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HomeMy WebLinkAbout04-0983 IN THE COURT OF COMMON PLEAS IN CUMBERLAND COUNTY JAMES H. TURBAN Plaintiff vs. No. 04-983 Equity Term VALERIE L. ZEHRING Defendants CIVIL ACTION - EQUITY TO: VALERIE L. ZEHRING, Defendants JARAD W. HANDELMAN, Esquire, Council for the Defendant DATE OF NOTICE: May 27, 2004 IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIM SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CAN NOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP: Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 717-249-3166 ~~ 1;:).t: Esquire Attorney for Plaintiff 3029 North Front Street, Suite 300 Harrisburg, P A 1711 0 (717) 238-9130 IN THE COURT OF COMMON PLEAS IN CUMBERLAND COUNTY JAMES H. TURBAN Plaintiff No. 04-983 Equity Term vs. VALERIE L. ZEHRING Defendant CIVIL ACTION - EQUITY CERTIFICATE OF SERVICE I, Steven R. Snyder, Esquire, hereby certify that a true and correct copy of the foregoing Notice of Praecipe to Enter Judgment by Default was served upon the following as addressed below by depositing the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania on this 27 day of May, 2004: Valerie Louise Zehring 1349 Kuhn Road, Boiling Springs, Pennsylvania 17007 Jarad W. Handelman, Esquire Attorney for the Defendant 134 Sipe Avenue Humme1stown, Pennsylvania 17033 By: ~1L*"1h Steven R. Snyder, Esquire Attorney ID Number 90994 3029 North Front Street, Suite 300 Harrisburg, PA 17110 (717) 238-9130 Attorneys for Plaintiff (") ~~~ "TJ i'l~1 ~;.j" ~.;~ ~ 0'~._ .~~.~:: "/' ='1 -<. . "" = ~J .r- ::>: ~ -< ~ :r-n fnp :;59 00 ::~:rJ 9(> ;srn '-1 ~t":.. "n '< N -.I -a ~ Cf! .;::- JAMES H. TURBAN, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA NO. 04-983 EQUITY TERM v. VALERIE L. ZEHRING Defendant CIVIL ACTION - EQUITY (PARTITION) NOTICE TO PLEAD To: Plaintiff, James H. Turban, and his attorney, Steven R. Snyder, Esquire YOU ARE HEREBY NOTIFIED to file a written response to the enclosed Answer with New Matter and Counterclaim within twenty (20) days from service hereof or a judgment may be entered against you. Respectfully submitted, JAMES, SMITH, DlETTERlCK & CONNELLY LLP Date: June 7, 2004 ~ JARAD W. HANDELMAN, ESQUIRE J.D. No. 82629 P.O. Box 650 Hershey, PA 17033 (717) 533-3280 Attorney for Defendant, Valerie L. Zehring JAMES H. TURBAN, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-983 EQUITY TERM v. VALERIE L. ZEHRING Defendant CNIL ACTION - EQUITY (pARTITION) DEFENDANT'S ANSWER WITH NEW MATTER AND COUNTERCLAIM AND NOW, comes the Defendant, Valerie L. Zehring, by and through her attorneys, James, Smith, Dietterick & Connelly, LLP, and answers the Complaint filed by Plaintiff and avers New Matter and a Counterclaim in response thereto. In support thereof, Defendant avers as follows: I. Admitted. 2. Admitted. By way of further answer, the residence located at One Cedar Cliff Drive, Camp Hill, Cumberland County, Pennsylvania 17011 (hereinafter the "Residence") is now jointly owned by Plaintiff and Defendant as joint tenants with a right of survivorship as evidenced by the Deed attached to Plaintiffs Complaint as Exhibit "C" and also attached hereto as Exhibit "A" and incorporated herein by reference as if set forth in full. 3. Admitted in part; denied in part. It is admitted upon information and belief that Plaintiffs wife died in May 2000. It is denied that Plaintiffs children lived with him at such time. To the contrary, upon information and belief, only Plaintiff's son Daniel was residing in the Residence in May 2000. By way of further answer, the averments of paragraph three (3) are irrelevant to the division of the parties' respective interests in the Residence as requested herein. 4. Admitted. By way of further answer, the Defendant is also the joint record owner of the Residence with Plaintiff, specifically an undivided one-half interest in the Residence as conferred by the Deed evidencing the parties' joint ownership of the Residence as joint tenants with the right of survivorship. See Exhibit "A". 5. Admitted. By way offurther answer, the averments of paragraph five (5) are irrelevant to the division of the parties' respective interests in the Residence as requested herein. 6. Admitted in part; denied in part. It is admitted that Defendant counseled Plaintiffs son. It is denied that such counseling lasted during the time period alleged. To the contrary, Defendant counseled Plaintiff's son from February 1999 until January 2000. By way of further answer, the averments of paragraph six (6) are irrelevant to the division of the parties' respective interests in the Residence as requested herein. 7. Denied as stated. The averments of paragraph seven (7) are denied to the extent the averments are intended to suggest some impropriety on behalf of Defendant. Moreover, the averments intentionally mischaracterize the development of the parties' relationship. Defendant contacted Plaintiff at the end of May 2000 at Plaintiff s request. During the course of such conversation, Plaintiff began to pursue a romantic relationship with Defendant which she resisted. In mid-July 2000, six (6) months after Defendant has stopped counseling Plaintiffs son, Defendant gave in to Plaintiffs consistent advances and began an intimate relationship with him. By way of further answer, the averments of paragraph seven (7) are irrelevant to the division ofthe parties' respective interests in the Residence as requested herein. 8. Denied as stated. The averments of paragraph eight (8) are denied to the extent the averments are intended to suggest some impropriety on behalf of Defendant. Moreover, the averments intentionally mischaracterize the development of the parties' relationship. Plaintiff requested that Defendant move into the Residence with him beginning in July and continuing consistently thereafter. Defendant refused Plaintiffs requests until November 2000, more than four (4) months after the parties became intimately involved and having refused consistent requests to move in from Plaintiff over the same period oftime. In November 2000, Defendant had again refused Plaintiffs invitation to move into the Residence because her brother, Fred Zehring, was living with her at the time, however, Plaintiff invited Defendant's brother to move in as well so as to remove such obstacle from Defendant's cohabitation with him. By way of further answer, Plaintiffs daughter also moved back to the Residence at such time and Plaintiff specifically requested Defendant's assistance in caring for his daughter. By way of further answer, the averments of paragraph eight (8) are irrelevant to the division of the parties' respective interests in the Residence as requested herein. 9. Denied. Defendant is without information or knowledge sufficient to form a belief as to the truth of the averments of paragraph nine (9) and same are denied. By way of further answer, Defendant had absolutely no knowledge of any inheritance to which Plaintiff was entitled from his wife. Defendant was informed by Plaintiff after she moved into the Residence that Plaintiff had received, or would receive, the proceeds of a life insurance policy on his wife in the amount of $50,000.00, however, Defendant was unaware of the existence of any policy other than that of which she was advised. By way of further answer, the averments of paragraph nine (9) are irrelevant to the division of the parties' respective interests in the Residence as requested herein. 10. Admitted in part; denied in part. It is admitted only that the Residence was destroyed by fire on December 26,2001. The remaining averments are specifically denied. It is specifically denied that the Residence was rebuilt and furnished solely by using proceeds from a fire and casualty homeowners' policy. Initially, it is noted that the fire destroyed personalty and furnishings that were brought into the Residence by Defendant, in addition to property that was owned by Plaintiff prior to her occupancy of the Residence. By way of further answer, Plaintiff and Defendant had renovated the entire downstairs and master bedroom in the Residence prior to the fire through their joint efforts and expenditure of time. The majority of such renovations were paid for by Defendant with Plaintiff s assurance that he would one day pay her back for the money, time, and effort expended by Defendant in furtherance of the remodeling. Thus, Defendant had contributed her time, effort, and money to remodeling the house prior to the fire. Contrary to the averments of paragraph ten (10), although insurance monies did provide reimbursement for the costs of rebuilding the home, personalty, furniture, and clothing lost by both Plaintiff and Defendant, Defendant expended additional monies, time, and effort beyond the insurance proceeds to further enhance the Residence during the rebuilding process. Specifically, Defendant undertook the financial responsibility, as well as provided labor, to complete additions to the Residence for such projects as extensive landscaping of the Residence, tiling and flooring in the Residence, all painting and decorating of the Residence, and the installation of smoke detectors in the rebuilt home. In addition, Defendant's family members assisted in the rebuilding of the Residence, including but not limited to the installation of the heating system in the Residence. All the foregoing monetary and labor efforts expended by Defendant and the members of her family in the rebuilding of and addition to the Residence, material enhanced and/or increased the fair market value of the Residence. By way of further answer, during the rebuilding of the Residence, Plaintiff and Defendant jointly resided in an apartment paid for by the proceeds of the fire insurance on the Residence, further evidencing Plaintiffs desire and appreciation of Defendant's contribution and ownership in the Residence. 11. Denied. It is specifically denied that Plaintiff made extensive renovations to the Residence with the proceeds of life insurance proceeds from his wife. To the contrary, as alleged in paragraph ten (10), Plaintiff and Defendant renovated the entire downstairs and master bedroom in the Residence prior to the fire through their joint efforts and expenditure of time. The majority of such renovations were paid for by Defendant with Plaintiff s assurance that he would one day pay her back for the money, time, and effort expended by Defendant in furtherance ofthe remodeling. It is specifically denied that the renovations completed by Plaintiff and Defendant were paid for from proceeds of any life insurance received by Plaintiff and strict proof thereof is demanded at trial. 12. Denied. It is specifically denied that all of the furniture and personal property replaced after the fire was owned by Plaintiff. To the contrary, Defendant brought antique furniture into the Residence upon occupying same in November 2000 that adorned the Residence until the time of the fire. After the fire, items of Defendant's antiques that could be restored were restored, however, the items remained in the Residence and were ultimately largely disposed of by Plaintiff The fire insurance proceeds received by the parties for personalty and furnishings included itemizations of personalty and furnishings belonging to both Plaintiff and Defendant. 13. Denied. It is specifically denied that Plaintiff paid the mortgage, utilities, and taxes on the Residence without contribution from Defendant. To the contrary, Defendant was forced to bail the Residence out of potential foreclosure on two occasions during her occupancy of the home. On each occasion, Plaintiff coaxed the Defendant into paying the mortgage by assuring her that because "this is your house too", Defendant's payment of the mortgage was necessary. The second occasion on which Defendant bailed the home out of foreclosure was in May 2003 at which time Defendant, again with Plaintiff's assurance that the Residence was as much hers as it was his, paid $7,097.00 to bring the mortgage current after Plaintiff had failed to pay the mortgage for four (4) months. In addition to the foregoing payments made by Defendant, Defendant also contributed monetarily to the utilities and household expenses during her occupancy of the Residence. 14. Admitted. By way of further answer, Defendant had grown tired of Plaintiff s promises to repay her for all the monies she had expended towards the Residence for remodeling, renovations and mortgage and household expenses. Moreover, Defendant was afraid that Plaintiff's assurances that the Residence was as much hers as it was his were not enforceable in the event Plaintiff refused to repay her the money she had expended and the amounts by which she had increased the fair market value of the Residence through her efforts, both monetary and labor. Accordingly, Defendant insisted that there be some written agreement memorializing her payment of the reinstatement figure on the mortgage. A true and correct copy of the loan document is attached hereto as Exhibit "B" and incorporated herein by reference as if set forth in fulL In addition, the parties executed an "Agreement for Equal and Equitable Joint Interest of a Residential Property" in November 2001 acknowledging and memorializing Defendant's joint ownership of the Residence with Plaintiff, as well as Plaintiffs clear intention, belief, and promise to provide Defendant with equal ownership of the Residence as ultimately conveyed to her by Deed. A true and correct copy ofthe Agreement executed between Plaintiff and Defendant is attached hereto as Exhibit "c" and incorporated herein by reference as if set forth in fulL 15. Admitted. By way of further answer, the loan document executed by the parties evidences Plaintiffs intention to convey a portion of the Residence to Defendant. The document provided that Plaintiff would repay Defendant from the proceeds of an insurance check from Liberty Mutual Insurance Company "owed to us for household contents from a loss to our home (I Cedar Cliff Drive, Camp Hill) which had occurred in December 2001." See Exhibit "B". In addition, the loan document provided that if Plaintifffailed to repay the money, Defendant could "force [sic] the sale ofthe property to prevent additional financial danger and loss." Id. Accordingly, Defendant avers that the loan document protected not only her right to be repaid the mortgage amounts she expended, but also her property rights in the Residence. By way of further answer, the parties' prior Agreement, attached hereto as Exhibit "e", also acknowledged and memorialized Defendant's joint ownership of the Residence with Plaintiff, as well as Plaintiff's clear intention, belief, and promise to provide Defendant with equal ownership ofthe Residence as ultimately conveyed to her by Deed. 16. Denied as stated. It is specifically denied that Plaintiff "repaid" Defendant the money owed to her as provided for in the loan document. To the contrary, Plaintiff did not "repay" the money to Defendant from the proceeds of an insurance check from Liberty Mutual Insurance Company. Instead, Plaintiff concealed his receipt of the insurance check that was to fund the repayment. During the same time, Plaintiff caused Defendant's furnishings and personalty from the Residence to be auctioned off. Plaintiff received proceeds from the sale of Defendant's property in the amount of approximately $8,000, from which Plaintiff "repaid" Defendant the money she had expended to keep the Residence out of foreclosure. Accordingly, Plaintiff has yet to actually repay Defendant the money she owed and Defendant is entitled to enforce the remedies provided for in the loan document. 17. Admitted. By way of further answer, the averments of paragraph seventeen (17) are irrelevant to this action and irrelevant to the division of the parties' respective ownership interests in the Residence. 18. Admitted. By way of further answer, the monies earned by Defendant were expended for Plaintiffs benefit and that of his children, particularly for maintenance on the Residence and the payment of bills and expenses associated with the Residence that Plaintiff could not pay. 19. Denied. It is specifically denied that Plaintiff received no financial consideration from the operation of Defendant's business from the Residence. To the contrary, Plaintiff specifically received financial benefit from the operation of such business in the nature of Defendant's payments of household bills and expenses, as well as payment by Defendant of bills and expenses related to Plaintiffs children. During the period of time Defendant operated her business from the parties' Residence, Plaintiff had no income, or otherwise had no income that he was willing to expend towards the Residence or his children. 20. Denied. It is specifically denied that Defendant broke up with Plaintiff and moved out ofthe Residence on several occasions. To the contrary, while Defendant and Plaintiff argued about Plaintiff s dishonesty and infidelity, Defendant only moved out of the Residence once during the parties' relationship in February 2003. By way of further answer, the averments of paragraph twenty (20) are irrelevant to the division of the parties' respective interests in the Residence as requested herein. 21. Denied. It is specifically denied that Plaintiff s conveyance of a one-half undivided interest in the Residence to Defendant was for the purpose of holding the relationship together, or otherwise constituted a conditional gift premised on the parties; eventual marriage. The averments of paragraph twenty-one (21) as to any alleged conditional gift are conclusions of law to which no responsive pleading is required and strict proof thereof is demanded at triaL Contrary to the averments of paragraph twenty- one (21), Plaintiffs conveyance to Defendant was an acknowledgement of Plaintiffs long-standing intention to convey an interest in the Residence to Defendant and consistent with Plaintiffs consistent expression of joint ownership ofthe Residence with Defendant in recognition of all the money, time, and personal effort Defendant had expended during the parties; relationship to improving the Residence. By way of further answer, when the parties' first renovated the Residence, Defendant specifically told the Plaintiffthat she would not continue to contribute her time, effort, and money into the Residence without formal acknowledgement of her ownership interest in the home. The conveyance was not a gift conditioned on marriage. 22. Denied. It is specifically denied that Defendant severed the parties' relationship in January 2003. To the contrary, Defendant moved out of the Residence in February 2003 only because she needed to care for her mother who had briefly moved into the Residence with the parties. The relationship continued despite the fact that Defendant left the Residence and did not end until on or about June 28, 2003. 23. Admitted. By way of further answer, the only reason the Deed had not been conveyed prior to May 2003 was because Plaintiff did not pay the transfer tax necessary to complete the recording process. As evident from Plaintiffs counsel's lawyer's letter of April 8, 2003, the Deed was not recorded because "we were waiting for the deposit of approximately $1, I 00.00 more in required transfer tax." See Plaintiff s Complaint, Exhibit "B". It is averred that Plaintiff deliberately failed to provide the transfer tax amount so as to deceive Defendant as to her record ownership in the Residence. Defendant paid the necessary transfer tax and recorded the Deed when she learned of Plaintiff s deception and the failure to record the Deed. 24. Admitted. By way of further answer, Defendant retained her key to the Residence after moving out to care for her mother in February 2003. Plaintiff did not change the locks or otherwise restrict Defendant's access to the home. The foregoing clearly evidences the fact that the parties' relationship had not ceased despite Defendant's leaving the Residence to care for her mother. Moreover, the fact that Defendant was still free to come and go as she pleased in the Residence further evidences Defendant's ownership interest in the Residence and Plaintiffs acknowledgement of same. 25. Admitted upon information and belief. By way of further answer, it is specifically denied that Plaintiffs mental health precluded him from making a valid conveyance of a one-half undivided interest in the Residence to Defendant. Strict proof of any alleged mental incapacity to make such a conveyance is demanded at trial. 26. Admitted in part; denied in part. It is admitted only that Plaintiff was committed to Holy Spirit Hospital on or about June 28,2003. The remaining averments of paragraph twenty-six (26) are specifically denied and strict proof thereof is demanded at trial. By way of further answer and to the extent necessary, Plaintiff attempted to commit suicide on June 28, 2003 by ingesting a large amount of prescription pills. Having overdosed, Plaintiffs then roommate, Tony Fantasia, called emergency services to assist Plaintiff. Defendant was not in the Residence at the time and was contacted by Mr. Fantasia and advised that Plaintiffhad overdosed. Upon arriving at the Residence, the authorities informed Defendant that they desired her authority to involuntarily commit Plaintiff for mental health treatment as a result of his actions. Defendant provided such authority to permit Defendant to be treated for his suicide attempt and did not persuade Mr. Fantasia to do anything. By way of further answer, Plaintiff s own daughter testified against Plaintiff after his commitment to the hospital and in support of Plaintiffs continued treatment at the hospital. See Plaintiff's Complaint, Exhibit "D". The records attached to Plaintiffs Complaint as Exhibit "D" further evidence Plaintiffs abuse of hospital staff after his commitment and the recommendations of the mental health professional on staff at the hospital that Plaintiff remain committed at the hospital for further treatment. Defendant agreed to care for Plaintiffs daughter while he was committed to the hospital so as to preclude Plaintiffs daughter from being taken from him. Byway of further answer, it is specifically denied that Plaintiffs commitment or mental health precluded him from making a valid conveyance of a one-half undivided interest in the Residence to Defendant. Strict proof of any alleged mental incapacity to make such a conveyance is demanded at trial. 27. Denied. It is specifically denied that Defendant moved out nearly all of Plaintiffs furniture out of the Residence. To the contrary and by way of further answer, Plaintiff s attempted suicide and concurrent threats against Defendant finally caused Defendant to end the parties' relationship on June 28, 2003. After advising Plaintiff she would no longer be involved in a relationship with him, Defendant moved out only her personal belongings and remaining furniture in the home, in addition to approximately one-half of the property Plaintiff and Defendant had acquired together. Defendant left the majority of the furniture and personalty in the home. 28. Denied as stated. Defendant moved into her brother's home after ending her relationship with Plaintiff. Tony Fantasia could not continue to reside in the Residence with Plaintiff because of Plaintiff s behavior and because of the totality of the circumstances that had transpired in the Residence. Accordingly, Mr. Fantasia subsequently moved into Defendant's brother's home and rented a room from Defendant's brother from July 2003 to September 2003. WHEREFORE, Defendant prays that this Honorable Court deny all relief requested in Plaintiffs Complaint and award Defendant relief in the nature ofthe partition of the Residence as further requested herein. NEW MATTER 29. The averments of para graphs one (1) twenty-eight (28) are incorporated herein by reference as if set forth in full. 30. Plaintiffs Complaint fails to state a claim upon which relief can be granted. 31. Plaintiff s Complaint is barred by the statute of frauds. 32. Plaintiffs Complaint is barred by the doctrine of parole evidence. 33. Plaintiff conveyed an undivided one-half interest in the Residence to Defendant. 34. Plaintiffs conveyance to Defendant was not a gift conditioned on marriage, but instead was in recognition and acknowledgement of Defendant's contribution of money, time, and effort into the remodeling, renovation, and addition to the Residence, all of which increased the fair market value of the residence, as well as Defendant's love and companionship prior to the conveyance. 35. Plaintiff did not lack the mental capacity to convey an undivided one-half interest in the Residence to Defendant. 36. Plaintiff has failed to state claim for undue influence, fraud, or gross deception against Defendant. 37. Plaintiffs conveyance of an undivided one-half interest in the Residence to Defendant was voluntary, free from coercion, and otherwise a valid transfer under Pennsylvania law. 38. In the event it were to be determined that the conveyance from Plaintiff to Defendant were invalid or otherwise ineffective for the reasons alleged by Plaintiff, Defendant is entitled to be reimbursed for all monetary sums she expended for (i) improvements to the Residence, (ii) maintenance of the mortgage and expenses on the Residence, (iii) all monetary amounts loaned to Plaintiff in connection with the Residence, and (iv) loss of her personal property and furnishings as a result of Plaintiffs conduct, including but not limited to causing Defendant's furnishings and personalty to be subject to auction. Rights to reimbursement of sums expended and compensation for ownership interest in the Residence, in the absence of the enforceability of the Deed, arises separately from the documents attached hereto as Exhibits "B" and "C" respectively. WHEREFORE, Defendant prays that this Honorable Court deny all relief requested in Plaintiff s Complaint and award Defendant relief in the nature of the partition of the Residence as further requested herein. COUNTERCLAIM FOR THE PARTITION OF REAL PROPERTY PURSUANT TO Pa.R.c.P. 1556 39. The averments of paragraphs one (I) through thirty-eight (38) are incorporated herein by reference as if set forth in fulL 40. This action is brought pursuant to Rule 1564 and Rule 1556 of the Pennsylvania Rules of Civil Procedure. 41. Defendant, Valerie L. Zehring, is an adult individual currently residing at 1349 Kuhn Road, Boiling Springs, Cumberland County, Pennsylvania. 42. From the period of November 2000 until February 2003, Defendant resided at One Cedar Cliff Drive, Camp Hill, Cumberland County, Pennsylvania 17011 (referred to herein and hereinafter as the "Residence") with Plaintiff. 43. Plaintiff, James H. Turban, is an adult individual currently residing at One Cedar Cliff Drive, Camp Hill, Cumberland County, Pennsylvania 17011. 44. Plaintiff and Defendant have never been married. 45. Plaintiff and Defendant were involved in a relationship for over three (3) years spanning from in or about June 2000 until June 28, 2003. 46. Plaintiff and Defendant are the owners as joint tenants with the right of survivorship of the whole of the real property situate at One Cedar Cliff Drive, Camp Hill, Cumberland County, Pennsylvania 170 II, more particularly described on Exhibit "A" attached hereto and made a part hereof. 47. Plaintiff's conveyance of an undivided one-half interest in the Residence was consummated in May 2003 in recognition of Plaintiffs long-standing, expressed intention to acknowledge and memorialize Defendant's joint ownership in the Residence and was in recognition and acknowledgement of all the contributions made by Defendant to the Residence, including but not limited to renovation and remodeling, as well as monetary contributions to the Residence, its maintenance, mortgage, and upkeep, made by Defendant prior to the conveyance. 48. There is a mortgage owned and held on the interests of both Plaintiff and Defendant by a banking institution in the whole of the parcel of said real property to secure the payment of a sum owing on the property. 49. Plaintiff is currently in possession of the jointly owned property of Plaintiff and Defendant and has been in sole possession of same since Defendant's departure from the Residence in February 2003 and since the end of the parties' relationship on June 28, 2003. 50. Prior to the conveyance of the Residence from Plaintiff to Defendant, the parties resided together for approximately two (2) years in the Residence. 5!. During the parties' joint residency in the Residence prior to and concurrently with the conveyance, Defendant contributed her money, time, and labor to remodeling and improvements done on the property including, but not limited to contribution to the following which substantially increased the value of the Residence: (a) Remodeling and renovation of the entire downstairs of the Residence; (b) Remodeling and renovation of the master bedroom; (c) Post-fire remodeling, renovation and addition to the Residence including substantial landscaping on the Residence; (d) Post-fire remodeling, renovation and addition to the Residence including installation oftile and slate floors in the Residence; (e) Post-fire remodeling, renovation and addition to the Residence including all painting and interior design ofthe Residence; (f) Installation of smoke detectors in the Residence; and (g) Installation of heating system in the Residence completed by Defendant's brother. 52. The foregoing contributions of Defendant to the Residence substantially increased the fair market value ofthe home. 53. In addition to a one-half undivided interest in the Residence, Defendant is entitled to a credit for her contribution to the increase in the fair market value of the Residence resulting from her efforts in increasing the fair market value of said property in the manner described above in paragraph fifty (50). 54. Defendant left the Residence in February 2003. 55. Defendant is entitled to a credit for one-half ofthe fair rental value of the Residence since her departure in February 2003, or alternatively, from the time the conveyance is deemed effective. 56. In addition to the remodeling, renovation, and addition efforts expended by Defendant on the Residence as described above in paragraph fifty (50), Defendant also expended sums of money towards the mortgage on two separate occasions during the parties' relationship, in addition to contribution to the household expenses, maintenance, and bills. 57. Defendant paid approximately $8,000 to bring the mortgage current after Plaintiff failed to make payment on the obligation, the last such payment having been in the amount of $7,097 .00 in May 2003 for which Defendant was never reimbursed or otherwise credited with. 58. Defendant is entitled to a credit in the amount of the reduction in principle of the existing mortgage caused by her payment of the aforesaid sums without contribution from Plaintiff. 59. Plaintiff is entitled to one-half ofthe equity in the real property described herein and jointly owned by the Plaintiff and Defendant, in addition to all other credits to which Defendant is entitled and claimed herein, after satisfaction of the mortgage and after crediting Defendant with her contributions to the increased fair market value of the Residence in the manner alleged herein. 60. The whole ofthe real property described in Exhibit "A" attached to this Complaint can be partitioned among the parties to this action, who are the owners of said real property, according to their respective interests therein, without prejudice to any of said owners or to any other person interested therein. WHEREFORE, Defendant, Valerie L. Zehring, prays: 1. That this Honorable Court decree partition of the above described real property among the parties thereto according to their respective rights and the rights of others interested therein; 2. That the Plaintiff and all persons unknown who have any estate, interest, or claim in said real property, or any part thereof, or any lien thereon, be summoned to answer this Counterclaim, and that the share or interest of each and every party hereto and of all said persons unknown be ascertained and determined by the Court; 3. That the liens, encumbrances, and claims of whatever nature held by the Plaintiff and Defendant, or any person known or unknown, against said real property be related, restricted, and allocated to the respective portions so allotted, to which they may appropriately pertain; 4. That because the Residence is incapable of physical division that the real property be sold in its entirety, and a division of the net proceeds thereof among the parties entitled thereto, and payment of said encumbrances, liens, and claims from the several shares of such proceeds, be adjudged according to the respective rights of the parties, including a credit to Defendant for the items alleged herein; 5. That Defendant be granted such other and further relief as the court may deem just and equitable. Respectfully submitted, JAMES, SMITH, DIETTERICK & CONNELLY LLP Date: June 7, 2004 --.Y'~qi\ QQ JARAD W. HANDELMAN, Esquire I.D. No. 82629 P.O. Box 650 Hershey, P A 17033 (717) 533-3280 Attorney for Defendant, Valerie L. Zehring VERIFICATION The undersigned, JARAD W. HANDELMAN, ESQUIRE, of the law firm of James, Smith, Dietterick & Connelly LLP, Hershey, Pennsylvania, hereby certifies that the foregoing Answer With New Matter and Counterclaim has been prepared by me by knowledge and information acquired during the course of my representation of Defendant, Valerie L. Zehring; that I execute this verification as the averments in the foregoing document pertain to my actions and conversations I have had with the referenced individual(s) regarding the subject matter of the document; that I execute this Verification on behalf of Defendant so as to preserve the time requirements of the Answer; and that false statements herein are made subject to the penalties of 18 Pa.C.S.A. 94904 relating to unsworn falsification to authorities. (p - fR - O<:.f DATE -:\~~Q JARAD W. HANDELMAN, ESQUIRE CERTIFICATE OF SERVICE I, JARAD W. HANDELMAN, ESQUIRE, do hereby certify that I served a true and correct copy of the foregoing Answer With New Matter and Counterclaim upon the following below-named individual(s) by depositing a certified copy of the same in the United States mail, postage prepaid, at Hershey, Pennsylvania, this 7'h day of June, 2004 to: SERVED UPON: Steven R. Snyder, Esquire 302 North Front Street, Suite 300 Harrisburg, PA l7110 ~~~O~ ------ JARAD W. HANDELMAN, ESQUIRE / , C.,_ , -~ ._--1 i~FI ,1 -~:~:j :~ Co; \,," (:',1 Exhibit A Tax Map No. 21-F-22-119 and 21-8-28-725 DEED Two (2002). tI.. . THIS INDENTURE, made the J day o~, in the year Two Thousand BETWEEN JAMES H. TURBAN, an unmarried man, of Cumberland County, Pennsylvania, hereinafter referred to as "Grantor," party of the first part, AND J.~S H. TURBA.N and VALERIE L. ZEHRING. joint tenants ,,~th rights of survivorship, of Cumberland County, Pennsylvania, hereinafter referred to as "Grantees," parties of the second part. WITNESSETH, That said Grantor, party of the first part, for and in consideration of love and affection and other good and valuable consideration, well and truly paid by the said Grantees to the said Grantor, at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, has granted, bargained, sold, aliened, enfeoffed, released, conveyed and confirmed, and by these presents does grant, bargain, sell, alien, enfeoff, release, convey and confirm unto the said Grantees, their heirs and assigns: ALL THOSE CERTAIN two (2) parcels of ground situate in Lower Allen Township, Cumberland County, Pennsylvania, more particularly bounded and described as follows, to wit: Parcel I: BEGINNING at a point at the southwest corner of other property which the Grantor owns, said point being Sout.h 16 degrees 21 minutes 28 seconds West, a distance of 40 feet; thence South 63 degrees 30 minutes East, a distance of I 19.73 feet; thence South 27 degrees 14 minutes East, a distance of 128.32 feet from the intersection of the eastern right of way line of Creek Road and the southern right of way line of Cedar Cliff Drive; thence North 62 degrees 46 minutes East, a distance of75.0 feet to a point on the line of land now or formerly of Bliss; thence along said land and other land now or formerly of Hart, South 27 degrees 14 minutes East, a distance of 146.54 feet to a stake on line ofland now or formerly of Richard Barlup; thence South 58 degrees 46 minutes West, a distance of 141.44 feet to a stake at corner of land of Eberly Mills Church of God; thence North 22 degrees 56 minutes West, a distance of 165.58 feet to a stake on line ofland now or formerly of Martha E. Mowery and being Lot No.3 on the hereinafter mentioned plan of lots: thence :1350861 along Lot 3. North 67 degrees 27 minutes East. a distance of 5356 feet to a point on other lands of Mary L. Baer; thence South 27 degrees 14 minutes East. a distance of 8.32 feet to a point. the place of BEGINNING. BEING Lot No. 3-A on the plan of lots prepared by Edward F. Sanders. R.S.. dated August 20, 1975. which plan is recorded in Plan Book 27. Page 27. Cumberland County records. Parcel 2: BEGINNING at an iron pipe in the Southerly right of way of Cedar Cliff Drive, which point is South 75 degrees 52 minutes West, a distance of 100.86 feet from a stake located on the Southerly right of way line of said Cedar Cliff Drive at its point of intersection wit.h Creek Road; thence South 27 degrees 14 minutes East, a distance of 102.65 feet to an iron pipe; thence South 62 degrees 46 minutes West, a distance of 55 feet; thence South 27 degrees 14 minutes East, a distance of 120 feet; thence North 62 degrees 46 minutes East, a distance of 75 feet to a point at intersection of land now or formerly of William N. Bliss; thence by land now or formerly of William N. Bliss North 27 degrees 14 minutes West, a distance of 218 feet to a stake in the Southerly right of way line of Cedar Cliff Drive; thence by the Southerly right of way line of said Cedar Cliff Drive, . South 75 degrees 52 minutes West, a distance of20.53 feet to an iron pipe, the place of BEGINNING. BEING Lot No. I on a Plan of Lots of Cora E. Hart, dated September 13, 1965 by D.P. Raffensperger, Registered Surveyor, recorded in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania, and subject to rights of way as sho,^,TI on said Plan of Lots. AND THE ABOVE PARCELS BEING the same premises which Wayne L. Baer by his Attorney-in-Fact Eileen F. Parthemore, by deed dated May 25, 2000 and recorded in the Office of the Recorder of Deeds in and for Cumberland County on June I, 2000 in Book 222, Page 517, granted and conveyed unto James H. Turban, the Grantor herein. TOGETHER with all and singular the dwelling house, tenements, hereditaments and appurtenances to the same belonging, or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof; AND ALSO all the estate, right. title, interest, property, claim and demand whatsoever, both in law and equity, of the said Grantor, of. in, to or out of the said premises, and every part and parcel thereof. TOGETHER with all rights of utility and access to the Parcels and premises above described as set forth in a Right of Way Agreement made the 29th day of June, 1994, recorded in Record Book 478 at Page 142 et seq. in the Office of the Cumberland County Recorder of Deeds. reference thereunto being had, as more particularly appears. TO HAVE AND TO HOLD the said lot of land with all and singular the dwelling house and premises herein described together with the appurtenances. unto the said Grantees. their heirs and assigns, to and for the only proper use and behoof of said Grantees. their heirs and assigns forever. SUBJECT. nevertheless. to the Right of Way Agreement above referenced. AND the said Grantor, for himself and his heirs, executors and administrators does covenant grant and agree to and with the said Grantees, their heirs and assigns, that the said Grantor, his heirs and assigns, all and singular the hereditaments and premises hereby granted, or mentioned and intended so to be, with the appurtenances unto the said Grantees, their heirs and assigns, against the said Grantor, his heirs and assigns, and against all and every other person or persons, whomsoever, lawfully claiming or to claim the same or any part thereof, by, from or under him, her, them or any of them, Shall and Will, by these presents, WARRANT A..ND FOREVER DEFEND. IN WITNESS WHEREOF, the said Grantor, has set hereunto his hand and seal the day and year first above written. WITNESS: , ) Dr / ..1" I.vJ ~ U;l ~. ~~ il, I u-,,-,-./y TOR:Y/a- . / (SEAL) ,0 James H. Turban / COMMONWEALTH OF PENNSYL V ANlA COUNTY oy}r ) ) ss: ) '^ On this ~ day of Jtti4~ , 2002, before me, a Notary Public, the undersigned officer, personally appeared Ja#s H. Turban, an unmarried man of Cumberland County, PerL'1sylvania, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within document and acknowledged that he executed the same for the purposes therein contained. IN WITNESS WHEREOF, ! have hereunto set my hand and notarial seal. I _&ell Naina J. Sang'M. NolBJy PIt* City Of t-IanisburS. Dauphin County I MyCu..,........Expi...Ajllil".2006 _. ~ Assodation 01"-""" ~~Vt': . No~ PudiC- {j My Commission Expires: CERTIFlCA TE OF RESIDENCE L hereby certiiY that the precise residence of the Grantee herein is as follows: James H. Turban and Valerie L. Zehring 1 Cedar Cliff Drive Camp Hill, PA 1701 L~ . \ .~ <"t-",A-.y- ~': 't (~ .~~.~~~'~/ J-'Y\JAA-'-Y Attorney or Agent for G~ c.~ ~i?L COMMONWEAL TH OF PENNSYL VA..NIA ) ) 55: COUNTY OF CUMBERLAND ) RECORDED in the Office of the Recorder of Deeds, in and for said County, in Record Book _, Page _' WTTNESS my hand and official seal this _ day of ,2002. Recorder of Deeds Exhibit B Promissory Note May 29, 2003 L James Turban (Borrower), do agree to pay Valetie Zehring (Lender), the sum of $7097 .00,. c1l~t)~e_ti",.e of !e~j~t of insu~ c):J"eckfmm.1iberty MlItuJl!lns.urancc.Company ~ Said check is the balance owed to us for housebold contents from a fire loss to our home, (J Cedar Cliff Drive, Camp Hili), which had occurred in December, 2001. This money is being provided by Lender to Borrower in order to prevent foreclosure to the above-mentioned property. ,..-- ---....,.....--.---.. 1 understand and agree to the terms of this Note: Valerie Zehring will hold as collateral a diamond engagement ring set, the certificare of value for the ring set, and the title to .Tames Turban's 1990 Volkswagen vehick Upon reeeipt of payment of'$7097.00, all collateral as stated shall be returned in the same condition as originally held. I, James Turban, understand and agree to the tenns that in the event of default of this note, Valerie Zehring has the legal right to keep items held in collateral, as well as, take allY and all legal action against borrower that is deemed necessary andjust This mayor may not include the force of the sale of the property to prevent additional financial danger aM loss. Valerie Zehring is seeking her own legal advice and she has made this clear to me. . We both hold this to be true and correct as of this date. Signed this date: - May 29, 2003 i ' { T t\: 'e vI'- yl>> \@_ .,~. !'g-n*'. cI B~'~ '/?~ '-./ ) .' ""'~ '-f/ tlftvu ;re. 51 ,'/ fuvr,~ () (' . - , I'l/.{. -J-h,,) cJGHl d.o-'f 01 ~~ beWt NO'IU lVLCl7}, ;>al3 Notarlal Seal Kimberly A. Meals. Notary PubHc City Of Harrisburg, Dauphin County My CommIssion Expj.... Mar. ", 2007 PY\em~r. PemS'ytvania Association Of NoIalieS 'J/ (YLp.a.1CJ Exhibit C ,..,\.,,,'\eE:I~1e.i" r FU"" EC,;UAi... Ai>iLi EQuiTAoLE ,jOiNT iNTREST ~; ,^, ~:~;S[-!rfl~.L F'R.~.\~'CR;'/ James Henry Turban (property owner) Vaierie Louise Zehrinq (Fiancee) Property: 1 Cedar Cliff Drive. Camp Hili. Pa 17011. This is a legal and binding agreement between Valede L Zeilring and .James H. Turban: Said aqreement qrailts 'NlIa! and equitable interest of the property at 1 Cedar Cliff Drive to Valerie Zehring including the same rights and nrivilf!ges associated with property ownership as James Turban as outlined within. it is agreed that in tile event of a domestic dispute that wouid require temporary separation of the parties named in this agreement. that James will ieave the premises for a period of time mutually agreed to by both parties. in the event that the relationship between the two parties dissoives, it is agreed that Valerie will receive reimbursement of all funds invested in the said property, in the amount of $9,000.00 and paid in full within 90 days from the date that Valerie vacates the premises. Aiso in the event that the relationship between the two parties dissolves. it is agreed that Valerie will have sixty days to (1) secure new living arrangements and (2) remove ali property originaiiy belonging to her, without any interference from James, In addition, both parties will equitably divide all property jointly acquired during the duration of their relationship. in the event that James and Valerie become married, this agreement wiil become null and void, as Valerie will have all the rights and privileges of rr.."rriage and joint vwnership as outlined by the laws of the state of Pennsylvania. ...-- NottYial Seal . I malo ,J. Claudio, Notary PubliC Lemoyne Bora, cur:-berl~d,~o~~ty I My Commission ExpIres Feo. LoS, .:.002 Date: Valerie L. r-~-, c-., , .L- (~ -'1 :7! --.:;,; f-;-1 I -._J 2.! '"j to") ", CJ FEDERMAN AND PHELAN BY: FRANK FEDERMAN, ESQUIRE Identification No. 12248 1617 John F. Kennedy Boulevard Suite 1400 Philadelphia, PA 19103-1814 (21 'i) 'i111-7000 Attor~y for Plaintiff WASHINGTON MUTUAL BANK FA. S/B/M TO WASHINGTON MUTUAL HOME LOANS, INC., S/B/M TO FLEET MORTGAGE CORP., FIK/A FLEET REAL ESTATE FUNDING CORP. : COURT OF COMMON PLEAS : CIVIL DIVISION Plaintiff : CUMBERLAND COUNTY vs. : NO. 04-11 49-CIVIL SCOTT R. KUHN Defendant( s) AFFIDAVIT OF SERVICE OF COMPLAINT BY MATI, PURSUANT TO COURT ORDF.R I hereby certifY that a true and correct copy of the Civil Action Complaint in Mortgage Foreclosure in the above captioned matter was sent by regular and certified mail, return receipt requested, to the following persons, SCOTT R. KUHN at 38 BEAVER STREET, ENOLA, P A 17025 on May 20, 2004, in accordance with the Order of Court dated May 6, 2004. The undersigned understands that this statement is made subject to the penalties of 18 Pa. C.S. 94904 relating to unsworn falsification to authorities. Date: .Tnne 2, 2004 DERMAN, ESQUIRE ey for Plaintiff C) -;1 --~ c' Steven R. Snyder, Esquire Attorney lD Number 90994 3029 North Front Street, Suite 300 Harrisburg, P A 1711 0 (717) 238-9130 Attorney for Plaintiff IN THE COURT OF COMMON PLEAS IN CUMBERLAND COUNTY JAMES H. TURBAN Plaintiff Civil Action - EQUITY v. No. 04-983 VALERIE L. ZEHRING Defendant ACCEPTANCE OF SERVICE I accept service of the Complaint in the matter of James H. Turban on behalf of Valerie Louise Zehring and certifY that I am authorized to do so on her behalf. '1-Z7-0,,-/ Date -J~~~Q Attorney for Defendant 134 Sipe Avenue Hummelstown, Pennsylvania 17033 o (~~ [';-" -< .j:- K, = 5::2 o -n .-, ~:1J n'hi un ~o T Or. ~~ :::~'l ..,....... ~~J:2 '.', \ '-- ~~~ , \.D <2 .1.- (J. IN THE COURT OF COMMON PLEAS IN CUMBERLAND COUNTY JAMES H. TURBAN Plaintiff v. No. 04-983 Equity Term VALERIE L. ZEHRING Defendant Civil Action - EQUITY PRAECIPE FOR DEFAULT JUDGMENT To the Prothonotary: Enter judgment in favor of Plaintiff and against: VALERIE L. ZEHRING, Defendant, for want of an answer as follows: (X) For a declaration and determination that the agreement between Plaintiff and the Defendant to transfer one half of an interest in the residence and property to Defendant was an antenuptial conditional gift made in contemplation of and conditioned on their eventual marriage, and since the marriage never took place, Defendant shall reconvey her interest in the said real estate to Plaintiff; (X) For an order compelling Defendant to transfer sole legal title and possession of the subject property to Plaintiff; (X) For an order that the Defendant be forever barred from asserting any right, lien, title or interest in the land inconsistent with the interest or claim of the Plaintiff set forth in the Complaint. I certifY that written notice ofthe intention to file this Praecipe was mailed or delivered to the party against whom judgment is to be entered and to his attorney of record, if any, after the default occurred and at least ten (10) days prior to the date of the filing of this Praecipe. A copy of the notice is attached. R.C.P. 237.1 st~ ~~(l:- Attorney for Plaintiff Attorney ID Number 90994 3029 North Front Street, Suite 300 Harrisburg, P A 17110 (717) 238-9130 NOW, this L day of U",. , 2004, judgment is entered in favor of Plaintiff, JAMES H. TUrU?AN;d against Defendant, VALERIE L. ZEHRING by default for want of an answer as per the above certification. ~. f( ;P~. ~' Prothonotary, Cumberlfui<j;County IN THE COURT OF COMMON PLEAS IN CUMBERLAND COUNTY JAMES H. TURBAN Plaintiff o S ~ ","1-'" No. 04-983 Equity T~ vs. VALERIE L. ZEHRING Defendants 'L..' :-- :::: CIVIL ACTION - EQUlTY ~ ~,__ r ; :;.> {~: C:? ~ ~ TO: VALERIE L. ZEHRING, Defendants JARAD W. HANDELMAN, Esquire, Council for the Defendant DATE OF NOTICE: May 27,2004 IMPORTANT NOTICE YOU ARE IN DEF AUL T BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIM SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAYBE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOOSE YOUR PROPERTY. OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CAN NOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP: Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 717-249-3166 ~t1..~~ Steven R. Snyder, Esquire Attorney for Plaintiff 3029 North Front Street, Suite 300 Harrisburg, P A 17110 (717) 238-9130 ~ 0 = 11 .<:" - :;;:".. ~. ::;:l m:D r- -elm :::19 90 ~~~S ;:"'-.;n"'; '~~ <,:;:.. :-'i fv -.J IN THE COURT OF COMMON PLEAS IN CUMBERLAND COUNTY JAMES H. TURBAN Plaintiff vs. No. 04-983 Equity Term VALERIE L. ZEHRING Defendant CIVIL ACTION - EQUITY CERTIFICATE OF SERVICE I, Steven R. Snyder, Esquire, hereby certifY that a true and correct copy of the foregoing Notice of Praecipe to Enter Judgment by Default was served upon the following as addressed below by depositing the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania on this 27 day of May, 2004: Valerie Louise Zehring 1349 Kuhn Road, Boiling Springs, Penosylvania 17007 Jarad W. Handelman, Esquire Attorney for the Defendant 134 Sipe Avenue Hummelstown, Pennsylvania 17033 By: ~IL,~ Steven R. Snyder, Esquire Attorney ID Number 90994 3029 North Front Street, Suite 300 Harrisburg, P A 17110 (717) 238-9130 Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS IN CUMBERLAND COUNTY JAMES H. TURBAN Plaintiff vs. No. 04-983 Equity Term VALERIE L. ZEHRING Defendant CIVIL ACTION - EQUITY CERTIFICATE OF SERVICE I, Steven R. Snyder, Esquire, hereby certify that a true and correct copy of the foregoing Praecipe for Default Judgment was served upon the following as addressed below by depositing the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania on this ~ day of June, 2004: Valerie Louise Zehring 1349 Kuhn Road, Boiling Springs, Pennsylvania 17007 Jarad W. Handelman, Esquire Attorney for the Defendant 134 Sipe Avenue Hununelstown, Pennsylvania 17033 ~ , ,.": 1""_) ,. -:" CJ ~ ~ ~ .. -n < . ._~ -...a \ \ i \ ~ ~ '" ~ ':::' , , ...." --, 1 -'" ~..., } e ~ -'1 ~. C.,\ , ~ t .~.~ (, \;' 0 .' , , '" .. .\ "" 1'J .-.\ ~ ~ -C ~~ \'. :$ 1- \ IN THE COURT OF COMMON PLEAS IN CUMBERLAND COUNTY JAMES H. TURBAN Plaintiff v. No. 04-983 Equity Term VALERIE L. ZEHRING Defendant Civil Action - EQUITY PRAECIPE TO VACATE DEFAULT JUDGMENT To the Prothonotary: Vacate Default Judgment filed in the above matter on June 7, 2004. A copy ofthe Praecipe for Default Judgment is attached. Date: ~llo/ 1)4 I /L Steven R. Snyder, Es Attorney for Plaintiff Attorney ID Number 90994 3029 North Front Street, Suite 300 Harrisburg, PA 17110 (717) 238-9130 . ~ Q NOW, this A..: day of ,At.( , 2004, default judgment has been vacated in the matter of JA ES H. TURBAN. Plaintiff against Defendant, VALERIE L. ZEHRING. ~, /. ,f~'i!i' Prothonotary, CumberIan C ty ~~ .... ........ 0' ~ -.l; \.j ~ e. ~ , ~}t 'P~ .~ f "'illil/!Il} ('.\'I'F'OI ~!, 1'1/ """l, . ..~ ) "I.'YY) r".\",,:,q,:~'n"'" I\J../"{""., \"""', ""'" II V ze =6 HV 91 Nnr ~OOZ tlUtWNOH10i:ld :JfJ,i :10 30liio-a31l.:l IN THE COURT OF COMMON PLEAS IN CUMBERLAND COUNTY JAMES H. TURBAN Plaintiff v. No. 04-983 Equity Term VALERIE L. ZEHRING Defendant Civil Action - EQUITY PRAECIPE FOR DEFAULT JUDGMENT To the Prothonotary: Enter judgment in favor of Plaintiff and against: VALERIE L. ZEHRING, CJ c Defendant, for want of an answer as follows: ( r -.J ,.-- ,'---, -0 (X) For a declaration and determination that the agreement between Plaintiffand :-: ----":;; ~ the Defendant to transfer one half of an interest in the residence and property to Defendant was an antenuptial conditional gift made in contemplation of and conditioned on their eventual marriage, and since the marriage never took place, Defendant shall reconvey her interest in the said real estate to Plaintiff; (X) For an order compelling Defendant to transfer sole legal title and possession of the subject property to Plaintiff; (X) For an order that the Defendant be forever barred from asserting any right, lien, title or interest in the land inconsistent with the interest or claim of the Plaintiff set forth in the Complaint. "-> C::.:) C~:::l ~- o -" -; -,- fiiFJ -om -'JC1 ,-.!) i~ , (-, _....J .;,:". (-,:.,j.1 --~~ ( ) .~--)m -.-':"'! L.. ~ .~-:.: o -<C I certify that written notice of the intention to file this Praecipe was mailed or delivered to the party against whom judgment is to be entered and to his attorney of record, if any, after the default occurred and at least ten (10) days prior to the date of the filing of this Praecipe. A copy of the notice is attached. R.C.P. 237.1 Steven R. Snyder, 'quire Attorney for Plaintiff Attorney ID Number 90994 3029 North Front Street, Suite 300 Harrisburg, P A 1711 0 (717) 238-9130 NOW, this 1'" day of ~ ' 2004, judgment is entered in favor of Plaintiff, JAMES H. TURB Nand agamst Defendant, VALERIE L. ZEHRING by default for want of an answer as per the above certification. ~~ R.~,~ Prothonotary, Cumberland County , IN THE COURT OF COMMON PLEAS IN CUMBERLAND COUNTY JAMES H. TURBAN Plaintiff (') ~ ~,. ";::,,_Y., No. 04-983 Equity T~ (/--'> -,' vs. VALERIE L. ZEHRING Defendants ~~" CIVIL ACTION - E<Jiu.:ITY :::: 5: (,,:~ C:? TO: VALERIE L. ZEHRING, Defendants JARAD W. HANDELMAN, Esquire, Council for the Defendant -;J -, DATE OF NOTICE: May 27, 2004 IMPORTANT NOTICE YOU ARE IN DEF AUL T BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIM SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAYBE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOOSE YOUR PROPERTY. OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CAN NOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP: Cumberland County Bar Association 32 South Bedford Street Carlisle, P A 17013 717-249-3166 ~IL ~~ Steven R. Snyder, Esquire Attorney for Plaintiff 3029 North Front Street, Suite 300 Harrisburg, P A 17110 (717) 238-9130 ......, = = .r:' o -n ::;:J rnr -om ::;9 0- ::",:JY .}-.-n (.:J;;:::-) ::?'::~;:, ,-\' . ~::..i -.> ..:.-., ~ ~ :.;.-~ -- r0 -.J ~ - . IN THE COURT OF COMMON PLEAS IN CUMBERLAND COUNTY JAMES H. TURBAN Plaintiff vs. No. 04-983 Equity Term VALERIE L. ZEHRING Defendant CIVIL ACTION - EQUITY CERTIFICATE OF SERVJ[CE I, Steven R. Snyder, Esquire, hereby certify that a true and correct copy of the foregoing Notice of Praecipe to Enter Judgment by Default was served upon the following as addressed below by depositing the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania on this 27 day of May, 2004: Valerie Louise Zehring 1349 Kuhn Road, Boiling Springs, Pennsylvania 17007 Jarad W. Handelman, Esquire Attorney for the Defendant 134 Sipe Avenue Hummelstown, Pennsylvania 17033 BY:~~'P-,. Steven R. Snyder, Esquire Attorney ID Number 90994 3029 North Front Street, Suite 300 Harrisburg, PA 17110 (717) 238-9130 Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS IN CUMBERLAND COUNTY JAMES H. TURBAN Plaintiff vs. No. 04-983 Equity Term VALERIE L. ZEHRING Defendant CIVIL ACTION - EQUITY CERTIFICATE OF SERVICE I, Steven R. Snyder, Esquire, hereby certify that a true and correct copy of the foregoing Praecipe for Default Judgment was served upon th<~ following as addressed below by depositing the same in the United States Mail, first class, postage prepaid, at Harrisburg,PennsylvMlia-onihis -=:;:J:::. day of June, 2004: Valerie Louise Zehring 1349 Kuhn Road, Boiling Springs, Pennsylvania 17007 Jarad W. Handelman, Esquire Attorney for the Defendant 134 Sipe Avenue Hurnmelstown, Pennsylvania 17033 Steven R. Snyder, Esquire Attorney ID Number 90994 3029 North Front Street, Suite 300 Harrisburg, PA 17110 (717) 238-9130 Attorney for Plaintiff IN THE COURT OF COMMON PLEAS IN CUMBERLAND COUNTY JAMES H. TURBAN Plaintiff CIVIL ACTION - EQUITY vs. No. 04-983 EQUITY TERM VALERIE L. ZEHRING Defendant NOTICE TO PLEAD TO: Defendant Valerie L. Zehring and her attorney Jarad W. Handelman, Esquire You are hereby notified to file a written response to the enclosed Response to Defendant's Answer with New Matters and Counterclaim within twenty (20) days from service hereof or a judgment may be entered against you. Date: June 24, 2004 By: Steven R. Snyder, Es ire Attorney for the Plaintiff Attorney ID Number 90994 3029 North Front Street, Suite 300 Harrisburg, P A 1711 0 (717) 238-9130 Steven R. Snyder, Esquire Attorney ID Number 90994 3029 North Front Street, Suite 300 Harrisburg, PA 17110 (717) 238-9130 Attorney for Plaintiff IN THE COURT OF COMMON PLEAS IN CUMBERLAND COUNTY JAMES H. TURBAN Plaintiff CIVIL ACTION - EQUITY vs. No. 04-983 EQUITY TERM VALERIE L. ZEHRING Defendant PLAINTIFF'S RESPONSE TO DEFENDANT'S ANSWER WITH NEW MATTERS AND COUNTERCLAIM AND NOW, comes the Plaintiff, James H. Turban by and through his attorney Steven R. Snyder and responds to Defendant's Answer with New Matters and Counterclaim. In response thereof, Plaintiff avers the following: 1. No response necessary 2. Admitted in part, denied in part. Plaintiff maintains his assertion that the gift of an interest in the residence and property was contingent on their subsequent marriage which never took place. As such, Plaintiffs gift is invalid and Plaintiff does own the property in question. 3. Denied. Plaintiff had full custody of his son, Daniel, and joint custody of his daughter, Ashley. 4. Denied. Plaintiff reasserts his claim that the gift of ,an interest in the residence and property was contingent on a marriage that never took place and as such is invalid. 5. Denied. The Defendant's employment is directly relevant to Plaintiffs Complaint in that it demonstrates Defendant's special training and education which enabled her to take advantage of Plaintiffs emotional state at the time in order to exercise fraud and duress in coercing him to make the contingent gift: of an interest in the Residence and property. Based on the Defendant's professional training and employment, Defendant is held to a higher standard of conduct than a layperson. This standard was not followed in this case. Moreover, Plaintiff avers that Defendant's limited and sporadic employment during the time Defendant lived at Plaintiffs f{~sidence did not enable Defendant to contribute to the mortgage, upkeep and maintenance of the property as Defendant has alleged. 7. Admitted in part, denied in part. While the exact dates that Defendant treated Plaintiffs son are questionable, the fact that Defendant provided professional psychological counseling to Plaintiffs son demonstrates the special training and education which enablied her to take advantage of Plaintiffs emotional state at the time, in order to exercise fraud and duress in coercing Plaintiff to make the contingent gift of an interest in the Residence and property. 8. Denied. By way of further answer, Plaintiff reincorporates his claim in paragraph eight (8) of his Complaint which is incorporated here by reference as if set forth in full, and asserts it as accurate and correct. Moreover, the averment is directly relevant to Plaintiff s Complaint in that it demonstrates the nature of the relationship and Defendant's bad faith, fraud and duress in coercing Plaintiff to make the contingent gift and in Defendant accepting the gift of an interest in the Residence and property. 9. Denied. By way of further answer, the averment contained in paragraph nine (9) of Plaintiffs Complaint are directly relevant as they demonstrate Plaintiffs investment and contribution to his Residence and property. Plaintiff also discussed finances with Defendant on numerous occasional making Defendant well aware of Plaintiffs investment in the property. This is directly relevant to Plaintiffs case. 10. No response necessary to the portion ofthe claim admitted by Defendant. Plaintiff specifically denies the remainder of Defendants response. By way of further answer, extensive damage caused by fire to the residence was rebuilt using the proceeds from a fire and casualty insurance policy. Defendant had limited personal funds and sporadic employment during the time she lived with Plaintiff and could not contribute to the Residence to the extent she alleges. II. Denied. By way of further answer, Plaintiff used approximately $130,000 from two life insurance policies on his deceased wife's life to perform extensive remodeling to the Residence prior to the fire. Defendant did not contribute to the remodeling of the Residence. 12. Denied. By way of further answer, with the exception of one coffee table and one end table and clothing, any additional personal property owned by Defendant at the time of the fire was ether undamaged or was restored and has been removed from the residence by Defendant. 13. Denied. By way of further answer, the only time Defendant contributed any funds which were used to pay the mortgage was on May 29, 2003 in the form of a loan which was subsequently repaid by Plaintiff. Defendant made no direct contribution to the mortgage. The loan is evidenced by a note signed by both parties. A copy of the note with Defendant's subsequent signature indicating that Plaintiff repaid the note is attached to Plaintiffs Complaint as Exhibit A and is incorporated herein by reference as if set forth in full. The fact that Defendant loaned Plaintiff money to pay the mortgage and required Plaintiff to sign said note only goes to demonstrate that Defendant was not contributing to the residence as someone with an ownership interest in the property but was merely lending Plaintiff money so that Plaintiff could pay back mortgage payments on his residence. In addition, the Agreement to transfer an interest in the Property from Plaintiff to both parties as joint tenants clearly refers to the Defendant as "fiancee" demonstrating the parties' intent to marry and that the gift was contingent on the marriage. The Agreement to transfer an interest in the property was attached to Defendant's Answer with New Matters and Counterclaims as Exhibit C and is incorporated herein by reference as if set forth in full. This agreement further states that if the relationship between the parties dissolves that Plaintiff would repay monies expended by Defendant, further demonstrating the jointly held understanding that the gift was contingent on the parties getting married. 14. No response necessary. By way of further response, Plaintiff reasserts that said loan demonstrates that Defendant was not contributing to the residence as someone with an ownership interest in the property but was merely lending Plaintiff money so that he could pay back mortgage payments on his residence. Plaintiff also reasserts that the Agreement to transfer an interest in the property attached to Defendant's Answer with New Matters and Counterclaims states that if the relationship between the parties dissolves that Plaintiff would repay monies expended by Defendant. This agreement further demonstrates the understanding of the parties that the gift was contingent on the parties getting married. 15. Denied as stated. By way of further response see Plaintiffs response to Defendant's answer fourteen (14) supra which is incorporated herein by reference as if set forth in full. 16. Denied as stated. By way of further answer, a copy of the note with Defendant's subsequent signature indicating that Plaintiff repaid the note is attached to Plaintiff s Complaint as Exhibit A and is incorporated herein by reference as if set forth in full. Moreover, Defendant took the title to Plaintiffs Volkswagen and a diamond ring as collateral to guarantee the loan. Both were returned when Plaintiff repaid the loan on July 22, 2003 and the note was signed by the Defendant as paid in full. By way of further response, the furniture sold by Plaintiff belonged to him and was purchased with proceeds from the fire insurance policy that was used to replace his personal property destroyed by the fire. 17 . No response required. 18. No response required. 19. Denied. The amount of income Defendant receiv,ed from the limited business she operated from the residence did not permit her to make significant contributions to the residence and at best would have gone to pay for her personal expenses and contribution for her living at the residence. Defendant made no significant financial contribution to Plaintiff s children. 20. Denied as stated. There were numerous arguments between the parties throughout the tumultuous relationship with blame on the part of both parties. Defendant broke up with plaintiff on several occasions and moved out of the residence. The assertion that Plaintiff was dishonest or unfaithful is fallacious and disingenuous and is an example of the type of arguments that caused these break..ups. 21. Denied. 22. Denied 23. No Response necessary. By way of further answer, Defendant's response demonstrates that Plaintiff had the sole responsibility for the financial obligations of the residence and property. 24. Denied. Plaintiff repeatedly requested that Defendant no longer come to the residence after she moved out. Defendant refused to comply with Plaintiffs request and informed Plaintiff that she had contacted the police department and was informed that Plaintiff could not keep her off the property. On at least one occasion the police were called to the property when Plaintiff requested that she no longer come to the house. The foregoing facts support Plaintiff s contention that the gift was contingent of a marriage that never took place and as such is revocable. 25. No response necessary. By way of further response, Plaintiffs mental health is evidenced by a physical manifestation requiring his hospitalization on several occasIOns. 26. Denied. Plaintiff did not attempt to committee suicide. Defendant was instrumental in having Plaintiff committed to the hospital against his will as evidenced by her written reports which are attached to Plaintiffs Complaint as Exhibit D and is incorporated herein by reference as if set forth in full. 27. Denied. It is specifically denied that Defendant ended the relationship as a result of his being committed to the hospital against his will. In fact the relationship had ended months prior. The furniture Defendant removed from the house after she had Plaintiff committed belonged exclusively to Plaintiff and was paid for with proceeds from the fire and casualty insurance policy for which Plaintiff was the sole beneficiary. 28. Denied. WHEREFORE, Plaintiff prays the Honorable Court grant the relief requested in Plaintiff s Complaint and deny Defendant's request for partition and other relief sought. PLAINTIFF'S RESPONSE TO DEFENDANT'S NEW MATTER 29. Plaintiffs responses to defendants Answer in Paragraphs one (I) through twenty-eight (28) are incorporated herein by reference as if set forth in full. 30. Denied. Plaintiffs Complaint very clearly delineates his contention that the gift of an interest in Plaintiffs residence was made conditioned and contingent on the parties' eventual marriage and when the relationship terminated and no marriage took place, the gift was revocable. Plaintiff has asked the Honorable court for a declaratory judgment supporting Plaintiffs claim that the gift was revocable and an order requesting Defendant's cooperation in conveying the deed to said property back to Plaintiff as sole owner. In the alternative, Plaintiff has asked the Court to detl=ine that the Defendant used her special training and educations to take advantage of Plaintiffs emotional state at the time, as well as the use of fraud and duress to coerce Plaintiff to make the gift of his property to her. Plaintiff has made these averments with clllIity and specificity. In further response, Section 41.83 of Title 49 of the Pennsylvania Code, regulating the practice of Psychology provides as follows: S 41.83. Sexual intimacies with a former client/patient, or an immediate family member of a former client/patient. (a) Sexual intimacies between a psychologist and a former client/patient, or an immediate family member of a former client/patient are prohibited for at least 2 years following the termination of the professional relationship, and then only under very limited circumstances. (b) Following the passage of the 2-year period, psychologists who engage in sexual intimacies with a former client/patient, or an immediate family member of a former client/patient shall have the burden of demonstrating that there has been no exploitation of the client/patient in light of all relevant factors. 49 Pa. Code S 41.83. Since Defendant was responsible for providing psychological counseling to Plaintiffs son during and within two years from the commencement ofthe relationship, Defendant has the burden of showing that her relationships with Plaintiff did not result in the exploitation of Plaintiff. 31. Denied. The Statute of Frauds applies to contracts for the transfer of an interest in land and accompanied by consideration and not gifts. A promise to marry is not legal consideration sufficient to support a contract to convey an interest in land. Additionally, much of Plaintiffs claim is predicated on the actual written documents which are relevant in the case. Averments which rely on evidence not memorialized in the written documents are offered in the nature of explanation of the written documents and do not ask the Court to modify them. Plaintiff contends that the agreement between the parties was the result of unconscionable conduct on Defendant's part including fraud and duress which also renders the Statute of Frauds inapplicable. 32. Denied. The agreement to make a gift was not intended to embody the full and final expression ofthe parties' intent. The writing is not an integration of the entire agreement made by the parties. It was merely a writing demonstrating intent to transfer an interest in Plaintiffs land to Defendant in the event that the partied married at some future date. As such, parol evidence is admissible. The possibility of a future marriage is a condition precedent which mayor may not have occurred and was necessary in order for Defendant's interest in Plaintiff s property to vest. Evidence of the understanding of the parties may be admitted. Much of Plaintiffs claim is predicated on the actual written documents which are relevant in the case. Averments which rely on evidence not memorialized in the written documents are offered in the nature of explanation of the written documents and do not ask the Court to modify them. 33. Denied. Plaintiff made a conditional gift to Defendant in contemplation of mamage. 34. Denied. Plaintiff had every intention of marrying Defendant. Plaintiff assumed Defendant shared his sentiments. Defendant's finarlcial contributions, the value and extent of which are at question were not made as an invllstment but were part of the parties' mutual interest in getting married. Moreover, any expenditures Defendant did make were in consideration for her having a place to live and to operate a business. In addition, Defendant's mother also lived at the residence and paid no rent. Defendant's brother also lived at the residence for a period of time and contributed $300 per month, well under the fair market value for rent. Based on the fair market value of housing and business space, Defendant's contribution was significantly II~SS than what it would have cost her and her family to secure their own living arrangements and for Defendant to secure commercial space to operate a mental health counseling business. 35. Denied. Defendant's own Answer averred that Plaintiff needed to be committed to a mental institution. In the span of several years, Plaintiffs wife died unexpectedly, he was diagnosed with multiple sclerosis, his house burned to the ground and he fell in love with the Defendant who was now threatening to leave him. He was admitted for inpatient mental health treatment on two occasions, had been continuously treated by a psychiatrist and takes various medications to treat mental health difficulties. Taken together all of these factors refute Defendant's claim that Plaintiff had the mental capacity to contract away a partial interest in his home and property. Moreover, all of the foregoing complications were completely known to the Defendant who is a professional mental health councilor and is prohibited by statute from becoming involved in a sexual relationship with the Plaintiff. 36. Denied. By way of further explanation, Plaintiff avers all of his answer to Question Thirty-five (35) which is incorporated herein by reference as if set forth in full. 37. Denied. By way of further explanation, Plaintiff avers all of his answer to Question Thirty-five (35) which is incorporated herein by reference as if set forth in full. 38. Denied. By way of further explanation, Plaintiff avers all of his answer to Question Thirty-four (34) which is incorporated herein by reference as if set forth in full. WHEREFORE, Plaintiff prays the Honorable Court grant the relief requested in Plaintiff s Complaint and deny Defendant's request for partition and other relief sought. PLAINTIFF'S RESPONSE TO DEFENDANT'S COUNTERCLAIM FOR THE PARTITION OF REAL PROPERTY PURSUANT TO Pa.R.C.P 1556 39. Plaintiffs responses in Paragraphs One (I) through Thirty-nine (39) are incorporated herein by reference as if set forth in full. 40. No response necessary 41. No response necessary. 42. No response necessary. 43. No response necessary. 44. No response necessary. 45. Denied as stated. The relationship was sporadic. Defendant broke up with Plaintiff on several occasions and moved out of the residence: in January of 2003 as opposed to June 28, 2003. 46. Denied as stated. Plaintiff agreed to convey a portion of the residence to Defendant in the form of a gift as a condition that they would eventually get married. They never married and therefore, the gift was not valid. 47. Denied as stated. Plaintiff s conveyance of the undivided one-half interest in the property to Defendant was in the form of a gift as a condition of their eventual marriage. The conveyance had nothing to do with, nor did Plaintiff have a long-standing expressed intention to acknowledge and memorialize Defendant's joint ownership in the Residence. 48. Admitted in Part denied in part. The mortgage on the property and residence is in Plaintiffs name only. 49. Admitted in part, denied in part. Defendant terminated the relationship and departed the Residence in January of 2003. 50. No response necessary. 51. Denied as stated. There is no evidence to support the Defendant's claim that Defendant contributed her money, time, and labor improving the property nor is their evidence to support a substantial increase in the value of the Residence due to such claims by Defendant. 52. Denied as stated. There is no evidence to support Defendant's claim that Defendant's claimed contributions to the Residence substantially increased the fair market value of the Residence. 53. Denied as stated. There is no evidence to support Defendant's claim that Defendant's claimed contributions to the Residence substantially increased the fair market value of the Residence. 54. Denied as stated. Defendant departed the Residence in January of2003. 55. Denied as stated. Defendant had no interest in the property and is not entitled to a credit for one-half of the fair rental value of the Residence. 56. Denied as stated. There is no evidence to support Defendant's claim that Defendant expended sums of money towards the mortgage or contributed to the household expenses, maintenance, and bills. 57. Admitted in part, denied in part. Defendant was paid in full on July 22, 2003, as documented by Plaintiffs Complaint as Exhibit A and is incorporated herein by reference as if set forth in full. 58. Denied as stated. Defendant was paid in full on July 22, 2003, and is not entitled to a credit. 59. Denied as stated. Defendant is not entitled to one-.half of the equity in the property nor any claimed credits. Defendant has no ownership or equitable interest in the real property. 60. Denied as stated. The whole of the property described in Exhibit C of Plaintiff s Complaint, and incorporated herein by reference as if set forth in full, cannot and should not be partitioned because Plaintiff is the sole owner ofthe property. WHEREFORE, Plaintiff prays the Honorable Court grant the relief requested in Plaintiff s Complaint and deny Defendant's request for partition and other relief sought. Respectfully submitted, Date: June 24, 2004 By: Stev R. Snyder, Esq . Attorney for the Plainti Attorney ID Number 90994 3029 North Front Street, Suite 300 Harrisburg, P A 17110 (717) 238-9130 VERIFICATION I, James Henry Turban, verify that the statements contained in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements therein are made subject to the penalties of 18 Pa.C.S. S4904, relating to unsworn falsification to authorities. Date: b - 2-~- U;o~ :~#- es H. Turban, Plliintiff IN THE COURT OF COMMON PLEAS IN CUMBERLAND COUNTY JAMES H. TURBAN Plaintiff Civil Action - LAW vs. No. 04-983 EQUITY TERM YOUTH ADVOCATE PROGRAM, INC., VALERIE LOUISE ZEHRING Defendants CIVIL ACTION - AT LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Steven R. Snyder, Esquire, hereby certify that a true and correct copy of the foregoing Complaint was served upon the following as addressed below by depositing the same in the United States Mail, first class, postage prepaid, at Carlisle, Pennsylvania on this 24 day ofJune, 2002: Jarad Handelman, Esquire 134 Sipe Ave Hummelstown, PA 17038 0 ....., 0 C:.:l r.:: C~~ -1'1 .c- .-', C_ --j c: :r -n :'i.: f11 ,-.~ -n ,., 1'" (-;) .,... , L , :~ ; . "T, .. ) -, ~ . -' 'if ,., ~":' , L. (J1 .J N -< ... Steven R. Snyder, Esquire Attorney ID Number 90994 3029 North Front Street, Suite 300 Harrisburg, P A 1711 0 (717) 238-9130 Attorney for Plaintiff IN THE COURT OF COMMON PLEAS IN CUMBERLAND COUNTY JAMES H. TURBAN Plaintiff vs. No. 04-983 Equity Term VALERIE L. ZEHRING Defendants CIVIL ACTION - EQUITY NOTICE TO: Jarad Handelman, Esquire James, Smith, Dietterick & Connelly, LLP 134 Sipe Ave Hurnmelstown, P A 17038 Dear Attorney Handelman: TAKE NOTICE, that the within Motion to Compel Answers to Interrogatories of Plaintiff James H. Turban, propounded to Defendant Valerie L. Zehring, and proposed Order of Court will be presented before the Court on the ?~~/2P day of September, 2004. By:4:~~~ Steven R. Snyder, Esquire Attorney ID Number 90994 3029 North Front Street, Suite 300 Harrisburg, PA 17110 (717) 238-9130 Attorneys for Plaintiff Steven R. Snyder, Esquire Attorney ID Number 90994 3029 North Front Street, Suite 300 Harrisburg, PA 17110 (717) 238-9130 Attorney for Plaintiff IN THE COURT OF COMMON PLEAS IN CUMBERLAND COUNTY JAMES H. TURBAN Plaintiff vs. No. 04-983 Equity Term VALERIE L. ZEHRING Defendants CIVIL ACTION - EQUITY MOTION TO COMPEL ANSWER TO INTERROGATORIES AND NOW, comes the Plaintiff, James H. Turban (hereinafter referred to as "Plaintiff'), by his attorney Steven R. Snyder, Esquire, and moves this Honorable Court to compel the Defendant Valerie L. Zehring (hereinafter referred to as "Defendant") to answer the interrogatories propounded to her by Plaintiff and as reason therefore states: 1. On or about the 10th day of May, 2004, Plaintiff forwarded the attached Interrogatories (Exhibit A) to Defendant. 2. On or about the 9th day of June 2004, Defendant filled the attached answers and objections (Exhibit B) to the aforesaid Interrogatories. 3. Plaintiff, in Interrogatory No.4 asked: "Identify any post-secondary or graduate education received by Defendant, including the area of study or major of the education, any degrees received and any certifications or other specialty training." Defendant failed to answer the interrogatory, but, rather replied: Objection. The requested information is irrelevant to the subject matter involved in the pending litigation. Moreover the request for the information in this Interrogatory is not reasonably calculated to lead to the discovery of admissible evidence. Additionally, the requested information is sought in bad faith and is intended to cause unreasonable annoyance and embar~assment to the Defendant. Accordingly, the requested information is precluded by Pennsylvania Rules of Civil Procedure 4003. I (a) & (b) and 4001(a), (b), and (c). 4. Plaintiff, in Interrogatory No.5 asked: "Identify lmy professionaljicenses or certificates that Defendant currently holds or has held in the past 10 years." Defendant failed to answer the interrogatory, but, rather replied in identical language to that used in its reply to Interrogatory No.4 (Paragraph No.3 hereinabove). 5. Plaintiff, in Interrogatory No.6 asked: "Identify the Defendant's current and previous employers for the past 10 years, the name of the employer, the address, telephone number, dates of employment and the Defendant's position. If self employed for any period, give the dates, location and nature of the self-employment." Defendant failed to answer the interrogatory, but, rather replied in identical language to that used in its reply to Interrogatory No.4 and 5 (Paragraph No.3 hereinabove). 6. Plaintiff, in Interrogatory No.7 asked Defendant Ita, "Attach copies of Defendant's Federal income tax returns for the past 7 years." Defendant failed to answer the interrogatory and attach the requested documents, but, rather replied in identical language to that used in its reply to Interrogatory No.4, 5, and 6 (Paragraph No.3 hereinabove). 7. Plaintiff, in Interrogatory No.8 asked Defendant to, "Attach copies of each of any of Defendant's checking and savings bank statements for the period of time between January 2000 and the present. Also attach or list any retirement accounts or investments including the total amount and value of each account of investment for the same period." Defendant failed to answer the interrogatory and attach the requested documents, but, rather replied in identical language to that used in its reply to Interrogatory No.4 through 7 (Paragraph No.3 hereinabove). 8. Plaintiff, in Interrogatory No.9 asked: "List any payments, from Defendants personal checking, savings or other accounts, for which Defi~ndant alleges she purchased or paid for property, services or repairs for the residence at One Cedar Cliff Drive, Camp Hill, Pennsylvania. List each amount, the purpose of the expenditure, the date the expenditure was made, how it was paid for and the source of the funds used." Defendant failed to answer the interrogatory and supply the requested information, but, rather replied: The information necessary to answer this Interrogatory is in the possession of Plaintiff and Plaintiff has refused to return receipts evidencing purchases or payments that are covered by this Interrogatory. Plaintiff has enumerated costs, payments and amounts which she has paid for servic(~s, payments and repairs, etc... in her Answer with New Matters and Countercl!aim, the averments of which are incorporated herein by reference as if set forth in full. To the extent not in Plaintiffs possession, Defendant is in the process of accumulating the information necessary to answer this Interrogatory, however at present, Defendant is not in possession of the information and documentation necessary to answer this Interrogatory. Accordingly, Defendant reserves the right to supplement this response and will so supplement this response once she is able. 9. Plaintiff, in Interrogatory No. 10 asked DefendllIlt to, "Attach copies of Defendant's credit card billing statements and revolving charge cards for the period of time between January 2000 and the present." Defendant fa:iled to answer the interrogatory and attach the requested documents, but, rather replied in identical language to that used in its reply to Interrogatory No.4 through 9 (Paragraph No.3 hereinabove). Defendant further replied: Notwithstanding the forgoing objection, credit card statements evidencing charges for which Defendant seeks credit in the partition action or otherwise to evidence her contributions, payment, and/or purchase toward or for items in the jointly owned property will be provided. Such statements have been requested, however, Defendant is currently not in possession of the requested information. Defendant will provide all relevant credit card statements for credit cards issued by JC Penny, Boscovs, Visa and MasterCard once obtained. Defendant reserves the right to supplement this response. 10. Plaintiff, in Interrogatory No. II asked: "For any credit card or revolving charge card accounts for which Defendant alleges she purchased or paid for property, services or repairs for the residence at One Cedar Cliff Drive, Camp Hill, Pennsylvania, list each amount, the purpose of the expenditure, the date the expenditure was made, how it was paid for and the source of the funds used." Defendant failed to answer the interrogatory and attach the requested documents, but, rather replied that the requested information was not currently in Defendant's possession and would be provided once obtained. 11. Plaintiff, in Interrogatory No. 12 asked: "Identif)r any funds given to Defendant by Plaintiff, including the amount, and the SOurCI: of those funds such personal funds, monies received from the homeowner fire and casualty insurance company, as a result of the fire at One Cedar Cliff Drive, Camp Hill, Pennsylvania, or other funds in defendant's possession. For each itemized amount, list (1) the amount of the funds, (2) the source of the funds, (3) the reason Plaintiff gave these funds to Defendant, (4) where the funds were deposited, and (5) what the funds were used for." Defendant failed to answer the interrogatory and attach the requested information, but, rather replied that the requested information was either in Plaintiff s possession or was not currently in Defendant's possession and would be provided once obtained. This information has not been supplied to date. 12. Plaintiff, in Interrogatory No. 13 asked: "Provide a list of any personal property Defendant claims she purchased when she lived with Plaintiff at One Cedar Cliff Drive, Camp Hill, Pennsylvania, Cumberland County, 117011 which was contributed to the household. For each item, (1) attach receipts, (2) identify the price paid for the item, (3) how it was paid for and (4) the source of the funds (where the Defendant obtained the funds) used by Defendant to pay for the property. (Attach copies of receipts and additional pages for your answer if needed). Also for each item, indicate where the personal property is now and in whose possession the propeI1:y is in." Defendant failed to answer the interrogatory and attach the requested information, but, rather replied that the requested information was either in Plaintiffs possession or was not currently in Defendant's possession and would be provided once obtained. This information has not been supplied to date. 13. Plaintiff, in Interrogatory No. 16 asked: "Identify and attach copies of any contracts that Defendant entered into with Plaintiff which are signed by Plaintiff or any verbal contracts between Plaintiff and Defendant, where Plaintiff agreed to pay an amount, in consideration for work performed to the residence by Plaintiff or any other party to the contract that Defendant is aware of. Identify thl: name, address and telephone number of any parties to said contracts. If no such written or verbal contracts exist, indicate none." Defendant failed to answer the interrogatory and attach the requested information, but, rather replied that the requested information was either in Plaintiffs possession, attached to Defendants Answer or would be supplied latter. Defendant also failed to specify what contracts or documents are in Plaintiffs possession. 14. Plaintiff, in Interrogatory No. 17 asked: "Identi~v any household expenses, the amount and date of payment, including mortgage payments" utilities, and similar expenditures associated with the residence at One Cedar Cliff Drive, Camp Hill, Pennsylvania for which Defendant paid with her personal nmds. Identify the funds that Defendant used of her own, not including money obtained by fire insurance or given to Defendant by Plaintiff, and the source of those funds." Defendant failed to answer the interrogatory and supply the requested information, but, rather replied that the requested information was attached to Defendants Answer or would b<~ supplied latter. Defendant has failed to specify the requested information in the format and detail requested. 15. Plaintiff, in Interrogatory No. 19 asked: "IdentifY any expenses associated with the residence at One Cedar Cliff Drive, Camp Hill, Pennsylvania, including mortgage payment, utilities, maintenance, upkeep, taxes, and related expenses that Defendant continued to pay with her personal funds after moving out of the residence. Identify the funds that Defendant uses of her own, not including money obtained by fire insurance or given to Defendant by Plaintiff, and the source of those funds. Indicate whether Defendant continues to pay said expenses at present. Also indicate whether Defendant paid said expenses in the form of a loan which was subsequently repaid by Plaintiff." Defendant failed to answer the interrogatory and attach the requested information, but, rather replied that the requested information was either in Plaintiff s possession or was not currently in Defendant's possession and would be provided once obtained. This information has not been supplied to date. 16. Plaintiff, in Interrogatory No. 20 asked: "Identify any expenses for maintenance, remodeling, restoration, or construction, associated with the residence at One Cedar Cliff Drive, Camp Hill, Pennsylvania for which Defendant paid with her personal funds. Identify the funds that Defendant used of her own, whether the money obtained by fire insurance or given to Defendant by Plaintiff, and the source of those funds. Also indicate whether Defendant paid said expenses in the form of a loan which was subsequently repaid by Plaintiff." Defendant failed to answer the interrogatory and attach the requested information, but, rather replied that the requested information was either in Plaintiff s possession or was not currently in Defendant's possession and would be provided once obtained. This information has not been supplied to date. 17. Plaintiff, in Interrogatory No. 21 asked: "Identily any funds given to Defendant by Plaintiff to be deposited into Defendants personal bank account, the source of the funds, the reason Plaintiff gave said funds to Defendant and what the funds were used for." Defendant failed to answer the interrogatory and attach the requested information, but, rather replied that the requested information was not currently in Defendant's possession and would be provided once obtained. This information has not been supplied to date. 18. Plaintiff, in Interrogatory No. 22 asked: "Identify any expenses for the purchase of personal property, furnishings, fixtures, appliances or related items, associated with the residence at One Cedar Cliff Drive, Camp Hill, Pennsylvania for which Defendant paid with her personal funds. Identify the funds that Defendant used of her own, including money obtained by fire insurance or giv,en to Defendant by Plaintiff, and the source of those funds. Also indicate whether Defendant paid said expenses in the form of a loan which was subsequently repaid by Plaintiff." Defendant failed to answer the interrogatory and attach the requested information, but, rather replied that the requested information was either in Plaintiffs possession or was not currently in Defendant's possession and would be provided once obtained. This information has not been supplied to date. 19. Plaintiff, in Interrogatory No. 23 asked: "Did Defendant ever operate a business located in the residence at One Cedar Cliff Drive, Camp Hill, Pennsylvania? If so, indicate (I) the type of business, (2) the dates when the business was in operation, (3) whether the business continued to be operated when Defendant moved out of the house, (4) whether members ofthe public came to the residence, how often, etc." Defendant failed to answer the interrogatory and attach the requested documents, but, rather replied in identical language to that used in its reply to Interrogatory No.4 through 8 (Paragraph No.3 hereinabove). This information is extremely relevant ~Uld admissible as it relates to the subject matter of the pending litigation. 20. Plaintiff, in Interrogatory No. 24 asked: "If Defendant operated a business from the house, what was the income from the business on a weekly basis and what was the annual income for any year that the business was in operation? Attach copies of business records indication the income received from the operation of the business, particularly if said income was not included in Defendant's income tax for the years provided in Question 7." Defendant failed to answer the intlTfogatory and attach the requested documents, but, rather replied in identical language to that used in its reply to Interrogatory No.4 through 8 and No. 23 (Paragraph No.3 hereinabove). This information is extremely relevant and admissible as it relates to the subject matter of the pending litigation. 21. Plaintiff, in Interrogatory No. 25 asked: "Did Def~ndant ever contribute to the household mortgage or other expenses or reimburse Plaintiff for the use of the residence at One Cedar Cliff Drive, Camp Hill, Pennsylvania as a business, ether while she lived at the residence or after she moved out of the residence? If so give (1) an itemized list of monies paid, (2) the amount, (3) what the funds were used for, (4) the date of payment, and (5) the source of the funds paid by Defendant." Defendant failed to answer the interrogatory in the specificity requested and once again reserved the right to amend its response. No further information has been supplied to date.. 22. The answers to these Interrogatories are relevant to the subject matter involved in the pending litigation. Moreover the request for the information in this Interrogatory is reasonably calculated to lead to the discovl:ry of admissible evidence. Additionally, the requested information is sought in good firith and is not intended to cause unreasonable annoyance and embarrassment to the Defendant. Accordingly, the requested information is not precluded by Pennsylvania Rules of Civil Procedure 4003.1 (a) & (b) and 400l(a), (b), and (c). As such the answers will substantially aid in the trial of the case. 23. The answers to these Interrogatories will SubstllIltially aid the Court in the orderly disposition ofthis litigation. 24. The objections raised by Defendant are frivolous and without merit. 25. Defendant has failed to obtain and provide supplemental information which was not in Defendant's possession at the time it answered the Interrogatories as stated in numerous responses to these interrogatories WHEREFORE, Plaintiff, James H. Turban requests that this Honorable Court dismiss the raised objections and order the Defendant, Valerie L. Zehring to supply full and complete answers to all of the Interrogatories propound,~d by Plaintiff in a prompt fashion. Where Defendant has reserved the right to supplement its response by providing the information requested, Plaintiff requests this Honorable Court order the Defendant, Valerie L. Zehring to supply full and complete answers to all of the Interrogatories with the requested specificity as propounded by Plaintiff in a prompt fashion. Respectfully submitted, By: Steven R. Snyde Esquire Attomey for the Plaintiff Attorney ID Number 90994 3029 North Front Street, Suite 300 Harrisburg, P A 17110 (717) 238-9130 ORDER OF THE COURT AND NOW, to wit, this day of , 2004, upon Motion of Plaintiff, James H. Turban the objections raised by Defendant, Valerie L. Zehring, are overruled and Defendant is ordered to file answers to all of the Interrogatories propounded by said Plaintiff and to supply the supplemental information as indicated in Defendant's Answer to Plaintiffs Interrogatories, with the specificity requested by said Plaintiff, within twenty (20) days hereof Upon failure to answer said Interrogatories within twenty (20) days hereof, the Court may impose sanctions against the Defendant Valerie L. Zehring. BY THE COURT: Judge CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Notice and within Motion to Compel Answer to Interrogatories and proposed Order of the Court was served by depositing the same in the United States Mail" First Class, at Harrisburg, Pennsylvania, on the2?J~ of September, 2004, addressed as follows: Jarad W. Handelman, Esquire James Smith Dietterick & Connelly LLP 134 Sipe Avenue Hershey, P A 17033 Attorney for Defendant Valerie Zehring Date: ja>r; 1- ? ,2004 ~~::: :5:n~ESquire Attorney ID Number 90994 3029 North Front Street, Suite 300 Harrisburg, PA 17110 (717) 238-9130 Attorney for Plaintiff EXHIBIT A Steven R. Snyder, Esquire Attorney ID Number 90994 3029 North Front Street, Suite 300 Harrisburg, PA 17110 (717) 238-9130 Attorney for Plaintiff IN THE COURT OF COMMON PLEAS IN CUMBERLAND COUNTY JAMES H. TURBAN Plaintiff Civil Action - EQUITY vs. No. 04 - 983 VALERIE L. ZEHRING Defendant JURY TRIAL DEMANDED PLAINTIFF'S FIRST SET OF INTERROGATORIES TO DEFENDANT Plaintiff, James H. Turban, by his undersigned attorneys, serves on Defendant, Valerie L. Zehring, the following Interrogatories, to be ,mswered in writing under oath, pursuant to the Pennsylvania Rules of Civil Procedure within thirty (30) days from the date of service hereof. 1. Definitions and Instructions Please note that the following definitions and instructions shall apply and shall be considered an integral part of these interrogatories: A. "Plaintiff", shall mean Plaintiff James Henry Turban or any person acting on behalf of James Henry Turban. B. "Defendant", "you" and/or "yours" shall mean Valerie Louise Zehring or any employee, agent, servant, representative, or any other person acting on behalf of Valerie Louise Zehring. C. "Document" shall mean all written or graphic matter of every kind or description, however produced or reproduced, whether drafted or final, original or reproduction, signed or unsigned, and regardless of whether approved, signed, sent, received, redrafted, or executed, including but not limited to: written communications, letters, correspondence, memoranda, minutes, notes, photographs, slides, motion pictures, telegrams, telex messages, tape or sound recordings, recordings of any type, contracts, agreements, purchase or sale orders, memoranda of telephone conversations or personal conversations, diaries, desk calendars, interoffice communications, reports, studies, bills, receipts, logs, checks, checkbooks, invoices, requisitions, personal expense accounts, federal, state, and local tax returns, or material similar to any of the foregoing; however denominated and by whomever prepared and to whomever addressed which are in your possession, custody or control or to which you have had, or can obtain access. "Document" shall not include exact duplicates when originals are available but shall include all copies made different from originals by virtue of any writing or notation thereon. D. "Identify" shall mean, when used in reference to: I. A natural person-to state the person's: (a) full name; (b) present or last known business and residential addresses; (c) present or last known position, business affiliation and job description; and (d) position, business affiliation, and job description at the time in question with respect to the interrogatory or other request involved. 2. A document-to state the following with respect to the document: (a) its description (e.g., letter, mmnorandum, report, etc.); (b) its title, date and number of pages; (c) its subject matter; (d) the name, address, and position of the author(s) or signer(s) thereof; (e) the name, address and position of the addressee(s); (f) the name, address and position of each person who received a copy of the documents; and (g) its present location and the name, address, and position of the person having present possession, custody and/or control thereof. 3. An oral communication-to state the following with respect to communication: (a) the date and place where it occurred; (b) its substance; (c) the name, address and position of each person to whom such communication was made; and (d) the name, address and position of each person to whom such communication was made; and (e) the name, address and position of each person who was present when such communication was made. 4. A company, corporation, association, partnership or other legal or business entity not a natural person-to state its: (a) full name; (b) address of principal place of business; and (c) description of type of entity. 5. An act, occurrence, or specific conduct (hereinafter referred to collectively as "act"): (a) describe the substance of the event or events constituting such act; (b) state the date when such act occurred; (c) identify each person who palticipated in such act; (d) identify all other persons who were present when such act occurred; and (e) state whether any document was made recording such act and if so, identify each such document. E. "Communication" shall mean any transmission of thoughts, opinions or information by speech, writing or signs. F. "Person" shall include natural persons, partnerships, associations, corporations, leagues, governments, (including all instrumentalities, officers, agents and subdivisions thereo(1 and all other business, legal and artificial entities. G. In answering these interrogatories, you are required to furnish all information which is available to you, whether currently in your possession or not, including that which has been obtained by and that which is now in the possession of your attomeys, employees, agents and other representatives, and not merely the information known by the individual or individuals preparing the response. H. If you are unable to answer any of the within interrogatories fully and completely, after exercising due diligenc'~ to secure the information necessary to make such full and complete answers, so state, and in addition, answer the remainder, and state whatever information or knowledge you may have concerning the unanswered portions thereof. 1. Insert your answers in the spaces provided, attaching additional pages as required for complete answers, identifying the interrogatory being answered, and attach and affidavit hereto, filing the original hereof with the Court and serving a copy on the undersigned counsel. J. These interrogatories shall be deemed to be continuing so as to require supplemental answers under oath if you obtain additional or further information pertaining to any interrogatory subsequent to the time an answer to that interrogatory is served. K. If you file an objection to any of the inten'ogatories propounded herein, you are nevertheless required to answer within the aforesaid thirty (30) day period the interrogatories not objected to. L. Whenever any interrogatory calls for the identity of a document or communication as to which you claim privilege, include in the identification of such document or commmllcation the fact of such claim of privilege and the basis asserted for such claim. M. In lieu of identifying documents, you may supply the documents, or true and correct copies thereof, with your answers to these interrogatories. The documents should be segregated or otherwise identified to reflect the number of the interrogatory or interrogatories to which the document is responsive. N. With respect to each interrogatory, in addition to supplying the information asked for and identifying the specific documents referred to, identify all documents which were refen'ed to in preparing your answer thereof. O. Unless the context otherwise requires, words in the singular include the plural and words in the plural include the singular; words of the neuter include the feminine and the masculine. II. Continuing Request These interrogatories are to be deemed continuing in nature. Supplementary answers are hereby requested in the event the Defendant subsequently obtains or becomes aware of the existence of additional or different information than that contained in answers filed in response to these interrogatories. III. Interrogatories I. Identify the full name, current address and telephone number of the Defendant and the date Defendant moved into the current residence. Also Identify Defendant previous address( s) other than the current address or Plaintiff s address for the past 7 years, and dates for which Defendant lived at previous addresses. Name: Current Address: Dates at Current address - From Present to Previous address(s): Dates at this address - From to Previous address(s): Dates at this address - From to 2. Identify the name and current address (if different) of any person who currently lives with Defendant or has lived with Defendant in the past three (3) years and the nature of the relationship, whether family member, landlord, co-tenant, co-owner, spouse or other relationship with Defendant. Name Relationship Address! Telephone Number Name Relationship Address! Telephone Number Name Relationship Address! Telephone Number Name Relationship Address! Telephone Number 3. IdentifY the name and current address and telephone number for any person with whom Defendant has been involved romantically, or involved in a sexual relationship within the last three (3) years. Name Address Telephone Number Name Address Telephone Number 4. Identify any post-secondary or graduate education received by Defendant, including the area of study or major of the education, any degrees received and any certifications or other specialty training. 5. Identify any professional licenses or certificates that Defendant currently holds or has held in the past 10 years. 6. Identify the Defendant's current and previous employers for the past 10 years, the name of the employer, the address, telephone number, dates of employment and the Defendant's position. If self employed for any period, give the dates, location and nature of the self-employment Current Employer or Employment: Position: Address: Telephone: Dates Previous Employer Position Address: Telephone: Dates Previous Employer Position Address: Telephone: Dates Self Employment Position Address: Telephone: Dates Self-Employment Dates Address: Telephone: Dates 7. Attach copies of Defendant's Federal income tax returns for the past 7 years. 8. Attach copies of each of any of Defendant's checking and savings bank statements for the period of time between January 2000 and the present. Also attach or list any retirement accounts or investments including the total amount and value of each account of investment for the same period. 9. List any payments, from Defendants personal checking, savings or other accounts, for which Defendant alleges she purchased or paid for property, services or repairs for the residence at One Cedar Cliff Drive, Camp Hill, Pennsylvania. List each amount, the purpose of the expenditure, the date the expendihlfe was made, how it was paid for and the source of the funds used. 10. Attach copies of Defendant's credit card billing statements and revolving charge cards for the period oftime between January 2000 ,md the present. II. For any credit card or revolving charge card accounts for which Defendant alleges she purchased or paid for property, services or repairs for the residence at One Cedar Cliff Drive, Camp Hill, Pennsylvania, list each amount, the purpose of the expenditure, the date the expenditure was made, how it was paid for and the source of the funds used. 12. Identify any funds given to Defendant by Plaintiff, including the amount, and the source of those funds such personal funds, monies received from the homeowner fire and casualty insurance company, as a result of the flre at One Cedar Cliff Drive, Camp Hill, Pennsylvania, or other funds in defendant's possession. For each itemized amount, list (I) the amount of the funds, (2) the source of the funds, (3) the reason Plaintiff gave these funds to Defendant, (4) where the funds were deposited, and (5) what the funds were used for. 13. Provide a list of any personal property Defendant claims she purchased when she lived with Plaintiff at One Cedar Cliff Drive, Camp Hill, Pennsylvania, Cumberland County, 17011 which was contributed to the household. For each item, (I) attach receipts, (2) identify the price paid for the item, (3) how it was paid for and (4) the source of the funds (where the Defendant obtained the funds) used by Defendant to pay for the property. (Attach copies of receipts and additional pages for your answer if needed). Also for each item, indicate where the pl~sonal property is now and in whose possession the property is in. 14. List any personal property Defendant owned when she moved in with Plaintiff and whether the property is in Plaintiffs possession now or whether Defendant has said property. 15. List any of Defendants personal property identified in question 14 which was either destroyed or damaged by fire, and whether the property was restored or replaced. If the property was destroyed, indicate whether the property was replaced and the source of funds used to replace said property. Also indicate who has possession of said property now. 16. Identify and attach copies of any contracts that Deflmdant entered into with Plaintiff which are signed by Plaintiff or any verbal contracts between Plaintiff and Defendant, where Plaintiff agreed to pay an amount, in consideration for work performed to the residence by Plaintiff or any other party to the contract that Defendant is aware of. Identify the name, address and telephone number of any parties to said contracts. If no such written or verbal contracts exist, indicate none. 17. Identify any household expenses, the amount and date of payment, including mortgage payments, utilities, and similar expenditures associated with the residence at One Cedar Cliff Drive, Camp Hill, Pennsylvania for which Defendant paid with her personal funds. Identify the funds that Defendant used of her own, not including money obtained by fire insurance or given to Defendant by Plaintiff, and the source of those funds. 18. Also, based on your answer from question 17, indicate whether Defendant paid said expenses in the form of a loan which was subsequently repaid by Plaintiff and the source of the original funds paid by Defendant. If a loan was made, attach copies of any loan agreements and indicate whether said loans were satisfied. 19. Identify any expenses associated with the residence at One Cedar Cliff Drive, Camp Hill, Pennsylvania, including mortgage payment, utilities, maintenance, upkeep, taxes, and related expenses that Defendant continued to pay with her personal funds after moving out of the residence. Identify the funds that Defendant uses of her own, not including money obtained by fire insurance or given to Defendant by Plaintiff, and the source of those funds. Indicate whether Defi~ndant continues to pay said expenses at present. Also indicate whether Defendant paid said expenses in the form of a loan which was subsequently repaid by Plaintiff 20. Identify any expenses for maintenance, remodeling, restoration, or construction, associated with the residence at One Cedar Cliff Drive, Camp Hill, Pennsylvania for which Defendant paid with her personal funds. Identify the funds that Defendant used of her own, whether the money obtained by fire insurance or given to Defendant by Plaintiff, and the source of those funds. Also indicate whether Defendant paid said expenses in the form of a loan which was subsequently repaid by Plaintiff 21. Identify any funds given to Defendant by Plaintiff to be deposited into Defendants personal bank account, the source of the funds, the reason Plaintiff gave said funds to Defendant and what the funds were used for. 22. Identify any expenses for the purchase of personal property, furnishings, fixtures, appliances or related items, associated with the residence at One Cedar Cliff Drive, Camp Hill, Pennsylvania for which Defendant paid with her personal funds. Identify the funds that Defendant used of her own, including money obtained by fire insurance or given to Defendant by Plaintiff, and the source ofthose funds. Also indicate whether Defendant paid said expenses in the form of a loan which was subsequently repaid by Plaintiff. 23. Did Defendant ever operate a business located in th<~ residence at One Cedar Cliff Drive, Camp Hill, Pennsylvania? If so, indicate (1) the type of business, (2) the dates when the business was in operation, (3) whether the business continued to be operated when Defendant moved out of the house, (4) whether members of the public came to the residence, how often, etc. 24. If Defendant operated a business from the house, what was the income from the business on a weekly basis and what was the annual income for any year that the business was in operation? Attach copies of business records indication the income received from the operation of the business, particularly if said income was not included in Defendant's income tax for the years provided in Question 7. 25. Did Defendant ever contribute to the household mortgage or other expenses or reimburse Plaintiff for the use ofthe residence at One Cedar Cliff Drive, Camp Hill, Pennsylvania as a business, ether while she lived at the residence or after she moved out of the residence? If so give (I) an itemized list of monies paid, (2) the amount, (3) what the funds were used for, (4) the date of payment, and (5) the source of the funds paid by Defendant. 26. How did Defendant first come to know Plaintiff? Give the nature of the original acquaintance, the relationship, and the events that brought them together. 27. At the time Defendant first met Plaintiff, was there any professional relationship between them, and if so what was the nature of the relationship. 28. If there was a professional relationship between Defendant and Plaintiff as detailed in Question 27, on what date (approximately) did that professional relationship begin and end? 29. On approximately what date did Defendant become romantically and sexually involved with Plaintiff? 30. On what date did Defendant move into Plaintiffs residence? 31. Were Defendant and Plaintiff ever engaged to be married? If so on what date did the engagement begin? 32. On what date did Defendant have a deed prepared to transfer an interest in Plaintiffs house to her? Give details as to the reason for the tr:msfer, the date of the agreement, who initiated the agreement, when the agreement was formalized, when and what attorney prepared the transfer. Attach copies of any and all documentation, including gift letters, deeds, correspondence, etc. evidencing the transaction. 33. On what date did Defendant record the deed to transfer an interest in Plaintiffs house to her? Attach copies of any documentation associated with the recording of the deed. 34. If Defendant and Plaintiff were engaged to be marril~d, on what date did the engagement terminate. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was served by depositing the same in the United States Mail, Certified, postage prepaid, at Harrisburg, Pennsylvania, on the 10th day of May, 2004, addressed as follows: J arad W. Handelman, Esquire James Smith Dietterick & Connelly LLP 134 Sipe Avenue Hershey, PA 17033 Attorney for Defendant Valerie Zehring Date: May, 10,2004 ---" Steven R. Sn er, Esquire Attorney ID Number 90994 3029 North Front Street, Suite 300 Harrisburg, PAl 711 0 (717) 238-9130 Attorney for Plaintiff EXHIBIT B JAMES H. TURBAN, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA - NO. 04-983 EQUITY TERM v. VALERIE L. ZEHRING Defendant CNIL ACTION - EQUITY (P ARTlTION) DEFENDANT'S ANSWERS TO PLAINTIFF'S INT]~RROGATORIES 1. Identify the full name, current address and telephone number of the Defendant and the date Defendant moved into the current residence. Also identify Defendant previous address( s) other than the current address or Plaintiff's address for the past 7 years, and dates for which Defendant lived at previous addresses. Name: ValerIe L. Zehring Current Address: 1349 Kuhn Road, Boiling Springs, PA 17007 Dates at Current address - From February 2003 to Present Previous addresses): 1 Cedar Cliff Drive, Camp Hill, P A Dates at this address - From November 2000 to February 2003 Previous addresses): 18 South Front Street, Wormleysburg, PA Dates at this address - From July 1999 to November 2000 Objection. Defendant's address for the past seven (7) years is irrelevant to the subject matter involved in the pending litigation. Moreover, the request for nefendant's address for the past seven (7) years is not reasonably calculated to lead to the discovery of admissible evidence. Accordingly, the requested information, beyond that is what is provided above, is precluded by Pennsylvania Rules of Civil Procedure 4003.1(a) & (b), and 4001(c). 2. Identify the name and current address (if different) of any person who currently lives with Defendant or has lived with Defendant in the past three (3) years and the nature of the relationship, whether family member, landlord, co-tenant, co-owner, spouse or other relationship with Defendant. Name Plaintiff Relationship Boyfriend/fiancee Address/ Telephone Number 1 Cedar Cliff Drive, Camp Hill, PA Name Plaintifrs Children Relationship Caregiver Address/Telephone Number 1 Cedar Cliff Drive, Camp Hill" PA Name Tony Fantasia Relationship Mlltnal Friend of Plaintiff Address/ Telephone Number Unknown Name Frederick and Vickie Zehring Relationship Brother and Sister-In-Law Address/ Telephone Number Cnrrent Address of Defendant Name Janette Zehring Relationship Mother Address/ Telephone Number Cnrrent Address of Defendant Objection. The requested information is irrelevant to the subjject matter involved in the pending litigation. Moreover, the request for the information in this Interrogatory is not reasonably calculated to lead to the discovery of admissible evidence. Accordingly, the requested information, heyond that is what is provided above, is precluded by Pennsylvania Rules of Civil Procedure 4003.1(a) & (b), and 4001(c). 3. IdentifY the name and current address and telephone number for any person with whom Defendant has been involved romantically, or involved in a sexual relationship within the last three (3) years. Name Address Telephone Number Name Address Telephone Number Objection. The requested information is irrelevant to the subject matter involved in the pending litigation. Moreover, the request for the information in this Interrogatory is not reasonably calculated to lead to the discovery of admissible evidence. Additionally, the requested information is sought in bad faith and is intended to cause unreasonable annoyance and embarrassment to the Defendant. Accordingly, the requested information is precluded by Pennsylvania Rules of Civil Procedure 4003.1(a) & (b), and 4001(a), (b) & (c). 4. Identify any post-secondary or graduate education received by Defendant, including the area of study or major of the education, any degrees received and any celtifications or other specialty training. Objection. The requested information is irrelevant to the subject matter involved iu the pending litigation. Moreover, the request for the information in this Interrogatory is not reasonably calculated to lead to the discovery of admissible evidence. Additionally, the requested information is sought in bad faith and is intended to cause unreasonable annoyance and embarrassment to the Defendant. Accordingly, the requested information is precluded by Pennsylvania Rules of Civil Procedure 4003.1(a) & (b), and 4001(a), (b) & (c). 5. Identify any professional licenses or certificates that Defendant currently holds or has held in the past 10 years. Objection. The requested information is irrelevant to the subject matter involved in the pending litigation. Moreover, the request for the information in this Interrogatory is not reasonably calculated to lead to the discovery of admissible evidence. Additionally, the requested information is sought in bad faith and is intended to cause unreasonable annoyance and embarrassment to the Defendant. Accordingly, the requested information is precluded by Pennsylvania Rules of Civil Procedure 4003.1(a) & (b), and 4001(a), (b) & (c). 6. Identify the Defendant's current and previous employers for the past 10 years, the name of the employer, the address, telephone number, dates of employment and the Defendant's position. If self employed for any period, give the dates, location and nature of the self-employment Current Employer or Employment: Position: Address: Telephone: Dates Previous Employer Position Address: Telephone: Dates Objection. The requested information is irrelevant to the subject matter involved in the pending litigation. Moreover, the request for the information in this Interrogatory is not reasonably calculated to lead to the discovery of admissible evidence. Additionally, the requested information is sought in bad faith and is intended to cause unreasonable annoyance and embarrassment to the Defendant. Accordingly, the requested information is precluded by Pennsylvania Rules of Civil Procedure 4003.1(a) & (b), and 4001(a), (b) & (c). 7. Attach copies of Defendant's Federal income tax returns for the past 7 years. Objection. The requested information is irrelevant to the subjject matter involved in the pending litigation. Moreover, the request for the information in this Interrogatory is not reasonably calculated to lead to the discovery of admissible evidence. Additionally, the requested information is sought in bad faith and is intended to cause unreasonable annoyance and burden to the Defendant. Accordingly, the requested information is precluded by Pennsylvania Rules of Civil Procedure 4003.1(a) & (b), and 4001(a), (b) & (c). 8. Attach copies of each of any of Defendant's checking and savings bank statements for the period of time between January 2000 and the present. Also attach or list any retirement accounts or investments including the total amount and value of each account of investment for the same period. Objection. The requested information is irrelevant to the subj,cct matter involved in the pending litigation. Moreover, the request for the information iin this Interrogatory is not reasonably calculated to lead to the discovery of admissible evidence. Additionally, the requested information is sought in bad faith and is intended to cause unreasonable annoyance and embarrassment to the Defendant. Accordingly, the requested information is precluded by Pennsylvania Rules of Civil Procedure 4003.1(a) & (b), and 4001(a), (b) & (c). 9. List any payments, from Defendants personal checking, savings or other accounts, for which Defendant alleges she purchased or paid for property, services or repairs for the residence at One Cedar Cliff Drive, Camp Hill, Pennsylvania. List each amount, the purpose of the expenditure, the date the expenditure was made, how it was paid for and the source of the funds used. The information necessary to answer this Interrogatory is in the possession of Plaintiff and Plaintiff has refused to return receipts evidencing purchases or payments that are covered by this Interrogatory. Defendant has enumerated costs, payments, and amounts which she has paid for property, services, maintenance, repairs, etc... in her Answer With New Matter and Counterclaim, the averments of which are incorporated herein by reference as if set forth in full. To the extent not in Plaintiff's possessiou, Defendant is in the process of accumulating the information necessary to answer this Interrogatory, however, at present Defendant is not in possession of the information and documentation necessary to answer this Interrogatory. Accordingly, Defendant reserves the right to supplement this response and will so supplement this response once she is able. 10. Attach copies of Defendant's credit card billing statements and revolving charge cards for the period of time between January 2000 and the present. Objection. The requested information as requested is irrelevant to the subject matter involved in the pending litigation. Moreover, the reqnest for the information in this Interrogatory is not reasonably calculated to lead to the discovery of admissible evidence as requested. Additionally, the requested information is overly broad, sought in bad faith and is intended to cause unreasonable annoyance and burden to the Defendant. Accordingly, the requested information is precluded by Pennsylvania Rules of Civil Procedure 4003.1(a) & (b), and 4001(a), (b) & (c). Notwithstanding the foregoing objection, credit card statements evidencing charges for which Defendant seeks credit in the partition action or otherwise to evidence her contributions, payment, and/or purchase towards or for items in the jointly owned property will be provided. Such statements have been requested, however, Defendant is currently not in possession of the requested information. Defendant will provide all relevant credit card statements from credit cards issued by JC Penny, Boscovs, Visa, and Mastercard once obtained. Defendant reserves the right to sU]Jplement this response 11. For any credit card or revolving charge card accounts for which Defendant alleges she purchased or paid for property, services or repairs for the residence at One Cedar Cliff Drive, Camp Hill, Pennsylvania, list each amount, the purpose of the I:xpenditure, the date the expenditure was made, how it was paid for and the source of the funds used. Credit card statements evidencing charges for which Defendant seeks credit in the partition action or otherwise to evidence her contributions, payment, and/or purchase towards or for items in the jointly owned property will be provided. Such statements have been requested, however, Defendant is currently not in possession of the requested information. Defendant will provide all relevant credit card statements from credit cards issued by JC Penny, Boscovs, Visa, and Mastercard once obtained. Defendant reserves the right to supplement this response. 12. Identify any funds given to Defendant by Plaintiff, including the amount, and the source of those funds such personal funds, monies received from the homeowner fire and casualty insurance company, as a result of the fire at One Cedar Cliff Drive, Camp Hill, Pennsylvania, or other funds in defendant's possession. For each itemized amount, list (I) the amount of the funds, (2) the source of the funds, (3) the reason Plaintiff gave these funds to Defendant, (4) where the funds were deposited, and (5) what the funds were used for. The information necessary to answer this Interrogatory is in the possession of Plaintiff and Plaintiff has refused to return receipts evidencing purchases Olr payments that are covered by this Interrogatory. Defendant has enumerated costs, payments, and amounts which she has paid for property, services, maintenance, repairs, etc... in her Answer With New Matter and Counterclaim, the averments of which are incorporated herein by reference as if set forth in full. To the extent not in Plaintiff's possession, Defendant is in the process of accumulating the information necessary to answer this Interrogatory, however, :lIt present Defendant is not in possession of the information and documentation necessary to answer this Interrogatory. Accordingly, Defendant reserves the right to supplement this response and will so supplement this response once she is able. 13. Provide a list of any personal property Defendant claims she purchased when she lived with Plaintiff at One Cedar Cliff Drive, Camp Hill, Pennsylvania, Cumberland County, 17011 which was contributed to the household. For each item, (1) attach receipts, (2) identify the price paid for the item, (3) how it was paid for and (4) the source of the funds (where the Defendant obtained the funds) used by Defendant to pay for the property. (Attach copies of receipts and additional pages for your answer if needed). Also for each item, indicate where the personal property is now and in whose possession the property is in. The information necessary to answer this Interrogatory is in the possession of Plaintiff and Plaintiff has refused to return receipts evidencing purchases or payments that are covered by this Interrogatory. Defendant has enumerated costs, paymlmts, and amounts which she has paid for property, services, maintenance, repairs, etc... in her Answer With New Matter and Counterclaim, the averments of which are incorporated herein by reference as if set forth in fnll. To the extent not in Plaintiff's possession, Defendant is in the process of accumnlating the information necessary to answer this Interrogatory, however, lilt present Defendant is not in possession of the information and docnmentation necessary to answer this Interrogatory. Accordingly, Defendant reserves the right to supplement this response and will so supplement this response once she is able. By way of further answer, and withont limitation to supplement this response, Defendant purchased and/or bronght with her to the parties' jointly OWlllld property numerous items of antiques (both personalty and furniture), an African Gray I'arrot (including cage and accessories), antique Napoleon 1700's table, and a white sapphire ring. As alleged in the Answer With New Matter and Counterclaim, many items of Defendant's furnishings and personalty were suhject to auction as a result of Plaintiff's deception and conduct. 14. List any personal property Defendant owned when she moved in with Plaintiff and whether the property is in Plaintiffs possession now or whether Defendant has said property. Without limitation to supplement this response, Defendant pmrchased and/or brought with her to the parties' jointly owned property numerons items of alntiques (both personalty and furniture), an African Gray Parrot (including cage and a(:cessories), antique Napoleon 1700's table, and a white sapphire ring. As alleged in the Answer With New Matter and Counterclaim, many items of Defendant's furnishings and personalty were subject to auction as a result of Plaintiff's deception and conduct. Defendant reserves the right to supplement this response 15. List any of Defendants personal property identified in question 14 which was either destroyed or damaged by fire, and whether the property was n:stored or replaced. If the property was destroyed, indicate whether the property was replaced and the source of funds used to replace said property. Also indicate who has possession of said property now. Without limitation to supplement this response, Defendant purchased and/or brought with her to the parties' jointly owned property numerous items of amtiques (both personalty and fnrniture), an African Gray Parrot (including cage and a(:cessories), antique Napoleon 1700's table, and a white sapphire ring. As alleged in the Answer With New Matter and Counterclaim, many items of Defendant's furnishings and personalty were subject to auction as a result of Plaintiff's deception and conduct. Defendant reserves the right to supplement this response. A complete list and/or itemization of Defendant's personal property destroyed or damaged by the fire is not yet complete and will be provided as soon as completed. This information is obtainable through Bill Kushbaugh, the adjuster for Liberty Mutual who handled the claims for fire damage filed by both Plaintiff and Defendant. Mr. Kushbaugll1's phone number is 1-800- 4002 x 213. By way offurther answer, items were restored by Tuckey Restoration from which a list of damaged items may be obtained. 16. Identify and attach copies of any contracts that Defendant entered into with Plaintiff which are signed by Plaintiff or any verbal contracts between Plaintiff and Ddendant, where Plaintiff agreed to pay an amount, in consideration for work performed to the residence by Plaintiff or any other party to the contract that Defendant is aware of Identify the name, address and telephone number of any parties to said contracts. If no such written or verbal contracts exist, indicate none. The requested documents are in Plaintiff's possession. All signed documents between Plaintiff and Defendant are attached as Exhibits to either Plaintiff's Complaint or Defendant's Answer With New Matter and Counterclaim. Defendant reserves the right to supplement this response. 17. Identify any household expenses, the amount and date of payment, including mortgage payments, utilities, and similar expenditures associated with the residence at One Cedar Cliff Drive, Camp Hill, Pennsylvania for which Defendant paid with her personal funds. IdentifY the funds that Defendant used of her own, not including money obtained by fire insurance or given to Defendant by Plaintiff, and the source of those funds. Defendant paid the specific sums for mortgage reinstatements alleged in Defendant's Answer With New Matter. In addition, Defendant paid expenses associated with the upkeep, maintenance, and repair of the jointly owned property. All sUi~h expenditures will be itemized specifically, however, at the time of the answering of this Interrogatory, such itemization is not complete. Defendant reserves the right to supplement this response and will do so once the requested information is compiled. 18. Also, based on your answer from question 17, indicate whether Defendant paid said expenses in the form of a loan which was subsequently repaid by Plaintiff a,nd the source of the original funds paid by Defendant. If a loan was made, attach copies of any loan agreements and indicate whether said loans were satisfied. See Defendant's Answer With New Matter and Counterclaim pertaining to any loans made by Defendant to Plaintiff, specifically paragraphs fifteen (15) and sixteen (16). It is noted that Plaintiff's alleged repayment of the $7,097.00 owed to Defend~illt was paid from the proceeds of the auction of Defendant's personal property that Plaintiff caused to occur. Thus, there was no actual repayment of the loan as contemplated by the loan document. The source of the funds paid by Defendant were from her personal monies derived from her employment andlor her savings. Loan document is attached to Plaintiff's Complaint. Defendant reserves the right to supplement this response. 19. Identify any expenses associated with the residence at One Cedar Cliff Drive, Camp Hill, Pennsylvania, including mortgage payment, utilities, maintenance, upkeep, taxes, and related expenses that Defendant continued to pay with her personal funds after moving out of the residence. Identify the funds that Defendant uses of her own, not including money obtained by fire insurance or given to Defendant by Plaintiff, and the source of those funds. Indicate whether Defendant continues to pay said expenses at present. Also indicate whether Defendant paid said expenses in the form of a loan which was subsequently repaid by Plaintiff The information necessary to answer this Interrogatory is in the possession of Plaintiff and Plaintiff has refused to return receipts evidencing purchases or payments that are covered by this Interrogatory. Defendant has enumerated costs, payments, and amounts which she has paid for property, services, maintenance, repairs, etc... in her Answer With New Matter and Counterclaim, the averments of which are incorporated herein by reference as if set forth in full. To the extent not in Plaintiff's possession, Defendant is in the process of accumulating the information necessary to answer this Interrogatory, however, at present Defendant is not in possession of the information and docnmentation necessary to answer this Interrogatory. Accordingly, Defendant reserves the right to supplement this response and will so supplement this response once she is able. By way of further answer, Defendant paid the specific sums for mortgage reinstatements alleged in Defendant's Answer With New Matter. In addition" Defendant paid expenses associated with the upkeep, maintenance, and repair of the jointly owned property as alleged in the Answer With New Matter and Counterclaim. All such expenditures will be itemized specifically, however, at the time of the answering of this Interrogatory, such itemization is not complete. Defendant reserves the right to supplement this response and will do so once the requested information is compiled. 20. Identify any expenses for maintenance, remodeling, restoration, or construction, associated with the residence at One Cedar Cliff Drive, Camp Hill, Pennsylvania ~Jr which Defendant paid with her personal funds. Identify the funds that Defendant used of her own, whether the money obtained by fire insurance or given to Defendant by Plaintiff, and the source of those funds. Also indicate whether Defendant paid said expenses in the form of a loan which was subsequently repaid by Plaintiff See Plaintiff's Complaint. The information necessary to answer this Interrogatory is in the possession of Plaintiff and Plaintiff has refused to return receipts evidencing purchases olr payments that are covered by this Interrogatory. Defendant has enumerated costs, payments, and amounts which she has paid for property, services, maintenance, repairs, etc... in her Answer With New Matter and Counterclaim, the averments of which are incorporated herein by reference as if set forth in full. To the extent not in Plaintiff's possession, Defendant is in the process of accumulating the information necessary to answer this Interrogatory, however, :it present Defendant is not in possession of the information and documentation necessary to answer this Interrogatory. Accordingly, Defendant reserves the right to supplement this response and will so supplement this response once she is able. By way of further answer, Defendant paid the specific sums for mortgage reinstatements alleged in Defendant's Answer With New Marter. In addition, Defendant paid expenses associated with the upkeep, maintenance, and repair of the jointly owned property as alleged in the Answer With New Marter and Counterclaim. All such expenditures will be itemized specifically, however, at the time of the answering of this Interrogatory, such itemization is not complete. Defendant reserves the right to supplement this response and w:ill do so once the requested information is compiled. 21. Identify any funds given to Defendant by Plaintiff to be deposited into Defendants personal bank account, the source of the funds, the reason Plaintiff gave said funds to Defendant and what the funds were used for. To be provided, if any. Without limitation, Defendant was paid the sum set forth on the loan docnment attached to Plaintiffs Complaint. Defendant reserves the right to supplement this response. 22. Identify any expenses for the purchase of personal property, fumishings, fixtures, appliances or related items, associated with the residence at One Cedar Cliff Drive, Camp Hill, Pennsylvania for which Defendant paid with her personal funds. Identify the funds that Defendant used of her own, including money obtained by fire insurance or given to Defendant by Plaintiff, and the source of those funds. Also indicate whether Defendant paid said expenses in the form of a loan which was subsequently repaid by Plaintiff. See Plaintiff's Complaint. The information necessary to answer this Interrogatory is in the possession of Plaintiff and Plaintiff has refused to return receipts evidencing purchases or payments that are covered by this Interrogatory. Defendant has enumerated costs, payml~nts, and amounts which she has paid for property, services, maintenance, repairs, etc... in her Answer With New Matter and Counterclaim, the averments of which are incorporated herein by reference as if set forth in full. To the extent not in Plaintiff's possession, Defendant is in the process of accumulating the information necessary to answer this Interrogatory, however, at present Defendant is not in possession of the information and documentation necessary to answer this Interrogatory. Accordingly, Defendant reserves the right to supplement this response and will so supplement this response once she is able. By way of further answer, Defendant paid the specific sums for mortgage reinstatements alleged in Defendant's Answer With New Matter. In addition, Defendant paid expenses associated with the upkeep, maintenance, and repair of the jointly owned property as alleged in the Answer With New Matter and Counterclaim. All such exp,enditures will be itemized specifically, however, at the time of the answering of this Interrogatory, such itemization is not complete. Defendant reserves the right to supplement this response and 1.vi1l do so once the requested information is compiled. 23. Did Defendant ever operate a business located in the residence at One Cedar Cliff Drive, Camp Hill, Pennsylvania? Ifso, indicate (I) the type of business, (2) the dates when the business was in operation, (3) whether the business continued to be operated when Defendant moved out of the house, (4) whether members ofthe public came to the residence, how often, etc. Objection. The requested information is irrelevant to the subject matter involved in the pending litigation. Moreover, the request is not reasonably callculated to lead to the discovery of admissible evidence. Accordingly, the requested information, beyond that is what is provided, is precluded by Pennsylvania Rules of Civil Procedure 4003.1(a) & (b), and 4001(c). See Defendant's Answer With New Matter and Counterclaim, specificalIy paragraphs seventeen (17) through twenty (20). 24. If Defendant operated a business from the house, what was the income from the business on a weekly basis and what was the annual income for any year that the business was in operation? Attach copies of business records indication the income received from the operation of the business, particularly if said income was not included in Defendant's income tax for the years provided in Question 7. Objection. The requested information is irrelevant to the subj'~ct matter involved in the pending litigation. Moreover, the request is not reasonably calculated to lead to the discovery of admissible evidence. Accordingly, the requested information, beyond that is what is provided, is precluded by Pennsylvania Rules of Civil Procedure 4003.1(a) & (b), and 4001(c). See Defendant's Answer With New Matter and Counterclaim, specifically paragraphs seventeen (17) through twenty (20). 25. Did Defendant ever contribute to the household mortgage or other expenses or reimburse Plaintiff for the use of the residence at One Cedar Cliff Drive, Camp Hill, Pennsylvania as a business, ether while she lived at the residence or after she moved. out of the residence? If so give (1) an itemized list of monies paid, (2) the amount, (3) what the funds were used for, (4) the date of payment, and (5) the source of the funds paid by Defendant. Yes. Defendant did contribute to the honsehold mortgage, exp'eTIses, upkeep, maintenance, etc... associated with the jointly owned property as alleged herein and as alleged in the Answer With New Matter and Counterclaim. See paragraphs eighteen (18) and nineteen (19) of the Answer With New Matter and Counterclaim. Defendant reserves the right to supplement this response. 26. How did Defendant first come to know Plaintiff? Give the nature of the original acquaintance, the relationship, and the events that brought them together. I met Plaintiff, his wife, and his child, Daniel, sometime in the Spring of 1999. I worked as a mobile Behavioral Therapist at the time and Daniel Turban WllS a child on my caseload. Daniel and his father, in particular, were having problems at home. Daniel was also having school difficulties as well for quite some time. I was the third therapist called into the Turban home, as Plaintiff had interpersonal difficulties with many of the stafffrom my agency. The averments of the Answer With New Matter and Counterclaim are also incorporated herein by reference as if set forth in full. 27. At the time Defendant first met Plaintiff, was there any professional relationship between them, and ifso what was the nature of the relationship. See answer to preceding Interrogatory. 28. If there was a professional relationship between Defendant and Plaintiff as detailed in Question 27, on what date (approximately) did that professional relationship begin and end? For beginning of professional relationship, see above. The end of the professional relationship came about in or about January 2000. 29. On approximately what date did Defendant become romantically and sexually involved with Plaintiff? Mid-July 2000. 30. On what date did Defendant move into Plaintiffs residence? November 2000. 31. W d' DclW""" on' PI."'" ff ~ct ~"g" " b' """,,,W ti '" on - ",t' did ,b' ~",,,,,,,,\ begin? y~. J.n< 2001. M~''''' "".,,,, ..." prim."" b> .",.ttll, p,to, to ,.,.,_., 32. On what date did Defendant have a deed prepared to transfer an interest in Plaintiffs house to her? Give details as to the reason for the transfer, the date of the agreement, who initiated the agreement, when the agreement was formalized, when and what attorney prepared the transfer. Attach copies of any and all documentation, including gift letters, deeds, correspondence, etc. evidencing the transaction. Defendant did not have a deed prepared to transfer an interest in Plaintiff's house to her. The preparation of the deed and the transfer of an undivided one-half interest in the property was caused by Plaintiff's actions and desire to accomplish such a tnmsfer. As such, Plaintiff possesses all information and knowledge as to the information requested. 33. On what date did Defendant record the deed to transfer an interest in Plaintiffs house to her? Attach copies of any documentation associated with the recording ofthe deed. Deed was signed by parties on July 7, 2002. The Deed was not n~corded initially because Plaintiff failed to pay the transfer tax associated with the transal~tion. Defendant recorded the Deed in May 2003 and paid the remaining transfer tax necessary to accomplish recording of the document. 34. If Defendant and Plaintiff were engaged to be marred, on what date did the engagement terminate. June 28, 2003 when Defendant terminated the relationship. Even in the absence of a formal engagement ring, the parties consistently contemplated, embracl~d, and intended to be married until the time Defendant terminated the relationship. CERTIFICATE OF SERVICE I, JARAD W. HANDELMAN, ESQUIRE, do hereby certify that I served a true and correct copy of the foregoing Answers to Interrogatories upon the following below-nllIlled individual(s) by depositing same in the United States mail, postag~ prepaid, at Hershey, Pennsyl- vania, this 9th day of June, 2004 to: SERVED UPON: Steven R. Snyder, Esquire 302 North Front Street, Suite 300 Harrisburg, P A 1711 0 .~~ JARAD W. HANDELMAN, ESQUIRE .- n ", C) , 1 , 1"1 I ".) , (...i ?'" : (-> CJ "-"- ~, .-<: \.U JAMES H. TURBAN, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LA VI VALERIE L. ZEHRING, Defendant NO. 04-983 EQUITY TERM ORDER OF COURT AND NOW, this 8th day of November, 2004, upon consideration of Plaintiffs Motion To Compel Answers to Interrogatories, a discovery conference is scheduled in chambers of the undersigned judge for Monday, December 20, 2004, at 2:30 p.m. BY THE COURT, // l[ J '-""":) j' ~even R. Snyder, Esq. 3029 North Front Street Suite 300 Harrisburg, PA 17110 Attorney for Plaintiff ;> /1-09 -0 'I iA'arad W. Handleman, Esq. 134 Sipe Avenue Hershey, PA 17033 Attorney for Defendant :rc }j .: , - /\ ~' ,\l.i'~r;C"~- J_0:1 -"::"rlJ S2 :8 NV 5- Anti ~OOl M:J7iG;~J;~lOGd 3Hl dO ;Ji:!J0-03l!:l JAMES H. TURBAN, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v CIVIL ACTION - LAW VALERIE L. ZEHRING, Defendant 04-983 EQUITY TERM IN RE: DISCOVERY CONFERENCE ORDER OF COURT AND NOW, this 20th day of December, 2004, upon consideration of Plaintiff's Motion To Compel Answer to Interrogatories, and following a conference held in the chambers of the undersigned judge in which Plaintiff was represented by Steven R. Snyder, Esquire, and Defendant \Vas represented by Jarad W. Handelman, Esquire, Plaintiff's Motion lS granted to the following extent and otherwise denied: 1. Within 30 days of today's date Defendant shall furnish to Plaintiff's counsel any documentation tending to support Defendant's defense to Plaintiff's claim which indicates contributions which she made to the realty in question, including evidence of any mortgage payments; 2. Within 30 days of today's date Defendant shall furnish to Plaintiff's counsel her curriculum vitae as it relates to her educational background; 3. Within 30 days of today's date Defendant shall furnish to Plaintiff's counsel any documentation tending to support her defense as it relates to contributions of tangible property which she made to the parties' household and/or real estate; 4. The responses of Plai~tiff required hereunder shall be in verified form; 5. Any action on Plaintiff's Motion To Compel to i; , i : ( ':~,. . ,.'- '1 ' , I r '..) . ~ (" ..J ( ., . , .. ,_J .,_"'l "~ ':.) the extent that it relates to Defendant's counterclaim lS deferred on the basis of an automatic stay arising out of bankruptcy proceedings initiated by Plaintiff. By the Court, ..., J ! ,... r .. l t-?~/ elC J. Wesley Ol~E) Jr., J. v ~teven R. Snyder, Esquire 3029 North Front Street Suite 300 Harrisburg, PA 17110 Attorney for Plaintiff > ~ I:('~c/ ~Jarad w. Randleman, Esquire 134 Sipe Avenue Hershey, PA 17033 Attorney for Defendant :mae Steven R. Snyder, Esquire Attorney 10 Number 90994 3029 North Front Street, Suite 300 Harrisburg, PA 17110 (717) 238-9130 Attorney for Plaintiff IN THE COURT OF COMMON PLEAS IN CUMBERLAND COUNTY JAMES H. TURBAN Plaintiff v. No. 04-983 Equity Term VALERIE L. ZEHRING Defendants CIVIL ACTION - EQUITY MOTION FOR SANCTIONS AND NOW, comes the Plaintiff, James H. Turban (hereinafter referred to as "Plaintiff'), by his attorney Steven R. Snyder, Esquire, and moves this Honorable Court impose sanctions on the Defendant Valerie L. Zehring (hereinafter referred to as "Defendant") for failing to comply with the December 20 Order of the Court compelling Defendant to answer the interrogatories propounded to her by Plaintiff and as reason therefore states: I. On March 5, 2004 Plaintiff filed this Complaint against Defendant in Cumberland County Court of Common Pleas. 2. On May 27, 2004 Plaintiff filed a Notice of Praecipe to Enter Judgment by Default as a result of Defendant's failure to file a timely Answer to Plaintiffs Complaint in the time prescribed under Pennsylvania Rules of Civil Procedure. 3. On June 7, 2004, Defendant filed an Answer with New Matters and Counterclaim in response to Plaintiffs Notice of Praecipe to Enter Judgment by Default. 4. On June 24, 2004, Plaintiff filed a timely Answer to Defendants Answer with New Matters and Counterclaim. 5. On May 10, 2004, Plaintiff forwarded Interrogatories to Defendant regarding the above docketed Complaint. 6. On June 9, 2004, Defendant filed an Answer to Plaintiff's Interrogatories with a significant number of objections to the aforesaid Interrogatories as well as reserving the right to forward requested information and supplement answers at a later date. 7. On September 23, 2004 Plaintiff filed a Motion to Compel Answers to Plaintiff's unanswered Interrogatories and to receive the supplemental documents and answers as indicated in Defendant's Answer. 8. On December 20, a hearing was held before the Honorable J. Wesley Oler, Jr., Judge, Cumberland County Court of Common Pleas compelling Defendant to Answer numerous Interrogatories which were not answered in Defendant's June 9, 2004 Answer to Plaintiff's Interrogatories within 30 days of the December 20,2004 date ofthe Order. 9. During said hearing, the Honorable Judge Oler. Made the contents of the Order known to both parties, leaving no question as to what was required to comply with the order. 10. As of the date of the filing of this Motion for sanctions, Defendant has failed to comply with the December 20, 2004 Order of this Honorable Court compelling answer to Plaintiff's interrogatories. II. Pennsylvania Rules of Civil Procedure 4019(g)(I) provides that "if following the.. . failure of a party or person to comply with any provision of this chapter, the court, after opportunity for hearing, enters an order compelling compliance and the order is not obeyed, the court on a subsequent motion for sanctions may, if the motion is granted, require the party or deponent whose conduct necessitated the motions or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses, including attorney's fees, incurred in obtaining the order of compliance and the order for sanctions, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust. 12. Plaintiff has expended considerable expenses, including attorney fees in preparing and filing the Motion to Compel Answers to Plaintiff's Interrogatories, in attending the December 20, hearing and in the preparation of this Motion for Sanctions totaling $1,200.00. WHEREFORE, Plaintiff, James H. Turban requests this Honorable Court award sanctions to Plaintiff, in the amount of $1 ,200.00 as provided for pursuant to P.a Rule of Civil Procedure 4019 to compensate him for his costs and attorneys fees expended in his continued effort to have said interrogatories answered in compliance with the December 20,2004 Order of the Honorable 1. Wesley Oler, Jr., Judge, Cumberland County Court of Common Pleas. or ( zC; ( 0'5 Respectfully submitted, By ~~~t Attorney for the Plaintiff Attorney ID Number 90994 3029 North Front Street, Suite 300 Harrisburg, PA I7110 (717) 238-9130 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Motion for Sanctions and proposed Order of the Court was served by depositing the same in the United States Mail, First Class, at Harrisburg, Pennsylvania, on the of January, 2005, addressed as follows: Jarad W. Handelman, Esquire James Smith Dietterick & Connelly LLP 134 Sipe Avenue Hershey, PA I7033 Attorney for Defendant Valerie Zehring / Date: January 2-) ,2005 ~ Steven R. Snyder, squire Attorney ID Number 90994 3029 North Front Street, Suite 300 Harrisburg, P A I7I IO (7I7) 238-9130 Attorney for Plaintiff 'ff ~ ~~ ~ ~\ ~ ~ '::.I-- ~~\J: ~ ("\' r -------- JAMES H. TURBAN, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. CIVIL ACTION - LAW V ALERlE L. ZEHRlNG, Defendant NO. 04-983 EQUITY TERM ORDER OF COURT AND NOW, this 27th day of January, 2005, upon consideration of Plaintiffs Motion for Sanctions, a hearing is scheduled for Tuesday, February 22, 2005, at 3:00 p.m., in Courtroom No. I, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, ~ven R. Snyder, Esq. 3029 North Front Street Suite 300 Harrisburg, P A 17 I 10 Attorney for Plaintiff yiarad W. Handleman, Esq. 134 Sipe Avenue Hershey, PA I7033 Attorney for Defendant ~ :rc \; n ".' ,.. ~,.. n. 0"0 oJ ,.\ j",d ,.. "'("',1;\1 "" ~:~\\ \..l\,J0~ ?,6 \,. :. '. -"- --:;A1 :s.) __ '.5(,~~~;:(S~\'0~ - JAMES H. TURBAN, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-983 EQUITY TERM v. VALERIE L. ZEHRING Defendant CNIL ACTION- EQUITY (PARTITION) DEFENDANT'S ANSWER TO PLAINTIFF'S MOTION FOR SANCTIONS AND NOW, comes the Defendant, Valerie L. Zehring, by and through her attorneys, James, Smith, Oietterick & Connelly, LLP, and answers the Motion for Sanctions filed by Defendant, James H, Turban, In opposition to said Motion, Ddendant avers as follows: I. Admitted. 2, Admitted, By way of further answer, Plaintiff subsequently entered a default judgment against Defendant on June 7, 2005 in contravention ofthe Pennsylvania Rules of Civil Procedure. Defendant's counsel subsequently acknowledged his error and withdrew the default judgment that had been improperly entered following the provision of correspondence from Plaintiffs counsel on June 9, 2004, a true and correct copy of which is attached hereto as Exhibit "A" and incorporated herein by reference as if set forth in full. 3. Denied as stated. Defendant filed an Answer with New Matter and Counterclaim in response to Plaintiffs Complaint. 4, Admitted. 5. Admitted. 6, Admitted, 7, Admitted, 8. Admitted. By way of further answer, this Honorable Court sustained a number of the objections filed by Defendant to Plaintiffs Interrogatories. Moreover, although the hearing was held on December 20, 2004, the Order from which the date for responses was to be calculated was not sent to Defendant until January 7, 2005 when the undersigned first had an opportunity to do so because of the holidays and absences from the office, Moreover, due to the holidays and a death in Defendant's family, counsel could not I:ommunicate with Defendant prior to sending her the information and Defendant was unable to begin to assemble the required infOlmation until only days before the thirty (30) days was to expire, 9. Denied as stated. It is admitted only that the infi)rmation required to be produced was known to counsel for the parties, Due to the delays referenced in the preceding paragraph, Defendant was not actually made aware of the information to be produced until she received the Order after it was sent to her on January 7, 2005. Moreover, on January I9, 2005, realizing that Defendant would not be able to supply the information on January 20, 2005 as required by this Honorable Court's Order, counsel for Defendant wrote to Plaintiffs counsel and requested a two week extension of time, until February 2,2005, in order to allow Defendant to accumulate all necessary documentation. A true and correct copy of counsel's letter ofJanuary 19,2005 is attached hereto as Exhibit "B" and incorporated herein by refen~nce as if set forth in full. 10, Denied as stated. As averred above, as of the time of the filing of the Motion for Sanctions Plaintiffs counsel was well aware that Defendant could not supply the requested information as required by the Order. See Exhibit "B". By way of further answer, it was not until January 24,2005 that Plaintiffs counsel advised that he was not agreeabIe to a brief extension and that he would be filing a Motion for Sanctions despite the undersigned assurance that counsel would receive the discovery materials on or before February 2,2005, I 1. Denied, The averments of paragraph eleven (I I) are conclusions oflaw to which no responsive pleading is required and strict proof thereof is d,~manded, To the extent an answer is required, it is specifically denied that the imposition of any sanction pursuant to Pa,R,C.P, 4019(g)(1) is justified under the circumstances of this matter. To the contrary, Defendant has never opposed the Motion; Defendant advised Plaintiff prior to the expiration of the thirty (30) days that compliance could not be completed within the applicable time frame; the time constraints and personal obstacles faced by Defendant preclud<ed timely compliance with the Order; and Defendant produced all required information within the time that Defendant's counsel had advised Plaintiffs counsel was necessary to acquire all necessary infornlation and documentation, Under such circumstances, an award of sanctions under Pa.R.C.P. 4019(g)(I) would be unjust. 12. Denied, It is specifically denied that the amounts set forth in paragraph twelve (12) are reasonable and/or necessary under the circumstances presented herein. Moreover, it is specifically denied that any sanction is proper in this case. Wherefore, Defendant, Valerie L. Zehring, respectfully requests that Plaintiff, James H. Turban's, Motion for Sanctions be denied.. Respectfully submitted, \ L)) DC: Dated: J I By: J~S, SMITH, mETTERIC~ & CONNELLY, LLP [< 11 r ! I I ~ ~, f /uller ltJ. flt'lAt{J u/'--( J D W. HANDELMAN, ESQUIRE ttorney LD, #82629 P.O, Box 650 Hershey, P A 17033-0650 (7I7) 533-3280 Attorneys for Def<endant, Valerie L. Zehring )AMEs SIvlITH DnrrrERrCK & CONNEllY Lll' Jarad W, Handelman iwhUidsdc.com FAX: 717.533.2795 June 9, 2004 VIA FACSIMILE (717) 238-9156 and REGULAR MAIL Steven R. Snyder, Esquire 3029 North Front Street Suite 300 Harrisburg, P A 17 I 10 Re: Turban v. Zehring Docket No. 04-983 Dear Steve: I am in receipt of your Praecipe for Default Judgment filed on June: 7, 2004 at 4:I I p,m. in the Prothonotary's Office of the Cumberland County Courthouse. As you are aware by now, an Answer with New Matter and Counterclaim was fikd on behalf of Ms. Zehring on June 7, 2004 at 9:I8 a.m. in the Cumberland County Courthouse. Thus, it is plain that an Answer to your Complaint was filed prior to your entry of a default judgment against Ms. Zehring. Accordingly, the default judgment was clearly improperly entered and as contrary to appIicabIe Rule. Specifically, Rule 1037 of the Pennsylvania Rules of Procedure governing judgment upon default explains that "the filing of an answer or preliminary objections clearIy will prevent the entry of a default judgment." See Rule 237.1, Explanatory Comment Governing Subdivision(s). I trust that the clarity of the Rules for the entry of default judgment convin,:e you that you must immediately praecipe to withdraw the default judgment against Ms. Zehring. Furthermore, even had an Answer not been filed prior to the entry of the default judgment against my client, your Praecipe is nonetheless preliminary. As you are aware, pursuant to Rule 237,1, and as the Default Notice itself clearIy provides, my client has ten (I 0) days from the date of the Default Notice to act, particularly to file a responsive pleading to the Complaint. In this case, your Default Notice was dated May 27, 2004, thus permitting action by my client to be taken on June 6, 2004. Based on my interpretation of the Rules, because the time frame in which to act fell on a day that the courthouse was closed, my client, as in any other pleading circumstance, would be permitted to respond until June 7, 2004, the very day on which the Answer to the Complaint was filed. As such, your default Praecipe could not have been filed properly prior to June 8, 2004. Of course, the calculation of time is irrelevant to the defauIt judgment entered against my client in this case considering, regardless of any calculation of time:, an Answer to the Complaint was filed prior to the entry of a default judgment. I \", ' : ' , ~ JS){ 134 SIPE ;:..'IE!JUE hl;',IMELSTO;NN, PA . ;"1.);'6 ~JlJ.,!U!'K] ADDRESS: .:o-~,_ F:OA E5Q HEr:;SHEY PA '7C)33 TEI_. ~'7 :'32 :'230 ,:v,',jW.~SDC,C'J.'v1 GAAY L. JAMES MAX J. SMITH. JR. JOHN J. CONNELLY, JR. SCOTT A, DIETTERICK JAMES F. SPADE BRYAN S. WALK MATI"HEW CHABAL. III GREGORY K. RICHARDS SUS/>,N M. KAOEL JARAD W. HANDELMAN DONNA M. MULLIN EDWARD P. SeEBER NEIL W. Y AHN COURTNEY L.. KISHEL KIMBERLY A. DEWrfT Of- COUNSEL: MANLEY DEAS & KOCHALSKI, LLC COLUMBUS. OH Steven R. Snyder, Esquire June 9, 2004 Page 2 of2 Based on the clear practice established by the Pennsylvania Rules of Civil Procedure, please accept this correspondence as my request for your immediate withdrawal of the default judgment entered against my client. Should I not re'~eive your immediate agreement to advise the court of the erroneous entry of default judgment, I will file a Petition to Strike the Judgment with the court tomorrow and request therein that I be reimbursed for the attorney fees expended in preparing a pleading that I otherwise should not have had to prepare if the applicable Rules were followed. In this regard, I request that you contact me as soon as possible, Thank you for your kind attention. I look forward to hearing from you shortly. Very truly yours, Jarad W. Handelman JWH:smg )AMEs SMITH DlErrERICK & CONNELLY Lll' Jarad W. kand~lmari iwMnisdc.com FAX: 717.533.2795 January 19,2005 VIA FACSIMILE (717) 238-9156 and REGULAR MAIL Steven R. Snyder, Esquire 3029 North Front Street Suite 300 Harrisburg, P A I 711 0 Re: Turban v. Zehring Docket No. 04-983 Dear Steve: Please accept this correspondence as my request for a two-week extension of time to reply to the discovery as ordered by Judge Oler. Valerie is in the midst of very difficult personal and family circumstances, including the late November un,expected death of her mother, Following her mother's death, Valerie now faces the imminent loss of her current residence, as well as having to deal with the loss of her mother. Needless to say, the holidays were less than a pleasant time for Valerie, and she has not been able to secure the documentation required to be produced by Judge Oler in the timeframe established. Moreover, I did not receive the Order from Judge Oler until well after the holidays, in fact, not until after the first of the year due to absences from the office because of the holiday season. Thus, I was not able to provide the Order to Valerie immediately, thus leaving her far less than thirty (30) days to accumulate the information. Accordingly, I request that you permit an extension of time to provide the discovery responses until February 2, 2005. Your courtesy in this regard would be greatly appreciated, If I cannot secure your agreement, I will be forced to move the Court for an extension similar to that requested herein. I would prefer to avoid having to do so, Please call to discuss this issue as soon as possible, Thank you for your kind attention. Very truly yours, JAMES, SMITH, DIET K & CONNELL Y LLP ~ Jarad W. Handelman JWH:smg cc: Valerie Zehring I \ I ' JS'}( PO 80X 650 HERSHE", PA 17033 C;drI8';),drJress 134 :,IP~,AVE;'JUE '1UIIMELSTOWN, PA 1T036 r:::L, :'j7:33.J280 ',..W^'VJSDC.CQM GARY L. JAMES MAX J. SMITH, JR. JOHN J. CONNEL.LY, JR. SCOTT A. DIETTERICK JAMES F. SPADE MATTHEW CHABAL, III GREGORY K. RICHARDS SUSAN M. KADEL JAAAO W. HANDELMAN DONNA M. MULLIN EDWARD P. SeEBER NEIL W. YAHN COURTNEY L. KISHEL KIM8~RLY A. DeWITT OF COUNSEL: MANLEY OEAS & KOCHALSKI, LLC COLUMBUS, OH BERNARD A. RYAN, JR. HERSHEY, f'lA " . " CERTIFICATE OF SERVICE I, JARAD W. HANDELMAN, ESQUIRE, do hereby certify that Defendant's Answer to Plaintiffs Motion for Sanctions was served upon the following below-named individual via hand-delivery this 22nd day of February, 2005 to: SERVED UPON: Steven R. Snyder, Esquire 302 North Front Street, Suite 300 Harrisburg, PA 17110 , ) 1) ) (~ '- ! tJv~ / ff.{vVV^- ~ J W. HANDELMAN, ESQUIRE JAMES H. TURBAN, Plaintiff v VALERIE L. ZEHRING, Defendant IN RE: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 04-983 EQUITY TERM CIVIL ACTION - EQUITY (PARTITION) MOTION FOR SANCTIONS ORDER OF COURT AND NOW, this 22nd day of February, 2005, upon consideration of Plaintiff's Motion for Sanctions, and following a hearing at which the evidence, in the Court's view, established that the Defendant failed to comply with the discovery Order of Court dated December 20, 2004, and that the attorney's fees testified to by Plaintiff's counsel were fair, reasonable, and necessary with respect to this matter, the Court finds that the Defendant did fail to comply with the Order of Court dated December 20, 2004, and the sanction imposed is that the Defendant 60 days of today's date. pay Plaintiff's counsel fees in the amount of $1,200.00 within time. No other relief is granted on the motion at this By the Court, ( // . 1/ '-t ,esley Ol~r, ~even R. Snyder, Esquire 3029 North Front Street Suite 300 Harrisburg, PA 17110 ~ For the Plaintiff J?frad W. Handelman, Esquire 134 Sipe Avenue Hummelstown, PA 17036 For the Defendant :mae - JAMES H. TURBAN, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-983 EQUITY TERM v, VALERIE L. ZEHRING Defendant CNIL ACTION - EQUITY (PARTITION) MOTION TO EXTEND TIME FOR PAYMENT OF COUNSEL FEES AND NOW, comes the Defendant, Valerie L. Zehring, by and through her attorneys, James, Smith, Dietterick & Connelly, LLP, and moves this Honorable Court to extend the time for payment of counsel fees awarded to Plaintiffs counsel by Order of February 22,2005. In support thereof, Defendant avers as follows: 1. On February 22,2005, this Honorable Court granted a Motion for Sanctions filed by Plaintiff, James H. Turban, arising from a discovery matter. A true and correct copy of the Order is attached hereto as Exhibit "A" and incorporated herein by reference as if set forth in full. 2. The Order required Defendant to pay the sum of $1 ,200.00 in counsel fees to Plaintiffs attorney within sixty (60) days of the Order. 3, Defendant is unable to pay the counsel fees as awarded by this Honorable Court to Plaintiffs counsel on or before April 23, 2005 as required by the Order. 4. Defendant is not employed and has not been employed since February 22, 2005 when the Order was issued. 5. Defendant has made efforts to secure the monies required to be paid to Plaintiffs counsel, but has been unable to secure funds sufficient to satisfy the sanction imposed, 6. Defendant has no assets she can liquidate to pay the amount owed. 7. The main asset Defendant owns, and into which much of Defendant's money has been expended over the last several years, is the subject of this litigation. 8. Until this litigation is resolved, Defendant will likely not have sufficient funds to pay the amount awarded to Plaintiffs counsel. 9. The undersigned requested an extension oftime for payment of the counsel fees from Plaintiffs counsel, but no response was received to said request at the time of the filing ofthis Motion, WHEREFORE, Defendant respectfully requests that this Honorable Court permit the payment of the attorney fees awarded to Plaintiffs counsel at the conclusion of this case, or alternatively, extend the time for payment of the counsel fees to Plaintiffs counsel for an additional six (6) months, Respectfully submitted, JAMES, SMITH, DIETTERICK & CONNELLY, LLP Dated: 'f -/8 - 6,-) -s JARAD W. HANDELMAN, ESQUIRE Attorney I.D. #82629 P,O. Box 650 Hershey, P A 17033-0650 (7 I 7) 533-3280 Attorneys for Defendant, Valerie L. Zehring - / x\1\\~!- "/~ \ ~ Jl\ME,'; H. TURBAN, Plaintiff IN THE COUET OF COMMON PLE.n.s OF CUMBERLAND COUNTY, PENNSYLVANIA v 04-983 EQUITY TERM VALERIE L. ZEHRING, Defendant CIVIL ACTION - EQUITY (PARTfT10N) IN RE: MOTION FOR SANCTIONS ORUEl( OF COUF,T AND NO~r thj_s 22nd day of FelJruary, 2005, llpon consideration of Plaintiff's Mot.ioll f()r Sanctj.ons, and foJl.owing ('1 tlcdring at ~;Jhich_ the evidence, in the Courtls view, f~~;tc-l.bJishcd LIldt- t~_lIC Defend2)nt failed to compJ j" 1,1ith tr12 di.scovcry Ul~der of: Court ddted l)ecernbel~ )(1, :?OCJ4, ancL tlicIt tile atlornC:'y.'t; Ice.':; tc:.,tifi.l:cl tn t)y Plaint.iff I E-.; coun:jcl \.oJen' f,~lirf rca.<::o:ld.LJ-lp, and rL:ce:c; (,lC\i lilit.h re;::;T)C"ct tel thi.~..; rneJi.tet I t:,)\f: COlIlt fil,-d~; lhc'll.-. thE? U,;[:-~rl(id_nt (lid fail tel COlll.ply ~\j'l_t:l (',li,-' Cil:dcr uf' CC)IJ.l t._ eJ.;':it d :~'\_,', '~~'nt\JC;l :)0, ~~OCJ4, and t.h(=: SClnc:t 1.011 :';f:~d J_':; thc:1t t.l"'2 D,::::r'~:'ncLl!lt riD)' P}rli.flt:.iffls C01ll'1501 fee:?' ill l~llc (lr1'.Ollnt of ~;],,2()O.l:'O ;,-1i.trlin S() days ()[ l.(Jdayls date. 1:-)0 ot:[)"::.r r(~lier .J.~' '~}r,',!\t.ccl un r,he ni;,)t~ orl at thi::.; t: j 1"7 L ~ H\/ (:11(: CourL, ! '---I ,,'1. sr~~V Olf? ~-;t>-.:.:\Tcn P.. Snyd;~r! E:squ'j rE: 3079 Nortl1 FrOJ'll Street Su 1 t.e 300 Hal ]::isburCJ, PI-\ 1-7110 '?'or the P~laintifr 1,~aYad IN. Handelman, E,s',cTuire Vi 34 Sipc ,I\venue flumlnel :--:;tc)\.,in, PA 17036 FCJr tile UefC;lldafll : ]\1;.'::.2 CERTIFICATE OF SERVICE I, JARAD W, HANDELMAN, ESQUIRE, do hereby certify that I served a true and correct copy of the foregoing Motion to Extend Time for Payment of Counsel Fees upon the following below-named individual via facsimile (7I7) 238-9156 and by depositing a copy of the same in the United States mail, postage prepaid, at Hershey, Pennsylvania, this 18th day of April, 2005: SERVED UPON: Steven R. Snyder, Esquire 302 North Front Street, Suite 300 Harrisburg, PA 17110 ~~- f~ . ;. "-, C_.J C"~ C','l ,~ '~ >~ -n :;1 ~... ;:J OJ f'_" c"\ , JAMES H. TURBAN, Plaintiff v, VALERlE L. ZEHRlNG, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA CIVIL ACTION - LAW NO. 04-983 EQUITY TERM ORDER OF COURT AND NOW, this 21st day of April, 2005, upon consideration of Defendant's Motion To Extend Time for Payment of Counsel Fees, a Rule is hereby issued upon Plaintiff to show cause why the relief requested should not be granted, RULE RETURNABLE within 20 days from the date of this order, vSteven R. Snyder, Esq. 3029 North Front Street Suite 300 Harrisburg, PA I7110 ) Attorney for Plaintiff Jarad W. Handleman, Esq. 134 Sipe Avenue /Hershey, P A 17033 Attorney for Defendant :rc BY THE COURT, ./"' / ) / J. .' 1:Jv.~~. vr Y-f~"C\ ( :5 , . l \, i~ oy'P r'" :;) Ct ::7 ~,' ".! ?? SQ~,Z -L'.'; -,,,-.' - . JAMES H. TURBAN, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-983 EQUITY TERM v, VALERIE L. ZEHRING Defendant CIVIL ACTION - EQUITY (PARTITION) STIPULA nON FOR PAYMENT OF COUNSEL FEE AWARD AND NOW, come the parties, Plaintiff, James H, Turban, by and through his counsel, Steven Snyder, Esquire, and Defendant, Valerie L. Zehring, by and through her counsel, Jarad W, Handelman, Esquire, and stipulate to the entry of an Order in accordance with the following agreed upon terms: I, On February 22, 2005, this Honorable Court granted a Motion for Sanctions filed by Plaintiff, James H. Turban, arising from a discovery matter. A true and correct copy of the Order is attached hereto as Exhibit "A" and incorporated herein by reference as if set forth in full. 2, On or April 22, 2005, Defendant, Valerie L. Zehring, paid Plaintiffs counsel the sum of $500 towards the counsel fee award ordered by this Honorable Court, 3, The parties have agreed that the remaining $700.00 owed to Mr. Snyder shall be paid in monthly $I50.00 installments on or before the 22nd day of each month commencing on May 22, 2005, including a calculation of 6% interest on the monies that remain owed, in accordance with the following payment schedule: - . Payment Date Principal Interest Payment Net Balance Balance May 22, 2005: $700 $42.00 $150 $592.00 June 22, 2005: $592.00 $35.52 $I50 $477.52 July 22, 2005: $477.52 $28.65 $150 $356.17 August 22,2005: $356. ] 7 $21.37 $150 $227.54 September 22,2005: $227.54 $13.65 $150 $91.19 October 22, 2005: $91.19 $5.47 $96.66 $0 4. The parties further agree that if any of the scheduled payments is received by Plaintiffs counsel more than seven (7) days following the scheduled due date, a $30,00 late fee will be assessed against Defendant. S. The parties desire that the payment conditions memorialized herein be made an Order of this Honorable Court. 6. No further action is required on Defendant's Motion to Extend Time for Payment of Counsel Fees in consideration of this Stipulation and the Motion is hereby withdrawn. WHEREFORE, the parties respectfully request that this Honorable Court adopt the provisions of the foregoing Stipulation as an Order of Court. " . , Dated: Dated: 5 -:30-05 O<;-Z"2';.-oS- Respectfully submitted, JAMES, SMITH, DlETTERlCK & CONNELLY, LLP ~~ JARAD W."H~NDELMA ,ESQUIRE Attorney I.D. #82629 P,O. Box 650 Hershey, P A 17033-0650 (717) 533-3280 Attorneys for Defendant, Valerie L. Zehring Respectfully submitted, ~~IRE Attorney I.D. #90994 3029 North Front Street, Suite 300 Harrisburg, P A 17110 Attorney for Plaintiff, James H. Turban () ~; <. "'C'l!.' (~;_c . ..",. C/) c~r -r,: ;;' '" $:?::' 2; ~ ....., = = c..n '- ~ I ...0 o ." -i -!:-n fnp -n\'"i'i -i:JC( CJC~ ~:~~~ ,,'~rn ::2\ K.: :~ -0 ::t: ~~') <-'" 0"' ~~ Steven R. Snyder, Esquire Attorney ID Number 90994 3029 North Front Street, Suite 300 Harrisburg, PA 17110 (7I7) 238-9130 Attorney for Plaintiff IN THE COURT OF COMMON PLEAS IN CUMBERLAND COUNTY JAMES H. TURBAN Plaintiff v. No. 04-983 Equity Term VALERIE L. ZEHRING Defendants CIVIL ACTION - EQUITY NOTICE OF MOTION FOR PREFERENTIAL TRIAL SETTING To: Jarad W. Handelman, Esquire P.O. Box 650 Hershey, PA 17036 Attorney for the Defendant Please take notice that on June 8, 2005, mailed by U.S. Mail the attached Petition for Special Preference at the Cumberland County Court of Common Pleas for filing in the above docketed case. Plaintiff will move the above Court for an order granting a preference in the setting of this cause for trial, under Pa. Rule of Civil Procedure 2I4(2) and setting it for trial on a day certain at the earliest possible date, on the ground that Plaintiff is experiencing financial hardship which may necessitate his having to sell the house which is the subject of this suit. Said Petition will be made and based on this notice, on the affidavit and verification of the Plaintiff that the information contained in the Petition and attachments is true and correct to the best of his knowledge, which is attached hereto, and on all the pleadings, papers, records, and files in this action. Dated: June 8, 2005 f.B&!,1:ff7re~ Attorney ID Number 90994 3029 North Front Street, Suite 300 Harrisburg, PA I7I 10 (717) 238-9130 Attorney for Plaintiff Steven R. Snyder, Esquire Attorney ID Number 90994 3029 North Front Street, Suite 300 Harrisburg, P A 17I 10 (717) 238-9130 Attorney for Plaintiff IN THE COURT OF COMMON PLEAS IN CUMBERLAND COUNTY JAMES H, TURBAN Plaintiff v. No. 04-983 Equity Term VALERIE L. ZEHRING Defendants CIVIL ACTION - EQUITY PETITION FOR SPECIAL PREFERENCE To the Judge of Your Honorable Court: This petition respectfully represents: I. James H. Turban is the Plaintiff in this action. 2. Plaintiff filed the Complaint, commencing this action on or about March 5, 2004 3. After Defendant refused to accept service of said Complaint by U. S. Certified Mail, Defendant's Attorney accepted service of Plaintiffs Complaint on or about May 17, 2004. 4. After not receiving any responsive pleading to Plaintiffs Complaint within the prescribed 20 day period, a Notice of Praecipe to Enter Judgment by Default and Certificate of Service was filed by Plaintiff on or about May 27,2004. S. On or about June 7, 2004 Defendant filed an Answer to Plaintiffs Complaint. 6. Plaintiff then proceeded with discovery in a timely manner in an effort to proceed with his case. 7. On or about September 23,2004 Plaintiff filed a Motion to Compel Answer to Interrogatories. 8, On or about December 20, 2004, after a hearing, this Honorable Court issued an Order compelling Defendant to respond to certain interrogatories within 30 days. (See Exhibit A) 9. On or about January 25, 2005 after Defendant failed to Comply with said Order, Plaintiff filed a Motion for Sanctions. 10. On February 22, 2005, after a hearing, this Honorable Court issued an Order requiring Defendant to pay Plaintiff's attorney fees due to Defendant's failure to respond in a timely manner to the December 20, 2004 Order. (See Exhibit B) I I. Since filing the initial Complaint, Plaintiff has made every effort to file pleadings and expedite discovery requests to the Defendant in a timely manner, 12, Plaintiff has made repeated requests to Defendant to proceed in a timely manner with their pleadings and discovery, to no avail (See Exhibit's C and D), 13, Plaintiff has completed all pleadings and discovery in this action and is ready to proceed to trial. 14. This action should be given a preference on the current trial list because Plaintiff is experiencing serious financial difficulties and may loose his home, which is the subject of this suit, due to an inability to pay his mortgage, 15, Plaintiff has been diagnosed with Multiple Sclerosis since purchasing his home and is currently receiving Social Security Disability Benefits due to his inability to maintain employment. 16. Plaintiff's Social Security Disability Income is in an amount which is insufficient to pay his mortgage and meet all of his current living expenses. 17. Plaintiff has recently filed for bankruptcy in Federal Court as a result of his financial difficulties. 18. Plaintiff has notified the Defendant that he is in agreement and willing to concur in a Motion by Defendant, in Federal Court for Relief of the Stay under Subsection 362 of the U.S. Bankruptcy Code, (11 USC 362) enabling Defendant to proceed with any counterclaim she may bring. (See Attachment C) 19. To date Defendant has still not proceeded with any discovery requests or taken any other action. 20. Plaintiff is now faced with the prospect that he must sell his house in order to avoid foreclosure proceedings in the future due to his inability to pay his mortgage; however, because of this pending action, Plaintiff is unable to sell his house since the deed to the house is the subject of the dispute. NOW THEREFORE, Plaintiff requests, pursuant to Pa. Rule of Civil Procedure 214(2) that this action be given preferential position on the current trial list. ~ Date: June _, 2005 Submitted By ~~ Attorney ID Number 90994 3029 North Front Street, Suite 300 Harrisburg, PA 17IIO (717) 238-9I30 Attorney for Plaintiff VERIFICATION I, James H. Turban, Petitioner in the within action, hereby verify that the statements made in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penaIties of 18 Pa.C,S. 94904, relating to unsworn falsification to authorities. Date: June ~, 2005 rfl,H 2~~ ,./ CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Petition for Special Preference and Verification was served by depositing the same in the United States Mail, First Class, at Harrisburg, Pennsylvania, addressed as follows: Jarad W. Handelman, Esquire James Smith Dietterick & Connelly LLP 134 Sipe Avenue Hershey, P A I7033 Attorney for Defendant Valerie Zehring Date: June ~, 2005 ~~ Steven R. Snyder, Esquire Attorney ID Number 90994 3029 North Front Street, Suite 300 Harrisburg, P A I 7 I 10 (717) 238-9130 Attorney for Plaintiff JAN, 24. 2005 (MaN) 13043 COURTS Exhibit A ELF.D-C:f~'(C.~: OF TI::: 1')'x":':J,t,:'Y(.:lV . ''- ",.1,....,.._.1".." v '10[": r;r,~~~T~, c;Ot.JB.T OF COMMON PLEAS OF .U '~.J;:'€~MBE\"I;iJl:iNID JCOUNTY, PENNSYLVANIA (': ".,;::' ''''ITa'L'''''''''''"'ON - LAW oJ'''''~.:''':.~.''':": '::~.4 ,_,,~~...:t'-j : i"'C.i';l\~,';'!_\'/'.,>1U\ ,JAMES H. TURBAN, PlaintJ.ft VALERIE L. ZEHRING, Defendant 04-983 EQUITY TERM IN RE: DISCOVERY CONFERENCE ORDER OF COURT AND NOW, this 20th day of December, 2004, upon consideration of Plaintiff's Motion To Compel Answer to Interrogatories, and following a conference held in the chambers of the undersigned judge in which Plaintiff was represented by Steven R. Snyder, Esquire, and Defendant was represented by Jarad W. Handelman, Esquire, Plaintiff'::; Motion is granted to the following extent and otherwise denied: 1. Within 30 days of today'::; date Defendant shall furnish to Plaintiff's counsel any documentation tending to support Defendant's defense to Plaintiff's claim which indicates contribution::; which she made to the realty in question, including evidence of any mortgage payments; 2. Within 30 days of today's date Defendant shall furnish to Plaintiff's counsel her curriculum vitae as it relates to her educational background; 3. Within 30 days of today's date Defendant shall furnish to Plaintiff's counsel any documentation tending to support her defeose as it relates to contributions of tangible property which she made to the parties' household and/or real estate; 4. The responses of Plaintiff required hereunder shall be in verified form; 5. Any action on Plaintiff's Motion To Compel to ""..n,..n~ g I:"AGt;, i. the extent that it relates to Defendant's counterclaim is deferred on the basis of an automatic stay arising out of bankruptcy proceedings initiated by Plaintiff. By. the Court, ~. ,~ , ! ,:'-':: //1 ., I;' ji; , ,C C? .\( Q L ~esley Oler) Jr., J. ...... ,..~ , StevenR. Snyder, Esquire 3029 North Front street Suite 300 Harrisburg, FA 17110 Attorney for Plaintiff Jarad W. Handleman, Esquire 134 Sipe Avenue Hershey, PA 17033 Attorney for Defendant :mae Exhibit B cJAMES H. TURBAN, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v 04-983 EQUITY TERM VALERIE L. ZEHRING, Defendant CIVIL ACTION ... EQUITY (PARTITION) IN RE: MOTION FOR SANCTIONS ORDER OF COURT AND NOW, this 22nd day of February, 2005, upon consideration of Plaintiff's Motion for Sanctions, and following a hearing at which the evidence, in the Court's view, established that the Defendant failed to comply with the discovery Order of Court dated December 20, 2004, and that the attorney's fees testified to by Plaintiff's counsel were fair, reasonable, and necessary with respect to this matter, the Court finds that the Defendant did fail to comply "lith the Order of Court dated December 20, 2004, and the sanction imposed is that the Defendant pay Plaintiff's counsel fees in the amount of $1,200.00 within 60 days of today's date. No other relief is granted on the motion at this time, By the Court, ;,//// / i ,(/'_-4 f ! I, c /1 J. /Mesley OH2r). 1/ ' .,' ;/ J ;,7 /I c" ///1 ('it / 'Jr.,!..cJ. ~even R. Snyder, Esquire 3029 North Front Street Suite 300 Harrisburg, PA 17110 For the Plaintiff Jarad W. Handelman, Esquire 134 Sipe Avenue Humme1stown, FA 17036 For the Defendant :mae Exhibit C Page 1 of2 Steve law From: To: Sent: Subject: "Steve Snyde~' <steve_law@comcast.net> "Jarad W. Handelman" <JWH@jsdc.com> Wednesday, May 04, 2005 1 :37 PM Re: Turban v, Zehring, Docket No. No. 04-983 Steven R. Snyder Attorney at Law 3029 North Front Street, Suite 300 Harrisburg, PA 17110 (717) 238-9130 FAX (717) 238-9]56 May 3, 2005 SENT VIA E-MAIL Jarad W. Handelman, Esquire P,O. Box 650 Hershey, P A 17036 RE: Turban v. Zehring, Docket No. No. 04-983 Dear Jarad: I am in receipt of your April IS, 2005 e-mail and your April 22 letter regarding your client's inability to pay the counsel fees provided for in Judges Oler's February 22 Order. I note that you also refer to my client's bankruptcy case pending in Federal Court in your e-mail. Please be advised that I am willing to except the payment provisions contained in your letter provided there is a stipulation in the agreement that if your client is more than 7 days late in making each scheduled payment there will be a 20% late fee of$30.00 assessed. If your client is agreeable with this provision, you may draft an agreement for her signature and we can assume this matter is resolved. With regard to your statement, in your e-mail, that you can not proceed with discovery pending the resoIution of my client's federal bankruptcy case and your suggestion that I, "read the rules and figure out how to remove the stay that is in effect as a result of [my client's] filing [for bankruptcy]," please be advised that, under ~ 362 of the U.S. Bankruptcy Code, you may file a Motion for Relief of the Stay, and my client would be willing to concur with the Motion in order to proceed. My client is currently experiencing financial difficulties, as is yours, and would like to expedite a resolution to this matter and get the deed to his house back as soon as possible. In the mean time, if you forward interrogatories to me for my client to answer we are willing to answer them in an effort to proceed in a timely manner. I would also propose that if your client is. interested in making a settlement proposal, my client would be willing to consider negotiations toward that end. PIease feel free to call me if you have any questions or would Iike to discuss these matters in detail. IifR1700~ Page 2 of2 Sincerely, Steven R. Snyder, Esquire CC, James Turban 6/8/2005 Steven R. Snyder Attorney at Law 3029 North Front Street Suite 300 Harrisburg, Pennsylvania 17110 (717) 238-9130 FAX (717) 238-9156 Exhibit D Re: Turban v. Zehring, Docket No. 04-983 - Motion for Sanctions for failure to comply with Discovery Order March 5, 2004 - March 26, 2004 - March 3I, 2004 April 27, 2004 - May 27, 2004- June 7, 2004- June 7, 2004 - June 7, 2004 - June 9, 2004 - June 10, 2004 - May 10, 2004- June 9, 2004 - June I4, 2004 - Timeline of Events Plaintiffs Complaint filed and a copy mailed (regular mail) to Defendant with Notice to Plead within twenty (20) days. Plaintiff received letter from Attorney Handelman Re: improper service, and agreeing to accept service on behalf of his client Sent Acceptance of Service and copy of Complaint Acceptance of Service signed by Attorney Handelman Twenty (20) days to respond - May 17, 2004 Notice of Praecipe to Enter Judgment by Default and Certificate of Service filed by Plaintiff Praecipe for Default Judgment filed Default entered by Cumberland County Prothonotary Defendants Answer Filed Received letter from Attorney Handelman request Plaintiff to file Praecipe to Vacate Default Judgment and threatening to request reimbursement oflegal fees if he had to file request to vacate judgment. Plaintiff filed a Praecipe to Vacate Default Judgment Plaintiffs Interrogatories sent Defendant's Response to Plaintiff's Interrogatories Letter to Attorney Handelman requesting answers to unanswered question (No response to June I4 letter) September 23, 2004 - Motion to Compel Answer to Interrogatories . . December 20, 2004 - Conference with Judge Oler on Motion to Compel - December 20, 2004 - Order of Court - Require Defendant to respond within 30 days January 20, 2004 - Deadline to comply with Order January 19,2004 - Letter/ Fax from Attorney Handelman requesting additional time due to Defendant's mother's death and his not receiving the December 20,2004 Order until "after the first of the year," - (Received on Jan 20) Defendant's mother passed away on November 28, 2004 Judge Oler's Order was dictated while attorneys were present on December 20, 2004 January 24 2005 - Plaintiff sent letter to Attorney Handelman requesting his compliance with the Order January 25, 2005 - Plaintiff filed Motion for Sanctions February 2, 2005 - Response to Discovery Questions mailed Response indicates that additional information will be forthcoming Still have not received additional information PIaintiff' reasonabIe expenses, including attorney's fees, incurred in obtaining the order of compliance and the order for sanctions as provided for in Pa.R.c.P. 4019(g)(I): Draft and file Motion to CompeI Answers to Plaintiff's Interrogatories Preparation and Attendance at December 20 conference with Judge Oler Draft Motion for Sanctions Preparation and Attendance at Sanctions Hearing TotaI Cost to PIaintiff $ 450.00 300.00 300.00 150.00 $1,200.00 Pa.R.C.P. 4019(g)(1) Sanctions - Except as otherwise provided in these rules, if following the refusal, objection or failure of a party or person to comply with any provision of this chapter, the court, after opportunity for hearing, enters an order compelling compliance and the order is not obeyed, the coUrt on a subsequent motion for sanctions may, if the motion is granted, require the party or deponent whose conduct necessitated the motions or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses, including attorney's fees, incurred in obtaining the order of compliance and the order for sanctions, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust. --- o C':;.o ,-- '.O_i--) >~L_: 3 " ~ c:',) eft '- c: z - t..> ;po -:;:: C5 ~ ::r!-n rr'i~ 001 ~:t~l\'Y -'..':\c) ::i- :}~ i'>~~~ .::~ rO q ~; :-< - t..> - ~ . " # RECEIVED JUN 13 100~ JAMES H. TURBAN, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-983 EQUITY TERM v, VALERIE L. ZEHRING Defendant CIVIL ACTION - EQUITY (PARTITION) ORDER AND NOW, this ~ day of :r '''' C ,2005, it is hereby ORDERED and DECREED that the agreement of the parties reflected in the attached Stipulation are adopted and incorporated herein by reference. BY THE COURT: , . >- tn 0:; \.i"} >- <( /-...- ,~ 6 ~ tJjQ ....P..- -.-"') 9' ~ ~,c )::e ~~ g~~ U":> :::JCl.. ~ a:lU ...,.~ if :=::;, -, u.. = 0 = = '" JAMES H. TURBAN, Plaintiff v. V ALERlE L. ZEHRlNG, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA CIVIL ACTION - LAW NO. 04-983 EQUITY TERM ORDER OF COURT AND NOW, this 20th day of June, 2005, upon consideration of Plaintiff's Petition for Special Preference, the Cumberland County Court Administrator is requested to take this request into consideration when scheduling cases for the civil trial term, but it is noted that other cases may also contain exigencies. A"ven R. Snyder, Esq. 3029 North Front Street Suite 300 Harrisburg, P A 17110 J Attorney for Plaintiff tAad W. Handelman, Esq. 134 Sipe Avenue Hershey, P A 17033 Attorney for Defendant :rc BY THE COURT, u J. >. If) CI' N ;;:;> ~,: .. LlJQ - 0-"~ u:: () _-'1,..,. 1.L:t:. 0- 9~~ C> Cl ~)~ W"- C'J -'W "",",:" u.. ~- _'::J F= -, u.. "" 0 = :::5 = ..... c.:' - JAMES H. TURBAN, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW YOUTH ADVOCATE PROGRAM, INC., V ALERlE LOUISE ZEHRING, Defendants NO. 05-2906 CIVIL TERM JAMES H, TURBAN, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. CIVIL ACTION - EQUITY V ALERlE L. ZEHRING, Defendant NO. 04-983 EQUITY TERM I IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE HESS and OLER, JJ. ORDER OF COURT AND NOW, this 10th day of February, 2006, upon consideration of Defendant's preliminary objections to Plaintiff's complaint at No, 05-2906 Civil Term, and for the reasons stated in the accompanying opinion, the preliminary objections are sustained to the extent that Plaintiffs claims for negligence per se arising out of an alleged breach of the Code of Ethics contained in 49 Pa. Code 4 I ,I et seq., and out of the alleged false imprisonment of Plaintiff pursuant to the Mental Health Procedures Act, are stricken, BY THE COURT, Steven R. Snyder, Esq. 3029 North Front Street Suite 300 " HaITisburg,PA 17110 Attorney for Plaintiff Jarad W. Handleman, Esq. 134 Sipe Avenue Hershey, PA 17033 Attorney for Defendant Valerie Zehring Brit D. Russell, Esq. 600 Centerview Drive Suite 5103 Hershey, P A 17033-2903 Attorney for Defendant Valerie Zehring Michael D. Pipa, Esq. 4200 Crunis Mill Road Suite B Harrisburg, P A 17112 Attorney for Defendant Youth Advocacy Program, Inc, ~ ~ ;) .(0' cl (.. ~ JAMES H. TURBAN, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW YOUTH ADVOCATE PROGRAM, INC" V ALERlE LOUISE ZEHRlNG, Defendants NO, 05-2906 CIVIL TERM JAMES H. TURBAN, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v, CIVIL ACTION - EQUITY V ALERlE L. ZEHRlNG, Defendant NO. 04-983 EQUITY TERM IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE HESS and OLER, JJ. OPINION and ORDER OF COURT OLER, J., February 10,2006. For disposition in this civil matter, in which Plaintiff has sued a therapist who once treated two of his family members and the therapist's employer, are Defendants' preliminary objections to Plaintiffs complaint at No, 2005-2906 Civil Terml Plaintiffs complaint represents the aftermath of the failure of an alleged romantic relationship between Plaintiff and the therapist, which was entered into 1 Preliminary Objections of Youth Advocate Programs, Inc. to Plaintiffs Complaint, filed November 17, 2004 (hereinafter Youth Advocate Program's Preliminary Objections); Valerie Zehring's Preliminary Objections to Plaintiffs Complaint, filed December 7, 2004 (hereinafter Zehring's Preliminary Objections). By separate order of court, this case has been consolidated with a related claim filed by Plaintiff against Defendant Zehring at No. 2004-0983 Equity Term. See Order of Court, January 9,2006 (Hess, J.). subsequent to the conclusion of the therapeutic relationship with Plaintiffs family members. Specifically, Plaintiffs 122-page complaint, including exhibits, contains a count against the therapist and the employer for "negligence and negligence per se and professional malpractice" based upon the therapist's purported violation of an ethical provision proscribing certain sexual relationships;2 a count against the therapist and the employer for "false imprisonment" based upon a mental health commitmeJ1t of Plaintiff allegedly instigated by the therapist;] a count against the therapist and the employer for "intentional and negligent infliction of emotional distress" based upon the therapist's alleged ethical violation, her alleged act of false imprisonment, her purported removal of Plaintiffs belongings from Plaintiffs home while he was committed, and her alleged undue influence with respect to receipt of a survivorship interest in certain property of Plaintiff;4 and a count against the employer for "negligence, negligence per se and employer liability" based upon theories of negligent supervision, breach of ethics and vicarious liability5 Plaintiffs claim, as it relates to undue influence, is also the subject of his consolidated action for rescission at No. 2005-2906 Equity Term, a claim not at issue herein. The preliminary objections of the therapist consist of a demurrer to Plaintiffs ~Iaim for false imprisonment6 and a demurrer to Plaintiffs claims to the extent that they are premised upon alleged ethical violations.7 The preliminary 2 Plaintiffs Complaint, Count 2, filed September 23, 2004 (hereinafter Plaintiffs Complaint, Count ~. 'Plaintiffs Complaint, Count 3. 4 Plaintiffs Complaint, Count 4. j Plaintiff s Complaint, Count 1. 6 Zehring's Preliminary Objections, paras, 11-19. 7 Zehring's Preliminary Objections, paras. 20-51. 2 objections of the employer consist, in pertinent Pali,s of a demurrer to Plaintiffs claims to the extent that they are premised upon false imprisonment.9 Defendants' preliminary objections were argued on October 20, 2005.10 For the reasons stated in this opinion, Defendants' preliminary objections will be sustained. STATEMENT OF FACTS In reviewing a preliminary objection to a complaint 111 the nature of a demurrer, a court is to "accept[] as true all well-pleaded allegations and material facts averred in the complaint, as well as all reasonable inferences from it[.]" Filippi v, Kwitowski, 880 A.2d 711, 713 (Pa. Commw, Ct. 2005), In accordance with this standard, the pertinent facts may be summarized as follows: Plaintiff is James Henry Turban, an adult individual residing in Camp Hill, Cumberland County, Pennsylvanian Defendant Valerie Louise Zehring is an adult individual residing in Boiling Springs, Cumberland County, Pennsylvania.12 Defendant"Y outh Advocate Program, Inc., is a non-profit corporation providing mental and behavioral health services to the public and having offices in Harrisburg, Dauphin County, Pennsylvania. 13 S An aspect of these preliminary objections relating to improper venue was previously ruled upon by the Honorable Richard A. Lewis, President Judge of the Court of Common Pleas of Dauphin County, and the case was transferred to Cumberland County. Order of Court, May 4, 2005, at No, 2004-CV -4185-MM (Dauphin County), 9 Youth Advocate Program's Preliminary Objections, paras. 22-32. 10 It appears that Defendant Zehring's Preliminary Objections were not listed for argument. See Praecipe Listing Case for Argument, filed September 2, 2005. However, both Defendants' preliminary objections were briefed and argued at argument court on October 20, 2005, and both will be disposed of herein. 11 Plaintiff's Complaint, para. l. 12 Plaintiff's Complaint, para. 3. 13 Plaintiff's Complaint, para. 2. 3 Defendant Zehring, who was not a psychologist,14 provided counseling services to Plaintiffs son from February 1999 to March 22,2000, in her capacity as an employee of Defendant Youth Advocate Program. IS She also provided counseling services on a private basis to Plaintiffs wife before her death on May 13, 2000,16 Subsequent to these counseling services, in July of 2000, a romantic relationship developed between Plaintiff and Defendant Zehring.17 Defendant Zehring left the employ of Defendant Youth Advocate Program in June of 2001,18 This romantic relationship between Plaintiff and Defendant Zehring was unstable.19 However, by instruments dated July 8, 2002, Plaintiff (a) conveyed an interest in his home (joint tenancy with right of survivorship) to Defendant Zehring,20 (b) appointed her his attorney-in-fact,21 and (c) made her a beneficiary of his wiU22 With respect to the realty conveyance, Defendant "used undue influence, fraud, deception, and the promise to marry Plaintiff, taking advantage of her special relationship with the Plaintiff and his family to induce Plaintiff to convey one half of Plaintiffs house and property to her in joint tenancy with right of 14 Under 63 Pa, C.S. 9 1206(a)(2), a person can be licensed as a psychologist only after the person, inter alia, holds a degree of Doctor of Psychology, Doctor of Philosophy in psychology, Doctor of Education in psychology, or other such doctoral degree as is approved by the State Board of Psychology, Act of March 23, 1972, P,L. 136, g6, as amended, 63 Pa. C.S. gI206(a)(2), Defendant Zehring, whose job title is listed as a Behavioral Specialist Consultant, holds only a master's degree. See Plaintiffs Complaint, Ex. A, at 3. Therefore, under Pennsylvania law, Defendant Zehring cannot possibly be a licensed psychologist. 15 Plaintiff's Complaint, para. 6. 16 Plaintiff's Complaint, para. 7, 10, 17 Plaintiff's Complaint, para. II. IS Plaintiff's Complaint, para. 8. 19 Plaintiff's Complaint, para. 16. '0 Plaintiff's Complaint, Ex. B. 21 Plaintiff's Complaint, Ex. D. n Plaintiff's Complaint, Ex. C.l 4 survivorship,,,23 The validity of this conveyance, as previously mentioned, is the subject of a consolidated action filed by Plaintiff against Defendant Zehring at No. 04-983 Equity Term. On. January I, 2003, the romantic relationship between Plaintiff and Defendant Zehring ended, and she moved out of the house which they owned24 Six months later, she "arranged the involuntary committal of Plaintiff into a psychological ward at Holy Spirit Hospital, Camp Hill, Pennsylvania, for one week, against Plaintiffs will [and then] successfully recommended to the hospital that they continue to keep Plaintiff against his will for an additional week.,,25 The commitment occurred pursuant to Sections 302 and 303 of the Mental Health Procedures Act,26 and the complaint does not allege that Defendant Zehring made any false statement in cOilllection with the commitment, that she acted with malice, or that the commitment was procedurally defective, However, during the two-week period of Plaintiffs involuntary treatment, Defendant Zehring "removed most of Plaintiffs furniture and other belongings" from the house.27 Plaintiffs complaint alleges that the romantic relationship between Plaintiff and Defendant Zehring represented an ethical violation on her part, in the following particulars: 27. Section 41.83 of Title 49 of the Pennsylvania Code, regulating the practice of Psychology provides as follows: 941.83. Sexual intimacies with a former client/patient, or an immediate family member of a former client/patient. (a) Sexual intimacies between a psychologist and a former client/patient, or an immediate 23 Plaintiffs Complaint, para. 17. 24 Plaintiffs Complaint, para. 21. 25 Plaintiff's Complaint, para. 23. 26 Plaintiff's"Complaint, Ex, E; Act of July 9, 1976, P.L. 817, 9302, as amended, 70 Pa. C.S. 997302-7303. 27 Plaintiff's Complaint, para. 25. 5 -----1 family member of a former client/patient are prohibited for at least 2 years following the termination of the professional relationship, and then only under very limited circumstances. (b) Following the passage of the 2-year period, psychologists who engage in sexual intimacies with a former client/patient, or an immediate family member of a former client/patient shall have the burden of demonstrating that there has been no exploitation of the client/patient in light of all relevant factors, including: (1) The amount of time that has passed since the professional relationship terminated. (2) The nature and duration of the therapy. (3) The circumstances of termination. (4) The client/patient's personal history, for example, unique vulnerabilities. (5) The client/patient's current mental status, (6) Statements or actions made by the psychologist during the course of therapy suggesting or inviting the possibility of a post-termination sexual or romantic relationship with the client/patient. (7) The likelihood of adverse impact on the client/patient and immediate family members of the client/patient. 28 Plaintiffs complaint further alleges that the romantic relationship between Plaintiff and Defendant Zehring represented a breach of a supervisory duty on the part of Defendant Youth Advocate Program in the following respect: 28. Section 41.32 of Title 49 of the Pennsylvania Code, regulating the practice of Psychology, establishes requirements for the supervision of employees providing counseling to clients/patients and reads in relevant part as follows: 9 41.32. Standards for supervisors. 28 Plaintiffs Complaint, para. 27. 6 To insure the quality of supervised experience, the Board requires that supervisors and those to whom supervisory responsibilities are delegated, ,.comply with the standards in paragraphs (I )-(19). * * * (5) The supervisor shall be responsible for the supervisee's services to each client/patient. (6) The supervisor shall be empowered to interrupt or terminate the supervisee's activities in providing services to a client/patient and, if necessary, to terminate the supervisory relationship. * * * (10) The supervisor shall review issues of practice and ethics with the supervisee. (11) The supervisor shall maintain notes or records of scheduled supervisory sessions. (12) The supervisor shall observe client/patient sessions of the supervisee or review verbatim recordings of these sessions on a regular basis, (13) In regularly scheduled supervisory meetings, the supervisor shall discuss the supervisee's level of work - for example, the supervisee's areas of competence and areas of needed improvement. (14) The supervisor shall provide to the supervisee recommendations bearing on further development, shall encourage the supervisee to read widely in the professional literature and shall help the supervisee gain a level of skill necessary for independent practice. (15) The supervisor shall prepare written evaluations or reports of progress which shall delineate the supervisee's strengths and weaknesses, These evaluations or reports shall 7 be discussed with the supervIsee on at least a quarterly basis. 29 Finally, Plaintiff's complaint asserts the following with respect to ethical considerations: 29. Under Section 41.5 8( c) of Title 49 of the Pennsylvania Code, which regulates the State Board of Psychology, "the [psychologist] supervisor shall acquaint the employee with the Code of Ethics found in ~ 41.61 (relating to Code of Ethics) and shall, under that section, be accountable for ethical violations by the employee." (Emphasis supplied). 30. The Code of Ethics found at Section 41.61 of Title 49 of the Pennsylvania Code provides that "[a]s owners or participants in ownership of a professional corporation, psychologists retain full professional liability to persons who, in the course of a professional relationship, suffer personal injury by reason of their actions or omissions." 31. The Code of Ethics set forth in Section 4 1.61 of Title 49 of the Pennsylvania Code states clearly that "[p]sychologists are continually cognizant of their own needs and their inherently powerful position vis a vis clients, students and subordinates, in order to avoid exploiting their trust and dependency. Psychologists make every effort to avoid dual relationships with clients or relationships which might impair their professional judgment or increase the risk of exploitation. Examples of dual relationships include treating employees, supervisees, close friends or relatives. Sexual intimacies with clients are unethical. ,,30 DISCUSSION Demurrers in general. Under 'Pennsylvania Rule of Civil Procedure 1028(a)(4), a pleading which is legally insufficient to set forth a cause of action is susceptible to a preliminary objection. A demurrer "is properly sustained. , . when, accepting as true all well-pleaded allegations and material facts averred in the complaint, as well as all reasonable inferences from it, and resolving all doubt in favor of ovenuling the demurrer, the law states with 29 Plaintiffs Complaint, para. 28. 10 Plaintiff s Complaint, paras. 29-3 I. 8 certainty that no recovery is possible. Filippi v. [(witowski, 880 A.2d 711, 713 (Pa. Commw, Ct. 2005). In this regard, it is well settled that "[p ]leadings will be construed against a pleader on the theory that he or she has stated his or her case as best he or she can[.]" 2 Goodrich-Amram 2d 1019:7, at 249 (2001). False imprisonment. The process for involuntary commitment under the Mental Health Procedures Act has been summarized as follows: Any person. . , who is mentally ill to a degree describable as severely mentally disabled and who is in need of treatment may be subjected to involuntary examination and treatment. . . . Emergency involuntary commitment for up to 120 hours is available without court involvement at the instance of a physician or county administrator, among others, for one in need of immediate treatment; seizure of the individual for purposes of examination at a facility may be effected with or without a warrant. The 120-hour period may be extended for up to twenty days [pursuant to Section 303 ofthe Act] upon (a) an application filed by the treatment facility with the court of common pleas, (b) appointment of counsel in the case of an indigent, (c) an informal hearing within twenty-four hours of the application's filing, conducted by the court or a mental health review officer, and (d) a certification by the court or officer for extended involuntary treatment. A certification by a mental health review officer is reviewable by the court upon ,. 31 petitIOn. "The elements of false imprisonment are (1) the detention of another person, and (2) the unlawfulness of such detention." Renk v, City of Pittsburgh, 537 Pa. 68, 76, 641 A.2d 289,293 (1994). In the present case, the complaint contains no averments from which it could be concluded that the alleged subjection of Plaintiff to involuntary treatment under Section 303 of the Mental Health Procedures Act was procedurally 31 Oler, Pennsylvania Criminal Law: Defendant's Mental State S4.4, at 58-62 (Michie Co. 1986) (footnotes omitted); see also Act of July 9, 1976, P.L. 817, SS301-302, as amended, 70 Pa. C.S. S*7301-7303. 9 defective or in any way incompatible with the applicable law, Accordingly, Defendants' demurrers with respect to Plaintiff's false imprisonment claims must be sustained. Negligence per se. Negligence per se is "conduct that may be treated as negligence without further argument or proof as to the particular surrounding circumstances." Gravlin v. Fredavid Builders & Developers, 450 Pa. Super. 655, 661,677 A.2d 1235, 1238 (1996), As a general rule, codes of ethics are not seen as providing private causes of action against those professionals who are subject to them. See, e.g., Heimbecker v. Esteve, 49 Lehigh Co. L.J. 217,223 (Lehigh Co. August 14, 2000) (Wallitsch, 1.). Violations of such codes normally are punishable by disciplinary measures, including loss of professional licensure, ld. Furthermore, in the present case, the ethics provisions, relating to romantic relationships, relied upon by Plaintiff do not by their terms govern the behavior of individuals who are not psychologists. Finally, the class of persons intended to be protected by the provisions in question would appear to be patients treated by the psychologist, not members of his or her family. Under these circumstances, the court finds itself in agreement with Defendants' position that Plaintiffs complaint can not be sustained to the extent that it asserts claims based upon a theory of negligence per se, For the foregoing reasons, the following order will be entered: ORDER OF COURT AND NOW, this 10til day of February, 2006, upon consideration of Defendant's preliminary objections to Plaintiff's complaint at No. 05-2906 Civil Term, and for the reasons stated in the accompanying opinion, the preliminary objections are sustained to the extent that Plaintiff's claims for negligence per se arising out of an alleged breach of the Code of Etllics contained in 49 Pa. Code 941, I et seq., and out of the alleged false imprisonment of Plaintiff pursuant to the Mental Health Procedures Act, are stricken. 10 BY THE COURT, J. Weslev Oler, Jr. J. Wesley Oler, Jr., J. Steven R. Snyder, Esq. 3029 North Front Street Suite 300 Harrisburg, P A 17110 Attorney for Plaintiff Jarad W. Handleman, Esq. 134 Sipe Avenue Hershey, P A 17033 Attorney for Defendant Valerie Zehring Brit D. Russell, Esq, 600 Centerview Drive Suite 5103 Hershey, P A 17033 Attorney for Defendant Valerie Zehring Michael D, Pipa, Esq. 4200 Crums Mill Road Suite B Harrisburg, P A 17112 Attorney for Defendant Youth Advocacy Program, Inc. II v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO, 05-2906-MM MEDICAL MALPRACTICE JAMES H. TURBAN, Plaintiff, YOUTH ADVOCATE PROGRAM, INC., VALERIE LOUISE ZEHRING, Defendants. CIVIL ACTION - AT LAW .. JURY TRIAL DEMANDED v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLV~NIA CIVIL ACTION - LAW JAMES H. TURBAN, Plaintiff, VALERIE LOUISE ZEHRING, / Defendants, No, 2004-0983 PRAECIPE FOR WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Kindly withdraw the enter the appearance of the undersigned on behalf of Defendant Youth Advocate Program, Inc, in the above captioned case, DATE: f:/,ff)).. BY: ~ n;:t;)A MICHAEL~RE LD, NO, 53624 PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter the appearance of the undersigned on behalf of the Defendant Youth Advocate Program in the above captioned case. DATE:~'/~' 00 BY: CRAIG A. ST LD. NO, 15907 4200 Crums Mill Ro Harrisburg, PA 17112 ~s ~ \' ! ~ ~~ 1:' ," \)J ~