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HomeMy WebLinkAbout04-01-05 (2) Joanne E. Book, Esquire Attorney I.D. No. 82028 Heather Zink Kelly Attorney I.D. No. 86291 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for PNC Bank, N.A. :- J ~ r'..) +.- IN RE: ESTATE OF MILDRED J. GERBER, an Incapacitated Person : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : ORPHANS' COURT DNISION : No. 21-01-92 INRE: MILDRED J. GERBER TRUST UNDER AGREEMENT DATED DECEMBER 19,1997 : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : ORPHANS' COURT DNISION : NO. 21-2002-0540 ANSWER AND NEW MATTER OF PNC BANK. N.A.. TO PETITION TO PLACE ALL ASSETS OF THE MILDRED J. GERBER ESTATE AND TRUST IN ESCROW NOW COMES, PNC Bank, N.A. (hereinafter "PNC"), Guardian of the Estate of Mildred J. Gerber, an incapacitated person (the "Guardianship Estate"), and Trustee of the Mildred J. Gerber Trust under Agreement dated December 19, 1997, as amended, revised and restated (the "Trust") by and through counsel, Rhoads & Sinon LLP, and files this Answer and New Matter to the Petition of Marilyn Gerber to Place all Assets of the Mildred J. Gerber Estate and Trust in Escrow, as follows: 1. Admitted in part and denied in part. It is admitted that Marilyn J. Gerber ("Ms. Gerber") is the eldest child of Mildred J. Gerber who died on January 14,2003. It is denied that Ms. Gerber is a full beneficiary of the Estate or Trust. 5SliU1.1 ~s'\f.- 2. It is admitted that Ms. Gerber filed Objections to Accounts filed by PNC with regard to the Guardianship Estate and Trust and that a Hearing was held on those Objections on September 28-29,2004. 3. It is admitted that both PNC and 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. By way of further answer, 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. 4. PNC is no longer involved in the proceedings referenced in Paragraph 4, and therefore without sufficient information to form a responsive pleading to the allegations contained in Paragraph 4. The same are therefore denied. 5. PNC is no longer involved in the proceedings referenced in Paragraph 5, and therefore without sufficient information to form a responsive pleading to the allegations contained in Paragraph 5. The same are therefore denied. 6. PNC is no longer involved in the proceedings referenced in Paragraph 6, and therefore without sufficient information to form a responsive pleading to the allegations contained in Paragraph 6. The same are therefore denied. 7. Denied in part and admitted in part. It is admitted that Ms. Gerber filed her Brief as to the Objections she filed to the Accounts filed by PNC as Guardian and Trustee. PNC is without sufficient information to form a responsive pleading to the remaining allegations contained in Paragraph 7. The same are therefore denied. - 2 - 8. The allegations of Paragraph 8 constitute legal conclusions to which no response is required. To the extent a response is deemed appropriate, the same are denied. 9. The allegations of Paragraph 9 constitute legal conclusions to which no response is required. To the extent a response is deemed appropriate, the same are denied. 10. The allegations of Paragraph 10 constitute legal conclusions to which no response is required. To the extent a response is deemed appropriate, the same are denied. 11. Denied as stated. By way of further answer, PNC will distribute the assets of the Guardianship Estate as directed by this Court. 12. Denied. 13. Denied. 14. Denied. 15. PNC is without sufficient information to form a responsIve pleading to the allegations contained in Paragraph 15. The same are therefore denied. 16. PNC is without sufficient information to form a responsive pleading to the allegations contained in Paragraph 16. The same are therefore denied. 17. PNC is without sufficient information to form a responsive pleading to the allegations contained in Paragraph 17. The same are therefore denied. 18. PNC is without sufficient information to form a responsive pleading to the allegations contained in Paragraph 18. The same are therefore denied. 19. To the extent that the statements in Paragraph 19 are allegations which require a responsive pleading, the allegations are denied. 20. To the extent that the statements in Paragraph 20 are allegations which require a responsive pleading, the allegations are denied. -3- 21. To the extent that the statements in Paragraph 21 are allegations which require a responsive pleading, the allegations are denied. NEW MATTER 22. 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"). The Guardianship Account states transactions from March 23, 2001 through October 20, 2003. 23. 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"). The Trust Account states transactions from October 3, 2001 through October 20,2003. 24. PNC has no further involvement in the Frederick E. Gerber Revocable Trust dated July 29, 1994, and any and all matters relating to said Trust are unrelated to the Guardianship Account and Trust Account. 25. On or about November 21, 2003, Ms. Gerber filed Objections to both the Trust Account and Guardianship Account (the "Objections"). 26. 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 filed by PNC, which appointment has been continued by this Court in several additional Orders. 27. A Hearing was held on the Objections to the Trust Account and Guardianship Account filed by PNC on September 28-29,2004, before Auditor Duncan. 28. Both PNC and Ms. Gerber have presented proposed Auditor's Reports and/or Briefs to Auditor Duncan based on the evidence presented at the Hearing. -4- 29. PNC has not yet received a decision from Auditor Duncan regarding the Trust Account or Guardianship Account. 30. In the Statement of Proposed Distribution for the Guardianship Account, PNC requests that all remaining assets of the Guardianship Estate be distributed to the Executor of Mildred J. Gerber's Estate for administration under her Will. 31. On February 6, 2003, the Will of Mildred J. Gerber was admitted to probate by the Register of Wills for Cumberland County and her son, Frederick E. Gerber, II (the "Executor") was awarded Letters Testamentary pursuant to ITEM V of her Will. 32. The Executor will be subject to fiduciary duties and review by this Court in his performance of his duties as Executor of the Estate if the Court confirms the Guardianship Account and orders distribution of the assets of the Guardianship Estate to the Executor. 33. Ms. Gerber has failed to state any basis for requiring that the assets of the Guardianship Estate be placed in escrow. 33. In the Statement of Proposed Distribution for the Trust Account, PNC requests that all remaining assets of the Trust be distributed back to PNC as Trustee for continued distribution under the Trust. 34. PNC will be subject to continuing fiduciary duties as Trustee in administering the assets of the Trust. 35. Ms. Gerber has failed to state any basis for requiring that the assets of the Trust be placed in escrow. 36. Ms. Gerber has failed to state a claim upon which relief may be granted. 37. Ms. Gerber's claims are barred, in whole or in part, by the doctrine oflaches. -5- 38. Ms. Gerber's claims are barred, in whole or in part, by the doctrines of waiver and/or estoppel. 39. Ms. Gerber's claims are barred, in whole or in part, by the doctrine of unclean hands. 40. Ms. Gerber's damages, if any, are caused by her failure to mitigate. 41. In the event that Ms. Gerber has suffered damages or loss, which is denied, such damages or loss were caused, in whole or in part, by the actions of Ms. Gerber. 42. In the event that Ms. Gerber has suffered damages or loss, which is denied, such damages or loss were caused, in whole or in part, by the acts of third parties, over whom PNC had no control. WHEREFORE, PNC Bank, N.A., respectfully requests that this Court deny the Petition to Place all Assets of the Mildred J. Gerber Estate and Trust in Escrow, and order the distribution of such assets upon confirmation of the Guardianship Account and Trust Account ofPNC Bank, N.A., by the Auditor in this matter, as requested in the Statements of Proposed Distribution filed by PNC Bank, N.A. Respectfully submitted, RHOADS & SINON LLP By: o e E. Book H ather Zink Kelly ne South Market Square P. O. Box 1146 Harrisburg, P A 17108-1146 (717) 233-5731 Attorneys for PNC BANK, N.A. -6- VERIFICATION David A. Brown, deposes and says. subject to the penalties of 18 Pn. C.S. ~4904 relating to unsworn falsification to authorities, that he is the Vice President of PNC Bank, N.A., that he makes this verification by its authority and that the facts set forth in the Answer and New Matter to the Petition of Marilyn Gerber to Place all Assets of the Mildred J. Gerber Estate and Trust in Escrow are true and correct to the best of his Im.owledge, information and belief Date ~ j, /IJS , . ~..~ ~ David A. Brown CERTIFICATE OF SERVICE I hereby certify that on April 1, 2005, a true and correct copy of the Answer and New Matter to the Petition of Marilyn Gerber to Place all Assets of the Mildred J. Gerber Estate and Trust in Escrow was served by U.S. mail, certified, return receipt requested, upon the following: Marilyn J. Gerber 717 Market Street, #317 Lemoyne, P A 17043 and by U.S. mail, first class, postage pre-paid, upon the following: Richard C. Rupp, Esquire Rupp and Meikle 335 North 21 st Street, Suite 205 Camp Hill, PA 17011 William A. Duncan, Esquire Duncan, Hartman & Douglas, P.c. One Irvine Row Carlisle, P A 17013 kp~~ fhannon Whitson 516513.1