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HomeMy WebLinkAbout04-6038Barbara Sumple-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, PA 17070 (717) 774-1445 FRANCES M. FENCEL, Plaintiff v. JOSEPH J. FENCEL, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. Dy - / 0.3~. ~~ CIVIL ACTION -LAW IN DIVORCE NOTICE TO DEFEND AND CLAIM RIGHTS YOU HAVE BEEN SUED IN COURT, if you wish to defend against the claims set forth in the following pages, you must take prompt action. You are warned that if you fail to do so the case may proceed without you and a decree of 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 rights important to you, including custody and visitation of your children. When the grounds for a divorce is indignities or irretrievable breakdown of the marriage, you may request marriage counseling. A list of marriage counselors is available in the Domestic Relations Office at the County Courthouse. 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 (717) 249-3166 Barbara Sumple-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, PA 17070 (717) 774-1445 FRANCES M. FENCEL, Plaintiff v. JOSEPH J. FENCEL, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL ACTION -LAW IN DIVORCE COMPLAINT IN DIVORCE 1. Plaintiffis FRANCES M. FENCEL, an adult individual residing at 508 DeublerRoad, Camp Hill, Cumberland County, Pennsylvania 17011. 2, Defendant is JOSEPH J. FENCEL, an adult individual residing at 195 East Lauer Lane, Camp Hill, Cumberland County, Pennsylvania 17011. 3. Both Plaintiff and Defendant have been bona fide residents in the Commonwealth of Pennsylvania for at least six (6} months prior to filing this complaint. 4. The Plaintiff and Defendant were married on July 13, 1985 in Mechanicsburg, Cumberland County, Pennsylvania. 5. There are two (2) minor children born of this marriage: Robin L. Fencel, born October 15, 1989; and Joseph J. Fencel, born January 15, 1994. 6. The parties separated on October 27, 2004. 7. There have been no prior actions for divorce or annulment between the parties. 8. Neither Plaintiff nor Defendant is in the military or naval service of the United States or its allies within the provisions of the Soldiers' and Sailors' Civil Relief Act of the Congress of 1940 and its amendments. 9. Plaintiffhas been advised that counseling is available and that Plaintiffhas the right to request that the court require the parties to participate in counseling. COUNT I -DIVORCE NO FAULT 10. The averments in paragraphs 1 through 9, inclusive, of Plaintiffs Complaint are incorporated herein by reference thereto. 11. The marriage is irretrievably broken and no possibility of reconciliation exists. WHEREFORE, Plaintiffrequests entry of a divorce decree in her favor in accordance with § 3301 of the Pennsylvania Divorce Code. COUNT II EQUITABLE DISTRIBUTION 12. The averments in paragraphs 1 through 11 of Plaintiffs Complaint are incorporated 2 herein by reference thereto. 13. The Plaintiff requests the Court to equitably divide, distribute or assign the marital property between the parties in such proportion as the Court deems just after consideration of alI relevant factors. WHEREFORE, Plaintiff requests this Court to equitably divide said property in accordance with Section 401(d) of the Pennsylvania Divorce Code. COUNT III SUPPORT, ALIMONY PENDENTE LITE AND ALIMONY 14. The averments in paragraphs 1 through 13, inclusive, of Plaintiffs Complaint are incorporated herein by reference thereto. 15. Plaintiffrequiresressonable support to adequately sustain herself with the standard of living established during the marriage. WHEREFORE, Plaintiff requests an award of Support, Alimony and Alimony Pendente Lite. WHEREFORE, Plaintiff, FRANCES M. FENCEL, prays this Honorable Court to enter judgment: A. Awarding Plaintiff a decree in divorce; B. Awarding Plaintiff support, alimony and alimony pendente liter 3 C. Equitably distributing the marital property; and D. Awarding other relief as the Court deems just and Dated: December 2, 2004 Barbara Sumple-Sullivan, Esquire Attorney for Plaintiff 549 Bridge Street New Cumberland, PA 17070-1931 (717) 774-1445 Supreme Court I.D. No. 32317 4 Barbara Sumple-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, PA 17070 (717) 774-1445 FRANCES M. FENCEL, Plaintiff v. JOSEPH J. FENCEL, Defendant 1N THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL ACTION -LAW IN DIVORCE AFFIDAVIT REGARDING COUNSELING 1. I have been advised of the availability of marriage counseling and understand that I may request that the Court require that my spouse and I participate in counseling. 2. I understand that the Court maintains a list of marriage counselors in the Domestic Relations Office, which list is available to me upon request. 3. Being so advised, I do not require that the Court require that my spouse and I participate in counseling prior to a divorce decree being handed down by the Court. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A Section 4904 relating to unsworn falsification to authorities. i Dated: ~ Z ~/ ~~ G'c,,<uz ~~ . ,~~ c~- FRANCESM.FENCEL Barbara Sumple-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, PA 17070 (717)774-1445 FRANCES M. FENCEL, Plaintiff v. JOSEPH J. FENCEL, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL ACTION -LAW IN DIVORCE VERIFICATION I, FRANCES M. FENCEL, hereby certify that the facts set forth in the foregoing COMPLAINT IN DIVORCE are true and correct to the best of my knowledge, information and belief. I understand that any false statements made herein are subject to penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn falsification to authorities. Dated: ~ 2 ~/ ~~ FRANCES M. FENCEL Lv ~ ~~ ~ V ` ~ ~ ~ ~ ~1 ~ ~~~ Qcrt ~ ~ ~ C v ~ ~~ ~~ ~ ~ ~ '~ ~ ~ (") v C.'7 C ". c ::a 'L~ --Ct ' =r~ ~~-~ ~ - r~ c.. -,~ .~.~ T~ r.-~ ~ N< ~, Barbara Sumple-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, PA 17070 (717)774-1445 FRANCES M. FENCEL, IN THE COURT OF COMMON PLEAS Plaintiff v. JOSEPH J. FENCEL, Defendant CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-6038 CIVIL ACTION - LAVJ IN DIVORCE ACCEPTANCE OF SERVICE I, John J. Connelly, Jr., Esquire, hereby accepts service and acknowledges receipt of the above- captioned Divorce Complaint ~~o^^n behalf of my client, Joseph J. Feiicel, having received said Complaint on the (~~ day of ~ZQxs~x~C?~'/~ , 2004. I hereby indicate I am authorized by my client to accept service on his behalf. (717) 533-3280 Supreme Court ID No. r_a c ' . ~": ~ 3 ~--, -a c--; -, i-E- c~ ~ ~ !- ,, .a .~, ~, ~' - ._ ~-- ` c.°~ , , 'i - C"; ~ - ,. FRANCES M. FENCEL, Plaintiff v. JOSEPH J. FENCEL, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND~COUNTY,PENNSYLVANIA NO. 04-6038 CIVIL ACTION LAW IN DIVORCE STIPULATION FOR ENTRY OF AN ORDER OF EXCLUSIVE POSSESSIOAT THIS AGREEMENT made the Lay ofe; 2005, by and between Frances M. Fencel an individual residing at 508 Deubler Road, Camp Hill, Cumberland County, Pennsylvania 17011, and Joseph J. Fencel, an adult individual residing at 195 East Lauer Lane, Camp Hill, Cumberland County, Pennsylvania 17011. WITNESSETH WHEREAS, the parties are husband and wife having married on July 13, 1985 in Mechanicsburg, Cumberland County, Pennsylvania; WHEREAS, during the marriage the parties resided in the marital home located at 508 Deubler Road, Camp Hill, Cumberland County, Pennsylvania 17011; WHEREAS, Defendant, Joseph J. Fencel, relocated from the marital home on or about October 27, 2004 and Plaintiff continues to reside therein with. the minor children; WHEREAS, in order to preserve the peaceful occupancy of the home by Plaintiff and the children, the parties agree to the following Stipulation. The recitals contained in the whereas clauses are incorporated herein by reference. 2. Plaintiff, Frances M. Fencel, shall have and retain exclusive possession of the marital home located at 508 Deubler Road, Camp Hill, Cumberland County, Pennsylvania 17011. Such exclusive possession shall remain in effect until modified by further order of court or written stipulation of the parties. Defendant is prohibited from entering onto said property, except with advance reasonable notice as established by agreement of the pzuties' counsel. Entry or presence upon said premises by Defendant shall be deemed trespassing. However, Defendant may pull into the driveway of the property to pick up the children, but shall not enter the home. Wife agrees to preserve and not transfer any and all personal property remaining in the home pending the express agreement of the parties. 4. The parties agree that this Agreement shall be entered as an Order of Court. IN WITNESS WHEREOF, the parties hereto, set forth theirs hands and seals. SIGNED, IN THE I a~~~~ ~ FRANCES M. FENCEL 1 i W NE J E . FE E Barbara Sumple-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, PA ] 7070 FRANCES M. FENCEL, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. JOSEPH J. FENCEL, Defendant CIVIL ACTION ~-DIVORCE NO. 04-6038 PLAINTIFF'S PETITION FOR EXCLUSIV E POSSESSION 1. Petitioner is Frances M. Fencel, an adult individual residing at 508 Deubler Road, Camp Hill, Cumberland County, Pennsylvania 17011. 2. Respondent is Joseph J. Fencel, an adult individual residing at 195 East Lauer Lane, Camp Hill, Cumberland County, Pennsylvania 17011. 3. The parties were married on July 13, 1985, and have resided as husband and wife in the home located at 508 Deubler Road, Camp Hill, Cumberland County, Pennsylvania 17011. 4, Respondent is 42 years old (DOB: 3/18/1962] and is employed with Cleveland Brothers in Harrisburg, Pennsylvania. 5. Petitioner is 40 years old (DOB: 2/11/1964) and has been a stay at home Mother. 6. Petitioner and Respondent are the natural parents of two (2) minor children, Robin L. Fencel (DOB: 10/15/1989) and Joseph J. Fencel (DOB: 1/15/1994). Respondent vacated the marital home on or about October 27, 2004 and the children have resided there with their Mother. Exclusive Use and Possession of Marital Residence Since Respondent has relocated from the marital residence, the parties have agreed that Petitioner shall have exclusive possession of the marital home in order to preserve the peaceful occupancy of the home. No Contact There is no need for Respondent to contact Petitioner about issues unrelated to the children. Controlling Law ] 0. Pa. R.C.P. 1531(a) provides in relevant part that the court shall issue a preliminary or special injunction only after written notice and hearing unless it appears to the satisfaction of the court that immediate and irreparable injury will be sustained before notice can be given or a hearing held, in which case the court may issue a preliminary or special injunction without a hearing or without notice. 11. The Divorce Code empowers the court to issue an order enjoining Respondent from taking any actions which will result in physical, emotional, psychological, or financial harm to Petitioner: In all matrimonial causes, the court shall have full equity power and jurisdiction and may issue injunctions or other orders which are necessary to protect the interests of the parties or to effectuate the purposes of this part and may grant such other relief or remedy as equity and justice require against eitheir party or against any third person over whom the court has jurisdiction and who is involved in or concerned with the disposition of the cause. 23 Pa. C.S.A. § 3323(f). 12. Petitioner ltas no adequate remedy at law. WHEREFORE, Petitioner requests the Court to enter an Order: a. Awarding her exclusive use and possession of the marital residence. b. Prohibiting Respondent from entering, or attempting to enter the marital residence. Respondent may pull in the driveway to pick up the children. c. Enjoining Respondent from contacting Petitioner, other than regarding the children. DATE: Resp 1~ mit d. v Bazbara Sample-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070-1931 (717) 774-1445 Supreme Court LD. 32317 Attorney f'or Plaintiff Barbara Sumple-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, PA 17070 (7171774-1445 FRANCES M.FENCEL, Plaintiff v. JOSEPH J. FENCEL, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -DIVORCE NO. CERTIFICATE OF SERVICE I, Barbara Sumple-Sullivan, Esquire, do hereby certiify that on this date, I served a true and correct copy of the Plaintiff's Petition for Exclusive Possession, in the above-captioned matter upon the following individual, by United States first-class mail, postage prepaid, addressed as follows: John J. Connelly, Jr., Esquire James Smith Dietterick & Connellly, LLP 134 Sipe Avenue Hummelstown, PA 17036 DATE: February 17, 2005 arbara Sumple-Sullivan, Esquire ((( 549 Bridge Street New Cumberland, PA 1 7070-1 93 1 (717) 774.1445 Supreme Court I.D. 32317 Attorney for Plaintiff C~ I D=EB 1 ~ [DU5~ FRANCES M. FENCEL, IN THE COURT OF COMMON PLEAS Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA v. N0. 04-6038 JOSEPH J. FENCEL, :CIVIL ACTION LAW Defendant IN DIVORCE ORDER ADOPTING STIPULATION OF PARTIES AND NOW, to wit, this Ly' day of few 2005, upon consideration of the -- - `" --, foregoing Stipulation for Entry of an Order of Exclusive Possession and on motion of Barbara Sumple-Sullivan, Esquire, counsel for Plaintiff, Frances M. Fencel, and John J. Connelly, Jr., Esquire, counsel for Defendant, Joseph J. Fencel, it is hereby ordered, adjudged and decreed that the terms, conditions and provisions of the attached Stipulation dated February 17, 2005 are adopted as an Order of Court as if set forth herein at length. BY THE COURT, q~ / a,Q~ o~.a ~~~ ~4;plW'~ h~B~~~OI Barbara Sumple-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, PA 17070 (717) 774-1445 FRANCES M. FENCEL, IN THE COURT OF COMMON PLEAS Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA v. JOSEPH J. FENCEL, Defendant NO. 04-603 8 CIVIL ACTION -LAW IN DIVORCE AFFIDAVIT OF CONSENT A Complaint in Divorce under Section 3301(c) of the Divorce Code was filed on December 2, 2004. Z. The marriage of the Plaintiff and Defendant is irretrievably broken. Ninety days have elapsed since 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. 4. I understand that I may lose rights concerning alimony, division of property, lawyer's fees or expenses if I do not claim them before a divorce is granted. 5. I verify that the statements made in this affidavit are true and correct. I understand that false statements are made subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn falsification to authorities. DATE: ~~35~~ ~~~~.~~ FRANCES M. FENCEL r-> ~ ~ C~. ~ .- , ~, , ~ ~--~i T s_ .~ r-- :' .,.~ _ i y f_~ .. ~ f:t ~...; . b ~ ~ V s.. ~ Gw Barbara Sumple-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, PA 17070 (717) 774-1445 FRANCES M. FENCEL, Plaintiff v. JOSEPH J. FENCEL, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-6038 CIVIL ACTION -LAW IN DIVORCE WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIVORCE DECREE UNDER 33301(c) OF THE DIVORCE CODE 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 if I 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 in this affidavit are true and correct. I understand that false statement herein are made subject to the penalties of 18 Pa.C.S. 34904 relating to unsworn falsification to authorities. DATE: GI/~-S~~ ,JAI GL u ~2.-`~ , ~/ : K ~_ FRANCES M. FENCEL ~ ~ ` i .°~ - ~~ 3.y, ... .~A {~~ _~ Lt.. 5 ~..~ {/`F ` ~.•{ r^~ ,V^ ~j ~:- ~i ~y ~ ~ Barbara Sumple-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, PA 17070 (717) 774-1445 FRANCES M. FENCEL, IN THE COURT OF COMMON PLEAS Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA v. JOSEPH J. FENCEL, Defendant NO. 04-6038 CIVIL ACTION -LAW IN DIVORCE AFFIDAVIT OF CONSENT A Complaint in Divorce under Section 3301(c) of the Divorce Code was filed on December 2, 2004. 2. The marriage of the Plaintiff and Defendant is irretrievably broken. Ninety days have elapsed since 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. 4. I understand that I may lose rights concerning alimony, division of property, lawyer's fees or expenses if I do not claim them before a divorce is granted. I verify that the statements made in this affidavit are true and correct. I understand that false statements are made subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn falsification to authorities. DATE: ! z ~ ©~ J S PH J. FE C ~ Cy G ~ ~ %1('~' C] r, _ - T_ , ~ t~Z fi T ~ .t`__. t _ h ~ i wl '~ V.j _! __.._ _. ~.. ~Y.{ ~J ~...f A. rte`- ~f.~ --r: r C,~' w ,ray ;"Y'9 Wy ---i Cis "e Barbara Sumple-Sullivan, Esquire Supreme Caurt #32317 549 Bridge Street New Cumberland, PA 17070 (717) 774-1445 FRANCES M. FENCEL, IN THE COURT OF COMMON PLEAS Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA v. JOSEPH J. FENCEL, Defendant NO. 04-6038 CIVIL ACTION -LAW IN DIVORCE WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIVORCE DECREE UNDER ~3301(c) OF THE DIVORCE CODE 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 if I 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 in this affidavit are true and correct. I understand that false statement herein are made subject to the penalties of 18 Pa.C.S. 34904 relating to unsworn falsification to authorities. DATE: Z- 5 J H J. EN ~ ~"= ~ ~ - c~., c° ° ry '~ ' "'~~ . .r.~ " ~ (~ "'~ Barbara Sumple-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, PA 17070 (717) 774-1445 Counsel for Petitioner FRANCES M. FENCEL, Plaintiff (Petitioner) v. JOSEPH J. FENCEL, Defendant (Respondent) IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET N0.04-6038 IN DIVORCE MOTION FOR ENFORCEMENT 1. Petitioner is Plaintiff, Frances M. Fencel, an individual residing at 508 Deubler Road, Camp Hill, Cumberland County, Pennsylvania 17011. 2. Respondent is Defendant, Joseph J. Fencel, an individual residing at 4834 E. Trindle Road, Apt. 3, Mechanicsburg, Cumberland County, Pennsylvania 17050. 3. The parties were married July 13, 1985 and separated October 27, 2004. 4. The parties entered into a comprehensive Marital Settlement Agreement dated September 25, 2006, settling all matters regarding property and all other rights in accordance with the Domestic Relations Code. A true and correct copy of the Marital Settlement Agreement is attached hereto as Exhibit "A" and is incorporated herein by reference. Respondent is in breach of the terms of this Agreement. A. Failure to Execute Stipulation for Qualified Domestic Relations Order regarding AMP/TYCO Pension. 5. Paragraph E(a), page 10 of the Marital Settlement Agreement provides that the parties agree that all benefits the Respondent has through his AMP/TYCO Pension Plan shall be shared equally between the parties and pursuant to the parties' stipulation, a Qualified Domestic Relations Order shall be drafted to effectuate this division. 6. The parties further agreed to use Mr. Harry Leister of Conrad Siegel Actuaries to draft the Stipulation for Entry of a Qualified Domestic Relations Order and to equally share the expense incident to Mr. Leister's work. 7. A Qualified Domestic Relations Order drafted by Mr. Leister was forwarded to Respondent's counsel by letter dated October 25, 2006. This draft was then slightly amended at the request of the Plan, corrected by Mr. Leister, and forwarded for execution on November 21, 2006. 8. Respondent has refused to execute the Stipulation for the Qualified Domestic Relations Order in accordance with the terms of the Marital Settlement Agreement. Respondent has failed to cooperate with his counsel despite repeated requests as indicated by Mr. Connelly. 9. While the parties contemplated immediate divorce and/or entry of the decree prior to December 31, 2006, this cannot occur since it will jeopardize the surviving spouse status for Petitioner under the AMP/TYCO Pension. B. Failure to execute paperwork necessary to effectuate Rollover to Wife from Fidelity Investment Account. 10. Additionally, Paragraph E(c), page 11 of the Marital Settlement Agreement provides that Petitioner is to receive Twenty-Nine Thousand Fifty-Six Dollars and 10/10 ($29,056.10) as of January 1, 2006, plus any increase or decrease from January 1, 2006 to the date of distribution, from Respondent's 401(k) through Fidelity. 11. In order to effectuate the .rollover from the Fidelity Investment 401(K), Respondent is required to initiate the process by executing a Letter of Instruction to Fidelity Investments in order to effectuate the transfer to Plaintiff. Counsel for Plaintiff provided Respondent's counsel with said letter. 12. Respondent was reminded of this requirement by letters dated October 25, 2005 and November 22, 2006. Numerous phone contacts have also been made between counsel which have proven fruitless but which lead Petitioner's counsel to believe Mr. Connelly may have no success in securing Respondent's completion of the terms of the Agreement. 13. Respondent has refused to provide a Letter of Instruction to allow for the transfer. It is believed, and therefore averred, that as with the execution of the Stipulation for Qualified Domestic Relations Order, Respondent will continue to refuse to execute the documents necessary to complete the terms of the Marital Settlement Agreement. 14. Both parties' Affidavits of Consent and Waivers of Notice of Intention to Request Entry of a Divorce Decree were each filed on October 24, 2006. 15. A Praecipe to Transmit the Record is prepared but is being held until the Stipulation and Letter of Instruction are received so as to avoid loss of any status for Petitioner on Respondent's pension with AMP/TYCO. 16. Petitioner is requesting the Stipulation for Qualified Domestic Relations Order attached hereto as Exhibit "B" be executed by Respondent or entered as an Order of Court based on the terms set forth in the parties' Marital Settlement Agreement. 17. Petitioner is requesting Respondent be required to execute and submit a Letter of Intention to Petitioner's counsel within five (5) days of an Order and, in the event that this does not occur, the court enter an order mandating the transfer to Petitioner. 18. Petitioner is fearful that Respondent will liquidate the sums in the 401(x) due to his belligerent noncompliance of the Agreement. 19. Respondent is further known to be experiencing significant personal (substance abuse) issues and fmancial difficulties which increases the likelihood that he might dissipate the Fidelity monies. 20. Respondent has made significant withdrawals from the Fidelity account in the past. 21. Petitioner requests that an interim order be entered which freezes the Fidelity Investment Account of Respondent. C. Failure to Pay Actuary 22. Finally, pursuant to paragraph E of the parties' Marital Settlement Agreement, the costs of drafting the QDRO were to be shared equally. 23. Conrad Siegel, Inc. has presented a bill in the amount of Five Hundred Fifty Dollars ($550.00) for the work of Mr. Leister. 24. Respondent is obligated to pay one-half or Two Hundred Seventy Five Dollars ($275.00). 25. Petitioner fears Respondent will not make the payment. 26. Petitioner requests an order be entered requiring Respondent to make the payment to Mr. Leister within five (5) days. D. Claim for Additional Counsel Fees incurred by Petitioner 27. Petitioner has incurred attorney's fees and costs in attempting to secure Respondent's compliance with the Marital Settlement agreement. 28. Paragraph 12, page 7, provides that upon breach of any provision of the Marital Settlement Agreement, 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, and the party breaching this contract shall be responsible for payment of reasonable legal fees and costs incurred by the other in enforcing their rights under this Agreement." 29. As a result of Respondent's failure to execute the necessary documents to conclude the terms of the Agreement, Petitioner has incurred additional counsel fees and costs. Petitioner requests an award of counsel fees against the Respondent in the amount of Five Hundred Dollars ($500.00). WHEREFORE, Petitioner requests this Honorable Court: (1) Require Respondent to execute the Stipulation for Qualified Domestic Relations Order attached hereto as Exhibit "B"within five (5) days of an Order or enter same as an Order of Court; (2) Require Respondent to submit the Letter of Instruction to Petitioner's counsel within five (5) days of an Order or instruct Fidelity Investments to rollover the sum to Petitioner in accordance with the Agreement; (3) Order Respondent to pay one-half (1 /2) of Mr. Leister's costs within ten (10) days of the date of an Order; and (4) Order reimbursement of counsel fees of Five Hundred Dollars ($500.00) within ten (10) days of the date of an Order. DATE` ~ 2006 Respectfully Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070-1931 (717) 774-1445 Supreme Court I.D. 32317 Attorney for Petitioner Exhibit A MARITAL SETTLEMENT AGREEMENT THIS AGREEMENT, made this O~J~day of September, 2006, by and between Joseph J. Fencel, hereinafter referred to as "HUSBAND," and Frances M. Fencel, hereinafter referred to as "~7VIFE." WITNESSETH, That: WHEREAS, the parties hereto are HUSBAND and WIFE, having been lawfully joined in marriage on July 13, 1985 in Mechanicsburg, Cumberland County, Pennsylvania; WHEREAS, two (2) children were born of this marriage being Robin L. Fencel (DOB: 10/15!1989) and Joseph J. Fencel (DOB: 1/15/1994); WHEREAS, it is the intention of the parties to settle fully and finally their respective financial and property rights and obligations as between each other arising out of the marriage relationship or otherwise, including without limitation (1 }the settling of all matters between them relating to the ownership of real and personal property; (2) the settling of all matters between them relating to the past, present and future support and/or maintenance of HUSBAND and WIFE; and (3) the settling of matters related to the support of their minor children; and (4) the settling of all matters between them relating to any and all rights, titles and interests, claims and possible claims in or against the estate of the other. NOW THEREFORE, with the foregoing recitals being hereinafter incorporated by reference and deemed an essential part hereof in consideration of the foregoing recitals, the mutual promises, covenants and undertakings herein set forth, and for good and valuable consideration, receipt of which is hereby acknowledged by each of the parties hereto, Final - 9(25/06 HUSBAND and WIFE, each intending to be legally bound hereby, covenant and agree as follows: SECTION I GENERAL PROVISIONS 1. ADVICE OF COUNSEL HUSBAND and WIFE declare that they have each had a full and fair opportunity to obtain independent legal advice of counsel of their selection. HUSBAND has been independently represented by John J. Connelly, Jr., Esquire. WIFE has been independently represented by Barbara Sumple-Sullivan, Esquire. Each party further declares that they are executing this Agreement freely and voluntarily, having obtained such knowledge and disclosure of their legal rights and obligations. Each party acknowledges that this Agreement is fair and equitable and is not the result of any fraud, coercion, duress, undue influence or collusion. 2. PERSONAL RIGHTS HUSBAND and WIFE may and shall, at all times hereafter, live separate and apart. Each shall be free from all control, restraint, interference or authority, direct or indirect, by the other in all respects as if she or he were unmarried, except as may be necessary to carry out the provisions of this Agreement. Each may reside at such place or places as she or he may select. Each may, for his or her separate use or benefit, conduct, carry on and engage in any business, occupation, profession or employment which to him or her may seem advisable. This provision shall not be taken, however, to be an admission on the part of either HUSBAND or WIFE of the lawfulness of the causes, which led to, or resulted in, the continuation of their living apart. Final - 9/25/06 2 HUSBAND and WIFE shall not molest, harass, or malign the other or the respective families of each other, nor compel the other to cohabit or dwell in any manner with him or her, nor in any way interfere with the peaceful existence, separate from each other. 3. FINANCIAL DISCLOSURE The parties have fully complied with the other's requests for disclosure of income, assets, liabilities, holdings and estate. Each parry wazrants that the information provided has fully and accurately described the extent of his or her holdings. Each of the parties acknowledge that he or she is awaze of his or her right to seek discovery including, but not limited to, written interrogatories, motions for document production, depositions, and other means of discovery available through the Pennsylvania Rules of Civil Procedure. The parties acknowledge that they have had the right to have property fully appraised. Each parry is fully satisfied that no additional information is necessary for the execution of this Agreement. 4. MUTUAL CONSENT DIVORCE The parties intend to secure a mutual consent, no fault divorce pursuant to the provisions of Section 3301(c) of the Divorce Code of 1980, as amended and will execute the documents necessary to effectuate a divorce under those provisions concurrently with the execution of this Agreement. The parties agree that the Affidavits of Consent and the Waivers of Notice shall be signed simultaneously with this Agreement and the divorce promptly concluded. Final - 9/25/06 5. SUBSEQUENT DIVORCE A decree in divorce, entered by the Court of Cumberland County, shall not suspend, supersede or affect the terms of this Agreement. This Agreement, and the terms and conditions. contained herein, as well as the enforcement of said terms and conditions, shall not be contingent upon the granting of a Divorce Decree to either party by the Court of Common Pleas of Cumberland County, Pennsylvania, or any other Court of competent jurisdiction. This Agreement shall remain in full force and effect even if the parties reconcile, cohabit as HUSBAND and WIFE, or attempt reconciliation. This Agreement shall continue in full force and effect and there shall not be a modification or waiver of any of the terms hereof unless the parties, in a writing signed by both parties, execute a statement declaring this Agreement or any term of this Agreement to be null and void. Both parties hereto agree that this Agreement may be incorporated by reference but shall not be deemed merged into any judgment or decree for divorce obtained by either party. b. OTHER DOCUMENTATION HUSBAND and WIFE covenant and agree that upon request of the other party, they will forthwith execute and deliver to the other party, any and all written instnunents, assignments, releases, satisfactions, deeds, notes or such other writings as may be necessary or desirable for the proper effectuation of this Agreement. 7. MUTUAL RELEASES Except as otherwise expressly provided by this Agreement, A. 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 Final - 9/2S/06 4 either may have or at any time hereafter have 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 19&0, its supplements and amendments, as well as under any other law of any other jurisdiction, except and only except all rights, agreements and obligations of whatsoever nature arising or which may arise under this Agreement or for the breach of any provision thereof. Neither parry shall have any obligation to the other not expressly set forth herein. B. Each party hereby absolutely and unconditionally releases and forever discharges the other and his or her heirs, executors, adnnistrators, assigns, property and estate from any and all rights, claims, demands or obligations arising out of or by virtue of the marital relationship of the parties or otherwise, 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 or the other or by way of dower, curtesy, widow'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 or the United States, or any other country. It is expressly understood, however, that neither the provisions of this release nor the subsequent entry of a divorce decree are intended to defeat the right of either party to receive any insurance proceeds at the death of the other of which she or he is the named beneficiary (whether the beneficiary designation was made prior or subsequent to execution hereof), nor to defeat the right of either party to receive any legacy, bequest or residuary portion of the other's estate under his or her will, or to act as personal representative or executor if so named by the will of the other, whether such will was executed prior or subsequent to this Agreement. t~. Except for any cause of action for divorce which either party may have or claim to have, and 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. 8. SUCCESSOR'S RIGHTS AND LIABILITIES This Agreement shall, except as otherwise provided herein, be binding upon and inure to the benefit of the parties hereto, their respective heirs, executors, administrators, successors or assigns. Final - 9/25/06 5 e` 9. SEVERABILITY If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force and effect without being impaired or invalidated in any way. 14. ENTIRE AGREEMENT :HUSBAND and WIFE do hereby covenant and warrant that this Agreement contains all of the representations, promises and Agreements made by either of them to the other for the purposes set forth in the preamble hereinabove; that there are no claims, promises or representations not herein contained, either oral or written, which shall or may be charged or enforced or enforceable unless reduced to writing and signed by both of the parties hereto. 11. BINDING EFFECT OF AGREEMENT/WAIVER This Agreement shall remain in full force and effect unless and until terminated under and pursuant to the terms of this Agreement. The failure of either parry to insist upon strict performance of the provisions of this Agreement shall not be construed as a waiver of any subsequent default of the same or similar nature, nor shall such failure be construed as a waiver of any other term, condition, clause or provision of this Agreement. Final - 9/25/06 6 12. sREACx If either party breaches any provision of this Agreement, 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, and the parry breaching this contract shall be responsible for payment of reasonable legal fees and costs incurred by the other in enforcing their rights under this Agreement. 13. CONTROLLING LAW This Agreement shall be construed and governed in accordance with the laws of the Commonwealth of Pennsylvania. 14. TAX RETURNS The parties agree that in the future if any penalties or interest or any liability for failure to declare income or the wrongful claiming of any deduction shall be assessed by the United States Internal Revenue Service or the Commonwealth of Pennsylvania, or any other state as a consequence of the parties' Federal and State income tax returns which were filed jointly by the parties, said tax, penalties or interest shall be the sole responsibility of the party found to have failed to provide the necessary information leading to the tax assessment or whose intentional or grossly negligent errors or omissions in reporting or failure to report or file income resulted in the assessment. In that situation, the party responsible for the assessment of liability shall indemnify and save harmless the other from all additional tax, penalty, and interest. If the liability is the result of a computation error or an error not attributable to the intentional or Final - 9/25/06 ~ grossly negligent conduct of either party, the parties shall share equally in all future tax liability or tax assessment, penalties and interest. SECTION II EQUITABLE DISTRIBUTION During the marriage, the parties have accumulated various assets and liabilities, the disposition of which is intended as follows: 1. ASSETS A. PERSONAL and HOUSEHOLD PROPERTY HUSBAND and WIFE do hereby acknowledge that they have heretofore divided the non- marital and marital personal and household property, including but without limitation to jewelry, clothes, furniture, and said assets have been disposed of in accordance with the parties' Agreement dated April 14, 2005, which agreement is attached hereto and incorporated herein as Exhibit "A." Each of the parties do hereby specifically waive, release, renounce and forever abandon whatever claims, if any, he or she may have with respect to any of the above said items which are the sole and separate property of the other. This document shall constitute a bill of sale for said sole property. B. REAL ESTATE T'he parties jointly own property at 508 Deubler Road, Camp Hill, Cumberland County, Pennsylvania. Said house is encumbered by a mortgage with an approximate value of ONE HUNDRED TEN THOUSAND DOLLARS ($110,000.00) at the time of separation which has Final - 9/25!06 g been reduced to the present amount of ONE FitTNDRED THREE THOUSAND DOLLARS ($103,000.00). WIFE desires to maintain sole ownership of the house and reside therein with the minor children. HUSBAND agrees to convey his interest in this real estate to WIFE upon the condition that WIFE refinances the existing mortgage debt. WIFE shall refinance the mortgage and shall be fully responsible for any past, present and future principal, interest, penalties and costs as well as any taxes, insurance and/or any debts associated with the real estate. HUSBAND agrees to execute a deed simultaneously with the execution of this Agreement wherein he assigns, conveys and transfers to WIFE all of his rights, title and interest in the marital residence. This deed shall be held in escrow by HUSBAND's counsel and released . incident to the event of WIFE's refinancing of the mortgage debt. C. MOTOR VEHICLES At the time of separation, the parties owned two (2) vehicles, namely a 1999 BMW Z3 and a 2000 BMW X28 5 Series. W~'E shall have sole ownership of the 1999 BMW Z3, which vehicle is not encumbered. HUSBAND waives any and all claims or interest in said vehicle. HUSBAND shall sole ownership of the BMW 528. WIFE waives any and all claims or interest in said vehicle. HUSBAND shall further assume the obligation to make payment of the vehicle's encumbrance due and owing to BMW Financial loan, said loan being in HUSBAND's name alone. HUSBAND will indemnify and hold WIFE harmless from said obligation. Both parties agree to cooperate to execute all documents necessary to effectuate this transfer. Final - 9/25/06 9 D. FINANCIAL ASSETS The parties warrant that they have previously divided to their mutual satisfaction their interest in their financial accounts, including the Blue Collar Stock Club. Each parry shall maintain any checking, savings, or other financial account as titled in their individual names free and clear of any claim of interest from the other. E. PENSIONS AND EMPLOYMENT BENEFITS Through his employment during the marriage, HUSBAND has obtained a vested interest in two (2) retirement plans being the AMP/TYCO plan and a 401(K) held by Fidelity Investments, Account Number 219-073172. HUSBAND had also acquired an unvested interest in Cleveland Brothers' Pension Plan. The parties agree that these benefits shall be distributed as follows <~) The parties agree to share equally all of HUSBAND'S benefits in the AMP/TYCO Pension Plan. A Qualified Domestic Relations Order shall be drafted at the shared expense of HUSBAND and WIFE by Harry Leister of Conrad Siegel or another mutually agreed upon individual. The QDRO shall provide for equal distribution of the benefit between the parties at the time HUSBAND is eligible for withdrawal. In the event an election can or must be made for retirement, HUSBAND agrees to choose a benefit which will provide for a fifty percent (50%) survivor annuity to WIFE thereby assuring her of a continuing payment consistent with her distribution under the Qualified Domestic Relations Order. Final - 9/25/06 10 b) HUSBAND warrants that due to his termination of employment from Cleveland Brothers, he has lost and forfeited his interest in the retirement benefits provided by Cleveland Brothers. HUSBAND warrants that he is not entitled to and has received no reimbursement or cash out of any benefit from Cleveland Bothers since his separation. In the event that HUSBAND does receive any such benefit in the future from Cleveland Brothers, WIFE shall be entitled to one-half (1 /2) of any benefit received and HUSBAND shall notify WIFE within thirty (30) days of receipt of notice of any such benefit. c) HUSBAND has a 401(K) benefit currently held by Fidelity. The balance in this account as of December 31, 2004 was ONE HUNDRED EIGHT-FIVE THOUSAND EIGHT HUNDRED EIGHTY-TWO DOLLARS AND 72/100 ($185,882.70). HUSBAND warrants that although withdrawals have been made from the said account since December 31, 2004, the balance in the account is adequate to distribute the monies to WIFE set forth in this paragraph pursuant to a Qualified Domestic Relations Order. HUSBAND further warrants that he will not, pending the distribution to WIFE, remove any monies that would in any way affect WIFE's distribution. HUSBAND hereby assigns to WIFE the sum of TWENTY-NINE THOUSAND FIFTY-FIVE DOLLARS and 10/100 ($29,056.10) as of January 1, 2006. The account shall be divided by a Qualified Domestic Relations Order ("QDRO") or any other instruction required by Fidelity and shall provide for WIFE's share to rollover into an IRA. WIFE's share shall also be adjusted for any increase or decrease in said rollover amount from January Final - 9/25/06 11 1, 2006 to the date of distribution. The costs of drafting the QDRO shall be shared by the parties. F. INSURANCE Each party shall retain ownership of any life insurance policy in his or her name. It is further agreed that HUSBAND shall maintain a life insurance policy in the sum of not less than TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) on himself for the benefit of the parties' minor children. WIFE shall be named as trustee of the policy for the benefit of the children. HUSBAND shall provide WIFE proof of the existence of this insurance and her designation of trustee upon execution of this Agreement and each anniversary date thereof. HUSBAND's responsibility hereunder shall terminate when each child reaches the age of twenty-three (23) or graduates from college, whichever first occurs. By way of example, at the time the oldest child, Robin L. Fencel, graduates from college or reaches age twenty-three (23), the responsibility to carry the life insurance shall be reduced to ONE HUNDRED TWENTY- FIVE THOUSAND DOLLARS ($125,000.00). G. STOCKS HUSBAND shall retain -sole ownership of the following shares of stock that are in his name: One hundred thirty-three (133) shares of Tyco International Stock Final - 9/2S/06 12 H. WIFE'S INHERITANCE Through the marriage, WIFE had received certain inheritances from her mother and her stepfather. The increase in this inheritance over the marriage has been included in this equitable distribution and has been valued at ONE THOUSAND EIGHT HUNDRED FORTY-FIVE DOLLARS ($1,845.00). HUSBAND does hereby waive any and all claims to any increase in said inheritance estate, including any increase in the value of same. 2. DEBTS Each party represents that they have not contracted any debt or liability for the other for which the estate of the other party may be responsible or liable except as otherwise provided herein, and that except only for the rights arising out of this Agreement, neither party will hereafter incur any liability whatsoever for which the other party or the estate of the other party will be liable. Each party agrees to indemnify and hold harmless from and against all future obligations of every kind incurred by them, including those for necessities. To the best of the parties' knowledge, the parties affirm no other joint debts exist and all joint credit cards and other obligations are terminated. SECTION III SUPPORT, ALIMONY PENDENTE LITE, ALIMONY Both parties acknowledge and agree that the provisions of this Agreement providing for equitable distribution of marital property are fair, adequate and satisfactory to them and are accepted by them in lieu of and in full and final satisfaction of any claims or demands that either Final - 9/25/06 13 may now or hereafter have against the other for support, maintenance, alimony or alimony pendente lite. HUSBAND and WIFE further, voluntarily and intelligently, waive and relinquish any right to seek from the other any payment for spousal support, alimony, alimony pendente lite and maintenance. WIFE shall be responsible .for her own medical insurance after the entry of the divorce decree. HUSBAND agrees to provide WIFE with the contact information to allow her to continue his present COBRA coverage in the event she should so choose at her sole cost and expense. SECTION IV CUSTODY 1. CUSTODY The parties agree that custody will be handled by a separate agreement of the parties. SECTION V SUPPORT, ALIMONY PENDENTE LITE, ALIMONY 1. SUPPORT A support action has been filed by WIFE to PACSES Case Number 048107434 in the Court of Common Pleas of Cumberland County. There is an appeal pending by HUSBAND to a Support Order entered on behalf of WIFE and the children on July 14, 2005. HUSBAND shall terminate the appeal and WIFE shall terminate any anticipated discovery. The parties agree that in light of HUSBAND's recent employment history, as well as his present unemployment, the Final - 9/25/06 14 Order shall be amended retroactively to the date of filing to provide that HUSBAND shall owe support of NINE HUNDRED EIGHT-FIVE DOLLARS ($985.00) per month for the support of his minor children and no support for his spouse. Criven that HUSBAND has made the ordered payments, he shall have a significant credit on his account at Domestic Relations. The parties agree that no actual cash payment for child support shall be due at Domestic Relations for six (6} months (commencing September 1, 2006 and ending February 28, 2007). Thereafter, and continuing until the credit created by the retroactive application of this Agreement is extinguished, HUSBAND shall be entitled to apply one-half (1/2) of the ordered monthly amount from this existing credit. until the credit if fully extinguished. By way of illustration, during the period of September, 2006 through February, 2007, HUSBAND's account shall continue to charge at the agreed upon NIl~TE HUNDRED EIGHTY-FIVE DOLLARS ($985.00) but no payments shall be required and the credit shall be reduced. Effective March 1, 2007, the account shall charge at $985.00 per month but Husband shall only be required to pay $492.50 and $492.50 shall be reduced from his credit. Should HUSBAND obtain employment during this six (6) month interim period, WIFE shall have the right to petition Domestic Relations to evaluate the agreed upon support amount. HUSBAND shall not petition for a reduction of the support during the six month time period identified in this paragraph. In the interim, HUSBAND shall continue to be responsible to carry both children on medical insurance. HUSBAND shall also pay to WIFE fifty-three percent (53%) of unreimbursed medical costs incurred for either child which exceeds the TWO HUNDRED FIFTY DOLLARS ($250.00} per year. Final - 9/25(06 15 SECTION V 1. CONDITION PRECEDENT TO THE AGREEMENT'S EFFECTIVENESS The parties acknowledge that this Agreement shall become effective when actually signed by both parties. J SE H .FE ~u ~- ~ . ~u ~~- FRANCES M. FENCEL Final - 9/25(06 16 COMMONWEALTH OF PENNSYLVANIA ) SS. COUNTY OF CUMBERLAND ) Before me, the undersigned officer, a Notary Public in and for said Commonwealth and County, personally appeared JOSEPH J. FENCEL, who being duly affirmed according to law, deposes and says that the facts and matter set forth in the within and foregoing Marital Settlement Agreement are true and correct to the best of his knowledge, information and belief. Before me, the undersigned officer, a Notary Public in and for said Commonwealth and County, personally appeared FRANCES M. FENCEL, who being duly affirmed according to law, deposes and says that the facts and matter set forth in the within and foregoing Marital Settlement Agreement are true and correct to the best of her knowledge, information and belief. Before me this ~ ~ day of September, 2006. (SEAL) ..~~ NOTARIAL SEAL BARBARA SUMPLE-SULLNAN Notary Public NEWCUMBERLAND BOROUGH CUMBERLAND COUNTY My Commission Expires Nov 15, 2007 Final - 9/25/06 17 COMMONWEALTH OF PENNSYLVANIA ) SS. COUNTY OF CUMBERLAND ) My commission expires: EXHIBIT "A" ~ i 1 ~ AGREEMENT ~~~ ~ This agreement is made this , by and between Joseph J. Fencel (hereinafter "Husband") and Frances M. Fencel (hereinafter "WIFE"). WITNESSETH: VII-IEREAS, Husband and Wife are involved in the divorce proceedings filed in Cumberland County Docket No. 04-6038; WI~REAS, the litigation is on going but the parties have reached a full and final agreement concerning the disposition of personal property and contents in the marital home (hereinafter "Personalty"); WHEREAS, the parties desire that this agreement be final on the disposition of said Personalty and that any fiu ther reference or inclusion of these assets be deleted from further disposition in the divorce litigation; NOW THEREFORE, the parties, intending to be legally bound, do agree as follows 1) INCORPORATION OF PREAMBLE AS A MATERIAL TERM OF THE AGREEMENT: The parties incorporate into this Agreement as a material term the whereas provisions above 1 2) DIVISION OF PERSONAL PROPERTY: With the exceptions specifically stated herein, the parties agree that all items of household or personal property in the present possession of either party shall be the sole and separate property of that individual. Each of the parties do hereby specifically waive, release, renounce and forever abandon whatever claims, if any, he or she may have with respect to any of the Personalty in the sole and separate property of the other. The parties agree that the only outstanding issues of Personalty is division of family photographs and return of jewelry. Duplicate family photographs shall be divided between the parties. Further, Husband shall be allowed to make copies of any and all family photographs he shall desire. Within three (3) days of signing this Agreement, Husband also agrees to return Wife's engagement ring, Wife's wedding band, Wife's pearl pendant and other jewelry of Wife's which he removed after separation. This Agreement shall constitute a bill of sale for said property. This Agreement does not apply to distribution of vehicles. 3) CASH PAYMENT TO HUSBAND: In order to effectuate an equitable division of the value of this Personalty, Wife does agree to pay to Husband the sum of Five Thousand Dollars ($5,000.00) in full and final 2 consideration of any claims related to household or Personalty upon execution of this Agreement. 4) NUT BAR TO FURTHER PROCEEDINGS: This Agreement shall in no way be used or interpreted as full settlement or resolution of-any other issues pending between the parties in the divorce. All such claim and rights are preserved. 1N WITNESS WHEREOF, INTENDING TO BE LEGALLY BOUND, the parties have caused this Agreement to be duly executed and sealed the day and year first above written. se J. Fen 1 ~~~~1. Frances M. Fencel 3 COMMONWEALTH OF PENNSYLVANIA ) SS. COUNTY OF ~F~l~~ ^'~ ) Before me, the undersigned officer, a Notary Public in and for said Commonwealth and County, personally appeared Joseph J. Fencel, who being duly affirmed according to law, deposes and says that the facts and matter set forth in the within and foregoing Agreement are true and correct to the best of his knowledge, information and belief. Affumed and subscribed to before me this ~f day of , 2005. NOTARY PUBLIC My commission expires: COFdEtv1~3NW~~LT~i OF PENNSYLV,4NIA Notarial ~...al Linda L. Fettamoif; Notary Public terry Twp., Cau~hin County My C„^rrsrtission i=;cpir~es Nov. S, 2~7 Member, ?ennsyivania Association Of Notaries (SEAL) COMMONWEALTH OF PENNSYLVANIA ) SS. COUNTY OF CUMBERLAND ) Before me, the undersigned officer, a Notary Public in and for said Commonwealth and County, personally appeared Frances M. Fencel, who being duly affirmed according to law, deposes and says that the facts and matter set forth in the within and foregoing Agreement are true and correct to the best of her knowledge, information and belief. subscribed to before me this ~ day of 005. NO ARY PUBLIC My commission expires: (SEAL) Novi ~x enRenw- wry-sw.w~N Notary Pubic ~ COIMTY My Conr-mission Expires Nov 15.2007 4 E~b~t $ Frances M. Fencel - IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION -LAW IN DNORCE Joseph J. Fencel NO. 04-6038 Defendant ~2UALIFIED DOMESTIC RELATIONS ORDER 1. The Court intends this Order to be a Qualified Domestic Relations Order ("QDRO") within the meaning of §414(p) of the Internal Revenue Code of 1986 ("Code"). 2. This Order creates and recognizes the existence of the Alternate Payee's right to receive a portion of the benefits payable with respect to the Participant. 3. This QDRO relates to the provision of marital property rights to the Alternate Payee pursuant to a Marriage Settlement Agreement entered into by the parties on September 25, 2006. 4. This QDRO applies to the Tyco Electronics Pension Plan-AMP ("Plan") and any successor .thereto. Joseph J. Fencel ("Participant") is a Participant in the Plan. Frances M. Fencel ("Alternate Payee"), the former spouse, is the Alternate Payee for purposes of this QDRO. 5. The Participant's name, mailing address, Social Security number and date of birth are: Joseph J. Fencel 4834 E. Trindle Road, Apt. 3 Mechanicsburg, PA 17050 Social Security No.: T78-60-1175 Date of Birth: March 18, 1962 6. The Alternate Payee's name, mailing address, Social Security number and date of birth are: Frances M. Fencel 508 Deubler Road Camp Hill, PA 17011 Social Security No.: 185-60-5225 Date of Birth: February 11, 1964 It is the responsibility of the Alternate Payee to keep a current mailing address on file with the Plan at all times. 7. The Alternate Payee is hereby awarded 50% of the Participant's accrued benefit under the Plan as of February 1, 2002. The Participant's accrued benefit is a liability of the Plan equal to a monthly benefit payable for the Participant's life commencing on the first day of the month coincident with or next following his 65th birthday. The actuarial equivalent (determined in accordance with Plan rules and procedures in effect) of the portion of the. Participant's accrued benefit hereby assigned to the Alternate Payee shall be payable to the Alternate Payee, at the Alternate Payee's election, (i) at any time on or after the earliest date that the Participant would ~ ~ ~ QDRO Page 2 be eligible to commence receipt of his Plan accrued benefit (the "Earliest Retirement Date"), without regard to whether the Participant has in fact commenced receipt of his own remaining Plan accrued benefit, (ii) in any form of payment the Participant would be eligible to elect and (iii) subject to the Plan's early payment reduction factors applied from the Participant's age 65 if commenced prior to the Participant's attainment of age 65; with the exception that in no event may the Alternate Payee elect payment in the form of a joint and survivor annuity with a new spouse of the Alternate Payee as the joint annuitant and that the form of payment the Alternate Payee may elect is subject to the limitations of Section 401(a)(9) of the Internal Revenue Code. Payments must commence to the Alternate Payee on the date payments to the Participant commence under the Plan if she fails to elect an earlier benefit commencement date. The form of payment to the Alternate Payee shall be a life annuity for her lifetime if she fails to elect a different form of payment. In the event the Alternate Payee commences benefit payments prior to the Participant's retirement and the Participant subsequently commences Plan benefit payments under conditions of eligibility for an early retirement subsidy, the benefit payable to the Alternate Payee shall be re-calculated prospectively to provide to the Alternate Payee a proportionate share of such early retirement subsidy. In addition to the above, the Alternate Payee shall receive a pro rata share of any postretirement cost-of-living adjustments or other economic improvements made to the Participant's benefits on or after the date of his retirement. Such pro rata share shall be calculated in the same manner as the Alternate Payee's share of the Participant's retirement benefits is calculated pursuant to this Paragraph 7. Notwithstanding the language set forth in this Paragraph 7, in the event that the Alternate Payee becomes entitled to a qualified preretirement survivor annuity under Paragraph 8 of this Order, then the Alternate Payee's right to a share of the Participant's benefits as called for under this Paragraph 7 shall be terminated as of the date of the Participant's death, and such preretirement death benefit shall be payable to the Alternate Payee in lieu of any other benefits to which she may be entitled under the terms of this Order. 8. In the event the Participant predeceases the Alternate Payee, and neither the Participant nor the Alternate Payee has commenced their benefits under the Plan, the Alternate Payee shall be designated as the surviving spouse of the Participant for the purposes of establishing the Alternate Payee's entitlement to receipt of the preretirement survivor annuity. For purposes of determining the eligibility for such surviving spouse benefit, the Alternate Payee and the Participant have satisfied the one (1) year marriage requirement as enumerated in Code §§401(a)(11} and 417(d) and as may be required under the provisions of the Plan. This designation applies to the portion of Participant's accrued benefit awarded to Alternate Payee in Paragraph 7 of this Order. Further, if the Plan provides for any preretirement death benefit in excess of a qualified preretirement survivor annuity to which a spouse would be entitled, the Alternate Payee shall be ~ ~ ~ QDRO Page 3 designated as the beneficiary of such death benefit with respect to the portion of the Participant's accrued benefit awarded to the Alternate Payee under the order. 9. In the event the Alternate Payee dies prior to commencement of her benefit payments pursuant to this order, the portion of the Participant's accrued benefit assigned to the Alternate Payee pursuant to this order shall revert to the Participant. 10. In no event shall the Alternate Payee have greater benefits or rights other than those which are available to the Participant. The Alternate Payee is not entitled to any benefit not otherwise provided by the Plan. The Alternate Payee is only entitled to the specific benefits offered by the Plan as provided in this QDRO. All other rights, privileges and options offered by the Plan not granted to Alternate Payee are preserved for the Participant. 11. The Plan shall issue individual tax forms to the Participant and Alternate Payee for amounts paid to each such person. 12. In the event that the Plan inadvertently pays to the Participant any benefits that are assigned to the Alternate Payee pursuant to the terms of this QDRO, the Participant shall immediately reimburse the Alternate Payee to the extent that he has received such benefit payments and shall forthwith pay such amounts so received directly to the Alternate Payee within ten days of receipt. In the event the Plan inadvertently pays to the Alternate Payee any benefits that are not assigned to her pursuant to the terms of this QDRO, the Alternate Payee shall immediately reimburse the Participant to the extent she has received such benefit payments and shall forthwith pay such amounts so received directly to the Participant within ten days of receipt. 13. In the event that the Plan is terminated, whether on a voluntary or involuntary basis and the Participant's benefits become guaranteed by the Pension Benefit Guaranty Corporation (PBGC), the Alternate Payee's benefits, as stipulated herein, shall also be guaranteed to the same extent in accordance with the Plan's termination rules and in the same ratio,as the Participant's benefits are guaranteed by the PBGC. 14. The Plan Administrator promptly shall notify the Participant and the Alternate Payee of the receipt of this QDRO and shall notify the Participant an the Alternate Payee of the Plan's procedures for determ;n;ng the qualified status of this QDRO. The Plan Administrator shall determine the qualified status of the QDRO and shall notify the Participant and the Alternate Payee of the determination within a reasonable period of time after receipt of this QDRO. r ( ~ v QDRO Page 4 The Court retains jurisdiction over this matter as provided by law. IT IS ORDERED This day of , 20 PLAINTIFF/ALTERNATE PAYEE Signature Date: Attorney for Plaintiff/Alternate Payee: Signature Date: Print Name and Mailing Address of Attorney: Judge of the DEFENDANT/PARTICIPANT Court Signature Date: Attorney for Defendant/Participant: Signature Date: Print Name and Mailing Address of Attorney: Telephone Number: Telephone Number: ~ ' ~ ~ Barbara Sumple-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, PA 17070 (717)774-1445 Counsel for Petitioner FRANCES M. FENCEL, Plaintiff (Petitioner) v. JOSEPH J. FENCEL, Defendant (Respondent) IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 04-6038 IN DIVORCE CERTIFICATE OF SERVICE I, BARBARA SUMPLE-SULLIVAN, ESQUIRE, do hereby certify that on this date I served a true and correct copy of the Motion for Entry of Qualified Domestic Relations Order and Enforcement in the above-captioned matter upon the following individual(s) by United States first- class mail, postage prepaid, addressed as follows: John J. Connelly, Jr., Esquire James Smith Dietterick & Connelly, LLP 134 Sipe Avenue Hummelstown, PA 17036 DATE: ~ Q,(~ Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070-1931 (717) 774-1445 Supreme Court LD. 32317 Attorney for Plaintiff 1 t ~ Barbara Sumple-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, PA 17070 (717)774-1445 Counsel for Petitioner DEC 19 2oD6 M Y FRANCES M. FENCEL, Plaintiff (Petitioner) v. JOSEPH J. FENCEL, Defendant (Respondent) IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 04-603 8 IN DIVORCE RULE AND NOW, this z '• day of ~~~G~r , 2006 in consideration of Plaintiff s Motion for Enforcement, a RULE is issued on Defendant to show cause, if any, why the Court should not grant the relief requested. Pending return of the Rule, the sums contained in Respondent's Fidelity Investment Account, Account No.219-073172 are hereby frozen. A copy of this Order shall be served on Fidelity Investments. Fidelity Investments shall freeze said account until it receives appropriate paperwork from the parties to allow for the rollover of the sum of Twenty-nine Thousand Fifty-six Dollars and 10/100 ($29,056.10), as adjusted for profit or loss since January 1, 2006 to the date of distribution, for Petitioner. After payment to Petitioner, Respondent shall be entitled to any remaining sums in the account as his sole property pursuant to the parties' Marital Settlement Agreement dated September 25, 2006. The Rule is returnable within Z o days from the date of service. BY THE COURT: r ~. John J. Connelly, Jr., Esquire Attorney I.D. No. 15615 James Smith Dietterick & Connelly, LLP P.O. Box 650 Hershey, PA 17033 Attorneys for Defendant FRANCES M. FENCEL, Plaintiff/Petitioner v. JOSEPH J. FENCEL, DefendantlRespondent IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA N0.04 - 6038 CIVIL CIVIL ACTION -LAW IN DIVORCE DEFENDANT'S ANSWER TO MOTION FOR ENFORCEMENT AND NOW, comes the Defendant, Joseph J. Fencel, by and through his counsel, John J. Connelly, Jr., Esquire of James, Smith, Dietterick & Connelly, LLP and files this Answer as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. The Respondent has never refused to execute the documents referred to in this paragraph. He has made appointments with counsel but for one reason or another was unable to make the appointments. 9. Admitted. ~ ~ 10. Admitted. 11. Admitted. 12. Denied. Although counsel for the Respondent has had difficulty in communicating with the Respondent, he recently contacted counsel and advised that he would be in an in-patient treatment program for two to four weeks and would execute all documents upon his release. 13. Denied. Although the Respondent has not executed the letter of instruction or the Stipulation for Qualified Domestic Relations Order, he at no time refused to execute the documents and in fact agreed that upon his release from treatment would execute the documents promptly. 14. Admitted. 15. Admitted. 16. As indicated previously in paragraphs 12 and 13 hereof, the Respondent will execute all documents upon his release from in-patient treatment. 17. See answer to paragraph 16 above. 18. Since the Court entered a temporary Order freezing the sums in the 401(k) account, the Respondent cannot liquidate the 401(k). 19. See answer to paragraph 18 above. 20. Admitted. It is admitted that the Respondent has made significant withdrawals from the Fidelity account in the past. It is denied that he is in a position to do so in the future given the Court's temporary Order. 21. The Petitioner's request for the temporary Order has been entered. 22. Admitted. 2 e w 23. Admitted. 24. Admitted. 25. The Petitioner will address the payment to Conrad Siegel, Inc. upon his release from treatment. 26. Given the Respondent's in-patient treatment, he is not in a position to make payment within five (5) days but will do so upon release from treatment. 27. No response is required and proof is demanded at time of the hearing. 28. The Respondent has never refused to execute any documents and would not be in breach of the contract unless and until the refusal occurred. The significant personal issues referred to in paragraph 19 of the Petition has caused the Respondent to delay action in this matter not to breach the contract. 29. No response is required and proof is demanded at time of the hearing. WHEREFORE, the Respondent requests that this Court enter an Order requiring the Respondent to execute all documents within five (5) days of his release from in-patient treatment and to pay one-half the cost of Mr. Liester's bill within ten (10) days of treatment and to deny the Petitioner's request for counsel fees. Dated: ~' ~ a 1 By: Respectfully submitted, JAMES, SMITH, DIETTERICK & CONNELLY, LLP J J. onn ly, Jr. tto I.D. 15615 P.O. Box Hershey, PA 17033-0650 (717) 533-3280 Attorneys for Defendant/Respondent 3 M ~ FRANCES M. FENCEL, IN THE COURT OF COMMON PLEAS Plaintiff/Petitioner :CUMBERLAND COUNTY, PENNSYLVANIA v. N0.04 - 6038 CIVIL JOSEPH J. FENCEL, :CIVIL ACTION -LAW Defendant/Respondent IN DIVORCE CERTIFICATE OF SERVICE I, John J. Connelly, Jr., Esquire, of James, Smith, Dietterick & Connelly, LLP attorney for the Defendant/Respondent, Joseph J. Fence], hereby certify that I have served a copy of the foregoing Answer on the following on the date and in the manner indicated below: VIA U.S. MAIL, FIRST CLASS, PRE-PAID Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070-1931 Dated: 2, ~ 0 By: JAMES, SMITIi, DIETTERICK & CONNELLY, LLP J hn : Co lly, Jr. tto e I . #15615 P.O. Box 650 Hershey, PA ] 7033-0650 (717) 533-3280 C ~ ~ ~., cy -7-i y S~ : ate/ 4_- ;~ ~= _ .. t"~~~ f ~ ~ =-<. FRANCES M. FENCEL, Plaintiff/Petitioner vs. JOSEPH J. FENCEL, Defendant/Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO.04-6038 CIVIL IN RE: MOTION FOR ENFORCEMENT nu r~~u AND NOW, this ~ ~ ~ day of January, 2007, hearing in the above-captioned matter is set for Monday, April 30, 2007, at 3:00 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, arbara Sumple-Sullivan, Esquire For the Plaintiff/Petitioner ~hn J. Connelly, Jr., Esquire For the Defendant/Respondent :rlm ~ -_, ~_. 1.._I ~5 ~ 1 _ p'[f ~~ 7 ° G 4"~ ~ 7 v ~,~11~`i t~ t7 L MARITAL SETTLEMENT AGREEMENT THISAGREEMENT, made this ~~day of September, 2006, by and between Joseph J. Fencel, hereinafter referred to as "HUSBAND," and Frances M. Fencel, hereinafter referred to as "WIFE." WITNESSETH, That: WHEREAS, the parties hereto are HUSBAND and WIFE, having been lawfiully joined in mamage on July 13, 1985 in Mechanicsburg, Cumberland County, Pennsylvania; WHEREAS, two (2) children were born of this marriage being Robin L. Fencel (DOB: 10/15/1989) and Joseph J. Fencel (DOB: 1/15/1994); WHEREAS, it is the intention of the parties to settle fully and finally their respective financial and property rights and obligations as between each other arising out of the marriage relationship or otherwise, including without limitation (1) the settling of all matters between them relating to the ownership of real and personal property; (2) the settling of all matters between them relating to the past, present and future support and/or maintenance of HUSBAND and WIFE; and (3) the settling of matters related to the support of their minor children; and (4) the settling of all matters between them relating to any and all rights, titles and interests, claims and possible claims in or against the estate of the other. NOW THEREFORE, with the foregoing recitals being hereinafter incorporated by reference and deemed an essential part hereof in consideration of the foregoing recitals, the mutual promises, covenants and undertakings herein set forth, and for good and valuable consideration, receipt of which is hereby acknowledged by each of the parties hereto, Final - 9/25/06 ~~ HUSBAND and WIFE, each intending to be legally bound hereby, covenant and agree as follows: SECTION I GENERAL PROVISIONS 1. ADVICE OF COUNSEL HUSBAND and WIFE declare that they have each had a full and fair opportunity to obtain independent legal advice of counsel of their selection. HUSBAND has been independently represented by John J. Connelly, Jr., Esquire. WIFE has been independently represented by Bazbaza Sumple-Sullivan, Esquire. Each party further declares that they aze executing this Agreement freely and voluntarily, having obtained such knowledge and disclosure of their legal rights and obligations. Each parry acknowledges that this Agreement is fair and equitable and is not the result of any fraud, coercion, duress, undue influence or collusion. 2. PERSONAL RIGHTS HUSBAND and WIFE may and shall, at all times hereafter, live separate and apart. Each shall be free from all control, restraint, interference or authority, direct or indirect, by the other in all respects as if she or he were unmarried, except as may be necessary to carry out the provisions of this Agreement. Each may reside at such place or places as she or he may select. Each may, for his or her sepazate use or benefit, conduct, carry on and engage in any business, occupation, profession or employment which to him or her may seem advisable. This provision shall not be taken, however, to be an admission on the part of either HUSBAND or WIFE of the lawfulness of the causes, which led to, or resulted in, the continuation of their living apart. Final - 9/25/06 2 ,_~ HUSBAND and WIFE shall not molest, harass, or malign the other or the respective families of each other, nor compel the other to cohabit or dwell in any manner with him or her, nor in any way interfere with the peaceful existence, separate from each other. 3. FINANCIAL DISCLOSURE The parties have fully complied with the other's requests for disclosure of income, assets, liabilities, holdings and estate. Each party warrants that the information provided has fully and accurately described the extent of his or her holdings. Each of the parties acknowledge that he or she is aware of his or her right to seek discovery including, but not limited to, written interrogatories, motions for document production, depositions, and other means of discovery available through the Pennsylvania Rules of Civil Procedure. The parties acknowledge that they have had the right to have property fully appraised. Each party is fully satisfied that no additional information is necessary for the execution of this Agreement. 4. MUTUAL CONSENT DIVORCE The parties intend to secure a mutual consent, no fault divorce pursuant to the provisions of Section 3301(c) of the Divorce Code of 1980, as amended and will execute the documents necessary to effectuate a divorce under those provisions concurrently with the execution of this Agreement. The parties agree that the Affidavits of Consent and the Waivers of Notice shall be signed simultaneously with this Agreement and the divorce promptly concluded. Final - 9/25/06 ~'1 5. SUBSEQUENT DIVORCE A decree in divorce, entered by the Court of Cumberland County, shall not suspend, supersede or affect the terms of this Agreement. This Agreement, and the terms and conditions contained herein, as well as the enforcement of said terms and conditions, shall not be contingent upon the granting of a Divorce Decree to either party by the Court of Common Pleas of Cumberland County, Pennsylvania, or any other Court of competent jurisdiction. This Agreement shall remain in full force and effect even if the parties reconcile, cohabit as HUSBAND and WIFE, or attempt reconciliation. This Agreement shall continue in full force and effect and there shall not be a modification or waiver of any of the terms hereof unless the parties, in a writing signed by both parties, execute a statement declaring this Agreement or any term of this Agreement to be null and void. Both parties hereto agree that this Agreement may be incorporated by reference but shall not be deemed merged into any judgment or decree for divorce obtained by either party. 6. OTHER DOCUMENTATION HUSBAND and WIFE covenant and agree that upon request of the other party, they will forthwith execute and deliver to the other party, any and all written instruments, assignments, releases, satisfactions, deeds, notes or such other writings as may be necessary or desirable for the proper effectuation of this Agreement. 7. MUTUAL RELEASES Except as otherwise expressly provided by this Agreement, A. 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 Final - 9/25/06 4 either may have or at any time hereafter have 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, agreements and obligations of whatsoever nature arising or which may arise under this Agreement or for the breach of any provision thereof. Neither party shall have any obligation to the other not expressly set forth herein. B. 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 rights, claims, demands or obligations arising out of or by virtue of the marital relationship of the parties or otherwise, 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 or the other or by way of dower, curtesy, widow'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 or the United States, or any other country. It is expressly understood, however, that neither the provisions of this release nor the subsequent entry of a divorce decree are intended to defeat the right of either parry to receive any insurance proceeds at the death of the other of which she or he is the named beneficiary (whether the beneficiary designation was made prior or subsequent to execution hereof), nor to defeat the right of either parry to receive any legacy, bequest or residuary portion of the other's estate under his or her will, or to act as personal representative or executor if so named by the will of the other, whether such will was executed prior or subsequent to this Agreement. C. Except for any cause of action for divorce which either parry may have or claim to have, and except for the obligations of the parties contained in this Agreement and such rights as are expressly reserved herein, each parry 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. 8. SUCCESSOR'S RIGHTS AND LIABILITIES This Agreement shall, except as otherwise provided herein, be binding upon and inure to the benefit of the parties hereto, their respective heirs, executors, administrators, successors or assigns. Final - 9/25/06 5 _ 1 9. SEVERABILITY If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force and effect without being impaired or invalidated in any way. 10. ENTIRE AGREEMENT HUSBAND and WIFE do hereby covenant and warrant that this Agreement contains all of the representations, promises and Agreements made by either of them to the other for the purposes set forth in the preamble hereinabove; that there aze no claims, promises or representations not herein contained, either oral or written, which shall or may be charged or enforced or enforceable unless reduced to writing and signed by both of the parties hereto. 11. BINDING EFFECT OF AGREEMENT/WAIVER This Agreement shall remain in full force and effect unless and until terminated under and pursuant to the terms of this Agreement. The failure of either party to insist upon strict performance of the provisions of this Agreement shall not be construed as a waiver of any subsequent default of the same or similaz nature, nor shall such failure be construed as a waiver of any other term, condition, clause or provision of this Agreement. Final - 9/25/06 6 ,, 12. BREACH If either party breaches any provision of this Agreement, 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, and the party breaching this contract shall be responsible for payment of reasonable legal fees and costs incurred by the other in enforcing their rights under this Agreement. 13. CONTROLLING LAW This Agreement shall be construed and governed in accordance with the laws of the Commonwealth of Pennsylvania. 14. TAX RETURNS The parties agree that in the future if any penalties or interest or any liability for failure to declaze income or the wrongful claiming of any deduction shall be assessed by the United States Internal Revenue Service or the Commonwealth of Pennsylvania, or any other state as a consequence of the parties' Federal and State income tax returns which were filed jointly by the parties, said tax, penalties or interest shall be the sole responsibility of the party found to have failed to provide the necessary information leading to the tax assessment or whose intentional or grossly negligent errors or omissions in reporting or failure to report or file income resulted in the assessment. In that situation, the party responsible for the assessment of liability shall indemnify and save harmless the other from all additional tax, penalty, and interest. If the liability is the result of a computation error or an error not attributable to the intentional or Final - 9/25/06 ~ grossly negligent conduct of either party, the parties shall share equally in all future tax liability or tax assessment, penalties and interest. SECTION II EQUITABLE DISTRIBUTION During the marriage, the parties have accumulated various assets and liabilities, the disposition of which is intended as follows: 1. ASSETS A. PERSONAL and HOUSEHOLD PROPERTY HUSBAND and WIFE do hereby acknowledge that they have heretofore divided the non- marital and marital personal and household property, including but without limitation to jewelry, clothes, furniture, and said assets have been disposed of in accordance with the parties' Agreement dated April 14, 2005, which agreement is attached hereto and incorporated herein as Exhibit "A." Each of the parties do hereby specifically waive, release, renounce and forever abandon whatever claims, if any, he or she may have with respect to any of the above said items which are the sole and separate property of the other. This document shall constitute a bill of sale for said sole property. B. REAL ESTATE The parties jointly own property at 508 Deubler Road, Camp Hill, Cumberland County, Pennsylvania. -Said house is encumbered by a mortgage with an approximate value of ONE HUNDRED TEN THOUSAND DOLLARS ($110,000.00) at the time of separation which has Final - 9/25/06 8 been reduced to the present amount of ONE HUNDRED THREE THOUSAND DOLLARS ($103,000.00). WIFE desires to maintain sole ownership of the house and reside therein with the minor children. HUSBAND agrees to convey his interest in this real estate to WIFE upon the condition that WIFE refinances the existing mortgage debt. WIFE shall refinance the mortgage and shall be fully responsible for any past, present and future principal, interest, penalties and costs as well as any taxes, insurance and/or any debts associated with the real estate. HUSBAND agrees to execute a deed simultaneously with the execution of this Agreement wherein he assigns, conveys and transfers to WIFE all of his rights, title and interest in the marital residence. This deed shall be held in escrow by HUSBAND's counsel and released incident to the event of W1FE's refinancing of the mortgage debt. C. MOTOR VEHICLES At the time of separation, the parties owned two (2) vehicles, namely a 1999 BMW Z3 and a 2000 BMW 528 5 Series. WIFE shall have sole ownership of the 1999 BMW Z3, which vehicle is not encumbered. HUSBAND waives any and all claims or interest in said vehicle. HUSBAND shall sole ownership of the BMW 528. WIFE waives any and all claims or interest in said vehicle. HUSBAND shall further assume the obligation to make payment of the vehicle's encumbrance due and owing to BMW Financial loan, said loan being in HUSBAND's name alone. HUSBAND will indemnify and hold WIFE harmless from said obligation. Both parties agree to cooperate to execute all documents necessary to effectuate this transfer. Final - 9/25/06 9 ~ ~ A ~ ,1 D. FINANCIAL ASSETS The parties warrant that they have previously divided to their mutual satisfaction their interest in their financial accounts, including the Blue Collar Stock Club. Each party shall maintain any checking, savings, or other financial account as titled in their individual names free and clear of any claim of interest from the other. E. PENSIONS AND EMPLOYMENT BENEFITS Through his employment during the marriage, HUSBAND has obtained a vested interest in two (2) retirement plans being the AMP/TYCO plan and a 401(x) held by Fidelity Investments, Account Number 219-073172. HUSBAND had also acquired an unvested interest in Cleveland Brothers' Pension Plan. The parties agree that these benefits shall be distributed as follows: a) The parties agree to share equally all of HUSBAND'S benefits in the AMP/TYCO Pension Plan. A Qualified Domestic Relations Order shall be drafted at the shared expense of HUSBAND and WIFE by Harry Leister of Conrad Siegel or another mutually agreed upon individual. The QDRO shall provide for equal distribution of the benefit between the parties at the time HUSBAND is eligible for withdrawal. l:n the event an election can or must be made for retirement, HUSBAND agrees to choose a benefit which will provide for a fifty percent (50%) survivor annuity to WIFE thereby assuring her of a continuing payment consistent with her distribution under the Qualified Domestic Relations Order. Final - 9/25/06 10 ~ ~ ~ ' ~_J b) HUSBAND warrants that due to his termination of employment from Cleveland Brothers, he has lost and forfeited his interest in the retirement benefits provided by Cleveland Brothers. HUSBAND warrants that he is not entitled to and has received no reimbursement or cash out of any benefit from Cleveland Bothers since his sepazation. In the event that HUSBAND does receive any such benefit in the future from Cleveland Brothers, WIFE shall be entitled to one-half (1 /2) of any benefit received and HUSBAND shall notify WIFE within thirty (30) days of receipt of notice of any such benefit. c) HUSBAND has a 401(K) benefit currently held by Fidelity. The balance in this account as of December 31, 2004 was ONE HUNDRED EIGHT-FIVE THOUSAND EIGHT HUNDRED EIGHTY-TWO DOLLARS AND 72/100 ($185,882.70). HUSBAND warrants that although withdrawals have been made from the said account since December 31, 2004, the balance in the account is adequate to distribute the monies to WIFE set forth in this paragraph pursuant to a Qualified Domestic Relations Order. HUSBAND further warrants that he will not, pending the distribution to WIFE, remove any monies that would in any way affect WIFE's distribution. HUSBAND hereby assigns to WIFE the sum of TWENTY-NINE THOUSAND FIFTY-FIVE DOLLARS and 10/100 ($29,056.10) as of January 1, 2006. The account shall be divided by a Qualified Domestic Relations Order ("QDRO") or any other instruction required by Fidelity and shall provide for WIFE's share to rollover into an IlZA. WIFE's share shall also be adjusted for any increase or decrease in said rollover amount from January Final - 9/25/06 11 1 ~ [ ~ l ~ 1, 2006 to the date of distribution. The costs of drafting the QDRO shall be shared by the parties. F. INSURANCE Each party shall retain ownership of any life insurance policy in his or her name. It is further agreed that HUSBAND shall maintain a life insurance policy in the sum of not less than TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) on himself for the benefit of the parties' minor children. WIFE shall be named as trustee of the policy for the benefit of the children. HUSBAND shall provide WIFE proof of the existence of this insurance and her designation of trustee upon execution of this Agreement and each anniversary date thereof. HUSBAND'S responsibility hereunder shall terminate when each child reaches the age of twenty-three (23) or graduates from college, whichever first occurs. By way of example, at the time the oldest child, Robin L. Fencel, graduates from college or reaches age twenty-three (23), the responsibility to carry the life insurance shall be reduced to ONE HUNDRED TWENTY- FIVE THOUSAND DOLLARS ($125,000.00). G. STOCKS HUSBAND shall retain sole ownership of the following shares of stock that are in his name: One hundred thirty-three (133) shares of Tyco International Stock Final - 9/25/06 12 H. WIFE'S INHERITANCE Through the marriage, WIFE had received certain inheritances from her mother and her stepfather. The increase in this inheritance over the marriage has been included in this equitable distribution and has been valued at ONE THOUSAND EIGHT HUNDRED FORTY-FIVE DOLLARS ($1,845.00). HUSBAND does hereby waive any and all claims to any increase in said inheritance estate, including any increase in the value of same. 2. DEBTS Each party represents that they have not contracted any debt or liability for the other for which the estate of the other party may be responsible or liable except as otherwise provided herein, and that except only for the rights arising out of this Agreement, neither party will hereafter incur any liability whatsoever for which the other party or the estate of the other party will be liable. Each party agrees to indemnify and hold harmless from and against all future obligations of every kind incurred by them, including those for necessities. To the best of the parties' knowledge, the parties affirm no other joint debts exist and all joint credit cards and other obligations are terminated. SECTION III SUPPORT, ALIMONY PENDENTE LITE, ALIMONY Both parties acknowledge and agree that the provisions of this Agreement providing for equitable distribution of marital property are fair, adequate and satisfactory to them and are accepted by them in lieu of and in full and final satisfaction of any claims or demands that either Final - 9/25/06 13 ~ ' ' s ~ i may now or hereafter have against the other for support, maintenance, alimony or alimony pendente life. HUSBAND and WIFE further, voluntarily and intelligently, waive and relinquish any right to seek from the other any payment for spousal support, alimony, alimony pendente life and maintenance. WIFE shall be responsible for her own medical insurance after the entry of the divorce decree. HUSBAND agrees to provide WIFE with the contact information to allow her to continue his present COBRA coverage in the event she should so choose at her sole cost and expense. SECTION IV CUSTODY 1. CUSTODY The parties agree that custody will be handled by a separate agreement of the parties. SECTION V SUPPORT. ALIMONY PENDENTE LITE, ALIMONY 1. SUPPORT A support action has been filed by WIFE to PACSES Case Number 048107434 in the Court of Common Pleas of Cumberland County. There is an appeal pending by HUSBAND to a Support Order entered on behalf of WIFE and the children on July 14, 2005. HUSBAND shall terminate the appeal and WIFE shall terminate any anticipated discovery. The parties agree that in light of HUSBAND'S recent employment history, as well as his present unemployment, the Final - 9/25/06 14 -.i l ` f ` ~ '~ Order shall be amended retroactively to the date of filing to provide that HUSBAND shall owe support of NINE HUNDRED EIGHT-FIVE DOLLARS ($985.00) per month for the support of his minor children and no support for his spouse. Given that HUSBAND has made the ordered payments, he shall have a significant credit on his account at Domestic Relations. The parties agree that no actual cash payment for child support shall be due at Domestic Relations for six (6) months (commencing September 1, 2006 and ending February 28, 2007). Thereafter, and continuing until the credit created by the retroactive application of this Agreement is extinguished, HUSBAND shall be entitled to apply one-half (1/2) of the ordered monthly amount from this existing credit. until the credit if fully extinguished. By way of illustration, during the period of September, 2006 through February, 2007, HUSBAND'S account shall continue to charge at the agreed upon NINE HUNDRED EIGHTY-FIVE DOLLARS ($985.00) but no payments shall be required and the credit shall be reduced. Effective March 1, 2007, the account shall charge at $985.00 per month but Husband shall only be required to pay $492.50 and $492.50 shall be reduced from his credit. Should HUSBAND obtain employment during this six (6) month interim period, WIFE shall have the right to petition Domestic Relations to evaluate the agreed upon support amount. HUSBAND shall not petition for a reduction of the support during the six month time period identified in this paragraph. In the interim, HUSBAND shall continue to be responsible to carry both children on medical insurance. HUSBAND shall also pay to WIFE fifty-three percent (53%) of unreimbursed medical costs incurred for either child which exceeds the TWO HUNDRED FIFTY DOLLARS ($250.00) per year. Final - 9/25/06 15 a ' ~ ~ ~ ~ f SECTION V 1. CONDITION PRECEDENT TO THE AGREEMENT'S EFFECTIVENESS The parties acknowledge that this Agreement shall become effective when actually signed by both parties. O P J. L FRANCES M. FENCEL Final - 9/25/06 16 1.. ~ ~ 1 f ~l 1~`I before me this 2 day of September, 2006. ,~BARA Ut,IIPL6SULLIVAN Notary Public NEWCUMBERLAND BOROUGH CUMBER~~ COUNN Commission Expires Nov 15, 2007 COMMONWEALTH OF PENNSYLVANIA ) SS. COUNTY OF CUMBERLAND ) Before me, the undersigned officer, a Notary Public in and for said Commonwealth and County, personally appeared JOSEPH J. FENCEL, who being duly affirmed according to law, deposes and says that the facts and matter set forth in the within and foregoing Marital Settlement Agreement are true and correct to the best of his knowledge, information and belief. COMMONWEALTH OF PENNSYLVANIA ~ SS. COUNTY OF CUMBERLAND ) Before me, the undersigned officer, a Notary Public in and for said Commonwealth and County, personally appeared FRANCES M. FENCEL, who being duly affirmed according to law, deposes and says that the facts and matter set forth in the within and foregoing Marital Settlement Agreement are true and correct to the best of her knowledge, information and belief. and subscribed to before me this Z~ day of September, 2006. Y PUBLIC My commission expires: (SEAL) NOTARIAL SEAL BARBARA SUMPLE-SULLIVAN Notary Public NEWCUMBERLAND BOROUGH CUMBERLAND COUNTY M Commission Expires Nov 15, 2007 Final - 9/25/06 17 My commission expires: ~ K ) } ~ ~ } ~ EXHIBIT "A" ~ ~ ~ AGREEMENT ~, ~. ~- _. This agreement is made this , by and between Joseph J. Fencel (hereinafter "Husband") and Frances M. Fencel (hereinafter "WIFE") WITNESSETH: WHEREAS, Husband and Wife are involved in the divorce proceedings filed in Cumberland County Docket No. 04-6038; WHEREAS, the litigation is on going but the parties have reached a full and final agreement concerning the disposition of personal property and contents in the marital home (hereinafter "Personalty"); WHEREAS, the parties desire that this agreement be final on the disposition of said Personalty and that any further reference or inclusion of these assets be deleted from further disposition in the divorce litigation; NOW THEREFORE, the parties, intending to be legally bound, do agree as follows: 1) INCORPORATION OF PREAMBLE AS A MATERIAL TERM OF THE AGREEMENT: The parties incorporate into this Agreement as a material term the whereas provisions above. 1 L ~ ~ 1 c ~+ ~ 2) DIVISION OF PERSONAL PROPERTY: With the exceptions specifically stated herein, the parties agree that all items of household or personal property in the present possession of either party shall be the sole and separate property of that individual. Each of the parties do hereby specifically waive, release, renounce and forever abandon whatever claims, if any, he or she may have with respect to any of the Personalty in the sole and separate property of the other. The parties agree that the only outstanding issues of Personalty is division of family photographs and return of jewelry. Duplicate family photographs shall be divided between the parties. Further, Husband shall be allowed to make copies of any and all family photographs he shall desire. Within three (3) days of signing this Agreement, Husband also agrees to return Wife's engagement ring, Wife's wedding band, Wife's pearl pendant and other jewelry of Wife's which he removed after separation. This Agreement shall constitute a bill of sale for said property. This Agreement does not apply to distribution of vehicles 3) CASH PAYMENT TO HUSBAND: In order to effectuate an equitable division of the value of this Personalty, Wife does agree to pay to Husband the sum of Five Thousand Dollars ($5,000.00) in full and final 2 4 k ~ • / -a consideration of any claims related to household or Personalty upon execution of this Agreement. 4) NOT BAR TO FURTHER PROCEEDINGS: This Agreement shall in no way be used or interpreted as full settlement or resolution of-any other issues pending between the parties in the divorce. All such claim and rights are preserved. IN WITNESS WHEREOF, INTENDING TO BE LEGALLY BOUND, the parties have caused this Agreement to be duly executed and sealed the day and year first above written. se J. Fen 1 ~~ Frances M. Fencel 3 ~,.ri COMMONWEALTH OF PENNSYLVANIA COUNTY OF ~~-~~" `~`, ) SS. ~ 1K s'! Before me, the undersigned officer, a Notary Public in and for said Commonwealth and County, personally appeared Joseph J. Fencel, who being duly affirmed according to law, deposes and says that the facts and matter set forth in the within and foregoing Agreement are true and correct to the best of his knowledge, information and belief. Affirmed and subscribed to before me this ~~ ~ day of ~ , 2005. NOTARY PUBLIC e My commission expires: COMMONWEALTH OF PENNSYLVANIA Natarial Seat/ Linda L FetterhofF, Notary Public Deny Tvup.. Dauphin Courriy My C~ Expires Nov. 8, 2007 Member, PennsylvanSE~)ion Of Notaries COMMONWEALTH OF PENNSYLVANIA } SS. COUNTY OF CUMBERLAND- ) Before me, the undersigned officer, a Notary Public in and for said Commonwealth and County, personally appeared Frances M. Fencel, who being duly affirmed according to law, deposes and says that the facts and matter set forth in the within and foregoing Agreement are true and correct to the best of her knowledge, information and belief. subscribed to before me this/~~~ da of 005. .L~ Y NOTARY PUBLIC My commission expires: wowtuu sou. e~-Rtwa- sty-suttvN+ Notary l~ubfYC eoaotwt+ tik coma o t~~ s. zoos 4 (SEAL) ~ i ~ ,••. R'~7 ~ '"~ ~~ J 4 ~_ ~ 1 "~~ ) . J W d Barbara Sumple-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, PA 17070 (717)774-1445 Counsel for Petitioner FRANCES M. FENCEL, Plaintiff v. JOSEPH J. FENCEL, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET N0.04-6038 IN 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 §3301(c) of the Divorce Code. 2. Date and manner of service of the complaint: Acceptance of Service dated December 6, 2004, filed December 13, 2004. 3. Date of execution of the Affidavit of Consent required by § 3301(c) of the Divorce Code: by Plaintiff: September 25, 2006; by Defendant: September 25, 2006. 4. Related claims pending: All matters have been resolved pursuant to the Marital Settlement Agreement reached by the parties dated September 25, 2006 and incorporated, but not merged, into the Decree. See paragraph 5, page 4 of the Agreement. 5. Date Plaintiff s Waiver of Notice in §3301(c) Divorce was filed with Prothonotary: October 24, 2006. Date Defendant's Waiver of Notice in §3301(c) Divorce was filed with Prothonotary: October 24, 2006. ~~ Dated: ~ 2007 Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070-1931 (717)-774-1445 Supreme Court ID #32317 Attorney for Plaintiff Bazbaza Sumple-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, PA 17070 (717) 774-1445 Counsel for Petitioner FRANCES M. FENCEL, 1N THE COURT OF COMMON PLEAS Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA v. JOSEPH J. FENCEL, Defendant DOCKET N0.04-6038 IN DIVORCE CERTIFICATE OF SERVICE I, Barbara Sumple-Sullivan, Esquire, do hereby certify that on this date, I served a true and correct copy of the foregoing Plaintiffs Praecipe to Transmit Record, in the above-captioned matter upon the following individual by first class mail, postage prepaid, addressed as follows: John J. Connelly, Jr., Esquire James Smith Dietterick & Connelly, LLP 134 Sipe Avenue Hummelstown, PA 1; DATED: , 2007 Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070 (717) 774-1445 Supreme Court I.D. No. 32317 Attorney for Plaintiff C"? ~ C7 ~ ~ -ri -~ ~, ~ _ , `~~ _ 4i -- Ul ~j .L -'. ~ ~ t • R Frances M. Fence) Plaintiff IN THE COURT OF COMMO~PLEAS CUMBERLAND COUNTY, P SYLVANIA VS. J_ oseph J. Fencel Defendant LAW QUALIFIED DOMESTIC RELATIONS ORDER 1. The Court intends this Order to be a Qualified Domestic Relations Ox~d~r ("QDRO") within the meaning of §414(p) of the Internal Revenue Code of 1986 ("Code"). 2. This Order creates and recognizes the existence of the Alternate Payee' right to receive a portion of the benefits payable with respect to the Participant. 3. This QDRO relates to the provision of marital property rights to the ernate Payee pursuant to a Marriage Settlement Agreement entered into by the parties on Se~ tuber 25, 2006. 4. This QDRO applies to the Tyco Electronics Pension Plan-AMP ("Plan' d any successor thereto. Joseph J. Fencel ("Participant") is a Participant in the Plan. antes M. Fencel ("Alternate Payee"), the former spouse, is the Alternate Payee for purpos s of this QDRO. 5. The Participant's name, mailing address, Social Security number and ~d~te of birth are: Joseph J. Fencel 4834 E. Trindle Road, Apt. 3 Mechanicsburg, PA 17050 Social Security No.: 178-60-1175 Date of Birth: March 18, 1962 6. The Alternate Payee's name, mailing address, Social Security number d date of birth are: Frances M. Fencel I 508 Deubler Road Camp Hill, PA 17011 Social Security No.: 185-60-5225 Date of Birth: February 11, 1964 It is the responsibility of the Alternate Payee to keep a current mailing) ddress on file with the Plan at all times. 7. The Alternate Payee is hereby awarded 50% of the Participant's accrue enefit under the Plan as of February 1, 2002. The Participant's accrued benefit is a liability of e Plan equal to a monthly benefit payable for the Participant's life commencing on the first da the month coincident with or next following his 65th birthday. The actuarial equivalent (det ed in accordance with Plan rules and procedures in effect) of the portion of the Particip 's accrued benefit hereby assigned to the Alternate Payee shall be payable to the Alternate P ee, at the Alternate Payee's election, (i) at any time on or after the earliest date that the P ipant would CIVIL ACTION - IN DIVORCE NO. 04-6038 ..~DRO Page 2 be eligible to commence receipt of his Plan accrued benefit (the "Earliest Retire without regard to whether the Participant has in fact commenced receipt of his Plan accrued benefit, (ii) in any form of payment the Participant would be eligi subject to the Plan's early payment reduction factors applied from the Particip~ commenced prior to the Participant's attainment of age 65; with the exception i may the Alternate Payee elect payment in the form of a joint and survivor anni spouse of the Alternate Payee as the joint annuitant and that the form of paym Payee may elect is subject to the limitations of Section 401(a)(9) of the Internal Payments must commence to the Alternate Payee on the date p~ Participant commence under the Plan if she fails to elect an earlier benefit The form of payment to the Alternate Payee shall be a life annuity she fails to elect a different form of payment. ant Date"), ~n remaining to elect and (iii) 's age 65 if t in no event T with a new t the Alternate 'venue Code. to the date. lifetime if In the event the Alternate Payee commences benefit payments prior t he Participant's retirement and the Participant subsequently commences Plan benefit payments der conditions of eligibility for an early retirement subsidy, the benefit payable to the Alternat ayee shall be re-calculated prospectively to provide to the Alternate Payee a proportionate sh of such early retirement subsidy. In addition to the above, the Alternate Payee shall receive a pro rata postretirement cost-of-living adjustments or other economic improvements made Participant's benefits on or after the date of his retirement. Such pro rata share calculated in the same manner as the Alternate Payee's share of the Participant' benefits is calculated pursuant to this Paragraph 7. Notwithstanding the language set forth in this Paragraph 7, in the evE Alternate Payee becomes entitled to a qualified preretirement survivor annuity t 8 of this Order, then the Alternate Payee's right to a share of the Participant's bE for under this Paragraph 7 shall be terminated as of the date of the Participant's preretirement death benefit shall be payable to the Alternate Payee in lieu of am which she may be entitled under the terms of this Order. 8. In the event the Participant predeceases the Alternate Payee, and neii Participant nor the Alternate Payee has commenced their benefits under the Pla Payee shall be designated as the surviving spouse of the Participant for the pure establishing the Alternate Payee's entitlement to receipt of the preretirement sup For purposes of determining the eligibility for such surviving spouse benefit, the and the Participant have satisfied the one (1) year marriage requirement as enui §§401(a)(11) and 417(d) and as may be required under the provisions of the Plan. This designation applies to the portion of Participant's accrued benefit Alternate Payee in Paragraph 7 of this Order. Further, if the Plan provides for any preretirement death benefit in preretirement survivor annuity to which a spouse would be entitled, the Alter ~e of any the X11 be that the ~r Paragraph :its as called nth, and such her benefits to the e Alternate of •r annuity. mate Payee .ted in Code arded to of a qualified vee shall be ~. r ~ ~DRO Page 3 designated as the beneficiary of such death benefit with respect to the portion o~f the Participant's accrued benefit awarded to the Alternate Payee under the order. 9. In the event the Alternate Payee dies prior to commencement of her nefit payments pursuant to this order, the portion of the Participant's accrued benefit assigned t the Alternate Payee pursuant to this order shall revert to the Participant. 10. In no event shall the Alternate Payee have greater benefits or rights her than those which are available to the Participant. The Alternate Payee is not entitled to benefit not otherwise provided by the Plan. The Alternate Payee is only entitled to the spe i c benefits offered by the Plan as provided in this QDRO. All other rights, privileges and o~ ions offered by the Plan not granted to Alternate Payee are preserved for the Participant. j 11. The Plan shall issue individual tax forms to the Participant and Alte~jx~te Payee for amounts paid to each such person. 12. In the event that the Plan inadvertently pays to the Participant any e efits that are assigned to the Alternate Payee pursuant to the terms of this QDRO, the Partic' t shall immediately reimburse the Alternate Payee to the extent that he has received s benefit payments and shall forthwith pay such amounts so received directly to the Alte to Payee within ten days of receipt. In the event the Plan inadvertently pays to the Alternate P e any benefits that are not assigned to her pursuant to the terms of this QDRO, the Alternate yee shall immediately reimburse the Participant to the extent she has received such bene payments and shall forthwith pay such amounts so received directly to the Participant within t days of receipt. 13. In the event that the Plan is terminated, whether on a voluntary or in luntary basis and the Participant's benefits become guaranteed by the Pension Benefit Guar t Corporation (PBGC), the Alternate Payee's benefits, as stipulated herein, shall also be guara~t ed to the same extent in accordance with the Plan's termination rules and in the same ratio as t~ Participant's benefits are guaranteed by the PBGC. 14. The Plan Administrator promptly shall notify the Participant and the ternate Payee of the receipt of this QDRO and shall notify the Participant an the Alternate Pay of the Plan's procedures for determining the qualified status of this QDRO. The Plan Admini ator shall determine the qualified status of the QDRO and shall notify the Participant and e Alternate Payee of the determination within a reasonable period of time after receipt of thi DRO. 'j . (~DRO Page 4 The Court retains jurisdiction over this matter as provided by law. IT IS ORDERED This 23 ~ day of _ f*~'+^`~-, , 20 ~ ~ PLAINTIFF/ALT/nE,~RNATE PAYpEE Signature / Date: a/ ~ a f 0 7 Attorney f 1 ntiff/Alternate Payee: Jud of the G.-,.~c~a '~ Court DEFENDANT/PARTICI Si a re Date: Z ~ ~ 7 Attorney for De~dant/P~r~,ic~~r~i~: Date: ~~.3~~ Print Name and Mailing Address of Attorney: Barbara Sample-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070 Telephone Number: (717) 774-1445 Date: ~ 1 C! ' ~-~ Print Name and Mailing ess of Attorney: John_J. Connelly,) r., Esquire P.0. Box 650 Hershey, PA 17033 Telephone Number: (717) 3 3- 3 2 8 0 ~~`~ ~" ,.~ `~ ~ Gold ~~n~ ,. „~.~ ,„ ~: t\..:. 4,',~ ~ - ,i_Jf ~ (~'~~~ [N THE COURT OF COMMON P OF CUMBERLAND COUNTY y. STATE OF ~ PENNA. k ~_ PRP,NCES M . FENCEL I I VERSUS JOSEPH J. FENC.EL No. DECREE IN DIVORCE AS AND NOW, ~~w°~, Z3'O 2pO? IT 1S O ERED AND DECREED THAT Frances M. Fencel PLAI TIFF, AND Joseph J Fencel D E F T ri D A N T, ARE DIVORCED FROM THE BONDS OF MATRIMONY. THE COURT RETAINS JURISDICTION OF THE FOLLOWING CLAIMS HICH HAVE BEEN RAISED OF RECORD IN THIS ACTION FOR WHICH A FINAL ORQ R HAS NOT YET BEEN ENTERED; All matters have been resolved pursuant to the Marital Settleme>~t~ Agreement into the Decree. BY THE C URT: l ATTES ., .. J PROrTM-10NOTARY . ', L.~`~'~ vvL~. i iYiv1 - Ll V l: - V L:1\JllJ1V J.1.Y1. - 1VVUGGVII'Iltll~ 1"~t~G 1 Vl G ` '~ Notice of Bankruptcy Case Filing A bankruptcy case concerning the debtor(s) listed below was filed under Chapter 7 of the United States Bankruptcy Code, entered on 04!26!2007 at 10:51 AM and filed on 0412b/2007. Joseph J Fence! 4834 E Trindle Road Mechanicsburg, PA 17050 SSN: xxx-xx-1175 United States Bankruptcy Court Middle District of Pennsylvania 6~ G(~8 The case was filed by the debtor's attorney: James M Bach 352 South Sporting Hill Road Mechanicsburg, PA 17050 717 737-2033 The case was assigned case number 1:07-bk-01270-RNO to Judge Robert N Opel. In most instances, the filing of the bankruptcy case automatically stays certain collection and other actions against the debtor and the debtor's property. Under certain circumstances, the stay may be limited to 30 days or not exist at all, although the debtor can request the court to extend or impose a stay. If you attempt to collect a debt or take other action in violation of the Bankruptcy Code, you may be penalized. Consult a lawyer to determine your rights in this case. If you would like to view the bankruptcy petition and other documents filed by the debtor, they are available at our Internet home page http://www.pamb.uscourts.gov/ or at the Clerk's Office, U.S. Bankruptcy Court, Ronald Reagan Federal Building, PO Box 908, Harrisburg, PA 1710$. You may be a creditor of the debtor. If so, you will receive an additional notice from the court setting forth important deadlines. Arlene E Righter Clerk, U.S. Bankruptcy Court If PACER Service Center II ~ Transaction Receipt ~ 12:06:05 'ACER https://ecf.pamb.uscourts.gov/cgi-bin/NoticeOfFiling.pl? 171734 4/26/2007 1 Login: ~m0226 Client Code: I ~I Notice of Search 1:07-bk-O1270- Description• Filing Criteria: RNO ia~c~.~l~ I~mm~uierages:~~i ~~~.osi: (IU.U~S II https://ecfpamb.uscourts.gov/cgi-bin/NoticeOfFiling.pl?171734 4/26/2007 ff ~ E~= LiS ~..p ~ ~,- -~ _ ~y,_._ ~~ ~~ ~ .; ~ ` ~ ti , ~ t li' ~~ ?~ a s s_. d --- ~ t~ JAMES SMITH DIETTII2IQC & CONNELLY LLP VIA FACSIMILE 240-6452 AND U.S. MAIL The Honorable Kevin A. Hess Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Apri127, 2007 Re: Frances M. Fencel v. Joseph J. Fencel Docket No. 04-6038 Dear Judge Hess: John J. Connelly, )r. jjc~sdc.com FAX 717.533.777] j~ I am enclosing a copy of a Notice of Bankruptcy Case Filing indicating that my client, Joseph J. Fencel, filed for bankruptcy on Thursday, Apri126, 2007 at 10:51 a.m. Given the status of the bankruptcy, all proceedings in State Court must stay pending the completion. This would therefore require the cancellation of the hearing scheduled for Monday, Apri130, 2007 at 3:00 p.m. I trust this correspondence will satisfy your request that we provide the Court notice of the stay. V~'Y YOUrS, . Connelly, Jr. JJC/mbl Enclosure cc: Barbara Sumple-Sullivan, Esquire Joseph J. Fencel P.O. BOX 650 HERSHEY, PA 17033 Courier Address. 134 SIDE AVENUE HUMMELSTOWN, PA 17036 TEL. 717.533.3?80 WWW.JSDC.COM GARY L. JAMES MAX J. SMITH, JR. .TORN J. CONNELLY, JR, SCOTT A, DIETTERICK JAMES F. SPADE MATTHEW CHABAL, III SUSAN M,KADEL .JARAD W. HANDELMAN DONNA M. MULLIN NEIL W. YARN COURTNEY K. POWELL KIMBERLY A, BONNER .JEFFREY M. MCCORMICK KAREN N. CONNELLY OF COUNSEL: GREGORY K, RICHARDS BERNARD A. RYAN, JR.