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HomeMy WebLinkAbout10-0364 LAW OFFICES OF PETER J. RUSSO, P.C. Attorneys for Pl@grtifl?- ? BY: Elizabeth J. Saylor, Esquire PA Supreme Court ID: 200139 5006 E. Trindle Road, Suite 100 Mechanicsburg, PA 17050 Telephone: (717) 591-1755 Facsimile: (717) 591-1756 Email: Isaylor(aD-Didaw.com MIGNON L. HOLSTEIN Plaintiff v. c; - <m IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW JAY E. HOLSTEIN NO. 2010- 3(o4 CIVIL TERM Defendant IN DIVORCE NOTICE TO DEFEND AND CLAIM RIGHTS You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take prompt action. You are warned that if you fail to do so, the case may proceed without you and a decree of divorce or annulment may be entered against you by the court. A judgment may also be entered against you for any other claim or relief requested in these papers by the plaintiff. You may lose money or property or other rights important to you, including custody or visitation of your children. When the ground for the divorce is indignities or irretrievable breakdown of the marriage, you may request marriage counseling. A list of marriage counselors is available in the Office of the Prothonotary at Cumberland County Courthouse, 1 Courthouse Square, Carlisle, Pennsylvania, 17013. IF YOU DO NOT FILE A CLAIM FOR ALIMONY, DIVISION OF PROPERTY, LAWYER'S FEES OR EXPENSES BEFORE A DIVORCE OR t?l r ;=j r n 3q1. 5o Pb iATT'`/ ek*st4sq Rx ?.s?aga ANNULMENT IS GRANTED, YOU MAY LOSE THE RIGHT TO CLAIM ANY OF THEM. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 717-249-3166 1-800-990-9108 AMERICANS WITH DISABILITIES ACT OF 1990 The Court of Common Please of Cumberland County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. 2 LAW OFFICES OF PETER J. RUSSO, P.C. BY: Elizabeth J. Saylor, Esquire PA Supreme Court ID: 200139 5006 E. Trindle Road, Suite 100 Mechanicsburg, PA 17050 Telephone: (717) 591-1755 Facsimile: (717) 591-1756 Email: lsaylor(cD-pjrlaw.com MIGNON L. HOLSTEIN Plaintiff V. JAY E. HOLSTEIN Defendant Attorneys for Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2010. 3(J q CIVIL TERM IN DIVORCE COMPLAINT UNDER SECTION 3301(c) OR 3301(d) OF THE DIVORCE CODE 1. Plaintiff is Mignon L. Holstein, an adult individual who has resided at 479 Adam Lane, Mechanicsburg, Cumberland County, Pennsylvania since on or about June 19, 2009. 2. Defendant is Jay E. Holstein, an adult individual who has resided at 479 Adam Lane, Mechanicsburg, Cumberland County, Pennsylvania since on or about June 19, 2009. 3. Plaintiff and Defendant have been bona fide residents in the Commonwealth for at least six months immediately previous to the filing of this Complaint. 4. Plaintiff and Defendant were married on July 4, 2000, in Las Vegas, Clark County, Nevada. 5. Plaintiff and Defendant separated on October 11, 2009. 3 6. There have been no prior actions of divorce or for annulment between the parties. 7. The marriage is irretrievably broken. 8. Plaintiff has been advised that counseling is available and Plaintiff may have the right to request that the court require the parties to participate in counseling. COUNT I -- DIVORCE 9. The prior paragraphs of this Complaint are incorporated by reference as though fully set forth herein. 10. Plaintiff avers that the marriage between the parties is irretrievably broken. 11. Plaintiff requests the court to enter a decree in divorce. WHEREFORE, Plaintiff prays that a decree be entered in favor of the Plaintiff and against Defendant as follows: That a decree in divorce be entered dissolving the marriage between the two parties. COUNT II - EQUITABLE DISTRIBUTION 12. The prior paragraphs of this Complaint are incorporated by reference as though fully set forth herein. 13. Plaintiff and Defendant have acquired marital property as defined by the Divorce Code, which is subject to equitable distribution pursuant to Section 3502 (a) of the Divorce Code. 4 14. Plaintiff and Defendant have been unable to agree to the equitable distribution of said property, as of the date of filing this Complaint. 15. Plaintiff requests the Court to equitably divide, distribute or assign the marital property between the parties without regard to marital misconduct in such proportion as the Court deems just after consideration of all relevant factors. WHEREFORE, Plaintiff prays that a decree be entered in favor of the Plaintiff and against Defendant as follows: The Court enter an order of equitable distribution of marital property pursuant to Section 3502(a) of the Divorce Code. LAW OFFICES OF PETER J. RUSSO, P.C. Date: Attorneys for I iff Peter J. Russo, Esquire ID # 72897 .soElizabeth J. Saylor, Esquire D # 200139 5006 E. Trindle Road, Suite 100 Mechanicsburg, PA 17050 PH: (717) 591-1755 FX: (717) 591-1756 5 VERIFICATION I, Mignon L. Holstein, verify that the statements made in the foregoing document(s) are true and correct. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. Date: Mign L /Holstein 6 ~. LAW OFFICES OF PETER J. RUSSO, P.C. Attorneys fo~,Plap#iff BY: Elizabeth J. Saylor, Esquire C= ~ ~ PA Supreme Court ID: 200139 -~~~ ' ``" _ ~' `r' 5006 E. Trindle Road, Suite 100 -_ "" N ~~-`-'~y ~ ~±`Y Mechanicsburg, PA 17050 ~ ~~ - -' ~~_ --, Telephone: (717) 591-1755 _ ~°'` ~ ~ - =_ ;fem Facsimile: (717) 591-1756 . ; Email: Isaylor(a~pirlaw.com =f ~- ~: MIGNON L. HOLSTEIN IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION -LAW JAY E. HOLSTEIN N0.2010- ~~ CIVIL TERM Defendant IN DIVORCE ACCEPTANCE OF SERVICE accept service of the Divorce Complaint on behalf of Jay E. Holstein and certify that I am authorized to do so. Dated: J// ~~~~ %~~- Theresa Barrett Male 513 N. 2"d Street Harr'sburg, PA 17101 LAW OFFICES OF PETER J. RUSSO, P.C. Attorneys for Plaintiff BY: Elizabeth J. Saylor, Esquire PA Supreme Court ID: 200139 5006 E. Trindle Road, Suite 100 ^, Mechanicsburg, PA 17050 ~' ~' ` Telephone: (717) 591-1755 -~ ~ ~ :Y ~ --{ ~, ~ `~~ Facsimile: (717) 591-1756 f -c~,~, Email: lsaylor ,pjrlaw.com <<~ ~ ~ -r?;. MIGNON L. HOLSTEIN IN THE COURT OF COMMON PLEASE ='= ~ ' -~-, Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA '~~' ~ -,.' ~ ; --~ v. CIVIL ACTION -LAW JAY E. HOLSTEIN N0.2010-364 CIVIL TERM Defendant IN DIVORCE STIPULATED PROPERTY SETTLEMENT AGREEMENT Txis AGxEEMENT is hereby made and entered into this ZD ~ da of Y J C\`nU1 QC ~ 2010, by and between MIGNON L. HOLSTEIN (hereinafter "Wife") and JAY E. HOLSTEIN (hereinafter "Husband") Witnesseth: Whereas, the parties hereto are Husband and Wife, having been married on July 4, 2000; Whereas, marital differences and difficulties have arisen between the parties; Whereas, the parties separated on October 11, 2009 (hereinafter "Separation Date") and intend to continue to live apart and desire to forever completely settle, separation of their marital and non-marital, real and personal, belonging to either and/or both of the parties hereto and all other Page 1 of 25 MLH ,~ !~~~ JEH f rights, entitlements, benefits, and privileges involved between the parties hereto arising directly or indirectly out of the marriage relationship; Whereas, Wife is represented by Elizabeth J. Saylor, Esquire of the Law Offices of Peter J. Russo, P.C.; Whereas, Husband is represented by Theresa Barrett Male, Esquire; Whereas, the parties have had adequate time and opportunity to consult with legal counsel; Whereas, both parties acknowledge that they are satisfied with any legal advice received and they understand the full importance of the Agreement they are entering into; and Now, therefore, the parties, in consideration of the foregoing premises, and the mutual promises and undertakings hereinafter set forth, agree as follows: 1. RIGHT TO LIVE SEPARATE It shall be lawful for Husband and Wife at all times hereinafter to live separate and apart from each other and to reside from time to time at such place or places as he and she shall respectively deem fit, free from any control, restraint or interference, direct or indirect, by each other. The foregoing provisions shall not be taken to be any admission on the part of either Husband or Wife of the lawfulness or unlawfulness of the causes leading to their living apart. 2. FREEDOM FROM INTERFERENCE Each party shall be free from interference, authority and contact by the other as if he or she were single and unmarried except as necessary to carry out provisions of this Agreement. Neither parry shall harass the other or attempt to endeavor to harass the other, nor compel the other to Page 2 of 25 MLH~~~ JEH cohabit with the other, or in any way malign the other, nor in any way interfere with the peaceful existence, separate and apart from the other. 3. DISTRIBUTION OF VEHICLES a. Wife shall assume all payments, including all loan payments, insurance and repair bills connected with the 2009 BMW currently in her name and possession. With respect to this vehicle, Husband agrees that Wife shall retain possession of and retain as her sole and separate property the aforementioned vehicle with all responsibility for payment of any outstanding indebtedness thereon, free of any and all right, title, claim or interest of Husband. Wife shall indemnify and hold Husband and his property harmless from any and all liability, cost or expense, including actual attorney's fees, incurred in connection with any vehicle belonging to Wife by virtue of this paragraph. b. Husband shall assume all payments, including insurance and repair bills connected with the 2006 GMC Sierra currently in his name and possession. With respect to this vehicle, Wife agrees that Husband shall retain possession of and retain as his sole and separate property the aforementioned vehicle with all responsibility for payment of any outstanding indebtedness thereon, free of any and all right, title, claim or interest of Wife. Husband shall indemnify and hold Wife and her property harmless from any and all liability, cost or expense, including actual attorney's fees, incurred in connection with any vehicle belonging to Husband by virtue of this paragraph. MLH JEH Page 3 of 25 4. ASSUMPTION OF MARITAL DEBT The parties have outstanding real estate debbresponsibilities, which shall be assigned as set forth in Paragraph 6 below, but aside therefrom the parties hereto covenant that they are not aware of any further debt outstanding that is held in the name of both Husband and Wife. Except as otherwise specifically set forth herein, each party shall be responsible for the balance of any debt held in their own personal name, regardless of when said debt was incurred (hereinafter "Personal Debts"). With respect to the Personal Debts, the party in whose name the debts is held shall have all responsibility for payment of any outstanding indebtedness and shall indemnify and hold the other party and his or her property harmless from any and all liability, cost or expense, including actual attorney's fees and or tax consequences regarding the Personal Debts and/or any settlement and/or forgiveness amounts incurred in connection with any Personal Debts. It is specifically agreed by the parties that any payment or obligation due under this Agreement shall not be dischargeable in bankruptcy. 5. DISTRIBUTION AND RELEASE OF MARITAL DEBT With the exception of liens against motor vehicles and those set forth in paragraph 4, the parties agree: a. Wife assumes full responsibility for any indebtedness which she has contracted or incurred in her name, alone or jointly, after the Separation Date. Wife represents and warrants to Husband that, since the Separation Date, she has not contracted or incurred any debt or f Page 4 of 25 MLH ,~ / V JEH liability, for which Husband or his Estate might be responsible, and shall indemnify and hold Husband harmless from any and all claims or demands made against his or his Estate by reason of debts or obligations incurred by Wife and/or assumed herein. b. Husband assumes full responsibility for any indebtedness which he has contracted or incurred in his name, alone or jointly, after the Separation Date. Husband represents and warrants to Wife that, since the filing of Separation Date, he has not contracted or incurred any debt or liability, for which Wife or her Estate might be responsible, and shall indemnify and hold Wife harmless from any and all claims or demands made against her or her Estate by reason of debts or obligations incurred by Husband and/or assumed herein. 6. MARITAL RESIDENCE AND CONTENTS MARITAL RESIDENCE During the course of this marriage, the parties resided at the marital residence located at 479 Adam Lane Mechanicsburg, Pennsylvania, 17050 (hereinafter "Marital Residence"). Both parties agree as follows with respect to the Marital Residence: a. The Marital Residence shall remain in the same condition, and inclusive of the same fixtures, appliances, parts and personal property as on the Separation Date, except as stated specifically otherwise herein or as mutually agreed in writing by both parties hereto; b. Wife shall vacate and provide Husband exclusive possession of the Marital Residence, on or before the Moving Date as defined within this Paragraph 6; c. Husband and Wife agree that the Marital Residence shall be sold by Husband as Page 5 of 25 MLH JEH soon as possible in good faith and within a reasonable time period, with consideration given to the current real estate market; d. Husband and Wife shall simultaneously herewith execute the proposed Listing Contract with Greg Rothman of RSR Realtors for the sale of the Martial Residence. Wife shall, immediately thereafter, execute the Irrevocable Specific Power of Attorney, attached as Appendix 1 in favor of Husband to allow Husband to only market for sale and transfer Wife's ownership interest in the Marital Residence; e. Husband shall, upon the Effective Date be solely responsible for the Marital Residence, including, but not limited to: a. The sale of the Marital Residence and any and all responsibilities and costs related thereto; and b. Payment of any outstanding indebtedness thereon, including, but not limited to the mortgage, insurance, taxes, and utilities regarding the Marital Residence from the Effective Date forward, free of any and all right, title, claim or interest of Wife. Husband shall indemnify and hold Wife and her property harmless from any and all liability, cost or expense, including actual attorney's fees, incurred in connection with the Marital Residence. Husband shall continue to pay the joint mortgage, the real estate taxes and the homeowner's insurance from the MLH JE Page 6 of 25 prior house sale proceeds until the Marital Residence is sold, or the funds are depleted, whichever occurs first. f. Husband shall be entitled to any and all profit from the sale of the Marital Residence, free of any and all right, title, claim or interest of Wife. CONTENTS AND PERSONAL PROPERTY Husband and Wife agree that Wife shall have, free of any and all right, title, claim or interest of Husband, all of the property set forth on Exhibit A and Exhibit B hereto, which are incorporated herein, and said property shall remain in the same condition as of the Effective Date. Wife shall vacate the Marital Residence on or before January 31, 2010 (hereinafter "Moving Date") and shall take with her all of the property set forth on Exhibit A. Husband and Wife agree that Wife's property set forth on Exhibit B shall remain at the Marital Residence until the property is sold. Within ten (10) days of receiving confirmation of the Settlement Date, Husband shall notify Wife`s counsel via email of the Settlement Date so that Wife may, at a mutually agreed upon time prior to the Settlement Date, retrieve the property set forth on Exhibit B. Wife shall bear all costs and expenses incurred in her retrieval of the items identified on Exhibit B. Husband shall send the email to lsaylor(a~pjrlaw.com and shall copy his counsel at tbm(a~tbmesauire.com. Husband and Wife agree that Husband shall retain, free of any and all right, title, claim or interest of Wife, all personal property in the Marital Residence and on the Marital Residence premises, not set forth on Exhibit A and Exhibit B hereto, including, but not limited to the English setter, Buddy, and the partial china set which belonged to Husband's grandmother. Page 7 of 25 MLH ~~ JEH ~ From the Effective Date forward, Wife shall, at her sole discretion, attain the assistance of her sister and female friends to prepare for the Moving Date. On the Moving Date Wife shall, at her sole discretion, have the assistance of her family and friends. Wife shall provide Husband with forty-eight (48) hours notice via email of the Moving Date and time and shall further copy both counsel via email at the following addresses: lsaylor(cr~,pjrlaw.com and tbm~tbmesc~uire.com. 7. MISCELLANEOUS PROPERTY -PERSONAL AND MARITAL It is further agreed that both Husband and Wife shall retain as his or her own any and all personal effects, clothing, personal jewelry, and items which either party acquired before marriage, except that the parties hereby agree that they will exchange Husband's wedding band for Wife's engagement ring on or before the Moving Date, i.e., the engagement ring shall become Husband's sole and separate property and the wedding band shall become Wife's sole and separate property. The parties further agree that any property not assigned in this Agreement as marital or non-marital property will be deemed the property of the physical possessor of said property at the end time of the Moving Date as defined within Paragraph 6. 8. RETIREMENT ACCOUNTS and OTHER INTERESTS The parties shall keep, free and clear of claims from the other party all IRA's, 401k's, other retirement accounts and any other accounts, pensions, benefits, investments and interests which are held in their sole name as personal property and not otherwise herein assigned. Wife expressly waives and relinquishes all claims in and to the marital portion of Husband's State Employees' Retirement System defined benefit plan, the increased value of Husband's pre-marital accounts, and Page 8 of 25 MLH '~ JEH all accounts and investments which Husband acquired during the marriage. Husband expressly waives and relinquishes all claims in and to the marital portion of Wife's retirement accounts, the increased value of Wife's pre-marital accounts, and all accounts and investments which Wife acquired during the marriage. 9. EQUITABLE DISTRIBUTION PAYMENT In exchange for the promises set forth herein, Husband agrees to pay to Wife, as and for equitable distribution, the sum of forty thousand dollars ($40,000.00), which shall be paid as follows: (1) fifteen thousand dollars ($15,000.00) shall be paid on or before the Moving Date, (2) twenty thousand dollars ($20,000.00) shall be paid within thirty (30) days of settlement on the sale of the Marital Residence, and (3) five thousand dollars ($5,000.00) shall be paid within five (5) years from the Effective Date. It is understood by the parties, and the parties agree, that Husband's equitable distribution payment shall not constitute income to Wife for support purposes, and shall not be treated as alimony by either party. 10. JOINT ACCOUNTS Within fourteen (14) days of the Effective Date of this Agreement, the parties shall terminate all joint bank and charge accounts, credit card accounts and any other joint accounts and each party shall take those steps necessary to have the other removed as a responsible party from such accounts. The parties further specifically agree that all bank, savings, cash and checking accounts shall become the sole property of the party named on the account, to which the other party hereby waives, relinquishes and releases any and all past, present or future right, title, claim and MLH ,L JEH Page 9 of 25 interest thereto and shall be indemnified and his/her property held harmless from any and all past, present or future liability, cost or expense, including actual attorney's fees, related to and/or incurred by the account holder in connection with said account. 11. TAX LIABILITY The parties have negotiated this Agreement with the understanding that the property transfers described in this Agreement fall within the provisions of section 1041 of the Internal Revenue Code, and as such will not result in the recognition of any gain or loss upon the transfer by the transferor. Each party promises not to take any position with respect to the adjusted basis of the property assigned to him or her with respect to any other issue which is inconsistent with the position set forth in the preceding sentence on his or her Federal or State income tax return. 12. POST SEPARATION PROPERTY Wife forever gives up all rights to any property, house, vehicle or other major or minor possession, purchased by, given to, or otherwise acquired by Husband after the Separation Date; Husband in the same manner forever gives up all rights to any property, house, vehicle or other major or minor possession, purchased by, given to, or otherwise acquired by Wife after the Separation Date. 13. MUTUAL RELEASE Subject to the provisions of this Agreement, each party waives his or her right to alimony and any further distribution of property inasmuch as the parties hereto agree that this Agreement provides for an equitable distribution of their marital property in accordance with Pennsylvania's Page 10 of 25 MLH ' JE Divorce Code. Subject to the provisions of this Agreement, each party has released and discharged, and by this Agreement does for himself or herself, and his or her heirs, legal representatives, executors, administrators and assigns, release and discharge the other of and from all causes of action, claims, rights or demands whatsoever in law or equity, which either of the parties ever had or now has against the other, except any or all causes of action for divorce and except any or all caused of action for any breach of any provision of this Agreement. a. Not later than one hundred (100) days following service of the Divorce Complaint or within seven (7) days of the Effective Date, whichever is later, both Husband and Wife shall have executed an Affidavit consenting to the entry of a final degree in divorce. Further both parties shall execute a Waiver of Notice of Intention to Request Decree under Section 3301(c) of the Divorce Code of 1980, as amended. b. Wife shall cause the Affidavits and Waivers to be filed of record and the divorce finalized. c. The right to request counseling is hereby waived by the parties. Page 11 of 25 MLH ~ ~ Y a JE 14. ALIMONY The parties herein acknowledge that by this Agreement they have each respectively secured and maintained a substantial and adequate fund with which to provide themselves sufficient financial resources to provide for their comfort, maintenance and support, in the station of life in which they are accustomed. Wife and Husband do hereby waive, release and give up any rights they may respectively have against the other for alimony, alimony pendente lite, support or maintenance. It shall be from the date of this Agreement the sole responsibility of each of the respective parties to sustain themselves without seeking any support from the other parry. 15. ALIMONY PENDENTE LITE COUNSEL FEES AND EXPENSES Both parties hereby acknowledge and accept that the provisions of this Agreement providing for the equitable distribution of marital property are fair, adequate and satisfactory to them. Both parties agree to accept the provisions of this Agreement in lieu of and in full and final settlement and satisfaction of all claims and demands that either may now or hereafter have against the other for alimony pendente lite, counsel fees ~}3` and expenses during and after the commencement of any divorce proceeding between the parties. 16. INCOME TAX RETURNS Husband and Wife agree to file joint tax returns in 2010 for the 2009 tax year and shall file individual tax returns for each year thereafter. Both Husband and Wife agree that any joint tax returns filed shall be prepared by a mutually agreed upon individuaUagency and that the parties will share equally said costs. Any refund and/or debt owed to or paid by any taxing authority for the Page 12 of 25 MLH ~ ~~ JEH 2009 tax year as a result of Wife's income and/or filing status, shall be the sole responsibility and/or property of Wife to which Husband hereby waives any interest therein, and Wife shall indemnify and hold Husband and his property harmless from any and all liability, cost or expense, including actual attorney's fees, incurred in connection therewith. Any refund andlor debt owed to or paid by any taxing authority for the 2009 tax year as a result of Husband's income and/or filing status, shall be the sole responsibility and/or property of Husband to which Wife hereby waives any interest therein, and Husband shall indemnify and hold Wife and his property harmless from any and all liability, cost or expense, including actual attorney's fees, incurred in connection therewith. Any refund and/or debt not assignable as provided herein, shall be divided equally between the parties. 17. WAIVER OF CLAIMS AGAINST ESTATES Except as herein otherwise provided, each party may dispose of his or her property in any way, and each party hereby waives and relinquishes any and all rights he or she may now have or hereafter acquire, under the present or future laws of any jurisdiction, to share in the property or the estate of the other as a result of the marital relationship, including, without limitation, dower, curtsey, statutory allowance, widow's allowance, right to take intestacy, right to take against the will of the other, and right to act as administrator or executor of the other's estate. Each will, at the request of the other, execute, acknowledge and deliver any and all instruments which may be necessary or advisable to carry into effect this mutual waiver and relinquishment of all such interests, rights and claims and both parties will revoke prior wills or testamentary documents. Page 13 of 25 MLH L / Y JEH 18. AGREEMENT NOT PREDICATED ON DIVORCE It is specifically understood and agreed by and between the parties hereto and each of the said parties does hereby warrant and represent to the other, that the execution and delivery of this Agreement is not predicated upon nor made subject to any agreement for institution, prosecution, defense, or for the non-prosecution or non-defense of any action for divorce; provided, however, that nothing contained in this Agreement shall prevent or preclude either of the parties hereto from commencing, instituting or prosecuting any action or actions for divorce, either absolute or otherwise, upon just, legal and proper grounds; nor to prevent either party from defending any such action which has been, may or shall be instituted by the other party, or from making any just or proper defense thereto. 19. BREACH AND ENFORCEMENT If either party hereto breaches any of the provisions of this Agreement, the other party shall have the right to bring any actions or actions in law or equity for such breach, and the breaching party shall be responsible for the payment of all costs and reasonable legal fees incurred by the other party in enforcing his or her rights under this Agreement. It is expressly understood and agreed by and between the parties hereto that this Agreement may be specifically enforced by either party in Equity, and the parties hereto agree that if an action to enforce this Agreement is brought in Equity by either party, the other party will make no objection on the alleged ground of lack of jurisdiction of said Court on the ground that there is an adequate remedy at law. The parties do not intend or purport hereby to improperly confer Page 14 of 25 MLH ~~ JEH jurisdiction on a Court in Equity by this Agreement, but they agree as provided herein for the forum of equity in mutual recognition of the present state of the law, and in recognition of the general jurisdiction of Courts in Equity over agreements such as this one. 20. EFFECT OF RECONCILIATION OR COHABITATION The parties' reconciliation, attempt to reconcile, or cohabitation as husband and wife, shall not abrogate the terms of this Agreement. This Agreement shall remain in full force and effect unless the parties modify the Agreement as provided in paragraph 24 or execute a notarized statement declaring this Agreement and all its provisions null and void. 21. ADDITIONAL INSTRUMENTS Within no more than fifteen (15) days after demand therefore, each of the parties hereto agrees that he or she will join in the execution, acknowledgment and delivery of any deed or other document which may be reasonably necessary to carry out the intent of this Agreement, and, in the event either of the parties hereto would not join in the execution, acknowledgment and delivery of such instrument, then such party does hereby irrevocably appoint the other party hereto as his or her Attorney-in-Fact to execute, acknowledge and deliver such instrument hereby ratifying all that such other party hereto may do by virtue hereof with a copy of this Agreement to be a sufficient Power of Attorney to carry out the intent and purpose of this paragraph. Nothing contained in this section shall affect the right of one party to expressly include or exclude, as the case may be, the other party as beneficiary in any will, insurance policy or other document whether the same is presently in effect or would become effective in the future. Page 15 of 25 MLH - ~~ JEH 22. VOLUNTARY EXECUTION The provisions of this Agreement and their legal effect have been fully explained to the parties by their respective legal representatives, and each party acknowledges that the Agreement is fair and equitable, that it is being entered into voluntarily, with full knowledge of the assets of both parties, and that it is not the result of any duress or undue influence. The parties acknowledge that they have been furnished with all information relating to the financial affairs of the other which has been requested by each of them or their respective counsel. 23. DISCLOSURE Each of the parties hereto acknowledges that there has been full disclosure of all relevant matters of each party to the other party, that each of the parties is fully cognizant of his and her legal rights and liabilities with respect to the terms and conditions of this Agreement, that he and she understand the legal effect of this provisions of this Agreement and acknowledge that this Agreement is fair and equitable to each of the parties hereto, and that this Agreement was entered into voluntarily and without any undue influence or duress upon either party hereto. 24. MODIFICATION AND WAIVER This Agreement shall constitute a full, complete, and total binding Agreement between the parties concerning support, maintenance, alimony and property settlement, and is precluded from modification EXCEPT if the parties specifically agree to modify this Agreement. MLH~'}' L JEH Page 16 of 25 Any and all modifications to this Agreement shall only be by written agreement containing the same formalities as this Agreement and shall exhibit the notarized signatures of both parties, along with two witnesses. The parties specifically agree that they may rescind this Agreement only by written agreement containing the same formalities as this Agreement which shall exhibit the notarized signatures of both parties, along with two witnesses. Any waiver of a breach of any provision of this Agreement shall not constitute an ongoing waiver. Any waiver by either party of any provisions of this Agreement of any right or operation hereunder, shall not be controlling nor shall it prevent or estop such parry from thereafter enforcing such provision, right, or option and the failure of either parry to insist in any one or more instances upon the strict performance of any of the terms or provisions of this Agreement by the other parry shall not be construed as a waiver or relinquishment for the future of any such term or provision, but the same shall continue in full force and effect. 25. ENTIRE AGREEMENT This Agreement constitutes the entire understanding of and agreement between the parties hereto, and there are no other representations, warranties, covenants, understandings, undertakings or agreements other than those expressly set forth herein. 26. INCORPORATION INTO DECREE OF DIVORCE Unless as otherwise provided herein, this Agreement shall be incorporated in and made a part of any Decree that might be entered in any dissolution proceeding between the parties hereto MLH ~ Y JEH Page 17 of 25 upon the filing by either or both parties of an executed copy of this Agreement in such action and same may be incorporated by reference into any such Decree or court order. It is specifically agreed, however, that a copy of this Agreement may be incorporated, by reference, into a divorce judgment or decree. This incorporation, however, shall not be regarded as a merger, it being the intent of the parties to permit this Agreement to survive any such judgment, unless otherwise specifically provided herein, and for this Agreement to continue in full force and effect after such time as a final decree in divorce may be entered with respect to the parties. The parties agree that the terms of this Agreement shall be incorporated into any divorce decree which may be entered with respect to them for purposes of enforcement only of any provisions therein, but shall survive such decree. 27. DESCRIPTIVE HEADINGS The descriptive headings used herein are for convenience only. They shall have no effect whatsoever in determining the rights or obligations of the parties. 28. INDEPENDENT AND SEPARATE COVENANTS It is specifically understood and agreed by and between the parties hereto, that each paragraph shall be deemed a separate and independent covenant and agreement. 29. APPLICABLE LAW This Agreement shall be interpreted in accordance with the laws of the Commonwealth of Pennsylvania. Page 18 of 25 MLH JE 30. VOID CLAUSES If any term, condition, clause or provision of this Agreement shall be determined or declared to be void or invalid in law or otherwise, then only that term, condition, clause or provision shall be stricken from this Agreement and in all other respects, this Agreement shall be valid and continue in full force, effect and operation. 31. AGREEMENT BINDING ON HEIRS This Agreement shall inure to the benefit of and shall be binding upon the parties hereto, their heirs, executors, administrators, successors and assigns. 32. EFFECTIVE DATE This Agreement shall be considered to be effective at 12:01 a.m. on the date set forth on page one of this Agreement, which shall be the date on which the last party signs this document. THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK. Page 19 of 25 MLH ~~ JEH IN TESTIMONY WHEREOF, witness the signature of the parties hereto this ~~h day of January, 2010. ~~~ln~~~,~~Ql~~ Witness for Mignon L. Holstein Mi n .Holstein Witness for Jay E. Holstei J olstei Page 20 of 25 MLH JEH COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND :SS. On this, the ~ day of , G~,, • ~,, 2010, before me, a Notary Public, personally appeared _ Mi;;non L. Holstein an in due form of law acknowledged the foregoing Agreement to be her act and deed, and desired that the same might be recorded as such. Sworn to and subscribed before me this 2$ day of :~ ' , 2010. i 1 Notary Pu COMMONWEALTHNNSYLVANIA Notarial Seal Ashley Sipe, Notary Public i~iampden Twp., Ctxrtberlartd County ~~, y Commission Expires Oct.12, ~ r ~ = i Mora ;~e;, I'ennsylvanla Association ar tJoiaries Page 21 of 25 MLH JE COMMONWEALTH OF PENNSYLVANIA COUNTY OF DAUPHIN :SS. On this, the ~~ day of ~~ 1~0~ ~RT_, 2010, before me, a Notary Public, personally appeared Jay E. Holstein and 1n due form of law acknowledged the foregoing Agreement to be his act and deed, and desired that the same might be recorded as such. Sworn to and subscribed before me this z7~'day of ~F't ~`( , 2010. Notary Public COMMONWEALTy OF PENNSYLVANIA NO~.!rial S C+h' Ot Hams ~' °~ Public P My Coffin '~, uPhin County Pennsylvarsia Ass~ia o~ f $' 2014 Notaries Page 22 of 25 MLH JEH Exhibit A All items owned prior to the marriage Jewelry, as further set forth in Paragraph 7 Jewelry Armoire Cherry Sleigh bed and matching dresser Living room sofa and matching chair with Ottoman Sofa table in living room TV Armoire (oak) sitting in garage TV- 27 INCH sitting in basement (TV has built in DVD player) All holiday decorations in boxes in basement 1 \2 of kitchen plates \bowls \ cups \ glasses All kitchen gadgets All home decor (pictures on walls, vases, etc, except for the pictures that hang above the sofa in the living room) Wife's Laptop All Wife's belongings boxed up in base ent ~~ Personal safe in basement 2009 BMW Oriental rug now in the basement Deep freezer in the basement MLH L JEH Page 23 of 25 Exhibit B Kitchen table and 4 chairs The pictures that hang above the sofa in the living room -~, ,~ Page 24 of 25 MLH/ f L/;/ JE APPENDIX 1 Page 25 of 25 MLH L JE IRREVOCABLE SPECIFIC POWER of ATTORNEY PRINCIPAL: MIGNON L. HOL TEIN AGENT: JAY E. HOLSTEIN NOTICE THE PURPOSE OF THIS POWER OF ATTORNEY IS TO GIVE THE PERSON YOU DESIGNATE (YOUR "AGENT") BROAD POWERS TO HANDLE YOUR PROPERTY, WHICH MAY INCLUDE POWERS TO SELL OR OTHERWISE DISPOSE OF ANY REAL OR PERSONAL PROPERTY WITHOUT ADVANCE NOTICE TO YOU OR APPROVAL BY YOU. THIS POWER OF ATTORNEY DOES NOT IMPOSE A DUTY ON YOUR AGENT TO EXERCISE GRANTED POWERS, BUT WHEN POWERS ARE EXERCISED, YOUR AGENT MUST USE DUE CARE TO ACT FOR YOUR BENEFIT AND IN ACCORDANCE WITH THIS POWER OF ATTORNEY. YOUR AGENT MAY EXERCISE THE POWERS GIVEN HERE THROUGHOUT YOUR LIFETIME, EVEN AFTER YOU BECOME INCAPACITATED, UNLESS YOU EXPRESSLY LIMIT THE DURATION OF THESE POWERS OR YOU REVOKE THESE POWERS OR A COURT ACTING ON YOUR BEHALF TERMINATES YOUR AGENT'S AUTHORITY. YOUR AGENT MUST KEEP YOUR FUNDS SEPARATE FROM YOUR AGENT'S FUNDS. A COURT CAN TAKE AWAY THE POWERS OF YOUR AGENT IF IT FINDS YOUR AGENT IS NOT ACTING PROPERLY. THE POWERS AND DUTIES OF AN AGENT UNDER A POWER OF ATTORNEY ARE EXPLAINED MORE FULLY IN 20 PA.C.S. CH. 56. IF THERE IS ANYTHING ABOUT THIS FORM THAT YOU DO NOT UNDERSTAND, YOU SHOULD ASK A LAWYER OF YOUR OWN CHOOSING TO EXPLAIN IT TO YOU. I HA VE READ OR HAD EXPLAINED TO ME THIS NOTICE AND I UNDERSTAND ITS CONTENTS. MIGNON L. HOLSTEIN, PRINCIPAL DATE: ~'- F~~ -~~,%~1 2 ~. COMMONWEALTHOF PENNSYLVANIA COUNTY OF CUMBERLAND SS. On this, the day of C;• 2010, before me, a Notary Public, personally appeared MIGNONL. HOLSTEIN, kno to me (or satisfactorily proven) to he the PRINCIPAL whose name is subscribed to the within instrument, and acknowledged that the declarant executed the same for the purposes therein contained. IN WITNESS WHEREOF I hereunto set my hand and official seal. r ~n COMMONWEALTH OF PENNSYLVANIA Notary Public Notarial Seal Ashley Sipe, Notary Public ~•3ampden Twp., Cumberland Co~rdy r C,:rnmission E~ires Oct. '1 ~ : ; ; M.;,rr`:c~ ;~ennsVlvania Association o i'~t7.371c: 3 ACKNOWLEDGMENT BY AGENT I, JAY E. HOLSTEIN, HAVE READ THE ATTACHED POWER OF ATTORNEY AND I AM THE PERSON IDENTIFIED AS THE AGENT FOR THE PRINCIPAL. I HEREBY ACKNOWLEDGE THAT IN THE ABSENCE OF A SPECIFIC PROVISION TO THE CONTRARY IN THE POWER OF ATTORNEY OR IN 20 PA.C.S. WHEN I ACT AS AGENT: I SHALL EXERCISE THE POWERS FOR THE BENEFIT OF THE PRINCIPAL. I SHALL KEEP THE ASSETS OF THE PRINCIPAL SEPARATE FROM MY ASSETS. I SHALL EXERCISE REASONABLE CAUTION AND PRUDENCE. I SHALL KEEP A FULL AND ACCURATE RECORD OF ALL ACTIONS, RECEIPTS AND DISBURSEMENTS ON BEHALF OF THE PRINCIPAL. 4 . ., ~ COMMONWEALTHOF PENNSYLVANIA . ~~vP4-tlhl ss. COUNTY OF ~P~` _ On this, the ~_ day of ~~,,1i 3P- ;~ ~ , 2010, before me, a Notary Public, personally appeared JAY E. HOLSTEIN, the AGENT, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that the declarant executed the same for the purposes therein contained. IN WITNESS WHEREOF I hereunto set my hand and official seal. Notary Public GOMMQNyyEgL ~ y GF pENNSYL'/ANlA Notarial Seal Susan C. ,q~l~4S Nc p cny Gd Harrisbu ~ ubllc MY Commi ~'~ Dauphin County ~- nss Dec. 28, 2010 Pennsylvania e4ssociation of Notaries IRREVOCABLE SPECIFIC POWER OF ATTORNEY of MIGNON L. HOLSTEIN Know all men by this presence that I, MIGNON L. HOLSTEIN of Mechanicsburg, Pennsylvania, have made, constituted and appointed and do hereby make, constitute and appoint 3AY E. HOLSTEIN of 479 Adam Lane, Mechanicsburg, Pennsylvania 17050, my true and lawful attorney-in- fact for me and in my name. To sign and acknowledge any and all instruments relating to the sale of the property located at 479 Adam Lane, Mechanicsburg, Pennsylvania 17050, including the removal of my name from the mortgage, deed and any other documents related thereto. And I hereby ratify and confirm all acts which may be lawfully done or performed by my said attorney-in-fact as fully as if done or performed by me in person. r~ i, Witness MIGI~O L. HOLSTEIN COMMONWEALTHOF PENNSYLVANIA COUNTY OF CUMBERLAND SS. On this, the _ 1_: ~ day of ~c~.~1`~~~-~- , 2010, before me, a Notary Public, personally appeared MIGNONL. HOLSTEIN, known to me (or satisfactorily proven) to be the PRINCIPAL whose name is subscribed to the within instrument, and acknowledged that the declarant executed the same for the purposes therein contained. IN WITNESS WHEREOF I hereunto set my hand and official seal. Notary Public ~ CgMPdIONNV~Hl.TH G~ R°~NN9YL~I~NiH Notarial Sea! ashlsy Sipe, Notary public € r~F,~~lert 7wp.. Cumbeitand Go:_!; ,r,,; 6 f :,:-nrnissian E~ires Oct. ~! :~, ,,._. ._._ ~._ .._ _.J ~~ ~ 21'SYicYlyan ~. ,S.g^nCl3tiot7 {; ~ -~ MIGNON L. HOLSTEIN V. JAY E. HOLSTEIN IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA N O. 2010-364 DIVORCE DECREE AND NOW, ~~,,~ ~ ~,~1~ , it is ordered and decreed that MIGNON L. HOLSTEIN plaintiff, and JAY E. HOLSTEIN ,defendant, are divorced from the bonds of matrimony. Any existing spousal support order shall hereafter be deemed an order for alimony pendente lite if any economic claims remain pending. The court retains jurisdiction of any claims raised by the parties to this action for which a final order has not yet been entered. Those claims are as follows: (If no claims remain indicate "None.") Property Settlement Agreement dated and filed January 28, 2010 is herein incorporated and not merged. By the Court, Attest: J. ,. _. ~~ _. Prothonotary ,~. ~ • I p ,t,~c~•c~. ~nna~ led -~-o ~~ ~'IL~p~d~ONOTARY 20101~fl'~ ~' 1 P~ 1:39 CU?'1B~.R SYl..YANIATY PEtlk~ Law Office of Theresa Barrett Male Theresa Barrett Male, Esquire Supreme Court #46439 513 North Second Street Harrisburg, PA 17101-1058 (717) 233-3220 tbm tbmesauire.com Attorneys for Defendant COURT OF COMMON OF PLEAS CUMBERLAND COUNTY, PENNSYLVANIA MIGNON L. HOLSTEIN Plaintiff/Respondent : v. NO. 10-364 Civil Term JAY E. HOLSTEIN : Defendant/Petitioner CIVIL ACTION -DIVORCE DEFENDANT'S PETITION FOR SPECIAL RELIEF PURSUANT TO PA. R.C.P. 1920.43 1. Defendant/Petitioner Jay E. Holstein and Plaintiff/Respondent Mignon L. Holstein, formerly husband and wife, were divorced on May 5, 2010. A copy of the Decree in Divorce, signed by the Honorable M.L. Ebert, is attached as Exhibit 1. 2. The economic issues incident to the parties' separation and divorce were resolved in a Stipulated Property Settlement Agreement ("PSA"), which was filed of record on January 28, 2010. Atime-stamped copy of the agreement is attached as Exhibit 2. 1 3. In relevant part, the PSA contemplated the sale of the former marital residence, which is located at 479 Adam Lane, Mechanicsburg, Cumberland County, Pennsylvania. PSA at ¶ 6.c.; Exhibit 2 at pages 5-6. 4. On January 28, 2010, Plaintiff/Respondent executed an Irrevocable Specific Power of Attorney ("POA"), naming Mr. Holstein her attorney in fact to execute documents relating to the sale of the Adam Lane property. A copy of the POA is attached as Exhibit 3. 5. Elizabeth J. Saylor, Esquire, counsel for Plaint~fF/Respondent, has possession of the original POA. 6. The parties purchased the Adam Lane property, which is encumbered by a mortgage in the names of both parties, for $345,000 in June 2009, shortly before Plaintiff/Respondent informed Mr. Holstein that she no longer wanted to be married. 7. The monthly mortgage payment is $2,100, which includes the escrow for real estate taxes and insurance. 8. Mr. Holstein, who continues to reside in the Adam Lane property, assumed responsibility for payment of the mortgage while the property was being marketed for sale. PSA at ¶ 6.e.; Exhibit 2 at page 6-7. 9. Pursuant to paragraph 9 of the PSA, Plaintiff/Respondent received $15,000 when she vacated the Adam Lane property, and is to receive $20,000 within thirty (30) days of the settlement date on sale of the property, and $5,000 within five (5) years of signing the PSA. PSA at ¶ 9; Exhibit 2 at page 9. 2 t 10. In compliance with the PSA, Mr. Holstein listed the property for sale with RSR Realtors, but received no offers. 11. Because of the adverse real estate market, the listing agent, Greg Rothman, has advised Mr. Holstein to relist the property for sale in May, 2011. 12. On or about June 7, 2010, Mr. Holstein was approved to refinance the joint mortgage, thereby releasing Plaintiff/Respondent from the joint liability and decreasing his monthly mortgage payment, including escrow, to $1,835.38. 13. When the lender's counsel informed Mr. Holstein that the PSA would have to be modified in order for him to complete settlement on the refinance, Mr. Holstein requested that Plaintiff/Respondent execute a modification to the PSA. A copy of the modification is attached as Exhibit 4. 14. The modification agreement clearly preserved all terms of the PSA while allowing Mr. Holstein to refinance the joint mortgage. See ¶¶ 2 and 3 of Exhibit 4.. 15. Execution of the modification would not have prejudiced or compromised Plaintiff/Respondent's interests. 16. Plaintiff/Respondent, however, demanded that Mr. Holstein concurrently pay her the $20,000 due when the property is sold. 17. Although Mr. Holstein advised Plaintiff/Respondent that he was unable to pay the cash payment, she refused to sign the modification. 18. As a direct result of Plaintiff/Respondent's refusal to sign the modification, Mr. Holstein was unable to complete the financing and incurred $1,000 in legal fees. 3 19. On October 12, 2010, Mr. Holstein again applied for financing, and has a lock-in rate of 2.8% which expires on November 30, 2010. 20. With the 2.8% rate, Mr. Holstein can lower his monthly payments from $2,100 to $1,549.62, and satisfy the joint mortgage. 21. On October 19, 2010, Mr. Holstein's counsel contacted counsel for Plaintiff/Respondent, explained that Mr. Holstein again was hoping to refinance the joint mortgage, and asked for the original POA. 22. By letter dated October 20, 2010, Plaintiff/Respondent's counsel advised that she could not release any documents because her attempts to contact her client were unsuccessful. 23. Since then, Mr. Holstein's counsel has teamed that, even if he had the original POA, the refinancing would not go through because the PSA contemplates only sale of the Adam Lane property.' 24. As set forth earlier, Plaintiff/Respondent refused to cooperate with the earlier refinancing, and, even assuming that her counsel was able to contact her, Mr. Holstein doubts that Plaintiff/Respondent would sign a modification to the PSA allowing the refinancing to proceed. 25. Through no fault of Mr. Holstein's, the property was not sold when he listed it for sale earlier this year. The delay in filing this application is attributable solely to Mr. Holstein's counsel, who has been working part-time while undergoing treatment for breast cancer. 4 ti 26. Through no fault of Mr. Holstein's, the property cannot be marketed until 2011. 27. Property settlement agreements are subject to the rules of law governing contracts.2 Adams v. Adams, 848 A.2d 991 (Pa. Super. 2004). 28. Because events beyond the parties' control frustrated the purpose of paragraph 6 of the PSA, the situation is governed by the doctrine of impracticability of performance: Where, after a contract is made, a party's performance is made impracticable without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his duty to render that performance is discharged, unless the language or the circumstances indicate the contrary. Restatement of Contracts 2d, § 261. See also West v. Peoples First National Bank & Trust Co., 378 Pa. 275, 106 A.2d 427 (1954): Under the doctrine of impossibility of performance applicable to the construction of contracts,. if, after a contract is made, a party's performance is ,made impracticable through no fault of his or her own, the parties may waive the difficulties or terminate the agreement, ending all contractual obligations. 29. Mr. Holstein is not seeking to avoid marketing the property, but rather to reduce his monthly mortgage payments pending settlement on the property's sale. 30. There is no prejudice to Plaintiff/Respondent if Mr. Holstein refinances the joint mortgage and lowers his monthly mortgage payments pending the property's sale. z The PSA was incorporated, but not merged, into the decree. 5 31. Mr. Holstein has incurred legal fees as a direct result of Plaintiff/Respondent's refusal to cooperate with him, including $1,000 in legal fees in July 2010, as more particularly set forth in paragraph 18, supra. 32. This Honorable Court has authority to grant Mr. Holstein relief pursuant to Pennsylvania Rule of Civil Procedure 1920.43, which provides in relevant part: (a) At any time after the filing of the complaint, on petition setting forth facts entitling the party to relief, the court may, upon such terms and conditions as it deems just, including the filing of security, (1) issue preliminary or special injunctions necessary to prevent the removal, disposition, alienation or encumbering of real or personal property in accordance with Rule 1531(a), (c), (d) and (e); or (2) order the seizure or attachment of real or personal property; or (3) grant other appropriate relief. 33. Rule 1920.43 contemplates ex parte relief: "... on petition setting forth facts, the court may ... grant ... appropriate relief." 34. Petitions for special relief are an appeal to the trial court's equitable powers. See, e.g., Johnson v. Johnson, 864 A.2d 1224 (Pa. Super. 2004), appeal denied, 878 A.2d 865, 583 Pa. 690 (2006). Such petitions are not limited to the time when the divorce action is pending. See Reese v. Reese, 406 Pa. Super. 214, 593 A.2d 1312 (1991). 35. Plaintiff/Respondent will not be prejudiced by entry of an order allowing Mr. Holstein to refinance the joint mortgage and appointing him her attorney-in-fact for such purposes. 6 36. Mr. Holstein will suffer irreparable harm if he is unable to settle on his refinancing before his lock-in rate expires on November 30, 2010. 37. Further militating in favor of granting Mr. Holstein relief is the Superior Court's decision in Romeo v. Romeo, 417 Pa. Super. 180, 611 A.2d 1325 (1992) (wife entitled to special relief regarding sales of real estate), cited with approval by the Supreme Court in Wagoner v. Wagoner, 538 Pa. 265, 648 A.2d 299 (1994) (trial court erred in not granting husband special relief; resolution required application of fairness principle). 38. Mr. Holstein expects that opposing counsel will not concur in this motion. See supra ¶ 20. Wherefore, Defendant/Petitioner respectfully requests the Court to enter an order: 1. Allowing him to refinance the joint mortgage on the real estate located at 479 Adam Lane, Mechanicsburg, Cumberland County, Pennsylvania. 2. Appointing him the attorney-in-fact for Plaintiff/Respondent for purposes of refinancing the joint mortgage, including signing the deed to the property. 3. After hearing, awarding him: a. His legal fees, costs and expenses incurred in connection with this application. b. The difference between the current mortgage payment amount and the reduced payments he would have been making if Plaintiff/Respondent had not frustrated his financing efforts in July 2010, c. Any other relief which the Court deems just. 7 Respectfully Submitted, Law Office of Theresa Barrett Male Theresa Barrett Male, Esquire Supreme Court # 46439 513 North Second Street Harrisburg, Pennsylvania 17101-1058 (717) 233-3220 Attorneys for Defendant Date: October 29, 2010 8 MIGNON L. HOLSTEIN V. JAY E. HOLSTEIN IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2010-364 DIVORCE DECREE AND NOW, ~ ~.a~o , it is ordered and decreed that MIGNON L. HOLSTEIN plaintiff, and JAY E. HOLSTEIN ,defendant, are divorced from the bonds of matrimony. Any existing spousal support order shall hereafter be deemed an order for alimony pendente lite if any economic claims remain pending. The court retains jurisdiction of any claims raised by the parties to this action for which a final order has not yet been entered. Those claims are as follows: (If no claims remain indicate "None.") Property Settlement Agreement dated and filed January 28, 2010 is herein incorporated and not merged. By the Court, Attest: J. J Prothonotary t LAW OFFICES OF PETER J. RUSSO, P.C. Attorneys for Plaintiff BY: Elizabeth J. Saylor, Esquire PA Supreme Court ID: 200139 ~ d ; - 5006 E. Trindle Road, Suite 100. c U `~ Mechanicsburg, PA 17050 ~'>" ' rr -~ Telephone: (717) 591-1755 - ~`" r~ - - . ~ Facsimile: (717) 591-1756 _ - - °' -`` ~._ ~ Email: lsavlor(c_~,,pjrlaw.com ;_ = --, _ _, , -_ _... _~ MIGNON L. HOLSTEIN IN THE COURT OF COMMON PLEAS OF ~~ _~ Y Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA ~~= v. CIVIL ACTION -LAW JAY E. HOLSTEIN N0.2010-364 CIVIL TERM Defendant IN DIVORCE STIPULATED PROPERTY SETTLEMENT AGREEMENT Txis AGx~EMENT is hereby made and entered into this ~V~h da of Y ~C~n~1 ar~ , 2010, by and between MIGNON L. HOLSTEIN (hereinafter "Wife") and JAY E. HOLSTEIN (hereinafter "Husband"). Witnesseth: Whereas, the parties hereto are Husband and Wife, having been married on July 4, 2000; Whereas, marital differences and difficulties have arisen between the parties; Whereas, the parties separated on October 11, 2009 (hereinafter "Separation Date") and intend to continue to live apart and desire to forever completely settle, separation of their marital. and non-marital, real and personal, belonging to.either and/or both of the parties hereto and all other Page 1 of 25 MLH JEH ` nghts, entitlements, benefits, and pnvileges involved between the parties hereto arising directly or indirectly out of the mamage relationship; Whereas, Wife is represented by Elizabeth J. Saylor, Esquire of the Law Offices of Peter J. Russo, P.C.; Whereas, Husband is represented by Theresa Barrett Male, Esquire; Whereas, the parties have had adequate time and opportunity to consult with legal counsel; Whereas, both parties acknowledge that they are satisfied with any legal advice received and they understand the full importance of the Agreement they are entering into; and Now, therefore, the parties, in consideration of the foregoing premises, and the mutual promises and undertakings hereinafter set forth, agree as follows: 1. RIGHT TO LIVE SEPARATE It shall be lawful for Husband and Wife at all times hereinafter to live separate and apart from each other and to reside from time to time at such place or places as he and she shall respectively deem fit, free from any control, restraint or interference, direct or indirect, by each other. The foregoing provisions shall not be taken to be any admission on the part of either Husband or Wife of the lawfulness or unlawfulness of the causes leading to their living apart. 2. FREEDOM FROM INTERFERENCE Each party shall be free from interference, authority and contact by the other as if he or she were single and unmarried except as necessary to carry out provisions of this Agreement. Neither party shall hazass the other or attempt to endeavor to harass the other, nor compel the other to Page 2 of 25 MLH~~I' JEH cohabit with the other, or in any way malign the other, nor in any way interfere with the peaceful existence, separate and apart from the other. 3. DISTRIBUTION OF VEHICLES a. Wife shall assume all payments, including all loan payments, insurance and repair bills connected with the 2009 BMW .currently in her name and possession. With respect to this vehicle, Husband. agrees that Wife shall retain possession of and retain as her sole and separate. property the aforementioned vehicle with all responsibility for payment of any outstanding indebtedness thereon, .free of any and all right, title, claim or interest of Husband. Wife shall indemnify and hold Husband and his property harmless. from any and all liability, cost or expense, including actual attorney's fees, incurred in connection with any vehicle belonging to Wife by virtue of this paragraph. b. Husband shall assume all payments, including insurance and repair bills connected with the.2006 GMC Sierra currently in his name and possession. With respect to this vehicle, Wife agrees. that Husband shall retain possession of and retain as his sole and separate property the aforementioned vehicle with all responsibility for payment of any outstanding indebtedness thereon, free of any and all right, title, .claim or interest of Wife. Husband shall indemnify and hold Wife and her property harmless from any and all liability, cost or expense, including actual attorney's fees, incurred in connection with any vehicle belonging to Husband by virtue of this paragraph. Page 3 of 25 MLH~L' , JEH 4. ASSUMPTION OF MARITAL DEBT The parties have outstanding real estate debt/responsibilities, which shall be assigned as set forth. in Paragraph 6 below, but aside therefrom the parties hereto covenant that they aze not awaze of any further debt outstanding that is held in the name of both Husband and. Wife. Except as otherwise specifically set-forth herein, each party shall be responsible for the balance of any debt held in their- own personal name, regardless of when said debt was incurred (hereinafter "Personal Debts"). With respect to the Personal Debts, the parry in whose name the debts is held shall have all responsibility for payment of any outstanding indebtedness and shall indemnify and hold the other party and his or her property harmless from any and all liability, cost or expense, including. actual attorney's fees and or tax consequences regarding the Personal Debts and/or any settlement and/or forgiveness amounts incurred in connection with any Personal Debts. It is specifically agreed by the parties that any payment or obligation due under this Agreement shall not be dischazgeable~inbankruptcy. 5. DISTRIBUTION AND RELEASE OF MARITAL DEBT With the exception of liens against motor vehicles and those set forth in paragraph 4, the parties agree: - a, Wife assumes full responsibility for any. indebtedness which she has contracted. or incurred in her name, alone or jointly, after the Separation Date. Wife represents and wazrants to Husband that, since the Sepazation Date, she has not contracted or incurred any debt or Page 4 of 25 MLH ~~ JEH liability, for which Husband or his Estate might be responsible, and shall indemnify and hold Husband harmless from any and all claims or demands made against his or his Estate by reason of debts or obligations incurred by Wife and/or assumed herein. b. Husband assumes full responsibility for any indebtedness which he has contracted or incurred in his name, alone or jointly, after the Separation Date. Husband represents and warrants to Wife that, since the filing of Separation Date, he has not contracted or incurred any debt or liability, for which Wife or her Estate .might be responsible, and shall indemnify and hold Wife harmless-from any and all claims or demands made against her or her Estate byreason of debts or obligations incurred by Husband and/or assumed herein. 6. MARITAL RESIDENCE AND CONTENTS MARITAL RESIDENCE During the course of this marriage, the parties resided at the marital residence located at 479 Adam Lane Mechanicsburg, Pennsylvania, 17050 (hereinafter "Marital Residence"). Both parses agree as follows with respect to the Marital Residence: a. The Marital Residence shall remain in the same condition, and inclusive of the same fixtures, appliances, parts and personal property as on the Separation Date, except as stated specifically otherwise herein or as mutually agreed in writing by both parties hereto; b. Wife shall vacate and provide Husband exclusive possession of the Marital Residence, on or before the Moving Date as defined within this Pazagraph 6; c. Husband and Wife agree that the Marital Residence shall be sold by Husband as Page 5 of 25 MLH JEH soon as possible in good faith and within a reasonable time period, with consideration given to the current real estate market; d. Husband and Wife shall simultaneously herewith execute the proposed Listing Contract with Greg Rothman of RSR Realtors for the sale of the Martial Residence. Wife shall, immediately thereafter, execute the Irrevocable Specific Power of Attorney, attached as Appendix 1 in favor of Husband to allow Husband to only mazket for sale and transfer Wife's ownership interest in the Marital Residence; e. Husband shall, upon the Effective Date be solely responsible for the Marital Residence, including, but not limited to: a. The sale of the Marital Residence and any and all responsibilities and costs related thereto; and -b. Payment of any outstanding indebtedness thereon, including, but not limited to the mortgage, insurance, taxes, and utilities regazding the Marital Residence from the Effective Date forward, free of any and all right, title, claim or interest of Wife. Husband shall indemnify and hold Wife and her property harmless from any and all liability, cost or expense, including actual attorney's fees, incurred in connection with the Marital Residence. Husband shall continue to pay the joint mortgage, the real estate taxes and the homeowner's insurance from the Page 6 of 25 ,E~N prior house sale proceeds until the Marital Residence is sold, or the funds are depleted, whichever occurs first. f. Husband shall be entitled to any and all profit from the sale of the Marital Residence, free of any and all right, title, claim or interest of Wife. CONTENTS AND PERSONAL PROPERTY Husband and Wife agree that Wife. shall have, free of any and all right, title, claim or interest of Husband, all of the property set forth on Exhibit A and Exhibit B hereto, which aze incorporated herein, and said property shall remain in the same condition as of the Effective Date. Wife shall vacate the Marital Residence on or before January 31, 2010 (hereinafter "Moving Date") and shall take with her all of the property set forth on Exhibit A. Husband and Wife agree that Wife's property set forth on Exhibit B shall remain at the Marital Residence until the property is sold. Within ten (10) days of receiving confirmation of the Settlement Date, Husband shall notify Wife`s counsel via email of the Settlement Date so that Wife may, at a mutually agreed upon time prior to the Settlement Date, retrieve the property set forth on Exhibit B. Wife shall bear all costs and expenses incurred in.her retrieval of the items identified on Exhibit B. Husband shall send the email to lsaylor(c~pjrlaw.com and shall copy his counsel at tbm~n,tbmesQUire.com. Husband and Wife agree that Husband shall retain, free of any and all right, title, claim or interest of Wife, all personal property in the Marital Residence and on the Marital Residence premises, not set forth on Exhibit A and Exhibit B hereto, including, but not limited to the English setter, Buddy, and the partial china set which belonged to Husband's grandmother. Page 7 of 25 MLH 7~ JE From. the Effecttve Date forwazd, Wife shall, at her sole discretion, attain the assistance of her sister and female. friends to prepare for the Moving Date. On the Moving Date Wife shall, at her sole discretion, have the assistance of her family and friends. Wife shall provide Husband with forty-eight (48) hours notice via email of the Moving Date and time and shall further copy both counsel via email at the following addresses: lsa~napjrlaw.com and tbm(a?,tbmesquire.com. 7. MISCELLANEOUS PROPERTY -PERSONAL AND MARITAL It is further agreed that both Husband and Wife shall retain as his or her own any and all personal effects, clothing, personal jewelry, and items which either party acquired before marriage, except that the parties hereby agree that they will exchange Husband's wedding band for Wife's engagement ring on or before the Moving Date, i.e., the engagement ring shall become Husband's sole and separate property and the. wedding band shall become Wife's sole and sepazate .property. The parties further agree that any property not assigned in this Agreement as marital or non-marital property will be deemed the property of the physical possessor of said property at the end time of the Moving Date as defined within Pazagraph 6. 8. RETIREMENT ACCOUNTS and OTHER INTERESTS The parties shall keep, free and clear of claims from the other party all IRA's, 401 k's, other retirement accounts and any other accounts, pensions, benefits, investments and interests which are held in their sole name as personal property and not otherwise herein assigned. Wife expressly waives and relinquishes all claims in and to the marital portion of Husband's State Employees' Retirement System defined benefit plan, the increased value of Husband's pre-marital accounts, and Page 8 of 25 MLH JEH all accounts and investments which Husband acquired during the man~iage. Husband expressly waives and relinquishes all claims in and to the marital portion of Wife's retirement accounts, the increased value of Wife's pre-marital accounts, and all accounts and investments which -Wife acquired during the marriage. 9. EQUITABLE DISTRIBUTION PAYMENT In exchange for the promises set forth herein, Husband agrees to pay to Wife, as and for equitable distribution, the sum of forty thousand dollars ($40,000.00), which shall be paid as follows: (1) fifteen thousand dollars ($15,000.00) shall be paid on or before the Moving Date, (2) twenty thousand dollars ($20,000.00) shall be paid within thirty (30) days of settlement on the sale of the Marital Residence, and (3) five thousand dollars ($5,000.00) shall be paid within five (5) years from the Effective Date. It is understood by the parties, and the parties agree, that Husband's equitable distribution payment shall not constitute income to Wife for support purposes, and shall not be treated as alimony by either party. 10. JOINT ACCOUNTS Within fourteen (14) days of the Effective Date of this Agreement, the parties shall terminate all joint bank and charge accounts, credit card accounts and any other joint accounts and each party shall take those steps necessary to have the other removed as a responsible party from such accounts. The parties further specifically agree that all bank, savings, cash and checking accounts shall become the sole property of the party named on the account, to which the other party hereby waives, relinquishes and releases any and all past, present or future right, title, claim and Page 9 of 25 ML JEH interest thereto and shall be indemnified and his/her property held harmless from any and all .past, present or future liability, cost or expense, including actual attorney's fees, related to and/or incurred by the account holder in connection with said account. 11. TAX LIABILITY The parties have negotiated this Agreement with the understanding that the property transfers described in this Agreement fall within the provisions of section 1041 of the Internal Revenue Code, and as such will not result in the recognition of any gain or loss upon the transfer by the transferor. Each party promises not to take any position with respect to the adjusted basis of the property assigned to him or her with respect to any other issue which is inconsistent with the position set forth in the preceding sentence on his or her Federal or State income tax return. 12. POST SEPARATION PROPERTY Wife forever gives up all rights to any property, house, vehicle or other major or minor possession, purchased by, given to, or otherwise acquired by Husband after the Separation Date; Husband in the same manner forever gives up all rights to any property, house, vehicle or other major or minor possession, purchased by, given to, or otherwise acquired by Wife after the Separation Date. 13. MUTUAL RELEASE Subject to the provisions of this Agreement, each party waives his or her right to alimony and any further distribution of property inasmuch as the parties hereto agree that this Agreement provides for an equitable distribution of their marital property in accordance with Pennsylvania's Page 10 of 25 ML JE Divorce Code. Subject to the provisions.of this Agreement, each party has released and discharged, and by this Agreement does for himself or herself, and his or her heirs, legal representatives, executors, administrators and assigns, release and discharge the other of and. from all causes of action, claims, rights or demands whatsoever in law or equity, which either of the parties ever had or now has against the other, except any or all causes of action for divorce and except any or all caused of action for any breach of any provision of this Agreement. a. Not later than one hundred (100) days following service of the Divorce Complaint or within seven (7) days of the Effective Date, whichever is later, both Husband and Wife shall have executed an Affidavit consenting to the entry of a final degree in divorce.: Further both parties shall execute a Waiver of Notice of Intention to Request Decree under Section 3301(c) of the Divorce Code of 1980, as amended. b. Wife shall cause the Affidavits and Waivers to be filed of record and the divorce finalized. c. The right to request counseling is hereby waived by the parties. Page 11 of 25 MLH ~~ 14. ALIMONY The parties herein acknowledge that by this Agreement they have each respectively secured and maintained a substantial and adequate fund with which to provide themselves sufficient financial resources to provide for their comfort, maintenance and support, in the station of life in which they are accustomed. Wife and Husband do hereby waive, release and give up any rights they may respectively. have against the other for alimony, alimony pendente. lite, support or maintenance. It shall be from the date of this Agreement the sole responsibility of each of the respective parties to sustain themselves without seeking any support from the other party. 15. ALIMONY PENDENTE LITE. COUNSEL FEES AND EXPENSES Both parties hereby acknowledge and accept that the provisions of this Agreement providing for the equitable distribution of marital property are fair, adequate and satisfactory to them. Both parties agree to accept the provisions of this Agreement in lieu of and in full and fmal settlement and satisfaction of all claims and demands that either may now or hereafter have against the other for alimony pendente lite, counsel fees ~ and expenses during and after the commencement of any divorce proceeding between the parties. 16. INCOME TAX RETURNS Husband and Wife agree to file joint tax returns in 2010 for the 2009 tax year and shall file individual tax returns for each year thereafter. Both Husband and Wife agree that any joint tax returns filed shall be prepared by a mutually agreed upon individuaUagency and that the parties will share equally said costs. Any refund and/or debt owed to or paid by any taxing authority for the Page 12 of 25 MLH L/V JEH 2009 tax year as a result of Wife's income and/or filing status, shall be the sole responsibility and/or property of Wife to which Husband hereby waives any interest therein, and Wife shall indemnify and hold Husband and his property harmless from any and all liability, cost or expense, including actual attorney's fees, incurred in connection therewith. Any refund and/or debt owed to or paid by any taxing authority for the 2009 tax year as a result of Husband's income and/or filing status, shall be the sole responsibility and/or property of Husband to which Wife hereby waives any interest therein, and Husband shall indemnify and hold Wife and his property harmless from any and all liability, cost or expense, including actual attorney's fees, incurred in connection therewith. Any refund and/or debt not assignable as provided herein, shall be divided equally between the parties. 17. WAIVER OF CLAIMS AGAINST ESTATES Except as herein otherwise provided, each party may dispose of his or her property in any way, and each party hereby waives and relinquishes any and all rights he or she may now have or hereafter acquire, under the present or future laws of any jurisdiction, to shaze in the property or the estate of the other as a result of the marital relationship, including, without limitation, dower, curtsey, statutory allowance, widow's allowance, right to take intestacy, right to take against the will of the other, and right to act as administrator or executor of the other's estate. Each will, at the request of the other, execute, acknowledge and deliver any and all instruments .which may be necessary or advisable to carry into effect this mutual waiver and relinquishment of all such interests, rights and claims and both parties will revoke prior wills or testamentary documents. Page 13 of 25 MLH L JEH ~ 18. AGREEMENT NOT PREDICATED ON DIVORCE It is specifically understood and agreed by and between the parties hereto and each of the said parties does hereby warrant and represent to the other, that the execution and delivery of this Agreement is not predicated upon nor made subject to any agreement for institution, prosecution, defense, or for the non-prosecution or non-defense of any action for divorce; provided, however, that nothing contained in this Agreement shall prevent or preclude either of the parties hereto from commencing, instituting or prosecuting any action or actions for divorce, either absolute or otherwise, upon just, legal and proper grounds; nor to prevent either party from defending any such action which has been, may or shall be instituted by the other party, or from making any just or proper defense thereto. 19. BREACH AND ENFORCEMENT If either party hereto breaches any of the provisions of this Agreement, the other party shall have the right to bring any actions or actions in law or equity for such breach, and the breaching party shall be responsible for the payment of all costs and reasonable legal fees incurred by the other party in enforcing his or her rights under this Agreement. It is expressly understood and agreed by and between the parties hereto that this Agreement may be specifically enforced by either party in Equity, and the parties hereto agree that if an action to enforce this Agreement is brought in Equity by either party, the other party will make no objection on the alleged ground of lack of jurisdiction of said Court on the ground that there is an adequate remedy at law. The parties do not intend or purport hereby to improperly confer Page 14 of 25 MLH 3EH jurisdiction on a Court in Equity by this Agreement, but they agree as provided herein for the forum of equity in mutual recognition of the present state of the law, and in recognition of the general jurisdiction of Courts in Equity over agreements such as this one. 20. EFFECT OF RECONCILIATION OR COHABITATION The parties' reconciliation, attempt to reconcile, or cohabitation as husband and wife, shall not abrogate the terms of this Agreement. This Agreement shall remain in full force and effect unless the parties modify the Agreement as provided in paragraph 24 or execute a notarized statement declaring this Agreement and all its provisions null and void. 21. ADDITIONAL INSTRUMENTS Within no more than fifteen (15) days after demand therefore, each of the parties hereto agrees that he or she will join in the execution, acknowledgment and delivery of any deed or other document which may be reasonably necessary to carry out the intent of this Agreement, and, in the event either of the parties hereto would not join in the execution, acknowledgment and delivery of such instrument, then such. party does hereby irrevocably appoint the other party hereto as his or her Attorney-in-Fact to execute, acknowledge and deliver such instrument hereby ratifying all that such other party hereto may do by virtue hereof with a copy of this Agreement to be a sufficient Power of Attorney to carry out the intent and purpose of this paragraph. Nothing contained in this section shall affect the right of one party to expressly include or exclude, as the case may be, the other party as beneficiary in any will, insurance policy or other document whether the same is presently in effect or would become effective in the future. Page 15 of 25 MLH JEH 22. VOLUNTARY EXECUTION The provisions of this Agreement and their legal effect have been fully explained to the parties by their respective legal representatives, and each party acknowledges that the Agreement is fair and equitable, that it is being entered into voluntarily, with full knowledge of the assets of both parties, and that it is not the result of any duress or undue influence. The parties acknowledge that they have been furnished with all information relating to the financial affairs of the other which has been requested by each of them or their respective counsel. 23. DISCLOSURE Each of the parties hereto acknowledges that there has been full disclosure of all relevant matters of each parry to the other party, that each of the parties is fully cognizant of his and her legal rights and liabilities with respect to the terms and conditions of this Agreement, that he and she understand the legal effect of this provisions of this Agreement and acknowledge that this Agreement is fair and equitable to each of the parties hereto, and that this Agreement was entered into voluntarily and without any undue influence or duress upon either party hereto. 24. MODIFICATION AND WAIVER This Agreement shall constitute a full, complete, and total binding Agreement between the parties concerning support, maintenance, alimony and properly settlement, and is precluded from modification EXCEPT if the parties specifically agree to modify this Agreement. Page 16 of 25 MLH ~ ~,/ JEH Any and all modifications to this Agreement shall only be by written agreement containing the same formalities as this Agreement and shall exhibit the notarized signatures of both parties, along with two witnesses. The parties specifically agree that they may rescind this Agreement only by written agreement containing the same formalities as this Agreement which shall exhibit the notarized signatures of both parties, along with two witnesses. Any waiver of a breach of any provision of this Agreement shall not constitute an ongoing waiver. Any waiver by either party of any provisions of this Agreement of any right or operation hereunder, shall not be controlling nor shall it prevent or estop such party from thereafter enforcing such provision, right, or option and the failure of either party to insist in any one or more instances upon the strict performance of any of the terms or provisions of this Agreement by the other party shall not be construed as a waiver or relinquishment for the future of any such term or provision, but the same shall continue in full force and effect. 25. ENTIRE AGREEMENT This Agreement constitutes the entire understanding of and agreement between the parties hereto, and there are no other representations, warranties, covenants, understandings, undertakings or agreements other than those expressly set forth herein. 26. INCORPORATION INTO DECREE OF DIVORCE Unless as otherwise provided herein, this Agreement shall be incorporated in and made a part of any Decree that might be entered in any dissolution proceeding between the parties hereto Page 17 of 25 MLH ;' JEH upon the filing by either or both parties of an executed copy of this Agreement in such action and same may be incorporated by reference into any such Decree or court order. It is specifically agreed, however, that a copy of this Agreement may be incorporated, by reference, into a divorce judgment or decree. This incorporation, however, shall not be regarded as a merger, it being the intent of the parties to pernut this Agreement to survive any such judgment, unless otherwise specifically provided herein, and for this Agreement to continue in full force and effect after such time as a final decree in divorce may be entered with respect to the parties. The parties agree that the terms of this Agreement shall be incorporated into any divorce decree which may be entered with respect to them for purposes of enforcement only of any provisions therein, but shall survive such decree. 27. DESCRIPTIVE HEADINGS _ _ The descriptive headings used herein are for convenience only. They shall have no effect whatsoever in determining the rights or obligations of the parties. 28. INDEPENDENT AND SEPARATE COVENANTS It is specifically understood and agreed by and between the parties hereto, that each paragraph shall be deemed a separate and independent covenant and agreement. 29. APPLICABLE LAW This Agreement shall be interpreted in accordance with the laws of the Commonwealth of Pennsylvania. Page 18 of 25 MLH /~ JE 30. VOID CLAUSES If any term, condition, clause or provision of this Agreement shall be determined or declared to be void or invalid in law or otherwise, then only that term, condition, clause or provision shall be stricken from this Agreement and in all other respects, this Agreement shall be valid and continue in full force, effect and operation. 31. AGREEMENT BINDING ON HEIRS This Agreement shall inure to the benefit of and shall be binding upon the parties hereto, their heirs, executors, administrators, successors and assigns. 32. EFFECTIVE DATE This Agreement shall be considered to be effective at 12:01 a.m. on the date set forth on page one of this Agreement, which shall be the date on which the last party signs this document. THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK. Page 19 of 25 MLH JEH IN TESTIMONY WHEREOF, witness the signature of the parties hereto this ~,~day of January, 2010. Witness for Mignon L. Holstein Mign .Holstein fitness for Jay E. Holstein Page 20 of 25 MLH ~ / V JE COMMONWEALTH OF PENNSYLVA1vIA COUNTY OF CUMBERLAND :SS. On this, the 7~ day of ~~~ 2010, before me, a Notary Public, personally appeared Mignon L. Holstein. anC ' due form of law acknowledged the foregoing Agreement to be her act and deed, and desired that the same might be recorded as such. Sworn to and subscribed . before me this ~fi day of 2010. n Notary ~u lic COMMONWEALTH OF PENNSYLVANIA Notarial Seal Ashley Sipe, Notary Public ~lampdenTwp., Cumberland County P,^;~4e ~~rnmission E~ires Oct 9?, '.`~?_1~1 A,gcr•,~a;, °ennsylvania Association c,r"; ::.,::~" MLH / y JE Page 21 of 25 COMMONWEALTH OF PENNSYLVANIA :SS. COUNTY OF DAUPHIN On this, the `Z:1~ day of ~tar~t 1~Pj , _2010, before me, a Notary Public, personally appeared Jay E. Holstein and in due form of law acknowledged the foregoing Agreement to be his act and deed, and desired that the same might be recorded as such. Sworn to and subscribed before me this ~ day of ~~U~~ , 2010. otary Public COMMONWEr~~~'hl OF PENNSYLVANIA lVofia-ia! Seal Susan C. Appleby. Notary Pubfic Cdy Of Harrisburg, Dauphin Cour-ty My Commission Exph'es Dec. 28, 2010 Pennsylvania Association of Notaries Page 22 of 25 MLH[ i~~~N JEH Exhibit A All items owned prior to the mazriage Jewelry, as further set forth in Pazagraph 7 Jewelry Armoire Cherry Sleigh bed and matching dresser Living room sofa and matching chair with Ottoman Sofa table in living room TV Armoire (oak) sitting in gazage TV- 27 INCH sitting in basement (TV has built in DVD player) All holiday decorations in boxes in basement 1\2 of kitchen plates \bowls \ cups \ glasses All kitchen gadgets All home decor (pictures on walls, vases, etc, except for the pictures that hang above the sofa in the living room) Wife's Laptop All Wife's belongings boxed up in base//•//m}1±,ent ~V11GL1-Y~ 111 V Y ~/ ~A~ hI]Y~] RA ~j Personal safe in basement ~avH( 2009 BMW Oriental rug now in the basement Deep freezer in the basement Page 23 of 25 ML L/ Y JEH Exhibit B Kitchen table and 4 chairs The pictures that hang above the sofa in the living room Page 24 of 25 ~-~~~/ APPENDIX 1 Page 25 of 25 MLH ~/ V IRREVOCABLE SPECIFIC POWER of ATTORNEY PRINCIPAL; MIGNON L. HOLSTEIN A ENT: JAY E. HOLSTEIN NOTICE THE PURPOSE OF THIS POWER OF ATTORNEY IS TO GIVE THE PERSON YOU DESIGNATE (YOUR "AGENT") BROAD POWERS TO HANDLE YOUR PROPERTY, WHICH MAY INCLUDE POWERS TO SELL OR OTHERWISE DISPOSE OF ANY REAL OR PERSONAL PROPERTY WITHOUT ADVANCE NOTICE TO YOU OR APPROVAL BY YOU. THIS POWER OF ATTORNEY DOES NOT IMPOSE A DUTY ON YOUR AGENT TO EXERCISE GRANTED POWERS, BUT WHEN POWERS ARE EXERCISED, YOUR AGENT MUST USE DUE CARE TO ACT FOR YOUR BENEFIT AND IN ACCORDANCE WITH THIS POWER OF ATTORNEY. YOUR AGENT MAY EXERCISE THE POWERS GIVEN HERE THROUGHOUT YOUR LIFETIME, EVEN AFTER YOU BECOME INCAPACITATED, UNLESS YOU EXPRESSLY LIMIT THE DURATION OF - THESE POWERS OR -YOU REVOKE THESE POWERS OR A COURT. ACTING ON YOUR BEHALF TERMINATES YOUR AGENT'S AUTHORITY. YOUR AGENT MUST KEEP YOUR FUNDS SEPARATE FROM YOUR AGENT'S FUNDS: A COURT CAN TAKE AWAY THE POWERS OF YOUR AGENT IF IT FINDS YOUR AGENT IS NOT ACTING PROPERLY. THE POWERS AND DUTIES OF AN AGENT UNDER A POWER OF ATTORNEY ARE EXPLAINED MORE FULLY IN 20 PA.C.S. CH. 56. IF THERE IS ANYTHING ABOUT THIS FORM THAT .YOU DO NOT UNDERSTAND, YOU SHOULD ASK A LAWYER OF YOUR OWN CHOOSING TO EXPLAIN IT TO YOU. I HA VE READ OR HAD EXPLAINED TOME THIS NOTICE AND I UNDERSTAN. D ITS CONTENTS. MIGjC1C~1V L. HOLSTEIN, PRINCIPAL DATE: /- ~;~ -c~c~4 2 [ _ -; COMMONWEALTHOF PENNSYLVANIA SS. COUNTY OF CUMBERLAND On this, the _ day of 2010, before me, a Notary Public, personally appeared MIGNONL. HOLSTEIN, kno to me (or satisfactorily proven) to be the PRINCIPAL whose name is subscribed to the within instrument, and acknowledged that the declarant executed the same for the purposes therein contained. IN WITNESS WHEREOF I hereunto set my hand and official seal. ~, n otary Public COMMONWEALTH OF PENNSYLVANIA Notarial Seal Ashiey She, Notary PubC~c yarnpJen 7wp.. Cumt~ia~ Coanty r~,~,~n~ssaon E~ires OcL 1 ~ ° , pq4 :~,; : , ~ennsYlvanla Association of iJo:::ria? 3 ACKNOWLEDGMENT BY AGENT I, TAY E. HOLSTEIN, HAVE READ THE ATTACHED POWER OF ATTORNEY AND I AM THE PERSON IDENTIFIED AS THE AGENT FOR THE PRINCIPAL. I HEREBY ACKNOWLEDGE THAT IN THE ABSENCE OF A SPECIFIC PROVISION TO THE CONTRARY IN THE POWER OF ATTORNEY OR IN 20 PA.C.S. WHEN I ACT AS AGENT: I SHALL EXERCISE THE POWERS FOR THE BENEFIT OF THE PRINCIPAL. I SHALL KEEP THE ASSETS OF THE PRINCIPAL SEPARATE FROM MY ASSETS. I SHALL EXERCISE REASONABLE CAUTION AND PRUDENCE.. I SHALL KEEP A FULL AND ACCURATE RECORD OF ALL ACTIONS, RECEIPTS AND DISBURSEMENTS ON BEHALF OF THE PRINCIPAL. JA ESL TEI~ , GE V DATE: a- G 4 COMMONWEALTHOF PENNSYLVANIA ~c~'~?~'4~r-rl SS. COUNTY OF , On this, the Z~~ day of ~~,,~i ~~~~ , 2010, before me, a Notary Public, personally appeared JAY ~ HOLSTEIN, the AGENT, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within inshlunent, and acknowledged that the declarant executed the same for the purposes therein contained. IN WITNESS WHEREOF I hereunto set my hand and official seal. Notary Public - COMMONWEgl;~ PFNNSYLVAMA Susan C. Applel7y I~1~y Public ~ ~ +9~ l7euphin County F-~+t'~s Dec. 28, 2010 Pennsylvania Association of Notaries 5 IRREVOCABLE SPECIFIC POWER OF ATTORNEY of MIGNON L. HOLSTEIN Know all men by this presence that I, MIGNON L. HOLSTEIN of Mechanicsburg, Pennsylvania, have made, constituted and appointed and do hereby make, constitute and appoint JAY E. HOLSTEIN of 479 Adam Lane, Mechanicsburg, Pennsylvania 17050, my true and lawful attorney-in- fact for me and in my name. To sign and acknowledge any and all instruments relating to the sale of the property located at 479 Adam Lane, Mechanicsburg, Pennsylvania 17050, including the removal- of my name from the mortgage, deed and any other documents related thereto. And I hereby ratify and confirm all acts which may be Iawfully done or performed by my said attorney-in-fact as fully as if done or performed by me in person. Witness MIGI~ L. HOLSTEIN COMMONWEALTHOF PENNSYLVAI~IIA COUNTY OF CUMBERLAND SS. On this, the _~_. day of _~c--+1~`~-~-~- , , 2010, before me, a Notary Public, personally appeared MIGNONL. HOLSTEIN, known to me (or satisfactorily proven) to be the PRINCIPAL whose name is subscribed to the within instrument, and acknowledged that the declazant executed the same for the purposes therein contained. IN WITNESS WHEREOF I hereunto set my hand and official seal. Ci~MfU{OWVil~/iL~`H C7(r F~~NN51`Lt/~NNIA hiotariat Seal r'ishlsy Sipe, Notary Public 6 } , .,; ~~;den7wp., Cumberland Ca?;~r} J ' :. ~-nmissi~ F~gn'res oct 'f :%, tJic..,..__... ~PnnaVlyan'.a ?:^~ri3tion ~ .. ._..,.... F C~ Notary Public ~ IRREVOCABLE SPECIFIC POWER of ATTORNEY' PRINCIPAL: AGENT: JAY E. HOLSTEIN NOTICE THE PURPOSE OF THIS POWER OF ATTORNEY IS TO GIVE THE PERSON YOU DESIGNATE (YOUR "AGENT") BROAD POWERS TO HANDLE YOUR PROPERTY, WHICH MAY INCLUDE POWERS TO SELL OR OTHERWISE DISPOSE OF ANY REAL OR PERSONAL PROPERTY WITHOUT .ADVANCE NOTICE TO YOU OR APPROVAL BY YOU. THIS POWER OF ATTORNEY DOES NOT IMPOSE A DUTY ON YOUR AGENT TO EXERCISE GRANTED POWERS, BUT WHEN POWERS ARE EXERCISED, YOUR AGENT MUST USE DUE CARE TO ACT FOR YOUR BENEFIT AND IN ACCORDANCE WITH THIS POWER OF ATTORNEY. YOUR AGENT MAY EXERCISE THE POWERS GIVEN HERE THROUGHOUT YOUR LIFETIlVIE, EVEN AFTER YOU BECOME INCAPACITATED, UNLESS YOU EXPRESSLY LIMIT THE DURATION OF THESE POWERS OR YOU REVOKE THESE POWERS OR A COURT ACTING ON YOUR BEHALF TERMINATES YOUR AGENT'S AUTHORITY. YOUR AGENT MUST KEEP YOUR FUNDS SEPARATE FROM YOUR AGENT'S FUNDS: A COURT CAN TAKE AWAY THE POWERS OF YOUR AGENT IF IT FINDS YOUR AGENT IS NOT ACTING PROPERLY. THE POWERS AND DUTIES OF AN AGENT UNDER A POWER OF ATTORNEY ARE EXPLAINED MORE FULLY IN 20 PA.C.S. CH. 56. IF THERE IS ANYTHING ABOUT THIS FORM THAT YOU DO NOT UNDERSTAND, YOU SHOULD ASK A LAWYER OF YOUR OWN CHOOSING TO EXPLAIN IT TO YOU. I HA VE READ OR HAD EXPLAINED TO ME THIS NOTICE AND I UNDERSTAN. D ITS CONTENTS. MIG~TOIV L. HOLSTEIN, PRINCIPAL 2 COMMONWEALTHOF PENNSYLVANIA SS. COUNTY OF CUMBERLAND On this, the -~-~- day of a _ , 2010, before me, a Notary Public, personally appeared MIGNONL. HOLSTEIN to me (or satisfactorily proven) to be the PRINCIPAL whose name is subscribed to the within instrument, and acknowledged that the declarant executed the same for the purposes therein contained. IN WITNESS WHEREOF I hereunto set my hand and official seal. otary Public COMMONWEALTH OF PENNSYLVANIA Notari~ Seal Ashley Sipe, Notary PubCic *-iampdenlwp.,Cumbe~land CourSy . - ~ .,. ; .~,,., ~,,~mm+s~n Fires Od 1 , _ A44 ;~.;>;, ~ennsYlvanla Association of i~ro::rl::= 3 ACKNOWLEDGMENT BY AGENT I, JAY E. HOLSTEIN, HAVE READ THE ATTACHED POWER OF ATTORNEY AND I AM THE PERSON IDENTIFIED AS THE AGENT FOR THE PRINCIPAL. I HEREBY ACKNOWLEDGE THAT IN THE ABSENCE OF A SPECIFIC PROVISION TO THE CONTRARY IN THE POWER OF ATTORNEY OR IN 20 PA.C.S. WHEN I ACT AS AGENT: I SHALL EXERCISE THE POWERS FOR THE BENEFIT OF THE PRINCIPAL. I SHALL KEEP THE ASSETS OF THE PRINCIPAL SEPARATE FROM MY ASSETS. I SHALL EXERCISE REASONABLE CAUTION AND PRUDENCE. I SHALL KEEP A FULL AND ACCURATE RECORD OF ALL ACTIONS, RECEIPTS AND DISBURSEMENTS ON BEHALF OF THE PRINCIPAL. 4 COMMONWEALTHOF PENNSYLVANIA ~~'fiUp 4't1h1 SS. COUNTY OF On this, the Z'~I~ day of ~1~,.,t~ )~~`-{ , 2010, before me, a Notary Public, personally appeared JAY E. HOLSTEIN, the AGENT, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that the declarant executed the same for the purposes therein contained. IN WITNESS WHEREOF I hereunto set my hand and official seal. Notary Public _ _. _. COMMONWE~t,; y ~F PENNSYIV_ANtA _ Notviat Seal ~ ~ ~~'~ Coon ~ ~ Expires Dec. 28, 2010 Pennsylvania Association of Notaries 5 1 IRREVOCABLE SPECIFIC POWER OF ATTORNEY of MIGNON L. HOLSTEIN Know all men by this presence that I, MIGNON L. HOLSTEIN of Mechanicsburg, Pennsylvania, have made, constituted and appointed and do hereby make, constitute and appoint JAY E. HOLSTEIN of 479 Adam Lane, Mechanicsburg, Pennsylvania 17050, my true and lawful attorney-in- fact for me and in my name. To sign and acknowledge any and all instruments relating to the sale of the property located at 479 Adam Lane, Mechanicsburg, Pennsylvania 17050, including the removal of my name from the mortgage, deed and any other documents related thereto, And I hereby .ratify and corm all acts which may be lawfully done or performed by my said attorney-in-fact as fully as if done or performed by me in person. ( /h ~ ~ _._. - Witness MIGI~9 L. HOLSTEIN COMMONWEALTHOF PENNSYLVANIA COUNTY OF CUMBERLAND SS. On this, the 1~~ _ day of ~C~-i~l~`.~c~-C'~-- 2010, before me, a Notary Public, personally appeared MIGNONL. HOLSTEIN, known to me (or satisfactorily proven) to be the PRINCIPAL whose name is subscribed to the within instrument, and acknowledged that the declarant executed the same for the purposes therein contained. IN WITNESS WHEREOF I hereunto set my hand and official seal. F '~~~ ~ ~ ,j Notary Public ~ ~ ~+C3NIfUlONHV(:AL`tH d~ F~~NNS12~/~1h11A tbt~ Seal lp , Ashley Sipe, IJo1ary P~lic 6 + :i'r}:~efl74Vp., CUaiberiand COii~"'it}~ i+ ~ '•-YtiTIISStOtI ~XpIfPS oC~. '~ ', ?M`,.,...,.,'_'~e~neyhran=~ Asnri~tton ~ ... _.., MODIFICATION TO PROPERTY SETTLEMENT AGREEMENT This Agreement is entered into on July , 2010 by Jay E. Holstein ("JAY") and Mignon Lynn Holstein ("MIGNON"). RECITALS Whereas, the parties executed a Stipulated Property Settlement Agreement ("PSA") on January 28, 2010; and Whereas, JAY listed the real estate for sale in accordance with the PSA but was unable to sell the property; and Whereas, JAY wants to refinance the existing joint mortgage to a lower rate in JAY's name alone, thereby lowering his monthly mortgage payment and relieving MIGNON of any liability for the mortgage. Now Therefore, in consideration of the mutual promises, covenants and undertakings hereinafter set forth and for other good and valuable consideration, receipt of which the parties acknowledge, JAY and MIGNON, each intending to be legally bound, hereby covenant and agree to the terms set forth in this agreement. 1. Deed. Concurrently with signing this Modification, MIGNON will execute a deed transferring her right, title and interest in and to the real estate located at 479 Adam Lane, Mechanicsburg, Cumberland County, Pennsylvania. Page 1 of 2 C 2. No Effect on Eauitable Distribution Payments. MIGNON's execution of this Modification and the Deed shall not modify Paragraph 9 of the PSA, which sets out the payments due MIGNON. 3. No Other Modification. All other terms and conditions of the PSA shall remain in full force and effect. IN WITNESS WHEREOF, the parties have set their hands and seals the day and year first written above. Witness Jay E. Holstein Mignon Lynn Holstein Page 2 of 2 VERIFICATION I verify that the statements made in the foregoing document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities. J olstein Date: '~ ~~ PROOF OF SERVICE I hereby certify that I am this day serving a copy of the foregoing document upon the persons and in the manner indicated below which service satisfies the requirements of Pa. R.C.P. 440: Service by hand-delivery addressed as follows: Elizabeth J. Saylor, Esquire Law Offices of Peter J. Russo, P.C. 5006 E. Trindle Road, Suite 100 Mechanicsburg, PA 17050 Attorneys for Plaintiff Law Office of Theresa Barrett Male 1 Theresa Barrett Male, Esquire Supreme Court # 46439 513 North Second Street Harrisburg, Pennsylvania 17101-1058 (717) 233-3220 Attorneys for Defendant Date: November 1, 2010 LAW OFFICES OF PETER J. RUSSO, P.C. BY: Elizabeth J. Saylor, Esquire PA Supreme Court ID: 200139 5006 E. Trindle Road, Suite 100 Mechanicsburg, PA 17050 Telephone: (717) 591-1755 Facsimile: (717) 591-1756 Email: Isaylor@ pjrlaw.corn Attornevs for Plaintiff Y if MIGNON L. HOLSTEIN : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW JAY E. HOLSTEIN NO. 2010-364 CIVIL TERM Defendant : IN DIVORCE ANSWER WITH NEW MATTER TO DEFENDANT'S PETITION FOR SPECIAL RELIEF PURSUANT TO PA. R.C.P. 1920.43 AND NOW comes the above-named Plaintiff, Mignon L. Holstein, by and through her attorney, The Law Offices of Peter J. Russo, P.C., and avers the following: 1. Admitted. 2. Admitted. 3. Denied. The averment contained in Paragraph 3 references a legal document which controls and any interpretational gloss placed thereon is strictly denied. 4. Denied. The averment contained in Paragraph 4 references a legal document which controls and any interpretational gloss placed thereon is strictly denied. 5. Admitted. 6. Admitted in part and denied in part. It is denied that the parties purchased the Adam Lane property, which is encumbered by a mortgage in the names of both parties, for $345,000.00 in June 2009, shortly before Plaintiff/Respondent informed Mr. Holstein that she no longer wanted to be married. It is admitted that the parties purchased the Adam Lane property in June 2009 for $345,000.00. It is admitted that the parties separated on October 11, 2009, as referenced on Page 1 of the Stipulated Property Settlement Agreement (hereinafter "PSA" ). All other interpretational gloss in Paragraph 6 is strictly denied. 7. Admitted. 8. Denied. The averment contained in Paragraph 8 references a legal document which controls and any interpretational gloss placed thereon is strictly denied. 9. Denied. The averment contained in Paragraph 9 references a legal document which controls and any interpretational gloss placed thereon is strictly denied. 10. Plaintiff/Respondent, after investigation, is without sufficient knowledge to affirm or deny. 11. Plaintiff/Respondent, after investigation, is without sufficient knowledge to affirm or deny the hearsay set forth in Paragraph 11. 12. Plaintiff/Respondent, after investigation, is without sufficient knowledge to affirm or deny the hearsay set forth in Paragraph 12. 13. Plaintiff/Respondent, after investigation, is without sufficient knowledge to affirm or deny the hearsay set forth in Paragraph 13. 14. Denied. The modification does not preserve all terms of the PSA, as more specifically set forth in Plaintiff/Respondent's New Matter set forth below. 15. Denied. The execution of the modification would prejudice and compromise Plaintiff/Respondent's interests, as specifically set forth in Plaintiff/Respondent's New Matter set forth below. 2 16. Admitted in part and denied in part. It is admitted that upon Mr. Holstein's request to modify the PSA to allow him to refinance the marital residence, Ms. Holstein in turn requested that the distributions she.was to receive upon the sale be amended to be received upon the refinance, especially since the financial motivation to sell the marital residence originally relied on by Ms. Holstein would be removed. A true and correct copy of the response to Mr. Holstein's proposal is attached hereto and incorporated herein as Exhibit A. 17. Admitted. By way of further response, Ms. Holstein believes and thus avers that Mr. Holstein does have the ability to make said cash payment and in the very least, that he has ample assets that he could liquidate to make said payment. Ms. Holstein further refused to sign the modification for reasons set forth more specifically below in Plaintiff/Respondent's New Matter. 18. Plaintiff/Respondent, after investigation, is without sufficient knowledge to affirm or deny. By way of further response, any legal fees that Mr. Holstein has incurred have been at Mr. Holstein'''s request, specifically to take a second bite at the apple, open a divorce, and re-negotiate the terms of a PSA that were already bargained for at the assistance of his counsel, in an attempt to get a better deal. It is Ms. Holstein that should be entitled to reimbursement for the legal fees incurred as a result of Mr. Holstein's breach, as set forth more specifically below in Plaintiff/Respondent's New Matter. 19. Plaintiff/Respondent, after investigation, is without sufficient knowledge to aff irm or deny the hearsay set forth in Paragraph 19. 20. Plaintiff/Respondent, after investigation, is without sufficient knowledge to. affirm or deny the hearsay set forth in Paragraph 20. 21. Admitted. By way of further response, it is believed and thus averred that Mr. Holstein's counsel was requesting the POA for Mr. Holstein's use to refinance the property, which is a clear, breach of the PSA entered into by the parties. 22. Admitted. 23. Admitted in part, denied in part. It is admitted that the PSA contemplates only sale of the Adam Lane property. Plaintiff/Respondent, after investigation, is without sufficient knowledge to affirm or deny what Mr. Holstein's counsel has learned and whether or not the refinancing would go through. 24. Admitted with clarification. It is admitted that Ms. Holstein has rejected and continues to reject Mr. Holstein's requested modification to the terms of the PSA that was entered into on January 28, 2010 and incorporated but not merged into a Divorce Decree entered May 5, 2010. All other interpretational gloss set forth in Paragraph 24 is strictly denied. 25. Plaintiff/Respondent, after investigation, is without sufficient knowledge to affirm or deny. 26. Denied. It is denied that through no fault of Mr. Holstein's, the property cannot be marketed until 2011. By way of further response, it is believed and thus averred that property is currently marketed as it should be based on the terms of the PSA entered into by the parties and per the PSA Mr. Holstein has complete control over the property and its marketing. 4 27. Denied. The averment contained in Paragraph 27 is a legal conclusion to which no response is required. 28. Denied. The averment contained in Paragraph 28 is a legal conclusion to which no response is required. 29. Plaintiff/Respondent, after investigation, is without sufficient knowledge to affirm or deny. By way of further response, it is believed and thus averred that Mr Holstein is trying to utilize the Court in an attempt to get abetter deal then what he originally agreed to, which is in breach of the PSA. 30. Denied. It is denied that the Plaintiff/Respondent is not prejudiced by Mr. Holstein refinancing the property and reducing his mortgage payment for reasons set forth more specifically below in Plaintiff/Respondent's New Matter. 31. Denied. It is denied that Mr. Holstein has incurred legal fees as a direct result of Plaintiff/Respondent's refusal to cooperate with him. By way of further response, any legal fees that Mr. Holstein has incurred have been at Mr. Holstein's request, specifically to take a second bite at the apple, open a divorce, and re-negotiate the terms of a PSA that were already bargained for at the assistance of his counsel, in an attempt to get a better deal. It is Ms. Holstein that should be entitled to reimbursement for the legal fees incurred as a result of Mr. Holstein's breach, as set forth more specifically below in Plaintiff/Respondent's New Matter. 32. Denied. The averment contained in Paragraph 32 is a legal conclusion to which no response is required. 33. Denied. The averment contained in Paragraph 33 is a legal conclusion to which no response is required. 5 34. Denied. The averment contained in Paragraph 34 is a legal conclusion to which no response is required. 35. Denied. It is denied that the Plaintiff/Respondent is not prejudiced by Mr. Holstein refinancing the property and reducing his mortgage payment for reasons set forth more specifically below in Plaintiff/Respondent's New Matter. 36. Denied. The averment contained in Paragraph 36 is a legal conclusion to which no response is required. 37. Denied. The averment contained in Paragraph 37 is a legal conclusion to which no response is required. By way of further response, both cases cited within Paragraph 37 are distinguishable as in said cases equitable distribution was not resolved via an agreement/contract but rather through litigation. 38. Denied. The averment contained in Paragraph 38 is a legal conclusion to which no response is required. Plaintiff/Respondent denies all other allegations in paragraphs 1 through 38 of Defendant's Petition for Special Relief Pursuant to PA. R.C.P. 1920.43 that are not specifically admitted. NEW MATTER 39. The prior paragraphs of this Answer with New Matter are incorporated by reference as though fully set forth herein. 40. The parties entered into a PSA wherein both parties were represented by counsel. 6 41. The PSA entered into by the parties was filed with the Prothonotary's office and made a part of the record in this case, and also incorporated, but not merged into the final Divorce Decree. 42. The PSA clearly explains the parties' rights, obligations and responsibilities with respect to the sale of the marital property: a. Paragraph 6 states: i. "Husband and Wife agree that the Marital Residence shall be sold by Husband as soon as possible in good faith and within a reasonable time period, with consideration given to the current real estate market;" ii. "Husband and Wife shall simultaneously herewith execute the proposed Listing Contract with Greg Rothman of RSR Realtors for the sale of the Martial Residence. Wife shall, immediately thereafter, execute an Irrevocable Specific Power of Attorney, in favor of Husband to allow Husband to only market for sale and transfer Wife's ownership interest in the Marital Residence;" iii. "Husband shall, upon the Effective Date be solely responsibility of the Marital Residence, including, but not limited to: a. The sale of the Marital. Residence and any and all responsibilities and costs related thereto; and b. Payment of any outstanding indebtedness thereon, including, but not limited to the mortgage, insurance, taxes, and utilities regarding the Marital Residence from the 7 Effective Date forward, free of any and all right, title, claim or interest of Wife. Husband shall indemnify and hold Wife and her property harmless from any and all liability, cost or expense, including actual attorney's fees, incurred in connection with the Marital Residence." 43. Paragraph 9 of the PSA clearly states that Plaintiff/Respondent is to receive a cash distribution of $20,000.00 which shall be paid within thirty (30) days of settlement on the sale of the Marital Residence as well as the property listed on Exhibit B of the PSA. 44. Paragraph 6 of the PSA states that "Husband and Wife agree that Wife's property set forth on Exhibit B shall remain at the Marital Residence until the property is sold. Husband shall immediately upon entering into an agreement to sell the Martial Residence notify Wife via email of the Settlement Date so that Wife may, at a mutually agreed upon time prior to the Settlement Date, retrieve the property set forth on Exhibit B." 45. Petitioner did riot bargain for the right and/or ability to refinance the property in the event the property was unable to be sold. 46. Petitioner, who is an attorney and was represented by counsel at that time, had the opportunity to request such terms be added to the agreement but did not request such a provision. 47. Paragraph 24 of the PSA clearly states "This Agreement shall constitute a full, complete, and total binding Agreement between the parties concerning support, 8 maintenance, alimony and property settlement, and is precluded from modification EXCEPT if the parties specifically agree to modify this agreement." 48. Petitioner is riot trying to enforce but rather circumvent the terms which the parties bargained for and to which the parties ultimately agreed. 49. Allowing this post-execution, unilateral request for modification would effectively nullify Plaintiff/Respondent's bargained for payment of $20,000.00 and the property listed in Exhibit B of the PSA in that Petitioner will have no incentive to sell the property in order for Plaintiff/Respondent to get her equitable interest as previously negotiated and agreed upon. 50. Petitioner has not even sought to refinance the property in a manner which would provide the $20,000.00 payment or property listed in Exhibit B of the PSA to Plaintiff/Respondent which would place the Plaintiff/Respondent in the same position as selling the property under, the PSA. 51 As adopted by Judge Oler in his decision in Weyant v. Weyant (PACSES NO. 752111625 NO. 302 Support 2010, Page 13, ¶2) dated October 27, 2010, "a court may construe or interpret a property settlement agreement as it would a contract, but it has neither the power nor the authority to modify the agreement unless there is conclusive proof of an invalidating circumstances, such as fraud, mistake or duress. Citing Bianchi v. Bianchi, 2004 PA Super 373, x]11, 359 A.2d 511, 515. 52. No such invalidating circumstances exist in this case. 53. As noted by Judge Oler in the aforementioned decision (Page 13, ¶2), the parties to the marital settlement agreement should be bound by the terms of their agreement. Citing Sabad v. Fessenden, 2003 PA Super 202, ¶10, 825 A.2d 682, 688. 9 54. Plaintiff/Respondent demands that Petitioner adhere to the bargained for terms of the PSA and seeks this court's enforcement of those provisions. 55. Petitioner's actions constitute a breach of the PSA and therefore pursuant to Paragraph 19, Plaintiff/Respondent should be awarded attorney's fees. 56. Plaintiff/Respondent has incurred $1,500.00 in legal fees as a result of Mr. Holstein's breach WHEREFORE, Plaintiff respectfully requests the following relief: 1. Defendant/Petitioner's Petition for Special Relief Pursuant to PA. R.C.P. 1920.43 be DENIED; 2. Plaintiff/Respondent be awarded reasonable attorney's fees in the amount of $1,500.00; and 3. Any other relief that the Court finds just and proper. Date: I Z1, m Peter J.U;'usso, Esquire ID # 72897 ,.)Elizabeth J. Saylor, Esquire D # 200139 5006 E. Trindle Road, Suite Mechanicsburg, PA 17050 PH: (717) 591-1755 FX: (717)591-1756 100 to LAW OFFICES OF PETER J. RUSSO, P.C. VERIFICATION I, Mignon L. Holstein, verify that the statements made in the foregoing document(s) are true and correct. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. Date: J / -9 - 10 l -77 Migrib . Holstein 11 EXHIBIT A Liz Sa for From: Liz Saylor [Isaylor@pjrlaw.com] Sent: Thursday, July 22, 2010 3:30 PM To: 'Theresa B. Male' Subject:, RE: Holstein Hey, Theresa. I apologize for not getting back to you sooner but I did not have time to look over everything until recently b/c I ran out to a conciliation in Cumberland Co. yesterday as soon as I got off the phone with you (sorry if I was short but I literally had my keys, purse and briefcase in hand) and spent all morning in Perry Co. on an Emergency Petition. After looking at everything, I do have some concerns regarding the Modification to the PSA, namely: 1, it does not specifically address the items listed on Exhibit B of the PSA that shall remain at the property until the property is "sold." (page 7); 2. It indicates that it does not affect the payment schedule under Paragraph 9, but Paragraph 9 states that the second payment will be made within 30 days of settlement "on the sale" of the marital residence; and 3, it does not call for the signatures to be notarized, which is required in the modification language. I have left a message with my client to call as soon as possible to discuss. Thanks, Liz t .',%<<' ?.?i I It. If Elizabeth J. Saylor, Esquire Law Offices of Peter J. Russo, P.C. 5006 E. Trindle Road, Suite 100 Mechanicsburg, PA 17050 PH: 717-591-1755 x 104 FX: 717-591-1756 From: Tneresa B. Male rmailto:tbm@tbmesquire.coml Sent: Wednesday, July 21, 2010 4:33 PM To: 'Elizabeth' J. Saylor Esq' Cc: sca tbmesquire.com Jay E. Holstein Esq Subject Holstein Importance: High Hi Liz! Per our conversation this afternoon, I have attached the PSA modification, the 2009 deed, and the new deed by which Mignon will transfer her interest in the property to Jay. We're under a time-constraint with the financing, so I would really appreciate it if you could get Mignon to sign this tomorrow. Mike Pykosh, who is doing the title, work, is willing to pick up the documents at your office and bring them to Jay. Please let me know if this can be accomplished tomorrow, and I'll advise -Mike. Thanks so much for your help. Theresa THERESA BARRETT MALE, ESQUIRE 51:3 NORTH SECOND STREET HARRISBURG, PA 17101-1058 (717) 233-3220 (717) 233-6862 FAX www.tbmesguire.com tbm@tbmesquire.com www.theresamale.com "Nothing in life is to be feared. It is only to be understood." Marie Curie This e-mail (including attachments) is covered by the Electronic Communications Privacy Act, U.S.C. §§ 2510-2521, and is confidential, and legally privileged. This message and its attachments also may be privileged and attorney work product. They are intended for the individual or entity named above. If you are not the intended recipient, please do not read, copy, use, or disclose this communication to others. You are hereby notified that any dissemination, distribution or copy of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately. A S©ve a tree please do riot print this e-mail unless you really need to. No virus found in this incoming message. Checked by AVG www.avq.com Version: 8.5.441 / Virus Database: 271.1.1/3021 - Release Date: 07/22/10 06:36:00 2 CERTIFICATE OF SERVICE I, Amber L. Southard, hereby certify that I am on this day serving a copy of the foregoing Answer and New Matter to Defendant's Petition for Special Relief Pursuant to Pa. R.C.P. 1920.43 upon the person(s) and in the manner indicated below: US Regular Mail addressed as follows: Theresa Barrett Male, Esquire 513 North Second Street Harrisburg, PA 17101 Counsel for Defendant Date: 10110 ??" ??? ( ? vzw-?-' I/- Amber L. Southard, Paralegal 12 MIGNON L. HOLSTEIN, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. JAY E. HOLSTEIN, DEFENDANT NO. 10-364 CIVIL IN RE: STATUS CONFERENCE ORDER OF COURT AND NOW, this 16th day of November, 2010, upon consideration of the Petition for Special Relief filed by the Defendant, IT IS HEREBY ORDERED AND DIRECTED that a status conference with counsel will be held on Monday, November 29, 2010, at 9:00 a.m. in chambers of Courtroom No. 2 of the Cumberland County Courthouse, Carlisle, Pennsylvania. By the Court, ?Elizabeth J. Saylor, Esquire Attorney for Plaintiff ./Theresa Barrett Male, Esquire Attorney for Defendant bas IZT 1'es M-V-tLC ?* ? ?AA\ v - M. L. Ebert, Jr., J. C'7 C_ fV o .,C3 MW M = ` cn r - ? v ? TS rn ? r'j -i ? MIGNON L. HOLSTEIN, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. JAY E. HOLSTEIN, DEFENDANT NO. 10-364 CIVIL IN RE: PETITION FOR SPECIAL RELIEF ORDER OF COURT AND NOW, this 29th day of November, 2010, after status conference with counsel in the above captioned matter, IT IS HEREBY ORDERED AND DIRECTED that a hearing will be held on Wednesday, April 6, 2010, at 1:30 p.m. in Courtroom No. 2 of the Cumberland County Courthouse, Carlisle, Pennsylvania. ,,"Elizabeth J. Saylor, Esquire Attorney for Plaintiff Theresa Barrett Male, Esquire Attorney for Defendant bas C I k -s' ew-oa. t LL /[Aci/[ v ryl By the Court, 0 M. L. Ebert, Jr., J. VT I -v Cnr) N x7Q C7 O ?a+ = Ac= CDfi :Z D --c MIGNON L. HOLSTEIN, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. JAY E. HOLSTEIN, DEFENDANT NO. 10-364 CIVIL IN RE: PETITION FOR SPECIAL RELIEF AMENDED ORDER OF COURT AND NOW, this 30th day of November, 2010, IT IS HEREBY ORDERED AND DIRECTED that the Order of Court dated November 29, 2010, is amended to provide that the hearing date is actually Wednesday, April 6, 2011 at 1:30 p.m. The remainder of the order will be in full force and effect. " Elizabeth J. Saylor, Esquire Attorney for Plaintiff eresa Barrett Male, Esquire Attorney for Defendant bas /l/3 o?lO By the Court, - s' - ? ?A 0,\., \ / M. L. Ebert, Jr., N 0 J. r? r." C3 z m rn? -? C.) D te co ? a G IF r - = Do a - =o =o v z_t D C N C) m X w D 4t Law Office of Theresa Barrett Male Theresa Barrett Male, Esquire Supreme Court # 46439 513 North Second Street Harrisburg, PA 17101-1058 (717) 233-3220 tbm a tbmesguire.com Attorneys for Defendant c m ° - r 2t y r n ` 11 n rn - Wr _ r n C:) C-J x ? C) -ri . ? CA ?. ? COURT OF COMMON OF PLEAS CUMBERLAND COUNTY, PENNSYLVANIA MIGNON L. HOLSTEIN Plaintiff V. JAY E. HOLSTEIN Defendant TO THE PROTHONOTARY: : NO. 10-364 Civil Term CIVIL ACTION - DIVORCE PRAECIPE Please withdraw Defendant's Petition for Special Relief Pursuant to Pa. R.C.P. 1920.43. The underlying issue is moot because the lock-in rate to refinance the joint mortgage expired on November 30, 2010. ?- Theresa Barrett Male, Esquire Attorney for Defendant Date: December 14, 2010