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HomeMy WebLinkAbout10-28-02 Amy 1. Mendelsohn Attorney ID No. 81084 Rhoads & Sinon LLP One South Market Square P. O. Box 1146 Harrisburg, P A 17108-1146 (717) 233-5731 Attorneys for Petitioner ~.. IN RE: GUARDIANSHIP OF THE ESTATE OF MILDRED J. GERBER, : AN INCAPACITATED PERSON IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY COMMONWEALTH OF PENNSYL VANIA ORPHANS' COURT DIVISION NOs. 21-01-92 and 21-2002-0540 ANSWER OF PNC BANK, N.A. TO "MOTION TO REQUEST THE GUARDIAN OF THE ESTATE PNC BANK TO PRODUCE A COST ANALYSIS OF HOMECARE OF MILDRED J. GERBER IN HER HOME IN NEW CUMBERLAND AND CARE IN LOMBARD, ILLINOIS AND AT SUNRISE ASSISTED LIVING IN GLEN ELLYN, ILLINOIS INCLUDING ALL EXPENSES" NOW COMES, Respondent, PNC Bank, N.A. by and through its counsel, Rhoads & Sinon LLP, and file the within Answer to "Motion to Request the Guardian of the Estate PNC Bank to Produce a Cost Analysis of Homecare of Mildred J. Gerber in her Home in New Cumberland and Care in Lombard, Illinois and at Sunrise Assisted Living in Glen Ellyn, Illinois Including All Expenses," as follows: 1. Denied as stated. It is denied that Petitioner is a remainder beneficiary of the Mildred J. Gerber Trust and the Fred E. Gerber, Sr. Trust. Petitioner shall be a beneficiary of the Mildred J. Gerber Trust only if the assets of the Trust exceed $370,000 at the time of Mildred Gerber's death. Petitioner shall be a remainder beneficiary of the Fred E. Gerber, Sr. Trust only if Petitioner survives Mildred Gerber by one year. 2. Admitted. 441315.1 3. Denied as stated. On March 22, 2001, this Court appointed Respondent plenary guardian of the estate of Mildred J. Gerber. 4. Denied. Respondent, after reasonable investigation, is unable to determine the truth of these allegations and therefore denies these allegations. 5. Denied. Respondent, after reasonable investigation, is unable to determine the truth of these allegations and therefore denies these allegations. Respondent is not a party to the proceedings relating to the guardianship of the person of Mildred J. Gerber. 6. Admitted in part, denied in part. It is admitted that this Court ordered Mildred J. Gerber to appear at a hearing on January 28, 2002 regarding visitation by Petitioner. Respondent, after reasonable investigation, is unable to determine the truth of the remainder of these allegations and therefore denies these allegations. 7. Admitted in part, denied in part. It is admitted that Fred E. Gerber filed for a continuance of the January 28, 2002 hearing due to his military responsibilities. The remainder of the allegations are denied. 8. Denied. 9. Denied. Respondent, after reasonable investigation, is unable to determine the truth of these allegations and therefore denies these allegations. 10. Denied. -2- 11. Denied. Respondent, after reasonable investigation, is unable to determine the truth of these allegations and therefore denies these allegations. 12. Denied. This is a legal conclusion to which no response is required. To the extent a response is required, these allegations are denied. Proof thereof, if relevant, is demanded at time of trial. 13. Denied. Respondent, after reasonable investigation, is unable to determine the truth of these allegations and therefore denies these allegations. 14. Denied. Respondent, after reasonable investigation, is unable to determine the truth of these allegations and therefore denies these allegations. 15. Admitted. 16. Denied. Respondent, after reasonable investigation, is unable to determine the truth of these allegations and therefore denies these allegations. 17. Denied. Respondent, after reasonable investigation, is unable to determine the truth of these allegations and therefore denies these allegations. 18. Denied. Respondent, after reasonable investigation, is unable to determine the truth of these allegations and therefore denies these allegations. 19. Admitted in part, denied in part. It is admitted that Respondent hired North American Van Lines to move Mildred J. Gerber's personal property from her house at 623 Hilltop Drive, New Cumberland, Pennsylvania on October 1, 2002. It is admitted that Dave - 3 - Brown, Denise Sullenberger, A.J. Mendelsohn, and another woman, unidentified to Petitioner, were present at 623 Hilltop Drive at times on October 1, 2002. It is further admitted that Marilyn Gerber objected to the move and called the local police. The remaining allegations are denied. 20. Admitted in part, denied in part. It is admitted that Dave Brown stated to Petitioner on October 1, 2002 that Mildred J. Gerber's home would be sold. The remainder of these allegations are denied. 21. Admitted in part, denied in part. It is admitted that Petitioner sent a letter to Respondent dated October 1, 2002 and a letter dated October 2,2002. By way of further answer, the letters dated October 1, 2002 and October 2, 2002 speak for themselves. The remainder of the allegations are denied. 22. Admitted. 23. Admitted in part, denied in part. It is admitted that on August 27,2002, Petitioner filed Objections to Fred E. Gerber, Jr.'s Accountings of the Fred E. Gerber, Sr. Trust and the Mildred J. Gerber Trust. The remainder of the allegations are denied. 24. Denied. The responsibilities of the Respondent as guardian of the estate are a legal conclusion to which no response is required. To the extent a response is required, these allegations are denied. Proof thereof, if relevant, is demanded at time of trial. By way of further answer, the remainder of the allegations are denied as Respondent, after reasonable investigation, is unable to determine the truth of these allegations. -4- 25. Denied. It is denied that Mildred J. Gerber essentially has been imprisoned in Illinois since December 25, 2001. Respondent, after reasonable investigation, is unable determine the truth of the remainder of Petitioner's allegations and therefore denies these allegations. 26. Denied. Respondent, after reasonable investigation, is unable to determine the truth of these allegations and therefore denies these allegations. 27. Admitted. 28. Denied. 29. Denied. Respondent, after reasonable investigation, is unable to determine the truth of these allegations and therefore denies these allegations. 30. Denied. 31. Denied. Respondent, after reasonable investigation, is unable to determine the truth of these allegations and therefore denies these allegations. 32. Denied. NEW MATTER 33. Respondent incorporates by reference the answers to paragraphs 1 through 32 as though set forth here at length. - 5 - 34. Respondent, as plenary guardian of the estate of Mildred J. Gerber, is responsible for administering the assets of the guardianship estate of Mildred J. Gerber in accordance with the powers and duties enumerated in 20 Pa. C.S. S 5521(b). 35. Fred E. Gerber, Jr. was appointed plenary guardian of the person of his mother, Mildred J. Gerber, by Order of this Court on December 21,2001. 36. As guardian of the person of Mildred J. Gerber, Fred E. Gerber, Jr. has the duty to assert the rights and best interests of Mildred J. Gerber. See 20 Pa. C.S. S 5521(a). Fred E. Gerber, Jr. has the authority as guardian of the person to determine what living arrangements are best for Mildred J. Gerber. 37. In January, 2002, Fred E. Gerber, Jr. concluded that it was in his mother's best interests to live in the home of her daughter, Jane N. Heflin, in Lombard, Illinois. 38. In September, 2002, Fred E. Gerber, Jr. concluded that it would be in Mildred J. Gerber's best interests to move to the Sunrise Assisted Living Facility. 39. The policy of Respondent has been to review all bills for the nursing care and living expenses of Mildred J. Gerber to determine if the cost of services provided is reasonable in accordance with 20 Pa. C.S. S 5536(a). 40. To date, Respondent has determined that all charges for the care of Mildred J. Gerber have been reasonable, and Respondent has paid such bills. 41. To the extent that the costs for the nursing care and other living expenses of Mildred J. Gerber are reasonable, Respondent will not interfere with Fred E. Gerber's exercise of - 6 - his authority, as guardian of the person of Mildred J. Gerber, regarding the appropriate care and living arrangement for Mildred J. Gerber. 42. Respondent explained its procedure to Petitioner in a letter to her dated July 12, 2002. A true and correct copy of such letter is attached hereto and incorporated herein as Exhibit "A" . 43. At the April 25, 2002 meeting with Petitioner, Respondent provided Petitioner with comprehensive statements of Mildred J. Gerber's guardianship account from the inception of the guardianship, and of the Mildred J. Gerber Revocable Trust from the commencement of Respondent's trusteeship. These statements report the payments for nursing care and living expenses. 44. In response to Petitioner's request for information, Respondent began sending quarterly statements of Mildred J. Gerber's guardianship account and the Mildred J. Gerber Revocable Trust to Petitioner, as well as Fred E. Gerber, Jr. and Jane Heflin, beginning with the quarter ending July 31, 2002. 45. Fred E. Gerber, Jr., not Respondent, is trustee of the Fred E. Gerber, Sr. Trust. Accordingly, Respondent does not decide what expenses relating to the care of Mildred J. Gerber shall be paid from the Fred E. Gerber, Sr. Trust. 46. Petitioner's inability to communicate with Respondent in a reasonable, calm and organized fashion regarding Mildred J. Gerber's guardianship estate has resulted in the dissipation of Mildred J. Gerber's assets by legal fees and other costs. - 7- WHEREFORE, Respondent, PNC Bank, N.A., guardian of the estate of Mildred J. Gerber, an incapacitated person, respectfully requests that this Honorable Court deny Petitioner's motion in its entirety, award PNC Bank, N.A. attorneys' fees and expenses incurred in defending this Motion, and award such other relief as it appropriate. RHOADS & SINON LLP By: ~ ndelsohn, Esquire Supr ourt ID# 81084 One South Market Square P. O. Box 1146 Harrisburg, P A 17108-1146 (717) 233-5731 Date: IOIZ~" J02 Attorneys for Respondent, PNC Bank, N.A. - 8 - OCT-28-2002 08:39 PNC BANK 717 730 2254 P.02/02 VERIFICA nON /),q"IJ/::> A.. &z.ow"/ , the kvsl- OI=HCI:R.. ofPNC Bank, N.A., deposes and says, subject to the penalties of 18 Pa. C.S. ~4904 relating to unsworn falsification to authorities, that he/she is authorized to make this verification on behalf of the PNC Bank, N.A. and that the facts set forth in the foregoing Answer to "Motion to Request the Guardian of Estate PNC Bank to Produce a Cost Analysis of Homecare of Mildred J. Gerber in Her Home in New Cumberland and Care in Lombard, Dlinois and at Sunrise Assisted Living in Glen Ellyn, Dlinois including All Expenses" are true and correct to the best of his/her knowledge, information and belief. PNC BANK, N.A. By: /ItJ~ ~k Title: t!lu-P"'fldlAJ- It..7W.c/ (J{'{(CJvf." Date: 10 Ida/tJ}... I I 448980.1 TOTAL P.02 July 12, 2002 o PNCAuVlSORS Marilyn Jo Gerber 42 Drexel Place New Cumberland, P A 17070 RE: Guardians/tip of the Estate of Mildred Gerber Dear Marilyn: As you know, we met with you and your attorney, Stanley Laskowski, and our counsel, A. J. Mendelsohn on April 25, 2002. During that meeting we discussed issues you raised with respect to the guardianship of the estate of your mother Mildred 1. Gerber. We agreed that your counsel would send us a letter regarding the concerns you expressed at the meeting. Since that date, we have not received any letter from Mr. Laskowski. We did receive a letter from you dated May 28, 2002 setting forth various concerns regarding your mother's finances and personal care. We were pleased with the productive nature of our meeting on April 25, 2002. However, since that time you have failed to communicate with us in a structured and organized fashion through your counsel, Mr. Laskowski. While we certainly wish to cooperate with you, we will not tolerate the harassment we have endured from you thus far, particularly your multiple irate phone calls. Instead of improving the administration of your mother's estate, your contact with us has cost additional time and legal expenses because of your unwillingness to present information in a structured, organized and calm fashion. As guardian of the estate of Mildred Gerber, we are responsible for the management of your mother's assets for her best interests. We have no legal obligation to share information regarding your mother's finances with Mildred's family members. In fact, we believe that it is our legal responsibility to keep her financial information confidential. Nevertheless, in a desire to cooperate with all family members and to pursue your mother's best interests, the input of family members such as yourself is important. For that reason, we met with you on April 25 and have attempted to listen to your complaints regarding your brother's actions with respect to your mother's and father's trusts and his decisions regarding care for your mother. We acknowledge that you also desire to work for the best interests of your mother, and, therefore, we wish to receive your input on financial matters, in particular information relating to events prior to our appointment as guardian of the estate. In order to facilitate composed and constructive dialogue between you and PNC Bank, we will only review and respond to written communications from you from this point forward. The meetinf scheduled for AUflust 1.2002 is cancelled. A member of The PNC Financial Services Group 4242 Carlisle Pike Camp Hill Pennsylvania 17011 437139.1 Since our April 25 meeting we have made substantial progress. We petitioned the Orphans' Court Division of the Court of Common Pleas of Cumberland County to cite Fred Gerber to file an accounting for his administration of the Mildred J. Gerber Revocable Trust and his administration of the Fred Gerber Trust. In response to our Petitions, the Court issued Orders requiring Fred Gerber to file accountings on or before July 15,2002. As you know, these accountings were filed on the deadline of July 15. In addition to your request for an accounting, you raised other issues in our April 25 meeting and your May 28 letter. In response to those issues, please be advised of the following: 1) We have enclosed a check from the guardianship for $125 to reimburse you for your payment to Greg Smore of $50.00 for lawn care and $75.00 for snow removal and mail collection. We are no longer using him as we must have a maintenance person who carries liability insurance. Accordingly, we are using a commercial lawn service. With regard to any reimbursements in the future, we ask that you please refer to us anyone who may provide services on behalf of Mildred for prior approval of expenses. Only with pre-approval are we going to be able to handle these concerns. 2) You requested a check in the amount of $1 00 for Greg Smore and a check for $100 to Amanda Heflin as graduation gifts on behalf of your mother . We cannot honor this request because Pennsylvania law does not permit a guardian to make gifts without prior court approval. We do not think it is proper to incur the expenses of seeking court approval in order to make these gifts. 3) We are purchasing a new light timer to be sure that the house appears to be lived in, and we have made arrangements to have the flower beds cleaned up. We have a regular routine of inspections that we perform to be sure that the property is cared for and that the house is secure. 4) You asked to enter your mother's house to identify items belonging to you. We have enclosed an inventory of the personal property in the house. The personal property in the house is part of the guardianship estate. We ask that you kindly mark on the inventory the items you believe belong to you, and send us any proof of ownership of such items, which we will take into consideration. 5) You asked about the Betra and MERlT Bills. We monitor the bills carefully, and review whether each bill is reasonable. Although the charges for your mother's care are higher as a result of her residing in the Chicago area, the expenses have been reasonable. In response to your request, we will again review the Betra and MERlT bills to verify the charges and our payments to them. The choice of medical and nursing care for your mother is Fred Gerber's responsibility, as guardian of the person of your mother. We are responsible for making sure that her bills are paid properly. So long as we determine that costs for her care selected by her personal guardian are reasonable, we will pay such bills. 6) You asked about your mother's car. The vehicle is currently insured. However, since the car is in Illinois, we cannot maintain it or supervise its use to our satisfaction. Due to your mother's poor health, she no longer can drive the car. Therefore, we have asked Jane to purchase the car for its fair market value of $5,000. Jane has agreed to purchase the car, and we expect this to be concluded by July 31, 2002. 7) You noted that you believe your mother's professional caregivers are also providing housekeeping services to your sister, Jane Heflin. We are not aware that such services are being provided, nor have we been charged for or paid such expenses. Moreover, the personal health care of Mildred is the province of your brother as guardian of the person. Therefore, we are unable to comment on the qualitative health care issues you raise in your letter. In an effort to continue to work cooperatively with the Gerber family, we will begin sending quarterly statements for the guardianship and the Mildred Gerber Revocable Trust to you, Jane Heflin and Fred Gerber beginning with the month end of July 31, 2002. At our April 25 meeting, I gave you comprehensive statements from the inception of the guardianship to that time, and the trust from the commencement of our trusteeship to that time. You should be fully up-to-date when you receive the May 1 to July 31 statement. It should arrive in early August. Finally, as we discussed in one of our telephone conversations, we are currently in the process of analyzing the accountings. If you have any comments regarding the accountings, we ask that you send us a letter regarding your comments. Again, we do value your input regarding your mother's guardianship estate, and hope to cooperate with you in the future. Very truly yours, David A. Brown Vice-President cc: Amy J. Mendelsohn, Esquire V' Carole Yon, Senior Vice President VIA CERTIFIED MAIL. RETURN RECEPT CERTIFICATE OF SERVICE I hereby certify that on this :Jf(M day of QcJdb-et- , 2002, a true and correct copy of the foregoing Answer to "Motion to Request the Guardian of Estate PNC Bank to Produce a Cost Analysis of Homecare of Mildred J. Gerber in Her Home in New Cumberland and Care in Lombard, Illinois and at Sunrise Assisted Living in Glen Ellyn, Illinois including All Expenses" was served by means of United States certified mail, first class, postage prepaid, return receipt requested, upon the following: Richard C. Rupp, Esquire Rupp and Meikle Attorney for Fred E. Gerber, II 335 North 21 st Street, Suite 205 Camp Hill, PA 17011 Stanley J. Laskowski, Esquire Caldwell & Kearns Attorney for Marilyn Gerber 3631 N. Front Street Harrisburg, P A 17110 Ms. Marilyn Gerber 42 Drexel Place New Cumberland, P A Mrs. Jane Heflin 270 N. Garfield Street Lombard, IL 60148 4 m '--/11P&flc Kim Meals 448866.1