demand for reconsideration and rehearing en banc nun pro tunc · pdf filelead to many false...
TRANSCRIPT
VS. CLIMBERL-VJ) COUNTY PENNSYLVANIi:\
ROBERT E. BINGAMAN, JR., Plaintiff,
Holder of the Key(s),
KELLY H. BINGAMAN, Defendant,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 054200 CIVIL TERM
-9 El Li: 2 I
DEMAND FOR RECONSIDERATION & REHEARING EN BANC NUNC PRO TUNC FOR UNLAWFUL AND UNEQUAL DIVISION OF PROPERTY& ALIMONY PAYMENTS; AFTER RECUSAL & CHANGE OF JUDGE KEVIN A. HESS IN ACCORDS WITH RULE 37(e) FOR TRESPASSING OF LAWS BASED ON VOID JUDGMENTS IN VIOLATION OF RULE 60(B)(3-4):
AND NOW COMES, Petitioner and Relator, KELLY H. BINGAMAN, information and
facts before this Court, and one of the inherited constituents of, "We the People, All Rights
Restored and Reserved, Never Waived," Standing in Propria Persona Sui Juris, not "Pro Se".
Entering said court by Special Appearance not by General. Petitioner moves for an Order of
RECONSIDERATION by a New Judge after the RECUSAL AND CHANGE OF JUDE
KEVIN A. HESS, P.J., revisiting the unlawful & and procedural nullity denial of said
Petitioner's valid motion to Open & Vacate my VOID Divorce proceedings that was in clear
violation of current and well-established Statutory Laws of this State as rendered by this
rouge Judge on the 22nd day of July, 2013 and entered upon the record of this Court on
July 23 rd , 2013; and moves for Reconsider of said Erroneous Order, and in support thereof,
Petitioner will show the following:
1
JURISDICTION:
A court has inherent power to Reconsider its own rulings. See More vs. Moore, 535 Pa. 18,
25, 634 A. 2d 163, 167 (1993); Hutchin vs. Ludy 417 Pa. Super. 93, 108, 611 A. 2d 1280,
1288 (1992).
This Court jurisdiction over this Demand and is core to these proceedings pursuant to Rule
37(e) in conjunction with Fed. R. App. P. 40(a) and 35(b); Rule 37(e), says BASIC FOR
GRANTING — A reconsideration will be granted on Motion for the requesting party, only
when it appears that the Court OVER-LOOKED A MATERIAL FACT in the Record, a
statue or a decision which is controlling as authority and which would Require a different
Judgment from the Rendered or has erroneously construed or misapplied a provision of law
or controlling authority.
And this Petitioner puts this Court on Notice that said Petitioner is making her timely tiling
of this Demand for Reconsideration, for it is well within the (30) thirty-days as prescribed by
statutory law, being filed within 15 to 16 days of August 9 th, 2013; after the entry of the
Voided Order of the Recused Judge KEITH A. HESS, P.J., recorded on July 23 rd , 2013;
PARTIES:
The Plaintiff and his attorney of records are barred from advancing within these
proceeding for their willful and intentional to evade process and obstruct the mechanics/
machinery of Justice. The Law says, that NO MAN can benefit from his wrongs; and said
Petitioner has unlawfully deprive of any and all rights to state a proper claim before Judge's
Hess' Court, not the court as required by law and the Founding Father, a Court for the "People
2
and by the People," he is so drunken with power that it is "His Court".
BASIS FOR RELIEF:
Petitioner moves that this court is in violation of a binding Superior Court Order that had
ruled in Petitioner/Defendant and Relator's behalf that the Order of the Court was VOIDED
and that the case should have been OPENED & VACATED in Bingaman vs. Bingama., No.
1644 MDA 2008 (App. Ct. Aug. 31, 2009); and the Appellate Court Order to Reverse and
Remand for the Court to adjudicate said case and Open the Divorce since that time and give
Order of its Court in accords with the ruling of the Appellate Court and said Court Order of
July 2 2nd , 2013 render by Judge Hess, is in conflict and Contempt of Appellate ruling and
CANNOT STAND. See attached actual case Law Ruling as listed by Find Law of said
action, entered and Augmenting said Record of this Court as Defendant and Relator's
Exhibit "A".
On July 22 m1, 2013; said Judge Hess, admitted within his Order that he recognized and saw
"INTRINSIC FRAUD" that said Petitioner had sufficiently proven within her motion to Open
& Vacate the Divorce, but he was refusing to grant it because she did not allegedly prove
"Extrinsic Fraud", allegedly in accords with Pa. R. 3332. Defendant and Relator moves for
Reconsideration pursuant to 23 Pa. Cons. Stat. § 3332; for Extrinsic Fraud that is tantamount
and relates to matters collateral to the judgment which have the consequence of precluding a
"FAIR HEARING" or presentation of one side of the case. Judge Hess, knows that at all
times material to these proceedings, he and all the attorney(s) involved in these proceedings
and the Plaintiff himself have OBSTRUCTED and prevented the wheels of Justice from being
3
served upon this Defendant within his Court.
On July 22nd, 2013; Judge Hess entered a conflicting Manifestly U just order denying
the motion, in clear conflict of 23 Pa. Cons. Stat. § 3332 , for it clearly states within its body
of the law that a Divorce can be open and/or modified where there alleged that the divorce
decree was procured by "INTRINSIC FRAUD" or that new evidence relating to the cause
of action which will sustain the Attack upon its validity, [law cited in relevant part, and
omitted in part]. The law says, as In re Ridgway, 146 Ill. App. 3d 463, 497 N.E.2d (1986)
(husband stated his net worth was $357, when he actually worth close to $100,000; reopening
for Fraud); and was it not fraud when Robert told the court that he did not receive any income
from his Band membership, when in fact he was asking a potential client to pay $400 to $600
dollars per show and then failing to report to the court retirement benefits that he was
receiving from a job that he worked during our union, and the money that he took from our
son, due to my disability because our son was under age, he was receiving. Judgments have
been reopened, for other types of false statements, as in accords with Essig vs. Essig 921 S.
W. 2d 644 (Mo. Ct. app. 1996) (husband told wife she had no need for counsel, as he would
agree to divide property equally; promised was fraudulent when made; reopening an unequal
division).
The law and ruling in Hewlett vs. Hwelett, 845 S. W. 2d 717 (Mo. Ct. App. 1993); says,
"There is no minimum amount of fraud necessary to reopen a judgment and even a single
Misrepresentation can be a SUFFICIENT basis for relief if the other elements of fraud are
successfully proven." Judge Hess, admitted that Defendant & Petitioner had met her burden
4
of prove of "INTRINSIC FRAUD" and therefore, on that bases alone, he should have
granted my motion to Open and Vacate the Divorce Judgment. Said Judge failed to protect
this Petitioner Interest and to prevent her from being continuously victimized by the fraud
that was perpetrated and enacted against her within these proceedings.
Petitioner/Defendant & Relator moves that the unlawful Denial of said Motion to Open &
Vacate is a clear abuse of said Judge HESS's discretion and is VOID upon its, rendering said
Order Man Festively Unjust.
Petitioner/Defendant & Relator further asserts that the Opinion(s) and Order(s) of law of
this court is ROT with misrepresentation of Material facts, that the court even admitting on
June 20th, 2008, verified by transcripts of the court, that he never reviews the Master's report
and that "he "assumed" that this case like all others that the maters have been resolved so
I wrote down NONE". His unlawful and unfounded assumption was the proximating cause
that lead to the "financial ruins" and unlawful burdens of this Defendant &Petitioner. Despite
his clear error he refuse to correct it thereby unlawfully denying said Petitioner due process
of law, given ground to Vacation of said Judgment and Orders under the laws of VOID
judgment pursuant to rule 60(6)(3-4), and is material fact that this Court's Order was
predicated and based on VOID judgment that cannot STAND as a matter of law.
Petitioner assets that said Court of Judge Hess intentionally allowed one sided testimony
of the Plaintiff to be entered upon the record of the court when the Master submitted only
testimony of Robert E. Bingaman, Jr., after the said testimony of the Defendant & Relator was
allegedly erroneously erased by an allegedly left out plug of a broken recorder machine. That
5
lead to many false erroneous orders rendered by Judge Hess. Petitioner asserts that the yet
again, unlawful denial of Petitioner's said motion is a blatant disrespect and violation of State
and Federal laws that says, said Plaintiff have every right due to Fraud be it "INTRINSIC'
or "EXTRINSIC' has a clear and present right to relief from the Court upon sufficient and
successful showing of fraud being induce into the proceedings of the court action, and therefore
is grounds for said Judgment to be OPENED. Therefore, the opinion of said Court is erroneous,
manifestly unfair and must be overturned by way of this demand for Reconsideration.
Petitioner asserts that Judge Hess was further precluded from denying said motion filed
by said Petitioner for Intrinsic Fraud had sufficiently been proven. The law says generally
developed and applied a reasonable definition of fraud. To reopen a divorce decree on
grounds of fraud, the moving spouse must show (1) a misstatement by the defending spouse,
[the Defendant stated and proved plenty], (2) that the subject of the misrepresentation was
material to the case [ Defendant cited many inconsistent statement of the Plaintiff and his
attorney on the record of the court, and, proved by court transcript, banking information
and the like, the Defendant proved errors intentionally made by the court itself, and its
refusing to correct such wrongs, verifying fraud upon the courts]; (3) that the
misrepresentation involved a matter of fact [Plaintiff told the court that he did not receive
any band income, and his attorney confirmed that lie before the court and on record of the
court, that his attorney was retained by theft of another person(s) credit card, in which he
plead "GUILTY" to, and more, thereby misrepresenting underlying facts in these
proceedings], therefore, proving facts that the intentional undisclosed facts withheld by the
6
Plaintiff and his attorney was and the presumption and assumption and errors of the court
were so significant that it DESTROYED the overall proceedings and property division and
alimony within these SHAM divorce proceedings. See Allen vs. Allen 112 Nev. 249, 925 P.2d
(1996) ; and In re Kinnard, 512 N.W. 2d 821 (Iowa Ct. App. 1993).
Petitioner asserts that the Order of Judge Hess is clearly erroneous and inaccurate and has
clearly abused his discretion and is now RECUSED for his failings, therefore
as a matter of law and not up to the discretion
of any courts, pursuant to Orner vs. Shalala., [cite omitted] and the fundamental constitutional
guarantee that all legal proceedings is supposed to be FAIR and that one will be given notice
of the proceedings and an opportunity to be heard before the government acts to take away
one's liberty or property, by an unreasonable, arbitrary or capricious order like Judge Hess'
is; the Court of Judge Hess' have effectively and unlawfully displace and illegally obstructed
this Petitioner from receiving justice through his court and unlawfully successfully obstructed
said Petitioner from receiving any resemblance of Justice and Fair Play within these
proceedings given clear and present grounds for RECUSAL and demands for Reconsideration
for the enacted and erroneous VOIDED order(s) of the court not in appliance with law and the
rules and procedures of the Court.
Petitioner asserts that Judge Hess intentional misapplied laws and misrepresented facts
to give unlawful comfort to the Rouge Attorney whom knowingly and willfully litigated a
wrongful and fraudulent claims before the court on behalf and for his client that he knew had
and was lying and falsifying information to the courts, and that he was aiding to his
7
subterfuge and also warrants sanctions against said Judge and attorney for their unlawful acts
that are criminal in nature and clearly outside the rules of law and the courts; and acted in
violations of Congress and Constitutional law to abrogate the rights of this Petitioner by
ongoing and continual acts of order being in conflict with statutory and Constitutional laws
warranting Vacationing and Reopening of said proceedings. It is a forest and arouse for
Judge Hess to use a mere technicality to unlawfully try to attempt to deny said Petitioner from
her relief and protection the fraud continuously harming and injuring said Defendant with
his erroneous order, ignoring his fiduciary duties to prevent Constitutional and Statutory
wrongs from harming this Defendant's rights. Thus, prevailing laws upon this Court have
a duty to VACATE A VOID JUDGMENT. And pursuant to the Unclean Hands Doctrine
a Party is barred from Relief if he has engaged in any un-conscientious conduct directly
related to the transaction or matter before the Court. See DeRosa vs. Transamerica Title
Insurance Co., (1989) 213 Cal. App. 3d 1390, 12395, 260 Ca. Rptr. 370).
The Judge of the Court of Common Pleas Court has "unclean hands" and is operating
outside the rules of law and Civil domestic procedures and is not entitled to Equitable Relief
and his FRAUDULENT orders Must not STAND and must be reconsidered and over turned
by the assigned New and Impartial Judiciary that can and will follow the rules of laws. See
Alpern vs. Lieb, 38 F. 3d F. 3d 933, 935 (1994), as the judge "lacked authority," to issue
the judgment, when a judge lacks authority, the judgment becomes VOID ab initio and was
fraudulent from Day ONE, i.e., It was NULL AND VOID after the rulings of July 22 nd, 2013;
and all prior to are VOID, and at all times since. It will not ever a valid claim against this
8
Petition: and her wrongfully stolen Estate; from its conception to present date. The Law says,
that there is NO discretion to ignore the lack of jurisdiction. See Joyce vs. US, 474 F.2d 215.
This new Judge is under heavy duty to Re-consider the Order entered on July 23 rd , 2013
for the following Reasons:
Said Court has not applied the proper Standard of Review to the instant erroneous
Motion to Open & Vacate the Divorce proceedings, resulting in multiple errors. Therefore,
each of the reasons permissible by the Court for request of rehearing and reconsideration is
applicable to the current petition.
Acts in excess of judicial authority constitutes misconduct, particularly where a Judge
deliberately disregards the requirements of fairness and due process. See Cannon vs.
Commission on Judicial Qualifications, (1979 14 Cal 3d 678, 694.
This Petitioner asserts that the newly appointed Judge, he must Re-consider its Order
due to the material fact and core issue that attorney(s): have orchestrated an obvious frame
up that erroneously, unlawfully and discriminatorily have been upheld and abetted by the
the Officer and Judiciary of this Court by his blatant unfair rulings — which is manifestly
unreasonable and unfair to block the critical evidence of the Court of Common Pleas and
its transcript by the unlawful voided orders of said court.
Petitioner/Defendant asserts that this New Judiciary has a non-discretionary duty to
reconsider and overturn the unlawful Voided order of Judge Hess' June 22 nd, 2013; or said
Petitioner and Defendant will unlawfully & unreasonably continue to suffer irreparable harm
and extreme prejudice at the hands of a Court ran by the Rouge DRUNKEN WITH POWER
Judge KEVIN A. Hess and Magistrate Divorce Master ROBERT ELIKER. 9
Further, said Petitioner and Defendant has a meritorious defense and already the Superior
Court has already REVERSED AND REMANDED said case in Defendant and Relator's
favor since August 31 q, 2009; as cited above; and it was an is abuse of this Court to
continuously deny said Petitioner's Right to relief, in clear conflict and contempt of
Appellate Court rule. The rights of this Petitioner/Defendant's Alimony and Property
Division has not being rightfully adequately protected. For Judge Hess and his Court
to intentionally overlooked the false statements of the Attorney and his client, and his
intentional erroneous orders that turned this litigant's life into a Living "Financial HELL"
by equitable relief and protection of the court not been rendered. And the law provides for
"A case may be reopened .....to administer assets, to accord relief of the Petitioner. Again,
said court misapplied the rules of laws within these proceedings unlawfully to the detriment
of this Petitioner & Defendant. The above law gave rise to the New presiding Judge to re-open
the cause on her demand for reconsideration as a COLLATERAL ATTACK as it was well
within her inherited powers as granted by Congress for her to enact; See Anastasoff vs.
United States, 223 F. 3d 8989(9th Cir. 2000): against the voided judgments of the
Common Pleas Court in which she did not do, which was a clear deprivation of due
process rights and equal protection clause under the 14th Amendment of the Constitution,
that should have in accords with law to prevent & STOP unlawful enactment of litigation
abuse and erroneous orders of the Judge Hess; that facilitated multiple proceedings and
undisclosed hearings in a court of non-competent jurisdiction used as a means, a tool
and vehicle to intimidate, harass, and threaten this Petitioner, and unlawfully subjected
1 0
her sons, to mental and emotional abuse of the forced break up of their parents' marriage,
by the Sanction of an "UNROLL Y UNION" by the Court of Judge Hess, leading to the
extortion of money from this Petitioner and her ailing son, and the theft of property outside
the rule of authority and law. Rehearing of this case constitutes sufficient "cause" for
reconsideration under rule 3332 pursuant to In Re Narod, 138 B.R. 478 (E.D. Pa. 1992).
Errors of inaccuracies are grounds for Rehearing and Reconsideration.
Wherefore, the previously ordered said Petitioner/Defendant moves for said Court to
reconsider the unlawful denial of the Motion to Open and Vacate the Divorce without prejudice.
And the New Judge to enter an Order granting the reconsideration is reheard and that a hearing
to be held at the earliest possible date.
Petitioner also moves the Court for such relief as is just and proper as required by law not
by men in the premises.
MEMORANDUM OF LAWS AND AUTHORITY TO REOPEN & VACATE DIVORCES:
Lowe vs. Lowe, 817 P.2d 453 (Alaska 1991) (reopen if (1) a fundamental assumption of the
property division has been destroyed, (2) the division was poorly thought out, (3) the injured
party lacked assistance of counsel, and (4) a major marital asset was omitted; Giles vs. Giles,
652 N. E. 2d 115 (Ind. Ct. App. 1995) (trial court did not err by reopening judgment which
was based upon arguments of counsel, rather than upon evidence presented to the court);
Fechtor vs. Fechtor, 26 Mass. App. Ct. 859, 534 N.E. (1989) (judgment can be reopened to
consider tax consequences); Benitez vs. Benitez, 179 A.D. 445, 577 N.Y.2d 862 (1992)
(reopening 1984 default judgment which did not consider equitable distribution or alimony;
1 1
Husband's former counsel represented wife at trial); and Walker vs. Walker, 925 P. 2d 1305
(Wyo. 1996) (where husband failed to sign contract selling marital home in accordance with
decree, court could directly convey property to buyer; and substantive modification was
permitted under rule allowing judgment to be reopened on the basis of mistake or
MISCONDUCT). And the Superior Court had already Reversed and Remanded the erroneous
decision of this Court, all order then and thereafter, is already VOID for fraud and abuse of
discretion, pursuant to Superior Court rule Bingaman vs. Bingaman, No. 1644 MDA 2008,
(App. Ct. Aug. 31, 2009).
Affiant Victim and Witness to Criminal Activities further sayeth Naught.
Dated this 07th day of August , In the Year of Our Lord, 2013;
Respectfully Submitted,
"We the People, All Rights Restored and Reserved, Never Waived,"
Ft . LACCLY- Kel y H Bingaman, REL, any and all derivatives thereof; WITHOUT PREJUDICE, WITHOUT RECOURSE, UNLAWFULLY & FRAUDULENTLY
MADE UNWITTING SURETY OF THE STATE, UNDER DURESS:
CERTIFICATE & AFFIDAVIT OF SERVICE:
"We the People, All Rights Restored and Reserved, Never Waived, KELLY H. BINGAMAN, relator of information and facts, hereby states that the said Plaintiff, the Court
and the attorney of record as listed below have received service by certified return receipt
and U.S. Postal Mail as required in rule 4(e), a true and correct copy of this DEMAND FOR RECONSIDERATION & REHEARING EN BANC NUNC PRO TUNC FOR UNLAWFUL AND UNEQUAL DIVISION OF PROPERTY & ALIMONY; AFTER RECUSAL & CHANGE OF JUDGE KEITH A. HESS
12
IN ACCORDS WITH RULE 37(e) FOR TRESPASSING OF LAWS BASED ON VOID JUDGMENTS IN VIOLATION OF RULE 60(B)(3-4) : on or before
August 15 th , 2013, by way and through a third party uninterested party the U.S. Postal Service
by regular mail and certified return receipt;
cc:
COURT OF COMMON PLEAS OF CUMBERLAND [HAND DELIVERED]
1 COURT HOUSE SQUARE CARLISLE, PA. 17013
ATTN: OFFICE OF THE CLERK & JUDGE'S CHAMBERS
PENNSYLVANIA REPRESENTATIVE
SHERYL M. DELOZIER
2929 GERRYSBURG ROAD, SUITE 6
CAMP HILL, PA. 17011
PENNSYLVANIA SENATOR
PATRICIA H. VANCE
3806 MARKET STREET
CHAMP HILL, PA. 17011
TOWNSHIP MANAGER KEITH M. MARTIN, PRESIDENT
100 GETTYSBURG ROAD
MECHANICSBURG, PA. 17055
MAYOR JACK RITTER
36 WEST ALLEN STREET
MECHANICSBURG, PA. 17055
JOSEPH D. CARACIOLO,
FORMAN, FOREMAN & CARACIOLO
112 MARKET STREET 6TH FL.
HARRISBURG, PA. 17101
ROBERT E. BINGAMAN JR.,
386 LEWIS BERRY ROAD
NEW CUMBERLAND, PA. 170870
Dated this 07th day of August , In the Year of Our Lord, 2013;
13
Respectfully Submitted,
"We the People, All Rights Restored and Reserved, Never Waived,"
j___)-(/)( r2/Y71
Kelly H. ingaman, EX L, any and all derivatives thereof; WITHOUT PREJUDICE, WITHOUT RECOURSE, UNLAWFULLY & FRAUDULENTLY
MADE UNWITTING SURETY OF THE STATE, UNDER DURESS:
14
ROBERT E. BINGAMAN, JR., : IN THE COURT OF COMMON PLEAS OF Plaintiff/Respondent : CUMBERLAND COUNTY, PENNSYLVANIA
vs. : CIVIL ACTION — LAW : NO. 05-1200 CIVIL
KELLY M. BINGAMAN, Defendant/Movant
IN RE: MOTION TO OPEN JUDGMENT IN DIVORCE
ORDER
AND NOW, this a 2-4 day of July, 2013, the Court being satisfied that this divorce
action has been fully litigated and that the defendant's recent filings, while containing numerous
allegations of intrinsic fraud on the part of the plaintiff, do not contain properly verified
allegations of extrinsic fraud or other grounds for relief under 23 Pa.C.S. 3332, her "Motion to
Reopen Divorce Judgment" is DENIED.'
BY THE COURT,
Joseph D. Caraciolo, Esquire For the Plaintiff
Kelly Bingaman, Pro Se Defendant
:rim
We note that the Court continues to retain jurisdiction over the defendant's claim for alimony which was the subject, inter alia, of an agreement of the parties entered into on March 24, 2011.
PEN NA. STATE OF
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
No. 05-1200 Civil Term
Robert E. Bingaman, Jr.
Plaintiff
VERSUS
Kelly H. Bingaman
Defendant
DECREE IN
DIVORCE
AND NOW, 2- - , 24.00 , IT IS ORDERED AND
DECREED THAT Robert E. Bingaman, Jr. , PLAINTIFF,
, 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;
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BY TH COURT:
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PROTHONOTARY
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AND Kelly H. Bingaman
SHIPLEY ENERGY COMPANY HOURLY EMPLOYEES' PENSION PLAN
BENEFIT STATEMENT FOR ROBERT E BINGAMAN JR
AS OF: 05/01/2002
EMPLOYEE DATA
Social Security Number:
Date of Birth:
Vesting Service: Benefit Service:
189-44-8052
10/05/1954
11 Years 9.50 Years
RETIREMENT PROJECTIONS
Estimated Monthly Pension From This Plan at Normal Retirement (11/01/2019): 918 Estimated Social Security Primary Insurance Amount (11/01/2019): 1,085 Total Estimated Monthly Income: 2,003
The retirement projections assume your continued employment to your normal retirement date at your current pay level. The Social Security projection assumes employment during most of your adult lifetime. Any income amounts shown are estimates only and are based upon currently available data and currently applicable legislation. Every effort has been made to insure the accuracy of the information contained
...._ in this Benefit Statement; however, in the event of a discrepancy, actual benefits will be determined according to the Plan provisions.
shipley (;) group
04/06/04
To:
Participants of Shipley Energy Hourly Employee's Pension Plan
From:
Sheryl Norris Shipley Group
Subject:
Pension Plan Funding
Enclosed you will find a report of Your Pension Plan's Funding. The law requires that you receive this information. Your will find information the Pension Benefit Guaranty Corporation (PBGC), its guarantees, where you can get more information on the PBGC. Please contact me if you would like more information on the funding of the plan.
Sheryl A. Norris Benefits and Health Officer 717.771.1875
ROBERT E. BINGAMAN, JR., : IN THE COURT OF COMMON PLEAS OF Plaintiff
CUMBERLAND COUNTY, PENNSYLVANIA
V. ; CIVIL ACTION - LAW
NO. 05-1200 CIVIL TERM
KELT.Y H. BINGAMAN, IN DIVORCE Defendant
IN RE: TRANSCRIPT OF PROCEEDINGS
Proceedings held before the
HONORABLE KEVIN A. HESS, J.,
Cumberland County Courthouse,
Carlisle, Pennsylvania,
on Friday, June 20, 2008,
in Courtroom Number 4.
APPEARANCES:
JOSEPH CARACIOLO, Esquire For the Plaintiff
VINCENT M. MONFREDO, Esquire For the Defendant
1 MR. CARACIOLO: Good morning, Your. Honor.
2 THE COURT: Good morning.
3 MR, MONFREDO: Good morning, Your Honor.
4 THE COURT: Good morning. Is this on your
5 motion?
6
MR. MONFREDO: Yes, Your Honor.
7 THE COURT: Go ahead. It is a motion to open
8 a divorce decree, am I right?
9 MR. MONFREDO: That's correct. And as I
10 pointed out in my motion, there was a Master's report. He
11 clearly states that the alimony issue will be open and
12 preserved and it will be left on the decree in that manner.
13 And on the decree it says what issues are left open, and IL
14 says none.
15 THE COURT: And assume for the sake of your
16 argument that that was my mistake.
17 MR. MONFREDO: Yes, Your Honor.
18 THE COURT: I looked through the file, T
19 didn't see any issues, I don't read the Master's report like Streil his tlAkiricciCcd sorttont: 1i3e44t,Oroutant 1-cbc
20 that necessarily and assumed that this case was like allkxpou07
21 others that the matters have been resolved so I wrote down
22 none. That's a scrivener's error, isn't it really, and
23 shouldn't I just enter a modified decree saying that they
24 are divorced, but the issue of alimony is still open?
25 MR. MONFREDO: That will be nine, Your Honor.
2
1 THE COURT: Do you agree that that what I
2 should do?
3 MR. CARACIOLO: Actually, Your Honor, I don't
4 agree and for a few reasons. First of all, this motion was
5 filed sixty-six days after the divorce decree was entered.
6 No exceptions to the Master's recommendation were filed. No
7 appeal to the divorce was filed. Under case law they have
8 thirty days to file an appeal to this. And none of that was
9 done. Instead, sixty-six days later they filed this motion.
10 And at or around the same time my client gets a letter in
11 the mail -- or, excuse me, an email, saying that I have been
12 bank-rolled to fight this to the hilt, and I will -- let me
13 read this exactly, destitute both of us. Now Your Honor has
MakArci Otar )to maY.L.,:pc9rrrn1
14 a little familiarity with this case. 01.1
15 THE COURT: I do, I do. But I want you to
16 assume for the sake of argument the same thing I asked him
17 to assume, that this was my mistake.
18 MR. CARACIOLO: Assuming it was your mistake,
19 I believe the duty was on the defendant in the divorce to
20 file within thirty days, and she did not do that. And,
21 therefore, she should not be given the ability to go hack
22 and file sixty-six days later. And I also think that
23 looking at everything that's been happening in this case,
24 and some things that have been happening in other cases,
25 that the only reason she is doing this right now is because
3
1 she is trying maliciously to use the system to the harm of
2 Mr. Bingaman.
3 THE COURT: But everybody left the Master's
4 hearing knowing that alimony was still on the table.
5 MR. CARACIOLO: That's correct --
6 THE COURT: So nothing has changed.
7 MR. CARACIOLO: The thing that has changed is
B that she was receiving alimony up until the end of this - -
9 up until just recently because of some arrears that were on
10 the alimony. She had either spousal support or alimony
11 pendente lite. Those have now ceased. I believe she is not
12 receiving anything. So she probably then went back to her
13 attorney and said why aren't I getting anything now and
14 THE COURT: Yes, because I left the Master's
15 hearing, and we all said I was going to get alimony, didn't
le we, and then somebody looked at this decree and said, oh my
17 goodness, why did Judge Hess write none.
18 MR. CARACIOLO: But, again, I don't
19 understand why the plaintiff would be responsible tor that
20 when it was the detendant's --
21 THE COURT: Well, he is riot responsible for
22 anything. It is not that he is prejudiced in any way. He
2" is back to where he started and where he knew he was when he
24' left the Master's hearing.
25 MR. CARACIOLO: The thing that I am worried
4
1 about, Your Honor, is that if you enter an amended order
2 today saying that, which, by the way, I think is more
3 appropriate than the relief that they are requesting.
4 THE COURT: Oh, absolutely. I am not going
to strike this divorce. I am not going to put this unhappy
6 couple back together again, I can tell you that. The point
1 is it just seems that it perpetrates an injustice by an
teG,P0 KID record 6 my -kesii mon Li
8 error in the court -- okay, admittedly, she may or may not
9 have gotten vindictive and sent a lot of nasty emails and
10 blah, blah, blah. If she wants to be nasty about the
. 11 question of alimony or not, that's another matter.
Pte Ak-I \nCt, isAerik .1.'cl‘k\Ne `noiNesk one
12 M . CARACIOLO: I understand that, Your
13 Honor.
14
THE COURT: The point is the question of
15 alimony is there, and that's what the Master said. Co
16 ahead, I didn't mean to cut you off. I really would like
17 some reference though to some clear case authority that this
18 is -- I am assuming you haven't found a case that is like
19 this one? .
20 MR. CARACIOLO: No. IL have not, Your Honor.
21 THE COURT; The story of my lifelmalic
22 MR. CARACIOLO: And I believe that there was
23 one case presented to me which is neither on point or
24 persuasive nor is it really case law that would affect this
25 court.
S
THE COURT: There is case law out there,
2 isn't there, that says the Courts of Common Pleas maintain
3 jurisdiction over an order even beyond the thirty days,
4 where it is clear that there was an error made?
5 MR. CARACIOLO: That's correct. In the
6 interest of justice.
7 THE COURT: In the interest of justice.
8 That's the operative phrase.
9 MR. CARACIOLO: And that's the operative
10 phrase for multiple reasons. First of all, if Your Honor
11 enters an amended order today, I believe this resets the
12 clock on the Superior Court appeal, which I believe that the
13 defendant didn't do for whatever reason, probably the same
14 reason why she didn't file this for sixty-six days. And
15 based on her history in this case, I believe a Superior
16 Court appeal is coming, and that is going to then reopen the
17 entire divorce, whether we like it or riot.
18 She has filed appeals before to the Superior
19 Court and has done nothing with them. I believe Your Honor
20 entered two orders that she appealed to the Superior Court
21 and she neither briefed nor participated in oral argument.
22 And that's exactly what's going to happen here. So in the
23 interest of justice --
24 THE COURT: Well, then somebody has got to be
25 very, very pointed about a request for counsel fees, because
6
1 the Superior Court grants counsel fees in these kinds of
2 cases. If there is a track record, they will give Mr.
3 Bingaman his laugr's fees, which is probably the remedy.
1.‘d kt,kn Cieciii Cards cam his 1ccial fees
4 MR. MONFREDO: I would like to point out that
5 I was not the attorney prior to this. And she claims that
6 she had many problems with her attorney not filing briefs,
7 not getting in touch with her, missing deadlines. And he is 433,5 •014 mtj ittwitei uzets 6%5\-rtt f ext
8 claiming that that will happen again. And it will not
9 happen again because she has hired me, and I won't miss the
10 deadlines for those. And I will file briefs for her.
11 THE COURT: I guess we can't eIyact from you Cale Vr citzokvArki tithWrq Act a. z5 gear onfriocie
a blood oath that you will not file an appeal . and ickvti isc6Ika :E
14 MR. CARACIOLO: And he brings up a good
15 point, because if it truly was an issue where her last
16 attorney either didn't listen to her or missed deadlines,
17 the problem is against her last attorney not against Mr.
18 Bingaman. Arid if this things ends up in front of the
19 Superior Court and this divorce is reopened, and he has been
20 trying to get a divorce for years and years and years and it
21 drags out for another two or three years, where is the
22 injustice there. tifticicOnul to %r us1icQ
23 Apparently she now has another remedy, which
24 would be against her last counsel. Presumably he has
25 malpractice insurance, and that would be a civil action.
12
tit14 Vact 15 r 13 MR. MONFREDO: I can't say that.
7
1 But, instead, she is filing all of these cases against Mr.
2 Bingaman, a civil rights federal case. Her mother is now
3 suing him for a credit card issue that occurred four years
4 ago. She was found guilty of harassment tar attacking him.
5 She filed the appeals on the custody case when the child was
6 eighteen years old. I mean, all of these things are
7 frivolous. And although we have asked over and over and
8 over for attorney's fees, only the Master granted us
9 $750.00.
10
THE COURT: But if I enter an order in this
11 case, is that also not appealable?Clear ht warts ruje arnsi
12 MR. CARACIOLO: If you enter an order in this
13 case, it is appealable.
14 THE COURT: But if I deny the relief
15 requested:1601111034 kOW,Ne,04)6fdr()C.
16 MR. CARACIOLO: That's right. And then the
17 Superior Court will have to decide this issue, which I
18 believe we have a better chance at winning then if the
19 Superior Court is deciding the divorce issue, which, again
20 will leave the marriage open that entire time. In order
21 words, if I am wrong and the Superior Court rules against
22 me, at least they have been divorced, and then we are just
23 dealing with the issue of alimony. But if I am right and
24 Your Honor reopens this case and it is appealed, that means
25 that we are dealing with the issue of alimony plus we have
8
1 to go through the divorce again, all over again. And I
2 imagine that she will drag it out as long as possible, as
3 has been her history in this case.
4 MR. MONFREDO: She is not trying to drag
anything out. She just feels like she didn't get a fair
6 deal.
THE COURT: But this sets the stage for a
8 perfect resolution of this matter that could save people a
9 lot of time and a lot of money. And that is that she would
10 agree to open up the alimony issue on condition that she not
11 pursue the divorce.
12 MR. CARACIOLO: I would have no objection to
13 that.
14 THE COURT: That the two of you could agree
15 on that. Have you talked with her about that?
16 MR. MONFREDO: Yeah, I have.
X2.
17 THE COURT: And she won't.. tA0- a lair divorce Nth t00% nq
18 MR. MONFREDO: I don't think so, Your Hono -. j
19 THE COURT: She wants to stayed married to
20 this guy.
21 MR. CARACIOLO: That's clear from all of the
22 things that have happened. If Your Honor recalls, we
23 actually had to have a hearing to determine whether being
24 separated for two or more years, it was actually three years
25 by the time we got here, the marriage was irretrievably
9
1 broken, because she was still saying that it was still
2 salvageable. And this is just her conduct. And she is
3 using all of these judicial systems, the Federal Court, the
4 criminal court, the civil court, all these things against
5 him. And, unfortunately, he just doesn't have the money
6 like she does. She says in her email that she is being
7
bank-rolled. Clearly that's coming from her father. Her
8
father is giving her all the money she could possibly need
9 to file all of these issues, which are either malicious or
10
dilatory
11 MR. MONFREDO: First of all, this is all
12
hearsay, this email. I don't know what that's about.
13 Second of all, she is riot doing this maliciously.
14 THE COURT: Well, it is not part of the
15 record I will say. But the past history of the case is not
16 hearsay, that speaks for itself. Did you file a memo or
17 does your response contain any reference to the law?
18 MR. CARACIOLO: The only response was to the
19 record in the case. There is no case law response, but I
20 will be happy to file a brief if Your Honor would like to
21 see that.
22 THE COURT: I. think that would be helpful.
23 .Co ahead, Mr. Monfredo, I interrupted you. T apologize.
24 MR. MONFREDO: Quickly, Your Honor, if I
25 could approach. I do have case law that's persuasive. It
1 0