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HomeMy WebLinkAbout03-30-01 MILDRED J. GERBER and MARILYN J. GERBER, Plaintiffs THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS COURT DIVISION vs. NO. 21 - 2001 - 189 FRED E. GERBER II, TRUSTEE Defendant MOTION TO COMPEL DISCOVERY AND FOR SANCTIONS AND NOW, Plaintiff Marilyn J. Gerber, through her attorney, Michael J. Kane, moves this Honorable Court for an order directing Defendant to respond to Plaintiff's First Request for Production of Documents, and states in support thereof: 1. This matter involves a Complaint for accounting involving the Fred E. Gerber Trust. 2. Undersigned Plaintiff's counsel served Plaintiff's First Request for Production of Documents on Defendant on December 12, 2000. (Copy Attached Exhibit A) 3. As of February 21,2001, Defendant had not served a response or requested additional time. 4. On February 21,2001, Plaintiff's counsel spoke to Defendant's counsel advising that the answers were overdue and that Plaintiff would seek to compel the service of answers if they were not received. 5. Defendant's counsel advised that she would discuss the matter with her client and secure the documents forthwith. 6. As of March 12,2001, Plaintiff's counsel had received no response. 7. On March 12,2001, Plaintiff's counsel sent Defendant's counsel a letter, notifYing her that he would seek an order to compel from the court if the Documents Production Request was not complied with by March 16, 2001. 8. On March 16,2001, Plaintiff's counsel received a telephone call from Mr. Herbert Rupp, Esq. who stated that he had been asked to assist Defendant's counsel with complying with the request for production. 9. Mr. Rupp requested additional time to comply with the request and Plaintiff's counsel agreed to extend the deadline to March 23, 2001. 10. On March 23, Plaintiff's attorney was served with an accounting of the subject trust for the years 1998 and 1999. 11. Other than the partial accounting, Defendant has failed to provide any documents requested. WHEREFORE, Plaintiff respectfully request that this Honorable Court. 1. Order Defendant to comply with the Request for production of Documents. 2. Order Defendant pay costs and reasonable attorney's fees associated with the preparation and filing of this motion. Respectfully submitted, ~~ Michael 1. Kane ego No. 46215 Kane and Mackin, LLP 3300 Toodle Rd. Camp Hill, PA 17011 (717) 214-3700 Attorney for Plaintiff MILDRED J. GERBER and MARILYN J. GERBER, Plaintiffs THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS COURT DIVISION vs. NO. 00-7831 Equity FRED E. GERBER II, TRUSTEE Defendant CIVIL ACTION- EQUITY PLAINTIFF MARILYN J. GERBER'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO DEFENDANT AND NOW, Plaintiff, Marilyn 1. Gerber, pursuant to Pa.R.c.P. 4009.1, requests the production of documents and things as hereinafter described, within thirty days of service of this request, in the manner prescribed by Pa.R.C.P. 4009.12. I.. Definitions: As used in this request, the following meanings shall apply: ''Document'' includes writings, drawings, graphs, charts, photographs, electronically created data, and other compilations of data from which information can be obtained, translated if necessary through detection or recovery devices into reasonably usable form. "Financial Statements" include any data compilation prepared by a bank, credit union, savings bank, savings and loan, brokerage house, investment firm, stock or mutual fund of any sort or other institution or firm which contains or reflects information regarding deposits, withdrawals, debits, credits, transfers, assessments or any other financial transaction. "The Trust" means the trust established by Fred E. Gerber, deceased, on July 29, 1994, and referred to in Plaintiff's Petition for Accounting and Defendant's Answer thereto. "The Trustee" means the Defendant. II. Documents to be produced or made available for copying and inspection: 1. All Financial Statements which reflect any transactions involving trust funds or assets which are, or were at any time after July 29, 1994, held or possessed by the trust. 2. All documents pertaining to any loans made by the trustee or anyone else, from trust funds of assets or using trust funds or assets or which pledged any trust funds or assets as collateral or other security, including, but not limited to: A. Any loan Application, whether formal and informal, or correspondence requesting a loan; B. Any financial disclosures or other documents of any kind, submitted by or on behalf ofthe loan recipient, or any obligor, for the purpose of securing or extending a loan. C. All documents relied upon by the trustee in making the decision to grant a loan, or submitted to the trustee for the purpose of inducing or supporting a loan; D. Any documents reflecting forgiveness of any loan; E. Any instruments created evidencing any loan or the terms of any loan. 3. Copies of all deposit slips and cancelled checks, drafts or debit reports or other instruments created or used to draw or transfer funds or other assets from the trust. 4. Any register maintained by the trustee or anyone, reflecting any transaction involving trust funds of assets, including but not limited to check or draft registers and the like. 5. Any document submitted to or considered by the trustee requesting the disbursement of trust funds or assets. 6. All receipts for any purchase(s) made by the trustee using any trust funds or assets. 7. Any correspondence from any individual, financial institution or other entity, the subject of which concerns trust funds or assets. Respectfully submitted, Michael J. Kane Registration No. 46215 Kane and Mackin, LLP 3300 Trindle Rd. Camp Hill, PA 17011-4432 (717) 214-3700 Attorney for Marilyn J. Gerber Date: CERTIFICATE OF SERVICE I, Michael 1. Kane, do hereby certify that, on the ~<?rJ. day of \~o.t... I placed a true and correct copy of Motion to Compel Discovery and for Sanctions in the United States Mail, first class postage prepaid, and addressed to: Lindsay Dare Baird, Esquire 37 S. Hanover St. Carlisle, P A 17013 ~~~r~ Michael 1. Kane , 2001