HomeMy WebLinkAbout12-19-11IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
In the Estate of No. 21-11-68
MARLIN L . MARSH, ` ~~'
a/k/a MARLIN LEROY MARSH, ~ - -r~~,
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late of South Middleton Township, : _~~ - ~
Cumberland County, Pennsylvania, _~~T ~ `~~'
deceased - - -7, ~~;
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PETITION FOR REMOVAL OF SUSAN ANN RUHN AS CO-ADMINIS `~ OR `-'-'
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1. Your Petitioner is Judy Ann Estill, an adult individual
who resides at 2829 South Queen Street, Dallastown, Pennsylvania
17313.
2. The Respondent to the within Petition is Susan Ann
Kuhn, an adult individual who resides at 151 South East Street,
Carlisle, Pennsylvania 17013.
3. A third interested party in this matter is Brenda Sue
Slaybaugh, an adult individual who resides at 8 Thornhill Court,
Carlisle, Pennsylvania 17015.
4. The decedent, Marlin L. Marsh, died intestate on
November 27, 2010, leaving to survive him three daughters, who
are identified above.
5. On January 14, 2011, the Register of Wills of
Cumberland County, Pennsylvania, granted letters of
administration to Ms. Estill and Ms. Kuhn. Ms. Slaybaugh
renounced her right to administer in favor of Ms. Estill and Ms.
Kuhn.
6. In the course of the administration of this Estate, Ms.
Kuhn on a number of occasions expressed an interest in purchasing
the real estate of the Estate, but the parties were unable to
agree as to a value for such a purpose. Throughout the
administration of this Estate, Ms. Kuhn has become increasingly
difficult for Ms. Estill to communicate with, and at times has
isolated herself from all communications. This has made it
impossible on many occasions for decisions to be made in a co-
equal manner as needed for the administration~of this Estate to
continue. It is believed that these difficulties were as a
result of Ms. Kuhn's conflicted interests between the Estate and
the real estate.
7. During the initial administration, the Estate was
solely represented by Marc Roberts, Esquire. More recently,
through efforts of the parties to have communications which would
be effective to allow the administration to continue, David A.
Baric, Esquire, entered his appearance in the Estate as counsel
for Ms. Kuhn, while Attorney Roberts continued to represent the
interests of the Estate. This has ended following the
communications between counsel of December 7 through December 9,
2011, which are referenced later in this Petition, as Mr. Baric
has now withdrawn his appearance.
8. Because of the inability of the two Co-Administrators
to communicate, the real estate and personal property of the
Estate were not effectively marketed in a timely manner, and the
Estate, being essentially without liquid assets, was unable to
prepare or file a timely Pennsylvania Inheritance Tax return or
pay its inheritance taxes. The normal time for filing this
return has passed, and Attorney Roberts has regularly reminded
the Co-Administrators of a need to proceed with the
administration to address the Estate's inheritance tax burden and
the interest which is now accumulating on the tax.
9. Through the joint efforts of Attorney Roberts and
Attorney Baric, a meeting was scheduled in the office of Attorney
Baric on October 11, 2011, at which time it was expected that
both counsel, both Co-Administrators, and an auctioneer proposed
by Mr. Baric, Kevin M. Wickard, would appear. All parties except
Ms. Kuhn appeared. Ms. Slaybaugh was also in attendance. The
meeting proceeded with Attorney Baric speaking for Ms. Kuhn. A
tentative agreement was reached to employ Mr. Wickard to conduct
an auction of the Estate real estate and personal property, but
this agreement by necessity was subject to the execution of a
written auction contract and agreement to the proposed auction
date of November 26, 2011. Ms. Estill has signed the written
agreement at this meeting and awaited the signature of Ms. Kuhn.
10. Despite regular requests after the aforesaid meeting,
Ms. Kuhn failed to execute the auction contract until she was
under threat of the filing of a petition to remove her as a co-
administrator, and which point her signature on the auction
contract was in fact provided.
11. The real estate of the estate was offered at public
auction on November 26, 2011, at which time Ms. Kuhn joined by
her stepfather and mother, Charles Yana and Dorothy Yana, were
the successful bidders.
12. A copy of auction contract for the sale and purchase of
the real estate is attached hereto as Exhibit A.
13. Mr. Yana indicated that the three co-purchasers would
use the settlement services of Attorney Baric in order to close
within the time required by the auction contract and,
accordingly, beginning immediately, Attorney Roberts began
2
communications with the office of Attorney Baric to prepare for
and schedule a settlement.
14. Despite the provision of the auction contract that
possession was to be made available to the buyer at settlement,
immediately following the auction, Ms. Kuhn began to exercise
sole control over the real estate. This included clean up of the
property, removal of trees, shrubbery and overgrowth,
installation of a porch swing and, upon information and belief,
interior painting. Ms. Estill, though aware of these activities,
did not think they were sufficient concerns to raise objections,
but did expect a desire to Ms. Kuhn that if she were going to
exercise such control, she take the utility bills for the
property into her own name. Accordingly, in the belief that Ms.
Kuhn had so agreed, Ms. Estill notified the electric company for
the property to discontinue service, under the assumption that
Ms. Kuhn would concurrently request service in a new name.
15. To the surprise of Ms. Estill, Ms. Kuhn did not
establish an electric service account in a new name, and did not
communicate with her further about the matter, but on December 7,
2011, Attorney Baric faxed a letter to Attorney Roberts
purporting to terminate the agreement to purchase the property on
behalf of the purchasers, based upon the fact that the property
had been without electric service and without heat for a matter
of approximately two days. A copy of Attorney Baric's letter of
December 7, 2011, is attached hereto as Exhibit B. Attached as
Exhibits C and D are two letters of Attorney Roberts in response,
one proposing to restore the electric service and continue the
contract, and the second, dated December 9, 2011, confirming that
the electricity had, in fact, been restored and that there has
been no damage to the property in that no freezing temperatures
occurred within the property in the intervening days. The latest
response of Attorney Baric, dated December 9, 2011, is also
attached as Exhibit E.
16. Despite the requests set forth in the correspondence of
Attorney Roberts, there has been no indication of whether Ms.
Kuhn intends to continue or to withdraw as a Co-Administrator.
17. It appears that Ms. Kuhn is in an adversarial position
with the Estate as it is the position of Ms. Estill, which is
believed to be based upon sound factual and legal principles,
that there is no basis for a termination of the contract, and
that the deposit provided by Mr. and Mrs. Yana and Ms. Kuhn is
subject to forfeiture. It is believed, based upon Attorney
Baric's correspondence, that the position of Ms. Kuhn would be
that the deposit must be returned.
18. It is believed and
difficulty in the pursuit of
and obtaining the cooperation
averred that Ms. Estill will have
an alternative sale of the property
of Ms. Kuhn if she is permitted to
3
continue to serve as a Co-Administrator, based upon past
experience and present contractual dispute.
19. In the absence of an ability to engage in useful
communications with Ms. Kuhn, which is believed likely to
continue, Ms. Estill anticipates being unable to function in a
practical way as a Co-Administrator.
20. It is in the best interests of the administration of
the Estate and prompt payment of the Estate's inheritance tax
obligation to allow Ms. Estill to continue as a sole
administrator, to proceed with the an alternative sale of the
Estate real estate, and to complete all other functions of
administration.
21. The other interested party, Ms. Slaybaugh, is in favor
of the relief that is requested in the within Petition.
WHEREFORE, Judy Ann Estill requests that this Court remove
Susan Ann Kuhn from her capacity as a Co-Administrator, and
permit Judy Ann Estill to serve as the sole personal
representative of the Estate of Marlin L. Marsh to its ultimate
completion.
Respectfully submitted,
G/~' / rk„
Marc Roberts, Esquire
Attorney for Judy Ann Estill
Petitioner
149 East Market Street
York, PA 17401
(717) 843-1639
I.D. No. 34355
4
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
In the Estate of No. 20-11-68
MARLIN L. MARSH, .
a/k/a MARLIN LEROY MARSH .
late of South Middleton Township,
Cumberland County, Pennsylvania,
deceased
VERIFICATION
I, JUDY ANN ESTILL, do hereby verify that the facts set
forth in the foregoing pleading are true and correct to the best
of my personal knowledge or information and belief, and that any
false statements herein are made subject to the penalties of
Section 4904 of the Crimes Code (18 Pa.C.S. Sec. 4904) relating
to unsworn falsification to a " ' ' " '
Date: December 15 2011
AUCTION OF REAL ESTATE
OF
ESTATE OF MARLIN L. MARSH
November, 26, 2011
CONDITIONS OF SALE
1. This sale is made by Judy Ann Estill and Susan Ann Kuhn, Co-
Administrators of the ESTATE OF MARLIN L. MARSH.
2. The real estate being sold is known as 340 Oxford Road, South
Middleton Township, Cumberland County, Gardners, Pennsylvania
17324 (UPI No. 40-40-2654-021) and is described as appears in
Appendix "A." The Seller's deed of conveyance shall be based
upon this legal description. Any survey of the property
required by the Buyer shall be solely at the Buyer's expense .
3. This sale is made with reserve. Unless it is announced by the
auctioneer that the property will be sold absolutely on this
date, the Seller reserves the right to reject any and all
bids. The Seller also reserves the right to specify the
:incremental amount of each successive bid. Upon the
auctioneer's announcement that the reserve has been removed,
at the conclusion of bidding, the highest bidder shall be
deemed to have purchased the property.
4. Seller warrants that the title shall be free and clear of all
liens and encumbrances and that title is good and marketable,
excepting only existing building restrictions, easements, and
other like matters of record.
5. The following expenses of the property shall be prorated as of
the date of settlement:
County and Township/calendar year basis;
School taxes/fiscal year basis;
Municipal Refuse charges, if any, as billed.
6. The cost of State and Local Transfer Taxes shall be divided
equally, 1% to Seller and 1% to Buyer.
7. Ten (10%) percent of the purchase price shall be paid in the
form of cash or approved check on this date. In the event of
a default by the Buyer in the performance of the contract to
buy the property, this down payment shall be non-refundable.
8. Seller agrees to execute and deliver a special warranty deed
to the property upon payment of the balance of the sales price
on the date of settlement.
EXHIBIT A
9. Settlement shall be within thirty (30) days of this sale date.
Possession shall be given to the Buyer on the date of
settlement.
10. The risk of loss to the premises shall shift to the Buyer at
the time the auctioneer declares the property to be sold. ~ke-~
Csettle~n~-.~
11. The announcements made in these Conditions of Sale supersede
and take precedence over any conflicting statements made in
prior advertising or showings of the property or at any other
time.
12. The real estate and improvements thereon are being sold AS IS.
Each bidder shall rely upon his or her own inspection of the
property in determining whether and in what amount to bid.
Any information furnished by anyone acting on the Seller's
behalf relating to the condition or value of the property has
been provided solely as a courtesy to facilitate the bidder's
own inspection, and shall not be relied upon or constitute a
warranty as to the subject matter therein contained.
13. The Sellers are selling this property in a fiduciary capacity
and lack the personal knowledge necessary to complete a
Seller's Disclosure Statement.
UDY TILL, CtY AdminiS'~rator
f t e MA' IN L. MARSH ESTATE
SAN ANN KUHN, Co-Administrator
of the MARLIN L. MARSH ESTATE
IT IS HEREBY AGREED BY AND BETWEEN Judy Ann Estill and Susan
Ann Kuhn, Co-Administrators of the ESTATE OF MARLIN L. MARSH,
hereina€ter referred to as "Seller", and
Name (s) ~/as desi#ed on deed) f~~`~
1 c ~ ~ Z°~J Z-~ rQ ~ ,
Ad ress - Telephone
hereinafter referred to as "Buyer," that the Buyer has agreed to
buy and Seller has agreed to sell the property described in
~' ~,
Appendix "A" for the sum of:
Dollars ($ ~~'"~D'~ ) .
The attached "Conditions of Sale" shall be the terms of this
agreement, to be observed and fulfilled by the parties in all
respects.
On this date, ten (100) percent of ,that sum:
/--~ l G.~t~%~-ty`~'d~ %'~. G ~l ~``Z,~'~"t. D o 11 a r s ( $ ~S ~,~ ,
has been paid to the Seller in partial payment of this purchase,
INTENDING TO BE LEGALLY BOUND HEREBY, we have hereunto set our
hands and seals on November 26, 2011.
r ~ ~" ~t:~a~'
ESTILL, Co-Administrator, BUYER
S SAN ANN KUHN, Co-Administrator,
SELLER
BUYER
BUYER'S ATTORNEY:
Appendix "A"
ALL that certain tract of land situate in SOUTH MIDDLETON TOWNSHIP,
County of Cumberland and State of Pennsylvania, bounded and
described as follows:
BEGINNING at a point in a public road which point is also a corner
of land now or formerly of Eugene Marsh; thence along land now or
formerly of the said Eugene Marsh South 69 degrees East, a distance
of 217.7 feet to an iron pin; thence along land now or formerly of
Calvin G. Cook and Alice K. Cook, husband and wife, South 22
degrees 45 minutes East, a distance of 123.0 feet to an iron pin;
thence by the same South 23 degrees 15 minutes West, a distance of
347.0 feet to an iron pin; thence by the same and land now or
formerly of William J. McCartney and Alice McCartney, husband and
wife, North 69 degrees West, a distance of 310.4 feet to a point in
the center of the said public road; thence along the center of said
public road North 23 degrees 15 minutes East, a distance of 430.0
feet to a point, the place of BEGINNING.
BEING improved with a one-story detached single family dwelling
known and numbered as 340 Oxford Road, Gardners, Pennsylvania.
IT BEING the same premises which Ronald E. Marsh, Executor of the
Kathleen M. Brandt Estate, deceased, and Ronald E. Marsh and Robert
V. Marsh, residuary beneficiaries of the Estate of Kathleen M.
Brandt, by their deeds dated May 17, 2005, and recorded in the
Office of the Recorder of Deeds of Cumberland County, Pennsylvania,
in Record Book 268, page 4585, granted and conveyed unto Marlin L.
Marsh, single man, who died seized thereof.
BARK
Attorneys at Law
SC~ERER
.LLC
David /l. Banc
Michael n. Scherer
Trr'cia D. Nr~yfor
8ref P. Shaffer
V1tA FACSIMILE (717) 845-8700
Marc Roberts, Esquire
149 East Market Street
York, Pennsylvania 17401
RE: Estate of Marlin Marsh
Dear M.r. Roberts:
19 West South. Street
Carlisle, Pennsylvania 17013
(79.7) 249-6873
(717) 249-5755 -Fax
dbaric~bAricschErcx.com
December 7, 2011
I am informed Charles and Dorothy Yana and Susan Huhn have elected to terminate the
Agreement to purchase the real property of. the estate.
This termination b.a,5 been caused by the unilateral, action o.f. Judy Estill in contacting the
eleetri,c utility p.r,ovider, Met Ed, on November 28, 201.1 and requesting cessation of power to the
property. As a result, th.e building has been without heat since that t7me. Presently, there is no
electric power, no insurance and one-quarter of a tank of oil remainingfor the heating systerr~.
Please forward a check from th.e estate for the down payment,
DAB/j 1
cc: Charles anal. Dorothy Yana
Susa.n.Kuhn
File
dab.di r/rea lectate/y9 na/oafordroad/ro berts5.ltr
Very tn11y youxs,
BARK SCHERER LLC
David A. Barie, Esquire
EXHIBIT B
LAW OFFICE OF MARC ROBERTS Marc Roberts, Esquire
Sarah E. Buhite, Esquire
Kathryn Nonas-Hunter, Esquire
149 East Market Street Telephone (7171 843-1639
York, Pennsylvania 17401 Facsimi/e (7171 845-8700
December 7, 2011
David A. Baric, Esquire
BARK SCHERER
19 West South Street
Carlisle, PA 17013
Fax 717/24-5755
Re: Estate of Marlin L. Marsh
Dear David:
I hope your clients are not serious in thinking that they can
terminate their agreement over something as trivial as a mistake in
the provider of electric service. Obviously, there was some
misunderstanding between Judy and Susan about Susan's intent to
exercise control over the property. I am aware of no damage which
has been done and do not believe that any will be done until the
electricity and heat are restored. Judy will undertake to restore
electrical service to the property immediately, and will make sure
that the heat is functioning. She will examine the property to
make sure that there has been no damage. Even if any damage would
be found, the remedy would be for a repair, not a termination of
the contract to purchase the property.
No down payment monies will be returned. Your clients will be
expected to settle as required in the auction contract.
I hope this letter will be an end to unproductive dialogue between
these parties. It would also be nice if your client would remember
that she is also a co-administrator and should be acting in
cooperation with Judy in dealing with these kinds of matters,
including the effort to restore the power and heat, since she is
local and can do so much more easily than Judy can from York.
Sincerely,
( ~~ ~ -~-
-t~s ~.
Marc Roberts ~~ ~ ~-
MR/dasl ,~/tQ
cc: Judy Ann Estill t ~` r
~~~
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EXHIBIT C
LAW OFFICE OF MARC ROBERTS
Marc Roberts, Esquire
Sarah E. Buhite, Esquire
Kathryn Nonas-Hunter, Esquire
149 East Market Street
York, Pennsylvania 17401
Telephone (7171 843-1639
Facsimile (7171 845-8700
December 9, 2011
David A. BariC, Esquire
BARIC SCHERER
19 West South Street
Carlisle, PA 17013
Fax 717/249-5755
Re: Estate of Marlin L. Marsh
Dear David:
Judy has confirmed to me that the electricity is back on, the heat
is on, there is oil in the tank, and there is no damage. I will
need you to withdraw your notice of termination of the contract if
that is your client's position, otherwise I must take them
literally and regard them as in breach. They have been exercising
substantial possession and control of the property since the
auction, and while this may be tolerated if they are truly going to
assume liability and settle on the property, it must be regarded as
a breach of the terms of sale and must cease at once if they are
not going to settle.
We have no objection to their going forward with settlement in an
orderly manner or with you representing them in such a settlement,
but if you plan to represent them in any more adversarial positions
against the estate, I think you must withdraw your appearance as
co-counsel in the estate and Susan must withdraw as a co-
administrator, at least during the pendency of the dispute, due to
the obvious conflict of interest.
If a decision has been or is made that they cannot or will not
settle, I believe you have a duty to advise of that immediately.
If you have even a small concern, I believe the estate should be
investigating getting aback up contract before our one other known
interested party, the back bidder at the auction, finds another
property to buy.
S' cerel ,
Marc Roberts
MR/wp
cc: Judy Ann Estill
EXHIBIT D
B ARIL
Attorneys at Law
SCHERER
LLC
David A. Basic
Michael A. Sclxerer
~.
Tricia D. Naylor
Bret P. Slutffer
Marc Roberts, Esquire
149 E. Market Street
York, Pennsylvania 17401
RE: Estate of Marlin Marsh
19 West South Street
Carlisle, Pennsylvania 17013
(717) 249-6873
(717) 249-5755 -Fax
dbaric@baricscherer.com
December 9, 2011
Dear Marc:
I am informed the Yanas' and Susan Kuhn do not wish to close on the real property of the
estate for the reasons previously stated.
I will be filing to withdraw my appearance in the estate matter as it would appear there is a
potential for a conflict of interest.
Very truly yours,
BARIC SCHERER LLC
David A. Basic, Esquire
DAB/ar
cc: Charles and Dorothy Yana
Susan Kuhn
File
dab.dir/realestate/yang/oxfordroad/roberts6.ltr
EXHIBIT E
IN THE COURT OF COLON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
In the Estate of No. 21-11-68
MARLIN L. MARSH,
a/k/a MARLIN LSROY MARSH,
late of South Middleton Township,
Cumberland County, Pennsylvania,
deceased
CERTIFICATE OF SERVICE
I, MARL ROBERTS, ESQUIRE, attorney for Judy Ann Estill,
Petitioner, hereby certify that I have on the 16th day of
December, 2011, served the attached Petition by first class mail,
postage prepaid, upon the persons and to the addresses indicated
below:
Susan Ann Kuhn
151 South East Street
Carlisle, PA 17013
Brenda Sue Slaybaugh
8 Thornhill Court
Carlisle, PA 17015
~'t
MARL ROBER S, ESQUIRE