HomeMy WebLinkAbout01-14-05
IN RE: FRED E. GERBER, SR.
TRUST UNDER AGREEMENT
DATED JULY 29,1994
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYL VANIA
: ORPHANS' COURT DIVISION
: NO. 21-1998-0195
IN RE: MILDRED J. GERBER TRUST
UNDER AGREEMENT, DATED
DECEMBER 19, 1997
: NO. 21-2002-0540
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AND NOW, this 14th day of January, 2005, comes William A. Duncan, Esqui~, duly;:::;
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appointed Auditor in the above-captioned matters, and offers to the Court this Interim Report:\D
INTERIM REPORT OF AUDITOR
1. The Auditor was appointed by the Court on or about December 4, 2002, and duIy
accepted the appointment.
2. Proceedings were started to review accounts filed by Frederick E. Gerber, II,
Trustee which accounting ended on December 31, 2001, as a First and Partial Account in each of
the above-captioned matters.
3. The Accountant, Frederick E. Gerber, II, was deployed by the United States Army
and thereby was entitled to protection by the Soldiers and Sailors Civil Relief Act, effectively
halting the Audit.
4. On August 3, 2004, after a Hearing held before the Auditor, Colonel Frederick E.
Gerber, II, waived the protection of the Soldiers and Sailors Civil Relief Act, allowing the
Auditor to proceed.
5. The Auditor scheduIed discovery, pre-trial matters, and gave proper Notice of
Hearings to be held on November 17, 18, and 19, 2004, in regard to the Audit. On or about
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November 13, 2004, the parties asked that the scheduIed Hearings be Continued for the purposes
of judicial efficiency and to complete discovery.
6. The Auditor scheduled a Status Conference for Wednesday, November 17, 2004,
for all Counsel. At the Status Conference all parties agreed to consent to the following:
With regard to Docket Nos. 21-1998-0195 and 21-2002-0540:
A. Accountant, Frederick E. Gerber, II, shall file an accounting for the time
period JuIy 9, 2002, to December 31, 2004, on or before January 28, 2005.
B. Accountant, Frederick E. Gerber, II, shall file along with the accounting
for the time period of July 9, 2003, to December 31, 2004, an informal accounting
indicating estimated expenditures from January 1,2005, through July 19,2005.
C. If Objections are filed to the accounts filed as contemplated in paragraphs
1 and 2, the parties agree that William A. Duncan, Esquire shall be named as the Auditor
for said Audits.
D. The Auditor wouId designate Scheduling for Discovery, Hearings, and
delivery of Report to the Court.
7. On or about December 20,2004, Marilyn Gerber requested relief from these
proceedings from December 27,2004, to January 9, 2005, due to her vacation scheduIe.
8. On or about December 22, 2004, Jacqueline M. Verney, Esquire, Objector to the
account, filed a Petition to Show Cause why the agreement of Counsel referred to in paragraph 6
should not be made an Order of Court. The Petition also demanded an award of Counsel fees
against Marilyn Gerber and Frederick E. Gerber, II.
9. On or about December 27,2004, Marilyn Gerber, Objector, filed a Motion to
Compel Frederick E. Gerber, II to Answer Interrogatories submitted by Marilyn Gerber on
November 4, 2004.
10. Objector, Marilyn Gerber, also filed and Answer to the Petition of Jacqueline M.
Verney, Esquire requesting that no Counsel fees be assessed against her, rather such fees should
be assessed against Frederick E. Gerber, II, the Accountant.
11. The Auditor believes that accountings for the period January 1,2002, until
December 31, 2004, together with informal statements going forward to June 30, 2005, would
foster judicial economy and efficiency and that it is not unreasonable to order such accountings.
12. In the interest of judicial economy, assuming Objections are filed to the
accountings referred to here and above, the Auditor would be appointed to rule upon the new
filings. The Auditor would consolidate the Hearings as to all filings as to each Account.
13. Prior Orders of the Auditor have effectively suspended discovery for any Motions
filed prior to November 13,2004.
14. The Auditor recommends that a new Discovery schedule related to all materials
contained within the filed accounts would commence upon the entry of an appropriate Order of
Court.
15. The Auditor recommends that the entire audit should be completeq, and an
Auditor's Report be submitted to the Register of Wills on or before November 15, 2005.
Respectfully submitted,
DUNCAN & HARTMAN, P.C.
By:
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William A. Duncan,
Auditor
One Irvine Row
Carlisle, P A 17013
(717) 249- 7780
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