Loading...
HomeMy WebLinkAbout89-0845 CivilBEVERLY JANE CISNEROS, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW JAMES A. STONER, JR., Defendant NO. 845 CIVIL 1989 IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BEFORE BAYLEY and OLER, JJ. ORDER OF COURT AND NOW, this Z19day of November, 1993, after careful consideration of Defendant's Motion for Summary Judgment, as well as the briefs and oral argument, the Motion is DENIED. BY THE COURT, J. Wesley Ole J. James J. Kayer, Esq. 50 East High Street Carlisle, PA 17013 Attorney for Plaintiff Charles Rector, Esq.. 831 Market Street P.O. Box 222 Lemoyne, PA 17043 Attorney for Defendant rc BEVERLY JANE CISNEROS, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW JAMES A. STONER, JR., Defendant NO. 845 CIVIL 1989 IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BEFORE BAYLEY and OLER. JJ. OPINION AND ORDER OF COURT Oler, J. The present action arises out of a claim for equitable distribution of marital property as the result of a 1982 divorce. For disposition at this time is a motion for summary judgment based upon the doctrine of laches.' For the reasons stated in this Opinion, the motion must be denied. Pennsylvania Rule of Civil Procedure 1035 provides that summary judgment "shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file ... show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." In ruling on such a motion, the court is to view the record "in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party." Marks v. Tasman, 527 Pa. 132, 135, 589 A.2d 205, 206 (1991). Furthermore, "[s]ummary judgment may be entered only in cases where the right is clear and free from doubt." Hayward v. Medical Center of Beaver County, 530 Pa. 320, 324, 608 A.2d 1040, 1042 (1992). In accordance with this standard, the 1 Defendant's Motion for Summary Judgment, paragraph 12. 845 Civil 1989 facts of the case may be summarized as follows: The plaintiff is Beverly Jane Cisneros (Plaintiff), a resident of Camp Hill, Cumberland County, Pennsylvania.' The defendant, James A. Stoner, Jr. (Defendant), resides in Carlisle, Cumberland County, Pennsylvania.' The parties were married on June 7, 1958, in Harrisburg, Dauphin County, Pennsylvania.4 On May 28, 1982, the parties were divorced by the Inferior Court of Bitburg, Germany.' Defendant was not present at the hearing at which the divorce was granted, although he had been duly summoned.' As part of the divorce proceedings, plaintiff petitioned the German court for severance of any "support" arrangements. According to the Court, "any division of possible contributions made in the U.S. would be timely, and therefore the Petitioner [plaintiff herein] forgoes any such division.` At all times since the divorce in 1982, defendant has resided in Pennsylvania, ' Plaintiffs Third Amended Complaint, paragraph 1. 3 Plaintiff's Third Amended Complaint, paragraph 2. a Plaintiff's Third Amended Complaint, paragraph 3. s Plaintiff's Third Amended Complaint, paragraph 4. s Plaintiff's Third Amended Complaint, Exhibit A, at 1. 7 Plaintiff's Third Amended Complaint, Divorce Decree, Exhibit A, at 2. The "contributions made in the U.S." refers to Defendant's military pension; there is also certain personal property accumulated during the marriage that is in dispute. Plaintiff's Third Amended Complaint, paragraph 6. 845 Civil 1989 a fact of which plaintiff has been aware at all times.8 Defendant allegedly has remarried, fathered two sons, and purchased a home in Carlisle.' Plaintiff remarried in Florida several months after the divorce and returned to Germany with her new husband.10 Following a period of several months in Germany, plaintiff returned to the United States with her husband and resided at Scott Air Force Base, Illinois, for approximately four and a half years." While residing in Illinois, plaintiff sought legal counsel through the Judge Advocate General at Scott Air Force Base to determine if she could proceed with the property claim which had been left unresolved following the German divorce. 12 According to Plaintiff, she was told she could not proceed in this matter unless she established residency in Pennsylvania." At the time, plaintiff claims she had no way to return to Pennsylvania. 14 Following her (new) husband's retirement from the military, about two and a 8 Defendant's Motion for Summary Judgment, paragraph 6; Deposition of Beverly Jane Cisneros, June 7, 1991, N.T. 25 (hereinafter Cisneros Deposition, N.T. _). s Defendant's Brief in Support of Motion for Summary Judgment, page 1. 10 Defendant's Motion for Summary Judgment, paragraph 5; Cisneros Deposition, N.T. 18. 11 Cisneros Deposition, N.T. 6, 18. 1z Cisneros Deposition, N.T. 25-27. 13 Cisneros Deposition, N.T. 27. 14 Cisneros Deposition, N.T. 29. 3 845 Civil 1989 half years ago, plaintiff and he moved to Mechanicsburg," Cumberland County, Pennsylvania.18 The main purpose of the move was to pursue the present action. 17 Plaintiff commenced the instant proceedings on March 8, 1989, seeking equitable distribution, alimony pendente lite, and counsel fees.18 The counts seeking alimony pendente lite and counsel fees were dismissed by the Honorable George E. Hoffer on May 9, 1991.19 However, the claim for equitable distribution was not addressed at that time. Defendant filed the present motion for summary judgment on July 29, 1993, asserting that the German court had preserved no economic issues in its divorce decree and that an unreasonable and prejudicial delay in filing the present action has resulted in the bar of laches." "Laches is based upon a public policy whose object is the peace of society, and such public policy demands that stale claims be discouraged and that [a plaintiff] act with good faith and reasonable diligence." 14 Standard Pennsylvania Practice 2d §79:39, at 132 (1983). In order to succeed on a defense of laches, one must prove two is Plaintiff has lived in more than one location since returning to Cumberland County. Cisneros Deposition, N.T. 11. is Cisneros Deposition, N.T. 11, 41. 17 Cisneros Deposition, N.T. 12. 18 See generally Plaintiff's Complaint. " See Order of Court, May 9, 1991, 845 Civil 1989 (Cumberland Co.). 20 See generally Defendant's Motion for Summary Judgment. 4 845 Civil 1989 elements — "[f]irst, a delay arising from the other party's failure to exercise due diligence, and second, prejudice from the delay." Jackman v. Pelusi, 379 Pa. Super. 361, 368, 550 A.2d 199, 202 (1988). "[T]he question of [the] application [of the doctrine of laches] does not depend upon the fact that a certain definite time has elapsed since the cause of action occurred, but rather whether, under the circumstances of the particular case, the complaining party or parties are chargeable with want of due diligence in failing to institute or prosecute the claim." Gabster v. Mesaros, 422 Pa. 116, 119, 220 A.2d 639, 641 (1966). Additionally, with respect to the element of prejudice, it has been held that "the sort of prejudice required to raise the defense of laches is some changed condition which occurs during the period of, and in reliance on, the delay." Sprague v. Casey, 520 Pa. 38, 46, 550 A.2d 184, 188 (1988). "[T]he existence of laches is a factual issue to be decided according to the circumstances in each particular case." Jackman v. Pelusi, 379 Pa. Super. 361, 368-69, 550 A.2d 199, 202 (1988). "The burden of proof ... is upon the party asserting the defense; in order to meet this burden, the party alleging the delay must demonstrate prejudice." Lipschutz v. Lipschutz, 391 Pa. Super. 537, 546, 571 A.2d 1046, 1051 (1990). "[D]elay alone, no matter how long, does not itself establish laches." Jackman v. Pelusi, 379 Pa. Super. 361, 369, 550 A.2d 199, 203 (1988). The case of Doppler v. Doppler, 393 Pa. Super. 600, 574 A.2d 1101 (1990) presents a situation somewhat similar to the present case. In Doppler, the parties 5 845 Civil 1989 reached agreement on a partition action relating to the disposition of property pursuant to a divorce in 1964. No action was taken on this agreement as the result of the husband's failure to attend settlement, and it was never officially terminated. The husband subsequently filed a second partition action in 1984, which would have resulted in his receipt of a considerably larger sum than he would have received had he followed through with the original agreement. The Court, in striking down the husband's second partition action, held the 1964 agreement to be enforceable, noting that the husband had been guilty of extraordinary laches. Id. at 609, 574 A.2d at 1106. In the present case, even should it be assumed that laches is a defense in an action of the present type, we cannot say that, taking the facts in the light most favorable to plaintiff, there exists no issue of material fact as to whether plaintiff acted with due diligence in pursuing her claim. First, although the wording in the divorce decree granted by the German court, that "any division of possible contributions made in the U.S. would be timely and therefore the petitioner forgoes such division" is interpreted by defendant to impose an obligation upon plaintiff to seek distribution promptly upon her return to the United States, the import of this translated clause is far from clear. Second, we must accept the proposition that, when plaintiff returned to this country following the divorce, she consulted an attorney in Illinois to determine the ON 845 Civil 1989 possibility of pursuing the matter of division of property and was told that the issue could not be litigated unless she resided in Pennsylvania; as a result, she temporarily abandoned her efforts. Once financially able, she moved to Pennsylvania to initiate this litigation. Whether Plaintiff"s actions represented due diligence in pursuing her claim as a result of the 1982 divorce is an issue of material fact. Since both due diligence on the part of plaintiff and prejudice to defendant are required for laches, the granting of a summary judgment would be inappropriate on the present record. For the foregoing reasons, the following Order will be entered: ORDER OF COURT AND NOW, this ,;X/0 aay of November, 1993, after careful consideration of Defendant's Motion for Summary Judgment, as well as the briefs and oral argument, the Motion is DENIED. James J. Kayer, Esq. 50 East High Street Carlisle, PA 17013 Attorney for Plaintiff BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr. J. 7 845 Civil 1989 Charles Rector, Esq.. 831 Market Street P.O. Box 222 Lemoyne, PA 17043 Attorney for Defendant :rc