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HomeMy WebLinkAbout02-28-05 (4) IN RE: MILDRED J. GERBER TRUST, UNDER AGREEMENT dated, December 19,1994 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY COMMONWEALTH OF PENNSYLVANIA ORPHANS' COURT DIVISION MO. 21-2002-0540 IN RE: FRED E. GERBER,SR. UNDER AGREEMENT,dated July 29,1994 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY COMMONWEALTH OF PENNSYLVANIA ORPHANS' COURT DIVISION'--~ V NO. 21-1998-0195 MOTION FOR SANCTIONS AGAINST FREDERICK E. GERBER,II FOR FAILURE TO PRODUCE DOCUMENTS AND WITHHOLDING ) OF EVIDENCE FOR THE AUDIT OF THE MILDRED J. GERBER AND THE FRED E. GERBER, II TRUST. AND COMES, Marilyn Gerber, Petitioner, full beneficiary of the Fred E. Gerber,Sr. Trust and the Mildred J. Gerber Trust and the Objector of the Accountings of Frederick E. Gerber,1I filed with this Court on July 8m,2002, November 19,2002 and December 30,2002. Both Trusts are irrevocable by reason of death of Fred E. Gerber,Sr. and Mildred J. Gerber and states: 1. PNC Bank in June 2002 filed a citation for the order of the Accountings of the above stated Trust. 2. This Court ordered that the Trustee, Frederick E. Gerber, II filed a full Accounting of the above stated Trusts on July 8,2002. 3. On August 27,2002, PNC Bank and Marilyn Gerber, a full beneficiary of the above stated Trusts filed their respective Objections for the above stated Trusts. 4. In November 2002, Judge Hoffer ordered an Audit and appointed Mr. William Duncan on December 4,2002 to be the Auditor for the above stated Trusts. r,) CG --J -c- , -'" 5. Due to persistent delays by the Trustee, Frederick E. Gerber,lI, discovery for this Audit was not set until August 3,2004. 6. Frederick E. Gerber,1I was ordered by the Auditor, Mr. William Duncan to produce the Request for Documents that Marilyn Gerber had issued to him on April 26,2004 and August 24,2004 no later than September 3,2004. 7. Frederick E. Gerber,1I was ordered by the Auditor, Mr. William Duncan to make himself available for deposition by Marilyn Gerber no later than October 8,2004. 8. Frederick E. Gerber through his attorney, Mr. Richard Rupp, Esquire,was to provide and arrange for the witness of a representative of Charles Schwab as ordered by Mr. William Duncan at the Status Conference hearings in Mr. Duncan's office on September 20,2004. 9. Hearings for the Audit for the two above stated Trusts were scheduled on November 15, 16, and 17,2004. 10. On September 3,2004, Frederick E. Gerber,1I sent only 20% of the Requested Documents to the Petitioner. A large number of the receipts were redacted, blackened out, and 89% of the receipts were not present to back up the checks written on the Charles Schwab account for the two Trusts. Many of the checks were unreadable as they were photocopied too dark. There were no backs of each check to verify the depositor as was requested by the Petitioner. Frederick E. Gerber, II failed to order this from Charles Schwab. 11. On September 3,2004, Frederick E. Gerber,tt provided the monthly statements from the Charles Schwab account for the two Trusts but each page was three holed punched and much of the financial figures and data was punched out and unreadable. ~ Several months of the monthly statements for 2001 did not provide full monthly statements from Charles Schwab listing the account shares owned of each investment. 12. On September 3,2004, Frederick E. Gerber, II failed to include any other checking or savings account for assets held by the above stated Trusts. He failed to account for the original funding of the two Trusts. He failed to account and prove that the Baltimore property was indeed funded in the Fred E. Gerber,Sr. Trust. He failed to provide copies of loan agreements and the terms of repayment. He failed to provide correspondence between himself and PNC Bank, or any other banking institution, or investment company or attorney. He failed to provide any documents of correspondence regarding Marilyn Gerber and the Trusts or her financial statements or her requests for funds. He failed to provide billable hours for the enormous legal bills from up to 5 attorney firms for approximately $100,000. He failed to provide receipts for all of the checks or an accounting for expenditures for himself, his children, his sister, Jane Heflin and her children. He failed to provide copies of all of the pleadings, correspondence between anyone that was connected to the Accountings or the Trusts. He failed to provide the tax reports and accountant's reports and work product for such Federal and State income tax or Trust reports. He failed to provide copies of correspondence to attorneys, Mr. Michael Kane, Ms. Lindsay Baird, Ms. Jacqueline Verney and these letters were not attorney -client privilege. He failed to provide loan agreements and documents that established the creation of the Trusts and the original funding of the Trusts. He failed to provide all documents that were produced for the legal fees that were charged to the two Trusts such as the Petitions ...g and hearings for the Guardianship of Estate and Person, and all of the documents related to these hearings, petitions, pleadings and correspondence regarding these two petitions and hearings. He fails to provide all of the correspondence to PNC Bank regarding the Objections that were filed by PNC Bank and this Petitioner. He fails to provide any of the correspondence that PNC Bank and Marilyn Gerber sent to him regarding the Accountings or the Objections. 13. On September 3,2004, Frederick E. Gerber most strikingly FAILED to provide any monthly statements from Charles Schwab or receipts for checks written for the year January 1,2002 to July 8,2002. Frederick E. Gerber,11 in fact did not file the court ordered Accounting for 2002 until December 30,2002 and then did not even include the months August through December 2002 in an attempt to avoid scrutiny. Mr. Rupp states that this Accounting is not part of the Court order of June 2002 by this Court yet he fails to provide any legal premise or order by this Court. 14. Exhibit proVides a full list of the missing documents requested by Frederick E. Gerber,l1.by this Petitioner. 15. Frederick E. Gerber,tI retired on October 1,2004 yet would not make himself available for a deposition for the week of October 5-8,2004 despite that he was retired and unemployed and would not submit for a deposition as ordered by Mr. William Duncan until October 14,2004. Frederick E. Gerber,1I provided no excuse or reason for this delay. 16. This Petitioner requested by correspondence to Mr. Rupp that Frederick E. Gerber bring the missing documents to his deposition as well as a copy of all documents that he had in his possession for review as well as the ORIGINAL f documents for this Petitioner review and verification against the copies that had been provided to her. Frederick E. Gerber,1I showed up for his deposition late, took frequent breaks, would not answer questions despite this Petitioner asking him the same question 10 times; took frequent breaks to confer with his attorney; returned from lunch late and in summary made every attempt to sabotage, delay the time, and make a mockery of the deposition. Frederick E. Gerber,1I would demean and harass Marilyn Gerber during the break with only his attorney present as a witness. Frederick E. Gerber,l1 would make harassing eye contact from across the table while his attorney was sitting bedside him and the Court reporter had her eyes turned downward. This Petitioner asked Mr. Rupp several times on the record to restrain his witness. Frederick E. Gerber, II would not answer the questions posed to him but rather would take off on a speech of events that occurred between him and the Petitioner as an attempt to essentially testify of his own free will. At many points in the deposition, Frederick E. Gerber,1I would talk to the microphone speaking to Mr. William Duncan saying, "Mr. Duncan, if you are listening....". Frederick E. Gerber stated in deposition on September 27,2004 that he had been in many depositions both private and military so that this Petitioner and this Court can make the conclusion that he has had experience on the behavior of a deponent. 17. This Petitioner could not finish her deposition of Frederick E. Gerber,1I and only completed one half of the questions for the Mildred J. Gerber Trust and did not even start on questions for the Fred E. Gerber Trust. It must be mentioned that Frederick E. Gerber,1I also had virtually no memory of his actions or behavior as Trustee for the above stated Trusts yet he testified that he was responsible for the large b budgets for the Department of Defense up to several hundreds of millions of doUars and could speak about them with accuracy and total recall. 18. Frederick E. Gerber has testified under oath before the Auditor in the PNC hearings that he has no memos, no letters of correspondence regarding the above stated Trusts or letters of correspondence between his parents, or anyone else regarding the two Trusts. Included in this Motion are two letters that are signed by Frederick E. Gerber,1I EXPLICITlY stating that he has memos, and letters and that he would reread them and return his opinions to this Petitioner and or PNC Bank. 19. Frederick E. Gerber,1I and his attorney stated on October 11,2004 and again on October 14,2004 that they would provide the billable hours for the legal fees for the two Trusts, aU the tax reports for the two Trusts, aU of the accountant's documents for the two Trusts and that they would relook for the missing documents requested by Marilyn Gerber. As the date of this Motion for Sanctions, Frederick E. Gerber,1I and his attorney, Mr. Rupp have not provided any supplements but the bare bones documents that were mailed to Marilyn Gerber on September 3,2004. 20. Frederick E. Gerber,1I began to write Marilyn Gerber on October 18 and October 19 ,2004 and essentiaUy threatened her regarding her membership as a Registered Guardian with the National Guardianship Association. Frederick E. Gerber,11 and also harassed this Petitioner about a letter that was sent to PNC Bank regarding a settlement that was not connected with the upcoming hearings. Frederick E. Gerber, II again contacted this Petitioner directly in an attempt to harass her. Marilyn Gerber had to write Mr. Rupp and ask him to restrain his client from directly contacting her and stop harassing her. 6 21. Frederick E. Gerber,1I consistently insists and testifies under oath that he has produced ALL of the documents in his possession yet on October 14,2004, he and his attorney, Mr. Richard Rupp stepped out of the conference room and walked around to another section of the building. This Petitioner remained in the conference room and was surprised to hear Frederick E. Gerber, II and Mr. Rupp behind a back door of the conference room that was slightly ajar state the following as spoken by Mr. Rupp to Frederick E. Gerber,lI, "Fred you know that we have not given her all of the documents, she is going somewhere with her questions." At this point, the Court Reporter stepped into the conference room, sat down at her stenography equipment and reached over and shut the door. This Petitioner never opened this back door or got up from her chair. 22. Due to the lack of complete financial documents, one of Marilyn Gerber's experts cannot fulfill his offer to prepare a report or be prepared to testify due to his inability to make conclusions and act appropriately as an expert witness. This Petitioner at this late date, shall not be able to find a replacement for this expert witness. Mr. Rupp who has the advantage of having access to all of the documents will be bringing 4 expert witnesses. Ms. Verney has not declared an intent to bring any expert witnesses yet she has been substituted to prosecute the Objections filed by PNC Bank. 23. For all of the above reasons, this Petitioner has filed a Petition for a Continuance of the upcoming hearings due to insufficient documents, and inadequate documents for her experts to prepare their reports and their testimony. Marilyn Gerber firmly asserts that her evidence will be jeopardized by Frederick E. Gerber,II's deliberate i and willful withholding of documents with the intent to do harm to the upcoming hearings. WHEREFORE, this Petitioner, Marilyn Gerber requests that this Court impose Sanctions on Frederick E. Gerber,1I and his attorney for the following and all other Sanctions that this Court may deem appropriate: 1 . All of the costs of the deposition and the court reporting stenographer costs from Archive Reporting for the incomplete deposition on October 14,2004 be paid by Frederick E. Gerber,1I personally and no costs shall be paid for by any of the Trusts. 2. All of the attorney fees that Frederick E. Gerber,1I incurred for preparation of the deposition of Frederick E. Gerber,1I on October 14,2004 and all costs related to purchasing the stenographer's court report of this deposition be paid by Frederick E. Gerber,1I personally and not paid by any of the two above mentioned Trusts or Estate of Mildred J. Gerber or Fred E. Gerber, Sr. 3. The lost salary of Marilyn Gerber for the day of the deposition on October 14,2004 and one day of preparing for the deposition on October 13,2004 for the amount of $232.00 per day to be paid by Frederick E. Gerber, II and not from any of the two Trusts. 4. To produce all of the missing documents that were supoened on April 26, 2004 and August 24,2004 and the promised documents that Mr. Richard Rupp, Esquire stated that he would provide in the deposition of Frederick E. Gerber,lI and in any letter addressed to this Petitioner or Mr. Duncan that has not been provided by depositing them at the address of 717 Market Street, # 317, Lemoyne, PA 17103 during business hours by no later than Friday, November 12,2004 and to bring a J' copy for Marilyn Gerber at the first day of the hearings of all such missing documents as requested by Marilyn Gerber on November 15,2004 by 09:00 a.m. in the designated Courtroom as assigned by the Auditor for the hearings on the Accountings. 5. To order that Frederick E. Gerber, II shall not be allowed to testify in his defense on any of the missing documents that he is ordered to produce or that Marilyn Gerber produces on her own through extraordinary measures, investigation and all of the costs of copying or supoening that she may incur to find these missing documents from third parties. 6. Order Frederick E. Gerber, II to provide all the receipts and records, and documents for the period of January 1,2002 to July 8,2002 as was ordered by this Court in June 2002. 7. Any additional costs or penalties that this Court may deem appropriate. 8. In the event that this Court needs a hearing regarding this Petition for Sanctions the Petitioner requests that a hearing be scheduled. 9. FINALLY, this Motion is being resubmitted to this Court per Julde Oler's order of January 14,2005 in which he states that all previous motions which had been dismissed without prejudiced could be resubmitted upon the recommendation of the Auditor, William A. Duncan, Esquire and this Court. This Motion for Sanctions is for the period of the Accounting for 1998 to July 7,2002 for which the discovery period is still active and current. The upcoming Objections which I have filed this week are for the years 2002 which is essentially for July 8,2002 to December 31,2002,2003,2004 and for the expenses projected for the year 2005 up to July 17,2005 and for the Mildred J. Gerber Trust and the Fred E. Gerber,Sr Trusts and r the Accounting for these years have not appointed the Auditor as of yet and discovery schedules have not been firmly stipulated. This information is shared so that there is no confusion as to the period of time and purpose that this Motion for Sanctions has been resubmitted. Any future Motions for Sanctions against Frederick E. Gerber,II as I anticipate may be necessary shall only be for the upcoming Objections and discoverylhearings for 2002,2003,2004 and 2005. Respectfully submitted, Dale: 1tI-~htJj VERIFICATION I, MARilYN GERBER, verify that the statements in the foregoing Petition for Sanctions against Frederick E. Gerber,l1 are true and correct to the best of my knowledge, in formation and belief. Said statements are based on my own knowledge. belief or information. I understand that false statements herein are made subject to penalties of 18 Pa.C.S.A. # 4904 relating to unsworn falsification to authorities. Dale: pd-le; ~.j CERTIFICATE OF SERVICE AND NOW, this ~f February 2005, 1 hereby certify lhall have served a copy of the within document on the following people by depositing a true and correct coy of the same document on the following people by depositing them with the US Post Office, postage, repaid, addressed to: Mr. Richard Rupp, Esquire 355 North 21 st Street Camp Hill, PA 17011 Ms. Jacqueline Verney, Esquire 44 S Hanover Street Carlisle, PA 17103 Mr. William Duncan,Esquire One Irvine Row Carlisle, PA 17103 Date: fJ ,J.I?( m 0