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Home My WebLink About04-26-05 IN RE: ESTATE OF MILDRED ESTATE,anincapacitated person IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY,PENNSYl VANIA ORPHANS' COURT DIVISION NO. 21-2001-92 IN RE:MILDRED J. GERBER TRUST NO. 21-2002-0540 UNDER AGREEMENT DATED DECEMBER 19,1997 C") . ~) MOTION FOR A HEARING BEFORE JUDGE OLER TO RECONSIDI;R PERIODS AS A RESULT OF TRUSTEE'S ABSENCE FROM THE UNITED STATES AND TO DELINEATE PROCEDURAL ISSUES. . NOW COMES, Petitioner, Marilyn Gerber who is the eldest child of Mildred J. Gerber and a full beneficiary of the Estate and Trust stated above and files this Motion for a Status Conference Before Judge Oler to Establish Deadlines and . Discovery Periods for the Pending Litigation, as follows: 1. At a conference before Auditor William Duncan on March 17,2005 a schedule was established and agreed to by all counsel for discovery, in an effort to prepare for the upcoming hearing scheduled for early September on the Objections to the Accounting by the Trustee. 2. On March 17,2005, Stipulations were signed by all parties, copies of which are attached hereto. Exhibit A 3. On March 17,2005 upon the signing of all counsel of the agreed Stipulation, Marilyn Gerber served Richard Rupp,Esquire a Request for Production -.J ~. J r~.,) of Documents which would have been due on April 15,2005. Time was of the essence to enable Petitioner to prepare for trial. 4. On April 14,2005, Richard Rupp, Esquire faxed the Petitioner requesting a continuance stating that Frederick E. Gerber,1I was out of the country. Petitioner disapproved of this Motion and faxed her response back to Rupp on April 14, 2005. 5. Despite the agreement to a time schedule by all counsel, they have an disregarded them and obtained extensions from the Court based on a simple assertion that Frederick E. Gerber,1I is "out of the country". Where he is located, when he left and when he is e)(;pected to return is not set forth nor verified. 6. Last year, Frederick E. Gerber,1I through his counsel, Richard Rupp, was able to delay this matter and that of the Accounting of PNC Bank for seven months, claiming the protection of the Sailors and Soldiers Relief Act. Although he returned from Iraq in December 2003, he never advised the Court to lift the stay order and thus delayed the proceedings. 7. Further, on or about February 11,2004, at a status conference hearing before all counsel and Auditor William Duncan, Richard Rupp advised all that Frederick E. Gerber,1I had returned from Iraq and that his orders had expired. Auditor Duncan advised Richard Rupp to file this information with the Court to lift the Stay Order and this was never done. 8. Finally,this Petitioner filed a Motion in June 2004 asking for the Court to examine the fact that Frederick E. Gerber,1I NEVER filed Motion to lift the Stay but was indeed in the country, continuing to invoke the Sailors and Soldiers Relief Act in an effort to delay these proceedings, avoid depositions and the answers to Request . for Documents and Interrogatories. Ultimately, Frederick E. Gerber,1I NEVER answered the numerous requests for Production of Documents or Interrogatories for the PNC hearing on September 28,29,2004 resulting in prejudice to the Petitioner for that hearing before the Auditor. 9. The Court referred Petitioner's Motion, to the Auditor for decision. review Petitioner's Motion. On August 3,2004, before Auditor Duncan, Richard Rupp finally appeared to produce his client, Frederick E. Gerber,11. 10. All times material herein, Frederick E. Gerber,1I has embarked on a studied course of delay to prevent the progress of this case by not adhering to time deadlines, refusing to provide answers to Request for Production of Documents, supplying incomplete documents, redacting financial information from materials produced, photocopying incomplete pages of financial data, making himself unavailable for depositions, harassing the Petitioner during his deposition on September 27,2005 resulting in the Petitioner requesting that the Auditor come to the Courthouse for assistance, verbally harassed the Petitioner during his deposition on October 14,2004, refused to answer Interrogatories and in one instance, completely refused to answer the Request for Production of Documents. 11. Frederick E. Gerber,1I has legal counsel of Herbert Rupp,Esquire, Richard Rupp,Esquire, Lindsay Baird,Esquire and Jacqueline Verney,Esquire. These attorneys have been the architect and authors of all of the Court ordered Accounting and are in complete possession of all financial documents that were necessary to author the Accountings. The unavailability of the Trustee is but a continued excuse and insult to this Court and an attempt to frustrate the efforts of the Petitioner in obtaining a proper Accounting without a prolonged dissipation of her parents' Estate and Trusts in paying of these needless counsel fees. 12. All of these delays have further resulted in severe financial pressure on the Petitioner and a dissipation of her right of inheritance. 13. These continued delays by the Trustee has effectively allowed the Trustee continued opportunity to access funds and assets from the Estate and Trusts for his personal enrichment and has only served to prolong his ultimate day in Court for surcharge. 14. If the Petitioner cannot be available due to his previous military demands and his now current secret and erratic travel schedule( and despite his adequate and numerous attorneys), the Trustee should be removed and a new Trustee should be appointed. 15. Recent requests for continuances and extensions of the Stipulation deadline periods were filed by attorneys, Lindsay Baird,Esquire and Richard Rupp, Esquire and were entered exparte without affording me an opportunity to contest it in Court and be heard on the record. WHEREFORE, Petitioner your honorable Court is requested to hold a hearing to set forth a procedural basis for all petitions so that matters will not be decided exparte: to designate a new discovery schedule as a result of more delay by the Trustee's absence. To hear evidence concerning the whereabouts of the Trustee, his likely period of absence from this jurisdiction and dates of his return; enforce the answer of all Request for Production of Documents, Interrogatories and Depositions .c__ -' > and the supoenas of witnesses and adequate time for expert witnesses to review all of the documents produced. The Stipulations heretofore entered have been disrupted and the Petitioner anticipates an onslaught of new Motions before this Court and and therefore respectfully requests a hearing to resolve the issues raised herein. Respectfully submitted, Marilyn Gerber,Pro Se 717 Market Street,#317 Lemoyne,PA 17043 TEL 717 503-5280 FAX 717737-7116 DATE: ~,;J1 ~) VERIFICATION I, Marilyn Gerber, deposes and says subject to the penalties of 18 Pa. C.S. 4904 relating to unsworn falsification to authorities, that she make this verification by its authority and that the facts set forth in the above stated Motion before Judge Oler are true and correct to the best of his knowledge, information and belief. DATE: ~~awr CERTIFICATE OF SERVICE I hereby certify that on APri~~5' a true and correct copy of the above stated Motion before Judge Oler was served by US Mail, postage prepaid, upon the following: Jacqueline Verney,Esquire 44 South Hanover Street Carlisle,PA 17013 Lindsay Baird,Esquire 37 South Hanover Street Carlisle,PA 17013 . Richard Rupp,Esquire 355 North 21 st Street Camp HiII,PA 17011 William Duncan,Esquire One Irvine Row Carlisle,PA 17013 IN RE: FRED E. GERBER,SR TRUST UNDER AGREEMENT, dated . July 29, 1994 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY COMMONWEALTH OF PENNSYLVANIA ORPHANS' COURT DIVISION NO. 21-199S-0195 0 ,- ?;:o ~;J;g ;;;1;P ,:" ?: gj -J '::CJ) 7' ~;;S3~~ ~ .-)':~;:; ::::, IN RE: MILDRED J. GERBER,TRUST UNDER AGREEMENT, dated December 19,1997 NO. 21-2002-0540 STIPULATIONS. OF PARTIES (..J1 o IT IS HEREBY STIPULATED AND AGREED by and among counsel for their respective clients and the parties in the above matters that the following terms and conditions shall apply to the proceedings before Auditor William A. Duncan,Esquire, , regarding the audits of the above captioned matters: A. With regard to Docket No. 21-199S-0195: 1. Discovery shall begin on March 17,2005 and shall end on June 1,2005. 2. All outstanding discovery issues shall be presented to the Auditor for disposition on or before June 15,2005. 3. A Pre-Trial Conference shall be held on July 7,2005, at 1 0:00AM at a location designated by the Auditor. A Pre-Trial Memorandum is due on said date setting forth the parties respective factual and legal positions,as well as any proposed witnesses and exhibits. 4. Hearings shall be held on September 7,S,and 9th2005. The location of the hearings shall be designated by the Auditor. Hearings shall begin at 09:00AM and end at 4:30PM. The lunch break shall run from 12:00PM noon to 1 :15PM. 5. Suggested finding of fact, conclusions of law and a brief in support "'" = = CJ1 :x ~ orJ -.-, :::ofTl C~~~ ':-L.::.';:::..., .1) ;;;:':::-"'. .t"--" r"", ,-:" ,~-: '~'~d c::i ~ o rn .:::) -1'1 ~ shall be due 30 days from the date the transcript is filed. 6. The parties consent to an extension of time for the filing of the Auditor's Report until December 30,2005. B. With regard to Docket NO.21-2002-0540 1. All of the above paragraphs as stated above shall hereby apply for Docket No.21-2002-0540. 2. The parties and their counsel do hereby swear before the Auditor, William A. Duncan, Esquire and the Clerk of the Orphans' Court to these Stipulations. . ~A~ acq line M. Verney,Esquire 44 South Hanover Street Carlisle, PA 17013 Dated June 27,2003 ---- / Richard C. Rupp, E uire 355 North 21 st Street,Suite 205 Camp HiII,PA 17011 ~::; t:.."::"> c..n (..,}, 1.._'1 -',i o