HomeMy WebLinkAbout10-05-01 (2)IN RE: APPOINTMENT OF A GUARDIAN : IN THE COURT OF COMMON PLEAS
OF THE PERSON OF MILDRED J. GERBER, : CUMBERLAND COUNTY, PENNSYLVANIA
and alleged incapacitated person, : ORPHANS COURT DIVISION
:
Petitioner : NO. 21-01-92
MOTION FOR CONTINUANCE
AND NOW, comes the Petitioner, Marilyn Jo Gerber, by and through her undersigned
counsel, and requests a continuance of the hearing regarding the above-captioned Petition scheduled
for October 8, 2001 regarding appointment ora guardian of the person of Mildred J. Gerber, stating
in support of said request for continuance as follows:
1. Petitioner is Marilyn Jo Gerber who has a Pennsylvania residence of 42 Brexel Place, New
Cumberland, Pennsylvania 17070, and a California residence of 1830 Gough Street,
Apartment 2, San Francisco, California 94109.
2. Petitioner is an adult individual and daughter of alleged incapacitated person, Mildred J.
Gerber.
3. On and about September 5, 2001, a Petition for Appointment of Guardian of the Person of
Mildred J. Gerber was filed to the above-matter by and on behalf of Frederick E. Gerber, II.
4. On and about September 6, 2001, an Order of Court was issued awarding and directing a
Citation to Mildred J. Gerber to show cause why Frederick E. Gerber, II should not be
appointed guardian of her person. A copy of the Order of Court and Citation as received by
Marilyn Jo Gerber, is attached hereto and marked as Exhibit "A" and incorporated herein by
reference.
5. The September 6, 2001 Order directed also that at least twenty (20) days notice be provided
of the Petition and Citation to Mildred J. Gerber and by personal service by certified or
registered mail to the within Petitioner, Marilyn Jo Gerber, of the Notice of Hearing, Petition
and Citation.
6. At all times material and relevant to the filing of the Petition, Marilyn Jo Gerber was located
and residing at the California residence, which residence was known to Petitioner Frederick
E. Gerber, II.
7. Service of the Notice of Hearing, Petition and Citation was made upon Marilyn Jo Gerber
by certified mail, return receipt requested, issued no earlier than September 24, 2001, by the
Sheriff of Cumberland County, and received by the Petitioner on or about September 29,
2001. A true and correct copy of mailing envelope evidencing said service by mail is
attached hereto and marked as Exhibit "B" and incorporated herein by reference.
8. Upon receipt of the Notice of Hearing, Petition and Citation, Petitioner Marilyn J. Gerber has
returned to the Commonwealth of Pennsylvania and on and about October 2, 2001 engaged
the undersigned counsel for purposes of representation in the above-captioned matter.
9. Dockets of these proceedings indicates that the acceptance of service pertaining to the Notice
of Hearing, Petition and Citation was filed on or about October 2, 2001 on behalf of Mildred
J. Gerber, and on October 3, 2001, respectively, on behalf of plenary guardian PNC Bank.
10. Improper and insufficient notice of the Petition, Citation and Notice of Hearing has been
provided in accordance with 20 Pa.C.S.A. {}5511, such that twenty (20) days prior notice has
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not been given as required thereby and also specifically directed by Order of this Court dated
September 6, 2001.
11. Substantially insufficient time has been afforded to Petitioner Marilyn Jo Gerber and the
undersigned counsel to prepare and submit an appropriate response to the Petition for
Appointment of Guardian of Frederick E. Gerber, II.
12. Substantially insufficient time upon receipt of notification of this proceeding has been
afforded to Petitioner Marilyn Jo Gerber and the undersigned counsel to investigate the
allegations contained in the Petition of Frederick E. Gerber, II, conduct appropriate discovery
of necessary witnesses and documents in time for the scheduled October 8, 2001 hearing,
assemble and secure the attendance of appropriate and necessary witnesses with respect to
the Petition and allegations set forth therein for the hearing of October 8, 2001, and locate
and assemble all relevant documents for submission in response and with respect to the said
Petition.
13. Substantially insufficient time has been afforded undersigned counsel to meet and consult
with his client, Marilyn Jo Gerber, for purposes of preparing for the October 8, 2001 hearing
and responding to the Petition that has been presented.
14. A Petition for Appointment of Guardian of Frederick E. Gerber, II was filed as stated therein
pursuant to the requirements of 20 Pa.C.S.A. {}5511 as a final appointment of a guardian over
the person of Mildred J. Gerber.
15. However, the Petition of Frederick E. Gerber, 1I was not filed as a Petition requesting or
requiring any emergency relief pursuant to the procedures or requirements as set forth
specifically in 20 Pa.C.S.A. {}5513.
16. The Petition of Frederick E. Gerber does not provide for or allege any current physical,
mental or other evaluations of Mildred J. Gerber's fitness or condition, requiring the issuance
of any emergency relief.
17. The report of Roger J. Cadieux, M.D., attached as Exhibit "C" to the Petition of Frederick
E. Gerber, II, predates the Order of Court on March 22, 2001 pertaining to the appointment
of plenary guardian, PNC Bank.
18. Counsel for Petitioner, Marilyn Jo Gerber, has contacted Amy J. Medelsohn, Esquire,
counsel for plenary guardian PNC Bank, who has indicated her concurrence to the within
request for continuance.
19. Counsel for Petitioner, Marilyn Jo Gerber, has contacted Jacquelyn M. Verney, Esquire,
counsel for Mildred J. Gerber, who indicated to the undersigned that although she has not
had the opportunity to consult with her client regarding the subject Petition, she was not able
to concur to the within request for continuance.
20. Undersigned counsel has attempted without success to contact counsel for Petitioner,
Frederick E. Gerber, II, with respect to the request for continuance.
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WHEREFORE, by reason of the foregoing, Petitioner requests that the hearing scheduled for
October 8, 2001, be continued and rescheduled as determined by the Court to a date within thirty
(30) days of the date thereof.
Respectfully submitted,
CALDWELL & KEARNS
Stanley J.A. Las}{o~vski, Esquire
Attorney ID# 37422
3631 North Front Street
Harrisburg, PA 17110-1533
Dated: f o -$_ ! (717) 232-7661
/30757 Attorney for Petitioner, Marilyn J. Gerber
VERIFICATION
I, MARILYN JO GERBER, verify that the averments made in this Motion 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.
Date: ~-~/
30762
CERTIFICATE OF SERVICE
AND NOW, this ._.,~4~ day of October, 2001, I hereby certify that I have served a copy
of the within document on the following by depositing a true and correct copy o£the same in the U.S.
Mails at Harrisburg, Pennsylvania, postage prepaid and by facsimile addressed to:
Amy J. Medelsohn, Esquire
RHOADS & SINON
One South Market Square
Harrisburg, PA 17101
Facsimile: (717) 232-1459
Richard C. Rupp, Esquire
355 North 21st Street
Suite 205
Camp Hill, PA 17011
Facsimile: (717) 730-0214
Jacquelyn M. verney, Esquire
44 South Hanover Street
Carlisle, PA 17013
Facsimile: (717) 243-3518
CALDWELL & KEARNS
EXHIBIT A
LAW OFFICES
RUPP AND MEIKLE
' ~.. A PROFESSIONAL CORPORATION
~ 355 NORTH 21ST STREET, SUITE 205
. CAMP HILL, PA 17011
COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
IN RE: : No.
APPOINTMENT OF A GUARDIAN :
OF THE PERSON OF MILDRED J. GERBER, :
an alleged incapacitated person ' : A TRUE COPY FROM RECORD
lll Testimony wherol, I hereunto set my hand
and the seal of said Court at Carlisle, PA
~'~' 20
oRo . OF COU.T
Cumberland County
AND NOW, this ~,~ day of September, 2001, upon consideration of the
Petition of Frederick E. Gerber, II, for appointment of a Guardian of the Person for
Mildred J. Gerber, IT IS HEREBY ORDERED AND DECREED:
· A Citation is awarded, directed to Mildred J. Gerber to show cause why
Frederick E. Gerber, II, should not be appointed Guardian of her Person
for the purpose of benefitting and protecting Mildred J. Gerber.
· At least 20 days notice of the hearing shall be given to Mildred J.
Gerber, the alleged incapacitated person, by personal service of a copy
of the Petition and the Citation, and by service of notice of the hearing,
the Petition and Citation. upon the following persons, by personal
service or by certified or registered mail:
1. Jane N. Heflin - daughter
2. Marilyn J. Gerber - daughter
3. PNC Bank as Guardian of the Estate of Mildred J. Gerber
4. Jacqueline Verney, Esquire, attorney for Mildred J. Gerber
COURT OF COMMON'PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
TO MILDRED J. GERBER
IMPORTANT NOTICE
CITATION WITH NOTICE
A petition has been filed with this Court requesting the appointment of
an Emergency Guardian of your Per'son. If the Court finds you need a
Guardian of your Person, your rights will be affected, including your right to
manage money and property and to make decisions. A copy of the petition
which has been filed by Frederick E. Gerber, II, is attached.
You are hereby ordered to appear at a hearing to be held in
(~C~,~m No~o~/__/~.~, One Courthouse Square, Carlisle, Pennsylvania, on
~' at/:~o P.M. to tell the Court why it should not appoint a
Guardian of tl~e Person to act on your behalf.
At the hearing, you have the right to appear, to be represented by an
attorney, and to request a jury trial. If you do not have an attorney, you have the
right to request the Court to appoint an attorney to represent you and to have the
attorney's fees paid for you if you cannot afford to pay them yourself. You also have
the right to request that the Court order that an independent evaluation be
conducted as to your alleged incapacity.
If the Court decides that you are an Incapacitated Person, the Court may
appoint a Guardian for you, based on the nature of any condition or disability and
your capacity to make and communicate decisions. The Guardian will be of your
person and will have either limited or full powers to act for you.
If you do not appear at the hearing (either in person or by an attorney
representing you) the Court will still hold the hearing in your absence and may
appoint the Guardian requested.
By:
Clerk, Orphans' Court
EXHIBIT B
IN RE: APPOINTMENT OF A GUARDIAN : IN THE COURT OF COMMON PLEAS
OF THE PERSON OF MILDRED J. GERBER, : CUMBERLAND COUNTY, PENNSYLVANIA
and alleged incapacitated person, :
:
Petitioner : ORPHANS COURT DIVISION NO. 21-01-92
ORDER
AND NOW, this __ day of October, 2001, upon consideration of the Motion of Marilyn
Jo Gerber, for continuance of the hearing to be held in Courtroom No. 2, One Courthouse Square,
Carlisle, Pennsylvania, on October 8,2001, at 1:30 p.m. with respect to the Petition for Appointment
o£ a Guardian of the Person of Mildred J. Gerber, in accordance with 20 Pa.C.S.A. §5511, said
Motion is hereby GRANTED and said hearing is continued to be held in Courtroom No. __, One
Courthouse Square, Carlisle, Pennsylvania, on ,2001 at
om.
BY THE COURT:
Jo