HomeMy WebLinkAbout02-6191 GOSS, Individually and as Personal
Representative for the ESTATE OF
DOROTIlY E. BOILER, Deceased
Plaintiff
Vo
PNC Bank, National Association, PNC
Financial Services Group, Inc., PNC Advisors,
and Charmaine D. Bell, Defendants
IN THE COURT OF coMMON PLEAS
cUMBERLAND couNTY, PA
CIVIL ACTION O~'~/4/t4
JURY TRIAL DEMANDED
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254275.1\LMBXADMINISTRAT
DENNIS GOSS, Individually and as Personal
Representative for the ESTATE OF
DOROTHY E. BOHER, Deceased
Plaintiff
PNC Bank, National Association, PNC
Financial Services Group, Inc., PNC Advisors,
and Charmaine D. Bell,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND cOUNTY, PA
CIVIL ACTION
NO. ~! ~
jURy TRIAL DEMANDED
COMPLAINT
AND NOW comes the Plaintiff, Dennis Goss, Individually and as Personal
Representative to the Estate of Dorothy E. Boher, Deceased by and through his attorneys,
Angino & Rovner, P.C., and respectfully represent the following: THE pARTIES
1. The Plaintiff, Dennis Goss, is an adult individual who currently resides in
Bloomsburg, Columbia County, Pennsylvania.
2. The Plaintiff, Dennis Goss, was named as Executor in the Will of Plaintiff's
Decedent, Dorothy E. Boher.
3. The Plaintiff, Dennis Goss, and Plaintiff's Decedent, Dorothy E. Boher were
second cousins.
4. The Plaintiff's Decedent, Dorothy E. Boher, was a resident of Cumberland
County, pennsylvania, until the time of her death.
5. The Plaintiff' s Decedent, Dorothy E. Boher died on February 11, 2001.
6. The Defendant, PNC, National Association, hereinafter ("PNC Bank") does
business in Camp Hill, Cumberland County, Pennsylvania.
254275.l~LMB~ADMIN ISTRAT
7. The Defendant, PNC Financial Advisors, was at all times relevant hereto a service
mark of The PNC Financial Services Group, Inc., hereinafter ("PNC F~nanma / for investment
management, fiduciary and certain banking services by PNC Bank, N.A. and PNC Bank,
Delaware.
8. The Defendant, Charmaine D. Bell, was at all relevant times hereto an employee,
agent, and servant of PNC Bank acting within the course and scope of her employment.
STATEMENT OF jUR1SDICTION~
9. paragraphs 1 through 8 above are incorporated herein by reference and made a
part hereof as if set forth in full.
10. The Plaintiff's Decedent, Dorothy E. Boher, was at all relevant periods covered
by the instant action, a resident of Cumberland County, Pennsylvania.
! 1. The Defendant, PNC Bank, was at all relevant times doing business within
Cumberland County, Pennsylvania.
12. Venue is proper in that Plaintiff's Decedent, Dorothy E. Boher, resided in
Cumberland County, and Defendant, PNC Bank caused the events to occur within Cumberland
County, pennsylvania, and Defendant, PNC Bank, maintained a business office in Cumberland
County, Pennsylvania, so as to invoke venue within Cumberland County. FACTS APPLICABLE TO ALL COUNTS
! 3. paragraphs 1 through 12 above are incorporated herein by reference and made a
part hereof as if set forth in full.
14. The Trust Agreement is attached hereto as Exhibit A.
15. The Plaintiff's Decedent, Dorothy E. Boher created a revocable living trust on or
about FebruarY 16, 1996, naming PNC Bank, N.A., hereinafter ("PNC Bank") as Trustee.
254275.1~LMBLa'DMIN1STRAT
16.
The personal property at issue is a will written by now Plaintiff's Decedent,
Dorothy E. Boher on August 1, 1995.
17. The Plaintiff, Dennis Goss, was appointed as the personal representative of the
Estate of Dorothy E. Boher in the Will of Plaintiff's Decedent, Dorothy E. Boher, and qualified
as such.
18. A copy of the Will is attached hereto as Exhibit B.
19. Pursuant to the Trust Agreement, upon the Plaintiff's Decedent, Dorothy E.
Boher's death, the remaining principal and income balance was to be distributed to her personal
representative, Plaintiff, Dennis Goss, for distribution as part of her Estate.
20. To date, there has been no distribution of the remaining principal and income
balance to Plaintiff' s Decedent's personal representative, Plaintiff, Dennis Goss.
21. The Plaintiff, Dennis Goss, as the named Executor had the right to possess the
original will in order to distribute property and carry out the last testaments of and with regard to
the Estate of Plaintiff's Decedent, Dorothy E. Borer.
22. The Plaintiff, Dennis Goss, at all relevant times hereto acted in good faith.
23. On or about December of 1997, Defendant, Charmaine D. Bell, acting as an
employee, agent, and servant of PNC Bank, took possession of Dorothy E. Boher's original Will
along with other personal property.
24. As Trustee for the Plaintiff's Decedent, Dorothy E. Borer, Defendants, PNC
Bank, and its employee, Defendant, Charmaine D. Bell had a duty to act in good faith and
exercise due care with regard to the real and personal property of Plaintiff's Decedent, Dorothy
E. Boher.
254275.1 ~LMBX,ADMINISTKAT
25. By removing the Plaintiff's Decedent, Dorothy E. Boher's, personal property,
including her original Will, Defendant, PNC Bank, and its employee, Defendant, Charmaine D.
Bell, accepted custody and control over the will.
26. As Trustee for the property of Plaintiff's Decedent, Dorothy E. Boher,
Defendants, PNC Bank and Charmaine D. Bell, had knowledge of the value and purpose of the
Will. 27. There is no record that Defendant, PNC Bank, ever-relinquished possession of the
original Will once it had taken possession.
28. The Defendant, PNC Bank, was unable to produce the original Will when asked
to do so by the duly appointed Executor, Plaintiff, Dennis Goss.
29. The aforesaid incident was caused solely and exclusively by the conduct of the
Defendant, as set forth above and was due in no manner whatsoever by any act or failure to act
on the part of the Plaintiff, Dennis Goss or Plaintiff' s Decedent, Dorothy E. Boher.
30. The Defendant, PNC Bank, directly or indirectly controlled or enjoyed the right to
· 's actions, as she was an employee of Defendant, PNC
control Defendant, Channmne D. Bell
Bank. 31. The actions taken by the Defendant, Charmaine D. Bell, were within the scope of
the duties owed to the Plaintiff's Decedent, Dorothy E. Boher by Defendant, PNC Bank's
employees.
32. Defendant, Charmaine D. Bell's actions were within her scope of employment as
an employee and representative of Defendant, PNC Bank.
254275. I\LMBL&DMIN ISTRAT
33. Other responsible causes, including the conduct of the Plaintiff, Denms Goss, and
Plaintiff's Decedent, Dorothy E. Boher, and third parties have been sufficiently eliminated at a
hearing held on March 5, 2002, before the Cumberland County Register of Wills.
34. An Opinion letter from the Register of Wills' attorney is hereto attached as
Exhibit C. employees had exclusive control over the Will
35. Defendant, PNC Bank, and its
from the time they removed it from Plaintiff's Decedent, Dorothy E. Boher's home until the time
of her death.
36. Defendants, PNC Bank and its employee Defendant, Charmaine D. Bell, by
taking possession of the Will, implied that they would exercise reasonable care over the will.
37. Plaintiff, Dennis Goss, as the Personal Representative of the Estate of Dorothy E.
Boher, spent a considerable amount of time and expense in his efforts to probate the Will and
carry out the wishes of Plaintiff's Decedent, Dorothy E. Boher.
38. Plaintiff, Dennis Goss, was granted Letters of Testamentary on April 16, 2002.
39. Defendant, PNC Bank, continues to hold money in trust and refuses to turn over
the balance of the trust to Plaintiff, Denis Goss, for distribution in accordance with the final
testaments of Plaintiff' s Decedent, Dorothy E. Boher.
40. Defendant, PNC Bank, has engaged in outrageous behavior by holding and
continuing to hold in trust that money which should have been turned over to Plaintiff, Dennis
Goss. 41. As a direct result of PNC Bank's failure to produce the original Will, the Plaintiff,
Dennis Goss, as the Executor of the Estate of Dorothy E. Boher, has been forced to undergo a
254275. l \LMB~ADMIN ISTRAT
costly and timely proceeding to probate a copy of Plaintiff's Decedent's Will, and incur the
expense of doing such.
42. As a result of the above mentioned proceeding a copy of the Will was admitted to
probate.
43. As a direct result and consequence of Defendants actions set forth above, Plaintiff
Dennis Goss, sustained harm including but not limited to the following:
(a) administrative charges for overseeing the trust in the amount of $11,500;
(b) attorney fees for Defendant, PNC Bank, in reference to the handling of the
above described matter, in the amount of $7,500;
(c) missed discounts on tax filings, in the amount of $9,750; and
(d) Plaintiff, Dennis Goss' attorney fees in reference to the above-described
matter, in the amount of $15,844.31.
44. As a further result of the conduct of the Defendant, PNC Bank and its employee,
Charmaine D. Bell, Plaintiff Dennis Goss has suffered a loss of earnings.
45. As a further result of the conduct of the Defendant, PNC Bank and its employee,
Charmaine D. Bell, the Estate of Dorothy Boher has suffered a loss in investments due to the
delay in distribution.
COUNT I
DENNIS GOSS iNDIVIDUALLY AND AS PERSONAL REPRESENTATIVE FOR THE
ATIONAL ASSOCIATION PNC
FINANCIAL SERVICES GROUP PNC ADVISORS AND CItARMAINE D. BELL
~ BREACH OF FIDUCIARY DUTY
46. Paragraphs 1 through 45 of the Plaintiff's Complaint are incorporated herein by
reference and made a part hereof as if set forth in full.
254275. I\LMBSADMIN ISTRAT
47.
Defendant, PNC Bank had a fiduciary duty, to Plaintiff's Decedent, Dorothy E.
Boher, as her named Trustee.
48. Defendant, PNC Bank breached the duty it owed to Plaintiff' s Decedent, Dorothy
E. Boher by failing to exercise the level of care required by a Trustee.
49. Defendant, PNC Bank, had a duty to Plaintiff' s Decedent, Dorothy E. Boher, as
her named Trustee.
50. Defendant, PNC Bank, breached the duty it owed to Plaintiff's Decedent, Dorothy
E. Boher by:
(a) failing to properly and adequately monitor the activities of its employee,
Defendant, Charmaine D. Bell;
(b) failing to take precautionary measures necessary to prevent the losses
suffered by Plaintiff; and
(c) failing to exercise the level of care required by a Trustee.
51. The aforesaid incident was caused, in whole, as a direct and proximate result of
the negligence, carelessness, and recklessness of the Defendant, PNC Bank.
52. The facts and circumstances set forth above are not the kind of events that occur
in the absence of negligence.
53. As a result of the aforesaid described incident, Plaintiff, Dennis Goss has
sustained harm as set forth above.
WHEREFORE, Plaintiff, Dennis Goss, demands judgment against the Defendant, PNC
Bank, for an amount in excess $25,000, the amount requiring compulsory arbitration.
COUNT II
DENNIS GOSS INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE FOR THE
ESTATE OF DOROTHY E. BOHER V. PNC BAN NATIONAL ASSOCIATION PNC
FINANCIAL SERVICES GROUP PNC ADVISORS AND CHARM_AINE D. BELL
254275.1\LMB~DMIN1STRAT
54.
BREACH OF BAILMENT
Paragraphs 1 through 53 are hereby incorporated by reference and made a part
hereof as if set forth in full.
WHEREFORE, Plaintiff, Dennis Goss, demands judgment against Defendant, PNC Bank
and its employee, Defendant, Charmaine D. Bell, for all losses which are a natural consequence
and proximate result of the negligent and reckless tortious acts of Defendants and breach of
bailment,
including lost of interest and investment money and litigation fees and costs, in an amount in
excess of $25,000, the amount requiring compulsory arbitration.
Respectfully submitted,
ANGINO & ROVNER, P.C.
Lisa M. Benzie, ~sqm~e
I.D. No. 89397
4503 N. Front Street
Harrisburg, PA 17110
(717) 238-6791
Counsel for Plaintiffs
Date: /~/-~/~ ~-
254275.1~LMBXADMINISTP"AT
VERIFICATION
I, Dennis Goss, Plaintiff have read the foregoing COMPLAINT and do swear or affirm that
the facts set forth in the foregoing are true and correct to the best of my knowledge, information and
belief. I understand that this Verification is made subject to the penalties of 18 Pa.C.S.A., Section
4904, relating to unswom falsification to authorities.
I0
254275-I
Exhibit A
of
t~!_D_ED REVOCABLE TRUST AGRE,EMEN.T
THIS AGREEMENT 01= TRUST, ex~ut~.A in duplicate this ..~ day
(h~re~r ~1~ Setdor),
and PNC BANK, National Association, (hereinafter called Trus,,~),
FiRST: Settlor grants, assigns and sets over to Trusu:e and its succ,'ssors,
all the property described in Schedule 'A', annexed hereto and said property, together with
all other property, real or personal, that may be addexi to the Trust (such property and
additions being hereinafter called principal), shall be held by Trustee, IN TRUST, upon the
following terms.
~ 'IYust~ shall manage all property comprising the principal of this
Trust and shall collect the income therefrom and accretions thereto and shall pay the net
income and hold and distribute the principal of said Trust as follows:
(A) TrusU.'e shall pay the net income therefrom to Settlor for and during his
or her lifetime, subject to the provisions of Item FIFTH, in such periodic installments as
Trustee shall find convenient but at least as often as quarmr-ann,mlly.
(B) Upon the death of Settlor, Trustee shall distribute the then remaining
principal and any accumulated or undistributed income to Settlor's executor or administrator
for distribution as a part of his or her estate.
~ The principal and income of ~his Trust shall be fre~ from
anticipation, assignment, pledge or obligation of $~ttlor and shall not be subjcs:t to any
execution or attachment or to voluntary alienation.
FOURTI-I: Trustee shall have the following powers in addition to those
vest~ in it by law and by other provisions of this Trust, applie, ahle to all property, whether
principal or income, exercisable without court approval, and effective until actual distribution
of all property:
(A) To retain any or all of the assets of this Trust, real or personal,
including st~ck of Truste~, or of its parent holding company, without regard to any principal
of diversification or risk.
('B) To invest in all forms of property, including sto~k, common trust funds
and mortgage investment funds whether operated by Trustee, or its parent holding compimy,
without restriction to investments authorized for Pennsylvania Fiduciaries, as it deems proper,
without regard to any principal of diversification or risk.
(C) To sell at public or private sale, to exchange or to l,'~e for any period
of time, any ~ or personal property and to give options for sales, exchanges or leases, for
such prices and upon such t~rms or conditions as it deems proper.
t'D) To allocate _rec_e-ipts and expenses to principal or income or partly to each
as Trustee from time to time thinks proper in its sole discretion.
(E') T6 hold property in the name of Settlor or in its name
designation of any fiduciary capa:ity, or in the name of a nominee or unregistered.
without
][[]~E~ Trustee may apply the net income of this Trust for the support
of Settlor should he or she by reason of age, illness or any other muse, in the opinion of the
Trustee, be incapable of disbursing it; and Trustee is further authorized to expend or apply
from the principal of this Trust such sums as it, in its sole discretion, may, from time to time
think advisable for the support of Settlor to maintain him or her in the station of life to which
he or she is accustomed at the creation of this Trust, or during illness or emergency.
SIXTI-I: Subject to the approval of Trusme, anyone may add property, re. al
or l~rsonal, to the principal of this Trust by dee_H, will or otherwise.
~ Trustee shall reeeive compensation for the performance of its
functions hereunder in accordance with its standard schedule of f~s in effect from time to
time during the period over which its service-~ are performed.
EIGHTH: Settlor reserves to himself or herself the right,by an instrument
in writing intended to take effect during Settior's lifetime signed by Settlor and delivered to
Trustee to revoke or amend this Agreement in whole or in part provided that the duties,
powers and liabilities of Trustee shall not be substantially changed without its written consent.
NINTH: The situs of this Trust for administration and accounting purposes
shall be in the County of Cumberland and Commonwealth of Pennsylvania, and all questions
pertaining to the construction or validity of the provisions of this instrument shall be goveme~l
3
by the laws of that Commonwealth.
IN WITNESS WHEREOF, Settler has hereunto set his hand in the day a.nd ye. ac
first above written and Trustee has exex;utexi this insWdment and caused its corporate mai to
be affixed hereto. ~Dr?'~ E. ~e~
A'f'FEST:
- ~- ('SEAL)
PNC BANI(, National Asr, ociation
COMMONWEALTH OF PENNSYLVANIA )
)SS:
COUNTY OF CUMBERLAND )
known to me (or satisfactorily proven) to be the person whose name is
subseribexi to the within insla'ument, and aCknowledgext that s/he exeeut,-d the same for the
purpose therein contained.
IN WlTNT~S WHEI~OF, I have hereto set my hand and notarial
COMMONWfiALTfi OF PENNSYLVANIA )
)SS:
COUNTY OF CUMBER.LAND )
.--/r--~$.~_. O'~--~; Ce~"'- , of PNC BANK, National Association, a
authorized to do ~o, executed the foregoing instrument for the purpose therein contained by
signing the name of the corporation by himself as ~./['Ge Pc~ ~- 'Tr-tx s L~- O-~. ,k c-c---
IN WITNESS WHEREOF, I have hereunto s~t my hand and official seal.
Notary Public
' Ncna~fa~ _¢,~t
Deb'aA Sml~, Notary Publi~
Han'43den Twp., C;um~erL3r~ County
, MyComm~ss~°n ..Eq:i~July8, lgg6
Fax Shee
PNC Bank. National Association
42'~2 Carlisle Pike
Camp [-IJJI. PA 17011
PNCBANK
This fax may contain privileged and confidential Information intended only for the use of the eddresse(s) named
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If you do not receive a clear transmission, call:
000~.68-(,,(.z-~/Juiy zl, 1995/EGM/NLB/,154.09.1
OF
DOROTI-~' E. BOHER
I, DOROTHY E. BOILER, of the Borough of Lemoyne, Cumberland County, Pennsylvania,
being of sound and disposing mind, memory and understanding, do hereby make, publish and declare
this as and for my Last Will and Testament, hereby revoking and making void any and all Wills or
Codicils at any time heretofore made by me.
ARTICLE I
I direct the payment of all my legal debts, and the expenses of my last illness and funeral from
my Estate as soon after my death as conveniently may be done. I direct that all taxes that may be
assessed as a consequence of my death, of whatever nature and by whatever jurisdiction imposed, shall
be paid from my Residuary Estate as pan of the expense of the administration of my Estate.
ARTICLE II
I give and bequeath my automobile(s), household and personal effects and other tangible
personalty of like nature (not including cash or securities), together with any existing insurance thereon,
unto my cousin, DENNIS P. GOSS, of Mechanicsburg, Pennsylvanifi, provided he survives me.
000468-00005/J ulY 21, 1995/EGM/NLB/4D4t)9.~
ARTICLE VII
I give and bequeath the sum of Ten Thousand ($10,000,00) Dollars unto my friends, JOHN
McLAREN and bfELISSA McLAREN, of New Bloomfield, Pennsylvania, or the sur,'ivor of them,
provided that should both predecease me, I give and bequeath the same unto their then-living issue, per
stirpes by representation.
ARTICLE VIII
I give, devise and bequeath all the rest, residue, and remainder of my Estate, of whatsoever
nature and wheresoever situate, as follows:
A. Twenty-five (25%) percent thereof unto my cousin, OPAL DUFFY VAUGHN, of
Mount Union, Pennsylvania, provided that should she predecease me, I give, devise and bequeath her
share unto her then-living issue, per stirpes by representation.
B. Twenty-five (25%) percent thereof unto my cousin, BETTY PAINTER, of Cassville,
Pennsylvania, provided that should she predecease me, I give, devise and bequeath her share unto her
then-living issue, per stirpes by representation.
C. Twenty-five (25%) percent thereof unto my cousin, DENNIS P. GOSS, of
Mechanicsburg, Pennsylvania, provided that should he predecease me, I give, devise and bequeath his
share unto his then-living issue, per stirpes by representation.
D. Twenty-five (25 %) percent thereof unto my cousins, RAYMOND F. DUFFY and ANNA
DUFFY, his wife, of Three Springs, Pennsylvania, or the survivor of them, provided that should both
predecease me, I give, devise and bequeath the same unto their then-living issue, per stirpes by
representation.
E. If any of the persons named in this Article VIII predecease me without leaving issue to
survive, I direct that the share of such deceased beneficiary without living issue shall be distributed pro
rata among the remaining persons described herein based on their proportionate share of the residue of
my Estate.
ARTICLE IX
In the event that any beneficiary of my Will shall not have reached the age of twenty-one (21)
years at the time for distribution of his or her share, I give, devise and bequeath the share of each such
beneficiary unto PNC BANK, N.A., Camp Hill, Pennsylvania in separate TRUST, to hold, manage,
invest and reinvest the share so received and the accumulation on income thereon, and to use and apply
the income and principal, or so much thereof as, in Trustee's discretion may be necessary or appropriate
for such beneficiary's support and education (including college education, both graduate and
undergraduate, and vocational training beyond high school) without regard for his or her ability to
provide for such support or education or to make payment for these purposes, without further
responsibility, to such beneficiary or to any person taking care of such beneficiary. When such
beneficiary shall have achieved the age of twenty-one (21) years, Trustee shall distribute the principal and
any undistributed income thereon unto such beneficiary, at which time this Trust shall terminate. In the
event any beneficiary dies before receiving his or her final distribution hereunder, the Trust as to that
beneficiary shall terminate and the balance of principal and any undistributed income shall be paid over
to such beneficiary's personal representative.
ARTICLE X
I direct that the interest of the beneficiaries shall not be subject to anticipation or to voluntary or
involuntary alienation.
000468-00005/July 21, 1995/EGM/NLB/45409. i
ARTICLE
If at any time during the continuance of an3, Trust created hereunder, the Trustee in its sole and
absolute discretion determines that the size of any individual Trust has become so small as to be
impractical to continue to hold in Trust and uneconomical to continue to administer as a Trust, then in
such circumstances, the Trustee may without further authorization distribute the balance of the principal
and income in such Trust to the beneficiary then-entitled to the income therefrom, and upon such
distribution the Trustee shall be released from further obligation with respect to the Trust and shall not
be subject to any claim from any person who may have had a future interest in such Trust had it been
continued in Trust.
ARTICLE XIII
I name, constitute and appoint DEN~'IS p. GOSS, of Mechanicsburg, Executor of this my Last
Will and Testament. Should DENNIS p. GOSS fail to qualify or cease to so act, I name, constitute and
appoint PNC BANK, N.A., Camp Hill, Pennsylvania, alternate Executor to complete the administration
of my Estate. I direct that no fiduciary appointed hereunder shall be required to post bond for the faithful
administration of the duties required in any jurisdiction.
IN WITNT_.SS $~,~-I~EREOF, I have hereunto set my hand and seal to this. mv Last Will and
Testament, this/r-oAf-day of ~.t~d~.,~.' , 1995.
f ~' DOROTHY E-.~.'BOIt'ER (SEAL)
Signed, sealed, published and declared by the above-named Testatrix, as and for her Last Will
and Testament, in the presence of us, who at her request, in her presence and in the presence of each
other, have hereunto subscribed our names as witnesses.
000468-0~005Ll'uly 2 I, ! 995/EGM/NLB/45409. ~
ACKNOWLEDGMENT
COMMONWEAL~ OF PENNSYLVANIA .
COUNTY OF CUM-BERLAND
SS
We, DOROTHY E. BOHER, ~ ~,rll~rt~J C. [o"/~e c~nci"~-e' ,~ ,c vi~. C.~c, J~ ~ (~, ,the
Testatrix and the witnesses, respectively, whose names are signed to the attached or foregoing instrument,
being first duly sworn, do hereby declare to the undersigned authority that the Testatrix signed and
executed the instrument as her Last Will and that she had signed willingly and that she executed it as her
free and voluntai-y act for the purposes therein expressed, and that each of the witnesses, in the presence
and hearing of the Testatrix, signed the Will as witness and that to the best of his/her knowledge the
Testatrix was at that time eighteen years of age or older, of sound mind and under no constraint or undue
influence.
DOROTHY E,) BOH~R
Witness
Witness
Subscribed, sworn to and acknowledged before me by DOROTHY E. BOILER, Testatrix, and
witnesses, this }?-~ day of 1995.
"Notarial Seal
NBII~ I. Blstllne, Notary Public
Len~_ Boro. Cumberla,d County
My Commission Expires Nov. 23, 1998
Notary Publlc
Exhibit C
FRDM. ~: SA I D I S, SHUFF, FLOWE
S
JOHN E. 5LIKE
ROBERT C. SAIDIS
GEOFFREY 5.5HUFF
JAMES D. FLOWER, ~R.
CAROL J. LINDSAY
.JOHNNA I, KOPECKY
KARL M. LEDEBOHM
JOSEPH L. H1TCHINGS
THOMAS E. FLOWER
FORREST N. TROUTMAN,
Mrs. Mary C. Lewi~
Register o f Wills
Cumberland Count>
1 Courthouse Squat
Carlisle, PA 17013
Dear Mrs. Lewis:
We reviewed thc tra
Probate Photocopy ~
We arc of thc opini<
to overcome the pre
by Ectmund G. Mye
and Testmnent of th
decedent.
Evidence was pres¢
decedent placed the
Hospital in Deceml:
there until her admi
residence. From th,
win.
The Will remained
removed the Will a
Bank is no longer e
PNC Bank ever tell
employees at PNC
There is no testimo
on the contrap/mfe
~+LINDSAY FAX NO. : 2456510 Apr.
LAW OFFICES
kIDIS, SHUFF, FLOW-ER & LINDSAY
A PROFESSIONAL CORPORATION
26 wESt HIGH STREET
CARLISLE, PENNSYLVANIA 17013
TELEFHONE: (717) 243-6~222 - FACSIMILE; (717) 243-6486
'fi. MAIL: attorney@ssfl-law .coin
12 20E12 0,4:50PM P2
I~fiST SHORE OFFICE:
2109 MARKET STREET
CAMP HILL, PA 17{)11
TELEPHONE: (7'17)737-3405
FACSIMILE: (717)737-3407
REPLY TO CARLISLE
Courthouse
April 12, 2002
Re: Estate of Dorothy E. Boher, Deceased
~script of the heating held on March 5, 2002, on the Petition To
'the Last Will and Testament of Dorothy E. Boher.
that the Petitioner, Dennis P. Goss, has produced sufficient evidence
.umption that the Will in question, dated Augustl, 1995, and witnessed
s, Esq. and JetTy R- Duffle, Esq., which was offered as the Last Will
decedent, could not be located because it has been revoked by the
ted at the hearing that upon executing the Will on August 1, 1995,
/gill in her small safe in her dining room. She was admitted to Carlisle
,"r t997, discharged directly m the Woods at Cedar Run, and remained
sion to Manor Care. After December 1997, she never returned to her
time she was hospitalized until her death, she had no access to the
a thc decedent's small safe until a representative oFPNC Bank
d other important papers in December 1997. The employee of PNC
aployed by the bank. There is no record that any representative of
~quished possession of the ori~nal Will. After a diligent search,
lank were unable to locate the original WiI1.
ty suggesting that she took any action to revoke the original Will, but
red on a number of occasions to that Wii1 as her present, valid Will.
FROM.
SAIDIS,SHUFF,FLOWE
Mrs. Mary C. Lewis
Page 2
April 12, 2002
The above testimon'
in interest, includita
Said notice was in ~
intestate heirs came
We believe that the
revocation and dem
Will.
ha accordance with'
Boher's Last Will :~
Petition to Probate:
We have enclosed a
Dennis P. Goss will
Letters" on which h
Please advise if you
YDF/pm
R+LINDSAY FAX NO. : 24~6510 Ap~. 12 2002 04:50PM P5
~ is not contradicted. Petitioner gave notice of the hearing to ali parties
; all heirs named in the Will and all potential intestate heirs of decedent.
:cordance with the requirements of the law. No heirs nor prospective
forward to oppose the probate of the photocopy of the Will.
:vidcnce positively, clearly and satisi~actorily rebuts the resumption of
)nstrates the due execution and contents of decedent s Auaust l, i995
he above, we axe of the opinion that the photocopy of Dorothy E.
xd Testament dated August 1, 1995, and attached as Exhibit "A" to the
Conformed Copy of Decedent's Will, should be admitted to probate.
a order admitting the aforemention,e,d Will to probate. Petitioner
need to execute the s.tindard form Petition for Probate and Grant of
,~ can give the necessary oath.
have any questions concerning this matter.
Very truly yours,
SAIDIS, SHUFF, FLOWER & LINDSAY
James D. Flower, Jr.
[]~0~ ~: 8AIDIS, SHUFF~ FLOW~
IN RE:
['ATE O
Late of Soul
Cumbertam
Deceased
AN[
Kegister of ~
~id Testmne
Petition on
Last Will a~
of Decedent
SAIDIS
51IFF, FLOWER
& LINDSAY
i~AT~W
~6 w. Hi~ Sn-u~t
Carlisle, PA
+L I NDSAY
FAX NO.
: 2436510
Apr. 12 213132 04:S1PM P4
DOROTHY E. BOHER
h Middleton Township
County, Pennsylvania,
BEFORE THE REGISTER OF WILLS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
No, 21-01-I037
ORDER OF REGISTER
NOW, this . day of April 2002, upon consideration of the Petition to the
/ills of Cumberland County to Admit to Probate a Conformed Copy of the Last Will
at of Dorothy E. Boher, and heating having been held in connection with said
{arch 5, 2002, it is hereby ordered and decreed that the photocopy of Decedent's
i Testament dated August 1, [995, be admitted to probate in lieu of the ori~nal Will
Reg-ister of Wills
By: Mary C. Lewis
DENNIS GOSS, Individually
and as Personal Representative
for the ESTATE OF DOROTHY
E. BOHER, Deceased,
Plaintiff
VS.
PNC BANK, National Association,:
Financial Services Group,
PNC Advisors, and Charmaine
Bell,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION
NO. 02-6191
JURY TRIAL DEMANDED
STIPULATION TO TRANSFER ACTION
WHEREAS, the above action was filed in Common Pleas Court; and
WHEREAS, under 20 Pa.C.S.A. {}711 (1)(2) the Orphans' Court Division
has jurisdiction over the administration of the accounts of trusts and actions
taken by the Power of Attorney, pursuant to the Trust, together with distribution of
all property of the estate; and
WHEREAS, counsel for the parties agree that this matter relative to claims
against PNC Bank and its employee directly concern the administration of the
Deed of Trust, and
FURTHER, the Orphans' Court Division in the Court of Common Pleas of
Cumberland County has already heard a claim concerning a lost will, and a
subject of the action herein, which matter is captioned under Orphans' Court
number 2001-01037.
WHEREFORE, the parties therefore request that these matters be
transferred to the Orphans' Court for full hearing in accordance with the account
filed by PNC Bank, a National Association, Financial Services Group, as Trustee
in the deed J.~ trust of Dorothy E. Boher, deceased.
Respectfully submitted,
TUCKEI~,~RE ~NSBERG & SWARTZ
~lJriNs ~aaac ,n~SAt r~ ~tl01
(717) 234-4121
Attorney for Defedant
~& iOVNER, P.C.
(~4i~e~tEreSeq~jire
Harrisburg, PA 17110
(717) 238-6791
Attorney for Plaintiff
JOHNSON DUFFLE STEWART AND
WEIDNER
Edmund G. , Esquire
301 Market Street
Lemoyne, PA 17043-0109
56180
2
SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 2002-06191 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
GOSS DENNIS IND/REP ESTATE OF
VS
PNC BANK NATL ASSOC ET AL
R. Thomas Kline , Sheriff or Deputy Sheriff who being
duly sworn according to law, says, that he made a diligent search and
and inquiry for the within named DEFENDANT , to wit:
BELL CHARMAINE D
but was unable to locate Her
deputized the sheriff of YORK
in his bailiwick. He therefore
County, Pennsylvania, to
serve the within COMPLAINT & NOTICE
On January 24th , 2003 , this office was in receipt of the
attached return from YORK
Sheriff's Costs:
Docketing
Out of County
Surcharge
Dep York Co
6.00
9.00
10.00
52.85
.00
77.85
01/24/2003
ANGINO & ROVNER
Sheriff of Cumberland County
Sworn and subscribed to before me
this 2~' day of
A.D.
~ ~ P~othonota~y
SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 2002-06191 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
GOSS DENNIS IND/REP ESTATE OF
VS
PNC BANK NATL ASSOC ET AL
R. Thomas Kline , Sheriff or Deputy Sheriff who being
duly sworn according to law, says, that he made a diligent search and
and inquiry for the within named DEFENDANT , to wit:
PNC FINANCIAL SERVICES GROUP PNC ADVISOR
but was unable to locate Them in his bailiwick. He therefore
deputized the sheriff of ALLEGHENY County, Pennsylvania, to
serve the within COMPLAINT & NOTICE
On January 24th , 2003 , this office was in receipt of the
attached return from ALLEGHENY
Sheriff's Costs:
Docketing
Out of County
Surcharge
Dep Allegheny Co
Notary
6.00
9.00
10.00
50.00
3.00
78.00
01/24/2003
ANGINO & ROVNER
Sheriff of Cumberland County
Sworn and subscribed to before me
this ~ day of~r~
,J~ A.D.
Prothonotagy
SHERIFF'S RETURN - REGULAR
CASE NO: 2002-06191 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
GOSS DENNIS IND/REP ESTATE OF
VS
PNC BANK NATL ASSOC ET AL
VALERIE WEARY , Sheriff or Deputy Sheriff of
Cumberland County, Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE was served upon
PNC BANK NATIONAL ASSOCIATION the
DEFENDANT
at 1 EAST MAIN STREET
at 1445:00 HOURS, on the 9th day of January , 2003
MECHANICSBURG, PA 17055
ROB STOVER, SECURITY SERVICES
a true and attested copy of COMPLAINT & NOTICE
by handing to
ADULT IN CHARGE
together with
and at the same time directing His attention to the contents thereof.
Sheriff.s Costs:
Docketing 18.00
Service 6.90
Affidavit .00
Surcharge 10.00
.00
34.90
Sworn and Subscribed to before
me this ~ day of
~__/~ ~2~ A.D.
P%c/chonot ary '
So Answers:
R. Thomas Kline
01/24/2003
ANGINO & ROVNER
By: ~/~~
Deputy
The Court of Common Pleas of Cumberland County, Pennsylvama
Dermis Goss, ind and as rep for estate of Dorothy E. Boher, dee. eased
VS.
PNC ~5~_.nk NA et al
\~SERVE: PNC ~inancial Services Group .~ 02 6191 civil
PNC Advisors ,~ ~ ~% INO. __
Now, aanuarv 2, 2003 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do
hereby deputize the Sheriff of Alleqhen¥ County to execrate this Writ, this
deputation being made at the request and risk of the Plaintiff.
Sheriff of Cumberland County, PA
Affidavit of Service
,2(V3~, at/a? o clock F'~ M. served the
within
upon
at
by handing to z//~/)/~ / E ,c/A/E-----
and made known to
copy of the original
the contents thereof.
So answers,
' / Sheriffof~~~/ ~, ..~' .f'._~.._ounty, PA
Sworn and subscribed before . SERVICE $
me this 4hlla3~ ~f _a~___~5 ~.q37~~EAGE
'-~ N~ ~ [ AFFIDAVIT~
m~er, Pennsytv~nls,.~no~N°~ries '"f)'~) ~ (~
COUNTY OFYORK
OFFtGH OF THE . HERIFF
28 EAST MARKET ST., YORK, PA 17401
SERVICE CALL
(717) 7'71-960t
R~STFdJC¥~4S
SHERIFF SERVICE PLEASE TYPE ONLY LINE 1 THRU 12
PROCESS RECEIPT and AFFIDAVIT OF RETURN DO NOT DETACH ANY COPIES
COURT NU ER
1. PLAiNTIFF/S/ J~ ~'3_~.1 O1 I ,--4~t4 1
D~nnis Goss ind/rep estate of Dorothy E. Boher, deceased t~EvO~i~O--RVCO~MPLAINT
3. DEFENDANTISI ~ Notice and Complaint
PNC Bank National Association et al
SERVE ~' 5 NAME OF ~ND~WDUAL COMPANY. CORPO~T~ON. ETC. TO SERVE OR DESCRiPTiON OF PROPERTY TO BE LEWED. ATTACHED. OR SOLD
Charmaine D. Bell
6. ADDRESS (STREET OR RFO ~TH BOX NUMBER. APT NO.. C,TY. BORe, TWP. STATE AND Z~P CODE)
AT 201 McKinley Avenue Hanover, PA 17331
7 INDICATE SERVICE: ~ PERSONAL / r~ PERSON IN CHARGE ~DEPUTIZE ~ C~ER_TL~MAIL = ~ 1ST CLASS MAIL Q POSTED Q OTHER
NOW January 2 ,20 03 I, SHERIFF~ .... .~UNTY, pA, ~o hereby depubze the shenff of
York COUNTY to execute thi%J~ake return ~.according
tolaw, lhisdeputizationbeingrnadeattherequestandriskoftheplaintiff. -"~-"~SH~ <~
8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT ~LL ASSIST IN EXPEDITING SERVICE: ~berland
OUT OF COUNTY
CUMBERLAND
Please mail return of service to Cu-nberland County sheriff.
ADVANCED FEE PAID BY ATTY
NOTE: ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within writ may leave same
without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff
herein for any loss, destruction, or removal of any property before sheriffs sale thereof.
9. TYPE NAME and ADDRESS of ATTORNEY / ORIGINATOR and SIGNATURE I 10. TELEPHONE NUMBER I 11. DATE FILED
ANGINO & ROVNER 4503 N. FRONT ST. HARRISBURG~ PA 17110 [238-679~ [ 12-31-02
12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (This area must be completed if notice is to be mailed).
CUMBERLAND CO SHERIFF
SPACE _rtF_l OW FORU~ OF THE ~ - DO NOT W~l~ BELOW TtlS LBIE
13. I acknowledge receipt of the writ I 14. DATE RECEIVED 15. Expiration/Hearing DaL~
or complaint as indicated above. R. AHREN$ I 1_-3-03 1-30-03
PERSONAL (~/%_ RESIDENCE'.v~ POSTED ( ) POE ( ) SHERIFF'S OFFICE ( ) OTHER ( ) SEE REMARKS BELOV~
16.
HOW
SERVED:
17. O I here~'~ certify and return~NOT FOUND because I am unable to locate the individual, company, etc. named above. (See remarks below.)
18. NAME A~ID TITLE OF INDIVIDUAL ~j~RVEI~'~]ST ADDRESS HERE IF NOT SHOWN ABOVE (Relationship to Defendant) 19. Date~f S~vice 20. Time of Service
21~,~T'~fS] §~te'-,fime_ )~l,le~, Ir{t: rDa,e ~T'im,, Miles~lY~ I'~'~'% I~t~ ~lP'~'~ ~ I~'-I Int. I~ Date ITime IMiles II I I Int. ~ Date ITime IM,les[I I ' I Int. ~ Dare IT,meI) ] '1' I 'ateF'me IH"esl-- . ,nt.--
22. REMARKS:
23. Advance Costs I 24. Service Costs 25. N/F I 26. Mileage
75.00] 18.00 32.85
34. Foreign County Costs I 35. Advance Costs 36. Service Costs
J
41. AFFIRMED and subscribed to before me this 1 6
~n I A~KNn~-~FCEIPT~F TH~ERIFF'~URN SfG
27. Postage
37. Notary Cert.
38. Mileage/Fost&ge,'Not Found
31. Surchg. 32. Tot. Costs 33 Cosls Du~l~fund~
52.85 22.15
)ck
39. Total Costs I 40. Costs Due or Refund
I
SO ANSWERS
~. Signature of
~. S~gnat.re of~ork / ' //
County Sheriff
48. Signature of Foreign
County Sheriff
I 51 DATE RECEIVED
~ATURE
47. OA'~E ' -
1-i6-03
49. DATE
DENNIS GOSS, Individually
and as Personal Representative
for the ESTATE OF DOROTHY
E. BOHER, Deceased,
Plaintiff
VS,
PNC BANK, National Association,:
Financial Services Group,
PNC Advisors, and Charmaine
Bell,
Defendants '
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION
NO. 02-6191
JURY TRIAL DEMANDED
AND NOW, this
Transfer Action by counsel,
ORDER
day of-JacqueS, 2003, pursuant to the Stipulation to
IT IS HEREBY ORDERED, that the matter docketed to CiVil Action 02-6191, is
hereby transferred to the Orphans' Court docketed at 2001-01037.
56196
OZ -O
BY THE COURT:
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Audrey A. Sweeney
Plaintiff
Vs.
Brent D. Alford
Defendant
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
No. 28'14-02 civil
JURY TRIAL DEMANDED
PRAECIPE TO REISSUE WRIT OF SUMMONS
TO THE PROTHONOTARY:
Please reissue the Writ of Summons for the above maned matter.
Date: February 10, 2003
Respectfully submitted, ~:~:'
KNAUER & ASSOCIATES, L.S ~}~,
'
avid W. ~au.~, Esquire
A~omey for Pl~tiff
A~omey I.D. No. 21582
411-A East Main S~eet
Mech~icsb~g, PA 17055
(7 ~ 7) 79~-7790
DENNIS GOSS, Individually and as Personal
Representative for the ESTATE OF
DOROTHY E. BOHER, Deceased
Plaintiff
PNC Bank, National Association, PNC
Financial Services Group, Inc., PNC Advisors,
and Charmaine D. Bell,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
CIVIL ACTION
NO. 02-6191
JURY TRIAL DEMANDED
PLAINTIFF'S ANSWER TO DEFENDANTS' NEW MATTER
55. Denied. The averments set forth in paragraph 55 are conclusions of law to which no
response is deemed necessary, and strict proof thereof is demanded at Trial. Plaintiff's
Complaint which is incorporated herein by reference, adequately sets forth causes of action upon
which relief can be granted.
56. Denied. As set forth in the Complaint, it is specifically averred that only named
Defendants', Charmaine D. Bell and PNC Bank, had possession, control and custody of the
original will and their actions are solely the cause of the loss of the original will and subsequent
Denied. As set forth in the Complaint, it is specifically averred that Defendant,
Charmaine D. Bell took possession of the will. It is specifically averred and admitted by the
Defendants, that Defendant, Charmaine D. Bell was an .employee, agent and servant of
Defendant, PNC Bank, at all relevant times hereto, acting within the course and scope of her
employment. It is specifically averred that all losses to the Estate of Dorothy Boher and its
executor, Dennis Goss were caused solely by Defendants.
259122.1\LMB~JSS
58. Denied. The averments set forth in paragraph 58 are conchtsions of law to which no
response is deemed necessary, and strict proof thereof is demanded at 'Trial.
59. Denied. The averments set forth in paragraph 59 are conclusions of law to which no
response is deemed necessary, and strict proof thereof is demanded at Trial.
WHEREFORE, Plaintiff requests that New Matter is dismissed and .judgment be entered in his
favor.
Respectfully submitted,
Date:
ANG ,~N~ 0 &
I.D. No. 89(
~ ~OVNER, P.C.
4503 N. Front Street
Harrisburg., PA 17110
(717) 238-15791
Counsel for Plaintiffs
259122.1\LMBUSS
ATTORNEY AFFIDAVIT
I, Lisa M. Benzie, Esquire, state that I am counsel for Plaintiff, that I am authorized to make
this Verification on behalf of said Plaintiff, and have read the foregoh~g document and do hereby
declare and affirm that the facts set forth in the foregoing are correctly derived from the discovery
record. I understand that this Verification is made subject to the penalties of 28 U.S.C. §1746,
relating to unswom falsification to authorities.
Swom to and subscribed to
before me on this itSttq day of
fipn'l :ZOO
Megan"Reinard
Notary Public
259122.1 \LMBXJSS
CERTIFICATE OF SERVICE;
I, Janice S. Smith, an employee 'of the law firm ofAngino & Row~er, P.C., do hereby certify
that I am this /~ day of/~L~_ .. , 2003 serving a true and correct copy of
PLAINTIFFS' ANSWER TO NEW MATTER upon all counsel of record via postage prepaid
first class United States mail addressed as follows:
James G. Morgan Jr., Esquire
TUCKER ARENSBERG & SWARTZ
111 North Front Street
P.O. Box 889
Harrisburg, PA 17108-0889
Edmund G. Myers, Esquire
JOHNSON, DUFFIE, STEWART & WEIDNER
301 Market Street
Lemoyne, PA 17043
J~m~th
259122.1 hLMBXJSS