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Home My WebLink About02-08-10IN RE: ESTATE OF ANITA M. : IN THE COURT OF COMMON PLEAS KISSINGER, DECEASED :CUMBERLAND COUNTY, PENNSYLVANIA DOCKET N0.21-08-0926 ORPHANS' COURT DIVISION JUANITA M. PANKO'S REPLY IN OPPOSITION TO EXECUTOR'S MOTION TO QUASH NOTICE TO PRODUCE fsicl AND NOW, comes Respondent, Juanita M. Panko (hereinafter "Ms. Panko"), by and through her counsel, Serratelli, Schiffman, Brown & Calhoon, P. C., and files her Reply in ,,~ ~ ° ~;~ A Opposition to the Motion to Quash filed on behalf of the Executor of the Estate ~ rta M'~ ~?',I =' ' -~ c~=n W ' ~ Kissinger, and in support thereof aver as follows: ~ "' x:~' T' ~ `-_z ~ ~._'_~ -, ~,-; ~? `~ ~ 1 Admitted ~ ,. . . -=> ~ ,ao ~~ 5 ~,-, 2. Admitted in part. As the Notice to Attend is a written document th`~~t speaks ~ -~' itself a copy of the Notice to Attend is attached hereto and is marked as Exhibit "A". By way of further reply, the documents identified in the Notice to Attend are the same documents that the undersigned counsel has been requesting be produced since June, 2009 (informally) and since October 9, 2009 (formally). 3. Denied. It is denied that the production of the requested documents should be "proscribed until the Court has determined whether the Petition for Interim Accounting will be granted." By way of further reply, as a named beneficiary of the Decedent's Estate, Ms. Panko is clearly entitled to review these records which she believes will further support the claims raised in both her Petition for Interim ' On February 3, 2010, Respondent served the Executor of the Estate with a Notice to Attend. Included in the Notice to Attend was a list of items that the Executor is to bring with him to Court. Accounting, as well as her Petition to Remove Lester Kissinger as the Executor of the Estate. See generally 20 Pa.C.S.A. § 3501.1. See also In re Megargel, 5 Monroe L.R. 65 (1943), affirmed 36 A.2d 319, 349 Pa. 14. Finally, without the benefit of these records the Court will not have the benefit of reviewing the Executor's records to see exactly how he has been spending the assets of the Decedent's Estate. Indeed, the documents that the Executor has been requested to bring with him to Court go to the very heart of the issues now before the Court. 4. Denied. It is denied that the "demand mere days before the hearing for the production is clearly intended to harass, inconvenience and impose an undue burden upon Mr. Kissinger." To the contrary, the documents identified in the Notice to Attend were initially requested to be produced by the undersigned counsel as earl~as October 9, 2009, as evidenced by the October 9, 20091etter attached hereto and marked as Exhibit "B". In response to this request, Attorney Connell advised the undersigned counsel that he would speak with his client to see whether or not he was authorized to provide this information, as evidenced by Mr. Connell's letter dated October 9, 2009 attached hereto and marked as Exhibit "C". No information was ever forthcoming- that is until December 31, 2009 when the Executor prepared a "list" of checks that he had allegedly written out of the Estate accounts and provided a copy of the same to Ms. Panko. The "accounting" recently provided by the Executor is not only self-serving but also violates the Best Evidence Rule. Ms. Panko believes and therefore avers that the actual bank records, statements, cancelled checks and invoices are the best evidence of the monies spent by the Executor to date and are presumably in the 2 immediate possession of Mr. Kissinger in his capacity as Executor of the Estate of Anita Kissinger and further in light of the fact that he presumably used this information to prepare the self-prepared accounting that he recently provide to Ms. Panko on or about December 31, 2009. 5. Denied. It is denied that the "demanded records go beyond the nature of the relief sought in the Petition for Interim Accounting." It is further denied that the only pleading scheduled to be heard by the Court on February 8, 2010 is the Petition for Interim Accounting. To the contrary, there are two Petitions, to wit: a Petition for Interim Accounting and a Petition to Remove Lester Kissinger as Executor of the Estate of Anita M. Kissinger. The Executor's management of the Decedent's funds, both immediately prior to her death and after her death go to the very heart of the issues before the Court, to wit: whether Mr. Kissinger has wrongfully used and/or misappropriated Estate assets and whether Mr. Kissinger has an irreconcilable conflict of interest such that he should be removed as the Executor of the Estate. 6. Denied. It is denied that there is any "fishing expedition" and that the documents that the Executor has been directed to bring to Court are "oppressive." It is further denied that the "focus is unrelated to the Petitions to be considered by the Court and the inquiry." To the contrary, there are two Petitions, to wit: a Petition for Interim Accounting and a Petition to Remove Lester Kissinger as Executor of the Estate of Anita M. Kissinger. The Executor's management of the Decedent's funds, both immediately prior to her death and after her death go to the very heart of the issues before the Court, to wit: whether Mr. Kissinger has wrongfully used and/or misappropriated Estate assets and whether Mr. Kissinger has an irreconcilable conflict of interest such that he should be removed as the Executor of the Estate. As previously stated herein, as a named beneficiary under the Decedent's Will, Ms. Panko has the right to request the production of this information. Despite her repeated and numerous requests through counsel for this information since at least October 9, 2009, Ms. Panko's requests have been refused. The fact that Mr. Kissinger continues to refuse to comply with the request for accounting and production of documents relative to the same only serves to strengthen the arguments raised by Ms. Panko in her Petitions for Interim Accounting and to Remove Lester Kissinger as Executor of the Estate. WHEREFORE, Respondent, Juanita M. Panko, respectfully requests that this Honorable Court deny the Motion to Quash, and further grant Respondent all such other relief as is proper and just. Respectfully submitted, Date: February 5, 2010 Paige Macdonald-Matthes, Esquire Pa. Attorney I.D. No. 66266 SERRATELLI, SCHIFFMAN, BROWN & CALHOON, P.C. 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 (717) 540-9170 Attorneys for Respondent, Juanita Panko 4 CERTIFICATE OF SERVICE I, Paige Macdonald-Matthes, Esquire, do hereby certify that on this 5th day of February 2010, I served a copy of Respondent's Reply in Opposition to Executor's Motion to Quash Notice to Produce [sic] via facsimile and United States Mail, First Class, postage pre-paid, to the following person(s): Richard E. Connell, Esquire BALL, MURREN & CONNELL 2303 Market Street Camp Hill, PA 17011 717-232-2142 Facsimile Attorney for Petitioner With Courtesy Copy to The Honorable Edward Guido Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 717-240-6462 Facsimile :c ~~~.~•o ~ ~.~.a~.o~.n~.~s2~ -~.1 t, a~~e , Paige Mac~onald-Matthes, Esquire 5 EXHIBIT A IN RE: ESTATE OF ANITA M. : IN THE COURT OF COMMON PLEAS KISSINGER, DECEASED :CUMBERLAND COUNTY, PENNSYLVANIA DOCKET N0.21-08-0926 ORPHANS' COURT DIVISION AMENDED NOTICE TO ATTEND TO: Lester Kissinger c/o Richard E. Connell, Esquire BALL, MURREN & CONNELL 2303 Market Street Camp Hill, PA 17011 You are directed to come to the Cumberland County Courthouse, Carlisle, Pennsylvania, before the Honorable Edward Guido, on Monday, February 8, 2010 at 9:30 A.M., to testify on behalf of Juanita M. Panko in the above case and remain until excused. You are further directed to bring with you copies of the following documents: (a) All check book registers for any and all bank accounts opened in the name of Lester G. Kissinger, Executor of the Estate of Anita M. Kissinger between September 5, 2008 and the present; (b) All check book registers for any and all bank accounts opened in the name of the Estate of Anita M. Kissinger, Deceased; (c) All check book registers for any and all bank accounts managed by Lester G. Kissinger on behalf of the Decedent, Anita M. Kissinger between May 1, 2008 and the present including but not limited to the Decedent's Member's 1st Account No. 273535-1 l; the Decedent's Members 1st Money Management account; the Decedent's Members 1St Checking account; and the Decedent's Members 1St Regular Savings account; (d) Copies of all bank statements issued by Members 1St Bank for the Decedent's Member's 1St Account No. 273535-11; the Decedent's Members lst Money Management account; the Decedent's Members 1St Checking account; and the Decedent's Members 1St Regular Savings account between May 1, 2008 and September 5, 2008; (e) Copies of all bank statements for the "Estate Checking Account" opened on or about September 15, 2008 by Lester Kissinger from funds transferred out of the Decedent's Members 1St Bank account on even date. (f) Copies of all checks issued on behalf the Estate of Anita Kissinger and made payable to Richard Connell, Esquire (or his law firm) and Dale Shughart, Esquire (or his law firm); (g) Copies of all checks issued on behalf of the Estate of Anita Kissinger and made payable to Lester Kissinger; (h) Copies of personal checks written by Lester Kissinger to Richard Connell, Esquire and/or Mr. Connell's firm; (i) Copies of all invoices for the litigation in the civil matter docketed in the Cumberland County Court of Common Pleas at Docket No. 09-2034 issued by Dale Shughart, Esquire to Lester Kissinger; (j) Copies of all invoices for legal services rendered by Richard Connell, Esquire and/or other members of his firm between May 2008 to the present to the following: 1. Estate of Anita Kissinger; 2. Lester Kissinger; and 3. Anita Kissinger. (k) Copies of personal checks written by Lester Kissinger to Dale Shughart, Esquire and/or Mr. Shughart's law firm. If you fail to attend and bring the requested documents as required by this Notice to Attend, you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure. Respectfully submitted, `Paige Macdonald-Matthes Attorney ID No. 66266 SERRATELLI, SCHIFFMAN, BROWN & CALHOON, P.C. 2080 Linglestown Road Harrisburg, PA 17110 (717) 540-9170 Date: February 3, 2010 Attorney for Juanita M. Panko October 9, 2009 PAIGE MACDONALD-MATTHES (717) 635-2922 FAX: (717) 635-2952 Va Facsimile and Regular Mail Richard E. Connell, Esquire Ball, Murren & Connell 2303 Mazket Street Camp Hill, PA 17011 Re: In Re: Estate o, f Anita M. Kissinger, Deceased Cumberland County C.C.P. Docket No. ZI-08-fI926 Our File No. 08-441 Dear Mr. Connell: I am in receipt of your letter dated October 7, 2049 in which you enclosed a copy of the Decedent's Inheritance Tax Return. pmacdonald-matthesQssbc-law.com Based on the information included in the Inheritance Tax return in general and specifically, page 2 of Schedule H, I am writing to request (for a second time) that you immediately provide me with an accounting of all attorneys fees incurred and paid to date regarding the "litigation" referred to in Schedule H of the tax return. Finally, I note that you have still failed to provide me with the information that I requested pursuant to the Petition for Inventory I filed on behalf of my client in regard to this matter, as well as the information I ~ ' ' ' ~ ~ ~ ' ' ' ' ~ requested in my letter to you dated August 11, 2009. Please provide this information immediately. Thank you for your anticipated cooperation in this matter. SUITE 201 2050 LINGLESTOWN ROAD HARRISBURG, PA 17110-9670 (717) 540-9170 FAx (717) 540-5481 Sincerely, SERRATELLI, SCHIFFMAN, BROWN & CALHOON, P.C. Paige Macdonald-Matches PMM/ cc: Juanita Panko °=