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HomeMy WebLinkAbout02-2316DOUGLAS P. REED, Plaintiff VS. TINA M. REED, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-2316 CIVIL TERM CONFUSION OF JUDGMENT PETITION TO OPEN JUDGEMENT And now this 22nd day of May 2002, comes Defendant Tina Reed and seeks to open the judgement against her and, in support thereof, avers as follows: 1. On May 10, 2002, Plaintiff filed a Complaint for Confession of Judgement against Defendant alleging that she had failed to pay a debt to Member's First Credit Union, which was required under a Marital Settlement Agreement between the parties. 2. Also, on May 10, 2002, Plaintiff filed a Confession of Judgement against Defendant for $1286.95. A copy of said Confession of Judgement is attached as Exhibit "A". 3. Defendant received Notice of the filing of the Confession of Judgement on May 13, 2002, when a copy of said judgement was handed to her Attorney. 4. Defendant has acted timely by filing this Petition nine (9) days after receiving Notice of said Judgement. 5. Said Judgement should be opened for the following reasons: A. i) The issue of the payment of the Member's First loan payment has been previously decided in a civil action between the parties in Lebanon County, Pennsylvania docketed at No. 1996-20137 and, therefore, is res judicata. ii) In said Lebanon County Action, Plaintiff filed a Petition for Contempt in attempting to prove that Defendant had breached the parties' Marital Settlement Agreement by not making the $1106.48 payment to Member's First Credit Union. A copy of said Petition for Contempt is attached as Exhibit "B". iii) On May 8, 2001, Judge Bradford H. Charles in the Lebanon County Action ruled that since the Plaintiff did not appear at the scheduled hearing, the Petition for Contempt, related to the Member's First Loan was dismissed. See a copy of the Judge's Order attached as Exhibit "C". iv) For these reasons, the issue of the Member's First loan payment is "res judicata" for that same issue was raised in the Plaintiff's Complaint for Confession of Judgement and, therefore, Defendant has a defense. B. i) The matter of payment of the Member's First loan payment was raised in the Marital Settlement Agreement between the parties which is attached as Exhibit "D". ii) Said Marital Settlement Agreement was incorporated into the parties' Divorce Decree in Lebanon County at No. 4984 S 1995. A copy of said Decree is attached as Exhibit iii) Consequently the proper forum for raising the issue of the Member's First payment is Lebanon County and not Cumberland County where Plaintiff filed his Complaint for Confession of Judgement. DOUGLAS P. REED, Plaintiff TINA M. REED, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : NO. CONFESSION OF JUDGMENT ' ..CONlq~SSION 0F-JUDGM~,NT . Pursuant to the authority contained in the warrant of attorney, the original and a copy of which is attached to the complaint filed in this action, I appear for the defendant and confess judgment in favor of the plaintiff and against defendant as follows: Principal sum $1106.48 Other authorized items: Interest A~omey fees $165,97 TOTAL EXHIBIT "A" DOUGLAS P. REED, Plaintiff TINA M. REED, : IN THE COURT OF COMMON PLEAS : LEBANON COUNTY, PENNSYLVANIA :Civil Action - Law Defendant :Divorce RULE ANDNOW, towit, this ~r.~ dayof ('~c~ ~ ,1999, upon consideration of the foregoing Plaintiff's Petition for Contempt, a Rule is granted upon Defendant, Tina M. Reed, to show cause why she should not be found in Contempt and to show cause why she should not be ordered to reimburse Plaintiffthe sum orS1106.48, plus interest and order Defendant to pay attorney's fees. ~ c~C:t~45, c~O\ec- ~/(c e~. Rule returnable c~ at ..... BY THE COURT: EXHIBIT "B" /s/ ROBERT J. EBY. P.d. Judge ;:UiiSUA& t- TO RULE 256 You a:'e he~'eby notiflied that th;s cr'd~r has been eni-ered in this case. DOUGLAS P. REED, Plaintiff TINA M. REED, Defendant : IN THE COURT OF COMMON PLEAS : LEBANON COUNTY, PENNSYLVANIA : NO: 4984-S-1995 :Civil Action - Law :Divorce AND NOW, to wit, this day of ,1999, upon consideration of the foregoing Plaintiff's Petition for Contempt, it is hereby ordered that a hearing shall be held on ,1999 at .m. at the Lebanon County Courthouse, Courtroom # BY THE COURT: Judge DOUGLAS P. REED, Plaintiff TINA M. REED, Defendant : IN THE COURT OF COMMON PLEAS : LEBANON COUNTY, PENNSYLVANIA : NO: 4984-S-1995 :Civil Action - Law :Divorce PETITION FOR CONTEMPT AND ENFORCEMENT r'-~ N ',4 AND NOW comes Plaintiff, Douglas P. Reed, by his attorney, Kathy M~ L~ r--~ m Shughart, Esquire, and files this Petition, based upon the following: c~:r:= c~ ~ ~m 1. Plaintiff, Douglas P. Reed, bom April 22, 1963, is an adult indi~3t~l~l la- ~ who currently resides at 2419 Derry Street, Harrisburg, Dauphin County, Pennsyh~l~xia~ ~ 2. Defendant, Tina M. Reed, bom November 26, 1971, is an adult individual who currently resides at 1733 North Union Street, gE, Dauphin County, Middletown, Pennsylvania. 3. On November 27, 1997, the parties executed a Marital Settlement Agreement. 4. Said Marital Settlement Agreement was incorporated into the Divorce Decree entered on December 16, 1997, incorporated by reference herein and referred to as Exhibit "A". 5. Pexagraph 10 of the Marital Settlement Agreement provides that Defendant shall be solely responsible for payment of the Member's First loan number 14167, which was in Plaintiffs name. 6. Defendant paid a portion of the loan; with her last payment being made in December 1997. 7. Since that time, Defendant has not paid the loan as requlre~ by the Marital Settlement Agreement 8. The loan was past due and was so indicated on Plaintiff's credit report. 9. Defendant continually refused to make the payments on the aforementioned loan 10. On or about April 14, 1998, Plaintiff paid the remaining balance of One Thousand One Hundred Six Dollars and Forty-eight cents ($1106.48) in order to clear his credit. 11. Paragraphs 10 and 13 of the Marital Settlement Agreement, Exhibit "A," provide for the payment of legal fees by the party breaching the Agreement. WHEREFORE, Plaintiffrequests this Honorable Court to fred Defendant in contempt, order Defendant to reimburse Plaintiff the sum of $1106.48, plus interest and order Defendant to pay attorney's fees. Respectfully submitted, Kathy M. Shughart Attorney for Plaintiff P.O. Box 6315 27 South Arlene Street Harrisburg, PA 17112-0315 (717) 540-8511 Supreme Court #39779 DOUGLAS P. REED, Plaimiff TINA M. REED, Defendant IN THE COURT OF C~3MMON PLEAS LEBANON COUNTY, PENNSYLVANIA NO: 4984-S-1995 :Civil Action - Law :Divorce I verify that the statements made in this Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unswom falsification to authorities. DOUGLAS P REED VS. TINA M REED IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA Action No. 96-20137 CERTIFICATE OF SERVICE JENNIFER M. SWISHER , an Employee in the Office of the Prothonotary of Lebanon County, Pennsylvania, hereby certifies that the foregoing RIU~E TO SHOW CAUSE was served as follows: KATHY M. SHUGART, ESQ. PO BOX 6315 ~AJRllISBUtlG, PA 17112 by Mailing on 4/2911999 TINAREED 1733 N. UNIOn' ST. #E MIDDLETOWN, PA 17057 by Mailing on 4/29/1999 Dated: 4/29/1999 DOUGLAS P. REED V. IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY PENNSYLVANIA CIVIL ACTION - FAMILY ~_~ Action No. 1996,20137 ~co TINA M. REED · Petition for Contempt : Counterclaim ORDER AND NOW, to wit, May 8, 2001, after hearing and in consideration of the testimony adduced, the findings of this Court are as follows: A. Plaintiff did not appear or present any information relative to the Motion for Contempt filed by Plaintiff which related to the alleged payment of $1,106.48 in satisfaction of Member's First Loan. B. Paragraph 9 of the parties Property Settlement Agreement provides that a 1971 Pontiac Ventura vehicle becomes the sole and exclusive property of the Defendant, Tina M. Reed. C. In mid January of 1999, the Plaintiff took possession of the Pontiac Ventura vehicle. D. Despite repeated requests, the Plaintiff failed to return the Pontiac Ventura to the Defendant. E. The Plaintiff indicated that he was retaining the vehicle because he claimed that the vehicle belonged to EXHIBIT "C" him. F. At the time the Plaintiff took possession of the Pontiac vehicle it did not work because there were problems pertaining to the clutch. G. The Defendant did not discover that the Pontiac vehicle was missing until several days after it had been parked in a nonoperating condition at her place of employment. H. Prior to the date on which the Defendant ascertained that the Pontiac vehicle was missing, she leased a Chevy Astro van from Carlin's Messenger Service. I. This Court does not find the Chevy Astro van to be a comparable vehicle to the Pontiac vehicle. J. This Court also finds that some of the relevant costs incurred by the Defendant would have necessarily been incurred even if the Plaintiff would not have taken possession of the Pontiac vehicle because the Pontiac was inoperable and in need of repairs. K. The Court estimates that had the Defendant obtained necessary repairs to the Pontiac vehicle she would have been deprived of the use of that vehicle as a result of Plaintiff's actions for a period of 80 days. L. The Court finds that a reasonable rental rate for a vehicle comparable to the Pontiac vehicle would be $17.50 per day. M. The Court finds that Defendant lost the sum of $1,400 by virtue of her inability to use the Pontiac vehicle for a period of 80 days following the Plaintiff's taking possession of that vehicle. N. Paragraph 13 of the parties Property Settlement Agreement provides for the payment of attorney's fees upon breach of the agreement by a party. O. The Court finds that the Plaintiff breached the Property Settlement Agreement by improperly taking possession of the Pontiac vehicle as outlined above. P. The Court finds that Defendant incurred $750 in attorney's fees as result of the breach by the Plaintiff. Accordingly, after consideration of all the facts and circumstances presented, including those mentioned above, the Order of this Court is as follows: 1. The Plaintiff's Motion for Contempt is respectfully refused. 2. The Defendant's Motion for Contempt is 3 granted. The Plaintiff is directed to pay the sum of $2,150 to the Defendant within 90 days from today's date. cc: mlc Peter B. Kathy M. BY THE COURT: BRADFORD H. CHARLES ,J. Foster, Esquire/ Shughart, Esquire PURSUANT 70 RULE Y,,"~ ar's hereby nod?isd t',:~t, ',~;s (-'car has ~MARITAL SETTLEMENT AGREEMENT THIS AGREEMENT, is made this L~-,~(o day of k] ~t/ , 1997. by and between DOUGLAS P. REED. erX/ew Cumberland, York County,, ?ermsylvama. hereinager referred to a.s "Husband" and TrNA M. REED. of New Cumberland, York County., Pennsylvania, hereinafter referred to as "Wife." WHEREAS. the parties were married on June 6, 1992: and WHEREAS, in consequence of disputes and unhappy differences, the parties have separated and are now and for some time have been living apart from each other and since their separation, have a~eed to live separately and apart during the rest of their lives: and WHEREAS. the parties desire to confirm their separation and make arrangements in connection therewith, including the settlement of their pronerty rights and any other rights and obligations growing out of the marriage reiationship. IT IS THEREFORE AGREED by and between the parties that: l. C~. The consideration for this Agreement is the mutual promises and agreements herein contained. 2. ~Urp. AgAILO_~. It shall be lawful for each party at all times hereafter to live separate and apart from the other party at such place or places as he or she may from time to time choose or deem fit. 3. N N . Each party shall be free from interference, authority and control, direct or indirect, by the other as fully as if he or she were single and unmamed. Neither shall molest the other, nor compel, nor encieavor to compel the other to cohabit or dwell with him or her. 4. DIVISION OF MARITAL .'.ND PERSONAL PROPERTY. Other t ...... otherw/se set forth :.n this A~eement. the parties hereto ,~gree that the marital property and personal property of the parties has been atvtded to their mutual satisfaction. The van/es a~ee that they shall retain all personal property, in their respective possession and · EXHIBIT "D" waive ail rights as to marital proper'q,' and personai property in the possession of the other s~ouse as of the dane of the execution of this A~eement. 5. RELEASE OF INTEREST IN SEPARATE ASSETS. The parties hereto agr~ ee to waive any and ail fight to claim any interest or share in the separate assets retained by the other spouse. This waiver and release specifically includes any interest in each other's pension, employee benefits, life insurance, business interests, and any and all other separate assets. 6. WAIVER OF CLAIMS AGAINST ESTATES AND MUTUAL RELEASE. Each parry, may dispose of his or her property in any way and each party hereby waives and relinquishes any and all fight he or she may now have or may hereaft, er acquire, under the present or future laws of any jurisdiction, to share in the property or the estate of the other as a result of the marital relationship including, without limitation, dower, thirds, courtesy, allowance, widow's allowance, homestead fights, right to take in intestacy, right to hake against the will of the other, right to act as administrator/executor of the other s estate, and each parry will at the request of the other, execute, acknowledge and deliver any and all instruments which may be necessary or advisable to carry, into effect this mutual waiver and relinquishment of ali such interests, rights and claims. The parties hereto have been informed of their rights or have been advised to seek counsel to inform them of their rights under and pursuant to the Divorce Code. particularly the provisions concerning aiimony, alimony pendente }itc, equitable distribution of maritai property, counsel fees or expenses. Both parties agree that this Agreement shall conclusively provide for the distribution of property under the said law and hereby waive, release and relinquish any further rights they may respectively have against the other for aiimony, aiimony pendente lite, equitable distribution of marital property, counsel fees or expenses. Each of the parties hereto, for himself or herself, his or her executors. administrators, or assigns, does remise, r.~!ease, quit claim and forever dischazge the other party, hereto, his or her heirs, executors, administrators or assigns or any of them. of any and all claims, demands, damages, action :::-o;z ,:fac:ion. or suits at law'. or :" ~-quity, of any 'kind or nature, for or because of any matter or thing done, omitted or suffered to be' done by said other pan5,' prior to and including the date hereof. 7. WAIVER OF PENSION AND OTI4'ER EMPLOYEE BENEFITS. The parties hereby waive any and all fight to claim any interest or sha:"~ in each other's pension or individual retirement accounts. The parties acknowiedge that Husband has a 401K plan through his employer. Ransome Lift. 8. AFTER-_4.COUIRED PROPERTY. Each of the parties shall hereafter own and enjoy, independently ofany claim or right of the other, ali items of prope~.~, be the> real. personal or mixed, tangible or intangible, which are hereafter acquired by him or her with full power in him or her to dispose of the same as fully and effectively, in all respects and for all purposes, as though he or she were unmarried. 9. ~ The parties a~ee that Wife shall become the sole owner of the 1991 Yamaha and the 1971 Pontiac Venmra. Wife agrees that she will hold Husband free and harmless from any and all liabili~ as a rzsult of ownership of these vehicles. i0. P.--~I~- The parties represent and warrant to each other that since separation, they have not incurred any debts or made any contracts, ott,,er than those listed herein, and in the future they will not incur any debts or make any contracts for which the other shall be held liable. Wife agrees to be solely liable for the loan at Member's First. loan number 14167. Said lo",m is currently in Husband's name. Nonetheless. Wife agrees to assume responsibility for the payment of t~.e unpaid balance, together with interest thereon, and hereby a~ees to hold Husband free and harmless from any and all liability as a result of non-payment of the loan by her. Should Wife default and it becomes necessary, for Husband to pa.',' any amount as a result of her liability, on the loan. Wife authorizes and empowers any Prothonotary, Clerk or Attorney of any Court of Record w/thin the United S~a[~z Jr elsewhere to aTpear f?- '~e- n-d with or wlmom oec:aranon. [o confess iudgmem at any time against her and in favor of Husband for the above sum plus interest thereon, with costs of suit and an attorney's commission of fifteen percent for collection. All of the foregoing promises are the joint and several promises of Wife and shall bind her, her heirs, personal representatives, successors and assigns. 1 I. REPRESENTATION BY COL.rNSEL. The parties acknowledge that both have soughi or-have had the opportumry to seek independent legal counsel. The parties further acknowledge that Husband is represented by Kathy' M. Shughart, Esquire and at no time has Wife been represemed by Kathy M. Shughart. Esquire. Wife is not represented by Counse? but has had the opponuni~' to review this Agreement and consult with an attorney should she so desire. 12. ~. The panics hereto agree to enter into a mutual consent divorce. The pm'ties agree to execute the Affidavits of Consent and other requisite documents necessary, to finalize the divorce. 13. BREACH. If either party breaches an:,' provision of this Agreement, the other party, shall have the right, at his or her election, to sue for damages of such breach or seek such o~her remedies as may be available to him or her, and the party, breaching this Agreement shall be responsible for payment of legal fees and costs incurred by the other in enforcing their rights under this Agreement. 14. FINANCIAL DOCUMENT DISCLOSURE. The parties waive their fights to require the filing of financial statements by the other, although they have been advised that it is their legal fight to have such disclosures prior to entering into this Agreement. By executing this Agreement, the parties hereby acknowledge their satisfaction with the . information presently available to them and agree not to use non-disclosure as a basis to overtu-n this Agreement. 15. EXECUTION OF DOCUMENTS. Both parties hereby agree to execute any documents required to implement this Agreement. 16. .ADDITIONAL INSTRUMENTS. Each of the parties shall, from time to time. at the request of the other, execute, acknowledge, and deliver to the other any and all furmer ~ents that may be reasonably required to ~ive full force and effect to ~ne provisions of this Agreement. 4 17. SUBSEOUENT RECONCILIATION. The parties agree that the terms of tiffs Agreement shall not be effected by their subsequent reconciliation or resumption of marital relatio)-s unless the parties otherwise specifically agree in writing. 18. ENTIRE AGREEMENT. This Agreement contains the entire understanding of the parties and there are no representations, warranties, covenants or 'undertakings omer than those expressix set forth herein. I9. MODIFICATION AND WAIVER. A modification or waiver of any of the provisions of tiffs Agreement shall be effective only if made in writing and executed with the same formality, as this Agreement. The failure of either party, to insist upon strict performance of any of the provisions of fids Agreement shall not oe consu-ued as a waiver of an:' s,.:bseouent default of the same or similar nature. 20. PART,.-,[. ,., · .~,~,~,~ ~Y. If any provisions of tiffs Agreement are held to be invalid or unenforceable, all other provisions shall nevertheless continue in full force and effect. 21. VOLUNTARY EXECUTION. The parties hereby acknowledge that this Agreement is fair and equitable and that it is entered into freely and voluntarily, and that it is not the result of any duress or undue influence. 22. .5.~. This Agreement shall be construed in accordance v-ith the laws of the Con'. monwealth of Pennsylvania. 23. ~_I~. Except as other~.. ..... ~ herein, all provisions of thig Agreement shall be binding upon the respective heirs, executors, or administrators of the parties. IN WITNESS WI'IEREOF. the parties hereto have set their hands and seals the date and year first above written. Wimess ' Douglas ~. Reed Wimess - ' ~Keed ~ 5 N W COMMONWEALTH Of PENNSYLVANIA COUNTY OF DAUPHIN ~;:. :al_. :h~ ,'~, ~'-~ - da> of "%'~ :'"~ ' . 1997, before me. :."2 undersigned officer, a Notary. Public in and :~r iai~ C.,,.mtv and State. personally appeared Tina M, Reed. known to me or satisfactorily proven to be the person who~e ha=.· is :,,b~.:'ibed to the within instrument. and acknowledged the above Marital ProperW. Settlement Agreement to be her voluntary act and deed, IN WITNESS WHEREOF, I have hereunto set my hand and seal. NOTARIAL SEAL. BARBARA A. OUIGLEY, No~'y Pu~ic ] ~ Cum~rland Bolo. Cuml~elaxl Co. COMMONWEALTH OF PENNSYLVANIA COUNTY OF DAUPHIN On:his, the %'~t- ~-'~k~x dayof , 1097, before me. the undersigned officer, a Notary. Public in and for said Coumw and State, personally appeared Douglas P. Reed. known to me or satisfactorily proven to be the perso'~ whose name is subscribed to the within insn'umenL and acl~3owledged the above M~ital Settlement A§rcement to be his volun~-'~'y act and deed. LN WITNESS WHEREOF, I have hereunto set my hand and seal. i~OTARIAL SE.~L &~BA~A A. QUIGLEY, lea-y'Pt~lc I 6 COMMONWEALTH OF PENNSYLVANIA COUNTY OF DAUPHIN DOUGLAS P. REED, Plaintiff TINA M. REED, Defendant : IN THE COURT OF COMMON PLEAS : LEBANON COUNTY, PENNSYLVANIA : NO. 4984-S-1995 : CIVIL ACTION - DIVORCE Decree in Divorce ANDNOW, -~2~-£~vt~¢ ~\~C~q~ ,19 . it is Ordered and Decreed that Plaintiff, Douglas P. Reed, and Defendant, Tina M. Reed, are divorced fi.om the bonds of matrimony. The Marital Settlement Agreement dated November 26, 1997 shall be incorporated by reference into the Divorce Decree, but notwithstanding such incorporation, this Agreement shall not be merged in such Decree, but shall in all respects survive the same and be forever binding and conclusive upon the parties. BY THE COURT, EXHIBIT "E" ROBERT ,] 7-a~' p'' Judge Certified VERIFICATION I, Tina Reed, hereby verify that the facts set forth in the foregoing Petition to Open Judgement are tree and correct to the best of my knowledge, information and belief. I further understand that false statements herein made are subject to the penalties of 18 Pa. C. S. Section 4904 relative to unswom falsification to authorities. May 2002 Dna Reed CERTIFICATE OF SERVICE I hereby certify that on this date, May 22, 2002, I served a copy of the forgoing Petition to Open Judgement on the Plaintiff by mailing said copy by U.S. Mail at Harrisburg, PA to the Attorney for Plaintiff at the following address: Kathy M. Shughart, Esquire 27 South Abilene Street Harrisburg, PA 17112-0315 May 22, 2002 Peter B. Foster Attorney for Defendant DOUGLAS P. REED, Plaintiff TINA M. REED, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA : NO. c a- o__ .. : CONFESSION OF JUDGMENT NOTICE You are hereby notified that on t~7~_ ~r /D ,2002, Judgment has been entered against you in the above-captioned case. Attached are copies of documents filed in this matter. Date:~ Prothonotary I hereby certify that the name and address of the proper person to receive this notice is: Tina M. Reed 634 Hummel Avenue Lemoyne, Pennsylvania, 17070. If you have any questions concerning the above case, please contact: Kathy M. Shughart, Esq. Attorney for Plaintiff P.O. Box 6315 27 South Arlene Street Harrisburg, PA 17112-0315 (717) 540-8511 Supreme Court //39779 DOUGLAS P. REED, Plaintiff TINA M. REED, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA : No. Oa - ,ts~ ~bc(. : CONFESSION OF JUDGMENT CONFESSION OF JUDGMENT Pursuant to the authority contained in the warrant of attorney, the original and a copy of which is attached to the complaint filed in this action, I appear for the defendant and confess judgment in favor of the plaintiff and against defendant as follows: Principal sum Other authorized items: Costs Interest Attorney fees TOTAL S1106.48 /' $165.97 .Y DOUGLAS P. REED, Plaintiff TINA M. REED, Defendant : CUMBERLAND COUNTY, : PENNSYLVANIA IN THE COURT OF COMMON PLEAS : NO. ~,,). --- o~31/=~ CONFESSION OF JUDGMENT COMPLAINT FOR CONFESSION OF JUDGMENT AND NOW, comes the Plaintiff, Douglas P. Reed, by his attorney, Kathy M. Shughart, Esquire, and files this Complaint, based upon the following: 1. Plaintiff, Douglas P. Reed, in an adult individual who currently resides at 113 Poplar Road, New Cumberland, York County, Pennsylvania. 2. Defendant, Tina M. Reed, is an adult individual who currently resides at 634 Hummel Avenue, Lemoyne, Cumberland County, Pennsylvania. 3. Plaintiff and Defendant are parties to a Marital Settlement Agreement, dated November 27, 1997 and incorporated into the Divorce Decree of Lebanon County, Pennsylvania which was entered on December 16, 1997 at docket number 96-20137. 4. A true and correct copy of the Marital Settlement Agreement is attached hereto and incorporated by reference herein as Exhibit "A". The original Marital Settlement Agreement was filed in the Court of Common Pleas of Lebanon County, Pennsylvania at docket number 96-20137 on December 15, 1997. 5. This Judgment is not entered by confession in connection with a consumer credit transaction. 6. This instrument has not been assigned. 7. There has been no prior confession of judgment on this claim in any other court. 8. Paragraph 10 of the Marital Settlement Agreement, Exhibit "A", provides that Defendant shall be solely responsible for payment of the Member's First loan number 14167, which was in Plaintiff's name. 9. Defendant defaulted in her payment of the loan, with her last payment being made in December 1997. 10. On or about April 14, 1998, Plaintiff paid the remaining balance of One Thousand One Hundred Six Dollars and Forty-eight cents ($1106.48) on said loan. 11. A tree and correct copy of Plaintiff's Affidavit which was filed on August 8, 2001 in the Court of Common Pleas of Lebanon County, Pennsylvania at docket number 96-20137, is attached hereto and incorporated by reference herein as Exhibit "B." Plaintiff's Affidavit contains copies of the notice of missed payments on the loan and receipt of payment of the outstanding balance by Plaintiff. 12. Paragraph 10 of the Marital Settlement Agreement, Exhibit "A," provides for confession of judgment in the event of Defendant's default in the payment of said loan. 13. Paragraph 10 of the Marital Settlement Agreement, Exhibit "A," further provides for interest, the payment costs of suit and a fifteen percent attorney's commission in the event of a confession of judgment based upon Defendant's default in the payment of said loan. 14. The amount due and authorized by the Marital Settlement Agreement, Exhibit "A", is as follows: a. the principal sum of $1106.48 b. interest c. attorney commission in the amount of $165.97 d. costs 15. Plaintiff demands that judgment be entered against Defendant in the amount of $1272.45 plus interest and costs as authorized by the warrant. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment against Defendant in the amount of $1272.45 plus interest and costs as authorized by the warrant. fUlly subka5~, - Shughart, Esquire ~ Supreme Court ID #39779 27 South Arlene Street Post Office Box 6315 Harrisburg, PA 17112-0315 (717) 540-8511 COMMONWEALTH OF PENNSYLVANIA COUNTY OF DAUPHIN DOUGLAS P. REED, Plaintiff : IN THE COURT OF COMMON PLEAS : LEBANON COUNTY, PENNSYLVANIA : : NO. 4984-S-1995 TINA M. REED, : Defendant : CIVIL ACTION - DIVORCE Decree in Divorce ANDNOW, -X~.~(Dv~h~c \\~,.%C~q~/ ,19 , it is Ordered and Decreed that Plaintiff, Douglas P. Reed, and Defendant, Tina M. Reed, are divorced from the bonds of matrimony. The Marital Settlement Agreement dated November 26, 1997 shall be incorporated by reference into the Divorce Decree, but notwithstanding such incorporation, this Agreement shall not be merged in such Decree, but shall in all respects survive the same and be forever binding and conclusive upon the parties. BY THF, COURT, Judge Certified /~~~-e.4. / ~ ,199__7 '~ ,~/ _ .,¢ pr.o~honotary ;MARITAL SETTLEMENT AGREEMENT THIS AGREEMENT, ismadethis '~(o dayof k/~t/ ,1997. by and between DOUGLAS P. REED. e~'Xlew Cumberland, York County., Pennsylvania hereina!er referred to as "Husband" and TINA M. REED. of New Cumberland. York County,, Pennsylvania. hereinafter referred to as "Wife." WHEREAS, the parties were married on June 6. 1992; and WHEREAS, in consequence of disputes and unhappy differences, the panics have separated and are now and for some time have been living apart from each other and since their separation, have a~eed to live separately and apart during the rest of their lives: and WHEREAS. the parties desire to confirm their separation and make arrangements ir, connection therewith, including the settlement of their pro;~erty rights and any other fights and obligations growing out of the marriage relationship. IT IS THEREFORE AGREED by and between the parties that: 1. CONSIDERATION. The consideration for this Agreement is the mutual promises and agreements herein contained. 2. SEPARATION. It shall be lawful for each party, at all times hereafter to live separate and apart from the other party at such place or places as he or she may from time to time choose or deem fit. 3. NO INTERFERENCE~ Each party shall be free from interference, authority and control, direct or indirect, by the other as fully as if he or she were single and unmarried. Neither shall molest the other, nor compel, nor encieavor to compel the other to cohabit or dwell with him or her. 4. DIVISION OF MARITAL .'-,ND PERSONAL PROPERTY. Other u otherwise set forth !r, this A~eement. the parties heret~ ,~gree that the marital property and personal property of the parties has been mwded to their mutual satisfaction. The parties a~ee that they shall retain all personal property, in their respective possession and waive all fights as to marital prope~' and personal pmpert3.' in the possession of the other spouse as o£the date of the execution of this Agreement. 5. RELEASE OF INTEREST IN SEPARATE ASSETS. The parties hereto .agree to waive any and ail fight to claim any interest or share in the separate assets retained by the other spouse. This waiver and release specifically includes any interest in each other's pension, employee benefits, life insurance, business interests, and any and all other separate assets. 6. WAIVER OF CLAIMS AGAINST ESTATES AND MUTUAL RELEASE. Each parry, may dispose ofkis or her property in any way and each party hereby waives and relinquishes any and ail fight he or she may now have or may hereafz, er acquire, under the present or future laws of any jurisdiction, to share in the property.' or the estate of the other as a result of the marital relationship including, without limitation, dower, thirds, courtesy, allowance, widow's allowance, homestead fights, fight to take in intestacy, fight to take against the will of the other, fight to act as administrator/executor of the other s estate, and each parry will at the request of the other, execute, acknowledge and deliver any and all instruments which may be necessary or advisable to carry, into effect this mutual waiver and relinquishment of all such interests, fights and claims. The parties hereto have been informed of their fights or have been advised to seek counsel to inform them of their fights under and pursuant to the Divorce Code. particularly the provisions concerning alimony, alimony pendeme }itc, equitable .- distribution of marital property, counsel fees or expenses. Both parties agree that this Agreement shall conclusively provide for the distribution of property under the said law and hereby waive, release and relinquish any further fights they may respectively have against the other for alimony, alimony pendeme lite, equitable distribution of marital property, counsel fees or expenses. Each of the parties hereto, for himself or herself, his or her executors. administrators, or assigns, does remise, release, quit claim and forever disck, zzge the other party, hereto, his or her heirs, executors, administrators or assigns or any of them. of any and all cia/ms, demands, damages, action :axo:: cf a:::.on, ar suits at law', or ;'- equity, of any kind or nature, for or because of any matter or thing done, omitted or sufferekl'to be' done by said other pa~.' prior to and including the date hereof. 7. WAIVER OF pENSION .~ND OTI-IER EMPLOYEE BENEFITS. The parties hereby waive any and all right to claim any interest or sha_~, in each other's pension or individua) retirement accounts. The parties acknowledge that Husband has a 401K plan through his employer. Ransome Lift. 8. AFTER-ACOUIRED PROPERTY. Each of the parties shall hereafter o~ and enjoy, independently of any claim or right of the other, ali items of propemy, be they real, personal or mixed, tangible or intangible, which are hereafter acquired by him or her with full power in him or her to dispose of the same as fully and effectively, in all respects and for all purposes, as though he or she were unmarried. 9. MOTOR VEHICLES. The parties agree that Wife shall become the sole owner of the 1991 Yamaha and the 1971 Pontiac Venmra. Wife agrees that she will hold Husband free and harmless from any and ail liability as a result of ownership of these vehicles. i0. pARTIES' DEBTS. The parties represent and warrant to each other that since separation, they have not incurred any debts or made any contracts, other than those listed herein, and in the future they will not incur any debts or make any contracts for which the other shall be held liable. Wife agrees to be solely liable for the loan at Member's First. loan number 14167. Said loan is currently in Husband's name. Nonetheless, Wife agrees to assume responsibility for the payment of rhe unpaid balance, together with interest thereon, and hereby agrees to hold Husband free and harmless from any and all liability as a result of non-payment of the loan by her. Should Wife default and it becomes necessary, for Husband to pay any amount as a result of her liability on the loan. Wife authorizes and empowers any Prothonotary, Clerk or Attorney of any Court of Record within the United - ~-., ~ ~--,- h~- 2nd with or without oec:aranon, to confess iudgmem ~tat~3 or elsewhere to -rt, e ....... at any time against her and in favor of Husband for the above sum plus interest thereon, with costs of suit and an attorney's commission of fifteen percem for collection. All of the foregoing promises are the joint and several promises of Wife and shall bind her, her heirs, personal representatives, successors and assigns. 11. ltEPRESENTATION BY COUNSEL. The parties acknowledge that both have sought or-have had the opportunity, to seek independent legal coun~qel. The parties further acknowledge that Husband is represented by Katn,' M. Shughart, Esquire and at no time has Wife been represented by Kathy M. Shughart. Esquire. Wife is not represented by Counse! but has had the oppommity to review this Agreement and consult with an attorney should she so desire. 12. DIVORCE. The parties hereto a~ee to enter into a mutual consent divorce. The parties agree to execute the Affidavits of Consent and other requisite documents necessary, to finalize the divorce. 13. ~. If either party breaches an',,' provision of this Agreement. the other party, shall have the right, at his or her election, to sue for damages of such breach or seek such other remedies as may be available to him or her, and the party, breaching this Agreement shall be responsible for payment of legal fees and costs incurred by the other in enforcing their rights under this Agreement. 14. FINANCIAL DOCUMENT DISCLOSURE. The parties waive their fights to require the filing of financial statements by the other, although they have been advised that it is their legal right to have such disclosures prior to entering into this Agreement. By executing this Agreement, the parties hereby acknowledge their satisfaction with the .. information presently available to them and agree not to use non-disclosure as a basis to overturn this Agreement. 15. EXECUTION OF DOCUMENTS. Both parties hereby agree to execute any documents required to implement this Agreement. 16. ADDITIONAL INSTRUMENTS. Each of the parties shall, from time to time, at the request of the other, execute, acknowledge, and deliver to the other any and all furmer insmm~ents that may be reasonably required to give full fome and effect to provisions of this Agreement. 4 17. SUBSEOUENT RECONCILIATION. The parties aereo. ~ that.. _. the terms of this Agreement shall not be effected by their subsequent reconciliation or resumption of marital relatiovs unless the parties otherwise specifically agree in writing. t8. ENTIRE AGREEMENT. This Agreement contains the entire understanding of the parties and there are no representations, warranties, covenants or 'undertakings other than those expressiv set forth herein. t9. MODIFICATION AND WAIVER. A modification or waiver of any of the provisions of this Agreement shall be effective only if made in writing and executed with the same formality, as this Agreement. The failure of either party, to insist upon strict peffoiniance of any of the provisions of this Agreement shall not t~e construed as a waiver of an:' ?.:bseouent default of the same or similar nature. ~ .... -,~,~,, ~Y. If any provisions of this Agreement are held to be 20. PARTIAL '"~" ' ~'~'~ invalid or unenforceable, all other provisions shall nevertheless continue in full force and effect. 21. VOLUNTARY EXECUTION. The parties hereby acknowledge that this Agreement is fair and equitable and that it is entered into freely and voluntarily, and that it is not the result of any duress or undue influence. 22. APPLICABLE LAW. This Agreement shall be construed in accordance v'ith the laws of the Corr. monwealth of Pennsylvania. 23. BINDING EFFECT. Except as othem.: ..... ~. herein, ail provisions of thig' Agreement shall be binding upon the respective heirs, executors, or administrators of the parties. IN WITNESS V~-IEREOF. the parties hereto have set their hands and seals the date and year first above written. WlTNES£. Witness Douglas ~. Reed Wimess - ' Reed 5 ACIGNOWLEDGMENT COMMONWEALTH OF PENNSYLVANIA COUNTY OF DAUPHIN ~:. ::.:_. :ac . ~c. - da> of 1997, before me.:h.~ undersigned officer, a Notat7 Pubiic in and ;'~l- said C,~,nty and State. personally appeared Tina M. Reed. known to me or satisfactorily proven to be the person whose ha.-..: is :,,bsc:'ibed to the within instrument. and acknowledged the above Marital Property. Settlement Agreement to be her voluntary act and deed. IN WITNESS WHEREOF. l have hereunto set my hand and seal. NOTARIAL SEAL. ' Cumberland Bmo. Cuml~tml Co. f'~.nmi~lon ~ 0~. 1. ~001 COMMONWEALTH OF PENNSYL V ANIA COUNTY OF DAUPHIN On this, the ~-~ ko-'~~ dayof ~'"~,~\\~ . ,1997, before me, the undersigned officer, a Notary. Public in and for said County and State, personally appeared Douglas P. Reed. known to me or satisfactorily proven to be the person whose name is subscribed to the within " instrument, and acknowledged the above Marital Settlement Agreement to be his voluntary act and deed. WITNESS WHEREOF, I have hereunto set my hand and seal. 6 DOUGLAS P. REED, Plaintiff Vo TINA M. REED, IN THE COURT OF COMMON PLEAS : LEBANON COUNTY, PnNNSYLVANIA :Civil Action - Law Defendant :Divorce AFFIDAVIT DOUGLAS P. REED, Plaintiff, hereby certifies that on April 14, 1998, he,p~id the remaining balance of One Thousand One Hundred Six Dollars and Forty-eigh[~i2 ($1106.48) Cents on the Member's First loan number #14167, as evidenced by a copy of the receipt for payment attached hereto and incorporated herein as Exhibit "A". and the payments on said loan were the responsibility ofTINA M. REED, Defendant, pursuant to Paragraph 10 of the Marital Settlement Agreement dated on November 27, 1997, filed December 15, 1997, and incorporated in the Divorce Decree entered on December 16, 1997. Said loan was in default as evidenced by the copy of the late notice attached hereto and incorporated herein as Exhibit "B". Date: DouglaffP. Reed Swom to and subscribed before me this ~ c-4, day of August, 2001. Notary NOTARIAL SEAL ~ MELISSA A. POUNG, Notmy Public I Lower Paxton Twp., Dauphin Coumy I My Commission Expires 8ep[ 1, 20031 Members m O Box 40 · MecnamcsDurg. ~A 17055-0040 TOLL FREE ,800) 283-2328 ' ', i:::',:'l;l .',:::3 "i'V"' · h:F'F ~.,'1': 34/:la/99 .6--., ., F'F! iN,", ~6.,~8 INT: ,, ~)0 ,SqJ~: ;)Al'E:: 11/30,"~9 IHT DATE: ' '~.'.:~' '? OFEz [NT AODED: ,3(4 iT1:! I SIGNATURE Members P O. Box 40 · Mecnamcsburg. PA 17055-0040 ~717~ 697-t161 TOLL FREE ~800/ 283-2328 NCUA S GNATURE VERIFICATION I verify that the statements made in this Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unswom falsification to authorities. Douglas P?Reed, Plaintiff DOUGLAS P. REED, Plaintiff VS. TINA M. REED, Defendant IN THE COURT OF COlVIMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-2316 CIVIL TERM · · ~ ....... 0,, OF JUDGMENT And now this RULE TO SHOW CAUSE ~day of May 2002, upon consideration of Defendant's Petition to Open Judgement, a Rule is issued upon Plaintiffto show cause why said judgement should not be opened. Rule returnable twenty (20) days after service. DOUGLAS P. REED, Plaintiff VS. TINA M. REED, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-2316 CIVIL TERM CONFESSION OF JUDGMENT AMENDED PETITION TO OPEN JUDGEMENT And now this 1st day of July, 2002, comes Defendant Tina Reed and files an Amended Petition to Open Judgement in amending her Petition to Open Judgment filed on May 22, 2002 and seeks to open the judgment against her and, in support thereof, avers as follows: 1. On May 10, 2002, Plaintiff filed a Complaint for Confession of Judgement against Defendant alleging that she had failed to pay a debt to Member's First Credit Union, which was required under a Marital Settlement Agreement between the parties. 2. Also, on May 10, 2002, Plaintiff filed a Confession of Judgement against Defendant for $1286.95. A copy of said Confession of Judgement is attached as Exhibit "A". 3. Defendant received Notice of the filing of the Confession of Judgement on May 13, 2002, when a copy of said judgement was handed to her Attorney. 4. Defendant has acted timely by filing the original Petition to Open Judgment on May 22, 2002 and by filing this Amended Petition on July 1, 2002. 5. Said Judgement should be opened for the following reasons: A. THE ISSUE IS "RES JUDICATA? i) The issue of the payment of the Member's First loan payment has been previously decided in a civil action between the parties in Lebanon County, Pennsylvania docketed at No. 1996-20137 and, therefore, is "res judicata". ii) In said Lebanon County Action, Plaintiff filed a Petition for Contempt in attempting to prove that Defendant had breached the parties' Marital Settlement Agreement by not making the $1106.48 payment to Member's First Credit Union. A copy of said Petition for Contempt is attached as Exhibit "B". iii) On May 8, 2001, Judge Bradford H. Charles in the Lebanon County Action ruled that, since the Plaintiff did not appear at the scheduled heating, the Petition for Contempt, related to the Member's First Loan, was dismissed. A copy of the Judge's Order is attached as Exhibit "C". iv) For these reasons, the issue of the Member's First loan payment is "res judicata" for that same issue was raised in the Plaintiff's Complaint for Confession of Judgement and, therefore, the judgment should be opened. Bo THE CLAIM FOR PAYMENT OF THE MEMBER'S FIRST LOAN PAYMENT CAN ONLY BE RAISED IN !.EBANON COUNTY i) The matter of payment of the Member's First loan payment was established in the Marital Settlement Agreement between the Parties which is attached as Exhibit "D". ii) Said Marital Settlement Agreement was incorporated into the parties' Divorce Decree in Lebanon County at No. 4984 S 1995. A copy of said Decree is attached as Exhibit iii) Consequently the proper forum for raising the issue of the Member's First payment is Lebanon County and not Cumberland County where Plaintiff filed his Complaint for Confession of Judgement and, therefore, the judgment should be opened. Co DEFENDANT HAS A DEFENSE TO THE UNDERLYING CLAIM FOR PAYMENT OF THE MEMBER'S FIRST LOAN PAYMENT i) Plaintiff has attempted to confess judgment on a promise by Plaintiffto pay the unpaid balance on a loan, numbered14167, at Member's First Credit Union under said Marital Settlement Agreement. ii) Plaintiffpaid offthe balance, $1106.48, on this loan on April 14, 1998 in claiming that the loan payments were overdue but this was incorrect since the next payment was not due until the end of April, 1999. iii) Since no loan payment was due and Plaintiff voluntarily paid offthe loan, Defendant has not breached the Marital Settlement Agreement and Defendant has a defense to the underlying claim in this case. iv) Therefore, the Judgment should be opened. WHEREFORE, for all these reasons, Defendant, Tina Reed, respectfully requests this Court to open Plaintiff's judgement against her. July 1, 2002 Peter B. Foster Attorney for Defendant Pinskey & Foster 121 South Street Harrisburg, PA 17101 (717) 234-9321 DOUGLAS P. REED, Plaintiff TINA M. REED, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA .. : CONFESSION OF JUDGMENT : - ':."CONF. ESSION OF-JUDGMENT Pursuant to the authority contained in the warrant of attorney, the original and a copy of which is attached to the complaint filed in this action, I appear for the defendant and confess judgment in favor of the plaintiff and against defendant as follows: Principal sum Other authorized items: Costs Interest Attorney fees TOTAL $1106.48 $165.97 ~B ~ ~m 'A~omey for ~fend~t / EXHIBIT "A" DOUGLAS P. REED, Plaintiff TINA M. REED, · IN THE COURT OF COMMON PLEAS · LEBANON COUNTY, PENNSYLVANIA ' NO:.:..~~ q (~ ~' ~(D[ ~-~ :Civil Action - Law Defendant :Divorce RULE AND NOW, to wit, this ,.~,~rA day of C~ (¢c.i k ,1999, upon consideration of the foregoing Plaintiff's Petition for Contempt, a Rule is granted upon Defendant, Tina M. Reed, to show cause why she should not be found in Contempt and to . show cause why she should not be ordered to reimburse Plaintiff the sum of $1106.48, plus interest and order Defendant to pay attorney's fees. '~ d,c~4~. Cx,O',~¢- %C~-~,d;c ¢_, Rule returnable on at BY THE COURT: /s/ ROBERT J, EBY, P.j. Judge EXHIBIT "B" DOUGLAS P. REED, Plaintiff TINA M. REED, Defendant : IN THE COURT OF COMMON PLEAS : LEBANON COUNTY, PENNSYLVANIA : NO: 4984-S-1995 :Civil Action - Law :Divorce AND NOW, to wit, this day of ,1999, upon consideration of the foregoing Plaintiff's Petition for Contempt, it is hereby ordered that a hearing shall be held on ,1999 at .m. at the Lebanon County Courthouse, ,Courtroom # BY THE COURT: Judge DOUGLAS P. REED, Plaintiff TINA M. REED, Defendant : IN THE COURT OF COMMON PLEAS : LEBANON COUNTY, PENNSYLVANIA : NO: 4984-S-1995 :Civil Action - Law :Divorce PETITION FOR CONTEMPT AND ENFORCEMENT ~' m AND NOW comes Plaintiff, Douglas P. Reed, by his attorney, Kathy ~ ,z~ r-- m Shughart, Esquire, and files this Petition, based upon the following: ~ ,-. ~ m 1. ~ Plaintiff, Douglas P. Reed, born April 22, 1963, is an adult indi~id~ *:: who currently resides at 2419 Derry Street, Harrisburg, Dauphin County, PennsylVil~i ,~ 2. Defendant, Tina M. Reed, bom November 26, 1971, is an adult individual who currently resides at 1733 North Union Street, #E, Dauphin County, Middletown, Pennsylvania. 3. On November 27, 1997, the parties executed a Mar/ml Settlement Agreement. 4. Said Marital Settlement Agreement was incorporated into the Divorce Decree entered on December 16, 1997, incorporated by reference herein and referred to as Exhibit "A". 5. P~agraph 10 of the Marital Settlemmt Agreement prevides that Defendant shall be solely responsible for payment of the Member's First loan number 14167, which was in Plaintiff's name. 6. Defendant paid a portion of the loan; with her last payment being made in December 1997. 7. Since that time, Defendant has not paid the loan as require~l by the Marital Settlement Agreement The loan was past due and was so indicated on Plaintiff's credit report. Defendant continually refused to make the payments on the aforementioned loan 10. On or about April 14, 1998, Plaintiff paid the remaiaing balance of One Thousand One Hundred Six Dollars and Forty-eight cents ($1106.48) in order to clear his credit. 11. Paragraphs 10 and 13 of the Marital Settlement Agreement, Exhibit "A," provide for the payment of legal fees by the party breaching the Agreement. WHEREFORE, Ptaintiffrequests this Honorable Court to find Defendant in contempt, order Defendant to reimburse Plaintiff the sum of $1106.48, plus interest and order Defendant to pay attorney's fees. Respectfully submitted, Kathy M. Shughart Attorney for Pla/ntiff P.O. Box 6315 27 South Arlene Street Harrisburg, PA 17112-0315 (717) 540-8511 Supreme Court #39779 DOUGLAS P. REED, Plaintiff TINA M. REED, Defendant : IN THE COURT OF C~)MMON PLEAS : LEBANON COUNTY, PENNSYLVANIA : NO: 4984-S-1995 :Civil Action - Law :Divorce VERIFICATION I verify that the statements made in this Complaint are tree and correct. I understand that false statemems herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to tmswom falsification to authorities. Date: IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA DOUGLAS P REED Action No. 96-20137 VS. TINA M REED CERTIFICATE OF SERVICE JENNIFER M. SWiSHER , an Employee in the Office of the Prothonotary of Lebanon County, Pennsylvania, hereby certifies that the foregoing RULE TO SHOW CAUSE was served as follows: KATHY M. SEUGART, ESQ. PO BOX 6315 EARltISBURG, PA 17112 by Mailing on 4/29/1999 TINAREED 1733 N. UNION ST. #E MIDDLETOWN, PA 17057 by Mailing on 4/29/1999 Dated:~ 4/29/1999 TINA M. REED IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY PENNSYLVANIA CIVIL ACTION - FAMILY DOUGLAS P. ~EED : Action No. 1996-20137 v. : ~ Petition for Contempt Counterclaim ORDER AND NOW, to wit, May 8, 2001, after hearing and in consideration of the testimony adduced, the findings of this Court are as follows: A. Plaintiff did not appear or present any information relative to the Motion for Contempt filed by Plaintiff which related to the alleged payment of $1,106.48 in satisfaction of Member's First Loan. B. Paragraph 9 of the parties Property Settlement Agreement provides that a 1971 Pontiac Ventura vehicle becomes the sole and exclusive property of the Defendant, Tina M. Reed. C. In mid January of 1999, the Plaintiff took possession of the Pontiac Ventura vehicle. D. Despite repeated requests, the Plaintiff failed to return the Pontiac Ventura to the Defendant. E. The Plaintiff indicated that he was retaining the vehicle because he claimed that the vehicle belonged to EXHIBIT "C" him. F. At the time the Plaintiff took possession of the Pontiac vehicle it did not work because there were problems pertaining to the clutch. G. The Defendant did not discover that the Pontiac vehicle was missing until several days after it had been parked in a nonoperating condition at her place of employment. H. Prior to the date on which the Defendant ascertained that the Pontiac vehicle was missing, she leased a Chevy Astro van from Carlin's Messenger Service. I. This Court does not find the Chevy Astro van to be a comparable vehicle to the Pontiac vehicle. J. This Court also finds that some of the relevant costs incurred by the Defendant would have necessarily been incurred even if the Plaintiff would not have taken possession of the Pontiac vehicle because the Pontiac was inoperable and in need of repairs. K. The Court estimates that had the Defendant obtained necessary repairs to the Pontiac vehicle she would have been deprived of the use of that vehicle as a result of Plaintiff's actions for a period of 80 days. L. The Court finds that a reasonable rental rate for a vehicle comparable to the Pontiac vehicle would be $17.50 per day. M. The Court finds that Defendant lost the sum of $1,400 by virtue of her inability to use the Pontiac vehicle for a period of 80 days following the Plaintiff's taking possession of that vehicle. N. Paragraph 13 of the parties Property Settlement Agreement provides for the payment of attorney's fees upon breach of the agreement by a party. O. The Court finds that the Plaintiff breached the Property Settlement Agreement by improperly taking possession of the Pontiac vehicle as outlined above. P. The Court finds that Defendant incurred $750 in attorney's fees as result of the breach by the Plaintiff. Accordingly, after consideration of all the facts and circumstances presented, including those mentioned above, the Order of this Court is as follows: 1. The Plaintiff's Motion for Contempt is respectfully refused. 2. The Defendant's Motion for Contempt is granted. The Plaintiff is directed to pay the sum of $2,150 to the Defendant within 90 days from today's date. CC: mlc BY THE COURT: BRADFORD H. CHARLES ,J. Peter B. Foster, EsquireM Kathy M. Shughart, Esquire ,,MARITAL SETTLEMENT AGREEMENT THIS AGREEMENT, ismadethis ~5~(0 dayof U~t/ .1997. by and between DOUGLAS P. REED. ~rXJew Cumberland. York County., Pennsylvama. hereinager referred to as "Husband" and TINA M. REED. of New Cumberland. York County., Pennsylvania. hereinafter referred to as "Wife." %'HEREAS. the parties were married on June 6. 1992: and ~v~EREAS. in consequence of disputes and unhappy differences, the parties have separated and are now and for some time have been living apart from each other and since their separation, have a~eed to live separately and apart during the rest of their lives: and WHEREAS. the parties desire to confirm their separation and make arrangements ~,, connection therewith, including the settlement of their prooerty rights and any other rights and obligations growing out of the marri~e relationship. IT IS THEREFORE AGREED by and between the parties that: t. CONSIDERATION. The consideration for this Agreement is the mutual promises and agreements herein contained. 2. .5-~EAIg~f.~. It shall be lawful for each party, at all times hereafter to live separate and apart from the other part-y at such place or places as he or she may from time to time choose or deem fit. " 3. NO INTERFERENCE, Each party shall be free from interference, authority and control, direct or indirect, by the other as fully as if he or she were single and unmarried. Neither shall molest the other, nor compel, nor enc~eavor to compel the other to cohabit or dwell with him or her. 4. DIVISION OF MARITAL AND PERSONAL PROPERTY. Other t ....... otherwise set forth !n this A~eement. the parties hereto ~gree that the marital property and personal property of the parties has been invaded to their mutual satisfaction. The parties agree that they shall retain all personal property, in their respective possession and EXHIBIT "D" waiYe all righus as to marital property and personal propeR' in the possession of the other soouse as of the da.'.e of the execution of this Agreement. 5. RELEASE OF .INTEREST IN SEPAR~a, TE ASSETS. The parties hereto a~ee to waive any and all right to claim any interest or share in the separate assets retained by the other spouse. This waiver and release specifically includes any interest in each other's pension, employee benefits, life insurance, business interests, and any and all other separate assets. 6. WAIVER OF CLAIMS AGAINST ESTATES AND MUTUAL RELEASE. Each party, may dispose of his or her property in any way and each party hereby waives and relinquishes any and all hght he or she may now have or may herealS.=r acquire, under the present or future laws of any jurisdiction, to share in the property or the estate of the other as a result of the marital relationship including, without limitation, dower, thirds, courtesy, allowance, widow's allowance, homestead rights, right to take in intestacy, right to rake against the will of the other, right to act as administrator/executor of the other s estate, and each parry will at the request of the other, execute, acknowledge and deliver any and all instruments which may be necessary or advisable to carry, into effect this mutual waiver and relinquishment of all such interests, rights and claims. The parties hereto have been informed of their rights or have been advised to seek counsel to inform them of their rights under and pursuant to the Divorce Code. particularly the provisions concerning alimony, alimony pendente }itc, equitable distribution of marital property, counsel fees or expenses. Both parties agree that this Agreement shall conclusively provide for the distribution of property under the said law and hereby waive, release and relinquish any further rights they may respectively have a_.qainst the other for alimony, alimony pendente lite, equitable distribution of marital property, counsel fees or expenses. Each of the parties hereto, for himself or herself, his or her executors. administrators, or assigns, does remise, release, quit claim and forever disck:..-ge the other party, hereto, his or her heirs, executors, administrators or assigns or any of them. of any and all claims, demands, damages, action ::x..'z '"--': ...... on. or suits at law'. or :'- equity, of any kind or narare, for or because of any matter or th/ng done, omitted or suffered to be done by said other part?' prior to and including the date hereof. 7. WAIVER OF PENSION .a~x/D OTHER EMPLO~"EE BENEFITS, The parties hereby waive any and all right to claim any interest or sha:'e in each other's pension or individual retirement accounts. The parties acknowledge that Husband has a 401K plan through his employer. Ransome Li~. 8. AFTER-ACOL;IRED PROPERTY. Each of the parties shall hereafter own and enjoy, independently of any claim or right of the other, ali items of property, be thel,' real. personal or mixed, tangible or intangible, which are hereafter acquired by him or her with full power in him or her to dispose of the same as fully and effectively, in all respects and for all purposes, as though he or she were un. married. 9. MOTOR VEHICLES. The parties a~ee that Wife shall become the sole owner of the 1991 Yamaha and the 1971 Pontiac Venmra. Wife agrees that she will hold Husband free and harmless from any and all liability, as a result of ownership of these vehicles. 10. ~II.F,,,$2~. The parties represent and warrant to each other that since separation, they have not incurred any debts or made any contracts, other than those listed herein, and in the future they will not incur any debts or make any contracts for which the other shall be held liable. Wife agrees to be solely liable for the loan at Member's First. loan number 14167. Said loan is currently in Husband's name. Nonetheless. Wife a~ees to assume responsibility for the payment of the unpaid balance, together with interest thereon, and hereby agees to hold Husband flee and harmless from any and all liability as a result of non-payment of the loan by her. Should Wife default and it becomes necessary for Husband to pay any amount as a result of her liabiliw, on the loan. Wife authorizes and empowers any Prothonotary, Clerk or Attorney of any Court of Record within the Un/ted Sta[ez ,;r elsewhere to-r~-Pe~-- ~?- ho~ 2nd wlth. or \\'ii,out aec;arauon, to comess iudc~mem_ at any time against her and in favor of Husband for the above sum plus interest thereon, with costs of suit and an attorney's commission of fifteen percent for collection. All of the foregoing promises are the joint and several promises of Wife and shall bind her, hej hei,'~, personal representatives, successors and assigns. 11. REPRESENTATION BY Co[.r!'qSEL. The parties acknowledge that both have sou~t or'have had the opportunity to seek independent legal counsel. The parties further acknowledge that Husband is represented by Kar? M. Shughart, Esqu/re and at no t/me has Wife been represented by Kathy M. Shughart. Esquire. Wife is not represented by Counse! but has had the oppormniD' to review this Agreement and consult with an attorney should she so desire. 12. DIVORCE. The parries hereto agree to enter into a mutual consent divorce. The parties agree to execute the Affidavits of Consent and other requisite documents necessary, to finalize the divorce. 13. BREACH. If either parry breaches an:,' provision of this Agreement, the other party, shall have the right, at his or her election, to sue for damages of such breach or seek such o:her remedies as may be available to him or her, and the party, breaching this Agreement shall be responsible for payment of legal fees and costs incurred by the other in enforcing their rights under this Agreement. 14. FINANCIAL DOCLrMENT DISCLOSURE. The parties waive their rights to require the filing of financial statements by the other, although they have been advised that it is their legal right to have such disclosures prior to entering into this Agreement. By executing this Agreement, the parties hereby acknowledge their satisfaction with the .. information presently available to them and agree not to use non-disclosure as a basis to overm."n this Agreement. 15. EXECUTION OF DOCUMEI~TS. Both parties here6y agree to execute any documents required to implement this Agreement. 16. ADDITIONAL INSTRITMENTS. Each of the parties shall, fi.om time to time. at the request of the other, execute, acknowledge, and deliver to the other any and all farmer instruments that may be reasonably required to give full force and effect to '~ne provisions of t2-fis Agreemem. 4 ] 7. SUBSEOUENT RECONCILIATION. The parties agree that the terms ot'th/s Agreement shall not be effected by their subsequent reconciliation or resumption of marital retatiot's unless the parties otherwise specifically agree in writing. 18. ENTIRE AGREEMENT. This Agreement contains the entire understanding of the parties and there are no representations, warranties, covenants or 'undenaldngs other than those expressly set forth herein. 19. MODIFICATION AND WAIVER. A modification or waiver of any of the provisions of this Agreement shall be effective only if made in writing and executed with the same formality, as this Agreement. The failure of either party, to insist upon str/ct performance of any of the provisions of this Agreement shall no't oe construed as a waiver of am' s::bseouent default of the same or similar nature. 20. PART!AL '"~" ' *~"? ~ .... -~,~,, Y. If any provisions of th_is Agreement are held to be invalid or unenforceable, all other provisions shall nevertheless continue in full force and effect. 21. VOLUNTARY EXECUTION. The parties hereby acknowledge that this Agreement is fair and equitable and that it is entered into freely and voluntarily, and that it is not the result of any duress or undue influence. 22. APPLICABLE LAW. This Agreement shall be construed in accordance 'c-ith the laws of the Con'. monwealth of Permsylvania. 23. BINDING EFFECT. Except as othem._- ..... ~ herein, alt provisions of this" AHeement shall be binding upon the respective heirs, executors, or administrators of the parties. IN WITNESS WHEREOF. the parties hereto have set their hands and seals the date and year first above written. WITNE32. Witness Wimess - - Douglas ~. Reed ~Reed 5 AC~NOWLEDGME,NT COMMONWEALTH OF PEN'NSYLVANIA COUNTY OF DAUPHIN 3:. :z:_. :he .'~. k--.-''~ - 6a~ or' '~",.'"~ :xQ . . 1997. before me. :h.e undersigned offiz:r, a Notary. PuNic in and .'bt said ,7.,,,nty ~nd State. personally appeared Tina M. Reed. known to me or satisfactorily proven to be the person whose name {s :,,bsc";bed to the within instrument. and acknowledged the above Marital Propen7 Settlement Agreement to be her voluntary, act and deed. IN WITNESS WHEREOF. I have hereunto set my hand and seal. No=ry Public %. k~' ~ I NOTARIAL SEAL ' I 16A, A ^. '" ~ Cum~da~ ~ro. C~ ~ J undersigned officer, a Notary. Public in and for said Count~ ,,,,d State, personally appeared Dou,,la~ P. Reed. known to me or satisfactorily proven to be the person whose name is subscribed to the within " instrument, and acknowledged the above Marital Settlement Agreement to be his voluntary act and deed. lan WITNESS WHEREOF, 'l have hereunto set my hand and seal. Notar>, Public ' ~ ' · ~. '~ NOTAR AL SE:,L BARBARA A. eUIGLEY, Nol~/'Public I Ne~ Cumbedan~ Boro. Cumberland Co. I',Ay Comm~m Expire Oct1, 2001 6 COMMONWEALTH OF PENNSYI,VANI~ COUNTY OF DAUPHIN DOUGLAS P. REED, Plaintiff V. TINA M. REED, Defendant : IN THE COURT OF COMMON PLEAS : LEBANON COUNTY, PENNSYLVANIA : : NO. 4984-S-1995 : : CIVIL ACTION - DIVORCE Decree in Divorce AND NOW, .. -~)-~(~x,.~'c ~\/2 ~Olqq ,19 . it is Ordered and Decreed that Plaintiff, Douglas P. Reed, and Defendant, Tina M. Reed, are divorced from the bonds of matrimony. The Marital Settlement Agreement dated November 26, 1997 shall be incorporated by reference into the Divorce Decree, but notwithstanding such incorporation, this Agreement shall not be merged in such Decree, but shall in all respects survive the same and be forever binding and conclusive upon the parties. BY THE, COURT, EXHIBIT "E" 7vP.' Certified Judge __, 199 7 VERIFICATION I, Tina Reed, hereby verify that the facts set forth in the foregoing Amended Petition to Open Judgement are tree and correct to the best of my knowledge, information and belief. I further understand that false statemems herein made are subject to the penalties of 18 Pa. C. S. Section 4904 relative to unswom falsification to authorities. June 29, 2002 c Tina Reed~' ? CERTIFICATE OF SERVICE I hereby certify that on this date, July 1, 2002, I served a copy of the forgoing Amended Petition to Open Judgement on the Pla/ntiff by ma/ling said copy by U.S. Mail at Harrisburg, PA to the Attorney for Plaintiff at the following address: Kathy M. Shughart, Esquire 27 South Arlene Street Harrisburg, PA 17112-0315 July 1, 2002 Peter B. Foster Attorney for Defendant DOUGLAS P. REED V. TrNA M. REED : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2002-2316 CIVIL TERM ORDER OF COURT_ AND NOW, this 9TM day of JULY, 2002, after review of Defendant's Petition to Open Confessed Judgment and Plaintiff's Answer thereto and after Review of Defendant's Amended Petition to Open Confessed Judgement, they are both DENIED. Kathy M. Shughart, Esquire For the Plaintiff - Peter B. Foster, Esquire For the Defendant :sld DOUGLAS P. REED, Plaimiff VS. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-2316 CIVIL TERM TINA M. REED, Defendant CONFESSION OF JUDGMENT NOTICE OF APPEAL Notice is hereby given that Defendant, Tina M. Reed, hereby appeals to the Superior Court of Pennsylvania from the Order entered in this matter on July 9, 2002, which is a Final Order. This Order has been entered in the docket as evidenced by the attached copy of the Docket Entries. July 24,2002 Peter B. Foster, Esquire Attorney for Defendant PINSKEY & FOSTER 121 South Street Harrisburg, PA 17101 Phone: (717) 234-9321 I.D. #15357 DOUGLAS P. REED, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA VS. NO. 02-2316 CIVIL TERM TINA M. REED, Defendant CONFESSION OF JUDGMENT STATEMENT OF RECORD The Request for Transcript contemplated by Pa. R. A. P. 1911 and required by Pa. R. A. P. 904 (c) need not be made as there have been no proceedings in open court in this case, which would have involved the taking of a transcript. Respectfully submitted, July 24,2002 Peter B. Foster, Esquire Attorney for Defendant PINSKEY & FOSTER 121 South Street Harrisburg, PA 17101 Phone: (717) 234-9321 Fax: (717) 234-7832 PYS510 2002-02316 REED DOUGLAS P (rs) REED TINA M Reference No..: · CONFESSION OF JUDGMENT ...... 1106.48 · p ·: ............ Case Comments ............. Cumberland County Prothonotary's office civil Case Inquiry Filed ........ : Time ......... : Execution Date Jury Trial .... Disposed Date. Higher Crt 1.: Higher Crt 2.: Page 1 5/10/3002 :21 0/o0/0000 0/00/0000 General Index Attorney Info REED DOUGLAS P pLAINITFF SHUGHART KATHY M 113 POPLAR RD NEW CUMBERLAND PA REED TINA M DEFENDANT 634 HUMMEL AVE LEMOYNE PA Judgment Index Amount Date Desc REED TINA M 1,106.48 5/10/2002 CONFESSION OF JUDG , Entries .... FIRST ENTRY ..... 5/10/2002 ~O~F~S~I6N-O~ 3U~GMENT AND COMPLAINT ENTERED ...................... 5/10/2002 ~-~L~6-~-DEFENDANT .................................. .......... ~---6~6-~2~-82 - IN RE DEFTS PETITION TO OPEN RULE TO SHOW - CAUSE WHY SAID 5/28/2002 JUDGMENT A RULE IS ISSUED UPON ~LFF TO SHOW GMENT SHOULD NOT BE OPENED - RULE RETURNABLE 20 DAYS AFTER JUD .......... mnWARD E GUIDO J COPIES MAILED 5/28/02 SERVICE - BY Tn~ ~uum~ =~ ........................ 6/19/2002 ~~'S ANSWER TO DEFENDANT'S PETITION TO OPEN JUDGMENT BY KATHY M SHUGHART ESQ ............................ .......... ~-~-~-82 - AFTER REVIEW OF DEFT S PETITION TO 7/09/2002 ORDER OF COURT Lp~u~/~n DLWW'S SWER THERTO AND AFTER REVIEW OPEN CONFESSED ~UD~,- ........... AN PETITION TO OPEN CONFESSED JUDGMENT THEY ARE OF DEFT S AMENplD ......... E GUIDO COPIES ILED 7/9/02 ~O~H_D~N~E~ [ ~Y_T~_~?u~z_=~DENTRY .............. Escrow Information , * Fees & Debits Be~ Bal p~,ts/Adj End Bal JDMT/CONFESSION 9.00 9.00 .00 .50 .50 .00 TAX ON CONFESS 5.00 5.00 .00 SATISFACTION [88- 14.50 '14.50 End of Case Information 0T/24/02 ~iED 10:20 FA/ ?IT 240 $$?$ CUMB CO PROTHONOTARY ~002 DOUGLAS P. REED V. TrNA M. REED : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO, 20~2-2316 CIVIL TERM AND NOW, this 9TM day oF JULY, 2002, after review of Defendant's Petition to Open Confessed ~udgrnent and Plaintifl*s Answer thereto and ait:r Review of Defendant's Amcnded Petition to Open Confessed Judgement, they am both DE~. Kathy M. Shughart, Esquire For the Plaintiff Peter B. Foster, Esquire .~- For the Defendant :sld DOUGLAS P. REED, Plaintiff VS. TINA M. REED, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-2316 CIVIL TERM CONFESSION OF JUDGMENT CERTIFICATE OF SERVICE I hereby certify that on this date, July 24, 2002, I served a copy of the forgoing Notice of Appeal on the following individuals by mailing said copies by first class mail, postage prepaid, at Harrisburg, PA to the following individuals at the following addresses: The Honorable Edward E. Guido Judge, Court of Common Pleas Cumberland County Courthouse Carlisle, PA 17013 Kathy M. Shughart, Esquire P.O. Box 6315 Harrisburg, PA 17112-0315 July24,2002 Peter B. Foster Attorney for Defendant I.D. # 15357 DOUGLAS p. REED V. TINA M. REED : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY,PENNSYLVANIA ; .. · NO. 2002-2316 CIVIL TERM ORDER OF COURT AND NOW, this 26TM day of JULY, 2002, Counsel for the Defendant is directed to file a concise statement of matters complained of on appeal within fourteen (14) days of todays date in accordance with Rule of Appellate Procedure 1925(b). District Attorney ~ Peter B. Foster, Esquire 121 South Street Harrisburg, Pa. 17101 :sld Edward E. Guido, J. DOUGLAS P. REED V. TINA M. REED : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA . : NO. 2002-2316 CIVIL TERM IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925 Guido, J., AUGUST 3~ ,2002 Plaintiff confessed judgment against defendant by complaint filed on May 10, 2002. Defendant timely filed a petition to open the judgment. We issued a rule upon plaintiff to show cause why the judgment should not be opened. Plaintiff filed an answer after which defendant filed an amended petition to open. On July 9, 2002, we denied the defendant's request to open the judgment. This appeal followed. The Pennsylvania Rules of Civil Procedure set forth the mandatory procedures to be followed in connection with the opening of a confessed judgment. See Magee v. J. G. Wentworth Company, Inc., 761 A.2d 159 (Pa. Super. 2000). Rule 2959 provides in relevant part as follows: (a)(1) Relief from a judgment by confession shall be sought by petition. (A)II grounds for relief whether to strike off the judgment or to open it must be asserted in a single petition. (b) If the petition states prima facie grounds for relief the court shall issue a rule to show cause and may grant a stay of proceedings. After being served with a copy of the petition the plaintiff shall file an answer on or before the return day of the rule. (c) A party waives all defenses and objections which are not included in the petition or answer. (e) The court shall dispose of the role on petition and answer, and on any testimony, deposition, admissions and other evidence. If evidence is produced which in a jury trial would require the issues to be submitted to the jury the court shall open the judgment. 2002-2316 CIVIL Our appellate courts have set forth the standard to be employed in detemfining whether to open a confessed judgment. As the Superior Court noted: Traditionally, a confessed judgment will be opened in only a limited number of circumstances, and only when the person seeking to open acts promptly, alleges a meritorious defense and presents sufficient evidence of that defense to require submission of the issues to the jury. In making such a determination, the court employs the same standard as that of the directed verdict--"viewing all the evidence in the light most favorable to the petitioner and accepting as true all evidence and proper inferences therefrom supporting the defense while rejecting adverse allegations of the party obtaining the judgment." Rule 2959 (e) of the Pennsylvania Rules of Civil Procedure provides that "in a proceeding to open a confessed judgment, if evidence is produced which, in a jury trial, would require the issues to be submitted to the jury, the court shall open the judgment." Pa.R.C.P. 2959 (e) has been interpreted to require the judgment debtor to offer clear, direct, precise and "believable" evidence of its meritorious defense. (citations omitted) Iron Worker's Savings and Loan v. IWS, Inc., 424 Pa. Super. 255, 622 A.2d 367, 370, (1993). Applying the above law to the case before us, we determined that appellant's petition to open should be denied. The facts of this case may be summarized as follows. The parties were divorced by a decree entered in the Court of Common Pleas of Lebanon County on December 16, 19977 The decree incorporated a marital settlement agreement dated November 26, 1997.2 Paragraph 10 of the agreement provided as follows: Wife agrees to be solely liable for the loan at Member's First, loan number 14167. Said loan is currently in Husband's name. Nonetheless, Wife agrees to assume responsibility for the payment of the unpaid balance, together with interest thereon, and hereby agrees to hold Husband free and harmless fi.om any and all liability as a result of non-payment of the loan by her. Should Wife default and it becomes necessary for Husband to pay any amount as a result of her liability on the loan, Wife authorizes and empowers any Prothonotary, Clerk or Attorney of any Court of Record within the United States or elsewhere to appear for her and with or without Petition to Open Exhibit E. Petition to Open Exhibit E. 2002-2316 CIVIL declaration, to confess judgment at any time against her and in favor of Husband for the above sum plus interest thereon, with costs of suit and an attorney's commission of fifteen percent for collection.3 Defendant defaulted on the Member's First Loan and plaintiff was required to pay the balance in full.4 As a result of defendant's default, plaintiff filed a petition for contempt in the Court of Common Pleas of Lebanon County.5 In May of 2001, the Honorable Bradford Charles scheduled a hearing in connection with plaintiff's petition as well as a separate contempt petition which had been filed by defendant. The relevant portion of the Court's order provided as follows: ORDER AND NOW, to wit, May 8, 2001, after hearing and in consideration of the testimony adduced, the findings of this Court are as follows: A. Plaintiff did not appear or present any information relative to the Motion for Contempt filed by Plaintiff which related to the alleged payment of $1,106.48 in satisfaction of Member's First Loan. O. The Court finds that the Plaintiff breached the Property Settlement Agreement by improperly taking possession of the Pontiac vehicle as outlined above. Accordingly, after consideration of all the facts and circumstances presented, including those mentioned above, the Order of this Court is as follows: 1. The Plaintiff's Motion for Contempt is respectfully refused. 3 Petition to Open Exhibit D. 4 Complaint paragraphs 9-10, and Exhibit B. We note that defendant did not dispute these allegations in her petition to open judgment. While her amended petition contained an allegation that the loan was not in default at the time it was paid by plaintiff, the allegation was not accompanied by any supporting documentation to counter the default notice and payment receipt attached as Exhibit B to the complaint. Therefore, we did not feel that the allegation amounted to "clear, direct, precise and believable evidence of (a) meritorious defense." Iron Worker's, supra. However, there was an even more fundamental reason for us discounting plaintiff's "meritorious defense", i.e., it was not raised in her original petition and was, therefore, waived. See Pa.R.A.P. 2959(a)(1) and (c). ~ Petition to Open Exhibit "B". 2002-2316 CIVIL 2. The Defendant's Motion for Contempt is granted. The Plaintiff is directed to pay the sum of $2,150 to the Defendant within 90 days from today's date. The defendant advanced two arguments in support of her petition to open. In the first instance, she contended that Judge Charles' Order of May 8, 2001, operated as res judicata in connection with the issue of the Member's First Loan. In addition, she argued that plaintiffs' action to confess judgment should have been filed in Lebanon County, where the divorce decree was entered, rather than Cumberland County. We did not agree with either contention. If it is applicable, the doctrine of resjudicata precludes the litigation "of claims and issues that have previously been litigated." Chada v. Chada, 756 A.2d 39, 42 (Pa. Super. 2000). To be applicable, there must, at the very least, be a "final judgment on the merits." Id. In the instant case, Judge Charles' order was not such a judgment. He never addressed the merits. He simply dismissed the contempt petition as a result of the plaintiff's failure to appear or to present any evidence on the issue. In effect, the action was dismissed because of plaintiff's failure to prosecute. "Since a judgment of non pros is not a judgment on the merits, it cannot have resjudicata effect." Hatchigian v. Koch, 381 Pa. Super. 377, 381 553 A.2d 1018, 1020 (1989). Defendant next argued that the "proper forum for raising the issue of the Member's First payment" should be Lebanon County.6 This contention is based upon the fact that the "Marital Settlement Agreement was incorporated into the parties' Divorce Decree in Lebanon County'? However, the agreement specifically allows the confession Petition to Open, paragraph 5B (iii). Petition to Open, paragraph 5B (ii). 2002-2316 CIVIL of judgment to be entered in "any Court of Record within the United States or elsewhere? Since the defendant lives in Cumberland County, it is only logical that plaintiffwould institute the confession of judgment proceedings in this county. This is clearly authorized by the parties' agreement. In view of the above, we were satisfied that defendant's petition did not raise sufficient grounds to justify the opening of the confessed judgment. Therefore, we denied it. ~ DATE Edward E. Guido, J. gt/3 t/lo t~Foathy M. Shughart, Esquire r the Plaintiff ~Feter B. Foster, Esquire or the Defendant :sld Petition to Open, Exhibit D, paragraph 10.