HomeMy WebLinkAbout02-16-01 (5)
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 ll, TRUSTEE
Defendant
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Civil Action-E-qu\ty
ORDER
AND NOW, this I 't' day of I"d...Z ' 2001, upon
consideration of Defendant's Motion to Dismiss and PlaintiffM lyn 1. Gerber's Answer thereto,
it is hereby ordered that:
1. Plaintiff's Petition for Accounting is transferred from the Court of Common Pleas of
Cumberland County, Equity Division to the Court of Common Pleas of Cumberland County,
Orphan's Court Division.
2. The Prothonotary of the Cumberland County Court of Common Pleas is directed to
transfer the file in this case to the Clerk of the Orphan's Court, Register of Wills and provide a
new docket number.
3. The filing date of the Petition for Accounting shall remain November 3, 2000 for all
purposes
4. The Court's Order of January 22,2001 is vacated in so far as it ordered argument on
Defendant's Motion to Dismiss before the Court on March 26, 2001 at 11: 15 a.m. and
depositions within 45 days of January 22, 2001.
5. Defendant's Motion to Dismiss Action is Denied as Moot.
6. A copy ofthis Order shall be served on all Parties.
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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 ll, TRUSTEE
Defendant
Civil Action-Equity
PLAINTIFF MARILYN F. GERBER'S ANSWER TO
DEFENDANT'S MOTION TO DISMISS ACTION AND NEW MATTER
AND NOW, Plaintiff Marilyn 1. Gerber, through her attorney Michael 1. Kane,
respectfully submits this answer to Defendant's Motion to Dismiss.
1. Admitted
2. Admitted
3. Admitted that Defendant filed an answer to Plaintiff's Petition on November 20,2000
and averred, inter alia, that the requested relief of an accounting was accomplished. Denied that
the requested relief of an accounting was, in fact, accomplished.
4. Plaintiff has no basis to either admit or deny Defendant's presumption. To the extent
that Defendant avers that Plaintiff somehow contributed to that presumption, the averment is
denied.
5. Admitted that Plaintiff is seeking discovery of further information
6. Admitted that Plaintiff filed the action in the wrong division of the Court of Common
Pleas.
NEW MATTER
8. 42 Pa.C.S. ~ 5103(c): provides:
If an appeal or other matter is taken to, brought in or transferred to
a division of a court to which such matter is not allocated by law,
the court shall not quash such appeal or dismiss the matter, but shall
transfer the record thereof to the proper division of the court,
where the appeal or other matter shall be treated as if originally
filed in the transferee division on the date first filed in a court or
magisterial district.
9. The remedy of42 Pa.C.S. ~ 5103(c) is mandatory.
10. The proper remedy to Plaintiff's Motion is for the court to transfer the matter to the
Court of Common Pleas, Orphan's Court Division and not dismissal. In re Estate of Cantor, 424
Pa. Super 24,621 A.2d 1021 (1993).
WHEREFORE, Plaintiff Marilyn 1. Gerber respectfully requests that the court:
1. Order that the matter be transferred from the Court of Common Pleas, Equity Division
to the Court of Common Pleas, Orphan's Court Division.
2. Direct the Prothonotary of Cumberland County to transfer the file to the Clerk of the
Orphan's Court, Register of Wills.
3. Vacate the Court's Order of January 22, 2001 that Plaintiff's Motion to Dismiss be
argued on March 26, 2001.
4. Enter an Order Denying Defendant's Motion to Dismiss as Moot
Respectfully submitted,
Mi~~O. 46215
Kane and Mackin, LLP
3300 Trindle Rd.
Camp Hill, PA 17011
(717) 214-3700
Attorney for Plaintiff Marilyn 1. Gerber
CERTIFICATE OF SERVICE
I, Michael 1. Kane, do hereby certifY that, on the 31 st day of January, 2001, I placed a true
and correct copy of
Plaintiff Marilyn J. Gerber's Answer to Defendant's Motion to Dismiss Action and New Matter
in the United States Mail, first class postage prepaid, and addressed to:
Lindsay Dare Baird, Esquire
37 S. Hanover St.
Carlisle, P A 17013
Attorney for Defendant
Jacqueline M. Verner, Esquire
44 South Hanover St.
Carlisle, P A 17013
Attorney for Plaintiff Mildred J. Gerber
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Michael 1. Kane