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HomeMy WebLinkAbout02-26-03 (2) IN RE: IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA APPOINTMENT OF A GUARDIAN OF THE PERSON OF MILDRED J. GERBER, an alleged incapacitated person, Movant : ORPHANS' COURT DIVISION . . : NO. 21-01-92 HEARING MEMORANDUM Petition filed by Marilyn Jo Gerber asking that Frederick E. Gerber, II, Guardian of the person of Mildred J. Gerber, be held in contempt of this Court because: a. Access visits were denied, cancelled or not responded to for certain dates, and b. Guardian procured ex-parte order from Illinois Court terminating access visits for an eight (8) week period. I. NO CONTEMPT BECAUSE PETITION IS FOR CIVIL CONTEMPT WHICH IS NOW MOOT 1. The contempt prayed for by Petitioner is civil and not criminal contempt because the dominant purpose of the proceeding is to enforce compliance with this Court's Order of March 25, 2002, for the benefit of Petitioner, a private party. John Rulli v. Daniel T. Dunn, et aI, 337 Pa. Super. 613; 487 A.2d 430 (J985) at page 43J. 2. The purpose of a civil contempt citation is a remedial one to coerce the alleged contemnor into compliance with the Order of Court. Supra at page 431. 3. Mildred J. Gerber died January 14, 2003. Therefore, proceedings to enforce compliance of this Court's Order of March 25, 2002 are moot. II. PETITIONER IS COLLATERALLY ESTOPPED FROM RAISING ISSUE OF CONTEMPT. 1. Petitioner filed this Court's Order in the Du Page County Court, an Illinois Court, and obtained a new Order modifying this Court's Order which was dated October 11, 2002 and was issued ex-parte against the Guardian. 2. The modification of this Court's Order was to allow Petitioner four (4) continuous hours of visitation each week without any restrictions, without any interference and without any supervision. 2 3. Based on the conduct and behavior of Petitioner after the ex-parte Order, both the Guardian and Sunrise obtained an iniunction from the Illinois Court preventing Petitioner from visiting Mildred J. Gerber for a period of eight (8) weeks. 4. Petitioner in the Memorandum to Support Motion to Vacate in the Illinois Court, filed on December 18, 2002, raised the same issues that she raised in her Petition to this Court filed on December 12, 2002. The Illinois Court denied Petitioner's Motion. The Petitioner then attempts to retry the same issues before this Court as were ruled upon by the Illinois Court. Petitioner is either collaterally estopped or, in the alternative, her issue is res iudicata. 5. Petitioner could have asked for contempt in her Petition to Vacate the iniunction but she did not. The Petitioner's claim for contempt is the caboose on her train. The same subiect mafter for the denial of access visits she raised in Chicago is the same subiect mafter Petitioner raises in the instant case for both re-starting of the access visits and the contempt request. Petitioner is also collaterally estopped with respect to the contempt issue. 3 6. The late and great Dean Walter Harrison Hitchler often remarked to his Dickinson Law Students II You can't get two bites out of the cherry". In the instant case, the Petitioner is attempting to get two bites out of the cherry - once in Chicago and once in Cumberland County. 7. The Guardian may not be held in contempt in attempting to prevent harm or upset to ward in complying with this Court's Order of March 25, 2002. THEREFORE, the Petitioner is collaterally estopped from raising the same issues in this Court. III. NO CONTEMPT IN PROTECTING PHYSICAL AND MENTAL WELL BEING OF WARD IN COMPLYING WITH COURT ORDER 1. Petitioner has a long history of aggravating and upsetting her mother, Mildred J. Gerber. 2. Petitioner was prosecuted by her mother for defiant trespass and convicted by a iury in this Court. 4 3. Guardian was advised by health aides whom he hired to prevent Petitioner from aggravating and upsetting her mother that she was belligerent and demanding with her mother and her mother was upset not only on the day of the visit but for the next day as well. 4. Guardian was advised by Sunrise personnel that Petitioner aggravated her mother and her mother became extremely upset at an unsupervised visit. 5. Guardian advised by Dr. Pauline Wiener, a Board Certified Geriatric Psychiatrist, that Petitioner upset her mother to the detriment of her physical and mental health. THEREFORE, Petitioner has not only iust grounds for these actions to protect his mother in complying with this Court's Order, but also had a duty to protect his mother in complying with this Court's Order and thus Petitioner cannot be held in contempt. 5 Date: :Z/S/6J , , ichard C. Rup , Esquir Supreme Ct ID No. 34832 355 North 21 sl Street, Suite 205 Camp Hill, PA 17011 717-761-3459 Attorney for Movant 6 ~. .,""