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HomeMy WebLinkAbout10-10-12ESTATE OF FLORENCE M. FASICK, DECEASED n +~:.:.a Q r~,i C~'~ CT 1 ~ . ~ ~--Y4 I? •~ _ G.- _ :_.J - IN THE COURT OF COMMON ~~;EAS C~ CUMBERLAND COUNTY, PEN~FLVANI~A . ~ .. ORPHANS' COURT DIVISION c~ FILE NO. 21-12-0271 RESPONSE OF THE ESTATE OF FLORENCE M. FASICK, DECEASED, TO THE PETITION OF ELIZABETHTOWN COLLEGE FOR DISCOVERY The Estate of Florence M. Fasick, deceased, by and through its Executor, James D. Bogar, makes the following response to the Petition of Elizabethtown College for Discovery Relating to Decedent's Prior Wills and in support thereof, avers as follows: 1. Admitted. 2. Admitted. 3. The averments of paragraph 3 are conclusions of law to which a response is not necessary. To the extent that a response to paragraph 3 is required, it is denied that the College has standing to seek discovery as a beneficiary under Mrs. Fasick's Will, particularly in light of the fact that a will contest has not been offered. 4. Admitted in part and denied in part. It is admitted that Diane Montgomery of the Law Offices of James D. Bogar contacted Elizabethtown College, being eventually referred to Elizabeth Dahmus, all relating to a client who was contemplating a testamentary gift to the nursing program of Elizabethtown ~.~, '~ t'-? __ --~ =~== ~ ~ rr-~ ~:~ C7 "r-t //lV College. It is denied that any reference was made by Diane Montgomery to the size or nature of the testamentary gift. 5. Denied. It is denied that Diane Montgomery at any time disclosed, directly or indirectly, any specifics pertaining to Mrs. Fasick. 6. Admitted in part and denied in part. It is admitted that Mrs. Fasick and her daughter, Nancy Lee Grady, a/k/a Nancy L. Grady, are graduates of Elizabethtown College. Nancy Lee Grady, a/k/a Nancy L. Grady, died June 15, 2009, with Letters of Administration having been granted on June 30, 2009 by the Register of Wills of Dauphin County, at File No. 2209-0627. 7. Admitted in part and denied in part. By email dated June 17, 2009, Ms. Dahmus contacted Diane Montgomery. The email advises, inter alia, that Elizabethtown College does not have a nursing program and that consideration be given to establishing an endowed scholarship or an endowed research fund. A copy of the June 17, 2009 email from Elizabeth A. Dahmus is attached hereto, marked Exhibit "A", and incorporated herein. 8. Denied. Respondent is without sufficient knowledge or information to respond to the averments of paragraph 8, and, therefore, these averments are denied and proof thereof is demanded. 9. Admitted. 10. Denied. Respondent is without sufficient knowledge or information to respond to the averments of paragraph 10, and, therefore, these averments are denied and proof thereof is demanded. 11. Denied. Respondent is without sufficient knowledge or information to respond to the averments of paragraph 11, and, therefore, these averments are denied and proof thereof is demanded. 12. Denied. Respondent is without sufficient knowledge or information to respond to the averments of paragraph 12, and, therefore, these averments are denied and proof thereof is demanded. By way of further response, a diligent search and review of the personal effects of Mrs. Fasick completed during the course of the administration of this Estate failed to reveal any copies of the Elizabethtown College Alumni magazine referred to in Exhibit "A". 13. Admitted. The article speaks for itself. 14. Denied. Respondent is without sufficient knowledge or information to respond to the averments of paragraph 14, and, therefore, these averments are denied and proof thereof is demanded. 15. Denied. Respondent is without sufficient knowledge or information to respond to the averments of paragraph 15, and, therefore, these averments are denied and proof thereof is demanded. 16. Admitted. 17. Admitted in part and denied in part. It is admitted that the August 5, 2011 Will leaves 10% of Mrs. Fasick's residual estate to the College. The Will also makes three (3) specific bequests to three (3) different individuals, as well as the following residuary bequests: 5o to Bethesda Mission; loo to Elizabethtown College; 35a to the Nursing Foundation of Pennsylvania; and 50o to Peter Montgomery. Furthermore, all beneficiaries under the Last Will and Testament of Mrs. Fasick should be provided with a copy of the Petition of Elizabethtown College for Discovery relating to Decedent's prior Wills and afforded a full opportunity to respond, become a part of and participate in any and all proceeding flowing therefrom. 18. Admitted in part and denied in part. It is admitted that the August 5, 2011 Will leaves 100 of Mrs. Fasick's residual . estate to the College. The Will also makes three (3) specific requests to three (3) different individuals, as well as the following residuary bequests: 5o to Bethesda Mission; loo to Elizabethtown College; 35o to the Nursing Foundation of Pennsylvania; and 50o to Peter Montgomery. Furthermore, all beneficiaries under the Last Will and Testament of Mrs. Fasick should be provided with a copy of the Petition of Elizabethtown College for Discovery relating to Decedent's prior Wills and afforded a full opportunity to respond, become a part of and participate in any and all proceeding flowing therefrom. 19. Admitted in part and denied in part. Upon information and belief, Peter Montgomery acted as Mrs. Fasick's agent under a Power of Attorney from January 2011, all at the express request and authorization of Mrs. Fasick. Respondent is without sufficient information to fully and completely respond to the averments of Paragraph 19. 20. Admitted in part and denied in part. Respondent is without sufficient information to fully and completely respond to the averments of Paragraph 19. Whether a confidential relationship existed and, further, whether that confidential relationship was abused or misused in any way is a conclusion of law to which no response is required. 21. Admitted. 22. Admitted in part and denied in part. It is admitted that Kendra McGuire, Esquire, contacted James D. Bogar by telephone on May 2, 2012. Ms. McGuire stated, inter alia, the following: that she wished to establish a dialogue only; that Diane Montgomery in her June 2009 telephone call with Elizabeth Dahmus stated that Mrs. Fasick wanted to leave 980 of her Estate to the College and that the expectations of Elizabethtown College were not realized; that Diane Montgomery was related to Peter Montgomery, a residuary beneficiary (which is not true). 23. Admitted. The May 9, 2012 letter of Kendra McGuire, Esquire, speaks for itself . 24. Admitted. A time-stamped copy of the inventory was provided per the prior request of Kendra McGuire, Esquire, as set forth in her letter of May 9, 2012, a copy of which is attached as Petitioner's Exhibit "B". 25. Admitted in part and denied in part. It is admitted that copies of prior wills were not supplied. The averments of paragraph 25 to the extent that they can be interpreted as an obligation to provide copies of prior wills, are conclusions of law to which no responsive pleading is required. To the extent that a response is required, it is denied that an obligation exists to provide copies of prior wills. 26. Admitted in part and denied in part. The letter of June 5, 2012 speaks for itself. Respondent is without information sufficient to respond to the allegations as to "why the gift that was so often discussed by Mrs Fasick was not included in her will", thus resulting in the expectations and hopes of Elizabethtown College not being realized. 27. Admitted in part and denied in part. It is admitted that copies of prior wills were not supplied. The averments of paragraph 27 to the extent that they can be interpreted as an obligation to provide copies of prior wills, are conclusions of law to which no responsive pleading is required. To the extent that a response is required, it is denied that an obligation exists to provide copies of prior ills. 28. Admitted. The letter of July 9, 2012 speaks for itself . 29. Admitted in part and denied in part. It is admitted that a telephone discussion took place on July 27, 2012 by and between Kendra McGuire, Esquire, and Respondent, same being initiated by Respondent. The allegations of paragraph 29 are denied. 30. Admitted in part and denied in part. It is admitted that on July 17, 2012 Respondent requested Kendra McGuire, Esquire, to provide legal authority demonstrating the entitlement of Elizabethtown College to receive copies of prior wills, given that a will contest was not proposed. By way of further answer, the Doctrine of Attorney-Client Privilege would prohibit the release of copies of prior wills. 31. Denied. Respondent, in the July 17, 2012 telephone conversation, indicated that the Office of Attorney General would undoubtedly be involved should Elizabethtown College seek to move forward by bringing a will contest or making a request for production of prior wills. 32. Denied. Respondent has not been provided with a copy of the July 26, 2012 letter forwarded by Kendra McGuire, Esquire to the Attorney General's Office. By way of further response, Respondent was not requested to or invited to participate in any telephone conversations that were unilaterally initiated by Kendra McGuire, Esquire with the Office of the Attorney General. 33. Admitted in part and denied in part. The letter of August 28, 2012 speaks for itself. It is denied that the citations included therein support Elizabethtown College's right to obtain copies of prior wills. 34. Denied. The August 28, 2012 letter speaks for itself. By way of further response, the response to paragraph 32, as set forth hereinabove, is incorporated herein. It is respectfully suggested that the Office of Attorney General may take a different position than that referred to in the August 28, 2012 letter, as a result of being afforded an opportunity to receive and review all pertinent facts surrounding the August 5, 2011 Last Will and Testament of Mrs. Fasick. 35. Admitted in part and denied in part. It is admitted that copies of prior wills were not supplied. The averments of paragraph 35 to the extent that they can be interpreted as an obligation to provide copies of prior wills, are conclusions of law to which no responsive pleading is required. To the extent that a response is required, it is denied that an obligation exists to provide copies of prior wills. The August 28, 2012 letter speaks for itself. 36. Admitted in part and denied in part. The August 31, 2012 letter from Michael Foerster, Senior Deputy Attorney General, Charitable Trusts & Organizations, speaks for itself. By way of further response, it is respectfully suggested that the Office of Attorney General may take a different position as referred to in the August 31, 2012 letter, as a result of being afforded an opportunity to receive and review all pertinent facts surrounding the August 5, 2011 Last Will and Testament of Mrs. Fasick. 37. Admitted in part and denied in part. The August 31, 2012 letter from Michael Foerster, Senior Deputy Attorney General, Charitable Trusts & Organizations, speaks for itself. It is respectfully suggested that the Office of Attorney General may take a different position as referred to in the August 31, 2012 letter, as a result of being afforded an opportunity to receive and review all pertinent facts surrounding the August 5, 2011 Last Will and Testament of Mrs. Fasick. 38. Admitted in part and denied in part. The letter of August 28, 2012 speaks for itself. It is denied that the citations included therein support Elizabethtown College's right to obtain copies of prior wills. 39. Admitted. Respondent, in accordance with his fiduciary obligations with respect to estate administration, promptly collected and moved forward with respect to distributing assets, all in accordance with the Last Will and Testament of Mrs. Fasick. The prompt filing of a First and Final Account is an integral obligation in the estate administration process. 40. Admitted in part and denied in part. The September 11, 2012 letter from the Respondent speaks for itself. Respondent has an obligation to move forward with respect to the administration of the Estate and, further, to advise all beneficiaries as to the status of administration of the Estate. By way of further response, Respondent advised Michael T. Foerster, Senior Deputy Attorney General, as to his concerns with respect to the attorney-client privilege and the work product doctrine, same occurring in a telephone conversation on September 10, 2012, which telephone conversation was invited by Mr. Foerster. Furthermore, Respondent previously declined to provide copies of prior wills. 41. Denied. The averments of paragraph 41 are conclusions of law to which no response is required. To the extent that a response is required, Petitioner's averments stating that the attorney-client privilege does not apply are denied. 42. Denied. The averments of paragraph 42 are conclusions of law to which no response is required. To the extent that a response is required, Petitioner's averments stating that the work client product privilege does not apply are denied. 43. Denied. The averments of paragraph 43 are conclusions of law to which no response is required. To the extent that a response is required, it is specifically denied that Respondent, as Executor of the Estate, has the ability to waive the application of any privilege, absent permission and consent from all beneficiaries of Mrs. Fasick's Will. 44. Denied. The averments of paragraph 44 are conclusions of law to which no response is required. To the extent that a response is required, it is denied that Mrs. Fasick was or may have been unduly influenced in the making of her Will dated August 5, 2011 and, furthermore, proof thereof to the contrary is demanded. Furthermore, neither Elizabethtown College, any other named beneficiary, or any other party or person, has brought forth a will contest. 45. Admitted. 46. Admitted. WHEREFORE, the Estate of Florence M. Fasick, through its Executor, James D. Bogar, respectfully requests that the Petition of Elizabethtown College for Discovery Relating to Decedent's Prior Wills be dismissed, with prejudice, and, furthermore, that the cost of these proceedings be assessed fully and completely to Elizabethtown College. Respectfully submitted, Date : (~~~ t Z J mes D. Bo a Executor Of the Estat of Florence M. Fasick One West Main Street Shiremanstown, PA 17011 (717) 737-8761 VERIFICATION I, James D. Bogar, verify that the statements made in this Response of the Estate of Florence M. Fasick to Petition of Elizabethtown College for Discovery Relating to Decedent's Prior Wills and New Matter are true and correct. I understand that unsworn statements herein are made subject to the penalties of 18. Pa. C.S.A. ~ 4904, relating to unsworn falsification to authorities. Date: October 10, 2012 J es D. Bo a CERTIFICATE OF SERVICE I hereby certify that I am this day serving the foregoing Response of the Estate of Florence M. Fasick to Petition of Elizabethtown College for Discovery Relating to Decedent's Prior Wills and New Matter upon the following persons, by mailing same by first-class U.S. mail, postage prepaid, as follows: Debra P. Fourlas, Esquire MCNEES, WALLACE & NURICK 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 Kendra McGuire, Esquire MCNEES, WALLACE & NURICK 570 Lausch Lane, Suite 200 Lancaster, PA 17601 Michael T. Foerster, Sr. Deputy Attorney General Charitable Trusts and Organizations Section Pennsylvania Office of Attorney General 14th Floor, Strawberry Square Harrisburg, PA 17120 Virginia Bone 126 Clearview Drive Camp Hill, PA 17011 Marianna Davis 2300 Dulaney Valley Road, Apt. C004 Timonium, MD 21093 Marcia M. Montgomery 660 Bamberger Road Etters, PA 17339 Bethesda Mission 611 Reilly Street Harrisburg, PA 17102 Nursing Foundation of Pennsylvania 2578 Interstate Drive Suite 101 Harrisburg, PA 17110 Peter Montgomery 660 Bamberger Road Etters, PA 17339 Date: October 10, 2012 Page 1 of 2 Diane Montgomery From: Dahmus, Elizabeth A [dahmuse@etown.edu] Sent: Wednesday, June 17, 2009 11:00 AM To: Diane Montgomery Subject: Follow-up Email Hi Diane, Thank you for contacting us about your client's estate. As we discussed, at present the College does not have a nursing program. However, there have been whispers from time to time about re-establishing such a program. I cannot guarantee that this will happen, but it has been discussed. My suggestion, given that there is no specific nursing program, would be to consider establishing either a named endowed scholarship fund, or a named endowed research fund. The preference for both funds could be directed to nursing, should that program again exist, with secondary preference to other health-allied fields. At Elizabethtown College, we have a number of health related majors: • Doctor of Physical Therapy program, in which a student spends the first 3 years at Etown, followed by another 3 years at Jefferson -graduating with a Doctorate in Physical Therapy. • A Master's degree in Occupational Therapy, in which a student spends 5 years at Etown, and graduates with a Masters in Occupational Therapy. • A Pre-Med Primary Care program with the Hershey Medical Center, in which the student spends 4 years at Etown, and upon graduation automatically enrolls in the Hershey Med Center's Primary Care MD program. • In our Biology department, we offer Pre-Med study. • We have a Human Services major for social work. Thus, if your client established an endowed scholarship (assuming a minimum of $25,000 to endow a scholarship), the language for her will could read as follows: I give % of all the residue of my estate to Elizabethtown College, Elizabethtown, PA to establish the Endowed Scholarship Fund. First preference for this scholarship will be given to a student pursuing a nursing degree. If no such student is enrolled, second preference will be given to a student pursuing a degree in a health-care related field. Another idea, might be an endowment for student/faculty research. The opportunity for a student to participate in afaculty-mentor's research is invaluable to them in their personal and professional growth and achievement. We could target funds to support faculty-student health/nursing related research projects where the research involves a regional medical facility. For example, one project currently underway (funded by external grants) is investigating the question: Do intravenous antibiotics administered during delivery affect the development of infantile Atopic Dermatitis? This research is in partnership with Hershey Medical Center. Thus, if your client established an endowed research fund (again, assuming a minimum of $25,000,) the language could read: give _% of all the residue of my estate to Elizabethtown College, Elizabethtown, PA to establish the Endowed Research Fund. Grants from this fund will support faculty research involving students in health-related research projects. 6/ 17/2009 EXHIBIT a ~, :i r~ Page 2 of 2 If your client's estate will provide $50,000 or more for the College, both of these endowments could be created. These are two examples, I'm happy to talk to you or your client further, whenever convenient. Thank you for your assistance with this, and please extend our thanks to your client for her consideration of Elizabethtown College, and our students. Beth Dahmus Elizabeth Dahmus Executive Director, Gift Planning Elizabethtown College One Alpha Drive Elizabethtown, PA 17022 717.361.1545 717.361.1500 (fax) ~,--'~ Please consider the environment before printing this e-mail. 6/ 17/2009