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HomeMy WebLinkAbout06-12-09IN RE: ESTATE OF ANITA M. KISSINGER, DECEASED IN THE COUNT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION NO. 21-08-0926 RESPONSE TO JUANITA M. PANKO'S MOTION TO DISQUALIFY COUNSEL AND NOW, comes Lester G. Kissinger, Jr., by and through his counsel, Ball, Marren & Connell, and files this Response to a Motion to Disqualify Counsel: 1. Admitted. 2. Admitted. By way of further answer, Lester G. Kissinger, Jr., is the son of Anita M. Kissinger. 3. Admitted. c-~ L=_3 4. Admitted. ~ -~_'~ „~ '~-? ~ ~' rv 7 - ~ 5. - ~ Admitted. :~ '~ - .. .-,,^ -,-, ~ .~ ~ v -~ ~ ; -~-~ _. ~Y'1 ~ 6 It is admitted that on two occasions Respondent has retairrecL~e rv ~ ~ ~ r- r1 . , ~- legal services of Richard E. Connell, Esquire of the law firm Ball, '"~ Marren & Connell. Those representations consisted of the preparation of Wills, Powers of Attorney and Living Wills for Respondent and his wife, Deborah Kissinger, in 1996 and revisions to those documents in 2005. 7. Denied as stated. Respondent delivered a letter to Attorney Donnell on or about May 27, 2008 seeking, in part, general information about the roles of fiduciaries. The document speaks for itself. In fact, Respondent had already contacted Attorney Connell on May 19, 2008 on behalf of Decedent to have Attorney Connell review Decedent's Will for her in order to advise her whether the then nearly twenty-seven year old Will complied with current legal requirements and whether any changes were needed, since the Decedent signed the Will, her husband, Lester G. Kissinger, Sr., had died. The May 27, 2008 letter forwarded to Attorney Connell additional documents of the Decedent for review. Under no circumstances did Respondent contract for nor did Attorney Connell agree to and accept any retention by Respondent, Movant or Jacob T. Kissinger. 8. Denied as stated. The averment purports to suggest that an attorney-client relationship was founded between Attorney Connell, Respondent, Movant and Jacob T. Kissinger by virtue of the correspondence. No such retention occurred and no attorney- client relationship was established. On the contrary, from the date of initial contact by Respondent on May 19, 2008, Attorney Connell opened a file naming Anita M. Kissinger as his client, in that the principal reason for the contact was to review Mrs. Kissinger's documents to advise her whether the documents were legally sound, appeared to be properly executed and were of a type and character which would accomplish her goals. By way of further answer, nothing in Respondent's letters to Attorney Connell suggested that he had the authority or standing to speak for his sister or brother, that he had the authority on their behalf to retain counsel and further Respondent replies that Attorney Connell did not accept any retention by Movant or her brothers. Attorney Connell's responses to the generic, background questions set forth by Respondent about fiduciary responsibilities were provided during a telephone conversation between Respondent and Attorney Connell with any and all time expended being recorded as service to Anita Kissinger. (See Exhibit "1") 9. Denied as stated. Attorney Connell did not during the June 10, 2008 meeting at Decedent's home act as legal counsel for each or any of the Kissinger siblings. At the opening of the meeting, which was held at Decedent's home as an accommodation due to her weakened physical condition as she had been diagnosed with terminal cancer, Attorney Connell advised Decedent that he was attending the meeting to represent her interests to discuss her planning documents and to respond to any questions she had about her estate plan, her other planning documents, namely, a Power of Attorney and Living Will and to assist her in understanding the probate and administration process. Attorney Connell further advised Mrs. Kissinger that while their relationship was confidential, she could, if she chose, allow Respondent and Movant to attend the meeting. Mrs. Kissinger expressed a preference that Respondent and Movant be allowed to remain. By way of further observation, at the Decedent's house on the date of the meeting and either in the dining room where the meeting occurred or in an adjacent room not separated by a closed door, was the wife of Respondent who either heard or could have heard all discussions which ensued. By way of further answer, neither Respondent nor Movant provided any information to Attorney Connell other than that relating to Mrs. Kissinger, Attorney Connell's client. No confidential information was related by Movant or Respondent to Attorney Connell. It is denied that Attorney Connell rendered any legal advice to the Kissinger siblings. By way of further answer, it is specifically denied that Jacob T. Kissinger attended the June 10, 2008 meeting. 10. Denied. 11. Admitted that the rule is as stated. Denied that it applies to the 4 pending matter as: 1) Movant was never a client of Attorney Connell or his firm, Ball, Murren & ~'onnell. 2) Discussions about fiduciary duties and responsibilities and the Decedent's testamentary plan which constituted the basis of Attorney Connell's retention by Decedent are unrelated to the instant proceeding. 12. Denied. 13. Admitted, but by way of further answer, no such consent was required. 14. Admitted, but irrelevant as Movant has no basis upon which to consent or withhold consent to the involvement of Attorney Connell or Ball, Murren & Connell in representing Respondent in his role as Executor or in representing the Estate of Anita M. Kissinger. 15. Denied. Attorney Connell advised Attorney Schiffman of the Serratelli, Schiffman firm during a phone conversation that he had met with Decedent and that Movant and Respondent were in attendance and that as a result, Mr. Connell received confirmation from the Decedent that all her property was to be divided equally among her three children. If from that conversation, Mr. 5 Schiffman concluded that Mr. Connell would testify in the case to recover real estate (which is not the same as this case), that is simply his opinion. 16. Admitted that Rule 3.7 provides in part as stated but, in this case, there is no likelihood that Attorney Connell would be a necessary witness. 17. Admitted that a letter was sent by Attorney Schiffman to Attorney Connell as it related to settlement negotiations concerning a likely civil action for the recovery of Decedent's real estate transferred days before Decedent's death to the Movant. The letter speaks for itself but it is noted that Mr. Schiffman's conclusion was not shared by Attorney Connell. The letter did not address ``any litigation on behalf of Respondent against Movant" as asserted in the Motion. However, to the extent that Movant believes that Attorney Connell is a necessary witness in the separate civil action to recover real property, Respondent now concurs and understands Movant's position to be that Attorney Connell's testimony in that case is necessary, competent and relevant to that proceeding. 18. Admitted. 19. Admitted that Attorney Connell and the firm Ball, Murren & Connell withdrew from the civil matter but denied that the withdrawal was "in response to the Motion to Disqualify" to the 6 extent that the assertion by Movant suggests that Respondent and/or his attorney somehow conceded that the Motion in that action was meritorious. 20. Denied as to the stated characterization of the withdrawal in the civil matter. In specific response, Respondent wished to avoid being diverted by Movant's procedural ploy and did not want the civil case to be delayed by adjudication about involvement of counsel and, as a result, directed Attorney Connell to withdraw as counsel. That in no way constitutes an acknowledgement that Movant's effort in the other matter was meritorious. It is further denied that the situations in the two cases are identical or that any inherent conflict of interest exists. 21. Denied that any conflict of interest exists in representing Respondent. 22. Admitted. 23. Denied. 24. Specifically denied as Movant never provided any information, much less confidential information, to Attorney Connell or his firm. 25. Denied as stated. The matter was referred to Judge Ebert as evidenced by the attached Order dated May 26, 2009. (See Exhibit «2»~ 7 26. Admitted. WHEREFORE, Respondent, Lester G. Kissinger, Jr., requests that the Motion to Disqualify Petitioner's Counsel be denied. Respectfully Submitted: Richar .Connell, Esqu' e I.D. # 21542 Ball, Murren & Connell 2303 Market Street Camp Hill, PA 17011 (717) 232-8731 Date .~UN ~ ~~ aZa~ Attorney for Respondent Lester U. Kissinger, Jr. Executor of the Estate of Anita M. Kissinger 8 CERTIFICATE OF SERVICE I, Richard E. Connell, Esquire, herby certify that I have on the below date caused a true and correct copy of the foregoing Response to be served on the person and in the manner indicated below: FIRST CLASS MAIL POSTAGE PRE-PAID ADDRESSED AS FOLLOWS: Paige Macdonald-Matthes, Esquire Serratelli, Schiffman, Brown & Calhoon, P.C. 2080 Linglestown Road - Suite 201 Harrisburg, PA 17110 Date ~I uN ~L ~ ~. c~_ Richard E. Conne squire VERIFICATION I, Lester G. Kissinger, Jr., state that I am the Executor of the Estate of Anita M. Kissinger, the Plaintiff herein, that I am authorized to make this affidavit on its behalf, and that the facts set forth in the foregoing Response are true and correct to the best of my information and belief. I understand that my statements are made subject to 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. i' .~'~'~. %'~ G ~ -tells-~..~' Lester G. Kissinger, Jr., xecutor of the Estate of Anita M. Kissinger Date ~~'~ ~~, ~~~' ~~ Date Invoice # 7/8/2008 184451 Mrs. Anita M. Kissinger 2',15 North 30th Street Cramp Hill, PA 17011 Date I Description I Hours I Amount RE: Estate Planning -File No. 2868 5/19/2008 Mr. Connell 0.4 0.00 Call with Mr. Kissinger re: planning issues for Mrs. Kissinger. (NO CHARGE) 5/27/2008 Mr. Connell 1.5 0.00 Call with Mr. Kissinger to discuss planning issues; Attention to estate planning documents of Mrs. Kissinger. (NO CHARGE) 5/27/2008 Mr. Connell 0.2 0.00 Attention to file and materials. (NO CHARGE) 6/5/2008 Mr. Connell Call with Mr. Kissinger. (NO CHARGE) 0.1 0.00 6/10/201)8 Mr. Connell 1.3 0.00 Call with Mr. Kissinger and prepare for meeting; Travel to and from Kissinger home to meet with Mrs. Kissinger re: planning questions. (NO CHARGE) SUBTOTAL 0.00 Total $O.oO IN RE: IN THE COURT OF COMMON PLEAS OF ANITA M. KISSINGER, :CUMBERLAND COUNTY, PENNSYLVANIA DECEASED 21-08-0926 ORPHANS' COURT ORDER OF COURT AND NOW, this 26th day of May, 2009, upon consideration of the Petition for Turnover of Assets filed by the Petitioner, Lester G. Kissinger, Jr., Executor of the Estate of Anita M. Kissinger, IT IS HEREBY ORDERED AND DIRECTED that: 1. A Rule is issued upon the Respondent to show cause why the relief requested should not be granted; 2. The Respondent wil[ file an answer on or before June 15, 2009; 3. If no answer to the Rule to Show cause is filed by the required date, the relief requested by Petitioner shall be granted upon the Court's receipt of a Motion requesting Rule be made Absolute. If the Respondent files an answer to this Rule to Show Cause, the Court will determine if further order or hearing is necessary. 4. The Clerk of the Orphans' Court is directed to forward said Answer to this Court. By the Court, ~~ M. L. Ebert, Jr., ~' `!, J. Paige Macdonald-Matthes, Esquire Attorney for Respondent ~ ~ _ , C O ~o - ;_~ ~ ~ _ , Richard E Connell, Esquire ; ~~~~ Attorney for Petitioner -' F~ m R, = -- - bas -, ~` <-_ -7, - _ ~. _ -; ~ _ - -- _;~ W v -- N