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Home My WebLink About09-13-07IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION IN RE: ESTATE OF FRANK F. DAVENPORT, JR. No. 21-1965-1983 WACHOVIA BANK, N.A., TRUSTEE UNDER THE RESIDUARY "TRUST B" FIB/O SUZANNE B. DAVENPORT AND ISSUE Petitioner, PETITION TO RESCIND ORDER IN CONNECTION WITH CITATION TO SHOW CAUSE DATED JANUARY 12, 2007 AND AMENDED CITATION TO SHOW CAUSE DATED JANUARY 24, 2007 v. FRANK F. DAVENPORT, III Respondent. Filed on Behalf of Wachovia Bank, National Association Counsel of Record for this Party: William Campbell Ries, Esquire Pa.I.D. No. 19919 TUCKER ARENSBERG, P.C. Firm No. 287 1500 One PPG Place Pittsburgh, PA 15222 412-566-1212 n:.., ~ .. ... • -: .. .. .: "~: i .. .: t .. ,,, .. ,.~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION IN RE: ESTATE OF FRANK F. DAVENPORT, JR. No. 21-1965-1983 WACHOVIA BANK, N.A., TRUSTEE UNDER THE RESIDUARY "TRUST B" F/B/O SUZANNE B. DAVENPORT AND ISSUE Petitioner, PETITION TO RESCIND ORDER IN CONNECTION WITH CITATION TO SHOW CAUSE DATED JANUARY 12, 2007 AND AMENDED CITATION TO SHOW CAUSE DATED JANUARY 24, 2007 v. FRANK F. DAVENPORT, III Respondent. PETITION TO RESCIND ORDER IN CONNECTION WITH CITATION TO SHOW CAUSE DATED JANUARY 12, 2007 AND AMENDED CITATION TO SHOW CAUSE DATED JANUARY 24, 2007 NOW COMES, WACHOVIA BANK, N.A. (hereinafter "Wachovia Bank") by and through its undersigned counsel and files the within Petition To Rescind Order In Connection With Citation To Show Cause dated January 12, 2007 and Amended Citation to Show Cause dated January 24, 2007, and in support thereof state as follows: Petitioner Wachovia Bank is a Co-Trustee of Trust B under the Will of Frank F. Davenport, Jr. dated October 13, 1952 (hereinafter the "Trust") 2. The Testator's wife, Suzanne B. Davenport, serves as Co-Trustee. 3. On information and belief, Mrs. Davenport is either unable or unavailable to perform her functions as Co-Trustee because of illness and/or incapacitation. -2- 4. On January 9, 2007, Frank F. Davenport, III, (hereinafter "Mr. Davenport") by and through his attorney, Neil W. Yahn, filed a Petition For Citation To Show Cause Why An Inventory And Accounting Should Not Be Filed By Respondent Wachovia Bank, NA While Acting Trustee Of "Trust B" As Created Under The Estate Of Frank F. Davenport, Jr., F/B/O Suzanne B. Davenport And Issue. 5. On January 12, 2007, this Court issued a Citation directed to Wachovia Bank, to show cause why: (1) an Inventory and Accounting should not be filed; (2) why Wachovia Bank should not dispose of any assets; (3) why it should not account for any and all assets that it has procured or are in its possession belonging to Decedent's estate; and (4) why Wachovia Bank should not produce the entire file and any copies of all documents in its possession relating to the Decedent's estate. 6. On January 24, 2007, this Honorable Court issued an Amended Citation which was identical in substance to its prior Citation of January 12, 2007. 7. On April 30, 2007, Wachovia Bank filed an Answer to Mr. Davenport's Petition to Show Cause. 8. Nevertheless, on May 4, 2007 Wachovia Bank filed its First and Final Account and Petition for Adjudication/Statement of Proposed Distribution. 9. Importantly, Mr. Davenport filed no objections to the Account. 10. By Order of Court dated June 19, 2007, this Court confirmed Wachovia Bank's Account. 11. However, as a result of the Citation and Amended Citation directing that Wachovia Bank may not dispose of the assets of the Trust, it has been unable to sell securities or other assets since January 12, 2007. -3- 12. Wachovia Bank has complied with the terms of the Citation and Amended Citation through the filing of its Account and by making all information available to satisfy the requests of Mr. Davenport and his counsel. 13. In order for Wachovia Bank to properly administer the Estate and Trust B, it must have the ability to carry out its duties and responsibilities under the terms of the Trust, including the ability to dispose of assets in order to pay the Trust's obligations. 14. Wachovia Bank, N.A., is unable to effectively and prudently administer the Trust due to the pending prohibition on the sale of securities resulting from the Citation of January 12, 2007 and Amended Citation of January 24, 2007. 15. Therefore, Wachovia Bank respectfully requests that it be permitted to resume the administration of the Trust, particularly with respect to its ability to sell securities in an appropriate and prudent manner. 16. Although Wachovia Bank and Mrs. Davenport are Co-Trustees under the Trust, Mrs. Davenport is unavailable to perform her duties as Co-Trustee and timely action is necessary to avoid injury or loss to the Trust's assets and to satisfy the Trust's obligations. 17. Pursuant to Section 7763(d) of the Pennsylvania Uniform Trust Act, 20 Pa. C.S.A. §§7701, et seq., "[i]f a cotrustee is unavailable to perform duties and prompt action is necessary to achieve the purposes of the trust or to avoid injury or loss to the trust property, the remaining cotrustee or a majority of the remaining cotrustees may act for the trust." -4- VERIFICATION I, Diane Goad, Assistant Vice President of Wachovia Bank, N.A., state that the facts contained in the foregoing Petition To Rescind Order In Connection With Citation To Show Cause dated January 12, 2007 and Amended Citation to Show Cause dated January 24, 2007 are true and correct to the best of my knowledge, information and belief. This Verification is made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities. Date: ~ ~C~j _ , 2007 s t ~ L~. Name: Diane Goad Title: Assistant Vice President, Wachovia Bank, N.A. BANK FIN:303449-3 017579-131522 18. Therefore, it is appropriate for Wachovia Bank to act on behalf of the Trust until such a time that Mrs. Davenport becomes available to serve as Co-Trustee or a successor is named to replace her as Co-Trustee. 19. In addition, Mr. Davenport has made no objections to the Account or the Petition for Adjudication/Statement of Proposed Distribution and the Account has been confirmed by this Court. 20. Accordingly, this Court's rescission of its Order in connection with the Citation of January 12, 2007 and Amended Citation of January 24, 2007 is warranted and in the best interest of the Trust and its beneficiaries. WHEREFORE, Wachovia Bank, N.A., respectfully requests that this Honorable Court grant the foregoing Petition and rescind its prior Order in connection with the Citation dated January 12, 2007 and Amended Citation dated January 24, 2007. Date: ` ~ c~~~ Respectfully submitted, TL By BANK FIN:303449-4 017579-131522 -5- William Campbell Ries, Esquire Pa. I.D. No. 19919 1500 One PPG Place Pittsburgh, Pennsylvania 15222 (412) 566-1212 CERTIFICATE OF SERVICE On this 1 ~ th day of , 2007, I hereby certify that a true and correct copy of the foregoing Petition To Rescind Order In Connection With Citation To Show Cause dated January 12, 2007 and Amended Citation to Show Cause dated January 24, 2007, filed by Wachovia Bank, N.A. was served upon all counsel of record via first class mail, postage prepaid, addressed as follows: Neil W. Yahn, Esquire James Smith Dietterick & Connelly, LLP Post Office Box 650 Hershey, PA 17033 TUCK R ARENS , P.C. By: William Campbell Ries, Esq. BANK FIN:303449-3 017579-131522 TUCKER ARENSBERG Attorneys September 11, 2007 Cumberland County Register of Wills Clerk of the Cumberland County Orphans' Court One Courthouse Square Carlisle, PA 17013 William Campbell Ries 412.594.5646 caries@tuckerlaw.com Re: Estate of Frank F. Davenport, Jr., Wachovia Bank, N.A. Trustee under the Residuary "Trust 8" F/B/O Suzanne B. Davenport and Issue vs. Frank F. Davenport, 111 -Case No. 21-65-1963 Dear Sir or Madam: Please find enclosed for filing Wachovia Bank, N.A. 's Petition to Rescind Order in Connection with Citation to Show Cause Dated January 12, 2007, and Amended Citation to Show Cause Dated January 24, 2007, along with an extra copy of the coversheet. I have also enclosed a check in the amount of $15.00 to cover the filing fee and addressed envelopes for all interested parties. Kindly file the Petition pursuant to your local rules of court and return the time stamped coversheet to me in the enclosed seif- addressed, stamped envelope. By way of this correspondence, I am providing Judge Ebert with a courtesy copy of this Petition. Thank you for your attention to this matter. If you have any questions or concerns, please do not hesitate to contact me. Very truly yours, WCR/Ims Enclosure c: Ms. Diane Goad (w/enc.) Neil W. Yahn, Esqurie (w/enc.) BANK FIN:307131-1 017579-131522 .~r CI Tucker Arensberg. P.C- t 500 One PPG Place Pittsburgh, PA 15222 p. 412.566.1212 f. 412.5:~45F t ~? www h:cker'~a:^.~ com 111 N. Front Street P.O. Box 889 Harrisburg. PA 17108 p. 7t7.234.4~21 f "~'1 - ?;?.5802 William Campbell Ries