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HomeMy WebLinkAbout07-14-05 JoaIll1e E. Book, Esquire Attorney I.D. No. 82028 Heather Zink Kelly Attorney I.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. IN RE: ESTATE OF MILDRED J. GERBER, an Incapacitated Person "'" C) :g Co c.rt s: ::0 C0- rD -u c: r0~("') I :0 r ,- rn '~::u3;Q &- IN THE COURT OF COMMON ptRAfoF ." CUMBERLAND COUNTY, PE~S~V AN~ ORPHANS' COURT DIVISION .' ~ f";? No. 21-01-92 <J1 c..,~) ..:"\ __ -'-'1 c~ rn ANSWER AND NEW MATTER OF PNC BANK. N.A.. TO MARILYN J. GERBER'S OBJECTIONS TO SECOND AND FINAL ACCOUNT OF GUARDIANSHIP ESTATE NOW COMES, PNC Bank, N.A. (hereinafter "PNC"), Guardian of the Estate of Mildred J. Gerber, an incapacitated person (the "Guardianship Estate"), by and through counsel, Rhoads & Sinon LLP, and files this Answer and New Matter to the Marilyn J. Gerber's Objections to Second and Final Account of Guardianship Estate, 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 beneficiary of the Estate. 2. Admitted. 3. Admitted. 4. Denied. By way of further answer, the remaining loan balance is shown on page 9 of the Account, and the interest rate is 6% as also shown in the Account. 5. Denied. By way of further answer, as shown on page 8 of the Account this asset was transferred to the Executor of the Estate of Mildred J. Gerber pursuant to Order of this Court 516619.1 J' dated November 13, 2003, and thus this asset, and any sale expenses or proceeds of this asset, are not reportable in this Account. 6. Denied. By way of further answer, this issue was fully addressed III the proceedings concerning the First and Final Account of the Guardianship Estate. 7. Denied. By way of further answer, this issue was fully addressed III the proceedings concerning the First and Final Account ofthe Guardianship Estate. 8. 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. 9. Denied. By way of further answer, a fiduciary IS entitled to a reasonable termination fee. 10. Denied. By way of further answer, this payment was refunded in full as shown in the Account. 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. 12. 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. 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- 14. Denied. 15. Denied. By way of further answer, the transfer of assets from a Guardian of Estate to the Estate of a decedent after the incapacitated person's death is required by Pennsylvania law. 16. Denied. 17. Denied. 18. Denied. NEW MATTER 19. On October 24,2003, PNC filed a First and Final Account of its administration of the Guardianship Estate from March 23, 2001 through October 20, 2003. 20. Ms. Gerber filed Objections to the First and Final Account of the Guardianship Account and William Duncan, Esquire was appointed as Auditor. 21. A Hearing was held on the Objections to the First and Final Guardianship Account on September 28-29,2004, before Auditor Duncan. 22. 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 Guardianship Estate be confirmed in its entirety. 23. On April 25, 2005, this Court confirmed the First and Final Account ill accordance with the Auditor's recommendation. 24. As with her Objections to the First and Final Account of the Guardianship Estate, Ms. Gerber's claims are entirely without merit. 25. Ms. Gerber's Objections are barred by res judicata and/or collateral estoppel. 26. Ms. Gerber has failed to state a claim upon which relief may be granted. -3- 27. Ms. Gerber's claims are barred, in whole or in part, by the doctrine oflaches. 28. Ms. Gerber's claims are barred, in whole or in part, by the doctrines of waiver and/or estoppel. 29. Ms. Gerber's claims are barred, in whole or in part, by the doctrine of unclean hands. 30. Ms. Gerber's damages, if any, are caused by her failure to mitigate. 31. 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. 32. 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 Guardian of the Estate of Mildred J. Gerber, and confirm said Account and the Statement of Proposed Distribution filed therewith. Respectfully submitted, By: RHOADS & SINON LLP /1 . :5jCtJ .CJlQ C-~ /10 e E. Book . i ~eather Zink Kelly \..One South Market Square P. O. Box 1146 Harrisburg, P A 17108-1146 (717) 233-5731 Attorneys for PNC BANK, N.A. - 4- JUL-13-2005 15:54 PNC BRt~K 717 730 2254 P.01/02 VERIFICATION David A. Brown, deposes and says, subject to the penalties of 18 Pa. e.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 of PNC Bank, N.A., to the Marilyn J. Gerber's Objections to Second and Final Account of Guardianship Estate are true and correct to the best of his knowledge, inform:a.tion and belief. Date 7/tJ/O~ I ~ David A. Brown 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 the Marilyn J. Gerber's Objections to Second and Final Account of Guardianship Estate 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 b~, . __~-ro.-- ~annon Whitson 516513.1