HomeMy WebLinkAbout02-05-03IN RE: : IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
APPOINTMENT OF A :
GUARDIAN OF THE PERSON OF : ORPHANS' COURT DIVISION
MILDRED J. GERBER, :
an alleged incapacitated person, :
M0vant : NO. 21-01-92
MOTION FOR SUMMARY JUDGMENT
Frederick E. Gerber, II, by his attorneys, Rupp and Meikle and Richard
C. Rupp, move the Court for entry of a Summary Judgment in his favor in this
action under the provisions of Pennsylvania Rule of Civil Procedure 1035.1 et
seq.
I. PETITION FOR CIVIL CONTEMPT IS NOW MOOT.
1. Pursuant to a Petition of Marilyn Jo Gerber filed to the above number,
the Court entered an Order dated December 18, 2002 against
Frederick E. Gerber, II, to show cause why he should not be
adjudicated in contempt for failing, in his capacity as guardian of the
person of Mildred J. Gerber, to allow Marilyn Jo Gerber access to
Mildred J. Gerber as provided for in an Order of March 25, 2002. The
Petition of Marilyn Jo Gerber prays at paragraph B on page 10 that
the Court direct a finding of contempt of the Guardian (Frederick E.
Gerber, II) for non-compliance with the Order of Court dated March 25,
2002.
2. The Petition of Marilyn Jo Gerber prays at paragraph B on page 10
that the Court direct a finding of contempt of the Guardian (Frederick
E. Gerber, II) for non-compliance with the Order of Court dated March
25, 2002.
3. The Respondent filed an Answer to the Petition contemporaneously
with this Motion.
4. The prayer for contempt is for civil contempt and not criminal contempt
because the dominant purpose of the proceeding is to enforce
compliance with a Court Order to the benefit of Marilyn Jo Gerber,
Petitioner, a private party.
5. Proceedings to enforce compliance with a Court Order are considered
civil in nature when the alleged act of contempt complained of is a
refusal to do or refrain from doing some act ordered or prohibited
primarily for the benefit of a private party. John Rulli v. Daniel T.
Dunn, et al, 337 Pa. Super. 613; 487 A.2d 430 (1985) at page 431.
6. The purpose of a civil contempt citation is a remedial one to coerce the
alleged contemnor into compliance with the Order of Court. Supra at
paqe 431.
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7. Mildred J. Gerber died January 14, 2003 (Death Certificate attached as
Exhibit "A"; therefore, proceedings to enforce compliance of this
Court's Order of March 25, 2002 are moot.
WHEREFORE, based on the Petition, Answer and Death Certificate,
there is no genuine issue as to any material fact and Frederick E. Gerber, II,
is entitled to judgment in his favor as a matter of law.
II. COLLATERAL ESTOPPEL
8. The Respondent incorporates his answers in paragraphs I through 7 of
his Motion, as if set forth in full.
9. In the alternative, the Respondent, Frederick E. Gerber, Guardian of
the Person of Mildred J. Gerber, avers as follows in support of his
Motion for Summary Judgment.
10. The Petitioner in her Petition complains basically of two things:
A. Since the July 9, 2002 Petition she had previously filed with this
Honorable Court that her access visits were cancelled, denied,
ordered or not responded to for the following dates by the
Guardian: July 10 and 26, 2002; September 3 and 4, 2002; and
October 8, 2002. Paragraph 13 of Petitioner's Petition, and,
3
B. Petitioner complains the Guardian procured an EX-PARTE Order
from the State of Illinois Circuit Court for the 8th Judicial Circuit
dated October 29, 2002 terminating visitations for an eight week
period pending further hearing. Paragraph 41 of Petitioner's
Petition.
11. It was the Petitioner who filed this Honorable Court's Order dated
March 25, 2002 in the Du Page, IL, Court EX-PARTE. See Paragraph 33
of Petitioner's Petition and see Certified/Authenticated Du Page
County, IL, Court Record, attached hereto and incorporated herein by
reference as Exhibit "B".
12. Petitioner utilized Illinois counsel John O'Halloren, Esquire, of Chicago,
IL, to file this Honorable Court's Order of record in the Du Page County,
IL, Court (See Petitioner's Petition paragraph 33, see also
Certified/Authenticated Du Page County, IL, Court Record).
13. Pursuant to Illinois law (735 ILCS 5/12 - 652) allowing enforcement of a
foreign Court's judgment or Order, Petitioner went into the Du Page
County, IL, Court with legal counsel and obtained a new Order
MODIFYING this Honorable Court's Order from the Du Page County, IL,
Court, which new Order was dated October 11, 2002 and was issued
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EX-PARTE against both the Guardian of the Person and the Sunrise
Assisted Living Center. A copy of the Illinois law and an applicable
case are attached hereto and incorporated herein by reference as
Exhibit "C". A copy of the new Court Order dated October 11, 2002 is
attached hereto and incorporated herein by reference as Exhibit "D".
14. The said new Order dated October 11, 2002 issued EX-PARTE pursuant
to a Motion filed by Petitioner Marilyn Jo Gerber modified this
Honorable Court's March 25, 2002 Order as follows:
A. The Du Page County, IL, Court Order dated October 11, 2002,
was directed also against Sunrise of Glen Ellyn, a/k/a Sunrise
Assisted Living, its agents, employees and any other person,
entity or facility that may have the care or custody of Mildred
Gerber.
B. Said Order granted Marilyn Jo Gerber four continuous hours of
visitation each week - without any restrictions, and,
C. Said Court Order allowed Marilyn Jo Gerber four continuous
hours of visitation each week - without any interferenc~ and,
D. Said Court Order allowed Marilyn Jo Gerber four continuous
hours of visitation each week - without any supervision.
5
15. The Du Page County, IL, Court Order modified this Honorable Court's
March 25, 2002 Court Order by changing the conditions for the access
visits and effectively removing the plenary Guardian's powers to
protect the ward, a dementia / Alzheimer's patient, from any
reasonable restrictions or supervision.
16. The removal of any and all restrictions on access visits, the removal of
any and all supervision for access visits and the unfettered access of
Marilyn to the ward was a tremendous concern to the Guardian by
reason of Marilyn's history of conduct against the ward including a
prior jury conviction for criminal trespass, a Cumberland County Court
Order for a civil injunction preventing access by Marilyn to Mildred
and repeated concerns made known to the Guardian over the years
from Mildred Gerber.
17. This Honorable Court was aware that the plenary Guardian was
providing supervision to the access visits as said supervision was
raised as an issue in Petitioner's prior Petition dated July 12, 2002,
which this Honorable Court deferred and it was also re-raised by the
Respondent, the Guardian of the Person, in his Petition for interruption
of the access visits which the Court denied by Order dated July 29,
2002.
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18. In the July 29, 2002 Court Order, this Honorable Court quoted in a
footnote from the supervisory notes as the grounds for denial of the
requested hearing by the Guardian of the Person.
19. The Petitioner, Marilyn Jo Gerber, in order to obtain the Du Page
County, IL, Court Order modifying this Honorable Court's March 25,
2002 Order, filed an Emergency Motion EX-PARTE on October 11, 2002
in the Du Page, IL, Court to Docket No. 2002MR973. In that Emergency
Motion, the Petitioner referred to this Honorable Court's Order and its
being registered and filed in the Du Page County Court on September
19, 2002, to the above-referenced Docket No. (Paragraph 2 of
Petitioner's Illinois Emergency Motion, see Certified/Authenticated Du
Page County, IL, Court Record)
20. In paragraph 6 of the Petitioner's Emergency Motion filed on October
11, 2002 EX-PARTE in the Du Page County, IL, Court, Petitioner alleged
that she had flown to Chicago on two prior occasions and arrived at the
Sunrise Assisted Living Center of Glen Ellyn to visit with her mother and
had been prevented from doing so on instructions of the Guardian.
Petitioner in her Emergency Motion dated October 11, 2002 averred
"that personnel at Sunrise Assisted Living Center of Glen Ellyn have
been given instructions by Mildred Gerber's Guardian to have the
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visits supervised, sometimes removing Mildred Gerber to a hotel for a
visit and limiting the days or times of the visit" (Paragraph 4 of said
Emergency Motion filed on October 11, 2002. See
Certified/Authenticated Du Page County, IL, Court Record).
21. The Petitioner in her October 11, 2002 Motion filed with the Du Page
County, IL, Court, requested the Du Page County, IL, Court to enter an
Order compelling Sunrise Assisted Living Center of Glen Ellyn, or any
other person, entity or facility that may have the care of Mildred
Gerber in the State of Illinois to comply with the March 25, 2002 Order,
allowing her four continuous hours a week visitation with her mother,
Mildred Gerber - but added "without any restrictions, interference or
supervision". This last part was a significant modification of this
Honorable Court's March 25, 2002 Order and this said modification
was a definite departure from the course of conduct the parties had
established for the access visits over the prior eight months, instead of
seekinq relief from this Honorable Court, the Petitioner sought relief
from the Du Page County, IL, Court.
22. However, based on Respondent's conduct and behavior, Sunrise
Assisted Living Center and the Guardian now involved in a Du Page
County, IL, Court proceeding regarding the rights of Mildred Gerber
8
and the protection of not only Mildred Gerber but also the Sunrise
Assisted Living Center staff and the other patients at the Sunrise
Assisted Living Center, jointly went into the Du Page County, IL, Court to
reverse the October 11, 2002 EX-PARTE Du Page County, IL, Court
Order and obtain an injunction based on Marilyn Jo Gerber's conduct
in Chicago against Mildred J. Gerber, against the Sunrise Assisted
Living Center staff and against the Sunrise Assisted Living Center
patients. (See Certified/Authenticated Du Page County, IL, Court
Record)
23. Some examples of Petitioner Marilyn Jo Gerber's conduct were that:
A. Marilyn Jo Gerber when unsupervised, took mother to her room,
stripped her clothes off and photographed Mildred J. Gerber;
(see Emergency Motion to Vacate October 11, 2002 Order in
certified authenticated Du Page County, IL, Court Record.)
B. Marilyn Jo Gerber prevented mother from going to the bathroom
during one of her visits which caused Mildred J. Gerber to soil her
clothing. (See Emergency Motion to Vacate Octover 11, 2002
Order in certified authenticated Du Page County, IL, CourtRecord.)
24. On October 29, 2002, the Du Page County, IL, Court issued an EX-
PARTE Order granting an injunction to both Sunrise Assisted Living
Center and the Guardian of the Person preventing Marilyn Jo Gerber
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from visiting Mildred J. Gerber at the Sunrise Assisted Living Center for
a period of eight weeks.
25. The Petitioner then filed the instant Petition before this Honorable
Court on or about December 12, 2002 seeking to reverse the Du Page
County, IL, Court Order of October 29, 2002, and re-initiate the visits
which the Petitioner had obtained through the Du Page County, IL,
Court, but on at will basis, without any notice, prior arrangement,
supervision or interference. On December 18, 2002, Petitioner filed, in
Illinois, through her Chicago counsel, O'Halloren, a Motion to Vacate
the same October 29, 2002 Du Page County, IL, Court Order stating to
the Du Page County, IL, Court that:
"Marilyn's visitation rights with her mother were greatly
contested before she was allowed visitation in the March 25,
2002 Order, and they have continued to be contested to the
present time".
(Page 3 of Petitioner's Memorandum in Support of Motion to Vacate
filed December 18, 2002 in the Du Page County, IL, Court Record -
Instrument No. 7990 in Certified Authenticated Record of Du Page
County, IL, Court)
10
26. In the same Memorandum in Support of Motion to Vacate, Petitioner
stated:
"Frederick took advantage of his role as Mildred's Guardian and
imposed and created many rules and restrictions on Marilyn's
visits. Frederick only allowed visits when he felt they could fit
into Mildred's schedule and ignored Judge Bayley's Order
allowing for visits according to Marilyn's schedule. Frederick
required thirty days notice of Marilyn's proposed visits and
waited until the last minute to give approval. Once the visits
were granted, he moved Mildred from
her familiar environment, often times to a hotel and had a third
party to supervise the visits". (Page 3 of Petitioner's
Memorandum in Support of Motion to Vacate. Supra.)
27. The Petitioner, Marilyn Jo Gerber, in her Du Page County, IL,
Memorandum in Support of Motion to Vacate, filed on December 18,
2002, raised the same issues that she raised in her Petition to this
Honorable Court filed on December 12, 2002.
28. The Du Page County, IL, Court denied on December 20, 2002
Petitioner's Motion to Vacate the October 29, 2002 Order and
therefore Petitioner, being unsuccessful in the Illinois Court, proceeded
for relief through this Court after having voluntarily and deliberately
initiated proceedings against both Sunrise and Fred Gerber in Illinois
and voluntarily and deliberately participated in proceedings on the
same matters and same issues in Du Page County, IL, Court.
11
29. By way of further explanation, the Guardian when advised of his
mother's terminal condition, had his Chicago counsel offer access visits
to Marilyn if the access visits went well. The access visits went well on
January 7, 2003 but not on January 8, 2003 and Sunrise Assisted
Living petitioned the Court to terminate the visits permanently which
Du Page County, IL, Court did by its final Order dated January 9, 2003.
A copy of said Order is attached hereto and marked as Exhibit "E" and
incorporated herein by reference.
30. For the foregoing reasons, as these same matters were disposed of
and ruled upon with by the Du Page County, IL, Court, the Petitioner is
collaterally estopped from raising the same issues in this Honorable
Court.
31. In addition to asking the Du Page County, IL, Court to vacate its own
October 29, 2002 Court Order, the Petitioner could also have asked for
Contempt on the same grounds raised against Respondent, Frederick
E. Gerber, Guardian of the Person. However, she did not. Petitioner is
collaterally estopped with respect to the same issues before this
Honorable Court.
12
WHEREFORE, based on the Petition, Answer, Death Certificate and
Certified/Authenticated Du Page County, IL, Court Record, there is no
genuine issue as to any material fact and Frederick E. Gerber, II, is entitled
to judgment in his favor as a matter of law.
III. RES JUDICATA
32. Respondent incorporates his answers in paragraphs I through 31 of
his Motion, as if set forth in full.
33. In the alternative, the Respondent Frederick E. Gerber, II, Guardian of
the Person of Mildred J. Gerber, avers as follows in support of his
Motion for Summary Judgment:
34. The Du Page, IL, Court ruled against the Petitioner Marilyn Jo Gerber
with respect to reestablishing visitation on both December 20, 2002
and finally again on January 9, 2003.
35. For the foregoing reasons, the matters complained of either were
raised or could have been raised and were decided by another Court,
the Du Page County, IL, Court.
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36. For the foregoing reasons, the matters complained of Petitioner's
Petitioner are res judicata.
WHEREFORE, based on the Petition, the Answer, the Death Certificate
and the Certified Authenticated Duplicated Du Page County, IL, Court Record,
there is no genuine issue as to any material fact and Frederick E. Gerber is
entitled to judgment in his favor as a matter of law.
Respectfully submitted,
Date: ~/~"'//~ ~ By:-,_ .......
Rich~ard C. RuPl~, Esquire~ ~
Supreme Ct ID No. 34832
355 North 21st Street, Suite 205
Camp Hill, PA 17011
717-761-3459
Attorney for Movant
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VERIFICATION
I, Richard C. Rupp, Esquire, attorney for Movant, verify that the
statements in the foregoing Motion for Summary Judgment are true and
correct to the best of my knowledge, information and belief. Said statements
are based on Movant's own knowledge, belief or information provided to
Richard C. Rupp. Said Motion for Summary Judgment is filed by Richard C.
Rupp, for Movant, as Movant is outside of the Court's jurisdiction and is
unavailable to sign this verification to file this Motion.
I understand that false statements herein are made subject to
penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to
authorities.
Attorney for Movant
Date: ~~~
DECEDENT'S BIRTH NO.
REGISTRATION 22.0 STATE OF ILLINOIS STATE FILE
DISTRICT NO. NUMBER
REGISTEREI[~I,/'~.I #' .l~- MEDICAL CERTIFICATE OF DEATH
r~ ~t In ~ DECEASE~NAME FIRST MIDDLE ~ST ~SEX ~DATEOFDEATH (MO~H, DAY, YEAR}
~F~~ ~. Mildred J. ~erber ]z ~omm]~13 January 14, 2003
~1,~1~INJmU~SH.~ ~ COU~ OF DEATH 4. DuPage J mRTH~Y {~.S)AGE-LAST Sa. ~ UNDER 1Y~R ~ UNDER 1DAY 5b ~s. DAYS 5C. H~ MIN. IDATE OF BIRTH {MONTH' DAY' YEAR} ~. November
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ClTY, TOWN,~P, OR ROADDISTRICTNUMBER HOSP~ALORO~ERINSTITUTION~AMF(IF~TINE~ER, GIVESTREETANDN~ER) ~/EMER RM, INPA~ENT (~CIFY
A ......... 6a. Glen Ellyn J6b. Sunrise Village ~. Inpatient
81RTH~CE (CIWANOSTATE~ IMARR,EO, NEVERMARR,ED, ~IN~EOFSURVIVINGSPOUSE {~IDENN~.IFWIFE} Iw~cEAs~o~"'"us
7. Grafton~ W.VA. 8a. Widowed 8b. 9.
B ............. SOCIAL SECURI~ NUMBER USUAL OCCUPATION KIND OF BUSINESS OR INDUSTRYE~/~a~ (~ I 2)EDUCATION (SPECIFY ~LY HIGHEST GRADE C~PLETED)i ~(1-4~5+)
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D ............. RESIDENCE (STREET AND N~ER)
E............. 13a. 623 Hilltop Dr. ~1~. New Cumberland
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INFMANT'SNE ~PE~PRI~ [RE~T~NSHIP ~ILINGADDRESS (S[~O~.~R. FD..CITYORT~.STATE. ZIP)
1 ............. 117a. Frederick Gerber II ~17b. Son 17c.4287 Kearn~ Ln., Fairfax, VA 22033
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TO ~E BEST OF MY K~E~E, D~AT~CURRED AT THE T ME. DATE ~D ~CE AND DUE TO ~E CAUSE(S) ~A~D. DATE SIGNED (~%H. DAY, YEAR)
NAME A~ ADDRESS ~ CERTIFIER
(~PE ~ ~ ILLI~IS L~ENSE NUMBER
NAME OF A~ENOING PHYSICIAN IF OTHER THAN CERTIFIER ~PE ~ ~1~ ~: IFAN I~RY WAS INVOLVED IN THIS
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BURIAL, CREMATION, CEMETERY OR CREMATORY-NAME ~ L~ATI~ CI~ ~N STATE I DATE IMONTH,
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~S,. Brust Funeral Home, 615 ~. Gary Avenue, Carol Stream, I1. 60188
FUNERAL DIRECTOR'S S~NATUR~ ~ I FU~R~ DIRECTOR S Itl I~IS LrCENSE NU~/R
VR~ (R~. ~8~ II~n~ ~p~nt ~ ~ ~IN~ ~ V~l ~dS (BASED~ I~U S STANOARDC~RTWICA~E)
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I~pal'tlll~llt Wheaton, Illinois 60187
This is to certify that this is a true and correct copy of the official
record filed with the Illinois Department of Public Health.
~~.~ ~ Local Registrar Sot valid withottt tlte embossed seal t)f
DuPage County Health Department
IN RE: : IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
APPOINTMENT OF A GUARDIAN :
OF THE PERSON OF :
MILDRED J. GERBER, : ORPHANS COURT DIVISION
an alleged incapacitated person, :
:
: NO. 21-01-92
ANSWER TO PETITION TO VACATE ORDER AND FOR REVIEW HEARINC
1. Admitted.
2. Admitted up to January 14, 2003, on which date Mildred J. Gerber
passed on and the Guardianship of the Person terminated by reason
of her death.
3. Admitted.
4. No answer is required as the Court's Order speaks for itself.
5. No answer is required as said Petition of Marilyn Jo Gerber speaks for
itself.
6. No answer is required as the said Court Order dated July 12, 2002
speaks for itself.
7. No answer is required as the PA Statute speaks for itself.
8. No answer is required as the Petition of Marilyn Jo Gerber speaks for
itself. To the extent an answer is required, the averments of
paragraph 8 are denied. To the contrary, the averments constitute a
conclusion of law and therefore are denied.
9. Denied. No answer is required. As to the averments of paragraph 9
of Respondent's Petition constitute a conclusion of a law. To the extent
that the averments in paragraph 9 of Respondent's Petition do not
constitute a conclusion of law, they are denied. It is denied that the
capacity of Mildred J. Gerber has significantly improved. To the
contrary, the capacity of Mildred J. Gerber significantly declined in the
period from July 9, 2002 through January 14, 2003. In fact, Mildred J.
the Guardian cooperated with every effort to grant the access visits
requested by Marilyn Gerber to visit their mother, while at the same
time balancing the interests of his mother for her safety, well-being
and protection, as are the duties of a plenary Guardian. By way of
further answer, said averments are now irrelevant and moot by reason
of Mildred J. Gerber passing on on January 14, 2003.
13. Denied. It is denied that since July 9, 2002 Petition, access visits were
cancelled, denied, ignored or not responded to for the following dates
by the Guardian: July 10 and 26, 2002, September 3 and 4, 2002 and
October 8, 2002. To the contrary, the Guardian recalls and therefore
believes that the Guardian acknowledged and allow the July 10 visit to
occur but that the Petitioner failed to show up without any reason nor
notice to the Guardian. The Guardian recalls and therefore believes
that the July 26, 2002 visit could not occur because of medical reasons
and on advice of Mildred J. Gerber's treating physicians. With respect
to September 3 and 4, 2002, the Guardian recalls and therefore
believes that said visits were requested by the Petitioner with
extremely short notice and therefore said visits could not be set up for
the Petitioner's benefit. However, visits were acknowledged and set up
for August 7, 14, 21, September 9, 16, 23, and October 1, 2002, and
the Petitioner did not request visits for the week of August 28, 2002.
By way of further answer, the Petitioner set up a visit for October 1,
2002, which the Guardian acknowledged and accepted but the
Petitioner did not show up without any notice to the Guardian. By way
of further answer, said averments are either now res judicata or
collaterally estopped by reason of Marilyn Jo Gerber's litigation of the
same issues in Du Page County, IL, Court on the same issues. By way of
further answer, said averments are now irrelevant and moot by reason
of Mildred J. Gerber passing on on January 14, 2003.
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14. Admitted in part and denied in part. It is admitted that on or about
December 21, 2001, Mildred J. Gerber was removed from her New
Cumberland residence to visit and then reside with her daughter, Jane
Heflin, in Lombard, IL. It is denied that on or about September 1,
2002, Mildred J. Gerber was moved to the Sunrise Assisted Living
Center of Glen Ellyn, IL (also known as Sunrise Assisted Living Facility
in Glen Ellyn, IL). To the contrary, Mildred J. Gerber was moved to the
Sunrise Assisted Living Center in Glen Ellyn, IL, on or about August 20,
2002.
15. Admitted.
16. Admitted in part and denied in part. It is admitted Jane Heflin with
whom Mildred J. Gerber was staying, would not allow Marilyn Jo
Gerber to visit her home. It is denied that the Guardian failed or
refused to provide information to Petitioner regarding Mildred J.
Gerber's activities at her adult daycare facility or other matters
generally concerning Mildred J. Gerber's daily or weekly routines in
order to facilitate visitation. To the contrary, the Guardian did provide
information to Petitioner regarding certain of Mildred J. Gerber's
appointments which would have interfered with a requested visit by
Marilyn Jo Gerber. By way of further answer, information concerning
Mildred J. Gerber's activities at her adult daycare facility were not
made available as the Guardian did not wish to have visitation
between Marilyn Jo Gerber and their mother, Mildred J. Gerber, at
Mildred's adult daycare facility as those are activities which are meant
to be calming and peaceful without disruption or distraction. The
plenary Guardian of the Person of Mildred J. Gerber realized that
Mildred J. Gerber's activities could not be conducted at the adult
daycare facility in peace, harmony or without disruption if Marilyn Jo
Gerber was visiting at the same time. Marilyn Jo Gerber's actions at
5
the Sunrise Assisted Living Center bear out the Guardian's judgment
on this matter.
17. Admitted.
18. Denied. It is denied that the Guardian continued to demand that the
following conditions be met regarding access visits:
(A) Access visits were to occur only on Mondays, Wednesdays and
Fridays.
(B) Thirty (30) days advance notice requested for visitation dates.
( C ) Access visits were to be conducted only at the Embassy Suites in
Lombard, IL.
(D) No holiday visits be allowed.
(E) Access visitation to be conducted only between 10:00 a.m - 2:00
p.m.
To the contrary, the Guardian did not demand that said conditions be
met regarding the access visits. To the contrary, the Guardian merely
requested for their mother's benefit that such conditions occur, as on
Tuesdays and Thursdays the Guardian was attempting to have their
mother participate in an adult daycare center and participate in
activities for Alzheimer's patients. Further, the weekends were very
active for Mildred and Jane Heflin's family, potentially limiting access
to Mildred Gerber. By way of further answer, the Guardian also
wanted days which were safe to set up appointments with doctors and
other medical providers for the benefit of their mother which could be
assured, which would not have disruption by an access visit. The
Guardian also requested thirty (30) days advance notice of requested
visitation dates but the Petitioner Marilyn Jo Gerber never complied
with this request in implementing her access visits. The access visits
were only conducted at Embassy Suites, Lombard, IL, and when counsel
for Petitioner asked if they could be held elsewhere, counsel for
6
Guardian answered yes, please make a suggestion, but no suggestion
was ever made, except for Jane Heflin's residence, which counsel was
told was an impossibility. The Guardian only requested that holiday
visits not be allowed due to mother visiting with Jane Heflin's family on
holidays, however, this was not a demand. Access visits were
requested to be conducted between 10:00 a.m. - 2:00 p.m., but this
was only a request, and the Petitioner Marilyn Jo Gerber never
complied with this request and the access visits were allowed to occur
at approximately 1:00 p.m. In fact, the Guardian of the Person wanted
the access visits for mom's benefit because mom was better able to
handle the access visits as an Alzheimer's patient earlier in the day
when she was less tired. The Guardian realized this was in her best
interest, but Petitioner Marilyn Jo Gerber, never complied with the
request for her mother's benefit. By way of further answer, the
Guardian believed that these requests were only requests and they
were not demands but they were requests for the benefit of the
incapacitated person. By way of further answer, said averments are
either now res judicata or collaterally estopped by reason of Marilyn Jo
Gerber's litigation of the same issues in Du Page County, IL, Court on
the same issues. By way of further answer, said averments are now
irrelevant and moot by reason of Mildred J. Gerber passing on on
January 14, 2003.
19. Admitted in part and denied in part. The Guardian continued to refuse
to allow Petitioner Marilyn Jo Gerber to accompany Mildred J. Gerber
to any Alzheimer's activities, adult daycare center or any other
activities or otherwise even attend and observe such activities without
Petitioner's participation and this refusal was for the benefit of their
mother, the incapacitated person, as the Guardian had been informed
that such activities for an Alzheimer's patient should be conducted with
7
peace, harmony and without disruption and the Guardian believed
strongly that a visit by Marilyn Jo Gerber with their mother at an
Alzheimer's activity or adult daycare center would be extremely
disruptive. By way of further answer, it is denied that Petitioner
Marilyn Jo Gerber had the right to accompany Mildred J. Gerber to
any Alzheimer's activities, adult daycare center or any other activities
or otherwise attend and observe such activities. To the contrary, this
Honorable Court did not Order the Guardian to allow the Petitioner
Marilyn Jo Gerber to accompany Mildred J. Gerber to any Alzheimer's
activities, adult daycare center or any other activities and the
Guardian as plenary Guardian of the incapacitated person used his
judgment for the best benefit of their mother. The averments of
Respondent in paragraph 18 above are incorporated herein by
reference.
20. Admitted in part and denied in part. It is admitted that Petitioner
Marilyn Jo Gerber continued to request that visits occur primarily
between 1:00 p.m. - 5:00 p.m. It is denied that these were to occur on
dates when Petitioner could accommodate her work schedule. To the
contrary, the Guardian believes that Petitioner Marilyn Jo Gerber may
have been in Chicago on at least one date even though she insisted
the access visit occur the next day at 1:00 p.m. instead of 10:00 a.m.
Furthermore, the Guardian was never provided with Petitioner's work
schedule. Furthermore, despite a review of the available flights from
Harrisburg International Airport to Chicago, which would have allowed
the Petitioner Marilyn Jo Gerber to visit with her mother at the
preferred 10:00 a.m. time Chicago time, the Petitioner consistently
rejected said times and the Guardian allowed access visits at 1:00 p.m.
By way of further answer, after their mother was moved into the
Sunrise Assisted Living Center, Marilyn Jo Gerber stopped making
8
appointments for access visits and started showing up without notice at
her mother's Assisted Living Center in Glen Elynn, IL, contrary to the
wishes of the Guardian of the Person.
21. Denied. It is denied that Petitioner remains willing to support, attend
and assist in any of the daily activities of Mildred J. Gerber during
visitations. To the contrary, the Petitioner spent her visits especially at
the Sunrise Assisted Living Center arguing with staff, berating the staff,
disrupting the harmony at the Sunrise Assisted Living Center and by
way of further answer, by reason of Mildred J. Gerber's passing on,
this averment is now moot and irrelevant.
22. Denied. It is denied Petitioner continues her employment as a per
diem nurse engaged in 8 or 12 hour shifts including evenings,
weekends and nights, Petitioner receives less than 2 weeks of notice to
schedule work shifts, Petitioner often still works a 5 day week schedule
allowing limited interim time to travel, the Guardian's imposition of a
10:00 a.m. was unreasonable and excessively demanding on
Petitioner. To the contrary, as the Respondent Frederick E. Gerber, II,
is without sufficient knowledge or information to form a belief as to the
truth of these averments, they are denied and strict proof at trial is
demanded. By way of further answer, the Petitioner Marilyn Jo Gerber
nor her counsel ever provided any information on her employment. By
way of further answer, by reason of Mildred J. Gerber's passing on,
this averment is moot and irrelevant.
23. Denied. It is denied that Petitioner, at her sole expense, had arranged
single day travel to Chicago for purposes of conducting the visitation
with her mother in accordance with the Court Order of March 25, 2002.
After reasonable investigation, the Respondent Frederick E. Gerber is
without sufficient knowledge or information to form a belief as to the
truth of this averment and strict proof at trial is demanded if relevant.
9
By way of further answer, by reason of Mildred J. Gerber's passing on,
this averment is moot and irrelevant.
24.Denied. It is denied that as a result of the Guardian's scheduling
requirements and the accommodations imposed by the Guardian at
the location of each visit, all visitations prior to September 1, 2002
were terminated less than the 4 hours as directed by the Court in its
Order of March 25, 2002 except for August 14 and 21, 2002. The
remaining visitations varied in length from 2 hours to 3 hours in
duration. To the contrary, by reason of Mildred J. Gerber's agitation at
the visit of her daughter, the visits were concluded usually by Marilyn
Jo Gerber, the Petitioner, rather than by the Guardian. By way of
further answer, after their mother was moved into the Sunrise Assisted
Living Center, Marilyn showed up without notice and often visited her
mother for longer than 4 hours. By way of further answer, said
averments are either now res judicata or collaterally estopped by
reason of Marilyn Jo Gerber's litigation of the same issues in Du Page
County, IL, Court on the same issues. By way of further answer, said
averments are now irrelevant and moot by reason of Mildred J. Gerber
passing on on January 14, 2003.
25. Admitted in part and denied in part. After the July 9, 2002 Petition,
visitations with Mildred J. Gerber were confined to a small Embassy
Suites Hotel, personally supervised by the presence of Jane Heflin and
a private social worker or long-term care managers, Warren and
Sanders of Glen Ellyn, IL, engaged by the Guardian. To the contrary,
after July 9, 2002, Jane Heflin was present only for some of the visits,
and all of the visits occurred at the Embassy Suites Hotel until
September, when the visits started to occur at the Sunrise Assisted
Living Center. They were supervised until Marilyn Jo Gerber obtained
a Court Order on October 11, changing this Honorable Court's Order
10
and directing that the visits at the Sunrise Assisted Living Center be
unsupervised.
26.Denied. It is denied that Jane Heflin who attended and supervised the
visitation continued to exhibit hostile negative and derogatory
comments about and toward Marilyn Jo Gerber concerning the
visitations and she encouraged, created or agitated verbal and
physical conflict with Petitioner, conducted personal business during
and to the disruption of the visits and provoked early termination of
visits all in the presence of Mildred J. Gerber and contrary to her best
interests resulting in unnecessary and undue agitation, influence and
confusion to Mildred J. Gerber. To the contrary, Jane Heflin who has
had an excellent relationship with her mother was present for some
but not all of the visits for the benefit and well-being of their mother.
To the contrary, Jane Heflin did not attend or supervise all the
visitations. To the contrary, it was Marilyn Jo Gerber who created the
agitated verbal and physical conflict and to the contrary, it was Marilyn
Jo Gerber who provoked early termination of visits because of her best
interests in order to minimize and remove agitation and confusion to
the incapacitated person, Mildred J. Gerber. By way of further answer,
said averments are either now res judicata or collaterally estopped by
reason of Marilyn Jo Gerber's litigation of the same issues in Du Page
County, IL, Court on the same issues. By way of further answer, said
averments are now irrelevant and moot by reason of Mildred J. Gerber
passing on on January 14, 2003.
27. Admitted in part and denied in part. It is admitted Petitioner
requested Marilyn Gerber to visit their mother at the adult daycare
center and at Jane Heflin's home - it as admitted that these requests
were refused. The remaining averments are denied. It is denied that
Petitioner requested to allow visitations to include activities such as
11
walks with their mother, either in the hotel or outside, or other
locations weather permitting, shopping for clothes or other items. To
the contrary, counsel for both parties discussed this and counsel for
Guardian asked that said request be put into writing which they never
were. By way of further answer, the nature of the visits changed after
September 2002 when their mother was placed into the Sunrise
Assisted Living Center and at that point Marilyn Jo Gerber obtained a
Court Order on October 11, 2002, directed against Sunrise and the
Guardian to allow visits without notice to be unsupervised and
uninterrupted. At the time that occurred, no further requests were
made regarding visitations to the Guardian. By way of further answer,
as Mildred J. Gerber, the incapacitated person, has passed on, these
averments are moot and no answer is required.
28. Denied. It is denied that the visitation requirements imposed by the
Guardian to the confinement to a hotel room created an oppressive,
estranged, disoriented, isolated and personal environment contrary to
the best interests of Mildred J. Gerber but served to create anxiety,
frustration, agitation and interference with the development of the
meaningful personal visit and interaction by the Petitioner with her
mother contrary to the best interests and the physical condition of
Mildred J. Gerber. To the contrary, the visitation requirements
imposed by the Guardian were in the best interests of the
incapacitated person in the judgment of the plenary Guardian of the
Person. Said visitation requirements at the hotel were imposed in
order to minimize the anxiety, frustration, agitation, which the
Guardian observed in visits between Petitioner Marilyn Jo Gerber and
their mother. Plus in observing the visits, the Guardian noted that
their mother, Mildred J. Gerber, appeared to desire to have other
personal contact with other persons other than Marilyn Jo Gerber
12
during those visitations as Mildred J. Gerber would consult and discuss
things with other people due to an apparent agitation created by
Marilyn Jo Gerber to their mother.
29.Admitted in part and denied in part. It is admitted that on or about
September 6, 2002, Petitioner Marilyn Jo Gerber was informed that the
requested visit for September 9, 2002 would occur at a new location,
Sunrise Assisted Living Center at 95 Carleton Ave., Glen Ellyn, IL, from
1:00 p.m.. 5:00 p.m. (CDT). It is admitted that the visitation was
attended by Joan Jackson who was engaged by the Guardian of the
Person. It is admitted that representatives of the facility at Sunrise
called local police to remove Petitioner Marilyn Jo Gerber from the
premises of Sunrise. It is denied that representatives of the facility at
Sunrise called the police for merely the purpose of removing Petitioner
from the premises. It was because Petitioner Marilyn Jo Gerber had
become disruptive and agitative toward their patient, Mildred J.
Gerber. In fact, the staff found Mildred J. Gerber naked in the
bathroom being photographed by Petitioner Marilyn Jo Gerber. This
was after 5:00 p.m., after the 4 full hours, and when asked to leave
Marilyn Jo Gerber refused and therefore the police were called.
30. No answer is required as said September 13, 2002 letter of counsel
speaks for itself. However, visits were acknowledged and set up for
August 7, 14, 21, September 9, 16, 23, and October 1, 2002, and the
Petitioner did not request visits for the week of August 28, 2002. By
way of further answer, the Petitioner set up a visit for October 1, 2002,
which the Guardian acknowledged and accepted but the Petitioner did
not show up without any notice to the Guardian. By way of further
answer, said averments are either now res judicata or collaterally
estopped by reason of Marilyn Jo Gerber's litigation of the same issues
in Du Page County, IL, Court on the same issues. By way of further
13
answer, said averments are now irrelevant and moot by reason of
Mildred J. Gerber passing on on January 14, 2003.
31.Admitted in part and denied in part. It is admitted that on or about
September 15, 2002, Petitioner communicated with the Guardian and
counsel advising that it was her belief it was unsafe to remove Mildred
J. Gerber to the Embassy Suites Hotel. The remaining averments are
denied. It is denied that the Guardian recalls that as a result of the
actions of the Guardian and counsel, Petitioner could not participate in
such a detrimental activity and Petitioner was entitled according to the
March 25, 2002 Order of Court to see her mother where she was
located at Sunrise. To the contrary, as the Petitioner Marilyn Jo Gerber
did not make her communications clear, her mother was made
available as promised per the Court Order at the location chosen by
the Guardian, Embassy Suites Hotel, but the Petitioner Marilyn Jo
Gerber failed to show up for a visit with her mother. Furthermore by
way of answer, the Guardian took a much more expansive view of the
March 25, 2002 Order which speaks for itself however the plenary
Guardian of the Person, Frederick E. Gerber, II, understood and
interpreted the Court Order to be where mother was located, meaning
in what geographical area rather than what bedroom their mother
was sleeping in. By way of further answer, these averments are now
irrelevant and moot as mother has passed away on January 14, 2003.
32. Admitted in part and denied in part. It is admitted that the Guardian
refused to make Mildred J. Gerber available on September 16, 2002 at
Sunrise Assisted Living Center. It is denied that the Guardian failed
and refused to make Mildred J. Gerber available to Marilyn Jo Gerber,
the Petitioner, on September 16, 2002 per the Petitioner's request. To
the contrary, the Guardian did in fact offer and make Mildred J.
Gerber available on September 16, 2002 in accordance with the
14
Court's March 25, 2002 Order but it was Marilyn Jo Gerber who failed
or refused to show up for her scheduled visit with their mother. By way
of further answer, these averments are now irrelevant and moot as
their mother has passed away on January 14, 2003. However, visits
were acknowledged and set up for August 7, 14, 21, September 9, 16,
23, and October 1, 2002, and the Petitioner did not request visits for
the week of August 28, 2002. By way of further answer, the Petitioner
set up a visit for October 1, 2002, which the Guardian acknowledged
and accepted but the Petitioner did not show up without any notice to
the Guardian. By way of further answer, said averments are either
now res judicata or collaterally estopped by reason of Marilyn Jo
Gerber's litigation of the same issues in Du Page County, IL, Court on
the same issues. By way of further answer, said averments are now
irrelevant and moot by reason of Mildred J. Gerber passing on on
January 14, 2003.
33. Admitted in part and denied in part. It is admitted that legal counsel
John O'Halloran, Esquire, of Chicago, IL, began to represent Petitioner
Marilyn Jo Gerber on or about September 18, 2002. As the
Respondent/Guardian of the Person is without sufficient knowledge or
information to form a belief as to the truth of the remaining
averments, they are denied and strict proof at trial is demanded. By
way of further answer, it is averred that these averments are irrelevant
by reason of their mother passing away on January 14, 2003. By way
of further answer, said averments are either now res judicata or
collaterally estopped by reason of Marilyn Jo Gerber's litigation of the
same issues in Du Page County, IL, Court on the same issues. By way of
further answer, said averments are now irrelevant and moot by reason
of Mildred J. Gerber passing on on January 14, 2003.
34. Admitted in part and denied in part. It is admitted that on September
15
23, 2002, Petitioner Marilyn Jo Gerber traveled to Chicago to Sunrise
to visit her mother. The remaining averments are denied. To the
contrary, the Petitioner did not notify the Guardian nor Sunrise that
she would have a visit with her mother on September 23, 2002,
contrary to the entire course of conduct of the parties over the
preceding eight months. Even though the visit was unannounced on
September 23, 2002, Sunrise in consultation with the Guardian allowed
the visit on September 23, 2002 between Marilyn Jo Gerber and
Mildred J. Gerber to occur. During the visit the Petitioner began
taking off the shoes and socks of Mildred J. Gerber. The staff at
Sunrise informed Marilyn that this was against the directions of the
Guardian, at which point Marilyn became verbally threatening to the
Sunrise staff. Sunrise called the local police who intervened in the
situation. Marilyn Jo Gerber continued to demand that her access visit
continue. The police consulted with the Sunrise staff and it was agreed
that if the visit was supervised the visit could continue. At this point, a
person from Sanders and Warren, the geriatric care service which the
Guardian has been using for eight months, sent over a person trained
in geriatric care to supervise the balance of the visit between Marilyn
Jo Gerber and her mother. It is denied that the personnel of Sunrise in
conjunction with the Guardian were hostile, harassive and
confrontational towards Petitioner, endeavored to conclude the visit
and at times conducted such actions in the presence of Mildred J.
Gerber. To the contrary, it was the Petitioner who was hostile,
harassive and confrontational and threatening during the visit and in
fact this visit lasted 45 minutes longer than what this Honorable Court
had allowed in its Court Order. By way of further answer, said
averments are either now res judicata or collaterally estopped by
reason of Marilyn Jo Gerber's litigation of the same issues in Du Page
16
County, IL, Court on the same issues. By way of further answer, said
averments are now irrelevant and moot by reason of Mildred J. Gerber
passing on on January 14, 2003.
35.Admitted in part and denied in part. It is admitted that on or about
October 1, 2002, the Guardian of the Estate, PNC Bank, who controlled
the household goods and personal property of Mildred J. Gerber,
including the furniture and personal effects of Mildred J. Gerber,
removed said household goods and personal property, furniture and
other personal effects of Mildred J. Gerber from her New Cumberland
residence by a moving company and put them into storage. It is
denied that the household goods, personal property, furniture and
other personal effects of Petitioner Marilyn Jo Gerber were removed by
PNC Bank from the residence of Mildred J. Gerber. To the contrary, it
is believed that only property belonging to Mildred J. Gerber, the
incapacitated person, were on premises of Mildred J. Gerber. By way
of further answer, these averments are irrelevant to the Petition for
Review Hearing and therefore they are denied and strict proof at trial
if relevant is demanded. By way of further answer, these averments
are irrelevant and moot by reason of the passing on of Mildred J.
Gerber on January 14, 2003.
36. Admitted in part and denied in part. It is admitted that if the
Petitioner attempted to visit their mother at the Sunrise Assisted Living
Center without prior notice and arrangement with the Guardian,
Sunrise on prior instruction of the Guardian, would have requested the
Petitioner Marilyn Jo Gerber to leave the premises of Sunrise Assisted
Living Center. It is denied that the Petitioner Marilyn Jo Gerber
arranged any visit with the Guardian to visit their mother at Sunrise
Assisted Living Center on or about October 3, 2002. To the contrary,
the Petitioner Marilyn Jo Gerber made no arrangements and gave no
17
notice of any visit occurring on October 3, 2002. By way of further
answer, the Petitioner Marilyn Jo Gerber had scheduled with the
Guardian a visit on October 1, 2002, but Petitioner Marilyn Jo Gerber
failed to show up for the previously scheduled October 1, 2002 visit
where their mother would have been made available to the Petitioner.
As the Guardian is without sufficient knowledge or information at this
time to form a belief as to the truth of the remaining averments of
paragraph 36, they are denied and strict proof at trial is demanded.
By way of further answer, even though the October 3, 2002 visit was
unannounced without any notice to the Guardian nor Sunrise, in
consultation with the Guardian, the visit was allowed to continue, if the
visit was supervised and the visit did continue. However, during the
visit the Sunrise staff attempted to take Mildred J. Gerber to the
restroom in order to allow Mildred J. Gerber to relieve herself.
Marilyn Jo Gerber prevented the Sunrise staff from taking Mildred J.
Gerber to the restroom, which caused Mildred J. Gerber to soil herself
and remained in soiled garments until Marilyn Jo Gerber left the
premises. Apparently the Executive Director of Sunrise, upon learning
that Mildred J. Gerber was prevented from going to the restroom by
the staff, consulted with Sunrise legal counsel and had a letter of
trespass drafted by reason of Marilyn Jo Gerber's conduct against
Mildred J. Gerber. At approximately 6:00 p.m. the police were called
and a letter of criminal trespass was attempted to be delivered to
Marilyn Jo Gerber, Petitioner. The Petitioner apparently ran from the
Sunrise facility but said criminal trespass letter was served by a police
officer in her attempt to leave the area.
37. Admitted in part and denied in part. It is admitted that the Petitioner
Marilyn Jo Gerber obtained a Court Order from the DuPage County, IL,
Court which was entered October 11, 2002, and which directed
18
Petitioner receive four continuous hours of visitation each week without
any restrictions, interference or supervision. Said Court Order is
attached as Exhibit "C" to Petitioner's Petition and speaks for itself. By
way of further answer, it is denied that said Order was obtained as a
result of the actions of the Guardian Frederick E. Gerber, Jane Heflin
and Sunrise. To the contrary, as the Respondent/Guardian of the
Person is without sufficient knowledge to form a belief as to the
averments in paragraph 37, they are denied and strict proof at trial is
demanded. The Respondent cannot speculate as to what caused
Petitioner to go into the DuPage County, IL, Court. However, it is
admitted that the Petitioner Marilyn Jo Gerber went into the DuPage
County, IL, Court on or about October 11, 2002 and obtained an EX
PARTE Order which was against both the Sunrise Assisted Living
Center, but in effect, was against the Guardian of the Person and
effectually changed the Court Order entered by the Honorable Judge
Bayley on March 25, 2002. The Guardian definitely wanted to have
supervision of the visits of Marilyn Jo Gerber by reason of her conduct
on the September 9, 2002 visit which was shocking to the plenary
Guardian of the Person to learn that Marilyn Jo Gerber had taken
their mother into a bathroom, stripped her and started photographing
her.
38. It is admitted that the Order of Court of the Honorable Judge Bayley
dated July 12, 2002 was in certain respects contrary to the DuPage
County, IL, Court Order dated October 11, 2002. It is admitted that
Mildred J. Gerber did not appeal the Court Order of the Honorable
Judge Bayley entered July 12, 2002 with respect to the visitation Order
of March 25, 2002.
39. No answer is required as the Court Order speaks for itself.
40. Denied. It is denied that as Mildred J. Gerber is now residing in an
19
assisted living facility under the supervision of Sunrise of Glen Ellyn, no
basis exists for the presence of the Guardian, her sister, or other
personnel such visitations and accordingly, limitation of visitation by
Petitioner with her mother to four hours per week is not reasonable or
justified. To the contrary, the Guardian desired to have the visits of
Marilyn Jo Gerber supervised for the beneficial care of his ward, their
mother, Mildred J. Gerber. Such desire on the Guardian's part was
made clear when the Petitioner Marilyn Jo Gerber took their mother
into a bathroom, stripped her and photographed her. In addition,
Marilyn Jo Gerber stayed longer than the four hours and the Guardian
has been told be Mildred J. Gerber's psychiatrist that the visits should
be actually shorter for the benefit of their mother who had suffered
from dementia/Alzheimer's. By way of further answer, this matter was
resolved and is res judicata as Marilyn subjected herself to the
DuPage, IL, Court, and that Court reviewed all of the conduct of Marilyn
Jo Gerber with respect to her visitations. By way of further answer, the
averments in paragraph 40 are now irrelevant and moot as Mildred J.
Gerber has passed away an January 14, 2003. By way of further
answer, said averments are either now res judicata or collaterally
estopped by reason of Marilyn Jo Gerber's litigation of the same issues
in Du Page County, IL, Court on the same issues.
41. Admitted in part and denied in part. It is admitted that the Guardian
in conjunction with Sunrise procured an EX PARTE Order from the
Circuit Court from the 8th Judicial Circuit, DuPage County, IL, dated
October 29, 2002. Said Court Order speaks for itself. It is denied that
based upon substantially similar concerns or grounds in the
Guardian's Motion for temporary suspension of access visits with the
incapacitated person filed July 24, 2002 and denied by Order of this
Court dated July 29, 2002, the Guardian procured said EX PARTE Order
2O
dated October 29, 2002 from the Du Page County Court, the Circuit for
the 8th Judicial Circuit of the State of Illinois. To the contrary, it was the
Petitioner Marilyn Jo Gerber who obtained counsel and filed first the
Honorable Judge Bayley's Court Order of record in Du Page County,
subjecting it to the Illinois law allowing modification of and
enforcement of foreign judgments. Then on October 11, 2002, the
Petitioner Marilyn Jo Gerber through her counsel in Chicago, IL,
obtained the said October 11, 2002 Order, directed against the staff of
Sunrise to allow uninterrupted non-supervised visits and was implicitly
against the Guardian of the Person without returning to Pennsylvania
to address said concerns before this Honorable Court. In response to
the October 11, 2002 Court Order, the Sunrise Assisted Living Center
and the Guardian appeared and protected the incapacitated person,
Mildred J. Gerber, the other residents of the Sunrise Assisted Living
Center and the staff at the Sunrise Assisted Living Center by opposing
the October 11, 2002 Order which was obtained EX PARTE by Petitioner
Marilyn Jo Gerber. Based on Dr. Pauline Wiener's medical opinion,
these visits were extremely detrimental to Mildred J. Gerber and the
consequences of the October 11, 2002 Court Order preventing notice to
the Guardian, preventing notice to the staff at Sunrise, allowing
Marilyn Jo Gerber to come in at whatever hours she desired to come
in, preventing supervision by the Guardian of the visits, preventing
supervision of the visits by Sunrise, was extremely detrimental to
Mildred J. Gerber, to the other patients at the Sunrise Assisted Living
Center and to the staff at Sunrise Assisted Living Center. By way of
further answer, the issues of the October 11 and October 29, 2002 and
the January 9, 2003 are res judicata with respect to the said Court
Orders as Marilyn Jo Gerber initiated the litigation in the Du Page
County, IL, Court, obtained an EX PARTE Order on October 11, 2002
21
and engaged in egregious conduct against both her mother and the
personnel at the Sunrise Assisted Living Center, with Petitioner Marilyn
Jo Gerber apparently deciding not to participate before this Honorable
Court on these matters. A true and correct copy of the Court's Order
dated January 9, 2003, is attached hereto and incorporated herein by
reference. By way of further answer, it was not the Guardian who
initiated filings with the DuPage, IL, Court, but rather it was the
Petitioner Marilyn Jo Gerber. First, pursuant to the Illinois law on
recording an enforcement of foreign judgments, Marilyn Jo Gerber,
through legal counsel in Chicago, IL, filed the Honorable Judge
Bayley's March 25, 2002 Court Order of record. Iliinois law provides
that a foreign judgment so recorded can be modified by the Illinois
Court. The Petitioner Marilyn Jo Gerber then went into Court on
October 11, 2002 and obtained an EX PARTE Order modifying the
Honorable Judge Bayley's Court Order by an Order issued by the Du
Page, IL, Court dated October 11, 2002. A copy of said Order is
attached hereto and incorporated herein by reference. Said Order
modified in that it allowed for no interruptions, no supervision and no
interference. This Court Order was against Sunrise Assisted Living
Center and its personnel as well as the Guardian, which was an
additional modification. By way of further answer, said averments are
either now res judicata or collaterally estopped by reason of Marilyn Jo
Gerber's litigation of the same issues in Du Page County, IL, Court on
the same issues. By way of further answer, said averments are now
irrelevant and moot by reason of Mildred J. Gerber passing on on
January 14, 2003.
42. No answer is required as the October 29, 2002 Court Order issued by
the Du Page County, IL, Court speaks for itself. By way of further
answer, the Respondent is without sufficient knowledge or information
22
to form a belief as to the truth of what efforts the Petitioner is taking
through her Illinois legal counsel and therefore strict proof at trial if
relevant is demanded. By way of further answer, said averments are
either now res judicata or collaterally estopped by reason of Marilyn Jo
Gerber's litigation of the same issues in Du Page County, IL, Court on
the same issues. By way of further answer, said averments are now
irrelevant and moot by reason of Mildred J. Gerber passing on on
January 14, 2003.
43. Denied. It is denied that the Guardian has continued a course of
conduct to hinder, deny and delay access by Petitioner with her
mother. To the contrary, the Guardian has merely continued a course
of conduct to comply with first, the Honorable Judge Bayley's Court
Order issued March 25, 2002, as the Plenary Guardian of the Person of
Mildred J. Gerber and secondly, to comply with the Court Orders issued
by the Du Page County, IL, Court, while protecting his then sick, frail
and fragile mother from agitation and upset. By way of further
answer, said averments are either now res judicata or collaterally
estopped by reason of Marilyn Jo Gerber's litigation of the same issues
in Du Page County, IL, Court on the same issues. By way of further
answer, said averments are now irrelevant and moot by reason of
Mildred J. Gerber passing on on January 14, 2003.
44. Denied. It is denied that as a result of the foregoing, the Guardian has
failed to fulfill and perform his duties in accordance with the Order of
Court dated March 25, 2002, his appointment as plenary Guardian by
prior Order of Court on December 21, 2001 and thereby act in the best
interest of the incapacitated person, Mildred J. Gerber. To the
contrary, the Respondent, the Guardian of the Person, has fulfilled and
performed his duties in accordance with the Order of Court dated
March 25, 2002, his appointment as plenary Guardian by prior Order
23
of Court on December 21, 2001 and is acting in the best interests of the
incapacitated person, Mildred J. Gerber. By way of further answer, the
Guardian of the Person has relied on the best medical advice available
including that of Dr. Pauline Wiener, a Board Certified psychiatrist, in
the geriatric care. Copies of Dr. Wieners reports including the October
15, 2002 report concerning their mother are attached hereto and
incorporated herein by reference. By way of further answer, said
averments are either now res judlcata or collaterally estopped by
reason of Marilyn Jo Gerber's litigation of the same issues in Du Page
County, IL, Court on the same issues. By way of further answer, said
averments are now irrelevant and moot by reason of Mildred J. Gerber
passing on on January 14, 2003.
WHEREFORE, Respondent, Guardian of the Person, respectfully
requests this Honorable Court to dismiss Petitioner's Petition with prejudice.
In the alternative, the Petitioner is either irrelevant and moot by the reason
of the passing on of Mildred J. Gerber on January 14, 2003, or is irrelevant
and res judicata by reason of the Petitioner's participation in the Du Page
County Court system on similar issues.
COUNT II
45. Respondent, Guardian of the Person, incorporates herein by reference
the averments set forth in paragraphs I through 44 of his Answer as
though set forth at length.
46. Admitted in part and denied in part. It is admitted that Mildred J.
Gerber was removed from her home in New Cumberland in December
of 2001. It is admitted that Mildred J. Gerber resided in the New
Cumberland community and her primary home for approximately 34
24
years. It is denied that Mildred J. Gerber was isolated by the
Guardian from contact with friends, neighbors, church and the New
Cumberland Community. To the contrary, the Guardian encouraged
his mother to be in contact with her friends and neighbors with whom
she wanted to be in contact with when she resided with her daughter,
Jane Heflin.
47. Admitted in part and denied in part. It is admitted that Mildred J.
Gerber was removed from her home in New Cumberland. It is denied
that Mildred J. Gerber was taken from her home in New Cumberland
without her knowledge that she would not return after December 21,
2001. To the contrary, there was no final decision made whether or
not Mildred J. Gerber would return to her home in New Cumberland,
PA. By way of further answer, this averment is now irrelevant or moot
either by reason of the Honorable Judge Bayley's Order dated
December 18, 2002 or by reason of Mildred J. Gerber's passing away
on January 14, 2003.
48. As this averment does not deal with access by Marilyn to her mother,
no answer is required pursuant to the Honorable Judge Bayley's
December 18, 2002 Order.
49. As this averment does not deal with access by Marilyn to her mother,
no answer is required pursuant to the Honorable Judge Bayley's
December 18, 2002 Order.
50. As this averment does not deal with access by Marilyn to her mother,
no answer is required pursuant to the Honorable Judge Bayley's
December 18, 2002 Order.
51. As this averment does not deal with access by Marilyn to her mother,
no answer is required pursuant to the Honorable Judge Bayley's
December 18, 2002 Order.
52. As this averment does not deal with access by Marilyn to her mother,
25
no answer is required pursuant to the Honorable Judge Bayley's
December 18, 2002 Order.
53. As this averment does not deal with access by Marilyn to her mother,
no answer is required pursuant to the Honorable Judge Bayley's
December 18, 2002 Order. By way of further answer, Marilyn Jo
Gerber's attorney, Stan Laskowski, was in constant communication with
counsel for the Guardian until on or about October 1, 2002 when the
Petitioner Marilyn Jo Gerber missed a pre-arranged visitation with her
mother for no given reason and then attempted to visit mother without
pre-arranged notice to the Guardian on October 3 and 8, 2002, which
were denied to Petitioner Marilyn Jo Gerber by reason of failure to
give notice.
54. As this averment does not deal with access by Marilyn to her mother,
no answer is required pursuant to the Honorable Judge Bayley's
December 18, 2002 Order.
55. As this averment does not deal with access by Marilyn to her mother,
no answer is required pursuant to the Honorable Judge Bayley's
December 18, 2002 Order. By way of further answer, these averments
are now irrelevant and moot by reason of the passing on of Mildred J.
Gerber on January 14, 2003.
56. As this averment does not deal with access by Marilyn to her mother,
no answer is required pursuant to the Honorable Judge Bayley's
December 18, 2002 Order. By way of further answer, these averments
are now irrelevant and moot by reason of the passing on of Mildred J.
Gerber on January 14, 2003.
57. As this averment does not deal with access by Marilyn to her mother,
no answer is required pursuant to the Honorable Judge Bayley's
December 18, 2002 Order. By way of further answer, these averments
are now irrelevant and moot by reason of the passing on of Mildred J.
26
Gerber on January 14, 2003.
58. As this averment does not deal with access by Marilyn to her mother,
no answer is required pursuant to the Honorable Judge Bayley's
December 18, 2002 Order. By way of further answer, these averments
are now irrelevant and moot by reason of the passing on of Mildred J.
Gerber on January 14, 2003.
59. As this averment does not deal with access by Marilyn to her mother,
no answer is required pursuant to the Honorable Judge Bayley's
December 18, 2002 Order. By way of further answer, these averments
are now irrelevant and moot by reason of the passing on of Mildred J.
Gerber on January 14, 2003.
60. As this averment does not deal with access by Marilyn to her mother,
no answer is required pursuant to the Honorable Judge Bayley's
December 18, 2002 Order. By way of further answer, these averments
are now irrelevant and moot by reason of the passing on of Mildred J.
Gerber on January 14, 2003.
61. As this averment does not deal with access by Marilyn to her mother,
no answer is required pursuant to the Honorable Judge Bayley's
December 18, 2002 Order. By way of further answer, these averments
are now irrelevant and moot by reason of the passing on of Mildred J.
Gerber on January 14, 2003.
62. AS this averment does not deal with access by Marilyn to her mother,
no answer is required pursuant to the Honorable Judge Bayley's
December 18, 2002 Order. By way of further answer, these averments
are now irrelevant and moot by reason of the passing on of Mildred J.
Gerber on January 14, 2003.
63. As this averment does not deal with access by Marilyn to her mother,
no answer is required pursuant to the Honorable Judge Bayley's
December 18, 2002 Order. By way of further answer, these averments
27
are now irrelevant and moot by reason of the passing on of Mildred J.
Gerber on January 14, 2003.
64. As this averment does not deal with access by Marilyn to her mother,
no answer is required pursuant to the Honorable Judge Bayley's
December 18, 2002 Order. By way of further answer, these averments
are now irrelevant and moot by reason of the passing on of Mildred J.
Gerber on January 14, 2003.
65. As this averment does not deal with access by Marilyn to her mother,
no answer is required pursuant to the Honorable Judge Bayley's
December 18, 2002 Order. By way of further answer, these averments
are now irrelevant and moot by reason of the passing on of Mildred J.
Gerber on January 14, 2003.
66. Denied. It is denied that as a result of the foregoing, the Guardian has
failed to fulfill and perform his duties in accordance with the Order of
Court dated December 21, 2001 and March 25, 2002, in his
appointment as the plenary Guardian and act in the best interests of
Mildred J. Gerber. To the contrary, the Guardian of the Person has
taken great pains to take excellent care of his mother, Mildred J.
Gerber, the incapacitated person. In August 2002 when the kind of
care she needed could not be provided at the residence of Jane Heflin
any longer. All the foregoing in Count II did not relate to the denial of
access for visitation between the Petitioner Marilyn Jo Gerber and the
incapacitated person, Mildred J. Gerber and therefore no answer is
required pursuant to the Honorable Judge Bayley's Court Order dated
December 18, 2002.
28
WHEREFORE, Respondent, Guardian of the Person, respectfully
requests this Honorable Court to dismiss Petitioner's Petition with prejudice.
In the alternative, the Petitioner is either irrelevant and moot by the reason
of the passing on of Mildred J. Gerber on January 14, 2003, or is irrelevant
and res judicata by reason of the Petitioner's participation in the Du Page
County Court system on similar issues.
RESPECTFULLY SUBMITTED,
RUPP ~iD~~~~~
~R~chard C. Rupp, Esquire;
Atty. I.D. No. 34832
355 N. 21st St., Ste. 205
Camp Hill, PA 17011
717-761-3459
Attorneys for Respondent
29
VERIFICATION
I, Richard C. Rupp, Esquire, attorney for Respondent, verify that the
statements in the foregoing Answer are true and correct to the best of my
knowledge, information and belief. Said statements are based on
Respondent's own knowledge, belief or information provided to Richard C.
Rupp. Said Answer is filed by Richard C. Rupp, for Respondent, as
Respondent is outside of the Court's jurisdiction and is unavailable to sign
this verification to file this Answer.
I understand that false statements herein are made subject to
penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to
authorities.
Date: ~-/
CERTIFICATE OF SERVICF
AND NOW, this -~ day of Jommry, 2003, 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. Mail at Harrisburg, Pennsylvania,
postage prepaid, addressed to:
Amy J. Mendelsohn, Esquire
Rhoads & Sinon
One South Market Square, 12th Floor
P. O. Box 1146
Harrisburg, PA 17108-1146
Jaqueline M. Verney, Esquire
44 South Hanover Street
Carlisle, PA 17013
Stanley J. A. Laskowskl, Esquire .- ~-~,,~--~
Caldwell & Kearns
3631 N. Front St.
Harrisburg, PA 17110
Ms. Jane N. Heflin
270 North Garfield
Lombard, IL 60148
iN RE: : IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
APPOINTMENT OF A :
GUARDIAN OF THE PERSON OF : ORPHANS' COURT DIVISION
MILDRED J. GERBER, :
an alleged incapacitated person : NO. 21-01-92
BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
AND NOW comes Frederick E. Gerber, II, by his attorneys, Rupp and
Meikle and Richard C. Rupp, who file this Brief in support of Respondent's
Motion for Summary Judgment.
I. ORDER OF COURT
AND NOW, this/s/18th day of December, 2002, a Rule is entered
against Frederick E. Gerber, II, to show cause why he should not be
adjudicated in contempt for failing, in his capacity as guardian of the person
of Mildred J. Gerber, to allow Marilyn Jo Gerber access to Mildred J. Gerber
as provided for in an order of March 25, 2002. Rule returnable at a hearing
at 8:45 a.m., Thursday, February 6, 2003, at which Time Frederick E. Gerber,
II, is directed to appear.~
By the Court
/s/Edqar B Bayley
Edgar B. Bayley, J.
Richard C. Rupp, Esquire
For Frederick E. Gerber, II
Jacqueline M. Verney, Esquire
For Mildred J. Gerber
Stanley J. A. Laskowski, Esquire
For Marilyn J. Gerber
:sal
~ Because it has not been alleged that Mildred Gerber is no longer an
incapacitated person, and because Frederick E. Gerber, II, the personal
guardian has discretion to determine whether it is in her best interest to
receive care in an assisted living facility, and because the prior record
supports such a decision, we will not revisit on this petition fro a review the
request of Marilyn J. Gerber for a change of status, nor will we consider her
request for the removal of Frederick E. Gerber, II, as guardian of the person
of Mildred J. Gerber.
II. STATEMENT OF G~UESTIONS INVOLVED
1. Is the failure of the Petition for Contempt of Court and the Order to
Show Cause based on the Petition, moot?
Suggested answer: Affirmative
2. Is the Respondent entitled to Summary Judgment because the
Petitioner is collaterally estopped from raising the matters in her
Petition?
Suggested answer: Affirmative
3. In the alternatice, is the Respondent entitled to Summary Judgment by
reason of res judicata as the matters complained of in the Petition
were the same matters which the Du Page, IL, Court has already ruled
upon?
Suggested answer: Affirmative
III. STATEMENT OF CASE
1. Marilyn Jo Gerber, Petitioner, filed a Petition to Vacate Order and for
a Review Hearing, a prayer of which asks the Court to find Frederick E.
2
Gerber, Respondent, in contempt for non-compliance with the Order of
Court dated March 25, 2002.
2. Based on the Petition, the Court entered an Order dated December 18,
2002, against Frederick E. Gerber, II, Respondent, to show cause why
he should not be adjudicated in contempt for failing, in his capacity as
Guardian of the Person of Mildred J. Gerber, to allow Marilyn Jo
Gerber, Petitioner, access to Mildred J. Gerber as provided for in an
Order of March 25, 2002.
3. The Du Page County, IL, Court entered an Order on (October 11, 2002)
based upon facts before that Court, which facts are the same as before
this Court in the Petition of Marilyn Jo Gerber, and which are
determinative of the instant Petition.
4. The Order under review is this Court's Order of December 18, 2002, set
forth verbatim above.
5. The Du Page County, IL, Court upon application by Sunrise and
Respondent, suspended its October 11, 2002 Order and the ace access
visits on October 29, 2002.
6. Petitioner filed a petition in Du Page County, IL, Court on December 18,
2002 to vacate the October 29, 2002 Order. This Petition was denied
by the Du Page County Court on December 20, 2002.
7. The Guardian - Respondent voluntarily offered to re-initiate access
visits upon learning of Mildred's terminal condition.
8. The access visit allowed on January 8, 2003 went poorly due to marilyn
Gerber's conduct and was terminated.
3
9. Sunrise Assisted Living petitioned the Court on January 9, 2003 to
permanently stop the access visits which the Du Page County Court
ordered on January 9, 2003.
IV. SUMMARY OF ARGUMENT
1. Under the test for civil contempt set forth in Knaus v. Knaus, 387 Pa.
370, 127 A.2d 669 at pacje 673 (1956) by the Supreme Court of
Pennsylvania, the contempt prayed for is civil and not criminal in nature.
The purpose of a civil contempt is a remedial one to coerce the contemnnor
into compliance with the Order of Court.
Because of the death of Mildred J. Gerber, ordering the Defendant to
comply with the Order of March 25, 2002 would be a nullity and therefore is
moot.
2. Because the Petitioner voluntarily and deliberately initiated Court
proceedings to enforce the Cumberland County Court Order in Du Page
County, IL, and in so doing, not only voluntarily subjected herself to the
jurisdiction of the Illinois Court, but also proceeded to modify the
Cumberland County Order and directed the Illinois Court Order EX-PARTE
against another party, the Sunrise Assisted Living Center.
The Petitioner is now collaterally estopped from petitioning this
Honorable Court for similar relief or same relief as she sought in the Du
Page, IL, Court. Her own Petition even admits that she was trying to vacate
the October 29, 2002 Du Page County, IL, Court Order.
3. In the alternative, the matters complained of by Petitioner were
decided in the Du Page County, IL, Court and these matters are now res
judicata as to the Petitioner.
4
V. ARGUMENT
1. The Supreme Court of Pennsylvania in the case of Knaus v. Knaus, 387
Pa. 370, 127 A.2d 669 at paqe 673 (1956) stated:
"It is first necessary to determine the type of contempt for which
appellant was committed. Contempts broadly fall into two
categories, civil and criminal ..... "
The Court further stated:
"The factors generally said to point to a civil contempt are these:
(1) Where the complainant is a private person as opposed to the
government or a governmental agency; (2) where the
proceeding is entitled in the original injunction action and filed
as a continuation thereof as opposed to a separate and
independent action; (3) where holding the defendant in
contempt affords relief to a private party; (4) where the relief
requested is primarily for the benefit of the complainant; and (5)
where the acts of contempt complained of are primarily civil in
character and do not of themselves constitute crimes or conduct
by the defendant so contumelious that the court is impelled to act
on its own motion ...."
Applying the above factors in the instant case: (1) the Petitioner,
Complainant, Marilyn Jo Gerber, is a private person; (2) the proceeding is
entitled in the original action and filed as a continuation thereof; (3) a
holding of the Respondent, Frederick E. Gerber, II, in contempt would afford
relief to a private party; (4) the relief requested is primarily for the benefit of
Marilyn Jo Gerber, the Petitioner, Complainant; (5) the acts of contempt
complained of are failure to allow the Petitioner, Complainant, Marilyn Jo
5
Gerber, unsupervised visits with her mother, Mildred J. Gerber, which are
primarily civil in character and do not of themselves constitute crimes or
conduct by the Respondent, Frederick E, Gerber, II, so contumelious that the
court is impelled to act on its own motion.
The Superior Court of Pennsylvania followed the Knaus case in two
subsequent cases, In the Interest of Tasseinq H., 281 Pa. Super 400, 422 A.2d
530 at page 535 (1980) and the case of John Rulli v. Daniel T. Dunn, 337 Pa.
Super 613, 487 A.2d 430 at pacje 431 (1985).
Therefore, the contempt complained of is civil in nature and not
criminal and the purpose of a civil contempt citation is a remedial one to
coerce the contemnor into compliance with the Order of the Court and in
some instances to compensate the complainant for losses sustained. Knaus
(Supra). No losses or damages have been demanded in the Petition of
Marilyn Jo Gerber.
Therefore, summary judgment should be entered in favor of the
Respondent, Fred E. Gerber, and against the Petitioner, Marilyn Jo Gerber.
2. In the instant case before this Honorable Court, the issue decided
whether or not access visits should be returned to Marilyn was presented in
Du Page County, IL. There was a final judgment on the merits, the parties
were the same and the Petitioner had a full and fair opportunity to litigate
the issue in the Du Page, IL, prior proceeding and the determination of the
prior proceeding was essential to the judgment. Joyner Sports Medicine
Institute, Inc., v. Jose Demingez, Cumberland County Court of Common Pleas.
No. 02-1830 Civil Term, Opinion of the Honorable Judqe Oler. A copy of
which is attached and incorporated herein by reference citing Hopewell
Estates, Inc., v. Kent, 435 Pa. Sup. Court 478, 646 a.2d 1192, 1195, Accor~l
Ballent v. City of Wiles Barre, 542 Pa. 555, 564, 669 a.2d 309, 313-14 (1995).
6
Also citinq City of Pittsburqh v. Board of Adjustment, 522 Pa. ~.~., 55, 559
A.2d 896, 901 (1989).
Collateral estoppel operates to avoid by re-litigation of identical
issues, even when the prior proceeding involved the Court of a different
jurisdiction provided that both tribunals have equivalent subject matter
jurisdiction. In Re. Davis, 165 Pa. Comm. 20, 25, 644 A.2d 220, 222 (1994).
By the Petitioner herself registering the Cumberland County, PA, Court
Order and then by obtaining an additional Court Order for enforcement, she
essentially under Illinois law gave the PA Court Order a legally independent
life of its own. III. Stat. and Meyer, et. al. v. First American Title Insuranc~
Aa_ency_ of Mojave, Inc. 285 III Ap. 3.d 330, 674 N.E.2d 496 (111., 1996), a copy
of which is attached hereto and incorporated herein by reference.
In the instant case, the Petitioner had a full and fair opportunity to
litigate the issue of the Guardian's conduct with respect to the access visits
and with respect to the October 29, 2002 Du Page County, IL, Court Order,
which is the basis of the allegations of contempt. By reason of the conduct
and actions of the Petitioner, the Du Page County, IL, Court has equivalent
subject matter jurisdiction of the exact matters claimed of by the Petitioner in
her Petition. The Respondent incorporates by reference the authenticated
and certified Court Record of Du Page County Court and asks this Honorable
Court to take judicial notice by reason of an official record of the Du Page
County, IL, Court in accordance with 42 Pa. C.S.A. 5328. See also Carboner~
v. Johns Manville Corp., 526 F. Supp. 260 (1981), DeMarris v. Communit-;
Colleqe of Allec~hen_y County_, 407 F. Supp. 79 (1976), and Haefner v. County
of Lancaster, 543 F. Supp. 264 (1982).
7
3. For the foregoing reasons, in the alternative, as the Du Page County, II,
Court ruled upon the issues raised by the Petitioner, especially Petitioner's
Petition to Vacate the October 29, 2002 Order, these matters are now barred
by res judicata.
RESPECTFULLY SUBMITTED,
RUPP~
By: ~ ~h / ~--~-~..-~ ·
Ric/hard C. Rul~ Esquir~'~'~
Atty. I. D. No. 34832
355 N. 21st St., Suite 205
Camp Hill, PA 17011
717-761-3459
8
14 JOYNEll St'()t:~TS.MEI)I(;INE INSTITUTE v. DOMINGUEZ
([ite as 52 (hlmb. 14 (2002)
JOYNER SPORTSMEDICINE INSTITUTE, INC. v. JOSE
DOMINGUEZ, P.T., CUMBERLAND CO., COMMON
PLEAS, No. 02-1830 CIVIL TERM.
(ii, i[ \ctim~--l']qmt~--15.titiot~ tin' l'reJimina~' Injunction~Al]eged Breach of Cov-
~'nants in I.:ml~lmmunt .k~remm'nt~Competing Phvsic~ Therapy Clinic Opened
})x I)('fim(Jmlt~l']fl~x't (~1 .kc'qHisition (ff O~mfl E~plover by New Enti~' Upon
I'h~pIm m,,.t A~reunJent~Ri~ht to Injunctive Relief~Co]later~ Est~ppel~
· ks~i~nahihlx (fl' Ih'stric. tixe Covenants to New ~ers Absent Emplovee~ Con-
,~'nt~Trmh, 5~'crets~Clt, ar Right to Injunction Not Established~P~tition De-
[. -J'}lt, l'lamtiff fiUled to offer sufficient e~dence to demonstrate clearly
that I)uli'ndant's employment and its resthctive coven~ts rem~ned enforceabl~
,dwr l),'fi'mtant did not accept a new employalent a~eement proposed by the
Cm.l~am' that had acquired the pre~ous emplover.
2. The Plaintiff may be barred bv the ~octrine of collateral estoppel
}~t,t,illl~(, of it C'Oll~ (Jecisi(m against Plaintit:f b~ed on identic~ issues in Dauphin
B B 1 D( ;~T E. Mt)NTt;OM ER~ ESQUIRE, ARomey for Pl~nfiff.
K:VFI 1 RY~ L. ~INI~SON, ESQUIRE, Atto~ey For De~end~t.
IN RE: P~INTIFF'S PETITION FOR
PRELIMINARY INJUN~ION
Bei~)re OLER, j.
()PI~ION AND ORDER OF COURT
This uquity case ahses out of an ~]eged breach by Defendant, Jose
Do ~ ,,z. IYF., ora covenant not to compete, a coven~t not to solicit
eml)J(>}('~'s and other business colltacts of the employer, amd a covenant not
to ~se u(mfithmtial ()r prophetag' I)usiness information of~e employer, M1
oJ' wific.h were included as proqsions in an emplm~nent a~eement be-
twuen l){d~'mlmit and PlrdntiffJos~er Spoasme&dine Inshore, Inc. For
(lisl)osition at this time is a petition for a preliminan, injunc~on, in which
Plaintit'f seeks to eh.join the operation ora phvsictfl therapy clinic that w~
~,l)em,~l hy l)t'ii,mlant soon at}er Jle had resi~ed from his prior employ-
mum in tilt' sam(, i)rofi,ssi()n. '
:[ heal5nZ {nl the petition t~)r ;t [)reliminan. injunction xv~ heJd on
_J~me 24. 2002 and .J~ul{, 2(5. 2002. lg~SeJ~ have nox~' been received from the
i)m'tit's. For tim masons stated ill tilt' accolnpall~ng ()pinion, Plenties
4
JOYNER SPORTSMEDICINE INSTITUTE v. DOMINGUEZ 15
Cite as 52 Cumb. 14 (2002)
STATEMENT OF FACTS
The evidence presented at the hearing on PlaintifFs petition demon-
strated the probability that the following/:acts will be established at frith
PlaintiffJo)~er'Sportsmedicine Institute, Inc. (hereinafter "jo3~er-),
is a Pennsylvania corporation with its principal place of business in
Cmnberlan'd Conntx; Pennsylvania. Joyner previouslv had both owned and
operated a rehabilitation an'd physical therapy outpatient clinic located at
:3438 Trindle Road, Camp Hill, Hampden Township, Cumberland Countx;
Pennsylvania.
purchase by NovaCare Outpatient Rehabilitation East, Inc. (hereinafter
"NovaCare'), and subsequently xvas acquired through another stock pur-
chase bv Select Medical Corporation (hereinafter "Select").~ Thronghout
these changes in ownership, the Joyner name has continued to attach to the
clinic: however, the acquisitions resulted in different benefits packages, eom-
pensation {brmnlas, and employers as reflected on statione ,ry, paychecks,
auct W-2 tbrms.,~ ' .
Defendant Jose Dominguez, P.T., resides itt 510 Joel Drive,
Mechanicsburg, Cumberland County, Pennsvlvania. Defendant had been
employed by Jo)nen NovaCare or S~leet fro/n approximately July 8, 1996
until March 8, 2002, ~nost recently as manager of said clinic.4 As ~nanager,
Detbndant had access to the list (;fdoctors on xvhich the clinic depended
fi)r patient refbrrals and to the management techniques employed by the
clinic.
Ddbndant was origimdlv employed pursuant to an emplm~nent agree-
ment. executed on July,'~, 199~, that e~nta/ned several restrieti(,e covenants,
iucluding noneompetitiou, non-solicitation, and nondisclosure clauses: 9. NON-DISCLOSURE:
(a) The Employee recognizes and acknoxvledges that he/she
xvill have access to or other xvise [sic] learn about certain confidential
infi)rmation, records and other proprietary commercial information
t Pl.k Comp/., filed Apr.
20 )2, para. 3. By agreement of the part/es, the pleadings in this case were made pai/t of
the
o .~ 2 Pl.~s Compl. filed Apr. 12. 2002. [>ara. 20: Def.'s Answer & Xew *latter, May ,3,
_(}(1_. para. 2(I.
; See e.g., Pl.'s (:tm~pl.. filed Apr. 12, 2002. para. ,3: Def.'s Answer & New
Matter. May 3. 2002. para. 3.
; See I'l.k Ex. I. llr',d, brae 24, 2002. June 26. 2002 (hereinafter Pl.'s/Det~'s Ex.
: see also, Pl's (Mmpi., t'il~M .\pr. 12, 2002 para. 1,5: DeiTs Answer & New Matter,
Ma~ 3. 201 2 para. 1.5
5
16 J()YNEI/SI'()I~TS.XlEDICIXE INSTITUTE~: DOMINGUEZ
(i/re as .52 (:mt,b. 14 (2000)
· . o f th t, E mph ~5 t,r, Tl~e Empl~yee agrees that he/she x~ not. during or
at}¢'r the term (~t'his/her employnlent, disclose anv such confidenti~
infi >rmati(m t{~ any pat%' .5tho~t exl)ress x~tten a~thofization of the
{c ~ TI ~t, pr(>xSsions of this Paragraph 9 sh~ sumve ~e temina-
tion { ~t't}lis .k~reement.
11. K()NCOMPETITION P~O~IBITIOM: Forte durahon
ot' Empl~y~,ek empio}~nent, and for a pehod of Two (~) ye~s follow-
ing the terlllination of Employee~ emplo~ent, Employee sh~ not,
directk' or imlirectlx: ~[s an employee, agent, independent contractor,
t'i)nsu]tant, ox~ler, stoc~older, pamen officer, ~rector or o~er-
x~Sse, enter into or in any manner t~e pa~ in ~y business or peffom
any senSc'es in direct competition xxS~ the business of~e Employer,
x~Sthin a ti'il ~ [0) mile radills of the [clinic].
12. XON-SOLIClTATION OF fMPLOYEE~: Employee
a~rces not to solicit or entice or endeavor to solicit or enace away
t'ronl the f~ mployer any person who wi~ a ~reetor, o~cer, employee
~ )1' ('{ lliSi Iltant of tile Employer, either on hi~er om account or for
imy pers~ }Ii. t)rm[, ] co~oration or off,er organi~on, whe~er or not
sut.h [)erson wouId commit any breach o[ his/her contract of em-
ph ~> l llellt [)v rt~ason ()1' leaxSng the se~Sce of the Employer?
()n ~ lay 27. 1 [)95. soon ai}er the acquisition of Joker by NovaC~e,
l)M~'n&tnt was sent ~ letter by NovaCare i~ which the laaer proposed a
~l{'xx' {'nil)Ii ~vllli'lit a~reelilent bem'een X'ovaCare and Defender. Fo~ow-
ill~ tltt, n't'itati{m ~t'tlie terms of this off~n which inco~orated ~e resthc-
riX'{' t'OX {'liltiitS C{~ll~tillCd in the prex~ous empIoyme~t agreement be~een
J~?lt'r and l){'t}'mlant, the letter stated as folloxvs:
Ph,~csr. si~ll this letter below ~[s ac~owledgment of~ese con'-
tiaras ot'}ollr ('m[,[{>yment [andJ return it to NovaC~e in ~e enve-
lop~, theft I~ts bt,i,n prm4ded to ~'ou. no later than Monday, June 1,
19~ls. Should you opt not to si~ and ream t~s l~ee~ent
by June 1, 1~[)8, your contract x~ll be void and you
become an employee at-will on June 1,
6
JOYNEI/SP()HTSMEDICINE INSTITUTE v. DOMINGUEZ 17
Cite as 52 Cumb. 14 (2002) i~ '
l)elbndant did not return the agreement to NovaCare by June I 1998 ~{)r ..'.
am' ~,ther date ), and (lid not thereat}er sign a new emplo~nent agreement
~Stli Jo?er, Xm'a(Jare or Select.
()n March $. 2002. Defbndant resi~ed from employment at
clinic, which was then oxx~ed by Selec. t.s Soon fl~ereat~en Det~m(lant [)p(rltll
{)peratin~ (hmd~erlamt Onhope(~c & Spine Phvsicifl Therapy. Inc..'~ which
has a registered {d'fice at 4640 Tfindle Boad. C[unp Itill, Hampden T()x~)-
ship, Cumberland (i(mna; Pennsylvania. m The office is located approxi-
mately one mile ikom the other c~inic and is engaged in substantially the "
sam(, }msim,ss as the other clinic. To ~nanage this clinic. Dei~ndan't has
relied ()n a business and mana.aement plan developed by De~bndant based
on similar plans used throughout the phvsic~d-therapv iz~dustm-and, in
on his (~xvn expemmce at the [)flor eli~ic. Howeven Det~ntiant does not
l)()ssess :t~i(1 has not used any infi)rmation or tnatefi~fls t~om the [)Nor c'linic.
· ~ devNop a base of doc'tors who x~ll retbr patients to the clinic..~
D~,fimdant has en~a~ed in marketing eiToas desi,~ed to attrac,t area phvsi-
c'ians, ot'whom several had pre~4(mslv referred patients to the prior c. li~]ic..
In determinin~ ~he doctors toward ~'hom he would direct his solicitation
e/'fi)~ts. Delbndant lncs relied pmna~ly on listings in the phonebook ami has
not ~st'd the list ~fdoc'tors who do or dicl refer patients to the other clinic.
()n .-klm/ 12..00z. Plaintiff flied a compl~dnt and a petition fi)r ;t
pn'linm~a~T injmwtion, in which Plmntiffseeks to enjoin the operation
Defi'mlaut's c'ompetin~ physical therapy clinic. One potentially cHspositive
iss~w raised by the petitio'n, and by l)~tbndant's answer, is M~ether the
nonc'{m~petition prmqsion in Defendantk emplox~ent agreement sunSved
the stock-purcl~ase acquisition ofJovx~er bv No('aCare.
This issue appe~s, at le~t b~d upo~ ~e present pre~minm' record.
to be essentially indistin,~ishable &om one prexSouslv "litigated a~d tiredly
adj,,die'areal" in Jo~er Spores Me~eine Institute, Inc. v. Stejbae~,
45 I). ~ (;. 4th 242. 248-.50 (Dauphin C~. 1999), a~d mem., 769 A.2d
' lq.s (.~mpE. tih'd Apr 12. 21(2 para. 7: Det'.'s :knswer ~ New Matter. Max 3.
~ih'd Apr 12, '2~('2 par~L 37: I)~.L's knsx~et'~ New Matter. Ma} 3.20(.2 para. ;7.
"Pr ~ ( ~,mpl Iih,d kpr ~2. 2( 2 [)ara. 37: Det'k Answer ~ New Matter. Max
7
1~, .J()YXEI/SI'()I/TS.X. II,:I)I(:IXF~ INSTITUTE x: DOMINGUEZ
(itt' a~, 52 (:Ulli[). 14 ~2002)
1215 (Pa. Super. 20()()L ~: Stejbach involved ckd~ns brought by Jo~en ~so
Plaintiff in the ira,sent t'aso, to entbrce the terms of restrictive coven~ts
a~ainst txx'() ex-emplt)yt'es, both of'whom obt~fined new emplomnent in a
c'(mll)('tiz~~ c'()mpaJly al~er they had resigned their respective positions in
19D9. See Stejbach, supra at }4.5-46. In that c~e, ~e detbnd~ts ~ed
that their employtnent with Jo?let had ended on M~ch 9, 1998, ~e~date
that Nm'aCare had acquired J~}~ler through a st~k purch~e. Id. at 24547.
,,[cc'ording to the detbndants, because their emplo~ent x~ Joker had
ended ~m March 9, 199S, and they had not consented to ~ asi~ment of
their employment agreements to NovaCare, the restfic~ve coven~ts had
not attached to the new relationships. Id. As would be e~ected, Joker
"strenuously ar~ue[d]" aa~dnst this position and contended ~at ~e em-
ph ~5'n wnt relationsl~ips, and the restrictive coven~ contaned in the em-
I~loyment a~reemcnts, smx~ved the change in omership. Id. at 249.
In StQbach, fi>lloxxmg a heating, the Cou~ of Common Plea of
l)m~l~hin (/o~mtv. in an opinion by Jndge~now President Judge--
KI,I.ilx FI.:I,TEI/. a,~reed xxfth the de~bndants ~d found ~at, "~ of~e ac-
{luisition date" of Jo}q~er by NovaCare, the defbnd~ts "were no longer
{'ml~h~yees ot'Jos~er and that they were effechvely teminated." Id. at ~0.
In ~,tki~ < this tindin,~, the cou~ noted that the acqu~ifion res~ted ~ ~er-
,.nt bt,~ ~t,tlts packages, compensation formula, ~d employem ~ reflected
on W-2 fi~rms. Id.
:Xs such, the corm fimnd that the post-emplo~ent pefio~ ~ctated
]~v tl~t, restrictive covenants commenced on M~ch 9, 1998, &e ~te of&e
ac.q~ fisiti{ m ~ rather than on the dates of~e defen~B' subsequent resi~a-
tions m 199S)), and that the e~iration dates of the sad pefio~ were to be
calculated accordinaly. Id. at 249-50. Based on this fining, ~e cou~ con-
eluded that the post-emplo?~ent period of the coven~t not to compete
apI)licablt' to one of the detbndants, whose emplo~ent a~eement in-
cluded a one-year restrictive covenant, had e~ired ~ of the decree~ ad
that the period applicable to the second detbndant, whose a~eement in-
ch ~ded a ~vo-vear restnctiv~ covenant, would e~ire on M~ch 9, 2~. Id.
at 2,51.
12 Se(.' :lis(). I),'f , \nsxt(,r & N{'w Matter: 5,1ay 3. ~)2. Ex. 3 (opi~on of Cou~
~rH~r~oll I'h'ax t,r I)mm}lHt (;{mhtx iH Jo?ncr Sp0~s 51e~eine Institute, Inc. v.
Stejl)ach
I i 'J'Jl,' dt'('rt'~' :r, Stejl);Jch was ,',ih'red (,n N()v('mber :;0. 1999. sever~ months
Xlar('Jt 51. 1})5151 .',}i~.ri ~}., i>~,r-md diclah,d bx the noneompete provision had
See 5t(~J)at'}]..,ip]',t ,,( 2BI
JOYNEIt SPORTSMEDICINE INSTITUTE v. DOMINGUEZ 19
(:itt, as 52 Cumb. 14 12002) :
5tared simply, the result in Stejbaeh was pre'cared upon a findin~
that thc Jo~er noncompete prm~sions did not su~ve the 1998 ac({ui~i-
tion by NovaCare in the sense of being inco~orated into the new
empl()yer-t'mployee relationships generated by the acquisition.
DISCUSSION
Statement of Law
Preliminan' Injunction. In order to establish a hght to injure, rix
relief, the moxm~ txu%-must slttistk' five "essentild prerequisites." John G.
Bm'ant Co., Inc. v. Sling Testing & Repai~; Inc., 471 Iht. l. 7, 369
A.Jd 1164. 1167 (1977). ~ 1 ) The i~0unction must be "necessma' to prex ent
immediate and irreparable harm which could not be compens~ited by (l',u,~-
a~es." t2) TI w injunction must be required to avoid a comparably
inj~ux' than that which would result by a rethsal to grant it..). The mpmc-
ti(n~ m~st haxe tim eflbct of restom~g the pmties to the status quo"'as it
existed immediately phor to the zflleged wren<fid conduct." ~4) The
~tm'sted in.)mction must be "reasonably suited" to the abatement (ff thc
ob.i(x'ti(mable actixdtx'. (5) The moxdng pa~"s ~Sght to relief must be "clear"
and wrong m~st })e "manilbst.' Id. tqm)ting Mbee Homes, Inc. v. Cad-
die Homes, Inc., 417 Pa. 177. 181. 207 A.2d 768. 770 ~ 1965)).
Although pa~ies seekdn~ a preliminao'injunction are not requin,d t()
pr(~duce a[)solute proof of their cl~fims in or(tt2r t() demonstrate a riQ~t
inj~mctix-e r(']ief, l)m~ies must. at a miuimmn, oflbr sufficient exddt'nc't,
sh()xv "a stron~ likelihood of success on the merits." Temple Universih' v.
Mlegheny ltealth Education & Research Foundation, 456 Pa.
pedor (;t. 314. 327. 690 A.2d 712. 71 $ (1997). This exs(tence must "clear{
s[ ~(,w that the pat~' hlks been subjected to m~ actionable xwon~. See Bm-ant,
s~t)ra at 9-1{), 3G9 A.2d at 1168. Accordingly. "speculative considen~tious
max not fi)tm the basis tbr issuance ofa prelimina~x' injunction." Yamoski
v. Lloyd, 11() Pa. Commonwealth Ct. 97, 10~. 531 A.2d 1169. 1172
Besthetive Covenants. Like ~dI eontractnM prm4sions, resthctive
t'{)venants cont~dned in an employment contract inav bo amended or ter-
minated b5 agreement of the panics. See ~MI-Pak, I~c. ~7 Johnston.
.X.2d 347. :351 rPa. Super. 1997": Hahnemann Medical College & Itos-
pital v. Hubbard, 267 Pa. Supedor Ct. 436, 440. 406 A.2d 112(). 1122
1979L it has been stated that. when a corporation chan~es ox~q~ership
through i'ither an asset p~rc. hase or a stock purchase. "restrictive covenants
9
20 JOYNER SPORTSMEDICINE INSTITUTE ~: DOMINGUEZ
Cite as 52 Cu,nb. 14 (2002)
contaiued in emplo)qnent contracts [are] unassignable [to the new owners]
absent the consent of the employee." All-Pak, Inc., supra at 351; accord
Stejbaeh, supra at 248-50.
Collateral Estoppel. Under the doctrine of collateral estoppel,
parties are prevented from raising issues of law or fact that have been "once
litigated and finally adjudicated in a court of competent jurisdiction," even
wbeu the current proceeding involves a different cause of action than the
prior litigation Hopewell Estates, Inc. v. Kent, 435 Pa. Superior Ct.
471. 47S. 646 A.2d 1192, 1195 (1994); accord Balent v. City of
Wilkes-BalTe, ,542 Pa. 555, 564, 669 A.2d 309, 313-14 (1995).
Collateral estoppel applies if(l) the issue decided in the prior
c~se is identic~fl to one presented in the later ease; (2) there was a final
judgment on the merits; (3) the party against whom the plea is as-
serted was a party, or in privity with a party in the prior ease; (4) the
party or person pray to the party, against whom the doctrine is as-
serted had a full and fair opportunity to litigate the issue in the prior
proceeding[;] and (5) the determination in the prior proceeding was
essential to the judgment.
City of Pittsburgh v. Zoning Board of Adjustment, 522 Pa. 44, 55,
.5.5.c~ A.2d 896, 901 (1989). Collateral estoppel operates to bar re-litigation
of identiczd issues even when the prior proceeding involved a court of a
diffe rent jurisdiction, provided that both tribunals have "equivalent subject
matter junsdictiou." In re Davis, 165 Pa. Commonwealth Ct. 20, 25, 644
A.2d 220, 222 (1994).
Trade Secrets. Ex'press covenants not to use confidential informa-
tion are enforceable to the extent that they seek to prohibit disclosure of
"legally protectable trade secret[s]." See l~elmlee v. Loekett, 466 Pa. 1,
.$, 351 A.2(t 273, 276 (1976); see 'also, Macbeth-Evans Glass Co. v.
Schnelbach, 239 Pa. 76, 85-86, 86 A. 688, 691 (1913). To qualify as a
"triode secret," information must be both "a particular secret of the em-
I)foyer. not a general secret of the trade," and "of peculiar importance to the
c'onduct of the employer's business." Bell Fuel Corp. v. Cattolieo, 375
Pa. Superior Ct. 23,S, 258, .544 A.2d 450, 460 (1988) (citing Mae-
beth-Evans, supra). Although protectable trade secrets may include cus-
tomer lists that are based upon unique data compiled by a c(~mpany, trade
secrets do not include "mere mimes and addresses easily ascertainable by
()bser~'ati(m or reference to directories." Carl A. Co'lteryahn Dairy,
10
JOYNER SPORTSMEDICINE INSTITUTE v. DOMINGUEZ 21
Cite as 52 Cumb. 14 (2002)
Inc. v. Schneider Dairy,, 415 Pa. 276, 283, 203 A.2d 469, 473 (1964i.
quoted with approval in Renee Beauty Salons, Inc. v. Biose-
Venable, 438 Pa. Superior Ct. 601,609, 652 A.2d 1345, 1349 (1995).
Application of Law to Facts
Restrictive Covenants.~4 On the basis of the evidence presented at
the hearing on Plaintiff's petition,t~ the court is of the opinion that Plaintiff
has failed to offer sufficient evidence to demonstrate "clear[ly]" that
Defendant's employment agreement, and the restrictive covenants con-
tained therein, remained enforceable 'after June 1, 1998, when the new
emplo,vment agreement proposed by NovaCare was not accepted by De-
fendant. Like other contracts, employment contracts may be amended or
terminated by agreement of the parties. See e.g., All-Pak, Inc., supra at
351. The evidence presented at the hearing on Plaintiff's petition tended to
show that, in May 1998, following its acquisition ofJo.vner, NovaCare sent
to Defendant a letter in which NovaCare offered a new employment agree-
ment between NovaCare and Defendant. The letter concluded: "Shonld
you opt not to sign and return this Agreement by June 1, 1998, your con-
tract will be void and you will become an employee at-will on June 1,1998." ~
Defendant did not return this agreement, and, as such, serious factual
questions exist as to whether the original employment agreement between
Jo?ncr and Defendant remained effective 'after June 1, 1998. ~: Accord-
ingly, Plaintiffhas failed to establish a "clear" right to relief on the basis of
the restrictive covenants contained in the emplo,~qment agreement, and
injunctive relief would be inappropriate at this stage.
14 Defendant does not challenge the reasonableness of the noncompetition cov-
enant in terms of temporal, geographic ur perfonnative scope.
~3 It should be noted that the discussion that follows is predicated on the e~4dence
presented at the preliminar?' injunction stage of this case and that, accordingly, this
opinion does not constitnte a final adjudication of the merits of Plaintiff's claims. i6 Def.'s Ex. 1.
17 At the heanng on this matter, Plaintiff presented a letter dated June 8, 1998,
which stated that Defendant was still bound by the original employment agreement
subject to certaiu chan~es, ltowever, Defendant testified that he does not remember
receivinff it and a x~4tness for Plaintiff could not be certain that it was ever mailed tu
Det~qldant. Re~ardless of whether Deibndant received this letter, it thd not re-enter him
into a leEall? bindinK contract because there xvas no acceptance of the terms bv Det~'n-
dant. and. thus. no mutual assent. Hahnemann Medical College, supra at '440. 406
A.2d at 1122 istatin~ fimdamental concept of contract law that there must [)e mutual
asst, nt m order t~)r a contract to be formed).
11
'2'2 J()YNER SPORTSMEDICINE INSTITUTEv. DOMINGUEZ
Cite as 52 Cumb. 14 (2002)
· - Collateral Estoppel. In addition, upon consideration of the opin-
ion in Stejbaeh, it would seem that the doctrine of collateral estoppel may
well bar Plmntiff from r'dsin:, in this ease the issue ofxvhether the restrictive
covenant in Defendaut's emplo,xqnent agreement remained enforceable in
2002. when Defendant resi~led his employment. The first prerequisite for
application of this doctrine is identiO,' of issues. As in Stejbaeh, Plaintiffin
this case has raised cl~dms predicated upon the enforceabili ,ty of a non-
competition covenant contained in an employment agreement executed
prior to the stock-purchase acquisition of Joyner by NovaCare. Specifically,
as in Stejbach, a potentially dispositive issue in this case is whether the
employees of Jo.x~er xvere terminated on the date of acquisition and the
post-employment period dictated by the restrictive covenant commenced
~m March 9. 199,5. Accordingly, the issues in Stejbaeh and the present case
would appear to [)e identical [})r purposes of collateral estoppel.
Further. at this stage ()f the case, it appears that the remaining re-
quiremeuts for application of the collateral estoppel doctrine 'also mav well
[)e met. The decision iii Stejbaeh constituted a final adjudication of the
m e tits (~t' the case. and resolved idl outstanding issues between the parties.
See Stejbaeh, supra at 249-50. The party against whom the doctrine of
collateral estoppel is being asserted iii this case--Jo,vner--was also the
plaintiffiu Stejbaeh and. iii that case, Jo,vner had a "full and fair opportu-
nip,' to litigate" the issue of whether the stock-purchase acquisition occa-
si(reed a termination of'the emplo,x~nent agreements. See Stejbaeh, supra
at 249 (stating that Jo?q~er "strenuously argue[d]" this issue). Finally, be-
cause the Stejbaeh court~s explicitly based its ruling on the fact that the
employment relationship ended on the date of acquisition, see id. at 250,
"the determination in the prior proceeding was essential to the judgment."
Citw. uf Pittsburgh, supra at 55, 559 A.2d at 901. On the basis of the
ex~dence presented at the hearing of the petition, a strong argument can be
made that all requirements ibr application of collateral estoppel have been
met and that Plamtiffx~ll be barred from re-litigating the issue of whether
the uoncompetiti(m proxSsions of the employment agreement between
l~laintif£and Dt~fgnctaut surx-ived the stock-purchase acquisition of Jo.vner
I', Both th~' (:~mrt ~t' (;ommon Pleas of Dauphin County and this court have
~em.ral sub t'ct matt{~r urisdic'ti{m, and. as such. both courts ha~,e "equivalent subject
matter iurisdit'ti{m ' fi~r purp~st's of c'ollateral {'stoppel. See Davis, supra at 25. 644
.\.2d at '222.
12
J()YXER SI'ORTS*IEDICINE INSTITUTE v. D()NIIN(;UEZ .,.,
(Ste as 52 Cuml). 14
by N{wa(ktre in the sense of being inco~orated into the new cmph>x-
t'r-empl()yec relationship. ·
If thc doc'trow of collateral estoppel is held to be applicable in this
c'asc, it xvo~l(t Sul)po~ fin(tin~s that Defendantk employment a~rcemc~ t
was terminate(t on March 9. lgg8. and the noncompetition covenant, which
was ~v()years in (h tuition, was enibreeable/¢o~n March 9. 1998 tmtiJ Marc']~
9.2000 t,, If's(). as ot'2002, the et}bet of the restrictive covenant would
Cxl)irc(I. For this a(lditiona/reason. Plaintiff'has tidied to esta})lish a "dear"
tS~ht to nqicf{m the basis of the nonc'ompete covenant.
Trade Seerets. The cou~ is ~dso of the opinion that Pl~fintitt' has
tidied to ot'fiq' suflk'ient exSdence at this stage to demonstrate a "clear"
to in mwtivc r(qie~'on the basis of the covenant not to use confidential
[mqmt'ta~T b~sincss infi)rmation of the emi)lover. Employers have a right
to cn fi)re.t, s~ wh remSctive covenants onlx'xxSth r~spec, t to "le~tdlx-protecta}dc
trade sccrett s j." w]fic'h are limited to :'the pa~icular secrets of the
plainin~ c~q)h~yen not ~eneral secrets of the trade in which [the
is ('n~a~(,(l." Macbeth-Evans, supra at 85. 86 A. at 691. In the present
cast'. Plaint "seeks t() o'ohibit Detbndant fkom "~ ' , ~ , ·
2cwn(l',mt s new business a list of doctors and a set ofm'm'~(rement tcch-
n q ~es b.th (,/'which allegedly were obtained throu.Q~ IDelbmlant~ previ-
,,~s {'mpl(,yment -Sth Plainti[}[ The exS(tenee presented at the hemSn~
the pctiti{m temt(,(l t() show that the list of doctors was comprised ()['II&IlIICS
that could t)c fimml easily by r(qbrenee to a ph(mebook ()r profbssional
(lircr'tr~x'z'' and that. ther}~fi)¢e, the list would prol)ablv not qualilk-as
t)n)tcctabh' tra{lc secret. See Coltem'ahn Daim-, supra at v -,
zS.), 20:~ A.2d
at 47:3 ~"Eqmty xxSll m)t protect mere names and addresses easily faeces-
si bb. j I~5 ol)scn'ation ()r rc[brenc, e to (lirectrmes.'), Accor(lin~Iv,' Plaintif['
}~as fidlc(l to den~(mstrate a likelih(n)d of success on the merits of this claim.
Simiku'lv. the c'{>m't is of' the xSew that the management techniques
alh'~et/lx ~se(t })x' l)~qbndant have not been shoxxn~ at this stage to c'onstit~tc
the [)h)sit'a/-tht,rapy m(h~st~¥, and not [))'Joxq~er. X~vaCare ()r select exclu-
,ix (,lv. 'I'1~(, ~,x-i(h,nc.t, presented at the h¢~a~n~ tended to show that Deft,n-
13
24 JOYNER SPORTSMEDICINE INSTITUTE v. DOMINGUEZ
Cite as 52 Cumb. 14 12002)
Plaintiffs employ and that other participants in the industry lme~v about
and used the same techniques. Because this information was not held ex-
clusively by Plaintiff. it is unlikely to quali .fy as a "trade secret," m~d Plaintiff
has failed to establish a "clear" right to relief sufficient to ~varrant the grant
ofa preliminar?' injunction?
For the foregoing reasons, the following order will be entered:
ORDER OF COURT
AND NOW this 2nd day of August, 2002, 'after careful consideration
of PlaintiftVs petition for a prelimina .ry injunction, following a hearing, and
for the reasons given in the aeeompan?ing opinion, the petition is denied.
21 The court ',dso is of the view that the evidence that Defeudant solicited a single
emplo?ee of Plaintiff and contacted one referring doctor xvas iusnfficient tn warrant the
Plaintiff's requested relief, see Bryant, supra at 7, 369 A.2d at 1167 (stating that
prerequisites for preliminary injunction include findings that "immediate and irrepa-
rable harm" would result from a failure to grant the injunction and that comparably
_~reater injun,' x~xmtd result from a refusal to grant the injnnction!, particularly because
factual question~ exist as to whether the non-sulicitation clause in the employment
a~reement remained enforceable after Defendant:s resignation. Compare PUs Ex. 1,
para. 9 tstating that "It]he prm'isions of this Paragraph 9 shall sun'ive the termination of
this A~reement"'. and id. para. 11 (same). with id. para. 12 ~failing to state that the
prmSsions shall survive termination of employment relationship,.
14
Get a Document - by Citation - 285 Ill. App. 3d 330 Page 1 of 9
Service: Get by LEXSEE®
Citation: 674 N.E.2d 496
285 Iff. App. 3d 330, *; 674 N.E. 2d 496, **;
1996 ill. App. LEXIS 952, ***; 220 Ill. Dec. 953
DIANNE L. MEYER and THE SPAUDIE FAMILY TRUST, by Bernice E. Spaudie, Trustee,
Petitioners-Appellants, v. FIRST AMERICAN TITLE INSURANCE AGENCY OF MOHAVE, INC.,
Respondent-Appellee.
No. 2-96-0381
APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
285 Ill. App. 3d 330; 674 N.E.2d 496; 1996 Ill. App. LEXIS 952; 220 Ill. Dec. 953
December 19, 1996, FILED
SUBSE(~UENT HISTORY: [**'1] Released for Publication January 22, 1997.
PRIOR HISTORY: Appeal from the Circuit Court of Du Page County. No. 95--rvlR--349.
Honorable John W. Darrah, Judge, Presiding.
DISPOSITION: Reversed and remanded.
CASE SUI~II~IARY
PROCEDURAL POSTURE: Petitioners, judgment creditors, sought review of a ruling by
the Circuit Court of Du Page County (Illinois) that dismissed their action for enforcement
of a registered foreign judgment against respondent debtor, and granted the debtor
accord and satisfaction.
OVERVIEW: Alleged judgment creditors obtained a foreign judgment against the debtor
and later registered the judgment in the home state. The court below, in the home state,
found accord and satisfaction and dismissed the judgment creditors' action. The court
determined that once the judgment had been registered in the home state, additional
orders from the foreign state should have been inapplicable as to the registered
judgment. The court found that the foreign orders that had been entered ex parte as to
the judgment creditors could have been collaterally attacked. The court found that the
debtor did not sufficiently establish that it had made payment to the proper parties.
OUTCOI~IE: The court reversed the prior judgment and remanded the case for
determination in accordance with the court's opinion.
CORE TERt4S: satisfaction, registered, foreign judgment, registration, judgment creditor,
original judgment, ex parte, Uniform Act, satisfaction of judgment, holder, judgment debtor,
proper parties, successor, post-judgment, dissolved, vacate, reconsideration, satisfaction in
full, domestic judgment, right to appeal, proper standard, final judgment, absurd result, et
seq, interpreting, collaterally, dissolution, originating, nullified, enforcing
LexisNexis(TM) HEADNOTES - Core Concepts - · Hide Concepts
~ Civil Procedure > Entry of,~udqments > Enforcement & Execution > Foreiqn Judgments
HNl.+.Once a foreign judgment has been filed, it has the same effect and is subject to the
same procedures, defenses and proceedings for reopening, vacating, or staying as
http://www.lexis.com/researchJretrieve? m=79d64257cb4089fd3062310759cc4510&csvc=l... 2/5/2003
Get a Document - by Citation - 285 Ill. App. 3d 330 Page 2 of 9
any other judgment of a circuit court. 735 Ill. Comp. Stat. 5/12-652. A collateral
attack may be had on a foreign judgment based upon the defenses of fraud in the
procurement of the judgment or the lack of jurisdiction in the foreign court.
~ Civil Procedure > Relief From Judqment > Discharqe, Release & Satisfaction
HN2~When a valid order of release or satisfaction of judgment is entered, an obligor is
relieved of his duty to further satisfy the judgment. Thus, orders entered pursuant
to 735 Ill. Comp. Stat. 5/12-183, dealing with the release of judgment, should be
reviewed on appeal under the same standard of review as orders entered pursuant
to 735 Ill. Comp. Stat. section 5/2-1401, dealing with relief from judgments.
~ Civil Procedure > Appeals > Standards of Review > Abuse of Discretion
H~3~.A reviewing court should only interfere with a trial court's decision on whether a
release or satisfaction of judgment has been properly proved where it is shown that
the trial court abused its discretion. 735 Ill. Comp. Stat. 5/12-83.
~ Civil Procedure > Relief From ]udqment > Discharqe, Release & Satisfaction
~~4~When dealing in the context of a party assuming or acquiring the right to be the
judgment creditor from the original judgment creditor, a circuit court shall grant a
motion pursuant to 735 Ill. Comp. Stat. 5/12-183 upon sufficient proofs that
payment to the proper parties has been made.
~ Civil Procedure > Relief From Judgment > Discharqe, Release & Satisfaction
H~S~Payment to a third party not in privity with the original judgment holder does not
protect the judgment creditor from paying the judgment to a proper successor in
interest.
COUNSEL: For Dianne L. Meyer, Bernice E. Spaudie, Trustee, Spaudie Family Trust,
Petitioners-Appellants: J. Robert Meyer, Attorney at Law, Hinsdale, IL. Robert G. Black,
Attorney at Law, Naperville, IL.
For First American Title Insurance Agency Of Mohave, Respondent-Appellee: Knuckles &
Jagel, Attorneys at Law, Naperville, IL. APPEARANCE ENTER DATE: 04/23/96. Peter H. Jagel,
Knuckles & Jagel, Naperville, IL. APPEARANCE ENTER DATE: 04/23/96.
JUDGES: PRESIDING JUSTICE McLAREN delivered the opinion of the court: BOWMAN and
THOMAS, JJ., concur.
OPINIONBY: McLAREN
OP]:N]:ON: ['331] [**497] PRESIDING JUS'I'~CE McLAREN delivered the opinion of the
court:
The petitioners, Dianne Meyer and the Spaudie Family Trust, by Bernice Spaudie, trustee, are
Illinois residents and appeal from the [*:332] entry of an order by the circuit court, upon
motion of the respondent, First American Title Insurance [***2] Agency of Mohave, Inc.
(First American), which found satisfaction of their registered Illinois judgment. 735 ILCS
5/12--652 (West 1994). We reverse and remand.
The procedural posture of this case is unique in Illinois. On February 27, 1990, in Arizona
case number CV 88--07376 (Arizona 1988 judgment), the respondent had a judgment
entered against it, in the amount of $ 688,991.01, with post-judgment interest set at 10%,
in favor of Fairfax Industries, Inc. (Fairfax). The respondent appealed, and the Arizona Court
of Appeals affirmed the judgment, also entering an additional award of $ 8,200 in attorney
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fees against the respondent. Subsequently, the Arizona Supreme Court, on June 29, 1993,
denied the respondent's request for further review of the Arizona 1988 judgment and ordered
the respondent to pay additional costs of $ 250 and additional attorney fees totalling $ 2,500.
On July 1, 1989, Fairfax was dissolved under Illinois law. The petitioners in the case at bar
allege that, as of that date, the beneficial rights to 50% of all of the outstanding shares of
common stock in Fain"ax were held by petitioner Meyer and the remaining 50% was held by
petitioner the Spaudie Family Trust. [***3]
On October 25, 1992, a separate action was filed in Arizona, with an Arizona case number of
CV 92--92186 (Arizona 1992 action), for a declaration of rights with respect to claims
formerly belonging to Fain"ax. Apparently, the Arizona 1992 action was instigated because a
third-party judgment creditor of Fain"ax wished to satisfy its own judgment from the award
which Fain"ax was to receive from First American. Fain"ax was neither named nor joined as a
party in the Arizona 1992 action. On February 12, 1993, as part of the Arizona 1992 action,
John Robert Meyer, attorney for the petitioner Dianne Meyer, signed and filed an affidavit in
which he stated, "from and after December 30, 1988, the Hamilton Trust and the Oradell
Trust were each the owners of an undivided one-half interest in the Fairfax Cause of Action.
The Trusts presently remain the owners and holders of all rights and interests in the Fain"ax
Cause of Action." At oral argument before this court, counsel for the petitioners indicated
that, at the time John Robert Meyer made this statement, he reasonably believed it to be
true.
In October 1994, First American interpleaded in the Arizona 1992 action. First American did
not [***4] name Dianne Meyer or the Spaudie Family Trust as parties to the interpleader.
On November 4, 1994, the court in the Arizona 1992 action ordered that, upon payment of $
1,032,792.18 to the clerk of the court, First American would be dismissed [*-4cj8] from
the Arizona 1992 action. According [*333] to counsel for the petitioners when appearing
for oral argument in this appeal, the Arizona court found that insufficient consideration was
provided by the Hamilton Trust and the Oradell Trust to support the alleged "spin-off" from
Fain"ax to those trusts. Further, the court ordered that First American "be forever released
and discharged from any and all liability to all parties to this action." The order also
purported to adjudge "that the Fain"ax Judgment is and has been satisfied in full."
On May 26, 1995, petitioner Dianne Meyer instituted the present action by filing a verified
petition in the circuit court of Du Page County, Illinois, to enforce the Arizona 1988
judgment. On June 15, 1995, the trial court granted the motion of the Spaudie Family Trust
for leave to intervene nunc pro tunc in the Meyer petition, and the Spaudie Family Trust filed
a similar petition. The petitions related that a transfer [***5] of stock in Fain"ax occurred,
with Dianne Meyer and the Spaudie Family Trust as recipients, and that Fain"ax was dissolved
as of July 1, 1989. Therefore, the petitions concluded that 50% of the right, title, and
interest in the judgment against First American belonged to Dianne Meyer, while the other
50% belonged to the Spaudie Family Trust.
In addition, the petitions alleged that, in October 1994, "which was more than five years
after Fairfax' dissolution on July 1, 1989, First American filed an attempted, but incomplete
and ineffective, interpleader action" in the Arizona 1992 action. According to the petitions,
the court in the Arizona 1992 action could not properly entertain jurisdiction over Fain"ax, due
to the fact that the Illinois Business Corporation Act of 1983 provides that no action will lie
against an Illinois corporation dissolved for more than five years. 805 ILCS 5/12.80 (West
1994). Further, the petitions set forth that First American did not attempt to serve the Illinois
Secretary of State on behalf of Fairfax as a dissolved corporation (see 805 ILCS 5/5.05, 5.25
(West 1994)), nor did First American name Fairfax's alleged successors in interest, Dianne
Meyer or the [***6] Spaudie Family Trust, in the Arizona 1992 action.
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As a result of these petitions, the Arizona 1988 judgment was registered in Illinois.
On July 14, 1995, or more than 30 days after the registration of the Arizona 1988 judgment
in Illinois, First American first entered its general appearance. On that date, First American
moved to strike the May 26, 1995, registration of the Arizona 1988 judgment, asserting that
the Arizona 1988 judgment had been fully satisfied, as determined by outcome of the Arizona
1992 action. First American later amended its motion, but still maintained that the
registration [*:534] in Illinois could not stand because of the result of the Arizona 1992
action.
On September 6, 1995, the trial court denied First American's amended motion to vacate the
registration. First American moved for reconsideration of that order. On November 15, 1995,
the trial court denied the motion for reconsideration. In making its ruling, the trial court
stated that First American "must procure something in an Arizona court that is traditionally
recognized as a release or a satisfaction and present it to this court." The trial court
recommended that First American return to the court that issued [***7] the Arizona 1988
judgment to accomplish this purpose. "Do that and I'll honor it," the trial court admonished.
On December 4, 1995, First American moved for an emergency order of satisfaction,
pursuant to section 12--183 of the Code of Civil Procedure (Code) ( 735 ILCS 5/12--183
(West 1994)). That motion asserted additional orders in Arizona entered on November 17,
1995, and November 18, 1995.
On December 15, 1995, First American filed a notice of appeal from the November 15, 1995,
order denying its motion for reconsideration and to vacate.
During the time granted for briefing on First American's December 4, 1995, motion, First
American then set out another Arizona order, this one entered on December 21, 1995. In
that order, the Arizona court that entered the judgment in the Arizona 1988 judgment found
First American's liability "specifically satisfied in full as to any and all claims by Dianne L.
Meyer and the Spaudie Family Trust, *** as set forth in Cause [**499] No. 95 MR 0349
filed in the Circuit Court of the Eighteenth Judicial Circuit, Du Page County, Illinois, or
otherwise." First American's motion to procure that December 21, 1995, order expressly
premised such a finding on the [***8] judgment entered on November 4, 1994, in the
Arizona 1992 action (the interpleader which was ex parte as to the petitioners herein). The
Arizona order dated December 21, 1995, did not recite any payment of the Arizona 1988
judgment to the petitioners and did not recite any releases executed by the petitioners.
In response, Dianne Meyer and the Spaudie Family Trust each filed affidavits which stated:
they have never received any payments whatsoever from First American on the Arizona 1988
judgment; they have never released First American from any judgment in any action; they
have never filed an appearance in, or authorized anyone to appear on their behalf, in any
proceeding in Arizona; they never received any summons or service of any kind in either the
Arizona [*:535] 1988 judgment or the Arizona 1992 action; and they were never personally
served with any notice of any motion to obtain the December 21, 1995, order of satisfaction
in the Arizona '88 judgment. There is nothing in the record of the instant case to controvert
these allegations of fact. Thus, the Arizona proceedings were prima facie ex parte as regards
the petitioners. See Bank of Ravenswood v. Domino's Pizza, Inc., [***9] 269 Ill. App. 3d
714, 720, 207 Ill. Dec. 165, 646 N.E.2d 1252 (1995). The petitioners also moved to strike
the filing of the Arizona December 21, 1995, order.
On February 27, 1996, the petitioners filed a motion, later denied, with the Arizona court to
vacate the Arizona court's December 21, 1995, order.
On February 28, 1996, the circuit court of Du Page County entered an order granting First
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American's motion for an order of satisfaction and denying the petitioners' motions to strike
the filing of the Arizona December 21, 1995, order. Specifically, the court ordered, "In
accordance with the Code of Civil Procedure, the judgment heretofore entered by the court in
the above entitled matter is hereby vacated and held for naught." The petitioners now appeal
the circuit court of Du Page County's February 28, 1996, order in our court.
On March 21, 1996, this court granted First American's motion to dismiss voluntarily, with
prejudice, its appeal stemming from the circuit court's November 15, 1995, order.
Section 12--652 of our Code provides that, H~~once a foreign judgment has been filed, it
"has the same effect and is subject to the same procedures, defenses and proceedings for
reopening, [***:[0] vacating, or staying" as any other judgment of a circuit court. 735
ILCS 5/12--652 (West 1994). In Illinois, a collateral attack may be had on a foreign
judgment based upon the defenses of fraud in the procurement of the judgment or the lack
of jurisdiction in the foreign court. Practice Manaqement Associates, Inc. v. Thurston, 225 III.
App. 3d 470, 474, 167 Ill. Dec. 767, 588 N.E.2d 408 (1992). Further, other courts,
interpreting the Uniform Enforcement of Foreign Judgments Act (Uniform Act) ( 735 ILCS
5/12--650 et seq. (West 1994)), have held that "satisfaction, lack of due process, or other
grounds that make the judgment invalid or unenforceable" (emphasis added) may constitute
valid grounds for vacating a judgment which stemmed from the registration of a foreign
judgment. Welltech, Inc. v. Abadie, 666 So. 2d 1234, 1236 (La. App. 1996); Wooster v.
Wooster, 399 N.W.2d 330, 333 (S.D. 1987); Matson v. Matson, 333 N.W.2d 862, 867 (Minn.
1983).
Section 12--183(h) of our Code states, "Upon the filing of a release or satisfaction in full
satisfaction of judgment, signed by the [*:~:~6] party in whose favor the judgment was
entered or his or her attorney, the court shall [***:1:[] vacate the judgment, and dismiss
the action." 735 ILCS 5/12--183(h) (West 1994). The Appellate Court, First District, has held
that this section does not bar the judgment creditor's right to appeal following payment of
that judgment. Herron v. Anderson, 254 III. App. 3d 365, 371-72, 193 Ilk Dec. 484, 626
N.E.2d 1035 (1993); see also In re Marriaqe of Pitulla, 202 Ill. App. 3d 103, 110, 147 Ill.
Dec. 479, 559 N.E.2d 819 (1990). While the instant case differs slightly in that the
petitioners, the alleged judgment creditors, were [**500] not the recipients of the
payment allegedly made by First American, we see no reason to deny the petitioners the
right to appeal the trial court's granting of the respondent's section 12--183 motion ( 735
ILCS 5/12--183 (West 1994)).
Neither Herron, 254 Ill. App. 3d 365, 193 Ill. Dec. 484, 626 N.E.2d 1035~ In re Marriaqe of
Pitulla, 202 Ill. App. 3d 103, 147 Ill. Dec. 479, 559 N.E.2d 819, nor the parties in the present
case make mention of what our burden of review should be with regard to orders granted
under section 12--183 ( 735 ILCS 5/12--183 (West 1994)). Our review of Illinois ~avv reveals
that no other court has had occasion to determine [**'12] the proper standard of review
for orders entered pursuant to section 12--183 ( 735 ILCS 5/12--183 (West 1994)).
~When a valid order of release or satisfaction of judgment is entered, an obligor is relieved
of his duty to further satisfy the judgment. Thus, vve determine that orders entered pursuant
to section 12--183, dealing with the "release of judgment" ( 735 ILCS 5/12--183 (West
1994)), should be reviewed on appeal under the same standard of review as orders entered
pursuant to section 2--1401 of the Code, dealing with "relief from judgments" ( 735 ILCS
5/2--1401 (West 1994)). Consequently, ~~3¥a reviewing court should only interfere with a
trial court's decision on whether a release or satisfaction of judgment has been properly
proved where it is shown that the trial court abused its discretion. 735 ILCS 5/12--183 (West
1994); see also Kaput v. Hoey, 124 Ill. 2d 370, 378, 125 Ill. Dec. 202, 530 N.E.2d 230
(1988); Smith v. Cole, 256 Ill. App. 3d 806, 809, 197 Ill. Dec. 962, 632 N.E.2d 31 (1993)
(abuse of discretion is proper standard of review for petitions for relief from judgment
brought under section 2--1401 of the Code.
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Turning to the merits, we determine that the circuit court [**'13] erred for three reasons.
First, the December 21, 1995, Arizona order should not have directly affected the Tllinois
registered judgment. Second, because the Arizona orders were entered ex parte as to the
petitioners, they may be collaterally attacked in the circuit court. Third, First American did
not sufficiently establish that "payment to the proper parties" was made in accordance with
section 12--183 ( 735 ILCS 5/1_2--183 (West 1994)).
First, the circuit court erred by not recognizing that the [*337] December 21, 1995, order
did not directly affect the Illinois registered judgment. Once the Arizona 1988 judgment was
registered in Illinois, an Illinois judgment with a legally independent life of its own was
formed. Light v. Light, 12 Ill. 2d 502, 508-09, 147 N.E.2d 34 (1957); 735 ILCS 5/12--652
(West 1994). In Light, the plaintiff registered a Missouri judgment in Illinois. After the
judgment was registered, the judgment debtor claimed that the foreign judgment had
become satisfied and uncollectible by law in Missouri. After analyzing Missouri law, the Illinois
Supreme Court disagreed with the defendant, but also held that the uncollectibility of the
Missouri judgment had no [**'14] effect on the collection of the Illinois registered
judgment. Liqht, 12 Ill. 2d at 508-09. The court held that "unless the registration is set aside
after a hearing [in Illinois], it is the registered judgment that becomes the final judgment of
the Illinois court." (Emphasis added.) Light, 12 Ill. 2d at 508.
The Illinois statutes pertaining to the registration of foreign judgments are an enactment of
the Uniform Act ( 735 ILCS 5/12--650 et seq. (West 1994)). The purpose of the Uniform Act
is to implement the full faith and credit clause of the United States Constitution (U.S. Const.,
art. IV, § 1) and to facilitate interstate enforcement of judgments in any jurisdiction where
the judgment debtor is found. Practice Manaqement Associates, Inc., 225 Ill. App. 3d at 473.
By statute, the Uniform Act is to be interpreted and construed to effectuate these purposes,
as well as to make uniform the law of the states which enact it. 735 ILCS 5/12--657 (West
1994).
Thus, we examine a case similar to Light, which arose under Connecticut law. In Burchett v.
Roncari, 181 Conn. 125, 434 A.2d 941 (Conn. 1980), a judgment creditor sought the
enforcement of a Kentucky [**'15] judgment that it had registered in Connecticut. After
registration in Connecticut, the Kentucky judgment was nullified by post-judgment action
[*'501] taken in the Kentucky court. The defendant claimed that the Connecticut
registered judgment, in turn, was nullified by the post-judgment action taken by the
Kentucky court. In ruling that the post-judgment action of the Kentucky court had no effect
on the Connecticut registered judgment, the Connecticut Supreme Court stated, "The
Connecticut judgment *** had its own independent life-support system. A domestic
judgment enforcing a foreign judgment is not directly affected by subsequent proceedings in
the originating state." (Emphasis added.) Burchett, 434 A.2d at 943; see also Huntington
National Bank v. Sproul, 116 N.M. 254, 861 P.2d 935 (N.M. 1993) (once an Ohio judgment
was registered in New Mexico, the judgment was converted into a New Mexico judgment).
Second, because the record in the instant case reveals that the [*338] subsequent
proceedings in Arizona, as well as the original proceedings in Arizona, were ex parte as to the
petitioners, the trial court erred in not allowing the petitioners the right to attack those
orders collaterally. [**'16] A judgment rendered by a court which "fails to acquire
jurisdiction of either the parties or the subject matter of the litigation may be attacked and
vacated at any time or in any court, either directly or collaterally." State Bank v. Thill, 113 III.
2d 294, 309, 100 Ill. Dec. 794, 497 N.E.2d 1156 (1986); see also Dec v. Manning, 248 Ill. --
App. 3d 341, 347, 187 Ill. Dec. 776, 618 N.E.2d 367 (1993). Thus, aside from the fact that
the Arizona December 21, 1995, order has no direct effect on the independent Illinois
judgment, that order was also issued ex parte as to the petitioners and, consequently, may
be attacked collaterally by the petitioners in this case.
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Third, we determine that the circuit court erred in ordering the petitioners' case dismissed
due to a satisfaction of judgment because First American did not sufficiently establish that a
satisfaction had been entered under section 12--183 ( 735 ILCS 5/12--183 (West 1994)).
Section 12--183(h) provides, "Upon the filing of a release or satisfaction in full satisfaction of
judgment, signed by the party in whose favor the judgment was entered or his or her
attorney, the court shall vacate the judgment, and dismiss the I'***:~?] action." 735 ILCS
5/12--183(h) (West 1994). The record reveals that First American did not file a satisfaction
signed by the party in whose favor the judgment was entered. Also, the record shows that
the circuit court relied exclusively on the December 21, 1995, order of the Arizona court, and
not any such signed satisfaction, when it granted First American's motion. Thus, because the
clear terms of the statute were not met, we have the authority to reverse the trial court's
decision.
However, we note that the present case illustrates an inherent problem with the language of
section 12--183 ( ?35 ILC$ 5/12--183 (West 1994)). Where the original judgment creditor's
rights to collect on a judgment have accrued to a different party, who then becomes the
judgment creditor, and the judgment debtor then satisfies the judgment with that different
party, the terms of section 12--183 may be difficult to meet. Section 12--183 requires a
"release or satisfaction *** signed by the party in whose favor the judgment was entered."
?35 ILCS 5/12--183(h) (West 1994). Technically, the party which assumes or acquires the
right to be judgment creditor could never have a valid satisfaction order entered
against it, even where it had signed a satisfaction document, because it was not the party "in
whose favor the judgment was entered." 735 ILCS 5/12--183(h) (West 1994). When
construing a statute, a court must ascertain and give effect to the legislature's intent, the
best indicator of which is the language of the statute itself. First of America Bank v. ~etsch,
[~] 166~11. 2d 165, 181, 209 ~11. Dec. 657~ 651 ~.F.2d 1105 (1995); Moony. Smith,
276 Ill. App. 3d 958, 213 ~11. Dec. 107, 658 ~.E.2d 856 (1995). However, because section
12--183 does not contemplate a situation where the right to be the judgment creditor has
been transferred to another party, we find it ambiguous in such a context.
This court has previously determined that the purpose of section 12--183 is, in relevant part,
to ensure that proof of payment of the judgment to the proper parties has been made, thus
barring any further attempt by the judgment creditor to enforce I'**~0~] the judgment.
Heller v. Travel America, Inc., 229 Ill. App. 3d 439, 444, 170 Ill. Dec. 580, 593 ~.F.2d
(1992), quoting In re Marriaqe of Pitulla~ 202 Ill. App. 3d at 110. That being so, we
determine that, ~when dealing in the context I'~**:!.~] of a party assuming or acquiring
the right to be the judgment creditor from the original judgment creditor, a circuit court shall
grant a motion pursuant to section 12--183 ( 735 ~LC$ 5/12--183 (West 1994)) upon
sufficient proofs that "payment to the proper parties has been made." This construction
avoids an otherwise absurd result. See People v. Coleman, 166 Ill. 2d 24?, 253~ 209 Ill. Dec.
782, 652 ~.E.2d 322 (1995) (a court interpreting a statute must assume that our legislature
did not intend an absurd result).
We determine that the circuit court erred in ruling that First American had sufficiently proved
that "payment to the proper parties" was made. First American filed the Arizona court's
December 21, 1995, order with the circuit court, and the circuit court relied exclusively upon
that order when granting First American's section 12--183 motion. Mindful of the proposition
that "Iai domestic judgment enforcing a foreign judgment is not directly affected by
subsequent proceedings in the originating state" ( Burchett, 434 A.2d at 943), we determine
that the mere order of one of our sister states, by itself, does not constitute such sufficient
proof. This is especially !'*~20] so where, as here, the order was entered ex parte as to
the petitioners.
We also determine that, while the circuit court erred in dismissing the petitioners' registered
judgment, equity demands that we remand this case for an evidentiary hearing. Our supreme
court has envisioned and authorized such a hearing. Liqht, 12 Ill. 2d at 508 (the registration
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of a foreign judgment may be set aside "after a hearing" (emphasis added)).
Upon remand, the trial court should be aware that our supreme court held, under the
Uniform Act, that, if there is a defense that bars the foreign judgment completely, then final
judgment on the Illinois registered judgment must be for the party alleged to be the
judgment debtor. Light, 12 III. 2d at 514. Satisfaction would be such a defense. 735 ILCS
5/12--652, 12--183 (West 1994); Welltech, Inc., 666 So. 2d at 1236; Wooster, 399 N.W.2d
at 333; Matson, 333 N.W.2d at 867.
[*340] Turning briefly to other issues, we determine that the petitioners' argument that
the respondent has waived its right to raise the defense of satisfaction by not raising it in
pleadings within 30 days lacks merit. In Illinois, the defense of payment and satisfaction
[**'2:1] may be raised by a defendant at any time. Klier v. Siegel, 200 III. App. 3d 121~
125-27, 146 III. Dec. 620, 558 N.E.2d 583 (1990).
In addition, we determine that the respondent was not barred by res judicata from making
its section 12--183 motion to dismiss, based upon the Arizona court's December 21, 1995,
order. While the respondent had, indeed, made similar motions under the same statute, none
of them relied upon the December 21, 1995, order of the Arizona court. Instead, they relied
upon the outcome and orders of the Arizona 1992 action. Further, the respondent dropped its
appeal of the denial of its previous motions only after the trial court dismissed the
petitioners' registered judgment. The petitioners cite no case law for the proposition that res
judicata applies in such an instance.
In closing, we note that the respondent alleges in its brief that the reversal of the trial court's
satisfaction order would make Illinois a State in which:
"Anyone could claim to be successors in interest of a foreign judgment and, even
though the original judgment holder had been satisfied, they would still be
entitled to a second payment of the judgment and any subsequent [***:2:2]
'successors in interest' would then be entitled to third, fourth, and fifth payments
of the same judgment."
The respondent's statement starts from a false premise, that is, that "the original judgment
holder had been satisfied." Fairfax, the original judgment holder, did not satisfy its judgment
against First American before dissolution. At the crux of this case is whether the petitioners
are the proper successors in interest of the Fairfax judgment. *tNS~ [**SO:~] Payment to a
third party not in privity with the original judgment holder does not protect the judgment
creditor from paying the judgment to a proper successor in interest. See 49 C.J.S. Judgments
§ 523, at 975 (1947).
The judgment of the circuit court of Du Page County is reversed, and the cause is remanded
in accordance with this opinion.
Reversed and remanded.
BOWMAN and THOMAS, JJ., concur.
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CERTIFICATE OF SERVICE
AND NOW, this~ ~ day of ~, 2003, 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. Mail at Harrisburg, Pennsylvania,
postage prepaid, addressed to:
Amy J. Mendelsohn, Esquire
Rhoads & Sinon
One South Market Square, 12th Floor
P. O. Box 1146
Harrisburg, PA 17108-1146
Jaqueline M. Verney, Esquire
44 South Hanover Street
Carlisle, PA 17013
Stanley J. A. Laskowski, Esquire ..~/,~x/~ ~ ~
Caldwell & Kearns
3631 N. Front St.
Harrisburg, PA 17110
Ms. Jane N. Heflin
270 North Garfield
Lombard, IL 60148
R~ard C. Rupp, Esquir~ /-//J
CERTIFICATE OF SERVICE
AND NOW, this ~'~/'~ day of,lmlllll~, 2003, 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. Mail at Harrisburg, Pennsylvania,
postage prepaid, addressed to:
Amy J. Mendelsohn, Esquire
Rhoads & Sinon
One South Market Square, 12th Floor
P. O. Box 1146
Harrisburg, PA 17108-1146
Jaqueline M. Verney, Esquire
44 South Hanover Street
Carlisle, PA 17013
Stanley J. A. Laskowski, Esquire
Caldwell & Kearns
3631 N. Front St.
Harrisburg, PA 17110
Ms. Jane N. Heflin
270 North Garfield
Lombard, l~ ~
t /~~hard C. Rupp