HomeMy WebLinkAbout02-09-05
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MILDRED J. GERBER
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: WMBERLAND COUNTY,PENNSYLVANIA
: QRl?MANS' COUBT CIVI51t)N
: Ne. 21-01-92
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UNDER, ,e""GREEME, NT DATED
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: CUMBERLAND COUNTY, PENNSYLVANIA
: OBPHANS' CQYRT Ii)IVISION
: Ne. 21-2002-0540
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BRIEF SUBMITTED BY MARILYN GERBER, PRO SE
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Marilyn Gerber,Pro Se, submits this Proposed Auditor's Report"Si'il'lf pui"$Jant
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to the direction of the Auditor, William A. Duncan, Esquire, appointed byOrderscbf
Court dated November 25,2003, in the above matters. A lengthy pericl(j,of deliJYs,
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discovery and pre-trial procedures, a hearing was held in this matter before Alllditor
Duncan on September 28-29, 2004. All Citations to the record herein to the
Transcript ("Tr") of the hearing before Auditor Duncan and the Exhibit's to that
Transcript,unless otherwise noted. Exhibits designated with an "5" were admitted by
stipulated agreement of the parties, while exhibits designated with an "0" were
introduced by Marilyn Gerber and Exhibits designated with "PNC" were introduced by
PNC.
I. PROCEDURAL HISTORY:
1. In the first above captioned action, PNC Bank, N.A. ("PNC") was appointed
Guardian of the Estate of Mildred J. Gerber (hereinafter the "Guardianship Estate") on
March 22, 2001. (Exhibit 8-1).
2. Frederick E. Gerber,1I was appointed Plenary Guardian of the Person of
Mildred J. Gerber on December 21,2001. (Exhibit PNC-5).
3. Prior to PNC's appointment as Guardian of the Estate and Frederick E.
Gerber, II's appointment as Guardian of the Person, Frederick E. Gerber,1I served as
Agent for Mildred J. Gerber under financial and medical Posers of Attorney.(Exhibit-6).
4. The second above captioned action concerns matters related to the
Mildred J. Gerber Revocable Trust, dated December 19,1997, as amended, revised
and restated on August 2,1999 and January 25,2001 (hereinafter the ''Trust'').
Exhibit 5-4 and S-5).
5. On October 3,2001, acting as Guardian of Mildred J. Gerber, PNC
removed Frederick E. Gerber,lI, as Trustee of the Trust and designated PNC as
Successor Trustee of the Trust. (Exhibit S-6).
6. On October 1,2002, acting as Guardian of Estate, :PNC removed all of
the tangible property of 623 Hilltop Drive, New Cumberland, Pennsylvania which was
the residence of Mildred J. Gerber. Marilyn Gerber resided in this residence and
family home from 1996 until January 13,2001 as well as this being her family home
since 1968. Marilyn Gerber made an offer on the real estate of the aforementioned
real estate on October 1,2002 in person to Mr. David Brown of PNC Bank and via
facsimile to Mr. David Brown of PNC Bank, the Estate and Trust administrator for
Mildred J. Gerber.
7. On November ,2002, PNC Bank filed as Guardian a Petition for the Sale
of the Property at 623 Hilltop Drive, New Cumberland, Pennsylvania.
8. Marilyn Gerber, a beneficiary of the Estate and Trust of Mildred J. Gerber
J. filed a Stay of the Property at 623 Hilltop Drive, New Cumberland, Pennsylvania.
9. On December 16, 2002, PNC Bank appeared in Orphans' Court before
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Juoge George Hoffer for a hearing for the Sale of the Property at 623 Hilltop Drive,
New Cumberland, Pennsylvania. Judge Hoffer denied Marilyn Gerber's Stay for the
Sale of the Property at 623 Hilltop Drive, New Cumberland, Pennsylvania and
approved the sale of the Property.
10. On December ,2002, Marilyn Gerber, filed an appeal in the
Pennsylvania Superior Court over the Sale of the Property at 623 Hilltop Drive,
New Cumberland, Pennsylvania.
11. Mildred J. Gerber died on January 14,2003, survived by three children,
Marilyn Jo Gerber, Frederick E. Gerber,1I and Jane Noel Heflin.
12/ On June ,2003, Marilyn Gerber made another offer of the real estate
at 623 Hilltop Drive, New Cumberland, Pennsylvania to Richard Rupp, Esquire,
attorney for Frederick E. Gerber,lI, Executor for Mildred J. Gerber and Trustee of the
Fred E. Gerber,Sr. Trust.
13. On October 24,2003, PNC filed an accounting of its administration of
the Guardianship Estate since the time that PNC was appointed Guardian on
March 22,2001 (the "Guardianship Account"). The Guardianship Account states
transactions from March 23,2001 through October 20,2003. (Exhibit S-1).
14. On the same date, PNC filed a Petition for the Advance Distribution of
the real estate in the Guardianship Account to the Executor of the Mildred J. Gerber
Estate, Frederick E. Gerber,11. This Court ordered the advance distribution of the
real estate on November 13,2003. (Exhibit S-15).
15. On October 24,2003, PNC filed an account of the administration of the
Trust since the time that PNC became Successor Trustee on October 3,2001 (the
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"Trust Account"). The Trust Account states transactions from October 3,2001 through
October 20,2003. (Exhibit S-2).
16. On or about November 21,2003, Marilyn Gerber ("Ms. Gerber"), Mildred
Gerber's first child and eldest daughter, filed Objections to both the Trust Account and
Guardianship Account (the "Objections"). Marilyn Gerber is a beneficiary of both
the Estate and the Trust of Mildred J. Gerber. (Exhibit S-7).
17. By Orders dated November 24,2003, this Court appointed William A.
Duncan, Esquire as Auditor in both of the above matters to hear the Objections filed by
Ms. Gerber to the Trust Account and Guardianship Account. (Exhibit S-9,S-10).
18. On or about December 15,2003, PNC filed an Answer to Marilyn Gerber's
Objections to the Trust Account and Guardianship Account. (Exhibit S-8).
19. By Orders dated July 8, 2004, this Court continued the appointment of the
Auditor until January 31,2005 in both of the above matters. (Exhibit S-11 ,S-12).
20. By Notice dated September 14,2004, the Auditor provided notice to all
parties that the Hearing on both matters would be held on September 27-29,2004,
with a possible continuance. (Exhibit S-13,A 14).
21. By Stipulation of the parties filed September 27,2004, it was agreed as
follows: the Hearing would be held September 28-29,2004; the scope of the Hearing
would be limited to the administration of the Trust and Guardianship Account; the
scope of the relevant time periods would be limited to the time period from October 3,
2001 to October 20,2003, in the case of the Guardianship Estate; and the subject
matter of the Hearings would be limited to those maters which are relevant to the
Objections raised by Marilyn Gerber and PNC's defense of those Objections, which
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include as to both the Guardianship Estate and Trust the alleged mismanagement
of assets, including real property and tangible and intangible personal property,
alleged improper investment, alleged improper involvement of Frederick E. Gerber,1I
alleged improper expenditures, alleged excessive fiduciary fees, and alleged
excessive attorneys' fees. Exhibit 8-16).
22. By stipulation of the Parties filed December 17,2004, it was agreed that all
pending Motions in both of the above actions were withdrawn without prejudice, the
substance and content of such withdrawn Motions to be argued in the proposed
Auditor's Report to be submitted by the parties.
23. By Orders dated December 7,2004, this Court continued the
appointment of the Auditor until March 31,2005, in both of the above matters, and
dismissed all pending Motions and Petitions in both matters without prejudice.
II. Statement of Issues
24. Marilyn Gerber Objected to both the Guardianship Account and the
Trust Account alleging that PNC failed to provide documentation for each transaction
shown in the Accounts on an ongoing basis from March 2001 and kept the
beneficiaries in the "dark".
25. Marilyn Gerber objected to the fees for services and extraordinary
services charged by PNC as Guardian and Trustee. (Exhibit 8-7 28,54,82,84,98).
26. Marilyn Gerber objected to the fact that on or about October 3,2001 ,
PNC took the Mildred J. Gerber Trust away from Frederick E. Gerber,1I and failed to
inform all of the beneficiaries and generated fees and enormous legal fees through
Rhoads & Sinon as well as mismanaged this Trust.
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27. Marilyn Gerber objected to PNC's investment of the assets of the
Trust and the subsequent losses incurred by PNC's investments. (Exhibit S-7,78).
28. Marilyn Gerber objected to the fees of Rhoads & Sinon, LLP, as attorney
for PNC. (Exhibit S-780,83).
29. Marilyn Gerber objected to PNC Bank conspiring with Frederick E. Gerber
II to defraud Marilyn Gerber from her beneficiary rights, and deliberately prevented
her from any assess or information about the issues and management of the Estate
and the Trust.
30. Marilyn Gerber objected that PNC Bank deliberately lied on December
16,2002 before Judge George Hoffer in not revealing that Mr. & Mrs. Timothy Losh
had indeed withdrew their offer to purchase the personal property and home of
Mildred J. Gerber and that there was no immediate buyer other than Marilyn Gerber
whom they failed to acknowledge had made an offer for this property and made a
claim that this property had been assigned to her by her father, Fred E. Gerber,Sr.
31. Marilyn Gerber objected that PNC Bank did not manage the personal
and tangible property of Mildred J. Gerber accurately.
32. Marilyn Gerber objected that PNC Bank failed to accurately inventory the
personal property of Mildred J. Gerber upon their appointment as Guardian of Estate.
33 Marilyn Gerber objected that PNC Bank on October 1,2002, removed
all of the tangible personal property of Mildred J. Gerber and that of Marilyn Gerfler
and placed it in storage without notice to all of the beneficiaries and conspired with
Jane Heflin and Frederick E. Gerber,!1 to do so on this day.
34. Marilyn Gerber objected that PNC Bank refused to allow Marilyn Gerber
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to inventory and identify her personal property at 623 Hilltop Drive, New Cumberland,
Pennsylvania and have retained her property in storage and have refused to give
this tangible personal property to her.
35. Marilyn Gerber objected that PNC Bank upon assuming the Mildred J.
Gerber Trust, conspired with Frederick E. Gerber,1I and Richard Rupp, Esquire to
prevent Marilyn Gerber from her beneficiary inheritance by not challenging the
third amended version of this Trust dated January 2001 thereby profiting from this
Trust's management and excluding Marilyn Gerber from any inheritance. PNC Bank
had the opportunity to revoke this Trust of January 2001 knowing that Mildred J.
Gerber had Alzheimer's.
36. Marilyn Gerber objected that PNC Bank threatened to sue her if she
would make public her concerns and information about PNC Bank's management
of the Estate and Trust of Mildred J. Gerber.
37. Marilyn Gerber objected that PNC Bank waited for a significant tirne
period from March 2001 until June 2002 before they entered into Court a Motion to
demand accounting from Frederick E. Gerber,1I for the Mildred J. Gerber Trust and
the Fred E. Gerber,Sr. Trust. Marilyn Gerber objected stating that PNC conspired
with Frederick E. Gerber, II to cover up the fact that Frederick E. Gerber, II continued
to write checks and mismanage the Mildred J. Gerber Trust and Estate despite that
PNC Bank was the Court appointed Guardian of Estate and had assumed the
Mildred J. Gerber Trust on October 3,2002. PNC Bank failed to inform her or this
Court of the problems they were having.
38. Marilyn Gerber objected that PNC Bank PNC Bank did not immediately
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marshal the assets and investments of Mildred J. Gerber in March 2001 and
especially those investments with Charles Schwab in October 2001 and did not inform
the beneficiaries of the significant financial losses that Frederick E. Gerber, II had
incurred even when they were Guardian of Estate of Mildred J. Gerber and the Trustee
of the Mildred J. Gerber Trust. PNC Bank failed to inform this Court that Frederick E.
Gerber,1I had written checks on margin for expenses that he was not to access.
39. Marilyn Gerber objected that PNC Bank showed preferential treatment
to Jane Heflin when she had illegally taken Mildred J. Gerber's car without permission
out of state and after multiple warnings of repossessing this car, they extended a
favorable loan to Jane Heflin despite that Marilyn Gerber had requested her interest
in purchasing this car. PNC Bank incurred excessive legal fees and cost with
Rhoads & Sinon, their Bank and did not inform the other beneficiaries of the problems.
40. Marilyn Gerber objected that PNC Bank never informed this Court or
the beneficiaries that they were incurring significant legal costs and administrative
expenses due to Frederick E. Gerber,II's non compliance and mismanagement and
PNC Bank never sought relief with this Court to curtail his actions.
41. Marilyn Gerber objected that PNC Bank did not file a timely report of
Guardianship of Estate upon the death of Mildred J. Gerber. Mildred J. Gerber died
on January 14,2003. PNC Bank continued to operate and still charges fees and
excessive legal fees as Guardian of Estate until this day in 2005.
42. Marilyn Gerber objected that PNC Bank never monitored, supervised
the excessive medical expenses, costs and moneys that Frederick E. Gerber, II and
Jane Heflin took for fees, expenses from the Mildred J. Gerber Estate, the Mildred J.
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Gerber Trust and the Fred E. Gerber,Sr. Trust and never monitored on a monthly
basis the fees and expenses of Mildred J. Gerber while she lived in Pennsylvania or
in Chicago, Illinois. PNC Bank never made a visit to inspect, check or supervise
on the financial needs of Mildred J. Gerber especially when she was taken out of
state without their knowledge and incurred huge financial fees for her care, for
legal actions taken by Frederick E. Gerber,1I and Jane Heflin against Marilyn Gerber
and incurred excessive costs for Mildred J. Gerber's care in Illinois versus appropriate
costs which she incurred in Pennsylvania. PNC Bank never made this Court aware
of their serious concerns and issues they had concerning Mildred J. Gerber being
taken out of state 36 hours after Frederick E. Gerber,1I was granted Guardianship of
Person.
43. Marilyn Gerber objected that PNC Bank did not seek legal action in this
Court when Frederick E. Gerber,1I sought relief under the Soldiers and Sailors Relief
Act to obtain an extension of six months upon these Accountings and pending
hearings when the truth was they knew that Frederick E. Gerber,1I was in the USA
and available for depositions, court appearances, etc.
44. Marilyn Gerber objected that PNC Bank has conspired to pay all of the
requested expenses and fees that Frederick E. Gerber,1I and Jane Heflin have
billed the Estate or Trust of Mildred J. Gerber while refusing to ofter or pay for any
expenses Marilyn Gerber has incurred in caring for Mildred J. Gerber prior to and
after her death on January 14,2003.
45. Marilyn Gerber objected that PNC Bank never created a budget or
worked with all of the beneficiaries for the welfare of Mildred J. Gerber and then
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the beneficiaries. PNC Bank failed to generate wealth but instead dissipated the
Estate and the Trust. PNC Bank refused to dialog with Marilyn Gerber over her
concerns of the losses incurred from their investments of the Estate and the Trust.
PNC Bank never formulated a cost comparison of expenses for Mildred J. Gerber for
her medical expenses, living expenses and her investment needs despite that
Marilyn Gerber filed a motion asking this Court to order PNC Bank to do a cost
analysis.
46. Marilyn Gerber objected that PNC Bank failed to prove who owned
the Baltimore Property and in which Estate or Trust this property belonged thereby
not marshaling the assets and the rental income from this Property. PNC Bank
failed to follow through on receiving the rental income from this property from March
2001 to January 2003 and through the present as they are still the Guardian of
Estate. These unmonitored and unreceived rental moneys approximated to
more than $16,000 with a monthly rent of $400.00.
47. Marilyn Gerber objected that PNC Bank failed to communicate directly
with Marilyn Gerber but instead had a hostile, acrimonious relationship with her
while conspiring with Frederick E. Gerber,1I and Jane Heflin and provided them with
vital beneficiary information concerning the Estate and the Trust.
48. Marilyn Gerber objected that PNC Bank allowed Frederick E. Gerber,1I
to continue to write checks on the PNC checking account of Mildred J. Gerber, and
the Mildred J. Gerber Trust and did not inform this Court of continued patterns of
Frederick E. Gerber,1I attempt to enrich himself and defraud other beneficiaries
as well as took moneys from Mildred J. Gerber's restricted Trust for his own personal
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enrichment.
49. Marilyn Gerber objected that PNC Bank continued to copy attorney
Stanley Laskowski, Esquire despite Marilyn Gerber's frequent telephone calls and
letters that he did not represent her and that she was acting as Pro Se. This incurred
needless fees, mailing, etc. of the Estate and Trust.
50. Marilyn Gerber objected that PNC Bank morally and ethically failed
to protect Mildred J. Gerber in their capacity as Guardian of Estate and Trustee of
her Trust especially when she was taken without her will to Chicago, she was left
alone in her home frequently and subsequently sustained a serious injury which
ultimately contributed to unnecessary pain and degeneration of her health.
51. Marilyn Gerber objected that PNC Bank never managed the tangible
personal property of Mildred J Gerber while she was in Chicago. PNC Bank never
made an eye witness accounting of her tangible personal property taken from
Pennsylvania to Chicago but left significant personal property in the home of
Mildred J. Gerber when it was put up on the market for sale and ultimately sold.
52. Marilyn Gerber objected that PNC Bank failed to file Federal and State
income tax reports on a timely basis.
53. Marilyn Gerber objected that PNC Bank failed to file claims with
appropriate insurance companies after she reported to PNC Bank that there had
been damage in the home of Mildred J. Gerber.
III. StlDulatlons of Darties on December 7.2004
54. All parties present which were Marilyn Gerber acting as Pro Se and
Joanne Christine, Esquire and Heather Kelly,Esquire of Rhoads & Sinon signed
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stipulations prior to the start of the hearing in which they agreed that all unheard
motions that Marilyn Gerber had filed from the period of March 23,2001 through
October 20,2003 could be argued in her brief as all previous motions and pleadings
had been dismissed without prejudice by this Court. Joanne Christine, Esquire
requested the opportunity to write a rebuttal and Marilyn Gerber,Pro Se requested
the opportunity to rebuttal PNC Bank's rebuttal on the opinions of the unheard
motions. This was decided at a status conference before Auditor William A Duncan,
Esquire in which the schedule for the deadline for submission of briefs was
decided. PNC Bank would submit their brief by January 10,2005 and Marilyn
Gerber would submit her brief by February 9,2005.
IV. Finding of Fact:
55. Marilyn Gerber is representing herself as Pro Se. Marilyn Gerber has
chosen to write this Brief in "natural language" and organize it in the following
manner:
Marilyn Gerber will argue her findings of fact by category of events:
A. ERRORS OF THE COURT
B. UNHEARD MOTIONS
C. ERRORS OF THE AUDITOR
D. DEPOSITIONS OF Mr. David Brown, Frederick E. Gerber,11.
E. MIS$I~ DOOIJMENTS EOOM F'NC BANK, UNAVAILABlE
ORIGINAL DocuMENTS
F. FINDINGS OF FACT OF ACCOUNTING FILED BY PNC BANK
G. c:;QI\IFI.Jc:;~ WITH QTH~R P~I\I~II\I@ H~RI~~ QF THE:
ACCOUNTING OF FREDERICK E. GERBER,IIFOR THE
MILDRED J. GERBER TRUST AND THE FRED E. GERBER,SA.
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TRUST SCHEDULED JULY 2005.
H FUTURE MOTIONS TO BE FILED BY MARILYN GERBER, PRO SE
A. ERRORS OF THE COURT:
56. Marilyn Gerber does not believe that the Auditor shall be able to
make a thorough report with conclusions and recommendations to this Court due to
the fact that this Court erred in several decisions which were made over the course
of the period of discovery for these hearings. During the several delays and
many status conference hearings that were held , Marilyn Gerber experienced
obstruction to her requests for discovery from key sources such as Charles Schwab
which held the bulk of the financial investments and assets for the Mildred J. Gerber
Trust; PNC Bank which had all of the information of all of the financial checking
accounts of Fred E. Gerber,Sr. who passed his estate on to Mildred J. Gerber upon
his death on February 22, 1998 and who failed to marshall all of the checking
accounts of Mildred J. Gerber from 1998 to their appointment as Guardian of Estate
on March 22,2001; key administrative individuals at PNC Bank such as Ms. Jennifer
Conway who gave PNC Bank all of the checks written from February 1998 to
March 22,2001 to Mr. David Brown.
The result is that Marilyn Gerber served Mr. Jeffrey Roes of Charles Schwab,
the investment bank in Harrisburg, Pennsylvania and Ms. Jennifer Conway of
PNC Bank, New Cumberland, PA Branch supoenas on or about April 26,2004
to produce documents for the Mildred J. Gerber Trust. On April 27,2004,
Marilyn Gerber wrote Ms. Joanne Christine of Rhoads & Sinon and informed her
that she had served supoenas to depose: Mr. Jeff Roes & Mr. Brian Rheam of
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Charles Schwab from the Harrisburg Branch as well as Ms. Jennifer Conway of
PNC New Cumberland Branch and Mr. Frederick E. Gerber, II, Mr. Richard Rupp and
Mr. Herbert Rupp,Esquire Supoenas were served by mail and fax to Charles
Schwab's Corporate legal headquarters in San Francisco on May 7,2004. In the
meantime, PNC Bank and Charles Schwab collaborated together to have PNC Bank
enter a Motion to Quash any production of documents or depositions of Mr.
Jeffrey Roes and Brian Rheam of Charles Schwab and Ms. Jennifer Conway of
PNC Bank. This Motion to Quash was submitted to this Court on May 7,2004 and
proof of service was served and mailed to Marilyn Gerber on May 7,2004. It can take
up to two days for mail to reach Lemoyne, PA. On MAY 10,2004, Judge Hoffer
signed and upheld PNC Bank and Charles Schwab's Motion to Quash all production
of documents and depositions of the above named individuals and institutions.
Marilyn Gerber was DENIED any opportunity to discover the true assets of
Mildred J. Gerber from March 22,2001 and especially what assets she had just
prior to PNC Bank's appointment as Guardian of Estate in an attempt to marshal
all of Mildred J. Gerber's assets and investments which was what PNC Bank should
have done and ultimately did not do. Production of documents from Charles
Schwab would have produced all financial records of assets and investments for
the Mildred J. Gerber Trust of which PNC Bank assumed in October 2001. Charles
Schwab would have to declare and disclose all of the commissions and fees that
were already paid by the former Trustee, Frederick E. Gerber,lI, the success or failure
of the investments by the former Trustee as well as what was sold, what the
commissions were as well as all of the documents, correspondence and information
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that transpired when PNC Bank became Guardian of Estate in March 2001 and
then ultimately took the Trust investments from Charles Schwab and then invested
these moneys in PNC Bank's OWN RETAIL INVESTMENTS, effectively double
dipping in commissions that had already been paid, and then charging there own
commissions and purchasing fees. PNC Bank never wanted Marilyn Gerber to
discover the "margin interest fees and losses" that were sustained when PNC Bank
was Guardian of Estate and what was lost during the six and half months that they
waited to "marshal Mildred J. Gerber's assets and investments" and ultimately
took over Mildred J Gerber's Trust from Frederick E. Gerber,1I which also provided
them with additional annual fees and administrative fees. Judge Hoffer NEVER
afforded Marilyn Gerber the opportunity to answer PNC Bank's motion to quash
these depositions and production of documents and effectively signed this
motion to quash IMMEDIATELY upon its receipt. The result of this action is that
the Accounting and Marilyn Gerber's request for surcharge of PNC Bank cannot
be accurately determined UNTIL the Accounting of Charles Schwab and the other
investments portfolios are REVEALED during the upcoming hearings of the
Mildred J. Gerber Trust and the Fred E. Gerber,Sr. Trust in July 2005. It is
inconceivable that ANY ACCOUNTING from PNC Bank could be signed off or
approved without documents and depositions from PNC Bank and Charles Schwab.
It is also Marilyn Gerber's belief that the depositions and documents form Ms.
Jennifer Conway and Charles Schwab would have demonstrated a collaboration
between Frederick E. Gerber, II and PNC Bank prior to PNC Bank planning to become
the Guardian of Estate and that they planned to assist Frederick E. Gerber,1I in
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filing and being appointed the Guardian of Person for Mildred J. Gerber. These
undisclosed actions due this Court's failure to allow discovery of the above mentioned
parties effectively allow losses to occur which would have resulted in further
surcharge of PNC Bank and ultimately Frederick E. Gerber,11.
Auditor, William A. Duncan, Esquire has permitted Marilyn Gerber to finally
depose Charles Schwab, and Mr. Brown of PNC Bank but not Jennifer Conway
of PNC Bank for the upcoming hearings of the Accounting for the Mildred J. Gerber
Trust and the Fred E. Gerber, Sr. Trust. It is the firm belief that this Auditor should
request in his brief and recommendations of this Court that documents and
a deposition of Charles Schwab and Ms. Jennifer Conway of PNC Bank should
occur prior to this Court approving PNC Bank's Accounting.
57. Another motion was also not heard by this Court: On the March 17,2001,
Marilyn Gerber filed a Motion for Court to Order Accounting and Production of
All Documents Pertaining to the Power of Attorney, Executor and Trustee Positions
Held by Frederick E. Gerber, II for Mildred Jane Gerber and All Trusts whereby
Mildred Jane Gerber is a Beneficiary. While this motion was filed just a few days
prior to March 22,2001 when PNC Bank was appointed Guardian of Estate, if this
Court had heard this Motion and ultimately made a ruling on this motion, many, many
financial assets, accounting questions and discrepancies would have been disclosed
which were ultimately disclosed when PNC Bank FINALLY filed motions for
Accounting of the Mildred J. Gerber Trust and the Fred E. Gerber, Sr. Trust in June
2002 when they took over the Mildred J. Gerber Trust in early October of 2001.
This Court again failed to hear this Motion supported serious accounting concerns,
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questions as to where assets were, irregularities by Frederick E. Gerber, II and
PNC Bank which were ultimately supported when Frederick E. Gerber,1I had to
provide Accounting on July 8,2002. Had this Motion been heard and accounting
was ordered, significant moneys would have been saved, PNC Bank would have
had to act quicker than they did instead of waiting until June 2002 to demand
Accounting for the Mildred J. Gerber Trust. Ultimately, PNC Bank NEVER really
filed a motion for Frederick E. Gerber,1I to file an accounting of the Mildred J.
Gerber Estate or the Fred E. Gerber Estate which would have revealed where ALL
OF MILDRED J GERBER's ASSETS ARE. Marilyn Gerber shall now have to file
motions asking the open up the Estate of Mildred J. Gerber and Fred E. Gerber,Sr.
to demand accounting as well as all of the PNC checks that were written from their
joint checking account in order to prove that PNC Bank NEVER marshaled all of
Mildred J. Gerber's assets and that Frederick E.Gerber, II and Jane Heflin defrauded
Mildred J Gerber and Marilyn Gerber of moneys.
58. Another motion which this Court NEVER heard is the Petition to Cite
Guardian of Estate, PNC Bank, to File An Accounting of Administration, An Accurate
Inventory and An Accurate Annual Report. Marilyn Gerber filed this motion on
or about October 7,2002 after 18 months went by and PNC Bank REFUSED to
provide ANY accounting or information on the assets, investments and administration
of the Mildred J. Gerber Estate. If this Court had heard this motion, it would have
revealed all of the excessive legal costs that PNC Bank paid to Rhoads & Sinon, it
would have revealed the problems that they were having with Frederick E. Gerber,1I
well as with Jane Heflin not to speak of the multiple issues that PNC Bank had just
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taReh the Mildred J. Gerber Trust from Frederick E. Gerber,1I and all of the margin
interest fees would have been revealed. These facts trailed until finally PNC Bank
filed motions in June 2002 demanding Accounting from Frederick E. Gerber,1I and
production of documents, depositions and hearings are still pending. The result is
that if this motion had been heard, ordered and ultimately produced by PNC Bank,
Marilyn Gerber or any other beneficiary could have taken actions to correct the
losses that PNC Bank occurred, the extraordinary fees that they charged the Estate,
and prevented significant losses for the beneficiaries. This motion also was
filed for the Estate and Trust of Mildred J. Gerber.
59. Another motion which this Court did not hear was the Motion to Request the
Guardian of Estate PNC Bank 0 Produce a Cost Analysis of Home care of Mildred J.
Gerber in Her Home in New Cumberland and Care in Lombard, Illinois and at
Sunrise Assisted Living in Glen Ellyn, Illinois Including All Expenses. This motion was
filed by Marilyn Gerber on October 8,2002. Marilyn Gerber was approximately once
a week to Chicago under order from this Court to see her mother, Mildred J. Gerber.
Marilyn Gerber knew that expenses for Mildred J Gerber were significantly increased
and questionable in Chicago while she was being cared for my her sister, Jane
Heflin, then by Sunrise of Glen Ellyn, Illinois in comparison to being in her home
in New Cumberland, Pa. Marilyn Gerber wrote Richard Rupp,Esquire, Frederick
E. Gerber's attorney as well as Frederick E. Gerber,1I the Guardian of Estate of her
concern of Mildred J. Gerber's care and the expenses as well as PNC Bank- Mr.
David Brown. Marilyn Gerber had great concerns as to her physical and emotional
welfare and although PNC Bank was not the Guardian of Person, they were
Ii
"Shocked" that Mildred J.Gerber was taken without their knowledge to Chicago
36 hours after Frederick E. Gerber,1I testified that she would stay in her home in
New Cumberland and that Marilyn Gerber would be allowed to see her. PNC Bank
was charged in developing a budget and plan of how to spend the assets and
investments for Mildred J. Gerber's estate and Trust. They were charged to produce
income. PNC Bank knew that Mildred J. Gerber suffered from Alzheimer's and
that expenses for her care would have to be carefully managed as her disease
progressed. PNC Bank as Guardian of Estate ultimately decided anything that
happened to Mildred J. Gerber because most of "anything and everything" costs
money and they were the entity in charge of spending and budgeting and investing
her moneys. While Frederick E. Gerber,1I was the Guardian of Person he ultimately
had to ask PNC Bank for permission to spend moneys, make decisions about her
medical care based on her assets and budget. What Frederick E. Gerber,1I did was
to take moneys from her Trust, enrich himself and his children. He wrote for moneys
without informing PNC Bank. He wrote checks from the Fred E. Gerber,Sr. Trust
that were supposed to be paid from the Estate or Trust of Mildred J. Gerber which
was under the management and Guardianship of PNC Bank. Had this motion been
heard and upheld, PNC Bank would have had to produce accounting MUCH earlier
than they did and discovery and action would have occurred earlier. If this Court
had ordered this Accounting to be heard prior to PNC Bank's filing to sell the
Real Estate of Mildred J. Gerber, it is very possible that PNC Bank would have had
to argue that Mildred J. Gerber would have been better suited and safer in her
home in New Cumberland, PA. Ultimately by this Court NOT Hearing this Motion,
If
Mildred J. Gerber's home was packed up, sold and she became permanently
institutionalized and ultimately died in a non-skilled facility. PNC Bank ONLY filed
their Accounting on October 20,2003, ONE YEAR LATER than this Motion. What
was discovered were extraordinary legal fees, banking fees, looses in investments,
questions about rental income assets, property, and investments taken from
Charles Schwab and investments made by PNC Bank with their own institutional
retail investment products. Marilyn Gerber intends to pursue further action based
on PNC Bank's failure to disclose and lying before Judge Hoffer on December 16,
2002 when they stated that there were no appreciable differences in costs for the
care of Mildred J. Gerber between her care in New Cumberland, and Chicago. The
reality based on PNC Bank's production of documents for this hearing is that they
did not do any cost analysis and could not as they NEVER pursued accurate billing
from Betra Home Care, Sunrise of Glen Ellyn, Illinois and the home care that Mildred
J Gerber received while in Jane Heflin's home as PNC Bank was not aware that
Frederick E Gerber,1I was paying Jane Heflin and himself extraordinary fees for
themselves from the Fred EGerberSr. Trust. PNC Bank failed to curtail Frederick E
Gerber, II's actions and NEVER once came to this Court and asked for assistance or
disclosed the significant problems that they had with Frederick E Gerber,lI. Marilyn
Gerber believes this is because they had conspired in December 2000 and during
the Petition before this Court during the Guardianship of Estate and Person hearings
in Feb.lMarch 2001 and October/December 2001 respectively and PNC Bank could
not afford for information from Frederick E Gerber, II or Jane Heflin to be revealed
or they would face serious surcharge and Federal actions from several fiduciary
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us agencies. The upcoming hearings in July 2005 shall reveal more intensive
financial information through depositions, production of documents and discovery
by expert witnesses.
60. Another Motion which this Court did not hear was a Motion to Order
the Trustee, Frederick E. Gerber,1I to Produce the Following Documents. This
motion was filed by Marilyn Gerber on May 2,2003 and it asked for Frederick E.
Gerber,1I to produce documents from approximately from 50 sources and/or
individuals for the Mildred J. Gerber Trust. PNC Bank had not filed their Accounting
until October 20,2003 and Frederick E. Gerber,1I continued to spend for Mildred J.
Gerber through the Fred E. Gerber,Sr. Trust when PNC Bank should have been
attending to moneys taken by Frederick E. Gerber,1I from the Mildred J. Gerber Trust.
Marilyn Gerber did not receive documents through her demand for documents until
September 2004. These documents which Frederick E. Gerber, II produced in
late 2004 indicated his losses and misappropriation of moneys which had this
motion of May 2,2003 been heard and ordered by this Court would have enabled
this Petitioner to move to have him removed, sanctioned, as well as PNC Bank and
any further action and administration on their part. What occurred by this Court not
hearing this motion and granting this motion was a DELAY which resulted in moneys
being spent for which Marilyn Gerber intends to file further actions in this Court and
Federal Court for surcharge against PNC Bank and Frederick E. Gerber,lI.
61. Another unheard motion by this Court is Motion for Production of
Documents which Marilyn Gerber filed on June 10,2003 where she asks Frederick
E. Gerber,Sr to prove where in his Petition for Guardian of Estate in February 2001
J!
that he alleges that Marilyn Gerber took $74,000 from the accounts of Mildred J.
Gerber including her personal checking accounts with PNC Bank and with a PNC
credit card with MBNA. On January 25,2001, Frederick E. Gerber, II further alleges
that Marilyn Gerber took $185,000 of moneys over a six month period from
Mildred J Gerber and therefore has Mildred J. Gerber who is by now diagnosed with
Alzheimer's, change and amend her Trust which effectively cuts Marilyn Gerber
out of her will and Trust. Had this Court heard this Motion and ultimately ordered
the production of documents, Marilyn Gerber would have been able to support her
allegations that PNC Bank and Frederick E. Gerber,1I conspired to defraud Marilyn
Gerber out of her beneficiary and inheritance rights; PNC Bank would have had to
question the validity of this third and amended Trust agreement and therefore when
they took over the Mildred J. Gerber Trust in October 2001, they would have been in
the position vacate this amended version and restore Marilyn Gerber as a beneficiary.
PNC Bank did not do this due to a serious hostile and acrimonious relationship that
they harbored against Marilyn Gerber. PNC Bank would have been forced to explain
their involvement in this third amended Trust agreement of January 25,2001 as well
as how they became Guardian of Estate on March 22,2001. Marilyn Gerber intends
to further file actions concerning this amended Trust as well as the allegations that
Frederick E. Gerber,1I has made thus libeling and slandering this Petitioner and
causing her great financial and emotional damage which has affected her
receiving any moneys from the Fred E.GerberSr. Trust and ultimately currently the
Mildred J. Gerber Trust. PNC Bank and Marilyn Gerber could have also moved
jointly to removed Frederick E.Gerber, II and ask for financial sanctions for their
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both being deceived by Frederick E.Gerber, II. PNC Bank however is so intimately
involved in their conspiracy with Frederick E. Gerber, II that they had no interest or
desire to file such a similar motion or push this Court to hear this Motion.
62. Marilyn Gerber also filed on June 10,2003 called Motion to Freeze
the Mildred J Gerber Trust, the Fred E. Gerber, Sr. Trust and the Mildred J Gerber
Estate. Had this Court heard and upheld and ordered a Freeze on these two Trusts
and the Mildred J. Gerber Estate, approximately $200,000 would have saved from
being spent and misappropriated by Frederick E. Gerber,1I and spent by PNC Bank
through legal fees, lost investments, administrative costs. This Court has seriously
erred in not preserving the assets for the beneficiaries but instead allowed
Frederick E. Gerber, II and PNC Bank to waste assets which shall ultimately
seriously affect the inheritance of Marilyn Gerber. If this Court would have frozen
all of the assets of Mildred J. Gerber and Fred E. Gerber,Sr., it is very probable that
this ongoing contentious and bitter court fight on the part of Frederick E. Gerber,1I
against Marilyn Gerber would have come to a screeching halt. Frederick E. Gerber,1I
and PNC Bank would not have had access to legal fees and moneys for which to
ultimately enrich themselves and thereby preserved the assets and investments
for ALL the beneficiaries. Marilyn Gerber intends to further file appropriate
actions in this Court in an attempt to preserve what little remains.
63. This Court never heard any motion filed by Marilyn Gerber requesting
that Frederick E. Gerber,1I produce documents related to the PNC Accounting. There
are outstanding motions still pending in this Court and Marilyn Gerber has been the
right to resubmit motions which include a Motion for Sanctions for failure to produce
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aocuments concerning PNC for the upcoming hearings in July 2005. Had Frederick
E. Gerber,1I been ordered to produce documents, Marilyn Gerber would have had
vital financial information concerning PNC Bank's Accounting.
64. FINALLY, Judge George Hoffer has showed great partially and
disdain for Marilyn Gerber due to her filing a Superior Court appeal due to Judge
Hoffer's refusal to grant this Petitioner her due process, his conduct with her and
other issues of the competence of this Judge. Judge Hoffer's response has been to
ignore EVERY motion that she has brought to this Court since the December 16,
2002 hearings on the sale of the property of Mildred J.. Gerber. Judge Hoffer has
instantly signed all motions brought before him by PNC Bank, Charles Schwab or
Frederick E. Gerber,11. Marilyn Gerber suggests that Judge Hoffer should recuse
himself from any further involvement with the Accountings and issues regarding
the Mildred J. Gerber Estate, Trusts, the Fred E.GerberSr. Trust, and the Gerber
family especially actions affecting Marilyn Gerber.
In SUMMARY, if this Court had heard these motions as mentioned above, it
is the belief of this Petitioner that many of the financial losses and issues of the
the actions of PNC Bank and Frederick E. Gerber,1I would have been discovered
earlier and have prevented significant losses and emotional and financial pain to
this Petitioner. If this Court had especially decided to Freeze all of the assets of
the Mildred J. Gerber Estate, Trust and her interest in the Fred E. Gerber,Sr. Trust,
financial assets would be preserved, and the hearing and ordering the other motions
would have forced PNC Bank to act more appropriately and restate their Accounting
which would have and WILL ultimately surcharge them. However, until several of
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these motions are resubmitted and hopefully heard, this Auditor shall not be able
to make his recommendation to this Court and it shall not be ultimately possible
until the Accounting hearings scheduled in July 2005 are heard and decided that
these issues of Mildred J Gerber and Fred E. Gerber,Sr. shall be completed
and resolved.
C. Errors of the Auditor:
This Petitioner is constrained to include errors in his decision making
in the area of discovery and depositions as requested by Marilyn Gerber. While
it is appreciated that this Auditor is making the ultimate report to this Court, Marilyn
Gerber with respect must point out the consequences of his decisions preventing
her from deposing and seeking supeonas.
65. William A. Duncan refused to allow Marilyn Gerber to continue and
complete her deposition of Mr. David Brown, the Trust Administrator for the Mildred J.
Gerber Trust and the Guardian of Estate of Mildred J. Gerber. Marilyn J. Gerber
deposed David Brown on May 20,2004. After a lengthy attempt by PNC Bank to
avoid producing documents and filing a motion to quash her demand for documents
and interrogatories, PNC Bank on May 20,2004 produced approximately 4,000 pages
of documents which they allege wete ALL of the documents which they had in their
possession. Marilyn Gerber received documents which were not in order by
category, and were obviously separated, mixed up and presented in a fashion that
it took her four months to sort through. Marilyn Gerber was also denied by William
Duncan to view the original documents against the "4,000 pages" that were
photocopied and given to Marilyn Gerber on the day of the deposition of Dave Brown.
.2-)
Obviously, Marilyn Gerber could not examine all 4,000 pages, much less ask and
cross examine/depose David Brown on these documents. William Duncan decided
that Marilyn Gerber could finish her deposing of David Brown during the September
28,29,2004 hearings. The reality is that on September 28,29,2004 there was only
approximately less than 4 hours of direct cross examination by Marilyn Gerber which
did not result in her being to cross examine and admit 100's of documents provided
by PNC Bank. September 29,2004 was again limited as she cross examined
Frederick E. Gerber,1I after only being allowed to depose him on September 27,2004
and had no transcript with which to refer to and Frederick E. Gerber,1I refused and
did not produce documents despite multiple requests from William Duncan and a
motion to this Court. PNC Bank numbered their documents but they are not in
an order that Marilyn Gerber could view from their original nor continue and complete
her deposition of David Brown. The result of this decision is that crucial financial
cross examination of the Accounting was NEVER completed and it was a mad dash
at the end to try and complete and insert information and documents many of which
never were admitted or cross examined.
66. William Duncan only allowed Matilyn Gerber to depose Frederick E.
Gerber,1I on the day prior to the hearings of the PNC Accounting on September
27,2004. This deposition took place in the Grand Jury Room on the 5th floor of the
Cumberland County Courthouse and Frederick E. Gerber,1I did everything he could
to harass, delay, and obstruct this deposition which included having two sheriffs
present which intimidated Marilyn Gerber and which Frederick E. Gerber,11I intended
this effect. This deposition was almost essentially useless not to speak of the fact
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that she did not have a transcript to refer and prepare from for his cross examination
on September 29,2004. Had Marilyn Gerber received documents from Frederick E.
Gerber, II well in advance, Marilyn Gerber could have prepared better and had a more
productive deposition not to speak of the documents to support her objections of the
PNC Accounting. Marilyn Gerber believes that Frederick E. Gerber,1I conspired with
PNC Bank to defraud her of her beneficiary rights and that he has lied about having
correspondence and documents which she has filed before Judge Oler and has been
given the right to resubmit her Motion for Sanctions for Failure to Produce Documents.
These documents shall support Marilyn Gerber's objections and demand for
surcharge against PNC Bank.
67. Auditor William Duncan, refused Marilyn Gerber from issuing supoenas
to Carol Yon and Denise Sullenberger who were involved in the management and
decisions of the Mildred J. Gerber Estate and Trusts. Denise Sullenberger was the
actual individual who kept the records, bills, and did the bulk of the administrative
work while David Brown was her supervisor. Carol Yon was ultimately responsible
for making the decisions for the Estate and Trust especially when issues with
Frederick E. Gerber,1I , Jane Heflin and my complaints became more vocal and I
took them to the corporate headquarters in Pittsburgh. William Duncan refused me
the right to issue supoenas to the investment officers of which there were several
and were ultimately listed on the annual report that was submitted to this Court but that
this Petitioner has yet to see and was not given when she requested all documents.
68. Auditor Duncan refused to allow me to issue supoenas to Millie Scott,
and a Real Estate agent who witnessed the property of Mildred J. Gerber and who
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could have supported the deliberate errors that PNC Bank made in assessing the
tangible personal property and the personal property of Marilyn Gerber. These
depositions or witnesses would have forced PNC Bank to reassess the value and
the inventory of Mildred J. Gerber's estate.
69. Auditor Duncan refused Marilyn Gerber the right to supoena the
accountant of Gilliand who prepared all of the Federal and State Income tax
Files as well as provided tax information to PNC Bank. Subsequently, Marilyn Gerber
only received partial documents from PNC Bank on the Federal and State tax
reports and correspondence.
70. Auditor Duncan refused to pursue during the August 3,2004 hearing
that was ordered by Judge Oler to investigate the six months that Frederick E.
Gerber,1I claimed that he was not available for deposition and production of
documents for the PNC Accountings due to relief from the Soldiers and Sailors
Relief Act. Frederick E. Gerber, II was actually in the US since December 2003 and
lied about his assignment in Iraq. The US Army subsequently has stated that upon
receipt of a Judge's order that they would provide the evidence to support this
Petitioner's claim that Frederick E. Gerber,1I deliberately avoided discovery and
enriched himself financially during this time. Auditor Duncan stated that I could
pursue further actions with this Court and refused to address these issues.
71. Auditor failed to make the Court documents available to Marilyn Gerber
despite numerous requests over the past two years, until January 20,2005 which
resulted in the fact that Marilyn Gerber could not access them herself until February
4,2005 and on that day had to call over to the Auditor's office and inform him that
if
there were three boxes of documents missing. This required a two hour wait and
ultimately Marilyn Gerber found documents which were never given to her by PNC
Bank, as well as documents which Frederick E. Gerber, II never produced to her
but that were produced to this Court. On Friday, February 4,2005, the Orphans'
Court staff could not produce the annual reports as filed by PNC Bank for the Estate
and the Trust due to computer errors. Marilyn Gerber had to go through four years
of documents in only 4 hours in an attempt to assure that she had all of the documents.
The computer system was down for which to retrieve the annual reports and as of
February 8,2005, the Orphans' Court could not retrieve them from the computer as
they have stated that all of the documents have been scanned. The reality is that it can
take up to three hours of searching to try and locate one single document.
72. Auditor Duncan refused to allow Marilyn Gerber to depose George
for the purpose of establishing that there was indeed tangible personal property of
Mildred J. Gerber and Marilyn Gerber when he was asked to do an appraisal of
623 Hilltop Drive, New Cumberland, PA after PNC Bank had claimed that all of the
tangible personal property of Mildred J. Gerber had been packed and put in storage
at Harrisburg Storage Company. The reality is that PNC Bank produced a document
that will prove that George Clouser had to have seen the tangible property left in
the home after October 1,2002 and upon deposition he would have been able to
speak to this. The same is true of Mark Heckman, the second appraiser hired by
PNC Bank and who was also refused by the Auditor per Marilyn Gerber's request to
depose him.
7~. Thj $wmmatiQn Qf aU tfijji djriilkl reqlleitj fQf J;lijKlu~tiori gf g~wm,ritj
and
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depositions resulted in that Marilyn Gerber was not able to refute PNC Bank's
deposition of David Brown that there was indeed property of Mildred J. Gerber that
was left in the residence of 623 Hilltop Drive, New Cumberland, PA and that PNC
Bank did indeed lie and ultimately distribute this tangible property to Frederick E.
Gerber, II and Jane Heflin prior to receiving approval by this Court to distribute this
personal property to the Executor. Marilyn Gerber's personal property remains to
this day an issue as well as where it is. The same is true that the deposition of Millie
Scott would have substantiated Marilyn Gerber's statement that there was significant
personal property of Marilyn Gerber within the home of Mildred J. Gerber at 623
Hilltop Drive, New Cumberland, PA and that PNC Bank deliberately lied and refused
Marilyn Gerber access to retrieve her property as well as they assessed her personal
property as Mildred J. Gerber's thereby receiving fees from the inventory that they
created of Mildred J. Gerber's tangible personal property.
74.Secondly, the refusal to depose key financial individuals as the CPA accountant
Dan Gilliand and other key PNC employees would have supported Marilyn Gerber's
objections that PNC Bank mismanaged Mildred J. Gerber's estate as well as her
Trust thereby supporting her objections that PNC Bank should be surcharged.
75. The Auditor also refused Marilyn Gerber from deposing Jane Heflin who
contributed to excessive legal fees due to her having possession of Mildred J.
Gerber's automobile without authorization, with expired plates and expired
inspections. PNC Bank had to threaten to repossess this car if Jane Heflin did not
comply and purchase this car and they even extended a loan to her at a discounted
rate. Marilyn Gerber feels that PNC Bank should be surcharged for the delays in
70
handling this matter and not bringing it to the attention of the Court and having them
deal with this flagrant disregard for instructions at the very beginning instead of
allowing months to go by prior to resolving this issue.
E. Mlssina documents from PNC Bank:
76. PNC Bank NEVER provided certain documents despite that they stated
repeatedly during several status conferences and during the hearings that they had
provided ALL documents in their possession. The reality is that PNC Bank DID NOT
provide copies of all of their annual reports for the Estate and Trust of Mildred J.
Gerber. PNC Bank also did not provide PNC Bank's true and entire policies and
procedures for Estate and Trust management as the document which PNC Bank
did provide to me eventually and which was submitted as Exhibit 0 2 on September
28,2004 has no resemblance to policies and procedures for the management of
a Guardian of Estate of an Incapacitated Person. PNC failed to provide the
correspondence and trading information from the investment officers for the
PNC investment products which ultimately resulted in losses.
77. Frederick E. Gerber,1I NEVER produced documentation and
correspondence as was requested and supoened by Marilyn Gerber which would
show the conspiracy to defraud Marilyn Gerber from her beneficiary rights as well
as refute PNC's testimony of their compliance and actions which they failed to take
against Frederick E. Gerber,11. It is believed that PNC Bank and Frederick E. Gerber,
II are intimately involved in conspiring against Marilyn Gerber which ultimately affected
the management of the assets of Mildred J. Gerber and the care of Mildred J. Gerber
that they cannot afford to disclose the "truth" at this point as they risk Frederick E.
7(
Gerber,1I implicating PNC Bank and ultimately himself. Jane Heflin is also believed
to be involved in this conspiracy as the documents that PNC Bank provided indicate
and support Marilyn Gerber's allegations, objection to the Accounting and her
request for surcharge of PNC Bank. PNC began corresponding and meeting with
Frederick E. Gerber,1I in early December 20001, two months prior to PNC writing
their February 12,2001 letter to Mr. Rupp where David Brown of PNC outlines his
thoughts and strategy of preventing Marilyn Gerber from receiving any moneys from
the two Trusts and PNC's desire to take over the management of the two Trusts.
78. PNC Bank failed to provide the "15 pounds of mail" which David Brown
in his testimony on September 28,2004 on page 98 -101 stated that Marilyn Gerber
presented to him in April 2002. Where is this mail and why didn't they provide it
in the discovery and production of documents. Marilyn Gerber requests that all
legal fees associated with this mail fiasco due to PNC's lack of managing the
mail and the forwarding of Mildred's mail be returned to the Estate.
79. PNC Bank failed to provide the letter from Mr. & Mrs. Timothy Losh
dated December 15,2002 in which they decline their offer to buy the property
of Mildred J. Gerber at 623 Hilltop Drive, New Cumberland. Mr. Duncan ultimately
allowed Marilyn Gerber to provide a copy of this documents by December 1,2004
which she did after along and arduous search. It is believed that PNC Bank has
more documents related to the Lashes as they continued to be involved in trying to
sell this home despite that Marilyn Gerber indicated that Fred E. Gerber,Sr. had
provided for her to purchase this property by his verbal consent and direction on
January 16,1998. Marilyn Gerber provided evidence to this on December 16,2002
SZ
before Judge Hoffer however Judge Hoffer refused Marilyn Gerber due process and
ultimately denied her stay of the sale of this home and ordered this property to be sold.
PNC Bank immediately continued to contact and try and force the Lashes to buy this
property despite that they has declined to purchase this property and Marilyn Gerber
stated on December 16,2002 that she would purchase it before Judge Hoffer. PNC
Bank incurred on going legal fees with AJ Mendelsohn from Rhoads & Sinon
in their attempt to get the Loshs's to purchase this property and continued to
submit a motion for the advance distribution of this property to the Executor in an
attempt to prevent Marilyn Gerber from purchasing this property. This property was
ultimately sold despite a motion to stay the sale of this property was submitted in
November 2003 and this Court did not hear this motion and it was sold on or about
February 12,2004 despite that Frederick E. Gerber,lI stated that he was not available
despite the Soldiers and Sailors Relief Act. Frederick E. Gerber,lI was indeed in this
country and in this state during this time. Marilyn Gerber suggests that all of the legal
fees from Rhoads & Sinon be surcharged and returned back to the Estate and lor
Trust from December 15,2002 until the last billing statement regarding the sale of
this property was no longer posted. PNC Bank spent more money in an acrimonious
battle to prevent Marilyn Gerber from purchasing this property than if they had allowed
her to purchase this property per her father's wishes and stipulations on January 16,
1998. This issue shall also be brought up again at the upcoming hearings in July
2005 of the Frederick E. Gerber,lI Accountings and future motions of the Estate of
Fred E. Gerber,Sr. and Mildred J. Gerber's Estate which Marilyn Gerber shall file
shortly as was discussed in the December 7,2004 status conference with Auditor
'51
Duncan. Marilyn Gerber requests that ALL legal fees associated with the sale of
the home be returned to the Estate and PNC surcharged.
F. Flndlnqs of Fact by Marilyn Gerber:
80. The witnesses presented at the hearing were David A. Brown, Vice
President and Trust Officer for PNC ("Mr. Brown"), Joanne Book Christine (Ms.
Christine") and attorney at Rhoads & Sinon LLP which served as counsel for PNC,
Frederick E. Gerber,1I and Marilyn Gerber.
81. David Brown testified in the hearing that he had encountered difficulties
and interference from Frederick E. Gerber, II in the administration of the Guardianship
Estate and Trust. Mr. Brown however could not provide an explanation as to why he
did not approach this Court and ask for relief and an order for Frederick E. Gerber, II
to comply with the PNC's request to cease writing checks on the checking account of
Mildred J. Gerber between the period of March 23,2001 and October 20,2003. PNC
could also not adequately explain why they had to incur overcharge fees when they
could have sought a quick emergency relief action from this Court and order
Frederick E. Gerber,1I to cease writing checks from the Estate and the Trust when
PNC took over the Trust in October 2001. PNC had already had experience with
overcharge fees due to Frederick E. Gerber, II's writing checking from Mildred J.
Gerber's checking account, they should have known that Frederick E. Gerber,1I
would continue his pattern of writing checks with the Trust Account. PNC Bank
failed to ask this Court for assistance which would have been less costly than
incurring enormous legal fees from Rhoads & Sinon due to Frederick E. Gerber,II's
and Richard RUpp's failure to comply. The documents that PNC Bank supplied to
7t
Marilyn Gerber are replete with memos and correspondence regarding Frederick E.
Gerber's failure to comply with their requests. This holds true for receiving income
tax information from Dan Gilliand and Associates and the Accounting from
Frederick E. Gerber,1I and PNC Bank waited until June 2002 to approach this Court
demanding an order for Accounting. The long tolerance and wait only proves
Marilyn Gerber's belief that PNC Bank and Frederick E. Gerber,1I conspired
initially in the beginning when Frederick E. Gerber,1I filed for Guardianship of Estate
in this Court on February 1,2001. PNC Bank did not want to risk incurring problems
with Frederick E. Gerber,1I especially since they had consulted with him as early as
November 2000 and assisted him in planning a strategy for taking control of the
Estate and then ultimately the Trust. See the testimony of Marilyn Gerber where she
reads the letter dated, February 12,2001 from Dave Brown to Frederick E. Gerber,1I
on page 361 of the September 29,2004 hearing. Please see my testimony on page
360-362. Please also see Mr. Brown's testimony during his deposition on May 20,
2004 pages 5-24.
82. Mr. Brown testified that he had over 20 years experience as a trust and
guardianship administrator upon the cross examination by Heather Kelly, litigate
for Rhoads & Sinon yet upon the cross examination by Marilyn Gerber, Mr. Brown
admitted that he had been only been an Certified Financial Planner since 2002,
(page 40 of his testimony during the hearing on September 28,2004) yet in his
testimony during his deposition, Mr. Brown stated that he was a financial planner
since 1999. Mr. Brown testified during his deposition on May 20,2004 that he
had managed the Trusts or Estates of only 15 to 20 clients with Dementia over the
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past 15 to 20 years or 3 clients with Dementia or Alzheimer's 3 and 1/years. (See
page 55-57 of his deposition of May 20,2004.
83. Mr. Brown testified that the fees charged by PNC for the administration
of the Guardianship Estate and Trust were according to PNC's standard schedule
of fees and based on the value of the assets under management. (Exhibit 0-1 ,Tr.
54-55,61-63) BUT what Mr. Brown would not say and did not testify to was that he
at no point ever explained to anyone especially Frederick E. Gerber,1I or Richard
Rupp,Esquire, attorney for Frederick E. Gerber,1I how these fees could expand and
grow and he Mr. Brown NEVER testified that he informed Frederick E. Gerber,1I or
any beneficiary of the extraordinary legal fees that could be incurred if they did not
receive any cooperation. Of all the 4,000 documents that PNC Bank provided to
Marilyn Gerber, there is NEVER ONCE a letter to anyone, any beneficiary, to any
attorney of their concern for the extraordinary fees and what they could do to avoid
these consistent and persistent legal fees with Rhoads & Sinon. PNC Bank never
considered going to this Court and seeking assistance like a motion to compel
Frederick E. G Gerber,lI to comply with financial requests for information or a Motion to
remove him as Executor and all Trusteeships especially upon receiving the
Accounting from Frederick E. Gerber,1I upon this Court's order.
84. Mr. Brown testified that he immediately following PNC's appointment
as Guardian of Estate obtained appraisals of Mildred J. Gerber's tangible personal
property and real estate. (PNC -1 Tr.. 64) but what Mr. Brown does not say and
DID NOT DO was to correspond with all of the beneficiaries and inquire if any of
the beneficiaries which was essentially the three children of Mildred J. Gerber and
3f
ASK them if they had any property in the family home. It would not have been
unlikely for children to have childhood, high school, college and bedroom property
in the family home. Marilyn Gerber did indeed inform David Brown in a meeting with
him, Carol Yon and Denise Sullenberger in April 2001 just after the appointment of
PNC as Guardian of Estate and inform them that a large majority of the furniture and
Marilyn's life personal childhood,high school and college personal property as well
as many items in the basement were her property. Marilyn Gerber informed David
Brown that she had bedroom furniture as well as her siblings had personal
property in the family home. Marilyn Gerber also informed David Brown that she
was aware that her siblings had taken considerable personal property of Mildred
Gerber as well as there were many financial issues as unpaid taxes for 1999,2000,
flood in the basement damage claims that needed to be filled out, a car insurance
claim for an accident, and that she had considerable concern for the whereabouts
of Mildred J. Gerber's investments, assets for the Estate and the Mildred J. Gerber
Trust and Fred E. Gerber,Sr. Trust. The RESULT of this meeting was that PNC Bank
despite Marilyn Gerber's insistence that she be allowed to go into the family home
and identify her personal property along with a third party witness from PNC Bank
was refused this opportunity. She informed them that she would not list all of her
personal property for fear that it would be given to Frederick E. Gerber,lI and PNC
Bank would not have any responsibility to protect her personal property. PNC
Bank was indeed informed in May 2001 that she discovered some of her personal
property and a large suitcase of hers with personal property sitting on the curb side
outside of her mother's home. Marilyn called,left a message and wrote to PNC Bank
"11-
instructing them to inform Frederick E. Gerber,1I that he did not have authority to
thrown out any tangible property of Mildred J. Gerber or of anyfftlffg in the home that
was inventoried. PNC Bank never wrote Frederick E. Gerber,lI but instead wrote and
threatened Marilyn Gerber with legal action or arrest if she would enter onto the
property of Mildred J. Gerber. The result is that during the deposition of Dusty
Chapman on July 14,2004, by PNC Bank with Marilyn Gerber present, Dusty
Chapman testified that he indeed saw and was informed that there was personal
property and boxes of Marilyn Gerber present in the home of Mildred J. Gerber and
was instructed not to assess it or inspect it. (See page 64 of Chapman's depo).
Dusty Chapman goes further to state that he never inspected the closet of
Mildred J. Gerber's bedroom where Marilyn Gerber had informed Dave Brown there
would be a large box of silver items in this closet. Dusty Chapman also stated that
he found it odd that there was no crystal sets, no china sets, no silver coffee sets,
in the home. He also stated that he did not go through all of Mildred Gerber's
chest of drawers looking for jewelry. He also testified that he had not seen several
pieces of jewelry that Marilyn Gerber describe to him along with other items of
china. (See pages 63-129 where Mr. Chapman admits that he did not itemize all
items in the house and he did have some concerns about items that should have
been in a wealthy home of a military officer and his wife. Mr. Chapman also testified
that he has done appraisals for PNC Bank for over 15 years and they represent over
40% if business. It is clear that Mr. Chapman ONLY did exactly what PNC Bank
wanted him to appraise and nothing more especially NOT TO LOOK for missing
items as PNC Bank took NO STEPS to instruct Frederick E. Gerber,lI and Jane
.?J
Reflin that they were not to removed any items from their mother's home. PNC
Bank did not perform the appraisal until June 2001 leaving approximately two
months for Fred and Jane to remove personal property which is what Marilyn Gerber
alleges happened. Please see the Exhibit of photographs submitted by Marilyn
Gerber marked, "Photos of what PNC Bank left in the home" .
85. Mr. Brown testified that there was a tangible personal property item
which was an automobile which was taken out of state without PNC's permission
or knowledge in January 2002. It was Marilyn Gerber who informed PNC Bank while
she was traveling each week to Chicago starting in April 2002 that this car was not
inspected, had expired plates and inquired as to what the insurance company was
that was carrying the insurance on this car, much less who was the driver. PNC Bank
delayed, never dialogued with Marilyn Gerber despite her interest in securing the
car for her mother or purchasing the car for herself as she had a very old used car.
Marilyn Gerber went to the DMV in Harrisburg and purchased a copy of the title
and a form for inspection. PNC Bank was informed of her willingness to assist much
less that she informed them that she had been listed as a designated driver with
USAA by her father in 199611997. PNC Bank was informed that Jane Heflin had
taken her father's burgundy Ford station wagon when he died in 1998 and left
Marilyn Gerber without a car. PNC Bank despite Jane Heflin's dragging her feet and
ignoring their request until PNC Bank threatened to repossess the car offered this
car with a substantial loan and decreased interest rate. PNC Bank NEVER returned
Marilyn Gerber's letter. Jane Heflin cost the Estate over $3,000 of legal fees with
Rhoads & Sinon. PNC Bank could have had a Court order signed for much less
?1
and had the car issue settled.
86. Mr. Brown also testified that upon its appointment as Guardian, PNC
made immediate attempts to collect Mildred J. Gerber's financial assets and
encountered "some" difficulties transferring the bank accounts due to two main
factors: first, automatic payments and pension deposits that were attached to the
accounts had to be discontinued and second, the fact that Frederick E. Gerber,1I
continued to write checks form Mildred J. Gerber's bank accounts following PNC
Bank's appointment as Guardian, despite PNC's repeated instructions to him to
stop writing checks. (Tr.68-75). The reality is that Marilyn Gerber testified on
September 29,2004 during this hearing that PNC Bank actually met with Richard
Rupp,Esquire and informed him what was required of Frederick E. Gerber,1I as well
as informed Fred directly that he needed to stop writing checks. PNC Bank was still
conspiring with Fred at this point in March/April 2001 not believing Marilyn Gerber
and her concerns that she shared with PNC Bank in her April 2001 meeting with
Mr. Brown and senior staff members. Fred wrote over $3,000 checks without
PNC Bank's permission and yet PNC Bank did not approach this Court with there
concerns. Later Fred wrote additional checks despite PNC Bank's warnings, by
writing Trust checks for his own enrichment from the the Mildred J. Gerber Trust.
PNC Bank incurred insufficient funds which they never overturned considering that
this problem was theirs in not changing the accounts immediately and informing
Fred that he would be liable for any insufficient fund charges. Instead PNC Bank
charged the Gerber estate. PNC Bank never takes accountability in dealing with
their absolute knowledge that there was a real problem with Fred's Accounting and
16
his refusal to stop taking moneys from the Mildred J. Gerber Trust, the Fred E.
Gerber, Sr. Trust but that he WAS NOT Available due to his 18 hour days, 24f7
per his memos to PNC Bank. PNC Bank NEVER addressed this with the Court and
NEVER shared the serious financial consequences it could and have on the
Estate and Trust and for Mildred J. Gerber and the beneficiaries. Instead they
turned their heads and became hostile with Marilyn Gerber knowing that she would
not let this issue go away. Mr. Brown actually threatened to sue her if she would
make their incompetence public in July 2002. PNC Bank ultimately had to file
motions in June 2002 demanding Accounting from the Mildred and Fred Gerber
Trusts which this Court ordered and for which we will not hear until July 2005. PNC
Bank will be supoened and deposed along with Charles Schwab and other financial
institutions. PNC Bank could have filed for this Accounting in early 2001 and
saved the two Trusts from being "raided" by Fred for his own enrichment and for
the excessively large attorney fees he paid to Richard Rupp and attorneys in
Chicago. PNC Bank could also have gone into Court and taken the Fred E. Gerber,
Sr. Trust which they have never explained why they did not assume this Trust
despite their interest in doing so in a memo to Fred on Feb. 12,2001 even before
the Guardianship of Estate hearings before Judge Bayley.
87. PNC Bank waited until the end of 2001 to instruct Frederick E. Gerber,1I
to stop writing checks from the Trust Account at Charles Schwab. PNC Bank never
questioned or asked for these moneys to be returned nor did they verify the
purpose that these moneys were taken. PNC Bank never went to this Court after
Fred refused to stop writing checks in early 2001 from Mildred's checking account.
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PNC Bank continued to allow a pattern to continue without taking legal action.
88. PNC Bank waited for thirteen months prior to filing a Motion in Court
to demand Accounting from Frederick E. Gerber,11. During those thirteen months
Fred appropriated moneys from the two Trusts of Fred and Mildred Gerber which
have resulted in an audit of this Court ordered Accounting and the hearings in
July 2005. Had PNC Bank gone immediately to this Court and requested an
Accounting, they would have prevented excessive legal fees but would have been
successful in probably removing Fred as Trustee of the Fred E. Gerber, Sr. Trust
and as Executor for incompetence and failure to generate income for the Trusts
prior to PNC Bank taking over the Mildred J. Gerber Trust. Marilyn Gerber requests
that all legal fees for the filing and objections to Fred's Accounting be returned to
the Trust.
89. Rhoads & Sinon argued in their brief that David Brown testified that
in April 2002, Marilyn Gerber provided PNC with 15 pounds of mail that had been
accumulated (Tr. p.98). However PNC Bank failed to provide any evidence that
Marilyn Gerber did indeed given David Brown 15 pounds of mail,nor did he provide
copies of these 15 pounds of mail when Marilyn requested production of documents.
Marilyn Gerber requests that all fees associated with this mail be returned to the
Trust. The reality is that PNC did not pick up the mail regularly from Mildred J. Gerber
when she lived in New Cumberland, when Mildred was taken to Chicago, PNC Bank
opened a PO box in Mildred Gerber's name but they encountered difficulties with
getting this mail and there is a letter of correspondence to Richard Rupp from PNC
Bank asking permission to retrieve her mail that was produced by PNC Bank in the
1"2-
document request. Marilyn Gerber also testified that she discovered that Fred had
asked the Smore's of New Cumberland to pick up the mail for a period of three months
and that she discovered checks from the Pennsylvania Department of Revenue with
a refund check, and other important mail which she did indeed give to David Brown
in the Spring of 2002 along with Stan Laskowski present at a meeting with AJ
Mendelsohn of Rhoads & Sinon, David Brown, Stan Laskowski and Marilyn Gerber.
PNC Bank could not explain why they were "missing mail for the first three months
of 2002". David Brown lied about Marilyn Gerber essentially "stealing mail" and
this continues to prove the deliberate hostile and acrimonious relationship that
PNC Bank had with Marilyn Gerber.
90. Mr. Brown testified that the legal services were not excessive from
Rhoads & Sinon and that the hourly rate was approximately $170 per hour and that
PNC Bank regularly reviewed their fees. (Tr.p.125-127,203). The reality of this
erroneous testimony by David Brown is that the bills from Rhoads & Sinon NEVER
indicated at what rate the billable hours were billed at, the billable hours were
never separated from the Estate and the Trust and it is inconceivable that PNC Bank
found legal fees in excess of $80,000 as reasonable in lieu of the estate planning
and wishes of Mildred J. Gerber, and her beneficiaries. PNC Bank NEVER once
alerted the beneficiaries of the mounting legal fees but instead gave Rhoads &
Sinon FREE approval to spend, spend, spend. PNC Bank was charged with income
producing responsibilities as Guardian of Estate and the Trustee and they failed
to curb these expenses but instead used Rhoads & Sinon as a DEFENSE for their
knowing and growing mismanagement of the Gerber estate and Trust.
f}
91. Ms. Christine testified that Rhoads & Sinon gave PNC Bank a reduced
rate for billable hours when there were two attorneys involved as in depositions and
hearings. Rhoads & Sinon showed up at hearings when they had been substituted
out of any responsibility, they attended hearings and depositions when they were not
a party to the action. Ms. Christine could not indicate on any of the Rhoads & Sinon
legal bills where there was a reduction in billable hourlfees or that a discount was
given. See her testimony (Tr. p. 199-200). Marilyn Gerber asks that Rhoads &
Sinon bills be reviewed and explained in detail and with accuracy indicating where
reduced rates and discounts were provided as well as paralegal rates were charged.
Marilyn Gerber wants to know if indeed their paralegal receives the actual $90 per
hour or are their additional padded administrative corporate fees included in this
rate?
92. Other charges that Marilyn Gerber objected to were the excessive
fees for lawn service which PNC Bank ultimately had problems with when they
discovered that services such as snow removal was not performed; and excessive
heating bills with UGI. Correspondence from PNC Bank's production of documents
indicates that Denise Sullenberger kept the heat on the empty property at 623
Hilltop Drive, New Cumberland at 69 degrees when it should have been set at
55 degrees thereby avoiding heating unnecessarily an empty house. Marilyn Gerber
Eifteri feung tfii pmpii'ty witli t1ii baiiiiiirit Iigliti on fi;jr weelSi at a time. Maiilyri
Gerber
also questioned the payment to Warren and Sanders for appearances each time that
Marilyn Gerber visited her mother when this Court NEVER ordered supervised visits
and Frederick E. Gerber,1I was ultimately found GUILTY of CIVIL CONTEMPT of Court
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in May 2003. PNC Bank would like to have this Court believe that all they were
responsible for was the payment of bills as if they had not say in the amount of bills,
they type of expenses incurred for Mildred J. Gerber and how and why they were
incurred. PNC Bank showed no interest in the expenses of their ward and ultimately
turned their back on Mildred J. Gerber and her assets of her Estate and Trust and
paid ANY amount of moneys to Jane Heflin, Frederick E. Gerber,lI, Sunrise of Glen
Ellyn, Warren & Sanders, Josie Grospe who cared for Mildred as a non skilled
caretaker in the home of Jane Gerber while she was also paying paid to care for
Mildred Gerber. PNC Bank NEVER audited, visited Mildred Gerber to see if she was
receiving comparable services in Chicago compared to her living in her home in
New Cumberland. Remember, David Brown testified that he was "Shocked" when
he learned that Mildred J. Gerber was taken to Chicago YET PNC Bank made no
effort to approach this Court as bills mounted, fees were paid from the Fred E.
Gerber,Sr. Trust and PNC Bank also never provided any moneys to Mildred J Gerber
directly while she lived in her home in New Cumberland in 2001. PNC Bank has
never fully accounted for the heating and electrical bills, nor the extraordinary
fees for the care of Mildred J. Gerber. The documents that they produced to Marilyn
Gerber OFTEN show gross amounts paid to Sunrise, Jane Heflin without hours
of care noted, Warren & Sanders and especially the extraordinary legal fees that
Frederick E. Gerber,1I incurre~, $25,000 to Chicago attorneys to prevent Marilyn
Gerber from seeing her mother during the last month of her lite. PNC Bank NEVER
investigated that Frederick E. Gerber,1I was using the Fred E. Gerber, Sr. Trust to
pay for expenses that he wanted to pay for and did not want PNC Bank to know
~r-
of his activities. Again, PNC Bank NEVER fully managed Frederick E. Gerber,1I and
lost control of managing the Estate and the Trust as they had no experience in
the daily and monthly management of an incapacitated Alzheimer individual. PNC
Bank had the power to go into Court along with Marilyn Gerber and ask Judge
Bayley to review what was happening with the expenses for the care of Mildred J.
Gerber and her declining status. PNC Bank instead turned their back especially
as they had conspired to assist Fred in acquiring Guardian of Estate initially in his
petition of Feb. 1,2001 and ultimately offered him strategy in obtaining Guardian of
Person in December 2002. It is Marilyn Gerber's belief that PNC Bank thought that
they had a "Cash Cow" with Frederick E. Gerber,1I and could ultimately manage and
generate fees on two Trusts, one Estate in addition to all of the assets and investments
from the Two Trusts and estate and the rental income from the Baltimore property.
Ultimately, PNC Bank was duped by Frederick E. Gerber,1I who essentially scammed
PNC Bank and enriched himself as the upcoming hearings shall prove in July 2005.
93. Mr. Brown tried to testify and make light of the $9,000 lost of investments
and stated that they actually made earned income of $15,700 but he never showed
or proved this during the hearing or on their line accounting or with documents.
PNC Bank indicated that there was a gain of $17,000 in the value of the house but
this was purely by accident as Cumberland made a large reassessment of property
values during their tenure as Guardian of Estate. What PNC Bank actually did was
to seize the assets of Charles Schwab, have to pay off $88,000 in margin interest and
then took the already paid commissions from the Charles Schwab investments and
repurchase and reinvest them in their institutional investment products which is
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essentially double dipping. UNTil, Marilyn Gerber DEPOSES Charles Schwab in
the upcoming July 2005 hearings, Marilyn Gerber shall not be able to prove this as
she does not have all of the documentation nor has she been allowed to depose
and receive documents from the investment officers from PNC Bank. However,
Marilyn Gerber can state that the OCC and SEC shall have difficulties with PNC
Bank's activities and there are currently legal suits in Pennsylvania against PNC
Bank for these actions as well as their are Federal laws which do not allow what
PNC Bank did by taking these Charles Schwab assets and reinvesting them and
also charging for fees and administrative costs. There were no laws that stated that
PNC Bank had to liquidate the Charles Schwab assets. PNC Bank was just
greedy. PNC Bank violated the Federal Prudent Investor law and other case law
shall be cited in further sections of this brief. Marilyn Gerber desires that the $9,000
losses and the fees that PNC Bank collected from trades and investments be returned
to the Estate and Trust.
94. Mr. Brown testified that all of the tangible personal property of Mildred
J. Gerber was inventories and placed in storage with Harrisburg Storage. What
PNC Bank failed to acknowledge was that they knew that there was personal
property of Marilyn Gerber's due to Dusty Chapman's testimony during his
deposition. PNC Bank made no attempt to contact Marilyn Gerber and afford her
the opportunity to retrieve her property but it is Marilyn Gerber's belief that Fred and
Jane did indeed retrieve property and that PNC Bank left lawn equipment and
tangible personal property of Mildred J. Gerber that Jane Heflin wanted as Mildred
J. Gerber's clothes, a box of crystal that was marked for Jane. PNC Bank however
!9-
did not contact and inform her that there was a box of crystal with her name"Mert"on
it which is her nickname and offer her the opportunity to pick up her property. PNC
Bank did not go into Court and get an order for the Advance Distribution of Property
prior to storing all of Mildred J. Gerber's tangible property knowing that she would
not return to her home and that she was in declining in health with only a few months
to live. Had PNC Bank done this, and the Court had granted that every item in the
home was accounted for and all three children were witnesses to what was their
property or to what they wanted, the storage of property would have been avoided
and costs of over $350.00 per month which has been paid by the Estate since
October 2002 would have been avoided. Now the reality is that each and every
item shall have to be unwrapped, identified, itemized and compared against the
inventory done by Dusty Chapman and then and only then will Marilyn Gerber be
able to prove that items were removed from between March 2001 and June 2001
prior to PNC Bank completing their inventory and what actually does exist in storage.
There is also the matter that Fred accused Marilyn of stealing items from the
home in his original Feb. 1,2001 petition for emergency guardianship which are
actually in storage and were witnessed by Marilyn Gerber on October 1,2002 when
she witnessed the tangible personal property being packed by Harrisburg Storage.
There is also a huge problem in that the manifest inventory written out by Harrisburg
Storage is not legible and does not describe each and every item. There is also the
question if this property is insured for replacement value or at appraisal value and
'if so, who assessed the replacement value. PNC Bank provided documents which
indicated that Jane Helfin conspired with PNC Bank for a day that Marilyn would
'r1
be in Chicago visiting her mother in order to move the property out of Mildred's home.
PNC Bank knew that they had a huge problem that is was entirely possible that a
large majority of the property in Mildred's home was indeed Marilyn Gerber's and if
she did indeed prove this, then PNC Bank would not only be liable legally, but they
would have to reassess the inventory costs and fees that they charged the estate.
This matter is pending before Judge Oler shortly this month of February 2005.
Marilyn Gerber asked only of PNC Bank that she be allowed to witness the personal
property of the contents of Mildred's home. PNC Bank consistently refused yet they
allowed Fred and Jane to enter her home and essentially take anything they wanted
as verified by a documents of PNC Bank in which Denise Sullenberger notes there
were items removed from property in 2002 and Frederick E. Gerber,1I had thrown
out $700 of "trash" which Marilyn Gerber shall prove was her property stored in
the basement of Mildred's home where Marilyn had lived and moved in 1996.
Marilyn Gerber requests that all storage fees be surcharged and returned to the
Estate of Mildred J. Gerber pending the upcoming resolution of this property before
Judge Oler.
95. Mr. Brown testified that the administration of the Trust was difficult due
to the interference and harassment caused by Marilyn Gerber YET PNC Bank could
not produce any financial figures or actions that cost the Estate or any witnesses who
testified that Marilyn Gerber was harassing or interfered. IF PNC Bank is referring to
her motions which asked for her property, for a budget or for PNC Bank to monitor
and scrutinize the expenses by Frederick E. Gerber,1I and the Accounting then
I guess one could say that Marilyn interfered, THANK GOD!
<fr
96. Mr. Brown provided testimony for the $12,000 of extraordinary fees
yet he could not provide for an itemization of time, fees for this extraordinary time
or for what purpose. Mr. Brown provided no history of these fees or time spent.
Mr. Brown only estimated of several hours each week for 128 weeks but he provided
no documentation. PNC Bankis a Federal Bank and they MUST provide evidence
of checks and balances of accounting, moneys and how and why they charge their
clients. Mr. Brown estimated a conservative amount of $20,000 yet they only
charged the Gerber estate $12,000. I ask this Auditor, HAVE YOU EVER KNOWN A
BANK TO GIVE AWAY MONEY OR CREDI T $8,000 just for the heck of it or good
will?? I think not.
97. Mr. Brown also does not explain if he explained with great detail what
the extraordinary fee schedule to Frederick E. Gerber, II or to Mr. Rupp and there is
no evidence of a signature of their understanding the consequences of extraordinary
fees. There is also no documentation of letters of correspondence to any beneficiary
or the Mildred J. Gerber or her Guardian of Estate as extraordinary fees were
mounting. Why did PNC Bank wait 128 weeks to charge these fees and why did
they not take measures to curtail these extraordinary amounts of administration?
Marilyn Gerber requests that the $12,000 be surcharged and returned to the Estate
with the interest returned as well that is connected to this $12,000. Please remember
that PNC Bank also made a settlement offer to delete this charge if Marilyn Gerber
would drop her Objections. Later this settlement fee increased to $25,000!!! that
Marilyn Gerber refused as PNC Bank wanted as terms that they be released from
any current or future legal actions by Marilyn Gerber. It was not a hard decision to
5ZJ
turn down PNC Bank despite Marilyn Gerber's financial condition.
98. Mr. Brown testified that Frederick E. Gerber,lI and Jane Heflin served
as Agents under medical Power of Attorney and that Frederick E. Gerber,1I also
served a Financial Power of Attorney prior to PNC Bank being appointed the
Guardian of Estate. PNC Bank failed to testify that Marilyn Gerber was also a
financial Power of Attorney for Mildred J. Gerber and her long term caregiver and
a nurse with significant financial experience and background. PNC Bank once
caught with the nightmare of Frederick E. Gerber's raiding of the two Trusts and
their suspicion that he and Jane also had Mildred J. Gerber write them checks from
1998 to 2001 in addition to a suspicious $30,000 check that Frederick E. Gerber,1I
had wire transferred on March 22,2001 and PNC Bank did not stop this check
even though they were appointed Guardian of Estate on March 22,2001, PNC Bank
could not explain why they refused to listen to Marilyn Gerber's counsel that
things were greatly wrong with the Estate and Trust of Mildred J. Gerber. PNC Bank
has NO EXCUSE but that they conspired with Fred and Jane and chose the
wrong set of children but are now intricately involved with them and therefore
covering their tracks. PNC Bank also has the checking account canceled checks
from 1998 to 2001 as PNC Bank ordered them from Jennifer Conway of the PNC
New Cumberland Branch. This shall all be revealed in the July 2005 hearings.
99. Finally,PNC Bank argues in their brief that they had fiduciary power
over her medical care or living arrangements as the appointed Guardian of Estate.
Marilyn Gerber begs to inquire that if the Guardian of Estate does not decide all
fiduciary matters that involved costs and expenses, then WHO DOES. While,
Sf
Frederick E. Gerber,1I was indeed the Guardian of Person, HE HAD NO POWERS
to control the assets and investments of Mildred J. Gerber. PNC Bank was shocked
and concerned at her being taken from her home on December 23,2001 and leaving
an unsecured home for several months. PNC Bank became increasingly concerned
when the Court ordered Accounting was produced by Frederick E. Gerber. PNC
Bank had to be concerned when they were informed that Mildred J. Gerber was left
alone on November 4,2001 and she fell and sustained significant injuries all due to
Frederick E. Gerber,1I negligence. PNC Bank had to be concerned and "Shocked"
as Mr. Brown testified in his deposition and during the hearings that Mildred was
taken from her community, her friends, her Church and that Marilyn Gerber had to
obtain a Court order to visit her. PNC Bank had to be concerned when Marilyn
Gerber informed them about the car in Chicago, when Marilyn informed them that
Fred was throwing out tangible property,when Marilyn informed them of Mildred's
living conditions at Jane Heflin's home, and then at Sunrise. Jane Heflin had no
air conditioner for Mildred and had to purchase one as well as had PNC Bank pay
for her heating and a monthly stipend for caring for Mildred even though PNC Bank
was paying for 24 hour care of Mildred in Chicago. PNC Bank was informed by
Marilyn that Jane was often away working at her job in New York. PNC Bank was
informed by Marilyn that Fred almost never visited or supervised Mildred. PNC Bank
NEVER, NEVER made one trip to Chicago which would have entailed at best a
cheap flight on Southwest from BWI, a rental car, and a return within the same day or
at best, one overnight stay for under $100.00. Stan Laskowski informed AJ
Mendolsohn of their liability in not supervising the expenses and well being of
.~
57-..
their ward in May 2002. It is inconceivable that PNC Bank did not have grave
concerns and it is beyond imagination that they did not turn to this Court or at the
very least make a trip or two to Chicago to see their ward and PROTECT her financial
interests not to speak of her safety. There were red flags everywhere concerning
Fred and Jane and their enrichment of themselves and their children. The reality is
that Marilyn Gerber actually received very little, paid for her own legal expenses,
and went the extraordinary mile to protect and preserve the financial assets and
the welfare of her mother. In the end, Marilyn Gerber believes that PNC Bank
shall be found GUILTY of financial neglect and NOT REPORTING ELDER ABUSE
as ANYONE MAY REPORT ELDER ABUSE. PNC Bank NEVER ONCE made a
report to the Department of Aging, this Court or to any agency who could take
action to protect Mildred Gerber. PNC Bank turned their back as they were
intricately entwined and did not want to incur the state and possibly Federal
liability that they mismanaged and ultimately contributed to Mildred J. Gerber's
demise. PNC Bank had unlimited resources to PROTECT Mildred J. Gerber but
instead chose to embark on a course of excessive legal fees, an acrimonious
and hostile relationship with Marilyn Gerber and essentially ALLOWED Fred and
Jane to "rape the Estate and Trusts BLIND". Marilyn Gerber requests that PNC
Bank be surcharged to the maximum that the Auditor and this Court deems
appropriate. Marilyn Gerber shall also explore every other avenue to seek
restoration of the assets and fees for the Estate and Trust. PNC Bank also never
challenged the validity of the third amended Trust of 2001 nor of 1999 as they
were named as successor Trustee and they had their greedy interests at stake instead
5)
of tfle protection of an INCAPACITATED woman and mother of Marilyn Gerber.
99. PNC Bank failed to show where the monthly rental fees of $400.00
each month that Frederick E. Gerber has stated in his deposition on September
27,2004 was given directly to Mildred J. Gerber and approximately 4 checks were
mailed and made out directly to David Brown. PNC Bank wrote Fred and instructed
him that these rental checks had to be made out to the Trust or the Estate of Mildred
J Gerber. PNC Bank has NEVER indicated in their Accounting why and where
moneys were deposited between March 2001 to October 20,2001. PNC Bank
has also not proved to which Estate or Trust the Baltimore Property belongs.
100. PNC Bank failed to provide all of the tax reports regarding the Estate
and the Trust of Mildred J Gerber. They testified that there was a late charge for
the late filing of year 2000 and it was not completed until 2002 and signed by
David Brown. Marilyn Gerber had also informed PNC Bank that 1999 state and
Federal Income taxes would be a problem and she provided tax information to
David Brown on April 2001. PNC Bank has failed to marshal all of the tax
reports, accounting from Daniel Gilliand, and has not provided to Marilyn Gerber
all of the tax reports as requested in her request for production of documents.
G. CONFLICTS WITH OTHER HEARINGS/OVERLAPPING DISCOVERY:
101. PNC Bank will be deposed along with Charles Schwab during the
discovery phase of the scheduled hearings of the Accounting for the Mildred J. Gerber
Trust and the Fred E. Gerber,Sr. Trust in July 2005. Marilyn Gerber has not
requested or scheduled all of her witnesses which shall include more individuals
Sf
from PNC Bank, Charles Schwab, Daniel Gilliand, the PNC Investment officers,
and other appropriate deponents that she has not disclosed at this time. There shall
also be Millie Scott, and a real estate agent who witnessed tangible property in the
home of Mildred J. Gerber in November 2001.
This in shared as there is overlapping hearings and testimony which shall
open up new discovery and information pertinent and critical to the Objections of
Marilyn Gerber and since PNC Bank has not been signed off as the Guardian of
Estate or as Trustee of the Mildred J. Gerber Trust, Marilyn Gerber begs to ask this
Auditor and the Court to reserve their decision until all the hearings are completed
for the overlapping Accounting of the two Trusts which affect the Estate and
Trusts that Mildred J. Gerber had an interest in.
H. Future Motions to be Flied by Marilvn Gerber:
102. Marilyn Gerber indicated to this Auditor that she will be filing two Motions
to request an Accounting from the Estate of Fred E. Gerber,Sr. and Mildred J. Gerber
in an attempt to marshal the assets that PNC Bank failed to marshal and to identify
the moneys that are available to her as a beneficiary of the Estate and the Trust.
103. Marilyn Gerber also intends to challenge the second and third amended
version of the Mildred J. Gerber Trust.
104. Marilyn Gerber also intends to file MO~~rS to retrieve her personal
property, answer Judge Oler's order to show caUl why the Tangible Personal
Property of Mildred J. Gerber should not be give"'o the Executor, Frederick E.
Gerber,1I and file several other motions in the upcoming week that shall protect
her beneficiary rights and inheritance. Marilyn Gerber asks that this Auditor wait
51"
uiitil these motions are heard as they shall impact the Accounting of PNC Bank
and the results of her Objections to the PNC Accounting. It is believed that PNC Bank
shall be surcharged significantly and shall to go back and restate and recompile
their fees and investments.
I. CONCLUSIONS OF LAW:
105. Marilyn Gerber informed Auditor Duncan on December 7,2004 that since
she was Pro Se that she would have to write this Brief in "natural language" and
that she asked this Auditor if he was charged with researching the case law to
support either sides arguments and Marilyn Gerber's Objections. Auditor Duncan
stated that he indeed would have to research case law but he could not guarantee
that he would find all case law as needed. With that in mind, Marilyn Gerber being
Pro Se has done the following research and suggests the following case law
citations for the Auditor to review. Since Marilyn Gerber is NOT an attorney she
shall not attempt to argue as an attorney but ONLY state the Cases and suggest
that they do indeed apply to her Objections.
106. Marilyn Gerber believes that based on her testimony, and the cross
examination of David Brown, Dusty Chapman and Frederick E. Gerber, II that
PNC Bank SHOULD be SURCHARGED for transactions reported in the Guardianship
Account and the Trust Accounts, and for its actions as Guardian and Trustee.
107. Marilyn Gerber has provided ample evidence and testimony along with
exhibits and the supporting 4,000 pages of documents produced by PNC Bank that
indeed there are unquestionable problems that occurred in the management,
administration and actions by PNC Bank. Marilyn Gerber also offered on December
)~
1,2004 a document which indicated that Mr. & Mrs. Timothy Losh signed on
December 15,2002, there intent to not purchase the property at 623 Hilltop Drive,
New Cumberland which AJ Mendelsohn and David Brown lied about during their
testimony before Judge Hoffer on December 16,2002. If the facts had been known
on December 16,2002, Marilyn Gerber would have purchased and been the owner
of this property as Judge Hoffer turned to her and asked her if she was prepared to
buy this property and Marilyn Gerber replied yes, today she could buy this
property and indeed Marilyn Gerber provided a document which Judge Hoffer did not
admit but was actually distributed to PNC Bank and to Frederick E. Gerber,1I and
to Richard Rupp, Esquire on December 16,2002 which supported that Fred E. Gerber
Sr. did indeed intent to give Marilyn Gerber property. Marilyn Gerber shall also
testify in upcoming hearings in this Court.
108. Marilyn Gerber in her testimony during the hearings established many
issues of question concerning investments, marshaling of assets, management of
the property, payment of fees to Jane and Fred, the mail, unprepared taxes, insufficient
funds, and all of the items argued in this brief that INDEED this Auditor shall no
other course of action but to reopen the hearing and allow for the completion of
testimony from David Brown,Charles Schwab, the PNC investment officers, Daniel
Gilliand, Jennifer Conway and other key documents which PNC Bank failed to provide
shall also be deposed in the upcoming hearings as well as requested to provide
documents which OVERLAP this Accounting as provided by PNC Bank. Marilyn
Gerber established that PNC Bank losses were due to breach of duty, and failure
to comply with OCC, SEC and Accounting and Investment standards as set forth by
5'1-
the Federal and State governmental agencies as well as the internal policies and
procedures of PNC Bank.
108. Surcharge is the failure to exercise common prudence, common skill,
and common caution in the performance of fiduciary duties. In re Estate of Dobson,
490 Pa. 476 A2d 138(1980); In re Estate of Campbell
Surcharge is awarded to compensate beneficiaries for loss occasioned by
a fiduciary's breach of one or more of the duties owed to them. Restatement
(Second) of Trusts, 204.
109. The standard in Pennsylvania where a fiduciary has a greater skill than
the common manor ordinary prudence, the fiduciary is required to exercise that
greater skill. Estate of Pew
110. Marilyn Gerber has met the burden of proving the unanswered
questions, the missing documents, the unfinished depositions, as well as
the actions of PNC as explained in her Objections and argument during her
testimony and her brief as well as the outstanding issues that exist currently.
Estate of Pew
111. Marilyn Gerber refutes and disagrees with PNC Bank paragraphs
number 71.,72,73,74, 75, 76, 77, 78, 7980,81, 82,and 83. and does not believe
that their conclusion of law supports their fiduciary opinions. Marilyn Gerber believes
instead that PNC Bank are negligent in their administration and fiduciary
management of the Estate and Trust of Mildred J. Gerber and conspired to defraud
Marilyn Gerber of her property and beneficiary rights.
112. Marilyn Gerber offers the following case law for this Auditor to
r
research and consider.
The following case law are listed:
1. The UNIFORM PRUDENT INVESTOR ACT revised standards for prudent trust
investment promulgated by the American Law Institute in its Restatement (Third)
of Trusts: Prudent Investor Rule (1992) and Marilyn offers the following Exhibit
as a tool for this Auditor's research and PNC's rebuttal.
2.
Sf
research and consider.
The following case law are listed:
1. The UNIFORM PRUDENT INVESTOR ACT revised standards for prudent trust
investment promulgated by the American Law Institute In its Restatement (Third)
of Trusts: Prudent Investor Rule (1992) and Marilyn offers the following Exhibit
as a tool for this Auditor's research and PNC's rebuttal.
2. The following case laws are from the Superior Court of Pennsylvania 2005,
PA Super 6; 2005 and the following citations are offered to support my position
of mismanagement and investmehts losses.
~~
3. The following cases support my argument on bad faith investing, negligence,
abuse by the Trustee, and gross negligence versus negligence by PNC Bank
~ '"-- I" IE:' 5i>'e>A ~bUIbllr>-7.J~F 17I&/W. SK(}1lp~
~ AJ.1. M'/fJUI1vF /vb, /Jt>t!t(j])Adtb3.
~ /;. (v;te. 13Sr""d1F of-Ohe;/()ld~lt0hJoy/lIf-~~) f\?tf. ~
j/f(J[ ~ M<f) . .
~ 7 L?t-)U-; 6S~j /1t.u;Sth7;~!lU fA. ~ 1 rrtclr l-cL&lf., / (" 78
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. . 1.1/1... ~I<.A.V resr;6/.AV If ~ I rev. I:3J ;/39, 1f13A--7.J...
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4. The following supports my case law regarding the INVENTORY:
The Pennsylvania Statue 20 Section 13.04 (5) Household goods: and
the appropriate case laws are listed in the footnote$" .
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f - (I / .~ r/tML~tdl~f/9--'
/.3_oJ-~~3tl::2. V~rf~f;;'/i3/1~ r~
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~~.
5. The following supports my case law regarding the Valuations of Section
13.053302 and the appropriate citing of case law are listed in the footnotes.
1
113. Marilyn Gerber has met her burden of evidence and proof and was
only able to present a partial record due to insufficient time to complete the depositions
of David Brown, Frederick E. Gerber, incomplete documents and insufficient of only
two days of testimony which amounted to approximately less than 4 hours of
~z.
actually cross examination of which during these hearings, Marilyn Gerber was
supposed to finish her deposition of the David Brown and Frederick E. Gerber and
cross examine 4,000 pages of documents.
Marilyn Gerber therefore recommends to this Auditor that the 4,000 pages of
documents be admitted as evidence if they have not already been admitted and
begs of this Auditor and this Court to hold off making any decisions on this Accounting
until the essential companion hearings of July 2005 of the Mildred J. Gerber Trust and
the Fred E. Gerber, Sr. Trust are heard and briefs are prepared. Marilyn Gerber
based on the foregoing, recommends that the First and Final Account of PNC Bank
as Guardian of the Estate of Mildred J. Gerber, as filed on October 24,2003, shall
NOT be confirmed as absolute, and grant that there are exceptions. PNC should
be directed to pay surcharges as decided by this Auditor and this Court and be
ordered to refill an Amended Version of this Accounting and not be granted the
right to file a Statement of Additional Receipts and Disbursements as to the
transactions that have occurred since the Guardianship Account was filed, and
proposes that absolutely NO DISTRIBUTION of the remaining assets in the
Guardianship Account be given to the Executor of the Estate of Mildred J. Gerber.
Marilyn Gerber begs this Auditor to recommend that the Mildred J. Gerber Trust
be frozen and that PNC Bank be removed as Trustee pending the upcoming
hearings and that this Court appoint an impartial individual and not a banking
institution to hold the assets of this Trust in an interest bearing account until all of the
fiduciary Estate and Trusts that are still outstanding with this Court are confirmed
and settled.
I?
Marilyn Gerber asks this Auditor to recommend that Marilyn Gerber has been
deprived of her fiduciary rights, and that PNC Bank has shown a callous
disregard to her rights and has shown malicious intent to deprive her of her property,
and her inheritance thus conspiring with Frederick E. Gerber,1I and Jane Heflin to
defraud her of her beneficiary rights and inheritance.
Marilyn Gerber hereby asks for all counsel fees and all other fees be
surcharged as this Auditor and this Court deems appropriate and that all loss of
income, interest and loss of investments be returned to the Estate and the Trust.
and that this Court grant me Equity in these proceedings and prevent any further
dispersal or sale of any assets, property - tangible or intangible until this Court
makes a final determination.
Respectfully submitted,
Date' ~ oZh-,S-
6'1
Certificate of Service
I hereby certify that on February 9,2005, a true and correct copy of the
foregoing documents was served by US Mail, upon the following:
Mi. Jeannj GnnlitiJieU~jqwire
Rhoads & Sinon
One South Market Street,
Harrisburg, PA 17108
Mr, William A l;)!.inGaI1,
One Irvine Row
Carlisle, PA 17103
Date: #9; !2Jo'6-