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HomeMy WebLinkAbout04-17-15 8. Admitted. By way of further response, despite being contacted by Parthemore prior to the cremation,Movant allowed the cremation to proceed without filing a petition to seek to prevent the cremation or other disposition of the decedent by Objector. The decedent's remains were disposed of by Objector and now the only matter that remains is Movant's duty to pay the priority claim by reimbursing Objector for her costs. 9. Denied with objection. This averment should be stricken as scandalous and impertinent,is contrary to Pa.R.E. 408, and is an attempt to improperly include inadmissible evidence of settlement negotiations. 10. Denied with objection. This averment should be stricken as scandalous and impertinent,is contrary to Pa.R.E. 408, and is an attempt to improperly include inadmissible evidence of settlement negotiations. 11. Admitted in part, denied in part. It is admitted that Objector proceeded with her arrangements of cremation. It is denied that Objector retained possession of Decedent's ashes. To the contrary, Objector had Decedent's ashes buried in Arlington National Cemetary. 12. Denied. To the contrary, Objector acted pursuant to 20 Pa.C.S. § 305(c) as the next of kin in having the sole authority to dispose of the remains of Decedent,in interring Decedent's remains at Arlington National Cemetary on or about July 12, 2012. 13. The record speaks for itself. 14. Admitted. 15. Admitted with clarification. The figure for the attorney's fees incurred of$2,566.50 was the figure for the fees incurred as of the date of filing of the Objections on February 12, 2014. Since the filing, Objector has continued to incur additional attorney's fees. At the appropriate time, a certification of counsel fees will be submitted to reflect the additional fees incurred. 16. Admitted. By way of further response, Objector acted pursuant to 20 Pa.C.S. 305(c) as the next of kin in having the sole authority to arrange for the disposition of the remains of Decedent. 17. Admitted with clarification. The only pleading filed has been Objector's Objections. 18. Admitted with clarification. No discovery has been conducted. 19. Admitted with clarification. Rule 3.1 provides as was stated in this averment unless otherwise provided by a rule. 20. Denied. The averments of paragraph twenty of Movant's motion constitute a conclusion of law to which no response is required. To the extent,however, that a response may be required, these averments are denied as stated. 21. Denied. The averments of paragraph twenty-one of Movant's motion constitute a conclusion of law to which no response is required. To the extent,however, that a response may be required,Movant is not entitled to judgment as a matter of law as Objector's claim is for expenses related to funeral arrangements that she was authorized to arrange in her sole discretion pursuant to 20 Pa.C.S. � 305 and Movant has the duty to pay those expenses as they are priority claims pursuant to 20 Pa.C.S. § 3392. 22. Denied. The averments of paragraph twenty-two of Movant's motion constitute a conclusion of law to which no response is required. To the extent,however, that a response may be required, these averments are denied as stated. 23. The Objections speak for themselves. 24. Denied. By way of further response,pursuant to Paragraph 3 of the Will,Decedent explicitly failed to provide for his daughter but did not state any reasons for such provision. 25. Denied. The averments of paragraph twenty-five of Movant's motion constitute a conclusion of law to which no response is required. To the extent, however, that a response may be required, these averments are denied as Objector did have the authority over the disposition of Decedent's remains pursuant to 20 Pa.C.S. � 305. 26. The statute speaks for itself. 27. Denied. The averments of paragraph twenty-seven of Movant's motion constitute a conclusion of law to which no response is required. To the extent,however, that a response may be required, Objector does have the sole authority in all matters pertaining to disposition of the decedent's remains. 28. Denied. The averments of paragraph twenty-eight of Movant's motion constitute a conclusion of law to which no response is required. To the extent, however, that a response may be required, clear and convincing evidence of enduring estrangement or contrary intent has not been presented. 29. The statute speaks for itself. 30. The statute speaks for itself. 31. Admitted. 32. Denied. The averments of paragraph thirty-two of Movant's motion constitute a conclusion of law to which no response is required. To the extent,however, that a response may be required, these averments are denied as stated. 33. Denied. The averments of paragraph thirty-three of Movant's motion constitute a conclusion of law to which no response is required. To the extent, however, that a response may be required,it is denied that Objector was expressly disinherited or that the decedent's failure to . provide for Objector without any reasons being stated is an expression of contrary intent let alone . clear and convincing evidence of contrary intent. 34. Denied. The averments of paragraph thirty-four of Movant's motion constitute a conclusion of law to which no response is required. To the extent,however, that a response may be required,it is denied that Paragraph 3 of the Will is clear and convincing evidence of enduring estrangement. 35. Denied. The averments of paragraph thirty-five of Movant's motion constitute a conclusion of law to which no response is required. To the extent, however, that a response may be required,it is denied that Objector did not have the authority over Decedent's remains or that Objector was required to provide notice, seek participation, or obtain consent from Movant prior to incurring the expenses. 36. Denied. The averments of paragraph thirty-six of Movant's motion constitute a conclusion of law to which no response is required. To the extent,however, that a response may be required,it is denied that Decedent disinherited Objector and that the Decedent made no revocation. 37. Denied. The averments of paragraph thirty-seven of Movant's motion constitute a conclusion of law to which no response is required. To the extent,however, that a response may be required,it is denied that Objector did not have the authority to make disposition and that she should not be reimbursed for the expenses for which she unilaterally contracted. 38. Denied. The averments of paragraph thirty-eight of Movant's motion constitute a conclusion of law to which no response is required. To the extent, however, that a response may be required,it is denied that Movant is not required to reimburse Objector for the expenses. WHEREFORE, Objector respectfully requests this Honorable Court decline to consider Movant's Motion for Partial Summary Judgment due to its premature filing or deny Movant's Motion based on Movant's waiver of any challenge to Objector's authority to dispose of the decedent's remains or,in the alternative,based on the existence of genuine issues of material fact. NEW MATTER 39. The response to paragraphs 1-38 above are incorporated herein by reference. 40. The decedent's Will (Movant's Exhibit B) provides in Paragraph 1 that the decedent's "funeral expenses...shall be paid from my residuary estate as soon as practicable after my decease and as part of the administration of my estate." 41. The decedent's Will (Movant's Exhibit B) does not otherwise provide or direct disposition of the decedent's remains by an individual other than the next of kin. 42. Patricia Bowser, the decedent's daughter,is the next of kin. 43. Section 305(c) of the Probate,Estates and Fiduciaries Code provides that"[i]f there is not a surviving spouse, absent an allegation of enduring estrangement,incompetence, contrary intent or waiver and agreement which is proven by clear and convincing evidence, the next of kin shall have sole authority in all matters pertaining to the disposition of the remains of the decedent." 20 Pa.C.S. § 305(c). 44. Section 305(d) of the Probate, Estates and Fiduciaries Code provides the procedure to follow where a claim of enduring estrangement,incompetence, contrary intent or waiver and agreement shall be raised by petition within forty-eight (48) hours of the decedent's death. 20 Pa.C.S. § 305(d). 45. Movant failed to file a petition pursuant to 20 Pa.C.S. 5 305(d) within 48 hours of the decedent's death. 46. Movant has waived any challenge to the objector's authority to dispose of the decedent's remains for failure to file a petition pursuant to 20 Pa.C.S. § 305(d) within 48 hours of the decedent's death. 47. Despite being contacted by Parthemore Funeral Home prior to the cremation, Movant allowed the cremation to proceed without filing a petition to seek to prevent the cremation or other disposition of the decedent by Objector prior to the disposition occurring. The decedent's remains were disposed of by Objector and now the only matter that remains is Movant's duty to pay the priority claim by reimbursing Objector for her costs pursuant to 20 Pa.C.S. § 3392. 48. Objector filed her objections seeking reimbursement from the Estate for funeral and other expenses,among other requested relief, on February 12,2014. 49. Movant failed to file an Answer to the Objections. 50. Movant failed to raise any possible defense in an Answer to the Objections that she now seeks to raise at this late date in her Motion for Partial Summary Judgment. 51. Movant has waived any challenge to the objector's authority to dispose of die decedent's remains for failure to assert any such defense in an Answer to Objections. 52. Pursuant to 20 Pa.C.S. § 3392, the Executrix has the duty to pay priority claims,the third priority of which are the decedent's funeral expenses,preceded only by the costs of administration and the family exemption. 53. Movant's Motion for Partial Summary Judgment filed on March 18, 2015,less than two (2)weeks prior to the Hearing on Objections scheduled for March 30, 2015,more than eighteen (18) months after Objector filed her Notices of Claim, and more than thirteen (13) months after Objector filed her Objections seeking reimbursement from the Estate on February 12, 2014,was untimely filed and has resulted in an unreasonable delay of trial. 54. Even were Movant's claims not waived and the Motion for Partial Summary Judgment timely filed,Movant would be required to prove her claims by clear and convincing evidence pursuant to 20 Pa.C.S. 5 305. 55. If Movant's claims have not been waived, a hearing would be necessary for Movant to attempt to prove her claims by clear and convincing evidence and Objector would have the opportunity to present testimony and/or evidence in opposition to the claims. 56. Genuine issues of material fact exist. 57. Evidence of enduring estrangement is a material fact in dispute. 58. Evidence of contrary intent is a material fact in dispute. 59. . Suminary judgment is not appropriate where genuine issues of material fact exist. 60. The grant of summary judgment is only proper where the record consisting of pleadings, depositions, answers to interrogatories, admissions, affidavits, and signed expert reports show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Pa.R.C.P. 1035.1, 1035.2. 61. The only pleadings filed were the Objections filed by Objector. 62. There have been no depositions, answers to interrogatories, admissions, affidavits, or signed expert reports. 63. The only record to review in deciding Movant's Motion,if Movant's Motion is to be considered by die Court at this time, consists of the objector's Objections. 64. In reviewing the Motion, the record is reviewed in the light most favorable to the nonmoving party. Fern v. Ussler, 630 A.2d 896 (Pa.Super. 1993). 65. Pursuant to Pa.R.C.P. 1035.3(e), Objector must be given a full and fair opportunity to supplement the record and oppose the motion. WHEREFORE, Objector respectfully requests this Honorable Court decline to consider Movant's Motion for Partial Summary judgment due to its premature filing or deny Movant's Motion based on Movant's waiver of any challenge to Objector's authority to dispose of the decedent's remains or,in the alternative, based on the existence of genuine issues of material fact. Respectfully submitted, WOLF &WOLF April K.2015 BY: STACYOLF1 Esquire 10 West h Street 09t Carlisle, PA 17013 (717) 241-4436 Supreme Court I.D. No. 88732 Attorney for Patricia A. Bowser IN RE: ESTATE OF : IN THE COURT OF COMMON PLEAS OF ERNEST H. BLAKE : CUMBERLAND COUNTY, PENNSYLVANIA : ORPHANS' COURT DIVISION : NO. 21-2012-0088 CIVIL TERM CERTIFICATE OF SERVICE I, Stacy B. Wolf, Esquire, attorney for Patricia A. Bowser, do hereby certify this day that I served a copy of the foregoing Objector's Response to Motion for Partial Summary Judgment With New Matter upon the following by first class mail,postage prepaid, addressed as follows: Seth Mosebey, Esquire Martson Law Offices 10 E. High Street Carlisle, PA 17013 April / 2015 Stacy B. f, Esquire Attorney Patricia A. Bowser i STACY B.WOLF,ESQUIRE 10 WEST HIGH STREET CARLISLE,PA 17013-2922 (717)241-4436 SUPREME COURT I.D.No.88732 ATTORNEY FOR PATRICIA A.BOWSER IN RE: ESTATE OF : IN THE COURT OF COMMON PLEAS OF ERNEST H. BLAKE : CUMBERLAND COUNTY, PENNSYLVANIA : ORPHANS' COURT DIVISION : NO. 21-2012-0088 CIVIL TERM NOTICE TO PLEAD To: Pamela Vazquez, Executrix YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. Respectfully submitted, WOLF &WOLF April AP / 2015 A � STACY B. W(ILF, ESQUIRE