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Home My WebLink About07-14-05 Joanne E. Book, Esquire Attorney 1.0. No. 82028 Heather Zink Kelly Attorney I.O. 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. (") ~O co;g ,-,. CT1::r: '" , ....-}~.. .'- rn ~: ...:0 ,> (f) 7' ~~1 "00 t~-.lo-""n --c (,~ ::l:l ':;.l-I ......:. r--:> c::> c:>> c;.n L.. c:: I ""'tj ::ll: r:-? <.11 ~T~ :;:~~ ;'1", (J ~~,~~ ~? :"':~?l (~;J r-~-I r-n 'nO Cl --1', ." ("") i';-l:-\ ~,_.-.; (~:~ :- 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 ANSWER AND NEW MATTER OF PNC BANK. N.A.. TO MARILYN J. GERBER'S OBJECTIONS TO SECOND AND FINAL ACCOUNT OF TRUST NOW COMES, PNC Bank, N.A. (hereinafter "PNC"), Trustee of the Mildred J. Gerber Trust under Agreement dated December 19, 1997, as amended, revised and restated (the "Trust") by and through counsel, Rhoads & Sinon LLP, and files this Answer and New Matter to Marilyn J. Gerber's Objections to the Second and Final Account of Trust, as follows: 1. Admitted in part and denied in part. It is admitted that Marilyn J. Gerber ("Ms. Gerber") is the eldest child of Mildred J. Gerber who died on January 14, 2003. It is denied that Ms. Gerber is a full beneficiary ofthe Trust. 2. Denied. Mildred J. Gerber executed a Revocable Trust Agreement on December 19, 1997, revised and completely restated the Trust by Agreement dated August 2, 1999, and amended the Trust on January 25,2001. 3. Admitted. 4. Denied in part and admitted in part. It is admitted that Frederick E. Gerber II was removed as Trustee on October 3, 2001. PNC is without sufficient information to form a Sn6JB.1 if' responsive pleading to the remaining allegations contained in Paragraph 4 and the same are therefore denied. 5. Denied as stated. By way of further answer, PNC removed Frederick E. Gerber II as Trustee on October 3, 200l. 6. Denied as stated. 7. Denied. 8. Denied. Paragraph 8 does not clearly identify the "Account" to which Ms. Gerber refers and therefore the allegations of Paragraph 8 are denied. 9. Denied. PNC is no longer involved in the proceedings referenced in Paragraph 9, and therefore without sufficient information to form a responsive pleading to the allegations contained in Paragraph 9. The same are therefore denied. By way of further answer, PNC was substituted by Jacqueline Verney, Esquire, by Order ofthis Court dated June 27, 2003, to pursue the objections filed to the accountings filed by Frederick E. Gerber, II. 10. Denied. PNC is no longer involved in the proceedings referenced in Paragraph 10, and therefore without sufficient information to form a responsive pleading to the allegations contained in Paragraph 10. The same are therefore denied. By way of further answer, PNC was substituted by Jacqueline Verney, Esquire, by Order of this Court dated June 27, 2003, to pursue the objections filed to the accountings filed by Frederick E. Gerber, II. 11. Denied. By way of further answer, all transactions are reasonable, proper and fully disclosed in the Account, which supplies all information required by fiduciary accounting standards. - 2 - 12.1 Denied. By way of further answer, all transactions are reasonable, proper and fully disclosed in the Account, which supplies all information required by fiduciary accounting standards. Moreover, a fiduciary is entitled to reasonable legal fees to defend itself against meritless objections filed to its fiduciary account. 13. Denied. All matters relating to Frederick E. Gerber II's actions as Trustee of the Trust are the subject matter of separate proceedings to which PNC is no longer a party pursuant to Court order, and thus irrelevant. 14. Denied. By way of further answer, a fiduciary is entitled to reasonable legal fees to defend itself against meritless objections filed to its fiduciary account. IS. Denied. By way of further answer, a fiduciary is entitled to reasonable compensation for services rendered. 16. Denied. 17. Denied. By way of further answer, has repeatedly sought permission of this Court to distribute the tangible personal property to the Executor of the Mildred J. Gerber Estate for distribution pursuant to her Will. 18. Denied. 19. Denied. The note from Jane Heflin is an asset of the Guardianship Estate, not the Trust. 20. Denied. By way of further answer, a fiduciary is entitled to reasonable legal fees to defend itself against meritless actions filed against the fiduciary. 21. Denied. I The Objections are numbered 1-II(a)-(f) and following paragraph II(a)-(f) the numbered paragraphs repeat with 2-20. For clarity in answering the Objections, PNC will treat paragraphs 2-20 as if they are numbered 12-30. - 3 - 22. Denied. By way of further answer, all expenses for court reporters have been necessary and created by the Objections filed by Ms. Gerber. 23. Denied. 24. Denied. By way of further answer, all transactions are reasonable, proper and fully disclosed in the Account, which supplies all information required by fiduciary accounting standards. 25. Denied. By way of further answer, a fiduciary is entitled to reasonable legal fees to defend itself against meritless actions filed against the fiduciary. 26. Denied. By way of further answer, PNC is no longer a party to any proceedings relating to accountings filed by Frederick E. Gerber II. 27. Denied. 28. Denied. 29. Denied. 30. Denied. NEW MATTER 31. On October 24, 2003, PNC filed a First and Final Account of the Trust from October 3,2001 through October 20,2003. 32. Ms. Gerber filed Objections to the First and Final Trust Account and William Duncan, Esquire was appointed as Auditor. 33. A Hearing was held on the Objections to the First and Final Trust Account on September 28-29, 2004, before Auditor Duncan. -4- 34. On March 29, 2005, Auditor Duncan filed a report finding Ms. Gerber's Objections entirely without merit and recommending that the First and Final Account of the Trust be confirmed in its entirety. 35. On April 25, 2005, this Court confirmed the First and Final Account of the Trust in accordance with the Auditor's recommendation. 36. As with her Objections to the First and Final Account of the Trust, Ms. Gerber's claims are entirely without merit. 37. Ms. Gerber's Objections are barred by res judicata and/or collateral estoppel. . 36. Ms. Gerber has failed to state a claim upon which relief may be granted. 37. Ms. Gerber's claims are barred, in whole or in part, by the doctrine oflaches. 38. Ms. Gerber's claims are barred, in whole or in part, by the doctrines of waiver and/or estoppel. 39. Ms. Gerber's claims are barred, in whole or in part, by the doctrine of unclean hands. 40. Ms. Gerber's damages, if any, are caused by her failure to mitigate. 41. 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. 42. 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 dismiss Marilyn J. Gerber's Objections to the Second and Final Account of PNC Bank, N.A. as Trustee of the - 5 - Mildred J. Gerber Trust, and confirm said Account and the Statement of Proposed Distribution filed therewith. Respectfully submitted, RHOADS & SINON LLP By: r~~~ J anne E. Book eather Zink Kelly One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for PNC BANK, N.A. - 6- JUL-13-2005 15:55 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 authorities, 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 Answer and New Matter ofPNC Bank. N.A. to Marilyn J. Gerber's Objections to the Second and Final Account of Trost are true and correct to the best ofms knowledge, information and belief. 1/'3/0S ~ Da{;id 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. to Marilyn J. Gerber's Objections to the Second and Final Account of Trust was served by U.S. mail, certified, return receipt requested, upon the following: Marilyn J. Gerber 717 Market Street, #317 Lemoyne, P A 17043 and by U.S. mail, first class, postage pre-paid, upon the following: Richard C. Rupp, Esquire Rupp and Meikle 335 North 21st Street, Suite 205 Camp Hill, PA 17011 William A. Duncan, Esquire Duncan, Hartman & Douglas, P. C. One Irvine Row Carlisle, P A 17013 ~ 516513.1