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HomeMy WebLinkAbout05-07-04 IN 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 PETITIONER, MARILYN JO GERBER,BENEFICIARY'S ANSWER TO PETITION FOR APPROVAL OF ADVANCE DISTRIBUTION OF TANGIBLE PERSONAL PROPERTY NOW COMES, Petitioner, Marilyn Jo Gerber, Pro Se and full beneficiary of the Estate and Trust of Mildred J. Gerber, and files the within Answer to Petition for Approval of Advance Distribution of Tangible Personal Property as filed by PNC Bank, Guardian of the Estate of Mildred J. Gerber, an incapacitated person, as follows: ~: I. Admitted. 2. Denied. PNC Bank has listed two different dates when this Court ad~dicated Mild red J Gerber to be an incapacitated person and appointed PNC Bank as sole Guardian of her Estate. These dates are March 22,2001 and March 23,2001. Petitioner requests that PNC Bank file a true and correct date of their appointment by this Court as Guardian of Estate. 3. Admitted. 4. Denied as Averred. On the contrary it is averred that Mildred J Gerber was taken to Illinois against her will. Petitioner further that Mildred J Gerber was in several nursing facilities prior to her death. 5. Denied. It is admitted that Mildred J Gerber died on January 14,2003. It is denied that Mildred J Gerber left only one Will that they claim is dated August 2,1999. 6. Denied as Averred. Petitioner denies that the proper and valid will of Mildred J Gerber was admitted to Probate. 7. Denied as Averred. The proper Will,and written instructions speak for themselves and proof of thereof is demanded at trial. 8. Denied. It is denied that all of the jewelry left by the decedent is contained in Exhibits A and B and or that the value of such jewelry was $15,970.00. Proof of thereof is demanded at the time of accounting. On the contrary, PNC Bank has failed and refused to provide line accounting in their First and Final Accounting for any of the Exhibits or their value. Marilyn Gerber has field Objections to the Accounting of PNC Bank and asked for Production of Documents to support the line accounting of the Tangible Personal Property of Mildred J Gerber. To this date they have refused to provide any receipts, debits, transactions or correspondence to any accounting of any assets of Mildred J Gerber. PNC has also filed Objections to Marilyn Gerber's Request for Production of Documents. Marilyn Gerber has recently filed a Petition to Order PNC Bank to Produce the Request for Production of Documents. 9. Denied. Proof is demanded of the contents and value of the items set forth in Exhibits A and B. 10. Denied. It is denied that Exhibit C represents all of the personal property of Mildred J Gerber and proof thereof is demanded at trial. On the contrary, a great many of the items listed in Exhibit are in fact the personal property of Petitioner, Marilyn Gerber. In reference to the automobile, Petitioner denies that this vehicle disposed of by PNC in that they allowed the vehicle to be taken out of state six months, sold without their appraisal, and which represented a substantial portion of the assets of Mildred J Gerber's estate at a time when PNC was Guardian of her Estate. 11. Denied as Averred. Petitioner avers that as a proper Guardian of Mildred J Gerber Guardianship Estate that they should have custody of all of her tangible personal property and not most of her property. Where is the rest of the property? 12. Denied proof demanded. This is the first time that Marilyn Gerber has seen this inventory as listed in Exhibit D. Nine (9) of these items listed in Exhibit D are in fact the personal property of Marilyn Gerber taken from her bedroom in the residence and other rooms in the residence. PNC does not list the value of these missing items, what action they have taken against these missing items; whether they filed an insurance claim or a report of stolen property; and most importantly how did these items go missing from the estate of Mildred J Gerber when no one had access to them in July 2002 and August 2002. Petitioner, Marilyn Gerber avers that this is an example of PNC's lack of protection of personal property and Marilyn Gerber believes that there is a substantial amount of other missing property that is missing. PNC again has failed to inventory each item that was removed and placed in storage on October 1,2002 as they would be mandated to do for insurance purposes while the property was at Harrisburg Storage. If there was a fire, how would PNC account for the loss of property, much less account for what property was there? Marilyn Gerber contests that this memo was not given to the beneficiaries of the estate o~ Mildred J Gerber upon her death and now 15 months later reveal this memo. PNC did not reveal these missing items as losses in the line accounting submitted to the Court on October 24,2003. 13. Denied that personal property listed on the memo in Exhibit D was discarded or donated to Goodwill Industries by Mildred J Gerber or Frederick E. Gerber, Il. Frederick E.Gerber, II as Guardian of Person on December 23,2001 and no one had authority to discard any personal property of Mildred J Gerber. Furthermore, Mildred J Gerber was declared incapacitated and suffering from Alzheimer disease. It is further averred that nine of the items listed in Exhibit D are the personal property of Petitioner herein. 14. Denied. PNC Bank fails to specifically identify which items were removed from their legal possession and the value thereof said items. Proof thereof is demanded. 15. Denied. Proof demanded of each item and its value as PNC Bank was in legal possession of these items. 16. Denied. The Tangible Personal Property was placed in storage without any Petition being filed with this Court for the sale of the residence in October 1, 2002. In fact, in December 2002, PNC lied before Judge Hoffer and stated that there was a buyer for this residence when in fact there was no buyer. Marilyn Gerber had stated many times that this property had been awarded to her by her father in January 1998 before all of her siblings and her mother. Marilyn Gerber had also stated that she would buy this property. Marilyn Gerber stated in this Court on December 16,2002 that she would buy this residence. If PNC had admitted the truth that there was no buyer on December 16,2002, Marilyn Gerber could have purchased this residence. There was no reason to store the entire contents of this residence. The costs were over $4,000 and now each and every item will have to be uncrated at Harrisburg Storage, itemized, photographed and then hashed over in this Court as to the owner of this property. This property should have and could have been itemized, identified and certified with independent witnesses in the home at 623 Hilltop Drive, New Cumberland and prevented the now burdensome costs that the beneficiaries are facing. PNC did not itemize what items were placed in storage from Mildred J Gerber's residence nor their value. Marilyn Gerber demands a complete list of every item and its value. 17. Admitted in part. Marilyn Gerber has claimed that a great majority of the property in storage belongs to her. It is denied that Marilyn Gerber has failed to establish her ownership of any items. Marilyn Gerber has on numerous occasions requested that she be allowed to identify her property while it was in the residence of Mildred J Gerber. Mildred J Gerber informed PNC Bank in 2001 that Marilyn Gerber had personal property in the residence. Frederick E. Gerber, II and Jane N Heflin were also aware of personal property of Marilyn Gerber. There was and still is no valid reason why PNC would not allow Marilyn Gerber to enter the residence and identify and photograph what she claimed was her property. Marilyn Gerber was the eldest child, she had provided the majority of caregiving for her parents, and was a full beneficiary of the estate and Trust of Mildred J Gerber and the Fred E. Gerber,Sr. Trust. PNC had a responsibility to the beneficiaries to protect the assets of Mildred J Gerber as well as not take any property that was not under their Guardianship and be fair to all of the beneficiaries. In December 2002, David Brown admitted to having acrimony for Marilyn Gerber and also threatened to sue Marilyn Gerber if she made public their mismanagement of the estate of Mildred J Gerber. PNC has spent considerable legal fees opposing Marilyn Gerber's right as a beneficiary and owner of personal property at the residence of Mildred J Gerber. 18. Admitted. 19. Denied as Averred. Proof demanded. 20. Denied. Proof demanded. On the contrary, it is important that the Guardianship Account be approved in Orphans' Court and particularly in the upcoming audit of Mr. William Duncan who was appointed by the Court as auditor for this purpose. Furthermore, the Executor's administration of the Estate is likewise under audit by Mr. Duncan as well as the Trust of Mildred J Gerber. This is a veiled attempt by PNC Bank to make this Court believe that any part of the Estate could be administrated at this time much less is a serious attempt to conspire to hide their fiduciary responsibility and ultimate surcharge. 21. Denied. Marilyn Gerber nor any other sibling has filed any Petitions stating that they want the Tangible Personal Property to be distributed to them. The children of Mildred J Gerber are the only beneficiaries of the Tangible Personal Property. The financial accounting of the Tangible Personal Property was objected to by Marilyn Gerber and also in this Answer and is currently under audit by this Court. The monthly charge of the Tangible Personal Property is approximately $340.00 a month. This represents a small fee for the entire contents of a 5 bedroom residence. It is particularly interesting that after needlessly storing this property for 19 months, that PNC would only ask now about the storage fees. While the storage fee for these 19 months has come to approximately $6.500.00, PNC did not consider these costs when they spent $4,000 needlessly crating and moving the entire residence into storage, incurring $6.500 of storage fees, not to speak of the legal expenses surrounding these events which are estimated at over $10,000. Keeping the property in the residence would have cost nothing and it would have been covered under Homeowners Insurance. PNC actions are surchargable. Due to PNC's needless storage of this property, the beneficiaries are now faced with uncrating, itemizing, witnesses to view each item, photography of each item, and restoring these items. This process will take several weeks to complete not to speak of lost time for the beneficiaries who will demand to be present. PNC has spent over $20,000 on the storing the personal property of Mildred J Gerber when they could have done in 2001 or 2002 and after the death of Mildred J. Gerber in 2003. PNC could have also assisted the beneficiaries to determine what they wanted from the estate of Mildred J Gerber thus preventing any audit, the enormous legal fees PNC has billed the estate of Mildred J Gerber not to speak of the emotional distress they have caused. PNC as Guardian of Estate is charged with creating income. To date PNC has billed the estate of Mildred J Gerber over $80,000 in legal fees not to speak of their Guardianship fees, and PNC has lost moneys in placing the estate in investments that have incurred losses. These actions are surchargable. 22. Admitted. However, this is an attempt by PNC Bank to burden Marilyn Gerber as she is facing two separate audits, all of the costs of depositions, and discovery and the hearings. This is an attempt to place an unfair burden on Marilyn Gerber. PNC Bank is also aware of the hatred Frederick 15. Gerber, II has for Marilyn Gerber and Marilyn Gerber risks loosing all of her personal property if Frederick E. Gerber, II gets possession of the Tangible Personal Property of Mildred J Gerber prior to the audits being completed for all the Accountings that have been objected to in the PNC Accounting and Frederick E. Gerber, II Accounting. On each issue before this Court, Frederick E. Gerber, II has taken a punitive action against Marilyn Gerber especially if she won any actions against him in Court. Frederick E. Gerber, II was found guilty of Contempt of Court in May 22,2003 and Marilyn Gerber was awarded $5,000 which to this day, he has refused to pay. Frederick E. Gerber, II has physically, emotionally and financially abused Marilyn Gerber as well as refused to provide any accounting to her for over six years on the Trust of Fred E Gerber,Sr. and the Trust of Mildred J Gerber and Estate of Fred E. Gerber. Frederick E. Gerber, II has refused to disburse any funds from the Fred E. Gerber,Sr. Trust as she is a full beneficiary while enriching his children, Jane N Heflin and her children. 23. Denied. On the contrary, by this Petition, PNC Bank is seeking to be relieved of its responsibilities for which it has billed the Estate and no change in the status should be effectuated until the proper audit is held before the Court appointed auditor. WHEREFORE, Petitioner, Marilyn J Gerber respectfully requests dismiss the Petition of PNC Bank to Approve of the Advance Distribution of the Tangible Personal Property pending completion of the audits as scheduled by the Court appointed auditor. NEW MATTER 24. In December 2003, Mr. William Duncan, Esquire was appointed by Judge Oler of this Court to conduct an audit of the First and Final Accounting by PNC Bank of the Estate of Mildred J Gerber. Hearings are scheduled for August 16, and August 17, 2004. 25. Petitioner has scheduled depositions of PNC Bank on May 20,2004. Despite Petitioner's request for documents of all substantiating data for their First and Final Accounting, PNC Bank has refused to furnish same and filed Objections to this proper request for documents. 26. PNC Bank not only owes a fiduciary duty to the Estate that it represents but also owes a duty to act fairly and impartially to all the beneficiaries of that Estate without acrimony, or threats. Their conduct to the Petitioner has exceeded the normal bounds of acceptable and standard behavior in these financial proceedings and has caused great financial hardship to Petitioner. 27. Petitioner avers that the audit before Mr. Duncan should proceed unimpeded to a determination of the validity of PNC First and Final Accounting prior to any distributions of the Tangible Property made Advance of same. WHEREFORE, Petitioner, Marilyn J Gerber requests that the present Petition filed by PNC Bank be dismissed and that this matter proceed to an audit that has been scheduled by William Duncan, Esquire and after the satisfactory completion of that audit, then the Court can set it own terms with reference to a distribution of the assets of the Estate of Mildred J Gerber. May 6,2004 Ms. Joanne Christine Rhoads & Sinon One South Market Square Harrisburg, PA 17108 Dear Ms. Christine: Enclosed please find one copy of the Answer to the Petition for Approval of Advance Distribution of Tangible Personal Property. I was under the understanding that you had agreed to inform me by Fax that your office was sending me any correspondence or documents. I did not receive any fax indicating you had sent me the above Petition. I want to point out that you did not fill in or sign the Certificate of Service for the Petition for Approval of Advance Distribution of Tangible Personal Property. Your office has no proof of service of when you went this document. If you are using a return receipt of Certified Mail, I hope that it indicates what document was sent Certified. Please send me a copy for my records and the Court's. Should you have any questions please feel free to contact me. My telephone number is 717 503-5280. Sincerely, VERIFICATION Marilyn Jo Gerber, Pro Se and beneficiary of the Estate of Mildred J Gerber deposes and says, subject to the penalties of 18 Pa C.S. 4904 relating to unsworn falsification to authorities, and that the facts set forth in the foregoing "Petitioner, Marilyn Jo Gerber, Beneficiary Answer to Petition for Approval of Advance Distribution of Tangible Personal Property" are true and correct to the best of her knowledge, information and belief. Marily~ Jo Ge~er~r0 Se, Beneficiary CERTIFICATE OF SERVICE I hereby certify that on the ~%ay of .~~"'" ,2004, a true and correct copy of the "Answer to Petition for Approval of Advance Distribution of Tangible Property" was served by means of United States mail, postage paid, upon the following: Ms Joanne Christine, Esquire Rhoads & Sinon One South Market Square Harrisburg, PA 17108 Richard C. Rupp, Esquire Rupp & Meikle 355 North 21 st Street, Suite 205 Camp Hill, PA 17011 Jane N Heflin 270 N. Garfield Street Lombard, IL 60148