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HomeMy WebLinkAbout04-01-05 Joanne E. Book, Esquire Attorney I.D. No. 82028 Heather Zink Kelly Attorney I.D. No. 86291 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, P A 17108-1146 (717) 233-5731 Attorneys for PNC Bank, N.A. () :-.) -:'-, r,) f"'"'" .,. IN RE: ESTATE OF MILDRED J. GERBER, an Incapacitated Person IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION : No. 21-01-92 ANSWER AND NEW MATTER OF PNC BANK N.A.. TO PETITION TO COMMAND PNC BANK TO RELEASE THE PERSONAL TANGIBLE PROPERTY OF MARILYN GERBER NOW COMES, PNC Bank, N.A. (hereinafter "PNC"), Guardian of the Estate of Mildred J. Gerber, an incapacitated person, by and through counsel, Rhoads & Sinon LLP, and files this Answer and New Matter to the Petition of Marilyn Gerber to Command PNC to Release the Personal Tangible Property of Marilyn Gerber, as follows: 1. Denied as stated. It is admitted that Marilyn Gerber is the eldest daughter and child and potential beneficiary under the Estate of Mildred J. Gerber, who died on January 14, 2003. 2. Denied. PNC is without sufficient information to form a responsive pleading to the allegations contained in Paragraph 2. The same are therefore denied. 3. Denied. PNC is without sufficient information to form a responsive pleading to the allegations contained in Paragraph 3. The same are therefore denied. 511lUfl.\ Q~~ 4. Admitted in part and denied in part. It is admitted that PNC was appointed Guardian of the Estate of Mildred J. Gerber on March 22, 2001. It is denied that PNC performed a minimal inventory of the tangible personal property of Mildred J. Gerber in June 2001. It is admitted that Marilyn Gerber has made non-specific, non-substantiated claims to PNC that she had personal property in the home of her mother, Mildred J. Gerber. The remaining allegations of Paragraph 4 are denied as stated. By way of further answer, PNC properly inventoried the tangible personal property of Mildred J. Gerber and obtained an appraisal of said property by Claude C. Wolfe and Associates. 5. Denied. PNC is without sufficient information to form a responsive pleading to the allegations contained in Paragraph 5. The same are therefore denied. 6. Denied. PNC filed a Petition for Approval of Advance Distribution of Tangible Personal Property on or about April 28, 2004, which Marilyn Gerber answered on or about May 6, 2004. No proceeding was ever held or Order entered with regard to said Petition. 7. Denied. PNC is without sufficient information to form a responsive pleading to the allegations contained in Paragraph 7. The same are therefore denied. 8. Denied as stated. By way of further answer, the tangible personal property of Mildred J. Gerber that had been appraised and had not been removed from the residence by family members was placed into Harrisburg Storage in October 2002 pending sale of the real estate. 9. Denied. 10. To the extent that the statements made in Paragraph 10 consist of allegations, such allegations are denied. -2- 11. Denied. PNC is without sufficient information to form a responsive pleading to the allegations contained in Paragraph 11. The same are therefore denied. 12. To the extent that the statements made in Paragraph 12 consist of allegations, such allegations are denied. NEW MATTER 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. 14. The Guardianship Account included all transactions relating to the tangible personal property of Mildred J. Gerber. 15. On or about November 21, 2003, Marilyn J. Gerber ("Ms. Gerber") filed Objections to the Guardianship Account (the "Objections"). 16. By Order dated November 25, 2003, this Court appointed William Duncan, Esquire as Auditor in to hear the Objections filed by Ms. Gerber to the Guardianship Account. 17. On or about December 15, 2003, PNC filed an Answer to Ms. Gerber's Objections to the Guardianship Account. 18. By Order dated July 8, 2004, this Court continued the appointment of the Auditor until January 31,2005 with regard to the Guardianship Account. 19. A Hearing was held with regard to Ms. Gerber's Objections to the Guardianship Account on September 28-29, 2004. 20. By Stipulation of the parties filed September 27,2004, it was agreed that as to the Guardianship Account, the scope of the Hearing which was to be held September 28-29, 2004 -3- was to include the various matters including the administration of the Guardianship Estate by PNC, the scope of the relevant time period would be limited to March 23, 2001 to October 20, 2003, and the subject matter of the Hearing would be limited to those matters which were relevant to the Objections raised by Ms. Gerber and PNC's defense of those Objections, which included PNC's alleged mismanagement of assets, including the tangible personal property. 21. By Order dated December 7, 2004, this Court continued the appointment of the Auditor until March 31, 2005. 22. At no time during the Hearing held September 28-29, 2004, or at any time during the proceedings in the above matter, has Ms. Gerber presented any evidence to document her claims of ownership of any of the tangible personal property of Mildred J. Gerber. 23. At no time during the Hearing held September 28-29, 2004, or at any time during the proceedings in the above matter, has Marilyn Gerber presented any evidence or basis to surcharge PNC for any of its actions relating to the tangible personal property. 24. Ms. Gerber was provided a full and complete opportunity to raise all issues with regard to the tangible personal property at the Hearing held on September 27-28,2004. 25. Ms. Gerber's claims are barred by res judicata and/or collateral estoppel, 26. Despite numerous requests and opportunities, Ms. Gerber has failed to provide PNC with any list or any documentation that any of the tangible personal property that was in the home of Mildred J. Gerber was the property of Ms. Gerber. 27. Ms. Gerber's claims are barred by laches. 28. On February 6, 2003, the Will of Mildred J. Gerber was admitted to probate by the Register of Wills for Cumberland County and her son, Frederick E. Gerber, II (the "Executor") was awarded Letters Testamentary pursuant to ITEM V of her Will. -4- 29. Mildred J. Gerber specifically bequeathed her tangible personal property to her son and Executor, Frederick E. Gerber, II in ITEM II of her Will, with the stated expectation that he would honor any written instructions with regard to the property, and that any property not distributed to him would be sold and the proceeds pass to her residuary estate. 30. Should Ms. Gerber wish to make a claim for any of the tangible personal property allegedly belonging to her, the transfer of said property to the Executor in accordance with the Will does not prevent her from doing so, as she may proceed with any such claim after the transfer is made. 31. Ms. Gerber has failed to state a claim upon which relief can be granted. 32. Ms. Gerber's claims are barred, in whole or in part, by the doctrines of waiver and/or estoppel. 33. Ms. Gerber's claims are barred, in whole or in part, by the doctrine of unclean hands. 34. Ms. Gerber's damages, if any, are caused by her failure to mitigate. 35. In the event that Ms. Gerber has suffered damages or loss, which is denied, such damages or loss were caused, in whole or in part, by the actions of Ms. Gerber. 36. In the event that Ms. Gerber has suffered damages or loss, which is denied, such damages or loss were caused, in whole or in part, by the acts of third parties, over whom PNC had no control. - 5 - WHEREFORE, PNC Bank, N.A., respectfully requests that this Court deny the Petition to Command PNC Bank to Release the Personal Tangible Property of Marilyn Gerber, and order the distribution of such assets to the Estate of Mildred J. Gerber upon confirmation of the Guardianship Account ofPNC Bank, N.A., by the Auditor in this matter. Respectfully submitted, RHOADS & SINON LLP By: e E. Book H ther Zink Kelly e South Market Square P. O. Box 1146 Harrisburg, P A 17108-1146 (717) 233-5731 Attorneys for PNC BANK, N.A. -6- VERIFICATION David A. Brown, deposes and says, subject to the penalties of 18 Pa. C.S. 94904 relating to unsworn falsification to authorities, that he is the Vice President ofPNC Bank, N.A., that he makes this verification by its authority and that the facts set forth in the forgoing Answer and New Matter to the Petition of Marilyn Gerber to Command PNC to Release the Personal Tangible Property of Marilyn Gerber are true and correct to the best of his knowledge, infonnation and belief. ~ /, /lJr ~ David A. Brown Date CERTIFICATE OF SERVICE I hereby certify that on April I, 2005, a true and correct copy of the Answer and New Matter to the Petition of Marilyn Gerber to Command PNC to Release the Personal Tangible Property of Marilyn Gerber was served by U.S. mail, certified, return receipt requested, upon the following: Marilyn J. Gerber 717 Market Street, #317 Lemoyne, P A 17043 and by U.S. mail, first class, postage pre-paid, upon the following: Richard C. Rupp, Esquire Rupp and Meikle 335 North 21st Street, Suite 205 Camp Hill, PA 17011 William A. Duncan, Esquire Duncan, Hartman & Douglas, P.C. One Irvine Row Carlisle, P A 17013 ~~ ~annon Whitson 516513.1