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HomeMy WebLinkAbout04-07-09d ra ~ o ~ O a.cs i- j ~~4] ~Y~ : v ~ -J ;~-~ ~ ~ ro C.~ _= Howard B. Krug, Esquire ~ ~'`.' PA Supreme Court ID# 16826 ~ ~ Purcell, Krug & Haller 1719 North Front Street Harrisburg, PA 17102 Phone: (717) 234-4178 Fax: (717) 234-0409 hkrugCa~pkh.com IN RE: IN THE COURT OF COMMON PLEAS CUMBERLAND CO., PENNSYLVANIA LYNN S. DUM, :ORPHANS' COURT DIVISION DECEASED NO. 21-07-0065 PETITION TO DISINTER AND RELOCATE REMAINS AND NOW, comes the Petitioner, Alma S. Dum, Executrix for the Estate of Lynn S. Dum, Deceased, who files this Petition to Disinter and Relocate Remains and avers as follows: 1. Petitioner is Alma S. Dum, Executrix for the Estate of her son, Lynn S. Dum, residing at 2498 Shermans Valley Road, Elliottsburg, Perry County, Pennsylvania. 2. Respondent is Creedon Fertenbaugh, Executor for the Estate of his daughter, JoAnn F. Dum, residing at 615 South York Street, Mechanicsburg, Cumberland County, Pennsylvania. 3. Lynn S. Dum (hereinafter "Decedent") and JoAnn F. Dum (hereinafter _~ ~_~ f_.~i C-~, '_ ~~ t e ~. L7 ~__~' -. `_ ~_- -; ~ r-~_ ..:~ -;, "Wife") were married on October 9, 1982. 4. Decedent died testate on December 21, 2006, survived by Wife and Petitioner/Mother; however, Wife became the Administratrix for the estate of her husband, originally declaring there was no Last Will. 5. Within two days after Decedent's death, Wife purchased two adjoining cemetery plots located at the New Bloomfield Cemetery Association (109 S. Carlisle Street, New Bloomfield, PA), and Decedent's remains were interred in one of the plots. 6. It was Petitioner's understanding that Wife would provide a gravemarker for Decedent and intended, upon her own death, to be buried beside him in the remaining plot; therefore, Petitioner, did not object to her son being buried in a poor location. 7. Wife subsequently died testate on April 2, 2008, survived by her parents. 8. Neither Decedent nor Wife had surviving issue. 9. Wife's remains were not buried next to Decedent but rather at the Gate of Heaven Cemetery, 1313 South York St., Mechanicsburg, Cumberland County. 10. Neither Wife nor Respondent ever provided a headstone for Decedent's plot, and twenty-seven (27) months after his death, Decedent's grave remains without a headstone or permanent marker. 11. Furthermore, Decedent's grave site is located in an isolated, uneven area of the cemetery, immediately adjacent and close to a forest with acliff-like drop, which makes it difficult terrain for anyone to access. 12. After Wife's death, at the request of the New Bloomfield Cemetery and Nickel Funeral Home, Petitioner contacted Respondent by letter of June 19, 2008 seeking permission to remove the body of Decedent for reburial at the Dum family 2 cemetery (Snyder's Cemetery, 1724 New Bloomfield Road, New Bloomfield, Pennsylvania), in a more appropriate and accessible topographic location with a headstone. (A copy of which letter is attached hereto and marked as Exhibit "A".) 13. By response of July 22, 2008, Attorney Barbara Sumple-Sullivan, Respondent's counsel, indicated that Respondent accepted Petitioner's proposal to remove Decedent's remains, so long as the cost for relocating the body was borne exclusively by Petitioner and the former burial plot would be sold as the property of Respondent. (A copy of the July 22, 2008 letter is attached hereto and marked as Exhibit "B".) 14. This condition was accepted by Petitioner in her attorney's letter of August 14, 2008, attached hereto as Exhibit "C", which contractually settled this issue, with consideration passing to Respondent (plot and sale proceeds). 15. In justifiable reliance upon this agreement, Petitioner's counsel secured and revised the funeral home's documentation for signature by Respondent, permitting the move, forwarding the revised form to Respondent's counsel by cover letter dated October 7, 2008, which letter is attached hereto as Exhibit "D". 16. As a result and in reasonable reliance on the agreement between the parties settling this issue, Petitioner's counsel expended three (3) hours in contacts with the funeral home, Respondent's counsel, and in revising the aforesaid permission form, resulting in a charge to Petitioner of $585. 17. Two months later, after calls to Respondent's counsel, Respondent's counsel finally responded on December 8, 2008, advising that Respondent was suddenly unwilling to have Decedent's remains moved. (A copy of the December 8, 2008 letter is attached hereto and marked as Exhibit "E".) 3 18. On February 25, 2009, Petitioner received Letters Testamentary to serve as Executor for her son's estate. 19. Petitioner believes and therefore avers that the Respondent should be ordered to cooperate with Petitioner in removing the remains, including execution of the proffered Permission Form, on the following basis: A. Respondent should be held to the settlement agreement reached between the parties; B. Decedent's spouse is now deceased, her family does not really care, and Petitioner-Mother has a strong, legally recognized interest by virtue of her lineal relationship and fiduciary capacity; C. Petitioner, her family and Decedent's friends are the only persons who desire to visit this unmarked, isolated and hazardously located gravesite; D. Petitioner, Decedent's Mother, is 85 years old, handicapped, and unable to negotiate this potentially dangerous and uneven terrain; E. When Respondent had his daughter's remains buried, he disregarded her intentions, as shown by her original purchase of two adjoining plots at the time of Decedent's death; F. Respondent would suffer no prejudice by being bound to the contract he made, as such would enrich his daughter's estate, as there is a buyer for the two plots; 20. Petitioner seeks Court approval to have the Decedent's remains disinterred from the New Bloomfield Cemetery and relocated to Snyder's Cemetery at 4 her expense, with the approval and cooperation of the New Bloomfield Cemetery and the assistance of a funeral home of her choice. WHEREFORE, Petitioner, Alma S. Dum, respectfully requests this Honorable Court to issue a Citation on Respondent, Creedon J. Fertenbaugh, to show cause why the Petition to Disinter and Relocate the Remains of Decedent should not be granted and Respondent be compelled to pay for all attorney fees incurred by Petitioner in good faith reliance on Respondent's representations and agreement. ~.~PURCELL, KRUG & I-jA1Ll_'~ By: Date: " ~ ` ~~ ~ B. Krug, E Att 826 171 North Front Street Harrisburg, PA 17102 (717) 234-4178 Attorney for Petitioner 5 ~cNggokHqoiok~k~k~k -COMM. JOURNAL- 8c~k~lgc***~k~k~lok****~q~c*~c DATE JUN-19-2008 ~IokNokHc TIME 1105 ~k~k~k*~lok~k~k MODE = MEMORY TRANSMISSION FILE N0.=486 STN N0. COMM. ABBR N0. 001 OK s START=JUN-19 11 04 END=JUN-19 11 05 STATION NAME/TEL N0. PAGES DURATION 97747059 001/001 00~00~16 -PURCELL KRUG RND HALLER - '~'~*~*~~~**~*~**** -7172340409 - ***** - 7172340409- *~k~K*~k~k~c ~/LAW OFFICES y~J ~~ HOwnRDB, KRUG ~ T I4 NORTH f RgNT $TRE$7 HERSHEY LEON P. HALLER fI~RR1SBURG. PC:NN$YLVANIA 17102-2392 ~»» ssa.~asa ]OtC~W.PuRCHUIR. TELEPHONE (J17) 234.4178 7n~4M.w~n F'nX (71 T) 234-0409 JOSEPH NISSLEY(5810•SB821 NICHOLE hL S7ALEY O•Gox!aarl LLSa A. RYkAND JOHN w a1mcELL OF GOI.NElL June 19, 2008 ~+ F'AX ONLY: 774-7059 Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070-1931 Re: Estate of Lynn S. Dum Dear Barbara: Pursuant to my telephone call to your office, I am =orwarding this letter to advise that I represent Alma 5. Dum, Executrix for the Estate of Lynn S. Dum. Without getting into all of the entanglements, my client wishes to accomplish the following: 1. Exhume the bpdy of Mr. Dum and burry it with other members of the Dum family. 2. Close out the Estate of Lynn Dum. 3. Transfer the 1936 Olds vehicle to Mrs. Dum and move it to her residence. 4, Move all jointly awned vehicles to a property owned by the Estate of Joanne F. bum. I look forward to speaking with you. HBK/ase Sincere ~ u , H and B. rug EXHIBIT s LAW OFFICES BARBARA SUMPLE-SULLIVAN 549 BRIDC3E STREET NEW CUMBERLAND, PENNSYLVANIA 17070-1931 P$oNE (717) 774-1445 FAX (717) 774-7059 July 22, 2008 Howard B. Krug, Esquire Purcell, Krug & Haller 1719 North Front Street " Harrisburg, PA 17102-2392 Re: Estate of JoAnn F, llum Dear Howard: I have reviewed your letter of June 19, 2008 and the Executor of JoAnn's Estate responds as follows: 1. My client has no objection to the removal of the body of Mr. Dum so that he could be buried with other members of the Dum family. I understand that your client will bear all costs related to the relocation of the body. I understand that after the exhumation, JoAnn's Estate is free to sell the cemetery plot. 2. I am not involved in the Estate of Lynn S. Dum and suggest that you speak with the attorney of the estate, Elyse Rogers, Esquire. 3. My client is willing to relinquish the 1936 Olds vehicle to Mrs. Dum. I would like a copy of the title verifying it is titled in the names of Lynn Dum and his mother. Once the title is provided, please have your client provide three times which would be convenient for her to pick the vehicle up and/or otherwise exchange all vehicles between the parties. 4. Agreed. Please see also the coordination of date and time referenced above. I also wanted to confirm that this will include a Honda truck, a Dodge pickup truck and a trailer. If there are other vehicles, please advise. ~'' I will await your advice. BSS/lh cc: Creedon J. Fertenbaugh, Executor EXHIBIT s 1J Ql l/Q1Q UlLi11~.J1G-J U111YQ11 *~aaa~~**** -COMM. JOURNRL- ***************~** DATE AUG-14-2008 *~** TIME 14:37 ***~ MODE MEMORY TRANSMISSION START=AUG-14 14 34 END=AUG-14 14 37 FILE N0.-827 STN N0. COMM. ABBR N0. STRTION NAME/TEL N0. PAGES DURRTION 001 OK $ 97747059 015/015 00~03~02 -PURCELL KRUG AND HALLER - **aaanc* *c***** -7172340409 - >~** - 7172340409- ****>~ LAW OFFICES -G, C~~~ V C~9~:~LLLP/J~ Ho1PARD8.KRUC 1 719 NORTH FRONT STREET N4RSNGv LEON P. HALLER HARRISBURG, PENNSYLVANIA 17102-2392 (717)833-3136 Jor~WPUSCEU-JR TELEP1~lOxE {717) 234-4178 Jtu.M. Wz~'axe FAX (7! 7) 234-0409 JOS~PM NISSLlY (1910.19!2) N~exoue M- SCALEY d'Gona~AN LJS,A A. RY'.JJtD JOnN w. PIJA~~{ Oe Co~su August 14, 2006 VIA FAX ONLY: 774-7059 Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070-1931 Re: Estate of JoAnn F. Dum Dear Barbara: With regard to your letter of July 22, 2008, I hereby respond as follows: 1. Agreed. I have asked my client to secure a cemetery form to be signed by the Executor of the Estate of JoAnn so that we may proceed. The cemetery requires that this be done before exhumation. JoAnn's Estate shall then be free to sell the plot. 2. I will contact Elyse Rogers. 3. Enclosed is a copy of the current title, as well as a copy of the Inheritance Tax filed by the Estate of Lynn Dum, showing that the 1936 Olds vehicle was jointly owned with Mrs. Dum prior to death. Mrs. Dum took the original joint title to PennDot and had the title transferred to hex, as you can see. Please advise when your client can accommodate us; i.e „ week of (date), we will then provide three dates and times. If a time of day (morning, afternoon) is better, please advise now. 4. With regard to the vehicles you mention, Mrs. Dum has asked that you provide me with copies of the titles to vehicles in the name of T,ynn Dum or joint with JoAnn. Upon receipt, she will then make those vehicles available to your client. It is my understanding that we have a 1989 Dodge Dynasty, 1983 Mazda pickup truck, a 1995 Dodge Ram pickup and a Dove trailer. EXHIBIT G Barbara Sumple-Sullivan, Esquire August 14, 2008 Page 2 Enclosed is a list of personal property that Mrs. Dum previously provided Ms. Rogers. See attached correspondence. Many of these items are family heirlooms or were held by Lynn Dum for his mother during her divorce. They were never the property of Lynn or JoAnn Dum, and Elyse Rogers confirmed the personal property issue in her letter. Please review the list of items and advise when Mrs. Dum can retrieve the items. To the extent you have a problem returning an item, please provide the reason. Mrs. Dum has been consistent in her request for these items to be returned throughout. My client also advises that she had loaned $4,000 to her son and daughter-in-law so that they .could purchase the Mazda pickup truck in 1983. She believes that it is time for the debt to be repaid. If you need additional documentation, I will certainly provide same. Thank you. HBK/ase Enclosure cc: Alma Dum ~Iaok~awk~*~~da~* -COMM. JOURNAL- *******~wk*******~k* DATE OCT-07-2008 *~k~ TIME 15=24 ***>k~k*** MODE ° MEMORY TRANSMISSION FILE N0.°143 STN N0. COMM. RBBR N0. 001 OK Y START=OCT-07 15 24 END=OCT-07 15:24 STATION NRME/TEL NO 97747059 PAGES DLRATION 002/002 00~00~23 ~** ~*~>~*** -7172340409 tAW OFFICES HOrvARUB.1CxuG 1719 Nf)RTH FRANT $TRIiiiT HERSHEY E.EON P. HALLER HAARtSH1FRC, PF.NNSYI.VANTA 17102-2392 (~~~) sas•aeae lOa.~w.rl,,eCau.JR. TEL£1'HO~FE (717) 134-4178 J1u.M.WINFF.KA FAX (717) 234-0409 JOSePHNISSIeY(1970.1987) NICHOlJrM. STALEYO'GOAMn.\ __.,___.___.~... LISA A. AY'.~tA11D JOHN W. PURCEII Os Couwn October 7, 2008 VIA FAX ONLY: 774-7059 Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070-1931 Re: Estate of JoAnn Dum/Lynn S. Dum Dear Barb: Enclosed is the revised Nickel Funeral Home agreement removing Armillda's name and identi~yinq Creedon as the Executor for the Estate of JoAnn Dum. Please have your client execute this agreement as soon as possible. Should you have any questions, do not hesitate to contact me. Thank you. HBK/ase Enclosure EXHIBIT a 8 -PURCELL KRUG RND HALLER - - ~*** - 7172340409- **>~~ NICKEL FUNERAL HOME JAMES F. NICKEL 3626 SHERMANS VALLEY ROAD LOYSVILLE, PA 17047 PHONE: 717-789-3107 FAX PHONE: 717-789-2276 I, Creedon J. Fertenbaugh, Executor for the Estate of JoAnn Dum, deceased, agree to allow the mother (Alma Dum of Elliottsburg, PA) of Lynn S. Dum, deceased, to disinter Lynn S. Dum from Bloomfield Cemetery, New Bloomfield, PA and reinter Lynn S. Dum deceased, in Snyder's Cemetery, Duncannon, PA. Alma Dum may contract with the Nickel Funeral Home, P.O. Box 910, 3626 Shermans Valley Road, Loysville, PA 17047 to perform this service. Alma Dum is responsible for all costs to perform this disinterment and reinterment of Lynn S. Dum, our late son-in-law. I agree to have this contract legally notarized. Creedon J. Fertenbaugh, Executor for the Estate of JoAnn Dum COMMONWEALTH OF PENNSYLVANIA ss. COUNTY OF On this, the day of , 2008, before me, the undersigned officer, personally appeared CREEDON J. FERTENBAUGH, Executor for the Estate of JoAnn Dum, known to me (or satisfactorily proven) to be the person whose name is subscribed to the foregoing instrument, and acknowledged that he executed it for the purposes therein contained. WITNESS my hand and official seal the day and year aforesaid. Notary Public My Commission Expires: far.. ~. ~00~ 9~57Afi1 _ _ P1a.507? P. i Y.,AW OFFICER $AR$ARA S7[71viPLE-SULLIVAN' s4s B.RIna~ E3mx.~r~7e NEW CUNdBBF~LANn, ~ENN6YLVA1~tIA 17070-1951 pIiONE (717) 774-1446 FAX (717) 774-7059 becember 8, 2008 Howard B. Krug, Esquire Purcell, Krug & Haller 1719 North Pront Street Harrisburg, PA 17102-2392 Re: Estate of JoAnn F. Dum Dear Howard: 1 was able to reach my client this morning. It appears that the family recalls X,ynn's direct expressed wishes of being buried in New Bloomfield. Therefore, in au effort to meet these stated desires, he is unwilling to agree to have him disinterred at this time. ~~ Sincerel~'y~nus, ,~~- '" -~~~ %~ :~ C'~ BSS/lh cc: Creedon J.1~ertenbaugh, Executor f t Barbara Sumple-Sullivan EXHIBIT VERIFICATION foregoing I, ALMA S. DUM, EXECUTRIX, hereby verify that the facts contained in the Petition to Disinter and Relocate Remains are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. ALMA S. DUM, EX CUTRIX Date: a p a CERTIFICATE OF SERVICE I, Angela S. Shaffer, employee for the law firm of Purcell, Krug & Haller, counsel for Petitioner, Alma S. Dum, hereby certify that service of the foregoing PETITION TO DISINTER AND RELOCATE REMAINS was made on the following via first class, regular mail on Aril 6, 2009: Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070-1931 Attorney for Respondent .~ Ang a S. Shaffer