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HomeMy WebLinkAbout07-30-10IN RE: ESTATE OF WILLIAM R. KENNEDY, DECEASED late of South Middleton Township, Cumberland County, PA IN THE COURT OF COMMON PLEA OF CUMBERLAND COUNTY~~iS Y~~AA ORPHANS' COURT DIVISf+6~ - ~ ' '::' r- - --~ c a _ . - ~_; ; w ~ "~ ~, ~ 21-2010-67 ° ' ~':' %`~ N0 :' . _ ;.~ -~, _ DECLARATORY JUDGMEN~ "' ; :; - _ , ca ~ `rl r PETITION FOR DECLARATORY JUDGMENT AND NOW, comes Petitioner WAYNE F. SHADE, ESQUIRE, Executor of the Last Will and Testament and Estate of William R. Kennedy, Deceased, and requests that your Honorable Court determine the rights in respect to the above Estate pursuant to the provisions of 42 Pa.C.S. § 7535(2) and (3), and in support thereof avers, as follows: 1. Petitioner WAYNE F. SHADE is an adult individual with offices at 53 West Pomfret Street, Carlisle, Cumberland County, Pennsylvania 17013. 2. Respondent DENISE M. THOMAS KENNEDY (hereinafter "Wife" or "Widow") is an adult individual who resides at 351 York Road, Carlisle, Cumberland County, Pennsylvania 17013. 3. Petitioner brings this action in his capacity as Executor of the Estate of William R. WAYNE F. sl-IADE Kennedy, Deceased (hereinafter "Husband" or "Decedent"). Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 4. Husband and Wife were married on October 9, 1998. 5. The marriage was the third for Husband and the second for Wife. 6. Husband was born on November 10, 1934. 7. Wife was born on May 27, 1956. 8. Husband died on December 20, 2009. 9. Letters Testamentary in the Estate of William R. Kennedy were granted to Petitioner by the Register of Wills of Cumberland County, Pennsylvania, on March 8, 2010. COUNTI Widow's Forfeiture 10. The averments of ¶¶ 1 through 4 inclusive and 9 are incorporated herein by reference as though fully set forth. WAYNE F. SHADF Attorney at Law 53 West Pomfret Stree Carlisle, Pennsylvania 17013 -2- 11. On May 21, 2007, Wife filed a complaint in divorce. 12. The complaint was docketed to No. 3072 of 2007 in this court. 13. In her complaint in divorce, Wife alleged that the parties had been separated from ~ marital cohabitation since on or about September 1, 2005. 14. In her response to Husband's interrogatory 1, Wife stated that the parties were separated since September 1, 2005, because that was when she began living in separate parts of the marital residence and because that was when they stopped communicating ', and no longer had any conversation. 15. In her complaint in divorce, Wife did not allege any marital fault on the part of J Husband. 16. After Wife filed her complaint in divorce, Husband told Wife that he did not want a divorce. WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 -3- 17. After the separation of the parties, Wife engaged in extra-marital sexual relations with various men. 18. After the separation of the parties, Wife engaged in extra-marital sexual relations with various men within her separate portion of the marital residence when she knew that Husband was in the other portion of the marital residence and that he could hear her sexual activities as they occurred. 19. After the separation of the parties, Wife did not offer to return to marital cohabitation. 20. After the separation of the parties, Wife never intended to continue the marriage. 21. Decedent died on December 20, 2009. 22. In his Last Will and Testament, Decedent gave everything to his daughter. WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 -4- 23. On March 3, 2010, the Widow filed an election to take against the Will of Decedent. 24. Wife's willful and malicious desertion of Husband and her engaging in extra- marital sexual relations with various men thereafter were wholly inconsistent with the marital relationship and constituted a forfeiture of the statutory right of the Widow to elect to take a share of the estate of Decedent against the Will of Decedent. WHEREFORE, Petitioner respectfully requests a declaratory judgment, under the provisions of 20 Pa.C.S. §§ 2208 and 2106, that the Widow has forfeited her statutory right to elect to take a share of the estate of Decedent against the Will of Decedent and awarding such other relief as may be equitable and just. COUNT II Widow's Disclaimer 25. The averments of ¶¶ 1 through 4 inclusive and 9 are incorporated herein by reference as though fully set forth. WAYNE F. SHADI Attorney at Law 53 West Pomfret Stre~ Cazlisle, Pennsylvania 17013 -5- 26. At the date of death of Husband, Wife had not established grounds for divorce from Husband. 27. At the date of death of Husband, Husband and Wife owned the real estate premises known and numbered as 351 York Road, Carlisle, Cumberland County, Pennsylvania (hereinafter " 3 51 York Road"), as tenants by the entirety. 28. At the date of death of Husband, he was residing at 351 York Road. 29. At the date of death of Husband, Wife was not residing at 351 York Road. 30. If your Honorable Court were to find that the Widow has not forfeited her right to take a share of the estate of Decedent against the Will of Decedent, it is averred in the alternative that the Widow has disclaimed her interest in the real estate and in any other property that was owned by Husband and Wife as tenants by the entirety, if any. WHEREFORE, Petitioner respectfully requests a declaratory judgment, under the provisions of 20 Pa.C.S. § 2204(a)(8}, that the Widow has disclaimed her interest in the WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania 1'7013 -6- real estate and in any other property that was owned by Husband and Wife as tenants by the entirety, if any, and awarding such other relief as may be equitable and just. COUNT III Property Division 31. The averments of ¶¶ 1 through 4 inclusive, 9 through 11 inclusive, 26, and 28 and 29 are incorporated herein by reference as though fully set forth. 32. In June of 1998, prior to the marriage, Husband and Wife moved to a house at 371 York Road, Carlisle, Cumberland County, Pennsylvania (hereinafter "371 York Road") 33. Husband provided the initial down payment of $1,000 and the additional down payment at closing in the amount of $5,049.45 from his pre-marital funds. 34. Wife did not provide any of the funds for the acquisition of the property at 371 York Road. 35. On January 8, 2008, the property at 371 York Road was transferred to Wife's sister WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 and brother-in-law. -7- 36. The net proceeds of sale of the property at 371 York Road were in excess of $34,000. 37. The net proceeds of sale of the property at 371 York Road were held in escrow by counsel for Wife until November 26, 2008. 38. Through negotiations involving the respective attorneys of Husband and Wife, Husband and Wife agreed to divide the net proceeds of sale of the property at 371 York Road. 39. The net proceeds of sale of the property at 371 York Road were divided between the parties on November 26, 2008. 40. The net proceeds of sale of the property at 371 York Road were divided equally between the parties. 41. Husband was represented in the divorce proceedings by Petitioner herein. WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 -8- 42. In March of 2009, Wife herein was represented in the divorce proceedings by Michelle L. Sommer, Esquire, Abom & Kutulakis, 2 West High Street, Carlisle, Pennsylvania 17013. 43. On March 25, 2009, counsel for Wife transmitted by facsimile to counsel for Husband a proposed division of the untitled tangible personal property of Husband and Wife. 44. The next day, Wife came to the property at 351 York Road where Husband was residing. 45. After discussions between Husband and Wife the parties agreed to divide their untitled tangible personal property. 46. After the parties agreed to the division of their untitled tangible personal property WAYNE F. Si-iaDl Attorney at Law 53 West Pomfret StreE Cazlisle, Pennsylvania 17013 Wife removed several truck loads of tangible personal property from the premises at 351 York Road on March 26, 2009. -9- 47. After Wife removed from the premises at 351 York Road, the untitled tangible personal property that it was agreed would belong to her, Husband and Wife annotated, signed, and dated the proposed division of tangible personal property that counsel for Wife had transmitted by facsimile to counsel for Husband the previous day. A copy thereof is attached hereto as Exhibit "A" and incorporated herein by reference as though fully set forth. 48. Although the divorce proceedings abated upon the death of Husband, Petitioner avers that the items of untitled tangible personal property that were retained by Husband under the March 26, 2009, agreement between Husband and Wife lost their status as marital property and became Husband's individual property and, ultimately, assets of the estate of Decedent. 49. Upon the death of Husband, Petitioner repeatedly requested, of then counsel for WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 the Widow, an opportunity to enter upon the premises of the former marital residence to take possession of and remove the estate assets, but the Widow refused, through her then counsel, to permit Petitioner to do so under threat, by her then counsel, of criminal prosecution. -10- WHEREFORE, Petitioner respectfully requests a declaratory judgment that the items of untitled personal property that were retained by Husband under the March 26, 2009, agreement between Husband and Wife became the individual property of Husband under the provisions of 23 Pa.C.S. § 3501(a)(2) and awarding such other relief as may be equitable and just. ~ ~~~c. Wayne .Shade I verify that the statements made in the foregoing Petition are true and correct. understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Date: July 30, 2010 Wayne .Shade WAYNE F. SHADI Attorney at Law 53 West Pomfret Stree Cazlisle, Pennsylvania 17013 -11- l/isf of Items thaf Denise would like from fhe Storatre Unit on Warner's Gan Road y r 1. Disney Figurines (these are pre-marital) !~ 2. School Desk/Chair {this. is one piece) 3. 2 Ice-Cream Tables (gray) and 4 Chairs {these axe pre-r.,narital and belong to Denise's Mother) 4. 1940's Baby Stroller (blue and yellow) 5. Miscellaneous Kitchen Items (in boxes) 6. I O-Speed Giz~l's Bide 7. pictures of the Girls and Denise List of Items that Denise would Iike fwom 1hlarital >~Iome ~ 1. 2. Bedr CR ~yc 5 ~.~ ~- V~~ ~-'~ rv~:sf~ b eJ~ r-~~,'v) 3. Dresser ~--~ -~om s ~an-e r~>c~ rv~ ~ 13 ,uS 4. Muror ~ -~-rc~n ~ ~,,a.r~. rcx17~'- ~ ~ ~ , c_c_~ S ~ . S. Tam- 6. west 7. ~ ~~ ~ 8. Sofa Table {' ~:>>a,~f.- /}tr~~F~ d„1. Tr4~3!~ ~" 9 Lataps t'~-,~•~..~ +-~.~~~ F'i~,~ ~-~)(C~~(-P 1-cc.v+~ ~ 10. pictutes ' F~»Z. ~xts~ , P ~ e ~R~ i ~ R~a~t~y ~~/o~- a: •2~~ . ~. 11. Big Screen TV C g~"K ~'J6 ~'~ ~ ~ Co'~-^'~2 Tv ~ ~8r ~u~-; ~ (BrvNG:~~ ~AZ+G T3PS41 _ 4 13.Idutc~ 14. Table & 6 Chairs (that match the Hutch) 16.3-Shelf Bookcase *~ 17.lVly School Desk ~ ,4~jS C~a-[~'e~ ~~?~-- ~ ~ 9 ~ fJ:E'ER C~ i ect,'Y~-~ hi.~.~_ ~vu~c,r~j ;Q,rr, +~~~= d 3 . ~~ ~ ~o , ~c~ T ~~..ti.~. CIS ~~ ~ ~~~v.~.~~t+~n-~,~ fc~ ~~ ~-~ 1 a.~ reed C-~-~ ;~' ~~ ~ - ~~ r s ~ ~~~T . ~~.~ j~co ~-(' ~% s31~z ~~o , ~ ~ `~ ~ ;~ EXHIBIT "A"