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HomeMy WebLinkAbout08-21-09 (2) NDEX TO WITNESSES FOR PETITIONER Yvonne Wheeler Yvonne. Wheeler recalled FOR RESPONDENT DIRECT CROSS REDIRECT RECROSS 6 __ -- -- 20 23 -- -- Brett Heckendorn 26 -- -- -- INDEX TO EXHIBITS FOR PETITIONER Ex. No. 1 - accounting MARKED ADMITTED 3 4 2 THE COURT: Please be seated. This is the 2 time and place for a hearing on a Petition for Declaratory 3 Judgment Pursuant To 42 Pa. C.S. Section 7535 (2) and (3). 4 We will let the record indicate that the Petitioner is 5 present in court with her counsel, Thomas E. Flower, 6 Esquire. The Respondents are present I believe or at least 7 may be present with their counsel, Karl E. Rominger, 8 Esquire, and Harold S. Irwin, III, Esquire, attorney for the 9 Estate, is also present. Mr. Flower. 10 MR. FLOWER: Your Honor, the checkbook 11 accounting, we were going to stipulate to enter that into 12 the record, and I will hand that up. 13 MR. ROMINGER: I believe without stipulating 14 to its accuracy or totality, but further to provide 15 something for the Court to look at. 16 THE COURT: How would you like that marked? 17 MR. FLOWER: That can be Petitioner's Exhibit 18 A. 19 THE COURT: Okay. We will make it 20 Petitioner's Exhibit 1. 21 (Petitioner's Exhibit No. 1 was marked for 22 identification.) 23 THE COURT: And, again, exactly what is that 24 document? 25 MR. FLOWER: It's an account of funds 3 received and expended by Irwin Law Office, Estate of Richard 2 L. Heckendorn, receipts to date, expenditures to date, and 3 it's not that we doubt the accuracy of each figure, it's 4 just that we are not exactly sure precisely what each one 5 represents, although we do know what certain ones represent. 6 THE COURT: All right. And is this being 7 entered by stipulation? g MR. ROMINGER: It is without stipulating to 9 the accuracy of it, I believe, right? 10 MR. FLOWER: Right. 11 THE COURT: All right. Mr. Irwin, do you 12 consider yourself a party for purposes of objecting t.o 13 exhibits? Do you want to be included in that group? 14 MR. IRWIN: I'm just here to assist the Court 15 in any way necessary. 16 THE COURT: So you are observing? 17 MR. IRWIN: Yes. lg THE COURT: You don't want to ask questions? 19 MR. IRWIN: No, I don't. 20 THE COURT: All right. Petitioner's Exhibit 21 1 is admitted. 22 (Petitioner's Exhibit No. 1 was admitted into 23 evidence.) 24 MR. FLOWER: Your Honor, do I need to address 25 the question of notice to minors on the record that we 4 discussed in chambers? 2 THE COURT: We did meet in chambers with 3 counsel, and, Mr. Rominger, I believe that you are in 4 agreement that there is no indispensable party missing from 5 this case; is that right? 6 MR. ROMINGER: I agree with that, as counsel 7 had discussed in chambers, the relative interest of each 8 minor child, which in this case would be the grandchildren, 9 is adequately addressed. Maybe I'll let you explain it. 10 THE COURT: Well, if you are both in 11 agreement that there is not an issue as to indispensable or 12 necessary parties, I will assume that has been resolved. 13 MR. ROMINGER: The third party, the other 14 indispensable party potentially would be the mother of 15 decedent, who was given a specific bequest, but it is my 16 understanding that all parties are going to agree that that 17 specific bequest stands and is not an issue in any way 18 today. 19 MR. FLOWER: Agreed. 20 THE COURT: All right. Then we will consider 21 that issue resolved. Mr. Flower. 22 MR. FLOWER: I would like to call Yvonne 23 Wheeler. 24 THE COURT: Okay. 25 5 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Whereupon, YVONNE WHEELER having been duly sworn, testified as follows: DIRECT EXAMINATION BY MR. FLOWER: Q Will you state your name for the record? A Yvonne K. Wheeler. Q And your address? A 1369 Mountain Road, Newburg, Pennsylvania, 17240. THE COURT: And would you spell your name -- your first and last names, please? THE WITNESS: Y-v-o-n-n-e, and the last name is W-h-e-e-l-e-r. THE COURT: Thank you. BY MR. FLOWER: Q And you are -- were you involved with the -- in a relationship with the decedent in this case, Richard Heckendorn? A Yes, I was. Q And for how long were you involved with him? A Since 1975 we were together as a couple. We moved in together in 1977, April of 1977. Q That would be approximately 30 years? A Exactly. 6 Q And do you have children? 2 A Yes, I do. I have two. They are both grown. 3 I have a son, Norman, and a daughter, Jennifer. 4 Q And do you have any grandchildren? 5 A Yes. I have two grandchildren, Taylor, which 6 is 13, and Eliza is 4. ~ Q Four? g A Four. Four years old, um-hum. 9 Q And are these the daughters of your -- are 10 these children of your son or daughter? 11 A Daughter. Jennifer. 12 Q Did these children have any relationship with 13 Mr. Heckendorn? 14 A My granddaughter Taylor did. That was her 15 Pappy. When she was born, I was not working at that time, 16 and for the first 8 months of her life she practically lived 17 with us 5 days a week. She went home on the weekends with 18 her mom and dad. 19 MR. FLOWER: Okay. I have no further 20 questions for this witness, Your Honor. 21 THE COURT: Okay. Mr. Rominger. 22 MR. ROMINGER: Nothing. 23 THE COURT: Okay. You may step down. Thank 24 you. 25 THE WITNESS: Thank you. 7 THE COURT: Mr. Flower. 2 MR. FLOWER: I have no other witnesses to 3 call, Your Honor. 4 THE COURT: Okay. 5 MR. ROMINGER: The Court's indulgence for a 6 moment, Your Honor. ~ THE COURT: Certainly. g MR. ROMINGER: Your Honor, I don't have any 9 evidence to present. 10 THE COURT: Okay. Do counsel wish to make 11 closing arguments? 12 MR. ROMINGER: Your Honor, I believe we 13 briefed it, although I want to clarify one thing. In my 14 brief, argument A, if the Court were to determine that the 15 devise was not subject to the $25,000 interest as we have 16 proposed in the alternative, I just want to make it clear 17 we're not giving up the thought that perhaps then it was a 18 life estate. 19 I think what is important is it looks like in 20 the ambiguity the way that the decedent was thinking was I 21 am going to give this for the use of my significant other, 22 whatever her status may be. I want my kids, however, to 23 have an interest in it. So I want her to either have a life 24 estate and then they get the property, but if at some point 25 she needed to move or sell it, I want her to buy out their 8 interest in the life estate for $25,000 per kid. 2 So I think if you look at the will, it is 3 actually less confusing than it seems. Decedent, in my mind 4 -- I'm only talking this issue when I say less confusing 5 than it seems -- the decedent sort of sets up a scheme that 6 makes sense. I want her to be able to stay there and not 7 have to move out, and when she dies, I want it to go to my 8 kids. But on the other hand if life is -- circumstances are 9 such that she does need to sell it, I want her to at least 10 cash out that remainderman value and give it to my kids. 11 So I think that was his clear intent, was 12 either that she exercise the life estate and leave it or 13 that she reside in it, then sell it, and cash out his kids 14 value in that life estate, which he set at $25,000 per kid. 15 So I don't think it's rocket science. I think it's either a 16 life estate and the rest is precatory or she owes each kid 17 $25,000. lg THE COURT: Mr. Flower. 19 MR. FLOWER: Of course those positions are 20 contradictory. I think that the decedent's intention has to 21 be determined from the meaning of the words he used and from 22 the circumstances surrounding when he made his will, and 23 from the scheme of distribution that he provided for. 24 He opens the will, my love of my life, 25 Yvonne, I want to get the house and its contents. He then 9 provides a provision that I believe it can only be logically 2 read as meaning if she doesn't survive me, then to be 3 divided among Brett and Kim and Norman and Jen, the four 4 children of this couple. 5 It doesn't say at the time of her death. It 6 says in the event that she dies also. The close intentions 7 of the words of this will if we accept its written 8 vernacular, I think brings meaning out. He then says, if 9 she decides to sell the house, she should give my two 10 children, the decedent's children, $25,000 each. 11 These are the words that we say do not have a 12 mandatory meaning, and not because of the use of the word 13 should, which we normally think of as precatory, but because 14 he gave her the house and the contents, and that was his 15 dominant intention. That was his primary purpose. 16 That is what the courts look at in all of 17 these cases, which are cited in the briefs, where a devise 18 was made or a bequest was made, and then the testator in the 19 subsequent provision tells the -- puts a restriction on it, 20 cuts down the estate, and even when there is mandatory 21 language used, if a devise or a bequest is made with 22 sufficiently explicit language, then the Courts do not 23 recognize an equivocal or a doubtful statement that cuts 24 down that estate. And that is why the word should in this 25 context is precatory. 10 I want to draw the Court's attention to the 2 case of Brubaker v. Lauver cited by the Respondent with a 3 quote, and that case is an example. This was a soldier in 4 World War I who wrote a letter to his sister, I am leaving 5 you the life insurance, and I want it divided equally among 6 our siblings, and I have written a letter to our brother so 7 that he knows too. g Well, the Court held that the language that 9 said I want that given equally -- divided equally was 10 precatory. That is the Court's kind of interpretation in 11 the line of cases that we cite, which is any time that a 12 thing is given and the testator wants to put strings on it, 13 the language has to be absolutely unequivocal and clear, and 14 the Courts look at whether the initial gift was the dominant 15 purpose, and whether the words argued to be precatory are 16 the secondary purpose or whether the primary purpose was the 17 limitation. lg And in this will the first person provided 19 for is the Petitioner, the last person provided for is the 20 Petitioner where he says, and anything else I may get from 21 my mother I want Yvonne to have. That is as close as he had 22 to a residuary clause. So I think that these cases need to 23 be looked at for their facts. 24 The second issue we're arguing about is 25 whether the house and its contents means all of his personal 11 property that was on the place or whether it is limited to 2 only the portion of the house that would exclude the 3 attached garage. And Respondent's brief quotes some 4 language that says the Supreme Court has provided that the 5 words contents of a house means this. Read those cases, 6 Your Honor. ~ Those cases were decided on two principles. 8 One is the testator's scheme of distribution. In both the 9 cited cases, Rudy, and the other one is called Lamb, 10 testator gave a house and its contents, and then the residue 11 to charity. And in both cases in the house where it shows 12 an action, mortgage receivable, stock and bond certificates, 13 passbook savings accounts, titles to vehicles, and the Court 14 held that if the contents of the house were construed to 15 include these assets, we would be destroying any residue, 16 and the testator obviously intended to leave a residue. So 17 to do violence to the intentions, if we were to interpret 18 the contents as including these indica of ownership of these 19 assets. 20 The second point is the nature of the assets. 21 Now, in our case in contrast this will typically leaves -- 22 he leaves each specific thing by an individual bequest. 23 These are all specific devises and bequests. There is no 24 more residuary clause than the one which, of course, is in 25 effect of I leave Yvonne anything I may inherit from my 12 mother because he predeceased his mother. 2 But in the case of this will, to exclude 3 motorcycles and other things that were in the garage from 4 the contents of the home, to exclude those would throw them 5 into intestacy. In this case there is no residue. So it is 6 the opposite factual situation when you get to the 7 dispositive scheme. g And a will should always be construed so as 9 to pass all of the decedent's property, and that is both the 10 case law and the codified rule. So in that -- on that issue 11 of the house and its contents, the language that the 12 Respondents brief cites is in a footnote after the holding, 13 holding is based on the testator's scheme of distribution 14 and the nature of the assets, and in the footnote -- and 15 this is consistent with the generally taken meaning of 16 contents and then quoting a case. 1~ The last issue is when the decedent said the 18 lot next door to my house can be sold, and the proceeds 19 given to all the grandchildren. We use a simple grammatical 20 point in our brief, nobody says all two of them, and the 21 reason I wanted to put my witness on was to establish that 22 he had a real relationship with all four grandchildren, the 23 grandchildren that are the daughter of the -- the children 24 of the Respondent and the grandchildren that are the 25 grandchildren of the Petitioner. So that in his mind all 13 the grandchildren would be a very awkward use of language to 2 say all two of them. I don't think I have to do any 3 follow-up brief, Your Honor. I wanted to make those points. 4 THE COURT: Now, you are not contending that 5 there was a common law marriage between the Petitioner and 6 the decedent? ~ MR. FLOWER: No, not with respect to the 8 Department of Revenue. 9 THE COURT: And who has the burden of proof 10 in this proceeding, in your view? 11 MR. FLOWER: I hadn't thought of the burden 12 of proof because we are petitioning as fiduciaries for the 13 construction of a will, and if I filed a petition, Maybe 14 I've got the burden of persuasion. I don't know 15 THE COURT: I don't think you want to concede 16 that so we will leave it unsaid. Mr. Rominger. l~ MR. ROMINGER: Just two points I wanted to 18 respond to. It is true that he uses the word grandchildren, 19 and counsel would have us believe that means all of his 20 grandchildren as a class, but interestingly when he talks 21 about his children and her children, he names each one by an 22 individual name, and so he seems to be able to make that 23 distinction where when he wants to talk about his two 24 children and her two children as one unit, he names all four 25 of them by name. 14 Later he refers to all my grandchildren. 2 Now, I am just suggesting that if we are going to strictly 3 construe this will as if it were written by a lawyer, the 4 class of his biological grandchildren versus his ability to 5 sort of spell out the children by name, because if he really 6 meant to include all four children, wouldn't he have just 7 said children rather than spell them all out by name. So it 8 seems like he was aware of this distinction between lineal 9 decendents and people that were not actually his natural 10 issue. 11 The other issue that I take some umbrage with 12 is counsel asked you to read the will in the vernacular, but 13 then he says but he didn't include a formal residue clause. 14 It's written -- if it's written in the vernacular, and then 15 it's written in the vernacular and it's not going to track a 16 normal will as we expect to see from a lawyer, but I can't 17 expect that he meant to essentially write his own children 18 out either. And I think that is fair and that is culpable 19 in this case. 20 THE COURT: Do you have any position on the 21 burden of proof ? 22 MR. ROMINGER: My thought on that had been 23 that there is no burden here because it is declaratory 24 judgement, and the Court has to determine what the language 25 means. I think if somebody's asking you to use parol 15 evidence, then the burden is on them to bring that evidence 2 forward. And I think you can only use or reach for parol 3 evidence if you find that the will is not adequate on its 4 four corners first so... 5 THE COURT: Well, are you in agreement it is 6 ambiguous at least as to the house? ~ MR. ROMINGER: I am in agreement that it is 8 ambiguous. 9 THE COURT: As to that? 10 MR. ROMINGER: At least as to the house. 11 THE COURT: Are you in agreement, Mr. Flower? 12 MR. FLOWER: I think I know what it means, 13 but I don't think we're asking for parol evidence to be 14 admitted because we are not asking for anyone to testify as 15 to what the decedent intended or told them he intended. 16 What we are asking the Court to do is to interpret the will 17 as all the cases say to interpret wills, which is to take 18 into account the circumstances that surround the testator at 19 the time that he wrote the will, meaning the family, the 20 nature of his objects of his bounty, and the nature of his 21 estate. This is one of those things that every case 22 interpreting wills recites at the beginning. So I don't 23 think it's parol evidence to look at the circumstances 24 surrounding the testator. 25 THE COURT: But you do feel it is ambiguous \ 16 as to the house? 2 MR. FLOWER: Yes, I think it's ambiguous. 3 If I could also make one comment. 4 THE COURT: Certainly. 5 MR. FLOWER: There is some conclusion -- some 6 confusion here that may be perpetrated. We're not saying 7 that all of the grandchildren are the decedent's blood 8 decendents because they are not. These two -- the 9 Respondent children are his grandchildren, but when he says 10 all of the grandchildren, he's including, in our view, the 11 Petitioner, and the very next sentence of the will says, I 12 want Brett, Kim, Norman and Jenny, and in other places it 13 says Brett, Kim, Norman, and Jenny. So that second 14 generation is often mentioned as a group. 15 THE COURT: Okay. Mr. Rominger, anything 16 further? 17 MR. ROMINGER: Just that I think that is the 18 reason why he did that. He named four kids to make it clear 19 that he wanted the four kids to share. He says my 20 grandchildren because he was talking about his 21 grandchildren. I just think that that -- I think I said it 22 in chambers, to me that is like a legislature. When they 23 choose one word or choose a different word, they know what 24 their -- they presume they know what they were doing, and I 25 guess that is my argument on that issue. 17 THE COURT: All right. And, Mr. Irwin, is 2 there anything you wanted to say at this point? 3 MR. IRWIN: I don't think it's clear, Your 4 Honor, in what I have read of the petition or Mr. Flower's 5 brief that there were two garages on the property. One is 6 the structure of house. ~ THE COURT: This is one problem, because I 8 don't have any evidence as to the layout of the house or 9 what the house was worth. 10 MR. IRWIN: I think I can clarify this part. 11 THE COURT: Well, I know, but it's not really 12 of evidence. 13 MR. IRWIN: I think they will stipulate. 14 THE COURT: They may be able to stipulate as 15 to something but right now I don't have any evidence as to 16 the garage unless I can deduce it from the pleadings. 17 MR. FLOWER: I believe you can deduce it from 18 the pleadings. 19 MR. IRWIN: Well, I was simply going to say 20 that there is one garage that is within the structure of the 21 house, but there is a separate detached garage, which there 22 were a variety of personal property, and I don't know that 23 that is clear in the plead ings. 24 THE COURT: I don't know either. 25 MR. IRWIN: He refers to it as attached. 18 MR. FLOWER: Well, it's not. I didn't really 2 know about the detached garage, and I don't think there's 3 much of an issue about the detached separate garage that I'm 4 aware of . 5 MR. ROMINGER: We were all on the property 6 and I think counsel can agree that there is two separate 7 buildings, one attached garage and one garage further down 8 in the yard. 9 MR. FLOWER: Yeah. 10 MR. ROMINGER: I'll offer that as a 11 stipulation. 12 MR. FLOWER: May we stipulate? 13 THE COURT: Certainly, you can stipulate to 14 anything. I don't know where the motorcycles were, but it's 15 up to you as to what you want to present as evidence. 16 MR. FLOWER: Vehicles were contained in the 17 garage attached to the house. Miscellaneous personal 18 property, including the lawn mower, were contained in the 19 detached garage; is that correct? 20 THE PLAINTIFF: A shed out back. 21 MR. FLOWER: A shed out back. Okay. 22 THE COURT: This is too confusing for the 23 stenographer. If you want to stipulate to something we will 24 take a recess and stipulate to some of these facts, like how 25 much the house was worth as compared to the $25,000 that was 19 supposed to go to a couple people. I'm happy to hear any 2 evidence you want to present. Otherwise, I am pretty much 3 left with the will and what has been presented from the 4 witness stand. 5 MR. ROMINGER: Your Honor, I think I can 6 offer the stipulation like this. There were -- ~ THE COURT: Well, let me -- rather than just 8 discuss it with you, if you can reach a stipulation -- we'll 9 take a short recess, and I'll reconvene in a couple minutes. 10 MR. FLOWER: Thank you, Your Honor. 11 THE COURT: Sure. 12 (A recess was taken at 11:19 a.m.) 13 AFTER RECESS 14 THE COURT: Mr. Flower. 15 MR. FLOWER: We couldn't reach a stipulation. 16 The more detailed it got, the more we disagreed, but if I 17 could recall my witness for a few quick questions. lg THE COURT: Certainly. 19 MR. FLOWER: Thank you. I'll call Yvonne 20 Wheeler. 21 Whereupon, 22 YVONNE WHEELER 23 having been duly sworn, testified as follows: 24 DIRECT EXAMINATION 25 BY MR. FLOWER: 20 Q will you please describe the -- 2 THE COURT: Well, first would you state your 3 name again for the stenographer, please? 4 THE WITNESS: Yvonne K. Wheeler. 5 THE COURT: Thank you. 6 BY MR. FLOWER: 7 Q Will you please describe the structures on 8 the real estate that was the testator's where you lived? 9 A It's a bilevel home with an attached garage 10 underneath the bedrooms. There was a separate garage to the 11 side and a storage shed out back. 12 Q And did your husband -- what vehicles did 13 your husband own? 14 A Two motorcycles. 15 THE COURT: Now wait. You say her husband. 16 MR. FLOWER: I beg your pardon. I withdraw 17 that. lg THE COURT: All right. 19 MR. FLOWER: That was a flip of the tongue. 20 Thank you. 21 THE COURT: All right. 22 BY MR. FLOWER: 23 Q Wha t vehicles did the testator own? 24 A Two motorcycles, a Buick, 1993 Buick, and he 25 also drove a schoo l van that was his occupation when he was 21 deceased. 2 Q And did he own half interest in any vehicles? 3 A Half interest in mine, a 2002 Buick -- or 4 Chevy Malibu that I drive. 5 Q Now, where were the vehicles kept when they 6 weren't on the road or in use? ~ A My car, the Malibu, is always in the garage. g Q Which garage? Specify. 9 A The attached garage, attached to the house. 10 The two motorcycles were in the attached garage when not 11 being driven. The school van was parked outside alongside 12 the house, and the Buick was in the detached garage. And 13 the lawn mower was in the storage shed. In the summer he 14 would put the lawn mower in the detached garage because it 15 was quicker getting it out. 16 Q All right. And how often were the decedent's 17 children, the Respondents, visiting at his place during the 18 last ten years of his life? 19 A I would say probably in the last ten years, 20 Kim may have been there once or twice, the daughter. 21 Brett, maybe the same, maybe once or twice. They were there 22 after he was killed, the day after, they came up. We were 23 doing the arrangements, and also when all the attorneys were 24 present Kim was there. Brett was not there. 25 MR. FLOWER: That's a sufficient answer. No 22 further questions, Your Honor. 2 THE COURT: Mr. Rominger. 3 CROSS EXAMINATION 4 BY MR. ROMINGER: 5 Q When you listed all of vehicles there was 6 also a large four-by-four truck? ~ A Oh, that truck's been long gone. g Q But it was there when he died, right? 9 A No. Not that I remember, it wasn't. Our 10 names were both on that truck. 11 Q I'm just going to show you -- 12 A Yes. I'm sorry, yes. The truck was there. 13 It was also in the detached garage, but both of our names 14 were on the vehicle. 15 Q Okay. And you would agree that there was 16 lots of space in the -- 1~ A -- detached? lg Q -- the detached garage? 19 A Yes. There was lots of space. There's still 20 lots of space in there. 21 Q You were also the beneficiary of a life 22 insurance policy that the decedent left, correct? 23 A No, no life insurance. He had no life 24 insurance. 25 Q Do you remember a money account? Getting any 23 money? 2 A When he worked at Chapel Point he had a 3 little mini ret irement, like 12, 13 hundred dollars. 4 Q Does that refresh your recollection? 5 A Oh, yes. This is not a life insurance 6 policy. ~ Q What was that? g A That was his annuity. He put in, it was like 9 an IR.A 401-K kind of thing, but I was not the only one that 10 benefited from that. Brett and Kim both got equal parts. 11 Q He left one-third to Brett, one-third to Kim. 12 A And one-third to me. 13 Q And on there he listed you as his friend, 14 correct? 15 A Yes. 16 Q There was a time when you were denying access 17 to the garages to the parties, correct? lg A Not to the garages, no. 19 Q You always allowed -- you gave them full 20 access? 21 A If they would have been there, yes, they 22 could have ful l access. 23 Q Did Mr. Irwin at some point write you a 24 letter telling you that you should allow access to those 25 items? 24 A He said an inventory needed to be taken of 2 the garages. I assumed that Hal Irwin was going to be 3 coming up with the children to do the inventory. 4 Q And when the children came you wouldn't allow 5 them in, corr ect? 6 A Oh, they were allowed in, um-hum. They were 7 all in there. g Q When are you talking about, ma'am? 9 A After Dick passed away, it was Brett, Bev, 10 Kim, Brian, they came up in a pickup truck and a car. They 11 were allowed access into all of the buildings except the 12 house. I would not allow them in the house. 13 Q So they weren't -- 14 A They didn't ask to go in the house, I'll put 15 it that way. 16 MR. ROMINGER: The Court's indulgence for a 17 moment. lg THE COURT: Certainly. 19 MR. ROMINGER: No other questions. 20 THE COURT: Mr. Flower, anything further? 21 MR. FLOWER: No, Your Honor. Thank you. 22 THE COURT: All right. You may step down. 23 Thank you. 24 THE WITNESS: Thank you. 25 THE COURT: Anything -- any further evidence 25 to be presented? 2 MR. ROMINGER: Your Honor, I am just going to 3 call Brett Heckendorn for a limited purpose. 4 THE COURT: All right. 5 Whereupon, 6 BRETT HECKENDORN ~ having been duly sworn, testified as follows: 8 DIRECT EXAMINATION ' g BY MR. ROMINGER: 10 Q Your name and address for the record, sir? 11 A Brett Heckendorn, 12 Wren Street North, 12 Martinsburg, West Virginia. 13 Q One of your father's motorcycles is in your 14 possession? 15 A Right. 16 Q Where did you retrieve that from after he 17 died? lg A It was at the Hippensteels, and it was taken 19 to M and S Harley Davidson. That is where I picked it up 2 0 at . 21 THE COURT: I'm sorry. I didn't understand. 22 It was what? 23 THE WITNESS: It was repaired at M and S 24 Harley David son in Chambersburg, and that is where I picked 25 it up after it was repaired. 26 THE COURT: Okay. 2 BY MR. ROMINGE R: 3 Q And that motorcycle was not in the garage the 4 day that he passed away? 5 A No. 6 Q That was a bike he was riding? 7 A Yes. g MR. ROMINGER: No further questions. g MR. FLOWER: No questions, Your Honor. 10 THE COURT: You may step down. Thank you. 11 MR. ROMINGER: I have no other questions, 12 Your Honor. 13 THE COURT: Mr. Flower. 14 MR. FLOWER: No thank you, Your Honor. 15 THE COURT: Okay. Mr. Irwin, as I understand 16 it, the estate has no position on the issues here? 17 MR. IRWIN: Well, I don't think I am really 18 at liberty to have a position because I represent both sides 19 of the case. I have a position myself with some of the 20 issues, but I don't think it is in my place to present it. 21 THE COURT: Okay. Normally I would think 22 this kind of issue would arise when an account was filed and 23 the proposed schedule of distribution was made, but 24 apparently you are not in a position where your clients are 25 in agreement as to how the account should be filed so that 27 is why we are here. We will enter this order: 2 AND NOW, this 16th day of July, 2009, upon 3 consideration of the Petition for Declaratory Judgment 4 Pursuant To 42 Pa. C.S. Section 7535 (2) and (3), and llowin a hearing, the record is declared closed, and the 5 fo g 6 matter is taken under advisement. 7 (End of order . ) 8 THE COURT: Thank you. 9 (The proceedings concluded at 11:40 a.m.) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 28 CERTIFICATION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause, and that this is a correct transcript of same. Michele A. Eline Official Court Reporter The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. ~~~~~ Date J Wesley N' th Judi 1 District 29