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HomeMy WebLinkAbout05-04-05 IN RE: MILDRED J. GERBER, : IN THE COURT OF COMMON PLEAS ESTATE : CUMBERLAND COUNTY : COMMONWEALTH OF PENNSYLVANIA : ORPHANS' COURT DIVISION : NO. 21-2001-0092 NOTICE TO PLEAD TO: MARILYN J. GERBER, PRO SE You are hereby notified to file a written response to the enclosed RESPONDENT'S NEW MATTER within twenty (20) days form service hereof or a iudgment may be entered against you. Date: b J b~ 1)( I chard C. R P RUPP and MEIKLE Attorney I.D. No.: 34832 355 North 21 st Street, Suite 205 Camp Hill, PA 17011 (717) 761-3459 Attorney for Respondent IN RE: MILDRED J. GERBER ESTATE : IN THE COURT OF COMMON PLEAS : OF : CUMBERLAND COUNTY, PENNSYLVANIA :COMMONWEALTH OF PENNSYLVANIA : ORPHANS' COURT DIVISION : NO. 21-2002-0540 (;::) ........." _ ANSWER OF NEW MATTER OF FREDERICK E. GERBER. II TO PETITION TO COMM}{ND PNC BANK TO RELEASE THE PERSONAL TANGIBLE PROPERTY OF MARIL Ytl:GERBER (-,,....,~ NOW COMES, FREDERICK E. GERBER, II, Executor of the Estate of Mildred J. Gerber by and through his counsel Rupp and Meikle and Richard C. Esquire and files this answer a new matter to the petition of Marilyn Gerber to command PNC Bank to release the personal tangible property of Marilyn Gerber, as follows: 1. Denied as stated. It is admitted that Marilyn Gerber is the eldest daughter and child of the decedent Mildred J. Gerber. It is denied that Marilyn Gerber is a potential beneficiary of the Estate of Mildred J. Gerber who died on January 14,2003. To the contrary, Mildred J. Gerber's Will provides that all her tangible personal property is to be civilly given and bequeathed to her only son Frederick E. Gerber, II as the remainder beneficiary of her Will is her trust, known as the Mildred J. Gerber Revokable Trust. 2. Denied as Frederick E. Gerber is without sufficient information to form a response pleading on the allegations contained in paragraph number 2 and therefore denied and strick proof of trial is demanded. By way of further answer, it is beleived by the respondant that Marilyn J. Gerber had a primary residence and address in San Fransisco which she was renting as her primary residence and receiving the benefits of the San Fransisco rent rebate statued since her San Fransisco residence was her primary residence. Further, it is believed that the petitioner Marilyn Gerber purchased another residence in Lower Allen Twp. 3. Denied. It is denied that Frederick E. Gerber, II prevented Marilyn Gerber from entering and living in the family home on his own. To the contrary, the parties' mother, Mildred J. Gerber requested her son Frederick E. Gerber, II to prevent Marilyn Gerber from entering and living in her home and contacting her which Fred Gerber did on behalf on his mother, not himself. By way of further answer, Marilyn J. Gerber was arrested by the New Cumberland Borough Police and was charged with criminal trespass and criminal harassment. It is believed that District Judge Placey directed the New Cumberland Borough Police to cause Marilyn Gerber's incarceration. Upon Marilyn Gerber's providing bail Marilyn Gerber fled to San Fransisco in violation of her bail terms apparently not wanting to stand for trial on the criminal charges which have been brought against her. Marilyn Gerber was out of the Cumberland County, Pennsylvania area for a period over one year on her own tuition rather than Frederick E. Gerber, II tuition. It is also denied that this is the family home. To the contrary, although family were raised here and lived here upon Frederick E. Gerber Sr. death it was the home of Mildred J. Gerber as Mildred J. Gerber was a ioint spousal owner of the house and she seized in possession and fee simple ownership by reason of her husband's death. It is denied that Frederick E. Gerber, II and their sister, Jane Hefflin came to the family home and "hostage control" of their mother. To the contrary, Frederick E. Gerber, II and his sister Jane Hefflin being very concerned for their mother Mildred J. Gerber returned to Mildred J. Gerber's home to assist her in whatever way was needed as Frederick E. Gerber, II had been advised by PNC Bank that Mildred J. Gerber's PNC Bank Accounts have been completely emptied. Frederick E. Gerber, II is without sufficient information to form a belief as to the truth about the remaining averments remaining and therefore they are denied in strict proof for trial is demanded. 4. Admitted in part. Denied in part. It is admitted that PNC was appointed Guardian of the Estate of Mildred J. Gerber on March 22, 2001. It is denied that PNC performed a minimal inventory of the tangible personal property of Mildred J. Gerber in June of 2001. It is denied that Marilyn Gerber had informed PNC Bank April 2001 that Marilyn Gerber has significant personal property in her mothers home and the family home. To the contrary, it is believed that Marilyn Gerber made very vague and non- specific and non-substancated claims to PNC Bank that Marilyn Gerber had personal property that belonged to her in the home of their mother, Mildred J. Gerber. Therefore the remaining averments of paragraph 4 are denied as stated. To the contrary, by the way of further answer, it is believed that PNC property inventoried all the tangible personal property of Mildred J. Gerber which was appraised by Claude C. Wolfe and Associates. 5. Denied. It is denied that Marilyn Gerber has her furniture, clothing, kitchen supplies, accessories, personal mementoes, design equipment, and the inheritance from her Aunt Florence Gerber Cappy to the home of Mildred J. Gerber. To the contrary, when Fred Gerber began to regularly visit his mother to take care of her and help her with her check book and paying her bills he did not see any property he did not recognize as not belonging to his mother, Mildred J. Gerber. To the contrary, when Frederick E. Gerber, II drove to his mothers residence, 623 Hilltop Drive, New Cumberland, PA, his inspection of his mothers' home in 2001 did not reveal any property belonging to his sister, Marilyn Gerber. By way of further answer it actually appeared that property belonged to his parents had been removed from his mothers residence which he believes was removed by his sister, Marilyn Gerber. Further, his sister, Marilyn Gerber, testified in open court before the Honorable Edgar Bailey that she had removed property from her mothers residence at 623 Hilltop Drive, New Cumberland, PA. 6. Admitted in part denied in part. It is admitted that Marilyn Gerber filed an answer to this Honorable Courts Order Petition submitted by Frederick E. Gerber, II why PNC should not be given the right to distribute the tangible personal property of Mildred J. Gerber to the Estate of Mildred J. Gerber at this time. Marilyn Gerber filed her answer January 2005. It is denied that her answer was answering PNC's petition for approval for advance distribution of tangible personal property. To the contrary, PNC filed a petition for approval advance distribution of tangible personal property on or about April 28, 2004 which Marilyn Gerber previously answered on or about May 6, 2004 with no proceeding ever held nor any order entered finally disposing of PNC's petition. 7. Denied. As Frederick E. Gerber, II is without sufficient information or knowledge to know what Marilyn Gerber believes said averment is denied and strict proof for trial is demanded. By way of further answer, it is denied that Frederick E. Gerber, II and Jane Hefflin removed significant amounts of personal property belonging to Marilyn Gerber. To the contrary, Frederick E. Gerber, II and Jane Hefflin have not removed any personal property they know to belong to Marilyn Gerber. It is denied that Frederick E. Gerber, II and Jane Hefflin remove significant amounts of personal property belonging to Mildred J. Gerber at any time. Frederick E. Gerber, II and Jane Hefflin removed some property belonging to their mother, Mildred J. Gerber, which was required for Mildred J. Gerber's move to Chicago when she went to live with her daughter Jane Hefflin. 8. Denied as stated. To the contrary, Frederick E. Gerber, II believes the tangible personal property in the home of Mildred J. Gerber on or merely proceeding October 1,2002 belonged to his mother, Mildred J. Gerber. It is believed that said tangible personal property remaining in the home of Mildred J. Gerber belonged to Mildred J. Gerber and was appraised by Claude Wolfe and Associate on behalf of PNC Bank and that the instruction of PNC Bank. It is believed that all the tangible personal property which belonged to Mildred J. Gerber it had been appraised and was present in the home of Mildred J. Gerber immediately proceeding October 1, 2002 was removed by PNC Bank to Harrisburg Storage on or about October 1, 2002 in order to allow PNC Bank to sell the Real Estate of Mildred J. Gerber. 9. Denied. As Frederick E. Gerber, II is without sufficient belief or knowledge as to Marilyn Gerber's state of mind, what she believes, or afraid of is denied and a strict proof for trial is demanded if relevant. Marilyn Gerber's averment that anyone stands to be surcharged by this Honorable Court is a legal conclusion to which no answer is required. Further, the petition or averment is confusing implying only Mildred J. Gerber's property has been moved to Harrisburg Storage on October 1, 2002 and that Marilyn Gerber's property is not at Harrisburg Storage apparently as she claims it is missing. It is denied that PNC is aware that property has been thrown out by Frederick E. Gerber, II and Jane Hefflin. To the contrary, Frederick E. Gerber, II is without sufficient knowledge for information as to what PNC Bank is aware of and therefore, petition of averments are denied and strict proof for trial is demanded if relevant. It is denied that Frederick E. Gerber, II or his sister Jane Hefflin have thrown out any property of Mildred J. Gerber that still had any use or value to their mother. As stated above, it is admitted that Frederick E. Gerber, II and Jane Hefflin took some personal tangible property of Mildred J. Gerber for the use and benefit of Mildred J. Gerber, their mother. It is denied that Frederick E. Gerber and Jane Hefflin as stated above took any of Marilyn Gerber's tangible personal property. 10. Denied. Although petitioners averments in paragraph number 10 are actually request to this Honorable Court rather than any averment. Paragraph 10's revisions are denied if they are averments by Frederick E. Gerber, II. To the contrary, the items in Harrisburg Storage being stored by PNC as Guardian of the Estate of Mildred J. Gerber have already been cataloged and have already been appraised by Claude Wolfe and Associates said appraisal of said tangible personal property was attached to PNC Bank Account which was filed by PNC Bank with the clerk of The Orphans Court. Marilyn Gerber has never made a formal request until this petition despite knowing that personal property had been removed from Mildred J. Gerber's residence on October 1, 2002, knowing Mildred J. Gerber died on January 14, 2003 knowing that PNC Bank filed this account knowing that 2 days hearing were held in front of Auditor Duncan at the end of September 2004 on PNC Accounts and Marilyn Gerber not made any formal request for any such tangible personal property she now ledges until now in her petition filed before this Honorable Court. 11. Denied. As Frederick E. Gerber, II is without sufficient knowledge or information to form a belief as the truth her averments they are denied and strict proof for trial is demanded if relevant. By way of further answer during the hearings for appointment of a Guardian of the Estate starting in January 2001 with the Honorable Edger Bailey appointing PNC Bank Guardian of Mildred J. Gerber's Estate on March 22, 2001. During such hearings, Marilyn Gerber in open court never testified she was living without her personal furniture, her personal property, or anything about being deprived of her living standards, or her design equipment. WHEREFORE, the respondent, Frederick E. Gerber, II request this Honorable Court to dismiss Marilyn Gerber's Petition to command PNC Bank to release the Personal Tangible Property of Marilyn Gerber with preiudice and to award the respondent Frederick E. Gerber, II Attorney fees as fully more said forth in Frederick E. Gerber's New Matter. NEW MATTER 13. On October 24, 2003, PNC filed an accounting of its administration of the Guardianship Estate since the time that PNC was appointed Guardian on March 22, 2001 (the "Guardianship Account"). The Guardianship Account states transactions from March 23,2001 through October 20,2003. 14. The Guardianship Account included all transactions relating to the tangible personal property of Mildred J. Gerber. 15. On or about November 21, 2003, Marilyn J. Gerber ("Ms. Gerber") filed Obiections to the Guardianship Account (the "Obiections"). 16. By Order dated November 25, 2003, this Court appointed William Duncan, Esquire as Auditor in to hear the Obiections filed by Ms. Gerber to the Guardianship Account. 17. On or about December 15, 2003, PNC filed an Answer to Ms. Gerber's Obiections to the Guardianship Account. 18. By Order dated July 8, 2004, this Court continued the appointment of the Auditor until January 31, 2005 with regard to the Guardianship Account. 19. A Hearing was held with regard to Ms. Gerber's Obiections to the Guardianship Account on September 28-29, 2004. 20. By Stipulation of the parties filed September 27, 2004, it was agreed that as to the Guardianship Account, the scope of the Hearing which was to be held September 28-29, 2004 was to include the various matters including the administration of the Guardianship Estate by PNC, the scope of the relevant time period would be limited to March 23,2001 to October 20, 2003, and the subiect matter of the Hearing would be limited to those matters which were relevant to the Obiections raised by Ms. Gerber and PNC's defense of those Obiections, which included PNC's alleged mismanagement of assets, including tangible personal property. 21. By Order dated December 7, 2004, this Court continued the appointment of the Auditor until March 31, 2005. 22. At no time during the Hearing held September 28-29, 2004, or at anytime during the proceedings in the above matter, has Ms. Gerber presented any evidence to document her claims of ownership of any of the tangible personal property. 23. At no time during the Hearing held September 28-29, 2004, or at any time during the proceedings in the above matter, has Marilyn Gerber presented any evidence or basis to surcharge PNC for any of its actions relating to the tangible personal property. 24. Ms. Gerber was provided a full and complete opportunity to raise all issues with regard to the tangible personal property at the Hearing held on September 27-28, 2004. 25. Ms. Gerber's claims are barred by res iudicata and/or collateral estoppel, 26. Despite numerous requests and opportunities, Ms. Gerber has failed to provide PNC with a list or any documentation that any of the tangible personal property that was in the home of Mildred J. Gerber was the property of Ms. Gerber. 27. Ms. Gerber's claims are barred by laches. 28. On February 6, 2003, the Will of Mildred J. Gerber was admitted to probate by the Register of Wills for Cumberland County and her son, Frederick E. Gerber, II (the "Executor") was awarded Letters Testamentary pursuant to ITEM V of her Will. 29. Mildred J. Gerber specifically bequeathed her tangible personal property to her son and Executor, Frederick E. Gerber, II in ITEM II of her Will, with the stated expectation that he would honor any written instructions with regard to the property, and that any property not distributed to him would be sold and the proceeds pass to her residuary estate. 30. Should Ms. Gerber wish to make a claim for any of the tangible personal property allegedly belonging to her, the transfer of said property to the Executor in accordance with the Will does not prevent her from doing so, as she may proceed with any such claim after the transfer is made. 31. Ms. Gerber has failed to state a claim upon which relief can be granted. 32. Ms. Gerber's claims are barred, in whole or part, by the doctrine of waiver and/or estoppel. 33. Ms. Gerber's claims are barred, in whole or part, by the doctrine of unclean hands. 34. Ms. Gerber's damages, if any, are caused by her failure to mitigate. 35. In the event that Ms. Gerber has suffered damages or loss, which is denied, such damages or loss were caused, in whole or part, by the acts of third parties, over whom PNC had no control. WHEREFORE, PNC Bank, N.A., respectfully request that this Court deny the Petition to Command PNC Bank to Release the Personal Tangible Property of Marilyn Gerber, and order the distribution of such assets to the Estate of Mildred J. Gerber upon confirmation of the Guardianship Account of PNC Bank, N.A., by the Auditor in this matter. Respectfully submitted, RUPP A By: Ric ard C. Rupp RUPP AND MEIKLE 355 N. 21sT Suite 205 Camp Hill, PA 17011 (717) 761-3459 Attorneys for Frederick E. Gerber, Executor of Estate VERIFICATION I, Richard C. Rupp, Esq. am making this verification as the Petitioner is out of the Court's Jurisdiction and is unavailable in time to file this pleading and verify that the statements in the foregoing document are true and correct to the best of my knowledge, information and belief. Said statements are based on my own knowledge, belief or information or information provided me. I understand that false statements herein are made subiect to penalties of 18 Pa. C.S.A. * 4904 relating to unsworn falsification to authorities. Date: fJ J/u If( () (' CERTIFICATE OF SERVICE I, Richard C. Rupp, Esquire, do hereby certify that I am serving a true and correct copy of the foregoing document upon the persons names below by placing the same in the United States Mail, First Class, Postage Prepaid, on the date stated below: William A. Duncan, Esquire 1 Irvine Row Carlisle, PA 17013 Marilyn Jo Gerber 717 Market Street Lemoyne, PA 17043 Joanne Book Christine, Esquire Rhoads & Sinon, LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 Jacqueline Verney, Esquire 44 South Hanover Street Carlisle, PA 17013 Richa C. Rupp, Esquire Attorney I.D. # 34832 355 North 21 sf Street, Suite 205 Camp Hill, Pennsylvania 17011 (717) 761-3459 Date: 06/ dl.{ /6 I