HomeMy WebLinkAbout07-29-08
~ F:\FILES\Clieats\11145\I1I45.2.mot.appeall.wpd
Created: 9/20/04 0:06PM
Revised: 7129!08 3:33PM
11145.2
George B. Faller, Jr., Esquire
I.D. No. 49813
Seth T. Mosebey, Esquire ~ O
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LD. No. 203046 im'
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MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER =
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MARTSON LAW OFFICES ^ `~ '
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10 East High Street
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Attorneys for Respondent Robert G. Frey, Executor of the
Estate of Linwood B. Phillips, Jr.
IN RE: IN THE COURT OF COMMON PLEAS OF
ESTATE OF LINWOOD B. PHILLIPS, JR.,: CUMBERLAND COUNTY, PENNSYLVANIA
N0.21-06-0122
ORPHANS' COURT DIVISION
MOTION OF ROBERT G. FREY FOR AN AMENDED ORDER
FOR PURPOSES OF TAKING AN INTERLOCUTORY APPEAL
AND NOW, comes Respondent, Robert G. Frey, Executor of the Estate of Linwood B.
Phillips, Jr., by and through his attorneys, MARTSON DEARDORFF WILLIAMS OTTO GILROY
& FALLER, and hereby moves for this Court to amend its Order of July 11, 2008, to add a
certification pursuant to 42 P.S. § 702(b), permitting him to take an interlocutory appeal as follows:
1. This action stems from Alice R. Phillips' ("Surviving Spouse") attempt to elect
against the Will of her husband, Linwood B. Phillips, Jr. ("Decedent")
2. Surviving Spouse and Decedent entered into a Prenuptial Agreement ("Agreement")
in contemplation of marriage on October 2, 2000.
3. Decedent and Surviving Spouse were married on October 6, 2000.
4. Decedent died on February 2, 2006, leaving a Will which made provision for
Surviving Spouse.
5. On May 10, 2006, Surviving Spouse filed a Petition for Relief seeking to have Robert
G. Frey ("Respondent") removed as executor of Decedent's Estate.
6. The Petition for Relief filed by Surviving Spouse contained scandalous and
impertinent averments relating to Respondent.
7. On June 22, 2006, Surviving Spouse filed a Notice of Election pursuant to 20
Pa.C.S.A. § 2201, which the Executor objected to on the grounds that the Surviving Spouse waived
her right to the elective share pursuant to the Agreement.
8. Gerald Henneman conducted informal investigations but never conducted discovery,
in that he never asked for information from Surviving Spouse or her counsel.
9. Surviving Spouse filed a Motion in Limine, contending that the investigation
conducted by Mr. Henneman constituted discovery, which therefore waived the protection of the
Dead Man's Act.
10. After hearing argument and considering briefs, this Court issued an Order on
July 11, 2008, granting Surviving Spouse's Motion in Limine and precluding the estate from
utilizing the protections of the Dead Man's Act.
11. If this matter proceeds to trial in the absence of an appeal to the Superior Court, then
Respondent will suffer irreparable harm and a distinct disadvantage at trial as follows:
a. If the case proceeds to trial without the benefit of an appeal, then Respondent
will need to conduct formal discovery in order to prepare his defense. Even
though Respondent would be intending to contest the validity of this Court's
July 11, 2008, ruling, such discovery would undoubtedly be viewed as a
waiver of the protections of the Dead Man's Act.
b. Because Respondent intends to appeal the July 11, 2008, decision after trial
if he is not granted permission to make an interlocutory appeal, he is left in
the untenable position of either proceeding to trial without the benefit of
discovery in order to preserve the issue for appeal or of waiving the
protections of the Dead Man's Act and engaging in discovery, thereby
effectively waiving the right to appeal after trial.
12. Even if the Superior Court upholds this Court's ruling of July 11, 2008, on appeal,
then Respondent will require time to complete formal discovery in order to prepare a defense for
trial.
13. As set forth herein, this Court's Order of July 11, 2008, involves a controlling
question of law as to which there is substantial ground for difference of opinion, and an immediate
appeal from the Order may materially advance the ultimate termination of this matter.
14. Based upon the filing of Beneficiaries' Motion to Amend Order of July 11, 2008, to
Certify for Purposes of Taking an Interlocutory Appeal, counsel for Surviving Spouse does not
concur with this Motion, and counsel for the beneficiaries does concur in this Motion.
WHEREFORE, Robert G. Frey, respectfully requests that this Court issue an amended Order
in accordance with 42 P.S. § 702(b) stating 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
Robert G. Frey to take an immediate appeal therefrom.
MARTSON LAW OFFICES
J•
George B. Faller, Jr., Esqu re
I.D. No. 49813
Seth T. Mosebey, Esquire
I.D. No. 203046
10 East High Street
Carlisle, PA 17013
(717) 243-3341
Date: July 29, 2008 Attorneys for Respondent Robert G. Frey, Executor
of the Estate of Linwood B. Phillips, Jr.
CERTIFICATE OF SERVICE
I, Melissa A. Scholly, an authorized agent for Martson Deardorff Williams Otto Gilroy &
Faller, hereby certify that a copy of the foregoing Motion of Robert G. Frey for an Amended Order
for Purposes of Taking an Interlocutory Appeal was served this date by depositing same in the Post
Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows:
Neil Warner Yahn, Esquire
JAMES, SMITH, DIETTRICK & CONNELLY, LLP
P.O. Box 650
Hershey, PA 17033
Hubert X. Gilroy, Esquire
MARTSON LAW OFFICES
10 East High Street
Carlisle, PA 17013
MARTSON LAW OFFICES
By: '~"
Melissa A. Scholly
Ten East High Street
Carlisle, PA 17013
(717) 243-3341
Dated: July 29, 2008