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HomeMy WebLinkAbout03-04-08 Bruce G. Baron, Esquire Attorney I.D. No. 28090 Capozzi & Associates, P.C. 2933 North Front Street Harrisburg, PA 17110-1250 Telephone: 717-233-4101 FAX: 717-233-4103 Attorneys for Respondent EST ATE OF BETTY R. V ALENCIK : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYL VANIA : ORPHANS' COURT DIVISION CHESTER L. V ALENCIK, JR., : No. 21-08-0120 Petitioner, TROY A. V ALENCIK, . () Respondent. ANSWER TO RULE TO SHOW CAUSE TO THE HONORABLE JUDGE OF SAID COURT: Respondent, Troy A. Va1encik, by and through his attorneys, CAPOZZI & ASSOCIATES, P.c., files this Answer to the Rule to Show Cause entered by the Court on February 6,2008; and, for the cause discussed below and in Petitioner's prior filed Petition to Dismiss this matter, which is incorporated by reference and as to which the COUli, on February 14,2008, entered a Rule upon Petitioner returnable on or before March 6, 2008, states that the Petition to Enforce Power of Attorney filed in this matter should be dismissed, the relief requested therein not granted, and the Rule entered upon Respondent discharged. A proposed form of Order is attached. 2 ~.,:') . ,.._) r', ... G ) There is good cause not to grant the relief requested in the Petition referenced in the Rule to Show Cause because: 1. Since the date on which Respondent filed his Petition to Dismiss in this matter, Respondent has not been served with any pleading filed in the Columbia County Court of Common Pleas in the matter pending before that Court objecting to the jurisdiction of that Court over the matter filed with that Court by Respondent herein. 2. On February 15,2008, the Columbia County Court of Common Pleas held a prehearing that included counsel for Petitioner and Respondent in this matter; and, scheduled a hearing on the jurisdiction of the Columbia County Court of Common Pleas as to the prior filed matter before it, which hearing is scheduled for Friday, February 29,2008, in Bloomsburg, Pennsylvania. A copy of the Order scheduling such hearing is attached as Exhibit A. 3. As to allegations of the Petition, Respondent answers that: (a) Para.!:,Traph I is denied. Betty R. Valencik resides at 73 Lick Run Road, Catawissa, Columbia County, Pennsylvania, which is her home of many years, the property she, as Settlor of the Valencik Family Irrevocable Trust, transferred to that Trust, subject to her lifelong rights to its use and enjoyment, and to which Petitioner returned her to live under Respondent's care on December 7,2007, pursuant to her expressed wishes and with Petitioner's intention, expressed to Respondent and to others, that she would never again reside with him at his home. Betty R. Valencik receives her mail at 73 Lick Run Road, 3 Catawissa, Pennsylvania, including mail from friends living in Cumberland County, Pennsylvania. Betty R. Valencik receives her medical care in Columbia County, Pennsylvania. Petitioner and his wife notified the home health insurance carrier for Betty R. Valencik that she is receiving her care in Columbia County, Pennsylvania. Betty R. Valencik receives services from the Columbia-Montour Area Agency on Aging, headquartered in Bloomsburg, Columbia County, Pennsylvania. While Respondent agrees that Betty R. Valencik is presently incapacitated and has filed to have a Guardian appointed for her by the Columbia County Court of Common Pleas, Respondent denies that she was not competent to detenuine where she wished to live on December 7,2007 or that she was incapacitated prior to her medical evaluation of December 20,2007. (b) Paragraph 2 is admitted. (c) Para!,>raph 3 is admitted. (d) Para!,>raph 4 is admitted. (e) Paragraph 5 is admitted. (f) Paragraph 6 is admitted; however, Betty R. Valencik later executed a revocation of Petitioner's authority and the matter before the Columbia County Court of Common Pleas seeks the appointment of a Guardian for Betty R. Valencik and continuation of the revocation of Petitioner's Power of Attorney. 4 (g) Paragraph 7 is denied. Betty R. Valencik was taken to Petitioner's house for recovery because of her health after she received care in Columbia County, Pennsylvania, because Petitioner believed at that time that she could not live independently at her home in Columbia County. (h) Paragraph 8 is admitted. (i) Paragraph 9 is admitted. U) Paragraph 10 is admitted in part and denied in part. It is admitted that Respondent is currently living at 73 Lick Run Road, Catawissa, Columbia County, Pennsylvania; that legal title to that property has been transferred to the Valencik Family Irrevocable Trust; and, that Respondent is paying some of the costs of his use of the property. Otherwise denied. Respondent has not signed any lease with the Trust and, after requesting a copy of the Trust, has not received a copy of the Trust instrument so as to have knowledge of his rights or those of anyone else under the Trust, including his rights as the caregiver for Betty R. Valencik at such property. It is admitted that Betty R. Valencik in the Settlor of the Trust. (k) Paragraph 11 is admitted in part and denied in part. It is admitted that Betty R. Valencik has lived at the Farm for most of her adult life and that she was moved to Petitioner's home for health reasons in 2006 because Petitioner did not believe at that time that she could live independently at the Fann. Otherwise denied. 5 (1) Paragraph 12 is admitted in part and denied in part. It is denied that Betty R. Valencik relocated to Petitioner's residence. Otherwise, admitted. Respondent notes that Petitioner obtained care for Betty R. Va1encik at this time not at a facility in Cumberland County, but at a facility near to her home at the Farm. (m) Paragraph 13 is admitted in part and denied in part. Respondent is without sufficient information to admit or denied the allegations of the reasons for the admission and therefore denies the allegation. Otherwise, admitted. Respondent notes that Petitioner obtained care for Betty R. Valencik at this time not at a facility in Cumberland County, but at a facility near to her home at the Farm. (n) Paragraph 14 is admitted. (0) Paragraph 15 is admitted. Respondent notes that Petitioner obtained care for Betty R. Valencik at this time not at facilities in Cumberland County, but at facilities near to her home at the Fann. (p) Paragraph 16 is admitted. (q) Paragraph 17 is admitted. (r) Paragraph 18 is admitted. (s) Paragraph 19 is admitted. (t) Paragraph 20 is admitted in part and denied in part. It is admitted that Betty R. Valencik received "in home care" while staying with Petitioner. It is denied that the care received "triggered" the insurance coverage referred to because Petitioner and his wife never filed the 6 documentation required for the insurance coverage to be "triggered" and have failed to do so to date, thereby denying and continuing to deny Betty R. Valencik the insurance coverage she paid for and requiring her further expense for substitute care. (u) Paragraph 21 is admitted in part and denied in part. Respondent is without sufficient information to admit or deny the allegations as to the condition, behavior, or causes thereof as to Betty R. Valencik and there is no documentation from Dr. Sheehe as to such attached to the Petition, and they are therefore denied. It is admitted that Dr. Sheehe continued to be her physician at this time; and, Respondent notes that her physician continued to be her physician in Catawissa and Columbia County, where Dr. Sheehe's practice is located, and not a physician practicing in Cumberland County. (v) Paragraph 22 is admitted in part and denied. It is denied that Betty R. Valencik began to fixate on returning to the Fann around November 2007, since she has continually expressed the desire to live at the Fann. Admitted that Petitioner traveled with Betty R. Valencik to the Fann on December 7, 2007 and left her there in the care of Respondent on that date. Otherwise denied for the reasons stated in Respondent's Petition before the Columbia County Court of Common Pleas, which is attached to Respondent's Motion to Dismiss in this matter and is hereby incorporated by reference. Petitioner transported Betty R. Valencik to the Farm on December 7,2007, with the desire and intent 7 to transfer her care to Respondent and to never have her return to live with him and his wife at their residence again, which desire and intent he expressed to Respondent and others. Petitioner and his wife advised the home health insurance carrier that the care of Betty R. Valencik was no longer in their hands and had been transferred to others, namely to Rhonda Goodreau Kahle, a friend of Respondent, who was then living at the Fann and has been a caregiver for Betty R. Valencik there ever since. When Petitioner transported Betty R. Valencik to the Farm on December 7,2007, he also delivered into the care of Rhonda Goodreau Kahle for Betty R. Valencik's use two (2) months supplies of four (4) medications prescribed for Betty R. Valencik and ti1led in mail in refill orders for those medications to be sent in when those supplies later began to run low. Petitioner repeatedly has threatened Betty R. Valencik with being "put in a home" ifher care at the Fann with Respondent does not work out. (w) Paragraph 23 is denied. Petitioner advised Respondent and others that Betty R. Valencik would never return to his residence and that his wife would provide Respondent with infonnation about the medications and others requirements for Respondent to provide care for Betty R. Valencik. Petitioner and his wife advised the home health insurance carrier that the care of Betty R. Valencik was no longer in their hands and had been transferred to others. Petitioner advised Respondent's friend Rhonda Goodreau Kahle that she was to handle the finances for 8 Betty R. Valencik and provided her with infonnation about such finances. Petitioner also advised Respondent and Rhonda Goodreau Kahle that Petitioner would be retuming the following Thursday, December 13, 2007, with the clothing and personal effects of Betty R. Valencik and the car registered in the name of her late husband, because his wife, Linda D. Valencik, had off from work that day and could assist him; however, Petitioner has never brought up either the car or the clothing and personal effects of Betty R. Valencik. (x) Paragraph 24 is denied. Respondent has insufficient infonnation to admit or deny the allegation, and it is therefore denied. (y) Paragraph 25 is admitted in part and denied in part. It is admitted that Respondent told Petitioner that Betty R. Valencik wished to stay at the Fann. It is denied that Respondent told Petitioner that Petitioner was not pennitted to see his mother. Otherwise, denied. (z) Paragraph 26 is denied. The referenced letter is attached to the Petition and speaks for itself. (aa) Paragraph 27 is denied. Respondent does not exhibit "cavalier behavior" and his efforts to protect and defend his grandmother under the facts as alleged in the Petition before the Columbia County Court of Common Pleas are what should be expected from a grandson in whom Betty R. Valencik vested her appointment as the Executor of her Estate and as her altemate Power of Attomey to act on her behalf. 9 (bb) Paragraph 28 is admitted in part and denied in part. Since there is no psychiatric assessment attached to the Petition that deals with the capacity of Betty R. Valencik to revoke the Power of Attorney prior to December 20,2007, Respondent lack sufficient infonnation to admit or deny any allegations as to her condition prior to that date, and such allegations are therefore denied. It is admitted that Exhibit C is the assessment of Dr. Sheehe, her family physician, dated December 20, 2007, which was done at the request of Petitioner and his counsel. (cc) Paragraph 29 is admitted in part and denied in part. It is admitted that Exhibit C is the assessment of Dr. Sheehe, her family physician, dated December 20, 2007, which was done at the request of Petitioner and his counsel. Otherwise denied as the assessment speaks for itself (dd) Paragraph 30 is denied as the assessment speaks for itself and makes no statement concerning her capacity to detennine whether to revoke his Power of Attorney given to Petitioner. (ee) Paragraph 31 is denied. Exhibit C makes no such prescription and Dr. Sheehe has continued to support and prescribe "in home care" at the Fann for Betty R. Valencik. On infonnation and belief, Petitioner has made no effort to detennine whether Betty R. Valencik could be cared for at her home at the Fann and whether home care at the Fann would be more beneficial to her overall quality oflife. Petitioner has instead continued to deny his mother access to and use of her own clothing and personal effects which he retains at his residence, causing her 10 additional distress and uncertainty, even after advising Respondent that these items would be returned to her and after requests from Respondent's attorney to Petitioner's attorney for assistance with getting them for Betty R. Valencik's use. (ft) Paragraph 32 is denied. The Court is without jurisdiction to address this matter since it is already before the Columbia County Court of Common Pleas. It is denied that Betty R. Valencik was without sufficient capacity to detennine whether or not to pennit Petitioner to continue as her Power of Attorney and, for the reasons stated in the Petition before the Columbia County Court of Common Pleas, Respondent alleges that Petitioner has withdrawn as or otherwise disqualified himself to so act; that Petitioner's wife, Linda D. Valencik, has also withdrawn; and, that Respondent, either a Guardian or Respondent as substitute Power of Attorney for Betty R. Valencik, be authorized to continue to act on her behalf. (gg) Paragraph 33 is denied. Petitioner has been acting as Power of Attorney on behalf of Betty R. Valencik, as alleged in the Petition before the Columbia County Court of Common Pleas, including prior fonns of Power of Attorney, at least since the death of his father on May 4, 2004. It is denied that the summary attached by Petitioner represents all of his transactions on behalf on Betty R. Valencik as her Power of Attorney. Respondent has insufficient infonnation about all of the transactions made by Petitioner as Power of Attorney on behalf 11 of Betty R. Valencik, including those that Petitioner has stated to Respondent are hidden away in places where no one can find them, those in which Petitioner arranged tor transactions on behalf of Betty R. Valencik but for his own benefit, and those referred to by Petitioner in conversations with Respondent in which Petitioner stated he would agree to Respondent acting as Power of Attorney on behalf of Betty R. Valencik if Respondent would "call of the dogs." In addition, Respondent has insufficient infonnation about funds of Betty R. Valencik that Petitioner may have transferred or had Betty R. Valencik transfer into the Valencik Family Irrevocable Trust and his management of such funds on her behalf as the Trustee of that Trust. (hh) Paragraph 34 is admitted. A copy of such Petition is attached to Respondent's Petition to Dismiss in this matter and incorporated by reference. (ii) Paragraph 35 is denied. The jurisdiction of the Columbia County Court of Common Pleas is proper and exclusive and based on the residence of Betty R. Valencik in Columbia County, as further supported in Respondent's Petition to Dismiss tiled in this matter, which is incorporated by reference; and, further, it includes jurisdiction over the issues raised in Petitioner's claims before this Court. (jj) Parat,Tfaph 36 is denied. Since the jurisdiction of the Columbia County Court of Common Pleas is proper and encompasses all issues included 12 in Petitioner's claims before this Court, neither venue nor jurisdiction over those claims is appropriate in this judicial district as supported in Respondent's Petition to Dismiss filed in this matter, which is incorporated by reference. (kk) Paragraph 37 is denied. Respondent's Petition before the Columbia County Court of Common Pleas, which is attached to his Petition to Dismiss in this matter and incorporated by reference, speaks for itself The incapacity of Betty R. Valencik requiring the appointment of a Guardian is supported by an assessment dated December 20, 2007, which is after the date of her revocation of Petitioner's Power of Attorney. (II) Paragraph 38 is admitted in part and denied in part. It is admitted that, during the prehearing conference before the Columbia County Court of Common Pleas on February 15,2008, Petitioner's attorneys discussed objections to that Court's jurisdiction and showed that they had prepared an Objection to file with that Court, that Respondent's attorney provided Judge James with a copy of the pleadings filed in this matter, including the Rule to Show Cause issued on February 6, 2008 and Petitioner's allegations of objections to jurisdiction; that, to date, Petitioner has not filed any pleading in the Columbia County matter objecting to the jurisdiction of that Court; and, that Judge James has scheduled a hearing on February 29,2008 on the jurisdiction of the Columbia County Court of Common Pleas over Respondent's Petition 13 tiled in that Court. It is further denied that the statute cited supports Petitioner's claim oflack of jurisdiction in the Columbia County Court of Common PIcas for the reasons stated in Respondent's Petition to Dismiss tiled in this action and because the matter before the Columbia County Court of Common Pleas also involves the removal of Petitioner as Trustee of the Valencik Family Irrevocable Trust which has its situs in Columbia County. (mm) No response is required for Paragraph 39. Respondent has tiled his Petition to Dismiss seeking the dismissal of the Petition to Enforce on the grounds that this Court lacks jurisdiction to provide relief in this matter because of the prior existing jurisdiction over all related claims in the Columbia County Court of Common Pleas in the matter currently before Judge James. 14 WHEREFORE, Respondent requests that this Court DISCHARGE the Rule to Show Cause, schedule a Status Conference to consider what further action may be appropriate in this matter to be held after February 29,2008, and to dismiss the Petition to Enforce as requested in Respondent's Petition to Dismiss. Respectfully submitted, ~/af' --Ii ~flo-- DATE: FEB. 25, 2008 Bruce G. Baron, Esquire Attorney 1.0. No. 28090 CAPOZZI & ASSOCIATES, P.C. 2933 North Front Street Harrisburg, PAl 7110-1250 Telephone: 717-233-4101 FAX: 717-233-4103 Email: BruceB(Zi)CapozziAssociates.com [Attorneys for Respondent] 15 IN THE COURT OF COMMON PLEAS OF THE 26TH JUDICIAL DISTRICT PENNSYLVANIA IN RE: BETTY R. VALENCIK COLUMBIA COUNTY CASE NO: 04-0C-08 CIVIL ACTION LAW ORPHANS' COURT DIVISION ~BRUCE G. BARON, ESQUIRE, ATTORNEY FOR PETITIONER NEIL W. YAHN, ESQUIRE; EDWARD P. SEEBER, ESQUIRE, ATTORNEYS' FOR RESPONDENTS ORDER OF COURT AND NOW, this 15th day of February it is Ordered that a hearing regarding the guardianship of the above captioned case be held on Friday the 29th day of February, 2008 at 11:00 o'clock A. M. in Courtroom 2 of the Columbia County Gourthouse, Bloomsburg, Pennsylvania before the Honorable L.() W...--=: ~a... rr:: ~ <i Tllom~~p. James, Jr. nJl ?c; .~ .<<' ,...:: J:i-_ CT .::;- c; BY THE COURT: I~._---, eCl LL.J w- 'nL. ::- _J. c:::> c.c:> = "-, :.-"'Z ..:J C:.; '_.,) L~ J. JR. EXHIBIT c: iZ' (1g..f fJinf: ,fb4 he --;fr ~ I A Received: Feb 25 2008 12:46pm VERIFICATION I, TROY A. VALENCIK, verify that the facts set forth in the foregoing Answer to Rule to Show Cause are true and (;on-ect to the best of my knowledge, information, ~lDd belief. I understand that fals.e statements herein are made subject to the penalties of 18 Pa. C.S. ~ 4904, relating to unsworn falsification to authorities. ~4!i/!f DATE: February 25, 2008 Bruce G. Baron, Esquire Attorney 1.0. No. 28090 Capozzi & Associates, P.c. 2933 North Front Street Harrisburg, P A 17110-1250 Telephone: 717-233-4101 FAX: 717-233-4103 Attorneys for Respondent ESTATE OF BETTY R. V ALENCIK : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA : ORPHANS' COURT DIVISION CHESTER L. V ALENCIK, JR., : No. 21-08-0120 Petitioner, TROY A. V ALENCIK, Respondent. CERTIFICATE OF SERVICE I, Bruce G. Baron, Esquire, do hereby certify that I have served a true and correct copy of the foregoing ANSWER TO RULE TO SHOW CAUSE upon the following below-named individuals by U.S. Mail, first class postage prepaid, at Harrisburg, Pennsylvania, this 25TH day of February, 2008: SERVED UPON: Neil Warner Yahn, Esquire JAMES SMITH OIETTERICK & CONNELLY, LLP P. O. BOX 650 Hershey, P A 17033 [Attorneys for Petitioner] C?Y~/4 a~~ Bruce G. Baron, Esquire Attorney J.D. No. 28090 17