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HomeMy WebLinkAbout95-5350 civilCARL R. BRUAW, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : NO. 95-5350 CIVIL : NANCY BRUAW, : IN REPLEVIN Defendant : ORDER OF COURT AND NOW, June 8, 1999, after careful consideration of oral argument, prior testimony heard by the Court and briefs submitted by the parties, the Court holds as follows: 1. IN RE: DAVID BRUAW'S MOTION FOR JOINDER Pursuant to The Cumberland County Rules of Court, rule 210-7, any issue raised but not briefed is deemed abandoned. The moving party, David Bruaw, failed to submit a brief. Mr. Bruaw failed to appear at oral argument held in this matter. David Bruaw's Motion for Joinder is deemed abandoned and, therefore, denied. 2. IN RE: DAVID BRUAW'S UNAUTHORIZED PRACTICE OF LAW The Court finds that the issue of David Bruaw's unauthorized practice of law is rendered moot. Ronald Bruaw asked not to be joined as a party. David Bruaw did not practice law on behalf of Ronald Bruaw. 3. IN RE: DEFENDANT'S PETITION FOR LEAVE TO AMEND Defendant's Petition for Leave to Amend her Answer to Plaintiff's Complaint is denied. Leave to amend a pleading is a matter within the discretion of the trial court. Schaffer v. Larzelere, 410 Pa. 402, 406, 189 A.2d 267, 270, (1963). A court should not allow amendment "where there is prejudice or surprise to the opposing party." Stempler v. Frankford Trust Co., 365 Pa. Super. 305, 312, 529 A.2d 521,524, (1987). In testimony before this Court, Defendant admitted that the safe deposit box in her name contained items owned by her father, Plaintiff, and that she removed items belonging to her father from his home when she moved out of the house. Permitting Defendant to amend her answer to use the statute of limitations to establish her ownership of items she previously admitted were her father's would contradict the evidence presented at trial and unfairly prejudice Plaintiff. The Complaint in this case was filed in 1995. Defendant had sole possession of the items in 2 question and access to the safe deposit box which contained the note that Defendant now wishes to use as a basis for amending her answer. The Court determines that it is too late. Therefore, Defendant's Petition for Leave to Amend is denied. 4. IN RE: THE REPLEVIN ACTION The Court finds that ownership of all items contested by the parties is to be according to the distribution schedule attached to this order. By the Court, David Bruaw 693 Saw Mill Road Mechanicsburg, PA 17055 Pro se Richard Gaffney, II, Esquire 28 South Pitt Street Carlisle, PA 17013 For the Plaintiff John M. Ogden, Esquire Rhoads & Sinon LLP 119 East Market Street York, PA 17401-1278 For the Defendant 3 CARL R. BRUAW, · IN THE COURT OF COMMON PLEAS OF Plaintiff 'CUMBERLAND COUNTY, PENNSYLVANIA v. ' NO. 95-5350 CIVIL NANCY BRUAW, ' IN REPLEVIN Defendant . DISTRIBUTION SCHEDULE 1. Defendant is ordered to return to Plaintiff all items in the safe deposit box titled in Defendant's name.~ 2. The original life insurance policy documents for Met Life Policy No. 7-551-607- C belonging to Carl R. Bruaw, Insured, naming Nancy Bruaw as beneficiary are the property of Carl R. Bruaw.2 3. As for the two two and one-half dollar gold coins, mint date 1915, the paper currency in dispute, and the two antique dolls, there is no evidence of the actual existence of the items or that Defendant actually removed them, without permission, from the home. Therefore, the Court cannot award the items to either party. 4. The Court finds that all other disputed personal property shall remain where it is currently found. Any items that Defendant took from Plaintiff's home originally ~ In trial testimony, Defendant admitted that the contents of the safe deposit box were owned by Plaintiff. See Notes to Testimony, held August 25, 1997, page 6, lines 19-21. 2 The current state of the record requires us to return the life insurance policy to Plaintiff. However, if there is an attempt to change the beneficiary of the policy, Defendant can raise the issue of Plaintiff's alleged incompetence at that time. belonged to Defendant or are items of no value that have been lost or discarded.