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HomeMy WebLinkAbout02-1112HEATHER A. SMITH, Plaintiff DOUGLAS G. SMITH, Defendant · IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA · CIVIL ACTION - LAW · IN DIVORCE AND CUSTODY NOTICE TO DEFEND AND CLAIM RIGHTS You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take prompt action. You are warned that if you fail to do so, the case may proceed without you and a decree of divorce or annulment may be entered against you by the court. A judgment may also be entered against you for any other claim or relief requested in these papers by the plaintiff. You may lose money or property or other rights important to you, including custody or visitation of your children. When the ground for the divorce is indignities or irretrievable breakdown of the marriage, you may request marriage counseling. A list of marriage counselors is available in the Office of the Prothonotary at the Cumberland County Court House, 1 Courthouse Square, Carlisle, PA 17013. IF YOU DO NOT FILE A CLAIM FOR ALIMONY, DIVISION OF PROPERTY, LAWYER'S FEES OR EXPENSES BEFORE A DIVORCE OR ANNULMENT IS GRANTED, YOU MAY LOSE THE RIGHT TO CLAIM ANY OF THEM. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. The Cumberland County Lawyer Referral Service Cumberland County Bar Association 2 Liberty Avenue, Carlisle, PA 17013 (717) 249-3166 or (800) 990-9108 tt0rney for Plaint~ HEATHER A. SMITH, Plaintiff DOUGLAS G. SMITH, Defendant · IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL ACTION - LAW IN DIVORCE AND CUSTODY ORDER OFCOURT AND NOW, upon consideration of the attached Complaint, it is hereby directed that the parties and their respective counsel appear before Custody Conference Officer, on the day of at for a Pre-Hearing Custody Conference. At such Conference, an effort will be made to resolve the issues in dispute; or if this cannot be accomplished, to define and narrow the issues to be heard by the Court, and to enter into a Temporary Order. All children age five or older may, at the request of either attorney or party, be present at the Conference. Failure to appear at the Conference may provide grounds for the entry of a temporary or permanent Order. FOR THE COURT, Date of Order: By: Conference Officer 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. The Cumberland County Lawyer Referral Service Cumberland County Bar Association 2 Liberty Avenue, Carlisle, PA 17013 (717) 249-3166 or (800) 990-9108 HEATHER A. SMITH, Plaintiff DOUGLAS G. SMITH, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA · IN DIVORCE AND CUSTODY COMPLAINT IN DIVORCE AND CUSTODY COUNT I - DIVORCE PURSUANT TO SECTION 3301(c) OF THE DIVORCE CODF 1. Plaintiff is Heather Smith, an adult individual who is sui juris and resides at 22 Crescent Drive, Apartment 1, New Cumberland, Cumberland County, Pennsylvania. 2. Defendant is Douglas Smith, an adult individual who is sui juris and resides at 22 Crescent Drive, Apartment 1, New Cumberland, Cumberland County, Pennsylvania. The present whereabouts of the Defendant, to the knowledge of the Plaintiff, is the same. 3. Both Plaintiff and Defendant have been bona fide residents in the Commonwealth of Pennsylvania for at least six (6) months immediately previous to the filing of this Complaint. 4. The Plaintiff and Defendant were married on November 26, 1994 in New Cumberland, Pennsylvania. 5. There have been no prior actions of divorce or for annulment between the parties. 6. Plaintiff has been advised of the availability of counseling and the right to request that the Court require the parties to participate in counseling. 7. The Defendant is not a member of the Armed Services of the United States or any of its Allies. 8. The Plaintiff avers that the ground on which the action is based is that the marriage is irretrievably broken. WHEREFORE, Plaintiff requests the Court to enter a Decree: A. Dissolving the mardage between Plaintiff and Defendant; B. For such further relief as the Court may determine equitable and just. 10. Name Taylor Smith Ashton Smith COUNT II - CUSTODY Paragraphs 1-8 are incorporated herein by reference. Plaintiff seeks custody of the following children: Present Residence 22 Crescent Drive New Cumberland, PA, 22 Crescent Drive New Cumberland, pA, Date of Birth March 6, 1996 December 23, 1998 The children were born in wedlock. The children are presently in the custody of Heather Smith, who resides at 22 Crescent Drive, New Cumberland, Cumberland County, Pennsylvania. 11. During the past five years, following persons and at the following addresses: .All Persons Heather Smith Douglas Smith Heather Smith Douglas Smith Carla Jumik Frank Jurcik Stephanie Jumik Francis Jurcik All Addresses 22 Crescent Drive New Cumberland, PA 22 Crescent Drive New Cumberland, PA the children have resided with the Dates 4/01 - Present 10100.4101 Heather Smith Douglas Smith 12. 413 Hummel Avenue Lemoyne, PA 6/98 - 10/00 The mother of the children is Heather Smith, Who resides at 22 Crescent Drive, New Cumberland, Cumberland County, Pennsylvania. She is married to Defendant. 13. The father of the children is Douglas Smith, who resides at 22 Crescent Drive, New Cumberland, Cumberland County, Pennsylvania. He is married to the Plaintiff. 14. The relationship of Plaintiff to the children is that of natural mother. The Plaintiff currently resides with the following persons: Name _Relationship Douglas Smith Husband Taylor Smith Daughter Ashton Smith Daughter 15. The relationship of Defendant to the children is that of natural father. The Defendant currently resides with the following persons: Name Heather Smith Taylor Smith Ashton Smith Wife Daughter Daughter 16. Plaintiff has not participated as a party or witness, or in another capacity, in other litigation concerning the custody of the children in this or another court. Plaintiff has no information of a custody proceeding concerning the children pending in a court of this Commonwealth. Plaintiff does not know of a person not a party to the proceedings who has physical custody of the children or claims to have custody or visitation rights with respect to the children. 17. The best interest and permanent welfare of the children will be served by granting the relief requested because: a). Plaintiff has been the primary caregiver of the children since their births; b). Plaintiff is better able to care for the children physically and mentally; c). Plaintiff is better able to care for the emotional needs of the children; d). Plaintiff offers a more stable physical environment for the children; and e). Plaintiff and the children have formed a stronger bond with each other. 18. Each parent whose parental rights to the children have not been terminated and the person who has physical custody of the children have been named as parties to this action. children. WHEREFORE, Plaintiff requests the court to grant her custody of the Respectfully submitted, TUCKER ARENSBERG & SWARTZ By: ~2,~Z~/A../ ~ / iS.-~ .sa~ 0M~2S3ei{;I h m a ~) E squire 111 North Front Street P.O. Box 889 Harrisburg, PA 17108-0889 (717) 234-4121 ATTORNEYS FOR PLAINTIFF VERIFICATION I, the undersigned, Heather Smith, acknowledge that the facts stated in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn falsification to authorities. Cumberland ~ RECORD OF ~ I D'VAtO~RCE OR ANNULMENTI ~TATE ~ ""'~ ~ . HU-~3AND ~G. Smith 22 Crescent Dr. -- .... ~.-~.~ -'~~_~ ~ m~ II 12 71 ~. ~ ....... , ~ ~. 1, New Cu~erlan~ ~' 1 J -'-~ _ ~ ~~ emm ~ennsylvania ~ ~ ~ ~ ~C~puter Tech. ~ao ~~ ~ ~ 19 74 22 Crescent Dr , Apt. 1, New Cu ~z ~ -~~, ~ew Cu~erland, Cu~er~ _ ~ ~ ~ omer Service ~ ~~~~ ,,.:~ ~ ~ , HEATHER A. SMITH, Plaintiff DOUGLAS G. SMITH, Defendant : IN THE COURT OF COMMON PLEAS · CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-1112 Civil Term CIVIL ACTION - LAW : IN DIVORCE AND CUSTODY PRAECIPE TO THE PROTHONOTARY: Kindly withdraw my appearance for Plaintiff, Heather Smith, in the above-captioned action. TUCKER ARENSBERG & SWARTZ 111 North Front Street P.O. Box 889 Harrisburg, PA 17108 Please enter my appearance on behalf of the Plaintiff, Elizabeth Hoffman, in the above-captioned matter. Date: ¢~::~//~<:~_....~ By: Harrisburg, PA 17'101 HEATHER A. SMITH Plaintiff VS DOUGLAS G. SMITH, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-1112 CIVIL TERM CIVIL ACTION-LAW IN DIVORCE AND CUSTODY PRAECIPE Would you kindly withdraw Count II (Custody) in the above captioned matter. Eliz¢:th A. Hoffman ff~' HEATHER A. SMITH, Plaintiff DOUGLAS G. SMITH, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-1112 CIVIL TERM CIVIL ACTION - LAW IN DIVORCE AFFIDAVIT I, Douglas G. Smith, do hereby acknowledge that I received via the mail the Complaint in Divorce and Custody in the above-captioned case on or about March 8, 2002. I verify that the information provided in this Affidavit is true and correct to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. §4904, relating to unsworn falsification to authorities. Date: I ~/Ib~[05 Doug~ G. Smith Elizabeth A. Hoffman, Esquire 106 Walnut Street Harrisburg, PA 17011 (717) 236-2956 HEATHER A. SMITH, Plaintiff DOUGLAS G. SMITH, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-1112 CIVIL TERM CIVIL ACTION - LAW IN DIVORCE AFFIDAVIT OF CONSENT 1. A complaint in divorce under Section 3301(c) of the Divorce Code was filed on March 5, 2002 2. The marriage of plaintiff and defendant is irretrievably broken, and ninety days have elapsed from the date of filing the complaint. 3. I consent to the entry of a final decree of divorce after service of notice of intention to request entry of the decree. I verify that the statements made in this affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unswom falsification to authorities. Date: ooa Heather A. Smith Elizabeth A. Hoffman, Esquire 106 Walnut Street Harrisburg, PA 17011 (717) 236-2956 HEATHER A. SMITH, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 02-1112 CIVIL TERM DOUGLAS G. SMITH, Defendant CIVIL ACTION - LAW IN DIVORCE WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIVORCE DECREF UNDER §3301(c) OF THE DIVORCE CODF 1. I consent to the entry of a final decree of divorce without notice. 2. I understand that I may lose rights concerning alimony, division of property, lawyer's fees or expenses if I do not claim them before a divorce is granted. 3. I understand that I will not be divorced until a divorce decree is entered by the Court and that a copy of the decree will be sent to me immediately after it is filed with the prothonotary. I verify that the statements made in this affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. / H~ather A. Smith SS# / 70 Elizabeth A. Hoffman, Esquire 106 Walnut Street Harrisburg, PA 17011 (717) 236-2956 HEATHER A. SMITH, Plaintiff V. DOUGLAS G. SMITH, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-1112 CIVIL TERM CIVIL ACTION - LAW IN DIVORCE AFFIDAVIT OF CONSENT 1. A complaint in divorce under Section 3301(c) of the Divorce Code was filed on March 5, 2002 2. The marriage of plaintiff and defendant is irretrievably broken, and ninety days have elapsed from the date of filing the complaint. 3. I consent to the entry of a final decree of divorce after service of notice of intention to request entry of the decree. I verify that the statements made in this affidavit are true, and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. {}4904 relating to unsworn falsification to authorities. Date: Dou~/',~s G. Smith ss# Elizabeth A. Hoffman, Esquire 106 Walnut Street Harrisburg, PA 17011 (717) 236-2956 HEATHER A. SMITH, Plaintiff V. DOUGLAS (3. SMITH, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-1112 CIVIL TERM CIVIL ACTION - LAW IN DIVORCE WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIVORCE DECREF UNDER §3301(c) OF THE DIVORCE CODF 1. I consent to the entry of a final decree of divome without notice. 2. I understand that I may lose rights concerning alimony, division of property, lawyer's fees or expenses if I do not claim them before a divome is granted. 3. I understand that I will not be divorced until a divorce decree is entered by the Court and that a copy of the decree will be sent to me immediately after it is filed with the prothonotary. I verify that the statements made in this affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. {}4904 relating to unsworn falsification to authorities. Date: / /~/Douglas G. Smith H,EATHER A. SMITH Plaintiff DOUGLAS G. ,SMITH Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, I:~NNSYLVANIA :NO, 02-1112 CTVTL TERM : : CIVIL ACTION-DiVORCE TO THE PROTHONOTARY: PRAECIPE TO TRANSMIT RECORr) Transmit the record, together with the following information, to the Court for entry of a divorce decree. Code. 1. Ground for divorce: Irretrievable breakdown under Section 3301 (c) of the Divorce 2. Date and manner of service of the Complaint: 3. Date of Execution of Affidavit of Consent required by Section 3301(c) of the Divorce Code by Plaintiff- 11/17/03 ; by Defendant-. 11/16/03 4. Related claims pending: NONE 5. (Complete either (a) or (b) (a) Date and manner of service of the Notice of Intention to File Praecipe to Transmit record, a copy of which is attached: (b) Date Plaintiff's Waiver of Notice in Section 3301(c) was filed in the 12/15/03 Prothonotary: Prothonotary: blarch 8, 2002-Personal Service Respectfully submitted: Date of Defendant's Waiver of Notice in S.ct~on'a ' 3301(c) was filed in the 12/15/03 IN THE COURT OF COMMON HEATHER A. SMITH Plaintiff VERSUS DOUGLAS G. SMITH Defendant Of CUMBERLAND COUNTY STATE OF ~%, PENNA. NO. PLEAS 02-1112 CIVIL TERM DECREE IN DIVORCE AND NOW, ~J~' /~/' , ~., IT iS ORDERED AND DeCReED THAT HEATHER A. SMITH DOUGLAS G. SMITH AND ,PLAINTIFF, ,DEFENDANT, ARE DIVORCED FROM THE BONDS OF MATRIMONY. THE COURT RETAINS JurIsDICTION OF THE FOLLOWING CLAIMS WHICH HAVE BEEN RAISED OF RECORD IN THIS ACTION FOR WHICH A FINAL ORDER HAS NOT Yet BEEN ENTERED; NONE PROTHONOTARY NOTICE TO PLEAD TO: Plaintiffs You are hereby notified to plead to the enclosed New Matter within twenty (20) days from service hereof or a default judgment may be entered against you. DUANE MORRIS LLP By: Peter Jason Identification No. 55473 By: Michael Zullo Identification No. 91827 One Liberty Place Philadelphia, PA 19103-7396 (215) 979-1174/1178 SHARON WOLF Plaintiff, AMERICAN GENERAL ASSURANCE COMPANY Respondent. Attorneys for Defendant Peter Jason, Esquire Michael Zullo, Esquire Attorneys tbr Defendant American General Assurance Company : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY NO. 04-1112 CIVIL TERM : ANSWER TO AMENDED COMPLAINT AND NEW MATTER American General Assurance Company ("AGAC"), by and through its attorneys, Duane Morris LLP, hereby answers plaintiff's amended complaint as follows: 1. Admitted. 2. Admitted in part. Denied in part. It is adrnitted only that AGAC is a corporation with a place of business located at 1000 Woodfield Road, Schaumburg, Illinois 60173-4793, and that AGAC does business in the Commonwealth of Pennsylvania. It is denied that AGAC is a "Member" of American International Group, Inc. 3. Admitted in part. Denied in part. It is admitted only that on or about July 18, 2002, plaintiff and Richard Wolf signed an application for credit life insurance with AGAC and that a certificate of insurance no. 0107063992, with an effective date of July 18, 2002, was issued to them. It is denied that copies of the application or certificate of insurance were attached to the copy of the amended complaint that was sent to AGAC. 4. Denied as stated. It is admitted only that as of August 14, 2002, the written certificate of insurance number 0107063992 had been issued lo plaintiff and Richard Wolf, to which document AGAC refers for a statement of its terms and conditions. 5. At[er reasonable investigation, AGAC is without knowledge or information sufficient to form a belief as to the troth of the averments of this paragraph; they are, therefore deemed to be denied. 6. After reasonable investigation, AGAC is without knowledge or information sufficient to form a belief as to the troth of the averments of this paragraph; they are, therefore deemed to be denied. 7. Al[er reasonable investigation, AGAC is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph; they are, therefore deemed to be denied, except that AGAC admits that Richard Wolf died on or about July 23, 2003. PH2\820971.I 2 8. Admitted in part and denied in part. It is admitted that a claim was submitted to AGAC for death benefits and that AGAC denied the claim, based upon its good faith belief that there had been a material representation in the application for coverage, concerning Richard Wolf's health history. It is denied that a copy of AGAC's denial letter was attached to the copy of the amended complaint that was sent to AGAC. 9. Denied. AGAC's denial of the claim for benefits was based upon its good faith belief that plaintiff was not entitled to benefits. 10. The averments of this paragraph constitute conclusions of law to which no responsive pleading is required; they are, therefore, deemed to be denied. To the extent that this paragraph contains factual allegations, such allegations are denied and deemed at issue pursuant to Pa. R. Civ. P. 1029(e). 11. Denied. AGAC promptly and diligently investigated plaintiff's claim. 12. Denied. At all times relevant hereto, AGAC acted in good faith and administered plaintiff's claim in good faith. 13. Denied. AGAC explained the basis of its denial of plaintiff's claim, specifically its understanding based upon letters from treating physicians, that the application contained material representations concerning Richard Wolf's health history. 14. The averments of this paragraph constitute conclusions of law to which no responsive pleading is required; they are, therefore, deemed to be denied. To the extent that this paragraph contains factual allegations, such allegations are denied and deemed at issue pursuant to Pa. R. Civ. P. 1029(e). 15. The averments of this paragraph constitute conclusions of law to which no responsive pleading is required; they are, therefore, deemed to be denied. To the extent that this paragraph contains factual allegations, such allegations are denied and deemed at issue pursuant to Pa. R. Civ. P. 1029(e). 16. The averments of this paragraph constitute conclusions of law to which no responsive pleading is required; they are, therefore, deemed to be denied. To the extent that this paragraph contains factual allegations, such allegations are denied and deemed at issue pursuant to Pa. R. Civ. P. 1029(e). 17. The averments of this paragraph constitute conclusions of law to which no responsive pleading is required; they are, therefore, deemed to be denied. To the extent that this paragraph contains factual allegations, such allegations are denied and deemed at issue pursuant to Pa. R. Civ. P. 1029(e). 18. Denied. 19. The averments of this paragraph constitute conclusions of law to which no responsive pleading is required; they are, therefore, deemed to be denied. To the extent that this paragraph contains factual allegations, such allegations are denied and deemed at issue pursuant to Pa. R. Civ. P. 1029(e). NEW MATTER 1. Plaintiff's complaint fails to state a claim upon which relief may be granted. 2. Plaintiff's complaint is or may be barred by the applicable statute of limitations. 3. Plaintiff's amended complaint is or may be bmrred by the doctrine of laches. PH2\820971.1 4 WHEREFORE, AGAC demands judgment in its favor and against plaintiff, dismissing the amended complaint with prejudice and awarding to defendant its costs and expenses of this action, including reasonable attorney's fees as allowed by Imv, and such other and further relief as the Court may deem just and proper. Respectfully submitted, DUANE MORRIS LLP Peter Jason I.D. No. 55473 Michael Zullo I.D. No. 91827 One Liberty Place Philadelphia, PA 19103-7396 (215) 979-1174 Attorneys for Defendant PH2~820971.1 5 VERIFICATION I, Jennifer Macom, do hereby verify that I am the Manager of the Credit Claims Department for American General Assurance Company and that the facts set forth in the foregoing Answer and New Matter are true and correct to the best of my knowledge, information and belief. I make this Verification subject to the penalties of 18 Pa. C.S. §4904 relating to unswom falsification to authorities. J(.~dnnifer Maim PH2\821404. I CERTIFICATE OF SERVICE I, Michael S. Zullo, Esq., hereby certify that a true and correct copy of the above Answer and New Matter to Plaintiff's Complaint was served this 13~' Day of October, 2004, via first class mail upon the following: William P. Douglas, Esquire 27 W. High Street PO Box 261 Carlisle, PA 17013-02611 Michael S. Zullo, Esq.