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Home My WebLink About97-06091 . 1 ,.. J , .I .. ,-' \J ..... 1: ~~ ~ ., ~ " 'l ~ .. 3' ~ f) , \fIt;:\ -:r\2:) cr' !! C!j POST & SCHEU., P.C, BY: STEVEN D. COSTELLO 1.0. # 37288 1857 WILLIAM PENN WAY P.O. BOX 10248 LANCASTER, PA 17605-0248 (717) 291-4532 MICHAEL J. FREY, and DARLIEN FREY, Coexecutors of the Estate of John W. Frey, Plaintiffs, ATTORNEYS FOR DEFENDANT ETZWEIlER & ASSOCIATES, flk/a ETZWEIlER & RADEBACH, and ROBERT G. RADEBACH vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW ETZWEIlER & RADEBACH and ROBERT G. RADEBACH, No. 97-6091 Defendants. JURY TRIAL DEMANDED RULE TO SHOW CAUSE AND NOW, this _ day of ,2001, a Rule is hereby issued to show cause why the Defendants' relief requested in their Motion for Judgment on the Pleadings should not be granted. Rule returnable twenty (20) days from the date of this Order. BY THE COURT: Edgar B. Bayley, J. II I, il ! POST & SCHELL, P.C. BY: STEVEN D. COSTELLO J.D. 1137288 1857 WILLIAM PENN WAY P,O. BOX 10248 LANe ASTER. P A 17605-0248 (717) 291-4532 MICHAEL J. FREY, and DARLlEN FREY, Coexecutors of the Estate of John W. Frey, Plainti ffs, ATTORNEYS FOR DEFENDANT ETZWEILER & ASSOCIATES, fIkIa ETZWEILER & RADEBACH, and ROBERT G. RADEBACH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA vs. CIVIL ACTION - LAW ETZWEILER & RADEBACH and ROBERT G. RADEBACH, No. 97-6091 Defendants. JURY TRIAL DEMANDED MOTION FOR JUDGMENT ON THE PLEADINGS OF DEFENDANTS, ETZWEILER & ASSOCIATES, f/k/o F.TZWF.II.F.R & RAnF.RACH ANn RORF.RT G. RADF.RACH Defendants, Etzweiler & Associates, flk/a Etzweiler & Radcbach, ("Moving Defendants") through their counsel, Post & Schell, P.c., hereby requests that this Honorable Court enter an Order granting their Motion for Judgment on the Pleadings in their favor and against Plaintiffs, Michael J. Frey and Darlien Frey, fonner coexecutors of the Estate of John W. Frey for their claims arising out of the probate and administration of the Estate of John W. Frey (hereinafter "Estate") for the following reasons: I. The instant legal malpractice action alleges that Defendants failed to properly manage and/or administer the Estate which resulted in damages to the Estate. On or about November 5, 1997, Plaintiffs, the fonner coexecutors of the Estate of John W. Frey, initiated this malpractice action by filing a Writ of Summons with the Court of Common Plells of Cumberland County. 2. Plaintiffs, as fonner coexecutors of the Estate, subsequently filed a Complaint in the Court of Common Pleas of Cumberland County on October 30, 2000. A series of Preliminary Objections and Amended Complaints were filed, with the final Second Amended Complaint being filcd on February 6, 200 I. In the Second Amended Complaint, Plaintiffs allege that they were duly appointed coexecutors of the Estate of John W. Frey, date of death, November 25, 1991, on or about December 4, 1991. (See, Second Amended Complaint. attached to the accompanying Brief as Exhibit "A," ~6,) 3. Plaintiffs allege that they retained Robert G. Radebach, Esquire to represent them in the probate and administration of the Estate. (See, Exhibit "A," ~7.) 4. The Plaintiffs' claims arise out of the transfer of two rental properties of the Estate by the fonner coexecutors to one of the fonner coexecutors, Michael J. Frey, and another beneficiary, Richard Frey, on June 18, 1993 for the sum of$44,500.00. (See, Exhibit "A,"'1 I.) 5. Defendants filed a Praecipe for Writ to Join Additional Defendant Richard H. Frey on February 22, 2001. Additional Defendant Richard Frey was served on March 1, 200\. 6. Defendants filed an Answer to Plaintiffs' Second Amended Complaint on April 27, 2001. 7. The pleadings between Plaintiffs and Defendants were closed as of ApriI200\. -2- 8. The Plaintiffs served as eoexecutors of the Estatefrom December 4, 1991 until May 2, 1996. (See, Opinion and Order of Court date!! May 2, 1996, attached to the accompanying Brief as Exhibit "B.") 9. The Plaintiffs' Seeond Amended Complaint contains one count of Negligence and one count of Breach of Contract against each of the named Defendants. (See, Exhibit "A.") 10. Plainti rfs allege that they were not advised by Defendants to open an Estate bank account, and further aver that they transferred certain real property of the Estate without court approval. (See, Exhibit "A,"~10-12.) II. In their claims for negligence against the above-Defendants, Plaintiffs claim that the alleged failure to exercise reasonable care in advising Plaintiffs on the administration and probate of the Estate resulted in damages to the Estate, including the surcharge of$30,500.00,legal fees to defend the fonner coexecutors, additional legal fees to the Estate of John W. Frey in the amount of $14,922.00 and additional administration fees incurred by the Estate of John W. Frey in the amount of$4,OOO,98 and the loss of Darlien Frey's executor's fee in the amount of$2,610.60. (See, Exhibit "An). 12. In the claims for breach of contract against the above Defendants, Plaintiffs allege a breach of contract against Defendants as a result of the alleged failure to render legal advice concerning the proper probate and administration of the Estate of John W. Frey. (See, Exhibit "A.") -3- 13. Plaintiffs filed a Writ of Summons against Defendants on NovemberS, 1997. (See, Docket Entries attached to the accompanying Briefas Exhibit "C.") 14. Both Defendants were served with the Writ of Summons in November of 1997. (See, Exhibit "C.") IS. At the time Plaintiffs commenced the instant malpractice litigation in November of 1997, no one was serving as the representative of the Estate of John W. Frey. (See, Exhibit"B" and Exhibit "C.") 16. Prior to the tiling of the original Complaint on October 30,2000, Ruth Frey-Lupfer was subsequently appointed the personal representative of the Estate on February 4, 1999. (See, Opinion and Order of President Judge Hoffer dated November I, 2000, attached to the accompanying Brief as Exhibit "0"). 17. On June 26, 1997, Plaintiffs were represented by William C. Vohs, Esquire, with respect to the Plaintiffs' claims of professional malpractice. (See, correspondence dated June 26, 1997, attached to the accompanying Briefas Exhibit "E"). 18. An action or proceeding to enforce any right or liability which survives a decedent may be brought by or against his personal representative alone or with other parties as though the decedent were alive. Act of June 30,1972, P.L. 508, No. 164, ~2, 20 Pa.C.S. ~3373. -4- i' ,! 19. In order to maintain an action, the party P1aintiffmust have an actual legal existence. 28 P.L.E. parties ~2 (1960); Security National Rank v ('allin F.slale, 35 Pa. D.&C. 4th 198 (C.C.P. Montgomery October 16, 1997). 20. Plaintiffs' claims in the instant litigation are claims for damages allegedly sustained by the Estate as a result of the alleged failure to properly administrate and probate the Estate. 21. "The law is clear that all actions that survive the decedent must be brought by or against a personal representative, duly appointed by the Register of Wills. Finn v nll~an, 394 A.2d 595,596 (Pa.Super. 1978); citing Lovqjoy v C,corgcff, 224 Pa.Super. 206, 303 A.2d 501 (1973). 22. However, Plaintiffs commenced the action as Michael J. Frey and Darlien Frey, without including the personal representative of the Estate, or the Estate itself, as a party Plaintiff, when they filed a Writ of Summons on November 5,1997. 23. Plaintiffs' failed to name the personal representative of the Estate, or the Estate itself, when they subsequently filed the Complaint, Amended Complaint and Second Amended Complaint. 24. Thus, Plaintiffs' claims are barred where the Plaintiffs failed to name the personal representative of the Estate or the Estate itself as a party to the Plaintiffs' action for the alleged mismanagement of the Estate. 25. For the reasons set forth above and as set forth more extensively in the Brief in Support of this Motion, Defendants Etzweiler & Associates, flk/a Etzweiler & Radebach, and Robert -5- G. Radebaeh are entitled to Judgment on the pleadings in their favor and against Plaintiffs as a ~ matter of law. WHEREFORE Defendants Etzweiler & Associates, flkla Etzweiler & Radebach, and Robert G. Radebach, respectfully request that this Honorable court enter an Order granting the within Motion for Judgment on the Pleadings in their favor and against Plaintiffs. Date: II II II -6- Cumberland County Prothonotary's Office Civil Case Inquiry 1997-06091 FREY MICHAEL J ET AL (vs) ETZWEILER & RADEBACH ET AL PYSS10 Page 1 Reference No..: Case Type.....: WRIT OF SUMMONS Judgment. . . . . . .00 Judge Assigned: Disposed Desc. : ____________ Case Comments ------------- Filed........ : Time.. .......: Execution Date Jury Trial. . . . Disposed Date. H~gher Crt 1.: H~gher Crt 2.: 11/05/1997 9:23 0/00/0000 0/00/0000 ..--***-.....--.....-.-.-..-.-.--.....---.--.-.-.-....-.**---.-.-........---.-.- General Index Attorney Info FREY MICHAEL J PLAINTIFF VERNEY JAC~UELINE M FREY DARLIEN PLAINTIFF VERNEY JAC UELINE M ETZWEILER & RADEBACH DEFENDANT COSTELLO SEVEN D 105 NORTH FRONT STREET HARRISBURG PA 17101 RADEBACH ROBERT G DEFENDANT COSTELLO STEVEN D 107 LOUCST STREET HARRISBURG PA 17101 .***..***.***...***....**.*......***.....*****.*...........*.....**...***....... * Date Entries * ......*..*..*............****.*...*......**.Q.*.......**.*.*..******.***..****.* 11/05/1997 12/03/1997 12/03/1997 10/30/2000 11/08/2000 11/09/2000 11/13/2000 11/13/2000 12/01/2000 12/20/2000 12/20/2000 2/06/2001 2/13/2001 2/21/2001 _ _ _ _ _ _ _ _ _ - - - - FIRST ENTRY - - - - - - - - - - - - - - PRAECIPE FOR WRIT OF SUMMONS IN CIVIL ACTION-WRIT OF SUMMONS ISSUED ------------------------------------------------------------------- SHERIFF'S RETURN FILED Litigant.: ET4WE~LER & RADEBACH SERVED : 11/19/97 DAUPHIN CO WRIT OF SUMM Costs....: $60.50 pd By: JACQUELINE VERNEY 12/03/1997 ------------------------------------------------------------------- SHERIFF'S RETURN FILED Litigant.: RAQEB~CH ROBERT G SERVED : 11/10/97 DAUPHIN CO WRIT OF SUMM Costs. ...: $8.00 pd By: JACQUELINE VERNEY 12/03/1997 ------------------------------------------------------------------- COMPLAINT COUNT 1 NEGLIGENCE PLFFS V ROBERT G RADENBACH COUNT 2 BREACH OF CONTRACT PLFFS V ROBERT G RADEBACH COUNT 3 NEGLIGENCE PLFFS V ETZWEILER & RADEBACH COUNT 4 BREACH OF CONTRACT PLFFS V ETZWEILER & RADEBACH BY JACQUELINE M BERNEY ESQ ATTY FOR PLFF ------------------------------------------------------------------- ENTRY OF APPEARANCE FOR DEFTS BY STEVEN D COSTELLO ESQ ------------------------------------------------------------------- ORDER OF COURT DATED 11-8-00 IN RE 2000 PURGE - RBGARDING RECENT ACTIVITY ON THE CASE - THE CASE SHALL BE REMOVED FROM THE OCTOBER 31 2000 PURGE LIST - J WESLEY OLER JR J - NOTICES MAILED ------------------------------------------------------------------- PRELIMINARY OBJECTIONS OF DEFENDANTS ETZWEILER & ASSOCIATES F/K/A ETZWEILER & RADEBACH AND ROBERT G RADEBACH TO PLAITIFFS COMPLAINT - BY STEVEN D COSTELLO ESQ ------------------------------------------------------------------- PRAECIPE FOR LISTING CASE FOR ARGUMENT - BY SANDRA L FOSTER ATTY FOR DEFT ------------------------------------------------------------------- AMENDED COMPLAINT - BY JACQUELINE M VERNEY ESQ ATTY FOR PLFF ------------------------------------------------------------------- PRAECIPE FOR LISTING CASE FOR ARGUMENT - DEFENDANTS PRELIMINARY OBJECTIONS TO PLAINTIFFS AMENDED COMPLAINT - BY SANDRA L FOSTER ATTY FOR DEFT ------------------------------------------------------------------- PRELIMINARY OBJECTIONS OF DEFENDANTS ETZWEILER & RADEBACH AND ROBERT G RADEBACH TO PLAINTIFF'S AMENDED COMPLAINT - BY STEVEN D COSTELLO ---------------------------------------------------------.---------- SECOND AMENDED COMPLAINT - BY JACQUELINE M VERNEY ESQ FOR PLFFS ------------------------------------------------------------------- PRAECIPE TO WITHDRAW PRELIMINARY OBJECTIONS TO PLFFS AMENDED COMPLAINT - STEVEN D COSTELLO ------------------------------------------------------------------- PRAECIPE FOR LISTING CASE FOR ARGill4ENT - BY DEFENDANT'S PRELIMINARY Cumberland County Prothonotary's Office Civil Case Inqulry 1997-06091 FREY MICHAEL J ET AL (vs) E1'ZWEILER & RADEBACIl E1' AL PYS510 Page 2 11/05/1997 9:23 0/00/0000 0/00/0000 Reference No..: Case Type.....: WRIT OF SUMMONS Judgment...... .00 Judge Assigned: Disposed Desc. : ------------ Case Comments ------------- Fi led. . . . . . . . : Time.. . ......: Execution Date Jury Trial. .. . Disposed Date. Higher Crt 1.: Higher Crt 2.: COMPLAINT - BY SANDRA 2/21/2001 2/22/2001 3/02/2001 3/28/2001 4/27/2001 5/03/2001 9/05/2001 9/05/2001 OBJECTIONS TO PLAINTIFFS SECOND AMENDED L FOSTER FOR DEFT ------------.------------------------------------------------------ PRELIMINARY OBJECTIONS OF DEFENDANTS ETZWEILER & RADEBACH AND ROBERT G RADEBACH TO PLAINTIFFS SECOND AMENDED COMPLAINT - BY STEVEN D COSELLO ESQ ------------------------------------------------------------------- PRAECIPE FOR WRIT TO JOIN ADDITIONAL DEFT - SREVEN D COSTELLO ----------------------..-------------------------------------------- SHERIFF'S RETURN FILED Litigant.: F~EY RICHARD SERVED ; 3 01/01 WEST FAIRVIEW PA WIRT OF SUMM TO JOIN ADDL DEFT Costs....: $ 7.~0 Pc! By: POST & SCHELL 03/02/2001 ------------------------------------------------------.------------ ORDER OF COURT - DATED 3/28/01 - THE PRELIMINARY OBJECTION OF DEFTS TO PLAINTIFFS SEcoND AMENDED COMPLAINT IS GRANTED THE CLAIM OF PLFFS IN THEIR SECOND AMENDED COMPLAINT FOR PUNITIVE DAMAGES IS DISMISSED - BY THE COURT EDGAR B BAYLEY J COPIES MAILED 3/28/01 ------------------------..------------------------------------------ ANSWER OF DEFENDANTS ETZWEILER & ASSOCIATES FORMERLY KNOWN AS ETZWEILER & RADEBACH ANF ROBERT G RADEBACH TO PLAINTIFFS SECOND AMENDED COMPLAINT - STEVEN D COSTELLO ESQ ------------------------------------------------------------------- PRAECIPE TO SUBSTITUTE VERIFICATIONS BY STEVEN 0 COSTELLO ATTY FOR DEFTS ------------------------------------------------------------------- PRAECIPE FOR LISTING CASE FOR ARGUMENT - MOTION FOR JUDGMENT ON THE PLEADINGS OF DEFENDANTS - BY STEVEN D COSTELLO ESQ FOR DEFT ------------------------------------------------------------------- MOTION FOR JUDGMENT ON THE PLEADINGS OF DEFTS ETZWIELER & ASSOCIATES F/K/A ETZWEILER & RADEBACH AND ROBERT G RADEBACH - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - **************************.*******.*********.**.************************.****.** . Escrow Information · . Fees & Debits Beq Bal Pvmts/Adi End Bal · *..****..**.***************...*..***.***.~.*.**.~***....*.***..********....****. WRIT OF SUMMONS TAX ON WRIT SETTLEMENT JCP FEE 35.00 35.00 .50 . SO 5.00 5.00 5.00 5.00 ------------------------ 45.50 45.50 .00 .00 .00 .00 ------------ .00 ...***..****.**..............*........*****....*......*.***********.*.*.*****... . End of Case Information · ~**.**.**..****.*****.*..******.*..**.*....*...*.*..******.*****..*.*********... MICHAEL J. FREY, and OARLIEN FREY, Co-executors of the Estate of John W. Frey, Plaintiffs IN TIlE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LA W v. NO. q 7 t,ot;! c"wJ v:t~ ETZWE1LER & RAOEBACH and ROBERT G. RAOEBACH, Defendants JURY TRIAL DEMANDED PRAECIPE TO ISSUE WRIT OF SUMMONS TO: PROTHONOTARY OF CUMBERLAND COUNTY Please issue a Writ of Summons in the above-captioned matter. - tJ" . tf .. acqu ine M. Verney, EsqU~ Supreme Ct. /D. 23167 44 South Hanover Street Carlisle, PA 17013 (717) 243-9190 Attorney for Plaintiffs <; ~E,I r:~ "',( A- bf..&/lJ-, c..- /o :,- N. 1:-~,,",jUT S I 1+.1,.<..:!..Is.~u~c.., IA- /7.0 I i?,a1~r (,. I!/lDEI3!It:(.,,{.sc:.' 10 1 t <:-(! "" r 5,. II J .-;Ill /7'0/ n4,c.,'C.,C:; Cl~.<.G,.t r. .0;' ,.., . ! ... ~ ,~ 1...1\ "1\ '<.J ~~ ,., -', . .J ~~ ~ ~ ~ \\ , .., Conunonwealth of Pennsylvania County of Cumberland Michael J. Frey, and Darlien Frey. Co-executors of the Estate of John W. Frey Court of Conunoll Plea.s 11& No. _m_9..'I:9!l_'!L~J.'!:!J._XWJL___m_ 19.m Etzweiler & Radebach 105 N. Front St. Harrisburg, PA 17101 and Robert G. Radebach 107 Locust St. Harrisburg, PA 17101 III ___ m ~J. 'lU_ M~J..2"L=_M'1_____ ________m_ To uu.Etzweiler._&_Radebacb_t1IllLRobert..G. Radebach You are hereby notified that . _ _ _ __ _ _ _~~.h<!~t _~ ~_!'!.~l_ Aflc! _ P.!'!E U!!_fl_ !'!.~.,_ _C;:2:'"_~~~9!t!?.rjLQf. .!;)}!Lf,!!. t{l!=!!__QLi'_QlJ!.1. ~t _ Frey the PlaintiHs have commenced an action in n__C!.llil_Alltion.,,_Law_______uuuuu______u__u_ against you which you are required to defend or a default judgment may be entered against you. (SEAL) Lawrence E. Welker .------------------p~th~~~t;~------------------ Date ____r:!rol~_:iJ_____________ t9_.ll.1 By _ti~na..-K.~t~-- q.,....-Z---m- (J Deputy t/ .. I 1R. f I >~~~f~ fW 6'~~~. , , j3~~ ~ < , Il: ~ ~~ [~ , I I I I "'.....!j. ..... lfl' ~Ill ~. r , '" 'f" f~ fl~ ~~~~ , ,,.,. , I.... >' ~ '" 'tl ' 18 .....;l' 3: I~- ~"$ s '" ..... j 'tic..... 0< I' t; c51!l "'13 ~. ..... <..l !~ :T~ fi 8. <..lUl..... S' i rT rt '" ro ~. ....J~ , , '" " , f2 !ri' f2 I 8. ,.,. I III r .0 ,.,. , , III I I 0 '" . SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 1997-06091 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND FREY MICHAEL J ET AL VS. ETZWEILER & RADEBACH ET AL R. Thomas K1inv . Sheriff, who being duly sworn according to law, says. that he mad. a diligwnt svarch and inquiry for thv within named defvndant, to wit: ETZWEILER & RADEBACH but was unab1v to locatv Them in his bailiwick. Hv thvrvforv dvputizvd the sheriff of DAUPHIN COUNTY to serve the within WRIT OF SUMMONS County, Pennsylvania. On December 3rd, 1997 this office was in receipt of Pennsy 1 vania. the attached return from DAUPHIN COUNTY County, Sheriff's Costs: Docketing Out of County Surcharge DAUPHIN COUNTY So answel's: // ~her1!! 18.00 9,00 2.00 31. 50 6c0,~0 JACQUELINE VERNEY 12103/1997 1'- -::;.....,-.. : ,c'r. HI. I homas Kline, I l Sworn and subscribed to before me this 3.-4 day of ~'... fr..~ 19 q1 A.D. I' ('I Q~' ~ 'fA-- .:. ~II.-J . ~ prot ono~ary' r- ~ , SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 1997-05091 P COMMONWEALTH OF PENNSYLVANIA: COUMTY OF CUMBERLAND FREY MICHAEL J ET AL VS. ETZWEILER & RADEBACH ET AL R. Thomas Kline , Sheriff, who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named defendant, to wit: RADEBACH ROBERT G but was unable to locate Them in his bailiwick, He therefore deputized the sheriff of DAUPHIN COUNTY County, Pennsylvania. to serve the within WRIT OF SUMMONS On December 3rd. 1997 this office was in receipt of the attached return from DAUPHIN COUNTY County, Pennsylvania. Sheriff's Costs I Docketing Out of County Surcharge 5.00 .00 2.00 So answerS: /' .. ..~,.' . / /-':~</ ~~~/ (,-;;:_ ;. ~~ ,t'_. ~. Ri rho mas Kline, 5 eriff $8.~0 JACQUELINE VERNEY 12/03/1997 Sworn and subscribed to before me this jotd day of AJ.../..L'" t.. - 19 q7 A.D. ~~ Pr . --. ~ ,,~ .1t.A.... . - ( I rot~no~ary' ~ Office of the Sheriff Mary Jane Snyder Heltl f6Ittl(, I)"puly Ralph G. McAIIIsl9r l~nlC,1 (klpuly Michael W, Rinehart A6!iiatunl ChiellJl7pull William T Tully ~;,Jh(.l! ,Jr (lflUphl" County .'llfrll,tHlI\j,tl, flI11.,hillnlol l'l!)l (Ill) ?!l~l 2ull0 J. R. Lotwick Sher iff COMMONWEALTH OP PENNSYLVANIA COUNTY OF DAUPHIN SHERIFF'S RETURN No. 2542-T - - -97 OTHER COUNTY NO. 97-6091 AND NOW, November 19, 1997 at 1l100AM served the within I-lRIT OF SUMMONS upon ETZWEILER & RAOEBACH by personally handing to OEtlISE BARLEY - LEAGL SECRETARY 1 true attested copy ( ies) of the or igina1 WRIT OF SUMMONS and making known to him/her the contents thereof at 105 N, FRONT ST, HARRISBURG, PA 00000-0000 SWorn and subscribed tu ~efore.me this 19TH dar'oJ NOVEMBER, 1997 . " I .(t .""\ .JT2/.."):i}/rI) c- ! f (WI'''')') I PROTHONO'"ARY County, Pa. Sheriff's COStSI $31. 5 PO 11/10/97 RCPT NO l03797 GM/DB Office of the Sheriff Mary Jam' Snyder Honll '"Inlo [hlpIJ!" Ralph G. McAllister CrlitS'l..)(Jput'f Michael W. Rinehart AGrolSluot ebef Oeputi Wilham T. Tully ~,l)JI(;lr ,Jf llllllPI'W\ COllnl)' I lUll <. (lUt,]. Pl.'r\r,l.o,hd.tr,1;) 1/101 (If 1) ?:-I!.! ~tit}o J, R. Lotwlck Sh-=riff COMMONWEALTH OF PENNSYLVANIA COUNTY OF DAUPHIN SHERIFF'S RETURN No. 2542-T - - -97 OTHER COUNTY NO, 97-609l AND NOW I November lO, 1997 at 5145PM served the within WRIT OF SUMMONS upon RADEBACH ROBERT G. by personally handing to P.ADEBACH ROBERT G, 1 true attested copy ( les) of the original WRIT OF SUMMONS and making known to him/her the contents thereof at l07 LOCUST ST. HARRISBURG, PA 00000-0000 Sworn and subscribed to .~efure me this 19TH dfY~f NOVEMBER, U~Lrr.t"./l'! l.~ I fJn' "'\ " '. .. . . 4J41fl) I PROTHONOTARY 1997 9f~ ~eriff of Dauphin County, Pa. BY/~~GT~11-~ / Sheriff's Costs I 531.50 PO ll/10/97 RCPT NO 103797 TK/HL Michael J. Frey & Dariien Frey. Co-Executors of the Estate of John W. Frey \5. Etzweiler & Radebach :-;0. 97-6091 Civil Term 19_ !'Oow, Nov. 6. 199719_. I SHERlFF OF CD1BERL\:'I"D COL"TY, PA do b..eb) dtpur.z. tb. Sb.~iffor Dauphin COUOI).IO ueeuI. Ibis Wrll,lbls deputalloo bein~ mad. 01 Ibe requUlood r15k orlb. Plalnllff. r~"'<~ Sh.riff or Cumb.r1aod Couol). Po. . Affidavit of Sen'ice ~ow, within upoa at by b~ndiDi to :Htes:ed c~p~' of the orii!a:lI Ih. "alentS lillreor. t9 .ot o.tlock :>l.se:"o ed Ibe o lr.e oad ond mod. koown 10 So 3nS\\ers. ,.... Sberlff or Counl), Po. COSTS 5-.\or:1 3nu 5ub~tribtd bernre me thij dJ) or 19_ SERVICE MlLE.-I.GE AHlD-I.nT s ! Michael J. Frey & Darlien Frey, Co-Executors of the Estate of John W. Frey \'S. Robert G. Radebach !'io. 97-6091 Civil Term 19_ ~'1J"" Nov I 6. Dauphin 1997 19_.1 SHERlFF Of CnIBERLA:"iD COl');T...., PA do bereb~ de?u~.le tb. S~'riifor Couo~ 10 "ecult Ihis Wrh.lhb deputation bein~ mode ollbe requell ond ri,k orlo. Ploinliff. r~~:""~~~ SberiffofCumberlood Couo~. Po. . Affidavit of Seryice 1'ow, within 19 , or o'clock ~t. woo, e~ rbe upoo ot by bJndiQj to :utesrtd c:)p~' o(the or:i!cJI Ihe COOle,!! IOereor. o true ood :1nd m:ci kJown to So :2n5\\'erS, Sheriff or Couo~, Po. COSTS S.\t)r:1 :Jnd 5u:'Hc~;hted b~rf)rt me t:,i~ d:J~ of 19_ SERVICE MILEAGE AHID\VlT 5 s . (} G ""f.!f"'.j tD'.:: 7': I'. /' " (fl_" ..,.E~ C-.." ~".; C"; E~( .1 >C. :z :< c' C ,;:J ., .:.... t.) ~:::. . ., ?:>o~ .... ~] , , ",.r\ to> ~ MICHAEL J. FREY,lIOlI DARLlEN FREY, Co-uetutors or the Estllte or John W. Frey, PllIlntirfs : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY,PENNSYL VANIA CIVIL ACTION - LAW NO. 97-6091 CIVIL TEnM v. ETZWEILER & RADEDACH llnd: JURY TRIAL DEMANDED ROBERT G. RADEBACH, Defendants NOTICE YOU HAVE BEEN SUED IN COURT. (fyou wish to defend against the claims set forth in the following pages. you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and tiling in writing with the court your defenses or objections tot he claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requesh:d by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Libeny Avenue Carlisle. PA 17013 (717) 2"9.3166 I a / "3 " -(./"'>I .. ~,~ acq ne M. Vemey, Esquire N2316~ .... South Uanover Slreet Carlisle. PA 17013 (717) 2"3.9190 MICHAEL J. FRF.Y, IlRd DARLlEN f'Rf:Y, Co-executor! of the [shlle of John W. Frey, Phalntlffs IN Tm: COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYL VANIA : CIVIL ACTION - LAW NO. 97-6091 CIVIL TERM v. ETZWEILER & RADEBAClland: JURY TRIAL DEMANDED ROBERT G. RADEBACH, Defendants COMPLAINT AND NOW, this 30'h day of October, 2000, comes the Plaintiffs, Michael J. Frey and Oarlien Frey, by and through their attomey, Jacqueline M. Verney, Esquire, and avers in support of its complaint against Defendants as follows: I. Plaintiff, Michael 1. Frey, is an adult individual residing at 454 High Street, West Fairview, Cumberland County, Pennsylvania, 17025. 2. Plaintiff, Darlien Frey, is an adult individual residing at401 Front Street, West Fairview, Cumberland County, Pennsylvania, 17025. 3. Oefendanl, Etzweiler & Radebach, at all times pertinent to this complaint, was a general professional partnership organized and existing under the laws of the Commonwealth of Pennsylvania for the purpose of offering legal services to the public whose address was 105 N. Front Street, Harrisburg, Dauphin County, Pennsylvania, 17101. 4. Defendant, Robert G. Radcbach, Esquire, is an adult individual who was at all times pertinent to this complaint. duly licensed to practice law in the Commonwealth of Pennsylvania whose present business address is 107 Locust Street, Harrisburg, Dauphin Counly, Pennsylvania, 17101. . S. At alltim~s p~nincnt to (his complaint, Robcrt G. Radcbach, Esquirc was a general partn~r in th~ law firm of Odcndant, Etzwcil~r & Rad~bach. 6. Plaintiffs, Michael J. Frey and Darli~n Fr~y w~r~ duly appoint~d co. ~xecutors ofth~ Estat~ ofJohn W. Fr~y, (hereinal1er "Estat~") dat~ of death, November 25, 1991, on or about Dcc~mb~r 4, 1991. 7. On or about D~ccmbcr4, 1991, the Plaintiffs employed Robert G. Radebach. Esquire, a partner in lhe law firm of Etweiler & Radebaeh to represent them in the probate and administration of the Estate. The Defendants, Robert G. Radebach and Etzweiler & Radcbach, billed th~ estate and were paid $5,221.28 for the legal services they p~rformed. 8. A portion of the Estate eonsist~d of two rental properties located at 216 and 218 4th Street, West Fairview, Cumberland County, Pennsylvania. 9. PlaintilTs were nev~r advised by Robert G. Radebach or any other member of the tirm of Etzweiler & Radebach to op~n an estate bank account. 10. Plaintiffs w~re nev~r advis~d by Robert G. Radebach or any other member of the tirm of Etzweiler & Rad~bach to ke~p time records, receipts, and expenses for the rental properties separate from their individual assets or from the expenses of the rental property of the plaintiff, Michael J. Frey's d~ceased grandmother. II. Plaintiffs transf~rred the real propeny located at 216 and 218 4th Stre~t, West Fairview, Pennsylvania to one of the co.~xecutors, Plaintiffhere!n, Michael J. Frey and another beneticiary, Richard Prey on June 18, 1993 for $44,500.00. 2 12. Plaintiffs did not rcceivc court approval for thc transfcr oflhc rcal pro~rty pursuant to the Probatc. Estatc, and fiduciaries Code, Scction 3356. 20 Pa. C. SA section 3356. 13. As a rcsult ofthc mismanagcment and self-dealing of the co-executors, and because of their failure to obtain court approval, the Honorable Harold E. Sheely removed the eo-execulorslPlaintilTs herein as co-executors of the estate of John W. Frey. See Opinion and Order of Court dated May 2, 1996 attached hereto as Exhibit"A". 14. In addilion to being removed from the position of co-executors, the Plaintiffs were surcharged 530,500.00 by Judge Sheely. See Exhibit "An. I S. The Plaintiff Michael J. frey paid the surcharge of$30,SOO.00 on April 6, 1999. 16. The PlaintilTs paid to the Defendants as legal fees the sum of 55,221.28. 17. Defendant Radebach failed to properly advise the Plaintiffs on the proper administration of the estate, in that, he: a. advised Plaintiffs that court approval to transfer real estate to a co-executor was not required; b. failed to advise lhe PlaintilTs to open an eslate bank accounl; c. failed to advise the PlaintilTs to keep time records, receipts and expenses for estate eXflenses separate from their individual accounts and from the expenses for other real estate owned by Michael 1. Frey's deceased grandmother. d. failed to properly prepare the PlaintilTs for testimony in various proceedings concerning the Estate. J 18. Dcli:nJant RaJel1aeh's actions, omissions and errors amounted to gross ncgligence. 19. As a result of Defendant Radebach's failure to properly advisc the Plaintiffs, the Plaintill's have sull'cred monetary damages and costs and expenses to linalizc the estate of John W. Frey. COUNT I NEGLIGENCE PLAINTIFFS V, ROBERT G. RADEBACH 20. The averments in paragraphs 1 to 18 are incorporated herein as if set forth at length. 21. As a rcsult of the attomey-client relationship created by lhe above conduct of the parties, Ocfendant, Robert G. Radebach, had a legal duty to represent Plaintiffs with reasonable care, skill and diligence possessed and exercised by the ordinary attomey in similar circumstances. 22. Defendant Radebach's conduct in failing to obtain court approval of the transfer of Estate real estate to the co-executor was a breach of Defendant Radcbach's duty to exercise reasonable care, skill and diligence on Plaintiffs' behalf. 23. Defcndant Radebach's negligent failurc to advise the Plaintiffs to obtain court approval for the transfer of Estate rcal estate to a co-executor caused Plaintiffs to be removed as co-executors and surcharged 530,500.00. 24. Defendant Radebach's negligent failure to advise the Plaintiffs to obtain court approval for the transfer of Estatc real estate to a co-executor, to open an estate bank account, and 10 kecp time records, receipts and cxpenses separate from other 4 accounts \\as th~ dir~ct wId proximat~ caus~ of the rcmoval of thc Plaintifts as co- cxccutors and bdng surchargcd 530,500.00. 25. As a rcsult of Deli:ndant Radcbach's negligcnt actions,thc Plaintifts havc incurrcd additional legal fccs to defcnd thcjr intcrcsts in thc pro bale of thc Estatc. 26. As a rcsull of Defendant Radebach's ncgligcnt actions, thc Estatc of John W. Frcy has incurred additionallcgal fces which have rcduced thc amount of monetary distribution of th~ Estalc to the PlaintilTs. WHEREFORE, PlaintilTs dcmand judgmcnt against Robcrt G. Radebach, Esquire: a. In the amount of 530,500.00, the amount of the surcharge. b. Retum of the 55,221.28 previously paid as Deli:ndant Radebach's legal fee. e. Payment of executor's fces to Plaintiff Darlien Frey which have not been paid to hcr. d. Reasonable legal fees necessary to defcnd thcir intcrests in the Estate of John W. Frey. e. Attomey's fees incurred by the Estate to pursuc the accounting and audit and to finalizc lh~ probate of the Estate. f. Reasonable altomcy fces and costs for this litigation. g. Punitive damagcs for the gross negligence of Ocfendant. h. Interest on the damages awarded. i. Such other amounlS as the court deems appropriate. 5 COUNT II BREACH OF CONTI{ACT PLAINTIFFS V. RODF.RT G. RADF.DACH 27.The averments in paragraphs I through 26 ar~ incorpo~at~d herein as if set forth at length. 28.Plaintitls and Oef~ndanl Radebuch elllcr~d into a contract whereby Radebach agre~d to render compelentl~gal services to Plaintills. 29.Defendant Radebach breached the contract when h~ failed to properly advise the Plainlitl's as to the proper probate of the Estate of John W. Frey, including but not limited to: a. Advising the Plaintiffs that court approval was not required prior to the transfer of Estate real estate to a co-executor. b. Failing to advise the Plaintiffs to open an estate checking account. e. Failing to advise the Plaintiffs to keep time records, receipts and expenses concerning the administration of the estate and work on the Estate real property separate from other accounts and expenses. d. Failing to properly prepare the Plaintitls for testimony in various proceedings conceming the Estate. WHEREFORE, Plaintiffs demand judgment against Defendant Radebaeh in an amount in excess of $20,000.00, costs of litigation, reasonable allomey fees, punitive damages and such other relief as the Court may deem appropriate. 6 ,. I , COUNT III NEGLIGENCE PLAINTIFFS V, ETZWEILER 84 RADF.BACH 30.The averments in parallraphs 1-29 arc incorporated hcrein as if set forth at length. 31.Plaintiffs' retention of Robcrt G. Radcbaeh is a rctention of the Oefcndantlaw tirm partnership of Etzweilcr & Radcbach. Thus. Dcfcndant Etzweilcr & Radebaeh is responsible for the acts, errors, and omissions of Dcfcndant Radcbach in connection with thc legal serviccs rendercd to Plaintills. 32.As a result of the attorncy-client relationship creatcd by the above conduct of the parties, Defendant Etzweilcr & Radcbach had a duty to rcpresent Plaintiff~ with the reasonable care, skill, and diligence posscssed and cxercised by the ordinary allomey in similar circumstances. 33.0efendant Radcbach's acts of malpractice as prcviously set forth were within the reasonable scope of the business of Dcfendant Etzweiler & Radebach. 34.0efendant Radebach's acts ofmalpractiee amounted to gross negligence. WHEREFORE, Plaintiffs demand judgment against Etzweiler & Radebach: a. In the amount 01'$30,500.00, the amount of the surcharge. b. Retum of the $5,221.28 previously paid as Defendant's Etzweiler & Radebach legal fee. c. Payment of executor's fee to Defendant Oarlien Frey which has not been paid to hcr from the Estate. 7 d. Reasonabll! Il!gallcl!s nl!cl!ssary to dl!lcnd thdr intl!rl!sts in the Estate of John W. Frey. e. Attomey's fees incurred by the Estate to pursue the accounting and audit and to tinalize the probate of the Estate. f. Reasonable attorney fees and cost of litigation for this litigation. g. Punitive damages for the gross negligence of Defendant. h. Interest on lhe damages awarded. i. Such other amounts as the court deems appropriate. COUNT IV BREACH OF CONTRACT PLAINTIFFS V. ETZWEILER & RADEBACH 35. The averments in paragraph 1 through 34 are incorporated herein as if set forth at length. 36. Plaintifts and Oefendanl Etzweiler & Radebach entered into a contract whereby Defendant Radebaeh agreed to render competent legal services to Plaintiffs. 37.0efendant Etzweilcr & Radebach is responsible for the acts, errors, and omissions of Defendant Radebuch in connection with the legal services rendered to Plaintiffs. 38.Defendant Etzweiler & Radebach breached the contract when Defendant Radebach failed to properly advise the PlaintilTs as to the proper probate of the Estate of John W. Frey, as previously set forth in Count II. 8 WHEREFORE, Plaintiffs d~mund judglll~nt ugainst D~f~ndallt Etzw~il~r & Rud~bach in un umount in exc~ss 01'$20,000.00 and such oth~r r~\iefus the Court muy d~~m appropriat~. Respectfully submitted, I iJ ~'31"- oN ~ .~~i4.--< A . V~"-. J cque ine M. Verney, Esquire #21:}67 44 South Hanover Street Carlisle, P A 17013 (717) 243-9190 AlIomey for Plaintiffs 9 vERIFICATION I verify that the statements made in the within Complaint are true and correct to the best of my knowlcdgc, information and belief. I understand that false statements hcrein are made subject to the penalties of 18 Pa. C. S.A. ~ 4904 relating to unswom falsitication to authorities. Dated: /O/2tp)oO ?!!:n~y Jr~ I verify that the statements made in the within Complaint are true and correct to the best of my knowledge, information and belief. I understand that false slatements herein are made subject to the penalties of 18 Pa. C. S. A. section 4904 relating to unswom falsification to authorities. /O!J&/OO ~~L;?~A-/ /V/ ~j.u Oarlien Frey 7 " ." IN '1'BJI HM'TIR 01' 1'B! !STA1'B 01' JOlIN W. FRBY, DBCBASBD I IN TBB COO1t'1' 01' COHHOlf PLBU OF I CVMBBlU.AND COtm'l'Y, PDNSYLVARIA I I HO. 21-91-836 ORPBARS' CoaRr I I ORPIlMS' COOR'l' DIVIS lOR nI U I PftI'l'IOH '1'0 JmMOV!l CD-ZX!CU'1'ORS BBl'OU SIl22t.T. P.J. OPnlION AND ORDER OP COUR'l' Before the court i. the petition ot Ruth Pry and Jo.eph 7ry (petitionlin) .eeking r8lllOYal of Darlien M. prfIY and Michael J. Freya. co-ezecutor. of the above-captioned estate. We held a hearing on the _tter on December ., 1995. Bdets _re thtJn filed and argument was held on April 3, 1996. A briet factual and procedural history of this IllAtter is a. follOWll. John Frey cUed testate on November 25, 1991. At the , time of hi. death, John Prey owned .everal properties in the borough of West Fairvi_, Cumberland County. One of the properties va. .old, and another aet ..ide to house Darlien Frwy, the .urviving apouae. The other property, located at 216-218 Fourth Street (hereiDatter reterred to .. -216-218-), has been the .abject of .igniticant contention. After IllUch maneuveriDg that i. neither relevant nor of record, MIchllel Prey, John Pr.y'1 .OD and cD-executor, arranged the aale ot 216-218 to lWuelt and U. brother, Richard Prey. Thia ule took place without the court approval required by the probate, Eatates and Piduciarie. Code at sectioD 3356. 20 Pa.C.S.A. 53356. Furthermore, the tran.fer of 216-218 va_ IllAde without the benefit ot an appraisal to detendne the current value ot the property, which undoubtedly woa1.d have been ordered by this court. . I ! , ......-... ..... . NO. 21-91-836 ORPIlANS' COtm1' DIVISION In any e..nt, an account wa. filed, a. were objection. thereto, and thi. court appointed an aucUtor, Stephen !09g, I.q., who filed hb report on June 1&, 1994. Thi. court thu deD1ed the exception. that were filed to the auditor'. report iD an opinion and order dated AprilS, 1995. CD July 18, 1995, a citation was issued upon the co- executor. to show cause why they had not cOIIIpUed with the audJ.tor'. report and why they should not be removed a. exeeutors. ~ stated above, we held a hearinlJ on those iuues on Dectllllber 4, 1995. The record of that heariDg indicate. the following. Co- executor Michael Prey testified that he had not followed the cU.rection. of the auditor's report, even thoulJh the report had been co~J.rmed by this court. Michael Frey allo stated that he cUd not open an ..tate Checking account, that he and his co- executor paid e.tat. expanses out of their own funds and expected to he rebaburled, and that he had no idea what to do in order to complete .~fftl.tration of the .state. ~inally, Hichael Frey acmowledlJed that he had arranged the sale of 216-218 without court approval or a Current appraisal. -. . Co-exeeutor Darlien Prey, the surviving Spou.e, also te.ufied at the December 4, 1995, hearinlJ. She stated that she did not execute, any docWDent. for the sale of 216-218, and that sh. had nothing to do with an]' rental of that property. She a.tao atated thaI: she did not Imow if an e.tate checking account had heen opened. . 2 . '. . NO. 21-91-835 ORPHANS' COURT DIVISION A petition to remo.. an uecutor is governed by the Probat., Zstates aad !'iduciaries Code at sections 3182 and 3183. Iu onter to ..en ..rit . hearing on such. petition, the IIOVlUlt: IIUst allege adequate g:c:oWlds tor removal ot the axecutor. 2st.1:e of V.lott, 355 P..Super. 313, 318, 529 A.2d 525, 527 (1987), Th. qroUlldA tor removal at i..u. here, t:a1l:en trOlll section 3182 ar., (1) .. ._sting or aiDan.ging the .state, i. or is likely to become insolvent, or has tailed to perton! any duty JJDposed by lavl or c * * * * * * . tI * (5) when, tor aay other reason, the inter..ts of the e.tate are likely to be jeopardized by his continuance in otfice. 20 Pa.C.S.A. 53182. In this case, the mismanagement of the . ..tate is clear. Firet and foremost, neither ot the co-axecutors cove what haa happened with the estate thus far, aad neither COVll how to complete the adminJ.stration. All tor Darlien Pr.y, _ have no qualJu in removing her trom the _"ministration ot the e.tate, aince her involvement therein haa been peripheral at be.t. Michael Frey teatifilld that he haa not opened lUl eatat. checking ae<:lOIUlt, and treely acknowledged that he engaged in a.lf-dealing with regard to 216-218. In addition to th. above-cle.eribed mi8llW1agelllent, _ beli... that the interests of the ..tat. will be jeopucU.zed by allowing IIiohael. !'rey and Darlien Prey to continue aa eo-executor.. Ba.ed on their performance thuI tar, aad their testimony, _ have little confidence that they could complete administration of the . 3 NO. 21-91-836 ORPHANS' COURT DIVISION e.tate in a timely and proper fa.hion. While we recognize the , po..ibility that the co-executor. may have been the victiml ot poor legal advice, the fact remain. that the re.pon.ibility tor e.tate adminl.tration lie. with the executor, and no one el.e. Th.retor., we find abundant cau.. to remove Kichael and Oarli.n Freya. co-executor. of the eatate of John Frey. Next, we muat addre.. the i.sue of a aurcharge. In bi. report, tbe auditor ordered that any difference between the amount paid for 216-218 ($44,5001 and the appraiaed value would be a .urcbarge to be paid back to the eatate by the per.onal repr.sentative. Thi. court confirmed that order ot the auditor in our opinion and order of April 5, 1995. Unfortunately, although not ".urpri.ingly, there are competing apprai.al. at i.au. her.. On. appraisal, completed on April 27, 1993, set the value of 216-218 at $75,000. Tbe co-executors claim that they , were unaware of that appraisal at the time that the aale of 216- 218 was effected (June, 1993). A aecond apprai~d1, in responae to the petition to remove ~he .co-executors, aet the value of the property at $90,000 a8 of Nqvember 9, 1995. Petitionera now aeek a surcharge in the.amount of the difference between the sale price of the house and its apprai.ed value, aa ordered by the auditor. It f~lls upon us to determine which apprai.al to choose. Because the sale of the property took place in June, 1993, we will use the $75,000 appraisal for the purposes of the surcharge. Therefore, we will order the perianal 4 NO. 21-91-836 ORPHANS' COUR~ DIVISION reprelentative to pay $30,500 ($75,000 - $45,000) into the eltate al a lureharge on 216-218. Petitionere al.o ...k to add oth.r a=ount. to the .urcharge, including attorney t.... At tbi. tim., in vi.w ot our r.moval ot the CO-.xecutor., We will not levy a further eureharge. We vill . however, oncft again order that the auditor'. r.port, confirmed in our opinion ot April 5, 1995, b. complied with, in tull, by all parties. Pinally, the auditor~s report h.rein ordersd .ome benetieiarie. ot John pr.y's will to return to the e.tate certain .ums ot money advanc.d to them against th.ir .hare.. The.e benetieiarie., through the co-executors, augg.st that the amounta they have been ordered to return be deducted trom their ohare of the ultimate di.tribution ot the estate. In viev ot the length and complication. ot the administration. ot this estate, ve vill agree to .uch a system. Bowever, ve virl require that the tinal distribution ot the e.tate be approved by this.court betore any ~~ payment i. made. Furthermore, the $30,500 surcharge mu.t be paid bnck into the estate and 'cannot be deducted from the share ot any beneticiary. Based on the toregoing, we .hall enter the following order. 5 0001891 NO. 21-91-836 ORPHANS' COURT DIVISION 9RDER AND NOW, thb ~ day of HAY, 1995, it b ordered end directed thatl 1. Michael Frey and Darlien Frey be removed .. co. executora of the eatate ot John Frey. 2. Mic~ael Frey and Richard Frey ahall pay · aurcharqe, within aixty (60) daya of the date of thia order, of $30,500 to the estate baaed on their purchaae of 216-218 Fourth Street, West Fairview, Cumbarland county. 3. Any qualitied, intereated party may petition the aeqiater of Willa for lettera of adminiatrat on in order to complete the adminiatration of thia eatate. 4. When lettera are qranted, .11 documenta relatinq to the eatate ahall be turned over to the new adminiatrator. 5. Money advanced to the beneticiaries by the estate aqainat their sharea may be deducted trom the ult~te ahare of tho.e beneficiaries at the time of final distribution. 6. No funda ahall be diatributed from this estate to any beneficiary until final distribution is approved by this court. In that vein, the administrator ot the estate, when it is concluded, shall submit a proposed final distribution to this court for approval. By the Court, 1./ Harold !. SheelY Harold E. Sheely, P.J. . Francea B. Del Duca, Eaquire For the Petitioners Robert G. aadebach, Esquire For the aeapondenta Kevin s. Blanton, Esquire For the Eatate stephen Hoqq, Esquire Court-Appointed Auditor uld -. . 6 000190. - . {'ERTIFICATF. OF Sf,RVICE I hereby certify that a true and correct copy of the foregoing Complaint was served on the following persoos by Iirst class US Mail, postage prepaid on the dat~ indicated: Robert G. Radebach, Esquire 107 Locust Street Harrisburg, P A 17101 Etzweiler & Radebach, 105 N. Front Street Harrisburg, P A 171 0 I Date: /6 -31.1-O-V ttl .It- cq ine M. Vemey, Esquire #23167<S 44 South Hanover Street Carlisle, P A 17013 (717) 243-9190 Attomey for Plaintiffs , ~ . . . l~W OHl([\ POST & SCHELL, P.C. In" ""'HlMt PEN"" w,,~ . '.ll,.;lfE 101 . PO, Bll. IOHa l",,"A~HlI. P(.'M'l\A""lA 17W5U..!48 (n7:l'II.4Hl ".'"~'__"""-'-.o""",", .-. All~ '-" " - . . .. " . ~ r , ..-- ~.,;".z.'._'~"-- ~ -~.--. .- #-'''- -. . , 'j, , \ n 0 - C 1;:J "- :-yo: 1Jr~: Qlll' ~..:) .01::: :. I ,. -/ l: (Ii. . ..;") r:: i: i ~ \' :.- - .. -'-j ,,;C') ;, '!--:(j ~ ..~ ;-i1 ;:..c: ~ ,-.-1 "" ~.ij -- .0 -<. . . . . I~WOfflCl~ POST & SCHELL, P.C. 11"\\IUlA""prPliN WA'" ~UlH 101 . PO Bu_ 101'" I At".C"\HR, I'r""M~ l\AfIoIA I ~bO~-O.N8 (;"1:"] l'il..~~U _~;"......jjJIIi. t'~.--" "'_.--"....--""""""'"~ '17 "~ "i-'~~"'1-:,o_1"( - W '-1' .. T ,;1 ., ,. 'l- i: ~ ; .... ,l j . / ! ! i ( ~ I .~ \ ,\ . . ( , f' ~,..- \ 'J , ,--- ~- ~..;;.=::.--:....~~ ~--~-- CERTIFICATE OF SERVICE I, STEVEN O. COSTELLO, ESQUIRE, attomey for Defendants, ETZWEILER & ASSOCIATES, li'kIa ETZWEILER & RAOEBACH, and ROBERT G. RADEBACH, hereby slate that a true and correct copy of the foregoing doeument(s), sent by tirst-c1ass mail, postage prepaid on the date set forth below, was served upon the following individual(s): Jacqueline M. Vemey, Esquire 44 South Hanover Streel Carlisle, P A 17013 POST & SCHELL, P.C. Jf By:~ '-~ STEVEN D. COSTELLO ID #37288 SANDRA L. FOSTER ID #73234 Date: Ii 1'01 au I II .. ,'i n c ) f; CJ , - .,., , ,":3 r, 1 {j , , :% ., ,:j L.' r~ .. -. )'i ,. ~.. ( ..> ( ~'.) I 0 -', , LAWOfflCU POST 8< SCHELL, P.C. liS' WILLIAM P!NN WAY. SUITE 101 . P,O 10. IOH' LA""CA~TlR. Pt,..,..SH\lA.NIA. 17bQ5-0H' 11I11ll}l.4iJl -- . ~ '.~ " f . , !' . , .-- ;'~-~~ ( -'"O--~'r-'-~~.:..'~,p\ POST & SCHELL, P.C. BY: STEVEN O. COSTELLO 1.0. # 37288 1857 WILLIAM PENN WAY P.O. BOX 10248 LANCASTER, PA 17605-0248 (717) 291-4532 MICHAEL J. FREY, and OARLIEN FREY, Coexecutors of the Estate of John W. Frey, Plaintiffs, ATTORNEYS FOR DEFENDANT ETZWEILER & ASSOCIATES, flkla ETZWEILER & RAOEBACH, and ROBERT G. RADEBACH vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW ETZWEILER & RAOEBACH and ROBERT G. RAOEBACH. 1'10.97-6091 Defendants. JURY TRIAL DEMANDED ORDER AND NOW, this _ day of , 2000, it is hereby ORDERED and DECREED lhat the Preliminary Objections of Defendants Etzweiler & Associates, formerly known as Etzweiler & Radebaeh, and Robert G. Radebach. to Plaintiffs' Complaint are GRANTED. It is further ORDERED and DECREED that: 1. the language "but not limited to" in Paragraph 29 is stricken, 2. the claim for punitive damages is dismissed with prejudice, and 3. the claim for reasonable costs, expenses and attorney's fees is dismissed with prejudice from the Complaint. BY THE COURT: J. POST & SCHELL, P.C. BY: STEVEN D. COSTELLO /.D. # 37288 1857 WILLIAM PENN WAY P.O. BOX 10248 I.ANCASTER, PA 17605-0248 (717) 291-4532 MICHAEL J. FREY, and OARLlEN FREY, Coexecutors of the Estate of John W. Frey, Plainti ffs, ATTORNEYS FOR DEFENDANT ETZWEILER & ASSOCIATES, fIkIa ETZWEILER & RAOEBACH, and ROBERT G. RADEBACH VS. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW ETZWEILER & RAOEBACH and ROBERT G. RADEBACH, No. 97-6091 Defendanls. JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS OF DEFENDANTS ETZWEILER & ASSOCIATES, r/k/s ETZWEILER & RADEBACH, AND ROBERT G. RADEBACH, TO PLAINTIFFS' COMPLAINT Defendants ElZweiler & Associates, formerly known as ElZweiler & Radebach. (hereinafter referred to as ElZweiler & Associates) and Robert G. Radebach, by :md through their counsel, Post & Schell, P.c., hereby files lhe following Preliminary Objections to Plaintiffs' Complaint 1. On or about November 5, 1997. Plaintiffs Michael J. Frey and Oarlien Frey, coexecutors of the Estate of John W. Frey initiated this malpractict: action by filing a Writ of Summons with the Court of Common Pleas of Cumberland County against ElZweiler & Radebach and Robert G. Radebach. II II II I , I , I II I' II L I' Ii ! ! I I' I II i I 2. Thereafter, on or about October 30, 2000, Plaintiffs filed their Complaint for alleged damages arising out of the legal representation rendered to Plaintiffs Michael J. Frey and Oarlien frey. A copy of the Complaint is attached hereto as Exhibit "A." 3. Plaintiffs allege that the Defendants ElZweiler & Radebach and Robert G. Radebach were negligent in lheir legal advice rendered to Plaintiffs Michael J. Frey and Darlien Frey and lhatthey suffered damages as a result of the negligence. 4. Plainliffs further allege that Defendants ElZweiler & Radebaeh and Robert G. Radebach breached the contact when they failed to properly advise the Plaintiffs as to the proper probate of the Estate of John W. Frey. See Exhibit "A." 5. Plaintiffs allege at Paragraph 29 of the Complaint that: 29. Defendant Radebach breached the contract when he failed to properly advise the Plaintiffs as to the proper probate of the Estate of John E. Frey, including bill not limited to: a. Advising the Plaintiffs that court approval was not required prior to the transfer of Estate real estate to a coexecutor. b. Failing to advise the PlaintilTs to open an estate checking account c. Failing to advise the Plaintiffs to keep time records, receipts and expenses conceming the administration of the estate and work on the Estate real property separate from other accounts and expenses d. Failing to properly prepare the Plaintiffs for testimony in various proceedings conceming the Estate Plaintiffs' Complaint, '29 (emphasis added). II I II I " " iI -2- ii I I , , , i I I I I !, I , 6. Defendants ElZweiler & Radebach and Robert G. Radebach respectfully submit that the facts pled by Plaintiffs are legally insuffieicntto sustain a cause ofaction against them for the damages alleged and that Plaintiffs have failed to allege facts with sufficient specificity to support their claim of negligence. 7. Further. Plaintiffs claim they are entitled to punitive damages. However, the facts concerning Oefendanls ElZweiler & Radebach and Robert G. Radebach's alleged liability in this case do not support a claim for punitive damages. A. DEFENDANTS' PREUMINARY OBJECTIONS SHOULD BE GRANTED WHERE THE BOILERPLATE ALLEGATIONS IN THE COMPLAINT FAIL TO ADEQUATELY APPRISE THE DEFENDANTS OF THE SPECIFIC FACTS UPON WHICH PLAINTIFFS' BREACH OF CONTRACT CLAIMS ARE BASED, THEREBY PREJUDICING DEFENDANTS, 8. Plaintiffs Michael J. Frey and Oarlien Frey have failed to allege facts with sufficient specificily 10 support their claim of breach of contracl against Oefendanls Etzweiler & Radebach and Robert G. Radebach. See Pa.R.Civ.P. 1028(a)(3). 9. Pursuant to Pennsylvania Rule of Civil Procedure 1019(a), the plaintiff in a civil aclion must set forth in concise and summary form the material facts on which his cause of action is based. Pa.R.Civ.P. No. 1019(a). 10. Pennsylvania is a fact-pleading slate, and a complaint "must not only apprise the defendant of what the plaintiffs claim is and the grounds upon which it rests, but must also formulate issues by summarizing those facts essential to support the claim." CasselLy. Shellenberger, 356 Pa. Super. 101, 104,514 A.2d 163, 165 (1986) appeal denied, 515 Pa. 603, -3- 529 A.2d 1078 (1987); Alpha Tau Omega Fraternity v. University of Pennsylvania, 318 Pa. ~ Super. 293, 298, 464 A.2d 1349, 1352 (1983). , Ii i II. The defendant in a civil aClion is entitled to be apprised of facts with specificity so lhat he or she may reasonably prepare an appropriale response. See id. 12. A defendant may challenge the lack of speciticity in plaintiffs complaint by way of preliminary objection, either in the nature of a motion to strike or for a more specific pleading due to lack of conformity to law or rule of court. Pa. R.C.P. 1028(a)(3); Connor v. Allegheny General Hosp.. 501 Pa. 306, 311, n.3, 461 A.2d 600,602, n.3 (1983); Arner v. Sokol, 373 Pa. 587,96 A.2d 854 (1953). 13. If the plaintiff does not adhere to this requirement for specificity, great prejudice can result to the defendant. Connor v. Allegheny General Hosp., 501 Pa. 306,461 A.2d 600 (1983). 14. In Paragraphs 29 of Plaintiffs' Complaint, Plaintiffs allege as follows: 29. Defendant Radebach breached the contract when he failed to properly advise the Plaintiffs as to the proper probate of the Estate of John E. Frey, including but not limited to: a. Advising the Plaintiffs that court approval was not required prior to the transfer of Estate real estate to a coexecutor. b. Failing to advise the Plaintiffs to open an estate checking account e. Failing to advise the Plaintiffs to keep time records, receipts and expenses conceming the administration ofthe estate and work on the Estate real property separate from other accounts and expenses -4- d. Failing to properly prepare the Plaintiffs for testimony in various proceedings conccming the Estate Plaintiffs' Complaint, '29 (emphasis added). I S. The italicized lan6uage set forth in Paragraph 29 of the Complaint is insufficiently specitic inasmuch as Defendants Elzweiler & Radebaeh and Robert G. Radebach cannot respond to those acts of alleged negligence which are not pled in the Complaint. 16. Plaintiffs' Complaint does not, therefore, "apprise the defendant of what the plaintilT's claim is and the grounds upon which it rests" nor does it "formulate issues by summarizing those facts essential to support the claim." Cassell v. Schellenberger, supra; Alpha Tau Omega Fraternity v. University of Pennsylvania. supra. 17. These overly broad and vague terms could allow Plaintiffs to "amplify" the general allegations of negligence as late as the date of trial to the detriment of Defendants Etzweiler & Radebaeh and Robert G. Radebach. See Connor v. Allegheny. General Hasp. supra. 18. If these allegations are allowed to remain in the Complaint, Plaintiffs could introduce evidence in support of multiple theories of negligence against Defendants Etzweiler & Radebach and Robert G. Radebach as late as the date of trial, without ever having plead the specitic facts to support them. ld. 19. Great prejudice could be visited upon Defendants under such a circumstance because they would be unable to adequately defend against factual allegations of which they were unaware until the date of trial. -5- 20. The allegations as they currently ellist grant a license to Plaintiffs to surprise Defendants ElZweiler & Radebaeh and Robert G. Radebaeh as late as Ihe date of trial, therehy prejudicing them. 21. This result violates the intent of the Pennsylvania Rules of Civil Procedure. See Sole, el al. v. Habbe1, supra; Packrall v. Park, sllpra. B. MOVING DEFENDANTS' PREUMINARV OBJECTIONS SIIOlJU) BI<: GRANTED FOR FAILURE TO STATE A CAUSE OF ACTION (lPON WHICH RELIEF MA V BE GRANTED WIIERE PLAINTWI<'S l<'AIU:n TO ALLEGE FACTS SHOWING EVIL MOTIVE OR RECKU:SS INDIFFERENCE TO THE RIGIITS OF OTIIERS IN SUPPORT <W Tm:IR POTENTIAL CLAIM FOR PUNITIVE DAMAGES. 22. Because Plaintiffs have failed to alleged sufticient facts to support a potemial claim for punitive damages, lhe claim for punitive damages contained in the Complaint should he dismissed. See Pa.R.Ci\'.P. 1028(a)(4). 23. Pennsylvania is a fact-pleading slate. See Pa.R.Civ.P. 1019(a). 24. Under the Pennsylvania system of pleading, the plcadcr must definc thc Issucs; every act or performance essential to that end must he set forth inthc wlllplalm. Mlkelic, M,l>.. v. Baron, M.D.. el aI., 4.50 Pa. Super. 91, 67.5 A.2d 324 (1996). 25. The question presented by the demurrer pursuant to Pennsylvunia Rlllc "I' Civil Procedure 1028(a)(4) is whether, on lhe facts avem'll, the law says with certainty that no recovery is possible. Moser v. Heistand, .54.5 Pa. .5.54, .5.59, 681 A.2d 1322, 132.5 (11)1)6) (quolina VaUlrno v. Lower Bucks Hospital, Inc., .502 Pa. 241, 244, 46.5 A.2d 1231,1232-33 (1983)). -6- 26. The Pennsylvania courts have adopted the principles of the Restatement (Second) of Torts ~908(2), which provides as follows: (2) Punitive damages may be awarded for conduct that is outrageous, because of the defendant's evil motive or his reckh:ss indifference to the rights of others. In assessing punitive damages, the trier of fact can properly consider the character of the defendant's aCl, lhe nature and eXlent of the harm to the plaintiff that the defendant caused or intended to cause and the wealth of the defendant. See Martin v. Johns-Manville Corp.. 508 Pa. 154,494 A.2d 1088 (1985) (adopting Restatement (Second) ofTorts 908(2)). 27. Evil motive (or willful conduct) has been interpreted to mean that the actor desired to bring about the result that followed or at least that he was aware that it was substantially certain to ensue. This, of course, would necessarily entail actual prior knowledge of the trespasser's peril. Evans v. Philadelphia Transportation Co.. 418 Pa. 567, 574, 212 A.2d 440,443 (1965). 28. Reckless indifference to the righls of others has been interpreted to mean that the "actor has intentionally done an act of an unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow." Smith v. Brown, 283 Pa. Super. 116, 120,423 A.2d 743, 745 (1980). 29. Punitive damages are appropriate to punish and deter only extreme behavior and, even in the rare instances in which they are justified, are subjcctto strict judicial control. Martin v. Johns-Manville Corp.. 508 Pa. 154, 169,494 A.2d 1088, 1096 (1985). -7- 30. Punitive damages may not be awarded for conduct that constitules ordinary negligence, such as inadvertence, mistake or error of judgment. McDaniel v. Merk Sltllfp IInd Oohme, 367 Pa. Super. 600, 553 A.2d 436 (1987). 31. Punitive damages are not available for conduct that constilUles gross negligence. Smith v. Celotex Corp., 387 Pa. Super. 340,564 A.2d 209 (I9!!9). 32. Plaintiffs allege that they are entilled to punitive damages for the gross negligence of Oefendams. See, e.g.. Plaintiffs' Complaint, at 126g and 34g. 33. Plaintiffs have failed to sufficiently delineate what Movinll Defendants specilically did which would warramthe imposition of punitive damages. See Miketlc, M.D. v. Baron, M.D., et aI., supra; see Giannani, et aI. v. Foy, et a1.. 67 Del. Co, Rep. 26 (1979) (striking claim for punilive damages where the allegations of the complaint merely suppurted II tinding of negligence but failed to show that the defendants knew or had reuson 10 know Ihattheir conduct involved such a high degree of probability lhat substantial harm to 01 hers would result). 34. Plaintiffs clearly allege thaI Oefendam Radehach's actions, omissions und errors amoumed to gross negligence. See Plaintiffs' Complailll lit 11!! und 34. (emphasis added). 35. Plaintiffs claim they are enlitlL'd to punillve damages for the IIflJSS negligence of Defendant. See Plaintiffs' Complaint at 26g and 34g. (emphasis added). 36. Because Plaintiffs have not allegL'd facts sumclent to support a claim for punitive damages and gross negligence will not sustllln an IIward for punitive damages, the claim for -8. 1 'i ! , punitive damages should be stricken from the Complaint. Smith v. Ce10tex Corp., 387 Pa. Super. 340, 564 A.2d 209 (1989). C. DEFENDANTS' PRELIMINARY OBJECTION TO TilE COMPLAINT SIIOULD BE GRANTED TO DISMISS THE CLAIM FOR ATTORNEYS' FEES AND COSTS WHERE NEITHER A STATUTE NOR A CONTRACT NOR SOME OTHER RECOGNIZED EXCEPTION SUPPORTS THE IMPOSITION OF THESE ALLEGED DAMAGES UNDER THE CIRCUMSTANCES PRESENTED IN TilE COMPLAINT. 37. Plaintiffs have failed 10 state a cause of action upon which attorneys' fees and costs may be granted. See Plaintiffs' Complaint. 38. "The general rule is that the parties to litigation are responsible for their own counsel fees and costs unless otherwise provided by statutory authority, agreement or some other recognized exception." See Wrenfield Home Owners Assoc.,lnc. v. DeYoung, 410 Pa. Super. 621, 600 A.2d 960 (1991), quoting Mantellv. Mantell, 384 Pa. Super. 475, 488, 559 A.2d 535,542 (1989); Chatham Communications, Inc. v. General Press Corp., 463 Pa. 292,344 A.2d 837 (1975). 39. Plaintiffs' Complaint claims entitlement to reasonable costs and expenses, allomeys' fees and any other amounts as the court deems appropriate. See, e.g., Plainti ffs' Complaint. 40. Plaintiffs fail to identify the existence of any statutory authority that would support their claim for attorneys' fees and costs. See Plaintiffs' Complaint. 41. Plaintiffs have not plead any agreement or contract supporting the imposition of these damages. See Plaintiffs' Complaint. .9- 42. Plaintiffs have not pled any other recognized exception which would enable thcm to recovery attomeys' fees and costs in this case. See, e.g., Barnett v. Reed. 51 Pa. 190 (1866) (allowing the recovery of attorneys' fees in tort action for malicious abuse of process). 43. Without citing to a specitic statute, contract or other recognized exception, Plaintiffs have failed 10 properly plead a claim for attomeys' fees under Pennsylvania law. See A.B.L. Liquidating Co. v. McCabe, 62 D.&C. 2.1. 29, 34 (Bucks Co. 1973) (holding that "attomeys' fees are, as a general rule, not legally cognizable in Pennsylvania" unless allowed by a specitie exception). WHEREFORE. Defendants ElZweiler & Associates, formerly known as ElZweiler & Radebach, and Robert G. Radebach, respectfully request that this Honorable Court grant Defendants' Preliminary Objections and the language "but not limited to" in Paragraph 29 be stricken from the Complaint, Plaintiffs' claim for punitive damages be dismissed from the Complaint and Plaintiffs' claim for reasonable costs, expenses and attorney's fees be dismissed from lhe Complaint. POST & SCHELL, P.C. \ By: <:.:.u .J STEVEN O. COSTELLO ID #37288 SANDRA L. FOSTER ID #73234 i I I Date: ~\ OeJ -10- " :1 II II Ii ,I I, 'I 'I II 'i ii " CERTIFICATE OF SERVICE 'I I , I , !I I, II I, STEVEN O. COSTELLO, ESQUIRE. attorney for Defendants, ETZWEILER & ASSOCIATES, f/kIa ETZWEILER & RADEBACH. and ROBERT G. RADEBACH, hereby state thai a true and correct copy of the foregoing documcnl(s), sent by tirst-c1ass mail, postage prepaid on the date set forth below, was served upon the following individual(s): Jacqueline M. Vemey, Esquire 44 South Hanover Street Carlisle, PA 17013 POST & SCHELL, P.C. \ "- BY'-- ~VEN D~ELLO ID #37288 SANDRA L. FOSTER ID #73234 Date: ...d (u( 0< w (") r; . , s . t: ; I ": r;-, 1 <- l' ,..- ( " ..,., " ~>d ; ; ;"l '_I) -<. , " -~ , , 11 \ ~ j \ t: (.: lL' ..,. J . (!~:: '.l I 'l I.' I;' . f I", . .\JU.I.l,\ 'J\! JUlpnh.Ji' f JO )JljJO',Wl , , . -u~ 0 n t::\ " , r, ..1 f"'l ~r" (., f '.'1 _.-/l ~~~ I ::::'-"1 ,_., , ~ .L ~u -u : ,'..' ~8 '~'CB :L ". i'.,~ Cd . "1 !; 4.J' .r ~ t:" ~ (.0) .... MICHAEL J. FREY, and DARLlEN FREY, Co-executors of the Estate of John W. Frey, Plaintiffs : IN TilE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY,PENNSYLVANIA : CIVIL ACTION - LAW NO. 97-6091 CIVIL TERM v. ETZWEILER & RADEUAClIlInd: JURY TIUAL DEMANDEJ> ROBERT G. RAJ>EBACII, Defendants NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages. you must take action within twenty (20) days after lhis Complaint and Notice are served, by entering a written appearance personally or by attorney and tiling in writing with the court your defenses or objections tot he claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court withoUl further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintitf. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty A .enue Carlisle, PA 17013 (717)249-3166 ~fL1I'; . ~acqu . eM. Verney, Esquire #~ 44 Soulh Hano.er Slreet Carlisle, PA 17013 (717) 243-9190 MICHAEL J. FREY, and DARLlEN FREY, Co-eueutors or the Eslate or John W. Frey, Plaintirrs : IN THE eOlIRT OF COMMON PLEAS OF : CUMBERLAND COUNTV,PENNSVLV ANIA : CIVIL ACTION - LAW NO. 97-6091 CIVIL TERM Y. ETZWEILER & RADEBACH IInd: JlJI{Y TRIAL DEMANDED ROBERT G. RADEBACH, Ddendan15 AMENDED COMPLAINT AND NOW, this I :>1'uay of O~c~mb~r, 2000, comes the Plaintiffs, Michael J. Frey and Darli~n Fr~y, by and through their attorney, Jacqueline M. Vemey, Esquire, and avers in support of its am~nded complaint against Defendants as follows: I. Plaintin: Micha~1 J. Frey, is an adult individual residing at 454 High Str~et, West Fairview, Cumberland County, Pennsylvania, 17025. 2. Plaintiff, Darli~n Frey, is an adult individual r~siding at40l Front Street, West Fairview. Cumberland County. P~nnsylvania, 17025. 3. Oef~ndanl, Etzweiler &. Rad~bach, at all times pertinent to this complaint, was a general professional partnership organized and existing und~r the laws of the Commonwealth of Pennsylvania for the purpose of otTering legal s~rvic~s to the public whose address was 105 N. Front Stre~t, Harrisburg, Dauphin County, P~nnsylvania. 17101. 4. Defendant. Robert G. Rad~bach. Esquire, is an adult individual who was at alltim~s pertinent to this complaint. duly licensed to practice law in the Commonwealth of P~nnsylvania whos~ pres~nt busin~ss address is 107 Locust Street, lIarrisburg. Dauphin County, P~nnsylvania. 17101. 5. At alltimcs pcrtincntlo lhis cOll1pJailll. ({uhcrt G. Radchach. !'squire was a gcncral partncr in thc law linn of Dcfcndant. EtLwcilcr & Radcbach. 6. Plaintitl's. Michael J. Frcy and Darlicn Frcy y.crc duly appointcd co- CXcculors ofthc Estatc of John W. Frey, (hcrcinalicr "Estate") date of dcath, Nowmber 25. I <)1) I, on or about Deccmber 4, 1991. 7. On or about Deccmber4. 1<)91.1he Plainlitl's cmployed Robert G. ({adebach, Esquire, a partncr in lhc law firm of Etwcilcr & Radcbach to represent them in the probate and administration of the ESlalc. The Ocfendallls. Robert G. Radebach and EtLweiler & Radcbach, billcd the cstate and wcrc paid $5,221.28 for the Icgul serviccs they pcrlormed. 8. A portion of the Estatc consisted of two rental properties located at 216 , I I I I i i I , I , I and 218 4th Street. West Fairview, Cumbcrland County, Pennsylvania. 9. PlaintilTs were ncver adviscd by Robcrt G. Radcbach or any othcr member of the firm of Etzwcilcr & Radebach to open an cstate bank account. 10. Plaintill's werc nevcr adviscd by Robert G. Radebach or any othcr member ofthc firm of Etzwcilcr & Radcbach to kccp timc rccords. rcccipts, and expenscs lor the , rental properties scparatc from their individual assels or from the expenses of the rental property ofthc plaintiff. Michacl J. Frcy's deceased grandmother. II. Plaintitl's transterred the real propcrty located at 216 and 218 4th Street, West Fairvlcw, Pennsylvania to one of the co-exccutors. Plaintiffhercin. Michael J. Frey and another beneficiary, Richard Frey on June 18. 1993 for $44,500.00. r-~ 2 \ - 12. PlaintilTs did not rcccive court approval for thc transfcr of thc rcal property pursuant to the Probatc, Estates and Fiduciarics Code, Scction 3356. 20 Pa. C. SA section 3356. 13. As a result of the mismanagcment and self-dealing of the co-executors, and because of lheir failure to :Jbtain court approval, thc Honorabh: Harold E. Sheely n:moved the co-executorS/Plaintiffs hcrein as co-executors of the estate of John W. Frey. See Opinion and Ordcr of Court dated May 2.1996 attachcd hereto as Exhibit "A". 14. In addition to being removcd from thc position of co-executors, the Plaintiffs were surcharged $30,500.00 by Judge Sheely. See Exhibit "A". 15. The PlaintilTMichael J. Frey paid thc surcharge of$30,SOO.00 on April 6, 1999. 16. The PlaintilTs paid to the Dcfcndants as legal fees the sum of $5.221.28. 17. Defendant Radebach failed to properly advise the PlaintilTs on the proper administration of the estate, in that, he: a. advised PlaintifTs that court approval to transfer real estate to a co-executor was not required; b. failed to advise the Plaintifi's to open an estate bank account; e. failed to advise the P;aintiffs to keep time records, receipts and expenses for estate expenses separate from their individual accounts and from the expenses for other real estate owned by Michael 1. Frey's deceased grandmother. d. failed to properly prepare the PlaintilTs for testimony in various proceedings conceming the Estate. J 18. Dcfcndant Radcbach's actions. omissions and crrors amountcd to gross ncgligcnce. 19. Dclimdant Radcbach's actions. omissions and crrors wcrc willful, wanton Ilnd malicious and justify thc awarding ofexcmpiary damagcs and punitiw damagcs. 20. As a rcsult of Defcndant Radcbach's failurc to propcrly advisc thc PlaintilTs, thc Plaintiffs have sulTcred monctary damagcs and costs and expenses to linalize the estate of John W. Frey. COUNT I NEGLIGENCE PLAINTIFFS V. ROBERT G. RADEOACH 21. The averments in paragraphs lto 20 arc incorporated herein as if set forth at length. 22. As a result ofthc allome)'-dicnt rdationship ereatcd by the above conduct of the parties, Dcfendant, Robert G. Radebach, had a Icgal duty to rcprcscnt Plaintiffs with reasonable care, skill and diligcnce posscssed and exercised by the ordinary attorney in similar circumstances. 23. Dcfendant Radebach's conduct in failing to obtain court approval of the transfcr of Estate real cstate to the co-exccutor was a brcach of Dcfcndant Radebach's dUly to exercise reasonable care, skill and diligcncc on PlaintilTs' bchalf. 24. Defendant Radebach's negligent failure to advise the Plaintiffs to obtain court approval for the transfcr of Estate real eslate to a co-executor caused Plaintiffs to be removed as co-excculors and surcharged $30,500.00. 4 25. D.:fendant Radebach's negligent failun: to advise the PlaintilTs to obtain coun approval for the transle:r of Eslate real estate to a co-executor, to open an estate bank account, and to keep time records, receipts and expenses separate from other accounts was the direct and proximate cause of the removal of the Plaintiffs as co- executors and being surchurged $30.500.00. 26. As a result of Defendant Radebach's negligent actions, the Plaintiffs have incurred additionallegalle:es and costs to defend their interests in the probate of the Estate in the amount of$9,179.S0. 27. As a result ofOele:ndant Radebach's negligent actions, the Eslate of John W. Frey has incurred additional legal fees in the amount of$14,922.00. which have reduced the amount of monetary distribution of the Estate to the PlaintilTs. 28. As a result of the Defendant Radebach's negligent aClions, the Estate of John W. Frey has incurred additional administration fees in the amount of $4,000.98. 29. As a result of the Defendant Radebach's negligent actions, Plaintiff, Darlien Frey did not receive her executor's le:e in the amount 01'$2,610.60. WHEREFORE, Plaintiffs demand judgment against Robert G. Radebach, Esquire: a. In the amount of $30,500.00, the amount of the surcharge. b. Return of the $5,221.28 previously paid as Defendant Radebach's legal fee. c. Payment ofexecutor's fee to PlaintilTOarlien Frey in the amount of $2,610.60, which has not been paid to her. s d. R~asonabk kllalle:~s nc~~ssar)' 10 dde:nd thcir int~rcsls in lh~ ESlat~ of John W. Fr~)' in th~ amount of $9,179.50. e. Attorney' s le:~s incurrcd by' the Estate to punu~ th~ accounting and audit und to linalize the probate of the Estate in the amount 514,922.00. f. Reasonable uttorney li:es and costs for this litigation in accordance with 42 Pa.C.S.A. section 2503. g. Exemplary damages and punitive damages. h. Interest on the damages awarded. i. Such other amounts as the court deems appropriate. COUNT II BREACH OF CONTRACT PLAINTIFFS V. ROBERT G. RADEBACH 30.The averments in paragraphs I through 29 are incorporated h~rein as if set forth utlength. 31.PlaintilTs and D~fendant Radebach ~nter~d into a contract whereby Radebach agreed to render compet~ntlegal servic~s to PlaintilTs and the PlaintilTs agreed to pay Defendant for said competent legal services. 32.0efendant Radebach breached the contract when he failed to properly advise the Plaintiffs as to the proper probat~ of the Estate of John W. Frey: a. Advising the PlaintifTs that court approval was not required prior to the transfer of Estate real estate to a co-executor. 6 b. Failing to adviso: lho: Plaintiffs 10 up.:n an o:stato: cho:cking account. c. Fuiling to adviso: tho: Pluintin's to keep timo: records, reco:ipts and exp.:nso:s conco:rninl! lho: udminislratiun of lho: estate and work on the EstalO: real prop.:rty so:paralO: from other accounts and expcn~s. d. Failing to properly pro:pare the PlaintifTs lor testimony in various proceedings concerning tho: ESlato:. WHEREFORE, Plaintifl's do:mand judgmo:nt against Defendant Radebaeh; a. In tho: amount of S~O,500.00, the amount of the surcharge. b. Return of the SS,221.28 previously paid as Defo:ndant Radebach's legal fee. e. Payment of o:xecutor's feo: to Plaintifl' Oarlio:n Fro:y in the amount of S2,61O.60, which has not bo:en paid 10 ho:r. d. Reasonable legalfco:s neco:ssary to d.:lcnd th.:jr intero:sts in tho: Estate of John W. Frey in the amount ofS9,179.S0. e. Attomo:y's fees incurred by the Estate to pursue tho: accounling and audit and to tinalize tho: pro bale of tho: Estate in tho: amount ofS14,922.00 f. Reasonablo: attorney's fees and costs for lhis litigation in accordance with 42 Pa.C.S.A. section 2503. g. Exemplary damages and punitive damages. h. Interest on the damages awardo:d. i. Such other amounts as the court do:ems appropriate. 7 COllNT 1/1 NI':GLlGENCf: PLAINTIFFS v, ETZWF.Il.F.R & Ro\DEBAClI 33.The: ave:rments in paragraphs 1.32 are: incorpurated h.:rein as if se:t forth at I.:ngth. 34.Plaintitl's' ret.:ntion ufRob.:rt G. Radebach is a reh:ntion ofth.: D.:fendantlaw firm partnership of Etzweil.:r & Rad.:bach. Thus, O.:fendant Etzwe:i1e:r & Radebach is re:sponsible for the: acts, e:rrors, and omissions of Odendanl Rad.:bach in connection with the legal se:rvices re:ndered to Plaintil1's. 3S.As a result of the allomey-client relationship creat.:d by the above conduct of the parties, Defendant Etzweiler & Radebach had a duty to represent Plaintiffs with the: reasonable care, skill, and diligence possessed and exercised by the ordinary attorney in similar circumstances. 36.D.:fendant Radebach's acts of malpractice as previously set forth were within the re:asonable scope of the business of Defendant Etzweiler & Radebach. 37.0efendant Radebach's acts of malpractice amounted to gross negligence. 38. Defendant Radebach's actions, omissions and errors were willful, wanton and malicious. l WHEREFORE, PlaintitTs demand judgment against Etzweiler & Radebach; a. In the amount of $30.500.00, the amount of the surcharge. b. Retum of the $5,221.28 previously paid as Defendant's Etzweiler & Radebach legal fee. 8 c. Payment of executor's fee to Ddendant Darlicn Frey in the amount of 52,610.60. which has not been paid to her from the Estate. d. Reasonable legal fees necessary to defend their interests in the Estate of John W. Frey in the amount 01'59,179.50. e. Attomey's fees incurred by the Estate to pursue the accountinll and audit and to linalize the probate of the Estate in the amount of 514,922.00. f. Reasonable attomey fees and cost of litigation for this litigation in accordance with 42 Pa.C.S.A. section 2503. g. Exemplary damages and punitive damages. h. Interest on the damages awarded. i. Such other wnounts as the court deems appropriate. COUNT IV BREACH OF CONTRACT PLAINTIFFS V, ETZWEILER & RADEOACH 39.The averments in paragraph I through 38 are incorporated herein as if set forth at length. 40. Plaintiffs and Defendant Etzweiler & ~adebach entered into a contract whereby Defendant Radebach agreed to render competent legal services to Plaintiffs. 41.Defendant Etzweiler & Radebach is responsible for the acts. errors, and omissions of Defendant Radebach in connection with the legal services rendered to PlaintitTs. 9 42,D.:li:ndant Ell\\.:ikr & Rad.:ba~h brea~hed the conlra~l wh.:n Ddi:ndant Rad.:bach fail.:d to propcrly advis.: th.: Plaintiffs as to the prop.:r probate of the Estat.: of John W. Frey, as previously set forth in Count II. WHEREFORE, Plainliffs demandjudgmenl against Defendant Etzweiler & Radebach: a. In the amount of 530,500,00, the anlount of the surcharge. b. Relurn of the 55,221.28 previously paid as Defendant Etzweiler & Radebach' legal fee. c. Payment of executor's ti:e to Plaintiff Darlien Frey in the amount of 52,610,60. d. Reasonable legal fees necessary to defend their interests in the Estate of John W. Frey in the amount of59,179.S0. e. Attorney's fees incurred by the Estate 10 pursue the accounting and audit and to finalize the probate of the Estate in the amount of5 14,922.00. r. Reasonable attomey ti:cs and costs for this litigation in accordance with 42 Pa.C.SA section 2503, g. Exemplary damages and punitive damages. h. Interest on the danlages awarded. i. Such other amounts as the court deems appropriate. 10 Respectfully submitted, , ~ '1 /It cq ine M. Verney, ESqUir~ '14 Soulh Hanover Street Carlisle, P A 17013 (717) 243-9190 Attorney for PlaintilTs /,1 II VERU'ICATION We verify thlltthll statemllnls made in thll within Amendlld Complaint are true and correct to thll b.:st of our knowledgll, information and belief. We understand that falsll statllmllnts hllrein are made subject to thll penaltills of 18 Pa. C. S.A. ~ 4904 relating to unsworn falsiliclltion to authorities. Dated: I 2 - 1- )000 ~~J~ ~.~ Oarlien Frey EXHIBIT "A" .. ..' . IN TD HM'TIR OF ':JIB IS'1'A1'3 or JOHN W. PRBY , ElIc:u.s1D I III TBB COUR'1' OF COHH01f Pr.DS OF I cmmmu:.AHJ) COtm'l'Y', pBNlfSl'LVABIA I I HO. 21-91-836 ORPBARS' COCK: I I ORPHANS' COOR'1' DIVIS lOB nr RJ! I PM'I'l'IOH '1'0 RJl!MOVP: CQ<oEX!CU'I'ORS BIfPO~ SA1!!Kt..Y. p,.:/,. OPINION AND ORDER OPO COURT a.fore the court is the petitiOD of Ruth Pry and Joseph Pry (petitioners) s.eking raovaJ. of Darlien M. prey and MichAel J. Prey a. co-exec:utors of the above-captioaed .etat.. W. held · bear.i.Dg CD the _tter on J)eclember 4, 1995. Briefs were tho fil.d and argument was held on April 3, 19U. A brief factual and procedural history of thi. _ttu u as follOWll. John Prey died tell1:&te on Hovember 25, 1991. At the , time of hi. death, John Prey OWDed several properties iD the borough of We.t !'airview, Cumberland County. ODe of the properties was .old, and another ..t adde to hou.e EluUen Prey, the aurviviDg spouse. The other property, located at 216-218 Fourth Street (hereiDafter referred to as -216-218-), ~ bean the aubject of aignificot cODtentioD. After IllUch JIIllDeavering that i. neither relevant Dor of record, Ktclille1 Frey, John Prey'a son and co-executor, arranged the .ale of 216-218 to h.fJuelf and bill brother, Richard Prey. Thia .ale took place without the . . court approval required by the probate, Eatate. and Fiduciarie. Code at .ection 3356. 20 Pa.C.S.A. 53356. FurthU1llQre, the transfer of 216-218 was made without the benefit of an appraiaal to det.rmf fte the curreDt value of the property, which undoubtedly would have beeD ordered by t:h1. court. . .... .....-.......... . , . . . 'NO. :U-91-836 ORPHANS' COORl' DIVISION .' I'D a:JJY eveDt, an aCcoUDt v.. fUed, a. vere object:iou. thueto, ADd t:hJ.. court appointed an auditor, Stepbu Bon, ..q., who filed hie r.port: on June 16, 1994. Thi. court: theu dellied the exception. that were filed to the auditor'. report iD an opinion and order dated April 5, 1995. On July 18, 1995, a citatiOI1 w.. ieaued upon the co- executor. to .how cau.e why they had not complied with the auc:litor'e report ADd why tbey .hould Dot be removed a. executor.. loa .tated above, we beld a h.a:dng 011 tho.e b.ue. on December " 1995. 1'he record of that heuing indicatlll tbe following. Co- executor Michael rrey teetJ.fied that he had not followed the dJ.reat..t.on. of tbe auditor'. report, even though the report had . been aonf.f..med by thb court:. Micbael Prey abo etated that he dic! not open an e.tate Checking account, that he ADd hi. co- executor paid e.tate expense. out of the.t.r own funds and AXFBcted to be re.f.mblU'.ed, ADd that he had 110 J.d. a what to do in order to ClClllplete .m..h.f .tration of the e.tat.. !'inally, Michael !'rey acknowledged that he had arrADged the ..1. of 216-218 without court: approval or a Current apprunl. . -. . Co-executor Dulien Frey, the .urviving .pou.., aleo te8tl.fied at the December " 1995, hearing. She .tated that .he dic:l Dot execute, ADY document. for the eale of 216-21S, and t:h&t ahe hac! DOthing to do with any rental of thAt property. She &l10 11:&tecl that .he did not know it an e.tate checking ACCount hac! baeD Opened. . 2 .. NO. 21-91-835 ORPHANS' COURT DIVISION . .. A petition to r8lllO". an uecutor i. governed by the Probate, Zstate. and liduciarie. Code at .ection. 3182 a.uc:l 3183. In order tn even .erit a bearing on .uch a petition, th~ ~AD~ ~.~ allege adequate ground. tor r_o9'al ot the executor. Bet:at. o1! yelott, 355'a.Super. 313, 318, 529 A.2d 525, 521 (1981). The grOWlC!. for rllllOVal at illue here, t:aJcen trom lection 3182 arel (1) . .. wasting or mllllU1aging the e.tate, i. or 11 likely to becOlll8 inloly.nt, or bas failed ~o perfona any duty jmposed by lawl or . . . . . . . . . (5) when, for any other rea.on, the intere.~. of the e.tate are likely to be jeopard!zed ~ hi. oontinuance in otfice. 20 'a.C.S.A. 53182. ID thi. case, the mismanagement of the , e.t&te iI clear. Fir.t and forlllllO.t, neither of the co-executon mow. what hal happened with the e.t:ate thuI tar, and neither mow. hOll to COlllplete the a"",h.f stration. AI for DarUen 'tr1lY, VII have no qu.l III. in r8lllO"ing her from the .<:1"'." f .tration of the ell1:&te, .ince her involvement therein has beeD peripheral at be.t. Michael !'rey te.tified that he has not opened AD estate abecklDg account, and freely acknowledged ~at he engaged in -... . .elf-c:lealing with regard to 216-218. :Cn addition ~o the aboYe-delcr1bed mi.m.ana9_eD~, VII believe that the intere.~. of the e.tate will be jeopardized by allowing Kloh-.l Frey ADd Dullen !'rey to continue aI co-executor.. Ba.ed OD their p4tJ:'formaDce thu. far, and their testimony, VII han littl. confidence that they could cOJJJPlete administration of the . 3 . '. , , . -~--- . - ~ - . , NO. 21-91-836 ORPHANS' COURT DIVISION e.tate in a timely and proper fa.hion. While w. r.cognize the , po..ibility that the co-executor. may have been the victLm. of poor legal advice, the fact remain. that the re'poD.ibility for e.tate adminl.tration lie. with the executor, and DO one .11.. Therefore, ve find abundant caule to remove Michael and DarlieD Freya. co-executor. of the e.tate of John Frey. Next, we mu.t addre.. the i..ue of a .urcharg.. In hi. report, the auditor ordered that any difference between the amount paid for 216-218 ($44,500) and the epprai.ed value would be a lurcharge to b. paid back to the e.tate by the perlonal repre.entative. Thi. court confirmed that order of the auditor in our opinion and order of AprilS, 1995. Unfortunately, although not'.urpri.ing1y, there are competing apprai.al. at ilsue here. One appraieal, completed on April 27, 1993, eet the , value of 216-218 at $75,000. The co-executors claim that they . were unaware of that appraisal at the time that the .ale ot 216- 218 wae effected (June, 1993). A second apprai~d1, in re.ponse to the petition to remove ~he.co-executors, set the value of the . property at $90,000 as of N9vember 9, 1995. Petitioners now seek a surcharge in the'amount of the difference between the sale price of the house and its appral.ed value, a. ordered by the auditor. It f~lls upon us to determih. which appraisal to choose. BecaUBe the eale of the property took place in June, 1993, we will ule the $75,000 appraisal for the purposes of the surcharge. Therefore, we will order the per.onal " !. ,. . 4 NO. 21-91-836 ORPHANS' COUR~ DIVISION representative to pay $30,500 ($75,000 - $45,000) !nt~ the .Itate al a lurcharge on 216-218. Petitioners allO leek to add other amounts to the lurcharge, including attorney teu. At this time, in view of our removal of the co-executors, We will not levy a turther surcharge. We vill . however, oncft again order that the auditor's report, confirmed in our opinion of AprilS, 1995, be complied with, in full, by all parties. Finally, the auditor~8 report herein ordered 80me benetieiariee ot John Frey'S will to return to the estate certain sums ot money advanced to them against their sharel. ~hlle beneticiariel, through the co-executorl, suggelt that the amounte they have been ordered to return be deducted from their ohare of , the ultimate distribution of the estate. In view ot the length , and complications of the administration, of this estate, ve vill agree to such a system. However, we wirl require that the tinal distribution ot the estate be approved by this.court belore any ..... payment is made. Furthermore, the $30,500 surch~rge must be paid bnck into the estate and 'cannot be deducted from the share of &ny beneficiary. _ . Based on the foregoing, we Ihall enter the following order. . 5 0001891 . . NO. 2l-9l-R36 ORPHANS' COURT DIVISION 9RDER ANII NOW, thb J.d. day of 10.1', 1996, it b ordered and cU.:ected t.hatl 1. Michael Frey and Darlien Frey be removed as co- executors of the estate of John Frey. 2. Michael Frey and Richard Frey shall pay a surcharge, within sixty (60) days of the date of this crder, of $30,SOO to the estate based on their purchase of 216-218 Fourth Street, West rairview, Cumberland County. 3. Any qualified, interested part! may petition the Register of wills for letters of administrat on in order to complete the administration of this estate. 4. When letters are granted, all documents relating to the estate shall be turned over to the new administrator. , S. Money advanced to the beneficiaries by the estate against their shares may be deducted from the ultimAte share of those beneficiaries at the time of final distribution. 6. No funds shall be distributed from this estate to any beneficiary until final distribution is approved by this court. In that vein, the administrator of the estate, when it is concluded, shall submit a proposed final distribution to this court for approval. By tbe Court, 1./ Harold E. Sheel~ Barold E. Sheely, P.J. . Frances B. I1el I1uca, Esquire For the Petitioners Robert G. Radebach, Esquire For the Respondents Kftvin S. Blanton, Esquire For the Estate stephen 9099, Esquire Court-Appointed Auditor uld . -. . 6 000190. - . CF:RTIt'J('ATF. OF SERVKF. I hereby certify that u true uml ,urrc,t ,upy uf thc Amcndcd Compluint was scrved on the following person by first dass mail, pustage prcpuid on thc date indicated: Steven D. Costello, Esquire P.O. Box 10248 Lancastcr, P A 17605-0248 , 1 1 1 Date: /). ~ I -" <> cq line M. Vemey, Esquire #2 44 South Hanover Street Carlisle, PA 17013 (717) 243-9190 Allomey fur Natural Mothcr . Ii lAWOHIUS POST & SCHELL, P.c. 1157 WILLIAM PlNN WAy' SUITE 101 . PO. Bill 1020'11 lANC.A"'UIt, P{l\ii"o,SH'.."MA I1b05.0~41 11l111'lI..nu <""'4:"~"""""""""''--~-'-~~'~-- ".....,..""""-"',"~i.;,;;;.~'..,;~ "J1'"'r' ",.,. -,.' .' M' " , . ~ ... . . , . . !" , ,~- ~'_:;;:':-~~""-- --,-- -.,r"'_' 'J, il ;! POST & SCHELL. P.c. BY: STEVEN O. COSTELLO I.D. # 37288 1857 WILLIAM PENN WAY P.O. BOX 10248 LANCASTER, PA 17605-0248 (717) 291-4532 MICHAEL J. FREY, and DARLlEN FREY, Coexecutors of the Estate of John W. Frey, Plainti ffs, ATTORNEYS FOR DEFENDANT ETZWEILER & ASSOCIATES, flk/a ETZWEILER & RAOEBACH, and ROBERT G. RAOEBACH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA " II q II I, Ii :1 I! 1: Ii I' I' " " vs. CIVIL ACTION - LAW ETZWEILER & RAOEBACH and ROBERT G. RAOEBACH, No. 97-6091 Defendants. JURY TRIAL DEMANDED PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please lisllhe wilhin mailer for Ihe nexl: o Pre-Trial Argumenl Court .Il( Argumenl Court I , I , :1 I: Ii I ,: II ,I 'I I II !I I, Ii 1. Slate matter to be argued (i.e.. plaintifrs molion for new trial; defendant's demurrer to complainl, etc.): Defendants' Preliminary Objections to Plaintiffs' Amended Complaint. 2. Identify counsel who will argue case: (a) for plainliff: Jacqueline M. Vemey, Esquire Address: 44 South Hanover Street, Carlisle, PA 17013 (b) for defendanl: Sandra L. Foster, Esquire Address: 1857 William Penn Way, P.O. Box 10248, Lancaster, PA 17605-0248 3. I will notify all parties in writing within two days that this case has been listed for argument. 4, Argument Court Date: February 14,2001 Call of Argument List Date: January 25, 2001 i; j' II Ii II !i it POS~& S~::(.C. By: '~~~ L. FOS~R ID #;3234 Date:~ .) t. n r-, I CO ~.~ "TJr 7"'1 PJr. . ...:'0' --, ;;.~; ,"".' (', c:.. r~ .--.. :..'; 0!~: Z~; ~ ,- -. , A.. ' -,~-~ .......~ !iL".- , ( , . 1 , . I,AWf,)#rrr.IS POST" SCHELL, P.C. la~'YtIIUA.'" P(PIINWA.'Y' 'iUlllllJl .'0 1&u.IUJ4' tAM"'\fll. ptN,..~nVAJ\ltA I rbOSOH' . . 1111l~'fl,.nJl -',.",...;;;;.,,.'.,,~~i_~r''"';,;' I: .~---- ... . . ..... . . , . . i . ~ ., r .-' \ ., \ J , \ -- ~~~~'~-~ro: ,. I: i: d p '! POST & SCHEU" P.C. BY: STEVEN D. COSTELLO !.D. # 37288 1857 WILLIAM PENN WAY P.O. BOX 10248 LANCASTER, PA 17605-0248 (717) 291-4532 MICHAEL J. FREY, and DARLlEN FREY, Coexecutors of the Estate of John W. Frey, Plaintiffs, ATTORNEYS FOR DEFENDANT ETZWEILER & ASSOCIATES, f/kla ETZWEILER & RAOEBACH, and ROBERT G. RAOEBACH vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW ;i , :1 ;1 " ii Ii ETZWEILER & RADEBACH and ROBERT G. RADEBACH, No. 97-6091 !i ii !J !! ii Ii :1 :i i! Defendants. JUR Y TRIAL DEMANDED ORDER AND NOW, this day of , 2000, it is hereby ORDERED and DECREED '! ii 'I I, !: II " 'i I, " 'I " , Ii ii i' ,I !! ;: that the Preliminary Objections of Oefend.lnls Etzweiler & Associates, formerly known as Etzweiler & Radebach, and Robert G. Radebach, to Plaintiffs' Amended Complaint are GRANTED. It is further ORDERED and DECREED that: 1. the claim for punitive damages is dismissed with prejudice, and 2. the claim for reasonable costs, expenses and attorney's fees is dismissed with , I: ;; Ii I: " " " Ii Ii Ii il 'I I, !I I, Ii II !I !: ., prejudice from the Amended Complaint. BY THE COURT: J. , 'I '! " iI POST & SCHELL, P.C. BY: STEVEN D. COSTELLO 1.0. 1137288 BY: SANDRA L. FOSTER 1.0. 1173234 1857 WILLIAM PENN WAY P.O, BOX 10248 LANCASTER, PA 17605-0248 (717) 291-4532 MICHAEL 1. FREY, and OARLIEN FREY, Coexecutors oflhe Estate of John W. Frey. Plaintiffs, ATTORNEYS FOR DEFENDANT ETZWEILER & ASSOCIATES, ~a ETZWEILER & RADEBACH, and ROBERT G. RAOEBACH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. ETZWEILER & RADEBACH and ROBERT G. RADEBACH, No. 97.6091 Defendants. JURY TRIAL DEMANDED : ~ i: ii j1 'I " PRELIMINARY OBJECTIONS OF DEFENDANTS ETZWEILER & RADEBACH AND ROBERT G. RAOEBACH TO PLAINTIFFS' AMENDED COMPLAINT " 1: , !I :1 Defendants ElZweiler & Associales, formerly known as ElZweiler & Radebach, (hereinafter i' , I ~ ! referred to as ElZweiler & Associates) and Robert G. Radebach, by and through their counsel. Post & Schell, P.c., hereby files lhe following Preliminary Objeclions to Plaintiffs' Amended Complaint. I. On or about November 5, 1997, Plaintiffs Michael J. Frey and Darlien Frey, coexecutors of the ESlate of John W. Frey initiated this malpractice action by filing a Writ of Summons with the Court of Common Pleas of Cumberland County against Defendants ElZweiler & Radebach and Robert G. Radebach. 2. Thereafter, on or about O~tober 30. 2000, Plaintiffs filed their Complaint for alleged damages arising out of the legal representation rendered to Plaintiffs Michael J. Frey and Oiirlien Frey. 3. On November 7. 2000. Defendants ElZweiler & Radebach and Robe" G. Radebach tiled Preliminary Objections, and supporting Brief to Plaintiffs' Complaint. 4. Prior to a ruling on the Preliminary Objections, Defendants ElZweiler & Radebach and Robert G. Radeba~h re~eived Plaintiffs' Amended Complaint. thereby rendering the Preliminary Objections moot. See Pa.R.Civ.P. 1028(;:)(1). 5. Plaintiffs' Amended Complaint was received by Moving Defendants on December 5.2000. A copy of Plaintiffs' Amended Complaint is attached hereto as Exhibit "A." 6. In Plaintiffs' Amended Complaint. Plaintiffs allege that Defendants ElZweiler & Radebach and Robert G. Radebach were negligent in their legal advice rendered to Plaintiffs Michael 1. Frey and Darlien Frey and thallhey suffered damages as a result of lhe negligence. See Exhibil "A." 7. Plainliffs further allege that Defendants Euweiler & Radebach and Robert G. Radebach breached lheir contact when they failed to properly advise the Plaintiffs as to the proper probate oflhe ESlale of John W. Frey. See Exhibit "A." 8. Defendanls ElZweiler & Radebach and Robert G. Radebach respectfully submit that the facts pled by Plaintiffs do not support a claim for punilive damages. -2. 9. Further. Plaintiffs claim they are entitled to punitive damages for breach of contract action. However, Pennsylvania law precludes a recovery for punitive damages for breach of contract as a matter of law. 10. Plaintiffs further claim they are entitled to attorney feeJ, however. neither statute, contract nor some olher recognized exceplion supports the imposition of attorneys' fees under the drcumslances presented in the Amended Complaint and Pennsylvania case law specifically Slates that a claim for attorneys fees may not be asserted by complainl. 11. Because Plaintiffs have failed to alleged sufficient facts to support a potential claim for punitive damages, the claim for pU"1itive damages contained in the Amended Complaint should be dismissed. See Pa.R.Civ.P. 1028(a)(4). 12. Pennsylvania is a fact-pleading state. See Pa.R.Civ.P. 1019(a). 13. Under the Pennsylvania system of pleading, the pleader must de tine the issues; every act or performance essential 10 lhat end must be set forth in the complainl. Miketie. M.O.. v. Baron. M.D.. et aI., 450 Pa. Super. 91, 675 A.2d 324 (1996). 14. The question presented by the demurrer pursuant 10 Pennsylvania Rule of Civil Procedure 1028(a)(4) is whether. on the facts averred. the law says with certainty that no recovery is possible. Moser v. Heistand. 545 Pa. 554. 559, 681 A.2d 1322. 1325 (1996) (quoting Vattimo v. Lower Bucks Hospital.lne.. 502 Pa. 241, 244, 465 A.2d 1231, 1232-33 (1983)). 15. The Pennsylvania courts have adopted the principles of the Restatement (Second) of Torts A908(2), which provides as follows: -3- (2) Punitive damages rny be awarded for conduct that Is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others. In assessing punitive damages, the trier of fact can properly consider the character of the defendant's act, the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause and the wealth of the defendant. See Martin v. JolUls-MiUlville Corp.. ~08 Pa. 154,494 A.2d 1088 (1985) (adopting Restatement (Second) of Torts 908(2)). 16. Evil motive (or willful conduct) has been interpreted to mean that the aClor desired to bring about the result that followed or at least that he was aware that it was substantially certain to ensue. This, of course, would necessarily entail actual prior knowledge of the trespasser's peril. Evans v. PhiladeJphiaTransportation Co.. 418 Pa. 567,574,212 A.2d 440, 443 (1965). 17. Rtckles~ indifference to the rights of others has been interpreted to mean that the i ,i II i' il Ii II I' " " ii 'I 'I " II II ,I 'I I ~ " Ii I Ii "actor has intentionally done an act of an unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow." Smith v. Brown, 283 Pa. Super. 116, 120,423 A.2d 743, 74~ (1980). 18. Punitive damages are appropriate to punish and deter only extreme behavior and, even in the rare instances in which they are justitied, are subject to strict judicial control. Martin v. Johns-Manville Corp.. 508 Pa. 154, 169,494 A.2d 1088, 1096 (1985). 19. Punitive damages may not be awarded for conduct that constitutes ordinary negligence, such as inadvertence, mistake or error of judgment. McDaniel v. Merk Sharp and 11 " , Ii " , ii ii II ii Ii Ii ~ ! Oohme, 367 Pa. Super. 600, 553 A.2d 436 (1987). -4- II [I I " 20. Punitive damages are not available for conduct that eonstitules gross negligence. I !! Ii II " Ii Smith v. Ce10telt Corp., 387 Pa. Super. 340,564 A.2d 209 (1989). 21. Furthermore, neither negligence, nor even gross negligence, shows sufficient Ii culpability to juslify punitive damages award. Id. ii , !I !i 22. Further. the Supreme Court has held that punitive damages may be awarded against an allorney for aClS of legal malpractice if the conduct was malicious, wanton, reckless, willful Ii ii :i !i ii ii ,I 'I or oppressive. Rizzo v. Haines, 520 Pa. 484, 555 A. 2d 58 (1989). 23. Plaintiffs allege that they are entilled to punitive damages. See. e.g.. Plaintiffs' Amended Complaint, al 129g, 32 g, 38g and 42g. II it !' ji 24. Plaintiffs have failed to sufficiently delineale what Moving Defendants specifically did which would warrant the imposition of punilive damages. See Miketic, M.D. v. Baron, Ii jl I: " i' '. iI I: i! Ii Ii i: ii !: M.O.. et aI.. supra; see Giannani, et aI. v. Foy, et aI., 67 Del. Co. Rep. 26 (1979) (slriking claim for punilive damages where the allegations of the complaint merely supported a finding of negligence but failed 10 show that the defendants knew or had reason to know that their conduct involved such a high degree of probability that substantial harm to others would result). Ii " " Plaintiffs have inappropriately pled conclusions and not facts in support of their 25. II I; Ii pOlential claim for punitive damages. " " Ii " " I I I! 26. Plaintiffs have not stated a claim upon which punilive damages may be granted, the claim for punitive damages contained in the Amended Complaint should be stricken. See Miketic, M.D.. v. Baron, M.D., et aI., supra; see Giannani. et al. v. Foy, et aI., supra. 'I II ., i! -5- i ~ Ii ii ii i' It " " I, 27. In the alternative, Plaintiffs have failed to state a cause of action upon which relief :, I, il i! " " " ii II II I, Ii I' I' !I " Ii " ,I Ii II !I I, I I I I ,I Ii Ii I I I " II I: I' :1 " :i ,! Ii I' II II I I Ii ji , may be granted for their punitive danlages claim arising out of the breach of contract action. See Plaintiffs' Amended Complaint, at Count II and Count IV. 28. Plaintiffs allege that Moving Defendants committed breach of contract against Plaintiffs Michael J. Frey and Darlien Frey in that Moving Defendant Robert G. Radebach failed to properly advise the Plaintiffs as to the proper probate of the Estate of John W. Frey. See Plaintiffs' Amended Complaint, at '32 and 42. 29. In Count II and Count IV, Plaintiffs claim that Plaintiffs are, therefore, entitled to judgment for punitive damages. See Plaintiffs' Amended Complaint, at CountU and Count IV. 30. The law is clear that punitive damages are not recoverable in an action for breach of conlract. Nelson v. State Farm Mutual Automobile Ins. Co., 988 F.Supp. 527 (E.O. Pa. 1997), quoting AMIPM Franchise Assoc. v. Atlantic Richfield, 526 Pa. 110,584 A.2d 915, 927 (holding in an contract case that .we do not believe lhat our case law or the Uniform Commercial Code aulhorized a legitimate claim for exemplary damages"); Thorsen v. Iron and Glass Bank, 328 Pa. Super. 135,476 A.2d 928 (1984). 31. The punitive damages contained in Count II and Counl1V ofthe Amended Complaint should be stricken. 32. Plainliffs have failed to state a cause of action upon which attomeys' fees and costs may be granted. See Plaintiffs' Amended Complaint. 33. "The general rule is that the parties to litigation are responsible for their own counsel fees and costs unless otherwise provided by statutory authority, agreement or some other recognized .6- I, i! II :i Ii i: I I I' I , , I' 47. Pennsylvania case law speeitieally states that n claim for attorneys fees under 42 Pa.C.S.A. ~2S03 may not be asserted by complaint. Seghetti v. Hertiliate Resorts oCGettysburg, 19 Pa. 0 & C 4th 218 (Adams County, 1993). WHEREFORE, Plaintiffs have failed to set forth a prima facie claim for punitive damages against Moving Defendants Etzweiler & Associates, formerly known as Elzweiler & Radebach, and Robert G. Radebach and failed to state a cause of action upon which attorneys fees and costs may be granted. Hence, Moving Defendants respectfully request that its demurrer to Plaintiffs' claim for punitive damages against Oefendanls Etzweiler & Radebach and Robert G. Radebach be granted and that Plaintiffs' claim for punitive damages be dismissed from the Amended Complaint and that Plaintiffs' claim for attorneys fees and costs be dismissed from the Amended Complaint. In the alternative, Moving Defendants request that the Court issue an Order striking the claim for punitive danlages contained in Plaintiffs' Amended Complaint in Count II and Count IV and strike the claim for attomeys fees and costs contained in Plaintiffs' Amended Complaint. ar.: POST & SCHELL, P.C. ,-", .. )-=--_._~~ STEVEN D. COSTELLO ID #37288 SANDRA L. FOSTER ID #73234 Date: \~\tt\oV . , I , I il Ii II -9- r. , , '; , " -" rl , ., 1.-. - 1 t , , l';'-l ~:". ; ,- '- .' [ " :;:.: I'.J , , c: -, . S! t;:) :Ii -<. n r__:, C" , ~. " r'; ~ '1 J It! I 0' f " , ~'.:: , , 1'\ .-' , -, ..n , , :-j - " " -< (.) ,"" MICIIAEL J. f'REY, und I)ARUEN f'REY, Co-exetutors of the Estute of John W. Frey, Plaintiffs IN TilE COliRT OF COMMON PLEAS OF CUMDERLANI> COUNTY,PENNSYLV ANIA CIVIL ACTION - LA W NO. 97-6091 CIVIL TERM v. ETZWEILEK & RADEDACII und: JURY TRIAL DEMANI>ED RODERT (;. RADEBACII, l>efendunts NOTICE YOU HAVE BEEN SUED IN COUKT. If you wish to dcfend against the c1nims sct forth in thc following pagcs, you must takc action within twenty (20) days alier this Complaint and Notice are servcd, by cntcring a written appearance personally or by attorncy and tiling in writing with the court your defenses or objections tot he claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in thc Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or propcrty or other rights important to you. YOU SHOULD TAKE TillS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE TilE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Libeny A venue Carlisle, PA 17013 (717)249-3166 Ln-<-' L~ /h. t!/-A, v'acq\l;'line M. Verney, Esquire #23167 "6- 44 South Hanover Street Carlisle. PA 17013 (717) 243-9190 MICHAEL J. FREY, and DARLIEN FREY, Co-uetutors of the Estate of John W. Frey, Pllllntlffs IN THE COURT Oft' COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYL VANIA : CIVIL ACTION - LAW v. NO. 97.6091 CIVIL TERM ETZWEILER'" RADEBACH and: .WRY TRIAL DEMANDED ROBERT G. RADEBACH, Defenda'lls SECOND AMENQEO COMPLAINT AND NOW. this day of February. 2001. comes the PlaintitTs. Michael J. Frey and Darlien Frey, by and through their allomey, Jacqueline M. Verney. Esquire. and avers in suppon of its second amended complainlagainst Defendants as follows: 1. Plaintill: Michael J. Frey, is an adult individual residing at 454 High Street. West Fairview. Cumberland COUnl)', Pennsylvania. 17025. 2, Plaintiff. Darlien Frey, is an adult individual residing at401 Front Street, West Fairview, Cumberland COUnly, Pennsylvania, 17025. 3. Defendant, Etzweiler & Radebach, at all times peninent to this complaint, was a general professional pannership organized and existing under the laws of the Commonwealth of Pennsylvania for the purpose ofo!Tering legal services to the public whose address was 105 N, Front Street, Harrisburg, Dauphin County, Pennsylvania, 17101. 4. Defendant, Roben G. Radebach, Esquire, is an adult individual who was ~,t all times peninentto this complaint, duly licensed to practice law in the Commonwealth of Pennsylvania whose present business address is 107 Locust Street, Harrisburg, Dauphin County, Pennsylvania, 17101. 5, At all times pertinent to this complaint, Robert G. Radebach, Esquire was a general partner in the law tirm of Defendant, Etl\\eiler & Radebach, 6, PlaintilTs, Michad J. Frey and Darlien Frey were duly appointed co- exeeutors of the Estate of John W. Frey, (hereinaner "Estate") date of death, November 25,1991. on or about December 4. 1991. 7. On or about December 4, 1991, the Plainliffs employed Robert G. Radebach, Esquire. a partner in the law firm of Etweiler & Radebach to represent them in the probate Wid administration of the Estate. The Defendanls, Robert G. Radebach and Etzweiler & Radebach, billed the estate and were paid $5,221.28 for the legal services Ihey performed. 8. A portion of the Estate consisted of two rental properties located at 216 and 218 4'h Street, West Fairview. Cumberland County, Pennsylvania, 9. PlaintilTs were never advised by Robert G. Radebach or any other member of the Iirm of Etzweiler & Radebach to open an estate bank account. 10. Plaintills were never advised by Robert G. Radebach or any other member of the Iirm of Etzweiler & Radebach to keep time records, receipts, and expenses for the rental properties separatc from thcir individual assets or from the expenses of the rental property of the plaintilT, Michael J. Frey's deceased grandmother, 11. Plaintills transferred the real property located at216 and 218 4'h Strcet, West Fairview, Pennsylvania to onc of the co-cxecutors, PlaintilTherein, Michael J. Frey and another beneliciacy, Richard Frey on June 18. 1993 for $44,500.00. 2 12, Plainlitrs did not receive court approval for the transfer of the real property pursuant to the Probate, Estates and Fiduciaries Code, Section 3356, 20 Pa. C. 8.A, section 3356. 13. As a result of the mismanagcment and self-dealing l1f the co-executors, and because of their tililure to obtain court approval. the Honorable Harold E. Sheely removed the co-exccutorslPlaintills hcrein as co-executors of the estate of John W. Frey. Sce Opinion and Order of Court dated May 2, 1996 allached hereto as Exhibit "An. 14. In addition to being removed from the position of co-executors, the PlaintilTs were surcharged 530,500.00 by Judge Sheely. See Exhibit "A". 15. The PlaintilT Michael J. Frcy paid the surcharge of$30,500,OO on April 6, 1999 16. The Plaintiffs paid to the Defendants as legal fees the sum of$5,22 1.28. 17. Defendant Radebach failed to properly advise the Plaintifl's on the proper administration of the estate, in that, he: a. Intentionally and in total disregard of the law, advised Plaintiffs, after consulting with Etzweiler. that court approval to transfer real estate to a co. executor was not required, when he knew or should have known that the law required court approval; b. failed to advise the Plaintiffs to open an estate bank account; c. failed to advise the Plaintiffs to kcep time records, receipts and expenses for estate expenses separate from their individual accounts and from the expenses for other real estate owned by Michael J. Frey's deceased grandmothr.r. 3 d. failed to properly prepare the Plaintill's for testimony in variouJ proceedings concerning the Estate. 18, Defcndant Radebach's actions. omissions and errors amounted to gross negligence. 19. Delcndant Radebach's actions, omissions and errors were willful, wanton, malicious and constituted outrageous and a reckless disregard and indifference to the Plaintill's rights whichjustilies the awarding of exemplary damages and punitive damages. 20. As a result of Defendant Radebach's failure to properly advise the PlaintitTs, the PlaintilTs have sutTered monetary damages and costs and expenses to Iinalize the estate ofJohn W. Frey. COUNT I NEGLIGENCE PLAINTIFFS V. ROBERT G. RADEBACH 21. The averments in paragraphs Ito 20 are incorporated herein as if set forth at length. 22. As a result of the attorney-client relationship created by the above conduct of the parties, Delcndant, Robert G. Radebach, had a legal duly to represent Plaintiffs with reasonable care, skill and diligcnce possessed and exercised by the ordinary attorney in similar circumstances. 23. Delcndant Radebach's conduct in Iililing to obtain court approval of the transfer of Estate real estate to the co-executor was a breach of Defendant Radebach's duty to exercise reasonable care, skill and diligence on Plaintiffs' behalf. 4 24, Defendant Radebach's negligent failure to advise the Plaintiffs to obtain court approval for the transfer of Estate real estate to a co-executor causcd Plaintil1s to be removed as co-executors and surcharged $30,500,00, 25. Deli:ndal1l Radebach's negligent failure to advise the Plaintiffs to obtain court approval for the transfcr of Estate real estate to a co-executor, to open an estate bank account. and to keep time records, receipts and expenses separate from other accounts was the direct and proximate cause of the removal of the Plaintiffs as co- executors and being surchurged $30,500.00. 26. As a result of Defendant Radebach's negligcnt actions, the Plaintiffs have incurred additional legal fees and costs to defend their interests in the probate of the Estate in the amount of $9,179.50. 27. As a result of Defendant Radebach's negligent actions, the Estate of John W. Frey has incurred additional legal fees in thc amount 01'$14,922.00, which have reduced the amount of monetary distribution of the Estate to the Plaintifls. 28. As a result of the Defendant Radebach's negligent actions, the Estate of John W. Frey has incurred additional administration fees in the amount of $4,000.98. 29. As a result of the Defendant Radebach's negligent actions, Plaintiff, Darlien Frey did not receive her executor's fee in thc amount 01'$2,610.60. WHEREFORE, Plaintil1s demand judgmcnt against Robert G. Radebach, Esquire: a. In the amount of $30.500.00. the amount of the surcharge. b. Return of the $5,221.28 previously paid as Defendant Radebach's legalli:e. ~ c. Paymcnt of executor's fce to Plaintiff Darlien Frey in thc amount of $2,610.60, which has not been paid to her. d. Reasonable legal/ees necessary to dc/end their interests in the Estate of John W. Fre:J in the amount of $9.179.50. e. Attorney's fees incurrcd by thc Estate to pursue the accounting and audit and to Iinalize the probate ofthe Estate in the amount $14,922.00. f. Exemplary damages and punitive damages. g. Interest on the damages awarded. h. Such other amounts as the court deems appropriate. COUNT II BREACH OF CONTRACT PLAINTIFFS V. ROBERT G. RADEBACH 30.The averments in paragraphs I through 29 are incorporated herein as if set forth at length. 31.Plaintiffs and Defendant Radebach entered into a contract whereby Radebach agreed to render competent Icgal services to Plaintif/s and the Plaintiffs agreed to pay Defendant for said competent legal services. 32,Defendant Radebach breached the contract when he failed to properly advise the Plaintifls as to the proper probate of the Estatc of John W. Frey: a. Advising the Plaintiffs that court approval was not required prior to the transfer of Estate rcal estate to a co-executor. 6 b. Failing to advise the Plaintiffs to open an estate checking account. c. Failing to advise the Plaintiffs to keep time records, receipts and expenses concerning the administration of the estale and work on the Estate real property separate from other accounts and expfnseS. d. Failing to properly prepare the Plaintills for testimony in various proceedings concerning the Estate, WHEREFORE, Plaintiffs demand judgment against Defendant Radebach: a. In the amount of 530,500.00, the amount of the surcharge. b. Return of the $5,221.28 previously paid as Defendant Radebach's legal fee. c. Payment of executor's fee to Plaintiff Darlien Frey in the amount of $2,610,60, which has not been paid to her. d. Reasonablc legal fees necessary to defend their interests in the Estate of John W. Frey in the amount 01'$9,179.50. e. Attorney's fees incurred by the Estate to pursue the accounting and audit and to finalize the probate of the Estate in the amount of$14,922.00 f. Interest on the damages awarded. g. Such other amounts as the court deems appropriate. COUNT III NEGLIGENCE PLAINTIFFS V, ETZWEILER '" RADEBACH 7 33,The averments in paragraphs 1-32 arc incorporated herein as if set forth at length. 34.Plaintill's' retention of Robert G, Radcbuch is a retention of the Defendant law lirm partnership of Etzweiler & Radebach. Thus, Defendant Etzweiler & Radebach is responsible lor the acts, errors, and omissions of Defendant Radebach in connection with the legal services rendered to Plainti fls. 35.As a result of the attorney-client relationship created by the above conduct of the parties, Defendant Etzweiler & Radebach had a duty to represent Plaintills with the reasonable care, skill, and diligence possessed and exerci5ed by the ordinary attorney in similar circumstances. 36.Defendant Radebach's acts of malpractice as previously set forth were within the reasonable scope of the business of Defendant Etzweiler & Radebach. 37.Defendant Radebach's acts of malpractice amounted to gross negligence. 38. Defendant Radebach's actions, omissions and errors were willful, wanton, malicious an d constituted outrageous and a reckless disregard or indifference for Plaintiffs rights which justilies the awarding of exemplary damages and punitive damages. i WHEREFORE, Plaintiffs demand judgment against Etzweiler & Radebach: a. In the amount 01'$30,500.00, the amount of the surcharge. b. Return of the $5,221.28 previously paid as Defendant's Etzweiler & Radebach legal fee. c. Payment of executor's fee to Defendant Darlien Frey in the amount of $2,610.60, which has not been paid to her from the Estate. 8 d, Reasonable legal fees necessary to defend their interests in the Estate of John W. Frey in the amount of $9,179.50. t:. Anomey' s fees incurred by the Estate to pursue the accounting and audit and to Iinalize the probate of tht: Estate in the amount of $14,922,00. f. Exemplary damages and punitive damages. g. Intert:st on tht: damages awardt:d. h. Such other amounts as the court deems appropriate. COUNT IV BREACH OF CONTRACT PLAINTIFFS V. ETZWEILER '" RADEBACH 39.The averments in paragraph I through 38 are incorporated herein as if set forth at length. 40, Plaintiffs and Defcndant Etzweilcr & Radebach entered into a contract whereby Defendant Radebach agreed to render competent legal services to Plaintiffs. 41.Defendant Etzweiler & Radebach is rcsponsible for the acts, errors. Wid omissions of Defendant Radebach in connection with the Icgal services rendered to Plaintiffs. 42,Defendant Etzweiler & Radebach breached the contract wht:n Defendant Radebach failed to properly advise the Plaint ills as to the proper probate of the Estate of John W. Frey, as previously set forth in Count II. 9 WHEREFORE, Plaintiffs demand judgmclll against Defendant Etzweiler & Radebach: a. In the wnount of 530.500.00, the amount of the surcharge. ,. b. Return of the $5,221.28 previously paid as Defcndant Etzweiler & Radebach' legal fee. c. Payment of executor's Ii:e to Plaintitl' Darlien Frey in the amount of $2,610,60. d. Reasonablt: legal fees necessary to defend their interests in the Estate of John W. Frey in the amount of $9,179.50. e. Attorney's fees incurred by the Estate to pursue the accounting and audit and to finalize the probate of the Estate in the amount of$14,922.00. f. Interest on the damages awarded. g. Such other wnounts as the court deems appropriate. Respectfully submitted, fiJ.,~, " ;l. u cl/ ^ . (~'-<.- ~/h . ~~ tJacq line M. Verney, Esquire #23 7 44 South Hanover Street Carlisle. PA 17013 (717) 243-9190 Attorney for Plaintiffs 10 VERIFICATION I verify that the statements made in the within Second Amended ComplaintUCll true and correct to the best of my knowledge, informution and belillf. I understand that Iillse statements herein arc malic subject to the penalties of 18 Pa. C. S.A. ~ 4904 relating to unsworn falsilication to authorities. Dated: J,/~/Ol -- lfl/l I .1 -.J ~ ' , v. c./ULL.{ Michael 1. Frev i ~1~~ Duclien Frey .... , .' I ) .. ,\. ... lAW OfflCU POST &. SCHElL, P.C, llU WULIAM PlNNWAV . sunl 101' PO 1o,IOJ"1 lANCASfUl, PlN"'ltW.\NIA 17e.oS.Ol"l (71711'11."SJl ;5*",):'{;~;;~,}_*:"~..~~1~.;d"""""""'''''''''' ;--- J. . .. .. ~- ~.:.:;:------..,.,..-- .-:-----_.,,,''"__ ':":"-7'",:__~.~~:~.. ....'}: {; ij (") c: t;~ ...., ~.. ""tIt ...., Ph. :.J ./... "'\ :.-~ ( (': C.. \ t::l; ! \ '\ .-tl ;;.;(-, .. s;Fi , 0. .. :.1 --I -, ~.- , l~W(}ffl('U POST & SCHEll, PoC. 11I1~llllAM PlNN\'\rA,'I'. !lUlU IUI . 'O_IcI~ 1014' l^~(.A\ruf. Pf~~\'l\i"NI" IlW,.QJ... . , i ! I I 1"'l/l'U'un ..".......~..~-..- ~.,~ ,. ._''---''--'''~;~'''''-'' -~ l' ~ r>j t "'~~"<j _ 'I ,.___.1.... ..........,..., ,. '). M . ~- ~.;........~~ Ii II ii 'I II ., ATTORNEYS FOR DEFENDANT ETZWEILER & ASSOCIATES, flk/a ETZWEILER & RADEBACH, and ROBERT G. RADEBACH POST'" SCHEn, P.c. BY: STEVEN D. COSTELLO I.D, #37288 1857 WILLIAM PENN WAY P,O, BOX 10248 LANCASTER, PA 17605-0248 (717) 291-4532 MICHAEL J. FREY, and DARLlEN FREY, Cocxccutors of the Estate of John W. Frey. Plaintiffs, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW II II II II il I I I vs. ETZWEILER & RADEBACH and ROBERT G. RADEBACH, No. 97-6091 Dcfendants. JURY TRIAL DEMANDED 11 'I I PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next: o Pre-Trial Argument Court )( Argument Court J. State matter to be argued (i.e.. plaintifrs motion for new trial: defendant's demurrer to complaint, etc.): Defendants' Preliminary Objections to Plaintiffs' Sccond Amended Complaint. 2. Identify counsel who will argue case: I II 'I (a) for plaintiff: Jacqueline M. Vemcy, Esquire Address: 44 South Hanover Strcet, Carli sIc, PA 17013 (h) for defendant: Sandra L. Foster, Esquire Addrcss: 1857 William Pcnn Way, P.O. Box 10248, Lancaster, PA 17605-0248 3. I will notify all parties in writing within two days that this casc has been listed for argument. ~, Argument Court Date: Call of Argument List Date: March 28,2001 March 8, 2001 P09\ <!' SCH~L, Pf " ". "-.-. ! ~ \ ----== lly:----.....---' SANDRA L. FOSTER ID #73234 i I i I Ii II I Date:d \1 i( C, I CERTIFICATE OF SERVICE I, STEVEN D. COSTELLO, ESQUIRE, attorney for Dcfcndants, ETZWEILER & ASSOCIATES, fi'kla ETZWEILER & RADEBACH, and ROBERT G. RADEBACH, hereby state that a truc and correct copy of the foregoing document(s), scnt by Iirst-c1ass mail, postage prepaid on the date set forth below, was served upon the following individual(s): Jacqueline M. Verney, Esquire 44 South Hanover Street Carlisle, P A 17013 :~&SCH\~pr ..... . ~ 1 s I ~VEN D. COSTELLO ID 1137288 SANDRA L. FOSTER ID 1173234 Date:~ ~ LJ ('! . : ~ .,'~ t ITd ~.( -r\ 'i' i',J (I l~, . ;.' i.'. r. ' ~ :-) .... .' , 'j : -. . \ . \ l"WOHlC(S POST'" SCHELL, P.C. ,IS1'o\iI\llAM PlNNW"V. SUIt[ 101 . PO 10110i... LANC..A"IlR, PlNNSH\'ANlA 11b05 OJ4' l7t111<n...s1l ......1>Wli.I~'.~ -..~ -...-....... -. ......" ' ,. 'j. M . ~ ~ " , r' I ~- ,':"'~':'~~'''''- "'-. --,~,-- ,. POST'" SCHELL, P.C. BY: STEVEN D. COSTELLO 1.0. # 37288 BY: SANDRA L. FOSTER 1.0. #73234 1857 WILLIAM PENN WAY P.O. BOX 10248 LANCASTER, PA 17605-0248 (717) 291-4532 MICHAEL J. FREY, and DARLlEN FREY, Cocxccutors of the Estate of John W. Frey, Plaintiffs. ATTORNEYS FOR DEFENDANTS ETZWEILER & ASSOCIATES, flkJa ETZWEILER & RADEBACH, and ROBERT G. RADEBACH vs, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW ETZWEILER & RADEBACH and ROBERT G. RADEBACH, No, 97-6091 Defendants. JURY TRIAL DEMANDED ORDER II II Ii , AND NOW, this day of , 2001, it is hereby ORDERED and DECREED that the Preliminary Objections of Defendants ElZweiler & Associates. formerly known as Etzweiler & Radebach, and Robert G. Radebach, to Plaintiffs' Second Amended Cumplaint arc GRANTED. It is further ORDERED and DECREED that the claim for punitive damages is I !I ,I 'I II , I I , i II I' Ii II Ii II II Ii II " " ;1 dismissed with prejudice. BY THE COURT: J. ,I II POST'" SCHELL, P,C. BY: STEVEN D. COSTELLO 1.0, # 37288 BY: SANDRA L. FOSTER 1.0, #73234 1857 WILLIAM PENN WAY P.O. BOX 10248 LANCASTER, PA 17605-0248 (717) 291-4532 MICHAEL 1. FREY. and DARLlEN FREY, Coexecutors of the Estate of John W. Frey, Plaintiffs, ATTORNEYS FOR DEFENDANT ETZWEILER & ASSOCIATES, f/kIa ETZWEILER & RADEBACH, and ROBERT G. RADEBACH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY.PENNSYLV~A vs. CIVIL ACTION - LAW ETZWEILER & RADEBACH and ROBERT G. RADEBACH, No. 97-6091 Dcfendants. JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS OF DEFENDANTS ETZWEILER & RADEBACH AND ROBERT G. RADEBACH TO PLAINTIFFS' SECOND AMENDED COMPLAINT , I II II Defendants ElZweiler & Associates, formerly known as ElZweiler & Radebach, (hereinafter referred to as Etzweiler & Associates) and Robert G, Radebach. by and through their counsel, Post & Schell, P.C.. hereby files the following Preliminary Objections 10 Plaintiffs' Second Amended Complaint, 1. On or about November 5, 1997, Plaintiffs Michael J. Frey and Darlien Frey, I il coexecutors of the Estate of John W. Frey initiated this malpractice action by filing a Writ of I! :i Summons with the Court of Common Pleas of Cumberland County against Defendants ElZweiler II II Ii & Radebach and Robert G. Radebach. ,I I' I I ! I' !I 2. Thereafter, on or about October 30, 2000. Plaintiffs filed their Complaint for , !I " I' II II " II II I: Ii I !! !: :i " :I 'I II ,I II Ii II , II " q II Ii Ii Ii Ii II Ii Ii II Ii I' ,I I' II i: Ii Ii " Ii , :i i ~ ii I' I " I, Ii !! ii I' :1 " !I " , Ii alleg~'tJ damages arising out of the legal representation rendered to Plaintiffs Michael J. Frey and Darlien Frey. 3. On November 7, 2000, Defendants ElZweiler & Radebach and Robert G. Radebach tiled Preliminary Objections, and supporting Brief to Plaintiffs' Complaint. 4. Prior to a ruling on the Preliminary Objections. Defendants ElZweiler & Radebach and Robert G. Radebach received Plaintiffs' Amended Complaint, thereby rendering the Preliminary Objections moot. See Pa.R.Civ.P. 1028(c)( I). 5. Plaintiffs' Amended Complaint was received by Moving Defendants on December 5, 2000. 6. Defendants ElZweiler & Radebach and Robert G. Radebach filed Preliminary Objections. and supporting Brief to Plaintiffs' Amended Complaint. 7. Prior to a ruling on the Preliminary Objections to Plaintiffs' Amended Complaint, Defendants ElZweiler & Radebach and Robert G. Radebach received Plaintiffs' Second Amended Complaint, thereby rendering the Preliminary Objections moot. See Pa,R.Civ.P. 1028(c)(I). A copy of Plaintiffs' Second Amended Complaint is attached hereto as Exhibit" A." 8, Plaintiffs' Second Amended Complaint was received by Moving Defendants on February 7, 200 I. 9. In Plaintiffs' Second Amended Complaint, Plaintiffs allege that Defendants ElZweiler & Radebach and Robert G. Radebach were negligent in their legal advice rendered to -2- Ii II II " Plaintiffs Michael J. Frey and Darlien Frey and thaI they suffered damages as a result of the negligence. See Exhibit. A." 1 " i I' :1 II i, il il II I: II il 'I " ! 10. Plaintiffs further allege that Defendants Etzweiler '" Radebach and Robert G, Radebach breached their contact when they failed to properly advise the Plaintiffs as to the proper probate of the Estate of John W, Frey, See Exhibit "A." II. Defendants Etzweiler & Radebach and Robert G. Radebach respectfully submit that the facts pled by Plaintiffs do not support a claim for punitive damages. 12, Because Plaintiffs have failed to alleged sufficient facts to support a potential claim for punitive damages. the claim for punitive damages contained in the Second Amended Complaint should be dismissed. See Pa,R.Civ.P. 1028(a)(4). I II II I II I I , ,j i: d i! I' Ii II II 'I " II II ii " " !I !I :1 , 13, Pennsylvania is a fact-pleading state. See Pa.R,Civ.P. 1019(a). 14, Under the Pennsylvania system of pleading, the pleader must define the issues; every act or performance essential to that end must be set forth in the complaint. Miketic. M.D., v. Baron, M.D.. et aI., 450 Pa. Super. 91, 675 A,2d 324 (1996). 15. The question presented by the demurrer pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(4) is whether, on the facts averred, the law says with certainty thaI no recovery is possible, Moser v, HeislWld, 545 Pa. 554,559,681 A.2d 1322, 1325 (1996) (quoting Vallimo v. Lower Bucks Hospital,lnc., 502 Pa. 241, 244. 465 A.2d 1231, 1232.33 (1983)), 16. The Pennsylvania courts have adopted the principles of the Restatement (Second) of Torts ~908(2), which provides as follows: .. , -3- II I, II " !i ii !: ~ , . .~....- ~- --,... . - ' (2) Punitive damages may be awarded for conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others. In assessing punitive damages. the trier of fact can properly consider the character of the defendant's act, the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause and the wealth of the defendant. See Martin v. Johns-Manville Corp., 508 Pa. 154.494 A.2d 1088 (1985) (adopting Restatement (Second) of Torts 908(2)). 17, Evil motive (or willful conduct) has been inlerpreted to mean that the actor desired to bring about the result that followed or at least that he was aware that it was substantially certain to ensue, This, of course, would necessarily entail actual prior knowledge of the trespasser's peril. Evans v. Philadelphia Transportation Co.. 418 Pa. 567, 574, 212 A.2d 440, 443 (1965), 18. Reckless indifference to the rights of others has been interpreted to mean that the "actor has intentionally done an act of an unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it. and so great as to make it highly probable that harm would follow." Smith v. Brown, 283 Pa, Super. 116, 120,423 A.2d 743, 745 (1980). 19, For an award of punitive damages. there must be some evidence that the defendant himself actually realized the risk and acted in conscious disregard or indifference to it. Martin v. Johns-Manville Corp., 508 Pa, 154, 169,494 A.2d 1088, 1096 (1985). 20. It is not sufficient for the defendant to know circumstances that a reasonable person would realize are highly dangerous. ld. -4- ii :1 Ii ,I ;I I I II !I il II I, II II II II II I' CERTIFICATE OF SERVICE I. STEVEN D. COSTEllO, ESQUIRE. attorney for Defendants, ETZWEllER & ASSOCIATES, /IkIa ETZWEllER & RADEBACH, and ROBERT G. RADEBACH, hereby state that a true and correct copy of the foregoing document(s), sent by first-class mail, postage prepaid on the date set forth below, was served upon the following individual(s): Jacqueline M. Verney, Esquire 44 South Hanover Street Carlisle, PA 17013 II I, I i I I POST & SCHfll, P.~~ " '1== B' , , EVEN D. COSTELLO ID #37288 SANDRA L. FOSTER ID #73234 iJ il !I " II ii il 'I il II I, 'I 'I I, Ii 'I I. II 11 II :1 II II II Ii ,I 'I " Date: d. (("( {ll { I " .... SHERIFF'S RETURN. REGULA!i CASE NO: 1997-06091 P .':jt.IHONl'JEALTll OF PENNSYLVANIA: 'Oi)UNTY OF CCM8ERLANCl FREY MICHAEL J ET AL ~.._---- VS ETZWEII.ER & RADEBACH FoT AI. DAVID MCKINNEY , Sheriff or Deputy Sheriff of Curnbedand County, pennsyl vania, who being duly sworn according to law, .1 says, the within WRIT OF SUMMONS FREY RICHARD was served upon the ADD'TI. DEFEND . at 0015:39 HOURS, on the 1st day of March at 317 STATE ST WEST FAIRVIEW. PA 17025 RICHARD FRY , 2001 by handing to a true and attested copy of WRIT OF SUMMONS together with TO JO T NED ADOr.' DE F'ENDANT' S and at the same time directing His attention to the contents thereof, Sheriff's Costs: Docketing Service Affidavit Surcharge 18.00 9.30 .00 10.00 .00 37.30 So A;;~~~/ R. Thomas Kline 03/02/2001 POST & SCHELL By: ft~~~~A" Deputy Sherif Sworn and Subscribed to before me this j'E!:: day of ~)yLLuL JL>t! I A. D. (,t~. 0 IJ~ ~ othonotary . POST'" SCHEll.. P,C, BY: STEVEN D. COSTELLO 1.0, /I 37288 1857 WILLIAM PENN WAY P.O, BOX 10248 LANC' ASTER. PA 17605-0248 (717) 291-4532 MICHAEL J. FREY. and DARLlEN FREY, Coexecutors ofthc Estatc of John W. Frcy, Plainti ffs, ATTORNEYS FOR DEFENDANTS ETZWEILER & ASSOCIATES, f!kIa ETZWEILER & RADEBACH, and ROBERT G. RADEBACH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA vs. CIVIL ACTION - LAW ETZWE1LER & RADEBACH and ROBERT G, RADEBACH, No. 97-6091 Dcfcndants. JURY TRIAL DEMANDED PRAECIPE FOR WRIT TO JOIN ADDITIONAL DEFENDANT TO: RICHARD H. FREY 317 Statc Street West Fairview, PA 17025 You arc notilicd that DEFENDANTS ETZWEILER & ASSOCIATES, f!kIa ETZWEILER & RADEBACH. and ROBERT G. RADEBACH havc joincd you as an Additional Defendant in this action, which you are required to defend. Datc: ~J, ;<:( "::l.o~1 I SEAL OF COURT: P~h,"'~~ ~ c, ( " ~:. -" ..,., q q:;, , :'-,i '. ~.' " I'. r~l r' ~ , ., , r- ) :r,o , . :.n :) r;l -. - , Cumberland County, ss: The Commonwealth of Pennsylvania to Richard H. Frey (Name of Addidonal Defendantl You are notified that Ertzweiler & Associates, f/k/a Ertzweiler & (Name (I) 0/ Delendant (I) i Radebach. and Robe~ G. Rade~__ has (have) joined you as an additional defendant in this action, which you arc reo quired to defend. Date Februa~. 2001 --t1VA~ <.By 4~g PZf07AOt.J--- (SEAL) Richard H, Frey 317 State Street West Fairview, PA 17025 .. __r'~ . . H-.Jf'O....l/l g~ ~ W :;a ~ ~ I .,. 't-' . en fa' ~ ..... t:l-.J OU1~ -.J [ . I .-..J ~ .~ ~~ l/l '" ~. &r -.J ~ rt ..... t:l 8 ..... J, WI (p I-" it I~ .... rt ,,~t1 t-' r-o ' n> ~ ... 0 NUl. O~.~ l/l .., . '" <XlW "'~ ..... ~ <Xl"':lil'" zg '~ ffi ... ~ <Xl",rt @ &' 0 n .... ..... ~ Cl'n> ~...... '< ~. -.J ".... :lil rt ~ ~ ~ '" :J.... ~ .... o 0 00 U1 ;€' ~ ~ ~E ~~ > -.J 9- t;l I ... 0 I e, '" &r <Xl , ~t::I 8' U1 8. it 1 !. :;a 0 > ~~ t f[ .... - ~ ~ ~ r ~ !I , .. p ~ . ~ j g- 9- -- __ __~>O....~..' _ MICHAEL J. FREY and DARLlEN FREY, Co-executors of the Estate of John W. Frey, PLAINTIFFS V. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA ETZWEILER & RADEBACH and ROBERT G. RADEBACH, DEFENDANTS : 97-6091 CIVIL TERM BEFORE BAYLEY. J. AND GUIDO, J, ORDER OF COURT AND NOW, this 2-( day of March, 2001, the preliminary objection of defendants to plaintiffs' second amended complaint, IS GRANTED. The claim of plaintiffs in their second amended complaint for punitive damages, IS DISMISSED. Jacqueline M. Verney, Esquire For Plaintiffs Edgar B. Bayley, J. / ~, ,,~ Cb,O l~ ,~Y~JS () ~" Stephen D. Costello, Esquire For Defendants :saa ", \ I, ~" ',1 \:1 J C'...\~ .17'! .1 ,.....1\..,..1,1._.... ,l..li'f((; ., \~"'!i[\Q .' .'- ,\' :,':' " '0 \0 ; -.",.' , lA\\'(lfflU!:i POST & SCHELL, P.Co 18;; \\'llllMl vtNN W^~ . 'ilJ1Tf 1111 . ;'( I f\ll\ IllHli lA~(^~liM.. rlNN')'I\'..\NVlI~hlr..n~"d (;p'\!'ll..t'iJ! '''''_;''__'''''''''~,,,'4;~#o';';;'''--'~-~''-:: ,. ,#0 . , . ... I I . I .~..,. . ,\ 4:. ( . .. " ~ \ ;0, , \ ~- ...:o.-~-~ !I II ,I I Ii II :i I I II POST" SCtlELL, P,C. BY: STEVEN D. COSTELLO J.[), /I 37288 IK~7 WILLIAM PENN WAY 1'.0. BOX 10248 LANCASTER, PA 17605-0248 (717) 2lJl-4S32 MICIIAEL J. FREY, and DARLIEN FREY, Coexecutors of the Estate of John W. Frey, Plaintiffs. ATTORNEYS FOR DEFENDANT ETZWEILER & ASSOCIATES, fIkIa ETZWEILER & RADEBACH, and ROBERT G. RADEBACH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW I' II II I' ,I i' ETZWEILER & RADEBACH and ROBERT G. RADEBACH, No. 97-6091 Defendants. JURY TRIAL DEMANDED i II I' !I i' II if ANSWER OF DEFENDANTS' ETZWEILER '" ASSOCIATES, FORMERLY KNOWN AS ETZWEILER '" RADEBACH AND ROBERT G. RADEBACH TO PLAINTIFFS' SECOND AMENDED COMPLAINT Defcndants, EtlWci ler & Associatcs, formerly known as Etzweilcr & Radebach, ("Answering Dcfcndantsn) through thcir counsel, Post & Schell, P.C. hcreby respond to Plaintiffs' Second Amcnded Complaint in accordance wilh the numbered paragraphs thereof. II I. After reasonable investigation, Answering Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph and, Ii accordingly, deny the same and demand strict proof thereof at trial, if relevant. I I " , I II i I 2. After reasonable investigation, Answering Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph and, accordingly. deny the swne and demand strict proof thereof at trial, ifrelevant. 3. Denied as stated. Answering Defendants were formerly known as Etzweiler & Radebach, which formerly operated as a law practice in Pennsylvania and was located at 105 North Front Street, Harrisburg. 4. Admitted. 5. It is admitted that until the dissolution ofEtzweiler & Radebach, Robert G. Radebach, Esquire, was employed with the former firm of Etzweiler & Radebach. All other allegations are denied. 6. It is admitted that Plaintiffs' were appointed co-executors of the Estate of John W. Frey, who died testate on Novembcr 25, 1991, on or about December 4, 1991. The remaining allegations are denied. 7, Denied as stated. It is admitted that on or about December 4, 1991, Robert G. Radebach, Esquire, was retained to assist Plaintiffs in settling the disputes of the Estate. Etzweiler & Radebach received $5,221.28 for a portion of the legal services performed. All remaining allegations are denied. -2- I, il I . I .1 'I II deny each and every averment of negligence and/or gross negligence and actionable omissions, actions, and/or errors. 19. The averments sct forth in this paragraph are erroneous conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure and they accordingly are deemed denied and proof thereof is demanded. By way of further response, Answering Defendants deny each and every averment of actionable conduct, omissicns and errors and deny the allegations of willful, wanton, malicious and outrageous and reckless disregard and indifference and further deny the resulting damages and averments of punitive damages. 20. Denied. The averments set forth in this paragraph are erroneous conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure and they accordingly are deemed denied and proof thereof is demanded. By way of further response, I I i I I II I ,I II II I' .1 " !I II I II Ii :1 Ii Answering Defendants deny all allegations of negligence, gross negligence, willful, wanton, malicious, outrageous and reckless conduct and further deny the resulting damages. COUNT I - NEGLIGENCE PLAINTIFFS vs. ROBERTG. RADEBACH 21. Answering Defendants incorporate herein by reference their responses to Paragraphs 1-20 to Plaintiffs' Complaint as though same were fully set forth herein. 22. Denied as stated. 11 is admitted that Plainti ITs retained Robert G. Radebach, Esquire, to assist with the settlement of the Estate of John W. Frey. The remaining allegations are denied. -5- I I I I I d i! Ii I i j, I 23. Denied. The allegations set forth in this paragraph are erroneous conclusions of law to which no responsc is required undcr thc Pennsylvania Rules of Civil Procedure and proof thereof is demanded. By way of further answer, Defendants deny all allcgations of an alleged breach of a duty to Plaintiffs, Ii ;I 'I 24. Denied. The averments set forth in this paragraph are erroneous conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. By way of further answer, the Court's Opinion and Order are separate documents which speak for themselves. 25. Dcnied, The averments of this paragraph arc erroneous conclusions of law to which I I I I I I no rcsponse is required and strict proofthcreofis dcmanded. By way of further answer, the Court's Opinion and Order are separate documents which speak for themsclves. 26. Denied. Thc avermcnts of this paragraph arc erroneous conclusions of law to which no response is required under thc Pennsylvania Rules of Civil Proccdure and they accordingly are deemed dcnied and proof thereof is demanded. By way of further response, Defendant denies each I 'I I I I II and every averment of causation and resulting damages set forth in this paragraph and, after reasonable investigation. currently is without knowledge or information suflicient to form a belief as to the nature and extent of Plaintiffs' alleged and, accordingly, same are denied and proof thereof is demanded. 27. Denied. The averments of this paragraph arc erroneous conclusions of law to which no rcsponse is rcquircd under the Pennsylvania Rules of Civil Procedure and they accordingly are -6- I I II Ii I I II deemed denied and proof thereof is demanded. By way of further response, Defendant denies each and every averment of causation and resulting damages set forth in this paragraph and, after reasonable investigation, currently is without knowledge or information sufficient to form a belief as to the nature and extent of Plaintiffs' alleged and, accordingly, ,~ame are dr.nied and proof thereof is demanded. 28. Denied. The averments of this paragraph are erroneous conclusions oflaw to which no response is required under the Pennsylvania Rules of Civil Procedure and they accordingly are deemed denied and proof thereof is demanded. By way of further response, Defendant denies each and every averment of negligence, causation and resulting damages set forth in this paragraph and, after reasonable investigation, currently is without knowledge or information sufficient to form a belief as to the nature and extent of Plaintiffs' alleged and, accordingly, same are denied and proof thereof is demanded. 29. Denied. This averment is an erroneous conclusion of law to which no response is required and it accordingly is deemed denied and proof thereof is demanded. By way of further response, all allegations of negligence, causation and resulting damages are denied. WHEREFORE, Answering Defendants demand judgment in their favor and against Plaintiffs. Further: a. judgment is demanded in favor of Answering Defendants and against III Plaintiffs; I I -7- II I, I I , ! il II , I I I I I I b. judgment is demanded in favor of Answering Defendants and against Plaintiffs as Plaintiffs have failed to sct forth a legal basis to recoup previously paid legal fees; c. judgment is demanded in favor of Answering Defendants and against Plaintiffs; d. judgment is demanded in favor of Answering Defendants and against Plaintiffs as case law does not support the award oflegal fees; e, judgment is demandcd in favor of Answering Defendants and against Plaintiffs as there is no legal basis to award attorncy's fees; f. judgment is demanded in favor of Answering Defendants and against Plaintiffs as exemplary damagcs and punitive damages are not warranted in the instant litigation; g, judgment is demanded in favor of Answering Defendants and against Plaintiffs is demanded; h. judgment is demanded in favor of Answering Defendants and against Plaintiffs; COUNT 11- BREACH OF CONTRACT PLAINTIFFS n. ROBERT G. RADEBACH 30. Answering Defendants incorporate hcrein by reference their responses to Paragraphs 1-29 to Plaintiffs' Complaint as though same were fully set forth herein. -8- II I Ii 31. Denied. Defendant Radebach was retained by Plaintiffs to assist in the settlement of the Estate. Answering Defendants were not retained or hired to perform any specific actions. All other allegations are denied. 32. Denied. The averments set forth in this paragraph are erroneous conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure and they accordingly are deemed denied and proof thereof is demanded. By way of further response, Defendants deny each and every averment of actionable conduct, proximate causation, breach of contract and resulting damages set forth in these paragraphs. a. Denied; b. Denied; c. Denied; d. Denied. WHEREFORE, Answering Defendants demand Judgment in their favor and against Plaintiffs: a. judgment is demanded in favor of Answering Defendants and against Plainti ffs; b. judgment is demanded in favor of Answering Defendants and against Plaintiffs as Plaintiffs have failed to set forth a legal basis to recoup previously paid legal fees; -9- I! I ii I c. judgment is demanded in favor of Answering Defendants and against i I ,I II I Plaintiffs; d. judgment is dcmanded in favor of Answering Dcfcndants and against Plaintiffs as case law does not support thc award of legal fees; e. judgment is demanded in favor of Answering Defendants and against Plaintiffs as there is no legal basis to award attorney's fees; f. judgment is dcmanded in favor of Answcring Dcfendants and against " I' Plaintiffs as exemplary damages and punitive damages are not warranted in the instant litigation; g. judgment is demanded in favor of Answcring Defendants and against Plaintiffs is demanded; h. judgment is demanded in favor of Answcring Defendants and against Plaintiffs; COUNT III - NEGLIGENCE PLAINTIFFS n. ETZWEILER "'. RADEBACH 33. Answering Defcndants incorporate herein by reference their responses to Paragraphs 1-32 to Plaintiffs' Complaint as though same were fully set forth herein. 34. Denied. The averments set forth in this paragraph are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure and they accordingly are Ii decmed denied and proof thereof is demandcd. 'I I i -10- II II II II Ii II I , 35. Denied. The averments set forth in this paragraph are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure and they accordingly are deemcd denied and proof thereof is demanded. 36. Denied. The averments set forth in this paragraph are conclusions of law to which I 1 II , I I no response is requircd under the Pennsylvania Rules of Civil Proccdure and they accordingly are deemed denied and proof thereof is demanded. 37. Denied. The avermcnts set forth in this paragraph are conclusions oflaw to which no response is required under thc Pennsylvania Rules of Civil Procedure and they accordingly are deemed denied and proof thereof is demanded. 38. Denied. The averments set forth in this paragraph are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure and they accordingly are dcemcd denied and proofthereof is demanded. WHEREFORE, Answering Defendants demand Judgment in their favor and against Plaintiffs: a. I, Plaintiffs; I b. judgment is dcmanded in favor of Answering Defendants and against judgment is demanded in favor of Answcring Defendants and against Plaintiffs as Plaintiffs have failed to set forth a legal basis to recoup previously paid legal fees; -11- I 'I Ii 'I Ii "! I , il [I I' II II I c. judgment is demanded in favor of Answering Defendants and against Plaintiffs; d. judgment is demanded in favor of Answering Defendants and against Plaintiffs as case law does not support the award of legal fees; e. judgment is dl.manded in favor of Answering Defendants and against Plaintiffs as there is no legal basis to award attorney's fees; f. judgment is demanded in favor of Answering Defendants and against Plaintiffs as exemplary damages and punitive damages are not warranted in the instant litigation; g. judgment is demanded in favor of Answering Defendants and against Plaintiffs is demanded; h. judgment is demanded in favor of Answering Defendants and against Plainti ffs; COUNT IV. BREACH OF CONTRACT PLAINTIFFS' VS. ETZWEILER "'. RADEBACH 39. Answering Defendants incorporate herein by refercnce their responses to Paragraphs 1-38 to Plaintiffs' Complaint as though same were fully set forth hcrein. 40. Denicd. Answering Defendants were rctained to assist in the scttlement of the Estate. All other allegations are denied. 41. Denied. The allegations set forth in this paragraph are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure and they accordingly are -12- , ii II II II dccmed denied and proof thereof is demanded. By way of further response, Answering Defendants deny each and every averment of actionable conduct, acts, errors and omissions and proximate causation and alleged resulting dwnages thereof. 42. Denied. The avcrments set forth in this paragraph are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure and they accordingly are decmed denied and proof thereof is demanded. WHEREFORE, Answering Defendants demand Judgment in their favor and against Plaintiffs: a. judgment is demanded in favor of Ar.swering Defendants and against Plaintiffs; b. judgment is demanded in favor of Answering Defendants and against Plaintiffs as Plaintiffs have failed to set forth a legal basis to recoup previously paid legal fees; c. judgment is demanded in favor of Answering Defendants and against Plainti ffs; d. judgment is demanded in favor of Answering Defendants and against Plainti ffs as case law does not support the award oflegal fees; I I II e. judgment is demanded in favor of Answering Defendants and against l~'" Plaintiffs as there is no legal basis to award attorney's fees; -13- II I I I , f. judgment is demanded in favor of Answering Defendants and against Plaintiffs as exemplary damages and punitive damages are not warranted in the instant litigation; g. judgment is demanded in favor of Answering Defendants and against Plaintiffs is demanded; h. judgment is demanded in favor of Answering Defendants and against Plaintiffs; NEW MATTER 43. The responses contained in paragraphs 1-42 of Defendants' Answer are incorporated herein by reference. 44. The Plaintiffs have failed to state a cause of action upon which relief can be granted. 45. Answering Defendants were not negligent. 46. Any acts or omissions of Answering Defendants alleged to constitute negligence, carelessness or recklessness were not substantial causes or factors of this incident identified in Plaintiffs' Complaint and/or did not result in the damages alleged by the Plaintiffs. 47. The incident and/or damages described in Plaintiffs' Complaint may have been caused or contributed to by the Plaintiffs. 48. If Plaintiffs' sustained the damages alleged, which damages are specifically denied, said damages may have been the result of the negligent or careless acts and/or omissions ofPlaintitrs and/or other persons and/or entities over whom Answering Defendants exercised no control. I i " II II -14- 49. The negligent acts or omissions of other individuals and/or entities may have constituted intervcning superseding causes of the damages alleged to have been sustained by the Plaintiffs. Furthermore, Answering Defendants had no control over such acts or omissions and such acts or omissions were not due to or caused by default. lack of care, negligence or breach of any duty by Answering Defendants. 50. The incident and/or damages alleged to have been sustained by thc Plaintiffs wcrc not proximately caused by Answering Defendants. 51. Plaintiffs' claims may be barred by the Doctrinc of Assumption ofthc Risk. 52. Plaintiffs' claims may be barred by thc Doctrinc of Contributory Negligence. 53. Plaintiffs' claims may be barred or reduced by the provisions of the Pennsylvania Comparative Negligence Act, 42 Pa.C.S,A. ~7201 et seq., the relevant portions of which are incorporated herein by reference as though same were more fully set forth at length herein. 54. At all times material hereto, Defendants exercised ordinary knowledge, skill and care I I I " that would normally be exercised by memberr of the profession under same or similar circumstances. 55. Plaintiffs failed to mitigate any damages allegedly sustained. 56. The Plaintiffs' claims and/or request for damages is barred or limited by and/or precluded by the Doctrine of res Judicata and/or Collateral Estoppel. 57. If there is a judicial determination that Pa. R.C.P. 238 is unconstitutional, said constitutionality being expressly challenged is a violation of the due process and thc equal protcction -15- clauses of the 14th Amendment of the United States Constitution; 42 U.S.C. ~1983; Article I, Section 1,6,11,26; and Article IV, Section IO(c) of the Pennsylvania Constitution, then payment of interest shall be suspended for any period of delay not occasioned by Answering Defendants. , II i! Ii II ii I! I 58. The Plaintiffs' claims may be burred by the Doctrine of Release. 59. Plaintiffs' claims may be barred by the applicable Statute of Limitations. WHEREFORE, Answering Defendants respectfully request thaI Plaintiffs' Complaint be dismissed in its entirety. POST'" SCHELL, P,C, II 'I II II I I, I I' i! Date: ~2.(,/ 01 I jl Ii I -16- I I I il I! !! ii , ,i VERlFICA TION I, ANNE E. ZERBE. ESQUIRE, hereby state that I wn an attorney for DEFENDANTS. ETZWEILER & ASSOCIATES, flk/a ETZWEILER & RADEBACH, and ROBERT G. RADEBACH, in this action and verify that the statements made in the foregoing document. are true and correct to the best of his knowledge, information and belief. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa.C.S., ~4904, relating to the unsworn falsilication to authorities. POST & SCHELL, P.C. By: - / Date: ...!j /1/ ft J 01 I I !I ;j I I I I I :1 II : CERTIFICATE OF SERVICE I, STEVEN D. COSTELLO. ESQUIRE, allomey for Defendants, ETZWEILER & ASSOCIATES, /lkia ETZWEILER & RADEBACH, and ROBERT G. RADEBACH, hereby state that a true and correct copy of the foregoing document(s), sent by Iirst-class mail, postage prepaid on the date set forth below, was served upon the following individual(s): Jacqueline M. Verney, Esquire 44 South Hanover Street Carlisle, P A 17013 POST & SCHELL, P.C. By: STE N D. ID #37288 ANNE E. ZERBE ID #79151 Date:~ il Ii 'I II !i ,; n n ., c , :'-; 1~ .,.~r:" ., n., - J -, ;r.l" "" (.j ,. _l r' :.-..... ~.. :i~ ......, .\ -- ) '..-. ~' , ~) \1 L. . " . ' ~ .,.. :;j (.,) ..... 'i 1.\wuHlll~ POST & SCHELL, P.C. 11\',1 Wlllt"'''' t't...~ W~W. ,HIt 1111 _I'U lJ4 "I 1o~:11I 1.\!Il(,''1UI( "I",""'1H\'\!'<I'\ I ~l~), ll: III 1'"\":'11 r,\: .f:"<O-. .. . ,~.___.T>',_'''''';_''''''''' '~""""""'.c..o"'~"""'~"-<''"''"''~' ,- .., ,~. ;;..-.,,,..'..;..,;,;.;;i~,,,,,,"4,::;;...~,*,i; ....~ -'"'""" " ... . ~ ... " , , , , , ~- ;..;....::..-~..,..-- :-----.~~:..:...:. -".. '). f i i \ \ ! POST'" scm:l.I., P.c. BY: STEVEN [) COSTELl.O LD. Ii J 7288 IllS7 \VILLlAM PENN WAY PO, BOX 10248 LANCASTER, PA 17605-0248 (717) 291-4532 MICHAEL J. FREY, and DARLlEN FREY, Coexecutors of the Estate of John W, Frey. Plaintiffs, ATTORNEYS FOR DEFENDANTS ETZWEILER & ASSOCIATES. f!k/a ETZWEILER & RADEBACII, anu ROBERT G. RADEBACII IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA VS, CIVIL ACTION - LAW ETZWEILER & RADEBACH anu ROBERT G, RADEBACH, No. 97-6091 Defendants, JURY TRIAL DEMANDED PRAECIPE TO SUBSTITUTE VERIFICATIONS TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Kindly substitute the Verification of Defendants, ETZWEILER & ASSOCIATES, ti'kJa ETZWEILER & RADEBACH, and ROBERT G. RADEBACH, for the Verification of Attorney Zerbe to the Answer with New Matter to Plaintiffs' Complaint which was filed in the above- captioned matter. POST & SCHELL, P.C. Date:~ VERIFICATION I, Earl Richard Etzweiler, hereby verify that the statements made in the foregoing pleading are true and correct to the best of my knowledge, infonnation and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C,S.A. ~4904 relating to unsworn falsification to authorities, Dated: April , '- , 200 I rD 17./.7' .' i. -c.' _/) ~4-~ ~~ Earl Richard Etzweil ,Esquire Re: hey II II I, d Ii Ii VERIFICATION I, Robert G. Radebach, Esquire, hcreby verify that the statements made in the foregoing ,! II pleading are true and correct to the best of my knowledge, information and belief. The undersigned understands that the statements thcrein are made subject to the penalties of I R PR. e.s., Sf'Ction 4909, relating to unsworn falsification to authorities. I, I I ) ) .-' 7 14!t:'- I: I DATE: 4,Qu ~ d?J.1tC1 , I I II II II I: II II " !i CERTIFICATE OF SERVICE I. STEVEN 0, COSTELLO, ESQUIRE, attomcy for Dcfendants, ETZWEILER & ASSOC'IA TES, flk/a ETZWEILER & RADEBAC'II, and ROBERT G. RADEBACH. hcrcby statc that a truc and correct copy of the forcgoing documcnt(s), scnt by Iirst-class mail, postagc prepaid on thc date set forth below, was scrved upon thc following individual(s): Jacquclinc M. Vcmcy, Esquire 44 South Hanovcr Street Carlisle. PA 17013 POST & SCHELL. P.C. By: Date:~ . n f-' ~~~ . -rJi (0.1' .. , : I ::::,1 r t~' L. -. r.; 1: .-:, ~; k.. . , "'"'.\. (-~c: ~~) ., ......c: ~ '. (Jl ':":1 -..... II 'k il ii i; POST'" SCHEU., P.c. (W: STEVEN D COSTELLO LD. # 37288 1857 WILLIAM PENN WAY P.O, BOX ION8 LANCASTER, PA 17605-0248 (717) 291-4532 MICHAEL 1. FREY. and DARLlEN FREY. Coexecutors ofthc Estate of John W. Frey, Plaintiffs, ATTORNEYS FOR DEFENDANT ETZWEILER & ASSOCIATES, f/kJa ETZWEILER & RADEBACH, and ROBERT G, RADEBACH , :1 ii :[ ., 'I Ii i' II I. 'I Ii ,. iI !i ii Ii II Ii I :i II I II II il II II h I I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW ETZWEILER & RADEBACH and ROBERT G. RADEBACH, No, 97-6091 Defcndants. JURY TRIAL DEMANDED PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please Iisllhe within maner for Ihe nexl: o Pre,Trial Argument Court -,( Argument Court I. Slate matter to be argued (i.e.. plaintiffs motion for new trial; defendant's demurrer to complaint, etc,): Motion for Judgment on the Pleadings of Defendants. ,j " Ii II Ii il II II I I, I I I II II II 'I II II " II II II j1 II 'I 2. Identify counsel who will argue case: (a) for plaintiff: Jacqueline M, Verney, Esquire Address: 44 South Hanover Strcet, Carlisle, P A 17013 (h) for defendanl: Anne E. Zerbe, Esquire Addrcss: 1857 William Penn Way, P.O. Box 10248, Lancaster, PA 17605-0248 3. I will notify all parties in writing within two days that this case has been listed for argument. 4, Argument Court Date: October 4. 200 I Call of Argument List Date: September 24, 200 I Datc: ~/I:J 1_ By: . -. ~. ("I L. Ul q . I I _.~ I r: ! f"- "; :(' -f ~':. ~) , ~_. ^'.~.~-,'." -~~- II" . I: !I I' .1 i, II It! ,)[;) tlli '''''' hIJ :')Ulv/ POST'" SCHELL, P.C, BY: STEVEN D, COSTELLO 1.0, # 37288 1857 WILLIAM PENN WAY P,O, BOX 10248 LANCASTER. PA 17605-0248 (717) 291-4532 MICHAEL J. FREY, and DARLlEN FREY, Coexecutor~ of the Estate of John W. Frey, Plaintiffs, ATTORNEYS FOR DEFENDANT ETZWEILER & ASSOCIATES, flk/a ETZWEILER & RADEBACH, and ROBERT G, RADEBACH vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW ETZWEILER & RADEBACH and ROBERT G. RADEBACH, No. 97-6091 Defendants. JURY TR,lAL DEMANDED BRIEF IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS OF DEFENDANTS ETZWEILER & ASSOCIATES, (/k/a F.TZWEII.ER & RAnRRACH. ANn RORRRT G. RADRRACH I. ST A TRMENT OF FACTS The instant legal malpractice action alleges that Defendants, Etzweiler & Associates, flk/a Etzweiler & Radebach, and Robert G, Radebach, failed to properly manage and/or administer the Estate of John W. Frey. On or about November 5, 1997, Plaintiffs, the former coexecutors ofthe I Estate of John W. Frey, initiated this malpractice action by filing a Writ of Summons with the Court of Common Pleas of Cumberland County, Plaintiffs, the former coexecutors of the Estate, subsequently filed a Complaint in the Court of Common Pleas of Cumberland County on October 30,2000. A series of Preliminary Objections and Amended Complaints were filed, with the final Second Amended Complaint being filed on February 6, 2001. In the Second Amended Complaint, Plaintiffs allege that they were duly '" ) .--- ~ _._~ "'- ---...- --- ... - - -~ - ... ..' . the formcr coexecutors, additional legal fees to the Estate of John W. Frey in the amount of S 14,922.00 and additional administration fees incurred by the Estate of John W. Frey in the amount 01'$4,000,98 and the loss of Darlien Frey's executor's fee in the amount ofS2,61O.60. (Sce, Exhibit "A.") After Plaintiffs were removed as coexecutors of the Estate, they subsequently filed a Writ of Summons against Defendants on November 5, 1997. (See, Docket Entries attached hereto as Exhibit"C.") Both Defendants were served with the Writ of Summons in November of 1997. (See. Exhibit ne.") At the time Plaintiffs commenced the instant malpractice litigation, they were no longer serving as the coexecutors of the Estate of John W. Frey. , Ruth Frey-Lupfer was subsequently appointed the personal representative of the Estate on February 4, 1999. (See, Opinion and Order of President Judge Hoffer dated November 1,2000, allached hereto as Exhibit "Dn). When Plaintiffs commenced the above litigation in November of 1997, no one was serving as the personal representative of the Estate. despite legal requirements to the contrary. On June 26, 1997, Plaintiffs were represented by William C. Vohs. Esquire, with respect to the Plaintiffs' claims of professional malpractice. (See, correspondence dated June 26, , 1997, allached hereto as Exhibit "E,") Plaintiffs' claims in the instant litigation are essentially claims by the Estate against the Defendants for the alleged failure to properly administrate and probate the Estate. However, neither the Estate nor a legally recognized representative of the Estate brought tl>is action. In view of this. the action is fatally defective and must be dismissed. .3- wcrc no longcr serving as personal rcpresentatives of the Estate, (See, Exhibit "B"). The pleadings , ,. " II of rccord indicate that the Plaintiffs' claims are based upon the alleged malpractice in the probate Ii " ii and adminislration of the Estatc. Plaintiffs were on notice of the alleged malpractice claims on May , Ii 2. 19%, when this Honorable Court issued an Order and Opinion in the underlying Orphan's Court " i' " action, (See, Exhibit "B"). Thus. whcre the Estate sought to enforce claims against Defendant, the ! , !i I' Ii I , I I 1 Ii I ~ " Estate's claims must be brought by the personal representative of the Estate. Myers v Fstate of .w.ilk..s, 440 Pa,Super. 176.655 A.2d 176 (1995). Accordingly, where no personal representative was appointed at the time Plaintiffs filed their complaint, Plaintiffs' remedy was to secure the ! I I I ! i i i ! ~ ~ appointment of a personal representative by applying to the Reg!ster of Wills for the issuance of lettcrs testamentary, or Icllers of administration. Nelson v Fstate of Jonathan Mas,ey. 455 Pa,Super. Ii " i ~ I' I II Ii I I , I ! 'I I' I I: I 7 \, 686 A.2d 1350 (1996); Cl/lOcat1/1' denied. 548 Pa. 637, 694 A.2d 622 (1997), In the instant matter, the personal representative of the Estate, as a party Plaintiff, was the proper party to commerce the above malpractice litigation for the damages allegedly sustained by the Estate. Where the action was commenced by former coexecutors of the Estate without naming the personal representative, or the Estate, as Plaintiffs, the action is a nullity. The instant litigation cannot be prcfsecuted by the former coexecutors who had been removed as coexecutors of the Estate 18 months prior to the commencement of the instant litigation. Further, once the subsequent i I I Ii Ii Ii Ii " Ii " I I personal representative of the Estate was appointcd on February 4, 1999, the personal representative of the Estate was the proper party to commcnce the above litigation for damages allegedly sustained I t I , in the administration and probate of the Estate. ;.. -6- I' I' ,I Ii II Ii II 1'1 I II I, II II I' I' j! Ii " However, the above litigation was not anI ended to include the proper party, nor was litigation Iiled by the proper party Plaintiff, For these reasons, Defendants respectfully request that their Motion for Judgment on the Pleadings be granted, IV. CONCl.IlSION For the reasons set forth above, Defendants, Etzweiler & Associates, fIkIa Etzweiler & Radebach, and Robert G, Radebach respectfully request that this Honorable court grant their Motion for Judgment on the Pleadings in their favor and against Plaintiffs. II Ii S 10 7288 ANNE E. ZERBE 10#79151 Attorney for Defendants Date: , .7- . Exhibit A -'.... --- -......... 1 MICHAEL J. FREY, and DARLIEN FREY, Co-nc\:utors of the Estate of John W, Frey, Plaintiffs IN TilE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA CIVIL ACTION - LAW NO. 97.6091 CIVIL TERM v, ETZWEILER & RADEBAClI and: JURY TRIAL DEMANDED ROBERT G, RADEDACII, Defendants NOTICE YOU HAVE BEEN SUED IN COURT, If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice nee served, by entering a wrillen appearance personally or by attorney and filing in writing \\ilh the court your defenses or objections tot he claims set . forth against you. You nee warned that if you fail to do so the case may proceed without you and ajudgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD T AKL THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TE~EPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP, Cumberland County Bne Association 2 Liberty A venue Carlisle, PA 17013 (717) 249-3166 TRUE copy FROM RECORD 1ft TIItimOllY whlIflOf, I here un10 lilt ffPI ~ and till ... 01 said Cf};;a1 Car1\a11. Pi. ~ u:;Zt~?~ h~~ ProlMnlltllrv %.v;. y . acq line M. Verney, Esqulrd23 167 44 South Hanover Slreet Carlisle, PA 17013 (7t7) 243-9190 w.~ MICHAEL J, FREY, and DARLIEN FREY, Co-executon of the Estate of John W. Frey, Plaintiffs : IN TilE COUnT OF COMMON PLEAS OF : CUMBERLAND COUNTY,PENNSYLV ANIA : CIVIL ACTION - LAW : NO. 97-6091 CIVIL TERM v, ETZWEILER'" RADEDACH and: JURY TRIAL DEMANDED ROBERT G. RADEBACI-I, Defendants SECOND AMENDED COMPLAINT AND NOW, this day of February, 2001, comes the Plaintiffs, Michacl J. Frcy and Darlien Frey, by and through their attorney, Jacqucline M. Vcmey, Esquire, and avers in support of its second amended complaint against Defendants as follows: 1. Plaintiff, Michael J. Frey, is an adult individual residing at 454 High Street, West Fairview, Cumberland County, Pennsylvania, 17025. 2. Plaintiff, Darlien Frey, is an adult individual residing at 401 Front Street, West Fairview, Cumberland County, Pennsylvania, 17025. 3. Defendant, Etzweiler & Radebach, at all times pertinent to this complaint, was a general professional partnership organized and existing under the laws of the Commonwealth of Pennsylvania for the purpose of offering legal services to the public I whose address was 105 N. Front Street, Harrisburg, Dauphin County, Pennsylvania, 17101. 4. Defendant, Robert G. Radebach, Esquire, is an adult individual who was at all times pertinent to this complaint, duly licensed to practice law in the Commonwealth of Pennsylvania whose present business address is 107 Locust Street, Harrisburg, Dauphin County, Pennsylvania, 17101. 5. At all times pertinent to this complaint, Robert G. Radebach, Esquire was a general partner in the law firm of Defendant, Etzweiler & Radebach. 6. Plaintiffs, Michael J. Frey and Darlien Frey were duly appointed co- executors of the Estate of John W. Frey, (hereinaf\e~ nEstate") date of death, November 25, 1991, on or about December 4, 1991. 7. On or about December 4, 1991, the Plaintiffs employed Robert G. Radebach, Esquire, a partner in the law firm of Etweiler & Radebach to represent them in the probate and administration of the Estate. The Defendants, Robert G. Radebach and Etzweiler & Radebach, billed the estate and were paid $5,221.28 for the legal services they performed. 8, A portion of the Estate consisted of two rental properties located at 216 and 218 4'h Street, West Fairview, Cumberland County, Pennsylvania. 9. Plaintiffs were never advised by Robert G. Radebach or any other member of the firm of Etzweiler & Radebach to open an estate bank account. 10. Plaintiffs were never advised by Robert G. Radebach or any other member of the firm of Etzweiler & Radebach to keep time records, receipts, and expenses for the rental properties ~eparate from their individual assets or from the expenses of the rental I property of the plaintiff, Michael J. Frey's deceased grandmother. 11. Plaintiffs transferred the real property located at 216 and 218 4th Street, West Fairview, Pennsylvania to one of the co-executors, Plaintiff herein, Michael], Frey and another beneficiary, Richard Frey on June 18, 1993 for $44,500.00. 2 12. Plaintiffs did not receive court approval for the transfer of the real property pursuant to the Probate, Estates and Fiduciaries Code, Section 3356. 20 Pa. C. S.A. section 3356. 13. As a result of the mismanagement and self-dealing of the co-executors, and because of their failure to obtain court approval. the Honorable Harold E. Sheely removed the co-executors/Plaintiffs herein as co-executors of the estl\te of John W, Frey. See Opinion and Order of Court dated May 2,1996 attached hereto as Exhibit "An. 14, In addition to being removed from the position of co-executors, the Plaintiffs were surcharged $30,500.00 by Judge Sheely. See Exhibit "A". 15. The Plaintiff Michael J. Frey paid the surcharge of $30,500.00 on April 6, 1999. 16. The Plaintiffs paid to the Defendants as legal fees the sum of $5,221.28. 17, Defendant Radebach failed to properly advise the Plaintiffs on the proper administration of the estate, in that, he: a. Intentionally and in total disregard of the law, advised Plaintiffs, after consulting with Etzweiler, that court approval to transfer real estate to a co- executor was not required, when he knew or should have known that the law . requited court approvali b. failed to advise the Plaintiffs to open an estate bank accounti c. failed to advise ,the Plaintiffs to keep time records, receipts and expenses for estate expenses separate from their individual accounts and from the expenses for other real estate owned by Michael J. Frey's deceased grandmother, , 3 d. failed to properly prepare the Plaintiffs for testimony in various proceedings concerning the Estate. 18. Defendant Radebach's actions, omissions and errors amounted to gross negligence. 19. Defendant Radebach's actions, omissions and errors were willful, wanton, malicious and constituted outrageous and a reckless disregard and indifference to the Plalntirrs rights which justifies the awarding of exemplary damages and punitive damages, 20. As a result of Defendllnt Radebach's failure to properly advise the Plaintiffs, the Plaintiffs have suffered monetary damages and costs and expenses to finalize the estate of John W. Frey. COUNT I NEGLIGENCE PLAINTIFFS V, ROBERT G. RADEBACH 21. The averments in paragraphs I to 20 are incorporated herein as if set forth al1ength. 22. As a result of the attorney-client relationship created by the above conduct I of the parties, Defendant, Robert G. Radebach, had a legal duty to represent Plaintiffs with reasonable care, skill and diligence possessed and exercised by the ordinary attorney in similar circumstances. 23, Defendant Radebach's conduct in failing to obtain court approval of the transfer of Estate real estate to the co-executor was a breach of Defendant Radeb&ch's duty to exercise reasonable care, skill and diligence on Plaintiffs' behalf. 4 24. Defendant Radebach's negligent failure to advise the Plaintiffs to obtain court approval for the transfer of Estate real estate to a co-executor caused Plaintiffs to be removed as co-executors and surcharged $30,500,00. 25. Defendant Radebach's negligent failure to advise the Plaintiffs to obtain court approval for the transfer C'f Estate real estate to a co-executor, to open an estate bank account, and to keep time records, receipts and expenses separate from other accounts was the direct and proximate cause of the removal of the Plaintiffs as co- executors and being surcharged $30,500.00. 26. As a result of Defendant Radebach's negligent actions, the Plaintiffs have incurred additional legal fees and costs to defend their interests in the probate of the Estate in the amount of $9,179.50. 27, As a result of Defendant Radebach's negligent actions, the Estate of John W. Frey has incurred additional legal fees in the amount of$14,922.00, which have reduced the amount of monetary distribution of the Estate to the Plaintiffs. 28. As a result of the Defendant Radebach's negligent actions, the Estate of John W. Frey has incurred additional administration fees in the amount of$4,000,98. 29. As a result of the Defendant Radebach's negligent actions, Plaintiff, I Darlien Frey did not receive her executor's fee in the amount of$2,610.60. WHEREFORE, Plaintiffs demand judgment against Robert G. Radebach, Esquire: a. In the amount of$30,500.00, the amount of the surcharge. b, Return of the $5,221.28 previously paid as Defendant Radebach's legal fee. 5 c. Payment of executor's fee to Plaintiff Darlien Frey in the amount of $2,610.60, which has not been paid to her. d. Reasonable legal fees necessary to defend their interests in the Estate of John W. Frey in the amount of$9.179.50. e. Attorney's fees incurred by the Estate to pursue the accounting and audit and to finalize the probate of the Estate in the amount $14,922.00. f. Exemplary damages and punitive damages. g. Interest on the damages awarded. h. Such other amounts as the court deems appropriate. COUNT II BREACH OF CONTRACT PLAINTIFFS V. ROBERT G. RADEBACH 30.The averments in paragraphs 1 through 29 are incorporated herein as ifset forth at length. 31.Plaintiffs and Defendant Radebach entered into a contract whereby Radebach ." agreed to render competent legal services to Plaintiffs and the Plaintiffs agreed to pay Defendant for said competent legal services. 32.Defendant Radebach breached the contract when he failed to properly advise the Plaintiffs as to the proper probate of the Estate of John W. Frey: a. Advising the Plaintiffs that court approval was not required prior to the transfer of Estate real estate to a co-executor. 1 6 b. Failing to advise the Plaintiffs to open an estate checking account. c. Failing to advise the Plaintiffs to keep time records, receipts and expenses concerning the administration of the estate and work on the Estate real property separate from other accounts and expenses. d. Failing to properly prepare th.e Plaintiffs for testimony in various proceedings concerning the Estate. WHEREFORE. Plaintiffs demand judgment against Defendant Radebach: a. In the amount of $30,500.00, the amount of the surcharge, b. Return of the $5,22\.28 previously paid as Defendant Radebach's legal fee. c. Payment of executor's fee to Plaintiff Darlien Frey in the amount of $2,610.60, which has not been paid to her, d. Reasonable legal fees necessary to defend their interests in the Estate of John W. Frey in the amount of $9, 179.50. e. AUorney's fees incurred by the Estate to pursue the accounting and audit and to finalize the probate oCthe Estate in the amount of $14,922.00 I C, Interest on the damages awarded. g. Such other amounts as the court deems appropriate. COUNT III ~'EGLIGENCE rJ,.AINTIFFS V, ETZWEILER & RADEBACH 7 --,- ;..;....;.~~- ~ , ! 33.The averments in paragraphs 1-32 are incorporated herein as ifset forth at length. 34.Plaintiffs' retention of Robert G. Radcbach is a retention of the Defendant law linn partnership of Etzweiler & Radebach. Thus, Defendant Etzweiler &. Radebach is responsible for the acts, errors, and omissions of Defendant Radebach in connection with the legal services rendered to Plaintiffs. 35.As a result of the attorney-client relationship created by the above conduct of the parties, Defendant ElZweiler & Radebach had a duty to represent Plaintiffs with the reasonable care, skill, and diligence possessed and exercised by the ordinary attorney in similar circumstances. 36.Defendant Radebach's acts of malpractice as previously set forth were within the reasonable scope of the business of Defendant ElZweiler & Radebach. 37.Defendant Radebach's acts of malpractice amounted to gross negligence. 38. Defendant Radebach's actions, omissions and errors were willful, wanton, malicious an d constituted outrageous and a reckless disregard or indifference for Plaintiffs rights which justilies the awarding of exemplary damages and punitive damages. ~ WHEREFORE, Plaintiffs demand judgment against Etzweiler & Radebach: a. In the amount of$30,500.00, the amount of the surcharge. b. Return of the $5,221.28 previously paid as Defendant's Etzweiler &. Radebach legal fee. c. Payment of executor's fee to Defendant Darlien Frey in the amount of $2,610.60, which has not been paid to her from the Estate. 8 d. Reasonable legal fees necessary to defend their interests in the Estate of John W. Frey in the amount of $9,179.50. c. Attorncy's fees incurred by the Estate to pursue the accounting and audit and to finalize the probate of the Estatc in the amount of $14,922,00. f. Exemplary damages and punitivc damages. g. Interest on the damages awarded. h. Such other amounts as the court deems appropriate. COUNT IV BREACH OF CONTRACT PLAINTIFFS V, ETZWElLER '" RADEBACH 39.Thll averments in paragraph I through 38 are incorporated herein as if set forth at length, 40, Plaintiffs and Defendant Etzweiler & Radebach entered into a contract whereby Defendant Radebach agreed to render competent legal services to Plaintiffs. 41.Defendant Etzweiler & Radebach is responsible for the acts, errors, and I omissions of Defendant Radebach in connection with the legal services rendered to Plaintiffs. 42.Defendant Etzweiler & Radebach breached the conlra:t when Defendant Radebach failed to properly advise the Plaintiffs as to the proper probate of the Estate of John W. Frey, as previously set forth in COWlt n. 9 WHEREFORE, Plaintiffs demand judgment against Defendant Etzweiler & Radebach: a. In the amount of $30,500,00, the amount of the surcharge, b. Return of the $5,221.28 previously paid as Defendant Elzweiler & Radebach' legal fee, c. Paymenl of executor's fee to Plaintiff Darlien Frey in the amount of $2,610.60. d. Reasonable legal fees necessary to defend their interests In the Estate of John W, Frey in the amount of $9,179.50. e. Attorney's fees incurred by the Estate to pursue the accounting and audit and 10 finalize the probate of the Estate in the amount of$14,922.00, f. Interesl on the damages awarded. g. Such other amounts as the court deems appropriate. fi.Jr. " ;2.001 Respectfully submitted, , ~~ . i-. L acq line M. Verney, Esquire #23~7 44 South Hanover Street Carlisle, PA 17013 (717) 243-9190 Attorney for Plaintiffs .. to VERlfJCATI9[:i I verify that the statements made in the within Second Amended Complaint are true and correct to the best of my knowledge, Information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa, C, S,A. 0 4904 relating to unsworn falsification to authorities. Dated: J,/rojo/ t:~J~ ~;;-~ ~ , CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the Second Amended Complaint was served on the following person by first class mail on the date indicated: Steven D, Costello, Esquire P.O. BOl( 10248 Lancaster, PA 17605-0248 Date: ~ - ~ - 0 ( ~~.L cqu ine M. Verney, Esquire #23161r 44 South Hanover Street Carlisle, PA 17013 (717) 243-9190 Attorney for Plaintiffs I Exhibit B . ~ n:Jl HM"l'E.R. or Ti1 ISTAD or JOlIN ". J'RBT, DICUSJ"O I III Till COO1lf or COHHOIf lLJAI or I CUIG JJl,t.IJlD COtJJl'1'Y, P ms n. \WItA I I HO. 21-'1-136 ORPaANS' CO~T I I OQIAlOS' eotlR'l' DIVUIOR 111 U I 1t'l'!'I'ION !O lUll/OW Ca;,SlQIS;UTORS JllIPOlUl 8BD'LT. P.J. OPrM!OK ANn ORD~e OP CpU2I B.fo~. t~e coart i. the p.tLtion of Rnth Pry and Jo..ph Pry . (Petitioner.) saaking removal ot D&rl~.~ K. r~ay and Kiab~.l 3. F~.1 .1 Go-executor. of tba abo..-oAptlooad I.tate. .. held a , he~ta~ 00 th, ~tter OD CoQcmbor (, 1995. DrL.t. w.r. th.n fil.d and argum.nt wa. beld 00 April 3, 1"'. A brief factual .nd procedural hLQtory of ~hi. ~tter 1. a. follow.. John lr'f dJ.ecl. tntata OD NO'lrfl~:r 25, U91. At tbl , . I t~e ot hi. dea~h, John Prey owned .over.l prope~tle. Ln the bo;oll'ilh of WOIt r.i"hv, CIoUI'b.dlud County. 00' of the pr~p.rtie. va. Bold, ~d another let ,aida to hottle DarlieQ Pr~y, the .~i.ing .~ou... Th. oth.r prop.~ty. lQQ.ted at 216-218 Po~rth Street (bereiQafter referred to as '214-218"), has ~eG , . tho .~jlOt of IL;nLtLa.ot oont.ntLoa. tba~ 1. neither re1ev~t nor of record, Alte~ ~Qch ~n,uY8~inq M!e~~e1 Frey, JohA Frel" , IOU and OO-.~Bcutor, Arrange a tbe ..le of 216-~18 to hi=..lf and , hi. brother, Riahard Fr.y. This 8ale taok pl.ce without the oouit app~val ~equLred ~y tho '~obat', I.tate. And rLdnai.rL.. C~. a~ eeetloa JJ55. 20 Pa.e,I.A. 1335S. Foftberaorl, the tran.t.r of 216-218 va. ~d. without tho bonetLt of 10 Ipprai..\ to detemllll the current ....llle at the property, whicb UDdoubte4t1 voald ha.. belU ord.r.d b7 tb!. oou~. ,.:" C2 2eee 17: 13 ""'-CWS-CH4 PAGE. 15 !4/U~/UU .UI~UI~U 1111 LoW"" loll! , '\'~1I""1l^ . NO. 2l-J1-UC ORPIlANS' COl7R!l' DMSION .. Za &81 .Y&nt, an ~CCO~Dt WI' fLled, .1 wlr. ab~ecttoD. thereto, &4d thi. Oo~ .~polnt~ aD aUditor, St.ph.a Bogq, ..,., who tiled hi. re~ort on 3Ua. 1', 1"4. fbil aeu~ ~hl~ deDLed ~e axceptloD' that W.~. fi114 to the aud~tor'. ropo~ ia an opinion .n4 orde~ d~ted AprilS, 19'5. OQ 3uly 1', 1"5, . citation va, i"Qed u~n the C~ i%oeutor. to .bov cau.. wbr thay had not co~1!.d with the auditor" repo~ ~d why they ehould Dot bo re~yv.d a. .~~tor.. Aa leatl4 abo.e, we hlld a blarLnq on tho.. i..ues on C.ce~er 4, 19~5. Tb. r.oo~ of thAt he.ring iDdic.tB~ tho folloving. Co. -x~tor ~ehall trer toatitted tnat h. h~d not, telleved tke dlrectiOD' ot tb. auditor" r.p~, even thougb the report bAd belQ c:oll.t.t.~d by thb eou~. KJ...hul Fny al.o luted tket be did not OpOD an .atat, Dh.e~Dq accouDt, that ho and hi. 00- Ix~tor ~id a.t~te expana.. out of th.ir own t~nd. and expected to ~e r.~uraed, an4 tha~ be had no idea what to do in order to cClllllilh~. .dIIlW'~at1cll of the IItate. J'indly, lU.ebul Pny acknOwledged th~t b. b~4 a~anged the aale of 216-21B witbout oourt approval or a current apprai.al. -. , Co-exoo~tor DarlL.n 'rey, the lurvi.in~ apouGa, al.o t..t~fied ae the D~.mber 4, 1'9', beaztng. Shl atatld that ahe 4!d not execute, any document. tor t~1 'Ile ot ~1~-2l', &nd tbat .b. hact IICl~J..n9' to do 'lith any untal of tb~t pro~l!Irty. SIl. aho .tated that .be cU4 bot knOll if &.11 utate ebltCld.llg' aCOOUQt blI4 beea opened. 2 NOU 02 2022 17:13 I"H-CWS-CH4 a L1~'" U4.U . PAGE. IE A~/U~/UU ~U'~U'~4 .......,....... .. -~- -... 1111 ......, ...11. ' NO. 21-U-UlI ORPIlJ.RS' eOt1R'l' DIVISION A petlt1o~ to ra=ov, .n eXleutor i. goveraed by tbe Probat., I.tat.. aBd Pi4uolariee Code at .eotlon. 31Sa Ind 3183. ra o~der to even ~I~it . bl&rLng 00 lueb I petitio., tho ~OV&At .uet allege a"equate gTo!1nda for :r4.l!lQVll ot th, 'IC'Qlltor. 'lht'.9( Vel~t~, 'lI, 'a.SupGr. 313, J18, J2' A.2d 525, 521 Clf871. The !iTo~d. tor 1'&80911 at lllae horl, takoA tro~ 'Gotioa Jl.2 .re. r 11 .. .v.lt.Lng or IIIlnulgillg the utllt:e, f. or 1. likely to bec~, insolyeat, or b.. tLilld to plrto~ Ml dut)' ~ood by hVl or . . . . . . . . . 15) Whell, tor ADY other realon, tho nterut:e ot t.1Ie utlt;e UI lUel1 to 1wt jeopudi.ld by bi. oootinulnel fn otliee. . . 20 Pate.B.A. 13182. ta thl. cose, tho ~~.~"oge=oat of tb. est.ate 1, ol~ar. F~r.t and tor~olt, neither at t.he CO-g~.dQtor' knows wblt haa happened with tho Iltat. tbu. fer, and neither i know~ bow to oompllte t.he admLft!.tratlon. ~ft tar Dorl!en Pr'l, I we ha". 110 quaw ill removing blr trolll the a(1l11.tnhtrathlll at the est.t~, .Lng, her LnvolvDmeot thera!n ba. beeu peripbtrol at bel~. X!ch..l Frey test1t!ed thlt he ha. lIot ope lied &n e.~ta . ehec~~i acoount, eDd fr.ely 'akno~l.dgld t~at he enga~ed iu . -.. .. nU..c!eaUllg ~lt.h regard to 215-218. %:11 addUf.oD to tha IbgV8'del~rUlI!Uf 'I.h~nagelllellt, ve heliege that ~. iDt.re.ta of the eatate vil1 b. j.op~rdlled by allowing , JI.tcbae). Pur aIld Dar1hll rny to Clontint1e II eo-ex.eaton. Sued , oa th.izo perto~o. thai fu, and thoU- teat.boll}', we ba..... lltt1e cOlltUellce that they Cloald eomphtl admfllhtra\:ioll of the 3 NOU 02 2000 1?'14 I"H-CWS-CH4 PAGE.1? NO. 21-'1-S3~ OR;4ANs' COURr DIVISION o.t.to in a tim'ly and peopee i..hLon. While ve r'coin!.. ~h. pO"lhl11ty that the GO-,xICUtar. ~y havo be.n the vlcti~. ot pOor 1.g.1 'dvLaa, the tact r'M~Lnl ~h.t the r.lpoa.lbLlLty tor ..tat. 'da!nl.tratlon It.. with the '~ecutoe, 'nd DO on. .1.., ther.toe., w. tLnd .hundant caUl' to eo~ov. X4ch..l .nd D.rllen re.y I. GO-'.ecutor. of the el~.t. ot John Fr.y. N..C, Va mu.t,.dde... tha L..ue ot . lurch.r;.. In hi. r.po~, the audLtor oed.red that .ny dlff.r.no. b.tween the amount P'ld tor 216-218 1$44,5001 .nd the appr.t.ad v,laa Would be a aurch.rq. to ba patd baek to tho o.tota by the p'r'on~l repr..eat.tlve. ~hi. Court confL~ad that arder at tho .udLtor ln OUr opLnion .nd ordu' of Apr.l.1 !, "1995, Unfortunately; .lthouqh nat'.urprl.1ng1y, th.r. .r. co~P.tlng 'ppraL'II. .t i..u. here. One 'ppraL..I, oa~pl.t.d on April 27, 1993, ..t the v~lu8 of 214-218 at S75,000. rho ~O-eKecutoel clai~ that they . wera un,wars of that appr.L.al .t the timo that tho v~l. of 216- 21S.w~. affacted (June, 1993). A socond appraL~~, in r"pon.e to ~ha petitLon to remove the co-eKecutor., set the valu. of the I , . property at $90,000 a. of H9V'~er 9, 1995. . ~etitlon.re now 8eek. luroharge !n tha 'I~ount of tho difference botwe.n the lal. priee of the houco and ttl .pprai..d Y'lu., .a ordeeed by the ,ud!tor, It ~'11. upon UD to dete~ln. vhioh eppr.L.al to chao... Bloau'ft the sale of the prop.rty took pl'ca .in June, 1lI93, "II wUl u.o the '$7$,000 apprdu1 for t.he purposes of the 8urcharge, Ther.tore, we vLl1 crdar the pllr.anal 4 NCU 02 20ee 17:14 ~..,-:;.jS-CH4 PAGE. IS I. HO. 11-J1-8]' ORPaANS' C~URt DIVISION reprelwnt.tive to pay '30,$00 /$75,000 - '.5,0001 into the letate e. . .uroherge en 215-218. Petition.r. -1.0 '..k to add oth.r '~ount. to the ,urcharge, in~ludini attorney lee., At thi. tLme, in vie~ ot Our removel at the co-executou, ". ,"Ul not levy a tutthu' .urcharge. It. ,,1 U howev.r, onea again order th~t the .uditor'. re~ort, COQtt~od In our opinion ot J\prJ.l 5, 1995, be cOlllpUcd with, in tull, by all pacti... rinally, the e\ldttor~. r.port h.r.in orderod .o~. beneliciart.. 01 John Fr.y'. will to return to the ..tat. c.rt<<1n .~. of ~on.y adVanced to thQ~ aiatn.e th.ir .hare.. fh..o banel!oLaria., thrOUgh the cO....eutor., &Uigoee that th" amount. they have b..n ord.r.d to return be deduct.d trom th.lr .h.r. of th" ultl~.t. distribution of the I.tat.. In view ot the length end eo~plioation. at the IdminL.tration. of thi. G.tlte, V. wIll aqr.1 to luch a ay.te~. Bowever, we wifl requtre t~.t the tLnal dhtr.1.butLon of the Inah be approvec;l by thi. 'T.oul':t betor. any " pa~ont 1a ~d., Purthe~o~o, the 430,500 .ur~harge ~UQt bo paid bnck into tho e.tato and'clenot be deductod tro~ the .h.ra at any benefJ.c::hry. Aased on the forogoing, we eh.ll ent.r the following erder. I 5 000189' . . t'OU 02 2000 17: 14 M-f-CWS-CH4 PAGE. 19 ...;;1"....... NO. 21-~1-835 ORPaANS' COVRT DIVISION MOLE of MA1, 199', it i. e~d.,.d an4 IJlD NOW, t.hh J.d dOlY directed tbat I 1. Kich~el Prey and DarlLen Frey be r.Mov.4 " ca- .x.outor. of the e.tat. ot John Fr.y. 2. Kioha.l pr.y and ~icha~d Fr.y .hall pay a .urohAZio, vithin .!xty (60) day. ot th. date ot thi. oedar, of .30,500 t.o t.h. .at.t. baaGe! on their purchase ot 21..218 Fourth Str..t, w..t r.i~i.y. C~erl.nd County. 3. ~y qualifi.d, int.r..ted partr ~y petition tho ROiL.tar ot Willa tor letter. ot adm1niatrat on in ord., to compllte the adm!ni.tration of t.hi. estate. 4. Wh.n lett.,. ar. qr.nt.d, all document a ,elatin9 to tho e,tat. shall be turned over to the naw Idmlni.trator. 5, Konoy advanced to tho beneticiaries by tk. ..tat. ~galnst their .har.' ~'Y be d.ducted 'ro~ tho ult~at. .h~re of thoae baneticiaries at the tlm. ot tinal diltributlon. 5. No fund. .h1l11 b. dhtl:'ibuted' trolll this ..tat. to any beneficiary until tinal di.tribution i. approvod by thi. court. %n that vein, tke admln!.trator ot tho .,t.t., vbln ~t ie gon~ludod, .hall cub~t a pl:'oposed fln,l di.tr!bution to thL. court. for app:oval. By the Court, .L1.C.audcUt.J.bW.~ Barold E. She.ly, P.:. F~anco' D. Dol Duea, 2squtre For tbl Petitiono:. Robert G. Jadebach, 2lquir. FQC the R.spondents # Xevin s. Blanton, E.qu~ro For the htate Stephan BOi9, !Iquirl Court.ApPQ!nted Auditor 11I14 .. . Ii 000190a . - ' NOU ~2 2BCe 17: 14 1"H-:'-JS-CH4 P~.2e . ..~- --.... . Exhibit C i) . 1 cumrH-.--liuHi County Prot.hOf\otdry' ~i...;.J f ice !Civil CdS" tnqlliry '} 1 '1'1/ O('O'J 1 FHEV MICIIM:1. .J r:'l' AI. ('Is) ETZWr:rI.EH .. HAIlEB/ICII E'l' At. paqn I'VS'> 10 Ih'l f' n~rH'(! No..: (...'... Typ", . . . .: WlnT OF SUMMONS ,llIdlJIl1"nt.. . . . . .: .00 .ll1d'l" Assigned: II i spnsf!d Desc.: -- Case Comlnents ---- - ------- F i 1 cd. . , . . . . . : Timn. . . . . . . . . : Execution Date ,Jury Trial.... Disposed Date. Higher Crt 1.: Higher Crt 2.: 11/0'>119 9 : 0/00/00 0/00/00 ... If"............ ....... ... ............... ... ............ ................... ........... General Indox Attorney Into FIlEV MICIIAEI. .J FIlI':V DARL1EN F.TZWE1t.ER .. RA\lEBACH 10'> NORTH FRONT 5TREE'!' IIAHR t SBURG PA 17101 IlA[JI':HACH ROBERT G \07 LOUCST STREET HArIRISBlJRG PA 17101 PLAINTIFF PLAINTIFF DEFENDANT VERNEY JAC~UELINE M VERNEY .lAC UELINE M COSTELLO SEVEN D DEFENDANT COSTELLO STEVEN D ~.....*.*........,.....".*....*.........*.................................... . DaLe Entries j ............................................................................ II /IlS/ 1997 12101/1997 _ ~ _ _ _ _ _ _ _ _ _ - - FIRST ENTRY - - - - - - - - - - - - - PRAECIPE FOR WRIT OF SUMMONS IN CIVIL ACTION-WRIT OF SUMMONS ISSU ---------------------------------------------+- ------------------ SHERIFF'S RETURN FILED Lltlqanl.: ETZWEILER & RADEBACH SERVED : 11/19/97 DAUPHIN CO WRIT OF SUMloI ~o:t:s::: .: _ ~~~: ~~ _ ~~ _ ~'!: _ ~~~g~~~~~~ -~~~~~~-!~~~~~!~~: --- - --- - - - -- SHERIFF'S RE~URN FILED Litiqanl.: RADEBACH ROBERT G SERVED : 11/10/97 DAUPHIN CO WRIT OF SUMM CORls....: $B.OO Pd By: JACQUELINE VERNEY 12/03/1997 ---- -------+- ...--------------------------------------------------- COMPLAINT COUNT 1 NEG~lGENCE PLFFS V ROBERT G RADENBACH COUNT 2 BREACH OF CONTRACT PLFFS V ROBERT G RADEBACH COUNT 3 NEGLIGENCE PIYFS V ETZWEILER & RADEBACH COUNT 4 BREACH OF CONTRACT PLFFS V ETZWEILER .. RADEBACH BY JACQUELINE M BERNEY ESQ ATTY FOR PLFF ----..---------.---------------------------------------------------- ENTRY OF APPEARANCE FOR OEFTS BY STEVEN D COSTELLO ESQ ---------------------..------------------------------------------- ORDER OF COURT DATED Il-B-OO IN RE 2000 PURGE - REGARDING RECEN1 ACTIVITY ON THE CASE - THE CASE SHALL BE REMOVED FROM THE OCTOBEI 31 2000 PURGE LIST - .I WESLEY OLER JR J - NOTICES MAILED _ _ _ _ _ _ _ _ _ _ _ - - - LAST ENTRY - - - - - - - - -- - - - . \2103/1997 IO/.lll/211011 11/1\11/2000 11/09/2000 ............~...*.****............*...........*......*......................~ . Escrow Information . rnns F. Debi ts Bea Bal pvmts/Adi End Bal ....*......................*....~.*......l...... ........................... WRIT OF SUMMONS TAX ON WRIT SETTLEMENT JCP FEE 35.00 35.00 .50 .50 5.00 5.00 5,00 5.00 ------------------------ 45.50 45,50 .00 .00 .00 .00 ------------ .00 .k.......................................................................... . End of Case Information ~t..........*...*...........*....*.......t........*......................... - . "YS"lU I. 'u~: : . I".. i " .t.: 'i l'r c,t li..)!I' t II 'i' ;', ! I I "I' 1,'1' vii "_1:..1(' r n'_Ili t l 't' j I-J'-' 1.997-06091 FREY HICIlAEL <I ET AI. i,'''';) ETZWEILI':R /, RAlJEflACIl ET AI. Reference No, , : Case 1ype.....: WRIT OF SUMMONS Judgment......: .00 Jl,ldge Ass iCJned: Dl sposed De8C.: ____________ Case Comments ------------- Filed. . , . . , . . : Time. , , . , . . . . : Execution Date ,Jury TrIal. . . , Dioposed Date. Higher Clot 1.: Higher Crt 2.: 11/05/199"' 9:23 0/00/0000 0/00/0000 -.-....--.-.-........-*-.....--...----....---.........***--..............--.-.-- General Index Attorney Info FREY MICHAEL J PLAINTIFF VERNEY JAC~UELINE M FREY DARLIEN PLAINTIFF VERNEY JAC UELINE M ETZ\ojE I LER & RADEBACH DEFENDANT COSTELLO SEVEN 0 105 NORTH FRONT STREET HARRISBURG PA 17101 RJl.DEBACH ROBERT G DEFENDANT COSTELLO STEVEN D 107 LOUCST STREET r~RRISBURG PA 17101 .**--....-..............-...................-----..............--..............- . Date Entries · .........----......--......---...--.....-.....--......**........................ 11/05/1997 12/03/1997 _ _ _ _ _ _ _ _ _ _ - - - FIRST ENTRY - - - - - - - - - - - - - - PRAECIPE FOR WRIT OF SUMMONS IN CIVIL ACTION-WRIT OF SUMMONS ISSUED ------------------------------------------------------------------- 2/06/2001 2/13/2001 SHERIFF'S RETURN FILED Litigant.: ET4WE~LER & RADEBACH SERVED : 11/19/97 DAUPHIN CO WRIT OF SUMM . Costs....: $60.50 Pd By: JACQUELINE VERNEY 12/03/1997 _______________________________________r______________------------- SHERIFF'S RETURN FILED Litigant.: RADEB~CH ROBERT G 3ERVED : 11/10/97 DAUPHIN CO WRIT OF SUMM Costs....: $8.00 pd By: JACQUELINE VERNEY 12/03/1997 ------------------------------------------------------------------- COMPLAINT COUNT 1 NEGLIGENCE PLFFS V ROBERT G RADENBACH COUNT 2 BREACH OF CONTRACT PLFFS V ROBERT G RADEBACH COUNT 3 NEGLIGENCE PLFFS V ETZWEILER & RADEBACH COUNT 4 BREACH OF CONTRACT PLFFS V ETZWEILER & RADEBACH BY JACQUELINE M BERNEY ESQ ATTY FOR PLFF -- - - --- ---- - - - - - - - .-- - - - --- - --- -_.- - - - - - - - - -- - - - - - - - - - - - - - - -- - - - - -- ENTRY OF APPEARANCE FOR DEFTS BY STEVEN D COSTELLO ESO ------------------------------------------------------------------- ORDER OF COURT DATED 11-8-00 IN RE 2000 PURGE - REGARDING RECENT ACTIVITY ON THE CASE - THE CASE SHALL BE REMOVED FROM THE OCTOBER 31 2000 PURGE LIST - J WESLEY OLER JR J - NOTICES MAILED ------------------------------------------------------------------- PRELIMINARY OBJECTIONS OF DEFENDANTS ETZWEILER & ASSOCIATES F/K/A ETZWEILER & RADEBACH AND ROBERT G RADEBACH TO PLAITIFFS COMPLAINT - BY STEVEN D COSTELLO ESQ '- ------------------------------------------------------------------- PRAECIPE FOR LISTING CASE FOR ARGUMENT - BY SANDRA-L FOSTER ATTY FOR DEFT ------------------------------------------------------------------- AMENDED COMPLAINT - BY JACQUELINE M VERNEY ESO ATTY FOR PLFF ------------------------------------------------------------------- PRAECIPE FOR LISTING CASE FOR ARGUMENT - DEFENDANTS PRELIMINARY OBJECTIONS TO PLAINTIFFS AMENDED COMPLAINT - BY SANDRA L FOSTER ATTY FOR DEFT ------------------------------------------------------------------- PRELIMINARY OBJECTIONS OF DEFENDANTS ETZWEILER & RADEBACH AND ROBERT G RADEBACH TO PLAINTIFF'S AMENDED COMPLAINT - BY STEVEN 0 COSTELLO ------------------------------------------------------------------- SECOND AMENDED COMPLAINT - BY JACQUELINE M VERNEY ESO FOR PLFFS ------------------------------------------------------------------- PRAECIPE TO WITHDRAW PRELIMINARY OBJECTIONS TO PLFFS AMENDED COMPLAINT - STEVEN D COSTELLO _ _ _ _ _ _ _ _ _ _ _ _ - - LAST ENTRY - - - - - - - - - - - - - - 12/03/1997 10/30/2000 11/08/2000 11/09/2000 11/13/2000 11/13/2000 12/01/2000 12/20/2000 12/20/2000 ..***..****.*********..***....*.........*....*.*.*........................*.**. .......'.,1".. ... 'J .' .,." G} ~ ; Exhibit 0 INRE: ESTATE OF JOHN W. FREY Deceased. : IN THE COURT OF COMMON : PLEAS OF CUMBERLAND : COUNTY, PENNSYLVANIA : ORPHANS' COURT DIVISION : NO. 21-1991-0836 IN RE: ESTATE OF FREY Before HOFFER. P.J. ORDER OF COURT AND NOW.~..L . 2000, upon consideration of the briefs submitted by both parties, the facts of record, and' the applicable law, the court directs distribution of the estate in accordance with the attached opinion. I Frances H. Del Duca, Esquire 10 West High Street Carlisle, PA 17013 For the Administratrix Jacqueline M. Verney, Esquire 44 South Hanover Street Carlisle, PA 17013 For the Objectors By the Court, P.J. I f ; f ,l / IN RE ESTATE OF JOHN W. FREY : IN THE COURT OF COMMON : PLEAS OF CUMBERLAND : COUNTY, PENNSYLVANIA : ORPHANS' COURT DIVISION : NO. 21-1991-0836 Deceased. IN RE: ESTATE OF FREY Before HOFFER. P.J. OPINION In this opinion, we address the final resolution of an ongoing estate dispute. On September 10, 1999, Ruth Frey-Lupfer petitioned the court for approval of proposed final distribution of the estate of her father, John W. Frey (hereinafter "decedent"), who died testate on November 25, 1991. The decedent's will named his second wife, Darlien Frey, and his son Michaei Frey, co-executors of the estate. The estate consisted of three residential properties in the borough of West Fairview, Cumberland County I . (401 Front Street, 318 4th Street, 216/218 4th Street), bank accounts totaling approximately $15,885.18, and two vehicles. Darlien obtained a life interest in the property located at 401 Front Street, the balance of a Joint checking account, and one-half of the residuary estate. The remainder of the estate was to be devised In equal shares to the six Frey children. A factual and procedural history of pertinent estate matters after decedent's death is as follows. In February of 1992, Michael had the 216/218 property appraised by a certified Dauphin County appraiser. At that time, the property was vaiued at $44,500. Over a year later, Michael and his brother Richard, desired to buy 216/218 and contacted a lending institution to obtain a mortgage. The lending institution valued the property at $75,000.00 after conducting an Independent appraisal. The substantial difference between the two appraisals was due to repairs and improvements made by the two brothers. In June 1993, Michael and Darlien as co-executors sold 216/218 to Michael and Richard for $44,500.00. Michael and Richard received $5900 advancements against their interest in the estate to be used towards their purchase of 216/2.18. The co-executors neither sought nor received court approval for this sale. On July 29, 1993. the co-executors sold 318 Front Street for $16,000.00. On November 12, 1993, the co-executors of the decedent's estate, filed a first and final account with the court. Ruth Frey-Lupfer and Joseph Frey, two of the six Frey children, filed objections to the final accounting as a result of the general speculation that the decedent's estate was being mismanaged with questionable estate transfers. Based on this objection, the court appointed an Independent auditor, Steven J. Hogg, to take testimony and make findings of fact and proposed conclusions of law. 2 " The auditor filed his report with the court on June 16, 1994. In the report, the auditor reached the following conclusions: 1. The DAFCU account no. 48869-00 containing $12,555.86, Is for general distribution despite the agreement to deliver it to the surviving spouse, Darlien Frey, because it must offset the estate debts. 2. The amount of $2,477.72 shall not be charged to the estate for repairs and utilities of 216/218 but shall be charged Instead against the share of Richard Frey. 3. There Is no evidence that the personal representatives obtained either court approval or the consent of all the remaindermen to transfer title In fee simple to 401 Front Street to Darllen Frey; therefore, the transfer is revoked, and the life estate Is distributed according to paragraph Iii of the will 4. The estate expense's were improper1y charged against the children's share 5. The transfer of 216/218 to one of the personal representatives and a beneficiary without court approval was improper and self- dealing, and Is therefore revoked. 6. The personai representatives are further ordered to obtain an appraisal of 216/218 by a reputable real estate appraiser within sixty (60) days of this order and submit such appraisal to the court for the further order. I 7. It Is further ordered that the personal representatives be surcharged for the appraised value of 216/218 over and above the previous purchase price of $44,500. 8. The personal representatives have Impermissibly paid certain beneficiaries, Richard Frey and Michael Frey, prorated advancements which shall be returned to the estate for distribution. 3 : On April 5, 1995, through an opinion and order, this court denied objections that were filed to the auditor's report. On Juiy 18, 1995, a citation was Issued upon the co-executors to show cause why they had not complied with the auditors report and why they shouid not be removed as executors, Testimony on this issue was taken on December 5, 1995. The record of the hearing revealed the following. Co-executor, Michael Frey testified that he had not voided the property transfers as directed by the auditor's report. Michael Frey also stated that he did not open an estate checking account, that he and his co-executor paid estate expenses out of their own personal accounts expecting to be reimbursed, and that he was completeiy ignorant as to how to complete the administration of the estate. Co-executor, Darlien Frey, aiso testified at the December 5, 1995 hearing. She stated that she did not execute any documents for the sale of 216/218. She also stated that she did not know whether there was an estate checking account and that she was not involved in the estate financ~s. Based on this testimony, Judge Sheely issued an order on May 2, 1996, which contained an order to remove Michael and Darllen as co- executors of the estate. Additionally, calculating the difference between the first and second appraisals, the court directed Michael and Richard to pay a surcharge of $30,000 to the estate. Judge Sheely also ordered that any money advanced to the beneficiaries by the estate against their shares 4 1 may be deducted from the ultimate share of those beneficiaries at the time of final distribution. Richard subsequently filed a petition to open and/or strike the Judgement and Oarlien filed a notice of appeal to this court. Thereafter, on June 3, 1996, Judge Sheeiy Issued an amended order to correct errors and ambiguities present in his original order. As to the $30,000 surcharge assessed against Michael and Richard, the court amended both the amount and the payees to reflect a $30,500 ($75,OOO- $44,500) surcharge against Michael and Darlien, as co-executors. The Superior Court affirmed the order of the trial court. On May 8, 1997, the Superior Court held that the trial court did not abuse Its discretion In removing Michael and Darlien Frey as co-executors of the estate and in assessing a $30,500 surcharge against the former co- executors.' On June 12, 1997, the executor filed a Petition for Allowance of Appeal with the Supreme Court of Pa. On October 17, 1997, the Supreme Court denied the appeal. On February 4, 1999, Letters of Administration D.B.N.C.T.A. were I granted to Ruth-Frey Lupfer by Register of Wills. Pursuant to her appointment as administratrix, she received funds held by the prior attorney for the estate in the amount of $34,075.69 on March 19, 1999. On April 6, 1999, the Administratrix received the surcharge of $30,500 I See Matler orEsl.te orFrey, 693 A.2d 1349 (Pa. Super. 1997). s from the former executors which had been ordered by the court on May 2, 1996. Discussion At issue Is the distribution of $65,323.28 among the six Frey children. There were objections to the proposed accounting raised by attorney Jacqueline M. Verney, on behalf of Michael Frey, Darlien Frey, Richard Frey, Tracey Frey Hoffman and Barry Frey. They object to the estate fees and commission charged by estate lawyer, Frances DelDuca. Attorney DelDuca performed considerable services in causing the original co-executors to be removed and obtaining the $30,500.00 surcharge. Because of the original executors appealled, attorney Del Duca had to defend the decision ordered by Judge Sheely. Hubert Gilroy, an expert of attorney's fees, gave testimony before this court as to the reasonableness of DelDuca's fees. Gilroy stated that Del Duca's fees were reasonable and even below the local rate. Therefore, it is found that DelDuca's fees are appropriate. I From $65,323.28, Del Duca's attorney fee of $11,920.00 Is to be paid prior to any distribution to the six Frey children. It is also the belief of this court that the attorney's fees of $3,000.00 claimed for by the attorney of the estate, and the administrator's fees of $3,000.00 are not excessive or unreasonable. Therefore, it is found that the Administratrix and attorney for the estate are entitled to fees of $3,000.00 each. 6 .' As previously noted, Richard and Michael received preliminary $5,900.00 advancements against their Interest in the estate. Therefore, It is found that Joseph Frey and Ruth Frey-Lupfer are entitled to a $5,900 priority distributions. On December 27,1993, Tracy Ann Frey assigned all of her right, title or interest in the amount of $5,900.00 to Darlien Frey. On January 31, 1994 Barry Frey assigned all of his right. title, or Interest In the amount of $5,900.00 to Darlien Frey. Therefore, this court finds that Tracy and Barry are not entitled to $5,900.00 priority distributions, but that DarUen Frey is the beneficiary of a $11,800.00 priority distribution through the assignment of interest from Tracy and Barry. As of March 26, 2000, the estate was valued at $65,323.28. Following various expenses and priority distributions, this court finds $22,706.70 Is available for distribution. Divided six ways, each beneficiary would receive $3,784.45, but based upon a prior order from Judge Sheely, the amount of $2,447.72 shall be charged against the share of Richard Frey. Thus $2,447.72 will be subtracted from Richard's $3,784.45 share I and divided equally among the five other beneficiaries. Therefore, $489.54 will be added to the shares of the five other beneficiaries. After years of mismanagement and malfeasance on behalf of the first attorney of the Frey estate, the final distribution Is as follows: 7 Received by accountant as of March 26 - $65,323.28 Payment of taxes for 98-99 93.60 37.00 43.00 198.22 722.76 11,922.00 5,900.00 5,900.00 11,800.00 Cost for Letters to Register of Wills FIling cost to Register of Wills Costs for defending Superior Court appeal Cost for filing exceptions to First & Final Account Attorney fee for filing exceptions and obtaining surcharge Priority distribution to Ruth Frey-Lupfer Priority distribution to Joseph Frey Priority distribution to Darllen Frey (pursuant to $5900 assignment of Interest from both Tracy Ann Frey and Barry L. Frey dated Dec. 27,1993 and January 31,1994 respectively) Ruth Frey-Lupfer, Administratrix 3,000.00 3.000.00 $42,616.58 Frances H. DelDuca, attorney for Estate For distribution to Beneficiaries - $22,706.70 I Richard Frey 1336.73 Michael Frey . 4273.99 Barry Frey 4273.99 Tracey Frey 4273,99 Joseph Frey 4273.99 Ruth Frey Lupfer 4273.99 8 <i) Exhibit E HANFT & VOH9 .o\TTOHSF'\'1'i AT J..\W 11 W,:,,-l' POHrlll1T S,TItI:MT, S"ITr. \J CAlo.thr.v., r..... 1101:' i-fICHA'U. .J. H",...t'T W...',14~! ('. 'VnHl't (717) 1l-40.0"71l ,..,. CJllI "J"'t'l '-.1 June 26, 1997 Richard c. Snelbaker, Esquire SNF.LRAXER, BRF.NNF.MAN , SPARE 44 Wast Main Street Mech~nicsburq, PA 17055 Frances H. DelDuca, Esquire 10 West High Street carlisle, PA 17013 ~athleen D. Keating, Esquire 44 South Hanover Street Carlisle, PA 17013 REI Estate of John W. Frey Greetings: In response to your June 23, 1997, letter, please be advised that we represent Michael and Dsrlien Frey. .. I am prepared to meet at your office at the date and time you suggested. Per your request, and solely for the purposes of settlement negotiations, my clients' claims are based on professional malpractice against Etzweiler and Associates for their ~isrepresentation of the estate. I had a detailed discussion regarding that claim with your partner, Phil Spsre. The surcharge that was levied by the auditor, confirmed by Judge Sheely, and the Superior Court, relates directly to that misrepresentation for your client's failure to seek court approval of the sale of real property to one of the co-executors and a beneficiary. Hence, my clients' position is that that surcharge, along with my fee, should be payable by EtEweiler and Associates. .."".IPIn'ftl.,...u.. ." Rich~rd C. Snelbaker, Esquire June 26, 1997 paqe Two Should you have any questions or need any additional information, please do not hesitate to contact me. Very truly youra, WCVldln CCI Michael J. Frey DarUen Frey " I "'CU).'TIftIY..:.tt.~ .. 'i CERTIFICATE OF SERVICE I, STEVEN D. COSTEllO, ESQUIRE. attorney for Defendants, ETZWEllER & ASSOCIATES, fIkIa ETZWEllER & RADEBACH, and ROBERT G. RADEBACH, hereby state that a true and correct copy of the foregoing document(s), sent by first-class mail, postage prepaid on the date set forth below, was served upon the following individual(s): Jacqueline M. Verney, Esquire 44 South Hanover Street Carlisle, PA 17013 POST & HELL, P.C. By: Date:~ I , separate from their individual accounts and from expenses for other real estate owned by Michael J. Frey's deceased grandmother; and failed to properly prepare the Plaintiffs for testimony in various proceedings concerning the estate. Defendants generally denied Paragraph 17 in their Answer to the Second Amended Complaint, attached hereto as Exhibit B. Defendants claim that all of the damages demanded in Plaintiffs' Complaint should have been brought by a representative of the Estate. For the reasons set forth below, Defendants' Motion lor Judgment on tlie Pleadings should fail. II. ISSUES: A. WHETHER DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS MUST FAIL SINCE DEFENDANTS DID NOT RAISE THE ISSUE OF THE NONJOINDER OF THE ESTATE OR ITS REPRESENTATIVE IN A PRELIMINARY OBJECTION? Suggested Answer: Yes B. WHETHER DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS MUST FAlL SINCE A LEGAL MALPRACTICE CLAIM IS NOT A SURVIVAL CLAIM OF THE DECEDNET GOVERNED BY 20 Pa. C.S.A. ~3373? Suggested Answer: Yes. C. WHETHER THE COURT SHOULD GRANT PLAINTIFFS' PARTIAL JUDGMENT ON THE PLEADINGS ON THE ISSUE OF THE SURCHARGE BECAUSE DEFENDANTS ONLY GENERALLY DENIED PARAGRAPH 17 OF THE COMPLAINT, THUS ADMITTING THE NEGLIGENCE OF DEFENDANT RADEBACH? Suggested Answer: Yes. Ill. ARGUMENT: A. Defendants' Motion for JudKIDent on the Pleadings should be denied because Defendants failed to file a preliminary objection pursuant to Pa. R. C. P. 1028(a)(5) with . respect to a representative of the estate bringing the instant action. Defendants failed to raise as a preliminary objection the nonjoinder of the representative of the estate. Pa R.C.P 1028(a)(5) provides: " Preliminary objections may be filed by any party to any pleading and are limited to the following grounds: (5) lack of capacity to sue, nonjoinder of a necessary plll1y or misjoinder of a cause of action;" Pa. R.C.P. 1028 (b) provides: "All preliminary objections mllll be raised at one time. They shall slllte specifically the grounds relied upon and may be Inconsistent. Two or more preliminary objections may be raised In one pleading." (Emphasis supplied). The basis for Defendants' Motion for Judgment on the Pleadings is the Plaintiffs' lack of capacity on behalf of the estate to sue. Defendants having failed to raise this issue in preliminary objections is now barred from raising it in their motion for judgment on the pleadings. B. Defendants claim Plaintiffs' action is a survival action governed by Section 3373 of the Probate, Estates and Fiduciaries Code which provides: "An action or proceeding to enforce any right or liability which survives a decedent may be brought by or against his personal representative alone or with other plll1ies as though the decedllnt were alive. 20 Pa.C.S.A. ~3373. To the contrary, this litigation arose after the death of John W. Fre)', when the Defendants failed to advise or negligently advised the Plaintiffs how to proceed with the administration of the estate. The cases cited by Defendants, Myers v. Estate of Wilks, 440 Pa. Super 176, 655 A. 2d 176 (1995) and Nelson v. Estate of Jonathan Massey, 455 Pa. Super. 71, 686 A.2d 1350 (1996), allocatur denied, 548 pa. 637, 694 A.2d 622 (1997), are cases involving "survival" actions, cases where a claim or liability arose in the decedent I2Ji2Lto his death. In the inslllnt matter the malpractice cause of action arose in 1996 when Judge Sheely removed the Plaintiffs as the co-executors and ordered a surcharge in the amount of $30,500.00. This occurred some four and one half years after John W. Frey diedl To allege that John W. Frey had the right to sue for the return of the $30,500.00 is absurd. C. Plaintiffs are entitled to judgment on the pleadings based on the Defendants' responses to Plaintiffs' paragraph 17 of the Second Amended Complaint. On motion for judgment on the pleadings, the trial coun must confine consideration to pleadings and relevant documents and accept as trUe all well pleaded sllltements of fact, admissions and any documents properly attached to the pleadings presented by the plll1y against whom the motion is filed. The Coun may grant judgment on the pleadings only where a moving plll1y's right to succeed is certain and the case is free from dllubt that trial would clearly be a fruitless exercise. Fowkes v. Shoemaker, 443 Pa. Super. 343, 661 A.2d 877 (199S) reargument denied, appeal denied, 544 Pa. 609, 674 A.2d 1072 (1996). Finally, once one of the plll1ies have moved for judgment on the pleadings, the coun may enter a judgment in favor of either the plaintiff or defendant. Shoup v. Shoup, 469 PA.165, 364 A.2d 1319 (1976). In Swlfi v. Milner, 371 pa. Super. 302, 538 A.2d 28 (1998), a case in which the plaintitT moved for judgment on the pleadings, the court recognized that the Defendant's general denial ofPlaintitTs' allegations etTectively manifested the defendant's admission to the facts averred in the complaint. 371 pa. Super. at_, 538 A.2d at 30-31. In fact, the court stated that the paragraphs that the defendant had generally denied encompassed all of the allegations on which the plaintitThad based its claim and upheld the lower court's granting of a purtial judgment on the pleadings to the plaintitT. Based on Swlfi, supra, by pleading a general denial to the pleadings in Paragraph 17, the Defendants herein have admitted that Robert G. Radebach failed to properly advise the PlaintitTs on the proper administration of the estate, in that: .. a. advised PlaintitTs that court approval to transfer real estate to a co-executor was not required; b. failed to advise the PlaintitTs to open an estate bank account; c. failed to advise PlaintitTs to keep time records, receipts and expenses for estate expenses separat': from their individual accounts and from the expenses for other real estate owned by Michael j. Frey's deceased grandmother; d. failed to properly prepare the PlaintitTs for testimony in various proceedings concerning the Estate." PlaintitTs request this Honorable Court to order purtial judgment on the pleadings with regard to the $30,500.00 surcharge imposed by Judge Sheely in the estate action. The general denial of Paragraph 17 is incorporated by reference in all counts of the complaint. IV, CONCLUSION: Based on the reasons set forth above, PlaintitTs respectfully request this Honorable Court deny Defendants' Motion for Judgment on the Pleadings and grant a partial Judgment on the Pleadings in favor of PlaintitTs for the $30,500.00 surcharge. Respectfully submitted, .i acq line M. Verney, Esquire #231 44 South Hanover Street Carlisle, PA 17013 (717) 243-9190 Attorney for PlaintitTs , . . MICHAEL J. FREY, and DARLIEN FREY, Co-ueculon ollbe Ellale 01 Jobn W. Frey, PlalnUff. I IN THE COURT OF COMMON PLEAS OF I CUMBERLAND COUNTY,PENNSYLV ANIA I CIVIL ACTION - LAW . . . I NO. 97-6091 CIVIL TERM v. I ETZWEILER" RADEBACH and: JURY TRIAL DEMANDED ROBERT G. RADEBACH, Defendanll ~OTlCE YOU HAVE BEEN SUED IN COURT. If you wish 10 defend against tho claims sel forth In the following pagcs, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections lot he claims set forth against you. You arc warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff, You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD 0"""1:, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cwnberland County Bar Association' 2 Llbel1y Avenue Carlisle, PA 17013 (717)249.3166 TRUE copy FROM RECORD In Test Wiler. I here unto - my lIaIlO and .. at C al CaI1_~' PI. ~#- . 'T nocary I ~ -~ I tqu eM, Verney, Esquire mi67 ?r' 44 South Hanover Streel Carlisle, PA 17013 (717) 243.9190 << . . MICHAEL J. FREY, and DARLIEN FREY, Co-esec:uton of th. Ellal. of John W. Fro)', PlalDllffl : IN THE COURT OF COMMON PLEAS OF I CUMBERLAND COUNTY,PENNSYLV ANIA . . I CIVIL ACI'ION - LAW . . : NO. 97-6091 CIVIL TERM v. . . ETZWEILER" RADEBACH and: JURY TRIAL DEMANDED ROBERT G. RADEBACH, I D.fendantl t\MENQED COM~LAINT AND NOW, this / )(da)' of December, 2000, comes the Plaintiffs, Michael J. Frey and DlU'lIen Frey, by and through their anomey, Jacqueline M. Vemey, Esquire, and avers In support of Its amended complaint against Defendants as follows: I. Plaintiff, Michael], Frey, is an adult Individual residing at 454 High Street, West Fairview, Cwnbcrland County, PelUlSylvania, 17025. 2. Plaintiff, DlU'lIen Frey, is an adult individual residing at 401 Front Street, Wesl Fairview, Cwnbcrland County, PelUlSylvania, 17025. 3, Defendant, Etzweiler & Radebach, at all times pertinent to this complaint, , was a general professional partnership organized and e,,!sting under the laws of the Commonwealth of PelUlSylvania for the purpose of offering legal services to the public whose address was 105 N, Front Street, Harrisburg, Dauphin County, PelUlSylvania, 17101. 4. Defendant, Robert O. Radebach, Esquire, is an adult Individual who was III all times pertinent 10 this complaint, duly licensed to practice law in the Commonwealth ofPelUlSylvania whose present business IIddress Is 107 Locust Street, Harrisburg, Dauphin County, PelUlSylvania, 17101. , . '. 5. At all times pertinent to this complaint, Robert 0, Radebach. Esquire was a seneral partner in the law rum of Defendant, Euweiler & Radebach, 6, Plaintiffs, Michael J. Frey and Dullen Frey were duly appointed co-- executors ofthc Estate of John W, Frey, (hereinafter "Estate") date of death, November 25,1991, on or about December 4, 1991. 7. On or about December 4, 1991, the Plaintiffs employed Robert O. Radebach. Esquire, a partner in the law rum of Etweiler & Radebach to represent them in tho probate and administration of the Estate, The Defendants, Robert O. RlIdebach and Euweiler & Radebach, billed the estate and were paid $5,221,28 for the legal services they performed, 8. A portion of the Estate consisted of two rental properties located at 216 and 218 411I Street, West Fairview, Cumberland County, PeMSylvania. 9, Plaintiffs were never advised by Robert O. Radebach or any other member of tho rum of Etzweiler & Radebach to open an estate bank account. 10. Plaintiffs were never advised by Robert 0, Radebach or any other member of tho firm of Euweiler & Radebach to keep time records, receipts, and expcilSCs for the rental properties separate from their individual assets or from the expenses of the rental property of the plaintiff, Michael J. Frey's deceased grandmother. 11. Plaintiffs transferred the real property located at216 and 218 411I Street, West Fairview, PeMSylvania to one of the co-executors, Plaintiff herein, Michael J. Frey and another beneficiary, Richard Frey on June 18, 1993 for $44,500.00. 2 12. Plaintiffs did not receive court approval for the trwfer of the real property pursuant to tho Probate, Estates and Fiduciaries Code, Section 3356. 20 PI. C. S.A. section 3356. 13. M a result of the mismanagement and self-dealing of the co-cxecutors, and because ofthoir failure to obtain court approval, the Honorable Harold E. Sheely removed tho co-cxecutorsIPlalntiffs herein as co-executors of the estate of John W, Frey. See Opinion and Order of Court dated May 2,1996 attached hereto as Exhibit "A". 14, In addition to being removed from the position of co-cxccutors, the Plaintiffs were surcharged S30,500.00 by Judge Sheely. See Exhibit "An. 15, The Plaintiff Michael J. Frey paid the surcharge of$30,500.00 on April 6, 1999. 16, The Plaintiffs paid to the Defendants lIS legal fees the sum of S5,221.28. 17. Defendanl Radebach failed to properly advise the Plaintiffs on the proper admi'li,tration of the estate, in that, he: a. advised Plaintiffs that court approval to tranSfer real estate to a co-cxccutor WlIS not required; b. failed to advise the Plaintiffs to open an estate bank account; c. failed to advise the Plaintiffs to keep time records, receipts and expenses for estate expenses separate from their individual accounts and from the expenses for other real estate owned by Michael J, Frey's deceased grandmother. d. failed to properly prepare the Plaintiffs for testimony in various proceedinas concerning the Estate, 3 18, Defendant Radebach's actions, omissions and errors amoWlted to &lOss ne&ligence, 19. Defendant Radebach's actions, omissions and errors were willful, wanton and malicious and justify the awarding of exemplary damages and punitive damages. 20, M a result of Defendant Radebach's failure to properly advise the Plaintiffs, the Plaintiffs have suffered monetary damages and costs and expenses to fmalizc the estate of John W, Frey. ~ ~ ~INTIFFS V, ROBERT G. RADtBACll 21. The averments in paragraphs 1 to 20 are incorporated herein as if set forth at lenatJt. 22, M a result of the anomey-client relationship created by the above conduct of the parties, Defendant, Robert G. Radebach, had a legal duty to represent Plaintiffs with reasonable care, skill and diligence possessed and exercised by the ordinary anomey in similar circumstances. 23, Defendant Radebach's conduct In failing to obtain court approval of the transfer of Estate real estate to the co-executor was a breach of Defendant Radebach's duty to exercise reasonable care, skill and diligence on Plaintiffs' behalf. 24, Defendani Radebach's negligent failure to advise the Plaintiffs to obtain court approval for the transfer of Estate real estate to a co-executor caused Plaintiffs to be removed as co-executors and surcharged $30,500.00, 4 25. Defendant Radebach's nelJlllJent fall\ll'O to advise tho Plaintiffs to obtain ~1111 approval for tho tranafer of Estate real e.tale to I CO-oXCC'Jtor, to open II.l estall bank 8CCOWI, and to keep time rcc:ords, receipu and expenses separalllTom othlt 8CCOwta waa the dirc<:t and proximate cau.se of tho removal of tho Plalnllffs II co- exccuton and hema SW'Cbaried S30,500.00, 26. AI a result of Defendant Radebach's nelJlilJent actlonl, the Plalnllf1i bave Incurred addillonalleaal fecs and cosu to defend their interesta in tho probata of the Estate in tho amount ofS9,179,50. 27, AI a re.u1t of Defendant Radebach's nelJliaent actlOnl, tho Esllte of John W. Frey Iw Incurred additionallelJaI fee. in the arnount ofSI4,922.00, which havo reduced tho arnowt of monetar)' di.uibution of tho E.tato to tho Plaintiffs. 28. As a re.u1t of tho Defendant lUdebach's nOlJlilJont "tlona, tho EatalO of John W. Frey has incurred addillonal admlnl.tratlon feOlln tho IRIOWlt of $4,000.98. 29, As a result of tho Defendant RAdobach's nClJllaont "tlona, Plaintiff, Darlien Frey did not re<:civo her cxccutor's foo In tho arnowt of $2,61 0,60. WHEREFORE, Plalntiff. demandjudamentlaalnat Robel1 O. R.adtbac:h. Eaqulrc: a. In tho amount ofS30,500,OO, tho amoWlt of tho IlIlCharao, b, Rcnam of tho S5,221.28 prevloualy paid II Defondant lUdobac:h'. lep! fco. 0, Payment of oxcc:utor's fco to Plaintiff Darlion Frey in tho &mOwt of S2,6 I 0.60, which baa not been paid to her. , d. Reasonable legal fees necessary to defend their interests in the Estate of John W, Frey in the amount 0($9,179.S0. e. Attorney's fees incurred by the Estate to pursue the accounting and audit and to fmalize the probate of the Estate in the amount 514,922,00, f. Reasonable attorney fees and costs for this litigation in accordance with 42 Pa.C.S.A, section 2S03, g. Exemplary damages and punitive damages. h. Interest on the damages awarded. I. Such other amounts as the coun deems appropriate. ~ D~ACH9FCONTRACT 30.Tho averments in paragraphs 1 through 29 are incorporated herein as ifset forth at length. 31,PlaintitTs and Defendant Radebach entered into a contract whereby Radebacb agreed to render competent legal services to Plaintiffs and the Plaintiffs agreed to pay Defendant for said competent legal services. 32,Defendant Radebacb breached the contract when he failed to properly advise the Plaintiffs as to the proper probate of the Estate of Jolm W. Frey: a. Advising the Plaintiffs that coun approval was not required prior to the ttansfer of Estate real estate to a co-executor. 6 b. Failing to advise the Plaintiffs to open an estate checking account. c. Failina to advise the Plaintiffs to keep time records. r"elpta and expenses concernina the administration of the IIstate and work on the fatalO real property separalO from other accounts and expenses. d. Failing to properly prepare the Plaintiffs for testimony In vulgus proceedings concernina the Estate. WHEREFORE, Plaintiffs demandjudament Igainst Defendant Radcbad1: a. In the amount of 530.500.00. the amount of the Iwcharge. b. Return of the 55,221.28 previously paid u Defendant Radebac:h's legal fee, c. Payment of executor's fee to Plaintiff Darllen Frey in the amount of 52,610,60, which has not been paid to her. d. Reasonable legal fcCl nccClsary to defend their Interests in the Estate of John W, Frey In the amowll of 59,179.50, e. Attorney's fees Incurred by the Estate to pursue the accounting and audit and to finalize the probate of the Estate in the amount of$14,922.oo f. Reasonable attorney's fees and costs for this litigation In accordance with 42 Pa.C,S.A. section 2503. a. Exemplary damages and punitive damages. h. InlOrest on the damages awarded. I. Such other amounts u the court deems appropriate, 7 . . '. ~ ~ lL~INTIFFS V. ETZWEJLF.R 81 ~ 33,Tho averments in paraaraphs 1.32 arc incorporated herein as if set fonh at lcnath- 34.Plaintiffs' retention of Robert O. Radebach is a retention of the Ocfendant law firm partnership of Etzweiler &. Radebach. Thus, Defendant Etzweiler &. Radebach is responsible for the acts, errors, and omissions of Defendant Radebach in connection with the legal services rendered to Plaintiffs, 35,As a result of the attorney-client relationship created by the above conduc:t of the parties, Defendant Etzweiler &. Radebach had a duty to represent Plaintiffs with the reasonable care, skill, and diligence possessed and exercised by the ordinary attorney in similar circumstances. 36,Defendant Radebacb's acts of malpractice as previously set fonh were within the reasonable scope of the business of Defendant Etzweiler &. Radebach. 37.Defendant Radebach's acts of malpractice amounted to gross negligence. 38, Defendant Radebacb's actions, omissions and errors were willful, wanton and malicious. WHEREFORE, Plaintiffs demand judgment against Etzweiler &. Radebach: a. In the amount ofS30,500.00, the amount ofth: surcharge. b. Return of the $5,221.28 previously paid as Defendant's Etzweiler & Radebacb leaa! fee, 8 c. Payment of executor's fee to Defendant Darlien Frey In the amoWlt of S2,610.60, which has not been paid to her from the ESlSle, d. Reasonable legal fees necessary to defend their InlCresu In the Eslll1C OUOM W, Frey In the amoWlt 0($9,179,'0. e. Anomoy'. fees incurred by the ESlSte to punue the accoWlting and audit and to fmalize the probate of the ESlSle In the amoWlt of S14,922.oo, f. Reasonable anomey fees and cost of lillgalion for this litigation in accordance with 42 Pa.C.S.A. .ection 2'03. g. Exemplary damages and punitive damages. h. Interest on the damages awarded. I. Such other amoWlU as the court deems appropriate. ~ ~REACH..2f'CONrRAC( fJ.AINTIFFS v. ETZWt:ILER '" ~DEQAgI 39,'J'bc avennenlS In paragraph I through 38 are Incorporated herein as if set forth atlenstJl. 40. Plaintiffs and Defendant ElZweiler &. Radebach entered Into a contract whereby Defendant Radebach agreed to render competent legal services 10 Plaintiffs. 41.Defendant Eczweiler &. Radebach is responsible for the acu, errors, and omiuiol1J of Defendant Radebacb In COMectlon with the legal services rendered to Plaintiff,. 9 42.Defendant ElZWeiler & Radebacb breached the contract when Defendant Radcbach failed to properly advise the Plaintiffs as to the proper probiIC oftlw EstalO of J"hn W, Frey, as previously set forth in Count II. WHEREFORE, Plaintiffs demand judament against Defendant EtzweUer A Radebach: L In the amount of$30,500.00, the amount of the surclwge, b. Rclllm of the $5,221.28 previously pllid as DClfendant Etzweiler &: Radcbacb' legal fee. c, Payment of executor's fee to Plaintiff Darlien Frey in the amount of 52,610.60, d. Reasonable legal fees necessary to defend their interests in the EstalO of John W. Frey in the amount of $9,179.50. e, Anorney's fees incurred by the Estate to pursue the accounting and audit and to t1nalizc the probate of the Estate in the amount of $14,922.00. f. Reasonable anomey fees and costs for this litigation in accordance with 42 PLC,S,A. section 2503. g, Exemplary damage.t and punitive damages. b. Interest on the damages awarded, I. Sucb other amounts as the court deems appropriate. 10 Respectfu1ly submitted, q ine M. Verney, ~(;;;;3 ~ lW South Hanover Street Carlisle, PA 17013 (717) 243.9190 Anorney for PlaintiffJ II ~ We verify that lho statements made in lho within Amended Complaint are tnHt and c:orrect 10 lho best of our knowlcdae, information and bellef. We understand that false ItalCmenlS herein are made subject 10 the penAlties of 18 PI. C. S.A. t 4904 relatins 10 WlSwom falsification 10 authorities. Daled: 1'2.- I- ';)000 ~J~ f1A~'~ Darlien Frey n " !"l EXHIBIT "A" ." . , 'U ~ JAftD OJ' DB U':AD OJ' JOJDI If. l'R.I1' , ~~-.nn . %JI DB c:ocJa OJ' COKw'II' n.IIU OJ' . cmg-.:.AJm COVftr, ,.... ~QnJ, . . 110. 21-t1.-U' OUad' ,""yU . . ORI'lWIIS' coon D%VU1011 pi HI p~~+rmr tflt) ~y~ eo-WDt!tPl't}1UI ,~.w s~Y. p.3. m'plTOR AND rnmml 011' CODR'l' Belon ~ GOU't JA Ua ~UUoA ol JlIltla rry u4 :rO..pIa ft7 (lMUd oa.r.) ..~V Z'....al ol Dul!eA H. ""' u4 Hiob...l :r. h~ .. ao-a8G1&~. of tb ~"'aapUOAed ..tat.. .. ~ · . JaeUiA, OIl t!ae _~~U 011 1leC--" 6, lIn. adel. wen t!aa Wn ud ~~ va.e U1d OA Apl'U 3, Uti. A bri.f faa1:U&1 ud prooedU'a1 bJ..tory of tJa.t.. _t~ JA .. ,o110V11. :roJaA .,..~ cUed. ua1:a1:a OA IIcw-~ 25, Ut1.. A~ ~ . I t.iae of JI.U death, :rob 7ny owed .."ral propertJ... !A tIa. !M)~u,Ja of W..t raJ,rrl..v, CWaQerl&Ad COUDty. ~. of U. , proper'U.. v&8 .old., ud aDo~er ..t a.ide to bou.. gul1u hq, tJw nrri.oriD, .,0118.. !ho G~er IU:opU't7, looateeS at 211-21' 1'0GrtA ,treet (~ J:.fe=ecS to .. -21'-218-), baa bMA tJw .a.b~ecR of dfDU1caA~ OODteAUOlh Af1;U .uab a&A.~ 1:JIa~ .u uJ,1:.ber J:e1....ut ADZ' of reDori, ~e1 ftey, :ro!m .,..q'. .01' &Ad OO""UeG1ItoJ:, ar.rU9.c:l Ue .al. of 211-218 to ~.u &D&I b1II =-otUr, JU,abari ftq. ~bJ.. .&1. took pl&Cl. v1t.l&oat ~ , . ~ appnl'f'al ~ b7 tIa. ~t., Z.tat.. aac:l I'idacd -Pie. CDd. .t .ecrtJ.oA 3356. 20 la.C.I.A. 53356. Fartbemon, ~ uaufu of 2115-218 va. aad. without the lMIa.tJ.t ot aD aPF,1-t.l to deh",,1". the cw:nAt ...alu. of Ue PJ:OpU"ty, wbJ,oh aadcnabtedJ.7 voaJ,c:l ban ~eA =dered ~ tbJ,. c:out. . . . . .. , . , , '10. 21-11-83' OUJWJ.' COt1M' DrnJIOI1 .. ZA Ut7 eftAt, &A uaOQA~ ... flled, a. VC'e =~eGti ou ~.~, &Ad tJa.UI oow:t appoJ.Atecl loA awlLtO&', st.pheA Ioff, .."., vJao tUed bU npen OIl o1\1A. 11, ltJ4. TbJ.. OOll.R tJieA cI.ated tM ...,uou tNt wn fUecl to the audJ.~'. ~.pon J.A .. opfotfoa &Ad on" cl&~eel Apz-U 5, 1115. OG .nall 11, 1115, a aJ.utJ.OA ".. J..8Iled aJlOA ~. aG- I" n'kln W .Jaw ou.. vial ~er Jwl Aot c~Ued "J,tJi t!ae .,....f~'. n,on &Ad why they llaoald Dot lie l'uacmid 1.1 exeoat=.. ~ .ta~ UoftI, ve held a b..dDI OD tho.. b.a.. OIl 1leG-~ ~,. 11'5. ft. ngo.J:d of ~t b.uiDf bl}fcat.1 th. followJ.Al. co- , exeG'D~ KLcrJaul .,ny te.tJ.fiacl tlaat b. Jwl D~ followed the cU.not.1ou of t:la. aud.f.t.0&"1 :.pol't, avlll thollfb t:laa npeR bad . Il..D oOAttwrd ~ t.JU.a covrt. Id.cbae1 ~e'1 &110 .u~ed that. be cUd AGt. opIA loA ..ute cIaeoJciDV &ClOOllDt, that. ba ucl U. 00- axecna~ pa1cI ..ut. apeD... 01&t. of tb.u ow fUDela &Ad upeatecl ~ " n.1aIManed, &Del t.1a&t. b. Jwl IlO J.elea "bat. to cia 1A carie&' t.o , D .late .-hf-uatJ.oA of ~a .IUt... 1J.AtL11l, K1ob..l 'ftq .~~'"'1edted tJaat. he bad a=&AVK tha ,&1e of 216-218 v1t.hoat. D~ app:anl OZ' a eanlDt appzod.I&1. .. .. . . CO U[eG'Qt.o: D&Z'U.a Frey, the 1a:vJ,9'LDr .peUle, al.o telrt..1t1ed at ~. DeGell1bu 4, 1"5, laeuJ.AV. Ihe atat.eel that. Ibe dU DOt. uecnlte, flAY clOGUMDt. tor the .&1. of 216-218, &Del tJaat. .be b&4 D01:hiD9 to do "J,tJa flAY l'lDtal of that. property. 8lae &180 Rated tJaat. .Jut cUd Dot bow U loA e.ut. checJciDg &CC0IIDt. bad buD optllled. . 2 ~ ~ ~ ' ..... . ,...... ~....- ~ . ~ . . . . . . . . . .0. 21-U-'3I OUIWIS' COOR1' D1V%SIOJr' , .. A petJ.tJ.oA to ~UOY. AD axeoa1:= J,. fOVUDe4 ~ tM h'obate, lnate. ad J'U11OUrJ... Cocle at .eGtJ.0A' 31.2 &Ad 3183. ID oriu ~ e'NA ..dt a bea&'iA, Oil no!a a petJ.tJ.04, ~. lIOYaIlt _R alJ..,. u.ru1:6 gTOlIAU tozo ZOUlOYal ol th. exeoutOZ'. Krlat:. a'l. ~ 3.5 'a.,gpez. 313, 318, 521 A.2d 525, 527 (1"7). !be ~ t= nIIO'f'al at L..1I. bu., 1;&kell lroa .eGt..f.OA 3182 an. (1) .. .vaet:J.DV OZ' .J.--".giAg t:la. ..1:6t., J.. OZ' U "n..ly ~ baa... LaaOl..llt, o~ Ua faUecl to perfom u'1 dg1:7 ~..d ~ la"', OZ' . . . . . . . * . . (5) WeD, for uy othu na.oa, the .f.Atu..u ol 1:JIe ..tat. an l1Ply to be ~"p&l'dJ.a.d ~ bJ.. Oo.a1:iAUDCI. .f.A otfJ.ae. 20 :ra.C.'.A. '3182. IA tM. 0"., the al-.......gaaaAt of the , ptate 18 olear. I'.f.nt &Ad for8lllCl.t, D.J.thU ot the 00 uecnaton Dove wbat !au HJilpaAed ri~ tIl. ..tat. tllu. tar, &Dd AeJ.thU h--- bow to ~leu the ~14.hf.tr.t.10A. AI for DuUa ftq, we un 110 V-,.- .1.a ~~g Iler tZ'Clll the .(I_4..f,uatJ.OA of the u1:&1:., .1ac:e bU' J.AvolnMAt thenLA bu b..1l p.dpho:a1 at ~. K!c:Jaul Fn'/ t..WJ.ecl tIlat he H' Dot opeDecl all .Rat. Il'b","'4"g AOOOIUIt, &DC! fr..ly aclcl!oovledg.d ~t h. eDg&ge4 .f.A .... . ..If d.-l4..; v1th zo.;ud to 21'-218. %A add.i.tJ.oA to th. abov. d.8C~J.bed 1Ii.UA&V-ut, we beU... t t:M iAten.t. ~ the ..tau viU b. j.opud.LaK by aUGV1Dt ~ ad Dull'A. 'trey to coatJ.Av.e al co-executor.. aued U~ip perfct--..o. thv.. fez, ucI their t..UmoAY, we haft ~ ooatid.llo. that they oouleS c0IIIP1.t. .~fJl!auatiOA of the 3 , . . o , . . " 0 . NO. 21-Jl-836 ORPBANS' COUR~ DIVISION ..tAt. in a timel~ and prop.~ fa.hion. Whil. w. ~.aognia. the o po..~illty that the cO..JC.cuto~. u~ have h..n the vict.iu ot poo~ 1.9'Al adda., the fact ~e....,1n. that the ~..pondbWtr tor ..tat. admfftl.tration li.. with the ex.cuto~, and no OAe .l.e. ~h.~.for., v. tJ.nd abundant call.. to remove HJ.o~a.l '&Ild DazUen , P~.~ .. co-uecutor. ot the e.tat. of .:John Fl:.~. Next, v. mu.t.addz... the i..Il. of a .urob&.J:ve. In hi. r.po" , thl aucU.tor oz:deZ:ld that an~ cU.ftulnoe betweln the amount paid tOI: 216-211 ($44,500) and the apprai..d valu. would he & .llol'Oh&rV. to h. paid back to the ..tat. h~ the perlonal :np~...ntaUYI. ~hJ.. court oonti:med that oz:dl~ ot thl &1lcU.to~ .i.n ow: opWon &Dd oz:del: of Apdl 5, 1995. Unto"u.nate1~, althougb not'.llI:pl:i.ingly, thll:. are oomp.ting &Pp~ai.&11 at i..ue hez:e. One appz:ai..l, Clompleted on April 27, 1993, ..t the o . value of 216-218 at $75,000. ~he CO-IXIClutOI:. Cllaim that th.~ . , VI:. unavue of that appn.t..&1 at the t.t..Jno that the .&11 ot 216. '" 218 wa. effected (Jun., 1993). A .eoond apPZ:Ai~d1, in I:I.pon.. . to the peUtion to l:emQve thl Clo-execlltoz:., ..t the ValUI of the , , , p:ope"~ at $90,000 a. of NqYemb.~ 9,.1995, . -.. . PetiUoAU. DOlt .elk a .w:ch.~ge in the &IIlOunt ot the cU.ft.~ence blbe.n the eale price of the hou.. and it. appr&J...d value, AI ordered hy the auditoz:. Xt t,al1. upon u. to dltlJ:1d.ne vhJ.ch apPI:Lb&1 to choo... Slcau.e the 8&11 of the p~opeJ:'t~ took o plaoe in .:Junl, 1993, we vill II.. the $75,000 aPPI:&J..al fOol' the of the .w:chug.. Thez:efore, we w1.11 order thl ~r.ona1 . . ~ . NO. 21-11-836 OJUlBANS' C:OUR'1' D.tVIS%ON , ,. repre.entat!v. to pay $30,500 ($75,000 - $45,000) !ato the e.tat. a. a .urch&rg. on 216-218. P.titionar. al.o leek to add oth.r &mount. to the .uraharg., including attorn.)" l..., At thb tJJa., .f.JI vbv ol Ow:' &-uoval of the oo-n.outor., v, ,vill not 1.Y)' a furth.r .urcrharg.. w. wW how.var, ono. again order that the auditor'. r.port, croalL%m.d in Oll%' opinion ol April 5, 1995, 11. oompli.d vith, in lull, by all parti... rindl)", the aucU.tor!. report h.r.in ord.r.d .011I. b.n.tioiari.. of JohA Prey" vill to r.turn to the ..t&t. oartaiA .W111 of IIIOft.)" advAIlcr.d to th.m again.t the.tr .har... . 1'11... lIen.ficriari.., through the co-.x.cutor., .ugg..t that the &IIlOunt. th.)" hay. 1I..n ord.r.d to r.turn 11. d.ducted fl'Olll th.ir .~ of , the ult:.Llllate cU.trJbution of the ..tat.. In vbv ot the length , and complioation. of the acllllJ.nJ..tration, of thJ.. ..tat., ". w.ul agr.. to .ucb a .y.tlllh Bowev.r, v. vi1'l require that the. final . . , cU..trillution of the ..tat. be approv.d 11)" thi.~~~urt lI.tor. any , . payment b _d.. l'urth.rmore, the $30,500 .urcharg. lIlU.t !:Ie paid lIack into the ..tat. and cannot 110 d.ducted from the .!lara ot any , lI.n.fioiary. -" . Da.ed on the toregoing, w. .hall .nter the tol10w.f.JIg ordar. '. . . , . 5 000189a , . . . NO. 21.~1.836 ORPHANS' COUR~ DIVISION , .. 9RI)ER .Nfl) )lOW, 1;h.i...1.AI1 ci&y o~ HAY, 1996, it i. 0:cie:1ci and cUzeotlel tIlatl 1. &Clb&e1 r:IY anei DU'lJ.ln F7:ey !:Ie :emov.el a. ClO- execnltOJ:' o~ the ..tatl ot Johu r:.y. 2. &Clhall r:IY &Del lUClhU'ci r:lY .ball pay a .W:ObarlJe, wJ.t!U.D dxty (60) clay. o~ ue ci&te o~ thi. criar, of $30,500 to tile ..tate ba..el on tbe.iz purClha.. o~ 21'-218 ro~ &1:%..t, W..t raJzvJ.lIW, CWllbe:l&Dci County. " . .' 3. 1o:Ay qualifieei, J.Dte:..teei party mAY petJ.tJ.oa th. RegJ..tar o~ WJ.ll. ~o: 1ette:' o~ acimJ.ni.tr:atJ.on J.A O"ar to oomplete tile a~mi~~.tratJ.on of thi. e.tate. 4. When llttl:' U. V:anteei, all eioClWdnt. :e1atJ.zi9 to the e.tatl .h&J.l !:Ie tQ%neei ove: to the nlW adM.~~.tratoJ:. 5. Money acl.VADCleei to the !:IlnanCliarJ.e. !:Iy tile ..tate agaJ.ut thlJ.: .hU''' uy !:Ie eieeiuClteei ~%'C11 tile ulti.lll&te .b&%'e of tho.e !:IenetJ.oJ.&.1:J.e. at the tl.llle o~ :tJ.Da1 cU..t%,~utJ.on. 6. No :tunc!1 .hall !:Ie cU..t%'~uteel ~J:om thJ.. ..tat. to any hen.fioJ.&:Y unt'u fJ.Dal cU..t%'~ut1on J.. app%'ovecl. by tbJ,. oourt. Ia that veJ.D, the ac!mJ.DJ..trato%' o~ thl ..tate, wbea :1t J.. concluded, .hall .ubm1t a pJ:opo.eei :tJ.nal cU..t%'~utJ.oa to thi. court fo%' app%'oval. sy the Court, 1,1 Baro\p E. S~ Ba%'old B. Sh..ly, P.:. . !'ranoe. B. Del DUCla, ZlquJ.%'e :For thl 'ItJ.tJ.on.%'1 Ro!:l.rt G. 1\&d.!:Iaoh, ZlquJ.%'1 ror: thl Rllpond.ntl XevJ.D s. :Bl&Dton, Blqu.u:1 !'or the Zltat. Stepb.a Bog9, B.qui;e court-AppoJ.nteel Auc:U.tOJ: . Illel _.' . 6 000190a .' - . 1 hereby certify that a true and correct copy of the Amended Complaint wu ICrved on the followlnS person by first class mail, postage prepaid on the date Indicated: Steven 0, Costello, Esquire P,O. Box 10248 Lancaster, PA 17605-0248 Date: p. ~ I ~t) 0 q line M. Verney, Esquire 1#2 67 44 South Hanover Sl1'eet Carlisle, P A 17013 (717) 243.9190 Attorney for NalW'lll Mother " EXHmIT "B" 8. It it admitted that the Estate consisted ofthreo l'ClIidential proportios in the Borough ofWost Fairviow, Cwnberland County. (410 Front Strcot, 318 Fourth S:rcot, 2161218 Fourth Streot), bank accounts totaling approximately $15,885.18 and two vohicles. All other avonnonts lIl'll doniod. 9. Denied as stated. At all timos material hereto, Defendants exorcised ordinary knowledge, skill and care that would normally be exercised by members of the profession under same or similar circwnstances. 10. Denied. The custom practice of the law fum ofEtzwciler & Radebach was to provide the personal repreaentatives of an estate with a list for income and expenses. For income, the sheet would show the date from whom the income was received, what the income was for and the amounL For expenses it would show the date of payment, to whom it was paid, the reason for the payment and the amount of the payment. 11. It is admitted that in June of 1993, Michael Frey and Darlene Frey, as co-executon. sold 2161218 Fourth Street to Michael Frey and Richard Frey for the appraised value at that time of $44,500.00. All other allegations arc denied. 12. Denied as stated. Be.:ause all heirs were informed of the appraisals. and none of the heirs had any objection to the appraised values for any of the properties, court approval was not required heeD".... of the agreement of the heirs with respect to the sale of the 2161218 Fourth Street property to Richard H. Frey and Michael J. Frey. All other allegations arc denied. .3. 13, Denied. Tho Opinion and Order of Court arc separato documenll which speak for themselves. 14. Denied. Tho Opinion and Order of Court arcseparato documcnll which speak for themselves. IS. After rCllllOnablo Investigation, Answering Defendants arc withoutlcnowledge or Information sufficient to fonn a belief as to tho truth of tho avenncnts of this paragraph and, accordingly, deny the same and demand strict proofthereofat trial, ifrelovant. 16. Denied III ststed. It is admitted that Etzweiler & Radebach received payment of $5,221.28 for partial services pcrfonned with respcctto the settlement of the Estate. All other allegations aro denied. 17. Denied. a. Denied. b. Denied. c. Denied. d. Denied. 18. The avCm1cnts set forth In this paragraph arc erroneous conclusions of law to which no response is required under tho PCIUI8ylvanla Rules of Civil Procedure and thoy accordingly arc deemed denied and proof thcrcof is demanded. By way of further responso, Answering Defendants -4. deny each and every avennent of neglisence and/or srosa neglisence and actionable omisaiODl, actions, and/or errors. 19. The avennentl act forth in this paragraph are em>neous conclusions onaw to which no response is required WIder the Pennsylvania Rules of Civil Procedure and they scc:ording1y are deemed denied and proof thereof is demanded. By way of further response, Answering Defendantl deny each and every avennent of actionable conduct, omissions and erron and deny the allegations of willful, wanton, malicious and outrageous and reckless disregard and indifference and further deny the resulting damages and avcnnents of punitive damages. 20. Denied. The avenncnts act forth in this paragraph are erroneous conclusions of law to which no response is required WIder the Pennsylvania Rules of Civil Procedure and they accordingly are deemed denied and proof thereof is demanded. By way of further response, Answering Defendants deny all allegations of negligence, gross negligence, willful, wanton, malicious, outrageous and reckless conduct and further deny the resulting damages. COUNT 1- NEGLIGENCE PLAINTIFFS VI. ROBERT G. RAnF.BACn 21. Answering Defendants incorporate herein by reference their responses to Paragrapha 1-20 to Plaintiffs' Complaint as though same were fully set forth herein. 22. Denied as stated. It is admitted that Plaintiffs retained Robert G. Radcbach, Esquire, to assist with the settlement of the Estate of 10hn W. Frey. The remaining allegations are denied. -5- 23. Denied. The allegations set forth in this paragraph arc erroneous conclusions of' law to which no response is required under the Pennsylvania Rules of Civil Procedure and proof thereof is demanded. By way of further answer, Defendants deny all allegations of an alleged breach of a duty to Plaintiffs. 24. Denied. The avennents set forth in this paragraph are erroneous conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. By way of further answer, the Court's Opinion and Order are separate documents which speak for themselves. 25. Denied. The avennents ofthis paragraph are erroneous conclusions of law to which no response is required and strict proofthereofis demanded. By way of further answer, the Court's Opinion and Order are separate documents which speak for themselves. 26. Denied. The avennents of this paragraph are erroneous conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure and they accordingly are deemed denied and proof thereof is demanded. By way of further response, Defendant denies each and every avennent of causation and resulting damages set forth in this paragraph and, after reasonable investigation, currently is without knowledge or infonnation sufficient to fonn a belief as to the nature and extent of Plaintiffs' alleged and, accordingly, same are denied and proof thereof is demanded. 27. Denied. The avennents of this paragraph are erroneous conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure and they accordingly arc -6- deemed denied and proof tI1crllof il demanded. By way of further rcsponac, Defendant denlOl each and every averment of causation and resulting damagel let forth in thil paragraph and, after reasonable inveatigation, currently is without knowledge or information lutlicientto form a belief as to the nature and extent of Plaintiffs' alleged and, accordingly, same are denied and proof thereof is demanded. 28. Denied. The averments of this paragraph are erroneous conclusions of law to which no resPOnac is required under the PeMSylvania Rulea of Civil Procedure and they accordingly are deemed denied and proof thereof is demanded. By way of further reaponse, Defendant denies each and every averment of negligence, causation and resulting damagea set forth in this pf4'llgraph and, after reasonable inveatigation, currently is without knowledge or information sutlicicntto form a belief as to the nature and extent of Plaintiffs' alleged and, accordingly, same are denied and proof thereof is demanded. 29. Denied. This averment is an erroneous conclusion oflaw to which no responac is required and it accordingly is deemed denied and proof thereof is demanded. By way of further response, all allegations of negligence, causation and resulting damagea are denied. WHEREFORE, Answering Defendants demand judgment in their favor and against Plaintiffs. Further: a. judgment is demanded in favor of Answering Defendants and against Ptaintiffs; .7- b. judgment II demanded In favor of Answering Defendanll and against Plaintiffa as Plaintlffl have failed to let forth a legal basil to recoup previously paid legal fees; c. judgment Is demanded In favor of Answering Defendanll and against Plaintiffa; d. judgment il demanded In favor of Answering Defendants and against Plaintiffa as case law does not support the sward oflega! fees; e. judgment Is demanded in faVOr of Answering Defendants and against Plaintiff a as there II no legal basil to award attorney's fees; f. judgment Is demanded In favor of Answering Defendants and against Plaintiffs as exemplary damages and punitive damages are not warranted In the Instant litigation; g. judgment Is demanded In favor of Answering Defendants and against Plaintiffs II demanded; h. judgment Is demanded In favor of Answering Defendants and against Plaintiffs; COUNT II - BREACH OF CONTRAer PI.AINTIFF~ VI. RORF.RT G. RADF.RACH 30. Answering Defendants Incorporate herein by n:fercnce their responses to Paragraphs 1-29 to Plaintiffs' Complaint as though same wen: fully set forth herein. .8- 31, Denied. Defendant Radebach wa retained by Plaintiffs to wist in tho sottIcment of tho Estate, Answering Defendants were not retained or hired to pertonn any specific actions. All other allegations are denied. 32. Denied. The averments set forth in this paragraph are erroneous conclusions oClaw to which no response is required under the Pennsylvania Rules of Civil Procedure and they accordingly are deemed denied and proof thereof is demanded, By way of further response, Defendants deny each and every avennent of actionable conduct, proximate causation, breach of contract and resulting damages set forth in these pal'agraphs. a. Denied; b. Denied; c. Denied; d. Denied. WHEREFORE, Answering Defendants demand Judgment in their favor and against Plaintiffs: a. judgment is demanded in favor of Answering Defendants and against Plaintiffs; b. judgment is demanded in favor of Answering Defendants and against Plaintiffs II Plaintiffs have failed to set forth a legal bais to recoup previously paid legal fOOl; .9- 3'. Denied. Tho avmnenta lot forth in this paraaraph are conclUliOlll of law to which 110 roaponao it required under tho Ponnsylvania RulOl of Civil ProcedUl'll and they accordingly are deemed denied and proofthorcofil demanded. 36. Denied. Tho avennenlS set forth in this paragraph are co~clUliona of law to which no responac ia required under tho Pennsylvania Rules of Civil ProcedUl'll and they accordingly are deemed denied and proofthorcofia demanded. 37. Denied. The avmnenlS act forth in this paragraph are conclusions oflaw to which no response ia required under the Pennsylvania Rules of Civil ProcedUl'll and they accordingly are dcomed denied and proof thereof ia demanded. 38. Denied. The avennenlS act forth in this paragraph are conclusions of law to which no response is required under the Pennsylvania Rules of Civil ProcedUl'll and they accordingly are deemed denied and proof thereof ia demanded. WHEREFORE, Answering Defendants demand Judgment in their favor and qainat Plaintiffa: a. judgment is demanded in favor of Answering Defendanta and "Illlnat PlaintitU; b. judgment ia demanded in favor of Answering Defendants and "I'm. Plaintiffa as Plaintiffa have failed to set forth a legal basia to recoup previously paid legal feel; -11- deemed denied and proofthercofia demanded. By way oft\uther rcsponao, Anlwerins Defcndanta deny each 8J\d every avcnnent of actionable conduct, acta, errors and omissions and proximate causation 8J\d alleged resulting damages thereof. 42. Denied. The avennents set forth in this paragraph arc conclusions oflaw to which no response is required under the Pennsylvania Rules of Civil Procedure 8J\d they accordingly arc deemed denied and proof thercof is demanded. WHEREFORE, Answering Defendanta dem8J\d Judgment in their favor and against Plaintiffs: a. judgment is demanded in favor of Answering Defendanta and against Plaintiffs; b. judgment is demanded in favor of Answering Defendants 8J\d against Plaintiffs as Plaintiffs have failed to set forth a legal basia to recoup previously paid legal fees; . ~. judgment is demanded in favor of Answering Defendanta 8J\d against Plaintiffs; d. judgment is demanded in favor of Answering Defendanta 8J\d against Plaintiffs as case law docs not support the award oftegal fees; e. judgment is demanded in favor of Answering Defcndanta and asaJnat Plaintiffs as there is no legal basis to award attomey's fees; -13- f. judgment is demanded in favor of Answerina Defendants and aaainat Plaintiffs as exemplary damages and punitive damages are not warranted in the inslantlitigation; g. judgment is demanded in favor of Answering Defendants and against Plaintiffs is demanded; h. judgment is demanded in favor of Answering Defendants and against Plaintiffs; NEW MATTER 43. The responses contained in paragraphs 1-42 of Defendants' Answer are incorporated herein by reference. 44. The Plaintiffs have failed to state a cause of action upon which relief can be granted. 45. Answering Defendants were not negligent. 46. Any acts or omissions of Answering Defendants alleged to constitute negligCllCC, carelessnCII or recklessness were not substantial causes or factors of this incident identified in Plaintiffs' Complaint and/or did not result in the damages alleged by the Plaintiffs. 47. The incident and/or damages described in Plaintiffs' Complaint may have been caused or contributed to by the Plaintiffs. 48. If Plaintiffs' sustained the damages alleged, which damages are specifically denied, said damages may have been the result of the negligent or carclCII acts and/or omissions of Plaintiffs and/or other persons and/or entities over whom Answering Defendants exercised no control. -14- 49. The negligent acts or omiuions of other individuals and/or entities may have constituted intervening superseding causes of the damages alleged to have been sustained by the Plaintiffs. Furthennore, Answering Detendants had no control over such acts or omiuions and such acts or omissions were not due to or caused by default, lack of care, negligence or breach of any duty by Answering Defendants. 50. The incident and/or damages alleged to have been sustained by the Plaintiffs were not proximately caused by Answering Defendants. 51. Plaintiffs' claims may be barred by the Doctrine of Asswnption of the Risk. 52. Plaintiffs' claims may be barred by the Doctrine of Contributory Negligence. 53. Plaintiffs' claims may be barred or reduced by the provisions of the Pennsylvania Comparative Negligen.:e Act, 42 Pa.C.S.A. ~7201 ell seq., the relevant portions of which are incolpOrated herein by reference as though same were more fully set forth at length herein. 54. At all times material hereto, Defendants exercised ordinary knowledge, ilill and care that would normally be exercised by members of the profession under same or similar circwnstances. 55. Plaintiffs failed to mitigate any damages allegedly sustained. 56. The Plaintiffs' claims and/or request for damages is barred or limited by and/or precluded by the Doctrine of res Judicata and/or Collateral Estoppel. 57. If there is a judicial detennination that Pa. R.C.P. 238 is unconstitutional, said constitutionality being expressly challenged is a violation of the due process and the equal protection -15- clauscs of the 14th Amendment of the United States Constitution; 42 U.S.C. G 1983; Article I, Section 1,6, 11,26; and Article IV, Section 100c) of the Pennsylvania Constitution, then paymcnt of intcrcst shall be suspended for any pcriod of dclay not occasioned by Answering Defendanla. 58. The Plaintiffs' claims may be barred by the Doctrine of Relcase. 59. Plaintiffs' claims may be barred by the applicable Statute of Limitations. WHEREFORE, Answering Defendants respectfully request that Plaintiffs' Complaint be dismissed in its entirety. POST & SCHELL, p.e. By: 10# ANNE E. ZERBE 10 #79151 Date: ~/.2& I 0 I , -16- C-F.RTIFlC-ATF. OF SF.RVleE I, STEVEN D. COSTELLO, ESQUIRE, attorney for Defendants, ETZWEILER & ASSOCIATES, f/kJa ETZWEILER 8i. RADEBACH, and ROBERT G. RADEBACH, hereby state that a true and correct copy of the foregoing document(s), senl by first-class mail, postsge prepaid on the date act forth below, was served upon the following individual(s): Jacqueline M. Verney, Esquire 44 South Hanover Street Carlisle, PA 17013 POST & SCHELL, P.C. By: STE N D. ID #37288 ANNE E. ZERBE ID #79151 Date:~ " . ~ERTI~ICATE OF SERVICE I, Jacqueline M. Verne)', Esquire, anome)' for the Plaintiffs, hereb)' c:ertitles that a true and c:orrec:t c:op)' of the Briefwas served on the following person b)' first c:1888, U.S. Mail, postage prepaid on the dale lndic:ated: Steven D. Costello, Esquire P.O. Box 10248 Lanc:aster, PA 17605-0248 Date: /0 - ('1 -u, ~..~.L acq eline M. Verne)', Esquire /l2m7 44 South Hanover Street Carlisle, PA 17013 (717) 243-9190 Anome)' for Plaintiffs 1114 MICHAEL J. FREY AND DARLlEN FREY COEXECUTORS OF THE ESTATE OF JOHN W. FREY : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA '. i ; V. ETZWEILER AND RADEBACH AND ROBERT G. RADEBACH : NO. 97.6091 CIVIL TERM IN RE: MOTION FOR JUDGMENT ON THE PLEADINGS OF DEFENDANTS BEFORE BAYLEY. GUIDO. JJ. ORDER OF COURT AND NOW, this 30fll day of OCTOBER, 2001. defendants' Motion lor Judgement on the Pleadings is GRANTED in part. Judgment in favor of defendant and against plaintiffs is GRANTED in connection with all claims for damage to the Estate of John W. Frey, deceased. Judgment on the pleadings with regard to any damage ('r claims for loss sustained by the plaintiffs individually is DENIED. :sld r~\ & Jacqueline M. Verney, Esquire Anne E. Zerbe, Esquire ... POST & SCHEU, P.c. BY: MICHAEL A. BOOMSMA I.D. # 56062 1857 WILLIAM PENN WAY P.O. BOX 10248 lANCASTER. PA 17605-0248 (717) 291-4532 MICHAEL 1. FREY. and DARLlEN FREY, Coexecutors of the Estate of John W. Frey, Plaintiffs, ATTORNEYS FOR DEFENDANT ETZWEILER & ASSOCIATES, flk/a ETZWEILER & RADEBACH, and ROBERT G. RADEBACH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA vs. CIVIL ACTION - LAW ETZWEIl.ER & RADEBACH and ROBERT G. RADEBACH, No. 97-6091 JURY TRIAL DEMANDED ~ dt /" J OROF.R h-.~! -M "J " , (J ANDNOW,this~7 day of NoV{.. l./L .200I,theorderofOctober30, 2001 Defendants. is rescinded for purposes of clarification. Defendants' Motion for Judgment on the Pleadings is GRANTED in part. Judgment in fav.Jr of Defendant and against Plaintiffs is GRANTED in connection with all elaims for damages to the Estate of John W. Frey. deceased, pled in Plaintiffs' Second Amended Complaint, Count I. paragraphs 29(b),(c),(e), (f). (g) and (h) including the corresponding paragraphs where same are reiterated in Counts II, III and IV. Judgment on the pleadings with regard to any damages or claims for loss sustained by the Plaintiffs individually is DENIED. specifically, Count I paragraphs 29(a) and (d) and the corresponding paragraphs where same are reiterated in Counts II, III and IV. BV?Pt Edward E. Gui~o. J. \\ I L crp.l , 1) Jf'I().JJ-OJj ".~7.0,' {RXS ATTEST: Jacqueline M. Verney, Esquire Michael A. Boomsma, Esquire ./III POST & SCHELL. P.C. ATTORNEYS AT LAw 1857 WIL.L.IAM PENN WAY P.O. Box 10248 LANCASTER. PA 17e05.0248 17171 2Q 1.4!5.JZ fACIIIIot'L.I. 171 71 ZQ I .1 eoQ I 800 VOHN' K[NN(CY BLVD PHILAOlLPHIA. PA 18103-''''0 1;lIOI!"J7'IOOO ,,,. Ill" 581.''''.... CHO I DOMINION f'OWlR el' UBa:Jm' AVr. . sum '800 PITT'IBUAOH. PA 18iU')IIO ,""'I.,7,.U.,. 'A)(; I'" 'I .'7-'81) .140 QRAHDVltw .......ENUE CAMP HtU.. PA I 10 I I ""1131-1870 '.6.)11"" 7JI IQI. Il'" S ClD4ACRU"T DOULlVAAO SUIT"E 300 AUZNmOWN,PA 18103 IOlOI..:I3-QIIJ,3 "AX, tOIO.4,.)-:Ut7. ADAMS PlACE . SU~ .) 70 I 'Mtq HORSI IltOAO YOOftHlU. KJ oeo.., ."elel"aGOO 'IUC: I.... .".",..., November 21,2001 MeHAlL A. BooM.~ 171" 301-4421 ~1MI@ftl:MntcHC~" (;(lM Hon. Edward E. Guido. Jr. Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 RE: Frey vs. F.tzweller & Radebaeh, et al. Cumberland County CCP No. 97-6091 Dear Judge Guido: This acknowledges receipt of your October 30, 2001 Order which grants in part and denies in part Defendants' Motion for Judgment on the Pleadings. Because Plaintiffs' Second Amended Complaint includes a list of alleged damages which may apply to the Plaintiffs individually and to the Estate, it is respectfully requested your October 30. 200 I Order clarify those damages. Since the issuance of your Order, myself and Plaintiffs' counsel, Jacqueline M. Verney, have had a chance to discuss your Order and agree that it would be helpful to the parties that the damages for which your Order applies be specified. Accordingly, please find a proposed Order which reflects the understanding reached between the parties. I await your Honor's response. Respectfully <t,'~~~...'''''m. MAB/sm cc: Jacqueline M. Vemey, Esquire () CJ C:i C. r..; " -Or' , :,~ ~:;~ ~-; , ') in en f~: , .., ,. -n , ~<; C , ,},. . ;:'J :.1 . :11 ~{'1 :~ '-, n .' ...,...