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HomeMy WebLinkAbout01-2692JANET L. KINGSBOROUGH and: IN THE COURT OF COMMON PLEAS OF WALTER E. KINGSBOROUGH, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. No. 2001- 07/~ ~,2 CIVIL TERM GENEVA L. FRANKFORD and GREGORY J. FRANKFORD, CIVIL ACTION - LAW Defendants 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 an attomey 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 JANET L. KINGSBOROUGH and: IN THE COURT OF COMMON PLEAS OF WALTER E. KINGSBOROUGH, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : V. No. 2001- ,~c 9.z CIVILTERM GENEVA L. FRANKFORD and GREGORY J. FRANKFORD, : CIVIL ACTION - LAW Defendants COMPLAINT AND NOW, come Janet L. Kingsborough and Walter E. Kingsborough, by and through their attorneys, O'Brien, Baric & Scherer, and respectfully represent as follows: 1. The plaintiffs are Janet L. Kingsboreugh and Walter E. Kingsborough (hereinafter "Kingsboroughs"), husband and wife, who are adult individuals who reside at 435 Lewisberry Road, New Cumberland, York County, Pennsylvania. 2. The defendants are Geneva L. Frankford and Gregory J. Frankford (hereinafter 'Frankfords"), husband and wife, who are adult individuals who reside at 14 Dewberry Court, Mechanicsburg, Cumberland County, Pennsylvania. 3. The defendant Geneva L. Frankford is the daughter of the Kingsboroughs. 4. On April 26, 1994, the parties entered into a written agreement (hereinafter "agreement") whereby the Kingsboroughs would pay the Frankfords $72,000.00 in exchange for the Frankfords agreement to provide the Kingsboroughs a home for as long as the Kingsboroughs are able to live in a private residence. A copy of the agreement is attached hereto and marked as "Exhibit A" and is incorporated herein. 5. The agreement was drafted by the defendant, Gregory J. Frankford. 6. The agreement provided that the $72,000.00 was to be applied to the purchase of a new home located at 14 Dewberry Court, Mechanicsburg, Pennsylvania, which real estate was to be titled in the name of the Frankfords alone. 7. The $72,000.00 payment from the Kingsboroughs to the Frankfords represented approximately two-fifths of the cost of the new home located at 14 Dewberry Court, Mechanicsburg. 8. In or about September, 1994, the Kingsboroughs paid the Frankfords $72,000.00 pursuant to the agreement. 9. In or about February, 1995, the Kingsboroughs began to reside at 14 Dewberry Court according to the terms of the agreement. 10. The real estate situate at 14 Dewberry Court, Mechanicsburg, Pennsylvania was titled in the names of the Frankfords alone after the Frenkfords purchased it. 11. The Kingsboroughs resided at 14 Dewberry Court pursuant to the agreement for the period beginning in or about February, 1995 and ending in March, 2001. 12. During the period the Kingsboroughs resided with the Frankfords, the Kingsboroughs paid the Frankfords approximately two-fifths of the various charges for food and utility services which were supplied to the residence at 14 Dewberry Court. 2 13. In May, 2000, the Frankfords advised the Kingsbomughs that they would have to leave the residence located at 14 Dewberry Court, Mechanicsburg, Pennsylvania on or before January 1, 2001. 14. On Mamh 10, 2001, the Kingsbomughs left the residence at 14 Dewberry Court, Mechanicsburg, Pennsylvania at the insistence of the Frankfords. 15. The Frankfords have refused to return the $72,000.00 to the Kingsbomughs. COUNT I BREACH OF CONTRACT April 26, t994 Agreement 16. Paragraphs one through fifteen above are incorporated herein by reference. 17. All conditions precedent to the agreement have been fulfilled by the Kingsboroughs. 18. The Fmnkfords have broached the agreement by ejeoting the Kingsboroughs from the residence at 14 Dewberry Court in violation of the express terms of the agreement. 19. The Kingsboroughs have sought a refund of the sums they paid the Frankfords pumuant to the agreement, and the Fr~nkfords have refused to refund the payment. 3 WHEREFORE, Kingsboroughs demand judgment against the Frankfords for the sum of $72,000.00 plus interest, expenses and costs of suit. COUNT II UNJUST ENRICHMENT/QUANTUM MERUlT IN EQUITY April 26, 1994 Agreement 20. Paragraphs one through nineteen above are incorporated herein by reference. 21. The Kingsboroughs paid $72,000.00 to the Frankfords pursuant to the terms of the agreement. 22. The Frankfords accepted $72,000.00 from the Kingsboreughs and have retained it and refused to repay it to the Kingsboroughs. 23. The Kingsboroughs have few assets remaining and are presently forced to live with their daughter and son-in-law, Joann K. Soulier and Daniel R. Soulier. 24. It is believed and therefore averred that the fair market value of 14 Dewberry Court has increased substantially since the Kingsboroughs payment of $72,000.00 towards the purchase of this home in September, 1994. 25. The Frankfords would be unjustly enriched if they were permitted to keep the $72,000.00 paid to them by the Kingsboroughs. WHEREFORE, Kingsborcughs respectfully request this Honorable Court enter a Decree creating a constructive trust in the ownership equity of 14 Dewberry Court, Mechanicsburg, PA for the benefit of the Kingsboroughs, and: 4 a) award the Kingsboroughs two-fifths of the fair market value of 14 Dewberry Court, Mechanicsburg, Pennsylvania; or, b) award the Kingsbomughs, the sum of $72,000.00 plus interest, expenses and costs of suit. COUNT III BREACH OF CONTRACT Loans 26. Paragraphs one through twenty-five above are incorporated herein by reference. 27. During the time the Kingsboroughs resided with the Frankfords, the Frankfords, together or individually, borrowed sums of money from the Kingsboroughs which remain unpaid. 28. The loans mentioned in preceding paragraph were made orally and with no provision for interest or terms of repayment to the Kingsboroughs. 29 At present, the Frankfords owe the Kingsboroughs $10,300.00 in connection with sums of money the Frankfords borrowed from the Kingsboroughs during the time the parties resided with one another. VVHEREFORE, the Kingsboroughs demand judgment against the Frankfords in the amount of $10,300.00 plus interest and costs of suit. 5 COUNT IV UNJUST ENRICHMENT/QUANTUM MERUIT Loans 30. Paragraphs one through twenty-nine above are incorporated herein by 31. During the time the Kingsboroughs resided with the Frankfords, the Frankfords, together or individually, borrowed sums of money from the Kingsboroughs which remain unpaid. 32. The loans mentioned in preceding paragraph were made orally and with no Provision for interest or terms of repayment to the Kingsboroughs. 33. At Present, the Frankfords owe the Kingsboreughs $10,300.00 in connection with sums of money the Frankfords borrowed from the Kingsboreughs during the time the parties resided with one another. 34. The Frankfords would be unjustly enriched jf they were Permitted to return the sums borrowed from the Kingsboroughs. WHEREFORE, the Kingsboroughs demand judgment against the Franldords in the amount of $10,300.00 plus interest and costs of suit. Respectfully submitted, O'BRIEN, BARIC & SCHERER ichael A. Scherer, Esquire - I.D. # 61974 17 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 Attorney for Plaint/frs ma"'dlr/genllt/klng~boroughlcomplalnLpld VERIFICATION I verify that the statements made 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. § 4904, relating to unswom falsification to authorities. alter E. K~gsl~o~ugh Janet L. ~ingsborou~ DATED:~ ~O~E OR AGRE_F._MENT This document represents an ~reement between Gregory and Geneva Frankford and Walter and Janet KJngsboroug~. This agreement is bindin~ on ~ parties in accordanue with the following provisions unless mutually recinded by all parties. Gregory and Geneva have agreed to provide a home for Walter and Janet for as long as t~ey are each able to live in a private residence. Due to walter's physical condition, living quarters on the first floor ara required. To accommodate this, and ~ecause their current home is not suitable, Gregory and GeneVa will build a new home. This home will be a Cape cod design with a two bedroom Master Suite on the first floor for Walter and Janet's exclusive use. walter and Janet will alsO have full access to all of the common areas in the hou~ with no restrictions. In exchange for this arrangement, walter and Janet have agreed to apply $72,000.00 from the sale of their current home towards the cost of the new home. This is approximately two fifths of the purchas? price. Walter and Janet shall continue to be responslble for their personal debts and liabilities (private phone, car insurance, etc). They ma~ also be asked to pay not more than two fifths of the common expenses (gas, electric, sewer, etc.) if needed. For legal purposes, they will not have part ownership of the real estate. In the event that Gregory and Geneva die before Walter and/or Janet, a minimum of two fifths of the value of the house/property shall be made available for their continued care. Details are described in Gregory and Geneva's Last Will and Testament. signed: Geneva L. Fra~ ~~ =boroU~ witness: S. soulier "EXHIBIT A" JANET L. KINGSBOROUGH and: IN THE COURT OF COMMON PLEAS OF WALTER E. KINGSBOROUGH, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. No. 2001-2692 CIVIL TERM GENEVA L. FRANKFORD and GREGORY J. FRANKFORD, CIVIL ACTION - LAW Defendants 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 an 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 JANET L. KINGSBOROUGH and: IN THE COURT OF COMMON PLEAS OF WALTER E. KINGSBOROUGH, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. No. 2001-2692 CIVIL TERM GENEVA L. FRANKFORD and GREGORY J. FRANKFORD, CIVIL ACTION - LAW Defendants AMENDED COMPLAINT AND NOW, come Janet L. Kingsborough and Walter E. Kingsborough, by and through their attorneys, O'Brien, Baric & Scherer, and respectfully represent as follows: 1. The plaintiffs are Janet L. Kingsborough and Walter E. Kingsborough (hereinafter 'Kingsboroughs"), husband and wife, who are adult individuals who reside at 435 Lewisberry Road, New Cumberland, York County, Pennsylvania. 2. The defendants are Geneva L. Frankford and Gregory J. Frankford (hereinafter "Frankfords"), husband and wife, who are adult individuals who reside at 14 Dewberry Court, Mechanicsburg, Cumberland County, Pennsylvania. 3. The defendant Geneva L. Frankford is the daughter of the Kingsboroughs. 4. On April 26, 1994, the parties entered into a written agreement (hereinafter "agreement") whereby the Kingsboroughs would pay the Frankfords $72,000.00 in exchange for the Frankfords agreement to provide the Kingsboroughs a home for as long as the Kingsboroughs are able to live in a private residence. A copy of the agreement is attached hereto and marked as ~Exhibit A" and is incorporated herein. 5. The agreement was drafted by the defendant, Gregory J. Frankford. 6. The agreement provided that the $72,000.00 was to be applied to the purchase of a new home located at 14 Dewberry Court, Mechanicsburg, Pennsylvania, which real estate was to be titled in the name of the Frankfords alone. 7. The $72,000.00 payment from the Kingsboroughs to the Frankfords represented approximately two-fifths of the cost of the new home located at 14 Dewberry Court, Mechanicsburg. 8. In or about September, 1994, the Kingsboroughs paid the Frankfords $72,000.00 pursuant to the agreement. 9. In or about February, 1995, the Kingsboroughs began to reside at 14 Dewberry Court according to the terms of the agreement. 10. The real estate situate at 14 Dewberry Court, Mechanicsburg, Pennsylvania was titled in the names of the Frankfords alone after the Frenkfords purchased it. 11. The Kingsborcughs resided at 14 Dewberry Court pursuant to the agreement for the period beginning in or about February, 1995 and ending in March, 2001. 12. During the period the Kingsboroughs resided with the Frankfords, the Kingsboroughs paid the Frankfords approximately two-fifths of the various charges for food and utility services which were supplied to the residence at 14 Dewberry Court. 2 13. In May, 2000, the Frankfords advised the Kingsboroughs that they would have to leave the residence located at 14 Dewberry Court, Mechanicsburg, Pennsylvania on or before January 1, 2001. 14. On Mamh 10, 2001, the Kingsboroughs left the residence at 14 Dewberry Court, Mechanicsburg, Pennsylvania at the insistence of the Frankfords. 15. The Frankfords have refused to return the $72,000.00 to the Kingsbomughs. 16. The Kingsboroughs are each able to live in a private residence. COUNT I BREACH OF CONTRACT April 26, t994 Agreement 17. Paragraphs one through sixteen above are incorporated heroin by reference. 18. All conditions precedent to the agreement have been fulfilled by the Kingsboroughs. 19. The Frankfords have breached the agreement by ejecting the Kingsboroughs from the residence at 14 Dewberry Court in violation of the express terms of the agreement. 20. The Kingsboroughs have sought a refund of the sums they paid the Fmnkfords pursuant to the agreement, and the Fmnkfords have refused to refund the payment. 3 WHEREFORE, Kingsboroughs demand judgment against the Frankfords for the sum of $72,000.00 plus interest, expenses and costs of suit. COUNT II UNJUST ENRICHMENT April 26, t994 Agreement 21. Paragraphs one through twenty above are incorporated herein by reference. 22. The Kingsboroughs paid $72,000.00 to the Frankfords pursuant to the terms of the agreement. 23. The Frankfords accepted $72,000.00 from the Kingsboroughs and have retained it and refused to repay it to the Kingsboroughs. 24. The Kingsboroughs have few assets remaining and are presently forced to live with their daughter and son-in-law, Joann K. Soulier and Daniel R. Soulier. 25. It is believed and therefore averred that the fair market value of 14 Dewberry Court has increased substantially since the Kingsboroughs payment of $72,000.00 towards the purchase of this home in September, 1994. 26. The Frankfords would be unjustly endched if they were permitted to keep the $72,000.00 paid to them by the Kingsboroughs. 4 WHEREFORE, in the alternative to Count I, Kingsboroughs mspec'dully request this Honorable Court enter a Decree creating a constructive trust in the ownership equity of 14 Dewberry Court, Mechanicsburg, PA for the benefit of the Kingsboroughs, and: a) award the Kingsboroughs two-fifths of the fair market value of 14 Dewberry Court, Mechanicsburg, Pennsylvania; or, b) award the Kingsbomughs, the sum of $72,000.00 plus interest, expenses and costs of suit. COUNT III QUANTUM MERUIT April 26, t994 Agreement 27. Paragraphs one through twenty-six above are incorporated herein by reference. 28. The Kingsbomu§hs paid $72,000.00 to the Frankfords pursuant to the terms of the agreement. 29. The Frankfords accepted $72,000.00 from the Kingsboroughs and have retained it and refused to repay it to the Kingsboroughs. 30. The Kingsboroughs have few assets remaining and are presently forced to live with their daughter and son-in-law, Joann K. Soulier and Daniel R. Soulier. 5 31. It is believed and therefore averred that the fair market value of 14 Dewberry Court has increased substantially since the Kingsboroughs payment of $72,000.00 towards the purchase of this home in September, 1994. 32. The Franldords would be unjustly enriched if they were permitted to keep the $72,000.00 paid to them by the Kingsboroughs. WHEREFORE, in the alternative to Count I, Kingsboroughs respectfully request this Honorable Court enter a Decree creating a constructive trust in the ownership equity of 14 Dewberry Court, Mechanicsburg, PA for the benefit of the Kingsboroughs, and: a) award the Kingsboroughs two-fifths of the fair market value of 14 Dewberry Court, Mechanicsburg, Pennsylvania; or, b) award the Kingsboroughs, the sum of $72,000.00 plus interest, expenses and costs of suit. COUNT IV BREACH OF CONTRACT i! 'oans :,! ~. Paragraphs one through thi~-two above are incorporated herein by reference. 34. During the time the Kingsboroughs resided with the Frankfords, the Frankfords, together or individually, borrowed sums of money from the Kingsboroughs which remain unpaid. 35. The loans mentioned in preceding paragraph were made orally and with no provision for interest or terms of repayment to the Kingsboroughs. 36. The loans were made to the Frankfords in the following amounts on the dates indicated: February 13, 1997 $1,000.00 Mamh 3, 1997 $5,000.00 May 18, 1997 $1,400.00 May 29, 1997 $5,000.00 July 14, 1997 $1,400.00 February 29, 2000 $3,500.00 37. The Frankfords have repaid $7,000.00 of the above sums. 38. At present, the Frankfords owe the Kingsboroughs $10,300.00 in connection with sums of money the Frankfords borrowed fTOm the Kingsboroughs during the time the parties resided with one another. WHEREFORE, the Kingsboroughs demand judgment against the Frankfords in the amount of $10,300.00 plus interest and costs of suit. COUNT V UNJUST ENRICHMENT Loans 39. Paragraphs one through thirty-eight above are incorporated herein by reference. 7 40. During the time the Kingsboroughs resided with the Frankfords, the Frankfords, together or individually, borrowed sums of money from the Kingsboroughs which remain unpaid. 41. The loans mentioned in preceding paragraph were made orally and with no provision for interest or terms of repayment to the Kingsboroughs. 42. At present, the Frankfords owe the Kingsboroughs $10,300.00 in connection with sums of money the Frankfords borrowed from the Kingsboroughs during the time the parties resided with one another. 43. The Frankfords would be unjustly enriched if they were permitted to return the sums borrowed from the Kingsboroughs. WHEREFORE, in the alternative to Count IV, the Kingsboroughs demand judgment against the Frankfords in the amount of $10,300.00 plus interest and costs of suit. COUNT VI QUANTUM MERUlT Loans 44. Paragraphs one through forty-three above ara incorporated herein by reference. 45. During the time the Kingsboroughs resided with the Frankfords, the Frankfords, together or individually, borrowed sums of money from the Kingsboroughs which remain unpaid. 8 46. The loans mentioned in preceding paragraph were made orally and with no provision for interest or terms of repayment to the Kingsboroughs. 47. At present, the Frankfords owe the Kingsboroughs $10,300.00 in connection with sums of money the Frankfords borrowed from the Kingsboroughs during the time the parties resided with one another. 48. The Frankfords would be unjustly enriched if they were permitted to return the sums borrowed from the Kingsboroughs. VVHEREFORE, in the alternative to Count IV, the Kingsboroughs demand judgment against the Frankfords in the amount of $10,300.00 plus interest and costs of suit. Respectfully submitted, O'BRIEN, B^RIC & SCHERER I.D. # 61974 17 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 Attorney for Plaintiffs ma$.dlr/genllt/kingsboroughlamended.com VERIFICATION I verify that the statements made in the foregoing Amended Complaint are true and correct. I understand that false statements heroin are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unswom falsification to authorities. ~ ×'../~ ~ ,.~L ' - - Waiter E. K~g~,boro,..ugh Janet L. ~ngsb~ro~ DATED: NOTE OF AGREEMENT This document represents an :q£eement between Gregory and Geneva Frankford and Walter and Janet Kingsborough. This agreement is binding on all parties in accordance with the following provisions unless mutually recinded by all parties. Gregory and Geneva have agreed to provide a home for Walter and Janet for as long as they are each able to live in a private residence. Due to Walter's physical condition, living quarters on the first floor ara required. To accommodate this, and ~ecause their current home is not suitable, Gregory and Geneva will build a new home. This home will be a Cape Cod design with a two bedroom Master Suite on the first floor for Walter and Janet's exclusive use. Walter and Janet will also have full access to all of the common areas in the hous~ with no restrictions. In exchange for this arrangement, Walter and Janet have agreed to apply $?2,000.00 from the sale of their current home towards the cost of the new home. This is approximately two fifths of the purchase price. Walter and Janet shall continue to he responsible for their personal debts and liabilities (private phone, car insurance, etc). They may also be asked to pay not more than two fifths of the common expenses (gas, electric, sewer, etc.) if needed. For legal purposes, they will not have part ownership of the real estate. In the event that Gregory and Geneva die before Walter and/or Janet, a minimum of two fifths of the value of the house/property shall be made available for their continued care. Details are described in Gregory and Geneva's Last Will and Testament. Signed: ~ Date: ~ Gen_eva L . FranRfoi~ Witness: [-~ ~- g~ ~an~ S. Soulier JANET L. KINGSBOROUGH and IN THE COURT OF COMMON PLEAS OF WALTER E. KINGSBOROUGH, CUMBERLAND COUNTY. PENNSYLVANIA Plaintiffs v. NO. 2001-2692 CIVIL TERM GENEVA L. FRANKFORD and CIVIL ACTION - LAW GREGORY J. FRANKFORD, : Defendants : JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Janet L. Kingsborough and Walter E. Kingsborough, Plaintiffs and Michael A. Scherer. Esquire 17 West South Street Carlisle. PA 17013 You are hereby notified that you have twenty (20) days in which to plead to the enclosed Preliminary Objections or a Default Judgment may be entered against you. SNELBAKER, BRENNEMAN & SPARE, P. C. Keith O. Brenneman, Esquire 44 West Main Street Meehanicsburg, PA 17055 (717) 697-8528 Attorneys for Defendants Geneva L. Franktbrd and Gregory J. Frankford Date: June 11, 2001 LAW OFFICES SN~LBAKER. BRENNEMAN IANET L. KINGSBOROUGH and : IN THE COURT OF COMMON PLEAS OF WALTER E. KINGSBOROUGH, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : : v. : NO. 2001-2692 CIVIL TERM : GENEVA L. FRANKFORD and CIVIL ACTION - LAW GREGORY J. FRANKFORD. Defendants JURY TRIAL DEMANDED DEFENDANTS~ PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT Defendants Geneva J. Frankford and Gregory L. Frankford, by Brenneman & Spare, P. C. submit the following Preliminary Objections to Plaintiffs' Complaint: i. MOTION TO STRIKE, A. Failure to Conform with Rule of Court (Counts II and IV) 1. Counts II and IV of Plaintiffs' Complaint each purport to set forth causes of action for unjust enrichment and quantum recruit. 2. Unjust enrichment and quantum meruit are separate and distinct legal bases for causes of action. 3. Pa.R.C.P. 1020(a) requires that each cause of action shall be stated in a separate count containing a demand for relief. 4. Both Counts II and IV of Plaintiffs' Complaint fail to conform to Pa.R.C.P. 1020(a). WHEREFORE, Defendants request this Court to strike Counts II and IV of Plaintiffs' Complaint pursuant to Pa.R.C.P. 1028(a)(2). SNELBAKER. BR~NN£MAN & $P~£ B. Failure to Conform with Rule of Court (Count IV) 5. Count IV of Plaintiffs' Complaint purports to set forth a cause of action against Defendants based on loans of money alleged to have been made by Plaintiffs to Defendants. 6. Specifically, Plaintiffs claim that there were oral "loans" made by Plaintiffs to Defendants with no provisions for interest or temps of repayment. (Complaint, Paragraph 28) 7. The purported failure by Defendants to pay Plaintiffs on any one loan made would give rise to a cause of action for breach of contract. 8. Pa.R.C.P. 1020(a) requires that each cause of action shall be stated in a separate counl containing a demand for relief. 9. By asserting a cause of action on the basis of breach of contract under Complaint Count IV for more than one loan. Plaintiffs are impermissibly joining more than one cause of action in one Count. 10. Count IV of Plaintiffs' Complaint fails to confom~ to Pa.R.C.P. 1020(a). WHEREFORE, Defendants request this Court to strike Count IV of Plaintiffs' Complaint pursuant to Pa.R.C.P. 1028(a)(2). C. Failure to Conform with Rule of Law (Count ii) I 1. Count I of Plaintiffs' Complaint purports to set forth a cause of action based upon the breach of an express written contract attached to Plaintiffs' Complaint as Exhibit A. 12. Count II of Plaintiffs' Complaint purports to set forth a cause of action upon claims L^w omens of unjust enrichment and quantum memit on the basis of the $72,000 Plaintiffs claim they paid SNELBAK£R. ~3RENNEMAN ~' SPAR~ -2- Defendants pursuant to the terms of the xvritten agreement. (Complaint, Paragraph 21 ) 13. As a matter of law, causes of action based upon unjust enrichment and quantum meruit are unavailable when the relationship of the parties is founded upon an express contract or written agreement. WHEREFORE. Defendants request this Court to strike Count Il of Plaintiffs' Complaint pursuant to Pa.R.C.P. 1028(a)(2). D. Failure to Comply with Rule of Law (Count IV) 14. Count III of Plaintiffs' Complaint purports to set forth a cause of action based upon breach of contract with respect to loans alleged to have been made by Plaintiffs to Defendants. 15. Count IV of Plaintiffs' Complaint purports to recover amounts loaned by Plaintiffs to Defendants based upon claims of unjust enrichment and quantum recruit. 16. For Plaintiff to maintain a cause of action for breach of contract under Count Ill separate from the claims raised in Count IV. an express oral contract must exist with respect to each loan upon which Plaintiffs claim damages of Defendants. 17. As a matter of law, causes of action based upon unjust enrichment and quantum meruit are unavailable when the relationship of the parties is founded upon an express contract or written agreement. WHEREFORE, Defendants request this Court to strike Count IV of Plaintiffs' Complaint pursuant to Pa.R.C.P. 1028(a)(2). ~RENNEMAN SPARE 11. DEMURRER. A. Count I - Breach of Contract, April 26, 1994 Agreement 18. Plaintiffs claim in Count I of their Complaint that Defendants breached the terms ora contract dated April 26, 1994 by ejecting Plaintiffs from the subject residence in violation of the express terms of the contract. (Complaint, Paragraph 18) 19. The term of the parties' agreement pertaining to Plaintiffs' continuing right to live at the subject residence provides as follows: Gregory and Geneva [Defendants] have agreed to provide a home for Walter and Janet [Plaintiffs] ~ they are each able to live in a private residence. (Complaint, Exhibit A. emphasis added) 20. Plaintiffs fail to aver in their Complaint that they are each able to live in a private residence. 21. If Plaintiffs are unable to live in a private residence, Plaintiffs, by the terms of their written agreement with Defendants, are unable to maintain a cause of action against Defendants for breaching the parties' contract. 22. Plaintiffs have failed to state a claim for breach of contract due to the absence ofany allegation in Plaintiffs' Complaint that Plaintiffs are each able to live in a private residence. WHEREFORE, Defendants request this Court to dismiss Count I of Plaintiffs' Complaint and enter judgment in their favor pursuant to Pa.R.C.P. 1028(a)(4). SNELBAKER. BR£NNEMAN · s.^.~ -4- B. Breach of Contract (Count !!1, Loans) 23. Count III of Plaintiffs' Complaint purports to set forth a cause of action based upon of contract with respect to loans alleged to have been made by Plaintiffs to Defendants. 24. Plaintiffs' Complaint fails to set forth any a/legations of fact describing how or when Defendants breached any one or more of the loan agreement or contracts with Plaintiffs. WHEREFORE, Defendants request this Court to dismiss Count III of Plaintiffs' Complaint and enter judgment in their favor pursuant to Pa.R.C.P. 1028(a)(4). Iii. MOTION FOR MORE SPECIFIC COMPLAINT PURSUANT TO Pa.R.C.P. 1028¢a}(3). (In the alternntive to LD. and II.B.) 25. The averments of Paragraphs 5.6 and 7. above, are incorporated by reference herein. 26. Plaintiffs fail to specify when each loan was made, the amount of each loan and the amount, if any, for each loan that remains unpaid. 27. Plaintiffs fail to allege whether the amount of $10,300.00 set forth in their Complaint represents an amount Plaintiffs claim are due them on one or more loans and if more than one loan, the amounts of each loan that comprise the total an~ount of $10.300.00. 28. More specific allegations concerning the dates, amounts and balances of each loan upon which Plaintiffs claim damages are essential for Defendants properly to respond and defend Count III. WHEREFORE. Defendants request this Court to order Plaintiffs to allege with more '~N£LBAKER. IRRENNEMAN & S~'ARE =5= specificity the dates, amounts and balances of each loan Plaintiffs claim they have made which remains due. SNELBAKER, BRENNEMAN & SPARE, P. C. Keith O. Brenneman, Esquire 44 W. Main Street Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Defendants Geneva L. Frankford and Gregory J. Frankford Date: June 11,2001 _CERTIFICATE OF SERVICE I. KEITH O. BRENNEMAN. ESQUIRE. hereby certify that I have on the below date caused a true and correct copy of the foregoing Preliminary Objections to be served upon the in the manner indicated below: FIRST CLASS MAIL, POSTAGE PREPAID, ADDRESSED AS FOLLOW:;: Michael A. Scherer. Esquire 17 West South Street Carlisle, PA 17013 ~eith O. Brenneman, Esquire SNELBAKER, BRENNEMAN & SPARE, P. C. 44 W. Main Street P. O. Box 318 Mechanicsburg, PA 17055 (717) 697~8528 Attorneys for Defendants Geneva L. Frankford Date: June 11, 2001 and Gregory J. Frankford LAW OF~CE$ SNELBAKER. BRENNEMAN JANET L. KINGSBOROUGH and : IN THE COURT OF COMMON PLEAS OF WALTER E. KINGSBOROUGH, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : v. NO. 2001-2692 CIVIL TERM GENEVA L. FRANKFORD and CIVIL ACTION - LAW GREGORY J. FRANKFORD, Defendants JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Janet L. Kingsborough and Walter E. Kingsborough, Plaintiffs and Michael A. Scherer, Esquire 17 West South Street Carlisle, PA 17013 You are hereby notified that you have twenty (20) days in which to plead to the enclosed New Matter or a Default Judgment may be entered against you. SNELBAKER, BRENNEMAN & SPARE, P. C. By: I~/~f~ Keith O. Brenneman, Esquire 44 West Main Street Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Defendants Geneva L. Frankford and Gregory J. Frankford Date: July 30, 2001 LAW OFFICES SNELBAKER. BRENNEMAN J~ SPARE IANET L. KINGSBOROUGH and : IN THE COURT OF COMMON PLEAS OF WALTER E. KINGSBOROUGH, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : : v. NO. 2001-2692 CIVIL TERM GENEVA L. FRANKFORD and CIVIL ACTION - LAW GREGORY J. FRANKFORD. Defendants JURY TRIAL DEMANDED DEFENDANTS' ANSWER WITH NEW MATTER TO PLAINTIFFS' AMENDED COMPLAINT Defendants Geneva L. Frankford and Gregory J. Frankford, by their attorneys, Snelbaker, Brenneman & Spare, P. C., submit the following Answer with New Matter in response to Plaintiffs' Amended Complaint: ANSWER 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted in part; denied in part. It is admitted that on April 26, 1994 the parties entered into a written agreement, a copy of which is attached to the Amended Complaint as "Exhibit A" (hereinafter the "Agreen~ent"). The Agreement, being in writing, speaks for itself; therefore, Plaintiffs' summary or characterization of the Agreement in Paragraph 4 of the Amended Complaint is denied. 5. Admitted. 6. Denied. It is denied that the Agreement sets forth the provisions as alleged in SNELBAK;;R. B.;nNEMA. Paragraph 6 of Plaintiffs' Complaint. The Agreement, being in writing, speaks for itself; therefore, Plaintiffs' summary or characterization of the Agreement in Paragraph 6 of the Amended Complaint is denied. 7. Denied. It is denied that the $72,000 payment from Plaintiffs to Defendants represented or was intended to represent two-fifths of the cost ora new house located at 14 Dewberry Court, Mechanicsburg. To the contrary, the aforesaid mount represented an amount necessary to reduce the principal required to finance the construction and/or purchase of a house required to accommodate the Plaintiffs, which would result in a monthly mortgage payment affordable to the Defendants based upon their financial circumstances. By way of further answer, Defendants' resulting monthly mortgage payment was higher than the monthly mortgage payment Defendants paid for their previous residence on Bonnybrook Road, Carlisle. 8. Admitted. 9. Admitted, with the qualification that Plaintiffs moved in with Defendants (and at that time Defendants' one son) in September 1994 at Defendants' residence at Bonnybrook Road at the time $72,000 was given to Defendants. 10. Admitted. 11. Admitted. 12. Denied. It is denied that during the period of time Plaintiffs resided with the Defendants, the Plaintiffs paid approximately two-fifths of the various charges for food and utility services which were supplied to the residence at 14 Dewben3t Court. To the contrary, the Plaintiffs paid less than thirty-three percent (33%) of applicable utility and food costs and expenses. By way of further response, the parties' shared expenses did not include real estate SNELBAKgR. -2- ~REI~N£MAN taxes, maintenance, improvements, insurance on the residence and wear and depreciation of furniture, furnishings and appliances, which expenditures and costs were incurred solely by the Defendants during the six year period the Plaintiffs' resided at 14 Dewberry Court. 13. Denied. It is denied that Defendants in May 2000 or at any other time advised Plaintiffs that the Plaintiffs would have to leave the residence at 14 Dewberry Court, Mechanicsburg on or before January 1,2001. To the contrary, Defendants have never advised Plaintiffs that they were to leave the residence by any specified date. By way of further answer, Defendm~ts did at one point advise Plaintiffs that Defendants would have to make arrangements to move from the residence if Plaintiff Walter Kingsborough would not wear a protective undergarment to prevent his waste from being deposited throughout the residence. The averments set forth in New Matter incorporated by reference herein in further answer to Paragraph 13 of Plaintiffs' Amended Complaint. 14. Admitted in part; denied in part. Although it is admitted only that that the Plaintiffs left the subject residence on March 10, 2001, it is denied that Defendants insisted that Plaintiffs leave on that date or any other specified date. By way of further answer, Plaintiffs were eventually requested to make other living arrangements since Plaintiffs ultimately refused the recommendations of the Cumberland Count Office of the Aging and a medical professional that Plaintiffs have competent, professional care in an assisted living environment. Further, Plaintiffs moved out only aRer Defendants made every effor~ possible and practical to assist Plaintiffs and provide for their care at 14 Dewberry Court. 15. Admitted, with the qualification that Plaintiffs have asked only for their money back SNELBAKER. and have not specifically demanded $72,000. By way of further answer, the averments set forth BRENNEMAN a S.ARE; -3- in New Matter are incorporated by reference herein. 16. Denied. It is denied that the Plaintiffs are each capable ofliving in private residences as contemplated in the parties' Agreement for the reasons set forth in New Matter, the averments of which are incorporated by reference herein. 17. The averments of Paragraph I through 16, inclusive, of this Answer are incorporated by reference herein in their entirety. 18. Denied. Paragraph 18 of Plaintiffs' Amended Complaint contains an unwarranted conclusion of law to which no response is required by the Defendants: therefore, same is deemed to be denied pursuant to Pa.R.C.P. 1029(d). 19. Denied. Paragraph 19 of Plaintiffs' Amended Complaint contains an unwarranted conclusion of law to which no response is required by the Defendants; therefore, same is deemed to be denied pursuant to Pa.R.C.P. 1029(d). To the extent a response is necessary, it is denied that Defendants have breached the Agreement or were in any way in violation of the express terms of the Agreement. It is further denied that that Defendants have at any time ejected the Plaintiffs from the residence at 14 Dewberry Court for the reasons set forth in the preceding Paragraphs of this Answer and the New Matter, the averments of which are incorporated by reference herein. 20. Admitted. The averments contained in Paragraph 15, above, are incorporated by reference herein. WHEREFORE, the Defendants request the Court to dismiss Plaintiffs' Amended Complaint and enter judgment in favor of the Defendants together with costs of this action. LAW OFFICES s,~^~,. 21. The averments of Paragraphs I through 20. inclusive, of this Answer are BRENNEMAN & S~=^R£ -3- incorporated by reference herein in their entirety. 22. Admitted. 23. Admitted in part; denied in pan. It is admitted only that the Defendants accepted $72.000 from the Plaintiffs and they have not paid that sum to the Plaintiffs upon Plaintiffs' request for their money back. It is denied that the sum noted has been retained by the Defendants. To the contrary, the $72.000 has been properly utilized by the Defendants as required and agreed to by the parties in their Agreement. 24. Denied. Aider reasonable investigation, Defendants are without sufficient information to form a belief as to the truth of the averment which characterizes the Plaintiffs' remaining assets as being "few"; therefore, same is denied and strict proof thereof demanded. By way of further answer, it is denied that the Plaintiffs are forced to live with their daughter and son-in*law. Mr. and Mrs. Soulier. To the contrary, it is believed and therefore averred that Plaintiffs qualify or are able to reside in an assisted living environment that will provide them with the competent and professional care that they need. By way of further answer, it was the Plaintiffs' mutual decision with Mr. and Mrs. Soulier that the Plaintiffs would reside with Mr. and Mrs. Soulier. 25. Denied. Aider reasonable investigation, the Defendants are without sufficient information to form a belief as to the truth of the averment of the characterization made by Plaintiffs that the fair market value of 14 Dewberry Court has "substantially" increased since September 1994; therefore, same is denied and strict proof thereof demanded. By way of further response, any increase in the fair market value of the property has occurred in whole or in pan by SNELBAKER. -4- BR£NN£MAN the Defendants making substantial improvements to the home for which no contribution was made by the Plaintiffs. 26. Denied. Paragraph 26 of Plaintiffs' Amended Complaint contains an unwarranted conclusion of law to which no response is required by the Defendants; therefore, same is deemed to be denied. By way of further response the averments of New Matter are incorporated by reference herein. WHEREFORE, the Defendants request the Court to dismiss Plaintiffs' Amended Complaint and enter judgment in favor of the Defendants together with costs of this action. 27. The averments of Paragraph 1 through 26. inclusive, of this Answer are incorporated herein in their entirety. 28. Admitted. 29. Denied. The averments of Paragraph 23 of this Answer are incorporated by reference herein. 30. Denied. The averments of Paragraph 24 of this Answer are incorporated by reference herein. 31. Denied. The averments of Paragraph 25 of this Answer are incorporated by reference herein. 32. Denied. The averments of Paragraph 26 of this Answer are incorporated by reference herein. Further, Count III of Plaintiffs~ Amended Complaint duplicates Count II of the Amended Complaint and should be stricken. WHEREFORE, the Defendants request the Court to dismiss Plaintiffs' Amended S.£LB^KE.. Complaint and enter judgment in favor of the Defendants together with costs of this action. BRENN~MAffq & Sr=A~£ -6- 33. Denied. The averments of Paragraphs I through 32, inclusive, of this Answer are incorporated by reference herein in their entirety. 34. Admitted with the qualification that the Plaintiffs have also made numerous loans to Plaintiffs' daughter and son-in-law, Mr. and Mrs. Soulier. which loans also remain unpaid as of March 2001 and for which Plaintiffs have not initiated legal action to collect. By way of further answer, although a balance exists on the loans made by the Plaintiffs to the Defendants, Defendants have made regularly monthly payments to Plaintiffs without any objection at any ime as to the amount being paid starting in March 2000. 35. Admitted, with the qualification that the same manner ofloans were made by the Plaintiffs to Mr. and Mrs. Soulier. 36. Admitted. 37. Denied. It is denied that the Frankfords have repaid $7,000.00 of the above sums. To the contrary, the Frankfords have repaid $7,300.00 of the above sums. By way of further answer, the Defendants unilaterally and without any request or demand by the Plaintiffs commenced regular monthly payments in March 2000 to Plaintiffs in the an~ount of $100.00, which monthly payments Plaintiffs continue to accept even after the initiation of this action by them against the Defendants. 38. It is denied that the Defendants owe the Plaintiffs $10,300.00. it is also denied, to the extent it is implied, that Defendants are in breach of any contract or agreement with respect to the loans made by the Plaintiffs to the Defendmtts. WHEREFORE, the Defendants request the Court to dismiss Plaintiffs~ Amended SNELBAK£R. '7- BRENNEMAN R, ~PARE Complaint and enter judgment in favor of the Defendants together with costs of this action. 39. The averments of Paragraphs I through 38, inclusive, of this Answer are incorporated by reference herein in their entirety. 40. The averments of Paragraph 34 of this Answer are incorporated by reference herein. 41. The averments of Paragraph 35 of this Answer are incorporated by reference herein. 42. Denied. The averments of Paragraph 38 of this Answer are incorporated by reference herein. 43. Denied. Paragraph 43 of Plaintiffs' Amended Complaint contains an unwarranted conclusion of law to which no response is required by the Defendants; therefore, same is deemed to be denied pursuant to Pa.R.C.P. 1029(d'). To the extent a response is necessary, it is denied that the Defendants would be unjustly enriched if they were permitted to return the sums borrowed from the Kingsboroughs. To the contrary, there would be no unjust enrichment if the sums borrowed were repaid. WHEREFORE, the Defendants request the Court to dismiss Plaintiffs' Amended Complaint and enter judgment in favor of the Defendants together with costs of this action. 44. The averments of Paragraphs I through 43, inclusive, of this Answer are incorporated by reference herein in their entirety. 45. Paragraph 35 of this Answer is incorporated by reference herein. 46. Paragraph 35 of this Answer is incorporated by reference herein. 47. Paragraph 38 of this Answer is incorporated by reference herein. 48. Denied. The averments of Paragraph 43 of this Answer are incorporated by SNELBAKER. reference herein with reference to Paragraph 48 of Plaintiffs' Amended Complaint. By way of BRENNEMAN SPARE -8- further answer, if the Defendants were permitted to return the sums borrowed from the Plaintiffs, there could be no unjust enrichment. Finally, Count VI of Plaintiffs' Amended Complaint should be stricken as duplicating Count V of the Amended Complaint. WHEREFORE, the Defendants request the Court to dismiss Plaintiffs' Amended Complaint and enter judgment in favor of the Defendants together with costs of this action. NEW MATTER 49. Plaintiffs are estopped from maintaining this action and the claims raised against the Defendants. 50. All actions taken by the Defendants with respect to the subject matter oftbe claims raised and the suit brought are justified. 5 I. Plaintiffs' Amended Complaint and each claim set forth therein fail to state a claim upon which relief may be granted. 52. Beginning in 1993, Plaintiff Janet Kingsborough began expressing to her family, including the Defendants, that Plaintiff Walter Kingsborough was becoming difficult for her to take care of and handle. 53. After discussions among the family members, which included Plaintiffs, Defendants and Mr. and Mrs. Soulier, the only solution agreed to be acceptable among them was for the Plaintiffs to move in with Defendants. 54. At the time it was agreed that Plaintiffs would move in with Defendants, Defendants were the owners ora residence on Bonnybrook Road in Carlisle, Pennsylvania, which residence SNEt. BAKER. was built in 1989 and subsequent thereto, had been substantially improved by Defendants in & S~,A~ -9- anticipation of permanently residing there and raising a family. 55. Prior to the discussion and understanding reached among the family as made reference to in Paragraph 53. above. Defendants had no intention of moving from the residence they had built in 1989. 56. Prior to Defendants' decision to construct the residence at 14 Dewberr~ Court, Mechanicsburg, Defendants explored the options of renovating their residence on Bonnybrook Road: however, their residence could not easily be modified to accommodate Plaintiffs and ifa separate addition were constructed for that purpose, the steps required for access would pose a danger and difficulty to Plaintiff Waiter Kingsborough who had difficulty with steps and with walking. 57. Prior to Defandants' decision to construct the residence at 14 Dewberry Court, Mechanicsburg, Defendants explored the option of locating and purchasing an existing residence that would accommodate the needs of the Plaintiffs. but discovered that such residences were rare and none were on the market in the general area. 58. After exploring the options described in Paragraphs 56 and 57. above, a decision was made by Defendants, with the knowledge and approval of the Plaintiffs. that Defendants would build a new residence in order to accommodate the Plaintiffs in furtherance of the family's understanding reached that the Plaintiffs would live with the Defendants. 59. Defendants sold their residence on Bonnybrook Road, where they were comfortable and established in the local community, in order to help and accommodate the Plaintiffs. 60. The residence constructed at 14 Dewberry Court, Mechanicsburg was built with a SNELaAK£R. first floor level designed to acconunodate a handicapped person with such features as oversized r~RENNEMAN SPARE -]0- doors, a handicap accessible shower and a two-bedroom master suite. 61. The design features made reference to in Paragraph 60, above, were required solely to accommodate Plaintiffs and were features that Defendants would not otherwise have or choose to have in a residence but for the need to accommodate Plaintiffs living with Defendants in order for Defendants to help and assist in Plaintiffs' care. 62. The decision to construct a residence in Mechanicsburg was made so that Plaintiff would be closer to other family members; namely Mr. and Mrs. Soulier, than they would be in the Boiling Springs/Carlisle Area. 63. Plaintiffs and Defendants mutually agreed that Plaintiffs would contribute $72,000.00 toward the cost of the new residence. 64. It was understood that the contribution made by Plaintiffs to Defendants toward the cost of the new residence would offset the additional cost of the new residence's special features for accommodating Plaintiffs, the cost and/or loss Defendants incurred in selling their residence on Bonnybrook Road and the additional mortgage payment and real estate taxes Defendants would be responsible to pay'. 65. Plaintiffs at no time have paid or made any contribution to the payment of the mortgage, real estate taxes or maintenance of the residence at 14 Dewberry Court, Mechanicsburg. 66. During the more than six (6) year period that Plaintiffs lived with Defendants at the residence at 14 Dewberry Court. Mechanicsburg. Plaintiffs' daughter, Defendant Geneva Frankford, did the majority of grocery shopping and cooking for the Plaintiffs and attended to the s.~c.^~.. -1 I- BRENNEMAN Plaintiffs' needs, particularly the needs of her father, Plaintiff Walter Kingsborough, on almost a daily basis. 67. During the more than six (6) year period that Plaintiffs lived with Defendants at the residence at 14 Dewberry Court, Mechanicsburg. Plaintiffs contributed no more than thirty-three percent of the utility and food expenses due to Defendants' second son being bom after the parties entered into the April 26. 1994 Agreement, thereby reducing Plaintiffs' combined proportionate share of the expenses to one-third. 68. For a seven month period beginning in September 1999, Joann Soulier and her three children moved into the residence at 14 Dewberry Court, Mechanicsburg due to the abusive behavior of her husband, Daniel Soulier. 69. During the seven month period made reference to in Paragraph 68, above, Plaintiffs' combined proportionate share of the mility and food expenses was reduced to one-tenth. 70. During the time that Plaintiffs resided at 14 Dewberry Court with Defendants and Defendants two children, Plaintiff Walter Kingsborough's health increasingly deteriorated. 71. During the time that Plaintiffs resided at 14 Dewberry Court, Plaintiff Janet Kingsborough's assistance and involvement with the care of her husband diminished. 72. During the time that Plaintiffs resided at 14 Dewberry Court, Plaintiff Janet Kingsborough became increasingly less concerned about her husband's condition and the effects of his actions and behavior. 73. During the time that Plaintiffs resided at 14 Dewberry Court. the ability of the Plaintiffs to live on their own, to assist each other in the daily tasks of living and to permit assistance by Defendants greatly diminished. -12- 74. During the time that Plaintiffs resided at 14 Dewberry Court, Plaintiff Walter Kingsborough increasingly urinated and defecated while fully dressed, causing his urine and his waste to be deposited throughout the first floor of the residence. 75. During the time that Plaintiffs resided at 14 Dewberry Court, Plaintiff Walter Kingsborough would not wear and/or refused to wear a protective undergarment on a regular basis to prevent his bodily waste from soiling himself and the residence. 76. During the time that Plaintiffs resided at 14 Dewberry Court, Plaintiff Janet Kingsborough frequently would not cheek her husband to see if he was wearing a protective undergarment, would not assist in ensuring he was wearing such a garment, would not insist upon his wearing such a garment and at times denied the need for him to wear such a garment in spite of the increase in frequency of the times her husband was soiling himself and the residence. 77. Despite the diligent efforts of the Defendants to prevent and assist in the prevention of Plaintiff Walter Kingsborough from soiling himself and the residence due to his failure to wear a protective undergarment, Plaintiff Walter Kingsborough soiled himself and the residence and tracked his urine and waste throughout the first floor of the residence in areas where Defendants' young children played. 78. During the time that Plaintiffs resided at 14 Dewberry Court, Plaintiff Janet Kingsborough increasing failed to cheek, confirm and assist Defendant Geneva Frankford in checking or confirming that Defendant Walter Kingsborough was or was not taking his prescribed medication. 79. During the time that Plaintiffs resided at 14 Dewberry Court, Plaintiff Janet SNELBAKER. - ] 3- Kingsborough gave her husband medication against the orders of his physician. 80. During the time that Plaintiffs resided at 14 Dewberry Court, Plaintiff Janet Kingsborough overmedicated her husband. 81. During the time that Plaintiffs resided at 14 Dewberry Court, Plaintiff Janet Kingsborough would leave medication out in view and easily accessible to the Defendants' children. 82. The actions and incidents made reference to in Paragraphs 79 through 81, above, occurred and continued despite repeated efforts by Defendants to monitor the storing and dispensing of Plaintiff Walter Kingsborough's medication and assist his wife in these matters. 83. During the time that Plaintiffs resided at 14 Dewberry Court, Plaintiff Janet Kingsborough would leave the gas stove burners on unattended, burn food she was preparing and leave the kitchen for extended periods of time while the stove was on. 84. Duringthe tirae that Plaintiffs resided at 14 Dewberry Court, PlaintiffWalter Kingsborough would get up during the night, cause noise and wake up Defendants and their children by entering their bedrooms. 85. During the time thai Plaintiffs resided at 14 Dewberry Court, PlaintiffWalter Kingsborough fell during the night, striking his head against the nightstand in his bedroom. Although Plaintiff Janet Kingsborough who was also on the first floor of the residence heard her husband fall, she did not get out of bed to assist him. 86. In the summer of 2000, Cumberland Count Office of the Aging after an evaluation of the parties' living arrangement recommended that the Plaintiffs be placed in an assisted SNELBAKER. living/nursing facility. F~REN NEIMAN SPARE -14- 87. In spite of the recommendation made by Cumberland County Office of the Aging, the Defendants were not ready to accept the recommendation and made arrangements for a visiting nurse and a visiting nurse's aid to come to the residence to assist in the care of Plaintiff Walter Kingsborough. 88. In December 2000, a geriatric specialist and physician treating PlaintiffWalter Kingsbomugh, along with the Social Worker from Cumberland County Office of the Aging, advised Defendants that they could not provide to the Plaintiffs the level of care the Plaintiffs required and recommended that Plaintiffs reside in an assisted living/nursing care facility. 89. In December 2000, the Plaintiffs, Defendants and Mrs. Soulier reached the conclusion that assisted living and/or nursing care were best for the Plaintiffs after the family met with a representative of Cumberland County Office of the Aging and Plaintiff Walter Kingsborough's physician. 90. For the reasons set forth in Paragraph 70 through 85, inclusive, above, and others, Plaintiffs posed a risk to their own health, safety and wellbeing. 91. For the reasons set forth in Paragraphs 70 through 85, inclusive, above, and others, Plaintiffs posed a risk to Defendants' health, safety and wellbeing. 92. For the reasons set forth in Paragraph 70 through 85, inclusive, above, and others, Plaintiffs posed a risk to the health, safety and wellbeing of the Defendants' two minor children. 93. For the reasons set forth in Paragraph 70 through 85, inclusive, above, and others, Plaintiffs' actions placed themselves, the Defendants and Defendants' children at risk for sickness SNELEIAKER. and bodily injury,. BRENNEMAN & $~'A~; -15- 94. For the reasons set forth in Paragraph 70 through 85. inclusive, above, and others. Plaintiffs' actions placed Plaintiffs' and Defendants' personal property and the Defendants' residence at risk for damage or destruction by fire. 95. For the reasons set forth in Paragraph 70 through 85. inclusive, above, and others. Plaintiffs created and maintained an unhealthy, unsafe and unsanitary environment for themselves. Defendants and Defendants' children. 96. The risks and conditions noted in Paragraphs 90 through 95, inclusive, above, continued and existed due to Defendants' best efforts to instruct, assist and aid Plaintiffs to eliminate and avoid such risks mad conditions. 97. For all the reasons set forth above, Plaintiffs and each of them, are unable to live in a private residence. 98. The circumstances, such as, but not limited to the actions, risks and conditions stated above, were in the contemplation of the parties to the April 26, 1994 Agreement as constituting the kinds or types of conditions that would render the Plaintiffs unable to live in a private residence. 99. Plaintiffs made loans of money to their daughter, Joann Soulier. and son-in-law, Daniel Soulier, without any terms of repayment. 100. Joann Soulier and Daniel Soulier have not made regular or monthly payments to Plaintiffs although they owe to Plaintiffs a sum in excess of $12,000.00. 101. Plaintiffs have made no demand upon or brought suit against Joann Soulier and Daniel Soulier to collect the outstanding loan balance due. SNELBAKER. 102. Prior to the initiation of this lawsuit, Plaintiffs never advised Defendants or claimed BRENNEMAN a s.^.~ -16- that Defendants were in violation of any term or agreement for the repayment of the loans. 103. Prior to the initiation of this lawsuit, Plaintiffs never asked or demanded that any money loaned to Defendants be repaid. SNELBAKER, BRENNEMAN & SPARE, P. C. Keith O. Brenneman, Esquire 44 W. Main Street Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Defendants Geneva L. Frankford and Gregory J. Frankford Date: July 30. 2001 ~NELBAKER. BRENNEMAN -17- VERIFICATION I verify that the statements made in the foregoing Answer with New Matter are true and correct. I understand that false statements herein are made subject to the penalties of 1 g Pa.C.S. Section 4909 relating to unsworn falsification to authorities. ~,/i ~z~/¢, .) ) . ~....-:' ~. ,,~,.. ~ .~c~..._~ ~,~. ~( - Geneva L. Frankford ~? Date: July 30. 2001 VERIFICATION I verify that the statements made in the foregoing Answer with New Matter are true and correct. I understand that false statements herein are made subject to the penalties of I g Pa.C.S. Section 4909 relating to unswom falsification to authorities. Date: July 30, 2001 LAW OFFICES SNELBAKER. BRENN£MAN ~ SPARE CERTIFICATE OF SERVICE I, KEITH O. BRENNEMAN, ESQUIRE, hereby certify that I have on the below date, caused a true and correct copy of the foregoing New Matter to be served upon the person and in the manner indicated below: FIRST CLASS MAIL, POSTAGE PREPAID, ADDRESSED AS FOLLOWS: Michael A. Scherer, Esquire 17 West South Street Carlisle, PA 17013 Keith O. Brenneman. Esquire SNELBAKER, BRENNEMAN & SPARE, P. C. 44 W. Main Street P. O. Box 318 Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Defendants Geneva L. Frankford and Gregory J. Frankford Date: July 30, 2001 ~AW OFFICES SNELBAKER. BRENNEMAN ~ SPARE JANET L. KINGSBOROUGH and: IN THE COURT OF COMMON PLEAS OF WALTER E. KINGSBOROUGH, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. No. 2001- ,~',2. CIVIL TERM GENEVA L FRANKFORD and GREGORY J. FRANKFORD, CIVIL ACTION - LAW Defendants PRAEClPE FOR LIS PENDENS TO THE PROTHONOTARY: Please index the above action as a Lis Pendens against the following real property: All that certain tract of real estate and improvements thereon located at 14 Dewberry Court, Mechanicsburg, Cumberland County, Pennsylvania 17055. Recorded in Deed Book 107 Page 1187 I hereby certify that this action affects the title to or other interest in the above- described real property. Respectfully submitted, O'BRIEN, BARIC & SCHERER DATE: ~'. I. ol ~ Michael A. Scherer, Esquire I.D. # 61974 17 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 I Illllll lilllllllllllllllll Ii IIll IIlltlllllilillltillllllil ' SHERIFF'S RETURN - REGULAR CASE NO: 2001-02692 p COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND K~INGS_~BOR~OOUGH J~ET L ET ~L VS FRANKFORD GENEVA L ET AL DAWN KELL _, Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within C~OMPLAINT & NOTICE was served Upon FRA-NKFORD GENEVA L the D_~EFEND_~T~ , at 0~017:37 HOURs, on the 2~lst day of May 2001 at 1__44 DEWBERRY COURT , _ . MECF~ICSBURG, PA 17055 by handing to G~ENEVA~LL. FRANKFORD a true and attested copy of C~OMPLAINT & NOTICE together with and at the Same time directing H~er attention to the contents thereof. Sheriff,s Costs: Docketing So ;knswers: Service 18.00 .~~/~ Affidavit 7.44 .00 Surcharge 10.00 ~ -¢ .00 35.44-- 05/22/2001 O'BRIEN, BlkRIC & SCHERER Sw°rn and Subscribed to before By: me this ~ day of -- (%Oo~ . Deputy Sheriff - ~r6thonota~ SHERIFF'S RETURN - REGUL/kR CASE NO: 2001-02692 p COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KINGSBOROUGH JANET L ET AL VS FRANKFORD GENEVA L ET AL DAWN KELL _, Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon FRANKFORD GREGORY j the D~EFENDANT , at ~017:3~ HOURs, on the 2~lst day of May , 2001 at 1_44 DEWBERRY COURT -- MECHANICSBURG, PA 17055 by handing to GENEVA L. FRANKFORD a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff,s Costs: Docketing So ~nSwers: Service 6.00 Affidavit .00 .00 Surcharge 10.00 ~ Thomas Kllne .00 16.00 05/22/2001 O'BRIEN, RARIc & SCHERER Sw°rn and Subscribed to before By: me this ~z. day of _ Deputy Sheriff __ -~l~ ~ ~. ~k~ol A.D. ! ~rothonotar¥ JANET L. KINGSBOROUGH and : IN THE COURT OF COMMON PLEAS OF WALTER E. KINGSBOROUGH, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : : v. : NO. 2001-2692 CIVIL TERM : GENEVA L. FRANKFORD and : CIVIL ACTION - LAW GREGORY J. FRANKFORD, : Defendants : JURY TRIAL DEMANDED .NOTICE TO RESPOND TO: Janet L. Kingsborough, Plaintiff and Michael A. Soberer, Esquire O'Brien, Baric & Scherer 17 West South Street Carlisle, PA 17013 NOTICE is hereby given that you have thirty (30) days after sen'ice of the attached to file a response in accordance with Pa.R.C.P. I035.3(a). Keith O. Brenneman, Esquire 44 West Main Street Mechanicsburg, pA 17055 ~, o,~,,:,== (717) 697-8528 Sne,..,^Ken. Attorneys for Defendants Bnenn£~nAt~ Geneva L. Frankford and Gregory J. Frankford aSt, An£ .~lay 30, 2002 JANET L. KINGSBOROUGH and : IN THE COURT OF COMMON PLEAS OF WALTER E. KINGSBOROUGH, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : : v. : NO. 2001-2692 CIVIL TERM GENEVA L. FRANKFORD and : CIVIL ACTION - LAW GREGORY J. FRANKFORD, : Defendants : JURY TRIAL DEMANDED DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT Defendants Geneva L. Frankford and Gregory J. Frankford by their attorneys, Snelbaker, Brenneman & Spare, P. C. submit this Motion For Partial Summary Judgment and in support thereof state the following: 1. Count IV of Plaintiffs' Complaint purports to set forth a cause of action against Defendants on the basis that Defendants breached an oral contract with Plaintiffs with respect to the loan of various sums of money made by Plaintiffs to Defendants. 2. Plaintiffs claim that various loans were made to the Defendants with no provisions for interest or terms of repayment. (See Amended Complaint, Paragraph 35). 3. Plaintiff Janet L. Kingsborough testified during her deposition on April 4, 2002 that all sums of money loaned were loaned by Plaintiff Janet L. Kingsborough to Defendant Geneva L. Frankford. (April 4, 2002 Depos~-tion of Janet Kingsborough (the "Kingsborough Deposition") pp. 116-120. Copies of pages 114 to 124 of the Deposition are attached hereto as "Exhibit A") 4. Plaintiff Janet L. Kingsborough testified that the sums loaned to Defendant Geneva L. ,~w o,,,c, Frankford were loaned with no repayment deadline and that amounts loaned could be repaid by & ~PARE the Defendants whenever they were able to repay the loans. (Kingsborough Deposition, pp. 117- 120) 5. Plaintiff Janet L. Kingsborough acknowledged that beginning March 2000, $100.00 each month, up to and includin~ March 2002. was paid to Janet L. Kingsborough by Defendants on the various loans that were made to Defendant Geneva L. Frankford. (Kingsborough Deposition, p. 120) 6. The payment orS100.00 by Defendants each month beginning March 2000 is acceptable to Plaintiff Janet Kingsborough. 7. Plaintiff Janet L. Kingsborough never advised Defendant Geneva L. Frankford that the loans had to be paid back in full or that more than $100.00 each month needed to be paid in repayment of' the loans. (Kingshorough Deposition, pp. 120-121). 8. P~aintiffJanet L. Kingsbomugh believes that Defendant Geneva L Frankford has abided by the agreement she had with her to pay the loaned money back. (Kingsborough Deposition, p. 12 I) 9. Plaintiffs nowhere in the Amended Complaint allege that the terms of any agreement to loan money to Defendant Geneva L. Frankford or the Defendants were breached. 10. In Count V of Plaintiffs' Amended Complaint, Plaintiffs purport to set forth a cause of action against the Defendants on .the basis of unjust enrichment with respect to the loans made reference in Count IV of Plaintiffs' Amended Complaint. 11. In Count VI of Plaintiffs' Amended Complaint, Plaintiffs purport to set forth a cause of action against the Defendants on the basis of quantum meruit with respect to the loans made ~,w o,,,¢zs reference in Count IV of Plaintiffs' Amended Complaint. 12. As a matter of law, causes of action based upon unjust enrichment and quantum memit are unavailable when the relationship of the parties is based upon an express contract or agreement. 13. Defendants do not contest the terms of the agreement reached between Plaintiff Janet L. Kingsborough and Defendant Geneva L. Frankford with respect to the loans that were made by Plaintiff Janet L. Kingsbomugh as testified to by her. 14. The pleadings in this action are closed. 15. As a matter of law, there is no genuine issue of any material fact as to any necessary cause of action or defense relating to the matters raised in Counts IV, V and VI of Plaintiffs' Amended Complaint which could be established by additional discovery or expert report. WHEREFORE, Defendants Geneva L. Frankford and Gregory J. Frankford request this Court to enter judgment in their favor with respect to the claims made in Counts IV, V and VI of Plaintiffs' Amended Complaint. SNELBAKER, BRENNEMAN & SPARE, P. C. l l Keith O. Brenneman, Esquire 44 W. Main Street Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Defendants Geneva L. Fmnkford and Gregory J. Fmnkford Date: ~/1~,,:~'_ ~0o~ VERIFICATION I verify that the statements made in the foregoing Motion are true and correct. I understand that false statementh herein are made subject to the penalties of 18 Pa.C.S. Section 4909 relating to unswom falsification to authorities. Geneva L. 1~~ Date: /~ ~$'/ VERIFICATION I verify that the statements made in the foregoing Motion are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4909 relating to unswom falsification to authorities· · ) '~regb~2J. Fra-nkford-5' ~._.~ · - Date: ~-~;~ ~. · 114 1 BY MR. BRENN~: 2 Q. I want you to turn to the last page. It's 3 marked W at the bottom. 4 A. (Complying.) 5 Q. Do you recognize that as a document that Geneva 6 or Greg prepared? 7 A. Yes. 8 Q. ~nud that document notes loans to them and 9 payments made on those loans. Is that correct? 10 A. Um-hum. 11 Q. And this is another copy of a document that I 12 received from your attorney. Does that document, to your 13 knowledge, accurately represent the amounts borrowed by 14 Greg or Geneva and the payments made by them up to January 15 30, 20017 16 A. I wasn't sure of how much they had borrowed, but 17 I know Geneva had paid me back $100 a month. And I haven't 18 figured out how long it had been and how much she had paid 19 in that $100 back. 20 Q. So you're s~ing you don't know if this 21 accurately represents the amount you loaned and the amounts 22 that they paid up to January 30, 20017 23 A. Yes, I wasn't sure how much they borrowed. 24 Q. Let me ask the question again. Perhaps I can 25 ask it a different way. Do you believe this correctly EXNIBIT A 115 1 represents the -- 2 A. Yes. 3 Q. -- amounts that were loaned to them and the 4 amounts that they paid as of January 30, 20017 5 A. Yes. 6 Q. Were you given a copy of this document by either 7 of them? $ A. No. 9 Q. How did you get this document? 10 A. I don't remember that I had that. 11 Q. Did you keep any records of the amount of money 12 that was loaned to them? 13 A. No. 14 Q. Did you keep any records of the amount of money 15 that were paid to you? 16 A. No. 17 Q. But you believe this record to be correct as of 18 that date. Is that correct? 19 A. Yes. Geneva worked for the Navy Depot all these 20 years, and she was use~ to figures, although I had my own 21 business and my figures. So I relied on them to do the 22 figuring and all that work that needed to be done. 23 Q. On that document marked W at the bottom, Exhibit 24 2, there's a date of February 13, 1997. It's the first 25 date at the top and it says, Borrowed $1,000. Do you see 116 1 that? 2 A. Um-hum. 3 Q. Do you know to whom that money was loaned, or 4 put another way, who borrowed it? 5 A. I imagine -- Geneva, I imagine. 6 Q. Do you remember what that was for? 7 A. No. 8 Q. And who agreed to loan her that amount of money, 9 was that you? 10 A. Yes. 11 Q. And what understanding did you have with her 12 with respect to when that money would be paid back? 13 A. Whenever they could pay it back. There was no 14 pressure. 15 Q. There was no pressure or a deadline. Is that 16 correct? 17 A. Right. 18 Q. The next date has March 3, 1997 and it shows 19 $5,000 was borrowed. Do you see that? 20 A. Um-hum. 21 Q. And was that a sum that was borrowed by Geneva? 22 A. Yes. 23 Q. And do you know what that amount was for? 24 A. No, I have no idea. I don't remember now. I 25 don't know if it was for the camper or what. I don't know. 117 i Q. Are you the one that approved the fact that she 2 could borrow that money? 3 A. Yes. 4 Q. And what was your understanding with her as to 5 when that amount would be paid back? 6 A. The same as with all the payments, whenever they 7 could. 8 Q. There was no deadline. It was whenever they 9 could. Is that correct? 10 A. Right. 11 Q. I see there was a payment made in May '97 of 12 5,600. Is that correct? 13 A. Yes. 14 Q. Now, underneath that there's a date of May 18, 15 1997 and $1,400 was borrowed. Do you see that? 16 A. Yes. 17 Q. And was that $1,400 that Geneva borrowed? 18 A. Yes, she borrowed -- she took care of all this 19 work. Greg, I don't remember him borrowing anything. 20 Geneva did all the paperwork. 21 Q. And do you recall what that $1,400 was borrowed 22 for? 23 A. No, I don't. 24 Q. And what understanding did you have with Geneva 25 as to when that should be paid back? 118 1 A. Just like I said with the other ones, whenever 2 they could. 3 Q. With no deadline. Is that correct? 4 A. No, no deadline. 5 Q. Underneath that, May 29th, 1997, $5,000 was 6 borrowed. 7 A. Um-hum. 8 Q. And Geneva borrowed that. Is that correct? 9 A. Um-hum. 10 Q. And that amount, do you know what that was 11 borrowed for? 12 A. No, I don't. I was just very lenient with the 13 money because I appreciated their help in being there. 14 Q. That $5,000, that's something you approved to 15 loan to her. Is that correct? 16 A. Yes. 17 Q. And the same with the $1,400 from May 18, 1997, 18 you approved that? 19 A. Right. 20 Q. Walter didn~'t have any say in that? 21 A. No. 22 Q. What understanding did you have with her about 23 paying back the $5,000? 24 A. Same as -- yes. 25 Q. Same as before with the other amounts? 119 1 A. Right. 2 Q. After that there's two amounts, one for $1,400, 3 July of 1997. Do you see that? 4 A. Yes, um-hum. 5 Q. That's an amount that Geneva borrowed from you. 6 Is that correct? 7 A. Yes. 8 Q. /%nd you're the one that approved that amount? 9 A. Yes. 10 Q. Do you know what that was used for? 11 A. No, I don't. Some of them were campers. I 12 really don't know what it was. 13 Q. What understanding did you have with her as to .14 when that would be repaid? 15 A. Whenever they could. The same as the other 16 ones, no deadline. 17 Q. Next one is February 29, 2000, $3,500. Now 18 there is a notation there, it says loan for Matthew's 19 braces. Do you see that? 20 A. Yes. 21 Q. Now, is that accurate, that's what the purpose 22 of that loan was for? 23 A. Um-hum. 24 Q. Is that something Geneva asked? 25 A. Yes. 120 1 Q. Did you ever say to her that you would give that 2 to her as a gift as opposed to a loan? 3 A. No. 4 Q. You're the one that approved that loan to her. 5 Is that correct? 6 A. Yes. 7 Q. And what was your understanding as to when that 8 would be repaid? 9 A. The same as whenever they could. No deadline. 10 Q. Now, it appears that beginning in March of 2000, 11 the month after that $3,500 loan was given to Geneva, $100 12 was paid? 13 A. Um-hum. 14 Q. And thereafter, at least up to this document up 15 to January 11, 2001, they paid you $100. Is that correct? 16 A. Yes. She's been paying, I just got a check from 17 her about a week ago. 18 Q. So after January 11, 2001, Geneva's continued to 19 pay you on a monthly basis $1007 .. 20 A. Um-hum. 21 Q. Is that acceptable to you? 22 A. Yes. 23 Q. Now, did you ever tell Geneva that the amounts 24 that you had loaned to her had to be paid back in full? 25 A. I never said how or when. That was the 121 1 agreement they would pay them back. 2 Q. And they're doing that. Is that correct? 3 A. For the braces, yeah. 4 Q. Well, aren't they as well paying back the other 5 loans too? 6 A. I would appreciate it if they could. I don't 7 know what to say. 8 Q. Did you ever ask her to make -- 9 A. No. 10 Q. -- more of a payment than $1007 11 A. No. 12 Q. Do you feel that she's abided by the agreement 13 that you had with her to pay this money back? 14 A. Quote it again. 15 Q. Do you believe she's abided by the agreement 16 that you had with her to pay it back, that is to pay it 17 back when she's able? 18 A. Yes. 19 Q. Do you know if Walter ever requested that loans 20 be paid back in full?" 21 A. Yes, he had asked Greg several times, three 22 times I remember. Greg, when are you going to pay us the 23 money back. And Greg says, I don't owe you anything. 24 Q. Well you just indicated that you're the one, not 25 Walter, that loaned the money to Geneva -- 122 1 A. Yes. 2 Q. -- not Greg? 3 A. But he knew -- yes. But Walter knew that I was 4 loaning them the money. He was always the one that was in 5 charge of financing when he was capable of doing it. 6 Q. Was Walter capable of being in charge of 7 finances in 2000? 8 A. No. 9 Q. Was he capable of being in charge of finances in 10 19997 11 A. No. 12 Q. 19987 13 A. Huh-uh. 14 Q. '97? 15 A. No. 16 Q. '96? 17 A. No. 18 Q. '95? 19 A. There was times when he understood and could 20 reason. It would vary'~n his condition. So I can't really 21 say when. 22 Q. So you're not sure about 19957 23 A. No, I don't know. 24 Q. Were you aware that Walter was going to ask Greg 25 to pay back the loans? 123 i A. Yes. Because he realized we didn't have that 2 much of an income. 3 Q. Well, you had not asked Geneva to pay back the 4 loans at any time, did you? 5 A. No, only when they could. 6 Q. And you believed that she was doing that. Is 7 that correct? 8 A. Yeah. 9 Q. And it's your understanding that Walter never 10 agreed to loan the money. You're the one that agreed to 11 loan the money? 12 A. Yeah. Because he just couldn't reason at times 13 that they needed, or he would give them an argument why 14 they needed it or whatever. So she dealt with me. 15 Q. But you'd agree with me that Walter wasn't aware 16 of the terms of the understanding that you had with Geneva? 17 A. Yeah. 18 Q. You say he was not aware? 19 A. At times he was not aware. Sometimes he 20 understood it quite welk and there was other times he was 21 all mixed up that she would have to explain to him what was 22 going on and what was happening. 23 Q. And did you explain to Walter -- 24 A. I couldn't. 25 Q. -- what was going on and what was happening? 124 1 A. I couldn't get through to him. He wouldn't 2 listen to me. 3 Q. So you let her do that? 4 A. Yeah, right. 5 Q. Now you also made loans to Joann and Dan. Is 6 that correct? 7 A. Yes. 8 Q. I want you to turn to Exhibit 2, the page that's 9 marked G at the bottom. 10 A. (Complying.) 11 Q. The one that says G, I'm sorry, not V. 12 A. I'm sorry. 13 Q. Do you recognize that document as being one 14 you've seen before today? 15 A. I don't remember seeing this one, no. 16 Q. Does your handwriting appear on that document in 17 any location? 18 A. I wrote Greg and Geneva down here, and the 19 figures on the bottom. 20 Q. The figures'~eing 462.18, and then it says 21 7/2/99? 22 A. Yeah. 23 Q. It says Joann and Dan for car. 24 A. Um-hum. 25 Q. That's your handwriting? CERTIFICATE OF SERVICE I, KEITH O. BRENNEMAN, ESQUIRE, hereby certify that ! have on the below date, caused a true and correct copy of the foregoing Motion for Partial Summary Judgment to be served upon the person and in the manner indicated below: FIRST CLASS MAIL, POSTAGE PREPAID, ADDRESSED AS FOLLOWS: Michael A. Scherer. Esquire O'Brien. Baric & Scherer 17 West South Street Carlisle, PA 17013 Keith O. Brenneman. Esquire SNELBAKER, BRENNEMAN & SPARE, P. C. 44 W. Main Street P. O. Box 318 · Mechanicsburg. PA 17055 (717) 697-8528 Attorneys for Defendants Date: May 30, 2002 SPARE JANET L. KINGSBOROUGH and : IN THE COURT OF COMMON PLEAS OF WALTER E. KINGSBOROUGH, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : NO. 2001-2692 CIVIL TERM : GENEVA L. FRANKFORD and : CIVIL ACTION - LAW GREGORY j. FRANKFORD. : Defendants : JURY TRIAL DEMANDED MOTION TO STRIKE LIS PENDENS Defendants Gregory J. Frankford and Geneva L. Frankford, by their attorneys, Snelbaker, & Spare, P. C., submit this Motion to Strike Lis Pendens and in support thereof state Ihe following: 1. Plaintiffs Walter E. Kingsborough and Janet L. Kingsborough initiated this action at [aw by Complaint filed on May 3, 2001. 2. Plaintiffs filed an Amended Complaint containing six (6) Counts on July 10, 2001. 3. Plaintiffs claim in Count I of their Amended Complaint that Defendants breached the !erms of an April 26, 1994 written agreement concerning a financial contribution made bv Plaintiffs to Defendants for the construction of a new home that would provide Plaintiffs living accommodations with Defendants and Defendants' children. A true and correct copy of the aforementioned April 26, 1994 agreement (the "Agreement") is attached hereto and incorporated by reference herein as "Exhibit A". 4. In the alternative to Count I, Plaintiffs in Counts II and Ill of the Amended Complaint raise claims of unjust enrichment and quantum recruit, respectively, with respect to the funds :hey gave Defendants. ~^w o~crs 5. In Count IV ofthe Amended Complaint, Plaintiffs claim e~eNNeblAN the.Defendants owe the sum of $10,300.00 representing various amounts loaned by Plaintiffs to Defendants. Counts V and VI, in the alternative to Count IV, raise claims of unjust enrichment and quantum meruit with respect to the loans made. 6. On May 3, 2001 Plaintifffiled a Prae¢ipe for Lis Pendens in this action, directing the Prothonotary to index this action as a lis pendens against the property owned by Defendants located at 14 Dewberry Court, Mechanicsburg (the "Property"). 7. The lis pendens was not served upon Defendants with the Complaint or otherwise and Defendants had no notice or knowledge of the lis pendens until June 2003. when the matter arose in a title search done as Defendants attempted to refinance their mortgage on the Property. 8. Plaintiffs, through their counsel, have been asked to remove the lis pendens but have refused to do so. 9. The Property at all times has been titled in only Defendants' names. 10. The title to the Property is not at issue in this action. 11. Plaintiffs. who pled the ~'itten Agreement (Exhibit A hereto) upon which their claim of breach of contract relies, specifically agreed that for "legal purposes, they will not have par~ ownership of the real estate" (the Property)..See Exhibit A hereto. 12. As a matter of law. a lis pendens has no application except in cases involving the adjudication of rights in specific property. 13. Title or specific rights in the Property are not being litigated; rather, Plaintiffs claim only economic loss and damages in each of the six Counts they raise. 14. Although in Count II of Plaintiffs' Amended Complaint, Plaintiffs request the Court L^w oF~,c~s to "create a constructive trust in the ownership equity" of the Property for the award of damages. SNELBAKER. ~RENNEMAN & s~,^nE there is no cognizable legal or jurisdictional basis for such relief and the filing of the lis pendens does not elevate a request for a constructive trust to a request for an adjudication on the merits of rights in the Property. 15. Plaintiffs' filing of the lis pendens has prevented Defendants from refinancing their current mortgage and jeopardizes their ability to save substantial loan interest at a time when mortgage rates are favorable and at historically Iow levels. 16. As a matter of law. Plaintiffs are not entitled to have the action indexed as a/is pendens against the Property. WHEREFORE. Defendants Gregory and Geneva Frankford request this Court to issue an Order striking the Lis Pendens filed in this action on May 3, 2001. SNELBAKER. BRENNEMAN & SPARE, P. C. Keith O. Brenneman. Esquire 44 W. Main Street Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Defendants Gregory J. Frankford and Geneva L. Frankford August 28, 2003 SNELBAKER. BRENNEMAN SPARE -3- This document represents an ~greement between Gregory and Gene~a Fran~£ord and Walter and Janet Kingsbo~ough.~ This agreement is bind.~ng on all parties in accordance with the following provisions unless mutually reclnded bY all parties. G~egory and Geneva have agreed to provide a home for Walter'i. and Janet for as long as they ar~ each able to l~ve in a riva" residence. Due to Walter,? physical condition, living qu~ters on the first floor ara required. To accommodate this an because their current home is not suitable, Gregory a~d d Geneva will build a new home. This.home w~ll be a Cape Cod design with ~ two bedroom. Master Suite on the first floor for Walter and Janet's exclusive use. Walter an~ Janet will also have ~ul} access,to all of the common areas in the house with restrictions, no In exchange for this arrangement, Wal~er and Janet have agreed to apply $72,000.00 from the sale of their current home towards the cost. cf the.new home. This is approximately two fifths of the purcnas? price. Walter and Janet shall continu? ~o be . responsible for their personal debts and liabilities (private phone, car insu~ance, etc). They ~a~ also be asked to p~y not more than two.fifths of the common expenses (gas, e}ectrlc, ~,.., sewer, etc.).lf needed. For legal purposes, they will not have ' part ownership of the real estate. In the ev6~t that Gregory and Geneva die before Walter and/or Janet, a minimum of two fifths of the value of the house/property ~ha11.be made available for their continued care. Details are escrlbed in Gregory and Geneva's Last Will and Testament. signed: Date: Geneva L. Frardcfo~ W~tness: ~-~6-ff ~aniel R. Sou ~/~oann. $. Soulier VERIFICATION I verify that the statements made in the foregoing Motion are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4909 relating to unswom falsification to authorities. Geneva L. Frankforii ~ Date: Auguaf.. 28, 2003 VERIFICATION I verify that the statements made in the foregoing Motion are true and correct. I ~nderstand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4909 relating to unswom falsification to authorities. Sate: SNELBAKER. BRENNEMAN SPARE CERTIFICATE OF SERVICE I, KEITH O. BRENNEMAN, ESQUIRE. hereby certify that I have on the below date, caused a true and correct copy of the foregoing Motion to be served upon the person and in the manner indicated below: FIRST CLASS MAIL, POSTAGE PREPAID, ADDRESSED AS FOLLOWS: Michael A. Scherer, Esquire O'Brien, Baric & Scherer 17 West South Street Carlisle, PA 17013 Keith O. Brenneman, Esquire SNELBAKER, BRENNEMAN & SPARE, P. C. 44 W. Main Street P. O. Box 318 Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Defendants Geneva L. Frankford and Gregory J. Frankford Date: September 2, 2003 SNELBAKER. BRENNEMAN SPARE L. KINGSBOROUGH and : IN THE COURT OF COMMON PLEAS OF WALTER E. KINGSBOROUGH, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : : V. : NO. 2001-2692 CIVIL TERM : A L. FRANKFORD and : CIVIL ACTION - LAW GREGORY J. FRANKFORD. : Defendants : JURY TRIAL DEMANDED AND NOW. this ~'~ · day of ~ ,2003, upon consideration of Motion to Strike Lis Pendens. it is hereby ORDERED that the lis pendens filed in this action on May 3, 2001 with respect to the property at 14 Dewberry Court. Mechanicsburg. STRICKEN. LAW OFFICES SINELBAKER. JANET L. KINGSBOROUGH and: IN THE COURT OF COMMON PLEAS OF WALTER E. KINGSBOROUGH, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. No. 2001-2692 CIVIL TERM GENEVA L. FRANKFORD and GREGORY J. FRANKFORD, CIVIL ACTION - LAW Defendants JURY TRIAL DEMANDED tA_ ORDER OF COURT AND NOW, this ~..~l~y of September, 2003, upon consideration of the Plaintiff's Answer to Defendants' Motion to Strike Lis Pendens, it is hereby Ordered that the Lis Pendens with respect to the property at 14 Dewberry Court, Mechanicsburg, Pennsylvania is REINSTATED, and the matter shall be listed by either party to be heard at a future argument court. By the Court, Michael A. Scherer, Esquire O'Brien, Baric & Scherer 17 West South Street Carlisle, Pennsylvania 17013 Keith O. Brenneman, Esquire Snelbaker, Brenneman & Spare 44 West Main Street Mechanicsburg, Pennsylvania 17055 JANET L. KINGSBOROUGH and: IN THE COURT OF COMMON PLEAS OF WALTER E. KINGSBOROUGH, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. No. 2001-2692 CIVIL TERM GENEVA L. FRANKFORD and GREGORY J. FRANKFORD, CIVIL ACTION - LAW Defendants JURY TRIAL DEMANDED PLAINTIFF'S ANSWER TO DEFENDANT'S MOTION TO STRIKE LIS PENDENR AND NOW, comes the Plaintiff, Janet L. Kingsborough, by and through her attorney, Michael A. Scherer, Esquire, and responds to the Defendants' Motion to Strike Lis Pendens as follows: 1. - 6. Admitted. 7. Admitted. Plaintiff was unaware that the lis pendens had not been served upon Defendants until Defendants brought it to Plaintiff's attention in connection with Defendants' efforts to refinance their mortgage. 8. - 9. Admitted. 10. Denied, as more fully set forth in the New Matter, below. 11. Admitted. By way of further Answer, the Note of Agreement speaks for itself, and the interpretation of the language of that document will be a question of fact for the jury. 12. Admitted. 13. Denied, as more fully set forth in the New Matter, below. 14. Denied. The prayer for a constructive trust allows Plaintiff to lodge a lis pendens relative to the real estate in question. 15. Admitted in part and denied in part. Admitted that Defendants' cannot refinance, but Plaintiff does not know how much interest Defendant may save. 16. Denied. 17. Paragraphs one through sixteen above are incorporated herein. 18. Plaintiff gave Defendants' $72,000.00 as set forth in the "Note of Agreement" which is attached to Defendants' Motion as "Exhibit A." 19. Plaintiff's $72,000.00 was to be used by Defendants' "towards the cost of the new home" pursuant to the Note of Agreement. 20. As such, Plaintiff directly contributed to the purchase of Defendants' home and the Note of Agreement provides that the Defendants' "agreed to provide a home for (Plaintiff)..." 21. Plaintiff has included in her Complaint at Count II an equitable claim for unjust enrichment/quantum meruit wherein Plaintiff prays for a constructive trust in the ownership of 14 Dewberry Court, Mechanicsburg, Pennsylvania. 22. Plaintiff has made a claim raising the issue of ownership and title to the subject property, and a lis pendens was appropriately filed in this case. 23. Defendants' attempted to refinance their mortgage recently and in connection therewith sought to increase the indebtedness on the property and remove in excess of $25,000.00 in cash from the equity in the subject property. 24. Plaintiff is 76 years old believes the ownership interest which she seeks to prove she has in the subject property will be lost if the Defendants are permitted to remove the lis pendens, refinance the mortgage and increase the debt on the property. ' 25. Plaintiff does not object to Defendants' refinancing the property provided the current indebtedness is not increased. Respectfully submitted, O'BRIEN, BARIC & SCHERER Micha A Scherer, Esquire I.D. # 61974 17 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 mas.dlr/genlPJkingsbomughllispendens.ans VERIFICATION The statements in the foregoing Plaintiff's Answer To Defendant's Motion To Strike Lis Pendens are based upon information which has been assembled by my attorney in this litigation. The language of the statements is not my own. I have read the statements; and to the extent that they are based upon information which I have given to my counsel, they 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. § 4904 relating to unsworn falsifications to authorities. Janet L. l~gsb~ro'ugh¥' -- CERTIFICATE OF SERVICF I hereby certify that on September 18, 2003, I, Jennifer S. Lindsay, secretary to Michael A. Scherer, Esquire did serve a copy of Plaintiff's Answer To Defendant's Motion To Strike Lis Pendens, by flint class U.S. mail, postage prepaid, to the party listed below, as follows: Keith O. Brenneman, Esquire Snelbaker, Brenneman & Spare, P.C. 44 West Main Street Mechanicsburg, Pennsylvania 17055 ~ J~:~ife~tjLindsay ~u~PE FOR L~STTNG CASE FOR ARGUNENT ?O ~E P~O~ONOTAR~ OF ~ERL~D CAPTZON OF CASE ~ .... J~E~ L. K~NGSBOROUGH and W~ER E. K~NGSBORoUGH~ vs. ( P/a/nt/2f ) GENEVA L. FRANKFORD and GREGORY j. FRANKFORD~ No. 2001~2692 C/v// Term I. S~te matter to be az~ued (i.e., P/~/nt/~f,s m~t/~m ~ ~ ~ ~ ~t, e~.): Defendants, Motion For Partial S~ry Jud~ent (a) f~ ~f: Michael A. Scherer ~: 17 W. South Street Carlisle, PA (b) ~ ~t: Keith O. Brenn~n ~: 44 W. Nain Street Mechanicsburg, PA 4. Argument Court Date: August 28, 2002 I~tecl: July 8, 2002 ~ Attorney for Defendants JANET L. KINGSBOROUGH and ' IN THE COURT OF COMMON PLEAS WALTER E. KINGSBOROUGH, : OF CUMBERLAND COUNTY, Plaintiffs ' PENNSYLVANIA V. : NO. 2001-2692 CIVIL TERM GENEVA L. FRANKFORD and : CIVIL ACTION -. LAW GREGORY j. FRANKFORD, Defendants : JURY TRIAL REQUESTED In Re'DEFENDANTS, MOTION FOR PARTIAL SUMMARY JUDGMENT Before HOFFER p.j. OLER J. and~ O~RDER OF COURT And now, November 25, 2002, after careful consideration of the briefs and arguments of counsel, it is hereby ordered that defendants' motion for partial summary judgment is denied .~ By the Court, Michael A. Scherer, Esquire p.j. Keith O. Brenneman, Esquire ~,/,~., '//-~,_.o~ 'The standard for summary judgment in Pennsylvania is well established. Summary judgment is granted properly when the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Pa. R.C.P. 1035(b). The record must be viewed in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. McConnau he v. Bid . Corn onents Inc. 536 Pa. 95, 98, 637 A.2d 1331, 1333 (1994) citing Marks v. Tasman, 527 Pa. ' 132, 135, 589 A.2d 205, 206 (1991). Because there are genuine issues of material fact yet to be resolved in this case, the motion for summary judgment is denied. ~'~u~c~pE FOR L~ST~NG ~ASE FOR TO THE PROTHONOTARy OF CUMBERLAND COUNTY: CA~oN OF CASE ~ - J~ET L. KINGSBoROUGH and W~TER E. K~NGSBOROUGH, GENEVA L. FRANKFORD and GREGORY j. FRANKFoRD, ( ~fen~ant ) No. 2692 C.%vi% _ ~l~ ~2001 1. State mmtte~ to be azgue~ (i.e., ~t~f's ~ ~ ~ ~, ~t's ~ ~ ~,~t, ~. ): Motion to Strike Lis Pendens (e) ~ ?A~nt~f: Michael A. Scherer, Esquire ~: 17 W. South Street Carlisle, PA 17013 (b) ~ ~: Keith O. Brenn~n, Esquire ~: 44 W. ~in Street Mechanicsburg, PA 17055 4. Arg~ent~Date: October 22, 2003 Dated: September 3, 2003 AtL~,l=y fQr Defendants JANET L. KINGSBOROUGH and : IN THE COURT OF COMMON PLEAS OF WALTER E. KINGSBOROUGH. : CUMBERLAND COUNTY. PENNSYLVANIA Plaintiffs : v. : NO. 2001-2692 CIVIL TERM GENEVA L. FRANKFORD and CIVIL ACTION - LAW GREGORY J. FRANKFORD, Defendants JURY TRIAL DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009 ?? As a prerequisite to service ora subpoena for documents and things pursuant to Rule 4009.22. the undersigned certifies that (1) a notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served, ' (2) a copy of the notice of intent, including the proposed subpoena, is attached to this certificate, (3) no objection to the subpoena has been received, and (4) the subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. Date: June 1.0, 2002 ~ Keith O. Brenneman, Esquire Attorney ID//47077 44 W. Main Street Mechanicsburg, PA 17055 (717) 69%8528 Attorney for Defendants Geneva L. Frankford and ~, o~,~o Gregory J. Frankford JANET L. KINGSBOROUGH and : IN THE COURT OF COMMON PLEAS OF WALTER E. KINGSBOROUGH, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : : v. : NO. 2001-2692 CIVIL TERM : GENEVA L. FRANKFORD and : CIVIL ACTION - LAW GREGORY J. FRANKFORD, : Defendants : JURY TRIAL DEMANDED .NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCI' DOCUMENTS AND THINGS FOR DISCOVERY pURSUANT TO RULE 4009.2 I Defendants Geneva L. Frankford and Gregoq,' J. Frankford intend to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made thc subpoena may be served. SNELBAKER. BRENNEMAN & SPARE, P. C. Date: May 16, 2002 By: I~--~/~~ Keith O. Brenneman, Esquire 44 W. Main Street Mechaniesburg, PA 17055 (717) 697-8528 Attorneys for Defendants Geneva L. Frankford and Gregoo. J. Frankford JANET L. KINGSBOROUGH and : IN THE COURT OF COMMON PLEAS OF WALTER E. KINGSBOROUGH, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : v. : NO. 2001-2692 CIVIL TERM : GENEVA L. FRANKFORD and : CIVIL ACTION - LAW GREGORY J. FRANKFORD,' : Defendants : JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THING:: FOR DISCOVERY PURSUANT TO RULE 4009.2 ~ TO: Dr. Chris Zeigler Rehab Options 3 Landis 2501 N. third Street Harrisburg. PA 17110 Within twenty (20) days after seN'ice of this subpoena, you are ordered by the court to produce the following documents or things: Any and all notes and records pertaining to any and all interviews, meetings with or counseling provided to Janet Kingsborough, Geneva Frankford and/or Waiter Kingsborough. All such documents are to be delivered to the undersigned at the law offices of Snelbaker, Brenneman & Spare. P. C., 44 W. Main Street, Mechanicsburg, Pennsylvania. You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things requested by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. This subpoena was issued at'the request of the following person: Keith O. Brenneman, Esquire Attorney ID #47077 Snelbaker. Brenneman & Spare, P. C. 44 W. Main St.. Mechanicsburg, PA 17055 (717) 697-8528 sn£~.~£,. ^tt~rney for Geneva L. Frankford and Gregory J. Frankford · s~^.~ BY THE COURT: Seal of the Court (Pro~-honotary) : IN T~-tE COURT · Plaintiffs CUMBEr. · .~ Ol: COMM . v. R'~"~D COl mr-,,. ON PLEAS ne Defendants CIVIL ACTION _ LA W , : JURy T~AL DEMA ~EOUiSiT- NDED PU ~'TOS As a P~qu~S~te ~o se?~ e o~a subpoena For doc s p~s~t to Rule :enific~ 2.~ a Copy of the notice of intern, including the ProPOsed sub~ena, is att~hed to this (3) no objection to the subpoena has been received, and e~'ed is identical ~o the sUb. end which is attaOed ,. ';. ~vm~n Street J¥~e_cnanicsburg, p.._ (/17) 697-8528 '~ ~ 7055 AttOrney for De£en Genev r . . dants Gte- a ~_. rrank£ord aha //or), d. Frank/oR/ JANET L. KINGSBOROUGH and : IN THE COURT OF COMMON PLEAS OF WALTER E. KINGSBOROUGH, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : : v. : NO. 2001~2692 CIVIL TERM : GENEVA L. FRANKFORD and CIVIL ACTION - LAW GREGORY J. FRANKFORD, Defendants JURY TRIAL DEMANDED NOTICE TO: Addus Health Care You are required to complete the following Certificate of Compliance when producing documents or things pursuant to the Subpoena. CERTIFICATE OF COMPLIANCE WITH SUBPOENA TO PRODUCE DOCUMENTS OR THINGS PURSUANT TO RULE 4009.23 I, , (person served with subpoena) certify to the best of my knowledge, information and belief that all documents or things required to be pursuant to the subpoena issued on ,2002 have been Date: Person served with subpoena ~ SPAR~ IANET L. KINGSBOROUGH and : IN THE COURT OF COMMON PLEAS OF WALTER E. KINGSBOROUGH. v. : CUMBERLAND COUNTy, PENNSYLVANIA Plaintiffs : : NO. 2001-2692 CIVIL TERM SENEVA L. FRANKFORD and : GREGORY j. FRANKFORD, : CIVIL ACTION _ LAW Defendants : : JURy TRIAL DEMANDED .... '~.ou.~.NT TO RU~ ltD: Addus Health - v ,,,~,- '~oo9.22 Care 401 E. Louther Street. Suite 306 Carlisle, PA 17013 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Any and all notes and records anY. aides providing personal care or assistance to Walt · made or Prepared by limited to, those notes and records ..re- _. er E. Kmosbo_ . . which in any way relate to Waiter E. Kingsborough. '"~,~ or lammy and Jul/e, are,, Oy a,des having the rs, but.ct All such docuraents are to be delivered to the undersigned at the law Brenncman & Spare, p. C., 44 W. Main Street, Mechanicsburg, Pennsylvania°.~ces of Snelbaker, You may deliver or mail legible copies o£the documents this subpoena, together with the certificate of compliance, or Produce things requested by address listed above· You have the right to · to the party making this request copies or producing the things sought· seek in advance the reasonable cost ofprepar/n~t the the If you fall to Produce the doc (20) days after its service ,~, .... ume. nts or things re ue : . to comply with it. , ,,~ puny servm this .~-~- q sted by th~s sub Den ,,,;a.:_. g s~"~cna may see~ - P a --sun [Went,, ,, a court order compelling ~ou This subpoena was ~ssued at the request of the £oliowing person. Keith O. Brermeman, Esquire A~torney ID//47077 Snelbaker, Brenneman & Spare, p. 44 W. Main St, C. · Mechaniesburg, PA 17055 ~ (717) 697-$525 ~^~. Attorney for Geneva L. '~^~ ~[~/~c~- Frankford and Gregory $. Frankford '^~ Date: ~ B Y THE COURT: Seal of the Court By~f~ ]~ ~_~.. _ / JANET L. KINGSSOROUGH and: IN THE COURT OF COMMON PLEAS OF WALTER E. KINGSBOROUGH, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. GENEVA L. FRANKFORD and No. 2001-2692 CIVIL TERM GREGORY j. FRANKFORD, CIVIL ACTION _ LAW Defendants : REPLy TO NEW MATrE~ 49. Denied. This allegation is a conclusion of law and no response is required. 50. Denied. Justification is not a defense to a claim for breach of contract or quantum meru/t/unjust enrichment. 51. Denied. This allegation is a conclusion of Jaw and no response is required. 52. Denied. Janet K/ngsborough did not express any specific concern regarding taking care of Walter Kingsbomugh in 1993 aside from general discussions about both Janet Kingsborough and Walter K/ngsborough,s advancing ages. 53. Denied. At a family meeting in 1994, living options were discussed for the Kingsboroughs. At that meeting, Gregory Frankford was adamant that the Kingsboroughs would not be placed in any tYpe of nursing care facilitY, but rather, would move into his household where there would be an extended family environment which the Franldord family would assist in the care of Walter Kingsborough Janet Kingsborough. and 54. Admitted and denied. It is admitted that the Frankfords were owners of a properly on Bonnybrook Road. The remainder of the allegations in this paragraph are denied, as answering plaintiff does not have sufficient their truth, information to form a belief as to 55. Denied. Answering plaintiff does not have sufficient information to form a belief as to the truth of the allegations in paragraph 55. 56. Denied. Answering plaintiff does not have sufficient information to form a belief as to the truth of the allegations in paragraph 56. 57. Answering plaintiff does not have sufficient information to form a belief as to the truth of the allegations in paragraph 57. 58. Denied. The Frankfords decided to build a new house of their own volition. The written agreement entered into by the part/es speaks for itself. 59. Denied. Answering plaintiff does not have sufficient information to form a belief as to the truth of the allegations in paragraph 59. 60. Admitted. 61. Admitted. 62. Admitted in part and denied in part. The residence at 14 Dewberry Court was also closer to the Kingsboroughs places of employment and church, which was a benefit to them. The remaining allegations are admitted. 63. Admitted. 2 64. Denied. The Frankfords told the Kingsboroughs how much money it wOuld cost the Kingsboroughs to reside at 14 Dewberry Court. 65. Denied. Answering Plaintiff does not have sufficient information to form a belief as to the truth of the allegations in paragraph 65; the Frankfords assessed the Kingsboroughs a monthly fee for expenses, and the Kingsboroughs are not certain what bills were paid w/th that money. 66. Denied. Geneva Frankford did the activities mentioned Jn paragraph 66 largely for the benefit of her own family, and not primarily for the benefit of the KJngsboroughs. Janet Kingsborough provided daily care to Walter KJngsborough. 67. Denied. The Kingsboroughs believed they contributed hvo-fiffhs towards various expenses relative to 14 Dewberry Court. 68. Admitted and denied. It Js admitted that Joann Soulier and her three children moved into 14 Dewberry Court in September, 1999 for a seven month period. The remaining allegations Jn paragraph 68 are scandalous and impertinent, and should be stricken from the New Matter. 69. Denied. Answering Plaintiff does not have sufficient information to form a belief as to the truth of the allegations in paragraph 69. 70. Admitted. 71. Denied. Janet Kingsborough,s assistance and involvement with the care of her husband has a~ays been at a high level, including the time that the Kingsboroughs resided with the Frankfords. 3 72. Denied. Janet Kingsborough,s concern for her husband and his behavior did not diminish during the time the Kingsboroughs resided With the Frankfords. 73. Denied. The abiJlty of the Kingsboroughs to live on their own and to assist each other did not greatly diminish during the time the Kingsboroughs resided at 14 Dewberry Court. 74. Admitted and denied. It is admitted that Walter Kingsborough became incontinent intermittently and that sometimes he urinated and defecated whiJe fu~jy dressed, it is denied that the waste was deposited throughout the first floor of the residence on an ongoing basis. 7'5. Admitted and denied. On occasion, Walter Kingsborough wOUJd resist wearing protective undergarments. On most occasions, Waiter Kingsborough wouJd wear a Protective undergarment. 76. Denied. Janet Kingsborough regularly checked on the condition of her husband while they resided at 14 Dewberry Court and she always insisted that he wear protective undergarments. 77. Denied. It Js edmJtted that Walter Kingsborough became incontinent intermittently and that sometimes he urinated and defecated while fully dressed. It Js denied that the waste was ongoing basis, deposited throughout the first floor of the residence on an 78. Denied. Janet Kingsborough was always vigilant in ensuring that her husband took his medications Properiy. 4 79. Denied. Janet Kingsborough was always vigilant in ensuring that her husband took his medications properly. 80. Denied. Janet Kingsborough was always vigilant in ensuring that her husband took his medications properly. 81. Denied. Janet Kingsborough always properly stored the medications which were in her control. 82. Denied. The Frankfords promised that they were going to assist in the care of the Kingsboroughs when the Frankfords accepted the $72,000.00 in 1994, and the Frankfords failed to assist in the matters set forth in paragraph 82 of the New Matter as they had promised. 83. Denied. Janet Kingsborough always acted safely while preparing food. 84. Admitted. 85. Admitted and denied. Answering plaintiff is without information to form a belief as to what Walter K/ngsborough hit his head on, if anything. It is admitted that Janet Kingsborough allowed the Frankfords to attend to her husband, as was promised by the Frankfords when the April 26, 1994 agreement was signed. 86. Denied. Answering plaintiff does not have sufficient information to form a belief as to the truth of the allegations in paragraph 86. 87. Denied. Answering plaintiff does not have sufficient information to form a belief as to the truth of the allegations in paragraph 87. 5 99. - 101. Admitted. 102. Denied. Waiter Kingsborough demanded repayment of the loans, but the Frankfords refused. 103. Denied. Walter Kingsborough demanded repayment of the loans, but the Frankfords refused. Respectfully submitted, O'BRIEN, BARIC & SCHERER Michael A. ~herer, Esquire I.D. # 61974 17 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 Attorney for Plaintiffs maa'dlr/genllt/klngsbomugh/newmatter, rep VERIFICATION The statements in the foregoing Reply To New Matter are based upon information which has been assembled by my attorney in this litigation. The language of the statements is not my own. I have read the statements; and to the extent that they are based upon information which I have given to my counsel, they 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. § 4904 relating to unsworn falsifications to authorities. DATE: n°' /~--O/ ~ -CERTIFICATE OF SERVICI- I hereby certify that on August 20, 2001, I, Jennifer S. Lindsay, secretary to Michael A. Scherer, Esquire, did serve a copy of the Reply To New Matter, by first class U.S. mail, postage Prepaid, to the party listed below, as follows: Keith O. Brenneman, Esquire Snelbaker, Brenneman & Spare, P.C. 44 West Main Street Mechanicsburg, Pennsylvania 17055 JANET L. KINGSBOROUGH and: IN THE COURT OF COMMON PLEAS OF WALTER E. KINGSBOROUGH, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. GENEVA L. FRANKFORD and No. 2001- 2692 CIVIL TERM GREGORY j. FRANKFORD, Defendants CIVIL ACTION _ LAW JURY TRIAL DEMANDED PLAINTIFF'S RESPONSE TO DEFENDANTS, MOTION FOR PARTIAL SUMMARY JUDGMENT AND NOW, comes Janet L. Kingsborough, by and through her attorney, Michael A. Scherer, Esquire, and respectfully responds to the Defendants' Motion for Partial Summary Judgment as follows: 1. In the above-captioned action, Plaintiffs Walter E. Kingsborough and Janet L. KJngsborough seek, at Counts I, II and III of the Amended Complaint the return of the sum of $72,000.00 which they paid the defendants in order to reside with the defendants, and at Counts IV, V and VI the return of the sum of $10,300 which they loaned to the defendants while they resided with the defendants. (See Amended Complaint). 2. Count IV of the Amended Complaint sets forth an action for breach of contract, Count V sets forth an action for unjust enrichment and Count VI sets forth a claim of quantum meruit. 3. The defendant, Geneva Frankford, testified at her deposition on November 15, 2001, that several different loans were made to her by the Plaintiff, including loans for two campers and braces (for a child's teeth). (November 15, 2001 Deposition of Geneva Frankford ("Frankford Depostion" pp. 101- 105). Copies of pages 101 to 105 of the Deposition are attached hereto as "Exhibit A"). 4. The defendant Geneva Franldord testified that nothing was worked out for the terms of the repayment of the loans at the beginning. ('Frankford Deposition, p. 102). 5. The defendant Geneva Frankford testified that no interest accrues on the loans. (Frankford Deposition, p. 102). 6. The defendant Geneva Frankford testified that, when a loan was made to her for Matthew's braces, she offered to pay the plaintiff $100.00 per month. (Frankford Deposition, p. 102). 7. The plaintiff, Janet Kingsborough, has accepted these payments. 8. The Plaintiff, Janet Kingsborough, is uncertain as to whether the $100.00 per month payments only relate to the loan made to the defendants for braces, and she has not been advised that she will receive $100.00 per month payments for the other loans made to the defendants. (Kingborough Depostion, p. 121, attached to Defendants, Motion for Partial Summary Judgment as "Exhibit A"). 9. A question of fact exists as to what, if any, amounts the defendants will pay for the loans other than for the braces. 10. A question of fact exists as to whether Janet Kingboreugh is now required to continue to accept $100.00 per month from the defendants for the loans for the braces, since no repayment terms were agreed upon when the loans were disbursed. 11. A question of facts exists as to whether, as a matter of law, and under the circumstances of this case, the defendants have been unjustly enriched as a result of their receipt of these loans, from Janet Kingsborough, interest free, at a time when Janet Kingsborough is in need of the repayment of these sums of money. Respectfully Submitted, O'BRIEN, BARIC & SCHERER Michael A. Scherer, Esquire 17 W. South Street Carlisle, PA 17013 (717) 249-6873 I.D. # 61974 Attorney for the plaintiff, Janet L. Kingsboreugh VERIFICATION The information in the foregoing Answers To Request For Production Of Documents are based upon information which has been assembled by my attorney in this litigation. The language of the statements is not my own. I have read the statements; and to the extent that they are based upon information which I have given to my counsel, they 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. § 4904 relating to unsworn falsifications to authorities. Janet L. Kingsborough CERTIFICATE OF SERVI~CCF I hereby certify that on July 3, 2002, I, Michael A. Scherer, Esquire did serve a copy of Plaintiff"s Response to Defendants' Motion for Partial Summary Judgment, by first class U.S. mail, postage prepaid, to the party listed below, as follows: Keith Brenneman, Esquire Snelbaker, Brenneman & Spare, P.C. 44 West Main Street Mechanicsburg, Pennsylvania 17055 icnael A. Sche~rmr -- ~ - 1 them. I'm okay. The medication problem was a 101 2 COncern. SOme of it was, you know, the confusion that 3 was going on here. 4 The Safety around the Stove, be 5 forgetting to turn the burner off or turn it up and 6 walk away. And like I said, I did not write down 7 every incident that happened and that it was happening 8 more and more. 9 My sister also saw that when she was 10 living with us. She mentioned it to me. And she had ll a lot on her, too. I know that. But it was 12 definitely a concern. 13 (Frankford Deposition Exhibit #7 was 14 marked for identification) Q I'm going to show you what has been 16 marked as Deposition Exhibit Number 7. Can you 17 identify that, please? A Yes. This is the amount that Greg and I 19 borrowed from my parents. 20 21 Q Is this a sheet that you prepared? A I had a pen and Pencil type of thing on 22 tablet paper. My husband took it from that and put it 23 into the computer. I'm trying to be real accurate on 24 what yOU're saying. 25 Q Okay. Well, that,s what we're here for, EXHIBIT A 1 is to be accurate. And it's dated September 17th, 102 2 20017 3 A Yes. 4 Q Has anything changed with respect to this 5 analysis since September 17th, 20017 6 A We paid $100 in October. Other than 7 that, no. 8 Q Is there any interest that is charged by 9 your mom for the loan? 10 A No. Q What are the terms of repayment for the 12 loan or loans? 13 A At the beginning, nothing was worked out. 14 When I'borrowed for Matthew,s braces, I said mother, 15 what if I pay -- is it acceptable if I give you $100 a 16 month. 17 She did not ask. But I Offered, would 18 it be acceptable to give you $100 a month. She said 19 yes. 2O Q You haven,t made any payments since 21 October of this year. Is that right~ 22 - A I did not write the check out for 23 November yet. 24 25 Q So you intend to continue to pay? A Yes. And I can give her a check today, 1 if you Wish. 103 2 Q So the balance due as of this moment is 3 what? 4 A 9,700. 5 Q How did these loans occur? Did you 6 approach your mother, or did you approach your father 7 when he was still alive? 8 A I know I approached mother. I don't 9 recall about father,s involvement. Dad could not 10 understand David,s accounts and CD's. And if it 11 wasn,t his checkbook, he COuldn,t comprehend putting 12 them both together. 13 The first loan there, we said we would 14 like to go camping tOgether as a family. We need to 15 get away a little bit. Mother said yes, you need to 16 get away. 17 So we borrowed money for the camper thing 18 that went on the back of the pickup truck. And that 19 turned out it didn,t work right. But anyway, the 20 first thing was the camper. 21 And then the next one was the braces. 22 But we discussed it with her. 23 Q And essentially, how does that 24 COnversation go? Mom, Can I borrow SOme money? 25 A Yes. Basically. We would like to get a 104 1 camper, could we borrow some of your money. Well, 2 sure, you've been taking care of our money, you can 3 borrow'that. Said I'll keep track of it. 4 Matthew needed braces really bad. She 5 could see that. And she said sure, it's no problem. 6 Prior to that, my sister and brother-in-law had 7 borrowed money on numerous occasions. 8 And I started keeping track of that 9 because when I didn,t and it would be mentioned, Dan 10 wouldn,t remember what we did. So we tried to make 11 some accountability there. And I kept track, and I 12 gave them copies of the papers, too, so they would 13 have it. 14 Q Do you remember what the other two 15 amounts were for that you borrowed? I mean, you show 16 there 1,400, but what was it used for? 17 A The first time was a camper that fit on 18 the back of the pickup truck. And then we ended up 19 selling that and getting a pull-behind camper. And so 20 it was the two different campers. MR. BRENNEMAN: I'm Sorry. Could you 22 clarify that, the first thousand was for the-- 23 THE WITNESS: The first thousand, 24 don,t remember what that one was. It might have 25 been Connected with the camper. I'm not Sure 105 1 because the date is not that far off. I'm not 2 sure. 3 MR. BRENNEMAN: I interrupted. He had 4 asked you what those other amounts were for, 5 what loans, for what purpose. 6 THE WITNESS: The ones Over here-- 7 BY MR. SCHERER: 8 Q May of 97 was for 1,400, and July of 97 9 was for 1,400. I was just curious if you recall what 10 those sums were used for. 11 A It's possible that one was a down payment 12 and the other was the final payment. It's a 13 possibility. 14 Q On the camper? 15 A Yes. 16 Q If you don't remember, that's fine. It 17 doesn't sound like you really remember? 18 A It's a possibility. And you have the 19 other amount. I'm not sure. I definitely know the 20 braces because I have that down there. 21 (Frankford Deposition Exhibit #8 was 22 marked for identification) 23 Q Last, but not least, Frankford Exhibit 24 Number 8. 25 A Okay. JANET L. KINGSSOROUGH and: IN THE COURT OF COMMON PLEAS OF WALTER E. KINGSBOROUGH, .. CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. GENEVA L. FRANKFORD and No. 2001-2692 CIVIL TERM GREGORY j. FRANKFORD, CIVIL ACTION - LAW Defendants JURY TRIAL DEMANDED P~RAEClPE TO A'FI'ACH EXHIBi¥~ TO THE PROTHONOTARY: Please enter the following exhibits into the record. 1. Proposed settlement sheet from attempted refinance of 14 Dewberry Court, Mechanicsburg, Pennsylvania on June 10, 2003; and, 2. Commitment letter from National City Mortgage for refinance of 14 Dewberry Court, Mechanicsburg, Pennsylvania. Respectfully submk'ted, O'B.~~TM i.MiDC, h#a~119A.74Scherer, Esquire - 17 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 mas'dlr/genllt/klngsborough/exhlblt.pra SETTLEMENT 5'I'ATEMENT CERTIFICATE OF SERVICE I hereby certify that on October I ~ ,2003, I, Jennifer S. Lindsay, secretary to Michael A. Scherer, Esquire did serve a copy of Pmecipe To Attach Exhibits, by first class U.S. mail, postage prepaid, to the party listed below, as follows: Keith Brenneman, Esquire Snelbaker, Brenneman & Spare, P.C. 44 West Main Street Mechanicsburg, Pennsylvania 17055 JANET L. KINGSBOROUGH and: IN THE COURT OF COMMON PLEAS OF WALTER E. KINGSBOROUGH, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. · ' No. 2001-2692 CIVIL TERM GENEVA L. FRANKFORD and GREGORY j. FRANKFORD, CIVIL ACTION . LAW Defendants : JURY TRIAL DEMANDED AND NOW, this'~ ~ day of October, 2003, the argument in this matter is hereby removed from the argument court list and a special argument is set in this matter for Monday, October 27, 2003 at 10:30 a.m. ~lichael A. Scherer, Esquire O'Bden, Badc & Scherer 17 West South Street Carlisle, Pennsylvania 17013 ~ ~f(eith O. Brenneman, Esquire ;~ Snelbaker, Brenneman & Spare, pc ' [R~ 44 West Main Street Mechanicsburg, Pennsylvania 17055 ] ~. ~ .(~.-~ JANET L. KINGSBOROUGH · IN THE COURT OF COMMON PLEAS OF and ' : CUMBERLAND COUNTY, PENNSYLVANIA WALTER E. KINGSBOROUGH: Plaintiffs : 01-2692 CIVIL TERM V. : CIVIL ACTION - LAW GENEVA L. FRANKFORD and i GREGORY j. FRANKFORD, Defendants IN RE: DEFENDANTS, MOTION TO STRIKE LIS PENDENS ORDER OF COURT AND NOW, October 27, 2003, after careful consideration of the arguments presented, defendants' Motion to Strike Lis Pendens is refused. By the Court, V,l~lJchael A. S ch er er, Esquire ~r~~Jl~ r'~'J' 17 West South Street Carlisle, PA 17013 For the Plaintiffs ~,K'eith O. Brenneman, Esquire 44 West Main Street PO Box 318 Mechanicsburg, PA 17055 For the Defendants 19"~; t, IJ [ZigOgO ...... · ~ dO PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO T~E PROTHONOTARy OF C~p,L~U~) C(~JNTy Please list the following case: (Check one) ( ) for JURY trial at the next teton of civil court. (~ for trial without a jury. ., (entire caption must be Stated in full) (check one) ( ) Civil Action - Law JANET L.KINGSBOROUGH and WALTER E. EINGsEoROUGH ( ) A~ fr~m Arbitration (x) E_g~it¥ (Plaintiff) (other) - vs. GENEVA L. FRANKFORD and The trial list will be called on GREGORY j, FRANKFORD Trials ccx~ence on vs. (Defendant) Pretrials will be held on (Briefs are due § days bef~ (The l~arty listing this case for trial shalj provide forthwith a co~y of the Praecipe to all coUnsel, ~rSUant to local RUle 214.1.) Indicate the attorne ..... No. ~2692 Civil_ Term · 2001 __ Michpe! A. Scher q e~Y case for the l~rty who files this P~aecil~e: Indicate trial coUnsel for , 19 West South Street, Carlisle, PA 17013 other Parties if known: Keith Brenneman, EsqUire, 44 West Main Street', Mecha~niCSbur PA 1 55 This case is ready for trial. Si~ed: ~ Date..__ ~'[6.D~/ Print Name:Mishap,] A. Seherero Esauire -- Attorney for: _Pla~tiff -- JANET L. KINGSBOROUGH AND : IN THE COURT OF COMMON PLEAS OF WALTER E. KINGSBOROUGH, : CUMBERLAND COUNTY', PENNSYLVANIA PLAINTIFFS V. : GENEVA L. FRANKFORD AND GREGORY j. FRANKFORD, " DEFENDANTS : 01-2692 CIVIL TERM ORDER OF COURT AND NOW, this 15~h day of April, 2004, upon request of counsel, a pretrial conference is scheduled for Wednesday, May 12, 2004, at 11:00 a.m., in Courtroom Number 2, Cumberland County courthouse, Carlisle, Pennsylvania. Counsel for the Parties shall file pretdal memorandums in the chambers of this judge three days prior to the pretrial conference. Edgar B. Bayley, j. ~ichael A. Scherer, Esquire For Plaintiffs ~eith O. Brenneman, Esquire ~ ~ For Defendants :sal -¢ JANET L. KINGSBOROUGH AND : IN THE COURT OF COMMON PLEAS OF WALTER E. KINGSBOROUGH, : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS : V. : .' GENEVA L. FRANKFORD AND : GREGORY j. FRANKFORD, DEFENDANTS : : 01-2692 CIVIL TERM ORDER OF COURT AND NOW, this 12· day of May, 2004, following a pretrial conference, IT IS ORDERED that a non-jury trial will be conducted in Courtroom Number 2, at 9:00 a.m., Friday, June 11, 2004. Edgar B. Bayley, j. ~- ~ ..,.Michael A. Scherer, Esquire For Plaintiffs · ~ -'Keith O. Brenneman, Esquire For Defendants Court Administrator 05 ' J ~, 'Or/ :sal L. KINGSBOROUGH and : IN THE COURT OF COMMON PLEAS OF WALTER E. KIN(3SBOROUGH, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : v. : NO. 2001-2692 CIVIL TERM : GENEVA L. FRANKFORD and : CIVIL ACTION - LAW GREGORY J. FRANKFORD, : Defendants : JURY TRIAL DEMANDED ORDER AND NOW, this ~ day of June, 2004. upon consideration of Defendants' Motion. it is hereby ORDERED that Dr. Christopher J. Ziegler shall release information including records pertaining to any and all interviews, meetings with and counseling provided to Janet Kingsborough. Geneva Frankford and Walter Kingsborough. BY THE : J. SNELBAKER. BRENNEMAN SPARE JANET L. KINGSBOROUGH and : IN THE COURT OF COMMON PLEAS OF WALTER E. KINGSBOROUGH, Plaintiffs : CUMBERLAND COUNTY, PENNSYLVANIA V. : : NO. 2001-2692 CIVIL TERM : GENEVA L. FRANKFORD and : CIVIL ACTION - LAW GREGORY j. FRANKFORD, : Defendants : JURY TRIAL DEMANDED MOTION FOR ORDER FOR THE RELEASE 01: PSYCHOLOGIST'S RECORDS Defendants Geneva L. Frankford and Gregory J. Frankford, by their attorneys, Snelbaker, k Spare,. p. C., hereby submit this Motion and in support thereof state the following: 1. A bench trial in the above-captioned ease is scheduled before the Court on June 1 I, 2. On May 21, 2004 Defendants' attorney served upon Dr. Christopher J. Ziegler a luiring his attendance at the time of the hearing and producing documents specified the subpoena; namely, all office notes and records pertaining to any interviews and counseling to Janet Kingsborough, Geneva Frankford and/or Walter Kingsborough. 3. In response to receiving the subpoena identified above, Dr. Ziegler advised counsel that although he is willing to cooperate in providing the records requested at time of trial, he feels that due to his Profession and ethical constraints psychologist as well as federal law, a court order is necessary to communicate with and release records as requested by the subpoena. 4. Plaintiff's counsel, Michael Scherer, consents to the issuance of an order permitting of information and documents as requested S~"~LS^~ER. herein. [~RENNEMAN SPARE WHEREFORE, Defendants requests this Court to issue an Order directing Dr. Christopher J. Zicgler to release information as well as notes and records pertaining to interviews, meetings with or counseling provided to Janet Kingsborough, Geneva Frankford and Walter Kingsborough. SNELBAKER, BRENNEMAN & SPARE, p. C. Keith O. Brenneman, Esquire 44 W. Main Street Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Defendants June 1, 2004 SNELEAKER. BRENNEMAN SPARE '2- VERIFICATION I verify that the statements made in the foregoing Motion are true and correct. I that false statements herein are made subject to the penalties of 18 Pa.C.S. Section relating to unsworn falsification to authorities. Keith O. Brenneman June 1, 2004 ~RENNEMAN SPARE C~ERTIFICATE OF SERVICE I, KEITH O. BRENNEMAN, ESQUIRE, hereby certify that I have, on the below date. :aused a true and correct copy of the foregoing to be served upon the person and in the manner indicated below: FIRST CLASS L~IAIL POSTAGE PREPAID ADDRESSED AS FOLLOWS: Michael A. Scherer, Esquire O'Brien, Baric & Scherer 19 West South Street Carlisle, PA 17013 SNELBAKER. BRENNEMAN & SPARE, P.C. Keith O. Brenneman, Esquire 44 W. Main Street P. O. Box 318 Mechanicsburg, PA 17055 (717) 697-8528 June l, 2004 Attorneys for Defendants SPARE JANET L. KINGSBOROUGH and: IN THE COURT OF COMMON PLEAS OF WALTER E. KINGSBOROUGH, : CUMBERLAND COUNTY, PENNSYLVANIA v. Plaintiffs : GENEVA L. FRANKFORD and No. 2001- 2692 CIVIL TERM GREGORY j. FRANKFORD, : CIVIL ACTION . LAW Defendants P~RAEClPE TO STRIKE LIS PENDEN~_ TO THE PROTHONOTARY: Please strike with prejudice the lis pendens previously filed in this matter and indexed against the following real property: All that certain tract of real estate and improvements thereon located at 14 Dewberry Court, Mechanicsburg, Cumberland County, Pennsylvania 17055. Recorded in Deed Book 107 Page 1187 Respectfully submitted, O'BRIEN, BARIC & SCHERER DATE:_ '~' 7' o L/ Michael A. Scherer, Esquire I.D. # 61974 17 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 ma"'dlr/genlltfklngmborough/llSpenden,,.pra C-Q~RTIFICATE. OF SERVICi I, Michael A. Schemr, Esquire, hereby certify that I have on the below date, caUSed a true and correct copy of the foregoing Pmecipe to Strike Lis Pendens to be served upon the person and in the manner indicated below: First Class Mail, Postage Prepaid, To: Ke/th O. Brenneman, Esquire 44 W. Main Street P.O. Box 3~8 Mechanicsburg, PA ~7055 July 7, 2004 JANET L. KINGSBOROUGH and: IN THE COURT OF COMMON PL WALTER E. KINGSBOROUGH, CUMBER E. AS OF v. Plaintiffs LAND COUNTY, PENNSYLVANIA GENEVA L. FRANKFORD and No. 2001-2692 CIVIL TERM GREGORY j. FRANKFORD, CIVIL ACTION LAW Defendan~ - P~RAEClPE TO DISCONTINUI TO THE PROTHONOTARY: Kindly mark the above-captioned action as having been settled and discontinued. Respectfully submitted, O'BRIEN, BARIC & SCHERER Date:__7' '7. o~ I.D. # 61974 17 West South Street Carlisle, PA 17013 (717) 249-6873 Attorney for Plaintiff mas'dlr/genllt/klngibomugh/dlicontlnue.pra CERTIFICATE OF SERVICF I, Michael A. Scherer, Esquire, hereby certify that I have on the below date, caused a true and correct copy of the foregoing Praecipe to Discontinue to be served upon the person and in the manner indicated below: First Class Mail, Postage Prepaid, To: Keith O. Brenneman, Esquire 44 W. Main Street P.O. Box 318 Mechanicsburg, PA 17055 July 7, 2004