HomeMy WebLinkAbout12-07-12Anthony L. DeLuca, Esquire
PA Supreme Court ID No. 1$067
113 Front Street
Boiling Springs, PA 17007
Ph: (717) 258-6844
IN RE: KATHLEEN M. KNISELY, IN THE COURT OF COMMON PLEAS OF
an incapacitated person CUMBERLAND COUNTY, PENNSYLVANIA,
ORPHANS' COURT DIVISION
N0.21-12-946
PETITION SEEHING CLARIFICATION OF SCOPE OF GUARDIANSHIP POWERS
AND RE VESTING THE COURT TO SUBSTITUTE ITS JUDGMENT FOR THAT OF
THE INCAPACITATED PERSON PURSUANT TO 20 Pa C.S. ~5536(b)
The Petitioners, James G. Knisely and Barbara Lynn Knisely, in their capacities as co-
guardians of the person of Kathleen M. Knisely, an incapacitated individual, ("Mrs. Knisely"),
and Bryn Mawr Trust Company ("BMTC")' plenary guardian of the Estate of Mrs. Knisely,
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jointly file this Petition Seeking Clarification of Scope of Guardianship Pourers and R~rest~~
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the Court to Substitute its Judgment for that of the Incapacitated Person Pz,~z~i~o 2~a. 7a
~5536(b), as follows: ~ ~ ~ ~ ~, ~
Procedural Background ~ c ~'~ _.W ~-~
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1. Petitioner James G. Knisely initiated the above-captioned pr~eeding o~ug'4i~t°Tj
31, 2012 with the filing of an Emergency Petition to Adjudicate Incapacitated and Appoint
Temporary Guardian of the Person and Estate seeking, inter alia, an emergency adjudication
I James G. Knisely, Barbara Lynn Knisely, and BMTC are collectively referred to herein as the "Petitioners:'
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that Mrs. Knisely is an incapacitated individual and appointing a guardian over Mrs. Knisely's
person and estate.
2. The Court held an initial hearing on August 31, 2012 before the Honorable
Edward E. Guido at which time the emergency relief requested was denied.
3. On October 4, 2012, Mrs. Knisely's son, James G. Knisely, filed a Petition for
Appointment of Permanent Plenary Guardians of the Person and Estate seeking, inter alia, an
adjudication that Mrs. Knisely is an incapacitated person and an appointment of permanent,
plenary guardians over Mrs. Knisely's person and estate.
4. The Court held a hearing on October 26, 2012. At the conclusion of the October
26, 2012 proceedings, the Court issued an Order vacating its denial of the emergency request for
appointment of guardians and appointing James G. Knisely and Barbara Lynn Knisely as
temporary co-guardians of Mrs. Knisely's person. BMTC was appointed as temporary guardian
over Mrs. Knisely's estate. The October 26, 2012 Order further scheduled a hearing to be held
on November l 5, 2012 to determine whether these guardianship appointments should be made
permanent.
5. Mark Bayley, Esquire was appointed to represent Mrs. Knisely.
6. After hearing, on November 15, 2012, the Court found that Mrs. Knisely was
indeed an incapacitated person and appointed James G. Knisely and Barbara Lynn Knisely as co-
guardians over Mrs. Knisely's person. BMTC was appointed as permanent, plenary guardian of
Mrs. Knisely's Estate.
Personal Background
7. Mrs. Knisely is 79 years old.
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8. Mrs. Knisely has five adult children. The names anal addresses of Mrs. Knisely's
children are as follows:
(a) Samuel Scott Knisely- son
135 Harmon Avenue -Unit 3705
Las Vegas, NV 89109
or
P.O. Box 19448
Las Vegas, NV 89132
or
897 Creek Crossing Trail
Whitsett, NC 27377
(b) Lee Ann Knisely Cast -daughter
485 Front Street
Louisville CO 80027
(c) Barbara Lynn Knisely, M.D. -daughter
3501 Sunset Drive
Madison, WI 53705
(d) James Grant Knisely -son
3822 Parmey Drive
Mechanicsburg, PA 17050
(e) Kathleen L. Knisely -daughter
9008 Avis Court
Vienna, VA 22182
9. Mrs. Knisely is a widow having been predeceased by her husband, Samuel W.
Knisely ("Dr. Knisely") on August 18, 1983.
10. T'he events leading up to the Petition for the appointment of guardians are set
forth in detail in the August 30, 2012 and the October 4, 2012 Petitions.
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11. Among the primary concerns was Mrs. Knisely's abduction by her eldest son,
Samuel Scott Knisely ("Scott"), in August of 2012 and Scott's attempts to access Mrs. Knisely's
finances.
12. The Petitioners submit that in or about January of this yeaz (2012), Mrs. Knisely
discovered that Scott had taken approximately $850,000.00 from Mrs. Knisely's funds using his
Power of Attorney.
13. Scott suffers from his own mental problems and as a result has not consistently
maintained employment since approximately 2002.
14. Without access to his mother's funds it is believed that Scott has become erratic
and desperate. He has threatened at various times to remove Mrs. Knisely from her
Wormleysburg home and take her to another state, as he did in August of 2012.
Mrs. Knisely's Financial Situation
Assets
15. As of the date of this Petition, Mrs. Knisely's estate consists of the following:
a. Investment Account at Janney Montgomery Scott, LLC with a value of
$8,038,204.55;
b. Individual Retirement Account at Janney Montgomery Scott, LLC with a value of
$92,854.50;
c. Stock in Cazlisle Corp, with a share value of $227,320.00;
d. Met Life Annuity with a face value of $340,000.00;
e. Bank account maintained at M&T Bank with a balance of $4,458.64 (as of
November 16, 2012)
f. Bank account maintained at M&T Bank with a balance of $42,Ob7.49 (as of
December 4, 2012);
g. Bank account maintained at Sun Trust Bank with a balance of $839,189.49 (as of
November 28, 2012); and
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h. Bank account maintained at Sun Trust Bank with a balance of $42,033.22 (as of
December 5, 2012).
16. In addition to the foregoing, Mrs. Knisely is the income beneficiary of a trust
established by Dr. Knisely by Trust Agreement dated May 25, 1971, as amended January 3, 1978
and January 21, 1982. The Samuel W. Knisely Trust is maintained at Mellon Bank and as of
September 1, 2012 had an account balance of $2,001,665.92.
17. Mrs. Knisely resides at 23 West Lawn Circle, Wormleysburg, PA, 17043 (the
"Residence")
18. The Residence is owned by the Kathleen M. Knisely Qualified Personal
Residence Trust ("QPRT") pursuant to a Trust Agreement dated June 5, 2012. Mrs. Knisely's
daughter, Kathleen L. Knisely is the Trustee of the QPRT. Pursuant to the terms of the QPRT
Agreement, Mrs. Knisely retained the right to live at the Residence for a period of ten (10) years.
Income
19. Mrs. Knisely receives income from the following sources in approximately the
following amounts:
SOURCE MONTHLY ANNUALLY
Bryn Mawr Trust Co.
Investment Account $13,333 $160,000
Samuel Knisel Trust 1000 12,000
Social Securi 1355 16,260
Less: 25% of BMTC Fees
Allocated to Income (1219) (14,625)
Estimated Net Income.
Total 14,469 173,635
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Liabilities
20. Mrs. Knisely is responsible for the maintenance, improvements, real estate taxes,
insurance, utilities, etc. on the Residence as well as personal expenses, which include the
following in the following estimated amounts:
EXPENSE MONTHLY ANNUAL
UTILITIES, ETC.
PPL Electric 100 $1200
Water 25 300
Gas/Oil 216 2584
Comcast Cable 115 1380
TOTAL UTILITIES, ETC. 456 5464
MEDICAL EXPENSES
Doctors 40 480
Prescri tions 250 3000
Health Insurance 450 5400
Misc. Medical 200 2400
TOTAL MEDICAL 940 11,280
HOUSEHOLD/NIISC.
EXPENSES
Groceries/Food 1000 12,000
Clothin ntertainment 3500 42,000
Lawn Caze 2500 30,000
Life Insurance Premium 7167 86,000
Coun Club Dues 500 6000
Securi 7583 91,000
Care fivers 3500 42,000
TOTAL HOUSEHOLD,
MISC 25,750 309,000
ANNUAL EXPENSES
Federal Income Taxes 30,400
PA Income Taxes 6,600
Tax re aration 2700
Real Estate Taxes 6,101.95
75% of BMTC Fees
Allocated to Princi al 43,875
Homeowner's Insurance 1181
Auto insurance 1263
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TOTAL ANNUAL 92,120.95
EXPENSES
TOTAL ALL 27,146 417,864.96
EXPENSES
Request for Clarification of Order of Incapacity
21. 'The Court's order dated November 15, 2012 appoints BMTC as permanent and
plenary guardian over Mrs. Knisely's estate.
22. The Court's November 1 S, 2012 appoints James G. Knisely and Barbara Lynn
Knisely as co-guardians over Mrs. Knisely's person without stating whether the appointment is
plenary or limited.
23. The Petitioners believe that clarification of the scope of James G. Knisely and
Barbara Lynn Knisely's co-guardianship is necessary and that a finding of total incapacity
warranting permanent, plenary guardians over Mrs. Knisely's person, is warranted under the
circumstances.
24. Accordingly, the Petitioners respectfully request that the Court amend its Order
dated November 15, 2012 to clarify that Mrs. Knisely is a totally incapacitated person and that
James G. Knisely and Barbara Lynn Knisely are the permanent, plenary guardians of Mrs.
Knisely's person.
Request for Protective Order
25. In order for the Petitioners to effectively caze for Mrs. Knisely'sweh-being, it is
crucial that they maintain access to her person.
26. Given the erratic behavior and threats referenced above, the Petitioners contend
that it is vital that a protective order be issued directing as follows:
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a. that Mrs. Knisely shall not be removed from the Commonwealth or any
other location where she might be without advance notice of no less than
48 hours to the co-guardians of Mrs. Knisely's person and/or written
consent of one or both of the co-guardians, James G. Knisely and Bazbaza
Lynn Knisely.
b. Scott shall notify both of the co-guardians of Mrs. Knisely's person at
least 48 hours prior to any visitation with Mrs. Knisely.
c. visitation with Scott, outside of Pennsylvania, shall be as agreed upon and
set forth in writing between Scott and one or more of James G. Knisely
and/or Bazbaza Lynn Knisely.
d. visitation with Scott, inside of Pennsylvania, shall be at a neutral and
agreed upon location and shall be supervised by a party to be determined
by one or both of the co-guardians of Mrs. Knisely's person.
e. during any visitations between Scott and Mrs. Knisely, and the co-
guazdians of Mrs. Knisely's person, Mrs. Knisely's other children,
grandchildren, relatives, and friends shall have access to Mrs. Knisely by
telephone or other means.
f. during any visitations between Scott and Mrs. Knisely, Scott shall be
responsible for making sure that Mrs. Knisely has an operable cellulaz
telephone on her person at all times.
g. Scott is prohibited from blocking anyone's access to Mrs. Knisely, in
person or by telephone.
h. Scott shall not reside with Mrs. Knisely at the Residence.
Request for Approval of Maintenance of Personal Checking Account
27. Mrs. Knisely maintains personal bank accounts from which she historically paid
general living expenses by herself.
28. Petitioners believe Mrs. Knisely is capable of and should be permitted to maintain
a modest balance in a personal checking account to be used by Mrs. Knisely, personally, for the
payment of general living expenses, entertainment, etc.
29. BMTC requests court approval to continue allowing Mrs. Knisely to maintain a
small checking account and to make discretionary deposits into said bank account.
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Request for Approval of Principal Expenditures
to be used to Renovate Residence
30. As set forth above, Mrs. Knisely resides in the Residence which is owned by the
QPRT and retained the right to do so for a period often (10) years, which will expire in 2022.
31. While Mrs. Knisely is not required to pay rent, she is responsible for the
maintenance of the Residence, as well as any renovations required by her.
32. Mrs. Knisely lives at the residence alone.
33. The Residence was built in or about 1962.
34. The Residence has not seen any substantial renovations since approximately
1992.
35. In order to make the Residence secure, more comfortable, and more convenient
for Mrs. Knisely, given her advanced age and mobile limitations, the Petitioners believe that
renovations are both necessary and will increase Mrs. Knisely's quality of life:
36. 'i'he renovations Petitioners propose to undertake include the following at the
following estimated costs:
DESCRIPTION OF
EXPENSE ESTIMATED COST
Security system $15,000
Replacement Windows 18,000
Bathroom renovation 40,000
Second Bathroom renovation 17,000
Kitchen renovation 60,000
Bookcase 2500
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Mold removal 10,000
'I'~T~ 162,500
37. Pursuant to 20 Pa. C.S. §5536, the Court may, for cause shown, authorize the
application of principal if any or all of an incapacitated person's income or principal of the estate
for the care and maintenance of the incapacitated person
38. The Petitioners request the Court to authorize the distribution of an amount not to
exceed $180,000 for the foregoing renovations as well as any additional, unforeseen expenses
that may be necessary to complete said renovations.
Request for Court to Substitute its Judgment for that of Mrs Knise~
pursuant to 20 Pa. C.S. §5536
39. The late Dr. Knisely and Mrs. Knisely have been long-standing clients of Howell
C. Mette, Esquire ("Attorney Mette") and the law firm of Mette, Evans & Woodside. Mr. Mette
and his firm have prepared various estate planning documents for Dr. and Mrs. Knisely over the
yeazs.
40. In or about January of 2012, Mrs. Knisely made an appointment with Attorney
Mette for the purpose of updating her Last Will and Testament. A true and correct copy of the
February 3, 2012 Last Will and Testament is attached hereto as Exhibit `A' and made a part
hereof by reference.
41. Mrs. Knisely subsequently returned to Mette, Evans & Woodside seeking
additional estate and gift planning advice. In connection therewith, Attorney Mette created a
slightly modified Last Will and Testament dated April 18, 2012. A true and correct copy of the
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April 18, 2012 Last Will and Testament is attached hereto as Exhibit `B' and made a part hereof
by reference.
42. Mrs. Knisely's goals in creating an estate plan, as expressed to her attorneys at
Mette, Evans & Woodside, were to plan for the pre-death and post-death transfers of her assets to
her children in as close to equal shares as possible giving due consideration to gifts previously
made to Mrs. Knisely's son, Samuel Scott Knisely, and to minimize state and federal death tax
liabilities.
43. Mrs. Knisely became incapacitated before she finalized her proposed revisions to
her estate plan.
44. The United States Internal Revenue Service imposes estate, gift, and generation-
skipping (GST} taxes on transfers of property at death (estate tax), during life (gift tax), and on
transfers that skip a generation (GST taxes).
45. With an estate approaching $10 million, Mrs. Knisely's estate will likely be
subject to estate tax.
46. The U.S. Economic Growth and Tax Relief Reconciliation Act of 2001 (P.L. 107-
16) ("EGTRRA") prospectively repealed the estate and GST taxes for the estates of decedent's
dying after December 31, 2049, See 26 U.S.C. §2210(a), as amended by EGTRRA, while
retaining the gift tax in a modified form.
47. EGT'RRA increased the amount excluded from federal transfer taxes, commonly
known as the unified credit, to $1 nullion for the years 2002 and 2003.
48. Beginning in 2004, the gift tax exclusion remained at $1 million while the estate
tax exclusion gradually increased from 2004 unti12009 when it reached $3.5 million.
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49. These increases in the exclusion amount were accompanied by significant
decreases in the top mazginal tax rates applicable to estate and gift transfer taxes from 55% to
35%.
50. The transfer tax benefits in the form of the increased exchsion amount from $1
million to $3.5 million estate taxes of EGTRRA were scheduled to expire on December 31, 2010
and thereafter return to a $1 million exclusion for both Gift Tax and Estate Tax purposes.
51. However, Congress passed the Tax Relief, Unemployment Insurance
Reauthorization and Job Creation Act of 2010 (P.L. 111-312) ("Tax Relief Act of 2010") which
further increased the exclusion amount to $5 million and decreased the tax rates applicable to
such transfers.
52. Absent further legislation, the EGTRRA and Tax Relief Act of 2010 provisions
are scheduled to "sunset" for estates of decedents dying, gifts made, or GSTs made after
December 31, 2012. As a result, Internal Revenue Code provisions governing estate, gift and
GST taxes in effect prior to EGTRRA's 2001-changes will spring back into life in 2013. The
exclusion amount will revert back from $5 million to $1 million for both estate and gift tax
purposes and the maximum rate of taxation will increase from 35% to 55%.
53. The sunset provisions in EGTRRA and the Tax Relief Act of 2010 will re"salt in
faz less favorable tax consequences to those with sizable estates, including Mrs. Knisely.
54. During their discussions with Mrs. Knisely in early 2012, Attorney Mette and
Attorney Jeffrey A. Ernico ("Attorney Ernico"), also of the law firm of Mette, Evans &
Woodside, advised Mrs. Knisely of available options for effectuating the goals identified by Mrs.
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Knisely with respect to her estate plan in light of the anticipated changes in the tax law which are
expected to take effect January 1, 2013.
55. Among the various options discussed was the possible usage of Grantor Retained
Annuity Trusts.
56. After multiple discussions, Mrs. Knisely instructed, Attorney Ernico to draft four
(4) Grantor Retained Annuity Trusts.
57. The remainder beneficiaries of the four (4) Grantor Retained Annuity Trusts are
four (4) of Mrs. Knisely's five (5) adult children, namely Lee Ann Knisely, Barbara Lynn
Knisely, James Grant Knisely, and Kathleen L. Knisely.
58. In accordance with Mrs. Knisely's instructions, Mrs. Knisely's fifth adult child,
Samuel Scott Knisely, was not identified as a remainder beneficiary of the proposed Grantor
Retained Annuity Trusts as a result of prior, lifetime transfers of assets obtained by Samuel Scott
Knisely from Mrs. Knisely.
59. It was intended that Mrs. Knisely's Grantor Retained Annuity Trusts be funded on
or before December 31, 2012 in order to permit Mrs. Knisely to take advantage of the increased
exclusion amount of $5,120,000 for lifetime gifts and the decreased gift tax rates currently in
effect.
60. Mrs. Knisely was declared incapacitated before she completed her proposed gift
planning.
61. Section 5536(b) of the PEF Code provides a mechanism pursuant to which an
incapacitated person's estate planning can be performed after the individual has been declared
incapacitated.
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62. Section 5536(b) provides, in relevant part, as follows:
(b) Estate plan.--The court, upon petition and with notice to all parties in
interest and for good cause shown, shall have the power to substitute its
judgment for that of the incapacitated person with respect to the estate and
affairs of the incapacitated person for the benefit of the incapacitated
person, his family, members of his household, his friends and charities in
which he was interested. This power shall include, but is not limited to, the
power to:
(1) Make gifts, outright or in trust.
(2) Convey, release or disclaim his contingent and expectant interests
in property, including marital property rights and any right of
survivorship incident to joint tenancy or tenancy by the entirety
(3) Release or disclaim his powers as trustee, personal representative,
custodian for minors, or guardian.
(4) Exercise, release or disclaim his powers as donee of a power of
appointment.
(5) Enter into contracts.
(6) Create for the benefit of the incapacitated person or others,
revocable or irrevocable trusts of his property which may extend
beyond his disability or life.
(7) Exercise options of the incapacitated person to purchase or
exchange securities or other property.
(8) Exercise all rights and privileges under life insurance policies,
annuity contracts or other plans or contractual arrangements
providing for payments to the incapacitated person or to others
after his death.
(9) Exercise his right to claim or disclaim an elective share in the
estate of his deceased spouse and renounce any interest by testate
or intestate succession or by inter vivos transfer.
(10) Change the incapacitated person's residence or domicile.
(11) Modify by means of codicil or trust amendment, as the case may
be, the terms of the incapacitated person's will or of any revocable
trust created by the incapacitated person, as the court may deem
advisable in light of changes in applicable tax laws.
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In the exercise of its judgment for that of the incapacitated person, the court, first
being satisfied that assets exist which are not required for the maintenance,
support and well-being of the incapacitated person, may adopt a plan of gifts
which results in minimizing_current or prospective taxes, or which carries out a
lifetime giving pattern. The court in exercising its judgment shall consider the
testamentary and inter vivos intentions of the incapacitated person insofar as they
can be ascertained.
20 Pa. C.S. §5536(b) (emphasis added).
63. Assets exist in Mrs. Knisely's estate which are not required for the maintenance,
support, and well-being of Mrs. Knisely.
64. The Petitioners have identified and are prepared to submit to the Court a potential
plan for estate and gift tax savings of in excess of $1.5 million dollars through the usage of
certain estate planning vehicles on or before December 31, 2012.
65. In order to take advantage of the more-favorable tax implications of a transfer of
assets prior to January 1, 2013, Petitioners request the Court to substitute its judgment for that of
Mrs. Knisely pursuant to 20 Pa. C.S. §5536(b) in favor of directing BMTC to execute
appropriate gift planning documents and thereafter make taxable gifts in the amount allowed
under the available lifetime exclusion as the Court deems appropriate.
Concurrence/Consents of Interested Parties
66. Four of Mrs. Knisely's five (5) adult children, Lee Ann Knisely, Barbara Lynn
Knisely, James Grant Knisely, and Kathleen L. Knisely consent to the relief requested herein as
evidenced by their written consents which are collectively attached hereto as Exhibit `C' and
made a part hereof by reference.
67. It is anticipated that Samuel Scott Knisely will not concur in the relief requested
herein.
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68. In order to take advantage of the tax laws in place until December 31, 2012,
Petitioners respectfully request that the Court issue a Rule on Samuel Scott Knisely requiring his
response within no more than ten (10) days;
69. Mrs. Knisely's appointed attorney, Mazk Bayley, Esquire, consents to the relief
requested herein as is evidenced by the written consent attached hereto as Exhibit `D' and made
a part hereof by reference.
WHEREFORE, Petitioners respectfully request that this Court issue a Rule to Show
Cause on Samuel Scott Knisely directing the said Samuel Scott Knisely to show cause within ten
days or less, if any he has, why the relief requested in this Petition should not be granted and to
thereafter enter an order declaring that Mrs. Knisely is a totally incapacitated person and that
James G. Knisely and Bazbaza Lynn Knisely are the permanent, plenary guazdians over her
person, addressing Samuel Scott Knisely's interaction with Mrs. Knisely, authorizing the
maintenance of a personal checking account by Mrs. Knisely, personally, authorizing BMTC in
consultation with the personal guardians to proceed with gift tax planning and to execute such
documents as they deem appropriate and is approved by the Court, after hearing, and thereafter
to make distributions of principal in accordance therewith. Petitioners further request such other
relief as this Court deems just and appropriate under the circumstances.
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Respectfully submitted,
,~`:;"'
By: `
An ony L. De ca, Esquire
Sup. Ct. I.D. No. 18607
113 Front Street
P.O. Box 358
Boiling Springs, PA 17007
(717) 258-6844 -Phone
(717) 258-3902 -Fax
Date: December ~, 2012
Attorneys for Petitioners
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VERIFICATION
I, 3AMES G. I~NISELY, have read the foregoing document and verify that the facts set
forth herein are true and correct to the best of my knowledge, information and belief. To the
extent that the foregoing document and/or its language is that of counsel, I have relied upon
counsel in making this Verification.
I understand that any false statements made herein are subject to the penalties of 18 Pa.
C.S. §4904 relating to unsworn falsification 1
DATED: ~ °j 7 t ~
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving a copy of the foregoing document upon the
person(s) and in the manner indicated below, which service satisfies the requirements of
Pennsylvania Rules of Civil Procedure by depositing a copy of same in the United States Mail at
Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows:
Thomas Flower, Esquire
26 West High Street
Cazlisle, PA 17013
Attorney for Samuel Scott Knisely
Lee Ann Knisely Cast
485 Front Street
Louisville, CO 8002
James Grant Knisely
3822 Pamay Drive
Mechanicsburg, PA 17050
Mark F. Bayley, Esquire
17 West South Street
Cazlisle, PA 17013
Court appointed attorney
for Kathleen M. Knisely
Bazbara Lynn Knisely
3501 Sunset Drive
Madison WI 53705
Kathleen L. Knisely
9008 Avis Court
Vienna, VA 22182
The Bryn Mawr Trust Co.
c/o Susan O'Donnell, Esquire
Senior Vice Pres. & Trust Advisor
Wealth Management Division
10 S. Bryn Mawr Avenue
Bryn Mawr, PA 19010
Samuel Scott Knisely- son
135 Harmon Avenue -Unit 3705
Las Vegas, NV 89109
Samuel Scott Knisely
897 Creek Crossing Trail
Whitsett, NC 27377
Samuel Scott Knisely
P.O. Box 19448
Las Vegas, NV 19448
Respectfully submitted,
Date: December ~ , 2012
By: ~ ..u-~.~.
Anthony L. DeL Esquire
Sup. Ct. I.D. No. 18607
113 Front Street
P.O. Box 358
Boiling Springs, PA 17007
(717) 258-6844 -Phone
(717) 258-3902 -Fax
Attorneys for Petitioners
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KATHLEEN M. KNISELY
I, KATHLEEN M. KNlSELY, of the Borough of'Wormleysburg,
Cumberland County, Pennsylvania, do make, publish anal declare this to be my Last
'W'ill and Testament, hereby revoking all Wills and Codicils by me at any time made.
ITEM I: I direct that all inheritance and estate
taxes becorni.ng due by reason of my death, whether such taxes may be payable by my
estate or by any :recipient of any property, shall be paid by the Executor out of the
property passing under ITEM N of this Will, as an e~zpenae and cost of
administration of my estate. The Executor shall have no duty or obligation to obtain
reimbursement for any such tax so paid, even though on proceeds of insurance or
other property not passing under this Will.
ITEM II; Y direct the Executor to pay the expenses
of my last illness and funeral expenses from the property passing under this Will as
an expense and cost of administration of my estate.
ITEM I I give and bequeath to my children listed
in ITEM IV' living at the time of my death, absolutely and in fee simple, all of my
household furniture and furnishings, books, pictures, jewelry, silverware,
automobiles, wearing apparel and all other articles of household or personal use or
adoxnxaent and all policies of insurance thereon, to be divided among them as they
shall agree.
EXHIBIT "A"
Page 1
Cep, 1. ~Q it ~:?9PfV ivle?te Evans Woodside .
No, x,145 P, 6
ITEM N: I give, devise and bequeath all the rest,
residue and remainder of my estate, not disposed of in the preceding portions of this
Will, to my following named children in equal shares:
LEE ANN KNISELY;
BARBARA L. KNISELY;
JAMES G. KNISELY; and
KATHLEEN L. ~1~TISELY.
If any of my above-named children is not living at my death, his or her
share shall be paid to the then living issue of said deceased child., per stirpes,
Provided, however, that if any then living issue of said deceased child has not
attained the age of twenty-five (25) years at the time of ray death, his or her share
shall be held in trust by my children, KATHLEEN L. KNISELY and JAMES G.
KrTISELY, as Trustees (hereinafter collectively referred to a.s "Trustee"), IN TRUST
NEVERTHELESS, and shall be administered and distributed as follows:
(a) The Trustee shall quarterly pay to or for the benefit of said
issue (hereinafter referred to as the "Beneficiary") all of the net income
and so much of the principal of said Trust as,'in the discretion of the
Trustee, maybe necessary to maintain said Beneficiary in the proper
station in life, including proper support, maintenance, medical care anal
college ar higher education,
(b) Upon the attainment of the age of twenty~five (25) years by
the Beneficiary, the Trost shall terminate, and the Trustee shall
distribute to the Beneficiary all the assets of the Trust.
(c) Should the Beneficiary die before final distribution of the
assets of the Trust, but be survived by then living issue, the Trustee
shall quarterly pay the net income from said Trust to or for the benefit
of said issue, per stirpes, living at each time of quarterly distribution; as
soon as any one of said issue attains the age of twenty-one (21) years,
Page ~
Dec, 7. 2Ci2 ~,~yP~'~ able±~_e Evans Woodside No, 014 P,, 7
and in no event later than twenty (20) years following the death of the
Beneficiary, the Trustee shall pay over all of the then assets in the
Trust to the then living issue of such deceased Beneficiary, per stirpes.
Should such Beneficiary die before final distribution and not be survived
by then living issue, the provisions of subparagraph (d) herein shall
obtain.
(d) If at any time before final distribution of the assets of any
Trust established for issue of a deceased child, there is no living
Beneficiary of the Trust, the Trust shall terminate, and its assets shall
be paid to my then living issue, per stixpes. Pxovided, the share of any
issue of a deceased child for whom a Trust has been established
hereunder shall be added to the principal of that Trust, if still in
existence.
ITEM V; ~ In the settlement of my estate and during
the continuance of the foregoing Trusts, the Executor and the Trustee shall possess,
among others, the following powers:
(a) To retain any investments I may have at my death,
including specifically those consisting of stock of a~ bank even if T have
named such bank as the Executor or Trustee herein, so long as the
Executor or Trustee may deem it advisable to my estate so to do.
(b) To vary investments, when deemed desirable by the
Executor or Trustee, and to invest in such bonds, stocks, notes, real
estate mortgages or other securities or in such othex property, real or
personal, as they shall deem wise, without being restricted to so-called
"legal investments", and without being limited by any statute or rule of
law regarding investments by fiduciaries.
(c) In order to effect a division of the principal of a Trust or
for any other purpose, including any final distribution of a Trust, the
Executor or Trustee is authorised to make said divisions or
i
Page 3 ~ -
Dec. 7. 20'2 ~.~9'N ~~1~erte tvans Woodside No. C14~ P, $
distributions of the personalty and realty, partly or wholly in kind, and
to allocate specific assets among beneficiaries and Trusts created
hereunder so long as the total market value of any share is not affected
by such division, distribution or allocation in kind, Should it appear
desirable to partition any real estate, the Executor or Trustee is
authorized to make, join in and consummate partitions of lands,
voluntarily or involuntarily, including giving of mutual deeds,
recognizances or other obligations, with as wide powers as an individual
owner in fee simple.
(d) To sell either at public or private sale and upon such terms
and conditions as the Executor or Trustee may deem advantageous to
the estate or Trust, any or all real or personal estate or interest therein
owned by the estate or Trust severally or in conjunction with other
persons or acquired after my death by the Executor or Trustee, and to
consummate said sale or sales by sufficient deeds or other instruments
to the purchaser or purchasers, conveying a fee simple title, free and
clear of all trust and without obligation or liability of the purchaser or
purchasers to see to the application of the purchase money or to make
inquiry into the validity of said sale or sales; also, to make, execute,
acknowledge and deliver any and all deeds, assignments, options or
other writings which maybe necessary or desirable in carrying out any
of the powers conferred upon the Executor or Trustee in this paragraph
or elsewhere ixi my Will.
(e) To mortgage real estate, and to make leases of real estate.
(f) To borrow money from any party, including the Executor
or Trustee, to pay indebtedness of mine or of my estate, expenses of
administration or inheritance, legacy, estate and other taxes, and to
assign and pledge assets of my estate therefor.
(g) To pay all costs, taxes, expenses an,d charges in connection
with the administration of my estate or a Trust.
Page 4
~?e~, 7, 2012 2.~9PM Mette Evans Woodside ,
No. 0' 45 P. 9
(h) To make distributions of income and of principal to the
proper beneficiaries thereof, during the administration of my estate,
with or without court order, in such manner and in such amounts ag my
E~cecutor deems prudent and appropriate,
(i) To vote any shares of stock which form a part of the estate
or Trust, and otherwise to exercise all the powers incident to the
ownership of such stock.
(j) Tn the discretion of the Executor or Trustee, to unite with
other owners of similar property in carrying out any plans for the
reorganization of any corporation or company whose securities form a
part of the estate,
(k) To disclaim any interest in property which would devolve
to me or my estate by whatever means, including but not limited to the
following means: as beneficiary under a will, as an appointee under the
exercise of a power of appointment, ag a person entitled to take by
intestacy, ae a donee of an inter vivog transfer, and as a donee under a
third-party beneficiary contract.
(1) To do all other acts in their judgment deemed necessary or
desirable for the proper and advantageous management, investment and
distribution of the estate or Trust.
ITEM VI: Whenever and a.s often as any beneficiary
hereunder, to whom payments of income or principal are herein directed to be made,
shall be under legal disability, or, in the sole judgment of the Trustee, shall otherwise
be unable to apply such payments to his own or her o~vvn best ixiterests and
advantages, the Trustee may make all or any portion of such payments in any one or
more of the following ways:
(a) Directly to such beneficiary;
Page 5
Dec. 7. 20i2 2:t~Pf~ Matte tvans Woodside No. C~145 P., 10 ,
(b) To the Legal Cru.ardian or Conservator of such benefieia:ty;
(c) To a relative of such. beneficiary, to be expended by such
relative for the benefit o~ such beneficiary; or
(d) By itself expending same for the benefit of said beneficiary,
ITEIVI VII: Any person who shall have died at the
same time as I shall have, or in a common disaster with me, or under such
circumstances that the order of our deaths cannot be established by proof, or within
thirty (30) days of my death, shall be deemed to have predeceased me.
ITEM VIII: I hereby nominate, constitute and appoint
KATHLEEN L. KNISELY and JAMES G, KNISELY to be the Executors, herein
collectively referred to as "Executor". The Executor and Trustee are specifically
relieved from the duty or obligation of filing any bond or other security.
I.~T WITNESS WHEREOF, I have set my hand and seal to this, my Last
Will and Testament, consisting of this and the preceding five (~) pages, at the end of
each page of which I have also set my i i~ial for greater security and better
identification this ~,~ day of __~ , 2012.
KA HLEEN M. ELY
Page 6
Dec, 7. 2C'2 2.~OFM Meti:e Evans Woodside No. 0145 P,. 11 ,
We, the undersigned, hereby certify that the foregoing Wi11 was signed,
sealed, published and declared by the above-named'~'estatrix as and fox her Last'VV'ill
and Testament, in the presence of us, who, at her request and in her presence and in
the presence of each other, have hereunto set our hands an,d seals the day and year
first above written, and we certify that at the time of the execution thexeof, the said
Testatrix was of sound and disposing mind and memory.
~~~~~
~, ~z, 1~ ~ (SEAL)
(SEAL)
Residing at ~ ~ ~~ ` ~~
/ ~ °~ ~
Residing at ~ ~'' ~ ~.~ ~ ~-~~- {'~
Residing ~1$ °~ ~ ~ F1M~`I ~ ~~
551116v1
Page 7
Dec. 1. 2012 2.~OPM Mette Evans Woodside No, 0145 P, 12
,,
~lll ~~1z
~'~t~f t[X ~trtd ~~e~~~tm~en~t
OF
KATHLEEN M. KNISELY
I, KATHLEEN M, KNISELY, of the Borough of Wormleysburg,
Cumberland County, Pennsylvania, do make, publish and declare this to be my Last
Will and Testament, hereby revoking all Wills and Codicils by me at any time made:
ITEM I: I direct that all inheritance and estate
taxes becoming due by reason of my death with respect to property passing under the
provisions of this Will shall be paid by the Executor out of the property passing under
ITEM IV of this Will as an expense and cost of administration of xn~,y estate. The
Executor shall have no duty or obligation to obtain reimbursement for any such tax
so paid. All inheritance and estate taxes becoming due by reason of my death with
respect to property passing outside of the provisions of this Will shall be apportioned
to, and paid by, the recipient of such property.
ITEM II: I direct the Executor to pay the expenses
of my last illness and funeral expenses from the property passing under this Will as
an expense and cost o£ administration of my estate.
ITEM III: I give and bequeath to my children listed
in ITEIVI 1V livi~a,g at the time of my death, absolutely and in fee simple, all of my
household furniture and furnishings, books, pictures, jewelry, silverware,
automobiles, wearing apparel and all other articles of household or personal use or
adornment and all policies of insurance thereon, to be divided among them as they
shall agree.
Page 1
EXHIBIT "B"
__ _
fee, 1. 7012 2:~QPM Ule~_r.e Evans Woodside No. 0145 P, 13
ITEM IV: I give, devise and bequeath all the rest,
residue and remainder of my estate, not disposed of in the preceding portions of this
Will, to my following named children in equal shares:
LEE ANN KNISELY;
BARBARA L. KNISEL'Y;
JAMES G. KNISELY; and
KAThLEEN L, KNISELY.
If any of my above-named children is not living at my death, his or her
share shall be paid to the then living issue of said deceased child, per stirpes.
Provided, howevex, that if any then living issue of said deceased child has not
attained the age of twenty-five (25) years at the time of my death, his or her share
shall be held in trust by my children, KATHLEEN Y.. KNISELY and JAMES G.
KN'TSELX, as Trustees (hereinafter collectively referred to as "Trustee"), IN TRUST
NEVERTHEZ.ESS, and shall be administered and distributed as follows:
(a) The Trustee shall quarterly pay to ox :for the benefit of said
issue (hereinafter referred to as the "Beneficiary") all of the net income
and so much of the principal of said Trust as, in the discretion of the
Trustee, may be necessary to maintain. said Beneficiary in the proper
station in life, including proper support, maintenance, medical care and
college or higher education.
(b) Upon the attainment of the age of twenty-five (25) years by
the Beneficiary, the Trust shall terminate, and the Trustee shall
distribute to the Beneficiary all the assets of the Trust.
(e) Should the Beneficiary die before final distribution of the
assets of the Trust, but be survived by then living issue, the Trustee
shall quarterly pay the net income from said Trust to or for the benefit
of said issue, per stirpes, living at each time of quarterly distribution; as
soon as any one of said issue attains the age of twenty-one (21) years,
Page 2
Dec, 7. 2012 2.~0PM Mette Evans Woodside No. 0145 P, 14
and in no event later than twenty (20) years following the death of the
Beneficiary, the Trustee shall pay aver all of the then assets in the
Trust to the then living issue of such deceased Beneficiary, per stirpes.
Should such Beneficiary die before final distribution and not be survived
by then living issue, the provisions of subparagraph (d) herein shall
obtain.
(d} If at any time before final distribution of the assets of any
Trust established for issue of a deceased child, there is no living
Beneficiary of the Trust, the Trust shall terminate, and its assets shall
be paid to my then living issue, per stirpes. Provided, the share of any
issue of a deceased child for whom a Trust has been established
hereunder shall be added to the principal of that Trust, if still in
existence.
ITEM V: In the settlement of my estate and during
the continuance of the forego~"tng Trusts, the Executor and the Trustee shall possess,
among other"s, the following powers:
(a) To retain any investments I may have at my death,
including specifically_those consisting of stock of any baxxk even if I have
named such bank as the Executor or Trustee herein, so long as the
Executor or Trustee may deem it advisable to my estate so to do.
(b) To vary investments, when deemed desirable by the
Executor or Trustee, and to invest in such bonds, stocks, notes, real
estate inoxtgages or other securities or in such other property, real or
personal, as they shall deem wise, without being restricted to so-called
"legal investments", and without being limited by any statute or rule of
law regarding investments by fiduciaries.
(e) In order to effect a division of the principal of a Trust or
for any other purpose, including any final distribution of a Trust, the
Executor ox Trustee is authorized to make said divisions or
Page 3
Dec. 7, ~0'~2 2:~OPM Mette Evans Woodside No, 0145 P, 15
distributions of the personalty and realty, partly ox wholly in kind, and
to allocate specific assets among beneficiaries and Trusts created
hereunder so long as the total market value of any share is not affected
by such division, distribution or allocation. in kind. Should it appear
desirable to partition any real estate, the Executor or Trustee is
authorized to make, join in and consummate partitions of lands,
voluntarily or involuntarily, including giving of mutual deeds,
recognizances or other obligations, with as wide powers~as an individual
owner in fee simple.
(d) To sell either at public or private sale and upon such terms
and conditions as the Executor or Trustee may deem advantageous to
the estate or Trust, any or all real or personal estate or interest therein
owned by the estate or Trust severally or in conjunction with other
persons or acquired after my death by the E~reeutor or Trustee, and to
consummate said sale or sales by sufficient deeds or other instruments
to the purchaser or purchasers, conveying a fee simple title, free and
clear of all trust and without obligation or liability of the purchaser or
purchasers to see to the application of the purchase money or to make
inquiry into the validity of said sale or sales; also, to make, execute,
acknowledge and deliver any and all deeds, assignments, options or
other writings which maybe necessary or desirable in carrying out any
of the powers conferred upon the Executor or Trustee in this paragraph
or elsewhere in my Will. '
(e) To mortgage real estate, and to make leases of real estate.
(f) To borrow money from any party, including the Executor
or Trustee, to pay indebtedness o£ mine or of my estate, expenses of
administration or inheritance, legacy, estate and other taxes, and to
assign and pledge assets of my estate therefor.
(g) To pay all casts, taxes, expenses and charges in connection
with the administration of my estate or a Trust.
Page ~
sec, 1. 2012 2,~OrM Mette Evans Wooaside ,
No, 0145 P. 16
(h) To rnake distributions of income and of principal to the
proper beneficiaries thexeof, during the administration of my estate,
with or without court order, in such manner and in such amounts as my
Executor deems prudent and appropriate.
(i) To vote any shares of stock which form a part of the estate
or Trust, and otherwise to exercise all the powexs incident to the
ownership of such stock.
(j) Ian the discretion of the Executor or Trustee, to unite with
other owners of similar property in carrying out any plans for the
reorganisation of any corporation or company whose securities form a
part o£ the estate.
(k) To disclaim any interest in property which would devolve
to me or my estate by whatever means, including but not limited to the
following means: as beneficiary under a will, as an appointee under the
exercise of a power of appointment, as a person entitled to take by
intestacy, as a donee of an inter vivos transfer, and as a donee under a
third-party beneficiary contract.
(1) To do all other acts in their judgment deemed necessary or
desirable for the proper and advantageous management, investment and
distribution of the estate or Trust.
ITEM VI: Whenever and as often as any beneficiary
hereunder, to whom payments of income or principal are herein directed to be made;
shall be under legal disability, or, in the sole judgment of the Trustee, shall otherwise
be unable to apply such payments to his own ox hex' own best interests and
advantages, the Trustee may make all or any portion of such payments in any one or
more of the following ways:
(a) Directly to such beneficiary;
Page 5
Dec. 7. 20'2 2.~OPM PVlette Evans Woodside No. 0145 P, 17
(b) To the Legal Guardian or Conservator of such beneficiary;
(c) To a relative of such beneficiary, to be expended by such
relative for the benefit of such beneficiary; or
(d) By itself expending same for the benefit of said beneficiary.
ITEM VII: Any person who shall have died at the
same time as I shall have, or in a common disaster with me, or under such
circumstances that the order of our deaths cannot be established by proof, or within
thirty (30) days of my death, shall be deemed to have predeceased me,
ITEM VIII: I hereby nominate, constitute and appoint
KATHLEEN L. KNISELY and JAMES G. KNISELY to be the Executors, herein
collectively referred to as "Executor". The Executor and Trustee are specifically
relieved from the duty ox obligation of filing any bond or other security.
IN WITNESS WHEREOF, I have set my hand and seal to this, my Last
Will and Testament, consisting of this and the preceding five (5) pages, at the end of
each page of v~rhich I have,also set my initials for eater security and better
identification this ~~. day of , 2012.
(SEAL)
THLEEN M. KNISELY
Page 6
~e~, ], 2Ci2 2:~OPM Mute Evans Woodside .
No, 0145 P., 18 ,
We, the undersigned, hereby certify that the foregoing Will was signed,
sealed, published and declared by the above-named. Testatrix as and fox her Last Will
and Testament, in the presence of us, who, at hex request and in hex presence and in
the presence of each other, have hereunto set oux hands and seals the day and yeax
first above written, and we certify that at the time of the execution thereof, the said
Testatrix was of sound and disposing mind and memory.
/~
y /.~ (SEAL) Residing at
(.~ (SEAL) Residing at
,(SEAL) Residing
567706v1
Page 7
IN RE: KATHLEEN M. KNISELY,
an incapacitated person
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA,
ORPHANS' COURT DIVISION
N0.21-12-946
CONCURRENCE
I, James G. Knisely, am an adult individual and the son of Kathleen M. Knisely. I have
reviewed the Petition Seeking Clarification of Scope of Guardianship Powers and Requesting the
Court to Substitute its Judgment for that of the Incapacitated Person Pursuant to 20 Pa. C.S.
~5536(b), and concur in the requests for relief set forth therein.
Date: December ~, 2012
J S G. KNIS
EXHIBIT "C"
Dee, 7. 20'21 2.29PM~est~Vlette tvans Woodside ~ (FAx) ~ti~o. U'4~ P,~ 2ozroo2
Ilv RE; KA~FEN 1V~. K1vI~E~;X, :: IN '~~ COU:R.T OF' CONJMOi`i PLEAS OF
an ~inaapacitated person .: CUNIBEnLANU :COUNTY, PENNSY~.VAN~,
: ORPHAI~TS:' COVRT~DIVL'~ION
: N0.21-].~-~46
CONCURRENCE
~ Barb$ta Lyno I~niseLy, aai an:~dult inQividual and the:daughter of Kathleen M.
Knisely. ~ lieve. reviewed.the Petitian.Seeking Clarification: o,~'Scope of Gucrrdiarlship Powers
and h'equ~sttrtg.the G"ourt to Substitute itS Judgment for that of the Incapacitated Person
Pursrumt to20 ~'a: C'S ;~S536ro), and concur~3n the requests for ialief set forth therein
Date: Aecamber _ 5 ,'20.12
HAI2B ~ iC<17SE~Y
Dec. 7. 2C'2 2:~~~'M Mette tvans Woodside ~ ~~~ >
No. X145 P., 4 ,
IN I2.E: ~.A~'I~LEEN M. ~NTSEI::Y, : IN THE COURT pF COMA+iON PI.~F 4S OF
an inca~a~citated~ person CUMBIRTAI~ CAUI~T~TY, PENNSYLVANIA.,
S ORPHANS.' GOI.TRT DIVISION
NO. ~ 1-12~9~6
CONCURRENCE
I, Lee Ann: Knisely Cast; am an adult individual, and ~~ daughtez Qf' ICatiilee~ M.
I~niscly. i have neviewcd the Petition ~eeki~g Cluri, ftcaf fob of Scope .vf Getarc~Yanship Pavers
and Requesting the Cpurt to 5'~bstilute:irsJudg~rre-~t,for.thut;4, fthe.IncapacitutedPerson
Par4uamt. to ZO Pa. C S: ~SS36(b); and~concur in the requests, for relied set :fartlt tlaexein.
bate: I7ecem6er , 3012
~: ) ~ ~ ~
~, i ~/ .
~T n
A~~L~Y~~S ~ ~
Fram:
~~ •
~ ~ 12/07/2012 15:40 #643' P.00'1/001
1N RE: KATHLEEN M. KNISELY, : IN THE COURT OF COMMON PLEAS OF
an incapacitated person :CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
NO. 21-12-946
POSITION OF ATTORNEY FOR INCAPACITATED PERSON
The undersigned has no objection to the Petitioners' prayers for relief in relation to the
following:
1) Request for Clarification of Order of Incapacity
2) Request for Protective Order
3) Request for Approval of Maintenance of Personal Checking Account
4) Request for Approval of Principal Expenditures to be used to Renovate
Residence
The undersigned defers taking a position with regard to Petitioners' Request for Court to
Substitute its Judgment for that of Mrs. Knisely pursuant to 20 Pa. C.S. Section 5536 until after a
hearing has been conducted regarding the matter.
lZ-7~1
Mark F. Bayley, Esq re
Attorney for Kathleen M. Knisely