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HomeMy WebLinkAbout94-00189 /' ~ , d 3 L. <V j J ~ , , , \ , i l ) / i j 1 -::1-1 0- cr- - Kiaberley K. Wagner, Plaintiff IN THE COURT OF COMMON PLEAS OF . . CUMBERLAlD COUNTY, PENNSYLVANIA CIVIL ACTION - LAW . . NO. /gq CIVIL 1994 v. . . Kerry A. Wagner, Jr., Defendant : PROTECTION FROM ABUSE : AND CUSTODY AND NOW, this TEMPORARY PROTECTIVE ORDER I 4- u., day of January, 1994, upon presentation and consideration of the within Petition, and upon finding that the plaintiff, Kimberley K. Wagner, now residing at 232 Herman Avenue, Leaoyne, CUmberland County, Pennsylvania, is in immediate and present danger of abuse froa the defendant, Kerry A. Wagner, Jr., the following Temporary Order is entered. The defendant, Kerry A. Wagner, Jr., now residing at 104 S. Second Street, Woraleysburg, Cumberland County, Pennsylvania, is hereby enjoined from physically abusing the plaintiff, Kimberley K. Wagner, or placing her in fear of abuse and is excluded from the residence located at 232 Herman Avenue, Lemoyne, Cumberland County, Pennsylvania, a residence which the defendant voluntarily left in November 1993. The defendant is hereby notified that if he resides in the plaintiff's domicile contrary to this Order, he may be in indirect criminal contempt which is punishable by a fine not to exceed $1,000.00 and/or by a sentence of up to six months in jail and any other appropriate punishment. Resumption of co-residence on the part of the plaintiff and the defendant shall not nullify the provisions of the court order directing the defendant to refrain from abusing the plaintiff. Temporary custody of Kody Lee and Korey Paul Wagner is hereby awarded to the plaintiff, Kimberley K. Wagner. The defendant is ordered to refrain from having any contact with the plaintiff except to facilitate custody of the ainor children. The defendant is ordered to refrain from entering the plaintiff's place of employment, fro. stalking the plaintiff, or fro. harassing the plaintiff or her relatives. case. A hearing shall be held on thia .atter on the order is entered in this u.. IC\ day of January, This Order shall remain in effect until a final 1994, at ,) 'jr., e .m. in Courtroom No....::1-, Cumberland County Courthouse, Carlisle, Pennsylvania. The plaintiff may proceed in ~ pauperis pending a further order after the hearing. The Cumberland County Sheriff's office shall attempt to make service at the plaintiff's request, but service may be accomplished under any applicable rule of Civil Procedure. The Lemoyne Police Department will be provided with a copy of this Order by attorneys for plaintiff. This Order shall be enforced by any law enforcement agency when a violation occurs by arrest for indirect criminal contempt. The arrest may be without warrant upon probable cause that this Order has been violated, whether or not the violation is committed in the presence of the police officer. In the event that an arrest is made under this section, the defendant shall be taken without unnecessary delay before the court that issued the Order. When that court is unavailable, the defendant shall be arraigned before the appropriate district justice. (23 Pa.C.S.A. Section 6113). J. Ki.berley K. Wagner, Plaintiff IN THE COURT OF COlMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW NO. I 8 (/ CIVIL 1994 . . Kerry A. Wagner, Jr., Defendant : PROTECTION PROM ABUSE : AND CUSTODY NOTICE You have been sued in court. IC you wish to defend against the claias set forth in the Collowing pages, you aust take action proaptly after this Petition, Order and Notice are served, by appearing personally or by attorney at the hearing scheduled by the Court and presenting to the Court your defenses or objections to the claims set forth against you. You are warned that iC you fail to do so the Court aay proceed without you, and a judgaent aay be entered against you by the Court without further notice for any aoney claiaed in the Petition or Cor any other claim or relieC requested by the plaintiff. You may lose money or property or other rights iaportant to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT RAVE A LAIfYKR OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN Gi\T LEGAL HELP. COURT AD~llNISTRATOR, 4TH FLOOR CUMBERLAND COUNTY COURTHOUSE CARLISLE, PENNSYLVANIA 17013 TELEPlIONll NUMBER: (717) 240-6200 Ki.berley K. Wagner, Plaintiff : I N TIlE COURT OF COMMON PLEAS OF . . CUMBIlRLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW . . NO. J tit"( CIVIL 1994 v. . . Kerry A. Wagner, Jr., Defendant : PROTECTION FROM ABUSE AND CUSTODY . . PETITION FOR PROTECTIVE ORDIlR AND CUSTODY RELIEF UNDER THE PROTECTION FROM ABUSE ACT. 23 Pa. C.S.A. Section 6101 et. sea. A. ABUSE 1. The plaintiff is an adult individual whose permanent address is 232 Herman Avenue, Lemoyne, Cumberland County, Pennsylvania, 17043. 2. The defendant is an adult individual residing at 104 S. Second Street, Wormleysburg, Cumberland County, Pennsylvania, 17043. 3. The defendant is the plaintiff's husband. 4. Since approximately 1984, the defendant has attempted to cause and has intentionally, knowingly, or recklessly caused bodily injury to the plaintiff and by physical menace has placed the plaintiff in fear of i..inent serious bodily injury. This has included but is not limited to the following specific instances of abuse: a. On or about January 8, 1994, the defendant came to the plaintiff's residence and pounded on the windows breaking the glass. He yelled at the plaintiff to come help him because he had cut his hands. When she opened the door, she saw that he had not cut his hands. This caused her to fear for her safety, flee the residence, and call the police. When the police responded, they made the defendant leave the residence. b. On or about November 2, 1993, the defendant yelled, grabbed the plaintiff by her neck from behind, and pushed her onto a couch. When the children woke up crying because they heard the defendant yelling and the plaintiff went to the children's bedroom to calm them down, the defendant came into the children's bedroom and put his pistol onto the children's dresser. While the plaintiff was holding her youngest child, the defendant kicked a towel rack on the child's bed causing the child to cry. The defendant then grabbed the gun, shoved it into the plaintiff's cheek while she was holding her 1-1/2 year old son, and threatened to kill her. The defendant then took the gun and left the residence to go to work. The plaintiff called the police and they went to his work to talk to him. The defendant then sold his pistol to his stepmother. c. Since 1984, the defendant has on several different occasions choked, punched, shoved, and grabbed the plaintiff causing bruises. On one occasion, the defendant punched the plaintiff in the nose breaking her nose and csusing her to have an operation. On another occasion when the parties were separated, the defendant came to her residence in the middle of the night and broke down her front door causing the plaintiff to fear for her safety. Since the parties have separated in November 1993, the defendant has repeatedly called and harassed the plaintiff at home and at work threatening that he'11 be watching her which causes her to fear for her safety. 5. The plaintiff believes and therefore avers that she will be in immediate and present danger of abuse from the defendant should she remain in the home without defendant's exclusion and that she is in need of protection from such abuse. 6. The plaintiff desires that the defendant be ordered to refrain from having any contact with her except to facilitate custody of the minor children. 7. The plaintiff desires that the defendant be ordered to refrain from entering her place of employment, from stalking the plaintiff, and from harassing the plaintiff or her relatives. B. TEMPORARY CUSTODY B. The plaintiff seeks temporary custody of the following children: Name Present Residence W Kody Lee Wagner 232 Herman Avenue 2 yrs. old Lemoyne, PA DOB 6/21/91 Korey Paul Wagner 232 Herman Avenue 1 yr. old Lemoyne, PA DOB 7/24/92 The children were not born out of wedlock. The children are presently in the custody of the plaintiff who resides at 232 Herman Avenue, Lemoyne, Pennsylvania. During the children's lifetime, the children have resided with the following persons and at the following addresses: ffAM Addresses ~ Plaintiff, defendant, 744 State St. 6/21191 to Kenneth Szwalkiewicz Lemoyne, PA 3/92 (plaintiff's child) Plaintiff, defendant, 232 Herman Ave. 3/92 to Kenneth Szwalkiewicz Lemoyne, PA 11/93 Plaintiff, Kenneth 232 Herman Ave. 11/93 to L. Szwalkiewicz Lemoyne, PA present The mother of the children ia the plaintiff, Kimberley K. Wagner, currently residing at 232 Herman Avenue, Lemoyne, Pennsylvania. The plaintiff currently resides with the Collowing persons: fuw Kenneth Szwalkiewicz Kody Lee Wagner Korey Paul Wagner RelatlonshiD Son Son Son She is married. The father of the children is the defendant, Kerry A. Wagner, Jr., currently residing at 104 S. Second Street I Wormleysburg, Pennsylvania. The defendant currently resides with the following persons: HMw RelationshiD Kerry A. Wagner, Sr. Mary Wagner Father Mother He is married. 9. The plaintiff has not previously participated in any litigation concerning custody of the above mentioned children in this or any other Court. 10. The plaintiff has no knowledge of any custody proceedings concerning these children pending before a court in this or any other jurisdiction. 11. The plaintiff does not know of any person not a party to this action who has physical custody of the children or claims to have custody or visitation rights with respect to the children. 12. The best interests and permanent welfare of the children will be met if custody is temporarily granted to the plaintiff pending a hearing in this matter for reasons including the following: a. The plaintiff is a fit parent who can best take care of her children. b. The defendant has shown by his abuse of the plaintiff that he is not an appropriate role model for the children. C. EXCLUSIVE POSSESSION 13. The home which the plaintiff is asking the Court to exclude the defendant from is rented in the names of Kimberley and Kerry Wagner, 'Jr., but the defendant voluntarily moved to another residence in Nove.bp.~ 1993. 14. The defendant is currentiy residing with his parents at 104 S. Second Street, Wormleysburg, Pennsylvania. 15. The plaintiff desires possession of the home so as to give the greatest degree of continuity to lives of the children and to allow her oldest child, Kenneth Szwalkiewicz, to continue his education at his school and to continue his school and social activities. D. ATTORNEY PEES 16. The plaintiff asks that the defendant be ordered to pay reasonable attorney fees. E. STATUS TO PROCEED IN FORMA PAUPERIS 17. The defendant is employed at Luff Lawn and Garden and has a gross monthly salary of approximately $1476.00. 18. The plaintiff is employed at State Treasury Department and has a gross monthly salary of approximateiy $1738.00 pIus $100.00 per week in support to pay for childcare. 19. The plaintiff does not have funds available to pay the fees for filing and aervice. WHEREFORE, pursuant to the provisions of the "Protection froll Abuse Act" of October 7, 1976, 23 Pa.C.S.A. Section 6101 et seo., as BIIended, the plaintiff prays this Honorable Court to grant the following relief: A. Grant a Temporary Order pursuant to the "Protection froll Abuse Act": 1. Requiring the defendant to refrain from abusing the plaintiff or placing her in fear of abuse. 2. Requiring the defendant to refrain froll having any contact with the plaintiff including, but not limited to, restraining the defendant frail entering the plaintiff's place of employment, from stalking the plaintiff, and from harassing the plaintiff or her relatives. 3. Granting temporary custody of the minor children to the plaintiff. 4. Granting possession of the hoae located at 232 Herman Avenue, Lemoyne, Pennsylvania, to the plaintiff to the exclusion of the defendant pending a final order in this matter. 5. Ordering the defendant to stay away from any residence the plaintiff may in the Cuture establish for herselC. B. Schedule a hearing in accordance with the provisions oC the "Protection Crom Abuse Act," and, after such hearing, enter an order to be in effect for a period of one year: 1. Requiring the deCendant to reCrain fro. abusing the plaintiCf or placing her in fear oC abuse. 2. Requiring the defendant to reCrain Cro. having any contact with the plaintiCf including, but not li.ited to, restraining the deCendant Crom entering the plaintiCf's place oC employment, from stalking the plaintiCf, and from harassing the plaintiCC or her relatives. 3. Granting possession of the home located at 232 Herman Avenue, Lemoyne, Pennsylvania, to the plaintiff to the exclusion oC the defendant. 4. Ordering the defendant to stay away from any residence the plaintiff may in the future establish for herself. 5. Ordering the defendant to pay reasonable attorney fees. The plaintiff further asks that this Petition be filed and served without payment of costs, pending a further order at the hearing, and that a copy of this Petition and Order be delivered to the Leaoyne Police Departaent ~i~ ' , an car~ y Attorney for Plaintiff LEGAL SERVICES, INC. a Irvine Row Carlisle, PA 17013 (717) 243-9400 as the Police Department with jurisdiction to enforce this Order. The plaintiff prays for such other relief as .ay be just and proper. Respectfully submitted, The above-na.ed plaintiff, Ki.berley K. Wagner, verifies that the state.ents .ade in the above Petition are true and correct. The plaintiff understands that false state.ents herein are .ade subject to the penalties of 18 Pa, C. S. Section 4904 relating to unsworn falsification to authorities. Date: 1//3/N . laintiff -:r -- '.' ..1... , .' ~ o ... 3i .-I ':> Q") ,..- <,J:;.._ .. '" f ~-":J'" ul,~ .,:;; !.) ~_.o; ~ ~.l f~~:';-.l \"j ~~ -:r C7'> ,I.... '" <j ,... ... --. ,.. . '.(..... '" Kimberley K. Wagner, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. : CIVIL 1994 NO. 189 Kerry A. Wagner, Jr., Defendant : PROTECTION FROM ABUSE : AND CUSTODY PROTECTIVE ORDER AND NOW. this ~daY of January, 1994. upon consideration of the Consent Agreement of the parties, the following Order is entered: 1. The defendant. Kerry A. Wagner, Jr., is enjoined from physically abusing the plaintiff, Kimberley K. Wagner, or from placing her in fear abuse. 2. The defendant. Kerry A. Wagner, Jr., is hereby excluded from the premises located at 232 Herman Avenue, Lemoyne, Pennsylvania. The defendant is hereby notified that if he resides in the plaintiff's domicile contrary to this Order, he may be in indirect criminal contempt which is punishable by a fine not to exceed $1,000 and/or by a sentence of up to six months in jail and any other appropriate punishment. Resumption of co-residence on the part of the plaintiff and defendant shall not nUllify the provisions of the court order directing the defendant to refrain from abusing the plaintiff. 3. The defendant is ordered to refrain from having any contact with the plaintiff including, but not limited to, entering the plaintiff's place of employment. 4. The defendant is ordered to refrain from stalking the plaintiff and from harassing the plaintiff or her relatives. 5. This Order shall remain in effect for a period of one year. 6. The Lemoyne Police Department will be provided with a copy of this Order by attorneys for plaintiff. This Order shall be enforced by any law enforcement agency when a violation occurs by arrest for indirect criminal contempt. The arrest may be without warrant upon probable cause that this Order has been violated, whether or not the violation is committed in the presence of the police officer. In the event that an arrest is made under this section, the defendant shall be taken without unnecessary delay before the court that issued the Order. When that court is unavailable, the defendant the appropriate district J. J~H Ztl 2 06 PH '9~ . '~~c t U ' , .: V,~TA~Y C U;., r ~:.;:: !. .',j :j /: '; :.'r y ;-r>.:.:~{ ~),,\.,1. ,~ .. Kimberley K. Wagner, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW vs. : : NO. 189 CIVIL 1994 Kerry A. Wagner, Jr., Defendant PROTECTION FROM ABUSE : AND CUSTODY CUSTODY ORDER ,-- AND NOW, this ~S day of January, 1994, upon consideration of the parties' Consent Agreement, the following Order is entered with regard to custody of the parties' children, Kody Lee and Korey Paul Wagner. 1. The plaintiff, hereinafter referred to as the mother, will have primary physical and legal custody of the children. 2. The defendant, hereinafter referred to as the father, will have partial custody of the children every Wednesday from the time the father picks the child up from the sitter's at approximately 4:30 p.m. until 8:00 p.m. and every Sunday from 10:00 a.m. until 8:00 p.m. 3. The mother and father, by mutual agreement, may vary from this schedule at any time. 4. Each parent will notify the other immediately of medical emergencies which arise while the children are in that parent's care. 5. Neither parent shall do anything which may estrange the children from the other parent, or injure the opinion of the children as to the other parent or which may hamper the free and natural development of the children's love or respect for the other parent. J~H Z5 10 57 4H '9~ "iirf'CE 0i ;, " >:o,,'~ i',:r.y CVl ", ..~~;o \>':J,l([y i'i' \!'1 ~, '.'r.1,!.", Kimberley K. Wagner, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW vs. : : NO. 189 CIVIL 1994 : Kerry A. Wagner, Jr., Defendant : PROTECTION FROM ABUSE AND CUSTODY CONSENT AGREEMENT t1 This Agreement is entered on this ~~ day of January, 1994, by the plaintiff, Kimberley K. Wagner, and the defendant, Kerry A. Wagner, Jr. The plaintiff is represented by Joan Carey of Legal Services, Inc.; the defendant is unrepresented but is aware of his right to have an attorney. The parties agree that the following may be entered as an Order of Court. 1. The defendant, Kerry A. Wagner, Jr., agrees to refrain from abusing the plaintiff, Kimberley K. Wagner, or from placing her in fear of abuse. 2. The defendant agrees to refrain from having any contact with the plaintiff, including but not limited to, entering the plaintiff's place of employment. 3. The defendant agrees not to stalk or harass the plaintiff or her relatives. 4. The defendant agrees to stay away from the residence located at 232 Herman Avenue, Lemoyne, Pennsylvania. 5. The defendant agrees to stay away from any residence the plaintiff may establish for herself in the future. 6. The defendant, although entering into this Agreement, does not admit the allegations made in the Petition. 7. The defendant understands that the Protective Order entered in this matter shall be in effect for a period of one year. 8. The defendant understands that this Order will be enforceable in the same manner as the Court's prior Temporary Protective Order entered in this case. 9. The defendant and the plaintiff agree to the entry of a Custody Order regarding their children, Kody Lee and Korey Paul Wagner, providing the following: a. The mother will have primary physical and legal custody of the children. b. The father will have partial custody of the children every Wednesday from the time the father picks the child up from the sitter's at approximately 4:30 p.m. until 8:00 p.m. and every Sunday from 10:00 a.m. until 8:00 p.m. c. The mother and father, by mutual agreement, may vary from this schedule at any time but the Order shall remain in effect until either party petitions to have it changed. d. Each parent agrees to notify the other immediately of medical emergencies which arise while the children are in that parent's care. e. The parents realize that their children's well being is paramount to any differences they might have between themselves. Therefore, they agree that neither parent will do anything which may estrange the children from the other parent, or injure the opinion of the children as to the other parent or which may hamper the free and natural development of the children's love or respect for the other parent. WHEREFORE, the parties request that the Orders of Court be entered to reflect the above terms. -K/.NyL..vJ.Llt ( )n~ p" Kimberley K. agner ~ Plaintiff ~d~^~~\- Kerry PI; Wagner, Jr. ,..- Defendant ~,[!~ ' Attorney for Plaintiff LEGAL SERVICES, INC. 8 Irvine Row Carlisle, PA 17013 (717) 243-9400 . CG1MONWEAL1'H OF PENNSYLVANIA: COUNTY OF ClMBERLAND SHERIFF'S RETURN In The Court of Common Pleas of Cumberland County, Pennsylvania No. 189 Civil Term 1994 , Temporary Protective Order Protection From Abuse and Custody Notice and Petition for Protective Order Kimberley K. Wagner VS Kerry A. Wagner, Jr. HArrv Kina , ~ilWlXlSr Deputy Sheriff of Cunberland County, Pennsylvania, who being duly sworn according to law, says, that he served the within TpmpnrRry Prn~p,,~; VP Ornpr Prn~p"i'; nn PrnlTl Abuse and Custody, Notice & Petition for Protective Order upon Kprry A. WRgnpr. ,lr. , the defendant, at 11'1<; o'clock A. .M. EST / ~ on the .1RntlRry , 19.9A.at day of 14 16i'h & S~Atp Strpp~. Lpmnynp , Cunberland County, Pennsylvania, by handing to Kprry A. WAgner. .lr. a true and attested copy of the TemoorAry Protective Order Protection Frnlll Abuse and Custody, Notice, Petition for Protective Order and at the same tUne directing his attention to the contents thereof and the "Notice to Plead" endorsed thereon. Sheriff's Costs: Docketing Service Affidavit Surcharge 14.00 8.96 So answers: rO,r' . ~/fi?' .- -J"r.' ..... ~.~ ,,".' . ....- .. -.-. ".. ../. ,--" . , , .' . . -. "'-"'1:; 2.00 24.96 R. Thanas Kline, Sheriff by ;1 ~ c-l-~ , DePu/G'Sh~r' .' Sworn and subscribed to before rre Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 189 Civil 1994 Kimberlev K. Wa~ner. vs. Protection From Abuse & CustodY Kerry A. Wa~ner. Jr.. Defendant PRAECIPE TO WITHDRAW ACTION On January 14. 1994. the olaintiff filed a Petition for a TemDOrary Protective Order. an Order was entered on that date. On January 24. 1994. after the Darties si~ned a Consent A~reement a final Protective Order was entered. At this time. the olaintiff reQuests that the Protective Order be vacated and that no further le~al action be oursued by counsel. To Lawrence E. Welker Prothonotary Philip C. Briganti, Attorney for Plaint ff No. 189 C1v1l Tenn, 19 94 K1mberlev K. WaQner Pla1nt1ff VS. Kerrv A. WaQner. Jr. . Defendant P RAE C I P E F1led 19 94 Ph1l1D C. 8r1Qant1 , Atty. LEGAL SERVICES. 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