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HomeMy WebLinkAbout04-10-12j r n -_ ~ ~ _~ a , David A. Fitzsimons, Esquire ~ 1 -r_ ~ z ~ ~--- ~ - -r j MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER ? `_~ ~ ~ ~ ..__ MARTSON LAW OFFICES ~-~~ -~' ~ ';-7 - LD. 41722 ' -~' -~ - - 10East High Street ,. , =~ ~~.r~ ~ `_ Carlisle, PA 17013 ~~~ ~ ~ ~~ r_..: ~ (717) 243-3341 ~_ " Co-counsel for John W. Maxwell IN RE: EDITH S. RIFE TRUST IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION NO. 21-10-1006 NO. 21-11-0325 NO. 21-83-0773 REPLY TO NEW MATTER OF JOHN W. MAXWELL AND NOW, comes the Petitioner, John W. Maxwell, by and through his attorneys, and avers the following in response to the New Matter of the Executor: 1 - 12. The averments of paragraphs 1 through 12 of the Motion for Rule to Show Cause are reincorporated by reference and reasserted as if fully set forth. 13. Denied. The averments of paragraph 13 constitute conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. To the extent that a response is required, any "awareness" on the part of John W. Maxwell during the nineteen (19) year time frame identified in paragraph 13 of New Matter, is irrelevant to the matter at issue-whether the Court should find in favor of Petitioner on the issue of liability, reserving the question of damages for further consideration by the Court. 14. Denied. The averments of paragraph 14 constitute conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. To the extent that a response is required, the degree of "awareness" of John W. Maxwell regarding the provisions of the written Edith S. Rife Trust between the date of death of Edith Rife and 2002 is irrelevant to the matter of liability because it was not until the death of Charles Rife and the probate of his Will without an express exercise of the power of appointment contained in the Edith S. Rife Trust that the Petitioner acquired standing to proceed upon Dr. Rife's mismanagement of trust assets. ~~ 15. Denied. The averments of paragraph 15 constitute conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. To the extent that a response is required, any degree of "awareness" by John W. Maxwell implied in paragraph 15 of New Matter, is irrelevant to the matter at issue. Moreover, the assertions as stated in paragraphs 13-15 of New Matter do not provide any reasonable basis for making these assertions. 16. Denied. The averments of paragraph 16 constitute conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. To the extent that a response is required, it is specifically denied that Charles J. Rife was a "lay person" with respect to financial matters and did not possess sophisticated financial acumen. On the contrary, Dr. Rife throughout his lifetime held himself out to his relatives as an individual with a sophisticated understanding of financial matters and conducted sophisticated business transactions both within and without the family circle. Furthermore, having accepted the office of Trustee, he was bound to meet his duties as prescribed by law. 17. Denied. The averments of paragraph 17 constitute conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. To the extent that a response is required, it is denied that it would be necessary for John W. Maxwell to plead actual awareness on the part of Charles J. Rife as to the provisions of the Trust of which Dr. Rife was the Trustee. Knowledge of the provisions of the Trust is presumed in the Trustee. Moreover, Dr. Rife's actions in responding to the request from Bruce I. Maxwell upon the death of Catharine, his sister, and co-beneficiary of their mother, Edith Rife's Trust, by distributing the half of the Trust assets which inured to her benefit to the Graybill (Indiana) Bank, demonstrates that on at least one occasion, Dr. Rife had the opportunity to read, comprehend and take action consistent with the terms of the Edith S. Rife Trust. 18. Denied. The averments of paragraph 18 constitute conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. To the extent that a response is required, at no time during the four years prior to the death of Charles J. Rife did John W. Maxwell undertake any action utilizing any durable general power of attorney. 19. Denied. The averments of paragraph 19 constitute conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. To the extent that a response 2 is required, until the death of Charles Rife and the probate of a Will in which Dr. Rife did not specifically exercise the power of appointment contained in the Edith S. Rife Trust, John W. Maxwell had only an inchoate interest in the Trust, and lacked standing to bring an action regarding the administration of the Trust. 20. Denied. The averments of paragraph 20 constitute conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. To the extent that a response is required, Charles J. Rife was the Trustee of the Edith S. Rife Trust. What Petitioner John W. Maxwell might or might not have said to Trustee is not relevant to Trustee's duties and the finding of breach thereof that was the relief requested in the Motion for Rule to Show Cause. 21. Admitted. 22. Denied. The averments of paragraph 22 constitute conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. To the extent that a response is required, it was only upon the death of Charles J. Rife and the probate of his Will, which did not specifically exercise the power of appointment contained in the Edith S. Rife Trust, that Petitioner obtained standing, and that his counsel reviewed the file for his great-grandmother's Estate (given its relationship to the Trust). 23. Denied. The averments of paragraph 23 constitute conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. It was only upon the death of Charles J. Rife and the probate of his Will, which did not specifically exercise the power of appointment contained in the Edith S. Rife Trust, that Petitioner obtained standing to request a finding of liability. 24. Denied. The averments of paragraph 24 constitute conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. It was only upon the death of Charles J. Rife and the probate of his Will, which did not specifically exercise the power of appointment contained in the Edith S. Rife Trust, that Petitioner obtained standing to seek a surcharge for breach of fiduciary by the now-deceased Trustee. 25. Denied. The averments of paragraph 25 constitute conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. To the extent that a response is required, the Estate of Charles J. Rife stands in Dr. Rife's shoes with regard to his actions and 3 inactions as Trustee of the Edith S. Rife Trust, and his Estate cannot claim to be prejudiced by the actions or inactions of the decedent while he served as Trustee. Moreover, the circumstance in which the deceased Trustee's Estate finds itself is the direct result of his failure to transfer the Trust assets to the successor Trustee (now M&T Trust and Investment Services) named in the Revocable Trust document. The Estate succeeds to the unclean hands of its decedent. INDISPENSIBLE PARTIES 26. Admitted. 27. Admitted. 28. Admitted in part, denied in part. It is admitted that Petitioner has not attempted to make parties of the residual beneficiaries of the Estate (who are not beneficiaries of the Trust). It is denied that Petitioner has not served the other beneficiaries of the Trust who also happen to be beneficiaries under the Will of Charles J. Rife. By way of further answer, the record is clear that Petitioner has duly served all of the parties to the trust with his surcharge action, namely: the Executor, and Steven, Sherri, Douglas and Barry Maxwell. 29-32. Denied. The averment of paragraphs 29-32 constitute conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. To the extent that a response is required, the Court of Common Pleas of Cumberland County Orphans' Court Division, Albert H. Masland, Presiding Judge, by Order of March 7, 2012, sustained Preliminary Objections of John W. Maxwell to Executor's Preliminary Objections which raised this issue; thereby the Court's rejection of this theory of the Executor constitutes law of the case. 4 WHEREFORE, Petitioner, John W. Maxwell, respectfully prays that Your Honorable Court will dismiss the New Matter of the Executor and award the relief requested by John W. Maxwell in the Motion for Rule to Show Cause, together with such award of any other relief that the Court deems just and reasonable under the circumstances. Respectfully submitted, MARTSON LAW OFFICES By ~ David A. Fitzsimons, Esquire 10 East High Street Carlisle, PA 17013 (717) 243-3341 James D. Cameron, Esquire 1325 North Front Street Harrisburg, PA 17102 Date: April 10, 2012 (717) 236-3755 Attorneys for Petitioner John W. Maxwell 5 VERIFICATION I, John W. Maxwell, hereby verify that I have reviewed the foregoing document and state that to the extent that the Reply to New Matter contains facts supplied by or known to me, they are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S.A. §4904, relating to unsworn falsification to authorities. ~~ J ! .~ ~ John .Maxwell r CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson Deardorff Williams Otto Gilro & Faller, hereby certify that a copy of the foregoing Reply to New Matter was served this daty by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addres e as follows: sed Murrell R. Walters, III, Esquire 54 East Main Street Mechanicsburg, PA 17055 (Attorney for Fred H. Junkins) Wayne F. Shade, Esquire 53 West Pomfret Street Carlisle, PA 17013 (Attorney for Fred H. Junkins) Craig A. Diehl, Esquire LAW OFFICES OF CRAIG A. DIEHL 3464 Trindle Road Camp Hill, PA 17011 (Attorney for Mr. Steven Maxwell, Ms. Sheri Maxwell, Mr. Douglas Maxwell and Mr. Barry Maxwell) MARTSON LAW OFFICES ^~ ~=~ ' ~ ~ r_ ~~, Tricia D. Eck~nroad Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: April 10, 2012 F:\FILES\Clients\14654 Maxwell, J\14654.1.Reply to New Matter.doc 6