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HomeMy WebLinkAbout02-0731CARMELLA KINDLER, Plaintiff Vo FRANK M. KINDLER, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNA :NO. 02- '73/ : CIVIL ACTION - LAW : IN DIVORCE NOTICE You have been sued in Court. If you wish to defend against the claims set forth in the following papers, you must take prompt action. You are warned that if you fail to do so, the case may proceed without you and a Decree in Divorce or annulment may be entered against you by the Court. A judgment may also be entered against you for any other claim or relief requested in these papers by the Plaintiff. You may lose money or property or other fights important to you, including custody or visitation of your children. When the ground for the divorce is indignities or irretrievable breakdown of the marriage, you may request marriage counseling. A list of marriage counselors is available in the Office of the Prothonotary at the Cumberland County Court House, One Courthouse Square, Carlisle, Pennsylvania. IF YOU DO NOT FILE A CLAIM FOR ALIMONY, DIVISION OF PROPERTY, LAWYER'S FEES OR EXPENSES BEFORE A DIVORCE OR ANNULMENT IS GRANTED, YOU MAY LOSE THE RIGHT TO CLAIM ANY OF THEM. 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 ~Y ~( ~'~ q ' CARMELLA KINDLER, Plaintiff FRANK M. KINDLER, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNA :NO. (.>a-- 72{ : CIVIL ACTION - LAW : IN DIVORCE NOTICE OF AVAIl,ABILITY OF COUNSELING To the Within Named Defendant: You have been named as the Defendant in a divorce proceeding filed in the Court of Common Pleas of Cumberland County. This notice is to advise you that in accordance with Section 3302(d) of the Divorce Code, you may request that the Court require you and your spouse to attend marriage counseling prior to a divorce decree being handed down by the Court. A list of professional marriage counselors is available at the Office of the Prothonotary, One Courthouse Square, Carlisle, Pennsylvania. You are advised that this list is kept as a convenience to you and you are not bound to choose a counselor from this list. All necessary arrangements and the cost of counseling sessions are to be borne by you and your spouse. If you desire to pursue counseling, you must make your request for counseling within twenty (20) days of the date on which you receive this notice. Failure to do so will constitute a waiver of your right to request counseling. Prothonotary CARMELLA KINDLER, Plaintiff Vo FRANK M. KINDLER, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNA : CIVIL ACTION - LAW : IN DIVORCE COMPLAINT UNDER SECTION 3301 OF THE DIVORCE CODE 1. Plaintiffis Carmella Kindler, who currently resides at 3405 Chestnut Street, Camp Hill, Cumberland County, Pennsylvania 17011. 2. Defendant is Frank M. Kindler, who currently resides at 900 Kent Drive, Mechanicsburg, Cumberland County, Pennsylvania 17055. 3. Plaintiff and Defendant have been bona fide residents in the Commonwealth for at least six months immediately previous to the filing of this Complaint. 4. Plaintiff and Defendant were married on March 14, 1992, in Carlisle, Pennsylvania. 5. There have been no prior actions for divorce or annulment between the parties. 6. The Plaintiff is a citizen of the United States of America. 7. The Defendant is not a member of the Armed Services of the United States of America or its Allies. 8. The marriage is irretrievably broken. 9. The Plaintiff has been advised of the availability of counseling and that the Plaintiff may have the right to request that the Court require the parties to participate in counseling. The parties to this action have been separated since April 13, 2001. 10. Plaintiff requests the Court to enter a Decree in Divorce. COUNT H CLAIM FOR EQUITABLE DISTRIBUTION OF MARITAL PROPERTY UNDER SECTION 3502 OF THE DIVORCE CODE 11. Plalntiffand Defendant are the owners of various real and personal property, motor vehicles, bank accounts and insurance policies acquired during their marriage which are subject to equitable distribution by this Court. WHEREFORE, the Plaintiffrequests the Court to enter a Decree: a. dissolving the marriage between the Plaintiff and Defendant; b. equitably distributing all property owned by the parties hereto; and c. for such further relief as the Court may determine equitable and just. JAMES, SMITH, DURKIN & CONNELLY Hershey, PA 17033 (717) 533-3280 PA I.D. No. 15615 VERIFICATION I verify that the statements made in this Plead'mg are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Date: ~,~ - gg,.~'- 0o~ CARMELLA KINDLER, Plaintiff Vo FRANK M. KINDLER, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNA :NO. : : CIVIL ACTION - LAW : IN DIVORCE Carmella Kindler, social security no. 206-40-9719 Frank M. Kindler, social security no. 181-42-7702 CARMELLA KINDLER, Plaintiff FRANK M. KINDLER, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA ; : NO. 2002-731 : : CIVIL ACTION- LAW : IN DIVORCE TO THE PROTHONOTARY: Please reinstate the above-captioned divorce action on behalf of the Plaintiff, Carmella Kindler. JAMES, SMITH, DURKIN & CONNELLY Hershey, PA 17033 (717) 533-3280 PA I.D. No. 15615 CARMELLA KINDLER, Plaintiff FRANK M. KINDLER, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 02-731 Civil Term : CIVIL ACTION - LAW : IN DIVORCE ACCEPTANCE OF SERVICE I, Frank M. Kindler, accept service of the Divorce Complaim on behalf of myself, Defendant, therein. Date: (.~/oZ~/~ Frank M. Kindler, Defendant 900 Kent Drive Mechanicsburg, PA 17055 CARMELLA KINDLER, Petitioner VS. FRANK M. KINDLER, Respondent : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : No. 2002-731 : : CIVIL ACTION - LAW : IN DIVORCE TO THE HONORABLE JUDGES OF SAID COURT: MOTION TO COMPEL THE PRODUCTION OF DOCUMENTS AND A REQUEST FOR SANCTIONS AND COUNSEL FEES AND NOW this __ day of September, 2002, comes the above named Petitioner, Carmella Kindler, by and through her attorneys, James, Smith, Durkin & Connelly, LLP, files this Motion to Compel and Request for Sanctions and in support thereof avers the following: 1. Petitioner is Carmella Kindler, who currently resides at 3405 Chestnut Street, Camp Hill, Cumberland County, Pennsylvania 17011. 2. Respondent is Frank M. Kindler, who currently resides at 900 Kent Drive, Mechanicsburg, Cumberland County, Pennsylvania 17055. 3. On or about June 5, 2002, Petitioner served upon Respondent Request for Production of Documents. A copy of said Request is attached herein as Exhibit 4. Respondent failed to answer the Request for Production of Documents within the twenty (20) day time frame. 5. As a result of Respondent's failure to respond, Petitioner sent a letter to the Respondent giving him an additional seven (7) days to produce the requested documents. A copy of the letter is attached herein as Exhibit "B". To date there has been no response from Respondent. Accordingly, Petitioner requests this Honorable Court to order Respondent to supply any and all documents requested in Petitioner's Request for Production of Documents within ten (10) days. Petitioner requests the Court order the Respondent to pay counsel fees, costs and expenses incurred as a direct result of Respondent's failure to answer Petitioner's Request for Production of Documents. Petition further requests that the Court impose sanctions as determined by the Court for his failure to respond. WHEREFORE, Petitioner respectfully requests the Court order Respondent to supply the information requested in Petitioner's Request for Production of Documents, order Respondent to pay for Petitioner's counsel fees, costs and expenses incurred as a result of Respondent's failure to answer Petitioner's Request for production of Documents, and impose sanctions as determined by the Court. Respectfully submitted, JAMES, SMIT.~,~I2)U~ CONNELLY, LLP By: ~~~, _~__ ey~ for~Vetitioner { ) [/ P.U. Box'b~O ~ ~ Hershey, PA 17033 (717) 533-3280 PA I.D. No. 15615 EXHIBIT A CARMELLA KINDLER, Pla~nHff VS. FRANK M. KINDLEK, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : No. 2002-731 : :'CIVIL ACTION- LAW : IN'DIVORCE REOUEST FOR PRODUCTION OF DOCUMENTS AND TI:HNG$ TO: FRANK M. KINDLER 900 Kent Drive Mechanicsburg, PA 17055 You are requested, in accora~nce with Pa. 1LC.P. 4009, to deliver to the office of the undersigned at Post Office Box 650, Hershey, Pena~lvania, or othen~cise make arrangements reasonably satisfactory to the undersigned, for his inspection or examination, copies of the following documents, articles, and things, within twenty (20) days of the date of this Request. For purposes of this Request, all computer records and information available on computer records or within computer programs should be included with this Request for Production. Th~ is, chis Request is not limited to documents or "hard copies" of records, but should include computer records, tapes, disks, and other media as well as paper documents. 1. Copies of annual financial statements for FCK, Inc and Fitness Traders, Inc. for the last five years ending December 31, 1997 through December 31, 2001. 2. Copies of Federal and State Income Tax Returns for FCK, Inc and Fitness Traders, Inc. for the last five years ending December 31, 1997 through December 31, 2001. 3. Copies of any and all forecasts or projections prepared for FCK, Inc. and Fitness Traders, Inc. in the last five years. 4. Copies of any infoi-mation relating to subsidiaries or other businesses in which FCK, Inc. and Fitness Traders, Inc. has an ownership interest, including a list of such subsidiaries or other businesses and the fmanciai statements of such subsidiaries or other businesses for the last five years ending December 31, 1997 through December 31, 2001. 5. Copies of the list of cash accounts and any additional cash investments for FCK, Inc. and Fitness Traders, Inc. for the last five years ending December 31, 1997 through December 31, 2001. 6. Copies of the aged receivable listing for FCK, Inc. and Fitness Traders, Inc. for the last five years ending December 31, 1997 through December 31, 2001. 7. Copies of the list of items comprising inventory, such as qu_a~tity, description and cost as well as the information on inventory accounting policies for FCK, Inc. and Fitness Traders, Inc. for the last five years ending December 31, 1997 through December 31, 2001. 8. Copies of the fixed asset register or depreciation schedules for FCK, Inc. and Fitness Traders, Inc. for the last five years ending December 31, 1997 through December 31, 2001. 9. Copies of the list of items comprising significant other asset balances for FCK, Inc. and Fitness Traders, Inc. for the last five years ending December 31, 1997 through December 31, 2001. 10. Copies of the aged accounts payable listing for FCK, Inc. and Fitness Traders, Inc. for the last five years ending December 31, 1997 through December 31,2001. 11. Copies of the analysis of significant accrued liabilities for FCK, Inc. and Fitness Traders, Inc. for the last five years ending December 31, 1997 through December 31, 2001. 12. Copies of the notes payable and other interest-bearing debt for FCK, Inc. and Fitness Traders, Inc. for the last five years ending December 31, 1997 through December 31, 2001. 13. Copies of the list of items comprising significant other liability balances for FCK, Inc. and Fitness Traders, Inc. for the last five years ending December 31, 1997 through December 31, 2001. 14. Copies of the schedule of officers' and directors' compensation for FCK, Inc. and Fitness Traders, Inc. for the last five years ending December 31, 1997 through December 31, 2001. 15. Copies of any schedules of key person life insurance held by FCK, Inc. and Fitness Traders, Inc. for the last five years. 16. Copies of any reports prepared by other professionals, including appraisals on specific assets, reports of other consultants and reports of independent auditors obtained by or for the benefit of FCK, Inc. and Fitness Traders, Inc. for the last five years. 17. Copies of any brochures, price lists, catalogs or other product information for FCK, Inc. and Fitness Traders, Inc. for the last five years. 18. Copies of the list of stockholders and parmers, showing the amount of stock or the percentage of stock owned by each for FCK, Inc. and Fitness Traders, Inc. presently and over the last five years. 19. Copies of the organization chart for FCK, Inc. and Fitness Traders, Inc. presently and over the last five years. 20. Copies of the details of transactions with related parties for FCK, Inc. and Fitness Traders, Inc. for the last five years ending December 31, 1997 through December 31, 2001. 21. Copies of any significant leases and loans, including notes receivable and notes payable, for FCK, Inc. and Fitness Traders, Inc. for the last five years ending December 31, 1997 through December 31, 2001. 22. Copies of any stockholder or pm'tuership agreements, including any stock option agreement, for FCK, Inc. and Fitness Traders, Inc. for the last five years ending December 31, 1997 through December 31, 2001. 23. Copies of any mifiutes of board of directors meetings, for FCK, Inc. and Fitness Traders, Inc. for the last five years ending December 31, 1997 through December 31, 2001. 24. Copies of the any buy/sell agreements and/or any written offers to purchase or sell company stock, for FCK, Inc. and Fitness Traders, Inc. for the last five years ending December 31, 1997 through December 31,2001. 25. Copies of key managers' employment contracts, for FCK, Inc. and Fitness Traders, Inc. for the last five years ending December 31, 1997 through December 31, 2001. 26. Copies of any major sale or purchase contracts, for FCK, Inc. and Fitness Traders, Inc. for the last five years ending December 31, 1997 through December 31, 2001. 27. Copies of the details of any litigation, including pending or threatened lawsuits, for FCK, Inc. and Fitness Traders, Inc. for the last five years ending December 31, 1997 through December 31,2001. 28. Copies of the details of any employee benefit plans, including pensions pla,u, profit sharing plans and employee stock option plans, for FCK, Inc. and Fitness Traders, Inc. for the last five years ending December 31, 1997 through December 31, 2001. 29. Copies of any attorneys' invoices/billing statements, for FCK, Inc. and Fitness Traders, Inc. for the last five years ending December 31, 1997 through December 3 I, 2001. 30. Copies of the details of transactions in the company's stock, for FCK, Inc. and Fitness Traders, Inc. for the last five years ending December 31, 1997 through December 31, 2001. 31. Copies of a list of any patents, copyrights, trademarks of similar intangibles held by FCK, Inc. and Fitness Traders, Inc. for the last five years. 32. Copies of details regarding any contingent liabilities, including but not limited to g~mrantees, warranties, and derivative financial instnmaents or any offbalance sheet financing, including but not limited to letters of credit, for FCK, Inc. and Fitness Traders, Inc. for the last five years ending December 31, 1997 through December 31, 2001. 33. Copies of the resumes or similar summary of the background and experience of all key personnel employed by FCK, Inc. and Fitness Traders, Inc. 34. Copies of any and all other value indicators, including but not limited to property mx appraisals, for FCK, Inc. and Fitness Traders, Inc. for the last five years. 35. Copies of any documents that evidence all non-taxable income not reported on the 2001 tax return received by Frank M. Kindler in the year of 2001. 36. Copies of the amortization schedules for the following properties: Residential Real Estate, Juniper Township, Residential Rental, New Kingston, PA, Residential Real Estate, Elizabethville, PA, Commercial Real Estate, 3460 Paxton Street, Harrisburg. (717) 533-3280 PA I.D. No. 15615 CARMELLA KINDLER, Plaintiff VS. FKANK M. KINDLER, Defendant : IN THE COUKT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : No. 2002-731 : : CIVIL ACTION- LAW : IN DIVORCE - CERTIFICATE OF SERVICE I, John J. Connelly, Jr., Esquire, of James, Smith, Durkin & Connelly, attorney for the Plaintiff, Ca~mella Kindler, hereby certify tbst I have served a copy of the Request for Production of Documents on the following on the date and in the manner indicated below: U.S. MArg,. FIRST CLASS. PRE-PAID Frank M. Kindler 900 Kent Drive Mechanicsburg, PA 17055 DATE: JAMES, SMITH, DURKIN & CONNELLY By fl~n ~C,~nnell~ Jr., E~tni~ X Att~m~y ~ P~ ~ Po~~x 650 H~h~, PA 17033 (717) 533-3280 PA I.D. No. 15615 EXHIBIT B John J. Connelly, Jr. jjcjr(~jsdlcgal.com July 31, 2002 134 SIPE AVENUE HUMMELSTOWN, PA 17036 MAILING ADDRESS: P.O. BOX 650 HERSHEY, PA 17033 TEL. 717.533.3280 FAX 717.533.2795 INFO~}JSDLEGAL.COM WWW.JSDC.COM 'Frank M..Kindler 900 Kent Drive Mechanicsburg, PA 17055 Dear Mr. Kindler: I forwarded to you on June 5, 2002 a Request for Production of Documents. I have not received your response. The rules of court require that you respond to this request within thirty (30) days of receipt. It has now been almost two months since you have had this request in your possession, however, you have done nothing to comply with the directive. Unless I receive a response from you within seven (7) days of the date of this correspondence, I will petition the court to order your comphance with the Request for Production of Documents and will also request that the court award coun.qel fees for your failure to respond in a timely fashion. I trust you will understand the importance of a response. JJC:has GARY L. JAMES MAX d. SMFrH, JR. · KAREN DURKIN JOHN J. CONNELLY, JR. SCOTT A. DtE~ T~RICK JAMES F. SPADE GREtaORY K. RICHARDS R~CHARD L. DAHLEN Susa~ M.' KADEL J~ W. I'IANDELMAN DONNA M. MULL~N EDWARD P. SE~ NElL W. YAHN BERNARD A. RYAN, JR. COURT~EY L. K~SHEL OF COUNSEL: ANDREW W. B~0:IBIN HERSHEY, PA MANLEY & DEAS, LLC COLUMBUS, O~ cc: Carmella Kindler CARMELLA KINDLER, Petitioner VS. FRANK M. KINDLER, Respondent : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : No. 2002-731 : : CIVIL ACTION - LAW : IN DIVORCE CERTIFICATE OF SERVICE I, John J. Connelly, Jr., Esquire, of James, Smith, Durkin & Connelly, attorney for the plaintiff, hereby certify that I have served a copy of the foregoing Motion to Compel and Request for Sanctions and Counsel Fees, on the following on the date and in the manner indicated below: United States Mail Mr. Frank M. Kindler 900 Kent Drive Mechanicsburg, PA 17055 DATE: JAMES, SMITH, DURKIN & CONNELLY By: j~~ ~~6~Esq' C ~ Hershey, PA 17033 (717) 533-3280 PAI.D. No. 15615 CARMELLA KINDLER, Petitioner VS. FRANK M. KINDLER, Respondent : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : No. 2002-731 : : CIVIL ACTION - LAW : IN DIVORCE RULE TO SHOW CAUSE thl AND NOW, 's],'~ day of September, 2002, a Rule is issued upon the Respondent, Frank M. Kindler, to show cause why the within Motion to Compel Production of Documents and the Request for Sanctions and counsel fees should not be granted. Said Rule is returnable within ~ days of service of this order. BYTHECOURT, CARMELLA K1NDLER, Plaintiff V. FRANK M. KINDLER, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND C,OUNTY, PENNSYLVANIA No.: 2002 - 731 CIVIL ACTION - LAW IN DIVORCE AFFI DAVIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA : : SS. COUNTY OF DAUPHIN : AND NOW, thiso~O~/~ay of ~, 2003, personally appeared before me, a Notary Public in and for the State and County aforementioned, Jolm J. Connelly, Jr., Esquire, who, being duly sworn according to law, deposes and says that a copy of the Rule to Show Cause and Motion to Compel Production of Documents were served on the Defendant, Frank M. Kindler, on November 14, 2002, by certified mail number 7001 0360 0002 6074 6363 as evidenced by the return receipt card attached hereto and made a part hereof. Swom to and subscribed before me this ~ day of ~/~~Jt_~2002. (,J -N°ta~ 15ubl~'c{- Jean L. Kosier, Notary Public City of Hummelstown,County of Dauphin My Oomm ss on Expires Feb. 9, ~)004 Item 4 If Restricted Delivery Is de~lred. · Print your name and address on the reverse so that we can return the card to you. · Attach this card to the back of the mallplece, or on the front if space permits. 1. ~lcle Addressed to: Frank M. Kindler 900 Kent Drive Mechanicsburg, PA 17055 2. Article Number (Copy from service label) A. ~W~~c~ B. ~F~,f~ M. Kindl, r If Y~ ~r ~v~ aa~ow: ~No ~.tfl~ M~p~ Mall ~ R~lst~ ~ R~urn R~el~ for M~ ~ Insu~ Mail ~ C.O.D. 4, I:leetrl~ted Delivery? (Extra Fee) ~[Yo~ ~70~01 ~0360_ 0_002 6074 6363 Ps Form 381 1, July 1~ ~ ~ Rec~pt 102595-00-M-0952 CARMELLA I~ Plaintit~ FRANK M. KI Defenda AND N1 attorneys, Jame: absolute the Rul. 2002, and in sup. 1. C Request for Sanc 2. in this action, to Request for Sam date of service, t mail, however, sc by restricted, cert marked Exhibit"l~ INDLER, DLER, nt IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2002-731 CIVIL ACTION - LAW IN DIVORCE MOTION TO MAKE RULE TO SHOW CAUSE ABSOLUTE )W, comes the Plaintiff, Carmella Kindler, in the above-captioned action, by her Smith, Durkin & Connelly LLP, and respectfully moves this Court to make to Show Cause which was issued in the above-captioned matter on September 24, ~ort thereof, states the following: m'nella Kindler, Plaintiff, filed a Motion to Compel Production of Documents and tions and Counsel Fees on or about September 19, 2002. n September 24, 2002, this Court issued a Rule on Frank M. Kindler, Defendant, ~how cause why the Plaintiff's Motion to ComPel Production of Documents and a tions and Counsel Fees should not be granted, returnable twenty (20) days from ~ copy of the Rule to Show Cause is attached hereto and marked Exhibit "A". flivery of said Rule was attempted on three (3) occasions by restricted, certified :rvice was not effectuated. The Defendant, Frank M. Kindler, was finally served fled mail on November 14, 2002, a copy of said Affidavit is attached hereto and 5. Motion to Cot amount of $650 WHER[ Rule to Show C~ requested docun costs and expem ['o date, the Defendant, Frank M. Kindler, has not answered the Rule. ['he Plaintiff has incurred counsel fees in connection with the preparation of the >el Production of Documents and the preparation of the within Motion in the )0. ;FORE, the Plaintiff, Carmella Kindler, respectfully requests this Court to make the ruse absolute and order that the Defendant, Frank M. Kindler, supply the lents, impose sanctions and order the Defendant pay for Plaintiff's counsel fees, es in this action as determined by the Court. Respectfully submitted, JAMES, SMITH, DURKIN & CONNELLY LLP Jo . nell, Jr., Esquire ~ ' .' P__~ntiff U Post Office 13-ox 650 Hershey, PA 17033 (717) 533-3280 PA I.D. No. 15615 VERIFICATION John J. Kindler, in this statements mac correct. He un~ Section 4904 re Date: I ] 3'] 'l Eonnelly, Jr., Esquire, represents that he is the attomey for the Plaintiff, Carmella case and is familiar with the facts concerning the parties, and verifies that the in the foregoing Motion to Make Rule to Show Cause Absolute are true and rstands that false statements herein are made subject to the penalties of 18 Pa.C.S. ating to unswom falsification to authorities. [o~_~. ~y, Jr., Esquire~_~ ~ ' EXHIBIT "A" YOU ARE HEREBYTNOTIFI~='D TOIPLEAD TO THE ENCLOSED [ WITHIN L,AW OFFICE JAMES SMYH-I DL/'RK~ & CONNELLY, wE NE.ES¥ tEaT,r, TH^T THE W,TH,N 'S ' ' , LLP * T.U~ AND CO..ECT CO.~ o~ THE OmGINAL r~LtD m TInS ACTION. E O BOX 6~ ~y HE. HEy, PENNSYLVA~ 17033~ A~ORNEY CARMELLA VS. FRANK M. g AND N Frank M. Kindl and the Requesl Zo within t~'O'~ KINDLER, Petitioner [NDLER, Respondent · IN THE COURT OF COMMON PLEAS · CUMBERLAND COUNTY, PENNSYLVANIA · No. 2002-731 · CIVIL ACTION - LAW · IN DIVORCE RULE TO SHOW CAUSE OW, this ;~t[~day of September, 2002, a Rule is issued upon the Respondent, er, to show cause why the within Motion to Compel Production of Documents for Sanctions and counsel fees should not be granted. Said Rule is returnable Lays of service of this order. BY THE COURT, EXHIBIT "B" CARMELLA KINDLER, Plaintiff FRANK M. KE Defenda COMMONWE/ COUNTY OF D AND N( me, a Notary Pu who, being duly and Motion to Cc on November 14 return receipt car Sworn to and sub before me this day of Jean L Kosie City of Hummelsto~ My Commission E ~DLER, · It · IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.: 2002-731 CIVIL ACTION - LAW 1N DIVORCE AFFIDAVIT OF SERVICE ,LTI-I OF PENNSYLVANIA · · SS. ~UPHIN · W, thiscff~/k~ay of '?~~~, 2003, personally appeared before lic in and for the State and County afbrementioned, John J. Co~elly, Jr., Esquire, worn according to law, deposes and says that a copy of the Rule to Show Cause repel Production of Documents were se~ed on the Defendant, Frm~c M. Kindler, 2002, by certified mail number 7001 0360 0002 6074 6363 as evidenced by the attached hereto and made a pa~ hereof. :ribed ~/~.J ,,2002. IAI- sEAL ', Notary Public ri,County of Dauphin xpires Feb. 9, ~ · so' · or 1. 1, 2, and 3. Also complete Restricted Delivery is desired. your name and address on the reverse eturn the card to you. to the back of the mailpiece, the front if space permits. Addressed to: nk M. Kindler Kent Drive hanicsburg, PA 17055 A. Recelve~y (Please Print C/early) S. Date of Delivery F~a~ M. Kindl r [] Agent D. Is deliver3 [] Yes If YES, enter deliveQ/ ~j~ No Service 5xpress Mail [] Registered [] Return Receipt for Merchandise [] Insured Mail [] C.O.D. - 4. Restricted Delivery? (Extra Fee) ~Yes 2. Article Number (Copy from service ~abel) 7001 0360 0002 6074 6363 PS For~ 3811, July 1999 Domestic Return Receipt 102595-00-M-0852 CARMELLA K Plaintiff FRANK M. KX Defend~ I, John Plaimiff, Frank Show Cause AI~ DATE: INDLER, 4DLER, nt IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2002-731 CIVIL ACTION - LAW IN DIVORCE CERTIFICATE OF SERVICE I. Connelly, Jr., Esquire, of James, Smith, Durkin & Connelly, attorney for the M. Kindler, hereby certify that I have served a copy of the Motion to Make Rule to solute on the following on the date and in the manner indicated below: U.S. MAIL~ FIRST CLASS~ PRE-PAID Frank M. Kindler 900 Kent Drive Mechanicsburg, PA 17055 JAMES, SMITH, DURKIN & CONNELLY ~2,~ !03 By:~~~ A otkq~ey ~intiff ~ '4 Post Office Box 650 Hershey, PA 17033 (717) 533-3280 PA I.D. No. 15615 CARMELLA KINDLER, Plaintiff v. ' NO. 2002-731 : · CIVIL ACTION - LAW · IN DIVORCE FRANK M. KINDLER, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ORDER OF COURT AND NOW, this 5~[';~day of --T?-~ >_2..] , 2003, upon consideration of the attached Motion, it is hereby ORDERED that the Rule which was issued on Defendant, Frank M. Kindler, in the above-captioned matter, on September 24, 2002 to show cause why the Plaintiff's Motion to Compel Production of Documents and a Request for Sanctions and Counsel Fees should not be granted, is made absolute due to the Defendant's failure to answer said Rule within twenty (20) days of the date of service. It is hereby ORDERED that the Defendant, Frank M. Kindler, shall w~thin f .er./zig.hr (~,,°)~c,-,a-~ of the entry of this Order, produce alii documents previously requested by Plaintiff. Failing compliance with this Order, the Defendant .s~tl~ be precluded from offering any testimony or evidence at the trial of equitable distribution in 'this matter with regard to any of the assets or liabilities for which documentation is not produced. _p~_~ c?:~sel fees to the plain*iff in the ~_?_e-._nt of $650.00 petyubie BY THE COURT: ESLEY OLE~, J[3DGE k" 60:q Md C-8_tJCO CARMELLA KINDLER, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 2002-731 FRANK M. KINDLER, Defendant CIVIL ACTION - LAW IN DIVORCE PRAECIPE FOR ENTRY OF APPEARANCE Please enter the appearance of Delano M. Lantz, Esquire, and Pamela L. Purdy, Esquire, of McNees, Wallace & Nurick on behalf of Defendant, Frank M. Kindler. McNEES W,~'CE & NURICK/~L~ By Delano M. Lant~ I.D. No. 21401 Pamela L. Purdy I.D. No. 85783 100 Pine Street P.O. Box ~1166 Harrisburg, PA 17108-1166 (717) 237-5348 Date: March 24, 2003 Attorneys for Defendant CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a copy of the foregoing document was served by first class mail, postage prepaid, upon the following: John J. Connelly, Jr., Esquire James Smith Durkin & Connelly LLP 134 Sipe Avenue Hummelstown, PA 17036 Date: March 24, 2003 CARMELLA KINDLER, Plaintiff/Petitioner VS. FRANK M. KINDLER, Defendant/Respondent : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2002-731 CIVIL ACTION - LAW IN DIVORCE ORDER AND NOW this __ day of July, 2003, upon consideration of Petitioner's Motion to Compel Production of Documents and Request for Sanctions and Counsel Fees, IT IS HEREBY ORDERED AND DECREED that Petitioner's Motion is GRANTED. Respondent is hereby ordered to supply the information to Petitioner's counsel no later than ten (10) days from the date of this Order. Furthermore, Respondent is ordered to pay Petitioner's counsel fees, costs and expenses incurred as a direct result of his failure to respond to Petitioner's Request for Production of Documents. BY THECOURT, CARMELLA KINDLER, Plaintiff/Petitioner VS, FRANK M. KINDLER, Defendant/Respondent : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2002-731 : : CIVIL ACTION - LAW : IN DIVORCE MOTION TO COMPEL THE PRODUCTION OF DOCUMENTSf AND A REQUEST FOR SANCTIONS AND COUNSEL FEES TO THE HONORABLE JUDGES OF SAID COURT: AND NOW, comes the above named Petitioner, Carmella Kindler, by and through her attorneys, James, Smith, Dietterick & Cormelly, LLP, and files this Motion to Compel and Request for Sanctions and in support thereof avers the following: 1. Petitioner is Carmella Kindler, who currently resides at 3405 Chesmut Street, Camp Hill, Cumberland County, Pennsylvania 17011. 2. Respondent is Frank M. Kindler, who currently resides at 900 Kent Drive, Mechanicsburg, Cumberland County, Pennsylvania 17055. 3. On or about June 5, 2002, Petitioner served upon Respondent a Request for Production of Documents. A copy of said Request is attached hereto and marked Exhibit "A". 4. Respondent failed to answer the Request for Production of Documents within the twenty (20) day time frame. 5. As a result of Respondent's failure to respond, Petitioner's counsel sent a letter to the Respondent giving him an additional seven (7) days to produce the requested documents. A copy of the letter is attached hereto and marked Exhibit "B". 10. 11. 12. 13. On or about September 19, 2002, Petitioner filed a Motion to Compel Production of Documents and Request for Sanctions and Counsel Fees. At that time, Respondent was pro se. Petitioner failed to respond to the Rule to Show Cause. By Order of Court dated January 31, 2003, Respondent was ordered to produce all documents requested by the Petitioner within twenty (20) days of the order. Respondent was not sanctioned nor ordered to pay counsel fees Petitioner incurred as a result of filing said Motion. A copy of said Order is attached hereto and marked Exhibit "C". On March 24, 2003, Delano M. Lantz, Esquire, entered his appearance on behalf of the Respondent. In a letter to Respondent's counsel dated April 24, 2003, Petitioner again requested that the Respondent produce the doczanents originally requested in the Request for Production of Documents. Respondent was given an additional twenty (20) days from that date to supply all the requested infonuation to Petitioner's counsel. On June 10, 2003, Respondent finally responded to Petitioner's Request for Production of Documents; however, only a few documents requested were provided. As of this date, Respondent has failed to fully cooperate and supply the requested information, in violation of this Court's Order of January 31, 2003. Accordingly, Petitioner requests this Honorable Court to order Respondent to supply any and all documents requested in Petitioner's Request for Production of Documents within ten (10) days. 14. Petitioner further requests the Court order the Respondent to pay counsel fees, costs and expenses recurred as a direct result o:~Respondent's continued failure to answer Petitioner's Request for Production of Documents. 15. In addition to the prior relief requested, Petitioner requests that the Court impose sanctions as determined by the Court for the Respondent's continued refusal to cooperate in this matter. WHEREFORE, Petitioner, Carmella Kindler, respectfally requests this Honorable Court to order the Respondent, Frank M. Kindler, to supply the information requested in Petitioner's Request for Production of Documents, order Respondent to pay for Petitioner's counsel fees, costs and expenses incurred as a result of Respondent's failure to answer Petitioner's Request for Production of Documents, and impose sanctions as determined by the Court. Respectfully submitted, JAMES, SMITH,~[ETTERICK & CONNELLY, LLP Hershey, PA 17033 (717) 533-3280 PA I.D. No. 15615 EXHIBIT "A" CARixfELLA KINDLER, Plaintiff VS. FRANK M. KINDLER, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLYAN~A : : No. 2002-731 : :'CML ACTION- LAW : IN DIVORCE I~EOU-EST FOR PRODUCTION OF DOCUMENTS AND THINGS TO: FRANK M. KINDLER 900 Kent Drive Mech~nlesburg, PA 17055 You are requested, ia accordance with Pa. R.C.P. 4009, to deliver to the office of the undersigned at Post Office Box 650, Hershey, Peunsylvani~ or otherwise make arrangements reasonably satisfactory to the undersigned, for his iuspeefior~ or examination, copies of the following doeumants, articles, and *hlngs, within twenty (20) days of the date of this Request For purposes of this Request, all computer records and information available on computer records or within computer programs should be included with this Request for Production. That is, this Request is not limited to documents or "hard copies" of reeorda, but should include computer records, tapes, disks, and other media as well as paper documents. 1. Copies of annual financial statements for FCK, Inc and Fitness Traders, Inc. for the last five years ending December 31, 1997 through December 31, 2001. 2. Copies of Federal and State Income Tax Returns for FCK, ][nc and Fitness Traders, Inc. for the last five years ending December 31, 1997 through December 31, 2001. 3. Copies of any and all forecasts or projections prepared for FCK, Inc. and Fitness Traders, Inc. ia the last five years. 4. Copies of any information relating to subsidiaries or other businesses in which FCIC, Inc. and Fitness Traders, Inc. has an ownership interest, including a list of such subsidiaries or other businesses and the financiai statements of such subsidiaries or other businesses for the last five years ending December 31, 1997 through December 31, 2001. 5. Copies of the list of cash accounts and any additional cash invesunents for FCK, Inc. and Fitness Traders, Inc. for the last five years ending December 31, 1997 through December 31, 2001. 6. Copies of the aged receivable listing for FCK, Inc. and Fitness Traders, Inc. for the last five years ending December 31, 1997 through December 31, 2001. 7. Copies of the list of items comprising inventory, such as quantity, description and cost as well as the information on inventory accounting policies for FCK, Inc. and Fitness Traders, Inc. for the last five years ending December 31, 1997 through December 31, 2001. g. Copies of the fixed asset register or depreciation schedules for FCK, Inc. and Fitness Traders, Inc. for the last five years ending December 31, 1997 through December 31, 2001. 9. Copies of the list of items comprising significant other asset baiances for FCK, Inc. and Fitness Traders, Inc. for the last five years ending December 31, 1997 through December 31, 2001. 10. Copies of the aged accounts payable listing for FCK, Inc. and Fitness Traders, Inc. for the last five years ending December 31, 1997 through December 31, 2001. 11. Copies of the ~nalysis of significant accrued liabilities for FCK, Inc. and Fitness Traders, Inc. for the last five years ending December 31, 19~'7 through December 31, 2001. 12. Copies of the notes payable and other Interest-bearing debt for FCK, Inc. and Fitness Traders, Inc. for the last five years ending December 31, 1997 through December 31, 2001. 13. Copies of the list of items comprising significant other liabil/ty balances for FCK, Inc. and Fitness Traders, Inc. for the last five years ending December 31, 1997 through December 31, 2001. 14. Copies of the schedule of officers' and directors' compensation for FCK, Inc. and Fitness Traders, Inc. for the last five years ending December 31, 1997 through December 31, 2001. 15. Copies of any schedules of key person life insurance held by FCK, Inc. and Fitness Traders, Inc. for the last five years. 16. Copies of any reports prepared by other professionals, including appraisals on specific assets, reports of other consultants and reports of independent auditors obtained by or for the benefit of FCK, Inc. and Fitness Traders, Inc. for the last five years. 17. Copies of any brochures, price lists, catalogs or other product information for FCI~ Inc. and Fimess Traders, Inc. for the last five years. 1 g. Copies of the list of' stockholders and partners, showing the amount of stock or the porcentage of stock owned by each for FCK, Inc. and Fitness Traders, Inc. presently and over the last five years. 19. Copies of the org~n~;,ation chart for FCK, Inc. and Fitness Traders, Inc. presently and over the last five years. 20. Copies of the details of transactions with related parties for FCK, Inc. and Fitness Traders, Inc. for the last five years ending December 31, 1997 through December 31, 2001. 21. Copies of any si~ificant leases and loans, including notes receivable and notes payable, for FCK, Inc. and Fitness Traders, Inc. for the last five years ending December 31, 1997 through December 31, 2001. 22. Copies of any stockholder or partnership agreements, including any stock option agreement, for FCK, Inc. and Fitness Traders, Inc. for the last five years ending December 31, 1997 through December 31, 2001. 23. Copies of any minutes of board of directors meetings, for FCK, Inc. and Fitness Traders, Inc. for the last five years ending December 31, 1997 through December 31,2001. 24. Copies of the any buy/sell agreements and/or ;my written offers to purchase or sell company stock, for FCK, Inc. and Fitness Traders, Inc. for the last five years ending December 31, 1997 through December 31, 2001. 25. Copies of key managers' employment contracts, for FCK, Inc. and Fitness Traders, Inc. for the last five years ending December 31,199'7 through December 31, 2001. 26. Copies of any major sale or purch~¢e contracts, for FCK, Inc. and Fitness Traders, Inc. for the last five years ending December 31, 1997 through December 31,200I. 27. Copies of the details of any litigation, including pending or threatened lawsuits, for FCIC, Inc. and Fitness Traders, Inc. for the last five years e~dlng December 3 I, 1997 through December 31, 2001. 28. Copies of the details of any employee benefit iplans, including pensions plans, profit sharing plans and employee stock option plans, for FCK, Inc. and Fitness Traders, Inc. for the last five years ending December 31, 1997 through December 31, 2001. 29. Copies of any attorneys' invoices/billing statements, for FCK, Inc. and Fitness Traders, Inc. for the last five years ending December 31,199'7 through December 31, 2001. 30. Copies of the details of transactions ~n the company's stock, for FCI~ Inc. and Fitness Traders, Inc. for the last five years ending December 31, 1997 through December 31, 2001. 31. Copies of a list of any patents, copyrights, trademarks of similar intangibles held by FCK, Inc. and Fitness Traders, Imc. for the last five years. 32. Copies of details regarding any contingent liabilities, including but not limlt~d to guarantees, warranties, and derivative financial instruments or any offbalance sheet fine-zing, incluaiug but not limited to letters of credit, for FCI~ Inc. and Fitness Traders, Inc. for the last five years eraiug December 31, 1997 through December 31, 2001. 33. Copies of the resumes or similar sumraary of the background and experience of all key personnel employed by FCIC, Inc. and Fitness Traders, Inc. 34. Copies of any and all other value indicators, including but not limited to property tax appraisals, for FCK, Inc. and Fitness Traders, Inc. for the last five years. 35. Copies of amy documents that evidence all non-taxable income not reported on the 2001 tax return received by Frank M. Kindler in the year of 2001. 36. Copies of the amortization schedules for the iollowing properties: Residential Real Estate, Juniper Township, Residential Rental, New Kingston, PA, Residential Real Estate, Elizabethville, PA, Commercial Peal Estate, 3460 Paxton Stteet, Harrisburg. iAtto~y for Plain~:f Hershey,'-l:rA 17033 (717) 533-328C, PA I.D. No. 15515 CARMELLA KINDLER, Plaintiff FRANK M. KINDLER, Defendant : IN THE COURT OF COMMON PLE~S : CUMBERLAND COUNTY, PENNSYLVANIA : No. 2002~731 : : CIVIL ACTION- LAW : IN DIVORCE - CI*.~TIFICATE OF SERVICE I, John J. Connelly,/Ir., Esquire, of James, Smith, Durkin & Connelly, attorney for the Pla/nfiff, Carmella Kindler, hereby certify that I have served a copy of the Request for Production of Documents on the following on the date and in the manner indicated below: U.S. MAJL. FIRST CLASS. PRE-PAID Frank M. Kindler 900 Kent Drive Mechanicsburg, PA 17055 DATE: JAIvIES, SMITH, DUR_KIN & CONNELLY Hershey, PA 17933 (717) 533-3280 PA I.D. No. 15615 EXHIBIT "B" John J, Co~n¢%]y, Jr. jj cjt(~s4k:~al.¢om Su]y 31, 2002 · Frank M..Kindler 900 Kent Drive Mechanicsburg, PA 17055 Dear Mr. Kindler: I forwarded to you on June 5, 2002 a Request for Production of Documents. I have not received your response. The rules of court require that you respond to this request w/thlu thirty (30) days of receipt. It has now been akno.st two months since you have had this request in your possession, however, you have done nothing to comply with the directive. Unless I receive a response from you within seven (7) days of the date of this correspondence, I will petition the court to order your compliance with thc Request for Production of Documents a=d will also request that the court award counsel fees for your failure to respond in a timely fashion. I trust you will understartd the importance of a response. IJC:has MAX d. SM~H, JR. ,~{AREN DURKiN DONNA M, MU[J.IN EDWARD P. SEEBER NElL W. YA~N cc: Carmella ICJndler EXHIBIT "C" CARMELLA KINDLER, Plaintiff FRANK M. KINDLER, Defendant IN THE COURT OF COMlvlON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2002-731 CIVIL ACTION - ]LAW IN DIVORCE. ORDER OF COURT NOW, this .~/.~-day of ~h~,v___, 200.'-I, upon consideration of the attached Motion, it is hereby ORDERED that the Rule which was issued on Defendant, Frank M. Kindler, in the above-captioned matter, on September 24, 2002 to show cause why the PlaintiflYs Motion to Compel Production of Documents and a Request for Sancticns and Counsel Fees should not be granted, is made absolute due to the Defendanfs failure to answer said Rule within twenty (20) days of the date of service. It is hereby ORDERED that the Defendant, Frank M. K/'ndier, shall within ~ of the entry of this Order, produce all documents previously requested by Plaintiff. Falling compliance with this Order, the Defendant shz!~, be precluded from offering any testimony or evidence at the trial of equitable distribution in this matter with regard to any of the assets or liabilities for which documentation is not produced pay counsel ,~o *" ,h~ mo;,.+~;~ +h ....... + ~ $~50 OO ...... ~ .... Cf +12,jS Ord_~r. BY THE COURT: {l. I~E~LE-Y OLER, CARMELLA KINDLEP~ Plaintiff FRANK M. KINDLER, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND 2OUNTY PENNSYLVANIA NO. 2002-731 CIVIL ACTION - LAW '-o -- IN DIVORCE MOTION TO MAKE RULE TO SHOW CAUSE ABSOLUTE AND NOW, comes the Plaintiff, Carmella Kindler, in flue above-captioned action, a~omeys, James, Smith, Durkin & Connelly LLP, and respectfully moves this Court to mal~e absolute the Rule to Show Cause which was issued in the above-captioned matter on September 24, 2002, and in support thereof, states the following: 1. Carmella Kindler, Plaintiff, filed a Motion to Compel Production of Documents and Request for Sanctions and Counsel Fees on or about September 19, 2002. 2. On September 24, 2002, tiffs Court issued a Rule on Frank M. Kindler, Defendant, in this action, to show cause why the Plaintiffs Motion to Compel Production of Documents and a Request for Sanctions and Counsel Fees should not be granted, returnable twenty (20) days from date of service. A copy of the Rule to Show Cause is attached hereto and marked Exhibit "A". 3. Delivery of said Rule was attempted on three (3) occasions by resla'icted, certified mail, however, service was noi effectuated. The Defendant, Frm~k M. Kindler, was finally served by restricted, certified mail on November 14, 2002, a copy of said Affidavit is attached hereto mhd co by her marked Exh/bit"B". 4. To date, the Defendant, Frank M. Kindler, has rtot answered the Rule. 5. The Plaintiff has incurred counsel fees in cormection with flue preparation of the Motion to Compel Production of Documents and the preparation of the within Motion in the mount of $650.00. WHEREFORE, the Plaintiff, Carmella Kindler, respectfully requests this Court to make the Rule to Show Cause absolute and order that the Defendant, Frank M. Kindler, supply the requested documents, impose sanctions and order the Defendant pay for Plaintiffs counseI fees, costs and expenses in this action as determined by the Court. BY: Respectfully submitted, JAMES, SMITH, DURKIN & CONNELLY LLP Jo" . '~mell ,3r.,Esquire . \ [1 A~or~e~rm;~ntiff Post Office]3-6x 650 Hershey, PA 17033 (717) 533-3280 PA I.D. No. 15615 VERIFICATION John J. Connelly, Jr., Esquire, represents that he is the attomey for the Plaintiff, Carmella Kindler, in this case and is familiar with the facts concernirtg the parties, and verifies that d~e statements made in the foregoing Motion to Make Rule to Show Cause Absolute m'e true and correct. He understands that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. EXHIBIT "A" CAKMELLA KINDLER, Petitioner FRANK M. KINDLER, Respondent JAMES Sm D .UalO~ i CONN~LLY, w~ ~,~.~.,, c.m,~.?,~^.r...~ .,,,,'m,,~ ,~ : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : No. 2002-731 : CIVIL ACTION - LAW : IN DIVORCE RULE TO SHOW CAUSE AND NOW, this ~,"~ day of September, 2002, a Rule is issued upon the Respondent, Frank M. Kindler, to show cause why the within Motion to Compel Production of Documents and the Request for Sanctions aud counsel fees should not be eranted. Said Rule is returnable within ~ days of service of this order. BY THE COURT, EXHIBIT "B" CARMELLA KINDLER, : Plaintiff : FRANK M. KINDLER, : Defendant : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Ns.: 2002- 731 CIVIL ACTION -- LAW IN DI¥ORCE AFFIDAVIT OF SERVICE; COMMONWEALTIq OF PENNSYLVANIA : ~ SS. COUNTY OF DAUPHIN : me, a Notary Public in and for the State and County aibrementioaed, John J. Com~elly, Jr., E~quire, who, being duly sworn according to law, deposes and says that a copy of the Rule to Show Cause and Motion to Compel Pro¢luction of Documents were served or the Defendant, Franl~ M. Kindler, on November 14, 2002, by certified mail number 7001 0360 0002 6074 6363 as evidenced by the ret'am receipt card attached hereto and made a part hereof. Swom to and subscribed before m;e this ~-~A/)t day of~2002. N©TAR~AL SEAL Jean L. Kosier, No~y Public City of Hummelstown,county of Dauphin My Commis$ien .Cxpire.~ Feb. 9, 2004 · COmblete Items 1,2, and 3, Also complete Item 4 If Restricted Delivery is desired. · Print your name and aP0reas on the reverse so that we can return the ca~ to you, a Attach this car~ to the back of the mallplece, or on the front if space permits. Frank M. Kindler 900 Kent Drive Mechanicsburg, PA 17055 I[A. Recaive~Dy (/=Use PrCnr C/early) F~-~]~ M. Kindle a. Date of Delivery ~,~.~/ I'~ .~em ~ Ac~drenee [] Yes ~N~ ~.~;ert~fled Mail~ Express Mail Registema ~-I Return Receipt for Merchandise insured Mall F3 C.O.D. 4. Res~ctecl Deliver:/? (Ext/a Fee) ~t~Yes Article NumDer (Col3y from service lapel) 7001 0360 0002 6074 6~63 PS Form 3811, July 1 999 Dom~ic Return Recaim 1~s95.0~.0052 CARMELLA KINDLE1L Plaintiff FRANK M. KINDLER, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND C. OUNTY, PENNSYLVANIA NO. 2002-731 CIVIL ACTION - LAW IN DIVORCE CERTIFICATE OF SERVICE I, John J. Connelly, Jr., Esquire, of James, Smith, Durldn & Connelly, attorney for the Plaintiff, Frank M. Kindler, hereby certify that I have served a copy of the Motion to Make Rule to Show Cause Absolute on the following on the date and in the mariner indicated below: U.S. MAIL~ FIRST CLASS~ PRE-PAID DATE: Frank M. Kindler 900 Kent Drive Mechanicsburg, PA 17055 JAMES, SMITH, DURKIN & CON'NELLY Post Office Box 650 Hershey, PA 17033 (717) 533-3280 PA I.D. No. 15615 CARMELLA KINDLER, Plaintiff/Petitioner VS. FRANK M. KINDLER, Defendant/Respondent : IN THE COLrRT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 2002-731 : : CIVIL ACTION - LAW : IN DIVORCE CERTIFICATE OF SERVICE I, John J. Cormelly, Jr., Esquire, of James, Smith, Diet, crick & Cormelly, attorney for the Petitioner, Carmella Kindler, hereby cgrtify that I have served a copy of the foregoing Motion to Compel and Request for Sanctions and Counsel Fees, on the fi>llowing on the date and in the manner indicated below: First Class United States Mail Delano M. Lantz Attorney for Respondent McNees, Wallace & Nm-icl: 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-115,5 DATE: JAMES, SMITH, DIETTERICK & CONNELLY By:~ 30hn . Co e , Jr., Esq. 'D A~ey (or Pe~tioner Post OfficL~l~o~ 650 Hershey, PA 17033 (717) 533-3280 PA I.D. No. 15615 CARMELLA KINDLER, Plaintiff FRANK M. KINDLER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-0731 CIVIL TERM ORDER OF COURT AND NOW, this 8th day of August, 2003, upon consideration of Plaintiff's Motion To Compel the Production of Documents and a Request for Sanctions and Counsel Fees, a Rule is hereby issued upon Defendant to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. John J. Connelly, Esq. P.O. Box 650 Hershey, PA 17033 Attorney for Plaintiff Delano M. Lantz, Esq. 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1156 Attorney for Defendant BY THE COURT, Wesley ~ Ji:.'~'- J. ~N¥~'¥,gNN~d XLb"._t,. ;~ :: . CARMELLA KINDLER, Plaintiff V. FRANK M. KINDLER, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 2002-731 CIVIL ACTION .. LAW IN DIVORCE ANSWER OF DEFENDANT, FRANK M. KINDLER, TO PLAINTIFF'S MOTION TO COMPEL THE PRODUCTION OF DOCUMENTS AND A REQUEST FOR SANCTIONS AND COUNSEL FEES And now comes Defendant, Frank M. Kindler, by and through his attorneys, McNees Wallace & Nurick LLC, and files the following Answer to the Motion to Compel the Production of Documents and a Request for Sanctions and Counsel Fees. 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. 10. Admitted in part and denied in part. A copy o1: the letter from Mr. Connelly to Mr. Lantz dated April 24, 2003 is attached. As indicated in that letter, Defendant supplied substantial information directly to Plaintiff. Further, by way of eadier letter dated February 13, 2003 sent directly to Mr. Kindler, Mr. Connelly narrowed his discovery requests to a list of nine categories. A copy of the February 13, 2003 letter and the list of nine categories of documents is attached as Exhibit "B." 11. Admitted in part and denied in part. Admitted that on June 10, 2003, additional documents were provided to Plaintiff. Denied that "only a few documents" were provided. 12. Denied as stated. Defendant has endeavongd to provide the information in his possession that is responsive to the discovery requests. Defendant is also providing the 2003 Depreciation Schedule to Plaintiff. 13. Denied that such an Order would be appropriate in that Defendant can only supply the documents that he has in his possession. 14. Admitted that the request is made; denied that it would be appropriate to award counsel fees under the circumstances. As set forth above, Defendant has supplied information in his possession that is responsive to the requests, and Plaintiff has sufficient information to value Defendant's business interests. 15. Admitted in part and denied in part. Admitted that the request is made. Denied that any sanctions would be appropriate. As set forth above, Defendant has provided documents, and Plaintiff has sufficient information to value Defendant's business interests. -2- WHEREFORE, Defendant, Frank M. Kindler, requests the Court to deny Plaintiff's Motion to Compel the Production of Documents and a Request for Sanctions and Counsel Fees. McNEES W,~.ACE & NURICK I~ Delano M. Lantz ~ ~/' /' '~ I.D. No. 21401 (~ Pamela L. Purdy I.D. No. 8!5783 100 Pine Street P.O. Box '1166 Harrisburcj, PA 17108-1166 (717) 237-5348 Date: August 26, 2003 Attorneys for Defendant -3- VERIFICATION I verify that the statements made in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that false statements are made subject to the penalties of 18 Pa. C.S. §4904, i'elating to unsworn falsification to authorities. Dated: t~uS+ 2~'~ Frank M. Kindler ~ICK ~r CONNELLY LLP John J. Connelly, Jr ~jcjr~jsdlegal.com April 24, 2003 Delano M. Lantz, Esquire 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Re: Kindler v. Kindler Dear Del: I am in receipt of your letter of April 21, 2003. My client acknowledges receipt of the information recently supplied by your client, however, the information he provided is inadequate. I originally forwarded a Request for Production of Documents in this case on June 5, 2002. As I am sure you are now aware, I pursued Mr. Kindler to provide the information in the form of Petitions with the court over a period in excess of six months. Since he was not represented by counsel, I finally forwarded a letter to him by certified and regular mail on February 13, 2003. I agreed to delay a Motion for Sanctions so long as he produced the items on the list attached to the correspondence (a copy of that correspondence and list is attached). The certified mail was returned, but he did receive the letter by regular mail. The information supplied to my client recently does not comply with the list attached to the February 13, 2003 letter nor is it even remotely close to the Request for Production of Documents originally sent to Mr. Kindler. Since you are now his counsel, I am forwarding a copy of the original Request for Production of Documents. Please supply the items requested within twenty (20) days of the date of this correspondence. You may omit forwarding any items your client recently supplied. I assume your client will provide you with a summary of the recent production of information. The original Request for Production of Documents was prepared after consulting with our forensic accountant who will be valuing the marital interest in the property. This was not a shotgun approach nor boiler plate and must be answered accurately and completely. MAILING ADDRESS PO BOX 650 HERSHEy, PA ~7033 TEL 7!7 b33 3280 GARy L JAMES MAX J SMTH' JR. JOHN d. CONNELLY' JR SCOTT A, DIETTERICK JAMES F SPADE SRYAN S WALK GREGORy K RICHARDS SUSAN M KADEL JARAD W HANDELMAN DONNA M MULLrN EDWARD p SEEBER NElL W YAHN KIMSER. Ly 'A DEW~T~ EXHIBIT "A" April 24, 2003 Page 2 of 2 Any information you need from my client will be supplied promptly. supply me with a specific list of those items. If you have any questions regarding the Request, please feel free to call. JJC/jlk Jo~ Connelly, Jr. cc: Carmella R. Kindler Enclosure Please .~vt~s SlvlF ~-<nq & CONNELLy LLp John J. ConIl~liy, Jr. jjcjr~jsd}egal.¢om February 13, 2003 _.RESTRICTED, CERTI~'IED AND FIRST CLASS MAll, Frank M. Kindler 900 Kent Drive Mechanicsburg, PA 17055 ear IVlr. Kind,er: I am enclosing a copy of the Court's most recent Order. You now have twenty (20) days fi.om the date of receipt of this correspondence and Order to comply with the Request for Production of Documents previously filed in this matter. I am aware my client has been discussing settlement with you and we are agreeable to streamlining the discovery process if we can secure some meaningful information. I am attaching to this letter a list of items we are requesting you produce within the twenty (20) day period. Upon receipt of these items, we will delay any further enforcement of the Request for Production of Documents m~til we can review the items and make a counter proposal to the offer you have made to my client. Please keep in mind the requested items are a bare minimum that is acceptable to us for the purpose of analyzing the marital assets. Should you have any questions regarding the contents of this correspondence, please advise. If you do not respond within twenty (20) days, further court action will be taken. 134 S~PE AVENUE HUMMELS~OWN, PA 17036 MAILING ADDRESS: PO. BOX 650 HERSHEY, PA 17033 TEL. 717533.3280 FAX 717533.2795 INFO@JSDLEGAL COM W'VV3N, JSDC COM GARY L. JAMES MAX J. SMITH, JR KAREN DURK~N JOHN J. CONNELLY, JR SCOTt A. DIETTERICK JAMES F. SPADE OF COUNSEL: JJC/jlk cc: Commie Kindler Enclosure EXHIElIT "El" LIST OF ITEMS TO BE SUPPLIED 2 Most recent Dauphin County assessment for the land and building located 3460 Paxton Street, Harrisburg, Pennsylvania as well as documentation of the current mortgage balance. Financial statements for World Gym and Fitness Trader for the following dates: (a) April 1, 2001 and (b) year-end 2002. Annual statements from any IR. As including, but not limited to, American Funds, Prudential Securities or Vista for the years 1992 through 2002. If there are accounts opened after 1992, please identify the year in which the account was open and all statements thereafter. If any rollovers have occurred from prior statements, please attach confirmation of the rollover. Your estimate of the increase in value of the real estate located at 257 Juniper Drive, 7 West Main Street and 21 Moore Street from the date of your marriage until April 13, 2001. Current balance on the mortgage for 900 Kent Drive, Mechanicsburg, Pennsylvania. Copies of all annual statements from life insurance policies from the date of your marriage until the date of your separation with corresponding cash values. Annual statements from your Merrill Lynch account and Templeton Fund from the date of marriage or date of acquisition through year-end 2002 as well as a list of all stocks owned by you, date acquired and number of shares from the date of your marriage through year-end 2002. Copies of statements for all accounts for the months of January through April 2002 including, but not limited to Commerce Bank, Merrill Lynch, Fulton Bank and E-Trade. In the event any of the above accounts were opened prior to marriage, please supply copies of the statements for tktose accounts as of March 1, 1992. 9. Provide all 1099s, W-2s or other evidence of income 15>r the tax year 2002. CERTIFICATE OF SERVICF The undersigned hereby certifies that on this date a copy of the foregoing document was served by first class mail, postage prepaid, upon the following: John J. Connelly, Jr., Esquire James Smith Durkin & Connelly LLP 134 Sipe Avenue Hummelstown, PA 17036 D'elano M Lant~7 Date: August 26, 2003 CARMELLA KINDLER, Plaintiff V. FRANK M. KINDLER, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.: 02-0731 CIVIL TERM CIVIL ACTION - LAW IN DIVORCE AFFIDAVIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA : : SS. COUNTY OF DAUPHiN : AND NOW, this ~,~ day of~, 2003, personally appeared before me, a Notary Public in and for the State and County aforementioned, John J. Connelly, Jr., Esquire, who, being duly swom according to law, deposes and says that a copy of the Rule to Show Cause/Order and Motion to Compel the Production of Documents and a Request for Sanctions and Counsel Fees was served on Defendant's counsel, Delano M. Lantz, Esquire, on August 15, 2003, by certified mail number 7002 0860 0004 2141 9963, as evidenced by the return receipt card attached hereto and made a part hereof. Swom to and subscribed before me this ~5/:~ day of~, 2003. ff Notary Pul~li~- { NOTARIAL SEAL Jean L Kosier, Notary Public City of Hummelstown,County of Dauphin My Commission~,..~Ex, p.!res Fe~bj 9, 2004~..,.._.1J CARMELLA KINDLER, Plaintiff VS. FRANK M. KINDLER, Defendant THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02 - 731 CIVIL IN DIVORCE ORDER OF COURT AND NOW, this~j day of ~~, 2004, the economic claims raised in the proceedings having been resolved in accordance with a marital settlement agreement dated January 29, 2004, the appointment of the Master is vacated and counsel can file a praecipe transmitting the record to the Court requesting a final decree in divorce. BY THE COURT, CC: ~ohn J. Connelly, Jr. Attorney for Plaintiff ~elano M. Lantz Attorney for Defendant Geor~ MARITAL SETTLEMENT AGREEMENT BY AND BETWEEN FRANK M. KINDLER CARMELLAKI~NDLER John J. Cormelly, Jr., Esquire JAMES, SMITH, DIETTERICK & CONNELLY P.O. Box 650 Hershey, PA 17033 Telephone: (717) 234-2616 Counsel for Carmella Kindler Delano M. Lantz, Esquire McNEES, WALLACE & NURICK P.O. Box 1166 Harrisburg, PA 17108-1156 Telephone: (717) 232-8000 Counsel for Frank M. Kindler MARITAL ~qETTI,EM'F, NT AC'-RIE, EM'F, NT TInS AGREEMENT, made this__~t~ day of ,2004 by and between FRANK M. KINDLER, of Cumberland Coun't~, Permsylvama, and CARMELLA KINDLER, of Cumberland County, Pennsylvania. WlTNESSETIt: WItEREAS, Frank M. Kindler (hereinafter called "Husband") currently resides at 900 Kent Drive, Mechanicsburg, Cumberland County, Pennsylvania 17055; WltEREAS, Carmella Kindler (hereinafter called "Wife") currently resides at 3405 Chestnut Street, Camp Hill, Cumberland County Pennsylvania 17011; WltEREAS, the parties hereto are husband and wife, having been lawfully married on March 14, 1992; WI[IEREAS, the parties have lived separate and apart since on or about April 13, 2001; WHEREAS, the parties hereto are desirous of settling fully and finally their respective financial and property rights and obligations as between each other, including, without limitation, the settling of all matters between them relating to the ownership of real and personal property, the support and maintenance of one another and, in general, the settling of any and all claims and possible claims by one against the other or against their respective estates. NOW TI-IEREFORE, in consideration of these premises, and of the mutual promises, covenants and undertakings hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by each of the parties hereto, Husband and Wife, each intending to be legally bound hereby, covenant and agl-ee as follows: 1. PERSONAI, RIGI-I'T8. Husband and Wife may, at all times hereafter, live separate and apart. Each shall be free from all control, restraint, interference and authority, direct or indirect by the other. Each may reside at such place or places a,~ he or she may select. Each may, for his or her separate use or benefit, conduct, carry on or engage in any business, occupation, 3. profession or employment which to him or her may seem advisable. Husband and Wife shall not molest, harass, disturb or malign each other, nor compel or attempt to compel the other to cohabit or dwell by any means or in any manner whatsoever with him or her. Neither party will interfere with the use, ownership, enjoyment or disposition of any property now owned by or hereafter acquired by the other. 2. AI~VICI~, O1~ COII1$[qEI,, Each party acknowledges that he or she has had the opportunity to receive independent legal advice fi.om counsel of his or her selection. Husband has secured legal advice f~om Delano M. Lantz, Esquire, his counsel, and Wife has secured legal advice fi.om John J. Cormelly, Jr., Esquire, her counsel. Each party fully understands the facts and his or her legal rights and obligations, and each party acknowledges and accepts that this Agreement is, in the circumstances, fair and equitable, and that it is being entered into fi:eely and voluntarily, and that the execution of this Agreement is not the result of any duress or undue influence, and that it is not the result of any improper or illegal agreement or agreements. In addition, each party understands the impact of the Pennsylvania Divome Code, whereby the court has the right and duty to determine all marital rights of the parties including divorce, alimony, alimony pendente lite, equitable distribution of all marital property or property owned or possessed individually by the other, counsel fees and costs of litigation and, fully knowing the salrte, each party hereto still desires to execute this Agreement acknowledging that the terms and conditions set forth herein are fair, just and equitable to each of the parties, and waives his and her respective right to have the Court of Common Pleas of Cumberland County, or any other court of competent jurisdiction, make any determination or order affecting the respective parties' rights to alimony, alimony pendente lite, support and maintenance, equitable distribution, counsel fees and costs of htigation. 3. DT~ql~T,O~qTIR~ O1, A~q~qi*~T~q. Each of the parties hereto acknowledges that he or she is aware of his or her right to seek discovery including, but not limited to, written interrogatories, motions for production of documents, the taking or oral depositions, the filing of inventories and all other means of discovery permitted under the: Pennsylvania Divorce Code or the Pennsylvania Rules of Civil Procedure. Each of the parties further acknowledges that he or she has had the opportunity to discuss with counsel the concept of marital property under Pennsylvania law 2 and each is aware of his or her right to have the real and/or personal property, estate and assets, earnings and income of the other assessed or evaluated by the courts of this Commonwealth or any other court of competent jurisdiction. The parties do hereby acknowledge that there has been full and fair disclosure to the other of b_is or her respective income, assets and liabilities, whether such are held jointly, in the name of one party alone or in the name of one of the parties and another individual or individuals. Each party agrees that any right to further disclosure, valuation, appraisal or enumeration or statement thereof in this Agreement is hereby specifically waived, and the parties do not wish to make or append hereto any further enumeration or statement. Specifically, each party waives the need for copies of bank statements, insurance policies, retirement plan statements or any other documentation. Each party warrants that he or she is not aware of any marital asset which is not identified in this Agreement. The parties hereby acknowledge and agree that the division of assets as set forth in this Agreement is fair, reasonable and equitable, and is satisfactory to them. Each of the parties hereto further covenants and agrees for himself and herself and his or her heirs, executors, administrators or assigns, that he or she will never at any time hereafter sue the other party or his or her heirs, executors, administrators or assigns in any action of contention, direct or indirect, and allege therein that there was a deinai of any rights to full disclosure, or that there was any fraud, duress, undue influence or that there was a failure to have available full, proper and independent representation by legal counsel. 4. I~[IITII~I, CONRI~,NT nIVOR(]~,, It is the intention of the parties, and the parties agree, that by tiffs Agreement they have resolved all ancillary economic issues related to the dissolution of their mamage and thus any divorce action with respect to these parties shall be limited to a claim for divorce only. On February 11, 2002, Wife filed a Divome Complaint indexed to No. 02~731 Civil Term in the Court of Common Pleas Cumberland County, Pennsylvania. The parties agree that they will each execute at the time of the execution of this Agreement, an Affidavit of Consent and Waiver of Notice of Intention to Request Entry of Divome Decree in order that counsel for Wife may finalize the divorce action in a timely fashion. Upon completion of the divorce action, counsel for Wife shall supply counsel for Husband with a copy of the Decree. 3 1. Wife a~ees to ~fer ~l her h~t, title and ~terest ~ ~d to ~e m~ re~ estate si~ated at 900 Kent Dhve, Mechmcsb~g, Cmb~l~d Co~, Pe~ylvm~ now titled · e n~e ofHusb~d ~d Wife ~ t~ts by ~e ~efies to ~e Husb~d ~d a~ees to execute a deed effecfing ~sf~ of~e title to ~e s~d prop~ upon presentation. ~e s~d deed sh~l be held ~ escrow by co,scl for Wife, Jo~ J. Co~elly, Jr., Esq~e, pen~g ~e re~c~g ~ set fo~ below. Wife ~er ac~owledges ~at she h~ no cl~m, h~t, ~terest, or title whatsoev~ s~d prop~ in ~e ~e. ~e p~ies c~mtly owe a bal~ce on ~ek mo~gage to Comm~ B~s. Husb~d a~ees ~at on or before M~ch 15, 2004 he will refin~ce s~d prope~ removing Wife's nme ~om my obligations related thereto. The pa~ent to Wife of the equitable potion of her ~terest ~ the s~d real estate Mll be ad~essed in P~a~aph 5I offs A~eement. Pending ~e completion of refin~c~g, Husb~d sh~l inde~ ~d hold Wife h~less on ~y obligations relating to s~d prope~ inclu~ng, but not limited to, mo~gage, t~es, instate, utilities or ~y o~er expenses related to ~e real estate. 2. Husb~d is c~ently the omer of~e following inves~t prope~es: a. 7 West Ma~ S~eet, New ~ngsto~, Pe~sylv~a; b. 257 Jmper Dhve, Valley ~een, E~s, Pe~sylvma; ~d c. 3460 P~ton S~eet, H~sb~g, Pe~sylv~a. These propeffies me o~ed eider individually by Husb~d or in conj~cfion wi~ o~ers ~d, with ~e exception of 3460 P~ton S~eet, were acq~red prior to ~e p~ies' m~age. By execution oft~s A~eement, Wife w~w~s ~y cl~m she may have to eider ~e increase in value or Husb~d's ~terest in the said prope~es acq~red prior to m~age or the m~tfl poffion of~e P~ton S~eet prop~. Husb~d ce~ifies that by sing ~s A~eement, Wife h~ no fin~cial obligations on ~y of~e prope~ies set fo~ in Pma~aph 5~ ~d Husb~d ~her a~ees to indemi~ ~d hold Wife h~less on ~ose prope~ies should ~y obligation rose. 3. Wife acquired, a~er ~e s~ation of~e p~ies, her real estate located at 4 3405 Chestnut Street, Camp Hill, Cumberland County, Pennsylvania, which shall remain her sole and separate property, free from any claim by Husband. Wife agrees to hold Husband harmless from any obligations with regard to this property. B. lh'~rni~hing~ and Par~nnalty. The parties agree that they have divided by agreement between themselves all furnishings and personalty located in the marital residence, including all furniture, furnishings, antiques, jewelry, rugs, carpets, household appliances and equipment. Accordingly, Husband shall retain sole and exclusive ownership of all furnishings and personalty currently in his possession, free and clear of any right, title, claim and/or interest of Wife and Wife shall retain all items of furnishings and personal property currently in her possession as her sole and separate property free and clear of any right, title, claim and/or interest of Husband. C. Matar Vehlele~, All motor vehicles use by the parties during the marriage were either owned or leased by the business interests owned by Husband. There are no marital vehicles existing at the time of the execution of this Agreement. D. I,if~ In~nrane~. Each of the parties shall retain as their sole and separate property, any life insurance policies in their names individually whether whole life or term insurance. E. Pan,inn and Retiremant llanafit~. Wife has a pension with the Public School Employees Retirement System as well as a deferred compensation plan with ING. Wife shall retain as her sole and separate property, all interest in the said plans. Husband has retirement investments in the form of IRAs with American Funds, Prudential Securities and Vista. Husband shall retain all of his retirement accounts acquired by Husband either prior to or during the parties' marriage. F. Bank/Inv~trnent ~eennnt~, Each of the parties shall retain any bank or investment accounts in their names individually or in conjunction with others. Each party waives any further claim to any accounts in each of the party's names individually. G. ~qtnek~, Husband has acquired over the period of the parties' marriage as well as prior to their marriage, interest in stocks including, but nol limited to, Merrill Lynch Mutual 5 Funds, Commerce Bank, Rite Aid, ZILA and Templeton Fund. The parties agree that in full satisfaction of Wife's equitable distribution claims regarding these accounts, Husband will transfer to Wife no later than March 10, 2004, 1,000 shares of Commerce Bank stock. The said shares to be transferred to Wife shall be the 1,000 shares most recently purchased by Husband. At the time of the transfer, Husband shall also identify to Wife the basis he has in the stock transferred to her. H. Rn~ines~ Interests. Husband shall retain any and all interest he has in the following business entities: 1. FCK, Inc. trading and doing business as DBA World Gym; and 2. Fitness Traders, Inc. Wife waives any claim she may have to the said business interests. Husband certifies that Wife has no financial responsibihty whatsoever on any loans relating to the entities and Husband further agrees to indemnify and hold Wife harmless on the said business interests. I. l,nmp ~qnm P~ym~nt_ In addition to the 1,000 shares of Commerce Bank stock mentioned in Paragraph 5G above, Husband agrees to pay to Wife the sum of $250,000.00 in cash, in full satisfaction of all equitable distribution claims. The said payment shall be made as follows: 1. $20,000.00 at the time of the execution of this Agreement; and 2. $230,000.00 on or before March 10, 2004. I. l~['i~eell~nerm~ Property, AS of the execution date of this Agreement, any and all property not specifically addressed herein shall be owned by the party to whom the property is titled; and if untitled, the party in possession. This Agreement shall constitute a sufficient bill of sale to evidence the transfer of any and all rights in such property from each to the other. J. Prn_nerIy tn Wife, The parties agree that Wife shall own, possess, and enjoy, free from any claim of husband, the property awarded to her by the terms of this Agreement. Husband hereby quitclaims, assigns and conveys to Wife all such property, and waives and relinquishes any and all rights thereto, together with any insurance policies covering that property, and any escrow accounts relating to that property. This Agreement shall constitute a sufficient bill of sale to evidence the transfer of any and all rights in such property from Husband to Wife. IC ~alll~. The parties agree that Husband shall own, possess, and enjoy, free from any claim of Wife, the property awarded to him by the terms of this Agreement. Wife hereby quitclaims, assigns and conveys to Husband all such property, and waives and relinquishes any and all rights thereto, together with any insurance policies covering that property, and any escrow accounts relating to that property. This Agreement shall constitute a sufficient bill of sale to evidence the transfer of any and all r~ghts in such property from Wife to Husband. L. ~IArit~l l)eht. With the exception of the joint mortgage on the marital residence to Community Banks, there are no other marital debts. M. I~ Each party represents and warrants to the other that he or she has not incurred any debt, obligation or other liability, other than those described in this Agreement, on which the other party is or may be liable. A liability not disclosed in this Agreement will be the sole responsibility of the party who has incurred or may hereafter incur it, and such party agrees to pay it as the same shall become due, and to indemnify and hold the other party and his or her property harmless from any and all debts, obligations and liabilities. N. Indemnifieatlnn nf Wil'a_ If any claim, action or proceeding is hereafter initiated seeking to hold Wife liable for the debts or obligations assumed by Husband under this Agreement, Husband will, at his sole expense, defend Wife against any such claim, action or proceeding, whether or not well-founded, and indemnify her and her property against any damages or loss resulting therefrom, including, but not limited to, costs of court and actual attorney's fees incurred by Wife in connection therewith. O. Ind~mnifieatltm af I-In~hnnd. If any claim, action or proceeding is hereafter initiated seeking to hold Husband liable for the debts or obligations assumed by Wife under this Agreement, Wife will, at her sole expense, defend Husband against any such claim, action or proceeding, whether or not well-founded, and indemnify him and his property against any 7 damages or loss resulting therefrom, including, but not limited to costs of court and actual attorney's fees incurred by Husband in connection therewith. p. Warranty. az tn l~ntnre Ohli_ontinna. Husband and Wife each represents and warrants to the other that he or she will not at any time in the future incur or contract any debt, charge or liability for which the other, the other's legal representatives, property or estate may be responsible. From the date of execution of this Agreement, each party shall use only those credit cards and accounts for which that party is individually liable and the parties agree to cooperate in closing any remaining accounts which provide for joint liabihty. Each party hereby agrees to indemnify, save and hold the other and his or her property harmless from any liability, loss, cost or expense whatsoever, including actual attorneys fees, incurred in the event of breach hereof. 6. WATVF, R f~l~' INq[-II~,ltTTANC, F, RTC~HT,q. Unless otherwise specifically provided in this Agreement, as of the execution date of this Agreement, Husband and Wife each waives all tights of inheritance in the estate of the other, any right to elect to take against the will or any trust of the other or in which the other has an interest, and each of the parties waives any additional rights which said party has or may have by reason of their marriage, except the fights saved or created by the terms of this Agreement. This waiver shall be construed generally and shall include, but not be limited to, a waiver of all rights provided under the laws of Pennsylvania, or any other jurisdiction. 7. WATVF, Ii OF BF, NF~FIC, TAIi¥ DF~,qlC'.NATION, Unless otherwise specifically set forth in this Agreement, each party hereto specifically waives any and all beneficiary tights and any and all rights as a surviving spouse in and to any asset, benefit or like program carrying a beneficiary designation which belongs to the other party under the terms of this Agreement, including, but not limited to, pensions and retirement plans of any sort or nature, deferred compensation plans, life insurance policies, annuities, stock accounts, bank accounts, final pay checks or any other post-death distribution scheme, and each party expressly states that it is his and her intention to revoke by the terms of this Agreement any beneficiary designations naming the other which are in effect as of the date of execution of this Agreement. If and in the event the other party continues to be named as beneficiary and no altemate beneficiary is otherwise designated, the beneficiary shall be deemed to be the estate of the deceased party. A. Wife and Husband acknowledge and agree that the property dispositions provided for herein constitute an equitable distribution of therr assets and liabilities pursuant to 03502 of the Divorce Code, and Wife and Husband hereby waive any right to division of their property except as provided for in this Agreement. Furthermore, except as otherwise provided for in this Agreement, each of the parties hereby specifically waives, releases, renounces and forever abandons any claim, right, title or interest whatsoever he or she may have in property transferred to the other party pursuant to this Agreement or identified in this Agreement as belonging to the other party, and each party agrees never to assert any claim to said property or proceeds in the future. The parties have divided between them to their mutual satisfaction, personal effects, household goods and furnishings and all other articles of personal property which have heretofore been used in common by them, and neither party will make any claim to any such items which are now in the possession or under the control of the other. Should it become necessary, each party agrees to sign any title or documents necessary to give effect to this paragraph, upon request. However, neither party is released or discharged from any obligation under this Agreement or any instnunent or document executed pursuant to this Agreement. Husband and Wife shall hereafter own and enjoy independently of any claim or right of the other, all items of personal property, tangible or intangible, acquired by him or her from the execution date of this Agreement with full power in him or her to dispose of the same fully and effectively for all purposes. B. Each party hereby absolutely and unconditionally releases and forever discharges the other and the estate of the other for all purposes from any and all rights and obligations which either party may have or at any time hereafter has for past, present or future support or maintenance, alimony pendente lite, alimony, equitable distribution, counsel fees, costs, expenses, and any other right or obligation, economic or otherwise, whether arising out of the marital relationship or otherwise, including all rights and benefits under the Pennsylvania Divorce Code of 1980, its supplements and amendments, as well as under any other law of any other jurisdiction, except and only except all rights and obligations arising under this Agreement or for the breach of any of its provisions. Neither party shall have any obligation to the other not expressly set forth herein. C. Except as set forth in this Agreement, each party hereby absolutely and unconditionally releases and forever discharges the other and his or her heirs, executors, administrators, assigns, property and estate from any and all fights, claims, demands or obligations arising out of or by virtue of the marital relationship of the parties whether now existing or hereafter arising. The above release shall be effective regardless of whether such claims arise out of any former or future acts, contracts, engagements or liabilities of the other or by way of dower, curtesy, widow's or widower's rights, family exemption or similar allowance, or under the intestate laws or the fight to take against the spouse's will, or the right to treat a lifetime conveyance by the other as testamentary or all other fights of a surviving spouse to participate in a deceased spouse's estate, whether arising under the laws of Pennsylvania, any state, commonwealth or territory of the United States, or any other country. D. Except for the obligations of the parties contained in this Agreement and such fights as are expressly reserved herein, each party gives to the other by the execution of this Agreement an absolute and unconditional release and discharge from all causes of action, claims, fights or demands whatsoever in law or in equity, which either party ever had or now has against the other. 9. PRF,,qF, RVATION OF RF,,CORII,q. Each party will keep and preserve for a period of four (4) years from the date of their divorce decree all financial records relating to the marital estate, and each party will allow the other party access to those records in the event of tax audits. 10. MODIFICATION, No modification, rescission, or amendment to this Agreement shall be effective unless in writing signed by each of the parties hereto. 11. ,IIF,,V¥,RARIIJTV, If any provision of this Agreement is held by a court of competent jurisdiction to be void, invalid or unenforceable, the remaining provisions hereof shall ~_0 nevertheless survive and continue in full force and effect without being impaired or invalidated in any way. 12. IIRF, iC~t~ If either party hereto breaches any provision hereof, the other party shall have the right, at his or her election, to sue for damages for such breach, or seek such other remedies or rehef as may be available to him or her. The non-breaching party shall be entitled to recover from the breaching party all costs, expenses and legal fees actually incurred in the enforcement of the rights of the non-breaching party. 13. WAIV~,R O1* RRlr, ACI-I, The waiver by one party of any breach of tiffs Agreement by the other party will not be deemed a waiver of any other breach or any provision of this Agreement. 14. NOTICE. Any notice to be given under this Agreement by either party to the other shall be in writing and may be effected by registered or certified mail, return receipt requested. Notice to Husband will be sufficient if made or addressed to the following: Frank M. Kindler 900 Kent Drive Mechanicsburg, PA 17055 and to Wife, if made or addressed to the following: Carmella Kindler 3403 Chestnut Street Camp Hill, PA 17011 Notice shall be deemed to have occurred upon the date received by the recipicmt. Each party may change the address for notice to him or her by giving notice of that change in accordance with the provisions of this paragraph. 15. APPI,ICIliI,i*, I,~W. All acts contemplated by this Agreement shall be construed and enforced under the substantive laws of the Commonwealth of Pennsylvania (without regard to the conflict of law rules applicable in Pennsylvania) in effect as of the date of execution of this Agreement. 16. I'~ATF, OF E'~F,f~TITION. The "date of execution" or "execution date" of this Agreement shall be defined as the date upon which the parties signed the Agreement if they do so on the same date, or if not on the same date, then the date on which the Agreement was signed by the last party to execute this Agreement. 17. F, lcI~,CTIVI?, BATik,. This Agreement shall become effective and binding upon both parties on the execution date. 18. F, Flq'F,C,T OF RF, C, ONCII,IATION~ ~OI--IARITATION OR DIVORC~F,. This Agreement shall remain in full force and effect and shall not be abrogated even if the parties effect a reconciliation, cohabit as husband and wife or attempt to effect a reconciliation. This Agreement also shall continue in full force and effect in the event of the parties' divorce. There shall be no modification or waiver of any of the terms hereof unless the parties in writing execute a statement declaring this Agreement or any term of this Agreement to be null and void. 19. glEADING~q NOT PART ~'}F AGRF, F~MI~NT. Any headings preceding the text of the several paragraphs and subparagraphs hereof are inserted solely for convenience of reference and shall not constitute a part of this Agreement nor shall they affect its meaning, construction or effect. 20. AGREEMENT liINDING ON PARTIF~,q AND I-IEIRS. This Agreement shall bind the parties hereto and their respective heirs, executors, administrators, legal representatives, assigns, and successors in any interest of the parties. 21. ENTIRI~ AC',RF~EME~NT, Each party acknowledges that he or she has carefully read this Agreement; that he or she has discussed its provisions with an attorney of his or her own choice, and has executed it voluntarily and in reliance upon his or her own attorney; and that this instrument expresses the entire agreement between the parties concerning the subjects it purports to cover and supersedes any and all prior agreements between the parties. This Agreement should be interpreted fairly and simply, and not strictly for or against either of the parties. 22. MI~TUAI~ COOPF, RATION. Each party shall, on demand, execute and deliver to the other any deeds, bills of sale, assignments, consents to change of beneficiary designations, 3.2 tax returns, and other documents, and shall do or cause to be done every other act or thing that may be necessary or desirable to effectuate the provisions and purposes of this Agreement. If either party unreasonably fails on demand to comply with these provisions, that party shall pay to the other party all attorney's fees, costs, and other expenses actually incurred as a result of such failure. 23. AC~RF, F,,ME, NT NOT TO Bl?, MF,,RGlg',I~. This Agreement may be incorporated into a decree of divorce for purposes of enforcement only, but otherwise shall not be merged into said decree. The parties shall have the fight to enforce this Agreement under the Divorce Code of 1980, as amended, and in addition, shall retain any remedies in law or in equity under this Agreement as an independent contract. Such remedies in law or equity are specifically not waived or released. IN WITNESS WHEREOF, the parties hereto set their hands and seals on the dates of their acknowledgments. c ' Frank M. Kindler WITI'rlES S . Carmella Kindler 13 MARITAL SETTLEMENT AGREEMENT BY AND BETWEEN FRANK M. KINDLER CARMELLA KINDLER Johrl J. Cormelly, Jr., Esquire JAMES, SMITH, DIETTERICK & CONNELLY P.O, Box 650 Hershey, PA 17033 Telephone: (717) 234-2616 Counsel for Carmella Kindler Delano M. Lantz, Esquire McNEES, WALLACE & NURICK P.O. Box 1166 Harrisburg, PA 17108-1156 Telephone: (717) 232-8000 Counsel for Frank M. Kindler MARITAl, SETTLEMENT AGREEMENT between FRANK M. KINDLER, of Cumberland CoUnJty, Pennsylvania, and CARMELLA KINDLER, of Cumberland Cotmty, Pennsylvania. WlTNESSETtt: WHEREAS, Frank M. Kindler (hereinafter called "Husband") currently resides at 900 Kent Drive, Mechanicsburg, Cumberland County, Pennsylvania 17055; WI:IEREAS, Carmella Kindler (hereinafter called "Wife") currently resides at 3405 Chestnut Street, Camp Hill, Cumberland County Pennsylvania 17011; WHEREAS, the parties hereto are husband and wife, having been lawfully married on March 14, 1992; WHEREAS, the parties have lived separate and apart since on or about April 13, 2001; ~VItEREAS, the parties hereto are desirous of settling fully and finally their respective financial and property rights and obligations as between each other, including, without limitation, the settling of all matters between them relating to the ownership of real and personal property, the support and maintenance of one another and, in general, the settling of any and all claims and possible claims by one against the other or against their respective estates. NOW THEREFORE, in consideration of these premises, and of the mutual promises, covenants and undertakings hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by each of the parties hereto, Husband and Wife, each intending to be legally bound hereby, covenant and agree as follows: 1. PERSONAL RIGI-ITfl. Husband and Wife may, at all times hereafter, live separate and apart. Each shall be free from all control, restraint, interference and authority, direct or indirect by the other. Each may reside at such place or places as he or she may select. Each may, for his or her separate use or benefit, conduct, carry on or engage in any business, occupation, profession or employment which to him or her may seem advisable. Husband and Wife shall not molest, harass, disturb or malign each other, nor compel or attempt to compel the other to cohabit or dwell by any means or in any manner whatsoever with him or her. Neither party will interfere with the use, ownership, enjoyment or disposition of any property now owned by or hereafter acquired by the other. 2. ADVICE OF COIINSEI,. Each party acknowledges that he or she has had the opportunity to receive independent legal advice from counsel of his or her selection. Husband has secured legal advice from Delano M. Lantz, Esquire, his counsel, and Wife has secttred legal advice from John J. Connelly, Jr., Esquire, her counsel. Each party fully understands the facts and his or her legal rights and obligations, and each party acknowledges and accepts that this Agreement is, in the circumstances, fair and equitable, and that it is being entered into fi'eely and voluntarily, and that the execution of this Agreement is not the result of any duress or undue influence, and that it is not the result of any improper or illegal agreement or agreements. In addition, each party understands the impact of the Pennsylvania Divorce Code, whereby the court has the right and duty to determine all marital rights of the parties including divorce, alimony, alimony pendente lite, equitable distribution of all marital property or property owned or possessed individually by the other, counsel fees and costs of litigation and, fully knowing the same, each party hereto still desires to execute this Agreement acknowledging that the terms and conditions set forth herein are fair, just and equitable to each of the parties, and waives his and her respective right to have the Court of Common Pleas of Cumberland County, or any other court of competent jurisdiction, make any determination or order affecting the respective parties' rights to alimony, alimony pendente lite, support and maintenance, equitable distribution, counsel fees and costs of litigation. 3. DISCLOSURE OF ASSETS. Each of the parties hereto acknowledges that he or she is aware of his or her right to seek discovery including, but not limited to, written interrogatories, motions for production of documents, the taking or oral depositions, the fil/ng of inventories and all other means of discovery permitted under the Pennsylvania Divorce Code or the Pennsylvania Rules of Civil Procedure. Each of the parties further acknowledges that he or she has had the oppommity to discuss with counsel the concept of marital property under Pennsylvania law 2 and each is aware of kis or her right to have the real and/or personal property, estate and assets, earnings and income of the other assessed or evaluated by the courts of this Commonwealth or any other court of competent jurisdiction. The parties do hereby acknowledge that them has been full and fair disclosure to the other of his or her respective income, assets and liabilities, whether such are held jointly, in the name of one party alone or in the name of one of the parties and another individual or individuals. Each party agrees that any right to further disclosure, valuation, appraisal or enumeration or statement thereof in this Agreement is hereby specifically waived, and the parties do not wish to make or append hereto any further enumeration or statement. Specifically, each party waives the need for copies of bank statements, insurance policies, retirement plan statements or any other documentation. Each party warrants that he or she is not aware of any marital asset which is not identified in this Agreement. The parties hereby acknowledge and agree that the division of assets as set forth in this Agreement is fair, reasonable and equitable, and is satisfactory to them. Each of the parties hereto further covenants and agrees for himself and herself and his or her heirs, executors, administrators or assigns, that he or she will never at any time hereafter sue the other party or his or her heirs, executors, administrators or assigns in any action of contention, direct or indirect, and allege therein that there was a denial of any rights to full disclosure, or that there was any fi'aud, duress, undue influence or that there was a failure to have available full, proper and independent representation by legal counsel. 4. MIITI~'AI, CONSENT DIVORCE. It is the intention of the parties, and the parties agree, that by this Agreement they have resolved all ancillary economic issues related to the dissolution of their marriage and thus any divorce action with respect to these parties shall be limited to a claim for divome only. On February 11, 2002, Wife filed a Divome Complaint indexed to No. 02-731 Civil Term in the Court of Common Pleas Cumberland County, Pennsylvania. The parties agree that they will each execute at the time of the execution of this Agreement, an Affidavit of Consent and Waiver of Notice of Intention to Request Entry of Divome Decree in order that counsel for Wife may finalize the divome action in a timely fashion. Upon completion of the divome action, counsel for Wife shall supply counsel for Husband with a copy of the Decree. 3 I~,QI lIT Ai~I1,1~ D1STR1BI~TION. A. Real l~stnte. 1. Wife agrees to transfer all her right, title and interest in and to the marital real estate situated at 900 Kent Drive, Mechanicsburg, Cumberland County, Pennsylvania, now titled in the name of Husband and Wife as tenants by the entireties to the Husband and agrees to execute a deed effecting transfer of the title to the said property upon presentation. The said deed shall be held in escrow by counsel for Wife, John J. Connelly, Jr., Esquire, pending the refinancing as set forth below. Wife further acknowledges that she has no claim, right, interest, or title whatsoever in said property in the future. The parties currently owe a balance on their mortgage to Community Banks. Husband agrees that on or before March 15, 2004 he will refinance said property removing Wife's name from any obligations related thereto. The payment to Wife of the equitable portion of her interest in the said real estate will be addressed in Paragraph 5I of this Agreement. Pending the completion of refinancing, Husband shall indewafify and hold Wife harmless on any obligations relating to said property including, but not limited to, mortgage, taxes, insurance, utilities or any other expenses related to the real estate. 2. Husband is currently the owner of the following investment properties: a. 7 West Main Street, New Kingstown, Pennsylvania; b, 257 Juniper Drive, Valley Green, Etters, Pennsylvania; and c. 3460 Paxton Street, Harrisburg, Pennsylvania. These properties are owned either individually by Husband or in conjunction with others and, with the exception of 3460 Paxton Street, were acquired prior to the parties' marriage. By execution of this Agreement, Wife waives any claim she may have to either the increase in value or Husband's interest in the said properties acquired prior to marriage or the marital portion of the Paxton Street property. Husband certifies that by signing this Agreement, Wife has no financial obligations on any of the properties set forth in Paragraph 5A2 and Husband further agrees to indemnify and hold Wife harmless on those properties should any obligation ahse. 3. Wife acquired, after the separation of the parties, her real estate located at 4 3405 Chestnut Street, Camp Hill, Cumberland County, Pennsylvania, which shall remain her sole and separate property, free from any claim by Husband. Wife agrees to hold Husband harmless from any obligations with regard to this property. B. Fnrnishin~,q and Personalty. The parties agree that theyhave divided by agreement between themselves all furnishings and personalty located in the marital residence, including all furniture, furnishings, antiques, jewelry, rugs, carpets, household appliances and equipment. Accordingly, Husband shall retain sole and exclusive o~vnership of all furnishings and personalty currently in his possession, free and clear of any right, title, claim and/or interest of Wife and Wife shall retain all items of furnishings and personal property currently in her possession as her sole and separate property free and clear of any right, title, claim and/or interest of Husband. C. Motor Vehicles. All motor vehicles use by the parties during the marriage were either owned or leased by the business interests owned by Husband. There are no marital vehicles existing at the time of the execution of this Agreement. D. I,ife Insnranee. Each of the parties shall retain as their sole and separate property, any life insurance policies in their names individually whether whole life or term insurance. E. Pension and Retirement Benefits. Wife has a pension with the Public School Employees Retirement System as well as a deferred compensation plan with ING. Wife shall retain as her sole and separate property, all interest in the said plans. Husband has retirement investments in the form of IRAs with American Funds, Prudential Securities and Vista. Husband shall retain all of his retirement accounts acquired by Husband either prior to or during the parties' marriage. F. Bank/Investment Aeennnts. Each of the parties shall retain any bank or investment accounts in their names individually or in conjunction with others. Each party waives any further claim to any accounts in each of the party's names individually. G. Stocks. Husband has acquired over the period of the parties' marriage as well as prior to their manSage, interest in stocks including, but not limited to, Merrill Lynch Mutual 5 Funds, Commerce Bank, Rite Aid, ZILA and Templeton Fund. The parties agree that in full satisfaction of Wife's equitable distribution claims regarding these accounts, Husband will transfer to Wife no later than March 10, 2004, 1,000 shares of Commerce Bank stock. The said shares to be transferred to Wife shall be the 1,000 shares most recently purchased by Husband. At the time of the transfer, Husband shall also identify to Wife the basis he has in the stock transferred to her. H. llnsiness Imere~t~. Husband shall retain any and all interest he has in the following business entities: 1. FCK, Inc. trading and doing business as DBA World Gym; and 2. Fitness Traders, Inc. Wife waives any claim she may have to the said business interests. Husband certifies that Wife has no financial responsibility whatsoever on any loans relating to the entities and Husband further agrees to indemnify and hold Wife harmless on the said business interests. I. Lnmp gnm Payment. In addition to the 1,000 shares of Commerce Bank stock mentioned in Paragraph 5G above, Husband agrees to pay to Wife the sum of $250,000.00 in cash, in full satisfaction of all equitable distribution claims. The said payment shall be made as follows: 1. $20,000.00 at the time of the execution of this Agreement; and 2. $230,000.00 on or before March 10, 2004. I. Miseellaneo;~s Property. As of the execution date of this Agreement, any and all property not specifically addressed herein shall be owned by the party to whom the property is titled; and if untitled, the party in possession. This Agreement shall constitute a sufficient bill of sale to evidence the transfer of any and all fights in such property from each to the other. J. Property to Wife. The parties agree that Wife shall own, possess, and enjoy, free from any claim of husband, the property awarded to her by the terms of this Agreement. Husband hereby quitclaims, assigns and conveys to Wife all such property, and waives and relinquishes any and all rights thereto, together with any insurance policies covering that property, and any escrow accounts relating to that property. This Agreement shall constitute a 6 sufficient bill of sale to evidence the transfer of any and all rights in such property from Husband to Wife. K. ProperB~ to l-In,band. The parties agree that Husband shall own, possess, and enjoy, free from any claim of Wife, the property awarded to him by the terms of this Agreement. Wife hereby quitclaims, assigns and conveys to Husband all such property, and waives and relinquishes any and all rights thereto, together with any insurance policies covering that property, and any escrow accounts relating to that property. This Agreement shall constitute a sufficient bill of sale to evidence the transfer of any and all rights in such property from Wife to Husband. L. Marlt~! Dobt. With the exception of the joint mortgage on the marital residence to Community Banks, there are no other marital debts. M. Liability not I,[qted. Each party represents and warrants to the other that he or she has not incurred any debt, obligation or other liability, other than those described in this Agreement, on which the other party is or may be liable. A liability not disclosed in this Agreement will be the sole responsibility of the party who has incurred or may hereafter incur it, and such party agrees to pay it as the same shall become due, and to indemnify and hold the other party and his or her property harmless from any and all debts, obligations and liabilities. N. Indernnifieatlon of Wife. If any claim, action or proceeding is hereafter initiated seeking to hold Wife liable for the debts or obligations assumed by Husband under this Agreement, Husband will, at his sole expense, defend Wife against any such claim, action or proceeding, whether or not well-founded, and indemnify her and her property against any damages or loss resulting therefrom, including, but not limited to, costs of court and actual attorney's fees incurred by Wife in connection therewith. O. Indemnification of H~band. If any claim, action or proceeding is hereafter initiated seeking to hold Husband liable for the debts or obligations assun~ed by Wife under this Agreement, Wife will, at her sole expense, defend Husband against any such claim, action or proceeding, whether or not well-founded, and indemnify him and his property against any 7 damages or loss resulting therefrom, including, but not limited to costs of court and actual attorney's fees incurred by Husband in connection therewith. P. Warranty a~ to Fntnre ObliEatlnn~. Husband and Wife each represents and warrants to the other that he or she will not at any time in the future incur or contract any debt, charge or liability for which the other, the other's legal representatives, property or estate may be responsible. From the date of execution of this Agreement, each party shall use only those credit cards and accounts for which that party is individually liable and the parties agree to cooperate in closing any remaining accounts which provide for joint liability. Each party hereby agrees to indemnify, save and hold the other and his or her property harmless from any liability, loss, cost or expense whatsoever, including actual attorneys fees, incurred in the event of breach hereof, 6. WAIVER OF INHERITANCE RIGHTS. Unless otherwise specifically provided in this Agreement, as of the execution date of this Agreement, Husband and Wife each waives all fights of inheritance in the estate of the other, any fight to elect to take against the will or any trust of the other or in which the other has an interest, and each of the parties waives any additional fights which said party has or may have by reason of their marriage, except the fights saved or created by the terms of this Agreement. This waiver shall be construed generally and shall include, but not be limited to, a waiver of all fights provided under the laws of Pennsylvania, or any otherjur/sdiction. 7. WAIVER OF BENEFICIARY DESIGNATION. Unless otherwise specifically set forth in this Agreement, each party hereto specifically waives any and all beneficiary fights and any and all rights as a surviving spouse in and to any asset, benefit or like program carrying a beneficiary designation which belongs to the other party under the terms of this Agreement, including, but not limited to, pensions and retirement plans of any sort or nature, deferred compensation plans, life insurance policies, annuities, stock accounts, bank accounts, final pay checks or any other post-death distribution scheme, and each party expressly states that it is his and her intention to revoke by the terms of this Agreement any beneficiary designations naming the other which are in effect as of the date of execution of this Agreement. If and in the event the 8 other party continues to be named as beneficiary and no alternate beneficiary is otherwise designated, the beneficiary shall be deemed to be the estate of the deceased party. 8. REI,EA~E OF CI,A1MS. A. Wife and Husband acknowledge and agree that the property dispositions provided for herein constitute an equitable distribution of their assets and liabilities pursuant to §3502 of the Divorce Code, and Wife and Husband hereby waive any right to division of their property except as provided for in this Agreement. Furthermore, except as otherwise provided for in this Agreement, each of the parties hereby specifically waives, releases, renounces and forever abandons any claim, right, title or interest whatsoever he or she may have in property transferred to the other party pursuant to this Agreement or identified in this Agreement as belonging to the other party, and each party agrees never to assert any claim to said property or proceeds in the future. The parties have divided between them to their mutual satisfaction, personal effects, household goods and furnishings and all other articles of personal property which have heretofore been used in common by them, and neither party will make any claim to any such items which are now in the possession or under the control of the other. Should it become necessary, each party agrees to sign any title or documents necessary to give effect to this paragraph, upon request. However, neither party is released or discharged from any obligation under this Agreement or any instrument or document executed pursuant to this Agreement. Husband and Wife shall hereafter own and enjoy independently of any claim or right of the other, all items of personal property, tangible or intangible, acquired by him or her from the execution date of this Agreement with full power in him or her to dispose of the same fully and effectively for all purposes. B. Each party hereby absolutely and unconditionally releases and forever discharges the other and the estate of the other for all purposes from any and all rights and obligations which either party may have or at any time hereafter has for past, present or future support or maintenance, alimony pendente lite, alimony, equitable distribution, counsel fees, costs, expenses, and any other right or obligation, economic or otherwise, whether arising out of the marital relationship or otherwise, including all rights and benefits under the Permsylvania Divorce Code of 1980, its supplements and amendments, as well as under any other law of any other jurisdiction, except and only except all rights and obligations arising under this Agreement or for the breach of any of its provisions. Neither party shall have any obligation to the other not expressly set forth herein. C. Except as set forth in this Agreement, each party hereby absolutely and unconditionally releases and forever discharges the other and his or her heirs, executors, administrators, assigns, property and estate fi.om any and all rights, claims, demands or obligations arising out of or by virtue of the marital relationship of the parties whether now existing or hereafter arising. The above release shall be effective regardless of whether such claims arise out of any former or future acts, contracts, engagements or liabilities of the other or by way of dower, curtesy, widow's or widower's rights, family exemption or similar allowance, or under the intestate laws or the right to take against the spouse's will, or the right to treat a lifetime conveyance by the other as testamentary or all other rights of a surviving spouse to participate in a deceased spouse's estate, whether arising under the laws of Pennsylvania, any state, commonwealth or territory of the United States, or any other country. D. Except for the obligations of the parties contained in this Agreement and such rights as are expressly reserved herein, each party gives to the other by the execution of this Agreement an absolute and unconditional release and discharge from all causes of action, claims, rights or demands whatsoever in law or in equity, which either party ever had or now has against the other. 9. PRE,qF, RVATION OF RECORI),q. Each party will keep and preserve for a period of four (4) years fi.om the date of their divorce decree all financial records relating to the marital estate, and each party MI1 allow the other party access to those records in the event of tax audits. 10. MODIFICATION. No modification, rescission, or amendment to this Agreement shall be effective unless in writing signed by each of the parties hereto. 11. ,qEVERAltII,ITY. If any provision of this Agreement is held by a court of competent jurisdiction to be void, invalid or unenforceable, the remaining provisions hereof shall nevertheless survive and continue in full force and effect without being impaired or invalidated in any way. 12. ltREACI-I. If either party hereto breaches any provision hereof, the other party shall have the right, at his or her election, to sue for damages for such breach, or seek such other remedies or relief as may be available to him or her. The non-breaching party shall be entitled to recover fi~om the breaching party all costs, expenses and legal fees actually incurred in the enforcement of the rights of the non-breaching party. 13. WAIVER OE ltREACFi. The waiver by one party of any breach of this Agreement by the other party will not be deemed a waiver of any other breach or any provision of this Agreement. 14. NOTICE. Any notice to be given under this Agreement by either party to the other shall be in writing and may be effected by registered or certified mail, return receipt requested. Notice to Husband will be sufficient if made or addressed to the following: Frank M. Kindler 900 Kent Drive Mechanicsburg, PA 17055 and to Wife, if made or addressed to the following: Carmella Kindler 3403 Chestnut Street Camp Hill, PA 1701 l Notice shall be deemed to have occurred upon the date received by the recipient. Each party may change the address for notice to him or her by giving notice of that change in accordance with the provisions of this paragraph. 15. APPIJCABI,F, I,AW. All acts contemplated by this Agreement shall be construed and enforced under the substantive laws of the Commonwealth of Pennsylvania (without regard to the conflict of law rules applicable in Pennsylvania) in effect as of the date of execution of this Agreement. 16. DATE OF EXECIITION. The "date of execution" or "execution date" of this Agreement shall be defined as the date upon which the parties signed the Agreement if they do so on the same date, or if not on the same date, then the date on which the Agreement was signed by the last party to execute this Agreement. 17. EFFECTIVE DATE. This Agreement shall become effective and binding upon both parties on the execution date· 18. EFFECT OF RECONCII,IATION, COHABITATION OR DIVORCE. This Agreement shall remain in full force and effect and shall not be abrogated even if the parties effect a reconciliation, cohabit as husband and wife or attempt to effect a reconciliation. This Agreement also shall continue in full force and effect in the event of the parties' divorce. There shall be no modification or waiver of any of the terms hereof unless the parties in writing execute a statement declaring this Agreement or any term of this Agreement to be null and void. 19. HEADINGS NOT PART OF AGREEMENT. Any headings preceding the text of the several paragraphs and subparagraphs hereof are inserted solely for convenience of reference and shall not constitute a part of this Agreement nor shall they affect its meaning, construction or effect. 20. AGREEMENT BINDING ON PARTIES AND HEIRS. This Agreement shall bind the parties hereto and their respective heirs, executors, administrators, legal representatives, assigns, and successors in any interest of the parties. 21. ENTIRE AGREEMENT. Each party acknowledges that he or she has carefully read this Agreement; that he or she has discussed its provisions with an attorney of his or her own choice, and has executed it voluntarily and in reliance upon his or her own attorney; and that this instrument expresses the entire agreement between the parties concerning the subjects it purports to cover and supersedes any and all prior agreements between the parties. This Agreement should be interpreted fairly and simply, and not strictly for or against either of the parties. 22. MI~TIIAI, COOPERATION. Each party shall, on demand, execute and deliver to the other any deeds, bills of sale, assignments, consents to change of beneficiary designations, tax returns, and other documents, and shall do or cause to be done every other act or thing that may be necessary or desirable to effectuate the provisions and purposes of this Agreement. If either party unreasonably fails on demand to comply with these provisions, that party shall pay to the other party all attorney's fees, costs, and other expenses actually incurred as a result of such failure. 23. SGREEMENT NOT TO BE MERGED. This Agreement may be incorporated into a decree of divome for purposes of enforcement only, but otherwise shall not be merged into said decree. The parties shall have the right to enforce this Agreement under the Divorce Code of 1980, as an~ended, and in addition, shall ret~fm any remedies in law or in equity under this Agreement as an independent contract. Such remedies in law or equity are specifically not waived or released. IN WITNESS WHEREOF, the parties hereto set their hands and seals on the dates of their acknowledgments. Frank M. Kindler Carmella Kindler CARMELLA KINDLER, PLAINTIFF FRAl~K M. KINDLER, DEFENDANT : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 02 731 CIVIL TERM : : CIVIL ACTION - LAW : IN DIVORCE AFFIDAVIT OF CONSENT 1. A Complaint in Divorce under Section 3301(c) of the Divorce Code was filed on February I 1, 2002. 2. The marriage of the Plaintiff and Defendant is irretrievably broken, and ninety days have elapsed fi.om the date of both the filing and service of the Complaint. 3. I consent to the entry ora final decree of divorce after service of Notice of Intention to request entry of the Decree. WAIVER OF NOTICE OF INTENTION TO REOUEST ENTRY OF A DIVORCE DECREE UNDER §3301(c) OF THE DIVORCE CODE 1. I consent to the entry ora final Decree of Divorce without notice. 2. I understand that I may lose rights concerning alimony, division of property, lawyer's fees or expenses ifI do not claim them before a divorce is granted. 3. I understand that I will not be divorced until a Divorce Decree is entered by the Court and that a copy of the Decree will be sent to me immediately after it is filed with the Prothonotary. I verify that the statements made above are tree and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. §4904, relating to unswom falsification to authorities. Date: Carmella Kindler, Plaintiff CARMELLA KINDLER, PLAINT~F FRA~ M. KINDLER, DEFENDANT : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 02 731 CIVIL TERM : : CIV1L ACTION - LAW : IN DWORCE ~FFIDAVIT OF CON,qENT 1. A Complaint in Divome under Section 3301(c) of the Divome Code was filed on February 11, 2002. 2. The marriage of the Plaintiff and Defendant is irretrievably broken, and ninety days have elapsed from the date of both the filing and service of the Complaint. 3. I consent to the entry of a final decree of divorce after service of Notice of Intention to request entry of the Decree. WAIVER OF NOTICE OF INTENTION TO REQI~,,~T ENTRY OF A DIVORCE DECREE UNDER ~3301 (e,) OF THE DIVORCE CODE I. I consent to the entry of a final Decree of Divorce without notice. 2. I understand that I may lose rights concerning alimony, division of property, lawyer's fees or expenses ifI do not claim them before a divorce is granted. 3. I understand that I will not be divorced until a Divorce Decree is entered by the Court and that a copy of the Decree will be sent to me immediately after it is filed with the Prothonotary. I verify that the statements made above are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. §4904, relating to unsworn falsification to authorities. CARMELLA KINDLER, PLAINTIFF FRANK M. KINDLER, DEFENDANT : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 02 731 CIVIL TERM : : CIVIL ACTION - LAW : 1N DIVORCE PRAECIPE TO TRANSMIT RECORD To the Prothonotary: Transmit the record, together with the following information, to the Court for entry of a Divorce Decree: 1. Ground for divorce: irretrievable breakdown under Section (XX) 3301(c) ( ) 3301(d) of the Divorce Code. Date and manner of service of the Complaint: March 25, 2002 by Acceptance of Service. 3. Complete either paragraph (a) or (b). (a) Date of execution of the Affidavit of Consent and Waiver of Counseling required by Section 3301(c) of the Divorce Code: by Plaintiff: January 29, 2004; Defendant: January 28, 2004. (b) (1) Date of execution of the Pla'mtiffs Affidavit required by Section 3301(d) of the Divorce Code: (2) Date of service of the Pla'mtift's Affidavit upon the Defendant: 4. Related claims pending: All claims of record have been settled pursuant to a Property Settlement Agreement dated January 29, 2004. 5. Date and manner of service of Notice of Intention to file Praecipe to Transmit Record, a copy of which is attached, if the decree is to be entered under Section 3301(d) of the Divorce Code: or, date of execution of Waiver of Notice of Intention to Request Entry of a Divorce Decree under Section 3301(c) of the Divorce Code: by Plaintiff: January 29, 2004; by Defendant: January 28, 2004, and, date of filing of the Waiver of Notice of Intention to Request Entty of a Divorce Decree: Both the Plaintiff's and Defendant's Waivers are being filed simultaneously with this Praecipe. JAMES, SMITH, DIETTERRICK & CONNELLY LLP Hershey, PA 17033 (717) 533-3280 PA I.D. No. 15615 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY STATE OF PENNA. CARMELLA KINDLER, Plaintiff No. 02 731 CIVIL TERM VERSUS FRANK M. KINDLER, Defendant DECREE IN DIVORCE AND NOW, DECREED THAT Carmella Kindler ,"l Ll' ~=~.~, , IT IS ORDERED AND , PLAINTIFF, AND Frank M. Kindler , DEFENDANT, ARE DIVORCED FROM THE BONDS OF MATRIMONY, THE COURT RETAINS JURISDICTION OF THE FOLLOWING CLAIMS WHICH HAVE BEEN RAISED OF RECORD IN THIS ACTION FOR WHICH A FINAL ORDEr HAS NOT YEt BEEN ENTERED; None The attached Marital Settlement Agreement dated January 29, 2004 is hereby incorporated, but not merged, into this Decree in Divorce BY T~E COURT: //~