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INDEX TO WITNESSES
FOR THE PETITIONER DIRECT CROSS REDIRECT RECROSS
1. Frederick Edward Gerber, II By Mr. Rupp 5 ......
By Ms. Gerber -- 45 ....
By Ms. Verney -- 108 ....
2. David A. Brown By Mr. Rupp 29 ......
By Ms. Gerber -- 31 ....
By Ms. Verney -- 39 ....
FOR MARILYN GERBER
1. Mary Whipple By Ms. Gerber 117 ......
By Ms. Verney -- 122 ....
2. Jane Heflin By Ms. Gerber 132 ......
By Mr. Rupp -- 143 ....
3. Marilyn Jo Gerber
By the Court 146 -- 190 --
By Mr. Rupp -- 169 ....
By Ms. Verney -- 176 ....
2
INDEX TO EXHIBITS
FOR PETITIONER IDENTIFIED ADMITTED
9. 2000 PNC Bank sponsored MBNA 22 113
credit card expenditure summary
11. Excel spreadsheet 2000 25 113
12. Consent to serve as co-guardian 30 113
from PNC
13. Durable power of attorney 41 113
14. Dr. Sabo's curriculum vitae 111 113
15. Service by sheriff on Marilyn Gerber 112 113
16. Sheriff's return for Jane Heflin 112 113
17. Sheriff's return for Mildred Gerber 112 113
FOR MARILYN GERBER
4. Check written to Marilyn for 200 200
$150.00
5. Evaluation of Mildred Gerber by 201 201
Dr. Reynolds
6. Three wire transfers 201 202
7. Pennsylvania Water Company 202 203
notification to shut off service
8. Mildred's last will and testament 204 204
9. Revised and restated revocable 205 205
trust
10. Free Flow bill 205 206
1 March 22, 2001, 9:30 a.m.
2 Carlisle, Pennsylvania
3 (Whereupon, the following proceedings
4 were held:)
5 THE COURT: You were going to call your
6 client?
7 MR. RUPP: Yes, Your Honor.
8 THE COURT: The way I am going to do this is
9 at this stage I am going to limit at the moment the
10 testimony to the sole issue of whether or not Mildred
11 Gerber is incapacitated. We will take all of the evidence
12 you have on that, and we will take all of the evidence that
13 anyone else has on that. If I determine that she is
14 incapacitated, we will get into the issue of who should be
15 appointed the guardian of the estate. So we are going to
16 limit the first section solely to the issue of
17 incapacitation. -
18 MS. GERBER: Your Honor, my witnesses have
19 agreed to -- I subpoenaed them and they agreed to be
20 available telephonically because they are physicians and
21 therapists and they have a busy practice. So they are
22 prepared to be interrupted from their patients in their
23 office to go on the line and to testify into the capacity
24 of my mother.
25 THE COURT: We will take his testimony
4
1 first. You may proceed.
2 MR. RUPP: Your Honor, I had some
3 administrative business. Number one, we have seen that Ms.
4 Gerber has filed a motion of some kind. We have not had a
5 chance to address it in writing. We would simply ask that
6 it be dismissed as irrelevant or pertaining to issues not
7 at issue in this case.
8 THE COURT: I am prepared to proceed right
9 now. Whatever motions have come in, I have taken a look at
10 and I am moving forward.
11 MR. RUPP: Your Honor, then I would call
12 Colonel Fred Gerber.
13 Whereupon,
14 FREDERICK EDWARD GERBER, II,
15 having been duly sworn, testified as follows:
16 DIRECT EXAMINATION
17 BY MR. RUPP:
18 Q Colonel Gerber, could you state your full
19 name for the Court, please.
20 A Frederick Edward Gerber, II.
21 Q And what is your education, please?
22 A I have a Bachelor of Science Degree in
23 biology. I have got a Master's in military arts and
24 science, and I have various military degrees from Combined
25 Arms and Services Staff College, Command and General Staff,
1 U.S. Army War College.
2 Q How are you employed?
3 A I'm an officer of the United States Army,
4 Army Medical Department.
5 Q And how long have you been employed by the
6 United States Army?
7 A I've been employed for approximately 27 and
8 a half years.
9 Q And are you in charge of any kind of
10 facilities underneath you?
11 A Yes, sir, I am. I currently serve as the
12 director of healthcare operations for the Army Medical
13 Department, United States Army, responsible for worldwide
14 healthcare to active, retired and beneficiary members of
15 the United States Army.
16 Q Are you the petitioner on the petition for
17 guardianship for your mother, Mildred J. Gerber?
18 A Affirmative.
19 Q Would you please tell the Court why you
20 filed this petition to be named guardian?
21 A Yes, sir. Sometime in December of the year
22 2000, I developed a grave and urgent concern over matters
23 that had come to my attention concerning the rapid and fold
24 evacuation of mom's checking, money market and almost
25 $20,000.00 in credit card bills that had come in in a three
6
month, October, November, and December, time period.
2 I was concerned about mom's precipitous
3 mental status decline over the past six months, the
4 inability to find any of the house financial physical
5 records that mom had kept very detailed over the past three
6 years since dad's death in 1998.
7 Q Prior to your concern for your mom and her
8 decline to handle her affairs, had you been appointed a
9 fiduciary for either of your parents prior to that time
10 period?
11 A Yes, sir, I had. I was appointed as trustee
12 for my dad's trust. I was appointed as the executor for my
13 mother's living trust. I was appointed as the power of
14 attorney for mom's will and as the agent power of attorney
15 for mom.
16 Q Fred, I'm going to show you what we had
17 previously marked on the F_ebruary 21st hearing Gerber
18 Exhibit No. 1. Jennifer Conway identified that. Would you
19 identify what you think that represents?
20 A Well, this is Gerber Exhibit 1, the
21 revocation by Mildred J. Gerber of all trusteeship and
22 powers of attorney. This document came to my attention on
23 or about the 28th of December of the year 2000 when Charles
24 Schwab called me very concerned that Marilyn Gerber was
25 attempting to access both trust accounts for dad and mom.
1 MS. GERBER: Objection, Your Honor.
2 THE COURT: Overruled. You may testify.
3 THE WITNESS: May I continue?
4 THE COURT: You may continue, Schwab the
5 company?
6 THE WITNESS: Schwab the company. The legal
7 representatives from Schwab called me as the legal power of
8 attorney and trustee for the accounts, asked me if I was
9 aware of this document. I stated I had not been. I spoke
10 with mom on the 28th and the 29th. Mom does not remember
11 signing this document in no form or fashion.
12 I then received calls from MBNA, mom's
13 credit card company, very shortly thereafter and got the
14 same story that Marilyn was attempting to get additional
15 monies.
16 BY MR. RUPP:
17 Q And Miss Conway testified for PNC Bank that
18 that revocation was also delivered to her. Is that your
19 testimony?
20 A That is correct, sir. I spoke with Miss
21 Conway from PNC Bank in New Cumberland who also
22 indicated --
23 MS. GERBER: Objection, that's hearsay, Your
24 Honor.
25 THE COURT: Overruled. I will admit it for
8
what it is worth.
2 THE WITNESS: I spoke with Miss Conway from
3 PNC Bank who indicated Marilyn was trying to revoke my
4 power of attorney, take control of the checking accounts at
5 New Cumberland.
6 I then drove up and met with mom on the
7 28th. I met with Jennifer Conway at the bank on the 29th
8 and took steps at mom's direction to protect her assets.
9 BY MR. RUPP:
10 Q So it was these revocations that you learned
11 about that really sparked you becoming and knowing about
12 what was going on in your mom's affairs?
13 A Yes, sir. That was the growing -- not the
14 final cap, the final cap happened on the 12th of January,
15 but it was the growing grave and urgent concern that mom
16 had taken -- had lost all of her assets in checking, money
17 market and credit cards.
18 Q Colonel Gerber, would you please identify
19 these exhibits. I'm just going to go over these with you.
20 The first one is Gerber Exhibit No. 2. Jennifer Conway ~
21 testified to that. Can you also identify what that is?
22 A Sir, this is the PNC monthly checking
23 account statement for Mildred J. Gerber.
24 MS. GERBER: Objection, Your Honor. You
25 asked about these. They were presented last month.
9
1 MR. RUPP: I haven't asked Colonel Gerber
2 about them.
3 THE COURT: Overruled. You may identify
4 them.
5 BY MR. RUPP:
6 Q And you obtained those from where?
7 A I obtained these from PNC Bank at my
8 request. Beginning in May of the year 2000, I had
9 requested that duplicate copies of mom's checking
10 statements come to my home so that I could monitor mom's
11 checking accounts.
12 Regrettably I didn't start getting these
13 until around October, November because previous to that
14 time I had checked every month that mom had filed these
15 accounts in her household accounting box that we had
16 jointly established and mom had maintained very, very well
17 until about October.
18 Q What had interrupted you around October that
19 prevented you from assisting your mother with respect to
20 her banking and financial affairs?
21 A Well, my routine monthly visits with mom to
22 check on her financial status were interrupted by Marilyn
23 Gerber's return from California and near -- I mean, she
24 essentially moved in with mom towards August, September,
25 October.
10
I was -- any visit -- any visit to mom's
2 house became almost impossible. Altercations, yelling,
3 screaming put mom into a state of shock. Any phone calls
4 with mom became nearly impossible. It was virtually
5 impossible to speak with mom alone in private without
6 Marilyn picking up the phone, interrupting, yelling at mom.
7 Q Were you able to see the bank records from
8 the October, November, December period?
9 A No, sir. As I indicated, mom's very
10 excellent detailed accounting or filing of her monthly
11 statements to include the checking, the cancelled checks,
12 had disappeared. I mean, I can't find a single one.
13 Q Can you tell the Court what Gerber Exhibit
14 No. 3 is?
15 A I'm looking at Gerber Exhibit No. 3. This
16 is check number 7428, dated 27 December 1999, written to
17 Marilyn Gerber for the amount of $2,000.00.
18 MS. GERBER: I'm sorry. I didn't hear what
19 he said. Would you repeat that?
20 MR. RUPP: Colonel, could you repeat that.
21 THE WITNESS: I'm looking at Gerber Exhibit
22 No. 3. This is a check dated number -- this is check
23 number 7429 -- I'm sorry, 28, dated 27 December 1999,
24 written to the order of Marilyn Gerber in the amount of
25 $2,000.00.
11
1 BY MR. RUPP:
2 Q Can you identify Exhibit No. 4?
3 A I see a second check there. I believe it
4 says check number 6831, dated 11 January the year 2000,
5 written to Charles Mackin for the amount of $5,300.00.
6 Q Who was Charles Mackin, if you know?
7 A Charles Mackin was the attorney for Marilyn
8 Gerber in the criminal trespass/harassment case.
9 Q Can you identify Exhibit No. 4?
10 A I'm looking at Gerber Exhibit No. 4. This
11 is check number 9421, dated 18 April 2000, and this is a
12 check in the amount of $200.00 written to the Clerk of
13 Courts.
14 THE COURT: I'm sorry, written to whom?
15 THE WITNESS: Written to the Clerk of Courts
16 here in Carlisle.
17 BY MR. RUPP:
18 Q Do you know what that might have been for?
19 A Yes, sir. This was the aftermath
20 requirements to pay for Marilyn's having to appear in the -
21 criminal trespass against her.
22 Q Were those the court costs?
23 A Yes, sir, they were.
24 Q Would you identify Exhibit No. 5.
25 A I'm looking at Gerber Exhibit No. 5, check
12
number 8936, dated 8 September of the year 2000, written to
2 Marilyn Gerber in the amount of $3,000.00.
3 I'm looking at check number 8938, dated 12
4 September of the year 2000, written to Marilyn Jo Gerber in
5 the amount of $75.00.
6 I'm now looking at check number 9463, dated
7 8 September in the year 2000, written to Lord and Taylor in
8 the amount of $101.43.
9 I'm now looking at check number 8944, dated
10 23 September of the year 2000, written to Marilyn Gerber in
11 the amount of $2,200.00.
12 I'm looking at check number 9466, dated 15
13 September of the year 2000, written to Huvac, H-u-v-a-c, in
14 the amount of $203.50.
15 I'm looking at check number 9468, dated 28
16 September in the year 2000, written to Marilyn Jo Gerber in
17 the amount of $1,000.00 .......
18 Q Fred, can you identify Exhibit No. 6?
19 A Yes, sir. I'm now looking at Gerber Exhibit
20 No. 6, check number 8978, dated 4 October of the year 2000,
21 written to Joe Metz in the amount of $500.00.
22 I'm looking at check number 8979, dated 6
23 October of the year 2000, a check made out to Marilyn Jo
24 Gerber in the amount of $3,000.00.
25 I'm now looking at check number 8963, dated
13
18 October of the year 2000, written to Mr. Metz for the
2 amount of $1,000.00.
3 I'm looking at check number 8988, a check
4 made out to Marilyn Jo Gerber in the amount of $4,000.00.
5 THE COURT: Date.
6 THE WITNESS: And the date was 26 October in
7 the year 2000.
8 Finally, I'm looking at check number 8991,
9 dated 30 October of the year 2000, made out to a Farr,
10 F-a-r-r, in the amount of $425.00.
11 BY MR. RUPP:
12 Q And would you identify Exhibit No. 7?
13 A Yes, sir.
14 MS. GERBER: Your Honor, I don't know how to
15 say it point of reference. You asked that Mrs. Gerber's
16 incapacitation mentally be proved. This is all financial,
17 and you said you would proceed. I also
18 THE COURT: I said what we are dealing with
19 is whether she is incapacitated, and whether she is able to
20 properly care and protect her estate goes to the issue of
21 incapacity.
22 MS. GERBER: Okay. Your Honor, there's no
23 explanation as to where these checks went to, why they were
24 given and her ability.
25 THE COURT: Let the man put his case in, and
14
you can argue it afterwards.
2 MS. GERBER: Okay.
3 THE WITNESS: I am now looking at Gerber
4 Exhibit No. 7, check number 8954, dated 19 November of the
5 year 2000, a check written to Marilyn Gerber in the amount
6 of $1,000.00.
7 I'm looking at check number 9277, dated 29
8 November of the year 2000, made out to cash in the amount
9 of $1,000.00.
10 Finally, I'm looking at check number 8957,
11 dated 20 November of the year 2000, made out to Bank Card
12 Services in the amount of $3,000.00.
13 BY MR. RUPP:
14 Q Fred, can you identify Exhibit No. 8 for us,
15 please?
16 A Yes, sir. I'm looking at now Gerber Exhibit
17 No.~ 8, check number 8946, dated 20 December of the year
18 2000, a check made out to Marilyn Gerber in the amount of
19 $1,500.00.
20 I'm looking at check number 9475, dated 16
21 December of the year 2000, a check made out to Marilyn
22 Gerber in the amount of $600.00.
23 I'm looking at check number 9470, dated 8
24 December 2000, a check made out to Marilyn Gerber in the
25 amount of $3,000.00.
15
Now, going to check number 9472, dated 12
2 December of the year 2000, a check made out to cash in the
3 amount of $200.00.
4 Check number 8953, dated 19 November of the
5 year 2000, made out to Bob Gruver in the amount of
6 $1,192.00.
7 THE COURT: What is the last name?
8 THE WITNESS: G-r-u-v-e-r. I'm looking at
9 check number 8999, dated 4 November of the year 2000, a
10 check made out to Comcast for the amount of $27.51.
11 Lastly, I'm looking at check number 8947,
12 dated 21 December of the year 2000, a check made out to
13 Auto Sunroof in the amount of $63.60.
14 BY MR. RUPP:
15 Q And those are all from your mom's, Mrs.
16 Gerber's, PNC checking account, is that correct?
17 _A That's correct. And various of these checks
18 were signed by Mildred Gerber, and some of these checks
19 were signed by Marilyn Gerber.
20 Q From looking at those checks, from your ~
21 prior experience, what conclusions did you develop from
22 seeing those checks against your mom's checking account,
23 can you tell the Court?
24 A Yes, sir. Mr. Rupp, as I said before, it
25 was putting this puzzle together you look at the vast
16
amounts of monies. I have followed mom's financial affairs
2 since February of 1998, have jointly sat down on a monthly
3 basis with mom to go over this.
4 I built an Excel spreadsheet of all of the
5 1999 expenses. I built an Excel spreadsheet of all of the
6 2000 expenses and compared the two. It generated a grave
7 and urgent concern that telephone bills, for example, went
8 from an average of $81.00 a month to almost 270 a month.
9 Credit card bills went from an average of $45.75 a month to
10 almost $323.00 a month, an eightfold increase.
11 Cash that mom would withdraw went from an
12 average of $200.00 a month to over $800.00 a month. Checks
13 written to Marilyn went from about $400.00 a month to over
14 4,000 a month, a tenfold increase. You put all this
15 together and something wasn't right.
16 Q And how would you compare the outgo that you
17 were observing once you-were able to get these bank
18 statements and checks compared to your mom's income?
19 A Well, that's a very simple question to
20 answer. I mean, mom's income -- mom makes $4,228.00 a
21 month.
22 THE COURT: What is that?
23 THE WITNESS: Sir, breaking that down, mom
24 makes approximately $2,122.00 from dad's Army pension. She
25 makes $1,053.00 from dad's civil service pension.
17
THE COURT: 1,053 civil service?
2 THE WITNESS: Roger. Mom makes $653.00 from
3 social security income, and she has $400.00 from a rental
4 property income in Baltimore.
5 THE COURT: And that comes up to 4,228?
6 THE WITNESS: Yes, sir.
7 THE COURT: Okay.
8 THE WITNESS: So I compared her $4,228.00
9 income -- I mean, over the past three years mom has spent
10 an average of about $1,200.00 a month on living expenses,
11 food, utilities, everything, you know. When I looked at
12 the record in August, mom had almost $23,000.00 in her
13 checking account. By the end of December, she was
14 overdrawn checking, money market, $20,000.00 in credit card
15 bills.
16 BY MR. RUPP:
17 Q From your prior experience, Fred, would
18 being overdrawn at her bank account have bothered her?
19 A Mr. Rupp, mom or dad has never been
20 overdrawn on their checking account.
21 Q The amounts of income you recited are
22 recited in your petition for guardianship, Fred, at
23 paragraph 6. I see on that those are -- would you consider
24 those outside sources of income from her trust?
25 A Affirmative.
18
1 Q So she has a trust in her own name, is that
2 right?
3 A That's correct.
4 Q And you are the trustee of another trust.
5 Can you tell the Court what trust that would be?
6 A I'm the trustee of the Fred E. Gerber
7 irrevocable trust in my late father's name.
8 Q Approximately tell the Court how much money
9 is in your father's -- your late father's irrevocable
10 trust?
11 A There's approximately $300,000.00 in dad's
12 irrevocable trust.
13 Q Currently where is that invested, if you
14 know?
15 A That's invested with Charles Schwab and
16 Company.
17 Q Then your mother has her own living trust,
18 am I right on that?
19 A That's affirmative.
20 Q Can you tell the Court how much money
21 approximately is in your mother's living trust?
22 A I'm sorry, I need to correct myself. There
23 is approximately $236,000.00 in dad's irrevocable trust and
24 approximately $300,000.00 in mom's living trust.
25 Q So with respect to your father's late trust,
19
1 your mom is one of several beneficiaries, is that correct?
2 A She is one of eight beneficiaries.
3 Q Plus she also has any income that her own
4 living trust can generate?
5 A That is correct.
6 Q And that income is not listed in paragraph
7 6, correct?
8 A That's correct.
9 Q Paragraph 6 lists the outside sources of
10 income?
11 A That's what we call the outside income, yes,
12 sir.
13 Q Fred, have you had a chance to roughly tally
14 what dollars came out either for in your view Marilyn
15 directly or Marilyn's benefit from the PNC checking account
16 alone?
17 A Yes, sir. From the -- I'm missing the bank
18 statements and have tried and have still not received them,
19 the bank statements for mom's checking account for the
20 months of May, June and July. But excluding those three
21 months, I estimate an evacuation of $53,000.00 from mom's
22 checking account, $9,000.00, or every penny, from mom's
23 money market --
24 THE COURT: Excluding May, June and July.
25 So are you talking subsequent to July?
20
1 THE WITNESS: No, sir.
2 THE COURT: For what period are you talking
3 about?
4 THE WITNESS: I'm talking January, February,
5 March, April. I'm excluding May, June and July.
6 BY MR. RUPP:
7 Q You don't know what happened in May, June
8 and July yet?
9 A That's correct.
10 THE COURT: And then picking up in August?
11 THE WITNESS: In August, yes, sir.
12 THE COURT: And, again, what did you
13 discover was removed?
14 THE WITNESS: My figures show the complete
15 evacuation, that's every penny, to the tune of $53,000.00
16 from checking, $9,000.00, or every penny, from mom's money
17 market, and over close to $20,000.00 in credit card
18 charges.
19 BY MR. RUPP:
20 Q Now, out of the 53 though, there were some
21 payments against mom's credit card, correct?
22 A Yes, sir, there were.
23 Q Can you tell the Court out of the 53,000
24 that came out of both the checking and money market, if you
25 know, how much went toward the credit card of your mom?
21
A My figures show that there were checks
2 written in November for $3,000.00 out of mom's checking
3 account to pay down the credit card bill and $8,000.00 out
4 of mom's money market account of the 9,000 that were
5 evacuated paid on the credit card charges.
6 Now, there is still a $5,853.00 outstanding
7 credit card bill that we are still adjudicating with the
8 credit card company.
9 THE COURT: 5,850?
10 THE WITNESS: $5,853.00, sir.
11 THE COURT: Okay.
12 MS. GERBER: I'm sorry, what was the amount
13 of the last thing he said they are still adjudicating?
14 THE COURT: $5,853.00 remaining owed to
15 credit card companies.
16 MS. GERBER: Thank you.
17 BY MR. RUPP:
18 Q Fred, I'm going to show you something I have
19 marked number 9. Can you identify what that is?
20 A Yes, sir. I'm looking at Gerber Exhibit No.
21 9. This is the annual year 2000 PNC Bank sponsored MBNA
22 credit card yearly expenditure summary for the credit card
23 account of Mildred J. Gerber.
24 Q And does it list what purchases were made
25 against your mom's PNC credit card?
22
1 A Yes, sir, it does.
2 Q Have you had a chance to go over the
3 expenditures on this?
4 A Yes, sir, I did. I wish I had received
5 this -- I received this just last week, but I wish I had
6 received this in weeks and months previous. It would have
7 saved me all of the time of having to build my own Excel
8 spreadsheets. But this does identify every single purchase
9 that mom made or someone else made with mom's credit card.
10 Q Without reading all of these, have you
11 reached a conclusion as to what these purchases represent?
12 Before you answer that, tell the Court what month the
13 activity on your mom's account was?
14 A That's a very good question. That's what
15 developed my grave and urgent concern for what was
16 happening. If you look at the -- I mean, they provide --
17 they slice and dice these expenditures in the year 2000
18 every which way. If you look at the monthly January to
19 December spending bar chart, you see these spikes in
20 October, November and December.
21 Q Is that at the bottom of the third sheet of
22 that exhibit?
23 A That is the bottom of the third sheet of the
24 exhibit. There was one other spike in April which was a
25 $43,000.00 dental card charge that we paid -- knowingly
23
1 paid for dental services.
2 Q I hope that's 4,300.
3 A I'm sorry. Did I say -- correction, it was
4 $4,300.00. But then you look at the October, November and
5 December spikes, the October spike, for example, went over
6 the credit limit; and, you know, my analysis shows a
7 summary of expenditures as they try to tell you where you
8 spent your money for specialty gifts, healthcare, clothing,
9 mail order charges.
10 For example, in the month of October,
11 $1,700.00 in gift shop expenses, $1,600.00 in car repair
12 expenses, $2,800.00 from Circuit City charges, $1,100.00
13 for organic food stuffs, $1,200.00 for clothing.
14 You look to November, $800.00 for organic
15 food things, $900.00 for clothing, and then finally the
16 spike in December as a rough general statement it was
17 $1,200.00 for organic foods and $1,600.00 for retail gifts.
18 Q Is this the typical way your mother used her
19 credit card?
20 A Sir, I'm going to tell you for three
21 years -- watching mom's credit card and other checking
22 account expenditures for three years, mom rarely used her
23 credit card and only used it in my presence when we went
24 out to dinner together.
25 Q What would be your conclusion, Fred, then
24
1 how the credit card was being utilized?
2 A Well, first of all, in lengthy discussions
3 with mom, mom had no idea that her credit card was being
4 used like this for purchases at Victoria Secret, wine
5 shops, record shops, computer shops. She had no idea this
6 was happening.
7 Q Fred, did you develop a spreadsheet to
8 analyze what was going on?
9 A Yes, sir, I did.
10 Q I'm going to show you an item that I have
11 marked number 11. Can you tell the Court what that is?
12 A I'm looking at Gerber Exhibit No. 11. This
13 is an Excel spreadsheet for calendar year 2000 that I did
14 of mom's credit card and checking account disposition.
15 Q And there are a lot of columns. Please tell
16 the Court what the columns are on your spreadsheet.
17 A Well, similar to the PNC Bank that can do
18 this a lot better than I do, they do a fiscal analysis of
19 mom's ending checking account balance, the number of checks
20 that were written, the total number of withdrawals from
21 mom's checking accounts, total deposits, the food
22 expenditures, utility expenditures, telephone, church
23 giving expenditures, credit card payments, checks written
24 to Marilyn, and finally checks written for cash.
25 Q And what is the total of dollars expended
25
either to or on behalf of Marilyn according to your
2 spreadsheet?
3 A Well, my column here checks written to
4 Marilyn were the amounts of $33,000.00 and 426 -- I'm
5 sorry, $33,426.00.
6 Q And does this include the money market
7 expenditure?
8 A I'm looking -- that last figure I gave you
9 it does not. It does not include the $8,000.00 that was
10 withdrawn out of mom's $9,000.00 money market account. It
11 does include the $3,000.00 credit card payment that was
12 made in November of 2000 paid on the credit card.
13 Q So this is the PNC account basically?
14 A Yes, sir, this is the PNC checking account.
15 Q I see at the very bottom or almost the very
16 bottom there is a line, and you have across from it monthly
17 average '99.
18 A Roger.
19 Q Can you tell the Court what that next to the
20 last line is?
21 A Well, to form some sort of opinion on
22 whether, you know, the year 2000 I had an instinctual
23 feeling that these were larger than normal, I had to
24 compare these against the '99, and you make the comparisons
25 as I indicated. You compare '99 to 2000 and you see this
26
1 huge increase in expenditures.
2 Q So would your conclusion be that your mom
3 was expending almost, but not quite, almost all of her
4 money either to or on behalf of Marilyn out of her PNC that
5 she was receiving monthly?
6 A Yes, sir, that's the conclusion I drew.
7 Q What doctors have seen your mother that you
8 have taken your mother to?
9 A There have been three recently in the last
10 30 days. Mom has seen a physician at Carlisle Barracks,
11 Carlisle, Pennsylvania, U.S. Army Health Clinic. Mom has
12 seen Dr. Sabo in Lebanon, Pennsylvania.
13 THE COURT: Sabo?
14 THE WITNESS: Sabo, S-a-b-o.
15 BY MR. RUPP:
16 Q He is the one that testified by telephone?
17 A That's affirmative.
18 Q Any others?
19 A Yes, sir. Earlier this week mom saw Dr.
20 Cadieux.
21 Q Who is Dr. Cadieux?
22 A Dr. Cadieux is, you may remember, the
23 geriatric psychiatric specialist recommended by Dr. Sabo as
24 a renown Pennsylvania Hershey Medical Center Penn State
25 geriatric psychiatrist.
27
1 Q And would you like to be the guardian for
2 your mother?
3 A Yes, sir, I would like to and am prepared to
4 be the guardian.
5 Q Would you like any other firm or entity to
6 be guardian with you?
7 A Yes, sir. I'm interested in joining
8 co-guardianship with a bank.
9 Q What bank would that be?
10 A That would be PNC Bank.
11 THE COURT: This, again, I am going to hold
12 until we get through the first stage of this. We will get
13 back to this.
14 MR. RUPP: All right. A bank trust officer
15 is present, and they have signed a consent to be
16 co-guardian if you would like me to admit that right now.
17 ~ THE COURT: I would like to take that out of
18 order so he can get out of here. Is this the gentleman in
19 the back?
20 MR. RUPP: Yes.
21 THE COURT: Let's get him on briefly and get
22 him out of here.
23 MS. GERBER: Can I cross-examine the bank
24 officer?
25 THE COURT: He will be back here.
28
1 MS. GERBER: The bank officer, will I be
2 able to cross-examine him?
3 THE COURT: Of course.
4 MS. GERBER: So he doesn't leave.
5 THE COURT: You may step down.
6 THE WITNESS: Thank you, Your Honor.
7 THE COURT: He is going to leave the minute
8 he gets off this witness stand. Any cross examination you
9 do while he is here.
10 MS. GERBER: Okay. That's what I meant,
11 before he leaves.
12 THE COURT: Come on up, sir.
13 Whereupon,
14 DAVID A. BROWN,
15 having been duly sworn, testified as follows:
16 DIRECT EXAMINATION
17 BY MR. RUPP:
18 Q Mr. Brown, would you please state your full
19 name for the Court, please.
20 A I'm David A. Brown.
21 Q And where are you employed, Mr. Brown?
22 A I'm employed by PNC Bank, the trust
23 division, which is known by the service mark of PNC
24 advisors at 4242 Carlisle Pike, Camp Hill.
25 Q Can you identify what I have marked as
29
1 number 127
2 A Yes. That's our consent to serve as
3 co-guardian of the estate of Mildred Gerber.
4 Q And if the Court saw fit, you would also
5 serve -- PNC Bank would be willing to serve as guardian, is
6 that correct?
7 A Yes.
8 Q Can you inform the Court just briefly what
9 PNC does as a guardian of the estate?
10 A What we would do is we would inventory all
11 of the assets of Mrs. Gerber. We would take them under
12 control. We would -- in this specific case, we would see
13 that the expenses of the house -- the real estate expenses
14 were paid.
15 We would custody the assets that are
16 currently at Charles Schwab and generally collect the
17 income that Mrs. Gerber earns, and then dispense it for her
18 benefit or to her based on probably setting up some kind of
19 a budget and financial outline with Colonel Gerber.
20 Q Does PNC Bank do this for other people? -
21 A Yes, we do.
22 Q And do you know how many years of experience
23 PNC Bank has in this field?
24 A Through predecessor institutions, I think
25 PNC has been managing money as a fiduciary since about
30
1 1848.
2 Q And do you know what the dollar asset value
3 of PNC Bank is, if you know?
4 A The dollar asset value of the bank as -- the
5 assets of the bank are about 75 billion dollars. The
6 assets under management of PNC would be about 250 billion
7 dollars.
8 MR. RUPP: Your Honor, I have no further
9 questions of this witness.
10 THE COURT: Cross-examine.
11 CROSS EXAMINATION
12 BY MS. GERBER:
13 Q Good morning, Mr. Brown.
14 A Good morning.
15 Q My name is Marilyn Gerber. I am a
16 beneficiary of several trusts, and I too have grave
17 interest and concerns about my mother's --
18 THE COURT: Just ask him questions, ma'am.
19 BY MS. GERBER:
20 Q Are you aware of the testimony of Jennifer
21 Conway last month?
22 THE COURT: I am not going to allow that.
23 You stick to the questions on direct. The question is
24 whether the bank would act as a sole issue here, and the
25 direct testimony is whether the bank would act as either a
31
1 sole or joint trustee and whether the bank is a competent
2 institution to do so.
3 BY MS. GERBER:
4 Q Would you be the one to survey and manage
5 this guardianship, co-trusteeship?
6 A I would likely be the administrator of the
7 account.
8 Q Could you please give me your educational
9 background?
10 A Yes, I have a Bachelor's Degree.
11 Q In what, sir?
12 A I have a Bachelor's Degree in history.
13 Q Yes.
14 A I have a graduate certificate in trusts and
15 estate administration.
16 Q Does that mean a Master's Degree?
17 A No, it doesn't.
18 Q How many years does that graduate
19 certificate go to?
20 A I completed it in 1986. -
21 Q How many months, years did that take to get?
22 A It was a banking institute -- a banking
23 course with Northwestern University.
24 Q How long?
25 A Two years.
32
1 Q Full-time, how many --
2 A It was part-time and it was partially
3 correspondence, and then we had several weeks in the summer
4 every year to meet at Northwestern University in Evanston,
5 Illinois.
6 Q If you compressed it all together, would
7 that come out to maybe two months full-time, like, 40 hours
8 a week, six months, a year?
9 A Probably three or four months.
10 Q Next.
11 A I am currently completing the sixth level of
12 the certified financial planner course with the College for
13 Financial Planning in Denver, Colorado.
14 Q Anything else?
15 A I have a paralegal certificate from the
16 Institute for Paralegal Training in Philadelphia.
17 Q And what year was that, sir?
18 A 1982, I believe.
19 Q Are you a recognized paralegal in the
20 courts? _
21 A Well, I have a certificate, but I haven't
22 kept up any education simply because of the fact that I'm
23 not a paralegal.
24 Q So what --
25 THE COURT: What is your current position
33
1 with the bank?
2 THE WITNESS: I'm a vice president in charge
3 of administration in the Central Pennsylvania region for
4 PNC. I'm also a certified trust and financial advisor.
5 BY MS. GERBER:
6 Q Since when, sir?
7 A Since 1991, which is a banking certification
8 that requires continuing education.
9 Q How many months did it take to get that if
10 you compressed it together?
11 A That was part of what I got when I graduated
12 from the National Graduate Trust School and the National
13 Trust School at Northwestern University.
14 Q In '86. So that was part of that?
15 THE COURT: You have five minutes to
16 complete your cross examination. I want to remind you that
17 this man would not be a guardian if he was appointed. The
18 bank would be the guardian, that is PNC.
19 BY MS. GERBER:
20 Q Would you repeat back -- when I asked him if__
21 he would be managing this trust, he said more than likely
22 he would be managing it, yes. Is that correct what you
23 said?
24 A I would be the trust administrator. There
25 would be an investment officer. There would be an
34
1 operations officer that would be partially involved with
2 it, and there would also be at least two administrative
3 assistants.
4 Q And would you be doing -- this would be a
5 co-trusteeship with Colonel Freddie Gerber?
6 A Co-guardianship, yes.
7 Q And would you be the sole person to make the
8 financial decisions or would you make that with --
9 A We would make it in conjunction with Colonel
10 Gerber.
11 Q What about Mildred Gerber, would she have
12 any say?
13 A The decisions would be made by the bank and
14 Colonel Gerber.
15 Q So she would have no say?
16 A We certainly would be interested in her best
17 interest, but technically, no, she wouldn't.
18 Q Right. So you are not going to ask her what
19 she needs or worry month to month, and if she calls you too
20 bad?
21 A We're certainly going to do that.
22 Q But you just said that she would have no
23 interest in what she wanted with her money?
24 A I said that her interest would be of the
25 utmost importance to us, but she technically does not have
35
1 any power over the guardianship.
2 Q In lieu of -- do you think your bank is at
3 this point and time impartial to this family and its stress
4 management?
5 A I do believe that our trust department is
6 impartial.
7 Q Are you aware that Marilyn Gerber, myself,
8 was given power of attorney by Mildred Gerber?
9 MS. VERNEY: Objection, Your Honor,
10 irrelevant.
11 THE COURT: Sustained.
12 BY MS. GERBER:
13 Q Are you aware that Mrs. Gerber -- are you
14 aware that Mrs. Gerber has run 28 -- excuse me, 30 to
15 $50,000.00 a month non-interest bearing in her checking
16 account for the last three years?
17 A No, I'm not aware of that.
18 Q Are you aware that Jennifer Conway had
19 testified to that?
20 A No.
21 Q Could you tell me roughly off the top of
22 your head, three years from 30 to $50,000.00 a month, what
23 would the interest be if PNC had adequately invested that
24 and been concerned for Mrs. Gerber? What would that have
25 roughly come to?
36
1 A Well, to be honest with you, I couldn't give
2 an accurate answer to that because I'm not certain what the
3 average interest rates during a given period would be.
4 Q You don't remember -- as a certified
5 financial planner, you don't remember the average T-bill,
6 bonds and interest rate from the feds last year?
7 A I'm not a certified financial planner.
8 MR. RUPP: Asked and answered.
9 BY MS. GERBER:
10 Q Not yet?
11 A Right. That's correct.
12 Q But you will be, right?
13 A I presume I will be but I'm not yet.
14 Q So you are telling me today you could not
15 tell me the average interest rate on T-bills or bonds for
16 the last year, three months ago?
17 A Probably about five and half percent.
18 Q So could you calculate 50,000 times 12
19 months times three years roughly what that would be?
20 THE COURT: I am not going to have him do
21 that. You have one more minute, ma'am.
22 BY MS. GERBER:
23 Q So if Mrs. Gerber -- it's been established
24 that Mrs. Gerber ran about $50,000.00 a month non-interest
25 bearing for three years in her checking account. What
37
1 would give you the right now to come forward after you've
2 done very well with her money to say we want to manage her
3 money now on top of this? What would you use to
4 substantiate that?
5 THE COURT: That is not an appropriate
6 question. Next question.
7 BY MS. GERBER:
8 Q Have you checked with Jennifer Conway as to
9 the management of Mrs. Gerber's money in the last three
10 years?
11 A No.
12 Q Why is that?
13 A I didn't think it was relevant.
14 Q Are you aware that Mrs. Gerber asked Tom
15 DiLello to help her with some trust management issues?
16 A No. I am also aware that Tom DiLello is not
17 in anyway -- is not in anyway a part of our trust
18 department.
19 Q What is he then?
20 A He works for a separate bank subsidiary.
21 Q Which is?
22 A The PNC brokerage.
23 Q But that's investing money too, correct?
24 A Yes.
25 Q Are you aware that Mrs. Gerber sat down wit~
38
1 Tom DiLello in PNC Bank and discussed her interest and
2 desire for PNC to try and invest her checking account
3 money?
4 A No.
5 Q Are you aware that none of that ever
6 happened for per Mrs. Gerber's request?
7 A No.
8 THE COURT: The cross examination is over.
9 Sir, you are excused.
10 MS. VERNEY: Your Honor, I have two
11 questions.
12 THE COURT: All right.
13 CROSS EXAMINATION
14 BY MS. VERNEY:
15 Q How long have you worked as a trust officer?
16 A Fifteen years.
17 Q And do you know how many trusts you or your
18 department administers presently?
19 A In Camp Hill, we administer about three --
20 about 400 million dollars in trust assets, and that would ---
21 probably be about 450 accounts.
22 MS. VERNEY: That's all I have, Judge.
23 THE COURT: You are now excused.
24 THE WITNESS: Thank you.
25 THE COURT: Sir, you may retake the stand.
39
1 MS. GERBER: I thought he was finished, Your
2 Honor. Were you not finished, Mr. Rupp?
3 MR. RUPP: I wasn't.
4 MS. GERBER: I'm sorry.
5 DIRECT EXAMINATION (Cont'd)
6 BY MR. RUPP:
7 Q Fred, before we close up, did you observe
8 some items taken from your mom's residence when you got
9 back into your mom's residence?
10 A Most definitely.
11 Q And can you recall what items may have been
12 removed that you can recall?
13 A Yes, sir, I recall several significant
14 items. Mom and dad's silver service set monogrammed with
15 the letter G; almost everything out of mom and dad's
16 closet, in dad's bedroom, mom's wedding dress; every bit of
17 dad's World War II and Korea mementos, slide sets,
18 pictures; all of mom's family history, genealogy
19 documentation; certain rings, gems, jewelry that we recall
20 mom having but being missing; a sleigh bed, furniture,
21 personal mementoes; a significant stamp collection that
22 belonged to mom.
23 Q Any antiques?
24 A Well, the wedding dress was an antique.
25 Q Did your late father own any rifles or
40
1 anything like that?
2 A Yes, antique shotgun, a .22 caliber rifle.
3 Q Did this concern you?
4 A Yes, sir. It was, you know, as I said, the
5 icing on the cake happened on 12 January, but in addition
6 to the evacuation of every penny of mom's checking, money
7 market and credit card accounts, to walk into the house and
8 find no financial records that mom had kept very well for
9 three years, and then to walk around the house and suddenly
10 discover that everything had been pilfered of value to mom
11 and dad's family and genealogy was also concerning.
12 As I said, the last item was on 12 January
13 when I received a call from Marilyn Gerber from the bank on
14 her cell phone sitting with mom attempting to withdraw even
15 yet additional monies after we had taken steps to protect
16 mom's assets.
17 MS. GERBER: Excuse me, did you say 12
18 January?
19 THE WITNESS: I said 12 January 2001.
20 BY MR. RUPP:
21 Q Fred, I'm going to show you something I have
22 marked number 13. Can you identify what that is?
23 A Yes, sir. I'm looking at Gerber Exhibit No.
24 13 which is titled durable power of attorney.
25 Q And whose signature is on the front page?
41
1 A I see the signature of Mildred J. Gerber.
2 Q And on the third to last page, whose
3 signature is shown there as signing it?
4 A I see the signature of Mildred J. Gerber.
5 Q And that's your mom, correct?
6 A That is affirmative.
7 Q And who does this power of attorney appoint
8 as the agent?
9 A This power of attorney appoints myself,
10 Colonel Frederick E. Gerber, II, as agent.
11 Q Why was this one executed? Why was this
12 power executed?
13 THE COURT: What is the date on it?
14 THE WITNESS: This was dated 19 January
15 2001. This, in fact, was the second full and formal
16 physical and medical power of attorney that was initiated
17 by mom to appoint me as her agent, power of attorney.
18 We went to the extent of initiating this
19 power of attorney because it was unknown to us what --
20 because of everything that had happened, it was unknown to
21 us what documents Marilyn had initiated in an attempt to
22 revoke trusteeship, power of attorney, agencyship,
23 executorship.
24 BY MR. RUPP:
25 Q But you've been the long-standing power of
42
1 attorney for your mother, is that correct?
2 A Sir, since February of 1998.
3 Q And could you read to the Court paragraph 20
4 out of this one, if you will.
5 A Paragraph 20 is entitled guardianship of the
6 person and estate. For the purpose of recording my wishes
7 in a convenient place, I record here that if it is
8 necessary to appoint a guardian of my person or a guardian
9 of my estate it is my desire that my agent be appointed.
10 Q And this was also Exhibit E?
11 MS. GERBER: Excuse me. I don't have this
12 exhibit, Your Honor.
13 MR. RUPP: It's Exhibit E to the petition,
14 Your Honor.
15 BY MR. RUPP:
16 Q You also then, Fred, signed the consent
17 Exhibit B to the petition?
18 A That is affirmative.
19 Q And you also signed the statement that's
20 required by law, Exhibit C to your petition?
21 A That is affirmative.
22 MR. RUPP: Your Honor, I don't have any
23 further questions except for one.
24 BY MR. RUPP:
25 Q Fred, do you think there is -- based on
43
1 everything you have seen do you think there is a need -- in
2 observing your mom, do you think there is a need that there
3 be a guardian of the estate appointed for your mother?
4 A Sir, without any doubt in my mind, yes, I
5 do.
6 Q Is it based on -- what is it based on?
7 A Sir, as I -- in summary, as I have said
8 before, the rapid and full and complete evacuation of mom's
9 checking, money market, credit card accounts, an attempt to
10 revoke my lawfully appointed trusteeship, agency or power
11 of attorneyship, removal of significant items of equipment
12 or items of personal value out of the house.
13 Q And has any relative ever indicated any
14 interest in ownership in any of your parents' or mother's
15 assets?
16 A Interested ownership. Well, mom continues
17 to tell me that Marilyn claims that the house belongs to
18 her and the car belongs to her and that it's her house and
19 her car.
20 Q So based on everything you have seen, you
21 believe your mother needs a guardian?
22 A Absolutely.
23 Q Are you willing to be a co-guardian with PNC
24 Bank?
25 A I would hope that would be the case, sir.
44
1 Q But is it your desire that some guardian of
2 the estate be appointed by this Court?
3 A Affirmative.
4 MR. RUPP: No further questions, Your Honor.
5 THE COURT: We will take a break until 25
6 of. You may step down.
7 (Whereupon, a brief recess was taken.)
8 THE COURT: You may retake the stand.
9 Proceed. Proceed. Cross-examine.
10 MS. GERBER: I'm sorry. I misunderstood,
11 Your Honor. I thought he was going to continue.
12 CROSS EXAMINATION
13 BY MS. GERBER:
14 Q Good morning, Fred.
15 A Good morning.
16 Q Other than your grave concern since October
17 of 2000, do you have any other beefs with Marilyn Gerber?
18 A I have no other beefs with Marilyn Gerber.
19 Q None whatsoever? Do you have any legal
20 action in the court against Marilyn Gerber?
21 A I have a liable slander suit that is not
22 active in the court but is in preparation.
23 Q What does that mean?
24 A What does liable mean?
25 THE COURT: I know what liable means. Next
45
question.
2 BY MS. GERBER:
3 Q What is the nature of this liable and
4 slander suit?
5 THE COURT: How is this relevant on the
6 incapacitated -- whether or not your mother is
7 incapacitated?
8 MS. GERBER: Because I am going to show a
9 history, sir, that this is not about Mrs. Gerber, but this
10 is about the enrichment of Colonel Gerber and his lack
11 of -- his unwillingness to be removed legally.
12 THE COURT: It does not go to whether your
13 mother is incapacitated or not. We are dealing with one
14 issue preliminarily. Stay to that.
15 BY MS. GERBER:
16 Q Can you tell me -- you stated that you are
17 in charge of all medical operations for the U.S. Army?
18 A I stated that I was the director of
19 healthcare operations for the United States Army Medical
20 Department worldwide.
21 Q What does that mean? What do you do?
22 A I'm essentially the chief operating officer
23 for the Army Medical Department.
24 Q So that's all healthcare for every retired
25 and active military officer at all of the hospitals
46
1 worldwide for the Army?
2 A I don't know how other to explain that I act
3 as the chief operating officer for all active component
4 medical treatment facilities, medical centers.
5 Q So you are --
6 A Training, doctrine organizations, equipping
7 deployments, redeployments, mobilization for all things,
8 active reserve components, active retirees --
9 Q You can stop right there.
10 THE COURT: Wait. Don't tell him to stop.
11 MS. GERBER: I'm sorry.
12 THE COURT: I will tell him to stop if he is
13 off the line. Finish your answer or are you finished?
14 THE WITNESS: I don'tjknow where I was, but
15 I'm finished.
16 BY MS. GERBER:
17 Q Does that mean that you oversee the
18 operations of Walter Reed Hospital?
19 A Well, ma'am, as I said, I am the chief
20 operating officer. I provide general oversight and qualit~
21 assurance, technical advice, supervision of the operational
22 components of the Army Medical Department.
23 MS. GERBER: Your Honor, he's repeating
24 himself. He's not answering the question.
25 THE COURT: Ask another question. Also, you
47
are not asking relevant questions on the issue I am dealing
2 with.
3 MS. GERBER: Could I ask for a point of -- I
4 don't know what word to use -- reference? Mr. Rupp asked
5 him his background, and I am questioning his background.
6 THE COURT: He could be a garbage man, and
7 we would be in the same situation. Move on. We are
8 dealing with whether or not your mother is incapacitated or
9 not under Pennsylvania law.
10 MS. GERBER: Okay. Fine.
11 BY MS. GERBER:
12 Q What was Mrs. Gerber's mental capacity in
13 19987
14 A I found mom's mental capacity to be alert
15 and good. I referred to Dr. Michalek's, neurologist,
16 evaluation of mom on the 21st and again on the 29th of
17 January of the year 1998 which included a cranial MRI.
18 Dr. Michalek states that mom's mental status
19 was within normal limits. She scored 30 out of 30 on a
20 mental status evaluation. Having known mom for all my
21 life, I believe mom to be alert, very capable.
22 She knew the details of the Gerber
23 genealogy, every cousin, aunt, uncle, happening. She
24 kept --
25 MS. GERBER: Excuse me. Could I ask him to
48
1 answer my questions and not go on?
2 THE COURT: He is answering your questions.
3 MS. GERBER: But not to go on and add. I'm
4 asking specific questions.
5 THE COURT: He is within your questions.
6 MS. GERBER: Thank you.
7 THE COURT: Continue or are you finished?
8 THE WITNESS: No, sir. Can I continue?
9 THE COURT: Yes. She asked you what her
10 mental status was.
11 THE WITNESS: I found her to be very, very
12 mentally alert, very cognitive of what was happening. As I
13 said, beginning the month of dad's death, mom worked very
14 closely with me to set up her financial accounting. She
15 knew where every check was, what every bill was. She would
16 call me about, you know, a concern for this bill getting
17 paid or the property taxes.
18 THE COURT: You have answered now. Go
19 ahead.
20 MS. GERBER: Now, Your Honor, you know I'm
21 not an attorney. Colonel Gerber is lying. So do I just
22 say I'm going to impeach him or I impugn him?
23 THE COURT: You ask him questions. This is
24 cross examination.
25 MS. GERBER: Okay.
49
BY MS. GERBER:
2 Q Colonel Gerber, I believe you are lying.
3 I'm going to have Dr. Michalek --
4 THE COURT: You are making a statement.
5 There will be no statements. You ask questions.
6 BY MS. GERBER:
7 Q What was the length of Dr. Michalek's
8 examination on Mrs. Gerber in January of 19987
9 A I am unaware of the hour or minute duration
10 of the examination. I can only refer to the written report
11 that Dr. Michalek prepared.
12 Q Do you have it in your possession?
13 A I don't have it on me, no, I .don't.
14 Q And what was the result of the MRI again?
15 A I believe, quoting Dr. Michalek, it was
16 within normal limits.
17 Q You only believe that, you don't know for a
18 fact?
19 A I'm willing to state to the best of my
20 knowledge in this court that Dr. Michalek said mental
21 status evaluation was within normal limits, scored 30 out
22 of 30 on a mental status evaluation.
23 Q Who ordered those medical mental tests for
24 Mrs. Gerber?
25 A I am unaware of who ordered them.
50
1 Q Do you have any conjecture who it might have
2 been?
3 A I have no conjecture.
4 Q Could it have been her husband, Fred Gerber?
5 A I just said I have no conjecture. I have no
6 idea who ordered them.
7 Q Are you trained as a medic? Are you
8 certified as a medic in the U.S. Army?
9 A Well, could you give me the definition of a
10 medic?
11 Q Why don't you tell me what a medic means in
12 the U.S. Army.
13 THE COURT: I don't care. I know what a
14 medic is. I was in the U.S. Army. Next question.
15 BY MS. GERBER:
16 Q Are you a medic?
17 A Yes, sir. I am an expert field medic.
18 Q I'm not a sir. I'm a ma'am, actually. And
19 you can do what, please, as a medic?
20 A I'm an expert field medic. I can do basic
21 first aid, trauma assessment, triage, direction of care,
22 deployment of complex battlefield medical systems and a
23 complex field environment.
24 Q In other words, you are able to assess and
25 diagnose a soldier medically?
51
1 A Ma'am, I said I was an expert field medic.
2 A combat field medic is trained to have basically triage,
3 conduct primary surveys, assessments, to be able to direct
4 the care of those injured personnel on the battlefield,
5 evacuate, properly stabilize and follow-up patient care.
6 Q Well, actually, Colonel Gerber, I was in
7 Vietnam --
8 THE COURT: Well, stop, because he has not
9 himself offered an expert opinion as to whether your mother
10 is incapacitated.
11 MS. GERBER: He's not --
12 THE COURT: Stop and listen to me. He has
13 presented evidence to that. It will be my determination of
14 whether or not she is under Pennsylvania law. So move on
15 to something else.
16 BY MS. GERBER:
17 Q Are you able to put in IV's?
18 THE COURT: Nope. You just didn't listen to
19 me. Move on to something else.
20 MS. GERBER: Okay. -
21 BY MS. GERBER:
22 Q What did you do in 1998 to help Mrs. Mildred
23 Gerber medically for all of 19987
24 THE COURT: That does not go to the issue of
25 whether or not she is now incapacitated.
52
1 MS. GERBER: It goes to -- sir, I am --
2 THE COURT: It goes to what?
3 MS. GERBER: I am a licensed nurse in this
4 state.
5 THE COURT: It goes to what?
6 MS. GERBER: And I am a geriatric
7 specialist. It goes to show that Colonel Gerber has no
8 idea about -- is lying and creating false impression
9 about --
10 THE COURT: You are off the scope of the
11 direct and what I have limited this portion to. Move on to
12 something else.
13 MS. GERBER: Okay.
14 BY MS. GERBER:
15 Q In 1998 -- do you have an Excel spreadsheet
16 for your careful management of Mrs. Gerber's finances in
17 19987
18 A I do not.
19 Q And why is that?
20 A I had no need for one.
21 Q Why wouldn't you want a spreadsheet on what
22 was going on?
23 A I have no concern on what's going on with
24 mom's trusts that are in the care of Charles Schwab.
25 Q So they did the Excel spreadsheet for you?
53
1 A Charles Schwab provides me monthly
2 statements of all of the trust assets.
3 Q Do you have those for 19987
4 A I don't have those spreadsheets with me, no.
5 Q And what about her checking account at PNC,
6 do you have the monthly statements for 19987
7 A I don't have those checking statements with
8 me.
9 Q Do you have them in your possession?
10 A I do have copies in my possession.
11 Q And what did she average in her monthly
12 assets in 19987
13 A I came prepared to discuss the year 2000. I
14 would have to refer to my records to give you that answer.
15 Q So you don't have them with you?
16 A I just said earlier I don't have those
17 statements with me.
18 Q How convenient. And how about in 1999,
19 Colonel Gerber, do you have an Excel spreadsheet for Mrs.
20 Gerber's finances for 19997
21 A Yes, ma'am, I do. That was listed as --
22 Q Other than that exhibit.
23 A Other than what, ma'am?
24 Q That exhibit there.
25 A Ma'am, this is the Excel spreadsheet that I
54
1 prepared.
2 Q For 19997
3 a Yes, ma'am.
4 THE COURT: It is exhibit what, sir?
5 THE WITNESS: This is listed as Gerber
6 Exhibit --
7 MS. GERBER: Could I see it for a moment,
8 please?
9 THE COURT: Let him answer my question
10 first.
11 THE WITNESS: It's Gerber Exhibit 11.
12 THE COURT: Use your copy that you have.
13 BY MS. GERBER:
14 Q This is 2000. I don't see 1999 on this
15 anywhere, do you?
16 A Yes, ma'am, I do.
17 Q Where?
18 A At the very bottom. The bottom line is the
19 average '99 balances for those commodities.
20 Q But there is no -- okay. But there is no
21 monthly spreadsheet for 1999. I asked for a spreadsheet.
22 A spreadsheet is not just a one line total per accounting
23 CPA rules.
24 Q Well, ma'am, I'm not a CPA. You asked --
25 THE COURT: You have the exhibit you
55
1 produced, right?
2 THE WITNESS: Yes, sir.
3 BY MS. GERBER:
4 Q For 1999, do you have this spreadsheet
5 available like you did for 2000 month by month?
6 A Negative.
7 Q Do you know what Mrs. Gerber averaged in
8 1999 in her PNC checking?
9 A I don't have that figure on Exhibit 11.
10 Q Okay. Do you have all of the monthly
11 statements from her checking from PNC for 19997
12 A Affirmative.
13 Q And where are they?
14 A They are at my home.
15 Q Why didn't you bring them today?
16 A I came prepared to this court to express my
17 grave and urgent concern for what had happened in the year
18 2000.
19 Q In order to have grave and urgent concern
20 for the excellence that you have presented to this court
21 and your military background, would it not be plausible
22 that.you would have to have some comparisons from '98, '99,
23 2000?
24 A Ma'am, I said in previous testimony I did
25 that comparison. I took all of the additions for the
56
1 fiscal year or calendar year 1999 which represents the last
2 line on that spreadsheet across the multiple commodity
3 areas across the top to be able to form a comparison with
4 the year 2000.
5 Q There is no spreadsheet that delineates 1999
6 whatsoever, sir.
7 THE COURT: He has brought Exhibit 11. That
8 is what he said he has.
9 MS. GERBER: But there is no spreadsheet for
10 1999.
11 BY MS. GERBER:
12 Q What is your financial experience and
13 background, please?
14 THE COURT: That does not go to whether or
15 not your mother is incapacitated.
16 MS. GERBER: I'm trying to impugn his
17 testimony financially. With grave and urgent concern, what
18 is his financial experience of analyzing even --
19 THE COURT: You produce evidence as to what
20 the financial situation was regarding your mother. That is
21 what is relevant on the issue of incapacity.
22 BY MS. GERBER:
23 Q Does Mrs. Gerber have the right to do
24 whatever she wants with her money?
25 THE COURT: Don't ask him legal questions.
57
Ask him direct factual questions.
2 BY MS. GERBER:
3 Q Do you have any problem with your mother
4 spending the money as she wants?
5 A I am very close to mom. I have a very good
6 sensing and feeling as her son on how mom has exhibited a
7 spending trend. I have very good knowledge and very
8 excellent comfort level in understanding how mom wishes to
9 spend her money.
10 I most certainly have knowledge on whether
11 mom even knows her money and assets are being spent. So in
12 answer to your question, I believe, of course, mom has the
13 right to spend her money if she knows it's being spent.
14 MS. GERBER: Your Honor, I would like to
15 exit right now from this testimony and ask a question.
16 There is a witness in the back there. For the
17 confidentiality of Mrs. Gerber and this family, she was
18 subpoenaed by me. Could I ask her to step out, please?
19 THE COURT: She is your witness?
20 MS. GERBER: Yes.
21 THE COURT: Where is the witness from?
22 MS. GERBER: It's Mrs. Whipple. I would
23 like her to step out for the confidentiality of Mrs. Gerber
24 and this family. Please, would you step out.
25
58
BY MS. GERBER:
2 Q You say you are very close to your mother.
3 Could you explain why you refuse to give Mrs. Gerber your
4 home telephone number?
5 THE COURT: No, it is not relevant.
6 MS. GERBER: Well, if he's close to her and
7 he wants to be a guardian --
8 THE COURT: Ma'am, you are going to quickly
9 put a time limitation on your cross examination if you do
10 not stay on track.
11 MS. GERBER: I apologize.
12 BY MS. GERBER:
13 Q Again, you didn't answer the question and to
14 my satisfaction understand. Would you let your mother
15 spend her money which --
16 THE COURT: He answered your question to my
17 satisfaction. Next question. _
18 BY MS. GERBER:
19 Q Can Mrs. Gerber give her money to anybody
20 she wants?
21 THE COURT: Don't ask him legal questions.
22 Next question.
23 BY MS. GERBER:
24 Q Would you have any trouble in Mrs. Gerber
25 giving her money to anybody she wants?
59
1 THE COURT: Don't ask him legal questions.
2 BY MS. GERBER:
3 Q How much money has Mrs. Gerber given you,
4 sir, in 19987
5 A Mom has given me no outright gifts of money.
6 Q Why is that?
7 A I have asked for none. I needed none.
8 Q How about your children?
9 A None that I recall.
10 Q Immediately after Mr. Gerber's death, did
11 you not ask her to send $4,700.00 to your son's bank
12 account in North Carolina, Sasha Gerber, for his tuition?
13 Think very carefully, Colonel Gerber.
14 THE COURT: Don't tell him what to think or
15 what to say. You ask a question and he will answer.
16 MS. GERBER: Your Honor, I'm not an
17 attorney.
18 THE COURT: Well, you are going to be an
19 attorney in that regard. I am not going to let you violate
20 it again, and you have done it three times already. Do you
21 recall whether or not you asked your mother to send some
22 money down for your son's education?
23 THE WITNESS: That was a request from my
24 son, Sasha Gerber, directly to mom.
25
60
1 BY MS. GERBER:
2 Q And did she fulfill that?
3 A Yes, she did.
4 Q And was your son of age at that time?
5 A Would you describe what of age means?
6 THE COURT: How old was he at that time,
7 sir?
8 THE WITNESS: He would have been
9 approximately 19 years old.
10 BY MS. GERBER:
11 Q Were you aware that he asked her for that
12 money?
13 A Yes, I was.
14 Q Did you give her the instructions on how to
15 wire that money to his account in North Carolina?
16 A I don't recall.
17 Q Did you write a check out of your mother's
18 checking account for $6,000.00 to Jane Gerber in early '98
19 right after your father's death?
20 A Out of mom's checking account?
21 Q Um-hum.
22 A I don't have those records. I don't recall.
23 Q You don't recall at all?
24 A That's what I just said, ma'am.
25 Q In 1999, do you recall any monies that Mrs.
61
1 Gerber gave to you?
2 A In 1999, I don't recall receiving any money
3 from mom --
4 Q How about --
5 A -- as gifts or outright.
6 Q How about your children?
7 A Negative.
8 Q And in 2000, how much did Mrs. Gerber give
9 to you?
10 A In the year 2000?
11 Q Um-hum.
12 A Same thing as all previous years. I don't
13 recall any outright gifts from mom's checking account.
14 Q Do you recall Mrs. Gerber in 1999 giving a
15 check of $2,000.00 to Marilyn Gerber?
16 A In the year 2000?
17 Q__ Um-hum.
18 A Oh, yes, I do.
19 Q All right. And what was that for?
20 A I believe that was to pay for your attorney.
21 Q In 19987
22 A Oh, I thought you said 2000.
23 MR. RUPP: Your Honor, she did say 2000.
24 MS. GERBER: I take it back, Your Honor.
25 1998. Thank you for correcting me, Mr. Rupp.
62
1 THE WITNESS: As I just said, I came
2 prepared to talk about --
3 THE COURT: You do not recall?
4 THE WITNESS: I don't recall.
5 THE COURT: Next question.
6 BY MS. GERBER:
7 Q Is it possible that you wrote in Mrs.
8 Gerber's check register yourself the $2,000.00 to Marilyn
9 Gerber in your own handwriting?
10 A I don't believe it is.
11 Q How about the $6,000.00, is it possible it's
12 in your own handwriting?
13 A I can't answer that.
14 Q What about did you ever write in Mrs.
15 Gerber's check registers for PNC Bank in 1998 in your own
16 handwriting?
17 A I don't ~rDcall.
18 Q Did you manage Mrs. Gerber's checking
19 account and monthly bills in 19987
20 A In '98, in '99 and the year 2000, as I have
21 said, mom managed her own financial accounts. I came up
22 and conducted monthly maintenance and supervision in the
23 red fiscal accounting box, organized by files January
24 through December, to make sure that mom had paid her bills,
25 was keeping her checking statements and cancelled checks
63
1 together.
2 Q And do you have an actual diary log of each
3 month that you came up, the date that you came up from '98,
4 '99, 2000?
5 A A diary log, no, I don't.
6 Q Are you stating in 1998 you came up every
7 month, 12 visits, to Mrs. Gerber once a month?
8 A At least.
9 Q And how about '99?
10 A The same.
11 Q You came in September of 1999 to mother?
12 A I just said I don't have logs. I would have
13 to go back and check.
14 Q But you just stated each month you came.
15 That's 12 months in a year. So in 1999, did you come in
16 September of '99?
17. THE COURT: He answered your question. Move
18 on. Remember the issue. Is she currently incapacitated.
19 MS. GERBER: Okay.
20 BY MS. GERBER:
21 Q In 2000, you stated that in testimony that
22 you did every month you came up and carefully went through
23 Mrs. Gerber's accounts. Were you there in August of 2000?
24 A I recall my testimony as saying that those
25 visits started to stop on or about August of the year 2000
64
1 about the time that you moved back into mom's home or back
2 into the area which made it very inconvenient, almost
3 impossible, for me to conduct a reasonable, friendly visit
4 with mom.
5 Q Why is that, Colonel Gerber?
6 THE COURT: It is not going to whether she
7 is incapacitated. Move on.
8 MS. GERBER: Okay. So it's not worth going
9 back, to have her read it back, because he didn't say that?
10 THE COURT: Worthless is the point. Move
11 on.
12 MS. GERBER: Okay. Excuse me, Your Honor, I
13 would like to ask him questions to what Mr. Rupp asked him.
14 THE COURT: Absolutely. That is cross
15 examination.
16 MS. GERBER: All right. I can't just do
17 this in a second, a New York second here. I'm going to
18 take each question and the notations I made to questions he
19 asked.
20 THE COURT: Sure.
21 BY MS. GERBER:
22 Q Mr. Rupp went through Exhibits 1, I think,
23 through 9 of all these check numbers that you alleged that
24 were given -- that Mrs. Gerber wrote out. Did you happen
25 to notice that the check register -- the check numbers were
65
1 never in sequential order?
2 A Yes, I did.
3 Q What do you think about that?
4 A I account for that that mom had multiple
5 checkbooks in multiple locations and that you and/or mom
6 were using different checkbooks from different locations.
7 Q So this is an assumption, correct?
8 THE COURT: Well, that is what you asked
9 him, what did he assume.
10 MS. GERBER: No, what did you think.
11 THE COURT: Well, that is what he said.
12 MS. GERBER: I'm sorry, Your Honor, correct.
13 THE COURT: Next question.
14 BY MS. GERBER:
15 Q You stated in the beginning of the cross
16 examination -- or the questioning about the urgent and
17 grave concern for the evacuation of her money. How much
18 money does Mrs. Gerber have at her disposal to spend
19 however she wants in all the trusts combined? Could you
20 state that?
21 THE COURT: You mean today?
22 MS. GERBER: Yes. Well, let's go from --
23 well, can we go '98, '99, 2000?
24 THE COURT: Are you asking him what her
25 financial abilities are to spend money from either of the
66
1 two trusts or both?
2 MS. GERBER: Yeah. What's her combined net
3 worth?
4 THE COURT: Well, that's a totally different
5 question. Ask a question.
6 BY MS. GERBER:
7 Q Mrs. Gerber is part of a trust A and B set
8 up by her husband, is that correct?
9 A I have stated that today.
10 Q And she's a beneficiary of approximately
11 $318,000.00 and some cents as of '98, correct?
12 A As I have said earlier, she has about
13 $236,000.00 in dad's living trust.
14 Q That's as of today. But I asked in 1998.
15 She was able to access $318,000.00, was she not?
16 A As I have said many times, I did not come
17 prepared to discuss 1998 or 1999.
18 Q Okay. And the trust in her name, when was
19 that established?
20 A I can't answer when the trust -- when the
21 living revocable trust was established by dad for mom.
22 Q You signed it.
23 A You asked me when it was established. I
24 don't know when dad established it.
25 Q You don't remember or you don't know? Your
67
signature is on it, Colonel Gerber.
2 A Ma'am, I became trustee for mom's revocable
3 trust in February of 1998. When it was established, I
4 don't know.
5 Q But your signature is on that when it was
6 established, Colonel Gerber.
7 THE COURT: He has answered your question.
8 He does not know.
9 MS. GERBER: Okay. He doesn't remember.
10 BY MS. GERBER:
11 Q The money that you -- the $300,000.00 that
12 you said that Mildred Gerber has in her own personal trust,
13 when was that established?
14 A Well, just like dad's account, I became
15 trustee for mom's revocable living trust in February of
16 '98. As to when it was established by my deceased father,
17 Fred E. Gerber, I am ~nable_to answer.
18 Q Let me clarify that. When was it funded,
19 Colonel Gerber? When was Mrs. Gerber's personal trust --
20 aside from the beneficiaries A and B of the $318,000.00
21 that all eight of us are a part of, when was her personal
22 trust funded? Do you understand the word funded?
23 A No, ma'am, I don't understand that word.
24 I've tried to answer to the best of my ability. I
25 became --
68
1 Q Let me help you out here, please, if you
2 don't mind. I would like to ask the questions.
3 THE COURT: It has nothing to do with
4 whether she is incapacitated. So you are using time up.
5 MS. GERBER: Your Honor, maybe you could
6 help me out. Is there a time limit on how I ask --
7 THE COURT: Not at the moment as long as you
8 move on.
9 BY MS. GERBER:
10 Q Colonel Gerber, anybody can write a trust
11 with terms and specifications. You can leave it to a cat,
12 a dog, you know --
13 THE COURT: See, you are getting to the
14 point where I am going to put a time limit on you. You are
15 making statements, ma'am. Ask questions.
16 BY MS. GERBER:
17 Q I asked you -- -
18 THE COURT: He did not know. Next question.
19 BY MS. GERBER:
20 Q Would you please -- you stated money figures
21 earlier in cross examination by Mr. Rupp as to the total
22 net worth of Mrs. Gerber, but you didn't give a total net
23 worth. Would you now please add up all of the numbers of
24 all of the trusts other than her checking account from her
25 husband's Army pension, SSI, et cetera, et cetera? Would
69
1 you please give me all of the trust money that Mrs. Gerber
2 has at her availability?
3 THE COURT: Have you stated to me already
4 what the current value of the trusts are?
5 THE WITNESS: About three times, sir.
6 THE COURT: He has given me it. I do not
7 need him to do any addition. I am very good at addition.
8 Next question.
9 MS. GERBER: So what is it? I would like to
10 know, Your Honor.
11 THE COURT: Well, you can add it up. It is
12 in the record.
13 BY MS. GERBER:
14 Q So 300 and 200, so it's about a half a
15 million dollars, plus or minus? Is that good enough?
16 A Ma'am, I'll be very happy to state again.
17 ..... There is approximately $236,000.00 in dad's irrevocable
18 trust. There is approximately $300,000.00 in mom's
19 revocable living trust.
20 Q That's $536,000.00 aside from her checking ~-
21 account assets, right?
22 A If that's what it adds up to, ma'am.
23 Q And she has total access to that trust for
24 whatever she wants, is that correct?
25 A That's affirmative.
70
1 Q So how did the grave and urgent concern come
2 about when she was spending money? What made you consider
3 she was incapacitated?
4 A Well, ma'am, that's a very good question and
5 the reason that I came here today. My grave and urgent
6 concern came about as a result of the complete, and when I
7 mean complete, the total evacuation of mom's checking
8 account which in May of 2000 was some $32,000.00. In
9 August of the year 2000, it was some $23,000.00. On --
10 Q Excuse me.
11 THE COURT: You have asked him a question.
12 You have got to let him --
13 MS. GERBER: I'm not allowed to stop him,
14 Your Honor?
15 THE COURT: You can continue. You asked him
16 an open-ended question, and he can answer.
17 MS. GERBER: Can I ask for a point.~of
18 assistance?
19 THE COURT: No, no point of assistance.
20 Continue. You may continue.
21 THE WITNESS: In May of the year 2000, mom
22 had $32,000.00 in her checking account. In August of the
23 year 2000, mom had $23,000.00 in her checking account.
24 Ma'am, by 31 December, mom's banking account was overdrawn.
25 Again, continuing with my grave and urgent concern, mom's
71
1 money market completely evacuated to the penny, $20,000.00
2 in credit card, major personal valuable items taken out of
3 the house.
4 MS. GERBER: Excuse me, Your Honor. We're
5 talking about the money here. Please don't elaborate on
6 this.
7 THE COURT: You asked him what his grave and
8 urgent concerns were and he hasn't completed. And items
9 taken from the house. Anything else?
10 THE WITNESS: Yes, sir.
11 THE COURT: Go ahead.
12 THE WITNESS: Continued attempts -- despite
13 my attempts with mom to protect her banking assets,
14 continued attempts by you on the 12th of January to
15 continue to get access to the new checking accounts with
16 passwords that we had established, meaning mom and I had
17 established, to--protect her financial assets. So in
18 summary, that is th~ basis of my grave and urgent concern
19 for mom's financial status.
20 BY MS. GERBER:
21 Q But Mrs. Gerber had a half million dollars,
22 so if she wanted to spend $30,000.00, she had another half
23 a million dollars plus to --
24 THE COURT: That is argumentative. Elicit
25 facts.
72
BY MS. GERBER:
2 Q What was grave and urgent if she decided to
3 spend her money after three years?
4 THE COURT: That is not eliciting facts.
5 BY MS. GERBER:
6 Q What's your personal opinion about her
7 spending 30, $40,000.00 --
8 THE COURT: One more question like that and
9 we are going to put a time limit on you.
10 MS. GERBER: I'm sorry, Your Honor. I don't
11 know how to ask him as an attorney.
12 THE COURT: See, you are not listening to
13 what I am saying. If you would listen, you would hear me
14 say over and over again, and I will say it to lawyers and
15 self-litigants, elicit facts. You save argument for
16 closing argument.
17. MS. GERBER: Got it. All right.
18 BY MS. GERBER:
19 Q Who is Joe Metz, Colonel Gerber?
20 A Joe Metz is mom's former attorney.
21 Q That's correct. And did he not vacate a
22 restraining order upon Mrs. Gerber's wishes against Marilyn
23 Gerber?
24 A I'm unaware of that.
25 Q You are not aware that a restraining order
73
1 was vacated on November 17
2 A Ma'am, that's what I just said. I'm not
3 aware of that.
4 Q Are you aware that Mr. Metz drew up a
5 revocation document for Mrs. Gerber to sign?
6 A I am definitely not aware of that.
7 MS. GERBER: I have a lot of documents here.
8 I'm sorry, Your Honor. In the interest of time, Your
9 Honor, there was in Mr. Rupp's petition, if you don't mind
10 helping me, in the February 1 petition, you have a
11 revocation document that you have submitted as an exhibit.
12 It might have been following the hearing memorandum. You
13 used that copy.
14 MR. RUPP: It's also Exhibit No. 1.
15 MS. GERBER: Exhibit No. 1. May I approach?
16 THE COURT: Well, he has it. Do you have it
17 in front of you, sir?
18 THE WITNESS: Yes, sir, I have Exhibit No. 1
19 in front of me.
20 BY MS. GERBER:
21 Q As a revocation by Mildred Gerber of all
22 trustees and powers of attorney, do you know anything about
23 this document?
24 A Well, I know that you tried to present it to
25 Charles Schwab to gain access to both trusts. I am aware
74
that you tried to use these documents with mom's MBNA
2 credit card accounts.
3 I'm aware that you tried to use it with the
4 United Services Automobile Association. I'm aware that you
5 tried to use this document at PNC Bank to gain control of
6 mom's checking, money market and credit --
7 Q That's your opinion, correct, Colonel
8 Gerber? All of those things are your opinion, correct?
9 You don't have any factual evidence on that, do you?
10 A Ma'am, as I've stat'ed before, I received
11 phone calls from these institutions questioning the
12 legality or the intent or the purpose of this document.
13 Q Have you been told whether or not this
14 document is legal by anybody? Have you sought any counsel
15 to find out whether this document was legal?
16 THE COURT: Whether it is or is not does not
17 go to the issue that I am dealing with.
18 BY MS. GERBER:
19 Q Do you acknowledge that this is Mrs.
20 Gerber's, Mildred Jane Gerber's, signature?
21 A I will state that it says Mildred J. Gerber.
22 I cannot verify whether it's her signature or not.
23 Q Are you intimating it's somebody else's
24 signature?
25 THE COURT: He is not doing that. You asked
75
1 him a simple question, and he said he is not sure.
2 BY MS. GERBER:
3 Q Can you recognize after 49 years --
4 THE COURT: Ma'am, move on to something
5 else.
6 BY MS. GERBER:
7 Q And it says --
8 THE COURT: Not with respect to this
9 document, something else that is important for me to deal
10 with capacity.
11 BY MS. GERBER:
12 Q In your attorney's order or petition for
13 guardianship, they state that this is a forged document,
14 among other documents, and also there is a letter that is
15 handwritten out by Mrs. Gerber where she fires her attorney
16 Joe Metz. Could you tell me how that happened?
17 THE COURT: That is not an appropriate
18 question. Next question.
19 BY MS. GERBER:
20 Q Let's go back to Joe Metz. He was an
21 attorney for Mrs. Gerber?
22 A Well, in discussing with mom, mom never
23 sought Joe Metz out as an attorney, never asked him to come
24 to her house. Mom recounts to me that you found Joe Metz.
25 Mom tells me that you brought Joe Metz to the house. Mom
76
also tells me that you did most of the talking with Joe
2 Metz.
3 Mom tells me that she had no need for Joe
4 Metz, didn't understand what Joe Metz was trying to do.
5 Mom also tells me that she felt pressured to go along with
6 what Joe Metz put in front of her based on the pressure mom
7 tells me you were exerting on her.
8 Q How did Mrs. Gerber find Ms. Jacqueline
9 Verney, please?
10 THE COURT: That is not a question for --
11 BY MS. GERBER:
12 Q Did Mrs. Gerber go by herself to Carlisle to
13 see Ms. Verney in January of 20017
14 THE COURT: Elicit facts, ma'am. You are
15 asking opinions on how she got a lawyer.
16 BY MS. GERBER:
17 Q Did you accompany Mrs. Gerber to Jacqueline
18 Verney's office in January 20017
19 A Affirmative.
20 Q Did you find Ms. Verney for Mrs. Gerber or
21 did she find Ms. Verney herself out of a phone book?
22 A I found Ms. Verney for Mildred Gerber.
23 Q Right. So it's kind of like you also --
24 THE COURT: You are arguing, ma'am.
25 MS. GERBER: I would like to submit an
77
1 original -- I would have to make a copy of this, Your
2 Honor, but I would like to show --
3 THE COURT: It is already in evidence. You
4 are talking about the --
5 MS. GERBER: No, this is a new document.
6 THE COURT: Have it marked first, and then
7 you can ask questions.
8 MS. GERBER: Do you have a sticky? Do we go
9 on my own exhibit numbers or do we continue from their
10 exhibit numbers?
11 THE COURT: You go on your own.
12 MS. GERBER: I'm on my own. Exhibit 1.
13 (Whereupon, Protestant's Exhibits 1
14 through 3 were marked for identification.)
15 BY MS. GERBER:
16 Q Colonel Gerber, did you receive in November
17 of 2000 a co-plaintiff action to ask this court to order
18 full fiduciary accounting on a trust?
19 THE COURT: You are off the scope of what we
20 are dealing with now. That may be relevant later on in
21 this proceeding but it is not now.
22 BY MS. GERBER:
23 Q Would you be happy to read that, please?
24 THE COURT: What is it?
25 MS. GERBER: It is handwriting by Mrs.
78
1 Gerber about her retaining Joe Metz to vacate a restraining
2 order which you signed, Your Honor, on November of 2000.
3 MS. VERNEY: Your Honor, I would object to
4 it as being irrelevant.
5 THE COURT: Sustained.
6 MS. GERBER: I would like to submit an
7 exhibit in my mother's handwriting where she is asking Joe
8 Metz to vacate Colonel Gerber's --
9 MR. RUPP: Relevance again, Your Honor.
10 THE COURT: Sustained.
11 MS. GERBER: I'm sorry, I don't understand.
12 THE COURT: I sustained it. I sustain the
13 objection.
14 MS. GERBER: Could I ask --
15 THE COURT: Ma'am, you have got to remember
16 again, I don't know how many times I have said it, tell me
17 what the issue is right here. Tell me what the issue is
18 right here.
19 MS. GERBER: It's incapacity.
20 THE COURT: Right.
21 MS. GERBER: And Mrs. Gerber retained Mr.
22 Metz.
23 THE COURT: The question is her incapacity
24 today.
25 MS. GERBER: Right.
79
1 THE COURT: Proceed on it.
2 MS. GERBER: Is it today or was it not from
3 October of 2000?
4 THE COURT: If she is incapacitated now, I
5 will appoint a guardian of her estate. If she is not, I
6 won't.
7 MS. GERBER: Then I would like to go to show
8 proof that Mrs. Gerber has never been incapacitated about
9 her affairs as Colonel Gerber has stated.
10 THE COURT: Reading a piece of writing is
11 not relevant.
12 MS. GERBER: Well, I'll cross-examine Mrs.
13 Gerber then.
14 BY MS. GERBER:
15 Q Did Mrs. --
16 MS. GERBER: Your Honor, are we -- I would
17 like to ask for a point of reference. When you started the
18 hearing last month, you came in and said I would like to
19 make sure that this is a guardianship for financial.
20 THE COURT: This is guardian of the estate
21 only.
22 MS. GERBER: Estate only. So it's not her
23 medical or mental abilities, correct?
24 THE COURT: I cannot answer your questions.
25 The question is whether or not she is incapacitated under
80
Pennsylvania law.
2 MS. GERBER: So to get to the quick about
3 this cross examination, I'm assuming that we are trying to
4 establish capacitation or incapacitating for her to manage
5 her financial affairs only, is that correct?
6 THE COURT: I am not going to give you legal
7 advice. The statute is in the statute book. The question
8 is whether under Pennsylvania law she is incapacitated and
9 incapacitation as defined in the statute. You may proceed.
10 The plaintiff seeks a petition for a guardian of the estate
11 only. That is what I am dealing with. They say she is
12 incapacitated. You apparently say she is not. Move on.
13 BY MS. GERBER:
14 Q Colonel Gerber, you stated that Mrs. Gerber
15 kept careful, detailed, regular statements on her monies,
16 is that correct, in '98, '99, 2000?
17 A I've said that several times, yes, ma'am.
18 Q And why is it in August of 2000 you no
19 longer could come up monthly and do things?
20 THE COURT: He has answered it. Next
21 question.
22 BY MS. GERBER:
23 Q Well, what was it about Miss Marilyn Gerber
24 that bothered you?
25 THE COURT: Oh, he has answered it. Next
81
1 question?
2 MS. GERBER: Well, he said it made it
3 impossible. He didn't delineate what that was.
4 By MS. GERBER:
5 Q I would like to go through a sequence of
6 events, please. On December 18th, 2000, did you not -- did
7 you change the mailing address on Mrs. Gerber's MBNA credit
8 card from her house to your house in Virginia? That's a
9 yes or no answer, please.
10 THE COURT: Do not tell him how to answer.
11 MS. GERBER: I'm sorry.
12 THE COURT: Did you do that?
13 THE WITNESS: I may have. I don't
14 specifically recall that day. But, yes, I had generally
15 requested because I was unable to find any financial
16 documents in mom's red box, accounting box, we called it.
17 So, yes, I asked~.for those statements to be sent to my
18 residence.
19 BY MS. GERBER:
20 Q Did you not take Mrs. Gerber's accounting
21 box from her closet, Colonel Gerber?
22 A In December of the year 2000, I took mom's
23 red accounting box, yes, ma'am, I did.
24 Q What did you find in that box, Colonel
25 Gerber?
82
1 A Literally nothing, empty file folders.
2 Q You're stating that there was nothing in
3 those files month by month in her red box?
4 A Ma'am, I've said it before --
5 Q You said literally nothing. So what was
6 there?
7 A Well, literally nothing. There were empty
8 file folders for January, February, March through December,
9 file folders, file dividers only.
10 Q And there was nothing in any of the file
11 folders?
12 A No. Ma'am, I've just said that. There were
13 no -- not a single financial document inside those empty
14 file folders.
15 Q I would like to impeach this witness. I
16 don't know how I do it, but I'll state that. Could you
17 tell me in 1998 the method and the way Mrs. Gerber
18 organized her financial statements?
19 THE COURT: He has already told me that. It
20 has been asked and answered. -
21 BY MS. GERBER:
22 Q So Mrs. Gerber carefully filed everything in
23 the red financial box?
24 THE COURT: It calls for a conclusion. It
25 has been asked and answered.
83
1 BY MS. GERBER:
2 Q Did Mrs. Gerber file everything carefully in
3 these boxes?
4 A I've said that multiple times. Yes, ma'am,
5 she did.
6 Q On December 26th, on or about, did you
7 become aware of a revocation document signed by Mrs.
8 Gerber? We're going to go through a sequence of events to
9 establish competency, sir. Yes or no, please.
10 THE COURT: Do not tell him how to answer.
11 MS. GERBER: Okay.
12 THE WITNESS: As I have stated before, I
13 first became aware of this revocation of trusteeship and
14 power of attorney on or about the 28th of December.
15 BY MS. GERBER:
16 Q All right. And at that time were you also
17 aware that Marilyn Gerber had legal power of attorney over
18 Mrs. Gerber's checking account as well?
19 A No, I was not.
20 Q When did you find out that she had power of
21 attorney?
22 A On or about the 29th of December of the year
23 2000.
24 Q The 29th of December. So all of the checks
25 written prior to the 29th of December -- what month was
84
1 Marilyn Gerber given POA, please?
2 A I don't know the answer to that question.
3 Q But you are aware that she was Power of
4 attorney, correct?
5 A I was told by PNC Bank on the 29th of
6 December of the year 2000 that.
7 Q Were you also co-power of attorney at PNC?
8 A On February of 1998, I became mom's general
9 financial and medical power of attorney.
10 Q All right.
11 A Which extends to PNC Bank.
12 Q So if Marilyn Gerber -- you became aware
13 Marilyn Gerber was also a legal POA. So what's your beef
14 on --
15 THE COURT: We do not ask what is your beef
16 questions in court. Next question.
17 MS. GERBER: Sorry.
18 THE COURT: And I alert you again, you are
19 doing nothing to enlighten me on the central issue I must
20 decide. You are wasting time. Therefore, I am limiting
21 your cross examination and at noon it will stop.
22 BY MS. GERBER:
23 Q If Marilyn Gerber was power of attorney
24 legally at PNC Bank and you were, what were the problems on
25 any checks or monies written for Mrs. Gerber's welfare?
85
1 THE COURT: Improper question.
2 BY MS. GERBER:
3 Q What was your concern?
4 THE COURT: He has already told me what his
5 concerns are. Asked and answered.
6 MS. GERBER: I don't understand them, Your
7 Honor.
8 THE COURT: Pardon me?
9 MS. GERBER: Could he repeat it because I
10 don't understand it?
11 THE COURT: I know you don't, but you are
12 going to have to just move on.
13 BY MS. GERBER:
14 Q On December 29th, you came to town as you
15 stated?
16 A That's affirmative.
17 Q It was a Friday before New Year's Eve -- of
18 New Year's Eve weekend, correct?
19 A Well, I don't have a calendar. Ma'am, if it
20 was the New Year's -- or the weekend before New Year's,
21 then it was the 29th of December.
22 Q 29, 30, 31, so that's --
23 THE COURT: You are wasting time. I will
24 further limit you on cross if you continue to do that.
25
86
1 BY MS. GERBER:
2 Q When you came to town, did you then on the
3 29th of December close Mrs. Gerber's checking account, her
4 existing checking account?
5 A Yes, ma'am, I did.
6 Q And did you revoke Marilyn Gerber's power of
7 attorney?
8 A Mildred Gerber sat with me on the 29th of
9 December of the year 2000 at PNC Bank in front of the bank
10 agent Jennifer Conway. Mom initiated closure of her old
11 bank account. Mildred Gerber revoked your power of
12 attorney to write checks.
13 Q Why did she do that? Was that upon your
14 suggestion, strong suggestion, urgent and grave concern?
15 A On the 29th of December of the year 2000,
16 mom was aghast to find that she had no money in her
17 checking account. Mom was surprised to learn that you had
18 withdrawn every penny of mom's money market account. And
19 on the 29th of December of the year 2000, mom was aghast,
20 surprised, totally unaware that she had incurred some
21 $20,000.00 in credit card fees.
22 Q Was Marilyn Gerber a legal card holder on
23 the MBNA account?
24 A I don't know the answer to that question.
25 Q Did Marilyn Gerber have -- you, Colonel
87
1 Gerber, in your documentation by Mr. Rupp you stated that
2 Marilyn Gerber into January of 2001 was given a card by
3 MBNA.
4 A Well, I became aware in January of the year
5 2001 that someone claiming to be Mildred J. Gerber had
6 called MBNA and asked to issue a credit card in the name of
7 Marilyn Jo Gerber.
8 Q Did they identify who that was?
9 A They were unable to identify who that was.
10 Q On December 29th at approximately 2:15 in
11 the afternoon, did you call or have a woman call MBNA and
12 report a lost and stolen credit card of Mildred Gerber's?
13 A On what date was that again?
14 Q On or about December 29th, did you have a
15 woman call MBNA and state that Mildred Gerber's credit card
16 was lost and stolen?
17 A Oh, yes, ma'am. On the 29th of December,
18 ~ mom, Mildred Gerber, sat right next to me in the bank at ~
19 PNC, New Cumberland, in front of Miss Jennifer Conway.
20 After mom had discovered that she had some $20,000.00 in
21 credit card charges, oh, yes, most definitely mom asked
22 Miss Conway to stop payment on that credit card so no other
23 additional credit card resources would be evacuated.
24 Q But it wasn't stolen, was it? The card
25 wasn't stolen, was it?
88
1 A Ma'am --
2 Q You were asking --
3 THE COURT: Wait. You are asking --
4 MS. GERBER: Were you asking to --
5 THE COURT: Wait. Stop.
6 MS. GERBER: Okay. I'm sorry.
7 THE COURT: Ask him another question.
8 BY MS. GERBER:
9 Q Were you asking MBNA to close the account or
10 were you telling them that the card was stolen? There is a
11 difference between --
12 THE COURT: It is not relevant. Next
13 question.
14 BY MS. GERBER:
15 Q On January 6th, did you come back up to see
16 Mrs. Gerber at her home?
17 A On January 6th?
18 Q Um-hum. r
19 A I can't say that I did or I didn't. I don't
20 recall.
21 Q On January 6th, did you come back and have
22 Mrs. Gerber hand write out a letter terminating her
23 relationship with Joe Metz?
24 A Did I have mom write it out? Mom in
25 discussion with me voluntarily put in writing words to
89
cancel the services of Joe Metz, specifically because as in
2 the weeks prior, as I have stated before, mom had stated
3 she had never sought the services of Joe Metz. Mom stated
4 she had never asked Joe Metz to come to her house. Mom
5 specifically stated that you were the one that specifically
6 and always made the appointments for Joe Metz to come to
7 the house.
8 Mom specifically stated to me that she had
9 no idea that you added her name to your civil litigation
10 action against me. Mom stated to me she never had any
11 intention of adding her name to civil litigation against
12 me, couldn't recall what that was about. Mom
13 specifically --
14 Q I get the point, Colonel Gerber.
15 THE COURT: Wait. Let him finish the
16 answer. Are you finished?
17 THE WITNESS: Mom specifically stated she
18 did not need the services, never had, never sought them,
19 that you were the driving force to make appointments for
20 Joe Metz. Mom would raise her eyebrows, would get very
21 upset, I don't want Joe Metz, don't know what he's doing,
22 and I don't want him to be my lawyer.
23 BY MS. GERBER:
24 Q And did you help her compose that letter?
25 A I sat down with mom as she composed the
90
1 letter. I did not dictate the letter. Mom prepared it in
2 her own handwriting, as you know initialed the bottom of
3 each sheet.
4 Q So --
5 THE COURT: I know what I need to know about
6 this, and I understand how Joe Metz became her ex-lawyer.
7 Now, move on. It is obvious.
8 BY MS. GERBER:
9 Q However, you are aware that Joe Metz
10 revocated a restraining order and he also --
11 THE COURT: You are way, way off what we are
12 dealing with.
13 BY MS. GERBER:
14 Q It's not in this one because it's carefully
15 cut off, but I will show the Court the exhibit in a moment.
16 On January 7th, did you not from the Pentagon, because it's
17 on the top strip, I will find mine, fax this document that
18 was composed on January 6th to somebody in Pennsylvania,
19 Colonel Gerber?
20 THE COURT: It is just not relevant anymore.
21 You must move on.
22 MS. GERBER: That's January 6th. I'm trying
23 to show you a sequence of events.
24 BY MS. GERBER:
25 Q On January 13th -- on January 12th, by the
91
1 way -- go back. Did Mrs. Gerber actually go into the bank
2 and ask Jennifer Conway to wire the entire assets of her
3 money market fund to pay off her credit card debt because
4 she did not have adequate funds in her checking account?
5 A I can't say what mom did and when she did.
6 I can only state what the record shows that 9,000 --
7 Q You were -- I'm sorry.
8 A Ma'am, if you'll let me finish, I will just
9 tell you. All I can tell you is what the financial records
10 show, that every penny of mom's money market was taken out
11 of her money market account.
12 THE COURT: Next question.
13 BY MS. GERBER:
14 Q So you are not aware how that happened?
15 THE COURT: Next question.
16 BY MS. GERBER:
17 Q On January 13th, Marilyn Gerber exited the
18 house, is that correct?
19 THE COURT: You are not sticking to what I
20 am dealing with. I fully understand the conflict between
21 you and your brother over the management of your mother's
22 money. The question is what happened to it and why.
23 MS. GERBER: I understand that you
24 understand that now, sir. So where do we go --
25 THE COURT: I understood it from day one.
92
1 Move on.
2 MS. GERBER: Well, then we just allow you --
3 then maybe we should just ask you to rule on it then.
4 THE COURT: Well, are you through cross
5 examination?
6 MS. GERBER: No, I'm not.
7 BY MS. GERBER:
8 Q In April -- in late April of 1998, did you
9 receive a message from Jane Gerber regarding an outstanding
10 balance on Mrs. Gerber's credit card to the tune of
11 approximately almost 4,000, you know, 700, $800.00 for
12 dental work?
13 A In '98?
14 Q Yes. Excuse me, 2000, excuse me. Did Jane,
15 your sister, call you and say there is an outstanding bill?
16 A No, I don't recall Jane calling me about any
17 of mom's bill because Jane was not involved in that. I do,
18 however, remember paying the -- I do remember that someone
19 used mom's credit card for $4,300.00 to pay mom's dental
20 bill and then I --
21 Q Why do you say someone, why not Mrs. Gerber?
22 Why didn't Mrs. Gerber use it?
23 THE COURT: Did the dental bill get paid?
24 You said so before.
25 THE WITNESS: Yes, sir.
93
1 THE COURT: Sure. I know that. Move on.
2 BY MS. GERBER:
3 Q Did you write the check out for it, sir?
4 THE COURT: Ma'am, move on.
5 MS. GERBER: The monies that Mrs. Gerber has
6 in her checking account versus the monies in the trust --
7 I'm trying to establish his competency to manage this or
8 even be a co-trustee or guardian on this, Your Honor.
9 BY MS. GERBER:
10 Q In the trust, do you carefully --
11 THE COURT: No, no, no. That is not what we
12 are dealing with. Now we are dealing with whether she is
13 competent.
14 MS. GERBER: That's right. I'll take it
15 back, right, because we were doing this first. Okay.
16 BY MS. GERBER:
17 Q All right. Mrs. Gerber's competency. From
18 January 13th until just recently, is it true that Mrs.
19 Gerber has been removed from her personal physicians, her
20 physical therapist, her medication, and her nutritional
21 therapy prescribed by several physicians, is that true, and
22 has had no contact with her usual and customary medical
23 team? Is that true, Colonel Gerber?
24 A I have been very -- since early January my
25 sister Jane or I have been with mom every waking minute of
94
the day in close consultation with mom. A detailed review
2 of two volumes of her Army health record, I found that
3 mom -- you know, going around the house, I found no
4 prescription medications. I found only vitamins in the
5 house.
6 In reviewing mom's health record and the
7 health records that I have received from the physicians
8 that have seen her, there were no prescription medications
9 prescribed to mom, vitamins only.
10 Q When did you access those medical records of
11 Mrs. Gerber, what date exactly?
12 A I don't have those records with me.
13 THE COURT: Let's get back to your original
14 question. Did she have some doctors that you knew of that
15 she is no longer seeing?
16 THE WITNESS: Yes, sir. There was one. Dr.
17 Richwine was the only one that mom said that she was going
18 to. -~
19 BY MS. GERBER:
20 Q What about her physical therapist? What
21 about her medications that were prescribed?
22 A Ma'am, I've just said there were no
23 prescription medications anywhere in the house.
24 Q What about the chief of medicine at Hershey
25 Med Center and the leading pulmonologist on the East Coast?
95
1 A Well, ma'am, as you know, we have asked you
2 for a list of the 33 medical specialists that have
3 consulted with mom. Ma'am --
4 Q What is the date of that letter --
5 THE COURT: Hold on. Let him finish.
6 MS. GERBER: What is the date of that?
7 THE COURT: Hold on, ma'am. Let him finish.
8 Go ahead.
9 THE WITNESS: Ma'am, as you know, we've
10 asked you to provide a list of the physicians, the
11 consultants, the scheduled medical appointments, and to
12 this date I have not received anything from mom's lawyer.
13 BY MS. GERBER:
14 Q What is the date of that letter, sir?
15 A To this date we have not received any
16 response from you.
17 Q Do you have that letter, sir?
18 THE COURT: What letter?
19 MS. GERBER: That you claim and allege that
20 you asked me to do.
21 THE WITNESS: I would have to consult with
22 mom's lawyer.
23 MS. GERBER: All right. Could we do that?
24 THE COURT: He does not have it in front of
25 him.
96
1 BY MS. GERBER:
2 Q On about what date did you allegedly send
3 this letter to Mrs. Gerber?
4 A Ma'am, I just toId you I don't have that
5 letter. I would have to ask mom's lawyer.
6 Q Ms. Verney did it then?
7 A That's correct.
8 Q Did you ask Mrs. Gerber who her doctors,
9 therapists, medication and nutritional meds were?
10 A Yes, I did.
11 Q Did she not give you the list of all her
12 doctors?
13 A No, she did not.
14 Q Why not?
15 A When asked, she couldn't or wouldn't produce
16 it. But as I said, in roaming around the house with mom,
17 mom recalls no prescription medication. There was not a
18 single prescription medication bottle in that house,
19 medicine cabinet, closet --
20 THE COURT: You have answered. Next
21 question.
22 BY MS. GERBER:
23 Q In 1998, did you have Mrs. Marilyn Gerber
24 restrained from the family house?
25 THE COURT: Way off course. Next question.
97
1 BY MS. GERBER:
2 Q January 13th, 2001, of this year, did you
3 have Marilyn Gerber by a letter of Ms. Verney tell her if
4 she approached Mrs. Gerber and her family home she would be
5 arrested?
6 A Did I have that?
7 Q Did Ms. Verney draw up that letter --
8 A Well, ma'am --
9 Q -- on January 19th?
10 A You must know the answer. Miss Verney drew
11 up a letter on --
12 Q Are you aware of that letter, Colonel
13 Gerber?
14 A Yes, I am.
15 Q What is the ideology of that letter?
16 THE COURT: The ideology of it is not of
17 anything I am interested in. Next question.
18 BY MS. GERBER:
19 Q Is there any current restraining order for
20 Marilyn Gerber?
21 THE COURT: Not necessary.
22 BY MS. GERBER:
23 Q So you really don't know who Mildred
24 Gerber's medical team are, do you?
25 A I have a very good idea after spending
98
1 considerable resources, accessing --
2 Q Would you tell me?
3 THE COURT: Wait a minute. Let him finish.
4 Go ahead.
5 THE WITNESS: Ma'am, to answer your
6 question, I have a very good idea who mom has seen both in
7 consultation. I have written detailed letters requesting
8 copies of those health records, x-ray laboratory slips, and
9 am slowly beginning to build a record as those people send
10 them.
11 Now, I will tell you there are a couple of
12 indications that they have provided you with those health
13 records and --
14 THE COURT: You are beyond the scope of the
15 question. Who are these people that you know of now?
16 THE WITNESS: Smith Radiology, Hershey
17 Medical Center, Dr. Richwine.
18 THE COURT: Next question.
19 BY MS. GERBER:
20 Q Who are her physical therapists?
21 A I can't answer that question. I haven't
22 received those records yet.
23 Q In September of 2000, October of 2000, did
24 you become aware through your uncle, Mr. Paul Flanagan,
25 that Mrs. Gerber was gravely ill?
99
1 A Most definitely not.
2 Q Did your sister, Jane, call Paul Flanagan
3 and discover that Mrs. Gerber was gravely ill?
4 A Not that I recall.
5 Q Are you aware that Jane Gerber called Dr.
6 Richwine in October of 2000 and found out that Mrs. Gerber
7 was gravely ill?
8 A No, I'm not aware of that.
9 Q All right. Jane never shared anything with
10 you about that?
11 A Negative.
12 Q So in September and October, did you make
13 any visits to Mrs. Gerber?
14 A In what months, ma'am.
15 Q In September, October of 2000?
16 A As I have said in previous testimony, I
17 would have to go back. But it was a matter --
18 MS. GERBER: Excuse me, Your Honor. Can he
19 just answer the question?
20 THE COURT: He is saying he does not
21 remember. Next question.
22 BY MS. GERBER:
23 Q On November 9th of 2000, did you happen to
24 remember Mrs. Gerber's birthday?
25 THE COURT: Let's move on. Next question.
100
BY MS. GERBER:
2 Q You have made allegations that Marilyn
3 Gerber has stolen property from --
4 THE COURT: We are going to limit this now
5 to quarter to 12:00. You have used up an hour, and you are
6 asking more and more questions that are not appropriate.
7 Quarter to 12:00 we are going to stop.
8 BY MS. GERBER:
9 Q You have alleged that Miss Marilyn Gerber in
10 the cross examination questions of Mr. Rupp has taken out
11 significant items from Mrs. Gerber's house, is that true?
12 A I added that as a component of my concern
13 that several precious items of belongings to Mildred and
14 Fred Gerber deceased were removed without explanation from
15 the house.
16 Q Are you alleging that Miss Marilyn Gerber
17 stole those items?
18 ~ ' THE COURT: He has not said that. He has
19 just said exactly what he said.
20 MS. GERBER: Fine.
21 BY MS. GERBER:
22 Q Colonel Gerber, have you made a detailed
23 inventory of all of the assets of Mildred Gerber?
24 THE COURT: You are again off base to the
25 issue at hand. Next question.
101
1 BY MS. GERBER:
2 Q Did Mildred Gerber come up to you and
3 express concern about where things were or was it your
4 concern?
5 A Well, as a matter of fact, mom has expressed
6 concern.
7 Q That's fine.
8 A Inability to find jewelry, inability to find
9 her wedding gown, inability, for example, to find her
10 family silver when she tried to place it out for a dinner
11 setting and on and on and on.
12 Q Can you tell me how many years defines or
13 constitutes an antique?
14 THE COURT: No. You are going to be ending
15 your cross examination with another question like that.
16 MS. GERBER: All right.
17 BY MS. GERBER:
1~~ ~Q Did you look for any items yourself in the
19 house, Colonel Gerber?
20 THE COURT: What is the question?
21 BY MS. GERBER:
22 Q Did he look for any of the alleged missing
23 items in the house himself to see if they were not there?
24 A Absolutely, yes.
25 Q Where did you look?
102
1 THE COURT: He has not been able to find
2 them in the house. Next question.
3 BY MS. GERBER:
4 Q Have you located the guns in the house,
5 Colonel Gerber?
6 A No, I haven't.
7 MS. GERBER: I will impugn him, impeach him
8 rather.
9 BY MS. GERBER:
10 Q Is it possible that Mrs. Gerber --
11 MS. GERBER: Can I ask for him to give an
12 opinion, offer an opinion, Your Honor?
13 THE COURT: He is a fact witness.
14 MS. GERBER: You mean no opinions, just
15 facts, is that what you are saying?
16 THE COURT: Ask your question, we'll see.
17 BY MS. GERBER:
18 Q Is it possible -- excuse me. Did Mildred
19 Gerber ever give jewelry to anybody in the family that you
20 are aware of?
21 A I'm not aware of her giving any jewelry to
22 any of the members of the family.
23 Q Could she have given jewelry to Amanda
24 Heflin, her niece -- I mean, her granddaughter, excuse me?
25 A Ma'am, I just stated, I'm not aware of mom
103
1 having given any jewelry to any of the family members. In
2 fact, if you would allow me to answer --
3 THE COURT: Well, you have answered. Next
4 question.
5 BY MS. GERBER:
6 Q Is it possible on that list of alleged items
7 that have been removed from 623 Hilltop Drive that some of
8 those items could have been given to Marilyn Gerber?
9 THE COURT: Anything is possible because he
10 doesn't know where they are. Next question.
11 BY MS. GERBER:
12 Q Do you know whether or not any of those
13 items were given outright to Marilyn Gerber?
14 A I have no knowledge.
15 Q You made a statement in your attorney's
16 presentation that you were concerned that Marilyn Gerber
17 was going to force Mildred Gerber to deed over the house to
18 her. Is that true?
19 THE COURT: That is not what we are dealing
20 with today. Next question.
21 MS. GERBER: He stated that that's an
22 example of incapacitation, sir.
23 THE COURT: Next question.
24 BY MS. GERBER:
25 Q In fact, sir, who does get the house?
104
1 A You know, I honestly can't answer that
2 question. Those details are contained in mom's will. The
3 fact is I have not read mom's will. I have no idea who is
4 going to get the house.
5 Q You were not involved --
6 THE COURT: He just said he did not know.
7 Next question.
8 BY MS. GERBER:
9 Q Did you participate at all in 1999 to the
10 drawing up of Mildred Gerber's --
11 THE COURT: You are beyond the scope of the
12 issue.
13 BY MS. GERBER:
14 Q Is it possible, Colonel Gerber, that you
15 have a self interest in the property of 623 Hilltop Drive
16 yourself?
17 A I have no interest in the property at 623
18 Hilltop Drive.
19 Q Could you explain why you have consistently
20 told Mrs. Gerber that the house is not Marilyn Gerber's?
21 A I'm not sure that I have said to Mildred
22 Gerber that the house is not Mildred Gerber's. Was that
23 your claim?
24 Q Um-hum.
25 A Well, to the best of my recollection, the
105
1 only discussions I've had with who the house belongs to is
2 mom's persistent queries to me of grave concern'that
3 Marilyn tells me that this house is hers.
4 Q And what was your response?
5 A Marilyn tells me that this is her house.
6 Q And what is your response all the time,
7 Colonel Gerber?
8 A My response has consistently been, mom, this
9 house belongs to you. Dad left you this house. It is your
10 house. It's not Marilyn's house.
11 Q Colonel Gerber, are you aware of any
12 codicils to your father's will?
13 THE COURT: Beyond the scope.
14 BY MS. GERBER:
15 Q Would you be so kind to tell this Court what
16 your father's last instructions to the entire family were?
17 THE COURT: No. Next question.
18 BY MS. GERBER:
19 Q Do you have any recollection?
20 THE COURT: Next question.
21 MS. GERBER: If you'll give me a moment,
22 sir.
23 BY MS. GERBER:
24 Q All of the Exhibits 3 through 8 where you
25 itemize these checks, money to Marilyn Gerber, money to
106
Farr, money to the courts,'money to HUVAC, what do you
2 think those were for?
3 THE COURT: That is not related to the
4 issue. He has said where the money apparently went.
5 BY MS. GERBER:
6 Q Are you alleging that Mrs. Gerber is not
7 capacitated enough to decide how she writes checks?
8 THE COURT: He is alleging that she is
9 incapacitated, of course he is.
10 BY MS. GERBER:
11 Q Can you prove --
12 THE COURT: He is seeking a petition to
13 appoint a guardian.
14 MS. GERBER: Fine.
15 BY MS. GERBER:
16 Q Let's cut to the chase. You've made these
17 allegations and you've made a petition. I think the burden
18 of proof is on you.
19 THE COURT: Look, don't discuss burden of
20 proof.
21 BY MS. GERBER:
22 Q Can you prove that? Can you prove --
23 THE COURT: Ma'am. Have a seat. Cross
24 examination is over. What is next?
25 MS. VERNEY: Judge, I have a few.
107
1 THE COURT: You may do so. I'm sorry.
2 CROSS EXAMINATION
3 BY MS. VERNEY:
4 Q Colonel Gerber, the exhibit -- Exhibit No. 3
5 you listed a check to Charles Mackin in the amount of
6 $5,300.00. To your knowledge, has Mr. Mackin ever
7 represented your mother?
8 A Negative.
9 Q And does Charles Mackin represent Marilyn
10 Gerber in the litigation over the trust?
11 A Charles Mackin at this time was representing
12 Marilyn in the criminal trespass charge and harassment,
13 stalking charge against Mildred Gerber.
14 Q The list of checks in exhibit, I think, 3
15 through 8, can I assume there were additional checks that
16 were written from your mother's account?
17 A Yes, ma'am.
18 Q What type of checks were they?
19 A Well, they were for the normal utilities,
20 food market, the normal things that mom had expended.
21 Q So the items then listed in those exhibits
22 were extraordinary in your mom?
23 A These were extraordinary checks.
24 Q Did you ever have the opportunity or did you
25 ever ask your mother about the checks that we have listed
108
1 in these exhibits?
2 A Yes, finally beginning in the month of
3 December. But prior to that time, as I have indicated, the
4 monthly bank statements, all the cancelled checks had
5 disappeared from the home.
6 Q And did your mother know what those items
7 were for?
8 A Mom absolutely could not recall.
9 Q The credit card bills to Circuit City and
10 Victoria Secret and I think record shops, could you find
11 those items that would have been purchased from those
12 locations at your mother's home? Did she have a computer?
13 Did she have a new television?
14 A No, negative.
15 Q You've had the opportunity to be with your
16 mother since early January, you or your sister Jane?
17 A Yeah, of 2001, affirmative.
18 Q And you've had close contact with her?
19 A Close contact.
20 Q You've stayed with her at her home?
21 A Yes, ma'am.
22 Q And have you discussed this guardianship
23 with her?
24 A In detail.
25 Q Can you tell me her reaction to the prospect
109
1 of testifying today?
2 A Terrified.
3 Q And Can you tell me what she's terrified of?
4 MS. GERBER: I object, sir. He's not
5 qualified to make that medical evaluation.
6 THE COURT: He can tell me what his
7 perception is. I mean, if you are going to call her and
8 she is terrified, you are going to put her under that kind
9 of stress. Go ahead. You may answer.
10 THE WITNESS: I can answer?
11 THE COURT: Yes.
12 THE WITNESS: Mom expresses grave concern,
13 becomes nervously agitated that she's going to be grilled
14 and cross-examined by Marilyn or put under the gun,
15 controlled, made to say what Marilyn wants her to do.
16 MS. GERBER: Your Honor, I object because
17 you ordered Mrs. Gerber's presence at 2/21 of last month to
18 be here. It's not my doing.
19 THE COURT: He has answered the question.
20 Next question.
21 MS. VERNEY: That's all I have.
22 MS. GERBER: Could I cross?
23 THE COURT: You may step down.
24 MS. GERBER: Your Honor, I have --
25 THE COURT: No more direct, no more cross.
110
1 Now, what is next?
2 MR. RUPP: Your Honor, we would like to
3 admit Dr. Sabo's curriculum vitae.
4 MS. GERBER: It's already been admitted,
5 Your Honor.
6 THE COURT: Did you mark it as an exhibit?
7 MS. GERBER: It was admitted last month.
8 MR. RUPP: I think we presented it. I don't
9 know if we marked it. I don't see it up here. It will be
10 number 14.
11 THE COURT: It is probably in the file here.
12 But, anyway, is it an exhibit already?
13 MR. RUPP: I have 14 marked, Your Honor. We
14 would also like Dr. Sabo accepted as an expert witness.
15 MS. GERBER: I object, Your Honor.
16 THE COURT: Are you going to call Dr. Sabo?
17 MR. RUPP: We already did. He testified by
-'18 telephone. -
19 THE COURT: Well, I have already heard it.
20 Why are we going over this again?
21 MS. GERBER: I don't know.
22 THE COURT: Please be quiet, ma'am. Why are
23 we doing this again? You have a Sabo curriculum vitae. I
24 have taken his testimony.
25 MR. RUPP: Right.
111
THE COURT: Okay.
2 MR. RUPP: Then we would like to admit as
3 Exhibit 15 the service by the sheriff on Marilyn Gerber.
4 MS. GERBER: For what?
5 THE COURT: Is she available? Is she here?
6 MR. RUPP: Yes, Your Honor.
7 THE COURT: I thought you meant the mother.
8 The mother is here.
9 MR. RUPP: The mother is here.
10 THE COURT: Okay.
11 MR. RUPP: We also have Mildred Gerber who
12 received a citation on February 1. That's Exhibit 17.
13 That's the sheriff's return, and Jane Heflin who's also
14 here and the sheriff's return is Exhibit 16. Since Dr.
15 Sabo testified, we received his psychological evaluation in
16 writing if you would like that admitted.
17 THE COURT: I do not like or dislike
18 ~anything. If you are going to mark it, you move for its
19 admission.
20 MR. RUPP: We would move for its admission
21 as Exhibit No. 18, Your Honor.
22 THE COURT: Admitted.
23 MS. GERBER: I would like to object.
24 THE COURT: Sustained. That is his report.
25 What is relevant is his testimony. So I will not accept
112
1 the report.
2 MS. GERBER: Ail right.
3 MR. RUPP: Your Honor, we would move for
4 admission of our exhibits.
5 THE COURT: Except as indicated, they are
6 admitted.
7 MR. RUPP: We would ask that Colonel Gerber
8 be appointed as co-guardian with PNC Bank, and at this time
9 we would rest.
10 THE COURT: Now, I will take defense
11 testimony -- well, first of all, does Mrs. Gerber wish to
12 present any testimony?
13 MS. VERNEY: No, Your Honor.
14 THE COURT: And you wish to present
15 testimony on whether or not she is or is not incapacitated
16 under Pennsylvania law?
17 MS. GERBER: Yes, sir, I understand. The
18 problem is that I didn't realize that I have the defense --
19 this was, I guess, the plaintiff, so that I have my time I
20 would have understood this cross examination differently.
21 I apologize. So when my turn comes up to offer evidence --
22 THE COURT: Well, your turn is now.
23 MS. GERBER: Right. So I start now?
24 THE COURT: Yes.
25 MS. GERBER: In lieu of the fact, Your
113
Honor, that I am representing myself as attorney pro se, do
2 I sit up there?
3 THE COURT: You want to testify?
4 MS. GERBER: Yes.
5 THE COURT: Come on up.
6 MS. GERBER: Could I do it from here with
7 all of these documents?
8 THE COURT: I will let you do it there.
9 Swear her in.
10 MS. GERBER: One other point --
11 THE COURT: Swear her in.
12 Whereupon,
13 MARILYN GERBER,
14 having been duly sworn, testified as follows:
15 MS. GERBER: Your Honor, I have also
16 approximately 20 witnesses for the defense.
17 THE COURT: Well, you might not have as many
18' anymore because I have quashed a batch of subpoenas.
19 MS. GERBER: I understand that eight or so
20 were quashed yesterday. They were subpoenas. But there is
21 also a motion to compel. Have you ruled on that motion at
22 all?
23 THE COURT: I don't rule on a motion to
24 compel. I am not going to rule on it.
25 MS. GERBER: Not at this time, is that
114
correct, or never?
2 THE COURT: Motion to compel. This is a
3 simple little hearing on a petition for incapacity. I am
4 making no rulings. You can call what witnesses you wish to
5 call.
6 MS. GERBER: Okay.
7 THE COURT: And if you have witnesses here,
8 I want your witnesses called before you testify because I
9 want these people in and out.
10 MS. GERBER: Got it. Could I exit for a
11 moment to find out who's out there, please?
12 THE COURT: Yes. I will recess until five
13 of.
14 (Whereupon, a brief recess was taken.)
15 THE COURT: First witness.
16 MS. GERBER: Your Honor, before I call this
17 witness, I would like to ask you, there is some confusion
18 on my part as to the -- I don't know the word to use -- the
19 sanctity of a witness. The witness has been approached
20 by -- has approached Mr. Rupp for legal --
21 THE COURT: Ma'am, I am not dealing with
22 that. Call your witness.
23 MS. GERBER: The plaintiffs have tainted
24 this witness by putting her with my mother and holding her
25 in a private --
115
1 THE COURT: Are you going to call a witness
2 or not?
3 MS. GERBER: Yes, I am. I would like to
4 call Mrs. Mary Whipple, please.
5 MS. VERNEY: Your Honor, I would ask for an
6 offer of proof, and I also suspect that the subpoena for
7 her is the same as all of the other subpoenas that you have
8 quashed. I haven't seen them, but I suspect it could be
9 quashed on the same basis.
10 THE COURT: Let's make an offer. That means
11 you must tell me who this witness is and what she is called
12 to testify to.
13 MS. GERBER: Mrs. Whipple was hired on the
14 suggestion of a medical social worker in New Cumberland as
15 an excellent companion and caregiver to assist me in the
16 care and the respite relief from my full-time caregiving to
17 Mrs. Gerber. She will show the care she gave to Mrs.
18 Gerber, the monies that I paid her, the monies she took and
19 her status in the Gerber -- taking care of Mrs. Gerber.
20 THE COURT: Well, the issue is not whether
21 Mrs. Gerber was --
22 MS. GERBER: Also the --
23 THE COURT: Listen to me. The issue is not
24 whether Mrs. Gerber was taken care of properly. If you
25 wish to call her to place in what monies she was paid as a
116
result of providing care, that is relevant and I will take
2 that testimony.
3 MS. GERBER: I do. At this time I would
4 like to call Mrs. Mary Whipple, please. Are you saying I
5 can't ask any questions about the kind of care she gave
6 Mrs. Gerber?
7 THE COURT: Just generally.
8 Whereupon,
9 MARY WHIPPLE,
10 having been duly sworn, testified as follows:
11 THE WITNESS: Judge, I have a concern, if I
12 may speak to you for just a moment. After ending my
13 employment with the Gerber family in mid January, I've been
14 harassed on the phone continually, some weeks daily five
15 times a day by Marilyn Gerber.
16 THE COURT: Okay. I understand.
17 THE WITNESS: I am somewhat concerned about
18 being harassed again.
19 THE COURT: You will not be harassed while
20 you are on the witness stand.
21 THE WITNESS: Well, I'm talking about when I
22 get home and also knowing --
23 THE COURT: I understand. But that is not
24 an issue I can deal with today although if brought before
25 me in a proper form I can deal with, but we will let you
117
testify here.
2 THE WITNESS: Thank you.
3 DIRECT EXAMINATION
4 BY MS. GERBER:
5 Q Mrs. Whipple, let's jump into that.
6 THE COURT: Let's ask her, your name, ma'am?
7 THE WITNESS: Mary Whipple.
8 THE COURT: Where do you live?
9 MS. GERBER: Is she going to take an oath,
10 Your Honor?
11 THE COURT: She took an oath.
12 THE WITNESS: My address is in New
13 Cumberland, 321 Carol Street.
14 THE COURT: What is your occupation?
15 THE WITNESS: Part-time aide and home
16 healthcare aide.
17 THE COURT: Go ahead.
18 BY MS. GERBER:
19 Q Mrs. Whipple, what's your traininH as a --
20 THE COURT: No, not relevant.
21 BY MS. GERBER:
22 Q Mrs. Whipple, you just stated that you have
23 been harassed by me.
24 THE COURT: That is not relevant.
25 BY MS. GERBER:
118
1 Q Mrs. Whipple, did you receive a call from me
2 to come and be interviewed as a potential caregiver for my
3 mother, Mildred Gerber?
4 A Yes.
5 Q When was that, please?
6 A December.
7 Q And on whose recommendation did Marilyn
8 Gerber tell you that she was calling you? Who recommended
9 you to Marilyn Gerber?
10 A I believe Barb Martin.
11 Q Who is Barbara Martin?
12 A She works for St. Theresa's Church.
13 Q What is her title there?
14 A Don't know.
15 Q Is she a social worker by any chance?
16 THE COURT: Ma'am, that is just not
17 relevant.
18 BY MS. GERBER:
19 Q Did you come -- what date or month did you
20 come to be interviewed by Marilyn Gerber and Mrs. Mildred
21 Gerber?
22 A What month? December. I don't know if I
23 would call it an interview but we met.
24 Q What does that mean, an interview?
25 THE COURT: Did you provide care to the
119
mother?
2 THE WITNESS: Yes, I did.
3 THE COURT: For what period of time?
4 THE WITNESS: From about mid December to
5 about mid January.
6 THE COURT: Were you paid?
7 THE WITNESS: Yes.
8 THE COURT: How much?
9 THE WITNESS: I was paid -- I worked 40
10 hours, approximately, in December.
11 MS. GERBER: Excuse me, may I ask --
12 THE COURT: I am asking these questions at
13 the moment. Go ahead.
14 THE WITNESS: Approximately 40 hours in
15 December. I charged $10.00 an hour. Marilyn paid me
16 $400.00, and then in January I worked approximately 40
17 hours again, $10.00 an hour, and Fred sent me a check for
18 that $400.00. --
19 THE COURT: And when was the last that you
20 worked?
21 THE WITNESS: About mid January.
22 THE COURT: Go ahead.
23 MS. GERBER: I would like to approach the
24 witness and show her some evidence that she wrote out.
25 THE COURT: What is your offer?
120
1 MS. GERBER: These are notes that Mrs.
2 Whipple wrote out as to the dates, the time, and the monies
3 that were paid by me to her. I would like to know if --
4 THE COURT: She has just told me what she
5 got paid.
6 MS. GERBER: I want to enter them as --
7 THE COURT: No, they are absolutely not
8 necessary. You called her to show that she provided care
9 for your mother and how much money was paid to her, and she
10 has already answered the questions.
11 BY MS. GERBER:
12 Q Can you delineate day by day the $400.00 for
13 what time --
14 THE COURT: It is not relevant, ma'am. It
15 is certainly a reasonable amount to charge under the
16 circumstances.
17 BY MS. GERBER:
18 Q Did Marilyn Gerber ask you to keep an
19 accounting log of the monies she paid you?
20 THE COURT: She has already told me.
21 Anything else?
22 MS. GERBER: Your Honor, my intention to
23 where I'm going to go here is --
24 THE COURT: I have told you what your limit
25 is. That was the basis of the offer.
121
MS. GERBER: Okay. So all you want to know
2 that she was paid, that's it?
3 THE COURT: That was your offer. That is
4 what I have done. That is what you have offered as being
5 relevant, exactly. Are you through?
6 MS. GERBER: I guess you are telling me I'm
7 through, right?
8 THE COURT: Any cross examination?
9 MR. RUPP: No, Your Honor.
10 MS. VERNEY: Your Honor, I have just a
11 couple questions.
12 CROSS EXAMINATION
13 BY MS. VERNEY:
14 Q Ma'am, you are afraid of Marilyn Gerber?
15 A Yes.
16 Q Did you ever witness Marilyn and Mildred
17 together?
18 A Yes.
19 Q Could you characterize how Marilyn treated
20 her mother?
21 THE COURT: That is not relevant. That is
22 not relevant on the issue of whether the mother is
23 incapacitated.
24 MS. VERNEY: Well, Judge it might go --
25 MS. GERBER: I object, Your Honor,
122
MS. VERNEY: -- to the possibility of
2 whether or not she is susceptible to a person of designing
3 interest.
4 MS. GERBER: That's not what we are
5 discussing, Your Honor.
6 THE COURT: That is too collateral.
7 MS. VERNEY: I have no other questions.
8 MS. GERBER: I have a question, Your Honor.
9 THE COURT: No, you are through. You may
10 step down.
11 THE WITNESS: May I leave?
12 THE COURT: You are excused, yes, ma'am.
13 THE WITNESS: Thank you.
14 MS. GERBER: The next witnesses are all
15 telephonic.
16 THE COURT: Is she outside?
17 MS. GERBER: Telephonic.
18 THE COURT: Pardon me?
19 MS. GERBER: On the phone. They are going
20 to testify telephonically.
21 THE COURT: Offer. Who is she? What is
22 your offer?
23 MS. GERBER: Did you quash the Department of
24 Agin~ this morning?
25 THE COURT: I don't know. I quashed so many
123
1 subpoenas I cannot remember which ones, ma'am.
2 MS. GERBER: Well, I didn't receive a
3 notification that you quashed.
4 THE COURT: I will tell you what, we are
5 going to take a break for lunch. You can go back to my
6 secretary, and hopefully she has a record of the ones that
7 I have quashed so that you will know that. We will
8 reconvene at 1:00.
9 MS. GERBER: Thank you.
10 (Whereupon, a lunch recess was taken from
11 12:05 p.m. until 1:00 p.m.)
12 THE COURT: Next witness.
13 MS. GERBER: Your Honor, the next witnesses
14 have agreed to be available telephonically.
15 THE COURT: Who are they?
16 MS. GERBER: They are the following.
17 THE COURT: Who do you want to contact
18 first?
19 MS. GERBER: Okay. I would like to contact
20 a Mr. Jose Dominguez. He is the manager of a physical
21 therapy company that has provided physical therapy for my
22 mother.
23 THE COURT: What is the offer of testimony?
24 MS. GERBER: The offer of testimony is that
25 my mother upon the order of another physician, a
124
podiatrist, Dr. Todd Pelleschi, who is also available, will
2 testify that my mother indeed had been scripted and needed
3 important gait strength training and rehab because of her
4 left hip and her right foot as was diagnosed in October of
5 2000.
6 MR. RUPP: Your Honor, we object on
7 relevance.
8 THE COURT: Wait. You have got to let her
9 put the complete offer in.
10 MS. GERBER: They also will testify that
11 since January 13, 2001, my mother has been essentially held
12 hostage and has not been able to be -- has not been
13 returned to them despite numerous messages I have left on
14 my sister's and my brother's voice mails.
15 THE COURT: Well, that is established. Your
16 brother has indicated that he has not sent her for that
17 type of treatment. That is established.
18 MS. GERBER: So their testimony is going to
19 be that there is grave, you know, ramifications now almost
20 three months without gait training, muscle agility and, you-
21 know, and care.
22 THE COURT: How is that relevant on whether
23 she is incapacitated for the purposes of the appointment of
24 a guardian under Pennsylvania law?
25 MS. GERBER: It leaves her in pain, and it
125
also goes to show that my brother has intimidated her and
2 gone through cruel and unusual measures with which to get
3 guardianship of her.
4 THE COURT: There is an objection?
5 MS. VERNEY: Yes, Your Honor.
6 MR. RUpP: Yes, Your Honor.
7 THE COURT: The objection is sustained.
8 Next witness.
9 MS. GERBER: So we're going to call him or
10 not?
11 THE COURT: No.
12 MS. GERBER: The next one is Mr. Jeffrey
13 Roes of the Charles Schwab Company.
14 THE COURT: Offer.
15 MS. GERBER: Mr. Roes and Mr. Brian Rheam of
16 Charles Schwab --
17 THE COURT: I should preface when I say an
18 offer. Tell me how his testimony will be relevant on
19 whether your mother is currently incapacitated under
20 Pennsylvania law.
21 MS. GERBER: Unfortunately, you know, I'm
22 not an attorney so I don't know what you mean by
23 Pennsylvania law. Mr. Rheam will testify that Mrs. Mildred
24 Gerber and Marilyn Gerber, myself, have had frequent,
25 friendly conversations and investigations as to the assets
126
of my mother and her husband from 1998.
2 Also, Mr. Roes will indicate that we had a
3 friendly discussion and when I presented him with the
4 revocation of the trusteeship and power of attorney, upon
5 which Mr. Roes will also have to testify that he
6 acknowledged assets in Charles Schwab and the concern upon
7 the direction of my mother's attorney, Mr. Joseph Metz,
8 that this document was indeed legal and binding for them to
9 offer, you know, to be aware of the revocation.
10 Mr. Roes will also testify that then when I
11 was in his office that there was considerable time spent in
12 calling headquarters to establish, you know, the procedure
13 because he didn't know how to proceed.
14 Subsequently Mr. Roes will testify that
15 unbeknownst to anybody's understanding of brokerage and
16 banking laws of this country, Miss Gerber's personal
17 account was then terminated against her will and desire.
18 THE COURT: How does this go to whether or
19 not your mother is incapacitated?
20 MS. GERBER: It shows that Mr. Roes will
21 have to testify that upon the fact that his bonus at the
22 end of the year depends on the assets that he garners or
23 controls and that the change of his bank which holds
24 considerable assets would affect him personally, and that
25 they acted hostilely to Miss Marilyn Gerber and Mrs.
127
1 Mildred Gerber by refusing to acknowledge legality of this
2 revocation document.
3 THE COURT: The offer is rejected. It is
4 simply not relevant. Next witness. How many more do you
5 have?
6 MS. GERBER: Not too many more, sir.
7 THE COURT: Okay.
8 MS. GERBER: Miss Barbara Martin, MSW, care
9 and community director for St. Theresa's Church, she will
10 testify to my conversation in asking for help and
11 assistance for companion and caregiver respite care for my
12 mother.
13 THE COURT: I know you already obtained
14 that. That is concurrent.
15 MS. GERBER: All right.
16 THE COURT: So that is your offer on her?
17 MS. GERBER: Yes.
18 THE COURT: The offer is rejected.
19 MS. GERBER: A lot of them were quashed,
20 Your Honor, so then I have to deal with the motion to
21 compel later. There is a nurse, Nurse Gillis -- I'm sorry,
22 she was quashed. I'm sorry. Dr. Todd Pelleschi is a
23 podiatrist.
24 THE COURT: Is who?
25 MS. GERBER: The podiatrist who ordered
128
three times a week the physical therapy including ongoing
2 daily strength and physical therapy training that my mother
3 hasn't done since the 13th of January.
4 THE COURT: Okay. Again, that offer does
5 not go to the issue before me now so it is rejected.
6 MS. GERBER: And then we have several
7 physicians who had access to my mother in 1998. Is that
8 too old, the testimony as to her status limitation?
9 THE COURT: Certainly.
10 MS. GERBER: And the family annex that went
11 on then --
12 THE COURT: Certainly.
13 MS. GERBER: -- that led up to what's really
14 goinH on now. Lastly -- well, there have been a lot
15 quashed at this point now. Then we Ho into a careHiver
16 like Mrs. Whipple, Julie Newman Dixon who actually took
17 care of my mother and received monies from my mother and
18 was hired by my mother for caregiving and will testify to
19 her current capacity as late as January 12th, the day
20 before the 13th.
21 THE COURT: Where is she? Why isn't she
22 here?
23 MS. GERBER: She's takinH care of someone
24 now, and she is available on the telephone.
25 THE COURT: I am not willing to do that.
129
That was not cleared with me ahead of time to do a
2 telephone conference, and I will not do it. Next.
3 MS. GERBER: That's it for now, sir.
4 THE COURT: Do you wish to testify?
5 MS. GERBER: Yes, and my sister Jane Gerber,
6 please, I would like to call her.
7 THE COURT: Okay.
8 MS. GERBER: At this time I would like to
9 call Jane Gerber, please. Can I recall my brother then as
10 a defense witness?
11 THE COURT: No, you are through.
12 MS. GERBER: So, Your Honor, I have -- if a
13 witness is available but only by phone who couldn't come
14 in, I have to clear that with you like the day before?
15 THE COURT: It must be cleared with me,
16 absolutely.
17 MS. GERBER: Okay. And if witnesses are
18 willing to come in willingly, then I understand -- I guess
19 I understand that.
20 THE COURT: You can subpoena a witness and
21 unless I quash it they must appear.
22 MS. GERBER: This was a willing witness,
23 sir.
24 THE COURT: Okay.
25 MS. GERBER: Miss Dixon is willingly
130
available now to testify.
2 THE COURT: Is Jane Gerber here?
3 THE SHERIFF: She's on her way, Your Honor.
4 THE COURT: Bring her on in.
5 MS. GERBER: Your Honor, would you be
6 willing to reconsider if you heard Mrs. Whipple you'll hear
7 Miss Dixon on the phone in lieu of the fact that --
8 THE COURT: I am not willing to take
9 testimony from a witness other than a medical witness on
10 the phone.
11 MS. GERBER: She is a medical witness, sir.
12 THE COURT: What did you tell me she was?
13 MS. GERBER: She is a certified nurses aide,
14 sir.
15 THE COURT: She is not a physician?
16 MS. GERBER: No. She is a certified nurse's
17 aide ordered by the -- prescripted by my mother's primary
18 care physician.
19 THE COURT: I will not take it by phone.
20 MS. GERBER: Okay.
21 THE COURT: Come on up. You will be sworn
22 in.
23 Whereupon,
24 JANE HEFLIN,
25 having been duly sworn, testified as follows:
131
1 DIRECT EXAMINATION
2 BY MS. GERBER:
3 Q Hello, Jane, how are you?
4 THE COURT: Tell me your name and your
5 address.
6 THE WITNESS: My name is Jane Heflin. I
7 live at 270 North Garfield.
8 THE COURT: Spell Heflin, please.
9 THE WITNESS: H-e-f-l-i-n in Lombard,
10 Illinois.
11 THE COURT: Go ahead.
12 BY MS. GERBER:
13 Q Miss Gerber, are you the second daughter to
14 Mildred Gerber?
15 A My name is Mrs. Heflin, and I am the second
16 daughter.
17 Q Are you ordering me to call you Mrs. Heflin?
18 A Yes.
19 Q Are you openly hostile today?
20 THE COURT: Wait. Ask her questions.
21 BY MS. GERBER:
22 Q Mrs. Heflin, do you have any hostile issue
23 with Marilyn Gerber?
24 A Yes, I do.
25 Q Would you like to elaborate them, please.
132
1 THE COURT: No. I remind you again, and I
2 will state this up front with this witness as I have
3 everyone, the issue currently before me is whether or not
4 your mother is currently incapacitated under Pennsylvania
5 law. Keep it to that or your examination will end.
6 BY MS. GERBER:
7 Q Mrs. Heflin, there has been testimony by
8 Colonel Gerber as to monies that he's received or not
9 received from Mrs. Gerber. I am going to ask you similar
10 questions. Just a moment, Your Honor.
11 THE COURT: Just hold with the question. I
12 will be right back.
13 (Whereupon, a brief recess was taken.)
14 BY MS. GERBER:
15 Q I'm sorry, Mrs. Heflin, I'm used to calling
16 you Jane. In fact, I've never called you Mrs. Heflin.
17 THE COURT: You may reask the first question
18 or do you just want to ask another question?
19 MS. GERBER: The first question. Can you go
20 back to the first question?
21 THE COURT: Just ask another question.
22 BY MS. GERBER:
23 Q Mrs. Heflin, when did you become aware of
24 Mrs. Gerber's incapacitation to handle her affairs
25 financially?
133
1 A Are you asking for a date or a year?
2 Q I'm asking you to tell me when you noticed,
3 sir -- I mean, ma'am. The question when usually connotes a
4 time period.
5 A When she become what?
6 Q Incapacitated to manage her affairs. Can
7 you tell me when you noticed that?
8 A Several years there's been a decline.
9 Q Several years?
10 A It's been declining.
11 Q Would you please elaborate what you noticed,
12 please?
13 A My opinion on it?
14 Q Yes.
15 A She's becoming forgetful.
16 Q And when did she start getting forgetful?
17 A Several years.
18 Q Is that '97, '98, '99, 2000, 20017
19 THE COURT: Your best estimate of the time.
20 THE WITNESS: Oh, '98, '99.
21 BY MS. GERBER:
22 Q And what was she becoming forgetful about?
23 A Where she was putting things, what she was
24 doing, who she had talked to.
25 Q Do you recall a conversation with Marilyn
134
1 Gerber, myself, when this was brought up and your answer
2 was I forget things too and I don't know where I put
3 things?
4 A I couldn't say yes or no.
5 Q You don't recall that conversation?
6 A I couldn't say yes or no.
7 Q So she forgot where she was putting things.
8 Do you ever forget where you put things?
9 THE COURT: Look, stay with the person we
10 are dealing with. I forget where I put things.
11 MS. GERBER: I do too, Your Honor.
12 THE COURT: Go ahead. Next question. Move
13 to something relevant.
14 BY MS. GERBER:
15 Q Mrs. Heflin, what else did you notice about
16 Mrs. Gerber in '98, '99?
17 A In reference to what?
18 Q Her incapacitation.
19 A That she had Colonel Fred Gerber, II, take
20 care of her bills for her because it was becoming
21 cumbersome for her to do that.
22 Q You are aware of Mrs. Gerber actually asking
23 Fred Gerber -- stating to Fred Gerber that she could no
24 longer do it?
25 A Yes, that she needed help doing it.
135
Q Are you aware there's testimony from Colonel
2 Gerber stating emphatically --
3 THE COURT: That is not a proper question.
4 Elicit facts.
5 MS. GERBER: Your Honor, the witness is
6 being hostile.
7 THE COURT: So she is hostile. Go ahead.
8 MS. GERBER: Am I allowed to approach her as
9 a hostile witness?
10 THE COURT: Do not walk up to her.
11 MS. GERBER: I didn't mean it that way but,
12 you know -- I'm sorry. I'm not trying to be --
13 THE COURT: Just ask questions.
14 MS. GERBER: She's reluctant.
15 THE COURT: Ma'am, either start asking
16 questions or it is going to end.
17 MS. GERBER: Okay. She's reluctant to
18 answer questions, Your Honor.
19 BY MS. GERBER:
20 Q Can you tell me what else -- other than
21 being forgetful and that you allegedly are saying that she
22 asked Colonel Fred Gerber, II, to take care of her finances
23 because she couldn't do it, what else did you notice that
24 led to her -- to you believing that she's incapacitated?
25 A Generally, knowing my mother for 46 years,
136
1 there are many things that she's doing that leads me to
2 believe that she is not capable of taking care of herself.
3 Q Would you be so kind as to elucidate on
4 them?
5 A To what?
6 Q Elucidate, elaborate, define them, describe
7 them, list them.
8 A Her memory is failing.
9 Q When did that start?
10 A 1998, '99.
11 Q When else?
12 A When else?
13 Q What else, what kind of memory?
14 THE COURT: Memory, I understand what memory
15 is. Next question.
16 BY MS. GERBER:
17 Q What else other than memory? Was it a
18 full-time memory loss, a part-time memory loss, an
19 occasional memory loss?
20 A In conversations with her, yes, from minute
21 to minute to half hour to ten minutes, yes.
22 Q What else?
23 A I am not sure what you're asking me.
24 Q You said there were many things that led you
25 to believe that Mrs. Gerber was incapacitated starting in
137
1 '98, '99.
2 A Her mode of taking care of herself, how she
3 dresses.
4 Q And how was that? Describe that.
5 A Confusing.
6 Q What was confusing about it?
7 A From someone who took impeccable care of how
8 she dressed, to somebody who was confused about putting
9 things together on her body, dressing.
10 Q When did that start?
11 A Most recently six months ago.
12 Q And how did you notice that?
13 A By visually seeing her.
14 Q Tell me in year 2000 how many times you saw
15 Mrs. Gerber?
16 A I can't remember offhand. I don't keep a
17 diary of it, but I'm sure you know what it is.
18 MS. GERBER: Your Honor, I'm having
19 difficulty. Mrs. Heflin has testified with complete
20 accuracy --
21 THE COURT: Ma'am, just ask questions.
22 Whether you agree with her testimony or not is not what is
23 important. You ask questions.
24 MS. GERBER: I would like to impeach her.
25 She's reluctant to state what she knows.
138
1 THE COURT: Ask questions.
2 BY MS. GERBER:
3 Q Why is it that you've waited until 2000 --
4 why is it you've waited until January 12th, 13th of 2001 to
5 essentially move into Mrs. Gerber's house when all along
6 you seem to have indicated that you knew that she was
7 having problems? Why did you wait so long to help Mrs.
8 Gerber?
9 A Can I not answer that question?
10 THE COURT: No, you can answer it. You
11 should answer it. When did you move in?
12 THE WITNESS: I'm not sure what the date is,
13 sir.
14 THE COURT: Was it this year?
15 THE WITNESS: Yes.
16 THE COURT: What prompted you to do so?
17 MS. GERBER: That wasn't the question but go
18 ahead.
19 THE WITNESS: What prompted me to do so is
20 the fact that I knew from conversations with my mother that-
21 she was incredibly stressed, and I came to find out that
22 her funds had been depleted completely from the bank and
23 she was left with $6.00, approximately, in her bank
24 account.
25 THE COURT: Next question.
139
1 BY MS. GERBER:
2 Q Mrs. Heflin, are you aware that Mrs. Gerber
3 has access to over a half million dollars?
4 A No, I'm not aware of that.
5 Q So then it's not -- so it's then you are
6 only surmising by a third party --
7 THE COURT: That is an improper question.
8 She answered the question directly. Ask a new direct
9 question.
10 BY MS. GERBER:
11 Q How did you become aware that she only had
12 $6.00 in her checking account?
13 THE COURT: It is not relevant. Next
14 question.
15 BY MS. GERBER:
16 Q Why did you not do something for Mrs. Gerber
17 in 1998, 1999 if you were so concerned about her change in
18 medication?
19 A Who said I didn't?
20 Q Well, then could you please describe what ~_
21 you did do?
22 A In reference to what?
23 Q What did you do to help Mrs. Gerber if you
24 noticed that there were problems in her taking care of
25 herself physically, her memory, her conversation?
140
THE COURT: That is not proper. The issue
2 now is whether today she is incapacitated, and she has told
3 me she started to fail in '98, '99.
4 MS. GERBER: What I'm leading to, Your
5 Honor, is that Mrs. Heflin was put in care in the
6 custody -- emergency custody granting by you, sir, on
7 January 25th. What I'm moving to show is that Mrs. Heflin
8 is not capable or -- and is enriching herself in the
9 providing no care to Mrs. Gerber and creating more
10 hostility in the situation. I'm trying to impeach her.
11 THE COURT: That does not go to whether or
12 not your mother is incapacitated.
13 MS. GERBER: Okay. Fine.
14 BY MS. GERBER:
15 Q Mrs. Heflin, could you tell me in 1998 did
16 you receive any monies from Mrs. Gerber?
17 A I have no idea.
18 Q Is it possible that in 1998 you received a
19 check written for $6,000.00 to you?
20 A It's possible.
21 Q Is it also possible that Colonel Freddie
22 Gerber gave you $2,536.70 to you?
23 A It's quite possible.
24 Q It is possible. In 1999, do you have any
25 awareness that Mrs. Gerber gave you monies?
141
1 A I'm sure that she did.
2 Q Can you tell me how much?
3 A No, I can't.
4 Q Are you aware -- is it possible that in 1999
5 Mrs. Gerber gave you $2,875.00?
6 A It's possible.
7 Q Did Mrs. Gerber also give you $315.00 for
8 your taxes for 19997
9 A Well, I haven't filed 1999 taxes so I don't
10 know if she could have given them to me.
11 Q You have not filed your 1999 taxes?
12 A No, I haven't.
13 Q Do you have an extension from the IRS?
14 A Yes, I do.
15 Q Is this regarding difficulties with possibly
16 a separation or divorce?
17 THE COURT: No, no, no. Come on.
18 BY MS. GERBER:
19 Q What about -- so is it possible that we
20 could say in 1998 and 1999 you received a total of
21 $8,536.00 from Mrs. Gerber?
22 A That's possible. It might not be possible.
23 Q And another --
24 A I have no way of knowing.
25 Q And another $4,966.75?
142
1 A I have no idea.
2 Q Have you received a copy from Ms. Lindsay
3 Baird of the preliminary check accounting -- check register
4 accounting of a trust that you are a beneficiary of?
5 THE COURT: It is not relevant.
6 MS. GERBER: That Mrs. Gerber is relevant --
7 THE COURT: I am telling you get off this
8 stuff and get to your mother's either capacity or lack of
9 it or it is going to end.
10 BY MS. GERBER:
11 Q What makes you believe that Marilyn Gerber
12 is not -- do you have any belief that Marilyn Gerber is not
13 able to provide guardianship and care of Mrs. Gerber?
14 THE COURT: Not relevant.
15 MS. GERBER: You will probably die if I ask
16 you why don't you ask her some questions because I'm at a
17 loss now, Your Honor. I'm sorry.
18 THE COURT: You are finished?
19 MS. GERBER: I think so.
20 THE COURT: Okay. Cross.
21 MR. RUPP: One question, Your Honor.
22 CROSS EXAMINATION
23 BY MR. RUPP:
24 Q Mrs. Heflin, do you believe on everything
25 you have observed about your mother she needs a guardian of
143
1 the estate to handle her affairs?
2 A Most definitely.
3 MR. RUPP: Thank you.
4 MS. VERNEY: No questions, Your Honor.
5 THE COURT: You may step down. You are
6 excused if you wish to be.
7 THE WITNESS: Thank you.
8 THE COURT: Next witness.
9 MS. GERBER: I guess it's me, Your Honor.
10 THE COURT: Do you have any other witnesses
11 here?
12 MS. GERBER: May I ask Mrs. Verney?
13 THE COURT: That is your mother's attorney.
14 MS. GERBER: Yes.
15 THE COURT: What is your offer?
16 MS. GERBER: I am not even going to come
17 close to attorney/client privilege.
18 THE COURT: Offer.
19 MS. GERBER: I would like to ask her about
20 the scenario and conversations between Fred Gerber, Colonel
21 Fred Gerber, and her in the surprise retention of her as my
22 mother's attorney and any conversations that Mrs. Verney
23 and Colonel Gerber have had regarding the subsequent
24 hostage control and take over of my mother.
25 THE COURT: Not relevant.
144
1 MS. GERBER: Okay.
2 THE COURT: I mean, he has acknowledged that
3 he hired her.
4 MS. GERBER: Mr. Richard Rupp.
5 THE COURT: Okay.
6 MS. GERBER: The offer on that --
7 THE COURT: Is he here?
8 MS. GERBER: Mr. Richard Rupp.
9 THE COURT: You want to call counsel? Don't
10 even talk about it. Next witness.
11 MS. GERBER: It's not for --
12 THE COURT: You are not going to call as a
13 witness in this case counsel for a party.
14 MS. GERBER: Okay. For the record, I would
15 like to state, Your Honor, that the firm of Herbert Rupp
16 and Richard Rupp have well represented my mother, our
17 estates, my brother, the slander suit, it goes on and on.
18 There is severe ethical and disciplinary issues at stake
19 here.
20 THE COURT: Not before me they aren't. Who
21 is your next witness?
22 MS. GERBER: So then that's it. So now it's
23 to me.
24 THE COURT: You may testify from your seat
25 with your records.
145
1 MS. GERBER: Your Honor, do you want to give
2 me a time frame or am I allowed to testify here?
3 THE COURT: Well, as always, I will let you
4 start out with an open-ended frame, but if you get out of
5 line, I will give you a time frame.
6 MS. GERBER: Okay.
7 THE COURT: Have a seat. Tell me your name.
8 Swear her in first.
9 Whereupon,
10 MARILYN JO GERBER,
11 having been duly sworn, testified as follows:
12 BY THE COURT:
13 Q Name and address.
14 A My name is Marilyn Jo Gerber. I live in
15 Pennsylvania at two residences, number one, 623 Hilltop
16 Drive, New Cumberland, and currently, since the 13th of
17 January, at 42 Drexel Place, New Cumberland.
18 Q Mildred Gerber is your mother?
19 A That's correct.
20 Q How many brothers and sisters do you have?
21 A I have a younger brother, Colonel Frederick
22 E. Gerber, II, and I have a younger sister, Jane Noel
23 Gerber Heflin.
24 Q When did you move in with your mother most
25 recently?
146
1 A Most recently?
2 Q Before you left.
3 A Before I left the house?
4 Q Yes.
5 A January of 2001 you mean?
6 Q Yes.
7 A I came into my mother's home full-time for
8 her medical and financial needs on August 19th -- on
9 August -- the first week in August 2000 until January 13th,
10 2001.
11 Q Where were you living before that?
12 A I was living part-time with her from
13 September 1999 until May 3rd, 2000.
14 Q Where were you living otherwise?
15 A Pardon me?
16 Q Where were you living when you were not
17 living with her part-time? Where were you the rest of the
18 time?
19 A I was working and then I would sleep for
20 seven hours at 42 Drexel Place.
21 Q Okay. Now, you oppose the appointment of a
22 guardian period for your mother's estate, is that right?
23 A For fiduciary matters only?
24 Q We are here on a sole petition for the
25 appointment of a guardian of her estate, that's correct.
147
1 A I oppose the appointee of Colonel Freddie
2 Gerber.
3 Q I did not ask you that. First, listen to
4 the question precisely. You have been a protestor here and
5 your brother is seeking -- he is seeking the appointment of
6 a guardian of her estate, and he is seeking a
7 co-appointment as we have heard.
8 I am asking you, are you opposed, standing
9 alone, of the appointment of a fiduciary guardian for the
10 estate of your mother?
11 A As standing alone, yes, I oppose that. What
12 I --
13 Q Wait a minute.
14 A Are you going to ask me --
15 Q I am going to ask you a number of questions,
16 and then I will let you roll along.
17 A Fine. I understand.
18 Q Are you claiming that your mother is not
19 incapacitated under Pennsylvania law?
20 A You'll have to show me the --
21 Q I am not showing you anything. Are you or
22 aren't you?
23 A I do not claim her as totally incapacitated,
24 no. I do not claim that she is totally incapacitated, also
25 per Michael Kane's testifying who is a federal prosecutor.
148
1 Q You may present testimony to me on that
2 issue.
3 A It was already presented last month.
4 Q Your testimony.
5 A Exactly, sorry.
6 Q Go ahead.
7 A Now. Okay. Am I allowed just to give a
8 monologue, sir?
9 Q That is the way I am doing it.
10 A Thank you. Prior to the death of my father
11 in 1998, which was on 2/22/1998, my father, as is customary
12 of people born essentially in the 1913's, 14's, and because
13 of my father's position in the U.S. military, my father was
14 responsible for all of the financial management. This was
15 very customary to many families of this stature. Prior to
16 my mother marrying my father in 1948, she took excellent
17 care of her finances and was responsible for her care.
18 Q When did your f~ber die?
19 a 2/22/1998.
20 Q Go ahead.
21 A In 1995, I noticed some slight memory
22 revelation of conversations from my mother. I would like
23 to state that I am a licensed nurse. I have met several
24 expert specialties.
25 Q A registered nurse?
149
1 A Yes, sir, in many states, several states,
2 including Pennsylvania. Of all of the three children, I
3 have been the closest -- without having to sound
4 egotistical, but in terms of the amount of time present and
5 the amount of time spent in the care of my parents, I have
6 been the eldest -- what someone would describe as the
7 eldest old maid, single nurse, devout Catholic daughter.
8 Q Are you the eldest child?
9 A Yes, sir. My parents used me as their
10 counselor, as their care provider, as their financial
11 advisor throughout my adult life, specifically since 1995.
12 In January of 1996, I came down from New
13 England where I was working. I live bicoastal, Your Honor,
14 and I work and do business on three continents besides from
15 my medical training and expertise.
16 I came down and observed my father's decline
17 cardiovascular. One of my other specialties is I'm an open
~ heart cardiovascular transplant shock~tr~.auma-IUCC ~.
19 specialist since 1986. I met with his doctors, and they
20 told me he had about two to four --
21 Q Look, your father is deceased. I want you
22 to move on to the condition of your mother. That is what
23 is relevant.
24 A In 1997, in April of '97, my father called
25 me because my mother fell in the interest of our family
150
home which is 623 Hilltop Drive. She had fallen and broken
2 her hip.
3 At that time I was director of nursing for
4 home healthcare for six counties in San Francisco with a
5 staff of 80 and where I dealt with adult protective
6 services, guardianships, conservatorships, as we call them
7 in our state, et cetera, et cetera. I would like to
8 acknowledge that California has been my permanent home
9 state since 1974.
10 I got on a plane 12 hours later, packed two
11 bags, resigned my position --
12 Q This is when?
13 A 1997.
14 Q So you came here when your mother broke her
15 hip?
16 A And I spent six months rehabing my mother
17 and providing care to my mother and to my father. At that
18 .... _ time my father's cardiologist, who is well known i~-this
19 area, informed me my father had two to four years to live,
20 and he should not be driving anymore. I begged my brother
21 and sister to spend time with my parents.
22 On the episode of my mother's hip in '97, my
23 brother came for an exact total of two hours.
24 Q Did your mother recover from her broken hip?
25 A She recovered.
151
1 Q Move on.
2 A But with some infirmities to her left hip.
3 Q Physical infirmities?
4 A Yes, sir.
5 Q Move on.
6 A I left in October of '97 briefly and
7 returned Christmas of '97, and what I had done is I set
8 myself up to work per diem at several hospitals in this
9 area.
10 Q You came back in '97. How did you find the
11 condition of your mother?
12 A My mother was struggling emotionally because
13 my aunt had died as well and my father was intimately
14 involved in the care of her. We had lost her in November
15 of '97, and it was a long haul. I also provided care for
16 my aunt in Allegheny County and was involved with 302
17 hearings of my aunt in early '97, was asked by the Court to
18 participate.
19 Q Go ahead.
20 A At Christmas of '97, my siblings were not
21 present.
22 Q Ma'am, let's deal with your mother.
23 A In January of 1998, on January 6th, I
24 witnessed my mother have a TIA. A TIA is a transischemic
25 attack. They are not recordable on x-rays or MRI's. At
152
1 that time I also realized my mother -- usually they have
2 difficulty rebounding like epileptics for anywhere from 3
3 hours to 24 hours memory and be able to process --
4 Q What resulted in your mother's condition
5 as --
6 A It led to my mother being examined by Dr.
7 Michalek and an MRI at the end of January 1998 which my
8 brother alludes to in his testimony. On January 6 -- my
9 mother has her TIA on January 15th. My father wakes me up
10 at 5:00 --
11 Q Ma'am --
12 A I admit my father to Holy Spirit.
13 Q Ma'am, we are going to deal with your
14 mother, not your father.
15 A The result of my father's 38 day siege in
16 the ICU in Harrisburg Hospital, known as Pinnacle now, led
17 to my mother's obvious decline emotionally.
18 Q What period of time frame was this?
19 A That was January 15th to February 22nd,
20 1998. Dr. Michalek --
21 Q What happened after that?
22 A Dr. Michalek confirmed to me that because of
23 the stress and anxiety of her husband dying before her eyes
24 and the approaching --
25 Q Ma'am, you are not answering my questions.
153
What happened after that?
2 A That Mrs. Gerber was suffering stress
3 dementia. The dementia was from the anxiety and stress
4 that was going on in the family and the fact that her
5 husband was in the ICU for 38 days. She recommended at
6 that time that my mother have further examinations and
7 care.
8 Three days prior to my father's death on the
9 22nd, from out of nowhere, I couldn't have predicted this
10 in ten lifetimes or a thousand galaxies, my brother started
11 acting up against me.
12 Q Ma'am, that is not what we are dealing with
13 at this stage of the proceedings.
14 A On the 24th, 25th of February, my brother
15 took executor control of my mother's -- of my father's
16 estate per his will which was not what was stated in the
17 will. I have a copy to submit for exhibit.
18 Q Let me tell you something. If you keep off
19 the track, I am going to stop your testimony. I want you
20 to deal with the issue that I am dealing with at this stage
21 of the proceedings, which I remind you again is the
22 incapacity of your mother, the alleged incapacity.
23 A We will jump to 2000 right now, 2000 and
24 2001.
25 Q Okay.
154
A I understand what you are saying now. My
2 mother is not incapacitated to taking care of her affairs.
3 What my mother needs is assistance, as many people who
4 never had 20 or 30 years of experience to do it on a daily
5 basis.
6 When I came back into my mother's home in
7 September of 1999 and had full-time access with her, my
8 mother was able to write checks. We went shopping. We
9 made purchases. We discussed assets, and she became over a
10 period of September '99 until January -- until November of
11 1998 she had more and more questions of where her money was
12 and what was happening to her money.
13 I received no monies from Mrs. Gerber or my
14 father Colonel Freddie Gerber for any care or anything in
15 1996, '97 or '98 with the exception in March of 1998 my
16 mother gave me $2,000.00, and that was because I was not
17 able to get into the house.
18 Immediately after my father's death, my
19 brother prevented me from entering the family home. All my
20 possessions, my furniture, my suitcases, 93 boxes of my
21 business inventory were in the basement of our family home.
22 When I finally got access to my mother in
23 September of '99, I found a completely different woman.
24 This is a woman who had been left and abandoned
25 essentially, and I have collaborating evidence, if you are
155
willing or able or wish to hear it, sir, from her
2 physicians starting in March of 2000 of this year when I
3 started taking her around to physicians.
4 My mother is not what you would call an
5 organized woman in terms of filing things. I found her
6 dining room table piled to top -- top high and long with
7 the letters. As many old people will say -- as many old
8 ladies, as we testify in conservatorship hearings, she
9 piled them up, slipped them under the table mats, in the
10 bedroom, in her purse, et cetera, et cetera. In 1999, I
11 did nothing to intervene in the care of my mother's
12 finances. Just a second, please.
13 When I came back full-time, I still
14 remained -- left the property in San Francisco, Your Honor.
15 In December of 1999, I started working essentially
16 full-time in several hospitals again as what's called a per
17 diem nurse. I would see my mother every morning, and I
18 would hav~ dinner with her every evening, and ~hen I would
19 walk to my house to sleep so as not to wake her up in odd
20 shift hours.
21 During that time, we went out to dinner. We
22 conversed. She was lucid, and I provided companionship,
23 because what I found in September, December of 1999, a
24 woman who was severely depressed, grieving with no other
25 family, people present to help her, to see her, to visit
156
her, to do anything for her.
2 During the period -- now we're going to go
3 into the year 2000. I continued to work full-time, Your
4 Honor, and starting around Christmas -- I mean, April,
5 Easter of 2000, there was problems with the furnace, and I
6 would take care of it. I found the garden mismanaged,
7 weeds everywhere, nothing was done.
8 I was aware that my mother was a recipient
9 of over a million -- I mean, half a million dollars, and
10 Colonel Freddie Gerber testified, I have it for an exhibit,
11 in a trial last year that there were assets of $900,000.00.
12 He testified to this in September of 1999, of which my
13 mother had access to, essentially could vacate all of the
14 trust for her primary care and needs before any of us
15 touched it including all of the last dimes and nickels of
16 principal.
17 I would like to also state, Your Honor, that
18 in my education I hold an MBA in international business
19 manufacturing and management as well as corporate culture
20 and healthcare management and medical education and
21 training.
22 I also have --
23 Q Do you have anymore testimony as to the
24 capacity of your mother at the current time?
25 A Okay, yes. I worked with my mother
157
1 assiduously to organize her financial affairs because my
2 brother never came up. In September of 1999, he wasn't
3 even aware I was with my mother. In October, he wasn't
4 aware. In November, he wasn't aware. He never showed up.
5 In December, he never showed up. In 2000, he never showed
6 up. Occasionally he came.
7 Colonel Gerber refers to a check to Chuck
8 Mackin for $5,300.00. I would like to use this as an
9 example of fiduciary mismanagement. That check was written
10 by my mother because that money was to pay for a trial
11 attorney. It was a balance of the attorney of a trial of
12 which I was involved in, and it was sent by check from my
13 trust fund as I'm a beneficiary to my mother.
14 Why he sent her the check and not to me, we
15 don't know. He has never rectified his financial
16 accounting books to reflect that my mother did, in fact,
17 never did really pay the 5,300. In fact, he should have
18 reimburse~ her, and I am here ~o show you pages after pages
19 of days and days I've spent trying to rectify essentially
20 doing --
21 Q So you are saying the $5,000.00 Mackin fee
22 was really your money not your mother's?
23 A That's right. He sent a check for $7,000.00
24 Federal Airborne, next day air, something, next day air, to
25 my mother which she was to give to me. Why? My brother
158
refuses, absolutely categorically refuses to give me any
2 more than he absolutely is ordered to from my trust fund,
3 and that has been consistent since February of 1998. That
4 is why we have co-plaintiff actions in the court with Joe
5 Metz and Michael Kane to demand fiduciary accounting.
6 To cut to the chase, I would say that as of
7 today for three years there has been no fiduciary
8 accounting on one trust fund, on one checking account, on
9 one spreadsheet, on anybody's money in the Gerber family.
10 Q You are telling me there is a suit pending
11 to resolve that?
12 A That's correct.
13 Q Continue on regarding your mother.
14 A So we're in the middle of 2000. What did my
15 mother do? My mother -- the state that I found my mother
16 is she was eating Top Ramen noodles, pressed chicken meat
17 and bananas and ice cream. That was her nutritional status
18 in late '99
19 That is not unusual, sir, for people who are
20 depressed, grieving, widows and have essentially been
21 abandoned by family members. Understand that I was
22 restrained from her by my brother essentially actually
23 before your chambers on December 28th, '98, allegedly when
24 I was out in California bothering nobody, asking for
25 nothing.
159
1 Q Let's get back to your mother.
2 A Okay. What I did then is my mother and I
3 went out. She lived a life like she lived before. We went
4 out to restaurants. We went -- and not high fancy
5 restaurants, but the diner where we had become close from
6 this family that now has a diner in New Cumberland.
7 We went and took drives. We went to church
8 every Sunday. My mother and I are both the only two
9 practicing Catholics in our family. We visited people.
10 She became alive, and she knew that every night and every
11 day she had someone there.
12 We worked in the garden together. We took
13 drives together. We chatted, and my mother and I recouped
14 the tragedy that occurred from the trial of '99 and the
15 events that happened in '98 when my brother restrained me
16 from the house.
17 In December -- in 2000 in March, my
18 mother -- I took my -- started taking my mother to all the
19 doctors from head and toe, to a specialist. Why? When
20 the --
21 Q I can understand why you took your mother to
22 the doctors. Tell me how her condition was.
23 A Because she had to go to the ear doctor and
24 have her ear wax evacuated because that affects gait and
25 agility and the ability to hear, which means that she may
160
1 not have a memory problem, Your Honor. She may have a
2 problem that's inner ear canal and that's ongoing.
3 Two, I took her to the eye doctor. I took
4 her to Carlisle Army Barracks. She had growths on her
5 skin. She had growths on her skin. One was precancerous.
6 It had to be removed.
7 Q How was her mental condition during this
8 time?
9 A She was fine. She was becoming happy. She
10 was coming out of her grieving. She had someone to
11 dialogue with. I found her totally enclosed and encased.
12 Q How did you find her mental condition at the
13 time you were removed from the home?
14 A She was what we would call -- in 19987
15 Q No. No. No. Most recently.
16 A When I was most recently --
17 Q As of the last time you lived with her in
18- her houseb~fore~this situation changed, how did you find
19 her mental condition?
20 A I found her mental condition -- I would say
21 that my mother and her memory was slightly advancing and
22 short-term memory which resolved itself in a day. She was
23 totally cognizant of all past events, events two days
24 before, a week before.
25 She was able to converse. She was able to
161
recall people's names. She made her wishes known. She
2 could dress herself. She could bathe herself. She needed
3 some assistance. Also she was aware -- also my mother
4 granted me power of attorney.
5 My mother also granted me a credit card, an
6 MBNA. Why? Most specifically in September of 2000, Your
7 Honor, after taking her to all of the doctors, et cetera,
8 et cetera, my mother started complaining of coughing and
9 she was bringing up phlegm.
10 My mother always brought up phlegm. It's
11 not unusual for people that do create this, but this time
12 there was blood in her phlegm, and I immediately took her
13 to a physician.
14 To summarize, the long and short of it,
15 that's when we got just 30 odd specialists, physical
16 therapists, a cardiologist, oncologist, biopsy radiologist,
17 pulmonologist, et cetera, et cetera, the best that I could
18 find for her .... ~ ...........
19 Primary care physicians because why? She
20 had an x-ray in March of 2000 at Carlisle Army Clinic.
21 Guess what? They never followed up on the x-ray, and my
22 mother was found to have possibly reoccurring active TB, sc
23 much for the army clinic.
24 I didn't discover this until I pulled x-rays
25 and pulled medical reports and took her around in
162
1 September, late September of 2000. The diagnosis on my
2 mother in the end of September 2000, my mother lost
3 dramatic weight. She was lethargic. She was in pain, and
4 they told me that my mother would be dead by Thanksgiving
5 of 2000.
6 Now, there's no one to say, Your Honor, that
7 from May 3rd until the first week in August of 2000 I
8 stepped away to California originally only for three and a
9 half weeks. I had a roommate that was --
10 Q You were away.
11 A I was away. I had to go back for three and
12 a half weeks. Unfortunately the day I was to come back I
13 was in a grave and serious automobile accident. I was
14 taken by an ambulance, taken out in a C-board, neck collar,
15 and sustained substantial injuries for which I am now still
16 fully disabled and recovering from, and I could not come
17 back to her.
18 ......... For the three months of May, June, J~uly, and
19 the first week in August of 2000, I called my mother every
20 morning and every night.
21 Q Did you find her to have adequate medical
22 faculties?
23 A Yes. And I left her with vitamins, her
24 doctors, her lists and to arrange for her to see her
25 doctors. The end of July of 2000, my mother calls me in
163
1 agony. I know my mother. We look very much alike. We
2 have many of the same --
3 Q Tell me what she said.
4 A And I know her from the tip of her head --
5 Q Tell me what she said.
6 A She was in agony. I said, mother, what's
7 wrong? She said, I have so much pain in my right foot and
8 my leg. I said, what's wrong? I said, Mother, I'll get
9 there as soon as I could. I remember --
10 Q Did she get treated for this problem?
11 A She got treated the following --
12 Q What was it?
13 A She told me my brother came --
14 Q What was it?
15 A She got mistreated and misdiagnosed.
16 Q What was the problem?
17 A My mother had shingles.
18 Q Was she ultimately treated for it?
19 A Yes, by me.
20 Q Anything else regarding your mother's
21 competence?
22 A Yes. At the end of July of 2000, my brother
23 came in and my mother declared to my brother, Colonel
24 Freddie Gerber, II, and his wife that she was in agony. He
25 did not take her to the emergency room, and he gave her --
164
allegedly my mother reports -- a bottle of Excedrin from
2 his wife and he left.
3 On Monday of that weekend, we are into the
4 31st of July, which is why I subpoenaed the nurse
5 practitioner at Holy Spirit Hospital, my mother was in
6 agony and calls him screaming, and he has her taken by taxi
7 to the emergency room at Holy Spirit.
8 The nurse practitioner misdiagnosed her,
9 tells her she has low back pain, gives her a sample of
10 Celebrex and sends her home. She calls me and she's
11 screaming in agony. I said, mother --
12 Q Tell me how she ultimately got treated for
13 this?
14 A I came back. It took four days to get back
15 because of the United problem. I found her. I diagnosed
16 her with shingles. I took her to a physician, and I
17 injected her subcutaneously with a special vaccine for
18 shingles. You have a two week period to stay shingles,
19 night and day for three days.
20 Q When was the last time you have seen her or
21 talked to her?
22 A The last time I saw her in her home was
23 January 13th of 2001.
24 Q What did you find her condition to be at
25 that time?
165
A She was fine but she was agitated. I
2 couldn't figure out why she was agitated and what --
3 because we had discovered that my brother had come in and
4 revocated the document and closed her checking account, and
5 my mother and I went down to the PNC Bank because I had POA
6 and was writing bills for my mother.
7 Q You found her agitated, right?
8 A Right.
9 Q You feel she was still competent?
10 A Yes.
11 Q When is the last time you have talked to
12 her?
13 A I have been prevented from talking to my
14 mother. There is no --
15 Q I did not ask you that. When is the last
16 time you talked to her?
17 A Talked to her in terms of conversation,
18 January 13th. That day is Saturday.
19 Q And that is the last day?
20 A Yes. But I have seen her twice, and there
21 have been huge incidents, one involving the police in
22 February and most recently last Sunday.
23 Q Anything else you wish to tell me regarding
24 current mental state?
25 A Yes. My mother totally and legally got on
166
the phone to MNBA when she was seriously ill and --
2 Q When are you talking about?
3 A That was in October of 2000. She authorized
4 them to have a credit card. Why? I could not drag my
5 mother who was in bed, was having biopsies, who was seeing
6 a pulmonologist and we were -- I'm not sure that she had
7 small cell cancer CA in her lungs or throughout -- she was
8 diagnosed with left lung tumors by the way -- and
9 nutrifying her, and it was an 18 hour a day, 7 day a week
10 event.
11 Q Why did she get the credit card?
12 A She got it so that I could go out and
13 purchase food and medicine and miscellaneous things that
14 were necessary for the house.
15 Q Did you do that?
16 A Yes.
17 Q Okay.
18 ..... A And I charged her credit cards. The-money ....
19 that -- I would like to state that the day after my injury
20 in San Francisco my mother went down to the bank to
21 Jennifer Conway and the other ladies there, that I tried to
22 subpoena which you quashed, which is fine, and she wired me
23 money. She wired me money every month for my care as I was
24 totally disabled.
25 Q How much?
167
1 A Some months it was 3,000. Some months it
2 was $1,000.00. Some months it was $2,000.00, and she wired
3 me June, July and August and through September into
4 January. My mother provided --
5 Q All this time you were in San Francisco?
6 A I was for three months, June, July -- I was
7 only May -- I was only incapacitated from my accident from
8 June 1 in San Francisco to the first week in August, and I
9 returned home --
10 Q During the period of time you were in San
11 Francisco, how much did your mother wire you?
12 A She wired me $3,000.00 in June the day after
13 my accident. She wired me $4,000.00 in July and another --
14 I would have -- approximately $3,000.00 in August.
15 Q Did you then come back?
16 A Then I came home for treatment because there
17 was no way that I could take care of myself by myself in
18 San Francisco. ~My mother was in agony-and screaming and
19 yelling, and I knew she needed help.
20 The condition I -- how did I find my mother?
21 When I returned, I found my mother walking around in agony,
22 not a stitch of food in the refrigerator, and what little
23 bit of lettuce and milk was totally frozen in the
24 refrigerator. My brother had just been there four days
25 before. I said that's it, that's it.
168
1 Q So you stayed?
2 A And I stayed. And I arrived in the first
3 week in August. I injected her for three to four days
4 around-the-clock subcutaneously, and I never left that
5 house. I never spent a day in my home four doors down the
6 street.
7 THE COURT: Ma'am, come on up to the witness
8 stand now. Cross-examine.
9 MR. RUPP: Thank you, Your Honor.
10 THE WITNESS: Are you saying I'm finished?
11 THE COURT: Yes.
12 THE WITNESS: Because I have things to
13 submit.
14 THE COURT: What?
15 THE WITNESS: I have all of the checking
16 documents.
17 THE COURT: Do you have everything marked?
18 -- ~ ~ THE WITNESS: Not yet, sir. I'm-sorry.
19 THE COURT: Have a seat.
20 CROSS EXAMINATION
21 BY MR. RUPP:
22 Q Miss Gerber, you heard Dr. Sabo has
23 diagnosed your mother as having dementia of the Alzheimer's
24 type and therefore needs help with her financial affairs.
25 Are you in agreement with that or not?
169
A I'm in disagreement. In fact, I'm looking
2 at it right here, and I would respond as a clinical
3 geriatric specialist and as one who has taken care of my
4 mother since --
5 MS. VERNEY: Your Honor, I would object as
6 to her being qualified as an expert to testify.
7 THE COURT: I did not qualify her as an
8 expert, but she can tell me what her background is. Answer
9 the question, ma'am. You disagree and?
10 THE WITNESS: I'm an acknowledged geriatric
11 expert in Pennsylvania and California.
12 THE COURT: Hold on. You disagree, right?
13 You answered the question. Next question.
14 THE WITNESS: I disagree with this.
15 THE COURT: Hold on. Next question.
16 THE WITNESS: I'm sorry.
17 MR. RUPP: May I approach the witness to
18 show her this?
19 THE COURT: What are you going to show her?
20 MR. RUPP: It is a document that she filed
21 with the Orphans' Court before Judge Hoffer in '98 to try
22 to remove Fred Gerber as executor of his father's estate.
23 THE COURT: What is the relevance?
24 MR. RUPP: The relevance is that she made
25 statements in her petition -- Your Honor, this is before
170
the court in Judge Hoffer. Fred Gerber, II, has
2 consistently been in denial as well as his sister Jane as
3 to the progressive decline of health and mental capacity of
4 Mildred Jane Gerber.
5 THE COURT: You may show her that.
6 THE WITNESS: I remember this very well.
7 THE COURT: Wait. He has not asked you a
8 question.
9 THE WITNESS: Sorry.
10 BY MR. RUPP:
11 Q Can you tell the Court what this is?
12 A That's the document where I submitted for
13 revocation of my brother as executor.
14 Q And in that document --
15 THE COURT: Just move back to the
16 microphone, ma'am. Question.
17 BY MR. RUPP:
18 Q Paragraph 14, did you say that --
19 A I have to read it, sir.
20 THE COURT: Wait.
21 BY MR. RUPP:
22 Q Paragraph 14 at the top.
23 THE COURT: Read it to yourself.
24 THE WITNESS: In addition --
25 THE COURT: Wait. Read it to yourself.
171
1 THE WITNESS: I'm sorry. Okay, I've read
2 it.
3 THE COURT: Question.
4 BY MR. RUPP:
5 Q Does it state in your document that Fred and
6 Jane did not observe a decline in the mental and health of
7 your mother?
8 A I will have to qualify what that means. I'm
9 not going to answer yes or no.
10 Q I would just like a yes or no.
11 THE COURT: It is such a simple question.
12 Is that what it states?
13 THE WITNESS: Yes.
14 THE COURT: Next question.
15 THE WITNESS: Your Honor --
16 THE COURT: He is asking you questions.
17 Rules are tough.
18 THE WITNESS: Yeah, they are.
19 THE COURT: Just keep answering the
20 questions.
21 THE WITNESS: You allowed my brother to go
22 on and on.
23 THE COURT: You will be able to further
24 present testimony.
25 THE WITNESS: Okay.
172
1 MR. RUPP: Your Honor, I would like to show
2 her another document which she wrote.
3 THE COURT: Okay.
4 BY MR. RUPP:
5 Q Miss Gerber, can you tell the Court what
6 that is?
7 A I would like you to identify that document
8 to the Judge.
9 THE COURT: He is asking you can you --
10 THE WITNESS: You don't want to know the
11 relevance of this document?
12 THE COURT: Ma'am, he asked you such a
13 simple question. Can you tell him what that is?
14 THE WITNESS: Yes.
15 THE COURT: What is it?
16 THE WITNESS: This is a letter to my
17 brother's commanding officer.
18 BY MR. RUPP:
19 Q What date is that?
20 A It is December 17th, 1998.
21 Q The top of the second page, would you read
22 the first sentence, please.
23 THE COURT: To herself?
24 MR. RUPP: Out loud, please.
25 THE WITNESS: It's actually a letter to the
173
1 U.S. Army Surgeon General. Go ahead.
2 BY MR. RUPP:
3 Q Would you read the first sentence.
4 A My mother is in the early stages of
5 dementia, and my father and I as well and several of her
6 friends who are colonels' wives from the New Cumberland
7 Wives Club are very clear of her physical and declining
8 mental condition.
9 THE COURT: What is the date on that?
10 MR. RUPP: December '98, Your Honor.
11 BY MR. RUPP:
12 Q Miss Gerber, you said you lived at 623
13 Hilltop?
14 A That's correct.
15 Q You don't still live there, do you?
16 A I am being -- I'm under a threat of being
17 arrested. I am not able to access my bedroom or the family
18 home where I live with my mother.
19 Q Actually you live in San Francisco, don't
20 you?
21 A I live bicoastally, Your Honor -- I mean,
22 sir.
23 THE COURT: Bicoastal, what does that mean,
24 one coast to another coast?
25 THE WITNESS: Yes, simultaneously. Actually
174
1 I live in --
2 THE COURT: This is a coast, Pennsylvania?
3 THE WITNESS: Well --
4 THE COURT: I know what you mean.
5 THE WITNESS: I actually --
6 THE COURT: Hold on. Next question.
7 THE WITNESS: Your Honor --
8 THE COURT: Hold on. I do not care where
9 she is. Move on.
10 BY MR. RUPP:
11 Q Miss Gerber, it's not your mother who's
12 concerned about her money, you are concerned about your
13 mother's money, isn't that correct?
14 A I don't understand the question.
15 Q Have you made a request to Fred Gerber for a
16 loan of $50,000.00 through your attorney?
17 A From my beneficiary trust fund, yes, I have.
18 My attorney also has made numerous requests since 1998. We
19 have made numerous, numerous, numerous requests for money
20 from my trust which I am a full bona fide beneficiary.
21 MR. RUPP: No further questions, Your Honor.
22 THE COURT: Ms. Verney.
23 CROSS EXAMINATION
24 BY MS. VERNEY:
25 Q Miss Gerber, can you tell me the last job
175
1 you held?
2 A Yes, I was a nurse.
3 Q Where?
4 A Where?
5 Q Yes.
6 A At Stanford University.
7 Q What period of time?
8 A From December of 1998 until June 1 --
9 actually I worked that day -- 2000. In between that I
10 worked also, yes, right, and then I worked at hospitals in
11 Pennsylvania.
12 Q You've had no income since June 1st of 2000?
13 A That's correct, I'm fully disabled.
14 Q Do you receive disability income from any
15 source?
16 A No, I do not. There is no disability in the
17 State of Pennsylvania, and I am not receiving disability
18 from California because I have been in Pennsylvania since
19 August of 2000.
20 Q So since June 1st of 2000, you've had no
21 source of income?
22 A I'm fully disabled, Ms. Verney, you cannot
23 get income.
24 Q Just answer the question.
25 A I've had no income.
176
1 Q Do you receive income -- okay. So your
2 living expenses -- where have you been obtaining money to
3 pay your living expenses?
4 A I was granted a loan.
5 Q From whom?
6 A From Mildred Gerber.
7 Q And how much was that loan?
8 A It was a loan against the monthly amount she
9 gave me to be repaid upon third party payment of a full
10 liability acknowledgment from my injury.
11 THE COURT: The only trouble was the
12 question was how much?
13 THE WITNESS: It's approximately $23,000.00.
14 BY MS. VERNEY:
15 Q And is there a document evidencing that
16 loan, a written document evidencing that loan?
17 A No, it was a verbal agreement between my
18 mother and I subsequently witnessed by Mr. Joseph Metz.
19 Q Mr. Metz witnessed the verbal agreement?
20 A Um-hum.
21 Q And how did Mrs. Gerber pay you this
22 $23,000.00?
23 A The day after my accident on June 1, she
24 wired me money, and each month she wired me money because
25 she knew that without money I couldn't pay my rent, my
177
1 mortgage, any of my bills. She knew that I was destitute.
2 Q You rent the property in San Francisco?
3 A That's correct.
4 Q And you continue to rent that property?
5 A Yes, ma'am. I haven't fully -- it's being
6 rented now. It's sublet by my two roommates.
7 Q Do you receive any money from that?
8 A No. I'm not allowed to because they are
9 roommates under the rent clauses in San Francisco County.
10 I don't make any money off the rent if that's what you are
11 asking.
12 Q What was the date of this verbal loan?
13 A June 2nd, 2000.
14 Q June 2nd of 2000 your mother agreed to loan
15 you $23,000.00?
16 A No, not -- she agreed to help me out during
17 my disability period.
18 Q And who determines the amount of those
19 monthly payments?
20 A My mother asked me what I would need, and I
21 told her what I would need. I didn't even take the full
22 amount that I needed. I made up the balance with credit
23 cards, any unsecured loans, anything that I could liquidate
24 that I had. I liquidated all my -- let me just say that I
25 liquidated all of my personal assets, everything, and then
178
1 my mother helped me.
2 Q You testified that in June you received
3 $3,000.00 from your mother?
4 A That's correct.
5 Q In July 4,000?
6 A Correct.
7 Q In August 3,000?
8 A Right.
9 Q What were the other months amounts?
10 A Each month -- I don't have them memorized,
11 but they would be 2000, a thousand, 4,000. And often when
12 my mother gave me money when I was living with her from
13 August on, I used the money she loaned me to pay bills.
14 When my mother became seriously ill the end
15 of September, I used my own money when she gave me the loan
16 money to buy her meds, to feed and do things which is why
17 ultimately in October of 2000 my mother issued me a credit
18 card so I could go out and do things for her and secure
19 what we needed.
20 Q The property at Drexel Place -- -
21 A Yes.
22 Q -- how do you own -- do you own that?
23 A Yes, I do.
24 Q You have a mortgage on that?
25 A Yes, I do.
179
1 Q How much is your monthly mortgage?
2 A Approximately $606.00.
3 Q Are you current with that payment?
4 A Yes.
5 Q When was the last time you received money
6 from your mother?
7 A On the day of the 13th of January, the last
8 day I saw my mother, my mother asked me to leave the
9 weekend so that my brother and sister could come in because
10 we've had a long adversarial relationship, my siblings and
11 I.
12 THE COURT: Is that the last day you
13 received money from her?
14 THE WITNESS: Yes, she gave me money.
15 BY MS. VERNEY:
16 Q And at that time did your mother indicate to
17 you that that was going to be the last payment she was
18 going to give to you?
19 A No. She gave me a hundred dollars. She
20 said, here, you go and use this money for restaurants, and
21 she said they are only going to be here for the weekend an~
22 then, you know, I'll see you on Monday.
23 Q I believe you testified that you've taken
24 your mother to 30 specialists?
25 A Um-hum.
180
1 Q Doctors?
2 A Approximately specialists. That doesn't
3 mean doctors. That means specialists, lab techs,
4 laboratory people, physical therapists, physical techs,
5 nurses, oncologists, et cetera, et cetera.
6 Q How have they been paid?
7 A They are paid -- my mother pays them, and
8 they are paid through Medicare and secondary AARP
9 insurance.
10 Q Now, while you were living with your mother,
11 did you remove items from her home?
12 A Which items are we talking about?
13 Q Well, did you take a box of personal letters
14 from your father that he had written to your mother?
15 A Not that I'm aware of, no.
16 Q They were in her closet.
17 A You'll have to identify them, ma'am.
18 Q Well, I'm identifying them as a box of
19 personal letters from Fred E. Gerber, deceased, to Mildred
20 J. Gerber taken from her personal closet. --
21 A I'm not aware of it. My mother has letters
22 from my father all over the house from the top to the
23 bottom to the basement.
24 THE COURT: You are saying you did not take
25 any?
181
1 THE WITNESS: I'm not aware of taking any.
2 THE COURT: I am not aware is not what she
3 is asking you. Did you or did you not take them?
4 THE WITNESS: I'm not sure.
5 BY MS. VERNEY:
6 Q Well, could you have?
7 A The only way I could have taken anything is
8 that --
9 THE COURT: The letters we are talking
10 about.
11 THE WITNESS: Yes, the letters, right. The
12 only way I could have taken anything was in July -- I'll
13 have to look at the receipt. There was a flood in our
14 house, and because of the evasiveness of the flood, I had
15 to rent a truck and remove over 90 boxes to dry them out
16 and keep them safe because there was no more surface space
17 to put anything to dry. I did not examine every box that I
18 took out. So they are stacked floor to ceiling, and I'm
19 not aware if I have -- what these alleged letters are.
20 BY MS. VERNEY:
21 Q So 90 boxes of your mother's personal
22 belongings --
23 A And my belongings as well.
24 Q Where are they stored?
25 A They are stored in my home.
182
1 Q Did you ever take motion picture film that
2 was 8 millimeter? They were in tins in the closet.
3 A Those were given to me by my mother.
4 Q Can you tell me when?
5 A This summer. They were prior given to me by
6 my father on January 15th of '98.
7 Q How about photographs of the Berger/Flanagan
8 family members?
9 A I don't know a Berger family.
10 Q Gerber.
11 A Photographs, I have photographs that were
12 given to me by my mom and my father all through my life.
13 Q You didn't take any of them from your
14 mother's home?
15 A Absolutely not.
16 Q Are they possibly in these 90 boxes?
17 A All of the things I have were given to me.
18 THE COURT: Are they possibly in the 90
19 boxes?
20 THE WITNESS: She's going to have to
21 identify which photographs.
22 THE COURT: No, no.
23 THE WITNESS: What photographs is she
24 talking about?
25 THE COURT: Do you know whether or not any
183
of the photographs are in the 90 boxes?
2 THE WITNESS: I don't know of any. It's
3 possible.
4 THE COURT: Are some of these boxes boxes
5 that you acknowledge are still your mother's things or did
6 she give you all this stuff?
7 THE WITNESS: The ones I just said that my
8 mom gave me or my dad gave me they are mine. They were
9 given to me.
10 THE COURT: Let's go back. Forget the
11 pictures for a minute. The 90 boxes you have, some of it
12 is yours, some of it is your mother's.
13 THE WITNESS: Right.
14 THE COURT: Did she give you what is hers or
15 is that hers?
16 THE WITNESS: No. The things that I removed
17 from my mother's.home I took down to dry them out and left
18 in my mother's home. There was no issue. My mother, my
19 house, her house, it's the same.
20 THE COURT: You do not have them anymore? ~-
21 THE WITNESS: What?
22 THE COURT: Where are the 90 boxes?
23 THE WITNESS: They are in my house, Your
24 Honor.
25 THE COURT: Are any of the things that you
184
1 have in your house actually your mother's?
2 THE WITNESS: There is possibly some things
3 of my mother's, yes.
4 BY MS. VERNEY:
5 Q Well, you said you moved them in July. Is
6 there any reason you didn't return them before you left in
7 January of 2000?
8 A Yes. My mother became gravely ill in
9 September and October. She was supposed to be dead by
10 November. I was recuperating. It wasn't a priority. She
11 was supposed to be dead by Thanksgiving.
12 I was taking care of her 18 hours a day, 7
13 days a week. It wasn't a priority. My mother and I had no
14 issues on where this stuff was. I live four doors down
15 from her.
16 Q Did you remove slide sets, 35 millimeter
17 color with trays and carousels belonging to your father
18 that detailed photos from Korea, Egypt, Greece, Italy,
19 Japan and other professional documentation from his
20 personal closet?
21 A Whatever slides I have were given to me by
22 my father January 15th of '98 and slides my mother gave me,
23 but I am not sure all of the things that you have
24 delineated there.
25 Q They were given to you by your father
185
1 January 15th?
2 A Of '98 and then my mother gave me some
3 slides this summer.
4 Q Did you remove them in January of 19987
5 A No, I didn't because I lived in the house
6 and --
7 THE COURT: When did you remove them?
8 THE WITNESS: The slides -- some of the
9 things were removed in '99 to my home, and then I removed
10 some slides my mother gave me in 2000. I also would like
11 to add --
12 THE COURT: Don't add. I want to get back
13 to the last question. So you are telling me now that you
14 have got boxes and boxes of things under your control, some
15 of which are your mother's?
16 THE WITNESS: Some of the things that are
17 probably my mother's, yes.
18 THE COURT: Do you know what is in those
19 boxes?
20 THE WITNESS: Not everything. Your Honor, -
21 there was 4 inches of water in the basement and I --
22 THE COURT: Just generally what type of
23 things are in the boxes or don't you even know that?
24 THE WITNESS: Some of the things I don't
25 even know. I took the boxes. I got them upstairs.
186
1 THE COURT: How many of the 90 boxes do you
2 think is your mother's property and not yours?
3 THE WITNESS: I have no idea.
4 THE COURT: No idea?
5 THE WITNESS: Not very much, not much
6 probably, maybe 10.
7 BY MS. VERNEY:
8 Q Only 10 boxes are your mother's, and the
9 other 80 boxes are yours?
10 A That's right. Ms. Verney, I stated under
11 testimony that there were 93 boxes of my own in January '96
12 put into my parents' home upon their acceptance and I lived
13 with them.
14 THE COURT: Next question. You have
15 answered it.
16 BY MS. VERNEY:
17 Q Were the items in these 90 boxes in the
18 floor level, the first floor level of your mother's home,
19 or were some on the second floor level of your mother's
20 home? ~
21 A They were on the second -- they were on the
22 basement and on the first floor. My mother moved her
23 things. She would take things from her closet, to her
24 bedroom, to the downstairs, into the basement.
25 Whatever I took was took -- was taken,
187
excuse me, of lack of surface space to dry things. There
2 were good carpets on the first floor and second floor. I
3 had to take them someplace, because I had no furniture in
4 my home, to dry them out.
5 THE COURT: You have answered the question.
6 You have established what the property situation is.
7 MS. VERNEY: I have actually a long list
8 of --
9 THE COURT: Well, she does not know. Do you
10 know anything that is of your mother's that you actually
11 have in these boxes? Do you know what any of those items
12 are that are your mother's and not yours?
13 THE WITNESS: I haven't gone through all of
14 them, no.
15 THE COURT: You do not know at all?
16 THE WITNESS: (Nodded head no)
17 BY MS. VERNEY:
18 Q Is there any jewelry or gems --
19 THE COURT: Hold on. Do you know at all?
20 THE WITNESS: Specifically, no, I don't
21 know.
22 THE COURT: That is it on property. That
23 dispute can be dealt with in another form.
24 BY MS. VERNEY:
25 Q Now, you indicated you have taken your
188
1 mother to 30 specialists. Did I recently ask you for a
2 list of those specialists and the appointments for your
3 mother that had previously been made?
4 A I received a letter from you, yes.
5 Q And did you respond to that by giving me a
6 list of those?
7 A Because under the confidentiality of
8 patient/nurse relationship, I am not in a position to
9 violate my mother's medical rights and medical
10 confidentiality.
11 Q Didn't you offer at the first hearing to
12 provide that list to Mr. Rupp?
13 A I did not. At the first hearing I said, Mr.
14 Rupp, what are you going to do about all my mother's care?
15 THE COURT: She has not been willing to tell
16 you folks where she took her mother for medical care, other
17 than to say what she has testified to. You have not
18 responded to the letter, right?
19 THE WITNESS: Ms. Verney --
20 THE COURT: Have you responded to the
21 letter?
22 THE WITNESS: I have not responded to your
23 letter.
24 THE COURT: Next question.
25 MS. VERNEY: I don't have any other
189
1 questions, Your Honor.
2 THE COURT: Now, do you wish to testify
3 regarding redirect with regard to the areas in which you
4 have been cross-examined?
5 THE WITNESS: Yes, I do.
6 THE COURT: Go ahead.
7 THE WITNESS: On Dr. Sabo's Exhibit 18, I
8 had the opportunity over lunch to look through it. In
9 here, we start off in the relevant background information.
10 What we have --
11 THE COURT: By the way, I did not admit
12 Exhibit No. 18, but I did hear Dr. Sabo's testimony and
13 that is the only evidence I will consider.
14 THE WITNESS: Okay. So we're not going to
15 accept this as admission then, his report?
16 THE COURT: I have not admitted it. It is
17 hearsay ......
18 THE WITNESS: Well, in this hearsay document
19 of Exhibit 18, we have relevant background information. It
20 is documented here where it says -- ~
21 MS. VERNEY: Your Honor, in the interest
22 of --
23 THE COURT: Sustained.
24 THE WITNESS: That the --
25 THE COURT: Ma'am, I have not admitted it so
190
you do not have to respond to it. If you would like to
2 respond -- well, you have had an opportunity to. Any
3 further testimony regarding that which you were asked on
4 cross examination by either counsel?
5 THE WITNESS: Yes.
6 THE COURT: Go ahead.
7 THE WITNESS: On the examination of Dr. Sabo
8 last month in the testimony --
9 THE COURT: You were not asked anything
10 about -- well, whether you agreed with Dr. Sabo. You were
11 asked whether you agree with Sabo. Do you?
12 THE WITNESS: I do not agree with him.
13 THE COURT: Go ahead. Tell me why.
14 THE WITNESS: I don't agree with him
15 because, first of all, in the relevant information
16 background all of this information, some of which is very
17 spurious about me suffering from paranoid schizophrenia and
18 yet they say there is no definite documentation and
19 treatment of that, all the advanced information about me is
20 hearsay from the Rupp firm. Then they go in to talk ~
21 about -- and there is lengthy paragraphs about me. It has
22 nothing to do with my mother.
23 THE COURT: That report is not in evidence.
24 You disagree with Dr. Sabo I take it?
25 THE WITNESS: Yes.
191
1 THE COURT: I do not want to put words in
2 your mouth.
3 THE WITNESS: I disagree with --
4 THE COURT: Listen. You disagree with his
5 opinion that he offered that your mother is incapacitated
6 under Pennsylvania law?
7 THE WITNESS: Yes, because he's --
8 THE COURT: Okay. Now, any other --
9 THE WITNESS: He states that she has
10 Alzheimer's.
11 THE COURT: Hold on. Any other response to
12 the cross examination?
13 THE WITNESS: Yes. So that's this document.
14 Then the two documents he had me read, I would like to
15 clarify that I disagree. Could you give me the two
16 documents that I can respond to? Are you admitting them?
17 THE COURT: Show her the two documents.
18 THE WITNESS: Are you admitting those
19 documents for evidence?
20 THE COURT: He did not admit them. Show her
21 the two documents.
22 MR. RUPP: Your Honor, this is her petition
23 to remove as executor and her letter to General Blaine.
24 THE WITNESS: My response to this motion to
25 remove him as executor, this was based in July of '98
192
1 after -- the day after -- actually three days before my
2 father passed away I never got back into the family house.
3 There was no restraining order. There was nothing. I just
4 never got back in the house except for one period of time.
5 During that period of time on March 13th of
6 1998, I spent an evening with my mother'and a morning, and
7 during that time, she told me, Fred tells me you can't come
8 in the house. I said, what do you mean I can't come in the
9 house?
10 The following morning by brother gets on the
11 phone, and she says, Fred --
12 MR. RUPP: Your Honor, beyond the scope.
13 THE COURT: Sustained. Go to the area that
14 he questioned you on and you may respond to that. Do you
15 remember what it was?
16 THE WITNESS: Yes. It was he wanted me to
17 read, I think, paragraph 14.
18 THE COURT: Read it again so I can remember
19 it.
20 THE WITNESS: Right. In addition, Freddie --
21 Gerber, II, has consistently been in denial as well as his
22 sister, Jane Noel Gerber Heflin, as to the progressive
23 decline of health and mental capacity of Mildred Jane
24 Gerber. My sister Jane --
25 THE COURT: You may respond to that. First
193
of all, did you sign that petition?
2 THE WITNESS: Yes, I did.
3 THE COURT: What is the significance of what
4 that paragraph means?
5 THE WITNESS: I use an all inclusive
6 statement that's used in medicine, the decline of health
7 and mental capacity, because there is testimony from Dr.
8 Michalek in January of '98 that my mother had abnormal
9 changes on her MRI related to age calcification.and, two,
10 that she was suffering from dementia from stress and
11 anxiety over the death of her husband. Three, she strongly
12 recommended that my mother receive ongoing medical and
13 psychiatric and psychological evaluation to rule out any
14 medical conditions that mask themselves as dementia or
15 actually does she.
16 THE COURT: So that is the basis --
17 THE WITNESS: And that's the basis of her
18 decline.
19 THE COURT: Return to the other document.
20 THE WITNESS: The other comment to that is --
21 Mrs. Heflin testified that in '98 she knew that my mother
22 was declining.
23 THE COURT: The other document you wanted to
24 refer to is the letter to the Army, right?
25 THE WITNESS: The letter to the Army. The
194
1 source of this letter was after an entire year of --
2 THE COURT: You wrote that letter?
3 THE WITNESS: Yes.
4 THE COURT: You mentioned something about
5 your mother and Alzheimer's in that letter?
6 THE WITNESS: I never used the word
7 Alzheimer's.
8 THE COURT: Read me the portion to remind me
9 of what you read before.
10 MR. RUPP: The top of page 2.
11 THE WITNESS: Thank you. My mother is in
12 early stages of dementia, and my father and I as well and
13 several of her friends who are colonels' wives from the New
14 Cumberland Depot are very clear of her physical and
15 declining mental condition.
16 THE COURT: Now, you can respond to that.
17 That is wha~ is relevant.
18 THE WITNESS: I should respond to say
19 that -- forgive me, I should have been more -- delineated
20 further dementia like, stress dementia. I used the all
21 encompassing word dementia. I did not use Alzheimer's or a
22 full diagnosis.
23 THE COURT: Any other comments?
24 THE WITNESS: Because this was not a
25 clinical letter.
195
THE COURT: Any other testimony regarding
2 the cross examination?
3 THE WITNESS: Yes. Ms. Verney and Mr. Rupp
4 grilled me about personal items taken from the house. I
5 would like to comment, on the fact that from February 19th,
6 1998, until September 1999 I was unofficially and illegally
7 restrained from my mother.
8 During that time, my sister and brother,
9 whom we know is Jane Heflin and Colonel Frederick E.
10 Gerber, II, had full access to my mother's property. When
11 I returned in January of 1999, in the conversations of '99,
12 2000, my mother told me she gave jewelry to my sister,
13 jewelry to her granddaughter Amanda, and that she was
14 giving money to both of the children.
15 There has been no inventory that I know of,
16 and this alleged letter of items that I took, one, there is
17 no appraisal on any of these items. Some of these items I
18 don't even know what they are talking about, and I don't
19 know where you evaluate family slides $15,000.00. I've
20 never heard of a couple trays of family slides being worth--
21 $15,000.00. I've never heard of an 8 millimeter camera
22 being worth $900.00.
23 THE COURT: I asked you before whether or
24 not you are personally aware of whether or not you have any
25 of the property?
196
THE WITNESS: Some of it I acknowledge. The
2 slides and the film was given by my father. How do I know
3 that?
4 THE COURT: That is the answer. Any further
5 comment on the cross?
6 THE WITNESS: Yes. I'm most seriously
7 concerned about the fact that my brother alleges that I
8 took two firearms. Those firearms are in the house, and I
9 know they are in the house because I could bring a police
10 officer to this court --
11 THE COURT: Where are they in the house?
12 THE WITNESS: They are in my mother's house.
13 THE COURT: You do not know where they are?
14 THE WITNESS: They are in my brother's
15 bedroom.
16 THE COURT: Any further comment on the
17 cross?
18 THE WITNESS: Let's see, what else? Oh, the
19 loan and the money. Through two months now, and this is
20 the second day of testimony, no one's ever asked me if -
21 there was any loan given to me by my mother. Absolutely my
22 mother loaned me money, and her attorney Joseph Metz knew
23 that --
24 THE COURT: Well, you are repeating what you
25 said.
197
1 THE WITNESS: -- and my Attorney Michael
2 Kane.
3 THE COURT: That is asked and answered.
4 Anything else?
5 THE WITNESS: At this time I can't think of
6 anything else.
7 THE COURT: Any recross?
8 MR. RUPP: No, Your Honor.
9 THE COURT: Any recross?
10 MS. VERNEY: No, Your Honor.
11 THE COURT: You may step down.
12 THE WITNESS: Thank you.
13 THE COURT: Now, did you tell me you have
14 documents you wish to have admitted?
15 MS. GERBER: Yes, Your Honor.
16 THE COURT: How many?
17 MS. GERBER: Maybe about ten.
18 THE COURT: Have them marked with the
19 stenographer. I will take a break. When you are through,
20 I will come out, and I will let you make an offer to what --
21 they are. If they are relevant, I will have them admitted.
22 Recess.
23 MS. GERBER: Your Honor, I would like to
24 bring -- I'm sorry, about witnesses. My mother has not
25 been brought --
198
THE COURT: Wait.
2 (Whereupon, a brief recess was taken.)
3 THE COURT: Identify your documents and make
4 an offer as to what they show. Have you seen them,
5 counsel?
6 MR. RUPP: No, I haven't.
7 THE COURT: Go ahead.
8 MS. GERBER: I would like to submit by
9 letter from --
10 THE COURT: Identify it by number.
11 MS. GERBER: I'm sorry. Excuse me. I
12 didn't number them in case you didn't accept them because I
13 didn't want to waste the stickies, and I would just start
14 over again.
15 THE COURT: You do not have to worry about
16 wasting stickies, but go ahead, give me what the document
17 says.
18 MS. GERBER: This will be number four. It's
19 to whom it may concern. It's about my disability status.
20 THE COURT: Your disability status? -
21 MS. VERNEY: Objection.
22 THE COURT: Objection sustained, not
23 relevant.
24 MS. GERBER: Here's a check written from my
25 mother to me from November 1999.
199
1 THE COURT: For how much?
2 MS. GERBER: $150.00. It says for thank you
3 greatly.
4 THE COURT: Sure.
5 MS. GERBER: Okay. That's number four.
6 Medical documentation from the chief of medicine at Hershey
7 Medical Center and a pulmonologist on my mother's
8 well-being and her nutritional status and the care that I
9 gave her.
10 THE COURT: As of when?
11 MS. GERBER: As of November 7th, 2000.
12 THE COURT: Is it a medical record or is it
13 a document prepared at your request to make a statement?
14 MS. GERBER: No, no. It's to a physician,
15 and it's on the evaluation of my mother and delineates her
16 illness.
17 THE COURT: Show it to counsel. Let me know
18 if there is any objection.
19 MS. GERBER: They have a copy of it.
20 THE COURT: Show it to counsel. --
21 MR. RUPP: These are office notes.
22 THE COURT: Office notes from a physician?
23 MS. GERBER: 11/2/2000 from Dr. Reynolds at
24 Hershey Med. He is the chief of medicine. He is not a
25 specialist. She's asked about the 30 specialists.
200
1 THE COURT: Wait. Ma'am, let her look at
2 it.
3 MS. GERBER: It goes on to talk --
4 THE COURT: Ma'am.
5 MS. GERBER: I'm sorry. You want them to
6 read all four pages?
7 MR. RUPP: We would object to it. It was
8 concerning Mildred Gerber's chest issue, and he treated her
9 regarding her problems with her chest.
10 THE COURT: Listen to my question. Is there
11 anything on her capacity and mental status in that report?
12 MS. GERBER: Yes. It also lists her meds.
13 THE COURT: Tell me what it is.
14 MS. GERBER: It comments on her ability to
15 tell him what's wrong with her.
16 THE COURT: Mark it. I will accept it for
17 what it is worth. It is hearsay.
18 MS. GERBER: There was a --
19 THE COURT: Ma'am, next document.
20 MS. GERBER: All right. Then I have wire --
21 transfers from my mother to me. Do you want them?
22 THE COURT: Show it to counsel.
23 MS. VERNEY: Dates?
24 THE COURT: Show it to counsel first.
25 MS. GERBER: 7/16, 7/7 and 8/3.
201
1 THE COURT: Off the record. She is not
2 talking to me.
3 (Whereupon, a brief discussion was held
4 off the record.)
5 MR. RUPP: Your Honor, I don't think I have
6 any objection to the wires.
7 THE COURT: No objection?
8 MS. VERNEY: No objection.
9 THE COURT: Mark them. Admitted. What
10 number?
11 MS. GERBER: Does each one get a sticky?
12 THE COURT: No.
13 MS. GERBER: So that will be number six.
14 THE COURT: Six will be three wires of
15 money.
16 MS. GERBER: Okay. We're cooking. All
17 right. Here is Pennsylvania Water Company. My brother
18 alleges he took particular care of her. This is for a
19 three day shutoff on 11/27/2000 which I had to deal with.
20 They shut off her water -- __
21 THE COURT: Show it to counsel.
22 MS. GERBER: -- for nonpayment. I had to
23 then call and get her set up and get her payment done.
24 THE COURT: Just be quiet a minute. Let
25 them see it.
202
1 MS. VERNEY: I don't have an objection.
2 MR. RUPP: No objection.
3 THE COURT: Mark it. What number?
4 MS. GERBER: Seven.
5 THE COURT: Admitted.
6 MS. GERBER: I'm goinH to have to make
7 copies because these are originals with notes.
8 THE COURT: The originals are what come in.
9 MS. GERBER: Right.
10 THE COURT: Next.
11 MS. GERBER: Next is a copy of notes of my
12 mother where she says I want Marilyn to take care of me.
13 THE COURT: When?
14 MS. GERBER: With Joe Metz in October of
15 2000.
16 THE COURT: Is there an objection?
17 MS. GERBER: She talks about Rupp.
18 THE COURT: Just hold on a minute.
19 MS. VERNEY: JudHe, she's available to
20 testify. -
21 THE COURT: She is going to testify.
22 MR. RUPP: I don't think we need to enter --
23 MS. GERBER: I would like to submit it as
24 evidence.
25 MS. VERNEY: I would object to it.
203
THE COURT: On an isolated basis, it is not
2 If you want to use it in the examination of your mother,
3 you may do so.
4 MS. GERBER: All right. Fine. We are
5 assuming the revocation document allegedly that they think
6 I forged, did we accept that as an exhibit?
7 THE COURT: Do you have an exhibit you want
8 to admit?
9 MR. RUPP: It's already admitted.
10 MS. GERBER: It's already in, okay. My
11 mother's last will and testament that was given to me and
12 to her attorney clearly states that my brother's enriching
13 himself. He gets -- he wants the house.
14 THE COURT: Show it to them.
15 MS. GERBER: That's the basis of all of this
16 and why --
17 THE COURT: Ma'am, do not clutter my record
18 up.
19 MS. GERBER: It was prepared by the Rupp
20 firm. __
21 MS. VERNEY: I don't have an objection.
22 MR. RUPP: I don't have an objection.
23 THE COURT: Mark it. What number?
24 MS. GERBER: Eight.
25 THE COURT: Admitted.
204
MS. GERBER: My mother's revocable --
2 revised and restated revocable trust done in April o~ '99
3 by the Rupp firm. It clearly shows my brother enriches
4 himself and my sister, given to me by my mother and to her
5 Attorney Joe Metz.
6 MR. RUPP: I have no objection.
7 MS. VERNEY: No objection.
8 THE COURT: Mark it. What number?
9 MS. GERBER: Nine.
10 THE COURT: Admitted. Is the mother the
11 next witness?
12 MS. GERBER: 8/31/2000 --
13 THE COURT: Is your mother the next witness?
14 MS. GERBER: I've got more exhibits.
15 THE COURT: Is your mother your next
16 witness?
17 MS. GERBER: Yes, sir.
18 THE COURT: Where is she?
19 MS. VERNEY: She's down the hall, Judge.
20 THE COURT: Here on this floor? -
21 MS. VERNEY: Yes, Your Honor.
22 THE COURT: Go ahead.
23 MS. GERBER: 8/31/2000, Free Flow, it's the
24 first of the drain problems from the flood that led to my
25 taking 90 some boxes out of the house. Also --
205
THE COURT: No further comment until they
2 take a look at it.
3 MS. VERNEY: No objection.
4 MR. RUPP: No objection.
5 THE COURT: Mark it.
6 MS. GERBER: That's number ten.
7 THE COURT: Admitted.
8 MS. GERBER: Then I have a bunch of
9 photographs that were taken in January 2001 as evidence to
10 the safekeeping of my personal property and things that are
11 mine in that house.
12 MS. VERNEY: Irrelevant, Your Honor.
13 THE COURT: Sustained.
14 MS. GERBER: Okay. Well, now they know I
15 have it. And then there is an exhibit by my mother to Mr.
16 Metz, a restraining order, where she asks Mr. Metz that she
17 wants the restraining order against me.
18 THE COURT: She is going to testify.
19 MS. GERBER: Okay. And then we also -- I
20 want Mr. Metz to be my personal attorney and executor
21 and --
22 THE COURT: Your mother's document?
23 MS. GERBER: Yes.
24 THE COURT: She is going to testify.
25 MS. GERBER: Remove my brother yadda, yadda,
206
yadda, okay. And, yes, then two surprises, a codicil to my
2 father's will where it clearly states --
3 MS. VERNEY: Irrelevant, Your Honor.
4 THE COURT: Sustained.
5 MS. GERBER: Well, it supports that the
6 property is mine.
7 THE COURT: Sustained.
8 MS. GERBER: Well, I'll submit it to
9 Orphans' Court for a reevaluation of my father's will.
10 THE COURT: Anything else document wise?
11 MS. GERBER: Yes. Then I have numerous
12 pages of financial analysis on what I could get from check
13 stubs, check registers, limited accounting on the trusts my
14 mother is beneficiary of, and also the checks that my
15 mother has written to all of us in the last two and a half
16 years.
17 MR. RUPP: Objection.
18 THE COURT: Sustained.
19 MS. GERBER: So you don't want any financial
20 information of my mother?
21 THE COURT: I sustained the objection.
22 MS. GERBER: Okay. Fine.
23 THE COURT: Is that it?
24 MS. GERBER: That's it.
25 THE COURT: Do you wish to call your mother?
207
MS. GERBER: Yes.
2 THE COURT: Have a seat.
3 MS. GERBER: Thank you.
4 THE COURT: When you talk to your mother andi
5 you question her from here, since I have already been told
6 by a physician that this is not in her best interest, I
7 will hold you to the absolute strictest standards of an
8 attorney.
9 MS. GERBER: Yes, sir.
10 THE COURT: In 17 years, I probably had an
11 alleHed incompetent question two or three times in court,
12 and you will do it absolutely within the strict standards
13 and with compassion. The second you vary, it will be the
14 end of the examination. Do you understand that?
15 MS. GERBER: I understand that.
16 THE COURT: BrinH her in. As soon as she is
17 here, rinH me in.
18 (Whereupon, a brief recess was taken.)
19 (Whereupon, the testimony of Mildred J.
20 Gerber was taken, it havinH already been --
21 transcribed.)
22 MS. GERBER: Your Honor, my mother has been
23 here for seven hours. I would like to make a point that I
24 would like her --
25 THE COURT: Would you just be quiet until
208
1 your mother leaves the courtroom. Do you have any further
2 testimony on this issue?
3 MS. GERBER: On my mother?
4 THE COURT: Yes.
5 MS. GERBER: Yes.
6 THE COURT: On capacity?
7 MS. GERBER: Yes.
8 THE COURT: Who?
9 MS. GERBER: Who? Oh, myself.
10 THE COURT: Your testimony is completed.
11 Anybody else?
12 MS. GERBER: Could I recall my sister or
13 not?
14 THE COURT: No. The record is complete on
15 that issue. Off the record, argument.
16 (Whereupon, argument was held off
17 the record.)
18 THE COURT: I am going to enter this interim
19 order. Based on all of the evidence presented herein, I
20 find that Mildred J. Gerber, born November 9, 1914, is an
21 incapacitated person as defined in 20 PA Consolidated
22 Statutes 5501.
23 I am still on the record. Given the legal
24 dispute in this case of this family, does your client still
25 wish to proceed and litigate whether he should remain a
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co-guardian of the estate?
2 MR. RUPP: Your Honor, Colonel Gerber would
3 be willing to let PNC Bank be the sole guardian.
4 THE COURT: Fine. Then there is no further
5 issue on that. Given the famile problems in the estate,
6 I think that is a wise decision. Even though I might state
7 personally I feel he is competent to be a guardian. I
8 would not normally appoint a personal guardian, either a
9 co-guardian or a sole guardian, of the estate where there
10 is such problems and difficulties among the family members.
11 MS. GERBER: Your Honor.
12 THE COURT: Yes, ma'am.
13 MS. GERBER: In lieu of the fact that PNC is
14 too intimately wrapped up in this case and they have
15 allowed my mother to run $50,000.00 non-interest bearing
16 checking account without any assistance for over three
17 years, I would like to rule that we choose somebody other
18 than PNC. I've done investigation on other very
19 adequately, much larger, much older brokerage and trust
20 management companies.
21 At this time, after doing extensive research
22 from Washington D.C., Philadelphia, Harrisburg, and
23 Pittsburgh, I would like to recommend that it is a large
24 enough firm and an established firm. Number one on the top
25 of my list is Merrill Lynch and I have done -- I have no
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personal interest with them, no accounts with them at all.
2 Mr. Robert Wagner -- Merrill Lynch is a very adequate firm.
3 Aside from what you see in the media for
4 what they have done with the dot coms, their trust funds
5 are managed totally differently. That goes for all of the
6 brokerage firms.
7 There is another one which is Payne Webber.
8 I would like to recommend that my mother's personal
9 checking account be removed for obvious reasons to a
10 noncompetitive -- a noncompetitor of a mutual account. The
11 only bank established in this state would be Mellon Bank.
12 I have an account in another bank. Because my mother has
13 the same initials and the same name, I suggest she be at a
14 bank which is neutral and new to her and --
15 THE COURT: Stop talking for a minute while
16 the trucks go by. Just tell me the names of the banks you
17 want to have. May I ask, have you got any consents from
18 these banks to be appointed at this time?
19 MS. GERBER: Consents that they can do it?
20 THE COURT: Consents that they will do it.
21 MS. GERBER: Yes, absolutely.
22 THE COURT: Where?
23 MS. GERBER: Merrill Lynch.
24 THE COURT: Where? You have the documents?
25 MS. GERBER: I was not aware that I had to
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have the documents.
2 THE COURT: So you do not have them. Name
3 me the institutions you wish.
4 MS. GERBER: Merrill Lynch or Payne Webber.
5 THE COURT: Go ahead.
6 MS. GERBER: T. Rowe Price.
7 THE COURT: And your objection is that while
8 your mother was managing her own money and opened an
9 account in a bank that the bank should not have accepted
10 her checking account?
11 MS. GERBER: No, that's not my argument. I
12 would go frequent with my mother -- August through January
13 of this year, August of 2000, I went frequent with her to
14 the bank. They testified that she frequently had 30 to
15 $50,000.00. I set down with Tom DiLello and their trust
16 people. I asked them to draw evaluations and a document
17 recommendation with my mother present. My mother made
18 me --
19 THE COURT: Ma'am, I can see why the bank
20 did not intervene. The bank does not intervene in a matter _
21 like that which is a legal matter.
22 MS. GERBER: But, Your Honor --
23 THE COURT: Stop. I have total, complete
24 and absolute confidence in the trust office of PNC Bank to
25 manage this estate. Have a seat. Add to my order. PNC
212
1 Bank is appointed plenary guardian of the estate of Mildred
2 J. Gerber. These proceedings are closed.
3 Be sure with the attorneys present and Mrs.
4 Gerber that all of the exhibits that were marked and
5 admitted you have before they leave.
6 (Whereupon, the hearing was concluded
7 at 3:40 p.m.)
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1 CERTIFICATION
2 I hereby certify that the proceedings are
3 contained fully and accurately in the notes taken by me on
4 the above cause and that this is a correct transcript of
5 same.
6
7 Pamela R. Sheaffer
8 Official Court Reporte~
10 The foregoing record of the proceedings on
11 the hearing of the within matter is hereby approved and
121314 directed to be filed. ~~/~?
Date E~ga~-~. ~:'J'rict
16 Ninth Judicial D~st
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