The URL can be used to link to this page

Home My WebLink About02-4017Theresa Barrett Male, Esquire Supreme Court # 46439 513 North Second Street Harrisburg, PA 17101 (717) 233-3220 Counsel for Plaintiffs COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DWANE E. WILKINSON and CONSTANCE S. WILKINSON Plaintiffs DWANE S. WILKINSON and HEATHER L. WILKINSON Defendants To the Prothonotary: NO. 02- d./OI7 Civil Term CIVIL ACTION - LAW PRAECIPE Please issue a Writ of Summons against Defendant Dwane S. Wilkinson, residing at 5-A Old South Court, Bluffton, Beaufort County, South Carolina 29910 and Defendant Heather L. Wilkinson, residing at 36 West Coover Street, Mechanicsburg, Cumberland County, Pennsylvania 17055. Date: August 23, 2002 Theresa Barrett Male, Esquire Supreme Court # 46439 513 North Second Street Harrisburg, Pennsylvania 17101 (717) 233-3220 Counsel for Plaintiffs Commonwealth of Pennsylvania County of Cumberland WRIT OF SUMMONS DWANE E. WILKINSON AND CONSTANCE S. WILKINSON Plaintiff Vs. DWANE S. WILKINSON 5-A OLD SOUTH COURT BLUFFTON, BEAUFORT COUNTY, SOUTH CAROLINA 22910 HEATHER L. WILKINSON 36 WEST COOVER STREET MECHANICSBURG, PA 17055 Defendant Court of Common Pleas No. 02-4017 CIVIL TERM In CivilAction-Law To DWANE S. WILKINSON AND HEATHER L. WILKINSON, You are hereby notified that DWANE E. WILKINSON AND CONSTANCE S. WILKINSON, the Plaintiff has / have commenced an action in Civil Action-Law against you which you are required to defend or a default judgment may be entered against you. (SEAL) Date AUGUST 23, 2002 CURTIS R. LONG Prothonotary Deputy Attorney: Name: THERESA BARRET MALE, ESQUIRE Address: 513 NORTH SECOND STREET HARRISBURG~ PA 17101 Attorney for: Plaintiff Telephone: 717-233-3220 Supreme Court ID No. 46439 SHERIFF'S RETURN - CASE NO: 2002-04017 P COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND WILKINSON DWkNE E ET AL VS. WILKINSON DWANE S ET AL U.S. CERTIFIED MAIL R. Thomas Kline , Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law served the within named DEFENDANT ,WILKINSON DWANE S prepaid, 5-A OLD by United States Certified Mail postage on the 26th day of August ,2002 at 0000:00 HOURS at SOUTH COURT BLUFFTON, SC 22910 and attested copy of the attached WRIT OF SUMMONS with a true Together The returned receipt card was signed by DWANE WILKINSON 08/29/2002 Additional Comments: on Sheriff's Costs: Docketing Cert Mail Affidavit Surcharge 18 00 4 42 00 10 00 00 32 42 Paid by THERESA BARRETT MALE Sworn and subscribed to before me this ~ ~- day ~7~ ~_ A.D. /P~bt~Bnot a~ Sheriff of Cumberland County on 09/11/2002 SHERIFF'S RETURN CASE NO: 2002-04017 P COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND - NOT FOUND WILKINSON DWANE E ET AL VS WILKINSON DWANE S ET AL R. Thomas Kline ,Sheriff or Deputy Sheriff, who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named defendant, DEFENDANT WILKINSON HEATHER L unable to locate Her WRIT OF SUMMONS but was in his bailiwick. He therefore returns the the within named DEFENDANT , NOT FOUND , as to WILKINSON HEATHER L HOUSE IS VACANT. MAIL IS STILL DELIVERED TO ADDRESS GIVEN. POST OFFICE HAS NO FORWARDING. Sheriff's Costs: Docketing 6.00 Service 13.80 Affidavit .00 Surcharge 10.00 .00 29.80 ~So answer Sheriff of Cumberland County THERESA BARRETT MALE 09/11/2002 Sworn and subscribed to before me this ~ day of,~ ~ ~ A.D. PrOthonotary ' Commonwealth of Pennsylvania County of Cumberland WRIT OF SUMMONS DWANE E. WILKINSON AND CONSTANCE S. WILKINSON Plaintiff Vs. DWANE S. WILKINSON 5-A OLD SOUTH COURT BLUFFTON, BEAUFORT COUNTY, SOUTH CAROLINA 22910 HEATHER L. WILKINSON 36 WEST COOVER STREET MECHANICSBURG, PA 17055 Defendant Court of Common Pleas No. 02-4017 CIVIL TERM In CivilAction-Law To DWANE S. WILKINSON AND HEATHER L. WILKINSON, You are hereby notified that DWANE E. WILKINSON AND CONSTANCE S. WILKINSON, the Plaintiff has / have commenced an action in Civil Action-Law against you which you arc required to defend or a dcfanlt judgment may be entered against you. (SEAL) Date AUGUST 23, 2002 CURTIS R. LONG Prothonotary Deputy Attorney: Name: THERESA BARRET MALE, ESQUIRE Address: 513 NORTH SECOND STREET HARRISBURG, PA 17101 Attorney for: Plaintiff Telephone: 717-233-3220 Supreme Court ID No. 46439 TRUE COPY FROM RECORD in Testimony whereof, I here unto set my hand and the seal pi said Cou~ at Carlisle, Pa. Thi~y ~. Pro~honota~/ · Complete items 1, 2, and 3. Also complete A. Signature item 4 if Restricted Delivery is desired. · Print your name and address on the reverse so that we can return the card to you. · Attach this card to the back of the mailpiece, R. Received or on the front if spe.ce permits. 1. Article Addressed to: Dwane S. Wilkinson 5-A Old South Court Bluffton, SC 22910 [] Agent Date of Delivery item 17 [] Yes ff YES, enter delivery address below: [] No 3. Service Type Mail [] Express Mail [] Registered [] Return Receipt for Merchandise [] ~r~sured Mail [] C.O.D. 4. Restricted Delivery? (Extra Fee) ~ [] Yes 7001 2510 0009 1017 8404~. ~. :. ~..~. , 02-40/7 civ PS Form 381 1, August 2001 Domestic Return Receipt 102595o01oM-0381 Theresa Barrett Male, Esquire Supreme Court # 46439 513 North Second Street Harrisburg, PA 17101 (717) 233-3220 Counsel for Plaintiffs COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DWANE E. WILKINSON and CONSTANCE S. WILKINSON Plaintiffs DWANE S. WILKINSON and HEATHER L. CLAWSER (formerly Wilkinson) Defendants NO. 02-4017 Civil Term CIVIL ACTION - LAW PRAECIPE To the Prothonotary: Please reissue the Writ of Summons against Defendant Heather L. Clawser (formerly Wilkinson) residing at 1341 Old Willow Mill Road, Mechanicsburg, Cumberland County, Pennsylvania 17055. Theresa Barrett Male, Esquire Supreme Court # 46439 513 North Second Street Harrisburg, Pennsylvania 17101 (717) 233-3220 Counsel for Plaintiffs Date: October 2002 Theresa Barrett Male, Esquire Supreme Court # 46439 513 North Second Street Harrisburg, PA 17101 (717) 233-3220 Gounsel for Plaintiffs COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DWANE E. WILKINSON and CONSTANCE S. WILKINSON Plaintiffs DWANE S. WILKINSON and HEATHER L. CLAWSER (formerly Wilkinson) Defendants NO. 02-4017 Civil Term CIVIL ACTION - LAW PRAECIPE To the Prothonotary: Please reissue the Writ of Sumanons against Defendant Heather L. Clawser (formerly Wilkinson) residing at 1341 Old Willow Mill Road, Mechanicsburg, Cumberland County, Pennsylvania 17055. Theresa Barrett Male, Esquire Supreme Court # 46439 513 North Second Street Harrisburg, Pennsylvania 17101 (717) 233-3220 Counsel for Plaintiffs Date: October 2002 SHERIFF'S RETURN - REGULAR CASE NO: 2002-04017 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WILKINSON DWANE E ET AL VS WILKINSON DWANE S ET AL RICHARD SMITH Cumberland County,Pennsylvania, says, the within WRIT OF SUMMONS was served upon WILKINSON HEATHER L AKA HEATHER CLAWSER Sheriff or Deputy Sheriff of who being duly sworn according to law, the DEFENDANT at 1035:00 HOURS, on the 31st day of October , 2002 at KEYSTONE HEALTH 300 CORPORATE CENTER DRIVE CAMP HILL, PA 17011 by handing to HEATHER CLAWSER WILKINSON a true and attested copy of WRIT OF SUMMONS together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 10.35 Affidavit .00 Surcharge 10.00 .00 38.35 Sworn and Subscribed to before me this '?~- day of So Answers: R. Thomas Kline 11/01/2002 Oe~y Sheriff Pro{h6not'aP~ Johnson, Duffle, Stewart & Weidner By: Mark C. Duffle I.D. No. 75906 301 Market Street P. O. Box 109 Lcmoync, Pennsylvania 17043-0109 (717) 761-4540 Attorneys for Defendant Heather L. Wilkinson DWANE E. WILKINSON and CONSTANCE S. WILKINSON, Plaintiffs V. DWANE S. WILKINSON and -lEATHER L. WILKINSON, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-4017 Civil Term CIVIL ACTION - LAW PRAECIPE TO ENTER APPEARANCE AND RULE TO FILE COMPLAINT AND NOW, this -T~"- day of January 2003, enter our appearance for Defendant Heather L. Wilkinson, and issue a rule to Plaintiff to file a complaint within twenty (20) days of the date of service thereof, or suffer judgment of non pros. JOHNSON, DUFFLE, STEW~ WEIDNER I~ark C. Duffle ~ RULE TO FILE COMPLAINT TO THE PLAINTIFF: AND NOW, this ~'~ day of ~Jgl.~_~t.,t~,~e_~./ complaint in the above-captioned action within twee"ty judgment of non pros. 2003, a Rule is hereby issued to you to file your (20) days of the date of service hereof, or suffer :166509 Theresa Barrett Male Supreme Court # 46439 513 North Second Street Harrisburg, PA 17101 (717) 233-3220 Counsel for Plaintiffs COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DWANE E. WILKINSON and CONSTANCE S. WILKINSON Plaintiffs DWANE S. WILKINSON and HEATHER L. CLAWSER (formerly Wilkinson) Defendants No. 02-40117 Civil Term CIVIL ACTION - LAW ACCEPTANCE OF SERVICE I accept service of the Complaint. I certify that I am authorized to accept s~ ........ behalf of Defendant Dwane S. Wilkinson. Cltarles Rec/~r~ Esquire Date: May ~)°~ ,2003 Theresa Barrett Male Supreme Court # 46439 513 North Second Street Harrisburg, PA 17101 (717) 233-3220 Counsel for Plaimiffs COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DWANE E. WILKINSON and CONSTANCE S. WILKINSON Plaintiffs DWANE S. WILKINSON and HEATHER L. CLAWSER (formerly Wilkinson) Defendants No. 02-4017 Civil Term CIVIL ACTION - LAW ACCEPTANCE OF SERVICE I accept service of the Complaim. I certify that I am authorized to accept service on behalf of Defendant Heather L. Clawser. Date: May a~7'~'- ,2003 k'/C. Duffle, Es~:~// Theresa Barrett Male Supreme Court # 46439 513 North Second Street Harrisburg, PA 17101 (717) 233-3220 Counsel for Plaintiffs COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DWANE E. WILKINSON and CONSTANCE S. WILKINSON Plaintiffs DWANE S. WILKINSON and HEATHER L. CLAWSER (formerly Wilkinson) Defendants No. 024017 Civil Term CIVIL ACTION PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADINGS Plaintiffs Dwane E. Wilkinson and Constance S. Wilkinson, who reside at 431 South High Street, Mechanicsburg, Cumberland County, Pennsylvania 17055, instituted this action by writ of summons filed on August 23, 2002. A certified copy of the docket entries is attached as Exhibit 1. 2. The Cumberland County Sheriff served the writ on Defendant Dwane S. Wilkinson by certified mail at his residence at 5-A Old South Court, Bluffion, South Carolina 29910. See Exhibit 1. 3. After not finding Defendant Heather L. Clawser, formerly Wilkinson, at her address, the Sheriff served a reissued writ on Defendant Ctawser personally at her place of employment. See Exhibit 1. 4. On January 8, 2003, Defendant Clawser, by md through her attorneys, Johnson, Duffle, Stewart and Weidner, filed a praecipe requesting a role to f~e a complaint. On January 8, 2003, the prothonotary issued the :rule. The parties extended the filing date of Plaintiffs' complaint to May 22, 2003. On May 22, 2003, Plaintiffs filed their verified complaint, a copy of which is attached as Exhibit 2. 8. Plaintiffs' complaint was endorsed with a notice 1:o defend. See Exhibit 2. 9. Plaintiffs' complaint raises three counts: breacl:t of express oral contract; unjust enrichment; and constructive trust. See Exhibit 2. 10. Plaintiffs maintain that: a. In 1997, defendants, who then were married, requested that Plaintiffs assist them in purchasing a home located at 36 Coover Street, Mechanicsburg, Cumberland County, Pennsylvania. b. Defendants agreed to repay the $22,833.19 which Plaintiffs advanced to them in full at settlement on the sale of the Coover Street property. c. After Plaintiffs instituted this action, Defendants sold the Coover Street property. d. By agreement, Counsel for Defendant ~qlkinson deposited the $22,833.19 into an escrow account. e. Plaintiffs seek an order directing counsel to release the escrowed funds to Plaintiffs. Exhibit 2; Complaint. 11. Defendant Wilkinson agrees with Plaintiffs that he and Defendant Clawser promised to repay Plaintiffs in full when the defendants sold the Coover Street property. 2 12. Defendant Clawser claims that Plaintiffs gifted the $22,833.19 to defendants and therefore are not entitled to relief. 13. On May 27, 2003, counsel for Defendant Clawser accepted service of the Complaint on behalf of their client. A copy of the Acceptance is attached as Exhibit 3. 14. Defendant Clawser did not file a subsequent pleading within twenty (20) days after service of the complaint, as required by Pa. R.C.P. 1026. 15. Defendant Clawser did not request an extension of time within which to file her answer or other responsive pleading. 16. Defendant Clawser did serve Plaintiffs with a request for production of documents, which Plaintiffs answered in advance of the due date. 17. On May 28, 2003, Charles Rector, Esquire, counsel for Defendant Wilkinson accepted service of the Complaint on behalf of his client. A copy of the Acceptance is attached as Exhibit 4. 18. Defendant Wilkinson did not file a subsequent pleading within twenty (20) days after service of the complaint, as required by Pa. R.C.P. 1026. 19. Defendant Wilkinson did not request an extension of time within which to file his answer or other responsive pleading 20. Defendants have not denied the allegations in Plaintiffs' complaint. 21. Pursuant to Pa .R.C.P. 1029, the allegations in Plaintiffs' complaint are deemed admitted because they are not denied. 22. Any party may move for judgment on the pleadings after the relevant pleadings are closed, but within such time as not to unreasonably delay the trial. Pa. R.C.P. 1034. 23. The pleadings in this action are closed. 3 24. No trial date is set. Wherefore, plaintiffs request that the Court grant this motion and enter judgment or order pursuant to Rule 1034 (b). Supreme Court #46439 513 North Second Street Harrisburg, PA 17101 717-233-3220 Counsel for Plaintiffs Date: July 2, 2003 4 Exhibit 1 '~S510 2002-04017 Reference No..: Case TvDe ..... : WRIT OF SUMMONS Ju~gmeh% ....... 00 Judge Assigned: Disposed Desc.: ............ Case Comments ............. Cumberland County Prothonotary's Office Civil Case. Inquiry WILKINSON DWANE E ET AL (rs) WILKINSON DWANE ET AL Filed ........ : Time ......... : Execution Date Jury Trial .... Disposed Date. Higher Crt 1.: Higher Crt 2.: Page 1 8/23/2002 8:32 0/00/0000 0/00/0000 General Index PLAINTIFF PLAINTIFF DEFENDANT Attorney Info MALE THERESA BARRETT MALE THERESA BARRETT DEFENDANT WILKINSON DWAYNE E WILKINSON CONSTANCE S WILKINSON DWANE S 5-A OLD SOUTH COURT BLUFFTON SC 22910 WILKINSON HEATHER L 36 WEST COOVER STREET MECHANICSBURG PA 17055 * Date Entries ............... ****************************** ............. FIRST ENTRY .............. 8/23/2002 PRAECIPE FOR WRIT OF SUMMONS IN CIVIL 9/11/2002 SHERIFF'S FILE RETURNED FILED. Case TyDe WRIT OF SUMMONS Ret Type.: Certified Mail Litiganh. WILKINSON DWANE S Address.. 5-A OLD SOUTH COURT Ctv~St/Zp: BLUFFTON, SC 22910 Sh~/Dpty.: R. Thomas.Kl~ne Postage Prepaid.: 08/26/2002 0000:00 , , Costs .... : $32.42 Pd.B¥:. THERESA BARRETT ~M~.LE 99/1~2 Date Letter Recd: 08/29/2002 Recpt Card ~igne~: _~_~~__ 9/11/2002 SHERIFF'S FILE RETURNED FILED. Case Type WRIT OF ~UMMONS Ret Type. Not Founa L%~igant. WILKINSON HEATHER L Address..: 36 WEST COOVER STREET Cty/St/Zp: MECHANICSBURG, PA 17055 Costs .... : $29.80 Pd By: THERESA BARRETT MALE 09/11/2002 Addl Comments.: HOUSE IS VACANT. MAIL IS STILL DELIVERED TO ADD Addl Comments.: POST OFFICE HAS NO FORWARDING. 1o/2s/2oo2 11/01/2002 SHERIFF'S FILE RETURNED FILED. Case Ty e: WRIT OF SUMMONS Ret T e.: Regular Litigant.: WILKINSON HEATHER n A~7~EATHER CLAWSER Address..: KEYSTONE HEALTH 300 CORPORATE CENTER DRIVE Ct /St/Z : CAMP HILL, PA 17011 Hn~ To: ~EATHER CLAWSER WILKINSON Shf/D ry.: RICHARD SMITH Date/~ime: 10/31/2002 1035:00 , . . ........... 1/08/2003 PRAECIPE TO ENTER APPEARA/qCE AND RULE TO FILE COMPLAINT - BY MJLRK C DUFFIE ESQ 1/08/2003 RULE TO FILE COMPLAINT - BY CURTIS R LONG PROTHONOTARY 5/22/2003 COMPLAINT - BY THERESA BARRETT MALE ESQ FOR PLFF 6/11/2003 ACCEPTANCE OF SERVICE FOR COMPLAINT TO DEFT DWANE S WILKINSON BY CHARLES RECTOR ESQ 6/11/2003 ~&~-$F SERVICE FOR COMPLAINT TO DEFT HEATHER L CLAWSER - BY MARK C DUFFIE ESQ .............. LAST ENTRY .............. P~'SSIO 2002-04017 Reference No..: Case Type ..... : Ju~gmeh% ...... Judge Assigned: Disposed Desc.: WRIT OF SUMMONS .00 Cumberland County Prothonotary's Office Civil Case,Inquiry WILKINSON DWANE E ET AL (rs) WILKINSON DWANE ET AL Filed ........ : Time ......... : Execution Date Jury Trial .... Disposed Date. Case Comments ............. Higher Crt 1.: ............ HigHer Crt 2.: . Escrow Information * Fees & Debits Beg Bal Pymts/Adj End Bal .~.~**~**~********************~*~**~***~******~*w*****~***~****~******* WRIT OF SUMMONS 35.00 35.00 .00 TAxX ON WRIT .50 .50 .00 SETTLEMENT 5.00 5.00 .00 AUTOMATION FEE 5.00 5.00 .00 JCP FEE 5.00 5.00 .00 Page 2 8/23/~oo2 8:32 o/oo/oooo o/oo/oooo End of Case Information RUE COPY" the s~t of ~id Cou~ ~ :~is ~day ot~ Exhibit 2 Theresa Barrett Male Supreme Court # 46~B9 513 North Second SU:eet Harrisburg, PA 17101 (717) 233-3220 Counsel for Plaintiffs COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DWANE E. WILKINSON and CONSTANCE S. WILKINSON Plaintiffs V. DWANE S. WILKINSON and HEATHER L. CLAWSER (formerly Wilkinson) Defendants No. 024017 Civil Term : C~ ACTION NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County BarAssociation 2 Liberty Avenue Carlisle, PA17013 (717) 249-3166 Theresa Barrett Male Supreme Court # 46439 513 North Second Street Harrisburg, PA 17101 (717) 233-3220 Counsel for Plaintiffs COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DWANE E. WILKINSON and CONSTANCE S. WILKINSON Plaintiffs v. No. 024017 Civil Term DWANE S. WILKINSON and HEATHER L. CLAWSER (formerly Wilkimon) Defendants CML AC. TION COMPLAINT 1. Plaintiffs Dwane E. Willdnson and Constance S. Wilkinson reside at 431 South High Street, Mechanicsburg, Cumberland County, Pennsylvatria 17055. 2. Defendant Dwane S. Wilkinson resides at 5-A Old South Court, Bluffton, South Carolina 29910. 3. Defendant Heather L. Clawser, formerly Heather L. Wilkinson, resides at 1341 Old Willow Mill Road, Mechanicsburg, Cumberland County, Permsylvania 17055. 4. Defendants Wilkin.~on and Clawser formerly were husband and wife, respectively. 5. In or about 1997, Defendants entered into a contract to purchase improved real estate located at 36 Coover Street, Mechanicsburg, Cumberland County, Pennsylvania ("Coover Street property"). 6. Defendants lacked sufficient funds for the dowrt payment and the closing costs, or a portion thereof, to purchase the Coover Street property. closing costs. 8. Defendants approached plaintiffs for funds to cover the down payment and the Defendants represented and warranted to plaintiffs that defendants would repay plaintiffs in full when defendants sold the Coover Street property. 9. In reliance on defendants' promise to repay plaintiffs in full when defendants sold the Coover Street property, plaintiffs agreed to advance certain sums to defendants in connection with defendants' purchase of the Coover Street property. 10. On April 17, 1997, plaintiffs withdrew from thei~ Americhoice Federal Credit Union account and transferred to defendants the sum of $5,000.00. 11. On May 14, 1997, plaintiffs transferred the sum of $17,833.19 from their Americhoice Federal Credit Union account directly into the Aanerichoice Federal Credit Union account of Heather Wilkinson, now Clawser. 12. Following the transfers set forth in paragraphs 10 and 11, defendants purchased the Coover Street property. 13. Subsequent to defendants' settlement on their' purchase of the Coover Street property, defendants promised to repay plaintiffs the sum of $22,833.19 ("the loan"). 14. Defendants promised to repay the loan when they had settlement on their sale of the Coover Street property. 15. 16. 17. 18. The loan was not secured by the Coover Street property or otherwise. Defendants accepted the terms of the loan. Defendants Wilkinson and Clawser were divorced in November 2001. On June 10, 2002, plaintiffs made demand on defendants to repay the loan. 2 19. Plaintiffs initiated this action by writ of summons filed August 23, 2002. 20. On January 8, 2003, counsel for defendant Clawser entered their appearance and caused the Prothonotary to issue a rule to file a complaint. 21. On April 2, 2003, the parties entered into an escrow agreement. 22. Pursuant to the terms of the escrow agreement, counsel for defendant Clawser deposited into counsel's escrow account the sum of $22,833.19, the amount of the loan. 23. Pursuant to the terms of the escrow agreement, counsel for defendant Clawser is holding in counsel's escrow account the sum of $22,833.19 pending resolution of the instant action. 24. By agreement, the parties extended the filing date for plaintiffs' complaint to on or before May 22, 2003. Count I - Breach of Express Oral Agreement 25. Plaintiffs incorporate by reference the averments set forth in paragraphs 1 through 24. 26. Defendants entered into an express oral agreement with plaintiffs as set forth in paragraphs 1 through 24. 27. Defendants breached the express oral agreement by failing to tender payment to plaintiffs at settlement on defendants' sale of the Coover Street property. 28. Plaintiffs are entitled to prejudgment interest at the legal rate. Wherefore, plaintiffs demand judgment against defen&mts in the amount of $22,833.19 and prejudgment interest, plus costs, counsel fees and expenses, and additional interest accruing during the pendency of this action. 29. Count II - Unjust Enrichment: Plaintiffs incorporate by reference the averments set forth in paragraphs 1 through 30. Plaintiffs conferred a benefit on defendants by loaning defendants monies. 31. Defendants appreciated the benefits provided by plaintiffs. 32. Defendants accepted and retained the benefits provided by plaintiffs. 33. It would be inequitable for defendants to retain 'the benefits provided by plaintiffs without the payment of value 34. Plaintiffs are entitled to interest at the judgment rate of 6% per annum. Wherefore, plaintiffs demand judgment against defend~mts in the amount of $22,833.19 and prejudgment interest, pins costs, counsel fees and expenses, and additional interest accruing during the pendency of this action. Count IH - Constructive Trm;t 35. Plaintiffs incorporate by reference the avermants set forth in paragraphs 1 through 24. 36. Defendants preceding paragraphs. benefited from the transaction with plaintiffs described in the 37. they held a beneficial interest in the property as trustees for plaintiffs. 38. Defendants had an equitable duty to convey to plaintiffs $22,833.19 defendants' sale of the Coover Street property. Defendants acquired the 36 Coover Street property under such circumstances that from 4 39. Defendants will be unjustly enriched if they are permitted to retain the $22,833.19 from defendants' sale of the Coover Street property which defendant Clawser's counsel are holding in counsel's escrow account. Wherefore, plaintiffs request that the $22,833.19 proceeds from the sale of the real estate located at 36 Coover Street, Mechanicsburg, Cumberland Comaty, Pennsylvania be held in trust for plaintiffs, and that the court thereafter direct counsel for defendant Clawser to release to plaintiffs the entire sum being held in counsel's escrow account. Theresa Barrett Male, Esquire Supreme Court #46439 513 North Second Street Harrisburg, PA 17101 717-233-3220 Counsel for Plaintiffs Date: May 22, 2003 VERIFICATION We. Dwane £, Wilkinson and Conslanc~ $. Wilkinson, s~ale upon p~rsonal knowledge or information and belief fl~at the avelmeats s~t forth in the forgoing document are true. We u~derstang that false s~tements her~in are ~ subjtct ~o the pemdti~s of 18 Pa. C.S. § 4904, relating to umworn falsitication to authorities. l)wa~ E. Wllkin~n ' . //, /,, / Dau:: lViay ~, 2003 Exhibit 3 Theresa Barrett Male Supreme Court # 46439 513 North Second Slreet Harrisburg, PA 17101 (717) 233-3220 Counsel for Plaintiffs ,~ 0 COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DWANE E. WILKINSON and CONSTANCE S. WILKINSON Plaintiffs DWANE S. WILKINSON and HEATHER L. CLAWSER (formerly Wilkinson) Defendants No. 02-40117 Civil Term CIVIL ACTION - LAW ACCEPTANCE OF SERVICE I accept service of the Complaint. I certify that I am authorized to accept service on behalf of Defendant Heather L. Clawser. Date: May ~7a~- ,2003 Mar~C. 1~~ Exhibit 4 Theresa Barrett Male Supreme Court # 4~43~ 213 North Second Harrisburg, PA 17101 (717) 233-3220 Counsel fo~ Plaimifl~ COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DWANE E. WII.KINSON and CONSTANCE S. WILKINSON Plaintiffs DWANE S. WILKINSON and HEATHER L. CLAWSER (formerly W!lMmon) Defendants No. 02401.7 Civil Term CIVIL AC'lION - LAW ACCEPTANCE OF SERVICE I accept service of the Complaint. I certify that I am authorized to accept behalf of Defendant Dwane S. Wilkinson. Ci~s Re?r~ Esquire Date: May ':~ ., 2003 PROOF OF SERVICE I hereby certify that I am this day serving the foregoing documem upon the persons and in the manner indicated below which service satisfies the requiremems of Pa. R.C.P. 440: Service by first-class mail addressed as follows: Charles Rector, Esquire 1104 Fernwood Avenue, Suite 203 Camp Hill, PA 17011-6912 Attorney for Defendant Wilkinson Mark C. Duffle, Esquire Duffle Johnson Stewart & Weidner 301 Market Street, P.O. Box 109 Lemoyne, PA 17043 Attorneys for Defendant Clawser Theresa Barrett Male, Esquire Supreme Court # 46439 513 North Second Street Harrisburg;, Pennsylvania 17101 (717) 233-3220 Counsel for Plaintiffs Date: July 3, 2003 PRACEIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTRARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argumem Court. CAPTION OF CASE (entire caption must be stated in full) DWANE E. WILKINSON and CONSTANCE S. WILKINSON Plaimiffs DWANE S. WILKINSON and HEATHER L. CLAWSER (formerly Wilkinson) Defendants No. 024017 Civil Term CIVIL ACTION State matter to be argued (i.e., plaintiWs motion for new trial, defendant's demurrer to complaint, etc.): Plaintiffs' Motion for Judgment on the Pleadings Identify counsel who will argue case: a. for plaintiff: Theresa Barrett Male, Esquire Address: 513 North Second Street, Harrisburg, PA 17101 b. for defendant Wilkinson: Charles Rector, Esquire Address: 1104 Fernwood Avenue, Suite 203, Camp Hill, PA 17011-6912 c. for defendant Clawser: Mark C. Duffle, Esquire Address: 301 Market Street, P.O. Box 109, Lemoyne, PA 17043 I will notify all parties in writing within two days that this case had been listed for argument. 4. Argument Court Date: Date: July 7, 2003 August 27, 2003. C~ O C: f..,0 J~hnsen,, Duffle, Stewart & Weidner B~: Mark C. Duffle I.D. No. 75906 301 Market Street P. O. Box 109 Lemoync, Pcmnsylvania 17043 -0109 (717) 761-4540 Attorneys for Defendant Heather L. Clawser DWANE E. WILKINSON and CONSTANCE S. WILKINSON, Plaintiffs DWANE S. WILKINSON and HEATHER L. CLAWSER (formerly Wilkinson), Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-4017 Civil Term CIVIL ACTION - LAW NOTICE TO PLEAD TO: Dwane E. Wilkinson and Constance S. Wilkinson c/o Theresa Barrett Male, Esquire 513 N. Second Street Harrisburg, PA 17101 AND NOW, this ~4~, day of July 2003, you are hereby notified to plead responsively within twenty (20) days of the date of service hereof, or judgment may be entered against you. :215165 JOHNSON,By:'~ ,~~ ~g~/"~DUFFIE' STONER 3Affrk C. Duffle /r / orney I.D. No. 7590B 1 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 (717) 761-4540 Attorneys for Defendant Heather Clawser J0hnsoh, Duffle, Stewart & Weidner By: Mark C. Duffle I.D. No. 75906 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 Attorneys for Defendant Heather L. Clawser DWANE E. WILKINSON and CONSTANCE S. WILKINSON, Plaintiffs DWANE S. WILKINSON and HEATHER L. CLAWSER (formerly Wilkinson), Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-4017 Civil Term CIVIL ACTION - LAW ANSWER OF DEFENDANT HEATHER L. CLAWSER TO PLAINTIFFS' COMPLAINT AND NEW MA TTER AND NOW, this ~r~day of June 2003, comes Defendant Heather L. Clawser (formerly Wilkinson), by and through her undersigned attorneys, Johnson, Duffle, Stewart & Weidner, and files this Answer to Plaintiffs' Complaint as follows: 1. Admitted. 2. Denied. Defendant Dwane S. Wilkinson's address is 100 Kensington Boulevard, No. 904, Bluffton, South Carolina 29910. 17050. Admitted. By way of clarification, the zip code for the Defendant, Heather L. Wilkinson is 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Denied. The funds were given by the Plaintiffs to the Defendants as a gift without any expectation of repayment. By way of further response, the Property Settlement and Separation Agreement signed by Defendant Wilkinson and Defendant Clawser dated January 4, 2000, and the Amendment thereto, dated June 2, 2000, provided that the proceeds from the sale of the house would be divided between Defendant Wilkinson and Defendant Clawser with no mention of any monies to be disbursed or distributed to Plaintiffs. It is believed and therefore averred that the Plaintiffs were aware of the terms of this agreement and, at that time, affirmed by virtue of the Agreement and Addendum thereto the nature of these monies as a gift. 9. Denied. The sums of money at issue given by Plaintiffs to Defendants were given as a gift without any reliance upon any expectation of repayment. 10. Denied. The Defendant, Heather L. Clawser, is without sufficient information to either admit or deny the averments set forth in Paragraph 10 and therefore the same is denied and strict proof thereof is demanded at trial. 11. Admitted. The Defendant, Heather L. Clawser, is without sufficient information to either admit or deny the averments set forth in Paragraph 11 and therefore the same is denied and strict proof thereof is demanded at trial. 12. Admitted. 13. Denied. At no time did Defendant Clawser promise to repay any monies to the Plaintiffs. To the best of Defendant Heather L. Clawser's knowledge, Defendant Dwane S. Wilkinson never made any promise either directly or implicitly to repay Plaintiffs the sum of "the loan". 14. Denied. At no time did Defendant Clawser promise to repay any monies to the Plaintiffs, as the monies were a gift and Plaintiffs had no expectation of repayment. To the best of Defendant Heather L. Clawser's knowledge, Defendant Dwane S. Wilkinson never made any such premise to repay "the loan" when the had settlement on their sale of the Coover Street property. 15. Denied. The monies were not given as a loan and therefore would not be secured by any real property, or otherwise. 16. Denied. The Defendants did not accept any terms of a loan, because there were no terms of a "loan." The funds were given to the Defendants as a gift with no expectation of repayment. 17. Admitted. 18. Denied. Defendant, Heather L. Clawson, had no knowledge of any demand for repayment or any discussion of repayment of a "loan" until she was served with a Writ of Summons in November of 2002 at her place of employment. 19. Admitted. 20. Admitted. 21. Admitted. 22. Admitted in part. Denied in part. It is admitted that, pursuant to the terms of the escrow agreement, counsel for Defendant Clawser deposited into counsel's escrow account the sum of $22,833.19. It is denied in that the Plaintiffs characterize these funds as "the amount of the loan." All parties hereto agreed to escrow the monies and enter into the escrow agreement to clear the title so that the Coover Street property could be sold and Defendant Clawser could be relieved of making any further mortgage payments. 23. Admitted. 24. Admitted. COUNT I Breach of Express Oral Agreement 25. Paragraph 25 is a paragraph of incorporation, to which no responsive pleading is required other than incorporation of the responses set forth herein to paragraphs 1-24. 26. Denied. The Defendants and the Plaintiffs did not enter into an express or implied oral agreement with respect to repayment of these funds, as these funds were a gift. 27. Denied. The Defendants did not breach any express oral agreement, as there was none with respect to repayment. 28. Denied. The averments set forth in paragraph 28 are a legal conclusion to which no responsive pleading is required. WHEREFORE, Defendant Clawser requests this Honorable Court enter judgment in favor of herself and against Plaintiffs with respect to Count I of the Complaint. COUNT II Unjust Enrichment 29. Paragraph 29 is a paragraph of incorporation, to which no responsive pleading is required other than incorporation of the responses set forth herein to paragraphs 1-28. 30. Denied. The Plaintiffs conferred a benefit upon Defendants by gift. 31. Denied. The Defendants appreciated the gift conferred upon them by Plaintiffs. 32. Denied. was the padies' intent. The Defendants accepted and retained the gift provided by Plaintiffs, as that 33. Denied. It would not be inequitable for Defendants to retain the gift provided to them by Plaintiffs without the payment of value, as the monies were conferred as a gift and therefore there was no expectation of repayment and no inequity resulted. 34. Denied. The averments set forth in paragraph 34 are a legal conclusion to which no responsive pleading is required, and therefore the same is denied. WHEREFORE, Defendant Clawser requests this Honorable Court enter judgment in favor of herself and against Plaintiffs with respect to Count II of the Complaint. COUNT III Constructive Trust 35. Paragraph 35 is a paragraph of incorporation, to which no responsive pleading is required other than incorporation of the responses set forth herein to paragraphs 1-34. 36. Denied. The Defendants benefited from a gift from the Plaintiffs. 37. Denied. The Defendants did not hold a beneficial interest in the property as trustees for Plaintiffs, as they received a gift from the Plaintiffs. In the alternative, the averments set forth in paragraph 37 are a legal conclusion to which no responsive pleading is required and therefore the same is denied. 38. Denied. The Defendants have no equitable duty to pay to Plaintiffs the amount of $22,833.19 from the sale of the Coover Street property, as those monies were a gift and there was no expectation of repayment, and the parties all shared a donative intent. 39. Denied. The Defendants will not be unjustly enriched if they retain the $22,833.19 from the sale of the Coover Street property, which is currently being held in escrow by Defendant Clawser's counsel, since the monies were a gift and there can therefore be no unjust enrichment. WHEREFORE, Defendant Clawser requests this Honorable Court enter judgment in favor of herself and against Plaintiffs with respect to Count III of the Complaint. NEW MATTER AND NOW, comes Defendant Heather L. Clawser, by and through her undersigned attorneys, Johnson, Duffle, Stewart & Weidner, and files the following New Matter of which the following is a statement: 40. Defendant incorporates paragraphs I through 39 of the above Answer as though set forth herein in their entirety. 41. Plaintiffs' claim of an express agreement or express contract would fail under the Statute of Frauds. 42. The Plaintiff, Dwane E. Wilkinson, on or about April 24, 1997, signed a verification of gift in the amount of $20,000.00. Furthermore, on or about May 13, 1997, Plaintiff Dwane E. Wilkinson signed a verification of gift in the amount of $3,500.00. A true and correct copy of those respective verifications of gift are attached hereto and incorporated herein as Exhibit "A." 43. Defendant Clawser and Defendant Wilkinson entered into a Property Settlement and Separation Agreement dated January 4, 2000, which set forth, interalia, in paragraph 3, the following: (3) The parties are the owners of certain real estate with improvements thereon erected, known as 36 W. Coover Street, Mechanicsburg, Cumberland County, Pennsylvania. The parties agree that WIFE shall enjoy exclusive possession of the premises until the youngest of the parties' children graduates from high school or until WIFE remarries or cohabitates with a member of the opposite sex, whichever shall come first. HUSBAND and WIFE shall share the responsibility for the mortgage payment to Huntington Mortgage Company, or its successors or assigns, with WIFE paying forty percent (40%) of the mortgage and HUSBAND paying sixty percent (60%). WIFE shall pay the mortgage company directly the amount of the mortgage, and HUSBAND shall pay to WIFE sixty percent (60%) of the liability on a monthly basis. Upon the happening of one of the contingencies as listed above, WIFE shall have the option to purchase HUSBAND's sixty percent (60%) of the value of the marital home, or HUSBAND shall purchase WIFE's forty percent (40%). The parties may also agree that the property may be sold, and the proceeds shall be shared forty percent (40%) to HUSBAND and sixty percent (60%) to WIFE. A true and correct copy of the Property Settlement and Separation Agreement is attached hereto and incorporated herein as Exhibit "B." 44. Defendant Clawser and Defendant Wilkinson entered into an Amendment to the Property Settlement and Separation Agreement, dated June 2, 2000, wherein the parties agreed to specifically amend paragraph 3 as follows: The parties are the owners of certain real estate with improvements thereon erected known as 36 W. Coover Street, Mechanicsburg, Cumberland County, Pennsylvania. The parties agree that Heather L. Wilkinson [now Clawser] shall enjoy exclusive possession of said property until the youngest of the parties' children graduates from high school or until Heather remarries, whichever comes first. Dwane and Heather shall share the responsibility for the mortgage payment to Huntington Mortgage Company, or its successors or assigns, with Heather paying seventy percent (70%) of the mortgage payment and Dwane applying thirty percent (30%). Heather shall pay the mortgage company directly the entire amount of the mortgage, and Dwane shall pay to Heather thirty percent (30%) of the liability on a monthly basis. Upon the happening of one of the contingencies listed above, Heather shall have the option to purchase Dwane's thirty percent (30%) of the value of the marital home, or Dwane shall purchase Heather's seventy percent (70%). The parties may also agree that the property may be sold, and the proceeds shall be shared thirty percent (30%) to Dwane and seventy percent (70%) to Heather. A true and correct copy of the Amendment to the Property Settlement and Separation Agreement is attached hereto and incorporated herein as Exhibit "C". 45. It is believed and therefore averred that Plaintiff Dwane E. Wilkinson was aware of the substance of the Property Settlement and Separation Agreement, as well as the Amendment thereto, and in fact witnessed the execution of the Amendment. 46. The parties, in resolving the property issues through the divorce action, confirmed by the Property Settlement and Separation Agreement and the Amendment thereto that the monies in question were in fact a gift, by failing to carve out any distribution to Plaintiffs in the event of the sale of the property. 47. It is believed and therefore averred that the Plaintiffs are attempting to characterize what was clearly a gift as a loan in light of litigation following what was otherwise a relatively amicable divorce between the parties. 48. The parties intended that the monies be a gift, and had no expectation of repayment upon the sale of the Coover Street property. WHEREFORE, Defendant Heather L. Clawser respectfully requests this Honorable Court to enter judgment in favor of herself and against Plaintiffs and grant Defendant Clawser her costs, attorney's fees and any other award the Court deems just and equitable. :215165 Respectfully submitted, JOHNSON, DUFFLE, STEWA~//EIDNER Mar~'C. Duffle 7J9~6 At~'orney I.D. No. 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 (717) 761-4540 Attorneys for Defendant Heather L. Clawser VERIFICATION I, Heather L. Clawser, verify that the statements made in this ANSWER and NEW MATTER are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are made subject to the penalties of 18 Pa.C.S.A. §4904, relating to unsworn falsification to authorities. Date: Heater ~Heather L. WilkinsOn CERTIFICATE OF SERVICE AND NOW, this 1'~'- day of July 2003, the undersigned does hereby certify that a copy of the foregoing document was served upon the other parties of record in the following manner: By First Class U.S. Mail to: Theresa Barrett Male, Esquire 513 N. Second Street Harrisburg, PA 17101 Charles Rector, Esquire 1104 Fernwood Avenue, Suite 203 Camp Hill, PA 17011-6912 JOHNSON, DUFFLE, STEW,~~NER .~a.. rk C. Duffle ~' Attorney I.D, No~'5906 SAIDIS, ;HUFF & MASLAND 16 W. Hi§h Street PROPERTY SETTLEMENT AND SEP~RATION AGREEMENT THIS AGREEMENT made this ~ 2000 between Heather L. Wilkinson, County, Pennsylvania, hereinafter referred to as Wife, A N D dayof' ~0~ of Mechanicsburg, Cunlberland Dwane S. Wilkinson, of Mechanicsburg, Cumberland County, Pennsylvania, hereinafter referred to as Husband. WITNESSETH: WHEREAS, in c~sequence of. disputes and unhappy differences, the parties have been living separate and apart from each other; and WHEREAS, =he parties desire to confirm their separation and make arrangements therewith, children, Chelsea Wilkinson including custody of their minor (DOB 6/10/91) and Joshua Wilkinson (DOB 8/15/93, the division of their marital property and other rights and obligations growing out of their marriage. NOW THEREFORE, in consideration of the covenants and promises hereinafter to be mutually kept and perforraed by each party, as well as for other good and valuable consideration and intending to be legally bound it is agreed as follows: SAIDIS, SHUFF & MASLAND 26 W, High Strut (1) It shall be lawful for each party at all times hereafter go live separate and apart from the other party at such place or places as he or she from time to time may choose or deem fit. (2) Except as herein otherwise provided, releases the other from any and all claims, date of execution hereof. (3) The parties are the owners of certain each party hereby or demands up to the real estate with improvements thereon erected known as 36 West Coover Street, Mechanicsburg, Cunzberland County, Pennsylvania. The parties agree that Wife shall enjoy exclusive possession of said premises until the youngest of the parties' children graduates from high school or until Wife remarries or cohabitates with a membe: of the opposite sex, whichever shall come first. Musband and Wife shall share the responsibility for the mortgage payment to Huntington Mortgage Company, or its successors or assigns, with Wife paying 40% of the mortgage payment and husband paying 60%. Wife shall pay the mortgage company directly the entire amount of the mortgage, and Husband shall pay to Wife 60% of the liability on a monthly basis. Upon the happening of one of the contingencies as listed above, Wife shall have the option to purchase Husband's 60% of SAIDIS, ;HUFF ,it MASLAND 26 W. High Street Carlisle, PA the value of the marital home, 40%. The parties may also agree and the proceeds shall be shared or Eusband shall purchase Wife's that the property may be sold, 60% to Husband and 40% to Wife. While Wife is residing in said premises, full responsible for the utilities and other in connection with residing in the property. she shall assume household expenses With regard Co these expenses, Wife agrees to hold Husband harnLless and indemnify him from any loss thereon. (4) In the event that either party contracted or incurred any debts since the date of separation on July 2, 1999, the party who incurred said debt shall be responsible for the payment thereof, regardless of t~e name in which the account may have been charged. Husband and Wife acknowledge and agree that they have no other outstanding joint debts and obligations of'the Husband and wife incurred prior to the .signing of this Agreement, follows: except as Wife agrees to assume the following debts: The Sears card in her Husband's name and Husband's name; name, the Sears card in her The Home Depot charge in 3 SAIDIS, ~HUFF ~ MASLAND 26 W. HI~t~ Street B. Husband will assume the Visa account in his name and will assume responsibility for the Suburban Cable bill which has become delinquent. With regard to these bills, the parties respectively agree to hold the other harmless and indemnify them from any loss thereo~. Each party agrees to pay the outstanding joint debts as set forth herein and further agrees to indemnify and save harmless the other from any and all claims and demands made against either of them by reason of such debts or obligations. (5) Each party relinquishes any right, title and interest he or she may have to any and al~'motor vehicles currently in possession of the other party. Rach party shall execute any documents necessary to have said vehicles properly registered in the other party's name with the Pennsylvania Department of Transportation. Each party shall assume full responsibility of any encumbrance on the motor vehicle received by said p~rty, and shall hold harmless and indemnify the other party from any loss thereon. (6) The parties hereto mutually agree that they have effected a satisfactory division of the furniture, household furnishings, appliances, tools and other household personal SAIDiS, 3HUFF & MASLAND property between them, and they mutually agree that each party shall from and after the date hereof be the sole and separate owner of all such property presently in his or her possession whether said property was heretofore owned jointly or individually by the parties hereto. This agreement shall have the effect of an assignment or bill of sale from each party to the other for such property as may be in the individual possession of each of the parties hereto. Attached hereto and made a part hereof is a list of property to go to Husband or Wife according to the schedule. (7) Each party hereby relinquishes any right, title er interest he or she ~aay have in ~r to any intangible personal property currently titled in the name of or in the possession of the other party, includingr but not limited to, stocks, bonds, insurance, bank accounts and retirement accounts.' (8) The parties agree that legal custody of their miner children, Chelsea Wilkinson and Joshua Wilkinson, shall be joint, with both parties having the right to make major parenting decisions affecting the children's health, education and welfare. Wife shall have primary physical custody of the children subject to Husband's partial physical custody at times to be 5 SAID~$, HUFF & MASLAND 2~ W. High $~eet Carlisle, PA agreed upon by the parties. The parties agree that they shall not take the children out of state without prior notification and approval of the other party. (9) Husband agrees to pay to Wife for the use, benefit, support and maintenance of their minor children, the sum of Five Hundred ($500.00) Dollars per month for the support of said children. The parties further agree that they shall share equally any non-covered or extraordinary medical or dental expenses for the minor ckildren. The parties agree that in the event of a material change in circumstances of either party, or a change in the custody arrangements set forth herein, the amount of suppor~ payments shall be subject to an appropriate adjustment by agreement or, if the parties are unable to agree, by order of a court of competent jurisdiction, and the amount ordered by'any such court shall be deemed to be the amount due hereunder. (10) Except as otherwise provided herein, Husband shall not pay to Wife nor Wife to husband any sttm whatsoever as alimony, alimony pendente lite, or for his or her support or maintenance. (11) Each party is now represented by counsel of his and her own choice, and each shall pay his or her own attorney for 6 SAIDI$, ;HUFF & MASLAND all legal services rendered or to be rendered on his or her behalf. (121 Neither party shall contract or incur any debt or liability for which the other party or his or her property or estate might be responsible and shall indemnify and save the other party harmless from any and all claims or demands made against him or her by reason of debts or obligations incurred by the other party. (13) Each of the parties shall from time to-time, at the request of the other, execute, acknowledge and deliver to the other party any and all further instruments that may be reasonably required'to give full'force and effect to the provision of this Agreement. (14) The parties agree to join in the filing of a 1999 joint federal, Pennsylvania and local income tax return. In the event that there is a refund, the parties agree that they will use any refund to pay the unpaid debts as (4) herein. In the event that a joint return is described in ~aragraph filed, the Wife's contribution for payment shall be a sum equal to the amount of tax liability that she would have had to pay on her separate return for that year had she filed a separate return. Husband SAIDIS, ;HUFF & MASLAND 26 w. Blgh Street will pay the balance of the tax due on the return. Husband will bear the expense of preparing all joint tax returns and of computing the estimated tax liability of Wife on the basis of her having filed a separate return. (15) The parties agree to share equally in any post secondary education expenses of the children, including, but not limited to, tuition, room and board, books and expenses. (16) The parties do hereby warrant, represent, acknowledge and agree that each is fully and completely informed of, and is familiar with, the wealth, real and personal property, estate and assets, earnings and income of the other and that each has made a full and complete dlsclos~re to the other of his and her entire assets and liabilities and any further enumeration or statement thereof in this Agreement is specifically waived. (17) Husband and Wife acknowledge that each 0f them has read and understand his and her rights and responsibilities under this Agreement and that they have executed this Agreement under no compulsion to do so but as a voluntary act. (18) It is further specifically understood and agreed by and between the parties hereto that each party accepts ~he provisions herein made in lieu of and in full settlement and satisfaction of any and ali of said party's rights against the 8 SAIDIS, ;HUFF MASLAND 2fi W. High Sttx~t Carlisle, PA other for past, maintenance, and expenses, present and future claims on account of support, alimony, alimony pendente lite,' counsel fees, costs equitable distribution of marital property and any other claims of each party, including all claims which have been raised or may be raised in an action for divorce. (19) Except as may be otherwise specifically provided in this Agreement, Husband and Wife, for themselves, their heirs, representatives and assigns, each hereby forever releases, remises, discharges and quitclaims the other, and such other's heirs, representatives, assigns and estate, from and with respect to the following: A. Ail liability, clhims, causes costs, contributions, in equity; of action, damages, expenses or demands whatsoever in law or any property of the other, whether real, personal whether now owned or hereafter acquired; C. All rights of curtesy and dower and rights in the nature of curtesy and dower; D. Ail widow or widower's rights; Ail rights, title, interest or cl&ims in or to or mixed and all claims or 9 SAIDIS, 3HUFF & MASLAND 26 W, High Street the other's estate, whether now owned or hereafter acquired, including but not limited to all rights or claims: Ail rights, title and interest or claims in or to (1) to take against the other's will; (2) under the laws of intestacy; (3) to a family exemption or similar allowance; and (4) all other rights or authority to participate or intervene in a deceased spouse's estate in any way, whether arising under the laws of Pennsylvania or any other country, territory, state or political subdivision. F. All-rights or claims to any accounting; G. Ail rights, claims, demands, liabilities and obligations arising out of or in connection with the marital relationship or the joint ownership of property, personal or mixed; H. All rights, claims, demands, liabilities and obligations arising under the provisions of the Pennsylvania ~hether real, Act 26 of 1980, as the same may be amended from and under the provisions of a~y similar statute state, territory or political Divorce Code, time to time, enacted by any other country, subdivision; 10 SAIDIS, ~HUFF & MASLAND 26 W. H{~h ~ Carlisle, obligations each party or with respect to the All rights, claims, demands, liabilities and now has, or may hereafter have, against other. (20) This Agreement shall be construed under the law of the Commonwealth of Pennsylvania. If any provision of this Agreement is determined to be invalid or unenforceable, all other provisions shall continue in full force and effect. (21) In the event that'either of the parties shall recover a final judgment or decree of absolute divorce against the other in a court of competent jurisdiction, the provisions of this Agreement may'be incorporated by reference or in substance but shall not be merged into such jUdgment or decree and this Agreement shall survive any such final judgment or decree of absolute divorce and shall be entirely independent (22) In the event that either party breaches of this Agreement, and the other party retains in enforcing the terms thereof, the parties the breaching party will pay all attorney's and expenses incurred by the other party Agreement. (23) betwesn the parties and there are no covenants, thereof. any provision counsel to assist hereby agree that fees, court costs in enforcing the This Agreement constitutes the entire understanding conditions, SAIDIS, ; I-~ UFF & MASLAND 26 W, High $~re~t Carlisle, PA Witness Witness representations, or agreements, oral or written, of'any nature whatsoever, other than those herein contained. (24) This Agreement shall bind the parties hereto, their respective heirs, executors and assigns. IN WITNESS WHEREOF, the parties hereto intending to be legally bound have hereunto set their hands and seals the day and year first written above. Dwane S. Wilk-i~or~ 12 · . .~ This document, made this ~ day of June, 2000 between Heather L. Wilkinson and Dwaue S. Wilkln~on, will serve as an amendment to thc "Property Settlement and Separation Agreement", section (3), signed by Dwene S, Willfinson and Heather L. Wilkinson, on January 4, 2000. The parties are the owners of certain real estate with improvements thereon erected known as 36 West Coover Street, Mechanicsburg, Cumberland County, Pennsylvania. The parties agree that Heather L. Wilkinson shall enjoy exclusive possession of said property until the youngest of the parties' children graduates from high school or until Heather remarries whichever shall come first. Dwane and Heather shall share the responsibility for the mortgage payment to Huntington Mortgage Company, or its successors or assigns, with Heather paying 70% of the mortgage payment and Dwane applying 30%. Heather shall pay the mortgage company directly the entire amount of thc mortgage, and Dwane shall pay to Heather 30% of the liability on a monthly basis. Upon the happening of one of the contingencies as listed above, Heather shall have the option to purchase Dwane's 30% of the value of the marital home, or Dwane shall purchase Heather's 70%.' The parties may also agree that the property may be sold, and the proceeds shall be'shared 30% to Dwane and 70% to Heather. While wife is residing in suid premises, she shall assume full responsibility for thc utilities and other household expenses in connection with residing in the property. With regard to these expenses, Heather agrees to hold Dwane harmless and indemnify him from any loss thereon. This agreement shall bind the parties hereto, their respective heirs, executors, and assigns, In witness whereof, the parties hereto intending to be legally bound have hereunto set their hands and seals the day and year first written above. Witness ' ~efither L. ~ilkinson Witness Dwanc S. Wilkln~on Ri~UEST FOR VERIFIC,t~ION OF GIFT I INSTI~UCTIONS: Lender - Complete Items I ttx~u~ 6 and mall to Doner listed in item I 05~13,'B7 REQUEST FOR VERIFICATION OF GIFT INSTRUCTIONB: Lnnd~r ,. Oampl~e Itnn~ 1 ~ugh 6 and tn~ to DonOr ~ in Itnm 1 · I ~, ' ..... ., . ' '"' ' - PRACEIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTRARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) DWANE E. WILKINSON and CONSTANCE S. WILKINSON Plaintiffs DWANE S. WILKINSON and HEATHER L. CLAWSER (formerly Wilkinson) Defendants No. 02-40:17 Civil Term CIVIL ACTION State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Plaintiffs' Preliminary Objections to Answer and New Matter of Defendant Clawser. 2. Identify counsel who will argue case: for plaintiff: Theresa Barrett Male, Esquire Address: 513 North Second Street, Harrisburg, PA 17101 for defendant Wilkinson: Charles Rector, Esquire Address: 1104 Fernwood Avenue, Suite 203, Camp Hill, PA 17011-6912 for defendant Clawser: Mark C. Duffle, Esquire Address: 301 Market Street, P.O. Box 109,. Lemoyne, PA 17043 I will notify all parties in writing within two days that this case had been listed for argument. 4. Argument Court Date: August 27, 2003. PLEASE CONSOLIDATE THIS WITH ARGUMENT ON PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS. Attorney for Plaintiffs Date: July 28, 2003 Theresa Barrett Male Supreme Court # 46439 513 North Second Street Harrisburg, PA 17101 (717) 233-3220 Counsel for Plaintiffs COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DWANE E. WILKINSON and CONSTANCE S. WILKINSON Plaintiffs DWANE S. WILKINSON and HEATHER L. CLAWSER (formerly Wilkinson) Defendants No. 02-401.7 Civil Term CIVIL ACTION NOTICE TO PLEAD To: Defendant Heather L. Clawser You are hereby notified to file a written response to the enclosed preliminary objections within twenty (20) days from service hereor or a judgment may be entered against you. Theresa Barrett Male, Esquire Supreme Court #46439 513 North Second Street Harrisburg, PA 17101 717-233-3;!20 Counsel for Plaintiffs Date: July 28, 2003 Theresa Barrett Male Supreme Court # 46439 513 North Second Street HarrisburS, PA :L710~L (717) 233-3220 Counsel for Plaintiffs COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DWANE E. WILKINSON and CONSTANCE S. WILKINSON Plaintiffs DWANE S. WILKINSON and HEATHER L. CLAWSER (formerly Wilkinson) Defendants No. 02-40:17 Civil Term CIVIL ACTION PLAINTIFFS' PRELIMINARY OBJFCTIONS TO ANSWER AND NEW MATTER OF DEFENDANT CLAWSER Failure of Pleading to Conform to Rule of Court 1. Plaintiffs Dwane E. Wilkinson and Constance S. Wilkinson instituted this action by writ of summons on August 23, 2002. 2. By agreement, the parties extended the filing date of Plaintiffs' complaint to May 22, 2003. 3. On May 22, 2003, Plaintiffs filed their verified complaint, which was endorsed with a notice to defend. 4. On May 27, 2003, counsel for Defendant Clawser accepted service of the Complaint on behalf of their client. 5. Pennsylvania Rule of Civil Procedure 1026 provides in relevant part: ... [E]very pleading subsequent to the Complaint shall be filed within twenty days after service of the preceding pleading, but no pleading need be filed unless the preceding pleading contains a notice to defencl or is endorsed with a notice to plead. Pa.R.C.P. 1026 (a) (emphasis added). 6. Defendant Clawser failed to file a subsequent pleading within twenty (20) days after service of the complaint, as required by Pa. R.C.P. 1026. 7. Defendant Clawser did not request an extension of time within which to file her answer or other responsive pleading. 8. On July 3, 2003, after timely answering Defendant Clawser's request for production of documents, Plaintiffs filed and served on both defendants a motion for judgment on the pleadings. 9. On July 9, 2003, Plaintiffs filed and served on both defendants the praecipe to list the motion for judgment on the pleadings for argument court. 10. Defendant Clawser failed to file her answer with new matter until July 9, 2003. 11. Defendant Clawser failed to file her answer with new matter until after plaintiffs served her with their motion for judgment on the pleadings. Wherefore, pursuant to Rule 1028 (a) (2), plaintiffs request that the Court strike the answer with new matter of Defendant Clawser for fail~t~ c~nf~° rule ;~,°,~,;, Theresa Barrett Male, Esquire Supreme Court #46439 513 North Second Street Harrisburg, PA 17101 717-233-3220 Counsel for Plaintiffs Date: July 28, 2003 PROOF OF SERVICE I hereby certify that I am this day serving the foregoing document upon the persons and in the manner indicated below which service satisfies the requirements of Pa. R.C.P. 440: Service by first-class mail addressed as follows: Charles Rector, Esquire 1104 Fernwood Avenue, Suite 203 Camp Hill, PA 17011-6912 Attorney for Defendant Wilkinson Mark C. Duffle, Esquire Duffle Johnson Stewart & Weidner 301 Market Street, P.O. Box 109 Lemoyne, PA 17043 Attorneys for Defendant Clawser Supreme Court # 46439 513 North Second Street Harrisburg, Pennsylvania 17101 (717) 233-3220 Counsel for Plaintiffs Date: July 28, 2003 Johfison, Duffle, Stewart & Weidner By: Mark C. Duffle I.D. No. 75906 301 Market S~reet P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 Attorneys for Defendant Heather L. Clawser DWANE E. WILKINSON and CONSTANCE S. WILKINSON, Plaintiffs DWANE S. WILKINSON and HEATHER L. CLAWSER (formerly Wilkinson), Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-4017 Civil Term CIVIL ACTION - LAW ANSWER OF DEFENDANT HEATHER L. CLAWSER TO PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADINGS AND NOW, this J~1~' day of August 2003, comes Defendant Heather L. Clawser (formerly Wilkinson), by and through her undersigned attorneys, Johnson, Duffle, Stewart & Weidner, and files this Answer to Plaintiffs' Motion for Judgment on the Pleadings as follows: 1. Admitted. 2. Admitted. By way of further response, Defendant Heather L. Clawser believes and therefore avers that Defendant Dwane S. Wilkinson's current address is 100 Kensington Boulevard, #904, Bluffton, SC 29910. 3. Admitted. By way of further response, counsel for Plaintiffs was aware that the undersigned was counsel of record for Defendant Heather L. Clawser in a custody action which had just been resolved during the summer of 2002, and failed to inquire as to whether the undersigned would accept service on behalf of Defendant Heather L. Clawser. Instead, counsel for Plaintiffs chose to personally serve Defendant Clawser at her place of employment via the Cumberland County Sheriff. Furthermore, the Plaintiffs and Defendant Heather L. Clawser are parties to an Order of Court pertaining to grandparent visitation whereby Plaintiffs have grandparents rights to visit with their grandchildren, the children of Defendant Clawser and Defendant Wilkinson. They have contact with Defendant Clawse,r on a regular basis and were aware Defendant Clawser had relocated, and still chose to serve her at her place of employment through the Sheriff. The Praecipe to Reissue the Writ of Summons was filed on October 25, 2002. The Plaintiffs knew that Defendant Clawser changed residences because Plaintiffs Dwane E. Wilkinson were at the new residence on June 9, 2002, June 30, 2002, July 6, 2002, August 18, 2002 and OCtober 14, 2002. Plaintiff's counsel still decided to serve Defendant Clawser at her place of business. 4. Admitted. 5. Admitted. 6. Admitted. The undersigned counsel for Defendant Clawser extended the filing date of Plaintiffs' Complaint until May 22, 2003. 7. Admitted. Admitted. 9. Admitted. 10. Admitted in part. Denied in part. It is admitted that the averments set forth in paragraph 10 are counsel's summary of Plaintiffs' position. It is denied in that should any of those provisions set forth facts inconsistent with or in addition to those set forth in the Complaint, those provisions are unverified and should be stricken. To that extent, the same is denied. 11. Denied. The Plaintiffs in paragraph 11 are making an unverified averment of fact which does not appear of record verified by Defendant Wilkinson, and therefore the same is denied. 12. Admitted in part. Denied in part. As set forth in Defendant Clawser's Answer to Plaintiffs' Complaint and in Defendant Clawser's New Matter, in general, the Defendant's position is that Plaintiffs made a gift in the amount of $22,832.19 to Defendants and therefore are not entitled to the relief requested. To the extent that the averments set forth in paragraph 12 are inconsistent with any verified facts, those facts are denied. 13. Admitted. 14. Admitted. 15. Admitted. Counsel for Defendant Clawser did not request an extension of time within which to file an answer and responsive pleading, as this is not necessary under Rule 237.1 of the Rules of Civil Procedure until after such time as notice of intention to enter judgment required by Rule 237.1 is served upon the responding party. 16. Admitted. 17. Admitted 18. Admitted. Counsel for Defendant Clawser is unaware of any subsequent pleading which was filed by Defendant Wilkinson, as none has been served upon counsel for Defendant Clawser to date. 19. Denied. The undersigned counsel for Defendant Clawser is unaware of whether Defendant Wilkinson or his counsel requested an extension of time within which to file an answer or responsive pleading, and therefore the same is denied. 20. Admitted. As of July 3, 2003, the Defendants had not denied any allegations in Plaintiffs' Complaint since Defendant Ciawser's Answer was not filed until July 8, 2003. 21. Denied. The allegations in Plaintiffs' Complaint are not deemed admitted, as Defendant Clawser has filed a responsive pleading, and Plaintiffs' reliance upon Rule 1029 is misplaced. Plaintiffs' Motion in paragraph 21 omits language in Rule 1029(b) which further provides guidance for the misplaced reliance upon this Rule. Rule 1029(b) provides that "Averments in a pleading to which a responsive pleading is required are admitted when not denied specifically or by necessary application." Pa.R.C.P. 1029(b). 22. Admitted. It is admitted that Plaintiffs' counsel, in a roundabout way, sets forth Rule 1029(a). Plaintiffs' counsel's reliance upon Rule 1034 is misplaced. What Plaintiffs' counsel is attempting to do is seek a default judgment by ignoring and avoiding the Rule 237.1 Notice. 23. Denied. The earliest point in time where a court may entertain a motion for judgment on the pleadings is when it is presented after plaintiff has failed to reply to any affirmative defenses raised as new matter in defendant's answer, and there is no possibility of delay in trial. Boron v. Smith, 380 Pa. 98, 110 A.2d 169 (1955). Case law has established that the pleadings are not closed until a complaint and an answer have been filed, and counsel for Plaintiffs is attempting to seek a judgment by default by ignoring the )rocedural rules for securing such a judgment as set forth in Rule 237.1, et seq. 24. Admitted. Counsel for Defendant Clawser recently filed an Answer and setting a trial date would be premature as depositions are scheduled for August 26, 2003. WHEREFORE, Defendant Clawser respectfully requests that this Honorable Court deny Plaintiffs' Motion and grant further relief as requested in Defendant Clawser's Motion for Costs and Attorney Fees Pursuant to 42 P.S. {}2503. :215723.3 Respectfully submitted, JOHNSON, DUFFLE, STEWART & ~D)NER Uar~C. Duffle P.O. Box 109 Lemoyne, PA 17043-0109 (717) 761-4540 Attorneys for Defendant Heather L, Clawser CERTIFICATE OF SERVICE AND NOW, this i'"{~k day of August 2003, the undersigned does hereby certify that a copy of the foregoing document was served upon the other parties of record in the following manner; By First Class U.S. Mail tn: Theresa Barrett Male, Esquire 513 N. Second Street Harrisburg, PA 17101 Charles Rector, Esquire 1104 Fernwood Avenue, Suite 203 Camp Hill, PA 17011-6912 JOHNSON, DUFFLE, STE¥ MaC C. Duffle Att6rney I.D. No. ~& WE/DNER 36 Johnson, Duffle, Stewart & Weidner By: Mark C. Duffle I.D. No. 75906 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 Attorneys for Defendants DWANE E. WILKINSON and CONSTANCE S. : WILKINSON, : : Plaintiffs : DWANE S. WILKINSON and HEATHER L. CLAWSER (formerly Wilkinson), Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-4017 Civil Term CIVIL ACTION - LAW DEFENDANT CLAWSER'S ANSWER AND NEW MA TTER TO PLAINTIFF'S PRELIMINARY OBJECTIONS TO ANSWER AND NEW MA TTER OF DEFENDANT CLAWSER 1. Admitted. 2. Admitted. By way of further response, the parties referred to in Paragraph 2 are Plaintiff's and counsel and Defendant Clawser and counsel. Counsel for Defendant Clawser agreed to extend counsel for Plaintiff's filing date to file the Complaint to May 22, 2003. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted, By way of further response, counsel for Plaintiff is attempting to rely on Pa.R,C.P. {}237.2 with respect to an Agreement for the extension of time within which to file. There is no requirement for an Agreement to extend time in the Rules of Civil Procedure although they may extend time under Pa.R.C.P. 1003. 8. Admitted. 9. Admitted. 10. Admitted. 11. Admitted. DEFENDANT CLA WSER'S NEW MA TTER TO PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANT CLAWSER'S ANSWER AND NEW MA TTER 12. The averments in Paragraph's 1 through 12 are incorporated herein as if set forth fully. 13. Counsel for Plaintiff continues to ignore Rule 237.1 et seq. and attempts to rely on other procedural rules to secure a default judgment. Pa.R.C.P. 237.1 et seq. provides a ten day notice requirement prier to seeking a judgment by default. 14. There is no supporting case law with respect to striking an Answer and New Matter filed beyond twenty (20) days allotted in Rule 1026. 15. To grant the relief requested by Plaintiff's counsel in the Preliminary Objections, would be to render Rule 237.1 et seq. irrelevant and useless. 16. The stated purpose of Pa.R.C.P. is to avoid snap judgments. Striking Defendant Clawser's Answer and New Matter on such grounds would prevent any responsive pleading resulting in a judgment by default. 17. Plaintiff's counsel continues to misinterpret the Rules of Civil Procedure to achieve the result of a default judgment. Pa.R.C.P. et seq. are very specific with respect to when a default judgment is proper and how it is obtained. WHEREFORE, Defendant Heather L. Clawser respectfully requests this Court to deny Plaintiff's Preliminary Objections to Defendant's Answer and New Matter and grant Defendant Clawser reasonable attorney's fees and costs pursuant to Pa.C.S.A. §2503 which prayer shall be set forth in a separate motion of Defendant Clawser. Respectfully submitted, JOHNSON, DUFFLE, STEWART & WEIDNER :217238 DATED: August 15, 2003 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 (717) 761-4540 Attorneys for Plaintiffs CERTIFZCA TE OF SERVZCE ,AND NOW, this /~day of August, 2003, the undersigned does hereby certify that ~ did this date serve a copy of the foregoing document upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Charles Rector, Esquire 1104 Fernwood Avenue Suite 203 Camp Hill, PA 17011-6912 Theresa Barrett Male, Esquire 513 N. Second Street Harrisburg, PA 17101 JOHNSON, DUFFLE, STEWART &,~.~l~ PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court CAPTION OF CASE (entire caption must be stated in full) Dwane E. Wilkinson and Constance S. Wilkinson, Plaintiffs VS. Dwane S. Wilkinson and Heather L. Clawser (formerly Wilkinson), Defendants NO.: 02-4017 CIVIL ACTION - LAW State matter to be argued (i.e., Plaintiff's motion for new tdal, Defendant's demurrer to complaint, etc.): Defendant Clawser's Motion for Costs and Reasonable ttomeys Fees pursuant to 42 P.S. A ' Sect. 2503.. Dated: August 15, 2003 Identify counsel who will argue case: a) For Plaintiffs: Teresa Barrett Male, Esq. Address: 513 N. Second Streett, Harrisburg, PA 17101 b) For Defendant Clawser: Mark C. Duffle, Esquire Address: 301 Market Street, P.O. Box 109, Lernoyne, PA 17043-0109 c) For Defendant Wilkinson: Chades Rector, Esq. Address: 1104 Fernwood Avenue, Suite 203, Camp Hill, PA 17011-6912 I will notify all parties in wdting within two days that this case has been listed for argument. Argument Court Date: October 22, 2003 Mark~. Duffle ~'/ Attorney for Defendant Claws/er Attorney I. D. No. 75906 (717) 761-4540 Johnson, Duffle, Stewart & Weidner By: Mark C. Duffle I.D, No. 75906 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 Attorneys for Defendant Heather L. Clawser DWANE E. WILKINSON and CONSTANCE S. WILKINSON, Plaintiffs DWANE S. WILKINSON and HEATHER L. CLAWSER (formerly Wilkinson), Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02.4017 Civil Term CIVIL ACTION - LAW DEFENDANT CLAWSER'S MOTION FOR COSTS AND REASONABLE ATTORNEY FEES PURSUANT TO 42 P.S. §2503 AND NOW, this ~'~'day of August 2003, comes Defendant Heather L. Clawser, by and through her undersigned attorneys, Johnson, Duffle, Stewart & Weidner, and files this Motion for Costs and Reasonable Attorney Fees pursuant to 42 P.S. §2503, and in support thereof avers as follows: 1. Plaintiffs Dwane E. Wilkinson and Constance S. Wilkinson, by and through their attorney, Theresa Barrett Male, Esquire, filed a Writ of Summons on August 23, 2002, against Defendants Dwane S. Wilkinson and Heather L. Clawser (formerly Wilkinson). 2. On September 11, 2002, Plaintiffs, by and through their counsel, attempted to serve Defendant Clawser at her former address of 36 W. Coover Street, Mechanicsburg, Pennsylvania. 3. The Plaintiffs and Defendants are parties to an Order of Court granting grandparent visitation to the minor children of Defendants, and by virtue of custodial exchanges made pursuant to that Order Plaintiffs were well aware that Defendant Clawser had relocated to her current address, 1341 Old Willow Mill Road, Mechanicsburg, Pennsylvania. 4. Upon re-issuance of the Writ of Summons on October 25, 2002, Plaintiffs, by and through their counsel, served the Writ upon Defendant Clawser at her place of business before her fellow employees. 5. On January 8, 2003, the undersigned counsel for Defendant Clawser entered his appearance and asked this Honorable Court to issue a Rule to Plaintiffs to file a complaint. A copy of said Praecipe was served upon counsel for Plaintiffs on January 16, 2003. 6. Due to the fact that the undersigned counsel was on vacation January 17-23, 2003, an extension of time was granted to Plaintiff's counsel wherein she had thirty (30) days to file the complaint. 7. On April 21, 2003, counsel for Defendant Clawser asked Plaintiffs' counsel to file a complaint in order to move this matter along, and agreed to afford Plaintiffs' counsel an additional thirty (30) days (until May 22, 2003) in which to file a formal complaint. 8. Beginning May 7, 2003, counsel for Defendant Clawser began attempting to schedule depositions, which in fact have been scheduled and rescheduled a number of times at Plaintiffs' request, finally arriving at a deposition date of August 26, 2003. 9. Counsel for Defendant Clawser mailed to all parties Notice of Intent to Serve Subpoenas to Produce Documents and Things for Discovery pursuant to Rule 4009.21, and subsequently forwarded those subpoenas in an effort to move the case along expeditiously. 10. Counsel for Defendant Clawser mailed a Request for Production of Documents to Plaintiffs as well as to Defendant Wilkinson. Plaintiffs did file a timely response with objections to said Request. To date, we are awaiting Defendant Wilkinson's response, although counsel for Defendant Wilkinson, Charles Rector, Esquire, has indicated that Defendant Wilkinson essentially has nothing to add to the Request for Production of Documents. 11. On July 3, 2003, counsel for Plaintiffs filed a Motion for Judgment on the Pleadings. A true and correct copy of said Motion is attached hereto and incorporated herein as Exhibit "A." 12. On or about July 8, 2003, Defendant Clawser filed her Answer to Plaintiffs' Complaint and New Matter. 13. On or about August 14, 2003, Defendant Clawser, by her undersigned counsel, filed an Answer to Plaintiffs' Motion for Judgment on the Pleadings. A true and correct copy of said Answer is attached hereto and incorporated herein as Exhibit "B." 14. Counsel for Plaintiffs is filing a Motion for Judgment on the Pleadings prematurely, as the pleadings are not closed. Counsel for Defendant Clawser has provided Plaintiffs' counsel with case law support indicating the same, and Plaintiffs' counsel refuses to withdraw her motion. 15. Counsel for Plaintiffs has stated that she has no case law authority to support her Motion. 16. Under 42 P.S. §2503, any participant may be awarded counsel fees due to the conduct of another party.., which was arbitrary, vexatious, or in bad faith. 42 P.S. §2503. 17. The actions of Plaintiffs by and through their counsel are completely arbitrary, vexatious, and in bad faith, as they are done to harass Defendant Clawser. 18. Defendant Clawser should not be held responsible for payment of her attorney fees to defend such a clearly meritless motion. 19. By facsimile correspondence dated July 8, 2003, and August 14, 2003, counsel for Defendant Clawser set forth for Plaintiffs' counsel the reasons why such a motion is misplaced and premature, and has supplied Plaintiffs' counsel with supporting case law. A true and correct copy of said correspondence is attached hereto and incorporated herein as Exhibit "C." In light of this fact, Plaintiffs' counsel insists on continuing with this motion which has no basis in law, and therefore Plaintiffs' conduct should be deemed arbitrary, vexatious, and in bad faith. 20. To date, Defendant Clawser has incurred $2,071.00 in counsel fees for responding to and briefing a frivolous motion. A true an correct copy of Defendant Clawser's fees for legal services will be provided at argument totaling all fees through disposition of the Motion. WHEREFORE, Defendant Heather L. Clawser prays this Honorable Court to enter judgment in her favor and awarding reasonable counsel fees and costs pursuant to 42 P.S. Section 2503 in defending Plaintiffs' untimely Motion for Judgment on the Pleadings. :217149 Respectfully submitted, JOHNSON, DUFFLE, ST~.~ WEIDNER AMt: rokr F'~e ~, ~ UDff. ' ~,lo. 759'~06~'-~ 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 (717) 761~540 Afforneys for Defendant Heather L. Clawser CERTIFICATE OF SERVICE AND NOW, this I~"'"day of August 2003, the undersigned does hereby certify that a copy of the foregoing document was served upon the other parties of record in the following manner: By First Class U.S. Mail to: Theresa Barrett Male, Esquire 513 N. Second Street Harrisburg, PA 17101 Charles Rector, Esquire 1104 Femwood Avenue, Suite 203 Camp Hill, PA 17011-6912 JOHNSON, DUFFLE, STEWART &/~/'I~IDNER M,~ C. Duffle Attorney I.D. No. 759(76 Theresa Barrett Male Supreme Court # 46439 513 North Second Strut Harrisburg, PA 17101 (717) 233-3220 Counsel for Plaintiffs COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DWANE E. WILKINSON and CONSTANCE S. WILKINSON Plaintiffs DWANE S. WILKINSON and HEATHER L. CLAWSER (formerly Wilkln~on) Defendants AND NOW, July : No. 024017 Civil Term : : : CIVIL ACTION ORDER OF COURT , 2003, upon consideration of Pla'mtiffs' motion for judgment on the pleadings pursuant to Rule 1034, the Court GRANTS the motion and enters judgment in favor of Plaintiffs and against Defendants. Plaintiffs' Complaint having established that counsel for Defendant Clawser are holding in an interest-bearing account the sum of $22,833.19, the Court DIRECTS counsel to release this sum, with interest earned, to Plaintiffs' counsel within five (5) days of the date of this order. BY THE COURT: Distribution Theresa Barrett Male, Esq., 513 North Second St., Harrisburg, PA 17101 Charles Rector, Esq., 1104 Femwood Ave., Ste. 203, Camp Hill, PA 17011-6912 Mark C. Duffle, Esq., Duffle Johnson Stewart & Weidner, P.O. Box 109, Lemoyne, PA 17043 Theresa Barrett Mal~ Supreme Court # 46439 513 North Second Street Harrisburg, PA 17101 (717) 233-3220 Counsel for Plaintiffs COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DWANE E. WILKINSON and CONSTANCE S. WILKINSON Plaintiffs DWANE S. WILKINSON and HEATHER L. CLAWSER (formerly Wilkinson) Defendants PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADINGS 1. Plaintiffs Dwane E. Wilkinson and Constance S. Wilkinson, who reside at 431 South High Street, Mechanicsburg, Cumberland County, Pennsylvania 17055, instituted this action by writ of summons fried on August 23, 2002. A certified copy of the docket entries is attached as Exhibit 1. 2. The Cmnberland County Sheriff served the writ on Defendant Dwane S. Wilkinson by certified mail at his residence at 5-A Old South Court, Bluffton, South Carolina 29910. See Exhibit 1. 3. After not finding Defendant Heather L. Clawser, formerly Wilkinson, at her address, the Sheriff served a reissued writ on Defendant Clawser personally at her place of employment. See Eyahibit 1. 4. On January 8, 2003, Defendant Clawser, by and through her attorneys, Johnson, Duffle, Stewart and Weidner, filed a praecipe requesting a rule to file a complaint. On January 8, 2003, the prothonotary issued the rule. The parties extended the filing date of Plaintiffs' complaint to May 22, 2003. On May 22, 2003, Plaintiffs filed their verified complaint, a copy of which is attached as Exhibit 2. 8. Plaintiffs' complaint was endorsed with a notice to defend. See Exhibit 2. 9. Plaintiffs' complaint raises three counts: breach of express oral contract; unjust enrichment; and constructive trust. See Exhibit 2. 10. Plaintiffs maintain that: In 1997, defendants, who then were married, requested that Plaintiffs assist them in purchasing a home located at 36 Coover Street, Mechanicsburg, Cumberland County, Pennsylvania. b. Defendants agreed to repay the $22,833.19 which Plaintiffs advanced to them in full at settlement on the sale of the Coover Street property. c. After Plaintiffs instituted this action, Defendants sold the Coover Street property. d. By agreement, Counsel for Defendant Wilkinson deposited the $22,833.19 into an escrow account. e. Plaintiffs seek an order directing counsel to release the escrowed funds to Exhibit 2; Complaint. Plaintiffs. 11. Defendant Wilkinson agrees with Plaintiffs that he and Defendant Clawser promised to repay Plaintiffs in full when the defendants sold the Coover Street property. 2 12. Defendant Clawser claims that Plaintiffs gifted the $22,833.19 to defendants and therefore are not entitled to relief. 13. On May 27, 2003, counsel for Defendant Clawser accepted service of the Complaint on behalf of their client. A copy of the Acceptance is attached as Eyahibit 3. 14. Defendant Clawser did not file a subsequent pleading within twenty (20) days after service of the complaint, as required by Pa. R.C.P. 1026. 15. Defendant Clawser did not request an extension of time within which to file her answer or other responsive pleading. 16. Defendant Clawser did serve Plaintiffs with a request for production of documents, which Plaintiffs answered in advance of the due date. 17. On May 28, 2003, Charles Rector, Esquire, counsel for Defendant Wilkinson accepted service of the Complaint on behalf of his client. A copy of the Acceptance is attached as Exhibit 4. 18. Defendant Wilkinson did not file a subsequent pleading within twenty (20) days after service of the complaint, as required by Pa. R.C.P. 1026. 19. Defendant Wilkinson did not request an extension of time within which to file his answer or other responsive pleading 20. Defendants have not denied the allegations in Plaintiffs' complaint. 21. Pursuant to Pa .R.C.P. 1029, the allegations in Plaintiffs' complaint are deemed admitted because they are not denied. 22. Any party may move for judgment on the pleadings aRer the relevant pleadings are closed, but within such time as not to unreasonably delay the trial. Pa. R.C.P. 1034. 23. The pleadings in this action are closed. 3 24. No trial date is set. Wherefore, plaintiffs request that the Court grant this motion and enter judgment or order pursuant to Pule 1034 Co). Supreme Court g46439 513 North Second Street Harrisburg, PA 17101 717-233-3220 Counsel for Plaintiffs Date: July 2, 2003 4 Exhibit 1 -~YSSlO '2002-04017 Reference No..: Case Type ..... : WRIT OF sUMMONS judgment ..... ~ .00 Judge AssigneR: Disposed Desc.: .... ............ Case Comments ......... Cumberland ~o~nty Protbon°tary's office uivii case Inquiry WILKINSON DWANE E ET AL (va) WILKINSON DWANE ET AL Filed ........ : Time,.: ...... : Execution Date Jury Trial... Disposed Date Higher Crt 1. Higher Crt 2. Page 1 8/23/2oo2 8:32 o/oo/0oo0 0/00/0o00 ********************** Attorney Info General Index wILKINSON DWAYNE E PLAINTIFF MALE THERESA BARRETT wILKINSON CONSTANCE S pLAINTIFF MALE THERESA BARRETT wILKINSON DwANE S DEFENDANT 5-A OLD sOUTH COURT BLUFFTON SC 22910 WILKINSON HEATHER L DEFENDANT 36 WEST COOVER STREET MECHANI CSBURG PA 17055 * Date Entries ......... ************************************* ............. FIRST ENTRY ......... 9/11/2002 SHERIFF'S FADE RETU~o,E~Dn~F~ILEpD&t Tvoe · Certified Mail Case E S ' o-~ OLD Sh~ZDp~y.: a. Thomas ~%~02 0000 00 Postage Pre _a!d:i Op~/~ ./ THE~ESA BARRiTT MALE 09/11/2002 CostS:....-: ~Ig6~z 08/2~2002" Recpt Card Signed: DW__A~_E__W_I_L__KI_N_S_O_N___ Date better _ :_ .................................. 9/11/2002 Case Type: WRIT OF SD-MMONS Not Found Ret Type.: Litigant.: WILKINSON HEATHER L Add~ess..: 36 WEST COOVER STREET5 C_ty/St/Zp: M~EC~H~ICp~BBI~vG.'T~RI~0A ~ARRETT ~__~_.09~ID TO ~D costs .... : .~--f,~,,o~ ' VACANT. MAIL IS ~'£'±~ Addl Commenns.: n~oo= %S ............. Addl Comments.: POST OFFICE HAS NO FORWARDING. ...................................... ................................ 10/2s/2002 ~&~PE TO REISSUe. WR~?_O_{_S__~U__°?S_ - ~ T~ERESA E~TT MALE ES~ Li.t~igann.: w~mD~%~"=~]rr~ 300 CORPORATE CENTER DRIVE Ad~ es ... PA 17011 St Z : CAMP HILL ~YTo/. ~EATHER CLAW~ER ?LKINSON ----- ' ' RI D SMITH Costs .... : ~o. C DUFFIE ESQ ............................................ 1/o8/2o03 ~-~6-~iLE COMPLAINT - ~y CUR~_I_S__~__~,_??_{~_?~_~_?N_?~__~_~_ ~/11/200~ ~6&E~T~C~. $~ SE{~I~E ~OR COMPLAINT TO DEFT DWANE S WILKIN~O~ s/11/2oo3 ~6~6~-OF SERVICE FOR COMPLAINT ~O DEFT HEATHER n MARK C DUFFIE ESQ .... LAST ENTRY .............. P~S510 200~-04017 WILKINSON DWANE E ET AL Reference No..: Case TVDe ..... : WRIT OF SUMMONS ~u~gmeh% ...... .oo ~uage Assigned[ Disposed Desc.. Cumberland County Prothonotary,s Office Civil Case Inquiry (rs) WILKINSON DWANE ET AL Filed ........ Time ......... : Execution Date Page 2 8/23/2002 8:32 0/o0/0000 0/00/ooo0 Jury Trial .... Disposed Date ............ Case Comments ............. Higher Crt 1.: * Higher Crt 2.: Escrow Information . * Fees & Debits Beg Bal P ts/Ad' End Bal . WRIT OF SLTMMONS 35.00 35.00 .00 TAX ON WRIT .50 .50 .00 SETTLEMENT 5.00 5.00 .00 AUTOMATION FEE 5.00 5.00 .00 JCP FEE 5.00 5.00 .00 50.50 50.50 .00 * End of Case Information ************* ********************* . · Testimony w~er~f, ~nd the ~1 of ~id ~,s / _day Exhibit 2 'l'h~msa Barrett Male Supren~ Court # 4~439 513 North Second ~'eet Harrisburg, PA 17101 Counsel for Plsln6ffs COURT OF COMlVION PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DWANE E. WILKINSON and CONSTANCE S. WILKINSON Plainfi~s v. : No. 02-4017 Civil Term : DWANE S. WILKINSON an~ : HEATHER L. CLAWSER (formerly Willrln~on): Defendants : CIVIL ACTION NOTICE You have been sued in corm. ff you wish to defend against the ¢~imu Set forth in the following pages, you must take action within twenty (20) days after thi,~ colllplaint and notice are served, by entering a written appearance personally or by attorney and filing in wrifil~g with the court your defemes or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the plaintiff. You may lose money property or other fights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWTER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Ctunberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DWANE E. WILKINSON and CONSTANCE S. WILKINSON Plaintiffs DWANE S. WN_KINSON and HEATHER L. CLAWSER (formerly W,~.~on) Defentbnt~ No. 024017 Civil Term CIVIL ACTION COMPLAINT 1. Phlntiffs Dwane E. Wilkin.qon and Constance S. Wilkln.qon realde at 431 South High Street, Mechnnlcsburg, Cumberland County, Penn.qylvania 17055. 2. Defendant Dwane S. Wilkin.qon resides at 5-A Old South Court, Blufffon, South Carolina 29910. 3. Defendant Heather L. Clawser, formerly Heather L. Wilkin.qon, resides at 1341 Old Willow Mill Road, Mechanicsburg, Cumberland County, Pennsylvania 17055. 4. Defendants Wilkin.qon and Clawser formerly were husband and wife, respectively. 5. In or about 1997, Defendants entered into a contract to purchase improved real estate located at 36 Coover Street, Mechanicsburg, Cumberland County, Pennsylvania ("Coover Street property"). 6. Defendants lacked sufficient funds for the down payment and the closing costs, or a portion thereof, to purchase the Coover Street property. closing costs. 8. Defendants epproached plaintiffs for funds to cover the down payment and the Defendants represented and warranted to plaintiffs that defendants would repay plaintiffs in full when defendants sold the Coover Street property. 9. In reliance on defendants! promise to repay plaintiffs in full when defendants sold the Coover Street property, plaintiffs agreed to advance certain sums to defendants in connection with defendants' purchase of the Coover Street property. 10. On April 17, 1997, plalntit~q withdrew from their Ameriehoice Federal Credit Union account and transferred to defendants the sum of $5,000.00. 11. On May 14, 1997, plaintiffs transferred the sum of $17,833.19 from their Americhoice Federal Credit Union account directly into the Americhoice Federal Credit Union account of Heather Wilkinson, now Clawser. 12. Following the transfers set forth in paragraphs 10 and I1, defendants purchased the Coover Street property. 13. Subsequent to defendants' settlement on their purchase of the Coover Street property, defendants promised to repay plaintiffs the sum of $22,833.19 (''the loan"). 14. Defendants promised to repay the loan when they had settlement on their sale of the Coover Street property. 15. 16. 17. 18. The loan was not secured by the Coover Street property or otherwise. Defendants accepted the terms of the loan. Defendants Wilkinson and Clawser were divorced in November 2001. On June 10, 2002, plaintiffs made demand on defendants to repay the loan. 2 19. Plaintiffs initiated this action by writ of summons filed August 23, 2002. 20. On January 8, 2003, counsel for defendant Clawser entered their appearance and mused the Prothonotary to issue a rule to file a complaint. 21. On April 2, 2003, the parties entered into an escrow agreement. 22. Pursuant to the terms of the escrow agreement, counsel for defendant Clawser deposited into counsel's escrow account the sum of $22,833.19, the mount of the loan. 23. Pursuant to the terms of the escrow agreement, counsel for defendant Clawser is holding in counsel's escrow account the sum of $22,.833.19 pending resolution of the instant action. 24. By agreement, the parties extended the filing date for plaintiffs' complaint to on or before May 22, 2003. Count I - Breach of EXpress Oral Agreement 25. Plaintiffs incorporate by reference the averments set forth in paragraphs 1 through 24. 26. Defendants entered into an express oral agreement with plaintiffs as ~et forth in paragraphs 1 through 24. 27. Defendants breached the eXpress oral agreement by failing to tender payment to plaintiffs at settlement on defendants' sale of the Coover Street property. 28. Plaintiffs are entitled to prejudgment interest at the legal rate. Wherefore, plaintiffs demand judgment against defendants in the amount of $22,833.19 and prejudgment interest, plus costs, counsel fees and expenses, and additional interest accruing during the pendency of this action. 3 24. 29. Count II - Unjust Enrichmem Plaintiffs incorporate by reference thc averments set forth in parasraphs 1 through 30: Plaintiffs conferred a benefit on defendants by loaning defendants monies. 31. Defendants appreciated the benefits provided by plaintiffs. 32. Defendants accepted and retained the benefits provided by plaintiffs. 33. It would be inequitable for defendants to retain the benefits provided by plaintiffs without the paYment of value 34. Plaintiffs are entitled to interest at the judgment rate of 6% per annum. Wherefore, plaintiffs demand judgment against defendants in the amount of $22,833.19 and prejudgment interest, plus costs, counsel fees and expenses, and additiorml interest accruing during the pendency of this action. Count 111 - Conslnmtive Trust 35. Plaintiffs incorporate by reference the averments set forth in paragraphs 1 through 24. 36. Defendants benefited fi:om the transaction preceding paragraphs. with plaintiffs described in the 37. Defendants acquired the 36 Coover Street property under such circumstances that they held a beneficial interest in the property as trustees for plaintiffs. 38. Defendants had an equitable du~y to convey to plaintiffs $22,833.19 fi:om defendants' sale of the Coover Street property. 4 39. Defendants will be unjustly enriched if they are permitted to retain the $22,833.19 from defendants' sale of the Coover Street property which defendant Clawser's counsel are holding in counsel's escrow account. Wherefore, plaintiffs request that the $22,833.19 proceeds from the sale of the real estate located at 36 Coover Street, Mechanicsburg, Cumberland County, Penn~lvania be held in trust for pJaint~ffs, and that the court thereafter direct counsel for defendant Clawser to release to plaintiffs the entire sum being held in counsel's escrow account. Theresa Barrett Male, Esquire Supreme Court//46439 513 North Second Street I-Iaxrisburg, PA 17101 717-233-3220 Counsel for PJalntlffs Date: May 22, 2003 5 VERIFICATION we, Dwane E, Willci~on and Constance $. Wilkinson, state upon personal knowledge or information and belief that the averments set forth in the foregoing document nre true. We understand timt f~lse stnt. m'n~t~ lm-eln are m,~de subject to the penalties of 18 1~. C.$. § 4~04, relatin~ to unsworn falsification to authorities. Dwnn~ E. WJ~n ' Exhibit 3 'theresa Barrett Male Supreme Cour~ # 46439 513 Narth Second $1reet Harrisburg, PA 17101 (7~7) 233-3220 Counsel for PIninfi~ COURT OF COlvlMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DWANE E. WILKINSON and CONSTANCE $. WILKINSON Plaintiffs DWANE S. WILKINSON and HEATHER L. CLAWSER (formerly Defendants : : : : : : : No. 02-4017 Civil Term CIVIL ACTION - LAW ACCEPTANCE OF SERVICE I accept service of the Complaint. I certify that I am authorized to accept service on bebMf of Defen~lam Heather L. Clawser. Date: May ,~7~- ,2003 Exhibit 4 Theresa Barrett Male S~a~me Court # 4~39 513 North Second Street I-Ianisburg, PA 17101 (~17) 233-32.20 Counsel for plsinfiffs COURT OF COMMON PT .'PAS OF CUMBERLAND COUNTY, PENNSYLVANIA :-,. DWANE E. WILK/NSON and CONSTANCE $. WILKINSON P~ DWANE S. WITKINSON and HEATI-~R L. CLAWSF, R (forn~rl¥ W"~-,on) Defendsn~ No. 02-40i7 Civil Term CIVIL ACTION - LAW ACCEPTANCE OF SERVICE behah~ of Defendan~ Dwane S. Wilkln~on. Date: May '~°~ ,2003 Johnson, Duffle, Stewart & Weidner By: Mark C. Duffle I.D. No. 75906 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 Attorneys for Defendant Heather L. Clawser DWANE E. WILKINSON and CONSTANCE S. WILKINSON, Plaintiffs DWANE S. WILKINSON and HEATHER L. CLAWSER (formerly Wilkinson), Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 024017 Civil Term CIVIL ACTION - LAW ANSWER OF DEFENDANT HEATHER L. CLAWSER TO PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADINGS AND NOW, this ~'(" day of August 2003, comes Defendant Heather L. Clawser (formerly Wilkinson), by and through her undersigned attorneys, Johnson, Duffle, Stewart & Weidner, and files this Answer to Plaintiffs' Motion for Judgment on the Pleadings as follows: 1. Admitted. 2. Admitted. By way of further response, Defendant Heather L. Clawser believes and therefore avers that Defendant Dwane S. Wilkinson's current address is 100 Kensington Boulevard, #904, Bluffton, SC 29910. 3. Admitted. By way of further response, counsel for Plaintiffs was aware that the undersigned was counsel of record for Defendant Heather L. Clawser in a custody action which had just been resolved during the summer of 2002, and failed to inquire as to whether the undersigned would accept service on behalf of Defendant Heather L. ¢lawser. Instead, counsel for Plaintiffs chose to personally serve Defendant Clawser'at her place of employment via the Cumberland County Sheriff. Furthermore, the Plaintiffs and Defendant Heather L. Clawser are parties to an .Order of Court pertaining to grandparent visitation whereby Plaintiffs have grandparents rights to visit with their grandchildren, the children of Defendant Clawser and Defendant Wilkinson. They have contact with Defendant Clawser on a regular basis and were aware Defendant Clawser had relocated, and still chose to serve her at her place of employment Civil Action § 1034(a):3 the nature of a demurrer, provided that it is filed within the t~me permitted for the filing of a demurrer? § 1034(a):3 When motion is tardy A motion for judgment on the pleadings must be filed within such time as not to unreasonably delay the trial." The motion may be denied as tardy where it is not filed until after the case is placed on the current trial list,~ or until just before the trial,~ when it would not be possible to have the motion argued without postponement of the trial? · Illustration: Strict compliance with the rule pertain~ ing to attorney appearances was not appropriate in a personal injury suit where motions were presented the morning trial counsel was expecting to begin trial and counsel had neither notice nor the opportunity to research and prepare cogent legal arguments regarding the motions because the drafters of Rule 1034 did not envision that a motion for judgment on the pleadings would be submitted, let alone considered, on the very morning that trial was to begin and a jury was empan- eled.'? Moreover, the motion is too late when filed after the jury is sworn, or in the middle of a trial, after a mo- tion to amend the pleadings has been denied? · Observation: The general rule notwithstanding, a mo- tion for judgment on the pleadings which was not thnely filed was granted under the circumstances where only one trial term had passed as a result of the court's consideration of the motion, and where there was no showing that the complaining party was injured,a9 A delay in fi~ng a motion for judgment on the pleadings 52. Conklin v. Wetze, 5 Pa. D. & C.2d 136 (C.P. 1956). As to the filing of a preliminary objection as a demurrer, see Rule 1028(a)(4). 53. Rule 1034(a). 54. Bialek v. March, 29 Pa. D. & C.2d 519 (C.P. 1963). 55. Weygandt v. Bell Tel. Co., 65 Pa. D. & C. 177 (C.P. 1949). 56. Steudler v. Rust Engineering Co., 77 Pa. D. & C. 598 (C.P. 1952). 57. Cagnuli v. Bonnell, 531 Pa. 199, 611 A.2d 1194 (1992). 58. McHeary v. Welding, 179 Pa. Super. 358, 116 A.2d 340 (1955). 59. Leidy v. Deseret Enterprises, Inc., 252 Pa. Super. 162, 381 A.2d 164 (1977). 249 Theresa Barrett Male Supreme Court # 46439 513 North Second Street Harrisburg, PA 17101 (717) 233-3220 Counsel for Plaintiffs COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DWANE E. WILKINSON and CONSTANCE S. WILKINSON Plaintiffs DWANE S. WILKINSON and HEATHER L. CLAWSER (formerly Wilkinson) Defendants No. 02-4017 Civil Term CIVIL ACTION PLAINTIFFS' MOTION TO STRIKE FEI; MOTION FROM ARGUMENT COURT LISTING 1. Plaintiffs Dwane E. Wilkinson and Constance S. Wilkinson instituted this action by writ of summons filed on August 23, 2002, and filed their complaint on May 22, 2003. 2. Neither defendant timely filed a responsive pleading to the complaint. 3. On July 3, 2003, Plaintiffs filed a motion for judgment on the pleadings against the defendants. 4. After Plaintiffs filed their motion for judgment on the pleadings, Defendant Clawser filed an answer with new matter on July 9, 2003, to which Plaintiffs filed a preliminary objection. 5. By order dated September 23, 2003, the Court entered judgment in favor of Plaintiffs against Defendant Wilkinson for $22,833.19, the full amount of Plaintiffs' claim, plus prejudgment interest of 6%. 6. The September 23, 2003 order also denied Plaintiffs' preliminary objections and motion for judgment on the pleadings against Defendant Clawser. 7. While Plaintiffs' motion for judgment on the pleadings and prelminary objection were pending, Defendant Clawser filed a "Motion for Costs and Reasonable Attorneys Fees Pursuant to 42 P. S. § 2503" ("motion for fees") which she has listed for the October 22, 2003 session of argument court. 8. An award of fees pursuant to section 2503 of the Judicial Code must proceed on a verified petition, to which the defending party has an opportunity to respond, and an evidentiary hearing. Date: October 1, 2003 9. Defendant Ciawser's motion is not a verified petition allowing an answer or other responsive pleading by plaintiffs. Z 10.Defendant Clawser's motion for fees contains facts not of record. Defendant Clawser's motion for fees alleges facts which are in dispute. 12. The trial court may not award fees, costs or expenses pursuant to section 2503 of the Judicial Code on motion without a hearing. Wherefore, Plaintiffs request that the Court strike the motion for fees from the argument court list. Theresa Barrett Male, Esquire Supreme Court # 46439 513 N. Second St., Harrisburg, PA 17101 717-233-3220 Counsel for Plaintiffs ~ Preliminary objections may be filed to a pleading. Pa. R.C.P. 1028. Pleadings "are limited to a complaint, an answer thereto, a reply if the answer contains new matter or a counterclaim, a counter-reply if the reply to a counterclaim contains new matter, a preliminary objection and an answer thereto." Id. 1017. 2 PROOF OF SERVICE I hereby certify that I am this day serving the foregoing document upon the persons and in the manner indicated below which service satisfies the requirements of Pa. R.C.P. 440: Service by first-class mail addressed as follows: Charles Rector, Esquire 1104 Fernwood Avenue, Suite 203 Camp Hill, PA 17011-6912 Attorney for Defendant Wilkinson Mark C. Duffle, Esquire Duffie Johnson Stewart & Weidner 301 Market Street, P.O. Box 109 Lemoyne, PA 17043 Attorneys for Defendant Clawser Date: October 2, 2003 Theresa Barrett Male, Esquire Supreme Court # 46439 513 North Second Street Harrisburg, Pennsylvania 17101 (717) 233-3220 Counsel for Plaintiffs Theresa Barrett Male Supreme Court # 46439 513 North Second Street Harrisburg, PA 3,7103, (73.7) 233-3220 Counset for Plaintiffs COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DWANE E. WILKINSON and CONSTANCE S. WILKINSON Plaintiffs DWANE S. WILKINSON and HEATHER L. CLAWSER (formerly Wilkinson) DefendantS No. 02-4017 Civil Term CIVIL ACTION PLAINTIFFS' MOTION TO STRIKE FEE MOTION FROM ARGUMENT COURT LISTING 1. Plaintiffs Dwane E. Wilkinson and Constance S. Wilkinson instituted this action by writ of summons filed on August 23, 2002, and filed their complaint on May 22, 2003. 2. Neither defendant timely filed a responsive pleading to the complaint. 3. On July 3, 2003, Plaintiffs filed a motion for judgment on the pleadings against the defendants. 4. After Plaintiffs filed their motion for judgment on the pleadings, Defendant Clawser filed an answer with new matter on July 9, 2003, to which Plaintiffs filed a preliminary objection. 5. By order dated September 23, 2003, the Ceurt entered judgment in favor of Plaintiffs against Defendant Wilkinson for $22,833.19, the full amount of Plaintiffs' claim, plus prejudgment interest of 6%. 6. The September 23, 2003 order also denied Plaintiffs' prelimina~ objections and motion for judgment on the pleadings against Defendant Clawser. 7. While Plaintiffs' motion for judgment on the pleadings and prelminary objection were pending, Defendant Clawser filed a "Motion for Costs and Reasonable Attorneys Fees Pursuant to 42 P. S. § 2503" ("motion for fees") which she has listed for the October 22, 2003 session of argument court. 8. An award of fees pursuant to section 2503 of the Judicial Code must proceed on a verified petition, to which the defending party has an opportunity to respond, and an evidentiary hearing. 9. Defendant Clawser's motion is not a verified petition allowing an answer or other responsive pleading by plaintiffs,z 10. Defendant Clawser's motion for fees contains facts not of record. 11. Defendant Clawser's motion for fees alleges fac'Ls which are in dispute. 12. The trial court may not award fees, costs or expenses pursuant to section 2503 of the Judicial Code on motion without a hearing. Wherefore, Plaintiffs request that the Court strike the motion for fees from the argument court list. Theresa Barrett Male, Esquire Supreme Court # 46439 513 N. Second St., Harrisburg, PA 17101 717-233-3220 Counsel for Plaintiffs Date: October 1, 2003 1 Preliminary objections may be filed to a pleading. Pa. R.C.P. 1(:)28. Pleadings "are limited to a complaint, an answer thereto, a reply if the answer contains new matter or a counterclaim, a counter-reply if the reply to a counterclaim contains new matter, a preliminary objection and an answer thereto." Id. 1017. 2 PROOF OF SERVICE I hereby certify that I am this day serving the foregoing document upon the persons and in the manner indicated below which service satisfies the requirements of Pa. R.C.P. 440: Service by first-class mail addressed as follows: Charles Rector, Esquire 1104 Fernwood Avenue, Suite 203 Camp Hill, PA 17011-6912 Attorney for Defendant Wilkinson Mark C. Duffle, Esquire Duffie Johnson Stewart & Weidner 301 Market Street, P.O. Box 109 Lemoyne, PA 17043 Attorneys for Defendant Clawser Theresa Barrett Male, Esquire Supreme Court # 46439 513 North Second Street Harrisburg, Pennsylvania 17101 (717) 233-3220 Counsel fOlr Plaintiffs Date: October 2, 2003 Theresa Barrett Male Supreme Court # 46439 513 North Second Street Harrisburg, PA ~.7'101 (717) 233-3220 Counsel for Plaintiffs COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DWANE E. WILKINSON and CONSTANCE S. WILKINSON Plaintiffs V= DWANE S. WILKINSON and HEATHER L. CLAWSER (formerly Wilkinson) Defendants No. 02-401';' Civil Term CIVIL ACTION ORDER OF COURT ~=,~~2~, 2003, upon consideration of Plaintiffs' AND NOW, October Motion to Strike Fee Motion from Argument Court Listing, the Court GRANTS the motion. Fees Pursuant to 42 Defendant Clawser s Motlo for Costs and Reasonable Attorneys P. S. § 2503" is stricken from the argument court list. BY THE C/( J Distribution Male Esq, 513 North Second St., Harrisburg, PA 17101 Theresa Barrett , · ..... ,,,~o ~-o,~ I ill PA 17011-6912 ,-~^-,~o ~ctor Esq, 1104 Fernwooa Ave., ~e. ~v~., ,~a,~,,rt,,,A_ .s~o iLmovne, PA 17043 ~,,o,,~o ,~,~ ... ' ~--' r~-~ie Johnson Stewart & Weianer, ~-.u. Ou^ ~-,~-,, ~ Mark C. uume, :sq., Theresa Barrett Male Supreme Cour~ # 46439 5~3 North Second Street Harrisburg, PA 17'101 (717) 233-3220 Counsel for Plaintiffs DWANE E. WILKINSON and CONSTANCE S. WILKINSON Plaintiffs COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : : : : v. : No. 02-4017 Civil Term : : : : CIVIL ACTION PLAINTIFFS' REPLY TO NEW MATTER OF DEFENDANT CLAWSER No responsive pleading is required. This paragraph states a legal conclusion to which no responsive pleading is required. To the extent that this paragraph makes factual averments, Plaintiffs specifically deny that their claim for breach of an express agreement fails under the statute of frauds. Plaintiffs therefore demand strict proof of this averment at trial. Plaintiffs admit that Plaintiff Dwane E. Wilkinson signed two "Request for Verification of Gift" forms, copies of which are attached to Defendant Clawser's Answer with New Matter. Plaintiffs specifically deny any implication that Defendant Clawser did not request, either directly or through Defendant Wilkinson, that Plaintiff Dwane E. Wilkinson sign these forms so that the defendants would be able to purchase the 36 West Coover Street property. DWANE S. WILKINSON and HEATHER L. CLAWSER (formerly Wilkinson) Defendants 40. 41. 42. Plaintiffs also deny the implication that Defendant Clawser did not sanction Plaintiff Dwane E. Wilkinson's execution of the forms. Plaintiffs therefore demand strict proof of this allegation at trial. 43. Plaintiffs admit that the Property Settlement and Separation Agreement, a copy of which is attached to Defendant Clawser's new matter, bears a date of January 4, 2000 and the signatures of both Defendants. By way of further answer, the document speaks for itself. Plaintiffs specifically deny any implication that the defendants' settlement agreement, to which Plaintiffs are not parties, controls the disposition of Plaintiffs' claim for recovery of $22,833.19 from both defendants. Plaintiffs therefore demand strict proof of this allegation at trial. 44. Plaintiffs admit that an untitled document, a copy of which is attached to Defendant Clawser's new matter, bears a date of June 2, 2000 and the signatures of both Defendants. By way of further answer, the document speaks for itself. Plaintiffs specifically deny any implication that this document, to which Plaintiffs are not parties, controls the disposition of Plaintiffs' claim for recovery of $22,833.19 from both defendants. Plaintiffs therefore demand strict proof of this allegation at trial. 45. Plaintiffs specifically deny that Plaintiff Dwane E. Wilkinson "was aware of the substance of" the defendants' settlement agreement. Plaintiffs admit that Plaintiff Dwane E. Wilkinson read the untitled document and that he witnessed Defendant Wilkinson's signature. Plaintiffs specifically deny any implication that Plaintiff Dwane E. Wilkinson's witnessing of his son's signature on the 2 amendment constitutes his endorsement of its terms. Plaintiffs therefore demand strict proof of this allegation at trial. 46. Plaintiffs specifically deny that the defendants' execution of a settlement agreement, and any amendments to that agreement, establish that the $22,833.19 advanced by Plaintiffs to the defendants was a gift. Plaintiffs therefore demand strict proof of this allegation at trial. By way of further answer, Plaintiffs are not parties to the defendants' settlement agreement. 47. Plaintiffs specifically deny that they are aLtempting to characterize the $22,833.19 advanced to the defendants as a gift in light of other litigation. Plaintiffs also deny specifically the averment that the defendants' divorce was "relatively amicable," particularly in light of Defendant Clawser's conduct both prior to and after the defendants separated. Plaintiffs therefore demand strict proof of these allegations at trial. 48. Plaintiffs specifically deny that the $22,833.19 they advanced to the defendants was a gift, which the defendants did not have to repay when the Coover Street property was sold. Plaintiffs therefore demand strict proof of this allegation at trial. Wherefore, Plaintiffs request that the Court deny.~he new matter of Defendant Clawser. ~heresa Barrett Male, Esquire Supreme Court #46439 513 North Second Street Harrisburg, PA ltl01 717-233-3220 Counsel for Plaintiffs Date: October 11, 2003 3 Oct 11 03 04:30p Connie S. Wilkinson (717) 69?-9266 p.1 VERIFICA~ON We, Dwane F_ Wilkinson and Constance S. Wilkinson, state upon personal knowledge or informaUon and belief that the averments set forth in the foregoing document are true. We undersland that. false statements heroin am made subject to the penalties of 18 Pa. C.S. § 4904, relating to unswom falsification to authorities. Dwene E. Wilkinson Date: October ~ 2003 PROOF OF SERVICE I hereby certify that I am this day serving the foregoing document upon the persons and in the manner indicated below which service satisfies the requirements of Pa. R.C.P. 440: Service by first-class mail addressed as follows: Charles Rector, Esquire 1104 Fernwood Avenue, Suite 203 Camp Hill, PA 17011-6912 Attorney for Defendant Wilkinson Mark C. Duffie, Esquire Duffie Johnson Stewart & Weidner 301 Market Street, P.O. Box 109 Lemoyne, PA 17043 Attorneys for Defendant Clawser Theresa Barrett Male, Esquire Supreme Court # 46439 513 North Second Street Harrisburg, Pennsylvania 17101 (717) 233-3220 Counsel for Plaintiffs Date: October 13, 2003 Theresa Barrett Male Supreme Court # 46439 52.3 North Second Street Harrisburg, PA 17101 (717) 233-3220 Counsel for Plaintiffs COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DWANE E. WILKINSON and CONSTANCE S. WILKINSON Plaintiffs DWANE S. WILKINSON and HEATHER L. CLAWSER (formerly Wilkinson) Defendants : No. 02~4017 Civil Term CIVIL ACTION PLAINTIFFS' PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE JUDGES OF THIS COURT: Theresa Barrett Male, Esquire, counsel for plaintiffs in this action, respectfully represents that: 1. The action is at issue. 2. The plaintiffs' claim is $22,813.19. The following attorneys are interested in the case as counsel and are otherwise disqualified to sit as arbitrators: Charles Rector, Esquire, counsel for Defendant for Wilkinson, and Mark C. Duffle, Esquire, Duffle, Johnson, Stewart and Weidner, Attorneys for Defendant Clawser. Wherefore, Plaintiffs request the Court to appoint t~'~ree (3) arbitrators to whom the case shall be submitted. Theresa Barrett Male, Esquire Supreme Court #46439 513 North Second Street Harrisburs, PA 17~_0~. 7:~7-233-3220 Counsel for' Plaintiffs Date: December 12, 2003 2 PROOF OF SERVICE I hereby certif7 that I am this day serving the foregoing document upon the persons and in the manner indicated below which service satisfies the reqcrirements of Pa. R.C.P. 440: Service by first-class mail addressed as follows: Charles Rector, Esquire 1104 Fernwood Avenue, Suite 203 Camp Hill, PA 17011-6912 Attorney for Defendant Wilkinson Mark C. Duffle, Esquire Duffie Johnson Stewart & Weidner 301 Market Street, P.O. Box 109 Lemoyne, PA 17043 Attorneys for Defendant Clawser Supreme Court # 46439 513 North Second Street Harrisburg, Pennsylvania 17101 (717) 233-3220 Counsel for Plaintiffs Date: December 15, 2003 ! 7043 Theresa Barrett Male Supreme Court # 46439 5:[3 North Second Street Harrisburg, PA 17101 (7:[7) 233-3220 Counsel for Plaintiffs COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DWANE E. WILKINSON and CONSTANCE S. WILKINSON Plaintiffs DWANE S. WILKINSON and HEATHER L. CLAWSER (formerly Wilkinson) Defendants No. 02-4017 Civil Term CIVIL ACTION AND NOW, December petition for appointment of, arbitrators, the Court ~~ ~ appoints as arbitrators: ORDER OF COURT ,2003, in consideration of Plaintiffs' , Esquire; and , Esquire, and , Esquire. Distribution BY THE COUF1T: Theresa Barrett Male, Esq., 513 North Second St., Harrisburg, PA 17101 Charles Rector, Esq., 1104 Fernwood Ave., Ste. 203, Camp Hill, PA 17011-6912 Mark C. Duffle, Esq., Duffie Johnson Stewart & Weidner, P.O. Box 109, Lemoyne, PA DWANE E. WILKINSON and CONSTANCE S. WILKINSON, Plaintiffs DWANE S. WILKINSON, and HEATHER L. CLAWSER, (formerly Wilkinson) Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-4017 CIVIL TERM CIVIL ACTION - LAW NOTICE OF HEARING BY BOARD OF ARBITRATORS YOU ARE HEREBY NOTIFIED that the Board of Arbitrators appointed by the Court in the above-captioned case will sit for the purpose of their appointment on Thursday, April 22, 2004, at 9:30 a.m. in the Second Floor Hearing Room in the Old Cumberland County Courthouse, Carlisle, Pennsylvania. Board of Arbitrators, Date: Cc~ Theresa Barrett Male, Esquire 513 North Second Street Harrisburg, PA 17101 Charles Rector, Esquire 1104 Femwood Avenue, Suite 203 Camp Hill, PA 17011 Marck C. Duffle, Esquire Duffle, Johnson, Stewart & Weidner P.O. Box 109 Lemoyne, PA 17043 David A. Lopez, Esquire 401 East Louther Street, Suite 101 Carlisle, PA 17013 Elyse E. Rogers, Esquire 415 Fallowfield Road, Suite 102 Camp Hill, PA 17011 Prothonotary Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 DWANE E. WILKINSON and · IN THE COURT OF COMMON PLEAS OF CONSTANCE S. WILKINSON : CUMBERLAND COUNTY, PENNSYLVANIA : 02-4017 CIVIL TERM DWANE S. WILKINSON and HEATHER L. CLAWSER IN RE: ARBITRATION ORDER OF COURT AND NOW, May 10, 2004, the Court having been informed that the above-captioned case has settled prior to hearing, the panel of arbitrators previously appointed is vacated, and Bradley Griffie, Esquire, Chairman of the Arbitration Panel, shall be paid the sum of $50.00. By the Court, Court Administrator Bradley L. Griffie, Esquire 200 North Hanover Street Carlisle, PA 17013 Theresa Barrett Male Supreme Court # 46439 513 North Second Street Harrisburg, PA 17101 (717) 233-3220 Counsel for Plaintiffs COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DWANE E. WILKINSON and CONSTANCE S. WILKINSON Plaintiffs DWANE S. WILKINSON and HEATHER L. CLAWSER (formerly Wilkinson) Defendants No. 02-401.7 Civil Term CIVIL ACTION PRAECIPE To the Prothonotary: Please mark this case settled and discontinued. Theresa Barrett Male, Esquire Supreme ,Court # 46439 513 North Second Street Harrisburg, Pennsylvania 17101 (717) 233-3220 Counsel for Plaintiffs Date: May 17, 2004 PROOF OF SERVICE I hereby certify that I am this day serving the foregoing document upon the persons and in the manner indicated below which service satisfies the requirements of Pa. R.C.P. 440: Service by first-class mail addressed as follows: Bradley L. Griffie, Esquire Griffie & Associates 200 North Hanover Street Carlisle, PA 17013 Arbitration Panel Chair Charles Rector, Esquire 1104 Fernwood Avenue, Suite 203 Camp Hill, PA 17011-6912 Attorney for Defendant Wilkinson Mark C. Duffle, Esquire Duffle Johnson Stewart & Weidner 301 Market Street, P.O. Box 109 Lemoyne, PA 17043 Attorneys for Defendant Clawser Theresa Barrett Male, Esquire Supreme Court # 46439 513 North Second Street Harrisburlz, Pennsylvania 17101 (717) 233-3220 Counsel fi~r Plaintiffs Date: May 17, 2004