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HomeMy WebLinkAbout12-09-11In re the Edith S. Rife Trust : IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNSYLVANIA • ORPHANS' COURT DIVISION ~NO. 11-0325 ORPHANS' COURT NO. 10-1006 ORPHANS' COURT NO. 83-0773 ORPHANS' COURT PRELIMINARY OBJECTION TO PRELIMINARY OBJECTION OF EXECUTOR OF THE ESTATE OF CHARLES J. RIFE AND NOW COMES Petitioner, John W. Maxwell, a remainder beneficiary of the Edith S. Rife Revocable Trust, by and through his attorney, James D. Cameron __. ~~ preliminarily objects as follows: ~~ c-> ~', ~ FAILURE OF A PLEADING TO CONFORM 'c~~ ~ TO LAW OR RULE OF COURT ;.~ ~' ~'" '.. .:o V_~ r•~ v ' 1. On March 8, 2011, Petitioner filed a Petition ("the Petition") asking the Court, inter alia, to order the Executor of the Estate of Charles J. Rife ("the Executor") to file an accounting of the late Dr. Rife's administration of the Edith S. Rife Trust ("the Trust"). 2. The Petition was served on all parties interested in the Trust. 3. The Executor did not file a preliminary objection to the Petition. 4. On June 17, 2011, the Court held a hearing on the Petition. Counsel for the Executor was present. 5. At the conclusion of the hearing, the Court directed the Executor to file an accounting of the administration of the Trust by Charles J. Rife ("Trustee") within thirty (30) days. 6. Trustee's executor did not file an accounting as directed by the Court.. ._~ .?? ,, , - ,. ~T'J.. ~-~. t 1 L ~~ 7. On October 27, 2011, Petitioner filed a Motion For Rule To Show Cause, asking the Court to issue a Rule, directed to Trustee's executor, to show what cause he may have that the Court should not issue a declazation that Trustee had breached his fiduciary duties, and reserving the question of damages for further consideration by the Court. 8. On October 31, 2011, the Court issued the requested Rule. 9. On or about November 21, 2011, instead of filing an answer to the Rule, Trustee's executor filed a preliminary objection to the Rule. 10. It is contrary to law to file a preliminary objection in response to a rule to show cause. Dept. of Public Welfare v. Alessi, 119 Pa.Cmwlth. 160, 163, 546 A.2d. 157, 158 (1988), allot. den. 524 Pa. 623, 571 A.2d. 385 (1989). 11. Because Trustee's executor did not answer the Rule, the Court can make the Rule absolute. 12. Moreover, the substantive basis of the Preliminary Objection of Trustee's executor is unfounded in the law. Petitioner, a beneficiary of the Trust, seeks to hold the Estate of Chazles J. Rife responsible for breaches of trust committed by this decedent during his lifetime. 13. The Executor is the proper party to defend against these claims. 20 Pa.C.S. §3373; Bartlett Est., 22 Fid. Rptr. 2d. 341 (C.P. Allegheny 2002), app. quashed 817 A.2d. 1189. "It is well settled that all actions that survive a decedent must be brought by or against a personal representative." Marzella v. King, 256 Pa. Super. 179, 181, 389 A.2d. 659, 660 (1978). 14. Even if, arguendo, the beneficiaries of the deceased Trustee's estate were indispensable parties, the correct remedy would be to join them, not to dismiss the Motion, as requested by the Executor. Pa.R.C.P. 1032(b). 15. However, the beneficiaries are not proper parties. Marzella, supra. They cannot be found liable, and, therefore, cannot be joined as additional defendants. Pa.R.C.P. 2252 (a). 16. Rather, the proper parties to the Trust litigation are Fred H. Junkins, as Executor for the deceased Trustee and the residual beneficiaries of the Edith S. Rife Trust, all of whom have been served with the Petition, the Motion, and the Rule, as required by the Rules of Court. 17. The Executor failed to file his Account as directed by the Court. He failed to answer the Rule, as directed by the Court. Instead of an answer, he filed a preliminary objection not allowed by law, and without substantive basis. 18. The Court can make the Rule absolute. Tonuci v. Lennon, 13 D&C 2d. 791 (C.P. Philadelphia 1958). WHEREFORE, John W. Maxwell requests this Honorable Court to overrule the Preliminary Objections filed by Fred H. Junkins, Executor, and to make the Rule absolute. Respectfully Submitted, J es .Cameron Att ey LD. No. 58998 1325 North Front Street Harrisburg, PA 17102 (717) 236-3755 Attorney for Petitioner, John W. Maxwell CERTIFICATE OF SERVICE I, JAMES D. CAMERON, Attorney for John W. Maxwell, hereby certify that I have served a true and correct copy of the foregoing Preliminary Objection to Preliminary Objections of the Executor of the Estate of Charles J. Rife by first class mail, postage pre- paid, this 9th day of December, 2011, addressed as follows: Murrell R. Walters, III, Esq. 54 East Main Street Mechanicsburg, PA 17055 Attorney for Fred H. Junkins, Executor Steven A. Maxwell 3141 North 350 E Huntington, IN 46750 Sheri Maxwell 7838 CR452 Cross Plains, TX 76443 Douglas Maxwell 112 Park Road Cresswell, NC 27928 Barry Maxwell 305 Singing Hills Drive Pittsboro, NC 27312 / "~-.._ J es .Cameron A ey I.D. No. 58998 1325 North Front Street Harrisburg, PA 17102 (717) 236-3755 Attorney for John W. Maxwell