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HomeMy WebLinkAbout08-02-05 (3) INRE: MIDLRED J. GERBER TRUST UNDER AGREEMENT DATED DECEMBER L9,1997 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION NO. 21-2002.0540 INRE FRED E. GERBER,SA. TRUST Q I''';) c,:::, (,~ ~_~""i NO. 21-1998.0195 ~...~'.. :-n r ,1 " C-) ';. '~~5 :,-) IT'I c,;J ('") \,~-"- C') I N .'C) -[1 -"0 C""W) -Tl :: :-,1) -', ) , .. iT I ANSWER TO NEW MATTER FILED BY PNC BANK TO THE PETITION FOR THE EMERGENCY REMOVAL OF FREDERICK E. GERBER,lr AS TRUSTEE OF THE FRED E. GERBER,SA. 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, SA. 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 OF 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 AND PSYCHIATRIC EVALUATION OF FREDERICK E. GERBER," FOR COMPETENCE TO ACT AS AN EXECUTOR AND TRUSTEE AND NOW COMES, Marilyn Gerber, Pro Se, the eldest child and a full beneficiary of the above stated Trusts who replies to NEW MATTER as raised by PNC Bank through their attorneys, Rhoads & Sinon, as follows: 40. Denied. 41. Denied. This Court agreed based upon the recommendation and v- order of Auditor Duncan that Marilyn Gerber could re-submit her past motions and petitions as they were dismissed without prejudice in December 2004 and these were sworn to as stipulations by Joanne Book, Richard Rupp, Jackie Verney and the Petitioner in December 2004 and signed on March 17,2005. This Petitioner has the right by law to file Petitions when there is new evidence or actions that support her facts which is supported by an argument and an affidavit. 42. Denied. Asks for a conclusion of law. 43. Denied. Asks for a conclusion of law. 44. Denied. Asks for a conclusion of law. 45. Denied. Asks for a conclusion of law. 46. Denied. Asks for a conclusion of law. 47. Denied. Asks for a conclusion of law. 48. Denied. Asks for a conclusion of law. 49. Denied. PNC Bank has remained in contact with the attorneys of the Trustee, Frederick E. Gerber, II and in fact had to have discussed with them their intent to resign as Trustee of the Mildred J. Gerber Trust and ask them if Frederick E. Gerber,1I would accept being the Trustee of the Mildred J. Gerber Trust. It is ludicrous to think that PNC Bank is not in contact with Frederick E. Gerber, II as well as Jacqueline Verney and possibly, Lindsay Baird. NEW MATTER 50. The Petitioner asks this Court for a hearing to discuss the issue of who is by law the rightful entity to argue the OBJECTIONS that were filed on the Accounting of the above stated Trusts for the following reasons: a. Auditor William A. Duncan in the past two status conferences has stated that Jacqueline Verney who was substituted by this Court as the Objector for the Objections filed by PNC Bank on June 2003, that he understands that Jackie Verney's role is to REPRESENT PNC BANK and their Objections. b. Jackie Verney's ANSWER to this statement by Auditor Duncan is that she DOES NOT understand that she is to argue the Objections as filed by PNC Bank in the summer of 2002. Rather, Jackie Verney sees that her role is to represent Mildred J. Gerber. This REVELATION is much different than what this Petitioner believes this Court understood the substitution to mean and in fact the Motion to substitute Jackie Verney as the Objector was in fact created by Richard Rupp, the attorney for the Trustee, Frederick E. Gerber,1I in an attempt to prevent PNC Bank who had substantial issues about the Accounting of the Trustee and they also saw that they would be more than likely liable for future actions for conspiracy to defraud Marilyn Gerber of her inheritance. c. PNC Bank REMAINS to this day the Trustee of the Mildred J Gerber Trust and in fact removed Frederick E. Gerber,1I as the Trustee of the Mildred J. Gerber Trust which incurred substantial legal expenses not to speak of the Accounting and the revelation of the wasting by Frederick E. Gerber,1I of the Mildred J. Gerber Trust. PNC Bank has continued to act as the Trustee of the Mildred J. Gerber, bill the Trust, engage in financial and investment decisions and payout the legal fees of Auditor Duncan, and now Jackie Verney who even Auditor Duncan has a different opinion of what her role is. PNC Bank has billed the Trust a minimum fee of $5,000 as the Trustee of the Mildred J. Gerber Trust and recently just filed a second and final Accounting of the Mildred J. Gerber Trust. This Petitioner asks then WHO IS THE TRUSTEE OF THE MILDRED J. GERBER TRUST and WHY ISN'T PNC BANK ARGUING THE OBJECTIONS THAT they filed in 2002. d. There CANNOT be two separate entities who appear or believe that they are acting as the Trustee of the Mildred J. Gerber Trust. e. PNC Bank filed their citations for an accounting as the Trustee of the Mildred J. Gerber Trust and its relationship to the Fred E. Gerber,Sr. Trust as Mildred J. Gerber had the possibility of adding to her Trust as her Trust was ultimately a pour over Trust from her estate upon her death. f. Despite that Mildred J Gerber is deceased, PNC Bank still remains the TRUSTEE of the Mildred J. Gerber Trust and therefore should argue the Objections that they filed. g. Jackie Verney has and continues to be a PARTIAL substitution as Marilyn Gerber has filed since the inception of her substitution and at the last July 7,2005 status conference hearing stated to the Auditor that she intends to file a civil court action against Marilyn Gerber for soiling her good name and seek civil criminal actions against Marilyn Gerber for asking for an Accounting of the two Trusts. h. Auditor Duncan asked Jackie Verney if she could represent the interests of a dead person and there was no law brought forth to prove her belief that she can. In fact, Jackie Verney answered that she knew what Marilyn Gerber's parents wanted. Marilyn Gerber's response to her was that Mildred J. Gerber was declared incapacitated and that she NEVER knew Fred E. Gerber,Sr. i. Jackie Verney has shared with Marilyn Gerber that she is not confident that she can argue these Objections in a telephone conversation and this raises Marilyn Gerber's concern that PNC Bank who is bound by federal and fiduciary Trust laws is and should be the entity to argue these Objections. j. Marilyn Gerber believes that there is a great difference in representing the interests of Mildred J. Gerber who is dead and having the Trustee of the Mildred J. Gerber Trust argue the Objections which DOES NOT DEPEND ON MILDRED J. GERBER BEING ALIVE. The Courts in the US are filled of Trustees who argue and enter motions and petitions in Courts regarding deceased owners of Trust which then became IRREVOCABLE. 51 . Marilyn Gerber believes that PNC Bank is avoiding their fiduciary responsibility and is currently violating the OCC Office of the Comptroller and the SEC regulations as the Trustee of the Mildred J. Gerber Trust by not acting as the Trustee of the Mildred J. Gerber and arguing their Objections which they filed in the summer of 2002. Marilyn Gerber also believes that they are avoiding having to reveal documents and financial data which they are in possession and are currently attempting to have quashed in this Court with every supoena that Marilyn Gerber issues. Such documents would certainly put them in an unfavorable light and prove this Petitioners allegations that they conspired to defraud Marilyn Gerber of her inheritance. PNC Bank through David Brown has already admitted there is great acrimony between PNC Bank and herself. See Exhibit A. 52. Marilyn Gerber requests that PNC Bank be appointed as the Objector for the Objections that they filed in the summer of 2002 and the Jackie Verney be removed as the current Objector and that all of the legal expenses paid to Jackie Verney be paid back to the Trusts by PNC Bank as well as all filing fees and expenses that Marilyn Gerber has expended to argue this Petition. WHEREFORE, Marilyn Gerber, respectfully requests that this Court grant her Petition to PREVENT PNC BANK from resigning and that they are ordered to argue their Objections before this Court at the upcoming hearing on September 7-9,2005. Respectfully submitted, Marilyn Ger er,Pro Se 717 Market Street,#317 Lemoyne,PA 17043 717 503-5280 Date: tlar. J;- ffl r VERIFICATION Marilyn Gerber, deposes and says subject to penalties of 18 Pa. C.S.A. relating to unsworn falsification to authorities, that she make this verification by its authority and that the facts set forth in the forgoing New Matter are true and correct to the best of her knowledge, information and belief. Dale: 120' ~ M J CERTIFICATE OF SERVICE I hereby certify that on August 2,2005, provided a true and correct copy of the New Matter of PNC Bank served by US Mail, return receipt requested, upon the following: Joanne Book One South Market Square Harrisburg, PA 17108 Jacqueline Verney 44 South Hanover Square Carlisle,PA 17013 Richard Rupp 355 N. 21 st Street Camp HiII,PA 17011 William Duncan One Irvine Row Carlisle,PA 17013 Date: (2) -? MY r Joanne E. Book, Esquire Attorney LD. No. 82028 Heather Zink Kelly Attorney LD. No. 86291 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, P A 17108-1146 (717) 233-5731 Attorneys for PNC Bank, N.A. 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, IT 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 TillS COURT'S DENIAL TO REMOVE FREDERICK E. GERBER, IT, A REQUEST FOR A COMPLETE MEDICAL PSYCHIATRIC EVALUATION OF FREDERICK E. GERBER, II FOR COMPETENCE TO ACT AS AN EXECUTOR AND TRUSTEE 5168!P9.1 2Xlh~1 A. 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: 1. 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. 11. Denied. Paragraph 11 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 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 1. Gerber and the Trust of Mildred 1. Gerber. The remaining allegations of Paragraph 23 are denied. 24. Denied. 25. Denied. Paragraph 25 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 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 14(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. 206.1(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 36. The same are therefore denied. 37. Denied. Paragraph 37 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 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 reliefwhich 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: !1)CQA/Vf'lic8JyfL J6avke E. Book /Heather Zink Kelly , One South Market Square P. O. Box 1146 Harrisburg, PAl 71 08-1146 (717) 233-5731 Attorneys for PNC BANK, N.A. -6- . JUL-1]-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 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 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..>" 5:' ~ 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, P A 17043 and by U.S. mail, first class, postage pre-paid, upon the following: J acquelirie M. Verney, Esquire 44 S. Hanover Street Carlisle, PAl 7013 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 ~---.~O>- \J~~ r-annon Whitson !,.. 516513.1 \ ~~~ ~ i~~ '~ \. t ~ ~ \.- ~ ~ lJJ '\I; ~ ~ ~. " ~ ~ '& ~ C (J\ ~] ~ () ~ ~ ~ ~:t'il>~\ So IV '^ .,..,. "U -" ~ ~ :t (fl 0 _ """' z. 0 F ~ ~ 0 "" "U ;xl () "" ~ {l\ 0 ~ 0 -" {l\ ;xl {l\ cl;-\"U~(Jl -" (fl 0 -" c ;xl ~"?;~ ~ ~ 0 o Z. - ~ ~k!......"..'" .,...... .... 'n~ e'IJn r6 II t - ~