HomeMy WebLinkAbout08-02-05
FOR MARILYN J. GERBER
Marilyn J. Gerber
FOR PNC
David Brown
INDEX TO WITNESSES
EXAMINATION
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CROSS-EXAMINATION
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DIRECT CROSS REDIRECT RECROSS
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1 THE COURT: This is the time and place for a
2 hearing on a Motion To Quash Subpoenas and/or for Protective
3 Order filed by PNC Bank, National Association. We will let the
4 record indicate that Marilyn J. Gerber is present in court
5 representing herself. I will ask counsel to introduce
6 themselves and indicate what party they are representing.
7 MS. BOOK: Your Honor, Joanne Book from Rhoads &
8 Sinon on behalf of PNC Bank, N.A.
9 THE COURT: All right.
10 MS. VERNEY: Your Honor,Jacqueline M. Verney, I am
11 an objector in both of the trusts on behalf of Mildred Gerber.
12 THE COURT: Ms. Verney, do you have a position with
13 respect to this motion?
14 MS. VERNEY: I am in favor of the motion to quash
15 and the protective order.
16 THE COURT: Do you have anything that you want to
17 present today?
18 MS. VERNEY: I have nothing to present, Your Honor.
19 MR. RUPP: Your Honor, Richard C. Rupp representing
20 Frederick Gerber, who was the accountant and trustee of both
21 trusts. The position of the trustee is that the subpoena was
22 not served in accordance with the Pennsylvania Rules of
23 Criminal Procedure and we support the motion to quash, Your
24 Honor.
25 THE COURT: Did you have anything you wanted to
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1 present today?
2 MR. RUPP: Only that statement, Your Honor.
3 THE COURT: Mr. Rupp and Ms. Verney, you are
4 welcome to stay if you like, you don't have to, it is your
5 choice.
6 MS. VERNEY: Your Honor, I think I will excuse
7 myself.
8 THE COURT: All right. We will indicate that Ms.
9 Verney is leaving and Mr. Rupp is staying.
10 Ms. Gerber, the allegations are that there are some
11 very serious procedural defects in your subpoenas. Did you
12 have a response to those suggestions?
13 MS. GERBER: Yes, I do, Your Honor, this has been
14 an ongoing case in a court, and this matter of PNC Bank
15 overlaps into the accounting and the subsequent audit hearing
16 scheduled in September of this year.
17 You mayor may not be aware that there was a
18 hearing In September of last year for the accounting of the
19 Mildred J. Gerber Trust and the Mildred J. Gerber Estate,
20 however, it is for a small period of time.
21 During that time subpoenas were served in the exact
22 same manner of which I had served them this way and PNC had
23 said that they would accept the subpoenas via fax. I might add
24 that Charles Schwab's, also attorney as general counsel in San
25 Francisco, California, also indicated they would receive
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1 subpoenas by fax.
2 It also might be noted that William A. Duncan, the
3 court-appointed auditor since November of 2002, ordered that
4 David Brown would be deposed and that it would be acceptable to
5 serve subpoenas per his order and agreement during a status
6 conference hearing in 2004 for PNC Bank to submit documents
7 related to the time period of 1998 to the present 2005. That
8 also included an order from William Duncan, the auditor, that
9 David Brown would be deposed only the issues related to the
10 accounting of the Mildred J. Gerber Trust and the Fred E.
11 Gerber, Sr., Trust.
12 THE COURT: What are the subpoenas that are at
13 issue today requesting?
14 MS. GERBER: The subpoenas that I have issued
15 requested the complete documentation that PNC Bank has from any
16 time period in relationship to any correspondence, meetings,
17 agreements or contact with the accountant who was also the
18 trustee of the Fred E. Gerber, Sr., Trust and the Mildred J.
19 Gerber Trust, it must be noted that
20 THE COURT: Wait, complete documentation as to
21 what?
22 MS. GERBER: Correspondence, banking, checks,
23 statements, and accountings which relate to the garnering and
24 marshalling of assets of the two above stated trusts that we
25 are speaking about today.
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1 THE COURT: So you want basically everything in the
2 files that PNC has --
3 MS. GERBER: It includes the trust, Your Honor, as
4 well as the checking accounts of the two above stated trusts.
5 I believe that PNC Bank will argue that they gave
6 me 4,000 pages of documents during the hearing, however, that
7 was for a specific time period that was related to March 21 of
8 2001 to only October 23 I believe of 2003. This does not
9 represent documentation that I know existed prior to March 21,
10 2001, because in the documents, the 4,000 documents that were
11 given to me, I found documents that predated and postdated the
12 period of time that was prescribed by this audit that was heard
13 in September of 2004.
14 Therefore, I feel it is my rightful position in
15 discovery to be allowed to see the originals, as well as to
16 request all documents, correspondence, banking, checking, front
17 and back of checks, e-mail, letters of anything that had to do
18 with these above stated trusts.
19 THE COURT: Are you willing to pay for all this?
20 MS. GERBER: They have stated what their request
21 was, which far and above supercedes what they charged me. They
22 charged me I think $484 for 4,000 pages of documents; to
23 request $1200 for what would they be coming up with, 8,000
24 pages of documents I find is unreasonable, and they have not
25 stated the volume and the page amount and why it was they are
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1 charging. I believe they are doing this as an attempt to
2 create financial hardship. And since I am a beneficiary, I
3 think, and they did not
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9 burdensome and an attempt to create more financial blocks for
10 me as a pro see They have nothing financially at stake as
11 being a bank.
12 THE COURT: Well, they may be a bank, but they
13 still have costs that they have to pay people for doing these
14 things.
15 MS. GERBER: These things can be taken from the
16 trust. All expenses from the Mildred J. Gerber Trust and Fred
17 E. Gerber Trust have been taken from both trusts for all of the
18 counsel, and they have excluded, despite my demands from PNC to
19 pay my costs as well, they have excluded me, so everybody else
20 gets paid
21 THE COURT: All right. So as I understand it, your
22 defense at least to this motion to quash as it relates to
23 procedural grounds is that you feel you were told that you
24 could serve subpoenas in this matter?
25 MS. GERBER: That is correct. There is one other
THE COURT: Is your answer, no, I am not --
MS. GERBER: My answer lS no.
THE COURT: You are not willing to pay for it?
MS. GERBER: Oh, I am asking the Court not to
accept their proposal of $1200, I find it excessive and
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1 added item, an argument, is that currently to this day PNC is
2 the official and legal fiduciary trustee for the Mildred J.
3 Gerber Trust. They have not been removed. They continue to
4 charge $5,000 a year, as well as monthly fees, expenses and
5 management and investment fees.
6 Jacqueline Verney is not the trustee of the Mildred
7 J. Gerber Trust, therefore, since PNC did file the objections
8 the citations and the Court ordered the accounting and they
9 subsequently filed objections, they are still per my multiple
10 submission of motions to this Court, they are still fiducially
11 and legally responsible to argue these objections, therefore,
12 they are a party and they have to submit documents as a party
13 to these objections.
14 THE COURT: You are saying PNC filed objections to
15 something?
16 MS. GERBER: PNC Bank is stating that they are not
17 a party and they are not legally responsible to argue these
18 objections, they still remain the legal trustee of the Mildred
19 J. Gerber Trust; Jacqueline Verney only represents allegedly
20 Mildred J. Gerber, therefore, since PNC Bank were the
21 originators of what we are going to hear in September for
22 accounting of the two above stated trusts, they are still
23 THE COURT: You said they filed objections. I am
24 trying to understand what you are taking about
25 MS. GERBER: They filed objections to the
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1 accounting.
2 THE COURT: PNC filed objections?
3 MS. GERBER: They filed objections to the Fred E.
4 Gerber Trust and to the Mildred J. Gerber Trust along with me
5 in August of 2002, therefore, they still are legally the
6 trustee, are charging and billing for it, and are not supplying
7 or arguing these objections.
8 THE COURT: All right. Let me hear from Ms. Book
9 now. Ms. Book, Ms. Gerber says that she has been told that she
10 can serve subpoenas in a manner not consistent with the rules
11 of civil procedure.
12 MS. BOOK: That is not the case to my knowledge,
13 Your Honor. At no time did we indicate that she could use any
14 alternate means of service.
15 As noted in the motion I received initially via fax
16 and then several weeks later via regular mail, and at no time
17 was PNC directly served or any office of PNC, at no time were
18 they served by processor or by certified mail or any other
19 manner, and I did not authorize service in the manner that it
20 was completed.
21 Just to clarify a bit, Your Honor, as recited In
22 the first paragraph of my motion, PNC was substituted by
23 Jacqueline Verney as to all objections filed to Fred Gerber's
24 accounts, so PNC is no longer a party to any matter with regard
25 to Fred Gerber's account as trustee of the Mildred Gerber Trust
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1 or the Fred Gerber, Sr., Trust. So while we were involved in a
2 prior matter, we are not a party to this matter and, in fact,
3 really have not been served with any documentation. I was not
4 actually aware that the hearing was supposed to take place in
5 September.
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12 out in the motion, the improper service, in addition the
13 documents that Ms. Gerber referred to, the 4,000 pages of
14 documents which she does admit receiving, those documents were
15 everything within PNC's possession from March of 2001 through
16 May of 2004 relating to her mother's trust as well as her
17 mother's guardianship, all non-privileged documents were turned
18 over to her as part of that 4,000 worth of documents.
19 She did not pay for those despite our attempts to
20 have her pay for the copying cost which were approximately
21 $500. The reason they were $500 is we actually had those
22 documents in our possession in hard copies, so we were able to
23 send them to an external copy service and have them copied and
24 it was about $500. That was paid from the trust.
25 The additional documents that she is now seeking
THE COURT: Is that an auditor's hearing?
MS. BOOK: Yes, an auditor's hearing before William
Duncan.
THE COURT: I see.
MS. BOOK: Our position with regard to the motion
to quash is initially the procedural matters that are brought
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1 relate to matters prior to March of 2001, she is seeking from
2 1997 forward.
3 PNC did not administer any accounts that was in the
4 name of either her mother's trust or her father's trust with
5 her brother serving as trustee. So we have already provided
6 her with everything with us serving a fiduciary role. We
7 administered no accounts that related to her brother serving in
8 the role as trustee. So she is basically seeking copies of
9 account statements from her mother and father and brother's
10 trust either jointly or individually.
11 The reason the costs are $1200 1S that these
12 documents are all from 1997 to about 2002, they are no longer
13 maintained in hard copies, they are stored on microfiche and
14 PNC's cost to access these documents if deemed relevant by the
15 Court would be .50 a page and $11 an hour for the records
16 custodian to access those documents and provide them to her.
17 So our position is, first, they are not relevant to
18 this matter because they relate to individual accounts
19 maintained by her parents. They are not reasonably directed to
20 lead to relevant evidence because, again, they have nothing to
21 do with the trusts administered by her brother, they were
22 individual accounts.
23 If the Court does deem them relevant, we would like
24 our reasonable costs of accessing those documents and that is
25 why the cost is what it is.
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1 We did have the records custodian research this
2 matter and that is cost provided by the records custodian for
3 PNC.
4 THE COURT: How many pages are there?
5 MS. BOOK: If Your Honor will give me one moment.
6 Based on what she gave me, I think it is in excess of 2,000
7 pages but she did not -- she was not able to make a correct
8 estimate because of the fact that they are on microfiche, so it
9 may well be more than that and she was not going to make the
10 copies without the disposition of this matter. So I would say
11 in excess of 2,000 pages.
12 THE COURT: All right. Ms. Gerber, first, beyond
13 the procedural issues, which I will have to take testimony on
14 as to whether you were told by somebody at the bank that they
15 would receive subpoenas out of the ordinary course of the Rules
16 of Civil Procedure, Ms. Book argues, number one, that these
17 documents are not relevant to the case. What is your response
18 to that?
19 MS. GERBER: My response to that is that Fredrick
20 E. Gerber, the current trustee of the Fred E. Gerber, Sr.,
21 Trust and Mildred J. Gerber Trust, commingled the assets and
22 the monies in checking accounts, in his own personal account.
23 He has taken monies from the restricted Mildred J. Gerber
24 Trust. There is no beginning and end to knowing the following.
25 There was a court order to provide all accounting for the
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Mildred J. Gerber Trust and the Fred E. Gerber, Sr., Trust.
This is a simple matter that would require that all
the banks and all the investment companies to provide beginning
assets, current gains and losses, interest transferring gains
and losses, as well as the management and administration fees
and the current assets. Up to now, Your Honor, this is what is
required and requested by any fiduciary or anybody who
challenges or questions the management of the trustee.
They state that it is irrelevant and I state it is
not because there has been to this day nobody, including the
Court and the auditor, have a clue what the beginning assets,
the current, as well as the history in between. But
unfortunately, approximately 60 attorneys, including
paralegals, have been involved in quashing the discovery of a
simple request of a beneficiary, a full beneficiary and a child
of these two trusts and the two parents to know what were the
beginning assets and what is the current assets and the
management in between.
THE COURT: When did the first trust begin?
MS. GERBER: The first trust, the Mildred J. Gerber
Trust, was dated under agreement December 19, 1997; and the
Fred E. Gerber Trust was dated July 29, 1994. We have to
evidence of what the assets were and where they came from. We
know --
THE COURT:
December of what year?
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1 MS. GERBER: December 19, 1997 for Mildred, and
2 July 29, 1994 for Fred E. Gerber, Sr.
3 THE COURT: Tell me again what documents you are
4 requesting in these subpoenas that we are dealing with today?
5 MS. GERBER: I am requesting all the checking
6 accounts of Mildred J. Gerber and Fred E. Gerber, Sr., and any
7 co-joint accounts and any trusts or any credit cards or any
8 assets that were held by both of them during that time period
9 in order to fully discover what are the bulk of the assets.
10 THE COURT: From 1994 on you want all --
11 MS. GERBER: Your Honor, we are not going from 1994
12 at this point where we are in the court now, unless further
13 motions or petitions are made by myself or any other
14 beneficiary, we are going from the date of my father's death,
15 which is February 22, 1998, and forward.
16 MS. BOOK: Your Honor, if I could just interrupt.
17 I believe you had asked for 1997 forward.
18 MS. GERBER: I asked for 1997 because we --
19 THE COURT: What date in 1997 forward did you ask
20 for?
21 MS. GERBER: I don't believe I specified a date,
22 but I would be happy to take the year because it will
23 substantiate the mixing or the separation or transfer of assets
24 because the trust was done on December 19, 1997, I was living
25 with my parents at the time. There was a separation of funds
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1 and because Charles Schwab has filed motions to quash and PNC
2 consistently refuses to provide this financial information, we
3 are not sure where the origin of the monies were, whether they
4 came from individual accounts, trust accounts, outside monies
5 from the state or even the country. I might add --
6 THE COURT: Wait. One trust was started in 1994.
7 MR. GERBER: The Fred E. Gerber Trust was signed
8 and written on July 29, 1994. I would like to know, and I am
9 happy to file a petition to know what the original asset value
10 was, because, again, nobody knows the source or the origins of
11 any of the monies that funded these two trusts.
12 THE COURT: You are saying some money was added to
13 the trust after 1994?
14 MS. GERBER: I believe so, and in the mean time I
15 have found monies outside of the declaration by the accountant
16 that has never been declared, and I believe per my
17 investigation there is other money to be discovered.
18 THE COURT: But you have received all of the
19 information about the two trusts themselves?
20 MS. GERBER: No, I only received from PNC Bank's,
21 Your Honor, in terms of the 4,000 pages regarding the Mildred
22 J. Gerber estate when they were appointed guardian of the
23 estate at March 21 of 2001. That was for estate.
24 They only provided documents on the Mildred J.
25 Gerber Trust from March 21, 2001, to October 23, 2002. They
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1 provided no documentation, no financial information, nothing on
2 the Fred E. Gerber Sr., because that hearing held in September,
3 Your Honor, was my objections to their accounting of that brief
4 period of time.
5 PNC Bank knew that I would be coming back, as well
6 as the auditor and this Court to order a hearing on the
7 combined Mildred J. Gerber Trust and the Fred E. Gerber, Sr.,
8 Trust because this Court ordered those citations and ordered
9 and accepted our both filed objections.
10 So PNC -- this is not new news to PNC. The problem
11 is that they have engaged four internal attorneys of Rhoades &
12 Sinon, including --
13 THE COURT: I am not at all interested in how many
14 attornies have been engaged, that does not help me at all
15 MS. GERBER: It is relevant, Your Honor, because
16 THE COURT: It is important to you but it is not
17 important to me.
18 MS. GERBER: It is wasting the trust currently.
19 There is a massive wasting of the trust. Currently, Your
20 Honor, the approximate 1.2 million dollars of what we do know
21 is being dissipated and very shortly will be completely
22 dissipated by the legal fees of the attornies and the banks.
23 THE COURT: Okay, Ms. Book, do you have a response
24 to that response?
25 MS. BOOK: Your Honor, just to clarify, and I
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1 apologize for the confusion. The subpoena it appears that
2 Marilyn was asking for documents from 1998 to the present.
3 THE COURT: All right.
4 MS. BOOK: Specifically. So, again, it is PNC's
5 position that we have already produced all documents on the
6 trust side of the bank which was administering the Mildred J.
7 Gerber Trust after it took over from Colonel Gerber, Marilyn's
8 brother, we already.produced all those documents and we have
9 already produced all documents relating to the guardianship.
10 The accounts that were at PNC were solely in the
11 name of Mildred Gerber or Fred E. Gerber, Sr., or else Fred E.
12 Gerber, II, Colonel Gerber, and are not relevant to the trust.
13 So if Your Honor deems them to be relevant, again, we are
14 seeking the costs of producing those documents.
15 THE COURT: Okay. Ms. Gerber, do you want to take
16 the witness stand and say who assured you that you could serve
17 these particular subpoenas outside the Rules of Civil
18 Procedure?
19 MS. GERBER: Yes.
20 THE COURT: All right.
21
22 MARILYN J. GERBER,
23 having been duly sworn, testified as follows:
24 EXAMINATION
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BY THE COURT:
Q
A
Q
A
Q
A
Q
A
17043.
Q
A
Would you state your full name, please.
My name is Marilyn Gerber.
Where do you live?
I live at 42 Drexel Place, New Cumberland, PA.
We have a Lemoyne address for you
That is my mailing address, sir.
Where do you want to receive papers in this case?
At the 717 Market Street, No. 317, Lemoyne, PA
Whose address is that?
That is my P.O. Box, Your Honor, I am a single
woman, and in order for me to get my mail and be able to
retrieve my mail and have security, that is how I have a P.O.
Box. It is more than a P.O. Box, you can send things that they
will be signed, and then received, and my mail is then managed
for me.
Q Is it some kind of service that receives your mail?
A Yes, sir.
Q You say that you were told by a bank official that
the bank would accept subpoenas by some process other than --
A No
Q by some process other than the Rules of Civil
Procedure
A No, Your Honor, I was instructed by William A.
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Duncan, Esquire, the court-appointed auditor in a status
conference meeting that I was granted per his agreement to
subpoena and collect my production for request of documents
from PNC Bank on this matter.
The way that Auditor Duncan decided what would be
subpoenaed and who would be deposed was done ln status
conference. Each counsel presented who they want to depose and
who they wanted to subpoena and he would agree, that was done
in 2004.
Upon his agreement and decision then I would pay
for a subpoena from this Court from the Orphan's Court and then
I would therefore serve it. The counsel for PNC Bank, Rhoades
& Sinon, were present at these status conference hearings and
everybody was aware and stipulations were also signed.
PNC Bank filed collectively joint motions to quash
for themselves and Charles Schwab, who only has general counsel
in San Francisco --
Q Please don't get into things like that. Just tell
me what agreement you had
A Therefore
Q May I finish the sentence. Please tell me what
agreement you had with PNC Bank that said that you could serve
subpoenas outside the Rules of Civil Procedure?
A I can't answer the question the way you ask it,
sir. I can only answer to tell you that since the -- all the
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other counsels received subpoenas, as did Mr. Rupp for Fred E.
Gerber, the firm of Rhaodes & Sinon was counsel for PNC Bank
and they have consistently received subpoenas in the past and
never objected. So my continuation of serving subpoenas by
mail and/or fax as I did when they were jointly presented
motions for Charles Schwab and themselves to quash were no
different than I had done all along and Mr. Duncan, the
auditor, was aware of my method. They are also the trustee for
the Mildred J. Gerber Trust.
THE COURT: Ms. Book, do you have any questions on
this point?
CROSS-EXAMINATION
BY MS. BOOK:
Q Ms. Gerber, did I ever indicate to you that you
could serve subpoenas upon PNC by faxing or mailing them to me?
A It was never discussed. As this was done in the
past and also with all the other counsel and never objected to,
nor did Mr. Duncan stipulate that it be done any differently, I
proceeded as to the usual customary manner that we have been
doing it all along over the last four and a half years.
MS. BOOK:
THE COURT:
Thank you, Ms. Gerber.
I haven't looked at this order or
whatever it is of Mr. Duncan's. Did he say that you could
serve subpoenas outside the rules?
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A It wasn't a question of saying outside the rules.
He knew how I served subpoenas, he received copies of my
subpoenas, and he instructed the Orphans Clerk to issue
subpoenas to me when I was granted permission by him to
purchase them in the Orphans' Court. So they sealed them, I
signed them, and they were served.
THE COURT: Well, they weren't served according to
the rules though.
They were served by mail to the counsel of PNC Bank
who acts as a trustee of the Mildred J. Gerber Trust,
therefore, they are a party to the issue, and they are the
objectors, and are not outside foreign hostile non-parties in
this case.
THE COURT: Anything further, Ms. Book?
MS. BOOK: Your Honor, nothing for Ms. Gerber.
THE COURT: Okay, you may step down, thank you.
Was there anything else anybody wanted to present
In the way of evidence with regard to this?
MS. GERBER: I would, Your Honor, yes.
THE COURT: All right.
MS. GERBER: I wanted to state that even though
there may be procedural issues that have been raised for the
first time in approximately --
THE COURT: What I asked was whether you had any
further evidence to present. It sounds as if you are going to
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1 make an argument, which is fine, but I am just asking for
2 evidence at this point.
3 MS. GERBER: On the issue of requesting my
4 documents.
5 THE COURT: On the lssue that is before the Court,
6 which is whether the Motion To Quash the Subpoenas and/or For
7 Protective Order should be granted.
8 MS. GERBER: The only other evidence I have, Your
9 Honor, is that -- unless what I testified is adequate for you.
10 THE COURT: I am not going to tell you how to
11 present your case.
12 MS. GERBER: The only other evidence I have to
13 submit to this Court, Your Honor, is that Mr. Duncan, the
14 auditor, in agreement with stipulations, and all the parties
15 present agreed that David Brown would be deposed and that a
16 request for production of documents would be issued to them,
17 and this is not new news as to these two trusts.
18 The other evidence is that because PNC Bank filed
19 the citation for Fred E. Gerber in the 4,000 pages of the
20 documents they provided me for their hearing, I never received
21 anything on the Fred E. Gerber, Sr., Trust, only on that
22 related to Mildred J. Gerber Trust and Estate, therefore, if
23 any correspondence, e-mails and documents exist regarding Fred
24 E. Gerber, Sr., Trust and also the Mildred J. Gerber Trust
25 outside to the parameters of the timeframe of their last
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1 hearing, which I do believe and know exist, then this is an
2 attempt by PNC Bank to thwart discovery based on continued
3 allegations and continued legalities that they have conspired
4 to defraud my rightful inheritance, I believe that PNC Bank is
5 taking a hostile position --
6 THE COURT: You are making an argument, you are not
7 presenting evidence, you are arguing.
8 MS. GERBER: Your Honor, I am not an attorney, I am
9 pro see
10 THE COURT: That makes no difference when it comes
11 to obeying the rules.
12 MS. GERBER: I am happy to obey your rules, sir. I
13 can only speak in layman's tongue and ask the Court --
14 THE COURT: I am trying to tell you in simple
15 language that you are making an argument, you are not
16 presenting evidence. My question was do you have any further
17 evidence that you want to present. If you do, done through a
18 witness, yourself or somebody else, it would be under oath.
19 MS. GERBER: I will be happy to witness Mr.
20 Duncan's statement and request for these documents in
21 deposition.
22 THE COURT: That is up to you if that is the way
23 you want to present the case.
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MARILYN J. GERBER,
having been previously sworn, recalled as a witness,
testified as follows:
EXAMINATION
BY THE COURT:
Q You are now under oath.
A Yes.
Q Go ahead.
A I would like to testify that under several status
conference hearings which involved PNC Bank with Ms. Joanne
Christine Book present and Richard Rupp and Jacqueline Verney,
there was a discussion of who would be the witnesses subpoenaed
for production of documents and who would be deposed.
I presented, since nobody else wanted to do
discovery, I was the only one as an objector who requested to
depose David Brown for the issues only relating to the upcoming
hearing, and that would be the Mildred J. Gerber Trust and the
Fred E. Gerber, Sr., Trust.
Mr. Duncan, the auditor, agreed that those
parameters in time would be acceptable for me to depose Dave
Brown and those subpoenas actually were issued. Also, he
agreed that subpoenas for request for production of documents
would also be issued and they were also served or issued to
them and it was understood that this was the direction and the
recommendation and order of the auditor. Thank you.
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THE COURT: Okay, Ms. Book, do you have any
questions of the witness?
MS. BOOK: Your Honor, I do.
CROSS-EXAMINATION
BY MS. BOOK:
Q Ms. Gerber, first, as to the accounts recently
filed by your brother, Colonel Gerber, as trustee, has counsel
for PNC appeared at any of those status conferences dealing
with those accounts since October of 2004?
A Yes.
Q When did counsel appear?
A I believe that counsel of PNC Bank was present in
December 2004 for a status conference hearing.
Q Other than that status conference in December of
2004, since then, has PNC appeared at any proceedings?
A I am not sure about March 17, but it is possible, I
would have to go back to my notes that they were present.
Q Ms. Gerber, do you recall receiving approximately
4,000 pages worth of documents from PNC in May of 2004?
A I received a box on the day of the deposition of
David Brown on May 20, 2004, I didn't count them then, but
allegedly what PNC stated were approximately 4,000 pages.
Q Did you reimburse PNC for the cost of copying those
documents?
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A I have instructed PNC Bank to take it out of the
trust as everybody else also have taken their fees out of the
trust.
Q Do you recall the deposition of Dave Brown in May
of 2004?
A
Yes, I do.
Q Were you present?
A Yes, I was.
Q Were you given an opportunity to ask Mr. Brown
questions regarding the guardianship and the trust of your
mother.
A I was not able to complete that deposition on May
20, and because I had been essentially dumped a box of 4,000
pages of documents which were all mixed up In a matter as if
you took them and threw them up in the air and bunched them up.
If you recall, upon raising -- upon this issue that there was
no way that I could review 4,000 pages much less ask questions
during a one-day deposition, you may recall that Auditor Duncan
set two more months additional time for me to review those
documents stating that they were extraordinary and unusual in
length and number, and despite my request for a continued
deposition to address these issues, that motion was denied and
subsequently that hearing is on appeal now in Superior Court.
Q Do you recall a hearing on PNC's accounts of the
trust and the guardianship that was held in September of 2004?
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What day?
September 28 and 29, 2004?
Yes, I do.
Was David Brown present during that hearing?
A
Q
A
Q
A Yes, he was.
Q Did you have an opportunity to question David Brown
during that hearing?
A I did not have an opportunity to completely ask him
questions and David Brown was not present for the entire two
days, he exited for business reasons from the hearing.
Was David Brown present the entire day of September
Q
28, 2004?
A
I believe he was.
Q During your questioning of David Brown did you ask
him questions with regard to your brother serving as trustee of
your mother's trust?
A I was only able to ask him questions, I had a
limited amount of time and hours that were available to me on
September 28, and for the record as well as the appeal that I
filed, I indicated that that was not adequate to process -- to
depose Mr. Brown nor ask him questions during those two days of
hearings.
MS. BOOK: Thank you, Ms. Gerber, no further
questions.
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BY THE COURT:
Q Ms. Gerber, do you have any testimony as a result
of Ms. Books' questions?
A Yes, I do.
Q Go ahead.
A I would like to state that on May 20 I did receive
a box, despite the fact that I had asked for the production of
documents prior to that time within the purview of the request
for production of documents. And I also asked to see the
original documents, I was never granted that opportunity. On
the day of the deposition May 20, 2004, a box was wheeled in. I
have no verification that these are the entire documents in
it's entirety, and I believe that the Rules of Civil Procedure
in Pennsylvania allow the person who issues a subpoena to look
at the original documents.
In those 4,000 pages of documents which took months
to assimilate and evaluate, I discovered documentation that
indicated that PNC and Fred E. Gerber, II, indeed, conspired
prior to March 21, 2001, in their intentions to take all the
trusts under the management and to instigate a hostile action
to deprive me of my inheritance, whether that was slipped In
there by accident or intention, I do not know. They were
missing documents. I asked for additional documents. I was
not able to organize the 4,000 pages given to me that morning
of the deposition nor was I able to even ask questions.
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1 Subsequently, I was given time to go through them
2 and I asked to depose Mr. Brown on the 4,000 pages; and the
3 auditor, Mr. Duncan, said you can do that during the hearing.
4 During the hearing there were only two days assigned, and
5 during those two days there was not adequate time for me even
6 to come close to address or to depose Mr. Brown in an official
7 deposition manner of the subsequent 4,000 pages of documents,
8 therefore, those documents --
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Q So you are saying that you had a two-day hearing
front of the auditor?
A Yes.
Q All right.
A During that two-day hearing there were multiple
witnesses, and that two-day hearing included the estate of
Mildred J. Gerber and the trustee of Mildred J. Gerber for a
two-year period and Mr. -- Susan -- and Fred E. Gerber, II, did
not provide any request for production of documents and there
in
was a motion for sanctions before yourself, Your Honor, prior
to the hearings to ask him to produce those documents, so I
went into that hearing on September 28 and 29th without any
complete documents from Fred E. Gerber, the trustee, the
executor of the estate, or adequate time to depose PNC Bank or
to request to review the original documents.
I also was not given answers to interrogatories
that were submitted to Fred E. Gerber, II.
So although it may
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appear that the two-day hearing was adequate time, there was
never a complete discovery completed, and those motions were
vacated without prejudice, and I was given the opportunity to
resubmit them. And at this present time the motions for
sanctions have been resubmitted to this Court and not currently
heard. There will be other motions submitted regarding this
problem as well as with PNC Bank.
THE COURT: Ms. Book, do you have any questions as
a result of that testimony?
MS. BOOK: No, Your Honor.
THE COURT: You may step down, thank you. Is there
any further evidence to be presented in this matter which lS
the Motion To Quash Subpoenas and/or for Protective Order?
MS. BOOK: Your Honor, I do have David Brown
present in the room, and would like to ask him several
questions with regard to the motion if Your Honor would allow.
THE COURT: I will allow it.
MS. BOOK: Okay. Then I call David Brown to the
stand.
DAVID A. BROWN,
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MS. BOOK:
Q Mr. Brown, please state your full name and address
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for the record.
A My name is David A. Brown and I live at 11 Bradford
Court, Mechanicsburg, PA.
Q Mr. Brown, what is your employment?
A I am a vice president for PNC Bank, I work in the
Trust Department.
Q In the Trust Department for PNC Bank are you
familiar with the Mildred Gerber Trust and the Mildred Gerber
Guardianship?
A Yes, I am.
Q In fact, were you the administer of both of those
fiduciary accounts at PNC?
A Yes, I was, yes, I am.
Q Do you recall when PNC was appointed guardian of
the estate of Mildred Gerber?
A I believe it was ln April of 2001.
Q Does March 22
A March 22
Q -- 2001, ring a bell?
Did PNC serve as trustee of the Mildred J. Gerber
Trust as well?
A Yes.
Q Did PNC assume the trusteeship on approximately
October 3, 2001, to your recollection?
A Yes.
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Q
PNC?
A
Q
Sr. , Trust?
A
Q
Sr. , Trust?
A
Q
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Q
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A
To my knowledge, it was Frederick Gerber.
II?
II.
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Q Did PNC ever maintain any account at PNC opened by
Frederick E. Gerber, II, as trustee of either the Frederick
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Gerber Trust or the Mildred Gerber Trust?
A Not to my knowledge.
Q Did PNC have any accounts on the commercial side
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that were held in the name of Mildred Gerber or Frederick E.
Gerber, Sr., or Frederick E. Gerber, II?
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A
Q
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role?
A
Yes.
Would you have administered those accounts In your
No, I became interested in them when we became
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guardians and we closed them.
THE COURT: Just for the record, guardian of whom?
A Guardian of the property of Mildred Gerber.
THE COURT: Was she declared incompetent?
A Yes.
MS. GERBER: Excuse me, she is leading the witness,
she is nodding her head and leading the witness, nodding for
him to give a correct answer.
THE COURT: The objection is sustained. The
questions should not be leading questions.
BY MS. BOOK:
Q During the time that PNC was serving as guardian of
the estate of Mildred Gerber and as trustee of the Mildred
Gerber Trust, did they seek accounts from Frederick E. Gerber,
II?
A Yes, we did.
Q Did Frederick E. Gerber, II, file any accounts of
this trusteeship?
A Yes.
Q Did PNC file objections to those accounts?
A Yes, we did.
Q Did Marilyn Gerber file objections to those
accounts?
A Yes, she did.
Q Is PNC still involved with the objections to the
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Frederick E. Gerber, II accounts?
A No.
Q Why is that to your knowledge?
A We were replaced by Attorney Verney.
Q Was that replacement pursuant to Court order to
your knowledge?
A Yes.
MS. GERBER: Excuse me, calls for a conclusion of
law, I object upon -- by Mr. Brown, he is not an attorney.
THE COURT: The objection is overruled.
BY MS. BOOK:
Q To the best of your knowledge are the proceedings
concerning Colonel Gerber or Frederick E. Gerber, II, accounts
ongoing?
A To the best of my knowledge they are, yes.
Q In those proceedings did your counsel inform you
that she had received subpoenas directed to you and to Jennifer
Conway to attend and testify and to produce documents?
A Yes.
Q Did you directly receive those subpoenas from Ms.
Gerber?
A No, I did not.
Q Did you ever authorize your counsel to receive
subpoenas on PNC's behalf from Ms. Gerber?
A No.
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Q Have you reviewed the subpoenas directed to you and
to Ms. Conway?
A Yes.
Q To your recollection did they request a broad range
of documents or a very narrow --
A A very broad range.
MS. GERBER: Objection, calls for a legal
conclusion what is broad and vague in a subpoena.
MS. BOOK: Strike the question.
THE COURT: All right.
BY MS. BOOK:
Q Has PNC already filed accounts of it's
administration of the guardianship and the trust of Mildred
Gerber?
A Yes.
Q Did Marilyn Gerber object to those accounts?
A
Q
A
Q
A
Q
Yes.
Was there a hearing before Auditor William Duncan?
Yes.
Were those accounts confirmed in their entirety?
Yes.
Do you recall testimony --
MS. GERBER: I think Your Honor should
THE COURT: This is going too fast --
MS. GERBER: Your Honor, she is
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THE COURT: -- I am sure the stenographer is having
trouble too
MS. GERBER: She is reading from a scripted
prearranged page here of cross-examination of the witness. I
would ask her to slow down please.
THE COURT: First, it is not cross-examination, it
is direct examination --
MS. GERBER: Excuse me, direct examination --
THE COURT: -- and second, there is no prohibition
on having your questions written out, however, they are leading
questions and to that extent the objection is sustained for
future questions.
BY MS. BOOK:
Q Do you recall that there was a hearing regarding
PNC's accounts?
A Yes.
Q What was the disposition of that hearing, what was
the decision by the auditor following that hearing?
A I believe that the -- it was recommended by the
auditor that our accounts be accepted.
Q To your knowledge did the Court approve the
auditor's report --
MS. GERBER: Objection, Ms. Book continues to ask
leading questions.
THE COURT: The question is what happened to the
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auditor's report, was it confirmed or not confirmed?
A It was confirmed.
BY MS. BOOK:
Q Did you take the stand during the hearing on PNC's
accounts?
A Yes, I did.
Q What is your estimate as to the length of your
testimony during those 2 days?
A Between 6 and 8 hours.
Q Did you previously testify ln this matter?
A Yes.
Q Was that testimony ln the form of a deposition?
A Yes.
Q Do you recall when that was?
A That was in I believe in May of 2004, I don't
remember precisely.
Q Do you recall how many hours your testimony was
that day?
A
Between five and six.
Q
Do you recall on that day whether you produced any
documents to Ms. Gerber?
A Yes, we did.
Q To the best of your knowledge, approximately how
many pages of documents were produced?
A To the best of my knowledge, I believe it was 4,000
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1 pages.
2 Q Had you taken any action with regard to those
3 doc~ments to alter the order of them or change them at all to
4 lead to confusion at all, had you done anything with those
5 documents?
6 A No.
7 Q To your knowledge, were all non-privileged
documents produced?
A To my knowledge, all non-privileged documents were
produced.
Q When did you give those documents to your counsel?
A Several weeks before the deposition.
Q What would be your estimate as to the final date of
documents in that production?
A I turned the entire file over, so it would be up to
several weeks before the deposition.
So you did not pullout documents following October
Q
of 2003?
A
Q
A
Q
A
No.
Do you recall what the copying costs were?
I believe it was about $500.
Where was that paid from?
It was paid from the trust. We understood that we
were going to be reimbursed but we haven't been.
Q Since approximately May of 2004 when you testified
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1 that you produced those documents, have you received any
2 additional non-privileged documents ~elating to the trust and
3 the guardianship?
4
N~t that I know of.
A
~r fa=t, the e~tire file
5 remains with Rhoades & Sinon, the one that I turned over.
6 Q Let me just clarify, have you received copies of
7 ple2dings?
8 A Yes.
9 Q Have you received copies of correspondence with the
10 audito~?
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A
Q
Yes.
To your knowledge, have you received anything that
1S non-privileged that Ms. Gerber would not already have a copy
of?
A Not to my knowledge.
Q Again, did PNC administer any accounts that were
opened by Colonel Gerber as trustee?
A With PNC as trustee?
Q With Colonel Gerber as trustee, did PNC --
A Not to my knowledge.
Q Are you aware of the cost estimated by PNC in
producing the documents requested by Ms. Gerber in the current
23 subpoenas?
24 A I am aware that the cost estimate is about $1200.
25 Q Can you provide an explanation for why the cost is
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1 $1200?
2
A
I presume it is because the --
3
r.:s. GERBER:
Objection,
+- 10 . ,
L-..,~s nas
already been asked
4 and answered before the Court.
5
THE COURT: What?
6
~S. GERBER: This question of the fee has already
7 bep"I explained by Ms. Book.
8
THE COURT: But she is not a witness, she can't put
9 it into evidence, that is what she is trying to do now. The
10 objection is overruled.
11
A
I presume that it is because somebody has to go in
12 physically, pull the microfiche for each month for many years
13 and print it and compile it and get it together. If it lS
14 going to be 2,000 pages, I believe that it is 50 cents a page
15 and $11 an hour for time, so in the aggregate it gets up to
16 $1200, that is what I understand.
1 7 BY MS. BOOK:
18
Q
Are you familiar with an individual named Jennifer
19 Conway (phonetic)?
20
A
Yes.
21
Q
What was her position?
22
A
She was the branch manager In New Cumberland.
23
Q
For PNC?
24
A
For PNC Bank.
25
Q
Is she still an employee of PNC Bank?
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A
I am not aware that she lS still an employee of
PNC.
Q Do you have any knowledge to her whereabouts or
location?
A No.
Q Finally, during your testimony in prior
proceedings, did you testify at all concerning Colonel Gerber
and his actions as trustee of his mother's trust and father's
trust as to your knowledge, your personal knowledge?
A The only thing I knew about his actions as trustee
lS in reviewing his accounting of the trust that we filed
objections to.
Q Do you have any personal knowledge of what Colonel
Gerber either did or did not do as trustee of his parents'
trust?
A I have no personal knowledge.
MS. BOOK: Thank you, that is it.
THE COURT: Ms. Gerber.
CROSS-EXAMINATION
BY MS. GERBER:
Q Mr. Brown, do you have a hostile relationship or
acrimonious relationship with Marilyn Gerber?
MS. BOOK: Objection.
THE COURT: On what ground?
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1 MS. BOOK: Outside.
2 THE COURT: She is trying to bring out the bias of
3 the witness. The objection is overruled.
4 A Yeah, I would say we don't get along.
BY MS. GERBER:
Q Have you in the past threatened to sue Ms. Gerber
if she were to make public knowledge to the public the actions
of PNC Bank and the management of the two above stated trusts
that we are dealing with today?
A I may have while you were screaming at me.
Q What date did you do that?
A I don't remember what day.
Q Could that have been on about the same time that
PNC Bank hit the front pages for FCC violations and
investigations?
A Again, I don't remember what day.
Q Could it be possible that it was around that time
period that PNC was on the front page of the Patriot News?
THE COURT: Ms. Gerber, this isn't helping me at
all.
MS. GERBER: Thank you.
BY MS. GERBER:
Q Mr. Brown, is it accurate that in the hearing of
September 28 before this Court that you testified that
Frederick E. Gerber, II, took money from the Mildred J. Gerber
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1 Trust that restricted only to her use?
2 A I may have testified based on the accounting. I
3 don't remember specifically testifying to that. They would be
4 in the it would be in the transcript.
S Q Are you currently the trustee of the Mildred J.
Gerber Trust?
A PNC is the trustee and I am the administrator.
Q Are you collecting a $5,000 yearly fee as trustee
of the Mildred Gerber Trust?
A No, we are not.
Q Why is that?
A Because we stopped charging -- I believe, this is
recollection, in 2003 as the size of the trust got down to a
level where that wasn't fair. The relationship especially
went down when we distributed the house.
Q Do you charge any fees whatsoever as trustee of the
Mildred J. Gerber Trust?
A Yes.
Q What are those fees currently?
A One percent on the market value.
Q What are the total assets that you have made for
the Mildred J. Gerber Trust?
A I don't remember off hand.
MS. BOOK: Objection, lack of relevance, and I
don't see how this pertains to the motion to quash.
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THE COURT: Ms. Gerber, there has been an
objection, do you have a response to it?
MS. GERBER: Yes, because they show favoritism in
that PNC Bank is currently the legal trustee of the Mildred J.
Gerber Trust, and second of all, they have never sought any
repayment back from any other beneficiary which goes to the
relationship to the measly $500 compared to the hundreds of
thousands of dollars that have been taken from the Mildred J.
Gerber Trust.
THE COURT: The objection is sustained. I am
interested ln whether the motion to quash the subpoena should
be granted or denied.
BY MS. GERBER:
Q Mr. Brown, did you personally collect and marshal
the allegedly 4,000 pages of documents that were provided to
Ms. Gerber on your deposition day on May 20, 2004?
A I put all of our files in a box and delivered it to
a currier who took it to Rhoades & Sinon.
Q Did you make sure that all the files were stacked
in the order by which they were removed from your filing
system?
A I made sure that all of the files were in their
folders within the master folder and that all of the files that
we had were in the box that went to the currier that went to
Rhoades & Sinon.
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Q Did you verify by any certificate or affidavit that
you did, indeed, do what you just testified to today?
I believe I signed
A
this is from recollection
I had to comply with the Court Order, so I believe that
whatever the procedure -- I fulfilled the procedure of the
Co~rt, I am not sure exactly what that was.
Q You Bates stamped each one of the documents, did
you not?
A Excuse me.
Q You Bates stamped -- each page was numbered, Bates
stamping, it says PNC
A I did not, no.
Q Who Bates stamps those documents?
A I don't know that anybody did.
Q So when you submitted the documents to Rhoades &
Sinon, was there any way to verify just actually what you did
give to Rhoades & Sinon?
A I gave the complete account file of the
guardianship and the trust.
Q Are you saying you gave all the original documents?
A Yes, I did.
Q You surrendered the entire documents for the
Mildred J. Gerber Estate and the Mildred Gerber Trust to
Rhoades & Sinon?
A I believe I did.
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Q To this day they are in possession of these
original documents?
A To this day Rhoades & Sinon has the original file.
Q What did you do when you have to manage the Mildred
J. Gerber Trust and you need reference to the Mildred J. Gerber
Trust records, what do you do?
A If I have a situation, I will call over to Joanne.
Q Have you had to do that?
A I don't remember doing it recently.
Q Did you allow Ms. Gerber to view the original
document that you submitted per Ms. Gerber's request for
production of documents?
A Did I allow you?
Q Yes.
A No.
Q Did you allow Marilyn Gerber to view the original
document that you submitted to her request for production of
documents?
A No, to my knowledge we gave you copies.
Q Do you have copies of the original document that
you submitted to Rhoades & Sinon?
A No, I don't.
Q How is it that you know that there is 4,000 pages
submitted, did you count them?
A I did not count them, and I would look at it from
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this point of view, based on mass to estimate that it is 4,000
pages, I would agree in my humble opinion.
Q Since you testified that the documents were taken
out of their files and their appropriate files, am I assuming
they were made by category, utility bills or any utility files,
checks were In a check file, files were
THE COURT: Ms. Gerber, you are not asking for any
of these 4,000 documents again, are you?
MS. GERBER: I am asking for documents within what
they state they gave me that they have no way to verify that
they gave me these documents. They gave me what they wanted to
give me for a limited period of time without my seeing the
originals from March 21, 2001, to October 23, 2003. They have
not shown any way with any verification or affidavit that the
documents they gave to me are -- which Mr. Brown is stating now
lS everything they have on the Fred E. Gerber and the Mildred
J. Gerber Trust.
THE COURT: Is it everything you have?
A It is everything I have to my knowledge.
BY MS. GERBER:
Q Did you not submit to Ms. Gerber a letter on or
about December of 2000 to Fredrick E. Gerber discussing your
intent and interest to take not only the Mildred J. Gerber
Trust under your administration but the Fred E. Gerber, Sr.,
Trust, and in that letter you stated that you had past
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1 experience with hostile beneficiaries naming me and that you
2 knew how to handle them? Do you recall that letter?
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I don't recall it specifically.
Is it possible that you wrote that letter,
A
Q
5 Mr. Brown?
A
Q
It is possible.
Do you also recall that there were e-mails to Mr.
Gerber regarding Marilyn Gerber prior to being appointed as
guardian of the estate of Mildred J. Gerber?
A Clearly we communicated back and forth before we
were going to show up in court and accept an appointment.
Q But you were not legally responsible or under court
order or by subpoenaed by Marilyn Gerber to provide anything
prior to March 21, 2001, were you?
A I don't believe so but
Q Is that right, it is possible
THE COURT: You can't do that. This is not helping
me decide whether the motion --
MS. GERBER: Where I am leading
THE COURT: May I finish. This is not helping me
decide whether the motion to quash the subpoena should be
granted or not. I just don't have time to hear this entire
case. Poor Mr. Duncan apparently has had days of testimony on
it and I am beginning to understand why.
Do you have any more questions that relate
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1 specifically to this issue of whether the motion to quash the
2 subpoenas should be granted?
3
MS. GERBER: Yes.
4 BY MS. GERBER:
J
Q
My question to Mr. Brown is: Is it possible that
6 there are e-mails, correspondence and documents that proceed
7 March 21, 2001, in the possession of PNC Bank in its entirety,
8 meaning PNC Bank, PNC trust administrators, PNC Trust Bank,
9 between your administration?
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A
I gave you everything that I know of that I could
11 get my hands on to give you. I gave you the entire file.
12 Q That was only from March 21, 2001, forward,
13 correct, per the order of this
14 A We complied with the order, that is what the order
15 said.
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Q
That is right, so it is possible that you could
17 back into your files and find other documents preceding and
18 post-dating the time period of the PNC hearing, correct?
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A
If I saw anything relating to it in the file it
would have been sent along.
I just turned the entire file
21 over.
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Q
Again --
THE COURT: No, you are not gOlng to do it again.
24 I have heard this question too many times already. You have
25 five more questions that you may ask this witness, and then
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that is it.
Pick your best five questions.
2 BY MS. GERBEE:
3
Q
Do you recall that Mrs. Gerber stated that she had
4 not completed asking you questions on the 4,000 documents on
5 May 20, 2001, and asked to continue that deposition?
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A
Vaguely.
7
Q
Mr. Brown, was it your belief that Ms. Gerber could
8 have attempted to ask you on 4,000 pages of documents in a six
9 hour period of time?
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A
I think six hours is an incredibly long time and,
11 yes, personally
12
Q
Are you stating that you personally would be
13 capable of asking questions on 4,000 individual pages of
14 documents in six hours?
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A
I think I could ask questions after reviewing the
16 documents relative to the case and how these documents fit in.
17 I mean if you want to go page by page, item by item, it doesn't
18 sound like it; but six hours of questions that you complied
19 after reviewing the material I would think would do it in my
20 opinion.
21
Q
You already testified that Ms. Gerber never had an
22 opportunity to review the 4,000 pages on the morning of May 20,
23 so it would be impossible for her to review those documents,
24 would it not have been?
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A
On May 20, yes; but I testified in the hearing
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forever it seemed on your review of those documents.
Q PNC Bank already testified that they filed a
citation to this Court because they wanted to marshal the
assets and discover what Fredrick E. Gerber, II, was doing with
the Mildred J. Gerber Trust and the Fred E. Gerber, Sr., Trust.
Upon receipt of those documents, you filed objections,
Mr. Brown. In those objections, you stated, I am leading up to
a question, Your Honor
THE COURT: This is your fifth question.
BY MS. GERBER:
Q In these objections you stated that Mr. Gerber had
paid himself and other beneficiaries inappropriately to the
best of my knowledge. Did PNC Bank -- this leads to your
request of my $500 payment or a future $1200 -- did you ever,
ever recoup or request Frederick E. Gerber, II, Jane Haslin
(phonetic) or their issues to ever repay back monies that they
took inappropriately from both of the trusts?
A We filed objections to the accounting as a way of
getting after that.
Q But you never --
THE COURT: Sorry, but you asked your five
questions. Ms. Book, do you have any further questions?
MS. BOOK: Your Honor, just clarification.
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REDIRECT EXAMINATION
BY MS. BOOK:
Q Mr. Brown, did you pull documents from your file
prior to March 22, 2001, prior to turning it over to your
counsel?
A I don't remember specifically, but what I am
testifying is that everything I could get my hands on I turned
over. I do not have any data that I am aware of prior to the
day I turned it over, and I fully complied with the order.
MS. BOOK: Thank you, Mr. Brown, no further
questions, Your Honor.
THE COURT: Ms. Gerber, do you have any questions
as a result of that question?
RECROSS-EXAMINATION
BY MS. GERBER:
Q You testified, Mr. Brown, without a doubt that
there are no other documents present prior to March 21, 2001,
and after October 23, 2003?
A I can testify that I am not aware of any.
Q You are not aware of any, so it is possible that
some could exist upon searching and looking for them?
A I searched and looked, as I say, I am not aware
that there are any such documents.
Q But Ms. Gerber has requested for the checks from
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1 Fred E. Gerber and the Mildred J. Gerber Trust, which is what
2 you requested also when you filed your objections in order to
3 marshal the assets.
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A
All of that was put into the file.
Q Is it your understanding, Mr. Brown, today that PNC
Bank is any closer to understanding the asset value at the
beginning and at the end of the Fred E. Gerber and Mildred J.
Gerber Trust? Do you have a clue of what that money figure is?
A We are not concerned with the Fred E. Gerber Trust.
Q What about the Mildred J. Gerber Trust, do you have
any interest in recouping any of the monies from that?
A We are currently administering the trust, we filed
the accountings, the accounts are all approved. What we want
to do is distribute.
Q But the hearing hasn't been held, Mr. Brown, and
you are currently this trustee of the Mildred J. Gerber and you
are legally responsible to grow that trust, administer that
trust and marshal all the assets of the trust, including
anybody who takes money illegally from that trust
THE COURT: What is the question?
BY MS. GERBER:
Q Are you not interested in marshaling all of the
assets that were taken by Fred E. Gerber back into the Mildred
J. Gerber Trust as trustee of the Mildred J. Gerber Trust?
MS. BOOK: Your Honor, objection as to relevance to
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the motion to quash.
THE COURT: How does this relate to whether the
motion to quash subpoenas should be granted?
MS. GERBER: It relates to the fact that they are
the reason why we are here today. PNC filed the citation, Your
Honor. PNC filed the objections. Ms. Gerber trailed behind
them because she told them if they didn't this would become an
issue that she would take them to court, that they weren't
marshaling, they had no clue what the assets were on Mildred J.
Gerber, and she consistently came to the bank and showed them
losses, damages, insurances, wasting.
THE COURT: How will this help me --
MS. GERBER: So we have to ask ourselves today,
Your Honor, why is PNC resisting giving the very documents that
will show what the assets are of these trusts. After seven and
a half years we have to ask ourselves why PNC Bank and 60
attorneys were participating in preventing the demonstration of
the value of these two trusts. That is what nobody seems to
understand.
THE COURT: I think the question is are you trying
to get back any monies from Fred E. Gerber to put into this
trust?
A No.
BY MS. GERBER:
Q Why is that, Mr. Brown?
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A Because we filed our accountings and they were
approved.
Q But you have additional accountings that you
currently filed with this Court, did you not?
A Yes, that is for the period since the last
accounting.
Q But there still remalns the hearing on the removal
of sizeable funds and loans by Fred E. Gerber and issues from
the Mildred J. Gerber Trust over which you are still currently
legally the trustee of this trust, are you not?
A We are the trustee.
THE COURT: All right. I am going to give you
another four questions and then --
MS. GERBER: This hearing is
THE COURT: -- and then that lS it --
BY MS. GERBER:
Q This hearing, could it not result in surcharging
Frederick E. Gerber, II, which would result in him having to
repay these monies back to the Mildred J. Gerber Trust?
A I am not an attorney.
Q That's right. But if Frederick E. Gerber, II, is
surcharged and ordered to give it back to the Mildred J. Gerber
Trust, you are the trustee, are you not?
A We will receive the money, yes.
Q Have you not filed currently a motion to resign as
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the trustee of the Mildred J. Gerber Trust and return it back
to Fredrick E. Gerber?
A Yes, we did.
THE COURT: This is your last question.
BY MS. GERBER:
Q You went and removed Frederick E. Gerber, II, as
trustee of the Mildred J. Gerber Trust, you expended over a
hundred thousand dollars in legal fees for the management,
retrieval, the citation, the objections of the Mildred J.
Gerber Trust, and you now want to resign and give it back to
the Frederick E. Gerber, II. Would you please tell us why?
A Because Frederick E. Gerber, II, is the executor of
Mildred Gerber's estate.
THE COURT: That was your last question. Ms. Book,
do you have any further
MS. GERBER: Excuse me, objection, that calls for a
conclusion of law, he is not the executor.
THE COURT: You asked him the question. How can
you object to the answers --
MS. GERBER:
THE COURT:
MS. BOOK:
I apologize.
Ms. Book, do you have anything further?
Nothing further, Your Honor.
THE COURT: All right. You may step down, thank
you. We will enter this order: And Now, this 16th day of
June, 2005, upon consideration of the Motion To Quash Subpoenas
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1 and/or for Protective Order filed by PNC Bank National
2 Association, and following a hearing, the motion is granted to
3 the extent that the subpoenas at issue are quashed.
4 Court is adjourned.
5 (Court adjourned at 4:15 p.m.)
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CERTIFICATION
I hereby certify that the proceedings are contained
fully and accurately in the notes taken by me on the above
cause and that this is a correct transcript of same.
O~{JrJ~-
Patricia C. rrett
Official Stenographer
The foregoing record of the proceedings on the
hearing of the within matter is hereby approved and directed to
be filed.
J~l\2.~ )ou~
Date '
f
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