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HomeMy WebLinkAbout08-23-02 ~ '. , \ 1 ' . r . . Amy 1. Mende]sohn Attomey ill No. 81084 Rhoads & Sinon LLP One South Market Square P. O. Box 1 ]46 Harrisburg, PA 17108-1146 (7] 7) 233-5731 Attomeys for Petitioner IN RE: MILDRED J. GERBER IN THE COURT OF COMMON PLEAS TRUST UNDER AGREEMENT, CUMBERLAND COUNTY dated December 19, 1997 COMMONWEAL TH OF PENNSYLVANIA ORPHANS' COURT DIVISION NO. 21-2002-0540 OBJECTIONS OF MILDRED J. GERBER. BENEFICIARY NOW COMES, PNC Bank, N.A., as Guardian of the Estate of Mildred J, Gerber, an '.: Incapacitated'p'erson,-hy and through its attorneys, Rhoads & Sinon LLP and objects to the First and Final Account of Fred E. Gerber, II, trustee of the Mildred J. Gerber Revocable Trust, filed with the Orphans' Court Division of the Court of Common Pleas of Cumberland County, on July 8, 2002, for the following reasons: 1. The objector, PNC Bank, N.A. (the "Objector"), is the Guardian of the Estate of Mildred J. Gerber, an incapacitated person. A copy of the Order of this Court dated March 22, 2001, appointing Objector as guardian is attached hereto and incorporated herein as Exhibit "A." 2. Mildred J. Gerber (the "Beneficiary") established the Mildred J. Gerber Revocable Trust on December 19, 1997 (the "Trust"). The Beneficiary subsequently amended and restated the Trust on August 2, 1999, and again amended the Trust on January 25,2001. A copy of the amended and restated agreement of trust and the amendment thereto are attached hereto and incorporated herein as Exhibit "B." 441204,1 . . I . T , r l I I 3. During her lifetime, the Beneficiary is the sole beneficiary of the Trust as set forth in Article 2 thereof. Upon the Beneficiary's death, Article 4 of the Trust provides that the first $370,000 of Trust assets shall be distributed outright in equal shares of$185,000 each to the Beneficiary's children, Fred E. Gerber, II and Jane N. Heflin. The remainder of the Trust assets shall be distributed in equal shares to Fred E, Gerber, II, Jane N. Heflin, and the Beneficiary's other daughter, Marilyn J. Gerber, with Marilyn J. Gerber's share to be held in trust for her benefit. 4. Fred E. Gerber, II (the "Accountant"), the son of the Beneficiary, was the Trustee ofthe Trust from at least January 1, 1998 until October 3, 200l. 5. On October 3, 2001, pursuant to its authority as guardian of the estate of the Beneficiary, the Objector removed the Accountant and appointed itself as successor trustee. A copy of the Removal of Trustee and Appointment of Successor Trustee is attached hereto and incorporated herein as Exhibit "C." 6, The Accountant filed a First and Final Account (the "Account") for the Trust on July 8, 2002. 7. The Account fails to conform to the fiduciary accounting standards set forth in Supreme Court Orphans' Court Rule 6.1, and breaches Accountant's duty to render a clear and accurate account. In particular, the Account: -2- . , . , < I , . , ) (a) fails to separately state disbursements and distributions of income and principal. Distributions of income and principal are subject to different standards as set forth in Article 2 of the Trust agreement. The Trust provides that all income shall be distributed to the Beneficiary, while principal shall be distributed only as requested by the Beneficiary or "for her support, maintenance, comfort or other benefit, or to meet the costs of any illness or accident which may affect her"; (b) fails to report the fiduciary acquisition value of the Trust assets; (c) fails to report with specificity gains and losses on sales or other dispositions of Trust assets, such as the unrealized losses noted in 1998, 1999, and 2000; and (d) fails to report investments made and changes in investment holdings, such as the shares of the Nuveen PA Investment Quality Municipal Fund converted in 1999 and 2001 and the Strong High Yield Municipal Bond Fund converted in 2001. 8. The Account shows payment of interest on a margin account in 1999, 2000, and 2001. These payments constitute wasting of the Trust assets in violation of Accountant's fiduciary duties. 9. The Accountant made multiple distributions to individuals other than the Beneficiary, including, inter alia, the Accountant, Jane Heflin, Sascha Gerber, Mischa Gerber, and John Hanseir, contrary to the terms of the Trust agreement and in breach of the Accountant's - 3 - . , . , , , . , fiduciary duties. The Beneficiary is the sole beneficiary of the Trust during her lifetime, and the Trust agreement does not permit the trustee to make gifts on behalf of the Beneficiary. 10. The Account reports that on February 24, 1999, the Accountant paid to himself from the Trust assets an advance of $17,700 "against his Estate share" at the instruction of the Beneficiary. The advance is contrary to the terms of the Trust since the Beneficiary is the sole beneficiary of the Trust during her lifetime, and is a breach of Accountant's fiduciary duties. 11. On January 23, 2001, Accountant distributed to himself a gift of $30,000 "by instruction of Mildred J. Gerber" contrary to the terms of the Trust and in breach of Accountant's fiduciary duties. The Accountant is not the current beneficiary of the Trust, and the Trust Agreement does not permit the trustee to make gifts on behalf of the Beneficiary. 12. The Account reports a loan to Jane N. Heflin from the Trust on August 31, 1999, of $5,000, and a loan to Sascha Gerber on July 11, 2001, of $500. The Accountant fails to account for the corresponding notes for the amounts loaned. 13, Accountant paid from the Trust assets expenses for a rental property in Baltimore, Maryland that is not owned by the Beneficiary or the Trust, but instead is owned by the Fred E. Gerber, Sr. Trust. In particular, the Accountant paid the foIIowing amounts related to the Baltimore property: (a) November 14, 1999, $10.00 to "Maryland Dept. of the Envir." for "Processing Fee" -4- . I . . . , ) (b) May 6,2000, $300.00 to "Foe Cross" for "Roof Repair _ Baltimore" (c) July 27,2000, $1,590.89 to "Director of Finance" for "Property Tax - Baltimore" (d) December 17, 2000, $10.00 to "Maryland Dept. of En vir." for "Envir. Assessment Fee" (e) August 20,2000, $15.00 to "Director of Finance" for "Residential Property Stat." (f) December 17,2000, $10.00 to "Maryland Dept. of Envir." for "Envir. Assessment Fee" (g) November 21,2001, $48,00 to "Valley Bank ofMD" for "Ground Rent - Baltimore." 14. The Accountant requests a commission and administration fee to be paid from the Trust. The amount requested is not reasonable as it exceeds the standard rate of compensation for administration of revocable trusts. In addition, expenses of the Accountant, which should reduce the commission and fees payable, were paid from the Trust as follows: (a) May 30, 1999, $103.38 for "Office Supplies for Trust Management" (b) August 8, 1999, $1,082.51 for "Scanner/Fax/Copier for Trust Management" (c) November 11,2001, $585.10 for "Office Supplies - Trust Management. " - 5 - . . 1 . " : . 15, Objector reserves the right to raise further objections that may arise from time to time, WHEREFORE, PNC Bank, N.A., as Guardian of the Estate of Mildred J. Gerber, an incapacitated person, respectfully requests that this Court: (a) deny the request of the Accountant, Fred E. Gerber, II, to confirm the First and Final Account of the Accountant for the Mildred J. Gerber Revocable Trust originally dated December 19, 1997, as filed; and (b) surcharge Fred E. Gerber, II for the amount of distributions and disbursements improperly paid from the Trust as set forth in the foregoing Objections. RHOADS & SINON LLP BY:~ Amy J. e delsohn, Esquire Supreme Court ID# 81084 One South Market Square P. O. Box 1146 Harrisburg, P A 17108-1146 (717) 233-5731 8 }~O2 Attorneys for Objector Date: -6- I . . I . . r . VERIFICA nON /)A-vl D 14-. d/Z.4J'V,./ , the (//~ fJ,.~s./d e.d of PNC 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 Objections of Mildred J. Gerber, Beneficiary are true and correct to the best of his /her knowledge, information and belief. PNC BANK, N.A. By: ~ Title: IIICL jJ,,,su( in/- Date: ~ff ~LI 't<J1I Z- EXHIBIT A y \,.... '-- . , , , . . IN RE: APPOINTMENT OF A IN THE COURT OF COMMON PLEAS OF GUARDIAN OF THE ESTATE OF CUMBERLAND COUNTY, PENNSYLVANIA MILDRED J. GERBER NO. 21-01-92 FINDINGS (1) Mildred J. Gerber, born November 9, 1914, suffers from dementia that impairs her capacity to make and communicate decisions. (2) Her ability to receive and evaluate information effectively and communicate . decisions is impaired to such a significant extent that she is totally unable to manage her financial resources. (3) The estrangement between one of her daughters and her other daughter and son, and the substantial assets in her estate, requires the appointment of a corporate guardian. (4) A plenary guardian of the estate is necessary because her incapacity is permanent. (5) The guardianship must be for an unlimited period. ORDER OF COURT AND NOW, this 220d day of March, 2001, PNC Bank is appointed plenary guardian of the estate of Mildred J. Gerber. By tl).e Court, ATRUECOPYFROMRECORD ( In Testimony wr:wof, I !"]ere~nto set my hand and th~ ::.:"~1 ,~' ~':_':,.'.~ (~..::. :..~ Cariisie. PA -'-.' ,."ltpriL__'o.Q! '~flU.fJJhGtih ~ . ell;;; :',~: ,; -.'; ,;': -.,: (_':)urt Ct~, r~oe 2.n.j ':;'cul,t:'y EXHIBIT B . . , ~9)>3-, . . MILDRED J. GERBER REVISED AND RESTATED REVOCABLE TRUST AGREEMENT \ \.... THIS REVISED AND REST A TED AGREEMENT made as of this.~ day of August, 1999, by and between MILDRED J. GERBER of 623 Hilltop Drive, New Cumberland, Pennsylvania, 17070, hereinafter referred to as the "Grantor" and COL. FRED E. GERBER II, hereinafter referred to as the "Trustee". 1. The Revocable Trust Agreement between MILDRED J. GERBER as Grantor and MILDRED J. GERBER and FRED E. GERBER as Trustees and COL. FRED E. GERBER, II, successor Trustee, dated December 19, 1997 is revised and restated as follows: ... 2. The Grantor continues the property, IN TRUST, for the following purposes: (a) To pay the income to the Grantor in convenient installments at least quarter- annually. RUPP" MEIKLE 355 North 21- Street, Suite 205 Camp Hill, PA 17011 717-761-3459 1 ' , . - .. . . . . . , . (b) To pay the Grantor, at any time or times during her life, such sums from or any part or all of the principal as she may request in a written instrument delivered to the Trustee. (c) To pay to the Grantor, at any time or times during her life, such sums from or any part or all of the principal as the Trustee may, in his discretion, determine to be reasonably necessary for her support, maintenance, comfort or other benefit, or to meet the costs of any illness or accident which may afrect her. (d) Upon the death of the Grantor, to pay the then remaining principal, if any, as the Grantor may appoint in favor of her estate or in favor of others, such power to be exercisable by her in a will in which she expressly refers to this power. ~ (e) If or to the extent to which the Grantor fails effectively to exercise the power granted to her in (d) above, the principal, if any, remaining on her death shall be paid as provided in Paragraph 4 below. 3. Upon the Grantor's death, the Trustee shall pay to the Grantor's estate an amount equal to the trust's fair share, determined as provided below, of all estate, inheritance and other death taxes (including any interest thereon and penalties with respect thereto), federal, state and other, imposed by reason of the Grantor's death in respect of property held by the trust or otherwise. The trust's fair share of such taxes shall be determined by the executors or 2 -- . . . . administrators for each tax separately and, for each tax, shall be the proponion of the tax which the value of. the property held by the trust in respect to which the tax is imposed bears to the value of all property in respect to which the tax is imposed. A tax shall not be considered imposed in respect to property to the extent of any deduction, credit, exemption or exclusion allowed in respect to such property. The determination by the executors or administrators of the amount payable under this paragraph shall be final, and the Trustee shall pay such sums without making inquiry into their accuracy. Upon making payment of the amounts determined, the Trustee shall be discharged from any liability with respect to such payments from further accountability therefor. Such payments shall be made out of the principal of the trust. 4. (a) One third to the son of the Grantor, Co!. Fred E. Gerber, II. .. (b) One third to the daughter of the Grantor, Jane N. Heflin. (c) One third to the PNC National Bank, Trustee for the daughter of the Grantor, Marilyn Jo Gerber, IN TRUST, nevertheless, to hold invest and reinvest the same and after paying all of the expenses incident to the management of the trust, to pay over the net income therefrom at least quarter annually to the daughter of the Grantor, Marilyn Jo Gerber. 3 .-- . - . . , . (d) To pay to the daughter of the Grantor, Marilyn at any time or times such sums from or any part or all of the principal as the PNC Bank Trustee may in its sole discretion detennine to be reasonably necessary to pennit her to maintain her usual and normal standard of living or to meet the costs of any illness or accident which may affect her. (e) In the event the daughter of the Grantor, Marilyn predeceases the Grantor or dies during the tenn of Marilyn's trust, the remaining principal and any accumulated but undistributed income shall be paid in equal shares to the son of the Grantor, CoL Fred E. Gerber, II and the daughter of the Grantor, Jane N. Heflin, or if either does not survive the Grantor or Marilyn, to the respective issue of such deceased person. ~ 5. The PNC National Bank, Trustee, in exercising any discretionary powers given to it under the above provisions of this trust, shall take into consideration any other assets or income owned by or ava~lable to the daughter of the Grantor, Marilyn, except that the PNC Bank Trustee shall be prohibited from making any payments in reimbursement to any governmental entity which may have incurred expense for the benefit of the daughter of the Grantor, Marilyn, and the PNC Bank Trustee shall not pay any obligation of the daughter of the Grantor, Marilyn, which obligation is otherwise payable by a governmental entity or pursuant to any governmental program of reimbursement or payment. It is the Grantor's primary purpose in creating this trust to benefit the daughter of the Grantor, 4 . - . . . Marilyn, and not to preserve the principal for the benefit of the son of the Grantor, Fred, and the daughter of the Grantor, Jane; this purpose shall be carried out in determining any questions which may arise between the interest of the daughter of the Grantor, Marilyn, and the interest of the son of the Grantor, Fred, and the daughter of the Grantor, Jane. 6. Whenever a Trustee is directed or authorized to make payments to a person, such Trustee is authorized, in his or its discretion, ,to apply such payments to or for the use of such person. 7. Wherever a Trustee is given the discretionary power to make payments from the principal or income of a trust, no Trustee who is a potential recipient of such a payment may exercise his or her discretion in his or her own favor. ~. 8. The word "issue" as used in this agreement (I) shall mean issue per stirpes and (ii) shall include those born after the date of this agreement. The word "minor" as used in this agreement shall mean a person under the age of majority in the jurisdiction in which such person is domiciled, and the word "minority" shall mean that period before such person attains the age of majority. The words "Trustee" and "Trustees" apply to and include not only the Trustees COL. FRED E. GERBER, IT and PNC NATIONAL BANK, but also, unless otherwise specifically provided, any additional or successor Trustee(s). The word 5 .-- . - ----------- -~._-- - , . . "discretion" means "sole, exclusive and unrestricted discretion. II Unless the context otherwise requires,. the masculine shall be deemed to include the feminine and neuter, and the use of the singular and plural shall be interchangeable. 9. Without limiting the authority which all Trustees would otherwise have pursuant to law or pursuant to other provisions of this agreement, they are hereby vested with the following discret'onary powers which they shall have until the fInal distribution of all assets in their hal1da: (a) To retain for as long a period of time as they may consider advisable or proper any property which may at any time be in their hands. ... (b) To sell at public or private sale or to exchange any property which may at any time be in their hands, without application to court, on any terms which they may consider advisable or proper, including terms involving an extension of credit for any period of time and with or without security. (c) To invest in or otherwise acquire any property, without being bound by any provision of law restricting investments by trustees, including but not limited to common and preferred stocks, secured and unsecured obligations, mutual and common funds, other securities, mortgages, and interests and options in any of the foregoing. 6 . , . .-- . . . . (d) To acquire and retain property without regard to any principles of diversification. (e) To acquire, exercise, seIl or abandon conversion, subscription and other rights and options in connection with securities or any other property, and to grant options for any period of time. (f) To operate, repair, alter, improve, insure, grant options upon, mortgage, partition, or lease for any period of time any real property or interest in real property which at any time forms part of any trust herein created. (g) To employ and pay investment advisers, accountants, attorneys, bookkeepers, clerks, stenographers and other assistants. .. (h) To borrow money for any purpose, including but not limited to the payment of taxes; this power to include the power to borrow from income for the benefit of principal or from principal for the benefit of income, with or without interest, and to pledge or mortgage property as security for money borrowed. (i) To lend money or other property to any person, corporation, partnership, trust or other entity, including a beneficiary hereunder. (j) To make any division or distribution hereunder in kind or in cash or partly in each. 7 . - . (k~ . To determine, in case of re,asonable. doubt on their patt, whether any pr,operty, . coming into their hands constitutes income or principal, and whether any payment or expenditure made by them shall be charged to income or to principal, but any distribution by a corporation or association made to the Trustees in the shares of the distributing corporation or association, whether in the form of a stock split or stock dividend, shall be allocated wholly to principal. (1) To place the assets of the trust or any part of them in one or more bank, brokerage, custodian or other accounts with any banks, trust companies, or stock brokerage , fIrms, and to pay the cost of maintaining such accounts. (m) To maintain bank, brokerage, custodian and other accounts under the title of MILDRED J. GERBER TRUST, or in the name of the Trustees or any of them, ~. followed by the words "SPECIAL ACCOUNT". (n) To keep property of the trust in any convenient place of safekeeping, without limitation, provided that such property is at all times earmarked as being the property of the trust. (0) To delegate to anyone of the Trustees, or to others, any nondiscretionary power, including but not limited to the power, singly or with others, to sign checks, withdrawal slips, instructions for the receipt or delivery of securities or other 8 - . , . . property, and instructions for the payment or receipt of money, and the power, singly or with others, to have access to any safe deposit box or other place where property of any trust created pursuant to this agreement is deposited. 10. No Trustee shall be required to furnish any bond, undertaJdng or other security for the faithful discharge of his duties as Trustee, nor shall any Trustee be required to file any interim account of his proceedings in any court in any jurisdiction in which he may be called upon to act. No Trustee shall be responsible or liable for the manner in which any discretion is exercised pursuant hereto, or for any misinterpretation of this agreement, or for any act or omission of any other Trustee, or, unless his conduct amounts to fraud or willful misconduct, for any act or omission of his own. ... 11. Any person, including the Grantor, may, at any time and from time to time, add additional property by will or otherwise to the trust, providing such property is acceptable to the Trustees. Any property so added shall become a part of the trust estate and be subject in all respects to the terms and conditions of this agreement. 12. Any statement sent by registered mail or delivered by any Trustee to, or any release to a Trustee signed by any beneficiary who is living and of full age and sound mind, or any statement so sent or delivered to, or any release signed on behalf of any beneficiary by the executor or administrator of any beneficiary if the beneficiary is not living, or a parent, guardian or committee of a beneficiary who is living but not of full age and sound mind, 9 . I~ . . . , shall conclusively discharge the Trustees from any and every claim and demand of any such beneficiary with respect to any matter contained in such statement or release, except with respect to any matters in such statement as to which written objection is made to and received by the Trustee rendering the statement within sixty days after the statement has been sent or delivered. Any such release, if given with respect to all matters relating to the trust and the administration thereof, with or without formal or informal accounting or the rendition of any statement shaH conclusively discharge such Trustee from all claims of the beneficiary by whom or on whose behalf the release was signed, and from all claims of the then living descendants of such beneficiary having no interest in the trust conflicting with that of such beneficiary, and from all claims of such beneficiary's unborn issue, with respect to all matters relating to the trust or the administration thereof, including claims which were not disclosed to or not known by...such beneficiary or the person signing the release on such beneficiary t s behalf. 13. Any Trustee may resign by executing and acknowledging a written resignation and delivering it to an acting Trustee, if there is a Trustee acting, or if not, to the Grantor if she is then living, or if not, to the then income beneficiaries of the trust. 14. (a) The Grantor shaU have power to remove any Trustee and to designate additiOnal Trustees or successor Trustees. Any designation as Trustee shall be revocable at any time prior to the qualification of the person so designated. 10 . , . (b) . After the death of the Grantor, the, Trustee or Trustees acting from time to time' . shall have the power to designate additional Trustees to serve with them or successor Trustees to serve upon the occurrence of a further vacancy if the successors named herein or designated as provided herein are unable to act. The powers provided for by this paragraph shall include the power to designate different Trustees for different trusts created herein. (c) The Trustees acting from time to time shall have the power to deliver any or all of the assets of the trust to any Trustee or Trustees then acting in any jurisdiction. . This power shall include the power to administer separate trusts created herein as separate entities with different Trustees in different jurisdictions. It is the Grantor's intention that if the assets of the trust are delivered to another jurisdiction, they be aclmiI}ister~. in and subject to the laws of that jurisdiction. (d) Each of the powers granted by this paragraph shall be exercisable by a written and acknowledged instrument. A designation shall become effective upon the delivery thereof to the person so designated, and the qualification of such person in the manner hereinafter provided. A revocation Qf a designation shall become effective upon delivery thereof to the person whose designation is revoked, except that a revocation to be effective need not be delivered to the person designated if the designation has not been delivered to such person. A removal shall become effective upon the delivery of the instrument of removal to the Trustee so removed. 11 . , ilia- . . . . .. . (e) , Additional and successor Trustees' shall be vested with ail the discretion, authoritY, , rights and immunities and be subject to all of the duties of Trustees named pursuant to this agreement. 15. Any additional or successor Trustee shall qualify by delivering a written and acknowledged acceptance of the trust to an acting Trustee, if there is a'Trustee acting, or if not to the 1 Grantor, if she is then living, or if not to the then income beneficiary of the trust. 16. COL. FRED E. GERBER, II hereby accepts the present trust and agrees to execute the same to the best of his ability. 17. The trust shall be revocable by the Grantor, at any time, and either in whole or in part. The Grantor may, in addition, amend or modify this agreement, at any time, in any way whatever. Any such revocation, amendment or modification shall be made by a written and acknowledged instrument delivered to the acting Trustees. After the death of the Grantor, the trust cannot be revoked or amended, and no part of the income or principal of the trusts (this trust and the trust for Marilyn 10 Gerber) can be transferred, pledged or otherwise alienated by any beneficiary, or become subject to the debts of any beneficiary. 12 . -- . . . . . . 18. Unless the governing law has been changed by removal of assets to another iurisdiclion, this agreement and each trust created hereunder shall be construed and regulated by the laws of the Commonwealth of Pennsylvania. IN WITNESS WHEREOF, the parties have executed this agi-eement as of the day and year fIrst above written. Witnesses as to ~~{iJu,d~, Jj~ Mildred J. Gerber MI DRED 1. GERB ,Grantor (]~ t: ct:~ ~C,C/'~ . GERBER, n, Trustee ... , 13 . . '..: ":_~ ~ " -~ , , . . I , . , COMMONWEALTH OF PENNSYLVANIA SS. I COUNTY OF tUn\ Dh--\ClI)(! I ~~5+ On this, the ;~ day of , 1999, before me, a Notary Public, personally appeared MILDRED J. GERBER, Grantor, known to me (or satisfactorily proven) to be the person whose name is subscribed to the foregoing instrument and also acknowledged that she executed the same for the purposes therein contained. IN WITNESS WHEREOF, I have hereunto set my hand and official seal. -&-u~Tu"Li_ q. -V, GL-~ ,,:-J Notary Public NOTARIAL SEAL ... BARBARA J. KOCHER. Notary PUblic Camp HiI~ 8?ro. Cumberland County Mv CommiSSion EXDires Oct. 22. 2001 (Seal) . ill- . . . STATE OF VIRGINIA ss. COUNTY OF On this, the /II Ii day of J-sit4-'XW , 1999, before me, a Notary Public, personally appeared COL. FRED E. GERBER, II, Trustee, known to me (or satisfactorily proven) to be the person whose name is subscribed to the foregoing instrument and also acknowled~ed that he executed the same for the purposes therein contained. IN W~TNESS WHEREOF, I have hereunto set my hand and official seal. L L/.:L~--~ Nolllry Public. ~." ~ ~'i~' ..J'O .~~ .::2 C)~)C.' (Seal) . .-- _. . . . . . . AMENDMENT TO MILDRED J. GERBER REVISED AND REST A TED REVOCABLE TRUST AGREEMENT THIS AMENDMENT IS MADE TO THE MILDRED J. GERBER REVISED AND REST A TED REVOCABLE TRUST AGREEMENT dated August 2, 1999 (Trust), on January~..t' 2001, by MILDRED J. GERBER, Grantor, of623 Hilltop Drive, New Cumberland, Pennsylvania, 17070. 1. This Amendment is made in accordance with Paragraph 17 of the Trust. 2. MARILYN JO GERBER, a daughter of MILDRED J. GERBER, has obtained at least $185,000.00 from MILDRED J. GERBER in the last six months. . 4 3. MILDRED J. GERBER provided for an equal division of her Estate among her 3 children in the Trust. 4. Because ofMARIL YN JO GERBER'S obtaining $185,000.00 from MILDRED J. GERBER in the past six months, MILDRED J. GERBER wishes to revise , . her Trust by taking into account the said $185,000.00, so that the equal division among her children will be maintained. 5. Therefore, Paragraph 4 of the Trust is revised and restated as follows: . . , . , . '4. The residue of the Trust shall be paid as follows: (a) $185,000.00 to the son of the Grantor, COL FRED E. GERBER, II. (b) $185,000.00 to the daughter of the Grantor, JANE N. HEFLIN. (c) The remaining amount after subtracting the above $370,000.00, in equal shares to COL. FRED E. GERBER, II, JANE N. HEFLIN and PNC NATIONAL BANK, IN TRUST, nevertheless, for MARILYN JO GERBER, to hold, invest and reinvest the same and after paying all of the expenses incident to the management of the trust, to pay over the net income therefrom at least quarter-annually to the daughter of the Grantor, MARILYN JO GERBER. . ... (d) To pay to the daughter of the Grantor, MARILYN JO GERBER, at any time or times such sums from or any part or all of the principal as the PNC Bank Trustee may in its sole discretion determine to be reasonably necessary to permit her to maintain a normal standard of living or to meet the costs of any illness or accident which may affect her. (e) In the event the daughter of the Grantor, MARILYN JO GERBER, predeceases the Grantor or dies during the term ofMARIL YN'S trust, the remaining principal and any accumulated but undistributed income shall be . . . . . . paid in equal shares to the son'ofthe'Grantor, COL FRED E. GERBER, II and the daughter of the Grantor, JANE N. HEFLIN, or if either does not survive the Grantor or MARILYN, to the respective issue of such deceased person. 6. In all other respects, except Paragraph 4 as revised and restated, the Trust is ratified and confirmed. IN WITNESS WHEREOF, MILDRED J. GERBER has executed this Amendment to the Mildred J. Gerber Revised and Restated Revocable Trust Agreement the day and year first above written. ~ ~LL 'In. JtL. '? -7)4/~ ~I D J. ER, Grantor . Witness , . ... .. COMMONWEALTH OF PENNSYLVANIA . . : SS COUNTYFOCUMBERLAND . . On this, the ;JS'~day of January, 2001, before me, a Notary Public, personally appeared MILDRED J. GERBER, Grantor, known to me (or satisfactorily proven) to be th~ person whose name is subscribed to the foregoing Amendment to Mildred J. Gerber Revised and Restated Revocable Trust Agreement and also acknowledged that she executed the same for the purposes therein contained. _,_ ~';'~...,~ .'..,., IN WITNESS WHEREOF, I have hereunto set my hand and official seal. /..~..:.'~.-:~-~-_..: ~:.~., . ~~_~/ .,'..~ ;. ~~~~1 ~~ '- . ". - ,-.. l MyCommiSllon ~ <<t& ", . / . '" DIe. 22- - . . , . . . . . . NOTICE TO: COL. FRED E. GERBER, II, TRUSTEE FROM: MILDRED J. GERBER, GRANTOR You are hereby notified that I have amended the Mildred J. Gerber Revised and Restated Revocable Trust Agreement dated August 2, 1999, a copy of which Amendment is attached hereto and incorporated in this Notice. Date: ]an~ 2ll.!!J ~~ . .' RECEIPT AND ACKNOwiEDGEMENT I, Co!. Fred E. Gerber, II, hereby acknowledges receipt of the foregoing Notice. Date: ~ S- 2.00) . EXHIBIT C . . . . . . . . REMOV AL OF TRUSTEE AND APPOINTMENT OF SUCCESSOR TRUSTEE OF THE MILDRED J. GERBER REVOCABLE TRUST PNC Bank, N.A., Guardian of the Estate of Mildred J. Gerber, pursuant to the authority granted in Article 14(a) of the Mildred 1. Gerber Revocable Trust under Agreement, as amended and restated on August 2, 1999 (the "Trust"), hereby removes Col. Frederick E. Gerber, II as trustee of the Trust and appoints PNC Bank, N.A. as sole successor trustee of the Trust. PNC Bank, N.A. hereby agrees to serve as trustee of the Trust. IN WITNESS WHEREOF, intending to be legally bound hereby, PNC Bank has caused this Removal of Trustee and Appointment of Successor Trustee to be executed by its duly authorized representative. ATTEST: PNC BANK, N.A. ~~~IDavr By: ~A.-~ Name: II) 14. ~ I-Yr> Title: III U - fJ,.~ rl 4 en.! Date: Och b.tL ~ .2CX' / 403129,1 .. . . , . . . . . ~ COMMONWEAL TH OF PENNSYLVANIA ) ) ss. COUNTY OF CUMBERLAND ) The foregoing REMOVAL OF TRUSTEE AND APPOINTMENT OF SUCCESSOR TRUSTEE OF THE MILDRED J. GERBER REVOCABLE TRUST was acknowledged before me on October 3, 2001 by Carole E. Yon, Senior Vice President, a duly authorized representative ofPNC Bank, NA, Guardian of Mildred J. Gerber, an incompetent. . , Notarv PublIc: / . .. - ./ --- ---~ NOTARIAL SEAL DE~SE C. SULLENBERGER, Notary Pubrlc My ~ery T~" CU~ber1and ~ miSSIon Expires Nov. 22, .. r .. ~ . " . . . . ~ CERTIFICATE OF SERVICE I hereby certify that on this Z3~ day of Av.~ \.tS +- , 2002, a true and correct copy of the foregoing Objections of Mildred J. Gerber, Beneficiary was served by means of United States mail, first class, postage prepaid, upon the following: Richard C. Rupp, Esquire Rupp and Meikle Attorney for Fred E. Gerber, II 335 North 2151 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 Mrs. Jane Heflin 270 N. Garfield Street Lombard,IL 60148 a~ \\,~> Stephani H. Peck 441204.1