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INDEX TO WITNESSES
FOR PETITIONER DIRECT CROSS REDIRECT
David A. Brown By Ms. Mendelsohn 7 --
By Ms. Gerber 15
George Clouser By Ms. Mendelsohn 35 --
By Ms. Gerber 39
Mark Heckman By Ms. Mendelsohn 56 --
By Ms. Gerber 60
FOR MARILYN GERBER
Tammy Sheaffer By Ms. Gerber 76 89
By Ms. Mendelsohn 87
INDEX TO EXHIBITS
FOR THE PETITIONER IDENTIFIED ADMITTED
A - Copy of agreement of sale 14 74
B - George Clouser appraisal 38 74
C - Mark Heckman appraisal 59 74
2
Monday, December 16, 2002
2 9:35 a.m.
3 THE COURT: Ms. Mendelsohn, is this your
4 petition, ma'am?
5 MS. MENDELSOHN: Yes, it is. May it please
6 the Court, we are here today on PNC Bank's petition to
7 authorize the sale of the residence of Mildred J. Gerber.
8 Your Honor, I have in the courtroom with me
9 four witnesses to testify to the Court today, should it
10 please the Court. And, Your Honor, we are here because PNC
11 Bank currently is serving as the guardian of the estate of
12 Mildred Gerber. And in its capacity as guardian of the
13 estate, PNC Bank holds a piece of real estate in New
14 Cumberland, and that real estate has been put up for sale.
15 And we have currently an agreement of sale
16 on that particular piece of property. So we are here today
17 to ask the Court's approval for the sale of that real
18 estate.
19 Now, in complete candor to the Court, Your
20 Honor, we have received notice from the buyers that they
21
are very reticent to move forward with the sale of the
22 house at this point because they feel that they would be
23 threatened if they did move into the house by Marilyn
24 Gerber, because of some of the actions that have happened
25 since they signed the agreement of sale.
So today, in addition to asking the Court to
2 approve the sale to the buyers, the Loshes, we would ask
3 the Court to also entertain our request to sell the house
4 for the lower appraised value, in the event that the Loshes
5 do back out of the deal.
6 Your Honor, we are prepared to have these
7 witnesses testify. It is Dave Brown, behind me here. Dave
8 Brown is a vice president of PNC Bank, and he is primarily
9 responsible for handling the guardianship estate.
10 We also have Fred Gerber. He is the
11 guardian of the person of Mildred Gerber.
12 And we have the two individuals who
13 appraised the real estate, Mark Heckman, sitting in the
14 first row, and George Clouser, sitting behind him.
15 THE COURT: Thank you, ma'am. Who is with
16 you, Mr. Rupp?
17 MR. RUPP: Your Honor, I am here as counsel
18 for guardian of the person, but it is the petition of the
19 bank that --
20 THE COURT: You are here by yourself.
21 MR. RUPP: Yes, Your Honor.
22 THE COURT: And I see Ms. Gerber is here in
23 the courtroom.
24 MS. GERBER: Yes, sir. I have witnesses
25 too.
1 THE COURT: Pardon me, ma'am?
2 MS. GERBER: I have witnesses as well, Your
3 Honor.
4 THE COURT: All right, fine. I see Mr.
5 Duncan just walked in the courtroom, who is the auditor I
6 appointed in the case. And, Mr. Duncan, did I appoint you
7 auditor on both cases or just one case?
8 MR. DUNCAN: May I approach the Bench,
9 please?
10 THE COURT: Yes, sir.
11 MR. DUNCAN: Your Honor, I was appointed in
12 the matter of the Estate of Fred Gerber. I have not been
13 appointed in the capacity of auditor or by the Court to
14 review the guardianship for Mrs. Gerber.
15 THE COURT: Well, the Estate of Mrs. Gerber.
16 I asked Mr. Duncan to come over earlier. Shouldn't he be
17 appointed on the Mildred Gerber estate too?
18 MS. GERBER: Your Honor --
19 THE COURT: Ms. Mendelsohn.
20 MS. MENDELSOHN: I do think that would be
21 appropriate for him to be appointed as auditor in that
22 capacity as well with respect to the accounting that was
23 filed for the trust of Mildred Gerber. That was what we
24 were in court in our status conference on with you several
25 weeks ago.
5
1 THE COURT: Mr. Rupp?
2 MR. RUPP: I am in concurrence with that,
3 Your Honor.
4 THE COURT: He should be appointed on both.
5 MR. RUPP: Both trusts, yes.
6 MS. GERBER: Yes, I am in concurrence. The
7 status conference hearing on November 27 was for the Estate
8 of Mildred Gerber.
9 THE COURT: That wasn't a hearing, ma'am.
10 That was just a --
11 MS. GERBER: The status conference was
12 actually on the Estate of Mildred Gerber. It was not on
13 Fred Gerber.
14 THE COURT: Well, ma'am, do you agree?
15 MS. GERBER: So I am in concurrence.
16 THE COURT: You agree Duncan should be
17 appointed.
18 MS. GERBER: For the record, I am in
19 concurrence, yes.
20 THE COURT: All right.
21 (The following Order was entered.)
22 AND NOW, December 16, 2002, in accordance
23 with Cumberland County Orphans' Court Rule 6.10-2(a), the
24 Court appoints William A. Duncan, Esquire, as Auditor to
25 pass upon the Objections filed in the Estate of Mildred J.
1 Gerber.
2 By the Court,
3 /s/ Georqe E. Hoffer, P.J.
4 MS. MENDELSOHN: Your Honor, I believe it is
5 the Trust of Mildred J. Gerber. That was the account that
6 the accounting was filed for was the trust.
7 THE COURT: Oh.
8 MS. GERBER: Your Honor --
9 THE COURT: Auditor in the Trust account of
10 Mildred J. Gerber. All right.
11 MS. GERBER: Your Honor, on Thursday, we
12 submitted -- on Thursday I submitted a letter to you
13 because Mr. Rupp had submitted inaccurate dates, and I
14 submitted a letter with Orders to the effect to order the
15 accounting for Fred Gerber, Sr., and Mildred J. Gerber, for
16 both trusts.
17 THE COURT: I just took care of that, ma'am.
18 All right, Mr. Duncan, you have both cases. If you want to
19 leave, you are welcome to leave, if you want to stay, you
20
are welcome to stay. Whatever you would like.
21 MR. DUNCAN: Thank you, Your Honor. For the
22 record, as auditor in both proceedings, I will be notifying
23 counsel and the parties, I believe one party is
24 self-represented, as to a hearing or any briefing that will
25 be required.
1 THE COURT: Thank you, sir. Ail right, Mrs.
2 Mendelsohn, do you have a witness?
3 MS. MENDELSOHN: I do. The petitioner calls
4 Dave Brown.
5 Whereupon,
6 DAVID A. BROWN
7 having been duly sworn, testified as follows:
8 DIRECT EXAMINATION
9 BY MS. MENDELSOHN:
10 Q Good morning, sir. Would you please state
11 your name for the record?
12 A My name is David A. Brown.
13 Q Mr. Brown, what do you do for a living?
14 A I am a trust officer with PNC Bank.
15 Q And how long you have you been a trust
16 officer?
17 A With PNC, I'm in my fourth year. I have
18 been a trust officer for about eighteen years.
19 Q And in that capacity, have you had an
20 occasion to work on the guardianship estate of Mildred J.
21 Gerber?
22 A Yes.
23 Q And what have you done in that capacity?
24 A I have handled the day-to-day administration
25 of the account.
1 Q Are you familiar with Mildred Gerber's
2 family, sir?
3 A Yes.
4 Q Could you tell me about her family?
5 A Mildred has a son, Fred, who lives in the
6 Washington, D.C. area. A daughter Marilyn, who lives in
7 New Cumberland. And a daughter, Jane, who lives in the
8 Chicago area.
9 Q So in addition to having a guardian of the
10 estate, does Mildred Gerber also have a guardian of her
11 person?
12 A Yes.
13 Q And who is that individual?
14 A Fred Gerber, her son.
15 Q Okay. Let's talk a little bit about what
16 you do as guardian of the estate with respect to some of
17 the real estate that Mrs. Gerber owns. Does she own any
18 real estate, Mr. Brown?
19 A Yes. She owns a house at 623 Hill Top Drive
20 in New Cumberland.
21 Q Can you describe that house a little bit?
22 A It's about a 2000 square foot house with
23 five bedrooms.
24 Q And this is the house that is the subject of
25 the petition that has been filed today, is that correct?
1 A Yes.
2 Q Let's talk about some of your reasons for
3 filing that petition. Does Mrs. Gerber currently live in
4 that house?
5 A No, the house is vacant.
6 Q Where is it that Mrs. Gerber lives right
7 now?
8 A Mrs. Gerber lives in a nursing home in
9 Illinois.
10 Q How long has she been in that nursing home?
11 A She has been in the nursing home for the
12 last couple months.
13 Q Prior to moving to the nursing home, did she
14 live in her house?
15 A She lived from January of 2002 until about
16 August of 2002 with her daughter, Jane, in Illinois.
17 Q Okay. So is the house then vacant?
18 A Yes.
19 Q Does that concern you at all as guardian of
20 the estate?
21 A Yes, it does.
22 Q And why does that concern you?
23 A It concerns us because it is not earning any
24 income. It is actually costing us, and it is vacant and,
25 therefore, it is subject to the possibilities of vandalism,
10
1 theft or something breaking and nobody being on hand to
2 notice it.
3 Q Did you consult at all with the guardian of
4 the person, Fred Gerber, regarding your concerns about this
5 real estate?
6 A Yes.
7 Q And what was the reaction of Mr. Gerber?
8 THE COURT: Is this necessary, ma'am?
9 MS. MENDELSOHN: Well, Your Honor, we are
10 trying to establish the reasons that the guardian of the
11 estate has decided to sell the real estate to show that the
12 sale is in the best interests of Mrs. Gerber.
13 THE COURT: Well, you just told me it is
14 vacant.
15 MS. MENDELSOHN: Ail right. We will move
16 on, Your Honor.
17 BY MS. MENDELSOHN:
18 Q Mr. Brown, could you tell me what it cost to
19 maintain the house and whether that is a concern of yours
20 as well with respect to keeping the property?
21 A Well, in general terms I believe it is about
22 $8500.00 a year we have been paying in taxes, utilities,
23 maintenance.
24 Q And does the house earn any income right
25 now?
11
1 A No, it does not.
2 Q How about Mrs. Gerber's other assets, what
3 else does she own in addition to the house?
4 A In the guardianship, she has personal
5 property worth about $16,000.00, a note from her daughter,
6 Jane, worth about four thousand, and about $4,000.00 in
7 cash.
8 Q Okay. Does she have a trust account as
9 well?
10 A Yes.
11 Q And what is the value of that?
12 A Approximately $184,000.00.
13 Q What type of income does Mrs. Gerber earn?
14 A Well, she earns from the two trust accounts
15 a total of about $7600.00 a year on an estimated basis.
16 And she has pensions that pay her about $48,000.00 a year.
17 So her total income is approximately 56,000 a year.
18 Q All right. Now, what does it cost for Mrs.
19 Gerber to live on, let's say, an annual basis, if you can
20 give it to me that way, or a monthly?
21 A Pretty consistently about $5300.00 a month.
22 Q And so is there any concern of yours in
23 maintaining the real estate, if you do so, that Mrs. Gerber
24 may not have enough money to live off of?
25 A Well, inasmuch as the house consumes money
12
1 and doesn't earn income, yes, that is one of our concerns.
2 Q All right. Now, let's talk about the actual
3 agreement of sale that PNC has entered into. Before you
4 signed this agreement of sale, did you do anything in
5 preparation for listing the house?
6 A Yes, I had two appraisals prepared.
7 Q Who prepared those appraisals?
8 A George Clouser and Mark Heckman.
9 Q And what were the evaluations in those
10 appraisals?
11 A George Clouser's fixed the value at 159,000
12 and Mark Heckman at 175,000, with an average of 167,000
13 between the two of them.
14 Q And then how did you -- how did you come to
15 the conclusion to list the house at a specific price, and
16 what was that price?
17 A We listed the house for 179,9. We wanted to
18 list it ahead of the highest appraisal to give it a chance
19 to sell in what we thought was a fairly strong market.
20 Q And did the house sell?
21 A Yes.
22 Q And what was the offer that you received on
23 the house?
24 A $175,000.00.
25 Q Were there any particular contingencies that
13
1 were included in that agreement of sale?
2 A Inspection contingencies, radon was waived.
3 And they appeared to be pre-qualified.
4 Q Can you tell me about the buyers at all?
5 THE COURT: The what?
6 MS. MENDELSOHN: The buyers.
7 THE WITNESS: Tim and Joy Losh are residents
8 of New Cumberland, who have a young family, and are really
9 interested in moving to the house.
10 (Whereupon,
11 Petitioner's Exhibit No. 1
12 was marked for identification.)
13 MS. MENDELSOHN: Your Honor, may I approach
14 the witness?
15 THE COURT: Yeah.
16 BY MS. MENDELSOHN:
17 Q Sir, I am showing you what has been marked
18 as Petitioner's Exhibit A. Can you identify that document,
19 please?
20 A This is a copy of the agreement for sale
21 that the Loshes signed to purchase the house.
22 Q Does it appear to be a true and correct copy
23 of that agreement of sale?
24 A It appears to be.
25 MS. MENDELSOHN: Thank you. Your Honor, I
14
1 have no further questions for Mr. Brown.
2 THE COURT: Mr. Rupp.
3 MR. RUPP: I have no further questions.
4 THE COURT: Ms. Gerber.
5 MS. GERBER: Yes, sir.
6 CROSS-EXAMINATION
7 BY MS. GERBER:
8 Q Good morning, Mr. Brown.
9 A Good morning.
10 Q Can you tell me at what date you took over
11 guardianship of the estate for Mrs. Gerber?
12 A I believe it was in February of 2001.
13 Q Are you sure about that?
14 THE COURT: Well, ma'am, come on.
15 MS. GERBER: It was actually March 22nd.
16 THE COURT: All right, fine.
17 BY MS. GERBER:
18 Q Okay. Once you took possession of -- once
19 you took possession of the estate, could you tell me what
20
you did, what did you do, what was the process you did?
21 THE COURT: That is not on the table today,
22 ma'am. What is on the table today is the sale of this
23 house and whether I am going to approve it. What is your
24 next question?
25 MS. GERBER: What I am going to argue to you
15
1 sir, their inventory --
2 THE COURT: Please do not talk over top of
3 me. I will try not to talk on top of you. Now, what is
4 your next question?
5 BY MS. GERBER:
6 Q When you had to, by Pennsylvania law, when
7 you had to do an inventory, I believe it is within ninety
8 days, would you describe the total value of the inventory
9 that you assessed Mrs. Gerber's estate?
10 MS. MENDELSOHN: Objection. It is not
11 relevant to the issue at hand.
12 THE COURT: Ms. Gerber, we are here on
13 whether I am going to approve the sale of the house.
14 Please don't make me continue to tell you that.
15 MS. GERBER: Sir, in order -- I would like
16 to then make for the record that there are outstanding
17 motions that have not been heard, and including the
18 significant exceptions to moneys that I will define that
19 have been raided from --
20 THE COURT: You have to speak louder, ma'am.
21 MS. GERBER: For the record, I would like to
22 state --
23 THE COURT: Everything we do is for the
24 record here, ma'am. You needn't say that again.
25 MS. GERBER: Out of my nervousness, sir, I
16
might say I apologize. We are here to argue or to -- the
2
pro or con the sale of the house.
3 THE COURT: Yes, ma'am.
4 MS. GERBER: I am arguing against the sale
5 of the house based on their outstanding motions in the
6 court --
7 THE COURT: Ma'am.
8 MS. GERBER: -- which preclude the sale of
9 this house.
10 THE COURT: Ma'am.
11 MS. GERBER: In order for Your Honor to
12 understand why this house cannot be sold.
13 THE COURT: Ma'am, we are here today as to
14 whether I approve the sale of this house. If there is any
15 motion on your behalf to stop the sale of the house, and if
16 I approve the sale of the house today, you can well
17 consider your motion refused. Now, what question do you
18 have for the witness relevant to this sale?
19 BY MS. GERBER:
20 Q Mr. Brown, in your inventory, I noticed that
21 you in determining the total -- let me ask a question, when
22
you determine the total assets, in order to make a
23 determination of whether a house needs to be sold, is the
24 reason you are selling this house because you need the
25 money from this house to continue to maintain Mrs. Gerber?
17
1 A The reasons include the fact that the house
2 is vacant and we are concerned about -- the reasons include
3 maintenance issues and the fact that it doesn't earn any
4 income and the fact that, frankly, it costs money.
5 Q Can you tell me what it costs each month to
6 maintain Mrs. Gerber's house?
7 MS. MENDELSOHN: Objection, Your Honor,
8 asked and answered. This was testified --
9 THE COURT: Pardon me.
10 MS. MENDELSOHN: This was testified to on
11 direct what the expenses were.
12 THE COURT: What is your question, Ms.
13 Gerber?
14 MS. GERBER: Just a moment, sir. I will be
15 right with you. I just have to calculate.
16 THE COURT: You must talk louder. I can't
17 hear you when you have your face down on the desk.
18 MS. GERBER: Your Honor, Mr. Brown testified
19 that it cost $8500.00 a year in taxes and expenses, divided
20 by 12, that comes out to $708.00 a month. I will concur
21 that the accounting --
22 THE COURT: Please, madam, I will entertain
23 arguments at the end. I would like to get the witness off
24 the stand. What question do you have for him?
25 BY MS. GERBER:
18
1 Q Can you tell me, sir, as a guardian, is it
2 not part of your responsibility to generate income?
3 A Yes.
4 Q From -- to generate income, producing
5 income?
6 A Yes. That is one of the reasons why we want
7 to sell the house.
8 Q Can you tell me why for the entire year of
9 2001, you did not rent this property?
10 A We do not want to rent a property in a
11 guardianship because we don't want to be landlords.
12 Q So, therefore, one can say that when I bring
13 up my witnesses, if it is fair to say -- I will bring my
14 witnesses to share --
15 THE COURT: Ma'am, what is your question for
16 this gentleman?
17 BY MS. GERBER:
18 Q If I can show you, Mr. Brown, that you could
19 have generated 900 to $1200.00 a month per the guardianship
20 rules in Pennsylvania Code, which would have generated
21 approximately $15,000.00 a year, can you share with me why
22 you did not do that?
23 A The other reason that -- the big reason is
24 because we were uncertain of whether Mrs. Gerber was going
25 to come back to the house or not.
19
1 Q Why were you uncertain?
2 A We were uncertain because we hadn't gotten a
3 final conclusive answer about that from the guardian of the
4 person.
5 Q And when did you get that conclusive answer?
6 A Over the summer, that is when we began to
7 move forward with the sale of the house.
8 Q What month in the summer did you get that
9 conclusive decision?
10 A I believe it was in July.
11 Q So from July until November, you forfeited
12 900 to $1200.007
13 THE COURT: They didn't rent the house,
14 ma'am. What is your next question?
15 BY MS. GERBER:
16 Q Just a moment, Your Honor. Can you explain
17 why George Clouser appraised this house in June of 2001,
18 and then for a fee to Mrs. Gerber's estate, then you had
19 him re-appraise it again, and that was submitted in the
20 annual report in April 20017 Can you explain to me why you
21 had two more appraisals done, for a total of three
22 appraisals, which were billed to Mrs. Gerber's estate?
23 A It is our procedure when we sell a house
24 that we get two appraisals. And we felt that we needed an
25 update from the first appraisal that Mr. Clouser prepared
20
1 for us.
2 Q On the 1st of October, did you not remove
3 all of Mrs. Gerber's property from her house?
4 MS. MENDELSOHN: Objection, Your Honor,
5 irrelevant.
6 THE COURT: Is the stuff in the house or
7 not?
8 THE WITNESS: It is not in the house.
9 THE COURT: It is vacant?
10 THE WITNESS: Yes.
11 THE COURT: Thank you, sir.
12 BY MS. GERBER:
13 Q Can you tell how much you are being charged
14 by Harrisburg Storage Company for the storage of Mrs.
15 Gerber's property?
16 THE COURT: Next question, ma'am.
17 BY MS. GERBER:
18 Q Is it approximately over $300.00 for the
19 monthly storage of Mrs. Gerber's property?
20 THE COURT: Next question, ma'am.
21 BY MS. GERBER:
22 Q Did Mrs. Gerber on the 1st of October inform
23 you that she wanted to buy the house, and that she was a
24 remainder beneficiary?
25 THE COURT: Mrs. Gerber being you.
21
MS. GERBER: Yes. I will have to say
2 Marilyn and Millie for the record cause there is a Miss
3 Gerber and a Mrs. Gerber. So if Your Honor does not
4 object, I will refer to my mother as Millie and myself as
5 Marilyn.
6 BY MS. GERBER:
7 Q Did Marilyn inform you on the 1st of October
8 that she was a remainder beneficiary and attempt to hand
9 you an offer for the house?
10 A You wrote in magic marker, from what I could
11 see, on a piece of wrapping paper that the movers had, and
12 alleged that you wanted to make a written offer for the
13 house, which I refused in front of the police chief.
14 Q Can you explain to us why you refused that
15 offer?
16 A You were told if you wanted to make a formal
17 offer, you could do it through the regular channels.
18 Q Is that a law in the State of Pennsylvania
19 under guardianship --
20 MS. MENDELSOHN: Objection.
21 THE COURT: Next question, ma'am.
22 BY MS. GERBER:
23 Q Was that your standard procedure for all,
24 anyone who is interested in purchasing the house?
25 A That they go through the appropriate
22
1 channels, yes.
2 Q Would you describe what the appropriate
3 channels are, please?
4 THE COURT: Well, ma'am, you want to be a
5 lawyer representing yourself, you look up the law. What is
6 your next question?
7 BY MS. GERBER:
8 Q Did you send -- did you send Marilyn Gerber
9 a letter informing her that soon there would be a For Sale
10 sign to go up in front of the property?
11 A Did I send Mildred Gerber a letter?
12 Q Marilyn Gerber.
13 A Yes.
14 Q And can you tell me what that letter said?
15 A It said that, that we were -- as I remember,
16
we were going to list the house for sale, and that if you
17 wanted to make an offer, you could do so through our
18 realtor.
19 Q And what else? Did you identify who the
20 realtor would be?
21 A No, but we told you there would be a sign on
22 the yard.
23 Q Did you tell her what date the sign would go
24 up?
25 A No.
23
1 Q Did you tell her how much the house would be
2 sold for?
3 A No.
4 Q And you had listed it as $150,000.00 on June
5 1 of 2001, under the inventory of Mrs. Millie Gerber, is
6 that correct?
7 A That was the value that Mr. Clouser assigned
8 at that time.
9 Q On April 25th, did Marilyn Gerber and her
10 attorney for the guardianship of person meet with you and
11 A.J. Mendelsohn and yourself in the offices of Rhoads and
12 Sinon?
13 A Yes.
14 Q And at that time, did Marilyn Gerber inform
15 you that she would be happy to pay for all the taxes and
16 utilities on her mother's home --
17 MS. MENDELSOHN: Objection.
18 BY MS. GERBER:
19 Q -- while it sat vacant?
20 MS. MENDELSOHN: Objection. Calls for the
21 witness to testify as to hearsay.
22 THE COURT: What is the purpose of that,
23 ma'am?
24 MS. GERBER: Your Honor, Mr. Brown was
25 present with Stan Laskowski, my attorney, myself and A. J.
24
Mendelsohn. During that meeting, they shared that they had
2 not discovered that the house was vacant for months. They
3 shared --
4 THE COURT: Ma'am, what is the purpose of --
5 MS. GERBER: And Ms. Gerber offered to Mr.
6 Brown, in front of A. J. Mendelsohn and Stan Laskowski,
7 that she would be happy as a remainder beneficiary to pay
8 for all the taxes and utilities on the home so there would
9 be no expenses incurred to Millie Gerber's estate.
10 THE COURT: You mean you are just going to
11 throw your money away.
12 MS. GERBER: No, sir. I was not going to
13 throw my money away. I am a remainder beneficiary. When
14 it is my turn I will provide you evidence that the house --
15 THE COURT: You are saying that that money
16 would come out of your share of the remainder beneficiary
17 without any consideration. I don't understand why --
18 MS. GERBER: No, I was going to pay it up
19 front to prevent any moneys being taken from my mother's
20 estate.
21 BY MS. GERBER:
22 Q Mr. Brown, are you aware that -- are you
23 aware that Marilyn's father, Colonel Fred E. Gerber, Sr.,
24 provided for that house to be sold to Marilyn Gerber in
25 January of 2000 -- in January of 19987
25
1 A I am not aware of that.
2 Q If you were made aware of --
3 THE COURT: He is not aware of it, ma'am.
4 What is your next question?
5 BY MS. GERBER:
6 Q I noticed that on the sale of the house that
7 the sign went -- can you tell me what date the sign went up
8 for the sale of the house?
9 THE COURT: Ma'am, I've had enough of that.
10 These questions have nothing to do with whether I am going
11 to approve this or not.
12 MS. GERBER: Sir, I made an offer on the
13 house on October 1st. Mr. Brown wrote a letter to me --
14 THE COURT: Ma'am --
15 MS. GERBER: -- saying when the sign went
16
up --
17 THE COURT: -- put your case forward when it
18 is your turn. What do you have for this man?
19 BY MS. GERBER:
20 Q Mr. Brown, on April 25, in a meeting with
21 Marilyn Gerber, Stan Laskowski, and A. J. Mendelsohn, did
22
you not say at that point in time that Millie Gerber had
23 enough funds and assets in trust to last her for ten years?
24 THE COURT: Ma'am, let me put it to you that
25 I think the law might be that if Mildred Gerber has two
26
1 million dollars in cash in the bank, that this bank may
2 still be entitled under the law to sell this house. Now,
3 would you please go on with your next question?
4 BY MS. GERBER:
5 Q Mr. Brown, are you involved in a case in
6 Cumberland County Orphans' Court of Webber, the Webber
7 family estate?
8 MS. MENDELSOHN: Objection, Your Honor.
9 THE COURT: Sustained. Next question.
10 BY MS. GERBER:
11 Q Mr. Brown, can you explain the glaring
12 difference between George Clouser's 159,000 and Mark
13 Heckman's $175,000.007
14 MS. MENDELSOHN: Objection, Your Honor.
15 THE COURT: Sustained. You can ask the
16 appraisers about their appraisal, ma'am.
17 BY MS. GERBER:
18 Q Mr. Brown, you made a comment in your
19 testimony to Ms. Mendelsohn that the Loshes appeared to be
20 able to buy the house. Whose responsibility is it to
21
approve the buyers' feasibility to purchase this house?
22 A It would be their responsibility.
23 Q So as a trust guardian, I assume that you
24 hired Jack Gaughen to be the realtors for you?
25 A Yes.
27
1 Q Did they work for you on a routine basis?
2 A Not routinely.
3 Q Does George Clouser work for you on a
4 frequent basis?
5 A He has done work for us in the past.
6 Q On a frequent basis or infrequent?
7 A Depends on how you define frequent. He has
8 done a fair amount of appraisals for us in the past.
9 Q So a fair amount would be more than average,
10 is that correct?
11 THE COURT: Do you know, sir?
12 THE WITNESS: He does -- he does a frequent
13 amount of appraisals for us.
14 MS. GERBER: Thank you.
15 BY MS. GERBER:
16 Q Does Mr. Heckman do a fair amount of
17 appraisals for you?
18 A Not to my knowledge does he do a lot. He
19 has done some in the past.
20 Q What was the motivation to secure Mr.
21 Heckman's appraisal as the third one when you just stated
22 you only did two normally?
23 A Well, Mr. Clouser was an update of -- I
24 couldn't use his first appraisal because it is over two
25 years had passed, over a year and a half had passed. So I
28
got a second'appraisal by using Mr. Heckman because he was
2
a second expert.
3 Q Can you give an explanation to the Court why
4
you did not accept Ms. Gerber's petition to buy the house
5 on October lst?
6 THE COURT: Did you receive some petition
7 from her?
8 THE WITNESS: No. It was on a piece of
9 moving -- a packing paper that she took from the moving
10 company. And with a magic marker, from what I remember,
11 she wrote something down and tried to give it to me as an
12 offer on the house. I refused it. I said you have to go
13 through the normal channels.
14 THE COURT: Is that the only thing you got
15 from her?
16 THE WITNESS: Yes.
17 BY MS. GERBER:
18 Q What would normal channels be, sir?
19 A As I said before, dealing with the realtor.
20 Q Isn't it customary when you are dealing with
21 family, when, when you are kind and gentle, to ask the
22 immediate beneficiary and remaining heirs if they have any
23 interest in the house?
24 THE COURT: Kind and gentle?
25 MS. GERBER: Yes, sir.
29
1 THE COURT: Ma'am, this is all a business.
2 BY MS. GERBER:
3 Q Is it not usual and customary to ask the
4 immediate heirs and remaining beneficiaries if they have
5 any interest in purchasing the house?
6 THE COURT: If you know. If you don't know,
7 say you don't know.
8 THE WITNESS: I don't know.
9 BY MS. GERBER:
10 Q Have you ever asked any other -- as a
11 guardian of the estate, have you ever asked any other
12 remaining children or beneficiaries or heirs if they wish
13 to purchase any property from an estate you managed or that
14 PNC advisers on the Carlisle Pike managed?
15 A Perhaps, but it is always on a case by case
16 basis.
17 Q Can you share why in this case you refused
18 Ms. Gerber's offer?
19 A Well, for one reason, there has been a
20 tremendous amount of acrimony in this case and we wanted to
21 play it straight by the rules.
22 Q So you decided to punish Ms. Gerber?
23 A No.
24 THE COURT: Do what?
25 MS. GERBER: Punish Mrs. Gerber.
3O
1 THE COURT: Ma'am --
2 BY MS. GERBER:
3 Q On October 1st, did Mrs. Gerber not then FAX
4 you a letter, again with an offer to buy the house, stating
5 that was her family home and she was a remaining
6 beneficiary and heir?
7 A I don't recall that specific letter.
8 Q Did she not again serve another letter to
9
you on October 17th stating her desire to purchase the
10 house?
11 THE COURT: Do you remember?
12 THE WITNESS: I don't remember.
13 MS. GERBER: I have a copy for you, Mr.
14 Brown.
15 BY MS. GERBER:
16 Q On November 4 -- is it on or about November
17 4th that the sign went up for the sale of the house?
18 MS. MENDELSOHN: Objection, Your Honor.
19 This has been asked before. Going into the same territory.
20 THE COURT: It has, ma'am.
21 BY MS. GERBER:
22 Q What date did this house sell, Mr. Brown?
23 A November 4th.
24 Q And the letter that you sent to Mrs. Gerber,
25 in that letter did you also threaten her that if she would
31
1 tear the sign down -- tear the sign down or take it away,
2 that you would prosecute her?
3 A We --
4 Q Would seek legal measure to prosecute her?
5 A The letter said that we would pursue legal
6 action.
7 Q Was there anything that Mrs. Gerber had ever
8 done to indicate, Marilyn Gerber, that she would do such a
9 thing?
10 THE COURT: Ma'am, ma'am.
11 THE WITNESS: Absolutely.
12 MS. GERBER: Thank you, Your Honor.
13 BY MS. GERBER:
14 Q Also in that letter, did you threaten Ms.
15 Gerber if she didn't proffer a fair -- and I don't know
16 what the legal term is -- righteous or appropriate offer
17 for the house, that you would also seek legal action
18 against her?
19 A Yes.
20 Q Earlier in September of 2002, of this year,
21 did you threaten to sue Ms. Gerber?
22 MS. MENDELSOHN: Objection, Your Honor.
23 This isn't relevant.
24 MS. GERBER: It goes to show that Mr. Brown
25 had no intention at any time whether I had a million
32
1 dollars to pay for the house or anything that he was not
2 going to sell it to me.
3 THE COURT: Ma'am, I have told you, I will
4 give you the opportunity to show in open court that you
5 have followed the proper procedures to try to buy this
6 house. And you are not doing it by the examination of this
7 witness right now.
8 MS. GERBER: Thank you, Your Honor.
9 BY MS. GERBER:
10 Q Mr. Brown, did you ever talk to the Loshes
11 at all?
12 THE COURT: The Loshes.
13 MS. GERBER: The buyers of this -- alleged
14 buyers of this property.
15 MS. MENDELSOHN: Objection, Your Honor,
16 calls for hearsay.
17 THE COURT: What is the relevance whether he
18 did or not, ma'am?
19 MS. GERBER: Because I want to know if he
20 informed them that there was an offer on the house made on
21 October 1st.
22 THE COURT: I still don't understand the
23 relevance. What is the next question?
24 BY MS. GERBER:
25 Q Mr. Brown, are you alleging that this house
33
1 needs to be sold in order to maintain the care and
2 maintenance of Mrs. Gerber, Millie Gerber?
3 MS. MENDELSOHN: Objection, asked and
4 answered.
5 THE COURT: Sustained. They are here to
6 sell the house, ma'am.
7 BY MS. GERBER:
8 Q Can you explain, Mr. Brown, again your
9 intention if the Loshes do not purchase this house or they
10 do not get to purchase this house, your recommendation is
11 to sell it at what price then?
12 THE COURT: What?
13 MS. GERBER: Ms. Mendelsohn opened this
14 morning, Your Honor, saying that she would sell it at the
15 lower value. She didn't state what value that would be.
16 THE COURT: Let's worry about that the next
17 petition I get. Let's handle this one today first.
18 BY MS. GERBER:
19 Q In the letter that you sent to Ms. Gerber
20 saying that this real estate sign was going to come up, was
21 it your expectation that every day, noon and night, Ms.
22 Gerber was going to walk by the property to see if the real
23 estate sign had gone up?
24 THE COURT: What is your next question,
25 ma'am? And you better start asking some relevant questions
34
1 or I am Hoing to have you sit down.
2 BY MS. GERBER:
3 Q Your Honor, excuse me. Mr. Brown, how did
4 you expect Ms. Gerber to become aware of the real estate
5 sign being put up?
6 THE COURT: Ma'am, please, your next
7 question.
8 MS. GERBER: I have no other questions at
9 this time. I reserve the riHht to recall --
10 THE COURT: Are you done?
11 MS. GERBER: I reserve the right to recall
12 this witness, sir.
13 THE COURT: Well, is that it?
14 MS. GERBER: Yes. That is it, Your Honor.
15 THE COURT: All right. You may step down,
16 sir.
17 MS. MENDELSOHN: Your Honor, petitioners
18 call Mark Clouser -- excuse me, George Clouser.
19 Whereupon,
20 GEORGE CLOUSER
21 having been duly sworn, testified as follows:
22 THE COURT: Your name and business address.
23 THE WITNESS: My name is George Clouser. My
24 business address is 718 North Front Street in Wormleysburg.
25 DIRECT EXAMINATION
35
1 BY MS. MENDELSOHN:
2 Q Good morning, Mr. Clouser.
3 A Good morning.
4 Q Mr. Clouser, what is it that you do for a
5 living?
6 A I appraise real estate.
7 Q How long have you been doing that, sir?
8 A I have been doing that since 1972.
9 Q What types of memberships and certifications
10 do you have in your profession, sir?
11 A I have the general appraiser classification
12 for the State of Pennsylvania. I have an SRA designation
13 through the Appraisal Institute.
14 MS. MENDELSOHN: Your Honor, petitioners
15 move that Mr. Clouser be qualified as an expert in
16 residential real estate appraisals pursuant to Pennsylvania
17 Rule 702.
18 THE COURT: Any questions on his
19 qualifications, Mr. Rupp?
20 MR. RUPP: No, Your Honor.
21 THE COURT: Ms. Gerber.
22 MS. GERBER: No.
23 BY MS. MENDELSOHN:
24 Q Mr. Clouser, did you appraise the property
25 located at 623 Hill Top Drive in New Cumberland?
36
1 A I did.
2 Q What did you do in formulating that
3 appraisal?
4 A In formulating the appraisal, we made a
5 pretty thorough inspection of the inside and the outside of
6 the property. I have appraised it several times over the
7 last number of years. And we measured the home physically.
8 And we took notes sufficient to fill out a UPPER form, which
9 is typically used for residential appraisal. It is
10 normally the form that most bankers and lenders and
11 realtors are accustomed to seeing.
12 Q And who asked you to perform this appraisal,
13 Mr. Clouser?
14 A Most recent was Mr. Brown.
15 Q And, sir, what was the valuation that you
16 came up with in your appraisal?
17 A The value that I came up on October 29 of
18 2002, was $159,000.00.
19 Q And was there another appraisal performed,
20 sir?
21 A Yes, there was. I had valued the property
22 prior to that, on April the 6th of 2001.
23 Q Did you go through the same process that you
24 just told us about?
25 A Same process, yes.
37
1 Q And what was the valuation of the property
2 at that tame?
3 A The value at that time was $156,000.00.
4 MS. MENDELSOHN: Your Honor, may I approach
5 the witness?
6 THE COURT: Yes.
7 (Whereupon,
8 Petitioner's Exhibit No. B
9 was marked for identification.)
10 BY MS. MENDELSOHN:
11 Q Mr. Clouser, I handed you what is marked as
12 Petitioners Exhibit B. Would you identify that document,
13 please?
14 THE COURT: Number what?
15 MS. MENDELSOHN: Letter B.
16 THE WITNESS: Letter B appears to be the
17 appraisal I performed on October 29.
18 BY MS. MENDELSOHN:
19 Q Would you just take a look through that,
20 sir, and make sure it is a true and correct copy of that
21 appraisal that you performed?
22 A Yes, it is.
23 Q And does that appraisal state the valuation
24 of $159,000.00 for the real estate?
25 A It does.
38
1 MS. MENDELSOHN: Thank you. Your Honor, I
2 have no further questions for Mr. Clouser.
3 THE COURT: Mr. Rupp?
4 MR. RUPP: No cross. Only that I would
5 accept Mr. Clouser as an expert witness in this matter.
6 THE COURT: We already did that. Mrs.
7 Gerber.
8 CROSS-EXAMINATION
9 BY MS. GERBER:
10 Q Good morning, Mr. Clouser.
11 A Good morning.
12 Q Can you tell me, you said that you had
13 appraised it many times. Was that more than twice, sir?
14 A Well, I believe that I said I had appraised
15 it several times. And, yes, that was more than twice.
16 Q Can you tell me the other times you
17 appraised it more than twice?
18 A Yes. The other time I appraised it was in
19 1998, the date was February 22 of '98.
20 Q You appraised this house on February 22 of
21 19987
22 A Yes.
23 Q Who asked you to appraise that house?
24 A I had been requested by Mr. Rupp at that
25 time.
39
1 Q Under what -- under what auspices -- what
2 Mr. Rupp? Are we talking Herbert Rupp or Mr. Richard Rupp,
3 sir?
4 THE COURT: Ma'am --
5 THE WITNESS: Mr. Richard Rupp.
6 THE COURT: Ma'am, who cares? The man is an
7 appraiser.
8 BY MS. GERBER:
9 Q When was the next time you appraised this
10 home, please?
11 A The next time I appraised the home was on
12 April 6 of 2001.
13 Q And the next date after that, sir?
14 A The next time was October 29 of 2002.
15 Q Do you have each one of those appraisals
16 available for me to examine today?
17 A I do.
18 Q Would you be willing to offer me a copy so I
19 could peruse them, please?
20 A If counsel have no objection.
21 MS. MENDELSOHN: Objection, Your Honor.
22 This is a highly unusual procedure and --
23 THE COURT: What is your point, ma'am?
24 MS. GERBER: I would like to see the value
25 and the integrity of the appraisals, please.
40
THE COURT: Well, you have a copy of the
2 October one, don't you?
3 MS. GERBER: I have just been given the
4 October one. I have not seen February 22 or April 6.
5 Since he has been proffered to you as an expert, I would
6 like to examine his --
7 THE COURT: Well, April's was 156. What was
8 your appraisal from '98, sir?
9 THE WITNESS: The '98 value, sir, was, Your
10 Honor, was $138,000.00.
I1 THE COURT: All right. What is next, Ms.
12 Gerber?
13 MS. GERBER: I would like to see -- are you
14 denying, are you denying me the copies? I didn't
15 understand what your ruling was.
16 THE COURT: They are just not important
17 anymore. From '98, that is four years ago, ma'am.
18 MS. GERBER: Mr. Clouser has been offered to
19 the Court as an expert.
20 THE COURT: Yes, he is. You can ask him
21 about his latest report, October 2000.
22 BY MS. GERBER:
23 Q Mr. Clouser, did Mr. -- who asked you to do
24 this appraisal, this October 29th?
25 MS. MENDELSOHN: Objection, Your Honor.
41
1 Asked and answered.
2 THE COURT: I think the bank did. Didn't
3 they?
4 THE WITNESS: Yes. Mr. Brown from the bank.
5 BY MS. GERBER:
6 Q Was it Mr. Brown?
7 A Yes.
8 Q Did Mr. Brown give you any instructions as
9 to what he was looking for?
10 A He did not give me any indication except
11 that he wanted an updated report.
12 Q I notice that you did the appraisal after
13 Mr. Heckman's appraisal, which is October 12. Did you have
14 an opportunity to look at Mr. Heckman's appraisal?
15 A I did not know Mr. Heckman did an appraisal.
16 I have never seen Mr. Heckman's appraisal. I have no
17 knowledge of Mr. Heckman's appraisal.
18 Q In going through the house, Mr. Clouser,
19 can you tell me what process you go through in appraising
20 the house?
21 MS. MENDELSOHN: Objection, asked and
22 answered.
23 THE COURT: Well --
24 MS. GERBER: I am not an expert appraiser,
25 sir. I would like to know what he goes through.
42
THE COURT: Ail right. Generally tell her.
2 THE WITNESS: Generally, we will do a
3 thorough physical inspection of the property. We will
4 measure the property. We will get details on the interior
5 and exterior of the property.
6 Then we will do -- typically the most
7 relevant approach to value would be the market approach
8 where we would find sales of homes in the general area or
9 immediate area that are reasonably similar to the property
10 we are appraising, make adjustments for differences, and
11 come up with our value range and final value, opinion of
12 value.
13 BY MS. GERBER:
14 Q I need a moment to look at your appraisal.
15 Could I -- excuse me, I need to look through it, Your
16 Honor. Could I borrow a copy?
17 MS. MENDELSOHN: I just gave you one.
18 MS. GERBER: I gave it to my witness. Could
19 I just borrow a copy? I will give it back to you.
20 MS. MENDELSOHN: I don't believe I have
21 another one. It is attached to the petition.
22 MR. RUPP: Here is one.
23 MS. GERBER: Mr. Heckman's is attached to
24 the petition.
25 MS. MENDELSOHN: Oh, that's true.
43
1 BY MS. GERBER:
2 Q When you went through the house, Mr.
3 Clouser, was there anybody with you at the time?
4 A No, there was not.
5 Q Okay. And what did -- what condition did
6 you find the house to be in?
7 A I just found it in average condition. It
8 needed quite a bit of paint. It needed some redone. The
9 lower level family room needed completely redone, or rec
10 room in the basement. And it was vacant. It was showed
11 pretty cold, as typically a vacant house would do.
12 Q Did you examine the windows in the house,
13 sir?
14 A I generally looked at them.
15 Q How did you find the windows, in what
16 condition?
17 A Just in average condition.
18 Q Did you happen to notice that the windows
19 were unfinished, the majority of them?
20 A I did not.
21 Q Did you happen to notice that these had
22 been, new windows had been put in the home in about the
23 last four years?
24 A I don't recall that, no.
25 Q So you didn't notice that the windows were
44
1 not finished by the contractor when he installed the
2 double-paned windows?
3 A What do you mean by not finished?
4 Q The trim, the wood around was not finished,
5 it was left unpainted.
6 A Well, that to me is not unfinished. It
7 looked like a natural stain to me.
8 Q Are you willing to swear to that, sir?
9 A No, I am not.
10 Q Thank you. Did you notice that the windows
11 leaked and the air flew through them?
12 A I had no knowledge of that.
13 Q Did you go up to any of the windows and
14 examine them for tightness and security for value of the
15 window, the window replacements?
16 A No, I did not.
17 Q Now, were the new windows part of what you
18 used to appraise the value of the house?
19 A We didn't -- we took the home in its as is
20 condition on the date that we were there.
21 Q Did that include looking at the windows,
22 whether they were new or old?
23 A Yes, general condition of the property.
24 Q So you would notice that the windows had
25 been newly placed in the home in the recent, recent
45
1 present?
2 A I saw that there were windows, that they
3 appeared to be adequate, and I didn't make any difference
4 as to whether they were new or the original.
5 Q So you didn't make a distinction whether
6 they were all replaced or whether they were old ones?
7 A Windows are a replacement feature. They
8 don't add a whole lot of value.
9 Q How much does a patio window cost, sir?
10 A I have no idea.
11 Q How much do the sliding, the large patio
12 doors, do you know what the value of those are?
13 MS. MENDELSOHN: Objection, irrelevant.
14 THE COURT: Do you know?
15 THE WITNESS: I have a general idea, sir.
16 BY MS. GERBER:
17 Q Could you tell me, sir?
18 A Between a thousand and three thousand
19 dollars, depending on the type that you get.
20 Q And did you count the number of windows in
21 the home, sir?
22 A No, I did not.
23 Q Could you make a guesstimate how many
24 windows there were?
25 A No, I wouldn't know.
46
1 Q If I were to tell that you all the windows
2 have been replaced in 1998, would that increase the value
3 and affect the value of the home?
4 A It would have been --
5 MS. MENDELSOHN: Objection.
6 A -- included in my value.
7 BY MS. GERBER:
8 Q If I told you that there were approximately
9 twelve windows in the home, would you tell me -- brand new
10 windows put in in 1998 -- what value would that be?
11 THE COURT: Ma'am, he looked at the house
12 and gave us his expert valuation on the date that he looked
13 at it.
14 MS. GERBER: I have some questions about his
15 expertness, sir, in looking at a home.
16 THE COURT: You agreed that he is a
17 qualified expert, ma'am.
18 MS. GERBER: Actually I don't --
19 THE COURT: You did already.
20 MS. GERBER: Oh, I see what you are saying,
21 yes. But I am questioning his expert -- can I redact that
22 at this point, sir?
23 THE COURT: You ask him about the house.
24 MS. GERBER: I would like to redact --
25 THE COURT: Get to the point.
47
1 MS. GERBER: I would like to redact my
2 statement that he is an expert appraiser.
3 THE COURT: No, thank you, ma'am.
4 MS. GERBER: Okay.
5 BY MS. GERBER:
6 Q Would you go to -- would you go to the page
7 where it is the other home, sir?
8 A Okay.
9 Q Each time you did the appraisal, did you use
10 the exact homes as comparison in your columns on the
11 appraisal list?
12 A I don't understand what you mean by exact
13 homes.
14 Q You did an appraisal on February 22, 1998.
15 That was the death of my father. On April 6, the day he
16 died, on April 6, 2001, you did a second appraisal; on
17 October 29 of 2002, you did a third appraisal. Each time
18 you did the appraisals, only looking at October 29, you
19 have not offered me yet April 6 and February 22, did you
20 use the same homes, exact same homes as --
21 A No, we would never do that. You would use
22 the closest and the most current comparables that you can
23 use.
24 Q Is that a regulation established in
25 Pennsylvania for appraisals, appraisers?
48
A Are there regulations? Certainly. We are
2 governed by the State Board of Certified Appraisers. But
3 specific regulations as far as what you can use or what you
4 can't use, I would say no.
5 Q Why would you use three different homes each
6 time you did the appraisal then?
7 A Because it reflects the current market
8 situation. House values typically aren't any good after
9 six months or a year because of the changing market.
10 Q Are you aware -- are you aware of the
11 property of the homes up in Drexel Hills?
12 A Yes.
13 Q Are you aware that there are homes identical
14 to Millie Gerber's house throughout the Drexel Hills
15 development?
16 A There may be.
17 Q May be, or are you aware of that?
18 A There may be. I can't tell you specifically
19 that there is.
20 Q In all, Mr. Clouser, I will ask the
21 question, in all the years you did appraisals up in Drexel
22 Hills, which is an affluent community, you have never
23 noticed there is more than one house identical to Millie
24 Gerber's house?
25 A Well, I have noticed that the contractors
49
are reasonably the same because I was around at the time
2 that they were built. And usually contractors will
3 generally build the same floor plan and not vary too much.
4 Those kind of things.
5 Q I don't believe you have answered my
6 question. Are you aware that there are homes identical to
7 Millie Gerber's house?
8 A I am not aware that there are homes
9 identical to Millie Gerber's home being five bedrooms and
10 two and a half bathrooms.
11 Q Did you overlook that four doors down and
12 also four doors down to the right and left there are two
13 homes identical layout and make up to Millie Gerber's home?
14 A If they were transferred or not transferred
15 -- it had nothing to do with my appraisal if they had not
16 been transferred.
17 Q Can you explain how you choose the homes
18 that you use for comparison?
19 A Yes, I can. They were all, first of all, in
20 the same school district. Secondly, they were reasonably
21 similar as far as the size is concerned. And the first one
22 was right on Hill Top Drive, which is just a block away
23 from the home. Second one was on Park Avenue, just a block
24 north down the street. And the third one was on Parkview,
25 also in the Drexel Hills development. Each of those sales
50
were all in the same neighborhood.
2 Q Mr. Clouser, are you stating that the three
3 appraisals, there were three different homes which would be
4 a total of nine different pictures show up in the total of
5 three appraisals you did?
6 A No, I am not saying that at all. You are
7 saying that.
8 Q Did you use similar -- if I am not -- if I
9 didn't -- I thought I understood you to say that in each
10 appraisal you used three different homes comparison for
11 each appraisal?
12 A I did not say that.
13 Q Would you please tell me what you did mean
14 to say?
15 A Well, I meant to say that we used different
16 sales. I did not necessarily just use three in the report.
17 My second report I used at least six.
18 Q Could I see that report, please?
19 A That is up to Ms. Mendelsohn.
20 Q Actually I think it is up the Judge.
21 MS. MENDELSOHN: Objection. This is very
22 irrelevant procedure. This second appraisal is not even
23 relevant at this point.
24 THE COURT: The April appraisal
25 BY MS. GERBER:
51
1 Q You used six homes on one of your
2 appraisals. What date did you use six homes?
3 A The April appraisal.
4 Q On April 6th you had six different homes?
5 THE COURT: Ma'am --
6 A Yes.
7 THE COURT: Ma'am --
8 BY MS. GERBER:
9 Q Mr. Clouser, you stated that there was a
10 house similar on Hill Top Drive, 702, correct?
11 THE COURT: In your October appraisal.
12 A Yes. That is the first sale that we used,
13 ma'am.
14 BY MS. GERBER:
15 Q Are you aware at the other end of Hill Top
16 Drive there's a home identical to Mrs. Gerber's which also
17 has not been touched inside for 34 years?
18 THE COURT: Well --
19 A It had no relevance to me, ma'am.
20 THE COURT: Was it sold?
21 MS. GERBER: No, it was not, sir.
22 THE COURT: Well, it is not sold, ma'am,
23 there is no way to establish a price for it current. That
24 is what you are not getting through your head.
25 MS. GERBER: Thank you, Your Honor.
52
1 THE COURT: Don't thank me for rulings that
2 I make. Don't. Counsel should not thank the judge.
3 MS. GERBER: Your Honor, you are aware that
4 I am pro se. I don't have all of the acumen and skills --
5 THE COURT: What is your next question,
6 madam?
7 BY MS. GERBER:
8 Q On number 105 Parkview Road --
9 THE COURT: What is your next question?
10 BY MS. GERBER:
11 Q Mr. Clouser, on 105 Parkview Road, can you
12 tell me how this house is similar to 623 Hill Top Drive?
13 A Yes, I can. It is written there in the
14 description. It is a little bit larger than Hill Top
15 Drive. But it's a two-story dwelling. It is in the same
16 school district. It had a two car garage. It had two and
17 a half baths. It had eight rooms and had a finished
18 basement with a full bathroom and a family room in it. It
19 is similar as to style, similar as to location. It is
20 similar as to school district. Similar in many ways.
21 Q Is it not accurate that 105 has 2,265 square
22 feet whereas 606 has only 1,944 square feet? The houses
23 look considerably different in length.
24 A You are comparing two comparables. You have
25 not compared anything at all to Mrs. Gerber's home.
53
1 Q Any of these homes, sir, do they have patios
2 or additions or covered patios behind them?
3 A We included that. We included what we
4 thought were any differences between the Gerber residence
5 and the comparable sales.
6 Q But some of these homes did have enclosed
7 patios behind them, did they not? Is that a yes?
8 A It is listed here, it did.
9 Q Which one was that?
10 A You will see down where the adjustments are
11 for the porch and the patio, either we made adjustments
12 there or we did not for the covered porches and decks that
13 some of the comparables had, yes.
14 Q Did Mrs. Gerber have any additions to her
15 house, Millie Gerber?
16 A Not to my knowledge.
17 Q You don't remember?
18 A Not -- what do you mean by additions?
19 Q When I think of additions I think of
20 structures. Were there any additional structures to the
21 house, sir?
22 A Besides the house and garage, there was a
23 porch and a patio.
24 Q Was the porch covered?
25 A Not -- well, the porch is covered.
54
1 Q The back patio, sir?
2 A The patio is not.
3 Q Was it enclosed?
4 A Not to my knowledge, no.
5 Q Did any of these homes have enclosed patios
6 that had been made into summer or all weather rooms?
7 A We reflected this on our adjustments whether
8 they did or did not.
9 Q Which ones did, sir?
10 A If you look at them, the first one, Mrs.
11 Gerber's had the porch and the patio. We felt that the
12 screen porch on 702 Hill Top was not of any consequence so
13 we didn't make any adjustment for that.
14 On the second sale, we made adjustments for
15 the covered porch and the deck because they were larger.
16 On the third sale, we made an adjustment
17 there for the covered porch and the covered patio that were
18 larger and better shaped than what they were at the Gerber
19 home.
20 Q If a home has not been touched for 34 years,
21 or sold, does it have the same appraised value as homes
22 that have been gutted, sold and resold several times and
23 had covered patios put on them?
24 THE COURT: Ms. Gerber, I do not have an
25 infinite amount of patience, and you are getting close to
55
1 my limit, madam. What is your next relevant question?
2 MS. GERBER: Your Honor, I would like to see
3 the other two appraisals, please.
4 THE COURT: Ma'am, they haven't been
5 offered. I don't care about them. They are ancient
6 history. Do you have another question?
7 MS. GERBER: Not at this time.
8 MS. MENDELSOHN: I have no further
9 questions, Your Honor.
10 THE COURT: You may step down, sir.
11 Who is next?
12 MS. GERBER: We have Mark Heckman, the
13 second appraiser, next, Your Honor. Would you like to hear
14 his testimony?
15 THE COURT: We have been in session an hour.
16 Let's just take a few minutes for a recess.
17 (Whereupon, a recess was taken.)
18 THE COURT: Witness.
19 MS. MENDELSOHN: Your Honor, petitioners
20 call Mark Heckman.
21 Whereupon,
22 MARK HECKMAN
23 having been duly sworn, testified as follows:
24 THE COURT: Your name and business address,
25 sir.
56
1 THE WITNESS: My name is Mark Heckman. I am
2 at Mark Heckman Real Estate Appraisers, 1309 Bridge Street,
3 New Cumberland, Pennsylvania.
4 DIRECT EXAMINATION
5 BY MS. MENDELSOHN:
6 Q Good morning, Mr. Heckman.
7 A Good morning.
8 Q We are still in morning, I believe. I would
9 like to ask you a couple of questions about the appraisal
10 you performed on the house at 623 Hill Top Drive. First of
11 all, sir, who asked you to perform that appraisal?
12 A The appraisal request was from Mr. Brown at
13 PNC Bank.
14 Q Okay. Now, when you got that telephone call
15 from him, can you --
16 THE COURT: Well, let's tell us a little bit
17 about your experience and qualifications, sir.
18 MS. MENDELSOHN: That is right.
19 THE WITNESS: I also have a certification
20 from the Commonwealth of Pennsylvania. I am a general
21 certified appraiser. I have been appraising full-time for
22 about seventeen years. I also have a real estate broker's
23 license.
24 Affiliations are with the, I'm an associate
25 member of the Appraisal Institute. I have a relocation
57
1 certified -- relocation appraiser's certification, member
2 of the local association of realtors here in Harrisburg and
3 York markets. And that is pretty much it.
4 BY MS. MENDELSOHN:
5 Q Did you say you have been appraising real
6 estate for seventeen years?
7 A Correct.
8 Q And residential real estate?
9 A Both residential and commercial.
10 Q Now, after you were asked to --
11 MS. MENDELSOHN: Actually, pardon me, Your
12 Honor, I would move at this point that Mr. Heckman be
13 qualified as an expert in residential real estate
14 appraisals.
15 THE COURT: Any questions on his
16 qualifications, Mr. Rupp?
17 MR. RUPP: No, Your Honor.
18 THE COURT: Ms. Gerber.
19 MS. GERBER: No, Your Honor.
20 BY MS. MENDELSOHN:
21 Q As for the appraisal that you did at 623
22 Hill Top Drive, sir, can you tell me what you did in order
23 to prepare that appraisal?
24 A Yes. The entire process I went through was
25 less -- lasted about six hours. I did a thorough
58
inspection of the property, interior and exterior, measured
2 the property. Took detailed notes on the features and
3 amenities contained in the property.
4 I then did a search of the market area
5 looking for comparable sales. Of course, a sales
6 comparison analysis is the only accurate way for
7 establishing value on residential property. So I did a
8 search in the New Cumberland area looking at two-story
9 residential dwellings in a price range from a low of
10 $150,000, all the way up to $300,000.00. And I selected
11 three properties that were within two blocks of the
12 subject, all in the same Drexel Hill development.
13 Q What was the appraised value you came up
14 with after going through this process?
15 A My appraised value was $175,000.00.
16 MS. MENDELSOHN: Your Honor, may I approach
17 the witness?
18 THE COURT: Yes, ma'am.
19 (Whereupon,
20 Petitioner's Exhibit No. C
21 was marked for identification.)
22 BY MS. MENDELSOHN:
23 Q Mr. Heckman, I handed you what has been
24 marked as Petitioner's Exhibit C. Do you recognize that
25 document, sir?
59
1 A Yes. This is a copy of the appraisal report
2 I prepared.
3 Q And would you just take a quick look through
4 it and tell me whether that is a true and correct copy of
5 that appraisal report?
6 A This is a true and correct copy.
7 Q And does that report state the valuation of
8 $179,000.00 that you came up with for the property?
9 A It does.
10 MS. MENDELSOHN: Thank you. Your Honor, I
11 don't have anymore questions at this time for Mr. Heckman.
12 THE COURT: Mr. Rupp.
13 MR. RUPP: No, Your Honor.
14 THE COURT: Ms. Gerber.
15 MS. GERBER: Yes, sir.
16 CROSS-EXAMINATION
17 BY MS. GERBER:
18 Q Yes, Mr. Heckman, where it says uniform
19 residential appraisal report --
20 A Yes.
21 Q -- the block that is estimated site value,
22 why is that enite block blank?
23 A Because on a structure of age like the
24 subject, what we call the cost approach is not a relevant
25 method of estimating market value. We typically only have
60
1 confidence in the cost approach to value when the structure
2 is new or perhaps within five years of age in residential
3 real estate.
4 Q So knowing that this property was over 34
5 years, you wouldn't have used this approach, is that what
6 you are saying?
7 A That is correct.
8 Q Okay. Would you not make an adjustment to
9 the design and appeal and the quality of the fabrication
10 and the structure itself in your appraisal?
11 A Sometimes I do it by -- I think there is a
12 substantial difference between my subject and my comparable
13 sales.
14 Q Okay. And what was your opinion of the home
15 when you went in it?
16 A I thought basically it was of average
17 quality construction and basically in average condition.
18 Although I was aware it had a couple features that were
19 above grade. I did observe the replacement windows, double
20 insulated windows throughout. And I thought the kitchen
21 was in pretty good condition.
22 Q And how did you know that there had been
23 replacement windows? Were you told prior to this or you
24 knew that when you saw it?
25 A I knew it when I saw it.
61
1 Q What value did you add to the replacement
2 windows approximately? What would you have put on that?
3 A I don't -- I did not make a separate
4 adjustment for the windows. I would tend to agree with Mr.
5 Clouser, all windows are an expensive item to install, they
6 don't add a significant amount that a typical buyer would
7 pay for. So I factored in the windows with the overall
8 condition of the house, which I said in my report is better
9 than average.
10 Q And the kitchen, did it have a value on it
11 for you?
12 A Yeah. The kitchen, if you notice in my
13 sales comparison grid, I adjusted for separately on the
14 very last line. The first comparable I had an enclosed
15 porch, so I said that was equivalent to an upgraded
16 kitchen. My comparable number two had an excellent
17 kitchen, which was even substantially better than the
18 subject's. So I made a negative adjustment for that. And
19 for my third comparable, I learned that comparable three
20 was only an average condition, so I added $4,000.00 to the
21 value of it.
22 Q Had you actually been in the three homes
23 that you used as comparisons?
24 A No. It is very rare that an appraiser will
25 view the interior of any of our comparable sales. What we
62
rely upon is information from our local multi-list and
2 possibly from interviews with the real estate agents that
3 were involved in the transactions.
4 Q Did you walk around the home, the homes and
5 look about covered patios or see in the windows if they
6 were large, just kind of quality homes?
7 A I drove by the comparable sales and viewed
8 them from the front. Any information about the rear I
9 would have gotten through the multi-list description or
10 possibly through an interview with an agent.
11 Q So if some of the homes -- if I were to
12 testify later that some of the homes that I had looked in
13 actually the windows and seen them close up, they had been
14 gutted, they had been -- the interior design had been
15 elevated --
16 THE COURT: Are you referring to one of the
17 comparables that he used?
18 MS. GERBER: Yes.
19 BY MS. GERBER:
20 Q -- there were enclosed patios of a
21 significant size, would that not alter that property as a
22 comparison for a --
23 A I would rely on information I have available
24 to me which I think is accurate and truthful.
25 Q Let me -- I am not an appraiser, sir. When
63
1 you get right down to it, if you would open the door of
2 these three comparison homes to my mother's house, Millie
3 Gerber, and the other three had been gutted and
4 substantially added on to, remodeled and home improved,
5 could they actually be used as fair comparison homes to
6 623, which had no work on it for 34 years?
7 A You are suggesting that the three comparable
8 sales were in significantly better condition.
9 Q Yes, sir.
10 A If I believed that, I would not have used
11 those as comparable sales. But, no, my information was not
12 that of effect. On comparable one I learned that this
13 property was in slightly better condition than the subject,
14 and comparable number two was even in better condition that
15 comparable one. And I did make adjustment for those
16 differences.
17 Q Are you aware that there are homes identical
18 to my mother's property? My mother being Millie Gerber.
19 For the record, I refer to my mother as mother or Millie.
20 There is only one mother and one Millie. Are you aware
21 there is identical homes to my mother's home within Drexel
22 Hills development?
23 A I have never seen real estate that is
24 identical to other real estate. There are similar and they
25 may be similar in size and condition, but I -- it would be
64
amazing to me if I saw another home that was identical.
2 Q If I were to tell you that there are within
3 four blocks, four houses, four to five houses to the right
4 and left, there are actually identical houses, same
5 structure, same window, same kitchen, everything --
6 THE COURT: Are you suggesting that one of
7 these houses you are referring to was recently sold at the
8 time this man did his appraisal?
9 MS. GERBER: One or two of them --
10 BY MS. GERBER:
11 Q I have to ask, what amount of years do you
12 use for recently sold, sir? Within what amount of time
13 frame do you have to use for recently sold?
14 A We can use our judgement on that issue.
15 What I did is I looked at every sale in that neighborhood
16 from January 1 of the year 2000 on. So I had close to
17 three years of information and data that I considered.
18 The March recent sale is the better. But if
19 you don't have properties that are similar enough in size
20 and design and so forth and condition, then it would be
21 appropriate to go back a little further in time. That is
22 what I did. And then I added an appreciation to each of my
23 comparable sales to reflect an appreciation that has been
24 realized in the market in the last year or two.
25 Q Do you know that in your time adjustment, it
65
was slightly heavy, 86 point 89 percent -- or maybe it is
2 not percent -- used to compare to my mother's home and the
3 comparison in the comparison?
4 A I can describe the appreciation that I gave
5 to each comparable sale. The first comparable sale
6 occurred approximately a year before I appraised the
7 subject's, so I added three percent, which is $5400.00.
8 The second sale I added five percent. That sale occurred
9 in August of 2001. So that was $9900.00. And the third
10 sale settled on January 15, 2002. And I added three
11 percent, or $5,000.00, to reflect the appreciation in the
12 market.
13 Q How do you explain of the three comparable
14 houses, they all had four bedrooms and not five? Did they
15 average out to be the same square footage plus or minus?
16 A Each of the comparable sales were four
17 bedroom houses. And I would have used five bedroom houses
18 if I could have found some that had sold in that
19 neighborhood. But there were none. So it's a little
20 unusual that each of the comparable sales is larger than
21 the subject house, yet the subject has five bedrooms and
22 they only have four. So what we are looking at is the
23 subject house having somewhat smaller rooms than the
24 comparable sales.
25 Q So it is possible that the newer homes that
were sold, they may have not knocked a wall out and it is
2 four bedrooms instead of five?
3 A That is possible. But it is more likely
4 that they were originally constructed with four bedrooms.
5 It is unusual to find a five bedroom house. Actually a
6 five bedroom house is attractive in the market. There
7 isn't that many of them and some families do need five
8 bedrooms. I have added $4,000.00 across the board
9 reflecting the subject's five bedrooms as compared to four.
10 Q Four to five houses on the right of 623 Hill
11 Top Drive, there are two identical homes to my mother's
12 with five bedrooms.
13 A Is that right?
14 Q Yes, sir. I would like to go back, three
15 years ago, directly across the street from my mother's
16 home, there was a house that was up for sale for
17 $180,000.00. Actually probably goes back five years, this
18 house --
19 THE COURT: Five years ago.
20 MS. GERBER: Five to six years ago, this
21 home, not identical, but not far from my parents home --
22 THE COURT: Ma'am --
23 MS. GERBER: -- was $180,000.00. Yes, Your
24 Honor.
25 THE· COURT: Do you have a question for him?
67
1 MS. GERBER: Yes, I do. It is couched in
2 the form of a paragraph question, sir.
3 BY MS. GERBER:
4 Q It sat on the market for two years. The
5 house had been totally gutted and redone by a wealthy
6 couple as a secondary home, and it finally sold three years
7 ago for $165,000.00, totally gutted, redone.
8 Can you explain the disparity between
9 165,000, a home across the street, totally gutted, redone,
10 and finished basement, you know, family, whole nine yards,
11 to my mother's home, which I am sure you can appreciate has
12 not been touched in 34 years, plus or minus, some
13 semi-mediocre replacement windows put in that leak, you
14 know?
15 And I actually have the total price and the
16 accounting for what it cost, I think it was under
17 $8,000.00, including the siding and all that on the house,
18 the insulation. Can you explain the disparity between that
19 house and how you arrived at -- what was it you arrived at?
20 A 175.
21 Q 175.
22 A I can't on that particular house. But what
23 I could say is we never, say, rest our case or establish
24 value on the basis of just one comparable sale. In my
25 initial search I looked at nineteen properties and I
68
actually read the descriptions, a lot of information on
2 each of those properties until I filtered my comparable
3 sales selection down to the three properties that were just
4 the most -- that were the most similar I could possibly
5 find. And those were the ones I used for in depth
6 comparison with the subject.
7 So when I went through this process, I found
8 some properties that had sold recently that were inferior
9 to the subject and I did not use those. And I found others
10 that were obviously superior and I did not use those. So I
11 did look at a good number of properties that were better
12 and worse than your parents place.
13 Q You stated were a real estate broker as
14 well, sir.
15 A Yes.
16 Q Does that mean you also go and look at homes
17 when they come up for sale up in Drexel Hills?
18 A I am not active in marketing real estate. I
19 have had a broker's license for eighteen years and I
20 maintained it, but I do not buy and sell real estate.
21 Q Did you know -- have you ever done any other
22 appraisals on this home prior to this one, October 127
23 A No, I have not.
24 Q And did you know -- have you worked -- how
25 often have you worked for PNC advisers?
69
1 A For Mr. Brown's department, I think this was
2 only the second assignment I performed.
3 Q Did you happen to know my mother and father,
4 Mr. Heckman?
5 A No.
6 Q Okay. One question then, so the disparity
7 between the home that went for 165, originally 180 three
8 years ago, and this condition my mother's home is in, is
9 that because three years later the market is elevated or
10 interest rates are low? What reflects this enormous price
11 of 175 for this house?
12 THE COURT: Do you understand her question?
13 I am not sure I do.
14 THE WITNESS: No.
15 THE COURT: At one point you talked about a
16 house across the street that was sold three years ago, and
17 another time I think you said it might have been sold five
18 years ago.
19 MS. GERBER: It sat for two years, sir, at
20 180,000, when the gentleman passed away, and nobody bought
21 it because it was inflated. I --
22 THE COURT: Can you tighten your question up
23 for the man?
24 MS. GERBER: Yes, sir.
25 BY MS. GERBER:
70
1 Q Is there a reason why a house such as my
2 mother's, which has not been touched, the windows leak, the
3 kitchen only has re-facing and, you know, the linoleum and
4 micro-facing on the counters, there is no enclosure -- you
5 saw the house.
6 A Yes.
7 Q Can you tell me how that house could be
8 today $175,000.00, when three years ago a house that was
9 totally gutted, larger than my mother's house, went for
10 only 1657 Is it three years of appraised value, interest
11 rates are low, is it a seller's market, what is it?
12 A I will tell you that one sale, if it
13 existed, is not relevant. It is too long ago. And I
14 looked at nineteen sales of properties, and actually in
15 Drexel Hills, the $175,000.00 value is on the low side of
16 the range of value in the neighborhood. So I am actually
17 saying your mother's house is not even an average sale
18 price for Drexel Hills for a two-story house.
19 Q Could we qualify that statement so we don't
20 mislead the Court? In that further down on Hill Top Drive
21 there are homes that sell for two, three hundred thousand
22 dollars because they have views of the entire Susquehanna
23 and Cumberland Gap, and they are significantly larger and
24 significantly have greater value, architectural substance,
25 the whole nine years.
71
1 A Yes, I am a aware of that.
2 Q So we could lead this Court to believing
3 there was a cheap deal in Drexel Hills. Is it because
4 there are other homes that many, many homes on Hill Top
5 Drive, because of the location overlooking the hills there
6 and the view of the capital are substantially larger, don't
7 even relate to my mother's home?
8 A In general, this was one of the easiest
9 appraisals I have done in the scheme of things. I have
10 comparable sales that are very, very similar to the subject
11 that sold within two blocks of the subject. And it is rare
12 for an appraiser to have such good data to compare a
13 subject property to. So I have belief this appraisal is
14 well-founded, well-supported, and I have ample confidence
15 in it.
16 Q I have one final question for you, sir. In
17 looking -- if I were to just share with you that real
18 estate sales people had done the search on Drexel Hills in
19 that area, that the average home comparative to my mother's
20 home went for $163,000.00, how would you arrive at your
21 appraisal? Was it 179 -- no --
22 A 75.
23 Q 175, and then the bank listed it at 179,9,
24 how that --
25 A Real estate brokers have their expertise in
72
the marketing of real estate. Appraisers have their
2 expertise in valuation and estimating market value. So I
3 believe I went to more -- I did more research and I am
4 better experienced at establishing value than the vast
5 majority of real estate brokers and agents.
6 MS. GERBER: Thank you, sir.
7 THE COURT: You may step down, sir.
8 MS. MENDELSOHN: Your Honor, at this point I
9 would ask the Court to make the consent of Fred Gerber --
10 THE COURT: Say what?
11 MS. MENDELSOHN: At this point, Your Honor,
12 I would ask the Court to make the consent signed by Fred
13 Gerber that is attached to the petition a part of the
14 record.
15 THE COURT: Well, your petition is part of
16 the record, ma'am.
17 MS. MENDELSOHN: Ail right. Well, I am
18 asking that it be essentially admitted as evidence in lieu
19 of having to take more of the Court's time to have Mr.
20 Gerber testify as to that consent being signed by him.
21 MS. GERBER: Your Honor, I object.
22 THE COURT: What?
23 MS. GERBER: I object to her motion to --
24 THE COURT: Fred Gerber consents to the
25 sale. Is that your recommendation?
73
1 MS. MENDELSOHN: That is correct, Your
2 Honor.
3 THE COURT: All right.
4 MS. GERBER: I reserve the right to call Mr.
5 Fred Gerber to the stand to cross-examine.
6 THE COURT: I don't know anything about
7 that, ma'am. He is here in the courtroom and he consents.
8 MS. GERBER: Yes, he is.
9 THE COURT: Is that it?
10 MS. MENDELSOHN: Yeah.
11 THE COURT: All right. What else do you
12 have?
13 MS. MENDELSOHN: Just a moment, Your Honor.
14 Your Honor, at this point I would ask that
15 our exhibits be entered into evidence. They are
16 Petitioner's Exhibits A through C.
17 THE COURT: Mr. Rupp, she offered A through
18 C.
19 MR. RUPP: And the consent, does that
20 include the consents?
21 THE COURT: Any objection?
22 MR. RUPP: No, Your Honor.
23 THE COURT: Ma'am?
24 MS. GERBER: No objections.
25 THE COURT: All right. A through C are
74
1 admitted.
2 MS. MENDELSOHN: And, Your Honor, as well, I
3 would like to reserve the right to call Fred Gerber as a
4 rebuttal witness.
5 THE COURT: Ma'am, just tell me what your
6 case-in-chief is. We will worry about --
7 MS. MENDELSOHN: I think we have presented
8 that at this point. So we are satisfied.
9 THE COURT: You are resting.
10 MS. MENDELSOHN: Yes, we are.
11 THE COURT: Mr. Rupp?
12 MR. RUPP: No questions, Your Honor. No
13 witnesses.
14 THE COURT: You are ready to present
15 something, Ms. Gerber?
16 MS. GERBER: Yes, I am, sir.
17 THE COURT: Who is here in court with you
18 that you are going to be offering?
19 MS. GERBER: I have Ms. Tammy Sheaffer who
20 is a broker.
21 THE COURT: Tammy Sheaffer.
22 MS. GERBER: Ms. Tammy Sheaffer.
23 THE COURT: Okay.
24 MS. GERBER: She is a broker and an
25 appraiser.
75
THE COURT: Ail right. Who else?
2 MS. GERBER: I have Mr. Phil Miller, who is
3 a certified public accountant.
4 THE COURT: Okay.
5 MS. GERBER: And I have myself.
6 THE COURT: You will have to make an offer
7 on him.
8 MS. GERBER: Yes, sir.
9 THE COURT: All right.
10 MS. GERBER: And then I have myself, who
11 will testify.
12 THE COURT: All right. So we are going to
13 take your appraiser after we take a very short recess
14 again.
15 (Whereupon, a recess was taken.)
16 THE COURT: Let's have your witness, Ms.
17 Gerber.
18 MS. GERBER: At this time, Your Honor, I
19 would like to call Ms. Tammy Sheaffer to the stand.
20 Whereupon,
21 TAMMY SHEAFFER
22 having been duly sworn, testified as follows:
23 THE COURT: Your name, ma'am.
24 THE WITNESS: My name is Tammy Sheaffer.
25 THE COURT: Your business address?
76
THE WITNESS: 1002, Suite 100, Bridge
2 Street, New Cumberland.
3 THE COURT: What is that?
4 THE WITNESS: It is Bridge Street Realty,
5 LLC.
6 THE COURT: Of which you are?
7 THE WITNESS: I am the principal and
8 managing member.
9 THE COURT: Ms. Gerber.
10 MS. GERBER: Judge Hoffer, I would like to
11 enter this witness as an expert.
12 DIRECT EXAMINATION
13 BY MS. GERBER:
14 Q Would you please tell us your experience and
15 background?
16 A Yes. I am a real estate broker and also a
17 general certified appraiser. I have been a real estate
18 broker since 1988 and a certified real estate appraiser
19 since 1991. I was employed by Citicorp Bank as a staff
20 appraiser for residential appraising, as well as York Bank,
21 I was their chief review appraiser for ten years. And I
22 have a master's degree from Johns Hopkins in Baltimore in
23 real estate.
24 Q You are also a broker, is that correct?
25 A Yes, I am.
77
1 Q At one point in time, did you work for York
2 Bank?
3 A Yes.
4 Q And are you also part of the Appraisal
5 Institute of America?
6 A No, I am not. I was a member of that for
7 ten years, and I no longer am.
8 Q Were you trained by them?
9 A Yes, I have taken all of their classes.
10 Q Do you have any awards or the certifications
11 or anything?
12 THE COURT: Louder, ma'am. I can't hear
13 you.
14 BY MS. GERBER:
15 Q Do you have any awards or certifications --
16 I am not an appraiser -- that you can add to this? I don't
17 know how to lead the questions.
18 A Appraisers don't necessarily get awards. I
19 have a general certification through the state
20 certification board, which is the same certification that
21 Mark Heckman and George Clouser also have.
22 Q Are you familiar with George Clouser?
23 A I know both Mark Heckman and George Clouser.
24 As the chief review appraiser at York Bank, I had an
25 opportunity to order appraisals for the central
78
Pennsylvania area. I have read and reviewed and counseled
2 with almost all of the appraisers in central Pa.
3 MS. GERBER: I would like to offer this
4 gentlelady as an expert, please.
5 THE COURT: Questions on her qualifications.
6 MS. MENDELSOHN: As an expert in what, Your
7 Honor? What is the area of expertise?
8 MS. GERBER: As an appraiser and real estate
9 broker and residential broker.
10 THE COURT: As a residential home appraiser,
11 ma'am, is that what you --
12 THE WITNESS: As a residential real estate
13 appraiser.
14 MS. MENDELSOHN: I have no objection, Your
15 Honor.
16 MR. RUPP: No objection, Your Honor.
17 THE COURT: All right.
18 BY MS. GERBER:
19 Q Did you have the opportunity to review the
20 appraisal done by Mr. Mark Heckman on October 12 of 2002?
21 A Yes, I did.
22 Q And would you please be so kind to tell us
23 the, the Court, what you found in your review?
24 THE COURT: Well, let me ask you, ma'am, has
25 the witness done her own appraisal of this house of your
79
1 mother's?
2 BY MS. GERBER:
3 Q Have you done an appraisal of this house,
4 Ms. Sheaffer?
5 A No.
6 Q Can you tell us what you have done on this
7 house at 263 Hill Top Drive?
8 A I was contacted last Wednesday to do a
9 review, a field review of the 1004 form that was prepared
10 by Mark Heckman. And it is typical to use the residential
11 appraisal review field review report form, and that is the
12 form that I have completed.
13 I drove by the exterior of the subject
14 property as well as the two comparables that were used in
15 the analysis. I also did some court -- preliminary
16 research of the courthouse assessment office, pulled the
17 tax record to review the sketch and compare it with Mark
18 Heckman's sketch of the property. And I did walk around
19 the perimeter of the subject property and measure the
20 exterior of the subject property. I did not have access to
21 go inside the subject property.
22 I read the report, and I confirmed all data.
23 that was used in the real estate appraisal as being
24 accurate. I did have a couple questions that were not
25 fully supported. The primary question that I had were the
80
price range of the neighborhood and the definition of the
2 neighborhood.
3 On the appraisal that Mark prepared, he
4 states that the neighborhood is New Cumberland Borough and
5 he gives a price range that is rather high. It was 160 to
6 250 for New Cumberland Borough. I did not agree with that.
7 He also said the median price range was 190.
8 I think New Cumberland Borough has various price ranged
9 homes, many of which are under $100,000.00. If the
10 neighborhood were defined as Drexel Hills, I would concur
11 with his estimate of neighborhood value for single family
12 housing as more appropriate. However, I believe that there
13 are some older, smaller homes in Drexel Hills that sell in
14 the low one hundreds.
15 The other question I had was on 'his
16 adjustment grid, and that was I questioned the time
17 adjustments because I did not see anywhere in his report
18 where he gave adequate support for those time adjustments.
19 And they are upward adjustments.
20 So any review appraisal or mortgage
21 underwriter would look at those adjustments with a
22 question. There should have been some sort of an
23 explanation. However, Mark did give us some explanation
24 here in court today.
25 The other adjustment that I questioned was
81
the upward adjustment for the fifth bedroom, and the
2 comment that the fifth bedroom had appeal in the market
3 area or was superior. The square footage adjustment for
4 the three comps because they are larger was a negative
5 adjustment, which is appropriate. But they kind of offset
6 each other. Whether they are appropriate or not, as far as
7 the fifth bedroom adjustment, is the main adjustment that I
8 had question about.
9 And as far as the cost approach, typically
10 in a summary appraisal report, it is typical if the
11 property is of an older nature that you do not include a
12 cost estimate because of the difficulty in estimating
13 depreciation.
14 In Mark's report, he did not include a cost
15 approach. He also did not include a comment in that area
16 stating that he had considered it and why he was not
17 including it. And typically that is an acceptable
18 appraiser practice.
19 My understanding is under uniform standards
20 of professional practice, which we all must adhere to as
21 certified appraisers under the state certification board,
22 that one of the binding requirements of use path is that
23 you must state a land value in the cost approach,
24 regardless of whether you are fully developing it or not.
25 As far as the value conclusion, I did not
82
conclude whether or not I concurred with his value.
2 Because I did not have the opportunity to inspect the
3 interior of the property.
4 But because of the questions that I have,
5 the two adjustments that I questioned, which were both in
6 the upward direction and both sizable, 5000 -- well, comp
7 one the adjustment was 5,400 and 4,000, and comp two was an
8 upward of 9,000, comp plus a 4,000 for the fifth bedroom.
9 And this comp three was upward of six and four on average,
10 which is an upward adjustment of about $10,000.00.
11 So, in conclusion, in my testimony, it would
12 be reasonable for me to state that if these adjustments
13 cannot be properly supported, the value could be somewhat
14 higher than I might conclude had I prepared an appraisal
15 using these comparable sales.
16 Q Are you familiar with the neighborhood of
17 Drexel Hills?
18 A Yes, I am. I lived in Drexel Hills. I
19 lived at 1038 Swarthmore for two years.
20 Q Are you familiar with homes that are
21 identical in architecture and design and structure to my
22 mother's home?
23 A I have driven through the neighborhood and
24 researched the most recent sales. I went back to 1996
25 looking at the comparable sales. I looked at all the sales
83
that sold on Hill Top Road, and there were some similar
2 homes from the exterior.
3 It is difficult to show that the floor plan
4 is exactly the same where the assessment office records do
5 not include floor plan. They are just a floor sketch of
6 the exterior of the building so you can see that they are
7 similar as far as square footage.
8 Q Well, is it fair to say that unless you were
9 given the opportunity to get into the house, Mr. Heckman's
10 appraisal, that you could not give us -- give me and the
11 Court an adequate and complete appraisal review?
12 A It is not necessarily an appraisal review.
13 Q Or an appraisal.
14 A An appraisal, yes. In order for me to
15 complete an appraisal, I would have to do an interior
16 inspection.
17 Q And have you seen Mr. Clouser's appraisal?
18 A Yes. I was handed it this morning, but I
19 was not provided that report in ample time to do a review.
20 So therefore I cannot testify on that report.
21 Q So are you saying to this Court that at this
22 time that you have some questions about some of the
23 regulations -- I'm sorry, I don't know the exact words --
24 which you said are binding under the professional codes of
25 appraisers that he didn't make explanations for -- what did
84
you say -- cost -- I would have to go back in the record --
2 cost?
3 A When you do an appraisal, okay, there are
4 certain requirements. And we have departure provisions
5 within use path or the uniform standard of professional
6 practice. As appraisers we all make our best attempt to
7 adhere to these codes, so to speak.
8 Originally the Appraisal Institute, the
9 Appraisal Institute and Foundation was the first
10 organization that provided the uniform standards of
11 professional practice. And they more or less administered
12 and provided guidance for appraisers.
13 Since the certification has come about, the
14 State Certification Board now also adheres to the uniform
15 standards of professional practice and has taken over that
16 role, so to speak, okay. So the uniform standard of
17 professional practice, which we adhere to, it is our set of
18 guidelines, okay, we have some interpretation of those
19 guidelines. But my understanding is that with those
20 guidelines, that in the cost approach, that you are to
21 include a land value regardless of whether or not you are
22 going to admit presenting that completely and developing
23 it.
24 Q So it is your expert testimony that this is
25 glaringly omitted and that in order to comply to the state
85
certification and the Appraisal Institute of America
2 Foundation, that this needs to be re-evaluated and added to
3 this?
4 A I think that typically what happens is that
5 the appraiser is contacted and asked if they can make a
6 correction there. And that is usually where it stops. I
7 don't believe there is an appraiser out there that would
8 refuse making any correction once it has been brought to
9 their attention.
10 Q So then this could be done, if Mr. Heckman
11 is to make the addition?
12 A Yes.
13 Q And then in terms of Mr. Clouser's
14 appraisal, because you were not given ample time, you would
15 need more time to make the evaluation of his appraisal and
16 see if he had any glaring or omitted use paths regulations
17 or forms, formats?
18 A I did look at the cost approach on George's
19 report. And if you look at his report, he does make a cost
20 report, a cost approach in the -- on the section of the
21 form itself. It is on the second page at the top. He does
22 include a land value as well as estimates for depreciation.
23 The other thing about Mark's appraisal is
24 that if I were to look at the depreciation estimates on
25 Mark or George Clouser's report -- I think Mark had
86
included one -- I would not be able to know if they were
2 accurate without inspecting the property.
3 Q So, in other words, if it was the'Court's
4 decision, to try to make a fair and accurate decision on
5 this, it would be fair to say that we would have to offer
6 you, our independent appraiser, the opportunity to do a
7 fair and independent appraisal of this property aside from
8 those requested and paid for by PNC Bank?
9 A If the Court was to permit you to have an
10 appraisal done of the property, I would be available to do
11 that service for you.
12 Q Would that be something that the Institute
13 of America Foundation would recommend in terms to arrive at
14 a fair, a complete -- to arrive or create a complete
15 appraisal with all the t's crossed and the i's dotted?
16 A I cannot answer for the Institute as I am
17 not a member currently. But what I can tell you is that if
18 there is to be another appraisal done, it would need to be
19 done by an independent, unbiased appraiser, and perhaps
20 even another appraiser. I don't know. I mean I would be
21 willing to do it, but that would be up to the Court.
22 Q I understand. Thank you. I don't have any
23 questions at this time unless I have further rebuttal
24 questions.
25 CROSS-EXAMINATION
87
1 BY MS. MENDELSOHN:
2 Q Ms. Sheaffer, let me get this straight, you
3 are saying that you think the value of the property should
4 be lower because of the departure provisions, correct?
5 A No.
6 Q Well, you, you talked about, ma'am, that you
7 don't agree with some of the adjustments that were made.
8 Isn't that correct?
9 A What I said was that there was not
10 supporting -- there were not supporting comments made about
11 those adjustments to lead me to understand them.
12 Q Now, you are a broker too, ma'am, is that
13 correct?
14 A Yes, I am.
15 Q Now, ma'am, wouldn't you be happy if you
16 were selling this house as a broker, that you are getting
17 $175,000.00, and that is the appraised value, right?
18 A I do not broker homes. I only broker
19
commercial and industrial real estate.
20 MS. MENDELSOHN: Thank you.
21 MR. RUPP: No questions, Your Honor.
22 MS. GERBER: Your Honor, I object to --
23 THE COURT: What?
24 MS. GERBER: I object to Ms. Mendelsohn,s
25 line of questioning in the appraisal of --
88
1 REDIRECT EXAMINATION
2 BY MS. GERBER:
3 Q Per the regulations of the Institute and the
4 state certification, you call it use path --
5 A Use path.
6 Q -- is it not the intent of the appraiser to
7 not think about what the bank wants as an appraisal, or
8 what the real estate broker wants as an appraisal, or a
9 real estate salesman wants as the number for the appraisal,
10 but actually what the actual appraisal is?
11 A The real estate appraiser walks a very fine
12 line between a client, the buyer and the seller and the
13 real estate broker. And it is the real estate appraiser's
14 job to be as independent and put on a, what I would say, a
15 non-emotional conclusion of value to the property and use
16 their best judgment.
17 A real estate appraiser does market research
18 and uses historical information and is looking backward in
19 time. So the appraiser can see what has happened in the
20 past.
21 A real estate broker is looking to the
22 future and is always looking to see the appreciation occur.
23 So it is the perspective from which they operate.
24 A lender is -- a banker is trying to make a
25 mortgage loan and put a mortgage through the system. So
89
each one has their own motive and each party in the
2 transaction is motivated by different things.
3 The real estate broker is the party that is
4 called -- or the appraiser is called upon to be the
5 independent opinion of value there. It is a very, very
6 difficult position that the appraiser is put in. And the
7 appraiser has to stand tall and come up with their best
8 estimate of market value.
9 Q So if I interpret Ms. Mendelsohn's comment
10 to be that the bank would be satisfied if it came in at a
11 higher price, possibly for the estate, then we are saying
12 that the real estate salesman, Joe Severino, of Jack
13 Gaughen, would get higher commissions and the bank, PNC,
14 would also get higher fees, is that correct?
15 MS. MENDELSOHN: Objection. This is
16 irrelevant.
17 MS. GERBER: It is relevant. It is totally
18 relevant to the sale of this estate.
19 THE COURT: Ma'am, if you sold the house for
20 half a million dollars, I know everybody would get more
21
money out of it. What is your next question?
22 MS. GERBER: Including my mother would pay
23 for the bank.
24 THE COURT: Ma'am. Ma'am, do you have
25
anymore for the witness?
90
BY MS. GERBER:
2 Q Has it ever been your experience in this
3 business as an appraiser that banks or guardians of estate
4 would ask an appraiser to come in high or low or to give
5 them a ballpark figure? Is this done?
6 THE COURT: Ma'am, you are way out of line
7
on your redirect. Counsel didn't ask anything --
8 MS. GERBER: I am saying is it in the
9 central Pennsylvania, Drexel Hills, New Cumberland area, is
10 it possible that appraisals can come in high for the
11 clients?
12 THE COURT: Is it possible? Anything is
13 possible, ma'am. What is your next question?
14 BY MS. GERBER:
15 Q Is it your opinion that Mr. Clouser comes in
16 high on his appraisals?
17 A I don't have any conclusion or opinion on
18 Mr. Clouser's report because I did not have an adequate
19 opportunity to review it.
20 Q And Mr. Heckman's, did he come in high?
21 A Because the two adjustments that I question
22
are in the upward direction, and they were not explained in
23 the addenda of the report, I do not find anywhere in the
24 report where they had been adequately supported or
25 explained. To me as a review appraiser, I could not concur
91
1 with those adjustments.
2 Q Could you offer a professional opinion why
3 there was an appraisal done by Mr. Heckman on October 12
4 and then by Mr. Clouser on October 29? Is this usual and
5 customary in the business?
6 A As a bank employee, I worked in the loan
7 work out department at York Bank. And it was very
8 customary for us to order multiple appraisals from
9 different appraisers.
10 Q And is it usual and customary on the day of
11 a death of an individual that Mr. Clouser actually would
12 have gotten into the family home on February 26 -- 22 of
13 19987
14 THE COURT: What are you talking about,
15
ma'am?
16 MS. GERBER: Your Honor, Mr. Clouser stated
17 that on February 22, 1999, he did an appraisal on the
18 family home. This is the day of my father's death. How is
19 it possible that he got in the house on the day of my
20 father's death?
21 MS. MENDELSOHN: Objection. This is not at
22 all relevant.
23 THE COURT: I don't know.
24 MS. GERBER: It goes to relevancy to his
25 credibility as an appraiser.
92
1 MS. MENDELSOHN: The time for asking that
2 sort of question was when Mr. Clouser was on the stand.
3 MS. GERBER: But I asked to recall Mr.
4 Clouser to the stand. I have no further questions of Ms.
5 Sheaffer.
6 THE COURT: Thank you, ma'am. You may step
7 down.
8 THE WITNESS: Thank you.
9 MS. GERBER: I would like to recall Mr.
10 Clouser to the stand, please.
11 THE COURT: Make an offer.
12 MS. GERBER: I would like to, I have a
13 question of his credibility. He said he went in on
14 February 22, 1998, that is the date of my father's death.
15 It is hardly possible. I was there. My father died. That
16 he came in and did a full appraisal and measurement of my
17 family home.
18 THE COURT: And?
19 MS. GERBER: I was living in the home at the
20 time. I would like him to explain the date, please. It
21
goes to credibility.
22 MS. MENDELSOHN: Your Honor, we are not here
23 today --
24 MS. GERBER: It goes to credibility to --
25 THE COURT: Ma'am, shut your mouth while she
93
is talking, and she will be quiet when you are talking.
2 MS. GERBER: Thank you.
3 THE COURT: I only have one stenographer
4 here.
5 MS. MENDELSOHN: Your Honor, the topic today
6 is only the sale of this real estate. The only thing that
7 is relevant to that is the current appraised value. Ms.
8 Gerber has already had an opportunity to cross-examine Mr.
9 Clouser, and I don't think that we should drag him through
10 that again.
11 THE COURT: I agree.
12 MS. GERBER: Your Honor, for the record, I
13 would like to state that I object that he is not able to
14
come back and state his credibility to that.
15 THE COURT: For that purpose, madam, your
16 request is refused.
17 MS. GERBER: I have no further questions.
18 THE COURT: What?
19 MS. GERBER: I have no further questions,
20 Your Honor, at this time, for Ms. Sheaffer.
21 THE COURT: Well, she is off the stand,
22 ma'am.
23 MS. GERBER: Okay.
24 THE COURT: Do you have another witness?
25 MS. GERBER: Yes, I do. I would like to
94
1 call Mr. Philip Miller.
2 THE COURT: And who is Mr. Miller?
3 MS. GERBER: He is a certified public
4 accountant.
5 THE COURT: I suppose you want an offer?
6 MS. MENDELSOHN: Yes, I would like an offer
7 of proof, Your Honor.
8 THE COURT: Could you make a succinct offer,
9 ma'am, on his testimony?
10 MS. GERBER: Yes, sir. I am going to enter
11 him as -- I am going to enter him as an expert CPA and
12 accountant. I have his resume. And he is going to speak
13 towards the next part of my objection to the sale of this
14 home, based on the guardian of person decision to make the
15 inappropriate decision to sell this house.
16 It is my understanding that the guardian of
17
person made the decision that my mother was not going to
18 return so I -- what I have left is Mr. Miller and myself.
19 I will present Mr. Miller's testimony on the
20 financials and what has occurred in the accounting as proof
21 that this house and Mrs. Gerber, who is still alive, should
22 not be sold at this time.
23 THE COURT: For what reason?
24 MS. GERBER: My testimony, sir?
25 THE COURT: No, Mr. Miller's testimony.
95
MS. GERBER: He has had the opportunity to
2
peruse the entire accounting as submitted by PNC Bank.
3 THE COURT: Okay.
4 MS. GERBER: As well as the exceptions, and
5 he has a comment to make on them.
6 MS. MENDELSOHN: Your Honor --
7 THE COURT: That is fine. He will be able
8 to testify in front of Mr. Duncan, who is going to be the
9 auditor in the case.
10 MS. GERBER: That is correct, sir.
11 THE COURT: But what about the sale of the
12 house today?
13 MS. GERBER: He is going to testify as to
14 the value of this house in proportion to the rest of the
15 estate, which has a proportional value and potentially is
16 inappropriate in its current sale right now, and what those
17 assets would be used for.
18 THE COURT: And why is it inappropriate to
19 sell the house, in Mr. Miller's CPA expertise?
20 MS. GERBER: Only that he has the -- he has
21 had the opportunity, Your Honor, to -- I am going to
22 present a grid of expenses.
23 THE COURT: Ma'am --
24 MS. GERBER: He is going to --
25 THE COURT: Could you hear my question?
96
MS. GERBER: I think I heard it, sir. I
2 would like to respond to what I think I heard.
3 THE COURT: I said in Mr. Miller's CPA
4 expertise what reason does he have that this home should
5 not be sold?
6 MS. GERBER: He is going to refute the
7 premise by PNC Bank that it is imperative to sell this
8 house for assets for the care of Mrs. Gerber.
9 What he is going to show is that it is
10 cheaper to keep Mrs. Gerber in her home in Pennsylvania
11 than where she currently is. And he has done that based on
12 his comparative analysis and review of all the accounting
13 which has been submitted to this court.
14 THE COURT: So are you telling me that, in
15 Mr. Miller's opinion, this house should never been sold?
16 MS. GERBER: Yes, sir.
17 THE COURT: Never ever?
18 MS. GERBER: Mrs. Gerber is my mother, is
19 still alive, Your Honor.
20 THE COURT: As long as she is alive?
21 MS. GERBER: Yes, sir.
22 THE COURT: All right. I don't know how he
23
can possibly testify to that from a CPA background.
24 MS. GERBER: Because he has reviewed all the
25 exceptions. He has reviewed all the accounting, including
97
the annual report, and he has significant comments to make
2 about the state of this estate in regard to the bank's
3 management of their estate as well as the guardian of the
4
person.
5 THE COURT: All right. Maybe somebody is
6 doing something wrong, I don't know, but that is not on my
7 table today.
8 MS. GERBER: I submit, Your Honor, that this
9 is directly proportionately related to the U.S. Supreme
10 Court Olmsted Act and other testimony that I will bring
11 forward.
12 THE COURT: With the what act?
13 MS. GERBER: The U.S. Supreme Court Olmsted
14 Act, that Mrs. Gerber cannot be put in the most restrictive
15 setting and that the sale of this house will permanently
16 institutionalize her.
17 THE COURT: Ma'am, another colleague of mine
18 heard the question of whether Mrs. Gerber was mentally
19 incompetent and needed a guardian. And is that on appeal
20 right now?
21 MS. GERBER: Yes, sir.
22 MS. MENDELSOHN: Yes.
23 THE COURT: All right. Well, you will get
24
your answer out of that.
25 MS. GERBER: Sir, what I am going to testify
98
-- and Mr. Miller can submit and corroborate -- is that
2 under the American Disability Act, the Older Americans Act,
3 and the Olmsted Act, U.S. Supreme Court decision on the
4 Olmsted Act, and the state regulations under the
5 Pennsylvania Department of Aging, Mrs. Gerber cannot be put
6 in the most restrictive setting. If you sell this house --
7 THE COURT: Well, ma'am --
8 MS. GERBER: -- Mrs. Gerber will be
9 permanently institutionalized.
10 THE COURT: -- you are going to have to take
11 those questions up with the Superior Court who is now
12 reviewing, I understand, Judge Bayley's decision about your
13 mother's need for guardian.
14 MS. GERBER: Today, Your Honor, you are
15 hearing the sale, the potential sale.
16 THE COURT: Yes, I am, ma'am.
17 MS. GERBER: If Your Honor so rules to sell
18
my mother's house, it will be in violation of these three
19 U.S. federal acts, laws, which will permanently
20 institutionalize her.
21 Mr. Miller and myself are going to present
22 that it is beyond the scope and means of the bank's
23 decision and the guardian of estate with the -- I have
24 evidence, I have testimony, myself, and I have a codicil,
25 Your Honor, that stipulates that Mrs. Gerber wants to live
99
in her house, needs to stay in her house, and for financial
2
purposes, reasons for which Mr. Miller can elaborate on, as
3 well as myself and my testimony, Mrs. Gerber needs to come
4 back to her home in the least restrictive setting, per the
5 ADA, Older Americans Act, and the U.S. Supreme Court
6 Olmsted ruling, and the Pennsylvania State Department of
7 Aging regulations.
8 MS. MENDELSOHN: Your Honor, if I am
9 understanding that correctly, we are still on the topic of
10 whether it is appropriate for this witness to testify.
11 What I am understanding from Ms. Gerber is
12 that his testimony will be that this is a cheaper
13 alternative to have Mrs. Gerber return to her home.
14 However, Your Honor, that is not the standard that we are
15 dealing with today. We are talking about what is in Mrs.
16 Gerber's best interests, not what is the cheapest
17 alternative. And that decision has already been made by
18 the guardian of the person.
19 THE COURT: You are objecting to Mr.
20 Miller's testimony.
21 MS. MENDELSOHN: Yes, I am.
22 THE COURT: Do you have anything, Mr. Rupp?
23 MR. RUPP: I object too. The relevance is
24 there is no relevance. The guardian has issued a consent
25 to the guardian of the estate, and that is all that needs
100
1 to be said.
2 MS. GERBER: Sir, I would like to --
3 THE COURT: Mr. Miller will not be
4 testifying in this proceeding today, madam. He may become
5 relevant in the accounting phase of it, but not as to
6 whether to sell this house.
7 MS. GERBER: I would like to add, sir, that
8
now it is me. And what I would like to start with is that
9 I would like to state to this court that we have filed two
10 guardianship review hearings that are still pending.
11 We have filed a motion to stay the sale of
12 this house.
13 We have filed a motion for PNC Bank to do a
14 cost analysis on the cost of her care in Pennsylvania vs
15 Illinois. We have also filed a motion for PNC Bank to file
16
an accurate annual report and to submit complete receipts
17 and itemizations and copies of all expenses for the care of
18 the estate of Mrs. Gerber.
19 I submit to this court -- and I will further
20
argue this in my testimony -- that it is inappropriate at
21 this time, with all due respect, I don't know how to say
22 this, I do not wish to offend you, but with all due
23 respect, it is inappropriate for this court at this time to
24 make this decision for the sale of this house.
25 THE COURT: Let me say to you, Ms. Gerber,
101
1
since you are a civilian, so to speak, I have let you go on
2 and on and on with talking. And I wouldn't give a lawyer
3 ten percent of what I have allowed you to do today. But
4 there is a limit, madam. You now want to testify about
5 some legal impediment to selling this house in that it is
6 already under contract in some fashion or another?
7 MS. GERBER: Yes, sir. And that --
8 THE COURT: Make an offer on that, madam.
9 MS. GERBER: I have a codicil that I will
10 submit to you.
11 THE COURT: A codicil of what?
12 MS. GERBER: My father's -- when he was
13 fully competent, without any medication or illness,
14 medication.
15 THE COURT: What is your document, madam?
16 May I see it?
17 MS. GERBER: Yes, sir. Would you like to
18 swear me in, Your Honor?
19 THE COURT: Madam, we are going to do this
20
my way for the moment.
21 MS. GERBER: Ail right. I'm sorry. I have
22 it, sir. Just a moment, please.
23 Can I have a few minutes to get my document?
24 THE COURT: Pardon me?
25 MS. GERBER: Could I have five minutes to
102
1 get my documents together to submit to you, Your Honor?
2 THE COURT: Ma'am, you have got them
3 scattered all over my six chairs down there, all over the
4 table, you have five minutes.
5 MS. GERBER: Thank you, Your Honor.
6 THE COURT: We are in recess. Do you have a
7
copy of whatever she is talking about?
8 MS. GERBER: I have copies for everybody,
9 Your Honor.
10 THE COURT: All right. Make sure they have
11 them.
12 (Whereupon, a recess was taken.)
13 MS. GERBER: Your Honor, at this time I
14 would like to -- I would like to take a detour if you don't
15 mind.
16 THE COURT: No, ma'am, I do mind.
17 MS. GERBER: I wanted to call another
18 witness first, and then I will provide you with the
19 documents I have.
20 THE COURT: What document do you have?
21 MS. GERBER: I have a written document by my
22 father.
23 THE COURT: Well, give counsel a copy of it
24 and give me a copy of it ma'am. See what this is.
25 MS. GERBER: I have to make five copies, and
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1 I have a document that's also by my mother. Just let me
2 finish this, please. I would like to state that this was
3 referred to before Judge Bayley, these documents, on March
4 22, 2001. I asked him if he wanted copies of them, he said
5 no. At this time I am going to admit these documents.
6 THE COURT: Give a copy to counsel. And
7 what do you represent this is?
8 MS. GERBER: This is my mother writing --
9 THE COURT: Pardon?
10 MS. GERBER: This is my mother's
11 handwriting, sir.
12 THE COURT: And what is it? What you have
13 given me is signed by Fred.
14 MS. GERBER: I have the original sir.
15 THE COURT: Ma'am, what you have given me is
16 signed by Fred. Did you give me the wrong document?
17 MS. GERBER: No, sir. As I stated, this is
18 -- this document I gave you is my mother's handwriting. It
19 is a transcription of this document I am giving you which
20 is my father's handwriting, stating his intent of --
21 THE COURT: What are you representing this
22 is? A will, ma'am?
23 MS. GERBER': No.
24 THE COURT: Are you representing this is a
25 will?
104
1 MS. GERBER: It is not a will. If it was a
2 will --
3 THE COURT: If it is a will, then I don't
4 want to really have anything more to do it, ma'am.
5 MS. GERBER: What it is, Your Honor, I would
6 just like to ask, do I need to be sworn in? I know you
7 know what you are doing.
8 THE COURT: Ma'am, it is not a will, I am
9 not interested in it.
10 MS. GERBER: It is a testimony by my father
11 which does not require a will. It was a contract.
12 THE COURT: Madam --
13 MS. GERBER: It is a contract exercised by
14
my father in 1997.
15 THE COURT: Madam, understand me. If it is
16 not a will, I am not interested in it. Now, what is your
17 next document that you are trying to give me?
18 MS. GERBER: The other document is -- I
19 would like to ask Your Honor a question. This is a
20 contract my father executed with me and my sister. It is a
21 legal contract.
22 THE COURT: Ma'am, I am trying to tell you
23 that --
24 MS. GERBER: Disposition of the property,
25 Your Honor.
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1 THE COURT: -- if these things aren't wills,
2 I am not interested in them.
3 MS. GERBER: They will be submitted to the
4 review guardianship. I have the original here. This is
5 from Mrs. Mildred Scott.
6 THE COURT: What are you giving me now?
7 MS. GERBER: I subpoenaed her. She could
8 not be here today due to surgery. She did an affidavit and
9 it is notarized. And I am submitting this to the court.
10 THE COURT: About what?
11 MS. GERBER: As to what transpired with my
12 mother and her intent and wishes to stay in the home and
13 the treatment of the guardian which led to the guardian
14 removing my mother from her home at 623 Hill Top Drive.
15 THE COURT: Counsel?
16 MS. MENDELSOHN: Your Honor, we do have a
17 guardian that has been appointed for the person. And that
18 guardian makes those decisions.
19 THE COURT: Louder, please.
20 MS. MENDELSOHN: The guardian of the person
21 makes the decisions regarding the living arrangements for
22 Mildred Gerber at this point. I have never seen this
23 before. I have no idea what she is talking about. But the
24 legal authority right now to make these decisions rests
25 with the guardian of the person.
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THE COURT: Well, you have --
2 MS. GERBER: In the guardianship of the
3
person and the guardianship of the estate goes hand-in-hand
4 in making decision about a human being and where they live.
5 THE COURT: Besides Ms. Mendelsohn's
6 objections, you have some evidentiary objections to me
7 receiving some affidavit from somebody who isn't here, not
8 subject to cross-examination.
9 MS. GERBER: I have the copy of her subpoena
10 and I have her notarized affidavit that I am submitting to
11 the --
12 THE COURT: Ma'am, I don't think you listen
13 to me.
14 MS. GERBER: I didn't understand you, sir.
15 I am listening. I don't understand then.
16 THE COURT: The witness has got to be here
17 in court and got to be subject to cross-examination, for
18
openers, besides the objections of Ms. Mendelsohn and
19 probably others that I am not even thinking of right now.
20 MS. GERBER: Then I have to ask the Court's
21 indulgence in lieu of the fact that there are two -- there
22 is a motion for a hearing of the guardianship of person and
23 there is an appeal that if this house is sold, and these --
24 then I have to ask the Court's indulgence to delay a
25 decision on the sale of the house pending these affidavits
107
and the contracts and the motion for review guardianship of
2
person and the appeal which is to be argued more than
3 likely in January. All the briefs have been filed.
4 THE COURT: You want a delay here.
5 MS. GERBER: I want a delay for the sale of
6 this house based on what I would submit to the Court is
7 that if this house is sold, Mrs. Gerber will be permanently
8 institutionalized.
9 And in the review guardianship of person, we
10 will show that Mr. Gerber not only perjured himself in his
11 testimony, he stated Mrs. Gerber, my mother, would stay in
12 this house.
13 These affidavits from Mildred Scott state to
14 this effect, that she did want to see me. Mr. Gerber went
15 about in every shape or form, we have testimony, evidence,
16 and we have witnesses, and she also has been interviewed by
17
my attorney, Stan Laskowski, who will argue the motion
18 regarding --
19 THE COURT: Madam, the only thing I am here
2O
on today is whether this is a fair price for this house.
21 Do you have evidence on that?
22 MS. GERBER: I don't -- then I have my
23 testimony, sir. And for that, I wanted to call my brother,
24 Fred Gerber, to the stand, please.
25 THE COURT: Make an offer of what you are
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trying to get out of him.
2 MS. GERBER: On the 16th of January, my
3 father -- on the 16th of January, 1998, my father gathered
4
us altogether with my mother and stated as the guarantor of
5
a revokable trust while he was alive, sane and rational,
6 that he was giving me the option to buy this house, and he
7 stated the amount for $100,000.00.
8 He then further stated that there was plenty
9 of money left in the trust. This was then corroborated by
10
my mother, with Herbert Rupp and myself in late January of
11 1998, and my mother concurred it would have to be in the
12 notes, unless they purged their notes.
13 Subsequently, the contract that I attempted
14 to give you, written in my father's hand in late 1997 and
15 transcribed as well by my mother, indicates also that the
16 majority of the property in the house was given to me
17 outright, and I accepted it per contract agreement in 1997.
18 So in lieu of -- what we have here -- also I
19 have a copy of the October 1st letter, as well as a copy of
20 the scrap of paper Mr. Brown alluded to, that I faxed to
21 him. And I do not have the FAX confirmations here, but I
22
can provide it to the Court.
23 I have the letters October 1st, on October
24 17th, that again reiterate my offer to buy it as a
25
remainder beneficiary. We also have the problem, sir, that
109
we have a trust --
2 THE COURT: You are saying so many things
3 here, ma'am, I can't keep track of them.
4 MS. GERBER: These support --
5 THE COURT: Are you saying you have a right
6 to buy this house for $100,000.007
7 MS. GERBER: Yes.
8 MS. MENDELSOHN: Your Honor, with respect to
9 that --
10 MS. GERBER: I ask that my brother be
11 brought to the stand.
12 MS. MENDELSOHN: I would like to say a few
13 words here about that issue. The house right now, Your
14 Honor, is owned by Mildred Gerber. And any contract that
15 was entered into, which I dispute there ever having been a
16 contract, any contract is of no effect and of no legal
17 validity now because that property was owned jointly
18 between Mr. and Mrs. Gerber. When Mr. Gerber passed away,
19 that property became the sole property of Mrs. Gerber, and
20
so any purported contract that was entered into in the past
21 has no effect.
22 THE COURT: Mr. Rupp?
23 MR. RUPP: I completely agree with Attorney
24 Mendelsohn. In addition, there was never any claim filed
25 in the estate of the late Fred Gerber --
110
1 MS. GERBER: Your HOnor --
2 THE COURT: By Ms. Gerber.
3 MS. GERBER: Correct.
4 THE COURT: That is amazing, ma'am.
5 MS. GERBER: I must state --
6 THE COURT: Why do you bring this up at the
7 eleventh hour?
8 MS. GERBER: Excuse me, the estate of my
9 mother and father will have to be reprobated based on the
10 fact that for five years the firm of Herbert and Richard
11 Rupp and A. J. Mendelsohn and PNC Bank have concurred
12 affirmatively and arduously that the Baltimore property was
13 part of the trust. This house is not part of the trust.
14 We will have to reopen this estate and
15
re-evaluate, which also concurs that my mother in front of
16 Herbert Rupp in his offices with me concurred and agreed to
17 the sale of this house to me, which was agreed upon in late
18 '97, and my father confirmed it as the grantor of a
19 revokable trust before all four of us -- five of us on
20 January 16 of 1998. It was agreed and accepted upon. It
21 then follows up with these contracts my father wrote in
22 late '97 as to the property inside the house.
23 I also want to state that three levels of
24 storage of my personal property have also been lifted by
25 PNC Bank from this home and are being held ransom at the
111
Harrisburg Storage Company.
2 On top of it, in the review guardianship
3 hearing by Mr. Laskowski and the appeal, what we will have
4 is testimony and evidence by witnesses, by direct
5 information, misinformation and by perjury by Mr. Fred E.
6 Gerber, the guardian, that indeed Mrs. Gerber did want to
7 stay in her home, that she did indeed want to be with me,
8 that she indeed wanted me to be there.
9 We have five other witnesses to bring up to
10 this motion and hearing that Mrs. Gerber now is currently
11 in Illinois in an environment that is not appropriate to
12 her by the Department of Health of Illinois, and their
13 report is pending. The state's Attorney General, which is
14 what they call the District Attorney for the Special
15 Victims Unit, their report is pending in Du Page County.
16 There's also actions in Du Page County by my
17 attorney, John O'Halleran, and my brother's opposing
18 attorney, that my mother does not qualify and is in an
19 inappropriate facility for her condition.
20 We also have showed in our -- my stay for my
21 motion to stay the sale of this house, it is costing
22 approximately $10,000.00 versus $5100.00 here, and we also
23 state in the guardianship hearing, which I wanted Mr.
24 Miller to share with you as a CPA, that right now PNC Bank
25 and my brother, because they have failed to do accurate in
112
any form accounting in five years, do not have a clue what
2 the total assets are of this house.
3 And the exceptions that were filed, there
4
were substantial losses by the guardian in 1998, excuse me,
5 in 1999, 2000, 2001. The guardian of the person has failed
6 to provide any accounting for 2002. And the bank during
7 the time they were guardians of the estate allowed my
8 brother and sister to essentially plunder my mother's
9 estate. So that the sale of my mother's house right now is
10 the least of our concerns in lieu of the fact that she
11 wants to come back to her community.
12 Currently she is in a state where there is
13 not my sister there nor the guardian of person. It is six
14 states away. So my mother finds herself in a community in
15 an inappropriate assisted living, which is nothing but
16 shared housing, without friends, community, her daughter,
17 her priest, her friends, who will also come and stipulate
18 that Mrs. Gerber wanted to stay. Her physician will come
19 and stipulate she wanted to stay in her home.
20 Under -- again, I hate to beat a dead horse,
21 but the ADA, the Older Americans Act, and this Olmsted, and
22 a recent act in New York states that the wishes and intents
23 of the incapacitated person -- and Alzheimer's patients do
24 fall under the ADA, which is a federal -- I'm sorry, I
25 don't know the exact term you use -- federal law, federal
113
code, especially the recent Olmsted decision that Mrs.
2 Gerber must be kept in the least restrictive environment.
3 If you sell this house, and do not delay the
4 sale of this house until the rest of the motions are heard,
5
my mother will be permanently institutionalized in a state
6 where she knows no one.
7 Her daughter, Jane, is being reviewed for
8 abuse because she entered with sizeable and concernable
9 wounds when she came into the Sunrise Assisted Living
10 Center.
11 My brother has failed to provide -- has
12 perjured himself under testimony and has stated that he
13 would keep her at home with twenty-four hour care in her
14 home, her beloved home of 34 years.
15 After that, Your Honor, in 1997, and early
16 '98, before my father's death, he provided this home to me
17 as first option. And I have a statement I have made under
18 an affidavit that my brother and sister were richly
19 rewarded for their own homes. And my father provided this
20 for me, and he did that on January 16 in front of all of
21
us, as well in private discussion with me. Because I lived
22 with my parents all in '96, most of '97, and then '99 to
23 2000, and until my brother took hostile control of my
24 mother in 2003.
25 We are now in an impasse, sir, where we are
114
1 looking at over a half million dollars being
2 misappropriated by my brother and his sister and his
3 issues. The bank allowing about two hundred thousand of
4 this to occur when they were guardians of the estate. And
5
my mother is out there hanging out to dry with no home. It
6 would be least restrictive, it will meet the federal laws,
7 it will go to my mother's benefit, to bring her home. I
8 don't care when the house is sold, sir, but my mother needs
9 to come home.
10 THE COURT: Perhaps you should be moving out
11 to Illinois to supervise this whole operation.
12 MS. GERBER: Sir, my mother's home of 34
13
years in her home state, including her grandparents, is
14 this state. 36 hours after my brother testified to Judge
15 Bayley --
16 THE COURT: Madam, madam, you don't really
17 listen to a thing I --
18 MS. GERBER: The jurisdiction of my mother
19 is in this state, not in Illinois.
20 THE COURT: Madam, you don't listen to
21 anything that I say. You don't hear a word I say.
22 MS. GERBER: I am listening to you. I have
23
no desire to move to Illinois.
24 THE COURT: You don't listen to me about me
25 telling you I only have one stenographer, and you start to
115
talk to me before I finish talking. And I suspect that you
2 could stand there all afternoon and keep going on with run
3
on sentences, and you could stay until the watchman came
4 around tonight.
5 MS. GERBER: This is my mother, Your Honor,
6 in all due respect.
7 THE COURT: Yes, it is.
8 MS. GERBER: And I have cared for her for
9 six years.
10 THE COURT: Yes, madam.
11 MS. GERBER: This is her home state. This
12 is a state that her friends --
13 THE COURT: Unless you are ready to give me
14
some relevant evidence as to why I shouldn't sign this
15 order letting the bank sell the house, I am about to call
16 the hearing to a close, madam.
17 MS. GERBER: My mother, my mother has stated
18 to her physician, who I will bring up at the guardianship
19 review hearing --
20 THE COURT: Ma'am, your mother has been
21 found incompetent to care for herself.
22 MS. GERBER: Prior to that income --
23 THE COURT: Please do not bring that up to
24 me. You have your appeal, madam.
25 MS. GERBER: If the Court does not delay the
116
1 sale of this home, and the appeal wins, my brother is
2 removed as guardian. If the bank is found surcharged, as
3 well as my brother, which is a strong possibility, and this
4 house is sold, my mother will be permanently
5 institutionalized.
6 The assets, they are being taken right now
7 for the attorney's fees, and Mr. Rupp's fees already being
8 questioned, there will be little to nothing left, where
9 will my mother go? I live five doors down from my mother,
10 Your Honor. My mother wanted to stay in this house.
11 THE COURT: Madam, you are not telling me
12 anything new.
13 MS. GERBER: Your Honor, what --
14 THE COURT: I am just about to sign the
15 order letting the sale go through.
16 MS. GERBER: I am asking you to delay the
17 sale of this home.
18 THE COURT: I will not do that, madam.
19 MS. GERBER: Could you share with me why
20 not, Your Honor?
21 THE COURT: No. We fixed a time for a
22 hearing on this today and you have not shown me any reason
23 to stop this sale.
24 MS. GERBER: The motions that were filed
25 prior to the sale of this home were filed prior to the sale
117
of this home, sir, on the cost analysis.
2 THE COURT: Ma'am, I already told you, I
3 already told you if I approve this sale, you can consider
4
your motions denied.
5 MS. GERBER: And if the guardianship hearing
6 before Judge Bayley --
7 THE COURT: You have that on appeal, madam.
8 MS. GERBER: If you sell my mother's home,
9 Your Honor, where will my mother go?
10 THE COURT: Madam, we are putting the money
11 for the sale in the trust of the bank and --
12 MS. GERBER: I made an offer on the --
13 THE COURT: They will figure out what to do.
14 MS. GERBER: I made an offer on the sale of
15 the house on October 1st, and I have all the assets for
16 which to buy this house.
17 THE COURT: Not appropriately did you do
18 that.
19 MS. GERBER: Your Honor, the bank did not
20 tell me which day they were posting the real estate, the
21 sale of this home. Was I to come every day morning, noon,
22 and lunch to see when the --
23 THE COURT: Ms. Gerber, I have heard just
24 about enough. Would you sit down, please? Is there some
25 reason I shouldn't go ahead and sign this order selling the
118
1 house? Mr. Rupp?
2 MR. RUPP: There is no reason, Your Honor.
3 THE COURT: Is there some reason that I
4 should delay this any further, Ms. Olmsted?
5 MS. MENDELSOHN: No, Your Honor. There is
6 no reason to delay it.
7 THE COURT: Ms. Mendelsohn. What am I
8 saying? Let the record reflect that I am signing the order
9 allowing the sale to go through.
10 MS. GERBER: I don't know if I can say
11 this --
12 THE COURT: Pardon?
13 MS. GERBER: I don't know if it appropriate
14 to say this now, but I will file an appeal to this --
15 THE COURT: Madam --
16 MS. GERBER: -- decision.
17 THE COURT: -- do whatever you want to do.
18 MS. GERBER: Fine. I will file an appeal of
19 this decision.
20 THE COURT: But I am telling you right now
21 that I have signed the Order allowing the sale to go
22 through. Now, when is the closing date?
23 MS. MENDELSOHN: The closing date has not
24 yet been set, Your Honor. That was pending court approval.
25 I would ask Your Honor though to offer us
119
some assistance, and perhaps I could submit an Order to
2 Your Honor, there has been -- and we have brought this to
3 the Court's attention, approximately a week ago, that there
4 has been some significant interference by Ms. Gerber with
5 the buyers of the house.
6 As I mentioned to you at the beginning of
7 this hearing, the buyers are extremely reluctant to
8 purchase the house because they are fearful for their
9 actual physical safety.
10 In addition to the statements made by Ms.
11 Gerber, there have also been signs placed in the
12 neighborhood stating that PNC Bank has engaged in
13 wrongdoing, and to pray for Ms. Gerber, and a lot of things
14 that we feel are inappropriate. I am concerned at this
15 point --
16 THE COURT: Well, take your concerns to the
17 police.
18 MS. MENDELSOHN: Well, Your Honor, the
19 problem we face with that is that the buyers do not want to
20 buy trouble. And so they will not take this matter to the
21 police unless there is -- well, they are very reticent to
22 do that, Your Honor, because they do not want to get mixed
23
up in this very bad family situation. And so our option
24 here is to try to give them as much protection as possible.
25 THE COURT: Well, Ms. Gerber, you run the
120
1 risk of perpahs some criminal offense that doesn't occur to
2
me right now, but you also run the risk of being sued for
3 substantial sum of money for interference with the business
4 relation here.
5 MS. GERBER: So this could be easily
6 resolved. The people that bought --
7 THE COURT: Ma'am --
8 MS. GERBER: I can --
9 THE COURT: I don't know. I don't know.
10 MS. GERBER: Sir, may I --
11 THE COURT: In an abundance of caution, I
12 would say to let these people alone who want to buy the
13 house. Your problem with your brother and so forth is not
14 the problem of the people that want to buy the house and
15 they are paying honest money --
16 MS. GERBER: So am I, Your Honor.
17 THE COURT: -- for an honest value for this
18 house.
19 MS. GERBER: This is my family home.
20 THE COURT: Ma'am, do you hear what I said?
21 Can you hear what I am saying? For heavens sakes, silence
22 out of you after all this. I can't believe it.
23 Well, I have cautioned you to let these
24 innocent people alone and do not be calling them on the
25 telephone. They have nothing to do with your family
121
1 problems.
2 MS. GERBER: Your Honor, may I speak?
3 THE COURT: Oh.
4 MS. GERBER: May I speak, Your Honor?
5 THE COURT: Now what, madam?
6 MS. GERBER: This is my family home.
7 THE COURT: I heard that.
8 MS. GERBER: This is all I have left. My
9 brother has harassed me out of my home in San Francisco.
10 We have the records to submit to the guardianship of the
11 appeal.
12 THE COURT: Madam, your family home is about
13 to be sold.
14 MS. GERBER: And I am a remainder
15 beneficiary and heir. I made a good offer on this home.
16 THE COURT: You will be getting some money,
17 madam, from the estate.
18 MS. GERBER: Whatever it takes within the
19 legal purview of this state and this county and borough, I
20 will do everything I can to prevent the sale of this home.
21 THE COURT: All right. Fine.
22 MS. MENDELSOHN: And, Your Honor, that is
23 the type of statement that was made, in addition to several
24 others, to the buyers and that is what has made them so
25 afraid to go through with this.
122
1 THE COURT: That is about as close to a
2 threat of --
3 MS. GERBER: It is not a threat.
4 THE COURT: -- of something to do wrong.
5 MS. GERBER: Whatever is legally appropriate
6 in this state and in this county and, under the laws of the
7 state and county of the United States, I will do everything
8 that is afforded to me to prevent the sale of this house.
9 MS. MENDELSOHN: In fact, Your Honor, there
10 were some other statements made that related to the
11 children of the buyers, and this is particularly why they
12
are so concerned.
13 MS. GERBER: That is untrue, Ms. Mendelsohn.
14 THE COURT: Okay.
15 MS. GERBER: Please bring them forward to
16 testify. That is categorically untrue. Bring them
17 forward. Bring them forward.
18 THE COURT: We are in recess.
19 (Whereupon, the proceeding was
20 concluded at 12:30 p.m.)
21
22
23
24
25
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2
3
4 CERTIFICATION
5 I hereby certify that the proceedings are
6 contained fully and accurately in the notes taken by me on
7 the above cause, and that this is a correct transcript of
8 same.
9
10
~r~ Ti ~arley,---~
12 Official Court Rep~ter
13
14
15
16
17
18 The foregoing record of the proceedings on
19 the hearing of the within matter is hereby approved and
20 directed to be filed.
21
Date Geor
24
Ninth Judicial District
25
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