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David A. Mills, Esquire PA 37192 ; ry r= M
BLAKEY, YOST,BUPP &RAUSCH, LLP
17 East Market Street CDP
York, PA 17401
(717) 845-3674
Attorneys for Petitioner, Randy 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
SECOND MOTION FOR ORDER OF SANCTIONS
AND NOW, this 21" 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 Second
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.Nos. 4019(a)
(1) (viii) and 4019 (c) (2), Sanctions, as follows:
1. On October 29, 2014, the Court entered an Order, scheduling argument and an
evidentiary hearing for Friday, January 23,2015 on the Petition for Order Directing Conveyance of
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Real Property Sold on Contract by Decedent,pursuant to the Probate,Estates and Fiduciaries Code,
20 Pa.C.S.A. § 3390.
2. On October 31,2014,Petitioner,Randy L. Cramer,served counsel for Respondents,
Edwin R. Otto and Patrick K.Myers,Co-Executors of the Last Will and Testament of June K. Otto,
deceased, with a Request for Production of Documents for Inspection, Examination, and
Photocopying.
3. On November 25, 2014, counsel for Petitioner and Respondents met in and outside
Court Room No. 1 where the First and Final Account of Respondents and Objections of Petitioner
thereto were presented for confirmation and decree or transfer to the Honorable Edward E. Guido,
Judge.
4. On December 1, 2014, Respondents, Edwin R. Otto and Patrick K. Myers, Co-
Executors of the Last Will and Testament of June K. Otto, deceased, did not serve an answer
including objections to each numbered paragraph in the request,pursuant to Pa.R.C.P.No.4009.12.
5. On December 11, 2014, Petitioner's counsel sent correspondence to Respondents'
Counsel, which stated in relevant part, deleting the terms of the settlement proposal, as follows:
I remind you that the Request for Production of Documents for Inspection,
Examination, and Photocopying was served on October 31, 2014, requiring an
Answer and the production of Documents on or before Monday,December 1,2014.
I appreciate the fact that we discussed possible settlement on ... the"Southern
tract" ...,but those settlement discussions outside the court room on November 25,
2014 should not be seen as obviating the requirement to attend to the discovery in
this matter.
Please attend to the discovery now to avoid court involvement. Thank you.
6. On December 29,2014,this Court's Order,directed Respondents,Edwin R. Otto and
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Patrick K.Myers,Co-Executors of the Last Will and Testament of June K.Otto,deceased,to comply
with discovery, pursuant to Pa.R.C.P. No. 4019 (a) (1) (viii), on or before January 12, 2015.
7. On January 13,2015,. no Answer to the Request was served,and no Documents were
produced, and a Motion for Sanctions was mailed for filing with the Clerk of the Orphans' Court.
8. On January 1.4, 2015,Responses and Objections, attached hereto in relevant part as
Exhibit 1, to the request for documents were received in an envelope that lacked a mailing date,
attached hereto in relevant part as Exhibit 2, along with some,but not all, documents requested, as
follows:
(1). All appraisals, assessments, comparative market analyses, and other
valuations in the possession, custody or control of you,your attorneys, or any other
person or entity acting on your behalf, showing,representing, or purporting to show
the property at 331 East Old York Road(south—37 acres), Carlisle Pennsylvania.
ANSWER:
• Appraisal of William A. Bassett, GA-001618-L, Wolfe and Shearer
Appraisal Services,Parcels 40-11-0286-001 and 40-11-0286001G,as of
October 9, 2008,
• Opinion of Vincent D.Mallott,Century 21 A Better way,+/-37 acres
tract, portion of parcel 40-11-0286-001, undated;
• None as of date of death, May 2, 2008;
(2). All statements, signed statements,transcripts of recorded statements
or interviews, recorded statements if not transcribed, or renderings of recorded
statements if not transcribed verbatim taken of any party,person,or witness as part of
the investigation of the subject matter of this litigation which is in the possession,
custody or control of you, your attorneys or anyone else acting on your behalf.
ANSWER:
• No statements were produced
(3). All diaries,calendars,films,photographs,video recordings,diagrams,
drawings,or any other writing now in the possession,custody or control of you,your
counsel, or any other person acting on your behalf, made since the death of June K.
Otto of the property at 331 East Old York Road (south — 37 acres), Carlisle
Pennsylvania.
ANSWER:
• No diaries
• No calendars
3
F
• No films
• No photographs other than three in black and white in the appraisal at
52, 54, and 60
• No video
• No diagrams
• No drawings
• No other writing now in the possession, custody or control of the
fiduciaries, their counsel, or any other person acting on their behalf,
made since the death of June K. Otto of the property at 331 East Old
York Road (south—37 acres), Carlisle Pennsylvania.
(4). All records pertaining to farm rental income of the property at 331
East Old York Road(south—37 acres),Carlisle Pennsylvania,paid since the death of
June K. Otto on May 2, 2008.
ANSWER:
• No records of farm rental income, only a summary of payment
received in 2008, 2009, 2010, 2011, and 2012.
(5). All tax Forms 1.041 filed with the US Department of Treasury Internal
Revenue Service and all Forms PA41 filed with the Pennsylvania Department of
Revenue for tax periods beginning May 2, 2008 until the present.
ANSWER:
• Only the 2013 Form 1041 and PA41, which does not show farm
income received, was produced.
• No Forms 1041 or PA41 for 2008, 2009, 2010, 2011, 2012.
(6). All correspondence, letters, notes, memoranda, to and from Brehm-
Lebo Engineering, Inc., as well as all surveys,plans,preliminary subdivision plans,
final subdivision plans,wetlands studies,Phase I Environmental Assessments,Phase
II Environmental Assessments,topographic studies,stormwater management reports,
bills,invoices,statements,agreements,contracts and filings with local governmental
authorities pertaining to the subdivision of the property at 331 East Old York Road
(south— 37 acres), Carlisle Pennsylvania.
ANSWER:
• 13 bills, invoices, or statements, were produced
• One page of a Final Minor Subdivision plan,that is comprised of four
pages, was produced
• Two letters,April 5,2013 and December 18,2014,from.Brehm-Lebo
Engineering, Inc.,
• No correspondence to Brehm-Lebo Engineering, Inc.
• No notes to or from Brehm-Lebo Engineering, Inc.,
• No memoranda to or from Brehm-Lebo Engineering, Inc.,
• No surveys,
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• No preliminary subdivision plans,
• Not the entire Final subdivision plans, as aforesaid
• No wetlands studies,
• No Phase I Environmental Assessment,
• No Phase II Environmental Assessments,
• No topographic studies,
• No stormwater management reports,
• No agreements,
• No contracts, and
• No filings with local governmental authorities.
(7). All civil, environmental, and geotechnical engineering plans,
engineering and science consulting service reports, correspondence, letters, notes,
memoranda,to and from Duffield Associates, as well as all construction review and
testing services, design and construction services, bills, invoices, statements,
agreements, contracts and filings with local governmental authorities pertaining to
the subdivision of the property at 331 East Old York Road (south — 37 acres),
Carlisle Pennsylvania.
ANSWER:
• 1.1 Invoices were produced,
• No civil, environmental, or geotechnical engineering plans,
• No engineering and science consultiniz service reports,
• No correspondence, letters,notes,memoranda, to and from Duffield
Associates,
• No construction review and testing services,
• No design and construction services,
• No records of payment,
• No contracts, and
• No filings with local governmental authorities.
(8). All tax bills for county,township,and school taxes on which you rely
to make claim for pro-rated real estate taxes of the property at 331 East Old York
Road (south—37 acres), Carlisle Pennsylvania from 2008 until 2013.
ANSWER:
Bills dated as follows were produced:
• 7/1/2013
• 3/1/2014
• 7/01/2014
• None from 2008, 2009, 2010,. 2011, or 2012.
9. Where a party fails to completely answer discovery, the Court should treat such
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default as an admission or disallow proof at trial of such undisclosed information.See,Baranowski v.
American Multi-Cinema, Inc., 455 Pa. Super. 356, 688 A.2d 207 (1997).
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,
BLAKEY, YOST, BUPP &RAUSCH, LLP
Dated: 021 J GQo By
Da ' ill , Esquire 37192
17 East Market Street
York, PA 17401
(717) 845-3674
Attorneys for Petitioner, Randy L. Cramer
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ESTATE OF JUNE K. OTTO, : IN THE COURT OF COMMON PLEAS OF
DECEASED : CUMBERLAND COUNTY,PENNSYLVANIA
ORPHAN'S COURT DIVISION
NO. 21-08-0544
RESPONSES OF RESPONDENTS TO PETITIONER'S
REQUEST FOR PRODUCTION OF DOCUMENTS
TO: Randy L. Cramer
c/o David A. Mills, Esquire
Blakey, Yost,Bupp&Rausch, LLP
17 East Market Street
York, PA 17401
PLEASE TAKE NOTICE that pursuant to the Pennsylvania Rules of Civil and Orphans'
Court procedure, Edwin R. Otto and Patrick K. Myers, Co-Executors of the Estate of June K. Otto
respond to the Request for Production of Documents of Petitioner by serving the attached responses.
Respectfully submitted,
IRWIN&McKNIGHT,P.C.
Date: January 12,2015
Douglas C4 Miller,Esquire
Supreme Court ID No. 83776
60 West Pomfret Street
Carlisle,PA 17013
(717)249-2353
EXHIBIT
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GENERAL OBJECTIONS
1. Respondents object to the instructions contained in the Request for Production of
Documents to the extent they impose, or attempt to impose, any obligations upon Respondents
that are inconsistent with and/or exceed the requirements of the Pennsylvania Rules of Civil
Procedure, the Pennsylvania Orphans' Court Rules, the applicable rules governing practice in the
Court of Common Pleas of Cumberland County, or applicable case law.
2. Respondents object to the disclosure of any information protected by the attorney-
client privilege, the attorney work-product doctrine and/or other applicable privileges or
immunities. Respondents reserve the right to assert a privilege with respect to any such
information, and further assert the right to request the return of all privileged information that
may be inadvertently disclosed.
3. Respondents preserve all evidentiary objections and, accordingly, no waiver by
Respondents of any objection is to be implied from these responses, or the information disclosed.
To the extent that any response might arguably waive an otherwise valid objection or claim of
privilege, immunity or confidentiality, such waiver shall be limited only to the specific subject
matter of the response and shall not extend to any other matter, or any further discovery request.
Specifically, by responding to these or other discovery requests, Respondents are not admitting
that the subject matter of the response is relevant to the pending action or not protected by the
attorney-client privilege, attorney work-product doctrine, or other applicable privileges or
immunities.
4. Respondents object to the Request for Production of Documents to the extent that
they call for information that is neither relevant to the subject matter involved in the pending
action, nor reasonably calculated to lead to the discovery of admissible evidence.
5. Respondents response are based only upon information and documents reasonably
available and known to them and their counsel after a reasonably diligent investigation and
search of their records and files. Respondents reserve the right to supplement or modify any and
all of their objections and responses if additional information is obtained or otherwise becomes
available.
6. Respondents hereby incorporate by reference, as if fully set forth therein, each of
the foregoing General Objections in each of their specific responses to each of the Requests for
Production of Documents.
I
RESPONSES
1. See generally prior correspondence dated November 21, 2014, and the exhibits attached
thereto. In addition to the documents already provided, all such documents are attached to
the best of Respondents' knowledge, information, and belief; however, Respondents reserve
the right to amend their response in the event additional documents or exhibits are identified.
2. Respondents are not aware of any such statements at this time.
3. All such documents are attached to the best of Respondents' knowledge, information, and
belief; however, Respondents reserve the right to amend their response in the event
additional documents or exhibits are identified
4. All such documents are attached to the best of Respondents' knowledge, information, and
belief; however, Respondents reserve the right to amend their response in the event
additional documents or exhibits are identified.
5. All such documents are attached to the best of Respondents' knowledge, information, and
belief; however, Respondents reserve the right to amend their response in the event
additional documents or exhibits are identified.
6. All such documents are attached to the best of Respondents' knowledge, information, and
belief; however, Respondents reserve the right to amend their response in the event
additional documents or exhibits are identified.
7. All such documents are attached to the best of Respondents' knowledge, information, and
belief; however, Respondents reserve the right to amend their response in the event
additional documents or exhibits are identified.
8. See generally prior correspondence dated November 21, 2014, and the exhibits attached
thereto. All such documents were already provided to the best of Respondents' knowledge,
information, and belief; however, Respondents reserve the right to amend their response in
the event additional documents or exhibits are identified.
9. All such documents are attached to the best of Respondents' knowledge, information, and
belief; however, Respondents reserve the right to amend their response in the event
additional documents or exhibits are identified.
VERIFICATION
The foregoing document is based upon information which has been gathered by my
counsel and myself in the preparation of this action. I have read the statements made in this
document and they are true and correct to the best of my knowledge, information and belief. I
understand that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section
4904,relating to unsworn falsification to authorities.
'RICK K. MYERS, to-Executor
Date: 1/12/15
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CERTIFICATE OF SERVICE
I, David A. Mills, Esquire, hereby certify that I have served a true and correct copy of the
foregoing SECOND MOTION FOR ORDER OF SANCTIONS,by depositing a copy of same in the
United States Mail, regular delivery,postage prepaid and by fax at 71.7-249-6354 as follows:
Douglas Miller, Esquire
Irwin & McKnight, P.C.
60 West Pomfret Street
Carlisle, PA 17013
BLAKEY,YOST, BUPP & RAUSCH, LLP
Dated:,00,10a, C9,0 i'o-
ilast
ills, Esq ' e PA 37192
Market Street
York, PA 17401
(717) 845-3674
Attorney for Petitioner, Randy L. Cramer