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" , 'J" !:oil " , " ~ " " .. ,~ n , ~ " C60 l IpJU~ '0081: 111101 ~;d .-....--- , PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This plO%l ""'Vl"" I.HI:, I !.II IIL[ [J WI/IIIIIIIVII:,) /J4 Y.'; .'117m ''''''0 tlw "ollce o/lfppflU/. C/I~ applicab/a bexas) n ~ALTH OF PENNSYLVANIA lO" COUNTY OF --eurber.] and-- . ; .. C" .r. & 2.- AFFIDAVIT: I hCfUhl' ....},.Io'W r), lllli,lll lI\{lt I ,,-,'..;~d iii CI cory of Ih" /'kli, Po l,l /If'I''''11. (',""!TI",' 1':;'(1"; ""1 .94-6823 Civil_.Term IJpt;rr thn Di,,>lticL:-Ju~litO du!igflOlud theroln on (dale ()f ~;("f~lct:L __Decerrt>er. 2 JI,J 94. ! I Lr I '-1\\11,,11 ',f'l"i"n ''''by (cwt'fittili) (rRglsleororl) mall. tend",'s ,uCI'ipl utlodu;d I\I-'f;:-l.:. Ilnd upolIll'!' nrF"j[IHII';J//JeJ Ot;1r]ene:. Hawki,O$.,,______.______.. ,on ....Decent>e.r._.2 _.. 19_9.4..!! III' ";'I',..lil1l '.'o'hIU' ~! by II .-.lIifiHI) (r"tJi~16r6d) ,noli. 5fmdor's ft.culpl nllnched herelo. IXJ and "-:llhor thot I '.1':1";'11 Ill'1 Rlllu 10 Flf'j lJ r'J"'llll1l/11 '"(,.I,rnl'.-.II',IIlH the (lLove Nl,llico of Appool upon the oPPQlloQ(I) 10 December 2 q4 I,l,ohon\ Iho Ruin w{n wIJr"',~f)d yO .__U'___ . _ ._._ ___ __., l'r _ .' I] by por!\ollnlsorvicfJ !&l bylcerllflod) (reol.IL~rod) 1 .,.J1~J'l1d~F/7 - ,.' '......;..'/! /'};~ . :-'.'?'7.~~' (. . '''',u.A,r ! /.' /t'Cl -' ....':....-..., /. ..'-.- :~ ;.".r----IC.---L- ) SJgnerUfe 01,,,,,,,,, , '-- - moil, sendor's rocoipl nlluc"l~d IWHllo, Bn l..Hl[ V1 . 199Lf-- My commlulon e.llpires on rlUV. J-, .19~. NOTARIAL SEAL kELLY a. MURRAY, Nolary Public Carll.,. 80ro. Cumbarland Counly PA My Commllllon Explr.. Nov 2. 1~ , , I J ... . " DARLENE A. HAWKINS, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA vs. 94 - CIVIL TERM JOSEPH HAWKINS, Dsfendant CIVIL ACTION - JURY TRIAL DEMANDED COMPLAINT AND NOW, comes the Plaintiff, Darlene A. Hawkins, by and through her attorney, R. Mark Thomas, Esquire, and files this Complaint against the Defendant as follows: 1. Plaintiff, Darlene Hawkins, is an adult individual who currently resides at 37 Winchester Gardens, carlisle, Cumberland county, Pennsylvania 17013. 2. Defendant, Joseph Hawkins, is an adult individual who currently resides at 2391 Eno1a Road, carlisle, Cumberland county, Pennsylvania 17013. 3. Plaintiff and Defendant were married on May 28, 1990. 4. At the time the parties were married the Plaintiff was the owner of a solid wood dining room set, including six chairs, table, buffet and china closet. 5. Plaintiff moved her complete dining room set of furniture into the marital residence which was located at 2391 Enola Road, carlisle, Cumberland county, Pennsylvania. 6. On or about May 29, 1992, the parties began to live separate and apart due to differences having arisen between the parties. 7. Shortly after having commenced to live separate and apart the Defendant, without authorization from the Plaintiff, removed the solid wood dining room set, including six chairs, table, buffet and china closet from the marital residence which was where the Plaintiff was residing during the separation. 8. For approximately two years the Defendant refused to return these items to Plaintiff despite repeated requests made by the plaintiff for the return of these items. COUNT I - BREACH OF BAILMENT 9. Paragraphs 1 through 8 are incorporated herein as if set forth at length. 10. Plaintiff avers that the Defendant was in the position of a bailee with regard to these items and owed a duty to take care of these items until they were returned to Plaintiff. 11. These items were finally returned to Plaintiff by the Defendant pursuant to an Agreement reached with a Divorce Master who had been appointed in the divorce proceedings. 12. When these items of furniture were returned by Defendant to Plaintiff the items were severely damaged. 13. The damage complained of by the Plaintiff did not exist as of the date the Defendant removed thess items from Plaintiff's custody and control in 1992. 14. The Plaintiff paid $1,696.00 for the purchase of this dining room set in 1985. 15. The dining room set is damaged to the extent that major repairs would be needed before the dining room set could be used. 16. The damage to the dining room set was the direct result of the Defendant's breach of his implied duty as a bailee to care for the property which was under his control and in his possossion. 17. The cost to repair or replace Plaintiff's damaged furniture is $1,200. WHEREFORE, Plaintiff seeks damages from the Defendant in the amount of $1,200.00 which is the reasonable cost to either repair or replace the items. COUNT II - NBGLIGBNCB 18. Paragraphs 1 through 17 are incorporated herein as if set forth at length. 19. Defendant owed Plaintiff a duty to care for the property which he knew was the sole property of Plaintiff and which was under his control. 20. Defendant negligently and recklessly breached his duty of care to plaintiff as follows: (a) He failed to maintain the property in the same condition it was in when he seized control of the property I (b) He failed to return the property which rightfully belonged to Plaintiff despite Plaintiff's repeated demands. (c) Defendant acted negligently and recklessly when he seized this property without authorization from Plaintiff. 21. As a result of Defendant's negligence, Plaintiff has suffered damages in the amount of $1,200.00. WHEREFORE, Plaintiff demands judgment against Defendant in the amount of $1,200.00. 14. The Defendant Ia without IlfI,Y information on whJch to make II responae IlDd therefore this allegation Ia denied IlDd strict proof Ia demanded lit trial. 15. The Defendant Ia without IlfI,Y information on which to make II re-:ponae IlDd therefore thIa allegation Ia denied IlDd strict proof Ia demanded Ilt trial. 10. Denied, The Defendant had no duty either Implied or ellplicit Mil bailee nor WIllI there IlfI,Y damage to the property while the property WIllI In his control. 17. The Defendant Ia without IlfI,Y information on which to make Il reeponae IlDd therefore thIa allegation Ia denied and strict proof Ia demanded at trial, COUNT II . NEGLIGENCE 18. Answers 1-17 are Incorporated herein and set forth Ilt length. 19, Denied, The property WIllI the household furnlshlnga of the I1UItrimonl.a1 home and were not declared to be sole property of the PlalntllT's until the Mll8ter's Agreement. 20. Denied. A. The Defendant did not negligently or recklellllly breach III1Y duties In that he did maintain the property In the earne condition ll8 it WIllI when it became In his control. B, The property WIllI a part of the marital negotiations which have not been resolved, C. The Defendant did not act negligently and reckle881y when he took marital property from the home upon separation, 21. Denied. COUNT m - PUNITIVE DAMAGES 22. Paragrapha 1.21 are Incorporated herein Mia set forth Ilt length, 23. Denied, 24, Denied. COUNT IV - NEW MAITER 1. On or about Friday, June 17, 1994, the PlalntIIT entered Into an Agreement with the Defendant In front of the Divorce Master, Robert Elicker, Esquire, A copy of lIIlid Agreement is Ilttached hereto and Incorporated herein ll8 Exhibit A. 2. BeginnIng on the last line of Pnge 2 of the Memorandum atAtea 'H W1band ill going to place thOlle Itema In hIa pickup truck at hie residence and transfer the Itema to Wlfe'a residence at 87 Winchester GardelUl thie date to arrive at 8:00 P.M. HWlband will not 88lIlat In removing the Itema from the pickup truck, nor will he go Into the Wife's residence. It being Wife's reapolUllbWty to unload the Items and take pollllCll8lon. She nlll,Y have the Malatence of her son or neighbor If required. Mr, Tholl1Al has contacted the North Middleton TOWlUlhlp Police and haa requested they have an officer prellllnt at the time of the delivery In order to monitor the transfer of the property.' 8, At 8:00 P.M, on June 17, 1994, the Defendant did deliver IIllid property to the PlalntUTIn accordance with the Agreement. 4. On or about 8:00 P.M. on June 17, 1994, a police officer from the North Middleton TOWlUlhlp Police Department WM prellllnt and monitored the transfer of the property. 5. At no time during the transfer of the property did the P1aIntUT call to the attention of the Defendant nor the monitoring police officer any damage to IIllid property, 6. On Page 4 on the next to last paragraph of the Agreement, the parties agreed that 'the resolution of the non-marital and marital property M set forth In thie Memorandum In Agreement ill conclusive (emphasla added) of all of the lallues remaining between ths parties. 7. On the fina1 page of the attached Memorandum states 'The statement made by the Master In the prellllnce of counsel and the parties is the substantive agreement of the partlea which means that the agreement M atAted by the Master is not subject to any review or modification from thla day forward and that the agreement is to be carried out M if It were an Order of Court.' 8. On June 22, 1994, counsel for the PJalntUTwrote to counsel for the Defendant discuBaIng matters to do with the divorce. There was no mention In this letter of any damage to the property turned over on June 17, 1994. A copy of the letter is attached hereto and Incorporated herein as Exhibit B. 9. On July I, 1994, PlalntiIT. counsel wrote to Defendant's counsel and for the Ilrat tlnle mentioned any damage to the table. A copy of Illlid letter is attached hereto and Incorporated 811 Exhibit C. . . vs. IN TilE COUR'!' OF COMMON PLEAS OF CUMBERLAND COUN'ry, PENNSYLVANIA NO. B01 CIVIL 1992 JOSEPII 1IA1~KINS, Plaintiff DARLENE IIAWKINS, Defendant IN DIVORCE MEMORANDUM and AGREEMENT QE.....'I'lJ.f~F:lllli TilE MAS'!'ER: Today is Friday, June 17, 1994. Present in the hearing room is the Plaintiff, Joseph Hawkins and his counsel, Robert J. MUlderig and the Defendant, Darlene Hawkins and her counsel, R. Mark Thomas, The purpose of today's meeting was to allow the parties and counsel to engage in negotiations prior to scheduling a hearing in order to determine if we could resolve the pending economic claims in the divorce action. A divorce complaint was filed on March 2, 1992, raising grounds for divorce of irretrievable breakdown of the marriage and illdlynities. On August 12/ 1992, the Defendant filed an answer to the complaint and a counterclaim raising the economic claims of equitable distribution, alimony, and alimony pendente lite. An amended divorce complaint was filed on March 4, 1994, averring that two years had passed since the date of separation of the parties on March 2, 1992, and that the Plaintiff was entitled to a divorce under section 3301(d) of the Domestic Relations Code. The Defendant filed a E.XIlIBI'r A those items in his pickup truck at his residence and transport the items to wife's residence at J7 Winchester Gardens this date to arrive at 3:00 p.m. lIusband will not assist in removing the items from the pickup truck nor will he go into wife's residence, it being wife's responsibility to unload the items and take possession. She may have the assistance of her son or neighbor if required. Mr. Thomas has contacted the North Middleton Township Police and has requested that they have an officer present at the time of delivery in order to monitor the transfer of the property. The parties are the owners of certain marital assets that have been listed on the pre-trial statements as follows: Used tractor with snow blower Rototiller Snow blade for tractor Weedwhacker Penn Supreme deep freezer 1952 Plymouth automobile Red wagon for tractor These items will be delivered by husband to an auctioneer selected by counsel to be sold at auction as soon as possible. Upon the delivery of the items to the auctioneer wife will execute an affidavit of consent agreeing to the divorce so . , that th~ divorce can be concluded under section 3301(c) of the Domestic Relations Code. Also included as a marital asset in the list that the parties provided was a Craftsman Sears riding mower. That mower is in husband's possession and husband indicates that he owes approximately $BOO.OO to Sears resulting from the purchase of that mower. lie is going to provide counsel with a copy of the bill that remains on that mower so counsel can verify the amount that is still due for the purchase of that mower. with regard to the mower, it is not going to be sold with the other marital assets as listed above but will be retained by husband as his sole and separate property providing that husband continues to be responsible for the balance due to Sears on the mower. Husband agrees to indemnify and save wife harmless on account of any claims which may be made by Sears against wife on account of the balance due and owing on the Craftsman riding mower. The resolution of the nonmarital and marital property as set forth in this memorandum and agreement is conclusive of all of the issues remaining between the parties. As previously indicated the divorce will proceed upon the delivery of the marital assets to the auctioneer. In the event that the auctioneer is unable or unwilling to pick up the items of property that are to be delivered for sale, then tile parties agree that they will share the costs of transporting the property to the auctioneer. The statement made by the Master in the presence of counsel and the parties is the substantive agreement of the parties which means t.hat the agreement as stated by the Master is not subject to any review or modification from this day forward and that the agreement is to be carried out as if it were an order of Court. TilE MAS1'ER: Mr. lIawkins, you've been present while I have stated the agreement on the record? MR. IIAWKINS: Yes, sir, I have. THE MASTER: And do you understand what I've stated on the record? MR. HAWKINS: Yes, I do. THE MASTER: And are you in agreement with what's been stated on the record? MR. HAWKINS: Yes, I am. TilE MASTER: Mrs. Hawkins, have you been present while the agreement has been stated on the record? MRS. HAI~KINS: Yes, I have. TIlE MASTER: Do you understand what has been stated on the record? MRS. 1IA1~KINS: Yes, TilE MAS'rEr<: Are you in agreement with what has been stated on the record? MRS. HAWKINS: Yes. MURREL R. WALTERS, III R. MARK TIIOMAS A /lorneys el Lew 64 Eesl Meln SIreel Mechenicsburg, Pennsylvenle 17066 (717J 697.4650 FAX (7I7J 697.9396 July 1, 1994 Robert MU1derig, Esquire 32 South Bedford Street Carlisle, PA 17013 ReI Hawkine v. Hawkine Dear Bob: Darlene Hawkins came into my office on June 30, 1994, and it was my impression that she was coming in at that time to execute the affidavit of consent to the divorce. However, when she came into my office she brought photographs showing serious damage to the dining room set which was hers prior to the marriage and which was wrongfully in the possession of your client. Your client has two choices. First, he can replace the dining room set which is damaged with an appropriate one of equal value which is acceptable to my client. Second, if he refuses to replace the dining room set with one that is acceptable to my client, then my client will not execute the affidavit the consent, and my client will pursue an action against him for a negligent bailment, or whatever cause of action would lie. I do not have photographs to send to you, but would be willing to show them to you. !n the meantime, you can discuss this matter with your client who knows full well the extent of the damage to the dining room set of my client. In addition, the vacuum cleaner which was provided to my client per the agreement, is also in bad shape and not usable. We would expect that to be replaced as well. I don't look forward to hearing from you but will discuss this matter with you when you are ready. Very truly yours~ j(/?~t.f II/u~ R. Mark Thomas, Esquire RMT/mlr cc: Darlene Hawkins l'.XIIII3IT C