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Created: 9/20/04 0: 06PM
Revised 1/25/08 1 I lOAM
11145.2
George B. Faller, Jr., Esquire
J.D. No. 49813
MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER
MARTSON LAW OFFICES
10 East High Street
Carlisle, P A 17013
(717) 243-3341,~
Attorneys for Robert G. Frey, Executor ofthe Estate of Linwood B. Phillips, Jr.
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IN RE: : IN THE COURT OF COMMON PLEAS OF
EST A TE OF LINWOOD B. PHILLIPS, JR.,: CUMBERLAND COUNTY, PENNSYLVANIA
NO. 21-06-0122
ORPHANS' COURT DIVISION
RESPONDENT'S RESPONSE TO PETITIONER'S MOTION IN LIMINE
AND NOW, comes Respondent, Robert G. Frey, Executor of the Estate of Linwood B.
Phillips, Jr., by and through its attorneys, MARTS ON DEARDORFF WILLIAMS OTTO GILROY
& FALLER, and hereby files this Response to Petitioner's Motion in Limine, as follows:
1. Admi tted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Admitted.
6. Denied. To the contrary, Mr. Henneman's actions speak: for themselves but certainly
do not constitute formal or informal discovery.
7. Admi tted.
8. Admitted. With further admission that the parties agreed that Petitioner was not
waiving any privilege including attorney-client privilege or work product privilege.
9. Admitted that Petitioner avers that the actions of the private investigator are
discovery. However, Petitioner is wrong. Petitioner's testimony is barred by the Dead Man's Act.
10. Admitted.
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11. Admitted.
12. The averments of this paragraph are conclusion of law to which no response is
required.
13. Denied. To the contrary, neither Robert G. Frey nor his counsel have conducted any
discovery in the present case.
14. Denied. To the contrary, the Pennsylvania Superior Court in In re Hartman, 582 A.2d
648 (1990) held that the Dead Man's Act precludes testimony by the surviving spouse against
antenuptial agreements despite the provisions of Section 2209 of the Probate Code.
15. Denied. To the contrary, the Pennsylvania Superior Court in In re Hartman,S 82 A.2d
648 (1990) held that the Dead Man's Act precludes testimony by the surviving spouse against
antenuptial agreements despite the provisions of Section 2209 of the Probate Code.
WHEREFORE, Robert G. Frey, Executor for the Estate of Linwood B. Phillips, Jr.,
respectfully requests that this Court dismiss the Petitioner's Notice of Intention to Take an Elective
Share.
Respectfully Submitted,
By:
George B. Faller,' r., Esquire
J.D. No. 49813
10 East High Street
Carlisle, P A 17013
(717) 243-3341
Date: January 25,2008
Attorneys for Robert Frey, Executor of the Estate
of Linwood B. Phillips, Jr.
..
CERTIFICATE OF SERVICE
I, Melissa A. Scholly, an authorized agent of Marts on Law Offices, hereby certify that a copy
of the foregoing Respondent's Response to Petitioner's Motion in Limine was served this date by
depositing same in the Post Office at Carlisle, P A, first class mail, postage prepaid, addressed as
follows:
Neil Warner Yahn, Esquire
JAMES, SMITH, DIETTRICK & CONNELLY, LLP
P.O. Box 650
Hershey, P A 17033
Hubert X. Gilroy, Esquire
MARTSON LAW OFFICES
10 East High Street
Carlisle, P A 17013
MARTSON LAW OFFICES
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By / / ~
Melissa A. Scholly
Ten East High Street
Carlisle, P A 17013
(717) 243-3341
Dated: January 25,2008