The URL can be used to link to this page

Home My WebLink About04-27-15 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA IN RE: : Orphans Court Division ESTATE OF E. JEANNE (HOGUE) RECHT, : � DECEASED : No. 21-13-0154 �., � � � rn : .,,, o� ..� �,,,� � • r.� --�, .�_ � � cn �► PETITIONER,JAN RECHT STOGSDILL'S ANSWER TO RI�SPOND��T�,.�N1��FE�, {-�'.-, MARGUSH'S NEW MATTF.R { = r" � '�� `=' _ . , . _ --� , _.. � .`�f ��i , ,...� � -�~r ., --3 ' AND NOW, this 22nd day of April, 2015, comes Jan Recht Stogsdill, Petitioner he,�in, �r� . . ._+ � U., o � and through her counsel, Kathleen Misturak-Gingrich, Esquire, and the Law Offices of�eter J. Russo, P.C., and files the following Answer to Respondent Jennifer Margush's New Matter, and in support avers as follows. NEW MATTER 9. Petitioner incorporates by reference, as if set forth in their entirety, the Exceptions filed with the Court on March 16, 2015. 10. Denied as a conclusion of law to which no response is required. By way of further Answer, this Will Contest lies exclusively within the jurisdiction of the Orphans' Court of Cumberland County. While the Court's Order was dated February 20, 2015 and time stamped on that same date by the Register of Wills and Clerk of Court, (hereafter, "Orphans'Court Clerk) ,the Order was not certified from the record or served on counsel of record and the other interested parties until February 23, 2015. 11. Denied as stated. Orphan's Court Rule 71(a), Exce�tions,provides that the "Gen- eral Rule" is that Exceptions may be filed within twenty (20) days after entry of an order, decree or adjudication. However, "entry" is not defined in the Rule and despite a due diligent search, counsel for Petitioner has not located any case law that specifies the operative date for calculating time when the date that the Order was time stamped by the Orphans' Court Clerk differs from the 1 � ,,�:�un i.i i,i �i.n.,n , � date when the Order was certified from the record and served on all counsel of record and other interested parties by the same Orphans' Court Clerk. However, in the event the Court determines that the time stamped date is the operative date for calculating time, it still has discretion to decide Petitioner's Exceptions on the merits and the interest of justice clearly suggests that it should do so. Orphans'Court Rule 2.l,Construction of Rules,specifically directs the Court that the Orphans' Court Rules "shall be liberally construed to serve the just, speedy atid inexpensive determination of every action or proceeding to which they are applicable. The Court at every sta�e of any action or proceeding maydisre arg d any error or defect of procedure wliich does not affect the substantial rights of the parties in interest." (Emphasis added.) Assuming arguendo that the date of"entry" of the Court Order at issue is determined to be February 20, 2015 (when the Order was time- stamped by the Orphans' Court Clerk), and not February 23, 2U 15, (when the Order was certified from the record by the Orphans' Court Clerk and actually served on the parties), the due date for Petitioner's Exceptions would have been March 12,2015. The EYceptions were filed on March 16, 2015. Respondent has not asserted in her New Matter that her substantial rights were affected or that she suffered prejudice of any sort by way of the mere fou7• {4) day delay. Since Respondent failed to plead any impacts upon her substantial rights or to allege any prejudice from the delay, Petitioner suggests because there are none, the interests of justice are best served by the Court "liberally construing" the applicable Orphans' Court Rule [7.1(a)] and "disregarding any error or defect of procedure..." to allow for"the just, speedy and inexpensive determination" of this Will Contest. In addition to the dictate of Orphans' Court Rule 2.1, the interest of justice allows the Court to exercise a portion of "the vast reservoirs of discretionary powers vested in the trial court...to rectify errors which would otherwise result in unfairness." Commonwealth u Powell, 527 Pa. 288, 590 A.2d 1240 (1991). The interest of justice is "deeply rooted in both federal juris- prudence and the common law of Pennsylvania".Id. Therefore. bot11 Orphans'Court Rule 2.1 and 2 �wurcrnirnn.-n � the interest of justice strongly suggest that Petitioner's Exceptions should be decided by the Court on their merits. 12. Denied as stated. By way of further Answer, the Order was dated February 20, 2015 and date stamped by the Orphans'Court Clerk on that same date,but it was not certified from the record by the Orphans' Court Clerk until February 23, 2015, nor was it served on counsel of record or other interested parties until February 23, 2015. By way of further Answer, Petitioner incorporates by reference, as if set forth fully herein, her Answers to Paragraphs 10 and 11, above. 13. Denied. By way of further Answer, Petitioner incorporates by reference, as if set forth fully herein, her Answers to Paragraphs 10-12, above. 14. Admitted that Petitioner's Exceptions were filed on March 16, 2015. By way of further Answer, Petitioner incorporates by reference, as if fully set forth herein, her Answers to Paragraphs 10-13, above. 15. Denied. The Court Order was dated February 20, 2015,but only certified from the record by the Clerk of Orphan's Court and served on counsel of record and other interested parties on February 23, 2015. Petitioner's Exceptions clearly defined the Order as the "February 23`d Order" on the basis that was date on which the Order was "entered", based upon Petitioner's counsel's reading of Orphans' Court Rule 7.1(a). By way of further Answer, Petitioner incorporates by reference as if fully set forth herein, her Answel•s to I'aragraphs 10-14, above. 16. Denied. By way of further Answer, Petitioner incorporates by reference, as if set forth fully herein, herAnswers to Paragraphs 10-15, above. WHEREFORE,for the reasons set forth above,this Honorable Court should determine that Petitioner's Exceptions were timely filed, or alternatively, if the Court determines that the Exceptions were not timely filed, the Court should liberally apply Orphans' Court Rule 2.1 in the interest of justice and disregard any error or defect of procedure to determine Petitioner's 3 ....a..l�I•,i..�..i.�i,I�..��,�„n. . p Exceptions on the merits as Respondent has failed to allege any itnpact upon her substantial rights or any prejudice by the four(4) day "delay" in the Exceptions. Respectfully submitted, THE LAW OPFICFS OF PETER J.RUSSO,P.C. Date: `-�- � 3-I5 gy: � ��(.�,..��''��,c.:;�,-�'�,�,�-�-''� Kathleen Misturak-Gingrich, Esquire Attorney I.D. No. 41682 5006 E. Trindle Road, Suite 203 Mechanicsburg, PA 17050 (717) 591-1755 Attorneys for the Petitioner 4 ��^�r orrr rni nn•.rr � IN THE COURT OF COMMON PLEAS OF CUMI3ERLAND COUNTY PENNSYLVANIA IN RE: : Orphans Court Division ESTATE OF E. JEANNE (HOGUE) RECHT, : DECEASED : No. 21-1�-0154 CERTIFICATE OF SERVIC� I, Melissa Mehaffey, Paralegal to Kathleen Misturak-Gingrich, Esquire,hereby certify that on this ��y of April, 2015, a true and correct copy of the foregoing document was hand delivered to the Court Administrator with a request that it be forwarded to the Honorable Thomas A. Placey. The Post-Trail Memorandum was also sent via First Class U.S. Mail, Postage Prepaid to Marc Roberts, Esquire, and the other intended recipients at the addresses listed below: Marc Roberts,Esquire LAW OFFICES OF MARC ROBERTS Joan R. Wolf 149 East Market Street 4ll Limesto��e Road York,Pennsylvania 17070 Carlisle, Pennsylvania 17015 (also sent via email) John M. Recht,.Ir. James Recht 5520 Dansby Place 45 Province Street Tallahassee, Florida 32311 Apt. 2703 Boston,MA 02108 Richard R. Reilly, Esq. 54 N. Duke Street Jane Recht York, PA l 7401 (also sent via email) 37 Randal Avenue West Hartford, Connecticut 06110 LAW OFFICI;S OF PETER J.RUSSO,P.C. _.....,ti DATE: �� "�,r...�� Melissa Mehafi-ey, 1 al 5