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HomeMy WebLinkAbout06-10-04IN RE: ESTATE OF IN THE COURT OF COMMON PLEAS MILDRED J. GERBER CUMBERLAND COUNTY, PENNSYLVANIA an Incapacitated Person ORPHANS' COURT DIVISION NO. 21-01-92 IN RE: MILDRED J. GERBER TRUST IN THE COURT OF COMMON PLEAS UNDER AGREEMENT DATED CUMBERLAND COUNTY, PENNSYLVANIA DECEMBER 19,1997 ORPHANS' COURT DIVISION NO. 21-2002-0540 IN RE: FRED E. GERBER,SR. TRUST IN THE COURT OF COMMON PLEAS UNDER AGREEMENT DATED CUMBERLAND COUNTY, PENNSYLVANIA JULY 29,1994 ORPHANS' COURT DIVISION NO. 21-1998-Ol 95 May 26,2004 Honorable Judge Hoffer · I have enclosed herewith my Petitions to vacate the original order of NoVember 2003 applying the Soldiers' and Sailors' Relief Act to this case and for a --~ Reconsideration of your order of May 13,2004 entering a Protective Order prohibiting the deposition of Frederick E. Gerber, Il. In the event that the Court decides to hold a hearing, upon notification from your office, I will be glad to advise all parties. Respectfully, /.~ Mafilyn Gerber Pro Se Mr. William Duncan cc: Mr. Richard Rupp Ms Joanne Christine IN RE: ESTATE OF IN THE COURT OF COMMON PLEAS MILDRED J. GERBER CUMBERLAND COUNTY, PENNSLYVANIA an Incapacitated Person ORPHANS' COURT DIVISION NO. 21-01-92 IN RE: MILDRED J. GERBER TRUST IN THE COURT OF COMMON PLEAS UNDER AGREEMENT DATED CUMBERLAND COUNTY, PENNSLYVANIA DECEMBER 19,1997 ORPHANS' COURT DIVISION NO. 21-2002-0540 IN RE: FRED E. GERBER,SR. TRUST IN THE COURT OF COMMON PLEAS UNDER AGREEMENT DATED CUMBERLAND COUNTY, PENNSYLVANIA JULY 29,1994 ORPHANS' COURT DIVISION NO. 21-1998-0195 PETITION AND ORDER OF MARILYN GERBER TO VACATE THE ORDER JUDGE HOFFER ENTERED ON NOVEMBER 2003 GRANTING PROTECTION UNDER THE SOLDIERS' AND SAILORS' RELIEF ACT OF 1940 UNTO FREDERICK E. GERBER, II; AND RECONSIDERATION OF THE ORDER TO QUASH THE~SUPO~ENA OF FREDERICK E. GERBER, II ENTERED ON MAY 13,2004. PETITIONER, Marilyn Gerber, avers the following: I. Under date of November 2003,at the request of the Executor/Trustee,~dge Hoffer entered an order declaring that Colonel Frederick E. Gerber, II was ~itled to the protection of the Soldier's and Sailor's Relief Act due to his service in the US Army out of the country. 2. On February 11,2004, at a designated hearing before the Court appointed auditor, William Duncan, counsel, Mr. Rupp advised the auditOr that Frederick E. Gerber, II was back in the country and that his orders to Iraq has expired. On inquiry from Mr. Duncan, Mr Rupp stated he would quickly file a petition to vacate the order applying the Soldiers' and Sailors' Relief Act of 1940 to Frederick E. Gerber, Il. Attached hereto and made a part hereof, and marked Exhibit A is the letter received by the parties memorializing this fact. 3. On February 11,2004, I contacted the Office of the Army Surgeon General to confirm these facts and it was reported to me that Frederick E. Gerber, II no longer worked there and in fact was in the process of retiring. 4. On February 26,2004, at the request of my brother, Frederick E. Gerber, Il, I had a meeting with him in New Cumberland, PA. regarding possible settlement discussions. My sister Jane N Heflin was also present at this meeting. At this time, Frederick E. Gerber, II confirmed that he was retiring, had some medical issues to take care of and the he was retiring and was eager to settle the estate issues. 5. In April, 2004, I called the Office of the Army Surgeon General and I was informed that Frederick E. Gerber, II was no longer working there and that he was retidng and that Frederick E. Gerber;Il had requested that his new telephone number not be given out to anyone. 6. On May 24,2004, I called the Office of the Army Surgeon General and I was told that Frederick E. Gerber, II was on leave of duty for the month of May and that he would be retiring in early June 2004. This office also informed me that Frederick E. Gerber, II had returned from Iraq in December 2003. 7. On a prior occasion, to wit, March 15,2002, Judge Bayley denied on behalf of Frederick E. Gerber, II to stay proceedings under the Soldiers' and Sailors' Relief Act of 1940 stating in his opinion that Frederick E. Gerber, II has prosecuted his case while on active duty and therefore would have to be available for all ensuing proceedings. 8. Frederick E. Gerber, II has been on active duty in the US Army since he has initiated all judicial proceedings regarding the estates and Trusts of Mildred J Gerber and Fred E. Gerber, Sr from 1998 to present. 9. It is customary for all high ranking military officers to be offered their duty of choice for their last assignment prior to retirement. Frederick E. Gerber, II has been in the US since December 2003; is currently on leave of duty for the month of May 2004 and will retire in early June 2004. Frederick E. Gerber, II has not produced any written military orders for any duty assignment in Iraq or any other duty station that would prevent him from appearing in this Court. 10. Frederick E, Gerber, II had a duty to inform this Court upon his return to the US that he was available for judicial proceedings. 'Frederick E. Gerber, II has failed to do so thereby delaying an audit for 5 months and a scheduled deposition on May 25,2004. Frederick E. Gerber, II has not made himself available for the audit of the Estate and Trusts of Mildred J Gerber and Fred E. Gerber,Sr since November 23,2002. Frederick E. Gerber, II was not present for meetings on February 28, 2003 and June 2003 before William Duncan, Esquire, the auditor. He did not file any continuances due on September 29,2003 as set by William Duncan. Frederick E. Gerber, Il only informed this Court of his duty in Iraq in November 2003, five months after his departure for Iraq. 11. Petitioner avers that Frederick E. Gerber, II has orders to retire in June 2004 and is not in jeopardy of returning to Iraq as he is considered non essential due to his upcoming retirement in June 2004. Petitioner believes that Mr. Rupp and Frederick E. Gerber, II were aware of this and failed to explain this to Mr. William Duncan, Esquire the auditor for the two audits. 12. On May 12, 2004, Frederick E. Gerber, II submitted a joint motion to quash Supoena and motion for protective order pursuant to Pa. R.C.P. 4012. In this motion Frederick E. Gerber, II states that he is on active duty and is still under orders that could return him to Iraq at any moment. This motion conflicts with the information provided to me by the Office of the Surgeon General that stated to me on May 24, 2004 that Frederick E. Gerber, II has been on leave of duty and vacation for the month of May and will retire upon his retum from leave of duty. Therefore, if this information is indeed accurate and I am inclined to accept information from the US Army as being accurate, then this motion submitted to this Court by Frederick E. Gerber, II is inaccurate. Frederick E. Gerber, II also did not include in his motion any written orders from the US Army to support his claim. Therefore, in lieu of Richard Rupp's declaration that Frederick E. Gerber's orders for Iraq had expired when he met with William Duncan and myself on February 11,2004, this Petitioner demands that written military orders be produced to support his motion. 13. Frederick E. Gerber, II and Richard Rupp failed to submit to this Court a properly verified petition of facts and knowledge in their petition to quash of May 12, 2004. 14. Richard Rupp in his motion filed certification of service by mail upon Marilyn Gerber on May 12,2004. 15. On May 13,2004, Judge Hoffer issued a protective order prohibiting the deposition of Frederick E. Gerber, II for his deposition scheduled on May 25,2004. This order was granted based on information stated by Frederick E. Gerber, II that he had orders that would return him to Iraq. In the absence of written orders from the US Army and the information that Frederick E. Gerber, II is actually on leave of duty and on vacation, Petitioner requests that this order be vacated. 16. Petitioner avers that she has been deprived of due process of law as she never had any opportunity to defend, plead or be heard. These proceedings were exparte as petitioner was not advised of any date or time to be present in court to contest this relief. 17. Petitioner avers that the Executor Trustee is bent upon a course of delay tactics in the handling of this estate and Trust and has misappropriated assets, negligently depleted the estate and otherwise mismanaged his fiduciary trust and should be surcharged. 18. Petitioner avers that unless the prior order of Judge Hoffer is vacated discovery cannot proceed against him in the audit of the case before William Duncan, Esquire and a deposition scheduled by Marilyn Gerber for Frederick E. Gerber, II cannot be completed prior to the discovery deadline of June 15,2004 as established by the auditor, William Duncan, Esquire. WHEREFORE, Petitioner respectfully requests that this Court vacate its order of of November 2003 applying the protection of the Soldiers' and Sailors' Civil Relief Act to the Executor Trustee, Frederick E. Gerber, Il. This Court is further requested to grant Petitioner, Madlyn Gerber, request for reconsideration of the order of May 13,2004 and to rescind this Court's order quashing the Supoena of Frederick E. Gerber, Il. Pe~l~ro S~~e Duncan, Hartman & Douglas, P.C. Attorneys at Law One Irvine Row Carlisle, Pennsylvania 17013 William A. Duncan (717) 249-7780 Susan $. Hartman FAX (717) 249-7800 George E Douglas, III February 13, 2004 dhdlaw~planetcable.net Joanne Book Christine, Esquire Marilyn Jo Gerber Rhoads & Sinon, LLP 717 Market Street # :}17 One South Market Square, 12th Fl. Lemoyne, PA 17043 P.O. Box 1146 Harrisburg, PA 17108-11465 RE: Auditorship No: 21-2002-540 Trust of Mildred J. Gerber Dear Counsel: This letter will serve to review our meeting of February 11, 2004 in which we discussed the status and anticipated schedule for this Audit. We will proceed as follows: 1. The parties to the Audit are Marilyn Gerber, Objector and PNC, Trustee .and .Accountant.  2. Richard Rupp, Esquire represents an interested party (Col. Fred Gerber) and will be attending future conferences and hearings. 3. Marilyn Gerber's submission of Objection to the account included one filing with a caption for both of the Audits in question. Therefore Marilyn will ref'de her objections specifying her objections as to each account (No: 21-2002-540 and No: 21-2001-92. 4. Joanne B. Christine and Richard Rupp have agreed to submit by letter a history of the trust and estates involved in the various Audits so that the Auditor can better define the issues. 5. There are other proceedings involving Marilyn Gerber and Fred Gerber which were stayed during his overseas service with the military.  6. Richard Rupp has indicated that the stays will be vacated shortly so that those proceedings can continue. 7. The Auditor expects that all the proceedings involving matters related to Mildred and Fred Gerber, now both deceased will be heard in 2004. 8. The discovery process and scheduling of the Audit in the above captioned matter will be set in light of the litigation of the other matters. 9. Discovery in the above captioned matter including depositions will be concluded by June 15, 2004. 10. A Pre-Hearing Conference will be held on July 15, 2004 at 1:30 P.M. in the 2nd Floor Hearing Room of the Old Cumberland County Courthouse. Counsel will supply to each other and the Auditor n Pre-Hearing memo detailing the outstanding issues, relevant legal authority together with the names of witnesses, nnture of testimony and estimated time to be consumed by a hearing. 11. The hearing will begin on Monday, August 16, 2004 nt 9:30 A.M. in the 2nd Floor Hearing Room of the Old Cumberland County Courthouse and will continue on August 17, 2004. A companion case of 21-2001-92 will also be heard on the same days. 12. On or before October 1, 2004 the parties will submit to the Auditor proposed findings supporting legal authority nnd a brief in support of its .position to each other and the Auditor. 13. The Auditor will issue a decision by December 15, 2004. 14. The Auditor will be applying to the Court for nn extension of time to perform his duties consistent with this schedule. A copy of the Order will be forwarded to you after execution by the Court. Thank you for your anticipated cooperntion in this matter. Sincerely, Duncan, Hartman & Douglas, P.C. Auditor cc: R. Rupp WAD/cd VERIFICATION I, Marilyn Gerber deposes and says, subject to the penalties of 18 p.c.. 4904 relating to unsworn falsification to authorities, that he/she is authorized to make this verification and the facts set forth in the foregoing Motion to Vacate the Soldiers' and Sailors' Act of 1940 are true and correct to the best of his/her knowledge, information and belief, IV~ilyn G~e~r/Pr°se CERTIFICATE OF SERVICE AND NOW,this ~day of//////.~ 2004, I hereby certify that I have served n' // a copy of the within ocume t on th~ following by depositing a true and correct copy of the same in the US Mail, postage prepaid, addressed to: Mr. Richard Rupp, Esquire 355 North 21 st Street Camp Hill, PA 17011 Ms Joanne Christine, Esquire Rhoads & Sinon One South Market Square Harrisburg,PA 17108 Mr. William Duncan, Esquire One Irvine Row Carlisle, PA 170~3