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Home My WebLink About08-09-13 , � o �_, � ��== � � =� � Ronald L. Finck, Es uire � ° �� R� � q ,,� �_.., � Sup. Ct. Id. No. 89985 �' `�=' �; G F� �°�' � �,: C'W', � �:,� Kevin J. Hayes, Esquire � �°; � � ':�`�:k Sup. Ct. Id. No. 314338 �"' +U? �:;�,�� W �,-�, :� . METTE, EVANS & WOODSIDE `�=' �M� �:,� .=:� µ`"� ��, �, 3401 North Front Street � �W� � �� P.O. Box 5950 ;, ;��., ��....� :, ;;; "�"'a W� .__�: �,"„ `� Harrisburg, PA 17110-0959 :�:� � `�� Phone: (717) 232-5000 Fax: (717) 236-1816 . kjhayes@mette.com IN RE: : IN THE COURT OF COMMON PLEAS OF ESTATE OF VASILIKI MALLIOS, : CUMBERLAND COUNTY, PENNSYLVANIA Deceased : ORPHANS' COURT DIVISION METRO BANK, f/k/a COMMERCE : BANK/HARRISBURG,N.A., : NO. 21-10-0790 Petitioner : v. : CONSTANTINOS J. MALLIOS and : NICKOLAS J. MALLIOS, : Respondents : PETITION TO ENJOIN DISTRIBUTIONS OF ESTATE ASSETS The Petitioner, Metro Bank, formerly known as Commerce Bank/Harrisburg,N.A. ("Metro"), by and through its attorneys, Mette, Evans & Woodside, files this Petition to Enjoin Distributions of Estate Assets, as follows: I. INTRODUCTORY STATEMENT 1. This is a Petition requesting the exercise of the Court's equitable powers to enjoin Respondents, Constantinos J. Mallios ("Constantinos") and Nickolas J. Mallios ("Nikolas") (Nickolas and Constantinos shall be collectively referred to herein as the "Co-Executors") from � � making distributions of property of the Estate of Visiliki Mallios, deceased ("Decedent") pursuant to 20 Pa.C.S. § 3182, pending an adjudication of the issues raised by Metro in its accompanying Petition for Accounting. 2. This Court has previously obtained jurisdiction over the Respondents. II. PARTIES 3. The Decedent died on July 27, 2010, a resident of Cumberland County, Pennsylvania. 4. Metro is a Pennsylvania financial institution organized and existing under the laws of the Commonwealth of Pennsylvania with a principal place of business at 3801 Paxton Street, Harrisburg, Pennsylvania 17111. . 5. Constantinos is an adult individual residing at 715 Sandbank Road, Mt. Holly Springs, PA 17065. 6. Nickolas is an adult individual residing at 431 Meeting House Road, Carlisle, PA 17013. 7. The Co-executors are the natural sons of the Decedent and the sole residuary beneficiaries of the Decedent's Estate. III. BACKGROUND FACTS � 8. The Decedent's Will dated May 22, 2009 was admitted to Probate on August 4, 2010 (the "Will"), and letters testamentary were granted to the Co-executors. 9. It is believed and therefore averred that the Co-executors were excused from the requirement to post a bond by the terms of the Will. 2 , 10. As set forth in greater detail in Petitioner's Petition for Accounting filed concurrently with this Petition,the allegations and exhibits of which are incorporated herein by this reference, during her lifetime the Decedent unconditionally guaranteed the repayment of the certain loans made by Metro to Constantinos (the "Loans"). 11. The Decedent's death constitutes an Event of Default under the Promissory Notes evidencing the Loans, thus making Metro a creditor of the Decedent's Estate. 12. As set forth in the accompanying Petition for Accounting, Metro has a significant claim against the Estate for amounts due in connection with the Loans. 13. Creditors of the Decedent's Estate are entitled to be paid out of funds of the estate before beneficiaries. In re O'Neill's Estate, 109 A. 526, 527 (Pa. 1920)("[Creditors] are entitled to be paid out of the first funds which ought to be available for the purpose, and to object to any credits which wrongfully stand in the way of their availability at the earliest moment.") 14. The Co-executors have engaged in self-dealing by transferring real property to themselves individually for no consideration, without court approval and before satisfaction of the claims of the Estate's creditors, including Metro. 15. As set forth in the accompanying Petition for Accounting, the Co-executors have improperly applied proceeds of the sale of the real estate owned by the Estate to junior � lienholders and unsecured creditors of the Estate, to the detriment of Metro. � ; , ° 16. By doing so, Co-executors are unilaterally picking and choosing which creditors ; ' to pay off, and have potentially exposed the Estate to claims by the Buyers. r � 17. On information and belief, Co-executors have made distributions to beneficiaries, including themselves, before making payment to creditors of the Estate. � � � 3 ; ; , IV. PRAYER FOR RELIEF 18. It is believed and therefore averred that the actions taken by the Co-executors may have resulted in substantial loss to Decedent's Estate and to Metro as a creditor of the Estate. 19. This Court has equitable powers to stay all distributions of Estate Property pending an accounting of the Co-executors of the Estate or to take precautions to safeguard assets of the Estate. E.g. 20 Pa.C.S. §§ 3387, 3388;In re Zimmerman Estate (No. 2), 32 Pa. D. & C.2d 391 (Pa. Com. Pl. 1963). WHEREFORE, Metro requests that this Honorable Court issue an Order in the form attached hereto, enjoining the Co-Executors from making distributions of Estate assets pending an adjudication of the issues raised in Metro's Petition for Accounting or, in the alternative,that the Respondents post security for their continued actions as Co-Executors. Respectfully submitted, METTE, EVANS & WOODSIDE By: ��,..Q..�C.. .c,�,� Ronald L. Finck, Esquire Sup. Ct. I.D. No. PA 89985 Kevin J. Hayes, Esquire Sup. Ct. Id. No. 314338 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone Attorneys for Petitioner, Metro Bank,f/k/a Commerce Bank/Harrisburg N.A. Date: August 9, 2013 4 VERIFICATION I, David M. Chajkowski, am a Vice-President of the Petitioner, Metro Bank and as such am authorized to make this Verification. I have read the foregoing document and verify that the facts set forth therein 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 provisions of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities. DATED: � � �3 �� David M. Chajkowski Vice President F CERTIFICATE OF SERVICE I 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 the 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: Robert G. Frey FREY& TILEY 5 South Hanover Street Carlisle, PA 17013 (Attorneys for Respondents) METTE, EVANS & WOODSIDE By: Ronald L. Finck, Esquire Sup. Ct. I.D. No. PA 89985 Kevin J. Hayes, Esquire Sup. Ct. Id. No. 314338 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone Attorneys for Petitioner, Metro Bank,f/k/a Commerce Bank/Harrisburg, N.A. Dated: August 9, 2013 662899v1