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IN RE: MILDRED J. GERBER : IN THE COURT OF COMMON PLEAS
TRUST UNDER AGREEMENT : CUMBERLAND COUNTY
dated December 19, 1997 : COMMONWEALTH OF PENNSYLVANIA
: ORPHANS' COURT DIVISION
: NO. 21-2002-0540
IN RE: FRED E. GERBER TRUST : IN THE COURT OF COMMON PLEAS
UNDER AGREEMENT, dated : CUMBERLAND COUNTY
July 29, 1994 : COMMONWEALTH OF PENNSYLVANIA
: ORPHANS' COURT DIVISION
: NO. 21-1998-0195
PRE-HEARING MEMORANDUM
AND NOW comes Frederick E. Gerber, II, (Petitioner), the Executor of
the Estate of Mildred J. Gerber, deceased, the Trustee of the Revocable Trust
of Fred E. Gerber Sr., dated July 29, 1994, now irrevocable by reason of the
death of Fred E. Gerber, and formerly the trustee of the Revocable Trust of
Mildred J. Gerber dated December 19, 1997 and amended on August 2,
1999 and June 26, 2001, now irrevocable by reason of the death of Mildred
J. Gerber, through his Attorneys, Rupp and Meikle and files this Pre
Hearing Memorandum:
BACKGROUND
Frederick E. Gerber, II, (Petitioner), is the Executor of the Estate of
Mildred J. Gerber, deceased, the Trustee of the Revocable Trust of Fred E.
Gerber Sr., dated July 29, 1994, now irrevocable by reason of the death of
Fred E. Gerber, and formerly the trustee of the Revocable Trust of Mildred J.
Gerber dated December 19, 1997 and amended on August 2, 1999 and June
26,2001, now irrevocable by reason of the death of Mildred J. Gerber.
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PHOt~ NO. : 7172433518 P01
FROM : JMlJerne':j , . "' .., -- --- -- .'-..
J. GERBeR : IN THE tOURT Of COMMON PLEAS
REEMENT . CUMBERLAND COUNTY
10,199' ; COMMO~LTH OF PINNSYLVANIA
I ORI'HAN5' COURT DIVISION
: NO. 21-2002-0540
IN IlE: .RID .. GERIIiR TRUST : IN THE COURT OF COMMON PLEAI
UNDER AGRlIMIiNT, dated : CUM..lLAND COUNTY
July 29. 1994 ; COMMONWEALTH OF PENNSYLVANIA
~ ORPHANS' COURT DIVISION
. NO. 11-1.''''(''.,
.
CONSltJI
M. V.rney, I&quire, he...-.y Con...nls 'g the foregoing
f. Anornev Jocttuel[n. M. Verney for GuardIan of the
led Purpo$u vf PrOHc:utlng Obiectlons.
.Q A ~/
-"--<<.-
ellne M. V.t't\8Y. Isqufr.
Dat.: ~ -(j.p~
_ ____ ___________._.... II .....--- PO.--------
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06/18/03 WED 14:12 FAX 717 231 6676 RHOADS & SINON LLP III 003
FRqM : R~pp & Meikle F8X NO. ': 730 0214 Jun. ,18 2003 01:42PM P2
IN RE: MILDRED J. GERBER : IN THE COURT OF COMMON PLEAS
TRUST UNDER AGREEMENT : CUMBERLAND COUNTY'
dated December 19, 1997 : COMMONWEALTH OF PENNSYLVANIA
f " ,~ ORPHANS' COURT DIVISION
: NO. 21-2002-0540
IN RE: FRED E. GERBER TRUST : IN THE COURT OF COMMON PLEAS
UNDER AGREEMENT, dated : CUMBERLAND COUNTY
July 29, 1994 : COMMONWEALTH OF PENNSYLVANIA
: ORPHANS' COURT DIVISION
: NO. 21-1998..0195
CONSENT
PNC Bank, appointed Guardian of the Estate for Mildred J. Gerber,
now deceased, hereby consents to the foregoing Petition to Substitute
Attorney Jacqueline M. Verney for Guardian of the Estate for the Special
Purpose of Prosecuting Obiections.
PNC BANK,
By:~
.
AuthjJ%ed O~icer ~
Title I~'" ~"d
Date: t,ht/oJ
I I
lJi/l10, "T ., A ((
WHEREFORE, your Petitioner requests that this Honorable Court
substitute Jacqueline M. Verney, Esquire, as the successor to PNC Bank,
Guardian of the Estate of Mildred J. Gerber, to prosecute the Obiections filed
by PNC Bank to the Accounts filed by Col. Fred E. Gerber, Trustee.,
RESPECTFULLY SUBMlnED
Date:
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was accepted by Jacqueline M. Verney. Consent dated June 18, 2003,
of Jacqueline M. Verney, marked exhibit "B" attached hereto and
incorporated herein by reference.
17. On December 4, 2002, the Court appointed William Duncan, Esquire,
as Auditor to hear and make recommendations on the Obiections of
PNC Bank, Guardian of the Estate of Mildred J. Gerber, to the Accounts
of the Trustee, Col. Fred E. Gerber, for the Fred E. Gerber, Sr., Trust
and the Accounts of the Trustee, Col. Fred. E. Gerber, for the Mildred J.
Gerber Trust.
18. Marilyn J. Gerber, on behalf of herself as a beneficiary of the two
Trusts, filed Obiections to the Accounts set forth below.
19. Marilyn J. Gerber, by filing Obiections to both Accounts, is an adverse
party to the Petitioner - Trustee for both Accounts.
20. If Marilyn J. Gerber were substituted for PNC Bank, she is in the
position of having a possible conflict of interest between her position
as a beneficiary of the Trust and her position as the representative of
the Estate of Mildred J. Gerber.
21. Because of Marilyn J. Gerber's possible conflict of interest if she were
appointed to succeed PNC Bank to prosecute the Obiections filed by
PNC Bank to the Accounts, she should not be appointed as successor to
PNC Bank.
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as the party in interest.
12. If the Petitioner - Executor substitutes himself voluntarily in accordance
with Pa. R.C.P. 2352 (a) as the successor of record to PNC Bank, he will
be in an adverse position to himself as the Trustee - Accountant, a
potential conflict of interest situation.
13. The Petitioner as Trustee - Accountant is in an adverse position to PNC
Bank, Guardian of the Estate, but if he proceeded under Pa. R.C.P.
2352 (b) to substitute himself - Trustee - in place of the Guardian of the
Person, he would then be in an adverse position to himself as Trustee.
14. The Petitioner requested that PNC Bank continue to serve as Guardian
of the Estate of Mildred J. Gerber for the sole and limited purpose of
prosecuting the Obiections to the Account of the Petitioner - Trustee,
which request was refused by PNC Bank. Copy of PNC Bank consent
dated June 18,2003 is marked Exhibit "A" attached hereto and
incorporated herein by reference.
15. The next logical choice of a party to be substituted for PNC Bank to
prosecute the Obiections to the Accounts, is Jacqueline M. Verney,
Esquire, who was the personal attorney of Mildred J. Gerber during
her lifetime.
16. The Petitioner requested Jacqueline M. Verney, Esquire, to accept
appointment as a party in place of PNe Bank to prosecute the
Obiections filed by PNC Bank if appointed by the Court to do so, which
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Sr., Trust, filed an Amended and Restated First and Partial Account of
his administration of the Trust for the period February 28, 1998 to
December 31, 2001.
3. On December 30, 2002, Petitioner filed a Second and Partial Account.
4. On July 8, 2002, Petitioner, Trustee of the Mildred J. Gerber Trust, filed
a First and Partial Account.
5. On December 19, 2002, Petitioner as Trustee of the Mildred J. Gerber
Trust filed an Amended and Restated Account of his administration of
the Trust for the period January 1, 1998 to December 31, 2001.
6. By Order of this Court on March 21,2002, PNC Bank was appointed
Guardian of the Estate of Mildred J. Gerber.
7. Mildred J. Gerber died on January 14, 2003.
8. The death of Mildred J. Gerber terminated the Guardianship of her
Estate.
9. On February 6, 2003, Petitioner was appointed Executor and Letters
Testamentary on the Estate of Mildred J. Gerber were granted to him
by the Register of Wills of Cumberland County, PA, to No. 2001-0092.
10. The Guardian of the Estate, PNC Bank, filed Obieclions to the Account
filed by the Trustee to the Mildred J. Gerber Trust and to the Fred E.
Gerber, Sr., Trust set forth above.
11. The Executor of the Estate has the right to be substituted for the
Guardian of the Estate with respect to the Obiections to each Account,
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