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HomeMy WebLinkAbout04-02-03 IN RE: APPOINTMENT OF A · IN THE COURT OF COMMON PLEAS OF GUARDIAN OF THE PERSON OF CUMBERLAND COUNTY, PENNSYLVANIA MILDRED J. GERBER · · 21-0.1-92 ORPHANS' COURT IN RE: CONTEMPT .. BEFORE BAYLEY, J, OPINION AND ORDER OF COURT' Bayley, J., April 1, 2003:- '" Following hearings conducted on October 8 and December 19, 2001 in a ~contested proceeding regarding the appointment cfa gUardian of the person of Mildred J. Gerber, the following order, supported by a wdtten opinion, was entered on December 21, 2001: (1) Frederick E. Gerber, II, is appointed plenary guardian of the person of Mildred J. GerberJ . ~.,:!. . (2) A headng on the petition of Mai;ilYn Gerber for access to her mother shall be conducted in Courtroom NUmber 2' Cumberland County Courthouse, Carlisle, Pennsylvania, at'2::J0 p.m.~ Monday January 28, 2002. The guardian of the person sh~ll have. Mildred J. Gerber present Mildred Gerber was born on November 9, 1914. Her husband died in February, · 1998. She had three children: Frederick E. Gerber, II, Jane Heflin, and Marilyn J. Gerber. Marilyn Gerber opposed the appointment of Frederick E. Gerber, II, as plenary' ' On March 22, 2001, following a 'contested proceeding, this court found that Mildred J. Gerber was an incapacitated person. PNC Bank was appointed plenary guardian of i~er estate. 21-01-92 ORPHANS' COURT " guardian of the person of Mildred Gerber. Jane Heflin supported the appointment. The guardian opposed any contact by Marilyn J. Gerber with her mother. Following a hearing on that issue, the following order was entered on March 25, 2002: [i]t is ordered that the personal.guardian of Mildred Gerber shall allow Marilyn Gerber to visit with her mother for four continuous hours each week when Marilyn Gerber can arrange to be where her mother is located? ~Having appointed a personal and estate guardian for Mildred 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 Gerber. On July 24, 2002, the guardian filed a motion for'the temporary suspension of access visits under the order of March 25, 2002, and for a further order precluding all further visits by Marilyn Gerber with her mother. On July 29, 2002, the motion was denied without a hearing. On the petition of Marilyn J. Gerber, the following order was entered on December ;18, 2002: [al Rule is entered against Frederick E. Gerber, Ii, to show cause why he should not be adjudicated in contempt for failing, in his capacity as guardian of the person of Mildred J. Gerber, to allow Marilyn Jo Gerber access to Mildred J. Gerber as provided for in an order of March 25, 2002. Rule returnable at a hearing at 8:45 a.m., Thursday, February 8, 2003, at which time Frederick E. Gerber, II, is directed to appear. (Footnote omitted.) The guardian filed an answer. The Contempt hearing was conducted on February 6, 2003. VVhen the Rule was entered the alleged contempt was civil in nature because Marilyn Gerber sought enforcement of the order of March 25, 2002, allowing her access to her mother for four continuous hours each week. See Bruzzi v. Bruzzi, 21-01-92 ORPHANS' COURT 332 Pa. Super. 346 (1984). Mildred J. Gerber died at age 88, on January 14, 2003. It was then no longer possible to coerce the guardian int° compliance With the order of visitation. When the hearing was conducted on February 6, 2003, the issue arose as to whether the alleged contempt became indirect criminal contempt. While at first we thought that was the case, on reflection, we.conclude that th® issue of COntempt following the death of Mildred Gerber is still civil in nature. Madlyn Gerber seeks damages. A court may in a proceeding for civil contempt impose the remedial punishment of a fine payable to the.aggrieved litigant as compensation for any special · damage sustained by mason of the contemptuous conduct of the offender. Fatemi v. .Fatemi, 371 Pa. Super. 101 (1988). When Frederick E. Gerber was appointed plenary guardi;n of the person of his mother on December 21, 2001, she was living in her marital home in New Cumberland, (~umberiand County. Marilyn Gerber lived nearby. Frederick Gerber lives in Fairfax, Virginia. Shortly after his appointment, Frederick Gerber moved his mother into the home of his sister, Jane Heflin, in Chicago, Illinois. While her mothe~iiVed in Chicago, Marilyn Gerber regularly sought to exercise her four continUous hoU~'i~?each week of visitation with her mother under the order of Mamh 25, 2002, until them was an ex- parte order in an Illinois court on October 29, 2002, terminating the visitation. The difficulty Marilyn had in exercising this visitation and the expenses she claims she incurred due to roadblocks put in her way by the guardian, forms the basis of her claim of contempt and damages arising therefrom. -3- 21-01-92 ORPHANS' COURT VVhen we met Mildred Gerber during the course of the guardianship proceedings she was a refined lady suffering from dementia who was in the twilight of her life. Frederick Gerber, Marilyn Gerber and Jane Heflin are intelligent people. Never however, in the experience of this cOurt, have we seen a more hateful relationship between siblings. Frederick Gerber and Jane Heflin can do nothing in the eyes of 'Marilyn Gerber that would gain her approval or respect. Marilyn Gerber's vituperatious conduct assures that Gerber and Heflin feel the same way about her. To describe the relationship between these people as poisonous is an understatement. At every turn of events, Marilyn Gerber's insentient and unreasonable demands regarding the care of her mother drove a final wedge between these people which made effective communication and cooperation virtually impossible. As soon as Mildred Gerber was moved into the home of her daughter, Jane Heflin, in Chicago, the guardian made rules. There would be no visitation in that home. · The visitation would take place in a hotel. The visitation would be monitored at all times . by his representative, Joan Jackson, a licensed clinical social worker. Jackson was instructed as to how the visitation was to be conducted. The days during which Marilyn could visit were limited to Monday, Tuesday and Thursday with no weekend visitation. I~larilyn is employed as an intensive care nurse. She was not able to be with her mother many weeks because the guardian would not schedule her request for visitation on days that she cOuld come to Chicago. The guardian's conduct prevented her from making less costly long-term and weekend flight reservations than flying back and forth 21-01-92 ORPHANS' COURT · to Chicago on weekdays. She did not stay overnight because of expense. Through October 16, 2002, Marilyn went to Chicago fifteen times to visit her mother. On one occasion she was not allowed to see her. On another occasion the visitation was terminated after fifteen minutes. On many occasions the visits were terminated after a (~ouple of hours. The guardian placed Mildred Gerber in a nursing home in August, 2002. Initially, he did not tell Marilyn and the visits continued at a hotel. Eventually, Marilyn found out her mother was in a nursing home, but she Was not allowed four hour visits there because the guardian gave instructions to the administrator to prevent contact. When the guardian later allowed the visits at the nursing home he still required that Joan Jackson be present. The visits went poorly to say the least. As could be expected, the rules set by the guardian brought a storm of protest and resistance from Marilyn. The rules created tension and difficulty during the visitations. The rules were not warranted under the visitation order of March 25, 2002.2 When the order was entered we realized that the relationship between these parties would cause difficulties. That is why the visitation was limited. That is why, on July 29, 2002, we summarily denied the guardian's request to terminate or alter the visitation, noting: 2 The guardian testified that he insisted upon having Joan Jackson monitor the visitation as an advocate for his mother, and to assist him in complying with the order of visitation. The order of visitation, however, was as simple as pie. Marilyn could visit her mother for four hours each week. We concluded that the visits were in the best interest of the incapacitated person notwithstanding the agitation it might cause her. -5- 21-01-92 ORPHANS' COURT The guardian, Frederick E. Gerber, II, who is responsible to provide Marilyn Gerber the visitation with her mother under the order of March 25, 2002, and the two sisters, should take note of the Sanders & Warren report of July 15, 2002:3 It is my opinion that these visits would be less stressful for Mrs. Gerber if they were shorter. However, Marilyn does travel a long distance to see her. It might be helpful if there were breaks, quiet down time for Mrs. Gerber during the visits. The most upsetting element of the visits is the tension between the two sisters. The sisters need to refrain from talking to one another or need to be better at modulating their tone of voice and controlling their frustrations. It is a documented fact that people with Alzheimer's Disease recognize emotional tones and cues far longer than they remember language of facts. They will react to very subtle emotions even if they do not understand the complete context of the conversation. (Emphasis added.) When the order of visitation was entered it was obvious that the family members involved, including Marilyn Gerber, would make it difficult, that the last person they would put at the top of their priority was their mother, and their mother would suffer some distress as a result. Thus, the visitation is limited. The order stands. In Cahalin v. Goodman, 280 Pa. Super. 228 (1980), the Superior Court stated: In clearly defining the practice and procedure for civil contempt, our Pennsylvania judiciary has deemed five elements essential to civil contempt adjudication: these include (1) a rule to show cause why attachment should issue; (2) an answer and hearing; (3) a rule absolute; (4) a hearing on the contempt citation; and (5) an adjudication of contempt. Despite Marilyn's conduct, she has produced evidence of the contemptuous conduct of the guardian, and that she has suffered special damages as a result. Accordingly, the following order is entered. 3 The guardian commissioned this report which was attached to the petition to terminate the visitation. 21-01-92 ORPHANS' COURT ORDER OF COURT AND NOW, this ~ day of Apdl, 2003, the Rule to show cause IS MADE ABSOLUTE. An attachment is issued on a citation for civil contempt against Frederick E. Gerber, I1. A hearing will be conducted and an adjudication entered in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania at 3:00 p.m., Wednesday, April 23, 2003. By the C.ou~rt, . Edgar B. Bayley, J. Richard C. Rupp, Esquire For Frederick E. Gerber, II Stanley J.A. Laskowski, Esquire 'For Marilyn Gerber :sal -7- CERTIFICATE OF SERVICe: AND NOW, this ~/d~ay 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: Stanley J. A. Laskowski, Esquire Caldwell & Kearns 3631 N. Front St. Harrisbu~.