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HomeMy WebLinkAbout04-11-03IN RE: IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA APPOINTMENT OF A GUARDIAN OF THE PERSON OF MILDRED J. GERBER, ORPHANS' COURT DIVISION an alleged incapacitated person NO. 21-01-92 MOTION TO VACATE NOTICE OF DEPOSITION AND NOW, comes Marilyn Jo Gerber by and through her counsel, Caldwell & Kearns, P.C., makes the following request to vacate the Notice of Deposition issued by Respondent, of Frederick E. Gerber, II, averring in support thereof as follows: 1. Petitioner is Marilyn Jo Gerber, daughter of Mildred J. Gerber, alleged incapacitated person, now deceased. 2. Respondent is Frederick E. Gerber, II, by and through his counsel, Richard C. Rupp, Esquire, son of Mildred J. Gerber, alleged incapacitated person, now deceased. 3. On April 1,2003, an Opinion and Order of the Court was issued making the Rule to Show Cause Absolute in this matter, issuing an attachment on a Citation for Civil Contempt against Frederick E. Gerber, II, and setting a hearing to be conducted and an adjudication to be held on April 23, 2003; said Order being of record in this matter is incorporated herein by reference. 4. On or about April 4, 2003, Respondent Frederick E. Gerber, II, filed a Motion for Continuance of the April 23, 2003, hearing purportedly for purposes of discovery to which Marilyn Jo Gerber has contemporaneously with the filing of this Motion filed an answer thereto. A true and correct copy of said Answer is attached hereto marked as Exhibit "A", and incorporated herein by reference. 5. On April 7, 2003, Respondent Frederick E. Gerber, IFs counsel, by facsimile and regular U.S. Mail, issued a Notice of Deposition to Marilyn Jo Gerber, for her deposition to be conducted at the Cumberland County Courthouse in the Office of the Register of Wills on April 17, 2003, commencing at 10:00 a.m. A true and correct copy of Respondent and counsel's Notice of Deposition is attached hereto marked as Exhibit "B" and incorporated herein by reference. 6. Prior to the February 6, 2003 Court hearing, Respondent, Frederick E. Gerber, II, conducted discovery by Interrogatories and Requests for Production of Documents, to which a response was made by Petitioner. 7. Substantial testimony and documentation was provided at the February 6, 2003, hearing as to both the basis for Petitioner's request for finding of contempt against Frederick E. Gerber, II, as well as expenses and special damages that had been incurred. 8. Substantial cross-examination of Petitioner was afforded to Respondent Frederick E. Gerber, II, by and through his counsel, as to the basis for the request for finding of contempt, expenses and damages, all occurring at the February 6, 2003, hearing, and the record of matter was then closed. 9. Petitioner, has not received otherwise sufficient or timely notice of said deposition for purposes of preparation, and Petitioner is acquired to attend; deposition 2 has been noticed without prior consultation with Petitioner and her counsel, and Petitioner is unavailable due to employment commitments. 10. Petitioner objects to the Notice of Deposition issued by Respondent, Frederick E. Gerber, II, as unnecessary, duplicitous, unreasonable, oppressive and burdensome pursuant to Pa. R.C.P. 4011, resulting in additional expense, loss of wages and counsel fees to Petitioner. WHEREFORE, Petitioner, Marilyn Jo Gerber requests that the Notice of Deposition issued on April 7, 2003, by Respondent, Frederick E. Gerber, II, by and through his counsel, Richard C. Rupp, Esquire, be vacated and compliance thereby by Petitioner shall not be required. Respectfully submitted, Date: /,/"~'o- .,~ By: ~~" Stanley J. AV,_a'skowski, Esquire Attorney I. D'. # 37422 Caldwell & Kearns, P.C. 3631 North Front Street Harrisburg, PA 17110-1533 (717) 232-7661 Attorney for Marilyn Jo Gerber 55356 VERIFICATION I, Marilyn Jo Gerber, verify that the averments made in this document are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating to unsworn falsification to authorities. Date: .'¢vla rily~ 0 ~t~be~ 01607/55355 V ,LI~IHX~I IN RE: IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA APPOINTMENT OF A GUARDIAN OF THE PERSON OF MILDRED J. GERBER, ORPHANS' COURT DIVISION an alleged incapacitated person NO. 21-01-92 RESPONDENT MARILYN JO GERBER'S ANSWER TO MOTION FOR CONTINUANCE AND NOW comes Marilyn Jo Gerber by and through her counsel, Caldwell & Kearns, P.C., makes the following response to Motion for Continuance of Richard C. Rupp, Esquire and Frederick E. Gerber, I1: 1. Admitted. 2. Admitted. 3. Admitted in part and denied in part. It is admitted only that an Order was entered April 1,2003, which Opinion and Order speaks for itself. The remainder of the allegation is denied in that the copy of the Motion served upon Respondent, Marilyn Jo Gerber, contained no exhibits or attachments. 4. Denied. Prior to the February 6, 2003, Court hearing Movant conducted discovery by Interrogatories and Request for Production of Documents, to which Respondent replied. A true and correct copy of Movant's Interrogatories and Request for Production of Documents are attached hereto marked as Exhibit "A". Substantial testimony and documentation was provided at the February 6, 2003, hearing as to both the basis for the contemptuous conduct of Frederick E. Gerber, II, with regard to the Petition that was filed and the expenses and damages that were incurred by Petitioner, Marilyn Jo Gerber. Cross-examination by Movant as to Petitioner's expenses and damages as well as the substantive basis for contempt was afforded and conducted at the February 6, 2003, hearing and the record in the matter was then closed. 5. Admitted in part and denied in part. It is admitted only that Movant on or about April 7, 2003, issued a Notice of Deposition to Marilyn Jo Gerber, to which Petitioner objects as unnecessary, unreasonable, oppressive and burdensome pursuant to Pa. R.C.P. No. 4011. The remainder of Movant's allegation is denied, see Respondent's reply to paragraph four (4) hereof which is incorporated herein by reference, 6. Denied. See Respondent's reply to paragraph four (4) hereof which is incorporated herein by reference. 7. Admitted. WHEREFORE, Respondent, Marilyn Jo Gerber, requests that the Motion for Continuance for Frederick E. Gerber, II, and Richard C. Rupp, Esquire, be denied. Respectfully submitted, Stanley J. ~.,~skowski, Esquire Attorney I. D. # 37422 Caldwell & Kearns, P.C. 3631 North Front Street Harrisburg, PA 17110-1533 (717) 232-7661 Attorney for Marilyn Jo Gerber 2 CERTIFICATE OF SERVICE AND NOW, this /'0Z~ day of April, 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: Richard C. Rupp, Esquire Rupp and Meikle 355 North 21st Street, Suite 205 Camp Hill, PA 17011 CALDWELL & KEARNS VERIFICATION I, Marilyn Jo Gerber, verify that the averments made in this document are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating to unsworn falsification to authorities. 01607/55355 4 fl &IfllHX~I IN RE: : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA APPOINTMENT OF A : GUARDIAN OF THE PERSON OF : ORPHANS* COURT DIVISION MILDRED J. GERBER, : an alleged incapacitated person : NO. 21-01-92 NOTICE OF DEPOSITION To: Marilyn J. Gerber c/o Stanley J. A. Laskowski, Esquire Caldwell & Kearns 3631 N. Front St. Harrisburg, PA 17110 PLEASE TAKE NOTICE that Richard C. Rupp, Esquire, will take the deposition of Marilyn J. Gerber, upon oral examination, for the purposes of use at trial in the above case, before a Notary Public or other person authorized to administer oaths, on all matters not privileged which are relevant and material to the issues and subject matter involved in the above action. The deposition will take place at: Cumberland County Courthouse Office of the Register of Wills One Courthouse Square, Carlisle, PA, ON THE 17TM DAY OF APRIL, 2003, AT 10:00 A.M. The above-named deponent is requested at the aforesaid time and place and submit to examination under oath. PLEASE BRING WITH YOU COPIES OF ALL AIRLINE TICKET CHARGES / INVOICES / RECEIPTS, ALL HOTEL BILLS / INVOICES / RECEIPTS, AND ALL PARKING BILLS / INVOICES / RECEIPTS FROM MARCH 25, 2002 THROUGH OCTOBER 31, 2002; AND COPIES OF ALL OTHER DOCUMENTS YOU CLAIM RELATE TO INCIDENTS TO INCIDENCES OF CIVIL CONTEMPT COMMITTED AGAINST YOU BY RESPONDENT, COL. FREDERICK E. GERBER, II, AND COPIES OF ALL OTHER DOCUMENTS, CHARGES, COSTS, EXPENSES, OF WHATEVER KIND AND OF WHATEVER NATURE INCURRED BY YOU, WHICH YOU CLAIM ARE CAUSED BY INCIDENCES OF CIVIL CONTEMPT COMMITTED AGAINST YOU BY RESPONDENT, COL. FREDERICK E. GERBER, II. Attorney I. D. No. 34832 355 N. 21st St., Ste. 205 Camp Hill, PA 17011 l / 717-761-3459 Date: 2 CERTIFICATE OF SERVICF AND NOW, this. '~ ~day of April, 2003,1 hereby certify that l 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: Stanley J. A. Laskowski, Esquire Caldwell & Kearns 3631 N. Front St. Harrisburg, ~Rich&rd C. Rupp, Esquire CERTIFICATE OF SERVICE AND NOW, this /'2~ ~day of April, 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 Harhsburg, Pennsylvania, postage prepaid, addressed to: Richard C. Rupp, Esquire Rupp and Meikle 355 North 21st Street, Suite 205 Camp Hill, PA 17011 IN RE: : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA APPOINTMENT OF A GUARDIAN : OF THE PERSON OF : MILDRED J. GERBER, : ORPHANS COURT DIVISION an alleged incapacitated person, : Respondent : No. 21-01-92 INTERROGATORIES FROM RESPONDENT TO PETITIONER IN PETITIONER'S PETITION TO VACATE ORDER AND REVIEW HEARING RELATED TO ACCESS VISITS OF PETITIONE~ WITH PETITIONER'S MOTHER TO: MARILYN J. GERBER % Stanley J. Laskowski, Esquire Caldwell & Kearns 3631 N. Front Street Harrisburg, PA 17110 Demand is hereby made by the Respondent to the Petitioner for full and complete answers, under oath or certification, to the following Interrogatories within the time and in the manner prescribed by the rules of this Court. You are required to file answers to the following Interrogatories within thirty (30) days after service upon you pursuant to Pa.R.C.P. 4005. Pursuant Pa.R.C.P. 4005 and 4006, service hereof is made in triplicate. You are notified that your Answers, duly executed and sworn, must be entered after the corresponding numbered Interrogatory or part thereof, attaching such additional pages as may be required for complete answers. These Interrogatories are continuing in nature. If the responses to the questions change or the Petitioner becomes aware of new information, there is an obligation to supplement the responses. Failure to do so may result in the imposition of sanctions. INSTRUCTIONS AND DEFINITIONS Answer every Interrogatory. No question is to be left blank. If the answer to an Interrogatory is "none" or "unknown," that must be written as the answer. If the question is inapplicable, "N/A" must be written in the answer. Whenever a date, amount or other computation or figure is requested, the exact date, amount, computation or figure is to be given unless it is unknown. If so, give the best estimate or approximation thereof and note that such answer is an estimate or approximation. Whenever the word "identify" or "identity" is used in reference to a person, corporation or other entity, this means to state, if appropriate, his, her or its full name, present address and business affiliation. "Documentation" refers to writings or recording of any kind including but not limited to: letters, memoranda, correspondence, drawings guidelines, resolutions, photographs, microfilm, printouts, computer discs, electronic storage, pamphlets, notebooks, notes, forms and every other type of date compilation. "Identify" when applied to documents, means to describe the contents and to state the title, date of composition, author and, if different, the signer(s), the type of documents (e.g., letter, memorandum, telegram, etc.), a brief description of its contents, its location, and the name and address of the current custodian. INTERROGATORIES 1. With respect to Petitioner's Petition to Vacate Order state specifically how the access visit for July 10, 2002 was requested by Petitioner? 2. State what document or documents, if any, Petitioner claims were delivered to request said access visit for July 10, 2002? 3. State what response was received from the Guardian with respect to Petitioner's request for the access visit of July 10, 2002? 4. State how said response was received by Petitioner with respect to Petitioner's request for the access visit of July 10, 2002? 5. State when said response was received with respect to Petitioner's request for the access visit of July 10, 2002? 6. State what documents you are relying upon in making this allegation? 7. State what documents you intend to present at any hearing on this matter? 8. State specifically how the access visit by Petitioner with Mildred J. Gerber, her mother, for July 10, 2002 was canceled, denied, ignored and not responded to? 9. State how Petitioner complained to the Guardian about said access visit for July 10, 2002 which Petitioner claims was canceled, denied, ignored and not responded to? 10. State how such complaint, if any, was made to the Guardian, state when such complaint was made to the Guardian and state whether such complaint was made in writing to the Guardian. 11. With respect to Petitioner's Petition to Vacate Order state specifically how the access visit for July 26, 2002 was requested by Petitioner? 12. State what document or documents, if any, Petitioner claims were delivered to request said access visit for July 26, 2002? 13. State what response was received from the Guardian with respect to Petitioner's request for the access visit of July 26, 2002? 14. State how said response was received by Petitioner with respect to Petitioner's request for the access visit of July 26, 2002? 15. State when said response was received with respect to Petitioner's request for the access visit of July 26, 2002? 16. State what documents you are relying upon in making this allegation? 17. State what documents you intend to present at any hearing on this matter? 18. State specifically how the access visit by Petitioner with Mildred J. Gerber, her mother, for July 26, 2002 was canceled, denied, ignored and not responded to? 19. State how Petitioner complained to the Guardian about said access visit for July 26, 2002 which Petitioner claims was canceled, denied, ignored and not responded to? 20. State how such complaint, if any, was made to the Guardian, state when such complaint was made to the Guardian and state whether such complaint was made in writing to the Guardian. 21. With respect to Petitioner's Petition to Vacate Order state specifically how the access visit for September 2, 2002 was requested by Petitioner? 22. State what document or documents, if any, Petitioner claims were delivered to request said access visit for September 2, 2002? 23. State what response was received from the Guardian with respect to Petitioner's request for the access visit of September 2, 2002? 24. State how said response was received by Petitioner with respect to Petitioner's request for the access visit of September 2, 2002? 25. State when said response was received with respect to Petitioner's request for the access visit of September 2, 2002? 26. State what documents you are relying upon in making this allegation? 27. State what documents you intend to present at any hearing on this matter? 28. State specifically how the access visit by Petitioner with Mildred J. Gerber, her mother, for September 2, 2002 was canceled, denied, ignored and not responded to? 29. S!a. te how Petitioner complaine, d to the Guardian about said access ws~t. for .September 2, 2002 which Petitioner claims was canceled, demed, ~gnored and not responded to? 30. State how such complaint, if any, was made to the Guardian, state when such complaint was made to the Guardian and state whether such complaint was made in writing to the Guardian. 31. With respect to Petitioner's Petition to Vacate Order state specifically how the access visit for September 4, 2002 was requested by Petitioner? 32. State what document or documents, if any, Petitioner claims were delivered to request said access visit for September 4, 2002? 33. State what response was received from the Guardian with respect to Petitioner's request for the access visit of September 4, 2002? 34. State how said response was received by Petitioner with respect to Petitioner's request for the access visit of September 4, 2002? 35. State when said response was received with respect to Petitioner's request for the access visit of September 4, 2002? 36. State what documents you are relying upon in making this allegation? 37. State what documents you intend to present at any hearing on this matter? 38. State specifically how the access visit by Petitioner with Mildred J. Gerber, her mother, for September4, 2002 was canceled, denied, ignored and not responded to? 39. S.tate how Petitioner complaine, d to t.h..e. Guardian about said access v~sit for September 4, 2002 which Peht~oner claims was canceled, denied, ignored and not responded to? 40. State how such complaint, if any, was made to the Guardian, state when such complaint was made to the Guardian and state whether such complaint was made in writing to the Guardian. 41. With respect to Petitioner's Petition to Vacate Order state specifically how the access visit for October 8, 2002 was requested by Petitioner? 42. State what document or documents, if any, Petitioner claims were delivered to request said access visit for October 8, 2002? 43. State what response was received from the Guardian with respect to Petitioner's request for the access visit of October 8, 2002? 44. State how said response was received by Petitioner with respect to Petitioner's request for the access visit of October 8, 2002? 45. State when said response was received with respect to Petitioner's request for the access visit of October 8, 2002? 46. State what documents you are relying upon in making this allegation? 47. State what documents you intend to present at any hearing on this matter? 48. State specifically how the access visit by Petitioner with Mildred J. Gerber, her mother, for October 8, 2002 was canceled, denied, ignored and not responded to? 49. State how Petitioner complained to the Guardian about said access visit for October 8, 2002 which Petitioner claims was canceled, denied, ignored and not responded to? 50. State how such complaint, if any, was made to the Guardian, state when such complaint was made to the Guardian and state whether such complaint was made in writing to the Guardian. Respectfully submitted. Richard C. R~l~pp, JF~quire Attorney I.D. #34832 355 N. 21't St., Suite 205 Camp Hill, PA 17011 (717) 761-3459 Attorney for Respondent VERIFICATION I, Marilyn J. Gerber, the within named Petitioner, do verify that facts contained in the foregoing Answers to Interrogatories are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. Marilyn J. Gerber - Petitioner CERTIFICATE OF SERVICF I, Richard C. Rupp, Esquire, do hereby certify that I am serving a true and correct copy of the foregoing Interrogatories from Respondent to Petitioner upon the person(s) named bel Attorney I.D.# 34832 355 North 21st Street, Suite 205 Camp Hill, Pennsylvania 17011 (?l ?) ?~'~-34~ Dated: January 2, 2003