HomeMy WebLinkAbout11-08-13 � .
� �' : IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
ESTHER E. CATTS •
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: Docket No.:21-13-0034 � o �=..� � m
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: ORPHANS' COURT DI � � �'' �
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PRELIMINARY OBJECTIONS TO RESPONDENTS COUNTERCLAIMS �
AND NOW, comes Barbara Rice and Stephen Catts, Petitioners herein, and file these
preliminary objections to the counterclaim filed by Respondent:
BACKGROUND
l. Petitioners filed a Petition and Injunction on or about January 18, 2018, 2013, which set
forth reasons to compel an accounting from Respondent for the period when Respondent was
acting as power of attorney for his parents. The Petition also sought to enjoin Respondent from
transferring U.S. Savings Bonds valued at $188,000.00, which were in his possession.
2. A hearing on this Petition was indefinitely postponed to provide Respondent time enough
to gather his records and produce an accounting of his handling of his parents' assets while
acting as their power of attorney.
3. To date, Respondent has failed to provide an accounting.
4. Petitioners have had to employ an accountant to review years of bank transactions, which
were incomplete and could only approximate how respondent handled his parents' assets.
5. To date, the accountant has determined that in the Sovereign Bank records alone there are
cash transactions exceeding $75,000.00 with no records to substantiate the purpose or use of
these funds.
6. The accountant has yet to finish her examination of other incomplete bank records which
also contain many undocumented cash transactions.
7. If respondent has records regarding these cash transactions, he has failed to provide them
to petitioners.
8. On or about October 25, 2013, Respondent filed a response and counterclaim to the
original Petition.
9. In his counterclaim, Respondent alleges a breach of contract action and additional loss
allegedly experienced by Respondent's wife, Karen Catts.
PRELIMINARY OBJECTIONS
10. Paragraph 1-9 are incorporated herein as if set forth at length.
11. As indicated, the original petition in this matter sought only to compel an accounting and
enjoin respondent from disposing of U.S. Savings Bonds which were owned by his mother.
12. There was no claim filed against respondent.
13. Respondent now has filed a counterclaim controverting a non-existent claim.
14. Included within his counterclaim is a demand for damages allegedly suffered by
respondent's wife, Karen Catts, who is not, and has not been properly joined in this matter.
15. A preliminary objection under Rule 1028 (a)(5), is appropriate since Karen Catts lacks
the capacity to sue petitioners herein without having been properly joined as a party in this
matter.
16. Additionally, a counterclaim for an alleged breach of contract involving Karen Catts is a
misjoinder of a cause of action and is subject to a preliminary objection under Rule 1028 a 5 .
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17. Karen Catts has failed to state a cause of action as there is no allegation of the existence
of an agreement between the petitioners and Karen Catts.
18. Petitioners never asserted a cause of action against respondent, but have merely
petitioned the Orphans' Court to compel respondent to file an accounting.
19. Respondent has filed a cause of action against Petitioners in response to their demand for
an accounting. Such a cause of action for breach of an agreement is not ancillary to the demand
for an accounting and should be brought in civil court.
20. The Orphans' Court does not have jurisdiction over the alleged breach of contract action.
WHEREFORE, Petitioners pray this Honorable Court will strike respondents counterclaim
and rule on the original petition by compelling respondent to file a complete accounting of his
actions as agent for Walter Catts and Esther Catts.
Respectfully Submitted,
R. Mark Thomas, Esquire
ID#41301
101 S. Market St.
Mechanicsburg, PA 17055
717-796-2100
rmarkthomasna�mail com
CERTIFICATE OF SERVICE
I, R. Mark Thomas, Esquire, hereby certify that I have served a true and correct copy of
the within document on the following person by depositing a true and correct copy of the same in
the U.S. Mail at Mechanicsburg, Pennsylvania, First Class Postage pre-paid, addressed to:
Samuel L.Andes
Attorney-at-Law
PO Box 168
Lemoyne, PA 17043
Date: November 8 2013
R. Mark Thomas, Esq.