HomeMy WebLinkAbout11-08-04 (2)
IN RE: MILDRED J. GERBER IN THE COURT OF COMMON PLEAS
TRUST, UNDER AGREEMENT CUMBERLAND COUNTY
dated, December 19,1994 COMMONWEALTH OF PENNSYLVANIA
ORPHANS' COURT DIVISION
NO. 21-2002-0540
IN RE: FRED E. GERBER,SR. IN THE COURT OF COMMON PLEAS
UNDER AGREEMENT,dated CUMBERLAND COUNTY
July 29,1994 COMMONWEALTH OF PENNSYLVANIA
ORPHANS' COURT DIVISION
NO. 21-1998-0195
MOTION FOR SANCTIONS AGAINST FREDERICK E. GERBER,II
FOR FAILURE TO PRODUCE DOCUMENTS AND WITHHOLDING
OF EVIDENCE FOR THE AUDIT OF THE MILDRED J. GERBER
AND THE FRED E. GERBER, II TRUST.
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AND COMES, Marilyn Gerber, Petitioner, full beneficiary of ttj ': ~
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Fred E. Gerber,Sr. Trust and the Mildred J. Gerber Trust and the Objector 5f the
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Accountings of Frederick E. Gerber,1I filed with this Court on July 8m,2002,JJovember
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19,2002 and December 30,2002. Both Trusts are irrevocable by reason ~eath
of Fred E. Gerber,Sr. and Mildred J. Gerber and states:
1. PNC Bank in June 2002 filed a citation for the order of the Accountings of the
above stated Trust.
2. This Court ordered that the Trustee, Frederick E. Gerber,1I filed a full Accounting
of the above stated Trusts on July 8,2002.
3. On August 27,2002, PNC Bank and Marilyn Gerber, a full beneficiary of the
above stated Trusts filed their respective Objections for the above stated Trusts.
4. In November 2002, Judge Hoffer ordered an Audit and appointed Mr. William
Duncan on December 4,2002 to be the Auditor for the above stated Trusts.
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5. Due to persistent delays by the Trustee, Frederick E. Gerber,lI, discovery for
this Audit was not set until August 3,2004.
6. Frederick E. Gerber,1I was ordered by the Auditor, Mr. William Duncan to produce
the Request for Documents that Marilyn Gerber had issued to him on April 26,2004
and August 24,2004 no later than September 3,2004. ex~lutl M.~
7. Frederick E. Gerber,1I was ordered by the Auditor, Mr. William Duncan to make
himself available for deposition by Marilyn Gerber no later than October 8,2004.
8. Frederick E. Gerber through his attorney, Mr. Richard Rupp, Esquire,was to
provide and arrange for the witness of a representative of Charles Schwab as
ordered by Mr. William Duncan at the Status Conference hearings in Mr. Duncan's
office on September 20,2004.
9. Hearings for the Audit for the two above stated Trusts were scheduled on
November 15, 16, and 17,2004.
10. On September 3,2004, Frederick E. Gerber,1I sent only 20% of the Requested
Documents to the Petitioner. A large number of the receipts were redacted, blackened
out, and 89% of the receipts were not present to back up the checks written on the
Charles Schwab account for the two Trusts. Many of the checks were unreadable
as they were photocopied too dark. There were no backs of each check to verify
the depositor as was requested by the Petitioner. Frederick E. Gerber, II failed to
order this from Charles Schwab.
11. On September 3,2004, Frederick E. Gerber,1I provided the monthly statements
from the Charles Schwab account for the two Trusts but each page was three holed
punched and much of the financial figures and data was punched out and unreadable.
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Several months of the monthly statements for 2001 did not provide full monthly
statements from Charles Schwab listing the account shares owned of each
investment.
12. On September 3,2004, Frederick E. Gerber,1I failed to include any other
checking or savings account for assets held by the above stated Trusts. He failed to
account for the original funding of the two Trusts. He failed to account and prove that
the Baltimore property was indeed funded in the Fred E. Gerber,Sr. Trust. He failed
to provide copies of loan agreements and the terms of repayment. He failed to
provide correspondence between himself and PNC Bank, or any other banking
institution, or investment company or attorney. He failed to provide any documents of
correspondence regarding Marilyn Gerber and the Trusts or her financial statements
or her requests for funds. He failed to provide billable hours for the enormous
legal bills from up to 5 attorney firms for approximately $100,000. He failed to provide
receipts for all of the checks or an accounting for expenditures for himself, his children,
his sister, Jane Heflin and her children. He failed to provide copies of all of the
pleadings, correspondence between anyone that was connected to the Accountings
or the Trusts. He failed to provide the tax reports and accountant's reports and
work product for such Federal and State income tax or Trust reports. He failed to
provide copies of correspondence to attorneys, Mr. Michael Kane, Ms. Lindsay Baird,
Ms. Jacqueline Verney and these letters were not attorney -client privilege. He failed
to provide loan agreements and documents that established the creation of the Trusts
and the original funding of the Trusts. He failed to provide all documents that were
produced for the legal fees that were charged to the two Trusts such as the Petitions
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and hearings for the Guardianship of Estate and Person, and all of the documents
related to these hearings, petitions, pleadings and correspondence regarding these
two petitions and hearings. He fails to provide all of the correspondence to PNC Bank
regarding the Objections that were filed by PNC Bank and this Petitioner. He fails to
provide any of the correspondence that PNC Bank and Marilyn Gerber sent to him
regarding the Accountings or the Objections.
13. On September 3,2004, Frederick E. Gerber most strikingly FAILED to provide
any monthly statements from Charles Schwab or receipts for checks written for the
year January 1,2002 to July 8,2002. Frederick E. Gerber,lI in fact did not file the
court ordered Accounting for 2002 until December 30,2002 and then did not even
include the months August through December 2002 in an attempt to avoid scrutiny.
Mr. Rupp states that this Accounting is not part of the Court order of June 2002 by
this Court yet he fails to provide any legal premise or order by this Court.
14. EXhibitlA,J provides a full list of the missing documents requested by Frederick
E. Gerber,lI.by this Petitioner. ~lhrl7l1.f M-N
15. Frederick E. Gerber,1I retired on October 1,2004 yet would not make himself
available for a deposition for the week of October 5-8,2004 despite that he was retired
and unemployed and would not submit for a deposition as ordered by Mr. William
Duncan until October 14,2004. Frederick E. Gerber,1I provided no excuse or reason
for this delay.
16. This Petitioner requested by correspondence to Mr. Rupp that Frederick E.
Gerber bring the missing documents to his deposition as well as a copy of all
documents that he had in his possession for review as well as the ORIGINAL
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documents for this Petitioner review and verification against the copies that had been
provided to her. Frederick E. Gerber,1I showed up for his deposition late, took
frequent breaks, would not answer questions despite this Petitioner asking him the
same question 10 times; took frequent breaks to confer with his attorney; returned
from lunch late and in summary made every attempt to sabotage, delay the time,
and make a mockery of the deposition. Frederick E. Gerber,1I would demean and
harass Marilyn Gerber during the break with only his attorney present as a witness.
Frederick E. Gerber,1I would make harassing eye contact from across the table while
his attorney was sitting bedside him and the Court reporter had her eyes turned
downward. This Petitioner asked Mr. Rupp several times on the record to restrain
his witness. Frederick E. Gerber,1I would not answer the questions posed to him but
rather would take off on a speech of events that occurred between him and the
Petitioner as an attempt to essentially testify of his own free will. At many points in
the deposition, Frederick E. Gerber,1I would talk to the microphone speaking to
Mr. William Duncan saying, " Mr. Duncan, if you are listening....". Frederick E. Gerber
stated in deposition on September 27,2004 that he had been in many depositions
both private and military so that this Petitioner and this Court can make the conclusion
that he has had experience on the behavior of a deponent.
17. This Petitioner could not finish her deposition of Frederick E. Gerber,1I and only
completed one half of the questions for the Mildred J. Gerber Trust and did not even
start on questions for the Fred E. Gerber Trust. It must be mentioned that Frederick
E. Gerber,1I also had virtually no memory of his actions or behavior as Trustee for
the above stated Trusts yet he testified that he was responsible for the large
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budgets for the Department of Defense up to several hundreds of millions of dollars
and could speak about them with accuracy and total recall.
18. Frederick E. Gerber has testified under oath before the Auditor in the PNC
hearings that he has no memos, no letters of correspondence regarding the above
stated Trusts or letters of correspondence between his parents, or anyone else
regarding the two Trusts. Included in this Motion are two letters that are signed by
Frederick E. Gerber,1I EXPLICITlY stating that he has memos, and letters and that
he would reread them and return his opinions to this Petitioner and or PNC Bank.
19. Frederick E. Gerber,1I and his attorney stated on October 11,2004 and again
on October 14,2004 that they would provide the billable hours for the legal fees for
the two Trusts, all the tax reports for the two Trusts, all of the accountant's documents
for the two Trusts and that they would relook for the missing documents requested by
Marilyn Gerber. As the date of this Motion for Sanctions, Frederick E. Gerber,1I
and his attorney, Mr. Rupp have not provided any supplements but the bare bones
documents that were mailed to Marilyn Gerber on September 3,2004. exlh~rl Mtj-
20. Frederick E. Gerber,1I began to write Marilyn Gerber on October 18 and October
19 ,2004 and essentially threatened her regarding her membership as a Registered
Guardian with the National Guardianship Association. Frederick E. Gerber,1I and also
harassed this Petitioner about a letter that was sent to PNC Bank regarding a
settlement that was not connected with the upcoming hearings. Frederick E. Gerber,1I
again contacted this Petitioner directly in an attempt to harass her. Marilyn Gerber
had to write Mr. Rupp and ask him to restrain his client from directly contacting her
and stop harassing her.
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21. Frederick E. Gerber,1I consistently insists and testifies under oath that he has
produced ALL of the documents in his possession yet on October 14,2004, he and
his attorney, Mr. Richard Rupp stepped out of the conference room and walked around
to another section of the building. This Petitioner remained in the conference room
and was surprised to hear Frederick E. Gerber,1I and Mr. Rupp behind a back door
of the conference room that was slightly ajar state the following as spoken by Mr.
Rupp to Frederick E. Gerber,lI, " Fred you know that we have not given her all of the
documents, she is going somewhere with her questions." At this point, the Court
Reporter stepped into the conference room, sat down at her stenography equipment
and reached over and shut the door. This Petitioner never opened this back door or
got up from her chair.
22. Due to the lack of complete financial documents, one of Marilyn Gerber's
experts cannot fulfill his offer to prepare a report or be prepared to testify due to his
inability to make conclusions and act appropriately as an expert witness. This
Petitioner at this late date, shall not be able to find a replacement for this expert
witness. Mr. Rupp who has the advantage of having access to all of the documents
will be bringing 4 expert witnesses. Ms. Verney has not declared an intent to
bring any expert witnesses yet she has been substituted to prosecute the Objections
filed by PNC Bank.
23. For all of the above reasons, this Petitioner has filed a Petition for a Continuance
of the upcoming hearings due to insufficient documents, and inadequate documents
for her experts to prepare their reports and their testimony. Marilyn Gerber firmly
asserts that her evidence will be jeopardized by Frederick E. Gerber, II's deliberate
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and willful withholding of documents with the intent to do harm to the upcoming
hearings.
WHEREFORE, this Petitioner, Marilyn Gerber requests that this Court impose
Sanctions on Frederick E. Gerber,1I and his attorney for the following and all other
Sanctions that this Court may deem appropriate:
1. All of the costs of the deposition and the court reporting stenographer costs
from Archive Reporting for the incomplete deposition on October 14,2004 be paid
by Frederick E. Gerber,1I personally and no costs shall be paid for by any of the
Trusts.
2. All of the attorney fees that Frederick E. Gerber,1I incurred for preparation of the
deposition of Frederick E. Gerber,1I on October 14,2004 and all costs related to
purchasing the stenographer's court report of this deposition be paid by Frederick E.
Gerber,1I personally and not paid by any of the two above mentioned Trusts or Estate
of Mildred J. Gerber or Fred E. Gerber, Sr.
3. The lost salary of Marilyn Gerber for the day of the deposition on October 14,2004
and one day of preparing for the deposition on October 13,2004 for the amount of
$232.00 per day to be paid by Frederick E. Gerber,1I and not from any of the two Trusts.
4. To produce all of the missing documents that were supoened on April 26, 2004
and August 24,2004 and the promised documents that Mr. Richard Rupp, Esquire
stated that he would provide in the deposition of Frederick E. Gerber,1I and in any
letter addressed to this Petitioner or Mr. Duncan that has not been provided by
depositing them at the address of 717 Market Street, # 317, Lemoyne, PA 17103
during business hours by no later than Friday, November 12,2004 and to bring a
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copy for Marilyn Gerber at the first day of the hearings of all such missing documents
as requested by Marilyn Gerber on November 15,2004 by 09:00 a.m. in the
designated Courtroom as assigned by the Auditor for the hearings on the Accountings.
5. To order that Frederick E. Gerber, II shall not be allowed to testify in his defense
on any of the missing documents that he is ordered to produce or that Marilyn Gerber
produces on her own through extraordinary measures, investigation and all of the
costs of copying or supoening that she may incur to find these missing documents
from third parties.
6. Order Frederick E. Gerner, II to provide all the receipts and records, and
documents for the period of January 1,2002 to July 8,2002 as was ordered by this
Court in June 2002. E'Kl+te l r -K
7. Any additional costs or penalties that this Court may deem appropriate.
8. In the event that this Court needs a hearing regarding this Petition for Sanctions
the Petitioner requests that a hearing be scheduled.
Respectfully submitted,
Date: ~ hriy
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VERIFICATION
I, MARILYN GERBER, verify that the statements in the foregoing Petition for
Sanctions against Frederick E. Gerber,1I are true and correct to the best of my
knowledge, in formation and belief. Said statements are based on my own
knowledge, belief or information.
I understand that false statements herein are made subject to penalties of
18 Pa.C.S.A. # 4904 relating to unsworn falsification to authorities.
Date: ~/tJt)Lj
CERTIFICATE OF SERVICE
AND NOW, this by of November, 2004, I hereby certify that I
have served a copy of the within document on the following people by depositing
a true and correct coy of the same document on the following people by depositing
them with the US Post Office, postage, repaid, addressed to:
Mr. Richard Rupp, Esquire
355 North 21st Street
Camp Hill, PA 17011
Ms. Jacqueline Verney, Esquire
44 S Hanover Street
Carlisle, PA 17103
Mr. William Duncan,Esquire
One Irvine Row
Carlisle, PA 17103
Date: ~;;'d;j()<I
04/.23/02 1~:39 FAX 717 232 1459 RHOADS&SINON LLP ~UUJ
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COLONEL FREDERICK E. GERBER
DIRECTOR. HEALTH CARE OPERATIONS
HEADqUARTERS. DEPARTEMENT OF THE ARMY
OFFICE OF THE SURGEON GENERAL
PACSIMILE TRANSMITTAL SHEET
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5111 LEESBURG PIKE
SKYLINE 4. SUITE 401 PNC01552
FALLS CHURCH. VA 22041-:\lOIliR ezJI1~{ I- /
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Wednesday, September 01, 20048:45 AM Frederick E. Gerber iI (703) 219.2039 p.01
FREDERICK E. GERBER II
FACSIMILI! TRANSMITTAL SHI!I!T
TO, FROM
Marilyn Gerber COL Frederick E. Gerner
COMPANY DATE:
9/1/2004
l'AXNt1~~!I.: "totAL NO. Olf I'AG~S INCLUDING co~Jt
Y'HON!! NUMBER SBNDE]\'!S REFERENCE NUMBElt
FE: YOUR REFERENCE NUMBER:
Response to
CI URGENT (iJ FOR REVIEW C PLEASE COMMENT CI PLEASE REPLY CJ PLEASE RECYCLE
NOTES/CO}.1J.fENTS
I. Rocoivoo your FAX. ,,,,,iloo 26 .uo 29 Ang 04.
2. A11s1x beneficiaries are seriously interested in negotiating So peaceful settlement with you Marilyn.
3, I h.ve con!:9.cted Fich.rd Rupp .bout meeting the teollS of producing the documents you reque'ted,
We will meet the teaniil of Auilitor DWICg.(l'll request. nu:ellteru.ng me with SllUlCti01'1S: JUlU more COl.u:t
orders for contempt won~t make me wade :any harder.
4. I find dIe FAX to be.n ilCceprab1e method of COtnOlluliwingwidl you Mori!y", I've had to chonge my
munber twice over lhe yeats and don'tw::lnt to put my fa.mi1y through thatvrocess avin. My FA."X. is on
24/7 and I will re'pond with .ppropriate attention to your mail. J.ne make, her OWlI deci,iollS '.bout
t.akingphone calls from you.
5, Reference your 8 p.ge proposal. MlIrilY1~ I .m prepared to defend my acnons '" executor!t1,,,tee of
Mom .nd D.d's ilCC<>IUlts. You are one benefici.ry of seven opposed to eVelything l've done. We were
interested in iii. fair anu final settlement with you to prevent a large sum of the remaining estate from going
to lawye", Again. we're llU seriol" llbout ,ecrlillg the,e mattel1. .1I0wUlg Auditor DUllC:lt1 to lldiudic..te
everything lUld accept hi, deci.ions.. ..aving all the 1ego.! fee. as you've pointed out.
6. Re Mom's pe"olwl property. I'm rereading mom's Will 9I1d will give you my impression a litde bit later
:ltld inc1udeJ9I1e', dlOUghts widl mine, I recall you '"l'ingyou would provide me . list of die items you
wMlted from Mom's be1ongins? None of your parg,graphii mentioned the silver, stamp collection, wedding
dress, pe"onal item, YOll mentioned h.ving in your posses,ion" .wha(, die pIon for d",e items?
7. Dad', Trust. I will reread Dad'. trust. Dad spoke to me, I .poke with Dad'. lawyers lUld have al'retty
good id..1. how it W"' to be used .nd obviously differenrly dl:ltl YOll im.gined, Monie, di,tributed to dIe
grandchildren, benefici.ries al,o, for education. . .I'm not 'ure I agree widl your e,timation of reimbl111ing
you for those amounts. Marilyn, it's evident you wanted. to be the executor/trustee and nothing I oid or
could have done wOldd have been acceptable to you. We may h.ve to agree to disagree on how rhe Trusts
were lIWaged.
8. Mom', Trust, I will reread Mom', Tu"t .nd review all my 1ettel1 .nd corre'pondence widl Mom .bout
lllll11ai9ngher e,tate I will a1.0 coo.u1tJlUle I'm not ,ure I'm going to submit all legal bill. to you for your
,/;! pproval.. you .tateu
- ? 9. I guess in sutll1rulrv. I'm going to review all of Dad :ltld Mom's Tu"ts, Will,. lette" and
correspondence and get back to you. But frmkly it doesn't appear to me you're interested in R quick,
painless, legal free secdemem.
t:J:zth fb{ I t. ~
August 24,2004
Frederick E. Gerber,lI
Richard Rupp, Esquire
255 North 21 st Street
Camp Hill, PA. 17011
Dear Richard:
I am enclosing a copy of my original request to produce documents dated April
26,2004, During the hearing with William Duncan on August 3,2004, it was decided
that your client, Frederick E. Gerber,lI would prOduce my original supoena for the
prOduction of documents. As Fred is a party to this case, it does not require me to
serve him by supoena.
I am therefore resubmitting the first Request for the Production of Documents that /s
dated, April 26,2004 to you for your answer by September 3,2004 as scheduled by
William Duncan.
I am also submitting a Second Request for Production of Documents with
additional requests and I have summarized my request of documents which ,
requested in the April 26, 2004 so as to be very clear and specific as to what I am
requesting.
Fred has told me via telephone that he has all of the documents in four binders and
ready for my review. I am not sure if he is referring to one binder for each year which
would only mean accounting documents from 1998 to 2001. Fred has not complied
with the Court's original request for accounting including 2002 which would have been
up to July 8,2002. Will Fred produce this accounting and the documents?
I will require viewing the original documents against any copy of documents which
are submitted to me. To accomplish this I shall have to come to your office and review
the original document against each copy of a document. Your client is required to
produce these documents by September 3,2004, I can come into your office on
August 3O,September 2 or September 3. I would be in your office at approximately
0930AM and stay until I complete the review of the original docum",nts.
In an attempt to prevent any surprises for the copying of documents, if your client is
going to charge me for the prOduction of documents, I shall expect that the copying
charges shall be within the range of legal copying charges which is approximately
12 cents which is what PNC charged me for my request for documents. If you intend
to charge something different and above this cost, please inform me as I have the right
to have the or/ginal documents identified and sent out to a professional legal
document copying service at a reasonable rate.
If you have any questions, please feel free to call me at 717 503-5280 as time /s
short.
If Fred and I should arrive at an arbitration agreement prior to September 3,2004,
then a new schedule for the production of documents and depositions shall be
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established by William Duncan. Fred waited 15 days before he responded to the
arbitration discussions of August 3,2004,thereby eating up time of discovery. We will
have to continue on the schedule William Duncan established on August 3,2004 for
discovery and deposition,
Sincerely, /kk
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Marilyn Gerber