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HomeMy WebLinkAbout01-1287 MARY A. BRETZ, Plaintiff :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYL VANIA V. :DOCKET NO. 0 1- 1..:2 r 7 ~r.v-- KENNETH L. BRETZ, SR. and GAIL ILENE BRETZ, Defendants :CIVIL ACTION - EQUITY 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, Pennsylvania 17013 (717) 249-3166 MARY A. BRETZ, Plaintiff :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYL VANIA V. :DOCKETNO. D/- /."l;J ~ T;....... KENNETH 1. BRETZ, SR. and GAIL ILENE BRETZ, Defendants :CIVIL ACTION - EQUITY COMPLAINT AND NOW comes the Plaintiff, Mary A. Bretz, by and through her attorneys, KOLLAS AND KENNEDY, and avers the following in support of this complaint: BACKGROUND I. Plaintiff, Mary A. Bretz, is an adult individual currently residing with her grand daughter, Michelle 1. King, at 34 Sherwood Circle, Enola, Cumberland County, Pennsylvania. 2. Plaintiff, Mary A. Bretz, is seventy-four years old, her birthday being July 14, 1926. 3. Defendant, Kenneth 1. Bretz, Sr., is an adult individual residing at 26 Riverview Drive, Enola, Cumberland County, Pennsylvania, and is the husband of Gail Ilene Bretz. 4. Defendant, Gail Ilene Bretz, is an adult individual residing at 26 Riverview Drive, Enola, Cumberland County, Pennsylvania, and is the wife of Kenneth 1. Bretz, Sr. 5. Plaintiff, Mary A. Bretz, is the mother of defendant, Kenneth 1. Bretz, Sr. and is the mother-in-law of defendant Gail Ilene Bretz. 6. On August 20, 1998, Mary A. Bretz signed a Durable Power of Attorney, a true and accurate copy of which is attached hereto as Exhibit "A." 7. Defendant Kenneth L. Bretz, Sr. is named as an "Attorney-in-Fact" in the aforementioned Durable Power of Attorney. TRANSACTION IN QUESTION 8. On or about June 9, 2000, the defendants took Mary A. Bretz to their attorney's office, where, in the presence of and at the urging of the defendants and their attorney, Mary A. Bretz gave or transferred her real property at 40 Creekside Drive, Enola, Cumberland County, Pennsylvania to the defendants by a deed, a true and accurate copy of which is attached hereto as Exhibit "B." 9. The deed purports to convey to defendants all that certain tract lot or tract ofland known as 40 Creekside Drive, Enola, Pennsylvania for the nominaI consideration of "One ($1.00) Dollar, Natura110ve and affection" and no other consideration. 10. At the time of the transfer, Mary A. Bretz was seventy-three years old, weak in body and mind, easily influenced, and not possessed of sufficient mental capacity to comprehend the true meaning of the deed or the effects of her acts. 11. At the time of the transfer, Mary A. Bretz was taking anti-depressant medication which adversely affected her reasoning and comprehension such that she was not possessed of sufficient mental capacity to comprehend the true meaning of the deed or the effects of her acts. 2 12. At or near the time of the transfer, a confidential relationship existed between Mary A. Bretz, and Kenneth 1. Bretz, Sr., who was both son and attorney-in-fact to Mary A. Bretz. 13. At or near the time of the transfer, a confidential relationship existed between Mary A. Bretz, and Gail Ilene Bretz, who was her daughter-in-law. 14. At or near the time of the transfer, Kenneth 1. Bretz, Sr. occupied a superior and ovennastering position over Mary A. Bretz, intellectually and physically, and had the opportunity to use, and did use, that superiority to the disadvantage of Mary A. Bretz. 15. At or near the time ofthe transfer, Gail Ilene Bretz occupied a superior and ovennastering position over Mary A. Bretz, intellectually and physically, and had the opportunity to use, and did use, that superiority to the disadvantage of Mary A. Bretz. 16. Defendants induced Mary A. Bretz to execute the deed through fraud, duress, coercion, and undue influence. 17. The acts committed by Kenneth 1. Bretz, Sr. which constitute fraud, duress, coercion, and undue influence include, but are not limited to, excessive importunity, verbal abuse, intimidation, and threats, all of which were directed towards or against Mary A. Bretz. 18. The acts committed by Gail Ilene Bretz which constitute fraud, duress, coercion, and undue influence include, but are not limited to, excessive importunity, verbal abuse, intimidation, and threats, all of which were directed towards or against Mary A. Bretz. 3 19. The aforesaid acts were committed by the defendants at or near the time of the execution of the deed and for a period prior thereto. 20. The aforesaid acts were committed by the defendants with the sole purpose and design of constraining Mary A. Bretz to execute the deed and to give her house over to the defendants, which Mary A. Bretz otherwise would not have done. 21. Despite the repeated demands of Mary A. Bretz for the return of the real property at 40 Creekside Drive, Enola, Cumberland County, Pennsylvania, defendants have refused to return the property. WHEREFORE, plaintiff, Mary A. Bretz, prays that: (A) the deed from Mary A. Bretz to Kenneth L. Bretz and Gail Ilene Bretz, husband and wife, dated June 9, 2000, be declared null and void, and that the defendants be ordered to reconvey all the estate and premises described in the deed to plaintiff in fee; (B) pending this action, defendants be preJiminarily and thereafter pennanently restrained from disposing of any of the real estate described in the deed or conveying or in any way encumbering the same; (C) such other and further relief as may be deemed necessary and proper. 4 RESPECTFULLY SUBMITTED: t~ William C. Kollas, Esquire Supreme Court LD. No. 06341 Lw.~,~ Supreme Court LD. No. 81959 KaLLAS AND KENNEDY 1104 Femwood Avenue Suite 104 Camp Hill, PA 17011 (717) 731-1600 ATTORNEY FOR PLAINTIFF Dated: J /;;-/01 5 VERIFICATION I, Mary A. Bretz, the plaintiff herein, verifY that the statements made in the foregoing Complaint are true 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 unsworn falsification to authorities. DATE ?:::,-,- 0\ BY )tJ ~ a.l&u1"- Mary Ai3retz v - - ~ DURABLE POWER OF ATTORNEY for MARY A. BRETZ I, MARY A. BRETZ of East Pennsboro Township, Cumberland County, Pennsylvania, being of sound and disposing mind, memory and understanding, do hereby create this DURABLE POWER OF ATTORNEY, pursuant to Pennsylvania Consolidated Statutes 20. Section 5601. I hereby empower my son, Kenneth L. Bretz Sr, or my grand daughter, Michelle L. King, as my Attorney-in- Fact to: 1. MAKE GIFTS 2. CREATE A TRUST FOR MY BENEFIT 3. MAKE ADDITIONS TO AN EXISTING TRUST FOR MY BENEFIT 4. CLAIM AN ELECTIVE SHARE OF THE ESTATE OF MY DECEASED SPOUSE 5. DISCLAIM ANY INTEREST IN PROPERTY 6. RENOUNCE FIDUCIARY POSITIONS 7. WITHDRAW AND RECEIVE THE INCOME OR CORPUS OF A TRUST 8. AUTHORIZE MY ADMISSION TO A MEDICAL, NURSING. RESIDENTIAL OR SIMILAR FACILITY AND TO ENTER INTO AGREEMENTS FOR MY CARE 9. AUTHORIZE MEDICAL AND SURGICAL PROCEDURES 10.ENGAGE IN REAL PROPERTY TRANSACTIONS 11.ENGAGE IN TANGIBLE PERSONAL PROPERTY TRANSACTIONS 12 ENGAGE IN STOCK. BOND AND OTHER SECURITIES TRANSACTIONS 13.ENGAGE IN COMMODITY AND OPTION TRANSACTIONS 14.ENGAGE IN BANKING AND FINANCIAL TRANSACTIONS 15.BORROW MONEY 16.ENTER SAFE DEPOSIT BOXES 17.ENGAGE IN INSURANCE TRANSACTIONS 18.ENGAGE IN RETIREMENT PLAN TRANSACTIONS 19.HANDLE INTERESTS IN ESTATES AND TRUSTS 20.PURSUE CLAIMS AND LITIGATION 21.RECEIVE GOVERNMENT BENEFITS 22 PURSUE TAX MATTERS ~ EXHIBIT !!l ~ II A" ~ IN WITNESS WHEREOF, t hereunto set my hand and seal to this my DURABL.E POWER OF A TTORN71', f~r, the reasons as stated above, on this, the &.0 day of vvrA/r'AA . 1998 jtl~fE~ WITNESS:x X./YI/;1Q..t!t 2f. ~JlYuI y~JfJX~ ~..*****..*.****~._.***.*.~*******.**..***...w*~....****.*..********.****.~.*****.******~..** COMMONWEALTH OF PENNSYLVANIA) ) SS.: COUNTY OF CUMBERLAND ) ON, this the ~ ~Of Av,,1w.J- . 1998. before me. a notary public, the undersigned officer, personallY-appeared MARY A, BRETZ, (known to me or satisfactorily proven) to be the person whose name is signed to the foregoing DURABLE POWER OF A rrORNEY, and acknOwledged that she executed the same for the reasons and purposes therein expressed. IN WITNESS WHEREOF~;; set;!(; and off~ial seal. ~PubIiC My Commission Expires: S"!Je!ON 10 uoQllOOS9V ",U""SUU'. 'JlQ""1'i QOOZ 'yZ .~N 5&J,dx.:l UOtlllWWOO .<~ .Ilunoo ptJI!~O<lW"O "dMl OJoqeu"'d 1083 O!lqnd NSION 'ueMQ '8 PllIUO{] lelOS "'~SION r'J.'P d! \ .<i. J ( "- (JO Special Wartanty Deed Tax Parcel 10 # Instrument # THIS DEED MADE THIS fr;;;y OFQ~N THE YEAR TWO THOUSAND (2000) BETWEEN: MARY ANN BRETZ. widow woman, of E..t Ptlnnsboro TOWMhlo. Pflnm~v'vllnlll. HEREINAFTER REFERRED TO AS "GRANTOR" AND KENNETH L. BREn AND GAIL ILENE BRETZ. husband and wile. 01 E8S1 Pennsboro TownahlD. Pennsvlvanla. HEREINAFTER REFERRED TO AS "GRANTEES" WfTNESSETH, THAT IN CONSIDERATION OF ONE ($1.00) DOLLAR, Nstural love and allectlon IN HAND PAID, THE RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED, THE GRANTOR DOES HEREBY CONVEY TO SAID GRANTEES, THEIR HEIRS AND ASSIGNS, ALl. THAT CERTAIN TRACT LOT OR TRACT OF LAND situate in East Pennsbora Township, Cumberland County, Pennsylvania, more particularly bounded and described as follows, to wit: BOUNDED on Ihe north by the public road known as Creekside Drive; on the east by land now or formerly of George Reichert; one the south by the Conodoguinet Creek and on the west by land now or late of John Eckert; also known as Lot NO.2 in the hereinafter referred to Plot Plan. HAVING THEREON ERECTED A TWO STORY FRAME DWELLING HOUSE known as 40 Creekside Drive. Enola. Pennsylvania 17025. BEING THE SAME PREMISES which Vance W. Bretz and Mary Ann Bretz as husband and wife, received by deed dated the 25th day of January 1950, from Vance W. Bretz and recorded in the Cumberland County Recorder of Deeds Office in Deed Book J, Vol. 14. Page 23 on the 30th day of January 1950, except for a tract of land known as Lot NO.1 on a subdivision plan of D,P. Raffensperger of June 27,1975 as will more fully appear in Plan Book _ Page _ as recorded in the Recorder of Deeds Office of Cumberland County, which was conveyed to Vance W. Bretz Jr. and Linda Lee Bretz by deed dated December 9, 1975 as will more lully appear in Deed Book K, Volume 26, Page 348. Vance W. Bretz died on the 21 st day of May, 1996, thereby vesting sole title in his wife, Mary Ann Bretz, the grantor herein. "'U' ~"3 'FE · 55 ...."" "", l.,~ ~ EXHIBIT !tI ~ II p.{' ~ ..........".................................................................................. COMMONWEALTH OF PENNSYLVANIA) ) 55.: COUNTY OF CUMBERLAND ) RECORDED ON THIS 4 DAY OF ?()~ A.D. 2000. IN THE RECORDER'S OFFICE OF SAID COUNTY IN DEED BOOK ;;{:)3' PAGE )<) GIVEN UNDER MY HAND AND THE SEAL OF J1}S}ID. OFFICE, THE DATE ABOVEWRllTEN. ~ RECORDER . .::.:- CJ ;,~ r: r . '- ,', (', .-'. ~-: --- i~ ~_: :...; :.~ ,'.' . co ~,.~B~.~~~:~~;.:.. .~.~~. i"of'!-.f;""t'yi :...tl.'~.~~."'. . ~'r'~\ #h;'''' ,,_.w . . '..,;,::''.1......" ~<:~...~~~9""'~. ,....,.;,i-:.. .:.,--/.. ztN'~; . '1':f.:-;a,F5~', .";:,; , :,_~1)'~~r:.~ ..., l4f.ff' l~,.~):t.~;..\!.,c).... \. ."i~1..;f).A\t.':\-.!.-~"..!ql~ ...."'..~;:/. ,., . .;'.. '~..~~/.;~-:::-(\~,~.i.: :. ..' ~"-'~-"~ "~1S:.;~~~.'i~:~e-,~.:;"....:.i3"j ,- . :~'...:. ~.-;-St~~~~- : ~'" .':" .>"':' .('..r:r:.,,.:.,rv-.~:-....tdi:.,,~("..r,.. I ..... ~.._~.,_'.~'.r:,,~?'-/ -v 0" '., ::::;) rJ"" .' ~:!UL 01 I v) " 600~ 223 PACE 57 THIS IS A CONVEYANCE FROM 'MOTHER TO SON AND WIFE AND IS THEREFORE EXEMPT FROM PENNSYLVANIA REALTY TRANSFER TAX. AND, the said GRANTOR hereby specially warrants the property conveyed. IN WITNESS WHEREOF, THE GRANTOR HAS HEREUNTO SET HER HAND AND SEAL, THE DAY AND YEAR FIRST ABOVE WRITTEN. SIGNED, SEALED AND DELIVERED IN THE PRES~E OF A O<i.M e!d'-6; Y1)0/r4 {h;m J1..1' (SEAL) MAR5V ANN BRE~LVC7 ........................................................................................... COMMONWEAL.TH OF PENNSYLVANIA) ) 55, COUNTY OF CUMBERLAND ) ON THIS, the 9~f c:;-~ A.D.,2000, before me, the undersigned officer, personally appeared MARY ANN BRETZ, widow woman, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged she executed the same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. ~~~~fP---- My Commission EOxpirllS; 1 Nolallal Seal Donald B, Owen. NolalY Public Easl Per'lnsboro Twp., Cumbellancl Countv My COI'mlIssIon E~r8S Nov_ 24, 2000 :. _ . -t'): Member, Pennsytvania AsSOCIation 01 Nolaries . 'y.. .C) : .". ";' -(..(o.~: I HEREBY CERTIFY, THAT THE PRECISE RESIDENCE OF THE GRANTEES;l.$D..:::I::~..<,':) 26 Riverview Drive Enola, PA 17025 tt (L- . 's (f\~., C'l. rt ' ..' ~ .," Attorney For; --Ie 9t ~ .....~(\J },-Yt-", ./ ,",,:~""','.:'':-. '" " f)... ~I<l,~,,.. '. ;: /l:':-"- :Ie '':~:\ BOOK 223 rAGE · 56 r"t '-lU '" ..., .c "" l-' c:'") '" ALL-STATE LEGAL, A DMSroN OF ALL-STAre-INTalNATlONAL. FORM NO.: 07152-BF-07153-BL'07155.GY'07156.WH 0 l> l: 'U ;:IIi; X - 0 F i5 ~ r .. ~ ~ 'U "'1 '" '" 0 Ul ::! z ;U ;U Z Z Z l> 'oj ~ :l: ~ z '" 0 C !( 0 III , ~ ~ l> C ;:IIi; Z ~ [11 0 i> ~ z '" 'oj Z Z c [11 0 '" C '" -< .. III YI "'4 ~\ ~I j l-"" I~' : ".' ~ ~ ? :::? ~-t'\ .. '1 MARY A. BRETZ, Plaintiff :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYL VANIA V. :DOCKET NO. /') I ,- r_' ~_:1.. C. / .......... r ~-:P'_,J'y / KENNETH 1. BRETZ, SR. and GAIL ILENE BRETZ, Defendants :CIVIL ACTION - EQUITY PRAECIPE TO THE PROTHONOTARY: Please mark the above action as a lis pendens against the property which is the subject of this action and more fully boWlded and described on Exhibit "A" attached hereto, marked Exhibit "A" and made a part hereof, and please index this lis pendens against the defendants, Kenneth 1. Bretz, Sr. and Gail Ilene Bretz, RESPECTFULL Y SUBMITTED: ~ William C. Kollas, Esquire Supreme Court LD. No. 06341 Dated: .5) 7-/,;:> I );;~~ Supreme Court LD. No. 81959 KOLLAS AND KENNEDY 1104 Femwood Avenue Suite 104 Camp Hill, PA 17011 (717) 731-1600 ATTORNEY FOR PLAINTIFF rt'(' d \ (J1 I '- Special Wananty Deed Tax Parcel 10 I Instrument' THIS DEED MADE THIS fr;;;y OFd'''~''-IN THE YEAR TWO THOUSAND 120001 BETWEEN: MARY ANN BRETZ, widow woman. 01 east Pennsboro TownshlD. PennsvlvlIn/a. HEREINAFTER REFERRED TO AS "GRANTOR" AND KENNETH L. BRETZ AND GAIL ILENE BRETZ. husband and wile, of Ent Pennsboro TownshlD. Pennsvlvanla. HEREINAFTER REFERRED TO AS "GRANTEES" WITNESSETH, THAT INCONSIDERATION OF ONE ($1,00) DOLLAR, Natural love and aflectlon IN HAND PAID. THE RECEIPT OF WHICH is HEREBY ACKNOWLEDGED. THE GRANTOR DOES HEREBY CONVEY TO SAID GRANTEES. THEIR HEIRS AND ASSIGNS. ALL THAT CERTAIN TRACT LOT OR TRACT OF LAND situate in East Pennsboro Township, Cumberland County. Pennsylvania, more particularly bounded and described as follows, to wit: BOUNDED on the north by the public road known as Creekside Drive; on the east by land now or formerly of George Reichert; one the south by the Conodoguinet Creek and on the west by land now or late of John Eckert; also known as L.ot NO.2 in the hereinafter referred to Plot Plan: HAVING THEREON ERECTED A TWO STORY FRAME DWELLING HOUSE known as 40 Creekside Drive, Enola, Pennsylvania 17025. BEING THE SAME PREMISES which Vance W. Bretz and Mary Ann Bretz as husband and wife, received by deed dated the 25th day of January 1950, from Vance W. Bretz and recorded in the Cumberland County Recorder of Deeds Office in Deed Book J, Vol. 14, Page 23 on the 30th day of January 1950, except for a tract of land known as Lot No.1 on a subdivision plan of D.P. Raffensperger of June Zl, 1975 as will more fully appear in Plan Book _ Page _ as recorded in the Recorder of Deeds Office of Cumberland County, which was conveyed to Vance W. Bretz Jr. and Linda Lee Bretz by deed dated December 9,1975 as will more fully appear in Deed Book K, Volume 26, Page 348. Vance W. Bretz died on the 21st day of May, 1996, thereby vesting sole title in his wife, Mary Ann Bretz, the grantor herein. 2,ou~ 223 ''I,Cf , 55 ~ ~ ~ .. EXHIBIT \\ A" .......................~..................................................................... - . COMMONWEALTH OF PENNSYLVANIA) ) 85.: COUNTY OF CUMBERLAND ) RECORDED ON THIS 4 DAY OF ?()~ A.D. 2000, IN THE RECORDER'S OFFICE OF SAID COUNTY IN DEED BOOK ;;{:)3. PAGE )<) GIVEN UNDER MY HAND AND THE SEAL OF J1~jll~ OFFICE, THE DATE ABOVEWRllTEN. ~ RECORDER '::J CJ '- f:: .~ - ..., ~~~ ~::: :'.:': -,1....' ',! f~~ ,;:.; ::/ co " 3 <:::"):' '.' f..) ,.' " "";": r,)' :-! [.~ G , "> " ;:;:!~il.~;:;~,:. ~'~~:. ~I.~.~~,..".!:.:, . .~~.T-."'!1'J..!.'t":P:,..tl.'H.*,'~ . ~"t...Jf.;,; 'Am).~''''';/''''''''''''.' . .!;,::.Q.;~\,..-:::...~.~-~~9"..Hl'. ,...,,,.;,,1;';,., ....~i?1>i..~h . ~"f;':,'~~ ~\'x.~' ....f". ,,",~r...->>;S!i(r,t". .,'..~".....:.-.-. ",' ,',' I'" .'. -,,", '\r\:"lf:g:'t.~ .1,~{~}1.;:j' "j\..,cJ.-., \'. ,. ::~.,~~:~~:~7-.11~~~~~,~~:'~ ;::\J~:,~ 1.~<;:..,........';~l'f.::.....u'"~_..,1"":I\J,......, ~.. ~'~._~"'......t...' .., ....,. ~r-.:~";Cl);.:!",~.......;;..~-.:,~Q.., . '1 "'''~'.'';~~-.!'i. "'~.' >- N a en eoo~ 223 PACE S'l THIS IS A CONVEYANCE FROM MOTHER TO SON AND WIFE AND IS THEREFORE EXEMPT FROM PENNSYLVANIA REALTY TRANSFER TAX. AND, the said GRANTOR hereby specially warrants the property cOnveyed. IN WITNESS WHEREOF, THE GRANTOR HAS HEREUNTO SET HER HAND AND SEAL, THE DAY AND YEAR FIRST ABOVE WRllTEN. SIGNED, SEALED AND DELIVERED IN THE PRES~E OF A O<{.Me~6; Y1)0/r4 anm J1..1' (SEAL) MAR5V ANN BRE~LVo- ........................................................................................... COMMONWEALTH OF PENNSYLVANIA) ) 55, COUNTY OF CUMBERLAND ) 9tL--'- ON THIS, the day of c:;-~ A.D.,2000, before me, the undersigned officer, personally appeared MARY ANN BRETZ, widow woman, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged she executed the same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. ~~$~f!L-- .....~~J A!!.,., My commisliQn expir8l': .... ","'~""''-.:'':. " Notalial Seal .," t) /. .1,(\1-, ~.( _ .: Donalda, Owen, Notary Public: _:~.. ,:'J:':>" '':~. ..... East Pennsboro T""l'.. Cumberland County MyCommlsslonE~lresNov_2-4,2000 : :_ :Ie .C"): Membllr,PennsylVaniaAssoctationOlNOlari85 ...'y.... ('7:. ....;,.- ~..~- I HEREBY CERTIFY, THAT THE PRECISE RESIDENCE OF THE GRANTEES;l~O.:::l::~,-:~~<:) 26 Riverview Drive Enola, PA 17025 I JJ Il ' 's (r~> ~~(JL-- "''' Attorney For: --Ie.. 9t ~ 800K 223 rAGE · 56 CERTIFICATE OF SERVICE I, Carole A. Rose, of the Law Offices ofKollas and Kennedy, hereby certifY that I have this 'lfu day of March, 2001, served a true and correct copy ofa PRAECIPE by depositing same in the United States mail, first-class, postage prepaid, addressed to the following: Kenneth 1. Bretz, Sr, 26 Riverview Drive Enola, PA 17025 Defendant Gail Ilene Bretz 26 Riverview Drive Enola, PA 17025 Defendant LAW OFFICE OF KOLLAS AND KENNEDY BY \Q.~ Cl \2n~ r-~ " 1:)' ~ ") "....J '10.;, , ..... '" '"'- ALL-STATE LEGAL. A DMSfONOF ALL-STA'fEWINTalNAllONAL, FORM NO.' 07152.BF'07153-BL'071S5-GY'07156.W!-l . n l> 3: 'U ~ J: - 0 F 0 ~ r .. ~ ;:j 'U ." 1I1 1I1 0 Ul ~ Z ;U ;U Z Z z l> " Ul == ~ Z '" ~ 0 C 0 Ul iii l> 0 ; ~ 0 Z ~ 1'1 0 :;; ~ Z 1I1 " Z Z 0 c: 1'1 - 1I1 C '" -< '" - II> ~ f ~ ~ :t J? r ~~, " ..... .. ;':l ~ . -: ~! ." .'~ : SHERIFF'S RETURN - REGULAR Ej. CASE NO: 2001-01287 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BRETZ MARY A VS BRETZ KENNETH SR ET AL WILLIAM DIEHL Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - EQUITY was served upon BRETZ GAIL ILENE the DEFENDANT at 1915:00 HOURS, on the 8th day of March , 2001 at 26 RIVERVIEW DRIVE ENOLA, PA 17025 by handing to KENNETH BRETZ - HUSBAND a true and attested copy of COMPLAINT - EQUITY together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 6.00 .00 .,00 10,00 .00 16.00 So Answers: r;a~~~~A R. Thomas Kline 03/12/2001 JAMES KOLLAS day of WI Deputy She ,~ Sworn and Subscribed to before By: me this :/ilk ~ ~I A.D. Ih L ILQ,~ - prothonotary'~ SHERIFF'S RETURN - REGULAR CASE NO: 2001-01287 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BRETZ MARY A VS BRETZ KENNETH SR ET AL WILLIAM DIEHL Sheriff or Deputy Sheriff of Cumberland County,pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - EQUITY was served upon BRETZ KENNETH L SR the DEFENDANT , at 1915:00 HOURS, on the 8th day of March , 2001 at 26 RIVERVIEW DRIVE ENOLA, PA 17025 by handing to KENNETH BRETZ a true and attested copy of COMPLAINT - EQUITY together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: 18,00 9,30 .00 10.00 .00 37.30 r~'A:~ R, Thomas Kline 03/12/2001 JAMES KOLLAS Sworn and Subscribed to before By: W~~j ~ff me this ,Pi Cb day of ~ ;;u.., / A.D. (-1..... Q ~~) '--12;;;ono~ary / MARY A. BRETZ, Plaintiff v. KENNETH L. BRETZ, SR. and GAIL ILENE BRETZ, Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 01-1287 EQUITY TERM PRAECIPE FOR ENTRY OF APPEARANCE Please enter the appearance of the undersigned on behalf of Defendants, Kenneth L. Bretz, Sf., and Gail Ilene Bretz, in the above-captioned matter. Dated: 3~ 29 ~Ol 38306.1 Respectfully submitted, TUCKERARENSBERG & SWARTZ BY~~ Attorney I.D. #39182 III North Front Street P.O. Box 889 Harrisburg, PA 17108-0889 (717) 234-4121 Attorney for Defendants . . CERTIFICATE OF SERVICE AND NOW, this 3J;tt day of ~IL. ,2001, PAULA J. BEITER, for the firm of TUCKER ARENSBERG & SWARTZ, attorneys for Defendants, hereby certify that I have this day served the within document by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: James W. Kollas, Esquire Kollas and Kennedy 1104 Fernwood Avenue Suite 104 Camp Hill, PA 17011 J V?tu4..;r.I1~ PAULA J. BEiTER MARY A. BRETZ, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v, CIVIL ACTION - EQUITY KENNETH L. BRETZ, SR. and GAIL ILENE BRETZ, NO. 01-1287 EQUITY TERM Defendants DEFENDANTS' PRELIMINARY OBJECTIONS AND NOW, comes the Defendants and file Preliminary Objections to the Plaintiff's Complaint and states as follows: FAILURE TO STATE A CAUSE OF ACTION (DEMURRER) I. Plaintiff attempts to allege in Paragraph 10 of her Complaint that she did not possess" sufficient mental capacity to comprehend the true meaning of the deed or the effects of her acts. " 2. To the extent that the Plaintiff is alleging that she is mentally incompetent to legally transfer the property in question, then Plaintiff's Complaint is legally insufficient. 3. Prior to the execution of the Deed, the Plaintiff was not previously adjudicated to be incompetent. 4. Absent an adjudication of competency, a claim to set aside a deed based on the mental incapacity of the Plaintiff as set forth in Paragraph 10 is not legally sufficient. 5. Likewise, the allegations set forth in Paragraph 11 as to being under the influence of medication so as to adversely affect her reasoning and comprehension is likewise legally insufficient. 6. Consequently, the Plaintiff has failed to state a legally sufficient claim to have the Deed set aside on the basis of, or lack of, sufficient mental capacity, LACK OF SUFFICIENT SPECIFICITY 7. Plaintiff alleges that there was a confidential relationship that existed between Mary Bretz, Kenneth Bretz and Mary A. Bretz. 8, Plaintiff fails to state with sufficient legal specificity the exact nature of the alleged confidential relationship between the parties. 9. The Plaintiff alleges that the Defendants had the opportunity to use, and did use, both superior intellectual and physical capacity over Mary A. Bretz to the Plaintiff's disadvantage. 10, Plaintiff does not state with sufficient legal specificity the various opportunities of when and how the alleged superiority was exercised. 11. Plaintiff alleges that the acts of the Defendant constituted fraud, duress, coercion and undue influence. 12. Plaintiff does not allege with sufficient legal specificity the fraud, duress, coercion and undue influence. 13. Pursuant to Pa.R.C.P. 1019(b), Plaintiff must make averments of fraud with particularity, unlike what she has set forth in her Complaint. WHEREFORE, Defendants respectfully request this Honorable Court to dismiss Plaintiffs Complaint on the basis that: (a) It fails to state a cause of action due to the Plaintiffs lack of mental capacity not having previously been adjudicated to be legally incompetent or; alternatively, (b) Require the Plaintiff to plead with specificity the nature of a confidential relationship that allegedly existed, the use of the alleged superiority of the Defendants over the Plaintiff, and the particulars of the alleged fraud, duress, coercion and undue influence. Respectfully submitted, TUCKER ARENSBERG & SWARTZ By ;f2~ Attorney 1.0. #39182 III North Front Street P.O. Box 889 Harrisburg, P A 17108-0889 (717) 234-4121 Dated: Lj-tj-PJ Attorney for Defendants 38595,[ CERTIFICATE OF SERVICE AND NOW, this ~hl... day of t1rW- ,2001, PAULA J. BEITER, for the firm of TUCKER ARENSBERG & SWARTZ, attorneys for Defendants, hereby certify that I have this day served the within document by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: James W. Kollas, Esquire Kollas and Kennedy 1104 Fernwood Avenue Suite 104 Camp Hill, PA 17011 '; , (~r fJ~ PAULAJ. M:ITER PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and sul:mitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argunent Court. --------------------------------------------------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) MARY A. BRETZ, ( Plaintiff) vs. KENNETH L. BRETZ, SR. and GAIL ILENE BRETZ, ( Deferx:lant ) No. 01-1287 Equity Term 1. State matter to be argued (Le., plaintiff's m::>tion for new trial. defendant's danurrer to canplaint. etc.): Defendant's preliminary obj ections 2. Identify counsel who wi..ll argue case: (a) for plaintiff: James W. Kallas, Esquire ~s: 1104 Fernwood Avenue Ste. 104 Camp Hill, PA 17011 (b) for defendant: Dennis R. Sheaffer, Esquire ~s: 111 N. Front Street P.O. Box 889 Harrisburg, PA 17108-0889 3. I wi..ll notify all parties in writing within tIoU days that this case has been listed for argurent. 4. Argunent Court Date: May 23, 2001 G3ted: 4/1Q/o/ ~rn~~ MARY A. BRETZ, PLAINTIFF : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. KENNETH L. BRETZ, SR. and GAIL ILENE BRETZ, DEFENDANTS 01-1287 EQUITY BEFORE SA YLEY. J. AND HESS, J. ORDER OF COURT AND NOW, this:z.bday of July, 2001, the preliminary objections of defendants to plaintiffs complaint, ARE DISMISSED. James W, Kallas, Esquire For Plaintiff Dennis R. Sheaffer, Esquire For Defendants :saa B / , ,. / { , .' r " \: ~ Edgar B, BayleY; J. ~ ?~ <,\,0\ <\,1}:. MARY A. BRETZ, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL V ANlA Plaintiff v. CIVIL ACTION - EQUITY NO. 01-1287 EQUITY TERM KENNETH L. BRETZ, SR. and GAIL ILENE BRETZ, Defendants NOTICE TO PLEAD TO: James W. Kollas, Esquire Kollas and Kennedy 1104 Fernwood Avenue Suite 104 Camp HilI, PA 1701 I YOU ARE HEREBY notified to file a written response to the enclosed Answer With New Matter within twenty (20) days from service hereof or a judgment may be entered against you. Respectfully submitted, TUCKER ARENSBERG & SWARTZ By: ~1!::rf- Attorney LD. #39182 111 North Front Street P.O. Box 889 Harrisburg, PA 17108-0889 (717) 234-4121 Dated: c?-- J..? ~ d I Attorney for Defendants MARY A. BRETZ, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA Plaintiff v. CIVIL ACTION - EQUITY KENNETH L. BRETZ, SR. and GAIL ILENE BRETZ, NO. 01-1287 EQUITY TERM Defendants DEFENDANTS' ANSWER WITH NEW MATTER TO PLAINTIFF'S COMPLAINT AND NOW, come Defendants, Kenneth L. Bretz, Sr. and Gail Ilene Bretz, by and through their attorneys, Tucker Arensberg & Swartz, and answers Plaintiffs Complaint as follows: I. Admitted in part; denied in part. It is admitted that Plaintiff is an adult individual. It is denied that Plaintiff ever maintained her residence at 34 Sherwood Circle, Enola, Cumberland County, Pennsylvania. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted in part; denied in part. It is admitted that Defendant Kenneth L. Bretz, Sr. was named as an Attorney-in-Fact in the Power of Attorney. It is denied that Kenneth L. Bretz was named the sole Attorney-in-Fact for the Plaintiff. To the contrary, Michele King was also named as an Attorney-in-Fact. 8. Admitted in part; denied in part. It is admitted that on or about June 9, 2000, Plaintiff gave her real property located at 40 Creekside Drive, Enola, Cumberland County, Pennsylvania, to the Defendants by Deed, and that a true and correct copy of said Deed is attached as Exhibit "B" to the Complaint. It is specifically denied that the Defendants took the Plaintiff to their attorney's office. To the contrary, the attorney, Donald B. Owen, Esquire, was the Plaintiff's attorney. It is further denied that the Defendants or Attorney Owen urged the Plaintiff to transfer the real estate to the Defendants. To the contrary, it was at the Plaintiff's request that Attorney Owen prepared the Deed, and it was her intention to provide the real estate to the Defendants as a gift. She made the transfer of her own free will and volition and without any urging, undue influence, coercion, or insistence by the Defendants. 9. The allegation is denied to the extent that it is contrary to the specific language used in the Deed. The language of the Deed speaks for itself. 10. Admitted in part; denied in part. It is admitted that at the time of transfer, Plaintiff was 73 years old. It is specifically denied that the Plaintiff was in a weakened state, either physically or mentally. It is specifically denied that she was easily influenced and did not possess sufficient mental capacity to comprehend the true meaning of the Deed or the effects of her transfer of the real estate by Deed. To the contrary, at the time of the transfer in question, Ms. Bretz was completely independent, and dependent upon no one. She was physically and mentally capable of dictating her own affairs. She certainly was not easily influenced and was of 2 sound mind, such that she was able to fully understand the nature of her actions, as well as the true meaning of her deeding the property to the Defendants. II. Denied. It is specifically denied that at the time of the transfer in question that the Plaintiff was under the influence of anything, including medication, that would adversely affect her reasoning and comprehension to the extent that she would not have possessed sufficient mental capacity to comprehend the results of her acts and the meaning of the Deed. To the contrary, Ms. Bretz fully understood the meaning of the Deed and the effects of her acts and had more than sufficient mental clarity to understand the true meaning of her actions. Her reasoning was not adversely affected in any fashion, and particularly, not by any type of medication which she may have been taking at the time. 12. Denied as a conclusion of law. By way of further denial, there was no confidential relationship between the Defendants and Plaintiff To the contrary, Plaintiff was completely independent, living on her own, taking full care of her needs and not relying upon the Defendants in any fashion. Defendant Kenneth L. Bretz was the Plaintiffs son and one of two Attorneys-in-Fact, yet, up to that point in time, had never exercised any of his powers granted to him by the durable Power of Attorney. 13. Denied as a conclusion of law. By way of further denial, it is specifically denied that a confidential relationship existed between the Plaintiff and Defendants. Defendant Kenneth L. Bretz was the Plaintiffs son and one of two Attorneys-in-Fact, yet, up to that point in time, had never exercised any of his powers granted to him by the durable Power of Attorney, nor did anything to foster a confidential relationship. 3 14. Denied. It is specifically denied that at the time of the transfer, Defendant Kenneth L. Bretz occupied a superior and overmastering position over Plaintiff, intellectually and physically, and had the opportunity to use, and did use, that superiority to the disadvantage of the Plaintiff To the contrary, Plaintiff was completely and totally independent, physically and mentally, from Defendant Kenneth L. Bretz. She did not rely upon the Defendant Kenneth L. Bretz in any fashion, nor was she subjected to any alleged intellectual and physical superiority such that it would have disadvantaged her. 15. Denied. It is specifically denied that at the time of the transfer, Defendant Gail Ilene Bretz occupied a superior and overmastering position over Plaintiff, intellectually and physically, and had the opportunity to use, and did use, that superiority to the disadvantage of the Plaintiff To the contrary, Plaintiff was completely and totally independent, physically and mentally, from Defendant Gail Ilene Bretz. She did not rely upon the Defendant Gail Ilene Bretz in any fashion, nor was she subjected to any alleged intellectual and physical superiority such that it would have disadvantaged her. 16. Denied as a conclusion oflaw. By way of further denial, it is specifically denied that Defendants used any fraud, duress, coercion or undue influence to induce the Plaintiff to execute the Deed in question. To the contrary, the Plaintiff had requested her own counsel to prepare the Deed and executed the Deed in an exercise of her own free will and volition with full knowledge of the effect of her actions and the true meaning of the Deed. 17. Denied as a conclusion oflaw. By way of further denial, it is specifically denied that Kenneth L. Bretz took any actions which constituted fraud, duress, coercion or undue 4 influence, and that he specifically did not use excessive importunity, verbal abuse, intimidation or threats which were directed at the Plaintiff 18. Denied as a conclusion of law. By way of further denial, it is specifically denied that Defendant Gail Ilene Bretz took any actions which constituted fraud, duress, coercion or undue influence, and that she specifically did not use excessive importunity, verbal abuse, intimidation or threats which were directed at the Plaintiff 19. Denied. It is specifically denied that any of the alleged acts committed by the Defendants occurred at all, let alone at or near the time of the execution of the Deed, and for any period prior thereto. 20. Denied. It is specifically denied that any of the aforesaid acts which were allegedly committed by the Defendants and directed to the Plaintiff ever occurred. It is specifically denied that Defendants had any intent to force the Plaintiff to execute the Deed to give her real estate to the Defendants. to the contrary, it was the Plaintiff's wish and desire to transfer the real estate in question to the Defendants and she did so as a free act and of her own volition. 21. Admitted in part; denied in part. It is admitted that the Defendants have refused to deed back the property to the Plaintiff. It is denied that there were repeated demands made by the Plaintiff for the return ofthe real property. To the contrary, the first demand for the return of the real property did not occur until the Plaintiff filed her Complaint beginning the present action. 5 NEW MATTER 22. Plaintiff has failed to state a cause of action upon which relief can be granted. 23. Plaintiff resided at 40 Creekside Drive, Enola, Cumberland County, Pennsylvania, from the time of transfer on or about June 9,2000, through the present. 24. Plaintiff had a massive stroke on December 28, 2000, during the night into the morning of December 29, 2000. WHEREFORE, Defendants respectfully request that the Plaintiffs Complaint be dismissed and attorneys' fees and costs be assessed against the Plaintiff, as well as any other relief this Court deems appropriate. Respectfully submitted, TUCKER ARENSBERG & SWARTZ By: 22~~ Attorney J.D. #39182 III North Front Street P.O. Box 889 Harrisburg, PA 17108-0889 (717) 234-4121 Dated: g/ 7p~t'1 Attorney for Defendants 42461.1 6 VERIFICATION I, the undersigned, KENNETH L. BRETZ, SR., do hereby certify that I am the DEFENDANT in the foregoing action, and that the statements made in the foregoing ANSWER WITH NEW MATTER are true and correct to the best of my knowledge, information and belief I understand that any false statements made to this verification are subject to the penalties of 18 Pa. C.S.A. 94904, relating to unsworn falsification to authorities. DATE: 'fI)J.O Jt1( ~d, KENNETH L. BRETZ VERIFICATION I, the undersigned, GAIL ILENE BRETZ, do hereby certify that I am the DEFENDANT in the foregoing action, and that the statements made in the foregoing ANSWER WITH NEW MATTER are true and correct to the best of my knowledge, information and belief I understand that any false statements made to this verification are subject to the penalties of 18 Pa. C. S.A. 94904, relating to unsworn falsification to authorities. DATE: ql:2..0(Ol ~~~ GAIL ILENE BRETZ CERTIFICATE OF SERVICE ANDNOW,this c?f-xi dayof t(~~ ,2001,PAULAJ.BEITER, for the firm of TUCKER ARENS BERG & SWARTZ, attorneys for Defendants, hereby certify that I have this day served the within document by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: James W. Kollas, Esquire Kollas and Kennedy 1104 Fernwood Avenue Suite 104 Camp Hill, P A 17011 /'J G t7f-U~ q-, 13.a~.,.'-" PAULAJ. BEI~R MARY A. BRETZ, Plaintiff :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYL VANIA V. :DOCKET NO. 01-1287 Equity Tenn KENNETH 1. BRETZ, SR. and GAIL ILENE BRETZ, Defendants :CIVIL ACTION - EQUITY REPLY TQ NEW MATTER 22. Denied as constituting a conclusion of law to which a responsive pleading is not required under the Rules of Civil Procedure. 23. Admitted in part and denied in part, It is admitted that Plaintiff, Mary A. Betz, resided at 40 Creekside Drive, Enola, Cumberland County, Pennsylvania from the time of the transfer until or around December 28, 2000. It is denied that Plaintiff, Mary A. Bretz, resided at said address from December 28, 2000, until or around, April 2, 200 I. 24, Admitted in part and denied in part. It is admitted that on or around December 28, 2000, Plaintiff, Mary A. Bretz suffered a stroke. It is denied that said stroke was "massive." By way of further reply, Plaintiff, Mary A. Bretz, has substantially recovered from said stroke. WHEREFORE, Plaintiff reaffirms her demand for relief as outlined in her Complaint. RESPECTFULLY SUBMITTED: k@!4<- William C, Kollas, Esquire Supreme Court I.D, No. 06341 /- /k ~' James W. Ko1las Supreme Court I.D, No, 81959 KOLLAS AND KENNEDY 1104 Fernwood Avenue Suite 104 Camp Hill, P A 17011 (717) 731-1600 ATTORNEYS FOR PLAINTIFF Dated: q\'l\n\ MARY A. BRETZ, Plaintiff :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYL VANIA V, :DOCKET NO, 01-1287 Equity Term KENNETH L. BRETZ, SR and GAIL ILENE BRETZ, Defendants :CIVIL ACTION - EQUITY VERIFICATION I, Mary A. Bretz, the plaintiff herein, verifY that the statements made in the foregoing Reply To New Matter are true 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 unsworn falsification to authorities. By: -n CI. , I~ Mary A{~retz ~ DATE: q\41ol MARY A BRETZ, Plaintiff :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA v. :DOCKET NO. 01-1287 Equity Term KENNETH L. BRETZ, SR. and GAIL ILENE BRETZ, Defendants :CIVIL ACTION - EQUITY C~~TIFlCATE OF SERVICE AlX-. I, Carole A. Rose, of the Law Offices ofKol1as and Kennedy, hereby certifY that I have this ~ day of & ~~ , 2001, served a true and correct copy ofREPL Y TO NEW MA TIER by depositing same in the United States mail, first class, postage prepaid, addressed to the fullowing: Dennis R. Sheaffer, Esquire TUCKER, ARENSBERG & SWARTZ 111 N. Front Street P.O. Box 889 Harrisburg, PA 17108-0889 Attorney for Defendants LAW OFFICES OF KOLLAS AND KENNEDY ~Q.w~ BY: Carole A. Rose Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MARYA. BRETZ, v. NO. 01-1287 EQUITY TERM KENNETH L. BRETZ, SR. AND GAIL ILENE BRETZ, Defendants CIVIL ACTION - EQUITY PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY: Please discontinue the civil suit against Kenneth L. Bretz, Sr., and Gail Ilene Bretz in the above-captioned action with prejudice. J /~ ~ {/ #:;~~, ~ames W. Kollas, Esquire ,/ Supreme Court I.D. # 81959 KOLLAS AND KENNEDY 1104 Fernwood Avenue Camp Hill, PA l7011 Phone: (717) 731-1600 ATTORNEY FOR PLAINTIFF DATED: :)\lk\04' .' ;:c: . 7V t'\ ~ t. ~j <:> ~ 'f; "'" y ~ ~ " d S, ;'- t '" ',;,:~ ~ ~. ;- () ~ tS j ~' 7'\ \: 1 \\ t ~ c' t: L '