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HomeMy WebLinkAbout07-23-08F:\FILES\CGrnts\12365 Stull\12365.1.motion\las 12365.1 Hubert X. Gilroy, Esquire MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES I.I). 29943 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Respondents IN RE: ESTATE OF LINWOOD B. PHILLIPS, JR., ALICE R. PHILLIPS, Petitioner vs. ROBERT G. FREY, LINDA L. STULL, ROBERT M. FREY, SUSAN R. HENRY, Respondents IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION NO. 21-06-0122 c~ ~~~ . ,~ o rte, : ~,~? ~ ~ r c-~ . . . _ _ " '- N C M1' `~ N AND NOW, come the Beneficiaries, Linda L. Stull and Linwood B. Phillips, III, (hereinafter "Beneficiaries") by and through their counsel, Martson Law Offices, and request the Court to amend its Order of July 11, 2008, to add a certification pursuant to 42 Pa.C.S.A. § 702(b), permitting Beneficiaries to take an Interlocutory Appeal, and in support of this Motion, aver the following: 1. This action stems from Alice R. Phillips' ("Surviving Spouse") intention to elect against the WiII of her husband, Linwood B. Phillips, Jr. ("Decedent") 2. On October 2, 2000, the Decedent and the Surviving Spouse entered into a Pre- Nuptial Agreement which provided that both parties waived their right to an elective share. 3. Decedent died on February 2, 2006. 4. The Surviving Spouse filed a Notice of Election against the Wilt, which the Executor objected to on the grounds that Surviving Spouse waived her right to the elective share pursuant to the Pre-Nuptial Agreement. 5. The Executor hired the services of a private investigator who apparently conducted informal investigations. 6. Surviving Spouse argued that the Estate's informal investigations constituted discovery, and therefore waived any protections of the Dead Man's Act. 7. After hearing argument and considering the briefs of both the Estate and the Beneficiaries, the Court entered an Order on July 11, 2008, granting the Surviving Spouse's Motion in Limine, and precluding the estate from introducing or making reference to the Dean Man's Statute. 8. The attached Memorandum to the Court's Order of July 11, 2008, stated that "The Court finds that [the Estate] waived the protection of the Dead Man's Act by engaging the services of a private detective." 9. The Beneficiaries of the Estate did not hire the private investigator and are innocent parties whose interest in the Estate should not be adversely affected by the Executor's actions. 10. The Beneficiaries did not conduct discovery in this case and have not waived the Dead Man's Statute. 11. The Beneficiaries will be put at a distinct disadvantage if this case proceeds to a hearing for the following reasons: A. In order to preserve the issue of the Court precluding use of the Dead Man's Statute to prohibit the surviving spouse from testifying, the Beneficiaries would be unable to proceed with any discovery at this time and, in reality, would be precluded from even cross-examining the surviving spouse at a hearing. B. Assuming the July 11, 2008, Order is correct and an Appellate Court would so determine, the Beneficiaries should be given the opportunity to proceed with discovery in advance of a hearing without being put into a position of waiving the Dead Man's Statute and, thereby, waiving any legitimate issue for review by an Appellate Court as to whether or not the informal discovery conducted by the investigator hired by the Executor constituted a waiver of the Dead Man's Statute for all parties involved in the litigation. 12. Although the Court's Order is interlocutory in nature, permitting Beneficiaries to appeal at this time would be in the interest of justice in that the Order involves a controlling question ol~ law as to which there is substantial grounds for difference of opinion, and an immediate appeal may materially advance the ultimate termination of the matter. 13. Beneficiaries run the risk of irreparable harm if this Court's decision is not correct and find themselves in the dilemma of having to choose between two equally unpleasant alternatives: i. Moving forward with formal discovery in preparation for trial and unequivocally waiving any protections of the Dead Man's Act, or; ii. Not conducting any discovery, but preserving the issue of the Dean Man's Act for appeal, and moving forward with the case without sufficient information. 14. Attorney for the Surviving Spouse has been contacted, and does not concur with this motion. 15. Attorney for the Executor has been contacted and does concur with this Motion. WHEREFORE, the Beneficiaries request the Court to amend its Order pursuant to 42 Fa.C.S.A. § 702(b) to state that "the Order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the Order may materially advance the ultimate termination of this matter" thereby permitting Beneficiaries to take a.n immediate appeal therefrom. Respectfully submitted, MARTSON LAW OFFICES i ~~ A By: Hubert X. Gilroy, Esqui I.D. No. 29943 10 East High Street Carlisle, PA 17013 (717) 243-3341 :Date: Julys 3 2008 Attorneys for Beneficiaries