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HomeMy WebLinkAbout95-04936 CHARLENE ROXANN MARCH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. KENNETH EUGENE MARCH : NO. 95-4936 CIVIL TERM : CIVIL ACTION - DIVORCE ORDER OF COURT AND NOW, this ~ day of MARCH, 2000, it appearing to the Court that the parties are involved in settlement negotiations, Paragraph 5 of our Order dated February 22. 2000. is amended to provide as follows: Briefs shall be filed In Chambers by the close of business on Monday, May 8, 2000. Argument shall be held In Chambers on Thursday, May II, 2000, at 8:30 a.m. In all other respects. our Order of February 22. 2000, shall remain in full force and effect. By the Co Robert L. O'Brien, Esquire For the Plaintiff Ed..... E. G:idO~ ~.~\'C>O J ~ t?J Harold S. Irwin. Ill. Esquire For the Defendant :sld KENNETH E. MARCH. II COlts of Proceeding Obtaining Subpoenas: 5 Subpoenas @ $2.00 zoa-> $ 10.00 $ 10.00 Service of Subpoenas: Rominger Legal Irving Wallace Donald Flagle, II Total $ ~OO 75.00 32.50 $ 137.50 137.50 Stenographer: Cheryl Donovan Central PA Reporting Service Central PA Reporting Service Total $ 9"'75 74.20 50.00 $ 222.95 222.95 Attorney Fees: 03/01/00 Invoice 03/11/00 Invoice 04/01/00 Invoice 04/29/00 Invoice 04/30/00 - 05/09/00 Total $ ~.OO ~.OO 538.00 543.75 237.50 $2.107.25 2.107.25 $ 2,477.70 TOTAL EXPENSES: : hllIlO"'1I'5 1XH18IT I 5tf - -... . . . , ~ . ~. "0 ~ . ~,~ I : ., .\," ~ 'i\oJ l~ fY!tiV ~ 1./ /13/.2IJo:J 'N3.V PENNSYLVANIA STATE CONSTABLE IRVING WALLACE FOR: ~o..rol~~. :[eIlJ;,"\ III A H "rM' '_' Ch LAw !:Li..~..,... ~ ( f.4~ ''^ ~ e.. :3S E. 4:~h $J.. Ca.<\....\e... ~ 1,0:' REGARDS: 'SW Q@ r"\ e 'i - J~~( M <A..r~ h REMARKS: A ~\ _'l)"~J",,,,~ "?e.cs-~...,c... \ \'1 Serv~J B 'i H)-.M AM "" C:;-&.S-CO Please Remit Fee or ; 1~.oc --. ~_ld Irving WaUace PA State Constable )~ 5 E. Louther Street, Carlisle, PA 17013 -3016 Phone ## 717-143-6778 Fax II 717-143-7937 Pager ## 717-241-7557 HAROLD S. IRWIN III UCl'IOW ACCOUNT a 36 e. HIGH ST. CARUSLE. PA 17013 717-24HOllO ORMTOWN IAHK 2989 ORRSTOWN. PENN8YLVANIA 17244 00.1503-313 J-?-/-w .S T - ("e-V] S./a.6<:'lL. (AJtt"~-C~c<.e~ - - ~'d s 7-S v I)()LU.RS f'/Il h cP 6t-u1'/O?A ~ 11"00 ~qSqU. 1:03.3. SO H,I: Ud i~ /C./U5'; --- .OS 00 ~80 ~II. NIl Central Pennsylvania Court Reporting P.O. Box 508 Carlisle, PA 17013 (717)258-3657 Harold S. Irwin, III, 35 East High Street Carlisle, PA 170113 Esquire Inv. Date Inv. No. Client# Job Ref.# 04/11/2000 5507 546 00076A Re: March, Charlene March, Kenneth Assignment Date: March 28, 2000 Mark A. Sweeney Appearance Fee - Carlisle 17.0 Pages @ 1.0 @ 44.20 30.00 2.60 30.00 ========== Total Amount $ Less Paid To Date $ Total due $ 7'1..lu 0.00 74.20 THANK YOU! Please Make Checks Payable To: Central Pennsylvania Court Reporting Federal Tax Id#: 25-1700605 CLIENT Date 4/1/00 Time 8:01 am HAROLD S IRWIN II I Client Bi1linq Worksheet MARCH,KEN KENNETH E MARCH II 14 CEDAR ST MT HOLLY SPRINGS, PA 17065 717-486-7393 717-731-7430 None No Phone 1 Phone 2 Rounding Full Precision Interest rate Last bill Last charge Last payment l8.000% 3/11/00 3/29/00 1/31/00 Amount $63.46 Date/Slip~ Descript;J91L__un_____ _____________ tlQQ8siRb'rE 3/2/00 IRWIN, HAL / LETTER ~12064 Call and letter to court reporter and Prothonotary 0.35 125.00 3/3/00 BARANSKI, JOHN / DRAFT ~l2181 Draft subpoenas 0.30 100.00 3/7/00 BARBOUR, HEATHER / FILE ~l2076 File subpoeanas and fax to O'Brien; call court reporter 0.40 65.00 3/14/00 BARANSKI, JOHN / DRAFT ~12188 Draft subpoena 0.40 lOO.OO 3/15/00 BARBOUR, HEATHER / PHONE CALL ~12095 Telephone call with client 0.20 65.00 3/16/00 BARBOUR, HEATHER / PHONE CALL ~12100 Telephone call with court reporters 0.20 65.00 3/23/00 BARANSKI, JOHN / CONFERENCE ~12202 Conference with client, draft subpoenas, certify subpoenas 0.90 lOO.OO 3/27/00 IRWIN, HAL / PHONE CALL #12054 Telephone call with client 0.20 125.00 3/27/00 BARBOUR, HEATHER / PHONE CALL ~12249 Telephone call with constable 0.20 65.00 3/28/00 IRWIN, HAL / REVIEW #12147 Preparations for depositions 0.50 125.00 paqe 62 AMOUNT TOTAL 43.75 30.00 26.00 40.00 13.00 l3.00 90.00 25.00 13.00 62.50 Date 4/1/00 Time 8: 01 am HAROLD S IRWIN III Client Billing Worksheet - :KENNETH E MARCH II (continued) Page 63 MARCH, KEN Date/Slip# DescriptJ9J'L____ _. HOURS/RATE _~MQUt::l:r __TQTAL 3/28/00 IRWIN, HAL / CONFERENCE 1. 00 l25.00 #12148 Depositions 125.00 3/29/00 IRWIN, HAL / LETTER 0.35 43.75 #12160 Letter to Judge Guido 125.00 3/29/00 BARBOUR, HEATHER / PHONE CALL 0.20 13.00 #12252 Telephone call with client 65.00 -- .__ ..----------------..--___._0_._.__-- -_.-------"- -- .- TOTAL BILLABLE TIME CHARGES 5.20 $538.00 Dat~Slipj Description QTY/PRICE; 3/24/00 IRWIN, HAL / $SUBPOENA #12043 Serve subpoenas for depositions 1 75.00 75.00 3/24/00 IRWIN, HAL / $SUBPOENA #12044 Costs for obtaining subpoenas from Prothonotary 3 2.00 6.00 TOTAL BILLABLE COSTS INTEREST on l3.00 at l8.00% (21 days since last bill) $81.00 $0.20 TOTAL NEW CHARGES $619.20 !'.RE'{tQf.!~!3.8LANC~ Current period 667.74 TOTAL PREVIOUS BALANCE TOTAL overdue $l3.00 $667.74 NEW Bf,LANq: New Current period 1,286.94 ____._ "---_0-.- . _ _n_. ~_.__ _______________ n._ TOTAL NEW BALANCE TOTAL overdue $1,286.94 $13.00 " .. .~'-. V I - ,,7./'\- ~ (...Iq.~ Date 4/29/00 Time 9:38 am MARCH,KEN' -: Phone 1 Phone 2 Rounding Full Precision Interest rate Last bill Last charge Last payment HAROLD S IRWIN III Client Bil1inq Work.beet KENNETH E MARCH II 14 CEDAR ST MT HOLLY SPRINGS, PA l7065 717-486-7393 717-73l-7430 None No 18.000% 4/2/00 4/28/00 4/6/00 Amount pate/S1i~ Description 4/6/00 IRWIN, HAL / PHONE CALL #12292 Telephone call with Atty O'Brien 4/17/00 IRWIN, HAL 1 PHONE CALL #123l3 Telephone call with constable 4/20/00 #12324 IRWIN, HAL / DRAFT Begin draft of petition to judge re sanctions and termination of alimony IRWIN, HAL 1 CONFERENCE Conference with client and waiting for Charlene March to appear for deposition 4/20/00 #12392 IRWIN, HAL 1 DRAFT Finish petition for sanctions and prepare for filing; letter to O'Brien and fax copy of petition to him 4/21/00 #12391 4/25/00 IRWIN, HAL 1 CONFERENCE #12402 Conference with client to sign verification 4/26/00 IRWIN, HAL / FILE #12468 File petition to end case $6l9.00 HOURS IRATE 0.20 125.00 0.20 l25.00 0.50 l25.00 0.50 l25.00 2.50 l25.00 0.20 125.00 0.25 125.00 paqe 1 AMOUNT TOTAL 25.00 25.00 62.50 62.50 3l2.50 25.00 31. 25 Data 4/29/00 Time 9:38 am HAROLD 5 IRWIN III Client Billing Worksheet Pag. 3 MARCH, KEN - :KENNETH E MARCH II (continued) NEWBAL~NCE New Current period 757.45 ,.c_,.,.,,-::".,-,,-,"_,~..--,- ~c--'-'--=-- TOTAL NEW BALANCE $757.45 Date 5/9/00 Time 9:07 am HAROLD S IRWIN III Client Billinq Work.heet paqe 1 MARCH, KEN Phone 1 Phone 2 Rounding Full Precision KENNETH E MARCH II 14 CEDAR ST MT HOLLY SPRINGS, PA l7065 717-486-7393 717-73l-7430 None No Interest rate Last bill Last charge Last payment l8.000% 4/29/00 5/9/00 4/6/00 Amount : $619.00 Qat~/SliR! Description HOURS/RATE AMOUNT TOTAL 5/5/00 IRWIN, HAL / LETTER #l253l Receive court order from DRO re termination of support 0.20 l25.00 25.00 5/8/00 IRWIN, HAL / PHONE CALL #l254l Telephone call with Atty Flower 0.20 l25.00 25.00 5/9/00 IRWIN, HAL / PHONE CALL #12542 Preparation for Court appearance 0.75 l25.00 93.75 5/9/00 IRWIN, HAL / COURT APPEARANC #12543 Court appearance on rule to show cause 0.75 l25.00 93.75 TOTAL BILLABLE TIME CHARGES 1. 90 $237.50 - TOTAL BILLABLE COSTS $0.00 TOTAL NEW CHARGES $237.50 PBEVIOUS BALANCE Current period 757.45 TOTAL PREVIOUS BALANCE $757.45 HAROLD S. IRWIN, III, ESQUIRE ATTORNEY ID NO. 29920 35 EAST HIGH STREET CARUSLE PA 17013 (717) 24U09O ATTORNEY FOR DEFENDANT I PETITIONER v.. I IN THI! COURT OF COMMOM PLUS OF I CUM81!RLAND COUNTY, PI!NNSVLVANIA I CIVIL ACTION. LAW CHARLI!NI! ROXANN MARCH, PI.lnutf (Re.pondent) KI!NNI!TH I!UGI!NI! MARCH, Defend.nt (Petitioner) : NO. 115 - 41138 CIVIL TI!RM I IN DIVORCI! DEFENDANT'S BRIEF IN SUPPORT OF DEFENDANT'S MOTION FOR SANCTIONS I. HISTORY OF CASE: The parties in this case separated in September. 1995 and a divorce complaint was filed by the plaintiff on September 15, 1995. Petitioner has been subject to an order for the payment of spousal support and/or alimony to respondent in the amount of $812.50 per month since at least as far back as December, 1996. The parties were divorced on November 9,1999. On or about February 22, 2000, defendant filed a petition for a rule to show cause why alimony should not be tenninated in this case due primarily to the alleged cohabitation of the plaintiff with another man. On February 22, 2000. this Court entered an order providing, inter alia, that the plaintiff file an answer to defendant's petition within 15 days of service, that depositions be completed within 35 days of service, that briefs be filed by April 7, 2000 and that counsel for the parties appear in chambers on April 10, 2000 for oral argument. Service of the Order was made on February 29, 2000, upon plaintiff's attorney of record, Robert O'Brien, Esquire, by certified mail. Counsel for both parties scheduled depositions of the plaintiff for March 8, 2000 In plaintiff's counsel's office; however, the plaintiff failed to appear for her deposition. Plaintiffs deposition was re-scheduled by counsel for both parties for March 28, 2000, at 1 :30 p.m., at defendant's counsel's office and plaintiff was formerly served by Constable Irving Wallace on March 25, 2000 with a subpoena to appear for this deposition. Plaintiff appeared at the deposition site at approximately 1 :45 p.m. on March 28. 2000, while the deposition of another witness was in progress. Plaintiff Interrupted the deposition which was underway, told the defendant and her own counsel that she did not want the defendant in her life anymore, that she no longer wanted defendant's money and that the alimony payments could be terminated. Plaintiff then left the deposition site without having given her deposition. On March 29, 2000, at Attorney O'Brien's suggestion, defendant's counsel forwarded to Attorney O'Brien a written Release, whereby. if executed by the plaintiff, all alimony payments from the defendant to the plaintiff would be terminated. Counsel's covering letter suggested that in the event that plaintiff was unwilling to execute the Release the parties should re-schedule her deposition for April 12, 2000. Counsel further indicated that if the plaintiff was unwilling to sign the release, did not appear for the deposition, did not provide answers to the written interrogatories previously forwarded to her counsel, nor filed a response to the petition for a rule to show cause (then overdue since March 15. 2000), counsel for the defendant would move for sanctions to be imposed by the Court. Defendant's counsel also requested at that time that the Court continue the briefing and argument schedule due to the possibility of settlement in this case. This request was granted by Order of Court dated March 31, 2000, extending the briefing and argument schedule to May 8, 2000 and May 11. 2000, respectively. As of April 12, 2000, counsel for defendant had received no response whatsoever from plaintiff or her counsel to the March 29, 2000 letter. Accordingly, counsel for defendant then again re-scheduled plaintiffs deposition for April 20, 2000 at defendant's counsel's office. Plaintiff was formerly served by Constable Irving Wallace on April 17 . 2000 with a subpoena to appear for this deposition. On Friday, April 14, 2000, plaintiffs counsel indicated to defendant's counsel that he had received no contact from the plaintiff since the day she verbally indicated that she no longer wished to receive alimony payments from the defendant, that he therefore did not know if she would appear and that he did not intend to attend the deposition scheduled for April 20, 2000. In fact, neither plaintiff nor her counsel appeared at the time scheduled for the deposition on April 20, 2000, although defendant, his counsel and the stenographer were present and ready to take plaintiffs deposition as scheduled. To date plaintiff has not filed a response to the petition to terminate the alimony payments, has not responded to the written interrogatories and has refused to give her deposition as she has been ordered and/or subpoenaed to do. However, in addition to continuing to make his alimony payments as required during the pendency of these proceedings, defendant has been required to spend substantial sums of money for attorney fees, costs of obtaining and serving the subpoenas and for stenographer costs. To date, these costs have included the following: Costs of Subpoenas Service of Subpoenas Stenographic Services Attorney Fees to Date Total $ 10.00 137.50 222.95 2.451.00 $2,821.45 Of those costs, $1,902.70 relate to the costs and service of subpoenas, stenographic services and attorney fees incurred for the second and third deposition scheduled for Ms. March, attendance in court on May 9, 2000 and preparation of this memorandum. The balance of the costs and fees is applicable to the first deposition only. On April 27, 2000, on motion of the defendant, this Court entered an order terminating all alimony obligations of the defendant as of April 30. 2000. The Court also entered a Rule upon the plaintiff to show cause why sanctions should not be imposed against the plaintiff for refusing to participate in these proceedings. The Rule was retumable In open court on May 9, 2000, at which time both parties appeared with counsel. Plaintiff did not contest the termination of alimony, but did object to the imposition of sanctions as requested by the defendant. The Court then provided that the defendant could file a written response to these objections with the Court by Friday, May 12, 2000. Accordingly, this memorandum is submitted by the defendant in support of his request that sanctions in the form of an award of all of his attorney fees and costs of $2,821.45, as itemized above, be imposed against the plaintiff. II. STATEMENT OF QUESTIONS PRESENTED: A. Where a party has failed to file an answer to a Rule to Show Cause within the time frame permitted by the Rule, should the relief requested in the petition be granted? Suggested Answer: YES B. When a party fails to file a written response to a Rule to Show Cause containing a court order provision for discovery. fails to provide answers to written interrogatories, fails three times to appear for depositions after being ordered to do so and after being properly served with a subpoena for the second and third scheduled deposition, and otherwise wholly fails to participate in the proceeding. may the Court award sanctions to the moving party in the form of reimbursement of the moving parties' expenses of obtaining and serving the subpoenas, paying for stenographic services and for attomey fees in the proceeding? Suggested Answer: YES III. LEGAL ARGUMENT: A. Where a party has failed to file an answer to a Rule to Show Cause within the time frame permitted by the Rule, the relief requested In the petition should be granted. The Pennsylvania Rules of Civil Procedure provide clear guidelines for the procedure to be followed after issuance of a rule to show cause. Pa.R.C.P. No. 206.7 provides that if an answer to the petition is not filed within the time allotted by the Rule, all averments of fact in the petition may be deemed admitted and the court shall enter an appropriate order (emphasis added). In the present case, defendant I petitioner filed a petition for a rule to show cause why alimony should not be terminated in this case. This Court issued a Rule upon plaintiff as requested, providing that an answer to the petition be filed within fifteen days after service upon her attomey of record. Service by certified mail upon her attorney of record was accomplished on February 29, 2000. As of April 25, 2000, no answer had been filed by the plaintiff and defendant moved - 56 days after service - that the Rule be made absolute based upon plaintiffs failure to file an answer. On April 27, 2000. the Court did enter an order terminating all alimony obligations of the defendant as of April 30, 2000. Therefore, the order terminating alimony in this case was not entered as a sanction against the plaintiff for her failure to participate in discovery. Rather, the termination of alimony in this case was properly based upon the plaintiffs failure to file a timely answer to the petition and Rule. B. When a party falls to response to a Rule to Show Cause containing a court ordered provision for discovery, falls to provide answers to written Interrogatories, falls three times to appear for depositions after being ordered to do so and after being properly served with a subpoena for the second and third . I I i scheduled deposition, and otherwise wholly falls to participate In the proceeding, the Court may award sanctions to the moving party In the form of reimbursement of the moving parties' expenses of obtaining and serving the subpoenas, paying for stenographic services and for attomey fees In the proceeding. The Pennsylvania Rules of Civil Procedure also provide clear guidelines for the imposition of sanctions against a party who fails to participate as ordered in various methods of discovery in any proceeding. Pa.R.C.P. No. 4019 provides that the Court may, on motion, make an appropriate order of sanctions if a party fails to serve answers to written interrogatories under Rule 4005. Rule 4005 and Rule 4003.1 provide that any party may serve another party with written interrogatories for discovery of any matter not privileged which is relevant to the subject matter of the proceeding. Further, Rule 4019 (a)(1 )(iv) provides that an order of sanctions may be imposed if a party. atter notice, fails to appear for depositions. Subsection (viii) of Rule 4019 (a)(1) also states that such an order of sanctions may be imposed where a party otherwise fails to make discovery or to obey an order of court respecting discovery. Lastly, subsection (c)(5) of Rule 4019 provides that the court may make such order with regard to the failure to make discovery as is just. The bottom line is these situations is that the imposition and choice of specific sanctions under Rule 4019 is largely within the discretion of the trial court. Weist v. Atlantic Richfield, _ Pa.Super. _, 543 A.2d 142 (1988); Grunde v. Huff, _ Pa.Super. _, 639 A.2d 1227 (1994). Though the Court in Grunde, Id., declined to uphold the sanctions imposed by the lower court, it did set out four factors that must be considered when imposing sanctions: .We must first examine the party's failure in light of the prejudice caused to the opposing party and whether the prejudice can be cured. A second factor to be examined in reviewing a sanction is the defaulting party's willfulness or bad faith in failing to comply with the discovery order, i.e., the merits of the excuse. Third, we consider the number of discovery violations. Repeated discovery abuses are disapproved. Finally, as noted above, the importance of the precluded evidence in light of the failure must be considered." Grunde, Id., at 1230. A review of the case at bar reveals that when considering these four factors, the imposition of sanctions as requested by the defendant are clearly justified. First, plaintiffs inaction and her failure to participate was seriously prejudicial to the defendant. Defendant believes that the sole underlying reason for the plaintiffs absolute refusal to participate in these proceedings was the desire to continue to collect alimony payments in the face of what she knew to be true - that she is cohabiting with another man and in no longer entitled to collect alimony from the defendant. Not that she admitted that at the May 9, 2000 hearing, however. During the hearing. she testified that she has no such relationship with another man. Unfortunately. by delaying any comment on the allegations that defendant has made until this hearing. she has effectively prevented the defendant from proving his allegations while the plaintiff continued to collect $812.50 per month in alimony. By proceeding in this way, the Court does not have the benefit of the testimony derived from another witness who was deposed during discovery or from other witnesses who may have been deposed, but for the plaintiffs continued refusal to participate. It is submitted that if the Court were to review the deposition testimony of Mark Sweeney, plaintiffs own brother, it will become clear that neither the plaintiff not her paramour, Jack Lang, have been completely truthful about their relationship. Likewise, a thorough examination and cross-examination of plaintiff at a deposition, the opportunity to review written answers to interrogatories, and a review of an answer to the petition all would have assisted the defendant in demonstrating not only the truth of his assertion that plaintiff is cohabiting with another man and is no longer entitled to receive alimony, but also that such cohabitation began a long time ago. If so, the request to terminate alimony could have been made retroactive to the time at which cohabitation began. Instead. the defendant was left with the ability to request termination as of April 30, 2000. Secondly, plaintiffs failure to participate and cooperate in these proceedings was willful and in bad faith. Defendant submits that the plaintiff, though she did finally appear as directed for the May 9, 2000 hearing regarding the request for sanctions, she failed to provide any satisfactory reason for her failure to cooperate or to participate in any way with these proceedings. At the hearing on May 9, 2000, plaintiffs new counsel stated that the plaintiff did not participate in these proceedings because she did not understand the legal language in the Court documents and because she was suffering was various physical impairments. However, defendant contends that plaintiffs refusal to cooperate or participate was not bome out any confusion as to the meaning of the legal language in these documents. She has been represented by competent counsel throughout these proceedings. Nor was it the result of any physical impairments from which she may suffer. Such impairments certainly did not prevent her from showing up at the second deposition, but leaving without being deposed. Neither did they prevent her from appearing in Court on May 9th. Furthermore, such a contention cannot be given any credibility in any event after two and half months of total silence. Lastly. plaintiffs failure to provide discovery was repeated. Plaintiff did not submit herself to depositions as required by this Court's order of February 22, 2000, as arranged with her counsel the first time and as subpoenaed by defendant's counsel for two subsequent dates. She failed to respond to written interrogatories properly submitted to her and her counsel. She refused to execute a release after stating her verbal assent to the termination of alimony. She failed to cooperate with her own counsel to the point where he was compelled to petition the Court for leave to withdraw as her counsel. Plaintiff failed even to file an answer to the petition for termination of the alimony payments. The Court provided a discovery forum for the plaintiff to provide testimony to disprove the allegations of the defendant without unnecessarily taking up the time of this Court. Instead, plaintiffs failure to comply with the discovery process resulted in the Court actually taking her testimony in open Court, contravening one of the very purposes for the discovery order. At the May 9, 2000 hearing, plaintiffs counsel argued that Rule No. 4019 of the Pennsylvania Rules of Civil procedure requires that before the Court can issue sanctions it must first enter an Order compelling compliance with discovery. This is incorrect. Weist, supra, at 145. As in Weist, in this case the lack of a specific order compelling appearance at a deposition prior to the entry of sanction for nonappearance is inconsequential due to a valid court order directing that depositions be accomplished within 35 days after service of the Rule upon plaintiffs attomey of record. Likewise, as in Weist, the plaintiff failed to appear for depositions not once, but repeatedly so after being served with the order directing discovery - once upon notice by her attomey and twice after being served with subpoenas at defendant's expense. Finally, the Court in Weist in upholding the sanctions found that the non-cooperating party greatly hampered the opposing party's entire case by willfully disregarding opposing counsel's requests and an order of Court, just as plaintiffs performance in this case has demonstrated. In Commercial Tradina Co. v. Milsan Mills. Inc., _ Pa. Super. _, 476 A.2d 16, at 20 - 21 (1984), a case in which attomey fees were denied as a sanction, the Superior Court still held that there is authority in the provisions of Pa. R.C.P. No. 4019 (a)(1) for an award of general counsel fees even for non-discovery related matters. provided the .punishment fits the crime". Defendant's present request for an award of counsel fees and expenses is the only sanction that can be imposed in this case. it does fit the crime and is an amount which is most likely less than the amount to which he would have been entitled had he been able to obtain a retroactive termination of alimony in this case. The plaintiff has made a mockery of the discovery process and her actions should not go unchallenged. The defendant has made months and months of alimony payments to the plaintiff that were not disserved. He has also had to spend over $2,800.00 in additional funds of his to attempt to prove plaintiffs lack of entitlement to these payments. The plaintiff has frustrated all attempts to gain appropriate access to testimony and other information bearing on her entitlement to alimony so that sufficient facts to base a retroactive order cannot be made. Defendant submits that an order of sanctions requiring plaintiff to reimburse only all of his costs in this proceeding is certainly justified. IV. CONCLUSION: For the reasons set forth above, defendant submits that the Court would be justified in making its termination of alimony in this case retroactive at least to the date of the petition, in addition to awarding sanctions against the plaintiff. At a minimum, however, defendant restates his request for sanctions only. Under the circumstances of this case, defendant believes that such sanctions should be for his total costs and fees of $2,821.45. HAROLD S. IRWIN, III Attorney for Defenda t May 12, 2000 35 East High Street Carlisle, PA 17013 (717) 243-6090 Supreme Court 10 No. 29920 CERTIFICATE OF SERVICE I, Harold S. Irwin, III, Esquire, have served a true and correct copy of Defendant's Brief In Support of Defendant's Motion for Sanctions upon the following person and In the matter indicated: HAND DELIVERY TO PLAINTIFF'S COUNSEL: THOMAS FLOWER. ESQUIRE 11 EAST HIGH STREET CARLISLE, PA 17013 HAROLD S. IRWIN, III Attorney For Defendan 35 East High Street Carlisle, Pennsylvania 17013 717.243-6090 Supreme Court I.D. No. 29920 May 12, 2000 .. ~ .. CHARLENE ROXANN MARCH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY. PENNSYLVANIA V. KENNETH EUGENE MARCH NO. 95-4936 CIVIL TERM : CIVIL ACTION - DIVORCE ORDER OF COURT AND NOW. this ~ day of APRIL. 2000. Defendant's obligation to make alimony payments to the plaintiff is hereby terminated. effective April 30. 2000. The Domestic Relations Section is directed to terminate all collection activity against the defendant as of that date. In addition. a Rule is issued upon plaintiff to Show Cause why sanctions, including costs and attorney fees incurred by defendant in prosecuting this proceeding. should not be imposed. Rule returnable on TuesdllY. l\1Qy 9. 2000. at 10:30 a.m.. Courtroom #5. Robert L. O'Brien, Esquire BYI~ Edward E. Guido. J. (~)2lW) /~~J:j '/'.-:2:$'.I() R....3 Charlene R. March I Wilbert Drive Carlisle, Pa. 17013 Harold S. Irwin, III, Esquire For the Defendant :sld .. -", . CHARLENE ROXANN MARCH, Plaintiff : IN THE COURT Of COMMON PLUS Of : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION. LAW v.. KENNeTH EUGENE MARCH, Defendant : NO. 95 - 4936 CIVIL TERM : IN DIVORCE PETITION FOR SANCTIONS AND TERMINATION OF ALIMONY NOW comes Harold S. Irwin, III, Esquire, attorney for defendant, and presents this petition, representing as follows: 1. Petitioner is Kenneth Eugene March, defendant in this action, an adult individual residing at 14 Cedar Street, Mt. Holly Springs, Cumberland County, Pennsylvania 17065. 2. Respondent is Charlene Roxann March, plaintiff in this action, is an adult individual whom petitioner believes and therefore avers is residing at 1 Wilbert Drive, Carlisle, Cumberland County, Pennsylvania 17013. 3. The parties separated in September, 1995 and a divorce complaint was filed by the plaintiff on September 15, 1995. 4. Petitioner has been subject to an order for the payment of spousal support and/or alimony to respondent in the amount of $812.50 per month since at least as far back as December, 1996. The parties were divorced on November 9,1999. ,. ~ 5. On , 2000, defendant filed a petition for a rule to show cause why alimony should not be terminated in this case due primarily to the alleged cohabitation of the plaintiff with another man. A copy of the petition is attached hereto as Exhibit "A" and incorporated herein by reference. 6. On February 22, 2000, this Court entered an order providing, inter alia, that the plaintiff file an answer to defendant's petition within 15 days of service, that depositions be completed within 35 days of service, that briefs be filed by April 7, 2000 and that counsel for the parties appear in chambers on April 1 0, 2000 for oral argument. A copy of the order is attached hereto as Exhibit "B" and incorporated herein by reference. 7. Service of the Order was made upon plaintiffs attorney of record, Robert O'Brien, Esquire, by certified mail, on February 29, 2000. A copy of the signed receipt is attached hereto as Exhibit "C" and incorporated herein by reference. 8. Counsel for both parties scheduled depositions of the plaintiff for March 8, 2000 in plaintiffs counsel's office; however, the plaintiff failed to appear for her deposition. 9. Plaintiffs deposition was re-scheduled by counsel for both parties for March 28, 2000, at 1 :30 p.m., at defendant's counsel's office and plaintiff was formerly served by Constable Irving Wallace on March 25, 2000 with a subpoena to appear for this deposition. A copy of the subpoena and the return of service are attached hereto as Exhibit "D" and incorporated herein by reference. 10. Plaintiff appeared at the deposition site at approximately 1:45 p.m. on March 28, 2000, while the deposition of another witness was in progress. Plaintiff interrupted the deposition which was underway, told the defendant and her own counsel that she did not want the defendant in her life anymore, that she no longer wanted .. ... defendant's money and that the alimony payments could be terminated. Plaintiff then left the deposition site without having given her deposition. 11. On March 29, 2000, at Attorney O'Brien's suggestion, defendant's counsel forwarded to Attorney O'Brien a written Release, whereby, if executed by the plaintiff, all alimony payments from the defendant to the plaintiff would be terminated. Counsel's covering letter suggested that in the event that plaintiff was unwilling to execute the Release the parties should re-schedule her deposition for April 12, 2000. Counsel further indicated that if the plaintiff was unwilling to sign the release, did not appear for the deposition, did not provide answers to the written interrogatories previously forwarded to her counsel, nor filed a response to the petition for a rule to show cause (then overdue since March 15, 2000), counsel for the defendant would move for sanctions to by imposed by the Court. A copy of the Release and covering letter are attached hereto as Exhibit "E" and incorporated herein by reference. 12. Defendant's counsel also requested at that time that the Court continue the briefing and argument schedule due to the possibility of settlement in this case. This request was granted by Order of Court dated March 31, 2000, extending the briefing and argument scheuule to May 8, 2000 and May 11, 2000, respectively. A copy of which is attached hereto as Exhibit "F" and incorporated herein by reference. 13. As of April 12, 2000, counsel for defendant had received no response whatsoever from plaintiff or her counsel to the March 29, 2000 letter attached as Exhibit WE". 14. Counsel for defendant then re.scheduled plaintiffs deposition for April 20, 2000 at defendant's counsel's office and plaintiff was formerly served by Constable Irving Wallace on April 17 , 2000 with a subpoena to appear for this deposition. A copy of the subpoena and the return of service are attached hereto as Exhibit "G" and incorporated herein by reference. ... .. 15. On Friday, April 14, 2000, plaintiffs c<;lunsel indicated to defendant's counsel that he had received no contact from the plaintiff since the day she verbally indicated that she no longer wished to receive alimony payments from the defendant, that he therefore did not know if she would appear and that he did not intend to attend the deposition scheduled for April 20, 2000. 16. Neither plaintiff nor her counsel appeared at the time scheduled for the deposition on April 20, 2000, although defendant, his counsel and the stenographer were present and ready to take plaintiffs deposition as scheduled. 17. To date plaintiff has not filed a response to the petition to terminate the alimony payments. has not responded to the written interrogatories and has refused to give her deposition as she has been ordered and/or subpoenaed to do. 18. In addition to continuing to make his alimony payments as required during the pendency of these proceedings, defendant has been required to spend substantial sums of money for attorney fees, costs of obtaining and serving the subpoenas and for stenographer costs. To date, these costs have included the following: Costs of Subpoenas Service of Subpoenas Stenographic Services Attorney Fees to Date Total $ 12.00 162.50 98.75 1.564.49 $1.837.74, plus as yet unbilled costs for stenographic services for the March 28, 2000 and April 20,2000 depositions. 19. Due to plaintiffs intentional and long standing refusal to cooperate with the process in this case, her refusal to file a written response to the petition to terminate alimony as required by order of Court. her refusal to file written responses to the interrogatories served upon her counsel and her refusal to appear for and provide her deposition in this proceeding after proper service upon her of subpoenas ordering her to .. .. do so, plaintiff should be made subject to sanctions, in that she should be required to reimburse defendant for his costs in this proceeding as itemized above. 20. Furthermore, due to the above facts and defendant's stated position, in the presence of her counsel. that she no longer wished to receive alimony payments from the defendant. defendant believes and therefore avers that his request for the termination of the alimony order now in effect should be granted without the necessity of filing a brief. appearing for argument before the Court as scheduled or any additional proceedings. 21. A facsimile copy of this petition was provided to plaintiffs counsel by defendant's counsel on Friday, April 21, 2000, together with a covering letter indicating that this petition would be filed on Tuesday, April 25, 2000. unless defendant's counsel received some indication from plaintiffs counsel by the close of business on April 24, 2000 that plaintiff intended to immediately comply with the order to file a written response to the petition, file answers to the interrogatories and make plaintiff available for depositions. April 25, 2000 22. As of this date, no response has been received from plaintiffs counsel. WHEREFORE. petitioner requests your Honorable Court to make the rule issued by the Court absolute. enter an order terminating alimony in this action, effective April 30, 2000. and direct the plaintiff to reimburse defendant's costs and fees for this proceeding as itemized above, and such other relief as the Court may deem appropriate. ( · d /"\JL.t'7l ' / HAROLD S, IR IN, III Attorney for pet ooer 35 East High Stree Carlisle, PA 17013 (717) 243-6090 " ". EXHIBIT "A" ~ .. . CHARLENE ROXANN MARCH, Plaintiff : IN THE COURT OF COMMON PLUS Of : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION. LAW : : NO. IS - 4936 CIVIL TERM v.. KENNETH EUGENE MARCH, Defendant : IN DIVORCE PETITION FOR RULE TO SHOW CAUSE NOW comes Harold S. Irwin, III. Esquire. attorney for defendant, and presents this petition for a rule to show cause. representing as follows: 1. Petitioner is Kenneth Eugene March, defendant in this action. an adult individual residing at 14 Cedar Street, Mt. Holly Springs. Cumberland County. Pennsylvania 17065. 2. Respondent is Charlene Roxann March. plaintiff in this action. is an adult individual whom petitioner believes and therefore avers is residing at 1 Wilbert Drive. Carlisle, Cumberland County, Pennsylvania 17013. 3. The parties separated in September, 1995 and a divorce complaint was filed by the plaintiff on September 15, 1995. 4. Petitioner has been subject to an order for the payment of alimony to respondent in the amount of $812.50 per month since at least as far back as December, 1996. , 5. After it became apparent that the parties were not going to be able to resolve their various economic claims amicably, defendant requested that the Master be appointed to do so. 6. During the Master's handling of this matter, defendant filed written interrogatories directed to the plaintiff, a significant portion of which were related to defendant's belief that plaintiff was cohabiting with another man and the effect that cohabitation may have upon defendant's obligation to continue to pay spousal support or alimony to the plaintiff. 7. Neither plaintiff nor her counsel responded to the written interrogatories. 8. Following various proceedings before the Cumberland County Divorce Master, E. Robert Elicker, Esquire, the parties entered into an agreement on September 28, 1999 to resolve the economic claims of the parties. 9. Said agreement, a copy of which is incorporated herein by reference and attached hereto as Exhibit 'A", included, inter alia, a provision that defendant would continue to pay alimony to the plaintiff in the amount of $812.50 per month, subject to a change of circumstances of the parties, and contemplated that following the entry of a divorce decree defendant would have the opportunity to seek termination of alimony payments to the plaintiff based upon defendant's belief that the plaintiff is cohabiting with another man (see numbered paragraphs 6, 7 and 8 of Exhibit 'A"). 10. The parties were divorced by Decree of this Court on November 9, 1999. 11. The law of this Commonwealth provides that the obligation to pay alimony may be terminated where it is found that the obligee is cohabiting with a person of the opposite sex. . 12. Defendant believes and therefore avers that the plaintiff has been cohabiting with another man, namely, Jack Lortz, Jr., also known as Jack Lang, since long before the final divorce of the parties was entered. 13. The defendant believes and therefore avers that plaintiff and this individual previously resided together in Perry County, but now reside in North Middleton Township, Cumberland County, Pennsylvania, at the address listed in paragraph two above. 14. Defendant believes and therefore avers that the plaintiff and this individual purchased a mobile home from Larry Bollinger, titled it in joint names with each other and in October, 1999, received a joint school real estate tax bill from Robin Sollenberger, tax collector for the township. 15. Defendant believes and therefore avers that upon further proceedings, including discovery and/or a hearing to be held on this matter, additional facts will be available to document the belief and allegation of the defendant that plaintiff is cohabiting with another man and is therefore no longer entitled to receive alimony from the defendant. WHEREFORE, petitioner requests your Honorable Court to enter a rule upon the respondent to show cause why the alimony order in this action should not be terminated. February ,2000 HAROLD S. IRWIN, III Attorney for petItioner 35 East HIgh Street Carlisle, PA 17013 (717) 243~090 Supreme Court ID No, 29920 \ ., ~"~..~." . . ,,'" ." , +-i~, ", '.,.\.' ~..4....'..\...,~'_......" .M(..c;:a~:, ..,.1., ~,_, ...~...I~.... . ~.:.; 'i't'V- ~ ........... ~p., CHARLENE ROXANN MARCH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. KENNETH EUGENE MARCH NO. 95-4936 CIVIL TERM CIVIL ACTION - DIVORCE ORDER OF COURT AND NOW, this ~ day of February, 2000, upon consideration of the foregoing Petition for Rule to Show Cause, IT IS ORDERED AND DIRECTED AS FOLLOWS: (1) A Rule is issued against Plaintiff to show cause why Defendant'S request that his alimony obligation b~ terminated should not be granted. (2) Plaintiff shall file an answer to the Motion within fifteen (15) days of service. ~31 Th~ Motion shall be decided u~de~ Pa. Rule of Civil Procedure 206.7. (4) Any depositions shall be completed within thirty-five (35) days of service. (5) Briefs shall be filed in Chambers by the close of business on Friday. April 7. 2000. Argument shall be held in Chambers on Monday. Anril 10. 2000. at 8:30 a.m. (6) Notice of the entry of this order along with a copy of the Petition shall be provided to all parties by counsel for Defendant/Petitioner. '-" .-,. ..-11...1.,,:'/.... a . ". . LAW o,.,.,a. 01' HAROLD S. IRWIN, III ATTORNEY.AT.LAW HAROLD S. IRWIN. III JOHN J. BARANSKI. JR. HITNER HOUSE, SUITES 201 and 202 35 EAST HIGH STREET CARLISLE, PENNSYLVANIA 17013 HEATHER A. BARBOUR GAY L. IRWIN P'RALEVAlS www.canpann.comlirwin/ a-mail: irwiniaW@ap;K.nat 717-243-6090 PHONE 717.243-9200 F'ACSlMILE February 26, 2000 ROBERT L OBRIEN ESQ OBRIEN BARIC & SCHERER 17 W SOUTH ST CARLISLE PA 17013 RE: March v. March No. 95 . 4936 Civil Term Dear Rob: Enclosed for service upon you as attorney of record for Charlene Roxann March is a petition for a rule to show cause why Mr. March's alimony obligations should not be terminated due to the cohabitation of Ms. March with another man. Attached to my petition is a copy of Judge Guido's order requiring the depositions be completed within 35 days of service and briefs to be filed by April 7, 2000. Argument is scheduled for April 10 in Judge Guido's chambers. In accordance with this schedule, I would like to schedule the deposition of your client and her "boyfriend". I will be out of the office from March 15 through March 25. Therefore, I would prefer to hold these depositions prior to March 15th so that we both have adequate time to prepare our briefs. Please provide me with a date or two prior to the 15'" when you and your clients are available. We continue to believe that our position is solid in this case, but remain cpen to discussing the possibility of settlement. I believe that I could convince Ken to try to come up with a lump sum settlement of $5,000, but I am not sure that he would agree or that I would recommend anything more than that. Harold S. IrwIn, III KENNETH E MARCH i SENDER: it 0 C~.ltems 1 ~Of 2 !of addIboNI MfV1(t1. ~ CompIet. lems 3. 410. and 4b. ~ C Pnrc yournatnllll'ld addresl on thI r...-.rH 0I1tltt Iotm to INI... CM'I ttt\.Im hi ~ car.f to you. ~ 0 AQ.Ich Itlil form 10 ftIe front 01 rhllNlIpteee, Of on IhI NdI "1PKe don noI . pemut. :: QWnte oR"",," FI<<eIpt ~.on me mIIIP<<' below the attIde ~ C 0 The Relum RICeClt .. snow to IlIhOm !hi artIde was dIkvettd II'Id !he dIIe 0- i 3. Amele Addressed 10: 1?D?>f.~ O~ [~ 8 II u)~ S~ sr. C-A1eLl su:-.- ~ /70 13 I also willi to toc.... Iho 10l1ow. ing .8MC.. (lor an 111'.'''' 1 0 Add,.,"', Add,... 2. D R..~lcled Delivery . ~ > ~ ~ ~ 4a. Antele Nt.mber -z...3 4D. SeMee Type D RlglSllted D expres. Mell etum RlCllPt tor Mtf'CNlfOH < ~ Ii " , ! ~rtJlled D InlUred DCOD . . ; f - ~ o .. J! '02~ lJ9.8-G:ln OomeIUC Aeturn Rleelpl . '. .........., . . .'woi"'T,~., - . COII_~I.lLTH OP Pllltl8YLVANIA COUNTY OP CU...RUtlD .o\.....J.~..~:.~' _' : . '" ~ol',. " , KENNBTH A, MARCH PI.lntlff : CIVIL ACTION. LAW : NO, 95 . 4936 CIVIL TERM y, , , : Divorce CHARLENE A, MARCH Defend.nt . , . , SUBPOENA TO ATTEND AND TESTIFY u.-A.,.i<J /1'/,- (L<I._"I- jt<.),/I;;u-/ (}r, Vl: To: CHARLENE A, MARCH ~V'Vl\4 Cv,,11 S& 1. You are ordered by the Court to come to the Law Office of Harold S. Irwin, III, 35 East High Street, Suite 201, Carlisle, Pennsylvania on the 28th day of March, 2000 at 1 :30 p.m. to give sworn testimony in the above case and to remain until excused. 2. And bring with you the following: If you fail to appear or to produce the documents or things required by this subpoena, you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure, including but not limited to costs, attomets fees, and imprisonment. ,/?' / Requested by: John , aranskl, Jr, 35 t High Street, Suite 201/202 Carlisi., PA 17013 (717) 243-6090 Attorney 10 # 82585 BY THE COURT, Date: IJ.~.L.- .L ~ ~v . By ~ LL-- () /J,I"':LJ ~ ~,,--4; ProthonotarY " >t" , .. . .-- On the -z... :. day of Jllllru-t. , '2 <'U" (name of person served) c: t4 II /lllt'/f K 11, P/1 L h (describe method of service): , I, f Ill/IIU: k t.;upc--, served with the foregoing subpoena by /I J-h,tJ tJ //, I vi$' rJ I verify that the statements in this return of service are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. 4904 relating to unsworn falsification to authorities. 90--Je.. Date: ~.. "'2 ,-- 0 '" , . .f , , . I . EXHIBIT "E" . " . . ., LAW OFFICES OF HAROLD S. 'RWIN, II' ATTORNEY-AT.LAW HAROLD S. IRWIN. III JOHN J. BARANSKI. JR HITNER HOUSE, SUITES 201 and 202 35 EAST HIGH STREET CARLISLE, PENNSYLVANIA 17013 HEATHER A. BARBOUR GAY L. IRWIN P.utAlEGAlS www.cenpenn.com/irwin/ e-mail: irwinlaW@epix.net 717.243-6090 PHONE 717.243-9200 ~ ACSIMllE March 29, 2000 ROBERT L OBRIEN ESQ OBRIEN BARIC & SCHERER 17 W SOUTH ST CARLISLE PA 17013 RE: March v, March No. 95 .4936 Civil Term Dear Rob: Enclosed is a release which I have drafted for Charlene March to sign. Please forward this to her as soon as possible. Since you have had difficulty communicating with Charlene in the past, I suggest we re-schedule a deposition date for her within two weeks, say April 12, 2000, at 2:00 p.m. If this date is good for you, please let me know and I will obtain a stenographer and have Charlene served with another subpoena. You may inform her, however, that if she executes this release prior to that date we will not insist un her being present for a deposition. At this point, I will also indicate that if she neither signs the release nor appears for her deposition, provides the answers to written interrogatories previously forwarded to you or files response to the petition as provided in Judge Guido's order by April 12, 2000, I will then move for sanctions to be imposed by the Court. In this case, I believe that the appropriate sanctions, at a minimum, should be immediate termination of the alimony payments. KENNETH E MARCH 14 CEDAR IT MT HalLY SPRINGS PA 17015 . '. . . .t . va, : IN THE COURT Of COMMON PLUS Of : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION. LAW CHARLENE ROXANN MARCH, Plaintiff KENNETH EUGENE MARCH, Defendant NO. 95 - 4936 CIVIL TERM IN DIVORCE RELEASE KNOW ALL MEN BY THESE PRESENTS, that I, CHARLENE ROXANN MARCH, of North Middleton Township, Cumberland County, Pennsylvania, for myself, my heirs and assigns, in consideration of the spousal support and alimony heretofore paid to me by the defendant, KENNETH EUGENE MARCH, pursuant to a prior Order of Court, and in light of the defendant's petition to terminate alimony thereunder, agree to and do hereby release and forever discharge the defendant, KENNETH EUGENE MARCH, of and from any and all manner of actions, causes of action, suits, debts, judgments. obligations, liabilities, and all other claims and demands of any nature whatsoever, whether in law or in equity, which against the said defendant, his heirs and assigns, I in any capacity ever had, now have, or which I, my heirs and assigns. hereafter can, shall or may have, for, or by reason of any cause, matter or thing whatsoever, against the defendant arising from our marriage, including without limitation all claims for spousal support or alimony for any period after March 31, 2000, as well as all matters contained in a certain support matter filed to Docket Number 474 S 96 and PACSES Case Number 332000034, Cumberland County Court of Common Pleas. I acknowledge that this Release is intended to be and does constitute a complete and full release of any and all such claims whatsoever which I might otherwise have or assert, now or in the future, against the defendant in connection with or arising from said matters. I acknowledge that this release constitutes a full and final settlement of all such claims and agree not to make any such claims in the future. This Release is a settlement and compromise of a disputed claim and shall never be treated as an admission of liability by any party for any purpose. . " . . .... The parties hereby declare that they have both had the benefit of independent advise of counsel, and the terms of this Release have been completely read and are fully understood and voluntarily accepted for the purpose of makin9 a full and final compromise adjustment and settlement of any and all claims disputed or otherwise, on account of the matters set forth above. In executing this release, the plaintiff has been represented by Robert O'Brien, Esquire, and the defendant has been represented by Harold S. Irwin, III, Esquire. IN WITNESS WHEREOF, and intending to be legally bound hereby, the plaintiff has caused this Release to be executed and delivered on this the day of , 2000. WITNESS: (SEAL) CHARLENE ROXANN MARCH COMMONWEALTH OF PENNSYLVANIA ) COUNTY OF CUMBERLAND )SS: ) On this, the day of , 2000, before me, a Notary Public, the undersigned officer, personally appeared CHARLENE ROXANN MARCH, who acknowledged that she executed the foregoing Release for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. Notary Public . . . I' I I . I . EXHIBIT "F" .\ " . .. . . " CHARLENE ROXANN MARCH : IN TIlE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. KENNETH EUGENE MARCH : NO. 95-4936 CIVIL TERM : CIVIL ACTION - DIVORCE ORnRR OF COURT AND NOW, this ~ day of MARCH, 2000, it appearing to the Court that the partics arc involved in settlement negotiations, Paragraph 5 of our Order dated February 22, 2000, is Btnl:llded to provide as follows: Briefs shall be filed in Chamben by the close of busiDess 011 MODday, May 8, 2000. Argument shall be held in Chambers OD Thunday, May II, 2000, at 8:30 Lm. In all other respects, OUf Order of Febnwy 22, 2000, shall remain in full force and effect. Edward E. Guido, J. Roben L. O'BriCll, Esquire For the Plaintiff Harold S. Irwin, Ill, Eaquirc For the Defendant :sld . .. I . .. 1 EXHIBIT "0" .\ " '. . COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND . ., KENNETH A. MARCH Plaintiff : CIVIL ACTION. LAW : NO. 95 . 4936 CIVIL TERM v. . . : DIvorce CHARLENE A. MARCH Defendant . . . . SUBPOENA TO ATTEND AND TESTIFY To: CHARLENE A, MARCH {Tr""b- f!vud) J tAl 0'/ IJt:d /) r".Jl:. Ctl'/IS~ f',I1/7(/f3 I 1. You are ordered by the Court to come to the Law Office of Harold S. Irwin, III, 35 East High Street, Suite 201, Carlisle, Pennsylvania on the 20th day of April, 2000 at 1 :00 p.m. to give sworn testimony in the above case and to remain until excused. . 2. And bring with you the following: If you fail to appear or to produce the documents or things required by this subpoena, you may be subject to the sanctions authorized by Rule 234 of the Pennsylvania Rules of Civil Procedure, including but not limited to ey s fees, and imprisonment. Requested by: ~ Jo J. Baran I, Jr. 35 East High Street, Suite 201/202 Carlisle, PA 17013 (717) 243-6090 Attorney 10 # 82585 BY THE COURT, Date: CI1>"LO t?}II, CiOOD By . . . .. .' . v, : IN THE COURT OF COMMQN PLEAS : OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION. LAW KENNETH A, MARCH, Plaintiff CHARLENE A, MARCH, Defendant : NO. 95-4936 CIVIL TERM NOTICE OF DEPOSITION TO: CHARLENE A. MARCH ONE WILBERT DRIVE CARLISLE, PA 17013 YOU ARE HEREBY NOTIFIED, pursuant to Pa.R.C.P., Rule 7007.1, that the Plaintiff, Kenneth A. March, by his attorney, Harold S. Irwin, III, will take the deposition of the defendant, Charlene A. March, on Wednesday, April 20th at 1:00 P,M. The deposition will commence at that time and will continue from day to day until complete. The deposition will be taken at Harold S, IrwIn, III Law Offices, 35 East High Street, Suite 202, Carlisle, Pennsylvania before a Notary Public or other person authorized i') 1dminister oaths for the purpose (If discovery and/or use at trial. The Defendant is requested to appear at the above time and place and submit to examination under oath on all relevant material to the subject matter of the above action. DATE: '; It" ,2000 JOH . BARANKSI, JR., ESQUIRE IRWIN LAW OFFICE ATTORNEY ID NO, 82585 35 EAST HIGH ST CARLISLE PA 17013 (717) 243-6090 cc Robert L. O'Brien, EsquIre ,. , . By the Court, ~ Robert L. O'Brien, Esquire For the Plaintiff Edward E. Guido, Judge ~~ .2-.23-00 ~Kg Harold S. Irwin, III, Esquire For the Defendant/Petitioner :sld . . HAROLD I. IRWIN, III, ESQUIRE ATTORNEY ID NO. 21820 35 EAST HIGH ITREET CARLISLE PA 17013 (717) 24UOH ATTORNEY FOR DEFENDANT CHARLENE ROXANN MARCH, PI81ntlff v.. : IN THE COURT Of COMMON PLEAS Of : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION. LAW KENNETH EUGENE MARCH, Defandant NO. 85 - 4838 CIVIL TERM IN DIVORCE ORDER OF COURT NOW, this day of February, 2000, on petition of Harold S. Irwin, III, Esquire, attorney for defendant, a rule is hereby issued upon plaintiff to show cause why alimony payments by the defendant to the plaintiff should not be terminated. Rule returnable days after service upon plaintiffs counsel of record, Robert L. O'Brien, Esquire, by certified mail. By the Court, J. CHARLENE ROXANN MARCH, Plaintiff v.. I IN THE COURT Of COMMON PLUS Of I CUMBERLAND COUNTY, PENNSYLVANIA I CIVIL ACTION. LAW KENNeTH EUGENE MARCH, Defandant : NO, IS - 4936 CIVIL TERM : : IN DIVORCE PETITION FOR RULE TO SHOW CAUSE NOW comes Harold S. Irwin, III, Esquire, attorney for defendant, and presents this petition for a rule to show cause, representing as follows: 1. Petitioner is Kenneth Eugene March, defendant in this action, an adult individual residing at 14 Cedar Street, Mt. Holly Springs, Cumberland County, Pennsylvania 17065. 2. Respondent is Charlene Roxann March, plaintiff in this action, is an adult individual whom petitioner believes and therefore avers is residing at 1 Wilbert Drive, Carlisle, Cumberland County, Pennsylvania 17013. 3. The parties separated in September, 1995 and a divorce complaint was filed by the plaintiff on September 15. 1995. 4. Petitioner has been subject to an order for the payment of alimony to respondent in the amount of $812.50 per month since at least as far back as December, 1996. 5. After it became apparent that the parties were not going to be able to resolve their various economic claims amicably, defendant requested that the Master be appointed to do so. 6. During the Master's handling of this matter, defendant filed written interrogatories directed to the plaintiff, a significant portion of which were related to defendant's belief that plaintiff was cohabiting with another man and the effect that cohabitation may have upon defendant's obligation to continue to pay spousal support or aiimony to the plaintiff. 7. Neither plaintiff nor her counsel responded to the written interrogatories. 8. Following various proceedings before the Cumberland County Divorce Master, E. Robert Elicker, Esquire, the parties entered into an agreement on September 28, 1999 to resolve the economic claims of the parties. 9. Said agreement, a copy of which is incorporated herein by reference and attached hereto as Exhibit "A", included, inter alia, a provision that defendant would continue to pay alimony to the plaintiff in the amount of $812.50 per month, subject to a change of circumstances of the parties, and contemplated that following the entry of a divorce decree defendant would have the opportunity to seek termination of alimony payments to the plaintiff based upon defendant's belief that the plaintiff is cohabiting with another man (see numbered paragraphs 6, 7 and 8 of Exhibit "A"). 10. The parties were divorced by Decree of this Court on November 9, 1999. 11. The law of this Commonwealth provides that the obligation to pay alimony may be terminated where it is found that the obligee is COhabiting with a person of the opposite sex. . 12. Defendant believes and therefore avers that the plaintiff has been cohabiting with another man, namely, Jack Lortz, Jr., also known as Jack Lang, since long before the final divorce of the parties was entered. 13. The defendant believes and therefore avers that plaintiff and this individual previously resided together in Perry County, but now reside in North Middleton Township, Cumberland County, Pennsylvania, at the address listed in paragraph two above. 14. Defendant believes and therefore avers that the plaintiff and this individual purchased a mobile home from Larry Bollinger, titled it in joint names with each other and in October, 1999, received a joint school real estate tax bill from Robin Sollenberger, tax collector for the township. 15. Defendant believes and therefore avers that upon further proceedings, including discovery and/or a hearing to be held on this matter, additional facts will be available to document the belief and allegation of the defendant that plaintiff is cohabiting with another man and Is therefore no longer entitled to receive alimony from the defendant. WHEREFORE, petitioner requests your Honorable Court to enter a rule upon the respondent to show cause why the alimony order in this action should not be terminated. February II , 2000 t!1vs3 35 East High Street CarlIsle, PA 17013 (717) 243-6090 Supreme Court 10 No, 29920 , VERIFICATION The facts contained in the foregoing petition are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S.A. Section 4094, relating to unsworn falsification to authorities. February .:t.., 2000 ~JJt ~~f rfJoAtt KENNETH EUGEN ARCH Defendant and Petitioner CHARLENE ROXANN MARCH, Plaintiff v. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW KENNETH EUGENE MARCH, Defendant NO. 95-4936 : IN DIVORCE CIVIL TERM QRDER ~ ' AND NOW, this L day of ~ ' 2000, upon review of the attached Motion To Withdraw As Counsel filed by Robert L. O'Brien, Esquire, a rule is issued upon Defendant, Charlene R. March, to show why the relief requested should not be granted. Rule returnable within ten (10) days of service. J. ~~ '1- i../., -00 'RKS CHARLENE ROXANN MARCH, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW v. KENNETH EUGENE MARCH, Defendant NO. 95-4936 IN DIVORCE ChilL TERM MOTION TO WITHDRAW AS COUNSEL 1. Movant is Robert L. O'Brien, Esquire, an attorney with offices located at 17 West South Street, Carlisle, Pennsylvania. 2. Respondent is Charlene R. March, an adult individual residing at 1 Wilbert Drive, Carlisle, Pennsylvania. 3. Movant has attempted to represent the Respondent in a proceeding filed by her ex-husband to terminate an alimony order. After a rule was issued, the Movant met with the Respondent to formulate a response. Movant prepared a response. Despite repeated requests that the Respondent review and sign the response, she has refused to do so. 4. The Respondent has refused to attend and be deposed. She did appear at one deposition but refused to follow Movant's advice that she sit and participate in the proceeding. The Respondent at that time did indicate that she did not wish to continue collecting the alimony order. 5. Despite being owed a substantial amount in legal fees and not having received a payment since October, 1998, the Movant was still willing to continue to assist the Respondent in legal proceedings. The Respondent's refusal to cooperate and follow the advice of Movant has rendered it impossible for him to continue to represent her. WHEREFORE, the Movant respectfully requests that he be permitted to withdraw as counsel of record. Respectfully submitted, O'BRIEN, BARIC & SCHERER , By: -- t=2 C)~^~ Robert L. O'Brien, Esquire Attorney for I.D. # 28351 17 West South Street Carlisle, Pennsylvania 17013 robrien@obslaw.com rto.dlr__h.maI .~i.'" '.;:,.; . _.~ ::; ."" :";. , ~~,-,- i.' ,:.- .,::t'c . . ~ ~.... -:- . \ ....-. - - ","".-', ."",,,,~ . ~~. .,)~~ CHARLENE ROXANN MARCH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V, KENNETH EUGENE MARCH NO. 95-4936 CIVIL TERM CIVIL ACTION - DIVORCE ORDER OF COURT AND NOW, this ~ day of February, 2000, upon consideration of the foregoing Petition for Rule to Show Cause, IT IS ORDERED AND DIRECTED AS FOLLOWS: (1) A Rule is issued against Plaintiff to show cause why Defendant's request that his alimony obligation be terminated should not be granted. (2) Plaintiff shall file an answer to the Motion within fifteen (15) days of service. (3) The Motion shall be decided u~d~= Pa. Rule of Civil Procedure 206.7. (4) Any depositions shall be completed within thirty-five (35) days of service. (5) Briefs shall be filed in Chambers by the close of business on Friday. Aoril 7. 2000. Argument shall be held in Chambers on Monday. April 10. 2000. at 8:30 a.m. (6) Notice of the entry of this order along with a copy of the Petition shall be provided to all parties by counsel for Defendant/Petitioner. -==- , , By the Court, ~ Edward E. Guido, Judge Robert L. O'Brien, Esquire For the Plaintiff Harold S. Irwin, III, Esquire For the Defendant/Petitioner :ald Q() LAW OFFICII. OF HAROLD S. IRWIN, III A TTORNEY-AT.LAW HAROLD S. IRWIN, III JOHN J. BARANSKI, JR. HITNER HOUSI!, SUITI!S 201 and 202 311 UST HIGH STREET CARLISLE, PI!NNSYLVANIA 17013 HEATHER A. BARBOUR GAY L. IRWIN PARALEGALS www.cenpenn.com/irwin/ e-mail: irwinlaW@epix.net 717-243-8090 PHONE 717-243-9200 FACSIM..e February 26, 2000 ROBERT L OBRIEN ESQ OBRIEN BARIC & SCHERER 17 W SOUTH ST CARLISLE PA 17013 RE: March v. March No. 95 - 4936 Civil Tenn Dear Rob: Enclosed for service upon you as attorney of record for Charlene Roxann March is a petition for a rule to show cause why Mr. March's alimony obligations should not be terminated due to the cohabitation of Ms. March with another man. Attached to my petition is a copy of Judge Guido's order requiring the depositions be completed within 35 days of service and briefs to be filed by April 7, 2000. Argument is scheduled for April 10 in Judge Guido's chambers. In accordance with this schedule, I would like to schedule the deposition of your client and her "boyfriend". I will be out of the office from March 15 through March 25. Therefore, I would prefer to hold these depositions prior to March 1511I so that we both have adequate time to prepare our briefs. Please provide me with a date or two prior to the 15111 when you and your clients are available. We continue to belieVE: that our position is solid in this case, but remain open to discussing the possibility of settlement. I believe that I could convince Ken to try to come up with a lump sum settlement of $5,000, but I am not sure that he would agree or that I would recommend anything more than that. Harold S, Irwin, III KENNETH E MARCH ~--~~~-~~-----*-*~**)~:.~.~:_-~~-~~~~ ~' ~------- ~._----,- ------._--- . ~ 8 ~ IN THE COURT OF COMMON PLEAS ~ ~l ~ Sf 8 ~ ~' 8 ~ w ~ w ~ ~, r4 '.' ~ <:" w ~ ~l ~( ~I ../ '/ ~) '0') ~ ~, ~ ~i ~l ~ " ~ 8 " ~ ~ " ~ OF CUMBERLAND COUNTY ~ STATE OF . PENNA, CHARLENE ROXANN MARCH Nil. .95:-,4,936 ..CIVIL ItERM ~ 8 3 8 M '. ~ '.' 3 ~ '.' ~ .' 8 3 ~ I, S 8 1 /s (~ S M '. 1M , . I. !~ M .' ~ ~ '. ~ '.' "M ". 8 ~ ~ '~ ~ J. *' S ~ ~ S ~ ~ 8 ~ : ~ ~I 8' ~ ~ ~ .~-.~..~-.~.~.~.~.~.~..~..~.~.~..~*~.~.*.~..~..~*.~.~.*~_.~..~~.~. Plaintiff \' l'1....U:-i KENNETH EUGENE MARCH Defendant DECREE IN D I V 0 R C E .;1: .);'()/ ,.~ . ANDNOW....~.~..!............,.... 19..'9... it is ordered and decreed that CHARLENE .ROXANN. MARCH. . . . . . . . . . . . . . . . . . . . . . '. plaintiff, and. . . . . . . . . KENNB'l'H' EUGENE' MARCH. . . . . . . . . . . . . . . . . '. defendant, are divorced from the bonds of matrimony. The court retains jurisdiction of the following claims which have been raised of record in this action for which a final order has not yet been entered; NONE. Atte,l: ~~~ ",-- nthonoliU\o' . //.IS:f'f' ~ ~ ~~~ 4 O~:(7~ /1'/S--7~ 7t~ ~ z:, 4 ~ - HAROLD I, IRWIN, III, ~IQUIR~ ATTORNIY 10 NO. 2020 311A1T HIOH ITII~I!T CARLIIU'A 17013 (717) 243-8010 ATTORNIY 'OR 'LAINT1PP CHARLI!NE ROXANN MARCH, : IN THE COURT OF COMMON PLI!AS OF Plaintiff : CUMBERLAND COUNTY, PI!NNSYLVANIA v. : CIVIL ACTION. LAW KENNI!TH I!UGI!NI! MARCH, : NO. 95 . 4936 CIVIL TI!RM Defendant : IN DIVORCI! PRAECIPE TO TRANSMIT RECORD To the Prothonotary: Transmit the record, together with the following information, to the court for entry of a divorce decree: 1. Ground for divorce: Separation of the parties for over two years under Section 3301 (D) of the Divorce Code. 2. Date and manner of service of the complaint: On or about September, 1995, defendant was served with a copy of the divorce complaint by certified mail, restricted delivery, addressed to defendant at his residence at 14 Cedar Street, Mt. Holly Springs, Pennsylvania 17065. 3. Date of execution by the plaintIff and service upon the defendant of the affidavIt under SectIon 3301 (D) of the Divorce Code: Executed by plaintiff on December 12, 1997 and attached to the counter-complaint which was served upon defendant. At the Master's conference on September 28, 1999, both parties admitted and stipulated that they have been separated since September, 1995. .' 4. Date of execution by the defendant of the counter-affldavlt under Section 3301 (D) ofthe Divorce Code: The defendant's counter.affidavlt under Section 3301 (d) of the divorce code, a copy of which was attached to the counter- complaint served upon defendant on or about December 22,1997, was not returned by defendant. Moreover, at the Master's conference on September 28, 1999, both parties stipulated to the terms of an agreement disposing of all economic claims of the parties. 5. Date of service upon plaintiff of the notice of Intention to request entry of a divorce decree: September 28,1999 6. Date of execution by the defendant of the waIver of notice of Intention to request entry of a divorce decree: September 28, 1999 (Copy of waiver attached) 7. Related claims pending: None October 20,1999 HAROLD S. IRWI III Attorney for Defen CHARLENE ROXANN MARCH, Plaintiff IN 'lllE CXXJRl' OF <n-MN PIEAS OF CUMBERI1\ND COONTY', PENNSYLVANIA v. 95-L./q.~CIVIL TERM KENNE'llI EmENE MARCH, Defendant CIVIL ACl'ICN-IAW IN DIVORCE lUl'ICE '10 DEFEND AND ClAIM RIGHTS You have been sued in court. If you wish to defend against the clainll set forth in the following pages, you rust take proopt action. You are warned that if you fail to do so, the case nay proceed without you and a decree of divorce or annulment nay be entered against you by the court, A juck}nent may also be entered against you for any other claim or relief requested in these papers by the Plaintiff, You may lose m:>ney or property or other rights ilrportant to you, including custody or visitation of your children, When the ground for the divorce is indignities or irretrievable breakdown of the marriage, you nay request marriage counseling. A list of marriage counselors is available in the Office of the Prothonotary at the CImtlerland County Court House, Carlisle, Pennsylvania. IF YOO 00 lUl' FIlE A CIAIM FOR ALJM:lolY, MARITAL PROPERTY, CXlJNSEL FEES CR EXPENSES BEFORE 'lllE FINAL DECREE OF DIVORCE CR ANNlllllEm' IS GR1IN'mD, YOO MAY LOSE 'lllE RIGHT '10 ClAIM ANY OF 'nm}oI. YOO SHOOID TAKE '!liIS PAPER '10 YOOR ATrORNEY AT rnCE. IF YOO 00 lUl' HAVE AN ATrORNEY CR CANOOr 1lFFORD OOE, 00 '10 CR 'mIEPHCNE 'lllE OFFICE SET roImI BEI.CM '10 FIND arr WHERE YOO CAN GET I..8il\L HELP. Court Administrator CImtler land County Court House Fourth Floor Carlisle, PA 17013 Telephone: (717) 240-6200 . , 0i1lRLENE ROXANN MARCH, Plaintiff IN TIlE COORT OF ~ PlEAS OF aJMBERLAND CXXJNI'Y, PENNSYLVANIA v. 95-qqi~ CIVIL TERM CIVIL ACl'IOO-LAW IN DIVORCE KENNE'm EtX;ENE MARCH, Defendant cn!PIAINl' UNDER SECI'IOOS 330lCCl AND 330lCDl OF TIlE DIVORCE CXlDE 1. Plaintiff is 0i1lRLENE ROXANN MARCH, an adult individual who currently resides at 14 Cedar Street, Mt, Holly Spring, CUrriJerland County, , Pennsylvania. 2. Defendant is KENNE'm EtX;ENE MARCH, an adult individual who currently resides at 14 Cedar Street, Mt. Holly Springs, CUrriJerland County, Pennsylvania. 3. Plaintiff and Defendant have been bona fide residents in the Ccll1ooll'i/ealth of Pennsylvania for at least six IIDnths irrmedi.ately previous to the filing of this Catplaint. 4, The Plaintiff and Defendant were married on Decetber 16, 1972, in Maryland. CXllNT I - DIVORCE Plaintiff hereby incorporates by reference avennents 1 through 4 as if each averment were set forth fully hereunder. 5. There have been no prior actions of divorce or for annulment between the parties as to their current marriage, 6. Neither Plaintiff nor Deferxlant is in the AImed Forces of the united States. 7, Plaintiff avers that the lMITiage between the parties is irretrievably broken. B. The Plaintiff has been advised of the availability of , counseling and that she may have the right to request that the court require the parties to participate in counseling. CXXJm' II - DIVISI<N OF PROPERl'Y Plaintiff hereby incorporates by reference all of the avennents contained in Count I of this Calplaint. 9. The parties have acquired real estate during the course of their marriage located at 14 Cedar Street, Mt. Holly Spring, CUIlberland County, Pennsylvania. 10. The parties have a~ired hane furnishings, llDtor vehicles, bank accounts, and miscellaneous itEmS of personal property, n. The aforesaid itEmS are marital property and the Plaintiff requests that they be equitably divided. CXXJm' III - PAYMENl' OF FEES Plaintiff hereby incorporates by reference all of the avennents contained in Count II of this Calplaint. 12. Plaintiff requests aliroony, aliroony pendente lite, costs and counsel fees. WIiE:REFOOE, Plaintiff prays that a decree be entered in favor of the Plaintiff and against the Defendant as follCMS: a) '11lat a decree in divorce be entered; b) '11lat the herein described marital property owned by the Plaintiff and Defendant be distrihlted according to law; C) Such other additional relief as the Court desns necessary, Respectfully sul:lllitted, 0' BRIEN, BARIC & SOIERER --- ~:ien, ~ire J.D. '28351 17 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 Date: ~ Attorney for the Plaintiff Charlene Roxann March clcnatic/divoroa/march. tan . " . . HAROLD ., lItWIN, III, E.QUIRE ATTORNEY 10 NO. 2112. :II IAU HIGH URI!IT CARLIUE 'A 17.U (717) 242..... ATTORNEY 'OR DE'I!NDANT CHARLENE ROXANN MARCH,: IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION - LAW KENNETH EUGENE MARCH, : NO, 95 - 4936 CIVIL TERM Defendant : IN DIVORCE NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take prompt action. You are warned that if you fail to do so, the case may proceed without you and a decree in divorce or annulment may be entered against you by the court. A judgment may also be entered against you for any other claim or relief requested in these papers by the plaintiff. You may lose money or property or other rights important to you, including custody or visitation of your children. When the ground for divorce is indignities or irretrievable breakdown of the marriage, you may request marriage counseling. A list of marriage counselors is available in the Office of the Prothonotary, Cumberland County Courthouse, Carlisle, Pennsylvania 17013. IF YOU DO NOT FILE A CLAIM FOR ALIMONY, DIVISION OF PROPERTY, LAWYER'S FEES OR EXPENSES BEFORE A DIVORCE OR ANNULMENT IS GRANTED, YOU MAY LOSE THE RIGHT TO CLAIM ANY OF THEM, 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. Court Administrator Cumberland County Courthouse 1 Courthouse Square, 4th Floor CarlIsle, PennsylvanIa 17013 717.249-6200 9. Defendants responses to the averments of fact contained in paragraph nine of plaintiffs complaint are admitted. 10. The averments of fact contained in paragraph ten of plaintiffs complaint are admitted. 11. The averments of fact contained in paragraph eleven of plaintiffs complaint are admitted in part and denied in part. By way of further response, some of the property in possession of the parties was accumulated prior to their marriage and only its increase in value, if any, is subject to equitable distribution. In addition, since the parties' separation they have each accumulated additional personal property which is not marital property and not subject to equitable distribution. COUNT 111- PAYMENT OF tm Defendant hereby incorporates by reference his responses to Count II of plaintiffs complaint, as if each response were set forth fully hereunder. 12. It is admitted that plaintiff is requesting alimony, alimony pendente lite, costs and counsel fees in paragraph twelve of her complaint. It is specifically denied, however, that plaintiff is entitled to receive alimony, alimony pendente lite, costs or counsel fees from the defendant. On the contrary, plaintiff has set forth no grounds whatsoever that would warrant the granting of this request, neither do such grounds exist. By way of further response, plaintiff, through her dilatory conduct in this action, her unreasonable failure to negotiate in good faith, her failure to prepare and file with the Master a pre-trial statement, inventory and appraisement and income and expense statement as required by law and rule of Court have not only caused defendant to incur I additional expenses and inconvenience, but has been an abuse of the processes of this Court justifying an award to the defendant of his attorney fees and costs, as demanded in defendant's counterclaim below. WHEREFORE, defendant requests that your Honorable Court enter a decree in divorce and that the marital property of the parties be equitably divided according to law. However, defendant demands that Count III of plaintiffs complaint be dismissed. !!..EFENDA/lT'S COUNTERCLAIM IN DIVOI!CI; UNDER SEt;.rIOI(S 33Q1.l~) AND 3301l111-Clt: THE DIVORCE CODE Defendant hereby incorporates by reference his responses to Counts I, II and III of plaintiffs complaint, as if each response were set forth fully hereunder. 13. Pursuant to the Divorce Code, Section 3301(d), the plaintiff avers as the grounds upon which this action is based that the marriage between the parties is irretrievably broken and that the parties hereto have lived separate and apart for a period of at least two years. 14. The parties have lived separate and apart since September, 1995. 15. The plaintiff has a substantial earning capacity; however, plaintiff has voluntarily terminated her employment and has failed in bad faith to secure alternative employment. 16. Plaintiff, through her dilatory conduct in this action, her unreasonable failure to negotiate in good faith, her failure to prepare and file with the Master a pre- trial statement, inventory and appraisement and income and expense statement as required by law and rule of Court have not only caused defendant to incur additional expenses and inconvenience, but has been an abuse of the processes of this Court justifying an award to the defendant of his attorney fees and costs WHEREFORE, the plaintiff demands judgment dissolving the marriage between the parties and for such further relief as your Honorable Court may deem equitable and just. I verify that the statements made in this complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C. S. Section 4904, relating to unsworn falsification to authorities. ~(-"'LlC.'~. NQ"8A'llter .il::..., 1997 IG/Y1hti-IA f: fJ7a~~ KENNETH EUGENE MARCH {0J~.,u1 HAROLD S, IRWIN, III Attorney for Ke , March CHARLENE ROXANN MARCH,: IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION - LAW KENNETH EUGENE MARCH, : NO. 96 - 4936 CIVIL TERM Defendant : IN DIVORCE NOTICE TO THE DEFENDANT If you wish to deny any of the statements set forth in this affidavit, you must file a counter-affidavit within twenty days after this affidavit has been served on you or the statements will be admitted. PLAINTIFF'S AFFIDAVIT UNDER SECTION 33DI(dJ OF THE DIVORCE CODE 1. The parties to this action separated in September, 1995, and have continued to live separate and apart for a period of at least two years. 2. The marriage is irretrievably broken. 3. I understand that I may lose rights concerning alimony, division of property, lawyer's fees or expenses if I do not claim them before a divorce is granted. I verify that the statements made in this affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. of 4904 relating to unsworn falsification to authorities -~ O'...'f'~... N"T thar; ~-;-1997 ~"'A1~#. f ph/Lt'h K NNETH EUGENE MARCH CHARLENE ROXANN MARCH,: IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION - LAW KENNETH EUGENE MARCH, : NO. 96 - 4936 CIVIL TERM Defendant : IN DIVORCE COUNTER-AFFIDAVIT UNDER SECTION 330100 OF THE DIVORCE CODE 1. Check either (a) or (b): (a) I do not oppose the entry of a divorce decree. (b) I oppose the entry of a divorce decree because (Check (i), (ii) or (both): (i) The parties to this action have not lived separate and apart for a period of at least two years. Oi) The marriage is not irretrievably broken. 2. ChdCk either (a) or (b): (a) I do not wish to make any claims for economic relief. I understand that I may lose rights concerning alimony, division of property, lawyer's fees or expenses if I do not claim them before a divorce is granted. (b) I wish to claim economic relief which may include alimony, division of property, lawyer's fees or expenses or other important rights. I verify that the statements made in this affidavit are true and correct I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. ,1997 CHARLENE ROXANN MARCH NOTICI: I' you do not wish to oppose the antry 0' e divorce decree end you to not wish to meke e clelm for economic rell.', you n.ad not fila this countereffldevlt. HAIlOLD a. IIlWIN, III, laQUlllE ATTDIlNEY ID NO. ZIIZI U ..aT HIGH aTIlEET CAIlLlaLE PA 17ln (717) Za-elll ATTOIlNEY FOil DEFENDANT CHARLENE ROXANN MARCH,: IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW v. KENNETH EUGENE MARCH, : NO. 95 - 4936 CIVIL TERM Defendant : IN DIVORCE ACCEPTANCE OF SERVICE I, Kenneth Eugene March, defendant in the captioned divorce action, hereby certifY that I received a copy of the complaint in divorce on or about September 18, 1995. I verifY that the statements made in this acceptance of service are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. r- June~, 1997 ~j/, ~ f11(}~ KENNETH EUGE CH /" CHARL~N~ ROXANN MARCH, I IN TH~ COURT OF COMMON PLl!AI OF Plaintiff : CUMBI!RLAND COUNTY, PI!NNIYLVANIA I y, : CIVIL ACTION. LAW KI!NNETH I!UGI!NI! MARCH, : NO. 95 . 4938 CIVIL TERM Dafendant : IN DIVORCI! 1. I consent to the entry of a final decree of divorce without notice. 2. I understand that I may lose rights concerning alimony, division of property, lawyer's fees or expenses if I do not claim them before a divorce is granted. 3. I understand that I will not be divorced until a divorce decree is entered by the Court and that a copy of the decree will be sent to me immediately after it is filed with the Prothonotary. I verify that the statements made in this affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. September 28,1999 K fl/n/M# ~ f) 1 aMA . KENNETH EUGENE MARCH HAIIOLO I. IIIWIN, III, EIQUIIIE AnOIlNE\' ID NO. allzo U UaT HIGH ITIIEET CAIILlaLE 'A 17.n (717) aG..... AnOIlNE\' FOil DEFENDANT CHARLENE ROXANN MARCH,: IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW v. KENNETH EUGENE MARCH, : NO. 95 - 4936 CIVIL TERM Defendant : IN DIVORCE MOTION FOR APPOINTMENT OF MASTER claims: KENNETH EUGENE MARCH, plaintiff, moves the court to lIflPOint a master with respect to the IoIlowing ( X ) Divorce () Annulment () Alimony () Alimony Pendente lite ( X ) Distribution 01 Property () Support () Counsel Fees ( X ) Costs and Expenses and in support 01 the motion states: (1) DiSCO'lBl'f is complete es to the c1aim(s) lor which the lIflPOintment 01 the master is requested. (2) Robert l. O'Brien, Esquire has entered an appearance lor plaintiff in this civorce action. (3) The statutory grounds lor dvorce as stated by plaintiff are Section 3301 (c) and (d). i4) Delete the inapplicable paragraph(s): (a) The action is contested. (b) An agreement has not been reached with respect to the above claims. (c) The action is not contested with respect to the IoIlowing c1aim(s): None (5) The action does not involve complex issues 01 law or lact. (6) The healing is expected to take one-half (112) day. (7) Addtional inlormation, if any, relevant to the motion: June 2, 1997 ORDER APPOINTING MASTER NOWVuJItL /1 , 1997, ~.li.Jbt.Ri [j,c/(l/t.. Esquire. is lIflPOinted master with respect to the IoIlowing claims: f+.u c.. ~ c.1...~' \ By thr Court, I J ( \\ \- . )( //// v I J. . . . CHARLENE ROXANN MARCH, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 95-4936 CIVIL TERM IN DIVORCE Vs. KENNETH EUGENE MARCH, Defendant INVENTORY AND APPRAISEMENT OF CHARLENE ROXANN MARCH (X) Plaintiff () Defendant files the following Inventory and Appraisement of all property owned or possessed by either party at the time this action was commenced and all property transferred within the preceding three years. (X) Plaintiff () Defendant verifies that the statements made in this Inventory and Appraisement are true and correct. (X) Plaintiff ( ) Defendant understands that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. ~iI1lJ ~ fY7~ CHARLENE ROXANN MARCH (X) Plaintiff () Defendant Dated:~ ASSETS OF PARTIES Plaintiff marks on the list below those items applicable to the case at bar and itemizes the assets on the following pages. If an item has been appraised, a copy of the appraisal report is attached. Real Property Motor Vehicles Stocks" bonds, securities and options Certificates of Deposit Checking Accounts, Cash Savings Accounts, Money Market and Savings Certificates Contents of safe deposit boxes Trusts Life Insurance policies (indicate face value, cash surrender value and current beneficiaries) Annuities Gifts Inheritances Patents, copyrights, inventions, royalties Personal property outside the home Business (list all owners, including percentage of ownership, and officer/director positions held by a party with company) Employment termination benefits-severance pay, workman's compensation claim/award Profit sharing plans Pension plans (indicate employee contribution and date plan vests) Retirement plans, Individual Retirement Accounts Disability payments Litigation claims (matured and unmatured) MilitaryNA benefits Education benefits Debts due, including loans, mortgages held Household furnishings and personalty (include as a total category and attach itemized list if distribution of such assets is in dispute) () 26 Other (X) 1. (X) 2. ( ) 3. ( ) 4. ( ) 5. ( ) 6. ( ) 7. ( ) 8. ( ) 9. ( ) 10. ( ) 11. ( ) 12. ( ) 13. ( ) 14. ( ) 15. ( ) 16. ( ) 17. ( ) 18. ( ) 19. ( ) 20. ( ) 21. ( ) 22. ( ) 23. (X) 24. (X) 25. i- MARITAL PROPERTY Plaintiff lists all marital property in which either or both spouses have a legal or equitable interest individually or with any other person as of the date this action was commenced: Item Number Description of Prooertv Names of all Owners Value 1. Real Estate Charlene March & $Unknown (14 Ceder Street, Mt. Holly Kenneth March Springs, PA.) 2. Vested retirement Charlene March $565.25/month Kenneth March at age 65 3. Washer Charlene March & $150.00 Kenneth March 4. Dryer Charlene March & $200.00 Kenneth March 5. Freezer Charlene March & $800.00 Kenneth March 6. Refrigerator Charlene March & $800.00 Kenneth March 7. Sweeper/Shampooer Charlene March & $700.00 Kenneth March 8. Television Charlene March & $400.00 Kenneth March 9. Motorcycle Charlene March & $300.00 Kenneth March 10. Boat Charlene March & $900.00 Kenneth March 11. Riding lawn Mower Charlene March & $800.00 Kenneth March 12. Garden Tractor Charlene March & $500.00 Kenneth March 13. Bed Charlene March & $500.00 Kenneth March p,.'nlift "'" alll""'." '" ","Ie" . ,po"'" .... · ,ag.' or ....\aI>I. ,..",aat ","Ich ~ dal""'" \0 "" ."",,,,,ad ,to"' """"", "op.'" I\el'll DescriptiOn Number ot pro eft 1. 1987 cn8"role\ Mtro "an 2. 1987 "an NON.MP-RljP-L PROPERn' , Names ot All wl"lers Ctlarlel"le Marctl Ctlarlel"le Marctl "alue $1200.00 $1200.00 . $1500.00 " \ I , \ ... \ I j. , , \ \ \ 1 LIABILITIES OF PARTIES Plaintiff marks on the list below those items applicable to the case at bar and itemizes the liabilities on the following pages. SECURED (X) ( ) ( ) ( ) 1. Mortgages 2. Judgments 3. Liens 4. Other Secured Liabilities UNSECURED ( ) ( ) ( ) ( ) ( ) 5. Credit card balance 6. Purchases 7. loan payments 8. Notes payable 9. Other Unsecured Liabilities CONTINGENT OR DEFERRED ( ) 10. Contracts or Agreements ( ) 11. Promissory Notes ( ) 12. lawsuits ( ) 13. Options ( ) 14. Taxes ( ) 15. Other contingent or deferred liabilities LIABILITIES Plaintiff lists all liabilities of either or both spouses alone or with any person as of the date this action was commenced: Item Description Number of Liabilitv 1. Mortgage Names of All Creditors Signet Mortgage Item Number 1. Date Liability was Incurred July 1995 Amount of Liability on Date Incurred & Action was Commenced $79,000.00 (approximate) Item Number 1. Date Balance is Due Periodic Pavment and Amount $ 789.56 Names of All Debtors Charlene March & Kenneth march ... .\ " .' m::xH: AND EXPI!HSE STAmI!2fr OF Cho.r\~",e... 1:'. ~t"c:...\- SSN ~ - % - fti.1? DR. DATE ~ '!HIS STATEMEm' MUST BE FILIED CXJT IJIClH: (a) Wages/Salary Erlployer & J\cklress Job Title/DeScription Pay pericx:l (weeklv. bi-weekly, m:mthly) Gr'oss Pay ~ Pay Pericxi................................................. $ Payroll Deductions: Federal Withholding".......", S Social Security................ $ Local wage Tax................. $ State Income Tax............... $ Reti.r'errent. . . . . . . . . . . . . . . . . . . .. $ Health Insurance............... $ other (specify)................ $ .......................... $ ................................ $ Net Pay per Pay Pericxi..............~~~":\.............. $ $ 'SO (b) Other Incane WEEK Interest/Dividends....."., S Pension/Annuity............ S Social Security....................... S Rents/ROyalties............ S Expense Account............ S Gifts........................................ .. S UnEllployment Catpensation., S Workmen' s CaTpensation,.... S Total Other Incane..,.....1 I' S Month Year INCDME AND EXPENSE Sf A -reMEJIIT OF II'aif Y tblIIlhe dol_IS made in Ibis Inaxne and Expeme <;O"t""""' 1ft InIe lIIId oorm:t. I undmIand tblII ralor swemenb herein 1ft made subject lD the P'"""k~ of 18 Pa. C.s. t 4'Xl4 ~Iating lD W1SWOI1l r akif IClIIico lD autloities. Dale: ~ (}Ju:M~1 R,/fjuui Household Week Child Week Household Child Month Month JI:.-J1!.~ Mortgage/Rent.................. $ l-Ia.intenance.................... $ 3nn Utilities ~C;O,OO Telephone................ $ Hee.ting. . . . . . . . . . . . . . . . " $ Elect.ric................, $ Enployment (transportation and electric).............. $ Taxes Real Estate.................... $ Personal Property.............. $ Incane......................... $ Insurance HCJTleC7.fIIlers..................... $ AutomObile..................... $ Life/lIccident/Health..,..,..... $ Other.......................... $ AutomObile (payments, fuel, (r~s)...................... $ Z\5O Medical Doctor, Dentist, Orthodortist.. S Hospital. . .. . . . . . . . . . . . . . . . . . .. $ Special (glasses, braces etc,) S Education Private, Parochial Schoc l. . , . ,. S College................. ....... $ Personal Clothing.............. ........ S F()()(j. . . . . . . . . . . . . . . . . . . . . . . . . .. $ $ $ ~ Other (household supp~ies, l::lartJer, etc.)................ Credit payments and loans.",.. 40 Miscellaneous Household help/ch'ld care...... S Entertainment (ir;, papers books, vaC/ltic:J, pay TV, etC) S Gifts/charitablE contributions ~l Fees..................... $ Other child support/aliJIDny ~ts.....................$ Ot.her (~ify)...................... $ TOtal Expenses....................... $ HAIlOLD a lItWIN, III ATTOIUIIY ID NO. ZIIZI n IAIT HIGH aTIlEET CARLISLE FA inn (717) ~'" ATTOIUIIY FOil DEFENDANT CHARLENE ROXANN MARCH,: IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW v. KENNETH EUGENE MARCH, : NO. 95 - 4936 CIVIL TERM Defendant : IN DIVORCE CERTIFICATE OF SERVICE I, Harold S. Irwin, III, hereby certify that I am serving a true and correct copy of the Defendant's First Set ofInterrogatories and Request For Production of Documents on Attorney Robert L. O'Brien, counsel for Plaintiff, whose office is located at 17 West South St, Carlisle, PA 17013 ,by depo 'ting a copy of same in the United States mail, postage prepaid, this 1998. l~Wv\ Harold S. Irwin, IL ) 6. The Master directed the parties to file a Pre-Trial Statement on or before July 11, 1997. Defendant filed a Pre-Trial Statement on or about July 11, 1997. Plaintiff has not filed a Pre-Trial Statement. 7. Counsel for the parties met with the Master on September 29,1997 for a pre-trial conference; however, little progress in the case was made at that time and the Master set a date in January, 1998 for a hearing. 8. On or about October 8, 1998, counsel for defendant submitted to plaintiffs counsel a proposal to resolve the economic issues between these parties. Following that, the parties sought to obtain various discovery information form each other and to obtain an evaluation of defendant's pension. 9. Plaintiff did file an Inventory and Appraisement on November 18, 1997. 10. On December 22,1997, defendant answered the complaint and filed a counterclaim in divorce under Sections 3301 (c) and 3301 (d) of the Divorce Code. 11. The parties held another conference at the Master's office on January 26, 1998, rather than a hearing. At the conference, counsel believed that it might be possible for the parties to resolve their equitable distribution issues and defendant's counsel offered to prepare an agreement based on counsels' understandings at that time. 12. On or about February 17, 1998, defendant's counsel presented plaintiffs counsel with a proposed agreement. Plaintiff rejected the terms in the proposed agreement and no further negotiations have been held between the parties since that time. J. CHARLENE R. MARCH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. KBNNETH B. MARCH NO, 95-4936 CIVIL TERM DIVORCE ACTION - LAW AND NOW, this ORDER OF COURT 4111 day of FEBRUARY, 1999, a hearing is scheduled for Friday, March 5, 1999, at 9:00 a.m. in Courtroom' 5 in the above captioned divorce matter. By the Robert L. O'Brien, Bsquire For the Plaintiff _ ~.;.,,, ~J<L :2/.,.}q'l. ,.J -:fj?, Harold Irwin, III, Esquire For the Defendant :sld CHARLENE ROXANN MARCH, : Plaintiff/Respondent: v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW IN DIVORCE KENNETH EUGENE MARCH : Defendant/Petitioner: 95-4936 CIVIL TERM ORDER OF COURT AND NOW, this 5th day of March, 1999, after hearin9, the defendant's petition for bifurcation IS DENIED. This matter is directed to the Master for a prompt resolution of the economic issues as well as the entry of a divorce decree. Edward E. Guido, J. Robert O'Brien, Esquire O'BRIEN, BARRICK' SCHERER 17 West South Street Carlisle, PA 17013 Counsel for Plaintiff/Respondent Harold Irwin, III, Esquire IRWIN, McKNIGHT , HUGES 60 West Pomfret Street Carlisle, PA 17013 Counsel for Defendant/Petitioner COPIES MAILED ON: lIAR 0 8 1999 :lkt /.:,; , CHARLENE ROXANN MARCH, Plaintiff . . :N THE COURT C'F COMMON PLEAS OF CUMBERLAND COU:;TY, PENNSYLVANIA NO. 95 - 4936 CIVIL . . : vs. . . . . KENNETH EUGENE MARCH, Defendant IN DIVOI-.CE ORDER OF COURT AND NOW, this I~ day of Oc.hk , 1999, the parties and counsel having entered into an agreement and stipulation resolving the ecorcmic issues on September 28, 1999, the date set for a Master's h~2aring, the agrHement and . stipulation having been tran~cribed and subsequently signed by the parties and counsel, t',e appc in'.:n:. It of the Master is vacated, and counsel can conclude the proceedings by the filing of a praecipe to transmit the record. BY THE COURT, .'-=-c:o) P.3. co: Robert L. O'Brien Attorney for Plaintif~ Ie /'Iq~. ...s 'f. Harold S. Irwin. 111 Attorney for Defendant CHARLENE ROXANN MARCH, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW KENNETH EUGENE MARCH 95-4936 CIVIL TERM Defendant IN DIVORCE THE MASTER: Today is Tuesday, September 28, 1999. This is the date that we have set for a hearing in the above-captioned divorced proceedings. Present in the hearing room are the Plaintiff, Charlene Roxann March, and her counsel Robert L, O'Brien, and the Defendant, Kenneth E. March, and his counsel Harold S. Irwin, III. A divorce complaint was filed on September 15, 1995, raising grounds for divorce of irretrievable breakdown of the marriage. Mr. Irwin filed an affidavit on behalf of his client, Kenneth E. March, on December 22, 1997, averring that the parties have been separated since September 1995, in excess of two years, The affidavit states that it is the "Plaintiff's" affidavit; however, Mr. Irwin has pointed out that Mr, March is the counterclaim Plaintiff, and this pleading was filed as a counterclaim. In any event, the divorce can be concluded under Section 3301(d) based on the two-year separation of the parties, The complaint raised the economic claims of equitable distribution, alimony and counsel fees and expenses, The Master is going to state on the record what he understands to be the agreement of the parties with respect to the outstanding economic claims in the presence I I of the parties and counsel. The agreement as stated on the record will be considered the substantive agreement of the parties, not subject to any changes or modifications, except for correction of typographical errors, which may be made during the transcription. Counsel and the parties are going to return later today to review the draft of the agreement for typographical errors, make any corrections as necessary, and then affix their signatures by way of affirmation of the terms of the agreement as stated on the record. The Master will then prepare an order vacating his appointment so that the Defendant can file a praecipe transmitting the record to the Court requesting a final decree in divorce. The Master understands the agreement with respect to the outstanding economic claims to be as follows: 1. Husband and wife own jointly real estate at 14 Cedar Street, Mt. Holly Springs, Pennsylvania. The house is subject to a mortgage with SIGNA Mortgage Corporation. Within two weeks of today's date wife will sign a deed transferring all of her right, title and interest to husband in the real estate. Husband will indemnify and save wife harmless on account of the mortgage debt with SIGNA Mortgage Corporation. 2. The parties have previously distributed the household tangible personal property and vehicles. Counsel have advised that there are no titles to vehicles which need to be transferred to effect distribution. 3, Husband has a savings plan with his employer, Appleton Papers, and he will be entitled to retain that plan, free of any claims by wife. 4. Husband's pension plan with Appleton Papers will be distributed pursuant to a Qualified Domestic Relations Order prepared by counsel and submitted to the Court for signature. The percentage of distribution will be 50/50 using the coverture formula. 5. Husband will be responsible for the outstanding marital debt which he has been paying to Members First. Husband has previously paid off a debt to Pennsylvania National Bank. As previously indicated, he will be solely responsible for the payment on the mortgage to SIGNA Mortgage Corporation, 6. Wife has filed a claim for alimony, and the parties have agreed that husband shall pay alimony to wife in the sum of $812.00 per month. The payment of alimony will be indefinite, subject to changes of circumstances of the parties, which may allow the Court to terminate or modify the alimony. The alimony will terminate, however, in accordance with the termination provision in the Divorce Code, in the event of the death of either party, wife's co- habitation with a person of the opposite sex, or wife's re-marriage. 7. We have discussed the allegation that wife is co-habiting with a person of the opposite sex, and upon the entry of the divorce decree, that issue will be ripe for the Court to consider, and if husband wishes to pursue that allegation, he can petition the Court for a hearing to take testimony and make a determination as to whether or not wife is engaged in a relationship where she is co-habiting. 8. The alimony will be paid through the Cumberland County Domestic Relations Office. The current support order which is entered will be terminated and the alimony order will be instituted in place of the support order. 9. Wife will waive her claim for counsel fees and costs. 10. Except as herein otherwise provided, each party may dispose of his or her property in any way, and each party hereby waives and relinquishes any and all rights he or she may now have or hereafter acquire under the present or future laws of any jurisdiction to share in the property or estate of the other as a result of the marital relationship including, without limitation, statutory allowance, widow's allowance, right of intestacy, right to take against the will of another, and right to act as administrator or executor in the other's estate. Each will at the request of the other execute, acknowledge and deliver any and all instruments which may be necessary or advisable to carry into effect this mutual waiver and relinquishment of all such interests, rights and claims. The parties were married on December 16, 1972, and based on the affidavit filed were separated in September 1995. They are the natural parents of two adult children. Counsel, do you have anything that you want to add to the statement that I made on the record? MR. IRWIN: I just have a question. On my - praecipe to transmit the record, and all of that stuff, what about notices that I am going to do that -- THE MASTER: You have to file a notice of intention, that's why I asked if there were affidavits of consent and waivers of notice, then you would not have to file your notice of intention. MR, IRWIN: Okay. MR. O'BRIEN: I would want the notice, that will give her time to arrange for medical coverage, and I explained to her that the options are to continue through the COBRA plan with his employer, which may be a significant expense to her because of the coverage or else to make alternate arrangements. MR. IRWIN: All right. THE MASTER: Mrs. March, have you heard my statement of the agreement on the record? MRS. MARCH: Yeah, but I don't understand. It sounds like he is getting the home and he is getting everything because of those loans he made, and he has the boat and everything else at the house, THE MASTER: Well, that's correct, he is getting everything that -- but as I understand it, that's already been distributed between the two of you, and the house has no value. MRS. MARCH: THE MASTER: show otherwise? MRS. MARCH: No, I can't afford to pay one Well, that's what he says. Well, do you have an appraisal to right now or I would. THE MASTER: that we have before us, record. All we can do is go on the facts We can't assume facts not on the Do you understand what the statement was on the record? Do you understand the agreement? MRS. MARCH: Yeah, most of it, But one thing I don't understand is even if I do have a relationship with somebody, how can he go out and get another woman pregnant and live with somebody. I don't understand that. THE MASTER: Because you are not paying him any money. MRS. MARCH: I don't see where that makes any difference. THE MASTER: Well, that's what the law is. If you were paying him alimony, it would apply, but he is the one who is paying you. It's your alimony claim, not his. Do you have any questions, Mr. March? MR. MARCH: The only thing, you said we were the natural parents of two children. THE MASTER: Is that not correct? MR. MARCH: No. THE COURT: Tell me what's not correct. MR. MARCH: But the oldest one wasn't my child. MRS, MARCH: It was too, MR. IRWIN: For the last 26 years have you acknowledged her as your child? LAW OFFICE. OF HAROLD S. IRWIN, III ATTORNEY-AT-LAW HAROLD S. IRWIN, III HEATHER A. BARBOUR JOHN J. BARANSKI GAY LIRWlN PARALEOAUI HITNIII HGUSI, SUITIS 201 and 202 35 lAST HIGH STIII!T CAIILISLE, PINNSYLVANIA 17013 www.cenpenn.comArwinl a-mail: irwinlaW@epix.nel 717-243-<<lQO PHONE 717-243-1/200 FACSIMILE March 28.1998 E ROBERT EUCKER ESQ DIVORCE MASTERS OFFICE 9 N HANOVER ST CARLISLE PA 17013 RE: MARCH (No. 95 . 4936 Civil Term) Dear Mr. Elicker: Following our last appearance at your office, it was hoped that it might be possible to resolve this matter by agreement. I drafted a proposal and forwarded it on to Attorney O'Brien to review with his client. Unfortunately, the proposal was not accepted by Mrs. March. Attorney O'Brien did provide a counter-proposal; however, the demands of his client are out of the question as far as Mr. March is concerned. I am not sure where things were to go from here, if we were not able to resolve this case. I do know that Mr. March challenges Mrs. March's right to receive alimony; however, I am unclear about whether other matters needed to be addressed at your office. Please advise. KDIeTH MARCH 14 CEllAR IT CARLISLE PA 11013 R08!RT L OIIRJEN l!1Q OBRIEN IIARIC & ICH!R!R 17 W IOUTH IT CARLISLE PA 11013 / OFFICE OF DIVORCE MASTER CUMBERLAND COUNTY COURT OF COMMON PLEAS 9 North Hanover Street Carlisle, PA 17013 (717) 240-6535 E. Robert Elicker, II Divorce Master Trecl .10 Colyer Office ManageriAeportar West Shore 697-0371 Exl. 6535 March 31, 1998 Robert L. O'Brien, Esquire O'BRIEN, BARIC' SCHERER 17 West South Street Carlisle, PA 17013 Harold S. Irwin, III, Esquire 35 East High Street Carlisle, PA 17013 RE: Charlene Roxann March vs. Kenneth Eugene March No. 95 - 4396 civil In Divorce Dear Hr. O'Brien and Mr. Irwin: I am writing in response to Mr. Irwin's letter of March 28, 1998. I am unable to determine from the letter what the issue is between the parties that has prevented the signing of the agreement. I have not seen the draft of the proposed agreement nor do I know, of course, what was unacceptable about the proposed draft. I do remember that after we left the conference in my office on January 26, 199B, the parties and counsel had tentatively worked out an agreement on the alimony and other issues with the exception of the percentage to be applied to the coverture formula. Otherwise, I thought all matters were resolved and Mr. Irwin was to draft an agreement and suggest a percentage to be applied to the coverture fraction. In looking over the pre-hearing conference memorandum, I need to be clear that all matters are ready for trial betore scheduling this case because there were some issues regarding intormation to be provided and the possibility that husband was going to have a vocational expert evaluate wite. Also, Hr. Irwin indicated there were some continuing issues regarding wite's income. I would suggest that the parties exchange the tax returns which each tiled tor 1997, which hopetully would help clear up those issues. With respect to the vocational evaluation, Mr. Irwin needs to address that matter and let us i ! I I r ~. ~ . Mr. O'Brien and Mr. Irwin, Attorneys at Law 31 March 1998 Paae 2 know if he intends to proceed. Also, I requested statements of the amounts due and owing at the time of separation and the balance owed on debts with respect to the credit cards relating to the marital debt so we could do a proper allocation of debt in the event of a hearing. I do not know if that information has been provided. Whether or not the case is ready for hearing is unknown to me; I am willing to reschedule the matter for a conference with counsel only or with the parties included, if counsel think that would helpful. 1 am not certain that we are ready to go to trial on this matter based on the issues that were addressed at the pre-hearing conference memorandum. I will await direction from both counsel as to your position on how we should proceed. Very truly yours, E. Robert Elicker, 11 Divorce Master l.aw Office., O'BRIEN, BARIC" SCHERER 17 II..,., South SIn!el Carli.,le, Pelln.'ylvania 170B Sleven J. Fishman OjCau/IJel Robert L O'Brien David A. Baric MIchael A. Schen!r E-maIl obs@eptx.nel (7/7)249-6873 FAX (717) 249-5755 July 23, 1998 Mr. E. Robert Elicker, II Divorce Master Office of Divorce Master Cumberland County Court of Common Pleas 9 North Hanover Street Carlisle, PA 17013 Re: Charlene Roxann March vs. Kenneth Eugene March No. 95 - 4396 Civil In Divorce Dear Mr. Elicker: I have been contacted by Charlene March, and she has directed that this matter be scheduled before you for final resolution. Please advise my office as to the scheduling date at your earliest possible convenience, as my client will be moving out of state in the near future. Should you have any questions or comments, please contact me at the office. Very truly yours, O'BRIEN, BARIC & SCHERER ~~ Robert L. O'Brien, Esquire RLO/rm cc: File C.March RC:l&OOMESTlCAMfitCH2lET LAW OFFICES OF HAROLD S. IRWIN, III ATTORNEY-A T-LAW HAROLD S. IRWIN, III JOHN J. BARANSKI, JR. HITNER HOUSE, SUITES 201 and 202 35 EAST HIGH STREET CARLISLE, PENNSYLVANIA 17013 HEATHER A. BARBOUR GAY L. IRWIN PARALEGALS www.cenpenn.com/irwin/ e.mail: irwinleW@epix.nel 717-243.6090 PHONE 717.243.9200 FACSIMilE March 11, 1999 E ROBERT ELICKER ESQ OFFICE OF DIVORCE MASTER 9 N HANOVER ST CARLISLE PA 17013 RE: March v. March No. 95 - 4936 Civil Term Dear Bob: Enclosed please find a copy of the order entered by Judge Guido after a hearing on Mr. March's bifurcation petition. The order directs this case back to your office for a prompt resolution of the economic issues and the entry of a divorce decree. We have already had a pre-hearing conference in this case some time ago. At that time, counsel thought we might have the case worked out and I was to prepare a marital settlement agreement for the parties to review and hopefully sign. Mrs. March declined to sign the agreement however and the parties have been unable to come to terms on the economic issues since that time. I would appreciate it if a hearing could be scheduled quickly in this case. There are very few assets in this case, although there is a certain disparity in income, and a hearing should take less than half a day. Mr. March has paid over $20,000 in spousal support to date. I probably need to update my pre-trial memo and Attorney O'Brien did not file one previously. However, I do not think another pre-trial conference is necessary. In another case, I notice that the hearing just scheduled is not until September. I would very much like to conclude this one long before September, if at all possible. These parties have been separated for 3 Yo years. We were denied bifurcation, but Mr. March does desire to conclude this and get on with his life. Anything you could do to get this in your calendar in the near future would be appreciated. S~~, (ZPi. -- Harold~, III KENNETH E MARCH ROBERT O'BRIEN . ~ CHARLENE ROXANN MARCH. IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW VB. KENNETH EUGENE MARCH. Defendant NO.95-4936 19 CIVIL : : IN DIVORCE STATUS SHEET DATE: ACTIVITIES: -; t~ 1/1 ~ ~/Zf{4~ ,~ ('}.\" 1')/1[.,11 . _ _______ --1.....:.1x~_ .__.4._____, .L____-____.._________ " " ,~ " I 'l f /' " ' .' \ ,', '-ti...11 I r .l W1rP' 'W~!~J: tJ\~.tr~ = -jd'r-a.L-L~___- .r. _ _ (;0 .II'I!< "-""'<.~' 0:"":',,11"" 'H't -elA..~A"""l' (,4.pi~: _. ,.:1;) I' ,. 'J' , ,(' \. 't,If I.' ~ v..ul,Mt.....:! ( ~ . I t. 'v-. l ") - , ~ o(.9jo---..r"dN.r.".I/.-1 ~ t./-. .1 I .~ ~ . 'lI\ -" ( r" f ~ ~....., ._'" _, ~ '.. u, fA I ~_ ~_"J~J(,,-.~/:"'-?I": :lr--- ~ 1'\.~ 1~J..j ~a u.11~-p;.1 ",..,....''''" .~(( "'~\A 'ic LL..;zt"'/J. tn,'1y..... .,l;t'\A..J'J u..1/ "I..,..L.(rt, .~,..I tv..,.......; 'f-- T::J?!..{ t,J..".. A, '.;'J..-,-'...c.~."" ""~ ...)V....I(o.. .......VYV .t~t't. , .~." , .7tt>.~ 6. H .. ;" I .... .. . t 'i ,. '_ I 'Ie t'~c" ~'tH,.(.K' 1ti.... , /."~i;;;~i~2;:~.; ;~:J2- ~::::/ ~:!$!;tifj:t:;"~~'L (--=._l~+~~ 4....._._J 1<<'l.oJJ'-.. . a-V~hi:__ ,~1k!~~~.:::t- ~~II ./ OFFICE OF DIVORCE MASTER CUMBERLAND COUNTY COURT OF COMMON PLEAS 9 North Hanover Street Carlisle. PA 17013 (717) 240-6535 E. Robert Elicker, II Divorce Master TrRI .10 Colyer Office ManageriAeporter West Shore 697-0371 Ex!. 6535 June 16, 1997 Robert L. O'Brien, Esquire O'BRIEN, BARIC' SCHERER 17 West South Street CarliSle, PA 17013 Harold S. Irwin, III, Esquire 35 East High Street Carlisle, PA 17013 RE: Charlene Roxann March vs. Kenneth Eugene March No. 95 - 4936 civil In Divorce Dear Hr. O'Brien and Mr. Irwin: By order of Court of President Judge Harold E. Sheely dated June 11, 1997, the full-time Master has been appointed in the above referenced divorce proceedings. A divorce complaint was filed on September 15, 1995, raising grounds for divorce of irretrievable breakdown of the marriage. The complaint also raised the economic claims of equitable distribution, alimony, and counsel fees. The motion for appointment of the Master does not request my appointment with respect to alimony; however, the alimony claim has been raised in the pleadings. 1 am going to proceed on the basis that grounds for divorce are not an issue. I direct each counsel in accordance with P.R.C.P. 1920.33(b) to file a pre-trial statement on or before Friday, July 11, 1997. Upon receipt of the pre-trial statements 1 will immediately schedule a pre-hearing conference CHARLENE ROXANN MARCH, Plaintiff VS. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 95 - 4936 Civil KENNETH EUGENE MARCH, Defendant IN DIVORCE NOTICE OF PRE-HEARING CONFERENCE TO: Robert L. O'Brien , Counsel for Plaintiff Harold S. Irwin, III , Counsel for Defendant A pre-hearing conference has been scheduled at the Office of the Divorce Master, 9 North Hanover street, carlisle, Pennsylvania, on the 29th day of September, 1997, at 2:00 p.m., at which time we will review the pre-trial statements previously filed by counsel, define issues, identify witnesses, explore the possibility of settlement and, if necessary, schedule a hearing. Very truly yours, Date of Notice: 7/17/97 E. Robert Elicker, II Divorce Master Robert L. O'Brien, Attorney for Plaintiff, has not filed a pre-trial statement as of the date of this notice. Harold S. Irwin, III, Attorney for Defendant, filed a pre-trial statement on July 10, 1997. CHARLENE ROXANN MARCH. IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY. PENNSYLVAN II. : vs. CIVIL ACTION - LAW NO. 95-4936 CIVIL 1 q KENNETH EUGENE.MARCH. Defendant IN DIVORCE ORDER /\NO NOTICE SETTING HEARING To: Charlene Roxann March Robert L. O'Brien Kenneth Eugene March Harold S. Irwin. III , Plaintiff , Counsel for Plaintiff . Defendant . Counsel for Defendant You are directed to appear for a hearing to take testimony on the outstanding issues in the above captioned divorce proceedings at the Office of the Divorce Master, 9 North Hanover Street, Carlisle, Pennsylvania, on the 26th day of January . 199B, at 9:00 a.m., at which place and time you will be given tile uPP01:tunity to present witnesses and exhibit~ in support of your case. By the Court, ~~ r:= Harold E. Sheely, Presi n .Judq'.' Date of Order and Notice: 9/29/97 By: Divorce. Master 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. Court Administrator Fourth Floor, East Wing Cumberland County Courthous~ Carlisle, PA 17013 Telephone (717) 240-6200 ~ ~ CHARLENE ROXANN HARCH, Plaintiff vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 95 - 4936 CIVIL KENNETH EUGENE HARCH, Defendant IN DIVORCE RE: Pre-Hearing Conference Memorandum DATE: Monday, September 29, 1997 Present for the Plaintiff, Charlene Roxann March, is attorney Michael A. Scherer, and present for the Defendant, Kenneth Eugene March, is attorney Harold S. Irwin, III. Mr. Scherer is here on behalf of attorney O'Brien who is on vacation. Although the local rule provides that the attorney doing the pre-hearing conference be the attorney who does the trial, Mr. Irwin indicated that he is not going to object to Mr. O'Brien subsequently trying the case. A divorce complaint was filed on September 15, 1995, raising grounds for divorce of irretrievable breakdown of the marriage. Counsel have indicated that they believe the parties will sign and file affidavits of consent. However, Mr. Irwin has indicated that he may file an amended complaint averring the separation of the parties on September 15, 1995, and file an affidavit under Section 3301(d). Wife's counsel has indicated that he believes wife will contend that the date of separation was in September of 1996. It is noted, however, that wife is the Plaintiff and she filed the complaint on september 15, 1995, which would certainly be considered in establishing when the date of separation occurred. The complaint also raised the economic issues of equitable distribution, alimony, and counsel fees and expenses. Counsel have indicated that there may be an issue with marital misconduct involving wife's alleged relationship with another man prior to the separation of the parties. The parties were married on December 16, 1972, and are the natural parents of two adult children. Wife is currently receiving spousal support in the amount of $812.50 per month which is being paid through the Cumberland County Domestic Relations Office. Wife is 41 years of age and resides at RD 1, Box ... , 303-A, Loysville, Pennsylvania 17407. Husband thinks she is residing there with a male friend. Wife is currently unemployed although the information on wife's income and expenses is vague since she has not filed an income and expense statement nor a pre-trial statement in these proceedings as directed. Mr. Scherer did indicate that her last employment was as a cleaning person and she was cleaning houses. The support proceedings attributed a minimum wage to her in computing the spousal support. Wife's educational background is unknown. She does not have any known health problems. Husband is 41 years of age and resides at 14 Cedar Street, Mt. Holly Springs, Pennsylvania, where he lives alone. He is a high school graduate and works for Appleton Papers. His net monthly income was computed to be $2,685.00. He does not have any health issues. The Master has discussed the matter of wife not filing any documents pursuant to the Master's directive and not filing an income and expense statement. Mr. Irwin is considering filing a motion with the Court for sanctions. He is also considering the possibility of having wife evaluated by a vocational expert to determine her employability and to determine what level of income she might be able to earn. The parties own a property at 14 Cedar Street, Mt. Holly Springs, Pennsylvania, where husband is currently residing. The property has been evaluated pursuant to a market analysis and a value has been placed on the property of $53,500.00. There is a mortgage on the property in favor of Signet Mortgage Company and the payoff on that mortgage is around $56,000.00 which would indicate that the property has no equity. Both counsel have said that they will agree that the property is not worth what is currently owed on the property. Mr. March is a participant in a savings plan and a retirement plan at Appleton Papers. The savings plan has around $400.00 in his account; counsel have agreed that they will use a QDRO to distribute the retirement plan. The vehicles and household tangible personal property have previously been distributed by the parties and counsel have advised that they will not use any values for that tangible property in the equitable distribution computation. On the pre-trial statement filed by husband, marital debt has been listed including the mortgage which has previously been addressed and two loans to Members 1st and a loan to Pennsylvania National Bank. According to Mr. Irwin, ~ , husband has been paying those loans since separation. The Master requests a statement of the amount due and owing at time of separation and the balance owed on those debts at hearing so appropriate credit can be applied to husband in the allocation of debt at the hearing. Mr. Scherer has inquired about whether or not a rental value claim is appropriate. Mr. Irwin indicated that the mortgage payment is around $622.00 per month. Mr. Scherer can submit testimony on the rental value claim if, in fact, he can show that the rental value would be in excess of the amount of the mortgage payment. The $622.00 represents payment on account of principal and interest. Mr. Irwin indicated that there are also payments into escrow in the amount of $100.00 per month to be applied toward taxes and insurance. The Master has indicated that he is not going to separate the hearing into two parts to take testimony on date of separation and marital misconduct but will rather schedule one hearing to consider all issues including the claims for equitable distribution, alimony, and counsel fees. In the meantime, Mr. Irwin has stated that he may be filing a motion with the Court for sanctions as well as a request for wife to submit to a vocational evaluation. Mr. Irwin may also decide to file a claim on behalf of his client for counsel fees and costs. Mr. Irwin also has indicated that he may file an amended complaint averring that the parties have been separated for a period in excess of two years and file an affidavit under section 3301(d). The Master requests that Mr. Irwin keep the Master advised of whatever he files in this case and copy the Master with any motions and orders of court which arise out of those motions. A hearing is scheduled for Monday, January 26, 1998, at 9:00 a.m. Notices will be sent to counsel and the parties. E. Robert Elicker, II Divorce Master cc: Robert L. O'Brien Attorney for Plaintiff Harold S. Irwin, III Attorney for Defendant HAIlOLD I. IIlWIN, III, EIQUIIlE ATTOIlNEY ID NO. ZIIZI 31 UIT HIGH ITIlEET CAIlLIILE 'A 17IU (717) ZoU-I... ATTOIlNEY 'Oil DEFENDANT CHARLENE ROXANN MARCH,: IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION - LAW KENNETH EUGENE MARCH, : NO. 95 - 4936 CIVIL TERM Defendant : IN DIVORCE DEFENDANT'S PRE-TRIAL STATEMENT NOW comes the defendant, by his attomey, Harold S. Irwin, III, Esquire, and presents this pre-trial statement, representing as follows: 1. ASSETS: Defendant believes and therefor avers that the assets of the parties are as attached on Exhibit "A", the contents of which are incorporated herein by reference. Defendant has not listed the parties' fumiture, household goods or other personal property since he believes that the parties have already effected an equitable distribution of those items when the plaintiff vacated the marital home. 2. EXPERT WITNESS: The defendant anticipates that the parties will be able to stipulate as to the value of the marital residence and pension, if necessary. 3. OTHER WITNESSES: The defendant may wish to call witnesses on the issue of the divorce of the parties, the date of their separation, the earning capacity of the plaintiff and other issues related to this action if these issues are contested. Defendant reserves the right to provide a list of prospective witnesses, other than himself, at such time as the matter is ready to proceed. 4. EXHIBITS: The market analysis of the marital residence will be offered by the defendant, as well as the 1996 year end mortgage balance statement from Signet Mortgage Corporation. Defendant may wish to utilize other bank statements and invoices or bills to document other asset values or debt amounts if necessary. Defendant will supply a copy of the 1996 income tax return, if relevant. If it becomes necessary to obtain an appraisal of the defendant's pension, it will also be used as an exhibit. However, due to defendant's proposal that the parties enter into a aDRO with respect to the pension, defendant believes that an appraisal will not be necessary and will submit documentation from his employer as to his pension at the time of the hearing. Defendant reserves the right to provide a list of prospective exhibits, other than as mentioned herein, at such time as the matter is ready to proceed. 5. GROSS INCOME: Defendant is employed by Appleton Papers, Inc. with a monthly net income of $2,685.00. He is currently paying spousal support to the plaintiff based on minimum wage calculations for plaintiff, who remains unemployed to defendant's knowledge. Defendant is also paying all marital debt of the parties. Defendant believes that defendant has an earning capacity greater than minimum wage but has voluntarily elected to remain unemployed. 6. EXPENSES: Defendant will provide the Master and the plaintiff with an itemized expense statement, if any, prior to the hearing in this matter. At this time, defendant intends to assert that because of plaintiff's eaming capacity and defendant's assumption of marital debt, plaintiff's claims for alimony pendente lite, interim counsel fees, costs, expenses and attorney fees are unwarranted. Defendant will request that all expenses for any required appraisals be equally divided between the parties. 7. PENSION: Defendant has pension or retirement benefits through his employment. As stated above, an evaluation of these benefits has not beBn ordered since defendant is proposing a aDRO to resolve this iotem of property. Copies of the emploter's documentation of the pension, previously provided to plaintiff's counsel, can be provided to the Master at the time of the hearing. 8. COUNSEL FEES: Plaintiff has requested, among other things, an award of counsel fees. At this time, defendant intends to assert that because of plaintiff's eaming capacity, defendant's assumption of marital debt and her obvious ability to retain counsel to date, her claims for interim counsel fees and attomey fees are unwarranted. 9. DISPUTED PERSONAL PROPERTY: Defendant is unaware of any dispute as to any items of personal property. At the time plaintiff vacated the marital home or subsequently thereto, plaintiff removed various items of personal property which she retains. None of the parties' fumiture or household goods or other personal property has been listed in defendant's attached inventory due to the equitable division that has already occurred with these assets. 10. MARITAL DEBTS: The parties' marital debts are as attached on Exhibit "B", the contents of which are incorporated herein by reference. 11. PROPOSED RESOLUTION: Since the market analysis done on the mari:11 home reveals a value of $53,500.00 and the parties year-end mortgage balance was $56,287.59, defendant proposes that the marital home which he occupies be transferred to him, with defendant also maintaining full responsibility for the parties' joint mortgage. Defendant asserts that the parties personal property of any significant value has already been distributed by mutual agreement of the parties, except for defendant's pension and savings plan. Defendant proposes that the parties enter into a CDRO as to defendant's pension benefits and that he retain the savings plan. Further, defendant proposes that in lieu of any claim for alimony pendente lite or alimony, no payment be made to him by plaintiff on the difference between the mortgage and the value of the home and that he continue to pay the other marital debts of the parties. The expenses of any appraisals should be shared equally and otherwise each party should be responsible for their own expenses, costs and attorney fees. HAROLD S. IRWIN, III Attorney for defenda July 11,1997 NO. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 INVENTORY OF MARITAL PROPERTY OWNERS VALUE 53,500.00 463.62 Joint Defendant Defendant EXIIIBIT "A" MARITAL DEBTS NO. I 2 3 4 5 6 7 8 9 10 DESCRIPTION Marital Home Loan Loan Loan DATE 90-91 92 97 97 DEBTOR Joint Defendant Defendant Defendant CREDITOR Si net Mt Members I't Members I't Pa Natl Bank EXHIBIT "B" BALANCE 56,287.59 6,100.00 800.00 2,000.00 PA VME 622 242 89 COMMONWULTH OF PBNN8VLVANIA COUNTY OF CUM.BRLAND CHARLBNB R~XANN MARCH, PlalntlH I CIVIL ACTION. LAW Y. : NO. 95 . 4936 CIVIL TI!RM I IN DIVORCB KI!NNI!TH I!UOI!NI! MARCH Defendant SUBPOENA TO ATTEND AND TESTIFY To Jack Lang, a.k.a. Jack Lortz. Jr.: 1. You are ordered by the Court to come to the Law Office of O'Brien, Baric and Scherer, 17 West South Street, Carlisle. Pennsylvania on the 8th day of March, 2000 at 10 a.m. to give swom testimony in the form of a deposition and remain until excused. 2. And bring with you the following: a) copies of all bank statements in your possession or control or in the possession of your attorney for the years 1996, 1997, 1998 and 1999; b) copies of all vehicle or mobile home titles in your possession or control or in the possession of your attomey, c); copies of all loan documents on which you were the obligor or co-obligor in your possession or control or in the possession of your attorney dating back to January, 1996; d) copies of the beneficiary designation page on all life insurance policies for which you are the insured; e) copies of all real estate tax receipts or bills in your possession or control or in the possession or control of your .atto,!,ey. . . If you fail to appear or to produce the documents or things required by this subpoena, you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure. including but not limited to costs, attorney's fees, and imprisonment. Requested by: Date: (Yl~ ILr t.. ~ ;:} (Joe) , BY THE COURT. By Js / f1/)-i.A'.J J). ~ I , prothonot~ ~()~ 0 r cnl07~~~ q5~4q3v Return of ServIce On the 41L day of }b ",r ~ . '2.Dco ,I, w.lt.,. Ii. c;/tyu-, served (name of person served) ::fu, h /""", . aJif, J:.<./(Ludi ~ with the foregoing subpoena by (deSCrl~ method of service): ' 1~1 '!f:~..c ~~~1 jDJ///~a~:,~~~t;b~77~ (~-f ~ I verify that the statements in this return of service are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. 4904 relating to unswom falsification to authorities. Date: )ti(~ ~f!.t;~.. ... ~ t-; C". ~: -) U.lc: 9 '-)~ o. == ~) ::: -., '...- ....: .- '.':i ..~~ ( I ~ . ,.>- .l" r- .'ff) , ," I J2 ... ~z l.. a.: '.'lOU . r ~J u.. ::c '" -. '=> 1 U 0 G y~ -i 0U.~t('" NOTAIlIAl SEAl ltt 1 CAHIW NOTAIlI'MlC CMlISl{ BORO. CUMBERlAIID co. .. MY COMMISSIO/j EXPIRES SEPT . have agreed on allocating benefits accrued under the Plan as of Seotember 15. 1995 ("Allocation Date"). 2. Disoosition of Pension Benefits: a. AP Interest: It is ordered that Charlene R. March ("Altemate Payee") be allocated a 50% interest ("AP Interest") in the Actuarial Value of the Participant's normal retirement benefit in the Plan accrued as of the Allocation Date. No benefits will be payable to the Altemate Payee if the Participant terminates participation in the Pension Plan prior to the vesting (5 Years of Service). The AP Interest will include the number and term of payments provided under the form of benefit described in this Order or otherwise elected by the Altemate Payee. b. Form of Benefit: Unless the Alternate Payee elects to receive an altemate benefit available under the Plan, the AP Interest will be paid as an Actuarially Equivalent single life annuity on the life of the Alternate Payee, adjusted for Early Retirement or other factors applied under the Plan, to commence as of January 5, 2019. Any election by Altemate Payee of alternate benefits must be made in the forms and at the times specified in the Plan. Benefit election and commencement dates will be based on the age of the Participant. Alternate Payee may not name a subsequent spouse as a Contingent Annuitant. c. Subsidized Earlv Commencement Factors: If the Participant retires early and is eligible for subsidized early commencement factors in accordance with the provisions of the Pension Plan, the Alternate Payee will be entitled to share on a actuarially adjusted pro rata basis (based on the Actuarial Value of the AP Interest) in such subsidized early commencement factors taking into account any payments already made. 3. General Conditions: a. Remarriaoe: The subsequent remarriage of either party shall not affect the dispositions described in Paragraph 2. b. Terms used in this Order shall have the same Terms: meanings as in the Plan, unless the context requires otherwise. c. Names and Social Security Numbers: The Participant's address and social security are: KENNETH E. MARCH 14 CEDAR STREET MOUNT HOLLY SPRINGS, PA 17065 SS #182-46-3366 The Alternate Payee's address and social security number are: CHARLENE A. MARCH ONE WtLBERT DRIVE CARLISLE, PA 17013 SS# a09 - ~U - 03'75" f j , ! , , I Participant and Alternate Payee will provide the Plan Administrator with notice, as provided in the Plan, of any changes in their names or mailing address( es). d. Death of Alternate Payee Before Benefits Commence: In the event of the death of the Alternate Payee prior to date on which payments of the retirement benefit allocated to Alternate Payee in Paragraph 2 are scheduled to commence, the Pension Plan shall have no liability to pay any benefits assigned to the Altemative Payee by the Order. e. . Qualified Domestic Relations Order: It is the intention of the Alternate Payee and the Participant that this Order shall qualify as a Qualified Domestic Relations Order within the meaning of Section 414(p) of the Code and Section 206(d)(3)(B) of the Employee Retirement Incorne Security Act of 1974, as amended (hereinafter "ERISA"), and that whenever the provisions hereof are inconsistent with the definition of a Qualified Domestic Relations Order as may be contained from time to time in the Code or ERISA, this Order shall be amended, from time to time, as may be required to comply with the requirements for Qualified Domestic . so ORDERED this -' ,~ day of June 200_. J. APPROVED: Ch.MQ~ Rl ~ Charlene R. March, Plaintiff .K o..,..,t tI<< ;17t1A/U Kenneth E. March, Defendant ..