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HomeMy WebLinkAbout04-6472C Barbara Sumple-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, PA 17070 (717) 774-1445 ROBERT D. BERRY, Plaintiff V. SHIRLEY J. DUNN, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. ()q- 6 `t' -? EQUITY ACTION 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 action within twenty (20) days after this notice and pleading are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the pleading or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE Carlisle, Pennsylvania 17013 (717) 249-3166 Barbara Sumple-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, PA 17070 (717) 774-1445 ROBERT D. BERRY, Plaintiff V. SHIRLEY J. DUNN, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO: EQUITY ACTION COMPLAINT Plaintiff, Robert D. Berry, an unmarried individual residing at 647 Alexander Spring Road, Carlisle, Cumberland County, Pennsylvania 17013. 2. Defendant, Shirley J. Dunn, an unmarried individual residing at 104 College Hill Road, Enola, Cumberland County, Pennsylvania 17025. 3. Plaintiff and Defendant commenced a romantic relationship in August, 1998. 4. In March, 1999, Plaintiff proposed marriage to Defendant, the proposal was accepted by Defendant and Plaintiff presented Defendant with an engagement ring. 5. At all times relevant hereto, Plaintiff acted in reliance upon the completion of the marriage between the parties. 1 6. In June, 1999, Plaintiff and Defendant began residing together in Plaintiff's home in Stafford, Virginia. 7. After Defendant moved in with Plaintiff, Defendant convinced Plaintiff that, in order to make room for her items, he should give away many of his household items to Defendant's friends and family, which Plaintiff did do. 8. Defendant left her job in June, 1999 after she moved in with Plaintiff. 9. In or around July, 1999, Plaintiff lost his job in Virginia and cashed in an Individual Retirement Account in the amount of Seventy Three Thousand Eight Hundred Seventy One Dollars and 47/100 ($73,871.47). The proceeds of which he used to support himself and the Defendant. 10. Plaintiff then found work in Cumberland County, Pennsylvania in August, 1999 and Plaintiff commuted weekly between Virginia and Pennsylvania until in or around February, 2000. 11. During 2000, Plaintiff, at the request and behest of Defendant, opened joint checking and savings accounts at various financial institutions. 12. Defendant insisted these accounts be jointly held by both parties to facilitate bill payment while Plaintiff was out of town on business. 2 13. In February, 2000, after the sale of Plaintiff s singularly titled home in Virginia, Plaintiff purchased a home at 1111 Tiverton Road, Mechanicsburg, Cumberland County, Pennsylvania 17050. 14. At the time of the purchase, Plaintiff paid Thirty Eight Thousand Five Hundred Forty-Seven Dollars and 83/100 ($38,547.83) of his own separate money for acquisition of the home. 15. At the time of purchase, Defendant did not contribute any monies towards the acquisition of the home in 2000. 16. In contemplation of the parties' marriage, Plaintiff allowed Defendant's name to be placed on the deed as tenants in common. 17. After acquisition of the home, Plaintiff again paid a total of Thirty Eight Thousand One Hundred Seventy-Eight Dollars and 27/100 ($38,178.27) of his separately owned monies to "upgrade" the home and increase its value. 18. In October, 2000, Defendant began to work for the first time since June of 1999 at Commerce Bank. 19. In December, 2001, relying on the parties future marriage, Plaintiff paid Eight Thousand Six Hundred Ninety Eight Dollars and 61/100 ($8,698.61) of his separate money in costs and fees for the refinance of the mortgage on the 1111 Tiverton Road, Mechanicsburg, Pennsylvania property. 20. Incident to the refinancing, Defendant, again, failed to contribute any of her own separate funds. 21. During the period of January, 2002 through August, 2003, the parties continued to reside together and Plaintiff believed the marriage would be consummated. 22. Due to financial difficulties, Plaintiff had to sell the home located at 1111 Tiverton Road and it was listed for sale on or about August 20, 2003. 23. Within one (1) week of listing the property, Defendant vacated the home while Plaintiff was out of town. 24. After the August, 2003 separation and continuing until January, 2004, Defendant continued to represent the need for a "time of healing." and the parties would continue to share meals, etc., causing Plaintiff to believe reconciliation would occur. 25. During the period from listing until the sale of the house, Plaintiff paid Thirteen Thousand Seven Hundred Sixty-Nine Dollars and 14/100 ($13,769.14) toward the Tiverton house mortgage, repairs and upkeep. Defendant paid nothing. 26. Also, in November, 2003, while Plaintiff was out of town, Defendant closed the parties' Commerce Savings Account Number 0513189209, which had a balance of Thirty Seven Thousand Seven Hundred Seventy-Seven Dollars and 02/100 ($37,777.02) with Defendant taking Eighteen Thousand Dollars and 00/100 ($18,000.00) and giving Plaintiff Nineteen Thousand Seven Hundred Seventy-Seven Dollars and 02/100 ($19,777.02). Plaintiff did receive the proceeds of the parties' jointly titled Commerce Checking account with a value of Four Thousand Seven Hundred Seventy Dollars and 63/100 ($4,770.63). 27. Between August, 2000 when the account was opened, and the time Defendant left the home, Plaintiff had contributed the sum of Four Hundred Fifty Nine Thousand Five Hundred Seventy-Nine Dollars and 13/100 ($459,579.13) in the joint Commerce Bank Checking and Savings accounts. Defendant had only contributed the sum of Forty Two Thousand Three Hundred Twenty-Nine Dollars and 41/100 ($42,329.41) into the joint Commerce Bank accounts during the parties' relationship. Plaintiff contributed 91.56% to the account. 28. Yet, when Defendant closed the account, she advised Plaintiff that she was entitled to one half of the account because she was listed as joint owner. 29. Plaintiff disagreed that Defendant should have received the amount she did from the Commerce Bank accounts, but she then agreed to help make payments on the jointly owned 1111 Tiverton Road property mortgage and costs with the money she received from the account. 5 30. However, Plaintiff did not receive any monies from Defendant towards the home at any time. 31. In or around January, 2004, Plaintiff was attempting to deposit money into a bank account the parties jointly owned at Jefferson Securities Bank in West Virginia and he was advised that the account had been closed and the balance was withdrawn by Defendant on November 13, 2003. 32. Plaintiff had no knowledge that this account was closed by Defendant approximately two months prior. 33. When Plaintiff became aware that Defendant had closed the Jefferson Securities Bank account, he proceeded to contact the Bank of Charles Town where the parties also jointly owned Certificates of Deposit. 34. The Bank of Charles Town advised Plaintiff that the Certificates of Deposit were cashed in or around November, 2003 without Plaintiff's knowledge. 35. These Certificates of Deposit were opened for the benefit of Plaintiff and his grandchildren with funds solely owned by Plaintiff. 36. On or about January 9, 2004, Defendant had reimbursed Plaintiff Ten Thousand Four Hundred Sixty One Dollars and 24/100 ($10,461.24) of the proceeds she received from the 6 Bank of Charles Town and Jefferson Securities Bank accounts and it was placed into accounts for Plaintiff s grandchildren. Defendant maintained Two Thousand Two Hundred Sixty-Nine Dollars and 82/100 ($2,269.82). A letter from Defendant to Plaintiff evidencing the reimbursement is attached hereto as Exhibit "A." 37. Defendant additionally has in her possession, two (2) One Thousand Dollar ($1,000.00) U.S. Savings Bonds, purchased by Plaintiff with his Navy Retirement income, and titled jointly in contemplation of the parties' marriage after Defendant convinced Plaintiff to change the names on his U.S. Savings Bonds from his ex-wife's name to Defendant's. 38. Plaintiff was able to secure a contract sale of the Tiverton home in the amount of Two Hundred Eighty-Eight Thousand Five Hundred Eighty Dollars ($288,280.00), which transaction settled on June 28, 2004. 39. At no time, Defendant did not contribute monies to the acquisition, repairs, upkeep and closing costs of the property at 1111 Tiverton Road property. 40. The proceeds from the sale of the home are in an escrow account at Commerce Bank, Account No. 7200046628 and Tax ID. 232516430, and is held by Plaintiff s counsel, Barbara Sumple-Sullivan, Esquire pending division on its distribution. The escrow account had an original balance of One Hundred Six Thousand Six Hundred Eighty-Three Dollars and 20/100 ($106,683.20) and has a current balance of One Hundred Seven Thousand Fifty- 7 Five Dollars and 03/100 ($107,055.03) as ofNovember 31, 2004. A copy of the current balance statement is attached hereto as Exhibit "B." 41. The marriage contemplated by Plaintiff has never occurred. COUNTI PARTITION OF TANGIBLE AND INTANGIBLE PROPERTY 42. Paragraphs 1 through 41 are incorporated herein by reference. 43. Plaintiff added Defendant's name to real property he acquired and bank accounts in anticipation of the completion of the parties' marriage. 44. At all times relevant, the extent of Defendant's ownership was granted only as a conditioned transaction in contemplation of marriage. 45. All assets and investments which became joint by virtue of Plaintiff s reliance on the occurrence of the marriage should be divided on a ratio of the parties' actual respective investments in the real property and in the financial accounts. 46. Since Defendant made no contribution to the real estate, Plaintiff should receive the entire escrowed proceeds of the real estate or One Hundred Seven Thousand Fifty-Five Dollars and 03/100 ($107,055.03) as of date of filing since he has paid all costs relative to acquisition, refinance, monthly obligations, its upkeep, repair and finally, sale. 8 47. Based on the investment ratio in the Commerce Account, Plaintiff should have received 91.56% of the Commerce Bank Account total proceeds or Forty -Two Thousand Five Hundred Forty-Seven Dollars and 65/100 ($42,547.65) in lieu of the Twenty Four Thousand Five Hundred Forty-Seven Dollars and 65/100 ($24,547.65) provided by Defendant. 48. Defendant is liable to Plaintiff for Fourteen Thousand Four Hundred Eight Dollars and 98/100 ($14,408.98) 49. Plaintiff should be returned the two (2) One Thousand Dollar ($1,000.00) Savings Bonds. WHEREFORE, Plaintiff should receive the entire escrow proceeds, plus Fourteen Thousand Four Hundred Eight Dollars and 98/100 ($14,408.98) directly from Defendant, return of his bonds, plus costs of suit, counsel fees and interest. COUNT II UNJUST ENRICHMENT 50. Paragraphs 1 through 49 are incorporated herein by reference. 51. At all times relevant hereto, Plaintiff acted to add Defendant's name to assets of or to be acquired by Defendant solely in contemplation of their marriage. 52. Defendant's contribution to the acquisition or maintenance of the real estate was nothing. 9 53. Defendant's contribution to the financial accounts of Commerce was nominal. 54. At all times relevant, Defendant induced Plaintiff to act towards making property joint in contemplation of their alleged best interest after marriage. 55. The condition of marriage did not occur due to the withdrawal of Defendant from the relationship. 56. Defendant will be unjustly enriched if allowed to retain the proceeds of the Commerce Account, bonds or to receive any portion of the escrow. WHEREFORE, Plaintiff should receive the entire escrow proceeds, plus Fourteen Thousand Four Hundred Eight Dollars and 98/100 ($14,408.98) directly from Defendant, return of his bonds, plus costs of suit, counsel fees and interest. Respectfully DATE: December 27, 2004 c- Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070-1931 (717) 774-1445 Supreme Court I.D. 32317 Attorney for Plaintiff 10 EXHIBIT A COPY January 9, 2004 Robert, Enclosed you will find an official check, in the amount of $ 10,461.24, to cover the balance of the Grand Children's savings account. I also enclosed an up dated record of how I dispersed the funds between the grand children. Please handle the grand children's funds however you deem necessary. This action should make it possible for you to never call me at work, upset for, (as you view it) not handling the grand children's funds properly. Your accusations and innuendo's where very hurtful and unnecessary, as is most of the words you lash out at me, that you somehow are able to get in your head Please see that the funds have changed and I have done very well for the grand children and You. Your actions have made it imperative that I ask you to stop calling my workplace. Please respect this request and call my cell phone, when necessary. Shirley Dunn a 49 z? y ? M ? C^O P~ OD dD C ?_ '? ? m?M?eGD?a?ppfr C V- V et _ r ? N iA V- V- F !' r to r V- 4ow 4ork *4 4& 40 to 44 V- CC cm y m 00 V7 Q ? V- OOOfwco`4N i v O CL Tcg:; CD 00 0 0 0 l ? ' ? p ? p? 00 p if3 0p GD to ? ? 'tT ? M ? ' p C? i_ ? V- V- T- re- rr?p 40 vs, 4& 03f !l M W1. ?R N ? co -NNMMtpODQ ?- r- r V- - r NM N N N lV N N N N t[? M = GO co ?,s ?7 N r N_ '?p M ? W w z ? U r? c ? 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BERRY, Plaintiff V. SHIRLEY J. DUNN, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA EQUITY ACTION NO. VERIFICATION I, ROBERT D. BERRY, hereby certify that the facts set forth in the foregoing COMPLAINT 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: e RER RY ? ' ?,.? ^? _• "' \ ?. . ? ? f::' c.?` ?.? .. ? .._ Barbara Smnple-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, PA 17070 (717)774-1445 ROBERT D. BERRY, Plaintiff V. SHIRLEY J. DUNN, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO: 04-6472 EQUITY ACTION ACCEPTANCE OF SERVICE I, Linda A. Clotfelter, Esquire, hereby accept service and acknowledge receipt of the above- captioned Complaint on behalf of my client, Shirley J. Dunn, having received said Complaint on the j day ofd, 2005 I hereby indicate I am authorized by my client to accept service on her behalf. mda A. Clotfelter, Esquire 021 East Trindle Road, Suite Mechanicsburg, PA 17050 Telephone: (717) 796-1930 Supreme Court I.D.: no li ?..., r? C` _? 11 LF '? "Ci (-1 " ?1t iV ?' ?. ROBERT D. BERRY, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 04-6472 CIVIL VS. SHIRLEY J. DUNN, EQUITY ACTION Defendant NOTICE TO PLEAD: To: Robert D. Berry, Counterclaim Defendant c/o Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070-1931 YOU ARE HEREBY DIRECTED TO PLEAD TO THE NEW MATTER WITHIN TWENTY (20) DAYS OF SERVICE OR A DEFAULT JUDGMENT MAY BE ENTERED AGAINST YOU. LAW FIRM OF LINDA A. CLOTFELTER Dated: 11A AD05 A"Clotfelter, Esquire ev ID No. '72963 5021 East Trindle Road, Suite 100 Mechanicsburg, PA 17050 (717) 796-1930 telephone (717) 796-1933 facsimile ROBERT D. BERRY, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-6472 CIVIL VS. SHIRLEY J. DUNN, EQUITY ACTION Defendant ANSWER WITH NEW MATTER AND COUNTERCLAIMS AND NOW, comes Defendant, Shirley J. Dunn, by and through her counsel, Linda A. Clotfelter, and responds to Plaintiff's Complaint respectfully stating as follows: 1. Admitted. 2. Denied. It is denied that Shirley J. Dunn resides at 104 College Hill Road, Enola, Pennsylvania. For her own protection, Defendant does not wish to reveal her residential address and can be reached via counsel. 3. Admitted. 4. Admitted. 5. Denied. The allegations of this paragraph are denied as Defendant lacks sufficient knowledge or information to determine the truth of the allegations. Therefore, strict proof thereof is demanded at trial. 6. Admitted. 7. Denied. It is specifically denied that Defendant convinced Plaintiff that he should give away many of his household items to Defendant's friends and family. In further answer hereof, Plaintiff took several loads of his property to the dump and Defendant's friends and family received nothing from Plaintiff or Defendant. Plaintiff did, however, give Defendant's desk to Plaintiff's son and Defendant's computer to his cousin because Plaintiff insisted that Defendant must use those items that Plaintiff had set up for Defendant. Therefore, strict proof of the allegations in this paragraph is demanded at trial. 8. Admitted in part and denied in part. It is admired that Defendant left her job in June, 1999, after she moved in with Plaintiff. However, the implication herein that it was solely Defendant's desire to do so is hereby denied. In further answer hereof, Plaintiff did not want Defendant to work after moving in with Plaintiff although Defendant had the option of continuing with her job for another three (3) year contract but turned it down to be with Plaintiff. 9. Admitted. 10. Admitted. 11. Denied. It is specifically denied that Plaintiff opened a joint checking account at the request of Defendant. In further answer hereof, it was Defendant who opened an account at Commerce Bank and asked Plaintiff if he wished to be titled on the account. Defendant has no knowledge of any accounts opened by Plaintiff upon which Defendant was included as a signor. Therefore, strict proof thereof is demanded at trial. 12. Denied. It is specifically denied that Defendant insisted on certain accounts being jointly held to facilitate bill payment while Plaintiff was out of town on business. In further answer hereof, Plaintiff was the individual in the relationship who demanded control of the finances. Defendant was permitted to only pay customary household bills while Plaintiff was out of town and Plaintiff monitored the funds available to Defendant for that purpose. Therefore, strict proof of the allegations of this paragraph is demanded at trial. 13. Denied. It is specifically denied that Plaintiff purchased a home in Pennsylvania after the sale of his Virginia home. In further answer hereof, the home in Pennsylvania was purchased first and the parties had to return to Virginia to settle on Plaintiffs Virginia home. Moreover, Plaintiff handled the finances and did not share same with Defendant. Plaintiff simply told Defendant to pick a home which he intended ro give to Defendant as a gift. Therefore, strict proof of the allegations of this paragraph is demanded at trial. 14. Denied. The allegations of this paragraph are denied as Defendant lacks sufficient knowledge or information to determine the truth of the allegations. Therefore, strict proof thereof is demanded at trial. 15. Admitted in part and denied in part. It is admitted that Defendant did not contribute a monetary sum at the time of the closing on the purchase of the home at issue, however, the implication herein that Defendant refused to do so is denied. In further answer hereof, Plaintiff would not permit Defendant to contribute monetarily to the purchase of the home and limited Defendant's contributions to funds and labor for renovations, Defendant's extensive labor and efforts to the sale of Plaintiff's other home, Defendant's contributions for Plaintiff's grandchildren, and for items needed by Plaintiff personally. Therefore, strict proof thereof is demanded at trial. 16. Admitted in part and denied in part. It is admitted that Defendant's name was placed on the deed as tenants in common, however, the implication therein that it was done solely in contemplation of the parties' marriage or in a manner to limit Defendant's legal interest in the property is denied. In further answer hereof, there are a number of reasons that existed at the time including Plaintiff's insistence that Defendant be a legal owner. Also, the deed is a recorded public record that speaks for itself. Therefore, strict proof of the allegations is demanded at trial. 17. Admitted in part and denied in part. It is admitted that Plaintiff paid a sum to increase the value of the home, however, it is specifically denied that Defendant did not assist financially or otherwise. In further answer hereof, Defendant did help financially with the upgrades to the home, same angering Plaintiff such that Plaintiff wrote a check to reimburse Defendant because of Plaintiff's adamant insistence that Plaintiff provide everything for Defendant. Defendant also contributed in other ways including her efforts on behalf of Plaintiff to prepare and sell his other property and her efforts directly for Plaintiff in this home. Therefore, strict proof thereof is demanded at trial. 18. Denied. It is specifically denied that in October of 2000 Defendant began working for Commerce Bank. Defendant worked for Wa;ypoint Bank in contradiction to Plaintiff's desire that Defendant not work. In addition, any delay in Defendant obtaining employment was due to an injury to her foot caused by Plaintiff and it was the injury caused by Plaintiff that delayed her starting work. Moreover, Plaintiff demanded that Defendant not work and he would purposely antagonize her at night to keep her awake so that she could not perform at work. Therefore, strict proof of the allegation of this paragraph is demanded at trial. 19. Denied. It is denied that the funds utilized in the refinance were solely Plaintiff's funds. In further answer hereof Defendant did participate in the refinance of the mortgage and the funds for same came from the parties' joint savings account, which was contributed to by both parties. Therefore, strict proof of the allegations of this paragraph is demanded at trial. 20. Denied. The implication in this paragraph that it was Defendant's desire to not contribute to the household is denied. If fact, Defendant wished to contribute funds for payment of the mortgage and other expenses, however, Plaintiff refused to permit Defendant to contribute and strict proof of these allegations is demanded at trial. 21. Admitted. 22. Admitted in part and denied in part. It is admitted that Plaintiff had financial difficulties, however, the implication therein that Defendant failed to assist Plaintiff with the finances is denied. In further answer hereof, Plaintiff's financial difficulties were directly due a government investigation and to Plaintiff's activities which resulted in Plaintiff being unable to continue with his employment. Due to Plaintiff's drastic personality changes for the worse and his abuse of Defendant, Defendant was concerned for both parties' finances and made a point of having the mortgage paid ahead by six (6) months at the time she left the home. Therefore, strict proof of the allegations of this paragraph is demanded at trial. 23. Admitted in part and denied in part. It is admitted that Defendant left the home, however, the implication therein that Plaintiff had no prior notice of Defendant's move is denied as the parties discussed it at length. Therefore, strict proof of thereof is demanded at trial. 24. Admitted in part and denied in part. It is admitted that the parties continued to be separated but had a limited relationship, however, it is denied that this was due solely to Defendant. In further answer hereof, Plaintiff indicated to Defendant at the time that he did not know if he wanted to marry Defendant. Moreover, Plaintiff's physical and emotional state deteriorated to the point that he told Defendant that he would be committing suicide and his conduct included continuing harassing telephone calls to Defendant in his attempts to manipulate her to return to Plaintiff, despite the fact that Plaintiff indicated that he was not sure that he wanted to marry Defendant. Therefore, strict proof of the allegation is demanded at trial. 25. Denied. It is specifically denied that Plaintiff paid the sums as alleged in this paragraph and further denied that Defendant made no contributions. In further answer hereof, at that time Defendant had the mortgage payments paid six (6) months ahead with same having been taken from the joint account contributed to by both parties. Therefore, strict proof of the allegation is demanded at trial. 26. Admitted in part and denied in part. It is admitted that the account was closed by Defendant, however, the implication therein that Plaintiff did not know of the closing or that Defendant did anything improper with respect to the account is denied. The allegations regarding the figures in this paragraph that were distributed are also denied. In further response hereof, Defendant initially retained Eighteen Thousand Dollars ($18,000) because she knew she would be distributing to Plaintiff Ten Thousand, Four Hundred Sixty-one and 63/100 Dollars ($10,461.63) from another account which she was not obligated to give to him. In addition, money in the joint account was also contributed to by Defendant, although she only kept Seven Thousand Five Hundred Dollars ($7,500) of all joint accounts with the remainder going to Plaintiff. Therefore, strict proof of the allegations of this paragraph is demanded at trial. 27. Denied. The figures as alleged in this paragraph are denied as Defendant lacks sufficient knowledge or information to determine the truth thereof. Therefore, strict proof thereof is demanded at trial. In further answer hereof, Defendant contributed Fifty-six Thousand, Seven Hundred Twenty and 34/100 Dollars ($56,720.34) towards the parties' joint lives as well as significant and continuing effort to prepare Plaintiff's other home for sale and in the renovations of this home because Defendant thought the parties would be married. If the allegations of this paragraph as alleged by Plaintiff are true then the Forty-two Thousand, Three Hundred Twenty-nine and 41/100 Dollars ($42,329.41) should still be remaining in the accounts. Again, Plaintiff was adamant that Defendant not contribute financially to the parties' properties. Therefore, strict proof of the allegations of this paragraph is demanded at trial. 28. Denied. It is specifically denied that Defendant: demanded one-half (1/2) of the account when it was closed. In further answer hereof Defendant could have retained the sum in excess of Ten Thousand Dollars ($10,000) which she gave to Plaintiff yet she did not do so and Defendant continued to be mindful of Plaintiff's demands with regard to the finances. Therefore, strict proof of the allegation is demanded at trial. 29. Denied. It is denied that the circumstances existed or that the facts developed as alleged by Plaintiff in this paragraph. In further answer hereof, Plaintiff's emotional and medical problems have developed to the extent that Plaintiff was unreasonable and uncontrolled due to his need for medical care. Plaintiff actually attempted to have Defendant arrested for taking the money from the joint account. In addition, despite Defendant's continuing insistence to contribute financially to the parties' household, Plaintiff would not accept her funds. Defendant was able to pay the mortgage ahead for six (6) months so that neither party needed to pay the mortgage at that time. Therefore, strict proof of the allegations in this paragraph is demanded at trial. 30. Admitted in part and denied in part. It is admitted that there were times when Plaintiff did not receive money from Defendant, however, it is denied that this was Defendant's preference. Defendant continually and consistently offered to contribute to the household expenses, but such offers were refused by Plaintiff. Therefore, strict proof of the allegation of this paragraph is demanded at trial. 31. Admitted in part and denied in part. It is admitted that the account was closed, however, the implication that Plaintiff did not have prior knowledge of same is hereby denied or that the closing harmed Plaintiff is denied. This account was titled to Defendant prior to meeting Plaintiff. Plaintiff gave Defendant the authority to move money so that beneficial interest was earned and Plaintiff encouraged that. In further answer hereof, that account was closed prior to the separation of the parties after discussion and Plaintiff had direct knowledge of it. Furthermore, every cent from that account was given to Plaintiff and Defendant was prohibited from contributing to the household due to Plaintiff's unreasonable demands regarding same. Therefore, strict proof of the allegation in this paragraph is demanded at trial. 32. Denied. It is specifically denied that Plaintiff had no prior knowledge that the account was closed by Defendant. In further answer hereof, see response to paragraph 31, above, which is incorporated herein. Prior to the parties' separation, Defendant specifically informed Plaintiff that the account would be closed, however, due to Plaintiff's severe medical problems including multiple personalities, Plaintiff often does not recall certain things. Plaintiff was paid all the money from the account. Therefore, strict proof of the allegation in this paragraph is demanded at trial. 33. Denied. See answer to paragraph 32 above, same being incorporated herein as if fully set forth, and strict proof thereof is demanded at trial. 34. Denied. Defendant lacks sufficient knowledge or information to determine the truth of the averments of this paragraph. In further answer hereof, Defendant did specifically inform Plaintiff that she was going to take steps necessary to earn the best interest rates, although Plaintiff may not remember due to his medical and physiological problems. Moreover, Plaintiff was paid every cent from those Certificates of Deposit and Defendant received nothing, despite the fact that these certificates were Defendant's property, not Plaintiff's. Therefore, strict proof of the allegation of this paragraph is demanded at trial. 35. Denied. It is specifically denied that these Certificates of Deposit were opened for the Plaintiff and his grandchildren. In further answer hereof, those Certificates were Defendant's to do with as she wished and that is the reason Defendant had the authority to manipulate them. Despite the fact that they were Defendant's funds, Defendant chose to give Plaintiff all of the funds from all Certificates due to Plaintiff's continuing demands and harassment about the money and property of the parties. Therefore, strict proof of the allegation of this paragraph is demanded at trial. 36. Admitted in part and denied in part. It is admitted that Defendant gave to Plaintiff certain sums, however, it is denied that those sums were Plaintiff's funds. In further answer hereof, Defendant gave Plaintiff the sum in excess of Ten Thousand Dollars ($10,000) to get Plaintiff to stop harassing Defendant about the accounts. In fact, Plaintiff received all of the money from the accounts. Therefore, strict proof of the allegation of this paragraph is demanded at trial. 37. Denied. It is specifically denied that the Savings Bonds referred to in this paragraph are Plaintiff's. In further answer hereof those Bonds were purchased by Defendant with her own funds and she had told Plaintiff that she had made that purchase. The funds for those Bonds did not come from Plaintiff's retirement money as alleged. Therefore, strict proof of the allegation in this paragraph is demanded at trial. 38. Admitted in part and denied in part. It is admitted that there was a contract on the home, however, it is denied that it was solely Plaintiff's contract. The home was jointly owned by Plaintiff and Defendant. In further answer hereof both parties had to participate in the process for the sale of the home and because Plaintiff's medical situation was so severe at the time, it was Defendant who often spoke to the realtor without Plaintiff's direct knowledge because the realtor had so much difficulty in discussing same with Plaintiff. Therefore, strict proof of the allegation of this paragraph is demanded at trial. 39. Admitted in part and denied in part. It is admitted that Defendant at times did not contribute money to the real estate, however, the implication therein that it was Defendant's preference to be that way is denied. In further answer hereof, Defendant consistently and continually offered to contribute funds to the residence but Plaintiff refused. Defendant did contribute in other ways to Plaintiff and his finances as is more specifically addressed in the New Matter below. Therefore, strict proof of the allegation of this paragraph is demanded at trial. 40. Admitted. 41. Admitted. In further answer hereof, ultimately neither party wanted to marry the other. COUNTI PARTITION OF TANGIBLE AND INTANGIBLE PROPERTY 42. Denied as no response is required thereto. 43. Denied. It is denied that the Plaintiff "added" Defendant's name to the subject real estate as the property was jointly titled since its purchase. Nor did Plaintiff "add" Defendant's name to his accounts. In fact, Defendant added Plaintiff's name to Defendant's accounts with prior notice to him of same. Therefore, strict proof is demanded at trial. 44. Denied. It is denied that the ownership was granted only as a conditioned transaction in contemplation of marriage as there were other reasons for both parties' names to be on the titles to the real estate. Therefore, strict proof thereof is demanded. 45. Denied. The allegations of this paragraph are denied as same state a conclusion of law to which no responsive pleading is required. Therefore strict proof thereof is demanded. 46. Denied. The allegations of this paragraph are denied as same state a conclusion of law to which no responsive pleading is required. Therefore strict proof thereof is demanded. 47. Denied. The allegations of this paragraph are denied as same state a conclusion of law to which no responsive pleading is required. Therefore strict proof thereof is demanded. 48. Denied. Defendant lacks sufficient knowledge or information to determine the truth of the allegations of this paragraph and therefore, strict proof thereof is demanded at trial. 49. Denied. It is specifically denied that Plaintiff is entitled to the two (2) One Thousand Dollar ($1000) Savings Bonds as these are Defendant's sole and separate property. Therefore, strict proof thereof is demanded at trial. WHEREFORE, Defendant respectfully requests that Plaintiff's Complaint be dismissed with prejudice and that judgment be entered for Defendant. COUNT II UNJUST ENRICHMENT 50. Denied as no response is required thereto. 51. Denied. It is denied that Plaintiff added Defendant's name to these accounts as Defendant was the primary account holder and Defendant added Plaintiff's name to the accounts because Defendant believed the parties would marry. Therefore, strict proof thereof is demanded. 52. Denied. It is specifically denied that Defendant contributed nothing to the real estate. In further answer hereof, Defendant contributed her efforts to the household and also contributed to the household finances to the extent that she was permitted to do so by Plaintiff. Plaintiff would not permit Defendant to contribute financially despite Defendant's efforts to contribute, because Plaintiff had to be in complete control of all aspects of both parties' lives and Plaintiff demanded that he be the primary provider for the household. Due to Plaintiff's unreasonable demands on that issue, Defendant had no alternative but to comply to his demands. Therefore, strict proof thereof is demanded at trial. 53. Denied. It is specifically denied that Defendant's contributions to the Commerce accounts were minimal. Defendant was the primary owner and used the accounts essentially for bill paying. In further answer hereof, Plaintiff transferred significant funds out of these accounts to accounts in Plaintiff's name alone and if Defendant's funds as contributed were not used for the household bills, then Defendant is entitled to the return of a significant amount of funds as those received by Defendant from those account was limited to $7,500.00. Therefore, strict proof thereof is demanded. 54. Denied. It is specifically denied that Defendant induced Plaintiff to title the property jointly as it was Plaintiff's preference to do so for a number of reasons. Therefore, strict proof thereof is demanded at trial. 55. Denied. It is specifically denied that the marriage did not occur due solely to Defendant's conduct. In further answer hereof, Plaintiff told Defendant that he did not know if he wanted to marry Defendant. Moreover, Plaintiff continually harassed and abused Defendant to the point where she was not safe in the relationship and had to distance herself from Plaintiff for her own safety. Therefore, strict proof thereof is demanded. 56. Denied. The allegations of this paragraph state a conclusion of law to which no responsive pleading is required. In further answer hereof, Defendant has contributed notably to all aspects of the joint life lived by the parties monetarily and in her personal labor to directly benefit Plaintiff on all levels. Therefore, strict proof thereof is demanded at trial. WHEREFORE, Defendant respectfully requests that Plaintiff's Complaint be dismissed with prejudice and that judgment be entered for Defendant. NEW MATTER WITH COUNTERCLAIMS 57. Defendant hereby incorporates her responses to paragraphs 1 through 56, above, is if fully set forth verbatim. 58. Both parties agreed to title the subject real estate jointly at the time the real property was purchased. (A true and correct copy of the Deed is attached hereto as Exhibit "A" and is incorporated herein as if fully set forth verbatim.) 59. The deed transferring the subject real estate to both Plaintiff and Defendant provides conclusive evidence of the intent with respect to transferring title in the subject real estate to both Parties. 59. Plaintiff is a knowledgeable, literate, person and had the opportunity to read the deed for the subject property at the time of the real estate settlement for the purchase of the property. 60. Plaintiff knew of the conveyance of the subject real estate at the time of the execution of the deed and there was no fraud, accident, or mistake. 61. The nature of the interest conveyed by a deed must be ascertained by the instrument itself. 62. The parties did initially intend to marry and both parties' conduct was in anticipation of marriage and for other various reasons. COUNTERCLAIM I PARTITION OF REAL AND PERSONAL. PROPERTY 63. Paragraphs 1 through 62 above are incorporated herein as if fully set forth verbatim. 64. The Parties owned both real and personal property that was titled jointly. 65. Plaintiff utilized any and all tax deductions incident to the joint ownership of the subject real estate, to Defendant's detriment. 66. The identity of the real property jointly owned by the parties is alleged in Plaintiff's Complaint. 67. The parties also jointly owned certain bank accounts that were initially and primarily titled to Defendant, yet Defendant, with notice to Plaintiff, included Plaintiff as a co- owner on said accounts. 68. The bank accounts owned by the parties included accounts at Commerce Bank, Jefferson Securities Bank in West Virginia, and the Bank of Charles Town. 69. Certain pieces of furniture and other household items were jointly owned by the parties during their relationship. 70. Plaintiff retained most, if not all of the personal property owned by the parties including the funds from the various bank accounts. 71. The laws of equity would require that Defendant be awarded some of the joint personal property improperly retained by Plaintiff. 72. At times relevant hereto, Defendant has used her own funds to assist Plaintiff with his credit problems; she used her own funds to help pay Plaintiff's jeep, truck and motorcycle loans in full; Defendant has contributed to Plaintiff in the form of personal funds contributed to the household and otherwise; and Defendant has contributed by her significant efforts including labor in the repairs and sale of Plaintiff's Virginia home as well as the repairs and upgrades to the subject real estate. 73. Defendant has not been compensated or given proper consideration for her contributions and efforts related to Plaintiff and the real and personal property in which he has an ownership interest. 74. If the Court disregards the intent of the language of the deed and gives Plaintiff consideration for the funds contributed by him, same being alleged as improper by Defendant herein, then Defendant's many contributions and efforts without compensation and/or consideration by Plaintiff, as well as the fact that Plaintiff utilized all of the tax deductions for the jointly titled real estate should also be considered by this Honorable Court. 75. If the Court decides that partition of the Parties' real and/or personal property is necessary, then Defendant seeks to have any real and personal property owned jointly by the parties partitioned. WHEREFORE, Defendant, Shirley J. Dunn respectfully requests that this Honorable Court find for Defendant and against Plaintiff, and that this Court enter and Order that partitions the parties' real and/or personal property such that Defendant is given the property to which she is entitled and grant such other relief as this Court deems just and property. COUNTERCLAIM II 76. Paragraphs 1 though 75 are incorporated herein as if fully set forth verbatim. 77. The bank accounts opened by Defendant but jointly titled at Commerce Bank, Jefferson Securities Bank in West Virginia, and the Bank of Charles Town were liquidated and the funds distributed to Plaintiff, except $18,000.00 from the Commerce Bank account.. 78. Due to Plaintiff's continuing harassment of Defendant, Plaintiff received most if not all of the funds from the joint accounts despite the joint ownership. 79. The parties also owned many items of personal property in the form of household goods. 80. Plaintiff has retained most, if not all of the household goods jointly owned by the parties. 81. Plaintiff was not entitled to all of the items of personal property in the form of household goods that he retained, nor was he entitled to all of the funds he retained from the joint bank accounts and therefore, he has been unjustly enriched. WHEREFORE, Defendant, Shirley J. Dunn respectfully requests that this Honorable Court find for Defendant and against Plaintiff, and that this Court enter and Order finding that Plaintiff has been unjustly enriched, and awarding Defendant the bank account funds, personal property to which she is entitled, and granting such other relief as this Court deems just and property. COUNTERCLAIM III WRONGFUL CONVERSION 82. Paragraphs 1 through 81 above are incorporated herein as if fully set forth. 83. During the parties' relationship, Plaintiff mandated what personal property belonging to each party individually would be retained or disposed of. 84. At times relevant hereto, Plaintiff gave away property belonging to Defendant and by his demands, Plaintiff forced Defendant to sell or give away a bedroom suite, computer, desk, and outdoor furniture and miscellaneous smaller items. 85. Plaintiff prevented Defendant from taking household items from the residence and as a result, Defendant had to expend significant funds to purchase simple items necessary to live. 86. Plaintiff, by his conduct, has wrongfully converted some of Defendant's personal property. WHEREFORE, Defendant, Shirley J. Dunn respectfully requests that this Honorable Court find for Defendant and against Plaintiff, and that this Court enter and Order that partitions the parties' real and/or personal property such that Defendant is given the property to which she is entitled, finds that Plaintiff has been unjustly enriched and has wrongfully converted Defendant's personal property, and awards Defendant sums to which she is entitled, and grants such other relief as this Court deems just and proper. Dated: 1 /A ? 1A l? V Respectfully submitted, LAW FIRM OF LINDA A. CLOTFELTER inda A. Clotfelter, Esquire ttorney ID No. '72963 021 East Trindle, Road, Suite Mechanicsburg, PA 17050 (717) 796-1930 telephone (717) 796-1933 facsimile ROBERT D. BERRY, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-6472 CIVIL VS. SHIRLEY J. DUNN, EQUITY ACTION Defendant VERIFICATION I, SHIRLEY J. DUNN, verify that the statements in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of I8 Pa. C.S. § 4904, relating to unsworn falsification to authorities. Date: ?Q?ra7 OD04 5?1&0,I ?? SHIRLEY J. NN ROBERT D. BERRY, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-6472 CIVIL VS. SHIRLEY J. DUNN, EQUITY ACTION Defendant CERTIFICATE OF SERVICE AND NOW, this I day of January, 2005, the undersigned hereby certifies that a true and correct copy of the foregoing ANSWER WITH NEW MATTER was served upon the opposing party by United Stated First Class Mail addressed as follows: Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070-1931 Dated: 1 A7 AP,95 LAW FIRM OF LINDA A. CLOTFELTER 1"i da A. Clotfelter, EsquTe A torney ID No. 72963 21 East Trindle Road, Suite Mechanicsburg, PA 17050 (717) 796-1930 telephone (717) 796-1933 facsimile rl *?o co C Barbara Sumple-Sullivan. Esquire Supreme Court 432317 549 Bridge Sweet New Cumberland. PA 17070 (717)774-1445 ROBERT D. BERRY, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : NO: 04-6472 SHIRLEY J. DUNN, EQUITY ACTION Defendant PLAINTIFF'S REPLY TO NEW MATTER WITH COUNTERCLAIMS 57. The averments of Plaintiff s complaint set forth in paragraphs I through 56 are incorporated herein as if set forth in length. 58. Admitted in part. Denied in part. It is admitted that the title to the real estate is listed jointly at the time the real estate was purchased. It is denied that this was done with agreement of the parties. It is further denied that a copy of the deed was attached to the pleading. Plaintiff specifically denies any implied legal conclusion that recording the deed in joint names was diapositive of the question of ownership related to the property. It is averred that Plaintiff was not even aware that her name was added to the deed until the date of settlement. 59. Denied. Paragraph 59 is denied as a conclusion of law to which no response is due. By further response, it is averred that the nature of the respective ownership interests is controlled by the agreement of the parties and the contributions of the parties. 60. Admitted in part. Denied in part. It is admitted that Plaintiff is a knowledgeable, literate, person who had the opportunity to read the deed for the subject property at the time of settlement for the purchase of the property. Plaintiff specifically denies any implied legal conclusion that said act was dispositive of the agreement for ownership of the equity interest in the property. 61. Denied. Paragraph 61 is a legal conclusion to which no responsive pleading is due. 62. Admitted. By way of further answer, it is asserted that Defendant terminated the parties plans to marry. COUNTERCLAIM I PARTITION OF REAL AND PERSONAL PROPERTY 63. Paragraphs 1 through 62 of Plaintiff's complaint are incorporated herein as if fully set forth verbatim. 64. Admitted with the clarification that the extent of ownership is at issue in these proceedings. 65. Denied. After reasonable investigation. Plaintiff is without knowledge necessary to form a response as to the truth of the averment and proof of same is demanded at trial. 66. Admitted with the clarification that the real property has already been sold. 2 67. Admitted in part. Denied in part. It is admitted thatjointly titled bank accounts existed. It is denied that these accounts were all initially and primarily titled to Defendant. It is averred that some accounts were opened by Defendant for deposit of her payroll check. She later added Plaintiff s name to these accounts subsequently. A majority of the balances of these accounts were used by Defendant to pay her own credit card debt, moved to other personal accounts of Defendant or given to Defendant's daughter. 68. Admitted. 69. Denied. After reasonable investigation, Plaintiff lacks knowledge as to what specific items of personal property are alleged to be jointly owned by both parties and proof of same, including acquisition documentation, is required at trial. It is also averred that Plaintiff received only the funds from the various bank accounts which Defendant voluntarily tendered to him. It is further noted that Defendant, without notice to or approval from Plaintiff, acted to close the accounts and remove all sums. Only weeks after the closing did Plaintiff learn that Defendant had closed the accounts and taken the proceeds. 70. Denied. It is denied that Plaintiff retained most, if not all of the personal property owned by the parties. It is averred that Plaintiff retained what Defendant failed to remove from the residence and specifically left all personal property of Defendant known by him to be owned by Defendant prior to the commencement of their cohabitation. 3 71. Denied. Paragraph 71 is denied as a legal conclusion to which no responsive pleading is due. 72. Admitted in part. Denied in part. It is admitted that Defendant did contribute some funds to the operations of the household but it is averred that said funds were nominal and were funds which had been paid to her by Defendant. It is admitted that Defendant performed some efforts in repair and sale of Plaintiffs Virginia home but it is denied that said efforts were significant. The remainder of the paragraph is denied. It is further averred that at all times relevant, Defendant lived rent free in Plaintiffs homes. 73. Denied. It is denied that Defendant has not been compensated since she was provided for and lived rent free. It is denied, however, that compensation is due. It is also averred that she received a salary from Plaintiffs business, lived rent free in Plaintiffs house and has failed to contribute toward expenses. 74. Denied. Paragraph 74 is a legal argument and conclusion to which no responsive pleading is due. 75. Denied. Paragraph 75 is legal argument and conclusion to which no responsive pleading is due. WHEREFORE, Plaintiff requestsjudgment in his favor. 4 COUNTERCLAIM 11 UNJUST ENRICHMENT 76. Paragraphs I through 75 of Plaintiff s Complaint and Answer are incorporated herein by reference. 77. Admitted with the clarification that these accounts were in fact voluntarily distributed by the Defendant after being closed and liquidated without even notice to the Plaintiff. 78. Denied. It is denied that Plaintiff harassed Defendant. By way of further reference, it is asserted that Defendant had sole control of the funds since she removed them without notice to or knowledge of Plaintiff and distributed the monies to Plaintiff after his inquiry as to why the accounts were closed. 79. Denied. After reasonable investigation, Plaintiff is without knowledge as to the characterization of many items of personal property in the form of household goods which Defendant avers werejointly owned. 80. Denied. It is denied that Plaintiff retained most if not all of the household goods jointly owned by the parties. By way of further answer, it is asserted that Plaintiff retained only items which Defendant left at the time she left the home. 81. Denied. Paragraph 81 is denied as a conclusion of law to which no responsive pleading 5 is due. It is further asserted that Plaintiff did not receive all of the items which the parties accumulated during their cohabitation. WHEREFORE, Plaintiff requests judgment in his favor. COUNTERCLAIM III WRONGFUL CONVERSION 82. Paragraph 1 through 81 of Plaintiff s Complaint and Answer are incorporated herein by reference. 83. Denied. It is denied that Plaintiff mandated what personal property belongings to each party individually would be retained or disposed of. It is further asserted that Defendant, not Plaintiff, planned and liquidated the disposition of Plaintiffs assets which required him to repurchase items. 84. Denied. It is denied that Plaintiff gave away property belonging to the Defendant. At all times relevant hereto. Defendant controlled all of her own property. By way of further answer, paragraph 83 is incorporated herein by reference. 85. Denied. It is denied that Plaintiff prevented Defendant from taking household items from the residence. It is averred that Plaintiff left household items in the residence after his relocation that were owned by he and Defendant to expedite the sale of the property. In addition, it is averred that Defendant took household items of Plaintiff that he had left in the residence, including Plaintiffs printer, television cabinet and computer stand, when 6 she had no claim of ownership. The remainder of the paragraph is denied since, alter 86. reasonable inquiry, Plaintiff is without sufficient knowledge to form a belief as to the truth thereof. Denied. Paragraph 86 is denied as a conclusion of law to which no responsive pleading is required. WHEREFORE, Plaintiff requestsjudgment in his favor. Respectfully Dated: Februaryl;?S005 Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070 (717) 774-1445 Supreme Court I.D. 32317 Attorney for Plaintiff Barbara Sumple-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, PA 17070 (717) 774-1445 ROBERT D. BERRY, Plaintiff V. SHIRLEY J. DUNN, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA EQUITY ACTION NO. 04-6472 -CIVIL VERIFICATION I, ROBERT D. BERRY, hereby certify that the facts set forth in the foregoing RESPONSE TO NEW MATTER is 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: I?DoY Barbara SumPle-Sullivan, Esquire Supreme Court 432317 549 Bridge Street New Cumberland, PA 17070 (717) 774-1445 ROBERT D. BERRY, Plaintiff V. SHIRLEY J. DUNN, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO: 04-6472 EQUITY ACTION CERTIFICATE OF SERVICE 1, BARBARA SUMPLE-SULLIVAN, ESQUIRE, do hereby certify that on this date, I served a copy of the foregoing PLAINTIFF'S REPLY TO NEW MATTER OF DEFENDANT, in the above-captioned matter upon the following individual by first class mail, postage prepaid, addressed as follows: Linda A. Clotfelter, Esquire 5021 East Trindle Road. Suite 100 Mechanicsburg, PA 17050V-1 DATED: February2005 Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070-1931 (717) 774-1445 Supreme Court I.D. No. 32317 Attorney for Plaintiff 8 -" G4 G PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: ? for JURY trial at the next term of civil court. ® for trial without a jury. CAPTION OF CASE (entire caption must be stated in full) ROBERT D. BERRY VS. SHIRLEY J. DUNN vs. (Plaintiff) (Defendant) (check one) ® Civil Action - Law ? Appeal from arbitration (other) The trial list will be called on and Trials commence on Pretrials will be held on (Briefs are due S days before pretrals No. 04-647 Term indicate the attorney who will try case for the party who files this praecipe: Barbara Sumple-Sullivan, Esquire Indicate trial counsel for other parties if known: Linda A. Clotfelter, Esquire This case is ready for trial. Signed: Print Name: Barbara Sumple?-Sullivan, Esquire ?C/ ` CX- t/ Attorney for 54:9 Bridge St., New Cumberland, PA 1707 : _Piaintiff Barbara Sumple-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, PA 17070 (717) 774-1445 ROBERT D. BERRY, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. SHIRLEY J. DUNN Defendant EQUITY ACTION NO. CERTIFICATE OF SERVICE I, BARBARA SUMPLE-SULLIVAN, ESQUIRE, do hereby certify that on this date, I served a copy of the foregoing PRAECIPE FOR LISTING CASE FOR TRIAL, in the above- captioned matter upon the following individual by first class mail, postage prepaid, addressed as follows: DATED: A?r Linda A. Clotfelter, Esquire 5021 East Trindle Road, Suite 100 Mechanicsburg, PA 17050 i Irbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070-1931 (717) 774-1445 Supreme Court I.D. No. 32317 Attorney for Plaintiff r? ?, c- ? ? t=n r7 C:; T trr T r= •,i -? J! C., i ?; ?' C _. ....,. ?? T _c i .. ' rl?) `?' ,? ? i? .? ROBERT D. BERRY, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION - LAW NO. 04-6472 CIVIL SHIRLEY J. DUNN, Defendant IN RE: NONJURY TRIAL ORDER AND NOW, this f9 v day of July, 2005, a pretrial conference in the above captioned matter is set for Thursday, August 25, 2006, at 9:00 a.m. in Chambers of the undersigned. BY THE COURT, ?, A. Hess, J. Xarbara Sumple-Sullivan, Esquire For the Plaintiff Inda A. Clotfelter, Esquire For the Defendant Court Administrator Am o`' I no ID :2 Wd S 1 ?nr soda i V! (3 Hl ?0 il, ROBERT D. BERRY, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION - LAW NO. 04-6472 CIVIL at 9:30 a.m. SHIRLEY J. DUNN, Defendant IN RE: PRETRIAL CONFERENCE Present at a pretrial conference held August 25, 2005, were Barbara Sumple-Sullivan, Esquire, attorney for the plaintiff, and Linda J. Clotfelter, Esquire, attorney for the defendant. This is an action for the partition of property jointly titled to the parties. The parties were engaged to be married in March of 1999. While yet unmarried, they purchased certain real estate as joint tenants with the right of survivorship. The property has since been sold and the proceeds put in escrow. The plaintiff maintains that he is entitled to all or most of the proceeds because of the contributions he made to the purchase of the residence. The defendant, citing the case of DeLoatch v. Murphy, 535 A.2d 146 (Pa. Super 1986), contends that the property must be partitioned equally between the parties without regard to their respective contributions towards this acquisition. It is proposed that testimony be taken concerning the respective contributions of the parties with the understanding that the defendant has a standing objection to its relevance. Apparently, there are a large number of documents which will be admitted as exhibits. It is anticipated that most of these will be the subject of stipulation. This comparatively brief hearing is set for Wednesday, November 16, 2005, commencing Kevin y. Hess, J. FiLEO-01"i:K c OF THE f=F ri GT .RY 205 A.UG 25 Ali I!: 26 CUPd!? + :lUTY Barbara Sumple-Sullivan, Esquire For the Plaintiff Linda A. Clotfelter, Esquire For the Defendant Court Administrator Am ROBERT D, BERRY, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 04-6472 CIVIL SHIRLEY J. DUNN. Defendant IN RE: ACTION IN PARTITION BEFORE HESS. J. ORDER AND NOW, this 31 s day of January, 2006, after hearing and consideration of the testimony adduced as well as the stipulation of the parties and memoranda of counsel, it is ordered and directed that: 1. The sum of $43,547.83 shall be paid to the plaintiff from the proceeds of the sale of real estate located at I I I I Tiverton Road, Mechanicsburg, Pennsylvania. The remaining balance of said proceeds shall be divided equally between the parties. 2. The petition of the plaintiff to be reimbursed for upgrades to the foregoing real estate and for mortgage payments and repairs is DENIED. 3. The complaint for partition of the remaining property of the parties previously distributed, including furniture and bank accounts, is DENIED. 6e-, BY THE COURT, Kevin . Hess, J. ;?i„ 1 J "'n? ?.,, . ,:_? .? -,,,?. =0 1???'?L..,,,+r ? X31 Barbara Sumple-Sullivan, Esquire For the Ptaintiff Linda A. Clotfelter, Esquire For the Defendant Court Administrator :rlm ROBERT D. BERRY, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION - LAW NO. 04-6472 CIVIL SHIRLEY J. DUNN, Defendant IN RE: ACTION IN PARTITION BEFORE HESS, J. OPINION AND ORDER This is an equity action in the nature of partition. The hearing in this case was expedited by a comprehensive stipulation entered with respect to most of the facts of the case. We will not reiterate them here but, rather, will touch on the highlights only. The parties were engaged in March of 1999. The defendant, Ms. Dunn, came to live in the plaintiff's home in Stafford, Virginia. From August of 1999 until January of 2000, the plaintiff, Mr. Berry, commuted between his home in Stafford, Virginia and a new job in Cumberland County, Pennsylvania. In February of 2000 the parties purchased a home at 1111 Tiverton Road, Mechanicsburg, Cumberland County, for $242,000.00. The home was titled to Robert D. Berry and Shirley J. Dunn as joint tenants with the right of survivorship. The parties obtained a joint mortgage in the amount of $205,700.00. The settlement costs and the balance of the purchase price, $43,547.83, were paid by the plaintiff. We are satisfied that the real estate, so purchased, was specifically intended to become the marital residence after the marriage of the parties. While the parties resided together, the mortgage was customarily paid from a joint checking account. NO. 04-6472 CIVIL The parties, in fact, opened several joint accounts with the plaintiff making the bulk of the deposits. The parties also purchased furniture, including an expensive bedroom set. The personal property and bank accounts have been dispersed between the parties. The plaintiff contends that he is entitled to the return of most of the cash accounts by virtue of his contributions. It should be noted that both parties made expenditures from the accounts during the course of the engagement. While the parties lived together, cosmetic upgrades were made to the Mechanicsburg residence. These included the addition of a deck, sunroom and landscaping. The cost of these upgrades, more than $38,000.00, was paid by the plaintiff. It is impossible to determine from the record the degree to which the upgrades impacted the actual value of the home. Following an investigation of his business in November of 2002, the plaintiff was suspended from his employment and his income decreased substantially. On August 20, 2003, the plaintiff and defendant placed the Mechanicsburg home on the market due to their financial difficulties. Around that time, Ms. Dunn left the home and Mr. Berry continued to live there. The investigation of the plaintiff and the loss of his employment caused him significant stress which affected his disposition. Apparently, this contributed to the break-up of the parties. They, of course, did not marry. During the time the plaintiff had exclusive possession of the home, he made no rental payments to the defendant. He did, however, pay the mortgage. On June 28, 2004, the Mechanicsburg home was sold for $307,000.00. The proceeds of the sale of the home are being held in escrow. The current balance exceeds $108,000.00. One of the issues in this case involves the question of how the escrow balance should be divided between the parties. NO. 04-6472 CIVIL With one exception, the balances of the parties' joint accounts have been paid to Mr. Berry. However, a Commerce Bank savings account with a balance in excess of $37,000.00 was distributed almost equally between the parties. Because the plaintiff contributed ninety percent of this money, he is seeking a return of some of the funds from Ms. Dunn. In resolving this matter, the case of Nicholson v. Johnston, 855 A.2d 97 (Pa.Super. 2004) is instructive. There the parties, in anticipation of marriage, purchased a home. As here, the parties were named joint tenants with the right of survivorship. Johnston paid the down payment and settlement costs. The Superior Court upheld the decision of the Honorable Penny Blackwell who reached conclusions which are apposite to this case. She observed that not only were the parties engaged and intended to be married, but the wording of the deed represented their commitment at the time of the purchase of the residence. Judge Blackwell also concluded that, after the parties separated, the mortgage expenses incurred by one of the parties offset any claims by the other for rental payments. In reviewing Judge Blackwell's decision, the Superior Court reviewed the law with respect to conditional gifts: In Lindh v. Surman, 702 A.2d 560 (Pa.Super. 1997), affirmed 560 Pa. 1, 742 A.2d 643, a panel of this Court discussed the law of conditional gifts set forth in the Restatement of Restitution: Gifts Made in Reliance on a Relation. A person who has conferred a benefit upon another, manifesting that he does not expect compensation therefore, is not entitled to restitution merely because his expectation that an existing relation will continue or that a future relation will come into existence is not realized, unless the conferring of the benefit is conditioned thereon. Comment: (b) Conditional gifts. The gift may be NO. 04-6472 CIVIL conditional upon the continuance or creation of a relation, and if conditional the donor is entitled to its return if the relation terminates or is not entered into. The condition may be stated in specific words or it may be inferred from the circumstances. Likewise, as in the case of engagement and wedding gifts, justice may require the creation of a condition although the donor had no such condition in mind. (c) Wedding and engagement gifts. Gifts made in the hope that a marriage or contract of marriage will result are not recoverable, in the absence of fraud. Gifts made in anticipation of marriage are not ordinarily expressed to be conditional and, although there is an engagement to marry, if the marriage fails to occur without the fault of the donee, normally the gift cannot be recovered. If, however, the donee obtained the gift fraudulently or if the gift was made for a purpose which could be achieved only by the marriage, a donor who is not himself at fault is entitled to restitution if the marriage does not take place, even if the gift was of money. If there is an engagement to marry and the donee, having received the gift without fraud, later wrongfully breaks the promise of marriage, the donor is entitled to restitution if the gift is an engagement ring, a family heirloom or other similar thing intimately connected with the marriage, but not if the gift is one of money intended to be used by the donee before the marriage. Lindh, 702 A.2d at 561-562 (emphasis added). Additionally, the Reporter's notes recognize: As to gifts other than services or engagement rings the decided cases have generally allowed recovery upon the same basis as in the case of the rings. It is to be noted, however, that in all the cases in which recovery was allowed the money or other things were transferred in contemplation of marriage in the sense that they 4 NO. 04-6472 CIVIL were to be used by the parties after marriage Restatement of Restitution, § 58 Reporter's Notes. Here, it is clear that based on the testimony presented to her, Judge Blackwell found that Johnston extended the down payment monies in question in contemplation of marriage and for the purchase of a property to be used by the parties after the marriage occurred. Id. at 101-102. While we agree with the plaintiff's assertion that he is entitled to the return of his down payment and settlement costs, we cannot agree with his contention that he is entitled to the return of his contributions to the joint bank accounts. Ms. Dunn did not receive any of this money by fraud. Nor do we agree that the creation of joint checking accounts was "for a purpose which could be achieved only by marriage." In fact, expenditures were made from these accounts even prior to marriage. Even if this were not the case, Mr. Berry is not a donor who "is not himself at fault." To the contrary, it was apparently a change in his behavior which caused the parties to drift apart. ORDER AND NOW, this 31 ` day of January, 2006, after hearing and consideration of the testimony adduced as well as the stipulation of the parties and memoranda of counsel, it is ordered and directed that: 1. The sum of $43,547.83 shall be paid to the plaintiff from the proceeds of the sale of real estate located at 1111 Tiverton Road, Mechanicsburg, Pennsylvania. The remaining balance of said proceeds shall be divided equally between the parties. NO. 04-6472 CIVIL 2. The petition of the plaintiff to be reimbursed for upgrades to the foregoing real estate and for mortgage payments and repairs is DENIED. 3. The complaint for partition of the remaining property of the parties previously distributed, including furniture and bank accounts, is DENIED. BY THE COURT, Barbara Sumple-Sullivan, Esquire For the Plaintiff Linda A. Clotfelter, Esquire For the Defendant Court Administrator Am Curtis R. Long Prothonotary (Office of the Protbonotarp (Cum berlanb (iCountp Renee K. Simpson Deputy Prothonotary John E. Slike Solicitor 644 - to 1('72 CVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 28TH DAY OF OCTOBER, 2009, AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R C P 230.2. BY THE COURT, CURTIS R. LONG PROTHONOTARY One Courthouse Square • Carlisle, Pennsylvania 17013 • (717) 240-6195 • Fax (717) 240-6573