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HomeMy WebLinkAbout11-1572Hubert X. Gilroy, Esquire MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES I.D. 29943 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff BEVERLEY A. FONTANELLA, Plaintiff V. MARK A. HERSH, Defendant ?t- L L3 ` ?' FI FEO 10 AMA 13 9 L E R L "'? x;13 r:C'l k? T `11' J EEN4SYL'VAN'.i? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO.2011- Isla Cl ?1 CIVIL ACTION - LAW 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 Plaintiffs. 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCE FEE OR NO FEE: Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 CS) at&qq-g- ,bNal1 &A-4g357CP PAasy9?5.3 F:\Clients\12923 Fontanella112923.1.Complairn Revised: 2/11/11 8:16AM Hubert X. Gilroy, Esquire MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES I.D. 29943 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff BEVERLEY A. FONTANELLA, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO.2011- / 7a?- CIVIL ACTION - LAW MARK A. HERSH, Defendant COMPLAINT Plaintiff, Beverley A. Fontanella, by her attorneys, Martson Law Offices, sets forth the following: 1. Plaintiff, Beverley A. Fontanella, is an adult individual residing at 28 North Orange Street, Carlisle, Cumberland County, Pennsylvania 17013. 2. Defendant, Mark A. Hersh, an adult individual residing at 365 Melbourne Lane, Mechanicsburg, Cumberland county, Pennsylvania, 17050. 4. In conjunction with a divorce action between the parties, the parties executed a Marital Settlement Agreement (Agreement) dated July 24, 2006. A copy of the Agreement is attached hereto and marked Exhibit `A'. 5. Pursuant to section 7.2 of the Agreement, Defendant received title of a certain 2000 Ford Explorer automobile and Plaintiff received title to a certain 2005 Honda automobile. 6. It was the intention of the parties in connection with the Agreement that Defendant was to assume the lien owing on the 2000 Ford automobile and Plaintiff was to assume the lien on the 2005 Honda automobile. 7. Plaintiff fulfilled her obligations under the Agreement by making payments on the loan owing on the 2005 Honda automobile. 8. Defendant took possession of the 2000 Ford automobile, used the automobile to his exclusive benefit and enjoyed the benefits of said automobile. 9. In July of 2006 at the time of execution of the Agreement, a lien was held in favor of national Auto Finance Company on the 2000 Ford Explorer. After July of 2006, Defendant made periodic payments on said lien consistent with the intent and Agreement of the parties. 10. Defendant ultimately defaulted on the lien owing on the 2000 Ford Explorer and, despite repeated demands of National Auto Finance Company, Defendant refused to make any payments on said obligation. 11. The obligation on the 2000 Ford Explorer was in both parties names, and the Defendant's failure to make payment on said obligation seriously and negatively impacted Plaintiff's credit rating. 12. In an effort to clear the jointly owed obligation on the 2000 Ford Explorer, Plaintiff made payment to Central Credit Services in the amount of $3, 776.13 on March 31, 2010. 13. Plaintiff was required to take out a personal loan to pay the said $3,776.13 and is paying on said personal loan at the interest rate of 5% over four years. COUNTI BREACH OF CONTRACT 14. Paragraphs 1 through 13 are incorporated herein and thereto. 15. Defendant breached his agreement to assume the lien in his name alone and make the payments on the 2000 Ford Explorer as set forth above. 16. Defendant is in breach of the Agreement by its specific terms and the intentions of the parties in connection with the Agreement in that each party had agreed to assume the lien on the automobile which they took in their possession. WHEREFORE, Plaintiff requests that judgment be entered in her favor against Defendant in the amount of $3,776.13 plus interest accruing at the rate of 5% from March 31, 2010 and costs of prosecution. COUNT II QUANTUM MERUIT 17. Paragraphs 1 through 16 are incorporated herein and thereto. 187. Plaintiff conferred a benefit on Defendant by paying the mentioned lien on the automobile and Defendant was benefitted by virtue of Plaintiff paying the debt owing on the said automobile. WHEREFORE, Plaintiff requests that judgment be entered in her favor against Defendant in the amount of $3,776.13 plus interest accruing at the rate of 5% from march 31, 2010 and costs of prosecution. MARTVLA FFICES By: Hubert X. Gilroy, Esquire I.D. No. 29943 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date (? Attorneys for Plaintiff VERIFICATION The foregoing Complaint is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language of the document is that of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the document is that of counsel, I have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities, which provides that if I make knowingly false averments, I may be subject to criminal penalties. LBeverley A. ntanella IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MARK A. HERSH, PLAINTIFF VS. : NO. 06-1443 BEVERLEY A. HERSH, : CIVIL ACTION - LAW DEFENDANT : IN DIVORCE AND CUSTODY MARRIAGE SETTLEMENT AGREEMENT THIS AGREEMENT, made this ;day of , 2006 by and between Mark A. Hersh, of 421 Boxwood Court Mec csburg, Cumberland, Pennsylvania 17050 (hereinafter referred to as "HUSBAND") and Beverley A. Hersh, of 1832 Sterretts Gap Avenue, Carlisle, Cumberland, Pennsylvania 17013 (hereinafter referred to as "WIFE") WITNESSETH: WHEREAS, HUSBAND and WIFE were married March 31, 2005 in Carlisle Cumberland County, Pennsylvania. HUSBAND instituted an action in divorce to No. 06-1443 in the Court of Common Pleas of Cumberland County, Pennsylvania on March 14, 2006. The pleadings in the case requested dissolution of the marriage between the two parties and for such further relief that the Court may deem equitable and just; and WHEREAS, the parties have reached an agreement as to the settling of all matters relating to the divorce and to the custody and support of the child born to this these parties: Hunter D. Hersh, age 4 born December 3, 2001. NOW, THEREFORE, in consideration of the promises and the mutual promises, Page I of 8 EXHIBIT covenants and undertakings hereinafter set forth and for other good and valuable consideration, receipt of which is hereby acknowledged by each of the parties hereto, HUSBAND and WIFE, each intending to be legally bound, hereby covenant and agree as follows: 1. The parties intend to maintain separate and permanent domiciles and to live apart from each other. It is the intent and purpose of this Agreement to set forth the respective rights and duties of the parties while they continue to live apart from each other. 2. The terms of this Agreement and their effect have been fully explained to the HUSBAND by his counsel, Jane M. Alexander, Esquire. WIFE has been advised of her rights and the terms of this agreement by her counsel, Hubert X. Gilroy. The parties acknowledge that they have received independent legal advice from counsel of their choice and have been fully informed as to their legal rights and obligations or have chosen not to do so. The parties understand the facts and acknowledge and accept this Agreement as fair and equitable. I The parties have attempted to divide their matrimonial property in a manner which conforms to a just and right standard, with due regard to the rights of each party. It is the intent of the parties that such division shall be final and shall forever determine their respective rights. The division of existing marital property is not intended by the parties to constitute in any way a sale or exchange of assets, and the division is being effected without the introduction of outside funds or other property not constituting a part of the marital estate. 4. Neither party shall molest, harass, annoy, injure, threaten or interfere with the other party in any matter whatsoever. Each party may cant' on and engage in any employment, Page 2 of 8 profession, business or other activity as he or she may deem advisable for his or her sole use and benefit. Neither party shall interfere with the uses, ownership, enjoyment or disposition of any property now owned and not specified herein or property hereafter acquired by the other. 5. The consideration for this contract and agreement is the mutual benefits to be obtained by both of the parties hereto and the covenants and agreements of each of the parties to the other. The adequacy of the consideration for all agreements herein contained is stipulated, confessed, and admitted by the parties, and the parties intend to be legally bound hereby. 6. DEBTS OF THE FARTIEa: It is mutually agreed and understood by and between the parties that all joint debts have been paid including open accounts, credit cards, and bank liabilities except as hereinafter set forth: 6.1) The HUSBAND shall assume all liability for and pay and indemnify the WIFE against liability for all debts and bills in his name alone, particularly those incurred since date of filing Complaint in Divorce. 6.2) The WIFE shall assume all liability for and pay and indemnify the HUSBAND against liability for all debts and bills in her name alone, particularly those incurred since date of filing Complaint in Divorce. 6.3) The two Visa accounts and the MasterCard account all in Husband's name have been paid in full and the accounts closed. Page 3 of 8 7. PERSONAL PROPERTY: As to all items of personal property which the parties have divided to their mutual satisfaction, henceforth, each of the parties shall own, have and enjoy independently of any claim or right of the other party, all items of personal property of every kind, nature and description and wherever situated, which are now owned or held by or which may hereafter belong to the HUSBAND or WIFE, with full power to the HUSBAND or the WIFE to dispose of same as fully effectually, in all respects and for all purpose as if he or she were not married. Specific disposition of major items or personal property is as follows: 7.1) Bank Accounts: Each party has opened and maintained their own separate bank accounts since the time of separation. Neither party will make a claim against those funds. 7.2) Vehicles: a) HUSBAND shall retain possession, title, and sole ownership to the following vehicles: 2000 Ford Explorer, Wife will sign over her interest in vehicle to Husband. b) WIFE shall retain possession, title, and sole ownership to the following vehicles: 2005 Honda Elantra which is in Husband's name. Husband will sign over his interest in vehicle. Wife shall seek refinancing of the debt on the vehicle on or before Dec 3l, 2006. Wife shall hold Husband harmless from any debts, or encumbrance or costs relating to said vehicle. 7.3) Household furnishings: The parties have divided the household Page 4 of 8 furnishings to their mutual satisfaction. 7.4) Pensions: Stock options, Retirement funds, IRAs: a) Neither party will make any claim against any 401 K's, Pension Plans, Retirement Funds or any other savings plans of the other party. If any releases or other documents are required to confirm removal of spouse's interest both parties agree to cooperate in signing said documents. 8. SPOUSAL SUPPORT/ALIMONY: Neither party has or will make claim for spousal support and/or alimony. 9. CUSTODY AND CMLD SUPPORT: a) Custody: of Hunter D. Hersh shall be governed by the Order of Court dated May 30, 2006 signed by Judge Ebert. These parties agree that, in addition to the terms of the order, if either parent is unable to provide day care for the child for a period in excess of four hours, the custodied parent shall contact the other parent to provide day care. b) Child Support: The support action filed in the Cumberland County Domestic Relations Office to PACSES Case Number 242108193 shall be terminated. Husband agrees to pay one half the day care and all medical expenses for the child which are not covered by insurance. 11. BANKRUPTCY: The parties hereby agree that the provision of the Agreement shall not be dischargeable in bankruptcy and expressly agree to reaffirm any and all obligations contained Page 5 of 8 herein. In the event a party files such bankruptcy and pursuant thereto obtains a discharge of any obligations assumed hereunder, the other party shall have the right to declare this Agreement to be null and void and to terminate this Agreement in which the division of the parties' marital assets and all other rights determined by this Agreement shall be subject to court determination the same as if this Agreement had never been entered into. 12. STATUS OF SE'T'TLEMENT: The property settlement as provided herein between the parties shall be considered an equitable distribution of marital property and both parties waive any and all rights or claims which they may have been entitled to raise with respect to the issue of equitable distribution under the Provisions of the Pennsylvania Divorce Act. 13. The parties agree that simultaneously with the signing of this Agreement they will sign the necessary affidavits of consent and affidavits acknowledging notice of marriage counseling in order to conclude the divorce action filed by WIFE under the no-fault provisions of the Pennsylvania Divorce Act. 14. The waiver or unenforceability of any term, condition, clause or provision of this Agreement shall in no way be deemed or considered to be a waiver of or forfeiture of right to enforce any other term, condition, clause or provision of this Agreement. 15. This Agreement shall be construed and interpreted according to the laws of the Commonwealth of Pennsylvania. 16. It is understood and agreed that the heirs, administrators, executors and assigns of the parties hereto shall be bound by all the terms, conditions, clauses and provisions of this Page 6 of 8 Agreement. IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first above written, intending to be legally bound. S BY: A orney for Plaintiff ' Hu . Gilroy, uire Attorney for De dent 91-? a.. WJIAI?- Mark A. Hersh, Plaintiff Beverly WArshk, Defendant ReYer l ey COMMONWEALTH OF PENNSYLVANIA : : SS COUNTY OF CUMBERLAND On this, the day of , 2006, before me the _(i-" undersigned officer, a Notary Public, in d fo 'd Commonwealth and County, Personally appeared Beverly A. Hersh, know to me (or satisfactorily proven) to be the person whose name is subscribed to the foregoing Marriage Settlement Agreement and in due form acknowledged that she executed the same for the purpose therein contained and desired the same to be recorded as such. WITNESS my hand and notarial seal the day and ( ONWSAI.TH F PEWMVMyUI Notary NOWW sd f My Co: Shaiy E=M. Ndary Pudic caAda eaa Qmba *W counq? My Om mkobn Boo ALO 5,20M Alambw, PanroWvanis Asaodatlon of N&Adn Page 7 of 8 Expires: i-s""47 COMMONWEALTH OF PENNSYLVANIA COUNTY OF YORK : SS On this, the I..o` day of , 2006, before me the undersigned officer, a Notary Public, in and for said Commonwealth and County, Personally appeared Mark A. Hersh, know to me (or satisfactorily proven) to be the person whose name is subscribed to the foregoing Marriage Settlement Agreement and in due form acknowledged that he executed the same for the purpose therein contained and desired the same to be recorded as such. WITNESS my hand and notarial seal the day and year aforesaid. Notary Public My Commission Expires: COMMONWEALTH F EN VAMA NftW SMI Narund AWxw du, NoWy PoW DR0Aq ft1%YakCw* W ConMniw W E*ft AW- 7, X10 Member, Pennevlvanle AM"GON d Nd%dN Page 8 of 8 tai`! (Ti 'imp ??' L' r r i •, v_ CO w r v SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy V1 1::1 ?,Fr FILED -0r'F1 'J 1 FEB l 5 pH n e, Richard W Stewart Solicitor `-UMBLii( ?1ladJ ~` R E 'S`A II 3! '. Beverley A. Fontanella vs. Case Number Mark A. Hersh 2011-1572 SHERIFF'S RETURN OF SERVICE 02/11/2011 08:48 PM - Timothy Black, Deputy Sheriff, who being duly sworn according to law, states that on February 11, 2011 at 2048 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Mark A. Hersh, by making known unto himself personally, at 365 Melbourne Lane, Mechanicsburg, Cumberland County, Pennsylvania 17050 its contents and at the same time handing to him personally the said true and correct copy of the same. SHERIFF COST: $37.44 February 14, 2011 TIM AC , DEPUTY SO ANSWERS, RON R ANDERSON, SHERIFF