*** Official Court Ruling: The Transcript Frank Andrews Shimkus Does Not Want You To Read ***
Lehigh County Courthouse/Gallagher Reporting and Video, LLCFeb 2 2008
Question: "Do you know when the Right to Know Law Bill was considered by the House for final passage?"
Frank Shimkus: "...if the House voted on the senate version of the Right to Know Law on February 11th, that is one session day I missed because I was being treated for this sinus condition."
Question: "...any affidavit or statements from the doctor, medical report or something, you can offer to the Court about your memory problems, right?"
Frank Shimkus: "No."
1
1 In Re: : IN THE COMMONWEALTH COURT
: OF PENNSYLVANIA
NOMINATION PETITION OF :
FRANK ANDREWS SHIMKUS, :
CANDIDATE FOR THE :
DEMOCRATIC NOMINATION :
IN THE GENERAL ASSEMBLY :
FROM THE 113th DISTRICT :
:
Objector: KEVIN MURPHY : DOCKET NO. 142 M.D. 2008
_____________________________________________________
In Re: : IN THE COMMONWEALTH COURT
: OF PENNSYLVANIA
NOMINATION PETITION OF :
FRANK ANDREWS SHIMKUS, :
CANDIDATE FOR THE :
DEMOCRATIC NOMINATION :
IN THE GENERAL ASSEMBLY :
FROM THE 113th DISTRICT :
:
JOSEPH PILCHESKY and :
JOANNE PILCHESKY, :
Petitioners : DOCKET NO. 112 M.D. 2008
_____________________________________________________
NOMINATION PETITION HEARING
Held in Courtroom 8 of the Lehig
County Courthouse, 455 Hamilton Street, Allentown
Pennsylvania, on Thursday, February 28, 2008
commencing at 10:10 a.m., before Dianne L. Knowles
Registered Merit Reporter, Notary Public of th
Commonwealth of Pennsylvania
HELD BEFORE: THE HON. RENEE COHN JUBELIRE
* * *
GALLAGHER REPORTING & VIDEO, LLC
33 South Seventh Street, Suite 105
Allentown, Pennsylvania 18101
(610) 439-0504 1 (800) 366-2980
APPEARANCES:
CHRISTOPHER P. CULLEN, ESQ.
2 West Olive Street
Scranton, Pennsylvania 18508-2532
-- For Kevin Murphy
JOSEPH PILCHESKY
JOANNE PILCHESKY
819 Sunset Street
Scranton, Pennsylvania 18509
-- Appearing Pro Se
CIPRIANI & WERNER, P.C.
BY: JAMES F. TIERNEY, IV, ESQ.
Oppenheim Building - Suite 210
409 Lackawanna Avenue
Scranton, Pennsylvania 18503-2059
-- For Frank Andrews Shimkus
* * *
GALLAGHER REPORTING & VIDEO, LLC
33 South Seventh Street, Suite 105
Allentown, Pennsylvania 18101
(610) 439-0504 1 (800) 366-2980
INDEX TO WITNESSES
WITNESS PAGE
Jennifer Coar
Direct by Mr. Cullen 10
By Mr. Pilchesky 43
Cross by Mr. Tierney 46
Redirect by Mr. Cullen 54
By Mr. Pilchesky 56
Anthony F. Grande
Direct by Mr. Cullen 50
Cross by Mr. Tierney 68
Redirect by Mr. Cullen 72
Recross by Mr. Tierney 76
Redirect by Mr. Cullen 152
Edward Decker
Direct by Mr. Cullen 78
By Mr. Pilchesky 91
Frank Shimkus
Cross by Mr. Cullen 94
Cross by Mr. Pilchesky 133
Direct by Mr. Tierney 155
Recross by Mr. Cullen 182
Recross by Mr. Pilchesky 203
Redirect by Mr. Tierney 214
Kevin Murphy
Direct by Mr. Cullen 215
INDEX TO EXHIBITS
EXHIBIT DESCRIPTION MARKED/ADMITTED
P-Murphy 1 Residential Lease/Rental 12 231
Agreement, 3/1/08
P-Murphy 2 Xerox of check 974, 1/22/08 14 231
P-Murphy 3 Xerox of check 984, 2/5/08 18 231
P-Murphy 4 Seller's Property Disclosure 60 231
Statement, 5/2/07
P-Murphy 5 Listing Contract Exclusive 66 231
Right to Sell Real Estate,
5/2/07
P-Murphy 6 Candidate's Affidavit, with 94 231
attachments
P-Murphy 7 Documents in re: purchase of 106 231
310 Varsity Drive, Throop, PA
P-Murphy 8 News Release, March 29, with 114 231
attachments
P-Murphy 9 Change to Listing Contract, 153 231
2/26/08
Shimkus 1 2007 1099, Trinity 164 231
Congregational Church
Shimkus 2 2007 W-2, House of 165 231
Representatives
Shimkus 3 Change of address for voter 166 231
registration, 2/27/08
Shimkus 4 Change of address for voter 167 231
registration, 10/25/07
Shimkus 5 Letter to F. Shimkus from 168 231
PNC Ins.
Shimkus 6 Statement, Scranton Times 168 231
Downtown Federal Credit Union
Shimkus 7 Xerox of two envelopes 169 231
addressed to F. Shimkus
Shimkus 8 Contact Information, 10/22/07 171 231
Shimkus 9 Letter to F. Shimkus from 172 231
Capital BlueCross
Shimkus 10 Address labels, United Spinal 173 231
Association
Shimkus 11 Article from Electric City, 174 231
11/15/07
Shimkus 12 Xerox of two envelopes 176 231
* Exhibits not in custody of reporter.
THE COURT: Good morning. Than
you all very much for coming here and finding you
way. I hope no one had any problems
We are here today in Allentown t
hear the objections to the nomination petition o
Frank Andrews Shimkus, candidate for the democrati
nomination in the General Assembly for the 113t
District. We have two sets of objections, one wher
the objector is Kevin Murphy, and the other of Josep
and Joanne Pilchesky
Now, we have a counsel for Mr
Shimkus
MR. TIERNEY: Yes. Jim Tierney
your Honor
THE COURT: So you are counsel fo
the candidate
And then here we have
MR. CULLEN: I'm counsel, I'
Chris Cullen, your Honor, counsel for Mr. Kevi
Murphy
THE COURT: Fine
MR. PILCHESKY: And we are Mr. an
Mrs. Pilchesky, we are pro se
THE COURT: Okay. Wonderful
Thank you very much.
And do we also have the witnesses
in attendance that will be needed for today's
hearing?
MR. CULLEN: I have two of the
three witnesses that were subpoenaed. And I'm
prepared to move forward with our first witness, your
Honor.
THE COURT: Okay. Very well. And
why don't we proceed.
The way I envision this
proceeding, in order to allow it to proceed smoothly,
would be for Mr. Cullen to call the witnesses that he
has listed, and if they are on, if those witnesses
are on the witness list that the Pilcheskys have
produced, after Mr. Cullen is finished with his
questions, if there are any additional questions that
you have that have not already been asked, you may
ask them. And then --
MR. TIERNEY: A procedural matter,
we haven't been, Mr. Pilchesky did not provide us a
witness list. So we ask him to be excluded from
questioning the witnesses at this time.
THE COURT: There was a witness
list provided I guess yesterday.
MR. TIERNEY: We have Mr.
Cullen's, but we don't have Mr. Pilchesky's.
THE COURT: Then the court did
receive it, it was filed with the court in a timely
fashion. Because of the expedited nature of the --
MR. TIERNEY: I understand, your
Honor.
THE COURT: -- of these
hearings --
MR. PILCHESKY: Your Honor, we did
mail it certified and by ordinary mail to Mr.
Shimkus' address. We were never notified of Mr.
Tierney's appearance.
THE COURT: Right. And today I --
MR. TIERNEY: I was retained
yesterday, your Honor.
THE COURT: I know that it's a
close time line. Do you have an extra copy that you
can provide counsel?
MR. TIERNEY: For housekeeping,
your Honor, counsel and I, Chris Cullen and I went
through all of our exhibits, there is no objections
to entering those exhibits.
MR. CULLEN: I have no objections
in the course of presentation, your Honor, of
entering them in, once they are authenticated and
identified.
THE COURT: Thank you very much.
MR. CULLEN: On the matter of
housekeeping, also, your Honor, for the Court's
benefit, I do have exhibits to put forward. Most of
the exhibits are attached to the petition I already
have filed on behalf of Mr. Murphy, and to that
extent, I've shared them with Mr. Tierney.
MR. TIERNEY: Yes, your Honor.
MR. CULLEN: I have three other
exhibits that were, I apologize to the Court, in the
hurriedness of getting organized, I forgot about
these, they are just minor things, and if you would
give us a few seconds, I'd share them with Mr.
Tierney now. I apologize to the Court. It's been a
hectic morning.
THE COURT: Yes, I'm sure.
(Discussion was held off the
record.)
MR. CULLEN: Your Honor, we have
been able to review the exhibits that I would hope to
be putting forward to the Court with Mr. Tierney.
And I believe there is no
objections, Mr. Tierney?
MR. TIERNEY: No. None
whatsoever
MR. CULLEN: So..
MR. TIERNEY: The only othe
housekeeping issue is on the argument and Paulmier
We were notified to be ready, prepared to argue tha
matter specifically on oral argument
THE COURT: To the extent that i
is relevant to the issue involving the statement o
financial interests. And we will entertain the lega
arguments after the presentation of the witnesses an
the testimony and evidence
MR. TIERNEY: Thank you, you
Honor
THE COURT: Thank you
MR. CULLEN: Thank you. May I ge
my first witness
THE COURT: Yes
Mr. and Mrs. Pilchesky, excuse me
I believe only one of you really should as
questions, if that's okay. Are you, Mr. Pilchesky
will you be the designated -
MR. PILCHESKY: Yes, ma'am
THE COURT: -- questioner
Thank you very much
Will you be able to give a copy of
1
your witnesses -- I actually have a second copy, if
you --
MR. PILCHESKY: We have a copy
back.
MR. TIERNEY: I have it right
here, your Honor.
THE COURT: Okay. Good.
MR. CULLEN: I'd like to call my
first witness, your Honor.
THE COURT: Yes, please.
MR. CULLEN: Mrs. Jennifer Coar.
THE COURT: Thank you.
THE COURT TIPSTAFF: Go over there
where the microphone is. But before you sit...
* * *
JENNIFER COAR, having been duly
sworn, was examined and testified as follows:
DIRECT EXAMINATION
BY MR. CULLEN:
Q. Good morning.
A. Good morning.
Q. For the purpose of the record, can you
identify yourself for the Court?
A. Jennifer Coar.
Q. And where do you live, Jennifer?
A. I currently live at 2218 Boulevard
Avenue.
Q. And what municipality, what city?
A. Scranton.
Q. Okay. And do you live there alone?
A. No. I live there with my three children.
Q. Okay. And just for the purpose of your
background, how are you employed?
A. I'm a registered nurse.
Q. And your educational background?
A. Diploma in nursing school.
Q. How long have you been working as a
nurse?
A. Fifteen years.
Q. And where do you work?
A. Moses Taylor Hospital.
Q. How long have you been living at 2218
Boulevard Avenue?
A. It would be three years April 1st.
Q. Okay. You are here as a result of the
subpoena being issued?
A. Correct.
Q. And the subpoena asked you to bring
certain documents, did it not?
A. Yes, it did.
1
Q. Did it ask you to bring a copy of the
lease?
A. Yes.
Q. Did it ask you to bring a copy of certain
checks?
A. Yes.
Q. And did you bring those?
A. Yes.
Q. All right.
MR. CULLEN: May I approach, your
Honor?
THE COURT: Yes.
MR. CULLEN: There would be marked
as Petitioner's Murphy Exhibit Number 1.
(Petitioner Murphy Exhibit Number
1 was marked for identification.)
MR. CULLEN: Your Honor, would the
Court want a working copy?
THE COURT: If you have an extra.
MR. CULLEN: I have an extra copy.
THE COURT: If there is no
objection?
MR. TIERNEY: No, your Honor.
BY MR. CULLEN:
Q. I'm going to hand you what has been
marked Petitioner's Murphy Exhibit Number 1, and as
you if you recognize that document
A. I do
Q. And what is that document
A. It's a copy of my lease
Q. A lease for what
A. A lease for residency at 2409 Boulevar
Avenue
Q. And who is that lease with
A. Edward Decker
Q. And who is Edward Decker
A. Edward Decker is the owner of the house
Q. All right. How is it that you entere
into that lease for that property
A. I had seen a FOR RENT sign out front an
called the number and met with Edward
Q. When did you see a FOR RENT sign ou
front of 2409 Boulevard Avenue
A. I would say approximately mid January
Q. Mid January. And did you, you said yo
met with Mr. Decker and this is the result, thi
lease
A. Yes
Q. And the lease is for how long
A. One year.
1
Q. And when is it to start?
A. March 1st.
Q. And in mid January --
MR. CULLEN: Excuse me.
(Petitioner Murphy Exhibit Number
2 was marked for identification.)
BY MR. CULLEN:
Q. And in mid January did you have an
occasion to make any kind of security payment on this
lease?
A. I believe my first check was written on
January 22nd.
Q. And is that about the time when you say,
mid January, that you spoke to Mr. Decker and this
lease came forward?
A. I had met with him several days before
that, I believe.
Q. Okay. How many days, a week, three,
four, five, to the best of your recollection?
A. It was within a week, I would say.
Q. So sometime around January 15th you may
have met with Mr. Decker, to the best of your
recollection?
A. Correct.
Q. Okay. I'm going to show you what's been
marked as Petitioner Murphy's Exhibit Number 2 and
ask you to take a look at that. Are you familiar
with that document?
A. Yes.
Q. What is that document?
A. This is a partial payment for security.
Q. And if you look at the second page of
that document, does that indicate that the check has
been cashed?
A. Yes, it does.
Q. And do you recognize the signature on the
far right-hand side of the second page?
A. Edward Decker.
Q. Okay. And that's the man you gave this
check to?
A. Uh-huh.
Q. And what was this payment for?
A. Partial security.
Q. And when you made that payment of partial
security for 2409 Boulevard Avenue, were you given
access to that apartment, that residence?
A. Yes.
Q. And were you given a key?
A. I, I did not have the key in my
possession. There was a lock box on the back door,
1
because the house was still for sale at that time.
Q. Okay.
A. So I was given a code to be able to get
the key out when I was there, and I returned the keys
when I left.
Q. Who gave you the code?
A. Edward Decker.
Q. Now, when Mr. Ed, Mr. Decker accepted
this check from you and gave you the codes for the
house, what was the purpose of allowing you access to
that residence?
A. Because I had asked if I could come in
and do some painting.
Q. And painting and what else, anything
else?
A. Nothing other than painting. I mean, I
took it upon myself to move certain things that I
would not be needing for the month and putting them
in a side room out of the way.
Q. What kind of things?
A. Things from the home that I was living
in, some boxes, a box of some items that I may not
need to use in the next month.
Q. Clothes?
A. There were clothes there.
Q. Toys
A. Toys
Q. Appliances or anything like that
A. I wouldn't say that there is appliances
There are now, but at that time, no
Q. Okay. And you, did you begin to pain
this residence
A. Yes
Q. And did you go and acquire paint
A. Yes
Q. What did you, how much, what type o
expenditures did you make in acquiring paint
A. I spent close to $600 on paint
Q. And how often would you go to thi
residence to paint
A. I would say at least two times a week
possibly three
Q. And -
A. It wasn't a set, you know, thing ever
week. When I was able to, when I had the time to d
it, I would do it
Q. How long would you be there in a sessio
painting
A. Several hours
Q. And just for the Court's benefit, how far
1
is 2409 Boulevard Avenue from your residence at 2218
Boulevard Avenue?
A. Not quite two blocks.
Q. Not quite two blocks. Would it be fair
to say that it's in the neighborhood?
A. I would say so.
Q. Okay. Did you have occasion to drive
past 2409 on a regular basis when you were driving to
2218? Is that a normal course of traffic?
A. No. I normally go the other way. Only
if I had been to the mall would I go that way.
Q. But you would have occasion to drive past
2409?
A. A rare occasion.
Q. Okay. So you had given this check, and
I'm going to show you another document, please.
(Petitioner Murphy Exhibit Number
3 was marked for identification.)
BY MR. CULLEN:
Q. Ms. Coar, I'm going to hand you a
document that has been marked Petitioner Murphy
Exhibit Number 3. Have you had an opportunity to
look at that exhibit?
A. Yes.
Q. Are you familiar with that exhibit?
A. Yes.
Q. What is that exhibit?
A. That is the check, copy of the check for
part of the security.
MR. CULLEN: Your Honor, I beg the
Court's indulgence, I would like the opportunity to
have the courtroom sequestered for only parties and
attorneys during this testimony. I believe I made
the Court aware of it. I do note that there are
other people now who may or may not be witnesses just
came into the courtroom, and I would appreciate the
opportunity to have this courtroom sequestered, just
the parties and attorneys, at the request of the
witness.
THE COURT: Is there --
MR. TIERNEY: No objection.
THE COURT: No objection? Okay.
THE WITNESS: You know what? It's
fine. If this is it, I don't mind.
THE COURT: Are you sure?
THE WITNESS: I'm fine.
THE COURT: Do you want me to --
THE WITNESS: I'm okay.
MR. CULLEN: Are you sure? They
can be sequestered if you're not sure.
2
THE WITNESS: That's fine.
THE COURT: Thank you very much.
If you at any time feel --
THE WITNESS: Thank you. Okay.
THE COURT: You do not need to
leave. Thank you.
MR. CULLEN: And I apologize, your
Honor. I just noticed that and I --
THE COURT: That's...
MR. CULLEN: -- I thank the Court
for its consideration.
BY MR. CULLEN:
Q. If I may continue, Mrs. Coar. The
Petitioner Murphy Exhibit Number 3 before you, I'm
sorry, I distracted your testimony, are you familiar
with that document?
A. Yes, I am.
Q. And what is that document?
A. This is a second check that I wrote as
security to Edward Decker.
Q. So that would fulfill the requirement of
paying I believe the total amount of $825 in security
deposit for the residence, for --
A. Correct.
Q. -- for 2409 Boulevard Avenue?
A. Correct
Q. And if you look at the second page o
this document, does it indicate that the check ha
been cashed, to the best of your knowledge
A. Yes
Q. Okay. Now, at any time when after Mr
Decker gave you a copy of the lease, accepted th
first check, accepted the second check and gave yo
the codes for the lock box for you to have access t
come in and paint and move possessions in beginnin
somewhere around January 22nd or so, were you eve
informed by Mr. Decker that someone else was residin
at that address
MR. TIERNEY: Objection, you
Honor. Hearsay, if she's going to testify to wha
Mr. Decker said
MR. CULLEN: She can testify as t
what Mr. Decker, the landlord, told her about th
residence. Mr. Decker is here, he's been called as
witness. I believe she can testify to that
THE COURT: But is she testifyin
to it for the truth -
MR. CULLEN: She's -
THE COURT: -- of what he said
THE WITNESS: I will testify to
2
the truth what I was told at the time.
THE COURT: Well, but why isn't
that hearsay?
MR. CULLEN: It's not hearsay
because she had the direct conversation with her
landlord and the landlord has given her access to it,
the landlord has taken her money, she has an
expectation of use of the property, and I'm trying to
get to whether or not that expectation was tainted in
any way by Mr. Decker in informing her that someone
else may be residing at the property.
Remember, she's already testified,
you know, that there was a FOR RENT sign in front of
the building and that as far as she knows, the
building had been, the residence had been up for sale
for some time. So I'm just trying to probe the idea
of whether or not the landlord had told her anything
about any other, anyone else who may be residing
that. The landlord, she's already testified that the
landlord has granted her access and use of the
property for painting and for moving her own
possessions in there.
MR. TIERNEY: Speculation, your
Honor. She testified that she was only there for a
few days a week, two days out of seven days. She
rarely drove by the residence. Her firsthand
knowledge, she wouldn't have. Mr. Decker is here.
If Chris wants to ask Mr. Decker under direct what he
told her, that's fine.
THE COURT: I'm going to sustain
the objection. I believe that there may be other
ways that you could the next information without
hearsay.
MR. TIERNEY: Thank you, your
Honor.
MR. CULLEN: Thank you, your
Honor.
BY MR. CULLEN:
Q. Let me rephrase the question. In all the
time that you were there painting, did you ever see
anyone else there?
A. Yeah.
Q. When?
A. Could you ask specifically who I saw?
I've seen Mr. Decker there, I've met his wife there.
Q. All right. Well, all right. I will do
it that way. When you were painting, when you were
at 2409, did you ever, were you ever visited or ever
saw Mr. Decker on the premises?
A. Yes.
2
Q. When you were there at 2409 when you were
painting or moving possessions in, did you ever see
Mrs. Decker on the premises?
A. Yes.
Q. Did you ever see Mr. Frank Shimkus --
you're familiar with him?
A. Yes.
Q. Did you ever see Mr. Frank Shimkus on the
premises?
A. Yes.
Q. And when did you see Mr. Frank Shimkus on
the premises?
A. I saw Mr. Frank Shimkus last Friday on
the premises.
Q. Would that be February 22nd?
A. If that was last Friday, yes.
Q. Yes. Did you ever see Mr. Shimkus, Frank
Shimkus, on the premises at 2409 at any time between
the middle of January and February 22nd?
A. No.
Q. What was the condition of the residence
at 2409 when you first entered it in sometime in
January to paint? What was the condition of the
residence?
A. It -- was furniture there?
Q. Well -
A. Could you be more specific what you wan
to ask me
Q. All right. Was, did it look lived in t
you
MR. TIERNEY: Objection to th
form, your Honor. "Lived in" calls for speculation
You want to ask her specific questions with respec
to what was there and what she saw
THE COURT: I mean, the questio
is okay. I'm going to allow the question. And i
you have any further questions, you can -
MR. TIERNEY: Sure. Thank you
your Honor
THE COURT: Thank you
A. There was furniture in the house
BY MR. CULLEN
Q. What type of furniture
A. There was a love seat, a couch, a
entertainment center, a television set, a futon bed
and then some things that the Deckers had lef
behind
Q. Well, do you know if the furniture, th
futon bed, the entertainment center, the table
chair, the love seat, were left by the Deckers?
2
A. I don't know who they were left by.
Q. All right. Was there food in the
refrigerator?
A. As of when?
Q. Well, from the time you went in in
January, when you first went, was there food in the
refrigerator?
A. Not at that time.
Q. Was there dishes in the cupboards?
A. No.
Q. Okay. Were there towels in the
bathrooms?
A. There was a towel in the bathroom.
Q. Were there paper products in the house?
A. Some, yeah.
Q. Were there lamps?
A. There was ceiling lights that worked.
Q. All right.
A. I didn't see lamps.
Q. Was there any other, any personal, any
clothes not belonging to you there?
A. Not end of January when I was there.
Q. Okay. And when you painted, you were
painting what, walls, doors, windows, what were you
painting?
A. Walls.
Q. Okay. And where were you painting first?
A. The bathroom.
Q. And what floor?
A. First floor.
Q. Uh-huh. And did you notice that the
bathroom was used after you painted and came back or
anything like that?
A. When I first started painting, no, there
was, there were no personal items. But throughout
the course, you know, the last month and a half there
was personal items there.
Q. Did you ever ask about those personal
items, ask Mr. Decker or Mrs. Decker whose personal
items they might be?
A. I had said to Mr. Decker, are you aware
that somebody is staying there.
And he said, yes, my father-in-law.
Q. Oh, he told you his father-in-law was
staying that. Did he ever mention that to you when
you were given the key, I mean the codes for the lock
box or after he accepted your deposit, did he ever
tell that you his father-in-law was living there?
MR. TIERNEY: Objection. Hearsay,
your Honor.
2
MR. CULLEN: She just testified
that Mr. Decker eventually told her that his father
was living there.
MR. TIERNEY: I choose when to
object. Again, hearsay. Mr. Decker is here. It
just goes back to the same --
MR. CULLEN: He didn't challenge
it. She should answer the question, your Honor.
MR. TIERNEY: I can choose to,
when to object.
THE COURT: You can certainly do
that.
I'm going to allow this particular
answer, and just for, and you can cross-examine.
MR. TIERNEY: Sure.
MR. CULLEN: I'll rephrase the
question, restate it.
BY MR. CULLEN:
Q. Did Mr. Decker tell you at the time he
accepted your payments for security deposit, at the
time he gave you a copy of the lease, and at the time
he gave you the codes for the lock box, that his
father-in-law, Mr. Frank Shimkus, was residing in the
property?
A. He said he sometimes stayed there.
Q. All right. At that time
A. Yes
Q. Okay. Did you, you never saw him ther
until February 22nd, though, right
A. No
Q. Okay. You painted the bathroom. Wher
else did you paint
A. My daughters' bedrooms
Q. Upstairs bedrooms
A. Bedrooms
Q. When you would paint, would you leav
your materials there
A. I would, I would clean up each time tha
I left
Q. Uh-huh
A. Anything that was mine and that, yo
know, already in the home, I would keep all of m
stuff separate
Q. All right. Let's move up very quickly
if it's all right, to February 22nd -- okay? -- tha
Friday
A. Okay
Q. Now, were you at the residence of 240
Boulevard Avenue on that Friday
A. Yes.
3
Q. Were you painting?
A. On that particular day I was, I was, I
believe I was removing wallpaper. I don't think I
was painting that day.
Q. Okay. Were you alone?
A. No.
Q. Who was with you?
A. My children.
Q. All, how many children?
A. Three.
Q. Three daughters?
A. Uh-huh.
Q. Okay. And was anyone else with you?
A. That was last Friday?
Q. Yes.
A. No. Just my three children.
Q. Okay. Now, how long were you there that
day?
A. I don't know how long I had been there
before Mr. Shimkus and Mr. Murphy showed up.
Q. Well, let's talk about that for a minute.
A. If he knows what time he was there, then
I'll know about how long I was there.
Q. All right. We'll get to that in a little
while. But let's stay on February 22nd for a moment.
During the time you were at the residence on February
22nd, did there come a time that a knock came on the
door?
A. Yes.
Q. And did you respond to that knock on the
door?
A. I did.
Q. And you went, who was at the door?
A. Mr. Murphy.
Q. Did Mr. Murphy identify himself to you?
A. Yes.
Q. And what was Mr. Murphy looking for?
A. Mr. Shimkus.
Q. And what did you tell -- did you have a
conversation with Mr. Murphy?
A. I did.
Q. And did you, do you remember what you may
have told Mr. Murphy when he asked for Mr. Shimkus?
A. I told him that he wasn't here.
Q. And did the conversation progress, did
you have additional conversation other than that?
A. I know I told him I really didn't want to
get involved in any of this because I haven't, had no
idea any of this had been going on. I don't know
what the, you know, I said I'm alone here with my
3
three children, this is very upsetting to me, I
didn't want to be involved.
Q. All right. What happened then, anything
else happen?
MR. TIERNEY: Objection, your
Honor, if she's going to testify to anything that Mr.
Murphy said to her.
MR. CULLEN: I have asked her what
happened then.
MR. TIERNEY: I know. I'm just
saying.
A. I was very upset, so I don't recall the
whole conversation. If you ask me if something is
said... I don't remember the whole conversation.
BY MR. CULLEN:
Q. All right. While you're having a
conversation with Mr. Murphy, did something occur?
While he was at the door, did anything occur?
A. Yes.
Q. Did a -- what happened?
A. Are you talking about the phone call I
received?
Q. Well, if you received -- did you receive
a phone call?
MR. TIERNEY: Objection.
Testimony regarding phone calls, your Honor, sh
received, that's completely hearsay
MR. CULLEN: It's -
THE COURT: Well, the fact of
phone call, she was there for the phone call. I
terms of what was told to her on the phone call, tha
could be hearsay, and if she begins to testify wit
regard to that, we'll -
MR. TIERNEY: I'm just trying t
prevent it, your Honor, because I know he's askin
general questions, but to a lay person, askin
general questions would beg the response of wha
happened, what was discussed during that phon
conversation. Thank you, your Honor
MR. CULLEN: May I
THE COURT: Please proceed
MR. CULLEN: Thank you, you
Honor
BY MR. CULLEN
Q. I believe you just testified you receive
a phone call. Is that correct
A. Yes
Q. This is while Mr. Murphy was at the door
A. Yes
Q. And do you know who the phone call was
3
from?
A. Yes.
Q. And who was it from?
A. Edward Decker.
Q. After that phone call, did anything else
occur?
A. He was also on his telephone, I don't
know who he was speaking to, but I heard him say
she's getting very upset, she's here alone with her
three children.
Q. Okay. Then what happened?
A. Mr. Shimkus came.
Q. And how did that happen?
MR. TIERNEY: Objection, your
Honor. Speculation.
BY MR. CULLEN:
Q. Did he walk up to the front door?
A. No.
Q. Did he drive into the property?
A. Yes.
Q. And where did he drive in to?
A. To the side of the house, came in the
back door.
Q. He came in the back door. Is that the
first time you ever saw Mr. Shimkus there?
A. Yes.
Q. And what was your reaction to seeing Mr.
Shimkus coming in the back door?
A. I was anxious, because he's at the front
door looking for him, and Mr. Shimkus came in the
back door, and I said to Mr. Shimkus, somebody is at
the front door for you.
Q. And then what did you do?
A. I was just standing there, you know. Mr.
Shimkus came in, asked me how long I would be there,
he was going to lie down and take a nap.
And I was upset over being questioned by
Mr. Murphy, and I said we are leaving now, and I told
my kids to get their coats and left.
Q. Have you been back to the 2409 since
February 22nd?
A. Yes.
Q. And what have you done when you've gone
back?
A. I'm, Sunday of this past week I did call
the Deckers and asked them for permission to move
some boxes over.
Q. And did you?
A. Yes.
Q. Okay. Did there come a time before
3
February 22nd that you noticed additional boxes
appearing at the residence that did not belong to
you, additional boxes or possessions that were
showing up at the residence that did not belong to
you or that you did not bring in there?
A. During --
MR. TIERNEY: Objection. Your
Honor, he didn't establish there was boxes there to
begin with or not, so there was no foundation, your
Honor.
MR. CULLEN: She has testified
she's brought boxes in.
MR. TIERNEY: Okay.
MR. CULLEN: All I'm trying to do
is find out if she saw any other boxes that she
didn't bring in or she didn't own.
THE COURT: And hadn't been there
before?
MR. CULLEN: And had not been
there before.
MR. TIERNEY: Okay. Thank you.
A. When I first saw the residence, there
were some boxes there.
BY MR. CULLEN:
Q. Okay.
A. Were there new boxes there
Q. Uh-huh
A. Over a period of time I did notice that
yes
Q. All right. And in the process o
painting -- or let's go back to when you first signe
this lease or got this lease and deposited thes
checks. Had you taken a tour of the residence
A. Yes
Q. Did you look in all the rooms
A. Yes
Q. Okay. Did you look in the closets
A. Yes
Q. All right. Were there clothes in th
closets
A. There was some clothes
Q. And what type of clothes were they
A. Children's clothes
Q. Children's clothes
A. Right
Q. Were there sets of clothes for a man
suits, that type of thing
A. At some point in time, yes
Q. But when you first took a tour of it
A. No.
3
Q. Okay. When did you start noticing that
there were sets of clothes for an adult person, adult
man, like a suit like I'm wearing, ties, that type of
thing?
A. Last Monday.
Q. Last Monday. Now, this lease holds that
you move in on what date?
A. March 1st.
Q. Are you prepared to move in?
A. Not after this week. I asked the Deckers
permission, if I could change my move in date, I work
the weekend, the weekend falls on March 1st, and they
gave me permission. So it will be two weeks tomorrow
that I called all the utilities to have everything
switched into my name as of today.
Q. And when, when you called the utilities
to have them switched into your name, do you know the
name they were switched from?
A. Not every single one, but...
Q. Let's take, is there electric service at
the house?
A. Yes.
Q. Do you know whose names that was in?
A. No. I will tell you that certain ones
told me they were in the name of Edward Decker.
Q. Which ones told you that they were in
that name?
A. I don't remember.
Q. Okay. You have gas in the house?
A. Yes.
Q. Could it have been the gas company?
MR. TIERNEY: Objection. Your
Honor, she already testified she doesn't know.
MR. CULLEN: I'm just trying to
jog her memory, your Honor, with specific questions.
A. Okay. I really am not a hundred percent
sure which ones told me they were in Mr. Decker's
name.
THE COURT: All right.
MR. CULLEN: Thank you, your
Honor.
BY MR. CULLEN:
Q. Do you have cable in that house?
A. I do now.
Q. Okay. Did you have to have it installed?
A. I had Direct TV installed yesterday.
MR. CULLEN: Your Honor, would you
give me one second, beg your forgiveness.
(Discussion was held off the
record.)
4
MR. CULLEN: Your Honor, may I
have, I just have one or two more.
THE COURT: Yes.
BY MR. CULLEN:
Q. You are prepared to move in. You've had
the utilities switched into your name. Are there any
other things that you need to do before you move in?
A. No.
Q. Okay. And there were no restrictions
placed on you during the time period that you made
these deposits for security purposes to now when
you're moving in, no restrictions on your painting or
coming to the house or anything else?
MR. TIERNEY: Objection. Your
Honor, he entered the lease as an exhibit, and the
restriction with respect to taking on the premises is
March 1st. So there is a restriction.
THE COURT: He was asking her for
her understanding of any restrictions that had been
placed on her ability to enter the premises during
the period of time that she says that she's been
painting the premises. I'm going to permit that.
MR. TIERNEY: Okay.
BY MR. CULLEN:
Q. So the only time you took it upon
yourself to call Mr. Decker to ask his permission i
after the February 22nd incident where Mr. Shimku
came in the back door and Mr. Murphy was at the fron
door. Is that correct
A. I believe that I had spoken with Mr
Decker, it was done one other occasion in saying tha
is everything okay, is it still okay for me to com
in, do that. He said yes
Q. You were never refused access, never tol
you couldn't go there
A. I, one occasion I was asked to show u
between, you know, an hour of 2:00 and 3:00 becaus
the house was still for sale and it was being shown
Q. Oh. During this period of time the hous
was still being shown by realtors for sales purposes
A. Well, it was under my, it was m
understanding that there was a contract, I could b
wrong, but you know, with Prudential, that it woul
go through the month of February
Q. Okay
MR. CULLEN: All right. I have n
further questions, your Honor. Thank you
THE COURT: Thank you very much
And now, this witness was on Mr
and Mrs. Pilchesky's witness list. So you have
4
additional questions that have not yet been asked?
MR. PILCHESKY: I have a few, your
Honor.
THE COURT: You may question the
witness.
THE WITNESS: I was told that I
wouldn't be here that long.
THE COURT: Thank you. I
appreciate that. I understand you have some time
frame concerns. And we will try to expedite this for
you. Thank you.
MR. PILCHESKY: May I approach,
your Honor?
THE COURT: Yes. Do you have any
objection?
MR. TIERNEY: No, your Honor. As
long as he lays a proper foundation as to who took
it, when it was took.
THE COURT: Thank you.
MR. PILCHESKY: I took this
photograph myself the day before yesterday.
MR. TIERNEY: He's not testifying.
THE COURT: Right.
MR. TIERNEY: That's not proper.
THE COURT: Why don't we wait. I
believe you will be testifying later to set up the
foundation for this. And --
MR. PILCHESKY: Okay.
THE COURT: -- subject to your
objection later on, we will allow the questioning.
* * *
EXAMINATION
BY MR. PILCHESKY:
Q. Mrs. Coar, just a few very brief
questions. I won't hold you up very long.
You did just testify that you had Direct
TV installed at the property yesterday?
A. Correct.
Q. Prior to that, was there a TV signal at
the home?
A. There was a television set at the home.
Q. Was there, was there a signal to the TV,
do you know?
A. I know that there were multiple VHS
tapes. I didn't examine the television at the time.
I don't know if it was like one of those dual things
that you could watch a video in. But there was video
and there was a television.
Q. So all the time you were there, yourself
or your children didn't put the TV on?
4
A. My children did not watch the TV.
Q. Okay. With regards to your, once you
were on the premises, did you have any expectation of
privacy while you were there with your children, or
were you under an understanding that at some point in
time at any given time someone may enter the
property, or did you believe that you were there
alone and that yourself and your children were safe
and no one could get into that property except the
Dexters?
MR. TIERNEY: That's about three
or four questions, your Honor. Compound question.
And I think he's asking her to speculate.
MR. PILCHESKY: I'll make it
simple.
BY MR. PILCHESKY:
Q. Did you have an expectation of privacy
while you were working on 2409 Boulevard Avenue?
A. It was never discussed.
Q. Okay. Did you have any expectation that
when you went there to do work, that someone may be
in the home, perhaps watching TV or taking a shower,
or when you went to do work there, did you have any
expectation that someone may be there and you might,
you know, want to knock first or introduce yourself?
MR. TIERNEY: Compound again, you
Honor. Also, asked and answered. She alread
testified that she was told prior to February 22n
that Mr. Shimkus would be there. So she alread
testified to that, your Honor, by Mr. Decker
BY MR. PILCHESKY
Q. One last question, Mrs. Coar. At an
time when you went to 2409, was there ever a vehicl
besides your own or someone that was there with yo
in the driveway when you got there
A. Yes
Q. Yes. Was there a white vehicle there
A. This white vehicle in the photograph
yes
Q. Okay. When you were, arrived during whe
the white vehicle was there and you went to th
property, was there any, ever anyone in the propert
when that white vehicle was there
A. It was only on one occasion, which wa
yesterday morning. And no, the vehicle was there
but nobody was there
Q. No one was there. Okay. Thank you ver
much, ma'am
THE COURT: Thank you. If yo
want to cross-examine?
4
* * *
CROSS-EXAMINATION
BY MR. TIERNEY:
Q. Jennifer, I will try to be brief so you
can get out of here.
You currently work as a registered nurse?
A. Yes.
Q. Okay. What hours do you work?
A. I work two days a week, 11:00 A to 11:00
P, and then every other weekend I work 7:00 in the
morning until 11:00 at night. So I work six days out
of 14.
Q. Okay.
A. And I also have a per diem job that I
work during the day, and those hours would be 8:00 to
2:30 while my children are in school.
Q. How many hours per week do you normally
work?
A. In a two pay period at my job at Moses
Taylor I work 80 hours, 80 to 84 hours.
Q. Okay. How about your per diem job?
A. My per diem job now, I'm probably getting
at least, for the next two weeks I'm going to be 18
hours a week.
Q. Okay. So you work about 60 hours a week?
A. Yes.
Q. Okay. And you testified that there were
occasions that you were only at the residence two
days a week?
A. I would say two days a week. If it was a
third day, that was, I don't think that was, it was
probably more rare than that.
Q. Okay. The five days that you weren't
there, do you know who was there --
A. No.
Q. -- or wasn't there?
A. No.
Q. You don't know if Mr. Shimkus was or
wasn't there during those five days?
A. I do not know.
Q. Do you what Mr. Shimkus' schedule --
A. No.
Q. -- was with respect to his
representation --
MR. CULLEN: Objection, your
Honor. There is no foundation as to whether or not
she would know his schedule.
MR. TIERNEY: I'm asking her --
MR. CULLEN: There is no
foundation laid as to the relevance of whether or not
4
she would have any reason to know Mr. Decker, if he
told Mrs. Coar anything. He simply said that,
according to her own testimony, that his
father-in-law may be there at the residence. Didn't
say anything about a schedule. There is no reason to
believe that she would have any knowledge of his
schedule.
THE COURT: Okay.
MR. CULLEN: Or that she would be
charged with knowledge of his schedule.
THE COURT: Okay. Thank you.
MR. TIERNEY: Your Honor, just in
response to, he's trying to establish Mr. Shimkus
being at the residence or not being at the residence.
I'm just exploring the times that she's not there,
which is the majority of the time, and I simply asked
if she knew his schedule as a representative of the
House.
A. And I don't.
BY MR. TIERNEY:
Q. Okay. All right. You don't know when
he's at Harrisburg?
THE COURT: I think she's answered
that.
MR. TIERNEY: Sure.
BY MR. TIERNEY
Q. All right. The March, the lease that yo
entered into with the Deckers -- all right? -- th
lease is to begin March 1st, 2008. Correct
A. Correct
Q. Not in January, not in February, correct
A. Correct
Q. Okay. And you testified earlier that yo
inspected the premises looking in all the rooms an
the closets
A. I wouldn't say I did a full inspection
but yes, I toured the house, yes
Q. Tell me what inspection you did do. It'
important. Did you go into all of the rooms durin
this inspection and go into all the closets in ever
room during the inspection
A. Yes
Q. Okay. All right. And how many times di
you do this
A. I mean, I would probably have done a
initial tour when I was just in the house to get i
and start working
Q. Okay. When you did the initial tour, di
you inspect the closets in all the rooms on separat
occasions?
5
MR. CULLEN: Asked and answered,
your Honor.
THE COURT: I'm not sure that what
you are asking, that's different from what you've
already asked.
MR. TIERNEY: Okay. All right.
My question, after that initial time that she did her
inspection going into the rooms and closets, I'm
asking, did she do such an inspection on a subsequent
occasion. That's all.
A. I wouldn't call it an inspection. I
would just, you know, look and see what room I was
going to start working on next and, you know, what
might be there. There were some children's things
still in the children's rooms that were upstairs.
BY MR. TIERNEY:
Q. Okay. And prior to February 22nd, 2008,
Mr. Decker told you that his father-in-law, Mr.
Shimkus, was residing there?
A. Well, he told me the very first day that
he showed the premises to me he sometimes stays
there.
Q. Okay. That was before you gave your
security, first security rent check?
A. Yes.
Q. Okay. The furniture, the love seat, the
couch and the futon that you testified was located at
the residence -- all right? -- do you know if it's
still located there?
A. No, it's not.
Q. Okay. Do you know when it was moved?
A. Yesterday.
Q. Okay. And do you know who moved it?
A. I did see a van with Cadden's on the
truck.
Q. Okay. And did Cadden move all those
items?
A. Yes.
Q. Okay. Did Cadden move any boxes?
A. I don't know.
Q. Okay. After Cadden moved those items,
did you have an opportunity to go through the house
to do an inspection of the rooms or the closets?
A. I did not inspect.
Q. Okay. Do you know when the first time
that you were at this location to do the inspection?
Because you didn't give us a date. Can you give us
an approximate?
A. The very first date that I met Mr. Decker
there?
5
Q. Uh-huh.
A. I don't know. I'm assuming it was
sometime before my first check was written, which was
on January 22nd. So it had been before that.
Q. Okay. You weren't there in December?
A. No.
Q. Okay.
A. It was definitely shortly after mid
January, I would say, that I met with him.
Q. Okay. And you hadn't been in that
residence prior to that time?
A. Never.
Q. Okay. With respect to last Friday, you
said Mr. Shimkus came to the back door. And he
indicated to you he was going to lay down?
A. Yes.
Q. At the time that you left the residence,
at that point was Mr. Shimkus still there?
A. Yes.
Q. Was Mr. Murphy still in the front porch?
A. Initially he came to the front porch, and
when Mr. Shimkus pulled up, you know, I mentioned to
him that there was somebody at the door looking for
him.
Q. Okay.
A. Mr. Murphy proceeded to go to the bac
door, and all I could hear him calling was Frank
so..
Q. Okay
A. And Mr. Shimkus asked how long I would b
there, and I was a little upset about, you know, al
of it, so I just said to my kids, let's get ou
things, we won't be back today
Q. Did you see Mr. Shimkus and Mr. Murph
present together on that day
A. They were both there at the same time.
did not see them speak, I don't recall seeing the
speak
Q. Okay
A. Because I was closer to the front of th
house, Mr. Murphy had gone to the back of the house
Q. Okay. And you testified that there wer
multiple VHS tapes and videos
A. Yes
Q. Do you know whose videos or VHS tape
they were
A. I don't know who they belonged to.
just saw them in the house
Q. I don't think I asked you earlier, th
television that you testified to being present, was
5
that also moved yesterday by Cadden?
A. Yes.
Q. Do you know where they were moving those
items to?
A. No.
MR. TIERNEY: Okay. I have no
other questions.
THE COURT: Okay.
A. Thank you.
MR. CULLEN: May I have a
follow-up, your Honor? Very quickly.
THE COURT: Yes.
* * *
REDIRECT EXAMINATION
BY MR. CULLEN:
Q. There were some questions asked just now,
and I asked you some questions, and I beg the Court's
indulgence, I hope Mr. Tierney understands that I'm
just a little confused --
MR. TIERNEY: You never are.
MR. CULLEN: I'm more confused
than I appear.
Sorry, your Honor. I didn't mean
to be comical.
BY MR. CULLEN:
Q. I guess what I'm a little confused abou
is, you testified that at the beginning of this tim
period, back in, when you talked to Mr. Decker an
paid him and all that stuff, that he said to you, an
I know there was an objection, but as I understan
your testimony correctly, he said something along th
lines, sometimes my father-in-law stays here. I
that correct
A. That's correct
Q. He never told you, did he, that hi
father-in-law resided there
A. No
MR. TIERNEY: Objection, you
Honor
THE COURT: Well, you asked
similar question, so I'm going to allow it
MR. TIERNEY: I believe I used th
word resided, your Honor
THE COURT: Correct
MR. TIERNEY: And she answere
yes
THE COURT: No. The testimon
will speak for itself
MR. TIERNEY: Sure
THE WITNESS: Am I doing all
5
right?
THE COURT: You're doing fine.
THE WITNESS: I'm trying to do the
best I can.
THE COURT: You're doing an
excellent job in answering the questions.
MR. CULLEN: I appreciate the
Court's indulgence.
I have no further questions. I
thank the witness for coming here today under these
trying circumstances.
THE COURT: Yes. Thank you.
Mr. Pilchesky, do you have a
follow-up?
MR. PILCHESKY: Just one question,
Mrs. Coar, sorry.
* * *
RE-EXAMINATION
BY MR. PILCHESKY:
Q. You did testify that you did appear two
days a week for a period of five or six weeks. Do
you have a recollection on what two days they were?
Was it the same two days, like the days you might
have off from work, or could they vary?
A. They could have varied. I would say they
varied
Q. Okay. More times than not was it th
weekend, or was it during the course of the week
A. I would say that on the weekend, i
probably would have been one day on the weekend an
then, you know, maybe a day during the week
Q. Okay. Thank you very much
MR. TIERNEY: No questions
THE COURT: Thank you very much
We appreciate your coming in here and testifying. I
was very helpful. And I know you have to get back
Good luck with your move
THE WITNESS: Thanks
(Whereupon, the witness wa
excused.
THE COURT: Next witness
MR. CULLEN: I subpoenaed Mr
Anthony Grande. I don't know, Mr. Grande, and I'
asking if he's here to testify
Mr. Grande, would you come to th
stand, please, sir
* *
ANTHONY F. GRANDE, having bee
duly sworn, was examined and testified as follows
DIRECT EXAMINATION
5
BY MR. CULLEN:
Q. Good morning, Mr. Grande.
A. Morning.
Q. My name is Chris Cullen. I don't know if
I had a chance to say hello to you yet today. I
appreciate your being here today. I'll try to make
my questioning brief and to the point, sir. And I
know you traveled down here, and I'm grateful for
that.
Mr. Grande, are you here as a result of a
subpoena?
A. Yes, I am.
Q. Thank you, sir.
THE COURT: Excuse me, could you
state your name and spell it for the --
MR. CULLEN: Anthony Francis
Grande, G-R-A-N-D-E.
THE COURT: Thank you.
BY MR. CULLEN:
Q. What's your address, sir?
A. 709 Shirley Lane, Dunmore, Pennsylvania.
Q. Mr. Grande, how are you employed?
A. I'm a realtor for Prudential.
Q. You're a licensed real estates agent?
A. Yes, I am.
Q. Sir, in the subpoena that was served upo
you, were there certain documents asked for
A. Yes
Q. Was a listing agreement one of thos
documents, sir
A. Yes, it is
Q. Do you have them with you here today
A. Yes
MR. TIERNEY: Your Honor, may
approach
THE WITNESS: This is just a copy
A. Okay
MR. CULLEN: Your Honor, I beg th
Court's indulgence, I want to review this quickl
with Mr. Tierney. This is the first time we have ha
a chance to see this
Can we take a five minute reces
for -- he has to make a copy of this document
THE COURT: Oh, okay
MR. CULLEN: Would that b
permissible
THE COURT: Sure. Five minut
recess
(A brief recess was taken.
THE COURT: Before we get back to
6
the questioning, I just have a request. There are a
number of people in the courtroom, and we can hear
some conversations occurring in the back, some
statements. Please, everyone, unless you're up here
testifying or asking a question, please be quiet.
Thank you.
MR. CULLEN: I'm thankful for the
Court for the five minute recess and for the
assistance of the staff in producing these copies.
Thank you very much, your Honor.
I'd like to have this document
marked as Petitioner Murphy Exhibit Number 4.
(Petitioner Murphy Exhibit Number
4 was marked for identification.)
BY MR. CULLEN:
Q. Mr. Grande, I'm going to hand you a
document, ask you if you're familiar with that
document, sir.
A. Yes. This is the Seller's Property
Disclosure Statement, Boulevard Avenue.
Q. And is this, was this executed in any way
by you, sir?
A. No. This document is prepared by the
seller.
Q. If you look at the final page of this,
sir, is that your, is that your signature as
witness
A. I witnessed that they filled it out
Q. Okay. Now, did you review this document
THE COURT: Excuse me, whic
document are you looking at
THE WITNESS: Seller's Property -
MR. CULLEN: Murphy Exhibit Numbe
4, your Honor. It's known as the Seller's Propert
Disclosure Statement
THE COURT: I have the, you gav
me the listing contract
MR. CULLEN: Oh, man. I though
we marked -- okay. You know what happened, you
Honor? There was a series of copies, and I gave yo
the wrong one. I apologize, your Honor
THE COURT: This is -- thank you
MR. CULLEN: Thank you, you
Honor. May I
THE COURT: Yes. Please continue
MR. CULLEN: Thank you
BY MR. CULLEN
Q. Mr. Grande, I'm terribly sorry t
interrupt by having the wrong document, but if
understand it right, sir, you signed and witnessed
6
this document?
A. I signed as a witness that they filled it
out. It's, that's the only purpose.
Q. I believe at that point I was going to
ask another question, sir. The question I guess I
was going to ask is, did you review that document
with them as they completed it, sir?
A. Yes. They'd ask a question, I'd give
them the answer --
Q. Okay.
A. -- that I thought was appropriate.
Example being, there were, for an example, dog or any
type of animal with the property, I have to put it
on.
Q. Disclose it. So were you with them when
they were filling this out?
A. Yes.
Q. Oh, okay. Good. That's what I was
trying to get at. The parties that filled this out
were the owners of the property?
A. Yes, they are.
Q. Those owners are who, sir?
A. Stephanie and Edward Decker.
Q. Is the property still for sale, sir?
A. No. It come off the market yesterday,
the 26th, because there is a tenant moving in. W
withdrew it from the market
Q. Okay. But prior to that -- oh, excus
me. When was, when was this placed on the market
sir
A. 5/2/07, May 2nd of '07
Q. And was it shown on a regular basis, t
the best of your knowledge? You're the listin
agent, right
A. Just a listing agent
Q. Do you have any records about the showin
of the property at any time
A. There was one party that wanted to se
it. From the records that I have, they canceled out
Other than that, I don't who showed it, because i
was called in to the office, and whoever was on floo
at that time would make the call to Mr. and Mrs
Decker -
Q. Okay
A. -- stating so. If they wrote it down
they wrote it down in the book. If not, you know..
Q. Well, to the best of your knowledge, wa
the property shown more than once
A. To my knowledge, yes
Q. Do you have any estimates, sir, I know
6
you don't have the book in front of you or any
document like that, but as a professional, sir, and
familiar in this area, do you have any idea of how
often or an estimate on how often this property was
shown during the time period you were the listing
agent?
A. At least five or six, I'd say. It could
be more.
Q. Okay. But, and would it ever be shown by
anybody other than someone in your office, sir?
A. Yes. It was Multiple Listing Service, it
could be shown by any realtor, in effect, in the
state of Pennsylvania.
Q. So it could have been shown by people not
only not in your office, but --
A. Correct.
Q. You would not have any idea about that?
A. Well, they have to call to make an
appointment.
Q. Oh. They would call you, sir?
A. No. They would call the office.
Q. All right, sir. Now, just quickly, if
you look at part 2, paragraph 2 where it says
Ownership/Occupancy, there, it's marked that the
property, as of the listing, was occupied. Was that
correct
A. Yes, it is
Q. And it's also marked, is it not, by, i
says, if yes, by whom, sellers
A. That's correct
Q. So at that point in time Mr. and Mrs
Decker were occupying the property back in May
A. Yes, they were
Q. Do you know if Mr. and Mrs. Decke
continued to occupy the property up until Februar
26th of this year
A. They moved out, I believe, July or, Jun
or July, because they purchased a new home
Q. Were you the agent of that purchase
A. Yes, I was
Q. And so do you know if, do you know a
that point in time if -- excuse me. Strike that
After Mr. and Mrs. Decker moved out o
the property, was it still being shown
A. Yes, it was
Q. Okay. And at any point in time were yo
informed that the property had to be taken off th
market, other than recently, during the time perio
of July, let's say, of 2007 up until February, let'
say the beginning of February, 2008, were you
6
informed at any time that the property had to be, was
taken off the market because someone else was
residing there?
A. No.
MR. CULLEN: I'm going to have
this marked as Number 5.
(Petitioner Murphy Exhibit Number
5 was marked for identification.)
MR. CULLEN: May I, your Honor?
THE COURT: Yes.
MR. CULLEN: Thank you.
BY MR. CULLEN:
Q. Mr. Grande, I'm going to ask you to take
a look at a document that is marked as Petitioner
Murphy's Exhibit Number 5.
A. Yes.
Q. Are you familiar with that document?
A. Yes. This is a listing contract for the
2409 Boulevard Avenue.
Q. And what's the date of that, sir?
A. May 2nd, 2007.
Q. And if you look at part 2, sir --
MR. CULLEN: Oh. Excuse me. I
just want to make sure that counsel...
BY MR. CULLEN:
Q. I'm sorry, Mr. Grande, I apologize -
A. Uh-huh
Q. -- for the interruption. If you look a
part 2, sir, of that listing agreement, if, am
correct in understanding that this was a listin
agreement from May of 2007, roughly, and it was t
end on May of 2008
A. Yes
Q. And is it unusual that sometimes yo
prematurely or before the expiration of a listin
contract take the property off the market
A. It happens
Q. Does that take notification from th
owner
A. Yes
Q. And you are to agree to that, sir
A. Well, it's their property. If they wan
to withdraw from the market or what they want, it'
their property. As long as they don't void th
contract in any way, they can do whatever they nee
to do
Q. All right. Is that your signature o
page 4 of 4, sir
A. Yes, it is
Q. And one final question, Mr. Grande --
6
A. Yes.
Q. -- I appreciate your patience, if I
understand it right, it was taken off because there
is a tenant?
A. Yes. They told me they wanted to
withdraw because there was a tenant moving in there.
Q. Did you have anything to do with securing
that tenant, sir?
A. No. I did not.
MR. CULLEN: Your Honor, I have no
further questions. Thank you.
THE COURT: Cross-examination?
MR. TIERNEY: Yes, your Honor.
* * *
CROSS EXAMINATION
BY MR. TIERNEY:
Q. Mr. Grande, my name is Jim Tierney.
A. Good morning.
Q. I'm here on behalf of Mr. Shimkus.
A. Uh-huh.
Q. I have a few questions for you.
I'd like to look at, if you have it in
front of you, I'm not sure, Murphy Exhibit 4, the
Seller's Property Disclosure Statement?
A. Yes, sir.
Q. Okay. You were asked questions wit
respect to ownership and occupancy in section 2
Correct
A. Yes, I was
Q. All right. It indicated that yo
testified earlier that the owners, the Deckers, were
resided there at the time they executed thi
document, correct
A. Yes, they were
Q. This document was executed back in May o
2007, correct
A. Correct
Q. You testified that they moved ou
sometime in June or July of 2007
A. Yes. I did. Time frame, well, that'
when the property that they bought closed. I mean,
don't know the exact date they moved out, because th
other property they were living in that they movin
into needed some work, so..
Q. Okay. Did they move right into the othe
property
A. I don't believe so
Q. Did they, how long from the time tha
they purchased the property to the time that the
moved into the property?
7
A. I believe, I can't say for sure, maybe a
week or two.
Q. All right. Did they have to do any
renovations on the property that they purchased?
A. I believe so; I'm not exactly sure.
Q. So they wanted to perform these
renovations before moving?
A. Correct.
Q. Okay. All right. With respect to
section 2, Ownership/Occupancy of the Seller's
Property Disclosure Statement, after they moved out,
did you do an addendum to this section 2 indicating
that they were no longer residing there?
A. No, I didn't.
Q. Okay. You indicated that a new tenant is
taking over the residency of this property at 2409
Boulevard March 1st.
A. Yes.
Q. Do you know if anyone else resided there
in January or February of this year?
A. Well, that, I was told by Mr. and Mrs.
Decker, as a matter of fact, that her father was
going to be using the property at certain times.
This happened in October, because the property was
for sale, it was a listing selling it, contract and
deal fell through, and when I went to put it back o
the market, they said that her father would be usin
the residence
Q. Okay. This is back in October of '07
A. October of '07
Q. Okay. Did you have any subsequen
conversations with the Deckers
A. After that, no
Q. Okay. All right. Had you bee
physically at the premises
A. Yes. I've been there
Q. Okay. How about the year 2008, Januar
or February
A. No
Q. Okay. How about in November or December
2007
A. November, 11th or 13th, Veterans Day, w
did an open house, I was there
Q. Is that the only time you've been ther
the last four months
A. Yes
Q. Okay. At the time the Seller's Propert
Disclosure Statement, which is Exhibit 4, wa
executed, was the listing contract executed at th
same time?
7
A. Both of them the same evening.
Q. Okay. Same evening.
MR. TIERNEY: I have no other
questions, your Honor.
THE COURT: Thank you. Any
redirect?
MR. CULLEN: May I, your Honor?
* * *
REDIRECT EXAMINATION
BY MR. CULLEN:
Q. Mr. Grande, a few quick questions. First
one is, there was a sale set up for October, is that
what you are saying?
A. Property was pending, and then the deal
fell through and we went back on the market in
October.
Q. And that's at the time you just testified
that you were told that Mr., by Mr. Decker and his
wife, or either one or both, it's unclear, but you
were told something to the effect that Mr. Decker's
father-in-law would be, what would he be doing at the
property?
A. They just told me that he would be
residing, he'd be using the property. That's all
they told me.
Q. Now -
A. That's why I kept it as 24 hour notic
for showings
Q. Is it typical that someone selling
property will have someone using the property whe
you're trying to sell it
A. I mean..
Q. Did you find that unusual
A. No
Q. Has it happened before to you? Well, i
there is tenants in there, you're selling you
property, sir, I mean, you can't throw the tenant
out until the property is sold
A. All depends on the buyer. They just tol
me that, you know, her father would be using th
property
Q. Did Mr. Decker tell you that hi
father-in-law was going to be a tenant
A. No. They just said he was going to b
using the property
Q. Now, when you did the open house o
November 11th -- right? -- Veterans Day
A. Yes
Q. Was that the exact day, sir
A. Veterans Day, Sunday.
7
Q. Okay. When you did the open house, did
you notice that anybody else was residing, was using
the property?
A. Yes, I did.
Q. How did you know that?
A. Well, when I went in, I turned the lights
on upstairs, and the alarm clock was going off
upstairs in the one bedroom, so I shut it off.
Q. Was there any other indication than the
alarm clock?
A. There was bedding on the floor.
Q. Okay. Was there anything else that would
indicate it?
A. Just, I just went in, turned the lights
on and waited for, you know, people to show.
Q. So the only thing was there was bedding
on the floor in one of the upstairs bedrooms?
A. Yes.
Q. Was an alarm clock going off?
A. Yes.
Q. As part of your open house duties did you
take a look around the house?
A. I took a look around. I don't open
closet doors, it's not my place to open closet doors
or open any drawers in the furniture.
Q. Well, I do notice that there is som
notice here given that the property had certai
appliances. Is that right
A. Correct
Q. And those appliances -- I'm trying t
find the listing of them here. Do you know wher
they might be listed, sir, to help speed it up
A. Oh. Excluded items, refrigerator i
kitchen not included
Q. So there was no other appliances that yo
would, that would be available to any purchaser, i
that right
A. The stove was there, the dishwasher wa
there, but also the refrigerator was there becaus
Mr. Decker could not take it to his property becaus
it wouldn't fit in the space that he had, so he lef
the original refrigerator there
Q. Did you happen to look in th
refrigerator
A. I didn't open the door, sir. It's not m
place
Q. Did you see anything else that woul
indicate anybody was using the place
A. Just like I said, the bedding upstairs i
the room and the alarm clock.
7
Q. Okay.
MR. CULLEN: One second, your
Honor, please.
BY MR. CULLEN:
Q. And finally --
MR. CULLEN: And I do mean
finally, your Honor --
BY MR. CULLEN:
Q. -- finally, Mr. Grande, you didn't open
any closets, you didn't open the refrigerator, and I
respect that. Did you see any boxes or anything?
A. No.
Q. Okay. I have no further questions.
Thank you very much, sir.
MR. TIERNEY: Just a few more,
your Honor.
THE COURT: Okay.
* * *
RECROSS EXAMINATION
BY MR. TIERNEY:
Q. Are you, you didn't see furniture during
this time?
A. There was a love seat in there, kitchen
table, TV stand.
Q. Was there a TV on the stand?
A. I don't recall
Q. How about a futon
A. I didn't see the futon
Q. You saw a couch, love seat
A. Yeah. Couch and a love seat
Q. Okay. And kitchen table
A. Kitchen table
Q. Okay. Any other items of furniture tha
I haven't asked you you might have seen? And this i
in November
A. I can't recall, just from what I remembe
being there
Q. All right. Do you remember if there wer
any videotapes or anything like that
A. No. I just don't remember
Q. Okay
MR. TIERNEY: All right. No othe
questions
THE COURT: Okay. Thank you ver
much
MR. CULLEN: Your Honor, if I may
I'd like to call Mr. Edward Decker
THE COURT: Yes
* *
EDWARD DECKER, having been duly
7
sworn, was examined and testified as follows:
DIRECT EXAMINATION
BY MR. CULLEN:
Q. Good morning, Mr. Decker. How are you,
sir?
A. I've had better things to do.
Q. Mr. Decker, you're here as a result of a
subpoena. Is that right?
A. That's the only reason I'm here, sir.
Q. And can you, for the purpose of the
record, state your name and address?
A. Edward J. Decker, 1765 Capouse Avenue,
Scranton, PA.
THE COURT: Could you spell that,
please, name of your street?
THE WITNESS: Capouse,
C-A-P-O-U-S-E.
THE COURT: Thank you.
THE WITNESS: 18509.
THE COURT: Thank you.
BY MR. CULLEN:
Q. Mr. Decker, were you in the courtroom
while all the other testimony was given today?
A. Yes, sir.
Q. And you're familiar with -- may I, sir?
Mr. Decker, I'm going to show you what's
been marked as Murphy Petitioner Number 3, and ask if
you, if you're familiar with that document.
A. Yes. That's the down payment from Miss
Jennifer Coar for renting of my house.
Q. And that's the house on 2409?
A. Boulevard Avenue.
Q. Thank you, sir. And did you cash that
check, sir?
A. My wife did.
Q. All right. But it was cashed?
A. Yeah.
Q. Mr. Decker, I'm going to show you what's
been marked as Petitioner Murphy Exhibit Number 2,
sir.
A. That's the second part of the down
payment. And yes, it was cashed.
Q. Thank you, Mr. Decker. I'm going to show
you what has been marked as Petitioner Murphy Exhibit
Number 1. Are you familiar with that document?
A. Yep. That's the lease that me and Jen
had entered into as of March 1st, I believe it
starts.
Q. Now, if I understand it right from Miss
Coar's testimony, sometime around within a few days
8
or so of her giving you a check on January -- excuse
me, sir -- January 23rd for half of the down payment,
you made available to her the premises at 2409
Boulevard Avenue for her to get in and do painting
and move boxes and things like that. Is that
correct?
A. Yes, sir.
Q. Now, you also gave her the code for the
lock box so that she would have access to enter. Is
that correct?
A. Yes, sir.
Q. Now, at that time, in January, last week
or so of January, did you ever tell Mrs. Coar that
your father-in-law, Mr. Shimkus, was going to be
residing at that location?
A. When we showed her the house that
evening -- actually, I showed her, it wasn't we, it
was just myself -- I told her that my father-in-law
did reside there, stayed there, if she saw him, don't
be alarmed.
Q. Now, I need to know this for the purpose
of the record, did you tell her he resided there, or
did you tell her he may stay there from time to time?
Which was it, sir?
A. I don't recollect, your Honor, I don't.
I, I mean, I would say I said -- I don't know. I
was just a conversation between me and her just t
keep her abreast of the situation. It wasn'
something that I said, oh, you know, you need t
know
Q. Thank you. Mr. Decker, did you have
lease with Mr. Shimkus to reside at 2409
A. Do you have in-laws
THE COURT: Excuse me. Pleas
answer the questions
A. No. He's my father-in-law. We did no
have a lease
BY MR. CULLEN
Q. Did he pay you rent
A. No
Q. Did he pay the utility bills
A. He paid -- yes
Q. Were they in his name
A. No
Q. They are in your name
A. I saw no reason -- no
Q. You heard Mrs. Coar testify just recentl
all the utility bills were switched over to her nam
because she's taking possession I believe March 1st
which is Saturday, according to the lease. Is that
8
correct?
A. That's correct.
Q. And were those utility bills in your name
prior to being switched over to Mrs. Coar?
A. Yes. Because it was my house.
Q. Did you pay the taxes on 2409, the school
district taxes, the city property taxes?
A. All the time.
Q. You paid the taxes, they are in your name
and your wife's name?
A. Yes. Right, right.
Q. You're the owner of record, are you not?
A. Yes.
Q. Did you bring those copies of those bills
that I asked to, subpoenaed with --
A. No. I couldn't find them. You only gave
me a day's notice. Are you asking about all the
paperwork? My utility bills get shredded after I pay
them. And my taxes, I just couldn't find them, your
Honor. I worked the last few days, you know, at a --
Q. Mr. Decker, I apologize for not saying
this at the beginning, and I hope the Court will
indulge me with it. How are you employed, sir?
A. I work for a family business.
Q. Okay. And what is that business?
A. Crispino's Refrigeration & Air
Conditioning.
Q. Thank you, sir. You heard the questions
just a few minutes ago with Mr. Grande. Did you not,
sir?
A. Uh-huh.
Q. And he noticed, he testified upon
questioning that the second section, and I'll make it
available to you, sir, point two of the Murphy,
Petitioner Murphy Number 4, talks about ownership and
occupancy of the 2409 Boulevard Avenue property. And
are you familiar with that document, sir?
A. Yes.
Q. All right. Did you execute that
document, sir?
A. Yes.
Q. All right. And it's noted there that it
was occupied at the time that document was executed
sometime in May of 2007, that at that point in time,
you and your wife were residing at that address. Is
that correct?
A. Yes, sir.
Q. And that subsequent to that, sometime in
July that you moved from that address to your current
address. Is that correct?
8
A. Yes, sir.
Q. And it also, I believe Mr. Grande
mentioned that there were requirements put in the
showing that there would have to be a call made to
his office to show the property. Is that your
understanding?
A. As far as I know, that's the way it goes,
anyways, so...
Q. Was there any calls made to you or was
there any requirement of yours that calls be made to
you in advance before showing the property?
A. For the first, I believe, two and a half
to three months, yes. And then as of October 15th
again, around there, again, that we received 24 hours
notice.
Q. And why was that?
A. First three months I lived there, and as
of October 15th, Frank was going to reside there or
stay there when he was, whenever he wanted.
Q. And did you notify the, did you notify
anyone that your father-in-law was going to, I
believe the phrase is, stay there from time to time
after October 15th?
A. In terms of who, like?
Q. The real estate --
A. Grande? I mean, he has it in th
paperwork
Q. Did you put it in writing
A. As far as I know he did
Q. Well, it's not on any of those forms
Did you ever update any of those forms, sir
A. You'd have to ask him. He showed me
document where he says as of a certain date it was -
he just showed it to me. I don't know what it says
You're asking a question, I don't know when, he jus
said that. He said he marked it down. Did he put i
in writing? I don't know
MR. CULLEN: Your Honor, I may as
to recall Mr. Grande for that document
THE COURT: Okay
MR. CULLEN: Is that permissible
THE COURT: That would b
permissible
MR. CULLEN: Thank you
BY MR. CULLEN
Q. As to the lease with Mrs. Coar, is ther
anything in that lease that indicates that th
property is being resided in or stayed in by you
father-in-law
A. I didn't make the lease. I don't really,
8
my friend, who is an insurance agent, happens to have
properties, and he said here's, you know, just the
basic lease to, you know, cover both of youse. When
I explained to Jen the reason why I wanted this lease
is because I never been with this at all and the
house market went down, so I said I just want to
protect both of us, basically. That was our main
reason.
Q. Well, is it because the deal fell through
in October to sell the house?
A. If it's still on the market, that's a
pretty good reason, yeah.
Q. And you wanted to get some income out of
the property, is that why you executed the lease?
A. That would be nice, yes.
Q. Is that yes or no, sir?
A. Yes, sir. That would be very nice.
Q. So your father-in-law didn't pay you
rent, father-in-law didn't have a lease, and the
reason why you leased this to Mrs. Coar and took her
money and allowed her to have access to the property
and moving her belongings in January and February as
a run up to her taking over according to the lease on
March 1st is because you needed money?
A. No. Because I didn't know her. And --
Q. You don't need her money, you didn't need
rental income from that apartment, that property?
MR. TIERNEY: Objection, your
Honor. It's badgering him now.
THE COURT: Why.