HomeMy WebLinkAbout09-24-04 IN RE: : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
ELEANOR U. COOLIDGE : ORPHANS' COURT DIVISION
: NO. 21-03-936
MOTION FOR TRIAL CONTINUANCE, ORDER DIRECTING RELEASE OF
MEDICAL RECORDS AND RECONSIDERATION OF DENIAL OF PETITIONER'S
REQUEST FOR TRIAL BY JURY
NOW, this p~9~ ~/'' day of .~~.~'~.~2004, Petitioner, Julia
AND
Elizabeth Coolidge-Stolz, by and through her counsel, R. Mark Thon~:Esquke, move~this
court for relief and in support thereof respectfully represents: ~ c~ ';::::
1. On or about March 29, 2004, Respondents herein adm~ted to l~bate a certain
sai~
writing which they declared to be the Last Will and Testament of the tes~frix, writing being
dated December 8, 2003. o
2. On or about July 2, 2004, Petitioner filed a Petition for Citation contesting the
December 8, 2003 writing as being invalid due to the lack of testamentary capacity of the
testatrix on its date of execution and/or due to the writing of December 8, 2003 being procured
by undue influence exerted by either one or both of the Respondents herein.
3. On or about July 30, 2004, this court issued an Order scheduling a pre-hearing
conference for September 22, 2004, a trial date of October 13, 2004 and therein denied
etmoner s request for a jury trial.
4. Due to a scheduling conflict with counsel for Petitioner the pre-hearing
conference was rescheduled for September 28, 2004.
5. For the reasons stated herein and the legal authority set forth in a Memorandum of
Law to be submitted to the court at the pre-hearing conference, Petitioner herein seeks the
following relief.
MOTION FOR CONTINUANCE
6. Paragraphs 1 through 5 are incorporated herein as if set forth at length.
7. The court has scheduled trial in this matter to be held on October 13, 2004.
8. Petitioner is not able to be prepared for trial on October 13, 2004 for the following
reasons:
a. Petitioner has subpoenaed records from Green Ridge Village Nursing
Home, Chambersburg Hospital, J. Craig Jurgenson, M.D., Joseph M. Brazel, M.D., James
Hegary, M.D. and the Carlisle Hospital, which have yet to be produced.
b. Without such records Petitioner cannot adequately and completely prepare
for trial.
c. Petitioner's expert, Bruce H. Price, M.D., McLean Hospital, 115 Mill
Street, Belmont, MA, has to review those medical records before he can provide relevant expert
testimony with regard to the testamentary capacity and the suggestibility of the testatrix to undue
influence at the time in question.
d. As indicated in the letter from Bruce H. Price, M.D. dated September 16,
2004, and attached hereto, Petitioner's expert is not available for trial until at the earliest
December 2004, but preferably in January or February 2005.
e. The medical records requested and subpoenaed along with the expert
testimony of Bruce H. Price, M.D. are absolutely necessary for Petitioner to present a full and
complete case in support of the Petition for Citation.
9. A continuance of two and one-half months to enable Petitioner to completely and
adequately prepare for trial and have available to her an expert witness to testify on Petitioner's
behalf will not work an unreasonable prejudice upon the Respondents herein.
MOTION FOR RECONSIDERATION OF DENIAL FOR
REQUEST OF JURY TRIAl,
10. Paragraphs 1 through 9 are incorporated herein as if set forth at length.
11. Admittedly, the decision as to whether or not to grant a jury trial in a Will contest
is left to the discretion of the court.
12. For the reasons set forth in a Memorandum of Law to be submitted to the court on
September 28, 2004, Petitioner requests that the court reconsider its denial of the Petitioner's
request for a jury trial in this matter.
MOTION FOR A COURT ORDER FOR RELEASE
OF MEDICAL RECORDS
13. Paragraphs I through 12 are incorporated herein as if set forth at length.
14. Despite having receive a proper subpoena for release of medical records the
Chambersburg Hospital has refused to release its medical records without a court order.
15. These medical records are relevant to a determination by Petitioner's expert as to
the testamentary capacity and weakened intellect of the testatrix.
16. Petitioner requests that this court sign the attached Order directing Chambersburg
Hospital to release these medical records to Petitioner's counsel.
WHEREFORE, for the reasons set forth herein, Petitioner requests that the court issue the
following relief to Petitioner:
a. A Court Order granting Petitioner's request for a continuance of the trial
of this matter to a date in either January or February 2005;
b. That the court, upon reconsideration of Petitioner's request for a jury trial,
issue a new Order granting Petitioner's request for a jury trial; and
c. That the court sign the attached Order directing Chambersburg Hospital to
release the medical records of the testatrix.
Respectfully submitted,
R. Mark Thomas, Esquire
ID# 41301
101 S. Market Street
Mechanicsburg, PA 17055
(717) 796-2100