HomeMy WebLinkAbout12-12-01 COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
IN RE: : No. 21-01-92
APPOINTMENT OF A GUARDIAN :
OF THE PERSON OF MILDRED J. GERBER, :
an alleged incapacitated person .'
MOTION TO STRIKE
TO THE HONORABLE, THE JUDGES OF SAID COURT:
1. The Movant is Frederick E. Gerber, II, Petitioner in the above-captioned
action.
2. The Respondent is Marilyn J. Gerber who has a Pennsylvania residence
at 42 Drexel Place, New Cumberland, PA 17070.
3. Respondent served an Answer to the petition for Appointment of a
Guardian, with extensive New Matter on counsel for the Movant on
December 10, 2001.
4. A continued Hearing on the Petition was ordered by this Honorable
Court to be held December 19, 2001.
5. Respondent had a period of nine weeks from the last hearing on
October 8, 2001 to prepare and serve an Answer with New Matter.
6. Counsel for the Movant had 61/2 working days from service of the
Answer with New Matter to prepare a defense to the extensive New
Matter.
7. The Respondent's New Matter should be stricken because:
A. The Respondent attempts to Petition for her Appointment as
Guardian of the Person in the New Matter, which is contrary to
Pennsylvania law for appointment of a Guardian of the Person,
20 Pa. C.S.A. 2511, et seq.
B. There is not sufficient time for counsel for Movant to prepare a
defense to the extensive New Matter, including the taking of
depositions of Respondent; and therefore, Movant would be
severely prejudiced if Respondent is permitted to offer evidence
at the December 19, 2001 hearing with respect to the New
Matter.
· 8. Despite Movant's timely continued requests of counsel for Respondent
to file an Answer to the Petition, and despite Movant's Petition to this
Honorable Court for a Rule to Show Cause why an Answer to the
Petition should not be filed by Respondent, and despite the lapse of
nine weeks from the time of the last hearing, no Answer was served
upon counsel for the Movant until December 10, 2001.
9. The concurrence in this Motion of Jacqueline M. Verney, Esq., attorney
for Mildred J. Gerber, is attached hereto.
10. No response has been received from Stanley J. Laskowski, Esq.,
attorney for Respondent, and therefore, Movant believes the
Respondent opposes this Motion.
WHEREFORE, the Movant respectfully requests this Honorable Court to strike
the New Matter from Respondent's Answer.
Respectfully submitted,
RUPP ~ ~
Rich0rd C. Rupp ~
Sup. Court I.D. No.: 34832
355 North 21st Street, Suite 205
Camp Hill, PA 17011
(71 7) 761-3459
Attorney for Petitioner
3
I~W O~C~ OF
- " J.4.CQ UE, LINE M.
A1TORNEY AND COUN$~OR AT LAW
December 12, 2001
Richard ¢. Rupp, Esquire
355 North 2]? Str~
Suit~ 205
C~p Hill, PA 17011
R~: ~ ~: ~r No. 21-01-92
De~ ~. R~p:
I have ~ewed yo~ Moron to S~ke ~ ~ a~vc ~f~c~ ~. I ~nc~ ~
yo~ Motion m 5~e.
Very truly youn. . /
JMV/mo~
cc: Mildred Gerber
SENT VIA FAX ONLY
44 SOUIH HANOVER STREET, CARLISLE, PA 17013 (717J 248-9190 FAX 248-3518
VERIFICATION
I, the undersigned, attorney for Movant, am familiar with the facts in the
foregoing Motion and verify the averments in the foregoing Motion are true and correct
to the best of my knowledge, information and belief, and the source of my information
as to matters not stated upon my knowledge is based on information known to me or
from information from the Movant. I am making this verification on behalf of the
Movant because Movant is out of the Court's jurisdiction and is not available to sign the
Verification in time for filing.
I understand that false statements herein are made subject to the penalties of 18
Pa.C.S. 4909 relating to the unsworn fals~ ~.)
Date:
Richard C. Rupp, Esquire
CERTIFICATE OF SERVICE
I, Richard C. Rupp, Esquire, attorney for Fred E. Gerber, II, Movant, hereby
certifies that on December 12, 2001, I served a copy of the foregoing Motion
on the following person, by depositing same in the United States mail, postage
prepaid, addressed to:
Stanley J. Laskowski, Esquire
Caldwell & Kearns, P.C.
3631 N. Front St.
Harrisburg, PA 17110-1533
Amy J. Mendelsohn, Esquire
Rhoads & Sinon, LLP
Twelfth Floor
One South market Square
P. O. Box 1146
Harrisburg, PA 17108-1146
Jacqueline M. Varney, Esquire
44 S. Hanover St.
Carlisle, PA 1 7013
Jane N. Heflin
270 N. Garfield
Lombard, I~-~~
I~i~hard C. ~pp~Esq-~r~'~
Date: