HomeMy WebLinkAbout08-30-07
IN RE:
CLAIR BEINHOWER,
IN THE COURT OF COMMON PLEAS
OFCUMBERLANDCOUNT~
PENNSYL VANIA
ORPHANS' COURT DIVISION
Deceased
No. ) {- 07 -{)?J2<i!
PETITION FOR CITATION TO SHOW CAUSE WHY AN ACCOUNT
SHOULD NOT BE FILED IN ACCORDANCE WITH 20 Pa. C.S.A. & 5610
The Petition of Terri Cassel, Executrix of the Estate of Clair Beinhower, (the
"Petitioner"), presented through her attorneys, The York Legal Group, L.L.C., pursuant
to Section 711 of the Pennsylvania Probate, Estates and Fiduciary code, respectfully
states to the best of her knowledge, information and belief as follows:
1.
On March 17,2007, Clair Beinhower, (the "Decedent"), died, a resi<teyt of
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Letters Testamentary were granted by the Register of Wills of Cumbe~d
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County, Pennsylvania (the "Register) to Petitioner, Terri Cassel, 100 Kenny a
Lane, Martinsville, Virginia, 24112, on or about April 30, 2007, appointing her to
serve as the Executrix (the "Executrix"), ofthe Estate of Clair Beinhower,
deceased (the "Estate"), which appointment remains in effect.
3. The Petitioner is not an heir of the Estate. Nancy Beinhower, Petitioner's mother
and wife of Decedent, is the sole beneficiary of the Estate. Petitioner has
standing, however, in her capacity as the Executrix of the Estate. Petitioner also
serves as a Co-agent for her mother under a Power of Attorney.
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4. Petitioner demanded payment of an annuity policy with Washington National
Insurance Company, policy # V AR 2347, in the approximate amount of $36,500,
which named Nancy Beinhower as sole beneficiary.
5. Petitioner demanded payment of an annuity policy with Jefferson Pilot Financial,
policy number EN5328266, in the amount of $16,650, which named Nancy
Beinhower as sole beneficiary.
6. Petitioner was informed by each of the above-named companies that Decedent's
son, Barry Beinhower (" Agent"), who served as the Decedent's agent under a
Power of Attorney (Exhibit 1) for a brief time prior to Decedent's death, changed
the beneficiary designee on both annuities to himself, Decedent's step-daughter
Nancy Rogowicz, and Ms. Rogowicz's daughter, Courtney Myers, two days prior
to Decedent's death.
7. Each of the above named companies have retained the monies in question, due to
the competing of the Petitioner and Agent, and plan to file an Interpleader Action
with the Honorable Court.
8. Prior to his death, Decedent was in the last stages of melanoma liver cancer and
his mental capacity was diminished to the point that he was unable to manage his
financial affairs and assets.
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9. Agent removed Decedent from hospice care at Manor Care Facility in Camp Hill,
Pennsylvania on March 12,2007, and stayed with Decedent in Decedent's home
until his death.
10. After Decedent was removed from Manor Care, Decedent was under control of
his Agent until his death on March 17, 2007.
11. Petitioner believes and avers that Agent breached his fiduciary duty to act in the
best interests of the Decedent and failed to exercise his powers granted under
Decedent's Power of Attorney for the benefit of Decedent's known estate
planning and probate with respect to the disposition of the Decedent's Estate. All
assets of the Decedent were intended for the care of Decedent's wife, Nancy
Beinhower.
12. Petitioner believes and avers that Agent exercised undue influence over
Petitioner.
13. Petitioner believes and avers that Agent engaged in self-dealing.
14. Petitioner has requested that Agent agree to the payment of the funds in question
to the original beneficiary of the annuities, Nancy Beinhower. Agent, through his
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counsel Bratic & Portko, has failed to relinquish the funds in question to Nancy
Beinhower.
15. The Petitioner desires and demands the filing of a full and accurate accounting,
under oath, pursuant to applicable court rules, regarding the agent administration
of Decedent's affairs, in order to present certain matters and frame certain issues
involved in the administration of the Estate, which by way of further objections, if
necessary or appropriate, can come under the scrutiny and determination of this
Court in appropriate further proceedings involving any party in interest.
16. The Petitioner believes and avers that, only through the production of such
accounting and the processing of this matter under the Court's supervision, can
the concerns of the Petitioner be addressed fairly, and adequately.
Respectfully submitted,
Dated:
g -)1-01)
By: - 'JlJ.
eline . Welby, Esquir
preme Ct. J.D. # 57672
The York Legal Group, LLC
Harrisburg, P A 17110
(717) 236-9675
Attorney for Petitioner
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VERIFICATION
I, Terri Cassel, hereby verify and confirm that I am authorized to sign this
Verification in this action, and I further acknowledge that I have read the foregoing
Petition for Citation To Show Cause Why An Account Should Not Be Filed In
Accordance With 20 Pa.C.S.A. ~ 5610 and that the facts stated therein are true and
correct to the best of my knowledge, information, and belief.
I understand also that any false statements herein are made subject to the penalties
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of 18 Pa. C.S. S 4904, relating to unsworn falsificati91l to auth
Date: August W':2007
MAR-16-20B7 11:49 From:SEA
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!BE PlJIU>OSE OF nus POWER OF AlTORNEY IS TO GIVE ~ PERSON YOU
DESIGNA1ECvoull.~AGEN'1jBRDAD POWBRsTO lIANDUlYOURPRDPERTY. warCH
MAY INCLUDE POWERs TO SI!LL Olt OTIlERWJSB DI8I'OSB OFIANY REIU. OR
PERSONAL I'ROPBRTYWIlHOur ADV ANCENOTICETO YOu OR APJ>llov AL BY YOU.
TRIS POWER OF ATTORNEY DOES NOTlMPOSF. A DUTY ON YOUR AGENT m
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BXI!RClsll GRANnID POWERs. BlIT WHEN roWERs AIUlEXERCr8ED. YOUR AGENT
MUSfUSB DUB CARE TO ACrFOR YOURBENEFIT AND IN ACCORDANCE WITH'lHIS
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POWER. OF AITORNEY.
YOURAOENTMAYEXER.cIsB'lHEPOWERs GlVENHERE nm.qUGROUTYOUR
LlFE"fIMJ; EVEN AF'ffiR YOU BECoME INCAPACITA mo. UNLP.sS YPU EXPRESSLY
LIMIT 1l!E DURATION OF TImSB POWERs OR YOU RBvOKB TRESI! POWIlRs OR A
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COURT ACTING ON YOlJRBEHALF T.E.RMlNAms YOURAOENrS AQ'mORITY.
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YOUR AGENT MUsT KEEp YOUR. FUNDS SEPARA'ffi FROM YOUR AGENTS
mmS. .
i A COURT CAN TAKE A WA Y1HIl POWERS OF YOUR AGENT IF iT FINDs YOUR
AG.ENT IS NOT ACTJNG PROPERLY.
THE POWERs AND Drrrms OF ANAGENTUNDERA POWP.R01;AlTroRNBY ARE
EXPLAlNED MORE.FULL Y IN 20 Pa C.S. Ch. 56.
/ lFTImREIS.ANYTHlNO ABOVTTHlSFORMTIfATYOtJ 00 Nor*NDERSTAND,
YOU SHOUlD ASK A LAwYER OF YOUR. OWN crlOOSING TO EXPLAIN IT TO YOU.
! r HA VB READ OR HAD EXPLAiNED TO MIl TIlls N01lCE AND 1 ONoBRSrANlJ
ITS CONTENTS. I
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Clair W. BeinhoWl:'J'
12ATE:
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Exhibit I
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MRR-16-2BB7 11:49 From:S8R
7177674790
To:CNC Ri9htFu
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POWER OF AlTORNEY
1, Clair W. Deiohower , of LoWec Allen Township, Cumberland c.odnty, Pennsylvania"
hereby revoke any GenemI Power of Attorney that I have heretofore given to ~y person and do
bel:ebyappoint my son Bmy W. Beinhower, (hereinafter "my Agc:ntj my true and lawful Agent
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fotme and on my behaJt'to pelfonn aU such acts as my Agent in my Agent's absoJme discretion may
doe.tn ~c, as fully as I could do ifpmonally present
I)lJRABLB POWER.
This POWQ' of Attorney shall not be a1fected by my subSequcm disabililf or incapacfty.
GENERAL GRANT OF BROAD POW~
My Agent is hereby given rile fuHest possible J>OWenl to act on my bbhaIf:,' : to transact
~ make. execute and acknowledge all agreemen~ con1rads, ordtn, deeds, writings.
~ and instmments for any matter, with fhe same I'OWClS and for all)JOlpO'.Ses with the same
validity 881 could, if JX:monally present. I
~ECIFlC POWERS INCWDPO IN GENERAL POWER
WIthoUt Iirni~ the gCDCnd polvers ht:fCby alread,r conferred. ~- A~t shall ha\.e the
folJawiog specffic powers which are included in the foregotog geneml ~: ~
SPecl.6e p~ Dermed by S!Btute
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The foUowingpowers arc granted pw'SUardto Chapter 56 o.fthePcnosyI~Pmbatc Estates
and Fiduciaries Code 88 further defined therein:N
a To make gifts. By way of ccpJanatiOD, :ow AgenL is authorlzed to ~ gifts of any
type, in any amounts and to.JUJy donees amy Agent shall decide. This sbalI include
the right of my Agent to makegifis to himself of such types and in ~ amoLmts as
my Agent sbaII d~
b. To t:<<:atc a fIust for my benefit.
c. To mah additions to an existing trust for my benefit.
d. To disclaim any interest in property.
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To rcD.OWlce fiduciary positions.
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To withdraw and receive the income or corpus of a tnJst:.
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To authorize my admission 1.0 a medical, ntmmg, residential or ~ml1ar facility and
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to cnk:t into agreements for my care. ~
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To aut;horize medical aDd surgical procedures.
To authorim and direclzmyphysician, health care professionaI.hbuth care provider,
and mcdicll care tacility to provide to my agent in.formation~ to my physical
aDd men1Bl condition and the diagnosis, prognosis, care and ~c::nt 1hereofupon
Che request of my agent. It is my intent that this autborizatioo. for my agent to be
considered a personal xqJIe8Cntative UDder privacy IegUla.tions rbtatcd to protected
- - and ID.-my _to be cntftl.d to all r in the
same ~ as if I pctsonally were ~:tJQr.8 the request. . smhoriution and
~OD sball also be considered a consent to the release of. infomu.tion under
cumm .00 fbrther xe~ laws aod rules. iDduding but not liInitcd to, the
expre&a glaO.t of authority to personal representatives as provided by Regulation
Section 164.502(g) ofTrtle4S oftbc Code ofFedeca1 ~ and the medical
infum:mtion privacy law 8Dd regulaJioDS genemIly referred to as FAA-
To engage in real property transactions. which shall include the i>ower to:
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I. Acquire or disJxr.ce of !all propetty (mcluding my residefcc) or any intaest
'1flemin, including, bot not limited to, the power to buy or sen at public or
private sale rOT cash or aedit or partly for each; ~, mortgage,
encumber, lease for any period of time; give or aequmf options for ~es.
pwchases, exchanges or leases; buy at judicial sale any p,Iopcrly on which I
ooMam~~e. !
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2. Maoagc;. repair, improve, m;lln1ain" r:estore. alter, build, ptotect or insure real
property; demolish stIuct.un=s or develop real es1Bte or ~ intac:;t in real
estate. I
3.
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Collect rent;. sale proceeds aDdeam1Tlg'i from real estate;~, contest. protest
and colDpTOIIlise real estate taxes and assessmcots.. I
Release in whole or in.pal1, assign 1he whole or a part orJsatisfy in whole or
in part and enforce any mortgage, cncumbtance, lien or/<>ther claim to real
property. .
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S. Grant eascm~l]ts. dedicate real estate, partition and subdh,ide real estate and
file plans, llPPUCKtiODS or other documcnl~ in oonnec6on therewith.
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6. In gencra1, exercise all powers with respect to my real property that I could
if I
present. ~
The authority granted in this Paragraph shall apply to ~ real cs1Bte in which
I have an interest including, but not limited to, my real estatelckated in Lower Allen
Township, Cumberland County) Pennsylv-.mi~ and knownJ and numbered as 1
Colmnbia Drive, Camp Hill, p A. !
To eogaga in limgJ"ble Jl'l'SODaI propcrIylmll!llCOons. I
To sign at1y IUd all documents ~ to'transfer the titles to motor vehicles.
mobne homes an.d tRvel traa1ers. !
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To engage in stock, bond and other securities trmsactions.
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To engage in commodity aod options transactions.
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To engage in retirement phm tmnsactions.
To handle interests in estates and 1lusIs..
To p~ claims and litigation_
To receive govanment bmefits.
Tn puISUe 1m(;.rnatteIx.
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To discuss IDatte(s in my behalf with representatiVes of the Social Security
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. MAR-16-2B07 11:50 From:SEH
71776747ge
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Admintmtion. and to take any and all actiom in regard to benefits for me ftom the
Social Scturity Administration and for ony other matters associ~ted with the Social
Security Administralion. ;
y- To 8PP.Oint a successor agenl or agents. !
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DURATION OF POWF.R. RELmF FROM UABU.ITY. REvocinON
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a This power shall not expire by teasDn ofJapse of time. !
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b. I herebyxaIifY and conti:an all thattlle Agent acting hereunder ~ do or cause to be
doneuodcrthis GencnlPower of Attorney. I Specifically dirccttfiat suchAgent shaII
not be subject to any liability by reB.'>OJl. of ~ of such Agent.~ decisions, acts or
.&iIute$1I) act, all ofwhich shall be coocJusive and binding ~ me, my pcn;onat
re~ heir$ and assigns. Furtherm~ except in the case ofmJIJfP.aaftl".C of
office, 1 agtee to indemnify b-uch Agent, and hold such Ageut ~ess, 1iom all
claims tbat may be m.ade against such Agent as a resull of SUfh Agent's servicc
hcreundec. and I hereby agree to reimbuae such Agent jn the 8lI).OUDl of any
~ ~ and Cltpenses tIua1 may be iocuned as a result of~ such claiDI.
c. This Powea- of Attomey shall be revoked. by my giving to ~ Agent acting
b.eramderwrittmnotification of the revocation, wbidJ.notic:::e smt Dot bec:onsidered
binding unless acluaJlYreceived. :
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This Power of Attorney .is executed in two (2) couo.terparts, of which tbi,is counterpart No- .' .
INWlTNESs WHEREoF, and im~ to be legally bomJd. lhavc~ set my hand
and sea{ this E;:!!:.. day of 1"11) P. C IJ , 2007. i
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Clair W. BcinboWf::r :
COMMONWF.ALm OF PENNSYLVANIA
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COUNTY OF S<::> ft-~
On this, the
(;, -tJ-'t day of M no ^ c-f.,
, 2 ""qr, before me, 'the
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prOVen) to betl1e person whose name is subscnDed to the \\itbin i"Dsmm1em, and ac~i~~
.be executed the same for the purposes therein contained. !
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IN WllNEss WHEREoF, I hereunto set my baud and official seal j
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MRR-16-20B7 11:50 From:SEA
7177674790
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P.11/11
I, BARRY W. Bm.."HOWER , RAVE READ THEATIACHEDPOWERbF AITO~'l:Y .~"D
I AM THE PERSON IDENTIFIED AS TIlE AGENT FOR THE PRnicIP AL. I HEREBY
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ACKNOWLEDGE TIIAT IN THE ABSENCE OF A SPECIFIC PROVISION TO lEE
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CONTRARY IN THE POWER OF ATIORNEY ORlN 20 PaC.s. WHEN I Acr AS AGENT:
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I SHALL EXERcrSE THE POWERS FOR TIJE BENEflT OF THE PRINCIPAL.
I SHALL ltEEP THE ASSETS 01' TIlE PRINCIPAL SBPARA1FROM MY ASSETS.
I SHAU, BXER;CISE REASONABLE CAUTION AND PRUDEN1CE.
J SHALL KEEP A FOU. AND ACCURATE RECORD OF ALL CTIONS, RECEIPTS
AND DISBURSEMENTS ON BEHALF OF urn PRINCIPAL. I
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Bmyw!BeU.bo_ · 7 1/
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CERTIFICATE OF SERVICE
I, Jacqueline M. Welby, Esq., Counsel for Petitioner of the Estate of Clair
Beinhower, deceased, hereby certify that on this 29th day of August, 2007, I served the
foregoing Petition for Citation To Show Cause Why An Account Should Not Be
Filed In Accordance With 20 Pa.C.S.A. ~ 5610 via facsimile, on the persons set forth
below to their last known address of record, namely:
Stephen K. PortIco, Esquire
Bratic & Portko
101 South u.S. Route 15
Dillsburg, P A 17019
Attorney for Agent, Barry Beinhower
The York Legal Group, LLC
By:
eM. Welby, Esq.
3511 rth Front Street
Harrisburg, P A 17110
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Thomas B. York, Esquire
Phone: 717.236.YORK
(9675)
Facsimile: 717.236.6919
Email: tyork@yorklegalgroup.com
Jacqueline M. Welby, Esquire
Email: jwelby@yorklegalgroup.com
August 29,2007
Glenda Famer-Strasbaugh
Clerk of Orphan's Court
I Courthouse Square
Carlisle, P A 17013
Re: Clair Beinhower
Dear Ms. Strasbaugh:
Please find enclosed for filing the attached Petition For Citation To Show Cause Why
An Account Should Not Be Filed In Accordance With 20 Pa. C.S.A. ~ 5610 and Decree For
Issuance Of Rule To Show Cause in the above-referenced matter. A fifteen dollar filing fee is
enclosed.
I have enclosed an original and 3 copies. Please time stamp the one copy and return the
same to my attention in the enclosed postage pre-paid self-addressed stamped envelope.
If you have any questions please give us a call.
Very truly yours,
;::~l::- OU/;
Enclosures
JMW/drg
3511 North Front Street. Harrisburg, Pennsylvania 17110-1438