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HomeMy WebLinkAbout03-29-05 IN RE: ESTATE OF MILDRED J. GERBER, an Incapacitated Person : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : ORPHANS' COURT DIVISION : No. 21-01-92 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. 21-02-0540 NOTICE OF AUDITOR'S REPORT AND RECOMMENDATION AND NOW, this2C1 Day of March, 2005, NOTICE IS HEREBY GIVEN that the Auditor, William A. Duncan, Esquire, hereby files the attached Auditor's written report and recommendation regarding the Objections of the Accounts filed in the above-captioned matters. BY THE COURT, \;t{C4lL~4M William A. Duncan, Esquire Auditor Heather Zink Kelly, Esquire Joanne Christine Book, Esquire Rhoads & Sinon LLP One South Market Square P.O. Box 1146 Harrisburg, P A 17108-1146 Marilyn Gerber, Pro Se 717 Market Street, #317 Lemoyne, P A 17043 IN RE: ESTATE OF MILDRED 1. GERBER, an Incapacitated Person : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : ORPHANS' COURT DIVISION : No. 21-01-92 INRE: MILDRED 1. GERBER TRUST UNDER AGREEMENT DATED DECEMBER 19, 1997 : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : ORPHANS' COURT DIVISION : No. 21-02-0540 ORDER OF COURT AND NOW, this day of ,2005, having noted the filing of the Auditor's Report and Recommendations on March 29, 2005, and no exceptions having been filed thereto, the Auditor's Report and Recommendations are hereby CONFIRMED and the Auditor's Recommendations as presented are entered as an ORDER OF COURT. Consistent therewith, the Trustee's Account with regard to the Estate of Mildred J. Gerber, an Incapacitated Person, is CONFIRMED and the Trustee's Account with regard to the Mildred J. Gerber Trust Under Agreement dated December 19,1997, is CONFIRMED. BY THE COURT J. Wesley Oler, Jr., J. Heather Zink Kelly, Esquire Joanne Christine Book, Esquire Rhoads & Sinon LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 Marilyn Gerber, Pro Se 717 Market Street, #317 Lemoyne, P A 17043 IN RE: ESTATE OF MILDRED J. GERBER, an Incapacitated Person : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : ORPHANS' COURT DIVISION : No. 21-01-92 INRE: MILDRED 1. GERBER TRUST UNDER AGREEMENT DATED DECEMBER 19,1997 : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : ORPHANS' COURT DIVISION : No. 21-02-0540 APPEARANCES: Marilyn J. Gerber, pro se, Objector Joanne E. Book Christine, Esquire Heather Zink Kelly, Esquire For PNC Bank, Respondent William A. Duncan, Esquire, Auditor AUDITOR'S REPORT William A. Duncan, Esquire, Auditor in the above-captioned matters, files his Report and Official Transcript as follows: Procedural History 1. In the first above captioned action, PNC Bank, N.A. ("PNC") was appointed Guardian of the Estate of Mildred J. Gerber (hereinafter the "Guardianship Estate") on March 22, 2001. (Stipulated Exhibit-I). 2. Frederick E. Gerber, II, was appointed Plenary Guardian of the Person of Mildred J. Gerber on December 21,2001. (PNC Exhibit -5). 3. Prior to PNC's appointment as Guardian ofthe Estate and Frederick E. Gerber II's appointment as Guardian of the Person, Frederick E. Gerber II served as Agent for Mildred 1. Gerber under financial and medical Powers of Attorney (PNC Exhibit-6). 4. The second above captioned action concerns matters related to the Mildred J. Gerber Revocable Trust, dated December 19, 1997, as amended, revised and restated on August 2, 1999 and January 25,2001 (hereinafter the "Trust"). (Stipulated Exhibits 4 and 5). 5. On October 3,2001, acting as Guardian of Mildred 1. Gerber, PNC removed Frederick E. Gerber, II as Trustee of the Trust and designated PNC as Successor Trustee of the Trust. (Stipulated Exhibit-6). 6. Mildred Gerber died on January 14,2003, survived by three children, Marilyn J. Gerber, Frederick E. Gerber, II and Jane N. Heflin. (Transcript pp31,35). 7. 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. (Stipulated Exhibit -1). 8. On the same date, PNC filed a Petition for the Advance Distribution of the real estate in the Guardianship Account to the Executor of the Mildred J. Gerber Estate, Frederick E. Gerber II. This Court ordered the advance distribution of the real estate on November 13,2003. (Stipulated Exhibit-IS). 9. On October 24,2003, PNC filed an accounting of the administration of the Trust since the time that PNC became Successor Trustee on October 3,2001 (the "Trust Account"). The Trust Account states transactions from October 3,2001 through October 20,2003. (Stipulated Exhibit-2). 10. On or about November 21,2003, Marilyn J. Gerber ("Ms. Gerber"), Mildred Gerber's daughter, filed Objections to both the Trust Account and Guardianship Account (the "Objections"). (Stipulated Exhibit-7). 11. By Orders dated November 25,2003, the Court appointed William Duncan, Esquire as Auditor in both of the above matters to hear the Objections filed by Ms. Gerber to the Trust Account and Guardianship Account. (Stipulated Exhibits 9 and 10). 12. On or about December 15,2003, PNC filed an Answer to Marilyn J. Gerber's Objections to the Trust Account and Guardianship Account. (Stipulated Exhibit 8). 13. The Auditor conducted several pre-Hearing conferences to schedule Discovery and to identify witnesses and other Hearing related matters. 14. By Orders dated July 8, 2004, the Court continued the appointment of the Auditor until January 31,2005 in both of the above matters. (Stipulated Exhibits 11 and 12). 15. By Notice dated September 14,2004, the Auditor provided notice to all parties that the Hearing on both matters would be held September 27-29,2004, with a possible continuance. (Stipulated Exhibits 13 and 14). 16. By Stipulation of the parties filed September 7, 2004, it was agreed as follows: the Hearing would be held September 28-29, 2004; the scope of the Hearing would be limited to the administration of the Trust and Guardianship Estate by PNC as Trustee and Guardian as disclosed in the Trust Account and Guardianship Account; the scope of the relevant time periods would be limited to the time period from October 3,2001 to October 20, 2003 in the case of the Trust, and the time period from March 23, 2001 to October 20, 2003 , in the case of the Guardianship Estate, and the subject matter of the Hearings would be limited to those matters which are relevant to the Objections raised by Marilyn J. Gerber and PNC's defense of those Objections, which include as to both the Guardianship Estate and Trust the alleged mismanagement of assets, including real property and tangible and intangible personal property, alleged improper investment, alleged improper involvement of Frederick E. Gerber II, alleged improper expenditures, alleged excessive fiduciary fees, and alleged excessive attorneys' fees. (Stipulated Exhibit -16). 17. After receiving Pre-trial briefs, on September 28-29, 2004, a Hearing was held to take testimony with respect to the Objections. A copy of the Official Transcript is filed herewith. 18. At the Hearing, the parties submitted Stipulations which were entered of Record. The auditor received proposed evidence and ruled upon the admissibility of same. 19. By Stipulation of the Parties filed December 7, 2004, it was argued that all pending Motions in both of the above actions were withdrawn without prejudice, the substance and content of such withdrawn Motions to be argued in the proposed Auditor's Report to be submitted by the parties. 20. By Orders dated December 7, 2004, the Court continued the appointment of the Auditor until March 31, 2005, in both of the above matters, and dismissed all pending Motions and Petitions in both matters without prejudice. 21. The Auditor received requested Briefs, Proposed Findings of Fact and Conclusions of Law post-hearing as to all issues raised by the Objectors and the Accountant in this matter. 22. The Auditor files this report and official transcript with the Orphans' Court on this 29th day of March, 2004, together with Notice of Filing attached hereto. 23. The Auditor's costs are specified in a Bill of Costs submitted to the Accountant in accord with the Court's Order of Appointment of Auditor. Findings of Fact 24. The witnesses presented at the hearing were David A. Brown, Vice President and Trust Officer for PNC ("Mr. Brown"), Joanne Book Christine, Esquire ("Ms. Christine"), attorney at Rhoads & Sinon LLP which served as counsel for PNC, Frederick E. Gerber II, and Marilyn 1. Gerber. 25. The Objector, Marilyn 1. Gerber called as witnesses David A. Brown, Joanne Book Christine, Esquire, Frederick E. Gerber II and provided narrative testimony on her own behalf. 26. The testimony of all of the witnesses, and in fact the entire Record before this Court, sets forth the difficulties and interference that PNC encountered in the administration of the Guardianship Estate and Trust and establishes that this was not a routine administration. 27. Mr. Brown has over 20 years of experience as a trust and guardianship administration, although he has only recently obtained certification as a Financial Planner. Mr. Brown had the primary responsibility at PNC for the administration of the Guardianship Estate and Trust. (Tr. pp39,42-43). 28. The fees charged by PNC for the administration of the Guardianship Estate and Trust were according to PNC's standard schedule of fees and based on the value of the assets under management. (Objector's Exhibit 1, Tr..pp 54-55,62-63.) 29. Immediately following PNC's appointment as Guardian of the Estate, PNC obtained appraisals of Mildred J. Gerber's tangible personal property and real estate. (Accountant's Exhibit-I, Tr. p. 64). 30. W.K. "Dusty" Chapman is qualified as an appraiser who appraised the tangible personal property of Mildred J. Gerber at its fair market value and, to the extent that property was not included in the appraisal, it was based on his determination that it had no market value.(Stipulated Transcript of Deposition Exhibit-I) 31. The tangible personal property of Mildred J. Gerber included an automobile which was taken out-of-state without PNC's permission or knowledge in January, 2002, and was later sold to one of Mildred J. Gerber's children, Jane Heflin, by taking a note from Ms. Heflin for the automobile's appraised market value at the prevailing rate of interest at the time. (Tr. pp. 144- 148). 32. Upon its appointment as Guardian, PNC made immediate attempts to collect Mildred 1. Gerber's financial assets and encountered some difficulties transferring the bank accounts due to two main factors: first, the automatic payments and pension deposits that were attached to the accounts had to be discontinued, and second, the fact that Frederick E. Gerber II continued writing checks from Mildred J. Gerber's bank accounts following PNC's appointment as Guardian, despite PNC's repeated instructions to him to stop writing checks. (Tr. pp 68-75). 33. A spreadsheet of the checks written by Frederick E. Gerber II from the PNC checking accounts for the interim period was submitted as a Stipulated Exhibit, totaled slightly over $3,000.00 for utilities, subscriptions, taxes, store purchases, lawn care and similar expenses. (Stipulated Exhibit-I 8). 34. Frederick E. Gerber II had served as Midlred J. Gerber's agent under a financial Power of Attorney prior to PNC's appointment as Guardian. (PNC Exhibit-6). 35. Mr. Brown moved assets from Mildred J. Gerber's personal bank account to the Guardianship account in an attempt to gain control over the assets. Because Grederick E. Gerber II continued to write checks from those accounts, there were two insufficient funds charges against the accounts totaling $60.00. (Objector's Exhibit-6, Tr. p. 116). 36. Once PNC was appointed Guardian, PNC requested information from Frederick E. Gerber II on numerous occasions regarding income and assets of the Midlred J. Gerber Revocable Trust, but because no information was forthcoming, PNC obtained counsel, removed Frederick E. Gerber II as Trustee, appointed PNC as Successor Trustee on October 1,2001, and demanded an accounting of Frederick E. Gerber II. (Stipulated Exhibit-6, Tr. pp 76-80). 37. PNC demanded an accounting of Frederick E. Gerber II as Trustee of the Frederick E. Gerber, Sr. Revocable Trust, of which Mildred J. Gerber was a beneficiary. (Tr. 234-235). 38. PNC encountered difficulties in marshalling the assets of Mildred 1. Gerber and obtaining the necessary asset and income tax information not only due to the lack of cooperation of Frederick E. Gerber, II, but also because it had difficulties collecting her mail due to various interruptions in the mail. (Tr. pp. 90-92). 39. In April, 2002, Marilyn 1. Gerber provided PNC with 15 pounds of mail belonging to Mildred 1. Gerber that had been accumulated that PNC was unaware of. (Tr. p 98). 40. Due to the difficulty PNC encountered in obtaining information concerning the assets and income of Mildred J. Gerber, the Guardianship incurred a penalty of $128.00 for the late filing of Mildred J. Gerber's 2000 tax return and no penalties for the late filing of the 2001 tax return. (Objector's Exhibits 3 and 4, Tr. p. 110). 41. PNC used the tax accountant previously hired by Frederick E. Gerber II to prepare Mildred J. Gerber's tax returns, since that individual had all of the relevant information, and because PNC would have charged the same fee, if not more, to prepare the tax returns. (Tr. pp 114-115) . 42. PNC retained Rhoads & Sinon, LLP as counsel with regard to the Guardianship Estate and Trust to assist it in marshalling assets and obtaining fmancial information. (Tr. p. 124). 43. The legal services provided to PNC by Rhoads & Sinon, LLP included responding to numerous litigation filings commenced by Marilyn J. Gerber, and filing several actions against Frederick E. Gerber II to provide Trust accounts. The invoices of Rhoads & Sinon, LLP were not excessive. The average hourly rate was approximately $170. The invoices were generally reviewed by in-house counsel for PNC and were found to be reasonable. (Tr. pp 125-127,203). 44. The majority of legal services performed by Rhoads & Sinon, LLP were performed by one attorney at a billing rate of approximately $160 per hour. (Tr. pp. 163-188). 45. PNC authorized and directed all services performed by Rhoads & Sinon, LLP. (Tr. pp 163-188). 46. Rhoads & Sinon, LLP provided itemized bills for its services which revealed that a large amount of the time expended was necessary due to the difficulties encountered with the Gerber family and their counsel and the numerous Court filings which were required. (Tr. pp 163-188). 47. Rhoads & Sinon, LLP discounted their bills to PNC on several occasions, including a significant discount on the invoice dated September 30,2003, which resulted in a billing rate for that invoice ofless than $100 per hour for the time shown as expended. (Stipulated Exhibit-17, Tr. pp. 189-192). 48. The legal services performed by Rhoads & Sinon, LLP were extraordinary, given the size of the Guardianship Estate and Trust, but were necessary due to the circumstances of the case. (Tr. pp 199-200). 49. Charges for lawn maintenance to PNC were from a professional maintenance company. PNC as a corporate fiduciary is required to have insured entities perform such services. The charges were not excessive given the need for an insured professional maintenance company. (Tr. pp 150-153). 50. Charges for certain personal, medical and living expenses of Mildred J. Gerber were not excessive considering Mildred J. Gerber's medical needs and the determination by her personal Guardian, Frederick E. Gerber II, that she should receive those services outside of her home. (Tr. pp 228-233). 51. The Trust Account showed an investment principal loss of approximately $9,000, offset by a principal gain of approximately $3,000, and income earned of approximately $15,700. The Guardianship Account showed a gain of $17,000 representing the increase in value of the real estate during PNC's administration. (Tr. pp 221-223). 52. During the time period of the administration of Mildred J. Gerber's Guardianship Estate and Trust, the market generally declined approximately ten (10%) percent. (Tr. p. 271). 53. In recognition of the liquidity concerns of the Guardianship Account, the accounts were invested in PNC's conservative profile which consisted of20-25% in equity and 75-80% in short-term and intermediate-term bonds). (Tr. p. 224). 54. Mildred 1. Gerber left her home in January, 2002. When PNC learned that she would not return to her home, it determined that it would not be prudent to rent the home, but rather prepared the home for sale. (Tr. p. 236). 55. In preparation for the sale of the time, all tangible personal property with value as determined by the appraiser was inventoried and removed from the home and placed in storage. (Tr. p 424). 56. PNC provided Marilyn J. Gerber with a copy of the inventory to identify property allegedly belonging to her but received no response. (Tr. p. 425). 57. PNC received one offer for the real estate in written, proper form, which offer was accepted, although the buyers eventually withdrew that offer. (Tr. p. 248). 58. The administration of the Guardianship and Trust by PNC was difficult due to the interference and harassment caused by Marilyn J. Gerber and the contention between her and her siblings, Jane Heflin and Frederick E. Gerber II. (Tr. pp. 243-247). 59. The basis for PNC's charge of$12,500 in extraordinary fees in the Guardianship Account and Trust Account is substantiated by numerous factors, including the lack of cooperation from the family, the difficulty in marshaling and administering the assets due to the family's interference, the numerous court filings and the time expended by PNC staff and in- house legal counsel in dealing with the administration and related matters. (Tr. pp. 256-257, PNC Exhibit-4 ). 60. The extra time spent by Mr. Brown, his staff and PNC in-house legal counsel in the administration of the Guardianship and Trust, amounted to time expended of several hours per week for 128 weeks over the time period of the Accounts, which Mr. Brown valued conservatively at over $20,000. (Tr. pp. 257-259). 61. Mr. Brown based the $12,500 fee for PNC's extraordinary expenses at roughly 60% of what PNC was cost in lost opportunity, lost hours and general abuse. (Tr. p. 259). 62. The standard schedule of fees for PNC permits a charge for an extraordinary fee based on these circumstances. (Tr. P. 160, Objector's Exhibit-I). 63. PNC administered the Guardianship Estate and Trust in the best interests of Mildred J. Gerber at all times. The management and investment of the Guardianship and Trust were reasonable and prudent under the circumstances at the time. (Tr. pp. 276-277). 64. Frederick E. Gerber, II and Marilyn J. Gerber did not get along during the period of time that PNC served as Guardian. (Tr. p. 304). 65. Frederick E. Gerber, II continued to write checks as Trustee ofthe Mildred J. Gerber Trust for several months after he was removed as Trustee by PNC. (Tr. pp. 305-313). Ouestions to be adjudicated The questions presented for the Auditor's consideration are derived from the Stipulation of the Parties. With respect to the numerous objections filed by Marilyn Gerber in writing and expressed in her opening statement at the hearing, the questions set forth below represent the substance of those objections: 1. Did PNC mismanage the assets of the Guardianship Estate and Trust, including real property and tangible and intangible personal property? 2. Did PNC improperly invest the assets of the Guardianship Estate and Trust? 3. Did PNC act improperly in its handling of the alleged improper expenditures by Frederick E. Gerber II? 4. Did PNC make improper expenditures in the management of the property of the Guardianship Estate and Trust? 5. Were the fiduciary fees charged by PNC excessive? 6. Where the attorney fees charged at the behest of PNC excessive? 7. Should PNC be surcharged for any of its actions in connection with the Guardianship Estate fuid Trust? 8. Should any of Marilyn Gerber's outstanding Motions and Petitions be granted? Conclusions After due consideration of all of the filings of the parties, including the Account, Objections, Stipulations, Briefs of the parties, oral argument, testimony, evidence entered of record, and cited and relevant legal authorities, the Auditor finds as follows: 1. The general test of fiduciary liability on the sale or retention of trust assets is "common prudence, common skill and common caution" In re Lentz' Estate, 364 Pa. 304,308,72 A.2d 276,278 (1950). If a fiduciary has greater skill than that of a person of ordinary prudence, then the fiduciary's standard of care must be judged according to the standard of one having this special skill. Estate of Pew, 440 Pa. Super. 195, 655 A.2d 521, 541 (1994). A trustee will not be held personally liable for an honest exercise of a discretionary power, in the absence of supine negligence or wilful default. The trustee is under a duty to the beneficiary- and if the trustee has greater skill than that of a man of ordinary prudence, he is under a duty to exercise such skill as he has. In re Stirling's Estate, 342 Pa. 497, 504, 21 A.2d 72, 76 (1941). Using this standard, the testimony reveals that the Trustee in this case managed the assets of the Guardianship Estate and Trust to the best of its prudence, skill and caution. The Objector failed to unearth any instances of dishonesty or acts beyond the bounds of reasonable judgment on the part of the Trustee. To the contrary, it would appear from the testimony that PNC performed to the best of its ability in the face of difficult circumstances in marshaling the assets, preserving the personal property of Mrs. Gerber, disposing of the real estate, liquidating certain equities and in making its investments at a time when the market was in disarray. 2. Parties seeking surcharge bear the burden of proving the particulars of the wrongs alleged. In re Estate of Killey, 457 Pa. 474, 326 A.2d 372 (1974). Based on the evidence and testimony presented at the Hearing, Marilyn 1. Gerber failed to present evidence to establish that PNC should be surcharged for any transaction reported in the Guardianship Account or Trust Accounts, or for its actions as Guardian and Trustee. 3. In her testimony and the cross-examination of the witnesses, Marilyn 1. Gerber failed to point to any individual line item in the Account and establish either a breach of duty or a loss by PNC. to that line item. The only losses that Marilyn J. Gerber established during the entire Hearing were a charge in the amount of $60 for an insufficient funds charge arising out of Frederick Gerber's actions and a penalty of $128 resulting from a late income tax filing, again due to difficulties in obtaining information in order to complete the return. PNC acted in good faith in both instances and therefore cannot be subject to surcharge. Surcharge is defined as the penalty for failure to exercise common prudence, common skill and common caution in the performance of fiduciary duties. In re Estate of Dobson. 490 Pa. 476,417 A.2d 138 (1980); In re Estate of Campbell, 692 A.2d 1098 (Pa. Super. 1997). Surcharge is awarded as compensation to beneficiaries for loss occasioned by a fiduciary's breach of one or more of the duties owed to them. Restatement (Second) of Trusts, section 204. A surcharge in this situation is not warranted. 4. The court shall allow such compensation to the trustee as shall in the circumstances be reasonable and just, and may take into account the market value of the trust at the time of the allowance, and calculate such compensation on a graduated percentage. 20 P.S. 7185 A fiduciary's compensation depends upon the extent and character of the labor and the responsibility involved. Fixing the amount of compensation is peculiarly within the discretion of the court below which in most cases is better able to judge as to the reasonableness of such charges than the appellate court. Unless such discretion is clearly abused the judgment of the court below will not be disturbed. In re Strickler's Estate, 354 Pa. 276,277,47 A.2d 134, 135 (1946). While as a matter of convenience the compensation of a fiduciary may be arrived at by way of percentage, the true test is always what the services were actually worth and to award a fair and just compensation therefor. In re Williamson's Estate, 368 Pa. 343, 82 A2s 49 (1951). It is clear from the testimony that PNC followed its published schedule of rates for the usual compensation charged to the Trust. With regard to the extraordinary charges, the Auditor finds the evidence to be convincing that the charges were reasonable. 5. Counsel fees for successfully defending a trustee against objections to its account are properly payable from the trust estate. In re Fishel Land Company 3 Pa. D.& D.3d 231, 27 Fiduc. Rep. 237 (1976). It is fundamental that an attorney seeking compensation from an estate has the burden of establishing facts which show that he or she is entitled to such compensation. Hempstead v. Meadville Theological School, 286 Pa. 493, 495, 134 A. 103 (1926). The allowance or disallowance of counsel fees rests generally in the judgment of the auditing judge, and his or her findings of fact, approved by the court en banc and supported by competent evidence, are binding on appeal. Bennett Estate, 366 Pa. 232,237,77 A.2d 607, 609 (1951). It is clear from the testimony and the sheer volume of pleadings and discovery in this case that the counsel fees sought are reasonable and properly payable by the trust estate. 6. Granting the outstanding Motions and Petitions filed by Marilyn Gerber would not change the facts of this case nor yield any further relevant information for the Auditor's decision- making process. Comments Marilyn Gerber filed Objections to the Accounts pro se, and as such, her pleadings will not be held to the stringent standards of pleadings drafted by lawyers. The Court must examine the substance of her pleadings to determine if she would be entitled to relief if the facts averred are proven. Com. Ex reI. Saunders v. Creamer, 464 Pa. 2, 345 A.2d 701 (1975); Bell v. Horn, 762 A.2d 776 (Pa. Commw. Ct. 2000); Madden v. Jeffes, 85 Pa. Commw. 414, 482 A.2d 1162 (1984). While she has some latitude in the conduct of the case, the Auditor notes that nevertheless, Ms. Gerber must still meet the burden of proving her case. This she did not do. PNC established that it had the authority to act; that it acted and that following these actions, it filed accounts ofthese actions. During the time in which PNC was fulfilling its obligations as Guardian and Trustee, it encountered several problems: (1) The transition of Frederick Gerber II was less than smooth, due to Mr. Gerber's failure to comply with PNC's requests; (2) Marilyn Gerber, through her conduct, necessitated the bank to employ counsel and to appear in court in order to respond to Ms. Gerber's numerous requests. These appearances and activities consumed a great deal of staff time and the problems associated with access to Mildred Gerber's correspondence and financial records were a burden on the bank. The Auditor notes that the volume of filings in this proceeding runs to the many hundreds of pages. Hearings were held and the Objector was given opportunity in three days of hearings to present evidence to substantiate her objections. Recommendations 1. The Accounts filed by PNC for the Guardianship of Mildred J. Gerber and the Trusteeship of Mildred J. Gerber are confirmed without exception. 2. The request for surcharges by Marilyn Gerber against PNC are denied. 3. All objections filed by Marilyn Gerber against PNC are dismissed. Respectfully Submitted ~~C~ Auditor March 29,2005