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HomeMy WebLinkAbout01-0568IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. GLASS :: Plaintiff :: THOMAS A. ECKER, :: Defendant :: CIVIL ACTION--EQUITY NO. 0l- ...5"6, ~' EQUITY TERM PARTITION ACTION NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 Roger M. Morgenthal, Esquire Attorney ID# 17143 FISHMAN & MORGENTHAL Attorneys for Plaintiff 95 Alexander Spring Rd., Suite 3 Carlisle, PA 17013 (717) 249-6333 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. GLASS :: Plaintiff :: VS. THOMAS A. ECKER, :: Defendant :: CIVIL ACTION--EQUITY NO. 01- ~Yt. $/ EQUITY TERM PARTITION ACTION COMPLAINT And now comes the plaintiff, Patricia A. Glass, by her attorneys Fishman & Morgenthal, and states the following cause of action: 1. PIaintiffis Patricia A. Glass, an adult individual residing at 21 Bare Road, Mechanicsburg, Cumberland County, Pennsylvania 17050. 2. Defendant is Thomas A. Ecker, an adult individual who formerly resided at 21 Bare Road, Mechanicsburg, Cumberland County, Pennsylvania 17050, but whose present residence address is not known to Plaintiff. 3. Plaintiff and Defendant are the owners of certain real estate in Cumberland County as described below, and all the interests of the parties in the property are held as Joint Tenants with the Right of Survivorship or as Tenants in Common and are undivided. 4. The parties acquired title to the property known as 21 Bare Road, Mechanicsburg, Cumberland County, Pennsylvania 17050, by deed from Jon V. Fortunato and Janet L. Fortunato, husband and wife, dated July 30, 1998, and recorded in the Office of the Recorder of Deeds of Cumberland County in deed book 182 at page 578, wherein said P:\roger\lJtigation\Olass Partition Complaint.doc Jori V. Fortunato and Janet L. Fortunato conveyed to the parties all that certain tract or parcel of land with the improvements thereon erected situate in Silver Spring in the County of Cumberland, more particularly described in said deed, a copy of which is attached to, made part hereof and marked Exhibit "A," to be held by the parties as Joint Tenants with the Right of Survivorship in equal shares. 5. Said property was conveyed to the parties under and subject to a certain mortgage of $115,300.00 secured on the said property, dated July 31, 1998 and recorded in the Office of the Recorder of Deeds of Cumberland County in mortgage book 1472 at page 341, and assigned to Fleet Mortgage Corporation by an assignment recorded July 31, 1998 and recorded in the said Office in miscellaneous book 584 at page 490. 6. No person other than the parties to this suit has any interest in the property, which is presently in the possession of the Plaintiff with occasional visits thereto by the Defendant. 7. No partition or division of the property has ever been made, although Plaintiff has requested the Defendant to join with her in making one. WHEREFORE, Plaintiff demands that: (a) the Court decree partition of the real estate; (b) the share or shares to which the respective parties are entitled be set out to them in severalty and that all proper and necessary conveyances and assurances be executed for carrying such partition into effect; and that, if the real estate cannot be divided without prejudice to or spoiling the whole, such proper and necessary 2 P:\roger\litigation\Glass Partition Complaint. doc (c) sale or sales of the same may be made by such persons and in such manner as the Court may direct; such other and further relief be granted as the Court deems just and proper. Roger M. Morgenthal, Esquire FISHMAN & MORGENTHAL 95 Alexander Spring Road, Suite 3 Carlisle, PA 17013 (717) 249-6333 Attorney for Plaintiff 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. GLASS :: Plaintiff :: :; VS. THOMAS A. ECKER, :: Defendant :: CIVIL ACTION--EQUITY NO. 01- EQUITY TERM PARTITION ACTION VERIFICATION I, PATRICIA A. GLASS, verify that I am the plaintiff in this action and that the Complaint as filed is tree and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. § 4904 relating to unswom falsification to authorities. PATRICIA A. GLASS Date: J~-98-20C1 HON 08:25 PJ'I ROUSE OFFICE F.~HO. 717 763 17~ · ION ¥. FORTUNATO asd JANWI' L, FORTUNATO, Husba~Id & ~i. d~ted ~ t~ Grant~, ~tn~, that t~ G~to~, f~ and in ~ ~ O~ HU~RED ~IGH~ ~OUSAND Nma ~n~ ~ ~1100 ~LLAR$ lal~ul money afire ~nit~' ~at~ af A~, to t6e ~an~rt tn hand ~lt ~d ~y ~id ac~l~l ~d t~ O~or~ ~i~ t~h ~lly ~t~ do by th~ p~ m~ ~tieulady d~crl~ m ~o~ : ~ ~ ~a. I 1 on a ~am ~ ~atl~ "~n af ~u~ Manor" dated ~tober 26, ]974 $~1~ 1" - 50' ~ ~dng T~fp. ~m~d ~, ~la ~r ~u~ of E~t 2 ~alk~, P.E., R.~ < M~I~bu~. Pt~ia, ~t I ~ 2 whi~ ma~ m~ ~ni~l~y ~ndM ~ ~crl~d at folly: BKG~G at a poha ~ I~ ~t~y ~ld~ of ~ R~ ~-580) at th~ sou~.,t ~ter of /~t Na 12 at ~ko~ ~ t~e a~d ~; t~en~ ~tk 16 ~ ]8 ~nt~ 36 e~t al~ t~e ~er~ ~ ~ ~are R~E a di~an~ ~ ] l O.~ f~t to a ~int at the 12; th~ nonb 7~ d~ ;~ ~ mtnut~ ~4 ~ ~ alo~ ~ Ne. 12 a d~n~ ~ 229.12 f~l to a p~nt o~ t&e ~ ~ of ~a~ R~d, ~ t~e ~t and pla~ of / r' */I * FAX ND. 7~? 76] 1748 P, 03 Deed datad May 28,1991 ttnd r~corded May $1, I gg l ln th~ Offic~ of th~ Re~order of D~tds tn omni'or C#mberland C~n~y, Pennsylvania, in ~ llook D-$$, page 419. g~anted and conwyed JRN-OS-2001 ~0~ 18:37 RH ROUSE OFFICE F~ NO, ?I7 761 ]748 P, 02 ~fit /orever. A nd th~ Grantors covenant t~at. e. eeept ~s nu~ ~ he~ ~t f~. t~y do and ~1/ W~g~t ond~f~d the ~ ~d~. he,train ~ ~nan~ ~by ~V~ in ~O in*~m~t a~y ~y s~ ~ ~at~ or ~err~ to ~ nome ~:~lq~T L. ]~oR'rLfNATO F~ NO. 717 761 1748 P, 05 ~OMMOI~,~RALTH O~ ~.NNSYLVARxk : executed ~e same for the p~r~Ses therein SHERIFF'S RETURN - CASE NO: 2001-00568 P ~r?. COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND GLASS PATRICIA A VS ECKER THOMAS A REGULAR WILLIAM DIEHL Cumberland County, Pennsylvania, says, the within COMPLAINT ~ EQUITY ECKER THOMAS A DEFENDANT , at 0014:41 HOURS, on at POE: KEYSTONE HEALTH PLAN CTL 300 CAMP HILL, PA 17011 THOMAS ELICKER a true and attested copy of COMPLAINT - EQUITY NOTICE Sheriff or Deputy Sheriff of who being duly sworn according to law, was served upon the the 2nd day of February , 2001 CAMP HILL CORP. DR by handing to together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 9.30 Affidavit .00 Surcharge 10.00 .00 37.30 Sworn and Subscribed to before me this ~ day of J~ ~/ A.D. So Answers: R. T~mas Kline 02/05/2001 FISHMAN & MORGENTHAL By: PATRICIA A. GLASS, Plaintiff vs. THOMAS A. ECKER, Defendant IN THE COURT OF COM~0N PLEAS CUMBERLAND COUNTY, PENNA. NO. 568 Equity Te~ PARTITION ACTION ANSWER 1. Admitted. 2. Admitted in part; denied in part. Defendant did reside at 21 Bare Road, Mechanicsburg, Cumberland County, Pennsylvania. His current address is 145 Cumberland County, Pennsylvania. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted in part; denied in part. Tory Circle, Enola, There has been no partition or division of the property. Defendant has attempted to negotiate this matter with Plaintiff who refuses to make any offer to resolve this matter. WHER~FORE, Defendant demands that: a. The Court decree partition of the real estate; b. the share or shares to which the respective parties are entitled be set out to them in severalty and that all proper and necessary conveyances and assurances be executed for carrying such partition into effect; and that, if the real estate cannot be divided without prejudice to or spoiling the whole, such proper and necessary sale or sales of the same may be made by such persons and in such manner as the Court may direct; Co Court deems just and proper. such other and further relief be granted as the Respectfully submitted: J ith A. Calki~n,~E~ ~Defe~dant 2201 North Second Street Harrisburg, PA 17110 (717) 238-2312 Commonwealth of Pennsylvania: County of Dauphin : I, Thomas A. Ecker verifies that the within Answer true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. CERTIFICATE OF SERVICE I, Judith A. Calkin, Esquire, do hereby certify that a true and correct copy of the Answer was served by U.S. postal delivery, regular delivery from Harrisburg, PA. postage-prepaid to the following person: Roger Morgenthal, Esquire 95 Alexander Spring Road Suite 3 Carlisle, PA 17013 Dated: ~/~/d'/ J~th A. Calkin, Esq. 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. GLASS :: Plaintiff :: VS. THOMAS A. ECKER, :: Defendant :: CIVIL ACTION--EQUITY NO. 0l- 5-(a8' EQUITY TERM PARTITION ACTION ORDER DIRECTING PARTITION OF REAL PROPERTY AND NOW, the day of t*~.'~ ,2001, upon consideration of Plaintiff's motion for the entry of an order directing partition because of Defendant's admission, and it appearing that the Defendant has admitted the averments of the complaint and the relief requested in his answer, it is hereby ORDERED that partition be made of the real property described in the complaint among the named parties in proportion to their respective interests, as follows: To Patricia A. Glass One-Half Share To Thomas A. Ecker One-Half Share · ! The, parties ~rneys are directed/(o appear for a preliminary conference on the~"~day of~ ,2001;in Court Room No. J~ of the Cumberland County Courthouse, One Courthouse Square, Carlisle, Permsylvania, to consider the matters set forth in Rule 1558. By the Co~ \\i~IAINSERVER\PUBLIC~roger\Family Law\Patti Glass Case\Glass v. Ecker\Motion for Order Directing Partition.doc IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. GLASS :: Plaintiff :: :; VS, :: THOMAS A. ECKER, :: Defendant :: CIVIL ACTION--EQUITY NO. 01- ~"~',~ EQUITY TERM PARTITION ACTION MOTION FOR ORDER DIRECTING PARTITION Plaintiff, Patricia A. Glass, by the undersigned counsel, Roger M. Morgenthal, Esquire, moves the Court pursuant to Pa. R.C.P. No. 1557 for the entry of an order directing partition of the real property described in Plaintiff's complaint according to the interests of the named parties as alleged in the said complaint, a copy of which is attached hereto as Exhibit "A." The basis for Plaintiff's motion is that the Defendant has filed an answer admitting the allegations of the complaint and the relief requested. A copy of the answer of the Defendant is attached hereto as Exhibit "B." WHEREFORE, Plaintiff requests that the property at issue be partitioned as aforesaid. Respectfully submitted, Patricia A. Glass, Plaintiff Roger M. Morgentha, Esquire FISHMAN & MORGENTHAL Attorneys for Plaintiff 95 Alexander Spring Road, Suite 3 Carlisle, PA 17013 (717) 249-6333 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. GLASS :: Plaintiff :: VS. THOMAS A. ECKER, :: Defendant :: CIVIL ACTION--EQUITY NO. 01-00568 EQUITY TERM PARTITION ACTION CERTIFICATE OF SERVICE I, Roger M. Morgenthal, Esquire, hereby certify that I have served a tree and correct copy of the foregoing MOTION FOR ORDER DIRECTING PARTITION upon the Defendant's attorney, by United States Mail, First Class, Postage Prepaid, on May 23,200 I, at the following address: Date: May23, 2001 Judith A. Calkin, Esquire 2201 North Second Street Harrisburg, PA 17110 Roger M. Morgenthal, Esquire ID#17143 FISHMAN & MORGENTHAL 95 Alexander Spring Road, Suite 3 Carlisle, PA 17013 (717) 249-6333 Attorney for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. GLASS :: Plaintiff :: THOMAS A, ECKER, :: Defendant :: CIVIL ACTION--EQUITY NO. 01- ~D.J'~J~ EQUITY TERM PAKTITION ACTION NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the ease may proceed without you and a judgment may be entered against you by the court without farther notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 Attorney ID# 17143 FISHMAN & MORGENTHAL Attorneys for Plaintiff 95 Alexander Spring Rd., Suite 3 Carlisle, PA 17013 (717) 249-6333 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. GLASS :: Plaintiff :: VS. THOMAS A. ECKER, :: Defendant :: CIVIL ACTION--EQUITY NO. 01- 00.r"6S" EQUITY TERM PARTITION ACTION COMPLAINT And now comes the plaintiff, Patricia A. Glass, by her attorneys Fishman & Morgenthal, and states the following cause of action: 1. Plaintiff is Patricia A. Glass, an adult individual residing at 21 Bare Road, Mechanicsbarg, Cumberland County, Pennsylvania 17050. 2. Defendant is Thomas A. Ecker, an adult individual who formerly resided at 21 Bare Road, Mechanicsburg, Cumberland County, Pennsylvania 17050, but whose present residence address is not known to Plaintiff. 3. Plaintiff and Defendant are the owners of certain real estate in Cumberland County as described below, and all the interests of the parties in the property are held as Joint Tenants with the Right of Survivorship or as Tenants in Common and are undivided. 4. The parties acquired title to the property known as 21 Bare Road, Mechanicsburg, Cumberland County, Pennsylvania 17050, by deed from Jon V. Fortunato and Janet L. Fortunato, husband and wife, dated July 30, 1998, and recorded in the Office of the Recorder of Deeds of Cumberland County in deed book 182 at page 578, wherein said PSroger\Fannly Law\Patti Glass Case\Glass v. Ecker\Olass Partmon Complaint.doc ~ Jon V. Fortm~ato and Janet L. Fortunato conveyed to the parties all that certain tract or parcel of land with the improvements thereon erected situate in Silver Spring in the County of Cumberland, more particularly described in said deed, a copy of which is attached to, made part hereof and marked Exhibit "A," to be held by the parties as Joint Tenants with the Right of Survivorship in equal shares. 5. Said property was conveyed to the parties under and subject to a certain mortgage of $ I 15,300.00 secured on the said property, dated July 31, 1998 and recorded in the Office of the Recorder of Deeds of Cumberland County in mortgage book 1472 at page 341, and assigned to Fleet Mortgage Corporation by an assignment recorded July 31, 1998 and recorded in the said Office in miscellaneous book 584 at page 490. 6, No person other than the parties to this suit has any interest in the property, which is presently in the possession of the Plaintiff with occasional visits thereto by the Defendant. 7. No partition or division of the property has ever been made, although Plaintiffhas requested the Defendant to join with her in making one. WHEREFORE, Plaintiff demands that: (a) the Court decree partition of the real estate; (b) the share or shares to which the respective parties are entitled be set out to them in severalty and that all proper and necessary conveyances and assurances be executed for carrying such partition into effect; and that, if the real estate cannot be divided without prejudice to or spoiling the whole, such proper and necessary P:\roger\Famfly Law~Patt~ Glass Case\Glass v. Ecker\Glass Partition Complaint.doc (c) sale or sales of the same may be made by such persons and in such manner as the Court may direct; such other m~d further relief be granted as the Court deems just and proper. Roger M. MorgenthaI, Esquire FISHMAN & MORGENTHAL 95 Alexander Spring Road, Suite 3 Carlisle, PA 17013 (717) 249-6333 Attorney for Plaintiff 3 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATR1CIA A. GLASS :: Plaintiff :: VS. THOMAS A. ECKER, :: Defendant :: CIVIL ACTION--EQUITY NO. 01- EQUITY TERM PARTITION ACTION VERIFICATION I, PATR1CIA A. GLASS, verify that the facts averred in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to tmsworn falsification to authorities. Date: February 1, 2001 / ~-/6 Patricia A. Glass PATRICIA A. GLASS, Plaintiff VS. THOMAS A. ECKER, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, _~ENNA. NO. 568 Equity Term PARTITION ACTION AN S W E K 1. Admitted. 2. Admitted in part; denied in part. Defendant did reside at 21 Bare Road, Mechanicsburg, Cumberland County, Pennsylvania. His current address is 145 Tory Circle, Enola Cumberland County, Pennsylvania. 3. Admitted. 4. Admitted. 5. Admitted. ~ !- "' 6. Admitted. 7. Admitted in part; denied in part. There has been partition or division of the property. Defendant has attampted to negotiate this matter with Plaintiff who refuses to make any offer to resolve this matter. WHEREFORE, Defendant demands that: a. The Court decree partition of the real estate; b. the share or shares to which the respective parties are entitled be set out to them in severalty and that all proper and necessary conveyances and assurances be executed for carrying such partition into effect; and that, if the real estate cannot be divided without prejudice to or spoiling the whole, such proper and necessary sale or sales of the same may be made by such persons and in such manner as the Court may direct; Court deems just and proper. such other and further relief be granted as the Respectfully submitted: J ith A. Calki~n,'E~ ~Defe~dant 2201 North Second Street Harrisburg, PA 17110 (717) 238-2312 I, Judith A. Calkin, Esquire, do hereby certify that a true and correct copy of the Answer was served by U.S. postal delivery, regular delivery from Harrisburg, PA. postage-prepaid to the following person: Roger Mor~enthal, Esquire 95 Alexander Spring Road Suite 3 Carlisle, PA 17013 Dated: Commonwealth of Pennsylvania: County of Dauphin : I, Thomas A. Ecker verifies and correct. I understand that false that the within Answer true statements herein are made unsworn falsification to authorities. subject to the penalties of 18 Pa.C.S. Section 4904, reiating to P~ TRICIA A. GLASS THOMAS A. ECKER : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : : NO. 2001-0568 EQUITY TERM ORDER OF COURT AND NOW, this 6T~ day of AUGUST, 2001, it is hereby ordered and directed that a conference is scheduled in Chambers for Wednesday, August 22, 2001, at 8:30 a.m. Edward E. Guido, Roger M. Morgenthal, Esquire 95 Alexander Spring Road Carlisle, Pa. 17013 Judith A. Calkin, Esquire 2201 North Second Street Harrisburg, Pa. 17110 :sld IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. GLASS :: Plaintiff :: VS. :: THOMAS A. ECKER, :: Defendant :: :: CIVIL ACTION--EQUITY NO. 2001-0568 EQUITY TERM PARTITION ACTION PETITION FOR RULE TO SHOW CAUSE And now comes Petitioner, Patricia A. Glass, and states the following application for relief: 1. Petitioner is Patricia A. Glass, Plaintiff in the above captioned matter, of 21 Bare Road, Mechanicsburg, Cumberland County, Pennsylvania. 2. Respondent is Thomas A. Ecker, Defendant in said matter, who resides at 219 West Locust Street, Mechanicsburg, Cumberland County, Pennsylvania. 3. Since the filing of the above captioned Partition action, the parties have engaged in negotiations carried out between their respective attorneys, Roger M. Morgenthal, Esquire on behalf of Petitioner and Judith A. Calkin, Esquire, on behalf of Respondent. 4. By an Order of Court dated August 6, 2001, a copy of which is attached hereto as Exhibit "A," Hon. Judge Guido scheduled a conference in the Partition case for August 22, 2001, at 8:30 a.m. ?;\roger\FarIfily Law\Patti Glass Case\Glass v. Ecker\Petitlon for rule,doc 10. The attorneys for both parties continued to negotiate in an effort to settle the case prior to the scheduled conference, and on Tuesday August 21, 2001, Attorney Calkin called Attorney Morgenthal to present an offer from Mr. Ecker. Said offer included the payment of the stun of $2,000.00 cash by Petitioner to Respondent in consideration for Respondent conveying to her his interest in the subject premises; and there were other waivers and accommodations on behalf of both parties included in the proposal. After discussing the proposal with his client, Attorney Morgenthal received authorization to accept the proposal from Respondent. Immediately, Attorney Morgenthal wrote and faxed a letter of acceptance to Attorney Calkin, attached hereto as Exhibit "B," and he also called Judge Guido's secretary to cancel the conference referred to above. In accordance with an understanding between the attorneys, Attorney Morgenthal prepared several documents including a settlement agreement, attached hereto as Exhibit "C," and a deed conveying Respondent's interest in 21 Bare Road to Petitioner, attached hereto as Exhibit "D." Following a review of the documents by Attorney Calkin, who requested several small changes, the documents were put into final form and delivered to Attorney Calkin's office in Harrisburg on August 31, 2001, so that her client could sign them. A check in the amount of $2,000.00 was Pi\roger\Far0ily Law\Patti Glass Case\Glass v. Ecker\Petition for rule.doc 11. 12. 13. 14. 15. also delivered to Attorney Calkin for release to her client when he had executed the documents. Petitioner had applied for and received a mortgage commitment from Gateway Funding Diversified Mortgage Services of Mechanicsburg, for which she incurred substantial costs for application fee, credit report charge and other items. The purpose of the mortgage was to refinance the mortgage on the subject property, so that Respondent could be relieved on liability on an existing mortgage owed jointly by the parties. At all times, it was stressed to Attorney Calkin that the Petitioner's mortgage commitment would expire on September 17, 200 l, and that it was essential that Respondent sign the docmnents promptly to enable time for the mortgage closing to occm' before the deadline. Petitioner believes and therefore avers that Attorney Calkin acted diligently to advise her client of his responsibilities in the matter and that it was essential that the documents be signed. Despite the best efforts of his attorney, Respondent refused to communicate with Attorney Calkin, to sign the documents or to otherwise act in accordance with the negotiated settlement. Attorney Calkin returned the deposit check to Attorney Morgenthal on September 19, 2001, with a letter attached hereto as Exhibit "E." Respondent never expressed any disagreement with the terms of the agreement as negotiated, nor did he indicate that he would not sign; in P~\roger\Family Law,Patti Glass Case\Glass v, Eckerh°etition for rule.doc 16. 17. 18. 19. fact, it is believed that he repeatedly told his attorney that he would be in to sign them. Respondent failed to comply with his obligation to sign the documents prior to September 17, 2001, and the mortgage commitment obtained by Petitioner has expired. While said commitment could be renewed by Petitioner, there will be additional fees required for reapplication. The agreement entered into by Attorney Calkin had been approved by Respondent, and the correspondence and the documents prepared by the attorneys contain uncontroverted evidence as to the material terms of their agreement. Petitioner believes and therefore avers that the case of Rocker v. Bi~ Spring School District, 699 A.2d 1331 (1997) controls the issues of this matter. Petitioner has been damaged financially in the following ways by the failure of Respondent to comply with the settlement agreement: A. She has lost substantial application and related fees in obtaining the mortgage, which expired due to Respondent's actions. B. She has incurred substantial attorney's fees, and will continue to incur the same, in preparation of the settlement documents and in attempting to obtain Respondent's compliance with the settlement. C. She will incur new fees to obtain a new mortgage commitment. 4 Pi\roger\Family Law\Patti Glass Case~Glass v, Ecker\Petition for rule.doc D. She may be required to pay a higher rate of interest on any new mortgage compared to the one that was not closed by September 17, 2001. 20. To the best of Petitioner's knowledge, Respondent has continued to ignore his attorney's communications, and his intentions in the matter are unknown. WHEREFORE, Petitioner prays your Honorable Court to grant a Rule to Respondent to Show Cause, if any he may have, why he should not be required to comply with the terms of the negotiated agreement; why he should not be charged with repayment of the costs and expenses incurred by Petitioner as a result of his breach of the negotiated agreement; and why Petitioner should not be afforded such other relief as the Court may deem necessary and appropriate. Respectfully submitted, Roger M. Morgenthal, Esquire, ID# 17143 SALZMANN, DePAULIS, FISHMAN & MORGENTHAL, P.C. 95 Alexander Spring Road, Suite 3 Carlisle, PA 17013 (717) 249-6333 Attorney for Petitioner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. GLASS Plaintiff VS. THOMAS A. ECKER, TERM Defendant CIVIL ACTION--EQUITY NO. 01- 568 EQUITY PARTITION ACTION VERIFICATION I, PATRIC1A A. GLASS, verify that the facts averred in the foregoing Petition for Rule to Show Cause are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Date: September 27, 2001 Patricia A. Glass IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATPdCIA A. GLASS :: Plaintiff :: VS. THOMAS A. ECKER, :: Defendant :: CIVIL ACTION--EQUITY NO. 01-00568 EQUITY TERM PARTITION ACTION CERTIFICATE OF SERVICE I, Roger M. Morgenthal, Esquire, hereby certify that I have served a true and correct copy of the foregoing PETITION FOR RULE TO SHOW CAUSE upon the Defendant's attorney, by United States Mail, First Class, Postage Prepaid, on September 28,2001, at the following address: Judith A. Calkin, Esquire 2201 North Second Street Harrisburg, PA 17110 Roger M. Morgenthal, Esquire ID#17143 SALZMANN, DePAULIS, FISHMAN & MORGENTHAL, P.C. 95 Alexander Spring Road, Suite 3 Carlisle, PA 17013 (717) 249-6333 Attorney for Plaintiff Date: Sevtember 28~ 2001 PATRICIA A. GLASS THOMAS A. ECKER : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA . : NO. 2001-0568 EQUITY TERM ORDER OF COURT AND NOW, this 6TM day of AUGUST, 2001, it is hereby ordered and directed that a conference is scheduled in Chambers for Wednesday, August 22, 2001, at 8:30 a.m. Edward E. Guido, J. Roger M. Morgenthal, Esquire 95 Alexander Spring Road Carlisle, Pa. 17013 Judith A. Calkin, Esquire 2201 North Second Street Harrisburg, Pa. 17110 :sld Steven J. Fishman Roger M. Morgentha$ August 21,2001 FISHMAN & MORGENTHAL Law 95 Alexander Spring Road, Suite 3 Carlisle, Pennsylvania 17013 -9137 E-MAIL: roger~carlislelaw.com (717) 249-6333 FAX (717) 249-7334 Judith A. Calkin, Esquire 2201 North Second Street Harrisburg, PA 17110 RE: Glass v. Ecker Dear Judy: I am going to send this by fax only. This will confirm that my client will pay the sum of $2,000.00 for all your client's right, title and interest in the premises. She will have that money to me for holding in my escrow account by the end of the week, and in the meantime I'll work on the documents necessary to conclude the matter. I called Judge Guido's secretary to cancel the pre-trial for tomorrow. She asked that I provide a Praecipe to Settle and Discontinue the Partition action at the appropriate time, and I assured her I would do so. My client will be refinancing the mortgage within 60 days--probably within 30~to take your client off the obligations, and my thinking is that we could conclude a written agreement that would permit the deed to come to her, and the money to him, almost immediately, while preserving any issues that have to be taken care of later, like the refinancing. Please do what you can to get lfim to move ahead with removing his personal property from the home--it worked well, I believe, when his friends came for some of the things. I'll try to have a draft of the agreement, deed, etc., to you by the end of the week. Thanks for your cooperation. Copy by e-mail: Patti Glass Very truly yours, Roger~orgenthal, Esquire AGREEMENT This Agreement is dated the day of September 200 I, by and between PATRICIA A. GLASS, of 21 Bare Road, Mechanicsburg, Cumberland County, Pennsylvania, hereinafter referred to as "Glass;" and THOMAS A. ECKER, of 219 West Locust Street, Mechanicsburg, Cumberland County, Pennsylvania, hereinafter referred to as "Ecker." WHEREAS, Glass and Ecker (also referred to herein as "the parties"), unmarried persons, purchased a tract of land with a dwelling house known as 21 Bare Road, Mechanicsburg, PA 17055, (hereinafter "the property") as Joint Tenants with Right of Survivorship, having purchased said property on or about July 31, 1998, by a deed recorded in Cumberland County Deed Book 182 at page 578; and WHEREAS, the parties established a joint residence in the property, moving personal possessions belonging to them individually onto the premises as well as acquiring certain items jointly that were also located there; and WHEREAS, the parties were joint obligors on a Mortgage to PNC Bank dated July 31, 1998 secured by the property, and later entered into a personal loan from Glass' credit union, Members First, that was used for joint purposes; and WHEREAS, as a result of certain unhappy differences between them, the parties separated, with Glass continuing to live in the property and Ecker establishing a residence elsewhere; and WHEREAS, the parties desire to enter into a mutual Agreement to resolve and settle all matters between them that have arisen from their relationship as joint owners and residence of the property and all other matters and affairs between them. NOW THEREFORE, in consideration of the mutual obligations, payments and transfers set forth hereafter, and with the intention to be bound legally hereby, the parties do agree as follows: Ecker agrees to convey all his right, title and interest in the premises known as 21 Bare Road, Mechanicsburg, PA 17055, to Glass, by executing a deed for said premises contemporaneously with the execution of this Agreement. In consideration of the conveyance by Ecker of the said property, Glass agrees to pay to Ecker upon the execution and acknowledgment of said deed the sum of $2,000.00 cash. As further consideration of the said conveyance, Glass agrees to refinance the said mortgage to PNC Bank (now serviced by Washington Mutual Home Loans, Inc.) and the Members First loan so as to pay off the existing P;\roger\Fqmily Law\Patti Glass Case\Sett Agreement.doc o o joint obligations and release Ecker from further liability thereon, said refinancing to take place contemporaneously with the delivery of said deed to Glass. Glass shall hold Ecker harmless from any and all claims and liabilities on the PNC mortgage and Members First personal loan. As a further consideration of the said conveyance, Glass waives, releases and discharges Ecker from any claim for amounts that may be due from Ecker as pan of an oral agreemem for his contribution of certain sums toward the mortgage and credit union loan. Ecker, in consideration of the refinance of said obligations and the waiver of any claim for contribution from him of amounts toward payment of those obligations, assigns to Glass any amounts that may be held by either lender as an escrow toward taxes and insurance, or for any other reason; and he waives the right to claim any mortgage interest deduction for tax purposes for the tax year 2001. Ecker has obtained all of his personal property from 21 Bare Road, Mechanicsburg, PA 17055, prior to the execution of this agreement. He waives all claim to any other personalty located there. Ecker shall return to Glass, on or before September 30, 2001, any and all personal property of Glass that is in his possession or under his control, including but not limited to the bird feeder, the key to the riding mower, her high school yearbooks, high school diploma, wedding album and Bibles. Glass and her attorney, Roger M. Morgenthal, Esquire, agree that they will send a written request to Glass' employer, asking that a ban established by Columbia Management, Inc., December 22, 2000, prohibiting Ecker from entering upon Glass' place of employment in Camp Hill, Pennsylvania, be lifted so that Ecker can be on that premises on business for his employer. Ecker agrees that if the ban is lifted, he will enter thereon only on his employer's business and not attempt to make contact with Glass unless it is absolutely necessary as a result of his employment duties. Ecker acknowledges that the ban was placed by Glass' employer, and that it is possible that despite the best efforts of Glass and her attorney, the employer may decide not to lift the ban. The parties declare their willingness to cooperate in good faith to resolve any issues of their relationship not covered by this Agreement, whether omitted through inadvertence or for any other reason. Neither party will do anything that would disparage the reputation of the other within the community, professionally or socially. The terms of this Agreement shall be kept confidential, except as reasonably required by law or through necessity, such as disclosure to tax gdvisers, etc. P.:~roger\F0mily Law\Patti Glass Case\Sett Agreement.doc 10. No modification, rescission, or amendment of this agreement shall be effective unless in writing signed by each of the parties hereto. 11. All acts contemplated by this agreement shall be construed and enforced under the laws of the Commonwealth of Pennsylvania. 12. This agreement, except as otherwise expressly provided herein, shall bind the parties hereto, and their respective heirs, executors, administrators, legal representatives, assigns and successors in any interest of the parties. 13. The parties hereto agree that they will execute and deliver one to the other any documents necessary to give effect to the terms of this Agreement. 14. In the event that either party breaches any provision of this Agreement, he or she shall be responsible for any and all costs incurred to enfome the Agreement, including, but not limited to, court costs and counsel fees of the other part. In the event of broach, the other party shall have the fight, at his or her election, to sue for damages for such breach or to seek such other and additional remedies as may be available to him or her. 15. The parties agree that they shall not contact, disturb, harass, observe or otherwise attempt to influence the other, and all contacts, if any, that must be made between them shall be made through their respective Attorneys. 16. Ecker has been represented by Judith A. Calkin, Esquire, and Glass has been represented by Roger M. Morgenthal, Esquire. The parties acknowledge that they have read this Agreement prior to signing it, had full opportunity to discuss it with their counsel, and understand it and all its terms. IN WITNESS WHEREOF, the parties have executed this Agreement on the date first above written. WITNESSES: Roger M. Morgenthal, Esquire Patricia A. Glass Judith A. Calkin, Esquire Thomas A. Ecker P.:\roger\Family Law\Patti Glass Case\Sett Agreement.doc COMMONWEALTH OF PENNSYLVANIA : : SS. COUNTY OF CUMBERLAND : On this, the day of September 2001, before me, a notary public, the undersigned officer, personally appeared PATRICIA A. GLASS, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that she executed the same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. Notary Public COMMONWEALTH OF PENNSYLVANIA : : SS. COUNTY OF DAUPHIN : On this, the day of September 2001, before me, a notary public, the undersigned officer, personally appeared THOMAS A. ECKER, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he executed the same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. Notary Public 4 Steven J. Fishman Roger M. Morgenthal September 4, 2001 FISHMAN & MORGENTHAL Law Offices 95 Alexander Spring Road, Suite 3 Carlisle, Pennsylvania 17013-9137 E-MAIL: roger~carlislelaw.com (717) 249-6333 FAX (717) 249-7334 Judith A. Calkin, Esquire 2201 North Second Street Harrisburg, PA 171 I0 RE: Glass v. Ecker Dear Judy: I am going to send this by fax only. Here is the proposed agreement in draft form. I believe it covers everything that remains at issue. I have the $2,000.00, and as soon as the deed (to be faxed tomorrow) and this agreement are signed, I can release it to you. Please review the agreement, and if it appears satisfactory, let me know and I can drop several original by at your office, along with the deed, so that you client can sign it. Settlement is set for next Monday September 10 at 1PM in my office, so time is rather of the essence ! Thanks for your cooperation. Copy by e-mail: Patti Glass Very truly yours, Ro~enthal, Esquire Parcel No.38-23-0571-039 THIS DEED made this7'/~ day of September, 2001, BETWEEN THOMAS A. ECKER, single individual and PATRICIA A. GLASS, single individual, of Cumberland County, Pennsylvania, hereinafter called "GRANTORS", AND PATRICIA A. GLASS, single woman, of Cumberland County, Pennsylvania, hereinai~er called "GRANTEE": WITNESSETH: That in consideration of ONE AND 00/100 ($1.00) Dollar, in hand paid, the receipt whereof is hereby acknowledged, the Grantors do hereby grant and convey to the said Grantee, her heirs and assigns; ALL that certain tract or parcel of land and premises, situate, lying and being in the Township of Silver Spring in the County of Cumberland and Commonwealth of Pennsylvania, more particularly described as follows: BEING Lot No. 11 on a certain map entitled "Plan of Kingsbury Manor" dated October 26, 1974 Scale 1" - 50' Silver Spring Township, Cumberland County, Pennsylvania per survey of Ernest J. Walker, P.E., R.D. 4, Mechanicsburg, Pennsylvania, sheet I of 2 which map is filed in Plan Book 32, Page 68, in the Office of the Recorder of Deeds for Cumberland County and being more particularly bounded and described as follows: BEGINNING at a point on the westerly side of Bare Road (T-580) at the southeast comer of Lot No. 12 as shown on the above-referenced map; thence South 16 degrees 18 minutes 36 seconds East along the westerly side of Bare Road a distance of 110.00 feet to a point at the northeast comer of Lot No. 10 as shown on said map; thence South 73 degrees 41 minutes 24 seconds West along Lot No. 10 a distance of 215.71 feet to a point at Lot No. 9; thence North 23 degrees 15 minutes 51 seconds West along Lots No. 9 and 13 a distance of 110.81 feet to a point at Lot No. 12; thence North 73 degrees 41 minutes 24 seconds East along Lot No. 12 a distance of 229.12 feet to a point on the western side of Bare Road, being the point and place of BEGINNING. BEING all of Lot No. 11 as shown on the above-referenced map. SUBJECT to a Recorded Protective Covenants for Kingsbury Manor recorded in Miscellaneous Book 236, Page 318, in the Office of the Recorder of Deeds for Cumberland County. HAVING THEREON erected a brick and aluminum dwelling house. UNDER AND SUBJECT, nevertheless, to all conditions, restrictions, easements and rights of way of prior record. BEING the same premises which ,Ion V. Fortunato and Janet L. Fortunato, husband and wife, by their Deed dated July 30, 1998 and recorded July 31, 1998, in the Office of the Recorder of Deeds in and for Cumberland County, in Deed Book 182, Page 578, granted and conveyed unto Thomas A. Ecker and Patricia A. Glass, as joint tenants with the right of survivorship, Grantors herein. IT IS THE INTENTION of the parties to this Deed to vest full and complete title in the property described above in the sole name of the Grantee, Patricia A. Glass. AND the Grantors hereby covenant and agree that they will warrant specially the property hereby conveyed. IN WITNESS WHEREOF, said Grantors have hereunto set their hands and seals the day and year first above written. Signed, Sealed and Delivered In the Presence of THOMAS A. ECKER PATRICIA A. GLASS COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND ) :SS. ) On this, the __ day of September, 2001, before me, the undersigned officer, personally appeared Tlq'OMAS A. ECKER, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he executed same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. Notary Public COIVIMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND ) :SS. ) On this, the r~44~ day of September, 2001, before me, the undersigned officer, personally appeared PATRICIA A. GLASS, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that she executed same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. Notary Public (J I do hereby certify that the precise residence and complete post office address of the within named Grantee is: 21 Bare Road, Mechanicsburg, PA 17055 Date: Attorney for Grantee COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND RECORDED on this day of the Recorder's Office of the said County, in Deed Book Page ,2001, in Recorder JUDITH A. CALKIN ATTORNEY-AT-LAW 2201 NORTH SECOND STREET HARRISBURG, PENNSYLVANIA 17110 September 19, 2001 (717) 238-2312 FAX (717) 233-2342 Roger Morgenthal, Esquire 95 Alexander Spring Road Suite 3 Carlisle, PA 17013 P~: Olass v. Ecker Dear Roger: Enclosed please find the check for $2000.00. Since I have heard from Tom Ecker I could only assume the deal is off. If I hear from him, I will let you know. Best personal regards. JAC/er cc: Tom Ecker not IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. GLASS :: Plaintiff :: VS. ~: THOMAS A. ECKER, :: Defendant :: CIVIL ACTION--EQUITY NO. 01- ~'6 ~" EQUITY TERM PARTITION ACTION ORDER OF COURT AND NOW, the~[~zlay of October, 2001, a Rule is hereby granted upon Respondent, Thomas A. Ecker, to show cause, if any he may have, why the prayer of the foregoing Petition should not be granted. Rule returnable ~ ~'-days after service. By the Court~~ . PATRICIA A. GLASS, Plaintiff vs. THOMAS A. ECKER, Defendant AND Thomas A. follows: March, : NO. IN THE COURT OF COMMON PLEAS CUMBERLAND CO., PENNSYLVANIA 2001-0568 EQUITY TERM Ecker PETITION OF COUNSEL FOR LEAVE TO WITHDRAW APPEARANCE NOW, comes Judith A. Calkin, Esquire, counsel for in the above-captioned matters, and avers as 2001. 2. Petitioner has represented Thomas A. Ecker since A Complaint was filed on January 26, 2001, requesting the parties. May 4, partition of a parcel of real estate owned jointly by both An Answer was filed on behalf of Thomas A. To date, Thomas A. Ecker, o 2001. 4. fees, and he has counsel fees of $540.00. been sent to Thomas A. Ecker. A copy attached. 5. with Thomas interests. returned. Ecker on has not paid any counsel Monthly statements have of the most recent is Petitioner has beenunable to communicate effectively A. Ecker in order to effectively represent his Repeated phone messages to defendant have not been WHEREFORE, Petitioner requests that this Honorable Court grant Petitioner leave with withdraw her appearance on behalf of Thomas A. Ecker in the captioned matter. Respectfully submitted: J/~dith A. Calkin, Esquire ~Attorney for Defendant 2201 North Second Street Harrisburg, PA 17110 (717) 238-2312 JUDITH A. CALKIN ATTORNEY-AT-LAW 2201 NORTH SECOND STREET HARRISBURG, PENNSYLVANIA 17110 (717) 238-2312 FAX (717) 233-2342 September 13, 2001 Tom Ecker 219 W. Locust Mechanicsburg, Street PA 17055 $150.00 per hour 3/01/01 .5 hrs. 4/18/01 .4 hrs. 5/1/01 .5 hrs. 5/2/01 .4 hrs. (Calls from client) ..... $75.00 (Calls from client & letter to attorney) .......... 60.00 (Call attorney & conference) 75.00 (Prepare Answer & letter to attorney) ........... 60.00 Total 6/19/01 .4 hrs. 6/20/01 .4 hrs. Balance due 8/21/01 .3 hrs. 9/5/01 .2 hrs. 9/6/01 .2 hrs. Balance due ........ ' ....... $270.00 (Conference call to Judge) 60.00 (Call realtor, Letter to attorney) 60.00 ............... $390.00 (Calls to attorney) ...... 45.00 (Calls to attorney & client) 75.00 (Call to client) ......... 30.00 ............... $540.00 PLEASE START PAYING PAYMENTS ON THIS OVERDU~ BILL!Il!III! PATRICIA A. GLASS, : Plaintiff : VS. : THOMAS A. ECKER, : Defendant : IN THE COURT OF COMMON PLEAS CUMBERLAND CO., PENNSYLVANIA No. 2001-0568 EQUITY TERM OP~DER OF COURT AND NOW, this ~day of ~ , 2001, upon consideration of the attached Petition of Counsel for Leave to Withdraw, it is hereby ORDERED AND DECREED that said Petition is granted and that Petitioner Judith A. Calkin, Esquire shall be permitted to withdraw her appearance of record for Thomas A. Ecker in the above-captioned matter. ,~./~/ Date: J. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. GLASS :: Plaintiff :: VS. THOMAS A. ECKER, :: Defendant :: :: CIVIL ACTION--EQUITY NO. 2001-0568 EQUITY TERM PARTITION ACTION PATRICIA A. GLASS'S MOTION TO MAKE RULE TO SHOW CAUSE ABSOLUTE Patricia A. Glass, by her undersigned counsel, respectfully moves your Honorable Court to make absolute the Rule to Show Cause which was issued in the above-captioned matter on October 2,2001, and in support states the following: 1. Patricia A. Glass filed a Petition for a Rule to Show Cause on September 28,2001, asking that an agreement reached by the parties through counsel be enforced. A copy of said Petition without exhibits is attached hereto for reference and marked Appendix "A." 2. A copy of the said Petition was served on Respondent's attorney, Judith A. Calkin, Esquire, on September 28, 2001. 3. On October 2, 2001, this Court issued a Rule on Thomas A. Ecker to show cause why the prayer of said Petition should not be granted, returnable 15 days after service, with a copy of any answer filed to be forwarded by the Prothonotary to chambers. A copy of said Rule is attached hereto as Appendix "B." \\MA[NSERVER\PUBLIC\roger\Family Law\Patti Glass Case\Glass v, Ecker\Petition for Absolute.doc Pursuant to local rule and practice, the Prothonotary, having been provided with stamped, addressed envelopes by Petitioner's counsel, mailed certified copies of the Rule to the attorneys for both parties on October 3, 2001. Petitioner believes and therefore avers that Judith A. Calkin promptly forwarded a copy of the Rule to her client, Thomas A. Ecker. Judith A. Calkin, Esquire, was permitted to withdraw from the case as attorney for Respondent on October 8, 2001, but that was after service of the Rule had been made. Thomas A. Ecker, the Respondent, has failed to answer Petitioner Patricia A. Glass's petition to date; and no attorney has appeared in the case on his behalf or contacted Petitioner's attorney to request an extension of time to answer. Petitioner Patricia A. Glass requests that the Court make the Rule to Show Cause absolute and to gram the relief requested in the Petition, and further, that the Court set a hearing and direct the Respondent's attendance to that the following may be accomplished: A. Execution by Respondent of the deed conveying his interest in real property known as 21 Bare Road, Mechanicsburg, PA 17055, to Petitioner's sole name. 2 \\MAINSERVER\PUBLIC\roger\Family Law,Patti Glass Case\Glass v. Ecker\Petition for Absolute.doc B. Determination of the costs and damages incurred by Petitioner as a result of Respondent's breach of the negotiated agreement, and the issuance of an Order compelling payment of the same. C. The issuance of an Order compelling such other relief as the Court may deem necessary and appropriate to carry out the agreement of the parties. WHEREFORE, Petitioner prays that your Honorable Court make the Rule to Show Cause absolute and to set a hearing at which Respondent's attendance shall be required to facilitate the execution of a deed for the subject premises and to determine damages and other relief that may be due to Petitioner. Date: November 7, 2001 Respectfully submitted, Roger M Morgenthal, Esquire, ID# 17143 SALZMANN, DePAULIS, FISHMAN & MORGENTHAL, P.C. 95 Alexander Spring Road, Suite 3 Carlisle, PA 17013 (717) 249-6333 Attorney for Petitioner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. GLASS :: Plaintiff :: VS. :: THOMAS A. ECKER, :: Defendant :: :: CIVIL ACTION--EQUITY NO. 01-00568 EQUITY TERM PARTITION ACTION CERTIFICATE OF SERVICE I, Roger M. Morgenthal, Esquire, hereby certify that I have served a true and correct copy of the foregoing MOTION TO MAKE RULE TO SHOW CAUSE ABSOLUTE upon the Defendant, who is not represented by counsel, by United States Mail, First Class, Postage Prepaid, on November 7, 200 l, at the following address: Date: November 7, 2001 Thomas A. Ecker 219 West Locust Street Mechanicsburg, PA 17055 Roger M. Morgenthal, Esquire ID# 17143 SALZMANN, DePAULIS, FISHMAN & MORGENTHAL, P.C. 95 Alexander Spring Road, Suite 3 Carlisle, PA 17013 (717) 249-6333 Attorney for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. GLASS :: Plaintiff :: VS. ~ THOMAS A. ECKER, :: Defendant :: CIVIL ACTION--EQUITY NO. 2001-0568 EQUITY TERM PARTITION ACTION PETITION FOR RULE TO SHOW CAUSE And now comes Petitioner, Patricia A. Glass, and states the following application for relief: 1. Petitioner is Patricia A. Glass, Plaintiff in the above captioned matter, of 21 Bare Road, Mechanicsburg, Cumberland County, Pennsylvania. 2. Respondent is Thomas A. Ecker, Defendant in said matter, who resides at 219 West Locust Street, Mechanicsburg, Cumberland County, Pennsylvania. 3. Since the filing of the above captioned Partition action, the parties have engaged in negotiations carried out between their respective attorneys, Roger M. Morgenthal, Esquire on behalf of Petitioner and Judith A. Calkin, Esquire, on behalf of Respondent. 4. By an Order of Court dated August 6, 2001, a copy of which is attached hereto as Exhibit "A," Hon. Judge Guido scheduled a conference in the Partition case for August 22, 2001, at 8:30 a.m. 19t,?e,, ot[ A p:\roger\Fnmil) Law\Para Glass Case\Glass x. Ecker\Petdion Ibr rule.doc 10. The attorneys for both parties continued to negotiate in an effort to settle the case prior to the scheduled conference, and on Tuesday August 21, 2001, Attorney Calkin called Attorney Morgenthal to present an offer from Mr. Ecker. Said offer included the payment of the sum of $2,000.00 cash by Petitioner to Respondent in consideration for Respondent conveying to her his interest in the subject premises; and there were other waivers and accommodations on behalf of both parties included in the proposal. After discussing the proposal with his client, Attorney Morgenthal received authorization to accept the proposal from Respondent. Immediately, Attorney Morgenthal wrote and faxed a letter of acceptance to Attorney Calkin, attached hereto as Exhibit "B," and he also called Judge Guido's secretary to cancel the conference referred to above. In accordance with an understanding between the attorneys, Attorney Morgenthal prepared several documents including a settlement agreement, attached hereto as Exhibit "C," and a deed conveying Respondent's interest in 21 Bare Road to Petitioner, attached hereto as Exhibit "D." Following a review of the documents by Attorney Calkin, who requested several small changes, the documents were put into final form and delivered to Attorney Calkin's office in Harrisburg on August 31,2001, so that her client could sign them. A check in the amount of $2.000.00 was 2 P:\roger,Famib Laxx\Patti Glass Case\Glass ~ Ecker\Petition for rule.doc 11. 12. 13. 14. 15. also delivered to Attorney Calkin for release to her client when he had executed the documents. Petitioner had applied for and received a mortgage commitment from Gateway Funding Diversified Mortgage Services of Mechanicsburg, for which she incurred substantial costs for application fee, credit report charge and other items. The purpose of the mortgage was to refinance the mortgage on the subject property, so that Respondent could be relieved on liability on an existing mortgage owed jointly by the parties. At all times, it was stressed to Attorney Calkin that the Petitioner's mortgage commitment would expire on September 17, 2001, and that it was essential that Respondent sign the documents promptly to enable time for the mortgage closing to occur before the deadline. Petitioner believes and therefore avers that Attorney Calkin acted diligently to advise her client of his responsibilities in the matter and that it was essential that the documents be signed. Despite the best efforts of his attorney, Respondent refused to communicate with Attorney Calkin, to sign the documents or to otherwise act in accordance with the negotiated settlement. Attorney Calkin returned the deposit check to Attorney Morgenthal on September 19, 2001, with a letter attached hereto as Exhibit "E." Respondent never expressed any disagreement with the terms of the agreement as negotiated, nor did he indicate that he would not sign; in P:\roger\Famii.x Law\Patti Glass Case',Glass v. Ecker\Petition Ibr rule.doc 16. 17. 18. 19. fact, it is believed that he repeatedly told his attorney that he would be in to sign them. Respondent failed to comply with his obligation to sign the documents prior to September 17, 2001, and the mortgage commitment obtained by Petitioner has expired. While said commitment could be renewed by Petitioner, there will be additional fees required for reapplication. The agreement entered into by Attorney Calkin had been approved by Respondent, and the correspondence and the documents prepared by the attorneys contain uncontroverted evidence as to the material terms of their agreement. Petitioner believes and therefore avers that the case of Rocker v. Bie Sprinz School District, 699 A.2d 1331 (1997) controls the issues of this matter. Petitioner has been damaged financially in the following ways by the failure of Respondent to comply with the settlement agreement: A. She has lost substantial application and related fees in obtaining the mortgage, which expired due to Respondent's actions. B. She has incurred substantial attorney's fees, and will continue to incur the same, in preparation of the settlement documents and in attempting to obtain Respondent's compliance with the settlement. C. She will incur new fees to obtain a new mortgage commitment. P:\roger\Famil.x Law\Patti Glass Case\Glass v. Ecker\Petition tbr rule.doc D. She may be required to pay a higher rate of interest on any new mortgage compared to the one that was not closed by September 17, 2001. 20. To the best of Petitioner's -knowledge, Respondent has continued to ignore his attorney's communications, and his intentions in the matter are unknown. WHEREFORE, Petitioner prays your Honorable Court to grant a Rule to Respondent to Show Cause, if any he may have, why he should not be required to comply with the terms of the negotiated agreement; why he should not be charged with repayment of the costs and expenses incurred by Petitioner as a result of his breach of the negotiated agreement; and why Petitioner should not be afforded such other relief as the Court may deem necessary and appropriate. Respectfully submitted, Roger M. Morgenthal, Esquire, ID# 17143 SALZMANN, DePAULIS, FISHMAN & MORGENTHAL, P.C. 95 Alexander Spring Road, Suite 3 Carlisle, PA 17013 (717) 249-6333 Attorney for Petitioner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. GLASS Plaintiff VS. THOMAS A. ECKER, TEPdVl Defendant CIVIL ACTION--EQUITY NO. 01- 568 EQUITY PARTITION ACTION VERIFICATION I, PATRICIA A. GLASS, verify that the facts averred in the foregoing Petition for Rule to Show Cause are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unswom falsification to authorities. Date: September 27, 2001 Patricia A. Glass IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. GLASS :: Plaintiff :: :: VS. :: :: THOMAS A. ECKER, :: Defendant :: :: CIVIL ACTION--EQUITY NO. 01-00568 EQUITYTERM PARTITION ACTION CERTIFICATE OF SERVICE I, Roger M. Morgenthal, Esquire, hereby certify that I have served a true and correct copy of the foregoing PETITION FOR RULE TO SHOW CAUSE upon the Defendant's attorney, by United States Mail, First Class, Postage Prepaid, on September 28, 2001, at the following address: Judith A. Calkin, Esquire 2201 North Second Street Harrisburg, PA 17110 Roger M. Morgenthal, Esquire ID#17143 SALZMANN, DePAULIS, FISHMAN & MORGENTHAL, P.C. 95 Alexander Spring Road, Suite 3 Carlisle, PA 17013 (717) 249-6333 Attorney for Plaintiff Date: September 28.2001 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRIC1A A. GLASS :: Plaintiff :: VS. THOMAS A. ECKER, :: Defendant :: CIVIL ACTION--EQUITY NO. 01- ~'~ ~ EQUITY TERAM PARTITION ACTION ORDER OFCOURT AND NOW, theg~.n~ day of October, 2001, a Rule is hereby granted upon Respondent. Thomas A. Ecker, to show cause, if any he may have, wh.~ the prayer of the By the Court: TRUi~ COP'( ~ '~ t' ~',U'M RECORD lll T,~,?m.~ny whetter, J here unto set my hand and ~ seal of sa~Co~rt a~Cadisie, Pa. ..... IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA A. GLASS :: Plaintiff :: VS. ~ THOMAS A. ECKER, :: Defendant :: CIVIL ACTION--EQUITY NO. 0l- 0~ EQUITY TERM PARTITION ACTION ORDER OF COURT AND NOW, the~ q~/~ day of November, 2001, upon consideration of Patricia A. Glass's Motion, it is hereby ORDERED that the Rule that was issued on Thomas A. Ecker, Respondent, in the above-captioned matter on October 2, 2001, is made absolute. A hearing shall be held on ¥ )~e.~ , the ~C6~day of ~ ,200~,at Ii30 o'clock, /9.M, in Court Room No. ~-, Cumberland County Courthouse, Carlisle, Pennsylvania, for the execution by Respondent of the deed conveying his interest in real property known as 21 Bare Road, Mechanicsburg, PA 17055, to Petitioner; and to consider Petitioner's other requests for damages and relief. The Respondent, Thomas A. Ecker, shall attend said hearing. \