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HomeMy WebLinkAbout09-2034LESTER G. KISSINGER, JR., IN THE COURT OF COMMON PLEAS EXECUTOR, ESTATE OF CUMBERLAND COUNTY, PENNSYLVANIA ANITA M. KISSINGER, Plaintiff JUANITA M. PANKO, NO. Oq - a 054 Oivi (Term Defendant NOTICE TO: Juanita M. Panko c/o Steven J. Schiffinan, Esquire Serratelli, Schiffman, Brown & Calhoon, P.C. Suite 201 - 2080 Linglestown Road Harrisburg, PA 17110-9693 YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 (717) 249-3166 LESTER G. KISSINGER, JR., EXECUTOR, ESTATE OF ANITA M. KISSINGER, Plaintiff JUANITA M. PANKO, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. C;d- COMPLAINT FOR CANCELLATION OF DEED AND NOW, this 0 day of April 2009, comes the Plaintiff, Lester G. Kissinger, Jr., by his attorneys, Ball, Murren & Connell, and files this Complaint seeking equitable relief, the statement of which is as follows: 1. The Plaintiff, Lester G. Kissinger, Jr., an adult individual, Executor of the Estate of Anita M. Kissinger, resides at 11 Longwood Drive, Mechanicsburg, Pennsylvania. 2. Defendant, Juanita M. Panko, an adult, resides at 2153 Bordeaux Court, Harrisburg, Pennsylvania. 3. Anita M. Kissinger (Decedent) died on September 5, 2008 leaving a Will dated May 29, 1981 which was admitted to probate. A copy of the Will is attached as Exhibit "A" and is incorporated herein by reference. 4. Plaintiff, Lester G. Kissinger, Jr. was appointed executor of the Estate of Anita M. Kissinger, Deceased, by decree dated September 15, 2008 of the Register of Wills, Cumberland County, Pennsylvania. A true and correct copy of the Letters Testamentary is attached as Exhibit "B" and is incorporated herein by reference. 5. On August 22, 2008, Deceased allegedly signed an instrument purporting to be a fee simple deed which was recorded on August 28, 2008 in the Office of Recorder of Deeds of Cumberland County in Reed m6" ?? , Page A/6. . A true and correct copy of said deed is attached hereto as Exhibit "C". Qoo a aq, q q. 6. The deed purports to convey to Defendant all that certain piece of ground, with the buildings and improvements erected thereon, known as 215 North 30th Street, Camp Hill, Pennsylvania (the "property"), for no consideration. 7. At the time the deed was signed, Deceased was in her 80th year, suffered from an advanced terminal cancer condition, namely metastatic biliary cholangiocarcinoma, was weak in body and mind, being at the time bedridden, had pain throughout her body in her stomach, joints and bones, was medicated and sedated, including among the prescribed and administered drugs Lorazepan for agitation, Morphine for pain, and Ambien, a sleeping pill, was easily influenced and was not possessed of sufficient mental capacity to comprehend the true meaning of the deed or the effect of her act. COUNTI FRAUD, INTENTIONAL MISREPRESENTATION, DURESS, COERCION AND UNDUE INFLUENCE 8. Paragraphs 1 through 7 are incorporated by reference as though fully set forth. 9. At the time the deed was signed, a confidential relationship existed between the Deceased on the one hand and Defendant on the other in that Defendant occupied a superior and overmastering position over Deceased, intellectually and physically, and had opportunity to use and did use the superiority to the disadvantage of the Deceased. 10. Defendant induced Deceased to execute the deed through fraud, intentional misrepresentation, duress, coercion and undue influence. 11. The acts committed by Defendant which constituted fraud, intentional misrepresentation, duress, coercion and undue influence include, but are not limited to, excessive importunity and intentional misrepresentations and deceit all of which were directed towards or against the Deceased. 12. The aforesaid acts were committed by Defendant at or near the time of execution of the deed and for a period of time immediately prior thereto. 13. The aforesaid acts were committed by Defendant with the sole purpose of leading Deceased to execute the deed in favor of Defendant, which Decedent otherwise would not have done. 14. Defendant procured the execution of the deed by fraud, intentional misrepresentation, duress, coercion and undue influence as aforesaid and with intent to cheat and defraud Deceased and two of the residuary heirs of the Deceased's estate, namely Lester G. Kissinger, Jr. and Jacob T. Kissinger, and now claims the property as the fruit of the aforesaid wrongful acts. 2 WHEREFORE, Plaintiff prays: (a) that the deed from Anita M. Kissinger to Defendant, Juanita M. Panko, be declared null and void and that Defendant be ordered to immediately restore all the estate and premises described in the deed to the Plaintiff as executor of the estate of Anita M. Kissinger; (b) for such other equitable relief as the court may deem necessary and proper including costs of suit to include the award of attorneys' fees incurred by the estate to maintain this action. COUNT II LACK OF CAPACITY 15. Paragraphs 1 through 14 are incorporated herein as if fully set forth. 16. At the time of the alleged conveyance, Deceased was in an acute, confused mental state and was unable to attend to day-to-day business activities, any details relating to property which she owned or any normal activities of daily living. 17. Deceased suffered tremendous physical pain which required administration of pain killing drugs and anxiety reducing medication which induced mental confusion and an inability to communicate meaningfully. 18. At the time of the alleged conveyance, Deceased had weakened intellect evidenced by confusion due to stress, fatigue and the ravaging effects of her illness and lacked the ability to comprehend matters involving the slightest complexity. 19. At the time of the alleged conveyance, Deceased was too weak, disoriented and medicated to have known what was presented to her for signing and was too weak to have understood an oral review. 20. Due to the terminal state of the Deceased, the manner of creation of the deed, her confusion and inability to conduct even the simplest of business activities, she could not have knowingly signed the document intending to, in significant measure, undermine her long-settled testamentary plan to divide her entire estate, equally, among her three children. WHEREFORE, Plaintiff prays: 3 (a) that the deed from Anita M. Kissinger to Defendant, Juanita M. Panko, be declared null and void and that Defendant be ordered to immediately restore all the estate and premises described in the deed to the Plaintiff as executor of the estate of Anita M. Kissinger; (b) for such other equitable relief as the court may deem necessary and proper including costs of suit to include the award of attorneys' fees incurred by the estate to maintain this action. Respectfully Submitted, BALL, MURREN & CONNELL BY Richard E. Conne 1, squire I.D. # 21542 2303 Market Street Camp Hill, PA 17011 (717) 232-8731 Attorney for Plaintiff Date -? 4 C 1bO 9 4 VERIFICATION I, LESTER G. KISSINGER, JR., Executor of the Estate of Anita M. Kissinger, verify that the statements in the foregoing document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. - /" /' 'e 14? ?' LESTER G. ISSINGER, ., E tutor of the Estate of Anita M. Kissinger Date 3 3 r ,?, 0 G ?' EXHIBIT A LAST WILL AND TEST41ENT OF ANITA M. KISSINGER I, ANITA M. KISSINGER, a resident of the Commonwealth of Pennsylvania, being of sound and disposing mind and memory, do hereby make, publish and declare this instrument to be my LAST WILL AND TESTAMENT. I hereby revoke any and all wills and codicils heretofore made. I IDENTIFICATIONS AMID DEFINITIONS I am married to LESTER G. KISSINGER, hereinafter referred to as my Spouse." We have three children, LESTER G. KISSINGER, JR., JUANITA M. KISSINGER and JACOB T. KISSINGER. References in this Will to "my Children" include these three children and any other lawful children born to or adopted by me. The following definitions obtain in any use of the terms in this Will: 1. "Descendants" means the immediate and remote lawful, lineal descendants of the person referred to, and it means those descendants in being at the time they must be ascertained in order to give effect to the reference to them, whether they are born before or after my death or of any other person. The persons who take under this will as Descendants shall take by right of representation, in accordance with the rule of per stirpes distribution and not in accordance with the rule of per capita distribution. Persons legally adopted when under the age of fourteen years shall not be differentiated from blood descendants for any purpose. 2. "Survive me" is to be construed to mean that the person referred to must survive me by thirty days. If the person referred to dies within thirty days of my death, the reference to him shall be construed as if he had failed to survive me. 3. As used in this Will, the words "Executor, "he," "him," "his," and the like shall be taken as generic and applicable to a natural person of either sex or a corporate person or other legal entity. II PAYMENT OF'DEBTS'AND TAXES I direct my Executor to pay the following as soon after my death as may be practicable: 1. All of my just debts and the expenses of my last illness, funeral and of the administration of my estate; but my Executor need not accelerate and pay those unmatured obligations which, in his opinion, it might be proper and more advantageous to retain or renew and pay as they become due and payable. 2. All inheritance, transfer, estate and similar taxes (including interest and penalties) assessed or payable by reason of my death, on any property or interest in my estate for the purpose of computing taxes. My executor shall not require any beneficiary under this will to reimburse my estate for taxes paid on property passing under the terms of this Will. III RESIDUARY ESTATE A. I define "my Residuary Estate" as all of my property after the payment of debts and taxes under Article II above, including real and personal property, whenever acquired by me, property as to which effective disposition is not otherwise made in this Will or by operation of law, and property as to which I have an option to purchase or a reversionary interest, but excluding property as to which I have no interest other than a power of appointment. B. I give my Residuary Estate to my Spouse if he survives me. C. If my Spouse does not survive me, I direct my Executor to divide my Residuary Estate into equal shares and to distribute'those shares as follows: 1. one share to each of my Children who survive me. 2. one share to be divided equally among the then living descendants of each of my Children who do not survive me. IV APPOINTMENT OF EXECUTOR I nominate and appoint my Spouse, LESTER G. KISSINGER, as Executor of this my LAST WILL AND TESTAMENT. If LESTER G. KISSINGER is unable or unwilling to serve in this capacity, I appoint my son, LESTER G. KISSINGER, JR. to serve instead. I request that my Executor be,peipttted to serve without bond or surety thereon. I r:ze r-to do any and all things which in his opinion oecessary to 1ete• tie administration and settlement -.Pw - ", nciudriT Sri I °rt, power" ancl authority, without the order eaffiat of any court and upon such terms and under such conditions as my Executor shall deem best for the proper settlement of my estate; to bargain, sell at public or private sale, convey, transfer, deed, mortgage, lease, exchange, pledge, manage and deal with any and all property belonging to my estate; to compromise, settle, adjust, 'release and discharge any and all obligations or claims in favor of or against my estate; and to borrow money for the payment of inheritance and estate taxes or for any other purpose. Without in any way limiting the scope of the powers enumerated herein of my Executor, I hereby specifically give to him full power to retain any and all securities or property owned by me at the time of my decease whenever, in his absolute and uncontrolled discretion, such a course shall seem to him to be best, without liability for depreciation or loss, and free from investment restrictions incident to executorship, whether imposed by common law or statute. In the execution of his duties and powers as Executor he shall have the power to comply with all legal requirements as to the execution and delivery of deeds and all other writings, documents or formalities without the order of any court; and he shall furnish a statement of receipts and disbursements at least annually to each person then entitled to receive income or property from my estate. IN WITNESS WHEREOF, I have at Carlisle Barracks, Pennsylvania, this .?.. day of ..... . .. ......., 1981, set my hand and seal to this my LAST WILL AND TESTAMENT consisting of three (3) typewritten pages. ANITA M. KISSINGER, Tes for Signed, sealed, published and declared by the Testator, ANITA M. KISSINGER, as and for her Last Will and Testament, in the presence of us, who, at her request, in her presence and in the presence bf each other, have hereunto subscribed our names as witnesses. NAME ?............ ADDRESS f ' 4z", . .. ?. Q, U 5 6. 611. 51.0 8Aftor rsl ;3 COMMONWEALTH OF PENNSYLVANIA)SS: COUNTY OF CCNIDERIAND ) I, ANITA M. KISSINGER, Testator, whose name is signed to the attached or foregoing instrument, having been duly qualified according to law, do hereby acknowledge that I signed and executed the instrument as my Last Will; that I signed it willingly; and that I signed it as my free and voluntary act for the purposes therein expressed. Sworn or affirmed to and ackn,w ledged befo a me, by ANITA M. KISSINGER, the Testator, this .?:.., day of (Mq)............. 1981. • ? ANITA M. KISSINGER, Testator (SEAL) .,........... ................ Notary Public• - G*O A. Cabner, Notary Affidavit' lt?t? Avp.,,?' MCommission Expires Feb. 5, I983? Member, COMMONWEALTH OF PENNSYLVANIA) Ss : Pennsylvania Aumiaticn of Nafara- COUNTY OF ) 7 1 We, ..,crO Sfl . H :?i ?/ Z... , C? ?a Eyv.. :. . and ... ......... I'Y1,chaei,fgs........ the witnesses whose names are signed to the attached or foregoing instrument, being duly qualified according to law, do depose and say that we were present and saw Testator sign and execute the instrument as her Last Will; that ANITA M. KISSINGER, signed willingly and that she executed it as her free and voluntary act for the purposes therein expressed; that each of us in the hearing and sight of the Testator signed the will as witnesses; and that to the best of our knowledge the Testator was at that time 18 or more years of age, of sound mind and under no constraint or undue influence. Sworn or affirmed to ubscribed to befor by ?. ?.' .. , T! Z c?2 cr N /? - r} p ,5 •?1. . , .':t ...... ... ./.:J?( ... , and ... 4G%cA; :/ylr:lr ;a! . witnesses, this day of ..., f;,,,,...,, 1981. ....... ............ .... WI S .WITNESS SS , WITNESS Notary Public +lh A. T, Qb* bfy Canmixon ., Cumbe u b CoU Member, Penns-:a.,...EXP1fts Finn , 1ta3 EXHIBIT B . REGISTER OF WILLS CUMBERLAND COUNTY PENNSYLVANIA .s CERTIFICATE OF GRANT OF LETTERS - No. 2008- 00926 PA No. 21- 08- 0926 Es to to Of : ANITA M KISSINGER /First, Middle, Last) Late Of: CAMP HILL BOROUGH CUMBERLAND COUNTY Deceased Social Security No: 202-36-5289 WHEREAS, on the 15th day of September 2008 an instrument dated May 29th 1981 was admitted to probate as the last will of ANITA M KISSINGER lFirsr, Middle, Last) late of CAMP HILL BOROUGH, CUMBERLAND County, who died on the 5th day of September 2008 and WHEREAS, a true copy of the will as probated is annexed hereto. THEREFORE, I, GLENDA FARNER STRASBAUGH , Register of Wills in and for CUMBERLAND County, in the Commonwealth of Pennsylvania, hereby certify that I have this day granted Letters TESTAMENTARY to: LESTER G KISSINGER JR who has duly qualified as EXECUTOR(RIX) and has agreed to administer the estate according to law, all of which fully appears of record in my office at CUMBERLAND COUNTY COURTHOUSE, CARLISLE, PENNSYL VA NIA. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of my office on the 15th day of September 2004. 1 **NOTE** ALL NAMES ABOVE APPEAR (FIRST, MIDDLE, LAST) EXHIBIT C ?gIciLt ., . Tbl'.5 x1jeeb { Tax Parcel No. 01-21-0273-069 MADE THE day of Au4 y S? in the year two thousand eight (2008) BETWEEN ANITA M. KISSINGER, Grantor, AND JUANITA M. PANKO, Grantee, WITNESSETH that in consideration of No ($0.00) Dollars, in hand paid, the receipt whereof is hereby acknowledged, the said Grantor does hereby grant and convey to the said Grantee, her heirs and assigns, ALL THAT CERTAIN piece or parcel of land situate in the Borough of Camp Hill, Cumberland County, Commonwealth of Pennsylvania, bounded and described as follows, to wit: BEGINNING at a point marked by an iron pin at the easterly line of North 30"' Street at the northerly line of Lot No. 20, Block M, on the Plan of Lots hereinafter mentioned; THENCE nouhwardly along said line of North 30th Street 60 feet to an iron pin; THENCE eastwardly through a portion of Lot No. 18, Block M, 131.84 feet to a stake on the westerly line of Lot No. 4; THENCE by the latter line and the western line of Lot No. 3, Block M, southwardly at an interior angle of 87 degrees 29 minutes 65 feet to a stake at the corner of Lots No. 2, 19, and 20, Block M; THENCE westwardly at right angles along the northerly line of Lot No. 20, Block M, 122.25 feet to the place of BEGINNING BEING Lot No.; 19 and a small portion of Lot No. 18, Block M, on the Plan of Beverly Park, said Plan being recorded in Plan Book 3, Page 19, Cumberland County Records. HAVING THEREON. erected and one and one-half story brick dwelling house, known and numbered as 215 North 301h Street, Camp Hill, Pennsylvania. UNDER AND SUBJECT, NEVERTHELESS, to any and all covenants, conditions, easements, rights of way, restrictions and matters of prior record and any matter which a physical inspection or survey of the property would disclose. BEING THE SAME PREMISES which L. Edward Sprague and Janet M. Sprague, his wife, by deed dated August 28, 1961 and recorded September 16, 1961 in Deed Book H, Volume 20, Page 984 in the Office of the Recorder of Deeds of Cumberland i County, rante and conveyed unto Lester G. Kissinger 9 and Anita M. Kissinger. Lester G. Kissinger d ed October 15, 2005 thereby vesting title solely to Anita M. Kissinger, THIStIShArTRANSFER FROM MOTHER TO DAUGHTER AND IS HEREBY EXEMPT FROM PENNSYLVANIA TOGETHER Win a an singular the buildings, improvements, ways, streets, alleys, passages, waters, water-courses, rights, liberties, privileges, hereditaments and appurtenances whatsoever thereunto belonging, or in any wise appertaining and the reversions and remainders, rents, issues and profits thereof; and all the estate, right, title, interest, property, claim and demand whatsoever of them, the said Grantors, in law, equity, or otherwise howsoever, of, in, to or out of the same. TO HAVE AND TO HOLD the said lot or piece of ground above described, with the buildings and improvements thereon erected, hereditaments and premises hereby granted or mentioned, and intended so to be, with the appurtenances, unto the said Grantee, her heirs and assigns, to and for the only proper use and behoof of the said Grantee her heirs and assigns, forever. AND the said Grantor does hereby Warrant Specially the property hereby conveyed. IN WITNESS WHEREOF, said Grantor has hereunto set her hand and seal the day and year first above written. Signed, Sealed and Delivered in the Presence of Witness ANITA M. KISSINGE COMMONWEALTH OF PENNSYLVANIA : SS COUNTY OF ?Ov??ZY1 On this, the 2AJ day of ??. 2008, before me, a Notary Public, the undersigned officer, personally ap eared ANITA M. KISSINGER, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that she executed same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. 1JF1 "? - - - NOINM SEAL No ry Pu lic JOSHUA B. CLOUSER Notary PLUG HA NURG cm A WWW COMM My Commh:lon Exom Sep 15, 2008 i , CERTIFICATE OF RESIDENCE I do hereby certify that the precise residence and complete post office address of the within Grantee is: 2153 Bordeaux Court Harrisburg, PA 17112 Attom sy/Agent for Grantee . ROBERT P. ZIEGLER RECORDER OF DEEDS CUMBERLAND COUNTY 1 COURTHOUSE SQUARE CARLISLE, PA 17013 717-240-6370 Instrument Number - 200829194 Recorded On 8/28/2008 At 8:15:04 AM * Instrument Type - DEED Invoice Number - 27883 User ID - MBL * Grantor - KISSINGER, ANITA M * Grantee - PANKO, JUANITA M * Customer - CORNERSTSONE LAND * FEES STATE WRIT TAX $0.50 STATE JCS/ACCESS TO $10.00 JUSTICE RECORDING FEES - $12.50 RECORDER OF DEEDS AFFORDABLE HOUSING $11.50 COUNTY ARCHIVES FEE $2.00 ROD ARCHIVES FEE $3.00 CAMP HILL SCHOOL $0.00 DISTRICT CAMP HILL BORO $0.00 TOTAL PAID $39.50 I Certify this to be recorded in Cumberland County PA if RECORDER OF D * Total Pages - 4 Certification Page DO NOT DETACH This page is now part of this legal document. * - Information denoted by an asterisk may change during the verification process and may not be reflected on this page. ' y . , . iiu?i 111111111111111111111 b (2) . ' R MED-OFU OF 7HE P€ARY 'R - ! AMID: 3? ow8almo cam -P79.so Po flny CO 38017 1 R . . . Serratelli, Schiffnan, Brown & Calhoon, P. C. Paige Macdonald-Matthes, Esquire Pa. Attorney I.D. No. 66266 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 (717) 540-9170 (717) 540-5481 Attorneys for Defendant, Juanita M. Panko LESTER G. KISSINGER, JR., EXECUTOR, ESTATE OF ANITA KISSINGER, PLAINTIFF, V. JUANITA M. PANKO DEFENDANT : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 09-2034 CIVIL ACTION - LAW NOTICE TO PLEAD To: Lester G. Kissinger, Jr., Executor, Estate of Anita M. Kissinger c/o Richard E. Connell, Esquire BALL, MURREN & CONNELL 2303 Market Street Camp Hill, PA 17011 You are hereby notified to file a written response to the enclosed Preliminary Objections to Plaintiff's Complaint within twenty (20) days from service hereof or a judgment may be entered against you. Respectfully submitted, Ca&.ae c LJa b??-.LU?t.Q P11 Paige Macdonald-Matthes, Esquire Attorney ID No. 66266 SERRATELLI, SCHIFFMAN, BROWN & CALHOON, P.C. 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 (717) 540-9170 Date: April 23, 2009 Serratelli, Schiffnan, Brown & Calhoon, P. C. Paige Macdonald-Matthes, Esquire Pa. Attorney I.D. No. 66266 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 (717) 540-9170 (717) 540-5481 Attorneys for Defendant, Juanita M. Panko LESTER G. KISSINGER, JR., EXECUTOR, ESTATE OF ANITA KISSINGER, PLAINTIFF, V. JUANITA M. PANKO, DEFENDANT : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 09-2034 CIVIL ACTION - LAW DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, comes Defendant, Juanita M. Panko, (hereinafter "Defendant"), by and through her counsel, Serratelli, Schiffinan, Brown & Calhoon, P.C., and files her Preliminary Objections to Plaintiff's Complaint, and in support thereof aver as follows: PRELIMINARY OBJECTION TO COUNT I OF PLAINTIFF'S COMPLAINT- FAILURE OF PLEADING TO CONFORM TO LAW OR RULE OF COURT, Pa. R. Civ. P. 1028(a)(2) 1. A review of Count I of Plaintiffs Complaint reveals that it purports to state a claim for "Fraud, Intentional Misrepresentation, Duress, Coercion and Undue Influence." 2. A cause of action for fraud and a cause of action for Intentional Misrepresentation are separate and distinct causes of action. 3. There is no recognized independent cause of action for "duress," "coercion," or "undue influence" under Pennsylvania law. 4. The Pennsylvania Rules of Civil Procedure require that each valid cause of action and any special damage related thereto must be stated in a separate count containing a demand for relief. See Pa. R.Civ. P. 1020(a). (Emphasis added). 5. Count I of Plaintiff's Complaint fails to conform to law or rule of court, specifically Pa. R.Civ. P. 1020(a), and should be dismissed accordingly. WHEREFORE, Defendant, Juanita M. Panko respectfully requests that this Honorable Court sustain her Preliminary Objection to Count I of Plaintiff's Complaint, dismiss Count I of Plaintiff's Complaint with prejudice and further award Defendant all such other relief as is proper and just. PRELIMINARY OBJECTION TO COUNT I OF PLAINTIFF'S COMPLAINT- INSUFFICIENT SPECIFICITY OF PLEADING, Pa. R. Civ. P. 1028(a)(3) 6. The averments set forth in paragraphs 1 through 5 are incorporated by reference as if more fully set forth at length herein. 7. As previously stated herein, there is no recognized independent cause of action for "duress," "coercion," or "undue influence" under Pennsylvania law. 8. Assuming arguendo, that a valid and independent cause of action does exist for "duress," "coercion," or "undue influence" under Pennsylvania law (which Plaintiff does not concede), Plaintiff has failed to plead has failed to plead any facts with particularity that would support a cause of action for "duress," "coercion," or undue influence. 9. In Count I of Plaintiff's Complaint, Plaintiff also purports to set forth a cause of action for fraud relying on the averments set forth in paragraphs 1 through 7 of his Complaint. 10. A review of paragraphs 1 through 7 of Plaintiff's Complaint reveal that Plaintiff has failed to plead any facts with particularity that would support a cause of action for fraud. 11. Pa. R.Civ. P. 1019(b) specifically requires that averments of fraud shall be averred with particularity. 12. Without the benefit of a more specific pleading, Defendant is unable to respond to Plaintiff's claims set forth in Count I of his Complaint and would further be prejudiced if she were required to do in the absence of more specific factual allegations which would support Plaintiff's claim. WHEREFORE, Defendant, Juanita A Panko respectfully requests that this Honorable Court sustain her Preliminary Objection to Count I of Plaintiff's Complaint, dismiss Count I of Plaintiff's Complaint with prejudice and further award Defendant all such other relief as is proper and just. PRELIMINARY OBJECTION TO COUNT I OF PLAINTIFF'S COMPLAINT- LEGAL INSUFFICIENCY OF PLEADING, Pa. R. Civ. P. 1028(a)(4) 13. The averments set forth in paragraphs 1 through 12 are incorporated by reference as if more fully set forth at length herein. 14. As previously stated herein, there is no valid, recognized independent cause of action for "duress" or "coercion" or "undue influence" under Pennsylvania law. 15. As there is no valid, recognized independent cause of action for "duress", "coercion" or "undue influence" under Pennsylvania law, Count I of Plaintiffs Complaint fails to state a legal cause of action upon which relief can be granted. 16. A review of Count I of Plaintiff's Complaint reveals that Plaintiff has failed to plead any facts with particularity that would support a cause of action for fraud. Specifically, Plaintiff has not pled any facts that would support a finding that the traditional test for fraud is satisfied, to wit: (1) a misrepresentation; (2) a fraudulent utterance; (3) an intention by the maker that the recipient will thereby be induced to act; (4) justifiable reliance by the recipient upon the misrepresentation; and (5) damage to the recipient as a proximate result. See e.g. Glover v. Severing, 946 A.2d 710 (Pa. Super. 2008). 17. A further review of Count I of Plaintiff's Complaint reveals that Plaintiff has similarly failed to plead any facts with particularity that would support a cause of action for intentional misrepresentation. Specifically, Plaintiff has not pled any facts that would support a finding that the Defendant made any (1) representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it was true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) resulting injury proximately caused by the reliance. See e.g. Eiser v. Brown & Williamson Tobacco Corporation, 2006 WL 933394 (Pa. Super. 2006) citing Presbyterian Medical Center v. Budd, 832 A.2d 1066, 1072 (Pa. Super. 2003). 18. Count I of Plaintiff's Complaint fails to state a cause of action in fraud, intentional misrepresentation or any other cause of action against Defendant and thus should be dismissed accordingly. WHEREFORE, Defendant, Juanita M. Panko respectfully requests that this Honorable Court sustain her Preliminary Objection to Count I of Plaintiff's Complaint, dismiss Count I of Plaintiff's Complaint with prejudice and further award Defendant all such other relief as is proper and just. PRELIMINARY OBJECTION TO COUNT II OF PLAINTIFF'S COMPLAINT- LEGAL INSUFFICIENCY OF PLEADING, Pa. R. Civ. P. 1028(a)(4) 19. The averments set forth in paragraphs 1 through 18 are incorporated by reference as if more fully set forth at length herein. 20. A review of Count II of Plaintiff's Complaint reveals that Plaintiff purports to state a claim against Defendant for "lack of capacity." 21. There is no recognized independent cause of action for "lack of capacity" under Pennsylvania law. 22. "Lack of capacity" is not an independent legal cause of action but rather is a challenge to the validity of a will or an affirmative defense to contract. 23. As there is no recognized independent cause of action for "lack of capacity" under Pennsylvania law, Count II of Plaintiffs Complaint fails to state a legal cause of action upon which relief can be granted. WHEREFORE, Defendant, Juanita M. Panko respectfully requests that this Honorable Court sustain her Preliminary Objection to Count II of Plaintiff's Complaint, dismiss Count II of Plaintiff's Complaint with prejudice and further award Defendant all such other relief as is proper and just. PRELIMINARY OBJECTION TO ALL COUNTS OF PLAINTIFF'S COMPLAINT- LEGAL INSUFFICIENCY OF PLEADING, Pa. TL Civ. P. 1028(a)(4) 24. The averments set forth in paragraphs I through 23 are incorporated by reference as if more fully set forth at length herein. 25. In his prayers for relief (ad adamnum clauses) on pages 3 and 4 of his Complaint, Plaintiff requests, inter alia, "an award of attorney's fees incurred by the estate to maintain this action." 26. A review of Plaintiff's Complaint reveals that Plaintiff has filed his Complaint as an action at law not an action in equity. 27. Pennsylvania consistently follows the American Rule which provides that there can be no recovery of attorney's fees from an adverse party unless there is express statutory authorization, a clear agreement of the parties, or some other established condition. Otherwise, attorney's fees incurred in litigation cannot be recovered from the losing party. See Merlino v. Delaware County, 556 Pa. 422, 425, 728 A.2d 949, 950 (1999); Sheriff v. Sheri ff, 2002 Pa. Super, 207, 802 A.2d 644 (2002). 28. There is no applicable statutory authorization for the recovery of Plaintiff's attorney's fees. 29. There is no agreement between the parties authorizing the recovery by Plaintiff of attorney's fees. 30. Plaintiff's claims for attorney's fees are not valid under Pennsylvania law and should be stricken. WHEREFORE, Defendant, Juanita M. Panko, respectfully requests that this Honorable Court sustain her Preliminary Objection to Plaintiff's claim for attorney's fees, strike the same from Plaintiff's Complaint, and award Defendant all such other relief as is proper and just. Respectfully submitted, Date: April 23, 2009 ` aige Macdonald-Matthes, Esquire Pa. Attorney I.D. No. 66266 SERRATELLI, SCHIFFMAN, BROWN & CALHOON, P.C. 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 (717) 540-9170 Attorneys for Defendant VERIFICATION I, Juanita M. Panko verify that the statements made in the foregoing Preliminary Objections to Plaintiff's Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Date: ? . 200q to M. Panko CERTIFICATE OF SERVICE I, Paige Macdonald-Matthes, Esquire, do hereby certify that on this 23rd day of April, 2009, I served a copy of Defendant's Preliminary Objections to Plaintiff's Complaint via United States Mail, First Class, postage pre-paid, to the following person(s): Richard E. Connell, Esquire BALL, MURREN & CONNELL 2303 Market Street Camp Hill, PA 17011 Attorney for Plaintiff. Paige Macdonald-Matthes, Esquire FIL' F OF THE. F, _` ;' ? .,,i 21503- APR 23 F; l .: 3 F ,. `Y,ESj.}'f, Paige Macdonald-Matthes, Esquire Serratelli, Schiff nan, Brown & Calhoon, P. C. Pa. Attorney I. D. No. 66266 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 (717) 540-9170 (717) 540-5481 Attorneys for Defendant, Juanita M. Panko LESTER G. KISSINGER, JR., : IN THE COURT OF COMMON PLEAS EXECUTOR, ESTATE OF ANITA : CUMBERLAND COUNTY, PENNSYLVANIA KISSINGER, . PLAINTIFF, V. : DOCKET NO. 09-2034 CIVIL ACTION - LAW JUANITA M. PANKO, DEFENDANT DEFENDANT'S MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL AND NOW, comes Defendant, Juanita M. Panko, by and through her counsel, Serratelli, Schiff nan, Brown & Calhoon, P. C, and files her Motion to Disqualify Plaintiff's Counsel, and in support thereof aver as follows: Parties 1. Defendant/Movant is Juanita M. Panko (hereinafter "Movant"), who resides at 2153 Bordeaux Court, Harrisburg, Dauphin County, Pennsylvania. 2. Plaintiff/Respondent is Lester G. Kissinger, Jr. (hereinafter "Respondent"), who resides at 11 Longwood Drive, Mechanicsburg, Cumberland County, Pennsylvania. Background 3. Anita Kissinger (hereinafter "Decedent") died on September 5, 2008 leaving a Will dated May 29, 1981 that was admitted to probate. A copy of the Will is attached hereto as Exhibit "A." 4. In accordance with the Decedent's Will, Respondent currently serves as the Executor of the Estate of Anita Kissinger. 5. On or about April 1, 2009, Respondent filed a "Complaint for Cancellation of Deed" (hereinafter "Complaint") to the above captioned docket by and through his counsel, Richard Connell, Esquire of the law firm, Ball, Murren & Connell. 6. In the Complaint, Respondent alleges that prior to her death the Decedent conveyed her real property to Movant and that Movant "coerced" Decedent into signing the Deed conveying her real property to Movant. Without admitting the truth of any of the averments set forth therein, a true and correct copy of the Complaint (in response to which Movant has filed Preliminary Objections) is attached hereto as Exhibit "B." Plaintiffs Counsel's Conflict of Interest 7. Upon information and belief, Respondent's personal legal counsel is Richard E. Connell, Esquire (hereinafter "Connell") of the law firm of Ball, Murren and Connell. 8. On or about May 27, 2008, Respondent requested legal counsel from Connell on behalf of himself and his two siblings, Movant and Jacob T. Kissinger (hereinafter "JTK"), concerning their mother (the Decedent) who was still living at the time. 9. In a letter dated May 27, 2008, the Respondent wrote a letter to Connell on behalf of himself and his two siblings requesting that Connell provide them with legal advice concerning their mother. In his letter, Respondent specifically requested as follows: "If you can give us any other advice on things we should be aware of, it would be appreciated." A true and correct copy of the Respondent's May 27, 2008 letter is attached hereto and is marked as Exhibit "C." (Emphasis added). 10. On or about June 10, 2008, Movant, Respondent, JTK (hereinafter collectively the "Kissinger siblings"), and the Decedent all met with Connell at the Decedent's home, 215 N. 30'' Street, Camp Hill, PA. During the meeting, Connell acted as legal counsel for each of the Kissinger siblings and in so doing rendered legal advice to each of the Kissinger siblings. 11. Upon information and belief, Connell met a second time with Respondent and the Decedent to review the Decedent's Will. 12. Rule 1.9 of the Rules of Professional Conduct regarding duties to former clients prohibit Connell and Ball, Murren & Connell from representing the Respondent in a matter in which Respondent's interests are materially adverse to the interests of Movant, the former client of Connell and the law firm, Ball, Murren & Connell. Specifically, Rule 1.9(a) provides as follows: A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent. 13. A review of the Complaint filed by Respondent through Connell and Ball, Murren & Connell against Movant reveals that Respondent's interests are materially adverse to the interests of Movant, the former client of Connell and Ball, Murren & Connell. 14. Neither Connell, nor any member of his firm obtained consent from Movant for their representation of Respondent in the prosecution of his claim against Movant. 15. Movant has not consented to either Connell or Ball, Murren & Connell representing Respondent in this matter. 16. As recently as January 26, 2009, Connell has represented to a member of the undersigned counsel's firm that he is prepared to testify concerning matters that were allegedly discussed between himself, the Respondent and the Decedent concerning her Will and the disposition of her property during the second meeting referred to in paragraph 9 herein. 17. Pursuant to Rule 3.7 of the Rules of Professional Conduct provides in relevant part that a lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness. 18. On January 26, 2009, Attorney Steven J. Schiffman sent a letter to Connell in which he, inter alia, brought to Connell's attention the inherent conflict of interest both Connell and his firm had in proceeding further with any litigation on behalf of Respondent against Movant. As the January 26, 2009 letter from counsel included other references to settlement negotiations between the Parties, a copy of the January 26, 2009 letter is not attached hereto as an Exhibit, but will be produced as an exhibit, if necessary, during the hearing on this Motion. 19. As is evidenced by the Complaint, both Connell and the law firm of Ball, Murren & Connell failed to recognize their inherent conflict of interest they have in representing the Respondent in this matter. 20. Rule 1.10 of the Rules of Professional Conduct provides that "while lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing along would be prohibited from doing so by the Rules." 21. For the same reasons that Connell is disqualified from serving as Respondent's counsel in this case, so too is the law firm of Ball, Murren & Connell. 22. Movant has been and will continue to be prejudiced by virtue of the fact that confidential information which may have been gained by Connell is imputable to other members of his firm. 23. The above captioned action has not been previously assigned to or heard by any Judge of this Honorable Court. 24. The undersigned counsel has contacted Plaintiff/Respondent's counsel, Richard E. Connell, Esquire, regarding the substance of the within Motion and as of this time he has not responded as to whether or not he will concur in the same. WHEREFORE, Defendant, Juanita M. Panko, respectfully requests that this Honorable Court grant the relief requested in the within Motion, issue an Order disqualifying both Richard E. Connell, Esquire and the law firm of Ball, Murren & Connell from further representation of Respondent in this matter, and further award Movant all such other relief as is proper and just. Date: April 30, 2009 Respectfully submitted, Paige Macdonald-Matthes, Esquire Pa. Attorney I.D. No. 66266 SERRATELLI, SCHIFFMAN, BROWN & CALHOON, P.C. 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 (717) 540-9170 Attorneys for Defendant, Juanita Panko VERIFICATION I, Juanita M. Panko verify that the statements made in the foregoing Motion to Disqualify Counsel are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unworn falsification to authorities. Date: AhAj -19- 1 a j-do l G?lc• J a M. Panko CERTIFICATE OF SERVICE I, Paige Macdonald-Matthes, Esquire, do hereby certify that on this 30th day of April, 2009, I served a copy of Defendant's Motion to Disqualify via facsimile and United States Mail, First Class, postage pre-paid, to the following person(s): Richard E. Connell, Esquire BALL, MURREN & CONNELL 2303 Market Street Camp Hill, PA 17011 717-232-2142 facsimile Attorney for Plaintiff. Paige Macdonald-Matthes, Esquire C r co Np a3 C .?Z z n LAST WILL AND TESTAMENT OF ANITA M. KISSINGER I, ANITA M. KISSINGER, a resident of the Commonwealth of Pennsylvania, being of sound and disposing mind and memory, do hereby make, publish and declare this instrument to be my LAST WILL AND TESTAMENT. I hereby revoke any and all wills and codicils heretofore made. I IDENTIFICATIONS AND DEFINITIONS I am married to LESTER G. KISSINGER, hereinafter referred to as "my Spouse." We have three children, LESTER G. KISSINGER, JR., JUANITA M. KISSINGER and JACOB T. KISSINGER. References in this Will to "my Children" include these three children and any other lawful children born to or adopted by me. The following definitions obtain in any use of the terms in this Will: 1. "Descendants" means the immediate and remote lawful, lineal descendants of the person referred to, and it means those descendants in being at the time they must be ascertained in order to give effect to the reference to them, whether they are born before or after my death or of any other person. The persons who take under this Will as Descendants shall take by right of representation, in accordance with the rule of per stirpes distribution and not in accordance with the rule of per capita distribution. Persons legally adopted when under the age of fourteen years shall not be differentiated from blood descendants for any purpose. 2. "Survive me" is to be construed to mean that the person referred to must survive me by thirty days. If the person referred to dies within thirty days of my death, the reference to him shall be construed as if he had failed to survive me. 3. As used in this Will, the words "Executor, "he," "him," "his," and the like shall be taken as generic and applicable to a natural person of either sex or a corporate person or other legal entity. II PAYMENT OF DEBTS AND TAXES I direct my Executor to pay the following as soon after my death as may be practicable: 1. All of my just debts and the expenses of my last illness, funeral and of the administration of my estate; but my Executor need not accelerate and pay those urnnatured obligations which, in his opinion, it might be proper and more advantageous to retain or renew and pay as they become due and payable. 2. All inheritance, transfer, estate and similar taxes (including interest and penalties) assessed or payable by reason of my death, on any property or interest in my estate for the purpose of computing taxes. My executor shall not require any beneficiary under this will to reimburse my estate for taxes paid on property passing under the terms of this Will. III RESIDUARY ESTATE A. I define "my Residuary Estate" as all of my property after the payment of debts and taxes under Article II above, including real and personal property, whenever acquired by me, property as to which effective disposition is not otherwise made in this Will or by operation of law, and property as to which I have an option to purchase or a reversionary interest, but excluding property as to which I have no interest other than a power of appointment. B. I give my Residuary Estate to my Spouse if he survives me. C. If my Spouse does not survive me, I direct my Executor to divide my Residuary Estate into equal shares and to distribute'those shares as follows: 1. one share to each of my Children who survive me. 2. one share to be divided equally among the then living descendants of each of my Children who do not survive me. IV APPOINTMENT' OF EXECUTOR I nominate and appoint my Spouse, LESTER G. KISSINGER, as Executor of this my LAST WILL AND TEST MENT. If LESTER G. KISSINGER is unab,10 or unwilling to. serve. in'this-capacity, I appoint my son, s't G ?-I,?f ,7R to serve: instead I request that my opinion , r` incitxf ii '`f? I'"7ti h per`" ash"tea thxirity, withou' the order of any court and upon such terms and under such conditions. as my Executor shall deem best for the proper settlement of my estate; to bargain, sell at public or private sale, convey, transfer, deed, t mortgAge, lease, exchange, pledge, manage and deal with any and all property belonging to my estate; to campromise, settle, adjust, release and discharge any and all obligations or claims in favor of or against my estate; and to borrow money for the payment of inheritance and estate taxes or for any other purpose. Without in any way limiting the scope of the powers enumerated herein of my Executor, I hereby specifically give to him full power to retain any and all securities or property owned by me at the time of my decease whenever, in his absolute and uncontrolled discretion, such a course shall seem to him to be best, without liability for depreciation or loss, and free from investment restrictions incident to executorship, whether imposed by common law or statute.,. In the execution of his duties and powers as Executor he shall hgve the power to comply with all legal requirements as to the executioh and delivery of deeds and all other writings, documents or formalities without the order of any court; and he shall furnish a statement of receipts and disbursements at least annually to each person then entitled to receive income or property from my estate. IN WITNESS WHEREOF, I have at Carlisle Barracks, Pennsylvania, this :I... day of ..... .. ......., 1981, set my hand and seal to this my LAST WILL AND TESTAMENT consisting of three (3) typewritten pages. ANITA M. KI5SINGER, Tes for Signed, sealed, published and declared by the Testator, ANITA M. KISSINGER, as and for her Last Will and Testament, in the presence of us, who, at her request, in her presence and in the presence bf each other, have hereunto subscribed our names as witnesses. NAME ADDRESS Cr Al .5.. ..... ' ...... ? >'?.Q, G(ShG? C?ar.'s? ......sr.. CU*"*IEALIH OF PENNSYLVANIA) ss: COUNTY OF CMBF.RT A ) I, ANITA M. KISSINGER, Testator, whose name is signed to the attached or foregoing instrument, having been duly qualified according to law, do hereby acknowledge that I signed and executed the instrument as my Last will; that I signed it willingly; and that I signed it as my free and voluntary act for the purposes therein expressed. Sworn or affirmed to and ackL ledged before me, by ANITA M. KISSINGER, the Testator, this .?:... day of ........... , 1981. ANITA M. KISSINGER, Testator 1 0 .,........ ................ Notary Public (ilk A. Gabner, lYofa Affidavit My WdWm wpl Cumbe nd Cw ty Member, Penn'X10 iax0l"" Feb. 5, 1983 COMMONWEALTH OF PENNSYLVANIA) ss. A.2wiaticn of F?otar.'ta ) COUNTY OF CUMERLAND We, ?f'OStI . ?: ?!z T! Z... .., ..I,'J?; and chaef ;?!. (jf f?;rr;.. • .. the witnesses whose names are signed to the attached or foregoing instrument, being duly qualified according to law, do depose and say that we were present and saw Testator sign and execute the instrument as her Last will; that ANITA M. KISSINGER, signed willingly and that she executed it as her free and voluntary act for the purposes therein expressed; that each of us in the hearing and sight of the Testator signed the will as witnesses; and that to the best of our knowledge the Testator was at that time 18 or more years of age, of sound mind and under no constraint or undue influence. Sworn or affirmed to gnd pubscribed to befor by 160f tJL 14 .?:? T / z , , ?'f,?/; ?•-1,cr N ../? " ip ey 0 5 r and 4<ik?c?r/lJI. ?r? rc/ - witnesses, this day of ..., .......... 1981. wz S ? . .WITNESS .. ...?w .......;..... ... . WITNESS 4? otary Public -?' a ' J. ..... nb,a, A ? Gs b ?ta,y ?btie COM M ben mession? 'XPI ? Fe ad Coin, ' 4- 6 f kZ. ? 0 0 6 LESTER G. KISSINGER, JR., : IN THE COURT OF COMMON PLEAS EXECUTOR, ESTATE OF : CUMBERLAND COUNTY, PENNSYLVANIA ANITA M. KISSINGER, Plaintiff ' a JUANITA M. PANKO, NO. Oq - _ 0?03?1 Civil ?'In ?= Defendant NOTICE TO: Juanita M. Panko c/o Steven J. Schiffinan, Esquire Serratelli, Schiffman, Brown & Calhoon, P.C. Suite 201 - 2080 Linglestown Road Harrisburg, PA 17110-9693 TRUE COY FROM RECORD In Testimony kvhareof, i h&re unto set my hand and the seal of said Lourt at Carlisle, Pa. . 's ......L ...... day f...April ........ o2W .w«... ..t...: YJ • s YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 (717) 249-3166 LESTER G. KISSINGER, JR., EXECUTOR, ESTATE OF ANITA M. KISSINGER, Plaintiff JUANITA M. PANKO, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. y, / 7-croo COMPLAINT FOR CANCELLATION OF DEED AND NOW, this 1" day of April 2009, comes the Plaintiff, Lester G. Kissinger, Jr., by his attorneys, Ball, Murren & Connell, and files this Complaint seeking equitable relief, the statement of which is as follows: 1. The Plaintiff, Lester G. Kissinger, Jr., an adult individual, Executor of the Estate of Anita M. Kissinger, resides at 11 Longwood Drive, Mechanicsburg, Pennsylvania. 2. Defendant, Juanita M. Panko, an adult, resides at 2153 Bordeaux Court, Harrisburg, Pennsylvania. 3. Anita M. Kissinger (Decedent) died on September 5, 2008 leaving a Will dated May 29, 1981 which was admitted to probate. A copy of the Will is attached as Exhibit "A" and is incorporated herein by reference. 4. Plaintiff, Lester G. Kissinger, Jr. was appointed executor of the Estate of Anita M. Kissinger, Deceased, by decree dated September 15, 2008 of the Register of Wills, Cumberland County, Pennsylvania. A true and correct copy of the Letters Testamentary is attached as Exhibit "B" and is incorporated herein by reference. 5. On August 22, 2008, Deceased allegedly signed an instrument purporting to be a fee simple deed which was recorded on August 28, 2008 in the Office of Recorder of Deeds of Cumberland County in Beed ?TR , , Page NO A true and correct copy of said deed is attached hereto as Exhibit "C". c3b?o IQ 4 6. The deed purports to convey to Defendant all that certain piece of ground, with the buildings and improvements erected thereon, known as 215 North 30'h Street, Camp Hill, Pennsylvania (the "property"), for no consideration. 7. At the time the deed was signed, Deceased was in her 80`" year, suffered from an advanced terminal cancer condition, namely metastatic biliary cholangiocarcinoma, was weak in body and mind, being at the time bedridden, had pain throughout her body in her stomach, joints and bones, was medicated and sedated, including among the prescribed and administered drugs Lorazepan for agitation, Morphine for pain, and Ambien, a sleeping pill, was easily influenced and was not possessed of sufficient mental capacity to comprehend the true meaning of the deed or the effect of her act. COUNTI FRAUD, INTENTIONAL MISREPRESENTATION, DURESS, COERCION AND UNDUE INFLUENCE 8. Paragraphs 1 through 7 are incorporated by reference as though fully set forth. 9. At the time the deed was signed, a confidential relationship existed between the Deceased on the one hand and Defendant on the other in that Defendant occupied a superior and overmastering position over Deceased, intellectually and physically, and had opportunity to use and did use the superiority to the disadvantage of the Deceased. 10. Defendant induced Deceased to execute the deed through fraud, intentional misrepresentation, duress, coercion and undue influence. 11. The acts committed by Defendant which constituted fraud, intentional misrepresentation, duress, coercion and undue influence include, but are not limited to, excessive importunity and intentional misrepresentations and deceit all of which were directed towards or against the Deceased. 12. The aforesaid acts were committed by Defendant at or near the time of execution of the deed and for a period of time immediately prior thereto. 13. The aforesaid acts were committed by Defendant with the sole purpose of leading Deceased to execute the deed in favor of Defendant, which Decedent otherwise would not have done. 14. Defendant procured the execution of the deed by fraud, intentional misrepresentation, duress, coercion and undue influence as aforesaid and with intent to cheat and defraud Deceased and two of the residuary heirs of the Deceased's estate, namely Lester G. Kissinger, Jr. and Jacob T. Kissinger, and now claims the property as the fruit of the aforesaid wrongful acts. 2 WHEREFORE, Plaintiff prays: (a) that the deed from Anita M. Kissinger to Defendant, Juanita M. Panko, be declared null and void and that Defendant be ordered to immediately restore all the estate and premises described in the deed to the Plaintiff as executor of the estate of Anita M. Kissinger; (b) for such other equitable relief as the court may deem necessary and proper including costs of suit to include the award of attorneys' fees incurred by the estate to maintain this action. COUNT II LACK OF CAPACITY 15. Paragraphs 1 through 14 are incorporated herein as if fully set forth. 16. At the time of the alleged conveyance, Deceased was in an acute, confused mental state and was unable to attend to day-to-day business activities, any details relating to property which she owned or any normal activities of daily living. 17. Deceased suffered tremendous physical pain which required administration of pain killing drugs and anxiety reducing medication which induced mental confusion and an inability to communicate meaningfully. 18. At the time of the alleged conveyance, Deceased had weakened intellect evidenced by confusion due to stress, fatigue and the ravaging effects of her illness and lacked the ability to comprehend matters involving the slightest complexity. 19. At the time of the alleged conveyance, Deceased was too weak, disoriented and medicated to have known what was presented to her for signing and was too weak to have understood an oral review. 20. Due to the terminal state of the Deceased, the manner of creation of the deed, her confusion and inability to conduct even the simplest of business activities, she could not have knowingly signed the document intending to, in significant measure, undermine her long-settled testamentary plan to divide her entire estate, equally, among her three children. WHEREFORE, Plaintiff prays: 3 (a) that the deed from Anita M. Kissinger to Defendant, Juanita M. Panko, be declared null and void and that Defendant be ordered to immediately restore all the estate and premises described in the deed to the Plaintiff as executor of the estate of Anita M. Kissinger; (b) for such other equitable relief as the court may deem necessary and proper including costs of suit to include the award of attorneys' fees incurred by the estate to maintain this action. Respectfully Submitted, BALL, MURREN & CONNELL BY Richard E. Conne squire I.D. # 21542 2303 Market Street Camp Hill, PA 17011 (717) 232-8731 Attorney for Plaintiff Date ?J ?/; ?1S D y 4 VERIFICATION I, LESTER G. KISSINGER, JR., Executor of the Estate of Anita M. Kissinger, verify that the statements in the foregoing document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unworn falsification to authorities. LESTER G. SSINGER, ., E cutor of the Estate of Anita M. Kissinger Date 3 3?DG?' EXHIBIT A LAST WILL AND TESTAMENT OF ANITA M. KISSINGER I, ANITA M. KISSINGER, a resident of the Commonwealth of Pennsylvania, being of sound and disposing mind and memory, do hereby make, publish and declare this instrument to be my LAST WILL AND TESTAMENT. I hereby revoke any and all wills and codicils heretofore made. I IDENTIFICATIONS AND DEFINITIONS I am married to LESSTER G. KISSINGER, hereinafter referred to as "my Spouse." We have three children, LESTER G. KISSINGER, JR., JUANITA M. KISSINGER and JACOB T. KISSINGER. References in this Will to "my Children" include these three children and any other lawful children born to or adopted by me. The following definitions obtain in any use of the terms in this Will: 1. "Descendants" means the immediate and remote lawful, lineal descendants of the person referred to, and it means those descendants in being at the time they must be ascertained in order to give effect to the reference to them, whether they are born before or after my death or of any other person. The persons who take under this Will as Descendants shall take by right of representation, in accordance with the rule of per stirpes distribution and not in accordance with the rule of per capita distribution. Persons legally adopted when under the age of fourteen years shall not be differentiated from blood descendants for any purpose. 2. "Survive me" is to be construed to mean that the person referred to must survive me by thirty days. If the person referred to dies within thirty days of my death, the reference to him shall be construed as if he had failed to survive me. 3. As used in this Will, the words "Executor," "he," "him," "his," and the like shall be taken as generic and applicable to a natural person of either sex or a corporate person or other legal entity. II PAYMENT OF DEBTS AND TAXES I direct my Executor to pay the following as soon after my death as may be practicable: 1. All of my just debts and the expenses of my last illness, funeral and of the administration of my estate; but my Executor need not accelerate and pay those unmatured obligations which, in his opinion, it might be proper and more advantageous to retain or renew and pay as they become due and payable. 2. All inheritance, transfer, estate and similar taxes (including interest and penalties) assessed or payable by reason of my death, on any property or interest in my estate for the purpose of computing taxes. My executor shall not require any beneficiary under this will to reimburse my estate for taxes paid on property passing under the terms of this Will. III RESIDUARY ESTATE A. I define "my Residuary Estate" as all of my property after the payment of debts and taxes under Article II above, including real and personal property, whenever acquired by me, property as to which effective disposition is not otherwise made in this Will or by operation of law, and property as to which I have an option to purchase or a reversionary interest, but excluding property as to which I have no interest other than a power of appointment. B. I give my Residuary Estate to my Spouse if he survives me. C. If my Spouse does not survive me, I direct my Executor to divide my Residuary Estate into equal shares and to distribute'those shares as follows: 1. one share to each of my Children who survive me. 2. one share to be divided equally among the then living descendants of each of my Children who do not survive me. IV APPOINTMENT OF EXECUTOR I nominate and appoint my Spouse, LESTER G. KISSINGER, as Executor of this my LAST WILL AND TESTAMENT. If LESTER G. KISSINGER is unable qr uflwilling to. serve in_this- capacity,, I appoint my son, to serve instead I request that my hc?Llt bond or fi rthexeon. I M. r erye-A41 Y S = mid. CIA his opinion ., 7w• Y, n- i •- .iE'3iEt'?> 7Zr7L•L(3LlVax cu au ..zc.. va.s?e.n. ?... ?+,t # - .- - - . ?... i3rciud r ft '"?i ht; pcr er` aiic 'aiiaority, withot:t the order of any court and upon such terms and under such conditions. as my Executor shall deem best for the proper settlement of my estate; to bargain, sell at public or private sale, convey, transfer, deed, iw- mortgage, lease, exchange, pledge, manage and deal with any and all property belonging to my estate; to compromise, settle, adjust, release and discharge any and all obligations or claims in favor of or against my estate; and to borrow money for the payment of inheritance and estate taxes or for any other purpose. Without in any way limiting the scope of the powers enumerated herein of my Executor, I hereby specifically give to him full power to retain any and all securities or property owned by me at the time of my decease whenever, in his absolute and uncontrolled discretion, such a course shall seem to him to be best, without liability for depreciation or loss, and free from investment restrictions incident to executorship, whether imposed by common law or statute.;: In the execution of his duties and powers as Executor he shall hive the power to comply with all legal requirements as to the executioh and delivery of deeds and all other writings, documents or formalities without the order of any court; and he shall furnish a statement of receipts and disbursements at least annually to each person then entitled to receive income or property from my estate. IN WITNESS WHEREOF, I have at Carlisle Barracks, Pennsylvania, this .? q.. day of ..... ......., 1981, set my hand and seal to this my LAST WILL AND TESTAMENT consisting of three (3) typewritten pages. ....... ANITA M. KISSIN.GER, Tes for Signed, sealed, published and declared by the Testator, ANITA M. KISSINGER, as and for her Last Will and Testament, in the presence of us, who, at her request, in her presence and in the presence 6f each other, have hereunto subscribed our names as witnesses. NAME ? ......... ADDRESS ... rY7 ?. ..,. I' Q, ll5A!? ?grl?s/p 8.4ft,-r t5-, 11-4 COMMONWEAL'IH OF PENNSYLVANIA) SS: COUNTY OF C[I43EPI,AND ) I, ANITA M. KISSINGER, Testator, whose name is signed to the attached or foregoing instrument, having been duly qualified according to law, do hereby acknowledge that I signed and executed the instrument as my Last Will; that I signed it willingly; and that I signed it as my free and voluntary act for the purposes therein expressed. Sworn or affirmed to and ackn,qwledged before me, by ANITA M. KISSINGER, the Testator, this .?`:... day of ...........1 1981. (SEAL) ANITA M. KISSINGER, Testator .,...... ................ Notary Public pia A Gabner, Nota Affidavit ' mk' n Twp, Cumberland County Ission Member Pennsylvania v1res Feb. 5, 1983 COMMONWEALTH OF PENNSYLVANIA) ss : Azociation a! Zotar,. COUNTY OF CUKBERLAND e, ) We ../OSfa ?. 0,--i i Z Ce?4k cyv 2 _ ,? A .thae? • M-1 '?. . , •the witnesses whose names are signed to the attached or foregoing instrument, being duly qualified according to law, do depose and say that we were present and saw Testator sign and execute the instrument as her Last Will; that ANITA M. KISSINGER, signed willingly and that she executed it as her free and voluntary act for the purposes therein expressed; that each of us in the hearing and sight of the Testator signed the will as witnesses; and that to the best of our knowledge the Testator was at that time 18 or more years of age, of sound mind and under no constraint or undue influence. Sworn or affirmed to gndpubscribed to before e b 1?.Qs *d' :. /} - ; ? 0 5 and .:. 4< .l :/ylr.lr? rd . r witnesses, this ay of .... ?': ...... ......... , 1981. ?2- ...... ??:............... ... . WI S . WITNES?S??/ WITNESS (SEAL) ... . otary Public N" Qk* A. T ner, y ?e My ommiss. wD., Cumberland Member, Prn; .. "". t*as Feb 5, 1983 a"d1'i#ion nr EXHIBIT B REGISTER OF WILLS CUMBERLAND COUNTY PENNSYLVANIA CERTIFICATE OF GRANT OF LETTERS No. 2008- 00926 PA No. 21- 08- 0926 Estate Of : ANITA M K/SSINGER /first, Middle, Lest) Late Of: CAMP HILL BOROUGH CUMBERLAND COUNTY Deceased Social Security No: 202-36-5289 WHEREAS, on the 15th day of September 2008 an instrument dated May 29th 1981 was admitted to probate as the last will of ANITA M KISSINGER !First, Middle, Lest) late of CAMP HILL BOROUGH, CUMBERLAND County, who died on the 5th day of September 2008 and WHEREAS, a true copy of the will as probated is annexed hereto. THEREFORE, I, GLENDA FARNER STRASBAUGH , Register of Wills in and for CUMBERLAND County, in the Commonwealth of Pennsylvania, hereby certify that I have this day granted Letters TESTAMENTARY to: LESTER G KISSINGER JR who has duly qualified as EXECUTOR(RIX) and has agreed to administer the estate according to law, all of which fully appears of record in my office at CUMBERLAND COUNTY COURTHOUSE, CARLISLE, PENNSYL VA NIA. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the sea, of my office on the 15th day of September 2004. 1 -1 **NOTE** ALL NAMES ABOVE APPEAR (FIRST, MIDDLE, LAST) EXHIBIT C ?-q 101 Lf T'bt,"q meeb Tax Parcel No. 01-21-0273-069 Auvs? MADE THE day of in the year two thousand eight (2008) BETWEEN ANITA M. KISSINGER, Grantor, AND JUANITA M. PANKO, Grantee, WITNESSETH that in consideration of No ($0.00) Dollars, in hand paid, the receipt whereof is hereby acknowledged, the said Grantor does hereby grant and convey to the said Grantee, her heirs and assigns, ALL THAT CERTAIN piece or parcel of land situate in the Borough of Camp Hill, Cumberland County, Commonwealth of Pennsylvania, bounded and described as follows, to wit: BEGINNING at a point marked by an iron pin at the easterly line of North 30th Street at the northerly line of Lot No. 20, Block M, on the Plan of Lots hereinafter mentioned; THENCE northwardly along said line of North 30th Street 60 feet to an iron pin; THENCE eastwardly through a portion of Lot No. 18, Block M, 131.84 feet to a stake on the westerly line of Lot No. 4; THENCE by the latter line and the western line of Lot No. 3, Block M, southwardly at an interior angle of 87 degrees 29 minutes 65 feet to a stake at the corner of Lots No. 2, 19, and 20, Block M; THENCE westwardly at right angles along the northerly line of Lot No. 20, Block M, 122.25 feet to the place of BEGINNING BEING Lot No., 19 and a small portion of Lot No. 18, Block M, on the Plan of Beverly Park, said Plan being recorded in Plan Book 3, Page 19, Cumberland County Records. HAVING THEREON. erected and one and one-half story brick dwelling house, known and numbered as 215 North 30'h Street, Camp Hill, Pennsylvania. UNDER AND SUBJECT, NEVERTHELESS, to any and all covenants, conditions, easements, rights of way, restrictions and matters of prior record and any matter which a physical inspection or survey of the property would disclose. BEING THE SAME PREMISES which L. Edward Sprague and Janet M. Sprague, his wife, by deed ':dated August 28, 1961 and recorded September 16, 1961 in Deed Book H, Volume 20, Page 984 in the Office of the Recorder of Deeds of Cumberland County, grante and conveyed unto Lester G. Kissinger and Anita M. Kissinger. Lester G. Kissinger d ed October 15, 2005 thereby vesting title solely to Anita M. Kissinger, 'HER TO DAUGHTER A TOGETHER-WIF an-IM sin lar the buildings, improvements, ways, streets, alleys, passages, waters, water-courses, rights, liberties, privileges, hereditaments and appurtenances whatsoever thereunto belonging, or in any wise appertaining and the reversions and remainders, rents, issues and profits thereof; and all the estate, right, title, interest, property, claim and demand whatsoever of them, the said Grantors, in law, equity, or otherwise howsoever, of, in, to or out of the same. TO HAVE AND TO HOLD the said lot or piece of ground above described, with the buildings and improvements thereon erected, hereditaments and premises hereby granted or mentioned, and intended so to be, with the appurtenances, unto the said Grantee, her heirs and assigns, to and for the only proper use and behoof of the said Grantee her heirs and assigns, forever. AND the said Grantor does hereby Warrant Specially the property hereby conveyed. IN WITNESS WHEREOF, said Grantor has hereunto set her hand and seal the day and year first above written. Signed, Sealed and Delivered in the Presence of Witness ANITA M. KISSINGE COMMONWEALTH OF PENNSYLVANIA SS COUNTY OF ?c Ok n On this, the 291 day of y , 2008, before me, a Notary Public, the undersigned officer, personally ap eared ANITA M. KISSINGER, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that she executed same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. NOTARIAL SEAL No ry Public JOSHUA B. CLOUSER Notary Public HARRISOURG CITY, DAUPHIN COUNTY My Commission Ex0es Sep 15, 2008 CERTIFICATE OF RESIDENCE I do hereby certify that the precise residence and complete post office address of the within Grantee is: 2153 Bordeaux Court Harrisburg, PA 17112 qluluv-"o'a-???? Attomey/Agent for Grantee r ROBERT P. ZIEGLER RECORDER OF DEEDS CUMBERLAND COUNTY 1 COURTHOUSE SQUARE CARLISLE, PA 17013 717-240-6370 Instrument Number - 200829194 Recorded On 8/28/2008 At 8:15:04 AM * Instrument Type - DEED Invoice Number - 27883 User ID - MBL * Grantor - KISSINGER, ANITA M * Grantee - PANKO, JUANITA M * Customer - CORNERSTSONE LAND * FEES STATE WRIT TAX $0.50 STATE JCS/ACCESS TO $10.00 JUSTICE RECORDING FEES - $12.50 RECORDER OF DEEDS AFFORDABLE HOUSING $11.50 COUNTY ARCHIVES FEE $2.00 ROD ARCHIVES FEE $3.00 CAMP HILL SCHOOL $0.00 DISTRICT CAMP HILL BORO $0.00 TOTAL PAID $39.50 * Total Pages - 4 Certification Page DO NOT DETACH This page is now part of this legal document. I Certify this to be recorded in Cumberland County PA f . RECORDER O D DS rrao * - Information denoted by an asterisk may change during the verification process and may not be reflected on this page. IIIIIIIDIIVIIIMN 0 0 L c` r Cm e`en ?4 G+ p 2 co ??. p . tll Z' h ? w May 27, 2008 To: Rich Connell Dear Rich, As you can see from the enclosed, we were able to locate a Living Will and Power of Attorney for my mother, Anita Kissinger, in addition to the Last Will and Testament that we had all along. My brother, sister and I have some questions regarding these papers. 1. Regarding the Last Will and Testament: a. Is this something that a lawyer will help me (as Executor) execute, or do I just carry out my mom's wishes within the family structure? If a lawyer is used, can I use you to guide me or because this was drawn up, and probably is on file at the Judge Advocate's office at Carlisle Barracks, do I use them? (Do I have to notify them anyway when she has died and we're settling the estate?) b. Is it necessary to amend this document with a second person who can act as executor, in case something happens to me before I can carry out these duties. I am already the second on it, as my father who died in Oct 2005, was the initial executor. 2. Regarding the Power of Attorney, on which I am again the primary, and my sister is named as secondary: a. Can I use this Power of Attorney to start to carry out some of my mom's wishes, even before she is mentally and physically incapacitated? For instance, she is fixated on getting the 10 year old car she owns transferred to my brother for his 17 year old son to drive. I know AAA can help us do this, but can I act on my mom's behalf so she no longer has to spend her last energy to do it in person? b. What about other financial accounts? Specifically, she has some CDs that she thinks she might want to cash out now to make it easier to settle and distribute the estate later. Is this something I should act on? c. Are there any advantages to her doing some things now, such as giving away money, furniture, etc. so to have her three children avoid any inheritance taxes on any of this? d. In general, what is the inheritance tax and law and are there things we can do to make things simpler for my mom and us three children? For instance, if us three children agree that one of us would want my Mom's house and will buy out the others, should it be transferred to one of us only? Or does that get us into thorny inheritance areas? 3. Regarding the Living Will: a. It appears to be in order to me, and my sister is named as surrogate to make decisions for my mother. But my father was named second, and since he is no longer with us, should my mom amend this to name me or my brother as a second in case my sister is unable to carry out her role? b. My mom is currently in the hospital and getting tired of it and all of the procedures. We were hoping to get her strength up so she can come home and have Hospice and us care for her there. But just yesterday she said she doesn't want to eat anymore (the drugs also cause her to lose her appetite), and appears to be fighting the doctors and giving up. I know she has a suppressed appetite, and forced nutrition will enable her to have one more (less invasive procedure) to finally come home and be there until she passes. However, the way I read the Living Will, she would be within her right to refuse any tube feeding. Are we up a creek on this, even though it is a minor thing medically at this point and would be of benefit in order for her to have some better days when she comes home? 4. If you can give us any other advice on things we should be aware of, it would be appreciated. At this point, we still hope to have my mom home and hopefully she will have a few more good weeks with us. But you may need to advise us beforehand, if my mom gets tired of life and all this "hospital stuff'. Please let me know how best to proceed, Sincerely, Les Kissinger a General Questions & Info Regarding Determining Estate Value (Answers from Rich Connell, or ING, or Prudential) 1. What date is used to determine the value of the estate's cash or property assets? ANSWER: The date of mom's death, 9/5/2008. For example, the value of the CDs on that date; the value of any checking and savings accounts on that date; the value of any stock (ie, Prudential Shares); the value of the house; etc. 2. What if interest has increased the value of financial assets since 9/5/08, how is that treated? ANSWER: Interest is taxed when you file mom's personal 2008 Federal and State Tax returns (what John Bisbano will help with), as well as the Estate 2008 Federal and State tax returns. I'm not sure which return pays the tax. Probably the Estate return, since I believe Mom's income technically stopped when she died. For a Federal Return, there is a $2M exemption, so probably no tax there. For the state, they tax interest, so that probably is where we'll owe. (Will need to confirm with Bisbano, that the "Estate" pays the tax under the Estate EIN number versus mom's SSN.) 3. If one has to go back to one year before death to account for estate assets given away, what do I have to look for and include? ANSWER: Big items of several thousand dollars in value. Typically this would be stocks and bonds. I would not have to account for small gifts such as birthday gifts (ie, gifts of $100 to grandkids). NOTE: Anything with a paper trail would need to be accounted for (a car, insured jewelry, etc). 4. Is Life Insurance from ING (Reliastar) part of the Estate? ANSWER: No,...it goes directly to the beneficiaries. Per phone call with ING, they will issue a check to Uncle Jack for $2,500, the amount of the policy. It should not be taxable. Only interest would be taxable. But mom collected this interest as annual dividends so there should be no accumulated interest on which to pay taxes. Uncle Jack can either sign over the check or write us a separate one. If he determines from his accountant that there would be some tax, we will let him keep the estimated amount out of the $2,500, so nothing comes out of his pocket. 5. Mom had 39 shares of Prudential Stock. How do I determine its value? ANSWER: It is the value of the stock on the date of mom's death (9/5/08). This is the case even if the stock is worth less today, which it is. I called ING and the closing price on 9/5/08 was $78.74 (total value: $3,070.86 for 39 shares). On 9/23 it was selling at $77.76; on 10/1 it was $65.69 at noon; on 10/6, $49.74 at 3:45 PM; and on 10/8 it closed at 43.29 (a total value: $1688.31 for 39 shares). Obviously the value has decreased significantly due to the crisis in the financial markets. Whenever these get cashed in, the stock will probably be of less value than it was on 9/5/08. 6. The stock value assigned above does not seem fair given it has declined in value. Are there any other options? ANSWER: Prudential could transfer all 39 shares to one person, or 13 shares apiece to each child. Then whenever one of us cashes the stock in, probably at a loss in value from the value on 9/5/08, the loss is a "write off' in Capital Gains and Losses on your Income Tax. Per call with Prudential, they will pay an annual dividend on the shares at the end of the calendar year. I'm not sure if a dividend is warranted in 2008, but in any case, we have until then to decide what to do with the stock, ...cash it in or transfer it. One possibility is to transfer the shares to one sibling, and let the others get paid off for their shares. (If just Les and Jack get the stock (in accordance with question #9 below), then one would buy out the other and that person could let the stock alone in hopes of it rising in value again before cashing it in.) 7. Mom has two CDs in Members Ist that I'm letting ride because the interest in her account is greater then cashing them in and putting them in an Estate savings account. How do I treat the increased value over the estate value of these CDs on 9/5/08? ANSWER: Same answer as to #2 above. The increase in interest revenue would be taxed when filing mom's 2008 State and Federal Income Tax return, and her 2008 Estate State and Federal Income tax returns. (Probably need to get John Bisbano to help here. Also, 1 assume if we don't "settle" the estate in 2008, then we might have to pay tax on any interest earned in 2009 as well) 8. June has been deeded the house. How does it show up as part of the Estate value, and how would any tax on it be paid? ANSWER: The house shows up as a property transfer within the year prior to mom's death. The money to pay the inheritance tax (4.5%) would come from monies in the estate. (In the case of 215 N 30th ST, valued at $225,000, that amount would be $10,125.) 9. June has been deeded the house, but is giving up any claim to the monies in the estate. Is there some legal document that needs to be signed, so that the executor (Les) is able to distribute the monies legally (without follow-up claims) to just Les and Jack? ANSWER: A statement to the effect that June is forgoing any claim to the monies, would be signed at the time of settlement. However, it should be noted that if the inheritance tax on the house is paid out of the estate monies, then there is also less money ($10,125) available for Les and Jack. - Page 2 of 3 - m 10. June has indicated a willingness to make amends for the disproportionate distribution of the estate brought about by the deeding of the house to her. It is clear that the will directed equal sharing of the estate to all three siblings (1/3 each). How would this compensation be handled? ANSWER: The process is done outside the execution of the will. At least two options exist: (a) For sake of illustration, assume that the total value of the estate to be divided equally is $300K, the house being worth $200K and the monies $100K. Each child would get $100K. If Les and Jack split the monies ($50K each), then June would give each of them another $50K, thus making each person's share an equal $100K. This could be done without tax implications by a tax free gift of $12K per year per person. But this would take 4+ years to equalize the distribution of $50K (without considering the inflation implications). More money can be gifted if the spouses are involved. That is, Andy and June can each give a $12K gift, making it $24K to each brother. June and Andy could also gift the spouses of each brother (Kay and Debbie) the same amount ($24K). Thus if the spouses are involved, in 2008, June and Andy could gift $48K to each brother and his wife, then on 1 Jan 2009, the remaining $2,000 could be gifted to each brother, making the total $50,000 to each sibling in a shorter period of time. (b) If money is not available to make the distribution equitable, the house could be re- deeded by June to all three siblings (June, Jack and Les), thus each owning 1/3 of the house. No money would exchange hands until the house is sold. v Estimated Distribution Of Estate (10/8/08 Jack Les 124,000 124,000 Version # 2: Distribution of June Jack Les Estate (allocating house/property already given away; splitting cash 3 ways) House $ 225,000 - - Jewelry $ 22,570 500 500 Car $ - 4,000 - Household/Gifts $ 4,600 - 400 (mower) Cash (3 ways) $ 38,143 38,143 38,143 TOTAL of Ver #2 $ 290,313 42,643 39,043 Version # 3: Distribution of June Jack Les Estate (Ver #2 but cash split between Jack & Les) House $ 225,000 - - Jewelry $ 22,570 500 500 Car $ - 4,000 - Household/Gifts $ 4,600 - 400 (mower) Cash (2 ways) $ - 57,215 57,215 TOTAL of Ver #3 $ 252,170 61,715 58,115 - Version #4: Distribution of June Jack Les Estate based on House($225 ,000) & Cash ( $114,430): $339,430/3=11 3,143 each. Assuming no compensation: House to June ; Cash to Jack & Les House $ 225,000 - - Cash $ - 57,215 57,215 TOTAL of Ver #4 $ 225,000 57,215 57,215 Version #5: Distribution of June Jack Les Estate with compensation based on Value of House & Cash House $ 225,000 - - Cash $ - 57,215 57,215 Compensation $ (-111,856) 55,928 55,928 TOTAL of Ver #5 $ 113,144 113,143 113,143 Jewelry $ 22,570 500 500 Car $ - 4,000 Household/Gifts $ 4,600 - 400 (mower Actual TOTAL $ 140,-3 14 117,643 144-0431 Total Estimated Estate Value (Rounded): $ 391,516.00 (Cash: $133,946) Minus Inheritance Tax w 5% off $ ( -16,737) * Minus estimate of funeral, lawyer and 2008 taxes ( - 2,779) Remainder to be distributed* $ 372,000.00 (Cash: $114,430) Version # 1: Distribution of June Estate equally (3-Ways) $ 124,000 LJ Anita M Kissinger Estate Value & Estimated Inheritance Tax (as of 10/8/08) (Value of Estate determined on date of death: 9/5/08) Money in Banks / Credit Union / Insurance (1) PNC Checking (as of 9/15 when last check cleared) (2) Bank Of America CD (closed 9/19/08) (deposited in Estate Acct on 9/25/08 (3) Members 1sT Mom's old Acct: CD # 40 (as of 8/31) Mom's old Acct: CD #41 (as of 8/31) Mom's old Acct: Regular Savings (8/31) Mom's old Money Mgmt Account (8/31) Mom's old Checking (on 9/8; closed 9/15) (4) Prudential Insurance (COMPUTERSHARE) (39 shares @ $78.74 on 9/5; now worth less) (5) ING (Reliastar) Life Insurance Policy * Payable to Jakob Gandlmayr; should not be part of estate TOTAL Money (approx as of 10/8/08) (without ING Life Insurance) Page 1 of 2 $ 2,777.66 $ 12,262.81 $ 63,913.29 $ 16,121.23 $ 8,998.52 $ 24,140.93 $ 2,661.15 $ 3,070.86 $ 2,500.00* $ 133,946.45 6 V Anita M Kissinger Estate Value & Estimated Inheritance Tax Property (1) House (215 N 30'x' St) $ 225,000.00 (2) Jewelry (Insured on 2008 policy) $ 23,570.00 (3) Auto (at time of transfer to Jack) $ 4,000.00 (4) Household & gifts (within 1 Yr of Death) $ 5,000.00 (furniture, TVs, paintings, decorations, heirlooms, Kitchen items (glasses, dishes, silverware, pots & pans), microwave, refrigerator, china, washer/dryer, clothing, yard furniture, tools, baby crib(735), mower (400)) TOTAL Property Value $ 257,570.00 TOTAL Money (pg 1 as of 10/8/08) $ 133,946.45 TOTAL Property Value (above) $ 257,570.00 TOTAL Estimated Estate Value $ 391,516.45 (Property and Money) Estimated Inheritance Tax (4.5%) $ 17,618.24 Estimated Inheritance Tax w 5% discount $ 16,737.33 (approx $880.91 on 1.7,618.24) I", t?t„.tip r1 ',?v ''e, .:? ?J MAY 012009 LESTER G. KISSINGER, JR., EXECUTOR, ESTATE OF ANITA KISSINGER, PLAINTIFF, V. JUANITA M. PANKO, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : DOCKET NO. 09-2034 : CIVIL ACTION - LAW DEFENDANT ?+?1 RULE AND NOW, this 6 - day of _ 12009, upon consideration of the foregoing Motion to Disqualify, a Rule to Show Cause is issued to Plaintiff/Respondent, Lester Kissinger, Jr., Executor of the Estate of Anita M. Kissinger to show cause, if any he has, why the relief requested therein should not be granted. RULE RETURNABLE on _ a"G , 2009, a 36 p.m %of- in Courtroom No. 3 of the Cumberland County Courthouse. J. Dy'stribution List: ,jlsaige Macdonald-Matthes, Esquire, Serratelli, Schiff nan, Brown & Calhoon, P. C., 2080 ?glestown Road, Suite 201, Harrisburg, PA 17110 Richard E. Connell, Esquire, Ball, Murren & Connell, 2303 Market Street, Camp Hill, PA 17011 nn l_:1S ?'V S' MzLtL?ZL s?t-1? 71 VIN' AIAS rqd 6 Z ,.ZI Kd 9- Atilt UZ AbVIQNQHiOW 3?d .40 20*0-INN. LESTER G. KISSINGER, JR., IN THE COURT OF COMMON PLEAS EXECUTOR, ESTATE OF CUMBERLAND COUNTY, PENNSYLVANIA ANITA M. KISSINGER, Plaintiff JUANITA M. PANKO, DOCKET NO. 09-2034 Defendant PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Kindly withdraw the appearance of Richard E. Connell, Esquire, on behalf of Plaintiff, Lester G. Kissinger, Jr., Executor, Estate of Anita M. Kissinger, in the above-captioned matter. BALL, MURREN & CO E By Richard E. Connell, Esquire - I.D. No. 21542 2303 Market Street Camp Hill, PA 17011 (717) 232-8731 Enter the appearance of Dale F. Shughart, Jr., Esquire, on behalf of Plaintiff, Lester G. Kissinger, Jr., Executor, Estate of Anita M. Kissinger, in the above-capti9q matter. bale F. Shughart, J ., E ire I.D. No. 19373 3 ct / rN, 1 , Carlisle, PA 17013 (717) 241-4311 Attorney for Plaintiff, Lester G. Kissinger, Jr., Executor, Estate of Anita M. Kissinger Dated: May /1 , 2009 CERTIFICATE OF SERVICE I, Dale F. Shughart, Jr., Esquire, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Paige Macdonald-Matthes, Esquire Serratelli, Schiffman, Brown & Calhoon, P.C. 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 Date: l t ! ?/ By: Dale F. Shughart, Jr., Esquire -44? t / U Carlisle, PA 17013 FILED- ' , -`C;4. OF PHE R"' 2009 MAY 1 1 3 1: 39 CUM _. r # ; 1 PL. y 0 LESTER G. KISSINGER, JR., EXECUTOR, ESTATE OF ANITA M. KISSINGER, Plaintiff V. JUANITA M. PANKO, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW(EQUITY) NO. 09-2034 Civil Term NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUR WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 (717) 249-3166 LESTER G. KISSINGER, JR., : IN THE COURT OF COMMON PLEAS EXECUTOR, ESTATE OF : CUMBERLAND COUNTY, PENNSYLVANIA ANITA M. KISSINGER, : CIVIL ACTION - LAW(EQUITY) Plaintiff V. JUANITA M. PANKO, NO. 09-2034 Civil Term Defendant FIRST AMENDED COMPLAINT FOR CANCELLATION OF DEED AND NOW, comes the Plaintiff, Lester G. Kissinger, Jr., Executor of the Estate of Anita M. Kissinger, Deceased, by his attorney, Dale F. Shughart, Jr., and makes the following Complaint for relief: 1. The Plaintiff is Lester G. Kissinger, Jr., an adult individual, and Executor of the Estate of Anita M. Kissinger, Deceased, who resides at 11 Longwood Drive, Mechanicsburg, PA 17050. 2. The Defendant is Juanita M. Panko, an adult Individual, who resides at 2153 Bordeaux Court, Harrisburg, PA. 3. Anita M. Kissinger (Decedent) died on September 5, 2008, leaving a Will dated May 29, 1981 which was duly admitted to probate. A copy of the Will is attached hereto, made a part hereof and marked Exhibit "A". 4. Plaintiff was appointed Executor of the Estate of Anita M. Kissinger, deceased, by Decree dated September 13, 2008 of the Register of Wills, Cumberland County, Pennsylvania. A copy of the Letters Testamentary is attached hereto, made a part hereof and marked Exhibit "B". 5. On August 22, 2008, decedent allegedly executed and acknowledged an instrument purporting to be a fee simple deed which was recorded in the Office of the Recorder of Deeds on August 28, 2008 by Cornerstone Land as Instrument No. 200829194. A copy of the alleged Deed is attached hereto, made a part hereof and marked Exhibit "C". 6. The Deed purports to convey to the Defendant the tract of land, with improvements thereon erected, known as 215 North 30th Street, Camp Hill, PA 17011 (the "Property") for no consideration. Plaintiff was not made aware of the existence of the alleged Deed until Defendant told him on September 12, 2008, a week after his Mother's death. 7. At the time the Deed was signed, decedent was 80 years of age, suffered from an advanced terminal cancer condition, namely metastatic biliary cholanglocarcinoma, was weak in mind and body, being at the time primarily 2 bedridden, had pain throughout her body and her stomach, joints and bones, was medicated and sedated, including among the prescribed and administered drugs Lorazepan for agitation, Morphine for pain, Ambien, a sleeping pill, was easily influenced and was not possessed of sufficient mental capacity to comprehend the true meaning of the Deed or the effect of her act. COUNT I FRAUD, DURESS, COERCION, AND/OR UNDUE INFLUENCE 8. The averments of Paragraphs 1 through 7, inclusive, are incorporated herein, by reference thereto. 9. On June 10, 2008, while Decedent was in the general condition prescribed above in Paragraph 7, but in good spirits and good frame of mind and clear in her thinking, she met with her attorney, Richard E. Connell, Esquire, at her home. At the Decedent's request her son, Lester, Plaintiff, and her daughter, Juanita, were present, although Juanita was not present for the entire conference. 10. During the course of the conference the Decedent's 1981 will and estate planning were reviewed in careful detail. The Decedent was satisfied that her Will was in proper form, and reiterated to her attorney her decision to divide her Estate equally among her three children, which 3 had been her intention since her Will was executed in 1981. The Will was not changed. 11. A specific discussion was held, at which the Defendant was present, regarding the future of the Decedent's residence, i.e., the "Property" in issue. 12. The specific advice of Attorney Connell to Decedent, which was understood by all present, was that it would be a counterproductive strategy to take any action to change the ownership of the real estate by virtue of gifting, the reason being that a gift would be at the existing tax basis for the Property, it having been acquired in 1961, which would subject the new owner(s) to potential capital gains taxes upon sale or other disposition of the property. On the other hand, title passing at death takes a "stepped up" tax basis, which does not subject the new owner(s) to capital gains taxes except to the extent the value on ultimate transfer exceeds the date of death value of the Property. 13. The Decedent advised her attorney that ultimately ownership of her real estate should vest in the Defendant. Plaintiff, Decedent and Defendant were all advised by Attorney Connell in the context of the most advantageous estate planning that after the Decedent's death, the Property would be distributed equally in kind to the three 0 4 children, after which plaintiff and his brother, Jacob T. Kissinger, would deed their shares to the Defendant, with the values being equalized by virtue of the Defendant foregoing and releasing some of her interest in other assets of the Estate and Defendant paying adequate additional consideration to Lester G. Kissinger and Jacob T. Kissinger thereby leaving the three heirs in equal position. 14. Jacob T. Kissinger was later advised of the discussions, was previously aware of the wishes of his Mother, and expressed agreement. 15. Thus, the Mother decided what would happen after her death, her children were advised of her decision and all agreed. 16. From June 10, 2008 until the Decedent's death on September 5, 2008, the Decedent remained bedridden in her home being provided round the clock care by her three children with assistance from Hospice workers and occasionally Hospice nurses. 17. The Decedent's attending physician, Dr. Andrew Panko, is the husband of the Defendant, and he occasionally visited with the Decedent at her home. 18. The primary care given to the Decedent was 5 provided by the Defendant, including staying with the Decedent almost every night, with assistance from her two brothers, and occasional assistance from other family members, friends and neighbors. 19. By virtue of the fact that the Decedent's physical and mental condition continued to deteriorate, she was utterly dependent upon her children, primarily the Defendant, to provide her medications, and to insure that she was properly cared for, a confidential relationship existed between the Decedent and the Defendant. 20. From June 10, 2008, until Decedent's date of death on September 5, 2008, almost three months later, the Defendant occupied a superior and overmastering position over the Decedent, intellectually and physically, and had the opportunity to use, and did use, that superiority to the disadvantage of the Decedent. 21. Plaintiff believes and therefore avers that at some point between June 10, 2008 and August 22, 2008, Defendant began and pursued a course of conduct consisting of words, acts, and omissions of acts which should be taken, to "convince" the Decedent to deed the Property to the Defendant prior to her death, despite the decision of the Decedent made with proper legal advice, while her pain was less, and her mental condition more clear. 6 22. By virtue of this alleged course of conduct, statements, acts and omissions, which consisted of fraud, duress, coercion and/or undue influence, Defendant was able to and did convince the decedent to sign the deed before a notary public named Joshua B. Clouser, and a witness Cindy Billet. 23. It is believed and therefore averred that the deed was prepared without consultation with any licensed attorney, and that the presentation of the deed was made by a representative of Cornerstone Land, a title company, who was not a licensed attorney, as witness to the Deed. 24. It is believed and therefore averred that although the deed purports to have been acknowledged in Dauphin County, Pennsylvania, in fact the deed was signed and allegedly acknowledged at the Decedent's home. 25. The acts and omissions committed by the Defendant, which constituted fraud, duress, coercion and/or undue influence, include, but are not limited to, excessive importunity, verbal statements, and acts and omissions in regard to the care being provided to the Decedent by the Defendant. 26. The Decedent used her overmastering position over the Decedent for the sole purpose and design of constraining the Decedent to execute the Deed in favor of 7 the Defendant, contrary to her express desire to distribute her estate equally among her three children, which, but for the conduct of the Defendant, the Decedent would not have done. 27. The purported ownership of the Property by the Defendant was procured through fraud, duress, coercion, and/or undue influence, as aforesaid, which is the result of the aforesaid wrongful acts of the Defendant. WHEREFORE, Plaintiff prays Your Honorable Court to: a. Declare the deed from Anita M. Kissinger, Decedent, to Defendant, Juanita M. Panko, to be null and void, and that the Defendant be ordered to immediately restore the Estate and the premises described in the Deed to the Plaintiff, as Executor of the Estate of Anita M. Kissinger; b. To award the Plaintiff damages for the losses incurred by the Estate by virtue of the wrongful attempt to appropriate the Property to the sole use and ownership of the Defendant, including, but not limited to, a loss of rental value from the date of death to the administration of ownership to the Plaintiff. c. To award such other equitable relief as the Court may deem necessary and proper. 8 COUNT II INTENTIONAL MISREPRESENTATION 28. The averments of Paragraphs 1 through 27, inclusive, are incorporated herein by reference thereto. 29. It is believed and therefore averred that in the course of conduct undertaken by the Defendant, as set forth above, she deliberately misrepresented and stated unto the Decedent that Plaintiff, Lester Kissinger, intended to and/or was in the act of selling possessions of the Decedent, contrary to her express wishes, and in abuse of a Power of Attorney under which Plaintiff, was handling the Decedent's financial affairs. 30. The statements made by the Defendant to the Decedent in regard to the conduct of Lester Kissinger were deliberate falsifications. Although he was in the process of inventorying and valuing assets in preparation for administration of his Mother's Estate, no acts were taken to dispose of or make arrangements for ultimate disposition of any property of the Decedent contrary to her wishes that her assets be distributed equally among her three children, with ownership of the real estate to ultimately vest in the Defendant. 31. The purported ownership of the Property by 9 Defendant was procured by virtue of the aforementioned misrepresentations, and the Defendant improperly now claims to own the Property as a result of the aforementioned wrongful acts. WHEREFORE, Plaintiff prays Your Honorable Court to: a. Declare the deed from Anita M. Kissinger, Decedent, to Defendant, Juanita M. Panko, to be null and void, and that the Defendant be ordered to immediately restore the Estate and the premises described in the Deed to the Plaintiff as Executor of the Estate of Anita M. Kissinger; b. To award the Plaintiff damages for the losses incurred by the Estate by virtue of the wrongful attempt to appropriate the Property to the sole use and ownership of the Defendant, including, but not limited to a loss of rental value from the date of death to the administration of ownership to the plaintiff. C. To award such other equitable relief s the Court may deem necessary and proper. COUNT III LACK OF CAPACITY 32. The averments of Paragraphs 1 through 31, inclusive, are incorporated herein by reference hereto. 33. During the course of care being provided to the 10 Decedent by her three children, a daily ledger was maintained indicating the Decedent's medical and physical condition, medications taken, visitors, and occurrences during the day, which ledger is detailed and accurate. 34. The ledger maintained contemporaneously with the care being provided demonstrates that on and about August 22, 2008, the Decedent was in an acute, confused mental state, and unable to attend day to day business activities, any details relating to the Property that she owned, an ability to take her own medicine in a correct and timely manner, or any perform any activities of daily living without assistance. 35. On or about August 22, 2008, Decedent suffered tremendous physical pain, which required administration of pain killing drugs and anxiety reducing medication, which induced mental confusion and an ability to communicate meaningfully. 36. The journal for August 22, 2008 reflects that Decedent was not provided with her medicine on that day and also failed to note the alleged visitors who presented the Deed to Defendant. A true and correct copy of the August 22, 2008 ledger entries from the journal are attached hereto, made a part hereof and marked Exhibit "D". 37. At the time of the alleged conveyance, Decedent 11 had weakened intellect evidenced by confusion due to stress, fatigue and the ravishing effects of her illness, and lacked the ability to comprehend the matters involving the slightest complexity. 38. At the time of the alleged conveyance, Decedent was too weak, disoriented or medicated, to have known what was presented to her for execution, and was too weak to have understood an oral review, and further may have been suffering enhanced pain due to the failure of the Defendant to administer medication. 39. Due to the terminal state of the Decedent, and the manner of the creation of the deed, her confusion and inability to conduct even the simplest business activities, she could not have knowingly signed the document intending to, in any significant measure, undermine her long settled testamentary plan to divide her entire estate, equally, among her three children. WHEREFORE, Plaintiff prays Your Honorable Court to: a. Declare the deed from Anita M. Kissinger, Decedent, to Defendant, Juanita M. Panko, to be null and void, and that the Defendant be ordered to immediately restore the Estate and the premises described in the Deed to the Plaintiff as Executor of the Estate of Anita M. Kissinger; 12 b. To award the Plaintiff damages for the losses incurred by the estate by virtue of the wrongful attempt to appropriate the Property to the sole use and ownership of the Defendant, including, but not limited to a loss of rental value from the date of death to the administration of ownership to the plaintiff. C. To award such other equitable relief as the Court may deem necessary and proper. Respectfully submitted, By: Attorney I . D --'l 873 10 West High Street Carlisle, PA 17013 13 VERIFICATION Lester G. Kissinger, Jr., Executor, Estate of Anita M. Kissinger, hereby verifies that the facts set forth in the foregoing First Amended Complaint are true and correct to the best of his knowledge, information and belief, and understands that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsifications. Date: /? if aOU? ??! 14 May 05 2009 2:43PM Hall, Murren and Connell 1-717-232-2142 p.10 LAST WILL AND TESTAMENT OF ANITA M. KISSING I, ANITA M. KISSMGF.R, a resident of the Commonwealth of Pennsylvania, being of sound and disposing mind and memory, do hereby make, publish and declare this instrument to be my LAST WILL AND TESTAMEM. I hereby revoke any and all wills and codicils heretofore made. I IDEWIFICATIONS AND DEFINITIONS I am married to LESTM G. KISSINGER, hereinafter referred to as "my Spouse." We have three children, LESTER G. KISSDX;M, OR., JUANITA M. KISSINGER and JACOB T. KISSINGER. References in this Will to "my Children" include these three children and any other lawful children born to or adopted by me. The following definitions obtain in any use of the terms in this will: 1. "Descendants" means the immediate and remote lawful, lineal descendants of the person referred to, and it means those descendants in being at the time they must be ascertained in order to give effect to the reference to them, whether they are horn before or after my death or of any other'person. The persons who take under this Will as Descendants shall take by right of representation, in accordance with the rule of per stirpes distribution and not in accordance with the rule of per capita distribution. Persons legally adopted when under the age of fourteen years shall not be differentiated from blood descendants for any.purpose. 2. "Survive me" is to be construed to mean that the person referred to must survive me by thirty days. If the person referred to dies within thirty days of my death, the reference to him shall be construed as if he had failed to survive me. 3. As used in this Will, the Words "Executor,"-nhe,n "him,10 "his," and the like shall be taken as generic and applicable to a natural person of either sex or a corporate person or other legal, entity. F-xHi g(71 tt? May 05 2009 2:43PM Ball, Murren and Connell 1-717-232-2142 PAYI' -OF L?EBTS : AND TAXES I direct my Executor to.pay the following as soon after my death as may be practicable: 1. All of my just debts and the expenses of my last illness, funeral and of the administration of my estate; but my Executor need not accelerate and pay those unmatured obligations which, in his opinion, it might be proper and more advantageous to retain or ienew and pay as they became due and payable. 2. All inheritance, transfer, estate arxi similar taxes (including interest and penalties) assessed or payable by reason of my death, on any property or interest in my estate for the purpose of camputing taxes. My executor shall not require any beneficiary under this will to reimburse my estate for taxes paid on property passing under the terms of this Will. - III RESIDUARY ESTATE A. I define "my Residuary Estate" as all of my property after the payment of debts and taxes under Article II above, including real and personal property, whenever acquired by me, property as to which effective disposition is not otherwise made in this Will or by operation of law, and property as to which I have an option to purchase or a reversionary interest, but excluding property as to which I have no interest other than a power of appointment. B. I give my Residuary Estate to my Spouse if he survives me. C. If my Spouse does not survive me, I direct my Executor to divide my Residuary Estate into equal shares and to distribute'those shares as follows: 1. one share to each of my Children who survive me. 2. one share to be divided equally among the then living descendants of each of my Children who do not survive me. IV APPOINIi OF EXECLYMR I nominate and appoint my Spouse, LESTER G. KISSINGER, as ; . ec .... of ,this. . my . LAST WI ,L . A.M-TESV . . It . LESTER G. KISSINGER = ?.- lirg , to: sermon_ t?iis ?aci y,. I appoint my son ,; st that my irdon P.11 ,_ .• sitiCl ^ +tlfit"i1?!` ;'p'ie'r au ority, without tH6 order of any court and upon such terms and under such conditions. as my. Executor shall deem best for the proper settlement of my oatatQ; to bargain, sell at public or private sale, convey, transfer, deed, - NOL y?• :'.. 1b'.it ..af +i. SL,+?t +.1 j i :. . f'+vr7t .'.lS ? yfA4?f?ri+ArtiR A .. ?." .. ta• .t . _ ...: kw 7.2Y.5 s.'',+' ,,.- .. .'.. May 05 2009 2:43PM Ball, Murren and Connell 1-717-232-2142 mottgPge, lease, exchange, pledge, manage and deal with any and all property belonging to my estate; to =pprcmise, settle,, adjust, release and discharge any and all obligations or claims in favor of or against my estate; and to borrow money for the payment of inheritance and estate taxes or for any other purpose. Without in any way limiting the scope of the powers enumerated herein of my Executor, I hereby specifically give to him full power to retain any and all securities or property owned by me at the time of my decease whenever, in his absolute and uncontrolled discretion, such a course shall seem to him to be best, without liability for depreciation or loss, and free from investment restrictions incident to executorship, whether imposed by coaron law or statute, In the execution of his duties and powers as Executor'he* shall hale the power to comply with all legal requirements as to the execution and delivery of deeds and all other writings, documents or formalities without the order of any court; and he shall furnish a statement of receipts and disbursements at least annually to each person then entitled to receive income or property from my estate. IN WIUCSS WHzgOF, I A47-.---j have at Carlisle Barracks, Pennsylvania, this :(.. day of .........., 1961, set my hand and seal to this my LAST WILL AND TE.STMMU consisting of three (3) typewritten pages. ......: •' :': ?:..'.IKO ate 0 ... ) ANITA M. KISSI13t, Tes for Signed, sealed, published and declared by the Testator, ANITA M. KISSINGER, as and for her Last Will and Testament, in the presence of us, who, at her request, in her presence and in the presence bf each other, have hereunto subscribed our naomes as witnesses. ? NAME p.12 AMIUM G rl?e gsq?fru?Ksac P4 fr!Q GC S.. May 05 2009 2:43PM Hall, Murren and Connell 1-717-232-2142 p.13 CONfNiONWE. Ui OF PENNSYLVANIA) sS : COUNTY OF CEPME BLAND ) I, ANITA M. KISSINGER, Testator, whose name is signed to the attached or foregoing instrument, having;,beqTj,;.04y...: dified according to law, do hereby acknowledge that I signed-and executed the instrument as my Last Will; that I signed it willingly; and that I signed it as my free and voluntary act for the purposes therein expressed. Sworn or affirmed to and ackr ledged bef?o;a we, by ANITA M. KISSINGER, the Testator, this .?:... day of !!?a?..........., 1981. A212A M. KISSINGER, Testator (SEAL) ., ...? ........ . Notary -Fublic r cork A. Gobnw,, Affidavit My ?a i,?,,r Zwkw cony Alember, °^ ??sa Feb. 5. 1 CMMMUM Or COUNTY OF MARME AND VANIA} ss : ??'? ' ++tion of Nara } We, 71 Z. S'A'C &?V ... /'Y1.Utcte/ . ... ......... , and ..• •••.....1'hr??gr:......, the witnesses whose names are signed to the attached or foregoing instrument, being duly qualified according to law, do depose and say that we were present and saw Testator sign and execute the instrument as her Last Will; that ANITA M. KISSINGER, signed willingly and that she executed it as her free and voluntary act for the purposes therein expressed; that each of us in the hearing and sight of the Testator signed the will as witnesses; and that to the best of our knowledge the Testator was at that time 18 or more years of age, of sound mind and under no constraint or undue influence. Sworn or affirmed to abed to befor by t Or I? f4 . and . ? . 4<. Z19: witnesses, this .. ay of ?......... , 1981. e2 WITNESS (SF L) r . • ..... • tary Public ,1 ftb A. ?R?, 08* Pak Mai 05 2009 2:43PM r Hall, Murren and Connell 1-717-232-2142 REGISTER OF WILLS CUMBERLAND COUNTY PENNSYLVANIA r. p.15 EERTFFICATE OF GRANT OF LETTERS No. 2008-00.926 PA No. 2 f - 08- 0926 Estate Of : ANITA M KISSINGER lRn1 A/lWI& Lau Late Of : CUMBE HILL ND COUNTY Deceased Social Security No : 202-36-5289 WHEREAS, on the 15th day of September 2008 an instrument dated May 29th 1981 was admitted to probate as the last will of* ANITA M KISSINGER ~1 Mak Lau late of CAMP HILL BOROUGH, CUMBERLAND County, who died on the 5th day of september 2008 and WHEREAS, a true copy of the will as probated is annexed hereto. THEREFORE, I, GLENDA FARNER STRASBAUGH , Register of Wills in anc for CUMBERLAND County, in the Commonwealth of Pennsylvania, hereby certify that I have this day granted Letters TESTAMENTARY to: LESTER G KISSINGER JR who has duly qualified as EXECUTORMIX) and has agreed to administer the estate according to law, all of which fully appears of record in my office at CUMBERLAND COUNTY COURTHOUSE, CARLISLE, PENNSYLVANIA. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the sei of my office on the 15th day of September 2008. 1 ?Yrj 1B)T Oj * *ROTE* * ALL NAMES ABOVE APPEAR (FIRST, MIDDLE, LAST) May 05 2009 2:44PM Ball, Murren and Connell 1-717-232-2142 p.17 ? 9i44 Tbi.9; Djejeb Tax Parcel No. 01-21-0273-069 MADE THE ana} day of Avg LP in the year two thousand eight (20D8) BETWEEN ANITA M. KISSINGER, Grantor, AND JUANITA M. PANKO, Grantee, . WITNESSETH that in consideration of No (:0.00) Dollars, in hand paid, the receipt whereof is hereby acknowledged, the said Grantor does hereby grant and convey to the said Grantee, her heirs and assigns, ALL THAT CERTAIN piece or parcel of land situate in the Borough of Camp Hill, Cumberland County, Commonwealth of Pennsylvania, bounded and described as follows, to wit: BEGINNING at a point marked by an iron pin at the easterly line of North 3cio Street at the northerly line of Lot No. 20, Block M, on the Plan of Lots hereinafter mentioned; THENCE northwardly along said line of North 30th Street 60 feet to an iron pin; THENCE eastwardly through a portion of Lot No. 18, Block M, 131.84 feet to a stake on the westerly line of Lot No. 4; THENCE by the latter line and the western line of Lot No. 3, Block M, southwardly at an Interior angle of 87 degrees 29 minutes 65 feet to a stake at the corner of Lots No. 2, 19, and 20, Block M; THENCE westwardly at right angles along the northerly link of Lot No. 20, Block M, 122.25 feet to the place of BEGINNING BEING Lot No.; 19 and a small portion of Lot No.- 18, Block M, on the Plan of Beverly Park, said Plan'being recorded In Plan Book 3, Page 19, Cumberland County Records. HAVING THEREON. erected and one and one-haft story brick dwelling house, known and numbered as 215 North 31P Street, Camp Hill, Pennsylvania. UNDER AND SUBJECT, NEVERTHELESS, to any and all covenants, conditions, easements, rights of way, restrictions and matters of prior record and any matter which a physical inspection or survey of the property would disclose. BEING THE Sl ME PREMISES which L. Edward Sprague and Janet M. Sprague, his wife, by deed .dated August 28, 1961 and recorded September 16, 1961 in Deed Book H, Volume 20, Page 984 in the Office of the Recorder of Deeds of Cumberland May 05 2009 2:44PM Hall, Murren and Connell 1-717-232-2142 P.18 County, grante and conveyed unto Lester G. Kissinger and Anita M. Kissinger. Lester G. Kissinger d ed October 15, 2005 thereby vesting title solely to Anita M. Kissinger, lar the buildings, improvements, ways, streets, alleys, passages, waters, water-courses, rights, liberties, privileges, hereditaments and appurtenances whatsoever thereunto belonging, or in any wise appertaining and the reversions and remainders, rents, issues and profits thereof; and all the estate, right, title, interest, property, claim and demand whatsoever of them, the said Grantors, in law, equity, or otherwise howsoever, of, in, to or out of the same. TO HAVE AND TO HOLD the said lot or piece of ground above described, with the buildings and improvements thereon erected, hereditaments and premises hereby granted or mentioned, and intended so to be, with the appurtenances, unto the said Grantee, her heirs and assigns, to and for the only proper use and behoof of the said Grantee her heirs and assigns, forever. AND the said Grantor does hereby Warrant Specially the property hereby conveyed. IN WITNESS WHEREOF, said Grantor has hereunto set her hand and seal the day and year first above written. Signed, Seated and Delivered in the Presence of Witness 1-A `` ANITA M. KISSINGE COMMONWEALTH OF PENNSYLVANIA {? : SS COUNTY OF N-j ? k1 k1 t On this, the e-) 11 !"` day of 2008, before me, a Notary Public, the undersigned officer, personally a ared ANITA M. KISSINGER, known to me (or satisfactorily proven) 'to be the person whose name is subscribed to the within instrument, and acknowledged that she executed same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set.my hand and official seal. Novam K4 No ry Pu lic x6+un `. cwUSER NARK CRX N OOUNIV My C=M1 II Sep 10, 2008 May 05 2009 2:44PM Hall, Murren and Connell 1-717-232-2142 p.19 CERTIFICATE OF RESIDENCE I do hereby certify that the precise residence and complete post office address of the within Grantee is, 2153 Bordeaux Court Harrisburg, PA 17112 AtlomeylAgent for Grantee May 05 2009 2:44PM Ball, Murren and Connell 1-717-232-2142 ROBERT P. ZIEGLER RECORDER OF DEEDS CUMBERLAND COUNTY 1 COURTHOUSE SQUARE CARLISLE, PA 17013 717-240-6370 Instrument Number - 200929194 Recorded On 8/28/2408 At 8:15:04 AM * Instrument Type - DEED Invoke Number - 27983 User ID - MBL * Grantor -13SMGM ANITA M * Grantee - PANKO, JUANITA M * Customer - CORNERSTSONE LAND * rzzS STATE WRIT TAY $0.50 STATE JCS/ACCESS TO $10.00 JUSTICE RECORDING SEES - $12.50 RECORDER OF DEEDS AMRDAELZ ROUSING $11.50 COUNTY ARCHIVES Y= $2.00 ROD ARCHIVES FEE $3.00 CAM HILL SCHOOL $0.00 DISTRICT CAMP HILL HORO $0.00 TOTAL PAID $39.50 * Total Pages - 4 Certification Page DO NOT DETACH This page is now part of this legal document. I Certify this to be recorded in Cumberland County PA RECORDER OF D ADS * - Imfennatiem demoted by an asterisk may chomp dmrleg the veritiadon procen mad may not be reflected on this page. p. 20 OMWD I?I?N 11111111111111111 f ae • 4 41, uv?v Ppxld? ham. 0/1 --?----- ? ?U? IJC??.?? (/ V •__[J?J`?az.L? /'?"?/?+ ? %L ?? ? ?^?•Y A", ?!?' 'eS/7olM/i/'' A4 e- _ Olt J? -_ -__. ? Val '?.? ' ? •1 - ? '• j• f (j u v \ •1 .. .. A_/ I t ------------- - LESTER G. KISSINGER, JR., EXECUTOR, ESTATE OF ANITA M. KISSINGER, Plaintiff V. JUANITA M. PANKO, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW(EQUITY) NO. 09-2034 Civil Term CERTIFICATE OF SERVICE AND NOW, this day of May, 2009, I, Dale F. Shughart, Jr., Esquire, attorney for Plaintiff, hereby certify that I have served a copy of the First Amended Complaint by mailing a copy of the same by United States mail, postage prepaid, addressed as follows: Paige Macdonald-Matthes, Esquire SERRATELLI, SCHIFFMAN, BROWN & CALHOON, P.C. 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 1 Dale F. Shugha' t, . Supreme Court I.D.019373 10 West High Street Carlisle, PA 17013 (717) 241-4311 CF PE r f P.e .^ `U Serratelli, chiffnan, Brown & Calhoon, P. C. Paige Mac onald-Matthes, Esquire Pa. Attorn y I. D. No. 66266 2080 Lingl stown Road, Suite 201 Harrisbur , PA 17110 (717) 540-0170 (717) 540-5481 Attorneys r Defendant, Juanita M. Panko LESTER . KISSINGER, JR., EXECUT R, ESTATE OF ANITA KISSING R, PLAINTIFF, V. JUANITAI M. PANKO DEFENDANT : IN THE COURT OF COMA : CUMBERLAND COUNTY, DOCKET NO. 09-2034 CIVIL ACTION - LAW NOTICE TO PLEAD To: Le: c/o 10 Cap Yo to Plaintif: may be eni r G. Kissinger, Jr., Executor, Estate of Anita M. Kissinger c/o ale F. Shughart, Jr., Esquire est High Street ale. PA 17013 PLEAS NSYLVANIA are hereby notified to file a written response to the enclosed Preliminary Objections s Amended Complaint within twenty (20) days from service hereof or a judgment against you. Respectfully submitted, S? ? b,, a V.-4 Paige Macdonald-Matthes, Esquire Attorney ID No. 66266 SERRATELLI, SCHIFFMAN, BROWN & CALHOON, P.C. 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 (717) 540-9170 Date: Maly 28, 2009 Serratelli, chiffman, Brown & Calhoon, P. C. Paige Mac onald-Matthes, Esquire Pa. Attorn y I. D. No. 66266 2080 Lingl stown Road, Suite 201 Harrisbur , PA 17110 (717) 540-9170 (717) 5404481 Attorneys fir Defendant, Juanita M. Panko LESTER . KISSINGER, JR., : IN THE COURT OF COMMON PLEAS EXECUTOR, ESTATE OF ANITA : CUMBERLAND COUNTY, PENNSYLVANIA KISSING R, . PLAINTIFF, V. : DOCKET NO. 09-2034 CIVIL ACTION - LAW JUANITA M. PANKO, DEFENDANT COMPLAINT NOW, comes Defendant, Juanita M. Panko, (hereinafter "Defendant"), by and through he? counsel, Serratelli, Schiff nan, Brown & Calhoon, P. C., and files her Preliminary Objections to Plaintiff's Amended Complaint, and in support thereof aver as follows: COURT. Pa. R. Civ. P. 1028(a)(2) 1 A review of Count I of Plaintiff's Amended Complaint reveals that it purports to state a claim for "Fraud, Duress, Coercion and Undue Influence." 2. I There is no recognized independent cause of action for "duress," "coercion," or "undue influence" under Pennsylvania law. 3. The Pennsylvania Rules of Civil Procedure require that each valid cause of action and any special damage related thereto must be stated in a separate count containing a demand for relief. See Pa. R.Civ. P. 1020(a). (Emphasis added). 4. Count I of Plaintiff's Amended Complaint fails to conform to law or rule of court, specifically Pa. R.Civ. P. 1020(a), and should be dismissed accordingly. EREFORE, Defendant, Juanita M. Panko respectfully requests that this Honorable Court sustain her Preliminary Objection to Count I of Plaintiff's Amended Complaint, dismiss Count I of Plaintiffs Amended Complaint with prejudice and further award Defendant all such other relief?as is proper and just. 5 6 7 The averments set forth in paragraphs 1 through 4 are incorporated by reference as if more fully set forth at length herein. As previously stated herein, there is no recognized independent cause of action for "duress," "coercion," or "undue influence" under Pennsylvania law. In Count I of Plaintiffs Amended Complaint, Plaintiff also purports to set forth a cause of action for fraud relying in part on the averments set forth in paragraphs 1 through 7 of his Amended Complaint. 8. A review of paragraphs 1 through 7 of Plaintiffs Amended Complaint reveal that Plaintiff has failed to plead any facts with particularity that would support a cause of action for fraud. 9. A review of the allegations set forth in the remaining paragraphs of Count I of Plaintiff's Amended Complaint reveals that Plaintiff has likewise failed to plead any facts with particularity that would support a cause of action for fraud. 10. Pa. R.Civ. P. 1019(b) specifically requires that averments of fraud shall be averred with particularity. 11. Without the benefit of a more specific pleading, Defendant is unable to respond to Plaintiff's "fraud" claim set forth in Count I of his Amended Complaint and would further be prejudiced if she were required to do in the absence of more specific factual allegations which would support Plaintiff's claim. EREFORE, Defendant, Juanita M. Panko respectfully requests that this Honorable Court sustain her Preliminary Objection to Count I of Plaintiff's Amended Complaint, dismiss Count I of Plaintiffs Amended Complaint with prejudice and further award Defendant all such other relief 4s is proper and just. 12 13 14. The averments set forth in paragraphs 1 through 11 are incorporated by reference as if more fully set forth at length herein. As previously stated herein, there is no valid, recognized independent cause of action for "duress" or "coercion" or "undue influence" under Pennsylvania law. As there is no valid, recognized independent cause of action for "duress", "coercion" or "undue influence" under Pennsylvania law, Count I of Plaintiff's Amended Complaint fails to state a legal cause of action upon which relief can be granted. 15. A review of Count I of Plaintiff's Amended Complaint reveals that Plaintiff has failed to plead any facts with particularity that would support a cause of action for fraud. Specifically, Plaintiff has not pled any facts that would support a finding that the traditional test for fraud is satisfied, to wit: (1) a misrepresentation; (2) a fraudulent utterance; (3) an intention by the maker that the recipient will thereby be induced to act; (4) justifiable reliance by the recipient upon the misrepresentation; and (5) damage to the recipient as a proximate result. See e.g. Glover v. Severing, 946 A.2d 710 (Pa. Super. 2008). 16. Count I of Plaintiff's Amended Complaint fails to state a cause of action in fraud, or any other cause of action against Defendant and thus should be dismissed accordingly. WH?REFORE, Defendant, Juanita M. Panko respectfully requests that this Honorable Court sust0n her Preliminary Objection to Count I of Plaintiff's Amended Complaint, dismiss Count I of Plaintiff's Amended Complaint with prejudice and further award Defendant all such other relief 4s is proper and just. 17. The averments set forth in paragraphs 1 through 16 are incorporated by reference as if more fully set forth at length herein. 18.1 In Count II of Plaintiff's Amended Complaint, Plaintiff attempts to state a claim against Defendant for "intentional misrepresentation" based on alleged oral conversation between Defendant and the Decedent prior to the Decedent's death. 19. Plaintiff has failed to aver any specifics as to the alleged oral conversation that purportedly supports his claim for intentional misrepresentation, to wit: there is no allegation of a specific date, time or location where said oral conversation between the Defendant and Decedent allegedly took place. 20. A further review of the allegations set forth in Count II of the Plaintiff's Amended Complaint reveals that Plaintiff has failed to plead that any one other than the Defendant and the Decedent were parties to the alleged conversation which purportedly forms the basis of Plaintiff's intentional misrepresentation claim. 21. Without the benefit of a more specific pleading, Defendant is unable to respond to Plaintiff's "intentional misrepresentation" claim set forth in Count II of his Amended Complaint and would further be prejudiced if she were required to do in the absence of more specific factual allegations which would support Plaintiffs claim. WHEREFORE, Defendant, Juanita M. Panko respectfully requests that this Honorable Court sustain her Preliminary Objection to Count II of Plaintiffs Amended Complaint, dismiss Count II of Plaintiffs Amended Complaint with prejudice and further award Defendant all such other relief as is proper and just. 22. 23. 24. The averments set forth in paragraphs 1 through 21 are incorporated by reference as if more fully set forth at length herein. A review of Count II of Plaintiffs Amended Complaint reveals that Plaintiff purports to state a claim against Defendant for "intentional misrepresentation" based on oral statements that Plaintiff believes that Defendant may have made to the Decedent. A further review of Count II of Plaintiffs Amended Complaint reveals that Plaintiff has failed to plead any facts with particularity that would support a cause of action for intentional misrepresentation as to him. Specifically, Plaintiff has not pled any facts that would support a finding that the Defendant made any (1) representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it was true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) resulting injury proximately caused by the reliance. See e.g. Eiser v. Brown & Williamson Tobacco Corporation, 2006 WL 933394 (Pa. Super. 2006) citing Presbyterian Medical Center v. Budd, 832 A.2d 1066, 1072 (Pa. Super. 2003). 25. A further review of the allegations set forth in Count II of the Plaintiff s Amended Complaint reveals that Plaintiff has failed to plead that any one other than the Defendant and the Decedent were parties to the alleged conversation which purportedly forms the basis of Plaintiffs negligent misrepresentation claim. f 26.1 Based on the averments plead by the Plaintiff in his Amended Complaint, Plaintiff cannot sustain his cause of action for negligent misrepresentation without running afoul of the Dead Man's Act. Defendant, Juanita M. Panko respectfully requests that this Honorable Court sustain her Preliminary Objection to Count II of Plaintiff's Amended Complaint, dismiss Count 11 0 Plaintiff's Amended Complaint with prejudice and further award Defendant all such other relief las is proper and just. 4 27. 28 29. 30 31. The averments set forth in paragraphs 1 through 26 are incorporated by reference as if more fully set forth at length herein. A review of Count III of Plaintiff's Amended Complaint reveals that Plaintiff purports to state a claim against Defendant for "lack of capacity." There is no recognized independent cause of action for "lack of capacity" under Pennsylvania law. "Lack of capacity" is not an independent legal cause of action but rather is a challenge to the validity of a will or an affirmative defense to contract. As there is no recognized independent cause of action for "lack of capacity" under Pennsylvania law, Count III of Plaintiff's Complaint fails to state a legal cause of action upon which relief can be granted. Defendant, Juanita M. Panko respectfully requests that this Honorable Court sustain her Preliminary Objection to Count III of Plaintiffs Amended Complaint, dismiss Count III of Plaintiff's Amended Complaint with prejudice and further award Defendant all such other is proper and just. Respectfully submitted, Date 28, 2009 Paige Macdonald-Matthes, Esquire Pa. Attorney I.D. No. 662166 SERRATELLI, SCHIFFMAN, BROWN & CALHOON, P.C. 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 (717) 540-9170 Attorneys for Defendant VERIFICATION I, J Objections statements unsworn fa Date: -4 ita M. Panko verify that the statements made in the foregoing Preliminary to Plaintiff's Amended Complaint are true and correct. I understand that false herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to to authorities. ,V";L6d to M. Panko CERTIFICATE OF SERVICE I, P?ige Macdonald-Matthes, Esquire, do hereby certify that on this 28TH day of May, 2009, I ser?ed a copy of Defendant's Preliminary Objections to Plaintiff's Amended Complaint via United Mates Mail, First Class, postage pre-paid, to the following person(s): Dale F. Shughart, Jr., Esquire 10 West High Street Carlisle, PA 17013 ck,e.Q -.IJ. Paige Macdonald-Matth6, Esquire FILET - ; - ; l?If ?T1i ? k 22fulp iA 29 ? d i ? • 33 1 -. Paige Macd nald-Matthes, Esquire Serratelli, S hiff nan, Brown & Calhoon, P. C. Pa. Attorne I.D. No. 66266 2080 Lingle town Road, Suite 201 Harrisburg, PA 17110 (717) 540-9 70 (717) 540-5 81 Attorneys f Defendant, Juanita M. Panko LESTER . KISSINGER, JR., : IN THE COURT OF COMMON PLEAS EXECUT R, ESTATE OF ANITA : CUMBERLAND COUNTY, PENNSYLVANIA KISSING R, PLAINTIFF, V. : DOCKET NO. 09-2034 CIVIL ACTION - LAW JUANITA . PANKO, DEFENDANT PRAECIPE TO WITHDRAW MOTION WITHOUT PRE jVDICE To the Without County Prothonotary: withdraw Defendant, Juanita M. Panko's Motion to Disqualify Plaintiff's counsel, , filed on or about April 30, 2009. Respectfully submitted, a l .n - . I a k . - ?' . ,. Y-"l .. Paige Macdonald-Matthes, Esquire Attorney ID No. 66266 SERRATELLI, SCHIFFMAN, BROWN & CALHOON 2080 Linglestown Road Harrisburg, PA 17110 (717) 540-9170 Attorney for Defendant Date: Mayl 27, 2009 1 CERTIFICATE OF SERVICE I, Paige Macdonald-Matthes, Esquire, do hereby certify that on this 27 h day of May, 2009, I ser?ed a copy of Defendant's Praecipe to Withdraw Motion, Without Prejudice, via United Stags Mail, First Class, postage pre-paid, to the following person(s): Dale F. Shughart, Jr., Esquire 10 West High Street Carlisle, PA 17013 Richard E. Connell, Esquire Ball, Murren & Connell 2303 Market Street Camp Hill, PA 17011 With Courtesy Copy to: The Honorable Edward Guido Cumberland County Court of Common Pleas One Courthouse Square Carlisle, PA 17013 Paige Macdonald-Matthes, Esquire TFILED- :'' 77 7 9f Y 2 9 Pil 1:5j LESTER G. KISSINGER, JR., : IN THE COURT OF COMMON PLEAS EXECUTOR, ESTATE OF : CUMBERLAND COUNTY, PENNSYLVANIA ANITA M. KISSINGER, : CIVIL ACTION - LAW(EQUITY) Plaintiff V. . JUANITA M. PANKO, NO. 09-2034 Civil Term Defendant AMSW= TO DZPZNDANT' S PRFLI1tIMRY 08MCTIONS AND NOW, comes the Plaintiff, Lester G. Kissinger, Jr., Executor of the Estate of Anita M. Kissinger, Deceased, by his attorney, Dale F. Shughart, Jr., Esquire, and files the following Answer to Defendant's Preliminary Objections: 1-31. The Defendant filed a verified Preliminary Objection endorsed with a Notice to Plead. However, the Preliminary Objections involve Pa.R.C.P. 1028(a)(2)-(4), which are decided on the face of the Record. See Pennsvlvania Civil Practice, 4th Edition, §7.04, P. 98. Moreover, all of the Preliminary Objections are in the nature of Conclusions of Law either stating that the Complaint is insufficient (demurrer) or that insufficient facts are pleaded. Based upon the nature of the Preliminary Objections filed and the lack of any factual issues for determination by the Court, no Answer is required. The matter is ready for argument. Respectfully submitted, By: uC1.LC L . ,.ituyti i , Attorney I.D. 93 3 10 West High Street Carlisle, PA 17013 2 LESTER G. KISSINGER, JR., EXECUTOR, ESTATE OF ANITA M. KISSINGER, Plaintiff V. JUANITA M. PANKO, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW(EQUITY) NO. 09-2034 Civil Term CERTIFICATE OF SERVICE AND NOW, this?? day of June, 2009, I, Dale F. Shughart, Jr., Esquire, attorney for Plaintiff, hereby certify that I have served a copy of the Answer to Defendant's Preliminary Objections by mailing a copy of the same by United States mail, postage prepaid, addressed as follows: Paige Macdonald-Matthes, Esquire SERRATELLI, SCHIFFMAN, BROWN & CALHOON, P.C. 2080 Linglestown Road, Suite 2001 Harrisburg, PA 17110 Dale F. ShughArti, \J4. \ Supreme Court D. 9373 10 West High Street Carlisle, PA 17013 (717) 241-4311 FILE. c J 'ar THE- 2009 S;"*? --2 ii, i 9i IL-'j 10. - ?,? PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) LESTER G. KISSINGER, JR., EXECUTOR, : IN THE COURT OF COMMON PLEAS OF ESTATE OF ANITA M. KISSINGER, PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION LAW (EQUITY) Vs. JUANITA M. PANKO, DEFENDANT No. 09-2034 CIVIL TERM 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): ANSWER TO DEFENDANT'S PRELIMINARY OBJECTIONS 2. Identify all counsel who will argue cases: (a) for plaintiffs: DALE F. SHUGHART, JR., ESQUIRE 10 WEST HIGH STREET CARLISLE PA (b) for defendants: PAIGE MACDONALD-MATTHES ESQUIRE SERRATELLI SCHIFFMAN BROWN & CALHOON, P.C. 2080 Linglestown Road, Suite 201 Harrisburg PA 17110 (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Attorney for Plaintiff Date: June 1 2009 INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. Dale F. Shuehart, Jr. Print your name A-k d- 6 4- FILE , nF THE ARY 2@09.1!N --C SERRATELLI, SCHIFFMAN, BROWN & CALHOON, P. C. Paige Macdonald-Matthes, Esquire Supreme Court ID No. 66266 2080 Linglestown Road Harrisburg, PA 17110 (717) 540-9170 (717) 540-5481 facsimile Email: PMacdonald-Matthespssbc-law. com Attorneys for Defendant LESTER G. KISSINGER, JR., : IN THE COURT OF COMMON PLEAS EXECUTOR, ESTATE OF ANITA M. : CUMBERLAND COUNTY, PENNSYLVANIA KISSINGER, Plaintiff : DOCKET NO.: 09-2034 V. JUANITA M. PANKO, Defendant : CIVIL ACTION - IN LAW DEFENDANT'S MOTION FOR PROTECTIVE ORDER AND NOW, comes Defendant, Juanita M. Panko (hereinafter "Defendant") by and through her counsel, Serratelli, Schiffman, Brown & Calhoon, P. C., and files her Motion for Protective Order pursuant to Pa. R. Civ. P. 4012, and in support thereof aver as follows: The above referenced matter was commenced on or about April 1, 2009 by the filing of a Complaint by Plaintiff Lester G. Kissinger, Jr., Executor of the Estate of Anita Kissinger (hereinafter "Plaintiff') through his original counsel, Richard Connell, Esquire in the Court of Common Pleas in Cumberland County, Pennsylvania. 2. On April 23, 2009, Defendant filed her Preliminary Objections to Plaintiff's Complaint. 3. Defendant further filed a Motion to Disqualify Plaintiff's Counsel on or about April 30, 2009. 4. On May 12, 2009, Attorney Connell filed a Praecipe to Withdraw his Appearance in regard to the above captioned matter and Dale F. Shughart, Jr., Esquire filed his Praecipe entering his appearance on behalf of the Plaintiff in the above captioned matter. Attorney Shughart subsequently filed an Amended Complaint on behalf of Plaintiff on even date. 5. On or about May 28, 2009, the undersigned counsel wrote to Plaintiff's counsel, Dale E. Shughart, Jr., Esquire (hereinafter "Plaintiff's counsel") and advised him as follows: "Please be advised that I have prepared and will be filing preliminary objections to the Plaintiff's First Amended Complaint. In light of the same, I believe that scheduling my client's deposition at this time is premature. I will however, be happy to provide you with possible deposition dates at such time that the Court rules on the preliminary objections." 6. On May 29, 2009, Defendant filed Preliminary Objections to the Plaintiff's Amended Complaint. 7. On or about June 12, 2009, counsel for Plaintiff telephone the undersigned counsel and stated that "no one was going to tell him how to conduct discovery," and further "that he was going ahead with the scheduling of Defendant's deposition." To that end, Plaintiff's counsel suggested a number of dates including but not limited to August 13, 2009. 8. During the telephone call between counsel on or about June 12, 2009, the undersigned counsel specifically advised Plaintiff's counsel that (a) the scheduling of depositions was totally premature given the fact that if the court sustains Defendant's preliminary objections to the Plaintiff's Amended Complaint, this case is over; and (b) that she personally was unavailable on the dates proposed by Plaintiff's counsel due to previously scheduled court appearances, and depositions; (c) that she was trying to leave open the week of August 10, 2009, which would be the only week the undersigned counsel could take vacation with her children; and (d) she was unaware of her client's schedule at the time of the call. The undersigned counsel further advised Plaintiff's counsel that if he persisted in his efforts to schedule Defendant's deposition in advance of the Court's adjudication of the Defendant's preliminary objections she would file a motion for protective order. 9. On June 17, 2009, the undersigned counsel received a letter and Notice of Deposition from Plaintiff's counsel scheduling the Defendant's deposition for August 13, 2009- a date that the undersigned counsel specifically advised Plaintiff's counsel that she was trying to hold open so that she could vacation with her children. 10. On June 19, 2009, the undersigned counsel received Plaintiff's Interrogatories and Request for Production of Documents from Attorney Shughart. A review of the discovery requests reveal that in large part none of the Interrogatories are reasonably calculated to lead to the discovery of admissible evidence but instead are designed to embarrass, annoy, harass, etc. Defendant. By way of illustration, Plaintiff's Interrogatory No. 2 seeks information pertaining to Defendant's present marital status and "whether at the time of the incident [Defendant] was living and cohabitating with [her] spouse." 11. Not only does Plaintiff s Amended Complaint lack evidentiary and factual support which renders it legally defective, the Amended Complaint also contains numerous procedural errors which warrant the Court striking off of the same. 12. Defendant believes and therefore aver that her Preliminary Objections to Plaintiff's Amended Complaint will be sustained and that the Court will not permit Plaintiff to file a Second Amended Complaint based on the fact that Plaintiff cannot legally or factually support his claims against Defendant. 13. Pa. R.Civ. P. 4012 provides that upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court may make any order which justice requires to protect a party or person from unreasonable annoyance, embarrassment, oppression, burden or expense, including but not limited to an Order prohibiting the discovery requested. 14. Defendant believes and therefore avers that she will be prejudiced if she is required to submit to a deposition or respond to Plaintiff's written discovery requests in advance of the Court's adjudication of her pending preliminary objections to the Plaintiff's Amended Complaint especially in the event the Court sustains the preliminary objections and dismisses the Plaintiff s Amended Complaint. 15. Defendant further believes that Plaintiff's request to depose her in advance of the Court's ruling on the outstanding preliminary objections is proposed in bad faith, the sole purpose causing Defendant unreasonable annoyance, embarrassment, oppression, burden and/or expense and consequently is not permitted under Pa. R.Civ. P. 4011. Moreover, the scheduling of Defendant's deposition on a date that the undersigned counsel specifically advised Plaintiff's counsel that she was trying to hold open in order to take a vacation with her family is further evidence of Plaintiff and Plaintiff's counsel's bad faith. 16. Defendant will be prejudiced if the Court does not intervene and issue a protective Order prohibiting Plaintiff's from engaging in My kind of discovery, including but not limited to the scheduling of Defendant's deposition until such time the Court rules on Defendant's Preliminary Objections to Plaintiff's Amended Complaint. 17. To the contrary, Plaintiff will not be prejudiced by the issuance of a protective Order as the Court has yet to rule on the Defendant's preliminary objections which if sustained, will place the Plaintiff out of court. 18. This case is not currently assigned to a Judge. In a companion case filed to the Orphan's Court, Judge Ebert has been the Judge assigned to the Orphan's Court matter. 19. Plaintiff's counsel was advised during his recent telephone conversation with the undersigned counsel that if he persisted in pursuing the scheduling of a deposition of the Defendant that the undersigned counsel would be filing a Motion for Protective Order. Plaintiff's counsel indicated that he would not concur in the same. Subsequent to that telephone conversation Plaintiff's counsel was again contacted regarding the within Motion and it is presumed that Plaintiff's counsel has not changed his mind and continues to not concur in the within Motion. WHEREFORE, Defendant, Juanita M. Panko respectfully requests that this Honorable Court grant her Motion for Protective Order, issue a Protective Order preventing the Plaintiff from engaging in any discovery, including but not limited to the scheduling of Defendant's deposition prior to the Court's final adjudication of the Defendant's Preliminary Objections to Plaintiff's Amended Complaint, and further award Defendant all such other relief as is proper and just. Date: June 19, 2009 Respectfully submitted, Paige Macdonald-Matthes, Esquire SERRATELLI, SCHIFFMAN, BROWN & CALHOON, P.C. 2080 Linglestown Road Suite 201 Harrisburg, PA 17110 (717) 540-9170 Attorneys for Defendant VERIFICATION I, Juanita M. Panko verify that the statements made in the foregoing Motion for Protective Order are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Date: ` -l 0 uan to M. Panko CERTIFICATE OF SERVICE I, Paige Macdonald-Matthes, Esquire, hereby certify that on this 19TH day of June, 2009, I served a true and correct copy of the foregoing Defendant's Motion for Protective Order via facsimile and United States First Class Mail, postage paid upon the following: Dale F. Shughart, Jr., Esquire 10 West High Street Carlisle, PA 17013 1-717-241-4021 Facsimile Attorney for Plaintiff ?acm?P ll?r??? Paige Macdonald-Matthes ?.L'?' - ^? ?'Y !' .? LESTER G. KISSINGER, JR., IN THE COURT OF COMMON PLEAS EXECUTOR, ESTATE OF CUMBERLAND COUNTY, PENNSYLVANIA ANITA M. KISSINGER, CIVIL ACTION - LAW(EQUITY) Plaintiff V. . JUANITA M. PANKO, NO. 09-2034 Civil Term Defendant PLAINTIFF'S ANSWER TO DEFENDANT'S 14DTION FOR PROTECTIVE ORDLR AND NOW, comes the Plaintiff, Lester G. Kissinger, Jr., Executor, Estate of Anita M. Kissinger, by his attorney, Dale F. Shughart, Jr., Esquire, filed the following Answer to Defendant's Motion for a Protective Order. 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted in part. Denied in part. It is admitted that Plaintiff's attorney called Defendant's attorney in an effort to schedule Defendant's deposition. Previously, Plaintiff's attorney had attempted to agree upon a date for Defendant's deposition, to which Defendant's counsel had replied as stated in Paragraph 5 above. During the telephone conversation on or about June 12 Plaintiff's attorney again attempted to obtain a date from mid-July to the end of August during which Defendant's attorney could be available. Defendant's attorney stated that to Plaintiff's attorney approximately as follows: "I have no time available from mid-July through August." Plaintiff's attorney told Defendant's attorney he "could not believe" that she had no time available for a month for a half, and suggested she could get someone else to cover her at her client's deposition. In response, she stated approximately as follows: "I do not know what kind of attorney you are, but I am a trial attorney, and I spend 950 of my time in court." Plaintiff's attorney also advised Defendant's attorney she would file a Motion for Protective Order. Defendant's attorney suggested that they nevertheless agree upon a date in case her 2 motion was rejected by the court. Plaintiff's attorney provided Defendant's attorney through Monday, June 15 to provide him proposed dates at which she and her client could be available for a deposition. Defendant's attorney did not provide any available date(s) and the Deposition Notice was mailed on June 16. Plaintiff's attorney did not have any alternative but to pick a date (and he did pick one which defendant's attorney said she was holding open for a "possible family vacation"), in order to move the matter forward. Plaintiff's attorney was and is quite willing to reschedule another date, in the foreseeable future, which can be fixed by the court at the Rule Returnable hearing in regard to this Motion. 8. Admitted with qualification. Although defense attorney accurately states what she said to Plaintiff's attorney, what she omits is the fact that this case is not going to be dismissed, and it is ludicrous to suggest it might be. Plaintiff is confident that Defendant's Preliminary Objections will be dismissed shortly after Argument Court on July 22, well in advance of the deposition date. Plaintiff has every right under the Pa.R.C.P. to proceed at this time with discovery. 9. Admitted with qualification. Plaintiff's attorney 3 selected a date during the only time in a period of a month and a half during which Defendant's attorney stated she could be available for a deposition, knowing it was during the time when, to use her specific words, Defendant's attorney "hoped" to have a vacation with "her family". As stated above, Plaintiff's attorney is quite willing to reschedule another date in the foreseeable future, hopefully during the month of August, which is convenient to the Defendant and her attorney. Plaintiff's attorney hopes the rescheduled date can be fixed by the court at the Rule Returnable hearing, since there is obviously no possibility of Plaintiff's attorney and Defendant's attorney reaching any agreement concerning any matter in regard to this case. 10. Denied. No answer required. The Pa.R.C.P. provide for the manner in which Defendant is to respond to Interrogatories and to raise any objections in those inquiries. Under the Pa.R.C.P. this Motion for Protective Order is not an appropriate way in which to respond to Interrogatories. 11. Denied. Plaintiff's Complaint is more than legally sufficient, and Plaintiff is confident the Preliminary Objections will be dismissed shortly after Argument Court on July 22. 4 12. Denied. Plaintiff's Motion states Conclusions of Law and no answer is required. If an answer is required, averments of Plaintiff's Answer to Paragraph 11 are incorporated herein by reference thereto, and further, Plaintiff notes that the Defendant's Preliminary Objections in the nature of motions for more specific pleadings clearly contemplate that, if sustained to any degree, discovery would be necessary to enable the Plaintiff to file a more specific pleading. 13. Denied. This averments states a conclusion of law and no answer is required. 14. Denied. This case is properly pleaded and Plaintiff's Amended Complaint will not be dismissed. Plaintiff has every right to proceed expeditiously under the Rules of Civil Procedure. 15. Denied. Plaintiff is giving Defendant every reasonable opportunity to cooperate in the scheduling of depositions to enable the case to proceed forward expeditiously without inconvenience to the parties or their attorneys. As stated above, Plaintiff picked a date when he knows Defendant is 5 available and is quite willing to reschedule to a more convenient date in the foreseeable future. 16. Denied. Defendant will be prejudiced in no way by proceeding with discovery in accordance with Pa.R.C.P. 17. Denied. To the contrary, Plaintiff holds title and occupancy to real property which belonged to the decedent, and which she wrongfully procured by acts and omissions as set forth in Plaintiff's Amended Complaint. The longer the delay in resolving this matter, the more prejudice and financial loss the Plaintiff suffers. 18. Admitted in part. Denied in part. It is the Plaintiff's understanding that Honorable Edward E. Guido has been assigned to this case, and had previously scheduled a Rule Returnable hearing in regard to her Motion to Disqualify Plaintiff's prior attorney. 19. Denied. Plaintiff's attorney has had only one Telephone conversation with Defendant's attorney, on June 12. Plaintiff's attorney provided Defendant's attorney until Jun 15 to provide him available date(s) during August, and Defendant's attorney refused to cooperate in any way in regard to the scheduling of depositions. In Plaintiff's attorney opinion the only way to move this case forward will be through direct court 6 intervention, which will occur at the Rule to Show Cause hearing to be held in response to Plaintiff's Motion and this Answer. Respectfully submitted, ??eL Dale F. Sh 4 r. Supreme Court D. 19373 10 West High Street Carlisle, PA 17013 717-241-4311 Counsel for Plaintiff Lester G. Kissinger, Jr., Executor Estate of Anita M. Kissinger Dated: June 7 ? , 2009 7 VERIFICATION Lester G. Kissinger, Jr., Executor, Estate of Anita M. Kissinger, hereby verifies that the facts set forth in the foregoing Plaintiff's Answer to Defendant's Motion for Protective Order are true and correct to the best of his knowledge, information and belief, and understands that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsifications. Date: June oZ4 , 2009 LESTER G. KISSINGER, JR., EXECUTOR, ESTATE OF ANITA M. KISSINGER, Plaintiff V. JUANITA M. PANKO, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW(EQUITY) NO. 09-2034 Civil Term CERTIFICATE OF SERVICE AND NOW, this 26th day of June, 2009, I, Dale F. Shughart, Jr., attorney for Plaintiff, hereby certify that I have served Plaintiff's Answer to Defendant's Motion for Protective Order on Juanita M. Panko, Defendant and her attorney, Paige Macdonald-Matthes, Esquire by mailing a copy of the same by United States first class mail, postage prepaid, addressed as follows: Paige Macdonald-Matthes, Esquire SERRATELLI, SCHIFFMAN, BROWN & CALHOON, P.C. 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 Da Ue S u art, Jr. At y I.D #19373 10 West igh Street Carlisle, PA 17013 (717) 241-4311 Attorney for Plaintiff Lester G. Kissinger, Jr., Executor of Estate of Anita M. Kissinger FILG??-'. ;CT I'd DF THE PR' 2009 JUN 26 Ali 1-: LESTER G. KISSINGER, JR., EXECUTOR, ESTATE OF ANITA M. KISSINGER, Plaintiff V. JUANITA M. PANKO, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO.: 09-2034 CIVIL ACTION - IN LAW ?j? RULE AND NOW, this P5 day of June, 2009, upon consideration of Defendant's Motion for Protective Order, a Rule is issued to Plaintiff to show cause, if he has, why the relief requested in Defendant's Motion should not be granted. -3 RULE RETURNABLE on 47-tl 2009 in Courtroom No. , Cumberland County Court of Common Pleas, at It-36 a.m./Vn. J. Distribution List: Dale E. Shughart, Jr., Esquire, 10 West High Street, Carlisle, PA 17013 Paige Macdonald-Matthes, Esquire, 2080 Linglestown Rd., Harrisburg, PA 17110 ...uir Fi El OF 2009 JUL -1 AM i I: 10 CUmu ; ?{ SERRATELLI, SCHIFFMAN, BROWN & CALHOON, P. C. Paige Macdonald-Matthes, Esquire Supreme Court ID No. 66266 2080 Linglestown Road Harrisburg, PA 17110 (717) 540-9170 (717) 540-5481 facsimile Email: PMacdonald-Mattheskssbc-law. com Attorneys for Defendant LESTER G. KISSINGER, JR., IN THE COURT OF COMMON PLEAS EXECUTOR, ESTATE OF ANITA M. CUMBERLAND COUNTY, PENNSYLVANIA KISSINGER, Plaintiff DOCKET NO.: 09-2034 V. : CIVIL ACTION - IN LAW JUANITA M. PANKO, Defendant DEFENDANT'S SECOND MOTION FOR PROTECTIVE ORDER AND NOW, comes Defendant, Juanita M. Panko (hereinafter "Defendant") by and through her counsel, Serratelli, Schiffman, Brown & Calhoon, P. C., and files her Second Motion for Protective Order pursuant to Pa. R. Civ. P. 4012, and in support thereof aver as follows: 1. Abbreviated Procedural History 1. The above referenced matter was commenced on or about April 1, 2009 by the filing of a Complaint by Plaintiff Lester G. Kissinger, Jr., Executor of the Estate of Anita Kissinger (hereinafter "Plaintiff') through his original counsel, Richard Connell, Esquire in the Court of Common Pleas in Cumberland County, Pennsylvania. 2. On April 23, 2009, Defendant filed her Preliminary Objections to Plaintiffs Complaint. 3. On May 12, 2009, Attorney Connell filed a Praecipe to Withdraw his Appearance in regard to the above captioned matter and Dale F. Shughart, Jr., Esquire filed his Praecipe entering his appearance on behalf of the Plaintiff in the above captioned matter. Attorney Shughart subsequently filed an Amended Complaint on behalf of Plaintiff on even date. 4. On May 29, 2009, Defendant filed Preliminary Objections to the Plaintiffs Amended Complaint. II. Facts Supporting Defendant's Second Motion for Protective Order and Request for Sanctions 5. On or about May 28, 2009, the undersigned counsel wrote to Plaintiff s counsel, Dale E. Shughart, Jr., Esquire (hereinafter "Plaintiff s counsel") and advised him as follows: "Please be advised that I have prepared and will be filing preliminary objections to the Plaintiff s First Amended Complaint. In light of the same, I believe that scheduling my client's deposition at this time is premature. I will however, be happy to provide you with possible deposition dates at such time that the Court rules on the preliminary objections." 6. On or about June 12, 2009, counsel for Plaintiff telephone the undersigned counsel and stated that "no one was going to tell him how to conduct discovery," and further "that he was going ahead with the scheduling of Defendant's deposition." To that end, Plaintiff s counsel suggested a number of dates including but not limited to August 13, 2009. 7. During the telephone call between counsel on or about June 12, 2009, the undersigned counsel specifically advised Plaintiff s counsel that (a) the scheduling of depositions was totally premature given the fact that if the court sustains Defendant's preliminary objections to the Plaintiff's Amended Complaint, this case is over; and (b) that she personally was unavailable on the dates proposed by Plaintiff s counsel due to previously scheduled court appearances, and depositions; (c) that she was trying to leave open the week of August 10, 2009, which would be the only week the undersigned counsel could take vacation with her children; and (d) she was unaware of her client's schedule at the time of the call. The undersigned counsel further advised Plaintiff s counsel that if he persisted in his efforts to schedule Defendant's deposition in advance of the Court's adjudication of the Defendant's preliminary objections she would file a motion for protective order. 8. On June 17, 2009, the undersigned counsel received a letter and Notice of Deposition from Plaintiff s counsel scheduling the Defendant's deposition for August 13, 2009- a date that the undersigned counsel specifically advised Plaintiff s counsel that she was trying to hold open so that she could vacation with her children. 9. On June 19, 2009, the undersigned counsel received Plaintiff s Interrogatories and Request for Production of Documents from Attorney Shughart. A review of the discovery requests reveal that in large part none of the Interrogatories are reasonably calculated to lead to the discovery of admissible evidence but instead are designed to embarrass, annoy, harass, etc. Defendant. By way of illustration, Plaintiff s Interrogatory No. 2 seeks information pertaining to Defendant's present marital status and "whether at the time of the incident [Defendant] was living and cohabitating with [her] spouse." 10. Based on Plaintiff's counsel's actions, Defendant filed her first Motion for Protective Order on or about June 19, 2009. As of the date of the filing of this second motion, this Honorable Court has not yet issued a Rule regarding Defendant's first Motion for Protective Order seeking an Order preventing Plaintiff and his counsel from engaging in any discovery, including but not limited to the scheduling of Defendant's deposition until such time that the Court rules on Defendant's Preliminary Objections to Plaintiff's Amended Complaint. 11. Notwithstanding the fact that Defendant's Motion for Protective Order is currently pending before this Honorable Court, on June 24, 2009, Plaintiff's counsel sent a letter to the undersigned counsel advising her as a fait accompli that he was going forward with the scheduling of the depositions of two witnesses in the above captioned matter. 12. On June 24, 2009, the undersigned counsel wrote to Plaintiff's counsel reminding him that she had filed a Motion for Protective Order seeking to stay all discovery, including the scheduling of depositions, and further that said Motion for Protective Order was currently pending before the Court. The undersigned counsel specifically requested that Plaintiff's counsel cease and desist in his efforts to continue discovery and that if he failed to honor this request that a second motion for protective order would have to be filed and a request for sanctions would be made due to the Plaintiff's vexatious and obdurate conduct. 13. On June 25, 2009, Plaintiff's counsel sent a three (3) page letter to the undersigned counsel in which he again stated that he was entitled to proceed with discovery and further added that he was so entitled to proceed with discovery "whether or not other motions are pending." To that end, Plaintiff's counsel made the following statement: "To summarize, please either provide me your available deposition dates for your client and the non-party witnesses by July 10, and I will select Dates which are also available to me me; or have your assistant coordinate directly with Bonnie to calendar these dates, especially for your client's deposition and the depositions of the non-party witnesses." 14. As previously averred in Defendant's originally filed Motion for Protective Order which is currently pending before this Honorable Court, not only does Plaintiff's Amended Complaint lack evidentiary and factual support which renders it legally defective, the Amended Complaint also contains numerous procedural errors which warrant the Court striking off of the same. 15. Defendant believes and therefore aver that her Preliminary Objections to Plaintiff's Amended Complaint will be sustained and that the Court will not permit Plaintiff to file a Second Amended Complaint based on the fact that Plaintiff cannot legally or factually support his claims against Defendant. 16. Pa. R.Civ. P. 4012 provides that upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court may make any order which justice requires to protect a party or person from unreasonable annoyance, embarrassment, oppression, burden or expense, including but not limited to an Order prohibiting the discovery requested. 17. As a direct and proximate result of Plaintiff's conduct, Defendant has had to prepare and file the within motion. 18. Plaintiff, as well as Plaintiff's counsel's continued insistence on pursuing discovery while a Motion for Protective Order is pending before this Honorable Court constitutes vexatious and obdurate conduct for which sanctions should be imposed. 19. Defendant believes and therefore avers that she will be prejudiced if she is required to submit to a deposition or respond to Plaintiff's written discovery requests in advance of the Court's adjudication of her pending preliminary objections to the Plaintiff s Amended Complaint especially in the event the Court sustains the preliminary objections and dismisses the Plaintiff s Amended Complaint. Likewise, Defendant will be prejudiced if she is required to participate in any other discovery, which will necessarily cause her to incur counsel fees and costs, prior to the Court ruling on her Preliminary Objections. As previously stated herein, if the Court determines to sustain the Preliminary Objections to the Plaintiffs Amended Complaint and dismisses the Amended Complaint, then Defendant would have had to incur the additional costs associated with discovery for nothing. 20. Defendant further believes that Plaintiff s request to depose her in advance of the Court's ruling on the outstanding preliminary objections is proposed in bad faith, the sole purpose causing Defendant unreasonable annoyance, embarrassment, oppression, burden and/or expense and consequently is not permitted under Pa. R.Civ. P. 4011. Moreover, the scheduling of Defendant's deposition on a date that the undersigned counsel specifically advised Plaintiffs counsel that she was trying to hold open in order to take a vacation with her family is further evidence of Plaintiff and Plaintiff s counsel's bad faith. 21. Defendant will be prejudiced if the Court does not intervene and issue a protective Order prohibiting Plaintiff from engaging in ggy kind of discovery, including but not limited to the scheduling of Defendant's deposition until such time the Court rules on Defendant's Preliminary Objections to Plaintiff's Amended Complaint. 22. To the contrary, Plaintiff will not be prejudiced by the issuance of a protective Order as the Court has yet to rule on the Defendant's preliminary objections which if sustained, will place the Plaintiff out of court. Moreover, this Honorable Court has yet to rule on Defendant's originally filed Motion for Protective Order, which if granted, will stay all discovery in this matter until such time that the Court rules on the Defendant's Preliminary Objections. 23. Defendant does not believe that this case is not currently assigned to a Judge. In a companion case filed to the Orphan's Court, Judge Ebert has been the Judge assigned to the Orphan's Court matter. 24. Plaintiff's counsel was provided a copy of the within Motion prior to Defendant's filing the same with this Honorable Court. Plaintiff's counsel does not concur in the same. WHEREFORE, Defendant, Juanita M. Panko respectfully requests that this Honorable Court grant her Second Motion for Protective Order, issue a Protective Order preventing the Plaintiff from engaging in any discovery, including but not limited to the scheduling of Defendant's deposition prior to the Court's final adjudication of the Defendant's Preliminary Objections to Plaintiff's Amended Complaint, impose sanctions against Plaintiff and/or his counsel in the form of counsel fees and costs in amount not less than $1,000, and further award Defendant all such other relief as is proper and just. Date: July 2, 2009 Respectfully submitted, Paige Macdonald-Matthes, Esquire SERRATELLI, SCHIFFMAN, BROWN & CALHOON, P.C. 2080 Linglestown Road Suite 201 Harrisburg, PA 17110 (717) 540-9170 Attorneys for Defendant VERIFICATION I, Juanita M. Panko verify that the statements made in the foregoing Second Motion for Protective Order are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. 1 Date: " ch-? J anita M. Panko CERTIFICATE OF SERVICE I, Paige Macdonald-Matthes, Esquire, hereby certify that on this 2"d day of July, 2009,1 served a true and correct copy of the foregoing Defendant's Second Motion for Protective Order via facsimile and United States First Class Mail, postage paid upon the following: Dale F. Shughart, Jr., Esquire 10 West High Street Carlisle, PA 17013 1-717-241-4021 Facsimile Attorney for Plaintiff Paige Macdonald-Matthes O 7? M V 9 11 t LESTER G. KISSINGER, JR., EXECUTOR, ESTATE OF ANITA M. KISSINGER, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. DOCKET NO.: 09-2034 JUANITA M. PANKO, Defendant CIVIL ACTION - IN LAW RULE AND NOW, thisb#day of July, 2009, upon consideration of Defendant's Second Motion for Protective Order, a Rule is issued to Plaintiff to show cause, if he has, why the relief requested in Defendant's Second Motion should not be granted. RULE RETURNABLE on 2009 in Courtroom No. -, Cumberland County Court of Common Pleas, at w• Da a.m./p." J. D' ribution List: ale E. Shughart, Jr., Esquire, 10 West High Street, Carlisle, PA 17013 aige Macdonald-Matthes, Esquire, 2080 Linglestown Rd., Harrisburg, PA 17110 . C' , ', ,,,l,C T A ,ti -.,, 1 0- THE 2009 JUL -7 Aid 9' i 0 Serratelli, Schiffman, Brown & Calhoon, P. C. Paige Macdonald-Matthes, Esquire Pa. Attorney I.D. No. 66266 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 (717) 540-9170 (717) 540-5481 Attorneys for Defendant, Juanita M. Panko LESTER G. KISSINGER, JR., EXECUTOR, ESTATE OF ANITA KISSINGER, PLAINTIFF, v. JUANITA M. PANKO DEFENDANT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET N0.09-2034 CIVIL ACTION -LAW NOTICE TO PLEAD To: Lester G. Kissinger, Jr., Executor, Estate of Anita M. Kissinger c/o c/o Dale F. Shughart, Jr., Esquire 10 West High Street Carlisle, PA 17013 You are hereby notified to file a written response to the enclosed New Matter to Plaintiff s Amended Complaint within twenty (20) days from service hereof or a judgment may be entered against you. Respectfully submitted, Paige acdonald-Matthes, Esquire Attorney ID No. 66266 SERRATELLI, SCHIFFMAN, BROWN & CALHOON, P.C. 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 (717) 540-9170 Date: August 27, 2009 Serratelli, Schiffman, Brown &Calhoon, P. C. Paige Macdonald-Matthes, Esquire Pa. Attorney I.D. No. 66266 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 (717) 540-9170 (717) 540-5481 Attorneys for Defendant, Juanita M. Panko LESTER G. KISSINGER, JR., EXECUTOR, ESTATE OF ANITA KISSINGER, PLAINTIFF, v. JUANITA M. PANKO, DEFENDANT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET N0.09-2034 CIVIL ACTION -LAW DEFENDANT'S ANSWER, TOGETHER WITH NEW MATTER TO PLAINTIFF'S AMENDED COMPLAINT AND NOW, comes Defendant, Juanita M. Panko, (hereinafter "Defendant"), by and through her counsel, Serratelli, Schiffman, Brown &Calhoon, P. C., and files her Answer, Together with New Matter to Plaintiffs Amended Complaint, and in support thereof aver as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Denied as stated. It is denied that "On August 22, 2008, decedent allegedly executed and acknowledged an instrument purporting to be a fee simple deed." To the contrary, the decedent did execute and properly acknowledge a fee simple deed which was recorded in the Office of the Recorder of Deeds on August 28, 2008, by Cornerstone Land as Instrument No. 200829194, as is evidenced by Plaintiff s Exhibit "C." 6. Denied as stated. The Deed is a written document that speaks for itself. It is further denied that "Plaintiff was not made aware of the existence of the alleged Deed until Defendant told him on September 12, 2008, a week after his Mother's death." To the contrary, Plaintiff was aware of the fact that (a) his Mother intended to convey her real estate to Defendant and that (b) the decedent did in fact transfer her real property via actual (not alleged) Deed to the Defendant. 7. Admitted in part and denied in part. It is admitted that at the time the Deed was signed, the decedent suffered from advanced terminal cancer which caused her considerable pain throughout her body for which she was properly treated. It is denied that the Decedent was 80 years of age. To the contrary, she was 79 years of age. It is further denied that at the time the Deed was signed, decedent was "weak in mind" such that she was "easily influenced and was not possessed of sufficient mental capacity to comprehend the true meaning of the Deed or the effect of her act." COUNTI FRAUD, DURESS, COERCISION, AND/OR UNDUE INFLUENCE 8. Incorporation paragraph. No response required. 9. Admitted in part and denied in part. It is admitted that the decedent and two (2) of her three (3) children, Lester and Juanita, met with Attorney Richard Connell at the decedent's home on June 10, 2008. It is denied that Attorney Connell was the decedent's attorney. It is further denied that Defendant (Juanita) was not present for the entire conference. 10. Admitted in part and denied in part. It is admitted that during the meeting on June 10, 2008 between Attorney Connell, the Plaintiff, the Defendant, and the Decedent, the Decedent's Will was reviewed and that the Decedent was satisfied that her Will was in proper form. It is denied that the Decedent made any representations to Attorney Connell as "her attorney," as Attorney Connell was present at the home of the Decedent at the request of Plaintiff and Defendant. It is admitted that the Decedent did not change her Will. 11. Defendant is without knowledge sufficient to form a belief as to the truth of the matter asserted, to wit: "A specific discussion was held ...regarding the future of the Decedent's residence," and strict proof of the same is demanded at the time of trial. By way of further reply, the Decedent made it clear to everyone present at her home on June 10, 2008 that she wanted the Defendant to have her home. 12. Denied. It is denied that Attorney Connell gave any "specific advice" to the Decedent, as Attorney Connell did not represent the Decedent. It is further denied that the explanation set forth in paragraph 12 of the Plaintiff's Amended Complaint was the same explanation that was provided to the Parties by Attorney Connell during the meeting at the Decedent's residence on June 10, 2008. The balance of the averments set forth in paragraph 12 of the Plaintiff's Amended Complaint state conclusions of law to which no response is required. 13. Admitted in part and denied in part. It is admitted that the Decedent advised all who were present at her residence on June 10, 2008 that she wanted the Defendant to have ownership of her real estate. It is denied that the Decedent "advised her attorney that ultimately ownership of her real estate should vest in the Defendant," as Attorney Connell was not the Decedent's attorney. Finally, it is denied that there was any further discussion as to the purported "equalization of shares in the Decedent's estate" by virtue of "estate planning" that would take place after the Decedent's death. 14. Defendant is without knowledge sufficient to form a belief as to the truth of averments set forth in paragraph 14 of Plaintiff's Amended Complaint and strict proof of the same, if relevant, is demanded at the time of trial. 15. Defendant is unclear as to what Plaintiff is intending to say in paragraph 15 of his Amended Complaint and a request for further clarification and more specific pleading is hereby made. By way of further reply, it is denied that there was any agreement, nor any obligation on the part of the Decedent to dispose of her real and personal property only after her death. 16. Denied as stated. It is denied that "From June 10, 2008 until Decedent's death in September 5, 2008, the Decedent remained bedridden." 17. Admitted in part and denied in part. It is admitted that Dr. Andrew Panko is the husband of Defendant. It is further admitted that Dr. Panko provided medical care to the Decedent and that he occasionally visited with the Decedent at her home. It is denied that Dr. Panko was the Decedent's "attending physician." By way of further reply, Dr. Panko was one of several physicians who were treating the Decedent. 18. Admitted. 19. Admitted in part and denied in part. It is admitted that as the Decedent's physical condition continued to deteriorate, she was dependent upon her children, as well as her care givers through hospice, to administer her medications and insure that she was properly cared for. It is denied that the Decedent's "mental condition continued to deteriorate." The balance of the averments set forth in paragraph 20 of the Plaintiff's Amended Complaint state conclusions of law to which no response is required. 20. Denied. It is denied that "from June 10, 2008 until Decedent's date of death on September 5, 2008, almost three months later, the Defendant occupied a superior and overmastering position over Decedent, intellectually and physically, and had the opportunity to use, and did use, that superiority to the disadvantage of the Decedent." 21. Denied. It is denied that "Defendant [at any time] began and pursued a course of conduct consisting of words, acts, and omissions of acts which should be taken, to `convince' the Decedent to deed the Property to the Defendant prior to her death, despite the decision of the Decedent made with proper legal advice, while her pain was less, and her mental condition more clear." By way of further reply, and as is admitted by Plaintiff in paragraph 13 of his Amended Complaint, it was always the Decedent's stated intention that ownership of her real estate should vest with the Defendant. Finally, it denied that Decedent was advised to do anything by Attorney Connell as Attorney Connell did not represent the Decedent. 22. Denied. It is denied that Defendant engaged in any "course of conduct" or made any "statements," or committed any "acts or omissions" which "convinced" the Decedent to deed her real property to the Defendant prior to her death. To the contrary, the Decedent simply followed through with what she had made clear to everyone who was present during the meeting at her home on June 10, 2008, to wit: that she wanted the Defendant to have her home. 23. Admitted in part and denied in part. It is admitted that the Deed was prepared by Cornerstone Land, a title company. Defendant is without specific knowledge as to the truth of the balance of the averments set forth in paragraph 23 of Plaintiff's Amended Complaint and strict proof of the same, if relevant, is demanded at the time of trial. 24. Admitted. 25. Denied. It is denied that the Defendant committed any "acts and omissions" that prompted the Decedent to sign the Deed to her real property to Defendant. It is further denied that the Defendant committed any untoward "act" or "omission: in the care of the Decedent and any suggestion to the contrary is not only a blatant misstatement of fact, but is utterly offensive. The balance of the averments set forth in paragraph 25 of Plaintiff's Amended Complaint state conclusions of law to which no response is required. 26. Denied. It is denied that the "Decedent [sic] used her overmastering position over the Decedent for the sole purpose and design of constraining the Decedent to execute the Deed in favor of the Defendant." It is further denied that the Decedent's desire to execute the Deed in favor of the Defendant during her life has anything to do with the Decedent's stated intentions in her Will. 27. Denied. It is denied that the "purported ownership of the Property by the Defendant was procured through fraud, duress, coercion, and/or undue influence." Finally, it is denied that the Defendant committed any "wrongful acts." WHEREFORE, Defendant, Juanita Panko, respectfully requests that this Honorable Court enter judgment in her favor and against the Plaintiff, dismiss the Plaintiff's Amended Complaint with prejudice, and further award Defendant all such other relief as is proper and just. COUNT II- INTENTIONAL MISREPRESENTATION 28. Incorporation paragraph. No response required. 29. Denied. It is denied that Defendant engaged in any "course of conduct" as set forth in Plaintiff s Amended Complaint designed to cause the Decedent to execute a Deed in her favor. It is further denied that Defendant "deliberately misrepresented and stated unto Decedent that Plaintiff, Lester Kissinger, intended and/or was in the act of selling possessions of the Decedent, contrary to her express wishes, and in abuse of a Power of Attorney under which Plaintiff was handling the Decedent's financial affairs." 30. Denied. It is denied that the Defendant made ANY statements to the Decedent in regard to the conduct of Plaintiff, Lester Kissinger. Defendant is without knowledge sufficient to form a belief as to the truth of the balance of the averments set in paragraph 30 of Plaintiff's Amended Complaint and strict proof of the same, if relevant, is demanded at the time of trial. Finally, and by way of further reply, in the companion Orphan's Court matter, the Plaintiff was directed to provide Defendant with an accounting as of June 15, 2009. As of the date of this pleading, Plaintiff has failed to comply with the Court's citation. 31. Denied. It is denied that It is denied that the "purported ownership of the Property by the Defendant was by ...misrepresentation." It is further denied that the Defendant "improperly now claims to own the Property." To the contrary, Defendant does in fact properly own the Property in accordance with the Decedent's express wishes and stated intention during her life. WHEREFORE, Defendant, Juanita Panko, respectfully requests that this Honorable Court enter judgment in her favor and against the Plaintiff, dismiss the Plaintiff's Amended Complaint with prejudice, and further award Defendant all such other relief as is proper and just. COUNT III- LACK OF CAPACTY 32. Incorporation paragraph. No response required. 33. Admitted in part and denied in part. It is admitted that during the course of care being provided to the Decedent by her three children, a daily ledger was maintained. While Defendant can attest to the accuracy of her own record keeping abilities, she cannot attest to the accuracy of the record keeping abilities of her siblings and thus strict, corroborated proof of the accuracy of the Plaintiff's entries in the daily log book, as well as those entries made by Defendant's other sibling, Jacob Kissinger is hereby demanded. 34. Denied. The ledger sheet which Plaintiff has attached as Exhibit "D" to his Amended Complaint does not "demonstrate that on August 22, 2008, the Decedent was in an acute, confused mental state, and unable to attend day to day business activities." By way of further reply, the ledger sheet is a written document that speaks for itself. 35. Denied. It is denied that the ledger sheet for August 22, 2008 that Plaintiff has attached to his Amended Complaint as Exhibit "D" reflects that "Decedent suffered tremendous physical pain, which required the administration of pain killing drugs and anxiety reducing medication, which induced mental confusion and an ability to communicate meaningfully." By way of further reply, the ledger sheet is a written document that speaks for itself. 36. Denied. It is denied that the ledger sheet attached to Plaintiff's Amended Complaint as Exhibit "D" reflects that Decedent was not provided with her medicine on that day. By way of further reply, the ledger sheet is a written document that speaks for itself. 37. Denied. It is denied that "at the time of the alleged conveyance, Decedent had weakened intellect evidenced by confusion due to stress, fatigue and the ravishing effects of her illness, and lacked the ability to comprehend the matters involving the slightest complexity." 38. Denied. It is denied that "at the time of the alleged conveyance, Decedent was too weak, disoriented or medicated, to have know what was presented to her for execution, and was too weak to have understood oral review." It is further denied that Decedent was not given her medication, as a plain reading of Plaintiff's Exhibit "D," as well as the first sentence of paragraph 38 of Plaintiff's Amended Complaint reveals. 39. Denied. It is denied that the Decedent suffered from any mental confusion that would have rendered her incapable of knowingly and voluntarily executing the Deed conveying her real property to Defendant, as was her stated intention all along. WHEREFORE, Defendant, Juanita Panko, respectfully requests that this Honorable Court enter judgment in her favor and against the Plaintiff, dismiss the Plaintiff's Amended Complaint with prejudice, and further award Defendant all such other relief as is proper and just. NEW MATTER 40. The answers set forth in paragraphs 1 through 39 are incorporated by reference as if more fully set forth at length herein. 41. Plaintiff has admitted that the Decedent specifically advised him of her intention to convey her real property to the Defendant prior to her death. 42. As the Decedent's Will did not speak until the time of her death, the Decedent was free to dispose of her real and personal property in any manner she so chose prior to her death. 43. Exhibit "D" attached to Plaintiffs Amended Complaint does not state that the Decedent was "mentally confused" on August 22, 2008. 44. Exhibit "D" attached to Plaintiffs Amended Complaint does not state that the Decedent was in "an acute, confused mental state." 45. Exhibit "D" attached to Plaintiffs Amended Complaint does not state that the Decedent was not given her medication on August 22, 2008. 46. Plaintiff has failed to state a cause of action for fraud. 47. Plaintiff has failed to state a cause of action for intentional misrepresentation. 48. There is no legally recognizable cause of action for "Lack of Capacity." 49. Plaintiff s claims are barred under the Dead Man's Act. 50. Plaintiff s claims are barred under the doctrine of merger. 51. Plaintiff's claims are barred by laches. 52. The damages claimed by Plaintiff bear no cause or relationship to any act or alleged failure to act on the part of Defendant. 53. Plaintiff has failed to state any cause of action against Defendant for which relief may be granted. WHEREFORE, Defendant, Juanita Panko, respectfully requests that this Honorable Court enter judgment in her favor and against the Plaintiff, dismiss the Plaintiff's Amended Complaint with prejudice, and further award Defendant all such other relief as is proper and just. Respectfully submitted, Date: August 27, 2009 Paige Macdonald-Matthes, Esquire Pa. Attorney I.D. No. 66266 SERRATELLI, SCHIFFMAN, BROWN & CALHOON, P.C. 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 (717) 540-9170 Attorneys for Defendant CERTIFICATE OF SERVICE I, Paige Macdonald-Matthes, Esquire, do hereby certify that on this 27`" day of August, 2009, I served a copy of Defendant's Answer, Together With New Matter to Plaintiff's Amended Complaint via United States Mail, First Class, postage pre-paid, to the following person(s): Dale F. Shughart, Jr., Esquire 10 West High Street Carlisle, PA 17013 Paige Macdonald-Matthes, Esquire VERIFICATION I, Juanita M. Panko verify that the statements made in the foregoing Answer Together with New Matter to Plaintiff s Amended Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Date: ~+ ~ GZ/11~.0 J to M. Panko ~JF T~;F ,I~ .,;,, {y.~.,,~Y liu ~~ .~ FIB t7• J U ..~P`J CA on'-Y ,~_ ~, ~,M~. ~ , c~~,. ~~ a f-~ .~'~t <,, PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: ^ for JURY trial at the next term of civil court. ^X for trial without a jury. CAPTION OF CASE (entire caption must be stated in full) LESTER G. KISSINGER, JR., EXECUTOR, ESTATE OF ANITA M. KISSINGER Z~IO JAN 2~ ; ~ ?;: ~;; L ' 'Tl. ;; V i !" ~ ., t ,. i , i (check one) Q Civil Action -Law ^ Appeal from arbitration ® Equity (other) (Plaintiff) vs. JUANITA M. PANKO, vs. (Defendant) The trial list will be called on N/A and Trials commence on Pretrials will be held on (Briefs are due S days before pretrials No. OQ-ao3y l%ivi ~ Term Indicate the attorney who will try case for the party who files this praecipe: Dale F. Shughart, Jr., Esquire Indicate trial counsel for other parties if known: Paige Macdonald-Matthes, Esquire This case is ready for trial. January 28, 2010 Date: Dale F Print Name: Plaintiff Attorney for: ~c~15.O~ P O AT't`1 ~# 1~9 er# a~q~i LESTER G. KISSINGER, JR., IN THE COURT OF COMMON PLEAS OF EXECUTOR, ESTATE OF CUMBERLAND COUNTY, PENNSYLVANIA ANITA M. KISSINGER, Plaintiff V. JUANITA M. PANKO, 2009 - 2034 CIVIL TERM Defendant ORDER OF COURT AND NOW, this 5TH day of FEBRUARY, 2010, a pretrial conference in the above captioned matter is SCHEDULED for ~~ ~ g ~~~~ ~ ~'~~/ 4 •~ • in Chambers of the undersigned judge, Cumberland County Courthouse, Carlisle, Pennsylvania. Pretrial memorandum shall be submitted by counsel in accordance with C.C.R.P. 212-4, at least five (5) days prior to the pretrial conference. ~ DALE F. SHUGHART, JR., ESQUIRE PAIGE MACDONALD-MATTHES, ESQUIRE :sld P a js1~~ ~-h'1 ~ C o a ~ ~ - E rn ~;-, ~~_ ri ~ ~ ~~' ~ ~~, : ~ ~ J ~ A C ' C7 ~~ w ~ ~;awara E. Guido, J. ~ - - - s. _ T FE8 212010 ~ L4~IUrcu t~ ~. ':~ G~FJ°ti~~~.Rt.r~'S P~~Y` LESTER G. KISSINGER, JR., : IN THE COURT OF COMMON PLEAS EXECUTOR, ESTATE OF CUMBERLAND COUNTY, PENNSYLVANIA ANITA M. KISSINGER, CIVIL ACTION - LAW(EQUITY) Plaintiff v. JUANITA M. PANKO, N0. 09-2034 Civil Term Defendant ORDER Off' COURT a~ ~ .. AND NOW, this ~V day of 2010, on Motion of Plaintiff, Lester G. Kissinger, Jr., Executor of the Estate of Anita M. Kissinger, the above captioned case be and is hereby removed from the trial list and the pre-trial conference scheduled for March 19, 2010 at 9:30 a.m. is cancelled. Counsel for either party may list the case for trial upon completion of Discovery. '~ ~_ .. ~- ~ ~ i By: Edward E. Guido, J. Cc le F. Shughart, Jr., Esquire " Paige Macdonald-Matthes, Esquire ~p~~- ~~~ dlza `~o -~~ 3 • - - r 2Q ~ Q FFB ~ 2 F~ ~ f2~ 4 I r ~; ~ . ~~~ a LESTER G. KISSINGER, JR., IN THE COURT OF COMMON PLEAS EXECUTOR, ESTATE OF CUMBERLAND COUNTY, PENNSYLVANIA ANITA M. KISSINGER, CIVIL ACTION - LAW(EQUITY) Plaintiff . v. JUANITA M. PANKO, NO. 09-2034 Civil Term Defendant . LOTION TO ROVE FRON TgIAL LIST Dale F. Shughart, Jr., Esquire, attorney for the Plaintiff, Lester G. Kissinger, Jr., Executor of the Estate of Anita M. Kissinger, deceased, states as follows: 1. The undersigned filed a Praecipe listing the above case for trial on January 28, 2010. 2. By Order dated February 5, 2010 a Pretrial Conference is scheduled for 9:30 a.m. on Friday, March 19, 2010 before Honorable Edward E. Guido. 3. That the Defendant, by and through her attorney, Paige Macdonald-Matthes, Esquire, has served the undersigned with written Interrogatories and a Motion for Production of Documents. 4. That Plaintiff had completed Discovery in October, 2009 and had assumed that Defendant had elected not to engage in Discovery, but did not expressly inquire in that regard. 5. Under the circumstances the case is not at issue. WHERAS, the Plaintiff, Lester G. Kissinger, Jr., Executor, prays Your Honorable Court to remove the case from the trial list and provide that either party may relist the case when discovery is completed. Dale F. Sh g r r. Attorney I. 193 3 10 West High Street Carlisle, PA 17013 (717) 241-4311 Attorney for Plaintiff Lester G. Kissinger, Jr., Executor Estate of Anita M. Kissinger Cc Dale F. Shughart, Jr., Esquire Paige Macdonald-Matthes, Esquire s+ LESTER G. KISSINGER, JR., EXECUTOR, ESTATE OF ANITA M. KISSINGER, Plaintiff v. JUANITA M. PANKO, To the Prothonotary: IN TIIE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION EQUITY NO. 09-2034 Defendant PRAECIPE TO DISCONTINUE ~ ° ~- ~ ~ ~; ,,~ ~ ni i ~ s ~ ~ :-.;_ c,a ~ ~ . ~ Kindly mark the above-captioned action Settled and Discontinued with prejudice. Respectfully ,Submitted: ,~~ Dale F. Shughart, b'r., Esquire I.D. # 19373 10 West High Street Carlisle, PA 17013 (717) 241-4311 ~ ~~ ~ r ;~ Date ~ 1 ! / Attorney for Plaintiff Lester G. Kissinger, Jr. Executor of the Estate of Anita M. Kissinger .~ CERTIFICATE OF SERVICE I, Bonnie L. Coyle, herby certify that I have on the below date caused a true and correct copy of the foregoing Praecipe to be served on the person and in the manner indicated below: FIRST CLASS MAIL POSTAGE PRE-PAID ADDRESSED AS FOLLOWS: Juanita M. Panko 215 North 30`~ Street Camp Hill, PA 17011 Date ~~ ' ~~? °'~Q Bonnie L. Coyle