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