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HomeMy WebLinkAbout07-15-03 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-Q540 IN RE: FRED E. GERBER,SR. ; IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY : COMMONWEALTH OF PENNSYLVANIA : ORPHANS'S COURT DIVISION : NO. 21-1998-0195 DC ,-. ...,.,.. 8 ::::: (i' ::j ~... ~,." OBJECTIONS TO PRE HEARING MEMORANDOlM '- c: ;~)" r- ...... IJ1 ?:; AND NOW comes, MarUyn Jo Gerber, the eldest child and firsf~aught~f?of :'"., t"'...} 'D Mildred J. Gerber and Fred E. Gerber,Sr. and a full beneficiary of both Trusts as stated above in No. 21-2002-0540 and 21-1998-0195. Each of these stated trusts are irrevocable as of the deaths of Fred E. Gerber,Sr. on February 22,1998 and Mildred J. Gerber on January 14, 2003. The Mildred J. Gerber Trust was restated on August 2,1999 and January 26,2001. Objections to Background as provided by the Trustee, Frederick E. Gerber, II in his Pre Hearing Memorandum: I. Denied. Fred E. Gerber,1I was appointed Guardian of Person for Mildred J. Gerber on December 23,2001. 2. The accountant presumably known as the Trustee, Fred E. Gerber, II fails to provide any evidence in the form of receipts, disbursements or transactions to support his observations for the benefit of the Auditor. A. Fred E. Gerber,Trust I. The Accountant has failed to explain why after five and half years, this is the first disclosure that Trust B was never funded. Furthermore, Trust A which is referred to as the first Trust has yet to provide any evidence in the form of receipts, disclosures and transactions the actual original amount of this Trust, the source of the income for this Trust A. The Accountant also known as the Trustee has failed for five and half years to provide one shred of yearly accounting of Trust A or his allegedly non funded Trust B. This instant petitioner who is a full beneficiary of the said Trust A and B has repeatedly requested a yearly accounting since the death of Fred E. Gerber, Sr. This instant petitioner has also stated to this Honorable Court that Fred E. Gerber,ll has failed to provide any accounting for 2002. 2. Denied. This instant petitioner has not seen any evidence in the form of receipts, disbursements, transactions to support any evidence that any of the income has been clarified. Again, there has been no evidence to prove the original financial amount of the original funding of this Trust. 3. Denied. The Accountant again has not provided any evidence in the form of receipts, transactions, and disbursements to support any of the acquisition values. The Accountant has not shown any "paper" of any acquisition that corresponds to his accounting. 4. Denied. The Accountant to this date has FAILED to provide any receipts, any transactions, any disbursements, any check ledgers, any CPA certification of the accounting, any bank statements, any explanation of any disbursements for any amounts paid out from this Trust. ~ 5. Denied. The Accountant has not provided any documents that specified any of the discretionary spending that was intended by the Fred E. Gerber, Sr. Trust. The Accountant has failed to provide any documents which refers to his mother's directions to benefit her grandchildren. Mildred J. Gerber was known to be financially without capacity to make financial decisions and was declared incapacitated in March 2001. This instant petitioner questions how Mildred J. Gerber could have granted approval of such disbursements or even require her signature when this was not a requirement of the Fred E. Gerber, II Trust. The Accountant has made a veiled attempt to cover his disbursements to his own children and to those of his sister Jane Heflin in disproportionate amounts as was intended by Fred E. Gerber,lI who set up this Trust for his three children, Marilyn Jo Gerber, Fred E. Gerber,lI and Jane Heflin. Fred E. Gerber,1I CONSISTENTLY refused to grant any moneys to Marilyn Jo Gerber from March 1998 until the present time including refusing Marilyn Jo Gerber any knowledge of the moneys in this Trust or how it was managed and any accounting history. 6. Denied. The Accountant has failed to give a credible response to the enormous losses which occurred under the management of the Trustee. It is denied that the grantor, Fred E. Gerber,Sr. stipulated that the accountant retain said municipal bonds as much as possible. This was merely a suggestion or guide line to this Accountant. The Accountant allowed huge losses to occur in 1999 without any notice to the beneficiaries until this Court granted PNC Bank's citation for an accounting. Marilyn Jo Gerber met with PNC Bank in April 2001 and warned PNC Bank of the Accountant's incompetencies in managing Mildred .3 . J. Gerber's finances and the failure of the Trustee in not providing any accounting of either of the two Trusts. A Trustee has fiduciary responsibilities to the beneficiaries to produce income and manage the assets prudently. Once the bond market was "tanking", the Trustee had a responsibility to put these assets into more secure investments and not continue to allow huge margin interests to incur. It is not a question of hindsight but rather the incompetence and arrogance of the Trustee in not informing each beneficiary of the assets and plans for investments nor hiring a competent investment manager or even drawing up an investment plan and strategy. The Trustee failed to even ask Marilyn Jo Gerber who had an MBA and years of experience in managing large financial institutions for advice or counsel. The Trustee essentially failed to be responsible for a large amount of money and turned his back on these assets and now he has been discovered is attempting to run from his actions and the surcharge to the accountant. This instant petitioner requests what he was doing during the time that these extraordinary losses were occurring and show the margin interest call schedule with receipts, paper and transactions and especially conversations with Charles Schwab and any other investment companies that were associated with these assets. B. MILDRED J. GERBER REVOCABLE TRUST: I. Denied. This instant petitioner refers to her objections as listed above for the Fred E. Gerber,Sr. Trust and applies them to the Accountant's presentation that he cured the Objections as applied to the Mildred J. Gerber Trust. PNC Bank and Marilyn Jo Gerber each raised separate objections which were quite different from those objections raised for the Fred E. Gerber,Sr. Trust. The Accountant needs to ~ . list exactly which objections he is referring to that are cured in the Accountant's Amendment to the Mildred J. Gerber Revocable Trust. 2. Denied. The Mildred J. Gerber Trust was set up for the sole purpose to benefit Mildred J. Gerber. This was a restricted Trust and no moneys were to be paid to any grandchildren. Therefore there could not have been any allowable modifications to the Mildred J. Gerber Revocable Trust. PNC Bank raised this issue in their objections on August 27,2002. Mildred J. Gerber was known not to have any financial experience as testified before Herbert Rupp and Charles Schwab. Mildred J. Gerber during her married lifetime made no financial decisions for the large sum of moneys involved in this Trust. This Trust was to provide for the needs and requirements of Mildred J. Gerber solely for the remaining years of her Iife,once Fred E. Gerber,Sr was deceased. Instead, the Trustee failed to provide moneys on a regular basis for Mildred J. Gerber and instead essentially stole her moneys for the enrichment of himself, his children and for his sister, Jane Heflin and her children. Mildred J. Gerber was also declared incapacitated in March 2002 by this Court and PNC Bank was appointed her Guardian of Estate. During this time, PNC Bank failed to get control of the assets of this Trust and carte blanche allowed Fred E. Gerber,ll to rob this Trust. Mildred J. Gerber could not have modified her Trust in writing nor intend and want payments made to her grandchildren as this Trust was clearly written by her husband, Fred E. Gerber,Sr for his wife's benefit upon his death as she was incapacitated. The Fred E. Gerber,Sr. Trust was set up for his children and their issues which .5 . was available for payment to the three children and the four grandchildren. The Trustee fails to explain why he raided this restricted Trust of Mildred J. Gerber and did not take moneys from the Fred E. Gerber,Sr. Trust. Marilyn Jo Gerber chalfenges the truth of the Accountant's statement that Mildred J. Gerber granted loans to her heirs. Mildred J. Gerber was NEVER even shown yearly accounting much less any information about her Trust by the Trustee. Therefore, Mildred J. Gerber could not have had any concrete knowledge as to the prudence of these loans. Mildred J. Gerber also knew that her heirs had their own Trust fund as set up for them by the Fred E. Gerber, Sr. Trust. The Trustee fails to show any loan agreement papers or documents for the loan of $5,000 to Jane Heflin or the loan made to Sean Heflin for $2,736. When were these loans made and why were they made from the Mildred J. Gerber Trust. How could PNC Bank have allowed this loan when this Trust was restricted and Mildred J. Gerber was in need of these moneys for her care due to her advanced Alzheimer disease? 3. Denied. The Accountant fails again to provide any documentation, receipts, real estate tax forms, bills and other expenses for the estate in Baltimore, MD. The Trustee fails to account why moneys were taken from the Mildred J. Gerber Trust when PNC Bank was the Guardian of Estate. The Trustee fails to state why he has not repaid this Trust so that it could be producing income. The Trustee fails to explain how this event and mistake happened. It is the opinion of this instant petitioner that this is just one example of many negligent offenses made by the Trustee in an attempt to enrich himself and his children. It is actions such as this ~ . that have shown gross negligence on the part of this Trustee especially in his failure to produce receipts. documents, and transactions and disbursement documents. For the foregoing reasons, this Petitioner, Marilyn Jo Gerber, respectfully requests that this Honorable Court NOT approve the Account's Pre Hearing Memorandum and his request to approve his Accounts as filed. It is a violation of the citation granted by this Court in June 2002 that ordered Fred E. Gerber,1J to produce a full accounting of each of the said stated Trusts. Fred E. Gerber," is currently in the audit stage and this Audit has not been completed. Fred E. Gerber,lJ is also out of the country for an indefinite period of time and it is the opinion of this Petitioner that he is attempting to evade his responsibilities as Trustee and more importantly evade surcharges. It is premature to ask of this Court to accept the Trustee's accounts when there has been no accounting from PNC Bank nor from the Trustee for the year 2002. RESPECTFULLY SUBMITTED DATE: ~/3(2&P + CERTIFICATE OF SERVICE AND NOW, This _day of July,2003, I hereby cedrtify that I have served a tur copy of the within document on the following Objections to Pre Hearing Memorandum by depositing a true and correct copy of the same in the U.S. Mail, postage prepaid, addressed to: Richard Rupp 355 North 21 st Street,Suite 205 Camp HifI,PA 17011 Ms Joanne Christine, Esquire Rhoads & Sinon One South Market Square,12Floor Harrisbur,PA 17018 Ms Jacqueline Verney, Esquire 44 South Hanover Street Carlisle,PA 17013 Ms Jane Heflin 270 North Garfield Lombard,IL 60148 Mr. William Duncan, Esquire One Irvine Row Carlisle, P A 17013 BY:~ 'Mar;1 Jo G r, DATE:lt~ ~3 IN RE: MILDRED J. GERBER TRUST NDER IN THE COURT OF COMMON PLEAS AGREEMENT, dated December 19,1994 ORPHANS' COURT DIVISION CUMBERLAND COUNTY, PENNSYLVANIA NO. 21-2002-0540 CITATION WE COMMAND, you that laying aside all business and excuses whatsoever, you be and appear in your proper person before the Honorable Judges of the Court of Common Pleas, Orphans' Court Division at a session of the said Court there to be held, for the County of Cumberland to show cause why an Account of his administration of the Mildred 1. Gerber E. Trust Under Agreement, dated July 29. 1994. with the Clerk of the Orphans' Court on of before Julv 8. 2002. at 4:30 p.m.. including all receipts. disbursements and distributions of the Trust. or to show cause by that same dae why said Petition shoule not be granted. Witness my hand an official seal of office at Carlisle, Pennsylvania, this 10th day of Ju!y, 2002. UiCLtJp-t '. Joanne Book Christine, Esquire Attorney J.D. No. 82028 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for PNC Bank, N.A. INRE: : IN THE COURT OF COMMON PLEAS OF MILDRED 1. GERBER TRUST : CUMBERLAND COUNTY, PENNSYLVANIA UNDER AGREEMENT DATED : ORPHANS' COURT DIVISION DECEMBER 19, 1997 : NO. 21-2002-0540 IN RE: ESTATE OF : IN THE COURT OF COMMON PLEAS OF MILDRED 1. GERBER, : CUMBERLAND COUNTY, PENNSYLVANIA an Incapacitated Person : ORPHANS' COURTDI\gSION . : No. 21-01-92 3 ~., ~ r"\ " ::=-> -0 :::c N N OBJECTIONS OF PNC BANK, N.A., TO FIRST REQUEST FOR PRODU~TION OF DOCUMENTS OF MARILYN JO GERBER CD "j \Jl PNC Bank, N.A. ("PNC"), by and through their counsel, Rhoads & Sinon, LLP, objects to Marilyn 10 Gerber's Requests for Production to Document as follows: 1. PNC objects to such Requests to the extent that they seek disclosure of information protected by the attorney-client privilege or attorney work-product doctrine. 2. PNC objects to such Requests to the extent that they call for information regarding matters not relevant to the subject matter of this action and not reasonably calculated to lead to the discovery of admissible evidence. Specifically, PNC objects to any request for documents predating the March 23, 2001, the date of PNC's appointment of Guardian of the Person of Mildred 1. Gerber. PNC also objects to any request for documents relating to any assets of Fred E. Gerber, Sr., since at no time has PNC administered any asset of Fred E. Gerber, 513042.1 v~ Sr. PNC also objects to any request for documents relating to any personal checking account of Fred E. Gerber, Sr., or the personal checking account of Mildred 1. Gerber prior to March 23, 2001, because these documents are not relevant to the transactions disclosed in the Accounts filed by PNC in the above matters. 3. PNC objects to such Requests to the extent that they are overbroad, unduly and unreasonably burdensome and oppressive. Specifically, PNC objects to Marilyn 10 Gerber's request for all receipts, debits and transactions supporting each entry in PNC's Account. Ms. Gerber is already in possession of monthly statements for both the Trust and Guardianship Accounts during PNC's administration of both, which support each entry in the Accounts. 4. PNC objects to such Requests to the extent that they call for information not known to PNC, nor reasonably ascertainable by PNC because such information is in the hands of or under the control of third parties not within PNC's control. Specifically, PNC objects to any request for documents relating to Fred E. Gerber, Sr., and any request for documents dated prior to March 23,2001, since these documents are not within the control ofPNC. 5. PNC objects to such Requests to the extent that they call for information already known to Marilyn 10 Gerber or information available to Marilyn 10 Gerber from sources other than PNC which is equally accessible to Marilyn 10 Gerber and to PNC. Specifically, PNC objects to the request for statements for the Trust and Guardianship Account administered by PNC, since these documents have already been provided to Ms. Gerber. 6. PNC objects to such Requests to the extent that they are so vague and ambiguous that they are not subject to reasoned interpretation - 2 - 7. PNC objects to such Requests and to the extent they impose requirements to respond or supplement answers to interrogatories beyond those which are provided for in the Pennsylvania Rules of Civil Procedure. The Objections asserted above shall be deemed to be applicable to and continuing with respect to each of Marilyn Jo Gerber's Requests for Production. Respectfully submitted, RHOADS & SINON LLP By: anne Book Christine ne South Market Square . O. Box 1146 Harrisburg, PAl 71 08-1146 (717) 233-5731 Attorneys for PNC BANK, N.A. - 3 - CERTIFICATE OF SERVICE I hereby certify that on April 12, 2004, a true and correct copy ofthe foregoing document was served by means of United States mail, first class, postage prepaid, upon the following: Marilyn J. Gerber 717 Market Street, #317 Lemoyne, P A 17043 Richard C. Rupp, Esquire Rupp and Meikle 335 North 21st Street, Suite 205 Camp Hill, P A 17011