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HomeMy WebLinkAbout80-0003 EQUITY DONALD P. BENNETT : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL DIVISION - EQUITY NO. J' EQUITY, 1980 LORETTA BENNETT IN EQUITY NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the 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. Court Administrator Third Floor Cumberland County Court House Carlisle, Pennsylvania 17013 Area Code 717 - 249-1133 DONALD P. BENNETT IN THE COURT OF COM1MON PLEAS OF CUt-iBERLAND COUNTY, PENivSYLVANIA VS . CIVIL DIVISION - EQUITY NO. EQUITY, 1980 LORETTA BENNETT IN EQUITY COMPLAINT 1. The plaintiff, Donald P. Bennett, is an 'adult individual residing at Box 133 , Boiling Springs, Cumberland County, Pennsyl- vania. 2. The defendant, Loretta Bennett, is an adult individual residing at R. D. No. 2 , 17 Hurick Drive, Boiling Springs , Cumberland County, Pennsylvania. 3. The plaintiff and the defendant are husband and wife and own as joint tenants by the entireties a home and property located at R. D. No. 2 , 17 Hurick Drive, Monroe Township, Boiling Springs , Cumberland County, Pennsylvania, more particu- larly described in Exhibit "A" attached hereto and made a part of this complaint. a. The defendant has and continues to physically deny the plaintiff access to the aforesaid jointly owned property in that the plaintiff has changed all the locks on the premises and refused to provide the defendant a key to the new locks. 5. The defendant has requested a key in order to gain access to the aforesaid jointly held property, which request has specifically been made in an exchange of correspondence between ARNOLD,SLIHE&BAYLEY the defendant, defendant' s counsel and the plaintiff ' s counsel ATTORNEYS AT LAW (Aar HILL P1111y ANu"I" pursuant to letters dated January 9 , 1980, January 16 , 1980 and January 21, 1980 , copies of which are attached hereto and marked as plaintiff ' s Exhibits "B" , "C" and "D" . 6. The defendant has continued to deny the plaintiff access to the property pursuant to her stated intentions as set forth in the letter from her counsel to plaintiff 's counsel hereinbefore marked as plaintiff ' s Exhibit "C" and she has not provided the plaintiff with a key for access to the subject property. 7. The aforesaid actions by the defendant in denying the plaintiff access to his jointly owned property and therefore appropriating said jointly owned property to her sole and separ- ate use to the exclusion of the defendant' s rights of joint use constitutes a revocation of the entire joint estate of the parties and is an offer to destroy the entire estate including the jointly held real estate, which offer is accepted by the plaintiff. WHEREFORE, plaintiff prays : A. That the court require an accounting of the prop- . erty, real and personal, owned and held by the parties jointly during their marriage. B. That the court decree a partition of all of the property, real and personal, owned jointly by the plaintiff and the defendant. C. That the court order the sale and division of the aforedescribed jointly held real estate. ARNOLD,SLIEE&BAYLEY D. That the court order the sale and division of all AT[ORN F.YS Ai LAW - CA H,=PE I :Kv„o, personal property owned jointly between the plaintiff and the defendant. 2 - E. That the court implement the relief requested under such terms and conditions as it deems appropriate. F. That the plaintiff be awarded his reasonable counsel fees and costs for these proceedings. G. That the plaintiff be awarded interest and damages for the wrongful appropriation of his property. H. That the court grant such other relief as it deems just and appropriate. (SEAL) Edgar B. ayley Attorney for Plaintiff ARNOLD,SLI%E&BAYLEY ATTORNEYS Ai LAW o C—Hav,P....Y vwxu o COMMONWEALTH OF PENNSYLVANIA) SS. COUNTY OF CUMBERLAND) DONALD P. BENNETT, being duly sworn according to law deposes and says that the facts set forth in the foregoing Complaint are true and correct to the best of his information, knowledge and belief. ccs Donald P. Bennett Sworn to and subscribed before me this day of 1980 Notary Publ' % l W*t. KELLY,Notary Public ibrp Hill,Cumberland Co.,Pa. W#bmmission Expires_Qctt25, 1944 ARNOLD,SLIRE&BAYLEY ATT ..a Ox.xeRNEYe>9S T LAW Cwxr Hivv,Pzxxsvvvwxw >ou r Hf-AT—Mareeny D.J, S)Mt ItinM. A.,or ,a. x..y Hell.lee.. ledi.ea. P. ' r MADE THE •day of ra_�'� ' of ofir Lord one thousand nine hundred seventy two (1972) . in the deur BETiVF,EN LEE M. DEIHL and LILYBELIE R. DEIIIL, his wife, of R. D. 6, Carlisle E.Pennsylvania; and LEROY EFICKES and DORIS .I.1. � y r•Ici�s, his wife, of R. D. 3, Newville, Pennsylvania, hereinafter called , and Grantor S. DONALD P. BENNETT and LORETTA G. BENNETT, his wife, of Monroe Township, Cumberland County, Pennsylvania, hereinafter called Grantee s:. it R7TNESSETH, that in consideration of Thirty Five Thousand Nine Hundred and 00/100 ($35,900.00) Dollarr► in hand paid, the receipt whereof is hereby acknowledged, the said grantors do hereby and convey to the said grant grantee s,their heirs and assigns as tenants by the ' entireties; ALL that certain house and lot of ground situate in Monroe Township, Cumberland County, Pennsylvania, being Lot No. 17 in the Plan of Lots of Section A of "Idhite Rock Acres", dated October 9, 1968 ' recorded in the Recorders Office in , and and for Cumberland County in Plan Book 20, Page 40, bounded and described as follows: i BEGINNING at A point on the Southern line of Horick Drive (40 feet wide) at a permanent survey monument on the line dividing Lots Nos. 16 and 17 on said Plan; thence by the line of Lot No. 16, South 16 degrees 50 minutes Fast 200 feet to a point; thence by the Northern line of Lots Nos. 21 and 20, South 73 degrees 10 minutes blest 208.5 feet; thence by the line of Lot No. 18 on said Plan, North 23 degrees 36 minutes [.'est 198.31 feet to a Point ; thence by the Southern line of Horick Drive by a curve to the richt having a radius of 440 feet, an arc distancele of o f 52 feet to a permanent survey monument; thence continuing; by the Sout line of Horick Drive, North 73 degrees 10 minutes East 180 feet to thrn e Place of BEGINNING. UNDER AND SUBJECT• to the building lines, covenants, restrictions and reservations as recorded with said Plan of Lots; and subject further to the right of the owner of Lot No. 18 of said Plan of Lots to mai.ntci.n, repair and replace as necessary the water main crossing the Northwestern t corner of Lot No. 17, as presently installed and used. 3 EXCEPTING AND RESERVING unto. the Penn Products Corporation, its successors and assigns, all minerals, clay, arid sand, beneath the sur- face of the ground. BEING part of the same premises which Penn Products Corporation by its deed dated October 30, 1968, and recorded in the Recorder's Office aforesaid 'in Deed Book "A", Vol. 23, Page 131, rranted and conveyed unto Lee 2.1. Deihl and Leroy E. Fickes. • Rr.aeAlo ............... - Cumb. Co., Pe. tiool Dist. Cumb. Co.. I X heal Letafe Tran,ler Tra f% Real $rata Transfer Tax { Amt. era ..... .. ...+b.Gn.MO.Cot.Ant. j •-•ti•Ce. Mk Cel.AM. '�'u tj _ MK,,/24pw 948 1 - E • t 5 AND the saidmntor here D s by cvvenant and agree that they generally the property herebytonveyed. will warrant i i - i IN WITNESS WHEREOF, daL grantors have hereunto set their hands and seals the day and year first above written. • �i�tasJ►, aYealed snJi deli►ml t � .......�Jt•Le-f`� ..........»»= ZEAL In the iT�ersate�t f � / ..._.»._...... 1 � `:....r;C•._ .rJ _...._._....... aswL ». .».be........_................ ...._ .. ' I 1 (-I �j��f/,1�. E,,',.. „�--� ri.r � f.��� '�✓r• � •II ''r"`.�•i•t�.�:��_.��^; �. r �._ IN 1 kn Fri W ! �aabP calf'$ tom• 46 Roam" k MA Post Oifke of W11h;n Gnateo is K'� , }:'3 c,L ='•''��. GraAl"WAW o" • i sues i +'J �ryOrn Z State of Pennsylvania d8. N m County of Cumberland On this, the ca-t-t, day of 1;i� . 1972 , before me,' the undersigned officer, peraona!ly appeare(l 7,ee AT• Deihl and Lilybelle R. Deihl, his wife, and Leroy E. Fi.ckes and Doris 11. Pickes, his wife, known to me (or satisfactorily proven) to be the persons whose name s are ' ••, , artbseii,�xd'to t�e�1- within instrument,and acknowledged that they executed the same for the pigr��osesA&ein, VI contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. -'� � !� •;i;� J ,J 1 Cl✓1�A.C�--...._..__... _.�:c�IC�Z3��.. �'ls,-'_�� aS ���.\ t ............................. ...».____...... v :�•• JANICE E HERTZLER• NOTARY Pauc Tula Of Officer; CUMBERLAND COUNTY, CARLISLE, PA. My COMMISSION EXPIRES JANUARY 27TH.t%5 V10K)-g24PACE 949 January 9 , 1980 CERTIFIED MAIL R/R Mrs . Loretta Bennett R. D. No. 2 17 Hurick Drive Boiling Springs, PA 17007 Dear Mrs. Bennett: I have been contacted by your husband, Donald Bennett, of Boiling Springs , Pennsylvania. Mr. Bennett indicates to me that he tried to gain entry into your jointly held property at 17 Hurick Drive last week, but you have Changed all of the locks on the property. My client indicates that he wants you to provide him a key in order that he may gain access to the Oointly-held property at such times as he desires. If you do not provide him a key to the property within five days of the receipt of this letter, you should be advised that he will partition the court to force sell the real estate. You can either leave the key off at this office or send it to me at this address and I will deliver it to him. If you do not d6liver the key as requested, you will be jeopardizing your rights with respect to the property and I suggest you immediately obtain the advice of legal counsel on this matter. Very truly yours , ARNOLD, SLIKE & BAYLEY Edgar B. Bayley EBB/kk (--,X H � TAYLOR P. ANDREWS ATTORNEY-AT-LAW 26 WEST HIGH STREET CARLISLE, PENNSYLVANIA 17013 717/243-0123 January 1E , 1980 Edgar B. Bayley, Esquire Arnold, Slike & Bayley 2109 Market Street P. O. Box 737 Camp Hill,a PA 17011 Re: Your Client: Donald Bennett Dear t �:. Bayley: Please be advised that I have been retained by Mrs . Loretta Bennett and shall be counselling her in the future regarding the various matters which are unresolved between her and her husband, Donald Bennett. In response to your letter of January 9 , 1980 , please be advised that Mrs . Bennett will not give access of her house in Boiling Springs to Mr. Bennett. This is because she is satis- fied that Mr. Bennett only desires to harass her at the premises , and has no desire to actually use the premises for any legitimate purpose. Mr. Bennett has been gone from the household for more than two years and has not even returned to visit for an extensive period of time. In fact, he apparently did not even learn that the locks on the property were changed until many months after the change was made. If your client proceeds with a partition action he should do so with the full understanding that his action may force Mrs . Bennett to new accommodations which will necessarily be much more expensive to maintain than the present carrying expenses of the residence on Horick Drive . Since Mrs . Bennett and her children are entitled to be maintained in the standard of living to which they became accustomed while living with Mr . Bennett, any additional living expenses caused by a forced move will be sought from Mr. Bennett in the form of increased support. ' 'a ..r I Edgar B . Bayley, Esquire Page 2 January 16 , 1980 You should advise me if there is any particular reason why Mr. Bennett desires access to the Horick Drive premises or if there is any particular item of property which he desires to retrieve. It is possible that Mrs . Bennett will have no objection to a - pre-arranged entry for a limited purpose by Mr. Bennett. Sincerely yours , Taylor P. Andrews TPA: ssc cc : Loretta Bennett ARNOLD. SLIKE & BA LE • ::100 NA RICE III HF.I f , Y 0. BOA I:fi f ( AMP 11[L1..PFVNSYI.�A\IA Roll !IHHl�lrf lei. 7:1; :ftr:S ZI January 21 , 1980 DHEA "OF Taylor P. Andrews , Esquire 26 4?est High Street Carlisle, PA 27013 Re : Donald and Loretta Bennett Dear Taylor : I have received your response of January 16 on behalf of your client to my letter to her of January 9 recarding Donald Bennett. My client wishes to advise ?yrs . Bennett through you that he has no intent or purpose of harrassing her whatso- ever. He requests access to his jointly held premises so that he may exercise all of his prerogatives of joint ownership under the law. So there be no misunderstanding my client will provide an additional time period until Friday, January 25th to receive a key which will give him access to the premises in which Mrs . Bennett has changed the locks . If access is not provided by that time, my client informs you and your client that he will consider it an offer to partition and he will seek to enforce his legal rights upon such an offer in the Court of Common Pleas of Cumberland County. Very truly yours , ARNOLD, SLIKE & BAYLEY Edgar B. Bayley FBB/kk 8 I 1 i ' 9 j t t `1 �Z S c.l 4�. z e r Cb p 511 a Pi F o a SHERIFF'S RETURN COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND In the Court of Common Pleas of Donald P. Bennett Cumberland County,Pennsylvania No. 3 Equity 1980 Complaint in Equity VS. Loretta Bennett Stephen Perry )GfigWor Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law says, that he served the within Complaint in Equity upon Loretta Bennett ,the defendant, at 7: 35 o'clock P M. X E.S .T. on the 11th day of February , 19 80, at R.D. ## 2 17 Husick Drive, Boiling Springs , Cumberland County, (street number) (cit or town) Pennsylvania, by handing to Loretta Yennett a true and attested copy of the Complaint in Equity and at the same time directing her attention to the contents thereof and the "Notice to Plead" endorsed thereon. Sheriff's Costs: So answers: Docketing 10.75 Service 4.08 ..M.. ..... , $ 14.83 pd. by Atty. 2-14-80 ROBERT B. FAI LOR, Sheriff Sworn and subscribed before me BY this mIV ay of Deputy S eriff 19 /y . L!z� zz'• A44,4.1-�, 411/ Prothonotary DONALD P. BENNETT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA VS , CIVIL DIVISION - EQUITY LORETTA BENNETT NO. 3 TQUITY, 1939 IN EQUITY ANS?aFR 1 . It is admitted that the Plaintiff is an adult individual , but it is denied that he resides at Box 133 , Boiling Springs , Pennsylvania. To the contrary it is averred that the Plaintiff resides with one Nancy Tate in Hickorytown Estates , which is believed to be located in Monroe Township, Cumberland County, Pennsylvania. 2 . Admitted, though proper spelling is Horick Drive. 3 . Admitted. 4 . It is denied that Defendant has denied access of the Plaintiff to the premises , and it is also denied that all the locks on the premises have changed. To the contrary, Plaintiff possesses the only keys to three of the five doors which enter the premises . 5 . Admitted. 6 . It is admitted that Defendant has refused to deliver keys to the locks on the two doors which have been changed, but it is denied that Plaintiff has denied access . 7 . This is a legal conclusion requiring no response. The factual claim that the Defendant has appropriated the jointly owned property to her sole and separate use, to the exclusion of the Plaintiff 's (stated by complaint to be "Defendant's" , such statement believed to be inadvertent error) rights of joint use is denied. NEW MATTER 8 . The Plaintiff voluntarily left the subject premises in March, 1977 , and the Plaintiff soon thereafter established his residence with Nancy Tate in Hickorytown Estates , Cumberland County, Pennsylvania with whom Plaintiff has maintained an illicit adultrous relationship. 9 . Since March , 1977 the Plaintiff has reentered the subject premises on many occasions without the knowledge or expressed consent of the Defendant. 10 . In January, 1979 , the Defendant had the locks changed on the front and rear_ doors of the premises and the locks to the patio door and basement garage doors were left unchanged. This action was taken for the protection and security of Defendant and the Defendant's two teenage daughters who reside with Defendant in the subject premises , and Defendant's intention not to exclude Plaintiff was expressed in correspondence from Defendant's attorney (Henry Coyne, Esquire) to Plaintiff 's attorney (Sylvia H. Rambo, Esquire) dated February 16 , 1979 , a copy of which is attached as Defendant 's Exhibit A. 11. Aside from the changing of the two locks as stated above, Defendant has taken no action that would effectively frustrate -2- the Plaintiff ' s use and enjoyment of his interest in the subject premises . 12 . Plaintiff has voluntarily chosen to forego his enjoy- ment and use of his interest in the subject premises . 13 . Defendant has not wrongfully excluded Plaintiff from exercising his rights in the subject premises . WHEREFORE, Defendant prays : That Plaintiff 's complaint in partition be dismissed, and that all remedies .requested therein be denied. Respectfully Submitted, i `Tay or. P. Andrews , Esquire At rney for Defendant -3- COMMONWEALTH OF PENNSYLVANIA ss COTTNTY OF CUMBERLAND LORETTA BENNETT, being duly sworn according to law deposes and says that the facts set forth in the foregoing Answer are true and correct to the best of her information, knowledge and belief. Loretta Bennett Sworn to and subscribed before me this / � day of �(__G� �'L(:i 1 19 90 . SNAWN S. Mi1% Notary P490 Carlisle, Cumberland Co., Pa. My Commission Expires August2l, 1091 • t • February 16, 1979 Sylvia H. Rambo Attorney at Law .P. 0. Box 261 ;Carlisle, PA :17013 Re: Bennett v. Bennett Domestic Relations 'Dear Ms. Rambo: I acknowledge receipt of your memorandum, dated February 9, 1979. It is true that Iiirs. Bennett changed the locks on the residence but such was not for the purpose of denying access. to Mr. Bennett. The purpose in changing the locks was to gain further security for herself and her two children as D I"Irs. Bennett has reason to be concerned for the safety of herself and her two children. Therefore, I respectfully suggest that you advise Mr. Bennett that lie has not been denied access and that he certainly can obtain any personal ' belongings which he way have in the Bennett residence by merely telephoning mrs. Bennett and snaking such a recyuest. , ' If it is the position of Mr. Bennett that he is not going to consider any of his responsibilities to pay the school real estate taxes, then I suppose we will have to petition the Non Support office to have a Learing on the matter. I certainly believe that tine proposal which I gave to you in my recent memorandum, is fair, when the respective income of Mr. and Mrs. Bennett are considered with reference to the amount of the real estate taxes owing. Kindly advise me if such is acceptable or if it is rejected. Ve truly rs all 6NNRYy F OYNB HFC/hrg _ / cc: Mrs. Bennetts ajT nbsd ' smOaPUV •d JOl AL-1, c y 'fIOA ZSNIVDV Qd2idZNd dg GVW SNHWOOD.r Z'IOFZddQ V W dOd2IdH SOIMES WO2id SKVG (0 Z) NI HJ IM 2idMSNV QdSOZONd HHs OZ QKdZd OZ QdIJIZON 2 gSHHdH d�IV Q0,K Zsd NNdg 'd GgVNOQ '2I W :01 I� I DONALD P. BENNETT, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL DIVISION - EQUITY : NO. 3 EQUITY 1980 LORETTA BENNETT, Defendant IN EQUITY ANSWER TO NEW MATTER 8. Denied as stated. Plaintiff left the property but was driven out by the Defendant as a result of a long failed marriage. 9 . Denied as stated. Prior to the Defendant changing the locks on the property, the Plaintiff did return on numerous occasions to his property as was his legal right. 10. Admitted in part and denied in part. It is admitted that the Defendant changed the locks on the front and rear doors of the premises and denied the Plaintiff access to same. It is specifically averred that this action was not taken for protection purposes but, rather, with the specific intent of denying the Plaintiff his legal access to the property. It is admitted that the Defendant ' s lawyer at the time wrote the letter which is attached as Exhibit "A" to the Plaintiff' s. lawyer at the time, but it is denied that this letter has any relevancy on the issues in this case except to confirm that the Defendant denied the Plaintiff access to the property as alleged and did not offer the Defendant new keys to the property. It is further ARNOLD,SLI%S&BAYLEY averred that the Plaintiff hadno key to the patio - door and ATTORNEYS AT LAW CA—H-L,P.... vwNu on that the patio door had been previously rendered inoperable during the period of time that the parties lived in the premises together so that no ingress and egress could be gained through same. It is further averred that the Defendant bolted the basement garage doors so that the Plaintiff could not gain access therein and that she further changed the lock on the access door from the basement garage into the premises so that the Plaintiff, even if he was able to get into the garage, was wrongfully excluded from entry into the residential areas of his joint property. 11 . Denied. In addition to changing the two locks as stated, the Defendant changed the lock on the access door from the garage to the interior of the premises, she bolted the garage door, and she has refused to provide the Plaintiff new keys and access to the property thereby offering to destroy the joint estate and revoked the entire estate which offer was accepted by the Plaintiff as pleaded in paragraph 7 of his Complaint. 12 . Denied for the reasons set forth in paragraphs 4 through 7 of the Plaintiff' s Complaint. 13 . Denied for the reasons set forth in paragraphs 4 through 7 of .the Plaintiff' s Complaint. Furthermore, the averment is a conclusion of law which does not require a specific denial. ARNOLD,SLIEE&BAYLEY ATCORNEY5 A7 LAW C—H—,Petrxsrivwru Ston -2- WHEREFORE, the Plaintiff prays that the relief requested in his Complaint be granted. R ectfully s bmitted, RNOLD, SLIKE & YLE By Edgar B. Bay ey Attorney for Plaintiff ARNOLD,SLIEE&BAYLEY ATTORNEYS AT LAW CA—H-L,Pesssvcvwtru >ot -3- COMMONWEALTH OF PENNSYLVANIA: SS COUNTY OF .CUMBERLAND DONALD P. BENNETT, being duly sworn according to law, deposes and says that the facts set forth in the foregoing Answer to New Matter are true and correct to the best of his knowledge, information and belief. a 4s't'c'� D nal P. Bennett Sworn and subscribed to before me this 1 � day of April , 1980 . t Thelma S. I4!sCauslm, Notary Pubfic My Commis:;icn Expires July I, 1930 Camp Hili, PA Cumberland County ARNOLD,SLIER&BAYLEY AIZCR IAT LAW CAwe NILL.P—SYLYANIA You R , Q-4 4J W Z H � N W a W H cif LH p �+ a d P-i Q w a W H i opo H 3 c�j H w cN ooh z w z � W Uv] H PQH a W x FO Q d N P-4 W A �" a d Q H CA M H Z -4 W H O O O U U Q PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY/OF CUMBERLAND COUNTY Please list the following case: (Check one) ( ) for JURY trial at the next term of civil court. ( X ) for trial without a jury. ---------------------------------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) (check one) ( ) Assumpsit DONALD P. BENNETT ( ) Trespass ( ) Trespass (Motor Vehicle) ( X ) Equity (other) (Plaintiff) vs. LORETTA BENNETT C-- C) -,� r W-0 m T>C>0 (Defendant) 00 P-CIO o; vs. Z _ lip, —4 J 4 1� C No. 3 fir$ EQUITY 19_80 Indicate the attorney who will try case for the party who files this praecipe: _ Edgar B. Bayley, Esquire Indicate trial counsel for other parties if known: Taylor P. Andrews Esquire This case is ready for trial. Signed: Edgar B. Bayley Print Name: Edgar B. Bayley Date: April 16, 1980 Attorney for: Plaintiff DONALD P. BENNETT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. LORETTA BENNETT NO. 3 EQUITY 1980 MARY A. VOGELSONG; MINNIE E. IN THE COURT OF COMMON PLEAS OF SHEAFFER, SYLVAN L. VOGELSONG, CUMBERLAND COUNTY, PENNSYLVANIA SR. , TOLBERT R. VOGELSONG, JR. ; RICHARD N. VOGELSONG, JR. , FAYE A. REHM, AND LESTER L. VOGELSONG V. WALTER J. VOGELSONG NO. 69 EQUITY 1979 CREDITORS COMMITTEE OF METRO- IN THE COURT OF COMMON PLEAS OF POLITAN METALS, INC. CUMBERLAND COUNTY, PENNSYLVANIA V. FREIGHT ROAD REALTY COMPANY, METROPOLITAN METALS, INC. and MARTIN S . ROBERTS NO. 77 EQUITY 1979 ROBERT J. PULASKI IN THE COUNT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. , DEBRA K. KLINGER KYZER, , Executrix of the Estate of Hazel A. Pulaski NO. 6 EQUITY 1978 NO. 3 EQUITY 1980 NO. 69 EQUITY 1979 NO. 77 EQUITY 1979 NO. 6 EQUITY 1978 ORDER OF COURT AND NOW, May 28 , 1980 , the above cases appearing on the Equity Trial List for June 9 , 1980 , are fixed for pretrial on Monday, June 9 , 1980, as follows : Case No. 1 at 9 : 30 a.m. , Case No. 2 at 10 : 00 a.m. , Case No. 3 at 10 : 30 a.m. Case No. 4 has been fixed for 3 : 30 p.m. on June 12 , 1980 . The date of trial for the above cases will be fixed on the date of the pretrial conference. If no appearance is entered for the de- fendant, counsel for the plaintiff shall notify the defendant of the pretrial date. By the Court, G rg E. Hoff J. Edgar B. Bayley, Esquire Taylor P. Andrews , Esquire C. Roy Weidner, Jr. , Esquire Roger M. Morgenthal, Esquire Richard A. Cleckner, Esquire Eric J. Wiener, Esquire John B. Mancke, Esquire Richard C. Snelbaker, Esquire :ssg DONALD P. BENNETT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 3 EQUITY 1980 LORETTA BENNETT IN RE: PRETRIAL CONFERENCE At a pretrial conference held June 9, 1980, before the Honorable George E. Hoffer, Judge, present for the plaintiff was Edgar B. Bayley, Esquire, and for the defendant, Taylor P. Andrews, Esquire. This is a non-jury trial estimated to take one-half day to try. This is an action in partition in which the plaintiff claims he has been wrongfully excluded from the entireties property. Plaintiff: is the husband of the defendant. There are currently no divorce proceedings started. The issuer for trial will solely be ; is the property subject to partition. The sub-issues are, one, has access been denied and, two, if access has been denied, to the extent it' s been denied, has it been wrongful such as to entitle the plaintiff to relief. Trial will be set for Monday, July 7, 1980, t 9 :30 a.m. F.-AM Geo e Hof er, J. Edgar B. Bayley, Esquire For the Plaintiff Taylor P. Andrews, Esquire For the Defendant :cfd TAYLOR P. ANDREWS, Esq. 26 W. High Street Carlisle, Pa. 17013 (717) 243-0123 DONALD P. BENNETT IN THE COTTRT OF COMMON PLEAS OF CTJMBERLAND COTJNTY, PENNSYLVANIA VS . NO. 3 EQUITY 1980 LORETTA BENNETT PRE-TRIAL MEMORANDUM I . SYNOPSIS OF CASE This case involves a Partition action brought by a husband against his wife alleging that the wife has wrongfully excluded the husband from the jointly owned real estate by changing the locks of the premises . In this case the parties were married in 1960 in Cumberland, Maryland and they moved to the house in white Rock Acres which is the subject of this controversy approximately eight ( 8) years ago. In the Spring of 1977 Mr. Bennett departed from the marital household and took up residence with another woman named Nancy Tate in Hickorytown Estates . From the Sprina of 1977 until January 1979 Mr. Bennett made intermittent unannounced entries into the home. He did not, however, return to reside at the home at anytime. In January 1979 Mrs . Bennett changed some, but not all of the locks on the home. This was done after she had become alarmed upon hearing from her mother that an unidentified individual had been present in the house. By a letter dated February lti , 1979 from her counsel Mrs . Bennett advised Mr. Bennett that the locks were changed to gain further security for herself and her two children, Tammy age 16 , and Jeffrey age 12 . DONALD P. BENNETT IN THE COURT OF COMMON PLEAS OF CrJMBERLAND COrJNTY, PENNSYLVANIA VS . NO. 3 EQUITY 1980 LORETTA BENNETT PRE-TRIAL MEMORANDUM I. SYNOPSIS OF CASE This case involves a Partition action brought by a husband against his wife alleging that the wife has wrongfully excluded the husband from the jointly owned real estate by chanaing the locks of the premises . In this case the parties were married in 1960 in Cumberland, Maryland and they moved to the house in White Rock Acres which is the subject of this controversy approximately eight (8) years ago. In the Spring of 1977 Mr. Bennett departed from the marital household and took up residence with another woman named Nancy Tate in Hickorytown Estates . From the Spring of 1977 until January 1979 Mr. Bennett made intermittent unannounced entries into the home. He did not, however, return to reside at the home at anytime. In January 1979 Mrs . Bennett changed some, but not all of the locks on the home. This was done after she had become alarmed upon hearing from her mother that an unidentified individual had been present in the house. By a letter dated February 16 , 1979 from her counsel Mrs . Bennett advised Mr. Bennett that the locks were changed to gain further security for herself and her two children, Tammy age 16 , and Jeffrey age 12 . From January 1979 until January 1980 Mr. Bennett was never turned away from his home or denied access . In January 1980 Mr. Bennett through his counsel requested a key to the locks which had been changed at his home. His counsel indicated that a Partition action would be started if no key was delivered. Mrs . Bennett responded through her counsel that she did not desire to give free access of her house to Mr. Bennett. At the same time, Mrs . Bennett inquired by her counsel as to Mr. Bennett's reason for the desired access into the property. By a letter dated January 21 , 1980 Mr. Bennett ' s counsel indicated that Mr. Bennett desired to have access to the house "so that he may exercise all of his prerogatives of joint ownership under the law" . From the time of his departure in 1977 through the present time Mr. Bennett has resided with another woman, namely Nancy Tate. II. DEFENDANT'S POSITION : It is the position of the Defendant in this suit that Mrs . Bennett has not excluded Mr. Bennett from the home in White Rock Acres . While some of the locks have been changed at the home, Mrs . Bennett has never refused access into the property to Mr. Bennett. Additionally, Mrs . Bennett is not aware of any occasions when Mr. Bennett attempted to gain entry into the home and was unsuccessful . To the extent that the changed locks by Mrs . Bennett and her stated intention to deny Mr. Bennett a new key are regarded as having sufficiently frustrated Mr. Bennett's enjoyment of the property to constitute an exclusion ; such exclusion was not wrongful . Clearly, -2- the motive of Mrs . Bennett was to prevent access to the home by Mr. Bennett and possibly Mr. Bennett 's girlfriend while Mrs . Bennett was not present, and to require Mr. Bennett to seek Mrs . Bennett ' s permission before entry. Under the circumstances which exist in this case the strinaent requirements for the extraordinary partition of entireties ' property are not met. This case is very similar_ to the following cases in which partition was denied: Keiser vs . Keiser, :° Cumberland Law Journal, 81 (1980) Magr_iney vs . Magriney, 61 D&C 2d Pg. 572 (Judge Dowling) (1972) Dempsey vs . Dempsey, qZ-York Legal Record 183 (1979) III . WITNESSES TO BE CALLED AT TRIAL : (1) Mrs . Loretta Bennett will testify as to the harrassment she received from her husband 's paramour before her husband ' s departure in 1977 . She will also testify as to the access which was granted to Mr. Bennett into the marital home from 1977 through the present time. She will also testify in detail as to the locks which have been changed at the premises and her intentions regarding the change of locks which was made in January 1979 . (2) Mrs. Bennett' s mother will testify to an incident when she was alone in the home and became aware of somebody else 's presence in the home. She was not able to see who was in the home but the presence of an unknown intruder was very upsettina to her. -3- JIF14 ISA (3) R=- - y , Mrs . Bennett's a.i�P, may be present to testify as to her presence in the Bennett home. �grefft- "•-etis; 1-479 m e , g. Mrs . Wit_, Mrs . Bennett and Mrs . Bennett's mother will all testify as to the extent to which the home was occupied and the absence of any occasions when Mr. Bennett was denied access into the home. IV. POTENTIAL EVIDENTIARY Qi.JFSTION : One possible evidentiary question which may arise during the course of the trial is the admissibility of Mr. Bennett's co- habitation with Nancy Tate from 1977 until the present time. Also, there may be a question as to the admissibility of various letters in Mrs . Bennett 's possession from Nancy Tate to Mr. Bennett which contain threats upon Mrs . Bennett. The Defendant contends that such evidence is admissible to determine Mrs . Bennett's motive in changing the locks on the real estate. This identical question was decided by Judae Sheely recently in the case of Keiser vs . Keiser, Super. In that case Judge Sheely found that the motive of the wife was to prevent access to the home by the husband while the wife was not present, and to require the husband to seek the wife 's permission before making entry. In the light of the extra marital relationship of the husband such a motive was not wrongful. The previous two cases cited support this view. -4- V. RELIEF REQTTESTED: The Defendant will request that this Court dismiss the Partition action. Respectfully Submitted, <W4 7:i:) Tay r P. _Andrews , Esquire Att rney for Defendant -5- DONALD P. BENNETT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 3 EQUITY 1980 LORETTA BENNETT IN RE: CONTINUANCE ORDER OF COURT AND NOW, July 7 , 1980, at the request of Edgar B. Bayley, Esquire, attorney for the Plaintiff, and Taylor P. Andrews, Esquire, attorney for the Defendant, the trial of the above case is continued generally. By the Court, Geo e o f r, J. Edgar B. Bayley, Esquire For the Plaintiff Taylor P. Andrews, Esquire For the Defendant D Q rn T r t� t _o r r ` t i 4 � f r ° r 3 r 4 r'li y �} rk t ^1 _