HomeMy WebLinkAbout10-20-05
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Court ofComrnon Pleas ofCwnberland County-Orphans' Court Division
COMMONWEALTH OF PENNSYLVANIA
RNERVIEW MEMORIAL GARDENS
Settlor
No.
To:
PNC BANK, National Association
Trustee
PETITION FOR ADJUDICATION-TRUST INTER VIVOS
The petition of the undersigned Trustee under deed of trust respectfully represents:
That a First and Interim Account was filed in the office of the Clerk of the Orphans'
Court Division on
and advertised for audit on
That the said RIVERVIEW MEMORIAL GARDENS, Settlor, on November 8, 2000
executed a Perpetual Care Trust designating PNC BANK, National Association as Trustee,
creating an irrevocable trust. The Trust Agreement was amended by the Assignment and
Amendment to Care Fund Trust Agreement as of September 14, 2004. The Trust Agreement and
the Assignment have not previously been recorded. A copy of the Trust and the Assignment are
hereto attached.
The reason for filing the present account is:
Per the requirement of9 Pa. Con. Stat. s308(a) and to confirm the current account and to
award principal and income to PNC Bank, N.A. Trustee, in continuing trust.
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The names of all persons having any interest, vested or contingent, in the trust, with their
relationship, and the nature of their interests, are as follows:
(If this is a terminated trust, set forth the name oflife beneficiary, date of death, and name
oflegal representative.) N/A
(If this is a continuing trust, set forth the name of the succeeding trustee and date of
appointment. )
Notice was provided via first class mail dated
following:
,2005, to each of the
PNC Bank, N.A., Trustee
c/o Kathleen L. Singleton
620 Liberty Avenue
Two PNC Plaza - 25th Floor
Pittsburgh, PA 15222
RlVERVIEW MEMORIAL GARDENS, Settlor
c/o Stonemor Partners L.P.
A TTN: Linda Punturiero, Trust Department
155 Rittenhouse Circle
Bristol, P A 19007
Michael T. Foerster, Esquire
Deputy Attorney General
Commonwealth of Pennsylvania
Office of the Attorney General
Charitable Trusts and Organizations Section
Strawberry Square
Harrisburg, P A 17120
The accountant has given written notice of the filing of the account and the call thereof
for audit and confirmation to every unpaid claimant who has given written notice of his claim to
the accountant or to his attorney of record, and to every other person known to the accountant to
have an interest in the trust as beneficiary, heir, or next of kin.
None.
Wherefore, your petitioner asks that distribution be awarded to the persons thereto
entitled, and suggests that the distributive shares of principal and income are as follows:
642308
All remaining balances to be awarded as follows:
Principal- To PNC Bank, N.A., Trustee for the benefit of RIVER VIEW MEMORIAL
GARDENS CEMETERY, in continuing trust.
Income - To RlVERVIEW MEMORIAL GARDENS CEMETERY*.
*Subject to Distributions heretofore properly made.
And your petitionerls will respectfully pray, etc.
Respectfully Submitted,
STATE ~
COUNTY
PNC BANK, N.A.
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By: '/ Y/'4 'z ,,:'
/ /JOANNA MAYO; .
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JOANNA MAYO, Vice President of the above captioned PNC Bank, N.A., Trustee, and
as such Vice President duly authorized to make this Verification on its behalf, being duly
affirmed say/s: That the statements made in the foregoing petition which are within personal
knowledge of petitioner are true, and as to statements based on information of others, the
petitionerls, after diligent inquiry, believe/s them to be true.
PNC Baof, N.A. ~..
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By: ./'. '/",,/ /) ",",f._.~j/-,-;, ,/r:. ,,-'__...
JOANNA MAYO, Vice President
NC'I~ 1M&.
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NclIary MIc
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642308
.I hereby certify that the following is a true and correct
'i . copy of ~e original document. _
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.: Nina B. Stryker, squire
Attorney I.D. #36531
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PERPETUAL CARE TRUST
FOR RIVERVIEW MEMORIAL GARDENS
THIS PERPETUAL CARE TRUST AGREEMENT made this s:+l day of
thv6'\~, 2000 by and between Riverview Memorial Gardens, a Pennsylvania
corporation with its principal offices located at
(hereinafter referred to as "Cemetery Operator") and PNC BANK, National Association,
a national banking association organized under the laws of the United States of America,
with one of its principal offices located at Two PNC Plaza, Pittsburgh, P A 15222
(hereinafter "Trustee").
WIT N E SSE T H:
WHEREAS, in the normal course of its business, the Cemetery Operator enters
into contracts with owners and manages a cemetery and sells burial lots therein.
WHEREAS, Cemetery Operator is required to place certain funds into a trust
account to be used for the perpetual care and maintenance of the cemetery and desires to
have Trustee act as trustee in connection therewith; and
WHEREAS, Trustee is authorized to perform trust functions and desires to act as
trustee for those funds.
NOW THEREFORE, in consideration of the mutual covenants contained herein
and intending to be legally bound hereby, the parties hereto agree as follows:
1. Establishment. There is hereby established a trust account (the "Trust"),
which shall be used to hold the funds received by Trustee for use in the perpetual care,
maintenance and preservation of the lots and grounds of cemeteries and the repair and
renewal of buildings and property connected with and forming a part of cemeteries
("Cemetery Property").
2. Irrevocabilitv. This Perpetual Care Trust Agreement shall be irrevocable.
However, the Cemetery Operator and the Trustee, by a written instrument executed by
OR'GH\jL.L DOCUMEr,,'T FILED IN V.P,ut!
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both may amend this in any manner to (i) assure that it continues to meet the
requirements of laws and regulations governing the sale of Cemetery Property, or (ii)
provide for more efficient investment or administration of the trust provided such
amendment does not cause the trust to fail to meet the aforesaid requirements.
3. Contributions. The Cemetery Operator shall contribute to this Trust such.
amounts as it is required to deposit under the laws, rules and regulations which control
the maintenance and care of cemeteries in the Commonwealth of Pennsylvania. The
Trustee is under no obligation to ascertain whether the funds so deposited by the
Cemetery Operator are in amounts required by those laws, rules and regulations or to
enforce the contribution thereof.
4. Disbursement ofIncome. The Trustee shall hold all funds IN TRUST, and
the Trustee shall invest and reinvest those funds and distribute the income and principal
as follows:
a. On a monthly basis (or otherwise to the extent the Trustee and the
Cemetery Operator so agree), the Trustee shall distribute the net income earned by the
Trust to the Cemetery Operator to be used for the perpetual care and maintenance ~fthat
cemetery.
b. The principal shall remain in Trust in perpetuity.
5. Recoupment of Excess Distributions. Notwithstanding anything contained
herein to the contrary, the Cemetery Operator shall not receive any amounts from the
trust which amounts are in excess of those amounts permitted to be distributed under the
laws, rules or regulations of the Commonwealth of Pennsylvania. In the event that excess
amounts have been distributed to the Cemetery Operator from a' trust, the Cemetery
Operator hereby agrees to take any action which may be necessary to repay said
exces'sive distribution including but not limited to granting the Trustee the right to
withhold said excessive amount from any other funds due to the Cemetery Operator or
from the next distribution of income to be paid to be said Cemetery Operator hereunder.
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6. Representations and Warranties of the Cemeterv Operator.
a. The Cemetery Operator warrants and represents that it is a
corporation duly organized, and existing in good standing under the laws of the
Commonwealth of Pennsylvania, that its corporate officer executing this Agreement on
its behalf has been duly authorized to enter into this Trust Agreement for the purposes set.
forth herein.
b. The Cemetery Operator, for itself, its successors and aSSIgns
hereby authorizes the Trustee as necessary from time to time to deal with and handle the
funds of the Trust so as to conform to or comply with any law, rule, regulation or decree
relating to the subject matter hereof, irrespective of the provisions hereof or of any
Agreement.
c. The Cemetery Operator for itself, its successors and assigns hereby
warrants that Trustee has no obligation to see to that the Cemetery Operator properly uses
the income distributed hereunder for the perpetual care, maintenance and preservation of
the Cemetery Property.
7. Representations and Warranties ofthe Trustee.
a. The Trustee shall file financial reports with the Orphans' Court
Division of the Court of Common Pleas and such other reports as required by laws of the
Commonwealth of Pennsylvania. In the preparation of these reports, the Cemetery
Operator shall provide to the Trustee all assistance reasonably necessary to file complete
and accurate reports.
b. The Trustee shall be responsible for filing all Federal and State
income tax returns which are required to be filed. In that regard, the Cemetery Operator
shall provide to Trustee such information and assistance as is reasonably necessary to file
complete and accurate returns.
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c. The Trustee agrees to perform such duties as are specifically set
forth herein. No implied covenants or obligations shall be deemed to be imposed upon
the Trustee.
8. Powers of Trustee. The Trustee shall have the following powers:
a. To retain as an investment for the trust estate any and all property.
received by the Trustee. This authority shall specifically include the authority to retain
any stock received by it hereunder in PNC FINANCIAL SERVICES GROUP, or its
successors, and the authority to act with respect to the same as if it were stock of any
other corporation, notwithstanding the fact that PNC BANK, NATIONAL
ASSOCIATION or any successor thereto, shall be Trustee hereunder.
b. To invest and reinvest the principal of the trust estate, together
with any income accumulated thereon, in all forms of property, including but not limited
to common trust funds maintained by the Trustee or any of its bank affiliates, stocks,
bonds and other evidences of indebtedness, and securities including any of those which
are underwritten by PNC BANK, NATIONAL ASSOCIATION or any of its affiliates,
whether individually or as a member of a divided or undivided syndicate, participation in
registered investment companies including those for which the Trustee or any of its
affiliates provide services for additional compensation, whether as custodian, transfer
agent, investment advisor or otherwise (the Cemetery Operator acknowledges that such
participations are not bank deposits and are not insured by, guaranteed by, obligations of,
or otherwise supported by the United States of America, the Federal Deposit Insurance
Corporation, or any bank), and interest-bearing deposits in a bank or other financial
institution under state or federal supervision, including the Trustee's banking department,
without restriction to legal investments and without regard to diversification; to exchange
or lease for any period of time any real or personal property and to give options for sales,
exchanges and leases; to exercise all rights of security holders; to compromise any claim
or controversy without court approval; to borrow money from any source, including PNC
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BANK, NATIONAL ASSOCIATION; to delegate record keeping to the Cemetery
Operator and to delegate discretionary powers; and to make distribution in cash or in
kind.
c. To purchase and sell securities through any broker and brokerage
firm the Trustee may select, including any brokerage operation affiliated with or
conducted by PNC BANK, NATIONAL ASSOCIATION, PNC FINANCIAL
SERVICES GROUP, or any of their subsidiaries. The payment of the usual commissions
charged by such an affiliated brokerage operation shall in no way reduce or otherwise
affect the Trustee's compensation as hereinafter provided for.
d. To register or carry any investments held by it hereunder in its own
name or In the name of a nominee or nominees; provided, however, that all such
investments shall be so designated upon the records of the Trustee that the trust to which
they belong shall appear clearly at all times.
9. Investment Advisor. The Cemetery Operator may from time to time
select, by an instrument in writing signed by a duly authorized officer and delivered to
the Trustee, a person or firm to act as an investment advisor hereunder in respect of the
Trust or any part thereof. Any investment advisor so selected may in like manner be
removed at any time and another investment advisor appointment concurrently therewith
or at any time subsequent thereto. As used herein, an investment advisor may but need
not be a securities broker or registered representative with whom or which an investment
account is established.
So long as an investment advisor is acting hereunder, the Trustee shall
invest the Trust or the designated part thereof only in accordance with the instructions of
the advisor. The Trustee shall be under no duty to question any such instruction, and
during "the period in which the advisor is acting hereunder, to review or to make any
recommendations to any person regarding the retention, sale, or any matter whatsoever,
and the Trustee shall not be liable for any action or failure to act resulting from
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compliance with such instructions and shall be indemnified and saved harmless from the
Trust from and against any and all liabilities to which the Trustee may be subject by
reason of any such action or failure to act, including all expenses reasonably incurred in
its defense.
The advisor shall be entitled to receIve such compensation for services
rendered hereunder as may customarily be paid to investment advisory firms or securities
brokers or registered representatives, as the case may be.
10. Statements. The Trustee shall on a monthly basis furnish the Cemetery
Operator with statements. All such statements shall be in a form produced by the
Trustee's automated accounting system and shall contain such additional information, to
the extent available without imposing unreasonable expense or effort on the part of the
Trustee, so as to enable the Cemetery Operator to comply with any reporting obligations
which may be imposed by any government agency with authority or control over the
subject matter of this Trust. Upon the expiration of ninety (90) days from the date of
filing any account, or upon the earlier specific approval of the Cemetery Operator, the
Trustee shall be forever released and discharged from all liability and accountability to
the Cemetery Operator with respect to the propriety of its acts and transactions shown in
such account, except to such acts or transactions which the Cemetery Operator objects to
in writing within such ninety (90) day period.
11. Fees. The Trustee shall be entitled to fees for services it is provided
hereunder according to the written agreement between the parties, as amended from time
to time.
12. Signatures. The Trustee may rely absolutely upon the genuineness of any
signature or purported signature appearing to that of the Cemetery Operator, or any
persons; firms or entities claiming by, through or under it and upo'n any instruction,
notice, relief or receipt of other document delivered to the Trustee pursuant to the terms
and provisions hereunder, under the Contract ancl/or Certificate.
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13. Effect. The terms of this Trust Agreement shall be binding upon the
parties hereto with respect to all matters set forth herein including but not limited to the
disbursement of funds held pursuant to the Trust, the administration of the Trust and the
Trustee's obligation and liabilities with respect thereto.
14. Indemnity. The Cemetery Operator hereby agrees to indemnify Trustee
and hold the Trustee harmless from any and all claims, liabilities, costs, expenses and
counsel fees arising out of or incurring in connection with this Trust Agreement, and
claims arising out of the acts or omissions of predecessor trustees with respect to any pre-
existing Trust or other fiduciary arrangement, unless such claim or suit is based on the
willful misconduct, gross negligence or bad faith of the Trustee. The Trustee may
consult with the counsel of its own choosing with respect to the performance of its
obligations hereunder and the Trustee may act upon any written advice tendered by such
counsel, with such advice being conclusive proof for purposes of this Trust of the
reasonableness of the action taken by the Trustee in reliance thereon.
15. Termination. This Agreement may be terminated by either party by one
party giving the other party thirty (30) days written notice thereof. Any such termination
shall be effective upon the transfer all trusts held pursuant to this Agreement to a
qualified successor corporate trustee. Neither party may assign its rights, duties and/or
obligations under this Trust without prior written consent of the other party, which
consent may be withheld for any reason whatsoever.
16. Notices. Any and all notices required or permitted by this Agreement
shall be made in writing and shall be deemed to have been given if delivered or mailed,
postage prepaid, first-class mail as follows:
To PNC:
PNC Bank, National Association
620 Liberty A venue
Two PNC Plaza - 25th Floor
Pittsburgh, P A 15222
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To:
Riverview Memorial Gardens
3776 Peters Mount Road
Hallisax, P A 17032
17. Integration. This Agreement constitutes the entire agreement and
understanding between the parties with respect to the subject matter contained herein and
supersedes all prior agreements between the parties pertaining to the subject matter
hereof and the terms hereof may not be amended, revoked, rescinded or altered in any
fashion except by a writing executed by all the parties hereto.
18. Governing Law. This Agreement shall be governed and construed III
accordance with the laws of the Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, the parties hereto have set unto this document their
hand and seal the date and year first above written.
ATTEST:
RIVERVIEW MEMORIAL GARDENS
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By:
ATTEST:
PNC BANK, NATIONAL ASSOCIATION
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COMMONWEAL TH OF PENNSYLVANIA
COUNTY OF ALLEGHENY
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On this, the () day of
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, 20 cc, before me, the
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undersigned officer, personally appeared
acknowledged himself to be Vice President of PNC Bank, National Association, and that
as such Vice President, being duly authorized to do so, executed the foregoing instrument
for the purposes therein contained by signing the name of the Bank as Vice President.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
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NOTARY PUBLIC -
(SEAL)
My Commission Expires: J0. r..e... as i ~CO\
NC:2.i;.:-d Ss~1
Kathleen L. ., ~<':C"., :~...'-':;:::
Pittsburgh. ' .~'~:- -.' ~.... 'r"','
My Con.,r,~:~"r'!.: .>'-_...J
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COMMONWEALTH OF PENNSYLVANIA
COUNTY OF BUCKS
On this, the 26th day of October, 2000, before me, the undersigned officer,
personally appeared Frank Milles, who acknowledged himself to be Vice
President of Riverview Memorial Gardens, and that as such corporate officer,
being duly authorized to do so, executed the foregoing instrument for the
purposes therein contained by signing his name as Vice President.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
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My Commission Expires:
NOTARIAL S
Antonia J. Foster EAL
M Sensalem Twp SNOlary PUblic
y Commission E ", " UCks County
X:P1res; JUly 1, 2002
. I hereby c~rtify that the following is a true and correct
I . copy of e ori' document.
I
,'. Nina B. Stryker, Es ire
Attorney LD. #36531
ASSIGNMENT OF AND AMENDMENT To
CARE FUND TRUST AGREEMENT PERPETUAL CARE TRUST AGREEMENT
THIS ASSIGNMENT AND AMENDMENT ("Assignment and Amendment") is
made as of September 14th, 2004, with an Effective Date as hereinafter provided by and among
CORNERSTONE FAlvlILY SERVICES, We. ("CFSr'), Riverview Memorial Gardens LLC
("Parent"), Riverview Memorial Gardens Subsidiary LLC ("Subsidiary") and PNC Bank,
National Association ("Trustee").
WHEREAS, Parent is the legal successor to Riverview Memorial Gardens
Subsidiary LLC d/b/a Riverview Memorial Gardens ("Trustor") by merger of Parent into a
Pennsylvania limited liability company under 15 Pa. Cons. Stat. S 8901 et. seq. ("Merger");
WHEREAS, CFSI, on behalf of Trustor, and Trustee entered into a [care fund
trust agreement] / [perpetual care trust agreement] for sales of burial lots and services by Trustor,
dated as of 1\- 9, - 00 (the "Trust Agreement"); and
WHEREAS, as successor to Trustor, Parent wishes to assign certain rights and
obligations of Trustor to Subsidiary to enable Subsidiary to assume certain rights and duties of
Trustor; and
WHEREAS, as successor to Trustor, Parent wishes to amend the Trust Agreement
to provide that Parent shall have the exclusive obligation under the Trust Agreement to make
contributions to the Trust; and
WHEREAS, the Board of Directors of the Trustor by unanimous written consent
approved, prior to the Merger, the actions established by this Assignment and Amendment and
such approval bas been adopted, ratified and confirmed by the sole member of Parent.
NOW THEREFORE, in consideration of the premises and the mutual promises
contained herein, and intending to be legally bound hereby, the Trust Agreement is hereby
assigned and amended as follows, effective on the Effective Date as hereinafter provided:
1. "Cemetery Operator assigns all of its right, title and interest in the Trust
Agreement to Subsidiary. Subsidiary accepts such assignment and agrees to be bound by the
terms oftbe Trust Agreement as amended by the terms hereof. Parent and Subsidiary agree to
fully cooperate with each other in carrying out the intents and purposes ofthis Assignment and
Amendment."
2. All references to "Cemetery Operator" in the Perpetual Care Trust
Agreement shall be deemed to mean the Subsidiary (as defined above), except as otherwise
provided below in Sections 3 and 4.
3. In tbe following sections, all references to "Cemetery Operator" shall be
deemed to mean the Parent (as defined above):
WHEREAS, clauses 1 and 2.
109495.00113/1132673] vJ
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Section 2 - Line 2.
Section 3 - Lines 1 and 5.
Section 4(a) - Line 2.
Section 6(b) - Line 1.
Section 6(c) - Line 1.
Section 8(b) - Line 9.
Section 10 - All references to "Cemetery Operator."
Section 12 - Line 2.
4. In the following sections, all references to "Cemetery Operator" shall be deemed
to mean the Parent and the Subsidiary (as defined above):
Section 6(a)
Section 7(a) - Line 3
Section 7(b) - Line 2
Section 8(b) - Line 18
Section 9 - Line 1
Section 14 - Line 1
5. Section 1 is deleted in its entirety and replaced with the following language:
"A predecessor of Parent has hereby established a trust account (the
"Trust"), which shall be used to hold the funds received by Trustee for use in the perpetual care,
maintenance and preservation of the lots and grounds of cemeteries and the repair and renewal of
buildings and property connected with and forming a part of cemeteries ("Cemetery Property")."
6. The Effective Date of this Assignment and Amendment shall be the effective date
of that certain Transfer Agreement between Parent and Subsidiary (the "Transfer Agreement").
7. Except as provided above, the terms and conditions ofthe Preneed Cemetery
Merchandise Trust Agreement shall remain in full force and effect.
J 09495.00 I 13/l 1326731vl
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IN WITNESS WHEREOF, CFSI, the Parent, Subsidiary and the Trustee have
caused this Amendment to be executed as of the day and year first written above.
CORNERSTONE FAMILY SERVICES, INe.
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Riverview Memorial Gardens LLC
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By' A./?~/~
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Vice President
Riverview Memorial Gardens Subsidiary LLC
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By: ,;:::i~//?-~b
Vice Presidd1t
ACCEPTED, this R day of Sep.f'tY\bc7r, 2004
PNC Bank, National Association
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[END OF EXECUTIONS]
109495.001 ]3/11326731\'1
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Court of Common Pleas of Cumberland County-Orphans' Court Division
COMMONWEAL TH OF PENNSYL VANIA
RIVERVIEW MEMORIAL GARDENS
CEMETERY PERPETUAL CARE FUND
TRUST, Settlor
No.
To
PNC BANK, N.A., Trustee
TO:
Riverview Memorial Gardens Michael T. Forrester, Esquire PNC Bank, N.A., Trustee
Cemetery, Settlor Chief Deputy Attorney c/o Kathleen Singleton
c/o Stonemor Partners L.P. General 620 Liberty Avenue
ATTN: Linda Punturiero, Commonwealth of P A Two PNC Plaza, 25th Floor
Trust Department Charitable Trusts and Pittsburgh, P A 15222
155 Rittenhouse Circle Organizations Section
Bristol, PA 19007 Strawberry Square
Harrisburg, P A 17120
NOTICE
You are hereby notified that the accountant has filed a First and Interim Account
and a petition for adjudication of all real and personal property of the aforementioned
perpetual care cemetery trust in the Office ofthe Clerk of the Orphans' Court of the
County Cumberland, Cumberland County Courthouse, 1 Courthouse Square, Carlisle,
Pennsylvania 17013, to be placed on the audit list for November 22,2005. Copies of
these documents are attached.
If you object to any portion of the account or petition for adjudication, you must
file objections by 9:00 A.M. on November 22, 2005, the date the account and petition for
adjudication will be confirmed by the Clerk ofthe Orphans' Court. You are hereby
warned that ifno objections are filed, the account and petition for adjudication will be
confirmed and distribution will be made in accordance with the statement of proposed
661354
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distribution, attached to the petition. If you have any questions concerning this notice,
you should contact your attorney or the accountant's attorney.
Date: 10/18/05
Nina B. Stryker #36531
Counsel for the Accountant
1617 JFK Boulevard
Philadelphia, P A 19103
Address
(215) 665-3057
Telephone number
661354