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HomeMy WebLinkAbout03-07-02 TN RE: APPOINTMENT OF A GUARDIAN OF THE PERSON OF MILDRED J. GERBER, and alleged incapacitated person, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : ORPHANS COURT DIVISION Petitioner : NO. 21-01-92 RESPONSE OF MARILYN JO GERBER TO MOTION FOR CONTINUANCE AND NOW, comes Marilyn Jo Gerber, by and through her counsel, Caldwell & Kearns, making the following response to the Motion for a Continuance presented by Richard C. Rupp, Esquire, and/or Frederick E. Gerber, II, alleging in support thereof as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted in part. It is admitted that hearings were held on the Petition for Appointment of a Guardian on October 8, 2001, and December 19, 2001; remainder of Petitioner's allegation is denied as it refers to a record of proceedings which speaks for itself. 5. Admitted. By way of further answer, the Order of Court was entered December 21, 2001; and on January 28, 2002, a further Order of Court was issued granting Petitioner's Motion for a Continuance, rescheduling the hearing to March 21, 2002, by reason of Petitioner being ordered to temporary duty at Fort Rucker, Alabama, on or about January 24, 2002, said Order also entered Petitioner's Motion for a Continuance as an Order of Court, to wit directing an access visit by Marilyn Jo Gerber with Mildred Gerber and at least two telephone contacts per week between Marilyn Gerber and Mildred Gerber. (7 til I 6. Denied. After reasonable investigation, Respondent is without sufficient knowledge or information to form a belief as to the truth of the matter asserted and strict proof is demanded at hearing. No information or written confirmation has been provided to Respondent substantiating, inter alia, the date of Petitioner's Orders, the date of receipt of said Orders by Petitioner, the date Petitioner is required to report in Germany, and if said Orders are temporary, then the date of Petitioner's anticipated return. Further, said Motion for a Continuance although alleging facts regarding Petitioner Frederick E. Gerber, II, are not of record in this matter, and said Motion lacks proper verification as required by Pa. R.C.P. 1024, and should therefore be stricken. 7. Denied. Respondent's response to paragraph 6 hereof is incorporated herein by reference the same as though set forth at length. 8. Admitted. 9. Admitted. 10. Admitted in part and denied in part as stated. It is admitted that Respondent Marilyn Gerber did have one brief personal visit of approximately 15 minutes in duration with her mother, Mildred J. Gerber, on the evening of February 9,2002, in Chicago, Illinois, at a place, time, direction and manner as directed by Petitioner Frederick E. Gerber, II, and/or Jane Heflin. It is admitted that Mildred J. Gerber apparently was brought to Chicago, Illinois, by Petitioner and/or Jane Heflin as of December 21,2001, for a holiday visit with daughter, Jane Heflin, and has not returned to her home in New Cumberland, Pennsylvania, since. The remainder of Petitioner's allegations are denied, after reasonable investigation, Respondent is without sufficient knowledge or information to form a belief as to their truth. 2 ~> Iii r.) 11. Denied as stated. Since the brief personal visit by Respondent Marilyn Gerber with her mother, Mildred J. Gerber, on February 9, 2002, only four telephone calls have been conducted to this date; the calls have been short in duration (shortest being 5-6 minutes, the longest being 10-12 minutes); all calls are originated and monitored in their entirety by Petitioner and/or Jane Heflin as a three-party conversation; all calls were terminated by Petitioner and/or Jane Heflin; Respondent Marilyn Gerber is not allowed unmonitored, reasonably scheduled telephone conversations at the mutual convenience of Mildred Gerber and Marilyn Gerber, Marilyn J. Gerber is not permitted to originate any telephone calls. Respondent Marilyn Gerber desires that additional unrestricted telephone calls be allowed in addition to two times per week as originally agreed, and ordered by the Court on January 28,2002. 12. Denied. Respondent desires additional personal visitation with her mother and was originally led to believe that her mother would be returning to Pennsylvania as of the time of the original hearing scheduled for January 28,2002. Respondent believes and therefor avers mother desires to continue personal and telephone contact with her daughter, Marilyn Jo Gerber. Petitioner and/or Jane Heflin have removed Mildred J. Gerber from her lifelong home for a substantial period of time, removed her from all usual personal contacts, care givers and treating physicians; and Mildred J. Gerber has expressed to Marilyn Jo Gerber despair with her current living and care arrangements. It is further denied that Mildred J. Gerber wanted the visitation of February 9,2002, to be terminated as a result of any conduct of Marilyn Jo Gerber, and proof thereof is demanded; all arrangements for the visitation, such as the time, location and all persons present, were directed and dictated solely by Petitioner Frederick E. Gerber, II, and/or Jane Heflin; a quality amount of time was not provided for the access visit between Mildred J. Gerber 3 q "1/ ^ and Marilyn Gerber in that it was brief in duration (approximately 15 minutes), conducted in the early evening which resulted in physical strain and Mildred J. Gerber being tired, and a location for the visit was used which was unfamiliar and uncomfortable to Mildred J. Gerber; as Marilyn Jo Gerber traveled to Illinois to the convenience of her mother for the meeting, Petitioner refused an opportunity for Marilyn Jo Gerber to have an additional visit, even ifbrief in duration, on February 10,2002, prior to Marilyn Jo Gerber's return to Pennsylvania. It is believed and therefore averred that Mildred J. Gerber's health and condition is deteriorating and under stress due to the confines of her current arrangements and visitation with family in Chicago, Illinois; thus urgency does exist as to Mildred J. Gerber's desires regarding her contacts with her daughter, Marilyn Jo Gerber, which have been impeded by Petitioner and the location of Mildred J. Gerber in Illinois. 13. Denied as stated. A message was received from counsel, Richard C. Rupp, on the afternoon of March 4, 2002, in return of an earlier phone call unrelated to the pending Motion for Continuance and expressing a desire to discuss a continuance. Neither a copy of the Motion for the continuance or other factual basis for the need for a continuance was given to Respondent or counsel was provided prior to the filing of the pending Motion. Several weeks prior to the filing, counsel Richard C. Rupp indicated by phone a possible future need for a continuance and was advised that rescheduling to an earlier date than March 21, 2002, would be considered an acceptable alternative. Further, Respondent believes and therefore avers that Petitioner is capable of participating in the March 21, 2002, hearing by telecommunication means and Mildred J. Gerber is represented by counsel Jacquelyn Verney, who may appear with her at said hearing. 4 qqn 14. Denied. Respondent is without sufficient knowledge or information to form a belief as to the truth of the matter asserted, therefore strict proof is demanded at hearing. WHEREFORE, Respondent respectfully requests this Honorable Court to deny the Motion for Continuance of Petitioner Frederick E. Gerber, II, scheduled for March 21, 2002. Respectfully submitted, CALDWELL & KEARNS Date: 3 - 1-o't.,.. By Stanley J. A. 3631 North Fron Street Harrisburg, P A 17110 (717) 232-7661 LD. #37422 Attorney for Respondent 36939 5 q'qr/ VERIFICATION I, Marilyn Jo Gerber, verify that the averments in the foregoing Response of Marilyn 10 Gerber to Motion for Continuance 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. 4904, relating to unsworn falsification to authorities. 36939 6 (j 0'C;f CERTIFICATE OF SERVICE I, Stanley J. A. Laskowski, Esquire, attorney for Marilyn Jo Gerber, Respondent, hereby certify that on March 7, 2002, I served copies of the foregoing Response of Marilyn Jo Gerber to Motion for Continuance on the following persons, by depositing same in the United State mail, postage prepaid, addressed to: Richard C. Rupp, Esquire Rupp and Meikle 355 North 21 sl Street, Suite 205 Camp Hill, PA 17011 Amy J. Mendelsohn, Esquire Rhoads & Sinon One South Market Square, 12th Floor P. O. Box 1146 Harrisburg, PAl 71 08-1146 Jacqueline M. Verney, Esquire 44 South Hanover Street Carlisle, PAl 7013 Jane N. Heflin 270 North Garfield Lombard, IL 60148 Date: -5--- 7- d'L (J G (')