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HomeMy WebLinkAbout07-10-08IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA n ORPHANS' COURT ~ ~ -- -z, IN RE: ROBERT G. TRAVER and LOIS J. TRAVER `~s~ rn _ : r; -?'~L7 O.C. No. 2008-005E~; ~ ~ ~'~ - ~, -~ --~ N r ca -v c.~ .~ coo PETITIONER'S REPLY TO NEW MATTER TO PETITION FOR REMOVAL OF AGENTS AND APPOINTMENT OF A TRUSTEE TO FACILITATE THE SALE OF REAL PROPERTY AND NOW COMES Petitioner, HCR ManorCare -Camp Hill ("Petitioner" or "ManorCare"), by and through its counsel, ScHUTJER BOGAR LLC, and files this Reply to New Matter to Petition for Removal of the Agents and Appointment of Trustee to Sell Real Property: NEW MATTER 32. Admitted in part and denied in part as a conclusion of law. It is admitted that a promissory note and mortgage for the benefit of ManorCare was signed on May 25, 2Q08, by Anna Messimer as agent of both Robert and Lois Traver. It is specifically denied that the note and mortgage were signed at ManorCare's insistence. Moreover it is denied that the promissory note and mortgage guarantee full payment to ManorCare. ~~=: r, r ~. `:~ :~ ,.,~ ~~~~ As the Respondents are attempting to characterize written documents that speak for themselves, strict proof thereof is demanded. ONtG;NNI 33. The averments in paragraph 33 are specifically denied and strict proof thereof is demanded. By way of further answer, Respondents would simply periodically advise ManorCare that they had entered into negotiations for the sale of the property. Moreover, in paragraph 35 Respondents indicate that an agreement was entered into on June 3, 2008, however ManorCare was not alerted of any agreement of sale until June 16, 2008, after the subject Petition had been filed. ManorCare has still not been presented with any evidence, beyond counsel for Respondents' assertions that Respondents have entered into an agreement of sale. 34. Admitted. By way of further response, subsequent to the May 14, 2008, correspondence, Ms. McCarron also indicated that the potential buyer was unsatisfied with the results of a soil percolation test performed at the property, jeopardizing any potential sale of the property. Further, Petitioner was never informed of the status of any negotiations until the June 16, 2008, correspondence from the Respondents advising that an Agreement of Sale had been executed. 35. Denied. The averments in paragraph 35 are specifically denied and strict proof thereof is demanded. By way of further response, Respondents, through counsel, failed to notify ManorCare of any Agreement of Sale until June 16, 2008, and ManorCare has still not been presented with any evidence beyond counsel for Respondents' assertions that Respondents have entered into an Agreement of Sale. 2 36. Denied as pure speculation. By way of further response, at the time of filing the Petition for Removal of Agents and Appointment of Trustee to Facilitate Sale of Real Property, ManorCare had no indication from counsel for Respondents that Respondents had entered into an Agreement of Sale, despite counsel's statement to the contrary. Moreover, ManorCare has still not been presented with any evidence beyond counsel for Respondents' assertions that Respondents have entered into an Agreement of Sale. 37. Denied as pure speculation. By way of further response, at the time of filing the Petition for Removal of Agents and Appointment of Trustee to Facilitate Sale of Real Property, ManorCare had no indication from counsel for Respondents that Respondents had. entered into an agreement of sale despite counsel's statement to the contrary. Moreover, ManorCare has still not been presented with any evidence beyond counsel for Respondents' assertions that Respondents have entered into an Agreement of Sale. 38. Denied as a conclusion of law. It is specifically denied that the Petition is needless or vexatious. By way of further answer, this Petition was filed to address potential dual powers of attorney and conflicts of interest as to whose interests, agents or principals', are being represented by Ms. Messimer, as her actions clearly indicate she is not acting in her parents' best interests. 3 39. Denied and strict proof thereof is demanded. By way of further answer, the property was to be listed with a reputable realtor in January of 2008, in order to provide the needed exemptions to Respondents under 55 Pa. Code ~ 178.51 (a), but Respondents continue to refuse to list the property with a licensed realtor. 40. Denied as a conclusion of law. By way of further answer, Respondents' reference to Paragraph 31 of ManorCare's Petition is irrelevant to the outrageousness of said Petition. ManorCare has not received any payment for the skilled nursing care provided to Respondents for over a year and the failure of their daughter/agent to attempt to satisfy the outstanding balance owed to ManorCare has placed her parents and their estate in jeopardy, which is a breach of her fiduciary duties. 41. Denied as speculation and as a conclusion of law. It is specifically denied that ManorCare filed this Petition for its own financial benefit and that the Petition is an abuse of process. By way of further answer, this Petition was filed to address potential dual powers of attorney and conflicts of interest as to whose interests, agents or principals', are being represented by Ms. Messimer, as her actions clearly indicate she is not acting in her parents' best interests. 42. Denied as a conclusion of law and strict proof thereof is demanded. By way of further answer, if Ms. Messimer is honoring her duties as agent of Mr. and Mrs. Traver, then there should be no cause to defend herself within the context of any alleged sale of real estate. 4 43. Admitted in part and denied in part. It is admitted that ManorCare's Petition calls into question Anna Messimer's position as the Travers' Agent. The speculation as to the response of any potential buyers is denied and strict proof is demanded. WHEREFORE, Petitioner respectfully requests this Honorable Court deny Respondent's Request for Relief and to strike Respondent's New Matter. Respectfully submitted, SCHUTJER BOGAR LLC Dated: ~ By: l Kirk Sohonage Attorney I.D. No. 77851 (717) 909-8160 Brandon S. Williams Attorney I.D. No. 200713 (717) 909-5922 417 Walnut Street, 4~ Floor Harrisburg, PA 17101 Fax No.: (717) 909-5925 Attorneys for Petitioner ManorCare 5 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date, a true and correct copy of the foregoing Reply to Nezc~ Matter to Petition for Removal of the Agents and Appointment of Trustee to Se11 Real Property was served via first-class United States mail, postage prepaid upon the following: Lowell R. Gates, Esquire GATES, HALBRUNER & HATCH, P.C. 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 Date: * ~ ~ 9 BY~ William Keslar, Paralegal