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HomeMy WebLinkAbout10-7032,r KOPE & ASSOCIATES, LLC HILARY P. VESELL, ESQ. Attorney ID 308358 395 Saint Johns Church Road, Suite 101 Camp Hill, PA 17011 (717) 761-7573 Ihvesell@kopelaw.com Attorney for Plaintiff DORIS FOLTZ, : IN THE COURT OF COMMON. PLEAS Plaintiff, : CUMBERLAND COUNTY, PA v, V. : NO. (Civil Terris) 'The ESTATE OF JANET E. HOFFMAN and, - a (DEBORAH PRIEST, AS TRUSTEE and, - EXECUTRIX OF THE ESTATE OF, JANET E. HOFFMAN, DECEASED, : JURY TRIAL DEMANDED Defendant. NOTICE TO DEFEND AND CLAIM RIGH S 'YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, your must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance .personally or by attorney 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 judgment 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 OR CANNOT AFFORD ONE, GO TO O TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 . (717) 249-3166 ??/ d", I 7 , 7 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted di demandas que se presentan mas adelante en las siguientes pac dentro de los' proximos veinte (20) dias despues de la notificac Aviso radicando personalmente o por medio de un abogado una c y radicando en la Corte por escrito sus defensas de, y object presentadas aqui en contra suya. Se la advierte de que si usti Como se describe anteriormente, el caso puede proceder sin uste soma de dinero reclamada en la demanda o cualquier otra solicitado por el demandante puede ser dictado en contra suya pi adicional. Usted puede perder dinero o propiedad u otros des usted. sea defenderse de las inas, debe tomar accion on de esta Demanda y Dmparecencia escrita :iones a, [as demandas ,d falla de tomar accion i y un fallo por cualquier reclamacion o remedio ir la Corte sin mas aviso n-chos; importantes para USTED'DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO O NO PUEDE PAGARLE A NO, LLAME O VAYA A LA SIGUIENTE OFICINA PARA AVERIGUAR DONDE PU DE ENCONTRAR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIA' 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 (717) 249-3166 AMERICANS WITH DISABILITIES ACT OF 1990 The Court of Common Pleas of Cumberland County is required by Americans With Disabilities Act of 1990. For more information abc and reasonable accommodations available to disabled individuals the Court, please contact the Court of Common Pleas of CumberlE arrangements must be made at least 72 hours prior to any hearing Court. You must attend the scheduled conference or hearing. law to comply with the ut accessible facilities having business before nd County. All s of business before the r DOPE & ASSOCIATES, LLC HILARY P. VESELL, ESQ. Attorney ID 308358 395 Saint Johns Church Road, Suite 101 Camp Hill, PA 17011 (717) 761-7573 hvesell@kopelaw.com DORIS FOLTZ, Plaintiff, V. The ESTATE OF JANET E. HOFFMAN and, DEBORAH PRIEST, AS TRUSTEE and, EXECUTRIX OF THE ESTATE OF, JANET E. HOFFMAN, DECEASED, Defendant. Attorney fort Plaintiff IN THE COURT F COMMON PLEAS CUMBERLAND COUNTY, PA NO.(Civil Term) JURY TRIAL DEMANDED COMPLAINT AND NOW comes Plaintiff, Doris Foltz, by and throug Vesell, Esq., and files this Complaint and in support thereof, INTRODUCTION her attorney, Hilary P. e following This is a civil action brought by Plaintiff, Doris Foltz (hereinafter "Plaintiff'), against Defendant, the Estate of Janet E. Hoffman and Deborah Priest, as Trustee and Executrix of the Estate of Janet E. Hoffman, Deceased, (hereinafter "D fendant"), for damages resulting from the actions, breach of oral contract, unjus enrichment, negligent representation, quantum meruit, and promissory estoppel that s id Defendant committed in failing to pay for services rendered by the Plaintiff to the benefit of the Decedent. Page 3 of 13 w PARTIES 1.. Plaintiff, (Doris Foltz, is an adult individual residing at 4701 Li Cumberland County, Pennsylvania. 2:: Janet E. Hoffman (hereafter, Decedent) died on May 11, 2010. Sheffield Ave., Mechanicsburg, Cumberland County, PennsylvaniE 0. Deborah Priest, the niece of the Janet E. Hoffman, was appoi Executrix of the Estate of Janet E. Hoffman on May 26, 2010, by Cumberland County. See File No. 21-10-541, Orphans Court of JURISDICTION AND VENUE Ave., Mechanicsburg, Her address was 901 Trustee and Register of Wills of iberland County. 4. Venue is proper in Cumberland County because the Estate of Janet E. Hoffman was probated in Cumberland County as Decedent was a resident of Cumberland County. FACTS 5. Doris Foltz, sister of the Decedent, was appointed both Power Of Attorney and Durable Healthcare Power of Attorney through a living will on January 30, 997 and served in this capacity through November of 2006. See Exhibit A. 6. Pursuant to this appointment, Ms. Foltz deserves reimburseme t from the 'Estate and Trust of Janet E. Hoffman. 7. Ms. Foltz also agreed to serve as caretaker of Janet E. Hoffma in exchange for reimbursement for this role out of Ms. Hoffman's Estate and/or Tr St. Page 4 of 13 Y ? T 1 8. Ms. Foltz served as caretaker of Ms. Hoffman for almost ten remuneration. without 9. Pursuant to her appointment as Power of Attorney and Durable' Healthcare Power of Attorney, as well as to the Agreement whereby Ms. Foltz would a t as caretaker of Ms. Hoffman, Ms. Foltz tended to Ms. Hoffman, at her own expense w en Ms. Hoffman broke her leg in 1988. 10. Again, a year later, in 1999, Ms. Foltz acted as caretaker of Nis. Hoffman when she broke her pelvis. 11. Ms. Foltz also acted as caretaker of Ms. Hoffman in 2001 wh n she suffered a stroke that included transporting Mls. Hoffman to therapy appointments three days a week for six weeks and remaining with her at said appointments for approximately six hours a day. 12. Although both the Power of Attorney and Durable Healthcare Power. of Attorney were transferred to Ms. Deborah Priest in November of 2000, Ms. Agreement as caretaker continued. 13. In 2007, when Ms.. Hoffman broke her wrist after a slip and fal for Ms. Hoffman, staying with her at her house for four consecutiv+ frequently waking up in the night to care for Ms. Hoffman, as the c Hoffman could not stay alone. duties under the I, Ms. Foltz also cared weeks, which included said that Ms. 14. As caretaker, Ms. Foltz brought Ms. Hoffman's groceries at her own expense, cooked,- cleaned, shopped, banked, wrote checks, washed her clothes, an took Ms. Hoffman to various medical appointments. Page 5 of 13 15. While a patient at Holy Spirit Hospital on May 10, 2010, Ms. Hoffman gave hospital staff Ms. Foltz's name and contact information as her caretaker. 16. Several times Ms. Foltz demanded payment from Ms. Hoffman, to which Ms. Hoffman responded "keep account of your time and when I die,' hand in your time and you'll be well paid." Ms. Hoffman also often said "thanks until you're better paid" 17. Upon Ms. Hoffman's death, Ms. Foltz submitted an invoice fo? her caretaking services to Ms. Deborah Priest, the Trustee and Executrix of Ms. Hoffman's Estate. 1 B. A demand was also made upon the Estate and Trust of Janet E. Hoffman through Ms. Deborah Priest, Trustee and Executrix-of Ms. Hoffman's Estate and Trust, by undersigned counsel See Exhibit B. 19. Ms. Deborah Priest, the Executrix and Trustee of Ms. Hoffmai?'s Estate and Trust, through her counsel, claimed that the Estate consisted solely of a 004 Chrysler Sebring 4 Door Sedan and refused reimbursement for services rendered. -See Exhibit C. 20. It is believed and therefore averred that the great majority of Ms. Hoffman's Estate which is thought to contain a substantial amount of money passedldirectlyat the death of Janet E. Hoffman into a testamentary trust that was setup through her will. See Exhibit D. 21. Due to the fact that the majority of Ms. Hoffman's assets went] into her trust, Ms. Foltz is seeking remuneration against both the will and the trust should he will contain insufficient funds to reimburse her for her services rendered. 22. The actions of the Estate and Trust of Janet E. Hoffman in fail ng to pay Doris Foltz for amounts due and payable for services rendered constitute breach of oral contract, unjust enrichment, negligent representation, quantum meruit, and promissory estoppel. Page 6 of 13 a ' COUNTI BREACH OF ORAL CONTRACT 23. The averments set forth in the preceding paragraphs are incorporated herein by reference as if fully set forth herein. 24. On or about January 30, 1997 as stated, Plaintiff and Decedent entered into an agreement whereas Plaintiff would serve as Power of Attorney, Durable Healthcare Power of Attorney, and caretaker for Decedent. 25. In this capacity, Plaintiff cared for Decedent buying h r groceries at her own expense, cooking, cleaning, shopping, banking, writing checks, washing Decedent's clothes, and taking Decedent to various medical appointments, often staying with Decedent and waking up in the middle of the night to care for her. 26. Decedent 'promised that for these services which Plaintiff performed sometimes both day and night over an almost ten year span Plaintiff would be well-paid and reimbursed out of Decedent's Estate and/or Trust. 27. Decedent breached this agreement by not provid compensation from the Estate and/or Trust and further, by T Estate of Janet E. Hoffman, failing to provide reimbursement Estate or Trust. 28. As a direct and proximate result of Defendant's Brea Plaintiff has been damaged in an amount equal to $100,000 pi rate from the date of the breach. the Plaintiff with any and Executrix of the said services out of the i of the agreement; the s interest at the statutory Page 7 of 13 I I . WHEREFORE, the Plaintiff demands judgment in her fay :state of Janet E. Hoffman and Deborah Priest, as Trustee and Janet E. Hoffman, Deceased, in an amount equal to $100,000, such further relief as the Court deems just and proper. COUNT II UNJUST ENRICHMENT, r against Defendant, the xecutrix of the Estate of )gether with interest and 29. The averments set forth in the preceding paragraphs are inc reference as if fully set forth herein. 30. Plaintiff, by providing caretaking services for Decedent f i conferred a benefit upon the Defendant. 31. Upon information and belief, Plaintiff has conferred a be b Decedent at her own expense. 32. Defendant's acceptance and retention of these benefits u c herein by almost.ten years, has by having cared for r the circumstances is inequitable. 33. Thus, Defendant has been unjustly enriched in the amo ant of $100,000 and the Plaintiff is entitled to a return of this money. WHEREFORE, the Plaintiff demands judgment in her fa% Estate of Janet E. Hoffman and Deborah Priest, as Trustee and Janet E. Hoffman, Deceased, in an amount equal to $100,000, such further relief as the Court deems just and proper. r against Defendant, the _xecutrix of the Estate of )gether with interest and Page 8 of 13 COUNT III NEGLIGENT REPRESENTATION 34. The averments set forth in the preceding paragraphs ar? reference. incorporated herein by 35. Decedent made representations to Plaintiff that she would be well-paid for her services from her Estate and/or Trust in refusing to pay Plaintiff until after Decedent's death, despite numerous requests for payment by Plaintiff. 36. These representations were material to the Plaintiff's decision to care of Decedent at her own expense for almost ten years in that the Plaintiff would not have used her own funds to pay for Decedent had she known of Defendants' intention of not honoring their. agreement, 37. When these representations were made to Plaintiff, Decedent knew or had reason to know that they were not truthful and accurate or in the alte native that Trustee and Executrix of Estate and Trust without adequate provisions already made for payment would refuse to make good on said agreement. 33. These representations were made by Decedent with the intention of inducing Plaintiff into relying and acting upon them in that said Defendant intended to induce Plaintiff to care for her at her own expense without adequate en wring that Plaintiff would be reimbursed. 39.. Plaintiff's damages were directly and proximately misrepresentations regarding her intention to reimburse Plain Trust. aused by Decedent's :hrough her Estate and Page 9of13 40. As a direct and proximate result of Decedent's misrepresentations, the Plaintiff has been damaged in an amount equal to $100,000.00 plus interest at the statutory rate from the date of the breach. WHEREFORE, the Plaintiff demands judgment in her favor against Defendant, the Estate of Janet E. Hoffman and Deborah Priest, as Trustee and Executrix of the Estate of Janet E. Hoffman, Deceased, in an amount equal to $100,000, together with interest and such further relief as the Court deems just and proper. QUANTUM MERUIT 41. The averments set forth in the preceding paragraphs incorporated herein by reference. 42. As more fully described herein, Plaintiffs expectation of payment in exchange for rendering services to Decedent was reasonable. 43. Plaintiff, in rendering services to Decedent, has conferred a substantial benefit upon her. 44. Decedent has been unjustly enriched at the expense of PI intiff. 45. Due to Decedent's unjust enrichment, Plaintiff is entitled to proper compensation for the services rendered to Decedent. 46. Decedent's unjust enrichment at Plaintiffs expense has dar 47. Plaintiff has demanded payment from Decedent's Estate and Executrix of the Trust and. Estate have refused payment. aged Plaintiff. nd/or Trust, but Trustee Page 10 of 13 48. Plaintiff has been damaged by the refusal of Decedent's estate and/or Trust to pay fore the services conferred of Power of Attorney, Durable Healthcare Power of Attorney, and caretaker. WHEREFORE, the Plaintiff demands judgment in her favi Estate of Janet E. Hoffman and Deborah Priest, as Trustee at of Janet E. Hoffman, Deceased, in an amount equal to $100,( and such further relief as the Court deems just and proper. COUNT V PROMISSORY ESTOPPEL 49. The averments set forth in the preceding paragraphs at reference. against Defendant, the Executrix of the Estate 00, together with interest incorporated herein by 50. Decedent represented expressly to Plaintiff that Plaintiff would be reimbursed from the Estate and/or Trust for services to Defendant. 51. Plaintiff reasonably relied on such representations to her detriment with respect to investing both her time and money into the care of the Defendant. 82. Injustice can only be avoided by the payment of said) unpaid services to the Decedent. 53 In and to the extent that Defendant claims there was nol contractual obligation to pay for home healthcare services of Plaintiff, Defendant should claim. WHEREFORE, the Plaintiff demands judgment in her Estate of Janet E. Hoffman and Deborah Priest, as Trustee and be stopped from such a r against Defendant, the of the Estate of Page 11 of 13 Janet E. Hoffman, Deceased, in an amount equal to $100,000, t gether with interest and such further relief as the Court deems just and proper. CONCLUSION For the reasons set forth above, the Plaintiff prays that thps Honorable Court enter I judgment in favor of Plaintiff and against said Defendant, the Estate of Janet E. Hoffman and Deborah Priest, as Trustee and Executrix of the Estate of Janet E. Hoffman, II Deceased, on the foregoing Counts for the full amount of Plaintiff's damages as prayed for within each count plus interest, costs, and attorney's fees, and gr nt such other and further relief as this Court may deem just and equitable. Date: 0,40 Respectfully Submitted, KOPE & ASSOCIATES, LLC Hilary P. Vos?ll, Esq. Page 12 of 13 1 VERIFICATION I, DORIS FOLTZ, the Plaintiff in this matter, have read the foregoing Complaint. I verify that my averments in this Complaint are true and correct and based upon my personal knowledge. I understand that any false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsifications to authorities. Dated: Id°-, DORIS FOLTZ Page 13 of 13 f T- K 6 0 .... Yoiw'are `iereby notified to Plead to the enclosed wifhin Merit/ ' ys of service hereof or a defaui!' judgment rnny be entered'' against you. By- ......... ............................... A-I ORNEY ANN H. _KLIN E ATTn NEY AT LAW 28 SOUTH FbURTH STREET LERANON;.PA 17042 717-274-2184 A CER ^IFIED TRUE AND CORRECT COPY ATTORNEY FOR POWER OF ATTORNEY ilk ic I, JANET ELISABETH HOFFMAN, of 901 Sheffield Street, Mechanic urg, Cumberland County, Pennsylvania, do hereby appoint my sister, DORIS L. OLTZ, of Mechanicsburg, Cumberland County, Pennsylvania ("my agent") with full power of substitution, for me and in my name, to transact all my business and to manage all my property and affairs as I might do if personally present, including, but not limited to, exercising the following powers: DURABLE POWER OF ATTORNEY This Power of Attorney shall not be affected by my subsequient disability or incapacity. All acts done by my agent pursuant to this power during any period of my disability or incapacity shall have the same effect and inure to my benefit and bind me and my successors in interest as if I were competent and not disabled. MANAGEMENT OF ASSETS 1. CASH ACCOUNTS. To collect and receive any money and assets to which I may be entitled; to deposit cash and checks in any of my accounts; to endorse for deposit, transfer or collection, in my name and for my account.any checks payable to my order; and to draw and sign checks for me and in my name, including any accounts opened by my agent in my name at any bank or banks, savings society or elsewhere; and to receive and apply the proceeds of such checks as my agent deems best; and to act as my representative payee for all Social Security, ;Medicare, and other federal and state benefits. 2. STOCKS AND BONDS. To take custody of my stocks, bonds, and rather investments of all kinds, to give orders for the sale, surrender, or exchange of any such investments and to receive the proceeds therefrom; to sign and deliver assignments, stock and bond powers, and other documents required for any such sale, assignment, surrender, or exchange; to give orders for the purchase of stocks, bonds, and other investments of any kind and to settle for same; to give instructions as to the registration thereof and the mailing of dividends and interest; to clip and deposit coupons attached to any coupon bonds, whether now owned by me or hereafter required; to represent me at shareholders' meetings and vote proxies on my behalf; and generally to handle and manage my,investments. 3. PERSONAL PROPERTY. To buy or sell at public or private sale for cash or credit or by any, other means whatsoever; to acquire, dispose of, repair, alter or, manage my tangible personal property or any interests therein. `EXHIBIT f y 1 4. REAL ESTATE. To lease, sell, release, cc mortgage any interest in any real estate I own, including, but n( Sheffield Street, Mechanicsburg, PA, on such terms as my age to purchase or otherwise acquire any interest in and acquire pc property and to accept all deeds for such property; and to man, maintain, restore, build, or develop any real property in which I acquire an interest. Ivey, extinguish, or limited to, 901 deems advisable, and session of real le, repair, improve, ow have or may later 5. SAFE DEPOSIT BOXES. To have access to any and all safe deposit boxes now or hereafter standing in my name; and add tb and to remove all or any part of the contents therenf; and to en ter it tto leases for such safe deposit boxes or surrender same. 6. INSURANCE. To procure, change, carry or cancel insurance of such kind in such amounts against any and all risks affecting p operty or persons against liability, damage or claim of any sort. 7. BENI EFITS.PLANS. To apply for and rece ve any government, insurance and retirement benefits to which I may be entitled an to exercise any right" to elect benefits or payment options. 8. TAXES. To prepare, execute and file in behalf any Internal Revenue Service forms numbered 1 thrOL return, report, protest, application for correction of assessed property or claim for refund in any connection with any tax irr and to obtain an extension of time for any of the foregoing or restrictions on the assessment of deficiency on any tax. 9. BOIRROW. To borrow money for my and conditions my agent deems advisable. 10. EMPLOYMENT OF OTHERS. To empl counsel, accountants, custodians, physicians, dentists, nurs( persons to render services for or to me or my estate and to p reasonable fees and compensation of such persons for their' 11. DISCLAIMER OF INTERESTS. To re behalf any interest in property. 12. CLAIMS. To institute, prosecute, defend, dispose of and to appear for me in any proceedings at law or name and on my 10,000, including uation of real or other sed by any government execute waivers of on whatever terms lawyers,' investment therapists, and other the usual;and ;rvices. or disclaim on my compromise or otherwise i equity. 2 I e b 13. MEDICAL PROCEDURES. To arrange for withhold medical, therapeutical and surgical procedures for me, administration of drugs. 14. -ADMISSION INTO -FACILITIES. To apply fi medical, nursing, residential, rehabilitation, convalescent or othi my behalf, and to sign any consent or admission forms required are consistent with this power, and to enter into agreements for facilities or elsewhere during my lifetime or for lesser periods of designate, including the retention of nurses for my care. consent to or to uding the my admission into similar facilities on such facilities which care by such ne as my agent may 15. GENERAL AUTHORITY. To do all other things which my agent shall deem necessary and proper in order to carry out the foregoing powers which shall be construed as broadly as possible, including all powers set forth in 20 Pa.C.S.A. § 5602, as amended. 16. RELIANCE ON POWER. This power may a accepted and relied upon by anyone to whom it is presented until such person either receives written notice of revocation by me or a guardian or similar fiduciary of my esta e or has actual knowledge of my death. 17. HOLD HARMLESS. All actions of my agen shall bind me and my heirs, distributees, legal representatives, successors and assig s, and for the purpose of inducing anyone to act in accordance with the powers I have ranted herein, I hereby represent, warrant and agree that, if this power of attorney is terminated or amended for any reason, I and my heirs, distributees, legal representatives, successors and assigns will hold such party or parties harmless from any loss suffered or liability incurred by such party or parties while acting in accordance with this power prior to that party's receipt of written notice of any such termination or amendment. 18. PENNSYLVANIA LAW GOVERNS. Questi ns pertaining to the validity, construction and powers created under this instrument hall be determined in accordance with the laws of the Commonwealth of Pennsylvani IN WITNESS WHEREOF, I have hereunto set my hand and seal this 30th day of January, 1997. SEALED AND DELIVERED IN THE PRESENCE F: WITNESS: ??-??-- (SEAL) A NET ELISABETH H FFMAN 3 Y , The following is a specimen signature of the of Attorney is given: DORIS L.+fOLTZ F COMMONWEALTH OF PENNSYLVANIA ) COUNTY.OF LEBANON ) SS: i to whom this Power SEAL) On this, the 30th day of January, 1997, before me, the undersigned officer, personally appeared JANET ELISABETH HOFFMAN, known to me (or satisfactorily proven) to be the person whose name `'s subscribed to the within instrument, and acknowledged that she executed the same fort e purpose therein contained. IN WITNESS WHEREOF, I have hereunto set my hand and official seal. NOT- AkY PUBLIC My Commission Expire 4 i 'in . COMMONWEALTH OF PENNSYLVANIA ) COUNTY OF LEBANON ) SS: Recorded this day of , 19- in the Recorder of Deeds Office of said County in Book, Vol _, Page , given under my hand and seal of the said office of the date above written. RECORDER 5 To .... --..... ............ ......................... You are hereby r ctified to plead to the enclosed within twenty (20) days of service hereof cr a default judgment _rray,be entered against you. A F"TO P N EY ANN,H. KLINE ATTORNEY AT LAW 28 SOUTH FOURTHSTREET .,t R-k N, PA 17042 717-274-2184 A CERTIFIED TRUE AND CORREC-r COPY DURABLE HEALTHCARE POWER OF ATTORNEY AND HEALTHCARE TREATMENT INSTRUCTIONS (LIVING WILL) .............................................................. ATTORNEY FOR PART I - DURABLE HEALTHCARE POWER OF ATTORNEY I; JANET ELISABETH HOFFMAN, of 901 Sheffield Street, Mechanicsburg, Cumberland County, Pennsylvania, appoint the person named below to be my agent to make health and personal care decisions for me when and only when I lack sufficient capacity to make or communicate a choice regarding a health or personal care decision as verified by my attending physician. My agent may not delegate, the authority to make decisions. MY AGENT HAS ALL OF THE FOLLOWING POWERS (SUBJECT TO THE HEALTHCARE TREATMENT INSTRUCTIONS THAT FOLLOW IN PART II): 1. To authorize, withhold, or withdraw medical care and surgical procedures; 2. To authorize, withhold, or withdraw nutrition (food) or hydration (water) medically supplied by tube through my nose, stomach, intestines, or veins; 3. To authorize my admission to or discharge from a medical; nursing, residential, or similar facility, and to make agreements for my care, including hospice care; 4. To have full access to my medical and hospital records and all information regarding my physical or mental health; 5. 'To hire and fire medical, social service, and other support personnel responsible for my care; 6. To take any legal action necessary to do what I have directed. APPOINTMENT OF AGENT I appoint-the following agQent: Agent: Doris L. oltz, sister Address: Mechanicsburg, PA Telephone No. '717--741- z,//? 3 (home) (work) 7477 X1 - 4 113 t PART 11-14EALTHCARE TREATMENT INSTRU (LIVING WILL) ONS The following healthcare treatment instructions exercise my right to make decisions concerning my health care. These instructions a ' intended to provide clear and convincing evidence of my wishes to be followed when I lack the capacity to make or communicate my treatment decisions: TERN-U kIAL ILLNESS OR PERMANENT UNCONSCIOUSNESS If l suffer from a terminal condition or a state of permanent nconsciousness such as a permanent coma or persistent vegetative state, a d there is no realistic hope of significant recovery, all of the following apply: 1. I direct that 6 be given health care treatment to r lieve pain or provide comfort even if such treatment my shorten my I fe, suppress my appetite or my breathing, or be habit forming; 2. 1 direct that all life prolonging procedures be withheld or withdrawn; 3.. I specifically do not want any of the following a life prolonging procedures„ heart-lung resuscitation (CPR), mechanical ventilator (breathing machine), dialysis (kidney machine), surgery, chemo- therapy, radiation treatment, antibiotics. Please indicate whether you want nutrition (food) or hydration & supplied by a tube into your nose, stomach, intestine, or veins if 1 terminal condition or a state of permanent unconsciousness and hope of significant recovery. TUBE FEEDINGS I want tube feedings to be given NO TUBE FEEDINGS ) medically suffer from a e is no realistic L? oT- I do not want tube feedings to be given. OTHER EXTREME CONDITIONS If I should suffer from irreversible brain. damage or brain d of significant recovery, 1 would consider such a condition i health care providers and agent to treat any intervening lift as they would a terminal condition or state of permanent u indicated above. Initials . ?--- I agree Initials I disagree AGENT'S USE OF INSTRUCTIONS U? LEGAL PROTECTION My agent must follow these instru OR These instructions are only guid have final say, and may override instructions. with no realistic hope ble and I want my atening conditions just ;iousness as i have . My agent shall of my On behalf of myself, my executors and heirs, I hold my agents a?d my health care providers harmless, and release and indemnify them against an claim for recognizing my agent's authority or for following any treatment instructions in good faith. SIGNATURE Having carefully read this document, I have signed it this 30th revoking all previous health care powers of attorney and medi ET ELISABETH H Witnes. v ii " Witness: f' y of January, 1997, treatment instructions. COMMONWEALTH OF PENNSYLVANIA SS.. COUNTY OF LEBANON On this 30th day of January, 1997, before me personally appeared the aforesaid declarant, to me known to be the person described in and who xecuted the foregoing instrument and acknowledged that she executed the same as her free act and deed. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal in the County of Lebainon, Corm c onwaalih of Pennsylvania, the ay and year first above written. NOTARY PUBLIC My Commission Exp ?? ? Q Shane B. Kope, Esq. ¦ Jacob M. Jividen, Esq. Julie A. Wehnert, Esq. ¦ Hilary R Vesell, Esq. y a + K 0 P E ASSOCIATES LAW OFFIC-ES L'-,C' September 17; 2010 VIA CERTIFIED AND FIRST CLASS MAIL Deborah Priest 236 North Boiling Spring Avenue Yeagertown, PA 17099 In re: Foltz v. the Estate of Janet E. Hoffman Dear Ms. Priest: This Law Firm represents Doris L. Foltz in connection with her claims ag Hoffman for breach of contract, quantum meruit, unjust enrichment, pro misrepresentation, and related claims arising out of the Estate of Janet E. Doris L. Foltz for services rendered in the amount of $100,000. Doris L. Foltz and Janet E. Hoffman, sisters, entered into a verbal agreeme "Agreement") in 1998 by which Ms. Foltz agreed to act as Ms. Hoffman's reimbursement for this role out of Ms. Hoffman's estate. Pursuant to this acted as caretaker of Ms. Hoffman, at her own expense, when Ms. Hoffina Again, a year later, Ms. Foltz acted as caretaker of Ms. Hoffman when she Foltz also acted as the caretaker for Ms. Hoffman in 2001 when she'suffere included transporting Ms. Hoffinem to therapy appointments three days a remaining with her at said appointments for approximately five hours a d Foltz also bought Ms. Hoffman's groceries at her own expense, as well as banked, wrote Ms. Hoffman's checks, washed her clothes, and took Ms. H appointments. In 2007, when Ms. Hoffman'broke her wrist after, a slip anc with Ms. Hoffman at her house for three weeks, frequently waking up in t take care of Ms. Hoffman. It was also during this time, specifically from 11 2006, that Ms. Foltz served as Power of Attorney and Durable Healthcare Hoffman. See Exhibit A. Although this Power of Attorney and Durable H( Attorney was transferred to Ms. Deborah Priest in November of 2006, Ms. the Agreement as caretaker continued. Furthermore, while a patient at the Hoffman gave hospital staff Ms. Foltz's name and contact information as r for Ms. Foltz's care, Ms. Hoffman agreed to reimburse Ms. Foltz for. servicE her death to be paid out of her estate. Specifically, for twelve years Ms. H the Estate of Janet E. pry estoppel, negligent man for failure to pay (hereinafter the iretaker in exchange for agreement, Ms. Foltz i broke her leg in 1998. )roke her pelvis. Ms. I a stroke, which veek for six weeks and y. During this time, Ms., Joked, cleaned, shopped, ffman to various medical fall, Ms. Foltz stayed .e middle of the night to 97 through November of ower of Attorney for Ms. ilthcare Power of -ioffman's duties under Holy Spirit Hospital, Ms. ?r caretaber. In exchange 3 rendered at the time of ffman: told Ms. Foltz, to S EXHIBIT Main: 395 St. Johns Church Road ¦ Suite 1 b York: 11 Eas L Market Street ¦ S 'y P 71'1.761.7573 ¦ F 717 -9 + r s ? "keep account of your time and when I die, hand your bill in and you'll be well paid," adding "thanks until you're better paid.Finally,. the agreement entailed that M . Foltz was supposed to receive four pieces of jewelry. Upon Ms. Hoffman's death, Ms. "Foltz submitted an invoice for her caretakig services, along with a request for the four pieces of jewelry, to Ms. Deborah Priest, the Executri of Ms. Hoffman's estate. Ms. Priest refused to reimburse Ms. Foltz for her caretaking services per e Agreement; Ms. Priest also failed to return the four pieces of jewelry, telling Ms. Foltz, "If I find em, I'll give them to you. The actions of the Estate of Janet E. Hoffman in failing to pay Doris L. Fol -for amounts due and payable for services rendered-constitute a breach of the agreement between the Estate of Janet E. Hoffman and Doris L. Foltz. These actions also constitute quantum meru't, unjust enrichment, promissory estoppel, and negligent misrepresentation. In light of the above, demand is hereby made for immediate payment of 100,000 to Doris L. Foltz. Please be advised that unless such payment is received by this office on or before October 15, 2010, we will commence litigation agavnst the Estate of Janet E. Hoffman to seep multiple damages, including interest, court costs, and attorney fees if applicable. Please contact me directly with any questions. Regards, KOPE & ASSOCIATES, LLC Hilary P. Vesell, Esq. Enclosures c: Doris Foltz (w/o encl.) file (w/o encl.) ROBERT L. WELDON EUGENE E. PEPINSKY, JR. JOHN H. ENOS Z GARY E. FRENCH BRADFORD DORRANCE JEFFREY S. STOKES ROBERT R. CHURCH STEPHEN L. GROSE R. SCOTT SHEARER ELYSE E. ROGERS CRAIG A. LONGYEAR` JOHN A. FEICHTEL STEPHANIE KLEINFELTER DONALD M. LEWIS Z TODD F. TRUNT2 LAUREN S. WELDON 4 ( 1 y KEEiFER WOOD ALLEN &c RAHAL ATTORNEYS AT LAW 635 NORTH 12T" STREET, SUITE 400 LEMOYNE, PA 17043 PHONE 717-612-5800 FAX 717-612-5805 EIN No. 23-0716135 www.keeferwood.com September 20, 2010 Hilary P. Veseil, Esquire Kope & Associates 395 St. Johns Church Road, Suite 102 Camp Hill, PA 17011 Re: Estate of Janet E. Hoffman, Deceased Dear Ms. Vesell: LLP ESTABLISHED IN 1878 OF COUNSEL: N. DAVID RAHAL SAMUEL C. HARRY CHARLES W. RUBENDALL IL HARRISBURG OFFICE: 210 WALNUT STREET HARRISBURG, PA 17101 PHONE 717-255-8000 717-901-7786 r@keeferwood.com Fax' 717-612-5805 This firm is counsel to Deborah C. Priest, the Executrix of the Estate of Janet E. Hoffman. This letter is written to inform you that Ms. Hoffman's,probate estate consists solely of a 2004: Chrysler Sebring 4 Door Sedan. Moreover, the Executrix disputes the validity of 'your client's claim (i.e., she does not believe there was any such agreement between Ms. Hoffman and your client and disputes the facts asset forth in your letter of September' 17). Sincerely, KEEFER WOOD SK/waw cc: Deborah C. Priest, Executrix By Step ALLEN & RAHAL, LLP r Kleilfelte EXHIBIT 7 a?Doris L. Foltz it 4701 Linden Ave. S Mecharlcsbig, PAS 17055 LAST WILL AND TESTAMENT OF JANET E. HOFFMAN 1. JANET E. HOFFMAN. a resident of the County of CUMBE Pennsylvania, do make and declare this to be my Will, and l revoke all i RLAND, Commonwealth of ny prior Wills and Codicils. FIRST: Declaration Concerning Family. 1 declare that I am id owed and that I have no children now living, and that I have no other children living or de eased. The terms "child", "children" and "issue" shall include adopted children. I further d' clare it is my intention to dispose of all property I am entitled to dispose of by Willa SECOND: Nomination and Appointment of Executor. I hereby nominate and appoint DEBORA PRIEST to be my Executor hereunder, to serve without bond. In the event my nominee fails to become or at any time ceases to be the duly appointed and cting Executor hereunder, 1 nominate DAVID CHERRY as Executor, to serve without bond. The ter "Executor as used herein shall' apply regardless of gender. THIRD: Last Illness and Funeral Expenses; Powers of Executor.. l'direct nny Executor to pay my last illness and funeral expenses. I direct my Executor to take all actions legally permissible to have the probate of my will done as simply and as free of court supervision as possible under the laws of the state having jurisdiction over this will, including filing a petition in the appropriate' court' for the independent administration of my esti to I hereby grant to my E=xecutor all of the necessary powers i under this Will and the power to do all other, acts which in his judg appropriate'for'the proper distribution of my estate and the pour ove The foregoing powers, authority and discretion granted to my Exec addition to the powers, authority and discretion vested in him by of his office, and may be exercised as often as is deemed neces? application to or approval by any'court in any jurisdiction. With re exemptions, 1 have provided for such powers for the Trustee,of the l tax law is interpreted to not allow the Trustee to exercise such po directed to follow the Trustee's directions with respect to such electic FOURTH: Debts, Taxes, and Administration Expenses. I have r all my debts, expenses; of administration of property wherever situa or otherwise and estate, inheritance, transfer and succession taxes, i of my death, under THE JANET E.' HOFFMAN TRUST, (hereinafter "T the execution of this Will. If the Trust assets should be insufficient fc pour over, my Executor, may elect to probate this Will andfor demant the Trustee of the Trust an amount necessary to pay all or part of pecuniary legacies, and family, allowances by court order. 9-2 o discharge my directions. rnent may be necessary or r of my estate to the Trust. :utor are intended to be in ieration of law by virtue of ary or advisable, without spect to tax elections and rust. In the event that any Ners, then the Executor is ns and exemptions. rovided for the payment of ed passing under this will hat become due by reason -ust") on the samedate as r these purposes, after the I in a writing addressed to these items, plus claims, EXHIBIT D 1 1 4 • v FIFTH: Disposition of Residue of Estate. (1) All my personal and household effect were tri result of the Assignment of Personal Property to Trust signed in cc there are any questions regarding the ownership or disposition of assets not listed therein, it is my desire that all my assets pour into ti (2) Accordingly, I give, devise, and bequeath i remainder of my property of every kind and description (including lal wherever situated and whether acquired before or after the executioi under the Trust executed by me on the same date of the executic Executor to transfer over to the Trust all of my right, title and interest that I might have an interest in. The property is to be transferred to t and encumbrances, if any. The Trustee shall add the property bequ will to the corpus of the Trust and shall hold, administer and ( accordance with the provisions of the Trust, including any amendmei death. nsferred to the Trust as a nnection with the Trust. If these assets or any other ie Trust. the rest, residue, and sed legacies and devises), of this Will, to the Trustee i of this Will. 1 direct my n all property that I own or e Trust subject to ali liens athed' and devised by this stribute said property in is thereto made before my (3) If for any reason the said Trust shall not be in xistence at the time of my death or if for any reason a court of competent jurisdiction shall declare the foregoing testamentary disposition to the Trustee under said Trust as it exists at the time of 'my death to be invalid, then I give all of my estate including the residue and remainder thereof to that person who would have been the Trustee under the Trust, as Trustee an to their substitutes and successors under the Trust, described herein above, to be held managed, invested, and distributed by the Trustee upon the terms and conditions pertaining to the period beginning with the date of my death as are constituted in the Trust as at present constituted giving effect to amendments, if any, hereafter made and for that purpose I do hereby incorporate such Trust by reference in full in this my Will. SIXTH': Partial Invaliditw. Should any part, clause, provision, car condition of this Will be held to be void, invalid, or inoperative, then l direct that such invalshall not affect any other provision hereof, which shall be. effective as though such invalid proVisi ns had not been made. SEVENTH: Omitted Heirs; Will, Contests. Except as otherwise specified in this Will, I have intentionally and with full knowledge omitted to provide for my heirs at t ,e time of my death. If any beneficiary under this Will or heir at law of mine or person claiming through any of them shall contest or otherwise challenge the validity of this Will or attack any of its provisions or the trust described in Paragraph FOURTH herein, directly or indirectly, any sha a or interest in my estate given to such person under this Will is hereby revoked, and such hare or interest shall. be distributed in the same manner provided herein as if such person had predeceased` me without issue. 9-3 S n * a IN WITNESS WHEREOF, 1, JANET E. FFMAN, sign, al, publish and declare this instrument as my Last Will and Testament this day of , AiZI ANET E. HOFFMApY, The foregoing instrument consisting of four (4) typewritten pages was signed, sealed, published and declared by JANET E. HOFFMAN, the above-named Testator, to be his Last Will and Testament in our presence, all being present at the same time, and we, at his request and in his presence and in the presence of each other, have subscribed our names as witnesses on the date above written. Witness ?' ? Witness Signature Signature Print narnec X.,J e t?rrS?`e- Print name i Address ZO Address. All /7 Irl END OF WILL 9-4 A It % COMMONWEALTH OF PENNSYLVANIA, COUNTY OF CUMBE COMMONWEALTH OF 1, JANET E. HOFFMAN and 1C, a?-1Sf,?nd WA'tZ&AI M 9:44'/ihe Testator and the witnesses respectively, whose names are signed, to the attached or foregoif g instrument, being first duly sworn, do hereby declare to the undersigned authority that the Testator, Janet E. Hoffman, signed and executed said instrument as his Last Will and Testament in the presence and hearing of the witnesses, and that he had signed willingly, and that h executed it as his free and voluntary act and deed for the purposes therein expressed, and that each of the witnesses at the request of the Testator, in the presence and hearing of the Testator and each other, signed the will as witness, and that to the best of his or her knowledge the Testa or was at the time at least eighteen years of age, of sound mind and under no constraint, duress, fraud or undue influence. Subscribed, sworn to and acknowledged before me by the said JAN subscri d and sworn to before me by the above-named witr -- ue N otal 11 "v My commission expir on _ COMMONWEALTH OF PENNSYLVANIA Notarial seal Ejefferyission W. Leighton, Notary je24, c ple T,,vp•, Delaware coExpires Decemtr2t)06 Jeffery K Leighton; Not; Marple Twp., Delaware "ommission Expires Dece ND, ss. E. HOFFMAN, Testator, and ;es, this day of Public eF24, 200 9-5 / ft=- estator t f r 4 KOPE & ASSOCIATES, LLC HILARY P. VESELL, ESQ. Attorney ID 308358 395 Saint Johns Church Road, Suite 101 Camp Hill, PA 17011 (717) 761-7573 hvesell@kopelaw.com KOPE & ASSOCITES, LLC DORIS FOLTZ, Plaintiff, V. The ESTATE OF JANET E. HOFFMAN and, DEBORAH PRIEST, AS TRUSTEE and, EXECUTRIX OF THE ESTATE OF, JANET E. HOFFMAN, DECEASED, Defendant. Attorney for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 10-7032 (Civil Term) JURY TRIAL DEMANDED rtr i PRAECIPE TO REINSTATE COMPLAINT ' TO THE PROTHONOTARY: r" J c, u c =a C-) D Kindly reinstate the Complaint in the above-captioned Civil Action. Respectfully Submitted, Date: y ?4.'0# 6u% iMtj M eO (Vj? 3 / 7G0 4 By. Hilary P. Ves ESQ. F `Lt-U i t KOPE & ASSOCIATES, LLC HILARY P. VESELL, ESQ. Attorney ID 308358 395 Saint Johns Church Road, Suite 101 Camp Hill, PA 17011 (717) 761-7573 hvesell@kopelaw.com X911 MAR -2 AM E0: 5t., ' it PENNSYLYAH' Attorney for Plaintiff DORIS FOLTZ, : IN THE COURT OF COMMON PLEAS Plaintiff, : CUMBERLAND COUNTY, PA V. : NO. 10-7032 (Civil Term) The ESTATE OF JANET E. HOFFMAN and, DEBORAH PRIEST, AS TRUSTEE and, EXECUTRIX OF THE ESTATE OF, JANET E. HOFFMAN, DECEASED, : JURY TRIAL DEMANDED Defendant. PRAECIPE TO REINSTATE COMPLAINT TO THE PROTHONOTARY: Kindly reinstate the Complaint in the above-captioned Civil Action. Respectfully Submitted, Date: KOPE & ASSOCITES, LLC By: h?w 0(,Up Hilary P. Ve I, ESQ. 1&1* sI V SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff 1r of Cu+rf y'rf ? FILED-OFFICE r OF THE PROTHONOTARY Jody S Smith Chief Deputy Richard W Stewart Solicitor 2011 MAR 24 PH 2: 15 CUMBERLAND COUNTY ?k ??? Doris Foltz vs. Deborah Priest Case Number 2010-7032 SHERIFF'S RETURN OF SERVICE 03/02/2011 Ronny R. Anderson, Sheriff who being duly sworn according to law states that he made a diligent search and inquiry for the within named defendant, to wit: Deborah Priest, but was unable to locate her in his bailiwick. He therefore deputized the Sheriff of Mifflin County, Pennsylvania to serve the within Complaint and Notice according to law. 03/14/2011 04:13 PM - Mifflin County Return: And now March 14, 2011 at 1613 hours I, Chris Shade, Sheriff of Mifflin County, Pennsylvania, do hereby certify and return that I served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Deborah Priest by making known unto herself personally, at The Mifflin County Sheriffs Office, 20 N. Wayne Street, Lewistown, Pennsylvania 17044 its contents and at the same time handing to her personally the said true and correct copy of the same. SHERIFF COST: $37.44 March 22, 2011 SO ANSWERS, RON R ANDERSON, SHERIFF !.c Gounigu,te Snenff. TE;icoso't. in;. Christopher S. Shade , Sheriff Laurie j. Kozak , Chief Deputy Charles L."Bump" Angney , Deputy James R. "Joe" Bell , Deputy Terri D. Rupert , Deputy Ronald E. Fisher , Deputy Plaintiff: Doris Foltz SHERIFF'S OFFICE MIFFLIN COUNTY 20 North Wayne Street Lewistown, PA 17044 (717) 242-1105 " (717) 242-1808 Fax: (717) 248-2907 David W. Molek , Solicitor (717) 248-9656 Court Number: 2010-7032 County: Cumberland County Defendant: The Estate of Janet E. Hoffman and, Deborah Priest, as Trustee and, Executrix of the Type of Writ or Complaint: ? Writ Estate of, Janet E. Hoffman, Deceased Notice and Complaint ? Complaint Name: Deborah Priest Address: 236 N. Boiling Springs Avenue Serve Yeagertown, PA 17099 At Name: Address: Indicate Unusual Service: ? Comm. of Pa. ? Deputization ? Other Now 20 , I, SHERIFF OF MIFFLIN COUNTY, PA. do hereby deputize the Sheriff of County to execute this Writ and make return thereof according to law. This deputization is made at the request and risk of plaintiff. X Sheriff ofMiinin Co. Special Instructions or other information that will assist in expediting service: Attorney or other Organization requesting service: Telephone No: Date Filed: Hilary Vesell (717) 761-7573 3/1/2011 1 ackn ge rec? ipt of the or Complaint as indicated above: Date Received: Exp. Date: //? / 3/3/2011 3/31/2011 X ,Z;fzZy??Ld? e.? I hereby CERTIFY and RETURN that I ?? have personally served. ? have legal evidence of service as shown in "Remarks", ? have executed as shown in "Remarks", the Writ or Complaint described on the individual, company, corporation, etc. at the address shown above or on the individual, company, corporation, etc., at the address inserted below, handing a TRUE and ATTESTED copy thereof. ? I hereby certify and return a NOT FOUND because I am unable to locate the individual, company, corporation, etc., name above. (See Remarks below.) Name and Title of individual served: ? A person of suitable age and discretion Deborah Priest then residing at the defendent's usual place of abode. Address where served (complete only if different than shown above) Date of Service: Time: 20 North Wayne Street Lewistown, PA 17044 (Mifflin County Sheriff's Office) 3/14/2011 4:13 PM Attempts Date Miles Dep.lnt. Date Miles Dep.lnt. Date Miles Dep.lnt. 2 3/4/2011 8 UK 3114/2011 2 REF Advance Costs Service Costs Mileage Postage Surcharge Notary Total Refund $95.00 $18.00 $15.00 $6.50 $0.00 $5.00 $44.50 $50,50 w? ?A? MQ- wcc uu icy awe/ ?a.au auueu to pustage tees Tor resuming the prior service request. S r o and subscribwtbefore me this / i d,. ,r! ?_ x r????? Notary Public NOTARIAL SEA PATRICIAA. WILSON, Notary Public Lewistown Boro, Mifflin County MY Commission Expires March 31, 2011 Notarial Seal So Answers: Deputy Sheriff Ronald E. Fisher 3/15/2011 X ??.?.,?-- -1 /S- // Sheriff C ristopher S de 3/15/2011 X ?` a DORIS FOLTZ, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVAN IA V. c? a ca -n THE ESTATE OF JANET E. NO. 10-7032 - CIVIL TERM = =„n HOFFMAN and DEBORAH =rn s rnr- PRIEST, as Trustee and Executrix r- N =Q of The Estate of JANET E. -< -4 ' HOFFMAN, Deceased, s? nrE Defendants 7ycs JURY TRIAL DEMANDED ? ?? m a cn -t DEFENDANTS' PRELIMINARY OBJECTIONS AND NOW, come Defendants, identified by Plaintiffs as "The Estate of Janet E. Hoffman and Deborah Priest, as Trustee and Executrix of the Estate of Janet E. Hoffman, Deceased," and file the following Preliminary Objections to Plaintiff's Complaint: I. EXCLUSIVE JURISDICTION OF THE ORPHANS' COURT DIVISION 1. In this action, Plaintiff asserts causes of action against the Estate of Janet E. Hoffman and a not fully identified "Trust," alleging that Deborah Priest is both "Executrix and Trustee." 2. Plaintiff demands compensation relating to services allegedly rendered to or on behalf of Decedent for several years prior to her death. 3. Pursuant to 20 Pa. C.S.A. §§711(1), (2) and (3), jurisdiction over administration and distribution of real and personal property of a decedent's estate, a testamentary trust and an inter vivos trust, "shall be exercised through [the court's] orphans' court division." 4. The civil law division of this Court lacks jurisdiction over Plaintiff's claims. 5. Further, Plaintiff is not entitled to a jury trial in the orphans' court division and her jury trial demand in the Complaint is contrary to law. 6. Plaintiff's Complaint should be dismissed for lack of jurisdiction pursuant to Pa. R.C.P. 1028(a)(1). If jurisdiction is retained or if the matter is transferred to the Orphans' Court rather than being dismissed, Plaintiffs demand for jury trial should nevertheless be stricken pursuant to Pa. R.C.P. 1028(a)(2) as it fails to conform with law. WHEREFORE, Defendants demand that Plaintiff s Complaint be dismissed. In the event that jurisdiction is retained or the matter is transferred to the Orphans' Court rather than dismissed, then Defendants request that Plaintiffs demand for a jury trial be stricken, and that Defendants be awarded appropriate costs and legal fees and such further relief as may be appropriate. 11. FAILURE TO EXERCISE A STATUTORY REMEDY 7. The averments of paragraphs 1 through 6 are hereby incorporated by reference. 8. Pursuant to the procedures set forth at 20 Pa. C.S.A. §§3381, et seq., and in particular §3386, the statutory procedure Plaintiff must follow to assert her claims is to present the claims in the Orphans' Court at the call for audit or confirmation. 9. Plaintiff may not pursue a Complaint on the civil side of the Court in derogation of the remedy provided by statute. 10. Plaintiff s Complaint should be dismissed pursuant to Pa. R.C.P. 1028(a)(7) for failing to exercise a statutory remedy. WHEREFORE, Defendants request that Plaintiffs Complaint be dismissed, and that Defendants be awarded appropriate costs and legal fees and such further relief as may be appropnate. III. DEMURRER 11. The averments of paragraph 1 through 10 are hereby incorporated by reference. 12. Plaintiff purports to base all of her claims on the verified allegations that in exchange for Plaintiff providing services to or on behalf of Decedent during her lifetime, Decedent agreed that Plaintiff was to be paid after Decedent's death. 13. Pursuant to 20 Pa. C.S.A. §2701(a): (a) A contract... to make... a ... testamentary provision or an obligation dischargeable only at or after death can be established in support of a claim against the estate of a decedent only by: (1) provisions of a will of a decedent stating material provisions of the contract; (2) an express reference in a will of the decedent to a contract and extrinsic evidence proving the terms of the contract; or (3) a writing signed by the decedent evidencing the contract. 14. A true and correct copy of Decedent's Will is attached as Exhibit "D" to the Complaint; the Will neither states material provisions of a contract nor contains an express reference to a contract. 15. Plaintiff has not identified and has not attached any writing signed by the Decedent evidencing a contract. 16. Plaintiff's alleged claims against the unidentified "Trust" are wholly derivative of the claims against the Estate (see Complaint, paragraph 21, "Due to the fact that the majority of Ms. Hoffman's assets went into her trust, Ms. Foltz is seeking remuneration against both the will and the trust should the will contain insufficient funds to reimburse her for her services rendered.") so that §2701(a) also bars any claim against the Trust. 17. Plaintiff's Complaint fails to state a claim against Defendants and should be dismissed pursuant to Pa. R.C.P. 1028(a)(4). WHEREFORE, Defendants request that Plaintiff's Complaint be dismissed, and that Defendants be awarded appropriate costs and legal fees and such further relief as may be appropriate. IV. ALTERNATE DEMURRER OR MOTION FOR MORE SPECIFIC PLEADING ASSERTED ON BEHALF OF "DEBORAH PRIEST, AS TRUSTEE" 18. The averments of paragraph 1 through 17 are hereby incorporated by reference. 19. Plaintiff alleges in paragraph 3 of her Complaint that Deborah Priest was appointed "Trustee and Executrix of the Estate of Janet E. Hoffman on May 26, 2010 by the Register of Wills of Cumberland County." 20. While Deborah Priest admits that she was appointed Executrix of the Estate of Janet E. Hoffnan by the Register of Wills, she was not appointed "Trustee" by the Register of Wills. See File No. 21-10-541, Orphans Court of Cumberland County. 21. Plaintiff alleges (Complaint, paragraph 20) that "the great majority of Ms. Hoffman's Estate... passed directly at the death of Janet E. Hoffman into a testamentary trust that was set up through her will. See Exhibit D." 22. On the contrary, Decedent's will does not set up a testamentary trust. 23. Decedent's will references an inter vivos trust which, based on the face of the will, was established the same day that the will was executed, but Plaintiff does not assert her claims against Deborah Priest in a capacity as trustee of an inter vivos trust, nor does Plaintiff otherwise identify any basis for asserting a claim against Deborah Priest as Trustee of an inter vivos trust. 24. Plaintiff has failed to state a claim against Deborah Priest as "trustee" of any trust and the Complaint against "Deborah Priest as Trustee" should be dismissed pursuant to Pa. R.C.P. 1028(a)(7). 25. In the alternative, if the claim is not dismissed, Plaintiff should be required to file a more specific pleading pursuant to Pa. R.C.P. 1028(a)(3) identifying the trust she is suing and the basis of her claims against that trust, otherwise, "Deborah Priest as Trustee" will not have sufficient information upon which she can respond and defend the claims against her. WHEREFORE, "Deborah Priest as Trustee" requests that Plaintiff's Complaint be dismissed, or in the alternative, that Plaintiff be required to file a more specific claim identifying the trust being sued for which Deborah Priest is alleged to be a trustee, and setting forth sufficient facts to establish the basis for claims against that trust, and that Defendants be awarded appropriate costs and legal fees and such further relief as may be appropriate. Respectfully submitted, SAIDIS, SULLIVAN & ROGERS Daniel L. Sullivan, Esquire Attorney Id. 34548 Stephanie Kleinfelter, Esquire Attorney Id. 80089 26 West High Street Carlisle, PA 17013 (717) 243-6222 Counsel for Plaintiff CERTIFICATE OF SERVICE I hereby certify that on this `a. ?day of , 2011, a true and correct copy of the foregoing document was served upon the party listed below, via First Class Mail, postage prepaid, addressed as follows: Hilary P. Vesell, Esquire Kope & Associates, LLC 95 Saint Johns Church Road, Suite 101 Camp Hill, PA 17011 SAIDIS, SULLIVAN & ROGERS - ??? V'-- Daniel L. Sullivan, Esquire Attorney Id. 34548 26 West High Street Carlisle, PA 17013 717-243-6222 KOPE & ASSOCIATES, LLC HILARY P. VESELL, ESQ. Attorney ID 308358 395 Saint Johns Church Road, Suite 101 Camp Hill, PA 17011 (717) 761-7573 hvesell@kopelaw.com ? Pr OFFICE T110"Voifs , 13 ar e?S "S cowiT v ",A "a 1/,4 N14 , Attorney for Plaintiff DORIS FOLTZ, : IN THE COURT OF COMMON PLEAS Plaintiff, : CUMBERLAND COUNTY, PA V. : NO. 10-7032 (Civil Term) The ESTATE OF JANET E. HOFFMAN and, DEBORAH PRIEST, AS TRUSTEE and, : EXECUTRIX OF THE ESTATE OF, JANET E. HOFFMAN, DECEASED, : JURY TRIAL DEMANDED Defendant. PLAINTIFF'S ANSWER TO DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW COMES, the Plaintiff, Doris Foltz by and through her attorney Hilary Vesell, Esquire, of Kope & Associates, LLC, and files the following Answer to Defendant's Preliminary Objections to Plaintiff's Complaint and in support thereof avers as follows: 1. Exclusive Jurisdiction of the Orphans' Court Division 1. The allegations of Paragraph one (1) are legal conclusions to which no answer is required. To the extent that an answer may be appropriate, the "trust" is identified in the Last Will and Testament of Janet E. Hoffman. 2. Admitted. 3. Denied. To the contrary, because there is no requirement that a trust instrument be filed with the Register of Wills or elsewhere in the public records, the provisions of 20 Pa.C.S. governing actions before the Register of Wills are not applied to such trusts, and a challenge to the validity of a revocable trust must be filed with the court. See, 20 Pa. C.S. § 7754. Compare, Estate of Pew, 655 A.2d 521 (Pa. Super. Ct. 1994). 4. Denied. To the contrary, because there is no requirement that a trust instrument be filed with the Register of Wills or elsewhere in the public records, the provisions of 20 Pa.C.S. governing actions before the Register of Wills are not applied to such trusts, and a challenge to the validity of a revocable trust must be filed with the court. See, 20 Pa. C.S. § 7754. Compare, Estate of Pew, 655 A.2d 521 (Pa. Super. Ct. 1994). 5. Denied. To the contrary, because there is no requirement that a trust instrument be filed with the Register of Wills or elsewhere in the public records, the provisions of 20 Pa.C.S. governing actions before the Register of Wills are not applied to such trusts, and a challenge to the validity of a revocable trust must be filed with the court. See, 20 Pa. C.S. § 7754. Compare, Estate of Pew, 655 A.2d 521 (Pa. Super. Ct. 1994). 6. Denied. To the contrary, because there is no requirement that a trust instrument be filed with the Register of Wills or elsewhere in the public records, the provisions of 20 Pa.C.S. governing actions before the Register of Wills are not applied to such trusts, and a challenge to the validity of a revocable trust must be filed with the court. See, 20 Pa. C.S. § 7754. Compare, Estate of Pew, 655 A.2d 521 (Pa. Super. Ct. 1994). WHEREFORE, Plaintiff, Doris Foltz, respectfully requests this Honorable Court to enter an Order overruling Defendant's Preliminary Objections in the form of lack of jurisdiction. If Defendants' Preliminary Objections are sustained, the Plaintiff respectfully requests leave to file an amended complaint pursuant to Pa.R.Civ.P. 1028(c) or Pa. R. Civ. P. 1033. II. Failure to Exercise a Statutory Remedy 7. No response required. 8. Denied. To the contrary, because there is no requirement that a trust instrument be filed with the Register of Wills or elsewhere in the public records, the provisions of 20 Pa.C.S. governing actions before the Register of Wills are not applied to such trusts, and a challenge to the validity of a revocable trust must be filed with the court. See, 20 Pa. C.S. § 7754. Compare, Estate of Pew, 655 A.2d 521 (Pa. Super. Ct. 1994). 9. Denied. To the contrary, because there is no requirement that a trust instrument be filed with the Register of Wills or elsewhere in the public records, the provisions of 20 Pa.C.S. governing actions before the Register of Wills are not applied to such trusts, and a challenge to the validity of a revocable trust must be filed with the court. See, 20 Pa. C.S. § 7754. Compare, Estate of Pew, 655 A.2d 521 (Pa. Super. Ct. 1994). 10. Denied. To the contrary, because there is no requirement that a trust instrument be filed with the Register of Wills or elsewhere in the public records, the provisions of 20 Pa.C.S. governing actions before the Register of Wills are not applied to such trusts, and a challenge to the validity of a revocable trust must be filed with the court. See, 20 Pa. C.S. § 7754. Compare, Estate of Pew, 655 A.2d 521 (Pa. Super. Ct. 1994). WHEREFORE, Plaintiff, Doris Foltz, respectfully request this Honorable Court to enter an Order overruling Defendants' Preliminary Objections in the form of Failure to Exercise a Statutory Remedy. If Defendants' Preliminary Objections are sustained, the Plaintiff respectfully requests leave to file an amended complaint pursuant to Pa. R. Civ. P. 1028(c) or Pa. R. Civ. P. 1033.. III. Demurrer 11. No response required. 12. Admitted. 13. Denied. To the contrary, where the claimant has proved contract for services but not amount of compensation, agreed upon claimant may recover reasonable value of services rendered. Eichelberger's Est., 170 Pa. 242, 32 A. 605 (1895); Miller's Ap., 100 Pa. 568 (1882). Furthermore, evidence of the value of services is sufficient if it can be determined with "reasonable certainty" what claimant is entitled to. Estate of Cecchine, 485 A.2d 454 (Pa. Super. 1984). 14. Admitted. By way of further response, Decedent promised to pay Plaintiff for her services rendered from her estate by the Executrix when a claim for said services were submitted to the estate in the form of receipts of time-keeping records. 15. Admitted in part, denied in part. While it is admitted that Decedent benefited from the services of Plaintiff, it is specifically denied that no record was kept of such services or that Plaintiff failed to submit time-keeping records to Ms. Priest, the Executrix of Ms. Hoffman's Estate. 16. Denied. To the contrary, where claimant has proved contract for services but not amount of compensation, agreed upon claimant may recover reasonable value of services rendered. Eichelberger's Est., 170 Pa. 242, 32 A. 605 (1895); Miller's Ap., 100 Pa. 568 (1882). Furthermore, because there is no requirement that a trust instrument be filed with the Register of Wills or elsewhere in the public records, the provisions of 20 Pa.C.S. governing actions before the Register of Wills are not applied to such trusts, and a challenge to the validity of a revocable trust must be filed with the court. See, 20 Pa. C.S. § 7754. Compare, Estate of Pew, 655 A.2d 521 (Pa. Super. Ct. 1994). 17. Denied. To the contrary, where claimant has proved contract for services but not amount of compensation, agreed upon claimant may recover reasonable value of services rendered. Eichelberger's Est., 170 Pa. 242, 32 A. 605 (1895); Miller's Ap., 100 Pa. 568 (1882). WHEREFORE, Plaintiff, Doris Foltz, respectfully request this Honorable Court to enter an Order overruling Defendants' Preliminary Objections in the form of a Demurrer. If Defendants' Preliminary Objections are sustained, the Plaintiff respectfully requests leave to file an amended complaint pursuant to Pa. R. Civ. P. 1028(c) or Pa. R. Civ. P. 1033. IV. Alternative Demurrer or Motion for More Specific Pleading Asserted on Behalf of "Deborah Priest, as Trustee" 18. No response required. 19. Admitted 20. Admitted. By way of further response, because there is no requirement that a trust instrument be filed with the Register of Wills or elsewhere in the public records, the provisions of 20 Pa.C.S. governing actions before the Register of Wills are not applied to such trusts, and a challenge to the validity of a revocable trust must be filed with the court. See, 20 Pa. C.S. § 7754. Compare, Estate of Pew, 655 A.2d 521 (Pa. Super. Ct. 1994). 21. Admitted 22. Denied. After reasonable investigation, Answering Respondent is without knowledge or information sufficient to form a belief as to the truth of these averments and, therefore, such allegations are deemed to be denied and strict proof thereof is demanded. By way of further answer, because there is no requirement that a trust instrument be filed with the Register of Wills or elsewhere in the public records, the provisions of 20 Pa.C.S. governing actions before the Register of Wills are not applied to such trusts, and a challenge to the validity of a revocable trust must be filed with the court. See, 20 Pa. C.S. § 7754. Compare, Estate of Pew, 655 A.2d 521 (Pa. Super. Ct. 1994). 23. Denied. After reasonable investigation, Answering Respondent is without knowledge or information sufficient to form a belief as to the truth of these averments and, therefore, such allegations are deemed to be denied and strict proof thereof is demanded. By way of further answer, because there is no requirement that a trust instrument be filed with the Register of Wills or elsewhere in the public records, the provisions of 20 Pa.C.S. governing actions before the Register of Wills are not applied to such trusts, and a challenge to the validity of a revocable trust must be filed with the court. See, 20 Pa. C.S. § 7754. Compare, Estate of Pew, 655 A.2d 521 (Pa. Super. Ct. 1994). 24. Denied. To the contrary, because there is no requirement that a trust instrument be filed with the Register of Wills or elsewhere in the public records, the provisions of 20 Pa.C.S. governing actions before the Register of Wills are not applied to such trusts, and a challenge to the validity of a revocable trust must be filed with the court. See, 20 Pa. C.S. § 7754. Compare, Estate of Pew, 655 A.2d 521 (Pa. Super. Ct. 1994). 25. Denied. After reasonable investigation, Answering Respondent is without knowledge of information sufficient to form a belief as to the truth of these averments and, therefore, such allegations are deemed to be denied and strict proof thereof is demanded. To the contrary, because there is no requirement that a trust instrument be filed with the Register of Wills or elsewhere in the public records, the provisions of 20 Pa.C.S. governing actions before the Register of Wills are not applied to such trusts, and a challenge to the validity of a revocable trust must be filed with the court. See, 20 Pa. C.S. § 7754. Compare, Estate of Pew, 655 A.2d 521 (Pa. Super. Ct. 1994). WHEREFORE, Plaintiff, Doris Foltz, respectfully request this Honorable Court to enter an Order overruling Defendants' Preliminary Objections in the form of an Alternative Demurrer or Motion for More Specific. If Defendants' Preliminary Objections are sustained, the Plaintiff respectfully requests leave to file an amended complaint pursuant to Pa. R. Civ. P. 1028(c) or Pa. R. Civ. P. 1033. Respectfully Submitted, KOPE & ASSOCITES, LLC HILARY VESE L, ESQ. Date: f o1 KOPE & ASSOCIATES, LLC HILARY P. VESELL, ESQ. Attorney ID 308358 395 Saint Johns Church Road, Suite 101 Camp Hill, PA 17011 (717) 761-7573 hvesell@kopelaw.com DORIS FOLTZ, Plaintiff, V. Attorney for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 10-7032 (Civil Term) The ESTATE OF JANET E. HOFFMAN and, DEBORAH PRIEST, AS TRUSTEE and, EXECUTRIX OF THE ESTATE OF, JANET E. HOFFMAN, DECEASED, : JURY TRIAL DEMANDED Defendant. CERTIFICATE OF SERVICE I, Hilary Vesell, Esquire, hereby certify that on April 12, 2011, 1 served a copy of the foregoing Plaintiff's Answer to Defendants' Preliminary Objections via first Class mail, postage prepaid, addressed as follows: Daniel L. Sullivan, Esq. & Stephanie Kleinfelter, Esq. Saidis, Sullivan & Rogers 26 West High Street Carlisle, PA 17013 KOPE & ASSOCIATES, LLC h1ma d??p Hilary Vesell, VERIFICATION I, Doris Foltz, the Plaintiff in this matter, have read the foregoing Answer to Defendants' Preliminary Objections. I verify that my averments in this Answer are true and correct and based upon my personal knowledge. I understand that any false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsifications to authorities. Dated: y- /1- Vo//Ir -44 Doris Foltz DORIS FOLTZ, Plaintiff V. THE ESTATE OF JANET E. HOFFMAN and DEBORAH PRIEST, as Trustee and Executrix of the estate of Janet E. Hoffman, Deceased, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO. 10-7032 CIVIL TERM IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS BEFORE OLER and GUIDO, JJ.* ORDER OF COURT AND NOW, this 4`'' day of October, 2011, upon consideration of Defendants' Preliminary Objections to Plaintiff's Complaint, following oral argument on July 15, 2011, and for the reasons stated in the accompanying opinion, Defendants' preliminary objection in the form of a demurrer to Count I (breach of oral contract) is granted and that count is dismissed, and the remaining preliminary objections are denied. v Hilary P. Vesell, Esq. Kope & Associates, LLC 395 St. Johns Church Road Suite 101 Camp Hill, PA 17011 Attorney for Plaintiff BY THE C URT, J. esley Ole , Jar:, J. ?., 111 - ? CX7 Q r"1 - "? c r -? , u, , a tom. r- 7 - ?` , *Guido, J., did not participate in the consideration or disposition of this case. Daniel L. Sullivan, Esq. Stephanie Kleinfelter, Esq Saidis, Sullivan & Rogers 26 West High Street Carlisle, PA 17013 Attorneys for Defendant O.Ple-s Sj cI ?°I ho DORIS FOLTZ, Plaintiff V. THE ESTATE OF JANET E. HOFFMAN and DEBORAH PRIEST, as Trustee and Executrix of the Estate of Janet E. Hoffman, Deceased, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO. 10-7032 CIVIL TERM IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS BEFORE OLER and GUIDO, JJ.* OPINION and ORDER OF COURT OLER, J., October 4, 2011. In this civil case involving a purported oral understanding between Doris Foltz (Plaintiff) and Janet E. Hoffman (Decedent), Plaintiff was allegedly led to believe by Ms. Hoffinan that she would be ultimately compensated through Decedent's estate or through an unidentified trust for services as the caretaker of Decedent. Plaintiff has sued the Estate of Janet E. Hoffman and Deborah Priest (Defendant Priest), in Ms. Priest's capacity as trustee and executrix (Defendants), for breach of an oral contract (Count I), unjust enrichment (Count II), negligent misrepresentation (Count III), quantum meruit (Count IV), and promissory estoppel (Count V).' In response, Defendants have filed preliminary objections in the form of (a) a motion to dismiss or, alternatively, a request to *Guido, J. did not participate in the consideration or disposition of this case. Plaintiff's Complaint, filed Nov. 4, 2010 (hereinafter Complt., I ___). transfer the matter to the Orphans' Court Division based upon a lack of jurisdiction in the Civil Division, (b) a demurrer based upon Plaintiffs failure to utilize a mandatory statutory remedy, (c) a demurrer to all counts, and (d) a demurrer as to any claim against Defendant Priest as trustee of an unnamed trust or, alternatively, a motion for more specific pleading in this regard.2 Argument was held on Defendants' preliminary objections on July 15, 2011. For the reasons stated in this opinion, Defendants' preliminary objections will be granted in part and denied in part. STATEMENT OF THE FACTS The facts alleged in Plaintiff's complaint may be summarized as follows:3 Plaintiff, a sister of Decedent,4 resides in Mechanicsburg, Cumberland County, Pennsylvania.5 Decedent died on May 11, 2010 and, prior thereto, resided at 901 Sheffield Avenue, Mechanicsburg, Pennsylvania.6 Defendant Priest is the niece of Decedent and "was appointed [t]rustee and [E]xecutrix of the Estate of Janet E. Hoffman on May 26, 2010."7 z Defendants' Preliminary Objections, filed March 25, 2011 (hereinafter Prelim. Obj., ¶ --J. 3 In summarizing the allegations of the complaint, the court is not, of course, expressing any opinion as to their accuracy. 4 Complt., ¶ 5. 5 Complt., ¶ 1. 6 Complt., ¶ 2. Complt., ¶ 3. 2 Plaintiff received a Power of Attorney and Durable Healthcare Power of Attorney from Decedent pursuant to a living will executed on January 30, 1997.8 Based upon an oral agreement entered into by Plaintiff and Decedent on or about January 30, 1997,9 Plaintiff began acting as Decedent's caretaker. 10 Pursuant to the oral agreement, Plaintiff, "at her own expense," acted as the caretaker of Decedent during the following periods of time: (1) in 1998, when Decedent broke her leg;' 1 (2) in 1999, when Decedent broke her pelvis; 12 (3) in 2001, when Decedent suffered the effects of a stroke; 13 and (4) in 2007, when Decedent fell and broke her wrist. 14 In 2001, following Decedent's stroke, Plaintiff transported Decedent to and from therapy appointments three days a week for approximately six hours per day over a period of six weeks. 15 In 2007, following Decedent's wrist injury, Plaintiff lived with Decedent for four consecutive weeks in order to care for Decedent. 16 Defendant Priest received a subsequent Power of Attorney and Durable Healthcare Power of Attorney from Decedent in November of 2006.17 In addition, Plaintiff continued s Complt., ¶ 5. 9 Complt., ¶ 24. 10 Complt., ¶ 7-8. 11 Complt., ¶ 9. 12 Complt., ¶ 10. 13 Complt., ¶ 11. 14 Complt., ¶ 13. 15 Complt., ¶ 11. 16 Complt., ¶ 13. 17 Complt., ¶ 12. 3 to act as Decedent's caretaker. 18 Throughout the ten-year period in which Plaintiff acted as Decedent's caretaker, 19 Plaintiff prepared meals, tended to Decedent's shopping needs, performed Decedent's banking activities, washed Decedent's laundry, and provided Decedent with transportation to various medical appointments at Plaintiff s expense.20 On May 10, 2010, the day before Decedent's death, Decedent was a patient at Holy Spirit Hospital and identified Plaintiff to hospital staff as her caretaker. 21 On several occasions during Decedent's lifetime, Plaintiff requested payment for her caretaking services. 22 When Plaintiff asked Decedent for compensation, Decedent responded by stating that Plaintiff should "keep account of [her] time and when [Decedent] die[d], [should] hand in her time and [she would] be well paid."23 Decedent also said to Plaintiff on several occasions, "[T]hanks until you're better paid. 5324 Following Decedent's death, Plaintiff submitted an invoice for her caretaking services to Defendant Priest, as executrix of Decedent's estate and trustee of a trust created by Decedent.25 Counsel for Plaintiff made a similar demand upon Defendant Priest in those capacities. 26 However, Defendant Priest's counsel refused to authorize 18 Complt., 112. 19 Complt., T 8. 20 Complt., ¶ 14. 21 Complt., T 15. 22 Complt., T 16. 23 Complt., T 16. 24 Complt., T 16 25 Complt., T 17. 26 Complt., T 18. 4 reimbursement of Plaintiff for her services, 27 and Plaintiff has received no compensation for her services as caretaker.28 In response to Plaintiff's demands, Defendant Priest's counsel advised that the only probate asset remaining in Decedent's estate was a 2004 Chrysler Sebring four-door sedan.29 Plaintiff, however, avers that a trust was created into which Plaintiff believes Decedent's assets were transferred.30 As a consequence, Plaintiff is seeking damages in the amount of $100,000 against both Decedent's estate and the otherwise unspecified trust for services rendered as Decedent's caretaker. Defendants' Preliminary Objections to Plaintiffs Complaint were filed on March 25,201 1.3 1 Defendants' request for a transfer of the case to the Orphans' Court Division is premised upon the contention that Plaintiff's claims involve the administration and distribution of property from an estate or trust. 32 Defendants' motion to dismiss is based upon Plaintiff's failure to exercise a statutory remedy under 20 Pa. C.S. §3386, requiring litigation of her claim in the confirmation-of-accounts process.33 Defendants' demurrer to all counts is premised upon Plaintiff's failure to state a cognizable claim, as Plaintiff has not presented a signed writing by the Decedent evidencing the purported agreement 27 Complt., ¶ 19. 28 Complt., ¶ 8. 29 Complt., ¶ 19. 30 Complt., ¶ 20. 31 Prelim.Obj. 32 Prelim. Obj., § I. 33 prelim. Obj., § Il. 5 between Plaintiff and Decedent pursuant to 20 Pa. C.S. §2701.34 Defendants' demurrer or, alternatively, motion for a more specific pleading, relating to Defendant Priest's status as a proper party, is based upon Plaintiff's failure to identify the exact nature of the trust referenced in the complaint and lack of specificity regarding Defendant Priest's relationship to the unidentified trust. 35 DISCUSSION Jurisdiction. Under Section 711(1)-(3) of the Probate, Estates and Fiduciaries Code, the Orphans' Court Division of the court has exclusive jurisdiction over the following: (1) "[t]he administration and distribution of the real and personal property of decedents' estates ... ; (2) [t]he administration and distribution of the real and personal property of testamentary trusts, and the reformation and setting aside of any such trusts and (3) [t]he administration and distribution of the real and personal property of inter vivos trusts, and the reformation or setting aside of any such trusts ...." 20 Pa. C.S. §711(1)-(3). However, when a case raises "substantial questions concerning matters enumerated in section 711 and also matters not enumerated in that section," jurisdiction may be exercised through the appropriate civil division of the court of common pleas. 20 Pa. C.S. §712(3). Cases involving proof of claims against a decedent's estate may be heard in the civil division of the court of common pleas, but, once the claim is determined, the orphans' court division has sole jurisdiction to distribute the assets of the estate or trust. Phillips v. Allegheny Valley R.R., 107 Pa. 465 (1884); In re Malvestuto's 34 Prelim. Obj., § III. 35 Prelim. Obj., § N. 6 Estate, 25 Pa. D. & C.2d 686, 690-91 (Phila. Cnty. 1962); Perkasie Vulcanizing Co. v. Mundorf, 62 Pa. D. & C.2d 769, 771 (Bucks Cnty. 1973). The present case involves a claim against Decedent's estate but also raises substantial questions concerning matters not within the exclusive jurisdiction of the Orphans' Court Division under section 711. As such, Plaintiff's complaint was properly filed in, and may be tried in, the Civil Division of this court. Accordingly, Defendants' request for transfer of the case to the Orphans' Court Division will be denied. Failure to exercise a statutory remedy. In general, preliminary objections may be filed by a party based upon a failure of the other party to exercise or exhaust a statutory remedy. Pa. R.C.P. No. 1028(a)(7). When an exclusive statutory remedy is provided, an objection by a party based upon the opposing party's failure to exhaust a statutory remedy is a challenge to the power of the court to hear an action. Lashe v. Northern York Cnty. Sch. Dist., 52 Pa. Cmwlth. 541, 545, 417 A.2d 260, 262 (1980). Under section 3386 of the Probate, Estates and Fiduciaries Code, "[i]f any claimant whose claim is not reported to the court by the personal representative as an admitted claim shall fail to present it at the call for audit or confirmation, he shall not be entitled to receive any share of the real and personal estate distributed pursuant to such audit or confirmation, whether the estate of the decedent be solvent or insolvent." 20 Pa. C.S. §3386. Defendants assert that Plaintiff is required by statute to present her claims, rejected by Decedent's personal representative, in the course of the confirmation-of-accounts process in the decedent's estate. However, an objection to an account at the confirmation- 7 of-accounts proceeding is not the exclusive means for initiating a claim against an estate. Therefore, Defendants' motion to dismiss for failure to exercise a mandatory statutory remedy will be denied. Demurrers, in general. The Pennsylvania Rules of Civil Procedure provide for preliminary objections in the nature of a demurrer where the complaint is legally insufficient to sustain a cause of action. Pa. R.C.P. No. 1028(a)(4). Typically, the court must resolve the issues solely on the basis of the allegations in the challenged pleading, and generally no allegations or evidence outside of the pleading may be considered to dispose of the legal issues presented. Hess v. Fox Rothschild, LLP, 2007 PA Super 133, ¶18, 925 A.2d 798, 805. When considering a demurrer to a complaint, the court must accept all material facts set forth in the complaint, as well as all inferences reasonably deducible therefore, as true, and "decide whether, based on the facts averred, recovery is impossible as a matter of law." Wagner v. Waitlevertch, 2001 PA Super 100, ¶6, 774 A.2d 1247, 1250. A demurrer to a complaint should be sustained only when the plaintiff "has failed to assert a legally cognizable cause of action" and cannot prevail. Lerner v. Lerner, 2008 PA Super 183, ¶11, 954 A.2d 1229, 1234. Demurrer to Count I (breach of oral contract). To successfully plead a cause of action for breach of contract, a party must set forth the following three elements: "(1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages." Williams v. Nationwide Mutual Ins. Co., 750 A.2d 881, 884 (Pa. Super. 2000). In addition, "[w]hen it is claimed that someone has 8 contractually limited his testamentary freedom, [Pennsylvania's] standard of proof is a demanding one." Hatbob v. Brown, 394 Pa. Super. 234, 246, 575 A.2d 607, 612 (1990), citing Kester Estate, 477 Pa. 243, 383 A.2d 914 (1978). Under the Probate, Estates and Fiduciaries Code, contracts that concern an obligation dischargeable only at or after death can be established against a decedent's estate only through "(1) provisions of a will of the decedent stating material provisions of the contract; (2) an express reference in a will of the decedent to a contract and extrinsic evidence proving the terms of the contract; or (3) a writing signed by the decedent evidencing the contract." 20 Pa. C.S. §2701(a)(I)-(3). The intent of this statute is to decrease the amount of litigation concerning contracts of succession and restrict the methods in which a party may prove such contracts. Comment - 2005 Main Vol., 20 Pa. C. S. §2701. In the present case, Plaintiff is asserting that Decedent orally contracted to limit her testamentary freedom, by promising to compensate Plaintiff for her caretaking services after Decedent's death. As such, the standard of proving a contract of this nature is a demanding one under Pennsylvania law. Plaintiff has failed to satisfy her pleading burden in this regard, as the complaint does not allege the existence of any writing, testamentary or otherwise, that evidences the existence of the purported agreement. Given the plain language of the statute concerning the methods in which a party may prove contracts dischargeable only after death, Plaintiff has failed to assert a legally cognizable claim for breach of oral contract and cannot prevail in this particular of her complaint. Accordingly, Defendants' preliminary objection in the form of a demurrer to Count I (breach of contract) of Plaintiff's complaint will be sustained. 9 Demurrers to Count II (unjust enrichment) and Count IV (quantum meruit). In general, a quasi-contract, or an implied-in-law contract, arises when "one party is unjustly enriched at the expense of another." Central Storage & Transfer Co. v. Kaplan, 37 Pa. Cmwlth. 105, 114, 389 A.2d 711, 715 (1978). When one party has been unjustly enriched at the expense of another, the party receiving the benefit must "make restitution to the other." Meehan v. Cheltenham Twp., 410 Pa. 446, 449, 189 A.2d 593, 595 (1963). To succeeed in a claim for unjust enrichment, a plaintiff must prove the following: (1) a benefit was "conferred onto the defendant by plaintiff," (2) "appreciation of such benefits by [the] defendant;" and (3) "acceptance and retention of such benefits under such circumstances that it would be inequitable for [the] defendant to retain the benefit without payment of value." Stoeckinger v. Presidential Fin. Corp. of Del. Valley, 2008 PA Super 95, ¶ 12, 948 A.2d 828, 833. "The doctrine does not apply simply because the defendant may have benefited as a result of the actions of the plaintiff," but rather it applies when the enrichment is unjust. Id. In the court's view, Plaintiff's complaint, viewed in its entirety, alleges the required elements to sustain a valid cause of action for unjust enrichment. Plaintiff's complaint alleges the following: (1) Decedent received the benefit of Plaintiffs caretaking services for ten years, during which time Plaintiff prepared Decedent's meals, completed Decedent's shopping, performed Decedent's banking, washed Decedent's laundry, and provided Decedent with transportation; (2) Decedent suffered from various injuries and illnesses in 1998, 1999, 2001, and 2007, during which time Plaintiff performed additional caretaking duties, such as living in Decedent's home to care for her 10 during four consecutive weeks; (3) Decedent accepted the benefit of said services several times with an understanding that the services were not gifts; and (4) Decedent accepted and retained Plaintiffs caretaking services over a ten-year period of time without payment of value to Plaintiff. If all material facts set forth in the complaint, as well as all inferences reasonably deducible therefrom, are presumed to be true, Plaintiff has adequately pled the necessary facts to support her claim of unjust enrichment. Therefore, Defendants' demurrer to Count II (unjust enrichment) of Plaintiff's complaint will be denied. "Generally, when services have been rendered by one person to another, the law presumes a promise, on the part of him who has received them, to pay what the services were reasonably worth." In re Porter's Estate, 110 Pa. Super. 27, 30, 167 A. 490, 492 (1933), citing Smith v. Milligan, 43 Pa. 107 (1862). In such cases, the law implies a contract to pay for the rendered services in accordance with reason, justice, and common usages of society. Id. Implied contracts are based upon the "relations and circumstances of the parties." Id. To proceed on a quantum meruit claim, a party has the burden to prove, inter alia, "(1) the performance of services, (2) the decedent's acceptance of them, and (3) their value...." In re Dart's Estate, 426 Pa. 296, 298, 232 A.2d 724, 726 (1967), citing Lach v. Fleth, 361 Pa. 340, 64 A.2d 821 (1949). Plaintiff contends that, over a ten-year period of time, she acted as Decedent's caretaker and performed many of Decedent's daily activities, including cooking, washing Decedent's laundry, and shopping. Plaintiff further asserts that Decedent accepted Plaintiff's services, and even identified Plaintiff as her caretaker to hospital staff the day 11 before her death. Plaintiff asserts that she is entitled to $100,000 to fully compensate her for her financial loss arising out of the services provided to Decedent. If the alleged facts are taken as true, Plaintiff has successfully pled a cognizable claim. Therefore, Defendants' preliminary objection in the form of a demurrer to Count IV (quantum meruit) of Plaintiff's complaint will be denied. Demurrer to Count III (negligent misrepresentation). To successfully plead a cause of action for negligent misrepresentation, a party must prove the following: "(1) a misrepresentation of a material fact; (2) made under circumstances in which the misrepresenter ought to have known its falsity; (3) with an intent to induce another to act on it; and (4) which results in injury to a party acting in justifiable reliance on the misrepresentation." Bilt-Rite Contractors, Inc. v. The Architectural Studio, 581 Pa. 454, 466, 866 A.2d 270, 277 (2005), citing Gibbs v. Ernst, 538 Pa. 193, 647 A.2d 882 (1994). As is generally true of negligence actions, the complaining party must also prove the existence of a duty owed by one party to another. Id. at 471, 866 A.2d at 280. To determine whether or not a duty of care exists, the following factors should be considered: "(1) the relationship between the parties; (2) the social utility of the actor's conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution." Id. at 472, 866 A.2d at 281, citing Althaus v. Cohen, 562 Pa. 547, 756 A.2d 1166 (2000). A duty also may arise in cases where a contractual relationship exists. See id. at 472-73, 866 A.2d 281-82. 12 As a matter of law, the court cannot say at this time that Plaintiffs complaint fails to establish a legally cognizable claim for negligent misrepresentation. Plaintiff asserts that Decedent misrepresented the fact that Plaintiff would be justly compensated upon Decedent's death through a trust or will, which induced Plaintiff to continue to act as Decedent's caretaker. Under the circumstances alleged, Decedent was in a position to know the falsity of her misrepresentation, as she had not included any provision in her will or trust that would ensure that Plaintiff would be justly compensated for her caretaking services. It is alleged that, when Plaintiff requested compensation for her services, Decedent assured Plaintiff that she would be "well paid" at Decedent's death, which induced Plaintiff to continue acting in her capacity as caretaker. Plaintiff asserts that she suffered financial injury based upon her justifiable reliance on Decedent's promise. Decedent's duty to Plaintiff purportedly arose out of a business agreement. Therefore, Plaintiffs complaint sets forth the requisite elements necessary to assert a valid cause of action for negligent misrepresentation. Accordingly, Defendants' demurrer to Count III (negligent misrepresentation) of Plaintiffs complaint will be denied. Demurrer to Count V (promissory estoppel). To maintain an action for promissory estoppel, a party must show the following: "(1) the promisor made a promise that he should have reasonably expected to induce action or forbearance on the part of the promisee; (2) the promisee actually took action or refrained from taking action in reliance on the promise; and (3) injustice can be avoided only by enforcing the promise." Crouse v. Cyclops Indus., 560 Pa. 394, 403, 745 A.2d 606, 610 (2000). 13 Plaintiff's complaint properly states a legally cognizable claim for promissory estoppel. On several occasions, Plaintiff asserts, Decedent agreed to pay Plaintiff for her services as caretaker. Plaintiff's Complaint alleges the following: (1) Decedent should have reasonably expected that her promise to pay Plaintiff for her services would induce Plaintiff to continue acting in her capacity as caretaker; (2) Plaintiff relied on Decedent's promise to compensate and continued providing Decedent with caretaking services over a ten-year period of time; and (3) injustice to Plaintiff' can be avoided by enforcing Decedent's promise. Accordingly, Defendants' demurrer to Count V (promissory estoppel) of Plaintiff's complaint will be denied. Motion for a more specific pleading, in general. Pennsylvania Rule of Civil Procedure 1028(a)(3) allows a party to preliminarily object to an opponent's pleading for "insufficient specificity." Pa. R.C.P. No. 1028(a)(3). In this regard, the Pennsylvania Superior Court has stated that [t]he pertinent question under Rule 1028(a)(3) is `whether the complaint is sufficiently clear to enable the defendant to prepare his defense,' or `whether the plaintiff's complaint informs the defendant with accuracy and completeness of the specific basis on which recovery is sought so that he may know without question upon what grounds to make his defense.' Rambo v. Greene, 2006 Pa. Super. 231, ¶11, 906 A.2d 1232, 1236. To determine the sufficiency of the pleadings in a complaint, the court must not simply focus upon one portion or one paragraph of the complaint, but "such paragraphs must be read in context with all other allegations in that complaint." Yocoub v. Lehigh Valley Med. Assocs. P. C., 2002 Pa. Super. 251, ¶17, 805 A.2d 579, 589. 14 The Commonwealth is a fact-pleading state in which "the complaint must provide the defendant notice of the basis of the claim as well as a summary of the facts essential to support that claim." Latniak v. Von Koch, 70 Pa. D. & C.4th 489, 494 (Lackawanna Cnty. 2004), citing Alpha Tau Omega Fraternity v. Univ. of Pa., 318 Pa. Super. 293, 464 A.2d 1349 (1983). Pennsylvania Rule of Civil Procedure 1019 states that "material facts on which a cause of action or defense is based shall be stated in a concise and summary form." Pa. R.C.P. No. 1019(a). The court has broad discretion in determining the amount of detail that must be averred since the standard of pleading set forth in the rule "is incapable of precise measurement." Pike County Hotels Corp. v. Kiefer, 262 Pa. Super. 126, 134, 396 A.2d 677, 681 (1978). Finally, where a matter can be assumed to be more within the knowledge of the non-pleader, the details of the allegations regarding it can be relegated to the discovery process. Bethlehem Steel Corp v. Litton Indus., Inc., 71 Pa. D. & C.2d 635, 644-45 (Allegheny Cnty. 1974). Plaintiff has averred that Defendant Priest is the trustee of a trust created by Decedent to which all of Decedent's property transferred upon her death. Furthermore, with respect to Plaintiffs allegation of the existence of a trust taking effect upon Decedent's death, the exact nature of any such trust is, presumably, more within the knowledge of Defendants than Plaintiff. When read in its entirety, Plaintiffs complaint provides sufficient notice to Defendants of the nature and basis of the claims alleged against them to allow them to prepare an answer and defense. Further information concerning the exact nature of the trust, if any, and Defendant Priest's relationship as 15 trustee to said trust, if any, may be relegated to the discovery process. Therefore, Defendants' motion for a more specific pleading will be denied. Based on the foregoing, the following order will be entered: ORDER OF COURT AND NOW, this 4"' day of October, 2011, upon consideration of Defendants' Preliminary Objections to Plaintiffs Complaint, following oral argument on July 15, 2011, and for the reasons stated in the accompanying opinion, Defendants' preliminary objection in the form of a demurrer to Count I (breach of oral contract) is granted and that count is dismissed, and the remaining preliminary objections are denied. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J Hilary P. Vesell, Esq. Kope & Associates, LLC 395 St. Johns Church Road Suite 101 Camp Hill, PA 17011 Attorney for Plaintiff Daniel L. Sullivan, Esq. Stephanie Kleinfelter, Esq. Saidis, Sullivan & Rogers 26 West High Street Carlisle, PA 17013 Attorneys for Defendant 16 DORIS FOLTZ, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. THE ESTATE OF JANET E. NO. 10-7032 - CIVIL TERM HOFFMAN and DEBORAH PRIEST, as Trustee and Executrix of The Estate of JANET E. HOFFMAN, Deceased, : Defendants JURY TRIAL DEMANDED c. NOTICE TO PLEAD - C :r.r1o -- TO: Doris Foltz r . 7- c/o Hilary P. Vesell, Esquire Kope & Associates, LLC 95 Saint Johns Church Road, Suite 101 Camp Hill, PA 17011 You are hereby notified to plead to the enclosed New Matter within twenty (20) days from service hereof, or a default judgment may be entered against you. SAIDIS, SULLIVAN & ROGERS Daniel L. Sullivan, Esquire Attorney Id. 34548 Elyse E. Rogers, Esquire Attorney Id. 41274 26 West High Street Carlisle, PA 17013 (717) 243-6222 Counsel for Defendants DORIS FOLTZ, Plaintiff V. THE ESTATE OF JANET E. HOFFMAN and DEBORAH PRIEST, as Trustee and Executrix of The Estate of JANET E. HOFFMAN, Deceased, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-7032 - CIVIL TERM JURY TRIAL DEMANDED ANSWER AND NEW MATTER AND NOW, come Defendants, by their attorneys, Saidis, Sullivan & Rogers, and file the following Answer and New Matter to the Complaint: Introduction Plaintiff's "Introduction" is a self-serving description of the lawsuit not authorized by the Pennsylvania Rules of Civil Procedure and requires no response. To the extent a response is required, the accuracy and completeness of the "Introduction" is denied because the Complaint is a written document which speaks for itself. Further, "The Estate of Janet E. Hoffman" is not a properly-named, separate party in this matter. Parties I . Admitted upon information and belief. 2. Admitted. 3. Admitted in part and denied in part. It is admitted that Deborah Priest was the niece of Janet E. Hoffman and was appointed Executrix of the Estate of Janet E. Hoffman on or about May 26, 2010 by the Register of Wills of Cumberland County. It is denied that Deborah Priest "was appointed Trustee on May 26, 2010" or at any other time by the Register of Wills of Cumberland County. Further, it is unclear in this paragraph and throughout the Complaint the capacity in which claims are asserted against Deborah Priest as "Trustee" because Plaintiff has failed to identify any such trust. Decedent did not provide for a testamentary trust in her will, and although she had named Deborah Priest as Trustee of a separate inter vivos trust in 2006, this inter vivos trust is not identified in the Complaint. Jurisdiction and Venue 4. Paragraph 4 states a conclusion of law to which no response is required. Facts 5. Admitted in part and denied in part. It is admitted that Doris Foltz was the sister of the Decedent. It is admitted only that the Exhibit A documents, on their face, appear to be a Power of Attorney and Durable Healthcare Power of Attorney executed by Decedent. Neither document provides for compensation or '`reimbursement" to Plaintiff. After reasonable investigation, Defendants are without information or knowledge sufficient to form a belief as to the truth of the remaining averments of this paragraph and they are deemed denied. 6. The averments of paragraph 6 are conclusions of law to which no response is required. In further response, nevertheless, it is denied that Ms. Foltz deserves reimbursement from the Estate, and Plaintiff's reference to the "Trust of Janet E. Hoffinan" is unclear. To the extent that Plaintiff is referring to the inter vivos trust previously created by Decedent for which Deborah Priest was appointed Trustee, it is dewed that any reimbursement is due to Plaintiff from said Trust. 7. After reasonable investigation, Defendants are without information or knowledge sufficient to form a belief as to the truth of this averment and it is deemed denied. In further response, nevertheless, because Decedent's Will makes no reference to or provision for "reimbursement" to Plaintiff,, Defendants deny that Decedent made any such agreement or representation. 8. Admitted only that years ago Plaintiff may have done favors for Decedent, who was her older sister. After reasonable investigation, Defendants are without information or knowledge sufficient to form a belief as to the truth of the remaining averments of this paragraph and they are deemed denied. 9. After reasonable investigation, Defendants are without information or knowledge sufficient to form a belief as to the truth of the averment regarding Plaintiff tending to Decedent in 1988 and it is deemed denied. The remaining averments are denied and Defendants' responses to paragraphs 5 and 7 are hereby incorporated by reference. In further response, when reading this averment in conjunction with other averments, it appears that the year reference should be 1998, not 1988, in any event. 10. After reasonable investigation, Defendants are without information or knowledge sufficient to form a belief as to the truth of this averment and it is deemed denied. 11. After reasonable investigation, Defendants are without information or knowledge sufficient to form a belief as to the truth of this averment and it is deemed denied. 12. It is admitted that Decedent executed a new Power of Attorney and Durable Healthcare Power of Attorney naming Deborah Priest as Agent in November, 2006. After reasonable investigation, Defendants are without information or knowledge sufficient to form a belief as to the truth of the averment regarding "duties" and it is deemed denied. The existence of the so-called "Agreement" is denied and Defendants' response to paragraph 7 is hereby incorporated by reference. 13. After reasonable investigation, Defendants are without information or knowledge sufficient to form a belief as to the truth of this averment and it is deemed denied. 14. After reasonable investigation, Defendants are without information or knowledge sufficient to form a belief as to the truth of this averment and it is deemed denied. 15. After reasonable investigation, Defendants are without information or knowledge sufficient to form a belief as to the truth of this averment and it is deemed denied. 16. After reasonable investigation, Defendants are without information or knowledge sufficient to form a belief as to the truth of this averment and it is deemed denied. 17. It is admitted that upon Ms. Hoffinan's death, Plaintiff submitted an invoice for her 'caretaking services" to Deborah Priest, who at that time was Executrix of Ms. Hof-man's estate. Ms. Priest's role as Trustee is unclear based on the allegations of the Complaint because Decedent did not create a testamentary trust so that Defendants are unable to answer further. Defendants' response to paragraph 3 is hereby incorporated by reference. 18. It is admitted that a demand was made upon the Estate of Janet E. Hoffman through Ms. Priest by Plaintiff s counsel. Plaintiff s allegations regarding Ms. Priest's role as Trustee are unclear because Decedent did not create a testamentary trust; Defendants are unable to answer further. Defendants' response to paragraph 3 is hereby incorporated by reference. 19. Admitted in part and denied in part. It is admitted that Exhibit "C" is a letter from Ms. Priest's counsel sent to Plaintiff s counsel. The remaining averments are denied since Exhibit "C" is a written document which speaks for itself. 20. Denied. While it is admitted that Exhibit "D" is a copy of Janet Hoffman's Will, the Will is a written document which speaks for itself and Defendants deny the description and characterization of the contents of the Will. In further response, it is specifically denied that Ms. Hoffman's Will established a testamentary trust or that any of Ms. Hoffnnan's estate passed at her death into a testamentary trust. 21. The averments of paragraph 21 are conclusions of law to which no response is required. In further response., nevertheless, it is denied that Ms. Foltz is deserving of "remuneration" from any source. Defendants' response to paragraph 20 is hereby incorporated by reference. 22. The averments of paragraph 22 are conclusions of law to which no response is required. Count I -Breach of Oral Contract 23-28. Count I of the Complaint, Breach of Oral Contract, was dismissed by Order of Court dated October 4, 2011 so that no response is required. Count H - Uniust Enrichment 29. Defendants' responses to paragraphs 1-28 are hereby incorporated by reference as if set forth in full. 30. After reasonable investigation, Defendants are without information or knowledge sufficient to form a belief as to the truth of this averment and it is deemed denied. 31. After reasonable investigation, Defendants are without information or knowledge sufficient to form a belief as to the truth of this averment and it is deemed denied. 32. Denied. Defendants have not accepted and retained any benefits. Plaintiff s allegation regarding what is "inequitable" is a conclusion of law to which no response is required. 33. Denied. Defendants have not been unjustly enriched in the amount of $100,000.00 or in any other amount. It is further denied that Plaintiff is entitled to a "return" of this money, or otherwise entitled to any payment whatsoever from any source. 42. With respect to the averment regarding Plaintiff rendering services, other than occasional favors which may have been performed years ago, after reasonable investigation, Defendants are without information or knowledge sufficient to form a belief as to the truth of this averment and it is deemed denied. In further response, Plaintiff's averment regarding what was reasonable is a conclusion of law to which no response is required. 43. Denied. While Plaintiff may have performed occasional favors for Decedent, her older sister, years ago, it is denied that said services amounted to "substantial benefit." 44. The averments of paragraph 44 are conclusions of law to which no response is required. 45. The averments of paragraph 45 are conclusions of law to which no response is required. 46. The averments of paragraph 46 are conclusions of law to which no response is required. 47. It is admitted that Plaintiff has demanded payment from Ms. Priest as Executrix and that Ms. Priest has refused payment. It is unclear in what capacity Plaintiff has made demand upon Ms. Priest as alleged Trustee. Ms. Priest has denied payment in any capacity whatsoever. 48. The averments of paragraph 48 are conclusions of law to which no response is required. WHEREFORE, Defendants demand that Plaintiff s Complaint be dismissed with prejudice. Count V - Promissory Estoppel 49. Defendants' responses to paragraphs 1-48 are hereby incorporated by reference as if set forth in full. 50. Denied. Defendants' responses to paragraph 35 are hereby incorporated by referenced. 51. After reasonable investigation, Defendants are without information or knowledge sufficient to form a belief as to the truth of this averment regarding Plaintiff s reliance and it is deemed denied. In further response, any allegation regarding what was "reasonable" is a conclusion of law to which no response is required. The averments regarding representations are denied and Defendants' response to paragraph 35 is hereby incorporated by reference. 52. The averment of paragraph 52 is a conclusion of law to which no response is required. In further response, nevertheless, it is denied that Plaintiff is due payment of any nature. 53. The averments of paragraph 53 are conclusions of law to which no response is required. WHEREFORE, Defendants demand that Plaintiff s Complaint be dismissed with prejudice. Conclusion To the extent Plaintiff's "Conclusion" is an attempt to summarize a claim for damages, it is denied that Plaintiff is due any sums whatsoever. NEW MATTER 54. Any services rendered by Plaintiff were voluntary and gratuitous and were provided because Decedent was Plaintiffs older sister. 55. Plaintiffs claims are barred by the applicable statute of limitations. 56. Plaintiff s claims are barred by the doctrine of laches. 57. Plaintiff s claims are barred by the doctrine of estoppel. 58. Plaintiff is not a competent witness to testify regarding events or statements occurring prior to Decedent's death due to application of Pennsylvania's Dead Man's Rule. WHEREFORE, Defendants demand that Plaintiff's Complaint be dismissed with prejudice. Count III - Negligent Representation 34. Defendants' responses to paragraphs 1-33 are incorporated by reference as if set forth in full. 35. Because Decedent's Will makes no reference to or provision for payment to Plaintiff, and because Defendants, knowing Decedent and her character, do not believe she would have made such representations, Defendants deny this averment. After reasonable investigation, Defendants are without information or knowledge sufficient to form a belief as to the truth of the averment regarding Plaintiffs "requests" for payment and it is deemed denied. 36. After reasonable investigation, Defendants are without information or knowledge sufficient to form a belief as to the truth of this averment and it is deemed denied. In further response, Defendants' reply to paragraph 35 is hereby incorporated by reference. 37. Denied. Defendants' reply to paragraph 35 is hereby incorporated by reference. 38. Denied. Defendants' reply to paragraph 35 is hereby incorporated by reference. In further response, it is denied that Defendants undertook any action to induce Plaintiff to care for Decedent. 39. Denied. Defendants' response to paragraph 35 is hereby incorporated by reference. 40. Denied. Defendants' response to paragraph 35 is hereby incorporated by reference. WHEREFORE, Defendants demand that Plaintiff's Complaint be dismissed with prejudice. Count IV - Ouantum Meruit 41. Defendants' responses to paragraphs 1-40 are hereby incorporated by reference as if set forth in full. 59. Defendants reserve the right to seek amendment of this pleading to add additional affirmative defenses as may appear appropriate as discovery and investigation proceeds. WHEREFORE, Defendants demand that Plaintiffs Complaint be dismissed with prejudice. Respectfully submitted, io (a-?I?? SAIDIS, SULLIVAN & ROGERS Daniel L. Sullivan, Esquire Attorney Id. 34548 Elyse E. Rogers, Esquire Attorney Id. 41274 26 West High Street Carlisle, PA 17013 (717) 243-6222 Counsel for Defendants VERIFICATION I, Deborah Priest, hereby verify that the statements made in the foregoing Answer with New Matter are true and correct to the best of my knowledge or information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. x xqwC 6 Deborah Priest OCT 2 0 2011 CERTIFICATE OF SERVICE I hereby certify that on this a'? day of CU , 2011, a true and correct copy of the foregoing document was served upon the party listed below, via First Class Mail, postage prepaid, addressed as follows: Hilary P. Vesell, Esquire Kope & Associates, LLC 95 Saint Johns Church Road, Suite 101 Camp Hill, PA 17011 SAIDIS, SULLIVAN & ROGERS Daniel L. Sullivan, Esquire Attorney Id. 34548 26 West High Street Carlisle, PA 17013 717-243-6222 c .4 i-T-G- P.? hi PRAECIPE FOR LISTING CASE FOR TRIAL cr3 j ?:0 -<> w P (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY - rNo r !?' Please list the following case: - ; for JURY trial at the next term of civil court. r? ? for trial without a jury. ------------------------------------- -------------------------------------------------------------- ------- CAPTION OF CASE -------- --- (entire caption must be stated in full) (check one) Civil Action -- Law Appeal from arbitration (other) (Plaintiff) y? vs. ?sC E S o f j o I? l [7 N D fP-)o ?Q vJC:fq?'1 `I ?fi; U S ? ruS?--Pl? ?Yk? ; _E U(b (I X L } LS ?CI ? d ? Ja 1 E C? ?'Y)( t1, D4) OoSf d tDefendant) vs. The trial list will be called on T(?I? a (o? adla and Trials commence on J Ljg 0)01 DL Pretrials will be held on Q0 (Briefs are due S days before pretrials No._ 16 _ -f 0 ? , ( I L_ I "Term Indicate the attorney who will try case for the party who files this praecipe: 141)(1c Indicate trial counsel for other parties if known: Oat1Io S"U)IIyo-), ESg, This case is ready for trial. Date: -S `1 0 Signed: Print Na Attornei 1 ? 1,1,?f k04r ?q 4)v . tk13ys 12-f+ P--746&X CERTIFICATE OF SERVICE I, Hilary Vesell, Esquire of Kope & Associates, LLC, hereby certify that a true copy of the foregoing Praecipe for Listing Case for Trial was served this date upon the below-referenced individual at the below listed addresses by hand delivery: Daniel L. Sullivan, Esq. Saidis, Sullivan & Rogers 26 West High Street Carlisle, PA 17013 KOPE & ASSOCIATES, LLC By: W= (kW ?J HILARY VES LL, ESQ. I.D. 308358 395 St. Johns Church Road Camp Hill, PA 17011 (717) 761-7573 Date: Si/G? 1 KOPE & ASSOCIATES, LLC HILARY VESELL, ESQ. Attorney ID 308358 395 Saint Johns Church Road, Camp Hill, PA 17011 (717) 761-7573 hvesell@kopelaw.com nti; T .-2 rye r co 77 r7l c Suite 101_:: Attorney for Plaintiff DORIS FOLTZ, : IN THE COURT OF COMMON PLEAS Plaintiff, : CUMBERLAND COUNTY, PA V. : NO. 10-7032 (Civil Term) The ESTATE OF JANET E. HOFFMAN and, DEBORAH PRIEST, AS TRUSTEE and, EXECUTRIX OF THE ESTATE OF, JANET E. HOFFMAN, DECEASED, : JURY TRIAL DEMANDED Defendant. CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURUSANT TO RULE 4009.22 As a prerequisite to service of a subpoena for document and things pursuant to Rule 4009.22, Defendant certifies that (1) a notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served, (2) a copy of the notice of intent, including the proposed subpoena, is attached to this certificate, (3) no objection to the subpoena has been received, and (4) the subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. KOPE & ASSOCIATES, LLC J//z f. Y Hilary Ve7 , Esquire DATE: 5 1?? CERTIFICATE OF SERVICE I, Hilary Vesell, Esquire, do hereby certify that on May 31, 2012, 1 served a true and correct copy of the foregoing Certificate Prerequisite to Service of a Subpoena Pursuant to Rule 4009.22 on Plaintiffs, via first class mail, postage prepaid, addressed as follows: Daniel L. Sullivan, Esq. Saidis, Sullivan & Rogers 26 West High Street Carlisle, PA 17013 KOPE & ASSOICATES, LLC Hilary Vesell, ?q. 395 St. John hurch Road, Suite 101 Camp Hill, PA 17011 (717) 761-7573 I.D. 308358 Attorney for Plaintiff KOPE & ASSOCIATES, LLC HILARY VESELL, ESQ. Attorney ID 308358 395 Saint Johns Church Road, Suite 101 Camp Hill, PA 17011 (717) 761-7573 hvesell@kopelaw.com Attorney for Plaintiff DORIS FOLTZ, : IN THE COURT OF COMMON PLEAS Plaintiff, : CUMBERLAND COUNTY, PA V, : NO. 10-7032 (Civil Term) The ESTATE OF JANET E. HOFFMAN and, DEBORAH PRIEST, AS TRUSTEE and, EXECUTRIX OF THE ESTATE OF, JANET E. HOFFMAN, DECEASED, : JURY TRIAL DEMANDED Defendant. NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 To: Daniel L. Sullivan, Esq., Defendants' Counsel Plaintiff, Doris Foltz, intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made, the subpoena may be served. Date: Respectfully Submitted KOPE & ASSOCIATES, LLC Hilary Vesell, Esq. CERTIFICATE OF SERVICE I, Hilary Vesell, Esquire do hereby certify that on this day of May, 2012, 1 served a true and correct copy of the foregoing Notice of Intent to Serve a Subpoena to Produce Documents and Things for Discovery Pursuant to Rule 4009.21 via regular U.S. First Class mail, postage prepaid, addressed as follows: Daniel L. Sullivan, Esq. Saidis, Sullivan & Rogers 26 West High Street Carlisle, PA 17013 KOPE & ASSOCIATES, LLC By. 1 1 1 ! I t Hilary Vesell, Esq. I.D. 308358 395 St. Johns Church Road Camp Hill, PA 17011 (717) 761-7573 Attorney for Plaintiff COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Plaintiff File No.- L t? ry, vs. T- ?r } %? i? hI \__j 0 Defendant U: 'SUBPOENA TO PRbbUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: _ (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: at Li 'L' ( Cpl l? } i l' (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above, You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: ADDRESS: TELEPHONE: f y SUPREME COURT ID ATTORNEY FOR: r BY THE COURT: Prothonotary, Civil Division Date: Seal of the Court Deputy DORIS F'OLTZ, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. THE ESTATE OF JANET E. HOFFMAN CIVIL ACTION - LAW AND DEBORAH PRIEST AS TRUSTEE AND EXECUTRIX OF THE ESTATE OF JANET HOFFMAN, Defendants 2010-7032 CIVIL TERM PRETRIAL CONFERENCE AND NOW, this 11th day of July, 2012, after a pretrial conference, and the parties having agreed to a continuance, the trial in this matter is hereby continued,, without' the necessity of: re-listing it for trial. The parties are directed to appear for a pre-trial conference on September 5, 2012, at 9:30i a. and for trial on Monday, September 17, 2012, at 9:30 a. m. A hearing on the motion in limine filed with respect to the Dead Man's Statute and whether or not the Plaintiff is entitled to a jury trial shall be heard on Friday, July 20, 2012, at 3:00 p.m. Pursuant to an agreement of the parties, both partied shall submit simultaneous briefs to this Court on those issues by the close of business on Wednesday, July 18, 2012. This trial is expected to take no more than two days.' By the Court, `-2 tyl Chrisee L,. Peck, J.- Hilary Vesell, Esquire 395 Saint John Church Road, STE 101 Cn? c ?n Camp Hill, PA 17011 ) For the Plaintiff r' rn M ` , ' Daniel L. Sullivan, Esquire ' 26 West High Street Carlisle, PA 17013 For the Defendants Court Admin Prothonotary f ? DORIS FOLTZ, Platiniff V. THE ESTATE OF JANET E. HOFFMAN and DEBORAH PRIEST, AS TRUSTEE and EXECUTRIX OF THE ESTATE OF JANET E. HOFFMAN, DECEASED, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-7032 CIVIL TERM IN RE: MOTION IN LIMINE ORDER OF COURT AND NOW, this 20th day of July, 2012, after consideration of the Motion in Limine filed by the Defendan to preclude certain evidence, and after having had argument on this matter with both counsel present, and upon further consideration of the memorandums of law filed by both parties to this matter, IT IS HEREBY ORDERED AS FOLLOWS: Pursuant to the Dead Man's Rule, Title 42 Pa. CSA Section 5930, the Plaintiff may not testify as to any matte: occurring before the death of the Decedent. This ruling is made subject to the Court reassessing the competency of any witness under the Dead Man's Rule should the evidence adduced at trial appear to present any applicable exception to the rule. Counsel is advised not to bring up any evidence that it believes may be possibly presented under any applicable exceptions either during opening statements or otherwise during trial until this Court first addresses a the merits of any applicable exceptions to the Dead Man's Rule. With respect to whether or not the Plaintiff is entitled to a jury trial in this matter, it is taken under advisement by the Court. By the Court, Christyl?'e L. Peck, J. ? Hilary P. Vesell, Esquire For the Plaintiff rnw c : _.. =rn r? .m d'Daniel L. Sullivan, Esquire =- C/) w For the Defendant . 1fh c C7 rv =' o?G /100 KOPE & ASSOCIATES, LLC HILARY VESELL, ESQ. Attorney ID 308358 395 Saint Johns Church Road, Suite 101 Camp Hill, PA 17011 (717) 761-7573 hvesell@kopelaw.com "F GFFj 1 G' ??' Tt ? rL, t 2812 JUL 8 pM 3: Cu? RLA'# OUNr YL AMlq Y Attorney for Plaintiff DORIS FOLTZ, : IN THE COURT OF COMMON PL Plaintiff, : CUMBERLAND COUNTY, PA V. : NO. 10-7032 (Civil Term) The ESTATE OF JANET E. HOFFMAN and, DEBORAH PRIEST, AS TRUSTEE and, EXECUTRIX OF THE ESTATE OF, JANET E. HOFFMAN, DECEASED, : JURY TRIAL DEMANDED Defendant. MOTION TO SUPPLEMENT DISCOVERY Plaintiff, Doris Foltz, through her counsel, Hilary Vesell and Kope & LLC, respectfully move this Honorable Court to allow Plaintiff to Supplement Di 1. Discovery is finished and the above-captioned case is ready for trial set for September 17, 2012 trial term. 2. However, counsel has become aware that it may be possible to supp discovery. 3. Therefore, counsel is asking for leave of court as she believes there will records at the Holy Spirit Hospital memorializing and nominating the Plaintiff nt caretaker of the Decedent. 4. This written evidence has become particularly important in a case where Defendants are asserting the Dead Man's Act. 5. This is a written statement by Decedent that would be admissible with reference to the Dead Man's Act. 6. Defendants will not be prejudiced by the additional discovery as they have unit the September trial term to prepare their case for trial. 7. Defendants do not concur with this motion. 8. Judge Peck is currently ruling on trial issues in the above-referenced case. WHEREFORE, Petitioner respectfully requests that this Honorable Court permit Hilary Vesell, Esquire, of Kope & Associates, LLC, to supplement discovery with the Decedent's medical records. Respectfully submitted, Date: / O Hilary Vesell, squire KOPE & A CIATES, LLC Supreme C rt ID #308358 CL. N J 4 N O N . . DORIS FOLTZ, Platiniff V. THE ESTATE OF JANET E. HOFFMAN and DEBORAH FRIEST, AS TRUSTEE and EXECUTRIX OF THE ESTATE OF JANET E. HOFFMAN, DECEASED, Defendant . IN THE COURT OF COMMON PLEAS OF I, CUMBERLAND COUNTY, PENNSYLVANIA' NO. 10-7032 CIVIL TERM IN RE: MOTION TO SUPPLEMENT DISCOVERY ORDER OF COURT AND NOW, this 20th day of July, 2012, upon consideration of the Motion to Supplement Discovery filed the Plaintiff in this matter, and after having heard brief argument on the matter in court and the Defendant not bei: opposed thereto as long as if the Defendant needs further investigation after he receives a copy of the supplemental discovery, then he shall be permitted to have a continuance of the trial in this matter, it is hereby ordered that the Motion to Supplement Discovery is granted. The Plaintiff shall be granted leave of court to obtain records at the Holy Spirit Hospital memorializing nominating the Plaintiff as caretaker of the decedent. Plaintiff is directed to then turn over those copies of records to Defendant as further discovery. Should the Defendant need further time then to complete further investigation of the matter, the Defendant may then apply ~o ~ ~' r this Court fora continuance of the trial in this matter. By the Court, Christ ee L. Peck, J. Hilary P. Vesell, Esquire For the Plaintiff / Daniel L. Sullivan, Esquire For the Defendant hYv ao. ~-: n ~~ c ~~ ~ E ~. 2~ s~ 3 y;, C~ O . i »-~ tJrt --~' -- . DORIS FOLT7., IN THE COURT OF COMMON PLF,AS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA '~~~ CIVIL ACTION -LAW THE ESTATE OF JANET E. HOFFMAN and DEBORAH PRIEST,, as Trustee and Executrix of the Estate of Janet Hoffman, Deceased NO. IO-7032 CIVIL TERM ORDER OF COURT AND NOW, this 31s` day of October, 2012, upon relation to this Court that the above matter has been settled and a praecipe to discontinue having been tiled by the attorneys on October 2, 2012, the matters previously taken under advisement by the Court are hereby deemed moot. BY THE COURT, /: Hillary P. Vesell, Esa. Kope and Associates, LLC 95 St. Johns Church Road Suite 101 Camp Hill, PA 1701 n Attorney for Plaintiff c ~' _-U ~ N ~ ~ " ~ ~~ , - ~ `- cs ---r -~ r= ~ ~ ~ v > ,w •~~ -... 1 ~: ~J ~ ~~ ~~~ .,~.> r.. ~ ~ ~ -6 ~ -~ ,~ ~, ,;~., Daniel L. Sullivan, Esq. 26 West High Street Carlisle, P.A 17013 Attorney for Defendant Christylee~l/. Peck, J.