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Home My WebLink About01-15-15 �`V � <j � `-,-' �a rn c o �.� � � c.n � -z� `�'? c� rT� �-, � : � �:j ,, = _ �� : . . !� H . „ , _ . j.r� � � �?1 ..„. ,,} ._,.,, �� ;.:":7 .. ..,i . . ...� � ' " � c, , � "� _, , � � "l . 3 C�,� � �� - r ft1 �._ - O Cr3 � ..� '�'1 David A. Mills, Esquire PA 37192 BLAKEY, YOST, BUPP & RAUSCH, LLP 17 East Market Street York, PA 17401 (717) 845-3674 Attorneys for PetitioneY Runcly L Cramer IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION IN RE: : No. 21-08-0544 ESTATE OF JUNE K. OTTO, : Late of South Middleton Township, : Deceased � MOTION FOR ORDER OF SANCTIONS AND NOW, this 13`" day of January, 2015, comes the Petitioner, Randy L. Cramer, by counsel, David A. Mills, Esquire of Blakey, Yost, Bupp & Rausch, LLP, who files this Motion for Order of Sanctions, pursuant to Supreme Court Orphans' Court Rule 3.6, Depositions, Discovery, Production of Documents and Perpetuation of Testimony, and Pa. R.C.P. No. 4019 (c) (2), Sanctions, as follows: 1. On October 27, 2014, Petitioner, Randy L. Cramer, filed a Petition for Order Directing Conveyance of Real Property Sold on Contract by Decedent, specifically the parcel of land that was subdivided from the remainder of 331 Old East York Road, Carlisle, Pennsylvania, comprising approximately 35 acres, more or less. 2. On October 29, 2014, the Court entered an Order for Rule to Sl�ow Cause that stated in 1 part that Discovery shall be served within 30 days of filing an Answer; 3. On October 31, 2014, Petitioner, Randy L. Cramer, served a Request far Production of Documents far Inspection, Examination, and Photocopying. 4. On November 17, 2014, Respondents, Edwin R. Otto and Patrick K. Myers, Co- Executors of the Last Will and Testament of June K. Otto, deceased, filed an Answer to the Petition contending, inter alia, that "the responsibility for subdivision and payment of the significant costs associated with subdivision"were issues for trial. 5. On Monday, December 1, 2014, thirty (30) days having elapsed, an Answer to the Request for Production of Documents for Inspection, Examination, and Photocopying was due. 6. Respondents, Edwin R. Otto and Patrick K. Myers, Co-Executors of the Last Will and Testament of June K. Otto, deceased, served no Answer and produced no documents. 7. On December 22, 2014, Petitioner, Randy L. Cramer, filed a Petition for Order Directing Compliance with Discovery. 8. On December 29, 2014, this Honorable Court entered an Order, pursuant to Pa.RC.P. No. 4019 (a) (1) (viii), which directed Respondents, Edwin R. Otto and Patrick K. Myers, Co-Executors of the Last Will and Testament of June K. Otto, deceased, to comply with the aforesaid Request on or before the 12`" day of January 2015. 9. As of January 13, 2015, seventy-four (74) days having elapsed since service of the request, no Answer was served and no Documents were produced. 10. The Pennsylvania Rules of Civil Procedure allow sanctions as follows: (c) The court, when acting under subdivision (a) of this rule, may make (1) ...; (2) an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting such party from introducing 2 in evidence designated documents, things or testimony, or from introducing evidence of physical or mental condition; (3) ...; (4) ...; (5) such order with regard to the failure to make discovery as is just. 11. The failure of Respondents, Edwin R. Otto and Patrick K. Myers, Co-Executors of the Last Will and Testament of June K. Otto, deceased, to produce documents prejudices Petitioner in his prosecution of the Petition for Order Directing Conveyance of Real Property Sold on Contract by Decedent, as the Documents requested would relate to the tax on the property prior to subdivision and payment of the "significant costs associated with subdivision." 12. Documents the Petitioner requested were regarding the value of the property, statements from witnesses, photographs of the property, farm rental income, tax payments, engineering and environmental reports, and various preliminary subdivision plans from Brehm — Lebo Engineering, Inc., Cumberland Geoscience Consultants, a Division of Duffield Associates, the County, Township, and School tax authorities, the Cumberland County Planning Department, realtor Janice Pace, realtors Wolfe and Shearer, realtor Vincent D. Mellott, Century 21-A Better Way, and South Middleton Township. 13. Argument and an evidentiary hearing are scheduled for next Friday, January 23, 2015, at 9:30 a.m. in Court Room 3 at the Cumberland County Court House. 14. The factors for the Court to consider when determining an appropriate sanction under Rule 4019 are, as follows: (1) the nature and severity of the discovery violation; (2) the defaulting party's willfulness or bad faith; (3) prejudice to the opposing party; (4) the ability to cure the prejudice; and(5) the importance of the precluded evidence in light of the failure to comply. 3 15. As aforesaid, Pa. R.C.P. No. 4019(c)(2) specifically authorizes trial courts to enter orders prohibiting the disobedient party from introducing evidence at trial. Smith v. Philadelphia Gas Works, 740 A.2d 1200, 1203 (Pa. Commw. Ct. 1999). Wherefore, Petitioner, Randy L. Cramer, respectfully requests this Honorable Court to issue an Order of Court prohibiting Respondents, Edwin R. Otto and Patrick K. Myers, Co-Executors of the Last Will and Testament, of June K. Otto, deceased, from introducing evidence at trial. Respectfully, B KEY, YOST, BUP1� &RAUSCH, LLP � � � " � Dated: !� �..�, �c� � ��5 Y� � � � avid A. ills, Es uire PA 37192 � � 17 East Market Street York, Pennsylvania 17401 (717) 845-3674 Attorneys for Petitioner, Randy L. Cramer 4 CERTIFICATE OF SERVICE I, David A. Mills, Esquire, hereby certify that I have served a true and correct copy of the foregoing MOTION FOR ORDER OF SANCTIONS, by depositing a copy of same in the United States Mail, regular delivery, postage prepaid as follows: Douglas Miller, Esquire Irwin & McKnight, P.C. 60 West Pomfret Street Carlisle, PA 17013 BLAKEY, YOST, BUPP & RAUSCH, LLP Dated: i ti�L� �Qo�; �„ , � ` v' . Mil , Esquir A 37192 17 East Market Street York, PA 17401 (717) 845-3674 Attorney for Petitioner, Randy L. Cramer