Loading...
HomeMy WebLinkAbout05-04-09Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070-1931 (717)774-1445 Supreme Court I.D. 32317 IN RE: IN THE COURT OF COMMON PLEAS LYNN S. DUM, :CUMBERLAND COUNTY, PENNSYLVANIA DECEASED :ORPHAN'S COURT DIVISION No. 21-07-0065 ~~ _ ~ -;~ - ~ c-n ,-~ -;_, ~- , --~ -- ESTATE OF JOANN F. DUM'S ANSWER TO ~-=~ r`.. -... -- PETITION TO DISINTER AND RELOCATE REMAINS '~ ~~ -~, _ ~,~ - AND NOW, comes Creedon J. Fertenbaugh, Executor for the Estate'of JoAm~'. `- 3 Dum, who files this Answer to Petition to Disinter and Relocate Remains and avers as follows: 1) Admitted. Byway of further answer, it is asserted that Alma S. Dum has only been made Executrix of the Estate of Lynn S. Dum on February 25, 2009. When Lynn S. Dum died and after reasonable search and inquiry, there was no Will located for the Decedent. This resulted in his wife, JoAnn F. Dum, being appointed Administrator of her husband's estate pursuant to 20 Pa. C.S.A. §3155(b) on January 18, 2007. On or about January 26, 2007, prior counsel for Petitioner, William Bunt, Esquire indicated that a purported Will dated January 17, 1985 for the Decedent had been located in the possession of the Petitioner. No action was taken by the Petitioner to seek appointment as Executrix of the Decedent's estate until filing of a Petition for Grant of Letters on February 23, 2009. This resulted in the Order dated February 24, 2009 substituting the Petitioner as Executrix of the Estate of the Decedent without the requisite filing of any Petition to Revoke Appointment of the Administrator, any Rule or other formal proceedings or notice to Respondent. 2) Admitted. 3) Admitted. It is also specifically averred that the Decedent was the beloved son-in- law of the Respondent and a close, loving and respected member of Wife's family for in excess of 25 years. 4) Admitted in part. Denied in part. It is admitted that Decedent died on December 21, 2006, survived by Wife and Petitioner/Mother. It is further averred that he was survived by his father and a sister. It is admitted that Wife originally declared there was no Last Will and Testament because she had no knowledge of the existence of any such Will. Petitioner allegedly had at Will and made same fact known within weeks after the Decedent's death but took no steps for probating of same. S) Admitted in part. Denied in part. It is admitted that Wife purchased adjoining cemetery plots. Said plots were purchased on December 23, 2006. It is denied that they were purchased at the New Bloomfield Cemetery Association (109 S. Carlisle Street, New Bloomfield, PA). It is averred that the Decedent plots were 2 located in the "Bloomfield Cemetery". It is further averred that the choice of cemetery was at the specific request of the Decedent to his Wife. It is denied that Decedent was interred in one of the lots. It is averred that Decedent was interred using the lots purchased because Decedent was a very large man and it was necessary to purchase more than one lot to accommodate a grave opening for his oversized vault. Wife took this action as the surviving spouse in accordance with 20 Pa. C.S.A. 305 (b). Her placement of her husband of 25 years should not now be disturbed when no objection was raised in 2006 by Petitioner. The Petition is currently void of any allegation of "enduring estrangement, incompetence, contrary intent or waiver and agreement" as would have had to be raised by the Petitioner at the time of Decedent's death in 2006. 6) Denied. Paragraph 6 is denied as Respondent is without the knowledge to form a belief as to the truth of this averment. Proof of same is demanded at trial. Byway of further answer, Wife always did intend to provide a gravemarker for the Decedent. First, a small "temporary" grave marker was set immediately upon the conclusion of the internment. In addition, Wife's glider bench was nearby during his internment. Due to the picturesque location of the grave near the wooded edge of the Cemetery, Wife choose a glider bench constructed of poly lumber with an engraved plaque bearing engraving "In Loving Memory, Lynn S. Dum.'" This was placed by the gravesite since December 27, 2006. JoAnn choose a bench so that ~ Decedent and JoAnn F. Dum were huge "Muppet" fans and collectors. One plaque stated "In Loving Memory Lynn S. Dum -Kermit" and the other one stated "Sweet Dreams My Love -Miss. Piggy." she could visit there with the parties' beloved dogs. A picture of the bench, as well as other markings, are attached hereto as exhibit "A." Wife was waiting for certain insurance monies to be forthcoming so as to secure amarble/granite headstone. Her intention was to have a "Tractor" engraved in the marker due to the parties' love of tractors and their involvement with the tractor club. A tractor flag was also included on Decedent's gravesite, as well as numerous flowers and wreaths by Wife and her family in their visits. The implementation of this permanent marker plan became delayed due to no receipt of the insurance monies and the advancement of Wife' s own illness. Wife was very conflicted in following the wishes of her husband to be buried in the Bloomfield Cemetery because she knew that she would not be with him there. She wanted to be buried in Cumberland County where she had resided all her life. She advised her family of the dilemma and they told her to follow the wishes of the Decedent. It is further denied that the grave is a poor location. Other lots available at the time of Decedent's death were specifically not chosen by Wife because they were too near the road and a maintenance shed and she desired a peaceful setting for Husband. She chose this location which is adjacent to the Brigadier General Frank E. Tressler Bird Sanctuary and the stream/dam/woods which the Decedent enjoyed. The lot is level. It is only fifty feet off the cemetery road and is not a bad location or inaccessible location as Petitioner avers. The grave of the Decedent is and has always been visited regularly by the entire Fertenbaugh family. 4 7) Admitted. 8) Admitted. 9) Admitted. Byway of further answer, the response to paragraph 6 is incorporated herein by reference. 10) Denied. Byway of further answer, the response to paragraph 6 is incorporated herein by reference. It is further averred that Wife was in the process of purchasing a permanent marble/granite headstone but as a result of certain financial issues related to nonpayment of a life insurance policy and the swift and significant decline of her health, Wife was unable to complete her intentions. Respondent, who has been attempting to complete the Estate of his daughter, has also worked in tandem on securing a memorial for his daughter and for Lynn's grave prior to the filing of this petition. It must be noted that the Bloomfield Cemetery will only allow for the installation of grave footers two times each year to support a marker. Installation can only occur in October and in April. Respondent had ordered the placement of the footers for April far in advance of receiving the present petition. At no time had either Petitioner or her counsel raised any dissatisfaction with the appropriateness of the marking for the Decedent's grave prior to this Petition. 5 11) Denied. The plot is contained in a treed area on a level lot about 50 feet (3 grave widths) off the cemetery road way. 12) Admitted in part. Denied in part. It is admitted that after Wife's death, Petitioner contacted Respondent by letter of June 19, 2008 seeking permission to remove the body of Decedent for reburial at the Dum family cemetery and a copy of which letter is attached to the Petition as Exhibit "A." It is denied that the letter was at the request of the New (sic) Bloomfield Cemetery and Nickel Funeral home. At first request, Respondent seemed agreeable to the transfer to the Dum Cemetery if it could occur without liability to JoAnn's Estate. It is averred that Respondent was distracted with all of the details arising from the estate of his daughter and continuing estate issues relating to the estate of his son-in-law. However, Petitioner failed to promptly pursue the request. During the interim time period, Respondent was able to reflect and discuss the matter with family members and was reminded that the choice of cemetery was at the specific request of the Decedent; that members of Wife's family who visited Decedent's gravesite would not readily access the new location; that Lynn had other relatives (his father, his sister) who had plots near his own in the Bloomfield Cemetery and also that many other members of the Dum family were already interned there -grandparents (William and Ruth Dum), his aunt and uncle (Bonnie and Thomas Lyons). Upon reflection, Respondent believes that it is simply inappropriate to disrupt the resting place of the Decedent after all this time. When the gravesite location was chosen, 6 at no time did Petitioner ever raise any issue concerning the inappropriateness of the site. When the issues was initially raised by Petitioner, the exact place of intended repose was mischaracterized as the "Dum Family Cemetery." It was then learned that this was not the current intention of the Petitioner. The intended Snyder Cemetery is a less appropriate and is actually a less accessible topographic location. 13) Admitted in part. Denied in part. It is admitted that Respondent was initially receptive to the request when he believed that the interment was to be in a Dum Family Cemetery. Byway of further answer, Respondent's answer to paragraph 12 is incorporated herein by reference. It is further averred that at no time were any of the other estate issues addressed in the letter of July 22, 2008, ever completed. However, it is further averred that Respondent has since been made aware of the recollection of Decedent's friends and other relative that Decedent's direct express wishes were to be buried in this current resting place and he should not be removed. 14) Denied. Paragraph 14 is denied as a conclusion of law. There was never any contractual agreement -- offer and acceptance -- on the matter of this man's body. Such would be void against public policy. The letter was simply trying to work toward completion of the estates of both Lynn and JoAnn Dum. Even if the court would construe the letters to be a contract, it is averred that Petitioner has failed to 7 return the vehicles as would have been required pursuant to any contractual analyses and thus exists or was breached. It is admitted that Petitioner's counsel's letter dated August 14, 2008 is attached to the Petition as Exhibit "C." 15) Admitted in part. Denied in part. It is admitted that Petitioner's counsel forwarded the form to Respondent's counsel by cover letter dated October 7, 2008 and same is attached to the Petition as Exhibit "D." The remainder of Paragraph 15 is denied as a conclusion of law. It is further indicated that the lack of prompt action by the Petitioner and failure to work toward resolution of the other Estate issues regarding the vehicles, etc., establish unclean hands by Petitioner and raise the legal defense of laches. 16) Denied. Respondent is without the knowledge to form a belief as to the truth of these averments, therefore, they are denied. Proof of same is demanded at trial. It is averred that if proven, the costs of same are exorbitant. 17) Admitted. It is admitted that Respondent's counsel's letter dated December 8, 2008 is attached to the Petition as Exhibit "E" and the letter indicates Respondent's unwillingness to have Decedent's remains moved. The classification of this position as "suddenly" is denied. Upon investigation and reflection, numerous individuals indicated the specific expressed desire to be buried in the Bloomfield Cemetery. Respondent believes it is wrong to remove 8 Decedent's body in light of his expressed wishes, the fact that he was laid to rest by his beloved Wife without objection from anyone, and to disturb his rest simply at the whim of a relative when all others deceased from his family (grandparents, uncle, aunt, etc.) and other remaining family members (father and sister) have plots in the Bloomfield Cemetery where he is currently interned. 18) Admitted. 19) Denied. Paragraph 19 is denied as a conclusion of law to which no response is due. Byway of further answer, Respondent avers as follows: a) There is no contractual "settlement agreement" and Petitioner's attempts to characterize this important issue is tantamount to having Decedent's body described as chattel and to be exchanged for cars. That was never the intention of Respondent or Respondent's counsel. It is further averred that even if an agreement is found to exist, Petitioner has not satisfied the terms and condition in that vehicles due and owing to Respondent have not been returned and the vehicle due and owing to the Petitioner has not be picked up. It appears that other than this Petition, no other actions have been taken to close out the Estate of the Decedent. b) Admitted in part. Denied in part. It is admitted that Decedent's spouse is deceased. It is denied that her family does not really care. Respondent and 9 his family aver that this allegation is insulting to them since the Decedent had been a son and brother to them all for approximately twenty-five years. If they did not care, they would not be contesting this action. It is admitted that Petitioner/Mother has a present interest but it is asserted that said interest was subordinate to the interest of Wife at the time of selection of the gravesite upon Decedent's death. It is further averred that Decedent's other family members may have similar interest in continuation of his burial in the Bloomfield Cemetery and all who access the grave also have aninterest. c) Denied. Respondent and other member's of Wife's family visit the grave of Decedent regularly. The description of this location as "unmarked, isolated and hazardously located gravesite" is a patent exaggeration and is simply untrue. d) Denied. After reasonable investigation, Respondent is unable to form a decision concerning the truth of the averment and same is denied. It is further denied that the terrain is potentially hazardous or uneven. It is averred that the terrain is more accessible than the proposed Snyder Cemetery. 10 e) Denied. It is denied that Respondent had disregarded his own daughter's intention. As stated above, the plot (2 lot) for Decedent was purchased to fit his oversized vault. Wife never had a desire to be buried in Perry County. Respondent chose a location for his daughter in Cumberland County and laid her to rest as she desired and requested. Respondent and his Wife had lots already located in Adams County. When their daughter was interred in Gate of Heaven Cemetery, they chose to purchase new lots in that Cemetery to be near her. They now hold four lots. Similarly, the option exists for the Petitioner to purchase a lot in the Bloomfield Cemetery to be buried near her son if that is her underlying desire by this Petition. f) Denied. There was no contract and money is not the issue as to why Respondent opposes the action of Petitioner. Significant prejudice and emotional distress will occur with the disinterment of this body. g) Admitted. It is admitted that Petitioner is requesting the Court's approval; however, Respondent asks that the request to have the Decedent's remains disinterred from the Bloomfield Cemetery and relocated to Snyder's Cemetery at her expense be denied. 11 WHEREFORE, Respondent respectfully requests this Honorable Court to deny Petitioner's requests. DATE: May 1, 2009 Barbara Sumple-Sullivan, Esquire Attorney for the Estate of JoAnn F. Dum 549 Bridge Street New Cumberland, PA 17070-1931 (717) 774-1445 Supreme Court I.D. 32317 12 ~~;HIBIT "A" .s,. ~G~ ~ ~rr ~ _~~ ~~ T wl~ ~~ _. ~_ ~~ ~ .. h. i ~ ~: ~ ."...'- ~ ~ ~: . ,. _ ~~ , .._. ~ .r~'~ ~ ~ ~. ~., -..,, ^lYr. t-~ a ._~ ..t ~ rte. ~. _ ~a ~. +.a.~ _= ~ r. . -~. - e _ n `s~~Sfr. Y ~ ~~ '~ ~f'i1~° ~ y. ^.^[ ~a t j"*st .~ ~' r~ti..,,. +. ~4~r r.:. nv ._ ~ EXHIBIT "A'' Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070-1931 (717)774-1445 Supreme Court I.D. 32317 IN RE: IN THE COURT OF COMMON PLEAS LYNN S. DUM, :CUMBERLAND COUNTY, PENNSYLVANIA DECEASED :ORPHAN'S COURT DIVISION No. 21-07-0065 VERIFICATION I, Creedon J. Fertenbaugh, Executor for the Estate of JoAnn F. Dum, hereby certify that the facts set forth in the foregoing Answer are true and correct to the best of my knowledge, information and belief. I understand that any false statements made herein are subject to penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities. f ~; _.. DATED: April _, 2009 ,. CREEDON T RTENBAU H Executor for the Estate of JoAnn F. Dum Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070-1931 (717)774-1445 Supreme Court LD. 32317 ~ ~; IN THE COURT OF COMMON PLEAS LYNN S. DUM, :CUMBERLAND COUNTY, PENNSYLVANIA DECEASED :ORPHAN'S COURT DIVISION No. 21-07-0065 CERTIFICATE OF SERVICE I, BARBARA SUMPLE-SULLIVAN, ESQUIRE, do hereby certify that on this date, I served a true and correct copy of the Estate of JoAnn F. Dum's Answer to Petition to Disinter and Relocate Remains, in the above-captioned matter upon the following individual(s), by United States first-class mail, postage prepaid, addressed as follows: Howard B. Krug, Esquire Purcell, Krug & Haller 1719 North Front Street Harrisburg, PA 17102 DATE: May 1, 2009 (717) 774-1445 Supreme Court LD. 32317 Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070-1931 LAW OFFICES BARBARA SUMPLE-SULLIVAN 549 BRIDGE STREET NEW CUMBERLAND, PENNSYLVANIA 17070-1831 PHONE (717) 774-1445 FAX (717) 774-7059 May 1, 2009 Register of Wills Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 ~~ ~- Re: Estate of Lynn S. Dum ~ ~ ~ - No. 21-07-0065 /Cumberland County ~~'-~;~ , ' - -~' - ~ _. ---~ Dear Sir/Madam: "' ~=~? ca -~ -~ .. Enclosed please find an original and one (1) copy of the Estate of JoAnn F. Dum's~ .Answer to Petition to Disinter and Relocate Remains in the above captioned matter. :Please file the original and return a time stamped copy to my office in the enclosed, self- addressed stamped envelope. Thank you for your assistance in this matter. Should you have any questions please contact my office. Sincerely )!ou i ' ,~`' `f, !"~ .___~_...__._~.___.m~-_. ... ` Barbara Sumple-Sullivan 'BSS/le Enclosures cc: Howard B. Krug, Esquire (w/encl) Mr. Creedon J. Fertenbaugh, Executor (w/encl)