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HomeMy WebLinkAbout10-2371I RO>r 09 2010 11:41RM Boyle, Neblett & Wenger 717 737 2452 p.2 BOYLE, NEHLETT & WENGER Dennis E. Boyle, Esquire Supreme Court I.D. No. 49618 4660 Trindle Road, Suite 200 Camp Hill, PA 17011 Phone; (717) 737-2430 Facsimile: (717) 737-2452 Email: de le &dennisboY1elsw.com ESTATE OF LOUISE I. KAPP by and through the Executrix, HELEN E. DANK, Plaintiff V. ALLSTATE LIFE INSURANCE COMPANY and KATHLEEN GILBERT, Defendants j 1; iT _ t_ F*1 i h ?lOf;r Fil p: ? J Counsel For; Estate of Louise 1. Kapp IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL ACTION -LAW JURY TRIAL DEMANDED You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attomey and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a j udgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff, You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHOI E THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. BOYLE, NEBLETT & WENGER Dennis E. Boyle, Esquire Supreme Court I.D. No. 49618 John P. Neblett, Esquire Supreme Court I.D. No. 80036 Randall L. Wenger, Esquire Supreme Court I.D. No. 86537 4660 Trindle Road, Suite 200 Camp Hill, PA 17011 Phone: (717) 737-2430 Facsimile: (717) 737-2452 Email: deboyle(i6dennisboylelaw.com jpn(a neblettlaw.com rlwenger(iNennisboylelaw.com ESTATE OF LOUISE I. KAPP by and through the Executrix, HELEN E. RANK, Plaintiff V. ALLSTATE LIFE INSURANCE COMPANY and KATHLEEN GILBERT, Defendants Counsel For: Estate of Louise I. Kapp : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. fQ ?3-7 CIVIL ACTION - EQUITY : JURY TRIAL DEMANDED COMPLAINT AND NOW comes the Executrix, Helen E. Rank, by and through her counsel, Dennis E. Boyle, Esquire, John P. Neblett, Esquire, Randall L. Wenger, Esquire, and the firm of Boyle, Neblett & Wenger, and makes the within Complaint against Kathleen Gilbert and Allstate Life Insurance Company, and avers as follows: 1. Helen E. Rank is the sister of Louise I. Kapp, who died testate on January 28, 2010. 2. On or about February 4, 2010, pursuant to the Will of the late Louise I. Kapp, the Register of Wills of Cumberland County appointed Mrs. Rank as the Executrix of the Estate of Louise I. Kapp. A copy of the Certificate of Grant of Letters is attached hereto as Exhibit "A". 3. The Defendant, Kathleen (Marbach) Gilbert, is an adult individual currently residing at 231 Bosler Avenue, Lemoyne, Cumberland County, Pennsylvania. 4. The Defendant, Allstate Life Insurance Company, is a corporation with its principal offices located at 2775 Sanders Road, Northbrook, Illinois 60062. Allstate Life Insurance Company currently holds an annuity in the amount of $430,478.25, the proper person to receive these funds being in dispute. 5. Louise I. Kapp, during all of her adult life, resided with her husband, Marlet R. Kapp, until his death in 2003. 6. Throughout her life, Mrs. Kapp relied upon her husband, Marlet, to make all financial decisions and to manage the finances of the family. Because of her lack of financial sophistication, Mrs. Kapp was forced to rely upon others for financial advice. 7. While her husband was still alive, Mr. and Mrs. Kapp maintained a number of different bank accounts in a number of banking institutions. These accounts were normally savings accounts that returned a fixed interest rate. The exact amount of funds held in this manner is not precisely known, but is believed to have exceeded $500,000.00. 8. By 2004, Mrs. Kapp was in a severely weakened mental state due to the loss of her husband after a lifetime of marriage, the onset of dementia, and advanced old age. 2 9. At the time of her husband's death, Mrs. Kapp did not know what a bank statements was, where financial paperwork was kept, how to review her mail, or know how to write a check. 10. It was about this time or earlier that Mrs. Kapp became acquainted with the Defendant, Kathleen (Marbach) Gilbert, who was a neighbor. 11. Because of Mrs. Kapp's debilitated state, she paid Ms. Gilbert to go through her mail, write her checks, and take care of her finances. 12. Mrs. Kapp believed that she did not need to take care of anything. Ms. Gilbert used Mrs. Kapp's reliance on her to benefit herself rather than Mrs. Kapp. 13. Ms. Gilbert also had Mrs. Kapp close nearly all of her bank accounts and used a portion of those funds to purchase an "Allstate Advantage Plus Annuity" in January of 2005 and to add to that annuity over time. Ms. Gilbert then took further advantage of Mrs. Kapp by having her designate "Kathleen Marbach", identified as "friend/POA" as the sole beneficiary of the annuity. A copy of said application is attached hereto as Exhibit "B". 14. At the time the annuity was purchased, Mrs. Kapp did not understand what an annuity was. When additional funds were transferred, she thought that she was transferring them to a bank account. She had no idea that what she understood as a bank account had a beneficiary separate from what was in her will. 15. Mrs. Kapp had executed a Will on January 9, 2004, a copy of which is attached hereto as Exhibit "C". The Will provided that her estate would be left to her relatives. It is believed that Mrs. Kapp intended for her entire estate, including the funds in the annuity, to be distributed in accordance with her Will. 3 16. After the annuity was purchased, Ms. Gilbert took control of all of Mrs. Kapp's financial records and prevented other family members, including the Plaintiff, from having knowledge of financial transactions. 17. It was only by accident, around the time of Mrs. Kapp's death, that Mrs. Kapp's family discovered the existence of an annuity. 18. Ms. Gilbert first denied knowledge about her status as beneficiary of the annuity and said she would give the family the proceeds and then offered to give Helen Rank, the Executrix, half. Helen declined, claiming that it should be split equally with the family members. 19. Ms. Gilbert still tried to execute paperwork as Power of Attorney to give 25% to Helen Rank, without Mrs. Rank's knowledge or consent. 20. From the time of her husband's death, Mrs. Kapp was confused about many things. She would not only repeat her conversations, but repeat the messages she left on answering machines multiple times. She lost her understanding of time, often failing to realize even the approximate time of day or the day of the week. She stopped caring for herself and would put dirty dishes in the refrigerator and cupboards rather than in the dishwasher. 21. Defendant Gilbert was in a confidential and/or fiduciary relationship with Mrs. Kapp. 22. Defendant Gilbert exercised undue influence over Mrs. Kapp, causing her to designate her as a beneficiary of an annuity valued at $430,478.25. 23. Defendant Gilbert diverted funds belonging to Mrs. Kapp for her own use. 24. Following Mrs. Kapp's death, Defendant Gilbert entered Mrs. Kapp's home and removed jewelry and other personal property of the Estate of Louise I. Kapp. 4 COUNT I Breach of Fiduciary p& 25. The preceding paragraphs are incorporated by reference as if fully restated herein. 26. Defendant Gilbert owed a fiduciary duty to Louise I. Kapp due to Mrs. Kapp paying her to act on her behalf. 27. Defendant Gilbert breached the fiduciary duty she owed to Louise I. Kapp by placing her own interests over the interests of Mrs. Kapp to the detriment of Mrs. Kapp and her estate. WHEREFORE, Helen E. Rank, Executrix of the Estate of Louise I. Kapp, respectfully requests that this Court: A. Temporarily and permanently enjoin Allstate Life Insurance Company from paying any funds to Defendant, Kathleen (Marbach) Gilbert; B. Direct that Allstate Life Insurance Company pay all amounts due under the annuity contract to the Estate of Louise I. Kapp; C. Enter judgment in favor of the Estate of Louise I. Kapp in an amount to be determined; D. Award the Estate of Louise I. Kapp reasonable attorney fees, the costs of suit, and punitive damages; and, E. Grant such other relief as the Court deems necessary and proper. 5 COUNT II Undue Influence 28. The preceding paragraphs are incorporated by reference as if fully restated herein. 29. Defendant Gilbert was the dominant party in a confidential relationship with Louise 1. Kapp. 30. Defendant Gilbert acted as Mrs. Kapp's Power of Attorney and made financial decisions for Mrs. Kapp. 31. Defendant Gilbert placed herself in a position where she could take advantage of Mrs. Kapp. 32. Defendant Gilbert in fact took advantage of Mrs. Kapp, her weakened mental state, and her complete reliance in order to attempt to obtain $430,478.25 for her own use. WHEREFORE, Helen E. Rank, Executrix of the Estate of Louise I. Kapp, respectfully requests that this Court: A. Temporarily and permanently enjoin Allstate Life Insurance Company from paying any funds to Defendant, Kathleen (Marbach) Gilbert; B. Direct that Allstate Life Insurance Company pay all amounts due under the annuity contract to the Estate of Louise I. Kapp; C. Enter judgment in favor of the Estate of Louise I. Kapp in an amount to be determined; D. Award the Estate of Louise I. Kapp reasonable attorney fees, the costs of suit, and punitive damages; and, 6 E. Grant such other relief as the Court deems necessary and proper. COUNT III Unjust Enrichment 33. The preceding paragraphs are incorporated by reference as if fully restated herein. 34. Defendant Gilbert had Mrs. Kapp sign paperwork that ultimately named her the beneficiary of an annuity which she had Mrs. Kapp fund. 35. Defendant Gilbert should not benefit from that annuity because Mrs. Kapp did not realize that she was benefitting Defendant Gilbert in this way. 36. Defendant Gilbert did not give Mrs. Kapp value equivalent to the benefit Defendant Gilbert retained. 37. It would be inequitable and unjust for Defendant Gilbert to retain this benefit. WHEREFORE, Helen E. Rank, Executrix of the Estate of Louise I. Kapp, respectfully requests that this Court: A. Temporarily and permanently enjoin Allstate Life Insurance Company from paying any funds to Defendant, Kathleen (Marbach) Gilbert; B. Direct that Allstate Life Insurance Company pay all amounts due under the annuity contract to the Estate of Louise I. Kapp; C. Enter judgment in favor of the Estate of Louise I. Kapp in an amount to be determined; 7 D. Award the Estate of Louise I. Kapp reasonable attorney fees, the costs of suit, and punitive damages; and, E. Grant such other relief as the Court deems necessary and proper. BOYLE, NEBLETT & WENGER r? Dennis E. Boyle, Esquire Supreme Court I.D. No. 49618 John P. Neblett, Esquire Supreme Court I.D. No. 80036 Randall L. Wenger, Esquire Supreme Court I.D. No. 86537 4660 Trindle Road, Suite 200 Camp Hill, PA 17011 Phone: (717) 737-2430 Fax: (717) 737-2452 Email: deboylegdennisboylelaw.com j,in a,neblettlaw.com rlwen ergdennisboylelaw.com Dated: April 6, 2010 8 Verification Subject to 18 P.S. § 4904, relating to unsworn falsifications to authorities, I, Helen E. Rank, state that I have reviewed the foregoing Complaint, and the allegations contained therein are true and correct to the best of my personal knowledge, information and belief. Dated: ?d ?? z Helen E. Rank Executrix of the Estate of Louise Kapp 9 EXgIBIT ?? A?? R GISTER OF WILLS C MBERLAND COUNTY P NNSYLVANIA CERTIFICATE OF GRANT OF LETTERS No. 2010- 00114 PA No. 21-10-0114 Estate Of : LOUISE I KAPP (First, Middle, Last) Late Of: LEMOYNE BOROUGH CUMBERLAND COUNTY Deceased Social Security No : 174-20-5184 WHEREAS, on the 4th day of February 2010 an instrument dated January 9th 2004 was admitted to probate as the last will of L UISE l KAPP 'First, Middle, Last/ 1 to of LEMOYNE BOROUGH, CUMBERLAND County, who died on the 28th day of January 2010 and, WHEREAS, a true copy of the will as probated is annexed hereto. THEREFORE, I, GLENDA FARNER STRASBAUGH , Register of Wills in and for CUMBERLAND County, in the Commonwealth of Pennsylvania, hereby certify that I have this day granted Letters TESTAMENTARY to: HELEN E RANK w o has duly qualified as EXECUTOR(RIX) and has agreed to administer the estate according to law, all of which f illy appears of record in my office at CUMBERLAND COUNTY COURTHOUSE, ARL/SLE, PENNSYL VA NIA. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal o my office on the 4th day of February 20 **NOTE** ALL NAMES ABOVE APPEAR (FIRST, MIDDLE, LAST) EXKIBIT (slow I eat or ellthy.:ll:v?itl h tleneAt doe r tsetieriaerlee w oe++irecl. Name TO, , `fig (S-mop pc PAGE el . I M FOR THE Ausiame AnwAKu it Plus Afafaum? gets We. Iftyramm Company • 29110 s a4th Street, Lkwoln: Natraeks Una-4142.800-?5. OV75 eyabls to. Alfa m Liao" at+aue nos Cwr4t w 901"s 0 M 18.F Blvd Soo Sac. NOAIN "L.geng &* rV _mo C M3 Phano No. -9/ 7- ?? 7F Narna OM OF BlrthdKs / / Sanwa Address Soo soa NomN C11y state .....-Zip Phone Na Ara ail Oral O1 / ioltant wld Banaildarypel) U1 Calme sptl?ft O No a nq bt name and QpX t of eadl In Sp 0 lasnuctl M 2. Owner Type S Indiwfuel 0 Non arorttw TNA O I04porata/Aawdidon O Tax Exampt/NMI'milt Orgeniration 0 Minor O ftrtn*mhip0 GrantorTnof 0 Custodial Account O Omer 3. AMIUR" Nome OM OF Birthdate / i Laeva blank q MAMMA Is this samh as we t)wnar Stfaet SOC. 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Tbt tatter tv Wm sat sod Mt wwonet twmpttry WIN k qk foul ovoolty for product Retorts. I (vie) NOW vomwltdotreeerpt of this sdutovlcdptaot end dadownr; troth ortlllr and In W" end vtfWV tht toxfmy of do InlbrmrJ M con *LW tbm. ' rr wee I s S~ e Pow "AwDow nu t7ieMY R am May Lose Wue I = •N? Bat* G wand e . I'L AQ FMI113taacat Nor-AptrklrlfMCt Nile rc ttdaF.W • oant t EXHIBIT (9 (D c I LAST WILL AND TESTAMENT OF LOUISE I. KAPP I, LOUISE I. KAPP, now domiciled in Cumberland County, Pennsylvania, declare this to be my Last Will and Testament. I revoke all other wills and codicils that I may have previously made. Article I I My just debts and expenses of my last illness, funeral, and administration of my estate shall be paid by my Executor from the principal of my residuary estate as soon as practicable after my death. Article II All inheritance, estate, and succession taxes (including interest and penalties thereon, but not including any generation skipping tax) payable by reason of my death shall be paid out of and be charged generally against the principal of my residuary estate without reimbursement from any person. This provision is not a waiver of any right which my Executor has to claim reimbursement for any such taxes which become payable as the result of any property over which I have the power of appointment. c? ?p ° ?.J { -p M f ca Cry AF t r;trr C i C7 ? =C -r. © an Article III I give, devise and bequeath in accordance with any memorandum which I have either handwritten or signed, located with my will or with my valuable papers and found within 30 days of the probate of my will. Gifts may only be to persons who survive me or to organizations which exist at my death, and if there is a conflict, the memorandum having the latest date shall govern. Article IV All the rest, residue,,and remainder of my estate, of whatsoever nature and wheresoever situate, I give, devise and bequeath according to the following schedule: A. ONE-EIGHTH (1/8) to my brother, CHARLES A. IERLEY, of Dauphin County, Pennsylvania. If CHARLES A. IERLEY predeceases me or fails to survive me by thirty (30) days, then I give, devise and bequeath the share he would have received to his wife, DORIS IERLEY; B. ONE-EIGHTH (1/8) to my brother, SAMUEL F. IERLEY, JR. of Cumberland County, Pennsylvania. If SAMUEL F. IERLEY, JR. predeceases me or fails to survive me by thirty (30) days, then I give, devise and bequeath the share he would have received to his wife, MARILYN IERLEY; C. ONE-EIGHTH (1/8) to my sister, MARGARET M. BEMESDERFER, of Mountville, Pennsylvania. If MARGARET M. BEMESDERFER predeceases me or fails to survive me by thirty (30) days, then I give, devise and bequeath the share she would have received to her son, JAMES BEMESDERFER, of Mountville, Pennsylvania; D. ONE-EIGHTH (1/8) to my sister, HELEN E. RANK, of Dauphin County, Pennsylvania. If HELEN E. RANK predeceases me or fails to survive me by thirty (30) days, then I give, devise and bequeath the share she would have received to her son, WAYNE RANK, of Dauphin County, Pennsylvania; E. ONE-EIGHTH (1/8) to my sister-in-law, EVELYN WRIGHTSTONE, of Shiremanstown, Pennsylvania; F. ONE-EIGHTH (1/8) to my brother-in-law, EUGENE C. KAPP, of Cumberland County, Pennsylvania; G. ONE-EIGHTH (1/8) to my sister-in-law, DORIS MUSSER, of Cumberland r, County, Pennsylvania; H. ONE-EIGHTH (1/8) to my sister-in-law, MARYANN GINGRICH, of Fairfield Glade, Tennessee. If one of the beneficiaries named in this article predeceases me or fails to survive me by thirty (30) days, I give, devise and bequeath the share he/she would have received to the remaining named beneficiary(ies) in this article who survives me by thirty (30) days, PER CAPITA, NOT PER STIRPES. Article V I nominate, constitute, and appoint my sister, HELEN E. RANK, as Executrix of my Last Will and Testament. In the event of the renunciation, death, or inability to act, for any reason whatsoever of my Executrix, I nominate, constitute and appoint my friend, KATHLEEN M. MARBACH, of Cumberland County, Pennsylvania as successor Executrix of my Last Will and Testament. I direct that my Executrix or successor Executrix be permitted to serve without bond and -3- in addition to those powers granted by law, I grant them power to distribute in cash or in kind in like or in unlike shares and to file any qualified disclaimer I could have filed if living. My Executrix or successor Executrix shall receive reasonable compensation for services rendered to my estate. Article VI In addition to the powers conferred by law, I authorize my Executrix and successor Executrix, in her absolute discretion: (a) to retain in the form received and to sell either at public or private sale, any real estate or personal property except that which I specifically bequeath herein, (b) to manage real estate, (c) to invest and reinvest in all forms of property without being confined to legal investments, and without regard to the principal of diversification, (d) to exercise any option or right arising from the ownership of investments, (e) to compromise claims without court approval and without consent of any beneficiary, (f) to file any federal income tax return for any year for which I have not filed such return prior to my death, (g) to make distributions in cash or in kind, or in both, and to determine the value of any such property, (h) to employ any attorney, investment advisor, or other agent deemed necessary by my Executor; and to pay from my estate reasonable compensation for all their services, (i) to conduct alone or with others, any business in which I am engaged in, or have an -4- interest in at time of my death, and 0) to receive reasonable compensation in accordance with their standard schedule of fees in effect while their services are performed. IN WITNESS WHEREOF, I, LOUISE I. KAPP, hereby set my hand to this my Last Will and Testament, on z 7 2004, at Harrisburg, Pennsylvania. LOUISE I. KAPP In our presence, the above-named LOUISE I. KAPP signed this and declared this to be her Last Will and Testament and now at her request, in her presence, and in the presence of each other, we sign as witnesses. Name Address 1.1167 -5- I, LOUISE I. KAPP, Testatrix, who signed the foregoing instrument, having been duly qualified according to law, acknowledge that I signed and executed this instrument as my Will, and that I signed it willingly as my free and voluntary act for the purposes therein expressed. Sworn to or affirmed and acknowledged before me by LOUISE I. KAPP, the Testatrix on /-, f 2004. NPublic ;"t LOUISE I. KAPP MMIM FCDWMWON BROWN NOTARY P OL1C Low V DES 29, We, the undersigned witnesses who signed the foregoing instrument, being duly qualified according to law, depose and say that we were present and saw the Testatrix sign and execute this instrument as her Will; that she signed and executed it willingly as her free and voluntary act for the purposes therein expressed; that each of us in her sight and hearing signed the Will as witnesses, and that to the best of our knowledge, that she was at that time eighteen (18) years or more of age, of sound mind, and under no constraint or undue influence. Sworn to or affirmed and subs 'bed to before me by JUAU &W A and C<.??` -1 (f&u s U wit sses, on /- '2004. Nota""ublic e-, itness 6 '-/ Q"xXyk fitness !AN L BROWN NOTARY PUBLIC' -6- LOWER PAXTON WP DAUPHIN COUNTY W COMMISSION EXPIRES MARCH 29 2004 r 4 r ? _ 7D w r _ Vl a •? o a+ ? ? p Z W 4p < r Z) BOYLE, NEBLETT & WENGER Dennis E. Boyle, Esquire Supreme Court I.D. No. 49618 John P. Neblett, Esquire Supreme Court I.D. No. 80036 Randall L. Wenger, Esquire Supreme Court I.D. No. 86537 4660 Trindle Road, Suite 200 Camp Hill, PA 17011 Phone: (717) 737-2430 Facsimile: (717) 737-2452 Email: deboyle(iiWennisboylelaw.com jpn(i?neblettlaw.com rlwenger(a),dennisboylelaw.com Counsel For: Estate of Louise I. Kapp ESTATE OF LOUISE I. KAPP : IN THE COURT OF COMMON PLEAS by and through the Executrix, : CUMBERLAND COUNTY, PENNSYLVANIA HELEN E. RANK, Plaintiff V. : NO. I9 ALLSTATE LIFE INSURANCE COMPANY and KATHLEEN CIVIL ACTION -EQUITY GILBERT, Defendants JURY TRIAL DEMANDED PLAINTIFF'S PETITION FOR PRELIMINARY INJUNCTION AND NOW comes the Executrix, Helen E. Rank, by and through her counsel, Dennis E. Boyle, Esquire, and the firm of Boyle, Neblett & Wenger, and respectfully petitions this Honorable Court to grant injunctive relief against Allstate Life Insurance Company pursuant to Rule 1531 of the Pennsylvania Rules of Civil Procedure for the following reasons: On or about April 9, 2010, Plaintiff filed a Complaint. A copy (not containing exhibits) is attached as Exhibit A. 2. As stated in the Complaint and the Affidavits of Helen E. Rank, attached as Exhibit B, and Brian Ierley, attached as Exhibit C: a. Helen E. Rank is the sister and Executrix of Louise I. Kapp, who died testate on January 28, 2010. A copy of the Certificate of Grant of Letters is attached as Exhibit D. b. The Defendant, Allstate Life Insurance Company (hereinafter "Allstate"), currently holds an annuity in the amount of $430,478.25, the proper person to receive these funds being in dispute. Letters from Allstate are attached as Exhibit E. C. By 2004, Mrs. Kapp was in a severely weakened mental state due to the loss of her husband after a lifetime of marriage, the onset of dementia, and advanced old age. d. She did not know what a bank statement was, where financial paperwork was kept, how to review her mail, or how to write a check. e. Because these subject were beyond her capabilities, she paid Defendant Kathleen (Marbach) Gilbert, a neighbor, to go through her mail, write her checks, and take care of her finances. f. Mrs. Kapp believed that she did not need to take care of anything. Ms. Gilbert used this reliance to benefit herself rather than Mrs. Kapp. g. Ms. Gilbert had Mrs. Kapp close nearly all of her bank accounts and used a portion of those funds to purchase an "Allstate Advantage Plus Annuity" on January 15, 2005. 2 4 h. Ms. Gilbert then took further advantage of Mrs. Kapp by having her designate "Kathleen Marbach", identified as "friend/POA" as the sole beneficiary of the annuity in the paperwork included in Exhibit E. i. Mrs. Kapp told her sister, Helen Rank, that Ms. Gilbert asked her to sign a lot of papers. When asked what it was for, Mrs. Kapp said that she thought it was to transfer bank accounts into a single bank account. j . She did not understand what an annuity was, that she had opened an annuity, or that she designated Ms. Gilbert to receive any proceeds from the annuity. k. She had no idea that the "bank account" was to be distributed other than according to her Will at her death. 1. Mrs. Kapp had also made a Will on January 9, 2004, a copy of which is attached hereto as Exhibit F. M. The Will provided that her estate would be left entirely to her siblings and her late husband's siblings. n. Mrs. Kapp often repeated that only the siblings were to receive her assets when she died. o. After the annuity was purchased, Ms. Gilbert took control of all of Mrs. Kapp's financial records and prevented other family members, including the Plaintiff, from having knowledge of financial transactions. P. It was only by accident, around the time of Mrs. Kapp's death, that Mrs. Kapp's family discovered the existence of the annuity, valued at that time at $430,478.25. 3 q. Ms. Gilbert first told the family not to open the letter with the annuity paperwork, then denied any knowledge about being the beneficiary. At that point she offered to turn all of the proceeds of the annuity over to the family. r. She later changed her story again and offered to give Mrs. Kapp's sister, Helen Rank, half of the proceeds. S. Mrs. Rank responded that it would be wrong to do so because the proceeds were to be divided equally among the siblings. t. By January of 2005, when the annuity was created, Mrs. Kapp was confused not only about her finances but about many things. U. She would call family members and immediately call up again to have the same conversation. She would often leave the same message on an answering machine many times in a row. V. She did not remember that people visited her within 10 minutes after people were gone. W. She would ask her nephew to come mow her lawn even though he had just done so and talked with her. X. She did not even have the mental faculties to be able to care for herself. She would put dirty dishes in the refrigerator or the cupboards. Y. She stopped using the bath and had crusted food on her clothes. 4 Z. She would even sit in front of the TV at 9 in the morning waiting for her favorite show to come on at 6 in the evening with no concept that it was a different time of the day. aa. She would go to her favorite restaurant before they opened for breakfast and wait for them to serve lunch. bb. Similarly, if someone said they would come and visit, she would immediately wait at the window, even if the visit was much later, because she had no concept about time. CC. She often did not know what day of the week it was. 3. Defendant Gilbert exercised undue influence over Mrs. Kapp, causing her to designate her as a beneficiary of an annuity that she did not even know she owned. 4. "Because the occurrence of undue influence is so often obscured by both circumstance and design, our Courts have recognized that its existence is best measured by its ultimate effect. Thus, the Courts' holdings establish a presumption of undue influence when the evidence demonstrates: (1) that a person or persons in a confidential relationship with a testator or grantor has (2) received a substantial portion of the grantor's property, and (3) that the grantor suffers from a weakened intellect." (livens v. Mazzei, 847 A.2d 700, 706 (Pa. Super. 2004) (citing In re Estate of Clark, 461 Pa. 52, 334 A.2d 628, 632 (1975)). 5. Defendant Gilbert was in a confidential relationship with Mrs. Kapp. 6. "[I]f there be any clearer indicia of a confidential relationship than the giving by one person to another of a power of attorney over the former's entire life savings, this Court has yet to 5 see such indicia." Estate of Clark, 461 Pa. at 63 (quoting Foster v. Schmitt, 429 Pa. 102, 108, 239 A.2d 471, 474 (1968)). 7. Defendant Gilbert was listed as a power of attorney on the Allstate paperwork on January 15, 2005 when the annuity paperwork was executed making Defendant Gilbert the beneficiary. 8. "A confidential relationship exists when the circumstances make it certain the parties do not deal on equal terms, but, on the one side there is an overmastering influence, or, on the other, weakness, dependence or trust, justifiably reposed. [It] is marked by such a disparity in position that the inferior party places complete trust in the superior party's advice and seeks no other counsel, so as to give rise to a potential abuse of power." Estate of Fritts, 906 A.2d 601, 608 (Pa. Super. 2006) (internal quotations omitted). 9. Mrs. Kapp was weak, dependant, and trusting and sought no other counsel than that of Defendant Gilbert. 10. A "confidential relation `is not restricted to any specific association of persons nor confined to technical cases of fiduciary relationship but is deemed to exist whenever the relative position of the parties is such that one has power and means to take advantage of or exercise undue influence over the other."' Owens, 847 A.2d at 709-710 (quoting Young v. Kaye, 443 Pa. 335, 279 A.2d 759, 763 (1971)). 11. Defendant Gilbert had the power and means to take advantage and exercise undue influence over Mrs. Kapp. 6 12. If the beneficiary designation is not set aside, Defendant Gilbert will have received the bulk of Mrs. Kapp's property. 13. Mrs. Kapp suffered from a weakened intellect. 14. "`[W]eakened mentality as relevant to undue influence need not amount to testamentary incapacity.' Consequently, the grantor's mental condition at the moment he authorized the transfer of his property is `not as significant when reflecting upon undue influence as it is when reflecting upon testamentary capacity. "' Owens, 847 A.2d at 707 (quoting Estate of Clark, 334 A.2d at 634). 15. "Although our cases have not established a bright-line test by which weakened intellect can be identified to a legal certainty, they have recognized that it is typically accompanied by persistent confusion, forgetfulness and disorientation." Id. 16. Mrs. Kapp was confused and disoriented about even basic financial matters during the entire period where she was receiving "help" from Defendant Gilbert, which is why she was seeking help in the first place. She failed to comprehend the nature of the annuity or its implications. Moreover, she quickly forgot and lost sight of even basic everyday circumstances. 17. For these reasons, Defendant Gilbert exercised undue influence over Mrs. Kapp. 18. Defendant Gilbert also breached her fiduciary duty toward Mrs. Kapp. 19. An "agent is subject to a duty of loyalty to act only for the principal's benefit." Basile v. H & R Block, Inc., 761 A. 2d 1115, 1120 (Pa. 2000) (quoting Sutliff v. Sutliff, 515 Pa. 393, 404, 528 A.2d 1318, 1323 (1987)). 20. Mrs. Kapp paid Defendant Gilbert to look out for her interests. 7 21. Defendant Gilbert, however, looked out for her own benefit rather than Mrs. Kapp's benefit, and this failure injured Mrs. Kapp's Estate. 22. Allstate plans to pay out the proceeds of the annuity to Kathleen (Marbach) Gilbert according to its attached letters. 23. The Estate of Mrs. Kapp will be irreparably harmed if the status quo changes and proceeds are paid to Defendant Gilbert. 24. Greater injuries will be inflicted upon Plaintiff by the denial of the relief requested than will be inflicted upon Defendants by the granting thereof. 25. Allstate will suffer no injury by continuing to hold the funds. 26. Defendant Gilbert will essentially suffer no injury since Allstate will be preserving the funds for to final disposition of this matter. 27. The public interest will not be adversely affected by the granting of relief. 28. The Estate of Mrs. Kapp has no adequate remedy at law because if the funds are paid to Defendant Gilbert, they may completely disappear. 29. No prior application to this Court for such relief or similar relief has been made by the plaintiff. 30. Because the requested relief does not adversely affect either Defendant, only a minimal bond should be required. 31. Defendants were made aware that this Petition was being filed and consent was sought. Neither Defendant responded concerning consent. 8 WHEREFORE, plaintiff requests that this Court grant its Petition for Preliminary Injunction and enjoin Allstate Life Insurance Company from paying the proceeds of Mrs. Kapp's annuity until the final disposition of this matter. Respectfully submitted, BOYLE, NEBLETT & WENGER Dennis E. Boy quire Supreme Court I.D. No. 49618 John P. Neblett, Esquire Supreme Court I.D. No. 80036 Randall L. Wenger, Esquire Supreme Court I.D. No. 86537 4660 Trindle Road, Suite 200 Camp Hill, PA 17011 Phone: (717) 737-2430 Fax: (717) 737-2452 Email: deboylekdennisboylelaw.com jpnkneblettlaw.com rlwenger2dennisboylelaw.com Dated: April 9, 2010 9 Verification Subject to 18 P.S. § 4904, relating to unworn falsifications to authorities, I, Helen ,II E. Rank, state that I have reviewed the foregoing Petition for Preliminary Injunction, and the allegations contained therein are true and correct to the best of my personal knowledge, information and belief. Dated: Helen E. Rank Executrix of the Estate of Louise Kapp ?I 10 EXHIBIT (04 87 4) BOYLE, NEBLETT & WENGER Dennis E. Boyle, Esquire Supreme Court I.D. No. 49618 John P. Neblett, Esquire Supreme Court I.D. No. 80036 Randall L. Wenger, Esquire Supreme Court I.D. No. 86537 4660 Trindle Road, Suite 200 Camp Hill, PA 17011 Phone: (717) 737-2430 Facsimile: (717) 737-2452 Email: debov100ennisboylelaw.com j pnnu,neblettlaw.com rlwenger(&dennisboylelaw.com ESTATE OF LOUISE I. KAPP by and through the Executrix, HELEN E. RANK, Plaintiff V. ALLSTATE LIFE INSURANCE COMPANY and KATHLEEN GILBERT, Defendants Counsel For: Estate of Louise I. Kapp : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA . NO. CIVIL ACTION -EQUITY JURY TRIAL DEMANDED COMPLAINT AND NOW comes the Executrix, Helen E. Rank, by and through her counsel, Dennis E. Boyle, Esquire, John P. Neblett, Esquire, Randall L. Wenger, Esquire, and the firm of Boyle, Neblett & Wenger, and makes the within Complaint against Kathleen Gilbert and Allstate Life Insurance Company, and avers as follows: 1. Helen E. Rank is the sister of Louise I. Kapp, who died testate on January 28, 2010. 2. On or about February 4, 2010, pursuant to the Will of the late Louise I. Kapp, the Register of Wills of Cumberland County appointed Mrs. Rank as the Executrix of the Estate of Louise I. Kapp. A copy of the Certificate of Grant of Letters is attached hereto as Exhibit "A". 3. The Defendant, Kathleen (Marbach) Gilbert, is an adult individual currently residing at 231 Bosler Avenue, Lemoyne, Cumberland County, Pennsylvania. 4. The Defendant, Allstate Life Insurance Company, is a corporation with its principal offices located at 2775 Sanders Road, Northbrook, Illinois 60062. Allstate Life Insurance Company currently holds an annuity in the amount of $430,478.25, the proper person to receive these funds being in dispute. 5. Louise I. Kapp, during all of her adult life, resided with her husband, Marlet R. Kapp, until his death in 2003. 6. Throughout her life, Mrs. Kapp relied upon her husband, Marlet, to make all financial decisions and to manage the finances of the family. Because of her lack of financial sophistication, Mrs. Kapp was forced to rely upon others for financial advice. 7. While her husband was still alive, Mr. and Mrs. Kapp maintained a number of different bank accounts in a number of banking institutions. These accounts were normally savings accounts that returned a fixed interest rate. The exact amount of funds held in this manner is not precisely known, but is believed to have exceeded $500,000.00. 8. By 2004, Mrs. Kapp was in a severely weakened mental state due to the loss of her husband after a lifetime of marriage, the onset of dementia, and advanced old age. 2 9. At the time of her husband's death, Mrs. Kapp did not know what a bank statements was, where financial paperwork was kept, how to review her mail, or know how to write a check. 10. It was about this time or earlier that Mrs. Kapp became acquainted with the Defendant, Kathleen (Marbach) Gilbert, who was a neighbor. 11. Because of Mrs. Kapp's debilitated state, she paid Ms. Gilbert to go through her mail, write her checks, and take care of her finances. 12. Mrs. Kapp believed that she did not need to take care of anything. Ms. Gilbert used Mrs. Kapp's reliance on her to benefit herself rather than Mrs. Kapp. 13. Ms. Gilbert also had Mrs. Kapp close nearly all of her bank accounts and used a portion of those funds to purchase an "Allstate Advantage Plus Annuity" in January of 2005 and to add to that annuity over time. Ms. Gilbert then took further advantage of Mrs. Kapp by having her designate "Kathleen Marbach", identified as "friend/POA" as the sole beneficiary of the annuity. A copy of said application is attached hereto as Exhibit "B". 14. At the time the annuity was purchased, Mrs. Kapp did not understand what an annuity was. When additional funds were transferred, she thought that she was transferring them to a bank account. She had no idea that what she understood as a bank account had a beneficiary separate from what was in her will. 15. Mrs. Kapp had executed a Will on January 9, 2004, a copy of which is attached hereto as Exhibit "C". The Will provided that her estate would be left to her relatives. It is believed that Mrs. Kapp intended for her entire estate, including the funds in the annuity, to be distributed in accordance with her Will. 3 16. After the annuity was purchased, Ms. Gilbert took control of all of Mrs. Kapp's financial records and prevented other family members, including the Plaintiff, from having knowledge of financial transactions. 17. It was only by accident, around the time of Mrs. Kapp's death, that Mrs. Kapp's family discovered the existence of an annuity. 18. Ms. Gilbert first denied knowledge about her status as beneficiary of the annuity and said she would give the family the proceeds and then offered to give Helen Rank, the Executrix, half. Helen declined, claiming that it should be split equally with the family members. 19. Ms. Gilbert still tried to execute paperwork as Power of Attorney to give 25% to Helen Rank, without Mrs. Rank's knowledge or consent. 20. From the time of her husband's death, Mrs. Kapp was confused about many things. She would not only repeat her conversations, but repeat the messages she left on answering machines multiple times. She lost her understanding of time, often failing to realize even the approximate time of day or the day of the week. She stopped caring for herself and would put dirty dishes in the refrigerator and cupboards rather than in the dishwasher. 21. Defendant Gilbert was in a confidential and/or fiduciary relationship with Mrs. Kapp. 22. Defendant Gilbert exercised undue influence over Mrs. Kapp, causing her to designate her as a beneficiary of an annuity valued at $430,478.25. 23. Defendant Gilbert diverted funds belonging to Mrs. Kapp for her own use. 24. Following Mrs. Kapp's death, Defendant Gilbert entered Mrs. Kapp's home and removed jewelry and other personal property of the Estate of Louise I. Kapp. 4 COUNT I Breach of Fiduciary Duty 25. The preceding paragraphs are incorporated by reference as if fully restated herein. 26. Defendant Gilbert owed a fiduciary duty to Louise I. Kapp due to Mrs. Kapp paying her to act on her behalf. 27. Defendant Gilbert breached the fiduciary duty she owed to Louise I. Kapp by placing her own interests over the interests of Mrs. Kapp to the detriment of Mrs. Kapp and her estate. WHEREFORE, Helen E. Rank, Executrix of the Estate of Louise I. Kapp, respectfully requests that this Court: A. Temporarily and permanently enjoin Allstate Life Insurance Company from paying any funds to Defendant, Kathleen (Marbach) Gilbert; B. Direct that Allstate Life Insurance Company pay all amounts due under the annuity contract to the Estate of Louise I. Kapp; C. Enter judgment in favor of the Estate of Louise I. Kapp in an amount to be determined; D. Award the Estate of Louise I. Kapp reasonable attorney fees, the costs of suit, and punitive damages; and, E. Grant such other relief as the Court deems necessary and proper. 5 COUNT II Undue Influence 28. The preceding paragraphs are incorporated by reference as if fully restated herein. 29. Defendant Gilbert was the dominant party in a confidential relationship with Louise 1. Kapp. 30. Defendant Gilbert acted as Mrs. Kapp's Power of Attorney and made financial decisions for Mrs. Kapp. 31. Defendant Gilbert placed herself in a position where she could take advantage of Mrs. Kapp. 32. Defendant Gilbert in fact took advantage of Mrs. Kapp, her weakened mental state, and her complete reliance in order to attempt to obtain $430,478.25 for her own use. WHEREFORE, Helen E. Rank, Executrix of the Estate of Louise I. Kapp, respectfully requests that this Court: A. Temporarily and permanently enjoin Allstate Life Insurance Company from paying any funds to Defendant, Kathleen (Marbach) Gilbert; B. Direct that Allstate Life Insurance Company pay all amounts due under the annuity contract to the Estate of Louise I. Kapp; C. Enter judgment in favor of the Estate of Louise I. Kapp in an amount to be determined; D. Award the Estate of Louise I. Kapp reasonable attorney fees, the costs of suit, and punitive damages; and, 6 E. Grant such other relief as the Court deems necessary and proper. COUNT III Uniust Enrichment 33. The preceding paragraphs are incorporated by reference as if fully restated herein. 34. Defendant Gilbert had Mrs. Kapp sign paperwork that ultimately named her the beneficiary of an annuity which she had Mrs. Kapp fund. 35. Defendant Gilbert should not benefit from that annuity because Mrs. Kapp did not realize that she was benefitting Defendant Gilbert in this way. 36. Defendant Gilbert did not give Mrs. Kapp value equivalent to the benefit Defendant Gilbert retained. 37. It would be inequitable and unjust for Defendant Gilbert to retain this benefit. WHEREFORE, Helen E. Rank, Executrix of the Estate of Louise I. Kapp, respectfully requests that this Court: A. Temporarily and permanently enjoin Allstate Life Insurance Company from paying any funds to Defendant, Kathleen (Marbach) Gilbert; B. Direct that Allstate Life Insurance Company pay all amounts due under the annuity contract to the Estate of Louise I. Kapp; C. Enter judgment in favor of the Estate of Louise I. Kapp in an amount to be determined; 7 D. Award the Estate of Louise I. Kapp reasonable attorney fees, the costs of suit, and punitive damages; and, E. Grant such other relief as the Court deems necessary and proper. BOYLE, NEBLETT & WENGER Dennis E. Boyle, Esquire Supreme Court I.D. No. 49618 John P. Neblett, Esquire Supreme Court I.D. No. 80036 Randall L. Wenger, Esquire Supreme Court I.D. No. 86537 4660 Trindle Road, Suite 200 Camp Hill, PA 17011 Phone: (717) 737-2430 Fax: (717) 737-2452 Email: debo (? ,dennisboylelaw.com jpn&neblettlaw.com rlwen er ,dennisboylelaw.com Dated: April 6, 2010 Verification Subject to 18 P.S. § 4904, relating to unsworn falsifications to authorities, I, Helen E. Rank, state that I have reviewed the foregoing Complaint, and the allegations contained therein are true and correct to the best of my personal knowledge, information and belief. Dated: 'p, A??"A Helen E. Rank Executrix of the Estate of Louise Kapp 9 EXgIBIT (.(*we) ESTATE OF LOUISE I. KAPP by and through the Executrix, HELEN E. RANK, Plaintiff V. ALLSTATE LIFE INSURANCE COMPANY and KATHLEEN GILBERT, Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL ACTION -LAW JURY TRIAL DEMANDED AFFIDAVIT OF HELEN E. RANK I, HELEN E. RANK, hereby swear and depose as follows: 1. I make this declaration upon my personal knowledge of the facts, and am competent to, testify to the facts stated herein. 2. I am a citizen of the United States and a resident of Middletown, Pennsylvania. 3. I am the sister of Louise I. Kapp, who died January 28, 2010, and I am the Executrix of her estate. 4. I visited Louise at least once a week, although when my husband and I were dealing with health issues, it was only once or twice a month. Even when I did not visit, I spoke with her daily. 5. Louise lived with her husband, Marlet R. Kapp, until he died in 2003. 6. Louise relied on Marlet to take care of all their finances including simple tasks like writing checks. 7. Marlet made me aware that he had various bank accounts. However, after Marlet's death, Louise told me that she did not know where the bank accounts were or in whose names the accounts were held. 8. She did not even know what a bank statement was or where any records were kept. f 9. I helped her look around the house for paperwork from the bank and discovered a pile of unopened mail that had accumulated during the sickness of her husband. On that pile I found a statement from one of the bank accounts and tried to explain it to her. 10. I told her we needed to call the bank to find out information about the account. I tried to help her, but she was physically shaking when we needed to call the bank. 11. I found that she did not even know how to use her checkbook. 12. She told me that she did not want to learn how to do these tasks. 13. Because she did not know how to do and could not do these simple tasks like going through mail or using the bank, she relied upon her neighbor, Kathleen Marbach (now Kathleen Gilbert), to write checks and make financial decisions. 14. She paid Kathleen $20 per day to go through her mail for her. 15. She told me that Kathleen would take care of everything for her and said, "I don't have to worry about nothing." 16. She later told us that Kathleen was asking her to sign lots of papers. I asked her what it was about. She said she was not sure but that it had to do with transferring her money into one savings account, which she could pull from if she ever needed to go to a nursing home. 17. Around the time of Louise's death, Brian Ierley, and I went to Louise's home and noticed a letter from Allstate.(Brian is a nephew to both Louise and me.) 18. Brian called Kathleen in response to the letter and she told us not to open it. 19. In part because of Kathleen's response, we opened the letter and discovered that the bulk of Louise's funds were not transferred into a savings account, but into an annuity, formed 2 on January 15, 2005, which named Kathleen as the beneficiary. 20. The annuity was valued at $430,478.25. 21. Brian called Kathleen back, and she stated that she was shocked and that she knew nothing about it. She even stated that she would turn it all over. 22. Kathleen then called back and said that she checked into it and said, "I think your aunt wanted Helen to get half and me to get half." 23. Louise had a will drafted shortly after her husband's death. She made it clear at that time that she wanted all of her siblings and all of her husband's siblings to get equal shares of the estate because that was what her husband had wanted. 24. She often repeated that she wanted her assets to be divided in that way. 25. For that reason, when Kathleen tried to split the annuity with me, I told her that such a split would be wrong because the siblings were to receive the annuity in equal shares. 26. Despite what I said and without any approval from me, Kathleen tried to use her Power of Attorney to give me 25% of the annuity. (You can see on the paperwork that she firs; tried to give me 35% and then scratched that out.) 27. Louise never understood that she had an annuity or that assets would be transferred other than through the will. 28. She told us at the time that the moneys were transferred that she had a savings account and that she would take the money out if she ever needed it. 29. She repeated often that the siblings and only the siblings would equally divide her assets. 30. Louise did not and could not comprehend details such as the difference between a savings account and an annuity with a beneficiary. 3 31. While she remembered how her late husband wanted the will divided, a subject they talked about for years, her mental state deteriorated after her husband's death. 32. By January of 2005, when the annuity was created, she was confused not only about her finances but about many things. 33. She would call family members and immediately call up again to have the same conversation. She would often leave the same message on an answering machine many times in a row. 34. She did not remember that people visited her within 10 minutes after people were gone. 35. She would ask Brian to come mow her lawn even though he had just done so and talked with her. 36. She did not even have the mental faculties to be able to care for herself. She would put dirty dishes in the refrigerator or the cupboards. ?7. She stopped using the bath and had crusted food on her clothes. 38. She was even afraid to use the remote control for her television and became agitated at the suggestion about trying to use the various buttons. 39. She would even sit in front of the TV at 9 in the morning waiting for her favorite show to come on at 6 in the evening with no concept that it was a different time of the day. 40. She would go to her favorite restaurant before they opened for breakfast and wait for them to serve lunch. 41. Similarly, if someone said they would come and visit, she would immediately wait at the window, even if the visit was much later, because she had no concept about time. 42. She often did not know what day of the week it was. 4 43. She eventually was so disconnected from reality that in walking away from her brother's funeral, she asked someone to grab him so that they could go get something to eat. 44. Although Louise never had a medical diagnosis of dementia, there was never the opportunity for such a diagnosis because she refused to go to the doctor. I declare under penalty of perjury that the foregoing is true and correct. Dated: April 2010 LEN E. RANK Sworn to and subscribed before me this -Z .tu- day of April, 2010 /?z Notary Public _ My Commission Expires: 01 OZ `6Z aun f sa.ndxa uolssiwwoa ,cy? ?S1unOJ puellagmn3 `IIIA d * WROJO (aid OIlgnd Xxe10M ,sja5og V Xuuad "Ivgs IVI-d '.LOM EXHIBIT 44 c 4) ESTATE OF LOUISE I. KAPP by and through the Executrix, HELEN E. RANK, Plaintiff V. ALLSTATE LIFE INSURANCE COMPANY and KATHLEEN GILBERT, Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL ACTION -LAW JURY TRIAL DEMANDED AFFIDAVIT OF BRIAN IERLEY I, BRIAN IERLEY, hereby swear and depose as follows: 1. I make this declaration upon my personal knowledge of the facts, and am competent to testify to the facts stated herein. 2. I am a citizen of the United States and a resident of Middletown, Pennsylvania. 3. I am the nephew of Louise I. Kapp, who died January 28, 2010. I am the son of her brother Charles Ierley. 4. I saw and spoke to my Aunt Louise several times a month. 5. Aunt Louise lived with her husband, Marlet R. Kapp, until he died in 2003. 6. Aunt Louise relied on Uncle Marlet to take care of all their finances including simple tasks like writing checks. 7. Because she did not know how to do and could not do simple tasks like going through mail or using the bank, she relied upon her neighbor, Kathleen Marbach (now Kathleen Gilbert), to write checks and make financial decisions. 8. She paid Kathleen $20 per day to go through her mail for her. 9. She told me that Kathleen would take care of everything for her. 10. Aunt Louise said that Kathleen transferred her money into one savings account, which she could pull from if she ever needed to go to a nursing home. 11. Around the time of Aunt Louise's death, Helen Rank (my aunt) and I went to Aunt Louise's home and noticed a letter from Allstate. 12. I called Kathleen in response to the letter and she told us not to open it. 13. In part because of Kathleen's response, we opened the letter and discovered that the bulk of Louise's funds were not transferred into a savings account, but into an annuity, formed on January 15, 2005, which named Kathleen as the beneficiary. 14. The annuity was valued at $430,478.25. 15. I called Kathleen back, and she stated that she was shocked and that she knew nothing about it. She even stated that she would turn it all over to the family. 16. Kathleen then called back and said that she checked into it and said, "I think your aunt wanted Helen to get half and me to get half." 17. Aunt Louise had a will drafted shortly after her husband's death. She made it clear at time that she wanted all of her siblings and all of her husband's siblings to get equal shares of the estate because that was what her husband had wanted. 18. She often repeated that she wanted her assets to be divided in that way. 19. Aunt Louise never understood that she had an annuity or that assets would be transferred other than through the will. 20. She told us at the time that the moneys were transferred that she had a savings account and that she would take the money out if she ever needed it. 21. She repeated often that the siblings and only the siblings would equally divide her assets. 22. She would even say apologetically to me that she hoped I would continue to visit even 2 though everything was going to the siblings. 23. Aunt Louise did not and could not comprehend details such as the difference between a savings account and an annuity with a beneficiary. 24. While she remembered how my uncle wanted the will divided, a subject they talked about for years, her mental state deteriorated after his death. 25. By January of 2005, when the annuity was created, she was confused not only about her finances but about many things. 26. She would call family members and immediately call up again to have the same conversation. She would often leave the same message on an answering machine many times in a row. 27. She did not remember that people visited her within 10 minutes after people were gone. 28. She would ask me to come mow her lawn even though I had just done so and talked with her. 29. She did not even have the mental faculties to be able to care for herself. She would put dirty dishes in the refrigerator or the cupboards. 30. She stopped using the bath and had crusted food on her clothes. 31. She would even sit in front of the TV at 9 in the morning waiting for her favorite show to come on at 6 in the evening with no concept that it was a different time of the day. 32. She would go to her favorite restaurant before they opened for breakfast and wait for them to serve lunch. 33. Similarly, if someone said they would come and visit, she would immediately wait at the window, even if the visit was much later, because she had no concept about time. 3 34. She often did not know what day of the week it was. 35. She eventually was so disconnected from reality that in walking away from her brother's funeral, she asked someone to grab him so that they could go get something to eat. I declare under penalty of perjury that the foregoing is true and correct. Dated: April 7 , 2010 RIAN IERI.EY Sworn to and subscribed before me this day of April, 2010 Notary Public My Commission Expires: NOTARIAL SEAL Penny A. Rogers, Notary Public City of Camp Hill, Cumberland County My commission expires June 29,20 10 4 EXKIBIT (0111) 10) REGISTER OF WILLS CUMBERLAND COUNTY PENNSYLVANIA CERTIFICATE OF GRANT OF LETTERS No. 2010- 00114 Estate Of : LOUISE I KAPP PA No. 21-10-0114 (First, Middle, Lastl Late Of : LEMOYNE BOROUGH CUMBERLAND COUNTY Deceased Social Security No: 174-20-5184 WHEREAS, on the 4th day of February 2010 an instrument dated January 9th 2004 was admitted to probate as the last will of L GUISE / KAPP (Firs , Middle, Last) late of LEMOYNE BOROUGH, CUMBERLAND County, w o died on the 28th day of January 2010 and, WHEREAS, a true copy of the will as probated is annexed hereto. THEREFORE, I, GLENDA FARNER STRASBAUGH Register of Wills in and f r CUMBERLAND County, in the Commonwealth of Pennsylvania, hereby certify that I have this day granted Letters TESTAMENTARY to: HELEN E RANK w o has duly qualified as EXECUTOR(R/X) a rd has agreed to administer the estate according to law, all of which f fly appears of record in my office at CUMBERLAND COUNTY COURT HOUSE, C, 9 RLISLE, PENNSYL VA NIA. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal o my office on the 4th day of February 2010. **NOTE** ALL NAMES ABOVE APPEAR (FIRST, MIDDLE, LAST) EXHIBIT (blow 4) AR r, ?[ll( Allstate Life Insurance Company P.O. Box 94212 Palatine, IL 60094-4212 Telephone: (877) 499-6418 Facsimile: (866) 635-4523 March 9, 2010 Attorney Dennis E. Boyle Boyle, Neblett & Wenger 4660 Trindle Road Suite 200 Camp Hill, PA 17011 Re: Louise 1. Kapp Contract No: GA18382429 Dear Attorney Boyle: WAllstatel. You're in good hands. We received a request to complete IRS Form 712 for the above referenced contract. The purpose of Form 712 is to provide an estate or donor with the value of a life insurance contract or its proceeds as of a certain date (usually the owner's date of death or date of transfer of the contract). Because this contract is an annuity, it is not reportable on IRS Form 712. I can, however, provide the following information for estate purposes: Date of Death: January 28, 2010 Annuity Value as of Date of Death: $ 430,478.25* Cost Basis: $ 372,907.00 Named Beneficiary: Kathleen Marbach *The actual amount paid may differ due to Market Value Adjustments and/or any applicable Surrender Charges. If you have any questions, please contact me at 1-877-499-6418 Ext. 86743. Sincerely, Rick. Campos Sr. Claim Examiner MAR 1;?) 10101 Allstate Life Insurance Company P.O. Box 94212 Palatine, IL 60094-4212 Telephone: (877) 499-6418 Facsimile: (866) 635A523 WAllstate. You're in good hands. March 9, 2010 Attorney Dennis E. Boyle Boyle, Neblett & Wenger 4660 Trindle Road Suite 200 Camp Hill, PA 17011 Re: Louise I. Kapp Contract No: GA 18382429 Product Type: Fixed Annuity Tax Type: Non-Qualified Dear Attorney Boyle: This letter is in response to your February 22, 2010 letter regarding the above referenced annuity. Since you are the attorney representing the Estate of Louise Kapp we are releasing information to you regarding this annuity, including a copy of the application and change of beneficiary form along with a date of death value letter. This annuity was issued on January 18, 2005 to Louise Kapp. The application was signed by Louise Kapp and she listed Kathleen Marbach as the primary beneficiary. For privacy issues I have blocked out the Social Security Numbers, addresses and dates of birth from the enclosed documents. On January 25, 2010 Allstate received a change of beneficiary request signed by Kathleen Gilbert as Power of Attorney. This request was to name Helen Rank as 25% beneficiary and retain 75% for herself. Kathleen Gilbert's Power of Attorney document did not give her the authority to change beneficiaries therefore this change of beneficiary request was denied. Our intent is to pay 100% of the proceeds of this annuity to Kathleen Marbach as the named beneficiary on the application. At your request we will hold the processing of this claim to allow you with 30 days to provide us with a legal basis for why we should not invite claim to the named beneficiary. However if you find you are in agreement with our findings we would appreciate you notifying us of this so we can invite claim and begin the claim review process. Should you have any further questions please contact me at 1-877-499-6418, Ext. 86216. Sincerely, Rick Campos Sr. Claim Examiner 01 /?P/ 2 N T"0" 885 OIL ?.,7 773 0254 tt) lS?bgOC PACZ 01 - (WA ON FOR 711E AlfgT/{Tte MY/11'ffAOE PlU8 Arlt/um? tastrtld W. A4114419 Ufa Insurance Comperry d 29r0 S Oath Street, Lincoln. Nebraska eeeoet-4102 - 800.7SS-5775 Make *hack persbk to Allabne Uts bw asnos Company Bolus /t inky Ntnlber GSA 1 $ 3.8 2 4 2 2 issue pate-,.,r , - ? •? 1. OYifl O(s) Name O M ffi.F BIrtlldate K the owner to a trot at Address A31 If $00 Sac. NoJf IN other non•fMnp atrttsA is win 71e3- rownracy daeth benaat dos dry p 3 Phone Na / '7•- ,. ?,,, ,_, tapardlsa et any benMfp?etisa Name O M O F Birthdau deriarrsted on the atxxroci Street Addneas Soo. Sec. No/TIN ply st¦te --_-Zip Phone No. Am all OwnWAj ArttxdtsrA and Banelldsrypa) U3, Gamma?mks O Na B nos Oat rw, snd oouelly oI aadl IaSpeeld 1=ruatk= Z, Owner Type VL IndtN0ue1 O Non GrdnWr Trust O CorporateVAssodatlon O Tax Exompr/NonProllt Organization O Minor O Partnership O Grantor Tnzat O Gu"fal AcOOutn O Other 3- Mnultent Name OM OF Berthdste ! / Lam blink It Anowunt is the aa:ue as sole Dwner St1eM Address Soc. Sec No. othem complete city %Ofe -----ZIP 4. S8illalY(l@s? Noma ROtatlonshlp to Owner beneAae4ryry Ia al Soc see NoInN f3itthdate ab er»Anf k4 armapmn under Special 11141rud'aft Name Rolm Unship to er. SOC. Sea NoA1N Birlhoste I I 94 Address bitty State ,,,-,,,,,, Zip I Tax QuaMed Plan C7 yes o hack one - If Yea, complete the (ollpwing ) 0 radhrOnel IRA O Roth IRA O SEP - IRA O IRA Rollover CI IRA Translar O Other Contribution. Q Individual D Employer $ Year Purchase Payment kWW vlnaMae P"mod *Dwaine rest Rate + let W Qmas bits-sI- Matti, W lot* n at Intorest rote 0 OPON 1: 0 a'oq- 1 year a 2,00 to + , t, 5n 01 • 40 and mitut gwtana+e taw k"d rMulwas Prdntard @ D o? - 1, , 'Rabe -lt>tal tat Yr Umere t P?bt1(a) a Option 2: S ter I yea % . , _ ..-. % S tax 8 ore ® % - it S for *Yen * tie - N 3 for a yeerv 0 _14 W-% I S&" kta-of o pfow4W a rn rwern 4 to &Avhlra Ind a tamed a nasata L64 datraM Ritz imr Lea nW e** to t1W c+aa a nrw beRbm rr"WN Replacement Do you have any existing annuity or He insurance contracts? Vf'Yes O No Information W(h this annuity replace or change any txnft annuity or iite 1nsurenca? D Yes qfNb of Ya& ew vow V* tblbwtng ) company Nicy No. Special Instmalom SlontstUrIe(tl) Qwner(Q Signature P4quired 1 represent that the IrlMmoWn prortded ahovtaa to OOMptate and Mile w the best of my 8a and balled. 1 }tare read die appowdrlo "ud wan ft for my sate on the revem side. I acknoWedge for Bw Qualified Annufty aattcacLa tftpt tld) l tbrrrta and dls'doatN'aa rata be tttsrd dM+aathr to me. under pe wNes perjury. a1: (t) The nu own on my correct uuWysr (or I am wardng 6V A numbas to be lamed to me). and (Z) I rim am ofted to backup whi ihokUng beceruser (a) I tam aiampt fresn backup whhh1okOns. or (b) I terra not been notNlad by brie Irdarne) Rewraw Setrka (IRS) that 1 arts suer m to backup whilboidrng as a rma of a tauura.to report alf intereat or dMdonda, or (c) the (IRS) Ims nottlied me neat 1 am no tongw subject to bocloop whhhoMhtg, (a) 1 am a U.S, person UnchnIbM U A raskUm alien). ?fro IrrWons! Revenuo servioe does Not requlm your oonserK to any provktaml of this document other lhan the cvrdflwcon rogtdrad to awald backup wkhlraldbqp? Ovmer(e)Signature, Stgnedat ate .ILL/.t.?? ! 3? 1. CRY 1 Agent Use only M the beat of my knowledge the insured has an existing annuity or Iris inturetwe controoL X Yes O No Do yvu have arty reason to:bel'i" that the annuity applied for Is to mplBCa?}f?n ex smo annuity or ate Insuran Efm No In5atutlon -{?i ?L T%St-TAAC.? Agent N1etly/ Pho ne No ( hif7 ) Agent ftV C Soc Sac. Nu Agent No. I-Mau Address' FAX No (I I'1) `1-10' 03 sq 5DI958 OWNtR - WHITE INSURER - YELLOW AO ENT - PINK AOBNCY - COLOENHOO FI (DI/da) 01/18/2005 14:09 7177300254 w ? PNC PAGE ;02: r-- : ANNUITIES AcmawumomEN`f AND DISCLOSURE OPiNC FoR Nrsw PuRmAsn mloR AnDmoNs 11) &ism AaNtt m k UM roc ISWII "m 14614F ) r aramaa naahe t Sm^ Phobtf Me aAaft s" AN#WTY PWICHASED OR ACOiRON F • AMOUNT 9b OF now SMEDULE IMF- 4tL 00.00 13 1 (0 V 0 1. Typt of itunaCtjorr: 1A tw roast 0 Ad Me 11M IN to VW M prodrlct E J ht-set *Mm* sddttion 2 Estimated t+awd AMU (neon-0 OW are mh or M81111y UMPe ttble to cash): A df00c) . d D M*bWR 0 006 1 Net Womb (Exdtiding Name): t? d hmeabnent Objecdves: FOr hnd?etlloh Artnultles O Inane O Other (ss dcAntd) Av V& kbfe Annu1ft OMy, 0 Growth and Inmme O Irmp•Term Growth O { mwilt wfOcc Speculation O Other Ns ddfiaed) !UrAwdAnnurtree Onry: 0IMp Term Growth VAPMK gttarh W fMnclpal f7 OMer (ss dd "4 N diem(s) ab)eeflves Oft from wWs dvdosed m the New Account ApANtmW% at it the Inveth tot objective VOW. gem fWaIA the re*M for thls rmeatmem: CHECK IF e0 iTY 'bonus" products N wily contracts that p"* an nmmedis to aedit ww porchaW may have hlpritr coats. fm m order charges and for larger surrender periods than rem-bonus Fwa tt If this b a " mur Product, I undcro"M that either the rntcrnal a me%, or the SUMM r Paw may be greater than a comWnbk non-bonus PWWL %"us rates may net apply after the A* gar 10 Rate Bonus Pletst Wk to tlhe term of the bonus and the addltum4l 4b to the hndiat rote: .. Mattis 1-K % O Premium Dom Please Indicate tit bonus aWlted to the eantrettl % Are either Use Internal expmus or the surrender period freatp than a Comparable IiJC Irourara approved product from the saint Corbett Oyes 64 lfym hew much greater, M f F feet (tor Wnablt aftmIves only) ,,..._._a4 HoldtnglSwrertdet period (in VeNq. -----yri Ist Ym Surnsder Oorgc Inemast 4b c1 E(IF V AIMNUi[Y lire motmt boa rate of son to the udbsl purchase Imyomt 04 The base met u puennteed by the mortince eemptny for i ?- ,mmMhi tbllomng the Incise rats putoA renewal rhttp wJl be detibetd arbttglly by tit Inwnmw meapany n dtsclhbtd ln'ttx appiidlNt pntynlohta W brie uhhwtty contract lfihe Aced aev1mfy b tanttCed duArtp a 'tees-tools" W04 ItW row spows is aeternhae whether OR prinnpd or vxW Y411 be ftkmkt W • (fit m has received the-prahtpteea that oipban all aspects of Ilia' INesoaept and undeatands that they d*40 tend one Kepi a IN Maim reference • Thd lewturwt a wOlM to price aid ykld fluctvadohS that may wank In a market vduc lagher of lower than original amah"t. ?ut pinto snee Is rot indhcUtre of future ntrda • Clknt bus the npht to dnod a wrbbtt anmulty fhhrestment rAtldn the core traahe spttllkd by the oahdac! Gmlev othtrwae hubjatt to sbte law), dknt Cosy tx pNtrt beet ksa than MOM smtW V %deperdbrp on the martetvdoe of thevadabk annaty at the taus of anoiftom. In WOW. etltet mkronds Imttan AwdrAdends or not mcel d tr the omwty tmbaEt a sutrHtdm dpnng the *he low period C11E?K IF iM TE U PURty(ASE 1 undersnad Met I M lWW aft thh ouw,ty and ftt. by the vary ranee of the padv% i am peverned hoar any twWv or b4 W*M of tent annuity. I uaddytand trot 1 nay incur in lmhrtadhte tart putty end that this Product doo not ncigdt gel-ddamd tx m tt AP )QAi. Am ulmv art: Mwdan of the aweq Insurmce eompsny which b cwt N Wted with PNC Inturem Samm Irw I hnderwad that own* canned roe long term Mvt &mm and $14 not suitable fw Oat corm t MV4; act not depedb a obk bwo of, or yvarmidecd by. PNC Ink. NA, oe rl of ds offillstan we not bhaurtd by the FIX a say to purthne Yrvatlenrt W bmo• "t iv*0 to and the dftWm m of R[ By k C Bar > HA Val rat ditch the tart a hety of oft p so vicd fro nt M pv&kb ? Amvrbt% ropy be svb)M W ftdt of bhv m tart pmWa for wMWnrw* pnor to age 58% 11") adeabotd fiat 1 Iwo OwA consult my tax 10ieser Pot more to at Irdornistloo. N advmhabon peavrded Am com mAii fit tmWq a a wmmsry oral/ and a" not W** ag product Natures and dots not Co m me a wwwL the camaet bet acm you and the Mtittranet Company WIN be the Mal authoAty for product natures 1(we) Wow metmYriedge receipt of this admotdedgemtat and dmkwn both ordty aid In wMMtp and vtft IN accuracy of the hhfarn oom tonia?ned above. t n n teat ' Date d/-- - oS Aawtmt Md Cot 9ro?t1 R dote •MayLWeWue n . -No BW* Ch arantce: raswrhssso•oeo, alm-AprngPW "- FC wddcmd - aamc l 1 a REQUEST FOR CHANGE NF BENEFICIARY (PAYEE) THIS FORM NOT TO BE USED WITH SECTION 409 AND 403(b) CONTRACTS QA11state. Yours in good hands Allstate Life Insurance Company PO a.. AAAAG !-,J. Wt ADAM-ruila Use ball point pen when completing form TEL 1-800-76"276??FAX 1-868428-10 Join Owmer'a Name (of applicable) Joint Owner's SSNRIN Insured or Annuitants Name insured orAnnuitanCe SSN/TIN It the Contract Owner Is the TR ST then the Beneficiary should a sa bet a TRUST. A. Individual, Corporation or Estate sn -- n Name of Primary Benetfaery #1 Name of Primary Benekwiy #2 ? Equally OR 18 Percentage % Q Equally OR SPercentage _ % NOT$t ... Pkim,usts WHOLE Percentages ONLY ntagas ONLY Ci tatalzi) G. /8late/2ip S Date of Birth MM@2 SSNRIN Date of Buth (MM10131YYYY) Relationship _ Relationship B. Trust as Primary Beneficiary (NOT Under Last Will) Name an Date of Trust Name of Current Trustee Trust x ID Number Street Address City State p C. Trust as Primary Beneficiary (Trust Within Last Will) To the trustee of the trust created pursuant to the last Will and Testament of _ as admitted arse to probate provided the trustee submits a wntten claim within six months of the death of the person that triggered payment under the policy. If no such claim is made by the trustee, the proceeds shall be paid to Name to 0is fornt. Perecritages ( mist add up to 100 Name of Contingent Benefroary 91 Name of Contingent Benefluary #2 ? Equally OR ? Percentage % ? Equally OR ? Percentage % NOTE Please use WHOLE Percentages ONLY NOTE. Please use WHOLE Percentages ONLY Street Address Street Address City/Staterzip Cq/State/Ztp SSN/TlN Date of Birth (MMIOpNYYY) SSN/TIN Dale of Birth (MM10Df1YYY) Relationship Relationship a r? Page 4 of 5 (0mg) 1 i Piviceeds cannot paid trecNy to a minor banaticiety Proceeds can, however, be petd to an aduN custodian for such minor beneficiary designated by the owner under the relevant state Uniform Transfers to Minors Act (See instructions) I designate Name Custodian's SSNrTiN (REQUIRED) Slreel Address City State Zip as Custodian of the funds payable to Minor's Name Minor's SSNfTIN under the Uniform Transfers to Minors Act (or Uniform Gifts to Minors Act If SC or VT Is Noma of slate designated). NOTE: If a custodian is named but no state-specific Uniform Transfers to Minors Act is designated, Allstate will use the provisions of Illinois UTMA. Are all Beneficiaries, Custodians and/or Trustees U.S. Citizens? 19 Yes ? No. If No, complete below. Name Name Party to the Contract (i e 'Trustee") arty to the ntracl i e 'Trustee/ Country o Citizenship Country o Citizenship Permanent Resident Card Number (Attach Copy Possible) Permanent Resident Card Number (Anach Copy if ossVi Visa Number and Type (Attach Copy i Possible) Visa Nvmber a Type (Attach Copy if Possible) STEP G - SIGNATURES BY THI R E E C ! LL R (PAYEE) , DESIGNATIONS AND SETTLEMENT PROVISIONS ON THIS POLICY, NOTICE TO ALL PARTIES COMPLETING THIS FORM: It Is fraudulent to fill out this form with Information you know to be false or knowingly omit important facts. Criminal and/or civil penalties may result from such acts. Mail completed, stoned and dated form to Recorded at. FIC778DA ALLSTATE LIFE INSURANCE COMPANY PO BOX 80469 Lincoln, NE 68501.0469 Home Office Auftrization Date iMM10ONYM Page 5 of 5 (08109) i This change Is subject to the provisions and limitations found in the policy. EXgIBIT `?r?? I` LAST WILL AND TESTAMENT OF LOUISE I. KAPP I, LOUISE I. KAPP, now domiciled in Cumberland County, Pennsylvania, declare this to be my Last Will and Testament. I revoke all other wills and codicils that I may have previously made. T Article I My just debts and expenses of my last illness, funeral, and administration of my estate shall be paid by my Executor from the principal of my residuary estate as soon as practicable after my death. Article II All inheritance, estate, and succession taxes (including interest and penalties thereon, but not including any generation skipping tax) payable by reason of my death shall be paid out of and be charged generally against the principal of my residuary estate without reimbursement from any person. This provision is not a waiver of any right which my Executor has to claim reimbursement for any such taxes which become payable as the result of any property over which I have the power of appointment. cQ .. C7 ?? ?C ?' CD tC: C f :> m I Article III I give, devise and bequeath in accordance with any memorandum which I have either handwritten or signed, located with my will or with my valuable papers and found within 30 days of the probate of my will. Gifts may only be to persons who survive me or to organizations which exist at my death, and if there is a conflict, the memorandum having the latest date shall govern. Article IV All the rest, residue and remainder of my estate, of whatsoever nature and wheresoever situate, I give, devise and bequeath according to the following schedule: A. ONE-EIGHTH (1/8) to my brother, CHARLES A. IERLEY, of Dauphin County, Pennsylvania. If CHARLES A. IERLEY predeceases me or fails to survive me by thirty (30) days, then I give, devise and bequeath the share he would have received to his wife, DORIS IERLEY; B. ONE-EIGHTH (1/8) to my brother, SAMUEL F. IERLEY, JR. of Cumberland County, Pennsylvania. If SAMUEL F. IERLEY, JR. predeceases me or fails to survive me by thirty (30) days, then I give, devise and bequeath the share he would have received to his wife, MARILYN IERLEY; C. ONE-EIGHTH (1/8) to my sister, MARGARET M. BEMESDERFER; of Mountville, Pennsylvania. If MARGARET M. BEMESDERFER predeceases me or fails to survive me by thirty (30) days, then I give, devise and bequeath the share she would have received to her son, JAMES BEMESDERFER, of Mountville, Pennsylvania; D. ONE-EIGHTH (1/8) to my sister, HELEN E. RANK, of Dauphin County, Pennsylvania. If HELEN E. RANK predeceases me or fails to survive me by thirty (30) days, then I give, devise and bequeath the share she would have received to her son, WAYNE RANK, of Dauphin County, Pennsylvania; E. ONE-EIGHTH (1/8) to my sister-in-law, EVELYN WRIGHTSTONE, of Shiremanstown, Pennsylvania; F. ONE-EIGHTH (1/8) to my brother-in-law, EUGENE C. KAPP, of Cumberland County, Pennsylvania; G. ONE-EIGHTH (1/8) to my sister-in-law, DORIS MUSSER, of Cumberland County, Pennsylvania; H. ONE-EIGHTH (1/8) to my sister-in-law, MARYANN GINGRICH, of Fairfield Glade, Tennessee. If one of the beneficiaries named in this article predeceases me or fails to survive me by thirty (30) days, I give, devise and bequeath the share he/she would have received to the remaining named beneficiary(ies) in this article who survives me by thirty (30) days, PER CAPITA, NOT PER STIRPES. Article V I nominate, constitute, and appoint my sister, HELEN E. RANK, as Executrix of my Last Will and Testament. In the event of the renunciation, death, or inability to act, for any reason whatsoever of my Executrix, I nominate, constitute and appoint my friend, KATHLEEN M. MARBACH, of Cumberland County, Pennsylvania as successor Executrix of my Last Will and Testament. I direct that my Executrix or successor Executrix be permitted to serve without bond and -3- r in addition to those powers granted by law, I grant them power to distribute in cash or in kind in like or in unlike shares and to file any qualified disclaimer I could have filed if living. My Executrix or successor Executrix shall receive reasonable compensation for services rendered to my estate. Article VI In addition to the powers conferred by law, I authorize my Executrix and successor Executrix, in her absolute discretion: (a) to retain in the form received and to sell either at public or private sale, any real estate or personal property except that which I specifically bequeath herein, (b) to manage real estate, (c) to invest and reinvest in all forms of property without being confined to legal investments, and without regard to the principal of diversification, (d) to exercise any option or right arising from the ownership of investments, (e) to compromise claims without court approval and without consent of any beneficiary, (f) to file any federal income tax return for any year for which I have not filed such return prior to my death, (g) to make distributions in cash or in kind, or in both, and to determine the value of any such property, (h) to employ any attorney, investment advisor, or other agent deemed necessary by my Executor; and to pay from my estate reasonable compensation for all their services, (i) to conduct alone or with others, any business in which I am engaged in, or have an -4- interest in at time of my death, and 0) to receive reasonable compensation in accordance with their standard schedule of fees in effect while their services are performed. IN WITNESS WHEREOF, I, LOUISE I. KAPP, hereby set my hand to this my Last Will and Testament, on 2004, at Harrisburg, Pennsylvania. LOUISE I. KAPP In our presence, the above-named LOUISE I. KAPP signed this and declared this to be her Last Will and Testament and now at her request, in her presence, and in the presence of each other, we sign as witnesses. Name Address d At( kAg L ?r _77 ixe'( -5- I, LOUISE I. KAPP, Testatrix, who signed the foregoing instrument, having been duly qualified according to law, acknowledge that I signed and executed this instrument as my Will, and that I signed it willingly as my free and voluntary act for the purposes therein expressed. Sworn to or affirmed and acknowledged before me by LOUISE I. KAPP, the Testatrix on /' f 2004. NMr Public LOUISE I. KAPP RUIMM am MN 4 BROWN Ptf" MARY LOWER ON NCOMMISSION E11Y??IP.OAUPNIC 129x004 We, the undersigned witnesses who signed the foregoing instrument, being duly qualified according to law, depose and say that we were present and saw the Testatrix sign and execute this instrument as her Will; that she signed and executed it willingly as her free and voluntary act for the purposes therein expressed; that each of us in her sight and hearing signed the Will as witnesses, and that to the best of our knowledge, that she was at that time eighteen (18) years or more of age, of sound mind, and under no constraint or undue influence. Sworn to or affirmed and subs 'bed to before m by f. and . ee ' SQ- v, wit sses, on 2004 Nota?y ^1 ublic fitness ?Yk Qz, cx?- fitness NOTARIAL 3tAL !AN 1. BROWN NOTARY PUBLIC MY CCOOMIMSSSION 6KOE8 M H ? ?4 -6- A a r m ? o 0 a Z ? ?x Z o r ? N o ? rC '4 N y? n o m r r ? o Rp .. CERTIFICATE OF SERVICE I HEREBY CERTIFY that I am serving upon all persons listed below a true and correct copy of Plaintiff's Petition in the above captioned matter. By delivery to a process server for personal delivery pursuant to Pa.R.Civ.P. 400(b)(1). (A copy was also hand delivered to her home, prior to filing, on April 7, 2010.): Kathleen Gilbert 231 Bosler Avenue Lemoyne, Pennsylvania By mail (in its entirety) and facsimile (with respect to the actual petition only) to: Attn: Margaret Dow Allstate Life Insurance Company 2775 Sanders Road Northbrook, Illinois 60062 1-866-635-4523 BOYLE, NEBLETT & WENGER Sara Berkebile 4660 Trindle Road, Suite 200 Camp Hill, PA 17011 Phone: (717) 737-2430 Fax: (717) 737-2452 Dated: April 9, 2010 11 ` --r r v !7 7 BOYLE, NEBLETT & WENGER Dennis E. Boyle, Esquire Supreme Court I.D. No. 49618 John P. Neblett, Esquire Supreme Court T.D. No. 80036 Randall L. Wenger, Esquire Supreme Court I.D. No. 86537 4660 Trindle Road, Suite 200 Camp Hill, PA 17011 Phone: (717) 737-2430 Facsimile: (717) 737-2452 Email: deboylea-dennisboylelaw.com jpn@neblettlaw.com rlwengerndennisboylelaw.com aY Counsel For: Estate of Louise I. Kapp ESTATE OF LOUISE I. KAPP : IN THE COURT OF COMMON PLEAS by and through the Executrix, : CUMBERLAND COUNTY, PENNSYLVANIA HELEN E. RANK, . Plaintiff V. : NO. 10-2371 ALLSTATE LIFE INSURANCE COMPANY, METLIFE INVESTORS USA INSURANCE COMPANY, and CIVIL ACTION -EQUITY KATHLEEN GILBERT, Defendants JURY TRIAL DEMANDED PLAINTIFF'S MOTION TO AMEND COMPLAINT AND NOW comes the Executrix, Helen E. Rank, by and through her counsel, Randall L. Wenger, Esquire, and the firm of Boyle, Neblett & Wenger, and respectfully moves this Honorable Court to Amend the Complaint for the following reasons: 1. On April 9, 2010, Plaintiff filed a Complaint. 2. On April 9, 2010, Plaintiff also filed a Petition for Preliminary Injunction against Allstate Insurance Company in order to prevent payment of an annuity death benefits to the named beneficiary due to Plaintiff's belief that the beneficiary was not properly named. 3. Judge M.L. Ebert has reviewed that matter and is setting it for a hearing. 4. Plaintiff discovered a second annuity, this time with MetLife Investors USA Insurance Company (hereinafter "MetLife"), and therefore seeks to Amend the Complaint to add MetLife as a Defendant so that a Preliminary Injunction can be sought against MetLife's payment of annuity death benefits. 5. Attached as Exhibit A is the Amended Complaint which Plaintiff seeks to file. 6. Concurrence of the parties regarding amendment of the Complaint was sought, but the parties have not responded. 7. Pursuant to Pa.R.Civ.P. 1033, an amendment to the pleadings may be granted. 8. The court "generally should exercise its discretion to permit amendment." The Brickman Group v. CGUIns., 865 A. 2d 918, 927 (Pa. Super. 2004). 2 WHEREFORE, Plaintiff requests that this Court grant its Motion to Amend the Complaint. Respectfully submitted, BOYLE, NEBLETT & WENGER Dated: April 13, 2010 Dennis E. o , Esquire Supreme Court I.D. No. 49618 John P. Neblett, Esquire Supreme Court I.D. No. 80036 Randall L. Wenger, Esquire Supreme Court I.D. No. 86537 4660 Trindle Road, Suite 200 Camp Hill, PA 17011 Phone: (717) 737-2430 Fax: (717) 737-2452 Email: deboylekdennisboylelaw.com jl2n@,neblettlaw.com rlwengergdennisboylelaw.com 3 EXHIBIT "A" BOYLE, NEBLETT & WENGER Dennis E. Boyle, Esquire Supreme Court I.D. No. 49618 John P. Neblett, Esquire Supreme Court I.D. No. 80036 Randall L. Wenger, Esquire Supreme Court I.D. No. 86537 4660 Trindle Road, Suite 200 Camp Hill, PA 17011 Phone: (717) 737-2430 Facsimile: (717) 737-2452 Email: debele .dennisbovlelaw.com jp,neblettlaw.com rlwengerndennisboylelaw.com Counsel For: Estate of Louise I. Kapp ESTATE OF LOUISE I. KAPP : IN THE COURT OF COMMON PLEAS by and through the Executrix, : CUMBERLAND COUNTY, PENNSYLVANIA HELEN E. RANK, Plaintiff V. :NO. 10-2371 ALLSTATE LIFE INSURANCE COMPANY, METLIFE INVESTORS USA INSURANCE COMPANY, and CIVIL ACTION -EQUITY KATHLEEN GILBERT, Defendants JURY TRIAL DEMANDED AMENDED COMPLAINT AND NOW comes the Executrix, Helen E. Rank, by and through her counsel, Dennis E. Boyle, Esquire, John P. Neblett, Esquire, Randall L. Wenger, Esquire, and the firm of Boyle, Neblett & Wenger, and makes the within Complaint against Kathleen Gilbert, Allstate Life Insurance Company, and MetLife Investors USA Insurance Company, and avers as follows: Helen E. Rank is the sister of Louise I. Kapp, who died testate on January 28, 2010. 3 2. On or about February 4, 2010, pursuant to the Will of the late Louise I. Kapp, the Register of Wills of Cumberland County appointed Mrs. Rank as the Executrix of the Estate of Louise I. Kapp. A copy of the Certificate of Grant of Letters is attached hereto as Exhibit "A". 3. The Defendant, Kathleen (Marbach) Gilbert, is an adult individual currently residing at 231 Bosler Avenue, Lemoyne, Cumberland County, Pennsylvania. 4. The Defendant, Allstate Life Insurance Company (hereinafter "Allstate"), is a corporation with its principal offices located at 2775 Sanders Road, Northbrook, Illinois 60062. Allstate currently holds an annuity in the amount of $430,478.25, the proper person to receive these funds being in dispute. 5. The Defendant, MetLife Investors USA Insurance Company (hereinafter "MetLife"), is a corporation with its principal offices located at 22 Corporate Plaza, Newport Beach, CA 92660. MetLife currently holds an annuity in the amount of $54,529.61, the proper person to receive these funds being in dispute. 6. Louise I. Kapp, during all of her adult life, resided with her husband, Marlet R. Kapp, until his death in 2003. 7. Throughout her life, Mrs. Kapp relied upon her husband, Marlet, to make all financial decisions and to manage the finances of the family. Because of her lack of financial sophistication, Mrs. Kapp was forced to rely upon others for financial advice. 8. While her husband was still alive, Mr. and Mrs. Kapp maintained a number of different bank accounts in a number of banking institutions. These accounts were normally savings 4 accounts that returned a fixed interest rate. The exact amount of funds held in this manner is not precisely known, but is believed to have exceeded $500,000.00. 9. By 2004, Mrs. Kapp (who was born in 1925) was in a severely weakened mental state due to the loss of her husband after a lifetime of marriage, the onset of dementia, and advanced old age. 10. At the time of her husband's death, Mrs. Kapp did not know what a bank statements was, where financial paperwork was kept, how to review her mail, or know how to write a check. 11. Because of Mrs. Kapp's debilitated state, she paid Defendant Kathleen (Marbach) Gilbert to do her cleaning, go through her mail, write her checks, and take care of her finances. 12. Mrs. Kapp believed that she did not need to take care of anything. Ms. Gilbert used Mrs. Kapp's reliance on her to benefit herself rather than Mrs. Kapp. 13. Ms. Gilbert had Mrs. Kapp open a MetLife annuity on July 10, 2004 and took advantage of her by having her designate "Kathleen Marbach", identified as "friend/POA" as the sole beneficiary of the annuity. A copy of the application is attached as Exhibit B. 14. Ms. Gilbert had Mrs. Kapp close nearly all of her bank accounts and used a portion of those funds to purchase an "Allstate Advantage Plus Annuity" in January of 2005 and to add to that annuity over time. Ms. Gilbert then took further advantage of Mrs. Kapp by having her designate "Kathleen Marbach", identified as "friend/POA" as the sole beneficiary of that annuity. A copy of said application is attached hereto as Exhibit "C". 15. At the time that the annuities were purchased, Mrs. Kapp did not understand what an annuity was. When additional funds were transferred to the Allstate annuity, she thought that she was 5 transferring them to a bank account. She had no idea that what she understood as bank accounts had beneficiaries separate from what was in her will. 16. Mrs. Kapp had executed a Will on January 9, 2004, a copy of which is attached hereto as Exhibit "D". The Will provided that her estate would be left to her relatives. It is believed that Mrs. Kapp intended for her entire estate, including the funds in the annuity, to be distributed in accordance with her Will. 17. After the annuities were purchased, family members were not informed of the financial transactions. 18. It was only by accident, around the time of Mrs. Kapp's death, that Mrs. Kapp's family discovered the existence of the Allstate annuity. 19. Ms. Gilbert first denied knowledge about her status as beneficiary of the annuity and said she would give the family the proceeds and then offered to give Helen Rank, the Executrix, half. Mrs. Rank declined, claiming that it should be split equally with the family members. 20. Ms. Gilbert still tried to execute paperwork as Power of Attorney to give 25% to Mrs. Rank, without Mrs. Rank's knowledge or consent. 21. The existence of the MetLife annuity was only now discovered. 22. From the time of her husband's death, Mrs. Kapp was confused about many things. She would not only repeat her conversations, but repeat the messages she left on answering machines multiple times. She lost her understanding of time, often failing to realize even the approximate time of day or the day of the week. She stopped caring for herself and would put dirty dishes in the refrigerator and cupboards rather than in the dishwasher. 6 23. Defendant Gilbert was in a confidential and/or fiduciary relationship with Mrs. Kapp. 24. Defendant Gilbert exercised undue influence over Mrs. Kapp, causing her to designate her as a beneficiary of the Allstate annuity valued at $430,478.25 and the MetLife annuity valued at $54,529.61. 25. Defendant Gilbert diverted funds belonging to Mrs. Kapp for her own use. 26. Following Mrs. Kapp's death, Defendant Gilbert entered Mrs. Kapp's home and removed jewelry and other personal property of the Estate of Louise I. Kapp. COUNT I Breach of Fiduciary Duty 27. The preceding paragraphs are incorporated by reference as if fully restated herein. 28. Defendant Gilbert owed a fiduciary duty to Louise I. Kapp due to Mrs. Kapp paying her to act on her behalf. 29. Defendant Gilbert breached the fiduciary duty she owed to Louise I. Kapp by placing her own interests over the interests of Mrs. Kapp to the detriment of Mrs. Kapp and her estate. WHEREFORE, Helen E. Rank, Executrix of the Estate of Louise I. Kapp, respectfully requests that this Court: A. Temporarily and permanently enjoin Allstate and MetLife from paying any funds to Defendant, Kathleen (Marbach) Gilbert; B. Direct that Allstate and MetLife pay all amounts due under the annuity contract to the Estate of Louise I. Kapp; 7 C. Enter judgment in favor of the Estate of Louise I. Kapp in an amount to be determined; D. Award the Estate of Louise I. Kapp reasonable attorney fees, the costs of suit, and punitive damages; and, E. Grant such other relief as the Court deems necessary and proper. COUNT II Undue Influence 30. The preceding paragraphs are incorporated by reference as if fully restated herein. 31. Defendant Gilbert was the dominant party in a confidential relationship with Louise I. Kapp. 32. Defendant Gilbert acted as Mrs. Kapp's Power of Attorney and made financial decisions for Mrs. Kapp. 33. Defendant Gilbert placed herself in a position where she could take advantage of Mrs. Kapp. 34. Defendant Gilbert in fact took advantage of Mrs. Kapp, her weakened mental state, and her complete reliance in order to attempt to obtain $430,478.25 from the Allstate annuity and another $54,529.61 from the MetLife annuity for her own use. WHEREFORE, Helen E. Rank, Executrix of the Estate of Louise I. Kapp, respectfully requests that this Court: 8 A. Temporarily and permanently enjoin Allstate and MetLife from paying any funds to Defendant, Kathleen (Marbach) Gilbert; B. Direct that Allstate and MetLife pay all amounts due under the annuity contract to the Estate of Louise I. Kapp; C. Enter judgment in favor of the Estate of Louise I. Kapp in an amount to be determined; D. Award the Estate of Louise I. Kapp reasonable attorney fees, the costs of suit, and punitive damages; and, E. Grant such other relief as the Court deems necessary and proper. COUNT HI Unjust Enrichment 35. The preceding paragraphs are incorporated by reference as if fully restated herein. 36. Defendant Gilbert had Mrs. Kapp sign paperwork that ultimately named her the beneficiary of two annuities, which she had Mrs. Kapp fund. 37. Defendant Gilbert should not benefit from those annuities because Mrs. Kapp did not realize that she was benefitting Defendant Gilbert in this way. 38. Defendant Gilbert did not give Mrs. Kapp value equivalent to the benefit Defendant Gilbert retained. 39. It would be inequitable and unjust for Defendant Gilbert to retain this benefit. 9 WHEREFORE, Helen E. Rank, Executrix of the Estate of Louise I. Kapp, respectfully requests that this Court: A. Temporarily and permanently enjoin Allstate and MetLife from paying any funds to Defendant, Kathleen (Marbach) Gilbert; B. Direct that Allstate and MetLife pay all amounts due under the annuity contract to the Estate of Louise I. Kapp; C. Enter judgment in favor of the Estate of Louise I. Kapp in an amount to be determined; D. Award the Estate of Louise I. Kapp reasonable attorney fees, the costs of suit, and punitive damages; and, E. Grant such other relief as the Court deems necessary and proper. BOYLE, NEBLETT & WENGER Dennis E-.Ift f le, Esquire Supreme Court I.D. No. 49618 John P. Neblett, Esquire Supreme Court I.D. No. 80036 Randall L. Wenger, Esquire Supreme Court I.D. No. 86537 4660 Trindle Road, Suite 200 Camp Hill, PA 17011 Phone: (717) 737-2430 Fax: (717) 737-2452 Email: deboyleadennisboylelaw.com jpna,neblettlaw.com rlwenger2dennisboylelaw.com Dated: April 13, 2010 10 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I am serving upon all persons listed below a true and correct copy of foregoing document in the above captioned matter. By First Class mail to: Kathleen Gilbert 231 Bosler Avenue Lemoyne, Pennsylvania Attn: Margaret Dow Allstate Life Insurance Company 2775 Sanders Road Northbrook, Illinois 60062 By First Class mail return receipt requested pursuant to Pa.R.Civ.P. 403 and 404(2): MetLife Investors USA Insurance Company P.O. Box 295 Des Moines, IA 50301-0295 Also sent without exhibits via facsimile to 51 5 457 4400 Dated: April 13, 2010 BOYLE, NEBLETT & WENGER Penny A. Rogers, Paral ' al BOYLE, NEBLETT & WENGER Dennis E. Boyle, Esquire Supreme Court I.D. No. 49618 John P. Neblett, Esquire Supreme Court I.D. No. 80036 Randall L. Wenger, Esquire Supreme Court I.D. No. 86537 4660 Trindle Road, Suite 200 Camp Hill, PA 17011 Phone: (717) 737-2430 Facsimile: (717) 737-2452 Email: debo yleadennisboylelaw.com jpngneblettlaw.com rlwengergdennisboylelaw. com Counsel For: Estate of Louise I. Kapp ESTATE OF LOUISE I. KAPP by and through the Executrix, HELEN E. RANK, Plaintiff V. ALLSTATE LIFE INSURANCE COMPANY, METLIFE INVESTORS USA INSURANCE COMPANY, and KATHLEEN GILBERT, Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 10-2371 CIVIL ACTION -EQUITY JURY TRIAL DEMANDED PLAINTIFF'S PETITION FOR PRELIMINARY INJUNCTION AGAINST METLIFE INVESTORS USA INSURANCE COMPANY AND NOW comes the Executrix, Helen E. Rank, by and through her counsel, Randall L. Wenger, Esquire, and the firm of Boyle, Neblett & Wenger, and respectfully petitions this Honorable Court to grant injunctive relief against MetLife Investors USA Insurance Company pursuant to Rule 1531 of the Pennsylvania Rules of Civil Procedure for the following reasons: 1. On April 9, 2010, Plaintiff filed a Complaint. On April 13, 2010, Plaintiff filed a Motion to Amend along with a Proposed Amended Complaint. The Amended Complaint (not containing exhibits) is attached as Exhibit A. 2. On April 9, 2010, Plaintiff also filed a Petition for Preliminary Injunction against Allstate Insurance Company in order to prevent payment of an annuity death benefits to the named beneficiary due to Plaintiffs belief that the beneficiary was not properly named. 3. Judge M.L. Ebert has reviewed that matter and is setting it for a hearing. 4. Plaintiff discovered a second annuity, this time with MetLife Investors USA Insurance Company (hereinafter "MetLife"), and therefore files a second Petition for Preliminary Injunction, this time against MetLife. 5. As stated in the Complaint, the Second Affidavit of Helen E. Rank, attached as Exhibit B, and Affidavit of Brian Ierley, attached as Exhibit C: a. Helen E. Rank is the sister and Executrix of Louise I. Kapp, who died testate on January 28, 2010. A copy of the Certificate of Grant of Letters is attached as Exhibit D. b. MetLife, currently holds an annuity in the amount of $54,529.61, the proper person to receive these funds being in dispute. See statement attached as Exhibit E. C. By 2004, Mrs. Kapp was in a severely weakened mental state due to the loss of her husband after a lifetime of marriage, the onset of dementia, and advanced old age. d. She did not know what a bank statement was, where financial paperwork was kept, how to review her mail, or how to write a check. 2 e. Because these subject were beyond her capabilities, she paid Defendant Kathleen (Marbach) Gilbert, a neighbor, to go through her mail, write her checks, and take care of her finances. f. Mrs. Kapp believed that she did not need to take care of anything. Ms. Gilbert used this reliance to benefit herself rather than Mrs. Kapp. g. Ms. Gilbert had Mrs. Kapp purchase a MetLife annuity on July 10, 2004, and had her designate "Kathleen Marbach", identified as " friend/POA," as the sole beneficiary. Application attached as Exhibit F. h. She did not understand what an annuity was, that she had opened an annuity, or that she designated Ms. Gilbert to receive any proceeds from the annuity. i. She believed that she only had bank accounts. j. She had no idea that the "bank account" was to be distributed other than according to her Will at her death. k. Mrs. Kapp had also made a Will on January 9, 2004, a copy of which is attached hereto as Exhibit G. 1. The Will provided that her estate would be left entirely to her siblings and her late husband's siblings. M. Mrs. Kapp often repeated that only the siblings were to receive her assets when she died. n. Plaintiff just learned about the existence of the MetLife annuity. 3 o. By July of 2004, when the annuity was created, Mrs. Kapp was confused not only about her finances but about many things. P. She would call family members and immediately call up again to have the same conversation. She would often leave the same message on an answering machine many times in a row. q. She did not remember that people visited her within 10 minutes after people were gone. r. She would ask her nephew to come mow her lawn even though he had just done so and talked with her. S. She did not even have the mental faculties to be able to care for herself. She would put dirty dishes in the refrigerator or the cupboards. t. She stopped using the bath and had crusted food on her clothes. U. She would even sit in front of the TV at 9 in the morning waiting for her favorite show to come on at 6 in the evening with no concept that it was a different time of the day. V. She would go to her favorite restaurant before they opened for breakfast and wait for them to serve lunch. W. Similarly, if someone said they would come and visit, she would immediately wait at the window, even if the visit was much later, because she had no concept about time. X. She often did not know what day of the week it was. 4 6. Defendant Gilbert exercised undue influence over Mrs. Kapp, causing her to designate her as a beneficiary of an annuity that she did not even know she owned. 7. "Because the occurrence of undue influence is so often obscured by both circumstance and design, our Courts have recognized that its existence is best measured by its ultimate effect. Thus, the Courts' holdings establish a presumption of undue influence when the evidence demonstrates: (1) that a person or persons in a confidential relationship with a testator or grantor has (2) received a substantial portion of the grantor's property, and (3) that the grantor suffers from a weakened intellect." Owens v. Mazzei, 847 A.2d 700, 706 (Pa. Super. 2004) (citing In re Estate of Clark, 461 Pa. 52, 334 A.2d 628, 632 (1975)). 8. Defendant Gilbert was in a confidential relationship with Mrs. Kapp. 9. "[I]f there be any clearer indicia of a confidential relationship than the giving by one person to another of a power of attorney over the former's entire life savings, this Court has yet to see such indicia." Estate of Clark, 461 Pa. at 63 (quoting Foster v. Schmitt, 429 Pa. 102, 108, 239 A.2d 471, 474 (1968)). 10. Defendant Gilbert was listed as a power of attorney on the MetLife paperwork on July 10, 2004, when the annuity paperwork was executed making Defendant Gilbert the beneficiary. 11. "A confidential relationship exists when the circumstances make it certain the parties do not deal on equal terms, but, on the one side there is an overmastering influence, or, on the other, weakness, dependence or trust, justifiably reposed. [It] is marked by such a disparity in position that the inferior party places complete trust in the superior party's advice and seeks no other counsel, so 5 V as to give rise to a potential abuse of power." Estate of Fritts, 906 A.2d 601, 608 (Pa. Super. 2006) (internal quotations omitted). 12. Mrs. Kapp was weak, dependant, and trusting and sought no other counsel than that of Defendant Gilbert. 13. A "confidential relation `is not restricted to any specific association of persons nor confined to technical cases of fiduciary relationship but is deemed to exist whenever the relative position of the parties is such that one has power and means to take advantage of or exercise undue influence over the other."' Owens, 847 A.2d at 709-710 (quoting Young v. Kaye, 443 Pa. 335, 279 A.2d 759, 763 (1971)). 14. Defendant Gilbert had the power and means to take advantage and exercise undue influence over Mrs. Kapp. 15. If the beneficiary designation is not set aside, Defendant Gilbert will have received a significant portion of Mrs. Kapp's property. 16. Mrs. Kapp suffered from a weakened intellect. 17. "` [W]eakened mentality as relevant to undue influence need not amount to testamentary incapacity.' Consequently, the grantor's mental condition at the moment he authorized the transfer of his property is `not as significant when reflecting upon undue influence as it is when reflecting upon testamentary capacity. "' Owens, 847 A.2d at 707 (quoting Estate of Clark, 334 A.2d at 634). 6 18. "Although our cases have not established a bright-line test by which weakened intellect can be identified to a legal certainty, they have recognized that it is typically accompanied by persistent confusion, forgetfulness and disorientation." Id. 19. Mrs. Kapp was confused and disoriented about even basic financial matters during the entire period where she was receiving "help" from Defendant Gilbert, which is why she was seeking help in the first place. She failed to comprehend the nature of the annuity or its implications. Moreover, she quickly forgot and lost sight of even basic everyday circumstances. 20. For these reasons, Defendant Gilbert exercised undue influence over Mrs. Kapp. 21. Defendant Gilbert also breached her fiduciary duty toward Mrs. Kapp. 22. An "agent is subject to a duty of loyalty to act only for the principal's benefit." Basile v. H & R Block, Inc., 761 A. 2d 1115, 1120 (Pa. 2000) (quoting Sutliff v. Sutliff, 515 Pa. 393, 404, 528 A.2d 1318, 1323 (1987)). 23. Mrs. Kapp paid Defendant Gilbert to look out for her interests. 24. Defendant Gilbert, however, looked out for her own benefit rather than Mrs. Kapp's benefit, and this failure injured Mrs. Kapp's Estate. 25. Defendant Gilbert is designated to receive the proceeds of the MetLife annuity. 26. The Estate of Mrs. Kapp will be irreparably harmed if the status quo changes and proceeds are paid to Defendant Gilbert. 27. Greater injuries will be inflicted upon Plaintiff by the denial of the relief requested than will be inflicted upon Defendants by the granting thereof. 28. MetLife will suffer no injury by continuing to hold the funds. 7 29. Defendant Gilbert will essentially suffer no injury since MetLife will be preserving the funds for to final disposition of this matter. 30. The public interest will not be adversely affected by the granting of relief. 31. The Estate of Mrs. Kapp has no adequate remedy at law because if the funds are paid to Defendant Gilbert, they may completely disappear. 32. No prior application to this Court for such relief or similar relief has been made by the plaintiff. 33. Because the requested relief does not adversely affect Kathleen Gilbert, Allstate or MetLife, only a minimal bond should be required. 34. MetLife, Allstate, and Kathleen Gilbert were made aware that this Petition was being filed and consent was sought. None of the above responded concerning consent. 8 WHEREFORE, Plaintiff requests that this Court grant its Petition for Preliminary Injunction and enjoin MetLife from paying the proceeds of Mrs. Kapp's annuity until the final disposition of this matter. Respectfully submitted, BOYLE, NEBLETT & WENGER Dennis E. Boy e, squire Supreme Court I.D. No. 49618 John P. Neblett, Esquire Supreme Court I.D. No. 80036 Randall L. Wenger, Esquire Supreme Court I.D. No. 86537 4660 Trindle Road, Suite 200 Camp Hill, PA 17011 Phone: (717) 737-2430 Fax: (717) 737-2452 Email: deboylena dennisbovlelaw com jpn@neblet:tlaw.com rlwenaer dennisbovlelaw com Dated: April 13, 2010 9 Verification Subject to 18 P.S. § 4904, relating to unsworn falsifications to authorities, I, Helen E. Rank, state that I have reviewed the foregoing Petition for Preliminary Injunction, and the allegations contained therein are true and correct to the best of my personal knowledge, information and belief. Dated:. Helen E. Rank Executrix of the Estate of Louise Kapp 10 EXHIBIT "A" BOYLE, NEBLETT & WENGER Dennis E. Boyle, Esquire Supreme Court I.D. No. 49618 John P. Neblett, Esquire Supreme Court I.D. No. 80036 Randall L. Wenger, Esquire Supreme Court I.D. No. 86537 4660 Trindle Road, Suite 200 Camp Hill, PA 17011 Phone: (717) 737-2430 Facsimile: (717) 737-2452 Email: deboyleaa.dennisboylelaw.com j pnna.neblettlaw. com rlwenger@dennisbovlelaw.com Counsel For: Estate of Louise I. Kapp ESTATE OF LOUISE I. KAPP : IN THE COURT OF COMMON PLEAS by and through the Executrix, : CUMBERLAND COUNTY, PENNSYLVANIA HELEN E. RANK, Plaintiff V. : NO. 10-2371 ALLSTATE LIFE INSURANCE COMPANY, METLIFE INVESTORS USA INSURANCE COMPANY, and CIVIL ACTION -EQUITY KATHLEEN GILBERT, ; Defendants JURY TRIAL DEMANDED AMENDED COMPLAINT AND NOW comes the Executrix, Helen E. Rank, by and through her counsel, Dennis E. Boyle, Esquire, John P. Neblett, Esquire, Randall L. Wenger, Esquire, and the firm of Boyle, Neblett & Wenger, and makes the within Complaint against Kathleen Gilbert, Allstate Life Insurance Company, and MetLife Investors USA Insurance Company, and avers as follows: 1. Helen E. Rank is the sister of Louise I. Kapp, who died testate on January 28, 2010. 3 2. On or about February 4, 2010, pursuant to the Will of the late Louise I. Kapp, the Register of Wills of Cumberland County appointed Mrs. Rank as the Executrix of the Estate of Louise I. Kapp. A copy of the Certificate of Grant of Letters is attached hereto as Exhibit "A". 3. The Defendant, Kathleen (Marbach) Gilbert, is an adult individual currently residing at 231 Bosler Avenue, Lemoyne, Cumberland County, Pennsylvania. 4. The Defendant, Allstate Life Insurance Company (hereinafter "Allstate"), is a corporation with its principal offices located at 2775 Sanders Road, Northbrook, Illinois 60062. Allstate currently holds an annuity in the amount of $430,478.25, the proper person to receive these funds being in dispute. 5. The Defendant, MetLife Investors USA Insurance Company (hereinafter "MetLife"), is a corporation with its principal offices located at 22 Corporate Plaza, Newport Beach, CA 92660. MetLife currently holds an annuity in the amount of $54,529.61, the proper person to receive these funds being in dispute. 6. Louise I. Kapp, during all of her adult life, resided with her husband, Marlet R. Kapp, until his death in 2003. 7. Throughout her life, Mrs. Kapp relied upon her husband, Marlet, to make all financial decisions and to manage the finances of the family. Because of her lack of financial sophistication, Mrs. Kapp was forced to rely upon others for financial advice. 8. While her husband was still alive, Mr. and Mrs. Kapp maintained a number of different bank accounts in a number of banking institutions. These accounts were normally savings 4 accounts that returned a fixed interest rate. The exact amount of funds held in this manner is not precisely known, but is believed to have exceeded $500,000.00. 9. By 2004, Mrs. Kapp (who was born in 1925) was in a severely weakened mental state due to the loss of her husband after a lifetime of marriage, the onset of dementia, and advanced old age. 10. At the time of her husband's death, Mrs. Kapp did not know what a bank statements was, where financial paperwork was kept, how to review her mail, or know how to write a check. 11. Because of Mrs. Kapp's debilitated state, she paid Defendant Kathleen (Marbach) Gilbert to do her cleaning, go through her mail, write her checks, and take care of her finances. 12. Mrs. Kapp believed that she did not need to take care of anything. Ms. Gilbert used Mrs. Kapp's reliance on her to benefit herself rather than Mrs. Kapp. 13. Ms. Gilbert had Mrs. Kapp open a MetLife annuity on July 10, 2004 and took advantage of her by having her designate "Kathleen Marbach", identified as "friend/POA" as the sole beneficiary of the annuity. A copy of the application is attached as Exhibit B. 14. Ms. Gilbert had Mrs. Kapp close nearly all of her bank accounts and used a portion of those funds to purchase an "Allstate Advantage Plus Annuity" in January of 2005 and to add to that annuity over time. Ms. Gilbert then took further advantage of Mrs. Kapp by having her designate "Kathleen Marbach", identified as "friend/POA" as the sole beneficiary of that annuity. A copy of said application is attached hereto as Exhibit "C". 15. At the time that the annuities were purchased, Mrs. Kapp did not understand what an annuity was. When additional funds were transferred to the Allstate annuity, she thought that she was 5 transferring them to a bank account. She had no idea that what she understood as bank accounts had beneficiaries separate from what was in her will. 16. Mrs. Kapp had executed a Will on January 9, 2004, a copy of which is attached hereto as Exhibit "D". The Will provided that her estate would be left to her relatives. It is believed that Mrs. Kapp intended for her entire estate, including the funds in the annuity, to be distributed in accordance with her Will. 17. After the annuities were purchased, family members were not informed of the financial transactions. 18. It was only by accident, around the time of Mrs. Kapp's death, that Mrs. Kapp's family discovered the existence of the Allstate annuity. 19. Ms. Gilbert first denied knowledge about her status as beneficiary of the annuity and said she would give the family the proceeds and then offered to give Helen Rank, the Executrix, half. Mrs. Rank declined, claiming that it should be split equally with the family members. 20. Ms. Gilbert still tried to execute paperwork as Power of Attorney to give 25% to Mrs. Rank, without Mrs. Rank's knowledge or consent. 21. The existence of the MetLife annuity was only now discovered. 22. From the time of her husband's death, Mrs. Kapp was confused about many things. She would not only repeat her conversations, but repeat the messages she left on answering machines multiple times. She lost her understanding of time, often failing to realize even the approximate time of day or the day of the week. She stopped caring for herself and would put dirty dishes in the refrigerator and cupboards rather than in the dishwasher. 6 23. Defendant Gilbert was in a confidential and/or fiduciary relationship with Mrs. Kapp. 24. Defendant Gilbert exercised undue influence over Mrs. Kapp, causing her to designate her as a beneficiary of the Allstate annuity valued at $430,478.25 and the MetLife annuity valued at $54,529.61. 25. Defendant Gilbert diverted funds belonging to Mrs. Kapp for her own use. 26. Following Mrs. Kapp's death, Defendant Gilbert entered Mrs. Kapp's home and removed jewelry and other personal property of the Estate of Louise I. Kapp. COUNT I Breach of Fiduciary Duty_ 27. The preceding paragraphs are incorporated by reference as if fully restated herein. 28. Defendant Gilbert owed a fiduciary duty to Louise I. Kapp due to Mrs. Kapp paying her to act on her behalf. 29. Defendant Gilbert breached the fiduciary duty she owed to Louise I. Kapp by placing her own interests over the interests of Mrs. Kapp to the detriment of Mrs. Kapp and her estate. WHEREFORE, Helen E. Rank, Executrix of the Estate of Louise I. Kapp, respectfully requests that this Court: A. Temporarily and permanently enjoin Allstate and MetLife from paying any funds to Defendant, Kathleen (Marbach) Gilbert; B. Direct that Allstate and MetLife pay all amounts due under the annuity contract to the Estate of Louise I. Kapp; 7 C. Enter judgment in favor of the Estate of Louise I. Kapp in an amount to be determined; D. Award the Estate of Louise I. Kapp reasonable attorney fees, the costs of suit, and punitive damages; and, E. Grant such other relief as the Court deems necessary and proper. COUNT II Undue Influence 30. The preceding paragraphs are incorporated by reference as if fully restated herein. 31. Defendant Gilbert was the dominant party in a confidential relationship with Louise 1. Kapp. 32. Defendant Gilbert acted as Mrs. Kapp's Power of Attorney and made financial decisions for Mrs. Kapp. 33. Defendant Gilbert placed herself in a position where she could take advantage of Mrs. Kapp. 34. Defendant Gilbert in fact took advantage of Mrs. Kapp, her weakened mental state, and her complete reliance in order to attempt to obtain $430,478.25 from the Allstate annuity and another $54,529.61 from the MetLife annuity for her own use. WHEREFORE, Helen E. Rank, Executrix of the Estate of Louise I. Kapp, respectfully requests that this Court: 8 A. Temporarily and permanently enjoin Allstate and MetLife from paying any funds to Defendant, Kathleen (Marbach) Gilbert; B. Direct that Allstate and MetLife pay all amounts due under the annuity contract to the Estate of Louise I. Kapp; C. Enter judgment in favor of the Estate of Louise I. Kapp in an amount to be determined; D. Award the Estate of Louise I. Kapp reasonable attorney fees, the costs of suit, and punitive damages; and, E. Grant such other relief as the Court deems necessary and proper. COUNT III Unjust Enrichment 35. The preceding paragraphs are incorporated by reference as if fully restated herein. 36. Defendant Gilbert had Mrs. Kapp sign paperwork that ultimately named her the beneficiary of two annuities, which she had Mrs. Kapp fund. 37. Defendant Gilbert should not benefit from those annuities because Mrs. Kapp did not realize that she was benefitting Defendant Gilbert in this way. 38. Defendant Gilbert did not give Mrs. Kapp value equivalent to the benefit Defendant Gilbert retained. 39. It would be inequitable and unjust for Defendant Gilbert to retain this benefit. 9 WHEREFORE, Helen E. Rank, Executrix of the Estate of Louise I. Kapp, respectfully requests that this Court: A. Temporarily and permanently enjoin Allstate and MetLife from paying any funds to Defendant, Kathleen (Marbach) Gilbert; B. Direct that Allstate and MetLife pay all amounts due under the annuity contract to the Estate of Louise I. Kapp; C. Enter judgment in favor of the Estate of Louise I. Kapp in an amount to be determined; D. Award the Estate of Louise I. Kapp reasonable attorney fees, the costs of suit, and punitive damages; and, E. Grant such other relief as the Court deems necessary and proper. Dated: April 13, 2010 BOYLE, NEBLETT & WENGER f Dennis le, Esquire Supreme Court I.D. No. 49618 John P. Neblett, Esquire Supreme Court I.D. No. 80036 Randall L. Wenger, Esquire Supreme Court I.D. No. 86537 4660 Trindle Road, Suite 200 Camp Hill, PA 17011 Phone: (717) 737-2430 Fax: (717) 737-2452 Email: debovle(a?dennisbovlelaw n- jpn@neblettlaw.com com rlwenserna dennisboylelaw com 10 EXHIBIT "B" ESTATE OF LOUISE I. KAPP by and through the Executrix, HELEN E. RANK, Plaintiff V. ALLSTATE LIFE INSURANCE COMPANY and KATHLEEN GILBERT, Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL ACTION -LAW JURY TRIAL DEMANDED SECOND AFFIDAVIT OF HELEN E. RANK 1. 2. 3. 4. 5 6. 7 I, HELEN E. RANK, hereby swear and depose as follows: I make this declaration upon my personal knowledge of the facts, and am competent to testify to the facts stated herein. I am a citizen of the United States and a resident of Middletown, Pennsylvania. I am the sister of Louise I. Kapp, who died January 28, 2010, and I am the Executrix of her estate. I visited Louise at least once a week, although when my husband and I were dealing with health issues, it was only once or twice a month. Even when I did not visit, I spoke with her daily. Louise lived with her husband, Marlet R. Kapp, until he died in 2003. Louise relied on Marlet to take care of all their finances including simple tasks like writing checks. Marlet made me aware that he had various bank accounts. However, after Marlet's death, Louise told me that she did not know where the bank accounts were or in whose names the accounts were held. 8. She did not even know what a bank statement was or where any records were kept. 9. I helped her look around the house for paperwork from the bank and discovered a pile of unopened mail that had accumulated during the sickness of her husband. On that pile I found a statement from one of the bank accounts and tried to explain it to her. 10. I told her we needed to call the bank to find out information about the account. I tried to help her, but she was physically shaking when we needed to call the bank. 11. I found that she did not even know how to use her checkbook. 12. She told me that she did not want to learn how to do these tasks. 13. Because she did not know how to do and could not do these simple tasks like going through mail or using the bank, she relied upon her neighbor, Kathleen Marbach (now Kathleen Gilbert), to write checks and make financial decisions. 14. She paid Kathleen $20 per day to go through her mail for her. 15. She told me that Kathleen would take care of everything for her and said, "I don't have to worry about nothing." 16. She later told us that Kathleen was asking her to sign lots of papers. I asked her what it was about. She said she was not sure but that it had to do with transferring her money into one savings account, which she could pull from if she ever needed to go to a nursing home. 17. Around the time of Louise's death, Brian Ierley, and I went to Louise's home and noticed a letter from Allstate.(Brian is a nephew to both Louise and me.) 18. Brian called Kathleen in response to the letter and she told us not to open it. 19. In part because of Kathleen's response, we opened the letter and discovered that the bulk 2 of Louise's funds were not transferred into a savings account, but into an annuity, formed on January 15, 2005, which named Kathleen as the beneficiary. 20. The annuity was valued at $430,478.25. 21. Brian called Kathleen back, and she stated that she was shocked and that she knew nothing about it. She even stated that she would turn it all over. 22. Kathleen then called back and said that she checked into it and said, "I think your aunt wanted Helen to get half and me to get half." 23. Louise had a will drafted shortly after her husband's death. She made it clear at that time that she wanted all of her siblings and all of her husband's siblings to get equal shares of the estate because that was what her husband had wanted. 24. She often repeated that she wanted her assets to be divided in that way. 25. For that reason, when Kathleen tried to split the annuity with me, I told her that such a split would be wrong because the siblings were to receive the annuity in equal shares. 26. Despite what I said and without any approval from me, Kathleen tried to use her Power of Attorney to give me 25% of the annuity. (You can see on the paperwork that she first tried to give me 35% and then scratched that out.) 27. I also found paperwork concerning a second annuity, this one from MetLife, currently valued at $54,529.61. 28. The sole beneficiary of this annuity is also Kathleen. 29. Louise never understood that she had anything other than bank accounts or that assets would be transferred other than through the will. 30. She told us that she had a savings account and that she would take the money out if she 3 ever needed it. 31. She repeated often that the siblings and only the siblings would equally divide her assets. 32. Louise did not and could not comprehend details such as the difference between a savings accounts and annuities with a beneficiary. 33. While she remembered how her late husband wanted the will divided, a subject they talked about for years, her mental state deteriorated after her husband's death. 34. After her husband died and by the time this annuity was created, she was confused not only about her finances but about many things. 35. She would call family members and immediately call up again to have the same conversation. She would often leave the same message on an answering machine many times in a row. 36. She did not remember that people visited her within 10 minutes after people were gone. 37. She would ask Brian to come mow her lawn even though he had just done so and talked with her. 38. She did not even have the mental faculties to be able to care for herself. She would put dirty dishes in the refrigerator or the cupboards. 39. She stopped using the bath and had crusted food on her clothes. 40. She was even afraid to use the remote control for her television and became agitated at the suggestion about trying to use the various buttons. 41. She would even sit in front of the TV at 9 in the morning waiting for her favorite show to come on at 6 in the evening with no concept that it was a different time of the day. 42. She would go to her favorite restaurant before they opened for breakfast and wait for 4 them to serve lunch. 43. Similarly, if someone said they would come and visit, she would immediately wait at the window, even if the visit was much later, because she had no concept about time. 44. She often did not know what day of the week it was. 45. She eventually was so disconnected from reality that in walking away from her brother's funeral, she asked someone to grab him so that they could go get something to eat. 46. Although Louise never had a medical diagnosis of dementia, there was never the opportunity for such a diagnosis because she refused to go to the doctor. I declare under penalty of perjury that the foregoing is true and correct. Dated: April L-?, 2010 HELEN E. RANK Sworn to and subscribed before me this 13 +.%- day of April, 2010 Notary Public My Commission Expires: NOTARIAL Penny A. Rogers, Notary Public City of Camp Hill, Cumberland County My commission expires June 29, 2010 5 EXHIBIT "C" ESTATE OF LOUISE I. KAPP by and through the Executrix, HELEN E. RANK, Plaintiff V. ALLSTATE LIFE INSURANCE COMPANY and KATHLEEN GILBERT, Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL ACTION -LAW JURY TRIAL DEMANDED AFFIDAVIT OF BRIAN IERLEY I. 2. 4. 5. 6. 7. 8. 9. 10. I, BRIAN IERLEY, hereby swear and depose as follows: I make this declaration upon my personal knowledge of the facts, and am competetit to testify to the facts stated herein. I am a citizen of the United States and a resident of Middletown, Pennsylvania. I am the nephew of Louise I. Kapp, who died January 28, 2010. I am the son of her brother Charles Ierley. I saw and spoke to my Aunt Louise several times a month. Aunt Louise lived with her husband, Marlet R. Kapp, until he died in 2003. Aunt Louise relied on Uncle Marlet to take care of all their finances including simple tasks like writing checks. Because she did not know how to do and could not do simple tasks like going through mail or, using the bank, she relied upon her neighbor, Kathleen Marbach (now Kathleen Gilbert), to write checks and make financial decisions. She paid Kathleen $20 per day to go through her mail for her. She told me that Kathleen would take care of everything for her. Aunt Louise said that Kathleen transferred her money into one savings account, which she could pull from if she ever needed to go to a nursing home. 11. Around the time of Aunt Louise's death, Helen Rank (my aunt) and I went to Aunt Louise's home and noticed a letter from Allstate. 12. I called Kathleen in response to the letter and she told us not to open it. 13. In part because of Kathleen's response, we opened the letter and discovered that the bulk of Louise's funds were not transferred into a savings account, but into an annuity, formed on January 15, 2005, which named Kathleen as the beneficiary. 14. The annuity was valued at $430,478.25. 15. I called Kathleen back, and she stated that she was shocked and that she knew nothing about it. She even stated that she would turn it all over to the family. 16. Kathleen then called back and said that she checked into it and said, "I think your atlnt wanted Helen to get half and me to get half." 17. Aunt Louise had a will drafted shortly after her husband's death. She made it clear-at time that she wanted all of her siblings and all of her husband's siblings to get equal shares of the estate because that was what her husband had wanted. 18. She often repeated that she wanted her assets to be divided in that way. 19. Aunt Louise never understood that she had an annuity or that assets would be transferred other than through the will. 20. She told us at the time that the moneys were transferred that she had a savings account and that she would take the money out if she ever needed it. 21. She repeated often that the siblings and only the siblings would equally divide her assets. 22. She would even say apologetically to me that she hoped I would continue to visit even 2 though everything was going to the siblings. 23. Aunt Louise did not and could not comprehend details such as the difference between a savings account and an annuity with a beneficiary. 24. While she remembered how my uncle wanted the will divided, a subject they talked about for years, her mental state deteriorated after his death. 25. By January of 2005, when the annuity was created, she was confused not only about her finances but about many things. 26. She would call family members and immediately call up again to have the same conversation. She would often leave the same message on an answering machine many times in a row. 27. She did not remember that people visited her within 10 minutes after people were gone. 28. She would ask me to come mow her lawn even though I had just done so and talked with her. 29. She did not even have the mental faculties to be able to care for herself. She would put dirty dishes in the refrigerator or the cupboards. 30. She stopped using the bath and had crusted food on her clothes. 31. She would even sit in front of the TV at 9 in the morning waiting for her favorite show to come on at 6 in the evening with no concept that it was a different time of the day. 32. She would go to her favorite restaurant before they opened for breakfast and wait for them to serve lunch. 33. Similarly, if someone said they would come and visit, she would immediately wait at the window, even if the visit was much later, because she had no concept about time. 34. She often did not know what day of the week it was. 35. She eventually was so disconnected from reality that in walking away from her brother's funeral, she asked someone to grab him so that they could go get something to eat. I declare under penalty of perjury that the foregoing is true and correct. Dated: April -7" 2010 RIAN IERLEY Sworn to and subscribed before me this ? ?01 day of April, 2010 ?1? I z!? Notary Public My Commission Expires: NOTARIAL SEAL Penny A. Rogers, Notary Public City of Camp Hill, Cumberland County My commission expires June 29, 2010 4 EXHIBIT "D" REGISTER OF WILLS CUMBERLAND COUNTY PENNSYLVANIA CERTIFICATE OF GRANT OF LETTERS No. 2010- 00114 PA No. 21-10-0114 Estate Of : LOU/SE I KAPP Mint, Middle, Last) Late Of : LEMOYNE BOROUGH CUMBERLAND COUNTY Deceased Social Securi ty No: 174-20-5184 WHEREAS, on the 4th day of February 2010 an instrument dated January 9th 2004 was admitted to probate as the last will of LOUISE / KAPP (First, Middle, Last) late of LEMOYNE BOROUGH, CUMBERLAND County, who died on the 28th day of January 2010 and, WHEREAS, a true copy of the will as probated is annexed hereto. THEREFORE, I, GLENDA FARNER STRASBAUGH Register of Wills in and for CUMBERLAND County, in the Commonwealth of Pennsylvania, hereby certify that I have this day granted Letters TESTAMENTARY to: HELEN E RANK who has duly qualified as EXECUTOR(R/X) and has agreed to administer the estate according to law, all of which fully appears of record in my office at CUMBERLAND COUNTY COURTHOUSE, CARLISLE, PENNSYL VAN/A. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of my office on the 4th day of February 2010. **NOTE** ALL NAMES ABOVE APPEAR (FIRST, MIDDLE, LAST) EXHIBIT "E" P, v v P 3 ? ® ?• + a N • • ° _? < CCO 1 m? rh i it n o. O C Q N M w W Fr a A O n ? N ti, 111 0 17 ? n ? o ° m ° " m O m a 0 K ?: n S S-0 C 0 •C A? W 9 m fog, j D]? Cn Sa ? m O O c S CD A 3 vcp 7C'm m 0 .. y 3 n R ? g?gn; f0 m ° w 3 -cog Al ? 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N C_ °o g 0 ?I o? m a 0 m a n o II v, 0li CD O 3 m a v v` 0 N 0 3 m m CL v Q 0 y _ v m m Q m Q 47 w s v v 0 CO) co W CL CL v S m a ? w Al ? N p? m o 3 o0 o ° c 5 00 o ° c c CI CL m? ? I N I p I ° v, ? I O as m ' a m m 3 Q. ?I s ei ?J1 1 s ?+ N J rfj ?o ? O lJ W N is R O p i ' nM ` J b J N O O O s ? A ? x m ` (0 o m W N z D m z m z 0 z D r r r m m W r D Z M m m m a 0 of EXHIBIT "F" ACCOUNT Appucum 1c 46 ism QPNCNVEsi . M.ar.tuso.a+sRC Mnuift wW odwr Intum a Products ore of rW Mmugh ANC/mmor a See? Inc (p efr` ? Q R Qorundhrrt Name Brarudr?Rrancbl Carwdtant Nwnber Altemeft 6nncANumbn IWAaeaarneapApfaraiaefrirrmitaMsela+Mebeetaerdesarrwae abdora ..?J?](a Account Type 0ed one ardy) Aocowe Class (lswA one ody) 4n* Account O Margin O Advi Vd And Account O Margin j?CkndividW O bweaws Prefeneds Account o Margin O Priority Account o Margin O Joint O with rights of survivorship O a tenants in common O Tranusfer on oeath Account o Margin O IRA - Traditional O Custodian (Assocattd Pason(s) Farm required) O IRA - SIMPLE O IRA - Roth O Trust O agreenent O will Kwodated Person(s) Form rW++ited) O IRA - SEP O Estate Amount Revoictlous (Additlonl doarmeft r c"Im4 Combine Stabunrent MM" Wdh Otlw Aeeoints O %vver of Attorney O Third-Party Trading Authorization As Sub of Account d O Tntst Certification O Rnancial Consultant Discretion As Parent of Account / stow lag hsa Rerndai Coenuehant known Appliuaruti' duct one Daly) Consultant petly met diem? O Less than t yew W1-5 years O more than 5 years O No WYes Nat was Account irdittW? (check one ordy) Transaction - Deseriiaiwk At O Can M d Walk In O Advertisement 4q ?? K?wrawn O Prospect O Refemi t APPL1CJfNr oNE . APPIJGINE TYPO (NOf APPUOAieu: PLaLL wla? la o.a of ewr M#Iraru Iot Dace or BNth - d- S O(a a t- n J-S fvY Name (Rust, Middle crud last Nuueud Hull Name (Fk% Middle and Lost Name) Aft Wiry" weer arides rowel caaMlek corn Aeosnt A*w&Om) Apt. i _ Address (Complete if different team W am Oae) Apt. (0--)6 M7. . Staoe ZIP Code Years There 9 city. Stm, ZIP Code Years These 1 &% (5-4 A.9L 111- Preriws Address gf%t eurtert address leas than t yearl unctions norm lit at crarart aeldren hs s flan l vw Cigl St ft DP Cade Qty. State, ZIP Code Occulmdorl r e- -i rr-? Oceupatlon Eagioya Name Employer Name Employer Mhb= Years There Employe Address Yeses Thee Are you a US Otiaad Are you s US Cftm? O No v No, Country of 0*wnship: O Yes O No If No. Country of Citizenship: and US DNS dusitication: O Resident Alien and US. DHS classification: O Resident Alias O Pennanent Resident O Pemanerrt Resident MsoeNN-raWdmeaVremust weNew-ftle*wtAftNowAorountAAWjcvdm NoWftweswweiknsweoweNm4ksWwtA mNewAw wrfAppkstkm. Tdephow OWN) 11-7 --1#3-18-7 $ Tdaphone Loflfal Telephone (horeee) Tdepheare WWI'- phoae FAX Numbs Other TeeOmw (mobile) FAX Number EmaN? Email Adduce Fonatunsearoe Will" - New Acaurns cwwv - Branch Office Fonder - Client f 0 Am" Income (deck an am Net Worth (c odudhig herrmd btlatabed UWW Assets Federal Tsx.Bradket product Knowledge ft 6rpaknee (eirock eN that apply) ? < $25,000 ? < 510000 an am ? io% ? Stocks Years Experience X$25000 - $39,999 ? $70,000 - $24,999 ? < $25M ? is% ? Bonds Years Experience O $40.000 - $48,999 ? S25000 - $48,999 O MOW - S49I999 b 1M O Mutual Funds Years Experience ? $%000 - $64,999 ? $50.000 - $799,999 (328% ? Annuities Years Experience ? $65,000 - $124,999 ? $200,000 -549 AN O 5100000 and Over ? 33% otiher - Explan y?;- C.D s 't'?t4,u.-eta ? $12S000 and Over 4UWAW and Over ? 35% prim y Investment Objective - Defkl-f on Reverse kheck one only) ? Income ? Tax-Favored Income ? Lag-Tenn GrovAh ? Short Sean Trading O Speculation ? Growth and income ? Growth with Occasional S peculation ? Income with Oeraslonal Speculation *?fflwvatbn of Principal ? Other (as defined) Are you or your spouse an btsift director or controlling Are you an aaplogeq or an inanedlate relative of an employee. of PNC Wwncial Soviets Group, Inc- stockholder in any pubHe cornpany7 Ah1 a ra0- 1, d broker-dale. & trust officer or director of a bank savings and ban, Insurance wmpw* irrastment advises, investment partnership or person supported by any of these fisted abovd ? Yes Company(ies) ? Yes 6tpghh 9nanmcal PhtwNrp tap Anapsis. k?ste If you have a nme:es or Nmterest in anal a ttte s0!ISwMg lclteesk ail mK applyl. ? Comprehensive Financial Flan ? Education Funding Program O Retirement Plan O Insurance Coverage ? Will (Year last updated ) ? Estate Plan +•• »^?a•r•• ••• •?!!: ::Walla ea.iaas nee paeans: Who Oivlden4 and/or bbereot b aNrmt? i'Aoki all funds: io4w securities in account 041old as instructed O in cash OR O In Money Market Fund named beow OR ? Send securities (Fees apply, See Fee Schedule.) O Reinvest when possible OR O Transfer funds: O Transfer funds from institution named OR ? Transfer to-the institution O Weedy O Monthly to; institution named below below to cover pub named below FUNDS TRANSFER OPTIONS (NOT A"LICAKE FOR MW 4tstItutioNBsnk Now ABA Rauft Nu mbei (attach voided check or deposit slip) ?Mxsmunt NOW IAmoutt fNenimn I Checking ? Savings I Money Market fund ? Hilliard-Lyas Government Fund ? with Checking (addL form required) O Blad&ck Municipal Fund (Hilliard Lyons Share ? Biac kRoclk Money Fund (Hilliard Lyons Shins) O BlaclAock Municipal Money Market Fund O Bladkitodk Pennsylvania Tax-Fm Mutual Fund )NC Bank FDIC-Insured Money Market Banking Account ? BWddtock Government Money Market Mutual Fund ? BlaekRodk Ohio Tax-F.r. wmlr A-1 E2 e1?w ...w ::... ? -acr wueneapan Money Market ? Other • By signing this appilcation, l cow umde penalties of pa airy that (1) the usaaI I shows an this form is ON cones tespoyer VNIMO K iIE71RBU W AOOO M ONLY: UP Ificatiant number (or1 am waiting fora number to be assignusl to meL and t$1 am not subject to badwp wfthhoWWV • 1 hereby adopt the bWMd ual Retleeuaertt Aooount becouse: a) I am esauvnpt (loinbackup whhholding, a b) i have not been OR, br the bent , l Ru veeue Soviet (IR5) that abase +rmd appoint J. J. 4 lillilard. NR L I am subject to baeiupwWwoldirg n a rat of a failure to report ailinterest or eNidlead. or eel the BfS has rhotiRed me ' 1"movo Lyossh as tJuslodiatt I amity "-w N s wilaut wharf doo is being made Pam an that 1 am no longer subject to backup witlthkldi g and 3) I am s tIS, person e g US. int. slier X ',erhtployvplam, asithts btdlviduN ReefilAmaitAaoamMkt ? I have been -IM A by the WS that 1 am subject to backup wltldalding beewae of is An tpatlig interest or *Adermds or on an lift this milm is being made wlgdn so L tl eifte, am not covered under provision 02 in the W-e Certification above. days of my rooeipt of the distribution, I andaalantd N I have al age 10 that 112 I in any g • err signing below, I admowledge flat I hoe been given a copy of the PNC Rnantelal Sevfees Group Consumer k4brinstion yen a yearn, or will do so this yea. 1 nay not romplo fie priweyy Principles pamphlet and understand its oontens indudhg the hnfonhtaIl l sharing options available to wan ? for his K m • In accordance with Federal securities taw, PNC lmnslmors or its torresporkder I *m may disclose my name to haven of that neid?a HBN na lave s duly to the p of securities held in my accaamt units I object to this dhdasmre by indicating Woos illwers ributiona, transfers or rollovers to this8ccwA aokshuat contributions, ? 1 object to dbdowae. • 1 have read and uiderstand the Traditional anow • N any ewaner of this sooounm h a PNC Invesbnenb employs, l ardwket dot employee to stare b my account Roth hmkddud Retireree 4 Account Qstodal Agreement and IRA Disclosure Stst WAft • By signing this sppiksti , l acknowledge that 1 understand and have fecdved a copy of the Account Terms and Conditbts, which Includes a Pmt-Dispute Arbitration clause appearkg in snide 10 and 11 of the Account Teams and Conditions. Also, by signing this ap11, -1 I understand that Investment products we not deposits orobiigadonus of, orgustameed by PHC Inve st mments or spry of its affiliates, nor are they insured by the FDIC I also understand that rove siments are subject to rsk indudbmg the full or partial ins of ony initial imesmme m. 1 also acknowledge rwdpt of a copy of this Account Applicadcn. grout 1 Dow Signaoae 2 Dote Corte bft Date Branch Manager Sigmbme Date ® •Why Lm VwUO The wida>iyNd het* so"Is eke hallo" Retirenalt Ae 4. - I I0and hymn Orkw Signals re Dace •NO $Aflk ?s'Ua aWe Custodial AileeaNntt FtlRa11213SMa4 VW to - New ACMlmtf eoraly - arakmdm Omen Fahder - xkMt INVESTOR DISCLOSURE AND ACKNOWLEDGMENT QPNC?IWE 't'ME1 i5 Me.is NASD wi sPe In connection with the sale of any investment product, [/we acknowledge. understand, and have had the opportunity to ask questions about the following: Securities and investment advisory services are provided by PNC Investments LLC, a registered broker-dealer. Annuities and insurance products are provided by PNC Insurance Services, Inc., a licensed insurance agency. Both of these entities are affiliates of PNC Bank, NA INVESTMENT AND INSURANCE PRODUCTS: • ore not deposits or obligations of, or guaranteed by PNC Bonk NA or any of its otfNiatrs, • are not Insured by the FDIC • am subject to investment risks, including the possible loss of the principal amount invested and • the derision to purchase investment or insurance products from affiliates of PNC Bank NA will not affect the cost or availability of other products or services from PNC Bonk NA VIYESTMENT RISK The value of securities and variable insurance products and annuities may change, depending upon market conditions Past results are not an indicator of future performance. Certain investments, such as annuities or unit investment trusts, may not be appropriate for short-tern needs. FEES AND EXPENSES Fees and expenses, including commissions, deferred sales and surrender charges and asset-based fees, are set forth in the prospectus, annuity or account agreement, as applicable. ANNUMES Annuities are obligations of the issuing insurance company, which is not affiliated with PNC Insurance Serving lnr_ nr PNr Ranir, N A ?iw ?au,.--2s .w_ tore mentioned companies. may, however, assume a portion of the underlying insurance risks and receive eompensadon for assuming such risks: The inmWerna eenrparrlr room the right to sell or transfer the annuity oWlgations Indudiag its obligations contained in the eorrtraet. Annuities hdd in an IRA account wM receive the same tax deferred benefits as those which are purchased and held outside of an IRA amounI. No additional tax benefits result from an annuity for an IRA account. Annuities are not insured or guwmrteed by any US. Government Agency. No charges or penalties apply to annuities cancelled during the "free-look" period, charges or penalties may apply to annuities cancelled after the "free- look' period. Withdrawals may be subject to federal and state tax penalties if received prior to age 591A. Fixed Annuities: The interest rate is determined by the insurance company, and will be effective for the periods stated in the annuity contract. If the fixed annuity is cancelled during a 'free-look' period, the principal will be refunded, but no interest is earned. Variable Annuities: Principal and earnings may vary, depending upon market conditions If the variable annuity is cancelled during the "free-look' period, the amount refunded may be less than original amount invested i have received a copy of the current contract prospectus and funds prospectuses and understand that I should review them carefully before Investing. MUTUAL RINDS .... • P--f,,.r iwni, i umieerstano tnat l should review a cop1V of the relevant pmipecy.is for complete information, Including all fees and expenses, pertaining to the mutual fund The prospectus 1 receive will describe any front or back-end sales charges If I purchase a fund with a back-end sales charge. l understand the difference between a front-end and back-end sales charge and if I purchase a fund with a back-end sales charge, I acknowledge that a back-end sales charge is appropriate for me. - . • AfTUiates and employees of PHC Investments receive compensation for providing investment advisory and other services to the BlackRock Funds" and Hilliard Lyons Funds CERTIFICATES OF DEPOSIT • The value of Certificates of Deposit sold by PNC Investments maybe more or less than the original amount invested if redeemed prior to rmatu* • Certificates of Deposit are covered by FDIC insurance, subject to the S100AW maximum and the rules and regulations of the WIC By signing this form, I/we acknowledge that Ijwe have read, understand, and have been verbally advised of the above disdosures and have had the opportunity to ask questions regarding these disclosures Nowurssaaoc f TERMS AND CONDITIONS M eaMdaads of PK Invaumb LLC (IMCM speedos a aeaou+t or amowns an Vow bdcalf wkh JAL MNrd, WL Lyas Inc. tour Itmtspaaent fkm'L who will emeaoe VLmwdoro and a" your account 40 Its boob all «ards and baJanhoe sheet you ague b tha faMowMq tuns ad cwAWaw t. AD hawebaaa *d bt subject b the rda, nepdatlom a mm and mops d the entha - mm*d r champ howl what erm"w d which PNC ihvves mmont t r lb arres1, 1,ek 1healo o memket ¦d b all "Oltxbk Moral sic stab fawn ad ppdalias You doll at IN tlmes be Mk far the ppmsM ups desod d asy dealt balance r otlm I'll 'i w owbq in sal of vm ammmis wM FK bheaaeh 1 - and ib ,- , I. fed lion. AM Seemica ad ode powty whaboaa width MC h wsunmis ad Its sahgmndmt firm may hold, cow or maihhlaihh for any pip" in of for any of vor aoacuhl? whole ihdhWuailyr jdp* heal with oleo; as K*d b s Nee far tie dkc, g p d d la Miltedm n dyad b pw Inveslneas r is eoeapondest Non r snl d sir efNMalec, suooerar a aosigmL M aiadiq or IkaMe rJastoepondentfboShahtong tlef"fjoacheWig%add*"asrSWIon of le secwibea or any ale property in dry of Vow aomems whm we dam k mxrwry fr sir phooeetiohh PNC Mvabsenb or In mnrpadmt flea ogees On right to clse bmaactless In yet aaoowMNitbe%evestlweisbsdupoftseco tforvowcbNp*mrWoaexMw"Moraphda? japmdim de dceount X Comnamladeas a" be sot to Van at year a 11 m, or at weh odw a " yon may huedho peolk and all communications se senc.dod be deemed Mhm to you pusasMy ukdo se - 111 eeceived r net fkpsis of the exextebow d order ad Sbl- , of yanr account shall be cahdrhe If amt ohjedd b in Wdit tm knew within fwe (a busbms dap ad the stkr W" ten till) WdrA s dap, door fonmdirq by hs to you by sal or otherwse 3. Udeas van fehenel adman Van molooflee INK Immum hehb or Is cwm pwmkm inn to boot ausnrlloMlr day cash Ja low slams b the many aarbet Mal deiphmtd an Me AcawM Appflalian. ? ThsdpfeeafmtshahbeMsomdbytlmI mdNmsbtedkmwileadaand*ANbanebadbeblimp Moan PNC loom" nos ad Its wccaeoas and awips and yaw Ades, sceeeeaom estates and drips L JONTACCOW-N theacmhmtowningshahesmdrtdsaetlonsaeirdivmffatysujoiWlsoldtavaeNy ague Mat mdh d you Shah be filly dal eshnpkteM rut , ibk wed Nobk fr the *K amdhHM ad pri an demand may debk bale= r Ism at say *w due an the account *A bo aadm* an bdol d dw jolt seem" b me* pwcI , old links, widuk w swell and seearitks. gal sic active msenwdastlas (vuktensd vesbdl efeery tkd, w dew 166 dw whk fPlot eceb tlm jobs ac cant: ad gemmNy to deal wkh PNC Mweabmmts a be1mN of the joint ore, n fk* ad esfempletey M lame _ theft wee 0 emrsh In "M .n w* A ..1ml t. ,w- - - PNC hRu mmue is m dmdsed to follow ft bsuaebam of my domwr holler In eery ag , - ameanMp 69 ram jam amount The M*W* knw amt shed 1 1 in fora"wring Heft of tlm efnoa., n Biased to PK bveusmnb Is 1e11 at ow main afMa. N MIC bweauehmb rmdva aaNMuiq hsauctim from you we a" follow am of side Mwuc*m r ptraM from eweelq ow soh hmuucllori WON they lame been reaerhft I bar ssddadon, all widaMt %Aft to "IC tnvobnmb and Ib mnapadmt Pow. JODIT 78M IS VIIIN MOMS OF SURtAVOp W. sad not as tomb in common or ri tewnb by the eKVM M the ore t d the deal d dine r any d the account homee6l iha ewht lsbeebt b inn jobs inmost del be vested in tlm vA-*w r swMom w tin swore temp and siaf '-, ri dwelofte hold. 7. TOM MMCOMMON-btherondthedo *ddowranydinsaccount hddua tdeedml"o I - , -btlma cmuntpumatohsllerestateadnetbtheowvivbgtaunt%Mhfeneasbthetehaheelr thaM be opol whew stud Aftendy a tlm signore line. L CUSWDML ACMWM - N Ms s a eas-odlol accookk yon finedastod FI C Mveabaos and•Is a, , 1, a =1km wig nh-, , a accom ens- N, ' Oder L%Wwm No to Minors Act and UWwm Tandem to Minas Act for wmdh vas act as comadem. Yon vakntu d but van pinto- ad wsmant Ilia sets In the smoud belaq to the suet ad all such etas, wheha or not uawfered oot d the UOMMIt-MA assess, wgi only be and bl me for the bom M- of the oho- L OFAMMI M ON SM ACCOI.M - N mccood s in the name of m agaddw or oft and ad a Mural penan you aclmewledpe and cer y Ind W amount ownersae d* spaded ad v** edslbp uWa the apoiabk lows d the jwsditdm d isapmiatiaw,(N amevtlonh ad ddivoy d dime Tams and Oftme s ad other troommu s moww !d.r.,h - -!c ;.:. » .. ,: a - - iww 111 puedundo OmTemadCmn fliawadoMetrwa.. 1 c wenplatdherewift long dill adhmiaed by the amamt owner, ad WA each peach a ambnM ad de mh came Tom and CwhdNera adjw pedandog Um abliple s omommodul wale dm Tenw ad Co%Wm a b"d Me amount same, has bem d* sutlhased by account owew to din sin 10. AROIRAM ORgASUM • Arbi raUaa s Neal oil badi g enthe partles • The parties on wahbhp then dplp b oak ranedko rw asst Me.dMg tie right tejury Olol. • tae-wMtratlan fig,, .I is paeragl come Nmbd Mm all laft t fiam eawt paegadYgr. • The ombalme sword is mat vaprbd to cede fleMal fihdihr r h*W par. I ell mypwtra right to aped r on wale win -0eallon of roller by the aebibabaa is swktll NmML • Tea pmd of ariibobao wM typ* N, Mdde a ml a ety ef arllhabn win wma r we dMIg od law tlea aesrrkkt MhdemtrVk 11. AMOMTION - You agree: Wed all antrowf' m teal aril arbor belweah me, nmgamehs ad Ito .. , P .mdeht fbw. Heir , pee We slam Tyra. - , . aflNieft mple" oil Van aanoamMO aq leawefan, the sowuaetiam, pttarrhhgea r beak of Ibis r my Mee apraommt bdt w, Meow the trdgweUog r dpermueft is m vol lets. Flat, s, or niMgwa-to tin dace heead, "be daemMad by anbitratlrrt A" dfbitratldm alb the apeeemerht Shoo be aMmebd Puts"" an the Folio Milo fl- h Act all the arbluatlan lag of ft Sbbe of New Yak befaa *a taw Ysik Sbdc Bmbmr, be. DIM or the Nabanaf Aabdatleeh of Scarklea Osbs Jam O A3 & at yan very elect hf yam falltemain: much edeetlos by faJSteed Roil odlfaosdts sir Halm aNks wNMm tea "Is age reeept efs srkim eywgt ono you b malke and ei ediem, Vw ohm adlhmse /IIC bvesboests aM is aneo1 ' - ihw b gmlo sdh sleeks m Voar b". The awed d Me arbibattan dhoti be tbeal all jrdgawat m the nasal shay be timbered b aq teb r fidte soul hovMp Jrsieliog. No plans olr0 brig m peolMm r wtllid also atdtan b arbibratloeh. gr ark tou$ mP f*a- bore armed alaMd r/ posmoho hs b W , . in sort a poealm ds me" r sea In a mad w of a pWYee etas wb ban ad dPhd not of the also NO resod b day colon moawpood by ft pahtls chat action on* JO Mo claw -, AM Ifsm Is dmlod. or OO Ma also Is ekat-IN 1, r (M the a o mt is eaekdd fm *t duo by the mart Such Isl1- - te scout M argon" to arMleole"Mt amaNlHfe a Maher of my rlplmo coda Ms "Mem"mart to the e - A" brim. 13. FOlll7 ON OM IMIUIMIO AND OW ROW MyMBQ - (mbwnt WO eanman t miff sdaml pracft FK Inveauehehs or Its arropenlew iMo raeives I ,- IN sift flew in de foam of ekht aawsry ampordom pt shoe or reelpwel imphos fie oiler dealing or market -- x - Ahsmt spedlle ieruucUawfiom ymt sides in mutd Is sub daaks or averhe soles that vow adds at prices d the wltehlal heat bW r oft all oho poMde an gpaaodq fr amaNan d prima mpalw b the matlanal beat bW r e fee Our kremae abjaMm k b obtainthe best emcutlas fr or dle t Iof any fatw U. TVO MfAl1011 FIN - Van aelahawkip the Om is a flip fee to tesmboh smdfr b&%% yor aeacaM all No per" and the Ms fee is vj*d to doge. 14. Y o n as of 4d sip w A autlhanI -'a able IMO ds apreemmt and cafe *a ( Q tle Mknhmbs esmhshe[d in ft appleatlen is one and WNM a na ane amp- Van ad to J" swami of "Isow has an' p pst M ft wo m dA Mod to thb ap eement ad 8N you sic rot m , pinyce of a emlonp4 o regsemel beleea le lee; a ooddpi swwNSs dab r wok is inn eapodey of bvft or od by ncwVlea or In the airily of IolNms 1 sorb at a hook =Wnpa and long. Mostmi t oddwy flM r inveauu I IMF YM Spa Mot Van wN peampltV folly PM hheewaherMS ff yan btanst b employed or we mplww by umme wM am in mirk apaekp IL S PPOMM ODCUMO 4 -Yan adoowI I oil spa tint any ell all Mpg d I doeummb eeigW b tha faNewkp aoosunt types wine pm*W to ym end Mat ysu have ad, WAMOM end sign to inn Wdkhd srom ad aMhlew of such dmanewe ' - I Fafmol Aocamt Trader an Deal A p pe i ,, Alveesped Amer Ace mt Capital Diatlow AewwM. Individual ktho ors Actount. SMPJ . 'I" IkMeme Aomunt idler W IIIA iL Va area b mebfy PNC bwedm m b wdlq d m f seabed romp s heyo r fiw A deagmwneg or - rhfeaamehlt - I , Awe lmtrrmmtlaeh van give wan thisammuw will be vj*ct b vaiNatim and yea amdualm w to abbim a =0 eepat allot Vin at may time. 17. 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A ehstiomaI' or reddw&* 31. Yen amyl obtain I InrrnaNon reps N do /iaeipNewI hifty of PK hhvnumens all No tbhrl A cam flow by cochhctlgp tlm IMM tllrw* the hotline It 1-M G-7th-em or the hstenhet at WWWAN&Aft ]Z. 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( ORWOf DWr ON CANMVDIO NIAM - Than is to Nina you thakin ahsh "0rnhwWhfiewaeaaNansbalviagegukV adlra&W SWAlkiM kM YWtrbd PNC Invqumms to eftwbk on mV bdolf ad as my apmt a "mall with VOL I boo appeimd PNC hweabieMS ri hmP mehrive agent b set is all M nit bdolf Mid reaped b sip seams arrding all asset with loo, Melding but gal Mmitd 1% the Iladq of seamift psi am, all sde sides A rpe dtYs aIheeaad is AM - ed to you herew0 yin droll Jack sly to PNC Iehwmfrnew all gat In me wish nspae to my Sikh aides or Iwlrsetlao - all van as be,* Mmuueld b ddhe . a -Jai, sbaumeMS, ag wdsm r now mebees edit spool to my aced - to FNC bosdeema AeV sgh saamwdnllow ddkw d to FNC haeeeamehb *al bt deemed b boo bean ddhed b me all ym Sing be efbtled to roll an FNC leaoluhmnb to few I tlm ahhearma of any mkt r napeneS, stung in cendhatloer vdth the deNvaya feceipt d are such ammMdeabat proviM Vm hove sad ln aesootiame I YAM the sbm The faeplog doll be elkedue wM.h respect to my aamwM wall mittmh raft to the anbay is podved W "v ad PK kwab oo tt INVESTMENT OBJECTIVES: Income - Rimm objectne is to geneate income iron My suneib Mat have a Jaw depte of dale of loo of prindpal %Ikr- T=-Nvwd bane - Prim" objeethe Is to ante tax-favved Mama and noiMaMk tlm uabNq of tlm peimipal false dyer Mwabrimb. Lang-Trm OrauMh - hinmy Mwaunmt objeetMm is ft smack of your sum wb less s pkass an asst ,geese Shrt Tam Trdbg - Fie ohjacbo is to bed ad uN mmiti s an a ktqum bas in an ~ b c*Wi a: an pis www mI i ice fares in a shat thrhaae Spaoiotlom -141101" aYje it s to of , to *NVW * Manse value of prkldW by bosMq In eeroribea whiff have Weorialhy eeaeaiamud a NO depm Of risk. Brwrlh all base - Pdwmy objabo Is to seek a bahoce of Wrq-form Wow& ad irKmnc bow lot Bfoadk will Ossafed Spsaddian - Prbaary objaNve s b valddy andlr eiwmabcalhr ieaesse prMmipal M achmp for pram rw beawt W* Oemalanal Spadatlan - hkANY abjeahe IS to gewdb Mcone; genre a genial merman Jar the s ft of prMheipal; bovmvec aeasta * Most In SwAfties tint we sou volatile in ware for Me ltvm ot p, -- - powtk hesewtlom of Fl dpol - Frieay *Kew is b awed d* b princlpal. Pnleebng wigbal MostnmrM "gist lessb was Igeporbnm Man is powtb OMs - No >un , hnMoves abjeetMm on be wiped to tidy "ccawt mUw Ow Rve has ma fiduciary or ad w cep- 11111ea sal mWd to account rawafafgsuowa z, ANNUITIES ACKNOWLEDGMENT AND DISCLOSURE QPNC m FoR Nm PURCHA.SES• AND/OR AmimoNS'10 EX1SI'MG ANNUmES °Y?. • None of Soeiol Sew ft Number Age no AoooartNumber L_M is .e 1-7 -.10 -518 ?flo 15 ?a l ' Nome of Jokt Social Sew*/ Numbs Age N Mdditton _WW" Polity Number L 290RE57-VEAS ANNUITY PURCHASED OR ADDITION AMOUNT 'P• « "?`r?""^°\YC.I wa.wY' • Y. .., t 2 3 4 5 6 7 1; 9 ' s fSl. 9 8 (J O U- d i. Type of transaction: )(New Purchase ? Ad hoc addition to existing product ? Pre-set Systematic addition 2 Estimated Liquid Assets (ram-rtirement assets that are cash or readily convertible to cash): ?d CV O " 3. Nut worth ?Excluding Home): SC?O D?0 4. Investment Objectives: forimmedidteAnnuidesOnly: ? income ? Other (as defined) For VaddWeAnrmrities Oni .? ? Growth and income ? long-Terre Growth ? Growth w/Occ. Speculation ? Other (as defined) FbrRvedAnnuities Q*. ? Long Term Growth rvation.of Principal ? Other (as defined) If cikrt(sj objectives diffet• from what's disclosed on the New Account Application, or if the Investment objective is 'Other", please explain the reason for this investment: CHECK IF BONUS ANNUITY 'Banos' products (annuity contracts that provide an immediate credit upon purchase) may have higher costs, fees, surrender charges and for longer surrender periods than ^o^- 'K !+O?M1P_+r if s *0....? °c? w?aa.«w Gwix;amrtim unseal ageuses, or me surrender period may be greater than a comparable non-bonus product Boma rabes.nay not apply after the first Yeas 16hft Bonus Please indicate the tam of the bonus and the additional % to the initial rate: _ Months S09b ? Premium Somis Please indicate the bonus credited to the contract: 4b Are either the internal expenses or the surrender period greater than a comparable PNC Insurance approved product from the same carrier? ? Yes ? No If yes, how much greater: M S E fees (for Variable annuities only) % Holding/Surrender period On years): hrs. 1st Year Surrender Charge increase 4b The current base late of 5.10 applks to the initial purelm payment only. The base rate is guaanmd by the insurance ompany for FoloA% the initial rate period, renewal rates will be declared annually by the insurance company as described in the applicable provisions of the annuity contract If the faked annuity is canceled dining r 'fnce-look' txiiod. state law appNes to determine whether the principal or value will be refunded • Ckot has received the prospemdn that explain all aspects of this investment and understands that they should read and keep it for future .-Feerrce _ • This ifrvesfinerk k aihiwr! «.... ?- --.w6uro ran nay result in a market value higher or tower than original investment: Past performance is not indicative of fawn results. • Caen has the right to anted a variable anmity investment within the time frame specified by the contact (unless otherwise subject to state law). client may be given back Its than original hrresbnent depeudig on the mnarI P- value of the variable anmrity at the time of cancellation. In addition, client understands that eamigs/dividends we rat reoeiva N the annuity contract Is surrendered dung the 'fife look' period. I wndestan 'flat 1 am locked Into this annuity and that, by the very nature of the product, l am prfvented from any transfer or liquidation of the onmutlt I arnddstannd that 1 ma ktanr as ha illete tar 0 bitty and that this product des not include tax-ftWmd beelitt Annuities are obligations of the issuing insurmce company which is not affiliated with PNC hnstimm Services, Inc. I undestwW that annuity oortttacts are long tsnm hwcsbnM and are not suitable for shoe term trading; are ad', olkerr oaigatlots o6 or gwramtced by, MC Bath. N.A. or my of Its afflastes; are not hwrei by the FDIC, or am Feieaal 0, apraspR Asencl are aabjeet ten inrua0lumt * k% I k 11 rig the pommibie loss of the principal amount irrvusttd: aM the iluxidon to pnushnue investment or keno ante padarb ?rpm affBiabes of PIIC Bank. NA wiN not sMe p- the coat or availa6iBty of other products or services from PNC Bank NA Annuities may be subject to federal income tax pemlties for withdrawals prior to age 5916. I (we) understand that I (we) should eosuft my tax advisor for ma specific Informs The irdbnm*M provided above concemig the annuity is a summary only and may not include all product features and does not constitute a contract The contract bebnear you w the insurance cc iparty will be the final rAbority for product features. I (we) further admowledge receipt of this aduiowkdgemert and disclosure both orally and in writing or ve* the at ney of the info rAtion contained above. E I ?.( JCi_1S ? J- ? A alone `?g?wawe ? pie -May Lose Value •No Bank Gualmae FOwnstoaara Blue - AgenyiPNo Pink - FC 60memw - client boa MetlHetnvestom C 'tp / S - Premier Select II Send application mad clack to MetLife Investors USA Insurance Company Policy Service Office, .0. Box 295 Des Moines, IA 50301.0295 For assistance calk. 800.848,854 Social Security # 1-7!V - c;h:g .?/9 C/ Sex: ? M XF Date of Birth P F- 7f?- ?Ca3 - X18 ?£? one um er TIN/Social Security # _ Z24 - -A6 -SIB Y Sex: ? M *f- Trust Date/Date of Birth 66 /,,t;7/ I ,a' 7 r -7 -'7t.13 - 7 Phone Number Phone Number a?.?:•?ve•i:; .cil^.ev:al Dvy.:vw VYYUVII, VYllii VY11010 010 110111uU Y Ull Ulu Uadul Ul 01u101 'Ault Uw1lul, and the beneficiaries listed below will be considered continaent?beneficiaries. Owner viii be th. I ! Social Security_ # 7 - -_(e - 7V.30 Percentage L 9E ame rat, e, Usti- ? , l? c/ 1°ce+ StreetAdiffess; City tats p e atlo ip ame rst, Middle, Social Security # Percentage % Last) W. CONTINGENT N et ress 5 PURCHASE PAVOENT/OPMONAL city PIM state p e abon . SINGLE PURCHASE PAYMENT PI AN ME (Choose One) .1 VA TYPE OPTIONAL RIDERS: These rider (Make check payable to McUe on-(Iualified Traditional IRA ? ? Custodial IRA be chosen at time of a lice Irne ;W s .r USA Insu ante Company) ? 401(a) ? SEP IRA ?Transfer ? Rollover elected these options may b Y (May not be available in all state $ `t l ? TV , ? 403 (b) Rollover ? Roth IRA {RA Contribution Year n c..;.,.,a w,.cc.,.... -- o__ may onh -- Ilual M= GUARANTEE PERIOD (A. Choose one plan and B. one initial Guarantee Period. Check availability - not all Guarantee Periods may be available.) A Standard Plan B. ? 1-year ? 3-years ? 5-years [) 6-years ? 7-years rat Year Interest 1-year A First yearinterestrate bonus of 1.5X y»Nbe added to doe base interest rate for ft initis/one yeaiGuarantee Period on# Sts Rnnue Plan Is If f to and must or 00 1tnOw1 and With mtelltt0 defend - r-- - - - - ....... jr 4"•'°•• ..,1., n8 mall i>emsnce company or other person les n application or submits a claim cones my. materially false Information or coacea for we parpose of midadiaq, lafamatior aroaceraiag oar fact Iaatariai derato, commits s fraudulent ira noce act: which is a crime, and aid _Jew such person to Iximlaal and civil p?aNees. far Florida re:irleat:: AaY pereoa who kaowiagly and with intent to i 'Ore, defread, w deceive m Inww es a statement of claim or an opp ioa c iaiag anndy false, ineompl-, or misleading inflmnatiol is guilty of a of the third degres. Per New Jersey idemt:: Any person who Includes any false a ma lending infornadon on an application for an insurance policy is su 'act to criminal and civil pensides. 1 ague that the above i 'on and statements are true and correct to the best of my (our) knowledge and belief and are made as the basis of my (our) Ip icatlon. I (VY artily ua shies of perjury that the ob a ci 1 number(a) is correct 0-7-10-0 signed at ate) or { "tore & Tide (Annu nt unless lase noted) Date .0,4g& - is - 907492 low Owner Spann & Title AnmatarR S iNotofe (if other than Owner) Date s this annu' ein chased td repla iwostinQfe insurance or annuity " ? P? ?y?nest? ? Yes ;gentIs Signamr P e 7f?-7 ?f ? Agent's Na ' a .? d Number- ? lame & Address of Frm ('7d t j'tate license ID # (Required for FQ Client Account Number 44Cs 137- G a v Metlife Investors USA Single Premium Deferred Fixed Annuity Name (First Middle, Last) Social Security # Sex: ? M ? F Date of Birth ?_J_ j Street Tess EXHIBIT "G" LAST WILL AND TESTAMENT OF LOUISE I. KAPP I, LOUISE I. KAPP, now domiciled in Cumberland County, Pennsylvania, declare this to be my Last Will and Testament. I revoke all other wills and codicils that I may have previously made. Article I My just debts and expenses of my last illness, funeral, and administration of my estate shall be paid by my Executor from the principal of my residuary estate as soon as practicable after my death. Article II All inheritance, estate, and succession taxes (including interest and penalties thereon, but not including any generation skipping tax) payable by reason of my death shall be paid out of and be charged generally against the principal of my residuary estate without reimbursement from any person. This provision is not a waiver of any right which my Executor has to claim reimbursement for any such taxes which become payable as the result of any property over which I have the power of appointment. `ra C- 3 rn - , , .- rTi _ 5 ) G7 C.'? C'j cri 4 Article III I give, devise and bequeath in accordance with any memorandum which I have either handwritten or signed, located with my will or with my valuable papers and found within 30 days of the probate of my will. Gifts may only be to persons who survive me or to organizations which exist at my death, and if there is a conflict, the memorandum having the latest date shall govern. Article IV All the rest, residue,,and remainder of my estate, of whatsoever nature and wheresoever situate, I give, devise and bequeath according to the following schedule: A. ONE-EIGHTH (1/8) to my brother, CHARLES A. IERLEY, of Dauphin County, Pennsylvania. If CHARLES A. IERLEY predeceases me or fails to survive me by thirty (30) days, then I give, devise and bequeath the share he would have received to his wife, DORIS IERLEY; B. ONE-EIGHTH (1/8) to my brother, SAMUEL F. IERLEY, JR. of Cumberland County, Pennsylvania. If SAMUEL F. IERLEY, JR. predeceases me or fails to survive me by thirty (30) days, then I give, devise and bequeath the share he would have received to his wife, MARILYN IERLEY; C. ONE-EIGHTH (1/8) to my sister, MARGARET M. BEMESDERFER, of Mountville, Pennsylvania. If MARGARET M. BEMESDERFER predeceases me or fails to survive me by thirty (30) days, then I give, devise and bequeath the share she would have received to her son, JAMES BEMESDERFER, of Mountville, Pennsylvania; D. ONE-EIGHTH (1/8) to my sister, HELEN E. RANK, of Dauphin County, Pennsylvania. If HELEN E. RANK predeceases me or fails to survive me by thirty (30) days, then I give, devise and bequeath the share she would have received to her son, WAYNE RANK, of Dauphin County, Pennsylvania; E. ONE-EIGHTH (1/8) to my sister-in-law, EVELYN WRIGHTSTONE, of Shiremanstown, Pennsylvania; F. ONE-EIGHTH (1/8) to my brother-in-law, EUGENE C. KAPP, of Cumberland County, Pennsylvania; G. ONE-EIGHTH (1/8) to my sister-in-law, DORIS MUSSER, of Cumberland x County, Pennsylvania; H. ONE-EIGHTH (1/8) to my sister-in-law, MARYANN GINGRICH, of Fairfield Glade, Tennessee. If one of the beneficiaries named in this article predeceases me or fails to survive me by thirty (30) days, I give, devise and bequeath. the share he/she would have received to the remaining named beneficiary(ies) in this article who survives me by thirty (30) days, PER CAPITA, NOT PER STIRPES. Article V I nominate, constitute, and appoint my sister, HELEN E. RANK, as Executrix of my Last Will and Testament. In the event of the renunciation, death, or inability to act, for any reason whatsoever of my Executrix, I nominate, constitute and appoint my friend, KATHLEEN M. MARBACH, of Cumberland County, Pennsylvania as successor Executrix of my Last Will and Testament. I direct that my Executrix or successor Executrix be permitted to serve without bond and -3- in addition to those powers granted by law, I grant them power to distribute in cash or in kind in like or in unlike shares and to file any qualified disclaimer I could have filed if living. My Executrix or successor Executrix shall receive reasonable compensation for services rendered to my estate. Article VI In addition to the powers conferred by law, I authorize my Executrix and successor Executrix, in her absolute discretion: F (a) to retain in the form received and to sell either at public or private sale, any real estate or personal property except that which I specifically bequeath herein, (b) to manage real estate, (c) to invest and reinvest in all forms of property without being confined to legal investments, and without regard to the principal of diversification, (d) to exercise any option or right arising from the ownership of investments, (e) to compromise claims without court approval and without consent of any beneficiary, (f) to file any federal income tax return for any year for which I have not filed such return prior to my death, (g) to make distributions in cash or in kind, or in both, and to determine the value of any such property, (h) to employ any attorney, investment advisor, or other agent deemed necessary by my Executor; and to pay from my estate reasonable compensation for all their services, (i) to conduct alone or with others, any business in which I am engaged in, or have an -4- interest in at time of my death, and 0) to receive reasonable compensation in accordance with their standard schedule of fees in effect while their services are performed. IN WITNESS WHEREOF, I, LOUISE I. KAPP, hereby set my hand to this my Last Will and Testament, on _ / _. . 2004, at Harrisburg, Pennsylvania. LOUISE I. KAPP In our presence, the above-named LOUISE I. KAPP signed this and declared this to be her Last Will and Testament and now at her request, in her presence, and in the presence of each other, we sign as witnesses. Name. Address `? 'r? s' "Zl 0 Y4 17 bh 1 -710 -5- I, LOUISE I. KAPP, Testatrix, who signed the foregoing instrument, having been duly qualified according to law, acknowledge that I signed and executed this instrument as my Will, and that I signed it willingly as my free and voluntary act for the purposes therein expressed. Sworn to or affirmed and acknowledged before me by LOUISE I. KAPP, the Testatrix on /"-' f 2004. IIIo Public NUFMM3M MAN rd" LAMS PI MN TWP DMIPIR111.0{rj-- MI! rAMR; MARCH 29 LL OUISEI. KAPP We, the undersigned witnesses who signed the foregoing instrument, being duly qualified according to law, depose and say that we were present and saw the Testatrix sign and execute this instrument as her Will; that she signed and executed it willingly as her free and voluntary act for the purposes therein expressed; that each of us in her sight and hearing signed the Will as witnesses, and that to the best of our knowledge, that she was at that time eighteen (18) years or more of age, of sound mind, and under no constraint or undue influence. Sworn to or affirmed and subs ibed to before m by J1AA 1) *0 and wi sses, on /- 2004 No blic ::FIOM . M" MAN PUBLIC t Witness( U a CXA(-11K1- -6- fitness i r D c m O -0 x p Z O o r' > ~ ? zc O H O CERTIFICATE OF SERVICE I HEREBY CERTIFY that I am serving upon all persons listed below a true and correct copy of Plaintiff's Petition in the above captioned matter. By First Class mail to: Kathleen Gilbert 231 Bosler Avenue Lemoyne, Pennsylvania Attn: Margaret Dow Allstate Life Insurance Company 2775 Sanders Road Northbrook, Illinois 60062 By First Class mail return receipt requested pursuant to Pa.R.Civ.P. 403 and 404(2): MetLife Investors USA Insurance Company P.O. Box 295 Des Moines, IA 50301-0295 Also sent without exhibits via facsimile to 515 457 4400 TT & WENGER Dated: April 13, 2010 Penny A6 Rogers, a D -x.371 PROOF OF SERVICE County of ~u~nbe~ ~Gvt~ On the ~ day of 20„x, I ~u y i o! /l~, C!'r ~~ served ~Gt~~eah Gi ~h2r-~ with the foregoing Complaint, Preliminary Injunction, Proposed Order and letter by: I verify that the statements in this return of service are true and correct. I understand that false statements herein are made subject to the penalties of 18 PA C.S.A. 4904 relating to unsworn falsification to authorities. ~Q~r.l ~D, a©~o Date ~,.. ~-~ ~; ~~ .:~_ = 4- ` c~ , - - ,s.r w- _ _ :' C_ _ - - ~ i - _~;. xr - ~' t.~_ a . - ~ ~ ~ N ~~A~cku.,ly zl ~'r~ves~hc~cs~a,s, ~r,.e. °~l Signature 5~,~~ aoo y660 ]'r~ r<ol l e a'A~ Address lllncrrintinn of mothnrl of ccrvirpl T ~ ~ti C;~~ .!°r `ATM'. t ,~-- ~L - rr;~.y Ll.~vi!„jf -J i~.~ 1 ~~J Keefer Wood Allen & Rahal, LLP Todd F. Truntz, Esquire Identification No. 83302 635 N. 12`h Street, Suite 400 Lemoyne, Pennsylvania 17043 (` r ~ , r-, ESTATE OF LOUISE I. KAPP by and through the Executrix, HELEN E. RANK, Plaintiff VS. ALLSTATE LIFE INSURANCE COMPANY, METLIFE INVESTORS USA INSURANCE COMPANY and KATHLEEN GILBERT, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-2371 CIVIL ANSWER AND NOW, comes Kathleen Gilbert (hereafter "Mrs. Gilbert"), by and through her attorneys, Keefer Wood Allen & Rahal, LLP, to file this Answer to the Amended Complaint filed by the Estate of Louise I. Kapp, by and through the Executrix, Helen E. Rank (hereafter "Plaintiff'), and in support thereof avers the following: 1. Admitted as stated. 2. The Certificate of Grant of Letters regarding the Estate of Louise I. Kapp issued by the Register of Wills of Cumberland County, Pennsylvania, is a legal document that speaks for itself; therefore, no responsive pleading is required. 3. Admitted as stated. 1 4. Denied. The proper person entitled to receive all funds held in the Allstate Life Insurance Company (hereafter "Allstate") annuity (hereafter the "Allstate Annuity") referenced by Plaintiff in Paragraph 4 is Mrs. Gilbert by virtue of the beneficiary designation duly executed by Mrs. Louise I. Kapp (hereafter "Mrs. Kapp") on January 15, 2005. The remaining averments contained in Paragraph 4 are denied inasmuch as Mrs. Gilbert lacks sufficient knowledge regarding Allstate's principal business address and legal entity classification. Strict proof thereof is demanded at trial. 5. Denied. The proper person entitled to receive all funds held in the MetLife Investors USA Insurance Company (hereafter "MetLife") annuity (hereafter the "MetLife Annuity") referenced by Plaintiff in Paragraph 5 is Mrs. Gilbert by virtue of the beneficiary designation duly executed by Mrs. Kapp on July 10, 2004. The remaining averments contained in Paragraph 5 are denied inasmuch as Mrs. Gilbert lacks sufficient knowledge regarding MetLife's principal business address and legal entity classification. Strict proof thereof is demanded at trial. 6. Denied. Mrs. Gilbert presently lacks sufficient knowledge or information regarding with whom Mrs. Kapp resided during all of her adult life; accordingly, Paragraph 6 is denied and proof of the averments therein is demanded. 7. Denied. Mrs. Gilbert presently lacks sufficient knowledge or information as to Mrs. Kapp's reliance on her late husband, Marlet Kapp (hereafter 2 "Mr. Kapp") regarding all financial matters during the course of their marriage, inasmuch as Mrs. Gilbert only became acquainted with Mr. and Mrs. Kapp in or around February of 1998, when she moved next door to the Kapps; accordingly, Paragraph 7 is denied and proof of the averments therein is demanded. 8. Denied. Mrs. Gilbert presently lacks sufficient knowledge or information as to extent of the bank accounts maintained by Mr. and Mrs. Kapp during Mr. Kapp's lifetime, inasmuch as Mrs. Gilbert became power of attorney for Mrs. Kapp only after Mr. Kapp's death; accordingly, Paragraph 8 is denied and proof of the averments therein is demanded. 9. Denied. To the best of Mrs. Gilbert's knowledge and belief based on her daily interactions with Mrs. Kapp during 2004, she was at that time coherent, understood complex issues and was able to comprehend and competently make decisions regarding important matters. Mrs. Kapp held a valid driver license and continued driving her car until her death in early 2010. 10. Denied. Mrs. Gilbert affirmatively believes and therefore avers that Mrs. Kapp was fully aware of the nature of check writing, bank statements and her financial records. In fact, Mrs. Kapp drove by herself to her bank on a monthly basis to deposit her Social Security check and separate retirement benefit checks from Highmark and the railroad company where Mr. Kapp had been employed, until shortly before her death. 3 11. Denied. After having known Mrs. Gilbert for nearly six (6) years, Mrs. Kapp asked her to serve as her power of attorney in January of 2004, following the death of Mr. Kapp. Mrs. Kapp initially asked her sister, Mrs. Helen E. Rank, to serve as her power of attorney, but she refused to do so. Mrs. Kapp had no children and did not want other family members to serve as her power of attorney due to mistrust or advanced age. Mrs. Gilbert provided assistance to Mrs. Kapp with housecleaning, management of her finances and incoming mail, and helped her with paying her bills. Mrs. Kapp periodically gave Mrs. Gilbert gratuitous cash payments, which she did not request, as an expression of appreciation for her assistance and friendship. 12. Denied. Mrs. Gilbert presently lacks sufficient knowledge or information as to what Mrs. Kapp believed; accordingly, Paragraph 12 is denied and proof of the averments therein is demanded. By way of further response, Mrs. Kapp actively oversaw her financial affairs when she and Mrs. Gilbert regularly reviewed her mail and bills together, and when Mrs. Kapp made independent financial and testamentary decisions, such as executing her Last Will and Testament on January 9, 2004 and by opening the Allstate Annuity. 13. Denied. The MetLife Annuity was initially opened jointly by Mrs. Kapp and Mr. Kapp during Mr. Kapp's lifetime on or around October 29, 2003. On July 10, 2004, after her husband had died, Mrs. Kapp designated Mrs. Gilbert (then 4 Kathleen Marbach) as sole beneficiary of the MetLife Annuity by her own voluntary, independent and conscious choice. 14. Denied. Mrs. Gilbert assisted Mrs. Kapp in seeking financial advice regarding numerous Certificates of Deposit that matured after the death of Mr. Kapp, as well as certain other bank accounts. Mrs. Gilbert and Mrs. Kapp visited Ms. Bonnie Snyder, the investment representative at PNC Bank who previously assisted Mr. and Mrs. Kapp when they opened the MetLife Annuity (hereafter "Ms. Snyder"). Ms. Snyder recommended that Mrs. Kapp purchase another annuity to consolidate these funds since an annuity represented a secure investment that would provide Mrs. Kapp with a regular stream of income as well as liquidity in the event she became in need of long term nursing care. Mrs. Kapp understood the nature of annuity investments, having previously opened the MetLife annuity jointly with her late husband. Mrs. Kapp designated Mrs. Gilbert (then Kathleen Marbach) as sole beneficiary of the Allstate Annuity by her own voluntary, independent and conscious choice. 15. Denied. Mrs. Kapp was familiar with the nature of annuity investments, having opened the MetLife Annuity jointly with Mr. Kapp in 2003. Ms. Snyder, whom Mrs. Kapp trusted based upon their continued banking relationship, suggested the Allstate Annuity because of its security and ability to 5 provide Mrs. Kapp with a regular stream of income and the ability to be liquidated in the event she needed long term nursing care. 16. Mrs. Kapp's Will is a legal document that speaks for itself; therefore, no responsive pleading is required. The Annuities are represented by legal documents which speak for themselves; therefore, no responsive pleading is required. By way of further response, all averments that Mrs. Kapp intended the funds held in the Annuities to be distributed in accordance with her Will are denied; to the contrary, Mrs. Kapp duly designated Mrs. Gilbert as the sole beneficiary of both the Allstate Annuity and of the MetLife Annuity. 17. Denied. Mrs. Gilbert presently lacks sufficient knowledge or information regarding whether Mrs. Kapp's relatives were informed of any financial transactions; accordingly, Paragraph 17 is denied and proof of the averments therein is demanded. 18. Denied. Mrs. Kapp's relatives became aware of the Allstate Annuity prior to Mrs. Kapp's death. Mrs. Kapp suffered a cerebral hemorrhage on Saturday, January 23, 2010. On Monday, January 25, 2010, while alone with Mrs. Kapp at her hospital bedside, Mrs. Gilbert received a call from Brian Ierly, nephew of Mrs. Kapp (hereafter "Mr. Ierly"), concerning an envelope containing a statement regarding the Allstate Annuity. While Mrs. Gilbert was at the hospital tending to Mrs. Kapp, Mr. Ierly and Helen E. Rank, Mrs. Kapp's sister and the Executrix of 6 the Estate of Louise I. Kapp, Deceased (hereafter "Mrs. Rank"), were at Mrs. Kapp's residence, looking for her Will and inventorying her financial assets. 19. Denied. While at Mrs. Kapp's bedside, Mrs. Gilbert was not focused on Mrs. Kapp's financial assets, the Allstate Annuity, or who had been designated its beneficiary. However, upon their discovery of the Allstate Annuity, Mr. Ierly and Mrs. Rank immediately accused Mrs. Gilbert of wrongdoing and demanded that its proceeds be turned over to them. Mrs. Gilbert was initially shocked and somewhat intimidated by Mrs. Rank and Mr. Ierly's accusations, and prior to consulting with legal counsel, offered to surrender the Allstate Annuity to Mrs. Kapp's Estate to avoid an unpleasant dispute regarding funds that she never requested or expected to receive from Mrs. Kapp. Since consulting with counsel and upon further reflection, Mrs. Gilbert now fully understands and firmly asserts her legal right to all of the proceeds of both the MetLife Annuity and the Allstate Annuity as the sole beneficiary of each, being duly designated as such by Mrs. Kapp. 20. Denied. During the course of Mrs. Rank's and Mr. Ierly's attempts to coerce Mrs. Gilbert to turn the Allstate Annuity over to Mrs. Kapp's Estate, which occurred prior to Mrs. Gilbert's consultation with legal counsel, Mrs. Gilbert was notified that as power of attorney for Mrs. Kapp, she did not have the legal authority to designate Mrs. Kapp's Estate as beneficiary. Mrs. Gilbert then tried to 7 settle the matter by attempting to designate a twenty five (25%) percent beneficiary interest in the Allstate Annuity to Mrs. Rank as evidenced by that certain "Change of Beneficiary (Payee)" form attached as part of Exhibit "E" of Plaintiff's Petition for Preliminary Injunction in this matter dated Apri19, 2010. Mrs. Rank had full knowledge of and facilitated this attempt by providing her Social Security number to Mrs. Gilbert, which has been redacted from the Change of Beneficiary form. 21. Denied. Mrs. Gilbert presently lacks sufficient knowledge or information regarding exactly when Mrs. Kapp's relatives became aware of the MetLife annuity; accordingly, Paragraph 21 is denied and proof of the averments therein is demanded. 22. Denied. Unlike Mrs. Kapp's relatives, Mrs. Gilbert visited and interacted with Mrs. Kapp on a daily basis and did not observe any of the allegations made by the Plaintiff, other than occasional forgetfulness that might normally be expected in a woman in her mid 80's. 23. Denied. Paragraph 23 contains conclusions of law to which no responsive pleading is required; therefore, Paragraph 23 is denied. 24. Denied. Paragraph 24 contains conclusions of law to which no responsive pleading is required; therefore, Paragraph 24 is denied. By way of further response, contrary to Plaintiff's assertions, Mrs. Kapp duly designated Mrs. 8 Gilbert (then Kathleen Marbach) as sole beneficiary of the Allstate Annuity and of the MetLife Annuity by her own voluntary, independent and conscious choice. 25. Denied. Mrs. Gilbert provided friendship and care for Mrs. Kapp and did nothing but act in accordance with Mrs. Kapp's interests in mind. Plaintiff has absolutely no basis and has offered no evidence for this outrageous and scandalous accusation; strict proof thereof is demanded. 26. Denied. Plaintiffs averment that Mrs. Gilbert unlawfully entered Mrs. Kapp's home and committed theft of personal items is scandalous, outrageous and based on absolutely no evidence whatsoever. Strict proof is demanded at trial. COUNTI Breach of Fiduciary Dutv 27. Paragraphs 1 through 26 are incorporated herein by this reference as if fully set forth at length below. 28. Paragraph 28 contains conclusions of law to which no responsive pleading is required. 29. Denied. Paragraph 29 contains conclusions of law to which no responsive pleading is required. By way of further response, Mrs. Gilbert truly cared for Mrs. Kapp and sacrificed significant amounts of her time over many years for the benefit of Mrs. Kapp and consistently acted in Mrs. Kapp's best interest to provide for her comfort and well being. 9 WHEREFORE, Kathleen Gilbert respectfully requests that the Court issue an Order: 1. Entering judgment in favor of Kathleen Gilbert and against the Estate of Louise I. Kapp, deceased; 2. Dissolving the preliminary injunction against Allstate and MetLife issued by Order of this Court dated April 19, 2010; 3. Directing MetLife to pay all of the proceeds and accrued interest of MetLife Annuity Number 9200643703 to Kathleen Gilbert; 4. Directing Allstate to pay the proceeds and accrued interest of Allstate Annuity Number GA18382429 to Kathleen Gilbert; 5. Granting such other relief as the Court deems just and equitable. COUNT II Undue Influence 30. Paragraphs 1 through 29 are incorporated herein by this reference as if fully set forth at length below. 31. Denied. Paragraph 31 contains conclusions of law to which no responsive pleading is required; therefore, Paragraph 31 is denied. 32. Paragraph 32 is admitted to the extent that Mrs. Gilbert was granted power of attorney by Mrs. Kapp. The remaining averments contained in Paragraph 32 are denied inasmuch as Mrs. Gilbert assisted Mrs. Kapp with her bill paying and finances; Mrs. Kapp made her own financial decisions and maintained ultimate control over her finances. 10 33. Denied. Mrs. Gilbert always acted in accordance with what was best for Mrs. Kapp by providing the friendship, assistance and support that helped Mrs. Kapp live independently within her own home well into her 80's. 34. Denied. Mrs. Gilbert always acted in accordance with what was best for Mrs. Kapp by providing the friendship, assistance and support that helped Mrs. Kapp live independently within her own home well into her 80's. WHEREFORE, Kathleen Gilbert respectfully requests that the Court issue an Order: 1. Entering judgment in favor of Kathleen Gilbert and against the Estate of Louise I. Kapp, deceased; 2. Dissolving the preliminary injunction against Allstate and MetLife issued by Order of this Court dated April 19, 2010; 3. Directing MetLife to pay the proceeds and accrued interest of MetLife Annuity Number 9200643703 to Kathleen Gilbert; 4. Directing Allstate to pay the proceeds and accrued interest of Allstate Annuity Number GA18382429 to Kathleen Gilbert; 5. Granting such other relief as the Court deems just and equitable. COUNT III Unjust Enrichment 35. Paragraphs 1 through 34 are incorporated herein by this reference as if fully set forth at length below. 11 36. Denied. Mrs. Gilbert assisted Mrs. Kapp in seeking financial advice regarding numerous Certificates of Deposit that matured after the death of Mr. Kapp, as well as consolidation of certain other bank accounts. At the recommendation of Ms. Snyder, who previously assisted Mr. and Mrs. Kapp when they jointly opened the MetLife Annuity, Mrs. Kapp consolidated and invested these funds in the Allstate Annuity, understanding that the investment was secure and would provide her with a regular stream of income as well as liquidity in the event she became in need of long term nursing care. Mrs. Kapp duly designated Mrs. Gilbert (then Kathleen Marbach) as the sole beneficiary of the MetLife Annuity and of the Allstate Annuity by her own voluntary, independent and conscious choice. 37. Denied. Paragraph 37 contains conclusions of law to which no responsive pleading is required; therefore, Paragraph 37 is denied. By way of further response, Mrs. Kapp duly designated Mrs. Gilbert (then Kathleen Marbach) as the sole beneficiary of the MetLife Annuity and of the Allstate Annuity by her own voluntary, independent and conscious choice. 38. Denied. Paragraph 38 contains conclusions of law to which no responsive pleading is required; therefore, Paragraph 38 is denied. By way of further response, Mrs. Gilbert provided friendship, assistance and support out of kindness and her fondness for Mrs. Kapp, with no expectation of payment in 12 exchange. Notwithstanding the foregoing, Mrs. Gilbert spent significant amounts of her time over several years assisting Mrs. Kapp, which allowed her to live independently within her own home well into her 80's. 39. Denied. Paragraph 37 contains conclusions of law to which no responsive pleading is required; therefore, Paragraph 37 is denied. By way of further response, Mrs. Gilbert provided friendship, assistance and support out of kindness and her fondness for Mrs. Kapp, with no expectation of payment in exchange. Notwithstanding the foregoing, Mrs. Gilbert spent significant amounts of her time over several years assisting Mrs. Kapp, which allowed her to live independently within her own home well into her 80's. WHEREFORE, Kathleen Gilbert respectfully requests that the Court issue an Order: 1. Entering judgment in favor of Kathleen Gilbert and against the Estate of Louise I. Kapp, deceased; 2. Dissolving the preliminary injunction against Allstate and MetLife issued by Order of this Court dated April 19, 2010; 3. Directing MetLife to pay the proceeds and accrued interest of MetLife Annuity Number 9200643703 to Kathleen Gilbert; 4. Directing Allstate to pay the proceeds and accrued interest of Allstate Annuity Number GA18382429 to Kathleen Gilbert; 5. Granting such other relief as the Court deems just and equitable. (Signature page follows.) 13 (Continued from Page 13 of Answer.) Respectfully submitted, KEEFER WOOD ALLEN & RAHAL, LLP BY: ~~- Dated: May 4, 2010 Todd F. Truntz, Esquire Identification No. 83302 635 N. 12"' Street, Suite 400 Lemoyne, Pa 17043 (717) 612-5800 14 • r ~ i~ VERIFICATION The undersigned, Kathleen M. Gilbert, hereby verifies and states that the facts set forth in the foregoing Answer are true and correct to the best of her knowledge, information and belief. Furthermore, the undersigned understands that false statements are made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn verification to authorities. Dated: ~ 3 , 2010 , Kathleen M. Gilbert • ~ s 1 ~~ ~ CERTIFICATE OF SERVICE I, Todd F. Truntz, Esquire, hereby certify that I have served the foregoing ANSWER this date by depositing a true and correct copy of the same in the United States mail, first-class postage prepaid, addressed as follows: Randall L. Wenger, Esquire BOYLE, NEBLETT & WENGER 4660 Trindle Road, Suite 200 Camp Hill, PA 17011 Attorney for Plaintiff Estate of Louise L Kapp Lisa D. Stern, Esquire DRINKER BIDDLE 1000 Westlakes Drive Berwyn, sPA 19312-2409 Attorney for Defendant Allstate Insurance Company Alyssa N. Pianelli, Esquire SALTZ POLISHER, P.C. 993 Old Eagle School Road, Suite 412 Wayne, PA 19087 Attorney for Defendant MetLife Investors USA Insurance Company KEEFER WOOD ALLEN & RAHAL, LLP BY: Todd F. Truntz Dated: May 4, 2010 To the Plaintiff and Defendant Kathleen Gilbert. You are hereby notified to file a written response to the enclosed counterclaim and cross-claim r inte leader within twenty (20) days from service here r a ' dgme~may be ente d against you. rs~ ~ . x~~-c~ Lisa D. Stern Michael J. Miller (Attorney I.D. No. 62437) Lisa D. Stern (Attorney I.D. No. 56005) DRINKER BIDDLE & REATH LLP One Logan Square, 18th and Cherry Streets r,,, Philadelphia, PA 19103-6996 ` --~ Telephone: (215) 988-2700 a «, r7 ~' 1~. ~ Facsimile: (215) 988-2757 y ~ _ ~~~~ ,,,.,,~ i f i ~_. ~' rim Email: Michael.Miller@dbr.com `~ ' r'~`' c~ - ~- Lisa.Stern@dbr.com `~ ~'`'" Attorneys for Defendant Allstate Life Insurance Company `~ - . `~" ~ .-; ~_ ~ ., =='~ ~ ~., crt ~1'r =~ ~-. ESTATE OF LOUISE I. KAPP, by and through the Executrix, Helen E. Rank, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, v. ALLSTATE LIFE INSURANCE COMPANY, METLIFE INVESTORS USA INSURANCE COMPANY, and KATHLEEN GILBERT, No. 10-2371 CIVIL ACTION -EQUITY Defendants. ANSWER OF ALLSTATE LIFE INSURANCE COMPANY WITH COUNTERCLAIM AND CROSS-CLAIM FOR INTERPLEADER Defendant Allstate Life Insurance Company ("Allstate Life"), by and through its undersigned counsel, hereby Answers and asserts a Counterclaim and Cross-Claim for Interpleader pursuant to Rule 2301 et seq. of the Pennsylvania Rules of Civil Procedure, as follows: Admitted upon information and belief. BE01/ 706842. 1 2. Admitted upon information and belief. 3. Admitted upon information and belief. 4. Admitted in part; denied in part. Allstate Life admits that it has offices located at 2775 Sanders Road, Northbrook, Illinois 60062; on or about January 15, 2005, Allstate Life issued a fixed annuity, No. GA18382429 (the "Annuity"), to Louise I. Kapp ("Ms. Kapp"); the Annuity value as of the date of Ms. Kapp's death was $430,478.25; and there is presently a dispute as to the proper payee, and there are competing claimants, with respect to the Annuity proceeds. 5. Denied. After reasonable investigation, Allstate Life lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph, and these allegations are, therefore, denied. 6. Denied. After reasonable investigation, Allstate Life lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph, and these allegations are, therefore, denied. 7. Denied. After reasonable investigation, Allstate Life lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph, and these allegations are, therefore, denied. 8. Denied. After reasonable investigation, Allstate Life lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph, and these allegations are, therefore, denied. 9. Denied. After reasonable investigation, gllstate Life lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph, and these allegations are, therefore, denied. -2- BE01/ 706842.1 10. Denied. After reasonable investigation, Allstate Life lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph, and these allegations are, therefore, denied. 11. Denied. After reasonable investigation, Allstate Life lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph, and these allegations are, therefore, denied. 12. Denied. After reasonable investigation, Allstate Life lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph, and these allegations are, therefore, denied. 13. Denied. After reasonable investigation, Allstate Life lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph, and these allegations are, therefore, denied. 14. Admitted in part; denied in part. Allstate Life admits only that, on or about January 15, 2005, Ms. Kapp purchased the Annuity, and that Ms. Kapp paid additional premium over time, increasing the value of the Annuity. It is also admitted that Kathleen Gilbert (a/k/a Kathleen Marbach) ("Ms. Gilbert") was the beneficiary designated under the Annuity to receive the Annuity proceeds following Ms. Kapp's death and that Ms. Gilbert was identified in the Annuity application as "friend/POA." After reasonable investigation, Allstate Life lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of this paragraph, and these allegations are, therefore, denied. 15. Denied. After reasonable investigation, Allstate Life lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph, and these allegations are, therefore, denied. -3- BE01/ 706842.1 16. Denied. After reasonable investigation, Allstate Life lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph, and these allegations are, therefore, denied. 17. Denied. After reasonable investigation, Allstate Life lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph, and these allegations are, therefore, denied. 18. Denied. After reasonable investigation, Allstate Life lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph, and these allegations are, therefore, denied. 19. Denied. After reasonable investigation, Allstate Life lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph, and these allegations are, therefore, denied. 20. Denied. After reasonable investigation, Allstate Life lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph, and these allegations are, therefore, denied. 21. Denied. After reasonable investigation, Allstate Life lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph, and these allegations are, therefore, denied. 22. Denied. After reasonable investigation, Allstate Life lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph, and these allegations are, therefore, denied. 23. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is deemed to be required, Allstate -4- BE01/ 706842.1 Life responds as follows: After reasonable investigation, Allstate Life lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph, and these allegations are, therefore, denied. 24. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is deemed to be required, Allstate Life responds as follows: After reasonable investigation; Allstate Life lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph, and these allegations are, therefore, denied. 25. Denied. After reasonable investigation, Allstate Life lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph, and these allegations are, therefore, denied. 26. Denied. After reasonable investigation, Allstate Life lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph, and these allegations are, therefore, denied. COUNTI Breach of Fiduciary Duty 27. Allstate Life incorporates herein by reference its responses to paragraphs 1 through 26 inclusive as if set forth in their entirety. 28. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is deemed to be required, Allstate Life responds as follows: After reasonable investigation, Allstate Life lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph, and these allegations are, therefore, denied. -5- BE01/ 706842.1 29. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is deemed to be required, Allstate Life responds as follows: After reasonable investigation, Allstate Life lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph, and these allegations are, therefore, denied. COUNT II Undue Influence 30. Allstate Life incorporates herein by reference paragraphs 1 through 29 inclusive as if set forth in their entirety. 31. Denied. After reasonable investigation, Allstate Life lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph, and these allegations are, therefore, denied. 32. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is deemed to be required, Allstate Life responds as follows: After reasonable investigation, Allstate Life lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph, and these allegations are, therefore, denied. 33. Denied. After reasonable investigation, Allstate Life lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph, and these allegations are, therefore, denied. 34. Denied. After reasonable investigation, Allstate Life lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph, and these allegations are, therefore, denied. -6- BE01 / 706842. I COUNT III Unjust Enrichment 35. Allstate Life incorporates herein by reference paragraphs 1 through 34 inclusive as if set forth in their entirety. 36. Admitted in part; denied in part. Allstate Life admits only that Ms. Gilbert was the designated beneficiary under the Annuity at the time of Ms. Kapp's death. After reasonable investigation, Allstate Life lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of this paragraph, and these allegations are, therefore, denied. 37. Denied. After reasonable investigation, Allstate Life lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph, and these allegations are, therefore, denied. 38. Denied. After reasonable investigation, Allstate Life lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph, and these allegations are, therefore, denied. 39. Denied. The allegations of this paragraph constitute conclusions of law to which no responsive pleading is required. To the extent a response is deemed to be required, Allstate Life responds as follows: After reasonable investigation, Allstate Life lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph, and these allegations are, therefore, denied. COUNTERCLAIM AND CROSS-CLAIM FOR INTERPLEADER THE PARTIES 1. Allstate Life Insurance Company is a company organized and existing under the laws of the State of Illinois with authority to conduct business within the Commonwealth of Pennsylvania. -7- BE01/ 706842.1 2. Upon information and belief, Helen E. Rank ("Ms. Rank") is an adult individual who resides in Middletown, Pennsylvania. Upon information and belief, Ms. Rank is the executrix of the Estate of Louise I. Kapp (the "Estate"). 3. Upon information and belief, Kathleen Gilbert f/k/a Kathleen Marbach ("Ms. Gilbert") is an adult individual who resides at 231 Bosler Avenue, Lemoyne, Cumberland County, Pennsylvania. INTERPLEADER CLAIM 4. On or about January 15, 2005, Louise I. Kapp ("Ms. Kapp") purchased from Allstate Life a fixed annuity, annuity no. GA18382429 (the "Annuity"). A true and correct copy of the Annuity (with certain personal identification information redacted) is attached hereto as Exhibit A. 5. The Annuity application, which was signed by Ms. Kapp, listed the beneficiary under the Annuity as "Kathleen Marbach" (n/k/a Kathleen Gilbert) on the Annuity application. See Exhibit A. 6. On or about January 25, 2010, Allstate Life received a power of attorney form, which appears to appoint Ms. Gilbert attorney in fact for Ms. Kapp. A copy of the power of attorney that was submitted to Allstate Life is attached hereto as Exhibit B. 7. On or about January 27, 2010, Allstate Life received a change of beneficiary form (the "Beneficiary Change Request") signed by Ms. Gilbert, which purports to relate to the Annuity, and which lists Ms. Gilbert as a 75% beneficiary and Ms. Rank as a 25°Io beneficiary. A copy of the change of Beneficiary Change Request (with confidential information redacted) is attached hereto as Exhibit C. -8- BE01/ 706842.1 8. Because the power of attorney does not appear to grant Ms. Gilbert the power to change the Annuity beneficiary, Allstate Life did not honor the Beneficiary Change Request. 9. Upon information and belief, Ms. Kapp died on January 28, 2010. 10. Following Ms. Kapp's death, Allstate Life was contacted by counsel for the Estate, who claimed that Ms. Gilbert had exercised undue influence over Ms. Kapp and that Ms. Gilbert should not receive the Annuity proceeds. 11. On or about Apri17, 2010, the Estate commenced this action by filing a complaint, which alleged, inter alia, that Ms. Gilbert had exercised undue influence over Ms. Kapp in connection with the purchase of the Annuity and the designation of Ms. Gilbert as the Annuity beneficiary, and that the Estate, rather than Ms. Gilbert, should receive the Annuity proceeds. At or about the same time, the Estate filed a petition seeking a preliminary injunction, enjoining Allstate Life from paying the Annuity proceeds to Ms. Gilbert pending the final disposition of this matter. 12. On April 12, 2010, this Court entered an Order enjoining Allstate Life from paying the Annuity proceeds to Ms. Gilbert until further order of the Court. 13. On or about April 13, 2010, the Estate filed an amended complaint. 14. According to the answer to the amended complaint filed by Ms. Gilbert, she disputes the Estate's claims. 15. Allstate Life seeks, byway of this interpleader claim, certainty regarding the parties' respective rights to receive the Annuity proceeds. There is no collusion between Allstate Life and any party hereto, and this interpleader claim is asserted in good faith. 16. Allstate Life has suspended the Annuity proceeds and is prepared to pay the Annuity proceeds into Court, pending the resolution of this action. -9- BEOI/ 706842.1 17. Based on the foregoing, there is presently an actual, justiciable controversy between the Estate and Ms. Gilbert as to their respective rights to the Annuity proceeds. 18. Allstate Life is an innocent stakeholder and claims no title or interest in the Annuity proceeds. 19. Unless potentially adverse and conflicting claims to the Annuity proceeds are resolved in a single proceeding pursuant to an appropriate court order, Allstate Life is subject to multiple litigation and is at risk of suffering multiple liability and/or inconsistent rulings as to its liability for said funds. 20. Although no claims for damages have been asserted against Allstate Life to date, Allstate Life reserves the right to defend any claims for damages against Allstate Life if its request for interpleader relief is denied and/or if any such claims exist once an appropriate court order is entered regarding the proper recipient of the Annuity proceeds or under any other circumstances. WHEREFORE, Allstate Life respectfully requests the Court to: (1) order Ms. Rank, as administrator of the Estate, and Ms. Gilbert to assert in this interpleader action their respective claims to the Annuity proceeds without further involvement of Allstate Life; (2) direct and declare the respective rights of the Estate and Ms. Gilbert to the Annuity proceeds, and direct and declare to whom the Annuity proceeds are to be made; (3) discharge Allstate Life from any and all liability in connection with, arising out of, or relating to, the Annuity proceeds as to any and all persons and entities, subject only to Allstate Life's obligation to pay the Annuity proceeds into Court; -10- BEO 11706842. l (4) enjoin and restrain the Estate and Ms. Gilbert from commencing or prosecuting any other proceedings in any state or United States court against Allstate Life on account of the Annuity proceeds and to assert in this action any claims to the same; (5) award Allstate Life its costs and reasonable attorneys' fees to be deducted from the Annuity proceeds; and (6) grant any such other and further relief as this Court deems appropriate. Dated: May 19, 2010 Respectfully sub ' ted, ~~ , Mic ael J. Miller Lisa D. Stern DRINKER BIDDLE & REATH LLP One Logan Square 18`h and Cherry Streets Philadelphia, PA 19103-6996 Telephone: (215) 988-2700 Facsimile: (215) 988-2757 Attorneys for Allstate Life Insurance Company -11- BE01/ 706842.1 CERTIFICATE OF SERVICE I certify that on the 19`h day of May, 2010, I have forwarded a copy of the foregoing document by first-class United States mail, postage prepaid, to the following: Todd F. Truntz, Esquire Keefer Wood Allen & Rahal, LLP 635 North 12`h Street, Suite 400 Lemoyne, PA 17043 Randall L. Wenger, Esquire Boyle, Neblett & Wenger 4660 Trindle Road, Suite 200 Camp Hill, PA 17011 C r~ Lisa D. Stern BE01/ 706842. 1 VERIFICATION I, Lisa D. Stern, am counsel for Defendant Allstate Life Insurance Company herein and am authorized to make this verification on its:-behalf. Since Allstate Life Insurance Company has its principal places of business outside of this Commonwealth and is not available to make this verification at this time, I hereby verify that the averments and denials in the foregoing answer and counterclaim and cross-claim for interpleader are true to the best of my knowledge, information, and belief. I understand that this verification is made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities. I SUS, - ., ~ I ~~~ Lisa D. Stern Dated: May 19, 2010 BE01/ 706842. l H~T~u~ ~ • 01/1812005 14:08 '717730025a ~ jSb~~~ PacE 81- ~`C y~l.S_ O YC~RPPL.IG1T10N FOR THE Al~$U~Ee ADYANTII[IE Pl,u8 ANNOli1/ . -- ~~"~~~ lsausd by-/instate lire fnsurence Company • 3Ya0 S Bath Street' lJntaln. Nebnaka 98aQ8~te~ • 800-755775 Matte Clwdt psyabb to Allaare LNe tnsurrmos Company tiot968 ~~ - Anrwhy Number GA 1 8 3 8 2 4 2 9 i,,,,e Hate a r r __ ~s r z°° •r 1. 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A~reia tdb a+aY eM~ to o~ chats on new buafneae u sny one 7. Replacement Do you have any exlstlnp annuity or hre r~urenoe contracts? ~lrtes O No InfOi711allon tM1Hll rots annuity replace or change arty extating annuity tx life insurance? Q Yes ~1v6 Br rba, otr~tsbe ti+e Adbwing) Comparry policy No. 8. 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The hretnrral Rararars Sarrl~eeQdeea not requhe your~oJonsart! to art' prarkdam rd tltls dodnnarrt atlter titan the wrtlflwdoe .etpared to Sepned at pate -L / 1.~:- / ~~~ 10. A~811t Ull;e Olely 7b the beat or my knowledge the insured has an extttting enrtuity or IsfB tnsurentx eontreol ~ Yes D No fla you have arty raasorr tp p.l"rave [net tits annuity apptbd for is to n~faos-~gr~ngaJ/~ ~ngillt+!-Q or Urb lnwran O s •~No IrtsUtutlon t' 1~ ~ Name ~a ~ Phone No C rI trl) r1 Li f 3a9 r I1Aent Sg Sot sec. NoJApent No.1~ 9' y `~ £~ '7 y E-Marl address ~ ~ Fi1X No (~ i ~'!) ,~30- 4~ Sy ~BDlsea OYYNER - YVMnE INSURER - YELLOW AGENT -PINK AI;iFJdL~/ -GOLDENROD FI (Ot/C6) Allstate Life Insurance Company I I ~~~, PO Box 94260 Palatine IL 60094-4260 LOUISE I ICAPP 626 HUMMEL AVE LEMOYNE PA 17043-1829 RE: Allstate® Advantage Plus #GA18382429 Telephone: 1-800-755-5275 Fax: 1-866-628-1006 January 20, 2005 Your Representative', BONNIE L SNYDER PNC INSURANCE SERVICES, INC 620 LIBERTY AVE, 26TH FL ATTN: DOREEN MILLS PITTSBURGH PA 15222-2705 (412)000-0000 You've made a wise decision in purchasing the Allstate® Advantage Plus. We are happy to provide you with a product that will help you reach your financial goals. Here are some of the benefits you'll receive: Guaranteed Principal and Interest No more worrying about stock market downturns. Your contributions are never at market risk because you earn interest at this rate for a specified period of time with a 1.50% bonus in the first year.' Income Tax Deferral Your money can grow faster because you don't pay taxes on the earnings until you make a withdrawal.2 Flexible Income Options Getting ~rour money is easy. Once you decide it's time to receive regular income, simply choose from a number of payout options. Financial Strength You can sleep better at night knowing your annuity is backed by the financial strength and safety of Allstate Life Insurance Company. That means we'll be around to keep our promises to customers like you. Liquidity Options This product offers withdrawal options to access your money without terminating your annuity contract.2 Endosed you will find a copy of the annuity data page and any other required documents for your annuity contract. You should keep all of these documents with your contract. Thank you for choosing Allstate® Advantage Plus. We recommend that you compare the information on your annuity data page with the information on your application. If you have any questions, please call our Annuity Services Department at 1-800-755-5275 or your Financial Representative. ' The guarantee of principal and interest is subject to the claims-paying ability of the issuing insurance company. Z Distributions taken prior to annuitization are generally considered to come from the gain in the contract first. If the contract is tax qualified, generaly all wfthdrawals are treated as distribution of gain. Withdrawals of gain are taxed as ordinary income and, if taken prior to age 5954, may be subject to an additional 10°~ federal tax penalty. 677Q09H7.N01 uuooax~~rr„mmrxaaoo Important Privacy Policy Notice At Allstate Life Insurance Company we value you as a customer. We also share your concerns about privacy. We are sending this notice to explain how we treat personal information ("customer information") that is not public. This is information that we obtain from you or other sources when we provide you with products and services. We want you to know that we respect your privacy; and we protect your information. We do not sell customer information. We do not share your information with persons, companies, or organizations outside of Allstate Life Insurance Company that would use that information to contact you about their products and services. We expect persons or organizations that provide services on our behalf to keep your information confidential, also expect those persons or organizations to use your information only to provide the services we've asked them to perform. We communicate to our employees the need to protect your information. We have established safeguards (these are physical, electronic, and procedural) to protect this information. Below are answers to questions that you might have about privacy. You may be wondering What do we do with your information? Allstate Life Insurance Company does not sell your customer or medical information to anyone. We do not share it with companies or organizations outside of Allstate Life Insurance Company that would use that information to contact you about their own products and services. If that practice were ever to change, we would offer you the ability to opt out of this type of information sharing. Also, we would obtain your consent before we share medical information for marketing purposes. Your agent or broker may use your information to help you with your insurance needs. We may also communicate with you about products, features, and options in which you have expressed an interest. Without your consent, we may provide your information to persons or organizations in and out of Allstate Life Insurance Company. This would be done as permitted or required by law. We may do this to: Full a transaction you have requested. Service your policy. Market our products to you. Investigate or handle claims. Detect or prevent fraud. Participate in insurance support organizations (Information from a report by an insurance support organization may be retained by that organization and distributed to other persons.). Comply with lawful requests from regulatory and law enforcement authorities. These persons or organizations may include: Our affiliated companies. Companies that perform services, including marketing, on our behalf. Other financial institutions with which we have an agreement for the sale of financial products. Other insurance companies to perform their role in an insurance transaction involving you. Businesses that conduct actuarial or research studies. Persons requesting information pursuant to a subpoena or court order. Your agent or broker. What kind of customer information do we have, and where did we get it? Much of the information that we have about you comes from you. When you perform certain transactions, you may give us information such as your name, address, and Social Security number. These transactions include when you submit an application for insurance, submit a request for insurance, submit a request for products and services we offer, or submit a request for an insurance quote. We keep information about the types of services you purchase from us and our affiliates. Examples of this include premiums, account balances, and payment history. We may collect information from outside sources such as consumer reporting agencies and health care providers. The information we collect may include the following: GLB1 B77Q09H7.N03 aramozei~w,a+erzemo Loss information reports. Motor vehicle reports. Credit reports. Medical information. How do we protect your customer information? We expect any company with whom we share your information to use it only to provide the service we have asked them to perform. Information about you is also available with Allstate Life Insurance Company to those individuals who may need to use it to fulfill and service the needs of our customers. We communicate the need to protect your information to all employees and agents. We especially communicate this need to individuals who have access to it. Plus, we have established physical, electronic, and procedural safeguards to protect your information. Note that if your relationship with us ends, your information will remain protected. This protection will be provided according to our privacy practices outlined in this Important Notice. How can you find out what information we have about you? You may request to see, or obtain by mail, the information about you in our records. If you believe that our information is incomplete or inaccurate, you may request that we correct, add to, or delete from the disputed information. In order to fulfill your request, we may make arrangements to copy and disdose your information to you on our behalf. This may be done with an insurance support organization or a consumer reporting agency. You may also request a more complete description of the entities to which we disclose your information, or the conditions that might warrant such disclosures. For Montana residents, a request may be made to obtain the name(s) of any entities to which we have disclosed your medical information during the preceding three years. We hope you have found this notice helpful. If you have any questions or would like more information, please don't hesitate to contact your agent or broker or Customer Service Center at 1-800-755-5275. GL61 877Q09H7.N03 waoaxe~toawwr,~ i me~z9mo ANNUITY DATA CERTIFICATE NUMBER ................................................ GA18382429 ISSUE DATE : .....................................................January 18,2005 TYPE OF PLAN :......................................................Non-Qualified INITIAL PURCHASE PAYMENT: AMOUNT : ...................................................... $ 25,000.00 GUARANTEED RATE : ......................................... 4.50% for 1 Year MINIMUM GUARANTEED RATE: Contract Years 1-10 : ................................................... 2.0% Contract Years 11 8~ thereafter :............................................ 3.0% OWNER : .......................................................... LouiselKaPp ANNUITANT : ....................................................... LouiselKaPP AGE AT ISSUE :......................................................... 79 SEX :............................................................. Female PAYOUT START DATE : ............................................... June 21, 2015 (The latest date annuity payments must begin.) BENEFICIARY Kathleen Marbach RELATIONSHIP TO OWNER Friend PERCENTAGE 100% DPG95-1 Bonnie LSnyder/GA067837 ALLSTATE LIFE INSURANCE COMPANY A Stock Company Home Office Northbrook Illinois 60062-7154 Flexible Premium Deferred Annuity Contract with Bonus Interest This Contract is issued in consideration of the initial purchase payment and any application. Allstate Life Insurance Company will pay the benefits of this Contract, subject to its terms and conditions. Throughout this Contract, "you" and "your" refer to the Contract's owner(s). "We", "us" and "our" refer to Allstate Life Insurance Company. This flexible premium deferred annuity provides a cash withdrawal benefit and a death benefit during the Accumulation Phase and periodic income payments beginning on the Payout Start Date during the Payout Phase. This Contract does not pay dividends. PLEASE READ YOUR CONTRACT CAREFULLY. This is a legal Contract between the Contract owner(s) and the insurer. Return Privilege If you are not satisfied with this Contract for any reason, you may return it to us or your agent within 30 days after you receive it. We will refund any purchase payments to you. Chairman 8~ Secretary Chief Executive Officer Flexible Premium Deferred Annuity Contract with Bonus Interest LU4409CW Page 1 TABLE OF CONTENTS THE PERSONS INVOLVED .............................................................. Page 3 ACCUMULATION PHASE ............................................................... Page 4 PAYOUT PHASE ...................................................................... Page 6 INCOME PAYMENT TABLES .. .......................................................... Page 8 GENERAL PROVISIONS ............................................................... Page 10 LU4409CW Page 2 THE PERSONS INVOLVED Owner The person named at the time of application is the owner of this Contract unless subsequently changed. As Owner, you will receive any periodic income payments, unless you have directed us to pay them to someone else. You may exercise all rights stated in this Contract, subject to the rights of any irrevocable beneficiary. You may change the Owner or Beneficiary at any time. If the owner is a Natural Person you may change the Annuitant prior to the Payment Start Date. Once we have received a satisfactory written request for an Owner, Beneficiary, or Annuitant change, the change will take effect as of the date you signed it. We are not liable for any payment we make or other action we take before receiving any written request for a change from you. You may not assign an interest in this Contract as collateral or security for a loan. However, you may assign periodic income payments under this Contract prior to the Payout Start Date. We are bound by an assignment only if it is signed by the assignor and filed with us. We are not responsible for the validity of an assignment. If the sole surviving Owner dies prior to the Payout Start Date, the Beneficiary becomes the new Owner. If the sole surviving Owner dies after the Payout Start Date, the Beneficiary becomes the new Owner and will receive any subsequent guaranteed income payments. If there are two Beneficiaries, each becomes a joint owner and any subsequent guaranteed income payments will be paid to them. If more than one person is designated as Owner: • Owner as used in this Contract refers to all people named as Owners, unless otherwise indicated; • any request to exercise ownership rights must be signed by all Owners; and on the death- of any person who is an Owner, the surviving person(s) named as Owner will continue as Owner. Annuitant The Annuitant must be a Natural Person. The Annuitant is the person named on the Annuity Data Page but may be changed by the Owner as described above. If the Annuitant dies prior to the Payout Start Date, the new Annuitant will be: • the youngest Owner; otherwise, • the youngest Beneficiary. Beneficiary If there are no surviving owners, the beneficiary will receive the Death Benefit when you die. The Beneficiary is the person(s) named on the Annuity Data page, but may be changed by the Owner, as described in the Owner provision above. Beneficiary classes are defined as primary and contingent beneficiaries. You may name more than one beneficiary in a class. Unless otherwise designated, all beneficiaries named in a class will share equally in the Death Benefit. All those named as primary beneficiaries will receive the Death Benefit of this contract provided they survive you. The share of any beneficiary who does not survive you will be paid to the rest of the beneficiaries in the same class. If no primary beneficiary is living at the time of your death, all those named as contingent beneficiaries will receive the Death Benefit. If you do not name a beneficiary or if the beneficiary named is no longer living, the beneficiary will be: • your spouse if living; otherwise LU4409CW Page 3 • your children equally if living; otherwise • your estate. The Beneficiary may become the owner under the circumstances described in the Owner provision above. The Beneficiary may assign benefits under the contract, as described in the Owner provision above, once they are payable to the Beneficiary. We are bound by an assignment only if it is signed by the assignor and filed with us. We are not responsible for the validity of an assignment. Natural Person As used in this Contract, Natural person means a living or trust entity that is treated as an individual for Federal Income Tax purposes under the Internal Revenue Code. ACCUMULATION PHASE Accumulation Phase Defined The °Accumulation Phase° is the first of two phases during your Contract. The Accumulation Phase begins on the Issue Date stated on the Annuity Data page. This phase will continue until the Payout Start Date unless the Contract is terminated before that date. Contract Year "Contract Year" is a one year period beginning on the issue date of the Contract and on each anniversary of the issue date. Purchase Payments You may make subsequent Purchase Payments during the Accumulation Phase until you attain age 86. The number of Purchase Payments is unlimited prior to age 86. The minimum Purchase Payment amount is $50. We may limit the total dollar amount of the Purchase Payments. Guarantee Period The interest rate for each Purchase Payment is guaranteed for 12 months from the day you make the Purchase Payment. This 12 month time period is called the "Guarantee Period." After the initial 12 month Guarantee Period, and for each subsequent 12 month Guarantee Period in the Accumulation Phase, we will declare an interest rate which will be applicable to each Purchase Payment. Interest Credited We will credit interest daily at a rate which compounds over one year to the interest rate determined by us for the particular Guarantee Period that applies to each Purchase Payment. Interest will be credited to the initial Purchase Payment from the issue date. Interest will be credited to subsequent Purchase Payments from the date of receipt. Interest rates for renewal guarantee periods will not be less than the Minimum Guaranteed Annual Interest Rate shown on the Annuity Data page. Account Value Your °Account Value" is equal to the Purchase Payments plus credited interest less prior Withdrawals, including any Withdrawal Charges and applicable taxes. Withdrawal You have the right to withdraw part or all of your Account Value at any time during the Accumulation Phase. A Withdrawal must be at least $50. If any Withdrawal reduces the Account Value of your Contract to less than $1,000, we will treat the request as a Withdrawal of the entire Account Value. If you withdraw the entire Account Value, the Contract will terminate. LU4409CW Page 4 When you make a Withdrawal, your Account Value will be reduced by the amount paid to you and any applicable Withdrawal Charge and taxes. We will reduce your Account Value by first withdrawing from the interest credited on Purchase Payments, beginning with the first Purchase Payment received by us and continuing with successive Purchase Payments. If the entire amount of interest credited has been withdrawn, we will reduce your Account Value by withdrawing from the Purchase Payments, beginning with the first Purchase Payment received by us and continuing with successive Purchase Payments. Free Withdrawal Amount Each Contract Year, including the first, the "Free Withdrawal Amount" is equal to 10% of the Account Valueas of the beginning of the Contract Year. Each Contract Year you may withdraw the Free Withdrawal Amount without a withdrawal charge. Any Free Withdrawal Amount which is not withdrawn in a year may not be carried over to increase the Free Withdrawal Amount available in a subsequent year. Withdrawal Charge Withdrawals in excess of 10% of the Account Value will be subject to a Withdrawal Charge as shown on the Annuity Data Page. For each Purchase Payment or interest Withdrawal, the year is measured from the date we received the Purchase Payment. The Withdrawal Charge is determined by multiplying the percentage corresponding to the year times each Purchase Payment or interest Withdrawal that is in excess of 10% of the Account Value. Taxes Any premium tax or income tax withholding relating to this Contract may be deducted from Purchase Payments or the Account Value when the tax is incurred or at a later time. Death Of Owner Or Annuitant A Death Benefit may be paid to the Owner determined immediately after the death if, prior to the Payout Start Date: • any Owner dies; or • the Annuitant dies and the Owner is not a Natural Person. If the Owner eligible to receive the Death Benefit is not a Natural Person, then the Owner must receive the Death Benefit in a lump sum within five years of the date of death. Otherwise, within 60 days of the date when the Death Benefit is calculated, the Owner may elect to receive the Death Benefit under an Income Plan or in a lump sum. Payments from the Income Plan must begin within one year of the date of death and must be payable throughout: • the life of the Owner; or • a period not to exceed the life expectancy of the Owner; or • the life of the Owner with payments guaranteed for a period not to exceed the life expectancy of the Owner. Any Death Benefit payable in a lump sum must be paid within five years of the date of death. If no election is made, Account Value less any applicable taxes will be distributed at the end of the five year period. If the surviving spouse of the deceased Owner is the new Owner, then the spouse may elect one of the options listed above or may continue the Contract in the Accumulation Phase as if the death had not occurred. If the Contract is continued in the Accumulation Phase, the surviving spouse may make a single Withdrawal of any amount within one year of the date of death without incurring a Withdrawal Charge. If the Contract is continued and there is no Annuitant, the new Annuitant will be the surviving spouse. Death Benefit The Death Benefit is equal to the Account Value. We will calculate the value of the Death LU4409CW Page 5 Benefit as of the date we receive a complete request for payment of the Death Benefit. A complete request includes due proof of death. PAYOUT PHASE Payout Phase Defined The "Payout Phase" is the second of the two phases during your Contract. During this phase the Account Value, less any applicable taxes, is applied to the Income Plan you choose and is paid out as provided in that plan. The Payout Phase begins on the Payout Start Date. It continues until we make the last payment as provided by the Income Plan chosen. Payout Start Date The "Payout Start Date" is the date the Account Value is applied to an Income Plan. The anticipated Payout Start Date is shown on the Annuity Data Page. You may change the Payout Start Date by writing to us at least 30 days prior to this date. The Payout Start Date must be on or before the later of: • the annuitant's 90th birthday; or • the 10th anniversary of this Contract's issue date. Income Plans An "Income Plan" is a series of payments on a scheduled basis to you or to another person designated by you. The Account Value on the Payout Start Date, less any applicable taxes, will be applied to your Income Plan choice from the following list: 1. Life Income with Guaranteed Payments We will make payments for as long as the Annuitant lives. If the Annuitant dies before the selected number of guaranteed payments have been made, we will continue to pay the remainder of the guaranteed payments. 2. Joint and Survivor Life Income with Guaranteed Payments We will make payments for as long as either the Annuitant or Joint Annuitant, named at the time of Income Plan selection, lives. If both the Annuitant and the Joint annuitant die before the selected number of guaranteed payments have been made, we will continue to pay the remainder of the guaranteed payments. 3. Guaranteed Payments for a Saecified Period We will make payments for a specified period beginning on the Payout Start Date. These payments do not depend on the Annuitant's life. The number of months guaranteed may be from 60 to 360. We reserve the right to make available other Income Plans. LU4409CW Page 6 Payout Terms and Conditions The income payments are subject to the following terms and conditions: If the Account Value is less than $1,000, or not enough to provide an initial payment of at least $20, we reserve the right to: change the payment frequency to make the payment at least $20; or terminate the Contract and pay you the Account Value in a lump sum. If we do not receive a written choice of an Income Plan from you at least 30 days before the Payout Start Date, the Income Plan will be life income with guaranteed payments for 120 months. If you choose an Income Plan which depends on any person's life, we may require: • proof of age and sex before income payments begin; and • proof that the Annuitant or Joint Annuitant is still alive before we make each payment. After the Payout Start Date, the Income Plan cannot be changed and Withdrawals cannot be made. If any Owner dies during the Payout Phase, income payments will continue to the successor Owner as scheduled. LU4409CW Page 7 INCOME PAYMENT TABLES The initial income payment will be at least the amount based on the adjusted age of the Annuitant(s) and the tables below, less any federal income taxes which are withheld. The adjusted age is the actual age on the Payout Start Date reduced by one year for each six full years between January 1, 1983 and the Payout Start Date. Income payments for ages and guaranteed payment periods not shown below will be determined on a basis consistent with that used to determine those that are shown. The Income Payment Tables are based on 3.0% interest and the 1983a Annuity Mortality Tables. Income Plan 1 -Life Income with Guaranteed Payments for 120 Months Monthly Income Payment for each $1,000 Applied to this Income Plan Annuitant's Annuitant's Annuitant's Adjusted Male Female Adjusted Male Female Adjusted Male Female Age Age Age 35 $3.43 $3.25 49 $4.15 $3.82 63 $5.52 $4.97 36 3.47 3.28 50 4.22 3.88 64 5.66 5.09 37 3.51 3.31 51 4.29 3.94 65 5.80 5.22 38 3.55 3.34 52 4.37 4.01 66 5.95 5.35 39 3.60 3.38 53 4.45 4.07 67 6.11 5.49 40 3.64 3.41 54 4.53 4.14 68 6.27 5.64 41 3.69 3.45 55 4.62 4.22 69 6.44 5.80 42 3.74 3.49 56 4.71 4.29 70 6.61 5.96 43 3.79 3.53 57 4.81 4.38 71 6.78 6.13 44 3.84 3.58 58 4.92 4.46 72 6.96 6.31 45 3.90 3.62 59 5.02 4.55 73 7.13 6.50 46 3.96 3.67 60 5.14 4.65 74 7.31 6.69 47 4.02 3.72 61 5.26 4.75 75 7.49 6.88 48 4.08 3.77 62 5.39 4.86 Income Plan 2 -Joint and Survivor Life Income with Guaranteed Payments for 120 Months Monthly Income Payment for each $1,000 Applied to this Income Plan Female Annuitant's Adjusted Age Male Annuitant's 35 40 45 50 55 60 65 70 75 Adjusted Age 35 $3.09 $3.16 $3.23 $3.28 $3.32 $3.36 $3.39 $3.40 $3.42 40 3.13 3.22 3.31 3.39 3.46 3.51 3.56 3.59 3.61 45 3.17 3.28 3.39 3.50 3.60 3.69 3.76 3.81 3.85 50 3.19 3.32 3.45 3.60 3.74 3.87 3.98 4.07 4.14 55 3.21 3.35 3.51 3.68 3.87 4.06 4.23 4.37 4.48 60 3.23 3.37 3.55 3.75 3.98 4.23 4.47 4.70 4.88 65 3.24 3.39 3.57 3.80 4.07 4.37 4.71 5.04 5.34 70 3.24 3.40 3.59 3.83 4.13 4.48 4.90 5.36 5.81 75 3.25 3.41 3.61 3.86 4.17 4.56 5.04 5.61 6.22 LU4409CW Page 8 Income Plan 3 -Guaranteed Number of Payments Specified Period Monthly Income Payment for each $1,000 Applied to this Income Plan 10 Years $9.61 11 Years 8.86 12 Years 8.24 13 Years 7.71 14 Years 7.26 15 Years 6.87 16 Years 6.53 17 Years 6.23 18 Years 5.96 19 Years 5.73 20 Years 5.51 The monthly Income Payment benefits stated in the tables are guaranteed. If on the Payout Start Date the Income Payment benefit tables we are using for this class of contract provide a larger benefit for the same form of annuity, the larger amount will be paid. LU4409CW Page 9 GENERAL PROVISIONS The Entire Contract The entire contract consists of this Contract, any attached application, and any attached endorsements. All statements made in written applications are representations and not warranties. No statement will be used by us in defense of a claim or to void the Contract unless it is included in a written application. Only our officers may change the Contract or waive a right or requirement. No other individual may do this. We may not modify this Contract without your consent, except to make it comply with any changes in the Internal Revenue Code or as required by any other applicable law. Incontestability We will not contest the validity of this Contract after the issue date. Misstatement Of Age or Sex If any age or sex has been misstated, we will pay the amounts which would have been paid at the correct age and sex. If we find the misstatement of age or sex after the income payments begin, we will: • pay all amounts underpaid including interest; or • stop payments until the total payments are equal to the corrected amount. For purposes of the Misstatement of Age or Sex provision, interest will be calculated at an effective annual rate of 6%. Evidence of Survival We may require evidence of the survival of the Annuitant. Settlements We may require that this Contract be returned to us prior to any settlement. We must receive due proof of death of the Owner or Annuitant prior to settlement of a death claim. Due proof of death is one of the following: • a certified copy of a death certificate; or • a certified copy of a decree of a court of competent jurisdiction as to a finding of death; or • any other proof acceptable to us. Any full Withdrawal or Death Benefit under this Contract will not be less than the minimum benefits required by any statute of the state in which the Contract is delivered. Deferment Of Payments We reserve the right to defer payment of any Withdrawal for up to six months after the date you request it. If state law requires any interest to be paid, interest would be payable from the date the withdrawal request is received by us to the date the payment is made. Conformity with State Law This Contract is subject to the laws of the state in which the Contract was issued. If any part of the Contract does not comply with the laws, it will be treated by us as if it did. LU4409CW Page 10 Annual Statement At least once a year, prior to the Payout Start Date, we will send you a statement containing Account Value information. We will provide you with the Account Value information at any time upon request. The information presented will comply with any applicable law. Page 11 Flexible Premium Deferred Annuity Contract with Bonus Interest This flexible premium deferred annuity provides a cash withdrawal benefit and a death benefit during the Accumulation Phase and periodic income payments beginning on the Payout Start Date during the Payout Phase. Page 12 VM WMM YI O ~ caP~ D~.J.RA~I~E P'OWLIt ~F ATr[`~RI~E~J ~'O~t LtaU 1 SE I. I+:.API' ~'rr.p~red hy_ .1;-n L. 13apWp ,~ ASSGGiatCS x,4.5 Sir'fh,oma~ Crnnt, 5uitc. 12 lTarris~t~r~, PA I71U~ (717)541-5550 4 r N W 0 d a ~T.Z'd ~'inzsi Iti~~l :wn-+.~ €O=Sti 0T0Z-SZ-Nkit ~c~~rr~~ 'i'HE PiJR1~USE OF THIS PQ1~T~;R t~F 1L'~'TORNL;Y iS 'i'U GIVE' "1'I-1.E ~'~HSON YOU .DES~GNA',1'E ('YOUR "AGL;NT") T3T~UAL7 ]'0'~Vk,RS Tti r1A~vnY~L ~rr~UR r.[tC1~'E.~tTY, WFT~C'Ii MA.Y 1NCLUl3F YUWERS 'I'CJ SFLL UR O'1'.1~F~tWISF I)1~POS,~ Or 1iNY Rk:1LL ~,R 1'ERSC7NA1.. PR(~Prk'~ Y V517Tk1(JUT A~)VANC:,~ NC)'i'I.CE ':l`()1'OU UR APPIit)VA.L B'~' YCl!_!. Tr1iS POWER OF ATT'(~RNEY DOES NOT IMPOSr.1t, L'?UTY C)N Y(]UJt A(~rl'.N~"1'C] LXL':RC;TSE GRANTT?l~ k'UWrRS, BL1T WH~.N PC)WE).LS hR>~: F XER('FSEia, YOUR AGEN T MCJST USL DUE f~Ak'H; TO hc.:T FCR YC)l1R BENT'FI"1' hNI~ TN AGC'URT~AN(:F; WITH TT~TT.S PC)WFK C)r h'ZTC?RNP;Y. Y(7T_TI~ ACIT?N"1' MhY F~3C.~I~CTSF Tl~ POWN:}tS GN~~1~1 kik,RE TTT1tCi~~(;,~iOtJ f` 1'(~TJ1.L I.~EJ.~iMR, EtIT:N A.FTT'R YOU T3P.CQME INt:APA{,`1ThTF.T7y T~N.LLSS YOLK F.XPRi/SSi .Y Ll'1v1iT TYKE DIJ)'tAT,tCN OF "1~1I7;SF., YUWT~RS C1]t YnT.J TiE~V{~kE TTi~'SE 1'UWI=RS C)Tt A ( `(.~LA'~T AC'TTNC; UN VC~Uk. BETaALI{' TBRMTNA'1'ES YC)~_TR ACrENT'fi AUTI30RTTY. YOUR AGENT lvrTJS'f KLEP YQUIt FTJNDS SEPhhAT.E FRf~rv[ YC)UR At~I~NT'S FUNDS. h CC)UILT C_:AN TAKk. AWA1~ THE: PUWT:R.S ~J"' YOT TR ACiEN'f Ir IT FINDS 7~`UUR I~GENT IS NC)T A.C'1'iNC7 PFtpi'CRLY'. TH.~ Pt7WT~I~S A1t1T1 DUTIES C)F AN AC1JN1' l1NDER A F'C)WER C?F ATT~JltNFY ARR EXPL~1 I:NED MUk.E. F[JT1LY 1N 2Q PA. C-5. CH_ 5C_ tr' THERr ]:S ANYTHING ABOUT'Z'.H151;ORM THAT Yc7U r~CI NDTUNa:>~STAND, YUU SHOULD I1SK A LAW YER (7P YUUI~ OW1~ C'I~OUSINC~ 1`d E7~1'LAIN T'r' Tc~ YUU. I T~,~V~ RLh1) OR TT.11D ~LA~3EL~ TO Ml': TH.1S NOTIC:fi ANiS 1 UNDT~RSTANl] J'1'S C'C)NTENTS. ~~! ` j T .Cl t_1IS r r. kAPP U A1'F bT.~'d azezsTld~°l :w~•aj £O-Sti 0j0Z-SZ-NFJ!' Z 0 ~C~NOWY,F~DCxI~,~NT 1+-~~~~~ ~~ ~~ ~~~~~ ,have read the attached Power cif Attorney and :gar the person identified as tl~e; went for the principal. T ]iea~eby ac:knuwkedge tha4 in the absence r-f a specific prnvisaun to the ennri-ary iti the Power c.£Attoi~ey or in 24 Pa. C.S. when l .3('.t ~ agent. T shall cxere_ise the powLrs !ur the benefit of tlyi prt~yCipul. 1 shall keep i~he, rtsset„ of tht, pnnCtPA.I separate ~'i'O[Il it7y a55ClS. I sl~~al] cxercist~ ~-easor~ablc caution and pn.~dc~~~.c- 1 shall ]cvcp a fill and acc~uratG record ofall act+ans, receipts and disbursement, nn hehaltnf the 4~rii)Cipal. bT~b'd a7 el Silti~ol T~:~1.~ :wo,~d £9=ST BTOZ-SZ-Ntit' 1)~IRARLF~ Pf)Wk,R (?F ATTORNk;Y l~Ok 1~C1Ui~F:1. hAPP OD W 0 1, I,O>JISF ;. I{ppi', of'C:urr-Ererlarld County, Pcnnsylva;tlia, hereby tevolce any and alt ~irior Powors ofAttorney and llcrehy appoint my friend, KA'i73L~+EN M. Gi1.,BERT {fortr,erly knovVq as IE~ATHLE1+.lV 1VI. M,4R,B,4C`R), ol'Cuittberland Caunty, PcruisyIvania, to act as tray ~geut (hereinafter referred [n ~s rray "J~gcnt") for me: and in iYty nsattic attd place to transact all my busine.~s and tea manage all my property Arad affi'ttirs as rompletcly As I myself mig}tl do i~[ pcrsanally l~resant, including but nc71 limited to, exer[:isin~ the following powers cont:a:ulaJ to this daGun7Btlt. T.n tlic evrnt of hA!'IiLF.EN M. GILBTRT's death ar if sYte i l1nWalltII~; 4)i- ltnA.ble to serve, ~{ Iterchy arcat>linrtt4 and Sppaint rrty sistCr, T~;i,r1;N l:. 12.r1NIf, t,f 1)Stiphin Cnua~[y, }'vrtnsyivania, to ae[ asm.y Aeertt with afl the powers set forth below. Possession n.Clliis original Faw~.r- of l~ttornc>y ~y Itr~,irN iF. Rt1,Ni{ stroll be cctnrlrisive evi~lrrtce ~tltal• )KA'f1~Lr,T:N m, f~1LBEft'i' is ~irrable tq serve oz- to continue scrrving a;; my Power of !\ttnraruy and/or A~cnt. 1. 1.:rc~cutlerr ~1'Cor,~rncts. T~~ t:nlt.r ifl[n, pc:rlQnn, n7r.~dify, extend, caurr.l, -~ cornprnu~tise, ~a~larce, ar otherw~sa act with respect to t-my contract u1'uny sari whatsoever -- inCltadfng but trot. lin.~itctl tn, Ica;;cs and rnoTtgages -- ;irtd t(~ tray any money or to transfer #itle and pa5sessictrt to any real or patscrnal properly that rn,ay he .ri;yutred in lac pate] ar tt`ansforrcd by any ccrntrart ur in [17C Ferforrnance of any oblination entered into or inottrrcci by me or on my hc:hall". ?• InveS#rnerrts. To invest in all fdrans of roS1 and personal property witl~nut an}- restricttan whatsoever as to the kind caf investa7rcn[, including, hu# not limited to, United States Treasury Brnuls which ara redeemable at p~tr ira payment oi` £ederaI e~'vtale taxes; find Iv buy, sell, trade ;~nd~or trensfr:i, without limitation, stacks, bonds, mutual fiteads end all investincnts. 3. l+~e~'istrrrti~n~Froi_,e~ To hold property uilr~~isterCd or ira #1'iC name r}t a nbmitle:e. 4. ~'er~unal Pruperty_ Ta buy ar sell securities; to }buy or sell 9t public or private Sale far cash err credit oa- partly far each, exc11.8nge, pleclgc, I4ase, give nr aciluire options 1'ttr sates ax exchatage5 or leSSCS, or lay arty olhelr riaear~ whatsoever to acgttiro, dispose of relaair, alter or rtianagt tari~,*ihle., pr intangible pcrsc-nSl property ~r Soy in#erect tliere~in, anti, without limitation, with rospcct to any seCUritii;s, to conapl_y wit~r any sticurities laws ctr rcgtilstionS, to execute indemnity agreements, to ptirch.ase insurance grad to pay earrimissions ox discounts rerluircd by an.y underwriting. 5. .ftcal PraaCrty_ Ta buy or sell fit public cr,r private sale for c[tsli or credit or part] y fcsr each, exchange, rrturtgage, Cucumber., IcasC for any proud of tirnt~, gyve or acgtairc~ uptians far sales, pttrcliases, cxo.lianges ar leases, dr..dicate, or lay any other rxtcans whatsoever, to acquire or dispose of real properly or auy interest tl7crein; to par[itian and subdivide rep] pruperiy; to manSg~ real property; to repair, alter, erect, or tctir drawn wy strracharc or pat't thereof; to execute ar~d clel fiver a deed; ai]d In f.IlC sects frlans, applicatic-ns, or other dacutricnls in ronnP~tior, -z- r c~ 0 N C r a N H N r 4 0 V W Q a bI~S'd ~'+p7stikl=81 :wo~j ~O~S~ 0t02-~-Nt1t ther c:with :rr'Id can such other acts its may he requested by uny govcrnmc~tl or other' al.ttlxorit_y having, ur purp~irlirtg to have, jurisdiction. f_,. ,S'p~ unties. To vote in ~Serson or by proxy at any rlleetlri}~, to join ita arty rrlGrger, reorgarrirati4il, voting-trust plan nr otllcr concerted action of security haldcrs, in makrr payments in rrnureclion therewith, and in general to exercise all rights of. a sccetrity holder. 7. Insurance. 3'0 procure, alter, extend or cancel insurance agctirrsl any and ^Jl risks aileciing property at~d persons, and against liability, dtunage or claim rt~ ally sort. My A.grtat shall nr,t have. the authority to tr-an51'c;~r ownership, assign ownership, change beneficiaries, cdosu atxllor rash trot tlir: policy(ies) at~tl make any and all changes hCJShe deems nee:essaly t© my insurance pone:ie:s. tS. Rc~tirem ~ni Plans- Ta crC3Le; at~d contnbuic to arc employee benefit lal1ur rncluding a plan fw a .elf ~'rtrployed individual fvr my benefit to select any P:~yment opt;or~ uridcr at~y 1'Rll ~?~- el~t.ployee benclii plan in which I am ii liartieipant includitlg plans for self-employed iniitvldttalS ur to change options I have selectul; to make vr~luntaty ~otriributictns to curb plans; Let tralte "rollnvPeS" of plan benefits tole ether retireulctlt plans; io apply it~r and rec~:ivc l,ayrnents tend bc:nc:fits; to waive ri~!hLs given to nou-crrrplnyee spouses tu~rdcr slate or federal I1w; to change the beneficiary of my account -~r interest in any employe boncrt plan inchrciing plans fc~,- a sole-employed individual. My Age.tat shu11 not l,av~. the authority io chttngc the hetteficiary clrsil,~nation oil any of my retirctricnt plans or products. 9. Lna~ic, To borrow money in such atriuurrly for such periods and upon such tcmzs ss my tibeaal shall deem proper and to secure any load by the motrtRa_a.,,e or pledge crf any prnlterty, rynd 1 sp~cifteally autl-ori~e my agent to borrow money And to pledge property as collateral for the propose of purchasing j,Tnited Statf:;s Trea ,ury L~onds which are redeema.hlc at par in payttaer~t ofi ferlerAl e;:i~ste taxes. I C~• ii'arrk Acrnur:~s. ':l~o sign checks, dt-afts and other instruments ar ctthettivise make wirizdrawals from a»y cheolting, sayings, trt3nsactioia or other deposit account in my naiiic, and tc, end~-~r5c Gheclts IrAyAblc ice me and receive the proceeds thereof in cash or otheawise; to dporr and close. checking, savings, transaction or other eiepasit aeeounta in my tiatnc;; t~7 purchase and redeem savinp,s certificates, eeitifieaics of deposit or similar uistnatnents in my ria,rtru; to exercise and deli vcr receipts fear any funds withdrawn nr certificates redeemed; and is do all actfi regarding any checking ~tc:r;ount, sAVitlgs account, saving certificate, cer~ifiCatG rrf dcpostl, or similar inSi-Ztrncnt which I rthw hoer. c7r may hereafter stequu•e, th4 same; as I wuld du if personally y~iescnt_ Any firianc~ial institution m:~y caiitiriuu to rely on this power of attorney trt~trJ it reci•avcs written noticr Isom me tl,:tt this power of attomey iS revokC.d or achtal notice afury death arrcl shall be indelnllified ar,ri lteld Irarrrrlcsy by me and my eRt.AtG, j1t:~':St1nAI rCI3r'L'SCnlatiV@~ arrri heirs at;ara~st jury liahii.ity or Loss, irrclucling lawyers' fees, costs of sui l an-1 clatrns of thin] Irarl.iPS, which it might incur by relying an this power after termination or revocation but before rt recetvts tiuch ts4tiCC, or any lime hecattSe cif wrs~rlgful acts, onliSSi0n5 br rej,r~entatic,tXS of my ~_ a is C W C at I? a r C7 a N 0 r a N N r F d D r W l9 Q a bZi9'd a~~zsttti~O1 :wo~~ €O~SZ 0202-S2-NdI' agent with respect to transAations covered by this phwe,- of attornoy. My agent shall besot}}act to whaterre, banlt ,talcs and rcgulstions I wnttld be subj<:c( lo. i 1. t~sdiyid:rat R ~rirern~nt Accnrr-:~, To request anri receive ciistril~utions Iiorn any of my individual RelirenTCnt Acoot,nt$; to ~ivG ingtnrctions frn- thG purchase and sale of securities in NlosC accaunts tr, execute on my behalf a.ny pawe:rs of attorney or, other instrurnettts needed fr,r lliose purposes; and to cndarse t,Ules, check, drafts said balls a.f exchange, artd tD 1Ta~t1t~ cc~ntributi~gTS to those accounts. M.y Agcut shall not have the attlhoriry to change the henel~iciary dasigrnatio„ on any of my individual retirement arcrnants. i7... ,Saft~ ~ea7oci'l,Bntcr. 'I'u have accass In and eontao! c,verthc contents of atiy sa(~e c1~}~h •it box rentt:d by mc, tt, rent salt deposit baxe5 1tt my risme, th close uul and exeautc ar,d deliv,;r receilats for safe, dep~sii boxes in rt7y uiirne, and to do all arts rc~;arding any SAf4 deposit poxes in my flame, 'which I now have r,r r7aity hereafter ac;yuire, the sarnc as 1 could do iI• j~cr;;ortally present, provided that my agetyt shalt tTOt deposit ot~ keep in att)r such safe deposit Ltiox any property iri which nay agent hfla a personal interest. llny financial institution may continue to rely c,n this },awcr of attorney tn7~ti1 it rcr..Giv,:s written. native fro,r mt,. t}r~,t this Power of attorney ,s rc~v,~kcd car a,,tual notice ol'my delth r~r,d shall bo ia,demnifed and held hsr~~tlass by me anti ,r,y esi2t~, per-SC,,,a] re}7rc,~cntalives and heirs a1;linsl any liability ar li)SS, i.nclud,ng la,veyers' fees, r:„st , n f suit anct cla,rY,:; of third parties, which it might inctn' by relyirt},; an this power aiicr t~ni~ination or a'cvUL'ati0n bUL before it ru.:e:i:ve5 5Uc1T Notice, ~r 8t my tirnc hecarzsc: of wrongful act';, orr,issions Ur represCntalian5 of my agent will, respect td tranbeclinn& covered by this sower of .,ttorney_ My agent s1,aII be subjact to whstcvc.r bank rules ana regulations T wUUld be Sulzie,;i to. 13. .Receipts and Anornval pj'r4ccnun~s. Ta receive payment urany 1+ind, including a begUCSt, rlevisc, gift or otttcr transfer vf•ical hr par~vn3l pmpctrty to me in niy O,uT~ a'i~,t nr as 7 fiduciary for another, and to give full receipt at~a ac:tluittarfcc tlaertfore, ar a raAmdang bond tl,ereforc, tea approve acec~t,nts of any hlaS111CS5, estate, trust, paah.~ership or othor transaction what5twver iri which i may h3vo any interest of any nature Whatsoever, and to enter` into gray c.onzpromisc: and releasa in regard tharcto- 14, ~'vntprnmise ia~d Arhitrrrlion of CYain;s. '1'o coml~rc,rTlisc yr artaitrate any claira~ in wh,c1, I may be in any rnarTaaer intrrwt4~d, and far that purrrnse to enter info agreement to cc„npramise ar 3rhitrate, and either through eouasal or otherwise to carry on such corr,promise rn- arbitratiori aatd tea°furnn ar enforce any aw~u-d t;nlered in arhittation. 14. ~stirrcr~un [drtd.lie~e~-rti~e Clairr~. ',1.•D institute, prosec'utc, defend, cort,prUaxtiSe, rn• ~tl,crwisc disport: af, and 1:h appear forme fat, z~ray proceedi.slgs at ]ativ ar in equity or c,therwise be:Corr any tribunal far tha enforcement nr far the clefcrisc of any claim, either alone or in car3junctian with other Parsons, relating ls~ me nx t4 any property o~mi~» car ;soy other pcrsUr, (i,acludin,r, tl,r authority to sue if this power' hf flttarney is not honorcd~, and to retflin, discharge -3- M7 W 1 z ti r 0 N d X K N O C Q d r is C IA d r ~7 N 0 r 0 N N r a Q t? a h Q a ;wo,a~ ~:Sj 01;0z-SZ-NdC b~i~'d ale~st the°1 MMV W ~ Y! $ ` 1` r 1 and SttbSti tide cnurlsc[ and authorize appearance of such cnunscl lobe entered ferr mein ~c~y such aclirttl of prttcecding. ~ N 0 1 G- T~ua, ~.c. To {arcpare, execute and file in my name acrd un my L7c~ia11' any ~'etui ~~., ~ report, protest, application !or rolTCCtian of Ass~sS~d valuation of real or other prtyperry, appeal, X brit, claim far refurid orpetition rnclttditig petition to the ilnited States Tax Cout~ in connection N with any tax imposed o.r purported to be imposed by any govcrtunertt, authority Ur agency, ar claiivcci, leviccl ar assessed by any gc~vecnrnenl, authority or agency atilt co pay any such tax anti d to obtain any extension of tune fnr any ul'the fc~regoirlg; to exccttte waivers c,f restnclion5 rn, the y; asscssrncnt and cUllec:tiun of defi~,icncy in any tax; let P..XCCtttp Closing a~;roCmeilts and all Other ~ dncumenis, insi.nii~lccats anti pzipors relaNtifi to arty tax liabii.tty of mine of any sort; to inct.itutc; ~ tt~tcl carry Ur1 eitlttr through rctutisEl nr otherwise any proceeding in Gorincctiun with contesting ~ arty such laX aa' to recnvcr any tr~x pfi~(l, 4r tci resigt any Claim j:Ur xddil10IIa1 taX car Ably prnp~secl a ~ asse;ssnzent ur letiry tttcrenf., and to ranter iota auy agt•eemGnts or stipulations for compromise ur F other adjusttltertl or dislt~isition of atiy tax. a 1.7- l3nnrl~. To pure.lYRSe, fttr me Llnitcxl 5tatcs of Aruc:rica Treasury l~otads of the ki t~r1 ~ which are reriee111ab1r: at par in paymer]t c1I federal Bstatu IaxQS; td bO1TC1W 1laotit.y and nltit~iin b credit in my t7~urte from ally source fut such purpose, to rnalce, execute, endorse and deliv~:r y prurnissctry uctles, c•]r~t115, agreetitC:nlti or other Ubli~,x[ittns f~~r stu11 bonds axtcl, aS security ilierefaic, to pledpc, mort~l~e and assigta ~,y Sfucks, hnttds, bGC~urities, in5tiranc4 values and ctthrr propet~ics, real or personal, in which I may have R!1 itilerest, and td airvx~;e lur the a s1#'ekr:eping arld custody oi•;irty such •1'reastzry Bonds. ~ ~ lb. 1?isrl~imcr_ To execute, deliver aitd file or record disr:laimers 4fttny pztz't or:~11 of ~_ 0 . slay property, powc;r ttr interest passing to or fur rite undez~ ~9uy u~i11, deed ar trust ar olhe,rurise; ~ :trd tU direct rrty spauRB'S Cxectztor to elu;l izt gttali.fy or to elect not to c{u~-lify for tliC marital dcductiou any portion or all ctf a rrcarital daductiot7 trust created for me by my spouse. 0 N 19. Suwusad F.lxcrion. To relc:asp or disclaitrt any inlc.rrst in pmperty an lrchdlf of me 0 (tlcc Principal). ~ direct toy Agent Co disclaim arty Azad all iritCresl in any and all property if it N uttpacts ar delays my eligibility ti>r private and public benefits, in.clu.d.in~ state, ]Heal, and fr_,dcra] ~ henefits; specifically, Z riirert my Agent(s) to i•cFuse t0 Lake Al" Claur, R b`pUUS1l eleCtlAt7 I#•11 W1lI N impact or delsiy the. recervin~ car eligibility of•mexiical assrstatace henefits. i specafi.cally direct my ~ ~' Agent to rcfusa to claii7Y ap electron share in such a sihtation, and I Gonsidet- r-eiiisiri~* to take ar Q claim a s17ousal Glectiora a parl• of nay estate planning, and it is my wish artd relzecu my inteution5 ~ regarding my estate platuaing and rrty direetinns of my estate; to refilsc~ to Cake or claim the ~ eleclivt shard if it impacts or dGlitys my cli~;ibility for aiay pr'ivaty or public henefits. ~ 2v. /j „r~l.~~~nc~-zr nfnrhzrs. Ta enipioy acc;UUntatlta, attorneys-et-law, investn~c,7t ¢ Gout~sc;l, cusrodialls, agents, Scrvartls, atnd otlll':t-S, and to delebatr: to lherrt, t0 remove t]te;rn, alld to pay tllcm such remuneration as my agc;cits shall deem proper. W _~_ a :u,o.a~ }~O:ST aTez-SZ-Nti!' bT.B'd a3p'i~itti-~l Z1. ~xccuriuir ofDnc~u~irexts. To execute, dcIiver, file. for record, rartcel, modify, ertdar5e, acquire or dispose of any instrument int~lutiing, but not limited to, stuck anci bond puwer'fi, vehii:lc regiStratiatis, finattoing statcntetlts and rotated filing dUGtln9ErttS, repc~rts of any snrt to any f;oven~tni;nt, authority or agcritry, as regttrre;d ttr pen7tYttetl by law, deeds with of without Covenants nr wat-Canlies, attd any otlYer iiacvn~ent appropriate i'ar carrying out any of the farcgoing, ppWdrS. 22. Gift .hlaki'~,t;* Powers'. To make g,i[ls, as set #'orth belc-w, either outright ~~r in trust or, itt the t:ase o.f mirrors, in acaardance with the Uniform Gifts to Mitiurs Act And, fat- gifts made iir [rust, to persrnts, including my Agent, a5 otig,inal or suCCessc+r trustees Phis pitiwe;r includes the ri4ht to nta~ke additions tot an exibting trust acrd fines not require my Af;~.rtt to treat tl~e donee;; equally or pruPrn'tictnately :tnd tray entit oIy exclude oric ur mnre perrit.issible dnn~:es '1'h~ pattern fUllowed un the occaSiCtn of any Such gill (or gifts) treed nat he fiillpwed on the ncr..aswrt of any atl--er gift (or 8ii1!rs). '1'Ite gifts stall he restricted t:a: I~clcu E. Runk, tt~y Jlgtut(s}; any trust(s) fur trty lteneCt audlor fnr lEfelen IC. kank's benefit; and any urganr~atian dcsi:ril-ed itt l.1tC' Sectioct ~O1(c)(3}. lVly Agcrit and the donee of the lift shall be t'esliottsibli: its rrquity and luStice may re~.yuirc to the extCnt that a ~?.it} trlade. by my Agent is incn»sistent with my directians and Manning ui-rrt_y rrnbablc intent with t°c5pecl to the ilispositinn cf ir,y estate. The ahili~y ul- n~y Agent. to tnalce gifts of my proptrty shall be litt7itul by and shall only he rnadc: in c.onl:vrmity with nay prenuptial agrremettt, if any such agrcernent exists, l spcciiicaily direct my Agent to matte gilts to arty and all persons listed in the above paragrapU whrt he/site deem appropriate, and funher direct my Agent to make tt~nsfers i.r,cluding gifts il~~ order tfs I~rrbterl attd far,.ililate my eligibility for rublit, turd pnvale henefists, incltding medical as5istancr, so to allow meand/tar my spouse nr any farrtily member to ri;Geivt; state, la~,al, and fia~icrat hPnefits at the early possible time/datc. Furiher,l cansiclt:r lransiers and gifting ur orde>• to obtain such benefits to ttii: in accardant;o with my estate piattning, and 1 direct Such action, to he tnlcati to obtain said bcrtefitc Ct~r rne, Any and all transfers and gifts are nor i,tctttZSistenr with my estate planning and in fact reflect my inLCntion and direction with respect to the disposttiun of my estate. Specifically, I dnnot re~sttzct of lintrt tlte. amount of tnotioy ur a-ssets to be tzausferrzd trod tilled, and direct. the fiords availal'-]c for such };ills ar h'ansf~rt; include Principal and incvrrte. 23. GovernmeR/r~! Bens t!,'. To t'.xCtCis4 complete doniitiic~n and control over »ny and all soci;tt sc;e~urity, veteran, county, state Anil federal benefits to which T may now or hereafter ltr cntirlutt_ ~~. ,~}errlt!lcarr.' ll~cisinrr,c_ 'My Agent is authoth~.ed to tiiakc any judl,~rrrent necessary b» ttty care. and custrxlyi to errtplay domestic help, nursing si;rvices, and practical and/or rzgtStEred nurses as my Abs:nt may detertnittc to he in my best interests; tai bivu ftn inl'ctrmed c<~nsi'nt ut an intortncd refusal on my behalf with respec[ [o my physical or tncntal health care an~i uan~fi~rt, tttc:luding specifically, by wsry of illttstratiun artly and not by way of limitation: -5- Q s ti r W r 0 N 0 X X N 0 C Q y W r, F C W G a frT.6'd azezsttki~~l :wo~~ Sa~SZ 0ti0Z-SZ-NdI' N Z 0 nny mu1lc.~tl i<ara, dia~*nnsis, surgical procedure, therapeutic procedure and/or vlht~r N treaUucnl of isry lylze or liattrre; d X Any physical rehaUilitatiou praFrattr; ~ Arty dcrrtel prvc~dtrre; X An_y psychiatric oT psych4lpgiGal care or treatment; N The atlrziissitiq to any hospital, medical center, nursing home, nr menial instiluniun; o The use of arty drugs, medication, thera}~eutic devices, or other medicine:; nr items relined d 4 to my health; ~ The eYecntit.Yu of wilivcrs, medical. authorizations and such other apprUVal d5 rndy U~. ~ rL~cluired to pcrrnit or uunhorize care which T may need; ~ 'fhL; waiver of attydoctor-patient. privilege; I<_nd the pOwCr in gcncral to take and authorise all acts w7ih re.:pecL nu my healllr and well F being, ar.YC1 to expend all amounts in cannc~ctian therewith, to the same extent as I could, if ~ ntzYitally competent to do so; To consent, rel'usc ar withdraw consent na my and all type` 4f mcdic:a] cure, trcalnrenn, surgical procedures:, dia.lmostie procedttres, n~edical'ion, blood and l,la4d prLuluct~, anal the use ref mezhanical ttr ntlSer proccriurt.s tlrfit affect nny boLlily function, ittclkrding, but nut limited ta, arliltCial rcASpiratton, 1lutritiUrt31 support and hydrilivn, kidney dialysis and cardiupulrnonary re5rssc~tation; And to have access to medical reGordS and inaorrttativu, irtcludrtag psychiaUic retards, to ~ the Same eYterYt ilrat Y ~u[1 t:ntille;tl 1t7, including; rite right to disclose the contents to others; d r St And to atrtharize, rsr refuse to authorize, any medication nr procedure intended to relieve ,~ parr, c:von tht~u~lti sucL Lisa rrra~+ l~Ld iL, physic.~Ll dxtma~u, atidiclivn or hr+sterr ttrL: itri+lxrGrit Lti~ (ltiUt 0 not intentionally cause) my death. N 25. fIIP.i,~ ,Re~~:a;~ce ~L[~jRO~ty. I lllt$r]~ f4T lily Agent t4 L~t~ t7$i1tP,(fl 7$ T WQtlld be WJtl1 respect tr7 my rights regarding the trsG artd disclusLirc of my individually idcrrt~ f tattle hc.altli information or other Ynedical retards. This release autlrarity applies to a13y itlloi axat~urt governed liy tbs. Haerlih Insurance T'artahility anti Accountsbiiity Act of :1.996 {aka lEl'PAA), ~2 E.)SC 13204 acid ~S ("FR ld0-I G4 aaid arty subsequent provisions or arnendzttcrtt.s. J. aUtltrariz[; any p,hysiGiazt, 114d11~74arL: prole§~iLynal, tl4ranisl, 1rctLltb plan, hospital, clinic, laboratory, plrarmicy or other covered health care Qravider, any insuring cont.pru1y ~rrd the Medical btiormatiorl Bureau 1•nc. nr nther health care clearinghauSe that has ln-ovit3ed treatment or servrces la mC t1Y rl~t~t I1~5 paid tpl- Ot rS SeGdlal~t, iJ~yA~~=r1Y fl-Qi71 111C fOI- SLI~I] $~JV1CC5, t4 ,s+,ive, rlisclnce anti rele~LSe t~~ niy Agent, without restriction, all of my individually id~nliEiable hoslth rnfarmatir~ii and medical records regarding any past, present or future medical ar mental health condtnivn, LU 1r1C:1LYCIL' etll Q ~ a bl.aT'd a~ezStitJ:ol :woad Sa~ST OZ~Z-SZ-Nkir W / YJ 0 T A inFnrurati~n rcl~t[ing to thi; dia~m~sis attd treatttki:nt of 11IV/A17.15, sexually transmitted d+si;asc:s, ~ tnc;ntal illrtess anti drul; or alcnhol shuse 0 X The authority ~ivi;n my 11.gent shall supersede arty prior agtccmcnl that 1 nay have n~adC ~ X with my he:~it.h taro providers to restrict access t.o or disclosure ctf my individually identifiuttle Health infornltltion_ The authority giuen my l~~eat has no expiration date and shall expire rnlly in the even[ shat i revoke the authority in wt-iting an~i deliver, it to my haalth cue Provi~c:r„ p d LCi FIb.Gp.1g9~+A~ i-z hns~7alt t•clsahilitrxtivr:, o_r n~ ursan~ ha,rie rrrstrrrrtion. To take ' ~ cha.r~i~. of my ~~rr5on in case nf illncss tar disabiiiCy caf any kind; to :ku:tht~rife my admission to tt ~ rt7Cdlcal, nttrsi+tg, re;siclential or similar facility, and to en.tcr'irllo agreements fi)rmy care; ~tnd tr.~ ~ rctnove sites place me itt such institutions ar rlaces as tt7y agc'rtl may dern5 best for ix~y perSOttal d care, corttfort, lacrrci-it and safety after giving eonsiclez••ation to any wisltes i l7avu previously ~ ox.~,ressed on this suhjECi_ F 27. ~•reale a 7'ruSJ. 7'o execute y acid of frost, desigtl;ttine one +~+ rttUrc persons ~ (including +tty Agent) as oa'isirral or s++ccessoz tluste:e(s) and to iransfcr to the lrusl any ctr all C prnpcst-ty owned ley rzYC• as my llgenl5 trta_y decide. The income: and Principal ctf thr Trust may, but need itUl, he distributul trt me ar to tltc guardistt otmy estate, ot• he aPl}lied fiat uiy bcnc;fil, artd upon my death, any rema.ittirkg, princil~:tl ar unCXpirnilul income of the trust iY7ay, but need no[, he distributed to my estai.c. F'iulftennorc, this truss or deed of tntst r7tay bc~ amcrtable or revocable at C any ti+rre by me rn- ttty Agrnts, ar the trust or deed of trust niay be irrC.vocable by me or my A~cnt ~ U The esla6lishmcnt and funding, of a •J-rust, eithet• rtvoca.blc or irrevocable, is not inC4rlsistent ''' ~ with my estate: plaruting, and in fact reflects my intctktiou and directinn with re.~spei?t to tltia a disposition of my estate. r M 2$. Fund tliF Trusr_ •1'o mid at any time, any or all at the ProPeriy Awned by me to '~ u-ust irk existence for my bcn4lit when this power runs treated. The income and the pri+kcilaal c,f• N tlae tl-usl may, but need not, be rlisttibutable to me or to the guar'diart ctf my Cstatt; ttr be applied p Lur my benefit during my lifetime an.c] upon my death any retTlairun~; principal and unexpended ~ p ir+come of the truss, may, but need t1ul, be distrilkuted to my estate. The establishment and N funding of a Trust, either revocable or irrevocable, is ~tiit inconsistent with my estate pla»ninl;, n N ;tnd i+,Y fact reflects my itttc,-rllion and directinn with ztspsct to the disposition ctf my estate. r 29. Create a.Snre1a~11Veerls ,Srtixttleiticritnl_(.:are Trust- To create a Special Needs ~ultpletnental Care Tntst that will benefit tnyscli'frnd/or my spouse and/or my disabled, ha+tdi~`.xpped, or Challorr~;e.ri child(ren) and/or rriy parent(s) andlar u~y,~nandchild(ren) to prest:a•v~ their govenurtCUt, local, state, ur fe:deral t)eneft~ or services, Tltc Special N~~ds Supplemental t~arP 1,ntst shall ~:erve to supplCtrlcnt my, my spouse and/or ul-tilcl(ren)'s and/or my Parenl.(s)' and/tar my grandchild(rcrt)'s yualityof lif4 Anil pcrsctndl needs, without Supplt+riting or inteil4rutg, with their govenunenl, stale rn• fedi:ral or local benefits or ProQranxs car scrviccs_ -7- a1 ez s i i d • ~l :wo.~~ CJg :Sti 0T0~c-SZ-4JHi' bl:~ii'd Z 0 h W 30. (iurrrllpnslzin. T'ursu3nt to Pennsylvania C:ansolidati:rl Statute Tide 20, tiecrion p ScSO4 (c) (1) or the con-cspondiub provisions of any subsequent elate law, if. ir~capacit.y N 0 ]n-ocecdings of my person al:e lrc.~reaf~nr comn~cnced, I hG'reby nac7rzrr3tC, constitute iuzd appt~int X the; herein-dtscrihect Agent as the guardian o!'my estate and my person. !# and its the event t.liat X my Agent predeceases nnc, or does not complete the denies of my true ill~d lawful Agcllt, then Arlo N in such event, I nominate, constitute and appoint the herein-described Successor 1~gen~ as t}tc `t guardi aii{s) of 1,1y estate and my pel"son. 3 I - ,Swbstitutiun. 3VIy Agent strait have full power o!`sul~stitution and revocation, a~ac1 ~ such suUstitutior~ or revocation may relate to, or be l.inlited tu, rrriy a.nc of mare at all of rile ~ toregc~ing arts or powers, ar be limited as to titre rlr iri such ottlcr re:_sgeet as rYry Ageni sliflll deem ~ r~'oE>cr. ~ 32. Gen~rrrl. To du all things which my agc~it s1raI] cleern proper in order to cant' clot ~ any of the foregnirtg ennrneraterl powers, which shat! ~~, conch11ct1 in the broadcs~t passible rn;ertner ilavvcvrr, in no c;vent shall this power cif attorney bC. t.aercisect iii favor ofmy a~;ont, ~ anyot~c. he or she i~as the nl~l.igalion to support, r21'y agent'B esl~ite, my a~er1Y's creditors or the ~ cre:elilors of-his or lrcr e,tatc, unless specifically proviclt:tl in this powcs of'atton~ey. The ~ descriptive headings cr}`this genel-i11 Irrlwer of at#:c+rncy arc insartrd for cclttVG'rlicnce only and shall not l]C deemed to affect the rrreaning nr construrtiari of any of the provision hereof or to limit in ~ auy way the Construrtinn khcre~~f u~ ttrc hrr-xdcst pasSilllc matlttel•_ ~ U 33. Liahilrlr. 11ny person wlro is given instructions by my Age~~t irr ac:.cordance with ~ rho: teams elf the Pawe;r of Akturnt~y shall urmrly witty the instnickicrns. A.ny pe~'son whet witfrout d reasonable vauGC fails la ~:omply wit}r these instructions sl~a!] be srrhject to civil liahil.ity for any r damages resultiii~, from non-cclmpliarrce. Rcasorrable cause under tUis subsection slaall include, ~? but shall not Ise Iimitod !o, a gc~ocl a'aikh report havirtp bocn made by lire third party to the local 0 ~irr-~tGCl:ive scrvires agency mganling abuse, neglcrt, explair~rtian, ar abandnt~:mcnt_ TTnwevc~, I N corrsids,.r qualifying forn~edical assistance heneiits to be pnidenl plannitrg- Arty actions take~rr to 0 hasten acrd facilitate my eligihili#y ~~ar med?4rr! assistance shall ~aot be elrallenged by a third pal-ty, o inrlrrding flee local protective services agency. N N 34-1'Itird P4r1~~ Its:NruiEilr~. Any pcrsc~n Wha At,fs in good faith, reliance 411 my Pawer `r of Attorney Shull 1nClr.t fro liability tls a reSUlt 0E'acting in accordance with kite insiilre#iurrs af'my ~ n~ent„ ' G trse~n~ ~nr I~ ens~~'. TIDE n.gent Mall be eniitf~.d to 35, Cur~erasurrun and !~<rini bl ~ ~ i ~ r1::i50nRble cOn]~CnSatian basefl 011 tl5t actual rcgpOtlSil>iIil'iGS aSSUtilecl Arid pGYfOTY]1Cd_ .My Agent ~ shall. also lie cr7titled tip rermbnrscanent for actual exper~su:; adva.nccd an bchalfrlftllC l'zincipal ~ anti tc- reasonable expenses incurreri in connection with the perforrrr3nce of ray Agcrrt'~: duty . A :N 36_ ltuti raltorr. T hr_rcby ratify aricl cclnfirnt all that. my ageatt ur the substitute or '•~ ~ W sul~slitutes therefore shall lawfully eic~ or cause lcl be done by vittttc Irereoi:: i Q 'c rL -S- 5 :~o.l~ 98:sti 7 e~~z-sa-ter bt~ZS'd ezazs[ia~~l W M W n r ., i 0 ~7. l~'el~llRCC f)Il Qt~1Ci's. °I7zis rowel- ~f attnrxZey shall continue lr1 force ~~u! rrtay be ~ accc~ted and r+:.llcd upon by ;t7~yune to whom it is presi.nted des~-itc m_y 17urported rcvuualinn u3 X iris power, llte ale ol- ll~tiS power, the issuance of ~ court decrco declaring my inc;ompetene~y ur ~' X rlly cieath, until w,-iuCll notice of such event is received by such parson. M 0 =~~. .~f%ecr n~'M~r niswbllily. This puwur «f afton~.ey sht11111r~t be aftCCted by r~iy 0~ llisal~ilily or iilu~apariCy. ~ 3~. Wail~Prs u-td Dtrect(ut~.s. fA PT•i,rciflu( is ret:rtfvt-c•l~tg jtt.Sf1T61' lnlcresl' un the follrn•vrart,~ issz~es, 1'~°S1J01'[Slfj!(1t1.['S, ; crud urrrINt•1aluTt~? by,~ertt c~it I'rtrtcipvl 's behalf- ~ ll specifically znd expressly waive any Rcyuirelncnts iii [:Cfccl now sttd in ti7c r~ilure to F Ilauc m'y assets ki_pt separ-tc .from l~iy Ailumey~irz-pact a.ndl~r 1\~ent'S as:7cis_ ~ 9 1 specifically anal expressly wsiivc ally requirclnc.lyts in effect 1)4w and in the fint'til ~r to ~ ~ ~uluirP my 1litnrncy-iu Fact ar7cllor Agent t+~ keep a Full and acc-n~te record o!'all activities, tQ receilits, anti disbur<;ements lily 1lttomcy-irl•Fact ~-ndlur Agent has lllil(1~ on behalf of mt~ {lht: Principal). ~, C 1 specifical ly and expressly waive tlxe requlrcri-ient in effect Clow ;ili(l in the ftiiurr that ~ „~y AtlornCy-ul I'a,ct a~ydlvz 1lgent iglu file aa7 accnunlin~ of his or her aclian with any offo~ or ~~,i,'riCy in #ht. cciurity or slate, or elsewhere. a 1 Spccifca.l.ly acid rxgreSily direct my Attr~rney-i.zi.-fact and/or At;,t.ut take all ;end a17y Ic.gal atld all Cinancial action that would assisE in my raccivirig local, state, fc~dcral, priv~.te, and public hCnc~lils. 4Q_ ~evctahilily. Should any of the provisions o1~Cliis d~c7lrnei'i.t be far any tcason clulared invalid, stlc,h 111V~11Cl7ty shall 17Gt 31rCGt 1ny oI the Ot~fEr llrt5vis7orlS UI Lh1S doClll1'ILTit 1710 powers, and 3!1 invalid grovisiQns Or Bowers shall 17~ wholly ciisl'c~al-ded iii inlGrpret:iii~ this dt~rumenL. r W Q a -~- :u,o,~~ 90:si eti0z-sz-Mdr bT~~Z'd e'3pzsiiti~~l Dulecl . ~ . , 20105. _I -_. ! / t.()i1ISE Y. ]{APP Witnesses: Nan-~c~ rrR ~ ~_ i•`~ ' nrltlress Fi45 Sir Thomas Coul1, `J~llltl' 12, H~rri~hurs!,1'R 17109 545 Sir T'h~rnas Cottn. Suicc 1 t, .Harrssbw k, f'A_,! 7107 C:UMMQNWL'1lLTH OF PE1vN~YLUAMA ~OLrlv~J'Y n>~ r~A~~l'JIiN SS: On _• `~~ ~~ ~, 2000, l~efarc me ;~ NotaryPuhlic far the Cnl7~rnot~wunlth nt T'cn~„ylva~lia, 1>ertiunally appeared l.C)LliSE I. I~AI't.', lndwri t~ r-'le to bG tllc pcrscru whose• Warne is sni~sc.nbed to the witlurl instrument and acknowl~xlgeli that she exer.-tted tlae same far dic: 13111~3U5C5 t11~rC111 C(?nl~iltlCd. 1.N WITNESS WHEItE~r, T hflVG hcrounw scl my hand acid ufrcial sc:tti_ ~~ rstrary ulrl;c G Mrrnkw~[r,l Or P>:r~nlsrweNu N TARIAIS 1ACQtlFl1Mf A. KELLY, NO[Akr PU811~ tDWER paCiON TWF anursHln COlJNOr ~` ~Atl5.5[ON aPIRES DEC.1?, ]fl0) .. ~~_ azezsllti:ol :wu~d LO=ST 0T0Z-SZ-NHI' bZ~bi'd REQUEST FC)R CHANGE OF BENEF~~IARY IPAYEEI Tl~IIS FORM NQT TO B8 USES WITH SECTIQN 401 ANQ 403(b) CONTRACTS Ilse 4eJf point pen when completing farm Allstate.. Vau r4 ^+ gvuJ h.trxte. AllslotC Litu InGwartCu Conrpotrty P D. Box 80469, l~ncnln, NE RR501114R9 TEL' 1.000.755275 FdX:1-8GGfi2G-100G -. • ^ r • . . O rn.r'sName .O1wner~'~^33N/TIN Con i1Pu6cy* •lnim Owner's Name (it appllGabla) Joiid OwneN'~ 3SNl'i IN Insured or Annultar+t'd Namv In8ur9ci or AnnUit2nt'S SSNrrIN ~ .. C -~ ~- If the Contract Owner is the TRUST then the Benaficiary should also be the TRUST. A, IndlVidual, Corporation or Estate ~ to ~ ~ ~ ,~ ~ ' ~ Name of Primary t3cneficratry kt NSIrN! ut Primary 9enariciary N2 ^ Equally OR ~ Percentage ~~ °b ^ Equally QR ~PerCel'ttage ,~,,,_ NpTE: Please uyu YvMt71.#2 Percantageis ONLY TE: Please use WIiQI~E P •rccnta+lr.s ONLY Str@a_t Address fti Strdn3y4tlr1rns~ CitylState2lp C' ISL<+~trl7_ip r ~cao-~.y-1 ~ 30 SSNlTIN _ [[ Date of Birtlt (ruMtl? IYYYY) SSNtI IN Data of Birth (MMJDDIYYI'V) Relationship _ Relationship ~1 ~~ ~ r B. Trust ar} primary Beneficiary (NOT Undsr East Will) Narna dnd Uatc of -rust Name ul Gurrcnt Trustee Trusi Tax 113 Number $llLOt Adtirwas City Stata Lip C. Trus# as primary Beneficiary (Trust Within Last will) 7o the trustee cif the trust crated pursuant to the Last Will and Testament of as admitted me lr~ prohate provided the trusticc submits a wriilerr rlrairn within aix mcxlths of the death of the person that triggered ptryrttenl under the policy. If no suds claim is made by the trustee, the proceeds shall be pall to __. ~~ -.. Name of Coot$ngcnt t3eneficiary ilt Name pf Gprttb>gent ~r~t+sGary q2 ^ Ec€ually OR ^ f'ercentaga ^/° ^ Equally OR ^ Percentage "/° NOTE: Please IIbA wHQLE Percentages ONt.Y NOTE: Please use WHALE PBrrRtnt~A6 ONLY Street Addre,5 Strar~i Acldratsr; C:AytstelelZiP City/Slatc2ip SSNtTIN Datu crt Birth (MIUr1D1]IWVY) SSNITIN Ua1a nl 1in111(MMrRWY'fYY) F%utlGVrryhiR Relaatinn6hip FIC77DD•1 Psye a at 5 (08108) W a a Z~T'd aZezstlti:ol :wo.a~ LZ~~T 8T0z-LZ-Ntii' OD -~- ~ •^ • a ~ ~~:• Procsecls cannot be paid dirt~tly M a minor bartGRciarx Pi't7CaCdS can, hput-Cver.. bC paid to an schrk custodian for such minor benefttlary de+stgrnatad b~ tha [ywrtt±l undr3r tha rgltivant Stpt6+ 1Jniform Tr.Insfvrs to Minors Act. (see inetructione} I designate Nantr~ Custodian's SSNIfIN (REQUIREd) Strout Addre95 City Stat9 Zip 2s Custodian of Ehe funds payable to -- __ , Minnr'S Name Mrtwr's SSNn"IN under the Uniform Transfers to Minors Act (or Uniform Gifts to Minors Act d SC or VT is Name ut State designated). NOTE: if a custodian is named but no state-specific Uniform Transfers to Minors Act is desit,~natcd, Allstate will use thy t~rgvisions of Illinois UTMA. • ~. - Aril all Beneficiaries, Custodians and/ar Trustees U.S. Citixens? ~ Yes G No. tf No, complete below. Name Name Party to trtp, ,ontrtCt (,.r:. • I rustce' y arty! ID t e onlrzet .e. tvstee CrrunnyU l.rlrcertghip 7untryu ttizenstrip PPrtn~nent R4;;~dvnl Gerd NtanttPr (Attl-ch Copy i o6dib10 ermanent evident Card Number (Atach opy t ossible) Ica urnl,er and ype (Attach C:npy if Pt,sSik>le) vt$u Nytrt4er ttnd'T'ype (Attach (:apy it Possible) BY THIS REQUEST 1 HEREBY CANCEL ALL PRIOR BENEFIGARY (PAYEE) Dt:B1ONAT10NS ANQ SETTLEMENT t•ROVISIdNS CN TH19 Pf3t_ICY. NOTICE TD ALL I~ARTIES COMPLETING TH13 FCyYtM: fk is fraudulent to fill out this form witri information you know to 6e false or knowingly omtt Important fact:iz, Criminal and/or civil pertal#ieS may rersuR frpm t3uch acts. This change is aubjett to the pra~tslans and Ilmftatiofis found in tiro policy. . ~~~ ,SigrtiitutC 4f Pnlicy Owner(~u'rrti..tec SiAnaturn of Jnlnt pwner(tr) (Rerluhed, K aprl~3hle) It ~I ruslunlC:ctrttnratinn, InGIItKtC lil l: Phpn9 Nltntbet' (hnmtsr is Srrpel Jlddrr::SS ~ily {{ vl Zlp hate Sinned (MMII)UIYYYY) Sfpne St: City Slate - r ~ Mail completed, Signed ent:f dated form to: ALLSTATE LIFE tN8URANCE COMPANY Rc) BQX 80469 Lincoln, NE 6807.0469 • r • s • E4+;cordPd at. Monte atrrc•AUlhor~zat<oR Date irntaipUrwr+'l FIC: f I[3t]-1 pane 5 of 5 (Uri/U9) 0 Z.Z"d a7ezSilHeol :wo,~~ Lz:~T ajaZ-ZZ-NHr r .~ 1 1 .. Michael J. Miller (Attorney I.D. No. 62437) Lisa D. Stern (Attorney I.D. No. 56005) DRINKER BIDDLE & REATH LLP One Logan Square, 18`i' and Cherry Streets Philadelphia, PA 19103-6996 Telephone: (215) 988-2700 Facsimile: (215) 988-2757 Email: Michael.Miller@dbr.com Lisa.Stern@dbr.com Attorneys for DefendantlCounter and Cross-Plaintiff, Allstate Life Insurance Company ESTATE OF LOUISE I. KAPP, by and through the Executrix, Helen E. Rank, Plaintiff, v. ALLSTATE LIFE INSURANCE COMPANY, METLIFE INVESTORS USA INSURANCE COMPANY, and KATHLEEN GILBERT, Defendants. 2~f0 .l.iL 22 ~i'~ l f ~ 1 Cs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 10-2371 CIVIL ACTION -EQUITY CONSENT ORDER GRANTING INTERPLEADER RELIEF DefendantlCounter and Cross-Plaintiff Allstate Life Insurance Company ("Allstate Life"), Plaintiff/Counter-Defendant the Estate of Louise I. Kapp (the "Estate"), and Defendant/Cross-Defendant Kathleen Gilbert ("Ms. Gilbert"), by and through their undersigned counsel, having consented to the entry of this Consent Order in connection with Allstate Life's BE01/ 713808. 1 h` counterclaim and cross-claim for interpleader, wherein Allstate Life seeks interpleader relief as to the Estate and Ms. Gilbert,l and the Court being fully advised of the premises thereof, NOW, this Z ~~ of_ J~, 2010, IT IS HEREBY ORDERED THAT: 1. Allstate Life shall pay into the registry of this Court the proceeds payable under annuity contract number GA18382429 (the "Annuity Proceeds"), after deducting the attorneys' fees and costs awarded pursuant to paragraph 4; 2. The Estate and Ms. Gilbert shall assert in this action any claims to the Annuity Proceeds, and are enjoined from commencing any actions or asserting any claims in connection therewith or related to the Annuity Proceeds, other than in this action; 3. Allstate Life is hereby discharged from any and all liability in connection with, arising out of, or relating to the Annuity Proceeds and/or the dispute between the Estate and Ms. Gilbert, and Allstate Life is discharged from further participation in this action; and ' Allstate Life's interpleader claim does not in any way affect the rights or obligations of Defendant Metlife Investors USA Insurance Company. -2- BE01/ 713808.1 '•,' 4. Allstate Life is awarded attorneys' fees and costs in the amount of $2,460.00, which amount may be deducted from the Annuity Proceeds and retained by Allstate Life. Date: Approval for entry: ~~ ~ ~, { ls~ - isa D. Stern Attorney for Defendant/Counter and Cross-Plaintiff Allstate Life Insurance Company G' ¢'" ~ Dennis E. Boyle, qu e Attorney for Pla ounter-Defendant Estate of Louise Kapp - - ---~ Todd F. Truntz, Esquire Attorney for Defendant/Cross-Defendant Kathleen Gilbert 1 ~~ ~. • S'~~,z,~ ~~a~~a BE01/ 713808.1 -3- ESTATE OF LOUISE I. KAPP by and through the Executrix, PENNSYLVANIA HELEN E. RANK, Plaintiff V. ALLSTATE LIFE INSURANCE COMPANY, METLIFE INVESTORS USA INSURANCE COMPANY, AND KATHLEEN GILBERT, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, NO. 10-2371 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED ORDER AND NOW this day of Gb e U ok,r- 2012, upon consideration of the Stipulation filed by the parties in the above-captioned matter, the Stipulation is hereby ACCEPTED, and in accordance therewith, THE FOLLOWING IS HEREBY ORDERED: 1. The Prothonotary of Cumberland County is directed to disburse funds currently ?Ws %%ttrtA Vt\lf, held in the above-matter in the amount of $433,596.95 originating from Allstate Life Insurance k Company, Contract No. GA 18382429 equally between the parties, i.e. $216,798.48 to the Plaintiff and $216,798.47 to the Defendant; 2. MetLife Investors USA is directed to disburse Contract No. 9200643703 in the total amount of $57,527.88 equally between the parties, i.e., $28,763.94 to the Plaintiff and $28,763.94 to the Defendant; [CONTINUED] s 3. All parties shall comply with the terms set forth in the Stipulation and General Release and Settlement Agreement executed by the parties; and 4. The Prothonotary shall mark this matter as settled, satisfied and discontinued with prejudice. BY THE COURT: J. c-? rnCD M cc: ,/>Sennis E. Boyle, Esquire ,Xodd F. Truntz, Esquire -- M C-11 Prothonotary V T- ca tV N N rD C-, --- c? , X tJ 2 :zm < ru .a ru r 03 O W Ill. W O M3 03 0 0 ru L r CARB-OUT DELUXE 0052768 ?J O a O o° M m O T n t J (D N b• v m V z (D N ? N N 3 ? cn a v ;rso p.,,. N z ul piz C t1f p m r '_n c-F I n m A) a C 0 _ Co ° O ;K O N 0 N r D ° N m O x ai (o `n 0 9 N D C 0D V w co 00 m CA RB-OUT oEL UXP D052768 M O -> C> 0o m = Mm O m m J ti o o RJ S r _] H aov a? o z W z ? r W r O r+ 03 - 03 N cn o a ? 3 m cn o ' o r C: o a a- p Y 4 ?. ru Vi x u Wz ru W r N m 0 Dm =n o D? r N r O D :13 CO U) °i m Ell (DD rU m I Z' ro 77 m ro 64 N O 00 w V CD N ao ?? 00 o w CY) ESTATE OF LOUISE I. KAPP by and through the Executrix, PENNSYLVANIA HELEN E. RANK, Plaintiff V. ALLSTATE LIFE INSURANCE COMPANY, METLIFE INVESTORS USA INSURANCE COMPANY, AND KATHLEEN GILBERT, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, NO. 10-2371 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED ORDER AND NOW this day of Cep r t3 a,w 2012, upon consideration of the Stipulation filed by the parties in the above-captioned matter, the Stipulation is hereby ACCEPTED, and in accordance therewith, THE FOLLOWING IS HEREBY ORDERED: 1. The Prothonotary of Cumberland County is directed to disburse funds currently ?Ws 1atcrob )KI C held in the above-matter in the amount of $433,596.95 originating from Allstate Life Insurance 1 Company, Contract No. GA 18382429 equally between the parties, i.e. $216,798.48 to the Plaintiff and $216,798.47 to the Defendant; 2. MetLife Investors USA is directed to disburse Contract No. 9200643703 in the total amount of $57,527.88 equally between the parties, i.e., $28,763.94 to the Plaintiff and $28,763.94 to the Defendant; [CONTINUED] 3. All parties shall comply with the terms set forth in the Stipulation and General Release and Settlement Agreement executed by the parties; and 4. The Prothonotary shall mark this matter as settled, satisfied and discontinued with prejudice. BY THE COURT: z°> M Q cc: Dennis E. Boyle, Esquire C Todd F. Truntz, Esquire -< Prothonotary ry < -i h.9 G? r? r? ra t? r-^ c? 2 RECEIPT FOR TRANSFER -------------------- -------------------- Cumberland County Prothonotary's Office Carlisle, Pa 17013 Case Number 2010-09999 Remarks PER O OF C DATED 02-22-2012 Receipt Date 03/02/2012 Receipt Time 15:25:16 Receipt No. 271904 ---------------------- Distribution Of Adjustment ---------------------------- Transaction Payee This Adj BOND 17003708 - 10-9999 216,798.48- BOND ESTATE OF LOUISE I KAPP & 216,798.48 BOND 17003708 - 10-9999 216,798.47- BOND ALLSTATE LIFE INS CO METLIFE 216,798.47 RECEIPT FOR TRANSFER -------------------- -------------------- Cumberland County Prothonotary's Office Carlisle, Pa 17013 Case Number 2010-09999 Remarks PER O OF C DATED 02-22-2012 Receipt Date 03/02/2012 Receipt Time 15:26:15 Receipt No. 271905 ---------------------- Distribution Of Adjustment ---------------------------- Transaction Payee This Adj INTEREST 17003708 - 10-9999 4,052.89- BOND ESTATE OF LOUISE I KAPP & 4,052.89 INTEREST 17003708 - 10-9999 4,052.87- BOND ALLSTATE LIFE INS CO METLIFE 4,052.87 15283003022012 Cumberland County Prothonotary's Office Page 1 PYS405 Manual Release Check Register 3/02/2012 Escrow Tran Date Distribution Case No Accounting Amount Date Release -------------- 4010 ESTATE ------------------------------ OF LOUISE I KAPP & Check ------------------ Date: 03/02/2012 ------------------ Check No.:9000048 BOND 2010- 09999 TRNS ESC IN 216798.48 3/02/2012 BOND 2010- 09999 TRNS ESC IN 4052.89 3/02/2012 -------------- ------- Payee total: ------------------------ 220851.37 ----------------- ------------------ -------------- 4011 ALLSTAT ------- E LIFE ------------------------ INS CO METLIFE Check ----------------- Date: 03/02/2012 ------------------ Check No.:9000049 BOND 2010- 09999 TRNS ESC IN 216798.47 3/02/2012 BOND 2010- 09999 TRNS ESC IN 4052.87 3/02/2012 -------------- ------- Payee total: ---- - 220851.34 - ------------------ Grand total: ------------------- 441,702.71 ------------------ -1 ?.; T;, PENNSY{ VAMIA MID PENN EMK wvrx.mi0pennparrk.:om DATE 03-21-2012 PAY TOTHE Kathleen Gilbert ORDER OF 292195 60-880/313 $ 220,851.34 MID BANKN Q221,85idols34cts DOLLARS O ICER'S CHECK I AUTHORIZED SIGNATURE. lo- '?u /] o 29 2 19511' 1:03 130880?1: 06P-, P P; Lill