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Home My WebLink About01-13-13 Scott Alan Mitchell,Attorney ID No. 76124 �_�� Jillian M. Golden,Attorney ID No. 206510 C� �_ � �-�s-i RHOADS&SINON LLP C � � � Q �- � � One South Market Square, 12�h Floor � _r> 4- C:D -{7 ,. Cj) :� P.O. Box 1146 r�i � c� `- --..a ��y Harrisburg, PA 17108-1146 �� T�- � �-' '''`• �'' PH: (717) 231-6602 ~ "�' �� W '"' �3 �.�, u.y --? FX: (717) 238-8623 �M •': �"' P�}; �..7 ,„ .. ._... smitchellCa7rhoads-sinon.com `> -�3 } " a c-y �- j�c�olden(c�rhoads-sinon.com ` ' �r' ` � _ � � w.__. ;•�� -� -�"� .�� c> . � `l IN RE: : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICK J. MOLLE : ORPHANS' COURT DIVISION An Alleged Incapacitated Person : No. 21-13-1189 PETITIONER'S RESPONSE TO RULE TO SHOW CAUSE AND ANSWER TO MOTION TO DISMISS NOW COMES, Petitioner, Mary Adams, by and through her attorneys, Rhoads & Sinon LLP, and files the within Answer to the Court's December 23, 2013 Rule to Show Cause, issued in response to Respondent, Patrick J. Molle's Motion to Dismiss, and states as follows: INTRODUCTION On November 8, 2013, Petitioner, Mary Adams ("Petitioner") filed a Petition for Appointment of Emergency and Plenary Guardian of the Estate of Patrick J. Molle ("the Petition"). The Petition was filed with an attorney verification, as opposed to the verification of Mary Adams. On November 22, 2013, the alleged incapacitated person, Patrick J. Molle ("Respondent") filed preliminary objections, asking the Court to dismiss the Petition for lack of a proper verification. On November 27, 2013 the Honorable Judge Thomas A. Placey issued an Order, directing Petitioner to file of record a verification pursuant to Pa. R. Civ. P. 1024 within twenty (20) days. A true and correct copy of the Order is attached hereto as Exhibit "A." The November 27, 2013 Order was not docketed with the Register of Wills until December 2, 2013 (the first business day after the Thanksgiving holiday). On December 19, 2013, Petitioner filed of record a verification in accordance with Pa. R. Civ. P. 1024. A time-stamped copy of Petitioner's verification is attached hereto as Exhibit "B" and incorporated herein by reference. Simultaneously with the mailing of Petitioner's verification to the Court on December 18, 2013, Respondent filed a Motion to Dismiss, claiming that Petitioner violated the Court's Order. Respondent contends that the verification had to be filed on or before December 17, 2013, and Petitioner's December 19, 2013 filing was untimely. Respondent requests the drastic sanction of dismissing the Petition, with prejudice. For the reasons set forth below, Respondent's Motion to Dismiss must be denied. Petitioner timely filed the verification within the twenty (20) day time-frame set by the Court's Order. In Pennsylvania, notice of entry of an order is deemed provided on the date the Order is entered on the docket and distributed to the parties. See Pa. R. Civ. P. 236; Pa. R. A. P. 108. Here, the Order was entered on the docket on December 2, 2013, and Petitioner filed the verification on December 19, 2013, well within the twenty (20) day time frame required by the Court. To the extent the filing was untimely, which is denied, the two (2) day delay was de minimus and Respondent has not alleged any prejudice which would justify granting the Motion to dismiss. Accordingly, Respondent's Motion to Dismiss should be denied. ANSWER TO MOTION TO DISMISS 1. The averment in Paragraph 1 is admitted. 2 2. It is admitted that the initial verification attached to the Petition was executed by counsel to the Petitioner, Scott Alan Mitchell, Esquire. However, on December 19, 2013, Petitioner, Mary Adams, filed of record her verification of the Petition in accordance with Pa. R. Civ. P. 1024, and this Court's Order of November 27, 2013, and entered on December 2, 2013. See Exhibits A-B. 3. It is admitted only that Respondent filed preliminary objections based on counsel's verification. It is specifically denied that the preliminary objections have any merit. A verification pursuant to Pa. R. Civ. P. 1024 was executed by Petitioner, Mary Adams, and filed of record in this matter on December 19, 2013. Petitioner's timely filing of the verification renders Respondent's preliminary objections moot and his Motion to Dismiss should be denied. 4. The averment in Paragraph 4 specifically refers to Judge Placey's Order dated November 27, 2013, and docketed on December 2, 2013. The Court's Order is a written document that speaks for itself and Petitioner specifically denies any attempt by counsel to mischaracterize the same. By way of further response, the Order was dated on November 27, 2013, the day before the Thanksgiving holiday. Per the Cumberland County official Court Calendar for 2013, the Courthouse was closed on Thursday, November 28, 2013 and Friday, November 29, 2013. Therefore, the first business day after the Order was signed was Monday, December 2, 2013-- the date the Order was time-stamped and filed of record with the Register of Wills. In Pennsylvania, notice of entry of an order is deemed provided on the date the Order is entered on the docket and distributed to the parties. See Pa. R. Civ. P. 236; Pa. R. A. P. 108 ("The date of entry of an order in a matter 3 subject to the Pennsylvania Rules of Civil Procedure shall be the day on which the clerk makes the notation in the docket that notice of entry of the order has been given as required by Pa.R.Civ.P. 236(b)")). Here, the Court's Order directing Petitioner to file a verification was docketed on December 2, 2013, and Petitioner timely filed her verification on December 19, 2013, well within the twenty (20) day time frame established by the Court. 5. The averment in Paragraph 5 constitutes a conclusion of law to which no response is required. To the extent a response is required, the averment in Paragraph 5 is specifically denied. The Court directed Petitioner to file a verification within twenty (20) days after entry of the Order. The Order was entered on the docket and distributed to the parties on December 2, 2013, thereby making the filing deadline Monday, December 23, 2013. Petitioner timely filed her verification on December 19, 2013, well within the Court mandated time frame. To the extent that the twenty day period ran from November 27, 2013 (and not December 2, 2013), which is denied, Petitioner's technical violation of the Court Order may be disregarded because Respondent has not alleged any harm or prejudice by the alleged late filing of the verification. The Pennsylvania Rules of Civil Procedure, and the Cumberland County Local Orphans' Court Rules are to be "liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court . . . may disregard any error or defect of procedure which does not affect the substantial rights of the parties." See Pa. R. Civ. P. 126; C.C.O.C.R. 2.1. In Pennsylvania defective verifications are routinely considered de minimus technical violations of the Rules, and courts are reluctant to dismiss matters for this type 4 of error. See Lewis v. Erie Ins. Exchange, 281 Pa. Super. 193, 199, 421 A.2d 1214 (1980)(trial court erred in dismissing petition based on improper verification "[s]ince appellant attempted to comply with the rules and the error was of a de minimus technical nature that did not prejudice the substantive rights" of the defendant); Erie King v. Weiser, 140 Pa. Commw. 90, 591 A.2d 770 (1991)(trial court did not abuse its discretion in allowing an action on an unverified petition to proceed where defendants "have not alleged any consequences resulting from the trial court's decision which caused them manifest or palpable injury"). In this case, Petitioner's verification has been on record since December 19, 2013. It is clear that Petitioner's verification (mailed December 18, 2013) clearly crossed in the mail with Respondent's Motion to Dismiss (likewise dated December 18, 2013). Furthermore, Respondent has not, and cannot, show any prejudice in connection with the December 19, 2013 verification, which has now been on record for three weeks. Under these circumstances, Petitioner's Motion to Dismiss is without merit and should be denied. 6. The averment in Paragraph 6 is specifically denied for the reasons set forth in Paragraphs 1-5 above. Petitioner comptied with the Court Order directing her to file a verification, and timely filed her verification of record on December 19, 2013. 7, The averment in Paragraph 7 is specifically denied for the reasons set forth in Paragraphs 1-5 above. Petitioner has filed a verification of record, and there is no legal basis to dismiss the Petition with prejudice. WHEREFORE, Petitioner, Mary Adams, respectfully requests that Respondent's Motion to Dismiss be denied. 5 Respectfully submitted, RHOADS & SINON LLP Dated: ��-( BY� Sc t Alan Mitchell A . I.D. #76124 J lian M. Golden Atty. I.D. #206510 One S. Market Square, 12t" Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Petitioner 6 CERTIFICATE OF SERVICE I hereby certify that on this 13`h day of January, 2014, a true and correct copy of the foregoing document was served by means of United States mail, first class, postage prepaid, upon the following: Jason P. Kutulakis, Esquire Abom & Kutalakis 2 West High Street Carlisle, PA 17013 � Jo ie . Koons . . . . . � � . � . . . . _ . .� . .. �.� .\. " 549937.1 IN RE: PATRICK J. MQLLE, ��r ��t.�� An Alleged Incapacitated Person ��-� 3� �� . �: � �„ � � IN THE COURT OF COMMON PLEAS �,; --- �-- OF THE NINTH JUDICiAL DISTRICT -_ a, r� - _,. - � ca ��r � � � ° � ORPHANS' COURT DIVISION c-�' ° � �^ C: �.°' N � � �ct �� `'-' � --� 21-2013-1189 � ;� � � � t� � U U � �t1 � W �I RE:g�LIMINARY O�JECTIONS TO PETIT��f�l�'S P�T!TaQN ��; � �= AP�OINTM�IT OF EMERGENCY AND FULL PLENARY GUARDIAN OF THE ``� ESTATE OF PATRICK J. MOLLE � ORDER OF COURT AND NOW, this�i�'day of November 2013, upon review of the Preliminary Objections to Petitioner's Petition for Appointment of Emergency and Full Plenary Guardian of the Estate of Patrick J. Molle, and it appearing that Scott A. Mitchell, Esq., attorney for Petitioner, signed the Verification rather than Petitioner�, it is hereby ORDERED tha# Petitioner provide a properly executed Verification within twenty (20) days. , Thomas A. Placey C.P.J. Distribution List: Jason P. Kululakis, Esq. Scott A. Mitchell, Esq. ` Pa.R.C.P: 1024 requires that the verification be made my one or more of the parties unless all parties lack sufficient knowledge or are o!�tside of the jurisdiction of the court. While Pa.R.C.P. 1024 specifically applies to pleadings, the Superior Court extended the application to petitions in Monroe Contract Corp. v. Harrrson Square, Inc., 405 A.2d 954, 957 (1979). When verification is made by a non-party, the reason(s) why the party did not make the verification must be stated. See Triffin v. Thomas, 462 A.2d 1346, 1350 (Pa. Super. 1983) (citing Warren v. Williams, 88 A.2d 406, 407 (Pa. 1952)). . . .. � � � ' � . .. � . . . . � . . . . . . . � � �. . . � . . . . . . . . . . . � . . ' . . . . � . . , .. .�... . . . .. �� . . � . � . , ... ... .. . . ' . � .. . � . � � . . . . � � � . .. � � . � .. � ..,� . 549937.1 � Scott Alan Mitchell ph(717)231-6602 RHOADS & S INON LLP fal,(717))260g44029 Reply to Harrisburg Office LANCASTER HOURS Bl'.APPOINTMENT FiLE�.o: 13233/1 December 18, 2013 Re: In re: Patrick J. Molle File No. 21-13-1189 Glenda Farner-Strasbaugh Clerk of Orphans' Court 1 Courthouse Square, Room 102 Carlisle, PA 17013 Dear Ms. Farner-Strasbaugh: Pursuant to Judge Placey's Order of November 27, 2013 (time-stamped on December 2, 2013), I am enclosing an original signed Verification of the Petitioner in the above-referenced matter. Please file the enclosed Verification as part of the Petition previously filed in this matter. cA_ �- ? ° `-�Thd�fn c you �or�ur assistance. iwJ __. � � �.� ._ , __ �� C> � _ _.. � t..i.� r y �� V `'- `"`' �'— �"� C' � Ver trul ours �-:� � :,� Y Y Y � i,�_� 'a., � � � ._�`.i � � -.J � � RHOADS & SINON LLP ��^ C!) c� U � W � � c.�s � [I� E1.! �J c-> � _ r_r_ � '_ v By. Scott A an i c Enclosure One South Market Square, 12th Floor • P.O. Box 1146 • Harrisburg, PA 17108-1146 • ph: 717.233.5731 29 Dowlin Forge Road • Exton, PA 19341 • ph: 610.423.4200 • fax: 610.4Z3.4201 931726.1 www.rhoads-sinon.com VERfFICfaTIOt� i, f��ary�dams, �ereby ver�iy that the st�temer�s ma�e in the f�reg�ing document �re �rue and correct ±o the bes; ef my kncv�rE�dge, inicrr�atian ard beli�f. I understand that false st�,temerts herEin are made s�bject to penalties of 18 Pa.C.S.A. Section 4904, ��`EHE�iit`"J. iV uif�J�v1e{ i�l�iV�Ev��ft�� C� �uuLi�ivrE��. 1 1 ' �/ � .,,�� / ) �....�f`�•��4'� (' ` . /s C��te Mary�,dams / t, �. 4„; e t:�, PS7 r`{ ,W__ M„.. _.._ �--a � � ._.. :-] _ _ - > <--> _. .. �, 4) .._ �- C�_ � ��'; - � �'�= :�'= .v.. � � � , , .-.- � � � � :J� �� c—i _! "a Q„' ^ r_ <� � W Cv � c� �- �E] O �.'3 G 1 �' � c� �V � � � � � C.�, °?9630 i