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HomeMy WebLinkAbout09-25-09 ~ ~© ~' wc~ ~:. Neil W. Yahn, Esquire r~ ~ ~ `~ ~ - m ~~~ '' ~ ~ '~' Attorney LD. No. 82278 LLP James Smith Dietterick & Connelly - ' ~> ~' m ` ~~ ~ t'.s r~=i ~~,~ crt ~: , P.O. Box 650 `_ -% C~ ~-~ ~' <~ ~ - =': .- . Hershey, PA 17036 ;y ~ ~ _ Attorneys for Intervener ~ ~ u~ i~=-- -- .. ~~ ` r IN RE: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ESTATE OF LINWOOD B. PHILLIPS, JR, : ORPHANS' COURT DIVISION Deceased NO. 21-06-0122 PETITION TO INTERVENE AND NOW comes, the intervener, ALICE R. PHILLIPS (herein "Intervener''), by and through her attorneys, JAMES, SMITH, DIETTERICK AND CONNELLY, LLP, who hereby sets forth this Petition to Intervene against the executor, ROBERT G. FREY (herein "Executor's of the Estate of Linwood B. Phillips, Jr. (herein the "Estate") and the claimant, HARVEY H. SHAPIRO (herein "Claimant"), as follows: 1. Linwood B. Phillips, Jr. (herein the "Decedent") died on February 2, 2006. 2. Intervener is the surviving spouse of the Decedent. 3. Following the Decedent's death, Intervener filed for her Elective Share pursuant to 20 Pa.C.S. § 2203. 4. Intervener remained in the marital home, located at 93 Encks Mill Road, Carlisle, Pennsylvania, until a settlement agreement was reached between Intervener and the Estate regarding the Elective Share, in October of 2008. 5. On or about October 23, 2008, Claimant sent a letter to Executor claiming that number of items of his personal property remained at the marital home (a true and correct copy of Claimant's October 23, 20081etter is attached and marked as Exhibit "A"). 6. The October 23, 2008 letter requests either the return of the enumerated items or an amount equal to their value, allegedly One Hundred Thousand Dollars ($100,000.00). 7. On or about July 24, 2009, Executor filed a Petition for Citation to Show Cause why Claimant's claim should not be dismissed (herein the "Pet~'h'on") (a true and correct copy of Executor's Petitioner is attached and marked as Exhibit "B") and contemporaneously, Intervener attempted to resolve the dispute over a substantial number of personalty that remained in the marital home after her departure. 8. In the Petition, Executor states, in sum, that Claimant has no cause of action against the Estate because the Estate is not in possession of Claimant's personal property. 9. The Petition further states that if Claimant has any cause of action at all, said claim should be made against Intervener for allegedly retaining Claimant's personal property upon her departure from the marital home. 10. On or about September 17, 2009, Claimant filed his Answer and Objections to the Petition (a true and correct copy of Claimant's Answer and Objections is attached and marked as Exhibit "C"). 11. Intervener now files this Petition to Intervene pursuant to Pennsylvania Rule of Civil Procedure 2327, which provides: "At any time during the pendency of an action, a person not a party thereto shall be permitted to intervene therein, subject to these rules if: (1) -2- the entry of a judgment in such action or the satisfaction of such judgment will impose any liability upon such person to indemnify in whole or in part the party against whom judgment maybe entered; or (2) such person is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof; or (3) such person could have joined as an original party in the action or could have been joined therein; or (4) the determination of such action may affect any legally enforceable interest of such person whether or not such person may be bound by a judgment in the action." 12. As such, it is proper for Intervener to participate in this action as a direct and proximate result of the allegations contained within the Petition that Intervener may have Claimant's personal property in her possession, and also the alleged offset taken against the settlement amount. 13. Any possible liability imposed on Intervener as a result of these allegations permits her to participate in this action pursuant to Pa. R.C.P. 2327(1). 14. Intervener avers that she does not have any of the items enumerated on Claimant's October 23, 2008 letter in her possession. 15. As such, Intervener concurs with the Executor that Claimant's cause of action is baseless and should be dismissed. WHEREFORE, pursuant to Pennsylvania Rule of Civil Procedure 2327, Intervener respectfully requests that this Honorable Court permit Intervener to participate in this action to prevent any exposure to liability resulting from Claimant's claim or offset from her settlement amount. -3- Respectfully submitted, Date: September 2 3 , 2009 By: JAMES, SMITH, DIETTERICK & CONNELLY, LLP ~l W. Yahn Attorney I.D. o. 82278 134 Sipe A nue stown, PA 1703 6 (717) 533-3280 Attorney for Intervener -4- VERIFICATION I, Alice R. Phillips, verify that the facts set forth in the foregoing document are true and correct to the best of my information, knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Date: y'' ~~ "' .Zyo~ Alice R. Phillips f..,. Harvey H. Shapiro 4004 Ti~indte i7d. (imp Hill PA 17011 1o.2~.aa Robert may, fir,, esq. Executor for the Estate of L. B. Phiiltps Frey and liley 5 South Hanover St. Carlisle pA 17013 Re: illegally held belongings pear Attorney trey; . Thts is to Gon~rm to you as executior for the estate of L.B. number of my belongings have been wrongly seised flour Ph~tilps that a great held at 93 Encks Mlll Road, Carlisle, the home of the fate L~ a~ are being illegally are to the main hauseR the multl-car stone B. Phillips. My beJongtngs building opposite ~e larger one. In add garage building, and ~ small garage idon, my trailer is being held on the drlVewa , Y The estate of LB. Phillips must Promptly return !I of b damaged or harmed, none Illegally sold or disposed ot,~ mY elongings to me, none The falfowtng list is NOT CQMpL~, but names vocal value of which 15 in excess of $iQO,pQQ, ~ ,marry of my belongings, thQ THE LIST IMP0I~TANT: THIS f.YST ZS VERY INCOMPLETE from Ray K's house: Very valuabis ardque display table From once area: Box of venetian glass Nikon dtg SLR camera and case Charger for battery for above Extra battery for above Items In leather back pack for above Computer stand bbfe Swivel chair Chess sit case; Kasparov Board (plastic, rolled) for chess set E00/ tQ0'd ~Z00~ Exhibit "A" Booklet that carne with set Big Box of many iightbulbs (less chandelier ones) Books in LB's office, esp treasury of great poems Moeorcycle tltle Current p~s5port {or frorn center dt~wer in bed Current computer brick and plug room} trackball mouse eXtBrtsipn multi-plug wine From Miss Lucy's murder room; Missing end Coif of large sensor of metal detector. Bookcase Barbell equipment: quite slot - at least 20 pieces Large round mesh outdoor table Marquetry table top - valuebJe . From room between kitchen and miss Items murder room: Brunswick tournament potil table, gold crown model. much other pool equipment including valuable cue and Lase. paintings b'y my grandmother, a recognized artist. sculptures and paintings by the mother, a recognized artist From bedroom: Seiko watcfi and band Snow and Newly axe acid guards - an ~ 80 item. ?7 Snow and Nea1y maul -- an $ 80 item From bedroom bathroom: canvas case for AK 47, new ~9s of medication samplQS (medlcatioris are L, E and R From hall bathroom: Shaver charger From cat room between garage and kitchen: Small rt'eadr11J11 From garage in house: Air compressor Wrenches for oil filters {about 4 or 5') dugs of motor. oil Other tools several) dog Cage Strong Car jack From i car garage below summer house ~. £00/ Z00'd LZ00~ HS'Itt3H ~n~s~~as ar~~rn•s~*~ ~...-- --• r ,.. r ~'~~ Railroad .jack 3 mechanics tool pses full of tools Large drii! press Yabie saw Many boxes of fastener McChBniCs and carpenter's work table 4 heavy large ~Olboxes, only one not full From large ~ - 4 car garage: large band saw Small table top drjll press Router to ble Chop saw Others definitely in this locadon From driveway; trailer licensed to me THIS LIST IS INCOMPLETE I will expect to hear from you promptly Ire this Important matter. ~~N, ~/ ~. /~~~ Marvey H. Shapiro E00/ E00'd LZ00# H,~'I~f~H WA'~Z~SdS 17UL I , Fi'I7.T.~'A7/T/ TCt7'r onny•e+~•r•,n F:'.FILES\Climts\11145 Frey Tiley\11145.2.dareel ~' Created: 9120/04 0:06PM Revised: 7/24/09 0:04PM George B. Faller, Jr., Esquire I.D. No. 49813 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Executor of the Estate of Linwood B. Phillips, Jr. IN RE: IN THE COURT OF COMMON PLEAS OF ESTATE OF LINWOOD B. PHILLIPS, JR.,: CUMBERLAND COUNTY, PENNSYLVANIA NO.21-06-0122 ORPHANS' COURT DIVISION DECREE AND NOW, this. day of July, 2009, the within Petition having been presented, read, considered and ordered to be filed, it is hereby ordered and decreed that a citation is hereby awarded, directed to Harvey H. Shapiro, to show cause why the Petition to Dismiss his claim against the Estate of Linwood B. Phillips, Jr., should not be granted and the aforementioned claim against the Estate of Linwood B. Phillips, Jr., be dismissed with prejudice. The aforesaid citation shall be returnable at a hearing that shall be held upon the within Petition. Said hearing shall be held in the Cumberland County Courthouse on Friday, September 18, 2009, at 9:00 a.m., in the Fifth Floor Hearing Room. Harvey H. Shapiro is hereby ordered to appear and present testimony and evidence in support of any claim which he may have against the Estate of Linwood B. Phillips, Jr., or such claims shall be dismissed with prejudice. This Decree/Citation shall be personally served upon Harvey H. Shapiro by Petitioner. BY THE COURT, J. ~~~i1n/a F:\FILES\C6ents\11145 Frey TileyU 1145.2.petitiontosJ~t ousel ~ Created: 9/20/04 0:06PM ( /~` . Revised: 7/15/09 11:28AM { _ George B. Faller Jr., Esquire ~ c .-~~ c.13- hJ _~ c_ _T'7 r~~ ':~~ LD. No. 49813 v -~; ~ ~.- ~ c,~~ > . MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER c~=° ~~, r`n ~,' _ , , ~ ~ ' ' ` ' MARTSON LAW OFFICES `~~~~ ~ ~ -v ~ ~"~ :` ~~:? . 10 East High Street `^' ~ ~` ` ; .: Carlisle, PA 17013 -z, -~ •• t: ' ` , - (717) 243-3341 ~,,,,, ~ ~ ~ ,-~~ _ z ~ Attorneys for Executor of the Estate of Linwood B. Phillips, Jr. IN RE: IN THE COURT OF COMMON PLEAS OF ESTATE OF LINWOOD B. PHILLIPS, JR.,: CUMBERLAND COUNTY, PENNSYLVANIA N0.21-06-0122 ORPHANS' COURT DIVISION PETITION FOR CITATION TO SHOW CAUSE WHY CLAIM OF HARVEY SHAPIRO SHOULD NOT BE DISMISSED TO: The Honorable Joseph E. Rehkamp, specially sitting Senior Judge of the Orphans' Court of Cumberland County, Pennsylvania. AND NOW, comes the Petitioner Robert G. Frey, Executor of the Estate of Linwood B. Phillips, Jr., hereby requests this Honorable Court to issue a citation in the above matter directed to Harvey H. Shapiro to show cause why any and all claims which he has against the Estate of Linwood B. Phillips, Jr., be dismissed with prejudice. 1. The above-named decedent, Linwood B. Phillips, Jr., died testate on February 2, 2006. 2. On or about February 8, 2006, Robert G. Frey, was duly appointed the Executor of the Decedent's Estate and letters testamentary were issued to Your Petitioner. 3. At the time of Decedent's death, Decedent was married to Alice R. Phillips. 4. Despite a prenuptial agreement, Alice R. Phillips, filed for an elective share of the Estate challenging the validity of the prenuptial agreement. 5. During the time of the ongoing controversy between the Executor of the Estate and Alice R. Phillips, Alice R. Phillips continued to reside in the marital home of Linwood B. Phillips, Jr., located at 93 Encks Mill Road, Carlisle, Cumberland County, Pennsylvania. 6. Your Executor has been presented with a claim by an adult individual, Harvey H. Shapiro, claiming that he left various personal property in the marital home known as 93 Encks Mill Road, Carlisle, Cumberland County, Pennsylvania. (A copy of that claim is hereby attached as Exhibit "A.") 7. Alice R. Phillips has since vacated the property and it does not appear that any of the property claimed by Harvey H. Shapiro remains at the marital residence. 8. Your Executor believes that Mr. Shapiro has no basis to make a claim against the Estate. Even if there is any truth to the allegations set forth in Mr. Shapiro's letter and exhibits, such claims would be properly made against Alice R. Phillips, not the Estate of Linwood B. Phillips, Jr. WHEREFORE, Your Petitioner requests that this Honorable Court issue a decree awarding a citation against Harvey H. Shapiro to show cause why his claim against the Estate of Linwood B. Phillips, Jr., should not be dismissed. MARTSON LAW OFFICES By / JGO' (~ Geor~e .Fall , Jr., Esquire LD. No. 49813 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date: '', a ~ ~~ Attorneys for Robert G. Frey, Executor of the Estate of Linwood B. Phillips, Jr. VERIFICATION The foregoing Petition is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language of the document is that of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the document is that of counsel, I have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities, which provides that if I make knowingly false averments, I may be subject to criminal penalties. Robert G. Frey Executor of the Estate of Linwood B, hillips, Jr. F:~FILES\Clients\11145 FreyTiky\11145.2.petitiontoshowcausel . r ( ~,., CERTIFICATE OF SERVICE I, Melissa A. Scholly, an authorized agent of Martson Law Offices, hereby certify that a copy of the foregoing Petition was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Neil W. Yahn, Esquire James Smith Dietterick & Connelly, LLP P.O. Box 650 Hershey, PA 17036 Hubert X. Gilroy, Esquire MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 MARTSON LAW OFFICES By Melissa A. Scholly Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: `] I a~{ ~~ Jeffrey R. Boswell, Esquire Supreme Court I.D. #25444 BOSWELL, TINTNER & PICCOLA 315 North Front Street P. O. Box 741 Harrisburg, Pennsylvania 17108-0741 Phone (717-236-9377) Fax (717-236-9316) E-mail (jboswell(a~btpalaw.com) IN RE: ESTATE OF LINWOOD B. PHILLIPS, JR. IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNSYLVANIA NO. 21-06-0122 ORPHANS' COURT DIVISION CLAIMANT'S ANSWER AND OBJECTIONS TO PETITION FOR CITATION TO SHOW CAUSE WHY CLAIM OF HARVEY SHAPIRO SHOULD NOT BE DISMISSED AND NOW, comes Harvey H. Shapiro (referred to herein as "Claimant"), by his counsel, Jeffrey R. Boswell, Esquire, Boswell, Tintner & Piccola, and makes this Claimant's Answer and Objections to the Petition for Citation to Show Cause Why Claim of Harvey Shapiro Should Not Be Dismissed, as set forth, as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. By further answer, Claimant alleges that he was deprived of his personal property that he last saw on the Estate's real property, not only in the marital home, but also on the grounds and in the garages and, therefore, in the custody of the Estate's Executor, Robert G. Frey. 7. Denied. Whereas Claimant believes Alice R. Phillips has personally vacated the Estate's real property, Claimant believes, and therefore alleges, that some or all of the Claimant's personal property remains on the Estate's real property, and, thus, Claimant demands proof of the allegation at a hearing on this matter. 8. Denied. Claimant alleges Robert G. Frey, Executor of the Estate of Linwood B. Phillips, Jr., had knowledge of the Claimant's physical presence of himself and his personal property at the marital home and garages and surrounding grounds of the Estate's real property, and, therefore, demands proof of this allegation at a hearing on this matter. OBJECTIONS 9. Claimant incorporates the answers contained in paragraph 1 through 8 without restating same. 10. Claimant last saw his personal property on the Estate's real property in the marital home, the garages, and the grounds, as delineated on the list contained in Claimant's letter to Robert G. Frey, the Executor, dated October 23, 2008, which is attached to the Petition as Exhibit "A." 11. Robert G. Frey, the Executor, had control of the Estate's real property at 93 Encks Mill Road, Carlisle, where Claimant's property lay, in the marital home of the decedent, the. multi-car stone garage building, and the small garage, and on the grounds surrounding these buildings. 12. The Claimant had numerous conversations with Robert G. Frey, the Executor, concerning Claimant's personal property and his recovery of that personal property. 13. Robert G. Frey, the Executor, encouraged the Claimant to file a claim against the Estate with regard to Claimant's personal property. 14. Claimant made written confirmation of his claim by sending a letter to Robert G. Frey, the Executor, which October 23, 2008, letter is attached to the Petition as Exhibit "A." 15. Claimant has recovered his antique display table referenced on page 1 of the October 23, 2008, letter to Robert G. Frey, the Executor. 16. Robert G. Frey, the Executor, was aware of the presence of specific items of personal property, including, but not limited to, the pool table in a dismantled condition, in the marital house. 17. Robert G. Frey, the Executor, personally viewed Claimant's personal property, as he acknowledged same in a discussion with Claimant after walking through the marital house and the surrounding grounds with decedent's daughter, Linda Stull. 18. Claimant moved his personal property to the Estate's property, including the marital home, the large garage, the small garage, and the surrounding grounds, in March, 2008, and, thereafter, Claimant informed Robert G. Frey, the Executor, of the presence of Claimant's personal property on the Estate's real property. 19. After being informed of the presence of Claimant's personal property on the Estate's real property, Robert G. Frey, the Executor, had an obligation to protect Claimant's personal property from theft, waste, mischief, and damage. 20. Robert G. Frey, the Executor, never objected to the presence of Claimant's personal property on the Estate's real property. 21. Robert G. Frey, the Executor, was aware of claims made by Alice R. Phillips, the decedent's surviving spouse, against the Estate and, thus, should have, but did not take actions to protect Claimant's personal property from Alice R. Phillips' actions to control, to damage, and to deprive Claimant of his personal property, even though Robert G. Frey, the Executor, had notice of risks posed to Claimant's personal property by decedent's surviving spouse. 22. Claimant alleges that the replacement value of the personal property as to which he has been deprived by the Executor's actions or non-actions, does not exceed $100,000.00. 23. Robert G. Frey, the Executor, failed to provide access to the Estate's real property for the Claimant to regain possession and to remove his personal property from the Estate's real property. WHEREFORE, the Claimant prays that the Court order Robert G. Frey, the Executor, and the Estate of Linwood B. Phillips, Jr., to return Claimant's personal property or to pay the Claimant the replacement cost, a sum not to exceed $100,000.00. Respectfully submitted, BOSWELL, TINTNER & PICCOLA By: ~.._, J R. Boswell, Esquire I . D. No. 25444 315 N. Front Street P. O. Box 741 Harrisburg, PA 17108-0741 (717) 236-9377 Attorneys for Harvey H. Shapiro Date: September 17, 2009 VERIFICATfON I, Jeffrey R. Boswell, Esquire, being duly sworn according to law, deposes and says that he is the attorney for the Claimant, Harvey H. Shapiro, that said Claimant cannot make .the verification to the foregoing Claimant's Answer and Objections to Petition for Citation to Show Cause Why Claim of Harvey Shapiro Should Not Be Dismissed due to time constraints, and .that the facts set forth in the foregoing Answer are true and correct upon representations made by the Claimant based on Claimaint's personal knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. ~. Jeffrey R. oswell, Esquire Dated: September 17, 2009 CERTIFICATE OF SERVICE I do hereby certify that I have served a true and correct copy of the foregoing Claimant's Answer and Objections for Citation to Show Cause Why Claim of Harvey Shapiro Should Not Be Dismissed by placing the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: George B. Faller, Jr., Esquire Manson Deardorff Williams Otto Gilroy & Faller Manson Law Offices 10 East High Street Carlisle, PA 17013 Attorneys for the Executor and the Estate of Linwood 8. Phillips, Jr. Hubert X. Gilroy, Esquire Manson Deardorff Williams Otto Gilroy & Faller Manson Law Offices 10 East High Street Carlisle, PA 17013 Attorney for Linda Stull Neil W. Yahn, Esquire James Smith Dietterick & Connelly, LLP P. O. Box 650 Hershey, PA 17036 Attorneys for Alice R. Phillips Robert G. Frey, Esquire 5 S. Hanover Street Carlisle, PA 17013-3307 Executor of the Estate of Linwood 8. Phillips, Jr. Jeffre .Boswell, Esquire Dated: September 17, 2009 CERTIFICATE OF SERVICE I, NEIL WARNER YARN, Esquire, do hereby certify that I served a true and correct copy of the foregoing Petition to Intervene upon the following below-named individuals by placing the same in the United States Mail, first class, postage prepaid, at Hershey, Pennsylvania, this Z3 day of September, 2009. SERVED UPON: George B. Faller, Jr., Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 Attorneys for the Estate of Linwood B. Phillips, Jr. Hubert X. Gilroy, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 Attorneys for Linda Stull Robert G. Frey, Esquire 5 S. Hanover Street Carlisle, PA 17013-3307 Executor for the Estate of Linwood B. Phillips, Jr. Jeffrey R. Boswell, Esquire Boswell, Tintner & Piccola 315 North Front Street P.O. Box 741 Harrisburg, PA 17108 Attorneys for Claimant ER YAHN, ESQUIRE #82278