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HomeMy WebLinkAbout12-19-01 (2) IN RE: APPOINTMENT OF A GUARDIAN : IN THE COURT OF COMMON PLEAS OF THE PERSON OF MILDRED J. GERBER, : CUMBERLAND COUNTY, PENNSYLVANIA and alleged incapacitated person, : ORPHANS COURT DIVISION : Respondent : NO. 21-01-92 MOTION FOR RECONSDERATION AND TO VACATE ORDER OF COURT AND NOW, comes Marilyn Jo Gerber, by and through her counsel, Caldwell & Keams, respectfully requesting the Court to reconsider the Motion to Strike presented by Respondent, Fred E. Gerber, II, of Movant's New Matter and Order of Court dated December 13, 2001, averting in support thereof as follows: 1. Movant is Marilyn Jo Gerber, Respondent in the above captioned action, who has a residence at 42 Drexel Place, New Cumberland, Pennsylvania 17070. 2. Respondent is Frederick E. Gerber, II, Petitioner for appointment of a guardian in the above referenced matter. 3. On or about December 7, 2000, Movant by and through her counsel served an Answer With New Matter to the Petition for Appointment of Guardian of the person of Mildred J. Gerber upon counsel for Respondent, Richard C. Rupp, Esquire, and Jacqueline M. Verney, Esquire, counsel for Mildred J. Gerber; the Answer With New Matter to Petition of Frederick E. Gerber was filed by and on behalf of Marilyn Jo Gerber to her counsel, on December 10, 2001. 4. On December 12, 2001, Movant's counsel received by facsimile from counsel Richard Rupp a Motion to Strike New Matter from the Answer of Marilyn Jo Gerber filed in the within matter;. Movant's counsel replied by facsimile the same date that Movant would not consent to the Motion. 5. On December 13, 2001, an Order was entered by the Court striking Movant's New Matter from the Answer which had been filed and a copy of said Court Order was then received by Movant on December 14, 2001. A true and correct copy of the Court's Order is attached hereto and marked as Exhibit A. 6. An original Petition for Appointment of a Guardian in this matter was filed September 5, 2001, with service thereof not made on Movant, Marilyn Gerber, until September 29, 2001. 7. On October 5, 2001, a Motion for Continuance was presented by Movant, Marilyn Jo Gerber, with respect to the heating scheduled October 8, 2001, which Motion was denied. 8. Only thereafter, did hearing of the matter commence on October 8, 2001. 9. No provision of 20 Pa. C.S.A. §5511, specifically requires a response or answer to said Petition, neither was such response directed in the citation issued in the matter to do so. 10. No order or rule to show cause has been issued directing or otherwise requiring that Respondent file an answer to said Petition for Appointment of Guardian to establish any basis for timeliness of said answer. 11. Testimony has been received from the Movant during prior proceedings before the Court on February 21, 2001, and March 22, 2001, regarding the Petition of Frederick E. Gerber, II, for appointment of a guardian over the Estate of Mildred J. Gerber. 12. Movant has standing to appear and present evidence relevant to the issues of capacity, the appointment of a guardian, and other matters to be brought before the Court under the requirements of 20. Pa. C.S.A. §5511 et. seq. 2 13. As of the October 8, 2001, hearing, all parties knew or should have known that Marilyn Jo Gerber desired to be considered as appointment for guardian of Mildred J. Gerber in the alternative, and that she was opposing the appointment of a guardian for her matter in the pending proceedings. 14. On November 9, 2001, counsel for Movant, Marilyn Jo Gerber, was stricken ill and hospitalized on an emergency basis, and was incapacitated and unable to return to work until November 26, 2001, on a limited basis. 15. On or about November 9, 2001, counsel for Respondent for Frederick E. Gerber, II, became aware of such circumstances concerning counsel for Movant's unavailability and illness. 16. On or about November 26, 2001, Movant's counsel communicated with Richard C. Rupp, counsel for Respondent regarding said answer. 17. Undersigned counsel indicated that a response to the Complaint would be completed and served by December 7, with the concurrence of counsel for Respondent. 18. As a result of Movant's counsel health and incapacity, additional time was required to complete the Response and New Matter to the Petition. 19. Respondent Frederick E. Gerber, II, and his counsel, have substantial familiarity with Movant, Movant's objections to the pending proceedings, which have been known to Respondents at least since the February 21, 2001 hearing and specifically as of the October 8, 2001, heating. 20. Adequate opportunity and time has existed for Respondent Frederick E. Gerber, II, and counsel since the hearing of February 21, 2001, and specifically since the October 8, 2001, heating, to depose Movant Marilyn Jo Gerber, or conduct other discovery relative to the pending Motion for Appointment of Guardian of the person of Mildred J. Gerber; thus, Respondent's 3 allegations of prejudice to the within proceeding and ability to respond to the New Matter presented by reason of Movant's answer, are without merit. 21. This Honorable Court has respectfully erred in striking the New Matter without adequate opportunity to respond by Movant to Respondent's Motion and present appropriate defenses and evidence to the pending action as intended by 20 Pa. C.S.A. §5511. WHEREFORE, Movant, Marilyn Jo Gerber, respectfully requests that the Court reconsider the Motion to Strike presented by Respondent Frederick E. Gerber, II, and vacate the Order of December 13, 2001, reinstating the New Matter as filed ofMovant Marilyn Jo Gerber nunc pro tunc. Respectfully submitted, CALDWELL & KEARNS By ~~~~' Stanley J. A. La~O/wski, Esquire 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 I.D. #37422 Date: /2-/~-I Attorney for Movant Marilyn Jo Gerber 33777 4 VERIFICATION I, MARILYN JO GERBER, verify that the averments made in this Motion are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating to unsworn falsification to authorities. Date:/~~///4 ~/ CERTIFICATE OF SERVICE AND NOW, this ,/~d,. day of December, 2001, I hereby certify that I have served a copy of the within document on the following by depositing a true and correct copy of the same in the U.S. Mails at Harrisburg, Pennsylvania, postage prepaid, addressed to: Richard C. Rupp, Esquire 355 North 21st Street Suite 205 Camp Hill, PA 17011 Jacqueline M. Vemey, Esquire 44 South Hanover Street Carlisle, PA 17013 CALDWELL & KEARNS