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IN THE COURT OF COMMON PLEAS
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ANNA M. ZINOBILE
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P. JOSEPH ZINOBILE
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DECREE IN
DIVORCE
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ANI) NOW, ' <!, ~..~-.~.. ~.~..?,~!.. " 19.'1. .~~it is ordered and
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ore nivorced from the bonds of matrimony,
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The court retoins jurisdiction of the following claims which have
been raised of record in this action for which a final order has not yet
been entered;
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ANDF~REN .
ATTORNlYB' AT LAW
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PENNBVLVANIA..I,710S.IB47
ANNA M. ZINOBILE,
plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 1255-Civil-1994
v.
P. JOSEPH ZINOBILE,
Defendant
CIVIL ACTION - LAW
IN DIVORCE
PRAECIPE TO TRANSMIT RECORD
TO THE PROTHONOTARY:
Transmit the record, together with the following information,
to the Court for entry of Divorce Decree:
1. Ground for Divorce: Irretrievable breakdown under Section
3301(c) of the Divorce Code.
2. Date and Manner of Service of Complaint: Service was
accepted by the Defendant on the 18th day of March 1994, pursuant
to an Acceptance of Service which was filed March 25, 1994.
3. Date of Execution of the Affidavit of Consent Required by
Section 3301(C) of the Divorce Code: by Anna M. Zinobile,
plaintiff, on September 15, 1995; by P. Joseph Zinobile, Defendant,
on September 27, 1995.
4, Related Claims Pending: None.
5. Date and manner of service of the notice of intention to
file praecipe to transmit record, a copy of which is attached, if
the decree is to be entered under section 3301(d) (1) (i) of the
Divorce Code:
Respectfully submitted,
CLECKNER AND FEAREN
Date: CJ('.i!Jlwvk1,IQQ{
By:4tlIH111~ J a .1.k.a..._
Jennifer L. Lehman, Esquire
Attorney I.D, #52784
31 North Second Street
Harrisburg, PA 17101
(717) 238-1731
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ANNA M. ZINOBILE,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 1255-CIVIL-1994
CIVIL ACTION - LAW
IN DIVORCE
P. JOSEPH ZINOBILE,
Defendant
PRAECIPE POR WITHDRAWAL OP CLAIMS
TO THE PROTHONOTARY:
Kindly withdraw Counts II through V of the Plaintiff's
Complaint in Divorce. All claims have been resolved by a Property
Settlp.ment Agreement dated September 15, 1995.
Respectfully submitted,
CLECKNER AND FEAREN
BY:~'/(/I!< J;.( )C1 JJvr"..o/f,,)
Je ifer'L. Lehman, Esquire
Attorney I.D. #52784
31 North Second Street
Harrisburg, PA 17101
(717) 238-1731
Date: OciDIu.<",? ,QQ5
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CLECKNER AND FEAR EN .
ATTORNEYS JIlT LAW
II HOftTH alceNO .T"laT
HARRISBURG, PENNSYLVANIA 17101
.
vs.
: NO.
-CIVIL-1994
ANNA M. ZINOBILE,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
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.
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P. JOSEPH ZINOBILE,
Defendant
: CIVIL ACTION - LAW
: IN DIVORCE
NOTICE OF AVAILABILITY OF COUNSELING
TO THE WITHIN-NAMED DEFENDANT:
You have been named as the Defendant in a Complaint in a
divorce proceeding filed in the Court of Common Pleas of Cumberland
County.
This notice is to advise you that in accordance with
Section 3302(d) of the Divorce Code, you may request that the court
require you and your spouse to attend marriage counseling prior to
a divorce being handed down by the court. A list of professional
marriage counselors is available at the Domestic Relations Office,
13 North Hanover Street, Carlisle, Pennsylvania. You are advised
that this list is kept as a convenience "to you and you are not
bound to choose a counselor from this list.
All necessary
arrangements and the cost of counseling sessions are to be borne by
you and your spouse.
If you desire to pursue counseling, you must make your request
for counseling within twenty days of the date on which you receive
this notice.
Failure to do so will constitute a waiver of your
right to request counseling.
COMPLAINT IN DIVORCB
ANNA M. ZINOBILE, . IN THE COURT OF COMMON PLEAS
.
plaintiff . CUMBERLAND COUNTY, PENNSYLVANIA
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v. . NO.
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P. JOSEPH ZINOBILE, : CIVIL ACTION - LAW
Defendant : IN DIVORCE
1. Plaintiff is ANNA M. ZINOBILE, currently residing at 224
Spangler's Mill Road, New Cumberland, York County, Pennsylvania
17070.
2. The Defendant is P. JOSEPH ZINOBILE, currently residing at
416 Candlewyck Road, Camp Hill, Cumberland County, Pennsylvania
17011.
3. Plaintiff and Defendant have been bonafide residents in
the Commonwealth for at least six months immediately previous to
the filing of this Complaint.
4. The Plaintiff and Defendant were married on November 28,
1953 in Mt. Union, Pennsylvania.
5. There have been no prior actions of divorce or for
annulment between the parties.
6. Neither of the parties in this action is presently a
member of the Armed Forces.
7. The plainti ff and Defendant are both ci thena of the
United States.
8. Plaintiff has been advised of the availability of marriage
counseling and that she may have the right to request the Court to
require the parties to participate in such counseling. Being so
advised, Plaintiff does not request that the Court require the
parties to participate in counseling prior to a divorce decree
being handed down by the Court.
COUNT I - DIVORCE
9. Paragraphs 1 - 8 are herein incorporated by reference.
10. The Plaintiff avers that the grounds on which the action
is based are as follows:
(a) The Defendant has offered such indignities to the
Plaintiff, the innocent and injured spouse, so as
to make Plaintiff's condition burdensome and life
intolerable:
(b) The marriage is irretrievably broken:
2
(c) The parties are now living separate and apart: at
the appropriate time, Plaintiff will submit an
affidavit alleging that the parties have lived
separate and apart for at least two years and that
the marriage is irretrievably broken.
WHEREFORE, Plaintiff requests the Court to enter a Decree of
Divorce.
COUNT II - EQUITABLE DISTRIBUTION
11. Paragraphs 1 - 10 are herein incorporated by reference.
12. During the marriage, Plaintiff and Defendant have
acquired various items of marital property, both real and personal,
which are subject to equitable distribution under Chapter 35 of the
Divorce Code.
WHEREFORE, Plaintiff requests that the Court and/or Master
enter an order with regard to the equitable division of any marital
property held by the parties including both real and personal
property and any other property subject to equitable distribution
under Chapter 35 of the Divorce Code.
3
COUNT III - ALIMONY PBNDBNTB LITB,
ATTORNBY'S FBBS AND COSTS
13. paragraphs 1 - 10 are herein incorporated by reference.
14. By reason of this action, Plaintiff will be put to
considerable expense in the preparation of her case in the
employment of counsel and the payment of costs.
15. The Plaintiff is wi thout sufficient funds to support
herself and to meet the costs and expenses of this litigation and
is unable to appropriately maintain herself during the pendency of
this action.
16. Plaintiff's income is not sufficient to provide for
reasonable needs and pay her attorney's fees and the costs of this
litigation.
17. Defendant
Plaintiff's support
expenses.
has
and
adequate earnings to
to pay her counsel
provide for
fees, costs
the
and
4
WHEREFORE, Plaintiff requests that the Court and/or Master
enter an order awarding alimony pendente lite, counsel fees and
expenses to the Plaintiff and against the Defendant in an amount
deemed appropriate pursuant to Section 3701, ~ seq. of the Divorce
Code.
COUNT IV - ALIMONY
18. Paragraphs 1 - 10 are herein incorporated by reference.
19. Plaintiff lacks sufficient property to provide for
reasonable needs.
20. Plaintiff is unable to sufficiently support herself
through appropriate employment.
2l. Defendant has sufficient income and assets to provide
continuing support for the Plaintiff.
WHEREFORE, Plaintiff requests that the Court and/or Master
enter an order awarding alimony for Plaintiff and against Defendant
in an amount and for a period of time deemed appropriate upon
consideration of all factors, pursuant to Section 3701, et seq. of
the Divorce Code.
5
COUNT V - PBNSION RIGHTS
22. Paragraphs 1 - 10 are herein incorporated by reference.
23. The Defendant has recently informed the Plaintiff that
during the course of the parties' marriage the Defendant was able
to acquire a private pension which now has an approximate value of
$400,000.00.
24. The Defendant was continuously self-employed during the
marriage and the Plaintiff has no knowledge concerning the location
of the pension accounts.
25. The Plaintiff has no information concerning the
beneficiary of the Defendant's pension accounts.
26. The said pension accounts are vital to Plaintiff to
ensure her support, maintenance, and/or alimony and equitable
distribution rights should the Defendant die.
WHEREFORE, Plaintiff requests this Honorable Court to compel
the Defendant to maintain or reinstate the Plaintiff as beneficiary
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of all pension accounts currently owned by the Defendant during the
pendency of this action pending further Order of Court.
Respectfully submitted,
CLBCKNER AND FEARBN
By: "'1:.'f'itl ,,-1 ~lJ.'\)I/U )
Je n f r L. Lehman, Esquire
Attorney I.D. '52784
31 North Second street
Harrisburg, PA l7l0l
(717) 238-l73l
Date: ..J:jQLtU /II, /991
,
V B R I F I CAT ION
I verify that the statements made in the foregoing Complaint
in Divorce are true and correct to the best of my knowledge,
information and belief. I understand that false statements herein
are made subject to the penalties of 18 Pa. c.s. ~4904 relating to
unsworn falsification to authorities.
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1/ /' '/Wr, )/--1, <;2 ..,-^-~c..(
'ANNA M. ZINe LE
Date: J. /d. t?9C
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ANNA M. ZINOBILE,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
.
.
v.
: NO. l255-Civil-1994
.
.
P. JOSEPH ZINOBILE,
Defendant
.
.
CIVIL ACTION - LAW
IN DIVORCE
.
.
AFFIDAVIT OF SERVICE
I, JENNIFER L. LEHMAN, ESQUIRE, do hereby certify that a true
and correct copy of the Complaint in Divorce was served upon
Defendant by certified mail, return receipt requested, on the l8th
day of March, 1994. The original signed return receipt, number P
832 862 799, is attached hereto and made a part hereof.
Respectfully submitted,
CLBCKNER AND FBARBN
d ;/J..;Jll4-xJ
L. LEHMAN, ESQUIRE
Supreme Court I.D. .52784
3l North Second Street
Harrisburg, PA 17101
(717) 238-l73l
Date: HaJ,(l)..iH ,qrN
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ANNA M. ZINOBILE,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 1255 CIVIL 1994
CIVIL ACTION - LAW
IN DIVORCE
P. JOSEPH ZINOBILE,
Defendant
AFFIDAVIT OF CONSENT
1. A Complaint in Divorce under Section 3301 (c) of the
Divorce Code was filed on March 14, 1994.
2. The marriage of Plaintiff and Defendant is irretrievably
broken and ninety (90) days have elapsed from the date of the
filing of the Complaint.
3. I consent to the entry of a final Decree of Divorce.
4. I understand that I may lose rights concerning alimony,
division of property, attorneys' fees or expenses if I do not claim
them before divorce is granted.
I verify that the statements made in this affidavit are true
and correct. I understand that false statements herein are made
subject to the penalties of 18 Pa. C.S. ~4904 relating to unsworn
falsification to authorities. ~
~JJ1,~~
ANNA M. t9NOBILE
Date: ~lumbe.r 15, /qq5
Sworn to and sub~~r~bed
before me this ~ day
Of~lit~ , 1995.
9t/M~f(~L
Notary Public
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ANNA M. ZINOBILE,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 1255 CIVIL 1994
CIVIL ACTION - LAW
IN DIVORCE
v.
P. JOSEPH ZINOBILE,
Defendant
AFFIDAVIT OF CONSENT
,
1. A Complaint in Divorce under Section 3301 (c) of the
Divorce Code was filed on March 14, 1994.
2. The marriage of Plaintiff and Defendant is irretrievably
broken and ninety (90) days have elapsed from the date of the
filing of the Complaint.
3. I consent to the entry of a final Decree of Divorce.
4. I understand that I may lose rights concerning alimony,
division of property, attorneys' fees or expenses if I do not claim
them before divorce is granted.
I verify that the statements made in this affidavit are true
and correct. I understand that false statements herein are made
subject to the penalties of 18 Pa. C.S. ~4904 relating to unsworn
falsification to authorities.
Date:
September 27. 1995
-
Sworn to and subscribed
before me this 27th day
of September , 1995.
f-1l1(!tr ~{L//'
I l':!otary PUbliC'- (/"
My Commission Expires:
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 1255 CIVIL 1994
ANNA M. ZINOBILE,
plaintiff
P. JOSEPH ZINOBILE,
Defendant
CIVIL ACTION - LAW
IN DIVORCE
NOTICE OF ELECTION TO RESUME HAlDEN NAME
Notice is hereby given that a final decree in divorce having
been granted on the 24th day of October, 1995, Plaintiff hereby
elects to resume her maiden name of Farrell, and gives this written
notice of her intention in accordance with the provisions of 54
Pa.C.S. Section 704.
a~~ ,J?7 c$.L7~_U
Anna M. Z1n le
to be known as
a~ -;- a(..{.l.-f~_
Anna Farrell
IN WITNESS WHEREOF, I have hereunto set my hand and official
seal.
~nJ~L
otary Public
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ANNA M. ZINOBILE,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO.
1255 CIVIL 1994
P. JOSEPH ZINOBILE,
Defendant
CIVIL ACTION - LAW
IN DIVORCE
STIPULATION FOR ENTRY OF AMENDED DECREE IN DIVORCE
The parties, Anna M. Farrell (formerly Zinobile) and P. Joseph
Zinobile, by and through their respective counsel, Jennifer L.
Lehman, Esquire, and Timothy J. O'Connell, Esquire, hereby jointly
stipulate to the following:
1. A final Decree in Divorce was entered on October 24, 1995,
by the Court of Common Pleas of CUmberland County filed to the
above-captioned docket number.
2. The said Decree dated October 24, 1995, failed to
incorporate the Property Settlement Agreement executed by the
parties on September l5, 1995.
3. The parties, in an effort to comply with the Property
Settlement Agreement, have encountered difficulties in dividing
certain items of marital property without a court order.
4. The parties desire the Property Settlement Agreement dated
September 15, 1995, to be incorporated in their final Divorce
,
.
"
Decree dated October 24, 1995.
WHEREFORE, the parties pray this Honorable Court to amend
their Divorce Decree dated October 24, 1995, so as to incorporate
all the terms of the Property Settlement Agreement dated September
15, 1995, and attached hereto.
Respectfully submitted,
CLECKNER AND FEAREN
By: ~ JI/'M / lL i1 1IL1rVlM. )
J~ifer L. Lehman, Esquire
P. O. Box 11847
31 North Second Street
Harrisburg, PA 17108-1847
(717) 238-1731
and
L
-'
By:
T' J \0' Connell, Esquire
258 th econd Street
P. O. 123
Harrisburg, PA 17101
(717) 232-2115
CONSENT
I hereby consent to the entry of an Order amending the Divorce
Decree dated October 24, 1995, to include the Property Settlement
Agreement dated September 15, 1995, and hereby waive my right to
appear before the court
- ,-)
(+><4J- )17, /a.'-H,L~
Anna M. Farrell
for a hearing on this matter.
~~,'
"
AGREEMENT
THIS AGREEMENT made this
/Sfh
day of
.Si trfJITTl huJ
.
1995, by and between P. JOSEPH ZINOBILE, of 416 Candlewyck Road,
Camp Hil}, cumberland County, Pennsylvania 17011, hereinafter for
the purpose of brevity referred to as "Husband", and ANNA F,
ZINOBILE, of Shoreham Road, Camp Hill, Cumberland County,
Pennsylvania
17070, hereinafter for the purpose of brevity
referred to as "Wife",
WITNESSETH:
WHBREAS, the parties hereto are husband and wife, having been
lawfully joined in marriage on November 28, 1953, and diverse
unhappy differences, disputes, misunderstandings and difficulties
have arisen between the parties, as a result of which they are
living separate and apart; and
WHEREAS, Wife has instituted an action for divorce in the
Court of Common Pleas of Cumberland county; and
WHBREAS, the parties hereto are the parents of five children,
all of whom are emancipated; and
WHBREAS, it is the desire of the parties, after long and
careful consideration, to amicably, adjust, compromise and settle
all property rights and all rights in, to or against each other's
property or estate, including property heretofore or subsequently
acquired by either party, and to settle all disputes existing
between them, including any and all claims for Wife's and/or
Husband's maintenance and/or for support, alimony counsel fees,
and costs.
1
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HOW, THBRBFORB, in consideration of the
several mutual
promises and/or covenants and/or agreements hereinafter contained,
each of the parties hereto, intending to be legally bound hereby,
promises, covenants and agrees as follows:
FIRST: DIVORCB
The parties hereto further agree that the marriage is
irretrievably broken, and that they mutually consent to a divorce
and agree to execute section 3301(c) affidavits at the same time
as he or she executes the agreement. These consents will be filed
by Wife I s counsel as soon as possible after the signing of the
agreement. This Agreement shall remain in full force and effect
regardless of any change in the marital status of the parties. It
is warranted, covenanted, and represented by Husband and Wife, each
to the other, that this Agreement is lawful and enforceable and
this warranty, covenant and representation is made for the specific
purpose of inducing Husband and Wife to execute the Agreement.
Husband and Wife each knowingly and understandingly waive any and
all possible claims that this Agreement is, for any reason, illegal
or for any reason whatsoever of public policy, unenforceable in
whole or in part.
Husband and Wife each does hereby warrant,
covenant and agree that, in any possible event, he and she is and
shall forever be estopped from asserting any illegality or
unenforceability as to all or any part of this Agreement.
2
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SECOND: RBLUSES
(A) Except as provided for in this Agreement, Husband and
Wife each hereby forever releases, remises, discharges and
quitclaims the other and the estate of the other, for all time to
come ana-for all purposes whatsoever, from any action of any nature
whatsoever in law or in equity.
(B) Each of the parties specifically covenants and agrees
and warrants and represents that the execution of this Agreement
and its terms and provisions are accepted by them as including,
inter alia, full and complete payment by the other for any and all
past, present or future obligations for support, care, education,
maintenance, and property rights of the other, and each further
covenants, warrants, represents and agrees that no action will be
instituted by them (or claim of any kind be made) for their
support, or for any claim for property or rights other than as set
forth in this Agreement, directly or indirectly, against the other,
in any court or any jurisdiction whatsoever. The parties hereto
recognize, acknowledge and agree that each of them hereafter shall
not have and does not have any rights or claims for support, care
and maintenance or for any rights or claims of property because the
provisions herein in the nature of a post-nuptial agreement are
fair and reasonable and the property distributions herein are fair
and reasonable, and Wife acknowledges that the property conveyed
to her is a fair and substantial portion of and division of
Husband's assets and Husband's rights to equitable distribution of
property, and Husband acknowledges that property allocated to him
3
is fair and a substantial portion of and division of the assets of
the parties and Wife's rights to equitable distribution of
property.
THIRD: RBLBASB OF TBSTAMENTARY CLAIMS
Except as provided for in this Agreement, each of the parties
hereto shall have the right to dispose of his or her property by
Last Will and Testament or otherwise, and each of them agrees that
the estate of the other, whether real, personal or mixed, shall be
and belong to the person or persons who would have become entitled
thereto as if the decedent had been the last to die. This
provision is intended to constitute a mutual waiver by the parties
of any rights to take against each other's last Wills under the
present or future laws of any jurisdiction whatsoever, and is
intended to confer third party beneficiary rights upon the other
heirs and beneficiaries of each. Either party may, however, make
such provision for the other as he or she may desire in and by his
or her Last Will and Testament; and each of the parties further
covenants and agrees that he or she will permit any will of the
other to be probated and allow administration upon his or her
personal, real or mixed estate and effects to be taken out by the
person or persons who would have been entitled to do so had Husband
or Wife died during the lifetime of the other; and that neither
Husband nor Wife will claim against or contest the will and the
estate of the other. Each of the parties hereby releases,
relinquishes and waives any and all rights to act as executor or
4
"
"
executrix or administrator or administratrix of the other party's
estate. Each of the parties hereto further covenants and agrees
for himself and herself and his and her heirs, executors,
administrators and assigns, that he or she will never at any time
hereafter sue the other party of his or her heirs, executors,
administrators or assigns, for the purpose of enforcing any of the
rights relinquished under this paragraph.
FOURTH: LEGAL ADVICE
The provisions of this Agreement and their legal effect have
been fully explained to the parties by their respective counsel.
The Husband has employed and had the benefit of counsel of Timothy
J. o'Connell, Esquire, as his attorney. The Wife has had the
benefit of counsel of Jennifer L. Lehman, Esquire. Each party
acknowledges that he or she fully understands the facts and fully
understands his or her legal rights and obligations and each party
acknowledges and accepts that this Agreement is, in the
circumstances, fair and equitable, and that it is being entered
into freely and voluntarily after having received such advice and
with such knowledge, and that execution of the Agreement is not the
result of any duress or undue influence and that it is not the
result of any collusion or improper or illegal agreement or
agreements. The parties further acknowledge that they have each
made to the other a full accounting of their respective assets,
estate, liabilities and sources of income and that they waive any
specific enumeration thereof for the purpose of this Agreement,
5
Each party agrees that he or she shall not at any time raise a
defense or otherwise lack of such disclosure in any legal
proceeding involving this Agreement, with the exception of
disclosure that may have been fraudulently withheld.
FIFTH: SEPARATION AND NON-MOLESTATION AGRBEMBNT
It shall be lawful for Husband and Wife at all times hereafter
to live separate and apart from each other and to reside from time
to time at such place or places as they shall respectively deem
fit, free from any authority, control, restraint or interference,
direct or indirect, by each other. Each party agrees that he or
she will not molest or harass the other, or compel or endeavor to
compel the other to cohabit or dwell with him or her by any legal
or other proceedings. Each may have for her or his separate use
and benefit the right to conduct, carryon or engage in any
business, profession or occupation. Neither of the parties shall,
in any way whatsoever, interfere with the other's employment or
occupation. The parties are free to mutually and voluntarily make
any efforts at reconciliation as he, she or they shall deem proper.
It is specifically intended and understood and agreed by and
between the parties hereto that each is to be able to live not only
separate and apart from each other, but is also to be free to act
as if he or she were unmarried so far as any other persons are
concerned and each covenants and agrees not to harass or embarrass
the other or any other person who either party may hereafter see
socially. Each of the parties hereto covenants and agrees that
6
SIXTH: DEBTS
All debts, contracts, obligations or liabilities incurred at
any time in the past or future by either of the parties will be
paid promptly by said party, unless and except as otherwise
specifically set forth in this Agreement; and each of the parties
hereto further promises, covenants and agrees that each will now
and at all times hereafter save harmless and keep the other or his
or her estate indemnified and saved harmless from all debts or
liabilities incurred by him or her, as the case may be, and from
all actions, claims and demands whatsoever with respect thereto,
"
neither will deny or endeavor to abridge any right of support or
maintenance which the other might have because of any alleged
conduct with regard to any third persons; provided, however, that
the parties hereto recognize that it is intended that this
Agreement shall and does supersede any and all rights or claims to
support. Each of the parties hereto covenants and agrees that
neither will deny or endeavor to abridge any right of support or
maintenance which the other might have because of any alleged
conduct with regard to any third persons; provided, however, that
the parties hereto recognize that it is intended that this
Agreement shall and does supersede any and all rights or claims to
support, Each of the parties hereto covenants and agrees that he
and she will not charge the other with adultery in any action of
any nature whatsoever, directly or indirectly, or whether involving
the parties or third persons.
7
and from all costs, legal or otherwise, and counsel fees whatsoever
appertaining to such actions, claims and demands. Neither party
shall, after the date of this Agreement, contract or incur any debt
or liability for which the other or his or her property might be
responsible, and shall indemnify and save harmless the other from
any and all claims or demands made against her or him by reason of
debts or obligations incurred by her or him and from all costs,
legal costs and counsel fees unless provided to the contrary
herein.
Husband agrees that he will be solely responsible and hold
Wife harmless for any contingent liabilities for tax, interest or
penalties arising from any willful misrepresentation of or failure
to disclosure the nature or extent of his income during the period
of the marriage.
SEVENTH: EOUITABLB DISTRIBUTION
(A) Real Estate
1. 416 Candlewvck Road. Camp Hill. Within ten (10) days
after the signing of this agreement, Husband shall elect either to
purchase Wife's interest in the house and real estate located at
416 Candlewyck Road, or, to allow the same to be placed upon the
market and sold. The parties acknowledge that the appraised value,
based on an appraisal performed by Wm. J. Daylor dated July 17,
1995, is $130,000.00. In the event Husband elects to purchase
Wife's interest in an amount equalling at least one-half of the
said appraised value, Wife shall transfer her right, title and
8
,
interest in the property to Husband, Husband shall, within ninety
(90) days of making the election, pay to Wife the funds necessary
to satisfy her interest. In the event Husband offers to purchase
Wife's interest for an amount less than one-half the appraised
value, ~fe shall accept or reject said offer in writing within ten
(10) days after receipt. In the event Wife rejects said offer, or
in the event Husband elects to place the house and real estate on
the market, the house shall then be placed upon the market.
Husband may elect to employ the services of a licensed real
estate broker or may act as broker himself, The property shall be
listed at the appraised value or any other price agreed to by the
parties. The parties, my mutual agreement, may accept any offer
less than the listed price or other counter-offer. In the event
that husband acts as real estate broker, no commission will be
charged in the event of a sale arising out of Husband's brokerage.
If a written offer to purchase the property acceptable to the
parties has not been made within sixty days of the date of listing,
the parties shall list the property with a mutually agreeable
broker.
Husband shall be entitled to the exclusive possession and the
use of the property until the date of sale. Husband shall be
responsible for all property, school or other real estate taxes
incurred since August 3, 1993 until transfer of property to either
Wife or a third party.
2. Walnut street. Wife agrees to transfer all of her right,
9
".
,
title and interest in 3432 and 3432A Walnut street to Husband. In
consideration of said transfer, Husband agrees to pay to Wife
eighteen thousand ($18,000.00) dollars, Husband agrees to pay for
the necessary deed preparation. Recording fees incident to the
transfer-of the properties shall be borne equally by the parties.
Husband agrees to indemnify and hold Wife harmless from any
responsibility regarding any obligation or liabilities incurred as
a result of ownership of the said Walnut street properties.
(B) Automobiles
1, Wife will assign her right, title and interest in the
1988 Cadillac to Husband.
2. Husband will assign his right, title and interest in the
1992 Saturn to Wife. For purposes of this agreement, the Cadillac
and the Saturn shall be regarded as having equal values.
3, Husband will transfer his right, title and interest in
the Ford Econoline R.V. to Wife, For purposes of this agreement,
said vehicle is valued at eleven thousand five hundred ($11,500.00)
dollars. Husband shall credit one-half of this amount or five
thousand seven hundred fifty ($5,750.00) dollars against any other
payment due Wife under this agreement.
The parties agree to indemnify and hold harmless the other
from any loan, debt, claim or other obligation arising out of the
ownership of the vehicles assigned herein,
(C) Mutual Funds
The shares of the mutual funds shall be divided equally
between the parties, The type and number of shares to be divided
10
shall be the type and number of shares owned by Husband and Wife
on AUgust 5, 1993, the date of separation. Said division shall be
in accordance with the following:
Husband
~
Oppenhei'mer
Money Market 96,845.45
Strat Inc, A 5,412.00
Asset Alocc. A 2,173,962
Global A 5,742.118
Glob Biotech 1,228.7
T. Rowe Price (IRA) 256.58
*(48,422.725)
(2,706.00)
(1,086.98)
1,712.586
(2,014.766)
(614.35)
112.866
(71.837)
Northwestern Mutual Life (IRA)
equal as of August 5, 1993
Kemper (IRA)
equal as of August 5, 1993
*number in parenthesis is number of shares to be transferred to
Wife
(D) stock
citicorp - 100
USF&G - 300
Husband agrees to cooperate
basis for the transferred stock
(50)
(150)
in providing Wife with the cost
(E) Bank Accounts
Harris $14,68l.28
$8,449.10
($3,116.09)
($2,781.15)
PNC $5,562.31
(F) Loan to Louise Anne and Amv Jean
The payments made by the parties' daughter on the outstanding
balance of approximately $13,800 shall be divided equally between
the parties. The parties acknowledge that one thousand ($1,000.00)
dollars is currently owed the parties by their daughter, Amy Jean.
11
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Any payments made by Amy Jean shall be divided equally between the
parties.
(G) Lite Insurance
Husband will retain ownership of the Northwestern Mutual Life
Insurance policy no. 9864837 and Central Life Insurance policy no.
2535040, but agrees to designate and maintain Wife during her life
as no less than a one-sixth beneficiary under both policies.
Husband agrees to maintain said policies during his lifetime and
may borrow against their value for this purpose. At request of
Wife, Husband will provide a release to Wife for the purpose of
verifying her beneficiary status on said policies.
(H) Personal Propertv
Each party agrees to assign their right, title and interest
to any and all personal property currently in the possession of the
other, including all appliances, furniture and other household
items, located at the marital residence. Husband agrees to return
to Wife her mother's fosteria and her father's coin collection.
(I) Health Insurance Reimbursement
Husband agrees to reimburse wife $256.31 representing her
interest in a health insurance refund received by Husband.
EIGHTH: ALIMONY. SUPPORT AND COUNSEL PEES
The parties agree to waive any right each may have against
the other for alimony, spousal support, and counsel fees.
l2
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NINTH: CONFIRMATORY DOCUMENTS
Husband and Wife covenant and agree that they will forthwith
(and within at least fifteen [15] days after demand therefor)
execute any and all written instruments, assignments, releases,
satiSfactions, deeds, notes or such other writings as may be
necessary or desirable for the property effectuation of this
Agreement. The parties will further deliver to each other whatever
personal papers, documents, or writings that each now possess which
are the property of the other.
TBNTH: AGREEMENT TO CONTINUE IN EVENT OF DIVORCE
This Agreement shall remain in full force and effect unless
and until it is terminated either by mutual written consent of both
parties, or to the extent it is appropriately terminated by the
death of either party under the terms of this Agreement. The
failure of either party to insist upon strict performance of any
of the provisions of this Agreement shall not be construed as a
waiver of any subsequent default of the same or similar nature.
In the event that the marriage of the parties hereto is terminated
by divorce, this Agreement shall nevertheless remain in full force
and effect, and shall survive such decree and shall not in any way
be affected thereby, except as provided herein.
ELEVENTH: AGREEMENT BINDING ON HEIRS
The terms, provisions and conditions of this Agreement shall
be binding upon any and all of their heirs, executors,
13
>,......-:;'.-"rL:~
"
administrators, successors and assigns of either of the respective
parties hereto, except as otherwise herein provided.
TWELFTH: APPLICABLE LAW
This Agreement shall be construed under the Laws of the
Commonwealth of Pennsylvania.
THIRTBENTH: PRIOR AGREEMENTS
It is understood and agreed that any and all property
.
settlement agreements which mayor have been executed prior to the
date and time of this Agreement are null and void and of no effect.
FOURTEENTH: VOID CLAUSES
If any term, condition, clause or provision of this Agreement
shall be determined or declared to be void or invalid in law or
otherwise, then only that term, condition, clause or provision
shall be stricken from this Agreement and in all respects this
Agreement shall be valid and continue in full force, effect and
operation. No provision of this Agreement shall be interpreted for
or against any party because that party or that party's
representative drafted this Agreement in whole or in part.
FIFTEENTH: ENFORCEMENT
(A) It is expressly understood and agreed by and between the
parties hereto that this Agreement may be specifically enforced by
Husband or Wife in a court of equity, and the parties hereto agree
14
:
.
'.
"
.
that if an action to enforce this Agreement is brought in equity
by either party, the other party will make no obj ection on the
alleged ground of lack of jurisdiction of said court on the ground
that there is an adequate remedy of law, The parties do not intend
or purport hereby to improperly confer jurisdiction on a court in
equity by their agreement, but they agree as provided herein for
.
the forum of equity in mutual recognition of the present state of
the law, and in recognition of the general jurisdiction of courts
in equity over agreements such as this one.
(B) Notwithstanding anything to the contrary herein, Wife or
Husband may also proceed with an action at law for redress of any
of his or her rights under the terms of this Agreement. In the
event that for any reason whatsoever, either party is obliged to
proceed at law for redress of his or her rights under the terms of
this Agreement, then it is specifically understood and agreed that
for and in specific consideration of the other provisions and
covenants of this Agreement, each shall waive any right to jury
trial so as to expedite the hearing and disposition of such case
and so as to avoid delay.
(C) It is specifically understood and agreed by the parties
that in the event of a default under the terms of this Agreement,
the non-defaulting party shall have the right to file a petition
for contempt and request such relief and remedies as authorized by
law of the court.
(D) Each party further hereby agrees to pay and to save and
hold harmless the other party from any and all attorney's fees,
15
,
..
.
costs and legal expenses that either may sustain, or incur or
become liable or answerable for, in any way whatsoever, or shall
pay upon, or in consequence of, any default or breach by the other
of any of the terms or provisions of this Agreement by reason of
which either party shall or shall be obliged to retain or engage
counsel to initiate or maintain or defend proceedings against the
other at law or equity or both or in any way whatsoever; provided
that the party who seeks to recover such attorney's fees, costs,
and ~egal expenses and expenses must first be successful in whole
.
or in part, before there would be any liability for attorney fees.
(E) All remedies provided by law and all remedies provided
for in this Agreement for enforcement of this Agreement shall be
deemed to be cumulative and the exercise of one remedy shall not
bar or prevent the pursuit of any other remedy and either party
may elect to pursue such remedies simultaneously and the exercise
of a remedy one or more times shall not exhaust its use or prevent
further pursuit of such remedy.
(F) This agreement shall not be deemed to merge into the
decree of divorce.
IN WITNESS WHEREOF, and intending to be legally bound hereby,
the parties hereto have hereunto set their hands and seals the day
and year first above written.
witness:
"Au!Jlu)(1 JJv~
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SEAL)
(SEAL)
16
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ANNA M. ZINOBILE,
plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO.
1255 CIVIL 1994
P. JOSEPH ZINOBILE,
Defendant
CIVIL ACTION - LAW
IN DIVORCE
AND NOW,
AMEND~ DECREB IN DIVORCE
this '}..L/rday of ~~
, 1996, it
is hereby ORDERED AND DECREED that the Divorce Decree dated October
24, 1995, is hereby amended so as to include th~ following:
The Property Settlement Agreement dated September 15, 1995, as
attached hereto is hereby incorporated in this Decree of Divorce.
BY THE COURT
~lF-,~~.
ANNA M. ZINOBILE. . IN THE COURT OF COMMON PLEAS OF
.
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
. CIVIL ACTION - LAW
.
:
VB. NO. 1255 CIVIL 19 94
P. JOSEPH ZINOBILE,
Defendant IN DIVORCE
STATUS SHEET
DATE:
ACTIVITIES:
r-;-"
R\ c;. \ \.)b Q:l 0\'\ t....
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'}AI;-,II'/ ) ,;- /-", ' , ),. 1M
9/7/95
,
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.--
,
.
OFFICE OF DIVORCE MASTER
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
9 North Hanover Street
Carlisle, PA 17013
(717) 240.6535
E. Robert Elicker, II
Divorce Master
Tracl .10 Col~er
Olllee Maneger/Reporter
Jennifer L. Lehman
Attorney at Law
CLECKNER & FEAREN
31 North Second street
Harrisburg, PA 17101
We.t Shore
697-0371 Exl. 6535
September 7, 1995
Timothy J. O'Connell, Esquire
TURNER & O'CONNELL
258 North Second
P.O, Box 1123
Harrisburg, PA 17101
RE: Anna M. Zinobile vs. P. Joseph Zinobile
No. 94 - 1255
In Divorce
Dear Ms. Lehman and Mr. O'Connell:
By order of court of President Judge Harold E. Sheely
dated september 5, 1995, the full-time Master has been appointed
in the above referenced divorce proceedings.
A divorce complaint was filed on March 14, 1994, raising
grounds for divorce of irretrievable breakdown of the marriage
and indignities and the economic claims of equitable
distribution, alimony, alimony pendente lite, and counsel fees
and expenses. I assume that grounds for divorce are not an
issue and that the parties will file affidavits of consent under
Section 3301(c) of the Domestic Relations Code prior to a
hearing to be held in these proceedings.
Based on my assumption that grounds for divorce are not
an issue, I am directing each counsel to file a pre-trial
statement in accordance with P.R.C.P. 1920.33(b) on or before
Friday, September 29, 1995. Upon receipt of the pre-trial
statements I will immediately schedule a pre-hearing conference
Hs. Lehman and Mr. O'Connell, Attorneys at Law
7 September 1995
Page 2
with counsel to discuss the issues and, if necessary, schedule a
hearing.
Very truly yours,
E. Robert Elicker, II
Divorce Master
NOTE: Sanctions for failure to file the pre-trial statements
are set forth in subdivision (c) and (d) of Rule 1920.33,
THE ORIGINAL PRE-TRIAL STATEMENT SHOULD BE FILED IN THE
MASTER'S OFFICE AND A COPY SENT DIRECTLY TO OPPOSING
COUNSEL.
"ICHA"D W. CL~CMN~"
~. DANIEL ALTLAND
Dt:NNla.L SHATTO
ANN t. RHOADS
aTUART L. MHA,DE
..IENNI'CR L_ LEHMAN
MARC T LEVIN.
CLECKNER AND FEAREN
ATTORNEYS AT LAW
31 NORTH SECOND STREET
P. O. BOX 118...7
HARRISBURG, PENNSYLVANIA 17 10B'1 B47
October 4, 1995
. ....L.O "'DIo4., 'I: 0 IN H[W ",[Aac,.
HAND DELIVERED
E. Robert Elicker, II, Esquire
Divorce Master
Cumberland County Court of
Common Pleas
ATTN: Traci
9 North Hanover Street
Carlisle, PA 17013
Re: Zlnoblle v. Zlnoblle
No, 94-1255
Dear Traci:
......,~.......-...,_..,._.._,~ ~...._..".~
0' COUNSEL
WILLIAM FEAREN
TE.LI:PHON[
.7171.38.1731
...
"171..1......1
Pursuant to our telephone conversation of October 3, 1995, enclosed you will find a
photocopy of the Property Settlement Agreement dated September IS, 1995, which resolves the
economic issues in the above-captioned mailer.
Pursuant to your instructions, I will be filing the parties' Affidavit of Consent today. 1
will wait until I receive a copy of the Order revoking Mr. Elicker as Master and then file the
Praecipe to Transmit in order to finalize the divorce.
Thank you for your attention to this matter.
Sincerely,
CLECKNER & FEAREN
r~c1. ~
Jennifer L. Lehman
JLL:bh
Enclosure
cc: Ms. Anna Zinobile
Timothy J. O'Connell, Esquire
I~ THE COURT OF COMMON PLE.'-5 OF
Ct.'MBERUNll COlJNTY, PENNSytVA.~L\
ANNA M. ZINOBILE
Plaintiff
vs.
P. JOSEPH ZINOBILE
NO.
1994
"1;1\
.
MOTION FOR APPO~T:mlT OF MAST!R
(Plaintiff) (B~Ka),
following cla~:
moves the court to appoint
Anna M. Zinobile
a master ~th respect to the
(x) Divorce
( ) .-.nnulment
(X) Alimony
(x) Alimony Pendente
( x )
( )
( X)
( x)
Distribution or Proper~'
Supporl:
Counsel Fees
Costs and ~~el1Ses
Lite
and in SUDDort or the motion states:
.. (l) Discovery is comp,lete as to the cla~s{s) for which the
appoinal!I1l: of a master is requested.
(2) The defendant (has) (C1QX.Q1K) appeared in the action (personally)
(by his attor:1ey, Timothv O'Connell ,Esquire).
(3) The sl:aturory ground{s) ror divorce ~) (are)
Sections 320l(c) or 320l(d)
(4) Delete the inapplicable paragraph(s):
(a) The action is not contested.
(b) lUl~1I!llCICC lI:zs ~xKGladlIlIt lCICdlx J:~x:mc x:tui
11X~~~:
(c) The action is contesl:ed ~th respect :0 the follow~g
cla~: Equitable Distribution, Counsel fees, costs & expenses, alimony, alimony pendente
l1te. (5) The aCl:ion (~Xg~X~) (does not involve) complex issues or law
or fact.
(6) The hearing is ~ectad to take one-half ~K~ij~~) (days).
(7) Additional iD!o~tion, if any. relevant to the motion:
None
Date:
flurA! :U. 1Cf'l5'"
,
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At rote:, 'or (Pla~ti=:)
illRill"..-)
ORDER Al'PODlTD'G ~!.~TER
.Iu'ID NOW' <;:-aa1 6~ ,19(l~ -;- \:::, I-{O A-a"rE:c,c.<a-..... Esquire,
is appointed ~ster with respect to the following cla~: EQuitable distribution,
counsel fees, costs & expenses, alimony, alimony pendente lite
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ANNA M. ZINOBILB
Plaintiff
: IN THB COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
I
V
: NO. 1255 CIVIL 1994
I
P. JOSEPH ZINOBILE
Defendant
: CIVIL ACTION - LAW
: IN DIVORCE
.
.
IN RE: SUPPORT
BBFORE SHEELY. P.J.
AND NOW, this,
ORDER OF COURT
\ 3 i;Jv
day of SEPTEMBBR, 1994, after
careful consideration, wife's petition for special relief is
DENIED as to alimony pendente lite and counsel fees, and GRANTBD
as to having wife redesignated or maintained beneficiary of the
life insurance policies and pension account. Husband has
fourteen (14) days from the filing of this order to comply with
this directive.
By the Court,
\,~C01\~ ~ /
Haro ~ E. Sheely, P.J.
Jennifer L. Lehman, Esquire
For the Plaintiff
Timothy J. O'Connell, Bsquire
For the Defendant
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ANNA M. ZINOBILE
Plaintiff
V
P. JOSEPH ZINOBILB
Defendant
I IN THE COURT OF COMMON PLEAS OF
: CUMBBRLAND COUNTY, PBNNSYLVANIA
:
: NO. 1255 CIVIL 1994
:
: CIVIL ACTION - LAW
: IN DIVORCB
I
IN REI SUPPORT
BEFORB SHEELY. P.J.
MEMORANDUM OPINION AND ORDBR OF COURT
Plaintiff's petition seeks relief in two areas:
(1) Requiring husband to continue wife as the beneficiary on
two North Western Mutual Life Insurance policies and on an
Oppenheimer I.R.A. having a balance of approximately $382,000.00.
(2) Alimony pendente lite, counsel fees and expenses.
A hearing was held before this court on June 8, 1994, from
which we made the following findings.
FINDINGS OF FACT
1. The parties to this action were married on November 28,
1953, and separated about August 5, 1993, when wife left the
marital home.
2. Wife is sixty-one (61) years of age and husband is sixty-
four (64) years of age. Both parties are retired.
3. On September 16, 1993, a separation and support
agreement was signed by husband and wife. As to support, husband
agreed to pay wife $1,500.00 per month for a four (4) year
period.
4. Wife resides with a daughter while husband resides in
the marital home.
5. Wife filed a complaint in divorce on March 14, 1994.
NO. 1255 CIVIL 1994
6. Husband's income is as follows:
a. Social Security - $765.00/month.
b. Net From Rents - $190.00/month.
c. Payments of both principal and interest from
Oppenheimer retirement fund - $2,750.00/month.
7. Husband's 1993 Federal Income Tax Return was not
produced at the hearing since he was granted an extension.
8. Wife's income is solely from interest from bank accounts
as she is not yet eligible for social security.
9. After separation, wife withdrew the following amounts
from jointly held bank accounts:
(a) August 3, 1993
(b) March 4, 1994
(c) April 8, 1994
$48,476.00
$76,363.88
$ 8,449.00
10. Remaining after these three withdrawals is
approximately $80,000.00 with interest of $154.00/month.
11. Wife has paid her attorney a $2,000.00 retainer and
counsel charges are $90.00/hour. Several hundred dollars
remained of the retainer at the time of the hearing.
12. Other major assets of the parties are:
a. Marital Home - Jointly owned
b. IRA - wife
$155,000.00
$ 66,866.49
$382,644.09
$ 52,500.00
c. IRA - husband
d. Realty jointly-owned
in Dauphin County
2
e. Bank account in husband's
name, approximately
$146,000.00
NO. 1255 CIVIL 1994
DISCUSSION
In her petition for special relief, wife initially asks this
court to compel husband to maintain or reinstate wife as
beneficiary of all pension accounts as well as two life insurance
policies. wife is seeking such relief to assure that such funds
would be in her name in the event that husband dies during the
pendency of this action causing its abatement.
Initially, we note that no equitable distribution of marital
property can be carried out unless and until a valid decree in
divorce has been entered. Mvers v. Mvers, 397 Pa.Super. 450,
452, 580 A.2d 384, 385 (1990). The pension account a~d life
insurance policies in this case constitute marital property
subject to equitable distribution as they were acquired during
the marriage with marital assets. Only the cash surrender value
of the life insurance policies can be considered marital
property. Lindsev v. Lindsev, 342 Pa. Super. 72, 78, 492 A.2d
396, 398 (1985). The cash surrender values of the two policies
in this case totals approximately $32,000.00. The death benefit
of the two policies totals approximately $123,000.00.
In Lindsev, suora, husband initially purchased two life
insurance policies on himself and named wife sole beneficiary.
Husband and wife then separated and wife secured an injunction
against husband barring him from disposing of any marital
3
property. Husband subsequently changed the beneficiary
designations on the two policies from his wife to another woman.
The husband died prior to the entry of a final divorce decree.
The Superior Court stated in Lindsev that being named sole
beneficiary of a life insurance policy merely vested wife with an
expectation during the insured's lifetime. IS. at 76-77, 492
A.2d at 398. Thus, the court concluded that husband did not
violate the injunction by changing beneficiary designations. lS.
at 79, 492 A.2d at 399. The court then noted in a footnote I
We do not, by this decision, hold
that the court did not have the
power to order Mr. Lindsey to
maintain Mrs. Lindsey as the
primary beneficiary of the two
policies. We decide only that the
instant order enjoining Mr. Lindsey
from disposing of "any marital
property" did not encompass the
change in the beneficiary
designation.
Id. at 78, 492 A.2d at 399, n.3.
NO. 1255 CIVIL 1994
A more recent decision of the Superior Court has held under
the peculiar facts of the case that the lower court did not have
the authority to order a wife be designated as beneficiary on her
husband's insurance polices. In Geraqhtv v. Geraqhtv, 411
Pa.Super. 53, 600 A.2d 1261 (1991), Mr. Geraghty went in the
hospital on June 9, 1990, and his death was imminent and known to
the court. A hearing was held on wife's petition for special
relief on June 29, 1990, following which the court ordered Mr.
Geraghty to redesignate his wife as the beneficiary. The order
4
r.' ~-- H
NO. 1255 CIVIL 1994
gave him seven (7) days to comply. Mr. Geraghty died before the
seven days expired without changing the beneficiary. His
executor appealed after a denial of reconsideration by the lower
court. In reversing the lower court, the Superior Court stated I
Due to Mr. Geraghty's
impending death, it was extremely
unlikely that any further action
could or would be taken regarding
either a divorce decree or the
economic claims. Thus, the trial
court's order cannot be construed
as an attempt to preserve martial
property for future equitable
distribution because it was
apparent that no future proceedings
would ever occur. When viewed in
this context, the trial court's
directive that appellee be
reinstated as the beneficiary
cannot be interpreted as anything
other than a distribution of the
life insurance proceeds and pension
benefits to appellee. Because a
permanent distribution of marital
assets prior to the entry of the
divorce decree violates the
provisions of the Divorce Code, the
trial court's order must be
vacated.
Geraahtv, at 60, 600 A.2d at 1264.
In the present action, there is no indication that husband
is ill or that he will die causing an abatement of this action
prior to the entry of a final divorce decree. While we are
keenly aware that under the Divorce Code it is improper to make a
permanent distribution of marital property prior to the entry of
a final divorce decree, we do believe it is within the equitable
powers of this court to preserve marital property until such time
5
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.
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I
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NO. 1255 CIVIL 1994
as a final divorce decree can be entered. In this vein, we
direct husband to redesignate or maintain wife as beneficiary of
the aforementioned life insurance policies and pension account.
This directive should in no way be construed as anything other
than an attempt to preserve marital property for future equitable
distribution.
wife also seeks alimony pendente lite and counsel fees. The
purpose of alimony pendente lite is to prevent one spouse from
being financially disadvantaged. Powers v. Powers, 419 Pa.Super.
464, 467, 615 A.2d 459, 460-61 (1992). Alimony pendente lite
acts "to sustain the dependent spouse on an equal basis with the
other spouse while he or she maintains or defends a divorce
action." Butler v, Butler, 423 Pa.Super. 530, 544, 621 A.2d 659,
667, appeal granted, ____ Pa.____, 631 A.2d 1002 (1993).
In the present case, wife has made withdrawals of money from
jointly held accounts totalling approximately $130,000.00.
Additionally, wife has a retirement fund in the amount of
approximately $67,000.00. Wife is presently living with a
daughter and testified that she shares expenses with her
daughter. Both parties are retired and not seeking future
employment. Based on these facts, we believe that wife has
sufficient assets to meet the needs of pending litigation and is
able to maintain her action without an award of alimony pendente
lite.
6
I
"
J>....-_.-.......... ....".~,.,".--.
NO. 1255 CIVIL 1994
ORDBR OF COURT
AND NOW, this,
Iff/l
day of SBPTEMBBR, 1994, after
careful consideration, wife's petition for special relief is
DENIBD as to alimony pendente lite and counsel fees, and GRANTED
as to having wife rsdesignated or maintained beneficiary of the
life insurance policies and pension account. Husband has
fourteen (14) days from the filing of this order to comply with
this directive.
By the Court,
/s/ Harold B. Sheelv
Harold B. Sheely, P.J.
Jennifer L. Lehman, Esquire
For the Plaintiff
Timothy J. O'Connell, Bsquire
For the Defendant
:sld
7
1
JOSBPH AND ANN ZINOBILB
SBPARATION AND SUPPORT AGRBEMBNT
SBPARATION AND SUPPORT AGRBEMBNT
The following separation and support Agreement was reached
through Mediation, by and between P. Joseph zinobile hereinafter
called "HUSBAND", AND Ann F. Zinobile hereinafter called "WIFE".
o HUSBAND and WIFE were lawfully married at Mount Union,
Pennsylvania on November 28, 1953.
o Differences have arisen between HUSBAND and WIFE as a
consequence of which they have began living separate and apart
from each other on August 5 ,1993.
o HUSBAND and WIFE hereby agree by and between the
parties the following terms to be in effect from September 1,
1993 until January 1, 1994. If no modifications are considered
necessary by January 1, 1994, the intent of the parties is that
this agreement continue until such time as they seek to modify
it, The parties agree that it is their intent to seek this
temporary period of separation to assist them in resolving
marital issues with the intent of maintaining a viable marriage
together.
I
EXHIBIT
'Ii' - r:
.,
,
2
JOSBPR AND ANN ZINOBILB
SBPARATION AND SUPPORT AGREEMBNT
1. SPOUSAL SUPPORT. HUSBAND has agreed to maintain spousal
support in the amount of $1,500 a month, to be received by WIFE by
the fifteenth of each month for that month, beginning September 1993
and continuing a minimum of 4 months until January 1994 without
interruption.
At that time HUSBAND and WIFE agree to meet and
discuss the continuation of this agreement and other marital
circumstances dependent upon their then current circumstances.
2. SEPARATION: It shall be lawful for each party at all times
during this period to live separate and apart from each other at such
place as he or she from time to time shall choose or deem fit.
During this period from September 1 1993, to January 1, 1994, both
parties agree that it is not the intention of either party to seek
the comfort of, live with, or date persons of the opposite sex,
3. CHILDRBN: Both parties realize that the continuation of
the family unit is of paramount importance and therefore agree that
they will not discuss, criticize, humiliate, or involve their
children in their problem. Every effort will be made by both parties
to remain neutral with the children about the other party in the
interest of preserving long term unity within the family unit.
JOSBPH AND AHN ZINOBILB
SBPARATION AND SUPPORT AGREBKBNT
4. MARITAL HOMB: HUSBAND agrees to allow WIFE access to the
marital home with 24 hours of a request to obtain items of a personal
nature, or agreed upon property during the separation period. WIFE
agrees to notify HUSBAND and request permission before entry into the
Marital Home during this period.
5. TAX MATTBRS: HUSBAND and WIFE agree that they will file
1993 income taxes jointly with their accountant of record during this
period. Both parties agree that they each will have access to copies
of the tax return independently from their accountant.
return will be considered a joint asset of the parties.
The tax
6. HEALTH COVBRAGE: HUSBAND agrees to maintain the premiums
on the current health insurance for both parties during this period.
HUSBAND further agrees that should a lapse of coverage occur for any
reason he will notify WIFE within 24 hours of the lapse.
7.
INTBRFBRENCB:
Each party shall be free from the
interference, authority and control by the other, accept as may be
necessary to carry out the provisions of the Agreement.
Neither
party shall molest or attempt or endeavor to molest the other, nor in
3
.... .'-"".'..'"
."f~;~_
4
JOSEPH AND ANN ZINOBILE
SEPARATION AND SUPPORT AGREEMBNT
any way to harass or malign the other, nor in any other way interfere
with the peaceful existence, separate and apart, of the other.
8. ASSBT TRANSFERS: Both parties agree that neither party,
without the agreement of the other, will transfer, encumber, conceal,
or in any way dispose of property during the terms of this Agreement.
9.
DBBTS:
HUSBAND and WIFE also agree not to incur any
further debts or obligations for which the other may be liable,
without full written knowledge of the other party, except as may be
necessary for the maintenance and upkeep of the current rental
properties owned by the parties.
10. LEGAL REPRBSBNTATION: HUSBAND and WIFE acknowledge that
each has had the opportunity to review this document with independent
counsel of his or her choosing or has waived such right to do so and
acknowledge that they fully understand the legal impact of this
agreement, and further intend to be legally bound by the terms of
this Agreement.
,... -'........,
5
JOSEPH AND ANN ZINOBILB
SEPARATION AND SUPPORT AGREEMENT
Both parties acknowledge that neither ANOTHER PERSPECTIVE
ASSOCIATES nor any person employed by or working for ANOTHER
PERSPECTIVE ASSOCIATES is licensed to practice law.
Both parties further declare that they are executing this
agreement freely and voluntarily, and that they acknowledge that this
Agreement is fair and equitable and is not the result of any fraud,
coercion, duress, undue influence or collusion.
11. OTHBR FINANCIAL ISSUES: HUSBAND and WIFE further agree to
the following issues during the terms of this agreement:
11 (A).
MEDICAL RECEIPTS: WIFE will provide HUSBAND with all
medical receipts in her possession on a regular basis so that
HUSBAND may apply for reimbursement. The monies received will
be considered joint marital assets.
11 (B).
FAMILY DEBTS: HUSBAND and WIFE agree that debts owed
to them from their two daughters, Louise Anne Chan and Amy Jean
zinobile will be paid to HUSBAND dur Ing the terms of this
agreement and are to be considered joint marital assets.
11 (C).
VEHICLE - VAN: HUSBAND and WIFE agree that should the
Van solely, owned by WIFE, be sold during the terms of this
agreement, the proceeds will be considered joint marital assets.
6
JOSBPH AND ANN ZINOBILB
SBPARATION AND SUPPORT AGRBEMBNT
11 (D).
HARRIS ASSOCIATION BANK ACCOUNTS: HUSBAND and WIFE
further agree that neither will withdraw, transfer, or conceal
funds from any jointly owned accounts located at Harris savings
Bank during the terms of this agreement without the permission
and full knowledge of the other party.
12. MISCELLANBOUS: HUSBAND and WIFE further agree in good faith
to submit future disputes concerning the issues addressed in this
Agreement that they are unable to resolve privately to a mediator or
mental health professional before they seek recourse from the courts
except in emergency conditions.
IN WITNESS WHEREOF, the parties hereto, intending to be legally
bound hereby, have hereunto set their hands and seals the day and
year first above written.
.( tlLLL:a nc.LJ
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~ P. JOSEPH ZINOBILE
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BILE
ANN F.
7
JOSBPH AND ANN ZINOBILB
SEPARATION AND SUPPORT AGREEMBNT
COMMONWEALTH OF PENNSYLVANIA
OF Ct<-rtkl!l{id
.
.
SS.
COUNTY
.
.
ON THIS, the /bUc day of" ~/VJl2;G , 1993, before me, a
Notary pUblic, the undersigned offic r, personally appeared P. JOSEPH
ZINOBILB, known to me (or satisfactorily proven) to be the person
whose name is subscribed to the within instrument and acknowledged
that he executed the same for the purposes therein contained.
p.~~
P. JOSEPH tl'INOBILE
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
, IJJ)LutrJUJ
NOTARY
( SEAL)
My coromission Expires:
NocariaJ SolI
~A~PlCIc
y\'c.....~'~Aug2S,~
8
JOSBPH AND ANN ZINOBILB
SBPARATION AND SUPPORT AGRBEMBNT
COMMONWEALTH OF PENNSYLVANIA :
COUNTY
OF Can ,IdJfl ~Ltj..
.
.
SS.
ON THIS, the ~ day of \, ~:Jf'bA1i:;eJ!., , 1993, before me, a
Notary pUblic, the undersigned off16er, personally appeared ANN F.
ZINOBILB, known to me (or satisfactorily proven) to be the person
whose name is subscribed to the within instrument and acknowledged
that he executed the same for the purposes therein contained.
,-7
G~/:-2....JJ3
ANN F. ZIN61;i.'E--~-'
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
,
( SEAL)
Expires:
NolanaI Seal
IleYeott A YMlvnl. IIIoIarv PIA*:
~tshllll Bao,Ctrnbedinl~
~ r.~ ExIli8sAug 2S. 1997
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CLECKNER AND FEAREN
ATTORl!IEYS A"# LAW
11 NORTH IECOND ITA lET
HARRISaURG. PENNSYLVANIA 17101
, ,~
INCOMB AND EXPENSE STATEMBNT OF
ANNA ZINOBILB
Employer: None
Address:
Type of Work:
Payroll Number:
Pay Period (weekly, biweekly, etc.):
GROSS PAY PER PAY PERIOD:
Itemized Payroll Deductions:
Federal Withholding:
Social Security:
Medicare:
Local Wage Tax:
State Income Tax:
Retirement:
Savings Bonds:
Credit union:
Life Insurance:
Health Insurance:
Other: (specify)
NET PAY PER PAY PERIOD:
OTHER INCOME:
Week
Month
Year
Interest* $
Dividends
Pension
Annuity
Soc. Sec.
Rents
Royalties
Expense Acct.
Unemploy. Compo
Workmen's Compo
$
$
TOTAL OTHER INCOME:
$
TOTAL MONTHLY NET INCOME:
$
*Please see attached for estimated interest income.
I
EXHIBIT
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EXPENSBS
Weekly
Monthly
Yearly
HOME:
Rent $
Maintenance
UTILITIES:
Electric
Gas
Oil
Telephone
Water
Sewer
Garbage
BMPLOYMENT:
Public
Transportation
Lunch
TAXES:
Real Estate
Personal Prop.
Income
INSURANCB:
Homeowners
Automobile
Life
Accident
Health
Liability
AUTOMOBILB:
Payment (l)
Payment (2)
Fuel
Repairs
MBDICAL:
Doctor
Dentist
Orthodontist
Hospital
Medicine
Special Needs
glasses
dental work
EDUCATION:
pri vate school
Parochial
College
Religious
335.00
$
$
36.00
40.00
32.00
95.00
256.33
350.00
60.00
40.00
630.00
70.00
190.00
60.00
l25.00
l,500.00
2
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.
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Weekly Monthly Yearly
PBRSONAL:
Clothing 1,000.00
Food 50.00
Barber/hair 30.00
Dry Cleaning/
Laundry
CREDIT PAYMBNTS:
Credit card
Charge acct. 75.00
Memberships
LOANS:
Private Loan
MISCBLLANEOUS:
Household help
Child care
Papers/books/
magazines 30.00
Entertainment
Pay TV 9.00
Vacation 2,000.00
Gifts l,500.00
Legal fees l50.00
Chari table
Contributions 75.00
Other Child
Support
Alimony
payments
Lessons for
children
OTHER:
Furniture 2,000.00
Counseling l50.00
TOTAL EXPENSES:
$
50.00
$ l,323.33
$
9,5l5.00
TOTAL MONTHLY EXPBNSBS:
$ 2,232.75
JLL:bh
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BSTIMATED INTBRBST INCOMB
OF
ANNA ZINOBILB
Marital funds withdrawn by Anna Zinobile:
DATE
BANK
AMOUNT
August 3, 1993
March 4, 1994
April 8, 1994
Dauphin Deposit
PNC
Harris
$ 48,476.00
76,363.85
8,449.00
Total
$133,288.85
20,200.00
Less tax payment on capital gains
$113,088.85
Estimated interest income from remaining balances:
BANK
BALANCE
~
2.37%
2.27%
MONTHLY INTEREST
Meridian
Fulton Bank
$23,562.23
57,363.85
$ 46.00
l08.00
$154.00
ZINOBILB - RBTIREMBNT FUNDS AND INSURANCB POLICIBS
NAME AMOUNT BENEFICIARIES
1. Oppenheimer Funds $ 66,866.49 P. Joseph ZinobUe
Ann F. ZinobUe
IRA
2. Oppenheimer 382,644.09
P. Joseph Zinobile
IRA
3. T. Rowe Price Trust 3,184.19
Co. - 400869798-7
P. Joseph Zinobile
IRA
4. T. Rowe Price Trust l,395.59 P. Joseph Zinobile
Co. - 400869800-9
Ann F. Zinobile
IRA
5. Northwestern Mutual 3, l71.26
Life - V9882752
P. Joseph Zinobile
IRA
6. Federal Kemper Life 3,260.11
Assurance Co.
FK0766590
P. Joseph Zinobile
IRA
7. Northwestern Mutual l7,3l3.75 17% to Sister -
Life Policy cash value remainder to
9864837 74,430.00 children equally
P. Joseph Zinobile death benefi t
8. Northwestern Mutual 14,870.40 l7% to Sister -
Life Policy cash value remainder to
9452181 49,233.00 children equally
P. Joseph Zinobile death benefit
9. Northwestern Mutual 3,l71.27 P. Joseph Zinobile
Life - V9882736
Ann F. Zinobile
IRA
10. Central Life Unknown
Assurance Co.
2535040
P. Joseph Zinobile EXHIBIT
I '"
_/I ,c..
ANNA M. ZINOBILB
Plaintiff
V
P. JOSEPH ZINOBILB
Defendant
, IN THE COURT OF COMMON PLEAS OF
I CUMBERLAND COUNTY, PENNSYLVANIA
I
I NO. 1255 CIVIL 1994
I
, CIVIL ACTION - LAW
I IN DIVORCE
.
.
IN REI SUPPORT
BEFORE SHEELY, P.J.
MEMORANDUM OPINION AND ORDER OF COURT
A Hearing was held on June 8, 1994, on wife's petition for
special relief. Her petition seeks two areas of relief.
(1) Requiring husband to continue wife as the beneficiary
on two North Western Mutual Life insurance policies and on an
Oppenheimer I.R.A. having a balance of approximately $382,000.00.
(2) Alimony pendente lite, counsel fees and expenses.
Findings of Fact
1. The parties were married on November 28, 1953 and
separated about August 5, 1993, when wife left the marital home.
Wife is sixty one years of age and he is sixty four years of age.
2. Wife filed a complaint in divorce on March 14, 1994.
3. Both parties are retired.
4. On September 16, 1993 a separation and support agreement
was signed by husband and wife. As to support, husband agreed to
pay wife $1,500.00 a month for a four month period.
5. Wife resides with a daughter. Husband resides in the
marital home.
6. Husbands' income is as follows:
a. Social Security - $765.00 a month
~"OW\
b. Net ~Rents - $190.00 a month
c. Income from Oppenheimer fund and withdrawals from
principal.
/
7. Husband's 1993 Federal Income Tax Return was not
produced at the hearing since he was granted an extension.
8. Wife's income is solely from interest from bank
accounts. She does not receive Social Security.
9. After separation, wife withdrew the following amounts
from jointly-held bank accounts.
a. - August 3, 1993
b. - March 4, 1994
c. - April 8, 1994
$48,476.00
$76,363.88
$ 8,449.00
10. Remaining from these three withdrawals is approximately
$80,000.00 and monthly interest is $154.00 a month.
11. Wife has paid her attorney a $2,000.00 retainer and
counsel charges are $90.00 an hour. Several hundred dollars
oio
remained that ~ retainer at the time of the hearing.
12. Other major assets of the parties are:
a. Marital home -
jointly-owned
b. IRA - wife -
$155,000.00
$ 66,866.49
$382,644.09
c. IRA - husband -
d. Realty jointly-owned $ 52,500.00
in Dauphin County
e. Husband - bank account
now solely in his
name, approximately $146,000.00
~\Sc..U'::o~IC~
Only the cash surrender value of life insurance policies can
be considered marital property. ~indsev v. Lindsev, 342 Pa.Super
72, 78 (1985). The cash surrender values of the two policies in
this case totals approximately $32,000.00 The death benefit of
the two policies totals approximately $123,000.00. In Lindsev.
sUDra., Footnote 3 on page 78 provides:
"We do not, by this decision, hold that the lower court did
not have the power to order Mr. Lindsey to maintain Mrs. Lindsey
as the primary beneficiary of the two policies."
A more recent decision of the Superior Court has held under
the peculiar facts of the case that the lower court did not have
the authority to order a wife be redesignated as beneficiary on
her husband's insurance policies. In Geraahtv v. Geraahtv, 411
Pa. Super. 53 (1991), Mr. Geraghty went in the hospital on June
9, 1990 and his death was imminent and known to the court. A
hearing was held on wife's petition for special relief on June
29, 1990, following which the court ordered Mr. Geraghty to
redesignate his wife as the beneficiary. The order gave him
seven days to comply. Mr. Gerlhty died before the seven days
expired without changing the beneficiary. His executor appealed
"''''tit.
~ a denial of reconsideration by the lower
reversing the lower court, the Superior Court
court. In
~.,.llo"I''''b
661d tl...1.g un
1.'8!f8
~
"Due to Mr. Geraghty's
impending death, it was extremely
unlikely that any further action
could or would be taken regarding
either a divorce decree or the
economic claims. Thus, the trial
court's order cannot be construed
as an attempt to preserve martial
property for future equitable
distribution because it was
apparent that no future proceedings
would ever occur. When viewed in
this context, the trial court's
directive that appellee be
reinstated as the beneficiary
cannot be interpreted as anything
other than a distribution of the
life insurance proceeds and pension
benefits to appellee. Because a
permanent distribution of marital
assets prior to the entry of the
divorce decree violates the
provisions of the Divorce Code, the
trial court's order must be
vacated."
G.\.It,.C.~"1 IW C.O, <<.00 ".1..0 "''T \1.(,It-,
, '
,.
ANNA M. ZINOBILE, . IN THE COURT OF COMMON PLEAS
.
plaintiff . CUMBERLAND COUNTY, PENNSYLVANIA
.
.
.
v. . NO. 1255 CIVIL 1994
.
.
.
P. JOSBPH ZINOBILE, . CIVIL ACTION - LAW
.
Defendant . IN DIVORCE
.
AKSWBR TO PETITIOR ~OR SPECIAL RELIE~
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5.
Admitted.
Undersigned counsel hereby enters his
appearance.
AKSWBR TO RULB TO SHOW CAUSE
WRY SPBCIAL RELIB~ SHOULD ROT BE GRANTED
6. The averments set forth in paragraphs 1 through 5 of this
answer are incorporated herein by reference.
7. - 15. The defendant has established retirements accounts
both in his own name and in the name of plaintiff. The identity
of these accounts is set forth on the defendant's inventory, a copy
of which is attached. Copies of the most recent statements for the
accounts identified are also attached.
WHEREFORE, defendant requests that plaintiff's Rule to Show
Cause by dismissed.
HSwn TO PIlTl:Tl:ON !'OR BIllARINO ON ALl:1I0HY
16. The averments set forth in paragraphs 1 through 5 of
defendant's answer are incorporated herein by reference.
17. Defendant is without knowledge or information sufficient
to form a belief as to the truth of the averments set forth in
paragraph 17 and said averments are therefore denied.
18. Denied. Plaintiff has, since the time of separation in
August of 1993, withdrawn from jointly held bank accounts at PNC
the sum of $76,367.85; from Dauphin Deposit Bank the sum of
$48,000; and from Harris Savings, the sum of $8,453.91. These
funds are adequate to cover her needs during the pending litiga-
tion.
19. Admitted in part and denied in part. Defendant currently
receives a monthly pension from Social Security in the amount of
$763.00. Defendant manages two rental properties located at 3432
and 3432A Walnut Street, Harrisburg. Defendant also receives
income from a rental property located at 529 Catherine street,
Harrisburg. Gross rent is $550,00 per month. Gross rents are
$460.00 per month for 3432 Walnut Street and $255.00 per month for
3432A Walnut street. Defendant is not receiving any rental
payments trom the property located at 3432 Walnut street and has
tiled an eviction action against the tenant. Approximately 15' of
these amounts can properly be attributed to defendant as income.
Defendant also receives $2,750.00 per month in principal and
interest from the Oppenheimer Global Fund previously identified.
20. Admitted.
21. Admitted.
WHEREFORE, defendant requests that plaintiff's petition for
alimony pendente lite be dismissed.
_/
-' / '
Timoth}\ J.
Turner nd 0
258 Nor eet
P. O. Box 1123
Harrisburg, PA 17108
(717) 232-4551
Attorney for defendant
c.
'-
Verification
I verify that the statements made in the foregoing Answer are
true and correct. I understand that false statements herein are
made sUbject to the penalties of 18 Pa. C.S.A. section 4904
relating to unsworn falsification to authorities.
Date: May 16, 1994 ~
Certificate of service
I certify that I served a true and correct copy of the
foregoing Answer to Petition for special Relief by depositing the
same in the United states mail, first class postage prepaid,
addressed as follows:
Jennifer L. Lehman, Esquire
Cleckner and Fearen
31 North Second Street
Harrisburg, PA 1
Date: May l7, 1994
~ '~'.'..'
.
m OppenheimerFunds...
Consolidated Statement,
Janulll'/ 1. 1994 through Marcil 31. 1994
FIDN TR IRA ROLLOVER
FBD P JOBEPH ZINOBILE
418 CANDLEWYCK RD
CAUPHILL PA 170".8425
OUIIUonl?
Callth85e numbers Mondav,Fndav. B:3Da.m,'8:00p,m,
and Saturday, 10:llOa.m,.2:00p,m. ET
. Cuslomer S8IVlOO: l.aoo.525.7048
. Telephone TranlaCtJons: 1-800-852-8457
. TOO Heanng/Speech Impaired: l.aoo.843-<<61
Callthll number 24 houri a day. 7 days a week
. PhoneLmk: 1.800-533-3310
TupaYlIlD Numbtf: 1ll8-2().5430
ReUrement accounts........................ .$382,644.09
Your Rlp/luntIUvl:
ZINOBILE P JOSEPH
G A PHELPS & CO INC
416 CANDLEWYCK RD
CAMPHILLPA 17011-8425
Totll Mlrk.t Vllu. I' 01 Mlrch 31,1994
Your Portlollo
ReUremen' accounla
I\Ild name ACCOunt nwnblf SharlS owned shar. pric. mark.t valu. lit 01 ,ttirem",t aceta.
MONEY MARKET 2002003223869,..,.""",." .96.845,450......""."" ,$1 ,00"...,..,.", .$96.845.45....,.,",... .25,3'11I
STAAT INCA 2302301940169,..,."..""", .5.412.000..........."., ,$4,93..,..,....... .$26,681 ,'6,....,...,..., ,7,0'11\
ASSET ALOCA 2402400306592.".,.."..",.. ,2.173,962..,...,.",.,. .$12.55",..,,""" .$27.283,22.,.., ......". ,7,1'11I
GLOBAL A 3303300909667,."...,......" ,5.742,118""",.,.",. ,$35.90.,.,."".., ,$206.142.04.,... ......., ,53.9'11I
GLOB BIOTECH 7507500591646""",.,.".". ,'.228,705..""""", ..$20.91...,.""... ..$25.692.22..... ,..,.... ..6,7'11I
$382,644.09 100.0'11I
Ye.r.to-O.telnve.tment Summlry
See the bade at thiS slalemenl fo< an explanabon of the types of aCbVlly induded In thiS Sedlon,
ReUremen' accounla
hnl name accounl numb.. p..cha.os/roinvostmonl. roclompbon. divilond. Iong,lonn copiIol gain.
MONEY MARKET 2002003223869"""."..",.,.. ,$553,66.....""",.." ,none"",...,......, ,$553,86.,.., ......'" ,none
STAATlNCA 2302301940169,."".""",.", .$573,32..,.."".,.",. ,none",..,.,. ....... ,$573.32. ,.." .....", ,none
ASSET ALOCA 2402400306592,.""..""""" ,$190,01.....",.",.,. ..none",..".,.."... ,$190,01.,.... ,,,.,,. "none
GLOBAL A 330330091)96~7" """"""". ,none.."""...., ..$10.00...,......".....,. ,none,..,........,. ,none
GLOB BIOTECH 7507500591646."""."..,.".",. .none...........,.", .none.....".,.......... .none..."".""., ,none
All infoonabon on this slatemenl is as of Marcil 31. 1994.
Please do nol use these figures to< lax purposes, We'l be sending you complele lax infoonabon al vear-end,
FUND OPPENHE IfolER G,LOBAL FUND A
STATEMENT OF ACCOUNT AS OF 02/04/ B4
TAX 1.0, OR SOC, SEC. NO, 210-24-5973
ACCOUNT NUMBER 330 3300909834
SHARIHOlDfR
~i2N~~i:~~~~!~~~R
CAHPHILL PA l7011-8425
TRAN :,fTlON TVPE OF TRANSACTION
BALANCE FORWARD
020494 1994 ANNUAL FEE
OLLAR AMOUNT
If TA" A :TI
10100
I
1
I
I
I
I
I
I
,
I
I
1
I
,
I
!
I
,
lflJOppenheJinelfilnds..
DEALER NUMBER 1390 38 000& '
REP. NAME Z I NOB I LE P JOSE PH
A. e. NUMBER 48 B 20
,',..,
~ ~ .
orAllR
G R PHELPS & CO INC
416 CANDLBWYCK RD
CAHPHILL PA 17011-8425
~HAR
3'05
I
I
I
SHARES THI
fAA A TI
1256-
I
I
,
I
I
1
I
I
i
!
I
I
.
I
I
,
I
17125B6
1712330
DISTRIBUTION DIVIDENDS/SHORT"TERM CAPITAL GAIN LONG-TERM CAPITAL CiA INS CERTIFICATED SHARES BOOK SHARES
OPTIONS , 000 1 7 1 2 , 330
YEAR-TO.OATE DIVIDENDS yEAR-TO.OATE LONG. TERM TOTAL YEAR-TO.OATE
CAPITAL QAINS DISTRIBUTIONS
SO.OO SO,OO SO,OO SO.OO
PLEASE RETAIN THIS STATEMENT AS A RECORD OF YOUR TRANSACTIONS. PLEAse 00 NOT USE THE ABOVE FIGURES FOR TAX PURPOSES.
FOR THE I-YEAR PERIOD ENDED 12/31/93e OPPENHEIMER GLOBAL FUND A'S
!~~fi~l~aTW~7N~:~T~~N'3~F ~t~Egle7D~~DSC~~~G~A~7T~~TG~f~~TDY~~W~BU-
TIONS,
SEE RE'o'ERSE SLOE 'OR ADDITlO~AL llll'ORWATlOPt
Oppenheimer Global Fund A
TO MAKE AN ADDITIONAL PAYMENT:
PLEASE COMPLETE THIS STUB AND RETURN IT WitH YOUR CHECK MADE PAYABLE TO THE
FUND LISTED ABOVE. MAil STUB AND CHECK TO P.O. BOX 1731172. DENVER. CO 80217-3172.
FIDN TR IRA ROLLOVER
FBO ANN F ZINOBILE
416 CANDLEWYCK RD
CAMPHILL PA 17011-B425
66B66
INDIVIDUAL IRA/SEP CONTRIBUTIONS
o 19 CURRENT YEAR IRA $
EMPLOYER PLAN CONTRIBUTIONS
o SEP'IRA. PENSION OR PROFIT
SHARING EMPLOYER S
O FOR CHANGE OF ADDRESS, CHECK THIS
BOX AND FILL OUT REVERSE SlOE.
o 19 PRIOR YEAR IRA
o 19_ ROLLOVER IRA
s
EMPLOYER CONTRIBUTIONS ARE NOT
REPORTED BY THE TRUSTEE TO THE
IRS.
s
00]1]85
1 02104194
330 33009096340
""'~ORTANT'RE"'N FOR YOUR FILES
December 31, 1993 1993 Year-End Statement
(!~~~~I.
T, Rowe Price
P,O. Box ll9lXXl
Ballimore MD
2l289.o22O
TeJe"Accts5
1 (BOO) 638-2.587
Customer Service
1 (BOO) 225-5132
Account Number
400869798-7
Use !his (onn
to invest in:
Account Number
400869i98.7
1",111",111""..11".111.,1,.1"1"1,1,1,1,,,,11,1',,.1.,11
T Rowe Price Trust Co
Cust For The IRA Of
P Joseph ZlnobUe
416 Cindlewyck Rd
Camp Hill PA 17011-8425
o
i
This sta~ment includes dividend and/or capital gains totals for 1993. PIeese be aware the, we are
required to report your y.ar-end IRA accoun' value to the IRS. Have a heppy and he&llhy 1994.
International Stock
u.,/lr Dumption
Sh.rrt
PrIce
Sloma
Sloma Owrud
25lS.488
255,634
257.566
259,068
261.858
2111.858
IIi:i
E!E
11m
IiliE
~
IEliE
~
EEl
Eli
I!l!!!B
-
-
NIoIllt
. 2,271,Ot
10,00
23,01
17,89
33,23
13,184.10
. 8.80
12,13 0,824
11.91 1.932
11.91 1.502
11.91 2,700
. 12.18
1(1/93
12117/93
12122193
12122193
12122193
12/31/93
Beglnnln9 Balance
1993 Administrative Fee
Dividend Relnvesl ,09
Shomerm Cg Rein ,07
Reinvest Cap GoIn ,13
ending eala....
Year.tooale dlvld.nds and
capital gains
$ 74,13
Your date of birth: July 24, 1929
Primary Ben.tidaIy: Plu... provid..
International Stock
Make your check pdyable to th. Fund, wril. your account number on th. check, and maU to:
T, Rowe Price, P,O, Box ll9lXXl, B.ltimore, MO 21289.1500,
TRow. Price Trust Co
Cust For The IRA 01
P Joseph Zinobile
416 C.ndlewyck Rd
Camp Hill PA 17011-842S
Contribution 1$
Amount
for tn ye..
(Mlnlmuln $SO)
Non.Oeductlblel$
Amount
To correct your n.me, .dd...., beneficiary designalKm, or d.l. of birlh, check the box below
.nd compl.te Ihe reverse side,
IMPORT ANT 'RE T"N FOR YOUR FILE 5
December 31.1993 1993 Year-End Statement
I!~O~'L
T, Rowe Prb
P,O, Box ll'JOOJ
Balllmore MD
212fl9.022D
Tele.Accns
1 (1m) 638-2587
Cuslomer Service
1 (800) 225-5132
Account Number
400!69800-9
Use this fonn
10 invest in:
Account Number
400869800.9
1."111."111",,"1,,.,111..1.,1,.1.,1,1.1.1.,,,11.11..,1.,11
T Rowe Price Trust Co
Cust For The IRA 01
Ann F ZInobUe
416 Candlew'l.ck Rd
Camp HUI P 17011-&125
~
1:4
~
ihls slatementlncludes dividend and/or capital gains totals lor 1993, Please be aware tho, we are
required to report your year-end IRA account value to the IRS, Have a happy and healthy 1994.
International Stock
DlJIe DuafpdOll
AnrmIn'
. 1,003,38
10,00
10,08
7,84
14,57
. 1,3lI5,II8
ShAre
Prla
.8,89
12,13
11.91
11.91
11.91
.12.18
0,824
0,846
0,658
1,223
SIunu
SIunu Owfred
112.eee
112,042
112,888
113,546
114,769
114.7eII
111193
12117193
12122193
12122193
12122193
12131193
Beginning Ilalanca
1993 AdminiS1raUve Fee
Dividend RelnveSl ,09
ShO<1term Cg Rein ,07
Relnvest Cap Gain ,T 3
Ending Balance
Year.to-date dividends and
capital gains
Your dale 01 birth: November 2. 1932
Primary BenefidaJy: Ple.se provide.
$32.49
International Stock
Malee your check payable to the Fund, wrile your account number on the check, and mall to:
T, Rowe Price, P,O, Box ll'JOOJ, Baltimore, MD 21289-1500,
T Rowe Price Trust Co
Cust For The IRA 01
Ann F Zinoblle
416 Candlewyck Rd
Camp HUI PA 17011-842.~
Contribution Is
Amuunt
lor Lu year
(Minimum SSO)
Non.Deductlble Is
Amount
To correct your n.me, address, beneficiary designatinn, or date of birth, check the box below
and complete the reverse .ide,
==
I!i!E!
--
===
-
~
Em
~
iiii
.........
........
Bliiii
~
Il!!!!!!!
~
_.,-"~~',,",,
Variable Annuity
Confirmation Statement
Northwes.tern
MUtual Lite"
072
P Joseph Zinobile
416 Candlewyck Rd
Camp Hill PA 17011
Contract Number: V98827S2
Individual Retlremen' Annuity (IRA)
Annuitant: P Joseph Zlnobile
Transaction
,'Effective date April, '15,1994
"Anhual contractservlce fee
Purchase( +) or Redemption(-)
..,.SelectBorid.Fund'
'iBatance<l FUnd , ,
<Index sOil Sloc!(Fund
',TotaL'"..
'.:" ".~..'/'" .
Unl's
Unit Value
Contrac' Value
~1.91
-2.96 '
~6.95' '
$5.23
3.37.
1.43
,-$10.00. '
'7W.00
/ ~10;00
,:,$30;00 "
.(;:.:e.,
..".........-.-;..,;.-,...,
.,,,,,:,.'.
;,~<',>::<:.:..
."',-
Contract Value By Fund (after transaction)
Select Bond Fund ,
Int.em~t1onal Equity Fund .
Money Market Fund
Balanced Fund '
, Index 500 Stock Fund
ARRresslve Growth Stock Fund
Total
Unl's
Unit Value
Contract Value
194.28
$5.23
1.21
2.02
3.37
1.43 '
1.88
$1,017.28
0,00
, 0.00
1,096;81
1,057.17
0.00
$3,171.26
324.79,
734.76
Thank you for choosing a Northwestern Mutual Annuity. If we can e of service in any way, please con'act
Your Agen':
Donald E Failor, ClU
PO Box 1751
Harrisburg PA 17105
(717) 238.6868
OR General Agency:
Pres'on J Turner, CLU,ChFC
PO Box 1962
Harrisburg PA 17105.1962
(717) 257.4100
look for tree new Varia e Annuity Funds coming In Mayt Information to follow
with May 3, 1994 prospec'us.
Include\ ",1l1ranuctlon\ proceurd pllOf 10 lh~ pflntlng dale of 04117/94
Tht' Northwc~t('rn Mutualliie Imur,lOce Comp.)n\" ;".'!O [.'''1 \Vi'iconsin A"enut,', ,\\d.......lul..t'l... \\,153202.4797' .$14271.1444
KEMPER LIFE INSURANCE COMPANIES
Federal Kemper Life Assurance Company
Fidelity Lite Association, A Mutual Legal Reserve Company
Long Grove, IL 60049 . 708/320-4500
.' ,
:~
I .
January 4, 1994
P Joseph Zlnoblle
416 Candlewyck Rd
Camp Hili PA 17011
Re: Annuity Policy Number: FK0766590
Plan: FPDA2 IRA
Issue Date: 04/23/1987
Dear Annuity Pollcyowner:
We are pleased to reporlthe fair market value of your Federal Kemper Life Assurance Company (FKLA) annuity
as of December 31. 1993.
ANNUITY PURCHASE/FAIR MARKET VALUE ON 12131/93 = $ 3,260.11
This notice contains Information Identical to tha' furnished. by law, to the Internal Revenue Service on form 5498.
You may wish to re'aln this Information wl'h your tax returns or with your policy,
The value of your annuity Is a stron9 testament to the Imporlance of financial planning for Ihe future, But your
plan's value goes beyond future Income, It extends many advantages right now, Including: 'ax deferral, a
minimum Interest rate guaranteed for the life 01 your con'rac', and a choice of payout options that Includes a
lifetime Income,
Purchasing your FKLA annuity was a prudent decision, With a changing economy, your needs may also change.
This might be an opporlune time to determine If adding '0 your existing annuity (If allowed by law), or starling
another annuity would be another wise decision.
Please remember you have access to 1-800-876-5429 for au'oma'ed Information Including current values, If you
would life Information on other annuities or lIIe Insurance. please call us a' 708.32D-45oo.
If you would like assls'ance In any of these areas. contact your local FKLA representative,
Your FKLA Annuity Service Team
1it.cI-ll4
INVENTORY AND APPRAISEMENT
OF
P. Ja>EPH ZIOOBILE
P. Joseph Zinobile
files the following
inventory and appraisement of all property owned or possessed
by either party at the time this action was commenced and all
property transferred within the preceding three years.
p, ,1""lf>.ph 7.;nnhilp
verifies
that
the
statements made in this inventory and appraisement are true
and correc t .
P. Joseph Zinobile
understands that
false statements herein are made subject to the penalties of
18 Pa.C.S. S 4904 relating to unsworn falsification to authori-
ties.
.4~~
X L
( X 2.
( X 3.
( 4.
X 5.
( X 6.
( 7.
( ) 8.
( 9.
.
ASSETS OF PARTIES
Real property
Motor Vehicles
Stocks, bonds, securities and options
Certificates of deposit
Checking accounts, cash
Savings accounts, money market and savings
certificates
Contents of safe deposit boxes
,Trusts
Life Insurance policies (indicate face value, cash
surrender value and current beneficiaries)
)10. Annuities
(
(
)lL
)12.
Gifts
Inheritances
)13. Patents, copyrights, inventions, royalties
(
(
) l4.
) 15.
( )16.
" ( ) 17.
( )18.
( X )19.
)20.
) 21.
)22.
)23.
)24.
)25.
Personal property outside the home
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TURNER AN!) O'CONNELL
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CLECKNER AND FEAREN
ATTORNE:YS AT LAW
RICHARD W. CloItCKNE:A
MICHAEL. IRA LEVIN
P. DANltL ALTLAND
DtNN'. J. IHATTO
ANN C. AHOADG
'TUAAT L. KNADt
ROBCRT W. WAtOEA
"'ICHACL W. JONt_
DAYID w. BROWN
.JENNIFER L. LitH MAN
DEBORAH .I, NATHAN
MARC'. LEVIN
31 NORTH SECOND STRtET
P. O. BOX Ile..7
HARRISBURG. PE:NNSYLVANIA 17108-1847
f71?1238-'731
MONTQOJ04CAV COUNTY O"'ICC:
WIl.l.OW GROve PLAZA
BUITt 1000
101 YORK ROAD
WILLOW OROVC, PA .80ao
IltlU ..7".UI'.
F'AX' 1717' 238'8481
'AX: 1118'887.01:'8
May 17, 1994
0" COUNseL
WILLIAM "CAREH
Timothy J. O'Connell, Esquire
258 North Street
Harrisburg, PA l7l0l
Re: Anna M. Zinobile v. P. Joseph Zinobile
No. l255-civil-1994
Dear Tim:
This will confirm our telephone conversation of Monday, May
23, 1994, wherein I informed you that upon Judge Sheely's request,
the APL hearing in the zinobile matter has been moved to Wednesday,
June 8, 1994, at 9:30 a.m.
Also, you advised me that you would be sending all of the
information concerning the marital assets within two or three days.
My client intends to move forward on the issue of the beneficiary
designations. Perhaps we can consolidate the two issues for
hearing on June 8.
I look forward to receiving the asset information in the near
future.
Sincerely,
CLBCKNBR AND FBAREN
ytiV.,ttj.t-V{ .1/",K4.-f-j
Jennifer L. Lehman
JLL:bh
cc: Hon. Harold E. Sheely
Mrs. Anna M. Zinobile
, '
-".~..
JAMES H. MNEll
IIotOlHY J, O'COtHll
IlWf! p, !WI
I(lH L \YHIEAS'
TURNER AND O'CONNELL
ATTORNEYS AT LAW
258 NORTH STRRET
P,O, BOX 1123
HARRI:iIlURO. PA 17108. 1123
~~
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00_
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FAX
717,2>>2116
. AIJO ADMTIlD WAIMNC
June 13, 1994
The Honorable Harold E. Sheely
Court of Common Pleas
cumberland county Courthouse
Carlisle, PA 17013
RE: Zinobile v. Zinobile
No, 1255 Civil 1994
Dear Judge Sheely:
Please find enclosed Defendant's post-Hearing Memorandum in
Opposition to Plaintiff's Petition for Special Relief.
TJO:sf
ell
Enclosure
cc: Jennifer L. Lehman, Esquire, w/enc.
ANNA M. ZINOBILE, . IN THE COURT OF COMMON PLEAS
.
PLAINTIFF . CUMBERLAND COUNTY, PENNSYLVANIA
.
V. NO. 1255 CIVIL 1994
.
,
P. JOSEPH ZINOBILE, . CIVIL ACTION - LAW
.
DEFENDANT . IN DIVORCE
.
DB~BNDAHT'S POST-HHARING MBMORANDUM IN OPPOSITION TO
PLAINTI~~'S PBTITION FOR SPBCIAL RBLIE~
~ACTS
On June 8, 1994, this Honorable Court held a hearing on
Plaintiff's Petition for Special Relief requesting both alimony
pendente lite and counsel fees and the designation of Plaintiff as
beneficiary of Defendant's pensions. Both parties filed briefs in
support of their positions prior to the hearing. Defendant files
this brief in response to the questions raised by this court at the
hearing on the issue of alimony pendente lite and counsel fees,
ISSUB
Whether a spouse who received $130,000 in marital assets and
owns a non-marital retirement fund valued at $67,000.00 is entitled
to alimony pendente lite and counsel fees for maintenance of her
divorce action from her husband's separate non-marital assets?
Suggested Answer: No.
ARGUMENT
"The purpose of alimony pendente lite is to sustain the
dependent spouse on an equal basis with the other spouse while he
or she maintains or defends a divorce action." Butler v. Butler,
423 Pa. Super. 530,
, 621 A,2d 659, 667 appeal aranted
Pa, , 631 A.2d 1002 (1993). Similarly, "[t)he purpose of an
award of counsel fees is to ensure that the financially depsndent
spouse will be able to maintain or defend against an action for
divorce, as well as to effectuate economic justice." IlL. A
spouse is not automatically entitled to alimony pendente lite or
counsel fees. Rather, the spouse must be the dependent spouse and
demonstrate need.
In the present case, the plaintiff made no showing that an
order of alimony pendente lite was necessary for her support. She
testified that she was living with her daughter and shared expenses
with her but plaintiff could produce no cancelled checks or other
evidence that she has ever paid anything, She further included in
her monthly expenses one-twelfth of $2,000 for a vacation she
intended to take as well as $1,500 for "gifts". She also admitted
that she has loaned to her children approximately $40,000 of the
funds she had withdrawn from the various marital accounts. It is
submitted that these facts do not present a compelling case for
establishing plantiff's need for additional support to maintain
herself during the course of the present action.
In Semasek v. Semasek, 331 Pa. super. 1, 479 A.2d 1047, rev'd
on other arounds 509 Pa. 282, 502 A.2d 109, (1984), the Wife had
the principal and the income from marital assets in excess of
$94,000 and rental income from jointly held properties during the
period pending the divorce. The Husband also paid the heat,
electric, telephone, and taxes on her residence and further
contributed $100 weekly to Wife. Both the master, the trial court,
and the pennsylvania superior Court denied Wife's claim for alimony
pendente lite. On appeal to the Pennsylvania supreme Court, the
court stated that the trial court correctly considered the large
amount of joint assets the Wife took under her sole control and the
interest that the joint funds Wife appropriated should have earned
and applied it toward her support. semasek, sUDra, at , 502
A.2d 113.
plaintiff's claim for fees and alimony pendente lite, like the
Wife's claim in Semasek, SUDra, is inappropriate, In the present
case, plaintiff has had the sole benefit of $130,000 of marital
assets and the sole benefit of any income accumulated on the
$130,000. In addition to the marital assets, she possesses a
retirement fund with a value of $67,000.00. with almost $200,000
in assets, Plaintiff clearly has the financial wherewithal to
support herself during the divorce action and pay her legal fees
for many years. Inasmuch as the pennsylvania Supreme Court in
Semasek denied alimony pendente lite to a Wife who possessed more
than $94,000 in marital assets, this Court should not grant APL to
plaintiff who possesses twice that amount. Accordingly, without
a demonstration of financial need this Court should deny
plaintiff's petition for counsel fees and alimony pendente lite.
The fact that plaintiff is using marital assets to maintain
her divorce action and pay legal fees rather than Defendant's sole
property is irrelevant. In Panaallo v. panaallo, 329 Pa. Super.
25, 477 A.2d 885 (1984), Husband initiated a divorce action and
Wife sought equitable distribution, alimony, alimony pendente lite,
and counsel fees. The trial court denied Wife's claims for
alimony, APL, and counsel fees and the superior Court upheld the
lower court's decision. In its opinion, the superior Court pointed
to the record which indicated that Hrs, Pangallo has secured
adequate funds from the cOUDle's savings to cover ~ needs during
the pending litigation and therefore is not entitled to APL and
counsel fees. Panaello, SUDra, at
, 477 A.2d at 889.
Plaintiff, like Mrs. Pangello, holds joint property and is
applying it for her sole support thereby depriving Husband of
marital property for equitable distribution. In light of the fact
that Plaintiff is using marital property to initiate the divorce
action and the fact she possesses more than sufficient marital
property and separate property to maintain her divorce action and
pay her attorneys' fees, Plaintiff's petition should be denied.
T . O'Conne re
25 street
Harrisburg, PA 17101
(717) 232-4551
Attorney for Defendant
certificate of service
I, Timothy J. o'Connell, hereby certify that I served a true
and correct copy of the foregoing Post Hearing Memorandum in
opposition to plaintiff's Petition for special Relief by placing
a copy thereof in the United states mail, first class postage
prepaid, addressed as follows:
Jennifer L. Lehman, Esquire
Cleckner and Fearen
31 North Second street
Harrisburg, PA 17101
Date: June 13, 1994
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TURNr,R ANo-O'CONNELL
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Y
ANNA M. ZINOBILE, . IN THE COURT OF COMMON PLEAS
.
plaintiff . CUMBERLAND COUNTY, PENNSYLVANIA
.
.
.
v. . NO. 1255 CIVIL 1994
.
.
.
P. JOSEPH ZINOBILE, , CIVIL ACTION - LAW
.
Defendant . IN DIVORCE
.
MEMORANDUM IN SUPPORT OP
DISMISSAL OP PLAINTIPP'S PBTITION
Paota
The present divorce action was filed on April 22, 1994. On
April 25, 1994, plaintiff filed a petition for special relief and
for alimony pendente lite. The petition alleges, and the defendant
does not dispute, that the parties are husband and wife and have
been separated since August 5, 1993, when plaintiff left the
marital home.
The first count of plaintiff's petition alleges that defendant
was self-employed during the course of the marriage and accumulated
a number of private pension accounts totalling almost $400,000.00.
The plaintiff maintains that these accounts are "vital to wife to
ensure her support, maintenance and/or alimony and equitable
distribution should Husband die during the pendency of this
action." (Plaintiff's petition, paragraph 5) Plaintiff requests
this court to order defendant to disclose the account numbers,
location and values of all pension accounts acquired during the
marriage and to maintain or reinstate wife as beneficiary on all
such pension accounts.
The second count of plaintiff's petition is a request for
alimony pendente lite and counsel fees, alleging her inability to
support herself and maintain the present divorce action without
support from defendant.
In his answer, defendant specified and documented the location
and balances in all the retirement and other accounts established
by defendant during the course of the marriage. Defendant also
filed with his answer the inventory of marital property required
by Pa. R,C.P. Rule 1920.33, The inventory reveals a number of
retirement accounts in both plaintiff's name and in the name of
defendant. In addition to the retirement accounts, the parties
also maintained during the marriage joint bank accounts from which
plaintiff has, since the date of separation, withdrawn more than
$130,000.00.
Issues
I.
Whether this court has the authority
under the Divorce Code to order the defendant
to designate plaintiff the beneficiary of
retirement accounts currently held in
defendant's name.
II.
Whether plaintiff, in light of the money
withdrawn from the joint accounts, can
demonstrate the need for further support from
defendant in order to maintain the present
action.
Arqument
I.
An order requiring the defendant to
designate plaintiff the beneficiary of
retirement accounts currently in defendant's
name would contravene the Divorce Code in that
it would constitute the equitable distribution
of property in the absence of a final decree
in divorce.
Plaintiff requests this court, pending a final decree and
distribution, to order the defendant to designate the plaintiff the
beneficiary of certain retirement accounts currently held in
defendant I s name. This request is made to assure plaintiff I s
ownership of these accounts should the defendant die during the
pendency of these proceedings. (See petition, paragraph 10)
While this court has the power to enter orders for special
relief and appropriate cases to prevent the removal or disposition
of marital property and to otherwise preserve marital property for
equitable distribution, the court clearly has no power to make
premature disposition of property claims. Geraahtv v. Geraahtv,
Pa. Super ___, 600 A.2d 1261 (l99l)i Kozloski v. Kozloski, 43
D & C 3d. 160 (Luz. 1987).
In Geraahtv v. Geraahtv, sUDra, the Superior Court held it an
abuse of discretion for the lower court to enter an order requiring
the husband (who was diagnosed with terminal cancer) to designate
his wife as beneficiary on two insurance pOlicies. The court held
that the order was an attempt ". . . to circumvent the provisions
of the Divorce Code by distributing some of the marital assets
prior to the entry of a final divorce decree." Geraahtv, 600 A.2d
at 1264.
Plaintiff in the present case requests this court to enter an
order requiring the defendant to designate plaintiff the
beneficiary of not merely of a life insurance policy (where the
contingent nature of the payment has raised some question as to its
status as "property,,1) but beneficiary of a substantial amount
currently existing assets. No claim is made by the plaintiff that
defendant intends to alienate or dispose of these funds prior to
final distribution in the divorce action or that the court's
intervention is required to preserve the existence of these assets.
The plaintiff instead is asking the court to order the defendant
to designate her the beneficiary of the accounts so that all the
funds would go to her in the event defendant's death causes an
abatement of the present action.
In the absence of such an order, plaintiff's rights would be
determined by the provisions of the probate code where she would
be limited to her statutory elective share of the estate. 20 Pa.
C.S.A. section 2204.
While it is understandable why plaintiff
would prefer ownership of the entire balance of these accounts to
her statutory share, there is nothing in the Divorce Code which
gives her this right. Indeed, it is submitted that an order such
1
(1985).
See Lindsev v. Lindsev, ____ Pa. Super ____ 492 A.2d 396
as the one sought here would clearly constitute a premature
distribution of marital property and is not authorized under the
Divorce code.2 See also Benz v. Benz, 38 D & C 3d t15 (Del. 1982).
II.
plaintiff has sufficient assets to
maintain the divorce action and support
these
herself during the pendency of
proceedings,
The separation of the parties took place after forty years of
marriage during which time substantial marital assets were
accumulated. Defendant is now retired from his insurance business
and draws $767.00 per month in Social Security benefits as well as
payments of both principal and interest in the amount of $2,750,00
per month from one of the retirement funds. These funds are used
for defendant's support and payment of expenses for maintenance of
the marital home.
plaintiff herself will become eligible for
social Security in November of this year.
For her part, plaintiff has withdrawn approximately
$130,000.00 from martial accounts for her own needs since the
parties' separation. Plaintiff is also the owner of a retirement
fund in the amount of approximately $67,000.00 which was
2 plaintiff's request that defendant immediately provide
plaintiff with the identity, location and amounts of the accounts
in question has been rendered moot by defendant's answer and the
filing of its inventory of marital property. Said inventory was
filed well within the ninety day period provided by the Rules. Pa.
R. civ. P. 1920.33.
established by defendant during the marriage.
It is submitted that plaintiff has adequate funds to pay
counsel fees and cover her other needs during the pending
litigation. ~, panaallo v. Panaallo, ___ Pa. Super ___, 477 A.2d
885 (1984). Given the fact that neither party anticipates gainful
employment at this stage in their lives, any award to plaintiff
(other than one based on defendant's social Security income) is
simply a distribution of existing marital assets.
For these
reasons, it is submitted that plaintiff's request for alimony
pendente lite and counsel fees be denied.
Respectfully submitted,
'e nell,
'Connell
reet
17108
Attorney for defendant
certiticate ot service
I, Timothy J. o'Connell, Esquire, hereby certify that I have
this 8th day of June, 1994, served a true and correct copy of the
foregoing Memorandum in Support of Dismissal of Plaintiff's
Petition by handing a copy thereof to Jennifer L. Lehman, Esquire,
attorney for the
plaintiff, Anna M. zinobile.
----- ~.---,
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Date: 6/8/94
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West's
PENNSYLVANIA
REPORTER
600 A.2d No, 4
March 6. 1992
Pages 1255-1310
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ANNA M. ZINOBILE, . IN THE COURT OF COMMON PLEAS
.
plaintiff . CUMBERLAND COUNTY, PENNSYLVANIA
.
.
.
v. . NO. l255-Civil-1994
.
.
.
P. JOSEPH ZINOBILE, . CIVIL ACTION - LAW
.
Defendant . IN DIVORCE
.
MBMORANDUM IN SUPPORT OF PLAINTIFF'S
PBTITION FOR SPBCIAL RBLIBF
I. FACTS
The Plaintiff is Anna M. Zinobile (hereinafter "Wife") who
filed a Complaint in Divorce on March 14, 1994, against P. Joseph
Zinobile (hereinafter "Husband"). On April 22, 1994, she filed a
Petition for Special Relief and for alimony pendente lite. This
Memorandum is in support of Wife's Petition for Special Relief
wherein Wife requests that Husband be ordered to maintain or
reinstate Wife as beneficiary of all pension accounts currently
owned by Husband pending further Order of Court.
The Parties acquired various Individual Retirement Accounts
(IRA's) and insurance policies during their thirty (30) year
marriage.
For at least twenty (20) years, both parties worked at
Metro Insurance and River City Inn which were businesses acquired
during the marriage. Husband's IRA's are worth over five times as
much as Wife's IRA's (see Plaintiff's Exhibit C).
2
Wife's counsel requested retirement and beneficiary
information from Husband's counsel on several occssions prior to
the filing of her Peti tion. Husband provided this information in
response to a Rule to Show Cause entered by this Court on April 22,
1994. During the pendency of the petition, Wife was able to
independently verify that for at least of the two of the marital
insurance, Husband removed Wife as beneficiary and replaced her
with Husband's sister and the parties' children.
II. QUESTIONS PRESENTED
A. Is this Court empowered to order the Defendant to maintain
the Plaintiff as beneficiary of all retirement accounts acquired
during the parties' marriage pending a final equitable distribution
order?,
Suggested response: Yes.
B. Is this Court empowered to order the Defendant to maintain
the Plaintiff as beneficiary of all life insurance policies
acquired during the parties' marriage pending a final equitable
distribution order?
Suggested response: Yes.
I II. ARGUMENT
A. This Court is empowered to order the Defendant to maintain
the Plaintiff as beneficiary of all retirement accounts acquired
during the marriage pending a final equitable distribution order.
The parties have agreed that Husband's largest IRA is worth
approximately $382,644.00. Accordingly, Husband's retirement
represents the bulk of the marital estate.
The Federal government has recongnized that a spouse's
interest in a marital pension is an important right which must be
protected. In August of 1984 Congress modified the Employee
Retirement Income Security Act (ERISA) to require an employee to
elect a joint and survivor annuity for qualified pension plans for
the benefit of the employee's spouse unless the spouse signs a
waiver of such election. 29 u.s.c.s. ~1055(c)(2).
Naming a spouse as a beneficiary of an IRA provides similar
protection as electing a joint and survivor annuity. The biggest
difference is that an IRA is not merely the right to receive
retirement monies, but represents an existing account under the
sole control of Husband into which marital funds were diverted.
3
('Y.'..........-."" ,,,,,~_,,:
Husband testified that he has not yet changed the beneficiary
of his IRA. Nonetheless, since he has changed the beneficiaries on
his life insurance policies, we have every reason to believe that
he will change the beneficiaries on his IRA's as well, if he is
able to do so.
Wife is entitled to the equal protection of ERISA. Husband
was funding an IRA with monies earned from two businesses which
both parties worked during the marriage. Husband testified that
the IRA was opened with proceeds which r~lled over from a qualified
pension plan. Wife urges this Court to use its equitable powers
under Pa. R.C.P. ~1920.43(a)(3) and extend the protections under
ERISA to all marital retirement accounts.
B. This Court is empowered to order the Defendant to maintain
the Plaintiff as beneficiary of all life insurance policies
acquired during the marriage pending a final equitable distribution
order.
The Divorce Code provides that:
(d) Life Insurance -
maintenance and beneficiary
The court may direct the continued
designations of existing pOlicies
4
insuring the life or health of either party which were originally
purchased during the marriage and owned by or within the effective
control of either party. 23 Pa. C.S.A. ~3502(d).
Husband has cited cases which appear to limit this provision
to post divorce situations while Wife has requested that she be
maintained as the beneficiary of all policies pendente lite. Wife
argues that this issue must be decided on a case-by-case basis.
In the case of Lindsay v. Lindsay, 342 Pa. Super 72 492 A.2d
396 (1985) which was originally heard before this very Court, the
issue decided by the Superior Court was whether the changing of a
beneficiary designation is the conveyance of an asset. In footnote
3 the Court specifically stated:
We do not, by this decision hold that the Court did
not have the power to order Mr. Lindsay to maintain
Mrs. Lindsay as the primary beneficiary of the two policies.
... Lindsay, 492 A.2d at 399.
In the case of Geraghty v. Geraghty, 411 Pa. Super 53, 600
A.2d 1261 (1991). Footnote 8 explains what the trial court was
really trying to accomplish. In that case, the Husband was
suffering from colon cancer. The Husband filed for divorce in
5
In the instant case, Mrs. Zinobile filed her Petition for
Special Relief as soon as she had learned that Husband had changed
the beneficiaries on the life insurance policies. The premiums for
these policies were paid from a joint marital account and Wife is
currently listed as the "payor". Wife argues that the power to
6
January 1988 and filed his Inventory and Appraisement in May of
1989 indicating he has changed the beneficiary designations on two
marital life insurance policies. The wife did not file her
Petition for Spcial Relief until June of 1990 when her husband's
condition seriously declined and he entered the hospital. The
trial court granted the wife I s peti tion and among other things,
ordered the husband to change the beneficiary designation on two
insurance policies back to wife. The husband died less than seven
days later.
Footnote 8 of that opinion reveals that the trial court
attempted to distribute other marital assets in light of the
husband's eminent death and did not only consider the insurance
policies. Clearly, the trial court was overreaching. The Superior
Court would not allow wife to benefit from husband's death when she
was not concerned about the insurance policies over a year ago when
she had notice of the beneficiary change or at the time the divorce
was filed, when she knew of the husband's cancer diagnosis.
I '.. .. ~
designate a beneficiary is in itself marital property as it was
acquired during the marriage and that this Court should preserve
the status quo which existed at the time of separation.
WHEREFORE, Wife prays this Honorable Court to enter an order
requiring Husband to reinstate and maintain Wife as the beneficiary
of all insurance policies in existence at the time of separation
over which he has control pending further order of court.
Respectfully sUbmitted,
CLBCKNBR AND FBARBN
~ MAl, j, iJ QI. .1JWUU..J
Je~ifet L. Lehman, Esquire
Attorney 1.0. 152784
31 North Second Street
P. O. Box 11847
Harrisburg, PA 17108-1847
(717) 238-1731
Date: .,/wQ./d,/99Lj
CERTIFICATE OF SBRVICB
I, Jennifer L. Lehman, Bsquire, hereby certify that on this I~
day of
~
, 1994, I served a true and correct copy
of the foregoing Memorandum in Support of Plaintiff's Petition for
Special Relief by depositing the same in the United States mail,
first class postage prepaid, addressed as follows:
Timothy J. O'Connell, Esquire
TURNER AND O'CONNELL
258 North Street
Harrisburg, PA 17101
CLBCKNBR ARD FBARBR
By: ~QI.~
Je n fe L. Lehman, Esquire
31 North Second Street
Harrisburg, PA 17101
(717) 238-1731
,.
t
\liP':',
JUN 13 199~ ciA..
CLECKNER ANO F'EAREN
ATTORNE:YS AT LAW
RICHARD W. CLECKNER
MICHAEL. IRA LEVIN
p, DANIEL ALTLAND
DENNIS oJ. &HATTO
ANN t. 'niOAOS
STUART L. KHADE
AoeCAT W. WAEOCA
MICMACL W. .JONCS
DAVID W. DROWN
,JENNI,.CR L. LEHMAN
DEBORAH .J. NATHAN
MARC T. LeVIN
31 NORTH SECOND STREET
P. O. BOX 118..7
HARRISBURG, PE:NNSYLVANIA '7'08"847
1717) 238-1731
"'ONTOO"'EAV COUNTY OF'ICE:
WILLOW GROVE PLAZA
SUITE 2000
101 YORK ROAD
WILLOW GROVe, PA 'ltODO
FAX: <<717. 238'8"81
(lltU 8117'''8.8
FAX: cllln .11".01"&
0" COUN.[~
WILLIAM "'CAREH
June 13, 1994
Hon. Harold E. Sheely
County of Cumberland
Court of Common Pleas
1 Courthouse Square
Carlisle, PA 17013
Re: Zinobile v. Zinobile
Dear Judge Sheely:
Enclosed for filing
Plaintiff's Petition for
matter.
please
Special
find Memorandum in Support of
Relief in the above-referenced
Sincerely,
CLBCKNBR AND FBARBN
~ (J. .1lvrx.a,J
~nni;e~ L. Lehman
JLL:bh
Enclosure
cc:
Mrs. Anna M. Zinobile
Timothy J. O'Connell,
(w/encl. )
Esquire (w/encl.)
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ANNA M. ZINOBILE,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
.
.
.
.
.
.
v.
: NO. l255-Civil-1994
.
.
P. JOSEPH ZINOBILE,
Defendant
CIVIL ACTION - LAW
IN DIVORCE
.
.
.
.
RULE TO SHOW CAUSE WHY
SPECIAL RELIEF SHOULD NOT BE GRANTED
AND NOW this ~,^/1~ay of 11 f//t../I , 1994, a Rule
is hereby entered against the Defendant, P. JOSEPH ZINOBILE, to
show cause why he should not be compelled to disclose the account
numbers, location and values of all pension accounts acquired
during the marriage to the Plaintiff and why the Plaintiff should
not be maintained or reinstated as beneficiary of all pension
accounts owned by the Defendant until further Order of Court.
Said Rule returnable.on- )_ \.. \j~~ \..\ ') cv~lt'- ~Q.\, v'l G\., C"-.;...........
\:\.: \._L, ~ lo---\
BY THE COURT:
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ANNA M. ZINOBILE,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
.
.
.
.
.
.
v.
: NO. l255-Civil-1994
.
.
P. JOSEPH ZINOBILEf
Defendant
CIVIL ACTION - LAW
IN DIVORCE
.
.
.
.
ORDER FOR BEARING
AND NOW this ';',J. /I.d. day of /I f>/l, 'L
, 1994, it is
hereby ORDERED that a hearing be set for
q:.3U o'clock A M. in Courtroom number
UUNL (,
at
/ of the Cumberland
County Courthouse, Carlisle, PAf at which time the Court will hear
testimony on the Plaintiff's Petition for Alimony Pendente Lite.
BY THE COURT:
(' L~L.."
J.
c,v'v ~
~~~J'{.; A~
~O ~ ,,r
ANNA M. ZINOBILE,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
.
.
v.
: NO. l255-Civil-1994
:
P. JOSEPH ZINOBILE,
Defendant
: CIVIL ACTION - LAW
: IN DIVORCE
PETITION FOR SPECIAL RELIEF AND FOR BEARING
FOR ALIMONY PENDENTE LITE
1. Your Petitioner is Anna M. Zinobile, the Plaintiff in the
above-captioned action (hereinafter referred to as "WIFE") who
currently resides at 224 Spanglers Mill Road, New Cumberland, York
County, Pennsylvania 17070.
2. The Respondent is P. Joseph Zinobile, the Defendant in the
above-captioned action (hereinafter referred to as "HUSBAND") who
currently resides at 416 Candlewyck Road f Camp Hill, Cumberland
County, Pennsylvania 17011.
3. On March 14, 1994f the Plaintiff filed a Complaint in
Divorce which contained a count requesting alimony pendente lite
(see Complaint in Divorce, Count III) and a count concerning WIFE'S
pension rights (see Complaint in Divorce, Count V).
4. The parties have been living separate and apart since
August 5, 1993.
5. On March 21, 1994, Timothy J. O'Connell, Esquire,
telephoned Plaintiff's counsel, Jennifer L. Lehman, and advised her
that he would be representing the Defendant in the divorce action.
As of April 20, 1994, Mr. O'Connell had not yet entered his
appearance.
Rule to Show Cause Why Special Relief
Should Not be Granted
6. paragraphs 1 - 5 of this petition are incorporated by
reference.
7. HUSBAND has informed WIFE that during the course of the
parties' marriage HUSBAND was able to acquire various private
pension accounts which now have an approximate value of $400,000.
8. HUSBAND was continuously self-employed during the parties'
marriage and WIFE has no knowledge concerning the location of the
said pension accounts.
9. WIFE has no information concerning the beneficiary
designation of the HUSBAND'S pension accounts.
2
10. The pension accounts are vital to WIFE to ensure her
support, maintenance and/or alimony and equitable distribution
rights should HUSBAND die during the pendency of this action.
11. HUSBAND'S attorney promised to provide information
concerning the parties' assets, including the pension accounts and
beneficiary designations. This understanding was confirmed in a
letter directed to Mr. O'Connell dated March 22, 1994. A copy of
the said letter is incorporated herein and marked as Exhibit 1.
12. No information or further communication was received from
Mr. O'Connell pursuant to that letter.
13. Plaintiff's counsel again wrote to Defendant's counsel
and requested the pension information by letter dated April 4,
1994. A copy of that letter is attached hereto and marked as
Exhibit 2.
14. As of the date of the filing of this peti tion, WIFE'S
counsel has not heard from Mr. O'Connell or HUSBAND. WIFE still
does not have any information concerning the pension accounts or
their beneficiary designations.
3
15. WIFE believes that the majority of the marital assets
consist of the said pension accounts.
WHEREFORE, WIFE requests this Honorable Court to issue a Rule
to Show Cause why HUSBAND should not be compelled to disclose the
account numbers, location and values of all pension accounts
acquired during the marriage and to compel HUSBAND to maintain or
reinstate WIFE as beneficiary of all pension accounts currently
owned by HUSBAND until further Order of Court.
petition for Hearing on Alimony
16.
herein.
Paragraphs 1
5 of this petition are incorporated
17. By reason of the divorce actionf WIFE will be put to
considerable expense in the preparation of her case, the employment
of counsel and the payment of costs.
lB. WIFE is without sufficient income to support herself and
to meet the costs and expenses of this litigation and is unable to
appropriately maintain herself during the pendency of this action.
4
19. The Defendant receives earnings from Social security,
rental properties, and interest which would enable him to provide
for WIFE'S support.
20. HUSBAND had paid WIFE the sum of $1,500.00 per month for
the months of September through December of 1993.
21. WIFE has not received any support monies from HUSBAND
since December of 1993.
WHEREFOREf WIFE requests that the Court enter an Order
requiring HUSBAND to pay WIFE alimony pendente lite pursuant to
Section 3701, et seq. of the Divorce Code.
Respectfully submitted,
CLECKNER AND FEAR EN
By: :thAMu.,/OJ) 0/. d.J~
Jef:.~iff!r L. Lehman, Esquire
Attorney I.D. #52784
31 North Second Street
P. O. Box 11847
Harrisburgf PA 17108-1847
Date:
ApuL aq, /9911
,
CLECKNER AND FEAREN
ATTORNEYS AT LAW
I' NOATH IICOND ITRlll
HARRISBURG. PENNSYLVANIA 17101
APR 2 0 1004 d-n",
.
RICHARD W. CLCCKNeR
MICHACL IRA LEVIN
P. DANltL ALTLAND
DENNIS,J, SHAno
ANN C. RHOADS
STUAnT L. ",,.,ADC
ROBERT W. WACOCA
MICHAeL W. .JONca
DAYID W. DROWN
.JCNNIF'CR L. U;HMAN
DeBORAH .J. "'''THAN
ATTORNEYS AT LAW
31 NORTH SECOND STREET
HARRISBURG. PENNSYLVANIA 17'0'
(717) 230'1731
MONTQOMeRY COUNTY OFFICE;
WILLOW GRove PLAZA
SUITt 1000
10' YORK ROAD
WILLOW GROI/C, PA 180eo
CIUII 8157...518
FAX: C717J 238'8"01
March 22, 1994
,.AX; UtlSI ee7.o13D
0" COUNseL
WILLI"... "EAR!:N
Timothy J. O'Connellf Esquire
TURNER AND O'CONNELL
258 North Street
Harrisburg, PA 17101
Re: zinobile v. Zinobile
No. l255-Civil-1994
In Divorce
Dear Tim:
This will confirm our telephone conversation of March 21,
1994, wherein you had advised me that you will be representing Mr.
Zinobile in the above-captioned divorce action.
It is my understanding that you will be assembling asset
information for us to review in the near future. Further, you are
looking into the pension plans owned by Mr. Zinobile and will
identify the account numbers, val ue of the accounts, and
beneficiary designations.
I explained to you my concerns regarding the pension accounts,
as I am under the belief they are privately funded accounts.
Accordingly, if I do not hear from you with regard to the pension
accounts wi thin the next ten days, we will be forced to file a
Petition for Special Relief in order to maintain my client as the
beneficiary on those accounts.
Hopefully,
can be settled
hear from you.
after a full disclosure of the assets, this case
on a relatively amicable basis. I will await to
SincerelYf
CLECKNER AND FEAREN
Jennifer L. Lehman
JLL:bh
cc: Mrs. Anna Zinobile
Exhibit 1
~
:-.
"'CHARD W. CI.ECMNEA
foI'CHACI. UtA I.EVIN
P. DANIel. ALTI.AND
DCNNIS oJ. SHATTO
ANN C. RHOADS
aTUAAT L. MNADC
ROBCA' W. WACOCA
MICHAEL W. "'ONCS
DA....ID W. BAOWN
"'CNNI"A L. LCHfoI"N
DEBO"'AH oJ. NATHAN
MARC T. LC....IN
CLECKNER AND FEAREN
ATTORNE:YS AT LAW
31 NORTH SECOND STREET
p. O. BOX 118"7
HARRISBURG, PE:NNSYLVANIA '7108-'847
~ONTaONtRY COUNTY O'FICE:
WILI.OW GROVE: PLAZA
SUITE 1000
10. YORK AOAD
WILLOW GROVE, PA 18080
f'ltll 8157......
FAX: flllll 8117.013.
C71" 238-1731
F'AX: ('1171 238'8"81
0" caU"'II'L
WILLIA,.. 'CAACN
Apdl 4, 1994
VIA FACSIMILE & U.S. MAIL
Timothy J. O'Connel, Esquire
TURNER AND O'CONNELL
258 North Street
Harrisburg, PA 17101
Re: Zinobile v. Zinobile
No. l255-Civil-1994 in Divorce
Dear Tim:
My client informed me today that Mr. Zinobile approached her
through the children and requested her signature to accept an offer
to purchase several vacant lots owned by either Mr. Zinobile or by
the parties. Mrs. Zinobile would very much prefer that all such
matters be handled either through mediation or through the
attorneys 50 as to not involve the chidren. She informs me that
Mr. Zinobile has made it a practice in the past to attempt to deal
with her through the children. If Mr. Zinobile does not accomplish
his goals with Mrs. Zinobile, he then informs the children that he
cannot do anything for the children due to their mother's
uncooperative nature.
While I recognize that all of the parties' five children have
reached the age of majoritYf we do not feel that it is good
practice to involve them in their parents I di vorce. Accordingly,
please inform your client that all communications are to be made
either through the mediator or through the attorneys.
Please verify if your client does, in fact, have an offer for
the sale of the vacant lots. If 50, please provide me with a copy
of the listing sheets, any appraisals prepared for the lots and a
~opy of the written offer.
Exhibit 2
'.
Timothy J. O'Connell, Esquire
April 4, 1994
Page two
As you know, I wrote to you on March 22, requesting asset
information. I was particularly concerned about Mr. Zinobile I s
pension accounts. since I have not received any information to
date in response to that letter, I am in the process of preparing a
Petition for Special Relief which will be filed with the Cumberland
County Courts.
Sincerely,
CLECKNER AND FEAREN
1eM'J..~U r/. j/./II'.a,J
Jennifer L. Lehman
JLL:bh
cc: Mrs. Anna Zinobile
CLleKHIII . FEARaN
""GINni '" LAw
. MU'U.IUIC. PC"H""U"'"
V B RIP I CAT ION
I verify that the statements made in the foregoing Petition
for Special Relief are true and correct to the best of my
knowledge, information and belief. I understand that false
statements herein are made subject to the penalties of 18 Pa. C.S.
~4904 relating to unsworn falsification to authorities.
Date:
A~'~N~
CERTIFICATE OF SERVICE
I, Jennifer L. Lehman, Esquire, hereby certify that on this ~5~h
day of
Ape;\
, 1994, I served a true and correct copy
of the foregoing Petition for Special Relief and for Hearing for
Alimony Pendente Lite by depositing the same in the United States
mail, first class postage prepaid, addressed as follows:
Mr. P. Joseph Zinobile
416 Candlewyck Road
Camp Hillf PA 17011
Timothy J. O'Connellf Esquire
258 North Street
Harrisburg, PA 17101
CLECKNER AND PEAR EN
By: ~mn~'\. t. ~n-
J nif r L. Lehman, Esquire
31 North Second Street
Harrisburg, PA 17101
(717) 238-1731
Plpe;'::l!i ,q'l'j
.
Par Reporter, 481-639 A.2d
492 A.2d 396, 342 Pa.Super. 72, Lindsey V. Lin...
-------------------------- Page 492 A.2d 396 follows ---------------------------
342 Pa.Super. 72, 68 A.L.R.4th 919
Judith A. LINDSEY
v.
Richard L. LINDSEY.
Appeal of Mary WAITKUS.
Superior Court of Pennsylvania.
Argued Sept. 19, 1984.
Filed April 26, 1985.
After husband's death, wife brought action to have beneficiary changes on
husband's life insurance policies declared null and void and to have proceeds
of life policies distributed to her. Court of Common Pleas, civil Division,
Cumberland County, No. 1709 Civil 1982, Sheely, J., determined the changes in
the beneficiary designations were in violation of injunction issued enjoining
husband from disposing of any marital assets. Designated beneficiary
appealed. The Superior court, No. 413 Harrisburg 1983, Wickersham, J., held
that: (1) when husband changed designation of beneficiary on his two life
policies from wife to third party, he did not thereby "convey" any assets to
third party; thus, changes in beneficiary designation were not disposal of
marital assets in violation of injunction enjoining husband from disposing of
any marital property, and (2) only cash surrender value of life insurance
policies could be considered marital property.
Reversed and remanded.
Wieand, J., concurred and filed an opinion.
1.
APPEAL AND ERROR k170(1)
30
30V
30V(A)
30k170
30k170(1)
Presentation and Reservation in
Issues and Questions in Lower
Nature or SUbject-Matter of
In general.
Lower Court of Grounds of Review
Court
Issues or Questions
Pa.Super. 1985.
Designated beneficiary on life insurance policies waived issue of whether
injunction prohibiting policyholder from disposing of any marital property was
in effect on date when policyholder changed beneficiary designations, where
issue was not raised before lower court. Rules App.proc., Rule 302(a), 42
Pa.C.S.A.
2.
INSURANCE k587.2(1)
217
217XVI
217k587
217k587.2
Right to
Change
Mode
Proceeds
of Beneficiary
and Sufficiency
Copyright (c) West Publishing Co. 1994 No claim to original U.S. Govt. works.
Par Reporter, 481-639 A.2d
492 A.2d 396, 342 Pa.Super. 72, Lindsey v. Lin...
217k587.2(1)
In general.
Pa.Super. 1985.
Fact that divorce action and ancillary claims abated upon husband's death
was irrelevant where challenged actions in question, i.e., changes in
beneficiary designations on husband's life pOlicies, occurred while husband
was still alive.
3.
k206
DIVORCE
134
134V
l34k206
Alimony, Allowances, and Disposition of property
Injunction against disposition of property before award.
Pa.Super. 1985.
Trial court had authority to void disposal of any marital property in
violation of preliminary injunction enjoining husband from disposing of any
marital property even though divorce action in which injunction was issued
abated upon husband's death.
4. INSURANCE k586(1)
217
217XVI Right to Proceeds
217k586 Beneficiary's Interest as Vested or Expectant
217k586(1) In general.
Pa.Super. 1985.
Naming of beneficiary on life policy vests nothing in that person during
lifetime of insured; beneficiary has but mere expectancy.
5. INSURANCE k586(1)
217
217XVI Right to Proceeds
217k586 Beneficiary's Interest as Vested or Expectant
217k586(1) In general.
Pa.Super. 1985.
Naming of beneficiary on life policy is sui generis; it is not conveyance
of insured's assets.
6.
k206
DIVORCE
134
134V
134k206
Alimony, Allowances, and Disposition of property
Injunction against disposition of property before award.
Pa.Super. 1985.
When husband changed designation of beneficiary on his two life policies
from wife to third party, he did not thereby "convey" any assets to third
party; thus, changes in beneficiary designation were not disposal of marital
assets in violation of preliminary injunction enjoining husband from disposing
of any marital property.
copyright (c) West PubliShing Co. 1994 No claim to original u.s. Govt. works.
Par Reporter, 481-639 A.2d
492 A.2d 396, 342 Pa.Super. 72, Lindsey v. Lin...
7. DIVORCE k252.3(4)
134
134V Alimony, Allowancesf and Disposition of Property
134k248 Disposition of Property
134k252.3 Particular Property or Interests and Mode of Allocation
134k252.3(4) Insurance, retirement, or pension rights.
Pa.Super. 1985.
Only cash surrender value of life policies could be considered marital
property.
[342 Pa.super. 74] William J. Fulton, Harrisburgf for appellant.
Sally Jo Winder, Shippensburg, for appellees.
Before WICKERSHAM, WIEAND and HESTER, JJ.
-------------------------- Page 492 A.2d 397 follows ---------------------------
WICKERSHAM, Judge:
Mary Ellen Waitkus appeals from the order of the Court of Common Pleas of
Cumberland County directing the payment of the proceeds of certain life
insurance policies to Judith A. LindseYf widow of Richard L. Lindsey, the
deceased insured.
At issue are two life insurance policies owned by Richard Lindsey. The
first, paying a $10,000 death benefit, is a group policy provided by Mr.
Lindsey's employer and issued by the Prudential Insurance Company. The
second, providing a $500 death benefit was issued by the Washington National
Insurance Company. Judith Lindsey, appellee herein, was originally named as
the primary beneficiary on both policies. The Lindseys experienced marital
difficulties, however, and separated. Subsequent to this separation, Mr.
Lindsey substituted Mary Ellen Waitkus, appellant herein, as the primary
beneficiary. Mr. Lindsey died on October 21, 1982. Judith Lindsey then
brought this action to have the beneficiary changes declared null and voidf
and to have the proceeds of the life insurance policies distributed to her.
Mr. and Mrs. Lindsey separated in May of 1982. Mrs. Lindsey filed for
divorce on June 2, 1982. On June 8, 1982, in conjunction with a request for
interim equitable distribution, Mrs. Lindsey obtained a preliminary injunction
enjoining Mr. Lindsey from disposing of any marital property, and permitting
her to remove some assets from the marital home for use in her new apartment.
Mr. Lindsey changed the beneficiary designation on the Washington policy on
July 8, 1982, and on the Prudential policy on October 8, 1982. Appellant
Waitkus testified that she did not know of Mr. Lindsey's intention to change
the [342 Pa.super. 75] beneficiaries until after the changes were made. Mrs.
Lindsey learned of the changes in beneficiaries only after Mr. Lindsey's death.
The lower court found that the changes in beneficiary designations were in
violation of the injunction issued on June 8, 1982. The court ordered,
Copyright (c) West Publishing Co. 1994 No claim to original u.S. Govt. works.
.~ _~. __._____...._____ ___ 1
Pa. Reporter, 481-639 A.2d
492 A.2d 396, 342 Pa.Super. 72, Lindsey v. Lin...
therefore, that the primary
and the Washington policies
the proceeds be distributed
beneficiary designations on both the Prudential
be in the name of appellee Judith Lindsey and that
to her.
Appellant presents us with the following issues:
1. Whether changes in beneficiary designations on life insurance
policies made on July 8 and October 8f 1982 violated a preliminary
injunction issued on June 8, 1982 and never moved to a hearing or
continued?
2. Whether the divorce action and ancillary claims abated with the death
of a party?
3. Whether the changing of a beneficiary designation is the conveyance
of an asset?
Brief for Appellant at 3.
[1] In her first issue, appellant argues that the injunction issued on
June 8, 1982 was no longer in effect on the dates when Mr. Lindsey changed the
beneficiary designations. since appellant never raised this issue before the
lower court, however, we are constrained to find that this argument has been
waived. (FN1) Pa.R.A.P. 302(a).
-------------------------- Page 492 A.2d 398 follows -------------------------__
[342 Pa.super. 76] [2][3] Appellant next asserts that the divorce action
and the ancillary claims abated upon Mr. Lindsey's death. While we agree with
this general contention, see Haviland v. Haviland, 333 Pa.super. 162, 481
A.2d 1355 (1984), we feel that it is irrelevant to the instant case. The
actions in question herein, i.e., the changes in the beneficiary designations,
obviously occurred while Mr. Lindsey was still alive. Furthermore, Mr.
Lindsey changed the beneficiaries on his life insurance policies at a time
when he was enjoined from disposing of any marital property (we have already
stated that appellant has waived any objection to the validity or viability of
the injunction). It is axiomatic that a court must have the power to enforce
its own orders. Thus, the lower court had the authority to void the disposal
of any marital property in violation of its injunction.
This brings us to appellant's third and final issue: whether a change in
the beneficiary designation on a life insurance policy is a violation of an
order enjoining a party from disposing of "any marital property." Appellant
asserts that a change in beneficiary designation is not a conveyance of an
asset. We are constrained to agree with appellant that the injunction did not
act to restrain Mr. Lindsey from changing the beneficiary designations on the
two insurance policies in question.
[4][5][6] It is clear that the naming of a beneficiary on a life
insurance policy vests nothing in that person during the lifetime of the
insured; the beneficiary has but a mere expectancy. In re Estate of
Miller, 402 Pa. 140, 146, 166 A.2d 10f 13 (1960), (concurring opinion by Bell,
Copyright (c) West Publishing Co. 1994 No claim to original U.s. Govt. works.
492 A.2d 396, 342 Pa.Super. 72, Lindsey v. Lin...
Pa. Reporterf 481-639 A.2d
J.); Equitable Life Assurance society of the United states v. Stitzel, 299
Pa.Super. 199, 203-205, 445 A.2d 523, 525-26 [342 Pa.Super. 77] (1982).
Furthermore, the naming of a beneficiary on a life insurance policy is sui
generis; it is not a conveyance of the insured's assets. Equitable Life
Assurance society of the United states v. Stitzel, id., citing In re Estate of
Henderson, 395 Pa. 215, 149 A.2d 892 (1959). Thusf when Mr. Lindsey changed
the designation of the beneficiary on his two life insurance policies from
Mrs. Lindsey to appellant, he did not thereby "convey" any assets to
appellant. The changes, therefore, were not disposals of marital assets in
violation of the injunction.
[7] The lower court found that "[t]he policies constitute 'marital assets'
as they were acquired during the marriagef 23 P.S. Sec. 401(f), and were not
excluded from such by 23 P.S. Sec. 401(e)." Lower ct. op. at 4. Appellant
agrees that the policies constitute marital property, but only to the extent
of their cash surrender value. Despite the lack of appellate case law in
Pennsylvania on this issue, we agree with appellant's position. (FN2)
Diligent research has revealed no Pennsylvania appellate cases on point. A
number of foreign jurisdictions, however, have held that only the cash
surrender value and not the proceeds of a spouse's life insurance policy is
presumed to be marital property. See, e.g., Hinds v. Hinds, 415 So.2d 1122
(Ala.1982); Walker v. Walker, 631 S.W.2d 68 (Mo.App.1982); Grost v. Grost,
561 S.W.2d 223 (Tex.Civ.App.1977). In Wisner v. Wisner, 129 Ariz. 333, 631
P.2d 115 (1981), the court stated:
The court adopted the cash surrender value of certain life insurance
policies on the husband as being their monetary worth for dissolution.
Wife proposes
-------------------------- Page 492 A.2d 399 follows ---------------------------
that the policies should have been valued at something greater than their
cash valuef arguing that, even if an insured has drawn on the cash value of
a policYf thus reducing it, the beneficiary is still entitled to the full
face value of the [342 Pa.Super. 78] policy less any cash drawn, if the
insured died. Such an argument is fallacious. An insurance policy upon
dissolution is its cash value. Grost v. Grost, 561 S.W.2d 223
(Tex.Civ.App.1977); Ray v. Ray, 336 S.W.2d 731 (Mo.App.1960). See de
Funiak-Vaughn Principles of Community Property, Sec. 233, pps. 528-532 (2d
Ed., 1971), cf. Blaine v. Blaine, 63 Ariz. 100, 159 P.2d 786 (1945)
(referring to value of life insurance policies upon dissolution in terms of
cash value.)
Id. at 338, 631 P.2d at 120.
In Bishop v. Eckhard, 607 S.W.2d 716 (Mo.App.1980), while an action for
dissolution of marriage was pending, husband changed the beneficiary on his
life insurance policy from his wife to his daughter. Before a divorce decree
was entered, husband died. Wife brought an action to have the insurance
proceeds paid to her rather than to the daughter. The Missouri court stated:
The appellant's argument that an insurance policy on the life of one of the
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On June 8, 1982, the trial court issued ex parte a temporary injunction
492 A.2d 396, 342 Pa.Super. 72, Lindsey v. Lin...
Pa. Reporter, 481-639 A.2d
parties' involved in a dissolution action constitutes marital property is
misplaced. To determine the parties assets in a dissolution action a whole
life insurance policy becomes marital property because of its cash
value.... It is not to be considered on the basis of the potential for
future proceeds.
Id. at 717-18 (citations omitted). The court noted that it need not
specifically address this issue since the dissolution action was made moot by
husband's death. Instantly, the action is not moot because we must consider
the effect of the court's injunction on the change in beneficiaries.
Nevertheless, the reasoning in the above-quoted passage applies equally to the
instant case.
We agree with the analysis in these decisions from other jurisdictions.
Thus, in the case at bar, only the cash surrender value of the policies could
be considered marital property. Only this value, then, was "frozen" by the
injunction. (FN3) [342 Pa.Super. 79] Had Mr. Lindsey not died, and had the
case reached the equitable distribution stage, the cash surrender value of the
policy owned by Mr. Lindsey would have been included as part of the marital
property subject to distribution. Because of Mr. Lindsey's demise, the
divorce action and its ancillary claims abated, Haviland v. Haviland, supra,
and, thereforef Mrs. Lindsey will not receive any portion of the cash
surrender value of the policies.
Thus, we find that Mrs. Lindsey's interest as a beneficiary was nothing
more than an expectancy. Her interest in the policies themselves was limited
to their cash surrender value. Since a change in a beneficiary designation in
a life insurance policy is not a conveyance or disposal of a marital asset,
Mr. Lindsey's decision to designate appellant rather than appellee as his
beneficiary did not violate the lower court's injunction issued on June 8,
1982. Thus, the lower court erred in ordering the beneficiary designations on
the two policies to be in the name of appellee.
Reversed and remanded so that the beneficiary designations on both the
Prudential and the Washington policies be in the name of appellant Mary Ellen
waitkus and the proceeds distributed to her. Jurisdiction is relinquished.
WIEANDf J'f files a concurring opinion.
WIEAND, Judgef concurring:
I concur in the result. However, I find it unnecessary to determine
whether the phrase "marital property" in the restraining order was intended to
refer to the face
-------------------------- Page 492 A.2d 400 follows ---------------------------
amount or to the cash surrender value of life insurance policies owned by one
spouse in which the other spouse was named beneficiary. In this case there
was no temporary injunction in effect when the decedent changed the
beneficiary on his life insurance.
Copyright (c) West Publishing Co. 1994 No claim to original U.S. Govt. works.
-
I'd. I\i.'i"
v. I.i n. . .
r('~.;tralliiJ'lq I\li:/Liril I. f,ind:-.I.'Y II: :"f) ':l"i
mal-itdl prUJH?t.ty Of" jointly ill'l i -I':-:"t.:", II
followinq "iqnifil:dnt IdlhIU",,":
, '
'-1.
i ,J.::ll1j":
1 n.;.
dJ dl1Y
"" I \ I, tllP
j -I \ i '. ( ) r l i,' l - , ) f i ~
I ild,'d
Thi:: 1'1"('} ininat.y In-junctloll ~;hdl1 L"ulltirdlf' Ilnti 1 ,j111H' ii, l(J1:.;' dt 11 :.j'_,
i~.f7l. o'c:lock in Court I,oom No. "31 Cumbo eel. Cnut.t lIou:;c'. C(lt'l i::lc', I'd. .,t
which time and pLlce d hl!dl'inq upon PL:dntit(/~; I11cJtiol1 fOl" continuillh't-' 01
thi,; injunction and final lnl:l!l'im Onler' uJ lli:;tr'ihution of I:'1uiLllolf.> i:;icj
pun;udnt to Sr,ction ~()}(cJ of the Divorce Code "hall he h(,anl.
The t(:mporar"y restrainin(J order, ther"efore, expin.?d by it-!: own tl.'r'm~; Uli
June II, 1"O;~, (FNl) Tlw record doe:; not disclose any IlCill'inlj to continll<.'
the order; and the reconJ i,; cledr tlldt the re:;trdininq order' Wil'; not
extended by further order at the court, Lindsey cllangc,d tile benet i c i ilr-y on
one of his life insurance policies on July H, }902. The beneficiary was
changed on the other policy on October H, 1982. On these dates there was no
court order restraining him from changing beneficiaries on his life insurancl'
policies. Therefore, it was error to conclude, as the trial court did, that
"the changes [of beneficiary] he made in contravention of the injunction were
fraudulent and hence null and void."
The majority holds that this argunent was not raised in the trial court
and, therefore, is not properly before this Court for review. A brief review
of the proceedings, theretore, is necessary and will reveal the basis for my
disagreement with the majority's analysis. On January 25, 1983, on petition
of Judith Lindsey, the trial court issued a special injunction restraining
Prudential Insurance Companies of America and Washington National Insurance
Company from paying to Mary Ellen Waitkus, the appellant, any proceeds from
policies of insurance issued on the life of Richard Lindsey, who died on
October 21, 1982. Mary Ellen [342 Pa.Super. 81] Waitkus, who was the named
beneficiary on these policies, was permitted to intervene and requested a
hearing. A hearing was held, at which the appellee, Judith Lindsey, was the
moving party. Her attorney called the appellant, Mary Ellen WaitkUS, as of
cross-examination. He asked her questions, inter alia, which, together with
her answers, were as follows:
Q. Were you aware that that order of court or that an order of court
enjoined Mr. Lindsey from disposing of any marital property or jointly-held
assets pending resolution of the claim or equitable distribution?
A. Yes, sir. I knew about it.
Q. You did testify earlier that Mr. Lindsey had expressed to you the
idea or a feeling that he didn't want his wife to get that insurance money,
is that correct?
A. Well, he didn't want her to have it all, that's what he told me after
he had done it.
Q. And you said you didn't know that they were done until after they
were done?
--_.-._--_.~ -~---- _.-.- .-.-..--
Copyright Ie) West PubliShing Co.
1994 No claim to original U.S. Govt. works.
Par Reporter, 481-639 A.2d
492 A.2d 396, 342 Pa.Super. 72, Lindsey v. Lin...
A. Yes, sir, that's right.
The trial court, following the hearing, entered an order which directed the
insurance companies to pay the life insurance proceeds to Mrs. Lindsey. The
sole and exclusive reason for the court's order, as already observed, was that
the changes had been in
-------------------------- Page 492 A.2d 401. follows --------------------------
contravention of the temporary restraining order and, therefore, were
fraudulent and void. On appeal, Mary Ellen Waitkus has argued that this was
error, that there was no injunction in effect at the time when the
beneficiaries were changed. In my judgment, appellant has done everything
possible to preserve this issue, and it is properly before this Court.
The argument, as herein noted, is a valid one. When the decedent changed
the beneficiary on the two policies at issue in this case, there was no court
order which restrained him from doing so. When the trial court concluded that
the change of beneficiary had violated a court issued injunction, the court
fell into error. Therefore, I agree with the majority that the order of the
trial court should be reversed.
FN1. In his concurring opinion, Judge Wieand argues that appellant did not
waive this issue. We disagree. After the hearing on the petition, the
parties submitted memoranda and presented argument to the court on the legal
issues relevant to the case. Appellant's Memorandum of Law discussed whether
the injunction of June 8, 1982 was applicable to the change of beneficiaries:
it did not, however, assert that the injunction was no longer in effect at th
time decedent changed the beneficiaries. In other words, in argument before
the lower court, appellant implicitly accepted the validity of the June 8
injunction, and simply argued that it did not apply to the life insurance
policies. We are of the opinion that by failing to preserve the issue of
whether the injunction was null and void at the time of the change in
beneficiaries in her argument before the lower court, appellant has waived he
right to raise the issue before us. .
We agree with Judge Wieand that "the sole and exclusive reason for the
court's order ... was that the changes had been in contravention of the
temporary restraining order and, therefore, were fraudulent and void."
Concurring Opinion by Wieand, J. at 400-401. The court's failure to
address the legal effectiveness of the June 8 injunction, however, was due
to the fact that appellant did not argue in the lower court that the
injunction was no longer in effect at the time of the beneficiary change.
The court, of course, could not be expected to address an issue that was
not before it. The proper place to make this argument in the first
instance is in the lower court, not on appeal.
FN2. Some Pennsylvania Court of Common Pleas cases have valued a life
insurance policy for equitable distribution purposes as the cash surrender
value. see, e.g., Drake V. Drake, 24 Pa.D. & C.3d 545 (1982): Hutchinson V.
Hutchinson, (Allegheny County, Family Division, No. 0796, January, 1981).
FN3. We do not, by this decisionf hold that the court did not have the power
Copyright (c) West Publishing Co. 1994 No claim to original U.S. Govt. works.
Par Reporter, 481-639 A.2d
492 A.2d 396, 342 Pa.Super. 72, Lindsey v. Lin...
to order Mr. Lindsey to maintain Mrs. Lindsey as the primary beneficiary of
the two policies. We decide only that the instant order enjoining Mr. Lindse
from disposing of "any marital property" did not encompass the change in the
beneficiary designation.
FN1. Pa.R.C.P. 1531(d) provides:
An injunction granted without notice to the defendant shall be deemed
dissolved unless a hearing on the continuance of the injunction is held
within five (5) days after the granting of the injunction or within such
other time as the parties may agree or as the court upon cause shown shall
direct.
See also: Commonwealth, Department of public Welfare V. Mallory, 51
Pa.Cmwlth. 414, 414 A.2d 749 (1980).
Copyright (c) West Publishing Co. 1994 No claim to original u.s. Govt. works.
.
Par Reporter, 481-639 A.2d
580 A.2d 1351, 398 Pa.Super. 284, Schubert V. ...
-------------------------- Page 580 A.2d 1351 follows
--------------------------
398 Pa.Super. 284
Anna Elisabeth uta Roeber SCHUBERT a/k/a Uta Schubert, Appellant,
V.
John Denney SCHUBERT.
Superior Court of Pennsylvania.
Argued March 6, 1990.
Filed Sept. 27, 1990.
Reargument Denied Nov. 2, 1990.
Action was brought for divorce. The Court of Common Pleas, Delaware
County, No. 89-9071, Reed, J., entered equitable distribution award from which
wife appealed. The superior court, No. 2173 Philadelphia 1989, Cercone, J.,
held that proceeds from insurance on life of parties' daughter were marital
assets subject to equitable distribution.
Affirmed in part, reversed in part and remanded.
McEwen, J., dissented.
1. DIVORCE k286(3.1)
134
134V Alimony, Allowances, and Disposition of property
134k278 Appeal
134k286 Review
134k286(3) Discretion of Lower Court
134k286(3.1) In general.
Formerly 134k286(3)
[See headnote text below]
1. DIVORCE k286(4)
134
134V Alimony, Allowances, and Disposition of Property
134k278 Appeal
134k286 Review
134k286(3) Discretion of Lower Court
134k286(4) Temporary alimony, counsel fees and expenses.
[See headnote text below]
1. DIVORCE k286(5)
134
134V Alimony, Allowances, and Disposition of property
134k278 Appeal
134k286 Review
Copyright (c) West Publishing Co. 1994 No claim to original U.S. Govt. works.
Par Reporter, 481-639 A.2d
580 A.2d 1351f 398 Pa.Super. 284, Schubert v. ...
134k286(3)
134k286(5)
Discretion of Lower Court
Disposition of property.
Pa.Super. 1990.
Scope of appellate review of orders concerning equitable distribution,
alimony, counsel fees and costs is limited to finding whether there is abuse
of discretion or error of law on part of lower court: absent abuse of
discretion by trial court, award will not be disturbed.
2. DIVORCE k252.3(4)
134
134V Alimony, Allowances, and Disposition of Property
134k248 Disposition of Property
134k252.3 Particular Property or Interests and Mode of Allocation
134k252.3(4) Insurance, retirement, or pension rights.
Pa.Super. 1990.
Limitation in No-Fault Act for amount insured may receive from insurer for
funeral expenses was not binding on divorce court making equitable
distribution determination with regard to insurance proceeds: court's
decision to deduct actual funeral expenses of $5,200 from proceeds before
distributing remainder to parties was not abuse of discretion. 40 P.S. Sec.
1009.103 (Repealed).
3. DIVORCE k252.3(4)
134
134V Alimony, Allowances, and Disposition of property
134k248 Disposition of property
134k252.3 Particular Property or Interests and Mode of Allocation
134k252.3(4) Insurance, retirement, or pension rights.
pa.Super. 1990.
Proceeds from insurance on life of parties' daughter were marital assets
subject to equitable distribution: though husband was sole beneficiary and
daughter died subsequent to parties' separation, policies were both purchased
and maintained with marital funds. 23 P.S. Sec. 401(e)(4), (f).
4. DIVORCE k287
134
134V Alimony, Allowances, and Disposition of Property
134k278 Appeal
134k287 Determination and disposition of questions.
Pa.Super. 1990.
Remand was required where divorce court failed to articulate its reasons
for rejecting issues raised in wife's exception to equitable distribution
order. Rules App.proc., Rule 1925(a), 42 Pa.C.S.A.
5. DIVORCE k221
134
134V Alimony, Allowances, and Disposition of Property
Copyright (c) West Publishing Co. 1994 No claim to original U.S. Govt. works.
Pa. Reporter, 481-639 A.2d
580 A.2d 1351f 398 Pa.Super. 284, Schubert v. ...
134k220
134k221
Allowance for counsel Fees and Expenses
In general.
Pa.Super. 1990.
Purpose of award of counsel fees is to ensure that financially dependent
spouse will be able to maintain or defend against action for divorce as well
as to effectuate economic justice.
6.
DIVORCE
134
134V
134k220
134k225
k225
Alimony, Allowances, and Disposition of property
Allowance for Counsel Fees and Expenses
Defenses and objections.
Pa.Super. 1990.
Failure to require husband to pay wife's counsel fees and expenses was not
abuse of discretion upon determination that both parties had ample assets with
which to pay their attorney fees.
-------------------------- Page 580 A.2d 1352 follows --------------------------
[398 Pa.Super. 286] David E. Auerbach, Medif for appellant.
Alan B. Portnoff, Paoli, for appellee (Submitted).
Before MCEWEN, MONTEMURO and CERCONE, JJ.
CERCONE, Judge:
This is an appeal from an amended order of the Delaware County Court of
Common Pleas dated July 19, 1989. We reverse in part, affirm in part and
remand for disposition consistent with this opinion.
On July 6, 1988, the lower court entered an order and opinion determining
the equitable distribution of the marital property of appellant Anna Elisabeth
uta Schubert and appellee John Denney Schubert. (FN1) In an opinion dated
July 24, 1989, the lower court dismissed appellant's exceptions to this
order. Appellant files this timely appeal.
The pertinent facts are as follows. Appellant and appellee were married on
March 29f 1963 and separated on February 23f 1984. TWo children were born to
the couple during the marriage. UnfortunatelYf the parties' daughter Audrey
died as a result of an automobile accident that occurred in July of 1984.
Appellant raises four (4) issues for our consideration. First, appellant
states that the lower court erroneously failed to consider certain marital
property with regard to its equitable distribution decision. Second,
-------------------------- Page 580 A.2d 1353 follows --------------------------
appellant argues that the lower court failed to properly follow the divorce
[398 Pa.Super. 287] code in determining the equitable distribution of the
marital assets. Third, appellant contends that the lower court erred in
failing to award her alimony. Finally, appellant argues that the lower court
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Par Reporter, 481-639 A.2d
580 A.2d 1351, 398 Pa.Super. 284, Schubert V. ...
erred in failing to require husband to pay her counsel fees and expenses.
[1] The scope of appellate review of orders concerning equitable
distribution, alimony, counsel fees and costs is limited to finding whether
there is an abuse of discretion or error of law on the part of the lower
court; absent an abuse of discretion by the trial court, the award will not
be disturbed. Ganong v. Ganong, 355 Pa.Super. 483f 513 A.2d 1024 (1986).
Guided by this stringent standard of review, we shall examine appellant's
contentions seriatim.
First, appellant argues that the lower court failed to consider and include
certain marital property with regard to its equitable distribution decision.
Appellant also challenges the valuation of other assets considered by the
court. The relevant assets are as follows:
Metropolitan Life Insurance Policy;
Bankers Life and Casualty POlicy;
Travelers Insurance Policy;
Honeywell stock Savings Plan;
Retirement Savings Plan;
Honeywell Accrued Vacation;
Assets concealed by appellee.
Our review of the record reveals that the parties received twenty-one
thousand five hundred dollars ($21,500.00) in proceeds from the aforementioned
Metropolitan Life Insurance Policy. This policy was taken on the life of the
parties' deceased daughter. While the parties agree that the policy
constituted marital property, they differ concerning the amount of money that
should be deducted for funeral expenses. (FN2)
[2] [398 Pa.Super. 288] Appellant contends that twenty thousand dollars
($20,000.00) of this amount should be considered marital property. Citing the
Pennsylvania No-Fault Motor Vehicle Insurance Act, (FN3) appellant argues
that only one thousand five hundred dollars ($1,500.00) may be deducted from
the insurance proceeds for funeral expenses. The lower court, however,
rejected this argument and deducted the actual costs of the funeral, five
thousand two hundred dollars and ninety-six cents ($5,200.96). Reviewing the
chronology of this case, we find no merit to appellant's contention.
Our review reveals that the parties indeed expended a total amount of five
thousand two hundred dollars and ninety-six cents ($5,200.96) for funeral
expenses prior to the commencement of their divorce proceedings. As noted by
the lower courtf these expenses were incurred by consensus of the parties.
Nevertheless, appellant argues that the lower court erroneously deducted five
thousand two hundred dollars and ninety-six cents ($5,200.96) for funeral
Copyright (c) West Publishing Co. 1994 No claim to original U.S. Govt. works.
Pa. Reporter, 481-639 A.2d
580 A.2d 1351f 398 Pa.Super. 284, Schubert v.
. . .
expenses from the Metropolitan policy since only one thousand five hundred
dollars ($1,500.00) could be deducted in accordance with the No-Fault Act.
Under the definition section of the No-Fault Act, we find as follows:
"Sec. 1009.103 Definitions
"As used in this act:
" 'Allowable expense' means reasonable charges incurred for, or the
reasonable value of (where no charges are incurred) reasonably needed and
used products, services, and accommodations for:
"(D) expenses directly related to the funeral, burial, cremation, or other
form of disposition of the remains of a deceased victim, not to exceed one
thousand five hundred dollars ($1,500) ...
-------------------------- Page 580 A.2d 1354 follows --------------------------
The aforementioned statute is not binding upon this Court with regard to an
equitable distribution determination. Instead,[398 Pa.Super. 289] this
No-Fault limitation concerns the total amount an insured may receive from
their insurance company. While the parties may have only received one
thousand five hundred dollars ($1,500.00) for funeral expenses from the
Metropolitan policy in accordance with the No-Fault act, the grieving parents
were not bound to limit their spending in memory of the deceased to this
amount. Therefore, we find that the sum of sixteen thousand two hundred
ninety-nine dollars and four cents ($16,299.04) constitutes the proper
valuation of the Metropolitan policy as a marital asset since the parties
spent five thousand two hundred dollars and ninety-six cents ($5,200.96) on
funeral expenses pursuant an agreement made prior to the equitable
distribution process.
[3] Appellant next argues that the lower court erroneously failed to find
the proceeds from the Banker's and Traveler's policies marital assets subject
to equitable distribution. These policies, like the aforementioned
Metropolitan Life policy, were taken on the life of the deceased daughter.
Each named appellee as the sole beneficiary. Upon the insured's death, the
benefits of these policies accrued to appellee. Appellant contends that these
proceeds constituted mutually owned property since the policies were acquired
during the marriage and purchased from marital funds. The lower court
rejected this contention. While the court found that the cash surrender value
of the policies constituted marital assets, it declared that the policies'
proceeds were not marital property since it accrued to appellee subsequent to
the parties' separation. We disagree.
In rendering its decision concerning these insurance policies, the lower
court relied heavily upon our decision in Lindsey v. Lindsey, 342 Pa.Super.
72, 492 A.2d 396 (1985). In Lindsey, we stated that only the cash surrender
value of the pertinent life insurance policies could be considered marital
property. Id. at 77, 492 A.2d at 398. Close scrutiny of the Lindsey case,
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Pa. Reporter, 481-639 A.2d
580 A.2d 1351, 398 pa.Super. 284, Schubert v. ...
howeverf reveals the merit of appellant's contention concerning this issue.
[398 Pa.Super. 290] In Lindsey, husband initially purchased two life
policies on himself and named wife sole beneficiary. Id. at 74, 492 A.2d at
397. subsequently, husband and wife separated and wife secured an injunction
barring husband from disposing of any marital property. Id. Husband then
changed the beneficiary designations on the two policies from his wife to
another woman. Id. Prior to the final divorce decree, husband died. Id.
The lower court, however, held that the changes in beneficiary designations
were in violation of the preliminary injunctions and ordered that wife be
named beneficiary. Id. at 75, 492 A.2d at 397. On appeal, we reversed this
decision.
We explained in Lindsey that being named sole beneficiary vested nothing
in wife but a mere expectancy during the lifetime of the insured. Id. at
76-77, 492 A.2d at 398. When husband changed beneficiary designations, there
was no violation of the preliminary injunction since he did not convey any
marital assets to a third party. Id. at 79, 492 A.2d at 399. Thus, we
concluded in Lindsey that the life insurance policy could only be valuated at
its cash value. Id. at 78-79f 492 A.2d at 399. Such is not the case here.
(FN4)
While Section 40l(f) of our Divorce Code generally provides that all
property "acquired by either party during the marriage is presumed to be
marital property," Section 40l(e)(4) excludes "[p]roperty acquired after final
separation until the date of divorce, except for property acquired in exchange
for marital assets (emphasis added)." This section of the divorce code is
applicable here, unlike in LindseYf because appellee/husband received the
proceeds of the policy subsequent to the parties' separation. In Lindsey, as
noted supra, the insurance proceeds were paid to a third party. Furthermore,
we find that these
__________________________ Page 580 A.2d 1355 follows --------------------------
proceeds constitute marital property subject to equitable distribution since
they were acquired in exchange for marital assets.
[398 pa.Super. 291] In the instant case, appellee received "salary
continuation" benefits pursuant to his voluntary early retirement after
thirty-seven (37) years of employment with Honeywell corporation. This
"salary continuation" plan consisted of several inducements and benefits
designed to entice employees to choose early retirement. During the course of
the parties' marriage, the Banker's and Traveler's insurance policies were
provided by appellee's employer and were paid in part from deductions from
appellee's salary. Pursuant to the early retirement plan, paycheck deductions
were continued to pay the premiums of the insurance policies.
Our review of the record reveals that the parties were married for
twenty-one (21) years. During this time period, appellee was employed with
Honeywell and purchased the relevant life policies. One month after the
parties separated, appellee retired. subsequentlYf the insurance policies
premiums were paid pursuant to the salary continuation plan. Five (5) months
after the parties separated, the insured died.
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Par Reporter, 481-639 A.2d
580 A.2d 1351, 398 Pa.Super. 284, Schubert v. ...
While appellant was not a named beneficiary to the policies, we find that
she was entitled to a share of the proceeds. specifically, we note that the
proceeds accrued to appellee only because the salary continuation provided for
the continued payment of the pertinent insurance premiums. We find that these
salary continuation benefits constituted marital assets since they were based
upon appellee's thirty-seven (37) years of service to Honeywell corporation.
Since wife contributed to the family's household for twenty-one (21) years of
this time period, we find that she was entitled to a share of appellant's
salary continuation. Most importantly, we find that appellant is entitled to
a share of the proceeds of the aforementioned insurance policies since we find
that the policies were not only purchased but maintained with marital funds.
Thus, we find that the lower court abused its discretion with regard to the
Banker's and Traveler's insurance policies proceeds and reverse with regard to
this issue.
[398 Pa.Super. 292] Turning to appellant's next allegation of lower court
error, we fail to find merit to appellant's contention concerning appellee's
alleged hidden assets. In contrast, the record reveals that the lower court
provided appellant with ample opportunity to unveil any assets concealed by
appellee. Since we find no merit to this contention, we affirm with regard to
this issue on the basis of the lower court's July 6, 1988 opinion.
In inter-related arguments, appellant states that the lower court erred in
appraising the marital share of the Honeywell stock Savings Plan and the
Retirement savings Plan. Our review reveals that these plans were also
provided pursuant to appellee's early retirement. Appellant also contends
that the lower court erroneously omitted appellee's accrued vacation pay from
the equitable distribution. with regard to the stock savings plan, appellant
states that the lower court erroneously found fifty-seven (57) shares of the
stocks with a value of ($3,188.48) subject to equitable distribution.
Appellant argues that one hundred fifty-seven (157) shares constitute the
marital assets of the parties.
Appellant states that the lower court also erred in valuating the savings
plan at ten thousand eight hundred forty-five dollars and four cents
($10,845.04). This plan, appellant concludes, should have been valued at
fifteen thousand four hundred ninety-two dollars and ninety-two cents
($15,492.92).
[4] Our careful review of the record reveals that the lower court failed
to address these contentions although the issues were raised in appellant's
exceptions to the equitable distribution order. In light of these omissions,
we now remand to the lower court so that it may articulate its reasons for
rejecting these arguments in accordance with Pa.R.A.P., Rule 1925(a).
Second, appellant contends that the lower court erred in failing to
properly follow the dictates of our commonwealth's divorce
_________________________ Page 580 A.2d 1356. follows --------------------------
code in determining the equitable distribution of the relevant marital
assets. We disagree. Reviewing[398 Pa.Super. 293] the record, we find that
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Pa. Reporterf 481-639 A.2d
580 A.2d 1351, 398 Pa.Super. 284f Schubert v. ...
the lower court properly adhered to the mandates set forth in section 401(d)
of the Divorce Code in ascertaining the equitable distribution of the parties'
marital assets. (FN5) We reject this argument, thereforef on the basis of
the lower court opinions dated July 6, 1988 and July 24, 1989. Additionally,
we do not agree with appellant's third contention concerning alimony. We also
reject this argument of the basis of the lower court's opinions.
[5][6] Finally, appellant argues that the lower court erred in failing to
require husband to pay her counsel fees and expenses. We disagree. As noted
by the lower court, the purpose of an award of counsel fees is to insure that
a financially dependant spouse will be able to maintain or defend against an
action for divorce as well as to effectuate economic justice between the
parties. Chaney v. Chaney, 343 Pa.Super. 77, 493 A.2d 1382 (1985). We find
no abuse of discretion with regard to the lower court's determination that
both parties had ample assets with which to pay their attorney's fees. Since
we find the logic proffered by the lower court convincing concerning this
issue, we affirm on the basis of the lower court opinion dated July 6, 1988.
We add, however, that appellant should note that counsel fees are not
"automatic" and are "only appropriate when necessary to put the parties on a
par in defending their rights or in allowing a dependent spouse to maintain or
defend an action for divorce." Johnson v. Johnson, 365 Pa.Super. 409, 415,
529 A.2d 1123, 1126 (1987). Thereforef we reject appellant's contention
concerning counsel fees.
[398 Pa.Super. 294] Reversed in part, affirmed in part and remanded to the
Court of Common Pleas of Delaware County, Civil Division for preparation and
filing of an opinion not inconsistent with this opinion. The Court of Common
Pleas is directed to act within forty-five (45) days of the filing date of
this opinion. Panel jurisdiction is retained.
McEWEN, J., dissents.
FNl. Subsequently, the lower court entered a second amended order on October
20, 1988. According to the lower court, this order was provided to correct
typographical errors contained in the original order dated July 6, 1988 as
well as the first amended order of July 19, 1988. Our review of the orders
reveals that the second amended order changed the number of Honeywell stock
shares that were to be considered pursuant to the equitable distribution. In
the original order, the court listed one hundred and fifty seven (157) shares
as marital assets: in contrastf fifty seven (57) shares were listed as
marital assets in the second order. Additionally, the second amended order
modified its categorization of a fund of ten thousand eight hundred forty-fiv
dollars and four cents ($10,845.04) which had previously been listed as a
pension plan. In its order of October 20, 1988, the court listed these funds
as a Honeywell savings plan.
FN2. In her appellate brief, appellant implies that she would not contest the
deduction of the actual funeral costs if we were to reverse the lower court
and find that the Traveler's and Banker's insurance policies' proceeds
constitute marital property. Although we find for appellant with regard to
the Traveler's and Banker's policies' proceeds, we nevertheless include this
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r"
I
Par Reporter, 481-639 A.2d
580 A.2d 1351, 398 Pa.Super. 284, Schubert v. ...
discussion to clarify our position on this issue.
FN3. 40 P.S. Secs. 1009.101 et seq., repealed, P.L. 26 No. 11, Sec. 8(a),
2/12/84.
FN4. In Lindsey, however, wife did not receive any portion of the cash
surrender value of the policies due to husband's death and abateMent of the
divorce action and its ancillary claims. Id. at 79, 492 A.2d at 399.
FN5. We note, however, the lower court's inconsistent evaluation of
appellant's prospects for future employment. In its opinion of July 6, 1988,
the lower court characterizes appellant's future prospects for well paying
employment as "slim, at best". In contrast, the lower court states in its
July 24, 1989 opinion that appellant could find "suitable employment" in the
future "since she has a talent that does not circumscribe her employable
age." Nevertheless, we find no abuse of discretion with regard to the lower
court's equitable distribution of the parties assets in light of its award an
consideration of the mandates of section 401(d) of the Divorce Code.
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,
Par Reporter, 481-639 A.2d
600 A.2d 1261, 411 Pa.Super. 53, Geraghty V. G...
Page 600 A.2d 1261 follows
--------------------------
411 Pa.Super. 53
Thomas J. GERAGHTY
v.
Patricia GERAGHTY.
Appeal of Francis FLEMING, Esquire, Executor of the Estate
of the Above Named Defendant, Thomas J. Geraghty,
Deceased.
Superior Court of Pennsylvania.
Argued July 30, 1991.
Filed Nov. 20, 1991.
Reargument Denied Jan. 28, 1992.
Husband filed for divorce. Wife petitioned for special relief, requesting
that husband be ordered to redesignate her as beneficiary on insurance
policies. The Court of Common Pleas, Chester County, civil Division, No.
88-00475, Gavin, J., granted petition. Following husband's death, executor of
his estate filed motion for reconsideration, which was denied. On executor's
interlocutory appeal, the Superior Court, No. 2757 Philadelphia 1990, Brosky,
J., held that: (1) trial court abused its discretion by distributing
insurance policies and pension which were marital property prior to entry of
final divorce decree, and (2) husband's death divested trial court of its
power to alter beneficiary designation on husband's life insurance policies.
Vacated and remanded.
Tamilia, J., concurred in result.
1. DIVORCE k252.3(4)
134
134V Alimony, Allowances, and Disposition of Property
134k248 Disposition of Property
134k252.3 Particular Property or Interests and Mode of Allocation
134k252.3(4) Insurance, retirement, or pension rights.
Pa.Super. 1991.
Trial court abused its discretion by attempting to make a permanent award
of life insurance policies and pension, which it found to be marital property,
prior to entry of a valid divorce decree, particularly as court was aware that
husband's death was imminent due to colon cancer.
2. DIVORCE k249.7
134
134V Alimony, Allowances, and Disposition of Property
134k248 Disposition of Property
134k249.7 Stage of proceedings.
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.-
,
Par Reporter, 481-639 A.2d
600 A.2d 1261, 411 Pa.Super. 53, Geraghty V. G...
Pa.Super. 1991.
Determination of any economic or similar claims which are ancillary to a
divorce action must be made in conjunction with or following the entry of a
divorce decree. 23 Pa.C.S.A. Secs. 3104(a), 3323(a-c, f), 3502(a); 23 P.S.
Secs. 301(a), 401(a-d) (Repealed).
3. DIVORCE k83
134
134IV Proceedings
134IV(G) Abatement and Revival
134k83 Abatement on death of party.
Pa.Super. 1991.
Husband's death abated divorce action and ancillary proceedings, and thus
divested court of its power to alter beneficiary designation on husband's life
insurance policies. 23 Pa.C.S.A. Secs. 3104(a), 3323(a-c, f), 3502(a); 23
P.S. Secs. 301(a), 401(a-d) (Repealed).
[411 PASUPER 54] Thomas A. Fosnocht, Jr., West Chester, for appellant.
Donald A. Mancini, Asst. Dist. Atty., Malvernf for appellee.
[411 PASUPER 55] Before MONTEMURO, TAMILIA and BROSKY, JJ.
BROSKY, Judge.
This is a certified appeal from an interlocutory order of the trial court
which directed the decedent to change the beneficiary designation on two life
insurance policies that had been purchased during the parties' marriage.
Appellee, Patricia GeraghtYf and appellant's decedent, Thomas Geraghty,
were married in 1969. One child, David Geraghty, was born during the
marriage. Two life insurance policies on the life of Mr. Geraghty were
acquired during the parties' marriage. (FN1) Appellant concedes that
appellee was the designated beneficiary on both of these policies prior to the
parties' separation. (FN2)
-------------------------- Page 600 A.2d 1262 follows -------------_____________
In June of 1986, Mr. Geraghty was found to have cancer of the colon and
subsequently underwent a course of medical treatment for this disease.
Shortly after Mr. Geraghty learned of his illness, the parties' marital
relationship began to deteriorate to the point where Mr. Geraghty entered into
a meretricious liaison with Mrs. Cynthia Chatfield, who was at that time
married to her husband, Mr. Chatfield. Mr. and Mrs. Geraghty finally
separated in December, 1987, and Mr. Geraghty subsequently moved in with his
paramour. Mr. Geraghty and Mrs. Chatfield had one child, Ryan Geraghty, who
was born in 1988.
[411 PASUPER 56] After the parties' final separation, Mr. Geraghty
commenced this action by filing a divorce complaint in January of 1988.
Although several hearings regarding the divorce action and equitable
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Par Reporter, 481-639 A.2d
600 A.2d 1261f 411 Pa.Super. 53, Geraghty V. G...
distribution matters were held before a special master, neither transcripts of
these proceedings nor any other relevant documentation adduced therein have
been made a part of the certified record. During the pendency of the
divorce/equitable distribution proceedings, Mr. Geraghty apparently changed
the beneficiary designations on the TransAmerica and Prudential policies.
Thusf Ryan Geraghty was named as the beneficiary of the TransAmerica policy
and David Geraghty was made the beneficiary of the Prudential policy. In
addition, Mr. Geraghty acquired a third life insurance policy fOllowing his
separation from his wife. This policy was identified as the UNUM policy, and
was in the amount of $60,000.00. David Geraghty was made the beneficiary of
this policy. Although appellee was apprised of the changed beneficiary
designations on the TransAmerica and Prudential policies when Mr. Geraghty
filed his Inventory and Appraisement in May of 1989, she did not make any
attempt to have the prior beneficiary designations reinstated at this time.
In February of 1990, Mr. Geraghty made a claim for accelerated death benefits
under the Prudential policy and he received a check in the amount of
$144,051.40 as payment on this claim. (FN3) Mr. Geraghty subsequently
re-designated both Ryan and David Geraghty as co-equal beneficiaries on the
TransAmerica policy in May, 1990.
Mr. Geraghty's health steadily declined and required him to enter the
hospital in June, 1990. Upon learning of Mr. Geraghty's serious condition,
appellee filed a petition for special relief pursuant to Pa.R.C.P., Rule
1920.43, 42 Pa.C.S.A. A hearing on the petition was held on June 29, 1990,
following which the trial court granted appellee's petition [411 PASUPER 57]
and directed Mr. Geraghty to re-designate appellee as the beneficiary on the
TransAmerica and Prudential policies. Although the trial court gave Mr.
Geraghty a period of seven days in which to comply with the order, the trial
court directed the prothonotary to complete the necessary changes in the event
of Mr. Geraghty's death. Mr. Geraghty died before the expiration of this
period and did not attempt to satisfy the trial court's directive.
Following Mr. Geraghty's death, letters testamentary were granted to
appellant, Mr. Francis Flemingf Esq., the executor of Mr. Geraghty's estate.
(FN4) A timely filed motion for reconsideration was filed on Mr. Geraghty's
behalff but was summarily denied by the trial court. On August 29, 1990, the
June 29, 1990 order was amended to include a statement certifying the order
for the purpose of an interlocutory appeal. See 42 Pa.C.S.A. Sec. 702(b).
On September 28, 1990, appellant timely filed a petition for permission to
appeal from the trial court's interlocutory order, as required by Pa.R.A.P.,
Rule 1311(b), 42 Pa.C.S.A. Appellant also filed a petition to vacate the
-------------------------- Page 600 A.2d 1263 follows --------------------------
order on this same date, however, no action was taken with respect to this
petition. (FN5) We granted appellant's petition for permission to pursue
this interlocutory appeal by a per curiam order entered on January 24, 1991.
(FN6)
[411 PASUPER 58] Appellant presents the following issues for review: (1)
whether the order is moot: (a) due to the death of the decedent, thereby
causing an abatement of the divorce action and equitable distribution
matters; and/or (b) because the order was interlocutory and executory; (2)
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600 A.2d 1261, 411 Pa.Super. 53, Geraghty v. G...
Pa. Reporter, 481-639 A.2d
whether the order was invalid because it purported to dispose of marital
assets prior to the entry of a divorce decree; (3) whether the Divorce Code
permits the courts to designate or change the beneficiaries on a life
insurance policy pendente lite; and (4) whether the trial court erred: (a)
because appellee's claim is barred by the doctrine of laches, and (b) by
inequitably distributing the life insurance proceeds to favor the decedent's
legitimate rather than illegitimate child. For the reasons set forth below,
we vacate the order of the trial court and remand for further proceedings
consistent with this opinion.
In reviewing the merits of this appeal, we observe that U[t]he granting of
relief under [Pa.R.C.P.f] Rule 1920.43, 42 Pa.C.S.A.] is within the sound
discretion of the trial court and is an exercise of the court's equitable
powers. Absent an abuse of discretion, the appellate court will not disturb
the lower court's decision.u DeMatteis v. DeMatteis, 399 Pa.Super. 421, 428,
582 A.2d 666, 669 (1990). See also [411 PASUPER 59] Frank v. Frankf 402
Pa.Super. 458, 462, 587 A.2d 340, 342 (1991) (for a similar standard of
review). We will evaluate the trial court's order in accordance with this
standard.
Although appellant raises four distinct questions for review, we observe
that the first three claims are inextricably intertwined in that they all
involve an analysis of the trial court's power to direct the designation of a
beneficiary on a life insurance policy prior to the entry of a divorce
decree. with regard to the trial court's ability to dispose of economic
claims in a divorce action, this court has observed that U[t]he Divorce Code
... establishers] a comprehensive scheme for the dissolution of marriage, the
distribution of marital property, and the resolution of related economic
claims. within that scheme, it is contemplated that 'equitable distribution
of property acquired during the marriage occurs only upon divorce.' U Reese
v. Reese, 351 Pa.Super. 521, 525-526, 506 A.2d 471, 473 (1986)f quoting
Bacchetta v. Bacchetta, 498 Pa. 227, 235, 445 A.2d 1194, 1198 (1982)
(footnote omitted) (emphasis supplied by the court). As further explained by
this court:
-------------------------- Page 600 A.2d 1264 follows --------------------------
The determination of economic claims flows from the divorce decree, which
is the sine qua non of any consideration of economic matters. Once the
[divorce] decree has been entered, the right of the spouse to the
distribution of marital property and other economic c1aims[,] where these
matters have been properly put in issue before the death of the spouse, is
vested. However, [u]n1ess and until a valid decree in divorce has been
entered, there can be no equitable distribution of marital property.
Therefore, because a divorce action is abated by the death of one of the
parties prior to the entry of a [divorce] decree, economic claims are also
abated by the death of one of the parties prior to the entry of a decree.
Myers V. Myers, 397 pa.Super. 450, 452, 580 A.2d 384, 385 (1990). See
also 23 P.S. Sec. 301(a)f Sec. 401(a), (b), (b.1), (c) and (d), repealed and
re-enacted by the Act of December 19, 1990, P.L. 1240, No. 206, and codified
at 23 Pa.C.S.A. Sec. 3104(a), Sec. 3323(a), (b), (c), (f) and Sec. 3502(a)
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Pa. Reporter, 481-639 A.2d
600 A.2d 1261, 411 Pa.Super. 53, Geraghty v. G...
(which all [411 PASUPER 60] emphasize the legislature's intent to provide for
the adjudication of economic claims in conjunction with or following the entry
of a divorce decree). (FN7)
[1] In applying the above principles and relevant provisions of the
Divorce Code to the facts of this casef we are compelled to conclude that the
trial court abused its discretion. We first observe that the trial court
attempted to circumvent the provisions of the Divorce Code by distributing
some of the marital assets prior to the entry of a final divorce decree. The
trial court specifically indicated that the two life insurance policies and
Mr. Geraghty's pension were marital property that was subject to equitable
distribution by the court. See Findings of Fact and Order, 6/29/90, at 3.
The trial court was also aware of Mr. Geraghty's condition and of the fact
that his death was imminent. See id., at 3-4. Due to Mr. Geraghty's
impending death, it was extremely unlikely that any further action could or
would be taken regarding either a divorce decree or the economic claims.
Thus, the trial court's order cannot be construed as an attempt to preserve
marital property for future equitable distribution because it was apparent
that no future proceedings would ever occur. When viewed in this context, the
trial court's directive that appellee be reinstated as the beneficiary cannot
be interpreted as anything other than a distribution of the life insurance
proceeds and pension benefits to appellee. Because a permanent distribution
of marital assets prior to the entry of the divorce decree violates the
provisions of the Divorce Codef the trial court's order must be vacated.
[2][3] We also observe that the trial court operated under the erroneous
assumption that it had the authority to order a change in the beneficiary
designations in the event of Mr. Geraghty's death. See Findings of Fact and
Order, [411 PASUPER 61] 6/29/90, at 4. As made clear by Myers v. Myers,
supra, and the cases cited therein, the determination of any economic or
similar claims which are ancillary to the divorce action must be made in
conjunction with or following the entry of a divorce decree. Because the
trial court's powers are derived from and are contingent upon the continued
existence of the divorce action, the trial court has no jurisdiction to
proceed if one of the parties dies prior to the entry of a divorce decree.
Myers v. Myers, supra. The abatement of the divorce action and other
proceedings thus divested the trial court of its power to alter the
beneficiary designations on the life insurance policies after Mr. Geraghty's
death.
Since our analysis of appellant's first three issues adequately disposes of
this appeal, we decline to address the merits of the remaining claims
regarding application of the doctrine of laches and whether the trial court
impermissibly discriminated against Mr. Geraghty's illegitimate child. To
summarize our holding, we find that the trial court abused its discretion in
this case by attempting to make a permanent award
------------------------- Page 600 A.2d 1265. follows --------------------------
of marital property prior to the entry of a valid divorce decree. We further
conclude that the trial court lacked jurisdiction to enforce its order after
the divorce action abated due to the demise of one of the parties. Because
the trial court abused its discretion in attempting to enter and enforce its
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'.aMi;':.:
Pa. Reporter, 481-639 A.2d
600 A.2d 1261, 411 Pa.Super. 53, Geraghty v. G...
directive despite its patent lack of jurisdiction, we vacate the order and
remand to the trial court. (FN8) Upon remand, we specifically direct the
trial court [411 PASUPER 62] to relinquish control of the funds paid by
TransAmerica to the beneficiaries designated by Hr. Geraghty, that is, David
Geraghty and Ryan Geraghty, as co-equal beneficiaries.
Order vacated. Remanded for further proceedings consistent with this
opinion. Jurisdiction relinquished.
TAMILIA, J., concurs in the result.
FN1. One policy was issued by Prudential in the sum of $165,000.00: the
other policy was from TransAmerica, in the sum of $250,000.00. Copies of the
insurance policies were never introduced into evidence nor have they otherwis
been made a part of the certified record.
FN2. There appears to be some confusion on this matter. In her petition for
special relief, appellee asserted that she was the beneficiary on the
Prudential policy and that David Geraghty was the beneficiary on the
TransAmerica policy. See Petition for special Relief at paragraphs 14 and
15. At the hearing, however, appellee testified that she was the designated
beneficiary on both the TransAmerica and Prudential policies. See N.T.,
6/29/90, at 23. Appellant concedes that appellee was the beneficiary on both
policies prior to the parties' separation. See Appellant's Brief, at 5.
Because the parties do not appear to dispute this issue on appeal, we will
assume that appellee was in fact the designated beneficiary on the policies
prior to the parties' final separation.
FN3. See Appellee's Answer and New Matter to [Appellee's] Petition to Vacate,
Exhibit B (Letter from Prudential to appellee's counsel and copy of canceled
check). Appellee did not discover that Mr. Geraghty had cashed in the
Prudential policy until September 6, 1990, when she received the letter from
Prudential.
FN4. Because of Mr. Geraghty's death during the pendency of this action, Mr.
Fleming in his capacity as the executor of Mr. Geraghty's estate, has been
substituted as the plaintiff in the action below and as appellant here.
FN5. Because appellant has been granted permission to appeal from the amended
interlocutory order, the trial court is precluded from taking further action
in this matter. See Pa.R.A.P., Rule 1701(a), 42 Pa.C.S.A. and 42 Pa.C.S.A.
Sec. 5505.
~
1,
FN6. We note that appellant also timely filed a direct appeal from the trial
court's amended interlocutory order. This appeal was docketed at No. 02757
Philadelphia 1990, whereas appellant's petition for permission to appeal from
the interlocutory order was docketed at No. 170 Misc.Dkt. 16. Although
appellant's attempt to directly appeal the interlocutory order would
ordinarily have been quashed, we indicated in our order that the petition to
pursue the interlocutory appeal would be transferred to the docket number
previously assigned to this case at No. 02757.
,
Copyright (c) West Publishing Co. 1994 No claim to original U.S. Govt. works.
r
..
.,
Pa. Reporter, 481-639 A.2d
600 A.2d 1261, 411 Pa.Super. 53, Geraghty v. G...
with regard to the issues raised on appeal, appellee suggests that they are
not properly before this court because our order granting the interlocutory
appeal limited the issues which appellant may present. See Appellee's
Brief at 3. Appellee has misconstrued our order, in which we stated: "The
court hereby grants the petition for permission to appeal from the trial
court order directing the decedent to change the beneficiary designations
on two life insurance policies." Contrary to appellee's interpretation,
this sentence does not purport to limit the issues raised by appellant.
Instead, it describes with particularity the order from which appellant has
appealed.
Once permission to appeal from the interlocutory order has been granted, an
appellant can only raise the issues set forth in the petition for
permission to appeal from an interlocutory order. See Pa.R.A.P., Rule
1312(a)(4), 42 Pa.C.S.A. However, the issues raised in the petition are
deemed to include every subsidiary question fairly comprised therein. See
id. Because the issues raised in appellant's statement of questions were
either raised in appellant's petition for permission to appeal or were
implicated therein as a subsidiary question, we find all of these issues to
be properly before us for review.
FN7. Because the new provisions of the Divorce Code use the same or
substantially the same language as the repealed provisions, the repeal and
reenactment does not affect our analysis. See Brangs v. Brangs, 407
Pa.Super. 43, 45 n. 1, 595 A.2d 115, 116 n. 1 (1991) and 1 Pa.C.S.A. Sec.
1962. We have cited to both the former and current provisions for convenienc
and clarity.
FN8. Although the issues raised in this appeal focused on the beneficiary
designations on the two insurance policiesf the entire order must be vacated
because of the trial court's lack of jurisdiction. Because the order
attempted to distribute other marital and non-marital assets in addition to
the insurance policies, we will briefly discuss the effect of the trial
court's order on and our disposition of these assets. We further note that
because the Prudential policy had been cashed in by Mr. Geraghty long before
the trial court's order was entered, the trial court's attempt to designate a
beneficiary on this non-existent policy was moot. See In re: Cain, 527 Par
260, 263, 590 A.2d 291f 292 (1991) (discussing mootness).
The remaining assets distributed by the trial court consisted of the UNUM
policy and Mr. Geraghty's pension benefits. With regard to the UNUM
policy, the record reveals that it was acquired after the parties' final
separation. As correctly recognized by the trial court, this policy would
not have been subject to equitable distribution had the divorce action
progressed. See 23 P.S. Sec. 401(e)(4), repealed and reenacted at 23
Pa.C.S.A. Sec. 3501(a)(4l. Thus, the trial court's attempt to "award" this
property to Mr. Geraghty, aside from being invalid for the reasons
previously discussed, did nothing more than recognize Mr. Geraghty's
previously existing right to possess and dispose of this asset.
Accordingly, the "award" of this property cannot be used, as suggested by
Copyright (cl West Publishing Co. 1994 No claim to original U.S. Govt. works.
.
Par Reporter, 481-639 A.2d
600 A.2d 1261, 411 Pa.Super. 53, Geraghty v. G...
appellee, to create an estoppel or reliance so as to require that the order
be upheld. See Appellee's Brief at 20. compare Reese v. Reese, supra,
351 Pa.Super. at 528-529, 506 A.2d at 475 (in which we held that a party
who requested equitable distribution prior to the entry of a divorce decree
and who received the requested relief would be estopped from asserting that
the trial court lacked jurisdiction to distribute the marital property
prior to granting a divorce). Reese is clearly distinguishable from the
facts of this case since Mr. Geraghty did not request pre-divorce equitable
distribution. Further, Mr. Geraghty cannot be said to have relied upon the
court's order. Because Mr. Geraghty would have been free to dispose of
this asset in the absence of the trial court's order, our disposition does
not affect any change in the beneficiary designation which he may have made
prior to his death.
------------------------- Page 600 A.2d 1265_ follows --------------------------
The last asset distributed by the trial court was Mr. Geraghty's pension.
According to appellant, Mr. Geraghty could not designate any beneficiary
other than his spouse. See Appellant's Motion for Reconsideration at
paragraph 6. If this allegation is assumed to be true, then the trial
court's purported award of one-half of the pension to Mr. Geraghty was a
nullity since appellee would have been entitled to receive the entire
pension benefit. In addition to this problem, it is clear that the trial
court had no authority to determine and distribute the parties' share of
Mr. Geraghty's pension prior to the entry of the divorce decree.
Therefore, the trial court's award of this asset must likewise be vacated.
If, as appellant asserts, a spouse is the only party eligible to receive
the pension, then we presume that appellee will be entitled to receive this
asset.
Copyright (c) West Publishing Co. 1994 No claim to original U.S. Govt. works.
ANNA M. ZINOBILE,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNYSLVANIA
v.
: NO. 1255 CIVIL 1994
P. JOSEPH ZINOBILE.
Defendant
CIVIL ACTION - LAW
: IN DIVORCE
INVENTORY AND APPRAISEMENT
OF
P. JOSEPH ZINOBILE
.
INVENTORY AND APPRAISEMENT
OF
P. JCSEPH ZIl'I)BILE
P. Joseph Zinobile
files the following
inventory and appraisement of all property owned or possessed
by either party at the time this action was commenced and all
property transferred within the preceding three years.
P. .1n~ph 7.innhilp
verifies
that
the
statements made in this inventory and appraisement are true
and correct.
P. Joseph Zinobile
understands that
false statements herein are made subject to the penalties of
18 Pa.C.S. S 4904 relating to unsworn falsification to authori-
ties.
4~~
~sePh Zin#le
(X ) 1.
(X ) 2.
X ) 3.
) 4.
X ) 5.
X ) 6.
(
(
) 7.
) 8.
) 9.
ASSETS OF PARTIES
Real property
Motor Vehicles
Stocks, bonds, securities and options
Certificates of deposit
Checking accounts, cash
Savings accounts, money market and savings
certificates
Contents of safe deposit boxes
Trusts
Life Insurance policies (indicate face value, cash
surrender value and current beneficiaries)
) 10. Annuities
(
)11.
)12.
.
Gifts
Inheritances
)13. Patents, copyrights, inventions, royalties
(
)14.
Personal property outside the home
)15. Businesses, (list all owners, including percentage
of ownership, and officer/director positions held
by a partner with company)
)16.
)17.
)18.
(
X )19.
)20.
)21.
)22.
)23.
Employment termination benefits-severance pay, work-
man's compensation claim/award
Profit sharing plans
Pension plans (indicate employee contribution and
date plan vests)
Retirement plans, Individual Retirement Accounts
Disability payments
Litigation claims (matured and unmatured)
Military/V.A. benefits
Education benefits
)24. Debts due, including loans, mortgages held
)25. Household furnishings and personalty (include as
a total category and attach itemized list if distri-
bution of such assets is in dispute
)26. Other
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LawOffie..
of
TURNER AND O'CONNEl.L
;1
'I
~
INCOME AND EXPENSE STATEMENT
OF
P. JOSEPH ZINOBILE
I verify that the statements made in this Income
and Expense Statement are true and correct.
I understand that
false statements herein are made subject to the penalties of
18 Pa.C.S. S 4904 relating to unsworn falsification to authori-
ties.
Date:
June
1994
Interest
Dividends
Pension
Annuity
Social Security
Rents
Royalties
Expense Account
Gifts
Unemployment Comp.
Workmen's Compo
Retirement Acct.
less withholdina
$
$
$
INCOME
Employer:
Address:
n/a
Type of Work:
payroll Number:
Pay Period (weekly, biweekly. etc.):
Gross Pay per Pay Period: $
Itemized Payroll Deductions:
Federal Withholding $
Social Security $
Local Wage Tax $
State Income Tax $
Retirement $
Savings Bonds $
Credit Union $
Life Insurance $
Health Insurance $
Other (specify)
$
$
Net Pay per Pay period: $
Other Income:
Week Month Year
(Fill in Appropriate Columnr---
763.00
190.00
Total:
77<;0 00
- ...2.00 00
$ $1<;01 00 $
$
TOTAL INCOME:
EXPENSES
Weekly Monthly Yearly
(Fill in appropriate column)
Home
Mortgage/Rent $ $ $
Maintenance 60.41
Utili ties
Electric 28.35
Gas
Oil/Furnance Maint. 143.29
Telephone 46.80
HliXIUf Cable 18.32
Sewer 22.50
Employment
Public Transportation $ $ $
. Lunch
Taxes
Real Estate $ $ 174.20 $
Personal Property
Income
Insurance
Homeowners $ $ 31. 08 $
Automobile 284.33
Life 235.66
Accident
Health 1577.86
Other
Automobile
Payments $ $ $
Fuel 100.00
Repairs
Amoco Motoring Plan 3.32
Medical
Doctor $ $ 68.75 $
Dentist
Orthodontist
Hospital
Medicine
Special Needs
(Glasses, braces, orthopedic devices)
Education
Private School $ $ $
Parochial School
College
Religious
Personal
Clothing $ $ $
Food 135.00
Barber/hairdresser
Credit payments
Credit card
Charge account
Memberships
Loans
Credit Union $ $ $
Miscellaneous
Household help $ $ $
Child care
Papers/books/magazines 13.58
Entertainment
Pay TV
Vacation
Gifts
Legal fees
Charitable eontribution 25.00
Other child support
Alimon y payments
Church Offering 137.50
Other
$ $ $
Total Expenses $ $]10.5.95 , $
Medical
Blue Shield
x X
INSURANCE
Company
Policy II
Coverage*
H W C
Hospital
Blue Cross
-X... ...x.....- _
Other
---
Other
AARP
-X... ...x.....- _
Health/Accident
Disability Income
Dental
Other
---
* H=Husband; W=Wife; J=Joint; C=Child
.
.
INCOME AND EXPENSE STATEMENT
OF
P. JOSEPH, ZINOBILE
I verify that the statements made in this Income
and Expense Statement are true and correct.
I understand that
false statements herein are made subject to the penalties of
18 Pa.C.S. S 4904 relating to unsworn falsification to authori-
ties.
Date: June 1994
P. Joseph Zinobile
INCOME
Employer: nla
Address:
Type of Workl
Payroll Number:
Pay Period (weekly, biweekly, etc.)1
Gross Pay per Pay Period: S
Itemized Payroll Deductions:
Federal Withholding S
Social Security S
Local Wage Tax S
State Income Tax S
Retirement S
Savings Bonds S
Credit Union S
Life Insurance S
Health Insurance S
Other (specify)
S
S
Net Pay per Pay Period: S
Other Income:
Week Month Year
(Fill in Appropriate Columnr---
Interest
Dividends
Pension
Annuity
Social Security
Rents
Royalties
Expense Account
Gifts
Unemployment Comp.
Workmen's Compo
Retirement Acct.
less withholdina
Total:
S
S
S
763.00
190.00
TOTAL INCOME:
'7<;n nn
-....2...0n nn
S S'l<;n'l nn S
S
Employment
Public Transportation $
. Lunch
$
$
EXPENSES
Weekly Monthly Yearly
(Fill in appropriate column)
Home
Mortgage/Rent $
Maintenance
Utilities
Electric
Gas
Oil/Furnance Maint.
Telephone
KXXIUf Cable
Sewer
$ $
60.41
28.35
143.29
46.80
18.32
22.50
Taxes
Real Estate $ $ 174.20 $
Personal Property
Income
Insurance
Homeowners $ S 31.08 $
Automobile 284.33
Life 235.66
Accident
Health 1577.86
Other
Automobile
Payments $ $ $
Fuel 100.00
Repairs
Amoco Motoring Plan 3.32
Medical
Doctor $ $ 68.75 $
Dentist
Orthodontist
Hospital
Medicine
Special Needs
(Glasses, braces, orthopedic devices)
~
Education
Private School S S S
Parochial School
College
Religious
Personal
Clothing S S S
Food 135. 00
Barber/hairdresser
Credit payments
Credit card
Charge account
Memberships
Loans
Credit Union S S S
Miscellaneous
Household help S S S
Child care
Papers/books/magazines 13.58
Entertainment
Pay TV
Vacation
Gifts
Legal fees
Charitable contribution 25.00
Other child support
Alimon y payments
Church Offering 137.50
Other
S S S
Total Expenses S S310,5.95 S
_.. .i
~
INSURANCE
Company
Policy #
Coverage.
H W C
Hospital
Blue Cross
---X... -X..- _
Other
Medical
Blue Shield
x X
Other
AARP
---X... -X..- _
Health/Accident
Disability Income
Dental
Other
· H=Husband; W=Wife; J=Joint; C=Child
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ANNA M. ZINOBILE,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
.
.
.
.
.
.
vs.
: NO. 1255 CIVIL
1994
.
.
P. JOSEPH ZINOBILE,
Defendant
.
.
IN DIVORCE
ORDER OF COURT
AND NOW, this ~ rr+ day of (j Ctc, ~.
1995, the economic claims raised in the proceedings having been
resolved in accordance with an agreement dated September 15,
1995, the appointment of the Master is vacated and counsel can
file a praecipe transmitting the record to the Court requesting
a final decree in divorce.
BY THE COURT,
cc:
Jennifer L. Lehman
Attorney for Plaintiff
Timothy J. O'Connell
Attorney for Defendant
_ ("~~,f 10/'1'1.5".
--V - -d.!?'
'.
.t,~; '~
I,'
",.t
56. U'; t2 f. ~ 130
~GREEMENT
THIS ~GREBKENT made this
15th
day of
St trf~hvJ
.
1995, by and between P. JOSEPH ZINOBILE, of 416 Candlewyck Road,
Camp Hill, cumberland County, Pennsylvania 17011, hereinafter for
-
the purpose of brevity referred to as "Husband" , and ANNA F.
ZINOBILE, of Shoreham Road, Camp Hill, Cumberland County,
Pennsylvania
17070, hereinafter for the purpose of brevity
referred to as "Wife",
WJ:TNESSETH:
WHEREAS, the parties hereto are husband and wife, having been
lawfully joined in marriage on November 28, 1953, and diverse
unhappy differences, disputes, misunderstandings and difficulties
have arisen between the parties, as a result of which they are
living separate and apart; and
WHEREAS, Wife has instituted an action for divorce in the
Court of Common Pleas of Cumberland County; and
WHEREAS, the parties hereto are the parents of five children,
all of whom are emancipated; and
WHEREAS, it is the desire of the parties, after long and
careful consideration, to amicably, adjust, compromise and settle
all property rights and all rights in, to or against each other's
property or estate, including property heretofore or subsequently
acquired by either party, and to settle all disputes existing
between them, including any and all claims for Wife's and/or
Husband's maintenance and/or for support, alimony counsel fees,
and costs.
1
NOW, THERBFORE, in consideration of the several mutual
promises and/or covenants and/or agreements hereinafter contained,
each of the parties hereto, intending to be legally bound hereby,
promises, covenants and agrees as follows:
FIRST: DIVORCB
The parties hereto further agree that the marriage is
irretrievably broken, and that they mutually consent to a divorce
and agree to execute section 330i(c) affidavits at the same time
as he or she executes the agreement. These consents will be filed
by Wife I s counsel as soon as possible after the signing of the
agreement. This Agreement shall remain in full force and effect
regardless of any change in the marital status of the parties. It
is warranted, covenanted, and represented by Husband and Wife, each
to the other, that this Agreement is lawful and enforceable and
this warranty, covenant and representation is made for the specific
purpose of inducing Husband and Wife to execute the Agreement.
Husband and Wife each knowingly and understandingly waive any and
all possible claims that this Agreement is, for any reason, illegal
or for any reason whatsoever of public policy, unenforceable in
whole or in part. Husband and Wife each does hereby warrant,
covenant and agree that, in any possible event, he and she is and
shall forever be estopped from asserting any illegality or
unenforceability as to all or any part of this Agreement.
2
SECOND: RELEASES
(A) Except as provided for in this Agreement, Husband and
Wife each hereby forever releases, remises, discharges and
quitclaims the other and the estate of the other, for all time to
come andrfor all purposes whatsoever, from any action of any nature
whatsoever in law or in equity.
(8) Each of the parties specifically covenants and agrees
and warrants and represents that the execution of this Agreement
and its terms and provisions are accepted by them as including,
inter alia, full and complete payment by the other for any and all
past, present or future obligations for support, care, education,
maintenance, and property rights of the other, and each further
covenants, warrants, represents and agrees that no action will be
instituted by them (or claim of any kind be made) for their
support, or for any claim for property or rights other than as set
forth in this Agreement, directly or indirectly, against the other,
in any court or any jurisdiction whatsoever. The parties hereto
recognize, acknowledge and agree that each of them hereafter shall
not have and does not have any rights or claims for support, care
and maintenance or for any rights or claims of property because the
provisions herein in the nature of a post-nuptial agreement are
fair and reasonable and the property distributions herein are fair
and reasonable, and Wife acknowledges that the property conveyed
to her is a fair and substantial portion of and division of
Husband's assets and Husband's rights to equitable distribution of
property, and Husband acknowledges that property allocated to him
3
is fair and a substantial portion of and division of the assets of
the parties and Wife's rights to equitable distribution of
property.
TBXRDI RELEASB OP TESTAMENTARY CLAIMS
Except as provided for in this Agreement, each of the parties
hereto shall have the right to dispose of his or her property by
Last will and Testament or otherwise, and each of them agrees that
the estate of the other, whether real, personal or mixed, shall be
and belong to the person or persons who would have become entitled
thereto as if the decedent had been the last to die. This
provision is intended to constitute a mutual waiver by the parties
of any rights to take against each other's last wills under the
present or future laws of any jurisdiction whatsoever, and is
intended to confer third party beneficiary rights upon the other
heirs and beneficiaries of each. Either party may, however, make
such provision for the other as he or she may desire in and by ,his
or her Last Will and Testament; and each of the parties further
covenants and agrees that he or she will permit any will of the
other to be probated and allow administration upon his or her
personal, real or mixed estate and effects to be taken out by the
person or persons who would have been entitled to do so had Husband
or Wife died during the lifetime of the other; and that neither
Husband nor Wife will claim against or contest the will and the
estate of the other. Each of the parties hereby releases,
relinquishes and waives any and all rights to act as executor or
4
executrix or administrator or administratrix of the other party's
estate. Each of the parties hereto further covenants and agrees
for himself and herself and his and her heirs, executors,
administrators and assigns, that he or she will never at any time
hereafter sue the other party of his or her heirs, executors,
administrators or assigns, for the purpose of enforcing any of the
rights relinquished under this paragraph.
FOURTH: LEGAL ADVICE
The provisions of this Agreement and their legal effect have
been fully explained to the parties by their respective counsel.
The Husband has employed and had the benefit of counsel of Timothy
J. O'Connell, Esquire, as his attorney. The Wife has had the
benefit of counsel of Jennifer L. Lehman, Esquire. Each party
acknowledges that he or she fully understands the facts and fully
understands his or her legal rights and obligations and each party
acknowledges and accepts that this Agreement is, in the
circumstances, fair and equitable, and that it is being entered
into freely and voluntarily after having received such advice and
with such knowledge, and that execution of the Agreement is not the
result of any duress or undue influence and that it is not the
result of any collusion or improper or illegal agreement or
agreements. The parties further acknowledge that they have each
made to the other a full accounting of their respective assets,
estate, liabilities and sources of income and that they waive any
specific enumeration thereof for the purpose of this Agreement.
5
-
Each party agrees that he or she shall not at any time raise a
defense or otherwise lack of such disclosure in any legal
proceeding involving this Agreement, with the exception of
disclosure that may have been fraudulently withheld.
FIFTH' SEPARATION AND NON-MOLESTATION AGREEMENT
It shall be lawful for Husband and Wife at all times hereafter
to live separate and apart from each other and to reside from time
to time at such place or places as they shall respectively deem
fit, free from any authority, control, restraint or interference,
direct or indirect, by each other. Each party agrees that he or
she will not molest or harass the other, or compel or endeavor to
compel the other to cohabit or dwell with him or her by any legal
or other proceedings. Each may have for her or his separate use
and benefit the right to conduct, carryon or engage in any
business, profession or occupation. Neither of the parties shall,
in any way whatsoever, interfere with the other's employment or
occupation. The parties are free to mutually and voluntarily make
any efforts at reconciliation as he, she or they shall deem proper.
It is specifically intended and understood and agreed by and
between the parties hereto that each is to be able to live not only
separate and apart from each other, but is also to be free to act
as if he or she were unmarried so far as any other persons are
concerned and each covenants and agrees not to harass or embarrass
the other or any other person who either party may hereafter see
socially. Each of the parties hereto covenants and agrees that
6
neither will deny or endeavor to abridge any right of support or
maintenance which the other might have because of any alleged
conduct with regard to any third persons; provided, however, that
the parties hereto recognize that it is intended that this
Agreement shall and does supersede any and all rights or claims to
support. Each of the parties hereto covenants and agrees that
neither will deny or endeavor to abridge any right of support or
maintenance which the other might have because of any alleged
conduct with regard to any third persons; provided, however, that
the parties hereto recognize that it is intended that this
Agreement shall and does supersede any and all rights or claims to
support. Each of the parties hereto covenants and agrees that he
and she will not charge the other with adultery in any action of
any nature whatsoever, directly or indirectly, or whether involving
the parties or third persons.
SIXTH: DEBTS
All debts, contracts, obligations or liabilities incurred at
any time in the past or future by either of the parties will be
paid promptly by said party, unless and except as otherwise
specifically set forth in this Agreement; and each of the parties
hereto further promises, covenants and agrees that each will now
and at all times hereafter save harmless and keep the other or his
or her estate indemnified and saved harmless from all debts or
liabilities incurred by him or her, as the case may be, and from
all actions, claims and demands whatsoever with respect thereto,
7
and from all costs, legal or otherwise, and counsel fees whatsoever
appertaining to such actions, claims and demands. Neither party
shall, after the date of this Agreement, contract or incur any debt
or liability for which the other or his or her property might be
responsible, and shall indemnify and save harmless the other from
any and all claims or demands made against her or him by reason of
debts or obligations incurred by her or him and from all costs,
legal costs and counsel fees unless provided to the contrary
herein.
Husband agrees that he will be solely responsible and hold
Wife harmless for any contingent liabilities for tax, interest or
penalties arising from any willful misrepresentation of or failure
to disclosure the nature or extent of his income during the period
of the marriage.
SEVENTH: EOUITABLE DISTRIBUTION
CA) Real Estate
1. 416 Candlewvck Road. Camo Hill. Within ten (10) days
after the signing of this agreement, Husband shall elect either to
purchase Wife's interest in the house and real estate located at
416 Candlewyck Road, or, to allow the same to be placed upon the
market and sold. The parties acknowledge that the appraised value,
based on an appraisal performed by Wm. J. Daylor dated July 17,
1995, is $130,000.00. In the event Husband elects to purchase
Wife's interest in an amount equalling at least one-half of the
said appraised value, Wife shall transfer her right, title and
8
interest in the property to Husband. Husband shall, within ninety
(90) days of making the election, pay to Wife the funds necessary
to satisfy her interest. In the event Husband offers to purchase
Wife's interest for an amount less than one-half the appraised
value, Wlfe shall accept or reject said offer in writing within ten
(10) days after receipt. In the event Wife rejects said offer, or
in the event Husband elects to place the house and real estate on
the market, the house shall then be placed upon the market.
Husband may elect to employ the services of a licensed real
estate broker or may act as broker himself. The property shall be
listed at the appraised value or any other price agreed to by the
parties. The parties, my mutual agreement, may accept any offer
less than the listed price or other counter-offer. In the event
that husband acts as real estate broker, no commission will be
charged in the event of a sale arising out of Husband's brokerage.
If a written offer to purchase the property acceptable to the
parties has not been made within sixty days of the date of listing,
the parties shall list the property with a mutually agreeable
broker.
Husband shall be entitled to the exclusive possession and the
use of the property until the date of sale. Husband shall be
responsible for all property, school or other real estate taxes
incurred since August 3, 1993 until transfer of property to either
Wife or a third party.
2. Walnut street. Wife agrees to transfer all of her right,
9
title and interest in 3432 and 3432A Walnut street to Husband. In
consideration of said transfer, Husband agrees to pay to Wife
eighteen thousand ($18,000.00) dollars. Husband agrees to pay for
the necessary deed preparation. Recording fees incident to the
transfer-of the properties shall be borne equally by the parties.
Husband agrees to indemnify and hold Wife harmless from any
responsibility regarding any obligation or liabilities incurred as
a result of ownership of the said Walnut Street properties.
(B) Automobiles
1. Wife will assign her right, title and interest in the
1988 Cadillac to Husband.
2. Husband will assign his right, title and interest in the
1992 Saturn to Wife. For purposes of this agreement, the Cadillac
and the Saturn shall be regarded as having equal values.
3. Husband will transfer his right, title and interest in
the Ford Econoline R.V. to Wife. For purposes of this agreement,
said vehicle is valued at eleven thousand five hundred ($11,500.00)
dollars. Husband shall credit one-half of this amount or five
thousand seven hundred fifty ($5,750.00) dollars against any other
payment due Wife under this agreement.
The parties agree to indemnify and hold harmless the other
from any loan, debt, claim or other obligation arising out of the
ownership of the vehicles assigned herein.
(e) Mutual Funds
The shares of the mutual funds shall be divided equally
between the parties. The type and number of shares to be divided
10
shall be the type and number of shares owned by Husband and Wife
on August 5, 1993, the date of separation. Said division shall be
in accordance with the following:
Husband
l:Ufi
Oppenheimer
Money Market 96,845.45
Strat Inc. A 5,412.00
Asset Alocc. A 2,173,962
Global A 5,742.118
Glob Biotech 1,228.7
*(48,422.725)
(2,706.00)
(1,086.98)
1,712.586
(2,014.766)
(614.35)
112.866
(71.837)
T. Rowe Price (IRA) 256.58
Northwestern Mutual Life (IRA)
equal as of August 5, 1993
Kemper (IRA)
equal as of August 5, 1993
*number in parenthesis is number of shares to be transferred to
Wife
(D) Stock
Citicorp - 100
USF&G - 300
Husband agrees to cooperate
basis for the transferred stock
(50)
(150 )
in providing Wife with the cost
(E) Bank Accounts
Harris $14,681.28
$8,449.10
($3,1~6.09)
($2,781.15)
PNC $5,562.31
(F) Loan to Louise Anne and Amv Jean
The payments made by the parties' daughter on the outstanding
balance of approximately $13,800 shall be divided equally between
the parties. The parties acknowledge that one thousand ($1,000.00)
dollars is currently owed the parties by their daughter, Amy Jean.
11
Any payments made by Amy Jean shall be divided equally between the
parties.
(G) Life Insurance
Husband will retain ownership of the Northwestern Mutual Life
Insurance policy no. 9864837 and Central Life Insurance policy no.
2535040, but agrees to designate and maintain wife during her life
as no less than a one-sixth beneficiary under both policies.
Husband agrees to maintain said policies during his lifetime and
may borrow against their value for this purpose. At request of
Wife, Husband will provide a release to Wife for the purpose of
verifying her beneficiary status on said policies.
(H) Personal Propertv
Each party agrees to assign their right, title and interest
to any and all personal property currently in the possession of the
other, including all appliances, furniture and other household
items, located at the marital residence. Husband agrees to return
to Wife her mother's fosteria and her father's coin collection.
(I) Health Insurance Reimbursement
Husband agrees to reimburse wife $256.31 representing her
interest in a health insurance refund received by Husband.
EIGHTH: ALIMONY. SUPPORT AND COUNSEL PEES
The parties agree to waive any right each may have against
the other for alimony, spousal support, and counsel fees.
12
NINTH: CONP'IRMATORY DOCUMENTS
Husband and Wife covenant and agree that they will forthwith
(and within at least fifteen [15] days after demand therefor)
execute any and all written instruments, assignments, releases,
satisfactions, deeds, notes or such other writings as may be
necessary or desirable for the property effectuation of this
Agreement. The parties will further deliver to each other whatever
personal papers, documents, or writings that each now possess which
are the property of the other.
TENTH: AGREEMENT TO CONTINUE IN EVENT OF DIVORCE
This Agreement shall remain in full force and effect unless
and until it is terminated either by mutual written consent of both
parties, or to the extent it is appropriately terminated by the
death of either party under the terms of this Agreement. The
failure of either party to insist upon strict performance of any
of the provisions of this Agreement shall not be construed as a
waiver of any subsequent default of the same or similar nature.
In the event that the marriage of the parties hereto is terminated
by divorce, this Agreement shall nevertheless remain in full force
and effect, and shall survive such decree and shall not in any way
be affected thereby, except as provided herein.
ELEVENTH: AGREEMENT BINDING ON HEIRS
The terms, provisions and conditions of this Agreement shall
be binding upon any and all of their heirsf executors,
13
administrators, successors and assigns of either of the respective
parties hereto, except as otherwise herein provided.
TWELPTH: APPLICABLE LA~
This Agreement shall be construed under the Laws of the
Commonwealth of Pennsylvania.
THIRTEENTH: PRIOR AGREEMENTS
It is understood and agreed that any and all property
settlement agreements which mayor have been executed prior to the
date and time of this Agreement are null and void and of no effect.
POURTEENTH: VOID CLAUSES
If any term, condition, clause or provision of this Agreement
shall be determined or declared to be void or invalid in law or
otherwise, then only that term, condition, clause or provision
shall be stricken from this Agreement and in all respects this
Agreement shall be valid and continue in full force, effect and
operation. No provision of this Agreement shall be interpreted for
or against any party because that party or that party's
representative drafted this Agreement in whole or in part.
FIFTEENTH: ENFORCEMENT
(A) It is expressly understood and agreed by and between the
parties hereto that this Agreement may be specifically enforced by
Husband or Wife in a court of equity, and the parties hereto agree
14
,
that if an action to enforce this Agreement is brought in equity
by either party, the other party will make no objection on the
alleged ground of lack of jurisdiction of said court on the ground
that there is an adequate remedy of law; The parties do not intend
or purport hereby to improperly confer jurisdiction on a court in
equity by their agreement, but they agree as provided herein for
.
the forum of equity in mutual recognition of the present state of
the law, and in recognition of the general jurisdiction of courts
in equity over agreements such as this one.
(B) Notwithstanding anything to the contrary herein, Wife or
Husband may also proceed with an action at law for redress of any
of his or her rights under the terms of this Agreement. In the
event that for any reason whatsoever, either party is obliged to
proceed at law for redress of his or her rights under the terms of
this Agreement, then it is specifically understood and agreed that
for and in specific consideration of the other provisions and
covenants of this Agreement, each shall waive any right to jury
trial so as to expedite the hearing and disposition of such case
and so as to avoid delay.
(C) It is specifically understood and agreed by the parties
that in the event of a default under the terms of this Agreement,
the non-defaulting party shall have the right to file a petition
for contempt and request such relief and remedies as authorized by
law of the court.
(D) Each party further hereby agrees to pay and to save and
hold harmless the other party from any and all attorney's fees,
15
costs and legal expenses that either may sustain, or incur or
become liable or answerable for, in any way whatsoever, or shall
pay upon, or in consequence of, any default or breach by the other
of any of the terms or provisions of this Agreement by reason of
which efther party shall or shall be obliged to retain or engage
counsel to initiate or maintain or defend proceedings against the
other at law or equity or both or in any way whatsoever; provided
that the party who seeks to recover such attorney's fees, costs,
and legal expenses and expenses must first be successful in whole
or in part, before there would be any liability for attorney fees.
(E) All remedies provided by law and all remedies provided
for in this Agreement for enforcement of this Agreement shall be
deemed to be cumulative and the exercise of one remedy shall not
bar or prevent the pursuit of any other remedy and either party
may elect to pursue such remedies simultaneously and the exercise
of a remedy one or more times shall not exhaust its use or prevent
further pursuit of such remedy.
(F) This agreement shall not be deemed to merge into the
decree of divorce.
IN WITNESS WHEREOF, and intending to be legally bound hereby,
the parties hereto have hereunto set their hands and seals the day
and year first above written.
witness:
"AI"!llu)i!. J.Jv'l1'.4tt../
,
SEAL)
(SEAL)
16
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II /.x ~71'
Mt.. I) 11"14-
STIPULATION AGAINST l.lENS
THIS AGREEHENT made the _/111.,_ da~ 01' HlIl'ch, 111114, b~ and
between WOLF BUILDERS, INC, 01' IUa6 WOHt LIsburn Road,
Mechanicsburg, PA 17066, hereinllfter referred Lo liS Contractor,
and
JOHN K. REESE and EVELYN M. REESE, husband and wife, of 4 Ian
Drive, Mt. Holly Springs, PA 170U6, herelnal'tel' referred to as
Owners, whereby the former undertook and allreed to erect and
construct improvements to a dwel11nll house on the certain lot of
ground situate In DlcklnHon Township, Cumberland County,
Pennsylvania, more fully bounded and described on the attached
Exhibit "A".
NOW THEREFORE, THIS AGREEHENT WITNESSETH; That the said
Contractor, for and in conRideratlon 01' the Hum 01' IS1.00) Dollar
to them in hand paid by Owner, the receipl. whereof is hereby
acknowledged, and the furl.her consideration mentioned in the
agreement aforesaid, for themHelveH and their subcontractors, and
all partieR acting throullh or under I.hem, covenant and agree that
no mechanic's liens or claims Hhall be filed or maintained by
them or any of them againHI. the Hald buildings and the lot of
ground appurtenant thereto for or on account 01' any work done or
materllllR furniRhed by them or IIny 01' I.hem undel' said contract or
otherwise, for, towardH, In, or about the erection and
construction 01' the sllld bulldllll(R on tht'! lot above described,
and the said Contractor, for I.hemselves, their subcontractors and
others under them hereby expreRHly waive and relinquish the right
to have, file, IInd malntllin any mechllnlc'R liens or claims
against the said hulldings or any of t.hem, and agree that this
instrument, waiving t.he right of lien, shall be an independent
covenant.
WITNESS our hllndR and sOllls this
,I.
\I
dllY of March, 1994.
WOI.F au II.DERS, rNC.
~~//'J,/tIL"-Ic-
__Ll~?- ,?d____
____H_ )_
u,,-~-{{tdf)
OIiUYW-rlLF , Pres' e
_JJJ!:LXO~H
~N-K. REESE, Owner
-
..~,,--.tn...-~I .
EVELYN M. REESE, Owner
.
ACKNOWLEDGMENT
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
SS
On this "tl.. day of March, 1994, before me, the undersigned
officer, personally appeared GARY WOLF, President of Wolf
Builders, Inc., known to me lor satisfactorily proven) to be the
person whose name is subscribed to the within instrument, and
acknowledged that he executed the same for the purposes therein
contained.
IN WITNESS WHEREOF, I hereunto set my hand and official
seal.
~// ~~
Notary Pub j .
~SeaI
JcsI1 E. Trill. NoI2JY P\JlIC
~Nao.\1I?'TI\~~,:";:na.~
~tl Ccn'-
ACKNOWLEDGMENT
COMHONWEALTH OF PENNSYLVANIA
SS
COUNTY OF CUMBERLAND
On this (/~"" day of March, 1994, before me, the undersigned
officer, personally appeared JOHN K. REESE and EVELYN M. REESE,
husband and wife, Owners, known to me (or satisfactorily proven)
to be the persons whose name are subscribed to the within
instrument, and acknowledged that they executed the same for the
purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official
seal.
</
Notar~ Publ c Jo<rf\E. TriII.~CCJlI1IY
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