The URL can be used to link to this page

Home My WebLink About12-08-05 Joanne E. Book, Esquire Attorney J.D. No. 82028 Heather Zink Kelly Attorney LD. No. 86291 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box I I46 Harrisburg, P A 17108-1146 (717) 233-5731 Attorneys for PNC Bank, N.A. INRE: ESTATE OF MILDRED J. GERBER, An incapacitated person INRE: MILDRED 1. GERBER TRUST UNDER AGREEMENT DATED DECEMBER 19,1997 IN RE: FRED E. GERBER TRUST UNDER AGREEMENT, dated July 29, 1994 INRE: ESTATE OF FRED E. GERBER, SR., Deceased n I.~, r:.,l. r:. I l" II 0" J "" IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION : NO. 21-2001-92 : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : ORPHANS' COURT DIVISION : NO. 21-2002-0540 : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY : COMMONWEALTH OF PENNSYLVANIA : ORPHANS' COURT DIVISION : NO. 21-1998-0195 : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, 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: EMERGENCY PETITION TO ENFORCE AND STAY THE PERSONAL PROPERTY OF MARILYN J. GERBER AND THE PROPERTY FROM THE MILDRED J. GERBER ESTATE PETITION TO ENFORCE THE GERBER FAMILY SETTLEMENT AGREEMENT, DATED, SEPTEMBER 9,2005 AND TO STAY THE DISPOSITION OF ALL OF THE TANGIBLE PROPERTY OF MILDRED J. GERBER AND FRED E. GERBER, SR. UNTIL THE PERSONAL PROPERTY OF MARILYN J. GERBER AND THE AGREED PROPERTY FROM THE STATED ESTATES IS VERIFIED BY PETITIONER WITH A THIRD PARTY WITNESS 5lB343.1 pt. PETITION THAT ALL THE REMAINING AND STATED UNWANTED TANGIBLE PROPERTY OF THE MILDRED J. GERBER ESTATE BE AWARDED TO MARILYN J. GERBER AS DAMAGES FOR VIOLATION OF THE GERBER F AMIL Y AGREEMENT NOW COMES, PNC Bank, N.A. (hereinafter "PNC"), Guardian of the Estate of Mildred J. Gerber, an incapacitated person, and Trustee of the Mildred J. Gerber Trust under Agreement dated December 19, 1997, by and through counsel, Rhoads & Sinon LLP, and files this Answer to the above Petitions of Marilyn Gerber, as follows: 1. Denied. The Family Settlement Agreement and Release in the above captioned matter was signed by the first parties thereto on September 9, 2005, and was signed by the last party thereto on September 23, 2005. The Family Settlement Agreement and Release was filed with this Court on September 28, 2005. 2. Admitted. 3. Admitted. 4.-27. Denied. The remaining Paragraphs 4-27 of the Petition violate Pa. R. Civ. P. 206.1 (c) in that they contain more than one material allegation, and in some cases the paragraphs are over a page long. It is not possible for PNC to form a responsive pleading to the numerous allegations contained in these paragraphs. The same are therefore denied in their entirety. NEW MATTER 28. PNC was discharged and released from all liability with respect to the Estate of Mildred J. Gerber, an incapacitated person, and the Trust of Mildred 1. Gerber, by Order of this Court dated September 29,2005. 29. By that same Order, PNC was removed and released as Trustee of the Trust of Mildred J. Gerber, and PNC's Accounts of the Trust of Mildred J. Gerber and the Guardianship Estate of Mildred J. Gerber were confirmed. - 2 - 30. PNC has complied fully with the terms of the Family Settlement Agreement and Release. 31. PNC released all tangible personal property of the Guardianship Estate to Frederick E. Gerber II as evidenced by the Receipt and Release dated October 26, 2005, attached hereto as Exhibit "A". 32. All parties consented to the release of all such property to Frederick E. Gerber II pursuant to Paragraph 24(D) of the Family Settlement Agreement and Release. 33. Marilyn J. Gerber individually released PNC, as well as Frederick E. Gerber II, from all claims and liabilities regarding the Mildred J. Gerber Guardianship Estate and Trust pursuant to the Release executed by Marilyn J. Gerber attached to the Family Settlement Agreement and Release as Exhibit "F" thereto. 34. To PNC's knowledge, there has been no breach of the Family Settlement Agreement and Release. 35. PNC is released from all liability by the terms of the Family Settlement Agreement and Release and this Court's Order dated September 29,2005. 36. 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. 37. Ms. Gerber's claims are barred by res judicata and/or collateral estoppel. 38. Ms. Gerber's claims are barred by laches. 39. Ms. Gerber has failed to state a claim upon which relief can be granted. 40. Ms. Gerber's claims are barred, in whole or in part, by the doctrines of waiver and/or estoppel. - 3 - 41. Ms. Gerber's claims are barred, in whole or in part, by the doctrine of unclean hands. 42. Ms. Gerber's damages, if any, are caused by her failure to mitigate. 43. 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. 44. 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, and award PNC its legal fees in responding to the Petition. Respectfully submitted, RHOADS & SINON LLP By: ~ e E. Book ether Zink Kelly e South Market Square P. O. Box 1146 Harrisburg, PAl 71 08-1146 (717) 233-5731 Attorneys for PNC BANK, N.A. - 4 - VERIFICA nON 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. 1~/7 /()S- I Date ~ David A. Brown IN RE: ESTATE OF MILDRED J. GERBER, An incapacitated person IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA ORPHANS' COURT DMSION : NO. 21-2001-92 RECEIPT AND RELEASE KNOW ALL MEN BY THESE PRESENTS that the undersigned, FREDERlCK E. GERBER II, Executor of the Estate of Mildred J. Gerber, deceased, does hereby acknowledge receipt from PNC BANK, N.A., Guardian of the Estate of Mildred J. Gerber, an incapacitated person, of the following: All items of tangible personal property from the residence of Mildred J. Gerber in storage at Harrisburg Storage Company, New Cumberland, Pennsylvania, and all the items of jewelry and assorted items listed on the June 12, 2001, and July 25, 2001, appraisals from Claude C. Wolfe & Associates attached hereto as Exhibits "A" and "B" in satisfaction of the Family Settlement Agreement dated September 23, 1995, and the Court Order dated-September 29,2005 in the above-captioned matter. IN CONSIDERATION of said distribution, the undersigned does hereby release, remise, quit claim and forever discharge PNC Bank, N.A., of and from all actions, suits, payments, accounts, reckonings, claims and demands whatsoever for or by reason thereof, or any other account, matter, cause or thing whatsoever relating to the Guardianship Estate of the said decedent. AND the undersigned does hereby agree to indemnify and save harmless PNC Bank, N.A., to the extent of said distribution, against any and all loss; damage, costs, verdicts, judgments, awards and expenses which PNC Bank, N.A., may suffer, incur, be put to, payor layout by reason of having made distribution of said items to the undersigned, and the undersigned agrees to refund to PNC Bank, N.A., upon receipt of such a request from PNC Bank, N.A., any portion of the above distribution to which the undersigned is not properly entitled or which shall at any time be necessary to discharge any debt, 583039.1 expense or liability of the Guardianship Estate, including but not limited to any estate, inheritance, transfer or income tax. It is the intention of the undersigned to be legally bound by this instrument. IN WITNESS WHEREOF, the undersigned has caused this instrument to be executed on the ~ ( o--H" - day of OeJn be y .2005. WITNESS: ESTATE OF MILDRED J. GERBER, DECEASED (SEAL) II, Executor COMMONWEALTH OF PENNSYLVANIA COUNTYOF 6/??/~/~/,ld SS: On this, the C:S6 -# day of ~/I h.6r r , 2005, before me, a Notary Public in and for the said Commonwealth and County, personally appeared FREDERICK E. GERBER II, known to me (or satisfactorily proven) to be the person whose name is subscribed to the foregoing Receipt and Release and acknowledged that he executed the same for the purposes therein contained and desires that the same be recorded as such. WITNESS my hand and notarial seal. (SEAL) COMMONWEALTH OF PENNSYLVANIA Notarial Seal Denise C. Sullenberger, Notary Public Hampden Twp., Cumberland County My Commission Expires Dec. 1,2008. Member, Pennsylvania Association of Notaries EXHIBIT A ~_. CLAUDE C. VIOLFE & ASSOCIATES AUCTIONEERS &: APPRAISERS FAMILY OWNED SINCE 1912 2009 LINCOLN STREET. CAMP Hill, PA 17011 717-761-2763 June 12, 200 I Appraisal for Mildred J. Gerber, Guardianship - PNC Bank 623 Hilltop Road, New Cumberland, PA 17070 MISe. JEWELRY & ASSORTED ITEMS (2) Pearls 7+ mm each Blue costume pearl necklace Rosary beads, gold filled - worn Small box containing 6 charms Card with pressed flowers for Bethlehem 70.00 3.00 3.00 1.00 1.00 Newspaper clipping (6) Tie tacks Small piece of chain Clear pin Script pen from quill 1.00 2.00 1.00 1.00 1.00 Black jewelry box (3) Aluminum charms Rhinestone bracelet (12) Glass synthetic stones Smoky quartz stone 1.00 1.00 8.00 1.00 5.00 St. Augustine's School pin 1.00 APPRAISAL TOTAL $ 101.00 This Fair Market Value appraisal is true and correct to the best of my ability as an auctioneer and appraiser with 35 years experience. Member: Certified Appraisers Guild of America CLAUDE C. WOLFE & ASSOCIATES \.J. ,i,. {;) S' e-9- \"" <>-- W. K. "Dusty" Chapman, CAGA m 19 i' ~ ~ ~ 'l-I'I'~'I 71h)> EXHIBIT EXHIBIT B (LA\-. 2 C. ~VOLFE & ASSO" JES AUCTlONEEI,S 0.: AI'I'i.:^ISLl\~, FAM ILl' 0 WNED SINCL I Y!.' 2009 LINCOLN STREET. CAMP HILL, PA 17011 717-761-2763 Appraisal for Mildred Gerber 623 lIilHop Road, New Cumberland, PA 17070 MISe. LADY'S JE\VELRY & ASSORTED ITEMS I - 14K white gold .55ct center stone w/2 small side stones diamond ring 2 - 14K white gold wedding band - .1 Oct total diamond weight 3 - Rice from 1948 4 - Costume double strand pearl necklace - sterling clasp - broken 5 - Large smoky quartz, emerald cut (585 -14K) pendant 6 - Costume pearl & rhinestone brooch - 935 silver 7 - Filigree dagger & sheath pin (early clasp & hinge) 8 - Handmade frog brooch. from the Orient. Back is 14K, top is 18K gold 9 - 18K gold filigree butterfly brooch 10 - Rhinestone feather brooch - metal discolored and stones missing I I - 14K gold pendant/pin containing a good 10mm pearl on a gold chain 12 - 14K gold diamond pendant on a gold plated chain. .50ct. European cut center & (11) .88ct total weight side diamonds. Slightly tinted 13 - Italian 18K (750) figaro gold link bracelet 14 - Part ofa broken rhinestone bracelet 15 - 18K gold link bracelet with gemstones of amethyst, tounnaline, citrine, aquamarine & garnet. Pink gold with green gold overlay on some sections. 16 - Costume faux pearl necklace - double strand, rhinestone clasp I 7 - Loose faux pearls (7) 18 - Italian 14K gold necklace (smashed section) 19- 14K gold diamond Concord Watch Co. (334F) Swiss wrist watch 20 - Note from Emiko Kato 21 - Bell shaped plastic jewelry case 22 - Antique faux pearl hair pin 23 - 18K gold Helvetia - Swiss wrist watch - face damaged 24 - Silver (835) and marcasite dress clip 25 - Costume faux pearl earrings (one screw-on replaced) July 25, 200 I 650.00 80.00 1.00 1.00 85.00 25.00 25.00 350.00 90.00 1.00 350.00 475.00 75.00 1.00 750.00 10.00 1.00 15.00 125.00 1.00 1.00 15.00 45.00 35.00 2.00 g; '" EXHIBIT i ~ <3 ~ 1-jv~'/:JJzib CLAL ,Cc V/OlFE & ASSO, .rES AlI("TIUN u.:" ~ ^' ^ 1'1'1, t\ 1 S 1:1, S FAMI/.)' O\\'N!.:n Sltl'!..."/:" IYI,J 2009 LINCOLN STREET. CAMP Hill, PA 17011 717-761-2763 Gerber appraisal Page 2 of3 MISC~LLAN~OUS LADY'S JF,\VELRY AND ASSORTED ITEMS - Continued 26 - Sterling silver (935) and rhinestone brooch 27 - Sterling silver (935) and rhinestone duette clips 28 - Rhinestone earrings (one broken) 29 - 2 Cloisonne bird motif charms 30 - Platinum (900 - IIUD) diamond dinner ring. .75ct total weight. lower color in diamonds 31 - 10K gold large black onyx ring with cleat stone. Band is cut 32 - Palladium diamond cluster ring. 1.2ct total weight 33 - Asian 14K gold pearl cluster ring - nice luster 34 - Asian 14K gold pearl ring with 3 pearls 35 - 18K diamond solitaire 1.6ct. ring. Slight yellow color 36 - Silver (830) cuff ring with blue glass stones 37 - Silver (830) cuff ring with red glass stones (some missing) 38 - Early 1900' s shell cameo brooch 39 - Late 1800's shell cameo brooch 40 - 10K gold filigree brooch with blue stone 41 - Dish towel scrap 42 - Costume graduated faux pearl necklace with sterling silver clasp 43 - Double strand of faux pearls with pearl & silver clasp 44 - Japanese hand knotted blister pearl necklace with silver clasp 45 - Trifari faux pearl graduated necklace with rhinestone clasp 46 - Faux pearl graduated necklace (yellowed) with 14K white gold clasp 47 - 2 Grey jewelry boxes 48 - Blue jewelry box 49 - Green ring box 50 - Red satin jewelry roll 30.00 40.00 1.00 20.00 750.00 65.00 550.00 200.00 90.00 3,600.00 25.00 2.00 65.00 65.00 20.00 1.00 5.00 10.00 250.00 10.00 8.00 1.00 5.00 1.00 5.00 CLA~ r. C. VIOLfE & ASSO,- JIS AUCTIONLER:-> ,\. 1\J>J>RAl.'ilRS FAM ILl' () Il'NUJ SINCE 19/Z 2009 LINCOLN STREET' CAMP Hill, PA 17011 717-761-2763 ~.I 1? Gerber appraisal' Page 3 or J APPRAISAL TOTAL $ 9,028.00 This Fair Market Value appraisal is true and correct to the best of my ability as an auctioneer and appraiser with 35 years experience. Member: Certified Appraisers Guild of America CLAUDE C. WOLFE & ASSOCIATES . .~) '\J 'II> '---1- \. r . \J \ ~I ~J."'~ () '\ li.'-r'" ,-.... W. K. "Dusty" Chapman, CAGA n \ v CERTIFICATE OF SERVICE I hereby certify that on December 7-1-h, 2005, a true and correct copy of the Answer and New Matter of PNC Bank, N.A. served by U.S. mail, certified, return receipt requested, upon the following: Marilyn J. Gerber 717 Market Street, #317 Lemoyne, PAl 7043 and by U.S. mail, first class, postage pre-paid, upon the following: Jacqueline M. Verney, Esquire 44 S. Hanover Street Carlisle, PA 17013 Richard C. Rupp, Esquire Rupp and Meikle 335 North 21 st Street, Suite 205 Camp Hill, PA 17011 William A. Duncan, Esquire Duncan, Hartman & Douglas, P.c. One Irvine Row Carlisle, P A 17013 Mrs. Jane Heflin 270 N. Garfield Lombard, IL 60148 .lQ. "'~c;t-l\O .~~.- sfarmon Whitson 516513.1