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HomeMy WebLinkAbout09-25-07 In RE: : IN TH~ COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA CLAIR BEINHOWER, : ORPHANS' COURT DIVISION Deceased : NO. 21-07-0388 NOTICE TO PLEAD TO: Petitioner Terri Cassell and her attorney, Jacqueline M. Welby, Esquire The York Legal Group 3522 North Front Street Harrisburg, PA 17110-1438 Attorney for Petitioner You are hereby notified to file a written response to the enclosed ANSWER AND NEW MATTER, filed by Respondent, Barry W. Beinhower, within twenty (20) days from seNice hereof or a judgment may be entered against you. Dated: q -;?'f-O'7 ~~~~ Stephen K. Portko, Esq. Bratic & Portko 101 South U.S. Route 15 Dillsburg, PA 17019 Attorneys for Respondent In RE: : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CLAIR BEINHOWER, : ORPHANS' COURT DIVISION ~; <..;..:;t --' (/) fT1 -0 Deceased ~:~n --,- en ~;] /...... : NO. 21-07-0388 ANSWER AND NEW MATTER ~.', ~.-2 (,fi --;~ ::::. :..? TO THE HONORABLE, THE JUDGES OF THE SAID COURT: Barry Beinhower, as the agent of Clair Beinhower, Deceased, responds to the petition of Terri Cassell, Executrix of the Estate of Clair Beinhower, for citation to show cause why he should not be required to prepare and file, under oath, on accounting of his actions under Power of Attorney, stating that: 1. Admitted. 2. Denied. After reasonable investigation, Respondent is without knowledge or information sufficient to form a belief as to the truth or falsity of the averment contained in paragraph 2 of the Petition and therefore denies the allegations thereof. By way of further answer, Respondent believes and therefore avers that the Last Will & Testament of his father, Clair Beinhower, named three persons to serve as co-executors, namely: Terri Cassell, Nancy Rogowicz and Kevin Rogowicz. 3. Denied. After reasonable investigation, Respondent is without knowledge or information sufficient to form a belief as to the truth or falsity of the averment contained in paragraph 3 of the Petition and therefore denies the allegations thereof. By way of further answer, Respondent believes and therefore avers that the Last Will & Testament of his father, Clair Beinhower, named Terri Cassell, Nancy Rogwicz and Kevin Rogowicz, as the three succeeding beneficiaries in the event his wife, Nancy Beinhower, predeceased him. 4. Denied. On the contrary, Petitioner's claim is disingenuous because she is not being forthright and truthful about the substance and extent of her communications with the insurance company. The reason Petitioner contacted the insurance company in the first place was to obtain a copy of the annuity and to confirm whether or not the insurance company had received and approved a form that she had submitted, requesting a change of beneficiary designee. More specifically, Petitioner Terri Cassell sent in a form attempting to remove her N C..n (--") -0 ::t: .---, ?-~ w o mother, Nancy Beinhower, as the named beneficiary and add her own name as the sole beneficiary without Clair Beinhower's authorization. Petitioner came into possession of the form that she submitted to the insurance company by stealth and deception. Several weeks before Clair Beinhower died, he had contacted his insurance agent and financial planner Rocco Capuano Jr. CEP, RFC to notify him of his failing health and that he wanted to change the beneficiary of the annuity. Further, Clair Beinhower notified his insurance agent that he had executed a power of attorney naming his son, Barry Beinhower, as agent, and that he authorized his son to assist him and sign any forms on his behalf regarding the annuities. The insurance agent mailed the forms to Clair Beinhower's residence, however, these forms were secretively intercepted and taken by Petitioner Terri Cassell and Kevin Rogowicz, who then filled out the forms and submitted them to the insurance company in order to substitute their own names on the policies. Since these forms had been filled out and submitted by persons whom Clair Beinhower had not authorized the insurance agent to deal with, the forms were rejected and new ones were sent to Clair Beinhower on or about March 14, 2007. Because of what had happened and to protect his client from unauthorized changes to the annuities, Clair Beinhower's insurance agent, Rocco Capuano Jr. CEP, RFC, met with Clair Beinhower in person on March 15, 2007 to go over the forms and review the changes that Clair Beinhower wanted to make. The insurance agent then filled in and completed the forms according to Clair Beinhower's instructions and wishes. Upon completing the forms, which named Nancy Rogowicz, Courtney Myers and Barry Beinhower as equal beneficiaries of the annuity in question, the insurance agent confirmed Clair Beinhowers authorization and consent and then the forms were signed in the presence of Clair Beinhower by Respondent, as Agent. 5. Denied. On the contrary, Petitioner's claim is disingenuous because she is not being forthright and truthful about the substance and extent of her communications with the insurance company. The reason Petitioner contacted the insurance company in the first place was to obtain a copy of the annuity and to confirm whether or not the insurance company had received and approved a form that she had submitted, requesting a change of beneficiary designee. More specifically, Petitioner Terri Cassell sent in a form attempting to remove her mother, Nancy Beinhower, as the named beneficiary and add her own name as the sole beneficiary without Clair Beinhower's authorization. Petitioner came into possession of the form that she submitted to the insurance company by stealth and deception. Several weeks before Clair Beinhower died, he had contacted his insurance agent and financial planner Rocco Capuano Jr. CEP, RFC to notify him of his failing health and that he wanted to change the beneficiary of the annuity. Further, Clair Beinhower notified his insurance agent that he had executed a power of attorney naming his son, Barry Beinhower, as agent, and that he authorized his son to assist him and sign any forms on his behalf regarding the annuities. The insurance agent mailed the forms to Clair Beinhower's residence, however, these forms were secretively intercepted and taken by Petitioner Terri Cassell and Kevin Rogowicz, who then filled out the forms and submitted them to the insurance company in order to substitute their own names on the policies. Since these forms had been filled out and submitted by persons whom Clair Beinhower had not authorized the insurance agent to deal with, the forms were rejected and new ones were sent to Clair Beinhower on or about March 14, 2007. Because of what had happened and to protect his client from unauthorized changes to the annuities, Clair Beinhower's insurance agent, Rocco Capuano Jr. CEP, RFC, met with Clair Beinhower in person on March 15, 2007 to go over the forms and review the changes that Clair Beinhower wanted to make. The insurance agent then filled in and completed the forms according to Clair Beinhower's instructions and wishes. Upon completing the forms, which named Nancy Rogowicz, Courtney Myers and Barry Beinhower as equal beneficiaries of the annuity in question, the insurance agent confirmed Clair Beinhowers authorization and consent and then the forms were signed in the presence of Clair Beinhower by Respondent, as Agent. 6. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averment contained in paragraph 6 of the Petition and therefore denies the allegations thereof. By way of further answer, Respondent avers the change of the beneficiary designee was authorized by Clair Beinhower and that the forms were completed by Clair Beinhower's insurance agent and financial planner, Rocco Capuano, Jr. CEP, RFC, who met with Clair Beinhower in person on March 15, 2007 to review the changes and obtain his consent before the forms were signed and delivered for processing. Respondent Barry Beinhower only became involved after his father asked him to sign the forms as his agent. At the time, nobody expected that Clair Beinhower would pass away two days later because his doctors had stated that Clair Beinhower had another 4 to 6 months to live. 7. Admitted. By way of further answer, this Petition should be dismissed because Petitioner has an adequate remedy at law and the issues as to the legality of the change of beneficiary designation will be adequately addressed in the Interpleader action. Further, Petitioner comes into Court with unclean hands by making her demand for an accounting regarding the annuities. 8. Denied. Respondent denies the averments contained in paragraph 8 of the petition that the Decedent's mental capacity was diminished to the point that he was unable to manage his financial affairs and assets. Respondent avers on the contrary that while his father's physical capacity may have impeded his ability to sign documents, Clair Beinhower was of sound mind and capable of giving directions, managing his financial affairs and dealing with his estate. Furthermore, it was Petioner Terri Cassell, not Respondent, who attempted to take advantage of Clair Beinhower's diminished capacity, if any, by intercepting the change of beneficiary forms and submitting them to the insurance company without Clair Beinhower's authorization or consent. 9. The allegations in paragraph 9 of the petition are denied; to the contrary, it was Kevin Rogowicz and Jeff Arnold, the Petitioner's brother, who called 911 and had an ambulance take Clair Beinhower to the hospital. Later, Hospice refused to deal with Jeff Arnold and Kevin Rogowicz because neither individual had a power of attorney. It was during this time that Kevin Rogowicz intercepted the change of beneficiary forms and then conspired with Petitioner Terri Cassell to insert their names as beneficiaries of the annuities. Respondent removed his father from hospice care because Clair Beinhower demanded to be taken home where he could enjoy the comfort of home and familiar surroundings. 10. The allegations in paragraph 10 of the petition are denied; to the contrary, Respondent stayed with his father and provided him with companionship, assistance and care until the day he passed away on March 17, 2007. 11. Denied. Respondent denies the averments contained in paragraph 11 of the petition that he breached his fiduciary duty or that he failed to exercised his powers for the benefit of Decedent's estate. Respondent further denies that all of the assets of the Decedent were intended for the care of Nancy Beinhower. Respondent avers on the contrary that it was his father's wish to name Nancy Rogowicz, Courtney Myers and Barry Beinhower as beneficiaries due to his love and affection for each individual. 12. Denied. Respondent denies the averments contained in paragraph 12 of the petition that he exercised undue influence over Petitioner. Respondent avers on the contrary that he followed completely the directions and instructions of his father in carrying out the duties of his fiduciarY responsibilities and agency powers. Further, Respondent requested that the insurance agent, Rocco Capuano Jr. CEP, RFC, be present on March 15, 2007 when Clair Beinhower changed the beneficiary designee for each annuity to avoid any appearance of self dealing or undue influence. 13. Denied. Respondent denies the averments contained in paragraph 13 of the petition that he engaged in self-dealing. Respondent avers on the contrary that he followed completely the directions and instructions of his father in carrying out the duties of his fiduciary responsibilities and agency powers. Further, Respondent requested that the insurance agent, Rocco Capuano Jr. CEP, RFC, be present on March 15, 2007 when Clair Beinhower changed the beneficiary designee for each annuity to avoid any appearance of self dealing or undue influence. 14. Admitted in part and denied in part. Admitted that Petitioner has requested that Agent agree to the payment of funds to Nancy Beinhower. The remaining allegations in paragraph 14 of the petition are denied; to the contrary, the Power of Attorney and change of beneficiary was approved by the payor of the annuities but no funds have been released pending the contest filed by Petitioner. 15. The allegations in paragraph 15 of the petition are denied; to the contrary, Petitioner does not seek to have an accounting for the purposes stated; rather, Petitioner was unsuccessful in changing the annuities to be paid to her and Petitioner has an ulterior motive for filing this Petition and contesting the payment of the annuities to Nancy Rogowicz, Courtney Myers and Barry Beinhower. 16. The allegations in paragraph 16 of the petition are denied; to the contrary, this Petition should be dismissed because Petitioner has an adequate remedy at law. The issues regarding the legality of the change of beneficiary designation will be adequately addressed in the Interpleader action. Further, Petitioner comes into Court with unclean hands by making her demand for an accounting of the annuities. WHEREFORE, Respondent, Barry Beinhower, respectfully requests that the petition of Terri Cassell, Executrix of the Estate of Clair Beinhower, be denied. NEW MATTER As a further answer, it is averred: 17. Petitioner lacks standing to seek an accounting in this matter because the annuities in question are not assets of the estate. 18. Petitioner lacks standing to seek an accounting in this matter because the decedent, Clair Beinhower, retained the right during his lifetime to change the beneficiary at anytime. 19. Petitioner lacks standing to seek an accounting in this matter because the durable power of attorney signed by Clair Beinhower is not being contested by Petitioner and, thus, Respondent had authority to sign the annuity forms on behalf of his father. 20. Petitioner has an adequate remedy at law and has, in fact, contested the payment of annuities. As a result, Petitioner has received notice from the insurance company that the annuities will not be paid to Respondent, that the insurance company will file an Interpleader action and that the insurance company will pay the funds into court pending further order of court. 21. Petitioner comes into court with unclean hands by claiming that she is seeking payment of the annuities for her mother, Nancy Beinhower, when if fact, Petitioner's secretive conduct indicates that she did not want her mother to be named as the beneficiary on the annuities and that she unlawfully submitted forms to place her own name on the annuities. 22. Petitioner seeks an accounting regarding two annuities; however, Petitioner has all of the information regarding the annuities in question and said annuities have not been paid to Respondent, Nancy Rogowicz or Courtney Myers, pending Petitioner's contest claim with the insurance company. 23. Petitioner's request for an accounting seeks information that Petitioner already has and serves no purpose other than to delay the filing of the Interpleader action by the insurance company. 24. The reason Petitioner contacted the insurance company in the first place was to obtain a copy of the annuity and to confirm whether or not the insurance company had received and approved a form that she had submitted, requesting a change of beneficiary designee. 25. Petitioner Terri Cassell sent in a form attempting to remove her mother, Nancy Beinhower, as the named beneficiary and add her own name as the sole beneficiary without Clair Beinhower's authorization. 26. Petitioner came into possession of the form that she submitted to the insurance company by stealth and deception. 27. Several weeks before Clair Beinhower died, he had contacted his insurance agent and financial planner Rocco Capuano Jr. CEP, RFC to notify him of his failing health and that he wanted to change the beneficiary of the annuities. 28. Further, Clair Beinhower notified his insurance agent that he had executed a power of attorney naming his son, Barry Beinhower, as agent, and that he authorized his son to assist him and sign any forms on his behalf regarding the annuities. 29. The insurance agent mailed the forms to Clair Beinhower's residence, however, these forms were secretively intercepted and taken by Petitioner Terri Cassell and Kevin Rogowicz, who then filled out the forms and submitted them to the insurance company in order to substitute their own names on the policies. 30. Since these forms had been filled out and submitted by persons whom Clair Beinhower had not authorized the insurance agent to deal with, the forms were rejected and new ones were sent to Clair Beinhower on or about March 14, 2007. 31. Petitioner Terri Cassell knew or should have known that Respondent, Barry Beinhower, was appointed to serve as agent for and behalf of Clair Beinhower. 32. Petitioner Terri Cassell knew or should have known that Clair Beinhower authorized his son, Barry Beinhower, to assist him with the annuities and sign any forms on his behalf. 33. Petitioner Terri Cassell knew or should have known that the only person authorized to deal with Clair Beinower's financial affairs or make changes to Clair Beinhower's annuities was his son, Barry Beinhower. 34. Petitioner interfered with the relationship between Clair Beinhower and his son, Barry Beinhower, and the rights, duties and responsibilities conferred upon Respondent by virtue of the durable power of attorney signed by Clair Beinhower. 35. Because of what had happened and to protect his client from unauthorized changes to the annuities, Clair Beinhower's insurance agent, Rocco Capuano Jr. CEP, RFC, met with Clair Beinhower in person on March 15, 2007 to go over the forms and review the changes that Clair Beinhower wanted to make. 36. The insurance agent then filled in and completed the forms according to Clair Beinhower's instructions and wishes. Upon completing the forms, which named Nancy Rogowicz, Courtney Myers and Barry Beinhower as equal beneficiaries of the annuity in question, the insurance agent confirmed Clair Beinhowers authorization and consent and then the forms were signed in the presence of Clair Beinhower by Respondent, as Agent. 37. The insurance agent did not have authority to accept changes to the annuities unless those changes came from Clair Beinhower and his agent, Barry Beinhower. 38. The insurance agent rejected the changes submitted by Petitioner Terri Cassell and Kevin Rogowicz because they were not authorized by Clair Beinhower to make any changes to the annuities. WHEREFORE, Respondent, Barry Beinhower, respectfully requests that the petition of Terri Cassell, Executrix of the Estate of Clair Beinhower, be denied. Date: C(-:;4 -()'7 ~~L<-~ Stephen K Portko, Esq. BRA TIC & PORTKO 101 South U.S. Route 15, Dillsburg, PA 17019 (717)432-9706 Attorneys for Respondent VERIFICATION I, Barry W. Beinhower, hereby acknowledge that I am Respondent in the foregoing Answer to Petition, that I have read the foregoing, and the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. DATE: 9-2. 1"-10 7 CERTIFICATE OF SERVICE I hereby certify that I served the foregoing REPSONDENT'S ANSWER by placing a true and correct copy thereof in the United States mail, first class postage prepaid, addressed as follows: Jacqueline M. Welby, Esquire The York Legal Group 3522 North Front Street Harrisburg, PA 17110-1438 Attorney for Petitioner Dated: q -~s:- 07 ~ . -~ut)Chk~0 Stephen K. Portko, Esquire I.D. # 34538 Bratic & Portko 101 South U.S. Route 15 Dillsburg, Pennsylvania 17019 (717) 432-9706 Attorney for Respondent