correct and Strike Judgment (hereinafter "Petition at -"), Exhibit A, filed April 11, 2008. 3 Plaintiff's Answer to Defendant's Petition to Correct and Strike Judgment, filed May 9, 2008. 4 Plaintiffs Preliminary Objections at 1, filed April 14, 2008. 5 Defendant's Answer to Plaintiffs New Matter at 1, filed June 20, 2008. 6 Petition at 1. Id. 3 since a court in New York is presently considering the matter that this Court should wait until that court has made a final decision. Defendant suggests that this Court consider 23 Pa. C.S.A. § 3705 (2008), 23 Pa. C.S.A. §§ 7601-7604 (2008), and 42 Pa. C.S.A. § 4306 (2008). 23 Pa. C.S.A. § 3705 is titled "Enforcement of Foreign Decrees." The general rule referred to in subsection (a) states that "the obligee of the decree may petition the court where the obligor or the property of the obligor is found to register, adopt as its own and enforce the decree as a properly issued and authenticated decree of a sister state or territory." 23 Pa. C.S.A. § 3705(a). Subsection (b) states that 42 Pa. C.S.A. § 4306 is always available, notwithstanding subsection (a). 23 Pa. C.S.A. § 3705(b). 42 Pa. C.S.A. § 4306 is the Uniform Enforcement of Foreign Judgments Act, which addresses the filing and status of foreign judgments. 42 Pa. C.S.A. § 4306. Subsection (b) states: A copy of any foreign judgment including the docket entries incidental thereto authenticated in accordance with act of Congress or this title may be filed in the office of the clerk of any court of common pleas of this Commonwealth. The clerk shall treat the foreign judgment in the same manner as a judgment of any court of common pleas of this Commonwealth. A judgment so filed shall be a lien as of the date of filing and shall have the same effect and be subject to the same procedures, defenses and proceedings for reopening, vacating, or staying as a judgment of any court of common pleas of this Commonwealth and may be enforced or satisfied in like manner. 42 Pa. C.S.A. § 4306(b). Additionally, Defendant references Ward v. Price, which interpreted § 4306(b). Ward v. Price, 814 A.2d 262, 264 (Pa. Super. 2002). In Ward, the court held that the statute to register foreign judgments must be strictly followed. Id. Failure to attach an authentic copy of a foreign judgment is fatal, and a motion to strike in such a case must be granted. Id. Defendant suggests Ward v. Price is analogous to the case at bar. 4 Plaintiff, however, argues that the controlling authority is Pa. R.C.P. 1910.24. She argues that she has met the requirements of Pa. R.C.P. 1910.24(a), which states: On and after the date is due, overdue support shall constitute a judgment against the obligor as provided by law. The prothonotary shall enter the judgment of record upon the proper docket and in the judgment index either at the direction of the court or upon praecipe of a party or the domestic relations section. The judgment must be accompanied by a written certification showing that obligor owes overdue support pursuant to an order of court. Pa. R.C.P. 1910.24(a). Plaintiff presented certification to the Prothonotary from the Cumberland County Domestic Relations Office stating an arrearage amount that was due. Plaintiff also filed a Praecipe to Enter Judgment. Plaintiff urges the dismissal of Defendant's Petition because Defendant brought his Petition before the Court of Common Pleas instead of before the conference officer or hearing officer, as specified by Pa. R.C.P. 1910.24(b). Plaintiff also mentions a note that follows Pa. R.C.P. 1910.24(b), which states: "It is important to note that the petition to strike or open a judgment used in civil practice is not adopted here." Pa. R.C.P. 1910.24(b)(note). As the Defendant has filed a Petition to Correct and Strike Judgment, Plaintiff argues that Defendant has failed to comply with the Pennsylvania Rules of Civil Procedure. Additionally, Plaintiff contends that there is no factual basis in the record for Defendant's claim that the order is for alimony or that the case is currently being litigated in New York. In summary, Plaintiff asks the Court to dismiss Defendant's Petition to Correct and Strike Judgment for failure to comply with the Pennsylvania Rules of Civil Procedure, regarding presentation of alleged facts not in the record and failure to state a claim upon which relief may be granted.8 While the details regarding current litigation of the support order in New York are uncertain, both parties agree that a New York court issued a support order. The order does not have immediate effect in Pennsylvania because it is a foreign judgment. If the order is to be treated as a Pennsylvania judgment, it must first be domesticated. Plaintiff attached written certification of the support owed to her Praecipe to Enter Judgment, in accordance with Pa. R.C.P. 1910.24. This would have sufficed for a domestic judgment,9 but a different procedure is required for the domestication of foreign judgments. 42 Pa. C.S.A. § 4306(b) and Ward v. Price require that an authentic copy of the other state's judgment be submitted to the Prothonotary.10 Plaintiff submitted a Certificate of Arrearages signed by an agent of the Cumberland County Domestic Relations Section, not an authenticated copy of the New York order. As Defendant points out, 23 Pa. C.S.A. § 3705(a) states that an obligee may petition a Pennsylvania court to register and adopt as its own an order from another state. 42 Pa. C.S.A. § 4306(b), as referenced above, details the necessary procedure for registering foreign judgments. Plaintiff did not follow this procedure because she did not include an authentic copy of the New York order for support. s Id. at 4-5. 9 See Pa. R.C.P. 1910.24 (2008). 10 See 42 Pa. C.S.A. § 4306(b) (2008); See also Ward v. Price, 814 A.2d 262, 264 (Pa. Super. 2002). 6 CONCLUSION Plaintiff did not properly register the foreign judgment in Pennsylvania because she failed to attach an authentic copy of the New York court order as required by 42 Pa. C.S.A. § 4306(b). Defendant's Petition to Correct and Strike Judgment is therefore granted. Accordingly, the following Order shall be entered: ORDER OF COURT AND NOW, this 9th day of January, 2009, upon consideration of the Petition to Correct and Strike Judgment, the briefs presented by the parties, and after argument, IT IS HEREBY ORDERED: The Petition to Correct and Strike Judgment is GRANTED. BY THE COURT, \?-? 4 \ M. L. Ebert, Jr. J. Bradley L. Griffie, Esquire Attorney for Plaintiff 200 North Hanover Street Carlisle, PA 17013 Jennifer L. Spears, Esquire Attorney for Defendant 10 East High Street Carlisle, PA 17013 7