2013
11.22

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[ The Millers raised a defective and void divorce decree/court order as their evidence of ownership. NOW, they act like I brought it up. AND they ignore EVERYTHING I did bring up.

The court lacked jurisdiction to issue the divorce order. The court cannot obtain jurisdiction retroactively. Their order is void and a nullity. It will always be void and a nullity.

The deliberate malice of Carolyn Tornetta Carluccio will continue to destroy lives, and fill the pockets of the lawyers whom she served as President of the Montgomery County Bar Association. ]

ZARWIN BAUM DEVIT0 KAPLAN SCHAER TODDY P.C.
GARY A. DEVITO
PHILIP A. MAGEN
ATTORNEY ID Nos. 36421/202181
1818 Market Street
13th Floor
Philadelphia, PA 19103
Telephone: 215-569-2800
FAX: 215-569-1606

Attorneys for David R. Miller & Jennifer K. Miller

MONTGOMERY COUNTY COURT OF COMMON PLEAS CIVIL ACTION

  NO. 2013-29976
TERANCE HEALY  
   
v.  
DAVID R. MILLER AND JENNIFER K. MILLER  

DEFENDANTS DAVID R. MILLER & JENNIFER K. MILLER’S
REPLY BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS TO PLAINTIFF’S
COMPLAINT

Defendants David R. Miller and Jennifer K. Miller (“Defendants”), by and through their attorneys, file the following Reply Brief in Support of Defendants’Preliminary Objections to the Complaint of Plaintiff Terance Healy (“Plaintiff’):

In response to Defendants’ preliminary objections, Plaintiff primarily argues two points. First, that the Honorable Carolyn Tornetta Carluccio lacked the authority to grant Plaintiff’s ex-wife, Sonya Healy (“Sonya”), a power of attorney to dispose of the residence located at 110 Banbury Avenue, North Wales, Pennsylvania, 19454, Montgomery County Parcel No. 46-0000467-11-7 (the “Property’t). Second, that Plaintiff’s appeal of the May 9,2011 divorce decree (the “Decree”) should have acted as a stay. For the reasons set forth below, neither of Plaintiffs arguments has merit and his Complaint should be dismissed with prejudice.

[ Plaintiff presented over a dozen points. 1. No Power of Attorney 2. Invalid Power of Attorney 3. Defective Divorce Decree 4. Void Divorce Decree 5. Pending Appeal 6. Efforts to Avoid Fraudulent Conveyance 7. Obstruction 8. Denial of Rights 9. Failure to Demonstrate Ownership 10. Fraud 11. Forgery 12. Bad Power of Attorney 13. Misrepresentation of Marital Status Oddly, they address NONE of those issues. ]

The May 9th Divorce Decree is Valid and Binding

[ Definitely selected the wrong argument for this one. They should ask and not assume… or read this web site.]

Though Plaintiff attempts to ground his argument regarding the power of attorney in the statutory requirements set forth in 20 Pa.C.S. § § 5601-5611, Plaintiff falls to address that these statutes only govern statutory powers of attorney concerning the appointment of a fiduciary. The court has both’inherent and statutory to grant a power of attorney to a spouse in the context of a divorce. The Divorce Code specifically provides:

A decree granting a divorce or an annulment shall include, after a full hearing, where these matters are raised in any pleadings, an order determining and disposing of existing property rights and interests between the parties, custody, partial custody and visitation rights, child support, alimony, reasonable attorney fees, costs and expenses and any other related matters, including the enforcement of agreements voluntarily entered into between the parties. In the enforcement of the rights of any party to any of these matters, the court shall have all necessary powers, including, but not limited to, the power of contempt and the power to attach wages. 23 Pa. C.S.§ 3323(b) (emphasis added).

Under § 3323(b), Judge Carluccio had the power to take all necessary actions and order all necessary remedies to ensure the swift disposition of the Property, including granting Sonya a power of attorney to transfer the Plaintiffs interest in the Property.

[ ONLY WHEN THE JUDGE HAS JURISDICTION. The Divorce Decree is a nullity. It cannot be presented in any court as valid. It doesn’t exist. ]

Moreover, Plaintiff is barred from attacking the validity of the Decree in this action. The Divorce Code further provides:
The validity of a divorce or annulment decree granted by a court having jurisdiction over the subject matter may not be questioned by a party who was subject to the personal jurisdiction of the court except by direct appeal provided or prescribed by law. A party who sought and obtained a decree, financed er agreed to its procurement, er accepted a. property settlement alimony pendente lite or alimony pursuant to the terms of the decree, or who remarries after the decree, or is guilty of laches, is barred from making a collateral
attack upon the validity of the decree unless, by clear and convincing evidence, it is established that fraud by the other party prevented the making of a timely appeal from the divorce er annulment decree. 23 Pa. C.S. § 3333.

[ They present void orders as evidence and suggest I cannot attack. Well, the order is void, there is nothing to attack. It is a nullity. ]

Now, more than two years after the date of the Decree, Plaintiff attempts to collaterally attack the validity of the Decree in this action. Pursuant to 23 Pa.C.S. § 3333, Plaintiff is clearly prohibited from questioning the validity in this forum. Plaintiffs efforts to declare the Decree invalid fail and the Complaint should be dismissed with prejudice.

Plaintiff’s Attempted Appeal Did Not Stay the Effect of the Decree

[ What about those Petitions to Stay the Order while under Appeal? ]

Plaintiff implies that his appeal should function as a stay of the Decree. Plaintiff is mistaken. Regardless of the current status of the appeal, an appeal is not an automatic stay. See Pennsylvania Pub. Util. Comm’n v. Process Gas Consumers Grp., 502 Pa. 545, 553, 467 A.2d 805, 809 (1983) (noting that an application for stay pending an appeal should only be granted when the applicant makes a strong showing in support of the stay). An application for a stay pending appeal always involves a situation in which the merits of the dispute have been fully considered in an adversary setting and a final decree rendered.

In cases involving more than a judgment for a payment of money, an appeal will “operate as a supersedeas only upon the filing with the clerk of the court below of appropriate security as prescribed in this ru1e.’ Pa.R,A,P. 1733(a). In such cases, an application for stay pending appeal must first be filed, See Pa.R.A.P. 1732. Since Plaintiff did not follow the procedures for obtaining a stay, the Decree remained in effect throughout the course of the sale of the Property.

[ A void nullity cannot be in effect. It was never effective. It never could be effective. It never can be effective. ]

For the foregoing reasons, together with the reasons Set forth in Defendants’ Preliminary Objections, Defendants respectfully request that this Honorable Court sustain Defendants’ Preliminary Objections and issue an order dismissing Plaintiffs Complaint with prejudice.

By Philip A. Magen

[ The issues here aren’t in the usual scripts offered by the ABA. It’s important to read the law. To understand the law. To follow the law. It is important for lawyers to be concerned with their clients liability and the effect these actions and statements may have when they go to prosecute the crime committed against them. ]

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