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HomeMy WebLinkAbout07-09-04 JOSEPH D. BRENNER, SR., JOSEPH D. : IN THE COURT OF COMMON PLEAS OF BRENNER, JR. and MARGARET B. : CUMBERLAND COUNTY, PENNSYLVANIA BUSHEY, : Petitioners : ORPHANS' COURT DIVISION : v. : No. 21-04-087 : MANUFACTURERS AND TRADERS : TRUST COMPANY, a New York : Corporation, DAVID C. GORITY, an : Individual, and CURT R. STAUFFER, an : Individual, : Respondents : NOTICE TO PLEAD TO: All Petitioners You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against you. Date: July 8, 2004 ~Xr~~ Mark D. Bradshaw, Esquire Supreme Court I.D. #61975 4750 Lindle Road P.O. Box 11670 Harrisburg, PA 17108-1670 Attorney for Respondents SL1 432163vl/11673.002 JOSEPH D. BRENNER, SR., JOSEPH D. : IN THE COURT OF COMMON PLEAS BRENNER, JR. and MARGARET B. : OF CUMBERLAND COUNTY, BUSHEY, : PENNSYLVANIA Petitioners : : ORPHANS' COURT DIVISION V. _' : No. 21-04-087 MANUFACTURERS AND TRADERS : TRUST COMPANY, a New York : Corporation, DAVID C. GORITY, an : Individual, and CURT R. STAUFFER, an : Individual, : Respondents : RESPONDENTS' VERIFIED ANSWER TO PETITIONERS' PETITION FOR CITATION 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted 5. Admitted 6. Admitted 7. Admitted 8. Admitted 9. Admitted. By way of further answer, due to the institutional co-trustee's concerns relating to the concentration of all trust assets in a AMP stock only, the trust instruments specifically include a release of liability on the part of the institutional co-trustee for retaining this concentration within the trust. 10. Admitted 11. Admitted 12. Admitted 1 SL1 456354vl/66255.037 13. Admitted 14. Admitted 15. Admitted 16. Admitted 17. Denied. The averments of paragraph 17 are denied except as specifically admitted herein. It is admitted only that Mr. Brenner, Sr.'s health and business acumen have decreased somewhat, gradually over time, consistent with the normal aging process. It is specifically denied that Mr. Brenner, Sr.'s health and business acumen have declined "significantly" since October 1997, just as it is denied that this "fact" is and was well known to M&T. To the contrary, those M&T employees with the closest relationship to Mr. Brenner, Sr., did not note any marked deterioration, or anything out of the ordinary. It is admitted that the Brenner family has a longstanding business relationship with David Gority, and tha~t he has been the M&T officer principally responsible for fulfilling M&T's fiduciary obligations with regard to the Trusts at issue herein. It is admitted that Gority knows Brenner's age, and knows that he suffers from hearing loss. Gority denies that he had any knowledge that Brenner, Sr.'s vision has been impaired due to cataracts. It is specifically denied that Gority has, on any occasion, commtmicated to Bushey that Gority believes that Brenner, Sr. is easily confused about financial details or requires information to be repeated multiple times (otlen over a period of days). It is admitted only that Mr. Gority may, at some time, have offered an observation that Mr. Brenner, Sr. "generally seems to be slowing down" or words to that effect. It is denied that Gority has ever observed or commented to Bushey (or others) that Brenner, Sr. has lost confidence in his ability to make business decisions. 2 SL1 456354vl/66255.037 18. Denied. The averments of paragraph 18 are denied except as specifically admitted herein. It is denied that Gority has "consistently" invited Brenner, Jr. and Bushey to attend meetings involving the discussion or decision of substantive of financial issues for the Children's Trusts since 1997. Given the denial that this practice has been consistently followed, it should be unnecessary to further deny that the supposed practice resulted from the decline in Brenner, Sr.'s health and abilities, however this is also denied. To the contrary, Brenner, Jr. and Bushey attended numerous meetings together with their father for the convenience of all involved, because these meetings dealt with the Bank's recommendations to diversify the trusts' holdings, and the trusts over which Brenner, Sr. was trustee, like the trusts over which Brenner, Jr. and Bushey are Trustees involved a similar concentration of trust assets in a single stock. It was therefore convenient to include all parties in a single meeting to review diversification recommendations, rather than convening separate meetings with a similar agenda. In point of fact, the meeting immediately preceding the meeting with Brenner, Sr. on June 12, 2002 (such meeting occurring in or about January of 2002) did not include Brenner, Jr. and Bushey, and no objection to same was ever lodged by any party. It is specifically denied that, at any time, Gority told Bushey that Gority believed Bushey and/or Brenner, Jr. should attend any meeting at which any decision would be made about the Children's Trusts. This discussion having been denied, it should be unnecessary to further deny that the discussion occurred "in light of Brenner, Sr.'s reduced capacity, "however this is also denied. It is further denied that either Bushey or Brenner, Jr. attended all subsequent meetings regarding the Children's Trusts. It is admitted that on one occasion, Brenner, Sr.'s accountant, Ray Keller, attended a meeting together with Brenner, Sr., Brenner, Jr. and Bushey, said meeting occurring in or about November, 2001. 3 SL1 456354vl/66255.037 19. Admitted. By way of further answer, Mr. Stauffer's role was that of the investment officer on the account, whereas Mr. Gority's role was that of the administrative officer on the account. 20. Admitted in part and denied in part as stated. Any implication that a 20% liquidation was all that the Bank viewed as necessary to achieve an appropriate level of diversification in the trusts is specifically denied. To the contrary, this passage from correspondence is taken out of context. What Mr. Gority was communicating was ~that such a liquidation would be appropriate, as a first step, in the Bank's view. 21. Admitted. 22. Denied as stated. The March 6, 2002 letter is in writing and speaks for itself. It is attached hereto and made a part hereof as Exhibit "A". Petitioners' incomplete characterization of this correspondence is denied and the Court is directed to the letter itself. 23. Admitted. By way of further answer, the Bank repeatedly advised Brenner, Sr., Brenner, Jr. and Bushey that diversification was prudent and recommended, and that the concentration of Tyco stock within the trusts presented significant risks. Mr. Brenner, Sr. was adamant, however, that Tyco stock not be sold, and instructed M&T not to sell same. A true and correct copy of such instruction is attached hereto and made a part hereof as Exhibit "B". 24. Admitted. 25. Denied as stated. The factual allegations of paragraph 25 are admitted, however the use of florid adjectives to describe these factual events is denied as both inaccurate and inappropriate. More specifically, it is denied that Stauffer called Bushey "in a panic". It is further denied that this phone call could fairly be characterized as "breathless". It is admitted that Mr. Stauffer specifically told both Bushey, Brenner, Jr. and Brenner, Sr. that the Bank 4 SL1 456354vl/66255.037 wished to have a meeting, and was inviting all three of the family members to discuss reevaluating the trusts' Tyco holdings. 26. Admitted in part and denied in part as stated. The characterization of Brenner, Sr.'s agreement to come to the Bank "for a brief informational meeting" is denied. To the contrary, Brenner, Sr. specifically informed Mr. Stauffer that he would attend a meeting at the Bank, would attend the meeting himself, alone, on behalf of the family, and that Brenner, Sr. expected that the meeting would be brief and would include a definitive recommendation from the Bank as to what to do with the Tyco shares held by the trusts. 27. Denied. The averments of paragraph 27 are denied except as specifically admitted herein. It is denied that Stauffer and Gority were already on a conference call with a senior M&T representative in Buffalo, New York when Brenner, Sr. arrived at M&T. To the contrary, as a courtesy to Brenner, Sr. and in light of his expressed desire that the meeting be brief, Mr. Stauffer had already arranged for John Klobusicky, whose office is in Wilkes-Barre, Pennsylvania, to be available by phone at the appointed hour. Mr. Stauffer and Mr. Klobusicky's call had already been connected when Mr. Brenner arrived at M&T. Mr. Gority saw Mr. Brenner enter the building and escorted Mr. Brenner back to Mr. Stauffer's office. It is denied (as set forth hereinabove), that Brenner, Sr. expected a "brief informational meeting". To the contrary, Brenner, Sr. had requested a definitive recommendation, and that is exactly what occurred at the meeting on June 12, 2002. The "actual purpose" for the meeting was entirely consistent with Mr. Stauffer's telephone calls of Friday, June 7, 2002 to the family. The meeting was for the purpose of communicating explicitly to the Brenner family, through Brenner, Sr., that the Bank had eliminated its position in Tyco, and that it advised the Brenner family !to do the same. The recommendation made by the Bank at the meeting was to liquidate one-third of the 5 SL1 456354vl/66255.037 Tyco stock in the Children's Trusts at then-prevailing market prices, and to utilize a "stop-loss" order to protect against the possibility that the stock price would plummet and the trusts become worthless. It is specifically denied that documents authorizing such transactions had already been prepared prior to Brenner, Sr.'s arrival at the Bank. To the contrary, Mr. Gority excused himself at the conclusion of the meeting and prepared such documents for Brenner; Sr.'s signature at that time. The specific authorizations, which Brenner, Sr. does not deny signing, are attached hereto and made a part hereof as Exhibit "C". 28. Denied. The averments of paragraph 28 are denied except as expressly admitted herein. It is denied that Gority and Stauffer were "intent" upon getting Brenner, Sr. to agree to their liquidation plan and sign the documents. To the contrary, Messrs. Stauffer and Klobusicky made recommendations on behalf of the bank to which Brenner readily agreed. And it is specifically denied that Brenner, Sr. did not want to sell any Tyco stock on June 12, 2002. It is admitted that Gority and Stauffer had been previously advised by Brenner, Sr. that he believed in Tyco's fundamental financial soundness, however, on June 12, 2002, Brenner, Sr., himself, expressed grave concern regarding the company, its management, and its future. It is specifically denied that Gority and Stauffer did not adequately explain the Bank's liquidation plan to Brenner, Sr. and it is specifically denied that anyone "took advantage of [Brenner, Sr.'s] reduced capacity to pressure him into signing the documents". To the contrary, Stauffer and Klobusicky carefully explained the liquidation plan, and also discussed reinvestment opportunities with regard to the proceeds of the sales with Brenner, Sr. Not only was no undue pressure applied, but Brenner, Sr. readily agreed to the liquidation plan and expressed no misgivings or hesitation on June 12, 2002, either before or after signing the authorizing documents. It is admitted that Brenner, Sr. agreed to sell one-third of the Tyco stock held in the 6 SLI 456354vl/66255.037 Children's Trusts at market price which approximated $10.50 at that time. It is specifically denied that there was any pressure from any Bank employee utilized with regard to Brenner, Sr. The allegations relating to Mr. Brenner's "understanding" of what he was agreeing to are denied as inaccurate and irrelevant. To the contrary, Exhibit "C" hereto are true and correct copies of what Brenner, Sr., through his execution thereof, agreed to. It is specifically denied that Brenner, Sr. did not understand or agree to the terms of the authorizations which he executed. To the contrary, the written authorizations were read aloud to Mr. Brenner, who specifically indicated his assent to the terms of the same, both verbally and by executing the same. Moreover, a thorough and detailed explanation of the manner in which a stop-loss transaction would be processed was furnished to Mr. Brenner by Mr. Stauffer. 29. Denied. The averments of paragraph 29 are denied other than as specifically admitted herein. It is admitted that neither Brenner, Jr. nor Bushey was present at the meeting on June 12, 2002. It is specifically denied that "M&T never notified either of them of the meeting, and they were both unaware it was taking place." To the contrary, as reflected in petitioners' own pleading (at paragraph 25), Curt Stauffer, on Friday June 7, 2002, informed bOth Brenner, Jr. and Bushey that the Bank intended to convene a meeting the following week to discuss Tyco and the Bank's recommendation to sell shares. Mr. Stauffer was directed by Mrs. Bushey to coordinate that meeting through Mr. Brenner, Sr.. Brenner, Sr., and not M&T, made the decision that neither Brenner, Jr. nor Bushey would not be included. By way of further answer, neither Bushey nor Brenner, Jr. took any action to confirm the date or time of the meeting. It is specifically denied that M&T "extracted Brenner, Sr.'s agreement". To the contrary, as set forth hereinabove, Brenner, Sr. readily agreed to the sale of the Tyco stock on June 12, 2002. It is further denied that Brenner, Sr. required the presence of anyone "to help him understand M&T's 7 SLI 456354vl/66255.037 proposal or the documents M&T told him to sign." To the contrary, Brenner, Sr. understood the proposal and directed M&T to implement the same. It is further denied that M&T actions "were in direct contravention of Gority's agreement with Bushey and Brenner, Jr." inasmuch as there was no such agreement. The remaining allegations in paragraph 29 constitute legal conclusions requiring no responsive pleading. 30. Denied as stated. Immediately upon Brenner, Sr.'s departure from M&T Stauffer executed the trades which Brenner, Sr. had authorized. 31. The averments of paragraph 31 are denied in their entirety. To the contrary, there were no "potential implications" to M&T by not including Brenner, Jr. and BUshey in any decision made with respect to the Children's Trusts. To the contrary, the co-Trustees with regard to the Children's Trusts are M&T and Brenner, Sr., period, as reflected in Petitioners' own pleading (Paragraph 12). Upon Brenner, Sr.'s departure from the Bank on June 12~ 2002, Gority and Stauffer were well aware that Brenner, Jr. and Bushey had not given their apprOval as co-Trustees of the Grandchildren's Trusts. Indeed, prior to leaving, Brenner, Sr. pUrported to instruct Gority and Stauffer to execute identical trades with respect to the Grandchildren's Trusts as he had authorized with regard to the Children's Trusts, however, Gority reminded Brenner, Sr. that he lacked the authority to direct trades in the Grandchildren's Trusts. Gority tl~erefore informed Brenner, Sr. that he would contact Brenner, Jr. and Bushey to seek their approval of such trades. Any implication that Gority and/or Stauffer acted improperly is specifically denied. To the contrary, had Bushey and Brenner, Jr. declined to agree, no Tyco stock would have been sold out of the Grandchildren's Trusts. 32. The averments of paragraph 32 are denied in their entirety. It is specifically denied that any employee of M&T "acted" with regard to the Grandchildren's Trusts prior to 8 SLI 456354vl/66255.037 securing proper authorization from Bushey and Brenner, Jr. It is admitted that at some time near noon on June 12, 2002 Gority called Bushey and summarized the results of M&T's meeting with her father, Brenner, Sr. It is specifically denied that Gority was seeking "consent from Bushey or Brenner, Jr. with regard to the Children's Trusts", inasmuch as the co-trustees with authority to make decisions regarding the Children's Trusts (M&T and Brenner, Sr.) had already made their decision. To the contrary, Gority was informing Bushey of her father's decisions, and of her father's recommendation that these actions be taken with regard to the Grandchildren's Trusts. M&T lacks information sufficient to form a belief as to Bushey's reaction to this information other than as specifically communicated by Bushey to Gority during that telephone call. It is further denied that M&T was "desperate", in any sense, or for any reason, to secure Bushey's approval. It is further specifically denied that Gority applied improper pressure, in any manner, with regard to Bushey. To the contrary, Gority simply described the decisions Brenner, Sr. had made and requested Bushey's authorizations to make similar trades in the Grandchildren's Trusts. Bushey quickly and readily agreed to this proposal. 33. Denied. The averments of paragraph 33 are denied except as specifically admitted herein. It is admitted that Gority telephoned Brenner, Jr. immediately after speaking with Bushey. It is admitted that Gority informed Brenner, Jr. of Brenner, Sr.'s decisions relating to the Children's Trusts and Bushey's decisions relating to the Grandchildren's Trusts. Following reasonable investigation, M&T lacks sufficient information to form a belief as to Brenner, Jr.'s reaction to this telephone call, other than as specifically communicated by Brenner, Jr. to Gority during that telephone call. It is specifically denied that Gority characterized the plan as "a done deal" and/or that Gority "pressured" Brenner, Jr. tO "go along with his father's and sister's purported wishes." To the contrary, Gority simply explained the 9 SLI 456354vl/66255.037 decisions made by Brenner, Sr. and Bushey. It is further denied that Brenner, Jr. gave his agreement as a result of the application of any improper pressure,.just as it is denied that Brenner, Jr.'s agreement was to sell one-third of the stock at $10.50. To the contrary, Brenner, Jr. indicated dissatisfaction with the price at which Tyco was then trading, and indicated some discomfort with regard to the use of a stop-loss order, however, after some reflection, Brenner, Jr. informed Mr. Gority that he would "go along" with his father's and his sister's decisions. 34. The averments of paragraph 34 are denied in their entirety as follows. Following reasonable investigation, M&T Bank is without information sufficient to form a belief as to the specifics of conversations by and between Bushey and Brenner, Jr. It is specifically denied that Gority ever sought Bushey's approval with regard to transactions in th{: Children's Trusts, inasmuch as Bushey had no decisional role with regard to those trusts. To the contrary, Gority sought, and readily obtained, Bushey's authorization to execute trades in the Grandchildren's Trusts similar to those authorized by her father with regard to the Children's Trusts. It is specifically denied that M&T acted in a "rush" to get approval from BUshey, as it is specifically denied that Gority did not adequately inform Bushey as to the agreement he sought. It is specifically denied that Bushey "never agreed or intended to agree" to liquidate Tyco shares in the Grandchildren's Trusts. To the contrary, Bushey readily agreed to the sale of the Tyco stock from the Grandchildren's Trusts. Indeed, on June 10, 11 and 12 Bushey was actively and aggressively selling Tyco shares owned by herself and her children, personally (i.e. outside the Trusts). Bushey was convinced that selling Tyco shares made sense in light of market events. 35. Admitted. 36. Admitted. 10 SLI 456354vl/66255.037 37. Admitted in part and denied in part as stated. The letter of June 12, 2002 asked Brenner, Jr. and Bushey to sign a written confirmation of their verbal authorization to sell Tyco shares held in the Grandchildren's Trusts. Gority had previously allowed the Brenner family to direct trades on a verbal basis with follow-up written authorizations provided later. However, on this particular occasion, Brenner, Jr. and Bushey betrayed Gority's trust by refusing to execute the written confirmation. 38. Denied. The averments of Paragraph 38 are specifically denied. To the contrary, Stauffer voluntarily resigned in order to pursue another opportunity at a different financial institution. Stauffer's resignation had absolutely nothing to do with the Brenner Trusts. 39. Admitted in part and denied in part as stated. The first two senteaces of paragraph 39 are admitted. The remainder of paragraph 39 is denied as stated. It is admitted only that the trust assets have not yet been released to Orrstown Bank and that M&T continues to hold these trust assets. The remaining allegations of paragraph 39 constitute legal Conclusions requiring no responsive pleading. 40. Respondents incorporate by reference the allegations set forth in paragraphs 1 through 39. 41. Denied. The averments of paragraph 41 constitute legal conclusions requiring no responsive pleading. 42. Denied. The averments of paragraph 42 constitute legal conclusions requiring no responsive pleading. 43. Denied. The averments of paragraph 43 constitute legal conclusions requiring no responsive pleading. To the extent the same may be deemed averments of fact, they are denied as follows. On or before June 12, 2002 no representative of M&T Bank had lany concern 11 SL1 456354vl/66255.037 nor reason for concern that Brenner, Sr.'s health or capacity rendered him incapable of decisive action, nor had any member of the Brenner family suggested same to any M&T employee. By way of further answer, there was no "agreement" reached between Gority and Bushey as alleged. By way of further answer, M&T fully and faithfully discharged all of its fiduciary ~bligations with regard to the trusts through its actions. 44. Denied. The averments of paragraph 44 constitute legal conclusions requiring no responsive pleading. To the extent the same may be deemed averments of fact, they are denied as follows. On or before June 12, 2002 no representative of M&T Bank had any concern nor reason for concern that Brenner, Sr.'s health or capacity rendered him incapable of decisive action, not had any member of the Brenner family suggested same to any M&T emPloyee. By way of further answer, there was no "agreement" reached between Gority and Bushey as alleged. By way of further answer, M&T fully and faithfully discharged all of its fiduciary Obligations with regard to the trust through its actions. 45. Denied. The averments of paragraph 45 constitute legal conclusions requiring no responsive pleading. To the extent the same may be deemed averments of fact, they are denied as follows. M&T had no obligation to include anyone other than its co-TruStee, Brenner, Sr., in any discussion relating to the Children's Trusts. By way of further answer, it was Brenner, Sr., and not the Bank, that decided that Bushey and Brenner, Jr. would noti be included in this meeting. The allegations as to what Brenner, Sr. would supposedly have done under different circumstances are denied as pure speculation and as irrelevant. Brenner, Sr. agreed to the liquidation plan in writing. See Exhibit "C". By way of further answer, M&T fUlly and faithfully discharged all of its fiduciary obligations with regard to the trust through its actions. 12 SLI 456354vl/66255.037 46. Denied. The averments of paragraph 46 constitute legal conclusions requiring no responsive pleading. To the extent the same may be deemed averments of fact, they are denied as follows. M&T made no unilateral "decision" to sell the Tyco shares, nor did it panic. To the contrary, it made a well-reasoned recommendation to its co-Trustees based iupon analysis of market conditions. It's co-Trustees readily agreed with the recommendation. By way of further answer, M&T fully and faithfully discharged all of its fiduciary obligations! with regard to the trust through its actions. 47. Denied. The Children's Trusts have suffered no damage resulting from M&T's actions. 48. Denied. The averments of paragraph 48 require no responsive pleading in light of the Court's Order of June 18, 2004. 49. Respondents incorporate by reference the allegations set forth in paragraphs 1 through 48. 50. Denied. The averments of paragraph 50 constitute legal conclusions requiting no responsive pleading. 51. Denied. The averments of paragraph 51 constitute legal conclusions requiting no responsive pleading. 52. Denied. The averments of paragraph 52 constitute legal conclusions requiting no responsive pleading. To the extent the same may be deemed averments of fact, the same are denied as follows. At no time did M&T mislead or coerce its co-trustees in any fashion. It is specifically denied that M&T breached its fiduciary duties to the Grandchildren's TrUsts in any manner. To the contrary, to the extent that Brenner, Jr. and Bushey authorized trading in the Grandchildren's Trusts without being fully informed and/or without agreeing to the 13 SL1 456354vl/66255.037 recommendations, Brenner, Jr. and Bushey breached their own fiduciary duties to the Grandchildren's Trusts, as set forth in greater detail herein below. 53. Denied. The averments of paragraph 53 constitute legal conclusions requiring no responsive pleading. To the extent the same may be deemed averments of fact, the same are denied as follows. M&T's decision to recommend a liquidation plan of Tyco stock was the result of a calm, measured and analytical process relating to Tyco's share price in light of market conditions. The decision was made by and between the co-trustees collectively, and not unilaterally by M&T. The decision to make the recommendation cannot, in any sense, be characterized as panicked in nature. 54. Denied. The children's trusts have suffered no damage resulting from M&T's actions. 55. Denied. The averments of paragraph 48 require no responsive pleading in light of the Court's Order of June 18, 2004. 56. Respondents incorporate by reference the responsive allegations set forth in paragraphs 1 through 55. 57. Denied. The averments of paragraph 57 constitute legal conclusions requiring no responsive pleading. To the extent the same may be deemed averments of fact, it is denied that the Children's Trusts have been damaged in any manner by any action of M&T Bank. 58. Respondents incorporate by reference the responsive averments of paragraphs 1 through 57. 59. Denied. The averments of paragraph 59 constitute legal conclusions requiring no responsive pleading. To the extent the same may be deemed averments of fact, it is denied that the Children's Trusts have been damaged in any manner by any action of M&T! Bank. 14 SLI 456354vl/66255.037 60. Respondents incorporate by reference the responsive averments of paragraphs 1 through 59. 61. Denied. The averments of paragraph 61 constitute legal conclusions requiring no responsive pleading. 62. Denied. It is denied that the Children's Trusts have been damaged in any regard as a result of Gority and Stauffer's actions. 63. Respondents incorporate by reference the responsive allegations set forth in paragraphs 1 through 62. 64. Denied. The averments of paragraph 64 constitute legal conclusions requiring no responsive pleading. 65. Denied. It is denied that the Children's Trusts have been damaged in any regard as a result of Gority and Stauffer's actions. WHEREFORE, the Respondents' M&T Bank, David C. Gority and Curt R. Stauffer respectfully request .judgment in their favor and against petitioners; request that the request for surcharge be denied in every respect, and further demand that all of Respondents' attorneys' fees and costs incurred in connection with these proceedings be taxed against the trust corpus themselves. NEW MATTER 66. Petitioners' claims are entirely barred by their failure to mitigate (or eliminate entirely) any arguable damages (such damages being expressly denied). 67. Petitioners claim that certain shares of Tyco International should not have been sold on June 12, 2002 at or about $9.00 per share. SLI 456354vl/66255.037 1 5 68. Approximately six weeks later, on July 25, 2002, Tyco International shares traded on the New York stock exchange for as little as $6.98 per share. 69. Tyco International shares closed at $8.25 on July 25, 2002. 70. Petitioners could have completely reestablished the Trusts' positions in Tyco International at a savings on July 25, 2002 through the use of the proceeds resulting from the sales of June 12, 2002. 71. Petitioners neither purchased nor made any request of Respondents to purchase Tyco International shares on June 25, 2002. 72. Alternatively, Petitioners could have purchased an enhanced position in Tyco International on July 25, 2002 with the entirety of the sale proceeds from June 12, 2002. 73. However, once again, Petitioners did not purchase or request that Respondents purchase on their behalf, any shares of Tyco International on June 25, 2002. 74. Had petitioners repurchased the Trusts' position in Tyco International on July 25, 2002, the June 12, 2002 stock sales would actually have benefited Petitioners. 75. Throughout the summer and early autumn of 2002, Tyco International shares were selling for substantially less than they are presently trading for. 76. For an unreasonably extended period of time, Petitioners failed to mitigate their alleged damages by repurchasing the position at a price more closely approximating the sale price. 77. Petitioners, through their inaction and failure or refusal to reacquire Tyco International shares have failed to mitigate any arguable damages. 78. The Petition for a Citation fails to state a claim upon any cognizable theory. SL1 456354vi/66255.037 16 79. The Petition for a Citation fails to state a claim versus the individual defendants. 80. David Gority and Curt Stauffer were, at all times, acting within the course and scope of their employment while interacting with Petitioners regarding the Brenner!Family Trusts. 81. Pennsylvania law does not recognize a cause of action for "aiding ~and abetting a breach of fiduciary duty" by the employee of an institutional co-trustee. 82. Joseph, Brenner, Sr. directed the sale of the shares of Tyco Intemafional and the use of a stop loss order, in writing, on June 12, 2002. 83. True and correct copies of these authorizations are attached hereto and made a part hereof as Exhibit "C". 84. Joseph D. Brenner, Jr. and Margaret Bushey affirmatively agreed with Respondents' recommendation to sell shares of Tyco International and to utilize a stop-loss order and directed that such sales be accomplished with regard to the Grandchildren's TrUst. 85. Under the circumstances, all of Petitioners' claims are barred by the doctrines of estoppel and/or consent. 86. Every aspect of Respondent's recommendation to sell the shares of Tyco International held by the Trusts was reasonable when made. 87. M&T Bank's recommendation to sell shares of Tyco International held by the Trusts was consistent with information available to the investing community regarding the condition of Tyco International at the time the recommendation was made. 17 SLI 456354vl/66255.037 88. M&T's recommendation to sell shares of Tyco International held by the Trust was consistent with actions taken by M&T Bank with regard to all other accounts held at the bank. 89. Attached hereto and made a part hereof as Exhibit "D" is a true and correct copy of an email sent to all investment advisors at M&T Bank on June 7, 2004, instructing those advisors to liquidate all positions in Tyco International stock. 90. M&T Bank's recommendation that the Trusts sell shares of Tyco International was consistent with the' Bank's repeated cautionary advice to Petitioners regarding the dangers of holding a concentration of assets in a single security. 91. M&T Bank's concerns regarding the viability of Tyco International as a going concern on June 12, 2002 were well taken in light of market events then prevailing~ 92. These market events included the arrest of CEO L. Dennis KosloWski; Tyco's severe liquidity problems; and the potential for regulatory action precluding the proposed "spin off" ofTyco's CIT division. 93. At the time M&T's recommendation that the trusts sell shares of Tyco International was made, the stock market had recently witnessed the total loss of shareholder value in several large, well regarded companies, including Enron, WorldCom, Globial Crossing, and others. 94. M&T Bank was correctly concerned that Tyco International might be another entity in which shares of stock became substantially worthless in a sudden manner. 95. M&T Bank carefully considered all information available to it in making its recommendation to the co-trustees of the Trusts. 18 SL1 456354vl/66255.037 96. The Bank's recommendation that a stop-loss order be used with regard to the balance of the Tyco International shares held by the Trust was reasonable under the circumstances. 97. M&T Bank carefully selected the stop-loss "trigger" price as a price outside the normal trading range, in order to protect against the possibility of precipitous plunge in Tyco International's share price. 98. M&T Bank's recommendations were not the result of panic, but, rather, were the result of careful analysis and consideration of all market conditions. 99. For M&T Bank to have made any recommendation other than to sell shares of Tyco International held by the Trusts on June 12, 2002 would have constituted a breach of M&T's fiduciary duty to its co-trustees. 100. Petitioners agreed with M&T's recommendation on June 12, 2002. 101. This action is nothing more than a reflection of hindsight seller's remorse. NEW MATTER PURSUANT TO Pa. R.C.P. 2252{B){2) 102. Petitioner Joseph D. Brenner, Sr. is a college graduate and the former chief executive officer of Amp Incorporated, a large, publicly traded company. 103. Petitioners Joseph D. Brenner, Jr. and Margaret B. Bushey are college graduates. 104. Brenner, Sr., Brenner, Jr. and Bushey all serve as co-trustees with regard to certain Brenner family trusts. 105. It is in their capacities as co-trustees that Brenner, Sr., Brenner, Jr. land Bushey have instituted this proceeding (see Petition for Citation, paragraphs 1-3). 19 SL1 456354vl/66255.037 106. Brenner, Sr., Brenner, Jr. and Bushey are hereby named additional defendants pursuant to the provisions of Pa. R.C.P. 2252(b)(2). 107. Assuming the allegations in the Brenner's Petition for a Citation are true (which the Respondents do not concede), Petitioners, themselves, have breached their own fiduciary duties to the Trusts at issue. 108. On the basis of Petitioners' own allegations, M&T Bank hereby alleges, in the alternative to its affirmative defenses, that Brenner, Sr., Brenner, Jr. and Bushey, jOintly and severally, are either alone liable to the Trusts, jointly liable to the Trusts and/or liable over to M&T for any and all losses which may have been suffered by said Trusts as a result of the sale of Tyco International stock (any such damages being expressly denied.) 109. Beginning in November, 2000, M&T Bank made repeated recommendations that Brenner, Sr., Brenner, Jr. and Bushey agree to diversify the Trusts holdings such that the Trusts were not exclusively invested in Tyco International shares. 110. On numerous occasions prior to the spring and summer of 2002, M&T Bank noted its concern that the Trusts assets were invested entirely in one security, and urged diversification. 111. M&T Bank's recommendations regarding diversification to its co.trustees were made both verbally and in writing, and were repeated in formal meetings as well as! informally between the co-trustees. 112. Prior to the events of June 12, 2002 Brenner, Sr. flatly refused to diversify the Trusts, and insisted that shares of Tyco International not be sold from the Trusts. See, e.g. Exhibit "B". 20 SL1 456354vl/66255.037 113. Prior to the events of June 2002, Brenner, Sr. flatly refused to even give serious consideration to the diversification recommendations. 114. Holding all assets of any trust in one security is manifestly unreasonable, and necessarily exposes the trust to potential losses of catastrophic proportion. 115. Brenner, Sr.'s refusal to diversify or even seriously consider diversification constituted a breach of his fiduciary duty to the Trusts. 116. Brenner, Sr.'s willful disregard of the cautionary communications from his institutional co-trustee, M&T Bank, regarding the concentration in Tyco stock and lack of diversification, constituted a breach of his fiduciary duty to the Trusts. 117. Brenner, Sr., on June 12, 2002 affirmatively instructed M&T Bank that one-third of the shares of Tyco International stock held in the Children's Trusts be Sold and instructed that a stop-loss order at $9.00 per share be implemented with regard to the balance of the shares in the Children's Trust. See Exhibit "C". 118. By instituting and maintaining this action, Brenner, Sr. blames M&T Bank for carrying out his own instructions. 119. Brenner, Jr. and Bushey personally attended meetings and presentations by M&T Bank relating to M&T's opinion that the Trust's assets should be diversified. 120. Brenner, Jr. and Bushey received copies of correspondence from M&T Bank relating to M&T Bank's recommendation that the Trusts, including the Grandchildren's Trusts, be diversified. 121. Through the meetings, presentations and correspondence, Brenneri Jr. and Bushey heard first-hand the concerns regarding the Trusts concentration and Tyco International stock and lack of diversification voiced by institutional co-trustee, M&T Bank. 21 SLI 456354vl/66255.037 122. Even having been made aware of M&T Bank's concerns regarding concentration and lack of diversification, neither Brenner, Jr. nor Bushey took any meaningful action to sufficiently diversify the Grandchildren's Trusts. 123. Indeed, neither Brenner, Jr. nor Bushey even attempted to have serious discussions with each other, or with their father, regarding the advisability of diverSification within the Trust's assets. 124. Brenner, Jr.'s failure to diversify the Grandchildren's Trust constituted a breach of fiduciary duty by him to that Trust. 125. Bushey's failure to diversify the Grandchildren's Trusts constituted a breach of fiduciary duty with regard to that Trust. 126. Both Brenner, Jr. and Bushey affirmatively agreed to M&T Bank's recommended course of conduct (selling shares of Tyco International) on June 12, 2002. 127. By instituting and maintaining this action, Brenner, Jr. and Bushey blame M&T Bank for carrying out their instructions with regard to the trusts. 128. Should this attempted surcharge action fail, M&T Bank will be entitled to recover all costs and attorneys' fees incurred in defending itself from the Trusts themselves. 129. Brenner, Sr.'s actions in bringing and maintaining this action are contrary to the best interests of the Children's Trust, and constitute a breach of his fiduciary duties to the Trust. 130. Brenner, Jr. and Bushey's actions in bringing and maintaining this action are contrary to the best interests of the Grandchildren's Trusts, and constitute a breach of their 22 SLI 456354vl/66255.037 fiduciary duties to the Trusts. Respectfully submitted, Dated: July (J, 2004 STEVENS&LEE Mark D. Bradshaw Attorney I.D. No. 61975 Christopher M. Cicconi Attorney I.D. No. 19331 4750 Lindle Road P.O. Box 11670 Harrisburg, PA 17108-1670 (717) 561-5242 Attorneys for Manufacturers and Traders Trust Company, a New York Corporation, Daviid C. Gority, an Individual, and Curt R. Stauffer, an Individual, Defendants 23 SL1 456354vl/66255.037 JUL-08-2004 13:49 PNC BANK ?17 ?30 2254 P.02/02 JOSEPH D. BRENNER, SR., JOSEPH D. : IN THE COURT OF COMMON PLEAS BRENNER, JR. ud MARGARET B. : OF CUMBERLAND cOUNTY, BUSHEY, : PENNSYLVANIA Plaintiffs : : ORPHANS' COURT DIVISION V. : No. 21-04-087 MANUFACTURERS AND TRADERS : TRUST COMi~ANY, a New York : Corporation, DAVID C. GORITY, an : Individual, and CURT 1L STAUFFER, zn : Individual, : Defendants : VERIFICATION I, Curt R. Stauffer, verify that ! am a Defendant in the within ac~.on; ~at the attached Verified Answer to Petitioners' Petition is based upon facts of'which I have personal knowledge or information furnished to me by counsel; that the language of the flocurnent is that of counsel and not my own; and that the facts set forth in the foregoing docum~t are true and oorreet to the best of my knowledge, information and belief. I understand that the statements herein are made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to un~wom falsification to authorities. Date: July ~, 2004 SL! 4~635a'4/66255.037 TOTAL P. 02 JOSEPH D. BRENNER, SRo, JOSEPH D. : IN THE COURT OF CO~ON B~~ ~ and ~G~T B, : OF C~~ CO~TY, BUS~Y, : PE~S~V~ P~in~ ; : O~HANS' CO~T D~SION V. : No. 2~-0~087 ~FA~U~RS ~ T~ERS TRUST CO.ANY, a New York : Corpora~on, DA~ C. ~y, an : ~d~dual, and CURT ~ STAUFFER, ~n : Ind~iduai~ Defendants VERIlY/CATION I, David C. Oority, verify that I am an individual Defendant in the withia action and an agent duly authorized to sign on behalf of Manufacturers and Traders Trust Company; that the attached Verified Answer to Petitioners' Petition is based upon facts of which I have personal knowledge or information furnished to me by counsel; that the language of the document is that of ceunsel and not my own; and that the facts set forth in the foregoing document are true and correct to the best of my knowledge, information and bel/ef. I understand that the statements herein are made subject to the penalties of 18 Pa_ C.S.A. § 4904 relating to unswom fa/si~cafion to author/t/es. Date: July___~, 2004 ~t_lG--16--02 06: 1:~ PM RDB ASSOCIATES 717 24~$47 P.02 DEPOSITION~ EXHIBIT Mr. Joseph Brenner I ~ Port Charlotte. FL As I km~w you m'e ~ell ~w~r~, Tyco International L~. sPck h~s In.~t n ~W~ificant ~mount ot'wlu~ ~in~ beg~nnin~ ot'fl~o your. The re~so~ ~ehind thc si~nificm~t ~ownw~rd price movemen~ ~n II, is stock i~re mulfi-f~c~t~d. The s~ck initially I~11 ~n early J~nu~ry related m m~ announcement by man~emenl lhnt comp~my would I~11 sho~ el'analysts' cnn~ings expcc~ufion~ tbr thc upcomin~ qt~lcr, however tbr oil rtl'FY2002. Al IbC Same tJl.ne ils this aflnouncemenl, more inlbrmndon w~s comillg to light about misleading ilcCOUlltillg pntcdces or the now bankrupl lire'on Coq~orntion. This ~(mtluencc of negative earnings guidance, and the growing skepticism among [Jl¢ invcstm¢nt co~llmtmity in regard to comp=lnies with complex accounting prae[ie¢~, pushed the stock below $50 per share. t)n Jmlm,7 22, 2002, Dennis Kozlowski. Chairman and CEO or Tyco International Ltd, announced a plan m separate Tyco inlo Dur independem, publicly traded companies: Security and Eleclronics; Healthcare; Fire Protection and Flow Control: and Financial Services. Mr. Kozlowski stated tN~t this plan was initialed in order lo unlock the unrealized valu~ of tho compnny's separate divisions in order lo enhance shareholder value. In IbC firsl coupD days following this announcemenl Ih~ stock was volaHle, but remained in'the $45 dollar range. Wall Sleet analysts were quick lo provide new largel pric~s for ~h~ stock based upona "sum of the paris" valuaHon. These valuations ranged between $65 per share nnd $90 per share. Over lhe ngxl severul days R)llowing the break-up announcement, minors begnn to surfitce regarding accounting irregularities and analogies to thc riffled Eaton Corpornfion. First lo hit the h~adlines was u disclosure [l~al $20 m/Ilion dollars was paid to a Tyco direclor lbr his eflbrts lo enable 'l'yco to pm'chase Thc ("iT ~h'oUp liISt sprin~. The second damaging disclosure to suffice was the fact tlmt 'l'~co m~dC $8 billion worth ofunnnnouneed acquisitions over the last 12 mood, s. These headlines, combined with tmcertah~ly of the break-up plan caused the stock Io decline [o $35 by the end ol'Janunw. Between Ihe end of Jantla~7 and today, fi.gher finnncial details emerged surrounding qucslionable sleek transactions by Kozltnvskj and other senior executives at the company surli~c~d. These additional disclosures and a drn~vi~g draw{ of bank lines of'credit to pay-offcommercial paper debt created additional stock price volatility. What started out as a routine earnings warning and a value enhancing break.up plan, has spiraled iiEo a ~iiluill{OI1 (hat II~s thc stock trading between $21 and $35. Thc compm~y's bonds [radJng are now h'~di~lg ill fl larg~ discount due 1o raring downgrades and uncerlninl~, 'lhe company hns recently tnk~n several positive steps I~ r~gain investor's conlklgnge dmt has be~n so badly shaken over ~l~u Insl month nnd a hnl/~ Man~gomenl has agreed to hold weekly conl~reace calls to answer any questions, they agreed to provi~ more transparency r~garding aequisilions and lh~y reiterated their commJlme~l to consider any divestiture options thai will maximize shareholder value, such as Selling assets, business spin-offs or IPO's. However, mnnagemenl appears to have st~pped back l?om their concrete break-up plan announced at lhe end of JanuaO' in lighl oflhe turmoil surrounding Ihe company nnd it's stock. 'AUG--16--02 06:14 PM R~ ASSOCIATES ?17 24~3~47 P.05 Al Ihb point M&T [nYestmcnt GroLIp's opinion on Tyco International l.td, sh~res is as lbllows: I. Tyco docs not llicc a near-lam]/inancinl liquidity problem. Thc cumpany currcml), has $3.16 hJllion in cash. 'l'h~ company prqjcc~s Ihal cash will be al $4 billion at lite end of SepTember 2002. The company has dcbl co I~ing clue tl~is year, however u conlpany SUCh 'l'y¢o tlmt ha~ substantial l?ee cash tluw usually has no problem rulinanc~ng this t~pe of dcbl. I:u~hermore, wid~ managentvnl committed In selling the company s plasti~ division ~m'17 fld.~ spring and the planned divestiture of ClT Group, Ihese lransactions will only incr~asg liquidil~. _. The cnnl~an~ s deb~ rahng has been downgraded due to uncertainly surruunding ihe compm~y s phmned ~ivestitur~ and what impact lhosu divestitures will have on ~bnd holders. Thb downgrade has tbrced 'l'~co lo pa~ol'rsomu shod-term bonds wilh bunk debl, however the complmT's bonds arc still investment grade ([]BB or betturL cumpalty's electronics division and higher borrowing costa related to thc credit ddwngrude. '1 his Ilzts caused analysts lo lower cm~ings prqicctions ~or FY2002 to $3.20 p~'r sl~are $3.70 per share. What ~hin means I~)r thc stock price ia II]al near-term upside ~}lential far the stock is now lower than il was a monlh ago'based solely un valuation. At $3.~O per share and a 15 PE (the company's hislorical average PE) the shares would have b~cn valued at $55. Now will~ Consensus earnings pr~jeded nt $326 per ahnr~, thc ~ame PE or 15 would generate a share price et'just $40. 4. We believe that much o~the panic su~ounding the shares of'Tyco ia nat warranted and thai in the curt'cat posT-Enron environn]enl, that 'l'yco shares, could atld should, lrnde aJ a multiple et'around 12 or a 20% discount to hi~turical norms. '['hi~ discnunlcd valdalion would warrant a near-term valuation o~around S39 per share. In 11]¢ evcnl that the c(m]pnny t~llows through on ils plan to subslantially divcsL we believe that lhe break-up v;~lttalJOll in this envirunmenl is al'otnld $60 per share. 5. Using u market relative valuation measure, which has proven relevant in mare normalized market conditions. ]'yco's stock has traded at ~ PE d~at is approximately 80% ut'thc PR of the ~&P 500. Applying Ihb 1o today'n market PE u~20, generates a target PE of approximately 16 Ibr thc company. This large[ PE would suggesl that in a tess "E~ron ti'cnzied" market, assuming no l~t~hm' dmnn&ing disclosures by Tyco. that thc stock'k kroger-feint valuation as a conglomerate is around $52 per share, l.ooking out into j2003, wi~h thc current consensus earnings estimalc Ibr FY2003 at $3.97, an upside to around $63 per share could be possible 12 lo 18 months f?om now. It is wo~h noting that this (yp~ kmger-~rm valualion carries with it stlbslnntial cvcnt and disappointment risk. Wc believe tl3al it is prt~dcnl lbr accounts that holtl a concentrntad position in 'l'yco shares, that not unlike any nthcr cunccnu'nrcd position, u liquidation plan ~houkt bc in place and carried oul in a disciplined and ~imcly manner. It Ibllows thai mm'ket prices uP n concentrated stock need not dictate thc progrdss of thc liquidtuiou plnn. si~cc in most cases, the sale proaeeds will be reinvested in off, er investmenls ill,at b?ltcr x~rv~, ~hc needs of the account f~om a risk and reward measure. Much of the infi}m~atinn pr~vid~"jh riffs Icuer is stock specific, not account specific. In uther words, our research indicates that based on the i,tbrmatitm available today, Tyco stock appears Io represent a good invcsm]ent oppo~unity as a pan of a diversified portfolio. However. as the last month has illustrated, any stock in a significant concentralion cnn expose nn account In substantial risk oFcapJtal loss and unpredictable volatility. A'~.~i,,,tant Vice President Purtl~lio Man~4gcr Margnrel []. J~u~lluy Joseph D. Brenner. Jr. David C. Gurity doseph D. Brenner 1051 Trindle Road Carlisle, Pennsylvania 17013 August 20, 2000 Keystone Financial Bank, N.A. Trust and Asset Management Services One West High Street Carlisle, Pennsylvania 17013 Re: TUW Jane W. Brenner "C" 321057606 Gentlemen: As Co-Trustee of the above referenced trust I authorize you to continue to hold the 41,600 shares of Tyco International LTD. I realize that holding these shares represents maintaining 100% of the account in one security. I reco~ize that diversification reduces the risk assoCiated with investing in equities, but direct you to continue to hold the shares of Tyco International. As Co-Trustee I acknowledge that you have discussed with me the risk involved with not diversifying the portfolio. This authorization shall remain in effect until I authorize you in writing to sell any shares. Thank you. ,, pl~ kg. t nner, Sr. Co-Trustee DEPOSITION EXHIBIT EXHIBIT " m, osmo. I~ -, EXHIBIT June 12, 2002 Manufacturers and Traders Trust Company 1415 Ritner Highway Carlisle, PA 17013 RE: · Co-TUW Jane W. Brenner 32-1056-60-8 Co-TUW Jane W. Brenner 32-1057-60-6 Gentlemen: As Co-Trustee I authorize you to liquidate 4,533 shares of Tyco International in the Jane W. Brenner "B" Trust and 13,866 shares in the Jane W. Brenner "C" Trust. I also authorize you to place a stop loss order at $9.00 per shares on all additional shares in both trust accounts. Thank you. EXHIBIT June 12, 2002 Manufacturers and Traders Trust Company 1415 Ritner Highway Carlisle, PA 17013 RE: Co-TUA Nancy B. Blakely 41-709060-2 Gentlemen: As Co-Trustee and Attorney in Fact for Nancy BrennerBlakely, I authorize you to liquidate 24,274 shares Of Tyco International. I also authorize you to place a stop loss orderat $9.00 per share onall of the remaining shares in the trust account. Thank you. '~. Joseph ~. Brenner, Sr. ,,' MEMORANDUM To: M&T Asset Management Group From: T.Pierce, &Thorne, K. Hanrahan ~ Date: June 7, 2002 Subject: Changes to the Large-Cap Core (Icblend) Model SELL Tyco International (TYC) $10.80 Sell from 0.70% to L00% We are selling Tyco out of all of our models. The news flow and negative media coverage is overshadowing the fundamentals of the businesses. Our fears that SEC might block the CIT IPO are proving to be true and Tyco bears more risk now than ever. We are taking a tax loss on Tyco. , Industrials S&P 500 Index =0.29% Momentum Model Score %tile=20 Value Model 1 Mo. HPR Score %tileL-48 Value Model 3 Mo. I-IPR Score %tile=60 - i EXHIBI~ ' JOSEPH D. BRENNER, SR., JOSEPH D. : IN THE COURT OF COMMON PLEAS BRENNER, JR. and MARGARET B. : OF CUMBERLAND COUNTY, BUSHE¥, : PENNSYLVANIA Plaintiffs : : ORPHANS' COURT DIVISION V. .' : No. 21-04-087 MANUFACTURERS AND TRADERS : TRUST COMPANY, a New York : Corporation, DAVID C. GORITY, an : Individual, and CURT R. STAUFFER, an : Individual, : Defendants : CERTIFICATE OF SERVICE I, MARK D. BRADSHAW, ESQUIRE, certify that on this date, I served a certified tree and correct copy of the foregoing Respondents' Verified Answer to Petitioners' Petition for Citation upon the following counsel of record, by depositing the same in the United States mail, postage prepaid, addressed as follows: Keith O. Brenneman, Esquire Snelbaker, Brenneman & Spare, P.C. 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055-6249 William F. Martson, Esquire Tonkon Torp, LLP 1600 Pioneer Tower 888 S.W. Fifth Avenue Portland, OR 97204-2099 Date: July_~__~, 2004 SL1 456354vl/66255.037