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HomeMy WebLinkAbout03-0250 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION NO. IN RE: ESTATES OF JORDAN A. MILLER, NICHOLAS A. MILLER and HALEY A. MILLER, MINORS PETITION FOR THE APPOINTMENT OF A CUSTODIAN UNDER THE PENNSYLVANIA UNIFORM TRANSFERS TO MINORS ACT OR IN THE ALTERNATIVE FOR THE REMOVAL OF CUSTODIAN UNDER THE PENNSYLVANIA UNIFORM TRANSFERS TO MINORS ACT AND APPOINTMENT OF A SUCCESSOR CUSTODIAN IN ACCORDANCE WITH 20 PA. CONS. STAT. §5318 TO THE HONORABLE JUDGE OF SAID COURT: The Petition of CYNTHIA L. HEINEY, individually and as parent and natural guardian for JORDAN A. MILLER, NICHOLAS A. MILLER and HALEY A. MILLER, minors, and CLIFFORD L. HEINEY (hereinafter the "Petitioners"), by their attorneys, Miller & Associates, PC, respectfully represent that: 1. Petitioner, CYNTHIA L. HEINEY, individually and as natural guardian for JORDAN A. MILLER (born 11/27/90, now 12 years of age), a minor, NICHOLAS A. MILLER (born 9/14/93, now 9 years of age), a minor, and HALEY A. MILLER (born 9/14/93, now 9 years of age), a minor, (Jordan A. Miller, Nicholas A. Miller and Haley A. Miller are hereinafter collectively referred to as the "Minor Children" or the "Miller Children") is mother of the Minor Children and resides at 2627 Logan Street, Borough of Camp Hill, Cumberland County, Pennsylvania. 2. The Minor Children reside with Petitioner Cynthia L. Heiney. 3. Petitioner, CLIFFORD L. HEINEY, Esquire, resides at 191 North Mondel Drive, Gilbert, Maricopa County, Arizona. 4. Respondent, CHARLES L. HEINEY, resides at Loysville, Perry County, Pennsylvania, and his mailing address is P.O. Box 167, Loysville. Respondent is the brother of the Petitioners and uncle to the Minor o Children. 6. Respondent is in possession of monies to which the Minor Children have a claim, which monies are from a bank account funded by the late father, Clayton L. Heiney, Jr., of the Petitioners and Respondent, but due to an accommodation by Clayton L. Heiney, Jr., became registered in the names of Clayton L. Heiney, Jr., and Respondent as joint tenants with right of survivorship. 7. The moneys are in possession of Respondent but are potentially subject to a claim by the Estate of Clayton L. Heiney, Jr., No. 21-02-00070 of the Court of Common Pleas of Cumberland County, Orphans' Court Division, of which the Minor Children are beneficiaries. 8. Respondent has recognized that the moneys in his possession belong to the beneficiaries of the Estate of Clayton L. Heiney, Jr. by having releasing certain of the fund to beneficiaries other than the Minor Children. 9. The mr~neys in question, thus, are property of the Minor Children. 10. Respondent may have made a transfer to each of Jordan A. Miller, Nicholas A. Miller and Haley A. Miller of the certain moneys in the form of bank accounts or certificates of deposit and designated himself as custodian for each of the minors under the Pennsylvania Uniform Transfers to Minors Act. 11. Petitioners, the Minor Children, and Respondent are also the owners, as tenants in common, along with other individuals, of a certain tract of real property, together with a residence erected thereon, situated in the Borough of Weatherly, Carbon County, Pennsylvania (the "Property"). 12. Disputes have arisen between the Petitioners and Respondent over the Property of which the Petitioners are alleging Respondent is in control and is permitting the value of the Property to diminish through lack of maintenance and through failure to dispose of the Property, thereby causing all parties owning the Property to continue to incur expenditures for payment of real estate taxes and other costs without receiving any income from and for the Property. 13. Respondent is causing the financial interests of all of the Petitioners, including the Minor Children, in the Property to diminish. 14. Respo;'~dent has developed a conflict of interest in that he is a fiduciary for Jordan A. Miller, Nicholas A. Miller and Haley A. Miller and managing their assets as custodian, while at the same time, he is currently jeopardizing and diminishing the value of estate assets of the Estate of Clayton L. Heiney, Jr. and non-custodial assets in which the Miller Children have an interest. 15. In addition, there is also friction between Petitioner, Cynthia L. Heiney, parent and natural guardian of the Miller Children, and Respondent, in that there are poor relations between them, and they are unable, due to the poor relations, to discuss and resolve matters regarding the interests of the Miller Children in the Property and the custodial accounts for the Miller Children which require full and frank discussions between them. 16. The acrimonious and hostile relationship between Respondent and the Petitioners, including Cynthia L. Heiney, both individually and as the parent and natural guardian for the Miller Children, is currently jeopardizing and will continue to jeopardize both their interests in the Property and the custodial estates. 17. If Respondent is permitted to continue as custodian of such custodial accounts, Petitioners will suffer great and irreparable loss and injury, and the assets of the custodial estates will be diminished. 18. To date, Respondent has failed and refused to provide to the Petitioners a full and compete accounting of the assets and expenditures on account of the Property and the Estate of Clayton L. Heiney, Jr. and of all of their interests in the Estate and of the location and disposition of the remaining assets of the Decedent's Estate. 19. Petitioners request that this Court remove Respondent as custodian of the accounts of the Minor Children and name Petitioner Clifford L. Heiney, Esquire, who is a member in good standing of the State Bar of the Arizona Supreme Court, as successor custodian, as said Petitioner has indicated he will so serve and confirms his agreement to so serve by joining this Petition as a Petitioner. 20. Petitioners, through their attorneys, sought concurrence of Dennis J. Shatto, Esquire, attorney for Respondent. Respondent has refused his concurrence. WHEREFORE, Petitioners pray that your Honorable Court: (a) Require Respondent to provide a full and complete accounting of his administration as custodian of the property of the Minor Children; (d) Appoint Petitioner Clifford L. Heiney, Esquire, as Custodian of the property of the Minor Children; and (c) Remove Respondent as custodian under the Pennsylvania Uniform Transfers to Minors Act of the accounts of the Minor Children; and (d) Appoint Petitioner Clifford L. Heiney, Esquire, as successor custodian under the Pennsylvania Uniform Transfers to Minors Act of the accounts of the Minor Children; and (e) Grant such other and further relief as this Court deems proper and appropriate. Respectfully submitted, Dated: William E. Miller, Jr., Esquir..c¢--'''~ Anthony E. Marrone, ~.s4i'Qire PC MILLER & 1822 Market~eet 1 Camp Hill, PA 1701 (717) 737-9211 ID Nos. 07220 and 48182 VERIFICATION I, CYNTHIA L. HEINEY, individually and as parent and natural guardian for JORDAN A. MILLER, NICHOLAS A. MILLER and HALEY A. MILLER, do hereby verify that the statements made in the foregoing Petition are true and correct to the best of my knowledge, or information and belief. I understand that false statements made herein are subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. Date: ;~'NTHIA L. HEINEY, parent and ~ natural guardian of JORDAN A. MILLER, NICHOLAS A. MILLER and HALEY A. MILLER VERIFICATION I, CLIFFORD L. HEINEY, do hereby verify that the statements made in the foregoing Petition are true and correct to the best of my knowledge, or information and belief. I understand that false statements made herein are subject to the penalties of 18 Pa. C.S. {}4904 relating to unsworn falsification to authorities. CLIFF~-- IN RE: ESTATES OF : JORDAN A. MILLER, : NICHOLAS A. MILLER, : and HALEY A. MILLER, : MINORS, : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION NO. 21-03-250 IN RE: PETITION FOR THE REMOVAL OF CUSTODIAN UNDER THE PENNSYLVANIA UNIFORM TRANSFERS TO MINORS ACT AND APPOINTMENT OF A SUCCESSOR CUSTODIAN IN ACCORDANCE WITH 20 PA. CONS. STAT. §5318 ORDER OF COURT AND NOW, this 1 st day of April, 2003, upon consideration of the above petition, a Rule is hereby issued upon Charles L. Heiney, Respondent, to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. PENDING A HEARING, Charles L. Heiney is enjoined from selling, disposing of, or in any way encumbering any of the assets or accounts as to which he is custodian for the benefit of the minor children as identified in the petition or any other property in which said minor children have an interest. BY THE COURT, William E. Miller, Jr., Esq. jAnthony E. Marrone, Esq. 1822 Market Street Camp Hill, PA 17011 Attorney for Petitioners J.?VesleyOlor, Jr., ' ' Jj Dennis Shatto, Esq. 111 Locust Street Harrisburg, PA 17101 Attorney for Charles L. Heiney Clifford L. Heiney, Esq. 191 N. Mondel Drive Gilbert, AZ 85233 :rc IN RE: Estates of Jordan A. Miller, Nicholas A. Miller, and Haley A. Miller, MINORS IN THE COURT OF COMMON PLEAS ORPHANS' COURT DIVISION CUMBERLAND COUNTY, PENNSYLVANIA NO. 21-2003-250 RULE WE COMMAND, you that laying aside all business and excuses whatsoever, you be and appear in your proper person before the Honorable Judges of the Court of Common Pleas, Orphans' Court Division at a session of the said Court there to be held, for the County of Cumberland to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. PENDING A HEARING, Charles L. Heine¥ is enjoined from selling, disposing of, or in any way encumbering any of the assets or accounts as to which he is custodian for the benefit of the minor children as identified in the petition or any other property in which said minor children have an interest. Witness my hand an official seal of office at Carlisle, Pennsylvania, this 1 s~t day of April, 2003. Clerk, Orphans' Court Division t ~] ~ ~.~2/~5~.~ ~~~_.~ Cumberland County, Carlisle, PA 'J My Commission Expires on the 1st Monday January, 2006 IN RE: Estates of Jordan A. Miller, Nicholas A. Miller, and Haley A. Miller, MINORS : IN THE COURT OF COMMON PLEAS ORPHANS' COURT DIVISION CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 21-2003-250 ANSWER TO PETITION FOR THE APPOINTMENT OF CUSTODIA~ D/N-DER THE PE~SYLVA~IA D-NIFOR~ TRANSFERS TO MINORS ACT ~ APPOINTMENT OF A SUCCESSOR CUSTODIA~ IN ACCORDANCE WITH 20 PA. CONS. STAT. ~5318 The Respondent, Charles L Heiney, aforesaid Petition, as follows: 1 Admitted. 2 Admitted. 3 Admitted. 4 Admitted. hereby _r~.ponds to the 5 Admitted. 6 Admitted in part and denied in part. It is admitted that on April 15, 1998 Respondent became a joint tenant with right of survivorship of an account initially created and funded by Clayton L. Heiney, Jr. It is denied that the minor children have a claim to the said account. Upon the death of Clayton L. Heiney, Jr., the Respondent became the sole owner of the account. It is denied that Respondent is in possession of monies to which the minor children have a claim. Respondent has created a separate account for each of the minor children under the Uniform Transfers to Minors Act. Respondent is custodian of each account. It is denied that the "bank account" became registered in the names of Clayton L. Heiney, Jr. and Respondent due to an accommodation by Clayton L. Heiney, Jr. In any event, the reason the bank account was registered in joint names is irrelevant. 7. Admitted in part and denied in part. It is admitted that the minor children are beneficiaries of the Estate of Clayton L. Heiney, Jr. It is denied that the monies are in the possession of Respondent, and that the monies are potentially subject to a claim by the Estate of Clayton L. Heiney, Jr., for the reasons stated in the answer to paragraph 6 above, which is incorporated herein by reference. 8. Denied. It is denied that Respondent has "recognized" that the jointly owned bank account belonged Respondent upon the death of Clayton L. Respondent has made monetary gifts to to anyone other than Heiney, Jr. However, the other seven (7) beneficiaries of the Estate of Clayton L. Heiney, Jr. 9. It is denied that the "monies in question" are the property of the minor children. The answer to paragraph 6 above is incorporated herein by reference. It is admitted only that the minor children are beneficial owners of the custodial accounts created by Respondent under the Uniform Transfers to Minors Act. 10. Admitted in part and denied in part. It is admitted that Respondent established a separate account for each of the minor children and designated himself as custodian for each account under the Pennsylvania Uniform Transfers to Minors Act. Any remaining allegations are denied to the extent inconsistent with answers to paragraph 6 through 9 hereof. 11. Admitted. 2 12. Admitted in part and denied in part. It is admitted only that a dispute had arisen between Respondent and Petitioner, Cynthia L. Heiney over reimbursement to Respondent for costs of maintenance, taxes and other expenses paid by Respondent for the benefit of himself and the other seven (7) owners. It is denied that Respondent is in control of the Property. On the contrary, each of the eight (8) owners has an equal right to possession and any other beneficial rights of ownership. It is denied that Respondent is permitting the value of the property to diminish through lack of maintenance and through failure to dispose of the property. The value of the Property has not diminished. Respondent is the owner of an one-eighth (1/8) interest, and has not been authorized, by contract or otherwise, to maintain the property or to dispose of it. However, Respondent has undertaken maintenance and payment of expenses for the benefit of all the owners. Moreover, Respondent has offered to purchase the interests of the other seven (7) owners, but his offer was not accepted by Petitioner Cynthia L. Heiney, individually and as custodian of the interests of the Minor Children. Respondent has no right to dispose of anything but his one-eighth (1/8) interest in the property. He has not caused the other parties to incur any expenditures or costs. Respondent has no greater or lesser ownership interest than the other seven (7) owners. Accordingly, Respondent cannot lease or sell the property without the joinder of the other seven (7) owners, nor until last fall was he requested to sell his interest. 3 13. Denied. It is denied that Respondent is causing the financial interests of anyone to diminish. The interests of the minor children were created by Clayton L. Heiney, Jr. under the Uniform Transfers to Minors Act, and Petitioner, Cynthia L. Heiney, not Respondent, is custodian of those interests. The answer to paragraph 12 above is incorporated herein by reference. 14. Denied. It is denied that Respondent has any conflict of interest. It is further denied that Respondent is jeopardizing and diminishing the value of estate assets of the Estate of Clayton L. Heiney, Jr. and non-custodial assets of the Miller children. Respondent is custodian for the accounts described above, and is receiving professional advice with respect to investments in those accounts. The debts and expenses of the Estate of Clayton L. Heiney, Jr. exceeded the assets of the estate. Respondent has at no time jeopardized or diminished any property in which the Miller children have an interest. The Property was conveyed by Clayton L. Heiney, Jr., in January, 2000, and therefore was not an asset of his estate. 15. Admitted in part and denied in part. It is admitted that there is friction between Petitioner, Cynthia L. Heiney and Respondent. It is denied that they are unable to discuss and resolve matters regarding the interests of the Miller children. Cynthia L. Heiney has not attempted to have any discussions with Respondent. Petitioner, Cynthia L. Heiney, and not Respondent, is custodian of the interests of the Miller children in the Property. The custodial accounts which Respondent created for the minor 4 children are each in the approximate amount of $9,000.00. The Respondent has the benefit of professional investment advice, and there is no need for frequent discussions between Respondent and Petitioner, Cynthia L. Heiney. 16. Denied. Respondent denies the characterization of his relationship with Petitioners as "acrimonious and hostile". Respondent's relationship with Petitioner, Clifford L. Heiney has nothing to do with the best interests of the Miller children. Respondent's relationship with Petitioner, Cynthia L. Heiney has not jeopardized, and cannot jeopardize their interests in the Property or the accounts created by the Respondent. Respondent is not custodian of the interests of the Miller children in the Property. Respondent has voluntarily created accounts, by gift, for the Miller children, and intends to discharge his duties as custodian in full compliance with all legal requirements. 17. Denied. It is denied that if Respondent is permitted to continue as custodian, Petitioners will suffer any loss and injury, and it is denied that the assets of the custodial estates will be diminished. Respondent has consistently acted in the best interest of the Miller children and intends to continue to do so. The petition contains no factual basis for any allegation that Respondent will diminish assets in the custodial accounts other than a contrived claim of conflict of interest. Petitioners have not alleged that Respondent has taken any action as custodian for the accounts which has diminished or could diminish the value of those accounts. 5 18. Denied. It is denied that Respondent has failed and refused to provide Petitioners a full and complete accounting of the assets and expenses for the Property and the Estate of Clayton L. Heiney, Jr. On the contrary, Respondent has provided a detailed account for the Estate of Clayton L. Heiney, Jr. There are no undistributed assets in the said estate. Respondent has also provided a detailed accounting of expenditures which he has made for the benefit of all of the owners of the Property. As an equal one-eight owner of the Property, Respondent has no other obligation or reason to account to the other owners. 19. This is a request for relief to which no response is required. It is denied that there is any basis to remove Respondent as custodian of the accounts of the minor children. 20. Admitted. WHEREFORE, Respondent respectfully prays that Your Honorable Court deny the Petition. Respectfully submitted, CLECKNERAND FEAREN By: Dennis J. Shatto, E~quire PA Attorney ID #25675 119 Locust Street P. O. Box 11847 Harrisburg, PA 17108-1847 (717) 238-1731 Attorney for Respondent, Charles L. Heiney VERIFICATION I verify that the statements made in the foregoing document are true and correct to the best of my knowledge, 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. CHAR~ES L. H]~INEY' ~ DATE: ~/-/ ~ , 2003 CERTIFICATE OF SERVICE I, DENNIS J. SHATTO, hereby certify that I 'served a true and correct copy of the foregoing document upon the person(s) indicated below, by depositing same in the United States mail, postage prepaid at .~arrisburg, Dauphin County, Pennsylvania, this ~ day of _ .. , 2003. William E. Miller, Jr., Esquire Miller & Associates, P.C. 1822 Market Street Camp Hill, PA 17011 CLECKNER AND FEAREN By Dehrfis J. Shatto, Esquire PA Attorney ID #25675 119 Locust Street P.O. Box 11847 Harrisburg, PA 17108-1847 (717) 238-1731 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION NO. 21-2003-250 IN RE: ESTATES OF JORDAN A. MILLER, NICHOLAS A. MILLER and HALEY A. MILLER, MINORS ACCEPTANCE OF SERVICE I accept the service of the Rule and Petition for the Appointment of a Custodian Under the Pennsylvania Uniform Transfers to Minors Act or in the Alternative for the Removal of Custodian under the Pennsylvania Uniform Transfers to Minors Act and Appointment of a Successor Custodian in accordance with 20 Pa. Cons. Stat. {}5318 on behalf of Charles L. Heiney and certify that I am authorized to do so. Acceptance of the service is without prejudice to any objections or defenses which Charles L. Heiney may have. Denn---~s~f Shatto, Esquire / CLECKNER and FEAREN 119 Locust Street P. 0. Box 11847 Harrisburg, PA 17108-1847 IN RE: ESTATES OF : JORDAN A. MILLER, : NICHOLAS A. MILLER, : and HALEY A. MILLER, : Minors : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION NO. 21-03-250 ORPHANS' COURT ORDER OF COURT AND NOW, this 28th day of October, 2003, upon consideration of Petitioners' Motion To Compel Answers to Interrogatories and Production of Documents, a Rule is hereby issued upon Respondent to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. BY THE COURT, William E. Miller, Jr., Esq. MILLER & ASSOCIATES, P.C. Frederick I. Huganir, Esq. HUGANIR LAW OFFICES 1822 Market Street Camp Hill, PA 17011 Attorneys for Petitioners (,,~ ~ DennisJ. Shatto, Esq. 119 Locust Street '",~.O. Box 11847 I-I~rrisburg, PA 17108-1847 orney for Respondent 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION NO. 21-2003-250 'il).!, .:~; ',' 21i:: IN RE: ESTATES OF JORDAN A. MILLER, ~.. NICHOLAS A. MILLER, and HALEY A. MILLER, Minors.' ,. SUR: PETITION FOR THE REMOVAL OF CUSTODIAN UNDER THE PENNSYLVANIA UNIFORM TRANSFERS TO MINORS ACT AND APPOINTMENT OF A SUCCESSOR CUSTODIAN IN ACCORDANCE WITH 20 Pa.C.S. §5318 MOTION TO COMPEL ANSWERS TO INTERROGATORIES AND PRODUCTION OF DOCUMENTS NOW COME Cynthia L. Heiney and Clifford L. Heiney, Petitioners, by their attorneys, Miller & Associates, P.C., and respectfully aver the following: Procedural History_ 1. On June 3, 2003, counsel for Petitioners delivered to Respondent's counsel certain Interrogatories and Request for Production of Documents to Respondent. 2. On August 14, 2003, after an agreed extension, Respondent replied, but he failed to answer or provide complete answers to interrogatories, and he refused to produce relevant documents. (See attached Answers to Interrogatories and Response to Request for Production.) 3. The information requested is relevant to prove: a. That the children's funds were to be distributed to them as of August 30, 2002; b. That the Respondent misappropriated their funds for his own use, and used the funds as security on a loan to himself; c. That the Respondent acts in a manner which is self-dealing and in conflict with his duties as a fiduciary; and d. That the Respondent is not a suitable Custodian of the children's accounts. 4. The information requested in discovery, particularly regarding Respondent's account statements, loan documents, and the purpose for the loan, are relevant herein and intended to lead to the discovery of admissible evidence. Factual Background 5. On May 28, 1998, one Clayton L. Heiney ("Testator") executed his Will, by which he gave his entire estate to eight (8) beneficiaries to be divided equally between them, to wit: his three adult children (Respondent Charles Heiney, and Petitioners Clifford Heiney and Cynthia Heiney), his two adult grandchildren (Carla Heiney and Carisa Heiney), and his three minor grandchildren (Jordan Miller, Nicholas Miller, and Haley Miller). 6. The Testator named the Respondent, Charles Heiney as Executor of his estate and trustee for the minor children's portion of the estate. 7. The Respondent's attorney of record was the scrivener of Testator's Will. 8. On December 22, 2001, the Testator died. 9. However, before his death, on or about April 15, 1998, the Testator loaned to the Respondent a certain sum of monies as security for a loan to enable the Respondent to construct a house, and said sum was deposited into a "Joint Account" at the New Cumberland Federal Credit Union ("NCFCU"), account No. 075057, with the Respondent and Testator designated as its "Joint Owners." 10. As part of the loan agreement with NCFCU, the Respondent was required to provide security by maintaining a balance in the Account that was equal to or greater than the outstanding loan balance until the loan was satisfied. 11. Despite the joint account designation, the deposited monies were the property of the Testator and intended only to be security for the aforesaid loan to Respondent, and upon his death, the monies became part of his estate. 12. The Respondent has made conflicting statements to the Petitioners regarding the disposition of monies in the estate, and in particular, the minor children's share of the estate, including but not limited to the following: a. That on September 20, 2002, Respondent as Executor determined the value of the entire estate to be $75,372.40, including $70,488.41 in the NCFCU account, calculating each of the eight beneficiaries were entitled to $9,421.55 (each share including 1/8th the NCFCU account, "as 1/8th of [the] estate." b. That on September 20, 2002 and times thereafter, the Respondent did not reveal or claim to any of the beneficiaries that he was a "joint owner" of the said account. c. That in his proposed "Releases for Partial Distribution," Respondent indicated that the funds were "to be paid by the Estate of Clayton L. Heiney." d. Respondent represented that he deposited the children's funds in separate trust accounts, but in fact he did not establish any separate accounts until as late as March 11, 2003 after repeated demands for an accounting, and only with the Respondent designated as custodian of these accounts. e. That after Petitioners' demands for an accounting on October 6 and November 18, 2002, including an accounting of the children's funds, Respondent attempted on December 13, 2002 to conceal the foregoing and avoid an accounting of the children's funds by his new conflicting claim that the monies in the joint account were his own, instead of having been part of the Estate as the Testator's bequests to the children. 13. On December 13, 2002, the Respondent attempted to further avoid an accounting by announcing he "gifted the funds for the purpose of paying expenses of the estate and then to the persons named as beneficiaries in the Will" purportedly under the Uniform Gift to Minors Act ("UGMA"). 14. On January 10 and 29, 2003, Petitioners yet again requested an accounting of the children's funds, and despite a promise to comply on February 11, 2003, the Respondent repeatedly failed and refused to comply. 15. The unknown disposition of the children's monies from the estate, the interim deception, and the deposit of monies in the names of the children a year and a half years after the death of the Testator indicates the fiduciary's mismanagement of the children's funds. 16. Notwithstanding the Testator's bequests, the Respondent engaged in self-dealing by keeping the children's funds in the Testator's account and commingling their funds with his own as a scheme to avoid having to satisfy his loan or a discovered attempt to convert the monies to himself. The Interrogatories and Discovery Documents Requested Are Relevant to the Issues in this Case and Will Lead to the Discovery of Admissible Evidence 17. Notwithstanding Petitioners' repeated requests for an accounting of the children's funds and the discovery requests herein, the Respondent has consistently failed and refused to divulge relevant and admissible evidence. 18. Short of sanctions and surcharge in the Testator' s Estate, the children have no recourse but to learn the true disposition and investment of their monies through these proceedings, and replace the Respondent as custodian of the minor children's's accounts. 19. In particular, the following Interrogatories and Requests for Production of Documents are intended to elicit evidence relevant to this proceeding, but the Respondent has failed or refused to answer and produce relevant documents. a. The information sought by Petitioners' Interrogatories 2 through 9 pertains to the children's funds and accounts, the NCFCU account, and the Respondent's loan, which are relevant to prove that the Respondent has been self-dealing, has conflicts of interest and therefore should be removed as the custodian of the children' s monies. b. The information sought by Petitioners' Interrogatories 3 and 5 pertains to proof that the monies in question were never the property of the Respondent, but instead, was the property of the Testator before the latter's death, and that the Respondent's statements as Executor of the Testator's estate did confirm that said monies were part of the Estate, and not the Respondent's, and should have been distributed to the children from the said estate. c. The information requested by Petitioners' Interrogatories 8 and 9 pertains to the aforesaid loan, and will prove the children's entitlement to the funds in question as of the date of the Testator's death, the Respondent's conflict of interest and his motive for keeping the funds in the joint account until March 11, 2003, and therefore that Respondent has been self-dealing. d. The information sought by Petitioners' Interrogatory 10 and Request for Production 4 pertains to the Respondent's false statements that the children's monies were deposited into separate trust accounts in September or October, 2002, and will prove the true disposition of the children's monies given to them under the Testator's Will. e. The information requested by Petitioners' Request for Production 3 pertains to the NCFCU account for the period in question, and to Estate funds apparently transferred to a separate account in Respondent's name on March 11, 2003. Respondent should be required to produce his account statements showing the location and investment of the children's monies from the date of death of the Testator to the present day to determine the accrued interest or dividends on the children' s funds. f. The information sought by Petitioners' Request for Production 12 pertains to the requests for accounting in the Testator's Estate, and is relevant to prove that the funds were in fact part of that estate, and that the Respondent had recognized the children's monies as a bequest. g. The information sought by Petitioners' Request for Production 5 pertains to the Respondent's loan or similar indebtedness to NCFCU which had used the children's monies as security after the death of the Testator, and is relevant to prove self-dealing and a conflict of interest. 20. It is believed, and therefore averred, that the Respondent's reason for "gifting" the monies was his unlawful attempt to somehow remedy his (a) self-dealing which had resulted from his failure to carry out his fiduciary duties, and (b) failure to carry out the testamentary instructions of the Testator that his entire estate be divided equally between the eight beneficiaries. 21. Discovery of evidence that pertains to the misuse of the children's monies as collateral for a fiduciary's personal loan is relevant to this court's inquiry into whether the Respondent should be removed as the children's fiduciary. 22. Respondent should be required to produce answers and documents relevant thereto indicating the disposition of the funds in question from the date of death of the Testator until the present day, including any security interest or encumbrance thereon. 23. Accordingly, Respondent should be required to provide an explanation and to produce the documents pertaining to the "loan," "promise to pay," or whatever other legal obligation attached to the secured balance indicated in the NCFCU Account statement for the period ending December 31, 2001. WHEREFORE, Petitioners respectfully request this Honorable Court to order the Respondent to fully answer Petitioners' Interrogatories and Request for Production of Documents, and produce (1) all account statements showing the location of the funds in question from the date of the Testator's death to the present day, and (2) all documents, applications, 7 agreements and statements pertaining to Respondent's and/or Testator's NCFCU at the time of Testator's death through the present day. indebtedness to Respectfully submitted, Dated: Camp Hill, PA 17011 (717) 737-9211 ID No. 07220 submitted, Frederick. t~ ~tEsquire ~ ~.V~ FFICES 1822 Mark~ ~tr~ Camp Hill, PA 17011 (717) 737-8070 ID No. 30006 IN RE: Estates of JORDAN A. MILLER, NICHOLAS A. MILLER, and HALEY A. MILLER, MINORS IN THE COURT OF COMMON PLEAS ORPHANS' COURT DIVISION CUMBERLAND COUNTY, PENNSYLVANIA NO. 21-2003-250 INTERROGATORIES TO RESPONDENT Petitioners, CYNTHIA L. HEINEY and CLIFFORD L. HEINEY, by their attorneys, Miller & Associates, P.C., requests that Respondent answer the following interrogatories, under oath, or under verification pursuant to 18 Pa. C.S. Section 4904, within thirty (30) days of service hereof. INSTRUCTIONS 1. These interrogatories shall be deemed continuing in nature so as to require prompt filing of supplemental answers if you obtain further relevant information between the time that the answers are served and the time of the trial. 2. Each interrogatory and sub-part of each interrogatory is to be answered separately and as completely as possible. 3. Each interrogatory is addressed to your personal knowledge and to the knowledge and information of your attorneys, accountants, agents, employees, consultants, business entities and representatives, and other representatives. 4. If an interrogatory asks for information which could have, at some time, been answered by consulting documents which no longer exist, then in answer to such interrogatory: (a) identify what information was contained in such documents; (b) identify all of the type(s) of documents which contained the information; (c) state the time period during which such documents were maintained; (d) state the circumstances under which such documents ceased to exist; (e) state the date on which such documents ceased to exist; (f) identify all persons having knowledge of the circumstances under which such documents ceased to exist; and (g) identify all persons who have knowledge or had knowledge of the documents and contents thereof. 5. Whenever an interrogatory calls for the identity of a document or non- written communication claimed by you to be privileged, include in the statement of the identity of such document or non-written communication, the fact and nature of such claim of privilege and the basis for the assertion of such claim. 6. No answer is to be left blank. If the answer to an interrogatory or subparagraph of an interrogatory is "none" or "unknown", such statement must be written in the answer. If the question is inapplicable, "N/A" must be written in the answer. You should attach additional pages if necessary. DEFINITIONS 1. The words "you" and "your" include those individuals and/or entities acting on your behalf, including but not limited to, attorneys, accountants, agents, consultants, employees, business entities or representatives, or other representatives. 2. The word "Respondent" shall refer to CHARLES L. HEINEY, including his agents, employees, independent contractors, attorneys, representatives or other persons acting or purporting to act on his behalf. 3. The words "document" and "documents" include without limitation, any written, recorded or graphic matter, however produced or reproduced, including but not limited to, correspondence, charts, contracts, agreements, notes, computer printouts, memoranda, analyses, appraisals, projections, work papers, orders, summaries, invoices, bills, checks, bank statements, broker statements, buy-sell slips, diaries, calendars, photographs, tax returns, financial statements, management reports, audit reports, special purpose reports, deeds, mortgages, settlement sheets, corporate minutes and by-laws, loan applications, financial records and all other such tangible or retrievable documents of any kind, including information contained on computer hard drives. When any of the foregoing documents are referred to, the references shall include the original and each copy, draft and amendments thereof having any writing, notation, correction or markings unique to such copy, draft, or amendment. Petitioners expect that Respondent will identify documents with particularity. In the case of a document, state the author, preparer or processor, the title of the document, -2- the date of the document (if any), the date which the document was sent or received (if known), the subject of the document, the type of document (e.g., letter, drawing, memorandum, invoice, estimate, note, etc.), present location and custodian of such document. If any such document was, but is no longer, within the possession, custody or control of Respondent, state the disposition of that document. In identifying documents, please include not only those in the possession, custody or control of the Respondent, but also any others of which Respondent has knowledge. If any document is withheld on a claim of privilege or for any other reason, state for each such document: (1) what information is being withheld; (2) the privilege claimed (e.g., attorney-client work product) or other basis for withholding; (3) the factual basis for the privilege claim; and (4) the identity of the information being withheld with sufficient particularity to enable Petitioners to bring the matter before the Court for a ruling on the claim of privilege. 4. The words "identity" or "identify" as used in reference to an individual means to set forth his or her full name, his or her present, or last known, business or home address, and his or her job title. 5. The words "identity" or "identify" as used in connection with a "document" or "documents" means to state the following for each copy of the document which contains different notations: (a) its date; (b) the identity of its author(s); (c) the identity of the individual(s) to whom it was addressed; (d) the format of the document(s); (e) the title; (f) the number of pages; (g) the identity of the individual(s) known or believed to have custody of each copy of the document having notations unique to such copies; and (h) a detailed description of the substance of the document. If the burden of deriving or ascertaining the answers would be substantially the same for the answering party as for the serving party, the answering party may give the serving party an opportunity to review and make copies of the relevant documents. -3- 6. The phrase "relating to" shall be interpreted generally, including, but, not limited to, "directly" or "indirectly referring to", "bearing on", "concerning" or "regarding". INTERROGATORIES 1. When was the Federal Employees Credit Union Investment Account ("FECU" Account #075057) converted or changed to designate you as a joint owner, with right of survivorship? The account was actually opened with Clayton L. Heiney and Charles L. Heiney as joint owners, on April 15, 1998. 2. Explain the reason(s) why the FECU Account was converted or changed to designate you as a joint owner, with right of survivorship. The account was not converted or changed to designate me as a joint owner. The account was created April 15, 1998, by my father and myself. I would be speculating to suggest my father's reason for wanting to establish a joint account with me. In any event, his reasons are irrelevant. 3. (a) Did Clayton L. Heiney intend that the funds in the FECU Account were to be distributed equally to the eight beneficiaries named in his Last Will and Testament? Only Clayton L. Heiney knew his intent. However, Clayton L. Heiney told me that I could do with the funds as I wish. (b) If the answer to the preceding Interrogatory 3(a) is no, please explain your understanding of how the funds were to be distributed. There was no understanding. Clayton L. Heiney told me I could do with the funds as I wish. -4- 4. (a) Did Clayton L. Heiney intend that his assets, including the funds in the FECU Account, were to be distributed in amounts of 1/8th each to each of the eight beneficiaries, including each of the three minor children (Jordan Miller, Nick Miller, and Haley Miller)? Clayton L. Heiney's intention with respect to his assets other than the funds in the FECU account is expressed in his Will. With respect to the funds in the FECU account, the answer to No. 3 above is incorporated herein by reference. (b) If the answer to the preceding Interrogatory 4(a) is no, how do you contend that Clayton L. Heiney's assets, including the funds in the FECU Account were to be distributed? It is my understanding that the assets of Clayton L. Heiney's estate were to be distributed in accordance with his Will. It is also my understanding that upon Clayton L. Heiney's death, I became entitled, as joint owner, to the funds in the FECU account. The answer to No. 3 above is incorporated herein by reference. 5. (a) Did Clayton L. Heiney intend that each of the minor children would have a 1/Sth interest in the funds of the FECU Account, and that their portion of the funds were to be deposited in trust accounts for the benefit of the children? reference.The answers to Nos. 3 and 4 are incorporated herein by _(b)__ If the answer to the preceding Interrogatory 4(a) is no, how do you contend that the children's portion of the funds were to be held and managed? With respect to the FECU account, there was no "portion', for the children. The answer to Nos. 3 and 4 above are incorporated herein by reference. 6. By designating you as joint owner of the FECU Account, did Clayton L. Heiney intend that the funds would be a gift to you, to be used solely for your own benefit and at your sole discretion? It is impossible at this point to determine Clayton L. Heiney's intent. He did not, however, instruct me that I could not use the funds for my own benefit and at my own discretion, and he told me that I could do with funds as I wish. I decided to distribute the funds equally to the same beneficiaries identified in Clayton L. Heiney's Will. -5- 7. By designating you as a joint owner of the FECU Account, did Clayton L. Heiney intend that you would distribute the funds equally to the eight beneficiaries and set up trust accounts for the benefit of the minor children (Jordan Miller, Nick Miller, and Haley Miller)? The answer to No. 6 above is incorporated herein by reference. 8. (a) Did you secure a loan for the construction of your house in Loysville, Pennsylvania? It is irrelevant whether or not I secured a loan for construction of my home. (b) If the answer to the preceding Interrogatory 8(a) is yes, please provide the following information: (i). The date of the loan. (ii). The institution making the loan. (iii). The amount of the loan. (iv). The terms and conditions of the loan. (v). Was it a requirement for the loan that the funds in the FECU Account were to be used as security for the loan? -6- (vi). As a condition of the loan, was there a requirement that you would maintain an account balance that equaled or exceeded the outstanding balance of the loan? 9. (a) Did Clayton L. Heiney agree to allow you to use the FECU Account as security for the loan for construction of your house in Loysville, Pennsylvania? ~ It is irrelevant whether or not Clayton L. Heiney agreed to allow me to use the FECU account as security for the loan for construction of my home. I was a joint owner of the account and needed no permission to use the account. (b) In either event, what was the nature of your agreement with Clayton L. Heiney? Irrelevant. 10. (a) Did you set up or establish accounts, custodial or otherwise, for each of the three minor children (Jordan Miller, Nick Miller, and Haley Miller)? Yes . (b) If the answer to the preceding Interrogatory 10(a) is yes, please provide the following information with respect to the accounts that you set up or established in the names of the three minor children: (i). The type of account and account number. I set up custodial accounts for each child under the Uniform Transfers to Minors Act. The account number for Jordan Miller is 896-09774-1-4; Haley Miller is 896- 09775-1-3; and Nicholas Miller is 896-09776-1-2. (ii). The name and address of the institution where each of the accounts were set up or established. Edward Jones, 1300 Market Street, Lemoyne, PA 17043 -7- ('iii). The names on the accounts. Charles L. Heiney, custodian for Haley A. Miller under PA/UTMA. Charles L. Heiney, custodian for Jordan A. Miller under PA/UTMA. Charles L. Heiney, custodian for Nicholas A. Miller under PA/UTMA (iv). The name or names of any designated contingent beneficiaries on the accounts. None. (v). The date(s) that each of the accounts were set up or established. March 11, 2003 (vi). The amount of the initial deposits that were made to each of the accounts. Jordan A. Miller - $9,472.57 Haley A. Miller - $9,472.57 Nicholas A. Miller - $8,662.58 (vii). The current balance of the accounts. Balances as of June 10, 2003 were as follows: Jordan A. Miller - $10,010o00 Haley A. Miller - $10,168.00 Nicholas A. Miller - $9,302.00 (viii). The specific investment vehicles and/or securities comprising the accounts. Each has a federal zero coupon bond and interest in Income Fund of America. (ix). The interest rate payable on each of the accounts. Zero coupon bond pays 5.25% at maturity. The rate of return on the Income Fund of America varies. (x). If any of the accounts include a certificate of deposit, the date of maturity on the certificate(s). Not applicable. -8- 11. (a) Do you have an investment advisor for the accounts referred to in Interrogatory No. 107 Yes (b) If the answer to the preceding Interrogatory 1 l(a) is yes, please provide the following information: advice. (i). The name of the individual and/or institution providing investment Sean Ferguson of Edward Jones (ii). The individual's address and/or the address of the institution. The address of both is 1300 Market Street, Lemoyne, PA 17043 (iii). The investment advisor's occupation, title, and employer. Mr. Ferguson is an investment representative with Edward Jones. (iv). The investment advisor's background, education and experience in providinqinvestmentadvice. Mr. Ferguson has a degree in economics from Middlebury College in Vermont. He was a mathematics and economics teacher for approximately 7 years. From March of 1998 through the present, he has been employed with Edward Jones. 12. (a) Have you made the records of the children's accounts available ~r inspection by the children's parent(s) or legal representative? I have not been requested to make the records available for inspection by the children's parents or legal representative. I am willing to comply with all legal requirements. (b) If so, to whom did you make the records available ~r inspection and when did you maketherecordsavailable ~rinspection? See 12 (a) above. -9- Respectfully submitted by: Date: June 2, 2003 '~William E. Miller, Jr.,..~.s~ire MILLER & ASSO~ATES, PC 1822 Market Camp Hill, PA 17011 · (717) 737-9211 ID No. 07220 Date: Respectfully submitted, CLECKNERAND FEAREN Dennis J. Shatto, Esquire PA Attorney ID #25675 119 Locust Street P. O. Box 11847 Harrisburg, PA 17108-1847 (717) 238-1731 -10- VERIFICATION I, CHARLES L. HEINEY, verify that the statements made in these Interrogatories are true and correct to the best of my knowledge, 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. Dated: CHARLES L. HEINEY, Resp~r~dent -11- IN RE: Estates of : JORDAN A. MILLER, : NICHOLAS A. MILLER, : and HALEY A. MILLER,: MINORS : IN THE COURT OF COMMON PLEAS ORPHANS' COURT DIVISION CUMBERLAND COUNTY, PENNSYLVANIA NO. 21-2003-250' ANSWER TO REQUEST FOR DOCUMENTS o 4 o Attached is a copy of Joint Share Account Agreement dated April 15, 1998. This account was originally established with Clayton L. Heiney and Charles L. Heiney as joint owners. I mistakenly thought I was added as a joint owner after the account was established. See No. 1 above. Attached is a copy of the account statement for December, 2001, which was used in the preparation of the inheritance tax return. There are no account statements for November and December of 2002 or March and April of 2003. Attached. There were no loan documents. Dated: Respectfully submitted, CLECKNER AND FEAREN Dennis J. Shatto, Esquire PA Attorney ID #25675 119 Locust Street P.. O. Box 11847 Haruisburg, PA 17108-1847 ~ (71.7) 238-1731 IN RE: ESTATES OF JORDAN A. MILLER, NICHOLAS A. MILLER AND HALEY A. MILLER, minors IN THE COURT OF COMMON PLEAS ORPHANS' COURT DIVISION CUMBERLAND COUNTY, PENNSYLVANIA NO. 21-2003-0250 RULE WE COMMAND, you that laying aside all business and excuses whatsoever, you be and appear in your proper person before the Honorable Judges of the Court of Common Pleas, Orphans' Court Division at a session of the said Court there to be held, for the County of Cumberland to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. Wimess my hand an official seal of office at Carlisle, Pennsylvania, this 29th day of October, 2003. Clerk, Orpl~ns' ~rt Division /' ] ] ~t,~,) Cumberland County, Carlisle, PAt ~/if I~l My Commission Expires on the 1 s. Monday .. January, 2006 (~..~½~ IN RE: Estates of = IN THE COURT OF COMMON PLEAS JORDAN A. MILLER, = CUMBERLAND COUNTY, PENNSYLVANIA NICHOLAS A. MILLER, ~ ORPHANS' COURT DIVISION and HALEY A. MILLER,= MINORS = NO. 21-2003-250 REPLY TO MOTION TO COMPEL ANSWERS TO INTERROGATORIES AND PRODUCTION OF DOCUMENTS 1. Admitted. 2. Admitted in part and denied in part. It is admitted that Respondent replied on or about August 14, 2003. It is denied that Respondent failed to answer or provide complete answers to interrogatories, and it is further denied that he refused to produce relevant documents. On the contrary, Respondent provided complete answers to all relevant interrogatories, and produced all requested documents which exist. 3. Denied. To the extent Respondent did not respond to interrogatories, the information requested was irrelevant and would not lead to admissible evidence. There are no allegations that Respondent has acted improperly at any time after he established, by gift, the separate custodial accounts for the minor children. 3a. It is denied that the funds used by Respondent to create the custodial accounts "were to be distributed.., as of August 30, 2002" The funds were gifts by the Respondent and were not subject to any distribution deadline. 3b. Denied It is denied that Respondent misappropriated any funds for his own-use or used any such funds as security on a loan to himself. Respondent took no loans out from August through December of 2002. By way of further answer, it is noted that no such allegations appear in the Petition itself. The allegations are unfounded, scandalous, impertinent, contrived, misleading and together with other similar allegations which follow, are designed to improperly prejudice the Court against Respondent. 3c. Denied. It is denied that Respondent acts in a manner which is self-dealing and in conflict with his duties as a fiduciary. To the extent that any such allegations appear in the Petition, they pertain to the property in Weatherly, which has since been distributed, and which in any event is not involved in the scope of the interrogatories or request for production. The allegations are unfounded, scandalous, impertinent, contrived, misleading, and together with other similar allegations which follow, are designed to improperly prejudice the Court against Respondent. 3d. Denied. The children's accounts were created on March 11, 2003. None of the information requested in the interrogatories pertains to the time period after the accounts were created, and there are no allegations that Respondent has mismanaged the accounts. 4. Denied. To the extent that Respondent did not provide information in response to discovery, the information requested was either irrelevant or non-existent, and would not lead to the discovery of admissible evidence. 5. It is admitted that Clayton L. Heiney's Will provides for equal distribution of his estate to the eight (8) beneficiaries described in paragraph 5 of the Motion. 6. Admitted. 7. Admitted. 8. Admitted. 9. Denied. It is denied that on or about April 15, 1998, Testator loaned Respondent any funds for any purpose. Respondent did not decide to build a house until January of 2001. The joint account was not opened for the purpose of securing any loan. 10. Denied. There was no loan in 1998. The Answer to paragraph 9 above is incorporated herein by reference. 11. Denied. It is denied that the deposited monies were the property of the Testator and intended only to be security for any loan to Respondent, and upon Testator's death became part of his estate. On the contrary, the joint account was created by Respondent and Testator, and upon Testator's death, the account balance became the property of Respondent. The answers to paragraphs 9 and 10 above are incorporated herein by reference. In any event, the statement of paragraph 11 is in the nature of an erroneous legal conclusion. 3 12. Denied. It is denied that the Respondent has made conflicting statements regarding the disposition of monies in the estate or the minor children's share of the estate. 12a. Denied. The value of the estate for tax purposes was already documented in the inheritance tax return. Respondent has never disclaimed his interest in the jointly owned NCFCU account. As of September 20, 2002, Respondent had decided to provide gifts of 7/8 of the NCFCU account. Any reference to the NCFCU account as an estate asset was made only for convenience and simplicity. 12b. Denied. Respondent has always claimed that he was a joint owner of the said account. In any event, Respondent was always in fact a joint owner of said account, and had no obligation to reveal his ownership interest to any beneficiaries. 12c. Denied. The releases speak for themselves and were prepared by Respondent's counsel. Any suggestion that the NCFCU account was an asset of the estate was made only for convenience and simplicity. At the time the releases were prepared, Respondent had already determined that he would gift his interest in the joint account to the same beneficiaries named in the Testator's Will. In any event, the assets in the Testator's estate and the balance of the joint account have been distributed to the eight (8) beneficiaries as though and in the same manner as they would have been had all of said sums been included in the estate. 12d. Admitted in part and denied in part. It is admitted that the accounts for the minor children were created on March 11, 4 2003, with Respondent designated as custodian. The funds used to establish these accounts were gifts from Respondent, which he was free to make or not make, and with respect to which he was not subject to any time limitation. Respondent had no obligation to account for the funds until the accounts were established, and then only in accordance with applicable law. Any reference to separate trust accounts was not intended to be made with legal precision. 12e. Denied. Respondent has never attempted to conceal anything or to avoid any accounting. The monies in the joint account were in fact Respondent's, and he was so advised by counsel and by a representative of NCFCU. Respondent's claim that the said monies were his was neither new nor conflicting. Respondent did not disclaim his interest in the joint account. Petitioner Cynthia Heiney did not demand "an accounting of the children's funds" on October 6 or November 18, 2002. Petitioner Clifford Heiney was not legally entitled to an accounting of the children's funds. Respondent provided Petitioners and the other beneficiaries of the estate with an informal account on October 24, 2002. The allegations of this paragraph are scandalous and unfounded. 13. Denied. It is denied that Respondent ever attempted to avoid an accounting. An informal accounting of the estate was provided to the beneficiaries on or about October 24, 2002. The joint account became Respondent's property upon Testator's death, and he in fact has gifted 7/8 of the funds in the joint account. 14. Denied, on the basis that any requests speak for themselves. Moreover, Respondent had no obligation to provide an accounting until the accounts were established, and then only in accordance with applicable law. Any demands for an accounting speak for themselves. No demand was made by a person entitled by law to receive it. 15. Denied. It is denied that there has been any mismanagement by Respondent of any funds belonging to the children. Respondent has provided an accounting of the estate to all beneficiaries, and no beneficiary has requested that the Respondent file a formal account with the Court. It is denied that there has been any deception on the part of Respondent. The accounts created by the Respondent under the Uniform Transfers to Minors Act were gifts from Respondent to the minor children, which Respondent was free to make at any time. Respondent has never mismanaged any funds belonging to the children. The allegations of paragraph 15 are scandalous and impertinent. 16. Denied. It is denied that Respondent in any way acted inconsistently with Testator's Will. It is further denied that Respondent engaged in self-dealing or attempted to use anyone else's funds to satisfy any loan. It is denied that he attempted to convert any funds belonging to others to himself. On the contrary, Respondent administered the estate properly and in accordance with law. There was no commingling of any funds belonging to the children. These averments are scandalous and impertinent. 17. Denied. The averments of paragraph 17 are redundant, and for the reasons already stated, are denied. 18. Denied. It is denied that the children have no recourse but to learn the true disposition and investment of their monies through these proceedings and replace Respondent as custodian of their accounts. Respondent has provided complete information with respect to the accounts in response to the request for production of documents. Any funds to which the children were entitled under the estate were properly and accurately accounted for by Respondent. Neither Petitioners nor any other beneficiary of the estate has filed any proceedings in the estate to compel a formal accounting or otherwise. If Respondent had disclaimed his interest in the joint account, it would have been included in the estate, and the children's share thereof would have been distributed to Respondent as trustee under the Testator's Will. 19. It is denied that Respondent has failed to respond to any request for relevant information. 19a. Respondent has provided a complete answer to Interrogatories 2 through 7. The information requested in Interrogatories 8 and 9 is irrelevant and could not lead to the discovery of relevant information. It is denied that Respondent has been self-dealing, has conflicts of interest, and should be removed as custodian. On the contrary, Respondent has properly accounted for all assets of the estate, and has provided gifts for the benefit of the minor children, thereby in effect distributing the proceeds of the joint account as though they were not Respondent's funds, but assets of the estate. 19b. Denied. Respondent has provided a complete answer to Interrogatories 3 and 5. If the proceeds of the joint account were in fact property of the estate, the children's interest would then have been payable to Respondent as trustee for the children under the Testator's Will. 19c. The information requested in Interrogatories 8 and 9 is irrelevant and will not lead to the discovery of relevant information. As a matter of law, the proceeds in the joint account became Respondent's property upon the death of Clayton L. Heiney. There was no joint account after January, 2002. The information requested in Interrogatories 8 and 9 could potentially become relevant only if the Court would first determine that the joint account did not become Respondent's property upon Clayton L. Heiney's death. In that event, then the children's share of the estate would have been distributed to Respondent as trustee under the Will. 19d. Respondent has fully responded to Interrogatory 10 and to Request for Production 4. The allegations are scandalous and impertinent. 19e. Respondent has produced the account statement for December 2001, which was used in the preparation of the inheritance tax return. There were no account statements for the months of November and December of 2002 and March and April of 2003. 8 Respondent cannot possibly provide documents which have never existed. The funds in the children's accounts were gifts by Respondent effective the date the accounts were created. Those funds did not belong to the children prior to March 11, 2003. 19f. There is no Request for Production #12. Whether or not the funds in the joint account were assets of the estate is a question of law. As indicated in previous answers, Respondent never disclaimed his interest in the joint account. If Petitioners were referring to Interrogatory #12, Respondent provided a full and complete answer. 19g. Respondent has fully responded to Request for Production #5. He cannot produce documents which have never existed. In any event, he has not engaged in self-dealing or conflict of interest. The answer to paragraph 19(e) above is incorporated herein by reference. 20. Denied. The averments of paragraph 20 are scandalous and impertinent and are denied for the reasons set forth in previous answers. It is denied that Respondent has engaged in any self- dealing, or that he has failed to carry out his fiduciary duties, or that he has failed to carry out the testamentary instructions of the Testator, and it is further denied that Petitioners believe that he has done so. No beneficiary of the estate has filed any proceedings challenging Respondent's actions as executor of the estate. 9 21. Denied. It is denied that Respondent misused any of the children's monies, either as collateral for a loan or otherwise. These accusations are scandalous and unfounded, and completely inconsistent with Respondent's actions in making gifts to the children. 22. Denied. There is no basis in law to require the Respondent to account for funds which belong to him up until the date he created, by gift, accounts for the benefit of the minor children. To the extent the Petitioners may be alleging that the Respondent failed to properly administer the estate, the instant proceedings are inappropriate for that purpose. 23. Denied. Respondent has provided all requested documents which exist. Morever, Respondent has properly responded to all interrogatories requesting relevant information. WHEREFORE, Respondent respectfully requests that the Petition be dismissed because complete answers have already been provided, and because information not previously requested is demanded in the prayer for relief. Respectfully submitted, CLECKNER AND FEAREN Dennis J. Shatto, Esquire PA Attorney ID #25675 119 Locust Street P. O. Box 11847 Harrisburg, PA 17108-1847 (717) 238-1731 Attorneys for Respondent VERIFICATION I verify that the statements made in the foregoing document are true and correct to the best of my knowledge, 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. CHARLES L. ~E CERTIFICATE OF SERVICE I, DENNIS J. SHATTO, hereby certify that I served a true and correct copy of the foregoing document upon the person(s) indicated below, by depositing same in the United States mail, postage prepaid at Harrisburg, Dauphin County, Pennsylvania, this ~th day of November, 2003. William E. Miller, Jr., Esquire MILLER & ASSOCIATES, P.C. 1822 Market Street Camp Hill, PA 17011 Frederick I. Huganir, Esquire HUGANIR LAW OFFICES 1822 Market Street Camp Hill, PA 17011 CLECKNER AND FEAREN Denr~-~ G Sfiatto, 8squ±re/ ~ ~ttorne¥ ID #25675 119 Locust Street P.O. Box 11847 Harrisburg, PA 17108-1847 (717) 238-1731 12 IN RE: ESTATES OF : JORDAN A. MILLER, : NICHOLAS A. MILLER, : and HALEY A. MILLER, : Minors : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION NO. 21-03-250 ORPHANS' COURT ORDER OF COURT AND NOW, this 8th day of January, 2004, upon consideration of Petitioners' Motion To Compel Answers to Interrogatories and Production of Documents and Respondent's Reply to Motion To Compel Answers to Interrogatories and Production of Documents, a discovery conference/hearing is scheduled for Wednesday, February 25, 2004, at 1:30 p.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. William E. Miller, Jr., Esq. MILLER & ASSOCIATES, P.C. Frederick I. Huganir, Esq. HUGANIR LAW OFFICES 1822 Market Street Camp Hill, PA 17011 Attorneys for Petitioners D~Hennis J. Shatto, Esq. 119 Locust Street P.O. Box 11847 arrisburg, PA 17108-1847 ttorney for Respondent :rc BY THE COURT, J~esle~y O0~le r~O4' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION NO. 21- 03- 250 IN RE: ESTATE OF JORDAN A. MILLER, NICHOLAS A. MILLER and HALEY A. MILLER, Minors SUR: PETITIONER'S MOTION TO COMPEL ANSWERS TO INTERROGATORIES AND PRODUCTION OF DOCUMENTS MEMORANDUM OF LAW Your Petitioner, Cynthia L. Heiney, is the parent and natural guardian of the minor children Jordan A. Miller, Nicholas A. Miller and Haley A. Miller. Petitioners Clifford L. Heiney and Cynthia L. Heiney, and Respondent Charles L. Heiney, are adult siblings. The factual and procedural background is provided in the Motion to Compel filed herein. A review of the Reply to that Motion indicates that the Respondent tries to obfuscate the matter by (1) attempting to cleave a dichotomy between the Respondent's misconduct as a fiduciary of these (same) assets before the establishment of these Uniform Transfers to Minors Act ("UTMA") accounts and his conduct since, and (2) ignores the fact that he appointed himself the custodian of these very same assets, which are the subject of considerable dispute between the heirs. It is the position of the Petitioners that Respondent's creation of these UTMA accounts into which he poured the disputed legacies was part and parcel of Charles Heiney's ongoing effort to evade being held to account for his malfeasance and self- dealing while personal representative for the Estate of Clayton L. Heiney, Jr., the father of the Petitioners and Respondent. When pressed for an accounting, the Respondent at first denied the existence of assets to which the minor children were entitled, but as legal remedies were being sought, he suddenly "gifted" sums purportedly from himself to his three estranged niece and nephews. But the minors' property remained right where it has been since the death of the Clayton Heiney, to wit: in the control of the Respondent. It is submitted these UTMA "gifts" are, in themselves, sham transactions designed to deflect the court's inquiry into misconduct, self-dealing and conflicts of interest. Therefore, it flows from this legitimate enquiry that the discovery requests are relevant. The Petitioners have averred, and intend to prove, that the Respondent dissipated the minor's assets by using them for his own purposes, particularly through a scheme whereby he claimed outright ownership of certain of the Testator's deposits in a joint bank account with the Respondent. The account was established strictly for security for Respondent's bank loan, but upon the Testator's death, the Respondent treated the funds as his own, thereby denying the minor children of their legacies. 1 As the Petitioners sought relief on behalf of the minors within the context of the Estate, the Respondent denied there were any assets to fund the minors' legacies, but as the Petitioners' pursued relief to compel the Respondent to account for the monies and stop his self-dealing, UTMA gifts purportedly from the Respondent into the custody of the Respondent suddenly appeared. It is submitted this is a transparent scheme to somehow alleviate Charles Heiney from the consequences of his self-dealing while enabling him to continue his access to and control of the minors' property, long after the affairs of the Estate are wound up. ~ Had the Testator wanted the deposits to be a gift inter vivos to Charles Heiney, what was the purpose of the loan? Discussion: The discovery requests are reasonable and directed towards the facts pleaded in their Petition, and therefore the discovery is relevant to this enquiry. The Respondent essentially replies that the conduct averred in the complaint did not happen, or in the alternative, it is not relevant because it took place before the UTMA gifts, and therefore he will not honor those discovery requests. The Respondent's claim that he is entitled to refuse discovery on the premise that what is averred by well-pleaded facts never happened is clearly without merit. The Respondent argues that his conduct during his administration of the estate is irrelevant to whether he should be removed as custodian of the minor's property. Like the forgoing claim this also lacks merit. It has been law in Pennsylvania that where the same person holds two fiduciary capacities, both executor and trustee for example, "evidence of his misconduct as executor is admissible in a suit to remove him as trustee." In re Croessant's Estate, 393 A.2d 443,446-447 (Pa. 1978), citing lI Scott on Trusts, s 107, at 841-42 (3rd ed. 1967). "It is not essential that acts complained of shall have been done in the trust where removal is sought." Rentschler's Estate, 139 A.2d 910, 916 (1958). In Croessant's Estate, the Pennsylvania Supreme Court ruled that evidence of the fiduciary's prior misfeasance as executrix was relevant and admissible in its enquiry whether she should be removed as a trustee.2 Likewise, the Court in Rentschler's Estate ruled that the supported allegations of dishonesty on a criminal level (notwithstanding the lack of conviction) and hostility are sufficient to warrant removal as a fiduciary. 2 Unlike the malfeasance averred here, the fiduciary in Croessant's Estate, was suffering a prolonged illness. The court allowed her to remain as trustee based upon uncontroverted evidence of her recovery. Id. The Petitioners submit that chances are slim to none for the Respondent's recovery from the self- dealing and conflict of interest averred in their Petition. It must be noted that the hostility between the parties wholly prevents communication between them in order to carry out the purposes of the UTMA. The mother of the minor children cannot discuss with any candor the needs of the children and the proper disposition of the children's property, which now lies within the control of the Respondent. Such hostility between a fiduciary and beneficiary may be so severe as to justify relief by removal in order that the proper administration of entrusted assets not be jeopardized. In re Croessant's Estate, supra. The Supreme Court has cited ample authority for this premise, quoting In Re Hodgson's Estate, 20 A.2d 294 (Pa. 1941) and in turn, Marsden's Estate, 131 A. 46 (Pa. 1895), where it had held that "...the power of the court to remove a trustee 'is not dependent upon the misconduct of the trustee sought to be superseded; and it is enough to show that his retention, by the existence of hostile relations between him and the cestui que trust, would materially work disadvantage, inconvenience, and great discomfort to the latter." In Re Hodgson's Estate, supra., at 301, Marsden's Estate, supra., at 47. Conclusion: Therefore, the well-pleaded facts of self-dealing and conflict of interest, inter alia, adequately justify the discovery requests. The Court should reject the Respondent's justifications for refusing to comply with relevant discovery requests on the basis that the alleged conduct never happened, or that the conduct occurred before the UTMA transfers from the Respondent to himself, or that the Respondent will perform his fiduciary role in a meritorious fashion notwithstanding the withering hostility between the parties. The Respondent should be compelled to comply with the requests subject to sanctions provided by the Rule 4019 of the Pennsylvania Rules of Civil Procedure. iAubmitted' W~ OFFICF~q ~,r~derick I. Hug~an/j~f, ~s~ ~ IN RE: ESTATES OF JORDAN A. MILLER, NICHOLAS A. MILLER, and HALEY A. MILLER, MINORS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION NO. 21-2003-250 ORPHANS' COURT ORDER OF COURT AND NOW, this 3rd day of March, 2004, upon consideration of Petitioners' Motion To Compel Answers to Interrogatories and Production of Documents and of Respondent's Reply to Motion To Compel Answers to Interrogatories and Production of Documents, and following a conference in chambers of the undersigned judge in which Petitioners, Cynthia L. Heiney and Clifford L. Heiney, were represented by Frederick I. Huganir, Esquire, and in which Respondent Charles L. Heiney, was represented by Dennis J. Shatto, Esquire, it is ordered and directed as follows: 1. Within 30 days of today's date, Respondent shall supply, in the customary verified form, copies of NCFCU account No. 075057 bank statements from 1998 until the termination of the account, a statement detailing the disposition of proceeds of the said account when it was closed to the ultimate recipients of the proceeds, copies of loan documents respecting any loan secured by the aforesaid account or its proceeds, and a copy of the payment record with respect to any such loan; 2. Reasonable costs incurred by Respondent with respect to the direction in paragraph 1 shall be paid by Petitioners within 30 days of the submission of an itemized bill relating thereto by Respondent. 3. No other relief is provided at this time. By the Court, Frederick I. Huganir, 1822 Market Street Camp Hill, PA 17011 For Petitioners Cynthia L. Heiney and Clifford L. Heiney Dennis J. Shatto, Esquire 119 Locsut Street Harrisburg, PA 17108-1847 For Respondent Charles L. Heiney pcb IN RE: ESTATES OF : JORDAN A. MILLER, : NICHOLAS A. MILLER, : and HALEY A. MILLER, : Minors : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION NO. 21-03-250 ORPHANS' COURT IN RE: MOTION TO COMPEL ANSWERS TO INTERROGATORIES AND PRODUCTION OF DOCUMENTS AND RESPONDENT'S REPLY TO MOTION TO COMPEL ORDER OF COURT AND NOW, this 11th day of February, 2004, due to a conflict in the Court's schedule, the discovery conference/hearing previously scheduled in the above matter for February 25, 2004, is rescheduled to Wednesday, March 3, 2004, at 10:30 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, ~" William E. Miller, Jr., Esq. rq MILLER & ASSOCIATES, P.C. r~ Frederick I. Huganir, Esq. ~:~. HUGANIR LAW OFFICES ~: ~ 1822 Market Street ~e'..._~ Camp Hill, PA 17011 Attorneys for Petitioners ,q Dennis J. Shatto, Esq. ~ & 119 Locust Street ~ ~, P.O. Box 11847 Harrisburg, PA 17108-1847 Attorney for Respondent --...:.r c