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HomeMy WebLinkAbout05-14-03IN 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, : Movant : NO. 21-01-92 CONTEMPT HEARING MEMORANDUM Petition filed by Marilyn Jo Gerber asking that Frederick E. Gerber, II, Guardian of the Person of Mildred J. Gerber, be held in contempt of this Court because: a. Access visits were denied, cancelled or not responded to for certain dates, and b. Guardian procured ex-parte order from Court terminating access visits for an eig~t~8) week period. I. WITNESSES INTENDED TO BE CALLED 1. Dr. Pauline Wiener- Board Certified Geriatric Psychiatrist who treated mother - who will testify as to her treatment. Attached hereto and incorporated herein by reference are her letters concerning her treatment of Mildred Gerber. 2. Joan Jackson - Social Worker employed by Sanders and Warren, employed by the Guardian to conduct and supervise the access visits who will testify as to specific visits. Attached hereto and incorporated herein by reference are her chart of the visits and the times of the visits of Marilyn Gerber. 3. Marilyn Gerber on cross-examination. 4. Frederick E. Gerber, II, Guardian of the Person of Mildred Gerber, whose testimony will rebut Petitioner's testimony. II. LEGAL ARGUMENT A. Court must find that Respondent's conduct rose to the level of contumacious conduct in order to compensate Petitioner for losses. Fatemi v. Fatemi, 371 Pa Super 399 B. Such remedial fine must be based on evidence of actual losses sustained which are provable and dependant upon the outcome of the controversy. Brocker v. Brocker, 429 Pa 513, 241 A.2d 336 (Pa. 1968) 2 III. NO LOSSES TO PETITIONER Despite Petitioner's averments and allegations, Petitioner did not actually incur special damages or losses directly caused by the Guardian's conduct in following or applying the Court's March 25, 2002 Order. IV. NO CONTEMPT IN PROTECTING PHYSICAL AND MENTAL WELL-BEING OF WARD IN COMPLYING WITH COURT ORDER Petitioner has a long history of aggravating and upsetting her mother, Mildred J. Gerber. Petitioner was prosecuted by her mother for defiant trespass and convicted by a jury in this Court. Guardian was advised by health aides whom he hired to prevent Petitioner from aggravating and upsetting her mother that Marilyn was belligerent and demanding with her mother causing her mother upset, not only on the day of the visit but for following days as well. 3 The Guardian has been advised by Dr. Pauline Wiener, a Board Certified Geriatric Psychiatrist, that Petitioner's upset to her mother was detrimental to Mildred Gerber's physical and mental health. The Respondent, the Ward's Guardian, had a duty under law to protect the best interests of his Ward and a duty to follow the Court's Order. As the Court Order was silent on reasonable rules and restrictions and supervision, the Guardian determined after seeking legal advice and medical advice, what the best interests of his Ward were in accordance with the Pennsylvania Incompetence Act, 20 Pa. C.S.A. 5501 et. seq. V. PROOF OF DAMAGES The Petitioner has the burden of proof to prove that her losses or special damages were directly the cause of the Guardian's misconduct in violating the Court's Order. Fatemi v. Fatemi, 371 Pa Super 399, Brocker v. Brocker, supra. 4 Respectfully submitted, · $upreme Ct ID No. 34832 355 North 21st Street, Suite 205 Camp Hill, PA 17011 717-761-3459 Attorney for Movant 5 27W350 Higt~lake Roacl · Room 240 e, Winfiel0, Illinois 80190 Phone (630) 682-2746 · Fax (830) 933.1933 Plea.se =all if any questions S~, -~-,~ ~, b,4- /'~" PAULINE K. WIENER, M.D., S.C. 27W350 HmH LAKE ROAD, ROOM 240 WINFIELD, ILUNOIS 60190 PHONE (630) 682-2746 FAX (630) 933-1933 July 18, 2002 RE: Mildred Gerber To Whom It May Concern:, This letter is written with the goal of providing an update on Ms. Mildred Gerber.'s psychiatric and psychological stares. I base my current recommendations on my visit with Ms. Gerber on $uly 17, 2002. Ms. Gerber continues to display significant depressive and anxious symptoms. I am very concerned about her slow but continuous weight loss. Her cognition appears to be deteriorating. I am very concerned about the effect the weekly visits with daughter Marilyn have had on Ms. Gerber's state. Despite Ms. Gerber's emotional upheaval surrounding these weekly visits, it is my understanding that the court has authorized that these visits continue. As noted in my previous letter, I must recommend a cessation of the visits with Marilyn until Ms. Gerber's psychiatric status improves. My next office appointment with Ms. Gerber is scheduled for August 28, 2002. At this time I will reassess Ms. Gerber's condition. Sincerely, Pauline K. Wiener, M.D. 41 Pauline IL Wiener, Mil. S.C. 27W350 Highlake Road e' Room 240 · Winfield, Illinois 60190 Phone (630) 682-2746 · Fax (630) 933-1933 October 15, 2002 RE: Mildred Gerber 4..  To whom it may concern; This letter is written with the goal of providing an update on Ms. Mildred Gerber's psychiatric and psychological status. !  base my current recommendations on October 14~, 2002 visit with Ms. Gerber. my :!') I have been ~'eating Ms. Gerber since March 13, 2002. She has diagnoses of dementia and depression. Over the last 6 · monlhs Ms. Gerber's cognition has greatly deteriorated. And her depression has been somewhal "treatment-resistant." Ms. Gerber is currently undergoing treatment with Remeron (an antidepressant), as she did not respond to the initial antidepressant course with Zoloft. l continue to be very concerned about the profound effect Ihat the visils with Marilyn (her daughter) have on Ms. Gerber's psychological state. Ms. Gerber's emotional upheaval from these court-mandated weekly visits significantly undermines · whatever progress we might be making with her medication n-eatment. Also available al my most recent visit with Ms. Gerber were a nurse (Michel}e) from the Sunrise Assisted Living facility where Ms. Gerber resides, and Joan Jackson, the private duty social worker. They reported to me that Ms. Gerber continues to display increased anxiety during and after the visits between Ms. Gerber and her daughter, Marilyn. And the 8 lbs. weight loss over the last 6 weeks is relevant as well when lheir report of poor appetite over the 2-3 days after each of these visits is considered. In summary I wish to indicate how fragile Ms. Gerber's overall state of mind is, and the clear negative impact that the weekly visits have on her health. ! urge the court to discontinue the visits with Ms. Gerber's daughter, Marilyn. 1 make this recommendation with the simple goal of reducing unnecessary stressors on Mildred Gerber. it is important to emphasize how quickly Ms. Gerber can deteriorate from her present level of functioning, and how much these traumatic visits can hasten such a deterioration. At my 8-week follow-up visit, if Ms. Gerber's health stabilizes, then I would be inclined to agree with supervised visits with her daughter, Marilyn. Please call if any questions arise. · Sincerely, Pauline K. Wiener, M.D. LIST OF VI~I'T'S TIME HOW VISIT WAS TERMINA,TED 4-t07/02 Met with Col. Gerber, Mrs. Gerber and 4 1/2 hfs Full visit. Madlyn decided to Marilyn Gerber at Embassy Suites. forego I hour to discuss issues with Joan Jackson. 4t12/02 Met with Col. Gerber, Mrs. Gerber and ,4 1/4 hrs Complied with court ordered time. Marilyn Gerber at Embassy Suites. 4t17/02 Met at daughter Jane Heflin's house, 3 1/2 hm Marilyn did not show up for visit. visited Essa Center with Col. Gerber. Went to Embassy Suites to meet with Marilyn Gerber. Marilyn did not come. 4124102 Supervised visit with Mrs. Gerber, Jane 3 3/4 hfs Mrs. Gerber wanted to. go home. Heflin and Marilyn Gerber at Embassy Jane terminated visit. Suites, 5t01t02 Supervised visit with Mrs. Gerber, Jane 3 3/4 hfs Marilyn initiated termination; she stated Heflin and Marilyn Gerber at Embassy she was tired of disengagement. Suites. 5t07/02 Superviseel visit with Mrs. Gerber, Jane 4 hfs Complied with court ordered time mir~us Heflin, Marilyn Gerber. Embassy Suites travel time to Hampton Inn. for lunch onty. To Hampton Inn on 22nd Street in Lombard for remainder of visit. 6t07/02 Supervised visit with Mrs. Gerber, Jane 3 1t2 hrs Termination not charted. Heflin, and Marilyn Gerber at Embassy Suites. 8tl 9102 Visit with Mrs. Gerber, Jane Heflin, and I 3/4 hfs Marilyn did not show up. Marilyn Gerber. Marityn did not come. 7t05/02 Meeting with Mrs. Gerber, Jane Heflin, 4 3/4 hrs Mrs. Gerber wanted to leave; Jane and Madlyn Gerber at Embassy Suites. complied. Complied with court ordered Luise Warren of Sanders & Warren time, subsliluted for Joan Jackson. Page 2 UST OF VISITS TIME HOW VISIT WAS TERMINATED 7/10f02 Visit cancelled. Visit cancelled. 7/17102 Super'vised visit with Mrs. Gerber, Jane 4 1/2 hrs Complied with court ordered time. Heftin, and Marilyn Gerber at Embassy Suites. 8/07102 Supervised visit with Mrs. Gerber, Jane 4 114 hfs Complied with court ordered time. Heflin, and Marityn Gerber at Embassy Suites. 8/14102 Supervised visit with Mrs. Gerber, Jane 4 3/4 hrs Complied with court ordered time. Heflin, and Marilyn Gerber at Embassy Sui[es. 8/21t02 Supervised visil with Mrs. Gerber, Jane 4 1f2 hfs Complied with court ordered time. Heflin, and Marilyn Gerber at Embassy Suites. 9/09/02 Meeting with Col. Gerber at Sunrise 4 I12 hrs Termination not known. Joan Jackson Assisted Living in Glen Ellyn Supervised left one hour before termination. visit with Mrs. Gerber and Madlyn Gerber at Sunrise Assisted Living. 9116f02 Sclieduled visit with Marilyn Gerber and Mrs. 5 1/4 hrs Marilyn did not show up at the Homestead, Gerber at Homestead Hotel, Lombard. Lombard for the visit. Marilyn did net come. 9123t02 Unscheduled visil - supervision of Mrs. 3 1/4 hfs Complied with court ordered time. Sunrise Gerber and Madtyn Gerber by Barbara staff supervised first part of visit. Sanders of Sanders & Warren. t 0/01f02 Scheduled visit with Mrs. Gerber and 2 t14 hfs Marilyn did not show up. Marityn Gerber. Marilyn did not show up. Page 3 LIST OF VISITS~ TIME flOW VISIT WAS TERMINATFi3 10/03/02 Unscheduled visit - supervision of Mrs. 3 hfs 'Visit terminated by Sunnse Assisted Gerber and Marilyn Gerber Living. Glen Ellyn police arrived, Madlyn ieaves at 6 13. m, instead of 7 p.m. Guardial'~ had extended time to 7 P.M.