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HomeMy WebLinkAbout10-24-03 (2) Marilyn Jo Gerber 42 Drexel Place New Cumberland,PA 17070 (717)503-5280 October 7,2002 The Honorable George E. Hoffer President Judge Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 RE: First and Final Account for the Revocable Trust of Fred E. Gerber, I lSuccessor-Trustee established by Mildred J Gerber on December 19,1997 and amended on August 2,1999 and January 25,2001 and First and Partial Account for the Revocable Trust of Fred E Gerber, II,Successor-Trustee established by Fred E Gerber, Sr. on July 29,1994 Dear Judge Hoffer: I have reviewed theletter from Richard Rupp,Esquire dated August 27,2002 which requested a 45 day waiting period before appointing an Auditor in order to attempt to "amicably" work out the issues which were raised through the filing of Objections by PNC Bank and myself regarding the incomplete accounting by the former Trustee, Fred E Gerber, Il. On September 30,2002, I filed a request with the Court for a status conference with respect to the Accounts filed by the Trustee to both Trusts. This request for a status conference was done as I had received no correspondence or telephone conversations by Richard Rupp during the time between August 27 and September 30,2002 to attempt to amiccably work out the issues. I also have no knowledge from PNC Bank or Ms AJ Mendelsohn that Richard Rupp has attempted to amicably work out the issued of both Trusts. I must also state that historically that Richard Rupp has refused to correspond or take my telephone calls or meet with me despite that I am on record with this Court as PRO-SE. I have also reviewed the most recent letter from Richard Rupp, Esquire dated October 4,2002 which he states that he met with Fred E Gerber, II on October 1,2002, and he continues to request additional time to produce another version of accounting which he refers to as an Amended and Restataed Account for each of the above Trusts. Mr Rupp additionally requests that this Court accepts his proposal and give his client until October 21,2002 to produce these Amended Accountings. I respectfully request of this Court that Mr Rupp's request be denied. The law firm of Herber Rupp and Richard Rupp has promised to provide accounting since January 15,1999 for the Trust of Fred E Gerber, Sr. The law firm of Lindsay Baird,Esquire has promised a former attorney, Michael Kane (who is no longer in private practice) since February 2001, accounting for the Trust of Fred E Gerber, Sr. Herbert Rupp also assisted Lindsay Baird, Esquire for the accounting in 2001 which only resulted in partial and sketchy accounting. Mr Rupp also promised the attorneys for PNC Bank since March 23,2002 the accounting for the Trust of Mildred J Gerber. The law firm of Rhoads & Sinon, through the counsel of Ms A.J. Mendelsohn for PNC Bank has repeatly requested accounting from Fred E Gerber, Il, for the Mildred J Gerber Trust. Finally after six months of requesting that Fred E Gerber, II remove himself as Trustee and Successor Trustee of the Milred J Gerber Revocable Trust, AJ Mendelsohn and PNC Bank had to remove him through this Court on October 3,2001. After repeated attempts to secure a full accounting of the Mildred J Gerber Trust from Fred E Gerber, Il, PNC Bank and AJ Mendelsohn filed a Petition to Cite Trustee to file an Account of Administration which was granted by this Court on June 7,2002. Fred E Gerber, II was given until July 8,2002 to provide a full accounting of both Trusts along with all receipts,disbursements and distributions of the Trust. On July 8,2002, Fred E Gerber, II filed a First Final Account of the Mildred J Gerber Trust and on July 8,2002, Fred E Gerber, II filed a First and Partial Account of the Fred E Gerber, Sr. Trust. On July 31,2002, Fred E Gerber, II filed an Amended and Supplement to First and Final Account of the Mildred J Gerber Trust. On August 27,2002, PNC Bank and myseff filed Exceptions to the accounting by Fred E Gerber, II which only accounted for accounting from 1998 until 2001. All accounting for 2002 up to the present time of July 8,2002, was missing despite that this Court ordered all accounting to be produced by July 8,2002. In summary, Fred E Gerber, Il as Trustee for both Trusts of his parents has had the fiduciary responsibility of managing and administrating these Trusts which includes keeping timely and accurate records for each year since 1998. It is inappropriate for Fred E Gerber, II to request for additional time at this stage. PNC Bank and myself have filed Exceptions which included requests for surcharge of Fred E Gerber, II for sizeable amounts of distributions and disbursements improperly paid from the Trusts as set forth in the Objections. I asked for an Audit in addition to full asset searches in my Objections to both Trusts. I also respectfully respect full discovery. The law firm of Herbert Rupp and Richard Rupp started in 1994 representing my father, Fred E Gerber, Sr. In 1997, this firm also represented my father and mother. In 1998, the Rupps also represented my mother for the estate of Fred E Gerber, SA The Rupps also rewrote the Trust of Mildred J Gerber twice, once in 1999 and again in 2001. In February 2001, the Rupps recused themselves from representing themselves for the Trust of Fred E Gerber,Sr and Mildred J Gerber Trust due to the fact that they were also were representing Fred E Gerber, II in a personal law suit against me which was filed in 1999. They state that they wanted to avoid any inpropriety and conflict of interest. The Rupps go on to state that Undsay Baird would represent all matters for the Fred E Gerber, Sr. Trust. Lindsay Baird has also confirmed that she represents the Trustee, Fred E Gerber, II for all matters of the Fred E Gerber,Sr. Trust and the Trustee, Fred E Gerber, II. At this junction of Richard Rupp's letter of October 4,2002, requesting essentially another continuace of time until October 21,2002 in order to save the parties' and the Court's valuable time with respect to these Trusts is another stall for time as has been the case for 4 years and 7 months. I am therefore requesting that this Court order an Audit of both Trusts and if this Court is in agreement, I am prepared to forgo a status conference which would have to occur before October 11,2002 to keep with Mr Rupp's request for a 45 day waiting period. If this Court is not prepared to order an Audit, I then respectfully request for an immediate status conference and strongly object to any continuance of time until October 21,2002 which I feel will only produce an impartial and sketchy accounting. It is my belief that Fred E Gerber, II is avoiding an audit at all costs and wasting this Court's valuable time as well as the extraordinary financial costs to my mother and father's Trust accounts, not to speak of the multiple attorneys fees charged to my parents' Trusts as well as PNC Bank's fees charged to my parents Trusts. Yours sincere¥, Madlyn Jo Gerber PRO-SE cc: Amy J Mendelsohn, Esquire, Attorney for PNC Bank Ms Jane Heflin Richard Rupp, Esquire, Attorney for Trustee Lindsay Baird, Esquire, Attorney for Trustee IN RE: FRED E. GERBER,SR. TRUST : IN THE COURT OF COMMON PLEAS UNDER AGREEMENT, dated CUMBERLAND COUNTY July 29, 1994 COMMONWEALTH OF PENNSLYVANIA ORPHAN'S COURT DIVISION NO. 21-1998-0195 ORDER IT IS HEREBY ORDERED,in accordance with Cumberland County Orphans' Court Rule 6.10(a) that is appointed Auditor to pass upon the Accounting and Objections filed to the First and Partial Account of Frederick E Gerber, II,Trustee for the Fred E Gerber, Sr. Trust dated July 29,1994 for the period February 22,1998 up to the present as ordered by the Honorable Judge Hoffer on June 7,2002, in the above captioned matter. BY THE COURT: George E. Hoffer, P.J. IN THE COURT OF COMMON PLEAS IN RE: MILDRED J. GERBER TURST UNDER AGREEMENT CUMBERLAND COUNTY COMMONWEALTH OF PENNSLYVANIA dated December 19,1997 ORPHANS' COURT DIVISION NO. 21 -O2-54O ORDER IT IS HEREBY ORDERED, in accordance with Cumberland County Orphans' is Court Rule 6.10(a) that appointed Auditor to pass upon the Objections filed to the First and Final Account of Frederick E. Gerber, II Trustee, for the Mildred J Gerber Trust dated December 19,1997 for the period of February 22,2002 up to the present as ordered by the Honorable Judge Hoffer on June 7,2002,in the above captioned matter. BY THE COURT George E. Hoffer,P.J. · IN THE COURT OF COMMON PLEAs APPOINTMENT OF A GUARDIAN ' CUMBERLAND COUNTy, PENNSYLVANiA OF THE PERSON OF · MILDRED j. GERBER, ' ORPHANs COURT DIVISION an alleged incapacitated person ' NO. 21-01-92 TO: FREDERICK E. GERBER, Fi ~ 13-1205 Wyndham Circle Alexandria, VA 22303 AND NOW, this ~ day of 20.~, YOU ARE HEREBy CITED to file a full, COmplete and detailed report with regard to the status of the incapacitated Person, Mildred j. Gerber, in accordance with the requirements of 20 Pa. C.S.A. § 5521, with this Court, on or before _, 20__~, at ~a'm'/p.m. or to Show cause by that same date Why the request set forth in the Petition for Citation to File a Report °fGuardian of the Person, filed by Petitioner, Marilyn Jo Gerber, a . granted. Copy ofwh~ch Petition is attached, Should not be THIS CITATION is directed to you pursuant to Order dated 20~, igsued by Judge , ~ttmg in the Orphans' Court Division of the Court of Common Pleas of Cumberland County, Pennsylvania, Copy of Which Order is attached. Date: Division of the Court of Common Pleas of ~ourt 50305 Cumberland County, Pennsylvania 6 THo~a^s, THOMAS & H^FER, LLP ATTORNEYS AT LAW SARAH W. AROSELL EUGENE N. McHUGH STEPHEN E. GEDULDIG JOSEPH V. HAFER 305 NORTH FRONT STREET KAREN S. cOATES JAMES K. THOMAS, II TODD B. NARVOL RoBERTSON B. TAYLOR S1XTH FLOOR JAMES J. DODD-O JEFFREY B. RETT1G KEVIN C. McNAMARA PETER J. cURRY P.O. BOX 999 BROOKS R. FOLAND R. BURKE McLEMORE, JR. JOHN FLOUNLACKER EDWARD H. JORDAN, JR. HARRISBURG, PA 17108 JoHN M. poPILOCK C. KENT PRICE ~ MICHELE J. THORP RANDALL G. GALE (717) 237-71 O0 G. CHRISTOPHER PARR1SH DAVID L. ScHWALM ~ CLAUD10 J- DIPAOLO STEPHANIE L. HERSPERGER PETER J. SPEAKER FAX (717) 237-7105 DOUGLAS B. MARCELLO ~ pAUL J. DELLASEGA WRITER'S DIRECT DIAL NUMBER DRUMMOND B. TAYLOR (717) 255-7637 OF couNSEL pjc~tthlaw.com JAMES K. THOMAS March 20,2001 Ms. Marilyn Gerber 623 Hilltop Drive New Cumberland, PA 17070 RE: Mildred Jane Gerber Dear Ms. Gerber: This will confirm our telephone conversation of March 20, 2001, concerning the subpoena which you served on my cl.ient, Dr. Todd Pelleschi. pursuant to the subpoena and in accordance with our discussion, Dr. Pelleschi will be available to receive a telephone call from Judge Bayley's chambers/courtroom on March 22, 2001, at or about 11:30 a.m. It is my understanding that Dr. Pelleschi's testimony is being sought with regard to a family dispute concerning your mother. It is my understanding that you simply wish to have Dr. Pelleschi review his chart, convey his impressions, the treatment prescribed, and to comment on the consequences of the lack of treatment (if any), if possible. Dr. Pelleschi has informed me that he has surgery scheduled for 1:00 p.m. and that it will be necessary for him to leave his office by 12:30 p.m. Consequently, I would appreciate it if you would call him as close to 11:30 a.rn. a.q possible. That,3: you for your consideration. Very truly yours, THOMAS, THOMAS & HAFER, LLP COPY By: Peter J. Curry pJC/kls cc: The Honorable Edgar Bayley Todd M. Pelleschi, DPM Mary Lindholm, Sr. Claims Consultant · LEHIGH YALLEY OFFICE: 12 E. MARKET STREET, P.O. BOX 1172, BETHLEHEM, PA 18016 (610) 868-1675 FAX (610) 868-1702 LAW OFFICES RUPP AND MEIKLE A PROFESSIONAL CORPORATION 355 NORTH 21ST STREET, SUITE 205 HERBERT G. RUPP, JR. CAMP HILL, PA 17011 MAILING ADDRESS P.O. BOX 395 RICHARD C. RUPP (717) 761-3459 CAMP HILL, PA 17001-0395 ANN MEIKLE ERIKSSON (1954-82) E-MAIL: RUPPLAW1OAOL.COM TELEFAX: (717) 730-0214 October 3, 2001 The Honorable Edgar B. Bayley Common Pleas Judge Cumberland County Court of Common Pleas Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Re: Petition for Guardian of the Person of Mildred J. Gerber, alleged incapacitated person Orphans Court Division No. 21-01-92 Dear Judge Bayley: On October 8 you have scheduled a hearing to determine whether or not Mildred J. Gerber, an alleged incapacitated person, should have a Guardian of the Person appointed for her behalf. I wish to present testimony of her doctor, Roger J. Cadieux, M.D., clinical professor of psychiatry at Penn State University. Dr. Cadieux's schedule is extremely heavy and as a such he can be available by telephone at 1:30 p.m. on Monday, October 8. I would appreciate your allowing Dr. Cadieux to testify by telephone with respect to his medical opinion and diagnosis of the alleged incapacitated person. Please find enclosed Dr. Cadieux's curriculum vitae. Thank you. RCR/lin Enclosure HHONIdERLTH ~FF Z ,L. 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Ph~ge~l st~e and Am R~ Respir O~ 136;623 ~, {087. ~ . : ' } . '{{ { . /';!i' '. {, .. ',-' ' ' ; '~ ~ I ' , RJ' ~ s~de~ ~f ~e~e s ee~i~e~ Narcolepsy a~ ;adieux .~ Bueno A: ..rcoi~l~pl~ IV: d,non,,~c ' ina~ 75:223-230, !98~. ' } ~ ' {', ,. ] ;:~ ~': :' .ie.x ~J, ,d, RL, B~er ~, k.~ge, T: EEec, Oi nad~,o' on ~; JM: Udn~ ~?h dru~ in'i~'e~edy. Pa~ent Car ~ ~:~7 94, i ~., ~ .. [ i ;', ~e~, J. Mdiclne 79186,1989. ,: H~MI :~04, 1989. ,, ~ , , ,,L.;~ ~..~:, . . ~ ': ~ ~. , ~ ~, ~ ~./'. ' die~ RJ, Ilar~ JD. l' ; : ~arkey FE, ' Db 140:~ , t ' 19~. and Tma~ng ep~lon. 8eni ',(8):2~29, 1~9~' '~ ~H, Lange ES'; Sh P~rmane~ iaool~y~ A pdm~ ~ c~re mdua~e [: , '' ~e elderly. ~ ~re 27:i .i :' ~.. . Io~ ~dea? Pa~ent , , i · .. , ,~an ',Family ~ ,el,dedy:.Undm, P,-450sy~ . B~n: O~ Hal~ & Co., !979 .140; Sloep ~s°r~e~ In the eldo~. ,din. OR So 'of Head a Summons M~ }tahara WP ~0, Da~ ~ THI~ LAW i~iRM OF' 3438 Tr/ndleRoad May&May, Camp H/Il, PA 17011 www. mayandmay, com Robert C. May Telephone 717-612-0102 Karen Brothers May Facsimile 717-612-0103 rcm~mayandmay, com March 20, 2001 v/a facsimile and first class mail Marilyn Gerber 42 Drexel Place New Cumberland, PA 17070 Re: in re: ApPointment of the Guardia~ of the Estate of Mildred Gerber 21-01-92 - Orphans Court Division, Cumberland County Court of Common Pleas Testimony of Cary Cummings, III, M.D. Dear Ms. Gerber: To memorialize our telephone conversation this afternoon, my client, Dr. Cummings, will make himself available by telephone on March 22, 2001, subject to the ability of his administrative assistant, Sara Greene, to find h/m, Which may require that he be paged, you will excuse Compliance with the subpoena issued yesterday, and I will refrain from filing an emergency motion to quash the subpoena. Please indicate to the court that Dr. Cummings, administrative assistant, Sara Greene, at 236-4682, ext 22., can arrange his telephonic appearance on Thursday. I understand that the line of questioning concerns Dr. Cummings, observations on the interaction among family members of his former patient Fred E. Gerber, Sr. If you have any questions or concerns, please do not hesitate to contact me. Very truly yours, MAY & MAY, P.C. Robert C. May cc: Cary Cummings, III, M.D. Court Administrator, Cumberland County Court of Common Pleas Clerk of Orphans' Court, Cumberland County Court of Common Pleas ' STANDARD AGREEMENT FOR THE SALE OF REAL ESTATE MS-ZK This form reconunended and approved for, but not restricted to use by, the members of the Pennsylvania Association of REALTORS® (PAR). SELLER'S B~ PA LICENSED BROKEI~/_ ~A)DRESS / -'-') FAX BROKER IS THE AGENT FOR SELLER. Designated Agent(s) for Seller, if applicable: OR Broker is NOT the Agent for Seller and is a/an: I-1. AGENT FOR BUYER [] TRANSACTION LICENSEE m z,. eV2V ., s LA, ,ONSnn' wrm PA LICENSED OKER ADDRESS FAX" BROKER IS THE AGENT FOR BUYER. Designated Agent(s) for Buyer, if applicable: OR Broker is NOT the Agent for Buyer and is a/an: [] AGENT FOR SELLER [] SUBAGENT F. OR SELIJ~.I/. [~ TRANSACTION LICENSEE' When the same Broker is Agent for Seller and Agent for Buyer, Broker is a Dual Agent. All of Broker's licensees are also Dual Agents UNLESS there art separate Designated Agents for Buyer and Seller. If the same Licensee is dealgnnted for Seller andBuyer, the Licensee is - Dunl Agent. ~ SELLER(S): n 2. PROPERTY (1-98) Seller hereby agrees to sell nmi convey to Buyer, who hereby agrees to lmrehnse: ,, ~: - ,, ,~ 0 ALL THAT CERTAIN Iot or oiece of frouild with l~il~ dJn~sandimp~pve~mp?~//e_re~nerected, ifany, kno"": ~ '~.'-'.. '. .... ~3 Identification (e.g., Tax ID #; Parcel #; Lot, Bl°Ck; Deed_BOok, ~ l/ec~?lin~. Dnto) 13 14 14 ~5 3. TERMS (1-02) //~ 18 which ~ he p~d to SMler by Buyer ss follow~ , 20 2. Cash or check wirhln days of thc ex~on~on of ~s Agreemem~ ~ 22 4. Cash, cashi='.s or certified check at thne of setti=m=nt: ' $ J ~,~,~, 0 ~ O 24 (B) D~posit& paid on account o~ purchase, price to be b=ld by Broker for SeLI~, unless otherwise stated bert: . 30 (~ Payl~ent of Ilqu~f,~"~~'~l~lafly' betwee. B.yer .ct geller u~.sotherw~.e stated ~: 30 31 31 32 (G) At thne of settlement, the following will be adjusted pro-rata on a daily basis between Buyer. and Seller, rehnbursing where applicable: taxes 32 33 (see Information Regarding Tax Prorafio~ rents; interest on mortga~ assumptions; condominium f(~s and homcowoer association fces, Lf 33 34 an),; water and/or ~wer f~eG, ~f an~,:togcther with an), other lie~lable mimicS[Nd a~'yi(~.-The charges are to be l~'o-rated for the period(s) 34 35 covered: Seller will pay up to. and including the date of settlement; Buyer will pay for all. days following settlement, un]ess otherwise stated 3~ 36 here: 3E 37 e 3; 3S 4. FIXTURES & PERSONAL PROPERTY (1-00) 3; 39 (A) INCLUDED in this sale and purchase price are all existing items permanently installed in the Proper~y, fr~ of liens, including plumbing; 3;. 40 heating; lighting fLxtures (including chandeliers and ceiling fans); water treatment s~stems; pool and spa equipment; garage door openers 41 and transmitters; television antennas; shrubb(~y, plantings and unpotted trees; any remaining heating and cooking fuels stored on the 4~ 42 Propert7 at the time of settlement; wall to wall carpeting; window cover~.g ha;dw, are, shades and blinds; built-in ah' cond~oners; build-in 4~ §0f ;. ~MORTGAGE CON'rING'v~2qCY 0-02) 61 ~[~ WAIVED. This sale is NOT contingent on mortgage financing. 63 (A) This sale is contingent upon Buyer 9b. '.t)~ling mortgage fin~an~i~g as follo~w,s: f'~' ~ 5 65 2. Miniraum Term, "~C) ~ ' 66 3. Type of mo~age 66 67 4. Interest rate ; %; howeYer, Buyer ,1~ to accept tile Interest rate as my be committed by the mortgoge lender, not to 67 68 exceed a maximum interest rate of ~..~ % %. 68 69 5. Discount points, ]oen origination, loan p]acement and other fees charged by the lender as a percentage of the mortgage loan (excluding 69 70 ally m°rtgqe il~ l~miums or YA funding £ee) DO~ tO exceed ~ ~ % ((Y~S if DOt s[~ified) of tile mortgage loan. 70 71 The interest rate and £ees provisions required by Buyer are satisfied if a mortgage lender'ms available to Buyer the right to guarantee afl 71 72 interest rate at or be]ow the Idaximum Interest Rate specified herein with thc pcrcemage fees at or below the amount specified herein. Buyer 72 73 gives Scl]er ~ right..at Seller's SOle optioll and as permitted by the nl~ag~ lender add applicable laws, to contribute fi_v~clally, withunt .... 73 74 promise of rdmburmm~t, to the Buyer and/or the mortgage lender to make the above-ten~ available to Buyer. 74. 75 (B) Within DAYS (!0 deys if not specified) of the execution of this Agreement. Buyer wili make a completed, writtenmortgag.e application 73 76 for the mort~ terns'specified hbove to a responsible mortgage lender. The Broker for Buyer, if any, otherwise the Broker for Seller, is 76 77 authorized to eomnmnkate wi~h the mortgage lender,f~ the purp0s~ of ansisti~ In the mortgngn lmm pmom~____ 77 78 (C) 1. Mor~__enmm#anentante · } ;). - ~ O ~' . ff a written commltment is not received by Seller by the above date, Buyer 79 and ~~ to ex~ ~ ~ commitment date until Seller terminnteJ this Afreemeslt In writfn{ by notice to Buyer. 80 2. Upon receipt of a ~a~ comn~t, Buyer will, promptly deliver a copy of the commitment to Seller. 80 81 ~. Seller has the option to tea~fi]~tt~' this A~reelxient in writi~, ~ the mortgage commi~¢nt d~_!¢ if thc moxT4~agc c~mmitment: 81 82 a. Is not valid until the date of se~e~, nt, OR 83 h. Is conditioned upon the rode and 9e~ent of~ other propm'ty, OR" .. 84 c. Contains any other condition not specified in this Agreement that is not satisfied and/°r remOved'in writing by them°~age lend~'~" ~4 85 within ? DAYS after the mort~t~e commnn~]~t ~ Jn 1~.6.(..C}.(!)..... ' 85 ~ 4. ff this Agreement is terminated as specified in P~m~N~hs 6 (C)O)0e (3), or the mo~t~/~f,~?)~ ~ for?t!l~ ~ll:~ del~/t ~m~_'. ~e~.: a? paid on acconnt of purchase price will be returned to Buye~ Buy= will be respo~ble for.~premiums'for mechanic~ ~/n~l~ce ~d/~ ~ 90 (D) If the moqag~, lender requires .~. ~ the Property,. BUy. er wi~ll,~ .up ~0u~.. ~,d~ V~.a ~ 's O~ ' Seile~will, within' $" DAYS of receipt of, th~ongagelender'g.req~,tlofify,~,~l~l, ~tl~"t~'pairs.' .... aa I. If Seller chooses to make the required repairs, Buyer Wilt ~ ~fi~ ~:~ a~e t~:~~f°Rl~r ~;iaa~agraph 25 of this' 96 notify Seller in writing of Buyer's choice to tefminste this Agreen~ent OR mnk~ the requized repeirs at Buyer'$.~ ~a~d~wi.th_ Seller.'s 98 ~ DAYS bt Sene% de-~M: ter~i,'~e t~ Agreement, ~ wMch case ~ 'del~it iSo~e~ ~pp~.. ~n ~ ?f ~xice wm be lOl OT APPLICABLE '101 ~ 05 FHA/VA, W APPLICABLE ~08 dance with_ ~ .?--~ ' . '.~ ' ' .'~-written statement by the Federal Housing CommL~ioner, Veterans Administral]on, or a Direct ~1 tract witholA '~:.~. ::~2~lq~ralsed valuation. The appraised valuation is _,8,m_'__'_ved at to determine the msyamum mortgage the 1~ satisfy himse~lf that the price and condition of the Property are acceptable. 114 Warnin~ Section 1010 of Title 18, U.S.C., Department of Housing and Urban Development and Federal Housing Administration 11~ 115 Trausactions, provides, "Wboever for the purpose of... influencing in any way the actiun of such Depmlment, makes, pesses, utters or pub- 11~ 116 lishes any statement, knowing the same to be false.., shall be fined under this title or imprisoned not more than two years, or both." 11~ 117 (G) U.S. Delmrtme~ of Housing smd Url~n Development (HUD) NOTICE TO PURCHASERS: Buyer's Acknowled~tnent 118 [] Buyer has received the HUD Notice "For Your Pro~ction: Get a Home Inspection" (see Notices and Information on Psoperty Condition 111 119 Inspections). Buyer unde~tands the importance of getting an independent home inspection and has thought about this before signing this 11! 120 Agreement. 121 Buyer's Iniflnh Date 1 122 (H) Certifl~flon We the undersigned, Seller(s) and Buyer(s) party to this transaction each ceflify that the terms of this conlract for purchase are 12: 123 true to the best of our knowledge and beUef, and that any other agreement entered into by any of these parties in connection with this uansac- 12: ~24 .tion is attached to this Agreement. ~2. ~25 7. INSPECTIONS (1-02) 12 126 (A) Seller agrees to permit inspections by authorized appraisers, reputable certifiers, insurer's representatives, surveyors, m~ipal officials and/or 12 127 Buyer as may be required by the mortgage lender, if any, or insuring agencies. SeUer further agrees to permit any other~pections required by 12 ~ 28 or provided for in the terms of this Agreement. Buyer has the right to at'tend all inspectibns. 12 -,47 _~) ff Buyer is n~t ~atfi'fii~ with the condition of the Property as stated in any written report, Buyer will: 148 Option 1. WithLn the time ~tven for completin~ inspections: 147 14g,,-~ 1. Accept the Property with the information stated in the report(s) and agree to the RFJ..EASE set fo~h in paragraph 25 of this Agreement~ OR ~50 2, Terminate this Agreement in writing by notice to Seller, in which case all' d~posit monies paid on account of purchase price will be returned ~51 promptly to Buyer and this Agz=ement will be VOID, OR 152 3. Enter into a mutually accelrmble written agreement with Seller providing for any repairs or improvement~ to the Property and/or any credit 153 to Buyer at settlement, a~ may be acceptable to the mortgage lender, if any. 154 Should efforts to reach a mutually acceptable agreement fail, Buyer must choose to accept the Property or terminate this Agreement within 104 155 the time 8iw~n for completi~.~ and according to the provisions in paragraph 8(C) (Option 1) I and 2. 156 ,,~ Option 2. Within the time 81yin for complettn~ f~pecttom: 157 1. Accept the ~' With the infimjaafion stated in the r~port(s)'and agree to the RI~I J~-ASE set foL~.b,~,~ 158 '- . 159 2. IfU~Nn-.ES$thet~ta~c~stt~c~rrectthec~nditi~nsc~ntainedinth~report(.~)i$m~r~than$_/~~ _. 25 of this Agreement, 157 the total cost to correct the conditions contained in the relx~t(s) EXCI~.~S the amount specified in paragraph 8(C) (Option 2) 16o Buyer ~ delh, er the report(~) to Seller witlfln the time given fo~ iml~m 16e 101 a. Seller will, within .. ? DAYS of receivin8 the report(s), inform Buyer in writing of Seller'.~ choice to: 162 (I) Make repairs her°re seltlemen~ so that the rm~ainin~ cost to r,.-13ah: conditions contained in the report(s) is less than ar equal to 1~3 the amount specitied__'m t~. 8 (¢). (Olaio~ 2).L 164 (2) Credit Buyer at settlement for the difference-between the estimated cost of repail'in~ the couditions contained in the reix)rt($) 164 165 and the amount specified in paragraph 8 (~ (Option 2) L This option must be acceptable to the ~xxxga~e ]emter, if any. 166' (3) Not m~lr,~ t~'pairs and nor credit'Buyer at setflemem for any costs eom~pair<xmdltiom co--in the t~'poftO). 168 Pro~aBd al~e to tl~ RRI.R&SE set ftnth in paragzat~ 25 of this Agreemcn~ 169 c, If Seller chooa~ not to m.V...; repairs an6 not to. credit Buyc~ at smzlcn~nt, or ff Seileg ~ to choo~ ~ option 170 ~ivea, Buyer will, .within 5 ~DAYS: -. ' .... within the lime 160 170 171 (1) Accept~the Pro~rty w~h..'.d~:.hlforma~oE stated in the ~p0lt~a) and a~'to tl~ RELEASE set forth in paragraph 25 of tl~ 171 ~72 Agr~nma, OR ' ' - . 176 ~ II WAIVED. Buyer understands that Buyer hm the option to ~t that I~ ~ .............. '- . . .~ ...... ;. 177/x~--..~ Ot~rator B 'an~m~ 'r*.no ,'-,',,,,',-i~_.a~ ............. '"n~_,? o~u'M0ccumzorwooamzestafionbyacertificd C~ :':::':"" ,_ ..... mdm WAry'ES.,. ..... _ . Pe~ m3t. am b~ wood-desto .................. ~ m~be ~ caused 194 -~-~ ~ ~ -.uF,~sty aa repaired anO agrees to the RRI .l~ ~,SE 195 set forth ia para~a~ ~25. of _~,.'. ~A~m ~.~ · .~_~_e ~.,_,~,,~ ~evealedbythereponorf~ilstonslxmdwithinthettme~h, en, Buyer within 194 197 I. Accq:)t th~ ~ ~ed by ttT, inspection, without abatement of price, and agree to the RELEASE set forth in para. 197 .-. ~_ ,t~lUm~ oy me mortgage lenoer, if any, at Buyer'i expeilse ~i/ldWith SelIe~'.i permission, which will- 198 202 Agr~meut in writing, in which ~ . depomt momes prod on account of purcha~ price will i~ retum~:[ promptly to Buyer and this 202 203 Agreemeut will be VOID, OR 203 204 3. Termln.m tl~ A~m~f+,il:whiol~2~a~ ,81], ~ R~3ni~'psid, o~ ~ of pm'chs~ ~ ~i~,ber-~lllllll~, pt"olnp~, tot Buye~ and? 284 205 ~ Asr~mant will b. VOID: 206 10. RF-~IDENTIAL LEAD-eASED PAINT HAZARD REDUCTION ACT NOT]C~ REQUI~n~R,~ ' 207 BUILT BEFORE 1978 (1-~) ~ ~' 210 Sellor reprints that Seller ha~ oo.knowledgg conc~'ningth~ 209 ~1~ pr~ace of lmd-bas~ paint and/or,load.based paint, hazards in or about th. 210 Property, unless checked below. ~13 e Pr0_Pe.nyL(Prov,d..e the basis for ~. ,.- ~ 'Fmu~ ~urta~s, ann omer avauable informa- 213 214 tion concerning Seller's knowledge of the presence of lead-based paint amt/ar lead-ba~ paint hazards.) :. 216 (B), Racord~/R_ ::._-:.i~ Sellm' has no ~_g~ ~ ~.aT.x=~ ~,,~,,dai~g, to lcad-bi~' p~... and~r lemt-ba~d pain[ ha.~_~ds ia ar about the Property, 216 217 un]ess checked be]ow. 235 ' ' 2. Withimthe ii'set forth above for obtaining the. risk assessment and/or impection of the Property for lead-based paint and/or '235 ~ lead-based paint hazards, Buyer may deliver to Seller a written list of the specific hazardous conditions cited in the report and those 238 ?37 ~ correg~ons requested by Buyer, along with a copy of thc risk assessmcnt and/or inspection rcpo~. 237 238 3. Seller may, within 7 DAYS of receiving the list and report(s), submit a wrilzen corrective proposal to Buyer. The corrective proposal 239 will include, but not be limited ~ the name.of the remediation company and a projected comp~ date for corrective measures. Selle~ ' 240 will provide certification from a risk assessor or inspector that corrective measures have been satisfactorily completed on or before th~ 24. 2¢1 projected completion d~_te: 241 242 4. Upon receiving tl~ core, ye proposal, Buyer, within ~ DAYS, will: 243 a. Accept the corrective proposal and the Property in writing, and agree to the la~l .~ASE set forth in paragraph 25 of this Agreement, OR 243 244 b. Tem~ina~thisA~eementi~w~tin~in.w~ichcasea~depo~itm~nl~spaid~nacc~unt~fpurchasepricewillberemmedPr~mp~y~ 244 245 to Buyer and tl~ Agreement will be VOI~. 24S 246 5. Should Sd]er f.n to submit a w~tton corre~be propemd within the time set forth in pa~gmph 10(D)3 of this Aj~r~ment, Buyer, 247 within 5 DAYS; ~ '. ,. 24~ 249 b. ' Tcl:mJJ)~c. t]~s A~J~'~ i~ wlJ~& i~ which cas~ al}deposit monies ~ oG aCC:Q~Dt.Of pl~rchasc [~'ic~ w~ be ~ Dz~lp~: 24Q 250 to Buyer ~ thhAg~me~ will be VOID. . ~ 25~ 6. Buyer's fid]o~ to exer~e imy o~Bu~yer~s options within the time limits spedfled in this per~r~h wi]] constitute a Wa o~ 251 254 1L STATUS OF RADON (1-02)~.~_ ..c 254 255 (A) ,~l]errt~)r~e~tl;thJIt~no:~(~xx~m~ ~l~,J;cn~ora]~;cl~c~of~lm]es~JMd~l&l~ll~41~t,i ,~,,.~,,.., ...... ., 25E 256 [] 1. Seller has knowled~ tha~'dJe~my was tes~l onthe d!tes, by die m~thods (e.g., ch~coal canls~, alpha uack, e~c.), and with 25S 257 ,'-~,~ .,:d ,~-~ th~-,resdl~:4~alJl~4:eM ~~q i~u? :L,~,~:-~, ?'.~m 7~s ;, ?~q ,?-~'t,i ~cst~*m,~,.:-f ':llin~ ,~ .~;,~,: 257 263 [] 2. Sener has knowledge that the Property underwent radon lr~luction ~ · . , . ~ . ..,: ~:,~;.~. . : :~ .. . · ~ . .~.. zs+~ .-... -~,~,~,~,.iu,d.,~ nt~'~muvr, s,'rm~ o~0s~m. . ' .,,,~~~,~:s~ 28, 270': LJ,: _~l-i; .~:.B~,~~plmm~,:halr{tlm~alliol~t{tol~lin,~mn{! .. .llmm~a~-~~ 270 271 :.'. ~. o~.th~i~ll~p~iS~-l~il~ill~.~d ,,,. ]~t~¥~id~.xtlly~:'_~,l~K]tD~lif~l,).~o~!~o¢lfl{~lI ". :.: ' ' 'ces: 271 272 . ,. ]~,adOJ~:::: :::.:'-:' . ;,:,~ ::i . '::>r, ' ?:,e ,~,.~ ;~.,,,J .-"~:~,~o;, ~..~:, ;.)~ ~,'U:d ,:2 ':~i~ !!V-,, ::~IL:~. :.,d; ..~'-~: ':i!,i~-: ~:'-:':~. ~'&':::i'.,:~: 272 274 : · Pi~lL~A~mtt~ta~h:~~Mti~A~l~ ~r,~ '~&:~:r ::-ti::::~ V~:~.a ~i ."~v:..'d ~:~ :'i ~.,::-, ~ .... : .-~:: . , 274 275 2. ff the mt ~ reveals r~ ~ of mdo~ at or exceeding 0.02 workin8 levels (4 picoc~es/llter), Buyer wi~.,~, :7...,DAYS 275 276 of z~'ipt of the test re~ul~. 278 277.- .r-&..:. Oll~lii~;~: :.:.:,~,:;/. :,u_~,~E.~ ..:~,,. ,,..~.~-tu ~,,) ?.~to i~::'r'~(~l .:~d . .? 5:;u,,:~ :~, q~. or-..~u~.~ '.:l :m~u z_~R '.~.';:':~:ib~': --:;..,:r, ' . ". .: 271 : ..'....: b,.:, ~l:bil.t~h,~~all, de{xlllilB~M~ . '_. ~MJI~,W{II{~I~o~B~~]~to{~i.-.~ 280--. : :; .:~-; ~..:a~dihiw~r~twiik~a~O~;{l~D~:~i <d ~;~;~ -;,5 ,~, ¢.fl~J~.u n .,~;-aldoaq ::.:,,s-~: ~ ..~:~,~t s ,~ ::mA~r:~o:, .~ ........ . ..... 2m....- .:,-.r~ :~...-gmimt c~ pmmi,m~~~, · ~ tmj~,H~ti~a, mamammo, :..,,._ .... :: .:._. 2,3 (m..~,"..~:~_ -~:'-_~-- .... ,..;-~'<m~,~j~,,,,~..~~H ...~ ~o,~ o?~ -::,~:-~,,: ~: ~ ~<: _~.-: ~. ~.... ,.. ~, ~ '~:YZ, - ~' . . . .' . . ' 284 .i~j::~,.~,.~.,~..==~. _=~?..~,._,.~ ,'~'Uve proposai m wnung, ,n which case BUTer accepts the Pmpe~y and agrees to tbe 2114 288 ~'; , ..: : .. .... /. ~,~;e_*~" ~._'": "_ ~ ~.~-~--~iXO ~l~,~::orn ':~:..'~<, ~,,'ts ,.,'~*J~uu :J,~ ~,t~11 to ':ltlllqizm~../'~t~,~o! ',,':::~l~t','z ~o ,'~:~o,': :~. . .~:, 290 .:.~ , ~;i,:~. (b)~:~T~llllill~i~ ~1111~. tl~llblgiti~m~i~whidl, ea~o2all~ ' ' . o~[mt,~lll~ ~ be l~m!~=d: : 21~ 291 .... !, :'. % '.. ~i :':"~.gmompl~~~~'~,~.,,t.~z,~si~n t>;fU~ubnt 5~fli!sup '(d ~.~vm'tt!~':'~,,"~ :~' .:,:., :-.,; ~: . 293 a. Acceptthe Property in writJug and asz, eetotheP, ELEASEset forih~tMn~rilll]{~.oJrltlls>A{~{,,iz{~ll~+Ol~,::,..,~.,i : '. t . 294 b. Submit a v, miUen, corrective proposal to Seller. The corrective proposal will include, but not be Umited to, the name of thc certified miti- 294 295 gation company; provisions for payment, including retests; and a projected completion date for corrective measures. Seller will pay a max- 295 296 imum of $ toward the total cost of remediation and retests, which will be completed by settlemenc 296 297 (1) If the total cost of remediation and retests EXCEEDS the amoont specified in paragntph 11 (B) (Option 2) b, SeUer will, within 297 298 5 DAYS of receipt of the cost of remediation, notify Buyer in writing of Seller's choice to: 298 299 (a) Pay for the total cost of remediation and retests, in which case Buyer accepts the Property and agrees to the RI~.I.I~.ASE set forth 299 300 in paragraph 25 of this Agreement, OR 300 301 Co) Contribute toward the total cost of remediafion and retests only the amount specified in paragraph II(B) (Option 2) b. 301 302 (2) If Seller chooses not to pay for the total cost of remediation and retcsts, or if Seller fails to choose either olM!o_ n within the time 302 303 given, Buyer will, wi.thin ~ DAYS, notify Seller in v~iting of Buyer's choice to: ~'~ 303 304 (a) P~ the difference I~tween Seller's contribution t~ remediatiom and~retests and the actual cost ~f,.~ which case 304 305 Buyer accepts the Property and agrees to the RELEASE set forth in paragraph 25 of this Agreement, OR 305 '~23 2. Seller ~recs,W.~cate and pwvide access to the on-site (or ind/vidual) water system, if applicable, at Seller's expense, if required by the 32.3 324 inspection company. Seller also agrees to restore the Property, at Seller's expense, prior to settlement. 324 3~..-- } 3. If the report reveals that the water service does not meet the minimum standards of any applicable governmental authority and/or fails to 325 325 satisfy the requirements for quality and/or quantity set by the mortgage l~nder, if any, then Seller will, within 7 DAYS of receipt of 325 32? the report, notify Buyer in writing of Seller's choice to: · 327 323 a. Upgrade the, water service to the minim~lll acceptable levels, before settlement, in which case Buyer accepts the Property and agrees 328 329 to the IH~l I~ASE set forth in paragraph 25 of this Agreement, OR 329 331 4. If Seller choosa$ aot to uDgrade tbe service, to minimum acceptable levels, or fails to respomt within the time ~iven, Buyer will, within 332 ~ DAYS, e/~ ¥. 332 333 a. Accept th~ Proi~tty and the water service and, if required by the mortgage lender, if any, and/or any governmental authority, upgrade 333 33~ the water service befl3~ settlement-or.within the dine req~ed by the m(~gage lemter~//an~, and/or any ~,,ovenm~ntal. authority~ at.; 3~4 3as Buyer's expeme and with Seller's lmmissi°~ which will a~ be um~mm~ within4, md agr~ to ~ ~ ~E ~ f~ in ~- 33-~ 3.~6 graph 2~ of this A~mnem. If Seller ~i,,~ Buyes permissi~:ti~upgrada the water ~ Buyex may, within. 5 DAYS of 33s · ~40 to Buyer and this Ag~ment will.be VOID:. ~ ~4~ · ~ 13. STATUSOI~SEWl/aO-0~ ,.. ........ ; ..a,,a ~, .. ~ ~, ,. .... . , ~...a'.~ ..... 342 ' ~ ~:' ": "" ' ': '~'"" '* ~ ~' '"" '~'"~'"~ ' ' ''<' '~ ' ~ ~<: ''~ ".': -~ .. 341 ....... '- ' ' ~ ' ~' ':' ' ~".'~ -': -~"" '; ' %: '"'~ -': ~ ;': ,~-"-,~...~-;~ ?' ~l[~'~7~ ' - 343 344 [] Individu~ On-~.~..~....Vi,~, .~X~..~= ~w-,~"'-- _ , ', -~'~?.~ · ...~ ~ , . · .... ; ..... .: .,~'~:~"C~O~J~D ,; ~*,.)~I .~g~l :~i~[~t~g~[LV~l~::~ ! ,.: '. .... ,. ,~,; - 345 [] Indi~du~ On-lin Sewage Di~l Sy~m in Proximity m Well (See Sewage N~ice 1; se~'N'mice 4; if ~pplic~ble) 351 [] '~;' -: 35~ 1. Buyer has tbe optio~ within DAYS (1~ days if iiot sl~ci~ed) of the ~x~'ution of ~ Agreem~..~l!lltd/~~xpe~se' to 3~7 deliver to Seller a writt~ i~l~'~ion ~ by a quau~ed, pmfes~iomd ~ of d~ imti~idoal on-lot ~wa~ dispmal system. 357 3~5 2. Sellm at Seller'a ~xpe~, agree, if and a~ required by tbe i-,p~ctioa-comt~my, to locam, provid~ acce~ to and ~mlx7 tI~ individual on- 359 lot sewage dispmal system. Seller also agre~ to restore tbe Pmpe~, at Sell~'s ~Xl)~Um, prior to seal, mem. 36o 3. If tbe report reveab defects ttmt do not mqnim ~xpa~ion or mplace~m of tbe e~ting sewage disposal system, Seller will, withl. 3~ 7 DAYS of mc~ilx of tbe mpotk ~)tif7 Buyer in writi~ of SeJler'= choice to: 362 a. Correct th~ defects before settl~m~t, includi~ rem, at Seller's ~xpen~, in which ca~ Buyer ~ th~ Property and ag~c~ to 3~ 353 tbeR~.~ASE ~'t fo~ in paragraph 2~ ~f tl~ AS~'m~k OR 3~3 3~4 b. Not cormot tbe defects. 3S4 3~ 4. IfS~llercIm<)s~ottoc~rmctd~'d~.fects~orif~ller~"n"t~m~)ud~t~duthedme~I~a~Buyerwi1~ within $ DAYS,~itl~. 36e a. Acc~ the Property and tbe ~y~-m an d;-if required by t~ mort~ l~ler, if any, and/or any ~ovam~tal authority, correct tbe 361 defects before settlement or within the time required by the mortgage lender, if any, and/or any governmental authority, at Buyer's 367 358 sole expense and with Seller's pennissio~ which w~ not be umeasom~bly w/thl~ld, and agree to the R~:I F. ASE set fo~h in para- 3~ 3~9 graph 25 of this Agreement. If Seller denies Buyer permission to correct the defects, Buyer may, within ~ DAYS of Seller's 3S~ 370 ~~~-m'iting, in which case all deposit monies paid on account of pure.base price will be returned 373 371 l~--~.,~_s~..~~ _._ .... ~. Iwillbe. VOID, OR b .~.':- .~ ~ ' ~. . .... 371 373 pt.--.~ .~..~ ..... , WlJJ De VUJL). If .. . .~t~T~a,g~ ..~Bk,. . ..... 374 ~. .t~e ~ replace the exlstmg mdivKhlal on-lot sewage dispo~la] system, Seller may, within 25 DAYS 374373 376 rell)ealaO(~.~ .~~~...~l~t, ulc]~:ling 1~e~ts; ~ & projected completion date for correcti~ 11~..asures. W~thin 376 377 ~ DAYS of receiving Seller's correctiv~ pr°p°sal' or if n° ~ ~ h ~ withhl the time ~tvell, Buyer will: 377 378 a. Agree to the temps of the corrective proposaJ, if any, in writing, in which case Buyer accepts the Prope~7 and agrees to the Ri:.i .i=ASE 378 379 set forth in paragraph 25 of this Agrecme~t, OR 379 3s0 b. Accept the Pmpurty and the system and, if required by the mortgage lemier, i/any, and/or any govemm~tal authority, correct the 350 381 defects, before settlement or within the time ~ by the mo~ lender, if any, and/or any goverl~Ma~al authority, at Buyer's 381 382 sole expense and with Seller's permission, which will'not be um'easonab]y withheld, and agree to the I~T .I~,~.SE set forth in para- 382 383 graph 2~ of this Agreement. If Seller denies Buyer 13ermhsion to correct the defects, Buyer may, within ~ DAYS of Seller's 383 384 denial, terminate this Agreement in writing, in which'case au depmit znon]es paid on account of pumhase price will be returned 3S4 385 promptly to Buyer and this Agreement wi]] be ,VOID, OR 385 386 c. Terminate this Agreement in writing, in which case au deposit monies paid on account of purchase. ~)fice wi~ be returned prompdy 386 3s7 to Buyer and this Agreement will be VOID. 387 3s6 14. NOT[CF, S, ASSESSMENTS dc CERTIFICATES OF OCCUPANCY (1..02) 385 389 (A) Seller represents, as of Seller's execution of this Agreement, that no public improvement, condominium or homeowner association assessments 389 390 been made ag h re ..mare un.pa.~..d, and ~ no not/ce b..y any go.v .en~-..n.t. or public authority h~.>be~n served upon 390 391 ocucr or anyone on 3euer $ ~, LrlClUalng notices reLatlZlg to vwlalions of zoning, housing, building, safety or fire o~ which remain 391 392 uncorrected, and diet Seller knows of n~o condition that wonid constitute violation ~)f anY~such ordinances which remains 'uncorrected, un]ess 392 411 RE) If required 19y iew,*wi~hin* 15 DAYS of the execution of this Agreement Seller will order for delivery to Buyer, on or before settlement: 411 412 1. A certification from the appropriate municipal department or departments disclosing notice of any uncorrected violations of zoning, hons- 41 ~ -' lng, building, safety or fire ordinances, AND/OR 414 ,1! 4 2. A certificate permitting occupancy of the Property. In the event repairs/improvements are required for the issuance of the certificate, Seller 41 415 will, within ~ DAYS of Seller's' receipt of the requirements, notify Buyer of the requirements and whether Seller will make the 41 § required repairs/improveme, nts at Seller's expense. 417 ff Seller chooses to make the required repairs/improvements, Buyer agrees to accept the Property as repaired and agrees to the RELEASE set 418 forth in paragraph 25 of this Agreement. If Seller chooses not to make the required repairs/improvements, Buyer will, within ~ DAYS, 419 notify Seller in writing of Buyer's choice to terminate this Agreement OR make the repairs/improvements at Buyer's expense and with Seller's 41 420 permission, which will not be unreasonably withheld, ff Seller denies Buyer permission to make the required repairs or ff Seller fails to respond 421 within the lime ~iveo, Buyer may, within ~ DAYS, terminate this Agreement in writing, in which case all deposit monies paid on account 421 422 of purchase price will be returned promptly to Buyer and this Agreement will be VOID. 422 423 15. TITLE, SURVEYS & COSTS 0-02) 424 (A) The Property is to be conveyed free and clear of all liens, encumbrances, and easements, EXCEPTING HOWEVER the following: existing 424 425 deed restrictions, historic preservation restrictions or ordinances, building reslrictions, ordinances, easements of roads, easements visible upon 426 the ground, easements of record, privileges or rights of public service companies, if any; otherwise the title to the above described real estate 427 will be good and marketable and such as will be insured by a reputable Title Insurance Company at the regular rates. 427 428 (B) Buyer will pay for the following: (1) Title search, title insurance and/or mechanics lien insurance, or fee for cancellation of same, if any; 428 429 (2) Flood insurance, fire insurance with extended coverage, mine subsidence insurance, or fee for cancellation of same, if any; (3) Appraisal 430 fees and charges paid in sa'vance to mortgage lender, If any; (4) Buyer's customm'y seulement costs and accruals. 431 (C) Any survey or surveys which may be required by the Title Insurance Company or the abstracting attorney for the preparation of an adeqo~!e 432 legal description of the Property (or the correction thereof) will be secured and paid for by Seller. Any survey or surveys desired by Buyer or 432 43~ required by the mortgage lender will be secured and paid for by Buyer. 434 (D) In the event Seller is unable to give a good and marketable title and such as will be insured by a reputa~ble Title Company at the regular rates, as 434 435 specified in paragraph 15(A), Buyer will have the option of: (1) taking such title as Seller can give with no change to the purchase price; or (2) being.. 43S repaid all monies paid by Buyer to Seller on account of purchase price and being reimbursed by Seller for any costs incurred by Buyer for any impe~ _ tls 437 tions or certifications obtained according to the terms of the Agreement, and for those items specified in paragraph 15(B) items (1), (2), (3) snd i~.;:. 43s is(c), in which win be no r rther ll .or obLig on on eitber the pa. ies h .to Asr ment win bcd,ma VOn /: 43~ 16. G CLASSlHCATION (1-02) 440 FallU_r~ of this Agreement to contain the zoning classification (except m cases where the property { and each parcel thereof, if sulxiividable~ zene&~:~ 441 solely or primarily to permit single-family dwellings) will render this Agreement voidable at the option of the Buyer, and, if voided, an~deik~fils, 442 tendered by the Buyer will be W~irned to t~e Buyqr withctut any requirement, for court action. - 443 444 [] FL~CTED. Within 15 DAYS of the ex~ution of this Agreement, Buyer will verify that the existing use of the Property as 444 445 is permitted. In the event the use is not permitted, Buyer will, within the time 445 44~ given for veriflc~timl, notify Seller in writing that the existing use of the 1Tr6perty is not permitted and this Agreement will be VOID, in which 445 447 case ali deposit monies paid on account of purchase price will be returned promptly to Buyer. Buyer's faille to respomi within the time 447 449 £OA NOTIC 450 ~ NOT APPLICABLE 449 4.sl [] APPLICABLE ~ ~0 452 ~ ~ MAY NOT 5ELL, CONVEY, TRANSI~R, INCLUDE OR INSURE THE TITLE TO THE COAL AND RIGHT5 OF SUPPORT UNDERNEATH THE SURFACE LAND 452 4§3 DESCRIBED OR REI~EPd~D TO HERE/N, AND THE O9,~ql~R OR OWNER~ OF SUCH COAL MAY HAVE THE COMPLI~TE LEGAL RIGHT TO RE/~IOVE ALL SUCH COAL AND 453 4§4 IN THAT CONNECTION, DAMAGE MAY P~ULT TO THE ~URFACE OF TH~ LAND AND ANY HOUSE, BUILDING OR OTH~ ~TRUCTURE ON OR lN SUCH LAND. ~ 454 4~5 notice is set forth in the manner provided in seedon 1 of the Act of J.~y 17, 1957, P.L.984~) "B~er acknowledges that be may not be obtalning the 455 455 right of protection aga~ subsidence resulting from coal mlni~g operations, and that the property c~bed herein may be ~n-otected from damage 457 due to mine subsidence by a private contract with the owners of the economic interests in the coal. This acknowledgement is made for the purpose 459458 ~ ~Ye~d~ ~~~t~e ~tu~on~.gn ....... ~om ~~ oremudMineprovlslon.'S .ubsidence and the Land Conservation Act of April 27, 1966." Buyer agrees 461 464 execmloll of thts-,,~gt~mle~el~umess otherwise specified herein. Buyer will acknowledge existing lease(s) by iniu'aling said lease(s) at 4sS time of execution of this Ageement. 4ss 4~s (B) Seller will not enter into any new leases, written extension of existing leases, If any, or additional leases for the Property without the written 4s? consent of Buyer. 467 4Ss 19. RECORDING (3-85) This Agreement will not be recorded in the Office for the Recording of Deeds or in any other office or place of public record 4SS 459 and if Buyer causes or permits this Agreement to be recorded, Seller may elect to treat such act as a breach of this Agreement. 469 470 20. ASSIGNMENT (3-85) This Agreement will be binding upon the parties, their respective heirs, personal representatives, guardians and successors, 4?0 471 and to the extent assignable, on the assigns of the parties hereto, it being expressly understood, however, that Buyer will not transfer or assign this 471 472 Agreement without the written consent of Seller. 472 4?3 21. DEPOSIT & RECOVERY FUND (1-O2) '- 473 4?4 (A) Deposits paid by Buyer within 30 DAYS of settlement will be by cash, cashier's or certified check. Deposits, regardless of thc form of 474 4?5 payment and thc person desis~lted as payee, will be paid in U.S. Dollars to Broker or pray identified in paragraph 3(B), who will retain them 475 476 in an escrow account until consummation or termination of this Agreement in conformity with all applicable laws and regulations. Any uncashed 476 47? check tendered as deposit monies may be held pending the acceptance of this offer. 477 478 (B) Upon termination of this Agreement, the Broker holding the deposit monies will release the deposit monies in accordan~/'tll the terms of a 478 479 fully executed wr~ten agreement between Buyer and Seller. -~, . · 479 4S0 ~¢) In the event of a ¢llspute over entitlement to deposit monies, a broker holdix~_~ the ~*posiv monies is requix~d by the Rules and~Re'~ulations of 4~0 · 4~9 '" *THE FOLLO~G &P~LIES TO PROPERTIES THATARE PART OFA CONDOMINIUM ORA PLANNED COMMUNITY. 500 501 ,~) (A) Within DAYS~f~th~e~cut~n~f~tisA~greement,Se~erwd~sub~rmtarequestt~th~e~ass~iati~nf~aCerti~cate~fResaleandthe~ 50 uments sary to emm~e ~ener to comply w~th the Act. The Act prowdes that the assocumon ~s required to provide these documents within 50 ~8~'~ 10 days of Seller's request. 503 (B) Seller will promptly deliver to Buyer all documents received from the association. Under the Act, Seller is not liable to Buyer for the failure or 50 504 delay of the association to provide the Certificate in a timely manner, nor is Seller liable to Buyer for any en'oneous information provided by 50 sos the association and included in t~ Certificat~ 506 (C) Buyer may declare this .~t VOID at any time before Buyer's receipt o£ the association documentaand for 5 days thereafter, OR until 507 settlement, whichever occurs first. Buyer's notice dec'ladng this Agreement void must be in writing; thereafter all deposit monies will be 50 508 retomed to Buyer. . 50. 500 (D) In the event the.association ha5 the dF, hi to buy the Property (fight of first refusal), and the association exercises that right, Seller will reimburse 510 Buyer for all monies paid by Buyer on account of purchase price and for any costs incurred by Buyer for: (1) Title search, title insurance and/or 511 mechanics lien insurance,, or fee for cancellation of same, if a~y; (2) Flood.insurance and/or fire insurance with extended coverage, mine sub= 512 sidence insurance, or fee for cancellation of same, if any; (3) Appraisal fees and charges paid in advance to mortgage l~-nde_r, if any. 513 23. MAINTENANCE & RISKOF I.,O~ (1-0'a). 514 (A) Seller will maintain the Property, grounds, fixtures, and any personal property specifically scheduled hereto in its present condition, normal 51, 515 wear and tear exaepted. '" ' ..... : ' · -' . '" .... 5~ 516 (B) ~ntheeventanysys~m~rappllanceinc~udedinthesale~thePr~pen`yfalisandSe~erd~esn~e~ir.~re~ia.ce.. th~item, Seller will prompt~y 511 517 notify Buyer in writing of Seller's choice to: · ' - . 51~ 518 1, Repair e~'lm~dn~'~ fail~L~y, stem or appliance before settlement..~, czedi~ B~.~e~. a~ i~Nt]ol~j~r f~r. the f~r nmrket valu~ of the f~ed s~_ 51~ 519 tern. or appl~ ~ ot0~jlmmt..be acceptable to the mort~ lende~ i{: any). In. eaoh :casa~ Bu~. ~_~_c_~,pts. th~.Pro~ and agrees to 51', 520 the RELEASE set forth in para. apb 2~,of this Agreement, OR 52( 521 2. Not repah.~Olt t~place dl~..lraiie4. ~{~q~pp .liance, and~ no~ .c.=~dit ~tm~ m ,settiml~tmM=..:fa_~l th~ fair,,market value of the failed system or 52~ 522 · · · '- 524 vldll:, - . 527 530 prompuy recmvmg au momes pma on account of pt~chase priom~mgof acceptlng~ ~.~m its then condition together with the-Tpmce~.. ~3~ 534 If this me ' ' ' ' · - · ?-"~'- " =' ~<-~r. .... T~:.. ~ . .>. - . . , . .:. .... . .Ague.. nt Is_contingent on Buyer s right to respect and/°r'..lqi~~l]hl0q~[~t~ ~~ Bmms~mlm~.~itidm ~a~ gzi,t~l~ set forth in paragraph 2S of this Agreement - - ,,. , - . . '~ ~,~----~2~ " -' ....... 537 ':";:' :: ~' "'~'= :;n .~Cdi .;'~) ~:)~1~*>.~. ,~ ~'~'~ """' 'i~'~' 5~ CER or PARTNER of any one of them and any other PERSON, FIRM, .Oq.~ORRORA~O~?who ms.,~ It~/,~*t~.,a-,~ ~ ~ nny and nil ~lms, loeaes or demnnds, inelndino bot na, ihnl+,,a + ..... , ,=,_.., ........... ~ ,,,~mm-. -,., 539 541 of~ whet~ ~ kllowIt or ilot, wh{dl ~~{{ol{h..~. ~.~lo~{it~j~.,~~~~ p~t ~ §41 ~44 Buyer of any right to porsno nny rmmedies that may be avnilabl~ under law or equity. This re[~ aAtj~~ .:.. , s44 54{} ..... ' ' . .~-q~t".:~U'~ ;:,,;... ;:~-~2)~'.,~, '~,J:.~ -~"'.~l~ ~.~ :..~':L . ~.L .'? ' ,.. 549 covenants, i.~-= ........... ...-=.~ .... ' 'ndi' · · ~ .............. -'~- ' -. ....~ ....... ¥. :.- .... 't~.'_c~ t~ons, oral or otherwise of any kind whatsoever concemin,, this o~'- =.--~ ..... · · , ,.._.,__..~.:, ~~-_~.~.:::::~?.~x~,a~m,vm~ =~a~bs.~-,p~am~,,~.-.:.,:. :.: =, ~.:. ..... 550 551 ~B) ,, ~ _- - = ~1~[. ~ an independent exmnin~flon or determination of the structural sound~ms of the Property, the age or condition of the components, en~i- 554 555 romnentM condition~ the permitted uses, or of condi~ exis!t~:ln41Nqlo~ where the Property is situated; nor have they made a 555 556 mecl~ inspection of Imy of the sy~ contained there~L 556 558 (D) Broker(s) may perform sci'vices to assist unrepresented parties in complying with the terms of this Agreement..:., i 559 (E) The headings, captions, and line numbers in this Agreement arc meant only to make it easier to fmd the paragraphs. 559 560 27. DEFAULT (1-02) 560 561 (A) Seller has the option of retaining ali sums paid by Buyer, including the deposit monies, should Buyer: 55~ 562 1. Fail to make any additional payments as specified in paragraph 3; OR 562 563 2. Furnish false or incomplete information to Selier, Broker(s), or the mortgage lender, if any, concerning Buyer's legal or financial status, 563 564 or fail to cooperate in the processing of the mortgage loan application, which acts would result in the failure to obtain thc approval of a 564 565 mortgage loan conunilment; OR 565 566 3. Violate or fail to fulfill and perform any other terms or conditions of this Agreement. " 566 567 (B) Unless othe~ed in paragraph 27 (C), Seller may elect to~etain~ose ,t~ms paid by Buyer, including deposit's, in one of the 567 558 following manners: ', 569 1. On account of ourchs.~.~ nfl,-,-, cti~ ¢ 568 5~ ~A) The following are part of tl~ A~reement if checked: $8~ . ~ . I-I Sale & Settlement of Other Property l-I Settlement of Oth~ ~ Contiagency Addendum (PAR Form SOP) 5~"0"' 58 .Co. ntis. g~en .~. Add.end. ~u~..(P _A~, Form S_SP). [] ~na~]t~Occu. p,i ..~d~Pl~-o, perry. A~idendum (PAR Form TOP) 591 [] :~ale~vl~eRlem¢~°~u~l~rFropeI~(.:ontmge~lcY ,~ ~_~£~i!-~r -il,) ?',_~F,~/~(',~. ~'EI~ 1~,-~, , 592 with Right to Co~tlnue Madccq~g Addendum ~ ,o ' 3 ~ ,.1 ' · · /- SM 59 599 600 r/ '59 601 60 602 60 603 Buyer ami Seller acknowledge recdving ~ ~y ot this Agreemmt at t~e time of dpj~ 604 60; 6~ 606606 s~...a .~a..~. ~._~_ ~__~ _ ~.-NOTICE TO PARTIE~ WHEN SIGNED, THIS AGRI~SfENT IS A BINDING CONTRACT. Retrain by ~mi~ tr~mm~ (FAX) of tMs 60~ 607 m contour am auon~ b~ si~adx~ if fl~r dealre ~ advice. 606 60: 613 k, Stat~m~t before M.?h~_ tbk~!f .req~k~d.~ by lsw {~ee ].nfeem~fl~~ 615 ip=~z~m. _. -- .,.- --'~'-, 616 ' ~-' .....~ ~ ..... :"~--~'~, -~,':~i~ :;':T~:: .'-~:r~ , ,,.. , . ..... -~ , ~ ,, ; ~1! 619 BUYER'S CONTACT NUMBER(S): . . ~ ~i~Ji~-,f .:..?~.~,~-; .'.~>cl;~ 'a'i; ;~::~::,-::~ ,. ';,"~n -',:T--:?,:.-L~: ~.ao~ ,,,. :, .h .' ' 620 /", -~ ~~~~-.,,.;~.;'":'~.A' ' '- ~, '~ ....'_,~., ~ i. , " 623 - 622 625 ~ S,.q~ ; ~/ ...~ - ' ~ ?:"" ~:?¥ :'~g~. "': .... .~.., .. 628 ' " ' '"'"; :': ;~": ?~ "~"~' ~ ':'~" :'::'":'~: ' "~:~- ~': '~'.~:.,::,~-!a~:~;.',;~-'.,.,~ ~ . u7 629 ;~ :, tFl~'r sr.-' c'u" ~ ~I ~:?, 628 630 Seller hereby approves the above contract this (d-_~) ~ :,"' ,,~'.,.- ~,:,~L~, :.~ :~ ,-~-~' '~,,~: -:~., ?~'-~' '- ;;:~-:.,'- 'a' 629 .-,_'. '~ . 630 631 632' 631 633 632 634 633 63~ [] Sdl~ 635 638 ' 637 ,o .... , ,, 1..'7 a L(... . /~ ~.- · ,- ,, - -:,'! ~ - 'L." ..... ' .~ '.; ~ '.! ~ .... ~,.,,, . ~ . "' .... _il ,_ -[/' ;':9 : y: , . "' ~7 S~ ~ ~ ~LER DA~ 6so 651 650 654 ' ~1 ~s~ 655 /~ i A~ ~e ~ invnlv~ in ~ ~..~ k... ;.~ o-~ -~ ~,, ............. --~- ~-~ ...... 6~ ADDENDUM TO STANDAtLD AGREEMENT FOP,- THE sALE OF KEAL ESTATE The Seller is selling thc Property in its represe, l~tative capacity as Guazflian of the Estate of Mildred J. Oerber, an incapacitated person. The Seller is required pursuant to Section 5521Co) of the Probate, Estates and Fiduciaries Code to obtain court approval of the Orphans' Court prior to the sale of the Property. This Agreement of Sale and thc duties and obligations of the Buyer and Seller hereunder are contingent upon Seller receiving the approval of the Orphans' Court Division of the Court of Comrnon Pleas of Cumberland County (the "Orphans' Court") to sell the Property. Seller shall have sixty (60) days from the date of signing of this Agreement of Sale by Seller to obtain an order of the Orphans' Court approving the sale of the Property. Should the Orphans' Court fail to issue an order approving the. sale of the Property within such sixty (60) day period, Seller or Buyer may elect in writing to temfinate this Agreement of Sale. If this Agreement of Sale is terminated, all deposit monies paid on account of the purchase price shall be returned promptly to Buyer, this Agreement of Sale shall be null and void, and neither party shall have any further. obligations hereunder. If the Orphans' Court deni'es Seller's request for approval of the sale of the Property, this Agreement of Sale shall terminate, and any deposit monies paid on account of the purchase price shall bc returned promptly to Buyer, this Agreement shall be null and void, and neither party shall have any further obligations hereunder. Buyerlnitials ~'/~-~ SellerInitials ~~~~_~ ~ APPRAISAL OF REAL PROPERTY LOCATED AT: 623 Hilltop Drive Deed Book 22W, Page 387 New Cumberland, PA 17070-1721 FOR: PNC Advisors 4242 Cadisle Pike Camp Hill. PA 17011 AS OF: October 29, 2002 · I Borrower (Client) PNC Advisors JProperty Address 623 Hilltop Drive Rle No. 2-1028 R-1 JCity New Cumberland County Cumberland State PA 7ip Code 17070-1721 ILender PNC Advisors APPRAISAL AND REPORT IDENTIFICATION This appraisal conforms to one of the following definitions: [] Complete Appraisal (The act or process of estimating value, or an opinion of value, performed without Invoking the Departure Rule.) [] Limited Appraisal (The act or process of estimating, value, or an opinion of value, performed under and resulting from involdng the Departure Rule.) This report is one of the following types: [] Self Contained (A written report prepared under Standards Rule 2-2(a) of a Complete or Limited Appraisal performed under STANDARD 1 [] Summary (A written report prepared under Standards Rule 2-2(b) of a Complete or Limited Appraisal performed under STANDARD 1 [] Restricted (A written report prepared under Standards Rule 2-2(c) of a Complete or Limited Appraisal performed under STANDARD 1 for client use only,) Comments on Standards Rule 2-3 I certify that, to the best of my knowledge and belief: · The statements of fact contained in this report are true and correct. · The reported analyses, opinions, and conclusions are limited only by the reported assumptions and limiting conditions, and are my personal, impartial, and unbiased professional analyses, opinions and conclusions. · I have no (or the specified) present or prospective interest in the property that Is the subject of this report, and no (or the specofied) personal interest with respect to the parties involved. · I have no bias with respect to the property that is the subject of this report or the parties involved with this assignment. · My engagement in this assignment was not contingent upon developing or reporting predetermined results. · My compensation for completing this assignment is not contingent upon the development or reporting of a predetermined value or direction in value that favors the cause of the client, the amount of the value opinion, the attainment of a stipulated result, or the occurrence of a subsequent event directly related to the intended use of this appraisal. · My analyses, opinions and conclusions were developed and this report has been prepared, in conformity with the Uniform Standards of Professional Appraisal Practice. · I have made a personal inspection of the property that is the subject of this report. -Sean Monighan, my assistant, provided significant professional assistance to the certified Appraiser and did inspect the property. .. Comments on Appraisal and Report Identification Note any departures from Standards Rules 1-2, 1-3, 1-4, plus any LISPAP-related issues requiring disclosure: George Clauser Summary Report UNIFORM RESIDENTIAL APPRAISAL REPORT ~eNo. 2-1028 R-1 Address 623 Hilltop Drive OW New Cumberland State PA Zip Code 17070-1721 Deed Book 22W 387 County Cumberland Assessor's Parcel No. 26-24-0809-395 Tax Year 2002-03 R.E. Taxes $ 2,424.77 . PNC Current Owner Mildred J. Gerber Occu Leasehold Pro PUD NA ~roiect Name Drexel Hills Map Reference ADC Map #20-K4 Census Tract 0107.00 NA Date of Sale NA Description;and $ amount of loan charoes/concessions to be Paid by seller NA PNC Advisors Address 4242 Carlisle Pike, Camp Hill, PA 17011 ,l e C. Clauser SPA Address P. O. Box 777 PA 17001-777 Location ~ ;Urban Rural Predomlnan~ {Ingle family houalng Pre~ent land u~e% Land u~e change ~-- PRICE AGE- '~T · Built up ~ Over 75% [] 25-75% ~ Under 25% occupancy $(000) (yrs) One family 75 ~ Not likely ~ bkely Growth rate ~ Rapid [~ Stable [] Slow [] Owner 70 Low 1 2-4 family 5 [] In process Property values ~.' Increasing [] Stable ~ Declining [] Tenant 350 Hih 100+ Multi-family 5 To:vacant land to Demand/supply [] Shortage I~ In balance ~ Over supply [] Vacant (0-5%)~ Commercial 5 residential development Marketin.qtime [--] Under3mos. C~ 3-6mos. ~ Over6mos. [~ Var.(over5%) 125 25 Vacant 10 Note: Race and the racial eompoeltlon of the neighborhood are not appraisal factors, Neighborhood boundaries and characteristics: The subject neighborhood consists of New Cumberland Borough and surrounding municipalities in the the New Cumberland area of Cumberland County, PA. Factors that affect the marketability of the properties in the neighborhood (proximity to employment and amenities, employment stability, appeal to market, etc.): valued is located along the the east side of Hilltop Drive in the residential area known as Drexel Hills. Shopping, schools, located within 1-3 miles of the property. Full service shopping is available at the Capital City and Camp Hill malls, miles. Public school students attend the West Shore School District. Employment centers are located in Harrisburg, Camp and Mechanicsbur , Market conditions in the subject neighborhood (including support for the above conclusiOns related to the trend of property values, demand/supply, and marketing time -- such as data on competitive properUes for sale in the neighborhood, description of the prevalence of sales and financing concessions, etc.): Market conditions in the subject neighborhood are considered moderat~ely active with Iow mortgage interest rates being the primary catalyst. Sales in recent weeks have been moderately active. ApProximately 10 houses of various styles are for sale within 5 miles and are in. subject. TypiCal financing for residential properties includes 80% to 90% loan, 1-3 points, 6.5-7.5% mortgage inte¢est rates time is between 90 and 180 days. PmJectlnformatlon for PUDe (if applicable) - - Is the developer/builder in control of the Home Owners' AssociaUon (HOA)? [] Yes ~ No NA Approximate total number of units in the subject project NA Approximate total number of units for sale in the subject project.__ NA~' Oescdbe common elements and recreational facilities: NA :-.'~.: Dimensions 90' x 120' x 109.45' x 123.58' Topography Average Site area .28 acres Comer Lot [] Yes [] No Size Average Specific zoning classification and description R-1 Residence Shape Irregular Zoning compliance [~ Legal [] Legal nonconforming (Grandfathered use) [] Illegal [] No zoning Drainage Average Present use [--] Other use (ex~laln) View Average Utllltl~ Public Other / Off-alte Improvement~ Type Public Pdvate Landscaping Average Elecbicity []l Street Macadam [] [] Ddveway Surface Concrete & Macadam Gas [] Curb/gutter Concrete [] [] Apparent easements Of Record Only Water [] Sidewalk Concrete [] [] FEMA Special Flood Hazard Area [] Yes [] No Sanitary sewer [] Street lights None [] [] FEMA Zone X Map Date 02/16/'1977 Storm sewer ~ Alley None ~ [-~ ~ FEMA Map No. 4203660001B "' Comments (apparent adverse easements, encroachments, special assessments, slide areas, illegal or legal nonconforming zoning use, etc.): Landscaping exhibits mature shrubs and plantings. Subject is an interior lot on the east side of Hilltop Drive. There are no apparent easements, '~ encroachments assessments~ slide areas or illegal or I~, iai no~conforming uses known. i GENERAL DESCRIPTI~)N ..... EXTERIOR DESCRIPTION FOUNDATION BASEMENT INSULATION '"""' [] No. of Units One Foundation ConcrBIock Slab 0% Area Sq. Ft. 975 Roof [] No. of Stodes Two Extedor Walls Vinyl/Brick Crawl Space 0% % Rnished 0% Ceiling Avg,.;, [] [] Type (Det./Att.) Detached Roof Surface FG/Shngl Basement 100% Ceiling Susp/Unfin Walls Avg [] [] Design (Style) 2-story Gutters & Dwnspts. Aluminum Sump Pump No Walls ConcBIk/Pnl Floor Avg. [] [] Existing/Proposed Existing Window Type DblHung Dampness No Evidence Floor Concrete None '* [] Age (Yrs.) 39 Storm/Screens Screens Settlement No Evidence Outside En~ No Unlmo~_~ ~ Effective A~e (Yrs.) 15 Manufactured House No Infestation No Evidence ~ ROOMS Fever Livino Dinine Kitchen Den Family Rm. Rec. Rm. Bedrooms # Baths Laundry Other Area Sq. Ft. I Basement (Partial Finish Needl Redon~ 975 Level i 1 1 1 1 1 .5 975  Level 2 5 2 1,088 Finished area above grade contains: 9 Rooms; 5 Bedroom(s); 2.5 Bath(s); 2~063 Square Feet of Gross Livin,q Area INTERIOR Materials/Condition I HEATING KITCHEN EQUIP. A'I'rlC AMENITIES CAR STORAGE: Refrigerator '~ Fireplace(s) # r--~ Roors Carpet Ay9 Type Hot Air __~ None ~ 1 F__~P [] None Walls Drywall/Paneling.Avg ,.Fuel Gas ~.R.ange/O. ven ~[] ?airs.. . ~ I Patio_ . Rear [] Garage #of cars Summary Report UNIFORM RESIDENTIAL APPRAISA£ REPORT RleNo. 2-1028 R-1 I:~iiNIATED SITE VALUE ................................ .-- $ 40,000 Cumments on Cost Approach (such as, soume of cost estimate, site Value, ESTIMATED REPRODUCTION COST-NEW-OF IMPROVEMENTS: square foot calculation and for HUD, VA and FmHA, the estimated remaining Dwelling 2,062 Sq. Ft. @$ 70.00 = $ 144,340 economic life of the property): 975 Sq.R.@$ 20.00 = 19,500 = Source of Costs: Marshall Valuation Service and Local Garage/Carport 470 Sq. Ft. @$ 15.00 = 7,050 Contractors. < .... Total Estimated Cost New ................. $ 170,890 .... Less Physical Functional External E~timated remaining economic life of th~ Depreciation 51,267 I =$ 51,267 :. Depreciated Value of Improvements .......................... $ 119,623 "As-is" Value of Site Improvements ...........................$ 10,000 INDICATED VALUE aY COST APPROACH 169,623 ITEM I SUBJECT COMPARABLE NO. 1 COMPARABLE NO. 2 COMPARABLE NO. 3 623 Hilltop Drive 702 Hilltop Drive 606 Park Avenue · 105 Parkview Road Address New Cumberland New Cumberland New Cumberland New Cumberland 0.10 miles 0.07 miles 0.23 miles Sales Price NA 159 74.53 82.25 78.81 Data and/or Inspection CPML, CourthoUse, Realtor CPML, Courthouse, Realtor CPML, Courthouse, Realtbr NA VALUE ADJUSTMENTS DESCRIPTION DESCRIPTION ' DESCRIPTION DESCRIPTION Sales or Financing Conventional : Conventional Conventional 1-15-02 DOM 91 ~. 7-23-02DOM 193 12-31-01DOM 6 Suburban Suburban Suburban Suburban .28 Acres .37 Acres .32 Acres .25 Acres of Construction 39 40 36 Condition ual Above Grade Room Count Basement & Finished Full Full Full Full Rooms Below Grade Rec Room GHN CA OHW/CA OHW/No CA OFN No CA '"~ ' Efficient Items Insulation Insulation " Insulation Insulation Car Garage 2 Car Garage 1 Car Garage Car Garage Porch, Patio, Deck, Porch; Patio Screened Porch CvdPorch;Deck -1,000 Poroh;CvdPatio -1,000 1 FP 1 FP 1 FP 1 FP None None round Pool Enclosed Patio None None Shed -500 WetBar -' 860 Adjusted Sales Pdce 158 160 159 Comments on Sales Comparison (including the subject property's compatibility to the neighborhood, etc.): Sales used were all reasonal in hborhood and subject to reasonably similar amenities. AdJustments were based on market extraction and/or ment. The indicated value range on the above grid extends from $158,960 to $160,760. The indicated market value is estimated to be less of the value ra~ 000. FrEM SUBJECT COMPARABLE NO. 1 COMPARABLE NO. 2 COMPARABLE NO. 3 Date, Price and Data Not Applicable Not Applicable Not Applicable Not Applicable Soume, for prior sales Analysis of any current agreement of sale, option, or listing of subject property and analysis of any prior sales of subject and comparables within one year of the date of appraisal: an owner occupied 2-story style dwelling with a 2 car garage. sales within one year. INDICATED VALUE BY SALES COMPARISON APPROACH $ 159 INDICATED VALUE BY INCOME APPROACH (ff Applicable) Estimated Market Rent x This appraisal is made ~;~ "as is" ~ subject to the repairs, alterations, inspections or conditions listed below subject to completion per plans & specifications. Condilions of AppraJsal: If property is sold, subject to satisfactory termite and radon certifications with appraised value based on clear test results. Subject Photo Page IBon'ow~r~l~ (Client) PNC Adv~om Propmty Add~ess 623 Hilltop Drive City New Cumberland Count/ Cumberland State PA Zip Code 17070-1721 Lender PNC Advisors Subject Front 623 Hilltop Drive Saks Price NA Gross Living Area 2,062 Total Bedrooms 5 TotaJ Bathrooms 2.5 Location Suburban View Average $11~ .28 Acres (~a~/ Average Age 39 Subject Rear Subject Street Building Sketch (Page - 1) J Borr0wer/Cllent (Client) PNC Advisors Pmpe~ Address 623 Hilltop Drive City New Cumberland County Cumberland State PA Zip C0de 17070-1721 Lender PNC Advisors 37.5' 1/2 Bath 20.0' ~ Family Room Kitchen FIRST FLOOR ~ 2-Car Garage Uving Room Dining Room Foyer 37.5' 20.0' i Bedroom Bedroom Bedroom J I SECOND FLOOR Bath Bedroom Master Master Bedroom Bath 37.5' 37.5' Laundry - Partially Finished aASEMENT ~ Rec Room Storage Not Exact & Not to Scale 37.5' Comments: AREA CALCULATIONS: SUMMARY LIVING:AREA BR~3OVVN Code, D~a'lpflon~ Sl~e Net Torah Brea~::~ SUbtotals 43IAI GT.,X2 Se~oad rloo= 1087.50 1087.50 26.0 x 3?.5 9?5.00 B~vJ'~ B&I~n~ 9?5.00 915.00 8e~ot'td rloo~ GA~ GLCige 470.00 4?0.00 29.0 x 37.5 lO87.50 OFFICE OF THE BOROUGH SECRE[AR¥ l egistra ion of Property, New Cumberland, Pa. Owners or Agents must ~ill out this bi~nk, and brh~g ~amo with I. heir d~,ed that it tony be registered. Jr i.'opertythatisitdevisedmay bebYregia~red.Wili' ethic ,nme, nmi insert dat, or 'l)r.lml, ,mi Will Book, aud bring copy Jr property is iJlherited under tho intestat. In. wa, slate s.me .mi i.9ert dah, o~ de. th ami names of ali the own If properly is acquired by partilio. I.'m~eetlings, de~.'~...f tho ~h.l,lm.,~ C-.ri, etc., insert date of deoree W]iOl'O l'eeOl'tlod. If Ollflilge of IUUIIO ]Ul~ o~t~lll'rotl hv I't,lls,.i oF re. raj.ge etc., i.sert present name ................................................................................................ DEED B~K, ~ VO[.~ PRESENI OWNER WARD, Fred E. Gerber and Mildred J. Gerber, his wife. flOW ACQUIRED Deed , ................................................................................................ PLAN OF. [AXAB[E S~A[E REASON (Whi(.h must be flu exact copy of the dee(I, inoludi,g reei(.al, easements and reservation.) Only one deseril.)tion on Ihi~ i)hmk. · Other blanks fur.ishetb free I)y Ihe Ih)rough Secretary. BE61NNIN6 at a point on the eaat'ev~y ~ne o~ H~top Dv~ve~ ~0 Feet ~ved eaat~avd~7 and northwardly along H~ltop Dr~ve ~vom the southeast ~v o$ the 8ou~heP~7 ~flte~zec~on o$ H~op Dv~ve and Harrison D~ve ~hence northwardly a~ong 8a~d easterly ~tna o$ H~ltop Dr~ve b7 a curve to the left haven& a red, ua o~ ~6~$eet '~n ave d~stance o~ 25;h~ feet to a point o~ tangenoy; ~henee a~l~ northwardly along sa~d ~ne o~ H~top Dv~ve feet to a point; thefl~ eaatsavdly at r~&ht angles, and along the l~fle o~ ~ot No. ~9~ ~oek "X", ~20 See( to a point; thence by hnd no~ ~ovmev~y oF g~mev g. Z~mmevman ~h 19 degrees 17 m~nutea West to a point; thefleo ~eatwavdly a~ong the northern l~ne. o$ Lot ~o. gl~ Block ~eat~avdl7 ~ee~ to the place oF Beginning. Be(ag ~20 , Blook g~ on the Plan oF Section ~ Drexe~ H~2a~ 8a~d Plan be~ng veoovded ~n P~an Book 2~, Page ~, g~berland go~t7 Records. Hav~ng thereon erected a t~o story bv~clc and a~mn~fl~ d~e~ng ~th an attached t~o ear garage known aa and numbered.623 H~top Dv~ve. Flood Map J Borrower/Client (Client) PNC Advisors Property Address 623 Hilltop Drive Cily New Cumberland County Cumberland State PA Zip Code 17070-1721 Lender PNC Advisors TnterHeg'J II~ II ' ~ 623 Hilltop Dr F,o.~.~=,/~OOO~ New Cumb~edand, PA 17070-1721 ZONE FLOOD$OURCE 4203661X)01B Feioruery 16,1977 Location Map I I:lorrower/Client (Client) PNC Advisors Properly Address 623 Hilltop Drive Cib/ New Cumberland Coun~ Cumberland State PA Zip Code 17070-1721 Lender PNC Advisors Comparable Photo Page I Borrow~r/Cl~ml (Client) PNC Advisors Propely Addr~s 623 Hilltop Drive City New Cumberland Counly Cumberland State PA Zip Code 17070-1721 Lender PNC Advisors Comparable 1 702 HilRop Drive Pro[ to Subject O. 10 miles Sab Price 165,000 Gross Living Ama 2,214 Total Rooms 8 TolaJ Bedrooms 4 Total Balhrooms 2.5 Localion Suburban View Equal S~ .37 Acres (~ua~j Average Age 43 Comparable 2 Address 606 Park Avenue Pr~ to Sub~lct 0.07 miles Sab Price 159,900 Gross LMng Area 1,944 To~l Roon~ 8 Total Bedrooms 4 Total ~ 2.5 Localion Suburban Visw Equal Site .32 Acres QuaJlty Average Age 40 Comparable 3 Address 105 Parkview Road Prox. to Subject 0.23 miles Sab Price 178,500 Gross Living A~a 2,265 TotaJ Rooms 8 Total Bedrooms 4 Total Bathrooms 2.5 Localion Suburban View Equal S~ .25 Acres Qua~y Averaae SUPPLEMENTAL ADDENDUM File No. 2-1028 R-1 I Borrower/Client (Client) PNC Advisors I Property Address 623 Hilltop Drive City New Cumberland County Cumberland State PA Zip Code 17070-1721 Lender PNC Advisors PURPOSE AND FUNCTION OF APPRAISAL The purpose of the appraisal is to estimate the market value of the subject property as defined herein. The function of the appraisal is to assist the above named Lender in evaluatin.q the subject property for lendin.q purposes. This is a federally related transaction. EXTENT OF APPRAISAL PRocEss OR SCOPE OF THE APPRAISAL The appraisal is based on the information gathered by the appraiser from public records, othe~ ' identified sources, inspection of the subject property and neighborhood, and selection of comparable _._ sales within the subject market area. The original source of the comparables is shown in the Data source section of the market grid, along with the source of confirmation, if available. The original source is presented first. The sources and data ara considered reliable. When conflicting information was provided, the source deemed most reliable has been used. Data believed to be unreliable was not included in the report, nor used as a basis for the valuation conclusion. · . . SUPPLEMENTAL ADDENDUM FileNo. 2-1028 R-1 I Bon'ower/Client (Client} PNC Advisors Property Address 623 Hilltop Drive JOlty New Cumberland County Cumberland State PA Code Zip 17070-1721 Lender PNC Advisors SPECIAL CONDITIONS ADDENDUM The following checked items are specific special conditions that were identified by the appraiser during the inspection of the subject property, the incomparable sales, and their neighborhoods and locations. ~ 1. The subject is located in a rural area and is less than 25% built-up. The condition is typical and common for the area and DOES NOT affect the market value. X 2. Commercial uses are located within the subject's neighborhood. These uses are typical of similar neighborhoods and DO NOT affect the market value. X 3. Industrial uses are located within the subject's neighborhood. The presence of industrial uses, is typical for the neighborhood and DOES NOT affect the market value. X 4. Vacant and underdeveloped land uses are located within the subject's neighborhood. These uses. are typical for the ares and DO NOT affect the market value. ~ 5. The predominant value in the neighborhood is less than that of the market value of the subject property. This condition is due to the supedor qualities of the subject property as described in this report. This condition DOES NOT affect the market value. ~ 6. The subject property is located in a F. I. A. Identified Flood Zone. ~ 7. Dampness is noted in the basement of the subject. Standing or running water was not present on basement floor. X 8. The subject is older than five(5) years old. All mechanical systems including the heating, electrical and plumbing system appesrs upon a visual extedor Inspection to be in working order. No warranties are Implied in this statement. ~ 91 The electrical system was not connected during inspection. ~ 10. The water service was not connected during inspection. ~ 11. The heating system was shut down during inspection. ~ 12. Well and septic are common to the area. ' ~ 13. Repair items were noted in the comments section of the report. These comments on repair items are for descriptive purposes only and ~re not required repairs. The repair items are cosmetic in nature and DO NOT affect the market value. 14. Subject is new construction and was 90% completed on date of inspection. Compliance and completion inspections suggested pdor to settlement. X 15. Should property be sold, termite and radon certifications are suggested, with appraised value based on clear results. ~ 16. The land value exceeds 30% of total value due to the high demand for vacant land in this neighborhood. This condition is considered common and typical for the neighborhood and DOES NOT affect the market value. ~ 17. The land value exceeds 30% of total value. This Is due to the large size of the site. this condition is considered to be typical and common and DOES NOT affect there market value. ~ 18. Individual adjustments were required that exceed 10%. These adjustments were required due to_the lack of more similar r.~mparables on that individual rating. All three ~ comparables are the BEST AVAILABLE. 19. Total adjustments exceed 15%. This is due to the lack of comparables on that individual rating. All three comparables are the BEST AVAILABLE. X 20. One or more comparable sales are older than six(6) months old. Although there are comparable properties in the subject area, none have sold recently, therefore, sales in excess of six (6) months old had to be used. ~ 21. One or more of the comparables used were in excess of one(l) mile from the subject property. Although there are comparables in the i~medlate area, none have sold recently. Therefore, it was necessary to use comparable sales outside of the immediate area. All comparables used are located'in similar neighborhoods and within the same marketing area. All three comparables u~ed were the BEST AVAILABLE. ~ 22. Roofing certification is suggested. 23. Plumbing certification is suggested. ~ 24. Electrical certification is suggested. ~ 25. Heating certification is suggested. ~ 26. Flood Hazard Insurance is suggested. ' ' ~ 27. Seller is paying part or all of closing cost. This DOES NOT affect the market value. X 28. All comparable sales are closed sales. X 29. The subject property has not transferred in the past 12 months. X 30. This appraisal is a Summary Report with complete data retained'In appraisal file. DEFINITION OF MARKET VALUE: The most probable pdce which a property should bdng in a competitive and open market under all conditions requisite to a fair sale, the buyer and seller, each acting prudently, knowledgeably and assuming the pdce is not affected by undue stimulus. Implicit in this definition is the consummation of a sale as of a specified date and the passing of He from seller to buyer under conditions, whereby: (1) buyer and seller are typically motivated; (2) both parties are well informed or well advised, and each acting in what he considers his own best interest; (3) a reasonable time is allowed for exposure in the open market;, (4) payment is made in terms of cash in U.S. dollars or in terms of financial arrangements comparable thereto; and (5) the price represents the normal consideration for the property sold unaffected by special or creative financing or sales concessions* granted by anyone associated with the sale. * Adjustments to the comparables must be made for special or creative financing or sales concessions. No adjustments are necessary for those costs which are normally paid by sellers as a result of ffadi~on or law in a market area; these costs are readily identifiable since the seller pays these costs in virtually all sales transactions. Special or creative financing adjustments can be made to the .-. comparable property by comparisons to financing terms offered by a' third party institutional lender that is not already involved in the proper or ~'ansa~on. Any adjustment should not be calculated on a mechanical dollar for dollar cost of the financing or concession but the dollar amount of any adjustment should approximate the market's reaction to the financing or concessions based on the appraiser's ludgement. STATEMENT OF LIMITING CONDITIONS AND APPRAISER'S CERTIFICATION CONTINGENT AND LIMITING CONDITIONS: The appraiser's certification that appears in the appraisal report is subject to the follo~hg conditions: .~,., 1. The appraiser will not be responsible for matters of a legal nature that affect either the proper being appraised or the title to it. The appraiser assumes that the Utle is good and marketable and, therefore, will not render any opinions about the title. The propeRty is appraised on the basis of if being under responsible ownership. 2. The appraiser has provided a sketch in the appraisal report to show approximate dimensions of the improvements and the sketch is included only to assist the reader of the report in visualizing the property and understanding the appraiser's determinaton of its size. 3. The appraiser has examined the available flood maps that are provided by the Federal Emergency Management Agency (or other data sources) and has noted in the appraisal report whether the subject site is located in an identified Special .FI. God Hazard Area. Because the appraiser is not a surveyor, he or she makes no guarantees, express or Implied, regarding this determinaton. 4. The appraiser will not give tesUmony or appear In court because he or she made an appraisal of the propeRty in quesUon, unless specific arrangements to do so have been made beforehand. 5. The appraiser has estimated the value of the land in the cost approach at ifs highest and best use and the improvements at their cont]ibutory value. T~.ese separate valuatons of the land and improvements must not be used in conjunction with any other appraisal and are invalid if they are so u~ed. 6. The appraiser has noted in the appraisal report any adverse conditions (such as, needed repairs, depreciaton, the presence of hazardous wastes, toxic substances, etc.) observed during the inspection of the subject propeRty or that he or she became aware of during the normal research involved in performing the appraisal. Unless otherwise stated in the appraisal report, the appraiser has no knowledge of any hidden or unapparent conditions of the propeRty or adverse environmental conditions (including the presence of hazardous wastes, toxic substances, etc.) that would make the property more or less valuable, and has assumed that there are no such conditions and makes no guarantees or warranties, express or implied, regarding the condition of the propeRty. The appraiser will not be responsible for any such condiUons that do exist or for any engineering or testing that might be required to discover whether such conditions exist. Because the appraiser is not an expert in the field of environmental hazards, the appraisal report must not be considered as an environmental assessment of the propeRty. 7. The appraiser obtained the information, estimates, and opinions that were expressed in the appraisal report from sources that he or she considers to':§e reliable and believes them to be ITue and correct. The appraiser does not assume responsibility for the accuracy of such items that were furnished by other parties. 8. The appraiser will not disclose the contents of the appraisal report except as provided for in the Uniform Standards of Professional Appraisal Practice. 9. The appraiser has based his or her appraisal report and valuation conclusion for an appraisal that is subject to satisfactory completion, repai~s'~'~Or alterations on the assumption that compledon of the improvements will be performed in a workmanlike manner. .',,' 10. The appraiser must provide his or her pdor written consent before the lender/client specified in the aDDralsal report can distribute the anomisRl rLq. ndd APPRAISER'S CERTIFICATION: The Appraiser certifies and agrees that: 1. I have researched the subject market area and have selected a minimum of three recent sales of properties most similar and proximate to the subject property for consideration in the sales comparison analysis and have made a dollar adjustment when appropriate to reflect the market reaction to those items of significant variation. If a significant item in a comparable property is supedor to, or more favorable than, the subject property, I have made a negative adjustment to reduce the adjusted sales pdce of the comparable and, if a significant item in a comparable property is infedor to, or less favorable than the subject property, I have made a positive adjustment to increase the adjusted sales pdce of the comparable. 2. I have taken into consideration the factors that have an impact on value in my development of the estimate of market value in the appraisal report. I have not knowingly withheld any significant information from the appraisal report and I believe, to the best of my knowledge, that all statements and information in the appraisal report are We and correct. 3. I stated in the appraisal report only my own personal, unbiased, and professional analysis, opinions, and conclusions, which are subject only to the contingent and limiting cond~ons specified in this form. 4. I have no present or prospective interest in the property that is the subject to this report, and I have no present or prospective personal interest or bias with respect to the participants in the tTansaction. I did not base, either papally or completely, my analysis and/or the estimate of market value in the appraisal report on the race, color, religion, sex, handicap, familial status, or national odgin of either the prospective owners or occupants of the subject property or of the present owners or occupants of the propedJes in the vicinity of the subject property. 5. I have no present or contemplated future interest in the subject property, and neither my current or future employment nor my compensation for pedorming this appraisal is contingent on the appraised value of the property. 6. I was not required to report a predetermined value or dire~on in value that favors the cause of the client or any related party, the amount of the value estimate, the attainment of a specific result, or the occurrence of a subsequent event in order to receive my compansation and/or employment for performing the appraisal;; I did not base the appraisal report on a requested minimum valuation, a specific valuadoh', or. the need to approve a specific mortgage loan. 7. I performed this appraisal in conformity with the Uniform Standards of Professional Appraisal Practice that were adopted and promulgated by the Appraisal Standards Board of The Appraisal Found~on and that were in place as of the effective date of this appraisal, with the exception of the depaffure provision of those Standards, which does not apply. I acknowledge that an estimate of a reasonable tine for exposure in the open market is a condition in the definition of market val~e and the estimate I developed is consistent with the marking ~Ime noted in the neighborhood section of this report, unless I have otherwise stated in fie reconciliation section. 8. I have personally inspected the interior and extedor areas of the subject property and the exterior of all properties listed as comparables in the appraisal report. I further certify that I have noted any apparent or known adverse cond~ons in the subject improvements, on the subject site, or off any site within the immediate vicinity of the subject property of which I am aware and have made adjustments for these adverse conditions in my analysis of the property value to the extent that I had market evidence to support them. I have also commented about the effect of the adverse conditions on the marketability of the subject propeffy. 9. I personally prepared all conclusions and opinions about the real estate that were sat forth in the appraisal reporL ff I relied on significant professional assistance from any individual or individuals in the performance of the appraisal or the preparation of the appraisal report, I have named such individual(s) and disclosed the specific tasks performed by them in the reconeili~on section of this appraisal report. I certify that any individual so named is qualified to perform the tasks. I have not, authodzid anyone to make a change to any item in the report; therefore, if an unauthorized change is made to the appraisal report, I will take no responsibility for it. SUPERVISORY APPRAISER'S CERTIFICATION: If a supervisory appraiser signed the appraisal report, he or she certifies and agrees t~: I directly supervise the appraiser who prepared the appraisal report, have reviewed the appraisal report, agree with the statements and conclusions of the appraiser, agree to be bound by the appraiser's cerlfficadons numbered 4 through 7 above, and am taldng full responsibility for the appraisal and the appraisal report. ADDRESS OF PROPERTY APPRAISED: 623 Hilltop Drive, New Cumberland, PA 17070-1721 Signature: .~' ~ .... Name: Sean-Mor~n, Assistant to the A,~er Signature: ~ Name: (~eome C. C~er, Date Signed: O~'~ber 30, 2002 Date Signed: October 31~, 2002 State Certification #: State Certification #: General Appraiser GA: 000233-L or State License #: or State License #: MARK HECKMAN REAL ESTATE APPRAISERS Fie No. 623hillt APPRAISAL OF SINGLE FAMILY APPRAISAL LOCATED AT: 623 Hilltop Drive New Cumberland, PA 17070 FOR: PNC Bank/Attn: David Brown 4242 Carlisle Pike Camp Hill, PA 17011 BORROWER: NA AS OF: October 12, 2002 BY: Mark Heckman Real Estate Appraisers UNIFORM RESIDENTIAL APPRAISAL REPORT FHa No. 623hillt Address 623 Hilltop Drive City New Cumberland State PA 7_JpCode 17070 I Deed Book 22W, Page 387 Count)' Cumberland Assesso~sParcalNo. SEE MAP REFERENCE NUMBER TaxYs¥ 02/03 R.E. Taxes$ 2,371.87 SpecialAssessments$ -0- Bom)wer NA Cumsnt Owner Gerber, Fred/Mildred Occupant: [] Owner [] Tenant [] Vacant PUD [] Condominium (HUD/VA only) HOA$ -0- /Mo. Projed Name Drexel Hills Map Reference 26-24-0809-395 Cen~ua Tract 0107 Sale Price $ NA Date of Sate NA I:~cril~ion and $an, x~nt of loan charge~/concessione Io be paid I~ seler NA LenderlClianl PNC Bank/Attn: David Brown Address 4242 Carlisle Pike, Camp Hillr PA 17011 Mark W. Heckman Address 'I,~U~ urlo= · ~[ree[, mew* ~umDerlano~ ~A 1 iu/u Location [] Uftmn ~ Suburben ~,~ Rural Predominant Single family housing Presser land uss % Land uss change Suit up [] Over 75% U 25-75% ~ Under 25% occupancy sPRICE<~ AGE(~) One family 90% [] Not likaly [] Ukaly Pmp~ty vaiu*~ Increasing r~ Stable ~ Declining Tenant ........ 250 High 60 Mull~ To: Und~3m~ I I 3-6m~. L~ Over6mo~. v,=,~(~) 190 I 40 ,,Vacant ) 5% : Race and the racial compo~ltion of the neighborhood are not appraisal factors. Neighborhood boundaries and characterislic~: The subject property is located in the Borough of New Cumberland. Faclors that affect the rnarketability of the properties in the neighborhood (proximity to employment and amenities, employment stability, appeal to market, etc.): This suburban neighborhood has most public utilities available, relatively easy access to employment and services, and is competitive with other neiqhborhoods in the general area. Most have similar amenities. Market activity indicates averacje or better acceptance in the market place. No unfavorable factors were observed which would adversely effect marketability. Market conditions in the subject neighborhood (including support for the above conclusions related to the trend of properfy values, demand/supply, and marketing tim~ - - such aa data on competitive properties for sale in the neighborhood, description of the prevalence of sales and financing concessions, etc.): THIS IS A "COMPLETE APPRAISAL - SUMMARY REPORT". There are no foreseeable economic trends wh ch m ght significant y ~ence market conditions in this area. The current mortgage market offers a wide variety of conventional loans with competitive interest rates. As a result, the terms of financing have little, if any, impact on sale prices. If interest rates remain reasonable, property values and marketability should be good. ecl Information for PUDs (If applicable) - - Is the devaloper/builder in control of the Home Owners' Association (HOA)? [] YES [] NO Aplxoximale total numb~ of units in the subject project NA Approximate total numb~ of units for sale in the subject project Describe common elements and recreational facilities: Dimensions See Legal Description Topography Slight Slope Sila area .28 Ac Comer Lot [] Yes [] No Size Typical for area Specific zoning classification and description R-1 Residence Shape Rectangular Zoning compliance [] Legal [] Legalno~(Grand~hemduse) [~lllegal [] Nozoning Drainage Appears adequate Jest & best use as improved: [] Present use [] Other use (explain) View Average ltllltles Public Other Off-site Improvements Type Public Private Landscaping Average Electricity [] 100 amps Stree~ Asphalt [] [] Driveway Surface Asphalt Gas [] Curb/gutter Concrete [] [] Apparent easements None Observed Water [] Sidewalk Concrete [] [] FEMA Special Rood Haz=d Area [] Yes [] No Sanita~j sewer [] Street lights Standard [] [] FEMA Zone C Map Date 2/16/77 Stm'm=.,---"~'- [] None. Nie)' None [] [] FEMAMapNo. 420366B/H&I-01 ',apparent Jdver~e easements, encroachments, special assessments, slide areas, illegal or legal nonconforming zoning, use, etc.): Site has average ~rovements ,ical maintenance. The site improvements and services to the site are adequate and .... ~, ..... in this market. There are no _rr~arent adverse easements~ encroachments, or other adverse conditions on this site. IGENERAL DESCRIPTION EXTERIOR DESCRIPTION FOUNDATION BASEMENT INSULATION No. of Units 1 Foundation Co Block Slab No Area Sq. Ft. 950 Roof [] No. of Sto~ies 2 ExteriorWalb Brick/Vinyl O-MSpace None %Finished 0 Ceting Type(Dat./Alt,) Detached RoofSu~ce Shingle Basement Full Basement Ceiling Unfinished wal~ Design (Style) 2Sty+Bsmt Gultm & Dwnsp~s. Aluminum Sump Pump None Walls CB/Panel Floor Existing/Proposed Existing WimlowType Double Insul Dampnes~ None noted Floor Concrete None [] Agu (Yin.) 40 StomVScreens No/Yes Settlement None noted Outside EnW None u,~.~,,. ~ [] Effective Age (Yrs.) 20 Manufadured House No Infestation None noted r-~ ROOMS F~er Living Dining Kitchen Den Fame)' Rm. Rec. Rm. Bedrooms # Baths Laundn/ Other Area Sq. Ft. I~1 ~ X 95( Leve~ 2 5 2 1,06, lama above grade contains: 9 Rooms~ 5 Bedroor~s)i 2.5 aath(s)i 2~014 Square Feet of Gross Living Area Floors Vinyl/Cpt/HWdlA Type FA Reffigerato~ [][ None [] Fireplace(s) it 1.__ None [] Mark Heckman Real Estate Appraisers va~...o.s.¢.o. UNIFORM RESIDENTIAL APPRAISAL REPORT F,. NO. 623hillt ESTIMATED SITE VALUE ........................... = $ Commenls on Cost Approach (such as, source of cost estimate, ESTIMATED REPRODUCTION COST-NEW OF IMPROVEMENTS: site value, square foot calculation and for HUD. VA and FmHA, the Dwelling __ Sq. Ft. Q $~ - $ estimated remaining economic life of the properly): __Sq. Ft. Q$~ = ~ __ Sq. Ft. ~$ = Total Estimated Cost New = $ Le~s Physical I F' ' Est. Rermining Econ. Li~: Delxeciated Value of Imlxovemlnls ................... = $ · Aa-b" Value of Site mprovemenls ................... = $ INDICATED VALUE BY COST APPROACH ........... = ~; ITEM J SUBJECT COMPARABLE NO. 1 COMPARABLE NO. 2 COMPARABLE NO. 3 623 Hilltop Drive 105 Parkview Road 108 Valley View Road 702 Hilltop Drive Addm~ New Cumberland New, Cumberland New Cumberland New Cumberland Data and/or Inspection Assessment Records & MLS Assessment Records & MLS Assessment Records & MLS Vefi~cation Sources VALUEN~ DESCRIPTION DESCRIPTION ] +(.)$A~qu.... DESCRIPTION ] +(.)$Adju,tmm DESCRIPTION I Sales or Financing Conventional ', Conventional ,, Conventional ' Concessions None Known : None Known '. None Known Location Suburban/Good Suburban/Good " Suburban/Good ; Suburban/Good ; Fee Simple Fee Simple ,, Fee Simple : Fee Simple Site .28 Ac .25 Ac : .26 Ac : .37 Ac : -2~000 View Average Average ~ Average ~ Average 2 Story/Average 12 Story/Average : 2 Story/Good , -6,000 2 Story/Average ,. 'dComlmdim Average J Average : Better Than Ave : -6,000 Average ', 401eft 20 yrs. 32/eft 20 yrs. ; 381eft 20 yrs. ; 42/eft 20 yrs. Better Than Ave Good i -3,000 Ver~ Good ,' -6,0001 Better Than Ave ; ; ' Room count 91 5! 2.50 81 41 2.501 +4,000 8:, 4:. 2.501 +4,0001 8:, 4:. 2.50;, +4,000 2,014 Sq. Ft. 2,265 Sq. FI. : -5,000 2,244 Scl. Ft. : -4,600: 2,214 Sq. FI. : -4,000 Baeem~ & F~hed Full Basement Full Basement : Full Basement : Full Basement : Rooms Below Grade Unfinished Rec Room/Bath ; -6,000 Unfinished I Rec Room I -4,000 Functional Average Average , Average , Average , GFA/Central Air OFA/No Ct Air : +4~000 OHW/Central Air : OHWICentral Air : , Efr~i~ items Typ for Area Typ for Area ; Typ for Area ' Typ for Area ; 2 Car Garage/Afl 2 Car Garage/Att: 2 Car Garage/Att I 2 Car Garage/Att Po~.h, Patio, Deck. Porch & Patio PorchlCov. Patio : -1,000 Porch & Patio : Screen Porch : 1 Fireplace 1 Fireplace ,, 1 Fireplace I 1 Fireplace None None : Screen Porch : -4,000 None Other Good Kitchen Enclosed Po'rch : Excellent Kitchen : -4~000 Average Kitchen : +4~000 ~~ []. [] !$ 1,600 [] + [] ;$ 16,700 [] + [] !$ 3,000 Commanls on Sales Comparison (including the subject property's compatibility to tho neighborhood, etc. ): See Attached Addendum. · ITEM SUBJECT COMPARABLE NO: 1 COMPARABLE NO. 2 COMPARABLE NO. 3 I Date, Price and Data None No prior sale other No prior sale other No prior sale other S~mef~p~al~ than that listed above, than that listed above, than that listed above. w~hin year of app-ai~ of any current ag~ement of sate, option, or listing of the subject properly and analysis of any pmr sales d subjed and comparables wthin one year of the date of appraisal:. to information provided by the multi-list services in this region, the subject property has not been listed for sale within the tear. INDICATED VALUE BY SALES COMPARISON APPROACH ......... ~ ........................................... $ 175~00( i lNDICATEDVALUEBYINCOMEAPPI~:)ACH(IfAp~Iicable) EstimatedMarkatRenl$ N/A /Uo. xGmesRe~Mu~¥~r NIA =$ N/ This appraisal is made [] "as is' 1~ sul:ied to the mpei~, Meralions, bal3ediom or mndiliom liaqd bdow [] ..,hied to cohesion per plans and sp~;.'.;a~ior~ CondtbnsofAmmi.~. This ap~)raisal report has been prepared with the property in "as is' condition. No repairs are needed or required. ADDENDUM ' Borr°Wer: NA File No.: 623hillt Property Addrese: 623 Hilltop Drive Case No.: .City: New Cumberland State: PA Zip: 17070 Lender: PNC BanldAttn: ~ Brown Comments on Sales Comparison Days on market: Comparable No. 1:6 days; Comparable No. 2:6 days; Comparable No. 3:91 days. After a thorough search of all available market data, the three sales used are considered to be the best indicators of value. In order to find comparable sales it was necessary to use less recent sales. Time adjustments are based on appropriate research of the market data in the market area. Appropriate adjustments have been made for all differences. AJI three sales are considered to be reliable indicators of value, and are weighted similarly in the final reconciliation. Comparable sales used are all closed sales. All three comparable sales are located in the same market area as the subject and would be considered by the same prospective purchaser of all were on the market at the same time as the subJect. Final Reconciliation This appraisal assumes a reasonable marketing period for the subject property of four months. The Sales Comparison Analysis reflects recent activity in the market place and is given the most weight. The Income Approach is inappropriate because few single family houses are rented in this market. In view of the age of these improvements, the Cost approach cannot be considered an accurate indicator of value. DIMENSION LIST ADDENDUM IBorrower: NA File No.: 623hillt Property Address: 623 Hilltop Drive Case No.: City: New Cumberland State: PA Zip: 17070 GROSS BUILDING AREA (GBA) 2,964 GROSS LIVING AREA (GLA) 2,014 Are~(s) Area % of GBA Lkin~ 2~014 67.95 Lev~ 1 950 32.05 Level 2 1,064 35.90 Level 3 Basement 950 32.05 Area Measurements Area Type Measurements Factor Total Level t Level 2 Level 3 Other Bsmt. Garage .oox_x o.oo l X ~ X = x ~ ~ 0 0 x x ~ 0 0 , x = 0 0 X X = x x .= 0 0 0 0 , x = 0 0 0 0 x x . 0 0 0 0 x x . 0 0 0 0 x x = 0 0 0 0 x x X X = X X = X X x x = 0 0 0 0 0 x x = ~ 0 0 0 0 0 x x = 0 0 0 0 0 File No. 623hillt DEFINITION OF MARKET VALUE: The most probable price which a property should bring in a competitive and open market under all conditions requisite to a fair sale, the buyer and seller, each acting prudently, knowledgeably and assuming the price is not affected by undue stimulus. Implicit in this definition is the consummation of a sale as of a specified date and the passing of title from seller to buyer under conditions whereby: (1) buyer and seller are typically motivated; (2) both parties are well informed or well advised, and each acting in what he considers his own best interest; (3) a reasonable time is allowed for exposure in the open market; (4) payment is made in terms of cash in U.S. dollars or in terms of financial arrangements comparable thereto; and (5) the price represents the normal consideration for the property sold unaffected by special or creative financing or sales concessions* granted by anyone associated with the sale. *Adjustments to the comparables must be made for special or creative financing or sales concessions. No adjustments are necessary for those costs which are normally paid by sellers as a result of tradition or law in a market area; these costs are readily identifiable since the seller pays these costs in virtually all sales transactions. Special or creative financing adjustments can be made to the comparable property by comparisons to financing terms offered by a third party institutional lender that is not already involved in the property or transaction. Any adjustment should not be calculated on a mechanical dollar for dollar cost of the financing or concession but the dollar amount of any adjustment should approximate the market's reaction to the financing or concessions based on the Appraiser's judgment. STATEMENT OF LIMITING CONDITIONS AND APPRAISER'S CERTIFICATION CONTINGENT AND LIMITING CONDITIONS: The appraiser's certification that appears in the appraisal report is subject to the following conditions: 1. The appraiser will not be responsible for matters of a legal nature that affect either the property being appraised or the title to it. The appraiser assumes that the title is good and marketable and, therefore, will not render any opinions about the title. The property is appraised on the basis of it being under responsible ownership. 2. The appraiser has provided a sketch in the appraisal report to show approximate dimensions of the improvements and the sketch is included only to assist the reader of the report in visualizing the property and understanding the appraiser's determination of its size. 3. The appraiser has examined the available flood maps that are provided by the Federal Emergency Management Agency (or other data sources) and has noted in the appraisal report whether the subject site is located in an identified Special Flood Hazard Area. Because the appraiser is no~ a surveyor, he or she makes no guarantees, express or implied, regarding this determination. 4. The appraiser will not give testimony or appear in court because he or she made an appraisal of the property in question, unless specific arrangements to do so have been made beforehand. 5. The appraiser has estimated the value of the land in the cosf approach at its highest and best use and the improvements at their contributory value. These separate valuations of the land and improvements must not be used in conjunction with any other appraisal and are invalid if they are so used. 6. The appraiser has noted in the appraisal report any adverse conditions (such as, needed repairs, depreciation, the presence of hazardous wastes, toxic substances, etc. ) observed during the inspection of the subject property or that he or she became aware of during the normal research involved in performing the appraisal. Unless otherwise stated in the appraisal report, the appraiser has no knowledge of any hidden or unapparent conditions of the property or adverse environmental conditions (including the presence of hazardous wastes, toxic substances, etc. ) that would make the property more or less valuable, and has assumed that there are no such conditions and makes no guarantees or warranties, express or implied, regarding the condition of the property. The appraiser will not be responsible for any such conditions that do exist or for any engineering or testing that might be required to discover whether such conditions exist. Because the appraiser is not an expert in the field of environmental hazards, the appraisal report must not be considered as an environmental assessment of the property. 7. The appraiser obtained the information, estimates, and opinions that were expressed in the appraisal report from sources that he or she considers to be reliable and believes them to be true and correct. The appraiser does not assume responsibility for the accuracy of such items that were furnished by other parties. 8. The appraiser will not disclose the contents of the appraisal report except as provided for in the Uniform Standards of Professional Appraisal Practice. 9. The appraiser has based his or her appraisal report and valuation conclusion for an .appraisal that is subject to satisfactory completion, repairs, or alterations on the assumption that completion of the improvements will be performed in a workmanlike manner. 10. The appraiser must provide his or her prior written consent before the lender/client specified in the appraisal report can distribute the File No. 623hillt APPRAISERS CERTIFICATION: The Appraiser certifies and agrees that: 1. I have researched the subject market area and have selected a minimum of three recent sales of properties most similar and proximate to the subject property faa consideration in the sales comparison analysis and have made a dollar adjustment when appropriate to reflect the market reaction to those items of significant variation. If a significant item in a comparable property is superior to, or more favorable than, the subject property, I have made a negative adjustment to reduce the adjusted sales price of the comparable and, if a significant item in a comparable property is inferior to, or less favorable than the subject property, I have made a positive adjustment to increase the adjusted sales price of the comparable. 2. I have taken into consideration the factors that have an impact on value in my development of the estimate of market value in the appraisal report. I have not knowingly withheld any significant information from the appraisal report and I believe, to the best of my knowledge, that all statements and information in the appraisal report are true and correct. 3. I stated in the appraisal report only my own personal, unbiased, and professional analysis, opinions, and conclusions, which are subject only to the contingent and limiting conditions specified in this form. 4. I have no present or prospective interest in the property that is the subject to this report, and I have no present or prospective personal interest or bias with respect to the participants in the transaction. I did not base, either partially or completely, my analysis and/aa the estimate of market value in the appraisal report on the race, color, religion, sex, handicap, familial status, or national origin of either the prospective owners or occupants of the subject property or of the present owners or occupants of the properties in the vicinity of the subject property. 5. I have no present or contemplated future interest in the subject property, and neither my current or future employment nor my compensation for performing this appraisal is contingent on the appraised value of the property. 6. I was not required to report a predetermined value or direction in value that favors the cause of the client or any related party, the amount of the value estimate, the attainment of a specific result, or the occurrence of a subsequent event in order to receive my compensation and/aa employment for performing the appraisal. I did not base the appraisal report on a requested minimum valuation, a speci~ valuation, or the need to approve a speci~c mortgage loan. 7. I performed this appraisal in conformity with the Uniform Standards of Professional Appraisal Practice that were adopted and promulgated by the Appraisal Standards Board of The Appraisal Foundation and that were in place as of the effective date of this appraisal, with the exception of the departure provision of those Standards, which does not apply. I acknowledge that an estimate of a reasonable time for exposure in the open market is a condition in the definition of market value and the estimate I developed is consistent with the marketing time no{ed in the neighborhood section of this report, unless I have otherwise stated in the reconciliation section. 8. I have personally inspected the interior and exterior areas of the subject property and the exterior of all properties listed as comparables in the appraisal report. I further certify that I have noted any apparent or known adverse conditions in the subject improvements, on the subject site, or on any site within the immediate vicinity of the subject property of which I am aware and have made adjustments for these adverse conditions in my analysis of the property value to the extent that I had market evidence to support them. I have also commented about the effect of the adverse conditions on the marketability of the subject property. 9. I personally prepared all conclusions and opinions about the real estate that were set-forth in the appraisal report. If I relied on significant professional assistance from any individual aa individuals in the perfaamanca of the appraisal or the preparation of the appraisal report, I have named such individual(s) and disclosed the specific tasks performed by them in the reconciliation section of this appraisal report. I certify that any individual so named is qualified to perform the tasks. I have not authorized anyone to make a change to any item in the report; therefore, if an unauthorized change is made to the appraisal report, I will take no responsibility for it. 10. This appraisal is based on readily observable conditions and is not to be considered as a thorough home inspection to analyze or warrant the subject property and/or its mechanical systems. SUPERVISORY APPRAISER'S CERTIFICATION: If a supervisory appraiser signed the appraisal report, he or she certifies and agrees that: I directly supervise the appraiser who prepared the appraisal report, have reviewed the appraisal report, agree with the statements and conclusions of the appraiser, agree to be bound by the appraiser's certifications numbered 4 through 7 above, and am taking full responsibility for the appraisal and the appraisal report. ADDRESS OF PROPERTY APPRAISED: 623 Hilltop Drive, New Cumberland, PA 17070 APPRAISER: SUPERVISORY APPRAISER (only If required) Mark Heckman Real Estate Appraisers USPAP COMPLIANCE ADDENDUM File No. 623hillt Borrower NA Order # Property Add~m 6:23 Hilltop Drive City New Curnbe~and County Cumberland state PA Zip Code 17070 Lender/Client PNC Bank/Attn: David Brown Client Reference # Only tho$~t items checked[X--'] below apply to this report. [] The purpose ofthe appraisal is to provide an opinion of market value orthe subject property as defined in this report, on behalf of the appraisal company facilitating the assignment for the referenced client as the intended user of the report. The only function of the appraisal is to assist the client mentioned in this report in evaluating the subject property for lending purposes. The use of this appraisal by anyone other than the stated intended user, or for any other use than the stated intended use, is prohibited. [] The purpose of the appraisal is to provide an opinion of market value of the subject property, as defined in this report, on behalf of the appraisal company facilitating the assignment for the referenced client as the intended user ofthis report. The only function of the appraisal is to assist the client mentioned in this report in evaluating the subject property Real Estate Owned (REO) purposes. The use ofthis appraisal by anyone other than the stated intended user, or for any other use than the stated intended use, is prohibited. []The purpose of this appraisal is to , on behal f of the appraisal company facilitating the assignment for the referenced client aa the intended user of this report. The only function of the appraisal is to assist the client mentioned in this report in evaluating the subject property for . The use of this appraisal by anyone other than the stated intended user, or for any other use than the stated intended use is prohibited.  This is a Complete Appraisal written in a Summary Report format and the USPAP Departure Rule has no~t been invoked. This is a Limited Appraisal written in a Report format and the USPAP Departure Rule has been invoked as disclosed in the body or addenda of the report. The client has agreed that a Limited Appraisal is sufficient for its purposes. [] The appraisal is baaed on the information gathered by the appraiser from public records, other identified sources, inspection of the subject property and neighborhood, and selection of comparable sales, listin8~, and/or rentals within the subject market area. The original source of the comparables is shown in the Data 8cures section of the market grid ales8 with the source of confirmation, if available. The original source is presented first. The sources and data are considered reliable. When conflictin8 information was provided, the source deemed most reliable has been used. Data bqlieved to be unreliable was not included in the report nor used as a basis for the value conclusion. The extent of analysis applied to this assignment may be further imparted within the report, the Appraiser's Certification below and/or any other Statement of Limiting Conditions and Appraiser's Certification such as may be utilized within the Freddie Mac form 439 or Fannie Mae form 1004b (dated 6/93), when applicable. [] A reasonable marketing time for the subject property is 120 day(s) utilizing market conditions pertinent to the appraisal assignment. [] A reasonable exposure time for thc subject property is day(s). i certify that, to the best of my knowledge and belief: The statements of feet contained in this report are true and correct. The r~eported ~nalyses, opinions, and conclustions are limited only by the reported assumptions and limiting conditions, and are my personal, impartial, and unbiased professional analyses, opinions, and conclusions. I have no present or prospective interest in the property that is the subject of this report, and no personal interest with respect to the parties involved, unless otherwise stated within the report. I have no bias with respect to the property that is the subject of this report or to the parties involved with this assignment. My engagement in this assignment was not contingent upon developing or reporting predetermined results. My compensation for completing this assignment is not contingent upon the development or reporting of a predetermined value or direction in value that favors the cause of the client, the amount of the value opinion, the attainment cfa stipulated result, or the occurrence cfa subsequent event directly related to the intended use of this appraisal. My analyses, opinions, and conclusions were developed, and this report has been prepared, in conformity with the Uniform Standards of Professional Appraisal Practice. I have [] or have not [] made a personal inspectiot~ ofthe property that is the subject of this report. (if more than one pe~on signs this report, this certification must clearly specify which individuals did and which individuals did not make a personal inspection of the appraisal property.) No one provided significant professional assistance to the person signing this report. (If there are exceptions, the name of each individual providing significant professional assistance must be stated.) NOTE: In the case of'any conflict with a client provided certifcatton O.e.. Fannie Mae or Freddie Mac). this revised certification shall take precedence. Supervisory Appraiser's Certification: If a supervisory appraiser signed the appraisal report, he or she certifies and agrees that: I directly supervise the appraiser who prepared the appraisal report, have reviewed the appraisal report, agree with the statements and conclusions of the appraiser, agree to be bound by the appraiser's certifications numbered 2-7 and 9 on the second page of Freddie Mac Form 439 6-93/Fannie Mae Form 1004B 6-93, or the third page of Form 2055, and am taking full responsibility for the appraisal report. JBorrower: NA SUBJECT PROPERTY PHOTO ADDENDUM ~ Hilltop Drive FiFe N_____o.: 6'---'~3hillt Case No.: New Cumberlan~J State: PA ~ 17070 FRONT VIEW OF SUBJECT PROPERTY Appraised Date: 10/12/02 Appraised Value: $175,000 REAR VIEW OF SUBJECT PROPERTY STREETSCENE SUBJECT PROPERTY PHOTO ADDENDUM IB~rower: NA File No.: 623hillt Property Address: 623 Hilltop Drive Case No.: City: New Cumberland State: PA Zip: 17070 FRONT VIEW OF SUBJECT PROPERTY Appraised Date: 10/12/02 Appraised Value: $175,000 REAR VIEW OF SUBJECT PROPERTY STREETSCENE COMPARABLE PROPERTY PHOTO ADDENDUM Borrower: NA File No.: 623hillt ~ddres$: 623 Hilltop Drive Case No.: ~w Cumberland State: PA ~17070 COMPARABLE SALE #1 105 Parkview Road New Cumberland Sale Date: 12/28/01 Sale Price: $178,500 COMPARABLE SALE #2 108 Valley View Road New Cumberland ,. Sale Date: 8116/01 Sale Price: $197,000 COMPARABLE SALE #3 702 Hilltop Drive New Cumberland Sale Date: 1/15/02 SKETCH ADDENDUM 62,3 Hilltop Drive SUBJECT PROPERTY PHOTO ADDENDUM Borrower: Timothy C, Jo}, M.. Losh File No.: 1200302 Property Address: 628 Hilltop Drive Case No.: 26-24-0809-395 City: New Cumbcrlaad State: PA Zip: 17070 Lender: n/a FRONT VIEW OF SUBJECT PROPERTY REAR VIEW OF SUBJECT PROPERTY STREET SCENE ORIGINAL COMPARABLES PHOTO ADDENDUM Borrower: Timothy C~ Joy M.. Losh File No.: 1200302 Property Address: 628 Hilltop Drive Case No.: 26-24-0809-395 City: lq~v Cumberland State: PA Zip: 17070 Lender: n/a COMPARABLE SALE #1 105 Parkvlew Road New Cumberland Sale Date: 12/01 Sale Prie~: $178,500 COMPARABLE SALE #2 108 Valley View Road New Cumberland Sale Date: 8/01 Sale Price: $197,000 COMPARABLE SALE #3 702 Hilltop Drive New Cumberland Sale Date: 1/02 Sale Price: $165,000 26-24-0809-395 File No. 1200302 DEFINITION OF MARKET VALUE: The most probable price which a property should bring in a competitive and open market under all conditions requisite to a fair sale, the buyer and seller, each acting prudently, knowledgeably and assuming the price is not affected by undue stimulus. Implicit in this definition is the consummation of a sale as of a specified date and the passing of title from seller to buyer under conditions whereby: (1) buyer and seller are typically motivated; (2) both parties are well informed or well advised, and each acting in what he considers his own best interest; (3) a reasonable time ia allowed for exposure in the open market; (4) payment is made in terms of cash In U.S. dollars or in terms of financial arrangements comparable thereto; and (5) the price represents the normal consideration for the property sold unaffected by special or creative financing or sales concessions* granted by anyone associated with the sale. SCOPE OF REVIEW: The scope of this review is limited to the information being provided by the original appraiser; form an opinion as to the apparent adequacy and relevance of the data and the propriety of any adjustments to the data; form an opinion as to the appropriateness of the appraisal methods and techniques used and develop the reasons for any disagreement; form an opinion as to whether the analyses, opinions, and conclusions in the report under review are appropriate and reasonable, and develop the reasons for any disagreement. CERTIFICATION AND STATEMENT OF LIMITING CONDITIONS: CERTIFICATION: The Reviewer certifies and agrees that, to the best of his/her knowledge and belief: 1. The facts and data reported by the Reviewer and used in the review process are true and correct. 2. The analyses, opinions, and conclusions in this review report are limited only by the assumptions and limiting conditions stated in this review report, and are my personal, unbiased professional analyses, opinions, and conclusions. 3. Unless stated elsewhere, I have no present or prospective interest in the property that is the subject of this report and I have no personal interest or bias with respect to the parties involved. 4. My compensation is not contingent on an action or event resulting from the analyses, opinions, or conclusions in, or the use of, this review report. 5. My analyses, opinions, and conclusions were developed and this review report was prepared in conformity with the Uniform Standards of Professional Appraisal Practice. 6. Unless stated elsewhere in this report, I did personally inspect the subject property. 7. No one provided significant professional assistance to the person signing this review report. CONTINGENT AND LIMITING CONDITIONS: The certification of the Reviewer appearing in the review report is subject to the following conditions and to such other specific and limiting conditions as are set forth by the Reviewer in the review report. 1. The Reviewer assumes no responsibility for matters of a legal nature affecting the property which is the subject of this review or the title thereto, nor does the Reviewer render any opinions as to the title, which ia assumed to be good and marketable. 2. The Reviewer is not required to give testimony or appear in court because of having made the review, unless arrangements have been previously made therefor. 3. The Reviewer assumes that there are no hidden or unapparent conditions of the property, subsoil, or structures, which would render it more or less valuable. The Reviewer assumes no responsibility for such conditions, or for engineering which might be required to discover such factors. 4. Information, estimates, and opinions furnished to the Reviewer, and contained in the review report, were obtained from sources considered reliable and believed to be true and correct. However, no responsibility for accuracy of such items furnished the Reviewer can be assumed by the Reviewer. 5. Disclosure of the contents of the report is governed by the Uniform Standards of Professional Appraisal Practice and the Bylaws and Regulations of the professional appraisal organizations with which the Reviewer is affiliated. 6. Neither all, nor any part of the content of the review report, or copy thereof (including the conclusions of the review, the identity of the Reviewer, professional designations, reference to any professional appraisal organizations, or the firm with which the Reviewer is connected), shall be used for any purposes by anyone but the client specified in the review report, its successors and assigns, professional appraisal organizations, any state or federally approved financial institution, any department, agency, or Instrumentality of the United States or any state or the District of Columbia, without the previous written consent and approval of the Reviewer. 7. No change of any item in the review report shall be made by anyone other than the Reviewer and the Reviewer shall have no responsibility for any such unauthorized change. Tammie K. Sheaffer PROFESSIONAL QUALIFICATIONS EDUCATION Johns Hopkins University, Baltimore, Maryland MS, Real Estate, Investment Portfolio Emphasis, 1999 Pennsylvania State University, Pennsylvania BS, Public Policy, 1987 LICENSEE · Real Estate Broker's License - Pennsylvania and Maryland · General Appraiser's Certification, 1991 TESTIMONY District of Columbia, Harrisburg, and York Bankruptcy Courts; York County Board of Assessment Appeals; and Harrisburg City Zoning Hearing Board PUBLICATIONS Trend Watch 1999, Study of the Washington D.C. and Baltimore commercial real estate markets with a focus on office, industrial, retail and hotel land uses. Notable Commercial Property Appraisals: Stabilized a golf course and country club with a value in excess of $4,000,000 Valued a historic museum and addition with a value in excess of $2,000,000 Valued 300,000 SF high rise office building Reviewed Starbucks Coffee 300,000 SF east coast distribution facility 2000 - Present Bridge Street Realty, LLC, New Cumberland, Pennsylvania President Founded a full-service real estate brokerage, consulting and appraisal firm serving the Mid-Atlantic Region. Prepare marketing strategies for complex income producing portfolios of investment real estate of various property types. Assist real property owners with lease/buy, sell, and hold decisions. Review commercial leases for both lessee and lessor. Prepare real estate appraisals for condemnation, estate, divorce, litigation, liquidation, mortgage financing, and tax assessment reduction purposes. 1990 - 1999 York Bank, A First Maryland Bank, York, Penn.~ylvania Assistant Vice President; De~rtment Manager and Head; .Chief Aooraiser Read and prepared complex income producing appraisals of various property types, including shopping centers, nursing homes, automobile dealerships, mobile home parks, residential subdivisions, and conslxuction of industrial buildings, restaurants, and hotels. Contracted MAI Appraisers to prepare appraisals with fees ranging between $2,500 and $20,000. Filed tax appeals to reduce taxes of the bank- owned real estate. Directed the appraisal staffand developed in-house appraisal reports. Reviewed internal and external appraisal reports for compliance with federal law. Prepared discounted cash flow models utilizing both excel and ARGUS analyses for existing and proposed properties. Inspected properties; inspected comparable sales; verified the data presented; and prepared a written Tammie K. Sheaffer, Qualifications Page 2 report either recommending or rejecting the value conclusion. Served as the internal real estate expert and consultant. 1989 - 1991 Rothman, Schubert & Reed, REALTORS~, Lemoyne, Pennsylvania Associate Broker Represented buyers and sellers of real property. Prepared legally binding agreements of sale, leases, and marketing contracts. Prepared appraisals for this full-service real estate brokerage, consulting, and appraisal firm. Affiliations 0 National Association of Realtors, CCIM Candidate, Chicago, Illinois ~ Urban Land Institute CULl) Washington DC Chapter ~ Appraisal Institute, Chicago, Illinois, Affiliate Member and Candidate ~ NAIOP Central Pennsylvania Chapter Appraisal Institute Courses Real Estate Principles - December 1989 Standards of Professional Practic.e, Part A and B, February 1990 Capitalization Theory and Techniques, Part A and B, October 1990 Residential Valuation, March 1991 Litigation Valuation, September 1992 Basic Valuation Procedures, February 1993 Discounted Cash Flow Analysis, March 1993 Rates, Ratios, and Reasonableness, 1994 Standards of Professional Practice, Part B, December 1994 Commercial/Residential Appraisal Review, 1994 Standards of Professional Practice, Part A, February 1995 Real Estate Risk Analysis, 1996 Appraisal Reporting of Complex Residential Properties, 1996 Rates, Ratios, and Reasonableness, 1996 Appraising Nursing Homes and Assisted Living Facilities, 1997 Appraisal Reporting of Complex Residential Properties, 1998 CCIM Courses 101 - Fundamentals of Real Estate Investment and Taxation, 1989 407- Financial Analysis, 1998 102 - Market Analysis and Demographic Analysis, 1999 ~et a Document - by Citation - 285 Ill. App. 3d 330 Page 1 of 9 Service: Get by LEXSEE® Citation: 674 NE 2.d 496 285 !11. App. 3d 330, *; 674 N.E. 2d 496, **; 2996 !11. App. LEXIS 952, ***; 220 III. Dec. 953 DIANNE L. MEYER and THE SPAUDIE FAMILY TRUST, by Bernice E. Spaudie, Trustee, Petitioners-Appellants, v. FIRST AlVlERICAN TITLE INSURANCE AGENCY OF MOHAVE, INC., Respondent-Appellee. No. 2-96-0381 APPELLATE COURT OF ILLINOIS, SECOND DISTRICT 285 III. App. 3d 330; 674 N.E.2d 496; 1996 III. App. LEXIS 952; 220 111. Dec. 953 December 19, 1996, FILED SUBSE(~UENT HISTORY: [***:1.] Released for Publication January 22, 1997. PRIOR HISTORY: Appeal from the Circuit Court of Du Page County. No. 95--MR--349. Honorable John W. Darrah, Judge, Presiding. DISPOSITION: Reversed and remanded. CASE SUMMARY PROCEDURAL POSTURE: Petitioners, judgment creditors, sought review of a ruling by the Circuit Court of Du Page County (Illinois) that dismissed their action for enforcement of a registered foreign judgment against respondent debtor, and granted the debtor accord and satisfaction. OVERVIEW: Alleged judgment creditors obtained a foreign judgment against the debtor and later registered the judgment in the home state. The court below, in the home state, found accord and satisfaction and dismissed the judgment creditors' action. The court determined that once the judgment had been registered in the home state, additional orders from the foreign state should have been inapplicable as to the registered judgment. The court found that the foreign orders that had been entered ex parte as to the judgment creditors could have been collaterally attacked. The court found that the debtor did not sufficiently establish that it had made payment to the proper parties. OUTCOI~IE: The court reversed the prior judgment and remanded the case for determination in accordance with the court's opinion. CORE TERI~IS: satisfaction, registered, foreign judgment, registration, judgment creditor, original judgment, ex parte, Uniform Act, satisfaction of judgment, holder, judgment debtor, proper parties, successor, post-judgment, dissolved, vacate, reconsideration, satisfaction in full, domestic judgment, right to appeal, proper standard, final judgment, absurd result, et seq, interpreting, collaterally, dissolution, originating, nullified, enforcing LexisNexis(Tl~l) HEADNOTES - Core Concepts - · Hide Concepts ~ Civil Procedure > Entry of Judgments > Enforcement & Execution > Foreign Judgments HtVl~Once a foreign judgment has been filed, it has the same effect and is subject to the same procedures, defenses and proceedings for reopening, vacating, or staying as http://www.lexis.com/research/retrieve? :.-v3014bld368b1483a96cfc7235a2a526&csvc=l... 2/4/2003 Get a Document - by Citation - 285 Ill. App. 3d 330 Page 2 of 9 any other judgment of a circuit court. 735 Ill. Comp. Stat. 5/:~2-652. A collateral attack may be had on a foreign judgment based upon the defenses of fraud in the procurement of the judgment or the lack of jurisdiction in the foreign court. Civil Procedure > Relief From Judgment > Discharqe, Release & Satisfaction HN2~When a valid order of release or satisfaction of judgment is entered, an obligor is relieved of his duty to further satisfy the judgment. Thus, orders entered pursuant to 735 Ill. Comp. Stat. 5/12-183, dealing with the release of judgment, should be reviewed on appeal under the same standard of review as orders entered pursuant to 735 Ill. Comp. Stat. section 5/2-1401, dealing with relief from judgments. Civil Procedure > Appeals > Standards of Review > Abuse of Discretion HNJ~A reviewing court should only interfere with a trial court's decision on whether a release or satisfaction of judgment has been properly proved where it is shown that the trial court abused its discretion. 735 Ill. Comp. Stat. 5/12-83. Civil Procedure > Relief From Judgment > Discharqe, Release & Satisfaction H~n~When dealing in the context of a party assuming or acquiring the right to be the judgment creditor from the original judgment creditor, a circuit court shall grant a motion pursuant to 735 Ill. Comp. Stat. 5/12-183 upon sufficient proofs that payment to the proper parties has been made. Civil Procedure > Relief From Judgment > Discharge, Release & Satisfaction HNS~Payment to a third party not in privity with the original judgment holder does not protect the judgment creditor from paying the judgment to a proper successor in interest. COUNSEL: For Dianne L. Meyer, Bernice E. Spaudie, Trustee, Spaudie Family Trust, Petitioners-Appellants: J. Robert Meyer, Attorney at Law, Hinsdale, IL. Robert G. Black, Attorney at Law, Naperville, IL. For First American Title Insurance Agency Of Mohave, Respondent-Appellee: Knuckles & Jagel, Attorneys at Law, Naperville, IL. APPEARANCE ENTER DATE: 04/23/96. Peter H. Jagel, Knuckles & Jagel, Naperville, IL. APPEARANCE ENTER DATE: 04/23/96. .IlJDGE$: PRESIDING JUSTICE McLAREN delivered the opinion of the court: BOWMAN and THOMAS, JJ., concur. OP:[NZONBY: McLAREN OP]:N]:ON: ['331] [**497] PRESIDING JUSTICE McLAREN delivered the opinion of the court: The petitioners, Dianne Meyer and the Spaudie Family Trust, by Bernice Spaudie, trustee, are Illinois residents and appeal from the [*332] entry of an order by the circuit court, upon motion of the respondent, First American Title Insurance [***2] Agency of Mohave, Inc. (First American), which found satisfaction of their registered Illinois judgment. 735 I_.L__C~S 5/12--652 (West 1994). We reverse and remand. The procedural posture of this case is unique in Illinois. On February 27, 1990, in Arizona case number CV 88--07376 (Arizona 1988 judgment), the respondent had a judgment entered against it, in the amount of $ 688,991.01, with post-judgment interest set at 10%, in favor of Fairfax Industries, Inc. (Fairfax). The respondent appealed, and the Arizona Court of Appeals affirmed the judgment, also entering an additional award of $ 8,200 in attorney http://www.lexis.com/research/retrieve? m=93£ ~ d368b1483a96cfc7235a2a526&csvc=l... 2/4/2003 Get a Document - by Citation - 285 Ill. App. 3d 330 Page 3 of 9 fees against the respondent. Subsequently, the Arizona Supreme Court, on .lune 29, 1993, denied the respondent's request for further review of the Arizona 1988 judgment and ordered the respondent to pay additional costs of $ 250 and additional attorney fees totalling $ 2,500. On July 1, 1989, Fai~ax was dissolved under illinois law. The petitioners in the case at bar allege that, as of that date, the beneficial rights to 50% of all of the outstanding shares of common stock in Fairfax were held by petitioner Meyer and the remaining 50% was held by petitioner the Spaudie Family Trust. [***3] On October 25, 1992, a separate action was filed in Arizona, with an Arizona case number of CV 92--92186 (Arizona 1992 action), for a declaration of rights with respect to claims formerly belonging to Fairfax. Apparently, the Arizona 1992 action was instigated because a third-party judgment creditor of Fairfax wished to satisfy its own judgment from the award which Fairfax was to receive from First American. Fairfax was neither named nor joined as a party in the Arizona 1992 action. On February 12, 1993, as part of the Arizona 1992 action, John Robert Meyer, attorney for the petitioner Dianne Meyer, signed and filed an affidavit in which he stated, "from and after December 30, 1988, the Hamilton Trust and the Oradell Trust were each the owners of an undivided one-half interest in the Fairfax Cause of Action. The Trusts presently remain the owners and holders of all rights and interests in the Fairfax Cause of Action." At oral argument before this court, counsel for the petitioners indicated that, at the time John Robert Meyer made this statement, he reasonably believed it to be true. in October 1994, First American interpleaded in the Arizona 1992 action. First American did not [***4] name Dianne Meyer or the Spaudie Family Trust as parties to the interpleader. On November 4, 1994, the court in the Arizona 1992 action ordered that, upon payment of $ 1,032,792.18 to the clerk of the court, First American would be dismissed [**498] from the Arizona 1992 action. According [*333] to counsel for the petitioners when appearing for oral argument in this appeal, the Arizona court found that insufficient consideration was provided by the Hamilton Trust and the Oradell Trust to support the alleged "spin-off" from Fairfax to those trusts. Further, the court ordered that First American "be forever released and discharged from any and all liability to all parties to this action." The order also purported to adjudge "that the Fain~ax Judgment is and has been satisfied in full." On May 26, 1995, petitioner Dianne Meyer instituted the present action by filing a verified petition in the circuit court of Du Page County, Illinois, to enforce the Arizona 1988 judgment. On June 15, 1995, the trial court granted the motion of the Spaudie Family Trust for leave to intervene nunc pro tunc in the Meyer petition, and the Spaudie Family Trust filed a similar petition. The petitions related that a transfer [***5] of stock in Fairfax occurred, with Dianne Meyer and the Spaudie Family Trust as recipients, and that Fairfax was dissolved as of July 1, 1989. Therefore, the petitions concluded that 50% of the right, title, and interest in the judgment against First American belonged to Dianne Meyer, while the other 50% belonged to the Spaudie Family Trust. in addition, the petitions alleged that, in October 1994, "which was more than five years after Fairfax' dissolution on July 1, 1989, First American filed an attempted, but incomplete and ineffective, interpleader action" in the Arizona 1992 action. According to the petitions, the court in the Arizona 1992 action could not properly entertain jurisdiction over Fair,ax, due to the fact that the Illinois Business Corporation Act of 1983 provides that no action will lie against an Illinois corporation dissolved for more than five years. 805 TLCS 5/12.80 (West 1994). Further, the petitions set forth that First American did not attempt to serve the illinois Secretary of State on behalf of Fairfax as a dissolved corporation (see 805 ILCS 5/5.05, 5.25 (West 1994)), nor did First American name Fairfax's alleged successors in interest, Dianne Meyer or the [***6] Spaudie Family Trust. in the Arizona 1992 action. http://www.lexis.com/research/retrieve? m=930 i ~ b ~ a.~ 68b 1483 a96cfc7235a2a526&csvc=l... 2/4/2003 Get a Document - by Citation - 285 Ill. App. 3d 330 Page 4 of 9 As a result of these petitions, the Arizona 1988 judgment was registered in Illinois. On July 14, 1995, or more than 30 days after the registration of the Arizona 1988 judgment in Illinois, First American first entered its general appearance. On that date, First American moved to strike the May 26, 1995, registration of the Arizona 1988 judgment, asserting that the Arizona 1988 judgment had been fully satisfied, as determined by outcome of the Arizona 1992 action. First American later amended its motion, but still maintained that the registration [*:~:~4] in Illinois could not stand because of the result of the Arizona 1992 action. On September 6, 1995, the trial court denied First American's amended motion to vacate the registration. First American moved for reconsideration of that order. On November 15, 1995, the trial court denied the motion for reconsideration. In making its ruling, the trial court stated that First American "must procure something in an Arizona court that is traditionally recognized as a release or a satisfaction and present it to this court." The trial court recommended that First American return to the court that issued [***7] the Arizona 1988 judgment to accomplish this purpose. "Do that and I'll honor it," the trial court admonished. On December 4, 1995, First American moved for an emergency order of satisfaction, pursuant to section 12--183 of the Code of Civil Procedure (Code) ( 735 ILCS 5/12--183 (West 1994)). That motion asserted additional orders in Arizona entered on November 17, 1995, and November 18, 1995. On December 15, 1995, First American filed a notice of appeal from the November 15, 1995, order denying its motion for reconsideration and to vacate. During the time granted for briefing on First American's December 4, 1995, motion, First American then set out another Arizona order, this one entered on December 21, 1995. In that order, the Arizona court that entered the judgment in the Arizona 1988 judgment found First American's liability "specifically satisfied in full as to any and all claims by Dianne L. Meyer and the Spaudie Family Trust, *** as set forth in Cause [**499] No. 95 MR 0349 filed in the Circuit Court of the Eighteenth Judicial Circuit, Du Page County, Illinois, or otherwise." First American's motion to procure that December 21, 1995, order expressly premised such a finding on the [***8] judgment entered on November 4, 1994, in the Arizona 1992 action (the interpleader which was ex parte as to the petitioners herein). The Arizona order dated December 21, 1995, did not recite any payment of the Arizona 1988 judgment to the petitioners and did not recite any releases executed by the petitioners. In response, Dianne Meyer and the Spaudie Family Trust each filed affidavits which stated: they have never received any payments whatsoever from First American on the Arizona 1988 judgment; they have never released First American from any judgment in any action; they have never filed an appearance in, or authorized anyone to appear on their behalf, in any proceeding in Arizona; they never received any summons or service of any kind in either the Arizona [*:~:~5] 1988 judgment or the Arizona 1992 action; and they were never personally served with any notice of any motion to obtain the December 21, 1995, order of satisfaction in the Arizona '88 judgment. There is nothing in the record of the instant case to controvert these allegations of fact. Thus, the Arizona proceedings were prima facie ex parte as regards the petitioners. See Bank of Ravenswood v. Domino's Pizza, Inc., _[**'91 269 III. App. 3d 714, 720, 207 III. Dec. 165, 646 N.E.2d 1252 (1995). The petitioners also moved to strike the filing of the Arizona December 21, 1995, order. On February 27, 1996, the petitioners filed a motion, later denied, with the Arizona court to vacate the Arizona court's December 21, 1995, order. On February 28, 1996, the circuit court of Du Page County entered an order granting First http://www.lexis.com/research/retrieve? m=93014b 1,~_,6~b 1483 a96cfc7235a2a526&csvc=l... 2/4/2003 Get a Document - by Citation - 285 Ill. App. 3d 330 Page 5 of 9 American's motion for an order of satisfaction and denying the petitioners' motions to strike the filing of the Arizona December 21, 1995, order. Specifically, the court ordered, "In accordance with the Code of Civil Procedure, the judgment heretofore entered by the court in the above entitled matter is hereby vacated and held for naught." The petitioners now appeal the circuit court of Du Page County's February 28, 1996, order in our court. On March 21, 1996, this court granted First American's motion to dismiss voluntarily, with prejudice, its appeal stemming from the circuit court's November 15, 1995, order. Section 12--652 of our Code provides that, HN~¥once a foreign judgment has been filed, it "has the same effect and is subject to the same procedures, defenses and proceedings for reopening, [**'10] vacating, or staying" as any other judgment of a circuit court. 735 ILCS 5/12--652 (West 1994). In Illinois, a collateral attack may be had on a foreign judgment based upon the defenses of fraud in the procurement of the judgment or the lack of jurisdiction in the foreign court. Practice Management Associates, Inc. v. Thurston, 225 Ill. App. 3d 470, 474, 167 Ill. Dec. 767, 588 N.E.2d 408 (1992). Further, other courts, interpreting the Uniform Enforcement of Foreign ~]udgments Act (Uniform Act) ( 735 ILCS 5/12--650 et seq. (West 1994)), have held that "satisfaction, lack of due process, or other grounds that make the judgment invalid or unenforceable" (emphasis added) may constitute valid grounds for vacating a judgment which stemmed from the registration of a foreign judgment. Welltech, Inc. v. Abadie, 666 So. 2d 1234, 1236 (La. App. 1996); Wooster v. Wooster, 399 N.W.2d 330, 333 (S.D. 1987); Matson v. Matson, 333 N.W.2d 862, 867 (Minn. 1983). Section 12--183(h) of our Code states, "Upon the filing of a release or satisfaction in full satisfaction of judgment, signed by the [*::~:36] party in whose favor the judgment was entered or his or her attorney, the court shall [**'11] vacate the judgment, and dismiss the action." 735 ILCS 5/12--183(h) (West 1994). The Appellate Court, First District, has held that this section does not bar the judgment creditor's right to appeal following payment of that judgment. Herron v. Anderson, 254 Ill. App. 3d 365, 371-72, 193 Ill. Dec. 484, 626 N.E.2d 1035 (1993); see also In re Marriage of Pitulla, 202 III. App. 3d 103, 110, 147 III. Dec. 479, 559 N.E.2d 819 (1990). While the instant case differs slightly in that the petitioners, the alleged judgment creditors, were [**500] not the recipients of the payment allegedly made by First American, we see no reason to deny the petitioners the right to appeal the trial court's granting of the respondent's section 12--183 motion ( 735 ILCS 5/12--183 (West 1994)). Neither Herron, 254 III. App. 3d 365, 193 III. Dec. 484, 626 N.E.2d 1035, In re Marriage of Pitulla, 202 III. App. 3d 103, 147 III. Dec. 479, 559 N.E.2d 819, nor the parties in the present case make mention of what our burden of review should be with regard to orders granted under section 12--183 ( 735 ILCS 5/12--183 (West 1994)). Our review of Illinois law reveals that no other court has had occasion to determine [**'12] the proper standard of review for orders entered pursuant to section 12--183 ( 735 ILCS 5/12--183 (West 1994)). *tN2 ~When a valid order of release or satisfaction of judgment is entered, an obligor is relieved of his duty to further satisfy the judgment. Thus, we determine that orders entered pursuant to section 12--183, dealing with the "release of judgment" ( 735 ILCS 5/12--183 (West 1994)), should be reviewed on appeal under the same standard of review as orders entered pursuant to section 2--1401 of the Code, dealing with "relief from judgments" ( 735 ILCS 5/2--1401 (West 1994)). Consequently, *tN3~a reviewing court should only interfere with a trial court's decision on whether a release or satisfaction of judgment has been properly proved where it is shown that the trial court abused its discretion. 735 ILCS 5/12--183 (West 1994); see also Kaput v. Hoey, 124 III. 2d 370, 378, 125 III. Dec. 202, 530 N.E.2d 230 (1988); Smith v. Cole, 256 III. App. 3d 806, 809, 197 III. Dec. 962, 632 N.E.2d 31 (1993) (abuse of discretion is proper standard of review for petitions for relief from judgment brought under section 2--1401 of the Code. http ://www.lexis.eom/research/retrieve? m=93014b 1 d368b 1483 a96cfc7235a2a526&csvc=l... 2/4/2003 ~a Document - by Citation - 735 ILCS 5/12-652 Page 2 of 9 NOTES: NOTE. This section was Ill. Rev. Stat., Ch. 110, para. 11.2-652. EFFECT OF AMENDMENTS. The 1997 amendment by P.A. 90-18, effective July 1, 1997 added the subsection (a) designation; and added subsection (b). .--- The 2000 amendment by P.A. 91-903, effective January 1, 2001, added subsection (c). · -~Cen2S a Document- by Citation- 735 ILCS 5/12-652 page 1 of 9 Service: Get by LEXSTAT~ TOC: Illinois Compiled Statutes Annotated > /... / > [UNIFORM ENFORCEMENT OF FOREIGN JUDGMENT~ AC_II > § 735 ILCS 5/12-652. Filing and Status of Foreign Judgments Citation: 735 II. C.S. 5/12-652 735 ILCS 5/12-652 ILLINOIS COMPILED STATUTES ANNOTATED Copyright © 2002 by Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved. · ** THIS SECTION IS CURRENT THROUGH PUBLIC ACT 92-853, 8/28/2002 *** · ** SEPTEMBER 13, 2002 ANNOTATION SERVICE *** CHAPTER 735. CIVIL PROCEDURE CODE OF CIVIL PROCEDURE ARTICLE XII. 3UDGMENTS -- ENFORCEMENT PART 6. FOREIGN 3UDGMENTS AND FOREIGN-MONEY CLAIMS [UNIFORM ENFORCEMENT OF FOREIGN 3UDGMENTS ACT] · GO TO THE CODE ARCHIVE DIRECTORY FOR THIS 3UR!~_DZC'rZo'~' 735 ILCS 5/12-652 (2002) [Prior to 1/1/93 cited as: Ill. Rev. Stat., Ch. 110, para. 12-652] § 735 ILCS 5/12-652. Filing and Status of Foreign Judgments Sec. 12-652. Filing and Status of Foreign 3udgments. (a) A copy of any foreign judgment authenticated in accordance with the acts of Congress or the statutes of this State may be filed in the office of the circuit clerk for any county of this State. The clerk shall treat the foreign judgment in the same manner as a judgment of the circuit court for any county of this State. A judgment so filed has the same effect and is subject to the same procedures, defenses and proceedings for reopening, vacating, or staying as a judgment of a circuit court for any county of this State and may be enforced or satisfied in like manner. (b) A foreign judgment or lien arising by operation of law, and resulting from an order requiring child support payments shall be entitled to full faith and credit in this State, shall be enforceable in the same manner as any judgment or lien of this State resulting from an order requiring child support payments, and shall not be required to be filed with the office of the circuit clerk in any county of this State, except as provided for in Sections 10-25 and 10-25.5 of the Illinois Public Aid Code [305 ILCS 5/10-25 and 305 ILCS 5/10-25.5]. (c) A foreign order of protection issued by the court of another state, tribe, or United States territory is entitled to full faith and credit in this State, is enforceable in the same manner as any order of protection issued by a circuit court for any county of this State, and may be filed with the circuit clerk in any county of this State as provided in Section 222.5 of the Illinois Domestic Violence Act of 1986 or Section 22.5 of the Code of Criminal Procedure of 1963 [750 ILCS 60/222.5 or 725 ILCS 5/22.5_ ]. A foreign order of protection shall not be required to be filed with the circuit clerk to be entitled to full faith and credit in this State. HISTORY: Source: P.A. 87-358; 87-895; 90-18, § 90; 91-903, § 15. : - , ' · h/retrieve,_m=i74c3dc26ffbd5ctbc73b41de683f65e5&csvc=lt&..' 12/18/02 Get a Document - by Citation - 285 Ill. App. 3d 330 Page 6 of 9 Turning to the merits, we determine that the circuit court [**'13] erred for three reasons. First, the December 21, 1995, Arizona order should not have directly affected the Illinois registered judgment. Second, because the Arizona orders were entered ex parte as to the petitioners, they may be collaterally attacked in the circuit court. Third, First American did not sufficiently establish that "payment to the proper parties" was made in accordance with section 12--183 ( 735 ILCS 5/12--183 (West 1994)). First, the circuit court erred by not recognizing that the [*337] December 21, 1995, order did not directly affect the Illinois registered judgment. Once the Arizona 1988 judgment was registered in Illinois, an Illinois judgment with a legally independent life of its own was formed. Light v. Light, 12 II1. 2d 502, 508-09, 147 N.E.2d 34 (1957); 735 ILCS 5/12--652 (West 1994). In Light, the plaintiff registered a Missouri judgment in Illinois. After the judgment was registered, the judgment debtor claimed that the foreign judgment had become satisfied and uncollectible by law in Missouri. After analyzing Missouri law, the Illinois Supreme Court disagreed with the defendant, but also held that the uncollectibility of the Missouri judgment had no [**'14] effect on the collection of the Illinois registered judgment. Light, 12 II1. 2d at 508-09. The court held that "unless the registration is set aside after a hearing [in Illinois], it is the registered judgment that becomes the final judgment of the Illinois court." (Emphasis added.) Light, 12 III. 2d at 508. The Illinois statutes pertaining to the registration of foreign judgments are an enactment of the Uniform Act ( 735 ILCS 5/12--650 et seq. (West 1994)). The purpose of the Uniform Act is to implement the full faith and credit clause of the United States Constitution (U.S. Const., art. IV, § 1) and to facilitate interstate enforcement of judgments in any jurisdiction where the judgment debtor is found. Practice Management Associates, Inc., 225 II1. App. 3d at 473. By statute, the Uniform Act is to be interpreted and construed to effectuate these purposes, as well as to make uniform the law of the states which enact it. 735 ILCS 5/12--657 (West 1994). Thus, we examine a case similar to Light, which arose under Connecticut law. In Burchett v. Roncari, 181 Conn. 125, 434 A.2d 941 (Conn. 1980), a judgment creditor sought the enforcement of a Kentucky [**'15] judgment that it had registered in Connecticut. After registration in Connecticut, the Kentucky judgment was nullified by post-judgment action [*'501] taken in the Kentucky court. The defendant claimed that the Connecticut registered judgment, in turn, was nullified by the post-judgment action taken by the Kentucky court. In ruling that the post-judgment action of the Kentucky court had no effect on the Connecticut registered judgment, the Connecticut Supreme Court stated, "The Connecticut judgment *** had its own independent life-support system. A domestic judgment enforcing a foreign judgment is not directly affected by subsequent proceedings in the originating state." (Emphasis added.) Burchett, 434 A.2d at 943; see also Huntington National Bank v. Sproul, 116 N.M. 254, 861 P.2d 935 (N.M. 1993) (once an Ohio judgment was registered in New Mexico, the judgment was converted into a New Mexico judgment). Second, because the record in the instant case reveals that the [*338] subsequent proceedings in Arizona, as well as the original proceedings in Arizona, were ex parte as to the petitioners, the trial court erred in not allowing the petitioners the right to attack those orders collaterally. [**'16] A judgment rendered by a court which "fails to acquire jurisdiction of either the parties or the subject matter of the litigation may be attacked and vacated at any time or in any court, either directly or collaterally." State Bank v. Thill, 113 III. 2d 294, 309, 100 III. Dec. 794, 497 N.E.2d 1156 (1986); see also Dec v. Manning, 248 III. App. 3d 341, 347, 187 III. Dec. 776, 618 N.E.2d 367 (1993). Thus, aside from the fact that the Arizona December 21, 1995, order has no direct effect on the independent Illinois judgment, that order was also issued ex parte as to the petitioners and, consequently, may be attacked collaterally by the petitioners in this case. http ://www.lexis.corn/research/retrieve? m=93014b 1 d368b 1483 a96cfc7235a2a526&csvc=l... 2/4/2003 Get a Document - by Citation - 285 Ill. App. 3d 330 Page 7 of 9 Third, we determine that the circuit court erred in ordering the petitioners' case dismissed due to a satisfaction of judgment because First American did not sufficiently establish that a satisfaction had been entered under section 12--183 ( 735 ILCS 5/12--183 (West 1994)). Section 12--183(h) provides, "Upon the filing of a release or satisfaction in full satisfaction of judgment, signed by the party in whose favor the judgment was entered or his or her attorney, the court shall vacate the judgment, and dismiss the [***:17] action." 735 ILCS 5/12--183(h) (West 1994). The record reveals that First American did not file a satisfaction signed by the party in whose favor the judgment was entered. Also, the record shows that the circuit court relied exclusively on the December 21, 1995, order of the Arizona court, and not any such signed satisfaction, when it granted First American's motion. Thus, because the clear terms of the statute were not met, we have the authority to reverse the trial court's decision. However, we note that the present case illustrates an inherent problem with the language of section 12--183 ( 735 ILCS 5/12--183 (West 1994)). Where the original judgment creditor's rights to collect on a judgment have accrued to a different party, who then becomes the judgment creditor, and the judgment debtor then satisfies the judgment with that different party, the terms of section 12--183 may be difficult to meet. Section 12--183 requires a "release or satisfaction *** signed by the party in whose favor the judgment was entered." 735 ILCS 5/12--183(h) (West 1994). Technically, the party which assumes or acquires the right to be judgment creditor could never have a valid satisfaction order entered [***:1.8] against it, even where it had signed a satisfaction document, because it was not the party "in whose favor the judgment was entered." 735 ILCS 5/12--183(h) (West 1994). When construing a statute, a court must ascertain and give effect to the legislature's intent, the best indicator of which is the language of the statute itself. First of America Bank v. Netsch, [*339] 166 III. 2d 165, 181,209 III. Dec. 657, 651 N.E.2d 1105 (1995); Moon v. Smith, 276 III. App. 3d 958, 213 Ilk Dec. 107, 658 N.E.2d 856 (1995). However, because section 12--183 does not contemplate a situation where the right to be the judgment creditor has been transferred to another party, we find it ambiguous in such a context. This court has previously determined that the purpose of section 12--183 is, in relevant part, to ensure that proof of payment of the judgment to the proper parties has been made, thus barring any further attempt by the judgment creditor to enforce [**502] the judgment. Heller v. Travel America, Inc., 229 III. App. 3d 439, 444, 170 III. Dec. 580, 593 N.E.2d 122 (1992), quoting In re Marriage of Pitulla, 202 III. App. 3d at 110. That being so, we determine that, ~t~4¥when dealing in the context [***:19] of a party assuming or acquiring the right to be the judgment creditor from the original judgment creditor, a circuit court shall grant a motion pursuant to section 12--183 ( 735 ILCS 5/12--183 (West 1994)) upon sufficient proofs that "payment to the proper parties has been made." This construction avoids an otherwise absurd result. See People v. Coleman, 166 III. 2d 247, 253, 209 III. Dec. 782, 652 N.E.2d 322 (~995) (a court interpreting a statute must assume that our legislature did not intend an absurd result). We determine that the circuit court erred in ruling that First American had sufficiently proved that "payment to the proper parties" was made. First American filed the Arizona court's December 21, 1995, order with the circuit court, and the circuit court relied exclusively upon that order when granting First American's section 12--183 motion. Mindful of the proposition that "[a] domestic judgment enforcing a foreign judgment is not directly affected by subsequent proceedings in the originating state" ( 0urchett, 434 A.2d at 943), we determine that the mere order of one of our sister states, by itself, does not constitute such sufficient proof. This is especially [***20] so where, as here, the order was entered ex parte as to the petitioners. We also determine that, while the circuit court erred in dismissing the petitioners' registered judgment, equity demands that we remand this case for an evidentiary hearing. Our supreme court has envisioned and authorized such a hearing. LicJht, 12 III. 2d at 508 (the registration http ://www.lexis.com/research/retrieve? m=93014b 1 d368b · ,~63 a96cfc7235a2a526&csvc=l... 2/4/2003 Get a Document - by Citation - 285 Ill. App. 3d 330 Page 8 of 9 of a foreign judgment may be set aside "after a hearing" (emphasis added)). Upon remand, the trial court should be aware that our supreme court held, under the Uniform Act, that, if there is a defense that bars the foreign judgment completely, then final judgment on the Illinois registered judgment must be for the party alleged to be the judgment debtor. Light, 12 Ill. 2d at 514. Satisfaction would be such a defense. 735 ILCS 5/12--652, 12--183 (West 1994); Welltech, Inc., 666 So. 2d at 1236; Wooster, 399 N.W.2d at 333; Matson, 333 N.W.2d at 867. ['3413] Turning briefly to other issues, we determine that the petitioners' argument that the respondent has waived its right to raise the defense of satisfaction by not raising it in pleadings within 30 days lacks merit. In Illinois, the defense of payment and satisfaction [**'21] may be raised by a defendant at any time. Klier v. Siegel, 200 Ill. App. 3d 121, 125-27, 146 Ill. Dec. 620, 558 N.E.2d 583 (1990). In addition, we determine that the respondent was not barred by res judicata from making its section 12--183 motion to dismiss, based upon the Arizona court's December 21, 1995, order. While the respondent had, indeed, made similar motions under the same statute, none of them relied upon the December 21, 1995, order of the Arizona court. Instead, they relied upon the outcome and orders of the Arizona 1992 action. Further, the respondent dropped its appeal of the denial of its previous motions only after the trial court dismissed the petitioners' registered judgment. The petitioners cite no case law for the proposition that res judicata applies in such an instance. In closing, we note that the respondent alleges in its brief that the reversal of the trial court's satisfaction order would make Illinois a State in which: "Anyone could claim to be successors in interest of a foreign judgment and, even though the original judgment holder had been satisfied, they would still be entitled to a second payment of the judgment and any subsequent [***22] 'successors in interest' would then be entitled to third, fourth, and fifth payments of the same judgment." The respondent's statement starts from a false premise, that is, that "the original judgment holder had been satisfied." Fairfax, the original judgment holder, did not satisfy its judgment against First American before dissolution. At the crux of this case is whether the petitioners are the proper successors in interest of the Fairfax judgment. HN"~"'~- [**503] Payment to a third party not in privity with the original judgment holder does not protect the judgment creditor from paying the judgment to a proper successor in interest. See 49 C.J.S..ludgments § 523, at 975 (1947). The judgment of the circuit court of Du Page County is reversed, and the cause is remanded in accordance with this opinion. Reversed and remanded. BOWMAN and THOMAS, JJ., concur. Service: Get by LEXSEE® Citation: 674 NE 2.d 496 View: Full Date/Time: Tuesday, February 4, 2003 - 11:04 AM EST http://www.lexis.com/research/retrieve?m=93014b 1 d368b 1483 a96cfc7235a2a526&csvc=l... 2/4/2003 Get a Document - by Citation - 285 Ill. App. 3d 330 Page 9 of 9 About LexisNexis J Terms and Conditions Copyd.qht © 2003 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. http://www.lexis.con~research/retrieve?_rn=93014b 1 d368b 1483a96cfc7235a2a526&csvc=l... 2/4/2003 STATE OF iL'~.INOISUNITED STATES OF AMERICA COUNTY OF DU FAC IN THE CIRCUIT COURT OF THE EIGHTEENTH dUDICIAL CIRCUIT I ~rcff~t Court, DuPage ~ ~ ~ ~ nd fl s ~n m office. I :~ ~, ~ ~le S~p He~ 0~ - ............ ~ ~,, ~ ~ -~a, mc~o~ng ~Hy ~scd roarer, ~ ~S O~E~D ~BY: ~ ~c presses ~d ~gju~s~cfion of~c sul f · DuPage Attorney No.: 75'/~ E Address: _~_~D ~ e.a~,fe~.~a ~,~,_. D~: .. City/State/Zip: ~~. ~ ~~_ Telephone: JOEL A. ~GANN, CLE~ OF ~E 18~ ~DIC~L C~CUIT COURT WHEATON, ~L~OIS 60189-0707 /~0 ORDER 2116-N (Rev. 9199) I~~'b STATE OF ILLINOIS UNITED STATES OF AMERICA COUNTY OF DU PAGE IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT · ~ ' ---' File Stamp I-Icrc e~vi;R This matter coming on to be h~ard, th sed in__the premises and having j,u.~sdicfion of the subject Attorney for: ~gv.''x~'?~/~* ~ .IUDaE Address: Z-~'Z~ ~- ~/,~-C4X.-~: _<r~r_ ~oo DATE.ENTEREo City/State/Zip: ~4~o, ~ go4o4 JAN 09 7003 ,,:cou.a~r~,ou,,, . Telephone: 712, 2,,~'--gc- ~5"-~"4 '~ BONNIE M. WHEATON, JUDGE DI~PLYl-X JOE1. A. KAGANN, CLERK OF THE 18TH JUDICIAL CIRCUIT COURT © WHEATON, ILLINOIS 60189-0707 MILDRED J. GERBER and : THE COURT OF COMMON PLEAS OF MARILYN J. GERBER, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff§ : ORPHANS' COURT DIVISION : VS. '. : NO. 00-7831 EQUITY : FRED E. GERBER Il, TRUSTEE : CIVIL ACTION - EQUITY Defendant : ORDER AND NOW, this Day of ,2001, upon consideration of the t'bregoing motion, it is hereby ordered that: ( 1 ) a role is issued upon the Plaintiffs to show cause why the Defendant is not entitled to the relief requested; (2) the Plaintiffshall file an answer to the motion within twenty days of service upon the Plaintiffs; (3) the motion shall be decided under Pa. R.C.P. No. 206.7; (4) deposition shall be completed within Days of this date; (5) argument shall be held on ,2001, in Courtroom __ Of the Cumberland Cotmty Courthouse; and (6) notice of the entry of this Order shall be provided to all parties by the Defendant. BY THE COURT: MILDRED.I. GERBER and · THE COURT OF COMMON PLEAS OF MARILYN J. GERBER, ' CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs ' ORPHANS' COURT DIVISION VS. . · NO. 00-7831 EQUITY FRED E. GERBER 11, TRUSTEE · CIVIL ACTION - EQUITY Defendant · MOTION TO DISMISS ACTION AND NOW comes the defendant, Fred E. Gerber II, Trustee. by and through his attorney Lindsay Dare Baird, Esquire, and avers the tbllowing: !. Plaintift§ Mildred J. Gerber and Marilyn J. Gerber initiated the above action, a Petition to Compel Accounting, on November 3, 2000· 2. Plaintift~; erroneously filed the action in the Office of the Prothonotary of the Court of Common Pleas of Cumberland County, despite the caption correctly placing jurisdiction with the Orphans' Court Division. 3. On November 20, 2000, defendant responded to the Petition which stated, inter alia, that the requested relief of an accounting was accomplished. 4. The defendant presumed the action would be withdrawn. 5. Plaintiffs are now seeking discovery of further information, which, if in the proper jurisdiction, would be approlJriate. 6. Plaintiffs have filed the action in the wrong division of the Court of Common Pleas. IRUE COPY FROM RECORD in Testtm(m¥ ~p, er~f, I l'~r~ unto ~ ~ ~ WHEREFORE, the defendant respectfully requests that, pursuant to Pa. R.C.P. 1032(b), the above-captioned action be dismissed tbr lack of jurisdiction. Respectfifily submitted, :...~ _... W-~ ~.~ ,,,~dsay Dare Baird, Esquire Attorney lbr Defendant 37 South Hanover Street Carlisle, PA 17013 Supreme Cou~ No. 72083 .... -- ':' "" (7'17)243-5732 -- - cc: Michael J. Kane Attorney for Plaintiff MILDRED J. GERBER and THE COURT OF COMMON PLEAS OF MARILYN J. GERBER, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs ORPHANS' COURT DIVISION VS. NO. 00-7831 EQUITY FRED E. GERBER II, TRUSTEE · CIVIL ACTION - EQUITY Defendant CERTIFICATE OF SERVICF I hereby cedify that on this .~.c~,, day of /',~'/'~,~'~.~.~*.,. , 2000, I have ' caused a true copy of the Answer to Petition to Compel Accounting to be delivered by first class mail to: Michael J. Kane, Esquire 3300 Trindle Road Camp Hill, PA 17011 Attorney for Marilyn J. Gerber Joseph U. Metz, Esquire Killion and Metz 214 Pine Street Harrisburg, PA 17101 Attorney for Mildred J. Gerber ,' l~indsay Dare Baird, Esquire 37 South Hanover Street Carlisle, PA 17013 E COPY FROM Attorney for Frederick E. Gerber II '1' RU re uf~ s~t. flsy ~ ~n Testimony whereol. I he MILDRED J. GERBER and : THE COURT OF COMMON PLEAS OF MARILYN J. GERBER, : CUMBERLAND COUNTY, PENNSYLVANLA Plaintiffs : ORPHANS COURT DIVISION VS. : NO. : FRED E. GERBER Il, TRUSTEE : Defendant : COMPLAINT TO COMPEL ACCOUNTING AND NOW, Mildred J. Gerber and Marilyn J. GerbeL Plaintiffs herein, through their respective attorneys, pursuant to 20 Pa.C.S.A. § 7181, allege as followS: 1. Mildred J. Gerber is an adult individual residing at 623 Hilltop Dr., New Cumberland, Cumberland County Pennsylvania. 2. Marilyn J. Gerber is an adult individual residing at 42 Drexel Place, New Cumberland, Cumberland County Pennsylvania. 3. Fred E. Gerber II is an adult individual residing at 4287 Kearney Lane, Fairfax, VA 22033. 4. On July 29, 1994, Fred E. Gerber, deceased, established a revocable Trust in Cumberland County Pennsylvania, for the benefit of himself during his life, with provisions that the Trust continue upon his death. (A copy of which is attached as Exhibit A) 5. Upon the death of Fred E. Gerber in January, 1998, Defendant Fred E. Gerber, II became successor Trustee of said Trust. 6. Plaintiffs Marilyn J. Gerber and Mildred J. Gerber are beneficiaries under the Trust of Fred E. Gerber dated July 29, 1994. 7. Plaintiff Mildred J. Gerber is the widow of Fred E. Gerber, deceased. 8. PlaintiffMarilyn J. Gerber is a daughter of Fred E. Gerber, deceased. 9. Defendant Trustee Fred E. Gerber I1 is a beneficiary of the Trust. 10. Fred. E. Gerber is the son of Fred E. Gerber, deceased. 11. Defendant Fred E. Gerber II is the present Trustee of the Trust of Fred E. Gerber. 12. To the best of Plaintiffs' information and belief, no accounting of the Trust has ever been made or filed with the court. 13. On May 5, 2000, undersigned counsel for PlaintilTMarilyn J. Gerber wrote to Lindsay D. Baird, Esquire, counsel for the Trustee Fred E. Gerber, II, requesting inter alia an accounting of the Trust assets, liabilities, earnings and a disbursement from the accumulated Trust income or principle to assist Marilyn J. Gerber with living expenses, as permitted by the terms of the Trust. 14. On June 5, 2000, Ms. Baird responded and advised, inter alia, that the Trustee: "is in the process of hiring a CPA to perform an accounting of the Trust. As soon as it is completed, you will be provided a copy on behalf of Ms. Gerber. My Client keeps detailed records regarding the Trust and any disbursements made. He is anxious to satisfy any and all inquiries." 15. In the correspondence of June 5, 2000, Ms. Baird requested that Ms. Gerber provide detailed financial statements and information for the Trustee to consider Ms. Gerber's request for a distribution. 16. On June 9, 2000, undersigned counsel for Ms. Marilyn J. Gerber advised Ms. Baird that Ms. Gerber had previously submitted detailed information to Mr. Herbert Rupp, Esq., previous counsel for the Defendant Trustee and inquired whether that would meet the Trustee's requirements. 17. On August 18, 2000, Ms. Baird, on behalf of the Defendant Trustee, advised undersigned counsel for Ms. Marilyn J. Gerber that "Col. Gerber is in the process of having an accounting done. We will provide results fo that concurrent with your providing information we have requested." 18. The effect of this correspondence was that the Defendant Trustee had conditioned the release of the results of the accounting on the beneficiary's disclosing details of her finances. 19. Since August 18, 2000, undersigned counsel for Ms. Marilyn J. Gerber has attempted to contact Ms. Baird to determine the status of the accounting and has received no response. 20. On October 20, 2000 and again on October 27, 2000, undersigned counsel for Plaintiff Mildred J. Gerber wrote to Ms. Baird, requesting an accounting of the Trust. 21. As of November 2, 2000, undersigned counsel for Plaintiff Mildred J. Gerber had received no response. 22. As Trustee, the Defendant has a fiduciary, obligation to the beneficiaries 23. The Defendant Trustee has a personal conflict with Plaintiff Beneficiary Marilyn J. Gerber by having filed a civil complaint for defamation against PlaintiffMarilyn J. Gerber. 24. To date, Defendant Trustee has continually made promises to provide an accounting to the beneficiaries, but has continually failed to perform that obligation. WHEREFORE, Plaintiffs respectfully request that this Honorable Court: 1. Enter an order directing Defendant Trustee to file with the court a formal accounting of the Trust, including detail of all assets, liabilities, disbursements and income acquisition and disposal of Trust assets during the period in which he has acted as successor Trustee. 2. Enter judgement against Defendant for costs and attorney's fees 3. Enter such other order for relief as the court deems warranted. Respectfully submitted, Registration No. 46215 Kane and Mackin, LLP 3300 Trindle Rd. Camp Hill, PA 17011-4432 (717) 214-3700 Attorney for Marilyn J. Gerber JosephU. Metz Registration No. 32958 Killion and Metz 214 Pine Street Harrisburg, PA 17101 (717) 232-0879 Attorney for Mildred J. Gerber VERIFICATION We the undersigned Mildred J. Gerber and Marilyn J. Gerber, verify that the facts set forth in the foregoing Petition are true and correct to the best of our knowledge, information and belief. We understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. §4~904 relating to unswom falsification to authorities. Mildred ~J.;/G6rbe? 'I'H~S AGRE~T made ~is ~/- day of July, 1994, by and bet~4uen F~D E. GE~q of 623 Hilltop Drive, New O,mherland, Pe~sylvania, 17070, hereinafter referred ~o as the "Gran=or" and ~ED E. GE~, hereinafter referred 1. The Grantor hereby transfers to ~ke Trustees The prcperty listed in' SchedUle A annexed hereto, IN TRUST, for the f¢llo~±ng~ ~ purposes: (a) To pay the income to 'the Grantor in ccnvenient insuallments at !e~st quarteruannually. (b} To pay the Granter, a~ any time or ti~es during his life, such sums from o£ a~y par~ cr all of ~%e principal as he may request in a writtsn Lnst_--ument ~e!ivered ~o ~ Trustees. (c) To pay to th~ Grunuor, at any ~.ime or 5imes d'~ring his li+'e, such suns from or an'_/ pal-t cr all cf the principal as the Trustees may, in their di.-'-cre~ion, deter-mine to be reasonably necessa~y for his support, maintenance, comfert or other banefiz, or to meet the costs o~ any illness or accident whica may affect him. (d) upon ~he de=th oC the Grantor, to pay the then remaining principal, if any, as the Grantor may appoint in favor of his estate or in favor of or-hers, such power to be e;:ercisable by him in ~ will in which he expressly refers to This power. (e) If or to the extent to which the Grantor fails effectively to exercise tke power granted ~o him in (d) above, to dispose of ~%e principal, if any, remaining on his death as provYded in paragraph 3, if the G~antor's wife, M!LDRED 3. CERB~, sttrvives the Grantor. If Gran~or'~ wife does not sur%'ive him, suck principal shall be paid to the Grantor's issue su_~viving hie. 2. Upon ~e gr~nto~'s death, the Trustees shall pay to the Grantor's estate an aaount equal to t2%e trust's fair share, determined as provided ~elo~, of all estate, if~eritance and other death ~axes (including any interest thereon and penalties with respect ~hereCo), federal, state and other, imposed by reason of the Grantor's death in ~espect of property held by the trus~ o£ o~ha~wise. The t~ust's fair share of such taxes shall be 2 detarm£ned by tl~e executors cr adminia trat~cs !'or each tax separately and, for eac.~ tax, shall be the prouortion of ~-he tax which uhe value of the property held by ~_e ~st in respect to which the tax is imposed bears To the value cf all property in respect to which the tax is -reposed. A tax shall not ba considered imposed in respect to property ~.o t~e exment uf any deduction, credim, exemption or exclusion allowed in respect to such property. The determination by the executors or administrators of :he amount payable under this article =hal! be -*!hal, and '_-he Trustees shall pay such sums .without making inquiry in~o ~.b. eir accuracy. Upon naking payment of the azeunss datez~mined, the ~'rustees shall be discharged from any liabi!isy '~lah respec~_ to such payments and from rur~_n'er accountability therefor, t'uc2~ pa.vmen~s shall be made ou~ of the principal of r~.e trust. If the Gr~-ntor's ~i£e, M'~.LDRED 3. GE.%BER, survive---' the Grantor, in no event shall such uayments be made out of Share S as defined in (b) cf paragraph 3 of this agreemen5. 3. Ir t:xe Grantor's wife, MILD~gD J. GEP_~ER, survives the Grantor, any proper~_y directed te be disposed of pursuant to the provisions of ~nis article shall he divided into ~'~o sl~are$, herein respectivel? desig:~.ated as "Share .~" and "Sl:are B", which snal! be constituted as follow-s: (a) Share'A ~hal~ con~-~ist cf a s'am equal to the largest amount, if any, wh~ich can pa~$ free of federal estate tax in the G£antcr's ~statu by reason of the unified credit a~ainst federal estate tax allowable to t.~.e Grantor's es%ate and t~e state death tax credit allo~able to .the Grantor's estate (provided that use of this credit does not resui~ in increasing the amount of state deat'~ ~axes paid), reduced by ~he ac.:gregate cf (1) a.ny it~-m~ passing outside of this agreemen~ w~i~ are required to be included in the Gz'antor's gross estate and w~ich do not qualify £'or ~he federal esta-_~_ tax marital or charitable deduc-.ions, (2) the amount of any ad~inSstrakion e~penses of the Gr-~nt~r's ~_s~atu wkicn arc claimed as income tax rather than as estate tax deductions, and (]} the amoun~ of ~ny state death taxe-~ payable by the Grantor's estate, i~cludin9 the trust's Cair share of suck taxes payable under Paragraph 2 herecf. (b) Share B ~hal! consist of the ~alance of t_he property dJ~-ected to ke disposed of pursuant to the provisions of _- pa...gr.p_~. Shars A shall be disposed oI as p~'ovidad in parL~raph 4, and Share o as provided in paragraph 5. 4. The Tz-u~-Uees shall hole Sha.,_-e A, during the life of the Grantor~s wife, MILDP~ED J. GERBFL~, for t/le follc~inq p%krposes: (a) In ~..~e discretion of the Trustees, to pay any par~ or all of the income tc. or accuJ~u!ate a_~y fart or all of such income fcr the benefit of, any one or more of the Grantor's wife aha his issue in any degree, or add any par~ or ~1! of such income to the principal of the trust. ~ (b) To pay ~o %ny one or mo_-'e or the Gr~ntor's wife and his issue in any degree and the Gran~or's sister, MP, S. FLOR3.NCE CAPOTE, aE any time or uimes such sums from or any par~ or all o~' the principal ~s the ~r-ustees may, in t~ei~ discretion, de~er:~ine ~o. De re=,sonably necessary permit the person to maintain her ~sual and me~t the costs of ~ny illness .~r a:~cide~t which may affect ~uch p~rson~ except that ?.o amount shall be paid ~o the Grantor's ,~tfe from *--%~ princip&i of £.%are A unuil t~.e principal Sh~re paragraph 5, has keen compl~r.e!y (c) To continue '~he ..pz'~_nci~al i'2 any, remaining at the death o~ u~e Gr.~ntc. r's ~'i~e, in trust for the Grantor's then !lYing c~.~.i].cr~n, provid=d, howeve::, theft any' of the £ Grantor's living chi!~_-en w!~o is unmarrie-! and has no ch.~!cLren shall n~,c become a benmfic.,.ary of the trust until such person sur-:ives the Gr~ntor's wife by one year. If such person does not survive by one year, his or her s~are ~hall be divided bet:~een my other surviving children. Ii tl%e Grantor ha~ no ~hen ~_ivinc, issue, 'such principal shall be disposed ,~f az provided in paragraph 6. (d) The principal ~..~.al 1 be held, invested and reinvested, preferably in tax-fr~e municipal bonds and the income of r-he t~ust paid 5o the Grantcr'$ children in equal shares for ~o !o:-:g. as ~.:he children st:~ll live. (e) Upon the deauh c~ a child of ~he Grantor, the princip~! shall b~ div~.ded into zs many pa~-ts as there were children before tk~ said death of a child and such par'~ shall be paid to the ~ildren of such cki!d in equal shares. The Zrust shall c~nuinue for ~%e r~_maining part until the las~ child di=s. (f} Upon the dea~_.h of ~--~e lam~ c.~ild, the p£incipal and any accumulated Du= unpaid income shall be paid to t_he chi!cLren of such child in equal sh-._res, at '~h!cn 51me the truz~_ shall tcrmi~]ata. 5. The 'i'rus~.ees .~hal: hold share B Ill TRUST, during the life of the Grantor's wife, M_'LDP~E:~ J. GERBZR, for r:te follovSng purpos es: (a) To pay the income ~o he-_,' in 2onvenient installments at least quarter-~nnua.[ly. (b) To pay t~ kef at any tim.~ or limes such sums from or any par~ or al! ~f~'the principal as the .,~ruztaes may, in ~eir sole discretio.., da~ermdne 5o be reasonably necessary to pe_'-m~t hex' to za!ntaln her usual and normal standard of !ivin9 or to meet the costs of any illness or acciden[ which may affect (c) To pay any princip=l re~aini~g at her teeth to such persons, cor~uratlDns ,r otb:ars, incl&dinc her estate, he~ crecitor$, or the crediuors -~f her estate, in such p~cportiuns, on suuh ter~s, ccndit 5OhS ~nd cencingencies, and in such estates, aksolutely or in ~rus~, as ~ne may appoint by specific r~fe£enc~ to ~_his power in a will. (d) if or to the exte:'.t which t2:a Gr~n=or's said wife falls efr~_ctiYe!y ~o e:~=rciae ~h~ poweur gr-nted ~o her pu--uuant to =~uJ~paragr[=gh (c) a._ove, ~o c~ntinue t_he principal if any, '_e~_ai::!ng au the deatt: of the GranCor's wife, iA trust for t~ Grantor'g then living children, provide~, however, that anl; o~ the Grantor's living children who is u:u~arried and has no children shall not become 2. beneficiary of t/~.e trust until such person survives %he Grantor's wife by one year. If such persoa does no~_ survive by on~ year, hi~ or her share shall be divide~ betweer, my otker survi~inq childi-en. If t-%e Grantor nas no then living i.=sue, such principal shall be disposed of as provide~ in paragraph 6. - (e) The principal shall be held, invested and reinvested, preferably in tax-fr~e municipal bonds and the income of the ~rust paid uo the Grantor'3 children in equal shares for so long as t_he cni!dren shall live. (f) Upon the deauh of a child of tJ/e Grantor, the principal shall be divided into as many pa_~ts as there were children before thc said death of a ~hild and such Part shall be paid co ~he ch41dren of such child in equal .snares. The trust shall', conuinue for the remaining part until th= lasu ckild di~s. (g) Upon the deatk of =ha last child, the principal and any accumulated but unpaid income shall be paid to the children of such cl]ild i:x equ=l mh-:_res, at · wh__h time trust s.~ll terminate. 6. Any property '~irected .at an'./ time to De disposed of as provided in this parag?aph ~hal! be p.iid ~o such pe_-sons and in such amounts and proportions as '..:ould be entitled te receive the same under the laws of the comm~nweal'~h of Pennsylvania then in existence, if the GranTor h~d th.an died intestate, a resident of th¢ Commonwealth of Pennsylvania and r_~e o~'ner of said prope~y. 7. If under the terms of enter provisions of this trust, any money or other property is l'=quir~_d no be distribu=ed to a person who is a minor or '~ho is ouher-~;ise under a di:;abili~.y (such as incompetency) , su~':h money or outer .prcper~.y shall not be so distributed, bu= instead shall b= held by ti:e Trustees, IN TRUST, for %he following purposes: (a) During the period of m!ncri~y or other disability, thu Trustees shall pay ~o the m~ncc or ~ther person under a d2sabi_ity an]~ part or all of %ko income or principal as %he Trustees may, in ~heir discretion, desermLne to be r~sonah!y n~ces~a~y for such person's support, maint~n?-~ce, education, or health or tc meet the costs of any illness or accident affecting such person. (b~ During t~_e period ~f '.- ~'-- · mi...or__3 or other disability, 9 th= Tru-2r_ees may accu~..~late ~ny part of r~.e income not disposed of pursuant to (a) of this paragraph, or they may add such income to principal. (c) Upon the termination of minority or the other disability, t~le Trustees shall pay all remaining property to the per,on whose minority or disability has terminated, or in the event such person-has died before at[aiming majority o~ without tarnination of disaDi!iuy, the Trustees shall distribute such proper~y to such person's estate. 8. ~y property which the ?rust.~es a~e aur-horired to pay to a person who is a minor or ot/lerwise under a ~lisabil[ty, may, in ~%e discretion of the '~rustees, De paid for ~:e benefit of such person to a guardian or to another individual who is not under a disabi!i~y with whom the 'minor or otheL~wise disabled person resides. If the T!us~ees obsain a rec~ip~ for any pas~ant made in accordance with this provision, such receipt shall fully disc~zarge [hem from liabilisy with respect uo such paymen~ and from fu~er accountability therefor. 9. Whenever t.~e '£_~ustees are directed or aut_hoz'ized to ma~W~a payments to a person, the Tru_~tees are aut.hcrize-/, in t_%eir discr=tion, ~o apply such pa~ents to or fcr the use of such lu I0. Any income whack h~s been acc%~u!~'~ed f~' the Trustees rot the benefit of a specified person may be paid to such person at a/~y time prior to the term/nation o~ che %_-ust ~.hick~earned t.b.e income and shall be paid to such person upon suck termination. In t_he event ~hat such person Uies ~rior to tke ter-_inat~on of such trust, any s~[ accumulated income sha!!"b~paid to his or her estate.- 11. Wherever the Trustees a~$e given the ~iscret[cnary power ~o mane payments from the principal of a trust, no Tzustee who is a pot~-ntial recipient cf such a payment may exercise his or her discretion in his or he~ own favo'c. 12. The T~as~ees, in exercising an~' discretionary powers given to th-am under any provisions o~ ~:!~ trust, need not take in~o ccnsideration any uther assets or Lncoue o~nad by or available to the peruon to whom a d!$cre'~iona~'y paymen~ i~ under consideration, except that the T--~stees sh.~ll be pro]~ibitad from making any payment in reim~rse~zent ~o an'/ go';ernm~en=al en~i=y which may ha~;e incurred expense fu£ ~%~ be~.afi~ ufa beneficia~f, and the Trustees shall not pay =ny obligation of a beneficiary wa!ch obligation is o~herwise payamle by any governmental entity or pursuant to any govern~cnta-i proqu~m of rei-'_burzament or ~ayment. It is the Grantor'~ prizary ~.'.lrposz in zreatlng the t_~-_'sts provided for in this agreement ~o be:]afit the bene[ iciaries ¢.f the income and not to preserve the prin=ipa! for the benefit of the remainde_-nnen; this purpose s~all De ca_~riec out f.n de:..armining any questions '~nich may arise bet'~een t!~a intmre~ts of the beneficiaries of nhe income and ~.~ inuerests of.the beneficiaries of the remainders. 13. Tiaa .word"issue" as usea in this agreement (i; shall mean issue par sti~pes a~id (ii) si:all include those bern af~ar the date of ~h~is agreement. The wo£-d "~inor" as used in this agreement shall mean a person und~_r the age of majority in the jtLrisdicticn in which such percon iu dor. ici!e~, and. the word "min3rity" shall mean that period i:.~ef°re such per:3on attaing the age o_~ majority. The words "Trustee" and "Trustee.~" apply ~o and incl.~de not only ~he Trustees named herein to act in ti:e first instance, but also, unless otner'~ise s?ecifically pro'.ided, any additional or successor Trustee. The wor~ "discretion" ]:.~ans "sol=, exclusive and unrestricted discretion." U:~lesa ~he context otherwise re.cfuires, t.~e m~sculine shall be deemed to include t_~e feminine mind neuter, and the use of r_he sing,~ar and ]~iural shall be intefrchangeable. 14. Without limiting the au-_horiny which the Trustees would citer%else h=ve purzuan~ to iaw or purs~lant to otl:er provisions of this ag-ceem=n~, they ar~ her~y v~sted with ~,3 following discretionary po~ers which they sh~ll have until the final distribution ~f all assets in ~heir h=nds: (a) To ._-eta!.~ for as _.ong a perzod o-~ time as they may consider advisable or pruper any property which may at any time be ill their hands. (b) To sell at public :._- private sale or to ex=hange any property whic!: may at any time be .;~n their hands, '~ithout applicasion To court, on .',ny -_el-as which they may consider advi.~ab!u or .u_ope_ in~.~luding terms involving an e.~ten£ion of credit -or a~y period cf tim,~, and wi~h or without security. (c) To inve~-= in or ct_he~,-ise acquire any property, without being bound by ~ny provi'--ion c,f law restricting investments by trustee:~, including but 'hoc limited to common -'-',nd pre feb'red stoc:.~, ~acured an/ unsecured ob!igations, -,,utuu! and com,.on funds, uther securiEies, mortgages, and in~_erea.~s ac.d cption=~ in any of the foregoing. (U) To =cquire anc retain pr.~,perti.' wi~-'~-ou~ ..'_-egard to any princ±ples of dive£sificaticn. (e) To _~cqui~-e~ exerci~e, :~.:_!! 2. r ah.zndcn conversion, su~£cription and ar_her eights an¢~. opu'_ons im cor-nection wltn securities ~c any other p~'cper~y, and to gr~nt O~'cions .~or a~ly period ~f time. (f) To operate, repair, alter, improve, insure, grant options upon, mortgag£~, partition, or lease for any period of time any re.~l property or interest in real property which at any time forms. ~_r~ . of any trus~ herein created. (q) To .employ and pay %qves-czent advisers, ~ccountants, attorneys, bco~eupers~ clerks, =%enoq£aph~rs and (h) 'fo borrow money fcc an! purpose, including but nou ~ ~ ~ -~ the _ ! ..... d :~ payment ,of taxes; this 9ower (excep~ with respect to t.,_ Share B tryst fur the benefit of r~he Gran=or' $ wl_'e} %o include the powehr ~o borrow from income for the benufit of principal or from principal for ~.he benefit cf income, with or w!~.hout h".~erest, and ~o pledge or mortgage p~-operty as secure_ _t,,: for money bca'r~wed. (i) To lend none'./ or o~hcu pr.pert_.~ ~o an'.; person, ccrpcrz~ium, par~nerz::ip, tru-2 u cr other enCi%y, including a he-nef!ciars, her~,ander. (j~ To naJ:e any ,'-'ivisaon or diizribuaion hereunder in kind or in cazk or partly in each. (k) To ~ecermina, ~ case o!.~ re~sonakle dc,,~5o~ on their parU, whether an':' property coaing in~o ~ei~ h~ds constitutes income or principal, and whe~er any pa~ent or expendit'~a zadc by thez ,.2ha!l 2e char~ed 5o income or ~o principal, bus ~ny dis~rlbutlcn by a cc~7oration or ~sscciation made %o ~e ~us~ees [axcept to ~%e Tuus~ees of the SI!are B tr,as~ %or ~e be,~afit of the Grzntor's ~ife) in the s~aras of the .'~ ~-i~utin~ corporation or ass~cia%lon, whaskar ' · ., , urincipa%. sto~ dividend, shall ke allocated ,hc,!y tc (1) To place u.ke assets of the ~rust or any par~ of them in one or more bank, brckaragc, cus~odi~_n or other accoun5~ with ami' ban:~s, trus~ ccm.oanies, or stock broke~ce firms, a.~.d to pay une cc£~ o_-' m~i.~.-_ain!ag such zcoount~. ~m), To _a_n'-' ~ ~'~_ni . La.nj<, mrok,i~rac, e, cucuodi.-.n an/ omhar =_ccuu~q~,_ "-,; .... "" ~i. .: ,Df ..... S GE?~ER =R~S_ or I_ thc name of 5::e T_~ustee~ or zny of r_kem, followed by the ~c.'.- ~.s "'3~EC&~ ,~CCOUNT", r~.., TO keep .property. of tko trust in an'; convenien% place o£ safa}:eepxng, %'~5ouu !i~ita~ion, provided suck property is at ali times property of tee ~-ust. (o) To delegate to any one of the Tz-_astees, or to ochers, any nondi~cretionary po(;er, including but hOC limited to ~%e pc~er, sinq~y or ~i~k o~hars, ~o sign ch~cks, '.;i~hdc~%za! sli~:~, inu~rucnions for the recaip5 or delivery of securi~Ses or o~er property, and instrucnions for ~%e pa?men~ .Dr receipz of ~cney, and the ~cwer, singly or ~.[th c2~err, to have zccess to any safe deposit mcx or oEner pl~ce where pr~Fe~y of any trus~ create~ ~ursuan~ ~o ~lis agreemenc is deposited. !5. No T~ztee shall be required to furnish any bond, un~ercakin? cr o~ar security fc.r the fai~fui ~iscaarge of his duties as Trustee, n6r shall any Trustee b2 re~dire~ to file any in~erlm acccun5 ~f his procacding~ in any cc'zrt in mny jurisdiction in which he may be cal~ed upo]~ ~o act. ~o Trustee sh~!! De resUcn~ible or !i"~bie for the manner in %~ich any Ciscreuion is e)zerczsed pursuanu hereuo, or f(.r any misin~erprat5cion of a~reem,'=nt, or fcr any .'ct or omission of ~.ny c%her ~'ru$~ae, or, unless his conduct anou:~ts tu fra-.'d or willful m!scon~:uc=, for an'.; acc or ou/sslun o£ his uwn. 16. A~.v perEon, including.-_he Grantor, may, at ~_ny time and from time to %ime, add additional pre9erty by will or ot-her%;ise to ~he trust, providing such property is accep~ab!e to ~he Trustees. .... A_~.y propel-fy so added-shall becc,,,~ a part of the ~rus.-_ estate and be subjec~ in all respects to =ne rem-ms and ccnditions of this !7. A~u? state, menu sen~ by r~..$istered ~.'ai! cr de!iverad by any Trustee to, or any release uo a Tr~tee signed Dy any beneficia~z 'who is !ivin,~ ~ of full a~3e and sound mir. d, sent or deliv~d to, or any ce!eaue si~ned on behalf ~f any benefici~y by the executor or a~inis~rator of ~y baneficia~ if the bensficiary is ncu !ivinj, or a p~ent, ~ar/ian or CC~l.~ee of a benef~cia~f %'ho - ~_~ a~e ~d so~nd mind, shall conclusively discharge the '!'~tees ~rom any ~d every cla~ and d~and of any such be:~efic!ary with respect to any matter contained in such ~tata~ent or release, except with ra~ec~ to any matters in such .rl~_._n ob4ec~ion is made to and receive~l Dy the Trustee rend :rLn% the stat~en~ ~'ishin sixty days after the sta~eue:~t has ba=n sent om' de!ivere.~. ~y such and ~--~.e a~inistrat~on %hereof, wi~.:h cr without formal or informal accounting Or 5he rendition of a~.y state~e:~ shall conclusively discharge such Trustee from all claims of the beneficiary by whom ur on whose b~half ~ne re!eas~ was si%n~ad, a~nd from all cla~m~ o~ the t-hewn living descendanus of such kenuficia~-f having no interest in 'the tr_~s~ conf!~_c.~ing with ~-hau of ..~uch beneficiary, and from all claims ef such benef'.'ciarv's unborn issue, ri'ah respec~ to all marie_rs rela~ing ~o the trus= or t~Su a~_inis-cration thereof, including clai~_s which uere nor disclosed to or not .k.~.o%~ by such beneficiary or the person signing r_he r~leasa on such beneficiary's behalf. lS. A Trustee may resign by execu~inc and ac?~owledging a %qri~'~en resig.~.ation and dellverin.~ it to kn ac~ing 'i~cus~ee, if %here ia a Trustee acting, or if not, 'the Grant~r if he is t_hen living, or if not, to t-%e then income beneficiary of t.~_e trust. 19. The successor Trustee shall be Cc!eno! Fred E. Gerber, Ii. Th~ Grantor ~aa!! have power to remo-;e any Trustee and to designate additional %'rust-_es or successor Trust~es. Any designation --.na!l be revo~ab!e at any ti-~e prior ~o r_he qualification of the person £o designated. 18 After t~e death of t~he Grantor, the Trustee cr Trustees acting from time to time shall have the power ~o ~esignate additional Trustees to serve with t_ham or successor Trustees to serve upon the occurrence of a further vacancy if the successors na~ed herein or designated as provided herein are unable to act. Tka po~ers provided for by this paragraph shall include the power to designate different Trustees for different trusts create~ herein. The Trustees acting from time to ~ime shall kave the power to deliver any or all of the assets of the t~st to any Trustee or Trustees then acting in any jurisdiction. This power shall include the power to administer separate trusts created herein as separate entities with different Trustees in different jurisdictions, r_t is the Grantor' s intention tha~ if the assess of the t~--us~ are delivered %o another jurisdiction, they be administered in and subject to the laws of ~hat jurisdict~_on. Each of r~he powers granted by this paragraph shall be e;:arcisable by a written and ac~nowl edged in s ~r'~m~n t. A designation shall become effective upon the delivery thereof to the person so designated and r_he qualification of such person in the manner hereinafter provided. A revocation of a designation shall become effective upon deliYery tkereof to the perscn w~ose designation ~s revoked, except r_hat a revocation to be eff~ctiYe need not be delivered to ~he person desi_crnata~ if the designation 19 has nou Deem de!i%,~_red to auzh person. A remc,za! shall become effective upcn the de!i..'ery cf the instrument ef re,.ova! To the Trustee so removed. Additional and successor Trusuaes shall be v.:sted wir. h all discretion,.authoriSy, ~-~ ..gh.~ and imm~nlties and De subject to all of the duties of T~usteas named pursuant to this agreement. 20. Any addiuiona! or successor Trusuee ~hall qualify delivering a '~ritten and ac~nowledqed acceptance of ~he t_~st to mn ac~ing Trustee, i~ r. hers is a Tr,~stee ac~ing, or if not to Grantor, if he ia then laving, or if no-c to Eke then ~_ncoma be~ueficiary of the ~rusu. 21. FILED E. ,3ERBLR hereby zccepts ~e trust and agrees to execute r_he sa_me t~3 tile bes~ of h~.s ab:l~+v 22. The trust skal! be revocable by the Gr=_ntor, at any ~ime~ and e±the_r in whole or in part. The Gr~or may, in addition, ~mend cr modify this ag~-eeme..~,.a~ any time. in any w~y whatever. .~ny suck re'~ocation, 'amendment cr modificat--on shall be made by a ~iE~-en and ackno'~!ed~ed i ns tr'~ment de !_".'/erea ~o tl%e acting ?rusEaes. After tine dcat.h of t:'.e Gra_n~or, tike trust cannot be revck~d or amended, and no .~(~rt cf the inccne or pri_ncipal of the r_rus~ can be transferred, pledge~ or otheh'~ise alie.~ated by any 2~ beneficial"i, or become £ubject to the dabss of a~i be~:eficiary. 2Z. Unless tk.a governing la,.' has been chan~jed by removal of assets to anor_her jurisdic%ion, t. his agreement and eac~~. trusu created hereu~.der shall be const-~-'ed and requlat-~d by the laws of r_he Commonwealth of P~n~sylvania. .... IN WITNESS WHEREOF. the parties have executed this-agreement as of the day and year first abo~e wri=tan. e.~E:) g. GF-RBER, Grantor ~'~q32D ~. C-ERBF_~, Tr~s~e~s MILDRED J. GERBER and : THE COURT OF COMMON PLEAS OF MARILYN J. GERBER, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : ORPHANS COURT DIVISION VS. " : NO. : : FRED E. GERBER II, TRUSTEE : Defendant : NOTICE TO DEFEND You have been sued in Court. If you wisl~°-~defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and notice are served by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 717-240-6200 ........ , ......... , ~. ,...-,,.,, ,.,,,,,~ ~ ~a-o~ ~-~44:: t-g¢~ ~. 03/04 ....... ~.~:~/~_~.~.~., . ./._.. e ......... .......... ~ ~ ~~~~ ~ ~.,. .~ .~ ..... ...... ~ ~~ ~~__~ ~~,~ ~_~..~__ . ,. ......... ~ ~_~_.~~~~. ......... ~.~'~ ~_~~~._~... ~. . ............ ~ ~ . ~ ~ .~.~ .~_ ~ ~ ~. . ...... ..... :..-:..~-- ~ ...... ¢~_~~~~. ~~~' ~~~~ ~~ ~ .... - ..... :~... ........... ~~~~ ~ , .. ~~~.~_~ ... .... ~~ ~ ~ , -~-:--~ ... .... ~ ~~d~~ ~ ..... ~ ~ ~ . ........ ~~ ~ ~~_~R~, LAST WILL AND TESTAMENT. OF FRED E. GERBER ' I, FRED E. GERBER, of 623 Hilltop Drive, New Cumberland, Pennsylvania, 17070, being of sound and disposing mind and memory, do hereby make, publish and declare this for and as my Last Will and Testament hereby revoking any and all Wills or Codicils by me at any time heretofore made. ITEM I - I am married to MILDRED J. GERBER, and all references to my wife in this Will are to her. I have three children: COL. FRED E. GERBER II, MARILYN JO GERBER and JANE N. HEFLIN, and they are described in this Will collectively as "my children" and individually as "my son" or "my daughter". ITEM II - I give my tangible personal property and all insurances thereon to my wife. I have complete confidence that she will honor any written instructions that I may leave with regard to said tangible personal property. Any such property not distributed to my wife is be sold an~ the proceeds added to my residuary estate and pass as hereafter described. ITEM III - Ail the rest, residue and remainder of my Estate, real, personal and mixed I give to the Trustees of the Trust created under a Trust Agreement dated July 29, 1994, by and between me, FRED E. GERBER, as Grantor and FRED E. GERBER, as Trustee, to be held, administered, and distributed pursuant to the provisions of that Trust Agreement as a part of the Trusts created thereby. ITEM IV - If my wife and I should die under such circumstances as would render it doubtful whether my wife or I died first, then it shall be conclusively presumed for the purposes of this my Will that my wife predeceased me. ITEM V - I name as my Executrix, my wife, MILDRED J. GERBER. In the event my wife predeceases me, I name as my Executor, my son, FRED E. GERBER, II. (1) I give to my Executrix-Executor named in this Will or any Codicil hereto or to any substitute Executrix- Executor the power to sell real estate and all of the powers now applicable by law to fiduciaries in the Commonwealth of Pennsylvania and in particular to the Pennsylvania Probate Estates and Fiduciaries Code as effective and in effect on the date hereof during the administration and until the completion of the distribution of my Estate. 2 (2) In determining the Federal Estate and income tax liabilities of my Estate, my Executrix-Executor shall have discretion to select the valuation date and to determine whether any or all of the allowable administration expenses in my estate shall be used as Federal E~tate Tax deductions or as Federal Income Tax deductions and shall have the discretion to file a joint income tax return with my wife. (3) If there by an~-property located outside the Commonwealth of Pennsylvania, in which I may have an interest at the time of my death, which cannot be conveniently administered as provided herein, then I authorize, but do not require, my Executrix-Executor to appoint a Bank or Trust Company with trust powers, to administer such property according to the terms of this Will. ITEM VI - My Executrix-Executor is authorized and empowered to retain for such period of time as my Executrix- Executor may determine any assets including the Capital Stock of any closely held corporation which at any time shall come into the possession of my Executrix-Executor whether such assets are or are not of the character approved or authorized by law for investment by fiduciaries and whether such assets do or do not represent an overcentration in one investment. 3 ITEM VII - No interest of any beneficiary under this will, or any codicil heretO, shall be subject to anticipation or to voluntary or involuntarY alienation- All estate, inheritance, succession and other ITEM VIII - _ '_ ~A~*h and interest · r ayable by reason o£ my u= ...... m · do P ' ' death taxes Impose = ~_ ~1 property comprising Y and penalties thereon with respecu u~ .--~-=~'_ ~ not such property th tax purposeS, w~e~=~ v_ gross estate for dea __ ~ .... ~A --~t of the residue of my -- · will, sha~ De P=~ o --t passes under tn~s - - mv Trustee(S) of my Reuocable Tru~ , in £rom estate, after collect g .... ~- e. the assets of my Revocable the share of such t - of administration' Trust, as if such taxes were expenses authorize my Executrix-Executor to pay all such taxes at such time or times as deemed advisable- IN WITNESS WHEREOF, I have hereunto set my hand and seal this ~.~ - day of witnesses: COMMONWEALTH OF PENNSYLVANIA: : COUNTY OF c_~~D : WE, FRED E. GERBER, ~c~_~T ~ ~R~o~U'r'. , and ~r~ ,7. )~ , the Testator and the witnesses, respectively, whose names are signed to the attached or foregoing will, being first duly sworn, do hereby declare to the undersigned authority that the Testator signed and executed the instrument as his Last Will and Testament and that he had signed willingly (or willingly ~~~d another to sign for him), and that he-exec~-L- it as his free and voluntary act for the purposes therein expressed, and that each of the witnesses, in the presence and hearing of the Testator, signed the Will as witness and to the best of his or her knowledge the Testator was at the time eighteen (18) year of age or older, of sound mind, and under no constraint or ~RED E. ~ERBER, Testator Witness Subscribed, sworn to, and acknowledged before me by F~LED E. GERBER, the Testator, and subscribed and sworn to before me by ~,~?T ~. O'Om~%-. , and ~,.r~ ~. ~nr~. , witnesses, Nota~/~lic (S~) 5 ,[ ~ ~ ~ ~,PA~~ ''~ I MILDRED J. GERBER and THE COURT OF COMMON PLEAS OF MARILYN J. GERBER, ' CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs ORPHANS' COURT DIVISION · NO. 00-7831 EQUITY FRED E. GERBER II, TRUSTEE ' CIVIL ACTION - EOUITY Defendant · ANSWER TO PETITION TO COMPEL ACCOUNTING 1. ADMIT. 2. DENY. Marilyn J. Gerber resides with Mildred J. Gerber at 623 Hilltop Drive, New Cumberland, Cumberhmd County. Pennsylvania. 3. ADMIT IN PART· DENY lN PART. Address is correct. Delay Fred E. Gerber, Il is Defendant's name. Defendant's name is Frederick Edward Gerber. Il. 4. ADMIT. 5. ADMIT. 6. ADM1T. 7. ADMIT. 8. ADMIT. 9. ADMIT. 10. ADMIT. 11. ADMIT. 12. ADMIT. 13. ADMIT. 14. ADMIT. 15. ADMIT. 16. ADMIT. 17. ADMIT. 18. DENY. An exchange of documents was requested. i 9. ADMIT. 20. ADMIT IN PART. DENY IN PART. Admit letter- written October 27, 2000. Deny letter was written October 20, 2000. Letter- was written October 17, 2000. 21. ADMIT. '~'~ ADMIT. 23. DENY. Sentence insinuates that Defendant created ..... mg filed a civil complaint..." In fact, the filing of the suit was a result of the Plaintiff Marilyn J. Gerber's repeated harassment, threats and slander to Defendant at home and at work. 24. DENY. Performance has been underway for' some weeks and is complete. A faxed copy of the accounting is attached and marked as Defbndant's Exhibit 'A' WHEREFORE, Defendant respectfidly requests that this Honorable Court: I. Dismiss Plaintiffk' Petition to compel accounting. 2. Grant any other relief it deems appropriate. Respectfully submitted, L'4hdsay Dare, B,~-d.' Esq'~ire- Registration No. 72083 Baird Law Ofl~ce 37 South Hanover Street Carlisle, PA 17013 (717) 243-5732 Attorney fbr Frederick E. Gerber FRED E. GERBER TRUST ~alance of investments I:ebrua~ 28, 1gab 098 inveMme~t il~come Charles ~ch~b gag investment Income Charles Schwab a~ount 16.365. ~ 9 Check number Date Payee D~c~ion Amount 101 O9/07/gB Bill Lla~nes . ~23 Hilltop Ddve renovation 1~ 0g~8~8 PNC Bank Gauge door 7,28500 623 Hllito~ ~nve ~ 03 Og/~ al98 Bill Haines ~novalio. 104 0gl13198 A~cla L~ Inmimnce Jane Gerber 2, goo.00 1 D5 Dg113198 Acacia [:.t~ In~u~an~ Marl~n Ge~er ~ ~-~ lg.50 College afl. nd Aug - 106 0~126198 9a~a Gerber $300 and bi~d~ $250 107 0g/2~g8 9ean t4eflln BJ~hd~ 550.00 College s~pend Aug.. 250 O0 ~ ~ 09t28198 Amanda I tefltn 109 10/02/g8 Sascha Ge~e~ College boating 300.00 ~ lO 101121~8 Bill Haines 823 Hilltop Dr~e 300.00 ~novatlo~ ~ 11 10~1tg8 Canal PA MRI Caner MRI - Mildred Gerber 7555 ~ ~ 2 1U/25/BB Sa~ch~ Gerber College ~a~qg _ Nov 500 00 113 1~1~8 Afnmnda Merlin College boe~ing. Nov. 5OO.O0 ~ 14 10~8~8 Cummings A~ocia~s Dad's doctor bills 1 ~5 1 '1111198 Attanffc InalJ~nc~ Mgmt !ns[~ranc~ o~ B~lt. H~me 200. po 116 1 l~?lgB Sascha Ge~ber College boarding _ Dec ~ SO. OD Lead ~olson 50000 117 MD Dept. of ~e snvf~nmen~l fee ~alt 11~8/98 ~nvi~nment FIou~ 118 11/2819R ~anda Heflin College boa~lflg. Dec. 500 00 1~.00 ~ol. Ge~er. QM. Award 119 1~110~8 Major Larry Shaw of ~llan~ Memone~ 120 12/15~8 A~cla LI~ Ih~nce Ma~lyn Gerber 141 19 121 1~15198 A~c~ L~ InSumn~ ,Jane ~rber 19.S0 1~ 1~0198 Saetia Gerber ~23 ~2a ~2~O/gB Jane Heflle Chds~a8 g~ 18.35 1~5 f~O/g8 Amanda Heflln Chris.las gift 250 00 ~ 26 12~0/gB Seen Heflin Christmas gi~ 5UU. UO 250.00 Defendant's "Exhibit A" 127 1 ;)J24198 ML~,_.ha Gerber' Christmas gift 128 t2t28198 Sascha Gerber 12g 12~8~8 ~a~d~ H~ln College b~ing -Jan. 300.00 Collie b~lr~g. Ja~. 500.00 ~s~ 12/01~8 Dell Ca, log Gales Seen & AmantJa Hefli, 130 1~31~a Jane Heflln 131 Void Bl~d~y 7.~1 ~32 01/lg/~g Sascha Gerber Feb. 99 ~io~ 2.000.00 aUto debR 0~8199 ChaHes ~hwab margin in~t 500.00 ~33 011~9 Sascha Gear EMT sch[mld ~ulse 14.56 College. SS00 e,d 375.00 134 0~9 Amanda I I~n hiHkday. $250 College ~ltlo~ and boa~ 750.00 135 0~1~9 Jane Heflln Ma~h _ May 136 0~115~9 PA De~t. of Revem~e 1 g97 In~ ~ 1 137 01115199 PA OepL of Revenue estima~ ~ nsymet~[ 333.00 138 011151Bg PA Dept. of R~enu~ esfimal~l ~x e~men/ 188.00 la8.00 ~39 01130~g PA Dept of Revemm estimated ~x ~ment 140 0~12199 PA DeDL of Revenue es(ima~ ~x 141 02~llgg Amenda Hefli~ College .. Mamh 187.00 ~42 021221gg ~a~a Gerber College _ Mamh 50D 00 e~o debit 02qS~g ChaHe~ S~b margin I'terest 500 00 mdg debit 03/01~g Char~a Sdl~b check o~er fee 25.86 EMT cUb~lies and 19.90 1a3 0311419g Seethe Ge~er equipment. ~olle~e 144 0311519g ROTC A~cia Li~ ~nsum~tce ,Ja~e Gerber 250.00 145 03115199 Acacia L~ I~sumr~e MaHlyn Gerber ~8.35 146 031~81gg Seethe Gerber College ~ardln~ -April ~ g. SD auto debit 03/301gg Cha~e~ Sch~b 147 041~g UNC Charl~ffe margin interest 500.00 148 031311gg Sa~ha Gerber 50.4~ 14g BEll AUanffc Mobil 150 04/~gg IRS TelePhone bill- Mildred 66.00 1990 incom~ t~ 15g 73 04114~9 PA De~[ =f Revenue 1998 income tax t~1 O4~g~g Sascha Ge~er College .. M3y 63~ oO 152 04~29~g ~anda Hefll~ 153 Collie ,. May S00.00 ~/~glgg Perm Ge~sr' Expense mimbumemen~ _ 500.00 OUto dgbi~ ~12g/gg ~ascha coJle~ 154 Chedes Schwab matin ;rffere~ 350. O0 05~8~g Lord and T~yfor Mildred Gerber 50.g2 Col. Ger~, QM, Award 745.~1 155 0~!14~9~ LTC R~fldy R~dol[}h of ~c~llence 156 05/1~g UNC 157 Sas~a 25~. ,June board. $500 and 0~g Frederick ~. Gerber unl~rms _ $300 auto debit 051271gg Cha~s~ Schwab ~na~in mteresl 800.02 15~ Samba's EMT ~urse. 7~.~ 06/07/99 ~e~ GerDe~ ~lJpplJes a,d a50.00 12 month I1~ Policy - 25000 161 O611a~g Amed~n Amiable [1~ Mild~ au~ deb~ 06~9/99 Charles Schwab ~i~ intent 122.60 162 06130~9 Sea,ha Gerber Collie. June 163 ~30~9 Amanda Heflin Collie _ July Sascha Ge~ber- medi~! 500.00 1~ 06130199 Absolute bill skldent ~e~in~ _ S~che 75.66 le5 o~o~g UNC Cha~o~ Educational d~elo~ment. 165.00 166 07/f3199 Jane Heflln Sea~ 167 07Q3199 ~anda Heflin CDIl~ga .. August 500.00 5.000.00 ~68 07123~9 Sascha Gerber Collie. AU~u~ Mre ~7127~ .... : MaHlyn j. Gear 500.00 a~ debit 07~g~g Charl~ Schwab Living exPenses/bills margin Intere~ 6.750.09 169 08~6199 Missouri MIl[~ A~demy tuition - Seen 88.31 ,Jutlior year college Sepl 8.54~ 00 170 08119~9 Sascha G~er 99 au~ deb~t 08130199 Charles Sch~b margin Interest 1.700.00 ~73.17 171 0gl03~g Atnanda Heflin College. Fall 99 1.700.00 ~ 72 09109/99 A~olule Sasc~a medl~ Dtll Bi,day _ $250 and HotiDr 43_73 ~ 73 Dgl~ 3~9 Sasch~ Ge~er Socle~ .. $60 311. O0 17a 0gll61gg Sascha Gerber heallh care --k~ee injury 261.00 auto deb~ 99/291~9 Charles Sch~b margfn 175 1010~gg Amanda Haflin Collage - October 219.41 176 10~3~g F~e~k gerbel ~ollege .. O~ober 700.00 177 10tt6199 Mi~ouri Mil~y A~de~ Seat~ Heflin 700.00 a~ ~ebit 10~8~g Cha~es Sch~b ma~ln interest 3,290.36 178 1110119g Ama,da Heflin College .. N~vemher 700 00 ~79 1D~O/~g Sascha Ge~be~ ~o{l~e. N~emDer 228.75 College. December and 700.00 180 1 l~glgg Sascha Ge~er medi~[ au~ dabE 11~9199 ChaHe~ Bchwab me,In lntem~ 1.000.00 181 ~ f/30/gg Amanda Heflin C~llege _ November 285.57 1.000.OD Co~ege - De~m~ $7~ 182 1~3199 Amanda HeRi~ and {;hHs[mas $250 183 ~lalgg Jane Gerber 12113~9 Seen Heflin Christmas gl~ 950 Chris,as gift 500.00 250O0 Collie .. December $750 ~ 85 12113199 Sascha ~etber and ~l~mas $250 9SO. 00 186 121~9 A~cia L~'l~s~r~n~e Jane - 4 187 12/15/99 A~eia [~ Imsur~ce Marllyn _ 4 ~Ue~m 73.a0 78.09 c-ash/er cheek 1131709 l~231ee Mildred d. Ger~ ~hed -~ be 1~8 12~3~g ~d Gerber 9.300.00 ~r Mischa's Bi~hday 250 Un~al~ed loss on Inves~en~ O~ember 3t, lggg ~ 0,499.91 Balance ~ Investmen~ De.tuber 31 ,' lggg (4t ,078.52) S ~1.670.80 MILDRED J. GERBER and : THE COURT OF COMMON PLEAS OF MARILYN J. GERBER, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : ORPHANS COURT DIVISION VS. : : ~o. o~ 7~ ~ - ~?~'c~ _. FRED E. GERBER II, TRUSTEE : CIVIL ACTION- EQU/TY Defendant : ACKNOWLEDGMENT AND ACCEPTANCE OF SERVICE ":~V-~":.'--~:-~/'"~?~ - ....... :: -~ ~?::,~z~ ' :::~7~-:~'''~ ?' ~, I accept service of the complaint in the above captioned action on behal£ofthe Defendant, Fred E. Gerber, H, Trustee, and hereby certify that I am authorized to do so. Zindsay Dare Baird, Esquire 37 S. Hanover St. Carlisle, PA 17013 COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION IN RE: : No. 21-01-92 APPOINTMENT OF A GUARDIAN : OF THE ESTATE OF MILDRED J. GERBER, : an alleged incapacitated person : PETITION FOR APPOINTMENT OF A GUARDIAN OF THE ESTATE IN ACCORDANCE WITH 20 PA C.S.A. § 5511 TO THE HONORABLE, THE JUDGES OF SAID COURT: 1. The Petitioner is Frederick E. Gerber, II, the son of Mildred J. Gerber, the alleged incapacitated person. The Petitioner resides at 4287 Kearney Lane, Fairfax, VA 22033. 2. The Petitioner was appointed Emergency Guardian of the Estate of Mildred J. Gerber by Order of this Court on January 25, 2001 .. 3. The alleged incapacitated person is 86 years of age, a widow, and resides at 623 Hilltop Drive, New Cumberland (Cumberland County), Pennsylvania 17070. 4. The following persons are the alleged incapacitated person's only living next-of-kin:' a. Frederick E. Gerber, II, son, 4287 Kearney Lane, Fairfax, VA 22033 b. Jane N. Heflin, daughter, 270 N. Garfield, Lombard, IL 60148 c. Marilyn J. Gerber, daughter, 42 Drexel Place, New Cumberland, PA 17070 5. The assets of the alleged incapacitated person are valued at approximately $462,000 comprised of the following: a. Residence at 623 Hilltop Drive, New Cumberland, Pennsylvania 17070 - $145,000 b. Furniture and furnishings, equipment, etc. - $7,000 c. Jewelry and personal possessions - $10,000 d. Living Trust of Mildred J. Gerber (Frederick E. Gerber, II, Trustee} - $300,000 6. The alleged incapacitated person's monthly income is approximately $4,228 per month which includes: . . a. Social Security benefits - $653.00 b. Deceased husband's civil service pension - $1,053.00 c. Deceased husband's military pension - $2,122.00 d. Fred E. Gerber (deceased husband of Mildred J. Gerber) Trust, discretionary payment representing rent from rental property in Baltimore, MD - $400.00 7. The alleged incapacitated person was not and is not a member of the armed services of the United States and is not receiving benefits from the United States Veterans Administration. 8. The alleged incapacitated person is suffering from infirmities of old age and lack of short-term memory, when pressured becomes easily confused, when pressured cannot make intelligent decisions and when pressured lacks ability to fully understand the consequences of her actions. 9. Because of her mental condition, the alleged incapacitated person is unable to manage her property, has become the victim of a designing person, has ~issipated and lost her property, is liable to become the victim of designing persons and is liable to further dissipate and lose her property. 10. The proposed Guardian of the Estate of the alleged incapacitated person is the Petitioner, Frederick E. Gerber, II. 2 11. Mildred J. Gerber, the alleged incapacitated person, in her Power of Attorney dated January 21, 2001, Paragraph 20 stated as follows: For the purpose of recording my wishes in a convenient place, I record here that if it is necessary to appoint a Guardian of my person or a Guardian of my Estate, it is my desire that my Agent be appointed. FrederiCk E. Gerber, II, is appointed as Agent of the Power of Attorney. A copy of said Power of Attorney is marked Exhibit "E", attached hereto, and incorporated herein by reference. 12. The Petitioner is the Executor of his father's Estate, is the Trustee of a Trust established by his father, is the Trustee of the alleged incapacitated person's Living Trust, is the named Executor in the alleged incapacitated_ person's Will, is the. Agent appointed in the alleged incapacitated person's Power-of-Attorney, is a Colonel in the United States Army stationed in Arlington, Virginia, is the Director of Health Care Operations under the Surgeon General of the United States. He has recently testified in excess of 12 times before Congressional Committees concerning the health care of military personnel. 13. The Petitioner has no personal adverse interests to the alleged incapacitated person. 14. The alleged incapacitated person is unable to resist the demands and pressures for money from her daughter, Marilyn J. Gerber, is unable to prevent Marilyn J. Gerber from making charges for Marilyn's personal uses to the alleged incapacitated person's credit card account, and is unable to prevent Marilyn from using the proceeds of checks drawn by the alleged incapacitated person payable to Marilyn, for Marilyn's benefit. 15. As a result of the alleged incapacitated person's inability to resist the demands of'her daughter, Marilyn J. Gerber, Marilyn, from August 2000 to the present has removed more than $52,658 the entire amount, from the alleged incapacitated person's checking account at PNC Sank and approximately $9,000, the entire amount, from the alleged incapacitated person's money market account at PNC Bank and charges in the amount of approximately $13,300 have been made to the alleged incapacitated person's credit card, all or about all of which were for Marilyn's benefit, uses and purposes. 3 16. The alleged incapacitated person's monthly expenses amount to approximately $1,800. Approximately $8,000 of the money removed from the money market account was paid on the credit card account. Thus, approximately $12,000 was used for the alleged incapacitated person's maintenance and upkeep of her home. Subtracting the $12,000 used for the alleged incapacitated person and subtracting $8,000 paid on the credit card from the money market account, leaves a balance of approximately $54,958 which Marilyn J. Gerber used or applied for her own benefit. 17. The Petitioner has a;~tempted to protect the Estate of the alleged incapacitated person in the following ways: a. Changed her bank account at PNC Bank in New Cumberland, Pennsylvania, to a new account with the request that if Marilyn appears with her mother and attempts to take money out of the new account, that the Bank notify him first. b. Notified the alleged incapacitated person's credit card company - MBNA - that the account should be closed. c. Notified the Charles Schwab brokerage office in Harrisburg that the Petitioner should be called before any withdrawals were permitted from the Living Trust which is invested by Charles Schwab. d. Requested Jane Heflin, daughter of the alleged incapacitated person, to stay in the alleged incapacitated person's home. e. Requested with Jane that the alleged incapacitated person consult legal counsel with respect to her rights in connection with the Petitioner's intent to ask for the appointment of a Guardian of the Estate of the alleged incapacitated person. 18. These restrictive measures have not been successful because the Petitioner learned as recently as January 1 7, 2001, the following: a. A new credit card account has been established for the alleged incapacitated person and credit cards have been issued to the alleged incapacitated person and to Marilyn J. Gerber. b. On Friday, January 12, 2001, Marilyn J. Gerber took the alleged incapacitated person to the PNC Bank office in New Cumberland, Pennsylvania, and demanded that the bank officer, Jennifer Conway, give to the alleged incapacitated person all of the money in the alleged incapacitated person's newly established 4 account. When Ms. Conway called the Petitioner, by prior arrangement, the Petitioner said his mother should receive $500. After the phone call was terminated, all of the money was removed by the alleged incapacitated person from the new bank account, a total of about $1,300. 19. The Petitioner believes that Marilyn J. Gerber will continue to exert undue influence upon the alleged incapacitated person to obtain monies for Marilyn J. Gerber's own benefit and uses. 20. Marilyn J. Gerber claims that the house at623 Hilltop Drive, New Cumberland, Pennsylvania belongs to her - that her father told her that he wanted her to have it. 21. The Petitioner believes that Marilyn will have a Deed prepared from Mildred J. Gerber to Marilyn J. Gerber transferring the house without consideration and with the alleged incapacitated person either not understanding or unable to resist Marilyn's demands that the house be transferred to Marilyn. 22. On December 26, 2000, Marilyn J. Gerber prepared a document entitled "Revocation by Mildred J. Gerber of all Trusteeships and Powers-of-Attorney", and caused her mother to sign the document, a copy of which is attached hereto as Exhibit "A" and incorporated herein by reference. 23. The Petitioner asked the alleged incapacitated person whether she signed the document and she said she did not, thus evidencing her lack of short-term memory. 24. The Petition,r asked the alleged incapacitated person whether she wished to replace him as her Power-of-Attorney Agent and/or as Trustee of her Living Trust and she said she did not, thus evidencing her confusion. 25. Marilyn J. Gerber attempted to use the document, Exhibit "A", at the New Cumberland Branch Office of PNC Bank to withdraw monies from the alleged incapacitated person's account. 26. Marilyn J. Gerber attempted to use the document, Exhibit "A", to terminate the Petitioner as the Trustee of the alleged incapacitated 5 person's Living Trust at the Harrisburg office of Charles Schwab and attempted to have the Living Trust revoked and all assets in the Trust transferred to the name of the alleged incapacitated person. 27. It is believed that although Marilyn was unsuccessful in attempting to have your Petitioner removed as Trustee of the Living Trust (Schwab account) that she will continue to make the attempt to do so and will have a document prepared for the alleged incapacitated person's signature terminating your Petitioner as Trustee and appointing Marilyn as Trustee of the Living Trust. 28. The Petitioner believes, from the above and from other past experiences, that Marilyn J. Gerber will continue to exert undue influence upon the alleged incapacitated person, that she will continue to obtain monies from the alleged incapacitated person by undue influence, that she will continue to attempt to have the alleged incapacitated person revoke the Petitioner as Trustee of the Living Trust and have the assets transferred to the name of the alleged incapacitated person with subsequent transfer to Mariiyn for Marilyn's own uses and benefits and not for the uses and benefit of the alleged incapacitated person and that by undue influence she will obtain a Power-of-Attorney from the alleged incapacitated person and transfer the residence at 623 Hilltop Drive, New Cumberland, Pennsylvania, to Marilyn J. Gerber as her sole property. 29. Marilyn J. Gerber, for her own uses and benefits and not for the uses and benefits of the alleged incapacitated person, without the permission of the alleged incapacitated person, has removed from the residence of the alleged incapacitated person the following alleged incapacitate~l person's property: jewelry, family photos and records, wedding dress, one rifle and one shotgun, "G" monogrammed silver set, plates, dishes and other dining items, 35 mm. slide projector, 35 mm. slides, 8 mm. movie projector, 8 mm. movie film, records and other personal papers of Fred E. Gerber, the deceased husband of the alleged incapacitated person. In addition, Marilyn J. Gerber, without the permission of the alleged incapacitated person, has removed from the residence of the alleged incapacitated person a wooden sleigh bed belonging to the Petitioner. 30. The Petitioner from past experience, believes that Marilyn J. Gerber will 6 continue to remove property from the home of the alleged incapacitated person at 623 Hilltop Drive, New Cumberland, Pennsylvania, without permission from the alleged incapacitated person or will be unable to prevent Marilyn J. Gerber from removing the items. 31. Marilyn J. Gerber exercised undue influence upon the alleged incapacitated person to become a party to a lawsuit of Marilyn J. Gerber against the Petitioner. 32. The alleged incapacitated person never intended to initiate any legal -' action against the P~titioner. Copy of letter of January 6, 2001, to Joseph U. Metz, attorney of record for the alleged incapacitated person, is marked exhibit "B" attached hereto and incorporated herein. 33. Marilyn J. Gerber demanded the sum of $25,000 from the Petitioner, Trustee of his father's Trust, and the alleged incapacitated person demanded the sum of $25,000 as well. 34. The alleged incapacitated person told the Petitioner that she did not need nor want $25,000. The Petitioner believes that Marilyn J. Gerber exercised undue influence upon the alleged incapacitated person to demand $25,000 from the Trust with intent to convert the alleged incapacitated person's money to Marilyn's own uses, purposes and benefits and not for the benefit of the alleged incapacitated person. 35. The alleged incapacitated person is represented by Jacqueline E. Verney, Esquire, Carlisle, Pennsylvania. The alleged incapacitated person advised Ms. Verney that she did not want Marilyn J. Gerber as her Power-of-Attorney and requested that a new Power-of-Attorney be prepared naming the Petitioner as the Agent, all of which was accomplished on January 19, 2001. 36. The alleged incapacitated person advised her attorney, Ms. Verney, that she did not wish to remove the Petitioner as Trustee of her Living Trust and instructed Ms. Verney to prepare a Revocation of the Revocation removing him as Trustee, all of which was accomplished on January 19, 2001. 37. The alleged incapacitated person stated to the Petitioner that sometimes she does things which Marilyn J. Gerber demands of her because Marilyn's demands are continued over a long period and the alleged 7 incapacitated person gives in to the demands to get some peace and quiet. 38. No other court has ever assumed jurisdiction in any proceeding to determine the competency of the alleged incapacitated person. 39. The Consent of Frederick E. Gerber, II, to act as Guardian is marked exhibit "D", attached hereto and incorporated herein. 40. The Petitioner requests that he be appointed Guardian of the Estate of Mildred J. Gerber, the alleged incapacitated person. 41. Failure to appoint a Guardian of the Estate of Mildred J. Gerber, the alleged incapacitated person, will result in irreparable harm to her Estate. WHEREFORE, The Petitioner respectfully requests this Honorable Court award a citation directed to Mildred J. Gerber, the alleged incapacitated person, with notice thereof to be given to such other persons as this Honorable Court may direct, to show cause why she should not be judged an incapacitated person and Frederick E. Gerber, II, appointed Guardian of her Estate. Respectfully submitted, RUPP AND MEIKLE Sup. Court I.D. No.: 34832 355 North 21st Street, Suite 205 Camp Hill, PA 17011 (71 7) 761-3459 Attorney for Petitioner 8 COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION IN RE: : No. 21-01-92 APPOINTMENT OF A GUARDIAN . OF THE ESTATE OF MILDRED J. GERBER, · '" an alleged incapacitated person . "_0RDE~'i~-F COURT AND NOW, this I'~1-' day of~, 2001, upon consideration of the Petition of Frederick E. Gerber, II, for appointment of a Guardian for Mildred J. Gerber, IT IS HEREBY ORDERED AND DECREED: · A Citation is awarded, directed to Mildred J. Gerber to show cause why Frederick E. Gerber, II, should not be appointed Guardian of her Estate for the purpose of preserving her assets. · At least 20 days notice of the hearing shall be given to Mildred 'J. Gerber, the alleged incapacitated person, by personal service of a copy of the Petition and the Citation, and by service of notice of the hearing, the Petition and Citation, upon the following persons, by personal service or by certified or registered mail: 1. Jane N. Fleflin - daughter 2. Marilyn J. Gerber - daughter A TRUE COPY FROM RECOP..D In Testimony wherof, t .~.=.=, ,,.. ~,~, ~un,~ ":-et my h~nd and the S=al of sc,:d r-' Cumberland County Statement of Frederick E. Gerber, il, proposed Guardian of the E-~tate of Mildred J. Gerber The proposed Guardian is an individual, the son of Mildred J. Gerber, and: 1. Is a citizen of the United States of America and is able to speak, read and write the English language, and 2. Does not reside ~n the same household as Mildred J. Gerber, and 3. Is the Executor of his father's estate (the deceased husband of Mildred J. Gerber) in which estate Mildred J. Gerber has an interest, and 4. Is the Trustee of a Trust established by his father for the benefit of Mildred J. Gerber and other family members, and 5. is the Agent of Mildred J. Gerber appointed in her Power of Attorney, and 6. Is the Trustee of the Living Trust ot Mildrecl J. r~er~er, anti 7. Is the named Executor in the Will of Mildred J. Gerber, and 8. Has no personal interest adverse to Mildred J. Gerber. MILDRED J. GERBER and : THE COURT OF COMMON PLEAS OF MARILYN J. GERBER, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : ORPHANS COURT DIVISION .' VS. : : NO. 00-7831 Equity FRED E. GERBER II, TRUSTEE : CIVIL ACTION- EQUITY Defendant : PLAINTIFF MARILYN J. GERBER'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO DEFENDANT AND NOW, Plaintiff, Marilyn J. Gerber, pursuant to Pa.R. CP. 4009.1, requests the production of documents and things as hereinafter described, within thirty days of service of this request, in the manner prescribed by Pa.R.CP. 4009.12. I. Definitions: As used in this request, the following meanings shall apply: "Document" includes writings, drawings, graphs, charts, photographs, electronically created data, and other compilations of data from which information can be obtained, translated if necessary through detection or recovery devices into reasonably usable form. "Financial Statements" include any data compilation prepared by a bank, credit union, savings bank, savings and loan, brokerage house, investment firm, stock or mutual fund of any sort or other institution or firm which contains or reflects information regarding deposits, withdrawals, debits, credits, transfers, assessments or any other financial transaction. "The Trust" means the trust established by Fred E. Gerber, deceased, on July 29, 1994, and referred to in Plaintiff's Petition for Accounting and Defendant's Answer thereto. "The Trustee" means the Defendant. II. Documents to be produced or made available for copying and inspection: 1. All Financial Statements which reflect any transactions involving trust funds or assets which are, or were at any time after July 29, 1994, held or possessed by the trust. 2. All documents pertaining to any loans made by the trustee or anyone else, from trust funds of assets or using trust funds or assets or which pledged any trust funds or assets as collateral or other security, including, but not limited to: A. Any loan Application, whether formal and informal, or correspondence requesting a loan; B. Any financial disclosures or other documents of any kind, submitted by or on behalf of the loan recipient, or any obligor, for the purpose of securing or extending a loan. C. All documents relied upon by the trustee in making the decision to grant a loan, or submitted to the trustee for the purpose of inducing or supporting a loan; D. Any documents reflecting forgiveness of any loan; E. Any instruments created evidencing any loan or the terms of any loan. 3. Copies of all deposit slips and cancelled checks, drafts or debit reports or other instruments created or used to draw or transfer funds or other assets from the trust. 4. Any register maintained by the trustee or anyone, reflecting any transaction involving trust funds of assets, including but not limited to check or draft registers and the like. 5. Any document submitted to or considered by the trustee requesting the disbursement of trust funds or assets. 6. All receipts for any purchase(s) made by the trustee using any trust funds or assets. 7. Any correspondence from any individual, financial institution or other entity, the subject of which concerns trust funds or assets. Respectfully submitted, Registration No. 46215 Kane and Mackin, LLP 3300 Trindle Rd. Camp Hill, PA 17011-4432 (717) 214-3700 Attorney for Marilyn J. Gerber Date: CERTIFICATE OF SERVICE I, Michael J. Kane, do hereby certify that, on the _12th_ day of December, 2000 I placed a true and correct copy of Plaintiff Marilyn J. Gerber's First Request For Production of Documents Directed to Defendant in the United States Mail, first class postage prepaid, and addressed to: Lindsay Dare Baird, Esquire 37 S. Hanover St. Carlisle, PA 17013 Michael J. Kane - Registration Number 46215 Attorney for Plaintiff Marilyn J. Gerber CALDWeLl~ KearNs A PROFESSIONAL CORPORATION CARL G. WASS JANES R. CLIPPINGER ATTORNEYS AT law oF COUNSEL CHARLES J. D£HART. III RICHARD L KEARNS JAHES D. CAMPBELL, JR. 3631 NORTH FRONT STREET THOMAS D. CALDWELL, JR. JANES L. GOLDSMITH HARRISBURG, PENNSYLVANIA 17110-1533 STANLEY J.A. LASKOWSKI 11928 - 20011 JEFFREY T. NIcGUIRE· DOUGLAS K. MARSICO BRETT H. WOODBURN OOUGLAS E. HERMAN RAY J. ~IICHALOWSKI ?~7-232- 7661 'ALSO A NENBER OF NJ BAR June 19, 2002 FAX: 7,7-~32-2766 thefirm@caldwellkearns.corn Via Facsimile: 730-0214 Richard C. Rupp, Esquire Law Offices of Rupp and Meikle P. O. Box 395 355 North 21s' Street, Suite 205 Camp Hill, PA 17011-0395 RE: Mildred Gerber Access Visits Dear Richard: Unfortunately, our office did not receive your confirmation facsimile for today's visit until later this morning and not in time for Marilyn to make her flight. These scheduling matters would be more expeditiously resolved at less cost to all concerned if the Guardian or even Ms. Heflin would be willing to communicate directly with Marilyn. In any event, our position remains that 1:00 p.m. to 5:00 p.m. (CDT) is when my client can arrange to be available. A 12:00 noon to 4:00 p.m. (CDT) visit is unacceptable. I have been authorized and directed by Marilyn to bring these matters to the Court for a resolution. In the interim, Marilyn can arrange to be in Chicago for a visit with her mother from 1:00 p.m. to 5:00 p.m. (CDT) either on Monday, June 24, 2002 or Friday, June 28, 2002. Please advise which date is acceptable. If you have any questions, please contact me Stanley J. ,~. Laskowski CALDWELL & KEARNS SJAL:sme 41475 cc: Marilyn Jo Gerber