Loading...
HomeMy WebLinkAbout05-12-04 IN RE: ESTATE OF : IN THE COURT OF COMMON PLEAS OF MILDRED J. GERBER : CUMBERLAND COUNYY, PENNSYLVANIA an incapacitated person : ORPHANS' COURT DIVISION : NO. 21-01-92 IN RE: : IN THE COURT OF COMMON PLEAS MILDRED J. GERBER TRUST : CUMBERLAND COUNTY, PENNSYLVANIA UNDER AGREEMENT DATED : ORPHANS' COURT DIVISION DECEMBER 19, 1997 : : NO. 21-2002-0540 JOINT MOTION TO qUASH SUBPOENA AND MOTION FOR PR~CTIVE ! ORDER PURSUANT TO Pa. R.C.P. 4012 :~ ' ~ NOW COMES, Richard C. Rupp, Esquire, your Movant, on behalf of -~ Frederick E. Gerber, II, by and through counsel, Rupp and Meikle,~ as well a~s Richard C. Rupp, Esquire, and Herbert G. Rupp, Esquire, through Rupp and Meikle, and files the within Joint Motion to Quash Subpoenas and for Protective Order pursuant to Pa. R.C.P. 4012, and, in support thereof, avers as follows: 1. In the first of the above-captioned actions, PNC Bank ("PNC") was appointed Guardian of the Estate of Mildred J. Gerber (hereinafter the "Guardianship Estate") on March 22, 2001. 2. In the second of the above-captioned actions, on October 3, 2001, acting as Guardian of Mildred J. Gerber, PNC removed Frederick E. Gerber, II, as Trustee and designated PNC as successor Trustee of the Mildred J. Gerber Revocable Trust, dated December 19, 1997, as amended and restated (hereinafter the "Trust"). 3. PNC Vice President and Trust Officer David Brown has served as both the administrator of the Guardianship Estate and as the administrator of the Trust since the time that PNC has administered both. 4. Mildred Gerber died on January 14, 2003. 5. Col. Frederick E. Gerber, II, Mildred J. Gerber's son, was duly appointed Executor of Mildred's Estate. 6. On October 24, 2003, PNC filed an accounting of the administration of the Trust since the time that PNC became Successor Trustee on October 3, 2001 (the "Trust Account"). 7. On October 24, 2003, PNC filed an accounting of its administration of the Guardianship Estate since the time that PNC was appointed Guardian on March 22, 2001 (the "Guardianship Account"). 8. Marilyn Jo Gerber ("Ms. Gerber"), Mildred Gerber's daughter, has filed Objections to both the Trust Account and Guardianship Account. 9. By Orders dated November 25, 2003, this Court appointed William Duncan, Esquire, as Auditor in both of the above matters to hear the Objections filed by Ms. Gerber to the Trust Account and Guardianship Account. 10. In a matter no longer involving PNC, Ms. Gerber filed objections to accountings that Frederick E. Gerber, II, filed for the time period during which he acted as Trustee of the above Trust, as well as Trustee of the Frederick E. Gerber Revocable Trust dated July 29, 1994. PNC was substituted by Jacqueline Verney, Esquire, by Order of this Court dated June 27, 2003, to pursue the objections filed to the accountings filed by Frederick E. Gerber, II. 11. By correspondence dated April 27, 2004, Ms. Gerber has indicated that she wants to depose certain individuals including as follows: Richard Rupp, Esquire, Herbert Rupp, Esquire, both of Rupp and Meikle, P.C., and Frederick Gerber, II. Correspondence is attached hereto and incorporated herein as Exhibit "A". 12. Via correspondence dated May 11, 2004, Rupp and Meikle informed Ms. Gerber that both Richard Rupp and Herbert Rupp were at all times involved attorneys and legal counsel for Frederick Gerber, II, who has served as his father's Executor, his mother's Power of Attorney, Trustee for his father's Trust, Trustee for his mother's Trust and now Executor of 2 his mother's Estate. Frederick E. Gerber is still in active duty with the United States Army and is still under Orders that could return Col. Frederick E. Gerber, II, to Iraq at any moment to serve in Operation Iraqi Freedom, in connection with the United States Military Central Command and the on site command of Paul Brehmer in Iraq. Therefore, Col. Gerber is under the continued protection of the Soldiers & Sailors and Relief Act, a federal Act protecting soldiers and sailors from appearing in Court matters when needed, if their services are subject to the United States Military. 13. Rupp and Meikle informed Ms. Gerber that Richard Rupp's and Herbert Rupp's testimony is strictly protected as confidential as being legal advice protected with the attorney client confidentiality privilege at all times to Col. Frederick E. Gerber, and therefore, her subpoenas to Richard Rupp, Esquire, and Herbert Rupp, Esquire, are opposed and your Movant respectfully requests both of these subpoenas be quashed. 14. With respect to Col. Frederick E. Gerber, his subpoena is also objected to and Rupp and Meikle advised Ms. Gerber that it would be requested to be quashed by reason of the Soldiers & Sailors Relief Act. Correspondence dated May 11, 2004 is attached hereto and incorporated herein by reference as Exhibit "B". 15. Further, the testimony eventually of Col. Frederick E. Gerber as a fact witness would appear to be the appropriate testimony as he was the active participant in all dealings as the Trustee for his mother's Trust before PNC and/or Trustee of his father's Trust or Executor of his father's Estate or Executor of his mother's Estate, rather than Richard Rupp, Esquire, and Herbert Rupp, Esquire, as attorneys for Col. Frederick E. Gerber in those capacities. 3 WHEREFORE, Richard C. Rupp, Esquire, your Movant, respectfully requests this Honorable Court to quash the subpoenas directed to Richard Rupp, Esquire, Herbert Rupp, Esquire, and Frederick E. Gerber, II, and further requests that this Honorable Court enter a Protective Order prohibiting Ms. Gerber from deposing these individuals at the stated time and place in her subpoenas. RUPP AND MEIKLE 355 g. 21st St., Ste. 205 Camp Hill, PA 17011 717-761-3459 Attorneys for Richard Rupp, Esquire, Herbert Rupp, Esquire, and Col Frederick E. Gerber, II Date: ~~If 4 CERTIFICATE OF SERVICE AND NOW, this tL d~ay of May, 2004, I hereby certify that I have served a copy of the within document on the following by depositing a true and correct copy of the same in the U. S. Mail at Harrisburg, Pennsylvania, postage prepaid, addressed to: Ms. Marilyn J. Gerber 717 Market St., No. 317 Lemoyne, PA 17043 Joanne Book Christine, Esquire Rhoads & Sinon, LLP One South Market Square P. O. Box 1146 Harrisburg, PA 171, :hard C. April 27,2004 Rhoads & Sinon One South Market Street PO Box 1146 Harrisburg, PA 17108 Dear Ms. Christine: ~.. I am hereby notifying you of depositions that I have scheduied. I will arrange for the court reporter. I. Mr. Jeff Roes of Charles Schwab, Harrisburg Branch at 22 A North 2nd Street, Harrisburg, PA. This deposition is scheduled on May 11,2004 at 10 AM. 2. Mr. Brian Rheam of Charles Schwab, Harrisburg Branch at 22 A North 2nd St. Harrisburg, PA. This deposition is scheduled on May 11,2004 at I PM. 3. Ms Jennifer Conway of PNC Bank, Branch Manager of PNC New Cumberland. This deposition is scheduled on May 20,2004 at '10 AM. 4. Mr. Frederick E Gerber, II in the offices of Rupp & Meikle, Camp Hill,PA. This deposition is scheduled on May 25,2004 at 10 AM. 5. Mr. Richard Rupp in the offices of Rupp & Meikle, Camp Hill,PA. This deposition is scheduled on May 25,2004 at I PM 6. Mr. Herbert Rupp in the offices of Rupp & Meikle, Camp Hill,PA. This deposition is scheduled on May 25,2004 at 2 PM I will depose Mr. David Brown on May 20, 2004 at I PM in his office in Camp Hill so that I can see original documents as is my right. If you refuse me to depose him in his office, then advise him to bring all original documents concerning the estate and the Trust of Mildred J Gerber. I shall also depose Ms Denise Sullenberger and Ms Carol Yon on May 20, 2004 following Dave Brown's deposition. Since the Court has not filed any ruling objecting to their deposition, then I shall proceed. Mr. Duncan has not ruled either. Please advise Ms Sullenberger and Ms Yon of my deposition. As you are aware, there are other Objections to Accounting for the Trusts of Mildred J Gerber and Fred E Gerber, Sr. As you known, PNC has substituted themselves from these cases. I have the right of discovery and therefore I have the right to request that documents be produced as well as see the originals. I will address the Court regarding your consistent refusal for over 2 years to prevent me from seeing any accounting, receipts, bills, debits or transactions. You are aware that I am a beneficiary and that this Court has ordered an audit. I am not aware how an audit can be performed, examined and finalized without seeing any documents. Am I to believe that you wish the Court and Mr. Duncan to sign off on just PNC's line accounting without reviewing any documents? This would surely set a worldwide precedent in the banking world and the pressl! How would anyone ever want to ask your bank to be Guardian of Estate if your bank refused examination of financial accounting. How would any beneficiary ever really know their rightful inheritance. I am requesting that I may review the original documents at PNC Financial Advisors at their Camp Hill office on May 18,2004 during business hours. At that time, ! will indicate which documents I wish to be copied. If you deny me the right to review documents, then I am sure that you realize that my deposition of Dave Brown on May 20,2004 will be limited. If the Court rules after the deposition of Dave Brown on May 20,2004, that I may request and receive all of the documents that I have requested, then I will schedule another deposition based on these documents. When you should send me any correspondence, I would appreciate it if you would send me a fax indicating that you have sent me correspondence. Please fax to 717 737-7116 attention: Marilyn Gerber. Sincerely, Marilyn Gerber PS Please do not send any mail or certified mail to 42 Drexel Place, New Cumberland,PA. My official address is 717 Market Street, #317,LemoyneAP. 17043. This is a waste of money and I object to my mother's account being charged for needless expense as I have listed my address with the Court for over a year. .LAW OFFICES RUPP AND MEIKLE A PROFESSIONAL CORPORATION 355 NORTH 21ST STREET, SUITE 205 HERBERT G. RUPP, JR. CAMP HILL, PA 17011 MAILING ADDRESS RICHARD C. RUPP (717) 761-3459 P.O. BOX 395 ANN MEIKLE ERIKSSON (1954-82) E-MAIL: RUPPLAWI~AOL.COM CAMP HILL, PA 17001-0395 May 1 1, 2004 TELEFAX: (717~ 730-0214 Ms. Marilyn J. Gerber 71 7 Market Street, No. 317 Lemoyne, PA 1 7043 Dear Marilyn: Please be advised that we object and oppose your subpoenas to Richard Rupp, Esquire, Herbert Rupp, Esquire, and Col. Frederick E. Gerber, II, in connection with the Accounts filed by PNC Bank to In Re. Estate of Mildred J. Gerber, an incapacitated person, and In Re. Mildred J. Gerber Trust under Agreement dated December 19, 1997. The reason for this opposition is that Herbert Rupp, Esquire, and Richard Rupp, Esquire, acted as legal co. unsel to Col. Frederick E. Gerber, II, in whatever capacity he was involved w~th and therefore any discussions in all other matters are protected by attorney client confidentiality. Furt.h. er, the subpoena to Col. Frederick E. Gerber is opposed.by reason of the Soldiers and Sailors Relief Act still applies in that Col. Frederick E. Gerber is still on active duty with the United States Army and is still under Orders that can return Col. Gerber to Iraq at any moment to serve in Operation Iraqi Freedom an..d .t.o be placed by Central Command in Iraq as part of Paul Brehmer's rebudd~ng team. As such, we will be filing a Motion similar to PNC Bank's Motion to Quash your Subpoenas and for Protective Motion, so as not to appear for your deposition. RV~j~,urs, ichard C.~~R~ RCR/lin