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Home My WebLink About07-13-05 Joanne E. Book, Esquire Attorney 1.D. No. 82028 Heather Zink Kelly Attorney 1.D. No. 86291 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for PNC Bank, N.A. ReORDED OFFiCE OF r.;::"".c:TE.~J tv:: \!~r,\ 1 ~ ht..J;J! il....1 ',..l...,\,i znos JUL 13 PH 4: 04 CLERK OF ORPHAN'S COURT CUMBERVND CO. F,\ INRE: MILDRED J. GERBER TRUST UNDER AGREEMENT DATED DECEMBER 19, 1997 : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : ORPHANS' COURT DIVISION : NO. 21-2002-0540 IN RE: FRED E. GERBER TRUST UNDER AGREEMENT, dated July 29, 1994 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY COMMONWEALTH OF PENNSYLVANIA ORPHANS' COURT DIVISION NO. 21-1998-0195 ANSWER AND NEW MATTER OF PNC BANK. N.A.. TO THE FOLLOWING PETITIONS OF MARILYN J. GERBER: PETITION FOR THE EMERGENCY REMOVAL OF FREDERICK E. GERBER, II AS TRUSTEE OF THE FRED E. GERBER, SR. TRUST, AND EXECUTOR OF THE MILDRED J. GERBER ESTATE AND PETITION TO FREEZE THE ASSETS OF THE MILDRED J. GERBER TRUST AND THE FRED E. GERBER, SR. TRUST, THE MILDRED J. GERBER ESTATE PETITION TO APPOINT AN IMPARTIAL INDEPENDENT FORENSIC CPA ACCOUNTANT TO MAKE A COMPLETE REPORT OF THE ACCOUNTING OF THE ABOVE STATED TRUSTS PETITION TO DENY PNC BANK'S REQUEST OF RESIGNATION AND IMPOSE UPON THEM THEIR FIDUCIARY RESPONSIBILITY TO ARGUE THEIR OBJECTIONS ON THE ABOVE STATED TRUSTS AS THEY FILED THEM IN AUGUST 2002 PETITION IN THE EVENT OF THIS COURT'S DENIAL TO REMOVE FREDERICK E. GERBER, II, A REQUEST FOR A COMPLETE MEDICAL PSYCHIATRIC EVALUATION OF FREDERICK E. GERBER, II FOR COMPETENCE TO ACT AS AN EXECUTOR AND TRUSTEE 5l68t9.J NOW COMES, PNC Bank, N.A. (hereinafter "PNC"), Trustee of the Mildred J. Gerber Trust under Agreement dated December 19, 1997, by and through counsel, Rhoads & Sinon LLP, and files this Answer and New Matter to the above Petitions of Marilyn Gerber, as follows: I. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Denied. PNC is without sufficient information to form a responsive pleading to the allegations contained in Paragraph 7. The same are therefore denied. 8. Denied. PNC is without sufficient information to form a responsive pleading to the allegations contained in Paragraph 8. The same are therefore denied. 9. Denied. PNC is without sufficient information to form a responsive pleading to the allegations contained in Paragraph 9. The same are therefore denied. 10. Denied. PNC is without sufficient information to form a responsive pleading to the allegations contained in Paragraph 10. The same are therefore denied. II. Denied. Paragraph 11 violates Pa. R. Civ. P. 206.l(c) in that in contains more than one material allegation. It is not possible for PNC to form a responsive pleading to the numerous allegations contained in Paragraph 11. The same are therefore denied. 12. Admitted. 13. Admitted. 14. Denied. -2 - 15. Denied. 16. Denied. 17. Denied. 18. The allegations of Paragraph 18 constitute legal conclusions to which no response is required. To the extent a response is deemed appropriate, the same are denied. 19. The allegations of Paragraph 19 constitute legal conclusions to which no response is required. To the extent a response is deemed appropriate, the same are denied. 20. Admitted. 21. Admitted. 22. Admitted in part and denied in part. It is admitted that PNC was not surcharged and in fact PNC's Accounts of the Guardianship Estate of Mildred J. Gerber and the Trust of Mildred J. Gerber were approved in their entirety. The remaining allegations of Paragraph 22 are denied. 23. Admitted in part and denied in part. It is admitted that PNC has filed additional Accounts of the Guardianship Estate of Mildred J. Gerber and the Trust of Mildred J. Gerber. The remaining allegations of Paragraph 23 are denied. 24. Denied. 25. Denied. Paragraph 25 violates Pa. R. Civ. P. 206.I(c) in that in contains more than one material allegation. It is not possible for PNC to form a responsive pleading to the numerous allegations contained in Paragraph 25. The same are therefore denied. 26. Denied. Paragraph 26 violates Pa. R. Civ. P. 206.1(c) in that in contains more than one material allegation. It is not possible for PNC to form a responsive pleading to the numerous allegations contained in Paragraph 26. The same are therefore denied. - 3- 27. Denied. Paragraph 27 violates Pa. R Civ. P. 206.1(c) in that in contains more than one material allegation. It is not possible for PNC to form a responsive pleading to the numerous allegations contained in Paragraph 27. The same are therefore denied. 28. Denied. Paragraph 28 violates Pa. R Civ. P. 206.1(c) in that in contains more than one material allegation. It is not possible for PNC to form a responsive pleading to the numerous allegations contained in Paragraph 28. The same are therefore denied. 29. Admitted. 30. Admitted in part and denied in part. It is admitted effective upon the confirmation of its Second and Final Account of the Mildred J. Gerber Trust, that PNC resigned as Trustee in accordance with Paragraph 13 of the Trust and appointed Colonel Fred E. Gerber, II, as Successor Trustee in accordance with Paragraph l4(b) of the Trust. The remaining allegations of Paragraph 30 are denied. 31. Denied. Paragraph 31 violates Pa. R. Civ. P. 206.1(c) in that in contains more than one material allegation. It is not possible for PNC to form a responsive pleading to the numerous allegations contained in Paragraph 31. The same are therefore denied. 32. Denied. Paragraph 32 violates Pa. R. Civ. P. 206.1(c) in that in contains more than one material allegation. It is not possible for PNC to form a responsive pleading to the numerous allegations contained in Paragraph 32. The same are therefore denied. 33. Denied. 34. Denied. 35. Denied. -4- 36. Denied. Paragraph 36 violates Pa. R. Civ. P. 206.I(c) in that in contains more than one material allegation. It is not possible for PNC to form a responsive pleading to the numerous allegations contained in Paragraph 36. The same are therefore denied. 37. Denied. Paragraph 37 violates Pa. R. Civ. P. 206.I(c) in that in contains more than one material allegation. It is not possible for PNC to form a responsive pleading to the numerous allegations contained in Paragraph 37. The same are therefore denied. 38. The allegations of Paragraph 38 constitute legal conclusions to which no response is required. To the extent a response is deemed appropriate, the same are denied. 39. The allegations of Paragraph 39 constitute legal conclusions to which no response is required. To the extent a response is deemed appropriate, the same are denied. NEW MATTER 40. The Petition filed by Marilyn J. Gerber ("Ms. Gerber'') fails in numerous respects to comply with the Pennsylvania Rules of Civil Procedure and as such should be dismissed. 41. Ms. Gerber has filed substantially similar Petitions in the past which have been dismissed by this Court, and requested similar relief which has not been granted by this Court. 42. Ms. Gerber's claims are barred by res judicata and/or collateral estoppel. 43. Ms. Gerber's claims are barred by laches. 44. Ms. Gerber has failed to state a claim upon which relief can be granted. 45. Ms. Gerber's claims are barred, in whole or in part, by the doctrines of waiver and/or estoppel. 46. Ms. Gerber's claims are barred, in whole or in part, by the doctrine of unclean hands. 47. Ms. Gerber's damages, if any, are caused by her failure to mitigate. -5 - 48. In the event that Ms. Gerber has suffered damages or loss, which is denied, such damages or loss were caused, in whole or in part, by the actions of Ms. Gerber. 49. In the event that Ms. Gerber has suffered damages or loss, which is denied, such damages or loss were caused, in whole or in part, by the acts of third parties, over whom PNC had no control. WHEREFORE, PNC Bank, N.A., respectfully requests that this Court deny the Petition of Marilyn J. Gerber in its entirety. Respectfully submitted, RHOADS & SINON LLP By: e E. Book ather Zink Kelly e South Market Square P. O. Box 1146 Harrisburg, P A 171 08-1146 (717) 233-5731 Attorneys for PNC BANK, N.A. - 6- -JUL-13-2005 08'12 PNC BANK 717 730 2254 P.02/02 VERIFICATION David A. Brown, deposes and says, subject to the penalties of 18 Pa. C.S. ~4904 relating to unsworn falsification to authnrities, that he is the Vice President of PNC Bank, N.A., that he makes this verification by its authority and that the facts set forth in the forgoing Answer and New Matter of PNC Bank, N.A. are true and correct to the best of his knowledge, information and belief. h /2-1 2-dcJ~ ~ David A. Brown Date TOTAL P.02 CERTIFICATE OF SERVICE I hereby certify that on July 13, 2005, a true and correct copy of the Answer and New Matter ofPNC Bank, N.A. served by U.S. mail, certified, return receipt requested, upon the following: Marilyn J. Gerber 717 Market Street, #317 Lemoyne, PA 17043 and by U.s. mail, first class, postage pre-paid, upon the following: Jacqueline M. Verney, Esquire 44 S. Hanover Street Carlisle, PA 17013 Richard C. Rupp, Esquire Rupp and Meikle 335 North 21st Street, Suite 205 Camp HilI, PA 17011 William A. Duncan, Esquire Duncan, Hartman & Douglas, P.c. One Irvine Row Carlisle, P A 17013 ~t. ~~.o ~ fharmon Whitson 516513.1