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HomeMy WebLinkAbout95-5894 CivilMARY ELLEN FAILOR, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : CIVIL ACTION - LAW : DONALD G. EPPLEY, SR., : Defendant : NO. 94-5894 CIVIL TERM MARY ELLEN FAILOR, : IN THE COURT OF COMMON PLEAS OF Plaintiff: CUMBERLAND COUNTY, PENNSYLVANIA : v. : CIVIL ACTION - EQUITY : DONALD G. EPPLEY, SR., : Defendant : NO. 95-1768 EQUITY TERM IN RE: DEFENDANT'S PETITION FOR RELIEF UNDER 23 PA. C.S. 53306; DEFENDANT'S PETITION FOR SPECIAL RELIEF [FOR VACATION OF PREMISES]; DEFENDANT'S PETITION FOR SPECIAL RELIEF [FOR COSTS AND ATTORNEY'S FEES]; and PLAINTIFF'S REQUEST FOR PRELIMINARY INJUNCTION BEFORE OLER, J. ORDER OF COURT AND NOW, this I~day of June, 1995, upon consideration of Defendant's Petition for Relief under 23 Pa. C.S. §3306, Defendant's Petition for Special Relief [for vacation of premises], Defendant's Petition for Special Relief [for costs and attorney's fees], and Plaintiff's request for a preliminary injunction, following a hearing and for the reasons stated in the accompanying Opinion, it is ORDERED and DECREED as follows: 1. Defendant's request for a determination of the non- existence of a marriage between the parties is GRANTED, and Plaintiff's complaint in divorce at No. 94-5894 Civil Term is DISMISSED; 2. Defendant's request for an order of vacation at No. 94- 5894 Civil Term is GRANTED, and Defendant is given 60 days within which to withdraw from the premises at 135 South West Street, Carlisle, Cumberland County, Pennsylvania; 3. Defendant's request for costs and counsel fees at No. 94- 5894 Civil Term is DENIED; and 4. Plaintiff's request for a preliminary injunction at No. 95-1768 Equity Term is DENIED. BY THE COURT, Samuel W. Milkes, Esq. Attorney for Plaintiff Bradley L. Griffie, Esq. Attorney for Defendant :rc MARY ELLEN FAILOR, : IN THE COURT OF COMMON PLEAS OF Plaintiff: CUMBERLAND COUNTY, PENNSYLVANIA : v. : CIVIL ACTION - LAW : DONALD G. EPPLEY, SR., : Defendant : NO. 94-5894 CIVIL TERM MARY ELLEN FAILOR, : IN THE COURT OF COMMON PLEAS OF Plaintiff: CUMBERLAND COUNTY, PENNSYLVANIA : v. : CIVIL ACTION - EQUITY : DONALD G. EPPLEY, SR., : Defendant : NO. 95-1768 EQUITY TERM IN RE: DEFENDANT'S PETITION FOR RELIEF UNDER 23 PA. C.S. ~3306; DEFENDANT'S PETITION FOR SPECIAL RELIEF [FOR VACATION OF PREMISES]; DEFENDANT'S PETITION FOR SPECIAL RELIEF [FOR COSTS AND ATTORNEY'S FEES]; and PLAINTIFF'S REQUEST FOR PRELIMINARY INJUNCTION BEFORE OLER, J. OPINION and ORDER OF COURT Oler, J. The present actions in divorce and for equitable relief arise out of a relationship between the parties which began in 1981 and culminated in separation in 1994. In the divorce action, Plaintiff asserts the existence of a common law marriage between her and Defendant. In the equity action, in the alternative, Plaintiff asserts an ownership interest, based on a contract implied in fact or in law, in certain realty and personalty titled in Defendant's name. For disposition at this time are three petitions of Defendant in the divorce action and one request of Plaintiff in the equity action. Defendant's petitions in the divorce action seek (a) a determination pursuant to Section 3306 of the Divorce Code that no NO. 94-5894 CIVIL TERM NO. 95-1768 EQUITY TERM marriage exists between the parties, (b) a direction that Plaintiff vacate certain premises owned by Defendant, and (c) an award of costs and counsel fees on grounds of allegedly vexatious litigation. Plaintiff's request in the equity action is for a preliminary injunction to prevent disposition of property alleged to be partly owned by her and to prevent her eviction from the aforesaid premises. A hearing was held on Friday, February 10, 1995, and Wednesday, May 10, 1995. For the reasons stated in this Opinion, Defendant's petition requesting a determination that no marriage exists between the parties will be granted, Defendant's petition seeking Plaintiff's withdrawal from premises owned by him will be granted, Defendant's petition seeking costs and counsel fees will be denied, and Plaintiff's request for a preliminary injunction will be denied. STATEMENT OF FACTS Plaintiff is Mary Ellen Failor, a 56-year-old woman residing at 135 South West Street, Carlisle, Cumberland County, Pennsylvania.~ Defendant is Donald G. Eppley, Sr., a 55-year-old man residing at 522 Thornwood Lane, Carlisle, Cumberland County, ~ Vol. I, N.T. 27, 78, Hearing, February 10, 1995 (hereinafter Vol. I, N.T. __). 2 NO. 94-5894 CIVIL TERM NO. 95-1768 EQUITY TERM Pennsylvania.2 The parties became romantically involved and began living together in November of 1981, at Plaintiff's residence at 26½ East Louther Street, Carlisle, Cumberland County, Pennsylvania.3 Around May of 1983, they moved to a home owned by Defendant at 135 South West Street, Carlisle, where they remained together until September 13, 1994.4 On September 13, 1994, the parties separated, with Plaintiff remaining at 135 South West Street, Carlisle, where she still resides, and Defendant eventually taking up residence at 522 Thornwood Lane, Carlisle, with a Sondra Jean Goodling.5 Both parties were married when they met. Plaintiff was divorced from Robert E. Failor, Sr., on November 2, 1983.6 Defendant was divorced from Doras A. Eppley on February 8, 1984.7 Plaintiff has been employed at Dickinson College in Carlisle in the food service department for 18 or 19 years.8 Her annual 2 Vol I, N.T. 111; Vol. II, N.T. 36-37, Hearing, May 10, 1995 (hereinafter Vol. II, N.T. __); Defendant's Exhibit 1. Vol. I, N.T. 28, 32. Vol. I, N.T. 27-29, 120. Vol. I, N.T. 27-28, 111; Vol. II, N.T. 36-37. Vol. I, N.T. 30-32; Plaintiff's Exhibit 29. ? Defendant's Exhibit 1; Plaintiff's Exhibit 1. Vol. I, N.T. 11. 3 NO. 94-5894 CIVIL TERM NO. 95-1768 EQUITY TERM salary is $19,000.9 Defendant has been a laborer for at least 23 years.~° His annual salary is between $19,000 and $20,000.~ The parties' financial arrangements when they lived together were that Plaintiff would pay the household expenses,~2 such as utilities, and Defendant would pay other expenses, such as the mortgage.~3 Plaintiff contributed some modest improvements to the home; the parties planned to retire together; and in the event that Defendant predeceased Plaintiff it was anticipated that she would continue to reside in the home if she remained unmarried.TM Plaintiff testified that she felt that she was married to Defendant "ever since [she] started dating him."~s A daughter, who lived for only a few days, was born to the parties on January 1, 1983,~6 and Plaintiff testified that particularly from that time she "considered [herself] married to him.''~7 Defendant, on the other Vol. II, N.T. 98. Defendant's Exhibit 1. Vol. II, N.T. 17. Vol. I, N.T. 33-34. Vol. I, N.T. 115. Vol. I, N.T. 34; Vol. II, N.T. 102-03. Vol. I, N.T. 65. Vol. I, N.T. 55. Vol. I, N.T. 59. 4 NO. 94-5894 CIVIL TERM NO. 95-1768 EQUITY TERM hand, had been embittered by his marriage to Doras A. Eppley,~8 and made no secret of his resolution never to remarry.~9 In brief, Plaintiff felt that Defendant "was the man of [her] life and that was the way it was going to be."2° "In my heart," she testified, "I felt I was married.''2~ However, until the parties separated she was unaware of the possibility of a common law marriage and thought that one needed a license and official ceremony in order to be married.~ Defendant, for his part, remained opposed to the institution of marriage throughout their relationship,TM never felt that he was married to Plaintiff,~4 and, as did Plaintiff, thought that a marriage license was necessary for a legal marriage.2s In support of the existence of a common law marriage in this case, Plaintiff presented evidence tending to show that Plaintiff's supervisor at work assumed from seeing the parties together that Vol. I, N.T. 113-14; Vol. II, N.T. 57. Vol. I, N.T. 87, 114-15. Vol. I, N.T. 60. Vol. I, N.T. 73; see Vol. II, N.T. 11. Vol. I, N.T. 75-76. Vol. I, N.T. 114-15. Vol. I, N.T. 131; Vol. II, N.T. 11. Vol. II, N.T. 15. 5 NO. 94-5894 CIVIL TERM NO. 95-1768 EQUITY TERM they were married,26 that one of Plaintiff's co-workers "assumed they had gotten married, especially after Mary had the child and the baby died and everything and it went in Eppley's name,''27 and that this co-worker believed that most of Plaintiff's fellow employees thought she was married.28 In addition, an occasional item of mail came to the parties' residence addressed in a manner indicative of Plaintiff's being married to Defendant.29 Evidence was also presented by Plaintiff to the effect that she wore a wedding band deriving from her marriage to Robert E. Failor, Sr., after becoming involved with Defendant,3° that eventually this ring became thin, that she bought herself another ring to replace it, and that Defendant put the new ring on her finger for her.3~ In addition, the parties used the name Eppley on their child's gravestone.32 Finally, on occasion a greeting card would arrive from a Vol. I, N.T. 16. Vol. I, N.T. 22. Vol. I, N.T. 24. See, e.g., Plaintiff's Exhibits 13, 15, 17-19, 21-28. Vol. I, N.T. 26, 60. Vol. I, N.T. 60-61; Vol. II, N.T. 108-09. Plaintiff's Exhibits 46-48. 6 NO. 94-5894 CIVIL TERM NO. 95-1768 EQUITY TERM relative which would denote Plaintiff as Defendant's spouse.33 And on two occasions Plaintiff sent a spousal-type greeting card to Defendant.TM Evidence tending to negate the existence of a common law marriage between the parties included the absence at any time of an exchange of words in the present tense for the purpose of establishing the relationship of husband and wife, the absence of a practice on their part of representing themselves as husband and wife, and the awareness of various people familiar with their situation that they were unmarried. With respect to an exchange of words in the present tense, Plaintiff was able to testify only in a negative sense: Q Has there ever been a time say since 1983 until this divorce proceeding started, has there ever been a time when Donald said to you, we are not married, I don't want to be married or anything of that sort? A He never come right out and said he didn't want to be married .... 3~ At another point in her testimony, she engaged in this exchange: Q Did you and Mr. Eppley ever discuss See, e.g., Plaintiff's Exhibits 7-8, 11, 40-42. Plaintiff's Exhibits 9-10. Vol. I, N.T. 62. She added, "He just said he didn't trust marriage." Id. 7 NO. 94-5894 CIVIL TERM NO. 95-1768 EQUITY TERM becoming married, becoming husband and wife? A We never discussed it. It was just one of those assumed things. We were planning on our future, what we were going to do when we retire. Q And you never discussed marriage? A No. When he asked me about - when I put the ring on my finger, he never objected to it.~6 On the subject of the parties' discussions of marriage, Defendant testified as follows: Q Can you remember exactly what your words were to her about marriage? A Well, I told her, you know, we were moving to my house on South West Street and if she ever talked about marriage, she could just go her way and take her belongings, and I would keep my belongings.~7 With respect to the parties' representation of themselves to others, Plaintiff testified that she generally would refer to Defendant as "Donnie" and sometimes as her "better half," and that he would call her "Honey, .... Sweetie," and "Sweet Pea.'°~8 She did not testify that they were in the habit of presenting themselves as husband and wife, and other witnesses testified that they were not. 39 Vol. I, N.T. 73. Vol. I, N.T. 115. Vol. I, N.T. 63. 8 NO. 94-5894 CIVIL TERM NO. 95-1768 EQUITY TERM With respect to the awareness of other persons of their marital status, several witnesses testified to their understanding that the parties had never married.4° In addition, the parties maintained different last names,4~ kept their assets in their own names,42 represented their statuses as unmarried in their employment records,43 and invariably filed separate tax returns as single individuals.44 The assumption of some of Plaintiff's co-workers that she and Defendant had gotten married was, in the Court's view, attributable to Plaintiff's use of a ring and her cohabitation with Defendant rather than to any representation of the parties. Plaintiff's supervisor, for instance, had never spoken with Defendant other than to say hello,4~ and when asked why he felt that parties were married responded: I saw a man come and pick up what I thought was his wife countless times, probably, and also - this may seem strange, I Vol. II, N.T. 57, 63. Vol. II, N.T. 31, 39-40, 58, 60, 62. Vol. II, N.T. 27, 111. Vol. I, N.T. 71-72, 120, 122. Vol. I, N.T. 64; Defendant's Exhibit 1. Vol. I, N.T. 64, 121. Vol. I, N.T. 15. 9 NO. 94-5894 CIVIL TERM NO. 95-1768 EQUITY TERM received a Christmas card from Mary and Don and just assumed they were married.46 The other co-worker who testified reported that "[t]hey seemed like the perfect married couple."47 Q So you seen them out a lot, and that made you think they were married, and that's why you felt that way. A Uh-huh.48 The occasional item of mail addressed in a manner indicating a spousal relationship between the parties was the exception rather 49 than the rule, was often from an impersonal or uninformed source such as a country music fan club, a geographically distant acquaintance, or a child,5° and was more indicative of a lack of familiarity with the parties than their reputation in the community. Similarly, several cards from one of Defendant's daughters suggestive, by address or greeting, of a spousal relationship between the parties were addressed in that manner to expedite the mail,5~ were the exception rather than the rule as to Vol. I, N.T. 16. Vol. I, N.T. 21. Vol. I, N.T. 25. Vol. II, N.T. 8. See, e.g., Plaintiff's Exhibits 15, 19, 23-28, 39. Vol. II, N.T. 24. 10 NO. 94-5894 CIVIL TERM NO. 95-1768 EQUITY TERM her communications,52 and did not represent an actual belief on her part that the parties were married.53 The two cards of a spousal type given by Plaintiff to Defendant during the course of their 13- year relationship were, in the Court's view, of an idealistic nature. With regard to the Plaintiff's practice of wearing a wedding ring during the parties' relationship, neither the initial band nor its replacement was given to Plaintiff by Defendant,~4 Plaintiff's practice began years before the parties could have been married to each other legally,~ and no vows were exchanged when the replacement ring was put on.~6 Finally, the parties' use of the name Eppley on the gravestone of their infant daughter, Donna s2 Vol. II, N.T. 24-26. 53 Vol. II, N.T. 31-32, 35. A different interpretation may be placed on a card sent to Plaintiff in 1994 by Defendant's mother. Plaintiff's Exhibit 42; Vol. I, N.T. 50-51. This card was inscribed "For a Daughter-in-law Who's Special," and Defendant's mother seemed to concede eventually in her testimony that she had thought Plaintiff and her son were married because of "the way they acted." Id., N.T. 91. On the other hand, Plaintiff conceded that she could not recall the parties ever talking with Defendant's parents about their marital status. Id., N.T. 52. It does not appear that the impression of Defendant's mother was the product of any representation of the parties. Vol. I, N.T. 61, 119; Vol. II, N.T. 108-09. Vol. I, N.T. 60. Vol. I, N.T. 61. 11 NO. 94-5894 CIVIL TERM NO. 95-1768 EQUITY TERM M[arie], with the names Donald G. and Mary F. above as her parents, and the words "Together Forever," cannot be construed fairly as a representation or understanding of the parties that they were married, in the Court's view.57 STATEMENT OF LAW Common law marriage. It is the general policy in this Commonwealth to accept common law marriage; however, common law marriages are "to be tolerated and not encouraged." In re Estate of Stauffer, 504 Pa. 626, 629, 476 A.2d 354, 356 (1984). "Our courts have regarded common-law marriage as a fruitful source of fraud and perjury and, thus, the law imposes a heavy burden on one who grounds a claim upon the existence of a common law marriage." In re Cummings Estate, 330 Pa. Super. 255, 265 n.3, 479 A.2d 537, 542-43 n.3 (1984); see Van Brakle v. Lanauze, 293 Pa. Super. 276, 280, 438 A.2d 992, 994 (1981). "When an attempt is made to establish a marriage without the usual formalities, a court is required to examine the purported marriage contract with great scrutiny." In re Estate of Dodge, 361 Pa. Super. 188, 191, 522 57 Plaintiff's Exhibits 47-48. At the time of the child's birth and death in 1983, the parties could not have been legally married, although the gravestone was installed in 1985, when impediments had been removed. Vol. I, N.T. 55-56. In finding as it has, the Court is aware that Plaintiff signed the purchase order for the gravestone "Mary Eppley," but believes that the signature was more an expression of propriety at a very difficult time than a declaration of marriage. Plaintiff's Exhibit 46. 12 NO. 94-5894 CIVIL TERM NO. 95-1768 EQUITY TERM A.2d 77, 79 (1987); see Estate of Gavula, 490 Pa. 535, 541, 417 A.2d 168, 171 (1980); In re: Estate of Fayetta M. Clayton, 36 Cumberland L.J. 445 (1986) (Bayley, J.). In Manfredi Estate, 399 Pa. 285, 159 A.2d 697 (1960), the Pennsylvania Supreme Court discussed the differences between a statutory marriage and common law marriage, and set forth the elements of the latter. Marriage in Pennsylvania is a civil contract by which a man and woman take each other for husband and wife. There are two kinds of marriage: (1) ceremonial; and (2) common law. A ceremonial marriage is a wedding or marriage performed by a religious or civil authority with the usual or customary ceremony or formalities. It is too often forgotten that a common law marriage is a marriage by the express agreement of the parties without ceremony, and almost invariably without a witness, by words - not in futuro or in postea, but - in praesenti, uttered with a view and for the purpose of establishing the relationship of husband and wife. Because it is often difficult to prove a common law marriage by words in praesenti, the law has created or raised a rebuttable presumption of marriage where two absolutely essential elements are conjoined and co-exist - constant, as distinguished from an irregular or inconstant, cohabitation plus a reputation of marriage, which is not partial or divided but is broad and general. Constant cohabitation, even when conjoined with general reputation, are not marriage, they are merely circumstances which give rise to a rebuttable presumption of marriage. Manfredi Estate, 399 Pa. 285, 291, 159 A.2d 697, 700 (1960) 13 NO. 94-5894 CIVIL TERM NO. 95-1768 EQUITY TERM (citations omitted). "An essential element for a common law marriage is intent to establish a marital relationship. Evidence of intent may consist of words uttered in the present tense for the purpose of establishing the relation of husband and wife. Cohabitation and reputation of marriage do not alone create a marriage. They are only mere circumstances from which a marriage may be inferred and rebutted by other facts and circumstances." Canute v. Canute, 384 Pa. Super. 60, 63-64, 557 A.2d 772, 774 (1989) (lower court's finding of common law marriage held reversible error in spousal support case). "To create a common-law marriage," the Superior Court has stated, "there must be 'an exchange of words in the present tense, verba de praesenti, spoken with the specific purpose that the legal relationship of husband and wife be thereby created.' Because it is hard to prove such verba de praesenti, there is a rebuttable presumption of marriage where two essential elements exist: constant, not irregular or inconstant, cohabitation plus a broad and general, not partial or divided, reputation of marriage." Commonwealth v. McLean, 387 Pa. Super. 354, 364, 564 A.2d 216, 220- 14 NO. 94-5894 CIVIL TERM NO. 95-1768 EQUITY TERM 21 (1989) (citations omitted),s8 The Superior Court has more recently enunciated the principles applicable to common law marital status in the following terms: In Pennsylvania, a common law marriage is a marriage by express agreement of the parties without ceremony, and usually without a witness, and verba de praesenti, uttered with the purpose of establishing a relation of husband and wife. However, common law marriage will still be recognized without use of verba de praesenti, where the intention of the parties as expressed by their words, is that they were married. While cohabitation and reputation alone will not suffice to establish a common law marriage, they are relevant factors which a court may consider in determining whether the parties have entered into a common law marriage. Cannv. Cann, 429 Pa. Super. 234, 239-40, 632 A.2d 322, 325 (1993) 58 Judge Bayley of this Court has expressed the rule as to common law marriage in Pennsylvania as follows: [T]he law requires words of intent to prove a common-law marriage although, where no such direct proof is available, the law permits a finding of marriage based upon reputation and cohabitation when established by satisfactory proof, because such evidence circumstantially proves that there were words of intent as' reflected by the parties later conduct. Accordingly, if the circumstantial evidence of cohabitation and reputation is strong enough, it may support a finding that words of intent were uttered in a situation revealing the intention of parties to be married. In re: Estate of Fayetta M. Clayton, 36 Cumberland L.J. 445, 450 (1986). 15 NO. 94-5894 CIVIL TERM NO. 95-1768 EQUITY TERM (citations omitted). Finally, it is the rule in Pennsylvania that, '[w]here a relationship is meretricious at its inception, there must be clear evidence of a change in status to rebut the presumption that the non-marriage continued after the impediment to the marriage was removed.' Steadman v. Turner, 357 Pa. Super. 361, 365, 516 A.2d 21, 23 (1986). In making this determination, the court may only look to instances occurring after the impediment to the marriage was removed in finding a common law marriage. Cannv. Cann, 429 Pa. Super. 234, 240, 632 A.2d 322, 325 (1993). Preliminary iniunctions. The law as to preliminary injunctions in Pennsylvania has been stated by the Supreme Court as follows: Three criteria have been established for the granting of a preliminary injunction .... They are: (1) the preliminary injunction must be necessary to prevent immediate and irreparable harm which could not be compensated for by damages; (2) greater injury would result from the denial of the preliminary injunction than from the granting of it; and (3) it would operate to restore the parties to the status quo as it existed prior to the alleged wrongful conduct. In addition, to meeting all three criteria, the court must be convinced that [plaintiff's] riqht to a preliminary injunction is clear ... and general equity jurisdiction must be warranted. Committee of Seventy v. Albert, 33 Pa. Commw. 44, 49, 381A.2d 188, 190 (1977) (emphasis added). "In order to obtain a preliminary injunction, the movant must 16 NO. 94-5894 CIVIL TERM NO. 95-1768 EQUITY TERM ... 'make a strong showing that it is likely to prevail on the merits' ...." Enterra Corporation v. SGS Associates, 600 F. Supp. 678, 683 (E.D. Pa. 1985), quoting Klitzman, Klitzman & Gallagher v. Krut, 744 F.2d 955, 958-59 (3d Cir. 1984). APPLICATION OF LAW TO FACTS With respect to the existence of a common law marriage in the present case, a number of factors have led the Court to conclude that no common law marriage existed. First, the parties' relationship began at a time when legal impediments precluded the existence of a marriage between them. Second, there was at no time an express agreement between the parties by words in praesenti, uttered with a view and for the purpose of establishing the relationship of husband and wife. Third, although the parties maintained a constant cohabitation, they did not make a practice of presenting themselves as husband and wife and did not develop a general and undivided reputation as a married couple. Fourth, neither party was aware of the concept of a marriage in the absence of a license, and Defendant remained strongly opposed to the institution of marriage throughout his relationship with Plaintiff. Although the Court is sympathetic to the Plaintiff in the situation in which she finds herself, it cannot deem a marriage to have existed under the applicable principles of law recited above and the facts as found. 17 NO. 94-5894 CIVIL TERM NO. 95-1768 EQUITY TERM On the other hand, the Court does not find that Plaintiff's conduct in this action has been vexatious so as to warrant a grant of relief to Defendant on his petition seeking costs and counsel fees on that basis. With respect to Plaintiff's request for the issuance of a preliminary injunction to preclude disposition of property in Defendant's name and to prevent eviction of Plaintiff from Defendant's premises, the Court is again unable to accede to Plaintiff's position. Although the parties may have had certain plans and expectations, the evidence of a contract implied in fact or in law in connection with Defendant's property cannot be said at this point to constitute a strong showing that Plaintiff will prevail on the merits. For these reasons, the following Order will be entered: ORDER OF COURT AND NOW, this /~£~ day of June, 1995, upon consideration of Defendant's Petition for Relief under 23 Pa. C.S. ~3306, Defendant's Petition for Special Relief [for vacation of premises], Defendant's Petition for Special Relief [for costs and attorney's fees], and Plaintiff's request for a preliminary injunction, following a hearing and for the reasons stated in the accompanying Opinion, it is ORDERED and DECREED as follows: 1. Defendant's request for a determination of the non- 18 NO. 94-5894 CIVIL TERM NO. 95-1768 EQUITY TERM existence of a marriage between the parties is GRANTED, and Plaintiff's complaint in divorce at No. 94-5894 Civil Term is DISMISSED; 2. Defendant's request for an order of vacation at No. 94- 5894 Civil Term is GRANTED, and Defendant is given 60 days within which to withdraw from the premises at 135 South West Street, Carlisle, Cumberland County, Pennsylvania; 3. Defendant's request for costs and counsel fees at No. 94- 5894 Civil Term is DENIED; and 4. Plaintiff's request for a preliminary injunction at No. 95-1768 Equity Term is DENIED. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Samuel W. Milkes, Esq. Attorney for Plaintiff Bradley L. Griffie, Esq. Attorney for Defendant :rc 19