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HomeMy WebLinkAbout03-14-03IN RE: : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA APPOINTMENT OF A : GUARDIAN OF THE PERSON OF : ORPHANS* COURT DIVISION MILDRED J. GERBER, : an alleged incapacitated person : : NO. 21-01-92 RESPONDENT'S SUPPLEMENTAL MEMORANDUM TO LEGAL MEMORANDUM AND NOW, Frederick E. Gerber, II, Respondent, Guardian of the Person of Mildred J. Gerber, an incapacitated person, now deceased, who comes through his attorneys, Rupp and Meikle and Richard C. Rupp, and files this Supplemental Memorandum as follows: Statement of Case On or about December 2001, this Honorable Court appointed Frederick E. Gerber, II, the plenary guardian of the person of Mildred J. Gerber, an incapacitated person. Previously, the Honorable Court appointed PNC Bank as guardian of the estate of Mildred J. Gerber. After hearing, this Honorable Court on March 25, 2002, issued an Order that ordered the personal guardian of Mildred J. Gerber to allow access visits with her daughter, Marilyn Gerber. As a footnote to this Court's March 25, 2002 Order, the Court stated: "Having appointed a personal and estate guardian for Mildred J. Gerber, we are satisfied, at this point, that the visitation herein ordered can be conducted in a manner that is not contrary to the best interest of Mildred J. Gerber" (Footnote I to Court's Order) The Court implicitly stated that the Guardian shall have the duty and discretion to protect the "best interest" of Mildred J. Gerber as a qualifying condition of its Order. Otherwise, why did the Court insert this footnote in its Order? The footnote also reconfirms the personal guardian's duty to protect his ward in accordance with the Pennsylvania Probate and Estates and Fiduciaries' Code, 20 Pa. C.S.A. 5511 et. seq. On or about July 9, 2002, the Petitioner filed a Petition for Review Hearing alleging certain facts and certain circumstances regarding the conduct of visitations with the Petitioner's mother. Said Petitioner's Petition for Review Hearing was deferred pending Petitioner's Appeal to the Pennsylvania Superior Court. On July 24, 2002, Respondent, the guardian of the person, filed a Motion for Temporary Suspension of Access Visits with Marilyn Gerber by reason of the medical opinion of a board-certified psychiatrist who had been treating Mildred J. Gerber. On July 29, 2002, the Court denied Respondent's Motion without hearing. In September 2002, Petitioner filed this Honorable Court's Order of record in the Illinois court. On October 11, 2002, Petitioner sought and obtained an EX-PARTE Order which expanded and modified this Court's Order. The Du Page County, Illinois Order added "no interference, no supervision, no interruption" to this Court's Order. Petitioner disagreed with how the personal guardian was operating and arranging the visits with her mother and instead of seeking relief in this Honorable Court, sought relief in the Du Page County, Illinois, Court. On October 29, 2002, the Respondent and the Sunrise Assisted Living Center joined together to obtain an Order quashing the October 11, 2002 Du Page County, Illinois, Order and that Court ordered a temporary interruption to the visits by reason of Marilyn's conduct. By reason of this defeat in the Illinois court, the Petitioner, Marilyn Gerber, proceeded with a "two front approach" filing this Petition on December 12, 2002 and filing a Petition in the Du Page County, Illinois, Court 2 also in December. The Du Page County, Illinois, Court denied Marilyn Gerber's Petition and instead scheduled a January 2003 hearing. The Cumberland County, Pennsylvania, Court set up a February 6, 2003 Rule to Show Cause hearing. On January 14, 2002 Mildred J. Gerber died. The Rule to Show Cause hearing occurred on February 6, 2003 in Cumberland County, Pennsylvania. The Du Page County, Illinois, Court finally denied permanently access visits with Marilyn Gerber with her mother on January 9, 2003, after hearing. The Cumberland County, PA Court held a hearing on Rule to Show Cause why Respondent-Guardian should not be held in contempt on February 6, 2003. Issue I Do the allegations in Petitioner's Petition filed December 12, 2002 constitute allegations of civil contempt? Suggested answer: Affirmative Issue 2 If the allegations of contempt constitute civil contempt, are said allegations now moot? Suggested answer: Affirmative Issue 3 3 In the alternative, if the allegations for civil contempt are not moot, has the Petitioner proven said allegations? Suggested answer: Negative Issue 4 If Petitioner's allegations against Respondent constitute indirect criminal contempt, has Petitioner proven said allegations beyond a reasonable doubt? Suggested answer: Negative Issue 5 If the Court finds that the conduct of the Respondent constitutes civil contempt, has the Petitioner proven her damages? Suggested answer: Negative Issue 6 Are the damages for indirect criminal contempt a fine in the sum of $100.00 per offense? Suggested answer: Affirmative Issue 7 4 Are the issues raised by Petitioner now collaterally estopped or prevented by res judicata by reason of the Petitioner's proceeding within the Du Page County, Illinois, Court? Suggested answer: Affirmative Argument Issue I Do the allegations in Petitioner's Petition filed December 12, 2002 constitute allegations of civil contempt? Suggested answer: Affirmative In order for a Court to find that there has been a civil contempt for failure to comply with the Court's Order, the Order must be definite, clear, specific and leaves no doubt or uncertainty in the mind of the person to whom it is addressed. Com. V. Garrison, 478 Pa 356, 386 A. 2d 971, (Pa, ~978). This Court's Order permitted and directed visitations by Marilyn Gerber with her mother Mildred J. Gerber consisting of four continuous hours each week when Marilyn Gerber can arrange to be where her mother is located. The Petitioner Marilyn Gerber to interprets this Order to mean that she can pick whatever day and whatever four continuous hours she wishes to visit her mother without exception and she bases her Petition for contempt on this interpretation of the Order. She ignores the Court's footnote in the Court's visitation Order that the visitation be conducted in a 5 manner not contrary to the best interests of Mildred J. Gerber. Petitioner complains there were restrictions placed upon visitations and restrictions placed upon the availability of Mildred J. Gerber contrary to the Court's Order. Restrictions such as no weekends, no holidays no Tuesdays no Thursdays and requested advance notice. These restrictions and requests were made for the best interests of the ward because of the duty of the Guardian arising from Pennsylvania statutory law to act in the best interest of the ward and to follow the ward's wishes wherever possible. 20 Pa. C.S.A. 5521 (a). Even if the Petitioner's restrictive reading of the Order were adopted, the Order must be modified by reason of the statutory duty of the Guardian as stated. The Guardian followed the opinion of the ward's doctor in arranging the visits so the visits would not conflict with the ward's therapeutic time at an adult daycare center which benefitted Alzheimer's patients. Advance notice was necessary to arrange a geriatric social worker to conduct the visit for Mildred's best interest to be present at the visits because of the past actions of Marilyn harassing her mother which actions are more fully set forth in the Motion for Summary Judgment filed previously in this matter. Therefore, what the Petitioner calls a violation is actually the Guardian balancing the conflicting interests of complying with the Order and his duties to protect the ward and serve her best interests. Such conduct is not a violation when the statutory duties of the Guardian are considered and applied. 6 The Petitioner now wishes to have the Court strictly interpret the Order in her favor but it is apparent from the action she brought in DuPage County Illinois Court to enforce and modify this Court's Order that she felt the Court's Order was deficient in its terms and asked the DuPage County Court to make it more specific which it did in an ex parte proceeding. Prior to October 2003, both parties sought review of this Court's Order in July 2003. The Guardian agonized about following the DuPage County Court Order because no social worker could be present at the time of the visit with her mother. The Guardian followed the Du Page County Court's Order explicitly. The Guardian's worst fears were realized and the Guardian joined with the Home to revoke the prior Du Page County Court Order which Order was revoked because of Marilyn's conduct. The restrictions which the Guardian merely requested on the visits were made to carry out the Guardian's duties under the statutory law. The Guardian had no intent to willfully to violate the Court's Order. The Guardian did not willfully violate this Court's Order. The Ward expressed to the Guardian and others that she did not want Marilyn to visit with her and she complained the visits were too long and tiring. In addition Marilyn complained it was a violation of the Court's Order to remove Mildred from New Cumberland to her other's daughter's residence in Chicago, III. The Order cannot be so interpreted. The Ward was removed for the ward's own benefit. Not to serve any private or personal purpose of the Guardian nor to interfere with the right of Marilyn to visit her mother. 7 If there was any violation of the Court's Order by the Guardian it was in good faith by the Guardian in attempting to carry out his statutory duties to the ward and his interpretation of the Court's Order. It was in no way a wilful violation of the Court's Order. Marilyn claims she has incurred expenses and legal fees in attempting to enforce her rights under the Court Order but she only gives only amounts and no detail whatsoever. Petitioner Marilyn Gerber seeks legal fees which cover the entire period from apparently before March 25, 2002 until and including Marilyn seeks relief in Illinois. In addition, the only provision of expenses are her own write up - with no backup - and no expenses specifically related to specific alleged violations of the Order. She should not be entitled to any expenses nor legal fees because there was no violation of the Court's Order considering the duties of the Guardian. Therefore, no expenses or legal fees should be awarded to Petitioner. In determining whether conduct could constitute civil contempt or criminal contempt, the Courts are directed to look at the dominant or primary purpose of the conduct and the remedy. If the dominant purpose of the remedy is to correct a situation for a private party, then such alleged contempt is civil in nature. If however, the dominant or primary purpose of the remedy is to uphold the dignity of the Court, then the dominant or primary purpose of the alleged contempt is criminal in nature. Kramer v. Kelly, 265 Pa. Super, 401 A.2d 799 (1979), Knause v. Knause, 387 Pa. 370, 127 A.2d 669 (1956) Woods v. Dunlap, 461 Pa. 35, 334 A.2d 619 (Pa. 1975~). It is believed by the Respondent that the contempt has always been 8 civil in nature as the dominant purpose was to correct alleged violations by Petitioner with respect to the conduct of access visits between Petitioner and her mother, an incapacitated person. By the test factors established by the Pennsylvania Supreme Court in Knaus v. Knaus, supra, 387 Pa at 378, 127 A.2d at 673, the dominant purpose of this proceeding should be to consider civil contempt. The Respondent hereby incorporates its prior Legal Memorandum by reference and also incorporates by reference its Motion for Summary Judgment and its Brief in Support of Motion for Summary Judgment. By way of further matter, the Pennsylvania Supreme Court case in School District of Pittsburqh v. Pittsburgh Federation of Teachers Local 400. American Federation of Teachers AFL CLO is almost on point with our case. There was contempt alleged for teachers not obeying a Court Order to return to school the next scheduled school day. There was an imposition by the Court of fines but the strike was soon settled. The Court found that the contempt was civil in nature. School District of Pittsburgh v. Pittsburqh Federation of Teachers Local 400, American Federation of Teachers AFL Cio, 406 A.2d 324, 486 Pa. 365 (Pa. 1979). In summary, the Respondent therefore argues the allegations in Petitioner's Petition filed December 12, 2002 constitute allegations of civil contempt. Issue 2 If the allegations of contempt constitute civil contempt, are said 9 allegations now moot? Suggested answer: Affirmative The Respondent argues that by reason of Mildred J. Gerber's death, the allegations of civil contempt are now moot. Diamond v. Diamond, 715 A 2d. 1190, 1194 ( Pa Super, 1998). The Respondent hereby incorporates its Legal Memorandum, Motion for Summary Judgment and Brief in Support of Motion for Summary Judgment. Issue 3 In the alternative, if the allegations for civil contempt are not moot, has the Petitioner proven said allegations? Suggested answer: Negative The Petitioner at the February 6, 2003 hearing on Rule to Show Cause on why Respondent should not be held in contempt, testified that it was difficult to work with the Guardian of the Person of her mother, and that things were difficult to arrange and that times were difficult to arrange. The Respondent testified that it was actually the Petitioner who complained of her mother's lethargy and sleepiness. The Guardian responded that it would be better for their mother if the visits occurred at 10:00 a.m. when their mother, an Alzheimer's / dementia patient, is much more alert, awake and able to handle such visits, which he requested. When Petitioner refused to go with the earlier times, this request was dropped by the Guardian. The Respondent never proved allegations that the Respondent willfully violated the Court's Order in the conduct of the access visits. See also Casello v. 10 Pierce, 447 Pa. 512, 291 A.2d 101 {Pa. 1974). Furthermore, the Pennsylvania Supreme Court has held in Commonwealth, Dept. Of Environmental Resources v. Pennsylvania Power Company, 461 PA 675, 337 A. 2d 823, contempt of court should not be found where the alleged contemnor has made a good faith attempt to comply does not constitute the willful element of contempt. In the instant case, the testimony is replete with examples of the Guardian attempting to comply with the Court Order while balancing competing concerns for his mother's best interests. Further, the real gist of Petitioner's Petition is to achieve an end run on the Du Page Illinois Court's reversal which denied her access visits. Essentially, the action brought in Cumberland County ,PA, was to obtain a second bite at the cherry. See ..Flannery v. Iberti, 763 A 2d. 927 ( Pa, 2000) for similar situation to the instant case. In the instant case, the contempt is a "minimal surplusage" to the attempt to avoid the Illinois Court adverse ruling. Therefore, the elements of civil contempt have not been proven by Petitoner and her claims should be denied. Issue 4 If Petitioner's allegations against Respondent constitute indirect criminal contempt, has Petitioner proven said allegations beyond a reasonable doubt? Suggested answer: Negative Respondent incorporates herein its Legal Memorandum by reference. 11 Further, the Petitioner has alleged only general allegations but none specific except for possibly a few dates in July and September of 2002. Otherwise, the Petitioner's testimony was controverted by the Guardian and the geriatric care worker who was present for nearly all of the visits and the Director of the Sunrise Assisted Living Center. Therefore, the Petitioner's allegations have not been proven beyond a reasonable doubt. The Guardian testified, with other witnesses, how he worked to accomodate the court ordered access visits while balancing a stance protecting his mother. The comparison of the allowed number of visits with the few complained of illustrates the Guardian's good faith attempt to comply. And, with respect to the visits complained of by Petitioner, she really has no argument for violation nor contempt. No willful violation by the Guardian has been proven beyond a reasonable doubt. Specifically with respect to the dates in her Petition, the Petitioner herself admitted that the October date never occurred as there was no access visit requested for October 8th. Both parties admitted that there was hardly any notice before the Labor Day weekend for a requested September 3 visit. The Guardian testified that he never received the request for the September 4 visit and the July visits were explained that the July 10 visit was agreed to and allowed but the Petitioner failed to show up and the July 26 visit was cancelled based on a medical opinion for Mrs. Gerber. Therefore, the Petitioner has failed to prove any criminal contempt allegations beyond a reasonable doubt. 12 Issue 5 If the Court finds that the conduct of the Respondent constitutes civil contempt, has the Petitioner proven her damages? Suggested answer: Negative With respect to civil contempt, the Petitioner has asked for damages totaling almost $22,000. However, there are no specific violations tied to actual dollars or losses suffered by the Petitioner in this case. The Petitioner has absolutely not proven any damages or losses related to actual violations of the Court's Order. By way of further answer, the Guardian was subject to inconsistent duties as Guardian of the Person. Even the Court Order referenced the "best interests" of the incapacitated person were to be taken into consideration. The Court in issuing its Order which is alleged to have been violated strongly implied that the ultimate test for the Guardian is still the incapacitated person's" best interests". Footnote to March 25, 2002 Order. 13 Issue 6 Are the damages for indirect criminal contempt a fine in the sum of $100.00 per offense? Suggested answer: Affirmative Respondent argues that any damages, if any, if proven beyond a reasonable doubt, for indirect criminal contempt, would be the maximum fine of $100.00 per offense. Respondent incorporates its Legal Memorandum filed in this case by reference. Issue 7 Are the issues raised by Petitioner now collaterally estopped or prevented by res judicata by reason of the Petitioner's proceeding within the Du Page County, Illinois, Court? Suggested answer: Affirmative It is believed that the Petitioner's issues for civil or criminal contempt are collaterally estopped or prevented by res judicata by reason of the Petitioner's proceeding in Du Page County, Illinois, Court on the exact same issues, which the Illinois Court resolved. 14 The Respondent hereby incorporates its Motion for Summary Judgment, its Brief in Support of Summary Judgment and its Legal Memorandum filed in this case. RESPECTFULLY SUBMITTED, RUPP AND MEIKLE, By: ~ RiChlard C. Rupp, Esq~Ir~-~ Atty. I. D. No. 34832 355 N. 21st St., Ste. 205 Camp Hill, PA 17011 717-761-3459 Attorneys for Respondent 15 CERTIFICATE OF SERVICE AND NOW, this ! ~'~ day of March, 2003, I hereby certify that I have served a copy of the within document on the following by depositing a true and correct copy of the same in the U. S. Mail at Harrisburg, Pennsylvania, postage prepaid, addressed to: Amy J. Mendelsohn, Esquire Rhoads & Sinon One South Market Square, 12th Floor P. O. Box 1146 Harrisburg, PA 17108-1146 Jaqueline M. Verney, Esquire 44 South Hanover Street Carlisle, PA 17013 Stanley J. A. Laskowski, Esquire Caldwell & Kearns 3631 N. Front St. Harrisburg, PA 17110 Ms. Jane N. Heflin 270 North Garfield Lombard, IL 60148 ... Ricl~ard C. Rupp, ~squire t~-' ,, I. S~ATE MEN~_.QF_ JUBtSDJCIIQN This is an appeal from the final Order of the Court of Common Pleas of Cumberland County, dated December 16,2003. This court has jurisdiction over this appeal pursuant to 42 Pa. C.S. 742,42 Pa. C.S. 5105 and RedevelopmentS_ Cambria Co.v. International Ins. Co~ 685 A.2d (Pa. Super. 1996), appeal denied 548 Pa., 695 A.2d 787 (1997). Il. ST~ EN_T_ QF The decision by the Guardian to sell property of the ward is within the discretion of the trial court and the review of such decision is confined to whether the trial court has committed an abuse of discretion. ~ 437 Pa. Super. 187,649 A.2d 719 (1994). An abuse of discretion exists when the "trial court has rendered a judgment that is manifestly unresonably, arbitrary or capricious, has fialed to apply the law, or was motivated by partiality,prejudice, bias or ill will." ~749 A.2d 497,506 (Pa Super. 2001). Such discretion must be exercised on the foundation of reason and where the record adequately supports the trial court's factual basis, the court does not abuse its discretion. Coker v. S.M. Flickinger Co.; 533 Pa. 441,625 A.2d 1181 (1993). III. C)I~DEB_IN_QUES~C)N AND NOW, this 16th day of December,2002, upon consideration of the Petition to Sell Real Estate at Private Sale Pursuant to 20 Pa. C.S.A. 5521 (b) filed by PNC Bank,N.A., Guardian of the Estate of Mildred J. Gerber, written notice of such, including a copy of such Petition, having been given to the Frederick E. Gerber, Ill, the Guardian of the Person of Mildred J. Gerber, and to the following next of kin, Marilyn J. Gerber and Jane N. Heflin, it is hereby ORDERED and DECREED that the sale of real estate with improvements situate in New Cumberland Borough, Cumberland County, Pennsylvania, known and numbered as 623 Hilltop Drive, New Cumberland Borough Cumberland County, Pennsylvania under the terms of the Agreement of Sale dated November 6, 2002, by and between PNC Bank, N.A., as Guardian of the Estate of Mildred J. Gerber, an Incapacitated Person,and Timothy C. Losh and Joy M. Losh husband and wife is hereby approved. BY THE COURT: /s/George E. Hoffer George E. Hoffer, Presiding Judge IV. STAT_EMEN%QF~_~TJ ~J N VO~ ~ A. WHETHER THE ORDER AND DECREE OF THE SALE OF THE HOME OF THE WARD WAS A VIOLATION OF THE AMERICANS WITH DISABILITIES ACT OF 1990 (ADA),AND THE OLMSTEAD V. L.C. 527 US 581 (1999) THUS PERMANENTLY INSTITUTIONALIZING THE WARD, MILDRED J. GERBER. B. WHETHER THE TRIAL COURT ERRED IN REFUSING THE APPELLANT, MARILYN JO GEBER FROM TESTIFYING; FROM SUBMITTING TESTIMONY OF WITNESSES KNOWN AND IDENTIFIED; FROM SUBMI~-~ING SPECIFIC DOCUMENTS IN DEFENSE AND SUPPORT OF HER OPPOSITION TO THE SALE OF THE HOME OF THE WARD, MILDRED J. GERBER, THUS DENYING THE RIGHT OF THE APPELLANT OF DUE PROCESS PURSUANT TO CODE OF CIVILITY, 4 AND 10. C. WHETHER THE TRIAL COURT ERRED IN REFUSING THE APPELLANT TO CROSS EXAMINE WITNESSES IN SUPPORT OF HER OPPOSITION TO THE SALE FO THE HOME OF THE WARD, MILDRED J. GERBER, THUS DEYNING THE APPELLANT THE RIGHT OF DUE PROCESS PURSUANT TO THE CODE OF CIVILITY, 4 AND 10. D. WHETHER THE TRIAL COURT ERRED IN BEING OPENLY UNDIGNIFIED, IMPATIENT, AND DISCOURTEOUS IN VIOLATION OF THE RULES OF JUDICIAL GOVERNANCE RULE 5 (3),(4) AND CODE OF ClVlLITY,I. 2,6. E. WHETHER THE TRIAL COURT ERRED IN NOT CONSIDERING THE BEST INTERESTS OF MILDRED J. GERBER IN ORDERING THE SALE OF HER HOME PURSUANT TO PA 20 C.S.A. SECTION 5521. ., F. WHETHER THE TRIAL COURT ERRED IN FAIUNG TO DETERMINE IF THE SALE OF THE WARD'S HOME WAS NECESARY AND FAILED TO CONSIDER OTHER FEASIBLE ALTERNATIVES TO THE SALE OF THE WARD'S HOME PURSUANT TO PA 20 C.S.A. SECTION 5521 AND 5522. G. WHETHER THE TRIAL COURT ERRED TO CONSIDER TWO PRIOR REQUESTS FOR A GUARDIANSHIP REVIEW HEARING OF THE ACTIVlTES AND ACTIONS OF THE GUARDIAN, FREDERICK E. GERBER, II THAT WERE FILED WITH THIS COURT AND WERE PENDING PURSUANT TO PA 20 C.S.A. SECTION 5521. H. WHETHER THE TRIAL COURT ERRED IN NOT HEARING THREE PETITIONS THAT WERE FILED IN THIS COURT AND REMAINED UNHEARD IN THIS COURT PRIOR TO THIS COURT'S RULING TO SELL THE WARD'S HOME. i I. WHETHER THE TRIAL COURT ERRED IN NOT CONSIDERING THE PHYSICAL DISABILITY OF THE JUDICIAL OFFICER KNOWN AS JUDGE GEORGE E. HOFFER FOR HIS INABILITY TO HEAR DURING THE COURT PROCEEDINGS PURSUANT TO JUDICIAL CONDUCT BOARD RULES OF PROCEDURES, CHAPTER 10 RULE 32,33,34. V. S_TAT~EMF_bIT_ O_ET HE -CAS E On November 8,2002, a Petition to Sell Real Estate at Private Sale of the home of Mildred J Gerber, an incapacitated person, was filed by PNC Bank, her guardian of estate, pursuant to 20 PA C.S.A. 5521 (b). A certificate of service was served on November 8,2002 to Richard C Rupp, Esquire, Jane N. Heflin as stated on PNC Bank's certificate of service, dated November 8,2002. However, Stanley J. A. Laskowski, Esquire and Marilyn Jo Gerber were not served at stated on the Certificate of Service. This was pointed out to PNC's attorney, Ms A.J. Mendelsohn, by Marilyn Jo Gerber on November 27,2002 when during a status hearing concerning a hearing of the exemptions to accounting before Judge George E. Hoffer, it was discovered that PNC Bank had filed the above mentioned Petition to Sell Real Estate at Private Sale of Mildred J. Gerber. On December 3,2003, Ms. A.J. Mendelsohn for PNC Bank a new substitute Certificate of Service to the Petition to Sell Real Estate at Private Sale was mailed to Marilyn Jo Gerber and Stanley Laskowski as well as Richard Rupp, and Jane N. Heflin. On this same day, Orphans' Court ORDERED and DECREED a heating be heard on the Petition to Sell Real Estate at Private Sale on December 16,2002 at 9:30 AM in the Court of Judge George E. Hoffer in the Court of Common Pleas, Cumberland County, Pennsylvania. PNC Bank was appointed the Guardian of Estate on or about March 23,2001 by Judge Edgar Bayley in Cumberland County. Frederick E Gerber, II was appointed Guardian of Person on or about March 25,2001 by Judge Edgar Bayley in Cumberland County. Madlyn Jo Gerber is the eldest daughter of Mildred J. Gerber, an incapacitated person and a beneficiary of the Estates of Mildred J. Gerber and her father, Col. Fred E. Gerber,Sr. Mildred J. Gerber, was at the time of the petition, eighty-eight (88) years old and residing Sunrise Assisted Living of Glen Ellyn, Illinois. Her son and guardian of person, had removed Mildred J. Gerber from her home of 33 years at 623 Hilltop Drive, New Cumberland, Pennsylvania 36 hours after he was awarded guardian of person. Frederick E Gerber removed her to his sister's, (Jane N. Heflin) home in Lombard, Illinois on or about December 23,2001. This trip was to be for only a Christmas vacation but Mildred J. Gerber was never returned to her home at 623 Hilltop Drive, New Cumberland,Pennsylvania. On or about August 20,2002, Mildred J Gerber was removed from the home of Jane N. Heflin in Lombard, Illinois to a non skilled facility known as Sunrise Assisted Living of Glen Ellyn, Illinois. On October 1,2002, PNC Bank removed all of the possessions of Mildred J. Gerber from her home at 623 Hilltop Drive, New Cumberland,Pennsylvania and put them in storage at Harrisburg, Pennsylvania. On that same day, Marilyn Jo Gerber was present during this event and made an offer for the sale of the home at 623 Hilltop Drive, New Cumberland,Pennsylvania (R. 2la)and (R. 34a) On October 1,2002, Dave Brown, the administrator for PNC Bank known as the guardian of estate, through cross examination by Marilyn Jo Gerber, admitted that he had no intention to allow her to make an offer or purchase the home at 623 Hilltop Drive, New Cumberland, Pennsylvania. (R 21a-31a). During the cross examination of Dave Brown of PNC Bank by Marilyn Jo Gerber, Judge George Hoffer asked the Appellant to speak up on 5 different times. (R. 16a), R. 18a), (R. 26a), (R.30a), (R.34a). During the hearing, PNC Bank took the position that because the home of Mildred J. Gerber had stood vacate of her presence for eleven (11 ) months, they needed to sell the home as the home was not generating income, subject to vandalism, and theft. (R. 10a, 1 la). Dave Brown also went on to testify as to the value of Mildred J Gerber's value of personal property, value of her Trust, income from pensions, and expenses incurred for the care of Mildred J. Gerber. (R. 11a-14a). Dave Brown also testified upon cross-examination by Marilyn Jo Gerber, that he had known in July 2002, that the Guardian of Person was not going to return Mildred J Gerber to her home in Pennsylvania. (R. 20a). George Clouser, a real estate appraiser hired by PNC Bank to evaluate the property of Mildred J. Gerber, testified that he had evaluated this property no less than three (3) times over the course of five (5) years. (R. 37a, R. 38a, R. 39.) Marilyn Jo Gerber upon cross-examination of George Clouser discovered that Mr. Clouser ,., had examined this property on the day that Col. Fred E. Gerber, Sr had passed away. (R. 39a). Mark Heckman, a second real estate appraiser, also hired by PNC Bank, testified to his appraisal and his findings and arrived at an appraisal of $175,000 for the home at 623 Hilltop Drive, New Cumberland, Pennsylvania. (R. 59a). Tammy Sheaffer, a real estate appraiser testified for Marilyn Jo Gerber and a Residential Appraisal Field Report was submitted to the Court and all the attorneys and the guardian of person. Ms Sheaffer discounted significant appraisal points per the laws of Pennsylvania. (R. 80a. - 87a.). Upon the completion of all of the appraisers, Marilyn Jo Gerber attempted to bring Mr. Phillip Miller to the stand as an expert CPA to comment on the evaluation of the home of Mildred J Gerber and the value of the estate and Trusts of Mildred J. Gerber. Judge Hoffer refused his testimony.(R. 95a.) and (R. 101a). Marilyn Jo Gerber finally tried to admit herself as a witness with testimony on the inappropriateness of selling the home of Mildred J. Gerber as it violated the Americans with Disabilities Act (ADA) of 1990 and the Supreme Court's decision in Olmstead vs. LLL.C., 527 US 581 (1999) which essentially states that an incapacitated person cannot be removed from their home and place in a more restrictive environment and essentially institutionalizing the ward. (R 113a-115). This would vacate the Petition to sell her home as the sale of her home would effectively permanently institutionalize Mildred J. Gerber in a non skilled facility known as Sunrise Assisted Living of Glen Ellyn, Illinois as well as further isolate her from all of her friends, community, her Church and family. Marilyn Jo Gerber throughout her delivery in the Courtroom kept repeatedly asking Judge Hoffer if he did not want to swear her in and Judge Hoffer refused. (R. 102a.), (R. 105a. Marilyn Jo Gerber then attempted to admit a sworn affidavit along with a copy of a supoena for Ms. Millie Scott. which stated Mildred J Gerber's intent and wishes to stay in her home along with her desire to see her daughter, Marilyn Jo Gerber, (R. 111a), (R. 115a). Hoffer refused to admit these documents or hear Marilyn Jo Gerber's testimony. (R. 106a-108a). Marilyn Jo Gerber also asked to call Frederick E Gerber, Il to the witness stand. She offered to Judge Hoffer her cross-examination of Frederick E Gerber's knowledge of Frederick E Gerber,Sr's desire to award the home at 623 Hilltop Drive, New Cumberland, Pennsylvania to Marilyn Jo Gerber on January 16,1998 for $100,000. Marilyn Jo Gerber also had a sworn statement of explanation by her hand and i. certified. Judge Hoffer refused this admission of testimony and the admission of the witness. (R. 109a-11 la). Marilyn Jo Gerber raised to Judge Hoffer that there were financial exemptions being heard in his Courtroom since August 27,2002 by PNC Bank and Marilyn Jo Gerber. (R 113a). Marilyn Jo Gerber continued to raise the issue of several outstanding motions that were in Orphans' Court surrounding petitions for accurate accounting of Mildred J. Gerer's estate and two Trusts along with a Petition to ask PNC Bank to do a cost analysis of her care in Pennsylvania vs Illinois and a Petition for a Stay of the Sale of this home at 623 Hilltop Drive, New Cumberland, Pennsylvania. These motions also were in other judges' courtrooms. Judge Hoffer refused to hear these arguments. (R. 117-118a). VII. ARGUMENT A. THE TRIAL COURT ERRED IN APPROVING THE SALE OF THE ~ HOME OF MILDRED J. GERBER, WARD OF THE GUARDIAN OF ~ ESTATE,KNOWN AS PNC BANK THEREBY VIOLATING THE ~ AMERICANS WITH DISABILITIES ACT OF 1990 (ADA), AND THE !' SUPREME COURT DECISION OF THE OLMSTEAD V. L.C. 527 US 581 (1999) THUS PERMANENTLY INSTITUTIONALIZING MILDRED J. GERBER. In the Americans with Disabilities Act of 1990, (ADA) Congress described the isolation and segregation of individuals with disabilities as a serious and pervasive form of discrimination. The Supreme Court decision of Olmstead v. L.C. 527 US 581 (1999), built upon the promises made in the Americans with Disabilities Act almost a decade earlier which' help that "unjustified isolation: of individuals with disabilities "is properly regarded as discrimination based on disability, as it perpetuates negative stereotypes and severely restricts and infringes abilities." 527 US 581 (1999) at 597. Consequently, states must place individuals in community settings or their own homes rather than in institutions when: The States' treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the state and the needs of others with mental disabilities. Id at 587 The justices also recognized that states must address difficult pulic issues, such as the increased overall expenses, that result from the need to continue operating partially full institutions, while at the same time funding community services at an appropriate level. ID at 604. Justice Ginsburg delivered the opinion of the Court with respect to Parts I, II, and Ill-A, concluding that under Title II of the ADA, States are required to place persons mental disabilities in community settings rather than in institutions when the State's treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities. P. 11 - 18. The ADA both requires all public entities to refrain from discrimination,see 12132, and specifically identifies unjustified "segregation" of persons with disabilities as a "form of discrimination," see 12101 (a)(2), 12101 (a)(5). The identification of unjustified segregation as discrimination reflects two evident judgments: Institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life, cf.,e.g. Allen v. Wright, 468 U.S. 737,755, 82L. Ed. 2d 556,104 S. Ct. 3315; and institutional confinement severely diminishes individuals' everyday life activities. An individual who also is a recipient of Medicaid Home and Community Based care and needs an increase in covered services to either avoid placement in a more restrictive setting or a move to a less restrictive setting even if the increased total cost of services as requested would be less than the costs of a more restrictive alternative falls under the Olmstead Act of 1999. Individuals who are affected are anyone with a physical or mental impairment /.2 that substantially limits one or more major activities; has a record of impairment. An integrated setting is one that enables an individual with disabilities to interact with non disabled persons to the fullest. 28 CFR Section 35130 Olmstead Act (1999). In the case of Mildred J. Gerber who was declared an incapacitated person in March 2001 and was made a ward of PNC Bank, Mildred J. Gerber had lived at her residence at 623 Hilltop Drive, New Cumberland, Pennsylvania since 1968. Mildred J. Gerber had been diagnosed with Alzheimer in 2001 by Dr. Roger Cadieux and had progressed over the years until she required 24 hour care in her home. Mildred J. Gerber was functional with residual cognitive abilities and able to ambulate and participate in community based activities, go to Church, visit with her family. Frederick E. Gerber, II was awarded his Petition for Guardianship of Person in December 2001. He had testified in the proceedings on October 8,2001 and December 19,2001 that his mother, Mildred J Gerber would stay in her 5 bedroom home, receive 24 hour care and be afforded the opportunity to communicate with her friends, Church and community. However despite his testimony under oath, 36 hours after his receiving Guardian of Person, he removed Mildred J. Gerber from her home of 33 years and took her to Lombard, Illinois where she stayed in a small dark room in a single bed and lived with her second daughter, Jane N. Heflin. Mildred J. Gerber was provided with unskilled home care caregivers along with the care by Jane N. Heflin. Ms Heflin's job was in New York City and was frequently in New York leaving Mildred J. Gerber with unskilled homemakers. While the Guardian of Person has discretionary rights to decide the fate of his ward, Frederick E Gerber, il place his mother on August 20,2002 in an unskilled institution called Sunrise Assisted Living of Glen Ellyn, Illinois. This institution no skilled nursing care, no certified nurses' aides, no certified medical personnel to deliver medications or know the sign and symptoms of medications, no nurse on duty on a daily basis. This institution under the law of Illinois is a tenant landlord facility that only "assists" the individual with their care needs. The only care manager on duty was an individual who could not legally write a plan of care as this must be done by a registered nurse. A nurse visited only once a month if that much and the institutions physician, Dr. Lawless came once a month if that much. Records are not kept as to the feeding, medication, physical symptoms, input and output of the resident. Marilyn Jo Gerber through her lawyer, Stanley Laskowski had filed two Petitions for Guardianship Review in the Orphans" Court of Cumberland County; one in July 2002 and one in December 2002. The July Petition was denied by Judge Bayley and the December Petition was signed on December 18,2002 to be heard on February 6,2003. Marilyn Jo Gerber is a registered nurse, a specialist in gerontology and Alzheimer disease and had testified in the Guardianship of Estate and Person in the Orphans' Court of Cumberland County that the safest and most humane setting for her mother, Mildred J. Gerber would be her home. Marilyn Jo Gerber also testified that her mother thrived under her care from 1996 to 1998 and again from January 2000 until January 13,2001. On January 13,2001, Frederick E Gerber took control of Mildred J. Gerber and Mildred J. Gerber was isolated, removed from her friends, her community, her daughter Marilyn Jo Gerber and her Church. /¢ Although PNC Bank is the Guardian of Estate, it is their responsibility to." conserve the ward's estate and to give consideration to his welfare and comfort; the guardian was a mere servant of the Court. IN re McKearney, 51 D.& C. 571,1945. PA 20 C.S.A. 5521. Under section 6 Duties of Guardian,possession of property of the PA 20 C.S.A. 5521, "it was not only the guardian's right, but its duty, to institute and prosecute any litigation, necessary for the protection and maintenance of the property rights of the ward, which reasonable discretion and judgment could justify. Hart v. Feely, 109 F. Supp. 3 D.C. 1953. Therefore, it is only logical to conclude that PNC Bank has the right and responsibility in this case to protect the home of Mildred J. Gerber and file a Petition to return Mildred J. Gerber to her home and community as directed by the ADA and the Supreme Court decision, Olmstead v. L.C. 1999. PNC Bank failed in their duty to protect Mildred J. Gerber and allowed her to be institutionalized at Sunrise Assisted Dying of Glen Ellyn, Illinois and did not declare to the Orphans' Court or to her Guardian of Person, Frederick E. Gerber, II that he was in violation of these above referenced Federal Laws. PNC Bank is a professional institution with all of the resources of caring and managing the properties and estates and trusts of incapacitated persons. It was their fiduciary and legal responsibility in providing Mildred J. Gerber with the least restrictive and most desirable community setting. Failure of the Court to apply 20 Pa. C.S.A. 5521 (6) and the Federal ADA Act of 1990 and the Olmstead Act of 1999 was an abuse of discretion and manifestly unreasonable. Mildred J. Gerber's home should never have been sold prior to the hearing of the outstanding petitions which were addressing these issued in the Orphans' Court of Cumberland, County. B. THE TRIAL COURT ERRED IN REFUSING THE APPELLANT, MARILYN JO GERBER FROM TESTIFYING; FROM SUBMITTING TESTIMONY OF WITNESSES KNOWN AND IDENTIFIED; FROM SUBMITTING SPECIFIC DOCUMENTS IN DEFENSE AND SUPPORT OF HER OPPOSITION TO THE SALE OF THE HOME OF THE WARD, MILDRED J. GERBER, THUS DENYING THE RIGHT OF THE APPELLANT OF DUE PROCESS PURSUANT TO THE CODE OF CIVILITY 4 AND 10. On December 16,2002, the Petition to Sell Real Estate at Private Sale Pursuant to 20 Pa.C.S.A. 5521 was heard before Judge George E Hoffer. During the entire hearing, Judge George E Hoffer refused the Marilyn Jo Gerber from being sworn in despite the Appellant's repeated request to be sworn in so that she could provide testimony of her opposition to the sale of the home of the ward, Mildred J. Gerber. (R. 102a, 11 la, 115a). Judge Hoffer refused to swear her in. On December 16,2002, when Marilyn Jo Gerber attempted to re cross examine the witness as George Clouser, (R.93a, R.94a) and Judge Hoffer refused. On December 16,2002, Marilyn Jo Gerber attempted to enter Mr Phillip Miller as an expert witness, (R. 92a. 96a. 100a) and Judge Hoffer refused. On December 16,2002, Marilyn attempted to enter the sworn affidavit of Mildred Scott along with a copy of a supoena, (R. 106a-108a) and Judge refused. On December 16,2002, Marilyn Jo Gerber attempted to enter a "codicil document and contract" ,(R. 11 la-115a) and Judge Hoffer refused. On December 16,2002, Marilyn Jo Gerber attempted to cross examine, Frederick E. Gerber, Il, (R 110a -115a) and Judge Hoffer refused. On December 16,2002, Marilyn Jo Gerber asked to admit herself for testimony and provide her most important argument of the ADA and the Olmstead Act of 1999, (R. 101a-102a) and Judge Hoffer refused. The Code of Civility of the Pennsylvania Rules of Judicial Procedure under 1. A Judge's Duties to Lawyers and other Judges under section 10, states,"A Judge should allow the lawyers to present proper arguments and to make a complete and accurate record.". The Code of Civility of the Pennsylvania Rules of Judicial Procedure under 1. A Judge's Duties to Lawyers and other Judges under section 4, states,"A Judge should refrain from acting upon or manifesting racial, gender or other bias or prejudice toward any participant in the legal process.". It is clear that during the hearing of this Petition to Sell Property, that Judge George E Hoofer had a clear bias toward the elderly and persons of incapacitation in his negative attitude and stereotyping of Mildred J. Gerber as an incapacitated person. There appears to be an issue of obvious hearing impairment of the Judge himself but also in the Judge's insensitivity to the plight and condition to an elderly and incapacitated person known as Mildred J. Gerber. It is the opinion of this Appellant that due to the fact that Judge Hoffer consistently refused testimony, the admission of documents and affidavits, and testimony that effectively this hearing was null and void and was one sided, therefore, Mildred J. Gerber should never have been sold prior to the right and privilege of a full and fair hearing of the facts. C. THE TRIAL COURT ERRED IN REFUSING THE APPELLANT TO CROSS EXAMINE WITNESSES IN SUPPORT OF HER OPPOSITION TO THE SALE OF THE HOME OF THE WARD, MILDRED J. GERBER, THUS DENYING THE APPELLANT THE RIGHT TO DUE PROCESS PURSUANT TO THE CODE OF CIVILITY, 5 AND 10. This argument has been argued in letter B above and therefore, the Appellant asks this Court to review her argument under Letter A. D. THE TRIAL COURT ERRED IN BEING OPENLY UNDIGNIFIED IMPATIENT, AND DISCOURTEOUS IN VIOLATING THE RULES OF JUDICIAL GOVERNANCE RULE 5,(3),(4) AND CODE OF CIVILITY, (1), (2),(6). The Code of Civility under the Rules of Judicial Procedure for Pennsylvania under I. A Judge's Duties to Lawyers and other Judges, section I, states," A Judge must maintain control of the proceedings and has an obligation to ensure that proceedings are conducted in a civil manneF'. Section 2, states,"A Judge should show respect, courtesy and patience to the lawyers, parties and all participants in the legal process by treating all with civility.". Section 6 states, "A Judge should not employ hostile or demeaning words in opinions or in written or oral communications with lawyers, parties or witnesses. On December 16,2002, Judge Hoffer was openly and consistently throughout the entire hearing demeaning, hostile and insulting bordering on emotional harassment. (R 115a.,116a, R. 120a, R.121a,R 93a,). Judge Hoffer not only had trouble hearing during this hearing of the petition due to his hearing impairment, but he also was openly and deliberately and consistently demeaning as in (R 93a) when spoke to Marilyn Jo Gerber, "Ma'am, shut your mouth while she is talking, and she will be quiet when you are talking.". Judge Hoffer clearly throughout this hearing was courteous only to A.J. Mendelsohn and to Richard Rupp. It is a long established right of the Constitution of the United States for each and every CITIZEN to have the right of the Courts and Due Process. It is also established in the majority of the 50 states of the USA that the Court tries to accommodate a PRO-SE and bend over backwards. This was clearly not the case with Judge Hoffer and the experience was emotionally destruction for Marilyn Jo Gerber in light of the subject and sensitivity of this hearing concerning the welfare and the her beloved Mother. Of note, Mildred J Gerber passed away on January 14,2003 under the most tortuous and cruel manner having been abused and having acquired a community acquired infection. The sale of her home and ultimately her not returning to her beloved home and community was her ultimate demise and death. The Rules Concerning the Conduct of Members of the Court of Judicial Discipline for Rule 3, states,"lntegrity and Independence of the Judiciary, Construction. An independent and honorable judiciary is indispensable to justice in our society. ... a member should participate in establishing, maintaining, and enforcing, and should personally observe high standards of conduct. Rule 4 states, Avoidance of Impropriety and the Appearance of Impropriety states, (A). "A member should respect and comply with the law and should conduct the member;s personal and professional business at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Rule 5 states, O,[artoa; and Diligent Performance of Duties, (3) states,"a member should be patient, dignified, and courteous to litigants,witnesses, lawyers, and others with whom the member deals in his or her official capacity, and should require similar conduct of lawyers, court staff and officials, and others subject to the member's direction and control. These above rules speak for themselves and the Reproduction of the Court record. E. THE TRIAL ERRED IN NOT CONSIDERING THE BEST INTERESTS OF MILDRED J. GERBER IN ORDERING THE SALE OF HER HOME PURSUANT TO PA 20 C.S.A. SECTION 5521. This argument has been argued under Argument, Letter A under the ADA and the Olmstead Act which also referred to PA 20 C.S.A. 5521. Again, it is the argument of this Appellant that PHC Bank as Guardian of Estate of Mildred J. Gerber had the fiduciary responsibility to consider the welfare and finances of their ward. PHC Bank failed to argue the ADA and Olmstead Act of 1999 as well as testify that the estate and the Trusts of Mildred J. Gerber were under Audit and not in a condition to make a life threatening and institutionalizing decision for Mildred J. Gerber. F. THE TRIAL COURT ERRED IN FAILING' TO DETERMINE IF THE SALE OF THE WARD'S HOME WAS NECESSARY AND FAILED TO CONSIDER OTHER FEASIBLE ALTERNATIVES TO THE SALE OF THE WARD'S HOME PURSUANT TO PA 20 C.S.A. SECTION 5521 AND 5522. The Appellant has argued her argument of this letter under Letter A and E. One addition to this argument is that under PA 20 C.S.A. Section 5522, the Guardian of Estate, PHC Bank, failed to consider the duty to generate income for Mildred J. Gerber under this section which states, "a guardian may lease any real or personal property of the incapacitated person for a term not exceeding five years after its execution. This is effect would have allowed the other petitions in the Orphans' court to be heard as well as the Superior Court appeal that was to be heard on heard on February 11,2003 in appealing the decision of granting the Guardianship of Person to Frederick E. Gerber, Il. In preserving the property and generating income for Mildred J. Gerber, PNC Bank would have in essence protected Mildred J. Gerber and afforded her the opportunity of returning to her beloved home and community and thereby avoiding her ultimate forced institutionalization and ultimate demise and death on January 14,2003. G. THE TRIAL ERRED IN NOT CONSIDERING TWO PRIOR REQUESTS FOR A GUARDIANSHIP REVIEW HEARING OF THE ACTIVITIES AND ACTIONS OF THE GUARDIAN, FREDERICK E. GERBER,II,THAT WERE FILED WITH THIS COURT AND WERE PENDING PURSUANT TO PA 20 C.S.A. SECTION 5521. This argument has again been argued in the above letters especially under Letter A and Letter F. Judge Bayley had refused to hear a Guardianship Petition for Review in July, 2002 submitted by Stanley Laskowski on behalf of this Appellant. Judge Bayley again agreed to hear the second Petition for Guardianship Review on December 18,2002 which was submitted prior to the December 16,2002 hearing. This Court was well aware of the multiple hearings and drama as four out of the five Judges had heard motions and petitions in the Orphans' Court since 1998 until the present. H. THIS COURT ERRED IN NOT HEARING THREE PETITIONS THAT WERE FILED IN THIS COURT AND REMAINED UNHEARD IN THIS COURT PRIOR TO THIS COURT'S RULING TO SELL THE WARD'S HOME. This Appellant had three outstanding petitions before the Orphans' Court dating back to October 2002 which had not been heard before this December 16,2002 hearing. One Motion was entitled, "Application for Stay of Sale of Mildred J. Gerber, House 623 Hilltop Drive, New Cumberland, Pennsylvania Currently Under Guardianship of Estate by PNC Bank in Accordance With Federal Regulation; American Disability Act, Older American Act, Olmstead ACt, and The Elder Justice Act, and the Elder Justice Act of 2002, S.B. 2933". The second motion was a Petition entitled, "Motion to Request the Guardian of Estate PNC Bank to Produce a Cost Analysis of Home care of Mildred J. Gerber in Her Home in New Cumberland and Car in Lombard Illinois and at Sunrise Assisted Living in Glen Ellyn, Illinois Including All Expenses.". The third petition was entitled, "Petition to Cite Guardian of Estate, PNC Bank to file an Accounting of Administration, an Accurate Inventory and an Accurate Annual Report." It is clear and obvious to this Appellant that if these three Petitions/Motion had been heard before the Orphans' Court in a timely and orderly fashion, that evidence would have been revealed and produced that would more than likely had caused PNC Bank to be surcharged, possibly removed a Guardian of Estate and ultimately have returned Mildred J Gerber to her beloved home and community if not on the shear fact of monetary savings. I. THIS TRIAL ERRED IN NOT CONSIDERING THE PHYSICAL DISABILITY OF THE JUDICIAL OFFICER KNOWS AS JUDGE GEORGE E. HOFFER FOR HIS INABILITY TO HEAR DURING THE COURT PROCEEDINGS PURSUANT TO JUDICIAL CONDUCT BOARD RULES OF PROCEDURES, CHAPTER 10 RULE 32,33,34. Chapter 10. Special Procedures for Cases Involving Mental or Physical Disability, Rule 32, states,"in any case in which the allegations involve a Judicial Officer's mental disability, the Board may petition the Court to appoint a lawyer to to represent the Judicial Officer if the Judicial Officer is without representation.". Rule 33. Examinations: states," The Board may require a physical, psychiatric, or psychological examination of the Judicial Officer, and may appoint one or more professionals to make an examination and prepare a report, a copy of which shall be given to the Judicial Officer. The Judicial Officer's unjustified failure to submit to a physical, psychiatric, k or psychological examination required by the Board may be considered as evidence of physical or mental disability.". Rule 34 states," (A) IF the Board finds probable cause to file a Board Complaint alleging mental or physical disability, the Board shall promptly notify the Judicial Officer and provide the Judicial Officer with an opportunity to resign from judicial office or, when appropriate, to enter a rehabilitation program acceptable to the Board prior to the filling of the Board Complaint. During the hearing of this Petition on December 16,2002, Judge George E Hoffer on no less than 8 times, asked the Appellant or the other lawyers or witnesses to, "speak up". The Appellant is a registered nurse and it is with the greatest of respect that this Appellant strongly suggests that Judge George E Hoffer submit to a hearing test and physical examination in order to determine if the rights and privileges of Mildred J. Gerber were not violated due to the fact that Judge Hoffer could not hear and understand the majority of the proceedings. CONCLUSION Based upon the foregoing arguments, authorities and records submitted before the Cour~ it is submitted that a judgment has been rendered the trial court which is unreasonable, arbitrary and capricious, and failed to comply with the requirements of 20 PA C.S.A. 5512,5521,5522 et seq. in the order to sell the property of Mildred J. Gerber, an incapacitated person. This order by this trial court effectively violated the Federal Americans with Disability Act of 1990 and the Supreme Court decision of the Olmstead v. L.C. Act of 1999 which effectively permanently institutionalized the ward of PNC Bank thereby putting Mildred J Gerber in grave danger, emotional distress and ultimately resulted in her demise due to her death on January 14,2003. IN RE: ESTATE OF IN THE COURT OF COMMON PLEAS MILDRED J. GERBER CUMBERLAND COUNTY, PENNSYLVANIA An Alleged Incapacitated Person NO. 21-01-92 ORPHANS' COURT PA. RAP 1925 CONCISE STATEMENT OF MATTERS ~ COMPLAINED UPON APPEAL ~-' AND NOW comes, Marilyn Jo Gerber, the plaintiff and appellant in Pennsylv~ia Superior Court, this 28th day, of March, 2003, the within statements as ordered by the Honorable Judge Hoffer. This statement is the action of the above Plaintiff in the Court of Common Pleas in the Cumberland County Court from an action that heard on December 16,2002 by the Honorable Judge Hoffer to decide if the Guardian of Person, PNC Bank, could sell the real estate home of Mildred J. Gerber, an alleged incapacitated person. On this day, Marilyn Jo Gerber opposed the sale of this property largely due to the f~et that the sale of this °roDertv would 13ermanently institutionalize, the incapacitated