HomeMy WebLinkAbout12-18-01 IN RE: : IN THE COURT OF COMMON PLEAS OF
~-~POINTMEN~F~ : CUMBERLAND COUNTY, PENNSYLVANIA
GUARDIAN OF THE ESTATE :
OF MILDRED J. GERBER, :
an alleged incapacitated :
person : NO. 21~,D1-92 ORPHANS' COURT
IN RE: APPOINTMENT OF A GUARDIAN
Proceedings held before the
HONORABLE EDGAR B. BAYLEY, J.,
~ C~erl~d County Courthouse, Carlisle, Pennsylvania,
0 :r~ ' ~ ~
¥ ~ ~ on February 21, 2001, at 3:05 p.m
:~ i~. c~ .~.~ in Courtroom N~er ~o.
APPEARANCES:
JACQUELINE VERNEY, Esquire
For Mildred J. Gerber
RICHARD C. RUPP, Esquire
For Petitioner
MARILYN J. GERBER, pro se
INDEX TO WITNESSES
FQR THE PETITIQNER DIRECT CROSS REDIRECT RECROSS
1. David Matthew Sabo By Mr. Rupp 8 -- 35 --
By Ms. Verney -- 14 ....
By Ms. Gerber -- 16 -- 38
2. Jennifer Conway By Mr. Rupp 41 ......
By Ms. Verney -- 57 ....
By Ms. Gerber -- 58 ....
FQR MARILYN GERBER
1. Michael Kane By Ms. Gerber 72 -- 84 --
By Mr. Rupp -- 82 ....
By Ms. Verney -- 83 ....
2
INDEX TO EXHIBITS
FOR PETITIONER IDENTIFIED ADMITTED
1. Revocation of trusteeships 48 --
and powers of attorney
2. Mrs. Gerber's account statements 52 --
3 Photocopies of various checks 53 --
December 27, 1999 and January 11, 2000
4 Photocopy of check from 53 --
April 18, 2000
5 Photocopies of various checks 53 --
for the month of September 2000
6 Photocopies of various checks 55 --
for the month of October 2000
7 Photocopies of various checks 56 --
for November 2000
8 Photocopies of various checks 56 --
for months of November and December 2000
3
February 21, 2001, 3:05 p.m.
2 Carlisle, Pennsylvania
3 (Whereupon, the following proceedings
4 were held:)
5 THE COURT: I signed an emergency order?
6 MR. RUPP: Yes, Your Honor.
7 THE COURT: Extending 30 days after January
8 25, 2001, and we are here today on a petition to appoint a
9 plenary guardian of the estate?
10 MR. RUPP: Of the estate.
11 THE COURT: Only?
12 MR. RUPP: Only.
13 THE COURT: Are you ready to proceed?
14 MR. RUPP: I am, Your Honor.
15 THE COURT: Has notice been given to the
16 required parties?
17 MR. RUPP: Yes, Your Honor.
18 THE COURT: And who and in what manner?
19 MR. RUPP: Your Honor, the sheriff served
20 the incapacitated person by reading the petition and the
21 orders and the citation to her on February 1 inside this
22 courthouse in the sheriff's office. Also, the same was
23 done for Jane Heflin. Service was made on Marilyn Gerber,
24 a daughter of the incapacitated person, by certified mail.
25 Marilyn Gerber picked that up by return, according to the
4
card, on February the 9th.
2 THE COURT: Is Marilyn Gerber in court?
3 MS. GERBER: Here, Your Honor.
4 THE COURT: You object to this relief?
5 MS. GERBER: Yes, sir. I filed a motion
6 last Friday.
7 THE COURT: Well, I am going to deny your
8 motion for a continuance, but you can come on up here and
9 sit over here and participate. You are not represented,
10 correct?
11 MS. GERBER: I am representing myself pro
12 se.
13 THE COURT: Okay. Come on up. Anybody else
14 in the courtroom who is a party or a quasi party to this?
15 Nobody else is here. All right.
16 MR. RUPP: Your Honor, the alleged
17 incapacitated --
18 THE COURT: Have a seat, ma'am.
19 MR. RUPP: The alleged incapacitated person,
20 Mildred Gerber, is in the courthouse, Your Honor, with her
21 daughter Jane Gerber. We will have testimony to start off
22 with from a licensed psychologist, Dr. Sabo, who will
23 testify that it would be harmful to the incapacitated
24 person to be in the presence of the courtroom with Marilyn
25 Gerber, her daughter, and also be cross-examined. However,
5
we would agree that the Court could examine the alleged
2 incapacitated person in chambers with her counsel,
3 Jacqueline Verney.
4 THE COURT: Well, I do not need the alleged
5 incapacitated person in the courtroom while I am
6 proceeding.
7 MS. GERBER: Your Honor.
8 THE COURT: Yes.
9 MS. GERBER: I would like to ask for a point
10 of reference here. As I understand on my motion, the
11 motion that I filed --
12 .THE COURT: That is on a motion for a
13 continuance, correct?
14 MS. GERBER: Yes.
15 THE COURT: That is denied. I am ready to
16 proceed. I have read it. I have reviewed it.
17 MS. GERBER: Even on the improper notice?
18 THE COURT: I have denied the motion.
19 MS. GERBER: Okay. Thank you, sir.
20 THE COURT: Do you need to get the doctor on
21 the phone?
22 MR. RUPP: Yes, Your Honor.
23 THE COURT: You can arrange that. As soon
24 as that is squared away with my secretary, I will come on
25 out again. Ring me as soon as the doctor is on the phone.
1 MS. GERBER: I would like to be present,
2 Your Honor.
3 THE COURT: You are going to be present. It
4 is going to be over the phone, ma'am. It is going to be
5 right here in the courtroom.
6 MS. GERBER: Thank you, sir. I would like
7 to have my mother present.
8 (Whereupon, Judge Bayley left the bench
9 at 3:10 p.m.)
10 (Whereupon, Judge Bayley returned to the
11 courtroom at 3:17 p.m.)
12 THE COURT: Is the doctor on the phone?
13 MR. RUPP: Yes, Your Honor.
14 THE COURT: Pamela, swear him in, please.
15 Doctor, if you will raise your right hand, the stenographer
16 will swear you in.
17 Whereupon,
18 DAVID MATTHEW SABO,
19 having been duly sworn, testified as follows:
20 THE COURT: Just a moment. Ms. Verney, you
21 represent Mildred Gerber, right?
22 MS. VERNEY: Yes, Your Honor.
23 THE COURT: You are satisfied with the
24 procedure we are utilizing?
25 MS. VERNEY: Yes, Your Honor.
7
1 THE COURT: You may proceed.
2 MS. GERBER: Your Honor --
3 THE COURT: Your objection is overruled. I
4 heard it before, and I am going to proceed.
5 MS. GERBER: Are you aware there was a
6 subpoena served on Mrs. Gerber today?
7 THE COURT: Yes. Proceed.
8 MR. RUPP: Thank you, Your Honor.
9 (Whereupon, the following testimony
10 was taken via speakerphone.)
11 DIRECT EXAMINATION
12 BY MR. RUPP:
13 Q Dr. Sabo, could you state your full name for
14 the record, please.
15 A David Matthew Sabo. I have a Ph.D. in
16 clinical psychology.
17 Q And did you fax me a curriculum vitae?
18 A Please repeat that question.
19 Q Earlier today did you fax to me a curriculum
20 vitae?
21 A Yes, I did.
22 Q And are you a licensed clinical
23 psychologist?
24 A Yes.
25 Q And can you state your educational
1 background briefly for the Court?
2 A I have a Ph.D. in clinical psycholo95; from
3 the Union Institute. I have a Master's Degree in clinical
4 psychology from Millersville University and a Bachelor's
5 Degree in psychology from the King's College.
6 Q Have you done any internships?
7 A Yes, I have. I did my clinical internship
8 at Good Samaritan Hospital in Lebanon.
9 Q Are you a licensed psychologist?
10 A That's correct. I was licensed in 1984.
11 Q And how are you currently employed?
12 A I am employed by Pennsylvania Counseling
13 Services from November of 1995 until the present, and prior
14 to that I worked at Philhaven Hospital, clinical
15 psychiatric hospital, in Mt. Gretna, Pennsylvania.
16 Q Are you familiar with mental exams and
17 giving of mental exams especially with regard to assessing
18 persons who may be adults or seniors with respect to
19 capacity or incapacity?
20 A Yes, I am.
21 Q What experience do you have in that field?
22 A Generally speaking, probably more than
23 fifteen years. Forty percent of my practice is devoted to
24 work with older adults, those people 60 years and older, in
25 a variety of states and conditions both as outpatients as
9
1 well as inpatients.
2 Q Are you associated, Doctor, with any
3 hospitals?
4 A Yes. I am on the staff at Good Samaritan
5 Hospital in Lebanon as a consultant, and I do various
6 psychological -- I provide psychological services to
7 various patients upon request of their attending doctors.
8 Q Thank you, Doctor. Have you had the
9 opportunity to examine our alleged incapacitated person by
10 the name of Mildred J. Gerber?
11 A Yes, I did.
12 Q And can you tell the Court what you did to
13 examine Mrs. Gerber?
14 THE COURT: Tell me first, when did you do
15 it, sir?
16 THE WITNESS: I met with her yesterday,
17 which would have been Tuesday, February the 20th. I spent
18 approximately 40 minutes doing a clinical interview and
19 then another 45 minutes doing psychological testing to
20 evaluate her cognitive and emotional status.
21 BY MR. RUPP:
22 Q How long was the overall exam, Doctor?
23 A The entire exam lasted approximately one and
24 a half hours.
25 Q And did you reach any kind of conclusions
10
1 with respect to Mildred J. Gerber from your exam?
2 A Yes, I did.
3 Q Could you tell the Court what conclusions
4 you have reached?
5 A Based upon the results of my evaluation
6 plus review of the background information contained in the
7 petition that I reviewed, I am quite certain she's
8 suffering from a disorder known as Alzheimer's dementia
9 with depressed moods.
10 Q And from that examination and that
11 conclusion, were you able to develop an opinion whether or
12 not Mildred J. Gerber is incapacitated?
13 A Yes, I did reach a conclusion. I believe
14 that she is incapacitated because of the difficulties she
15 had understanding the nature and consequences of decisions
16 that she makes.
17 Q Can you elaborate on not understanding
18 consequences of decisions?
19 A I'm sorry. Could you repeat that?
20 Q Yes, Doctor. Can you elaborate on what you
21 are referring to when you say she cannot understand
22 consequences of decisions?
23 A Certainly. Although she is a well educated
24 woman, she has both a Bachelor's and Master's Degree, she
25 has lost a lot of her ability to assess information in ways
11
,
1 that are -- that lead her to understand cause and effect,
2 consequences and actions. Not only that, when she is under
3 periods of higher stress, her reasoning, her attention, her
4 memory all falter which further prohibit her ability to
5 understand and appreciate decisions that she is making.
6 Q You mentioned stress that she cannot handle.
7 What is her reaction then? What does she do when she's
8 under stress? What's her escape mechanism, if there is
9 one?
10 A It depends on the nature of the stress. Let
11 me talk about that in two ways. General stress simply
12 amplifies her forgetfulness or her distractibility.
13 However, she is capable of being brought back to the
14 subject at hand but has difficulty remaining on task.
15 If the stress is more emotionally laded and
16 personal, such as with the case when I was talking to her
17 about her relationship with Marilyn, her daughter, she
18 became more visibly distressed.
19 She began ringing her hands. She began
20 having a lot of difficulty answering coherently. In fact,
21 she tried to change the subject several times and would not
22 allow the questioning to continue in that vein regarding
23 her daughter.
24 Q Were you able to reach an opinion with
25 reasonable expert certainty, Doctor, whether or not Mrs.
12
1 Mildred J. Gerber is stressed by her daughter Marilyn?
2 A I believe that she is.
3 Q Were you able to reach an opinion with
4 expert -- with reasonable expert certainty, Doctor, that it
5 would be harmful for Mildred to be in the same courtroom
6 with Marilyn?
7 A I believe that --
8 Q We broke up there, Doctor. What was your
9 answer?
10 A I believe that without a doubt.
11 Q And would it be your opinion with reasonable
12 expert certainty, Doctor, that it would be harmful to her
13 emotional or mental state to be examined under cross
14 examination by her daughter Marilyn?
15 A Yes, I do because such an examination would
16 make it very difficult for her to answer in a way that is
17 reliable and consistently credible.
18 Q Doctor, is it your reasonable expert opinion
19 that Mildred J. Gerber is an incapacitated person?
20 A Yes.
21 Q Is it your opinion, therefore, that she
22 would require a guardian for her property?
23 A Yes, I believe that.
24 Q And could she become as an incapacitated
25 person, in your opinion, with reasonable expert certainty,
13
1 that she could become the victim of a designing or scheming
2 person?
3 A I believe that without question.
4 MR. RUPP: Your Honor, I have no further
5 questions. I would just ask that Dr. Sabo be allowed to be
6 our expert in this matter.
7 THE COURT: Ms. Verney, do you have any
8 questions?
9 MS. VERNEY: Only a couple follow-ups, Your
10 Honor.
11 CROSS EXAMINATION
12 BY MS. VERNEY:
13 Q Dr. Sabo, this is Attorney Jackie Verney,
14 and I represent Mildred Gerber. You indicated you were
15 licensed. I assume that's in the State of Pennsylvania?
16 A That's correct.
17 Q And have you ever been accepted as an expert
18 in this field in any other courts in the Commonwealth?
19 A Yes, I have, in Lebanon County.
20 Q In Lebanon County?
21 A Yes.
22 Q Can you tell us about how many times?
23 A Excuse me, you'll have to repeat that
24 question.
25 Q Can you tell me how many times you,ve
14
1 testified as an expert in Lebanon County?
2 A Approximately six to ten times.
3 Q And I take it you were able to identify the
4 stress that Mildred Gerber is put under? You indicated
5 that she's under certain stress and that causes her some of
6 this incapacity.
7 A Right.
8 Q Did you identify what that stressor was?
9 A Well, certainly one of the stressors is the
10 loss of her husband. He died a few years ago, and she's
11 still grieving his loss, and I do believe she's suffering
12 some depression as a result of that. That's one nature of
13 the stress she's under. But more recently the stress that
14 she's had to deal with regarding her daughter Marilyn and
15 Marilyn's behavior towards her has heightened the stress
16 enormously for her.
17 MS. VERNEY: That's all I have, Judge.
18 MS. GERBER: I have questions.
19 THE COURT: Doctor, Marilyn --
20 MS. GERBER: Your Honor --
21 THE COURT: Look, you wait until I am
22 finished talking, and then you can ask questions.
23 MS. GERBER: I didn't realize --
24 THE COURT: Doctor, I am going to have
25 Marilyn Gerber, who is representing herself, ask you some
15
1 questions. Go ahead, ma'am.
2 CROSS EXAMINATION
3 BY MS. GERBER:
4 Q Dr. Sabo, can you hear me?
5 A Yes.
6 Q I would like to ask you a couple questions
7 about your training. The Union Institute, I'm quite
8 familiar with it. Is it not a mail order Ph.D. school
9 essentially you do independently?
10 A No, it's not.
11 Q Where did you do your clinical practice,
12 internships for your Ph.D.?
13 A I did it at the Good Samaritan Hospital in
14 Lebanon.
15 Q Are you telling me that Union Institute in
16 Ohio has classrooms where you spent five years doing your
17 Ph.D. ?
18 A Yes.
19 Q The Union Institute, you went to classes
20 every day at the Union Institute, sir?
21 A No, not every day at the Union Institute,
22 but there were periods of time where we met in classrooms.
23 We met for extended periods of time.
24 Q It's a long distance Ph.D. grad institution,
25 is it not?
16
1 A Not entirely.
2 Q But you did only, what, two or three times a
3 year you met for a brief period of a week there?
4 A Not entirely.
5 Q So what is the entirely part of it? Define
6 it for me, please.
7 A I spent multiple phone calls -- I spent much
8 time on the phone with my doctoral committee and my
9 (unintelligible). I spent five to ten times a year going
10 to various educational days as well as seminars put on by
11 the faculty of the Union Institute.
12 Q Right. And you drafted up your own petition
13 for your doctorate, is that correct, accepted by Union
14 Institute?
15 A That is correct.
16 Q And then you found your own clinical sites
17 to comply with the requirements of a Ph.D. in psycholo95;?
18 A That's correct.
19 Q So that's usually out of the ordinary, would
20 you not say, from the majority of Ph.D.'s that study at
21 leading med centers for their psych Ph.D.?
22 A Not any longer. In fact, there are multiple
23 sites like Union that are in existence across the United
24 States, and two of which have merit psychological
25 association approval and accreditation.
17
1 Q Do you want to tell me what percentage of
2 those are compared out of a hundred to the norm?
3 A I'm sorry, you need to repeat that.
4 Q What is the percentage of this, that you say
5 not anymore, it's not unusual, what's the percentage out of
6 a hundred, sir?
7 A Well, the percentage is low. There's no
8 question about that.
9 Q Low as to less than one percent?
10 A No, I wouldn't think it's less than one.
11 Q What would you think it to be, sir?
12 A Less than ten percent.
13 Q Can you substantiate that with data and
14 statistics?
15 A Not without the research, no.
16 Q That's right. I'll impeach you on that.
17 The question I have for you, are.ryou aware that Mrs.
18 Gerber -- it's going to be tough because I'm asking my own
19 questions. Are you aware that Marilyn Gerber is a
20 registered nurse?
21 MS. VERNEY: Objection, Your Honor,
22 relevancy.
23 THE COURT: Overruled. Do you know whether
24 she is or not?
25 THE WITNESS: Are you asking if I knew she
18
1 was a --
2 BY MS. GERBER:
3 Q Yes. Are you aware that Marilyn Gerber is a
4 registered nurse?
5 A Yes.
6 Q Are you aware that she's licensed in
7 Pennsylvania?
8 A No.
9 Q Are you aware that she's been her primary
10 and sole caregiver for approximately six years?
11 A I was not under the impression that she was
12 the primary full caregiver of Mildred Gerber.
13 Q Let me go back to another question. Who
14 provided you with historical data apart from Mrs. Mildred
15 Jane Gerber?
16 A I reviewed data that was contained in the
1~ petition .......
18 Q And have you ever done any expert
19 evaluations for the firm of Rupp and Meikle?
20 A No, I did not. -
21 Q Could I ask what you are getting paid for
22 this service?
23 A I'm being paid for my time.
24 Q And that is how much, please?
25 A One hundred and fifty dollars.
19
1 Q An hour or total?
2 A Total.
3 Q I will go back to the question. Are you
4 aware that Marilyn Gerber, who is a registered nurse
5 licensed in Pennsylvania as well as other states, has been
6 Mrs. Mildred Jane Gerber's primary caregiver and part of a
7 medical team for Mrs. Gerber for six years?
8 A No, I was not aware of that. I was under
9 the impression that other people were also part of her care
10 based on her statements that she had contact with her son
11 Fred.
12 Q Are you aware that in 1996 Marilyn Gerber
13 lived in the family home of Mildred J. Gerber and retired
14 Colonel Freddie Gerber, the first, for approximately nine
15 months?
16 A I knew that Marilyn lived there based on
17 comments, that Mildred made to me during the course.of t~e-
18 evaluation.
19 Q Are you aware in 1997 upon the fracture of
20 Mrs. Mildred Jane Gerber's left hip Miss Gerber left a
21 director of nursing position in the West Coast and came out
22 and rehabed and spent six months with Mrs. Mildred Jane
23 Gerber?
24 A No, I wasn't specifically aware of that, no.
25 Q Are you aware that in 1998 Mrs. Marilyn
20
1 Gerber was involved intimately in the consultations, the
2 care, and securing outside hospital consults for the care
3 of her father, Colonel Freddie Gerber?
4 A No, I did not know that.
5 Q Are you aware that in 1999 Mrs. Mildred Jane
6 Gerber, the lady that you examined, brought Marilyn Gerber
7 into her house in September of 1999 as her caregiver until
8 January 13th, the year 20017 Are you aware of that?
9 A I believe that Mildred brought Marilyn in
10 because Marilyn was asking to be brought in.
11 Q Is that what Mrs. Gerber told you or is that
12 your understanding?
13 A That's my understanding.
14 Q Is that what Mrs. Gerber told you?
15 A Yes.
16 Q All right. Now, on June -- are you aware,
17 sir, that from September of 2000 until. January 13th there
18 have been approximately 30 specialists and ancillary
19 specialist teams and hospitals, med centers, physical
20 therapy units and outside specialists in the care -- along
21 with Marilyn Gerber for the care of Mildred J. Gerber?
22 A I knew that other people had been consulted.
23 I didn't realize it was that many.
24 Q Are you aware that Mrs. Mildred Jane Gerber
25 has not been seen by her daughter Jane Heflin or her son
21
1 Colonel Freddie Gerber except for maybe not more than four
2 times a year for a period of maybe two hours each time?
3 A No, I wasn't aware of that.
4 Q Are you aware that on the 13th of January
5 2001, Mrs. Gerber gave her daughter a hundred dollars to go
6 out and to spend the weekend buying food at restaurants
7 because Colonel Gerber, II, and her other daughter Jane
8 Heflin were approaching for the weekend and asked her to
9 let them come independently?
10 Are you aware that since the 13th of January
11 2001, Mrs. Mildred Jane Gerber has not seen a doctor, a
12 therapist, had her lab work done or met at three
13 independent major med centers for the leading East Coast
14 neurological psychiatric physicians --
15 THE COURT: Ma'am, you are asking multiple
16 part questions --
17 MS. GERBER: That's right.
18 THE COURT: -- that nobody can follow.
19 MS. GERBER: Okay.
20 THE COURT: Ask short questions and to the
21 point.
22 BY MS. GERBER:
23 Q Are you aware, sir, that since the 13th of
24 January 2001 that Mrs. Gerber has been held essentially in
25 hostage status in her house unable to access her doctors,
22
her physical therapists, her counselors, her medication or
2 to seek scheduled appointments with neurological
3 psychiatric experts and have evaluations?
4 A She certainly gave no indication that she
5 was held hostage. In fact, she talked very well about the
6 last month in terms of having more time with her son and
7 daughter Jane.
8 Q All right. Sir, in lieu of the fact that
9 Mrs. Gerber has not been seen, and this has been verified
10 by every specialist, including the University of
11 Pennsylvania, John Hopkins and Hershey Med Center, would
12 you not be concerned, sir, that this woman for 38 days now
13 has not had access to her medication, her special
14 nutrition, her doctors, her physical therapists? Could you
15 comment on the situation of her being held at bay from
16 these specialists?
17 THE COURT: That is a totally improper
18 question. Elicit facts.
19 MS. GERBER: Pardon?
20 THE COURT: Elicit facts. It is an improper
21 question. Next question.
22 BY MS. GERBER:
23 Q My concern I have, sir, that in the brief
24 encounter of an hour and a half -- well, let me just go
25 back. Have you typed up a complete report on the
23
1 evaluation of Mrs. Gerber?
2 A I'm sorry, please repeat that.
3 Q Have you typed up your report on your
4 evaluation of her?
5 A Not yet.
6 Q When will that be due?
7 A There have been no deadlines set. I plan to
8 distribute a copy to Mr. Gerber.
9 Q I'm sure he would like you to refer to him
10 as colonel. Could you tell me the names of the tests you
11 elicited and you used to evaluate Mrs. Gerber?
12 A I used the Finney Mental State Evaluation.
13 I used the Extended Mental Status Evaluation. I used three
14 subtests off the Wechsler Adult Intelligence Scale Revised.
15 I used the Boston Naming Test. I used the Hooper Visual
16 Organization Test.
17 Q Would you spell Hooper, please?
18 A H-o-o-p-e-r. I also used -- let me refer to
19 my notes. I used the Geriatric Depression Scale and my
20 clinical interview.
21 Q All right. Let me ask you some more pointed
22 questions. Tell me what other physical symptoms can mimic
23 Alzheimer's and/or dementia?
24 A Well, several and that also needs to be
25 ruled out, and I understand that -- I mean, Mrs. Gerber
24
told me, Mrs. Mildred Gerber told me, that her health has
2 been adequate, has been fine. She complained of no
3 physical symptoms whatsoever. Although I agree that a
4 complete examination by a physician is indicated to rule
5 out her treatable causes of --
6 Q And what would that be? Give me some
7 examples of clinical -- of other diagnoses that would mimic
8 Alzheimer's and dementia? Come on, rattle off just one,
9 two, three.
10 THE COURT: Wait. Wait. Don't tell him how
11 to answer a question or that is the end of your questions.
12 Ask a question and wait for an answer. Do you understand?
13 MS. GERBER: Yes, sir, I do.
14 THE COURT: All right. Do you remember the
15 question, Doctor?
16 THE WITNESS: Yes, I do.
17 THE COURT: You may answer.
18 THE WITNESS: Depression for one can mimic.
19 Hypothyroidism can alter mental status. Various
20 medications can also do that. --
21 BY MS. GERBER:
22 Q May I ask you, did you ask Mrs. Gerber if
23 she was taking any medication?
24 A I'm sorry?
25 Q Did you ask Mrs. Gerber if she was taking
25
1 any medication?
2 A Yes, I did.
3 Q What did she say?
4 A She told me she was on none.
5 Q And you believed her?
6 A I had no reason not to.
7 Q Okay. Did you ask her about any physical
8 therapy she was involved in?
9 A No.
10 Q Did you ask her about any of her physical
11 disabilities?
12 A No.
13 Q Are you aware that Mrs. Gerber was diagnosed
14 with small -- possible small salcia CA in her left lung,
15 and was assessed to be dead by November of 19997
16 A No, I did not know that.
17 Q Are you aware that she's undergone CAT scan
18 and biopsies for her left lung dysfunction?
19 A No.
20 Q Are you aware that she has had -- that she -
21 has also been diagnosed with TB?
22 A No.
23 Q Have you seen any lab work on Mrs. Gerber?
24 A I am not a medical doctor.
25 Q That's right. Have you seen any -- did you
26
notice any tremors when you -- did you examine her
2 medically, sir, and notice any tremors in her extremities?
3 A I did not examine her medically. I examined
4 her psychologically, and, no, I did not notice any
5 significant tremors or any tremors to speak of.
6 Q If I were to tell you, sir, that she had
7 been examined by the alleged best of the Central
8 Pennsylvania area, would you be -- and you had more lab
9 work and more clinical information on her, would you be
10 more -- would you be predisposed by any chance to
11 reevaluate your diagnosis of Mrs. Gerber?
12 A I would only be predisposed to reevaluate my
13 diagnosis if other conditions turn up as being valid and
14 which can substantiate her change in cognitive functioning.
15 Q All right. Now, in lieu of the fact that
16 you saw her yesterday -- I will state before the Court
17 under oath that she hasn't been seen in 38 days by --
18 THE COURT: You just have to ask questions.
19 You will get a chance to testify.
20 MS. GERBER: Well, I --
21 THE COURT: You ask the questions.
22 MS. GERBER: Okay.
23 BY MS. GERBER:
24 Q Sir, in lieu of the fact -- if I would tell
25 you that she has not been seen in 38 days, no meds, no
27
nutrition, not seen her specialist at Penn, Hopkins,
2 Hershey Med Center and the other primary care physicians
3 for 38 days, is it possible that Mrs. Gerber would present
4 herself totally different to you yesterday?
5 A I suppose it's possible, but given the
6 nature of her presentation and the results, the nature of
7 the results, I was certain of my diagnosis based on the
8 results I got from the evaluation.
9 Q And if I were to tell you, sir, that in 1998
10 until 1999 for approximately 20 months Mrs. Gerber was kept
11 isolated and essentially from social, medical treatment or
12 any other outside treatments, would that -- would that --
13 from her son Colonel Freddie Gerber and her daughter Jane
14 Heflin, would that make you reconsider Marilyn Gerber being
15 the designated person that's going to harm her?
16 A No, it would not.
17 Q Why is that?
18 A Because the nature of her conversation to me
19 about her son and her daughter, Jane and Fred, was wholly
20 positive, and the nature of her conversation about her
21 daughter Marilyn was clearly she was distressed. She was
22 unhappy. She spoke of feeling guilt and like a failure as
23 a mother because of the problems she saw her daughter
24 Marilyn manifesting.
25 Q What was that? What were those problems,
28
1 sir?
2 A I can only report what she told you -- what
3 she told me.
4 Q What were they, sir?
5 A She reported that Marilyn has been very
6 demanding to her about spending Mildred's money. She has
7 felt pressure to comply with Marilyn's requests, whatever
8 they might be.
9 Q Did she elucidate what those requests were,
10 sir?
11 A Not more than to spend money.
12 Q So you didn't ask about any other thing,
13 like, other than money Mrs. Gerber -- did you ask her what
14 other pressures they were? Did you ask her to identify
15 what those pressures were?
16 A Not at the time, no.
17 Q Why was that?
18 A It wasn't germane. I understood enough at
19 that point that talking about Marilyn was exceedingly
20 difficult for her and --
21 Q How did you surmise that, sir, I mean, arise
22 at that conclusion?
23 A As she was sitting in my office and she was
24 talking about Marilyn, she became more visibly distressed.
25 She had trouble maintaining attention. She began ringing
29
1 her hands. She began looking away from me and changing the
2 subject.
3 Q Is that possible in her changing her subject
4 that she does not want to be forced or intimidated into
5 having her daughter cited as some potentially dangerous
6 caregiver or, you know, what is it, I forget the legal term
7 they use here, harm to her estate?
8 Is it possible, sir, that -- or, Doctor,
9 that she is avoiding having to be pressured into make a
10 decision about her daughter? Is that a possibility? In
11 lieu of all of Marilyn Gerber's caregiving for her for six
12 years, is it possible --
13 THE COURT: Wait. Wait.
14 MS. GERBER: -- that she could be
15 intimidated?
16 THE COURT: Wait. Wait. Don't repeat five
17 times what the question is. He understands it.
18 THE WITNESS: I suppose it's possible.
19 BY MS. GERBER:
20 Q It is possible. If I were to tell you, sir,
21 that there are some severe, severe traumatic dysfunctions
22 that occurred in this family that were specifically outed
23 by Colonel Freddie Gerber, II, that ended up shaming Mrs.
24 Mildred Gerber and this family, would it be possible for
25 Mrs. Gerber to be caught now between all three of her
30
1 children trying to satisfy and love equally her three
2 children and be forced to make sides -- or take sides? Is
3 that a possibility?
4 A I'm not sure the point of your question, to
5 be honest with you.
6 Q Let me try it this way. If Colonel Freddie
7 Gerber had told his mother of 86 years that he could be
8 court-martialed, lose his pension and be publicly shamed
9 for his actions that could be exposed in the very near
10 future, versus Miss Marilyn Gerber who is single and is not
11 in the military with a high ranking, a high profile name,
12 is it possible that Miss Gerber could be -- Mrs. Gerber
13 could be intimidated into actions that she would want to
14 change the subject on, ring her hands about, look away, and
15 change the subject on?
16 A Yes, I believe that Mrs. Mildred Gerber can
17 be intimidated.
18 Q Are you aware, sir, under the Adult
19 Protective Services Act -- I don't have it right in front
20 of me. I can secure it. Hold on a second. Are you aware
21 under the Pennsylvania Code, Title 6, on -- are you
22 familiar with the Pennsylvania Code, Title 6, on aging?
23 A Vaguely. I have it in my files.
24 Q You are only vaguely familiar with it?
25 THE COURT: That is what he said. Next
31
1 question.
2 MS. GERBER: Okay. I just wasn't sure.
3 BY MS. GERBER:
4 Q Are you aware, sir, that for under -- that
5 an adult person can be not only physically harmed but they
6 can be emotionally harmed, economically harmed, and
7 intimidated psychologically with enough time and pressure?
8 A Isn't that true for anyone?
9 Q You didn't answer the question.
10 THE COURT: Yes, he did. It is true for
11 everyone. It is obvious. Next question. Elicit facts
12 relevant to this case.
13 BY MS. GERBER:
14 Q Are you aware under the nurse --
15 THE COURT: Don't ask him any questions
16 about the law. I am not allowing you to ask him any
17 questions regarding the law. Elicit facts.
18 BY MS. GERBER:
19 Q Would you -- in lieu of the information that
20 I have told you about Miss Marilyn Gerber being her
21 caregiver, a licensed nurse, geriatrically licensed,
22 licensed to make psychosocial evaluations, intimately
23 involved in her medical care, especially in the last six
24 months due to her left lung diagnosis, would you be more
25 predisposed now to ask for more information before you
32
1 would concur about Mrs. Mildred Gerber's incapacitation?
2 A The only other information I would want here
3 would be more thorough medical documentation to rule out
4 other causes. Other than that, I am satisfied with the
5 results of my examination.
6 Q How long have you -- can you determine that
7 Mrs. Mildred Gerber has been allegedly incapacitated?
8 A The physician decided that there has been a
9 more rapid decline over the past six months with more
10 gradual decline over the last two years.
11 Q And if I were -- if I were to tell you, sir,
12 that the last two years Colonel Freddie Gerber, II, and
13 Jane Heflin has testified there's actually nothing wrong
14 with their mother, there's no change and major documents
15 have been --
16 THE COURT: Well, there has been no
17 testimony here in this court. Elicit facts.
18 BY MS. GERBER:
19 Q Could you state --
20 THE COURT: Don't ask him opinions based on
21 hypotheticals. Elicit facts.
22 BY MS. GERBER:
23 Q Sir, in the last two years, Colonel Freddie
24 Gerber and Jane Heflin has stated there's nothing wrong
25 with Mrs. Mildred Gerber. They have forced her to sign
33
1 documents and to testify.
2 THE COURT: I am not allowing that type of
3 question. You can testify yourself if you want to later,
4 but you are not asking the doctor those questions.
5 BY MS. GERBER:
6 Q Doctor, are you saying that Mrs. Mildred
7 Gerber is suffering from Alzheimer's or depression or
8 dementia, which is it? I wasn't sure in the phone. I
9 couldn't hear you from that far away.
10 A The accurate diagnosis is Alzheimer's plus
11 the -- I'm sorry, I'll start over. Dementia of the
12 Alzheimer's type with depression.
13 Q Sir, would you support Mrs. Gerber, Mildred
14 Gerber, being -- because there's two of us. I'm a Miss and
15 there is a Mrs., Mrs. Mildred Gerber, sir, would you
16 support her meeting and keeping her ordered lab work and
17 cognitive neurological examinations with three major med
18 centers as they have been scheduled?
19 A Yes.
20 Q And would you -- were you asked ahead of
21 time by Richard Rupp as to the type of evaluation you were
22 looking for? Was there any discussion by Richard Rupp when
23 he called you to do this evaluation what he was looking
24 for?
25 A He indicated that he wanted to know the
34
1 status, whether or not Mrs. Mildred Gerber was
2 incapacitated and whether or not she could make credible
3 decisions for herself and understand them.
4 Q Actually, sir, the guardianship today is
5 only asking for property. They have not asked for medical
6 guardianship. Under this distinction, is it possible that
7 more evaluation needs to be done, observe Mrs. Gerber's
8 ADL's, that's activities of daily living, and functions in
9 order to come at a more complete and in-depth evaluation of
10 her?
11 A Well, that might be helpful. I doubt that
12 there will be substantially new information learned from
13 such an observation.
14 Q And if there is, are you open to accommodate
15 your evaluation to change it?
16 A Certainly.
17 MS. GERBER: Okay. That's all. Thank you.
18 THE COURT: Any redirect?
19 MR. RUPP: Yes, Your Honor.
20 REDIRECT EXAMINATION
21 BY MR. RUPP:
22 Q Dr. Sabo, it's Richard Rupp.
23 A Yes.
24 Q There were a lot of things said to you
25 saying did you know, did you know on your examination by
35
1 Marilyn. You do not know whether or not those things that
2 were proposed to you were true or not, do you?
3 A Correct.
4 Q Are you aware of Mrs. Mildred Gerber's
5 educational background?
6 A I understand that insofar as she told me,
7 meaning that she told me, she had a Bachelor's Degree in
8 home economics and a Master's Degree from Cornell in home
9 economics.
10 Q In your examinations of her, could you
11 compare her with where she should be with her peers?
12 A I believe she is well below. Now
13 statistically I don't have the numbers for you, but in
14 national samples that have had higher education and
15 cognitive loss in older age, it's been found over and over
16 again that people with higher education have less loss of
17 coqnitive function into their eighth and ninth decades of
18 life when compared to other people of similar age with less
19 education.
20 Q So where was Mrs. Gerber?
21 A I'm sorry, repeat that, please.
22 Q Could you compare then Mrs. Gerber to where
23 her peers would be?
24 A She is functioning at a lower level than her
25 peers if she's judged with other women of similar age and
36
1 education.
2 Q Did you ask her what the date was on the
3 date you were meeting her?
4 A Yes.
5 Q Did she know the day's date?
6 A No, she did not. She told me it was
7 sometime in the 1980's, and she thought we were in the
8 month of April.
9 Q Did you recommend to Colonel Fred Gerber
10 that he have his mom examined at Hershey Medical Center?
11 A Yes, I did. I gave him the name of a
12 specialist, a geriatric psychiatrist at Hershey Medical
13 Center, as one possible resource for him to have his mother
14 further examined and treated by if necessary.
15 Q Based on everything you know from your exam
16 and from the petition that you read signed by Colonel
17 Gerber, is it stili your opinion that Mildred J. Gerber is
18 an incapacitated person?
19 A Yes, I believe that.
20 MR. RUPP: No further questions, Your Honor.
21 MS. VERNEY: No questions, Your Honor.
22 THE COURT: Anymore?
23 MS. GERBER: Yes.
24 THE COURT: Keep within the scope of the
25 recross.
37
1 MS. GERBER: Yes.
2 RECROSS EXAMINATION
3 BY MS. GERBER:
4 Q Doctor, are you referring to the famous nun
5 study for women of higher education versus --
6 THE COURT: He didn't mention anything about
7 a nun study. Next question.
8 BY MS. GERBER:
9 Q The study you referred to, sir, as well
10 below her care, what study are you eluding to?
11 A I'm referring to studies that have been done
12 on national -- these are cross-sectional samples done on
13 people looking at education as -- I guess that's an
14 insulator or as a way of slowing the regression of
15 cognitive loss in older age.
16 Q Were you given Mrs. Mildred Gerber's MRI's?
17 A No, I was. not.
18 Q And were you given any data on any possible
19 history of her TIA's and infarcting at all?
20 A No, I was not.
21 Q Did anybody supply any medical, historical
22 background on Mrs. Gerber for you to make this
23 comprehensive evaluation?
24 A No. I was given the information contained
25 in the petition. I also talked with Mrs. Gerber, and her
38
1 presentation during the course of the evaluation did not
2 suggest there were physical or medical problems that needed
3 immediate attention, although I certainly support her being
4 treated as needed.
5 Q Sir, I don't mean to be rude, but I don't
6 think you have MRI x-ray eyes, you can't see through --
7 THE COURT: Don't ask questions like that.
8 They are rude. Next question.
9 BY MS. GERBER:
10 Q Second, could you tell me who you
11 recommended at Hershey as a specialist?
12 A Dr. Roger Cadieux.
13 Q Could you spell his last name.
14 A C-a-d-i-e-u-x, Dr. Roger Cadieux.
15 Q I would like to give you some data and have
16 you respond to it. Mrs. Gerber has been followed --
17 THE COURT: You are way beyond the scope of
18 the redirect. Next question.
19 BY MS. GERBER:
20 Q The leading cognitive researcher in the East--
21 Coast --
22 THE COURT: No, will not allow it. Elicit
23 facts.
24 MS. GERBER: There is a --
25 THE COURT: Look, anymore questions?
39
1 MS. GERBER: Sir, I'm not an attorney.
2 THE COURT: I know you are not. You are not
3 asking proper questions. You are doing all right.
4 Anything else factually?
5 MS. GERBER: Can I mention a fact to him and
6 have him respond?
7 THE COURT: No. Get off the line you are
8 on.
9 BY MS. GERBER:
10 Q Sir, if you were provided with data that
11 Mrs. Mildred Gerber had three appointments for leading
12 cognitive --
13 THE COURT: You are beyond the scope of the
14 redirect, ma'am.
15 MS. GERBER: Would you not --
16 THE COURT: Not allowed. Anything further
17 on redirect?
18 MS. GERBER: Yes.
19 BY MS. GERBER:
20 Q In terms of Mrs. Gerber's education, what
21 year did she tell you she got her Master's from Cornell?
22 A I'm looking through my notes.
23 Q That's fine. Take your time.
24 A I did not write the date down. As I recall,
25 she said it was in the 1940's, but that's my recollection.
40
1 Q And when did she get her undergrad degree in
2 Home Ec.?
3 THE COURT: It would have been before that.
4 That is incidental. Anything else relevant? That is
5 incidental, years ago.
6 MS. GERBER: He's suggesting, sir, that --
7 THE COURT: Ma'am, anything else relevant?
8 MS. GERBER: Yes, sir. The problem is --
9 THE COURT: Question.
10 MS. GERBER: -- one, I'm not an attorney,
11 and, two, I'm an expert in this.
12 THE COURT: Have a seat.
13 MS. GERBER: Fine. Sorry.
14 THE COURT: Doctor, thank you. You are
15 excused.
16 THE WITNESS: Thank you very much.
17 THE COURT: Next witness~-
18 MR. RUPP: Your Honor, I would call Jennifer
19 Conway.
20 Whereupon,
21 JENNIFER CONWAY,
22 having been duly sworn, testified as follows:
23 DIRECT EXAMINATION
24 BY MR. RUPP:
25 Q Could you state your full name for the
41
1 record.
2 A Jennifer Conway.
3 Q And Miss Conway, can you tell me where you
4 are employed?
5 A PNC Bank in the New Cumberland office.
6 Q How long have you worked there?
7 A Going on five years.
8 Q What's your current position at that bank?
9 A Branch service manager.
10 Q Are you familiar with Mrs. Gerber, Mildred
11 J. Gerber?
12 A Yes, I am.
13 Q And is she a customer of PNC Bank?
14 A Yes, she is.
15 Q Can you describe her for me?
16 A A sweet, gentle lady.
17 ...... Q Do you know her age?
18 A Around 86.
19 Q Do you recall seeing her on January 12th, on
20 a Friday in January of this year?
21 A Yes.
22 Q And on that January 12th of this year, can
23 you recall Mrs. Mildred Gerber coming in your bank?
24 A Yes.
25 Q And was anyone with her?
42
1 A Yes, her daughter Marilyn.
2 Q And can you describe how Marilyn was on that
3 date?
4 A She was quite irate because they wanted to
5 cash a check with the teller and the teller couldn't cash
6 the check so they waited for me to come back into the
7 office.
8 Q Do you recall the reason why the teller
9 could not cash a check?
10 A The account was overdrawn.
11 Q Whose account?
12 A Mildred's.
13 Q And Mildred's account was overdrawn?
14 A Correct.
15 Q What kind of a check was -- what was the
16 amount of the check trying to be cashed?
17 A I'm not sure which check Mrs. Gerber was .....
18 trying to cash. I know I just looked at the account when
19 they sat down at my desk and saw it was overdrawn.
20 Q And what happened when you told Marilyn and
21 Mildred that Mildred's account was overdrawn?
22 A Marilyn got very upset, saying that that
23 couldn't be. I tried to resolve the situation. Marilyn
24 had then called her brother Fred on her cell phone, and
25 then she passed the cell phone to her mom and Mildred
43
1 talked to him. And then I got on the phone with him, and
2 he asked me to transfer money from the other account into
3 their checking -- the old account.
4 Q And whose names are on the other account in?
5 A It's a joint account between Mildred and
6 Fred.
7 Q And did you transfer monies from the other
8 account?
9 A Yes. When they came into the bank, Marilyn
10 stated that they had written checks to have the car
11 repaired and for Mrs. Gerber to have her hair done. So in
12 talking with Fred, we transferred money from that
13 account -- from the new account into the old account to
14 cover those checks and then to give Mrs. Gerber $500.00 in
15 cash.
16 Q After having covered those checks and paying
17 $500.00, what .happened next?
18 A Marilyn presented a check for a thousand
19 dollars, wanted that check cashed against the new account,
20 and I explained to her that I could not cash that against
21 the new account because there wasn't enough money in the
22 old account and her check was drawn on the old account.
23 Q How did Marilyn react to that?
24 A She was upset. She started indicating that
25 she didn't understand why that we could honor the checks
44
1 that she already wrote and transfer money. She started
2 saying about how PNC doesn't do this for everybody or the
3 Gerbers, you know, are so great that they'll just give them
4 $500.00 in cash and cover checks that are coming through
5 the account, started saying things in that sort.
6 Q After you denied cashing the $1,000.00
7 check, did Mrs. Gerber do anything with that thousand
8 dollar check?
9 A She tried to take the check back saying it
10 was no good, and Marilyn said, no, mom, you gave this check
11 to me and put it back into her purse.
12 Q Was there some kind of an exchange or
13 physical exchange?
14 A The check was sitting on my desk and
15 Marilyn was holding it. Mrs. Gerber went to take it, and
16 Marilyn quick pulled it and put it back in her purse.
1.7 Q And then did Marilyn ask about the joint
18 account?
19 A Yes. She would -- of course I couldn't give
20 her any information on it. So she would tell her mother,
21 you know, mom, you have a right to know. You have a right
22 to know where this money is coming from.
23 Q And then what happened then?
24 A And then Mrs. Gerber, to Marilyn's wishes,
25 would get the information.
45
1 Q So you had to give up the information on the
2 joint account because Mildred asked?
3 A Correct.
4 Q And Mildred was demanded to ask by Marilyn?
5 A Correct.
6 MS. GERBER: Your Honor, am I allowed to
7 object to what he's saying?
8 THE COURT: Yes. You object?
9 MS. GERBER: He's leading the witness, Your
10 Honor.
11 THE COURT: You are leading. Ask direct
12 questions.
13 MR. RUPP: Thank you, Your Honor.
14 BY MR. RUPP:
15 Q What happened with the second account, the
16 joint account?
17 A I transferred money from it -- oh, okay.
18 Marilyn had asked her mom to get the balance that was in
19 that account and I told them the balance -- well, Mrs.
20 Gerber had asked me, and I told her the balance was
21 $630.00, and then Marilyn said, you know, fine, mom, why
22 don't you give me that $630.00.
23 Q And what happened?
24 A Mrs. Gerber looked at her and said, Marilyn,
25 is this all, is this everything, you're not going to ask me
46
1 for anymore money? She said, no, mom. And then Mrs.
2 Gerber asked me, she said, fine, go ahead and give her the
3 $630.00 and please don't tell Fred.
4 Q So Mrs. Mildred Gerber basically begged
5 you --
6 THE COURT: Wait. You are asking another
7 leading question.
8 MR. RUPP: All right, Your Honor.
9 THE COURT: Elicit facts.
10 BY MR. RUPP:
11 Q How much money was remaining in any accounts
12 at the end of the 12th of January of 2001, in Mrs. Gerber's
13 accounts?
14 A There was approximately $2.00 in each
15 account.
16 Q How many accounts were there?
17 A There was two. There was the new checking
18 account that we had recently opened, and then there was the
19 older checking account.
20 Q Have you seen Marilyn come in with her
21 mother on prior occasions?
22 A Yes.
23 Q Do you recall how many?
24 A Probably about 10, 12.
25 Q Do you recall when that started to happen?
47
1 A September, October.
2 Q Do you recall any exchanges that occurred
3 between Marilyn and Mildred when they were in the bank?
4 A In the beginning it wasn't so bad. Marilyn
5 would push her mother to ask for information, and what I
6 think would be trying to gain more information on her
7 accounts. She would direct her mom to ask questions.
8 Q And did her mom comply?
9 A Yes.
10 Q Do you recall a revocation being faxed to
11 you?
12 A Yes, I do.
13 Q I am going to show you what is Exhibit A to
14 our petition that I have also marked Exhibit 1. Can you
15 identify this for the Court?
16 A Yes. That's a revocation that was faxed to
17 my office on December 26. I had that day off, and I
18 received it on the 27th. What it states is that Mrs.
19 Gerber is revoking the powers of attorney that she had
20 given to Fred.
21 Q What did you do with that document?
22 A I sent it onto my legal department to get
23 approval, and they denied approval because I had a faxed
24 copy, no appearance of the original, and that it wasn't
25 notarized or had a signature guarantee.
48
1 Q Were you ever asked about that document by
2 either Mildred or Marilyn?
3 A Yes. Marilyn mentioned that it was, you
4 know, a legal document drawn up by some legal power and
5 that, you know, it would stand in court or what have you.
6 But I explained to her that it did not hold water with PNC
7 Bank because it was just a faxed copy.
8 Q Do you know if there are any funds that are
9 being automatically deposited or were being automatically
10 deposited in Mrs. Gerber's accounts?
11 A Yes.
12 Q Can you tell the Court what?
13 A There's social security, AFES and civil
14 service.
15 THE COURT: Social security and what else?
16 THE WITNESS: I think it's AFES.
17 THE COURT: What is that?
18 THE WITNESS: It's a retirement.
19 THE COURT: What else? What is the third
20 one?
21 THE WITNESS: Civil service.
22 THE COURT: Okay.
23 BY MR. RUPP:
24 Q Do you know how much those total or what
25 they are individually?
49
1 A I don't recall individually. The social
2 security is over 600. They total well over $3,000.00 a
3 month, probably about 32, 35 hundred a month.
4 Q You just testified that on January 12th,
5 2001, Mrs. Gerber's accounts were left with basically
6 $4.00. If you are familiar with it, what did Mrs. Gerber
7 carry in her accounts prior to that time, if you know?
8 A Depending on how far back you go, Mrs.
9 Gerber was always known to have in the likes of 30 to
10 $40,000.00 on deposit at PNC Bank in a combination of her
11 checking account and her money market account.
12 Q Have you had any further contact after
13 January 12 with either Mildred or Marilyn?
14 A I'm trying to think. January 12th was a
15 Friday. Martin Luther King Day, the day after that,
16 Mildred came in with Jane and they opened up a new safe
17 deposit box.
18 And then on two Fridays ago, I'm not sure of
19 the date on the top of my head, but Mrs. Gerber and her
20 daughter Jane had come into the bank, and Jane had locked
21 the keys in the car. They were waiting in our lobby area
22 for Duty's -- we had called Duty's Lock and Key to come and
23 help open the car for them.
24 Marilyn had come in, started causing a
25 scene, you know, between her and Jane and Mrs. Gerber and
50
1 then they -- and then I contacted the police because, you
2 know, I was notified by, you know, other people in PNC Bank
3 that if she comes in and causes a scene to just go ahead
4 and call the New Cumberland Police Department, and I did
5 that. At that point they walked outside.
6 Q Have you had any contact with Marilyn at all
7 since that incident?
8 A Marilyn had called me.
9 Q Do you recall the conversation?
10 A Yes, I do.
11 Q What was the conversation?
12 A She first started -- she wanted to know
13 about my legal counsel with the bank. She wanted a phone
14 number for them. I told her I wasn't sure if I could give
15 out that information, I would have to contact them, or how
16 they handle that.
17 She started saying that I needed to seek
18 legal counsel, how this case is going to become a national
19 hearing. It's going to be all over the news. It's going
20 to put, you know, PNC Bank to shame and that I need to seek--
21 my own personal counsel depending the outcome of this
22 hearing. She put down -- of course she put down her
23 brother Fred.
24 Q Did you feel intimidated by that call?
25 A You bet.
51
1 THE COURT: While we are going through this,
2 are you challenging whether she is incapacitated?
3 MS. GERBER: Yes, sir, and the guardianship.
4 THE COURT: And the appropriateness of the
5 guardian?
6 MS. GERBER: Yes, both.
7 THE COURT: If she is incapacitated, who
8 would you seek to have as a guardian?
9 MS. GERBER: I would like to put myself
10 forward, and if you find that too close to home, then I
11 would like to make a fair review of a trustee or a bank,
12 but not PNC and not any other previous banks. That would
13 be unfair. I've done a search for three years on this,
14 Your Honor, to be prepared for this.
15 THE COURT: That is all I needed to know.
16 BY MR. RUPP:
17 Q And you are the assistant branch manager of
18 PNC Bank?
19 A Branch service manager, was assistant branch
20 manager at one point.
21 Q Okay. Jennifer, can you identify what I
22 have marked as Gerber No. 2?
23 A Um-hum.
24 Q What is that?
25 A They are Mrs. Gerber's account statements.
52
1 This is from January, looks like the entire year.
2 Q They are not all there. We are missing a
3 few.
4 A Okay, yeah.
5 Q But they are -- can you just flip through
6 there. Are they from Mrs. Gerber's checking account?
7 A Yes.
8 THE COURT: What did you mark those as, what
9 exhibit number?
10 MR. RUPP: Exhibit 2. Exhibit 1 is the
11 revocation from the petition.
12 THE COURT: Okay.
13 BY MR. RUPP:
14 Q Would you look at Exhibit No. 3, and if you
15 can tell what three is or two pages there.
16 A It's a photocopy of a check drawn on Mrs.
17 Gerber's account, and it's payable to Marilyn Gerber-for
18 $2,000.00. And then here's a check for $5,300.00 paid to
19 Charles Mackin. It's not a clear copy, but it looks like
20 Mackin. --
21 Q That's fine. Can you identify number four?
22 A It's a check drawn on Mrs. Gerber's account,
23 again, payable to the Clerk of Courts for $200.00.
24 Q And can you identify number five which is
25 some pages there?
53
1 A Okay. Again, they are checks drawn on Mrs.
2 Gerber's account. One is payable to Marilyn for $3,000.00,
3 another one to Marilyn for 75,000. One to Lord and Taylor
4 for 101 --
5 MS. GERBER: Excuse me. Could I ask her to
6 repeat 75,000?
7 THE WITNESS: Sorry.
8 MS. GERBER: Did you say 75,000?
9 THE WITNESS: $75.00.
10 MS. GERBER: I thought you said thousand.
11 Could I ask the court reporter to --
12 THE COURT: She said thousand. She
13 misspoke. It is $75.00. And what was the other one,
14 3,000?
15 THE WITNESS: Three thousand.
16 THE COURT: And $75.00?
17 ...... THE WITNESS: $75.00. One payable to Lord ...........
18 and Taylor for $101.43. Here's one for $2,200.00 payable
19 to Marilyn Gerber. Here's one for $243.50 it looks like.
20 MS. GERBER: Sir, if you want to speed it
21 up, I don't object to any of these checks. I've got
22 copies.
23 THE COURT: Well, he is having her identify
24 what they are.
25 MS. GERBER: That's fine. In the interest
54
1 of time, I don't object.
2 THE WITNESS: I can't read what that is.
3 MR. RUPP: That's okay.
4 BY MR. RUPP:
5 Q But they are all from Mrs. Gerber's account?
6 A Yes. Here's another thousand dollars from
7 Marilyn off of the account.
8 Q Then number six, are these also checks from
9 the account for Mrs. Gerber?
10 A Yes.
11 Q Is there a $3,000.00 check in there?
12 A There is a $4,000.00 check for Marilyn
13 Gerber. Oh, yes, there is a $3,000.00 check for Marilyn
14 Gerber also.
15 Q Exhibit No. 7, are these also checks from
16 Mrs. Gerber's account?
17 A Yes. There'~ one for-Marilyn for a thousand -
18 dollars, one for cash for a thousand dollars, bank card
19 services $3,000.00.
20 Q And Exhibit No. 8, are those also checks
21 from Mrs. Gerber's account?
22 A Um-hum.
23 MS. GERBER: Your Honor, he's eluding to
24 exhibits that I don't see. Did you say Exhibit 8?
25 MR. RUPP: Right. I gave you them.
55
1 MS. GERBER: I don't see Exhibit 8.
2 Supposed to look at each page here and find it because I
3 don't see -- none of these have been stamped with a sticky
4 that the Court puts on.
5 THE COURT: You didn't put the exhibit
6 numbers on hers?
7 MR. RUPP: No. I only had one set of
8 stamps. I can mark them for her.
9 THE COURT: Keep GoinG. Identify eight.
10 THE WITNESS: Here's a check for Marilyn
11 Gerber for 1,500, Marilyn Gerber 600.
12 MS. GERBER: What are the dates? I have no
13 exhibit numbers.
14 THE COURT: Ma'am, when you Get her, you can
15 question her.
16 MS. GERBER: Got it. Sorry.
17 ....... .~. THE WITNESS: Marilyn~Gerber, 3,0100,_.~cash
18 200 -- I'm sorry, 100, looks like T. Bob, I can't read the
19 writinG, but it's $1,192.00, Comcast for $27.57, and Auto
20 Sun for $63.60. --
21 MR. RUPP: Okay. Thank you. Thank you very
22 much. Your Honor, I have no further questions of Miss
23 Conway.
24 THE COURT: Ms. Verney.
25
56
1 CROSS EXAMINATION
2 BY MS. VERNEY:
3 Q Ma'am, when Marilyn and Mrs. Gerber were in
4 your presence, how did Marilyn treat Mrs. Gerber?
5 A She's very forceful with her to get her to
6 relieve information.
7 Q Would you characterize that as being rude
8 and demanding of her mother?
9 A Yes.
10 Q And could you tell us how her mother reacted
11 to that behavior? Was her mother intimidated by her?
12 A Yes. She would --
13 MS. GERBER: Objection, sir. I don't think
14 she can make that psychological determination.
15 THE COURT: Overruled. She is giving her
16 own impression.
17 THE WITNESS: She would try at first, you
18 know, to keep control of what is hers, but, you know, it
19 only took a minute that she would, you know, breakdown.
20 BY MS. VERNEY: -
21 Q Those checks that you just went over, can
22 you tell me the time period?
23 A Yes. These, I think, were all -- there's
24 December of 2000, November, October, September. They start
25 at December of '99, January of 2000. Here's April of 2000.
57
1 Here's September, October on through to December 2000.
2 MS. VERNEY: That's all I have, Judge.
3 THE COURT: Questions.
4 CROSS EXAMINATION
5 BY MS. GERBER:
6 Q Miss Conway, do you like Miss Gerber?
7 A Yes.
8 THE COURT: Stay behind the bar, ma'am.
9 MS. GERBER: Oh, I'm sorry. I wasn't sure.
10 Right here?
11 THE COURT: You can stand right here. If
12 you need to show her documents, that is something
13 different.
14 BY MS. GERBER:
15 Q Do you like Miss Gerber?
16 A Yes, I do.
17 Q From hearing-your testimony, one wouldn't
18 think that you have a good impression about her.
19 THE COURT: Don't ask her impressions. Just
20 elicit facts.
21 BY MS. GERBER:
22 Q The information that you gave -- the
23 information, excuse me, that Richard Rupp, Esquire, gave,
24 was that from a cross -- a time he spent with you in a
25 telephone conversation?
58
1 A What information was that?
2 Q You gave him lots of information, almost
3 hearsay of what transpired on --
4 THE COURT: Ma'am, I am not going to allow
5 you to ask questions about how the case got prepared.
6 Elicit facts.
7 BY MS. GERBER:
8 Q Were you prepared and coached for this as a
9 witness for today?
10 A No.
11 Q The information you provided to this Court
12 was almost verbatim hearsay. Did you keep notes?
13 MS. VERNEY: Objection, Your Honor, to the
14 characterization.
15 THE COURT: Sustained. Next question.
16 Elicit facts or your cross examination is going to end.
17 BY MS. GERBER:
18 Q The checks that -- you said that you saw
19 Marilyn Gerber in the court -- excuse me, in the bank 10 to
20 12 times. Over what period of time?
21 A From August, September of 2000 on.
22 Q And yet in just previous testimony you said
23 it was from September, October on. Are you refreshing your
24 memory now?
25 A Well, I'm going for a ballpark, the later
59
1 end of 2000.
2 Q And each time you were rendering service to
3 Miss Marilyn and Mildred Gerber 10 to 12 times or you just
4 saw them in the bank 10 to 12 times?
5 A Saw them in the bank.
6 Q How many times did you deal with Marilyn
7 Gerber with Mrs. Gerber?
8 A I'm not sure.
9 Q Could you say --
10 A Six or eight ballpark.
11 Q Six or eight times acrossed your desk --
12 A Yes.
13 Q -- they sat down? Six to eight times. How
14 could you verify that?
15 THE COURT: She does not have to verify it.
16 That is what her testimony is. Next question.
17 .... BY MS. GERBER:
18 Q At anytime did Mrs. Gerber, Mildred Gerber,
19 give power of attorney to Marilyn Gerber?
20 A Yes.
21 Q When was that?
22 A I'm not sure of the exact date, probably
23 November 2000.
24 Q But you keep documents on that, correct? We
25 could subpoena documents and the signatures of the POA of
60
1 that? You have that --
2 A Yes, I have the paper but it was revoked.
3 Q I'm not asking you that. I'm not asking
4 you --
5 THE COURT: Look, she has already told me
6 she gave power of attorney to you. Go ahead.
7 BY MS. GERBER:
8 Q What date was that?
9 A It was sometime in November. I'm not sure
10 of the exact date.
11 Q You're sure?
12 A I'm guessing sometime in November.
13 Q Did Mrs. Gerber and -- I'll go Marilyn and
14 Mildred because we both have the same initials and the same
15 last name. Did Millie and Marilyn ever come in to do wire
16 transfers together?
17 _~ A Throughout the year of 2000, Mrs. Gerber.had
18 come in to --
19 Q Excuse me. I'm asking you a question,
20 please, and --
21 THE COURT: Wait. Don't tell her how to
22 answer. If she is going out of the scope, I will tell her.
23 Now, ask another question.
24 MS. GERBER: She's going out of the scope of
25 the question.
61
1 THE COURT: Ask another question.
2 BY MS. GERBER:
3 Q Let's go back to power of attorney. Did
4 Mrs. Gerber willingly grant power of attorney to Marilyn
5 Gerber in November?
6 A Yes, she granted power of attorney.
7 Q At that time did you ask Mrs. Gerber if she
8 wanted to set up a joint checking account with Marilyn and
9 Mildred Gerber?
10 A Yes.
11 Q And what was Marilyn Gerber's response?
12 A What was your response?
13 Q Yes.
14 A My response to you?
15 Q My response.
16 A That you wanted a joint account.
17 Q You are stating under oath that I --
18 A I must not be following this question.
19 Q I don't think so. Let me state it again and
20 slowly. --
21 A Okay.
22 Q When Millie and Marilyn were acrossed the
23 desk from you in November and Mrs. Gerber granted power of
24 attorney to her daughter --
25 A Yes.
62
1 Q -- did you ask at that time of Mrs. Gerber,
2 Millie, do you want -- I know you didn't say Millie, you
3 said Mrs. Gerber. I'm just trying to separate Millie and
4 Marilyn.
5 A That's fine.
6 Q Did you say to Millie, do you want a joint
7 checking account with your daughter? Did you ask Millie
8 that question?
9 A No, no.
10 MS. GERBER: Your Honor, I'm not an attorney
11 and I'm not trying to be a TV attorney, but I would like to
12 impeach her for her testimony.
13 THE COURT: Ask questions. That is the way
14 you impeach witnesses.
15 MS. GERBER: Okay, then I'm impeaching her.
16 That's why I asked for a continuance for substitution of an
17 attorney ........
18 THE COURT: Go ahead. Ask her another
19 question. If you are out of line, I will tell you. If you
20 are not -- --
21 MS. GERBER: I know you will. You are doing
22 a good job.
23 THE COURT: Go ahead. Don't forget what the
24 scope of what I have to decide is, which is, one, is the
25 lady incapacitated and, two, if she is, who the guardian
63
1 should be. Keep that in mind when you are asking
2 questions.
3 MS. GERBER: I am, Your Honor. That's why
4 this is important.
5 THE COURT: Go ahead.
6 BY MS. GERBER:
7 Q At that time could you say -- I'm going to
8 make a statement. You either agree or disagree. You asked
9 Millie in Marilyn's presence do you want a joint checking.
10 Marilyn answered, no, Jennifer, I do not want a joint
11 checking. And then Marilyn asked you the specifics and
12 legality of a joint checking account and then Jennifer
13 Conway said --
14 THE COURT: Ma'am, stop. I do not need to
15 know that. Next question. It is not relevant.
16 BY MS. GERBER:
17 .... Q Does that refresh your-memory?
18 THE COURT: Ma'am, I said get to something
19 else.
20 BY MS. GERBER:
21 Q During the time that power of attorney was
22 granted to Marilyn Gerber, was it also a joint power of
23 attorney along with the fact of Fred Gerber?
24 A Yes.
25 Q So there was no revocation of Fred Gerber's
64
1 power of attorney then?
2 A The only revocation that I received to
3 revoke Fred's power of attorney was the faxed copy, Exhibit
4 1, or that first paper that he showed, and it was not
5 accepted by my legal department.
6 Q Did Marilyn Gerber write any checks as power
7 of attorney?
8 A I'm not sure.
9 Q Are you aware that the bank instructed her
10 how she was to sign checks as power of attorney?
11 A Yes.
12 Q Who told you that?
13 A I instructed that. When you sign as power
14 of attorney --
15 Q You are stating under oath that you --
16 THE COURT: Ma'am, everything she is saying
17 .... here today is-under oath. Do not ask that again..-= .
18 BY MS. GERBER:
19 Q Are you saying that you instructed in
20 November Marilyn Gerber how to write and sign POA checks? ~--
21 A What I am stating is that when I put
22 somebody on as power of attorney onto an account, when I
23 have clients, any client sitting in front of me and we're
24 doing a power of attorney, we sign new signature cards when
25 I say you sign your name with POA afterwards. Now, I
65
1 do tons of --
2 Q Do you recall specifically saying that in
3 that scenario?
4 A No, not specifically, but that's generally
5 how it goes.
6 Q So generally, but you don't remember if you
7 actually did instruct Miss Gerber then that day?
8 A Mrs. Gerber?
9 Q Marilyn, you don't remember instructing
10 Marilyn how to sign POA checks, do you?
11 A I don't recall that day.
12 Q Thank you. I will impeach the witness on
13 that. When you received the revocation document, did Miss
14 Gerber call you and inform you that other institutions were
15 honoring and that that was indeed a legal document?
16 THE COURT: That does not make any
iT difference to-me, ma'am. It makes no difference. We are
18 all out on nonrelevant material. A lot of what you put in
19 is not relevant.
20 MS. GERBER: Thank you. Good. Well, then
21 we can speed this along.
22 THE COURT: Go ahead.
23 BY MS. GERBER:
24 Q From the testimony, you seem to be very
25 quickly to make comments that Marilyn Gerber was forceful
66
1 and pushy and demanding of her mother. Is it possible,
2 Miss Conway, that being the fact that Mrs. Gerber did not
3 have a history of managing her account, that her caregiver
4 assisted her with the management of her monies, inquiring
5 about her balance, mom, you need to sign here, mom, we need
6 to have this, kept the balance of her --
7 THE COURT: Ma'am, if you want to testify
8 later, you can do so.
9 BY MS. GERBER:
10 Q Is it possible --
11 THE COURT: Ma'am, I am not going to let you
12 ask that. Next question.
13 BY MS. GERBER:
14 Q In the episode when Marilyn brought in
15 Millie with the check, you then informed Millie that there
16 was no money in the account. Miss Gerber was surprised you
.17 stated in earlier testimony~ Did Miss Gerber inform you
18 that this presented a problem because there were numerous
19 checks that Millie had just written and the checks would
20 bounce? --
21 A Yes, I stated that.
22 Q What was your suggestion to do at that time?
23 A At that time you called your brother.
24 Marilyn called her brother and spoke with him, and then
25 when the phone -- when it became my turn to use the phone,
67
1 I talked with him and we transferred money from the new
2 account to the old account to cover those checks.
3 Q And you informed Marilyn -- in fact, Marilyn
4 handed you her cell phone, didn't she, to talk to Fred
5 Gerber?
6 A Yes.
7 Q And did you inform Marilyn then that the
8 account had been closed?
9 A I informed you that the money market was
10 closed.
11 Q Not the other single checking account?
12 A It's not closed. It's --
13 Q Are you stating now for this Court that
14 there is a joint checking account under Fred Gerber and
15 Mildred Gerber, there is a separate checking account for
16 Mildred Gerber and the money market is closed? Is that
17 what you are testifying to today? - ~
18 A I am testifying that the old checking
19 account is in the process of being closed.
20 Q So it was not closed at that point then, --
21 there was just inadequate funds, is that correct?
22 A Correct.
23 Q So Miss Gerber -- okay. Then I'm going to
24 impeach this witness again on this issue. All right. When
25 you received the revocation document, did Miss Gerber call
68
1 you and inform you that there was problems with Fred Gerber
2 and his vacating her accounts? Did Marilyn share her
3 concern in what was happening in the vacating of Mildred
4 Gerber's accounts?
5 A Yes.
6 Q From the period of December 29th to January
7 12th?
8 A Yes.
9 Q Did you make a comment to Marilyn that very
10 few people took care of their mothers and it was unusual
11 for Marilyn to show such concern and care for her mother?
12 A I don't recall.
13 Q I will impeach this witness on that. Do you
14 see --
15 THE COURT: I will tell you what. Don't
16 talk to me about impeachment anymore. Just ask questions.
17 If you impeach, you impeach. If you don't, you don't.
18 MS. GERBER: Well, I don't want to say she's
19 lying because it would be rude.
20 THE WITNESS: I don't recall.
21 THE COURT: Ma'am, all I am saying is do not
22 make side comments. Ask questions. Next question.
23 BY MS. GERBER:
24 Q Do you know NBNA?
25 A Yes, it's a credit card company.
69
1 Q Are you aware they are one of the largest
2 credit card services in the United States?
3 A Um-hum.
4 Q Are you aware that they received a fax
5 document that legal counsel and it's proved --
6 THE COURT: Get off that. You are telling
7 me something I need absolutely not know at this point?
8 MS. GERBER: At this point I will reserve
9 the right to go back, but at this time I don't think you
10 want me to talk anymore. So, Your Honor, I will step back
11 on this. I can't refute this anymore.
12 THE COURT: Anything further?
13 MR. RUPP: No, Your Honor.
14 THE COURT: You may step down, ma'am. You
15 are excused.
16 THE WITNESS: Thank you.
17 ~ MR. RUPP: Your Honor, I call Colonel Fred-
18 Gerber.
19 THE COURT: Is there anybody else from the
20 bank or any outside parties here?
21 MR. RUPP: No.
22 MS. GERBER: I have a witness.
23 THE COURT: Who do you have, ma'am?
24 MS. GERBER: I have Michael Kane.
25 THE COURT: Who is it?
70
1 MS. GERBER: Esquire. He is a witness.
2 THE COURT: For what? Make an offer.
3 MS. GERBER: Make an offer?
4 THE COURT: I might take it out of order.
5 MS. GERBER: An offer of proof?
6 THE COURT: Yes.
7 MS. GERBER: He is here to testify on the
8 capacity of my mother and signing of documents in October
9 and November.
10 MS. VERNEY: Your Honor, I object as
11 irrelevant.
12 THE COURT: How is it relevant?
13 MS. GERBER: Because he's going to testify
14 she wasn't incapacitated and was in full capacity to
15 understand her co-plaintiff's actions that was submitted to
16 this Court in November 2000, and that multiple times was
17 spent with other attorneys who I subpoenaed who are not ......
18 here to testify to --
19 THE COURT: What was the purpose of you
20 putting in all of this information on all of these -
21 accounts, back at that time she was incapacitated?
22 MR. RUPP: No, Your Honor, that she is
23 subject to the pressures of Marilyn. The point -- not
24 that -- we're really saying that Mildred, and based on what
25 Dr. Sabo has said, is subject to pressures and she will
71
1 simply concede and yield to those to simply get any
2 problems out of the way. That is the point.
3 THE COURT: I am going to take Mr. Kane out
4 of order and let him testify. Come on up.
5 MS. GERBER: I'm asking Mr. Michael Kane,
6 Esquire, to be a witness.
7 Whereupon,
8 MICHAEL KANE,
9 having been duly sworn, testified as follows:
10 MR. KANE: Your Honor, as an officer of the
11 court, can I just say something?
12 THE COURT: Go ahead.
13 MR. KANE: I represent Miss Gerber in
14 another matter involving the trust, and she's pro se in
15 this matter here. I want to make the Court aware of that
16 because I don't want to be disclosing client confidences.
17 THE COURT: f~cay. ---
18 DIRECT EXAMINATION
19 BY MS. GERBER:
20 Q Mr. Kane, do you represent --
21 THE COURT: Let's get him identified and who
22 he is. Who are you, sir?
23 THE WITNESS: My name is Michael Kane.
24 THE COURT: What do you do?
25 THE WITNESS: I'm an attorney.
72
1 THE COURT: Where?
2 THE WITNESS: In Camp Hill.
3 THE COURT: Go ahead.
4 BY MS. GERBER:
5 Q Mr. Kane, how long have you represented
6 Marilyn Gerber?
7 A I think the first time we met was in March
8 of 2000.
9 Q Do you represent her on her trust and
10 beneficiary rights against -- I don't know if you use the
11 term, but the other opposing person is Colonel Gerber and
12 Lindsay Baird, Esquire?
13 A I represent you with respect to the trust of
14 Fred Gerber, your father, and you as a beneficiary in that
15 trust.
16 Q So the person that you deal with is Lindsay
17 Baird, Esquire, and Colonel Freddie Gerber, II, is that
18 correct?
19 A Colonel Gerber, II, is the trustee, and he's
20 represented by Lindsay Baird.
21 Q And since February of 2000, have you made
22 numerous requests to Miss Lindsay Baird for disbursement of
23 Miss Gerber's --
24 THE COURT: Wait a minute. You told me that
25 this was about competency.
73
1 MS. GERBER: It is, sir. It relates to PNC
2 Bank, sir.
3 THE COURT: Go ahead. Get to the point or I
4 am going to cut you off.
5 MS. GERBER: I know. Thank you.
6 BY MS. GERBER:
7 Q Have you made numerous requests on behalf of
8 Miss Gerber for monies from her trust?
9 A On several occasions, I have written to Miss
10 Baird asking for disbursements from that trust.
11 Q What has been the result?
12 A I haven't gotten any disbursements.
13 Q On June 1, did Miss Gerber become fully
14 disabled from an MVA? That's a motor vehicle accident.
15 MS. VERNEY: Objection, Your Honor.
16 THE COURT: Sustained.
17 -' BY MS. GERBER:
18 Q On November 1st, 2000, did you meet with my
19 mother, Joe Metz, Mildred Gerber's counsel at 623 Hilltop
20 Drive? ~
21 MS. VERNEY: Your Honor, I'm going to
22 object. It's attorney/client privilege.
23 MS. GERBER: It's not attorney/client
24 privilege.
25 MS. VERNEY: I don't believe Mrs. Gerber is
74
1 waiving that privilege.
2 THE WITNESS: There were others present, so
3 I don't think that's privilege, Your Honor.
4 MS. VERNEY: I believe Mr. Metz was her
5 attorney at the time and she's not --
6 THE COURT: You were representing her at the
7 time?
8 THE WITNESS: Your Honor, I represented
9 Marilyn Gerber but also present at that meeting was Joseph
10 Metz and Mildred Gerber.
11 THE COURT: You may testify. Go ahead.
12 BY MS. GERBER:
13 Q So were you present in the dining room at
14 623 Hilltop Drive, New Cumberland, on November 1st, 2000?
15 A Actually it was November the 3rd, according
16 to my log.
17 Q Yes, you are right, on November 3rd. Prior
18 to that -- in that meeting, could you tell me who was
19 present in that meeting?
20 A It was yourself, obviously myself, Attorney
21 Joseph Metz and your mother, Mildred.
22 Q And before the meeting started for the
23 questions I'm about to ask you, did Joseph Metz in front of
24 you, Marilyn Gerber, and Mrs. Gerber tell us all that the
25 restraining order had been vacated by Judge --
75
1 A I think it was His Honor.
2 Q Your Honorable Judge Bayley.
3 A Yeah, I was aware that there had been a
4 restraining order and it had been vacated.
5 THE COURT: Who did Mr. Metz represent?
6 THE WITNESS: He was representing Mildred.
7 BY MS. GERBER:
8 Q Were there discussions about the phone call
9 from Judge Bayley to Mr. Metz about this vacating of the
10 restraining order?
11 A I recall -- I don't recall the specifics of
12 it, but I remember Joe telling me that --
13 Q There was discussion that Your Honorable
14 Judge Bayley was a professor at Dickinson College to Joe
15 Metz?
16 A No, I don't recall that.
17 THE COURT: Let's get the facts.
18 BY MS. GERBER:
19 Q At the time did -- could you describe the
20 discussions, the conversations, social discussions you had
21 with my mother, Mildred Gerber, about Notre Dame, St.
22 Joe's, et cetera, et cetera?
23 MR. RUPP: Objection, Your Honor. I don't
24 know where this line of questioning is going.
25 THE COURT: Well, she is working around to
76
1 competency. I believe that is the offer.
2 MS. GERBER: That's right. You're right.
3 THE COURT: Did you have those kind of
4 discussions with her?
5 THE WITNESS: I did and it was in the
6 context of a petition or a complaint that was being filed
7 on your behalf and on her behalf.
8 BY MS. GERBER:
9 Q When you mentioned you had gone to Notre
10 Dame, did my mother discuss with you clearly about the
11 dormitories at St. Mary's and Notre Dame and her years
12 there?
13 A Yeah, we did have an extensive discussion
14 about the fact that she had gone to St. Mary's College and
15 I had attended Notre Dame for awhile.
16 Q And what was the purpose of the gathering
17 with Mr. Metz, Mildred, Marilyn Gerber and yourself?
18 A Well, I had filed or prepared a complaint on
19 your behalf and in consultation with Joe Metz who
20 represented your mother on her behalf, a complaint for an ~--
21 accounting of your father's trust.
22 So it was an action entitled Mildred Gerber
23 and Marilyn Gerber versus Fred Gerber, Trustee, and the
24 purpose in getting together was to go through the complaint
25 with both you and for Joe to go through it with your mother
77
1 so that it -- for purposes of having it verified.
2 Q And at that time --
3 A Not only verified but also for Mr. Metz to
4 explain and to be sure that your mother understood what the
5 complaint was about.
6 Q Did you have knowledge that Mr. Metz had
7 several meetings with Mildred Gerber to discuss the issue
8 of the co-plaintiff action?
9 A I was aware that over the course of about a
10 month that Mr. Metz had met with your mother about the
11 complaint that I was preparing on your behalf and whether
12 she wished to join as a plaintiff also.
13 Q Had you ever made any attempts to discuss
14 anything with my mother?
15 A No, not at all.
16 Q Thank you. During that session with
17 Marilyn
18 THE COURT: Is that the first time you met
19 her?
20 THE WITNESS: Yes, it was, Your Honor.
21 BY MS. GERBER:
22 Q That's the first and only time?
23 A I believe that's right.
24 Q And during that time in the discussion, did
25 you find Mrs. Gerber capacitated, mentally alert,
78
1 functioning, aware of what she was doing?
2 A Very much so.
3 Q Thank you. At that time do you remember
4 Mrs. Gerber saying I realize I favored my son too long,
5 during that session in regard to the issues of wanting to
6 know where her money was?
7 A I can -- maybe it would be better if I could
8 tell you what I recall of that meeting, if that would be
9 okay, Your Honor.
10 THE COURT: That is beyond the scope of the
11 offer. This is on competency. He found her very aware of
12 what she was doing.
13 MS. GERBER: Your Honor, the point that I
14 would like to make is that Mrs. Gerber is entitled to not
15 only her personal funds, but she's also a beneficiary of a
16 trust with this co-plaintiff action.
17 BY MS. GERBER:
18 Q Could you tell me, Mr. Kane, how long has it
19 been that any fiduciary accounting has been supplied to
20 Mrs. Gerber or Marilyn Gerber from this trust?
21 THE COURT: That is not relevant. I am not
22 dealing with the trust today.
23 MS. GERBER: Yes, it is, sir, because it's
24 part of her total guardianship.
25 THE COURT: No. Next question.
79
1 MS. GERBER: I'm not trying to plead this --
2 THE COURT: Next question.
3 MS. GERBER: I'm not trying to plead this
4 co-plaintiff action.
5 BY MS. GERBER:
6 Q Have you -- since Miss Gerber's accident,
7 are you aware of Miss Gerber's total disability?
8 A Well, I'm not a medical doctor so I can't --
9 Q Did Miss Gerber submit to you a medical
10 document that has been submitted to this Court in my motion
11 for a continuance stating her total disability?
12 A I received correspondence from your doctor
13 saying that you were --
14 Q Can you testify that Miss Gerber has been
15 disabled now for nine months without any income?
16 MS. VERNEY: Objection, Your Honor,
17 relevancy.
18 THE COURT: Sustained.
19 BY MS. GERBER:
20 Q Since Miss Gerber's automobile accident,
21 have you made any petitions to Lindsay Baird for
22 distribution --
23 THE COURT: Simply remember what I am doing
24 today. I am not doing that case. I am doing this one.
25 MS. GERBER: Got it.
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1 THE COURT: Any other questions on
2 competency?
3 BY MS. GERBER:
4 Q Could you elaborate so I --
5 THE COURT: You asked a question. He
6 answered it as to how he found her. Anything else?
7 BY MS. GERBER:
8 Q Mr. Kane, do you have any question as to
9 Mrs. Mildred Gerber's capacity to understand legal
10 documents and what she signs?
11 A Well, with respect to that particular day,
12 it was clear to me that she knew exactly what she was
13 doing.
14 Q Did Miss Gerber -- did you find Miss Marilyn
15 Gerber to be forceful, intimidating, demonstrative,
16 holding -- you know, wrenching Mrs. Mildred Gerber's arms
17 behind her back to make her sign these documents?
18 A No. In fact, on a couple of occasions she
19 told you to shut up.
20 Q So that she wanted to discuss this herself?
21 A She was definitely in control of what she
22 was doing.
23 Q So in terms of the capacity --
24 THE COURT: Wait. Ma'am, any other
25 questions?
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1 MS. GERBER: Hold on. I've got to think
2 here.
3 THE COURT: You made your point here.
4 MS. GERBER: I've made my point to you?
5 THE COURT: Yes.
6 MS. GERBER: Okay.
7 THE COURT: Have a seat.
8 MS. GERBER: Thanks.
9 THE COURT: Any cross examination?
10 MR. RUPP: Yes, Your Honor.
11 CROSS EXAMINATION
12 BY MR. RUPP:
13 Q Mr. Kane, hello. Are you a licensed medical
14 doctor?
15 A No, not at all.
16 Q Are you a licensed clinical psychologist?
17 A Not at all.
18 THE COURT: No. He is a lawyer. Come on.
19 BY MR. RUPP:
20 Q You didn't evaluate Mrs. Gerber from a
21 -clinical psychologist's point of view, did you?
22 A Only from having been a lawyer for 20 years
23 and a prosecutor for most of that and dealing with a lot of
24 people, I felt she knew what she was doing.
25 MR. RUPP: No further questions, Your Honor.
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1 CROSS EXAMINATION
2 BY MS. VERNEY:
3 Q Sir, did you ask her what day it was?
4 A I believe Mr. Metz did. Mr. Metz went
5 through a whole litany with her about that to be sure that
6 she was aware of everything that was going on.
7 Q What other questions were asked? What other
8 questions did Mr. Metz ask her as to capacity?
9 MS. GERBER: That's leading, Your Honor.
10 THE COURT: Overruled.
11 THE WITNESS: Mr. Metz went through the
12 complaint averment by averment, asked her not only if she
13 understood that but asked her if she could tell him what
14 that meant to her, and she was able to state, I thought
15 clearly, what each of those averments meant.
16 He also asked her if she understood that she
17 was making, in essence, accusations against Colonel Gerber,
18 her son, and she said that she was aware of that. I mean,
19 all of her answers --
20 BY MS. VERNEY:
21 Q Did Mr. Metz ask her her address, her birth
22 date, what year it was, not only what day of the week?
23 A You know, I don't have a specific
24 recollection, but the best I can answer is that I seem to
25 recall that there was those types of questions and that she
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1 was fully oriented to the date and the time and place.
2 MS. VERNEY: That's all I have, Judge.
3 THE COURT: Any redirect?
4 REDIRECT EXAMINATION
5 BY MS. GERBER:
6 Q Mr. Kane, has it been appropriate and
7 professional for Mr. Metz and you to work together on this
8 co-plaintiff action to prepare for this upcoming hearing?
9 I'm saying, have you been dialoguing without her but Mr.
10 Metz by letting --
11 THE COURT: That does not have anything to
12 do with the direct. Any questions with respect to the
13 cross examination?
14 MS. GERBER: Am I allowed to ask him his
15 opinion of something?
16 THE COURT: You can only ask questions as it
17 is related to the cross examination.
18 BY MS. GERBER:
19 Q Are you aware that Mr. Metz drew up a
20 revocation of power of attorney and trusteeship for Mrs.
21 Gerber to --
22 THE COURT: You are beyond the scope of your
23 offer.
24 MS. GERBER: That's on --
25 THE COURT: You are beyond the scope of your
84
1 offer, ma'am. Anything else?
2 MS. GERBER: Okay. Hold on here. They
3 submitted this exhibit.
4 THE COURT: No.
5 MS. GERBER: I can't ask about this exhibit?
6 THE COURT: No. You called him for a
7 purpose, and you made your point. Anything else?
8 BY MS. GERBER:
9 Q Since this revocation document was signed --
10 THE COURT: I am not going to allow you to
11 ask anything regarding that.
12 MS. GERBER: Not the documents --
13 THE COURT: Ma'am, he is called for one
14 purpose and one purpose only, and he has given me an
15 opinion as to what her competency was to deal with the
16 issues that were dealt with on November 30th.
17 MS. GERBER: Okay. Here's a better
18 question.
19 BY MS. GERBER:
20 Q Do you think Miss Gerber is capable of
21 managing -- Mrs. Marilyn Gerber is --
22 THE COURT: That you cannot ask.
23 MS. GERBER: I can't ask that?
24 THE COURT: No. He only met her once.
25 MS. GERBER: Can I ask that --
85
1 THE COURT: Have a seat, ma'am. You are
2 through.
3 MS. GERBER: Thank you. We're done.
4 THE COURT: Sir, you are excused.
5 THE WITNESS: Thank you.
6 THE COURT: I will have to continue this
7 case. I cannot complete it today. I will have to get my
8 book to reschedule it. Hold on.
9 MS. GERBER: Your Honor.
10 THE COURT: What?
11 MS. GERBER: I would like to ask two things,
12 please.
13 THE COURT: Yes.
14 MS. GERBER: Number one, we kind of jumped
15 into this, and I apologize, I'm not an attorney, and I am
16 looking hard to get an attorney to substitute in. It would
17 be a lot more --
18 THE COURT: I am going to give you plenty of
19 time.
20 MS. GERBER: I have two requests, Your
21 Honor. Richard Rupp and Herbert Rupp I am going to file
22 motions to recuse them because they've been intimately
23 representing my mother, my brother, the two trusts and --
24 THE COURT: If you have any motions to file,
25 you can do it in the interim period.
86
1 MS. GERBER: The second issue, I would like
2 to make a request, Your Honor. My mother has been held
3 hostage for 38 days. She has not seen any --
4 THE COURT: I have no guardian of the person
5 outstanding, and I am not going to appoint a quardian of
6 the person now.
7 MS. GERBER: She hasn't seen any of her
8 physicians, Your Honor, for 38 days. She hasn't taken her
9 meds.
10 THE COURT: I have not appointed a quardian
11 of the person. There is no petition before me as guardian
12 of the person. He is guardian of the estate.
13 MS. GERBER: So I'm allowed to access my
14 mother then?
15 THE COURT: Ma'am, I do not give legal
16 advice. Have a seat.
17 MS. GERBER: Your Honor, may I make --
18 THE COURT: First of all, I am going to get
19 a date here to reconvene. Then I suggest if you have a
20 million questions you get an attorney.
21 MS. GERBER: I'm in the process, sir.
22 That's why I asked for a continuance.
23 THE COURT: We will reconvene at 1:45 p.m.,
24 Thursday, March 22, 2001.
25 MS. GERBER: Your Honor --
87
1 THE COURT: In the interim, the temporary
2 guardianship previously entered is continued. Now, any
3 motions that you have, ma'am?
4 MS. GERBER: Yes. In lieu of that extension
5 of this guardianship, Your Honor, I would like to ask that
6 my mother be allowed to meet with her doctors, take her
7 meds, that I have access to --
8 THE COURT: Ma'am, you have an issue that is
9 not before me today. I am dealing on a quardianship of the
10 estate. If you had concerns about the proper care of your
11 mother, you should have filed a petition either for a
12 guardian of her person or brought an appropriate petition
13 that I could have acted upon. I am not in a position today
14 to --
15 MS. GERBER: Your Honor, I am totally
16 disabled at this point. I'm not in a position to even
17 begin to have any arrogance to think that I could do all
18 this from February 9th on. But my mother has been
19 restrained from me not legally, but I am under a threat of
20 arrest if I go and access all of my personal property. I'm
21 kept from the family home.
22 THE COURT: I suggest you seek the advice of
23 counsel.
24 MS. GERBER: In the meantime, Your Honor, my
25 mother is at risk.
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1 THE COURT: Court is adjourned.
2 MS. VERNEY: Your Honor, may I ask the
3 Court, does Mrs. Gerber need to appear at the next hearing?
4 THE COURT: Yes.
5 (Whereupon, the hearing was concluded
6 at 4:46 p.m.)
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