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HomeMy WebLinkAbout11-6859CLAYTON E. HOKE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2011-6859 CIVIL TERM C ? JACK A. HOKE, CIVIL ACTION-EQUITY am nn zrn rn Defendant s -° - M C O r d Q = S? PRAECIPE FOR LIS PENDENS z :Z F3 TO THE PROTHONOTARY: w Please index the above action as a Lis Pendens against the following real property: ALL THAT CERTAIN tract of land situate in South Middleton Township, Cumberland County, Pennsylvania, bounded and described as follows: BEGINNING at a point on the northern side of Creamery Road on the dividing line between Lots No. 1 and 2 on the hereinafter mentioned Plan of Lots; thence by said dividing line, North 4 degrees 29 minutes 20 seconds West, 150.00 feet to a point; thence by land now or formerly of Edgar Spatz, North 85 degrees 30 minutes 40 seconds East 127.29 feet to a iron pin; thence South 11 degrees 17 minutes 10 seconds East 36.00 feet to a point on the Western side of L.R. 21020; thence by the western side of L.R. 21020, by a curve to the left having a radius of 263.75 feet an arc distance of 115.75 feet to a point on the northern side of Creamery Road; thence by the northern side of Creamery Road, South 85 degrees 30 minutes 40 seconds West 120.00 feet to the place of BEGINNING. BEING Lot No. 1 in Section "C" on the Plan of Lots known as Plan No. 2 of Countryside Acres as recorded in the Office of the Recorder of Deeds for Cumberland County, Pennsylvania, in Plan Book 19, Page 63 EXCEPTING AND RESERVING THEREFROM, however, to the Grantor the full use, income and possession of the described property for and during Grantor's natural life. BEING the same premises which Ronald E. Weibley and Sandra L. Weibley, by deed dated March 6, 2011, and recorded in the Recorder of Deeds Office in and for Cumberland County, Pennsylvania, in Deed Book N 35, page 1052, granted and conveyed unto Clayton E. Hoke and Lorraine H. Hoke. Lorraine H. Hoke departed this life, thereby vesting complete title under operation of law to Clayton E. Hoke, Grantor herein. ?04-1919') 01 aW1-71 I hereby certify that this action affects the title to or other interest in the above- described real property. Respectfully submitted, BARIC SCHERER LLC 4&- A1111- Michael A. Scherer, Esquire I.D. 61974 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 Attorney for Plaintiff SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson 1=11 EU-1J FX Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor ?t '` rd 2011 SEP 14 PM 3* 14 UPE ? NNSYLVANI A Clayton E. Hoke vs. Jack A Hoke Case Number 2011-6859 SHERIFF'S RETURN OF SERVICE 09/07/2011 03:30 PM - Dennis Fry, Deputy Sheriff, who being duly sworn according to law, states that on September 7, 2011 at 1530 hours, he served a true copy of the within Complaint in Equity and Praecipe for Lis Pendens, upon the within named defendant, to wit: Jack A. Hoke, by making known unto himself personally, at 20 Creamery Road, Boiling Springs, Cumberland County, Pennsylvania 17007 its contents and at the same time handing to him personally the said true and correct copy of the same. SHERIFF COST: $34.44 September 08, 2011 DENNI RY, DEPUTY SO ANSWERS, RON R ANDERSON, SHERIFF C� PRAECIPE FOR LISTING CASE FOR NON JURY TRIAL o� w _t (Must be be typewritten and submitted in triplicate) z -V rn"' TO THE PROTHONOTARY OF CUMBERLAND COUNTY r-Q N d a Please list the following case for a TRIAL WITHOUT A JURY. _ZC �?---------------------------------------------------------------------------------------------------- QW------ z•--- °II CAPTION OF CASE < w jentire caption must be stated in full] (check one) ❑Civil Action-Law ❑Appeal from arbitration ® Civil Action-Equity (other) CLAYTON E. HOKE, (Plaintiff) No. 11-6859 Civil Term VS. JACK A. HOKE, (Defendant) VS. Indicate the attorney who will try case for the party who files this praecipe: Michael A. Scherer, Esquire Indicate trial counsel for other parties if known: Alina M. Dusharm, Esquire This case is ready for trial. Signed: Print Name: MVMIael A. Scherer, Esquire - Date: March 21 , 2013 Attorneyfor: Plaintiff �q�?sf� o lg�� l� a�$I Loo CLAYTON E. HOKE Plaintiff V. IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT JACK A. HOKE, Defendant 2011-06859 CIVIL TERM IN RE: NON-JURY TRIAL ORDER OF COURT AND NOW, this 23rd day April 2013, the non-jury trial being assigned to this court, prior to setting an actual trial date the parties are DIRECTED to file a pretrial memorandum with the Court on or before 23 May 2013 in the following format: i. A concise statement of factual issues to be decided at trial. ii. A list of witnesses the party intends to call at trial along with a concise statement of their anticipated testimony. iii. A list of all exhibits each party anticipates presenting at trial. iv. A statement of any legal issues each party anticipates being raised at trial along with copies of any cases which may be relevant to resolution of the stated issue. V. An estimate of the anticipated time needed for the party to present its case. Upon receipt and review of these memorandums, the court will set a trial date for t4 BY TH kURTY � ,<„ CD cn C=. Thomas A. Placey C.P.J. �-; ;'LLJ CL. Distribution: Michael A. Scherer, Esq. Alina M. Dusharm, Esq. e a CLAYTON E. HOKE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA C? c V. The Honorable Thomas A. Placey c= _ NO. 11-6859 Civil --azc MUD JACK A. HOKE, t ' Defendant CIVIL ACTION-EQUITY �" + f—;z , •CCD 'C-7 x MOTION TO DISMISS AND DISQUALIFY --< , AND NOW comes Defendant, Jack A. Hoke,by and through his counsel, Alina M. Dusharm, Esq., and the firm Stone, Duncan, &Linsenbach, P.C.,and files this Motion to Dismiss and Disqualify and avers as follows: 1. In August 2008,Jack Hoke moved in with his father, Clayton, at his home at 20 Creamery Road, Boiling Springs,PA to help take care of Clayton in his old age as his condition deteriorated. 2. On June 16,2009,Attorney Michael Scherer prepared a Power of Attorney for Jack Hoke to be an agent of Clayton Hoke. (See attached Exhibit"A"). 3. It is believed that Jack's Power of Attorney is currently still valid. 4. When executing the POA in 2009,Attorney Scherer advised Jack of his responsibilities as a POA at that time. 5. Over the next several years,Jack lived with Clayton in his home,taking care of his needs and doing repairs on the house. 6. During this time,Jack's sisters, Susan Hoke,Jane Hoke,and Harriet Reed, did very little to help Jack take care of their father. n 7. Because of this, Jack enlisted the help of a hospice service to take care of his father when he couldn't. 8. At some point, Clayton spoke to a hospice nurse about wanting to see an attorney, and the nurse recommended Attorney Craig Hatch. 9. On April 20, 2011, after meeting individually with Attorney Hatch to discuss his intent to transfer his home, Clayton executed a deed conveying 20 Creamery Road to Jack. 10. Harriet and Jane then approached Attorney Scherer about drafting additional Powers of Attorney for Clayton,this time making Harriet and Jane the agents. 11. On July 20,2011, only three months after the deed transfer, Attorney Scherer, Harriet, and Jane had Clayton execute new Powers of Attorney on their behalf. 12. By August 24,2011, Attorney Scherer had drafted a Complaint in this matter and had Harriet and Jane sign the verifications to bring this action against Jack. 13. The Complaint was filed on August 31,2011, alleging undue influence over Clayton as a result of Clayton's reliance and dependence for activities of daily living. 14. Though the Complaint was filed on behalf of Clayton, Attorney Scherer admitted in his deposition that he never discussed the claims with Clayton. (See.attached"Exhibit B"). 15. When Attorney Scherer was asked why he had Harriet and Jane sign the verifications rather than Clayton, Attorney Scherer responded, "I was concerned that if I went over [the facts contained in the Complaint] with Clayton,he might have just signed anything I put under his nose." 16. On September 27, 2011, in an email to Defendant's previous attorney, Hubert Gilroy, Attorney Scherer admitted, "I do not know if Clayton is competent at this point. He was certainly affected by his advanced age when he was brought here by his sisters this summer." (See attached Exhibit"C"). 17. Later, Attorney Scherer, Harriet, and Jane hired an expert, Dr. John Hume to evaluate Clayton's competency. 18. Dr. Hume interviewed Clayton, and in a report dated November 10, 2011, gave his opinions and a short review of the answers Clayton gave during his interview. (See attached Exhibit"D"). 19. At one point, Clayton stated, "There is a controversy with Jack and the sisters, and I don't like that at all. Sisters and brothers should get along with one another." 20. When asked by Dr. Hume what he might have for three wishes, Clayton said, "The most important would be that my sons and daughters all get along better. That's the most important thing, if they just take care of that." 21. Plaintiff's Complaint should be dismissed because it has been improperly verified. 22. Plaintiff's Complaint should be dismissed because of misuse of Plaintiff's powers of attorney to commence this action on his behalf. 23. Clayton Hoke's clearly stated interest is that he wants his sons and daughters to get along, and not to pursue litigation against each other. 24. The Complaint was not signed by a party to the Complaint; in fact,the Plaintiff was not even made aware that a Complaint was brought in his name. 25. Pursuant to 20 Pa.C.S.A. § 5601, Clayton's daughters, Harriet and Jane,have breached their duties under the Power of Attorney. ! Y 26. Further, if Clayton was unable to sign the verifications of the Complaint because Attorney Scherer believed he was incompetent, then the Powers of Attorney, which were signed only one month before the Complaint, should not have been executed, and are also invalid. 27. Plaintiff's attorney is arguing that Clayton lacked the capacity to transfer the deed to Jack by his own decision, and therefore the deed is invalid. At the same time, Plaintiff's counsel had Clayton sign new Powers of Attorneys and filed this action for Jack's sisters. 28. Plaintiff's attorney used Clayton's name without his consent or the capability to make the decision to file the Complaint. 29. As a result, this action has been commenced with unclean hands and should be dismissed. 30. In addition, if Plaintiff's counsel believes that Plaintiff is incapacitated and unable to verify the Complaint and transfer the deed in question, Plaintiff is required to appoint a guardian for the purposes of this litigation according to Pa.R.C.P. 2053.1 31. In the alternative, Plaintiff's counsel should be disqualified from acting as counsel throughout the remainder of this litigation. 32. Attorney Scherer's advice to Jack Hoke based on his POA constitutes an attorney- client relationship. 33. The matters involved in Attorney Scherer's present representation are substantially related to the subject matter of the former representation. 'Defendant would object to appointment of Clayton's daughters as guardians in this proceeding since it has been demonstrated that they are not acting according to his wishes. 34. The interests of Attorney Scherer's current representation are critically adverse to his previous representation of Jack Hoke. 35. Jack has not consented to the representation of Clayton by Attorney Scherer against his interests. 36. Attorney Scherer's continued representation of Plaintiff in this action would violate the Rule 1.9 and 1.14 of the Rules of Professional Conduct. 37. Plaintiff's Complaint should be dismissed because it was brought in violation of Attorney's Scherer's fiduciary duty to past clients. In the alternative, Attorney Scherer should be disqualified from any further representation. 38. Attorney Scherer has drafted numerous wills and powers of attorney for Clayton both before and after the deed transfer, and at those times, made conclusions based on his mental competence. 39. Because of this, Attorney Scherer is a key witness to the intent of Clayton and his mental capability to sign the wills and powers of attorney which are relevant in this case. 40. After it became apparent that Attorney Scherer was a key witness to the mental capacity of Clayton, Defendant took Attorney Scherer's deposition. 41. During his deposition, Attorney Scherer stated that Clayton Hoke originally became his client because he personally knew Clayton's daughter, Susan. 42. Attorney Scherer has a personal connection with one of the sisters of Jack Hoke, on whose behalf he has essentially filed the Complaint. 43. Disqualification is needed to insure the parties receive the fair trial which due process requires. 44. Defendant made Attorney Scherer aware of the conflicts of Attorney Scherer's continued representation in the case, and the improper commencement of this action in a letter dated March 11, 2013. (See attached Exhibit"E"). 45. After receiving this letter, and without discussing these issues with Defendant, Attorney Scherer filed a Praecipe to List the Case for Trial. 46. In doing this, Attorney Scherer is certifying that no further discovery is necessary on behalf of his client prior to trial. 47. Any further involvement of Attorney Scherer as counsel in this case is in violation of rule 3.7 of the Pennsylvania Rules of Professional Conduct. 48. Pursuant to Pa.R.C.P. 222, Attorney Scherer should be disqualified as counsel for Plaintiff for the remainder of this action, because he will be a key witness to Plaintiff's competency during trial and, as he certified, no further work is necessary for his clients in this case. WHEREFORE, Defendant, Jack A. Hoke, respectfully requests that this Honorable Court dismiss the claims against him, and in the alternative disqualify Plaintiff s counsel from representation through the remainder of this case. STONE,DUNCAN, & LINSENBACH, PC Dated: It 3 By: Alina M. Dus arm, Esquire Attorney ID # 309861 Jason B. Duncan, Esquire Attorney ID # 87946 8 North Baltimore Street Dillsburg, PA 17019 Tel. No.: (717) 432-2089 Fax No.: (717) 432-0158 EXHIBIT A * * * * NOTICE * * * * * THE PURPOSE OF THIS POWER OF ATTORNEY IS TO GIVE THE PERSON YOU DESIGNATE (YOUR "AGENT") BROAD POWERS TO HANDLE YOUR PROPERTY, WHICH MAY INCLUDE POWERS TO SELL OR OTHERWISE DISPOSE OF ANY REAL OR PERSONAL PROPERTY WITHOUT ADVANCE NOTICE TO YOU OR APPROVAL BY YOU. THIS POWER OF ATTORNEY DOES NOT IMPOSE A DUTY ON YOUR AGENT TO EXERCISE GRANTED POWERS, BUT WHEN POWERS ARE EXERCISED, YOUR AGENT MUST USE DUE CARE TO ACT FOR YOUR BENEFIT ' IN ACCORDANCE WITH THIS POWER OF ATTORNEY. YOUR AGENT MAY EXERCISE THE POWERS GIVEN HERE THROUGHOUT YOUR LIFETIME, EVEN AFTER YOU BECOME INCAPACITATED, UNLESS YOU EXPRESSLY LIMIT THE DURATION OF THESE POWERS OR YOU REVOKE THESE POWERS OR A COURT ACTING ON YOUR BEHALF TERMINATES YOUR AGENT'S AUTHORITY. YOUR AGENT MUST KEEP YOUR FUNDS SEPARATE FROM YOUR AGENT'S FUNDS. A COURT MAY TAKE AWAY POWERS OF YOUR AGENT IF IT FINDS YOUR AGENT IS NOT ACTING PROPERLY. THE POWERS AND DUTIES OF AN AGENT UNDER A POWER OF ATTORNEY ARE EXPLAINED MORE FULLY IN 20 PA.C.S. CH. 56. IF THERE IS ANYTHING ABOUT THIS FORM THAT YOU DO NOT UNDERSTAND, YOU SHOULD ASK A LAWYER OF YOUR OWN CHOOSING TO EXPLAIN IT TO YOU. I HAVE READ OR HAD EXPLAINED TO ME THIS NOTICE AND I UNDERSTAND ITS CONTENTS. layton E. 14oke, Principal Date t T (C l POWER OF ATTORNEY KNOW-ALL MEN BY THESE PRESENTS, that 1, Clayton E. Hoke, of Cumberland County, have made, constituted and appointed, and by these presents, do make, constitute and appoint my son, Jack A. Hoke of Cumberland County, my true and lawful agent for me, and in my name and on my behalf generally to do and perform all matters and things, transact all business, make, execute and acknowledge all contracts, orders, deeds, writings, assurances and instruments which may be requisite or proper to effectuate any matter or thing appertaining or belonging to me, with the same powers, and to all intents and purposes with the same validity as I could, if personally present; hereby ratifying and confirming whatsoever my said agent shall and may do, by virtue hereof. In addition, my agent shall have the following powers as set forth in 20 Pa C.S.A. Section 5603: A) Power to make limited gifts. My agent shall be limited to making gifts to persons in an amount no greater than the amount permitted on an annual basis by the IRS, currently $10,000.00 per individual, so as not to impact on my unified gift and estate tax credit. B) Power to create a trust. C) Power to make additions to an existing trust. D) Power to claim an elective share. 'E) Power to disclaim any interest in property. F) Power to renounce fiduciary position. G) Power to withdraw and receive. H) Power to authorize admission.to medical facility and power to authorize - medical procedures. 1) Power to authorize medical and surgical procedures. J) Power to engage in real property transactions. K) Power to engage in tangible personal property transactions. L) Power to engage in stock, bond and other securities transactions. M) Power to engage in commodity and option transactions. N) Power to engage in banking and financial transactions. O) Power to borrow money. P) Power to enter safe deposit boxes. Q) Power to engage in insurance transactions. R) Power to engage in retirement plan transactions. S) Power to handle interests in estates and trusts. T) Power to pursue claims and litigation. U) Power to receive government benefits. V) Power to pursue tax matter. Said powers as set.forth in the statute are incorporated herein by reference. BEING mindful that my affairs be properly managed notwithstanding any future . disability, this Power of Attorney shall not be affected by my disability. In the event of my disability, my said agent shall have all of the powers as set forth above. - I IN WITNESS WHEREOF, I, the above-na ed principal have hereunto set my hand and seal this l day of , 2009. WITNESS: Aj 7 r wcs- SEAL G layton E. Hoke, Principal COMMONWEALTH OF PENNSYLVANIA SS. COUNTY OF CUMBERLAND On this, the l day of 2009, before me, the undersigned I officer, personally appeared Clayton . Hoke, known to me to be the person whose name is subscribed to the within instrument and acknowledged that he signed same for the purposes therein stated. IN WITNESS WHEREOF, I have hereunto set my hand and official seal. No obi COMMONWFALT"Olx PEpMYLVANIA Notarial Seal Jennifer S.undsay,Notary PUMIC cadlsle 13m o,Girnbedand county My Commisslcn E),film Nov.29,2011 Member,P vans prsoclatlon of Notarles AGENT ACKNOWLEDGMENT I, Jack A. Hoke, have read the attached power of attorney and am the person identified as the agent for the principal. I hereby acknowledge that in the absence of a specific provision to the contrary in the Power of Attorney or in 20 Pa.C.S. when I act as agent: I shall exercise the powers for the benefit of the principal. I shall keep the assets of the principal separate from my assets. I shall exercise reasonable caution and prudence. I shall keep a full and accurate record of all actions, receipts and disbursements on behalf of the principal. IN WITNESS WHEREOF, I t e above-named agent have hereunto set my hand and seal this �(0`�`!'1 day of 2009. WITNESS: Z (SEAL) Jack A. Hoke,Agent COMMONWEALTH OF PENNSYLVANIA SS. COUNTY OF CUMBERLAND On this, the /U"day of , 2009, before me, the undersigned officer, personally appear 9d Jack A. Hoke, known to me to be the person whose name is subscribed to the within instrument and acknowledged that he signed same for the purposes therein stated. f IN WITNESS WHEREOF, I have hereunto set my hand and official seal. r i coMMONWEALTH Uf PENNSYLVANIA Notarial Seal NO U IC i Jennifer S.undsay,Notary PwIr- II Carlisle 9oro,Cumbedand County My Comrrdssion EVIres Nov.29,2011 Member,Pennsylvania Association of Notaries 1 1 i a EXHIBIT B IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CLAYTON E . HOKE, Plaintiff vs . No . 11-6859 Civil JACK A. HOKE, Defendant Civil Action - Equity - - - - - - - - - - - - - - -/ Deposition of : MICHAEL A. SCHERER, ESQ. Taken by Defendant Date March 1, 2013, 10 : 00 a .m. Place Baric Scherer, LLC 19 West South Street Carlisle, Pennsylvania Reporter Susan L . Henderson Registered Professional Reporter Notary Public APPEARANCES : STONE, DUNCAN & LINSENBACH, P . C . By: JASON B . DUNCAN, ESQ. ALINA DUSHARM, ESQ. Appearing on behalf of the Defendant CERTIFIED COPY Henderson Kashmere Wetmore, LLC (717 ) 214-1182 2 4 INDEX TO WITNESS 1 A No. MICHAEL SCHERER,ESQ. Examination 2 Q Did you review any documents before By Ms.Dusharm 3 3 testifying today? 4 A Yes. 5 Q What did you review? 6 A The revocation of Jack's--excuse me--of 7 Clayton's power of attorney,and his will,Clayton's INDEX TO EXHIBITS 8 will,dated August of 2011. I took a look at my Scherer Deposition Marked Identified 9 billing records and just some notes that I had Exhibit Number 10 relative to the drafting of Clayton's prior wills. 11 Q Now,you said Clayton's prior wills. How 1 E-mail string with most 11 11 12 many wills have you done for Clayton? 2011,recent dated September Kat 13 A I am not certain. I--Maybe I can best Max Hubert Gilroy to Katie 14 answer the question b saying that I had done wills Maxwell q Y Y� g 15 for Clayton and his now deceased wife,Lorraine,years 16 ago. And I'm talking maybe ten years ago. 17 Then,after Lorraine died,I know I did a new 18 will for Clayton that of course,didn't include her. 19 And then I did the one in August of 2011. I may have 20 done another one in there,but I didn't go to my 21 closed files and dig through there and try to find 22 whether or not there was actually a fourth one. 23 Q Okay. Would you be able to provide us a copy 24 of the previous wills if we served discovery requests 25 on you? 3 5 1 (Discussion held off the record and reading 1 A Yeah,are you going to make me dig through my 2 and signing was waived. 2 files? r 3 3 Q Well,I think it's important to see his past 4 MICHAEL SCHERER,ESQ., 4 intent in his wills,so I think it's relevant in this 5 called as a witness,having been duly swom, 5 case. 6 testified as follows: 6 A I can--Yes,I can do that. 7 EXAMINATION 7 Q Okay. 8 BY MS.DUSHARM: 8 A I mean,I can tell you his past intent. I 9 Q Hi,my name is Alina Dusharm,and I represent 9 don't want to jump ahead,but. 10 Jack Hoke in this case. Could you please state your 10 Q Right. I mean,if we could have the 11 name for the record? 11 documents,also,then I'm sure we'll get to that also 12 A Yes,Michael A.Scherer,S-c-h-e-r-e-r. 12 in the deposition,but. 13 Q Have you ever had your deposition taken 13 A Okay. 14 before? I assume that you've probably taken other 14 Q Okay,so you've talked about ten years ago 15 people's depositions,but have you ever had yours 15 doing a will. When did your professional relationship 16 taken? 16 with Clayton Hoke begin? 17 A I have,yes. 17 A Probably around that time. 18 Q So,you understand what a deposition is? 18 Q Did you know him personally before that time 19 A Yes. 19 or did you first meet him in a professional 20 Q And you understand that you're under oath 20 relationship? 21 today? 21 A I knew his daughter,Susan,personally and 22 A Yes. 22 professionally--but I knew her first personally, 23 Q Is there any reason why you would not be able 23 then professionally,and then she acquainted me with 24 to hear my questions,understand them,or answer them 24 her mother and father. 25 to the best of your ability today? 25 Q How did you know her personally? 2 ( Pages 2 to 5 ) Henderson Kashmere Wetmore, LLC (717 ) 214-1182 Atty. Dusharm - Witness Michael Scherer, Esq. 6 8 1 A We had worked together years ago in the 1 mental faculties at that time? r 2 restaurant business. 2 A Yeah,I think he was competent. 3 Q Which restaurant? 3 Q Did you feel like he could make his own 4 A The Embers. 4 decisions? 5 Q So,at that time,you were also doing work 5 A I felt he was competent to sign a power of 6 for Susan Hoke. Is her last name still Hoke at this 6 attorney for him. 7 time? 7 Q Was there anyone else present at the time in 8 A I believe it is,yes. 8 2007 when he gave—when he signed his power of 9 Q So,you were still doing work for Susan Hoke, 9 attorney? 10 also,legally? 10 A I don't recall. 11 A Well,I wouldn't characterize it that way. I 11 Q All right,when was the next power of 12 mean,I didn't do work for her on an ongoing basis, 12 attorney prepared? 13 but I did wills--I think I did a will or wills for 13 A That would have been 2009,the one that named 14 her,and I did some other professional things for her. 14 Jack. 15 But we didn't have--She didn't have an ongoing need 15 Q Why did he change his power of attorney at 16 for legal services. 16 that time? 17 Q Did you do any legal work for any other 17 A Because Susan moved to South Carolina. 18 family member at that time when the professional 18 Q Did you feel that he was competent to make 19 relationship first started? 19 that decision at that time? 20 A No. 20 A Yes. 21 Q Have you done any other legal work since that 21 Q Can you remember if there was anyone else 22 time for any other family members? 22 there when you met with Clayton in 2009? 23 A I don't believe so,no. 23 A I can't be sure,but I know Jack signed the 24 Q At the time--if you can remember,at the 24 agent acknowledgement. And I--I believe he and Jack 25 time that Clayton Hoke first came to you to do his 25 came into the office together. 7 9 1 will,can you characterize his mental competence or 1 Q Did you feel at that time that Jack had undue 2 mental ability at that time? 2 influence on him? 3 A Do you mean ten years ago? 3 A On Clayton? 4 Q Yes. 4 Q On Clayton. 5 A When I met with he and Lorraine? 5 A No,I didn't think that. 6 Q Yes. 6 Q Since you mentioned Jack,can you approximate 7 A They were older,but they were both living on 7 what time that you first met Jack? 8 their own. They were living together,but on their 8 A It may well have been at that--that meeting 9 own without assistance,and their mental faculties 9 or series of meetings. I don't know if I would have 10 seemed fine. 10 met Clayton once when he switched the power of 11 Q Do you remember preparing a power of attorney 11 attorney from Susan to Jack or if it would have been 12 for Clayton Hoke? 12 twice,but I believe that was the first I had become 13 A Yes. 13 acquainted with him personally. 14 Q How many did you prepare for him? 14 Q Then you also prepared a power of attorney in .15 A I know I prepared two. 15 2011. Is that correct? 16 Q Do you remember your first power of attorney 16 A Yes. 17 that you prepared for him? 17 Q And that went back to--was it Susan? 18 A Yes. 18 A Jane and Harriet. 19 Q When was that? 19 Q It went to Jane and Harriet. Did you notice 20 A That one was dated June 8th of 2007. 20 any physical or mental changes in Clayton Hoke from 21 Q Do you know who he gave his power of attorney 21 the time that you—from 2009 until 2011? 22 to? 22 A That's hard to say. He was older,obviously. 23 A His daughter,Susan. 23 We all were older. But,you know,I didn't do 24 Q At the time that you prepared that power of 24 cognitive testing on him. I wasn't around him on a 25 attorney,the 2007 one,can you characterize his 25 daily basis. So,it would be hard for me to say 3 (Pages 6 to 9) Henderson Kashmere Wetmore, LLC (717 ) 214-1182 Atty. Dusharm - Witness Michael Scherer, Esq. 10 12 1 specifically. 1 e-mail from Hubert to me and then from me to Hubert 2 Q What was Clayton Hoke's reasoning for why he 2 Gilroy. j 3 wanted to change his power of attorney back to Jane-- 3 Q Do you remember sending this e-mail to Hubert 4 or Jane and Harriet? 4 Gilroy? 5 A Yes,it wasn't back to them. That was the 5 A I mean,I wouldn't have remembered it a 6 first time. 6 minute ago if you would have asked me about it,but, 7 Q To them,yes. 7 having read it,I don't dispute that I sent it. 8 A Because his son,Jack,who was acting as his 8 Q And Hubert Gilbert is Jack Hoke's previous 9 power of attorney,checked himself into a drug 9 attorney? 10 rehabilitation facility,and things were kind of 10 A That's right. 11 unsettled with Clayton. He--Jack placed Clayton 11 Q Okay. I have a section highlighted from your 12 into the Country Meadows Nursing Home. And Clayton 12 e-mail to Hubert Gilroy in the first paragraph. And 13 felt like the future was uncertain with Jack and that 13 it says that you do not know if Clayton is competent 14 he wanted Harriet and Jane to help him with his 14 at this point. He was certainly affected by his 15 situation. 15 advanced age when he was brought here by his sisters 16 Q Do you know when Clayton Hoke was placed into 16 this summer,but knew each of his children,knew and 17 the Country Meadows home? 17 liked where he was staying and expressed that he 18 A It was--it was the very beginning of July 18 wanted his kids to share equally in his assets. He 19 of 2011. 19 was confused by the deed when I showed it to him. 20 Q Did you feel in 2011 when Clayton signed this 20 Does that accurately reflect your memory of 21 power of attorney that he was capable of making his 21 Clayton Hoke's state in the summer of 2011? 22 decision to change his power of attorney? 22 A Yes. 23 A Yes. 23 Q Between the time of 2009 when you prepared 24 Q Did you feel that he was under any undue 24 Clayton Hoke's power of attorney for Jack and 2011 25 influence at that time to change his power of 25 when you met him again,how much interaction did you 11 13 1 attorney? 1 have with Clayton Hoke? 2 A No. 2 A Very little,if any. 3 Q Between 2009 and 2011,did you have any 3 Q Do you know when Jack began living with 4 interactions with Jack Hoke? 4 Clayton Hoke? 5 A I think I sent a bill over to Jack at one 5 A I'm thinking it was--I better not answer, 6 point,and he jotted some notes on it and sent it 6 because I'm not certain. 7 back. I think that was it. Maybe--I don't know if 7 Q Okay. When you prepared the power of 8 there was a phone call. I don't--I don't--I'm not 8 attorney in 2011,did you contact Clayton's previous 9 clear on that. If there was any interaction,it would 9 attorney,who prepared the power of attorney in 2010? 10 have been extremely limited. 10 A I'm trying to remember how the events 11 Q So,is it fair to say that most of your 11 unfolded,but I don't even think I knew about--Are 12 interactions with Jack Hoke happened in 2009 when you 12 you talking about Mr.Hatch? 13 prepared the power of attorney for him? 13 Q Yes. 14 A Well,that was it. I mean,as far as I 14 A Yeah,I don't think I even knew about him. 15 recall,that was the first time I had met him. And it 15 Q Okay. 16 was signed. I made sure that I read the agent 16 A I mean--I thought I was Clayton Hoke's 17 acknowledgement to him,that he understood it. He 17 attorney. 18 signed it,and that was that. 18 Q Right. 19 Q I'm going to show you an e-mail. 19 A I thought if Clayton Hoke had a legal need, 20 (Scherer Deposition Exhibit No.1 produced and 20 he would have been brought here to me. 21 marked for identification.) 21 Q Did Clayton tell you that he had seen another 22 BY MS.DUSHARM: 22 attorney at that time? 23 Q Do you recognize this e-mail? 23 A He told me at one point that he had seen an 24 A I'm just reading it now. 24 attorney in Boiling Springs. 25 Yeah,this appears to be a-mails--or an 25 Q Okay. Did he explain to you why he went to 4 (Pages 10 to 13) Henderson Kashmere Wetmore, LLC (717 ) 214-1182 Atty. Dusharm - Witness Michael Scherer, Esq. 14 16 1 see that attorney? 1 the way Jack treated Clayton? 2 A He said that he thought he had given Jack 2 A At this point,I'm not going to answer any 3 half of the house. 3 more questions about the strategy of litigation and my 4 Q Okay. Was there any other reason that he 4 mental impressions and things like that. I mean,the 5 went to see that attorney? 5 notice of the deposition was intended for Clayton's 6 A Not that he expressed to me. 6 competence for the execution of those documents,and I 7 Q So,I'm just trying to nail this down. He 7 think we're getting into my mental impressions and my 8 mentioned that he had seen this attorney to 8 work product. 9 transfer--to do a deed transfer,but he didn't 9 Q Okay. Did you at the time that you filed the 10 mention anything about another power of attorney. Is 10 complaint think that Clayton was incompetent to sign 11 that what your testimony is? 11 his own verification? 12 A Yes. 12 A I was more comfortable having Jane and 13 Q Did you meet with Clayton Hoke before 13 Harriet sign the verification,because I thought they 14 bringing this case to discuss the claims against Jack 14 were more aware of the facts contained in the 15 Hoke? 15 complaint. I was concerned that if I went over them 16 A I don't believe I did,no. 16 with Clayton,he might have just signed anything I put 17 Q Who did you have sign the verification for 17 under his nose. 18 the complaint? 18 Q Okay. So,a complaint was filed in August of 19 A I don't remember. Is there a verification 19 2011,and you believe that he may have just signed 20 attached to the complaint? 20 whatever was put under his nose,but in July of 2011 21 Q Yes,I think there is. 21 when the power of attorney was signed,you believe he 22 A That appears to be Jane Hoke's signature,and 22 was competent to make that decision? 23 Harriet Reed also signed. 23 A Yes. I mean,that to me was a more 24 Q And they would have been the power of 24 straightforward proposition for him. He was happy to 25 attorney from 2011's version. Right? 25 go to a nursing home. I've met very few people his 15 17 1 1 A Right. 1 age that were happy to go from their own home,where 2 Q Why did you have Harriet and Jane sign the 2 he lived for,I don't know,20 years,to a nursing 3 verification as opposed to Clayton Hoke? 3 home,which struck me as being kind of peculiar. 4 A I simply thought they were capable of doing 4 I met with him. He was happy. He wasn't 5 it. 5 sure what was going on with Jack. I got the 6 Q Was Harriet and Jane,were they the 6 impression he wasn't comfortable with Jack. He knew 7 individuals who provided you with most of the 7 who his kids were. He knew what his kids were doing, 8 information that was contained in the complaint? 8 where they lived. He was aware that Jane and Harriet 9 A I would have to review the complaint to see 9 were willing to help him,and he wanted Jane and 10 what's in there. 10 Harriet to help him more so than he wanted help from 11 Q Would you like to? 11 Jack. 12 A Yes. 12 Jack's his son. He wasn't going to sit there 13 Okay,what was the question again,please? 13 and run Jack down. He never did,even though Jack 14 Q Were you provided with most of the 14 apparently had some problems in the past. But he 15 information in the complaint by Harriet and Susan— 15 preferred at that point to have Harriet and Jane in 16 or Harriet and Jane,I believe was the question? 16 charge,and knowing what I knew about him and knowing 17 A I wouldn't say most. I mean,it seems like 17 what I knew about Harriet and Jane,I thought that was 18 about half of it is probably factual information that 18 appropriate,and I thought he understood what he was 19 I either knew or was able to find. And the 19 doing. 20 information,obviously,about the way Jack treated 20 When it was time to file the complaint,I 21 Harriet and Jane,that came from Harriet and Jane. 21 don't think that I would have been comfortable going 22 And some of the information about Clayton's 22 over that and having him understand it as well as I 23 finances--the car,money in the bank--that came 23 think Jane and Harriet understood it,and I thought it 24 from information that Jane and Harriet had uncovered. 24 was more appropriate for them to verify it. 25 Q Who provided you with the information about 25 As far as Hubert's e-mail goes,as far as 5 (Pages 14 to 17 ) Henderson Kashmere Wetmore, LLC (717 ) 214-1182 Atty. Dusharm - Witness Michael Scherer, Esq. 18 20 1 competence goes,I don't know,you know. At that COMMONWEALTH OF PENNSYLVANIA: 2 point in time,Hubert's question was,is he competent, COUNTY OF CUMBERLAND 3 legally competent? I don't know if he's legally I,Susan L.Henderson,Reporter and Notary Public in and for the Commonwealth of Pennsylvania and 4 competent. I didn't do testing on him. I haven't County of Cumberland,do hereby certify that the foregoing deposition was taken before me at the time 5 asked anybody to do testing on him. I'm not a doctor. and place hereinbefore set forth,and that it is the 6 What I did I thought was appropriate based on testimony of 7 having known him and presented with the situation in MICHAEL SCHERER,ESQ. 8 front of me where Jack is now in rehab,he's allegedly I finther certify that said witness was by me 9 trying to manage his father's affairs,and apparently duly sworn to testify the whole and complete truth in said cause;that the testimony then given was reported 10 he had left checks for somebody else that were already by me stenographically,and subsequently transcribed under my direction and supervision;and that the 11 signed that could be negotiated. And there were just foregoing is a full,true and correct transcript of my 12 other things that just didn't seem as ideal as they original shorthand notes. 13 could be for Clayton. And I thought that based on I fiuther certify that I am not counsel for or related to any of the parties to the foregoing 14 what Clayton told me he wanted and based on the girls cause,or employed by them or their attorneys,and am 15 being willing to do it,it was a much safer thing for not interested in the subject matter or outcome 16 Clayton to have them in charge of his affairs. thereof. 17 Q DO you know,the facility that he's at,if Dated at New Cumberland,Pennsylvania this 5th day of March,2013. 18 he's in any kind of special unit or anything like that n;t 19 or if it's just a long-term living facility? �� �iSrdy - Susan L.Henderson 2 0 A I r m not Sure. Registered Professional Reporter 21 Q You mentioned that you got the impression Notary Public 22 that Clayton wasn't comfortable with Jack. What gave The foregoing certification ofthis 23 you that impression? transcript does not apply to any reproduction of the same by any means unless under the direct control 24 A I don't really recall,to be honest with you. and/or supervision of the certifying reporter. 25 In retrospect,I've heard that he wasn't very nice to 19 1 his father,he mistreated him. And,looking back, ti 2 that could have been the reason that I felt that way, 3 but he just didn't--He wasn't appreciative of Jack 4 and all Jack had done for him,you know,like some 5 parents would be for their kids that help them out. 6 It just struck me as very strange that a guy 7 that enjoyed being in his own residence was so happy 8 in a nursing home. Just--in my experience,it's 9 just a very unusual thing. 10 Q You stated that you knew Susan personally,I 11 think,from working with her in a restaurant. Do you 12 still have a personal relationship with her or is it 13 strictly professional at this point? 14 A It's strictly professional. 15 Q Does Susan still live in South Carolina? 16 A I'm not sure,honestly. I think I had heard 17 she was thinking about moving out west. I don't know 18 if she actually did or not. 19 MS.DUSHARM: I think that's all I have. 20 Yes,that's it. 21 A Okay,good. Thank you. 22 MS.DUSHARM: Thank you. 23 (Whereupon,the deposition was concluded at 24 10:33 a.m.) 25 6 (Pages 18 to 20) Henderson Kashmere Wetmore, LLC (717 ) 214-1182 EXHIBIT C ^ � i ' Mary M. price From: Katie J.Maxwell Sent: Tuesday,September 27,20211:1.3 PM To: Mary M.Price Subject: FW: Hoke Attachments: POA 7-20-11pcif Please print emails and attachment From: Hubert X. Gilroy Sent:Tuesday,September 27, 20111:12 PM To: Katie J. Maxwell Subject: FW: Hoke Ftyi Print both for file Hubert X. Gilroy,Esquire Martson Deardorff Williams Otto Gilroy&Faller Martson Law Offices 10 East High Street Carlisle, PA 17013 (717)243-3341 ph (717)243-1807 fx hgilroy@martsonlaw.com www.martsonlaw.com CONFIDENTIALITY NOTICE:The above communication is for the personal.use of the Intended recipient(s)only.This message may be an attorney-client communication and as such privileged and confidential.if you are not an intended recipient,you may not review,preserve,copy or distribute this message. Unauthorized use,disclosure or distribution is prohibited and may be unlawful.if you are not an intended recipient,or if you believe that you have received it in error, please reply to the sender that you have received the message in error,then delete it.Thank you. From: Mike Scherer(malito:mscherer @baricscherer.com] ~ Sent:Tuesday,September 27, 20119:17 AM To: Hubert X.Gilroy " Subject: RE: Hoke Hubert: Attached is Clayton's POA. I do.not know if Clayton is competent at this point. He was certainly affected by his advanced age when he was brought here by his sisters this summer but kneweach of his children,knew(and liked) where he was staying and expressed that he wanted his kids-to share equaliy In his assets. He was confused by the deed when I showed it to him. l - Jack's sisters have cited numerous incidents where Jack was belligerent and threatening and that is why the girls stayed away. It assisted Jack in isolating Clayton and influencing Clayton to do what lack wanted. Jack does not mention that Susan took care of Clayton for years after Clayton's wife died and as far as I know got no compensation. i -' - ^ , |amnot surprised that Craig Hatch would defend his actions. \am surprised that Craig would not have asked Clayton and especially Jack if Clayton had mn attorney and why they were not using that attorney who presumably would be � aware of the history of the case. � .' ' � At this point I am gathering information but as a preliminary matter we need to establish reasonable rent for Jack to pay ' to Clayton per the deed. |believe the home ba three bedroom ranch home and itisin S.Middleton. Can you suggest � an amount? � K8icheeA^ 8chmror Esquire ` ' Badn Scherer LLC 19 West South Street Carlisle, PA 17013'8432 ` ' Phone: (717)249-6873 Fax: (7.17)24M755 It ^°°°°°°°°°°°°°"°°°ConfidanUoEleobnnicMaUMoOce ' The information contained in this message is intended only for the persons hm whom itha addressed and may contain ' confidential or privileged 0ah*dui Copying,distributing,dissemination, reliance on,or other use of the information by persons other thantheintandedn»c/pient(m)ioproh|b\hed. )f you received this message in error,please notify the sender and delete the entire message from any computer, From: Hubert X. GUom xzoml Sent:Tuesday, September 2120118:44AM � To: Hoke ' Mike ' \spoke with Jack Hoke.i also spoke with/tb/Hatch. � Jack wants to defend this.He indicates he took care of father and siblings did nothing.Hatch indicates he spoke with ~ father a althouuh]acktoohhintotheuf0me The complaint does not attach any P0Au Can you send them tn me?Also,a'eyou saying father is leooUv incompetent at this point? ' Thanks � | � Huber | - -� � r Hubert'— Gilroy,Esquire K8arbson Deardorff Williams Otto Gilroy QFaller ^� K8ortsonLaw Offices ' 10 East ' Carlisle, r*//u/3 , (717)243-33 1 ph . 2 ' t717Y243-1807 fx hgilroy@martsonlaw.com www.martsonlaw.com CONFIDENTIALITY NOTICE:The above communication is for the personal use of the intended recipient(s)only,This message may be an attorney-client communication and as such privileged and confidential. If you are not an intended recipient,you may not review, preserve,copy or distribute this message. Unauthorized use,disclosure or distribution is prohibited and may be unlawful. If you are not an intended recipient,or if you believe that you have received it in error, please reply to the sender that you have received the message in error,then delete it.Thank you. i i 1 i i i 3 EXHIBIT D T John M.Hume,M.D.,J.D. - 875 Valley Road Marysville,PA 17053-9792 717-957-2401 November 10,2011 Michael A.Scherer,Esq. 19 W. South Street Carlisle,PA 17013 RE;Clayton Hoke Dear Mr.Scherer. I saw Clayton Hoke on 1 1/2111 at the ManorCare Assisted Living section. In conjunction with the evaluation I have reviewed voluminous medical records going back a number of years,as well as bank statements from M&T Bank and Citizens Bank for the last three years. At issue is whether Clayton Hoke was subject to undue influence from his son,Jack Hoke,when he deeded his home over to his son on 4/11/11. Also at issue is whether or not he was even competent to enact such a transaction. At the time Mr.Hoke was just short of 90 years of age. When asked how long he had been at ManorCare he replied,"I don't know.I can't really tell you how long. The important thing is that I'm here and people treat me good. They bathe me two times a week. I have my pictures from my home where they were in the basement. They were taken by a friend of my wife. The basement was filled with pictures that I liked. Whether they were sold or given away,I don't know. I wasn't consulted. I had a number of baseball cards. I got autographs of Ted Williams,Lou Gehrig, and Babe Ruth. I met those gentlemen. I used to travel to New York and Washington. Babe Ruth was a little fatty. I remember meeting and talking with them. I'm not sure what positions they played. Things that became valuable included a lot of baseball cards,and I bought them all. I spent my money on things that would become valuable or that I liked." He then pointed to two small Amish benches which were in his apartment that had been collected by his wife, remarking, "Men she had to die on me." When asked when this was, he replied, "I don't know, some years ago. When she was buried up in Valley View I did a foolish thing. I bought 12 lots up there(in the cemetery). It was foolish. Some day all of us will be buried up there. It won't be easy." When asked regarding his family home,he remarked,"I asked my son to stay there. One thing you have to understand, and I don't like it at all. I have two sons and two daughters (actually three daughters). One daughter lives down by,where is it? If you drive greater than 8 hours you drive close to Jacksonville,Florida,then to Tampa,then facing Cuba across the Gulf of Mexico facing Texas. My son is at my house,which needs a couple thousand dollars' worth of work. A big picture window needs replaced. That's five or six thousand. My house is different from anyone around There's a stairway from the garage to the basement,as well as one up and down Page 2 - RE:Clayton Hoke inside. Most houses only have a single way up and down.There's wall to wall carpet. I like to sit in the garage. There's an eight foot long table where I read the newspapers. I have a refrigerator in the garage. There's hardware and fishing hooks you wouldn't believe. I hooked minnows through the lips so they wouldn't die if they fell off. I held the line in my hands so I knew where the minnow was at any time. I went to Pine Creek." When asked how to get there, he was vague in describing how that was possible. He also had trouble describing things currently, but went on at length about details of some of his earlier life experiences, carrying cornmeal from a mill and carrying it in five pound bags in a little red wagon, and getting a commission from his grandmother, but he wasn't to tell his mother he was getting money. He described doing other jobs while in school. "On graduation we went on a trip to Washington. In World War lI I was in the Navy. I was all over the Pacific on the Enterprise. If you're smart you forget about those experiences real quick." When asked what things were like before coming to his current placement he continued,"Before my first fall I had one of the neatest places in Boiling Springs. I had most of my meals three quarters of a mile to the Inn. A friend of mine owned that(but he could not remember the name of the Boiling Springs Tavern). Most of the time I went there myself. I had a car at that time. Every year I bought a new car,then the kids said they had a better brain than I did and took the car away. I don't remember what year that was. Every year I'd call the dealership in Shippensburg to bring me a new car. I bought Pontiacs. One day on a trip to Utica the car went bad in Binghamton. I called them to bring me a car and in 1 %hours there comes my car full of gas and I went on to Utica. People were pretty nice to me.I wanted the best and I got the best. I always had the same table,the best in the house changing the subject spontaneously back to his eating habits). They always help me down the stairs there. Jack drove me when I ate out. Most of the time I paid and he paid sometimes." When asked how much he would spend when eating out he remarked, "That all depended" When asked if it was ever close to $100.00 he replied, "No,no,no,no. Maybe$20.00 or$30.00."When asked how it was paid he indicated that it was with both debit and credit cards. "I always had a lot of cash. The bill was usually around $20.00." When it was pointed out that he had multiple bills,some over$100.00 for a single day eating out, he stated,"You got to remember some people are too tight to spend money. At my home I was very, very comfortable with wall to wall carpet in the garage and the basement (repeating himself). Many people wouldn't believe the collections I had.It rained and rained and I got water in the basement and some of my cards got ruined. Then the Amish came and the rug and everything was torn out and put in the garbage can." - When asked again how many children he had,he replied,"Three girls and two boys,I think"He indicated that two of his daughters live locally, one in New Cumberland and the other in Hummelstown,but when asked what they did,he stated," I don't know what they do. Jane,for example,works at Giant on the other side.I don't remember which one." He then spontaneously continued,"One time I had charge of all Army maintenance from Fairbanks,Alaska to Augusta, Maine. For 29 years I worked for the U.S. Government. You've heard of Sarah Palin? I can take you right to her house across the Christian River.I spent a lot of time in Alaska." Page 3 -- RE:Clayton Hoke When asked who takes care of his bills, he replied, "Jane takes care of that." When asked if there was a time when his son took care of it,he replied,"I can't answer that. I believe there was a time when Jack took care of that." When asked what his son's occupations or activities were, he continued, "Jack three times was stopped in traffic and rear-ended and it hurt his back. He went to the Church of Christ on 15. I _ know where that is. I went to it when I was able, then go have dinner at the Black and Blue Restaurant quite a bit" When asked specifically if his son worked, he replied, "You've got to remember his back is hurt in three places.He goes to the clinic.I guess it's a clinic. As for me, I'm very, very lucky that I don't get sick at all."When asked if he was taking any medications, he replied, "Not even an aspirin." Review of his current medications indicates that he is taking a vitamin B12 injection monthly,furosemide for edema 20 mg daily,Ievothyroxine for subthyroid function daily, pantoprazole 40 mg daily, and VesiCare 10 mg daily, the latter two being for gastrointestinal issues and prostate issues. .When asked the source of his son Jack's income, he stated, "He has,he works for, what is the name of that place in Harrisburg? Route 15. I can't think of the name. A friend of his also works there." When specifically asked he denied that his son Jack had any D&A problems, stating, "The only thing wrong with him is his back." When asked specifically if he was aware that his son had been in a substance abuse program,he commented,"His back hurts him and he goes to a clinic." When asked when he had last seen his son, he said, "I don't think yesterday. Either yesterday or the day before."When asked how he thought Jack got along with his sisters, he remarked,"I'm going to rephrase that. There is a controversy with Jack and the sisters,and I don't like that at all. Sisters and brothers should get along with one another." When asked what the controversy was about,he continued,"To the best of my understanding the husbands of the girls don't get along with Jack. The girls will be what girls are and totally in support of their husbands. They don't like Jack because he's stronger and bigger.. That's the only reason I can think of." When asked if he felt Jack had ever taken advantage of him, he remarked, "The girls think Jack has taken advantage of me, but I've been all over the world, every place you can be,and I'm still alive." When asked if there was some conflict regarding the house,he stated,"To tell the truth,if I should die the house will be sold and the money is to be divided equally between the boys and girls and there shall be no fighting. I'm a very good -- fighter. One punch and they're finished." When asked how he thought his house was titled, he replied,`°Just me." When asked what he might have for three wishes,he remarked, "I never gave that any thought. The most important would be that my sons and daughters all get along better. That's the most important thing, if they just take care of that." When asked how long his parents had lived, he continued somewhat off target by saying, "You've got to understand my dad took me to where he worked,800 feet down in a coal mine. In no time at all I had charge of all the operations at Page 4 - RE:Clayton Hoke Indiantown Gap. I quit hunting years ago. I used to be able to shoot a flying pheasant through the eyes." When asked if he had any concerns,he related, "I don't know. I have concerns. There are things I have to straighten out with my kids. I made a big, big mistake when I used to live in Spring Glen.Then I was married and started to have boys and girls. I used to have(became agitated and was ringing his hands and did not finish)." When asked where he usually does his grocery shopping he replied, "I don't know. I cut a tree down outside my door."When asked again about medications,he stated that he did not take any medicine, but remarked, "You can tell I'm very lazy by how close the T.V. is to me." When asked how he saw the future, he stated, "The first thing I have to do is stay alive. I have to be careful how much heat I have on. The girls here help me with a bath. I do the rest that I can reach. I get the water nice and warm and rinse myself off.They come and dry me. They treat me very good. Things are better here than when I was living at home. I was taken by Jack back to see my place some while ago. I don't remember the exact time. As I remember it,I have stairs down from the living room to the basement. I have a three-sided railing. It's a very unusual house. There's nothing like it anywhere." He then showed me a Christmas ashtray made by his wife for him-4n.1974 with two cherubs on it. He commented that he had not smoked in 20 years. When asked dtabout medical issues,he indicated he had had a cerebrovascular accident on his 80'h birthday. When asked how long ago that was he stated, "Twenty-seven, twenty-eight, twenty- nine years? I don't know.I have to figure it out." When asked who was his current power of attorney he listed his daughter,Jane,who works with Harriet. When asked if he had had a past power of attorney, there was a long delay before he said,"I'm trying to remember my will. I always kept it at home. I had named the boys and girls to share equally. That's about all I can say." When asked if he would make any changes in anything,he continued,"I don't think I want to go back to my house. If anything,I know I have to be content with my conditions here." On mental status exam he appeared as an elderly gentleman who had to make several trips to the 1 bathroom over the course of the evaluation, using his walker to assist hire. He was only approximately oriented for time,missing the date by several days,but was oriented to place and person. Mood and affect were variable, at times close to frank tears,and at other times smiling and somewhat grandiose regarding his past accomplishments and activities. On three item recall after several minutes he could only remember one item and,as noted throughout the items above there are many things which he does not remember.When asked,he did remember having read a letter written by his son, Jack, while he was in a phone conversation with his daughters, indicating his annoyance with them in following the written script for him by Jack, but when asked specifically,denied any such feelings currently. There was no evidence of overt psychotic symptoms such as delusions,hallucinations,or paranoid distortions.Cognitive functions are Page 5 - RE:Clayton Hoke significantly impaired Memory is impaired,particularly recent memory. Suicidal and homicidal - ideation were denied. Judgment is impaired.Insight is marginal. DIAGNOSTIC IMPRESSION Axis I Early dementia. i Axis H No diagnosis. Axis III Status post cerebrovascular accident. Benign prostatic hypertrophy. i - Axis IV Degree of stress mild;functioning well in assisted living circumstances. i Axis V Current GAF=55. COMMENTS l It is dear with reasonable medical certainty that the deed transferring his property to his son, Jack,vas due to coercion and not at all his stated intent on several occasions over the course of the a-laluation. Review of the financial documents for the last several years from several banks 1 strongly suggests his son Jack has been unfaithful to his fiduciary responsibility to his father and has expended large sums for his own personal use from his father's assets. If you have any questions,please to not hesitate to be in touch with me. Very Truly Yours, t John M.Hume,M.D.,J.D. JMH/DS-kts I I EXHIBIT E STONE, DUNCAN, &LINSENBACH, PC Attorneys and Counselors The Key to Great legal Services sM www.StoneDuncan.com March 11, 2013 Michael Scherer, Esq. Baric Scherer, LLC 19 West South Street . Carlisle, PA 17013 RE: Hoke V. Hoke Dear Attorney Scherer: After taking your deposition last week and further reviewing the file, I have several concerns with moving forward with this case. First, I feel you may have overlooked a few potential conflicts that arise with.your representation of the .case. Your personal and professional history with the Plaintiff puts you in a position where your testimony could potentially have an impact on the outcome of the case. Pursuant to Rule 3.7 of the Pennsylvania Rules of Professional Conduct, an attorney is not permitted to act as an advocate in a trial where he is likely to be a witness. In your deposition, you testified to Clayton Hoke's mental capability both before and after the deed transfer in 2010. You also testified that you prepared several of Clayton Hoke's wills and powers of attorney. Essentially,you are a key witness to whether or not Clayton Hoke may be capable of making financial and personal decisions on his own. Pursuant to Pa.R.P.C. 1.7(a)(2), there may be a potential conflict of interest in this case. According to this rule, an attorney is prohibited from representing a client if the representation would be severely limited by responsibilities to another client, former client, or by a personal interest of the lawyer. Because of the personal relationship and past history with the parties involved, including your past work for Jack Hoke as a Power of Attoney for Clayton Hoke, this could raise an issue of conflict. Second, at your deposition you testified that before filing this Complaint, you never discussed the claims with Clayton Hoke. The Rules of Civil Procedure require that .Clayton sign the verification of the Complaint if he is Main Office: 8 N. Baltimore Street Duane.P.Stone Alina M. Dusharm 5441 Jonestown Road Dillsburg, PA 17019 Jason B. Duncan' Michael A.Trimmer" Harrisburg, PA 17112 OFFICE 717-432-2089 Brian C. Linsenbach Lam D.Truong" OFFICE 717-412-7787 FAX 717-432-0158 'Also licensed in New Jersey "'Harrisburg Office FAX 717-432-0158 capable. However, you used his powers of attorney to verify the Complaint and provide the necessary information. It is doubtful that Clayton Hoke was capable of signing a new Power of Attorney and making legal decisions and then incapable of signing the verification of the Complaint a month later. In fact, Clayton Hoke has made it clear that he does not approve of this litigation. Your own expert report states numerous times that Clayton does not like the conflict between his sons and daughters. He stated, "There is a controversy with Jack and the sisters, and I don't like that at all. Sisters and brothers should get along with one another." Later, when asked what he might have for three wishes, he says, "The most important would be that my sons and daughters all get along better. That's the most important thing, if they just take care of that." Clayton Hoke's stated interest is that he wants his sons and daughters,to get along, and not to pursue litigation against each other. Instead, Clayton's Powers of Attorney have chosen to bring the claim in his name rather than on their own behalf, which we feel is inappropriate. Third, if you believe Clayton Hoke is incapable of making this decision to bring the claim against Jack Hoke, as you stated in your deposition, you would need to petition the court to declare him incapacitated and appoint a guardian for him pursuant to Pa.R.C.P. 2053. Because of the reasons stated previously, we would object to any of Clayton Hoke's daughters serving as his guardian for the purposes of this litigation, as they have personal interest in the outcome and have demonstrated their willingness to act against Clayton Hoke's best interest. For these reasons, it is our position that you should .withdraw the Complaint against Jack Hoke on behalf of Clayton Hoke and cease your representation of him in this matter. We are hopeful that we can resolve this amicably rather than take further legal action in this regard. Please discuss this with your clients and contact me with any questions you may have. Thank you. Sincerely i Alin . Dush i 1 f. • v CERTIFICATE OF SERVICE I, Lauren S. Linsenbach, an employee with the law firm of Stone Duncan and Linsenbach, do hereby certify that on this day of May, 2013, I served a true and correct copy of the foregoing Motion to Dismiss and Disqualify, via U.S. first-class mail, addressed to the following: Michael A. Scherer, Esq. Baric Scherer LLC 19 West South Street Carlisle, PA 17013 L n S. Linsenb , Paralegal CLAYTON E. HOKE, Plaintiff V. IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT 2011-06859 CIVIL TERM JACK A. HOKE, Defendant IN EQUITY IN RE: MOTION TO DISMISS AND DISQUALIFY 1. ORDER OF COURT AND NOW, this 1*4day of May 2013, upon consideration of Defendant's Motion to Dismiss and Disqualify, a RULE is issued upon Plaintiff to show cause, if any, why the relief requested should not be granted. DEFENDANT shall serve this Rule upon Plaintiff. RULE RETURNABLE twenty (20) days from the date of service by Defendant. BY T T Thomas AVIacey C.P.J. Distribution: v-"Alina Dusharm, Esq. Michael A. Scherer, Es q. --r-)r-n ��C; IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA cw CLAYTON E. HOKE, �ez Plaintiff JUDGE Thomas A. Placey nom ;MM V. - <> NO. 11-6859 Civil JACK A. HOKE, ° ,-:- Defendant CIVIL ACTION-EQUITY �5(n MOTION TO EXTEND OR SUSPEND THE DEADLINE TO FILE PRE-TRIAL MEMORANDUMS AND NOW comes Defendant, Jack A. Hoke,by and through his counsel, Alina M. Dusharm, Esq., and the firm Stone, Duncan, & Linsenbach, P.C., and files this Motion to Dismiss and Disqualify and avers as follows: 1. This action was commenced by Complaint on August 31, 2011. 2. On January 11, 2013, Defendant's new counsel entered their appearance. 3. Defendant's counsel did not receive a copy of the file from previous counsel until mid-February 2013. 4. Defendant reviewed the file, and took the deposition of Attorney Michael Scherer on March 1, 2013. 5. At that time, Defendant indicated to Attorney Scherer that they would have more discovery before trial. 6. On March 11, 2013, Defendant sent Attorney Scherer a letter explaining their concerns with the case, and some procedural issues that needed to be corrected. See Attached"Exhibit A." r. 7. On March 22, 2013, without responding to Defendant's letter and without notice to Defendant's counsel, Attorney Scherer filed a praecipe to list the case for trial. 8. This case has been assigned to The Honorable Thomas A. Placey for trial. 9. At this time, Defendant is in no way prepared for trial, and needs additional time to engage in discovery. 10. Additionally,there is a pending Motion before the court that may dismiss the case. 11. Defendant asks that the Court suspend, or in the alternative, extend,the deadline to file the Pre-trial Memorandum until the parties have adequate amount of time to conclude discovery, and until both parties agree to list the case for trial. 12. Defendant has sought concurrence in this motion, and Plaintiff's counsel has indicated that he concurs in extending the deadlines until after the pending Motion is decided. WHEREFORE, Defendant, Jack A. Hoke, respectfully requests that this Honorable Court suspend the deadline to file the Pre-trial Memorandum, and in the alternative, extend the deadline until the necessary discovery can be completed, and the parties agree to list the case for trial.. STONE, DUNCAN, & LINSENBACH,PC Dated: �(°�1 l J By: Alina M. Dush quire Attorney ID # 309861 Jason B. Duncan, Esquire Attorney ID# 87946 8 North Baltimore Street Dillsburg, PA 17019 Tel. No.: (717) 432-2089 Fax No.: (717) 432-0158 CERTIFICATE OF SERVICE I, Alina M. Dusharm, an employee with the law firm of Stone Duncan and Linsenbach, do hereby certify that on this z,?( day of May, 2013, 1 served a true and correct copy of the foregoing Motion to Suspend or Extend Deadline to File Pre-trial Memorandums, via U.S. first- class mail, addressed to the following: Michael A. Scherer, Esq. Baric Scherer LLC 19 West South Street Carlisle,PA 17013 �Op a�z�' A ina . Dush , Esq. CLAYTON E. HOKE, IN THE COURT OF COMMON PLEASc®F , Plaintiff CUMBERLAND COUNTY, PENNSY1, _NI { c�� i r1113, fC H V. NO. 2011-6859 CIVIL TERM Ci JACK A. HOKE, � - CIVIL ACTION-EQUITY Defendant PLAINTIFF'S ANSWER TO DEFENDANT'S MOTION TO DISMISS AND DISQUALIFY AND NOW, comes Michael A. Scherer, Esquire, attorney for the Plaintiff, Clayton E. Hoke, and responds to the Defendant's Motion to Dismiss and Disqualify as follows: 1. Admitted that Jack Hoke (hereinafter "Jack") moved in with Clayton Hoke (hereinafter "Clayton") in August, 2008. The remainder of the allegation is denied as being beyond the knowledge of answering party. 2. For purposes of clarity, the Power of Attorney dated June 16, 2009, was prepared for Clayton, naming Jack as Agent. 3. The allegation in Defendant's Motion makes reference to Jack's Power of Attorney; if the allegation was meant to refer to Clayton's Power of Attorney, the reply is that Clayton revoked the Power of Attorney dated June 16, 2009 on July 20, 2011 when Jack prepared to enter drug rehabilitation at the Caron Foundation. 4. Admitted that undersigned counsel read the "Agent Acknowledgment" form to Jack before Jack signed the form on June 16, 2009. 5. Admitted that Jack lived with Clayton. It is believed Jack used Clayton's money to do upgrades to Clayton's home that were not necessarily warranted. 6. As indicated in the Complaint filed in this matter, Clayton's daughters, Susan Hoke, Jane Hoke and Harriet Reed were essentially driven away from Clayton by Jack's disrespectful, threatening and belligerent behavior. 7. It is unknown what actions Jack took regarding Hospice and why. 8. The allegation in paragraph 8 is beyond the knowledge of answering party. 9. Admitted that Clayton purported to sign a deed conveying his house to Jack, reserving a life estate for himself in the real estate. 10. Admitted that Harriet Reed and Jane Hoke brought their father to undersigned counsel in July, 2011 because, in part, Jack was going into inpatient drug rehabilitation and would be unavailable to serve as Clayton's Agent under the existing Power of Attorney naming Jack as Clayton's Agent. 11. On July 20, 2011, Clayton executed a new Power of Attorney naming Harriet and Jane as Agents. 12. - 15. Admitted. 16. Admitted that the partial quote selected from the whole email is accurate; but the entire email from undersigned counsel should be read to put the selected quote in context. 17. Admitted. 18. - 20. Admitted. Furthermore, Dr. Hume's report should be read in its entirety to understand the conclusions therein because selecting random statements from the report is misleading. 21. - 22. Denied as legal conclusions. 23. Admitted that Clayton wants his children to get along, however, Jack's actions towards his sisters has made that impossible. Clayton is in need of the assistance of his Agents in managing his assets, which should include his home which was improperly deeded over to Jack. 24. Admitted the Complaint was not verified by Clayton. Denied that Clayton was not made aware of the Complaint having been filed. 25. Denied as a legal conclusion. Furthermore, the Power of Attorney dated July 20, 2011 provides that Jane and Harriet have the power to pursue litigation on behalf of Clayton. 26. Denied. This allegation is a complete misstatement of undersigned counsel's words. Undersigned counsel did not say Clayton was unable to sign the verification; and undersigned counsel did not say Clayton was incompetent. The Power of Attorney naming Jane and Harriet as Clayton's Agent is valid, in that Clayton knew he needed assistance in his personal affairs, he knew that Jack was going to drug rehabilitation and couldn't help him, he knew who his children were, what their situations in life were, and he.desired that Jane and Harriet assist him with his personal affairs. 27. This allegation states a legal conclusion and is denied. 28. Denied. Undersigned counsel does not understand this allegation. 29. Denied. This allegation appears to assert a legal conclusion. 30. Denied. Plaintiff has the assistance of his Agents under a Power of Attorney and does not need a guardian. 31. Denied. There is no basis to exclude undersigned counsel. 32. This allegation is confusing and difficult to reply to. Undersigned counsel never gave Jack legal advice as the allegation implies. The allegation refers to "Jack Hoke based upon his POA..." Undersigned counsel has no knowledge of Jack Hoke's POA. The allegation that undersigned counsel has an attorney-client relationship with Jack is completely false and baseless. Jack previously reported undersigned counsel to the Disciplinary Board of the Supreme Court of Pennsylvania regarding a claim of a violation of the attorney-client relationship, and the Disciplinary Board investigated the matter and dismissed the complaint against undersigned counsel. 33. This allegation is confusing in that the reference to "former representation" lacks specificity. 34. Denied undersigned counsel ever represented Jack Hoke. 35. Jack need not consent to undersigned counsel's representation of Clayton. 36. Denied as a legal conclusion. 37. Denied for the reasons set forth in paragraphs 31 through 36 above. 38. Admitted. 39. Denied. Clayton's mental capacity is the subject of Dr. Hume's report. The gravamen of the Complaint relates to the signing of the Deed at attorney Hatch's office; undersigned counsel is not a witness to that transaction. 40. Admitted. 41. Admitted. 42. Denied that undersigned counsel has a "personal connection" with one of Jack's sisters. 43. Denied as a legal conclusion. 44. Admitted undersigned counsel received opposing counsel's March 11, 2013 letter. 45. Admitted. 46. Denied. Opposing counsel has repeatedly assured undersigned counsel that discovery would be completed in a timely fashion and undersigned counsel listed the case for trial on that basis. 47. Denied as a legal conclusion. 48. Denied. Undersigned counsel is not a key witness in this case. NEW MATTER 49. Jack Hoke was previously represented by Hubert Gilroy, Esquire. 50. Jack Hoke's prior counsel never sought to exclude undersigned counsel from representing Clayton Hoke due to an alleged conflict of interest or any other matter. 51. It would be prejudicial at this stage of the litigation to force Clayton Hoke to retain new counsel and given the fact that this case is in Equity before the Court and not before a jury, the chance of the trier of fact being confused by the relationships of the parties and counsel is nearly zero. DISCOVERY/TRIAL ORDER 52. This matter was filed August 31, 2011. 53. Undersigned counsel explained to Jack's present counsel in January, 2013 that the matter was over a year old and that he wanted to conclude discovery and list the matter for trial, especially in light of Clayton's advanced age. 54. Jack's counsel at that time indicated an understanding of undersigned counsel's request to list the case for trial and promised his cooperation. 55. Undersigned counsel has repeatedly requested from Jack's counsel to do an inspection of the real estate in question and despite numerous requests the inspection has not occurred. 56. The deed which purports to convey the real estate to Jack reserves a life estate in Clayton and entitles Clayton to the income from the property. 57. Jack has paid Clayton no income from the property and presently the property is vacant due to Jack's incarceration for a felony conviction relating to the altering of a prescription. 58. Undersigned counsel seeks an Order directing that discovery be completed and the case listed for trial. WHEREFORE, undersigned counsel requests that the parties be directed to conclude discovery, file pretrial memorandum and that trial be scheduled. Respectfully submitted, BARIC SCHERER LLC Vhw—N—Z Mich A. Scherer, Esquire I.D. o.: 61974 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 Attorney for Clayton Hoke VERIFICATION I verify that the statements made in the foregoing Plaintiff's Answer to Defendant's Motion to Dismiss and Disqualify are true and correct to the best of my knowledge, information and belief. This verification is signed by Michael A. Scherer, Esquire, Attorney for Plaintiff and is based upon the statements provided by Plaintiff and/or his Agents, as well as documents reviewed by the undersigned as attorney for Plaintiff. This verification will be substituted and ratified by a verification signed by the Plaintiffs Agent(s) who is presently unavailable to sign said verification. I undersigned that false statements herein are made subject to penalties of 18 Pa.C.S. §4904, relating to unsworn falsifications to authorities. Michael A. Scherer, Esquire Dated: �� 3 CERTIFICATE OF SERVICE I hereby certify that on June 4 , 2013, I, Andrea M. Ramos, secretary at Baric Scherer LLC, did serve a copy of the Plaintiff's Answer To Defendants' Motion To Dismiss and Disqualify, by first class U.S. mail, postage prepaid, to the parties listed below, as follows: Alina M. Dusharm, Esquire Jason B. Duncan, Esquire Stone, Duncan & Linsenbach, P.C. 8 North Baltimore Street Dillsburg, Pennsylvania 17019 Andrea . R Yq CLAYTON E. HOKE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 11-6859 Civil JACK A. HOKE, Defendant CIVIL ACTION-EQUITY rrj Cc C_ I"F ORDER GRANTING DEFEN ANT'S MOTION _ priF AND NOW, on this 4 day of 2013, upon consideration of Defendants' Motion to Suspend or Extend the Deadline to File Pre-trial Memorandums, it is hereby ordered that Defendants' Motion is GRANTED. The deadline to file the Pre-trial Memorandum is SUSPENDED until the parties have adequate time to complete discovery and until both parties agree to list the case for trial. BY THE OURT: Thomas A. lacey C.P.J. Distribution List: `f Michael A. Scherer, Esq., 19 West South Street, Carlisle, PA 17013 i��r Alina M. Dusharm, 8 N. Baltimore Street, Dillsburg, PA 17019 n p2 � i Tr JUN I I PH CLAYTON E. HOKE, i ' ' PlaintiffLN EP!A14 I�;QUNI ` � PENNSYL,WN1A V. IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT 2011-06859 CIVIL TERM JACK A. HOKE, Defendant IN EQUITY IN RE: MOTION TO DISMISS AND DISQUALIFY ORDER OF COURT AND NOW, this 11th day of June 2013, upon consideration of Defendant's Motion to Dismiss and Disqualify and Plaintiff's response thereto, a HEARING is scheduled for 3 July 2013 at 2:30 p.m. in Courtroom Number Six of the Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, Distribution: Thomas A. Placey C.P.J. lina Dusharm, Esq. -4ichael A. Scherer, Esq. eo LL CLAYTON E. HOKE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2011-6859 CIVIL TERM C JACK A. HOKE, CIVIL ACTION-EQUITY rY Defendant r> c-` PRAECIPE TO ATTACH SUBSTITUTE VERIFICATIONS , Please attach the following Substitute Verifications to Plaintiffs Answer'To ' Defendant's Motion To Dismiss And Disqualify filed in this matter on June 4, 2013. Respectfully submitted, BARIC SCHERER LLC d i�t hael A. Scherer, Esquire Date: I.D. # 61974 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 VERIFICATION The statements in the foregoing Plaintiffs Answer to Defendant's Motion to Dismiss and Disqualify are based upon information which has been assembled by my attorney in this litigation. The language of the statements is not my own. I have read the statements; and to the extent that they are based upon information which I have given to my counsel, they 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. § 4904 relating to unsworn falsifications to authorities. Date: c O C/ Harriet Reed VERIFICATION The statements in the foregoing Plaintiff's Answer to Defendant's Motion to Dismiss and Disqualify are based upon information which has been assembled by my attorney in this litigation. The language of the statements is not my own. I have read the statements; and to the extent that they are based upon information which I have given to my counsel, they 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. § 4904 relating to unsworn falsifications to authorities. Date: -:: U ne 6 , Z©" Jane L. Hoke a ' CERTIFICATE OF SERVICE I hereby certify that on June It , 2013, I, Jennifer S. Lindsay, secretary at Baric Scherer LLC, did serve a copy of the Praecipe To Attach Substitute Verifications, by first class U.S. mail, postage prepaid, to the parties listed below, as follows: Alina M. Dusharm, Esquire Jason B. Duncan, Esquire Stone, Duncan & Linsenbach, P.C. 8 North Baltimore Street Dillsburg, Pennsylvania 17019 J n i . Lind SM CLAYTON E. HOKE, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA VS : NO. 2011-6859 CIVIL TERM JACK A. HOKE, Defendant : CIVIL ACTION - EQUITY IN RE: STATUS CONFERENCE ORDER OF COURT AND NOW, this 3rd day of July, 2013, upon a meeting with counsel and the current powers of attorney for Clayton E. Hoke in consideration of Jack A. Hoke ' s Motion to Dismiss and Disqualify that was held in the jury deliberation room of Courtroom No. 6, the parties are given time to brief the issues as they find them to the Court with Defendant ' s brief being due on 24 July 2013 and Plaintiff ' s brief being due on 14 August 2013 . By the Court, Thomas A. �,lacey, C. P. J. Michael A. Scherer, Esquire ,/Alina Dusharm, Esquire :mlc 0 er ies f <<41. 7/ �13 �� _.: > ; cp� z> , CLAYTON E. HOKE, Plaintiff V. IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT JACK A. HOKE, 2011-06859 CIVIL TERM Defendant IN EQUITY IN RE: REQUEST FOR BRIEF EXTENSION ORDER OF COURT AND NOW, this 24th day of July 2013, upon consideration of an electronic request from Defendant's attorney's office for an extension, concurred with by opposing counsel, the request is GRANTED. Defendant is given an extension time until 7 August 2013 to file a brief in this matter. Distribution: Thornz s A. Placey C.P.J. /Jason Duncan, Esq. /Michael A. Scherer, Esq. M CD r�t =M 01 rT1 cn s- -'7Q I- Cn c� 2> 7" CLAYTON E. HOKE, j �i;��� Plaintiff tosi v. u IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT 2011-06859 CIVIL TERM JACK A. HOKE, Defendant IN EQUITY IN RE: MOTION TO DISMISS AND DISQUALIFY ORDER OF COURT AND NOW, this 16th day of October 2013, following a review of the Motion to Dismiss and Disqualify, briefs of counsel, and the 80 page record, the motion is DENIED. Counsel are directed to contact the court's secretary, advise her of the expected amount of time for a trial, and then set a trial date in this equity matter. BY THE COURT Thomas A. lacey C.P.J. Distribution: as../Jon B. Duncan, Esq. Ana Dusharm, Esq. CO CD FYI C, chael A. Scherer, Esq.• 1�.c / 721 • c .77) J 1 CLAYTON E. HOKE, Plaintiff iLl I 111,11111Petil " , Nit v. IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT 2011-06859 CIVIL TERM JACK A. HOKE, Defendant IN EQUITY IN RE: NON-JURY TRIAL ORDER OF COURT AND NOW, this 7th day of January 2014, the Non-jury trial in this equity matter will commence on 10 April 2014 at 9:00 a.m. in Courtroom No. 6 of the Cumberland County Courthouse, Carlisle, Pennsylvania. This will be a one day trial. BY THE COURT, Thomas r lacey C.P.J. Distribution: Jason B. Duncan, Esq. ....4chael A. Scherer, Esq. Court Administration &r, Pkr_cct LC' -r: 1---) r - CLAYTON E. HOKE, Plaintiff v. JACK A. HOKE, Defendant • IN THE COURT OF- COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2011 -6859 CIVIL TERM CIVIL ACTION - EQUITY PLAINTIFF'S,MOTION IN LIMINE AND NOW, comes Michael A. Scherer, Esquire, attorney for the Plaintiff, Clayton E. Hoke, and avers as follows: 1 , Stone, Duncan & Linsenbach PC, in the person of Jason Duncan, Esquire, entered their appearance on behalf of Jack Hoke in this matter in January, 2013. At that time, undersigned counsel spoke to attorney Duncan on the telephone about the need to move thismatter along and to get,the case,listed for trial, due to the age of the case and the age of Clayton Hoke. 2. On October 20, 2011, undersigned counsel served Interrogatories on Jack Hoke's prior counsel, Hubert Gilroy, Esquire. Those interrogatories requested the names of trial witnesses and exhibits Defendant intended to offer at trial. Defendant indicated his intention to supplement his answers after his witnesses were selected. . 3. On or about January 23, 2012, Defendant answered the interrogatories. Defendant's answers indicated that, at that time, he had not identified trial witnesses (fact or expert) and that he had not identified and exhibits or admissions that he intended to use at trial. Defendant indicated his intention tosupplement his response if . a he intended to use and exhibits or admissions at trial. . 4. On March 5, 2013, undersigned counsel wrote to attorney Duncan at attorney Duncan's request and provided Clayton Hoke's trial witnesses. In that letter, undersigned counsel stated: "I was not provided with complete answers to my interrogatories dated October 20, 2011. I enclose those interrogatories and the partial Answers Hubert's office provided. Please complete those answers." 5. On or about March 5, 2013, undersigned counsel listed this matter for trial. 6. On May 10, 2013, Alina Dusharm, Esquire, wrote to undersigned counsel and stated: " In response to your letter dated March 5, 2013, and subsequent emails, 1 have again reviewed my clients's previous answers to your interrogatories. At this time, it is still unclear which interrogatories you want my client to supplement. I am happy to comply with your request for more information, if you would kindly direct me to the information that you are seeking." 7. It is clear from the Answers to Interrogatories that Defendant has identified no trial witnesses and no exhibits despite undersigned counsel's request for this information. 8. After undersigned counsel listed this matter for trial Defendant filed a Motion to Dismiss the Case and to Disqualify undersigned counsel, the resolution of which delayed listing the case for trial. 9. Defendant Hoke has been in possession of Plaintiffs witness list for over a year and attorney Duncan has conducted a deposition in this matter in January, 2014. 10. On March 26, 2014, undersigned counsel called attorney Duncan regarding settlement discussions, stipulations at trial and other trial preparation matters. 11. On March 27, 2014, undersigned counsel spoke with attorney Duncan, at which time attorney Duncan revealed that he intended to call certain witnesses at trial. 12. On March 31, 2014, attorney Duncan emailed undersigned counsel a list of six witnesses Defendant intends to call at trial. 13. Undersigned counsel objects to Defendant's intention to call these witnesses as their disclosure is untimely and Plaintiff is prejudiced in attempting to prepare for trial given the late disclosure of these witnesses, with the exception of attorney Craig Hatch, Esquire, who was previously deposed by undersigned counsel. 14. In the March 31, 2014 email from attorney Duncan to undersigned counsel, attorney Duncan indicated an intention to call undersigned counsel as a witness at trial. Undersigned counsel believes this issue was resolved in the Court's denial of Defendant's Motion to Disqualify undersigned counsel, who therefor objects to testifying at trial. 15. Trial is set in this matter for April 10, 2014, before the Honorable Thomas A. Placey. WHEREFORE, Plaintiff respectfully requests that this Honorable Court refuse to permit the testimony of any defense witness except for the Defendant and Craig Hatch, Esquire; that Defendant be precluded from introducing any exhibits at trial; and that the Defendant be prevented from calling Michael A. Scherer, Esquire as a witness in this case. Respectfully submitted, BARIC SCHERER LLC Michael A, Scherer, Esquire I.D. No.: 61974 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 Attorney for Clayton Hoke VERIFICATION I verify that the statements made in the foregoing Plaintiffs Answer to Defendant's Motion to Dismiss and Disqualify are true and correct to the best of my knowledge, information and belief. This verification is signed by Michael A. Scherer, Esquire, Attorney for Plaintiff and is based upon the statements provided by Plaintiff and/or his Agents, as well as documents reviewed by the undersigned as attorney for Plaintiff. This verification will be substituted and ratified by a verification signed by the Plaintiffs Agent(s) who is presently unavailable to sign said verification. I undersigned that false statements herein are made subject to penalties of 18 Pa.C.S. §4904, relating to unsworn falsifications to authorities. Mich h re , Esquire Dated: April 1, 2014 CERTIFICATE OF SERVICE 1 hereby certify that on April 1, 2014, I, Jennifer S. Lindsay, secretary at Baric Scherer LLC, did serve a copy of the Plaintiffs Motion In Limine, by first class U.S. mail, postage prepaid, to the party listed below, as follows: Jason B. Duncan, Esquire Stone, Duncan & Linsenbach, P.C. 8 North Baltimore Street Dillsburg, Pennsylvania 17019 CLAYTON E. HOKE: Plaintiff JACK A. HOKE, Defendant IN THE COURT OF CO'MMON'PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA :l NO. 2011- 6859`_:CZVIL TERM )r Jit CIVIL ACTION- EQUITY NOTICE TO PLEAD a74 You are hereby notified that you have twenty (20) days in which to plead to the enclosed Amended Complaint or a Default Judgment may be entered against you. i� Date: April 1, 2014 BARIC SCHERER LLC Scherer, Esquire I.Q. #61974. 19 West South Street Carlisle, Pennsylvania 17013 (717) 249y6873" m ={ CLAYTON E. HOKE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2011 -6859 CIVIL TERM JACK A. HOKE, CIVIL ACTION - EQUITY Defendant : AMENDED COMPLAINT AND NOW, comes Clayton E. Hoke, by and through his agents, Harriet L. Reed and Jane L. Hoke and attorney, Michael A. Scherer, Esquire, and respectfully represents amends the Complaint to add claims for the fair rental value of the real estate, punitive damages and attorneys' fees: 1. The Plaintiff is Clayton E. Hoke (hereinafter "Clayton "), an adult individual who resides at Country Meadows Nursing Home in Mechanicsburg, Cumberland County, Pennsylvania 17055. 2. The Defendant is Jack A. Hoke (hereinafter "Jack "), an adult individual who resides at 20 Creamery Road, Boiling Springs, Cumberland County, Pennsylvania 17007. 3. Clayton is Jack's father. 4. Clayton was born on May 28,1921 and is presently 92 years of age. 5. Clayton has four adult children, namely Harriet L. Reed, Jane L. Hoke, Susan J. Hoke and Jack A. Hoke. 6. Jack began to reside with Clayton in or about April, 2008 after Jack lost his home in a foreclosure. 7. After Jack began to reside with Clayton, Jack began to control most of the aspects of Clayton's life, including Clayton's finances, assets, diet and activities of daily living. 8. In or about February, 2009, Jack berated and argued with Clayton in the presence of Harriet L. Reed, who is Clayton's daughter and Jack's sister. 9. Since Jack moved in with Clayton, Jack's conduct towards his sisters, Harriet L. Reed, Jane L. Hoke and Susan J. Hoke was disrespectful, threatening and belligerent to the point that Clayton's daughters avoided contact with Jack and thereby had little contact with Clayton since Jack lived with Clayton. 10. Jack has been untruthful with his sisters regarding the affairs of their father, Clayton. 11. At all times relevant hereto, Jack has had a confidential relationship with Clayton. 12. Clayton named Jack as his Agent by virtue of a Power of Attorney executed by Clayton on June 16, 2009. 13. Clayton revoked the Power of Attorney naming Jack as agent on July 20, 2011. 14. Jack sold Clayton's Pontiac Vibe automobile for $4,000.00 and used the funds to pay down the indebtedness on Jack's vehicle. 15. Clayton had approximately $15,000.00 in M&T Bank when Jack was appointed as Clayton's agent; at present, Clayton has less than $7,000.00 in M&T Bank, despite Clayton having a substantial monthly income from pensions and social security. 16. While Jack was Clayton's Agent, Jack caused certain renovations to take place at 20 Creamery Road, including a new furnace, new roof, a new picture window, new rain gutters and a new Kubota tractor was purchased to mow the lawn. 17. On or about April 20, 2011, Clayton executed a deed conveying 20 Creamery Road to Jack. A copy of the deed is attached hereto as "Exhibit A." 18. The Creamery Road property is a ranch home on a moderate size lot in South Middleton Township, and is assessed for real estate taxes at $146,900.00. 19. There were no liens on Creamery Road when it was conveyed from Clayton to Jack. 20. The conveyance of 20 Creamery Road to Jack was contrary to Clayton's estate plan which had been in place for at least ten years wherein Clayton divided his estate equally among his children. 21. Jack exerted undue influence over Clayton relative to Clayton's execution of the deed dated April 20, 2011 which conveyed 20 Creamery Road from Clayton to Jack. 22. As a result of Clayton's reliance and dependence upon Jack for nutrition, transportation and activities of daily living, Clayton succumbed to Jack's undue influence and overcame Clayton's free will with respect to the conveyance of 20 Creamery Road such that the conveyance was involuntary. 23. In the alternative, Jack committed fraud in causing his father to execute the deed which conveyed Creamery Road to Jack. 24. Jack lost a property through a foreclosure and although the foreclosure was strictly in rem and against the real estate, it is believed and averred that Jack is personally liable to his former mortgage company in the amount of approximately $143,000.00. 25. In the event a personal judgment is taken against Jack by his former mortgage company for the indebtedness Jack incurred pursuant to the mortgage note, the judgment would attach to 20 Creamery Road and would be a lien against that property, effectively negating the equity in that property. 26. Clayton will need the value of his home to assist to pay for his nursing home care and the conveyance of that real estate to Jack will result in a denial of medical assistance benefits to Clayton. 27. The deed which is attached hereto as "Exhibit A" contains the following language: "excepting and reserving therefrom, however, to the Grantor the full use, income, and possession of the described property for and during Grantor's natural life." 28. Jack's actions as Clayton's Agent were outrageous. WHEREFORE, Clayton prays this Honorable Court to: 1. Cancel and declare void the April 20, 2011 deed which conveyed 20 Creamery Road from Clayton to Jack and Order that Jack re- convey 20 Creamery Road to Clayton; 2. Require Jack to return to Clayton the funds realized from the sale of Clayton's automobile; and 3. Require Jack to account for the funds in Clayton's account at M &T Bank during the period that Jack was Clayton's Agent under the Power of Attorney. 4. Require Jack to pay Clayton fair rental value the Creamery Road residence from the time Clayton entered Country Meadows Nursing Home. 5. Require Jack to pay Clayton's attorneys fees in this matter together with punitive damages. Respectfully submitted, BARIC SCHERER LLC M' hael A. Scherer, Esquire I.D. # 61974 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 VERIFICATION The statements in the foregoing Complaint are based upon information which has been assembled by my attorney in this litigation. The language of the statements is not my own. I have read the statements; and to the extent that they are based upon information which 1 have given to my counsel, they 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. § 4904 relating to unsworn falsifications to authorities. Date: 741i/E4e `'Z c;?#/1 Harriet L. Reed VERIFICATION The statements in the foregoing Complaint are based upon information which has been assembled by my attorney in this litigation. The language of the statements is not my own. I have read the statements; and to the extent that they are based upon information which I have given to my counsel, they 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. § 4904 relating to unsworn falsifications to authorities. Date: (/ 9o Prepared by and Return to: Craig A. Hatch, Esq. Gates, Halbruner Hatch & Guise, PC 1013 Mumma Road, Suite 1100 Lemoyne, PA 17043 TAX PARCEL NO, 40 -27. 1921.019 SOUTH MIDDLETON TOWNSHIP DEED THIS DEED is made the O ' day of April, in the year two thousand eleven (2011). CLAYTON E. HOKE, now of 20 Creamery Road, Boiling Springs, Cumberland County, Pennsylvania, 17007, party of the first part, GRANTOR, AND JACK A. HOKE, single man, now of 20 Creamery Road, Boiling Springs, Cumberland County, Pennsylvania, 17007, party of the second part, GRANTEE. WITNESSETH, that said party of the first part, for and in consideration of the sum of One ($1.00) Dollar, lawful money of the United States of America, well and truly paid by the said party of the second part to the said party of the first part, at or before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, has hereby granted, bargained, sold, aliened, enfeoffed, released, conveyed and confirmed, and by these presents does grant, bargain, sell, alien, enfeoff, release, convey and confirm unto the said party of the second part, his heirs, successors and assigns, ALL THAT CERTAIN tract of land situate in South Middleon Township, Cumberland County, Pennsylvania, bounded and described as follows: BEGINNING at a point on the northern side of Creamery Road on the dividing line between Lots No. 1 and 2 on the hereinafter mentioned Plan of Lots; thence by said dividing line, thence by said dividing line, North 4 degrees 29 minutes 20 seconds West, 150.00 feet to a point; thence by land now or formerly of Edgar Spatz, North 85 degrees 30 minutes 40 seconds East 127.29 feet to an iron pin; thence South 11 degrees 17 minutes 10 seconds East 36.00 feet to a point on the Western side of L. R. 21020; thence by the western side of L. R. 21020, by a curve to the left having a radius of 263.75 feet an arc distance of 115.75 feet to a point on the northern side of Creamery Road; thence by the northern side of Creamery Road, South 85 degrees 30 minutes 40 seconds West 120.00 feet to the place of BEGINNING. BEING Lot No. 1 in Section "C" on the Plan of Lots known as Plan No. 2 of Countryside Acres as recorded in the Office of the Recorder of Deeds for Cumberland County, Pennsylvania, in Plan Book 19, Page 63. EXCEPTING AND RESERVING THEREFROM, however, to the Grantor the full use, income, and possession of the described property for and during Grantor's natural life. BEING the same premises which Ronald E. Weibley and Sandra L. Weibley, by deed dated March 6, 2011, and recorded in the Recorder of Deeds Office in and for Cumberland County, Pennsylvania, in Deed Book N 35, "EXHIBIT A" page 1052, granted and conveyed unto Clayton E. Hoke and Lorraine H. Hoke. Lorraine H. Hoke departed this life, thereby vesting complete title under operation of law to Clayton E. Hoke, Grantor herein. THIS IS A TRANSFER FOR NOMINAL CONSIDERATION FROM FATHER TO SON AND IS THEREFORE EXEMPT FROM THE PAYMENT OF REALTY TRANSFER TAX. TOGETHER with all and singular the buildings and improvements, ways, streets, alleys, driveways, passages, waters, watercourses, rights, liberties, privileges, hereditaments and appurtenances, whatsoever unto the hereby granted premises belonging, or in any wise appertaining, and the reversions and remainders, rents, issues, and profits thereof; and all the estate, right, title, interest, property, claim, and demand whatsoever of the said Grantor, as well at law as in equity, of, in, and to the same. TO HAVE AND TO HOLD, the said lot or piece of ground above - described, with all and singular the buildings and improvements thereon erected, hereditaments and premises hereby granted, or mentioned and intended so to be, with the appurtenances, unto the said Grantee, his heirs and assigns, to and for the only proper use and behoof of the said Grantee, his heirs and assigns forever. AND the said Grantor, for himself, his heirs, executors and administrators, does covenant, promise and agree, to and with the said Grantee, his heirs and assigns, by these presents, that he, the said Grantor, and his heirs, all and singular the hereditaments and premises hereby granted or mentioned and intended so to be, with the appurtenances, unto the said Grantee, his heirs and assigns, against him, the said Grantor and his heirs, and against all and every person and persons whomsoever lawfully claiming or to claim the same or any part thereof, by, from or under him, her, them or any of them, shall and will, subject as aforesaid, SPECIALLY WARRANT AND FOREVER DEFEND. IN WITNESS WHEREOF, the said party of the first part has hereunto set his hand and seal, the day and year first above- written. SIGNED, SEALED AND DELIVERED IN THE PRESENCE OF COMMONWEALTH OF P COUNTY OF L6 SY VA GIefi A CLA N E. HOKE SS: rh On this, thee, day of April, 2011, before me, a Notary Public for the Commonwealth of Pennsylvania, the undersigned officer, personally appeared CLAYTON E. HOKE, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he executed the same for the purpose therein contained. IN WITNESS WHEREOF, I hereunto set my ha COMMONINFALM OF PENNSYLVANIA Noaial sat Teri L W.Iker, Notary Public Waxy= Bono, Cumberland County My COmmfstiion elms Jan. 20, 2015 M UE , PENNSYLVANIA ASSOCATION OF NOTARIES CERTIFICATE OF RESIDENCE I hereby certify that the present residence of the Grantee herein is as follows: Jack A. Hoke 20 Creamery Road Boiling Springs, PA 17007 r Att ey for Grante ROBERT P. ZIEGLER RECORDER OF DEEDS CUMBERLAND COUNTY 1 COURTHOUSE SQUARE CARLISLE, PA 17013 717 -240 -6370 Instrument Number - 201111902 Recorded On 4/25/2011 At 12:07:12 PM * Instrument Type - DEED Invoice Number - 85796 * Grantor - HOKE, CLAYTON E * Grantee - HOKE, JACK A * Customer - GATES & ASSOCIATES * FEES STATE WRIT TAX $0.50 STATE JCS /ACCESS TO $23.50 JUSTICE RECORDING FEES - $11.50 RECORDER OF DEEDS PARCEL CERTIFICATION $10.00 FEES AFFORDABLE HOUSING $11.50 COUNTY ARCHIVES FEE $2.00 ROD ARCHIVES FEE $3.00 SOUTH MIDDLETON SCHOOL $0.00 DISTRICT SOUTH MIDDLETON TOWNSHIP $0.00 TOTAL PAID $62.00 User ID - ES Total Pages - 4 Certification Page DO NOT DETACH This page is now part of this legal document. I Certify this to be recorded in Cumberland County PA RECORDER Oli D EDS * - Information denoted by an asterisk may change during the verification process and may not be reflected on this page. I�IIIIBII��II CERTIFICATE OF SERVICE I hereby certify that on April 1, 2014, I, Jennifer S. Lindsay, secretary at Baric Scherer LLC, did serve a copy of an Amended Complaint, by first class U.S. mail, postage prepaid, to the party listed below, as follows: Jason B. Duncan, Esquire Stone, Duncan & Linsenbach, P.C. 8 North Baltimore Street Dillsburg, Pennsylvania 17019 r. Lindsa IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CLAYTON E. HOKE, Plaintiff v. JACK A. HOKE, Defendant C-) r� JUDGE Thomas A. Placey -o NO. 11 -6859 Civil �_; CIVIL ACTION - EQUITY =' co DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION IN LIMINE 1. Admitted. 2. Admitted in part. It is admitted that on or about October 20, 2011, plaintiffs counsel served Interrogatories on prior counsel. As to Attorney Gilroy's response, undersigned counsel does not have sufficient information to determine the veracity of this claim and therefore the same is denied. 3. Admitted. 4. Admitted. 5. Admitted. By way of further response, counsel for Plaintiff listed the case for trial without consulting with defense counsel as to the case being ready for trial. 6. Admitted. 7. Denied. To the contrary, there are witnesses and exhibits that Defendant intends to introduce at trial. By way of further information, Plaintiff never responded to the letter referenced in Paragraph 6 above and therefore no further response to the interrogatories was provided. 8. Admitted. By way of further explanation counsel for plaintiff listed the case for trial without consulting defense counsel to determine if counsel was indeed ready for trial and the delay of the trial was necessitated by the motions and a need to conduct further discovery. 9. Admitted. 10. Admitted. 11. Admitted. By way of further response, undersigned counsel has informally spoken with Plaintiffs counsel on numerous occasions regarding the desire to call witnesses and present evidence at trial and to try and reach a settlement in this case, without providing a formal list of witnesses. 12. Admitted. 13. Denied. It is denied that the disclosure of these witnesses is untimely and prejudices the Plaintiff. By way of further explanation, one of the witnesses, Debbi Mustard, is contained on Plaintiffs own witness list. Another of the witnesses, Dr. Daniels, is Plaintiffs treating physician, who provided letters to Attorney Hatch that were introduced at his deposition. The issue of Plaintiffs competency is a key issue in this case and Plaintiff has been on notice as to Dr. Daniels' for a couple of years. Additionally, Rodney Westhafer is the individual who performed renovations and repairs on the residence in question and his testimony and invoices provide plaintiff with an account of funds that has been requested in the complaint. Other witnesses are rebuttal witnesses. 14. Admitted in part and denied in part. It is admitted that undersigned counsel indicated an intention to call Attorney Scherer as a witness as to the competency of his client Clayton Hoke. It is denied that this issue was resolved by the Court's denial of defendant's motion to disqualify and is believed that Attorney Scherer's deposition is proper to admit as to the issue of competency as well as the fact that Attorney Scherer had Clayton Hoke sign new POAs indicating that Clayton was competent enough to sign the POAs. 15. Admitted. NEW MATTER 16. On April 1, 2014, Plaintiff filed an Amended Complaint in this matter without seeking leave of court or permission from counsel. 17. The effect of filing an Amended Complaint is that it has reopened the pleadings in this case which in turn has reopened discovery. 18. Due to the filing of the Amended Complaint the matter is not ripe for trial and therefore any prejudice claimed by Plaintiff in any late notice of witnesses is moot. WHEREFORE, Defendant, respectfully request this Honorable Court deny Plaintiffs Motion In Limine. Respectfully submitted, STO , DUNCAN NBACH, P.C. J son B. Duncan, Esq. Attorney for Defendant I.D.# 87946 8 N. Baltimore Street Dillsburg PA 17019 Phone: (717) 432-2089 Fax: (717) 432-0158 CERTIFICATE OF SERVICE I hereby certify that on the 4th day of April, 2014, a copy of the foregoing Response to Motion In Limine was served upon the following individuals by first-class mail, postage prepaid: Michael A. Scherer, Esq. Baric Scherer, LLC 19 West South Street Carlisle, PA 17013 Respectfully submitted, STA00 DUNCAN & LINSENBACH, P.C. dir Ja on B. Duncan, Esq. Attorney for Defendant Gierhart I.D.# 87946 8 N. Baltimore Street Dillsburg PA 17019 Phone: (717) 432-2089 Fax: (717) 432-0158 4. CLAYTON E. HOKE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 11-6859 JACK A. HOKE, CIVIL ACTION-EQUITY Defendant PRAECIPE TO WITHDRAW AMENDED COMPLAINT TO THE PROTHONOTARY: r^.1, 7:71.1 —.1 rn r; 7-71, CD 1V” c7, CD' C2 Kindly withdraw the Amended Complaint filed in this matter on April L-113 I 19 Respectfully submitted, BARIC SCHERER LLC Michael A. Scherer, Esquire I.D. # 61974 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 CERTIFICATE OF SERVICE I hereby certify that on April 7, 2014, I, Andrea M. Ramos, secretary at Baric Scherer LLC, did serve a copy of the Praecipe to Withdraw Amended Complaint, by first class U.S. mail, postage prepaid, to the parties listed below, as follows: Jason B. Duncan, Esquire Stone, Duncan & Linsenbach, P.C. 8 North Baltimore Street Dillsburg, Pennsylvania 17019 Andre b M. 'Ramos CLAYTON E. HOKE, Plaintiff v. JACK A. HOKE, Defendant 2011-06859 CIVIL TERM IN RE: PLAINTIFF'S MOTION IN LIMINE ORDER OF COURT AND NOW, this 4 day of April 2014, upon consideration of Plaintiffs Motion, a RULE is issued upon Defendants to show cause why the Defenant should be permitted to introduce testimony of any defense witnesses besides Defendant and Craig Hatch, to introduce any exhibits at trial, and to call Michael A. Sherer, Esq. as a witness in this case. PLAINTIFF shall effectuate service of this Order of Court upon Defendant and shall file proof of service. RULE RETURNABLE at the trial set for 10 April 2014. €ountp of Cumbettonb IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT Thoma A. Placey C.P.J. Distribution: Scherer, Esq. B. Duncan, Esq. 14C.S CLAYTON E. HOKE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVJIA v. NO. 2011 -6859 mco =� rn CIVIL ACTION- EQUITY 'f'' '` JACK A. HOKE, > CA) Q 1- 17C 4CW -71 ORDER OF COURT �— AND NOW, this 23 day of April, 2014, upon consideration of the attached-‹ Settlement Agreement, it is hereby Ordered and Decreed as follows: 1. The deed dated April 20, 2011, naming Clayton E. Hoke, as Grantor, and Jack E. Hoke, as Grantee, recorded in the office of the Recorder of Deeds of Cumberland County, Pennsylvania, as Instrument Number 201111902, relative to parcel number 40 -27- 1921 -019, and relating to property located at 20 Creamery Road, Boiling Springs, Cumberland County, Pennsylvania (hereinafter "residence "), is hereby void and invalid. Title to the residence shall remain vested in Clayton E. Hoke, and possession of the residence shall be with Clayton E. Hoke. 2. Jack A. Hoke shall have thirty days to remove his personal property from the residence. 3. Judgment shall be entered against Jack A. Hoke in this matter for $2,000.00. 4. Clayton E. Hoke shall file a praecipe to mark this action as having been settled and discontinued, with prejudice, following payment of the judgment set forth in paragraph 1 above. Defendant 5. Trial scheduled in this matter for April 10, 2014, in Courtroom Number 6 of the Cumberland County Courthouse, Carlisle, Pennsylvania is hereby canceled. Thomas . Placey, CPJ ael A. Scherer, Esquire For Clayton E. Hoke B. Duncan, Esquire For Jack A. Hoke 1/21Lrt ita3M CLAYTON E. HOKE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2011 -6859 JACK A. HOKE, CIVIL ACTION - EQUITY Defendant SETTLEMENT AGREEMENT AND NOW, comes Clayton E. Hoke, by and through his attorney, Michael A. Scherer, Esquire, and Jack A. Hoke, by and through his attorney, Jason B. Duncan, Esquire, who enter into the following settlement agreement: 1. The parties agree that the deed dated April 20, 2011, naming Clayton E. Hoke (hereinafter "Clayton "), as Grantor, and Jack E. Hoke (hereinafter "Jack "), as Grantee, recorded in the office of the Recorder of Deeds of Cumberland County, Pennsylvania, as Instrument Number 201111902, relative to parcel number 40-27 -1921- 019, and relating to property located at 20 Creamery Road, Boiling Springs, Cumberland County, Pennsylvania (hereinafter "residence "), is hereby null, void and invalid. Title to the residence shall remain vested in Clayton E. Hoke, and possession of the residence shall be with Clayton E. Hoke. 2. Jack shall have thirty days to remove his personal property from the residence. 3. Judgment shall be entered against Jack in this matter for $2,000.00. 4. Clayton shall file a praecipe to mark this action as having been settled and discontinued, with prejudice, following payment of the judgment set forth in paragraph 3. above. 5. Jack hereby releases Clayton, Harriet L. Reed and Jane L. Hoke from any further claims and actions related to Jack's residence with and care of Clayton, and any matter affecting the Power of Attorney dated June 16, 2009, wherein Clayton named Jack as his Agent. 6. Clayton hereby releases Jack from any further claims and actions related to Jack's residence with and care of Clayton, and any matter affecting the Power of Attorney dated June 16, 2009, wherein Clayton named Jack as his Agent. 7. Michael A. Scherer, Esquire certifies that he has the express authority from Clayton's agents, Harriet Reed and Jane Hoke, to execute this agreement on behalf of Clayton. 8. Jason B. Duncan, Esquire, certifies that he has the express authority from Jack to execute this agreement on behalf of Jack. 9. The parties agree that this Agreement shall be adopted as an Order of Court. Respectfully submitted BARIC SCHERER LLC ichael A. Scherer, Esquire I,D. # 61974 19 West South Street Carlisle, Pennsylvania 17013 (717) 249 -6873 Attorney for Clayton E. Hoke 41i o-j STONE, DUNCAN AND LINSENBACH Jason B. Dunca . ire l.D. # 87946 8 N. Baltimore Street Dillsburg, Pennsylvania 17019. (717) 432 -2089 Attorney for Jack A. Hoke