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Home My WebLink About09-09-09 (2)Jeffrey B. Engle, Esquire SHAFFER & ENGLE LA W OFFICES 512 Market Street ~o ..~~ ~ ~ ~ , ~~ ~ ~ Millersburg, PA 17061 ~ ~ 3 _°.- -'~ cam? 717-692-2345 *phone ~ ,__.~ f~~ ~:~:~ 717-692-3554 *fax ~ ~' `~'~` ~=~~ Jef ~~hafferengle. com -~ .~ ~?. ~ r.~~ ~., IN THE MATTER OF THE PERSON OF SEAN A. AVENI, AN ADULT INDIVIDUAL IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION N0.21-09-0795 PRELIMINARY OBJECTIONS IN THE NATURE OF A PETITION TO TRANSFER VENUE Respondent, MARK R. AVENI, through his attorneys, Shaffer & Engle Law Offices, LLC, more specifically, Jeffrey B. Engle, Esquire, files the following Preliminary Objections to Petitioner's Petition for Guardianship raising improper venue and in support thereof avers the following: 1. Respondent, MARK R. AVENI, is an adult individual residing at 220 Hereford Lane, Johnstown, Cambria County, Pennsylvania 15905. 2. Respondent is the biological father and caretaker for Sean A. Aveni, the alleged incapacitated person. 1 3. Petitioner, Anita M. Aveni, filed a "Petition to Adjuducate [sic] a Person Incompetent and For the Appointment of a Guardian of the Person" [hereinafter "Petition for Guardianship"] in Cumberland County on August 25, 2009. 4. Petitioner filed an "Important Notice Citation With Notice" [hereinafter "Notice"] at the above-referenced docket on August 31, 2009. 5. Respondent, Mark R. Aveni was served with the Petition and Notice by U. S. First Class Mail on September 2, 2009. 6. Sean A. Aveni, the subject of Petitioner's Petition for Guardianship, was born with Spina Bifida and Hydrocephalus, more commonly known as "water on the brain." He also suffers from restrictive lung disease and requires catherization four (4) times daily. Sean suffers from a diminished mental capacity. 7. Pursuant to Pa.R.C.P. 1028 and 20 Pa.C.S.A § 5511 et seq., venue is improper in this matter for the following reasons: a. The alleged incapacitated person, Sean A. Aveni, is domiciled Cambria County, not in Cumberland County as Petitioner alleges in her Petition for Guardianship. i. Domicile within a county is a jurisdictional prerequisite to proceeding for appointment of guardian. In re DuPuy's Estate, 96 A.2d 318, 320 (Pa.1953) (citing In re Nicholls' Guardian, 86 Pa.Super. 38 (1925)). "The `domicile' of a person is place where he has voluntarily fixed his habitation, with present intention to make it either his permanent home or his home for indefinite future." In re Publicker's Estate, 123 A.2d 655, 658 (Pa.1956). To establish change of domicile, one must show: "(1) physical presence in the place where domicile is alleged to have been 2 acquired, and (2) an intention to make it his home without any fixed or certain purpose to return to his former place of abode." Id. (citing In re Dorrance's Estate, 163 A. 303 (Pa. 1932)). "Residence in a new locality with intent to make that residence a permanent home, coupled with the manifested intent of abandoning the former domicile, must be shown by clear and convincing evidence." In re Estate of Getz, 611 A.2d 778, 781 (Pa.Cmwlth.,1992); In re Edmundson, 167 A. 502, 503 (Pa.Super. 1933) (where a "feeble-minded" person's temporary visit to another county, shortly before proceedings for appointment of guardian where instituted in the visiting county, was incapable of changing his residence from the county in which he resided prior to the temporary visit). ii. It is undisputed by the parties that Sean A. Aveni has resided in Cambria County, Pennsylvania for essentially his entire life. In fact, Sean resided together with Petitioner and Respondent (his parents) at 220 Hereford Lane, Johnstown, Cambria County, Pennsylvania until approximately four (4) weeks prior to this filing. iii. On August 8, 2009, after an argument between Petitioner and Respondent, Petitioner informed Respondent that she was leaving the marital residence with Sean to visit Petitioner's grandmother, who lived approximately fifteen (15) minutes from the marital residence. iv. Instead, on the aforementioned date, Petitioner drove, with Sean A. Aveni to a friends' home in Bell Vernon, Pennsylvania, approximately two (2) 3 hours from the marital residence. Petitioner would not tell Respondent where Sean was located. v. On August 12, 2009, Petitioner returned to the marital residence, without Sean A. Aveni, in order to remove Sean's medical supplies and personal belongings from the home. Still, Petitioner would not inform Respondent where Sean was located. vi. On August 12, 2009, Petitioner drove, with Sean A. Aveni, to her own parents' home at 51 Kensington Drive, Camp Hill, Cumberland County, Pennsylvania. vii. Respondent has requested that Sean A. Aveni be returned to his home, the marital residence; however, Petitioner has refused and continues to keep Sean in Cumberland County, Pennsylvania. viii. Further, Petitioner filed the above-referenced Petition for Guardianship, indicating her intention to remain in Cumberland County indefinitely. ix. It is believed and therefore averred, that Sean A. Aveni does not understand and/or comprehend the nature of his visit at his grandparents' home in Cumberland County, Pennsylvania. Sean has indicated to Respondent over the telephone that Sean believes the visit in Cumberland County to be temporary. x. Additionally, Sean A. Aveni receives social security benefits as a result of his medical conditions. Sean's social security benefit checks are still sent to Respondent's Cambria County, Pennsylvania address and deposited in 4 Respondent's bank account for Sean's benefit at Respondent's Bank in Cambria County, Pennsylvania. xi. Sean A. Aveni maintains a bank account at First National Bank in Cambria County, Pennsylvania. xii. Sean A. Aveni is still enrolled in The Greater Johnstown School District in Cambria County, Pennsylvania. As further evidence of such, Sean's teacher, Louis Abrahms, contacted Respondent to inform him that school would be starting for Sean on September 14, 2009. xiii. It is believed and therefore averred that, Sean A. Aveni did not voluntarily relocate to Cumberland County, Pennsylvania nor has intention to abandon his home in Cambria County, Pennsylvania. b. All witnesses material to Sean A. Aveni's Hearing to Determine Incapacity and Appoint a Guardian, including, but not limited to, Sean's treating physicians, teachers, aides, and/or social workers, are located in Cambria County, Pennsylvania. 8. A hearing on the Petition for Guardianship is scheduled for September 10, 2009 at 3:30 p.m. before this Honorable Court. 5 WHEREFORE, Respondent respectfully requests as that this Honorable Court Order as follows: 1. The Preliminary Objections are sustained; 2. Venue in Cumberland County, Pennsylvania is improper and this matter is transferred to Cambria County, Pennsylvania for further proceedings; and 3. The Cumberland County Orphan's Court is ordered to transfer the file with this Order to Cambria County, Pennsylvania. Respectfully submitted, SHAFFER & ENGLE LAW OFFICES Jeffrey B gl quir ID # 4 512 arke Street Millersburg, P 717-692-2345 Attorney for Respondent 6 IN THE MATTER OF THE PERSON OF SEAN A. AVENI, AN ADULT INDIVIDUAL IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION N0.21-09-0795 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Preliminary Objections was sent First Class U.S. Mail to the following: John M. Kerr, Esquire 5020 Ritter Road, Ste. 109 Mechanicsburg, PA 17055 Attorney for Petitioner Albert H. Masland, Esquire Saidis Flower & Lindsay 26 W. High Street Carlisle, PA 17013 Attorney for Sean A. Aveni Date: `~ fit ~~~--~ Melissa Wise, Paralegal to Jeffrey B. Engle, Esquire SHAFFER & ENGLE LAW OFFICES 512 Market Street Millersburg, PA 17061 (717) 692-2345