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HomeMy WebLinkAbout04-14-09McNees Wallace & Nurick LLC Elizabeth P. Mullaugh I.D. No. 76397 Kimberly M. Colonna I.D. No. 80362 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 717-232-8000 IN RE: IN RE: ESTATE OF LOTTIE IVY DIXON DECEASED QTIP TRUST U/A GEORGE F. DIXON, Jx. N ~~ ~ R;`, r ~ c ~i `vf-i ~ ~~ rn .~ `j~''R x- . - rz,4 ~~ ~ a c.*~ S s .~ `~ .{ ~ "~ b ~ •• .- '_ ~ r- r7 r W Ty IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DNISION No. 21-07-0686 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION No.21-1994-0754 Name of Judge Who Issued Prior Related Rulings: The Honorable J. Wesley Oler, Jr. Issue Previously Ruled Upon: Appointment of Wayne F. Shade as Auditor MOTION FOR ORDER SETTING SCHEDULE FOR DISCOVERY AND HEARING ON OBJECTIONS Pursuant to Pa. O.C. Rule 3.1 and Pa. R. Civ. P. 208.1, Marshall L. Dixon, Executor of the Estate of Lottie Ivy Dixon, by and through his attorneys McNees Wallace & Nurick LLC, files this Motion seeking an order of court setting a schedule for discovery and the hearing in two sets of objections pending with acourt-appointed auditor. In support of this Motion, the Executor states as follows: 1. Marshall L. Dixon filed his First and Partial Account of the administration of the Estate of Lottie Ivy Dixon, his mother, on July 24, 2008 (the "Estate Account"). Following the filing of Objections by Richard E. Dixon, George F. Dixon, III and Manufacturers and Traders Trust Company ("Objectors"), in various individual and/or fiduciary capacities, this honorable Court appointed Wayne F. Shade, Esquire as Auditor on August 26, 2008. By letter dated September 16, 2008, the Auditor noted that Objectors were seeking to pursue discovery and requested Objectors' counsel to indicate what discovery would be needed and how much time would be needed to complete it. A true and correct copy of this correspondence from the Auditor is attached hereto as Exhibit "A". 4. By letter dated September 26, 2008, Objectors' counsel outlined Objectors' intended discovery, which included, inter alia, a deposition of the Executor and reappraisals of property. Objectors' counsel indicated that discovery was proposed to be completed in January and that Objectors' counsel anticipated submitting apre-hearing memorandum to the Auditor by the end of January, 2009. A true and complete copy of this correspondence from Objectors' counsel is attached as Exhibit "B." As of the date hereof, discovery related to the Estate Objections has not been completed, no pre-hearing memorandum has been submitted and the Auditor has not scheduled a hearing on the Objections. 6. The Auditor has suggested that no express legal authority exists for an auditor to resolve discovery disputes and/or to impose sanctions or other enforcement actions due to lack of progress in the discovery process. Counsel for the Executor has likewise been unable to locate any such express authority. 7. In a related matter, Richard E. Dixon, George F. Dixon, III and Manufacturers and Traders Trust Company have filed their account as Co-Trustees of the George F. Dixon, Jr. QTIP Trust (the "Trust Account") and Objections have been filed with respect to the Trust Account, which came before this honorable Court on March 3, 2009. At that time, Mr. Shade was appointed as the Auditor to resolve the Objections to the Trust Account. 8. Proposed schedules for discovery related to Objections to the Trust Account were submitted by counsel for the Objectors by correspondence dated March 27, 2009. True and complete copies of this correspondence to the Auditor are attached as Exhibit "C." 9. The Auditor has proposed that the Objections on both the Estate Account and the Trust Account be consolidated for purposes of discovery and hearing. 10. In order to have both sets of Objections move toward resolution promptly, the Executor requests that the Court enter an order in the form attached, (a) ordering consolidation of the Objections for purposes of discovery and hearing, and (b) setting a schedule for the completion of discovery, the submission ofpre-hearing memoranda by the parties, and the hearing in those matters. 11. In the alternative, Executor requests that the Court issue an order confirming an Auditor's inherent authority, as aCourt-appointed fact finder, to adjudicate discovery matters related to the hearing on the objections, subject to review by the Court. Executor requests that the order expressly authorize and direct the Auditor to: set a schedule for the completion of discovery; resolve discovery disputes between the parties; impose sanctions for the failure to comply with discovery obligations and deadlines; and schedule a hearing on the Objections. 12. Executor's counsel sought the concurrence of counsel for the other parties in this Motion on April 1, 2009. Mr. Sullivan indicated his wncurrence in the motion. As of the date of this filing, Mssrs. Otto and Smith have not responded to the request for concurrence. WHEREFORE, the Executor requests that the Court enter the attached order setting forth consolidation of the matters and a schedule for discovery, pre-hearing memoranda, and hearing on the Objections. Respectfully submitted, WALLACE & NURICK LLC No. Date: April ~, 2009 Kimb~ly-IoL Colonna I.D. No. 80362 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 717- 232-8000 Attorneys for the Executor CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the forgoing documents were served by first-class mail, postage prepared, upon the following: Stanley A. Smith, Esquire Rhoads & Sinon, LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 No V. Otto, Esquire Martson Law Offices 10 E. High Street Cazlisle, PA 17013 Daniel L. Sullivan, Esquire Saidis, Flower & Lindsay 2109 Market Street Camp Hill, PA 17011 Wayne F. Shade, Esquire 53 W. Pomfret Street Cazlisle, PA 17013-3217 Elizabeth P. Mu u ~ ~~ Dated: April 13, 2009 ~`7