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HomeMy WebLinkAbout12-21-01 (3) COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION IN RE: : No. 21-01-92 APPOINTMENT OF A GUARDIAN : OF THE PERSON OF MILDRED J. GERBER, : an alleged incapacitated person : MOTION And NOW comes the Movant, Richard C. Rupp, Esq, attorney for Petitioner, Frederick E. Gerber, II, through his Attorneys Rupp and Meikle and Richard C. Rupp, Esquire who makes this Motion, as follows: THIS MOTION is in response to an observation of Stanley J. Laskowski, Esquire, counsel for Marilyn J. Gerber, Protestant, that there is a possible defect in the proceedings in the above-captioned action, for the reason that the alleged incapacitated person was not present during the two hearings on October 8, 2001 and December 19, 2001. 1. The Movant is Richard C. Rupp, Esq. Attorney for Frederick E. Gerber, II, Petitioner for Guardian of the Person for Mildred J. Gerber in the above- captioned guardianship proceeding, No. 21-01-92 and who makes this Motion. 2. The alleged incapacitated person is Mildred J. Gerber. The alleged incapacitated person was properly represented throughout the Guardianship Hearing by her legal counsel, Jacqueline Verney, Esquire. 3. The Respondent / Protestant is Marilyn .I. Gerber, daughter of the alleged incapacitated person. 4. At the close of the Hearing on Dec. 19, 2001 in the above referenced Guardianship of the Person proceeding, the Respondent / Protestant's counsel advised the Court that since the alleged incapacitated person had not been present during two hearings on Oct. 8, 2001 and Dec. 19, 2001, there could be a defect in the proceeding or that the proceeding could be void. 2 5. The Guardianship Act, 20 Pa. C.S.A. 5511 (a), states "... the alleged incapacitated person shall be present at the hearing unless: (1) the Court is satisfied, upon deposition or testimony of or sworn statement by a physician or licensed psychologist, that his physical or mental condition would be harmed by his presence; or (2) it is impossible for him to be present because of his absence from the Commonwealth .... " 2. The alleged incapacitated person was physically present in the Cumberland County Courthouse during the entire time of both hearings on Oct. 8, 2001 and Dec. 19, 2001. 3. No request was made by Respondent ? Protestant to compel the presence of the alleged incapacitated person in the courtroom during the two hearings for Guardianship of the Person. 3 4. Respondent / Protestant did not call the alleged incapacitated person as a witness in the hearings for Guardianship of the Person. 5. At the hearing on October 8, 2001, Dr. Roger J. Cadieux, Board Certified Fellow, Geriatric Psychiatrist, testified as follows: "May I ask if Mrs. Gerber is in the room? (Page 32, line 5 of the October 8, 2001 transcript.) (Exhibit 1) 6. When told that Mrs. Gerber, the alleged incapacitated person, was not in the courtroom but elsewhere in the Courthouse, Dr. Cadiuex further testified "Okay. I was going to say this could be very disturbing for her to hear." (Page 32, lines 9 - 10 of the October 8, 2001 transcript.) (Exhibit 1) 7. The record does not indicate whether or not the Court is satisfied, upon the testimony of Dr. Cadieux, that the physical or mental condition of the alleged incapacitated person would be harmed by her presence. 8. The observation of counsel for Protestant was premature because the Court may indicate its satisfaction in its findings, which have not yet been made, that the alleged incapacitated person not be present at the hearing. 9. The Court can take into consideration in addition to the opinion of Dr. Cadieux at the October 8, 2001 hearing, the testimony and opinion of David 4 Sabo, licensed psychologist, in the prior hearings for Appointment of a Guardian of the Estate for the alleged incapacitated person. 10. In the proceeding for the Appointment of a Guardian of the Estate for the alleged incapacitated person, at the hearing on February 21, 2001, Dr. Sabo was asked "Were you able to reach an opinion with reasonable expert certainty, Doctor, that it would be harmful for Mildred to be in the same courtroom with Marilyn?" Dr. Sabo replied: '1 believe that without a doubt." (Transcript February 21,2001, page 13, lines 3 - 10) (Exhibit 2) 11. The alleged incapacitated person is the same in the Guardian of the Estate proceeding and the Guardian of the Person proceeding. 12. In the Guardian of the Estate proceeding, the Protestant called the alleged incapacitated person as a witness which permitted the Court to view and evaluate the alleged incapacitated person. 13. The Court may take judicial notice of the testimony of Dr. Sabo in the Guardian of the Estate proceeding. 14. The Court had the benefit of personal observation and testimony of the alleged incapacitated person in the Guardianship of the Estate proceeding. 5 I. FINDING OF FACT THAT GUARDIANSHIP ACT COMPLIED WITH 15. Paragraphs 1 though 14 are incorporated herein by reference as if set forth in full. 16. The Petitioner avers that in this proceeding the expert witness, Dr. Roger Cadieux, board certified fellow geriatric psychiatrist, testified that it could be very upsetting to the alleged incapacitated person to be present in the courtroom and hear the testimony. 1 7. Dr. Cadieux testified: "May I ask if Mrs. Gerber is in the room ? "(Page 32, line 5 of the October 8, 2001 transcript). (Copy attached as Exhibit 1.) 18. When told that Mrs. Gerber, the alleged incapacitated person, was not in the courtroom, but elsewhere in the courthouse, Dr. Cadiuex testified: "Okay. I was going to say this could be very disturbing for her to hear." (Page 32, lines 9 -10 - of the October 8, 2001 Transcript). (Exhibit 2) 19. Therefore, for this reason, the condition of the Guardianship Act, 20 PA CSA 5511 (a) has been complied with regarding the presence of the alleged incapacitated person in the courtroom. WHEREFORE, the Petitioner respectfully requests this Honorable Court to 6 include in its findings of fact that the Court was satisfied that the alleged incapacitated person was not present in the instant guardianship proceedings and appoint Frederick E. Gerber, II, as Guardian of the Person of Mildred J. Gerber, in accordance with the overall testimony in this matter, No. 21-01-92 and the Guardianship Act, 20 PA CSA 5511. II. RELATED PROCEEDING In the alternative, Your Movant requests The Court to consider the prior Guardian of the Estate Proceeding as a related or part of the instant Guardian of the Person Proceeding, as follows: 20. Paragraphs 1 through 19 are incorporated herein by reference as if set forth in full. 21. The Petitioner avers that since this proceeding is the a related proceeding to the first Guardianship Hearing (Guardian of the Estate for Mildred J. Gerber) as it is docketed to the SAME docket number, the Court did or should accept the in-court testimony of Dr. David Sabo, licensed psychologist, who testified that it could be harmful to the alleged incapacitated person Mildred J. Gerber to be present in the same courtroom as Marilyn J. Gerber, the Respondent / Protestant. 22. Dr. Sabo testified, when asked "Were you able to reach an opinion with ... 7 reasonable expert certainty, Doctor, that it would be harmful for Mildred to be in the same courtroom with Marilyn .e ,' I believe that without a doubt '." ( February 21,2001 Transcript, page 13 lines 3 - 10). (Copy attached as Exhibit 2.) 23. Also, the same parties have been involved in this matter, both in the first Guardianship proceeding as in the second Guardianship proceeding. 24. In the last Guardianship proceeding (Guardian of the Estate), the Respondent / Protestant called the alleged incapacitated person as a witness which permitted the Court to view and evaluate the alleged incapacitated person in that proceeding, the first part of this matter. 25. As such, the Guardianship Act, 20 PA CSA 5511, has been complied with for this part of this matter, the Petition for Guardian of the Person, by reason of both the testimony of Dr. Sabo, licensed psychologist, and the testimony of the alleged incapacitated person in the first part of this matter. 26. Additionally, when Dr. Cadieux testified in this part of this matter, the Guardianship of the Person Hearing, he wanted to make sure the alleged incapacitated person was not present in the courtroom because of the extreme upset it could cause her. 8 WHEREFORE, IN THE ALTERNATIVE, The Petitioner respectfully requests this Honorable Court to include in its findings of fact that the Court was satisfied that the alleged incapacitated person was not present in the instant guardianship proceedings and appoint Frederick E. Gerber, II, as Guardian of the Person of Mildred J. Gerber, in accordance with the overall testimony in this matter, No. 21- 01-92 and the Guardianship Act, 20 PA CSA 5511. III. JUDICIAL NOTICE In the alternative, Your Movant requests The Court to consider the prior Guardian of the Estate Proceeding as a related hearing and take judicial notice of the testimony of David Sabo, licensed psychologist and the testimony of the alleged incapactiated person, as follows: 27. Paragraphs 1 through 26 are incorporated herein by reference as if set forth in full. 28. The same statutory requirement for presence of the alleged incapacitated person applied to the first proceeding for Guardian of the Estate and to this proceeding for Guardian of the Person, except for the two exemptions cited above in the Act. In the first proceeding for Guardian of the Estate, the Court was satisfied that it would proceed without the presence of the alleged incapacitated person based on the testimony of Dr. David Savo, licensed 9 psychologist, that it would be harmful to the alleged incapacitated person to be present. 29. If the Court were to find that the alleged incapacitated person should have been present throughout this part of the proceeding (Petition for Guardian of the Person), Petitioner avers that since this proceeding is a related proceeding to the first Guardianship Hearing (Guardian of the Estate for Mildred J. Gerber) to the SAME docket number, the Court did or can take Judicial Notice of the in-court testimony of Dr. David Sabo in the Guardianship of the Estate, who testified that it could be harmful to the alleged incapacitated person Mildred J. Gerber to be present in the courtroom and apply to the instant proceeding, Guardianship of the Person. 30. Dr. Sabo testified, when asked "Were you able to reach an opinion with ... reasonable expert certainty, Doctor, that it would be harmful for Mildred to be in the same courtroom with Marilyn .~ ,' I believe that without a doubt' ." ( February 21, 2001 Transcript, page 13 lines 3 - 10). (Exhibit 1) 31. Also, the same parties have been involved in this matter, both in the first Guardianship proceeding (Guardian of the Estate) as in the second Guardianship proceeding (Guardian of the Person). 32. In the last Guardianship proceeding (Guardian of the Estate), the Respondent 10 / Protestant called the alleged incapacitated person as a witness which permitted the Court to view and evaluate the alleged incapacitated person in that proceeding, the first part of this matter. 33. As such, the Guardianship Act, 20 PA CSA 5511, has been complied with for the instant proceeding by reason of the testimony of Dr. Sabo, licensed psychologist, the testimony of the alleged incapacitated person in the first Guardianship proceeding and combined with the testimony of Dr. Cadieux in the instant proceeding should be considered as a whole opinion that it would have been harmful to the alleged incapacitated person to be present in the courtroom. WHEREFORE, IN THE ALTERNATIVE, The Petitioner respectfully requests this Honorable Court to take Judicial notice of Dr. Sabo's testimony regarding presence of the alleged incapacitated person in the courtroom and testimony of the alleged incapacitated person in this matter if the Court has not already done so and include in its findings of fact that the alleged incapacitated person did not have to be present in the courtroom under 20 PA CSA 5511 (a) for this proceeding, Guardianship of the Person Petition. WHEREFORE, The Petitioner respectfully requests this Honorable Court to 11 appoint Frederick E. Gerber, II, as Guardian of the Person of Mildred J. Gerber, in accordance with the overall testimony in this matter, No. 21-01-92 and the Guardianship Act, 20 PA CSA 5511. IV. ESTOPPEL In the alternative, Your Movant requests The Court to include in its findings of fact that the Respondent / Protestant is estopped from raising any alleged defect as to the presence of the incapacitated person at the October 8, 2001 and December 19, 2001 hearings in this matter, as follows: 34. Paragraphs 1 through 33 are incorporated herein by reference as if set forth in full. 35. The Respondent/Protestant, Marilyn Gerber, did not request the presence of the incapacitated person at the outset of the Hearing. 36. If the Respondent / Protestant had requested the presence of the alleged incapacitated person at the outset of the hearing, the Petitioner or the alleged incapacitated peron's legal counsel could have had Dr. Cadiuex testify as to the harm it would have caused to the alleged incapacitated person. 37. Dr. Cadieux's position would be that the alleged incapacitated person could be harmed by her presence in the courtroom as evidenced by his letter of 12 November 18, 2001, (said letter is attached hereto as Exhibit 3 and incorporated herein by reference.) In his letter, Dr. Cadieux states that "In re examining Mrs. Gerber today, I am again impressed with the degree of distress that she is exhibiting regarding the ongoing guardianship hearing. She states to me emphatically that she wishes for her son to be her guardian, rather than her daughter, and wishes for the proceedings to conclude with that result. She goes on to state that in view of Marilyn's past interactions with her, and her concerns that "Marilyn is not trustworthy" that she would not feel that her daughter would have her best interests in mind. I would suggest that the continuing stressor of the court proceedings is detrimental to Mrs. Gerber's emotional state and am hopeful that these hearings will conclude shortly. In addition, it is my best medical opinion that requiring Mrs. Gerber to be present in further court hearings would be harmful to her." 38. Further, when Dr. Cadieux testified, he wanted to make sure the alleged incapacitated person was not present in the courtroom, to prevent upset to her. 39. Therefore, for the above reasons, the Respondent / Protestant is estopped from raising the alleged defect from the absence of the alleged incapacitated person and alleged defect in the Guardianship of the Person proceeding. WHEREFORE, IN THE ALTERNATIVE, The Petitioner respectfully requests this Honorable Court to make findings of fact that in this Guardianship of the Person proceeding, Respondent / Protestant is estopped from raising any defect. WHEREFORE, The Petitioner respectfully requests this Honorable Court to appoint Frederick E. Gerber, II, as Guardian of the Person of Mildred J. Gerber, in accordance with the overall testimony in this matter, No. 21-01-92 and the 13 Guardianship Act, 20 PA CSA 5511. VI. RECONSIDER TRIAL MOTION TO TAKE JUDICIAL NOTICE In the alternative, Your Movant requests The Court to reconsider the Petitioner's legal counsel's motion at the close of the Petitioner's case to take judicial notice of the proceeding in the prior Guardian of the Estate Proceeding, as follows: 40. Paragraphs 1 through 39 are incorporated herein by reference as if set forth in full. 41. In this proceeding, the Guardianship of the Person Hearing, Petitioner's legal counsel made the Motion for the Court to take Judicial Notice of the record in the prior proceeding, the Guardianship of the Estate Hearing. 42. Said record from the prior part of this matter, includes Dr. Sabo's testimony about the harm to the alleged incapacitated person from being in the courtroom, referenced above. WHEREFORE, IN THE ALTERNATIVE, the Petitioner respectfully renews the Petitioner's trial motion to take judicial notice of the prior record in the Guardianship of the Estate proceeding and, thereby, to take Judicial notice of Dr. Sabo's testimony regarding presence of the alleged incapacitated person in the 14 courtroom for this matter if the Court has not already done so and include in its findings of fact that the alleged incapacitated person did not have to be present in the courtroom under 20 PA CSA 5511 (a) for this part of this matter, Guardianship of the Person Petition. WHEREFORE, The Petitioner respectfully requests this Honorable Court to appoint Frederick E. Gerber, II, as Guardian of the Person of Mildred J. Gerber, in accordance with the overall testimony in this matter, No. 21-01-92 and the Guardianship Act, 20 PA CSA 5511. VI. REOPEN PROCEEDING TO TAKE ADDITIONAL EVIDENCE In the alternative, Your Movant requests The Court to re-open this proceeding, Guardian of the Person, to consider evidence of whether it would have been harmful to the alleged incapacitated person to have her present in the courtroom during the October 8, 2001 and December 19, 2001 hearings, as follows: 43. Paragraphs 1 through 42 are incorporated herein by reference as if set forth in full. 44. If the Court were to find that alleged incapacitated person should have been present throughout this proceeding (Petition for Guardian of the Person), Petitioner respectfully moves and requests that this Honorable Court re-open the proceeding to receive evidence from a physician or licensed psychologist on whether or not it would have been harmful to the alleged incapacitated person to be present in the courtroom. WHEREFORE, The Petitioner respectfully moves and requests this Honorable Court to open the record in this Guardianship of the Person proceeding to receive evidence from a physician or licensed psychologist on whether or not it would have been harmful to the alleged incapacitated person to be present in the courtroom. WHEREFORE, The Petitioner respectfully requests this Honorable Court to appoint Frederick E. Gerber, II, as Guardian of the Person of Mildred J. Gerber, in accordance with the overall testimony in this matter, No. 21-01-92 and the Guardianship Act, 20 PA CSA 5511. 45. Jacqueline Verney, Esquire, legal counsel for the alleged incapacitated person joins in this Motion. 46. Stanley J. Laskowski, legal counsel for the Respondent / Protestant has not consented to this Motion as of time of filing. Respectfully Submitted, ~Richard C. Rupp, Esquire Sup. Court I.D. No..' 34832 355 North 21st Street, Suite 205 Camp Hill, PA 1 7011 (71 7) 761-3459 Attorney for Petitioner 17 VERIFICATION I, the undersigned, attorney forPetitioner Frederick E. Gerber, II am familiar with the facts in the foregoing Motion and verify the averments in the foregoing Motion are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. 4909 relating to the unswornfalsification to ' '~. Date: ~' ~. I ' Jl, J Richard C. Rupp, Esquire, Movant 18 CERTIFICATE OF SERVICE I, Richard C. Rupp, Esquire, attorney for Fred E. Gerber, II, Movant, hereby certifies that on December 21,2001, I served a copy of the foregoing Motion on the following person, by depositing same in the United States mail, postage prepaid, addressed to.' Stanley J. Laskowski, Esquire Caldwell & Kearns, P.C. 3631 N. Front St. Harrisburg, PA 1 7110-1533 Amy J. Mendelsohn, Esquire Rhoads & Sinon, LLP Twelfth Floor One South market Square P. O. Box 1146 Harrisburg, PA 17108-1146 Jacqueline M. Verney, Esquire 44 S. Hanover St. Carlisle, PA 1 7013 Jane N. Heflin 270 N. Garfield Lombard, IL Ric lard C. Rupp, Esquire - :t.I -'o I Date: 19