HomeMy WebLinkAbout11-08-13 RE: : IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY,PENNSYLVANIA
GLEN H. STONER
IRREVOCABLE TRUST ORPHANS' COURT DIVISION
No. 21-11-1132
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PRELIMINARY OBJECTIONS r�- c i i rn
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TO PETITION TO FREEZE TRUST ASSETS '. � "1
TO PETITION FOR REMOVAL OF TRUST ,� o
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These Preliminary Objections are filed pursuant to Rule 1028 of th 7Pennsylvan)a R,41es,
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of Civil Procedure, 42 Pa. R.C.P. 1028, and local Rule 1028(c) of the Cumberland County Rules
of Procedure, by Wayne Stoner("Wayne") and Ronnie Stoner("Ronnie"), who serve together
as the co-trustees (the"Trustees") of the GIen H. Stoner Irrevocable Trust, dated March 30,
2004, as amended to date (the "Trust"), as created by Glen H. Stoner ("Glen")
Summary
I. The Trustees object preliminarily both to 1) the Petition to freeze Trust Assets (the
"Freeze Petition"), filed on October 8, 2013, and 2) the Petition.for Removal of Trustees
in accordance with 20 Pa. CS § 7766(b)and Accounting(the"Removal Petition°), also
filed on October 8, 2013 (together, the"Petitions") verified and filed by Glen, as the
Petitioner.
2. Both Petitions relate to the administration of the Trust by the Trustees.
3. In response to the Petitions, this Court issued two orders,both dated October 11,2013,
per Judge Albert Masland (the"Orders"), in the nature of a rule to show cause "why the
petitioner is not entitled to the relief requested."
4. The Petitions were received by the Trustees on October 19, 2013. Response is required
within twenty(20) days of service upon the Trustees, as Respondents.
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5. The Court, in its Orders, set a hearing for December 18, 2013, at 1:30 PM in Courtroom
#1 of the Cumberland County Courthouse,regarding both Petitions.
6. The Petitions were filed by Glen, who was declared incapacitated and who became the
subject of a guardian's appoinhnent as to his estate per this Court's Order and Opinion,
dated December 30, 2011 (the"Guardianship Order"), a copy of which is attached hereto
as Exhibit "A"and incorporated herein by this reference.
7. No address is given for GIen in either of the Petitions, and his capacity is not averred
affirmatively.
8. The Guardianship Order names Orrstown Bank, a bank with trust powers located at 77
East King Street, Shippensburg, PA 17257, and remains in effect, so that the Petitioner
lacks legal capacity to sue, and specifically lacks legal capacity to file the Petitions.
9. Neither of the Petitions was filed or joined by the court-appointed Guardian of the Estate
of Glen H. Stoner, an incapacitated person, namely Orrstown Bank .
10. Orrstown Bank is a necessary party in any such actions, since it represents interests in
financial matters involving Glen.
11. Appointment of Orrstown Bank was noted in Paragraph 7 of the Removal Petition, which
recited the Court's Order"appointing Orrstown Bank as plenary guardian."
12. Furthermore, neither of the Petitions was served upon On stown Bank,which is a
necessary party in any such actions.
13. These Preliminary Objections constitute the answers required by the Orders, pending
further order of this Court.
14. Nevertheless, and independently of the filing of these Preliminary Objections, the
Trustees commit to the Court and to Orrstown Bank{upon whom service of these
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Preliminary Objections is made for information) to file an account of the Trust for audit
by the Court pursuant to a Petition for Adjudication, under the Court's routine audit
schedule.
a. Preparation and filing of an account shall demonstrate the accountability of the
Trustees to this Court and to Orrstown Bank.
b. An account best presents in a proper format details of their administration of the
Trust for ail purposes.
c. The accompanying Petition for Adjudication shall present to the Court issues
regarding the administration of the Trust for the benefit of Glen of which the
Court is not yet familiar,but that distress the Trustees. Such issues should
concern the Orrstown Bank, which may wish to investigate the application of
funds for the benefit of Glen, an incapacitated person, to insure no dissipation .
d. The account will be stated from April 2, 2009,when the Trustees began their
administration of the Trust following the resignation of the predecessor trustee,
until a current Hate (likely, October 31, 2013).
e. The account will list legal fees and fiduciary commissions incurred in the
administration of the Trust, including the preparation and filing of the account.
f. The Account and a Petition for Adjudication will be filed by the next deadline
stated in the Court's Schedule for audit of accounts, that is,by Friday, December
13, 2013, for audit on January 14,2014.
g. The Court may decide to reschedule its proposed hearing date pending disposition
of these Preliminary Objections and the audit of the account to be filed.
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Facts of Record and Law
15. The Petitioner, Glen, who is presently an incapacitated person, created the Trust on
March 30, 2004, when he had capacity to do so.
16. Glen now resides in Texas, but no address was provided for him in the Petitions.
Orrstown Bank supplied an address,upon request, as follows: "c/o Janet Z. Swope, 2116
Ruth Street, Arlington, TX 76010".
17. Wayne resides at 506 Dave Drive, Mechanicsburg(Cumberland County), Pennsylvania
17050-2471.
18. Ronnie resides at 24 Bedros Street, Windham,New Hampshire 03087-1626.
19. Since April 2, 2009, to date, Wayne and Ronnie have administered the Trust for the
benefit of Glen.
20, On December 30, 2011, after hearing,this Court adjudicated Glen as an"incapacitated
person"pursuant to 20 Pa. C.S.A. § 5511, finding by clear and convincing evidence that
he"is an incapacitated person in that because of the onset of symptoms of mixed
dementia he is unable to receive and evaluate information effectively and communicate
decisions sufficiently to such a degree that he is unable to manage his financial
resources."
21. In its "Findings of Fact", this Court held, in part, as follows regarding Glen's condition
(Memorandum Opinion, pp.1-2) :
a. "Mr. Stoner suffers from the early stages of mixed dementia which affects, in
part,his ability to receive and evaluate information."
b. "Both psychologists and all the parties, including Mr. Stoner are in agreement that
he is currently unable to manage his resources."
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c. "Although Mr. Stoner's reasoning and judgment are impaired,he remains capable
of making reasonable decisions with respect to his daily living activities."
d. "Mr. Stoner's significant hearing deficit makes it difficult, but not impossible, for
him to comprehend some of the information necessary to make decisions."
22. In its "Findings of Fact", this Court held, in part, as follows regarding the Trustees'
administration of the Trust (Memorandum Opinion,p. 2): "Petitioners have ably served
as trustees for an irrevocable trust established by Mr. Stoner when lie moved to
Pennsylvania in or about 2004."
23. On the date of the hearing,the Court appointed Orrstown Bank"as plenary
guardian of[Glen's] estate".
24, The Freeze Petition and the Removal Petition were verified by Glen only.
25. The Petitioner alleges in the Removal Petition that the Trustees breached their fiduciary
duties and invaded the corpus of the Trust, and then seeks removal of Wayne and Ronnie as
Trustees of the Trust pursuant to 20 Pa.C.S. § 7766.
26. The Petitioner alleges in the Freeze Petition that the Trust should be frozen.
Preliminary Obiection. Petitioner lacks capacity to sue
27. Respondents hereby incorporate Paragraphs 1-26 of these Preliminary Objections by
reference as if set forth in full.
28. 20 Pa.C.S. § 7766 states that the settler of a trust may request the court to remove a
trustee.
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29. The settlor of this Trust has been adjudicated incapacitated by this Court and, therefore,
lacks capacity to file suit on his own behalf and, specifically, to verify the facts alleged in either
of the Petitions.
30, Section 5524 of the Pennsylvania Estates and Fiduciaries Code ("PEF Code") provides,
in pertinent part, "A partially incapacitated person shall be incapable of making any contract or
gift or any instrument in writine in those specific areas in which the person has been found to be
incapacitated." 20 Pa.C.S. § 5524 (emphasis added.)
31. Pennsylvania Rule of Civil Procedure 2063 requires verification of allegations of fact in
a pleading filed with a court.
32. Glen signed verifications to each Petition,purportedly verifying facts therein that relate
to his finances and his estate, and to the Trust and the Trustees.
33. Orrstown Bank is the plenary guardian of Petitioner's estate and, as such,Petitioner does
not have the capacity to sign verifications to the Petitions, or to act as a petitioner in such
matters, or to direct filing of the Petitions through an attorney.
WIiEREFORE, Respondents respectfully request the Court to grant these Preliminary
Objections and to dismiss the Petitions.
Preliminary Obiection: Petitioner has failed to loin a necessary party
34. Orrstown Respondents hereby incorporate Paragraphs 1-33 of these Preliminary
Objections by reference as if set forth in full.
35. Petitioner has failed to join Orrstown Bank, which serves as plenary guardian of theestate
of Glen H. Stoner, as a party to the Petitions, or to act through such guardian.
36. Orrstown Bank, as Guardian of Petitioner's Estate, is a necessary party to this action.
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WHEREFORE, Respondents respectfully request the Court to grant these Preliminary
Objections and to dismiss the Petitions.
Respectfully submitted,
Date: November 7, 2013
ell ders h
Carol L. Verish, Esq.
Serratelli, Schiffinan & Brown, P.C.
2080 Linglestown Road, Suite 201
Harrisburg, PA 17110
(717) 540-9170
Counselfor Trustees
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VERIFICATION
I, Ronnie Stoner, an adult individual, verify that the statements made in the foregoing
pleading are true and correct to the best of my knowledge, information and belief. I understand
that any false statements made herein are made subject to the penalties of 18 Pa.C.S. §4904
relating to unsworn falsification to authorities.
Date: Signed: 42�
Name:
VERIFICATION
I, Wayne Stoner, an adult individual, verify that the statements made in the foregoing
pleading are true and correct to the best of my knowledge, information and belief. I understand
that any false statements made herein are made subject to the penalties of 18 Pa.C.S. § 4904
relating to unsworn falsification to authorities.
Date: Signed: (✓�'� �
Name: i4" P SA tie r
aAN=OA-2012 W53 AM P. 02/01
21-11-1132 ORPHANS'COURT
F. BaYlay, Esquire
For
J. Edwwd Beek,Esquine•
For Glen H. SWner
�1rQ
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IRH°Q4-2€ii2 2 .53 Iltt P. 03/07
IN RE: MEN H.StOt+l K : IN THE COURT OF COMMON Ply OF
AN AUEGSD INCAPAC=ITATED ; CUMOERIAND COUNTY;
MRSON PENNSYLVANIA
' 31.11-1992 ORPHAN&COURT
Masfrartd.J.,Cioawbw 3012011.—
Eiefors the court is the Iveftn of Ronk Stoner,Wayne Stoner mW tidy
t'lovcltarmmilh, ""aft,Petitioners),'which seaft the adjuM action of Incapacity city and
the sappoanVuent of a guardian for lhak uncle.Glen K Stoner(hereafter Mr, fir).
Afiat an extonslve havingo vvhM Included ft tsatisnorly of ft Petitioners and gmtr
expert psychologist on the one sine and Iher t esttmany of Mr. °.3€trner,his dauMhW.Janet
Swope,Prisdin Hrltrdmm#ran the Qwftdand linty Otter AOV snd Mr_mar's
eft psyd ologlst.vm nmkrA the following ftings of f0dand oonolusim of law:
1. Mr.Stonnrr sutlers from the awly stages of miaood d tends W"
�ftft,kt W.his ability to receive W4 evaluate,irrfora wfiian.
2. Both psyafrolopksts and alt Etta per,Intauding Mt,Storter,are in
»Weernmet drat he is currently unable to his
3. Although Mr.Slrarrses masvriing and judgment we kripalred, he
remains(bb of making reounsbis dwAsloas with respect to his
deity tivtt��elieC. '
At the heating, Kstt y tlodwaft did rattappwor It was related by
Rowle Stoner that Mr.Hoolarnsmith no longer desired to serve as plenary
guardian odors person w4 estate of his uncle. TherWore,all ref moms to the
Petitioners shell aarduciev Mr.Hockomm t
21.11-1932 ORP~ COURT
4 h+ t tsurei t; gr cant hearing deficit make*A dd5wtt, twt not
able, for him to mnpmhend eorm ofthe Oftra bon
ry to mataas lo".
J3. 848ed orr die nupow and conk aft t of Itirr. Sturaara tosamony and
ties taatlrraov of fwR mouft W*Wam, Pmcma Whbman,we&4 that
Mr, $Wen's dedabn to mom to,Arlington, Tom to 04 vAth hie
daughter Is ra400nable under all fita aoaa,Including the
faflowing:
a. W. Stoner ftmt expreNW a derdre to snows to Texas
aproxImeWily ontryearvAcLbut hotfto►wrnalnin
Po nasylwahia to care for We air it Rase St4%w.
b. Mr_Sbonvir impresw ft oauat me being f it aware of
#ha VKMWIS Of 4 MM to TeM and OpMeead a
MwvAnq and voluntary d aeke to maPA that nave:
C. The rotat RwAbes no fauff to the F'Wbrrara-howavtir,
the mR tioruruhlp*10i Mr.Stonprhas been Watned cf lWe,
arm he'fseta k4latul and IlvJod aao d."
d, ANhough the PsOm ms are genulwy fond of Mr. Stoner,
fty ere unable to cmv for Itlm on a fL41,010 barns.
e. Mrs. Swapo fs rativd and fable to taatre floc her father ran a
ful-4m terse Arlington.Tearee.
29-11-1182 OfulttAPiB"COURT
f. 13sateu at the strabled relat QnahIP wfth Petitioners,Mr.
Story ar has gtvatra his pourer-&-aftomay and paw'-4-
rtGimoy for heaatttol"purposes,to hie daughter.
6, FoUtform have thly served as trostaev for aft Inevocabta t t*
oateblielied by Mr. Slotwr when he moved to Penaa:ytvania'i n or
aatbditt 2tidiA.
T. FelfflonsmanowIlIng and sD to sor+re as ►rditttt,caf the
fix Mr.SWor.
8. The a"s cortAb pdmv*ofammiWAtely$109,000 In
ilea tiara by Mr, Btoraer at v8dnua� In trio�
spoutmeot and which has boon d to an atant with
t`irrataawrt lank.
8. Although Pollftem suspect Mm wipe of ttsv"ultmotor rn
vs t respiotto Mr.Stara r`s estate,if she was solely Mwesbad in
taft advantage of her feOst"a WIMM,the aloreSald Ainds v ouN
YOW taa^re mate it ha vnatown Bank,
1 D, Despite the fact that she we*eswr4od Dom hoar War for ovsr 3t
yeas*„Mato.Swap*appears genuyaeyr desirous of=dng fret'her
father in his mMoning years.
19. Should Mm SwWa taagWe ftanclitt eealabmcs for tuts.Stotter to
Atttngtbat. a neutral guardian of Is in evw
jona's best
t6tl9#,
21-11-1132 ORPHANS'C04JRT
2299 .uIM§2s LAW
1. NoWhattard ng the aupport of the PorAwars and Mr. ftnees
daughter,the orrset of dementia nec essitmos the op ointment of a
guardian Mdth reaped to his financial Wake.
2.'Aplsnalyguardian is required W manoWthose assets thater+e not
whin the MwOcablo trot.
3. Mr, 8t rw is ltlalQ to a*ovl ly c rnmunIca to some decisions wdh
rapes to his gengnal effadrs, 3nc fo the chwtce o1whens hs
vvIshas to t a. ThefWare;we r+otralara kwo appointing a guardlart of
the parearr for Mr. fs"t ww.
An a con is of the ftv&nv findings and conalusiottt we snlortho
follaaaring wdar, '
AND NOW,this, 10 ofthcenber.2011, lased upon tho
petitlen for eppoirrtnrartt of a guarriian puMaoart tp 20 PA.C.SAA. Section,$611,and
asllOwIng a ho ring,the court Ards by clear and owwfnm*g vvidarm that the allegedly
bwapacitow parson, +Tarr K ftrisr. is an 11000aftloci person,in that because of the
oneet Of synrptoms of rrdastd dement he is eatable to roosim and evaluate Wannadart
eiiegivety and commuploote decisiorm sufficiently to such a degree that he is unable to
hla*%anccial rosands,we adjudlIcOlo him an Incapacitated petsort vft respect
to his estate and app oW Onswv t Bank as plenary gulardian of his estate, The
requirornont of bong is rnahw.
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21-11-1132 ORPHANS' t+OURT
t3em$o Mr, Saar In able to mcoho and evaluate MmtaWq and
C*MffNldnic W "s d0d$iORS WO re"et t0 tile pMaP,and bo mme sa healttiare
p+ r-r tivmey is in p4m wfth the doughtor, Anot SyMpe. we find#to Amneomagry
for the murtta appt*d a ti ted g r+*or#*pew for W 86w. Finally,we
SuQgW that hie ea to omd oampe tt opoWton tomom to Texpa should bu
84t wed too so o wttd m!y reascanabte and competent dedskm he may moa to mwtn to
Oennsytonht at a later Meta.
sy tM Cost
ow
Altrett Fi, tUkar ,J.
Mauk t=. Saiylay, Kw
For Pawnee^
J. E&wwd t ocK Esquire
For Olen H. Starer
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
IN RE:
GLEN H. STONER IRREVOCABLE NO. 21-11-1132
TRUST
ORPHANS' COURT DIVISION
CERTIFICATE OF SERVICE
On this 7°i day of November, 2013, I, Neil E. Hendershot, Esquire, as counsel for the
Respondents, hereby certifies that I have this day served the foregoing Preliminary Objections
ng, by depositing a true and correct copy of the same in the United States Mail, first class,
postage prepaid, at Harrisburg, Pennsylvania, addressed to the following persons:
John J. Mooney III, Esq.
230 York Street
Hanover, PA 17331
Orrstown Bank
77 East King Street
Shippensburg, PA 17257
Date: November 7, 2013 �
eil E. Hendershot, Esq. Gt/►� ((
Serratelli, Schiffman & Brown, P.C.
2080 Linglestown Road, Suite 201
Harrisburg, PA 17110
(717) 540-9170