Loading...
HomeMy WebLinkAbout04-2149i ELIZABETH A. WIAN, Plaintiff V. VINCENT C. McCUE, Defendant TO: Vincent C. McCue IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2004- ,2147 CIVIL TERM CIVIL ACTION EQUITY NOTICE OF PENDENCY OF PARTITION PROCEEDINGS Notice is hereby given that an action has been commenced in the above-entitled court, which action is numbered and entitled as set forth in the heading hereof, on the complaint of the above-named plaintiff against the above-named defendant, for the purpose of obtaining a partition of the premises therein described among the owners thereof, or, in the alternative, for a sale thereof under the direction of the court, and a division of the proceeds of such sale among such owners, according to their respective rights. Said premises are situate in the County of Cumberland, Commonwealth of Pennsylvania, and are more particularly described as follows: ALL that certain lot of land situate in the Township of Hampden, County of Cumberland and State of Pennsylvania, more particularly bounded and described as follows, to wit: BEGINNING at an iron pin in the intersection of the northern line of West Circle and the western line of Point Ridge Drive, as shown on the hereinafter mentioned Plan of Lots; thence South eighty-three (83) degrees five (5) minutes West along the northern line of West Circle one hundred ten (110) feet to a point; thence North twenty (20) degrees seven (7) minutes West along the eastern line of Lot No. 8, as shown on the said Plan, one hundred seventy-four and forty-five hundredths (174.45) feet to a stake; thence North eighty-three (83) degrees five (5) minutes East along the southerly line of Lot No. 10, as shown on said Plan, one hundred fifty (150) feet to an iron pin at the western line of Point Ridge Drive, now known as St. Johns Drive; thence South six (6) degrees fifty-five (55) minutes East, along the western line of Point Ridge Drive one hundred seventy (170) feet to the place of BEGINNING. BEING Lot No. 9 as shown on Plan of Lots, Section 1, Point Ridge Farm, Hampden Township, Cumberland County, Pennsylvania, said Plan being recorded in the Cumberland County Recorder's Office in Plan Book 8, Page 2. HAVING thereon erected a one story brick ranch dwelling with attached two car garage. BEING the same premises which Ronald P. Guschel and Mary E. Guschel, his wife, by their deed dated May 11, 1960 and recorded in the Recorder of Deeds Office in and for Cumberland County, Pennsylvania, in Deed Book 19- U, Page 560 granted and conveyed unto Vincent C. McCue and Elizabeth A. Wien, formerly Elizabeth A. McCue. Robert L. O'Brien, Esquire Dated: 5)11 16 -f ELIZABETH A. WIAN, Plaintiff V. VINCENT C. McCUE, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA NO. 2004- CIVIL TERM CIVIL ACTION - IN EQUITY 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 an 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 complaint or for any other claim or relief requested by the plaintiff. 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. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 ELIZABETH A. WIAN, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2004- aIq( -@+WL TERM VINCENT C. McCUE, : CIVIL ACTIO - IN EQUITY Defendant COMPLAINT Plaintiff is Elizabeth A. Wian, an adult individual who resides at 36 Greenfield Drive, Carlisle, Cumberland County, Pennsylvania 17013. 2. Defendant is Vincent C. McCue, an adult individual who resides at 460 St. John Drive, Camp Hill, Cumberland County, Pennsylvania. 3. Plaintiff and Defendant are co-owners and co-tenants of a certain tract of land located in Hampden Township that is known and numbered as 460 St. John Drive, Camp Hill, PA, and described as follows: ALL that certain lot of land situate in the Township of Hampden, County of Cumberland and State of Pennsylvania, more particularly bounded and described as follows, to wit: BEGINNING at an iron pin in the intersection of the northern line of West Circle and the western line of Point Ridge Drive, as shown on the hereinafter mentioned Plan of Lots; thence South eighty-three (83) degrees five (5) minutes West along the northern line of West Circle one hundred ten (110) feet to a point; thence North twenty (20) degrees seven (7) minutes West along the eastern line of Lot No. 8, as shown on the said Plan, one hundred seventy-four and forty-five hundredths (174.45) feet to a stake; thence North eighty-three (83) degrees five (5) minutes East along the southerly line of Lot No. 10, as shown on said Plan, one hundred fifty (150) feet to an iron pin at the western line of Point Ridge Drive, now known as St. Johns Drive; thence South six (6) degrees fifty-five (55) minutes East, along the western line of Point Ridge Drive one hundred seventy (170) feet to the place of BEGINNING. BEING Lot No. 9 as shown on Plan of Lots, Section 1, Point Ridge Farm, Hampden Township, Cumberland County, Pennsylvania, said Plan being recorded in the Cumberland County Recorder's Office in Plan Book 8, Page 2. HAVING thereon erected a one story brick ranch dwelling with attached two car garage. BEING the same premises which Ronald P. Guschel and Mary E. Guschel, his wife, by their deed dated May 11, 1960 and recorded in the Recorder of Deeds Office in and for Cumberland County, Pennsylvania, in Deed Book 19-U, Page 560 granted and conveyed unto Vincent C. McCue and Elizabeth A. Wian, formerly Elizabeth A. McCue. 4. The aforementioned real estate cannot be divided without prejudice to or spoiling the whole. Accordingly, Plaintiff requests that the property be sold. 5. The Defendant's one half interest is subject to the following liens: A. Vivian Brannen Executrix of the Estate of Jeanne Garman vs. Vincent McCue; Nos. 1996-01244, 3/7/96, revived 2002-04025, 8/23/02, $35,000. B. Kim Tushak vs. Vincent McCue; No. 1999-06295,11/16/99, $1,289.75. C. Cumberland County Adult Probation/Federal Tax Lien vs. Vincent McCue; No. 2003-05513, 10/17/03, $12,484.40 6. The Plaintiffs one half interest is not subject to any liens. 7. The Defendant has had the sole and exclusive use of the property since 1981 and the Plaintiff makes claim for one half of the reasonable rental value of said real estate. 8. This Court has alternate jurisdiction pursuant to a divorce filing, No. 1997- 6566, that was bifurcated per Order dated 5/18/98. 9. Plaintiff desires to proceed with the partition action because the Executrix of the Estate of Jeanne Garman intends to execute on the underlying judgment of $35,000 plus interest, against the share of Vincent McCue and that matter along with the subsequent liens to Kim Tuschak and the IRS leave very little equity, if any to the Defendant. According to the holding in Bayer vs. Bayer, 65 Pa. D. & C. 2d 615 (1974) a judgment entered against one spouse prior to the entry of a divorce becomes a lien against that spouse's interest upon the entry of a divorce. The divorce was entered 5/12/98 and the bifurcation Order on the property issue was entered 5118/98. WHEREFORE, Plaintiff respectfully requests that this honorable Court order and direct the sale of the property be sold as the Court may direct, payment from the Defendant's proceeds to the Plaintiff for the reasonable rental value of her interest since 1981 and such other matters as are just and reasonable. Respectfully submitted, O'BRIEN, BARIC & SCHERER By: Robert L. O'Brien, Esquire Attorney for Plaintiff I. D. # 28351 17 West South Street Carlisle, Pennsylvania 17013 VERIFICATION I verify that the statements made in the foregoing Complaint are true and correct. I understand that false statements made herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities. Date: J0 41 'f?4alll- Ile- vElizabeth A. Wian rlo.dir/clients/wian/com plaintpar ?n o? J SHERIFF'S RETURN - REGULAR, fl. CASE NO: 2004-02149 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WIAN ELIZABETH A VS MCCUE VINCENT C VALERIE WEARY Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - EQUITY was served upon MCCUE VINCENT C the DEFENDANT , at 2025:00 HOURS, on the 18th day of May , 2004 at 460 ST JOHN DRIVE CAMP HILL, PA 17011 by handing to MARVIN WAYNE, ROOMMATE a true and attested copy of COMPLAINT - EQUITY NOTICE OF PENDENCY OF PARTITION PROCEEDINGS together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 8.97 Affidavit .00 Surcharge 10.00 .00 36.97 Sworn and Subscribed to before me this .2'Y1f-' day of ?A.07 'Pft`f A.D. a )?U& . A prothonotary So Answers: R. Thomas Kline 05/19/2004 OBRIEN BARIC SCHERER By: Deput Sheriff Elizabeth A. Wian, IN THE COURT OF COMMON PLEAS plaintiff OF CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2004-21,49 CIVIL TERM Vincent C. McCue, Defendant CIVIL ACTION-IN EQUITY SUGGESTION OF BANKRUPTCY To the Prothonotary: Please file in the above captioned case the Suggestion of'Bankruptcy as Evidence that the Defendant, Vincent C. McCue, in this case has filed for bankruptcy protection under Chapter 13 of the United States Bankruptcy Code on June 4, 2004 at Docket No. 1-04-03450-MDF. METZGER WICKERSHAM KNAUSS & ERB, P.C. r. By Y Steven P. Miner, Esquire I.D. #: 38901 3211 N. Front Street PO Box 5300 Harrisburg, PA 17110-0300 Dated: June A 1 2004 306458-/ Elizabeth A. Winn, IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY, PENNSYLVANIA V. Vincent C. McCue, NO. 2004-2149 CIVIL TERM Defendant CIVIL ACTION-IN EQUITY CERTIFICATE OF SERVICE AND NOW, this `? day of June, 2004, I, Steven P. Miner, Esq., of Metzger, Wickersham, Knauss & Erb, P.C., attorneys for Defendant, hereby certify that I served the foregoing Suggestion of Bankruptcy this day by depositing the same in the United States mail, postage prepaid, in Harrisburg, Pennsylvania, addressed to: Robert L. O'Brien, Esq. 17 W. South St. Carlisle, PA 17013 By: en .Miner, Esquire 4V 306458-1 ??? TI ) -nfTl I.D FJ ELIZABETH A. WIAN, Plaintiff V. VINCENT C. McCUE, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2004- 2149 CIVIL TERM CIVIL ACTION - IN EQUITY PETITION FOR DETERMINATION OF FACTUAL ISSUES 1. Attached hereto is the Order and Opinion issued by the Honorable Mary D. France, Bankruptcy Judge, in reference to the above captioned action. 2. The Bankruptcy Court has granted relief from the automatic stay and referred matters pending within the jurisdiction of the state court for certain factual determinations. Those determinations will assist the Bankruptcy Court in proceeding with the Defendant's bankruptcy. 3. The Plaintiff / Petitioner wishes to arrange for an appraisal of the real estate to assist the court. Wherefore, the Plaintiff / Petitioner respectfully requests that the Court set a hearing on this matter to determine the liquidated value of her interest in the property and Order the Defendant to co-operate in the appraisal process. Respectfully submitted, O'BRIEN, BARIC & SCHERER By: Robert L. O'Brien, Esquire Attorney for Plaintiff I.D. # 28351 19 West South Street Carlisle, Pennsylvania 17013 717 - 249 - 6873 CERTIFICATE OF SERVICE. I hereby certify that on September 1, 2005, I, Robert L. O'Brien, Esquire of O'Brien, Baric & Scherer, did serve a copy of the Petition For Factual Determination, by first class U.S. mail, postage prepaid, to the party listed below, as follows: Steven P. Miner, Esquire Metzger Wickersham 3211 North Front Street Harrisburg, Pennsylvania 17110 Vincent C. McCue 460 St. John's Drive Camp Hill, Pennsylvania 17011 Robertert L. O'Brien, IN THE UNITED STATES BANKRUPTCY COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA In re: Chapter 13 VINCENT C. McCUE, Case No. 1-04-3450MDF Debtor ELIZABETH WIAN, Movant V. VINCENT C. McCUE, Respondent ORDER AND NOW, at Harrisburg, in said District, the motion for relief from stay filed by Elizabeth Wian is hereby GRANTED IN PART. Movant is granted relief from the stay to proceed in the Court of Common Pleas of Cumberland County to determine the liquidated value of Movant's interest in the premises located at 460 North St. John's Road, Camp Hill, Cumberland County, Pennsylvania. BY THE COURT, BM j Date: November 17, 2004 This electronic order is signed and filed on the same date. IN THE UNITED STATES BANKRUPTCY COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA IN RE: VINCENT C. McCUE, * Chapter 13 Debtor * Case No.: 1-04-03450MDF ELIZABETH WIAN, Movant V. * VINCENT C. McCUE, Respondent O INION Procedural and Factual History Before me is the motion of Elizabeth Wian ("Movant") who seeks relief from the automatic stay to pursue a complaint she filed pre-petition in state court to partition real estate she owns with Vincent McCue ("Debtor"). The parties were married for approximately twenty years before they separated in 1981. During their marriage they acquired a home located in Camp Hill, Pennsylvania, which Debtor retained as his residence when the parties divorced on May 18, 1998. The divorce was bifurcated, and no subsequent order to divide marital property has been entered by the state court. The mortgage on the residence was satisfied before the parties separated in 1981. After their separation, Debtor assumed responsibility for all taxes and other expenses related to the maintenance and preservation of the property. Debtor failed to pay real estate taxes during several tax periods, and the property was listed for tax sale more than once. However, each time Debtor managed to avoid losing the home by paying the amount due prior to the sale. For tax purposes, the property has been assessed at $180,000.00, and Debtor's schedules indicate that the Debtor's interest in the property is $90,030.00. Debtor resides in the home, but also uses the property as a halfway house, which he has named "McCue's Mission." As McCue's Mission, Debtor provides transitional housing for persons with substance abuse problems. Debtor has not maintained property insurance on the home since at least 1992, and as of the date of the hearing, the property remained uninsured by Debtor. To protect her interest, Movant recently purchased insurance for her interest in the property. On May 14, 2004, Movant filed a complaint in the Court of Common Pleas of Cumberland County seeking to compel the sale of the Camp Hill property. Debtor filed his petition under Chapter 13 on June 4, 2004. On his schedules Debtor listed the Estate of Jeanne Garman as the only creditor holding a claim secured by his residence. The claim is based on a judgment entered state court in 1995 against the Debtor in the amount of $35,000.00. With interest computed since the date of entry of the judgment, the Garman estate now has asserted a claim in the amount of $64,058.78. Debtor's chapter 13 plan proposes to pay the Garman claim through payments to the trustee of $660.00 per month for sixty months ($39,600.00). According to Debtor's schedules, he has income of $1,740.00 per month and expenses of $1,555.00 per month. The Standing Chapter 13 Trustee has objected to the plan on the basis that it is underfunded. Debtor has not filed an answer to the Trustee's objection, and no hearing has been scheduled. A hearing on this matter was held on September 17, 2004. The parties were given an opportunity to file briefs within thirty days of the hearing, but only Debtor responded to the invitation. The matter is ready for decision.' Discussion Motions for relief from stay are governed by 11 U.S.C. §362(d), which provides that relief can be granted "(1) for cause, including the lack of adequate, protection" or "(2) if the debtor does not have equity in [the property subject to the motion] and [it] is not necessary for an effective reorganization." Debtor has equity in the property so it clear that subsection (d)(2) does not apply in the instant case; therefore, Movant must proceed under subsection (d)(1). Under subsection (d)(1), a movant bears the burden of making an initial showing of cause. In re Telegroup, Inc., 237 B.R. 87, 91 (Bankr. D. N.J. 1999); In re Holly's, Inc., 140 B.R. 643 (Bankr. W.D. Mich. 1992). Debtor bears the burden of proving that Movant's interest is adequately protected such that relief is unnecessary. See, 11 U.S.C. §362(g)(2). In Pennsylvania, "[w]henever married persons holding property as tenants by the entireties are divorced, they shall, except as otherwise provided by [court order], thereafter hold the property as tenants in common of equal one-half shares in value." 23 Pa.C.S.A. §3507(a). When Movant and Debtor divorced in 1998 their interest in the former marital residence as tenants by the entirety was converted to a tenancy in common. When a tenant in common files a petition under the Bankruptcy Code his undivided interest becomes property of the estate under section 541(a)(1). In re An Chin Kim, 288 B.R. 431 (Bankr. D. Md. 2002) (Property that debtor owned as joint tenant with his mother as of commencement of his Chapter 7 case was thereafter I have jurisdiction to hear this matter pursuant to 28 U.S.C. §§157 and 1334. This matter is core pursuant to 28 U.S.C. § 157(b)(2)(A),(G) and (O). This Opinion constitutes the findings of fact and conclusions of law made under Fed. R. Bankr. P. 7052. owned as tenants in common, with debtor's one-half interest in property being included in property of the estate.) A debtor's interest becomes part of the bankruptcy estate, but it is subject to the same equities in favor of the cotenant enjoyed by a creditor of the debtor holding a judicial lien. See Collier on Bankruptcy, 15`s Edition (Revised), ¶541.05[6] [c] (citing In re McConnell, 197 F. 438 (N.D. N.Y. 1912)). Thus, in the instant case, Movant is entitled to receive the same treatment in Debtor's case afforded to a creditor with an unavoidable judicial lien. A judicial lien creditor whose interest is not otherwise avoidable in bankruptcy is generally entitled to adequate protection of her interest in the property against which she holds a lien. 11 U.S.C. §§361 - 363. The purpose of providing her with adequate protection is to ensure that she is able to receive "the indubitable equivalent" of her "lien" even while she is prevented by the automatic stay from acting on the lien. United Savings Association of Texas v. Timbers of Inwood Forests Associates, Ltd., 484 U.S. 365, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988). Adequate protection may be provided in several ways. A debtor may make cash payments or provide an additional lien to compensate the creditor for the decline in the value of the collateral. 11 U.S.C. § 361. Adequate protection also can be provided in the form of an "equity cushion" created by the value of a property over and above the amount of encumbrances against it. "Although the existence of an equity cushion as a method of adequate protection is not specifically mentioned in §361, it is the classic form of protection for a secured debt justifying the restraint of lien enforcement by a bankruptcy court." In re WRB West Associates Joint Venture, 106 B.R. 215, 219 - 220 (Bankr. D. Mont. 1989) (citing In re Curtis, 9 B.R. 110, 112 (Bankr. E.D. Pa. 1981)). Debtor has not provided adequate protection to Movant in his Chapter 13 plan by making cash payments or by subjecting his interest in the property to a lien in favor of Movant. But Debtor's interest in the property remains as a possible source of adequate protection. Movant's interest in the property is unencumbered, but Debtor's interest is subject to the judgment lien of the Garman Estate. Debtor valued the property at $180,000, and Movant estimated the property was worth approximately $200,000. Movant, however, admitted that she had not seen the home recently and had no first-hand knowledge of its condition. Based upon the Debtor's greater familiarity with the real estate, the Court will assume for the purposes of this motion that the property should be valued at $180,000 as of the date of the filing of the petition. Assuming an equal division of the value of the property, the interest of each party is approximately $90,000. When the lien of the Garman Estate is subtracted from the value of Debtor's interest in the property, even if the Estate's claim is allowed at $64, 058.78, Debtor would retain approximately $25,000 in equity. Therefore, there is substantial equity in Debtor's interest in the property, which could provide a source for adequate protection of Movant's interest. Movant's case to show cause for relief from the stay is essentially an equitable one based on her age and her entitlement to some portion of the home equity that the former couple created during the marriage. Movant testified that she worked very hard during the marriage but received nothing in compensation at the time of the divorce. She now wishes to "have the money that's coming to me ...." Movant is seventy-six years of age, remarried and residing with her husband in a home they own in Carlisle, Pennsylvania. They have a combined monthly income of approximately $1,500.00 per month from social security in addition to commissions Movant's husband receives as a salesman for a chemical company. (The amount of the commissions was not made of record.) Movant did not provide evidence that unless the real estate is liquidated, she will be unable to meet her basic needs. At this time Movant has failed to establish cause for relief from the stay to allow her to proceed in state court to liquidate the property in which Debtor currently resides. Debtor has made no provision for adequate protection of Movant's interest during the 60- month tenure of his Chapter 13 plan. Relief from the stay is appropriate to permit the state court to determine the value of the current interest of each party in the property. Although each party holds a one-half interest in the real estate, Debtor is entitled to reimbursement for real estate taxes he paid on the property since the divorce, as well as the cost of any repairs made to the property. See Huffman Estate, 349 Pa. 18, 21 36 A.2d 638, 639 (1944). Movant is entitled to one-half of the fair rental value of the property for the period it has been in the Debtor's exclusive possession since the divorce. See Sciotto v. Sciotto, 446 Pa. 414, 288 A2d. 822 (1972). Relief from the automatic stay will permit Movant to proceed with the state court action solely to determine the liquidated value of her interest in the property after appropriate credits and deductions have been applied. Once the state court renders its decision, Debtor must either address Movant's interest in the property by providing adequate protection, such a lien in Movant's favor on Debtor's interest in the property, or by making payments through the plan. An order granting relief in part follows. BY THE COURT, "/Al IMVIM &-M p Judge Date: November 16, 2004 This electronic order is signed and filed on the same date. :? o ;=:? -„ ?,? ?.. ` C:? `rl -? - i ..? {St _ ? =a f>> ?:? ?._ _..1 ,)ECEIVED SEP 0710051 ELIZABETH A. WIAN, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2004- 2149 CIVIL TERM VINCENT C. McCUE, : CIVIL ACTION - IN EQUITY Defendant ORDER And Now, this /Gtr day of September, 2005, upon review of the attached Petition For Factual Determination, a hearing is scheduled in the Cumberland County Courthouse, in Court Room Number, on ?1 Lpw_, the oZ day of 4.-t '&0'a 2005. Pending the hearing, the Defendant is ordered to co-operate in having the real estate appraised. By The Court J. f ? G VMXA NN d ry tr lrt ? h :I Wd 91 d3S SOOZ AMONIC)HI(:ud M d0 301330-03113 ELIZABETH A. WIAN, Plaintiff V. VINCENT C. McCUE, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2004- 2149 CIVIL TERM CIVIL ACTION - IN EQUITY PETITION FOR DETERMINATION OF FACTUAL ISSUES 1. Attached hereto is the Order and Opinion issued by the Honorable Mary D. France, Bankruptcy Judge, in reference to the above captioned action. 2. The Bankruptcy Court has granted relief from the automatic stay and referred matters pending within the jurisdiction of the state court for certain factual determinations. Those determinations will assist the Bankruptcy Court in proceeding with the Defendant's bankruptcy. 3. The Plaintiff / Petitioner wishes to arrange for an appraisal of the real estate to assist the court. Wherefore, the Plaintiff / Petitioner respectfully requests that the Court set a hearing on this matter to determine the liquidated value of her interest in the property and Order the Defendant to co-operate in the appraisal process. Respectfully submitted, O'BRIEN, BARIC & SCHERER By: I Robert L. O'Brien, Esquire Attorney for Plaintiff I. D. # 28351 19 West South Street Carlisle, Pennsylvania 17013 717 - 249 - 6873 CERTIFICATE OF SERVICE I hereby certify that on September 1, 2005, I, Robert L. O'Brien, Esquire of O'Brien, Baric & Scherer, did serve a copy of the Petition For Factual Determination, by first class U.S. mail, postage prepaid, to the party listed below, as follows: Steven P. Miner, Esquire Metzger Wickersham 3211 North Front Street Harrisburg, Pennsylvania 17110 Vincent C. McCue 460 St. John's Drive Camp Hill, Pennsylvania 17011 Robert L. O'Brien, Esquire IN THE UNITED STATES BANKRUPTCY COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA In re: Chapter 13 VINCENT C. McCUE, Case No. 1-04-3450MDF Debtor ELIZABETH WIAN, Movant V. VINCENT C. McCUE, Respondent ORDER AND NOW, at Harrisburg, in said District, the motion for relief from stay filed by Elizabeth Wian is hereby GRANTED IN PART. Movant is granted relief from the stay to proceed in the Court of Common Pleas of Cumberland County to determine the liquidated value of Movant's interest in the premises located at 460 North St. John's Road, Camp Hill, Cumberland County, Pennsylvania. BY THE COURT, rt/ ? Ban mP Judge (aW) Date: November 17. 2004 This electronic order is signed and filed on the same date. IN THE UNITED STATES BANKRUPTCY COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA IN RE: VINCENT C. McCUE, Debtor ELIZABETH WIAN, Movant V. VINCENT C. McCUE, Respondent * * Chapter 13 * Case No.: 1-04-03450MDF * * * * * * * OPINION Procedural and Factual History Before me is the motion of Elizabeth Wian ("Movant") who seeks relief from the automatic stay to pursue a complaint she filed pre-petition in state court to partition real estate she owns with Vincent McCue ("Debtor"). The parties were married for approximately twenty years before they separated in 1981. During their marriage they acquired a home located in Camp Hill, Pennsylvania, which Debtor retained as his residence when the parties divorced on May 18, 1998. The divorce was bifurcated, and no subsequent order to divide marital property has been entered by the state court. The mortgage on the residence was satisfied before the parties separated in 1981. After their separation, Debtor assumed responsibility for all taxes and other expenses related to the maintenance and preservation of the property. Debtor failed to pay real estate taxes during several tax periods, and the property was listed for tax sale more than once. However, each time Debtor managed to avoid losing the home by paying the amount due prior to the sale. For tax purposes, the property has been assessed at $180,000.00, and Debtor's schedules indicate that the Debtor's interest in the property is $90,030.00. Debtor resides in the home, but also uses the property as a halfway house, which he has named "McCue's Mission." As McCue's Mission, Debtor provides transitional housing for persons with substance abuse problems. Debtor has not maintained property insurance on the home since at least 1992, and as of the date of the hearing, the property remained uninsured by Debtor. To protect her interest, Movant recently purchased insurance for her interest in the property. On May 14, 2004, Movant filed a complaint in the Court of Common Pleas of Cumberland County seeking to compel the sale of the Camp Hill property. Debtor filed his petition under Chapter 13 on June 4, 2004. On his schedules Debtor listed the Estate of Jeanne Garman as the only creditor holding a claim secured by his residence. The claim is based on a judgment entered state court in 1995 against the Debtor in the amount of $35,000.00. With interest computed since the date of entry of the judgment, the Garman estate now has asserted a claim in the amount of $64,058.78. Debtor's chapter 13 plan proposes to pay the Garman claim through payments to the trustee of $660.00 per month for sixty months ($39,600.00). According to Debtor's schedules, he has income of $1,740.00 per month and expenses of $1,555.00 per month. The Standing Chapter 13 Trustee has objected to the plan on the basis that it is underfunded. Debtor has not filed an answer to the Trustee's objection, and no hearing has been scheduled. A hearing on this matter was held on September 17, 2004. The parties were given an opportunity to file briefs within thirty days of the hearing, but only Debtor responded to the invitation. The matter is ready for decision.' Discussion Motions for relief from stay are governed by 11 U.S.C. §362(d), which provides that relief can be granted "(1) for cause, including the lack of adequate protection" or "(2) if the debtor does not have equity in [the property subject to the motion] and [it] is not necessary for an effective reorganization." Debtor has equity in the property so it clear that subsection (d)(2) does not apply in the instant case; therefore, Movant must proceed under subsection (d)(1). Under subsection (d)(1), a movant bears the burden of making an initial showing of cause. In re Telegroup, Inc., 237 B.R. 87, 91 (Bankr. D. N.J. 1999); In re Holly's, Inc., 140 B.R. 643 (Bankr. W.D. Mich. 1992). Debtor bears the burden of proving that Movant's interest is adequately protected such that relief is unnecessary. See, 11 U.S.C. §362(g)(2). In Pennsylvania, "[w]henever married persons holding property as tenants by the entireties are divorced, they shall, except as otherwise provided by [court order], thereafter hold the property as tenants in common of equal one-half shares in value." 23 Pa.C.S.A. §3507(a). When Movant and Debtor divorced in 1998 their interest in the former marital residence as tenants by the entirety was converted to a tenancy in common. When a tenant in common files a petition under the Bankruptcy Code his undivided interest becomes property of the estate under section 541(a)(1). In re Yun Chin Kim, 288 B.R. 431 (Bankr. D. Md. 2002) (Property that debtor owned as joint tenant with his mother as of commencement of his Chapter 7 case was thereafter I have jurisdiction to hear this matter pursuant to 28 U.S.C. §§ 157 and 1334. This matter is core pursuant to 28 U.S.C. § 157(b)(2)(A),(G) and (O). This Opinion constitutes the findings of fact and conclusions of law made under Fed. R. Banta. P. 7052. owned as tenants in common, with debtor's one-half interest in property being included in property of the estate.) A debtor's interest becomes part of the bankruptcy estate, but it is subject to the same equities in favor of the cotenant enjoyed by a creditor of the debtor holding a judicial lien. See Collier on Bankruptcy, 15' Edition (Revised), ¶541.05[6] [c] (citing In re McConnell, 197 F. 438 (N.D. N.Y. 1912)). Thus, in the instant case, Movant is entitled to receive the same treatment in Debtor's case afforded to a creditor with an unavoidable judicial lien. A judicial lien creditor whose interest is not otherwise avoidable in bankruptcy is generally entitled to adequate protection of her interest in the property against which she holds a lien. 11 U.S.C. §§361 - 363. The purpose of providing her with adequate protection is to ensure that she is able to receive "the indubitable equivalent" of her "lien" even while she is prevented by the automatic stay from acting on the lien. United Savings Association of Texas v. Timbers of Inwood Forests Associates, Ltd., 484 U.S. 365, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988). Adequate protection may be provided in several ways. A debtor may make cash payments or provide an additional lien to compensate the creditor for the decline in the value of the collateral. 11 U.S.C. § 361. Adequate protection also can be provided in the form of an "equity cushion" created by the value of a property over and above the amount of encumbrances against it. "Although the existence of an equity cushion as a method of adequate protection is not specifically mentioned in §361, it is the classic form of protection for a secured debt justifying the restraint of lien enforcement by a bankruptcy court." In re WRB West Associates Joint Venture, 106 B.R. 215, 219 - 220 (Bankr. D. Mont. 1989) (citing In re Curtis, 9 B.R. 110, 112 (Bankr. E.D. Pa. 1981)). Debtor has not provided adequate protection to Movant in his Chapter 13 plan by making cash payments or by subjecting his interest in the property to a lien in favor of Movant. But Debtor's interest in the property remains as a possible source of adequate protection. Movant's interest in the property is unencumbered, but Debtor's interest is subject to the judgment lien of the Garman Estate. Debtor valued the property at $180,000, and Movant estimated the property was worth approximately $200,000. Movant, however, admitted that she had not seen the home recently and had no first-hand knowledge of its condition. Based upon the Debtor's greater familiarity with the real estate, the Court will assume for the purposes of this motion that the property should be valued at $180,000 as of the date of the filing of the petition. Assuming an equal division of the value of the property, the interest of each parry is approximately $90,000. When the lien of the Garman Estate is subtracted from the value of Debtor's interest in the property, even if the Estate's claim is allowed at $64, 058.78, Debtor would retain approximately $25,000 in equity. Therefore, there is substantial equity in Debtor's interest in the property, which could provide a source for adequate protection of Movant's interest. Movant's case to show cause for relief from the stay is essentially an equitable one based on her age and her entitlement to some portion of the home equity that the former couple created during the marriage. Movant testified that she worked very hard during the marriage but received nothing in compensation at the time of the divorce. She now wishes to "have the money that's coming to me ...." Movant is seventy-six years of age, remarried and residing with her husband in a home they own in Carlisle, Pennsylvania. They have a combined monthly income of approximately $1,500.00 per month from social security in addition to commissions Movant's husband receives as a salesman for a chemical company. (The amount of the commissions was not made of record.) Movant did not provide evidence that unless the real estate is liquidated, she will be unable to meet her basic needs. At this time Movant has failed to establish cause for relief from the stay to allow her to proceed in state court to liquidate the property in which Debtor currently resides. Debtor has made no provision for adequate protection of Movant's interest during the 60- month tenure of his Chapter 13 plan. Relief from the stay is appropriate to permit the state court to determine the value of the current interest of each party in the property. Although each parry holds a one-half interest in the real estate, Debtor is entitled to reimbursement for real estate taxes he paid on the property since the divorce, as well as the cost of any repairs made to the property. See Huffman Estate, 349 Pa. 18, 21 36 A.2d 638, 639 (1944). Movant is entitled to one-half of the fair rental value of the property for the period it has been in the Debtor's exclusive possession since the divorce. See Sciotto v. Sciotto, 446 Pa. 414, 288 A2d. 822 (1972). Relief from the automatic stay will permit Movant to proceed with the state court action solely to determine the liquidated value of her interest in the property after appropriate credits and deductions have been applied. Once the state court renders its decision, Debtor must either address Movant's interest in the property by providing adequate protection, such a lien in Movant's favor on Debtor's interest in the property, or by making payments through the plan. An order granting relief in part follows. BY THE COURT, Ban rap inav Date: November 16, 2004 This electronic order is signed and f led on the same date. 6 ?'i i:; > .a ?? to c: %:. i,. ^.`C) t , ?.? '? i, t,?? 4? t.tS '-C r-? ELIZABETH A. WIAN, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. VINCENT C. MCCUE, CIVIL ACTION - IN EQUITY Defendant N0. 2004-2149 CIVIL TERM ORDER OF COURT AND NOW, this 24th day of October, 2005, it is ordered and directed that the Defendant cooperate in the appraisal of his real estate at the expense of the Plaintiff. By the Court, ?obert L. O'Brien, Esquire For the Plaintiff G?<incent C. McCue 460 St. John Drive V Camp Hill, PA 17011 A. Hess, J. lfh `C ?kl 1 ELIZABETH A. WIAN, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2004- 2149 CIVIL TERM VINCENT C. McCUE, CIVIL ACTION - IN EQUITY Defendant PETITION TO SET A HEARING 1. Petitioner is Robert L. O'Brien, Esquire, attorney for the Plaintiff. 2. The Petitioner has received an appraisal of the property to assist the Court in establishing certain findings to apprise the Middle District Bankruptcy Court of the parties respective interests in the real estate that is jointly owned by the parties. 3. Petitioner requests that the Court set a hearing to take testimony on all matters relevant to the proceedings in the Court of Common Pleas and the Middle District Bankruptcy Court. Respectfully submitted, O'BRIEN, BARIC & SCHERER By: Robert L. O'Brien, Esquire Attorney for Plaintiff I.D. # 28351 19 West South Street Carlisle, Pennsylvania 17013 717 - 249 - 6873 CERTIFICATE OF SERVICE hereby certify that on February 6, 2005, I, Robert L. O'Brien, Esquire of O'Brien, Baric & Scherer, did serve a copy of the Petition To Set A Hearing, by first class U.S. mail, postage prepaid, to the party listed below, as follows: Steven P. Miner, Esquire Metzger Wickersham 3211 North Front Street Harrisburg, Pennsylvania 17110 Vincent C. McCue 460 St. John's Drive Camp Hill, Pennsylvania 17011 Robert L. O'Brien, Esquire ,, , _r1 ?? -_? :. -? °; ELIZABETH A. WIAN, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2004- 2149 CIVIL TERM VINCENT C. McCUE, : CIVIL ACTION - IN EQUITY Defendant ORDER And Now, this & J day of February, 2006, upon review of the attached Petition, a hearing is scheduled in the Cumberland County Courthouse, in Court Room Number 17-?on the /-5 day of i 6 z? d ?? C& GI ''30 a, ?n J. By The Court b ELIZABETH A. WIAN, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2004- 2149 CIVIL TERM VINCENT C. McCUE, : CIVIL ACTION - IN EQUITY Defendant PETITION TO SET A HEARING 1. Petitioner is Robert L. O'Brien, Esquire, attorney for the Plaintiff. 2. The Petitioner has received an appraisal of the property to assist the Court in establishing certain findings to apprise the Middle District Bankruptcy Court of the parties respective interests in the real estate that is jointly owned by the parties. 3. Petitioner requests that the Court set a hearing to take testimony on all matters relevant to the proceedings in the Court of Common Pleas and the Middle District Bankruptcy Court. Respectfully submitted, O'BRIEN, BARIC & SCHERER By: ICZ7--- CJ(L?? Robert L. O'Brien, Esquire Attorney for Plaintiff I. D. # 28351 19 West South Street Carlisle, Pennsylvania 17013 717 - 249 - 6873 l CERTIFICATE OF SERVICE I hereby certify that on February 6, 2005, I, Robert L. O'Brien, Esquire of O'Brien, Baric & Scherer, did serve a copy of the Petition To Set A Hearing, by first class U.S. mail, postage prepaid, to the party listed below, as follows: Steven P. Miner, Esquire Metzger Wickersham 3211 North Front Street Harrisburg, Pennsylvania 17110 Vincent C. McCue 460 St. John's Drive Camp Hill, Pennsylvania 17011 ?ntQ Robert L. O'Brien, Esquire r-.? . Z? ? ? ?:y1 .? 1 C' ? 1 ?:: : y ? - " _' : _ _ , -ri + '' ?;? ';? ?< c:_? ELIZABETH A. WIAN, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - EQUITY VINCENT C. MCCUE. NO. 04-2149 EQUITY Defendant ORDER AND NOW, this 30 - day of May, 2006, after hearing, the court finds that th market value of the home located at 460 St. John's Drive, Camp the Hill, PA 17011, owned by the debtor/defendant, Vincent C. McCue, and the movant/plaintiff, Elizabeth A. Wian$175,000.00. The fair market rental value for the real estate is $1,000.00 ' Per month. . Mr. McCue has presumably paid the taxes on the real estate but offered no evidence in that regard. The parties were divorced on May 12, 1998, and Mr. McCue has had exclusive possession of the property since the parties separated in 1981. The court awards $500.00 month, one-half of the rental value of the property for the ninety-six (96 months since the parties' divorce, to the movant/plaintiff. Accordingly, Ms. Wian's interest in the property is $135,500.00. BY THE COURT, ?Robert L. O'Brien, Esquire For the Plaintiff Xincent C. McCue, Pro Se 460 St. John's Drive Camp Hill, PA 17011 Kevin . Hess, J. o? ?*-/ FILED ri OF TF;F r", ar fir, ,:,,?,•". ELIZABETH A. WIAN, Plaintiff V. VINCENT C. McCUE, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2004- 2149 CIVIL TERM : CIVIL ACTION - IN EQUITY PETITION FOR SALE OF JOINTLY OWNED PROPERTY AND TO ESTABLISH EACH PARTIES INTEREST IN THE PROPERTY 1. Plaintiff is Elizabeth A. Wian, an adult individual who resides at 36 Greenfield Drive, Carlisle, Cumberland County, Pennsylvania 17013. 2. Defendant is Vincent C. McCue, an adult individual who resides at 460 St. John Drive, Camp Hill, Cumberland County, Pennsylvania. 3. Plaintiff and Defendant are co-owners and co-tenants of a certain tract of land located in Hampden Township that is known and numbered as 460 St. John Drive, Camp Hill, PA, and described as follows: ALL that certain lot of land situate in the Township of Hampden, County of Cumberland and State of Pennsylvania, more particularly bounded and described as follows, to wit: BEGINNING at an iron pin in the intersection of the northern line of West Circle and the western line of Point Ridge Drive, as shown on the hereinafter mentioned Plan of Lots; thence South eighty-three (83) degrees five (5) minutes West along the northern line of West Circle one hundred ten (110) feet to a point; thence North twenty (20) degrees seven (7) minutes West along the eastern line of Lot No. 8, as shown on the said Plan, one hundred seventy-four and forty-five hundredths (174.45) feet to a stake; thence North eighty-three (83) degrees five (5) minutes East along the southerly line of Lot No. 10, as shown on said Plan, one hundred fifty (150) feet to an iron pin at the western line of Point Ridge Drive, now known as St. Johns Drive; thence South six (6) degrees fifty-five (55) minutes East, along the western line of Point Ridge Drive one hundred seventy (170) feet to the place of BEGINNING. BEING Lot No. 9 as shown on Plan of Lots, Section 1, Point Ridge Farm, Hampden Township, Cumberland County, Pennsylvania, said Plan being recorded in the Cumberland County Recorder's Office in Plan Book 8, Page 2. HAVING thereon erected a one story brick ranch dwelling with attached two car garage. BEING the same premises which Ronald P. Guschel and Mary E. Guschel, his wife, by their deed dated May 11, 1960 and recorded in the Recorder of Deeds Office in and for Cumberland County, Pennsylvania, in Deed Book 19-U, Page 560 granted and conveyed unto Vincent C. McCue and Elizabeth A. Wian, formerly Elizabeth A. McCue. 4. The aforementioned real estate cannot be divided without prejudice to or spoiling the whole. Accordingly, Plaintiff requests that the property be sold. 5. The parties were before the Court in May 2006. At that time the Partition had been filed and the Bankruptcy Court had requested the Court of Common Pleas of Cumberland County to make a determination of the respective parties interest in the real estate. Mr. McCue had a lien against his interest in the property and had filed a Chapter 13 bankruptcy to pay that lien, that lien has been paid and the bankruptcy has been discharged. A copy of the discharge is attached as Exhibit "A". 6. In May 2006, the Court conducted a hearing to determine the parties interests in the property. A copy of that Order is attached as Exhibit "B". 7. At the time of the aforesaid Order, Mrs. Wian was determined to have an interest of 77.4% in the real estate. 8. Since the time of that Order, Mr. McCue has continued to have exclusive possession of the real estate. Plaintiff wishes to provide updated information in relation to the rental value of the real estate and has provided a Court Order with this Petition to permit S. W. Barrett Real Estate and Appraisal Services to access the property and provide a written report and testimony at a Court hearing. 9. Mrs. Wian is concerned about Mr. McCue's good faith in maintaining the property once this process of settling the litigation begins. She requests that the Court appoint and direct the Sheriff of Cumberland County to provide a visual inspection of the premises and take photographs of the property so to provide an anecdotal and visual record of the property near the time of the filing if this Petition. 9. Mrs. Wian believes that she will be able, with the assistance of her family, to purchase Mr. McCue's interest in the real estate when the appropriate adjustment is made for his occupancy of the residence. Accordingly, Mrs. Wian requests that the Court conduct a private sale of the property pursuant to Pa. R.C.P.- 1567. WHEREFORE, Plaintiff respectfully requests that this honorable Court: A. Order and Direct that the Defendant, Vincent McCue cooperate with the appraiser Steve Barrett in permitting full access, egress and inspection of the real estate and improvements at a time during regular business hours and as set by Mr. Barrett. B. After hearing, enter an Order as to the parties respective ownership interests in the real estate and determine the current fair market value of the real estate. C. Order and direct the sale of the property by and between the parties with Mrs. Wian being given the first option to purchase Mr. McCue's interest in the property. The funds from said purchase shall be held in escrow and delivered to Mr. McCue upon his vacating the property and the property being in the same condition as during the Sheriffs and Mr. Barrett's inspections. D. That pending the inspection by Mr. Barrett and the Court hearing, that the Sheriff of Cumberland County conduct an inspection of the property so as provide independent verification of the condition of the premises. E. Grant such other relief as is just and reasonable. Respectfully submitted, O'BRIEN, BARIC & SCHERER By: Robert L. O'Brien, Esquire Attorney for Plaintiff I.D. # 28351 19 West South Street Carlisle, Pennsylvania 17013 VERIFICATION I verify that the statements made in the foregoing Petition are true and correct. I understand that false statements made herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities. Cv• abeth A. Wian Date: ?Dv 9 rio.di r/cl ients/wian/com plaint. par cc: Betty Wian ELIZABETH A. WIAN, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA ' vs. CIVIL ACTION - EQUITY NO. 04-2149 EQUITY VINCENT C. MCCUE. Defendant ORDER AND NOW, this 3o " day of May, 2006, after hearing, the court finds that the fair market value of the home located at 460 St. John's Drive, Camp Hill, PA 17011, owned by the debtor/defendant, Vincent C. McCue, and the movant/plaintiff, Elizabeth A. Wian, is $175,000.00. The fair market rental value for the real estate is $1,000.00 per month. Mr. McCue has presumably paid the taxes on the real estate but offered no evidence in that regard. The parties were divorced on May 12, 1998, and Mr. McCue has had exclusive possession of the property since the parties separated in 1981. The court awards $500.00 per month, one-half of the rental value of the property for the ninety-six (96) months since the parties' divorce, to the movant/plaintiff. Accordingly, Ms. Wian's interest in the property is $135,500.00. Robert L. O'Brien, Esquire For the Plaintiff Vincent C. McCue, Pro Se 460 St. John's Drive Camp Hill, PA 17011 BY THE COURT, Kevin Hess, J. G°D CERTIFICATE OF SERVICE I hereby certify that on November SO , 2009, I, Robert L. O'Brien, Esquire, did serve a copy of Elizabeth A. Wian's: Petition For Sale of Jointly Owned Property And To Establish Each Parties Interest In The Property, by U.S. mail, postage prepaid, to the parties listed below, as follows: Vincent C. McCue 460 St John Drive Camp Hill, PA 17011 Robert L. O'Brien, Esquire 19 West South Street Carlisle, PA 17013 2 C C N` : : ELIZABETH A. WIAN, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION - EQUITY NO. 04-2149 EQUITY VINCENT C. MCCUE. Defendant IN RE: PETITION FOR SALE OF JOINTLY OWNED PROPERTY AND TO ESTABLISH EACH PARTY'S INTEREST IN THE PROPERTY ORDER AND NOW, this z -1 day of December, 2009, a rule is issued on the defendant to show cause why the relief requested in the within petition ought not to be granted. This rule returnable thirty (30) days after service. ./ Robert L. O'Brien, Esquire For the Plaintiff incent C. McCue, Pro Se 460 St. John's Drive Camp Hill, PA 17011 0 t.-.alb c es /r?a t l£? a/ x / 0.7 BY THE COURT, Kevin . Hess, J. Py C ` h? THE 2169 DEC -2 F `i 's : f'%-' 8 GVf?fi a,,ti'l'1rt ELIZABETH A. WIAN, Plaintiff V. VINCENT C. MCCUE, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA DOCKET NO.: 2004-2149CIVIL TERM CIVIL ACTION - EQUITY DEFENDANT'S RESPONSE TO PLAINTIFF'S PETITION FOR SALE OF JOINTLY OWNED PROPERTY AND TO ESTABLISH EACH PARTIES INTEREST IN THE PROPERTY AND NOW, comes the Defendant, pro se, and responds to Plaintiff s Petition as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. This is a conclusion of law to which no response is necessary. Strict proof is demanded at trial. 5. Admitted. 6. Admitted in part, denied in part. It is admitted that an order was issued. It is denied that Defendant understood what transpired during hearing due to his health condition which resulted in Defendant having a stroke. 7. Admitted. By way of further response, Plaintiff, plaintiff's divorce attorney and Defendant verbally agreed that Defendant would remain in the marital residence for the remainder of Defendant's life, in lieu of Defendant signing divorce papers. 8. Admitted in part, denied in part. It is admitted that Defendant has continued to have exclusive possession of the real estate. It is denied that Defendant agrees to permit S.W. Barrett Real Estate and Appraisal Services to access the property to conduct an appraisal. 9. Denied. It is denied that Defendant permit the Sheriff of Cumberland County to enter the premises to conduct a visual inspection. Defendant has been residing at the residence for over 28 years and has been maintaining the property. Therefore, Plaintiffs concerns that Defendant will not continue to maintain the property simply due to this litigation is nonsense and would be a waste of the Sheriffs time and effort. 10. Denied. Plaintiff does not have the means to maintain this residence with or without the assistance of her family. Moreover, Plaintiffs interest in this property has diminished over the years. Defendant has resided in this residence for over 28 years. During this time period, Defendant has paid the mortgage (approximately $1,200.00 per month) from 1981 to 1983 when the home was paid off. Totaling an amount of approximately $43,200.00. Defendant has paid property/school tax totaling approximately $5,600.00 per year. Totaling an amount of approximately $140,000.00 (25 years). In addition, since 1981, Defendant pays approximately $2,000.00 per year in lawn care and upkeeps, $6,000.00 for installation of new tile flooring, $3,500.00 in remodeling the bathroom, $4,500.00 in repainting the entire house, $3,000.00 in repaving the driveway, $1,800.00 in refurbishing and staining the wooden flooring and pays approximately $110.00 per week in home cleaning. In addition, Defendant is an 83 year old man who receives social security. In addition, he has suffered serious health issues such as cancer and a stroke which left him paralyzed on his left side. In addition, he suffers from neck/back pain on a daily basis. The residence that he resides in is a ranch home wherein he has live-in help whom assists him with his daily activities such as cooking, cleaning, bathing, etc. To sell the residence would be a detriment to Defendant's living situation. Defendant has been well established in his home for well over 28 years and would have no other place to go if the court would allow such sale. WHEREFORE, Defendant respectfully requests that this Honorable Court deny all of Plaintiffs Petition and rule in Defendant's favor and allow him to retain and continue to reside in the residence. Res ctfully su e -d-, cCue 460 St. John Dr. Camp Hill, PA 17011 pro se ELIZABETH A. WIAN, Plaintiff V. VINCENT C. MCCUE, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA DOCKET NO.: 2004-2149CIVIL TERM CIVIL ACTION - EQUITY CERTIFICATE OF SERVICE I have hereby served a correct copy of the Defendant's Response to Plaintiff's Petition for Sale of Jointly Owned Property and to Establish Each Parties Interest in the Property filed in the above-captioned matter upon Plaintiff's attorney, Robert L. O'Brien, Esquire, by first-class U.S. mail, addressed: Robert L. O'Brien, Esquire 19 W. S uth St. C lisl , PA 17013 ??? ?? A RLED--'?? iHCE ?1? 7lw f r f ?FtS i ?009 0 E C 23 Ail S- '? .r ELIZABETH A. WIAN, Plaintiff VS. ; VINCENT C. MCCUE. Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 04-2149 EQUITY IN RE: PETITION FOR SALE OF JOINTLY OWNED PROPERTY AND TO ESTABLISH EACH PARTY'S INTEREST IN THE PROPERTY ORDER AND NOW, this G' day of January, 2010, hearing in the form or an on-record argument is herewith set for Thursday, February 25, 2010, at 2:30 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. The matters to be addressed will include, inter alia: 1. Whether this partition action will proceed or whether it is superseded by the divorce action in which issues concerning the equitable distribution of marital property were preserved;' 2. Whether the parties can agree on the time and manner of an appraisal; and 3. The import of our order of May 30, 2006, the purpose of which was to protect the property rights of the plaintiff in a then-pending bankruptcy action. n o G -n BY THE COURT, FT! r _n ?J J Kevin . Hess, J. .o The Court notes that, in either event, the matter would proceed, for initial determination, before a Master. ? Robert L. O'Brien, Esquire For the Plaintiff "--<incent C. McCue, Pro Se 460 St. John's Drive Camp Hill, PA 17011 Am t .es rm'-. t l £CL //7//6 ELIZABETH A. WIAN Plaintiff Vs. VINCENT C. MCCUE Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION -EQUITY b : NO. 04-2149 EQUITY ?_7 c^ N) r v ¢ MOTION FOR CONTINUANCE `- r Co AND NOW comes, Attorney Herbert Corky Goldstein and requests a Continuance of the Hearing now set for February 25t'% 2010 (attached) for the following reasons. 1. Attorney Goldstein was not retained until 10:00 A.M. on Friday, February 19th by D4efendant, and begs the Court's forgiveness for this late notice. 2. Defendant has had difficulty, due to his health, to obtain an attorney until today, and has been pro se. Also, Attorney Goldstein is already scheduled that afternoon in Dauphin County Court. 3. Defendant must also go into the Milton Hershey Medical Center on the 22°d of February for eye surgery. Defendant has many medical issues besides his eyes. 4. Attorney Goldstein immediately called Attorney O'Brien upon being retained on Friday, and spoke with his secretary, but he was unavailable at the time. 5. Attorney Goldstein is also now very hopeful after hearing the facts as explained by the Defendant, that now that he is representing this formerly pro se client, that he and Attorney O'Brien might be able to settle this matter without a Hearing being necessary. 6. For the above reasons, it is respectfully requested that the above Hearing be continued. Date Respectfully, 1A, EffMWERT CORKY GOLDSTEIN, ESQ. 59 Central Boulevard Camp Hill, PA 17011 (717) 236-6491 Attorney for Defendant I.D. # 07182 AFFIDAVIT OF SERVICE I, Attorney Herbert Corky Goldstein, hereby affirm that I have sent a copy of this Petition to the Plaintiffs Counsel of Record by U. S. Mail. It was sent to: Attorney Robert L. O'Brien (Counsel for Plaintiff Elizabeth Wian) 19 West South Street Carlisle, PA 17013 VERIFICATION Attorney Herbert Corky Goldstein verifies that the facts set forth in this Petition are true and correct to the best of his knowledge, as given to him by the Defendant, Vincent C. McCue, under penalty of law mandated under Pennsylvania Statutes. Date Attorney Herbert Corl(y Goldstein ELIZAA? A. WIAN, Plaintiff VS. VINCENT C. MCCUE. Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 04-2149 EQUITY IN RE: PETITION FOR SALE OF JOINTLY OWNED PROPERTY AND TO ESTABLISH EACH PARTY'S INTEREST IN THE PROPERTY ORDER AND NOW, this G' day of January, 2010, hearing in the form or an on-record argument is herewith set for Thursday, February 25, 2010, at 2:30 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. The matters to be addressed will include, inter alia: 1. Whether this partition action will proceed or whether it is superseded by the divorce action in which issues concerning the equitable distribution of marital property were preserved;' 2. Whether the parties can agree on the time and manner of an appraisal; and 3. The import of our order of May 30, 2006, the purpose of which was to protect the property rights of the plaintiff in a then-pending bankruptcy action. BY THE COURT, ' The Court notes that, in either event, the matter would proceed, for initial determination, before a Master. Robert L. O'Brien, Esquire For the Plaintiff Vincent C. McCue, Pro Se 460 St. John's Drive Camp Hill, PA 17011 Am ELIZABETH A. WIAN, Plaintiff V. VINCENT C. McCUE, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSY?LVA IA NO. 2004- 2149 CIVIL TERM m CIVIL ACTION - IN EQUITY w RESPONSE TO MOTION FOR CONTINUANCE 1. Mr. McCue has had several years to obtain counsel in this matter. (l7(` T, m 2. On December 23, 2009 Mr. McCue filed a pro se response to the Motion filed by the Plaintiff in late November, 2009. Mr. McCue never provided for service of his petition and it was not until February, when Mrs. Wian's counsel checked the court records that he obtained a copy of the response. 3. Mr. McCue has been aware since shortly after the Court's Order of January 6, 2010 that the hearing was scheduled for February 25, 2010. 4. Attorney O'Brien has contacted Mrs. Wian and asked her if she would agree to the continuance. She will not agree to the continuance. 5. Counsel for Mrs. Wian called Attorney Goldstein and advised him that his client was directing him to oppose the continuance. Attorney Goldstein seemed put off by this information. He asked if it was Mrs. Wian's intention to put her ex-husband out of his home, in the cold, in his wheel chair. Counsel for Mrs. Wian, being in the middle of a conversation didn't want to take the time to call his client to ascertain the specifics from her but felt fairly certain that he could express, with confidence and sincerity to Attorney Goldstein, that his client would certainly have no hesitation in so doing. Attorney Goldstein's response was further approbation of Mrs. Wian and it seemed, by being in the status of counsel for Mrs. Wian, extreme unhappiness with Counsel O'Brien for not being more forthcoming and protective of Mr. McCue because of his age and health. 6. While Counsel was attempting to explain to Attorney Goldstein that he had neither the facts nor the right to offer opinions as to Mrs. Wian and her character or the character of her Counsel in merely explaining her opposition to the request, Attorney Goldstein's dudgeon reached the point where regrettably, he terminated the conversation. Counsel for Mrs. Wian is philosophical about this and not the least offended although he does wish that Attorney Goldstein had remained on the phone longer so that he have more clearly expressed his opinion that Attorney Goldstein take Mr. McCue into his home if he was so concerned with his well being. Mrs. Wian has for too many years been the "brothers keeper" of Mr. McCue. It appears that Attorney Goldstein's edification will have to await the court's proceedings. 7. To his credit, Attorney Goldstein did call and leave a message apologizing for his behavior in the conversation. Nevertheless, Mrs. Wian still opposes the continuance. Wherefore, the Plaintiff / Petitioner respectfully requests that the Court not grant a continuance of the hearing on this matter to determine the liquidated value of her interest in the property and other matters to move this matter to a final resolution. Respectfully submitted, Robert L. O'Brien By: Robert L. O'Brien, Esquire Attorney for Plaintiff I . D. # 28351 19 West South Street Carlisle, Pennsylvania 17013 717 - 249 - 6873 CERTIFICATE OF SERVICE I hereby certify that on February 23, 2010, I, Robert L. O'Brien, Esquire, did serve a copy of the Response, by first class U.S. mail, postage prepaid, to the party/counsel listed below: Herbert Corky Goldstein, Esquire 59 Central Blvd. Camp Hill, Pennsylvania 17011 Robert L. O'Brien, Esquire ELIZABETH A. WIAN, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - EQUITY NO. 04-2149 EQUITY VINCENT C. MCCUE Defendant IN RE: PETITION FOR SALE OF JOINTLY OWNED PROPERTY AND TO ESTABLISH EACH PARTY'S INTEREST IN THE PROPERTY ORDER AND NOW, this 2 day of March, 2010, argument scheduled in this matter for February 25, 2010, is continued until Thursday, March 25, 2010, at 3:30 p.m., in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, / Robert L. O'Brien, Esquire For the laintiff Herbert Corky Goldstein, Esquire For the Defendant Am n _ ?-o'(J f ?£ S fit, d.l I 3?3/iD 0 :aD co 39 00 W N ELIZABETH A. WIAN, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION - EQUITY NO. 04-2149 EQUITY VINCENT C. MCCUE. Defendant IN RE: ORDER DIRECTING PARTITION ORDER AND NOW, this 2 `- day of March, 2010, hearing on the matter of whether the Court shall enter an order directing partition in accordance with Pa.R.C.P. 1557 is set for Friday, May 14, 2010, at 10:30 a.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, Kevin . ess, J. Robert L. O'Brien, Esquire For the Plaintiff erbert Corky Goldstein, Esquire For the Defendant Am C- Y? L'?A? Mr- ? X- `•1?' at s i // c ? (- , . `a.(.- Ito 5 . V.I IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA ELIZABETH A. WIAN :CIVIL ACTION -EQUITY n c ° '-=~1 Plaintiff `} ~ a t - ~ -„ r~ ~~' ~~~ ~ n r - rn VS N0.04-2149 ~~ - ' ~ ~ , ~~ . G "~ ~ , i~ C ,~ ~`, ~. ~ ~~ VINCENT C. McCUE ~:;. . t-<., , ' ~~ Defendant G '`- `~'•' ' ~.. ;, AFFIDAVIT OF SERVICE I, Attorney Herbert Corky Goldstein served the Court Order (attached) on the following person by Regular and Certified Mail, Return Receipt Requested. The Certified letter was delivered on June 11th, 2010 and signed for by Vincent McCue at his residence. Mr. Vincent C. McCue 460 St. Johns Drive Camp Hill, PA 17011 Date ~ ~~ ^ Compleee items 1, 2, and 3. Also complete item 4 if Resbicted DelNery,is desired. ^ PfMt your name and address on the reverse so that we can return the card to you. ^ Attach this card to the back of the mailpiece, or on the front ff space permits. ~~~~~ i~o~~ Herbert Corky Gg6ldstein, Esquire 59 Central Boulevard Camp Hill, 17011 (717) 236-6491 Supreme Court No. 07182 a sign, ~ ~~ ~ dresses B. Re d C. Date of Delhrery ~ ~ -~r- ~ v D. Is delivery address different from ftem 1? O Yes K YES, enter delvery address below: ^ No 3. Service Type ^ Certified Mell ^ Egress Mail ^ Registered ^ Return Receipt for Merctfandiee ^ Insured Mail ^ C.O.D. 4. Restricted Delivery? (Ext-a Fee) ^ Yea 2. Article Number ~"~r~OR1~ 7DD7 3D2D DDD1 1D91 2689 P3 Form 3811,. Februa mast c arum Receipt to2sss-oz-M-tsao ELIZABETH A. WIAN, Plaintiff vs. VINCENT C. MCCUE. Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -EQUITY NO. 04-2149 EQUITY IN RE: MOTION TO WITHDRAW ORDER AND NOW, this `~ ~ day of June, 2010, a rule is issued on all parties to show cause why the relief requested in the within motion ought not to be granted. This rule is returnable twenty (20) days after service. Service of this rule on the defendant shall be made by both regular and certified mail. Conference with counsel set for June 9, 2010, is continued pending the outcome of this motion to withdraw. In the event that Mr. Goldstein is permitted to withdraw, the defendant shall be given thirty (30) days within which to retain counsel or file with the Court a statement to the effect that he wishes to proceed pro se. If he does neither, this matter shall proceed without the benefit of a preliminary conference in accordance with Pa.R.C.P. 1558. BY THE COURT, ~ / ~/ A. Hess, J. Robert L. O'Brien, Esquire For the Plaintiff Herbert Corky Goldstein, Esquire For the Defendant Vincent McCue Defendant ~. ~~' N~~~~ `M~C~. 1 ELIZABETI-~ A WIAN c~ ~ IN THE COURT OF COMMON PLEAS OF- ~_ ~ ~ --a . , Plaintiff e PENNSYLVA!~i'- CUMBERLAND COUNTY ° r ~P , • V + ~ 4ry'1.3 ~ V vs. CIVIL ACTION -EQUITY -~ ~ o ~ ;'-, N0.04-2149 EQUITY :.~., ° -~ ~ . VINCENT C. MCCUE. c~ -~ ~ ~ ~~a._ ~, ~ f ~d '' ~~ De e ant "- ~~ ~ ~ ~v TO ESTABLISH EACH PARTY'S INTEREST IN THE PROPERTY ORDER AND' NOW, this ZC ` day of October, 2010, in consideration of the attached petition, the Court having previously granted the petition of the plaintiff for partition and having i determined that the property in question is owned by the parties as tenants in common, a hearing is set for Thursday, December 30, 2010, at 1:30 p.m. in Courtroom Number 4, Cumberland I County Cout~thouse, so that the parties may be heard on the matter of a private sale confined to the parties irk accordance with Pa.R.Civ.P. 1567 and, if a private sale is not conducted, whether the property should be exposed to public sale in accordance with Pa.R.Civ.P. 1568. In addition, testimony will be taken concerning those matters as to which the Court is required to make factual findi~gs in accordance with Pa.R.Civ.P. 1570. Give the age and the infirmity of the defendant, the plaintiff is directed to make service of her petition and this order on the defendant by regular and certified mail and by personal service at the hand of the Sheriff. BY THE COURT, .~ :ss, J. obert L. O' k3rien, Esquire For the Plaintiff erbert Corky Goldstein, Esquire For the Defe~dant ~ncent McCue Defendant :rlm ~''~ t £.s /ri.~.cC~.cL ~D~Z,c~ld 1 ELIZABETH A. WIAN, IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA c- ~.~ ,:~ -~, v. : NO. 2004- 2149 CIVIL TERM r ~ `~ ~ VINCENT C. McCUE, :CIVIL ACTION - IN EQUITY ~~ v Defendant ~~ °' 4~c-> 3 _:r_ ~-; _A, -;a .- ..~. PETITION TO SET A HEARING FOR SALE 1. Petitioner is Robert L. O'Brien, Esquire, attorney for the Plaintiff. 2. The Petitioner received an Order dated June 4, 2010 that this matter would proceed pursuant to Pa. R.C.P. 1558 without the benefit of a preliminary hearing. The Order's import was that the matter would proceed after the passage of 30 days. 3. Well after the passage of thirty days, Counsel for the Plaintiff contacted the Judge's chambers and requested that the matter be brought to the Court's attention for disposition in accord with the Order of June 4, 2010. 4. Counsel waited an additional period of time, and after receiving no disposition, filed on September 26, 2010, a motion requesting a hearing. There has been no disposition of that request. 5. By Order of May 17, 2010, The Court pursuant to Pa. R.C.P. 1557 granted the partition requested by the Plaintiff. 6. A month has passed since the Plaintiff s Counsel filed the last Motion. 7. Plaintiff is an elderly woman who has ben forced to apply for public assistance to help meet her needs of support. The home subject to partition is substantially her only asset. She has been attempting since May 14, 2004 to have this asset liquidated. On May 30, 2006 the Court determined that the Plaintiffs interest in the property amounted to $135,500.00, that she was entitled to the one half the fair rental value of the property and that the property was worth $175,000.00. 8. The Plaintiff has been carrying insurance on the property to protect her interest for the past six years. Plaintiff reasonably believes that Mr. McCue has done little in the way of maintenance and upkeep of the property. Plaintiff states that Mr. McCue has done everything he can to delay disposition of this matter while he resides for free in a home that is substantially owned by the Plaintiff 9. The Plaintiff requests that the Court take this matter up directly and pursuant to Pa. R.C.P. that the court conduct a sale of the property' between the parties. 10. The referral of this matter to a Master would only serve to further delay justice to this elderly Plaintiff who has waited in excess of six years for a disposition of this matter. The Court only has to have reference to the Order of May 30, 2006 and the passage of another 53 months to conclude that the Plaintiff's interest now amounts to $162,000.00. She has an individual who will assist her to purchase the Defendant's share so this matter can be concluded. 11. Petitioner requests that the Court set a hearing to conclude this matter without reference to a master, take testimony on all matters relevant to the proceedings and provide for a private sale of the property at the time of the hearing. Respectfully submitted, Robert L. O'Brien, Esquire By: Robert L. O'Brien, Esquire I.D. # 28351 19 West South Street Carlisle, Pennsylvania 17013 717 - 249 - 6873 ELIZABETH A. WIAN, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION -EQUITY N0.04-2149 EQUITY VINCENT C. MCCUE. Defendant IN RE: PETITION FOR PARTITION ORDER AND NOW, this ~ ~ ~ day of May, 2010, after hearing, the Court being satisfied that issues of equitable property distribution were not properly pled or preserved in the prior divorce action of the parties, the petition of the plaintiff for partition is GRANTED. The Court directs partition of the premises at 460 St. John Drive, Camp Hill, Cumberland County, Pennsylvania, owned by Vincent C. McCue and Elizabeth A. Wian, formerly as marital property but now as tenants in common. A preliminary conference with counsel, as required by Pa.R.C.P. 1558, is herewith set for Wednesday, June 9, 2010, at 2:15 p.m. The parties need not appear. Counsel aze encouraged to communicate with one another prior to the conference in an effort to limit the issues. BY THE COURT, ~~ / Robert L. O'Brien, Es uire For the Plaintiff erbert Corky Goldstein, Esquire For the Defendant .Hess, J. :rnlm f s~ ~v / ~ ~~ ~~ ~. ~'r~ ~:~ ~~ 0 ~c ...1 "C1 N c a ~a ~. ~~ :ate _t `~ 1 :L ~~cr ELIZABETH A. WIAN, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION -EQUITY N0.04-2149 EQUITY VINCENT C. MCCUE. Defendant IN RE: MOTION TO WITHDRAW ORDER AND NOW, this '~ ~ day of June, 2010, a rule is issued on all parties to show cause why the relief requested in the within motion ought not to be granted. This rule is returnable twenty (20) days after service. Service of this rule on the defendant shall be made by both regular and certified mail. Conference with counsel set for June 9, 2010, is continued pending the outcome of this motion to withdraw. In the event that Mr. Goldstein is permitted to withdraw, the defendant shall be given thirty (30) days within which to retain counsel or file with the Court a statement to the effect that he wishes to proceed pro se. If he does neither, this matter shall proceed without the benefit of a preliminary conference in accordance with Pa.R.C.P. 1558. BY THE COURT, ~/ Robert L. O'Brien, Esquire For the Plaintiff Herbert Corky Goldstein, Esquire For the Defendant ~ncent McCue Defendant ~a t QS ry~~~ `1?~~0 ~rr~ A. Hess, J. N ~ .,. O '~1 - Tr•Yi C. i .- i + ~ ~ c,; -: _ ~_ _ , ~. - : r: ~.- _~ ~ _ ~ , ; _~. '' ; , ~.~ `i `l.! u i •~ CERTIFICATE OF SERVICE I hereby certify that on October 26, 2010, I, Robert L. O'Brien, Esquire, did serve a copy of the Petition To Set A Hearing, by first class U.S. mail, postage prepaid, to the party listed below, as follows: Vincent C. McCue 460 St. John's Drive Camp Hill, Pennsylvania 17011 ~'~~~~~-~'L L ~. Robert L. O'Brien, Esquire -tt LI - 2-1 qI CERTIFICATE OF SERVICE I hereby certify that on November 23rd, 2010, I, Robert L. O'Brien, Esquire, did serve a copy of the Order dated October 20, 2010, entered on the Petition For Rule To Show Cause filed by Elizabeth A. Wan, by certified and regular U.S. mail, postage prepaid, to the parties listed below, as follows: Vincent C. McCue 460 St John Drive Camp Hill, PA 17011 Robert L. O'Brien, Esquire 19 West South Street Carlisle, PA 17013 (uomesttc matt L, r For delivery inform tr7 Postage $ Certified Fee ru O alum Receipt Fee O (En ment Required) C3 Res ed Delivery Fee (End ment Required) $2.80 P, $2.30 PSI 10.00 ??jO c? D' N W ..o $5.54 G R 0?O Total Postage 8 Fees Es N nt o a. .- C= -- C V ------------------------ o siieei X ; or PO Box No. ........... City, State, Z/P+4? ` 1 • 1 4 N 00 c -Orn C? O0 0.0 P ELIZABETH A. WIAN, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION - EQUITY NO. 04-2149 EQUITY VINCENT C. MCCUE. Defendant IN RE: PARTITION rn°Ca -;_ =-n ,;r ? ? mar= BEFORE HESS, P.J. < x? YT° - MEMORANDUM AND INTERIM ORDER ? n :4 00 In this partition action, the plaintiff has expressed an interest in purchasing the r_n defendant's interest in a residence the parties own as tenants in common. In essence, following further hearing, the Court would entertain a request that there be. a private sale confined to the parties pursuant to Pa.R.C.P. 1551 et seq. In that connection, we make the following interim findings of fact: 1. The property located at 460 St. Johns Drive, Camp Hill, Cumberland County, Pennsylvania, is not capable of division without prejudice to or spoiling the whole. 2. The value of said property is $185,000.00. 3. A mortgage in the principal sum of $110,000.00 has been recorded in favor of one Jeffrey Fedder and against Vincent McCue purporting to encumber the St. Johns Drive property. Inasmuch as the plaintiff is not a party to the mortgage and that, accordingly, the mortgage is arguably void on its face, it is subject to divestment at the time of any subsequent sale. ,v 4. The rental value of said property is $1,000.00 per month.' 5. The real estate taxes are $2,375.00 per year. While they have not always been paid on time, they have been generally borne by the defendant. 6. The reasonable costs of maintenance are $1,850.00 per year or one percent of market value. 7. Total annual expenses assumed by the defendant are $4,225.00. 8. The rental value benefit which the defendant has retained to the prejudice of the plaintiff totals $6,000.00 per year. 9. During the years since the parties' divorce, the thirteenth anniversary of which will occur in May of 2011, there has been a deficit in favor of the plaintiff in the amount of $1,775.00 per year for a total of $23,075.00. 10. The plaintiff has paid homeowner's insurance on the property since 2004 in a total amount of $4,500.00. 11. Total owelty in this case in favor of the plaintiff is $27,575.00 resulting in an interest in the St. Johns Drive property in the amount of $120,075.00 and a corresponding interest of the defendant in the amount of $64,925.00. ORDER AND NOW, this 3 day of January, 2011, further hearing herein will be held upon motion of either party addressing, inter alia, the manner in which the property in this case shall be sold. Counsel for the plaintiff will forward a copy of this memorandum and order by ' We have chosen, throughout our computations, to use current values understanding that they have no doubt increased over time but have remained relatively proportionate to each other. In addition, we have chosen to use more conservative values but have done so in every category seeking a uniform and fair result. 1 regular and certified mail to Jeffrey A. Fedder of Selinsgrove, Pennsylvania, without prejudice to the said Jeffrey A. Fedder to seek intervention in this action. BY THE COURT, 'Robert L. O'Brien, Esquire For the Plaintiff Vincent McCue 460 St. Johns Drive Camp Hill, PA 17011 CoP`es moed ? II??, aI0? rlm ELIZABETH A. WIAN, Plaintiff V. VINCENT C. McCUE, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2004- 2149 CIVIL TERM CIVIL ACTION - IN EQUITY c Wm :X;?o v,r- rn ca r co r? M- ? r- CD 4° T1 z rzt PETITION FOR CLARIFICATION OF RULING SETTING THE PARTIES' INTEREST IN THE PROPERTY AND FOR SCHEDULING SALE OF THE REAL ESTATE 1. Petitioner is Elizabeth A. Wian by her counsel Robert L. O'Brien, Esquire. 2. Respondent is Vincent C. McCue. 3. Plaintiff and Defendant are co-owners and co-tenants of a certain tract of land located in Hampden Township that is known and numbered as 460 St. John Drive, Camp Hill, PA. 4. The Court recently on February 1, 2011 issued a ruling in reference to the Partition of the real estate. 5. It appears to Petitioner and her counsel that the Court has made a computational mistake. There is an inherent inconsistency in the reasoning and the result as provided in the interim Order. 5. The Court has allocated Petitioner one half of the gross income for the property while charging her for the entire costs for the taxes and real estate maintenance. According to the Court's calculations the gross income for the property is $12,000.00 per year. The costs for the taxes and maintenance amount to $4225.00. This amount, deducted from the gross income, results in a net income of $7,775.00. Petitioner's share of the income would be $3,885.50 per year, not the $1,775.00 awarded by the Court. Petitioner should have been awarded the sum of $50,537.50 and not the $23,075.00 as set forth in the opinion of February 1, 2011. This determination would be more consistent with the Court's prior Order of May 30,2006. 6. Petitioner requests an updated finding of her interest in the property. 7. Petitioner also requests that there be a private sale confined to the parties. WHEREFORE, Petitioner respectfully requests that this honorable Court: A. Review the arithmetic utilized in the order of January 31, 2011 and issue a correction. B. Order and direct the sale of the property by and between the parties. D. Grant such other relief as is just and reasonable. Respectfully submitted, Robert L. O'Brien By: Robert L. O'Brien, Esquire Attorney for Plaintiff I. D. # 28351 19 West South Street Carlisle, Pennsylvania 17013 ELIZABETH A. WIAN, IN THE COURT OF COMMON PLEAS OF -- Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - EQUITY NO. 04-2149 EQUITY VINCENT C. MCCUE. = - - Defendant ORDER AND NOW, this 1:7 ' day of February, 2011, upon review of the most recent petition of the plaintiff and being in receipt of the defense request for hearing, further hearing in this matter is set for Thursday, March 17, 2011, at 10;30 a.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. The Court is inclined to agree with the plaintiff that we erred in charging her for the entire cost of the taxes and real estate maintenance in this case. The upcoming hearing will address this issue as well as the plaintiff's request that there be a private sale confined to the parties. BY THE COURT, -1? Kevin A `Robert L. O'Brien, Esquire For the Plaintiff '/Vincent McCue Defendant :rim '? gef+y A - Wi an , put copies i -7 t a?0 Hess, J. ELIZABETH A. WIAN, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2004- 2149 CIVIL TERM VINCENT C. McCUE, :CIVIL ACTION - IN EQUITY Defendants PETITION FOR EXCLUSIVE POSSESSION -- A .' 1. Plaintiff is Elizabeth A. Wan, an adult individual who resides at 41 °.AshG-urg 1 Drive, Mechanicsburg, Cumberland County, Pennsylvania 17050. 2. Defendant is Vincent C. McCue, an adult individual who resides at 460 St. John Drive, Camp Hill, Cumberland County, Pennsylvania. 3. Plaintiff and Defendant are co-owners and co-tenants of a certain tract of land located in Hampden Township that is known and numbered as 460 St. John Drive, Camp Hill, PA. 4. Defendant has had exclusive possession of the property for a number of years. Plaintiff has had no income from the property. Plaintiff has had this Partition proceeding pending since 2004 . 5. Plaintiff requested in September 2010 that the court consider giving her possession of the real estate. 6. At a hearing on December 30th, 2010, the Defendant averred that he was unable to attend a scheduled hearing due to being in assisted care in Delaware. He stated that he would be unable to attend by telephone. 7. On March 14, 2011 in reference to a hearing set for March 17, 2011, Defendant through his most recent counsel has stated that he had fallen and broken his hip and was hospitalized and could not attend the hearing. This has resulted in further delay to resolution of this matter. 8. On November 30, 2009 Mrs. Wan again sought to have her interest in the liquidated. In response to her petition in a pro se response Mr. McCue stated: In addition Defendant is an 83 year old man who receives social security In addition he has suffered serious health issues such as cancer and a stroke which left him paralyzed on his left side In addition he suffers from neck/back pain on a daily basis The residence that he resides in is a ranch home wherein he has live-in help whom assists him with his daily activities such as cooking cleaning bathing etc To sell the residence would be a detriment to Defendant living situation Defendant has been well established in his home for well over 28 years and would have no other place to go if the court would allow such sale 9. Plaintiff suggests that one of, if not the sole reason for the delay in resolving this case, is the ongoing possession of the real estate by the Defendant. It is apparent that Defendant intends to prolong this court matter until such time as he is forced from the home. 10. It is evident that the Defendant has professed ongoing health concerns dating prior to November, 2009. Plaintiff has repeatedly requested possession of the premises to sell the property. Defendant should be ordered to give up possession of the property. 11. He has options for residence such as assisted living facilities or nursing home care, alternatively he could rent a residence and arrange for assistance with his living. 12. What is evident is that on both of the last occasions where the Court has considered this matter at a scheduled hearing, the Defendant was outside the home. 13. By forcing the Defendant from the home a real incentive to resolve this matter will be achieved as he will want to secure his interest in the real estate for his needs. 14. The Plaintiff is weary of requiring public assistance to meet her minimum needs and having absolutely no disposable income to enjoy the waning years of her life. 15. Plaintiff requests exclusive possession of the property to ready it for sale. WHEREFORE, Plaintiff respectfully requests that this honorable Court: A. Order and Direct that the Defendant, Vincent McCue immediately vacate the premise and remove all the possessions that he doesn't want thrown away. That he cooperate in providing full access, egress and inspection of the real estate and improvements. B. Grant such other relief as is just and reasonable. Respectfully submitted, Robert L. O'Brien By - Robert L. O' rien, Esquire Attorney for Plaintiff I. D. # 28351 19 West South Street Carlisle, Pennsylvania 17013 717 249-6873 ELIZABETH A. WIAN, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION - EQUITY NO. 04-2149 EQUITY VINCENT C. MCCUE. Defendant : ORDER AND NOW, this /S-' day of March, 2011, hearing in the above-captioned matter set for March 17, 2011, is continued to Tuesday, April 12, 2011, at 10:00 a.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, xl?14L Kevin X.' Hess, J. Robert L. O'Brien, Esquire For the Plaintiff /James M. Robinson, Esquire For the Defendant 00pie's M r;!7 rlm ELIZABETH A. WIAN, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 04-2149 EQUITY VINCENT C. McCUE, CIVIL ACTION -EQUITY Defendant ca PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: 5c =-= r Kindly Enter the appearance of JAMES M. ROBINSON, ESQ . on behalf of the Defendant in the above-captioned matter. By: Jame . Robinsr ire Atto ID No. Turo Robinson A at Law 129 S outh Pitt Street Carlisle, PA 17013 (717) 245-9688 FAX (717)245-2165 Date: March 23, 2011 Attorney for Defendant o? ELIZABETH A. WIAN, Plaintiff V. VINCENT C. McCUE, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 0 NO. 2004- 2149 CIVIL TERM ?3 . .'? CIVIL ACTION - IN EQUITY cnrZ ? 3 0 ©? DC 2 ? Qn ' ORDER ."< w -c And Now, this Z 3 ? day of March, 2011, upon review of the attached .P&P-t.. 4 .-44. Petition, a Riga Tn Show ?'a?,cp, ?, ^.:ho Dof'n a t ar, te.Avhy the relief rpnuPCt d 0 2011. 1 ` 4/ By The Court Kevin A. Hess P.J. ? A. Wian &?es Maled Y?ne nt e. Meelm ? 1u U ??o6ert O' 3rien James M- -6binson, q., ELIZABETH A. WIAN, IN THE COURT OF COMMON PLEAS C-1 Plaintiff OF CUMBERLAND COUNTY,1t? r v CIVIL ACTION - EQUITY r`'rn n- .?rr- VINCENT C. McCUE, NO. 04-2149 - °? ° o Defendant y 7r PETITION TO INTERVENE'=., AND NOW comes Petitioner, Jeffrey Fedder, pro se, pursuant to Pa.R.C.P. 2326 et. seq. and Petitions this Honorable Court to grant Petitioner permission to intervene upon the following grounds: 1) The subject matter of this case is the proposed partition and sale of a property, owned by Plaintiff and Defendant, with a municipal address of 460 St. Johns Drive, Camp Hill, Cumberland County, Pennsylvania, tax parcel number 10-20-1846-069. 2) Plaintiff and Defendant, formerly husband and wife, purchased the subject property by deed dated May 11, 1960 and recorded in the Cumberland County, Pennsylvania Recorder of Deeds Office at Deed Book U, Volume 19, Page 560. 3) Petitioner believes and avers that Plaintiff and Defendant were divorced in the early 1980s. From the time of purchase until the time of the divorce, Plaintiff and Defendant held the property as tenants by the entireties. 4) Petitioner believes and avers that there was apparently no marital division of the subject property at the time of the divorce and, as such, upon the entry of the divorce decree, pursuant to 23 Pa.C.S.A 3507, the property has been owned by Plaintiff and Defendant as tenants in common, each with an equal one-half share of the value of the property. 5) Pursuant to 23 Pa.C.S.A. 3504, the Defendant, upon the entry of the divorce decree, was free to mortgage his undivided one-half interest in the property to Petitioner. 6) On June 16, 2010, for good and valuable consideration, the Defendant mortgaged his undivided one-half interest in the subject property to Petitioner. This mortgage was subsequently recorded in the Office of the Recorder of Deeds for Cumberland County, Pennsylvania on June 21, 2010 as instrument number 201016315 (see Exhibit 1). 7) Contemporaneous to the execution of the mortgage, Defendant and Petitioner executed a Note in the amount of one hundred and ten thousand ($110,000.00) dollars in favor of Petitioner (see Exhibit 2). 8) This Honorable Court, in its Memorandum and Interim Order, filed on February 1, 2011, indicated in Paragraph 3 therein, that Petitioner's, "mortgage is arguably void on its face" and "subject to divestment at the time of any subsequent sale". 9) Petitioner believes and avers, based upon this Court's Memorandum and Interim Order, that entry of a judgment in this action may adversely affect Petitioner's property interest. 10) Petitioner believes and avers that Petitioner may be adversely affected by a distribution or other disposition of the subject property. 11) Petitioner believes and avers that a determination by this Court in this action may affect Petitioner's legally enforceable interest in the subject property. 12) Though ordered to do so by this Court in the Memorandum and Interim Order filed by this Court on February 1, 2011, counsel for Plaintiff has failed to provide Petitioner notice of the proceedings a copy of the February 1, 2011 Memorandum and Interim Order of this Court until March 9, 2011. 13) Pursuant to an Order of this Court dated March 15, 2011, a hearing on this matter is scheduled before this Court on April 12, 2011 at 10:00 a.m. in Courtroom four of the Cumberland County Courthouse. 14) Pursuant to Pa.R.C.P. 1570(a)(3), Petitioner seeks to have this Court in its findings of fact indicate that Petitioner has a valid Mortgage executed against Defendant's undivided one-half interest in the subject property. 15) Pursuant to Pa.R.C.P. 1571(a)(2) and 1571(b), Petitioner asks this Honorable Court appoint a Trustee to receive payment of the principal sum necessary to secure the payment on account of Petitioner's mortgage and / or satisfaction of Petitioner's mortgage. 16) As Petitioner has never been served with a copy of any complaint or answer in this matter, if Petitioner's Petition to Intervene is granted, Petitioner seeks to file the attached New Matter. WHEREFORE, Petitioner respectfully requests that this Honorable Court grant Petitioner leave to intervene in this matter to file the attached New Matter, make finding of fact that Petitioner has a valid mortgage against Defendant's undivided one-half interest in the subject property, and appoint a trustee to receive any payments that may be made to Defendant to ensure payment toward or satisfaction of Petitioner's mortgage. RESPECTFULLY SUBMITTED Date: 5 Jef e dd Petitioner ELIZABETH A. WIAN, IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY, PA V. CIVIL ACTION - EQUITY VINCENT C. McCUE, NO. 04-2149 Defendant NEW MATTER AND NOW comes Defendant, Jeffrey Fedder, pro se, and presents the following new matter, averring in support thereof: 1) Defendant, Jeffrey Fedder, hereinafter "Defendant Fedder", is an adult individual residing at 257 George Lane, Selinsgrove, Pennsylvania 17870. 2) Defendant, Vincent C. McCue, hereinafter "Defendant McCue", is an adult individual residing at 460 St. Johns Drive, Camp Hill, Pennsylvania 17011. 3) Plaintiff, Elizabeth A. Wian, is an adult individual. Defendant Fedder is unaware of Plaintiff's address, but is aware that Plaintiff is represented in this matter by her attorney, Robert L. O'Brien, Esquire, who has an office located at 19 West South Street, Carlisle, Pennsylvania 17013. 4) The subject matter of this case is the proposed partition and sale of a property, owned by Plaintiff and Defendant McCue, with a municipal address of 460 St. Johns Drive, Camp Hill, Cumberland County, Pennsylvania, tax parcel number 10-20-1846-069. 5) Plaintiff and Defendant McCue, formerly husband and wife, purchased the subject property by deed dated May 11, 1960 and recorded in the Cumberland County, Pennsylvania Recorder of Deeds Office at Deed Book U, Volume 19, Page 560. 6) Defendant Fedder believes and avers that Plaintiff and Defendant McCue were divorced in the early 1980s. From the time of purchase until the time of the divorce, Plaintiff and Defendant McCue held the property as tenants by the entireties. 7) Defendant Fedder believes and avers that there was apparently no marital division of the subject property at the time of the divorce and, as such, upon the entry of the divorce decree, pursuant to 23 Pa.C.S.A 3507, the property has been owned by Plaintiff and Defendant McCue as tenants in common, each with an equal one-half share of the value of the property. 8) Pursuant to 23 Pa.C.S.A. 3504, Defendant McCue, upon the entry of the divorce decree, was free to mortgage his undivided one-half interest in the property to Defendant Fedder. 9) On June 16, 2010, for good and valuable consideration, Defendant McCue mortgaged his undivided one-half interest in the subject property to Defendant Fedder. This mortgage was subsequently recorded in the Office of the Recorder of Deeds for Cumberland County, Pennsylvania on June 21, 2010 as instrument number 201016315 (see Exhibit 1). 10) Contemporaneous to the execution of the mortgage, Defendant McCue and Defendant Fedder executed a Note in the amount of one hundred and ten thousand ($110,000.00) dollars in favor of Defendant Fedder (see Exhibit 2). 11) This Honorable Court, in its Memorandum and Interim Order, filed on February 1, 2011, indicated in Paragraph 3 therein, that Defendant Fedder's, "mortgage is arguably void on its face" and "subject to divestment at the time of any subsequent sale". 12) Defendant Fedder believes and avers, based upon this Court's Memorandum and Interim Order, that entry of a judgment in this action may adversely affect Defendant Fedder's property interest. 13) Defendant Fedder believes and avers that he may be adversely affected by a distribution or other disposition of the subject property. 14) Defendant Fedder believes and avers that a determination by this Court in this action may affect his legally enforceable interest in the subject property. 15) Though ordered to do so by this Court in the Memorandum and Interim Order filed by this Court on February 1, 2011, counsel for Plaintiff has failed to provide Petitioner notice of the proceedings a copy of the February 1, 2011 Memorandum and Interim Order of this Court until March 9, 2011. 16) Pursuant to an Order of this Court dated March 15, 2011, a hearing on this matter is scheduled before this Court on April 12, 2011 at 10:00 a.m. in Courtroom four of the Cumberland County Courthouse. 17) Pursuant to Pa.R.C.P. 1570(a)(3), Defendant Fedder seeks to have this Court, in its findings of fact, indicate that Defendant Fedder has a valid mortgage executed against Defendant McCue's undivided one-half interest in the subject property. 18) Pursuant to Pa.R.C.P. 1571(a)(2) and 1571(b), Defendant Fedder asks this Honorable Court appoint a Trustee to receive payment of the principal sum necessary to secure the payment on account of Defendant Fedder's mortgage and / or satisfaction of Defendant Fedder's mortgage. WHEREFORE, Defendant Fedder respectfully requests that this Honorable Court make finding of fact that Defendant Fedder has a valid mortgage against Defendant McCue's undivided one-half interest in the subject property, and appoint a trustee to receive any payments that may be made to Defendant McCue pursuant to this partition to ensure payment toward or satisfaction of Defendant McCue's mortgage. RESPECTFULLY SUBMITTED Date: Je ey der, Ofendant VERIFICATION TO PETITION I, Jeffrey Fedder, Petitioner, verify that the facts set forth in the attached Petition to Intervene and New Matter are true and correct to the best of my knowledge information and belief. Petitioner understands that false statements herein made are subject to the penalties of 18 Pa. C. S. Section 4904, relating to unsworn falsification to authorities. Dated: 5? i Je ey e er ;' CERTIFICATE OF SERVICE AND NOW, this day of April, 2011, I, Jeffrey Fedder, pro-se petitioner, hereby certify that I served petitioner's Petition to Intervene and defendant's New Matter by depositing the same in the United States mail, first-class, postage prepaid, addressed to: James M. Robinson, Esquire Thomas L. O'Brien, Esquire Turo Robinson 19 West South Street 129 South Pitt Street Carlisle, Pennsylvania 17013 Carlisle, Pennsylvania 17013 Vincent C. McCue 460 St. Johns Drive Camp Hill, Pennsylvania 17011 41 Date: Jeffr er e itioner Defendant 10 NOTE Borrower: Vincent C. McCue Lender: Jeffrey A. Fodder Date: June 16, 2010 Address: 460 N. St. Johns Drive Camp Hill, PA 17011 1. Borrower's Promise to Pay In return for a loan that I have received, [promise to pay $110,000.00, (this amount is card "principal"), to the order of the Lender. The Lender is Jeffrey A. Fedder. I understand that the Lender may transfer this Mote. The Lender or anyone who tapes this Dote by transfer and who is entitled to receive payments underthis Note is called the "Note Holder." 2. Interest Interest will not be charged on unpaid principal. 3. Payments At my discretion, I may pay principal by making payments every month. I may make my discretionary monthly payments at 257 George Lane, Selinsgrove, Pennsylvania or at a different place if required by the Note Holder. 4. Borrower's Right to Prepay I have the right to make payments of principal at any time before they are due. A payment of principal only is known as a "prepayment." When I make a prepayment, I will tell the dote Holder in writing that I am doing so. I may make a full prepayment or partial prepayments without paying any prepayment charge. The Dote Holder will use all of my prepayments to reduce the amount of principal that I owe under this Note. If I make a partial prepayment, there will be no changes in the due date or in the amount of my discretionary monthly payment unless the Mote Holder agrees in writing to those changes. 5. Loan Charges If a law, which applies to this loan and which sets maximum loan charges, is finally interpreted so that the interest or other loan charges collected or to be collected in connection with this loan exceed the permitted limits, then: (i) any such loan charge shall be reduced by the amount necessary to reduce the charge to the permitted limit; and (ii) any sums already collected from me which exceeded permitted limits will be refunded to. me. The Note Holder may choose to make this refund by reducing the principal l owe under this Note or by making .a direct payment to me. If a refund reduces principal, the reduction will be treated as a partial prepayment. 6. Borrower's Failure to Pay as Required a. No Waiver By Note Holder Even if, at a time when I am in default, the Note Holder does not require me to pay immediately in full, the Note Holder will still have the right to do spa if I am in default at a later time- b. Payment of Note Holder's Costs and Expenses If the Note Holder has required me to pay immediately in full as described above, the Note Holder will have the right to be paid back by me for all of its costs and expenses in enforcing this Note to the extent not prohibited by applicable law.. Those expenses include, for example, reasonable attorney's fees. 7, Living of Notices Unless applicable law requires a different method, any notice that must be given to me under this Note will be given by delivering it or by mailing it by first class mail to me at the Property Address above or at a different address if l give the Note Holder a notice of my different address. Any notice that must be given to the Note Holder under this Note will be given by mailing it by first class mail to the Note Holder at the address stated in Section 3 above or at a different address if I am given a notice of that different address. 8. Obligations of Persons Under this Note if more than one person signs this Note, each person is fully and personally obligated to keep all of the promises made in this Note, including the promise to pay the full amount owed. Any person who is a guarantor, surety or endorser of this Note is also obligated to do these things. Any person who takes over these obligations, including the obligations of a guarantor, surety or endorser of this Note, is also obligated to keep all of the promises made in this Note. The Note Holder may enforce its rights under this Note. against each person individually or against all of us together. This means that any one of us may be required to pay all of the amounts owed under this Note. 9. Waivers I and any other person who has obligations under this Note waive the rights of presentment and notice of dishonor.. "Presentment' means the right to require the Note Holder to demand payment of amounts due. "Notice of dishonor' means the right to require the Note Holder to give notice to other persons that amounts due have not been paid 10. Uniform Secured Note This Note is a uniform instrument with limited variations in some jurisdictions.. In addition to the protections given to the Note Holder under this Note, a Mortgage, Deed of Trust or Security Deed (the "Secur"ity Instrument"), dated the same date as this Note, protects the Note Holder from possible losses which might result if I do not keep the promises which I make in this Note. That Security Instrument describes how and under what conditions i may be required to make immediate payment in full of all amounts 1 owe under this Note. Some of those conditions are described as follows: Transfer of the Property or a Beneficial Interest in Borrower. If all or any part of the Property or any interest in it is sold or transferred (or if a beneficial interest in Borrower is sold or transferred and Borrower is not a natural person) without Lender's prior written consent, Lender may, at its option, require immediate payment in full of all sums secured by this Security Instrument. However, this option shall not be exercised by Lender if exercise is prohibited by federal law as of the date of this Security Instrument. If Lender exercises this option, Lender shall give Borrower notice of acceleration. The notice shall provide a period of not less than 30 days from the date the notice is delivered or mailed within which Borrower must pay all sums secured by this Security Instrument. If Borrower fails to pay these sums prior to the expiration of this period, Lender may invoke any remedies permitted by this Security Instrument without further notice or demand on Borrower. WITNESS THE HANDS AND SEALS OF'THE UNDERSIGNED. i C. ?00011111 Parcel No. 10-20-18"-069 MORTGAGE This Mortgage made this 16th day of June 2010 between Vincent C. McCue of 460 N. St. Johns Drive, Camp Hill, Pennsylvania., herein called "Borrower", and Jeffrey A. Felder, of 257 George Lane, Selinsgrove, Pennsylvania, herein called "Lender." WITNESSETH, that to secure payment by Borrower of a Note dated the same as this Mortgage in the sum of $110,000.00, Borrower does by these presents sell, grant and convey to Lender, a lien on the following described real estate situate in the Township of Hampden, County of Cumberland, Commonwealth of Pennsylvania, described as follows: See Attached Legal Description TOGETHER WITH all the improvements now or hereafter erected on the property, and all easements; appurtenances, and fixtures now or hereafter a part of the property. All replacements and additions shall also be covered by this Security Instrument. All of the foregoing is referred to in this Security Instrument as the "Property." Unless prohibited Under state law; as additional security, Borrowers hereby give to and confer upon Lender the right, power, and authority, during the continuance of this Mortgage, to collect the rents, issues, and profits of said property, reserving unto Borrowers the right prior to any default by Borrowers in payment of any indebtedness secured hereby or in performance of any agreement hereunder, to collect and retain such rents, issues and profits as they became due and payable. Upon any such default, Lender, upon giving written notification to the Borrowers or their successors, etc., may either in person, by agent, or by a receiver to be appointed by a court, and without regard to the adequacy of any security for the indebtedness hereby secured, enter upon and take possession of said property or any park thereof, in his own name, sue for otherwise collect such rents, issues and profits, including those past due and unpaid, and apply the same, less allowable expenses of collection of such rents, issues and profits, and the application thereof aforesaid, shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice. THIS Mortgage is made subject to the following conditions, and Borrowers agree: 1. Borrowers will make all payments on the due date thereof and perform all other obligations as required or provided herein and in said Note.. 2. Borrowers will pay when due all taxes and assessments levied or assessed against said premises or any part thereof, and will deliver receipts therefor the Lender upon request. 3. Borrowers will keep the improvements now existing or hereinafter erected on the premises insured against loss or damage by fire and other hazards and perils included within the scope of a standard extend coverage endorsement, and such other hazards as Lender may require, in such amounts and for such periods as Lender may require, and in an insurance company or insurance companies acceptable to Lender. All insurance policies and renewals shall designate Lender as mortgage loss payee and shall be in a form acceptable to Lender. Borrowers hereby confer full power on. Lender to settle and. compromise all loss claims on all such policies; to demand, receive, and receipt for all proceeds becoming payable thereunder; and, at Lender. 4. If Borrowers fail to perform the covenants and agreements contained in this. Mortgage, including, without limitation, covenants to pay takes, procure insurance, and protect against prior liens, Lender may at its option, but shall not be required. to, disburse such sums and take such actions necessary to pay such taxes, procure such insurance, or otherwise to protect Lender's interest. Any amount disbursed by Lender hereunder shall be an additional obligation of Borrowers secured by this Mortgage. Unless Borrowers and Lender agree otherwise, all such amounts shall be payable immediately by Borrowers upon notice from Lender to Borrowers, and may bear interest from the date of disbursement by Lender at the lesser of the Agreed Rate of Interest stated in the Note or the highest interest rate permissible by applicable law. Nothing contained in this paragraph shall require Lender to incur any expense or take any action whatsoever.. 5. Borrowers will neither commit nor suffer any strip, waste, impairment or deterioration of the mortgaged premises, and will maintain the same in good order and repair. 6. In the event the Borrowers sell, agree to sell, convey, assign or alienate the Mortgage Premises, all obligations secured by this Mortgage shall become due and payable at the option of the Lender. 7. In the event the Borrowers default in the making of any payment due and payable under said Mote, or in the keeping and performance by Borrowers of any the conditions or covenants of this Mortgage or said Dote, Lender may forthwith bring an Action of Mortgage Foreclosure hereon, or institute other foreclosure proceedings upon this Mortgage, and may proceed to judgment and execution to recover the balance due on said Note and any other sums that may be due thereunder, including attorney fees of 15% of the balance due and payable on said Note, costs of sale together with interest after judgment at the rate charged under the terms of the Note. BUT PROVIDED ALWAYS,: that if Borrowers do pay or cause this Mortgage and the debt hereby secured to be paid in full on the day and in the manner provided in said Note, then this Mortgage and the estate hereby granted. shall cease and determine and become void, anything herein to the contrary notwithstanding. The covenants herein contained shall bind, and the benefits and advantages shall inure to the respective heirs, executors, administrators, successors, and assigns of the parties hereto. Whenever used, the singular number shall include the plural, the plural the singular, and the use of any gender shall be applicable to all genders. Payment of this Mortgage is subject to the terms and conditions of said Note of even date between Borrowers and Lender. IN WITNESS WHEREOF, the said Borrower has signed this Mortgage with seal affixed, on the date first above written. Signed, Sealed and Delivered in the Presence 1 f Witness Of. B a41NER COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND On this r t' day of -' , 2010, before me, a. Notary Public, came Vincent C. McCue, the Borrower above named, and acknowledged the within Mortgage to be his act and deed, and desired the same to be recorded as such. WITNESS my hand and seal the day and year aforesaid. AN NW f1 LT+4 OF PENNSYLVANIA Nokow OW08 , NOWY POW Cap" Ba% ciNTftftW eo,my .` ?-?•{-d ,` . s.?1,soas Note Public _ CERTIFICATE OF RESIDENCE the Lender named in the forgoing M g ge, hereby certify that the address of said Lender is: 257 George Lane Selingrove, Pennsylvania 17870 7'k WITNESS my hand, this day of } _ 201+0. Legal Description ALL THAT CERTAIN lot of land situate in the Township of Hampden, County of Cumberland and State of Pennsylvania, more particularly bounded and described as follows, to wit: BEG#NNING at an iron pin in the intersection of the northern line of West Circle and the western fine of Point Ridge Drive, as shown on the hereinafter mentioned Plan of Lots; thence South eighty-three (83) degrees five (5) minutes West along the norther line of West Circle one hundred ten (110) feet to a point; thence North twenty (20) degrees seven (7) minutes West along the eastern line of Lot No. 8 as shown on the said Plan, one hundred seventy-four and forty-five hundredths (174.45) feet to a stake; thence North eighty-three (83) degrees five (5) minutes East along the southerly line of Lot No. 10 as shown on said Plan, one hundred fifty (150) feet to an iron pin at the western line of Point Ridge Drive, now known as St. Johns Drive; thence South six (6) degrees fifty-five (55) minutes East, along the westernfine of Point Ridge Drive one hundred seventy (170) feet to the place of BEGINNING. BEING Lot No. 9 as shown on Plan of Lots, Section 1, Point Ridge Farm, Hampden Township, Cumberland County, Pennsylvania, said Plan being recorded in the Cumberland County Recorder's Office in Plan Book B, Page 2. HAVING thereon erected a one story brick ranch dwelling with attached two car garage. BEING the same premises which Ronald P. Guschel and Mary E.. Guschel, his wife, by their deed dated May 11, 1960 and recorded in the Recorder of Deeds Office in and for Cumberland County, Pennsylvania, in Deed Book U, Volume 19, Page 560, granted and conveyed unto Vincent C. McCue and Elizabeth A. Wian, formerly Elizabeth A. McCue. ROBERT P. ZIEGLER RECORDER OF DEEDS CUMBERLAND COUNTY 1 COURTHOUSE SQUARE CARLISLE, PA 17013 717-240-63.70 Instrument Number - 201016315 Recorded On 6/21/2010 At 1:27:57 PM * Instrument Type - MORTGAGE Invoice Number - 676$2 User ID - AF Mortgagor - MCCUE, VINCENT C Mortgagee - FEDDER, JEFFREY .A * Customer - TURO FEES STATE WRIT TAX $0.50 STATE JCS/ACCESS TO $23.50 JUSTICE RECORDING FEES - $13.50 RECORDER OF DEEDS PARCEL CERTIFICATION $10.00 FEES AFFORDABLE HOUSING $11.50 COUNTY ARCHIVES FEE $2.00 ROD ARCHIVES FEE $3.00 TOTAL PAID $64.00 * Total Pages - 6 Certification Page DO NOT DETACH This page is now part of this legal document. I Certify this to be recorded in Cumberland County PA RECORDER Q * - Information denoted by an asterisk may change during the verification process and may not be reflected on this page. 0002.. 11111111H111111 ELIZABETH A. WIAN, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVAX0 = -+ Xa- VS. CIVIL ACTION - EQUITY 1 C:1 NO. 04-2149 EQUITY 0 VINCENT C. MCCUE. Defendant > co -? ? ORDER AND NOW, this / V day of April, 2011, the petition of Jeffrey Fedder, Pro Se, to intervene is GRANTED. A final hearing with regard to the interest of the parties in the property located at 460 St. Johns Drive, Camp Hill, Cumberland County, Pennsylvania, is set for Wednesday, June 15, 2011, at 10:00 a.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. The parties unable to attend the hearing on June 15, 2011, will be authorized to participate by telephone unless an objection to that form of participation is filed within ten (10) days of this order. BY THE COURT, -,A/" Kevin P/ Hess, J. ? Robert L. O'Brien, Esquire For the Plaintiff James M. Robinson, Esquire For the Defendant Jeffrey Fedder, Pro Se 257 George Lane Selinsgrove, PA 17870 ?? r4la? n?S :rlm 1 Tp?N FAST J^ r 4 SY ?j , P. Richard Wagner, Esquire Attorney ID No. 23103 Mancke, Wagner & Spreha 2233 North Front Street Harrisburg, PA 17110 Telephone (717) 234-7051 Fax (717) 234-7080 Attorney for Intervener ELIZABETH A. WIAN, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. VINCENT C. MCCUE, : NO. 04-2149 EQUITY Defendant V. JEFFREY FEDDER, Intervener CIVIL ACTION - EQUITY MOTION FOR CONTINUANCE AND NOW, comes the Intervener, Jeffrey Fedder, by and through his attorneys, Mancke, Wagner & Spreha, and files the following Motion For Continuance: 1. Jeffrey Fedder is the Intervener having been granted permission on April 19, 2011, by way of an Order attached hereto and incorporated as Exhibit "A". 2. A final hearing in the matter is scheduled for June 15, 2011, at 10:00 a.m. in Courtroom No. 4. 3. The Intervener has retained the undersigned counsel to represent his interests at the hearing. 4. Undersigned counsel is scheduled for a full day custody hearing in the Court of Common Pleas in the matter of Kratzer v. Messick at FC-2010-247, said hearing scheduled for June 15, 2011 at 8:30 a.m. by way of a Court Order dated March 30, 2011. 5. Counsel for the Intervener is therefore unavailable to attend the hearing on behalf of the Intervener, the Petitioner herein. 6. Petitioner herein through counsel contacted counsel for the Defendant, who concurs in this request. 7. Counsel for the Petitioner herein has contacted counsel for the Plaintiff who does not concur in this Motion. WHEREFORE, Petitioner requests the Court to reschedule the hearing due to the unavailability of Petitioner's counsel. 8. It should be noted that the Intervener's Petition was filed April 6, 2011 and it was noted in said Petition to Intervene, that the counsel for the Plaintiff failed to provide the Petitioner notice of any proceedings prior to March 9, 2011. 9. Petitioner believes that there is no prejudice to any party to grant this Motion For Continuance. -2- WHEREFORE, Petitioner requests the Court to grant relief as requested. Respectf submitted, FT- and Wagner, Esquire I.D.# 23103 2233 North Front Street Harrisburg, PA 17110 (717) 234-7051 Dated: June 7, 2011 Attorney for Intervener -3- VERIFICATION 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.A. §4904, relating to unsworn falsification to authorities. Date: JU D I 1. ? ? 1 ? J ELIZABETH A. WIAN, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - EQUITY NO. 04-2149 EQUITY VINCENT C. MCCUE. Defendant ORDER AND NOW, this 1V day of April, 2011, the petition of Jeffrey Fedder, Pro Se, to intervene is GRANTED. A final hearing with regard to the interest of the parties in the property located at 460 St. Johns Drive, Camp Hill, Cumberland County, Pennsylvania, is set for Wednesday, June 15, 2011, at 10:00 a.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. The parties unable to attend the hearing on June 15, 2011, will be authorized to participate by telephone unless an objection to that form of participation is filed within ten (10) days of this order. BY THE COURT, Kevin Hess, J. Robert L. O'Brien, Esquire For the Plaintiff James M. Robinson, Esquire For the Defendant Jeffrey Fedder, Pro Se 257 George Lane Selinsgrove, PA 17870 Am EXHIBIT ELIZABETH A. WIAN, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. VINCENT C. MCCUE, : NO. 04-2149 EQUITY Defendant :rm a---) _r CIVIL ACTION - EQUITY pr t- JEFFREY FEDDER, Intervener ORDER AND NOW, this / y? day of C?u??t? , 2011, upon Petition of the Intervener, Jeffrey Fedder, the hearing set for June 15, 2011, at 10:00 a.m. is hereby ,w. In CONTINUED until the day of , 2011, at,?t Mj o'clock, in Courtroom No. 4, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT: /,;;% J. - Distribution: / Robert L. O'Brien, Esq., 19 West South Street, Carlisle, PA 17013 es T" .i James M. Robinson, Esq., 129 South Pitt Street, Carlisle, PA 17013 //P. Richard Wagner, Esq., 2233 North Front Street Harrisburg, PA 17110 ELIZABETH A. WIAN, C) IN THE COURT OF COMMON PLEAS OF c CD Plaintiff CUMBERLAND COUNTY, PENNSYLVAT C rat _ c° M - vs. CIVIL ACTION - EQUITY, A - ::06 NO. 04-2149 EQUITY r - -+o VINCENT C. MCCUE. c> C)- Defendant = C, N) c7 c, ORDER AND NOW, this day of July, 2011, following hearing, the defendant, Vincent C. McCue, is directed, not later than forty-five (45) days from the date of this order, to vacate and thereafter be excluded from the residence at 460 St. Johns Drive, Camp Hill, Cumberland County, Pennsylvania. Within the same time period, the defendant is ordered and directed to convey the premises, by deed, to the plaintiff, Elizabeth A. Wian. Unless said deed is forthcoming from counsel for the defendant, counsel for the plaintiff may prepare the deed for appropriate signature. BY THE COURT, X? Kevi Hess, J. Robert L. O'Brien, Esquire For the Plaintiff James M. Robinson, Esquire For the Defendant M 11411 P. Richard Wagner, Esquire 06 For the Intervenor ELIZABETH A. WIAN, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - EQUITY NO. 04-2149 EQUITY VINCENT C. MCCUE. Defendant MEMORANDUM AND ORDER Our most recent hearing in this matter was held on June 20, 2011. Additional testimony was taken. Specifically, the plaintiff demonstrated that little or no maintenance had been performed on the real estate located at 460 St. Johns Drive, Camp Hill, Cumberland County, Pennsylvania. The defendant attempted to demonstrate that the rental value of said property does not exceed $800.00 per month. Even accepting this recently proffered testimony as true, there is no effect on the ultimate outcome of the case. Accordingly, we will continue to use the various valuations arrived at in our order of January 31, 2011. We do agree, however, with the plaintiff that we have erred in charging her for the entire cost of the taxes and real estate maintenance during the period when she was out of possession. Instead, she is chargeable with one-half the taxes or $1,187.50, and one-half the maintenance or $925.00, for a total owed of $2,112.50. By the same token, she is entitled to one-half the rental value of the property or $6,000.00 per year. There is, therefore, an annual debt in her favor of $3,887.50 which, over a period of thirty years exceeds $116, 600.00. When this is added to her one-half share of the real estate of $92,500.00, her interest in the real estate exceeds its value by more than $15,000.00. Since our last order in this matter, Jeffrey Fedder has been granted leave to intervene. He is a mortgagee of the 460 St. Johns Drive property. There is no dispute that he had constructive notice of this partition action. He claims, however, that the court lacks jurisdiction because of a prior divorce action in which the real estate was subject to equitable distribution. Our order of May 17, 2011, however, declared that issues of equitable property distribution were not properly pled or preserved in the prior divorce action of the parties. Perhaps more importantly, Mr. Fedder, as an intervenor, is bound by the provisions of Rule Pa.R.C.P. 2329(1) and cannot maintain claims or defenses which are not in subordination to and in recognition of the propriety of the action. In short, he cannot intervene in a partition action for the purpose of asserting that the court lacks jurisdiction. To quote pertinent case authority, the "intervenor takes the litigation as he finds it." Sell v. Douglas Tp. Zoning Hearing Board, 613 A.2d 162 at 164 (Pa.Cmwlth. 1992) citing .Appeal of the Municipality of Penn Hills, 546 A.2d 50 (Pa. 1988). ORDER AND NOW, this t I day of July, 2011, following hearing, the defendant, Vincent C. McCue, is directed, not later than forty-five (45) days from the date of this order, to vacate and thereafter be excluded from the residence at 460 St. Johns Drive, Camp Hill, Cumberland County, Pennsylvania. Within the same time period, the defendant is ordered and directed to convey the premises, by deed, to the plaintiff, Elizabeth A. Wian. Unless said deed is forthcoming from counsel for the defendant, counsel for the plaintiff may prepare the deed for appropriate signature. BY THE COURT, Hess, J. Robert L. O'Brien, Esquire For the Plaintiff James M. Robinson, Esquire For the Defendant P. Richard Wagner, Esquire For the Intervenor 2 AUG -8 pM 4: ! UMBERC.AHD PE NNS Y,_VAAfg11. ELIZABETH A. WIAN, Plaintiff V. VINCENT C. McCUE, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2004 - 2149 CIVIL TERM CIVIL ACTION - IN EQUITY JUDGE: KEVIN A. HESS PETITION REQUESTING TRANSCRIPTION OF PROCEEDINGS AND NOW comes Petitioner, Bradley L. Griffie, Esquire, and the law firm of Griffie & Associates, counsel of record for the above-named Defendant, Vincent C. McCue, and petitions the Court as follows: 1. Your Petitioner is the counsel of record through the filing of a Notice of Appeal to the Superior Court on behalf of the Defendant, Vincent C. McCue. 2. The last hearing held in this matter on June 20, 2011, which resulted in the Court's Order of July 11, 2011, must be transcribed in order to have that testimony and evidence available for Superior Court on appeal. 3. Defendant is prepared to pay the cost of the transcription of the proceedings held by the Court on June 20, 2011. 4. Notice of this Petition has been given to Plaintiff, by simultaneously mailing a copy of the foregoing to Plaintiff's attorney of record, Robert L. O'Brien, Esquire, via first-class U.S. mail, adequate postage attached, to his address of record. 5. The judge assigned to this case is the Honorable Kevin A. Hess. WHEREFORE, Petitioner requests your Honorable Court to enter an Order directing the stenographer in this matter to transcribe the notes of testimony and the related on- record proceedings in this matter from June 20, 2011. 4 of 6,- qu L. ail i f t -k- Bradley L. Griffie, Esquire Attorney for Defendant GRIFFIE & ASSOCIATES 200 North Hanover Street Carlisle, PA 17013 (717) 243-5551 (800) 347-5552 Supreme Court ID# 34349 Date: August 8, 2011 VERIFICATION 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 falsifications to authorities. DATE:' -1- ?\ Hannah Herman-Snyder Q GRIFFIE & ASSOCIATES 200 North Hanover Street Carlisle, PA 17013 (717) 243-5551 Supreme Court ID# 91537 ELIZABETH A. WIAN, Plaintiff V. VINCENT C. McCUE, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA zoo y - z, 4c( NO. 286 ---2f 9 CIVIL TERM CIVIL ACTION - IN EQUITY JUDGE: KEVIN A. HESS CERTIFICATE OF SERVICE I hereby certify that I have this 8`" day of August, 2011, served the foregoing Petition Requesting Transcription of Proceedings with attached proposed Order of Court, by depositing a copy of the same in the United States mail, first-class, postage prepaid at Carlisle, Pennsylvania, addressed to the following: Stenographer 3R Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Robert L. O'Brien 17 West South Street Carlisle, PA 17013 Attorney for Plaintiff DATE: 'K A-( ?5 ?- _z, -? Linffl aM. Markle, Legal Assistant to Bradley L. Griffie, Esquire Attorney for Defendant GRIFFIE & ASSOCIATES 200 North Hanover Street Carlisle, PA 17013 (717)243-5551 n C_- _-O G-) M .! > Cp GJ i _ ELIZABETH A. WIAN, f IN THE COURT OF COMMON PLEAS Off' r'. ` Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA N-'21 Y9 V. : NO. _208I " ^" CIVIL TERM VINCENT C. McCUE, CIVIL ACTION - IN EQUITY Defendant JUDGE: KEVIN A. HESS NOTICE OF APPEAL Notice is hereby given that Vincent C. McCue, Defendant above-named, hereby appeals to the Superior Court of Pennsylvania from the Order entered on the 11th day of July, 2011, in this matter. This Order has been entered in the docket as evidenced by the attached copy of the docket entries. ;,,I yeU,1. far &atl. Le v t_ Ea n f{' , 4-H xj 1,D-4 q ('5 3 -1 Bradley L. Gnffie, Esquire Attorney for Defendant GRIFFIE & ASSOCIATES 200 North Hanover Street Carlisle, PA 17013 (717) 243-5551 (800) 347-5552 Supreme Court ID# 34349 Date: August 8, 2011 448-M Pk Arr/ e? 38a3 e? a?a q?l7 ELIZABETH A. WIAN, IN THE COURT OF COMMON PLEAS OF Appellee CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW VS. NO. 04-2149 CIVIL VINCENT C. MCCUE Appellant -< > IN RE: APPEAL OF DEFENDANT r . I v ORDER 7 AND NOW, August 10, 2011, in accordance with Rule 1925 of the Rules of AppeWate Procedure, the Defendant having filed a notice of appeal, the appellant is directed to file of record, within twenty-one (21) days hereof, and serve upon the undersigned a concise statement of the matters complained of on the appeal. ? Robert L. O'Brien, Esquire For the Appellee V Bradley L. Griffie, Esquire For the Appellant ? C el,1111 00 BY THE COURT, 7 mac.. Kev' Hess, J. : rlm 4 _FILED-jO'jFFr10E 201 11 10 ELIZABETH A. WIAN, Plaintiff V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 200't- 2.4.1 NO. 2441--2+49 CIVIL TERM VINCENT C. McCUE, Defendant CIVIL ACTION - IN EQUITY JUDGE: KEVIN A. HESS ORDER OF COURT AND NOW this /0 day of A-f k- ` , 2011, upon presentation and consideration of the within Petition, it is hereby ordered and directed that the Court Stenographer shall transcribe the notes of testimony from the last hearing held in this matter, on June 20, 2011. BY THE COURT, ..,?/C/1- in,4' Hess, J. cc: Bradley L. Griffie, Esquire Attorney for Defendant 00pies Robert L. O'Brien., Esquire 81101« Attorney for Plaintiff 446 Karen Reid Bramblett, Esq. Pennsylvania Judicial Center Prothonotary Middle District P.O. Box 62435 Milan K. Mrkobrad, Esq. 601 Commonwealth Avenue, Suite 1600 Deputy Prothonotary Harrisburg, PA 17106-2435 August 12, 2011 (717) 772-1294 www. superior. court. state. pa. us Buell, David D. Prothonotary Cumberland County Courthouse 1 Courthouse Square - Carlisle, PA 17013 m r r ? ?- :T) r RE: Elizabeth A. Wian -<? -- V. r-° <1 cn , Vincent C. Mccue -r Appellant ==' - ;. 1390 MDA 2011 Trial Court Docket No: 04-2149 Dear David D. Buell: Enclosed please find a copy of the docket for the above appeal that was recently filed in the Superior Court. Kindly review the information on this docket and notify this office in writing if you believe any corrections are required. Appellant's counsel is also being sent a Docketing Statement, pursuant to Pa.R.A.P. 3517, for completion and filing. Please note that Superior Court Dockets are available on the Internet at the Web site address printed at the top of this page. Thank you. Respectfully, Milan K. Mrkobrad, Esq. Deputy Prothonotary /wjt Enclosure 11:56 A.M. Appeal Docket Sheet Docket Number: 1390 MDA 2011 Page 1 of 2 Superior Court of Pennsylvania Secure August 12, 2011 Elizabeth A. Wian V. Vincent C. Mccue Appellant Initiating Document: Notice of Appeal Case Status: Active Case Processing Status: August 12, 2011 Awaiting Original Record Journal Number: Case Category: Civil Case Type(s): Civil Action Law Equity ?t • ONO P 106 rs w r.. Will 11011WOR ?i e tx Next Event Type: Receive Docketing Statement Next Event Due Date: August 26, 2011 Next Event Type: Original Record Received Next Event Due Date: October 7, 2011 Appellant Mccue, Vincent C. Pro Se: No Appoint Counsel Status: Represented IFP Status: No Attorney: Bar No: Law Firm: Address: Phone No: Receive Mail: Receive Entail Griffie, Bradley Leroy 034349 Griffie & Associates 200 N Hanover St Carlisle, PA 17013 (717) 243-5551 Yes Fax No: (717) 243-5063 Yes EMail Address: bgriffie@griffielaw.com Appellee Wian, Elizabeth A. Pro Se: No Appoint Counsel Status: Represented IFP Status: No Attorney: Bar No: Law Firm: Address: Phone No: Receive Mail: Receive EMail: O'Brien, Robert L. 028351 O'Brien, Baric & Scherer 17 W South St Carlisle, PA 17013 (717) 249-6873 Yes No Fax No: (717) 249-5755 11:56 A.M. Appeal Docket Sheet Docket Number: 1390 MDA 2011 Page 2 of 2 August 12, 2011 Superior Court of Pennsylvania Secure Fee Dt Fee Name Fee Amt Receipt Dt Receipt No Receipt Amt 08/12/2011 Notice of Appeal 73.5008/12/2011 2011-SPR-M-000702 73.50 Court Below: Cumberland County Court of Common Pleas County: Cumberland Division: Cumberland County Civil Division Order Appealed From: July 11, 2011 Judicial District: 09 Documents Received: August 12, 2011 Notice of Appeal Filed: August 8, 2011 Order Type: Order Entered OTN(s): Lower Ct Docket No(s):04-2149 Lower Ct Judge(s): Hess, Kevin A. President Judge Original Record Item 7?. `. Filed Date Content Description Date of Remand of Record: None None Filed Date Docket Entry / Representing Participant Type Filed By August 12, 2011 Notice of Appeal Docketed Appellant Mccue, Vincent C. August 12, 2011 Docketing Statement Exited (Civil) Middle District Filing Office CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) Superior Court of PA To the Prothonotary of the Apellate Court to which the within matter has been appealed: Superior Court of Pennsylvania The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: ELIZABETH A. WIAN Vs. VINCENT C. MCCUE 2004-2149 1390 MDA 2011 The documents comprising the record have been numbered from No. 1 to 310, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmittedtQ the Appellate Court is 10/6/2011. D`a-vid-f I. Buell, Pr Alma Kostjerevac, An additional copy of this certificate is enclosed. Please AM and date copy, thereby acknowledzine receipt of this record. Date Signature & Title Commonwealth of Pennsylvania County of Cumberland ss: 1, David D. Buell , Prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full, true and correct copy of the whole record of the case therein stated, wherein ELIZABETH A. WIAN Plaintiff, and VINCENT C. MCCUE Defendant, as the same remains of record before the said Court at No. 2004-2149 of Civil Term. In TESTIMONY WHEREOF, I have hereunto set my hand and affixed th eat of said Court this 6TH day of "\ 9?TOBER A. D., 2011 Prothonotary 1, Kevin A. Hess President Judge of the I Ninth Judicial District, composed of the County of Cumberland, do certify that David D. Buell , by whom the annexed record, certificate and attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas of'said County, was, at the time of so doing, and now is Prothonotary in and for said County of' Cumberland in the Commonwealth of Pennsylvania, duly commissioned and qualified to all of whose acts as such full faith and credit are and ought to be given as well in Courts of judicature a elsewhere, and tha the said record, certificate and attestation are in due form of law and made by proper offli r. President Judge Commonwealth of Pennsylvania County of Cumberland ss. 1 David D. Buell , Prothonotary of the Court of Common Pleas in and for the said County, do certify that the Honorable Kevin A. Hess by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time of making thereof, and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court this 6TH } of OCTOBER A.D. 2011 Prothonotary No. Term 19 2004.2149 No 1390MDA2011 Civil Term ELIZABETH A. WIAN Versus VINCENT C. MCCUE EXEMPLIFIED RECORD From Cumberland County Debt, $ Int. from Costs Entered and Filed Prothonotary. Among the Records and Proceedings enrolled in the court of Common Pleas in and for the Cumberland county c .2149 in the Commonwealth of Pennsylvania 2 1190 MDA 2011 to No. Term, 19 is contained the following: COPY OF Appearance DOCKET ENTRY ELIZABETH A. WIAN vs. VINCENT C. MCCUE **SEE CERTIFIED COPY OF DOCKET ENTERIES** .t iI'D :) 1.L I_UltlUCt1d111.i I.VU.111.y t'1 V1.11viiv ?.aiy a Civil Case Print + uy - ?- 2004-02149 WIAN ELIZABETH A (vs) MCCUE VINCENT C Reference No... Filed......... 5/14/2004 Case Type ..... : COMPLAINT - EQUITY Judgment......: .00 Time.........: Execution Date 11:43 0/00/0000 Judge Assigned: HESS KEVIN A Jury Trial... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: 1390MD 2011 Higher Crt 2.: ******************************************************************************** General Index Attorney Info WIAN ELIZABETH A PLAINTIFF O'BRIEN ROBERT L 36 GREENFIELD DRIVE CARLISLE PA 17013 MCCUE VINCENT C DEFENDANT ROBINSON JAMES M 460 ST JOHN DRIVE CAMP HILL PA 17011 ******************************************************************************** * Date Entries ******************************************************************************** FIRST ENTRY - - - - - - - ?- G 5/14/2004 COMPLAINT - EQUITY - BY ROBERT L O'BRIEN ATTY FOR PLFF ------------------------------------------------------------------- 7 5/19/2004 SHERIFF'S FILE RETURNED FILED. Case Type: COMPLAINT - EQUITY Ret Type.: Regular Litigant.: MCCUE VINCENT C Address..: 460 ST JOHN DRIVE Ctyy/St/Z CAMP HILL, PA 17011 Hnd To: MARVIN WAYNE, ROOMMATE Shf/D ty.: VALERIE WEARY Date/ Time: 05/18/2004 2025:00 Costs....: $36.97 Pd By: OBRIEN BARIC SCHERER 05 19/2004 Addl Info Sent: NOTICE OF PENDENCY OF PARTITION PROCEEDINGS ------------------------------------------------------------------- 8- q 6/09/2004 SUGGESTION OF BANKRUPTCY - BY STEVEN P MINER ESQ ------------------------------------------------------------------- 11.fg9/O1/2005 PETITIONPFOR DETERMINATION OF FACTUAL ISSUES - BY ROBERT L O'BRIEN ESQ FOR ------------------------------------------------------------------- IC) 9/16/2005 ORDER DATED - 09/16/05 - UPON REVIEW OF THE ATTACHED PETITION FOR FACTUAL DETERMINATION A HEARING IS SCHEDULED IN CUMBERLAND COUNTY IN COURT ROOM #4 ON 10/24/05 @3:30PM. PENDING THE HEARING DEFENDANT IS ORDERED TO CO-OPERATE IN HAVING THE REAL ESTATE APPRAISED. BY THE COURT KEVIN A HESS PJ - COPIES MAILED 09/16/05 ------------------------------------------------------------------- f? 10/26/2005 ORDER OF COURT - DATED 10/24/05 - IT IS ORDERED AND DIRECTED THAT THE DEFT COOPERATE IN THE APPRAISAL OF THE REAL ESTATE AT THE EXPENSE OF THE PLFF - BY THE COURT KEVIN A HESS J COPIES MAILED ------------------------------------------------------------------- 13-lg2/06/2006 PETITION TO SET A HEARING BY ROBERT L O'BRIEN ESQ FOR PLFF ------------------------------------------------------------------- f2 2/06/2006 ORDER - DATED 2/6/06 - UPON REVIEW OF THE ATTACHED PETITION TO SET A HEARING - A HEARING IS SCHEDULED IN CUMBERLAND COUNTY COURTHOUSE IN CR 4 ON 3/15/06 AT 9:30 AM - BY THE COURT KEVIN A HESS J COPIES MAILED ------------------------------------------------------------------- tS 5/30/2006 ORDER - DATED 05-30-06 - IN RE: DIVORCE-EQUITY - BY KEVIN A HESS J - COPIES MAILED 05-30-06 ------------------------------------------------------------------- /7-0 11/30/2009 PETITION FOR SALE OF JOINTLY OWNED PROPERTY AND TO ESTABLISH EACH PARTIES INTEREST IN THE PROPERTY - BY ROBERT L O'BRIEN ATTY FOR PLFF ------------------------------------------------------------------- 16 12/02/2009 ORDER - 12/2/09 IN RE: PETITION FOR SALE OF JOINTLY OWNED PROPERTY AND TO ESTABLISH EACH PARTYS INTEREST IN THE PROPERTY - A RULE IS ISSUED ON THE DEFT TO SHOW CAUSE WHY THE RELIEF REQUESTED IN THE WITHIN PETITION OUGHT NOT TO BE GRANTED - THIS RULE RETURNABLE 30 DAYS AFTER SERVICE - BY KEVIN A HESS J - COPIES MAILED 12/2/09 ------------------------------------------------------=------------ .5-$912/23/2009 DEFENDANT'S RESPONSE TO PLFFS PETITION FOR SALE OF JOINTLY OWNED PROPERTY AND TO ESTABLISH EACH PARTIES INTEREST IN THE PROPERTY - ?umper_lana your--y rrosnon.ocary,s „==ice edye Civil Case Print 2004-02149 WIAN ELIZABETH A (vs) MCCUE VINCENT C Reference No... Filed......... 5/14/2004 Case Ty e.....: COMPLAINT - EQUITY Time.........: 11:43 Judgment..... .00 Execution Date 0/00/0000 Judge Assigned: HESS KEVIN A Jury Trial.... Disposed Desc.: Diss osed Date. 0/00/0000 ------------ Case Comments ------- Hi hher Crt 1.: 1390MDA2011 BY DEFT Higher Crt 2.: ------------------------------------------------------------------- 30-31 1/07/2010 ORDER - 1/6/10 IN RE: PETITION FOR SALE OF JOINTLY OWNED PROPERTY AND TO ESTABLISH EACH PARTYS INTEREST IN THE PROPERTY - ARGUMENT IS SET FOR 2/25/10 AT 2:30 PM IN CR4 CUMBERLAND COUNTY COURTHOUSE - BY KEVIN A HESS J - COPIES MAILED 1/7/10 ------------------------------------------------------------------- 33-3 92/22/2010 MOTION FOR CONTINUANCE - BY HERBERT CORKY GOLDSTEIN ATTY FOR DEFT ------------------------------------------------------------------- 2/22/2010 RESPONSE TO MOTION FOR CONTINUANCE - BY ROBERT L O'BRIEN ATTY FOR PLFF ------------------------------------------------------------------- 140-V23/03/2010 ORDER - 3/2/10 IN RE: PETITION FOR SALE OF JOINTLY OWNED PROPERTY AND TO ESTABLISH EACH PARTYS INTEREST IN THE PROPERTY - ARGUMENT SCHEDULED IN THIS MATTER FOR 2/25/10 IS CONTINUED UNTIL 3/25/10 AT 3:30 PM IN CR4 CUMBERLAND COUNTY COURTHOUSE - BY KEVIN A HESS PJ - COPIES MAILED 3/3/10 ------------------------------------------------------------------- 3 3/26/2010 SORDER - CHEUDLED/FOR15/14/10 ATRD10:30IAMCINNCR4ACUMBERLANDHCOUNTY IS COURTHOUSE - BY KEVIN A HESS PJ- COPIES MAILED 3/26/10 ------------------------------------------------------------------- y 3 5/17/2010 ORDER - 5/17/10 IN RE: PETITION FOR PARTITION - PETITION IS GRANTED - A PRELIMINARY CONFERENCE IS SCHEDULED FOR 619110 AT 2:15 PM - BY KEVIN A HESS PJ - COPIES MAILED 5/17/10 ------------------------------------------------------------------- 46--516/03/2010 MOTION TO WITHDRAW - BY HERBERT CORKY GOLDSTEIN ATTY FOR DEFT ------------------------------------------------------------------- 6/07/2010 ORDER - 6/4/10 IN RE: MOTION TO WITHDRAW - A RULE IS ISSUED ON ALL PARTIES TO SHOW CAUSE WHY THE RELIEF REQUESTED IN THE WITHIN MOTION OUGHT NOT BE GRANTED - THIS RULE IS RETURNABLE 20 DAYS AFTER SERVICE - SERVICE OF THIS RULE ON THE DEFT SHALL BE MADE BY BOTH REGULAR AND CERTIFIED MAIL - CONFERENCE WITH COUNSEL SET FOR 6/9/10 IS CONTINUED PENDING THE OUTCOME OF THIS MOTION TO WITHDRAW - IN THE EVENT THAT MR GOLDSTEIN IS PERMITTED TO WITHDRAW THE DEFT SHALL BE GIVEN 30 DAYS WITHIN WHICH TO RETAIN COUNSEL OR FILE WITH THE COURT A STATEMENT TO THE EFFECT THAT HE WISHES TO PROCEED PRO SE - IF HE DOES NEITHER THIS MATTER SHALL PROCEED WITHOUT THE BENEFIT OF A PRELIMINARY CONFERENCE IN ACCORDANCE WITH PA RCP 1558 - BY KEVIN A HESS PJ - COPIES MAILED 6/7/10 ------------------------------------------------------------------- $a-`J-36/28/2010 AFFIDAVIT OF SERVICE - COURT ORDER UPON DEFT - BY HERBERT CORKY GOLDSTEIN ATTY FOR DEFT ------------------------------------------------------------------- S-b-6Q9/27/2010 PETITION FOR RULE TO SHOW CAUSE REQUEST FOR EXCLUSIVE POSSESSION SALE OF JOINTLY OWNED PROPERTY AND TO ESTABLISH EACH PARTIES INTEREST IN THE PROPERTY - BY ROBERT L O'BRIEN ATTY FOR PLFF ------------------------------------------------------------------- 5'/-510/20/2010 ORDER DATED 10-20-10 IN RE PETITION FOR RULE TO SHOW CAUSE REQUEST FOR EXCLUSIVE POSSESSION SALE OF JOINTLY OWNED PROPERTY AND TO ESTABLISH EACH PARTY'S INTEREST IN THE PROPERTY - HEARING IS SCHEDULED FOR DECEMBER 30 2010 AT 1 30 PM IN CR 4 - PLAINTIFF IS DIRECTED TO MAKE SERVICE VIA MAIL AND PERSONAL SERVICE OF THE HAND OF THE SHERIFF - BY THE COURT KEVIN A HESS PJ - COPIES MAILED 10-20-10 ------------------------------------------------------------------- 60-9 10/26/2010 PETITION TO SET A HEARING FOR SALE - BY ROBERT L O'BRIEN ATTY FOR PLFF q ------------------------------------------------------------------- ('I 11/23/2010 CERTIFICATE OF SERVICE - ORDER DATED 10/20/10 ENTERS ON THE PETITION FILED BY PLFF UPON DEFT - BY ROBERT L O'BRIEN ATTY FOR PLFF -------------------------------------------- 7Q 12/21/2010 SHERIFF'S RETURN - 12/08/10 - SERVED IN RE: PETITION FOR RULE TO SHOW CAUSE REQUEST FOR EXCLUSION PROSSESSION SALE OF JOINTLY OWNED PROPERTY AND TO ESTABLISH EACH PARTYS INTEREST IN THE PROPERTY BY VINCENT C MCCUE AT 460 ST JOHNS DRIVE CAMP HILL PA 17011 SHERIFF'S COSTS: $55.00 ,:umnerlana youn.ty rrotno otary,s ,_?-ce rage Civil Case Print 2004-02149 WIAN ELIZABETH A (vs) MCCUE VINCENT C Reference No... Filed......... 5/14/2004 Case Type ..... : COMPLAINT - EQUITY Time...... . 11:43 Judgment......: .00 Execution Date 0/00/0000 Judge Assigned: HESS KEVIN A Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: 1390MDA2011 Higher Crt 2.: ------------------------------------------------------------------- 11-73 2/01/2011 MEVI?DUMM AND INTERIM ORDDEERL-1//1/111 - 1 IN RE: PARTITION - BY ------------------------------------------------------------------- 7s-j8 2/08/2011 PETITION FOR CLARIFICATION OF RULING SETTING THE PARTIES' INTEREST IN THE PROPERTY AND FOR SCHEDULING SALE OF THE REAL ESTATE - BY ROBERT L O'BRIEN ATTY FOR PLFF ------------------------------------------------------------------- -74 2/18/2011 ORDER - 2/17/11 IN RE: PETITION FOR CLARIFICATION OF RULING SETTING THE PARTIES INTEREST IN THE PROPERTY AND FOR SCHEDULING SALE OF THE REAL ESTATE - HEARING IS SCHEDULED FOR 3/17/11 AT 10:30 AM IN CR4 CUMBERLAND COUNTY COURTHOUSE - BY KEVIN A HESS PJ COPIES MAILED 2/18/11 ------------------------------------------------------------------- g0 8,3/16/2011 PETITION FOR EXCLUSIVE POSSESSION - BY ROBERT L O'BRIEN ATTY FOR PLFF p ------------------------------------------------------------------- 03 3/16/2011 FORE3/17/115//IS1CO- THE NTINUEDATON4/12/11EATBO10:00AAMIINEDR4ACUMBERLAND COUNTY COURTHOUSE - BY KEVIN A HESS PJ - COPIES MAILED 3/16/11 - - - - - ------------------------------------------------------------ 3/23/2011 PRAECIP- - E TO ENTER APPEARANCE FOR DEFT - BY JAMES M ROBINSON ESQ ------------------------------------------------------------------- 3/23/2011 ORDER - 3/23/11 IN RE: PETITION FOR EXCLUSIVE POSSESSION - SAME IS DENIED - BY THE COURT KEVIN A HESS PJ - COPIES MAILED 3/23/11 ------------------------------------------------------------------- gSS1034/06/2011 PETITION TO INTERVENE - BY JEFFREY FEDDER DEF ------------------------------------------------------------------- /0l 4/19/2011 ORDER - 4/19/11 - THE PETITION OF JEFFREY FEDDER PRO SE TO INTERVENE IS GRANTED - A FINAL HEARING WITH REGARD TO THE INTEREST OF THE PARTIES IN THE PROPERTY LOCATED AT 460 ST JOHNS DRIVE CAMP HILL IS SET FOR 6/15/11 AT 10:00 AM IN CR4 CUMBERLAND COUNTY COURTHOUSE - THE PARTIES UNABLE TO ATTEND THE HEARING ON 6/15/11 WILL BE AUTHORIZED TO PARTICIPATE BY TELEPHONE UNLESS AN OBJECTION TO THAT FORM OF PARTICIPATION IS FILED WITHIN 10 DAYS OF THIS ORDER - BY THE COURT KEVIN A HESS PJ - COPIES MAILED 4/19/11 ------------------------------------------------------------------- 1Or'//.36/01/2011 PLAINTIFF'S RESPONSE TO PETITION TO INTERVENE - BY ROBERT L O'BRIEN ATTY FOR PLFF -------------------------------------------------------------------- 6/01/2011 CERTIFICATE OF SERVICE - RESPONSE TO PETITION TO INTERVENE REPLY TO NEW MATTER WITH SUPPORTING BRIEF COUNTERCLAIM UPON DEFT - BY ROBERT L O'BRIEN ATTY FOR PLFF --------------------------------------------- 6/09/2011 MOTION FOR CONTINUANCE - BY P RICHARD WAGNER ATTY FOR INTERVENER ------------------------------------------------------------------- f($'6/14/2011 ORDER EPETITION OF SCHEDULED FOR JUNE 15 2011 IS CONTINUED TO JUNE 20 2011 AT 2 PM IN CR 4 - BY THE COURT KEVIN A HESS PJ - COPIES MAILED 6-14-11 ------------------------------------------------- ------------------ 121`17,56/28/2011 TRANSCRIPT OF PROCEEDINGS -HELD BEFORE JUDGE HESS ON JUNE 20 2011 ------------------------------------------------------------------- ?6-17 7/11/2011 DATED ORDER R FOLLOWING T HEARING F DIRECTEDTO VACATED THE RESIDENCE NO LATER THAN 445DAYS N FROM THE DATE OF THIS ORDER - BY THE COURT KEVIN A HESS PJ - COPIES MAILED 7-11-11 ------------------------------------------------------------------- I74(p78/08/2011 NOTICE OF APPEAL TO SUPERIOR COURT - BY BRADLEY L GRIFFIE ATTY FOR DEFT ------------------------------------------------------------------- ISQ-/918/08/2011 PETITIOONAREQQUESTING TRANSCRIPTION OF PROCEEDINGS - BY BRADLEY L ------------------------------------------------------------------- 18p 4 8/10/2011 ORDER OF COURT - 8/10/11 - IN RE: PETITION REQUESTING TRANSCRIPTION OF PROCEEDINGS - PETITION IS HEREBY ORDERED AND DIRECTED THAT THE COURT STENOGRAPHER SHALL TRANSCRIBE THE NOTES OF TESTIMONY FROM THE LAST HEARING HELD IN THIS MATTER ON 6/20/11 - BY THE COURT KEVIN A HESS PJ - COPIES MAILED 8/10/11 rs _- ?_umjDeriana _:ounzy rrozrnonozary, s urrice rage 4 Civil Case Print 2004-02149 WIAN ELIZABETH A (vs) MCCUE VINCENT C Reference No... Filed......... 5/14/2004 Case Type ..... : COMPLAINT - EQUITY Time........ 11:43 Judgment..... .00 Execution Date 0/00/0000 Judge Assigned: HESS KEVIN A Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: 1390MDA2011 Higher Crt 2.: ------------------------------------------------------------------- 09, 8/10/2011 ORDER - 8/10/11 - IN RE: APPEAL OF DEFT - THE APPELLANT IS DIRECTED TO FILE OF RECORD-WITHIN 21 DAYS HEREOV-AND SERVE UPON THE UNDERSIGNED A CONCISE STATEMENT OF THE MATTERS COMPLAINT OF ON THE APPEAL - BY THE COURT KEVIN A HESS PJ - COPIES MAILED 8/11/11 ------------------------------------------------------------------- /q3-19,C8/15/2011 SUPERIOR COURT OF PA NOTICE OF APPEAL DOCKETING TO # 1390 MDA 2011 ------------------------------------------------------------------- j,r6_1gg8/31/2011 CONCISE STATEMENT OF MATTERS COMPLAINED OF ON APPEAL BY VINCENT C MCCUE - BY BRADLEY L GRIFFIE ATTY FOR DEF ------------------------------------------------------------------- .IZ..p39/02/2011 PETITION FOR STAY - BY BRADLEY L GRIFFIE ATTY FOR DEF ------------------------------------------------------------------- OW,20e9/02/2011 PETITION REQUESTING TRANSCRIPTION OF NOTES OF TESTIMONY - BY BRADLEY L GRIFFIE ATTY FOR DEF ------------------------------------------------------------------- a0y 9/07/2011 ORDER OF COURT - 9/6/11 - IN RE: PETITION REQUESTING TRANSCRIPTION OF NOTES OF TESTIMONY - HEREBY ORDERED AND DIRECTED THAT THE COURT STENOGRAPHER SHALL TRANSCRIBE THE NOTES OF TESTIMONY FROM THE HEARINGS HELD IN THIS MATTER ON THE FOLLOWING DATES: A -5/18/06 WHICH RESULTED IN AN ORDER DATED 5/30/06 B -5/14/10 WHICH RESULTED IN THE ORDER DATED 5/17/10 C -12/30/10 WHICH RESULTED IN THE ORDER OF 1/31/11 THE TRANSCRIPTION OF THE NOTES OF TESTIMONY SHALL BE BORNE BY THE ABOVE-NAMED DEFT VINCENT C MCCUE - BY THE COURT KEVIN A HESS PJ COPIES MAILED 9/7/11 ------------------------------------------------------------------- a(p-,2?s9/14/2011 PETITION REQUESTING THE COURT'S DETERMINATION ON A SUPERSEDEAS PENDING FINAL DISPOSITION ON APPEAL - BY ROBERT L O'BRIEN ATTY FOR PLFF ------------------------------------------------------------------- ?(}q 9/22/2011 ORDER - //DETTERMINATIONION AISUPERSEDEASIPENDING EFINAL DISPOSITION ON APPEAL - IS DENIED - RULE ISSUED ON THE DEFT TO SHOW CAUSE WHY THE PURPORTED AGREEMENT OF THE PARTIES OUTGHT NOT TO BE RATIFIED AND AFFIRMED - THIS RULE RETRUNABLE 20 DAYS AFTER SVC - BY THE COURT KEVIN A HESS PJ - COPIES MAILED 9/23/11 ------------------------------------------------------------------- 216.2379/22/2011 TRANSCRIPT OF PROCEEDINGS - 5/14/10 - BEFORE KEVIN A HESS PJ ------------------------------------------------------------------- W-,Zg9/22/2011 TRANSCRIPT OF PROCEEDINGS - 5/18/06 - BEFORE KEVIN A HESS PJ -------------------------------------------------------------------- ,169/22/2011 TRANSCRIPT OF PROCEEDINGS - 12/30/10 - BEFORE KEVIN A HESS PJ ------------------------------------------------------------------- .2q7-9/22/2011 TRANSCRIPT OF PROCEEDINGS - 4/12/11 - BEFORE KEVIN A HESS PJ ------------------------------------------------------------------- 10/06/2011 NOTICE OF DOCKET ENTRIES MAILED TO ROBERT L Of BRIEN ESQ AND JAMES M ROBINSON ESQ 10/6/11 3(0 _ - - - LAST ENTRY - - - - - - - - - - - - - - * Escrow Information * Fees & Debits Beg Bal Pmts/Ad End Bal ******************************** ******** ****** ******************************* COMPLAINT 35.00 35.00 .00 TAX ON CMPLT .50 .50 .00 SETTLEMENT 5.00 5.00 .00 AUTOMATION 5.00 5.00 .00 JCP FEE 10.00 10.00 .00 APPEAL HIGH CT 48.00 48.00 .00 ------------------------ ------------ 103.50 103.50 .00 * End of Case Information TRUE COPY FROM RECORD M Tesomw W wiw ed.1 h*K,unto sot mkt hnW and do AT of sakf aC 101K ft This i ii d?!?a=_ -z0V, 5T?77 P""Immy CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) Superior Court of PA To the Prothonotary of the Apellate Court to which the within matter has been appealed: Superior Court of Pennsylvania The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: ELIZABETH A. WIAN Vs. Received in Superior Court . VINCENT C. MCCUE OCT 0 5 2011 2004-2149 MIDDLE 1390 MDA 2011 The documents comprising the record have been numbered from No. 1 to 310, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 10/6/2011. av' D uell, Pr honotary Alma Kostjerevac, Deputy An additional cony of this certificate is enclosed. Please sign and date cony, thereby acknowledging receipt of this record. Date Signature & Title ELIZABETH A. WIAN, Plaintiff/Petitioner V. VINCENT C. McCUE, Defendant/Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYF ANjA NO. 2004 - 2149 CIVIL TERM ter' ' ? CIVIL ACTION - IN EQUITY' rv JUDGE: KEVIN A. HESS . AMENDED CERTIFICATE OF SERVICE , c? -r, I hereby certify that I have on the 19th day of October, 2011, served the Respondent's Answer to Petition Requesting the Court's Determination on a Supercedeas Pending Final Disposition on Appeal, to the following interested parties by personal service at the Cumberland County Courthouse, 1 Courthouse Square, Carlisle, Pennsylvania, at or about 3:00 p.m. Robert L. O'Brien, Esq. 19 West South Street Carlisle, PA 17013 Attorney for Plaintiff/Petitioner The Honorable Kevin A. Hess Judge's Chambers, 4th Floor Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 DATE: d o G ' e, Esquire ttorne r Defendant/Respondent GRIFFIE & ASSOCIATES 200 North Hanover Street Carlisle, PA 17013 (717)243-5551 ELIZABETH A. WIAN, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSY;~VAP. l NIA .5 ~ v. : NO. 2004- 2149 CIVIL TERM ~ . VINCENT C. McCUE, : CIVIL ACTION - IN EQUITY OD't Defendant . RESPONSE TO NEW MATTER RAISED IN REQUEST FOR SUPERSEDEAS 1. Robert L. O'Brien, Esquire, counsel for the Plaintiff responds to the New Matter raised in the Answer filed October 19, 2011, as follows. 2. The Defendant has admitted that the attorneys for the respective parties met and discussed a resolution. The resolution was reduced to writing and the Defendant has refused to execute the proposal. The Defendant has also admitted that the Court has the authority under the Rules of Procedure to enter an appropriate Order. ~ 3. Defendant has filed an appeal from the Court Order of July 11, 2011. The Defendant is under an Obligation, a Court Order, to convey the certain tract of land located in Hampden Township that is known and numbered as 460 St. John Drive, Camp Hill, PA, to the Petitioner, immediately, and to remove all his personal property on or before September 30, 2011. 4. Defendant has abandoned the St. Johns Road property. The Township has sent notices to the parties about the condition of the property. A copy is attached and the Township has received a forwarding address of Brewster, Mass. For the Defendant. The Defendant has also been reported as being in Delaware. In either event, he is not in the home. 5. The Plaintiff relies on the Court Order that gives her ownership of the home, free and clear of any claim of the Defendant. As an accommodation to obtain the entry of an appropriate Supersedeas Order she was willing to consent to hold half the proceeds of the property pending the appeal. She withdraws that proposal and requests full compliance with the Court Order of July 11, 2011. 6. Plaintiff requests that the Court issue the attached Decree awarding Real Estate due to the Defendant's refusal to comply with the Court Order of July 11, 2011. 7. Plaintiff requests that she shall have the absolute right to convey the property during the course of the appeal for any reasonable sum that she deems, in her sole discretion, as appropriate. ~ 8. If Defendant is in any way successful with his appeal, and Plaintiff contends I that this is highly unlikely, Defendant can pursue his rights as Plaintiff has had to for the past almost eight years and sincerely hope the Plaintiff to be more reasonable in her responses. WHEREFORE, Petitioner respectfully requests that this honorable Court: A. Issue the Decree Awarding Real Estate; and B. Grant such other relief as is just and reasonable. Respectfully submitted, Robert L. O'Brien By: Robert L. O'Brien, Esquire Attorney for Plaintiff I. D. # 28351 19 West South Street Carlisle, Pennsylvania 17013 CERTIFICATE OF SERVICE I hereby certify that on October 28, 2011, I, Robert L. O'Brien, Esquire, did serve a copy of the Response To New Matter and Decree Awarding Real Estate, by first class U.S. mail, postage prepaid, to the party listed below, as follows: Bradley L. Griffie, Esquire 200 North Hanover Street Carlisle, PA 17013 P. Richard Wagner, Esquire 2233 North Front Street Harrisburg, PA 17110 , Robert L. O'Brien, Esquire ELIZABETH A. WIAN, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION -LAW VINCENT C. MCCUE, NO. 04-2149 Defendant INEQUITY Prior Judge: KEVIN A. HESS ORDER OF COURT AND RULE TO SHOW CAUSE AND NOW this /S' day of , 2012, upon presentation and consideration of the within Petition, it is hereby ORDERED and DECREED that: 1. A Rule is hereby issued upon the Defendant/Respondent, Vincent C. McCue, to show cause, if any he has, as to why Petitioner, Bradley L. Griffie, Esquire, is not entitled to the relief requested; 2. Defendant/Respondent shall file an Answer to Petition within twenty (20) days of service upon the Defendant/Respondent; 3. The Petition shall be decided under Pa.R.C.P. No. 206.7; 4. Depositions shall be completed within days of the service upon Plaintiff/Petitioner of the answer to the petition; 5. Hearing/Argument shall be held on . the day of , 2012, at _.m. in Courtroom 4 of the Cumberland County Courthouse, Carlisle, Pennsylvania; 6. If Items 4 and 5 above are left blank deposition and/or argument will be considered upon the request of any party; 7. Notice of entry of this Order shall be provided to all parties by Petitioner. Cc: obert L. O'Brien, Esquire Attorney for Plaintiff Vincent C. McCue, Defendant Bradley L. Griffie, Esquire Attorney for Defendant J. 2 1 G? 4 r. r U1 Karen Reid Bramblett, Esq. Prothonotary Mary A. Graybill, Esq. Deputy Prothonotary Pennsylvania Judicial Center P.O. Box 62435 601 Commonwealth Avenue, Suite 1600 Harrisburg, PA 17106-2435 (717) 772-1294 www.superior.court.state.pa.us CERTIFICATE OF REMITTAUREMAND OF RECORD TO: David D. Buell r- Prothonotary =t= __ RE: Wian, E. v. Mccue, V. ?- 1390 M DA 2011 - Trial Court: Cumberland County Court of Common Pleas Trial Court Docket No: 04-2149 - - Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Original Record contents: Item Filed Date Description Part October 6, 2011 1 Remand/Remittal Date: JUL 2 0 2012 ORIGINAL RECIPIENT ONLY - Please acknowledge receipt by signing, dating, and returning the enclosed copy of this certificate to our office. Copy recipients (noted below) need not acknowledge receipt. Respectfully, Mary A. Graybill, Esq. Deputy Prothonotary /alv Enclosure cc: Bradley Leroy Griffie, Esq. The Honorable Kevin A. Hess, President Judge Robert L. O'Brien, Esq. Wian, E. v. Mccue, V. 1390 M DA 2011 Letter to: Buell, David D. Acknowledgement of Certificate of RemittaVRemand of Record (to be returned): Signature Date Printed Name J-S19008-12 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 ELIZABETH A. WIAN, V. Appellee IN THE SUPERIOR COURT OF PENNSYLVANIA CD . VINCENT C. MCCUE, i CTt:r, rg?, Appellant No. 1390 MD i ice, Appeal from the Order Entered July 11, 2011 In the Court of Common Pleas of Cumberland County , Civil Division at No(s): 04-2149 BEFORE: STEVENS, P.J., LAZARUS, J. and WECHT, J. MEMORANDUM BY STEVENS, P.J. FILED MAY 11, 2012 This is an appeal in a partition action concerning the real estate purchased by Vincent C. McCue (Appellant) and Elizabeth A. Wian (Appellee) during the course of their marriage. After Court of Common Pleas of Cumberland County granted Appellee's request for equitable partition pursuant to Pennsylvania Rules of Civil Procedure 1551-1574, the trial court determined Appellee's interest in the property exceeds its fair market value and directed Appellant to vacate the property and deliver the deed to Appellee. Appellant claims the trial court should have resolved this matter using equitable distribution principles. We affirm. After Appellant and Appellee married in 1953, they purchased a home together in Camp Hill, Pennsylvania in 1960 and satisfied their mortgage obligations. Upon the couple's separation in 1981, Appellee moved out of J-S19008-12 the marital home. The parties never reconciled and divorced seventeen years later in May 1998. Appellant has continued to live in the marital home and has had exclusive possession of the property since their separation. As the divorce was bifurcated, the parties were scheduled to meet with a Master to divide their property after the decree of divorce was entered. Appellant admittedly failed to attend the Master's hearings and made no further attempts to resolve this matter. On May 14, 2004, Appellee filed a partition action in equity' in the Court of Common Pleas of Cumberland County seeking the forced sale of the former marital residence. Appellee also sought one-half of the reasonable rental value of the home for the period Appellant had exclusive possession. Instead of filing a responsive pleading, Appellant filed a Chapter 13 bankruptcy petition on June 4, 2004. Appellant revealed there was a lien on the home as a result of a judgment entered against Appellant in 1995 for $35,000 in 1995, then worth $64,058.78 with accumulated interest. The bankruptcy court granted Appellee relief from the automatic stay to determine the liquidated value of her interest in the former marital residence so that Appellant could provide adequate protection of her interest. Once the matter was remanded to state court, the Court of 1 We note that Appellee did not seek statutory relief under 23 Pa.C.S.A. 3507, which provides another avenue for the partition of property previously held by married persons in a tenancy by the entireties. - 2 - J-S19008-12 Common Pleas of Cumberland County determined the fair market value of the home to apprise the Bankruptcy Court of the parties' respective interests in the property. Appellant's bankruptcy was subsequently discharged and all liens on the property were removed. Appellee attempted to schedule a settlement conference before the Divorce Master to discuss outstanding economic issues, however, Appellant again failed to attend the hearing or file any claims for relief. As a result, the Divorce Court entered an order finding Appellant failed to raise any economic claims, vacated the Master's appointment, and specifically noted that Appellee would proceed with the partition action. Appellant did not appeal this decision. Subsequently, on November 30, 2009, Appellee filed a Petition for Sale of the marital property pursuant to Pennsylvania Rule of Civil Procedure 1567. In his pro se response to the petition, Appellant asserted that Appellee's interest in the property had "diminished" over the years as Appellant had paid for the property's taxes, maintenance, and improvements.2 Appellant also claimed selling the home would be a "detriment to his living situation" and argued that he should not be removed from the house at the age of 83 after surviving cancer and a stroke. z Appellant also asserted that the parties agreed that he would have a life estate in the property, a contention which Appellee vigorously denied. Appellant never presented any evidence to support this claim. - 3 - J-S 19008-12 On May 17, 2010, the trial court entered an order granting Appellee's petition for partition and scheduling a preliminary conference to determine a plan of partition or sale and reevaluate the value of the real estate and the parties' respective interests. Appellee asked that the property be sold in a private sale confined to the parties. After the trial court held several hearings to determine the parties' interests in the marital property, the trial court valued the marital property at $185,000.00. Upon determining that the home's rental value was $1,000.00 per month, the trial court found that Appellant owed Appellee half the rental value benefit, which was $6,000.00 each year. The trial court also found that Appellee could be charged with one-half the property taxes ($1,187.50) and one-half of the maintenance costs ($925.00), for a total of $2,112.50 each year. As a result, the trial court found an annual debt in Appellee's favor of $3,887.50, which amounts to over $116,000 over thirty years. When the trial court added this debt to Appellee's one-half share of the real estate ($92,500.00), it concluded that Appellee's interest in the marital home exceeds its value by more than $15,000.00. Accordingly, on July 11, 2011, the trial court entered an order directing Appellant to vacate the marital property and to convey the premises by deed to Appellee. This timely appeal followed. Appellant raises the following issues for our review on appeal: 1. Did the Trial Court abuse its discretion and commit an error of law in refusing to allow Appellant McCue to advance his claim for equitable distribution of the marital assets of the parties, -4- J-S19008-12 and more particularly, the real estate at issue in the partition action[?) 2. Did the Trial Court abuse its discretion and commit an error of law by distributing the real estate at issue and making other financial determinations pursuant to a partition analysis rather than an equitable distribution analysis? Appellant's Brief, at 5. Before we reach the merits of Appellant's claim, we must determine whether he properly raised these issues before the trial court. The trial court noted in this case that the Divorce Court had specifically found that Appellant failed to raise any economic claims in the divorce proceeding as he repeatedly failed to attend the settlement conferences scheduled to resolve these matters. As a result, the Divorce Court entered an order vacating the appointment of a matter and noted that Appellee intended to proceed with a partition action. Appellant did not appeal this termination of divorce proceedings. Further, we note that Appellant never challenged the filing of the partition action and never claimed he was entitled to have the property divided according to equitable distribution principles. Appellant never filed an answer to Appellee's complaint commencing the partition action pursuant to Pennsylvania Rules of Civil Procedure 1551-1574. Our rules of Civil Procedure provide that " [a]verments in a pleading to which a responsive pleading is required are admitted when not denied specifically or by necessary implication." Pa.R.C.P. 1029(b). -5- J-S19008-12 Moreover, Appellant never asked the trial court to utilize an equitable distribution analysis throughout the partition action and raises this issue for the first time on appeal. In his response to Appellee's Petition for Sale pursuant to Pennsylvania Rule of Civil Procedure 1567, Appellant claimed that Appellee should not be allowed to proceed with the partition action or sell the house because Appellant is an elderly man who has experienced health problems in the past, even though both Appellant and Appellee are now over 80 years old. The trial court raised the issue sua sponte to determine whether it had jurisdiction to proceed with the partition action and found Appellant had not properly pled or preserved the issue of equitable distribution action. Order, 5/17/11, at 1. As Appellant failed to challenge the propriety of the partition action below, this issue is waived. "Issues not raised in the lower court are waived and cannot be raised for the first time on appeal." Pa.R.A.P. 302(a). Accordingly, we cannot find that the trial court erred in finding that Appellant's failure to preserve his equitable distribution claim allowed Appellee to proceed with her partition action. Order affirmed. Judgment Entered. ?/?? a =.?",gs -9 Interim eputy Proth notary mate: 5/11/2012 -6- ELIZABETH A. WIAN, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW VINCENT C. McCUE, NO. 04-2149 CIVIL TERM rn Defendant IN EQUITY Z zrri Prior Judge: KEVIN A. HESS te - ? r ?=• ? cc PETITION TO MAKE RULE ABSOLUTE 1b; r, Im. AND NOW, comes Petitioner, Bradley L. Griffie, Esquire and the law 35:'rn1;f ,:- Griffie & Associates and petitions the Court as follows: 1. Your Petitioner is counsel of record for the above named Defendant, Vincent C. McCue. 2. A Petition to Withdraw as Counsel was filed by Petitioner on June 12, 2012, resulting in the entry of an Order of Court and Rule to Show Cause on June 15, 2012. 3. The aforesaid Order of Court and Rule to Show Cause directed Defendant/Respondent, Vincent C. McCue, twenty (20) days after service to file an Answer to the Petition to Withdraw as Counsel. 4. The aforesaid Petition and Order of Court and Rule to Show Cause was served by regular mail upon Respondent at his last known address by correspondence dated June 21, 2012. 5. More than twenty-even (27) days have passed since the mailing of the Order of Court and Rule to Show Cause and no response has been filed. WHEREFORE, Petitioner requests your Honorable Court to make the Rule absolute by entering an Order authorizing your Petition to withdraw as counsel for Defendant in the above captioned matter. Respectfully submitted, Esquire Court ID No. 34349 200 North Hanover Street Carlisle, PA 17013 (717) 243-5551 (800) 347-5552 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 unworn falsification to authorities. DATE: ELIZABETH A. WIAN. IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. : CIVIL ACTION -LAW VINCENT C. McCUE, NO. 04-2149 CIVIL TERM Defendant INEQUITY Prior Judge: KEVIN A. HESS CERTIFICATE OF SERVICE I, Bradley L. Griffie, Esquire hereby certify that I did, the ?3 day of July, 2012, cause a copy of the within Petition to Make Rule Absolute to be served upon the Defendant/Respondent, Vincent C. McCue, by serving him by first class mail, postage prepaid, at the following address: Vincent C. McCue c/o Jacqueline Randolph 146 Blackbird Forest Road Townsend, DE 19734 DATE: '7 1 a- a ELIZABETH'A. WIAN, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION -LAW VINCENT C. McCUE, NO. 04-2149 CIVIL TERM Defendant IN EQUITY Prior Judge: KEVIN A. HESS ORDER OF COURT AND NOW, this 2 7'=- day of , 2012, upon presentation and consideration of the within Petition to Make Rule Absolute, IT IS HEREBY ORDERED AND DIRECTED that Petitioner, Bradley L. Griffie, Esquire, is permitted to withdraw as counsel for the above named Defendant, Vincent C. McCue. BY THE COURT, J. C_, M1V P-M ? Bradley L. Griffie, Esquire r<..A-+? Petitioner ? Vincent C. McCue' Respondent j7, C: - ?? Lop; e s &ad ed 7/a ql ?'i?i ELIZABETH A. WIAN, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION -LAW VINCENT C. MCCUE, Defendant TO THE PROTHONOTARY: NO. 04-2149 INEQUITY Prior Judge: KEVIN A. HESS PRAECIPE Pursuant to the Order of Court dated July 23, 2012, please withdraw my appearance previously entered in this matter on behalf of Defendant, Vincent C. McCue. Respectfully submitted, DATE: 70/ It li dl ffie, Esquire Supreme Court ID No. 34349 200 North Hanover Street Carlisle, PA 17013 (717) 243-5551 (800) 347-5552 -v rnm zM ?C--) =C:) G7 i -v