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HomeMy WebLinkAbout12-12-05 IN RE: MILDRED J. GERBER TRUST UNDER AGREEMENT DATED DECEMBER 19, 1997 : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : ORPHANS' COURT DIVISION : NO. 21-2002-0540 IN RE: FRED E. GERBER, SR. TRUST DATED JULY 29,1994 : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : ORPHANS' COURT DIVISION : NO. 21-1998-0195 NOTICE TO PLEAD TO: PETITIONER MARILYN J. GERBER YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED PRELIMINARY OBJECTIONS WITHIN TWENTY ( 20 ) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. Ichard C. Rupp Sup. Ct.ld.No 34832 355 N. 21st Street, Ste 201 Camp Hill, PA 17011 717-761-3459 Attorneys for Respondent Frederick E. Gerber, II - I ,- f f ,- e l-- (~ 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 IN RE: 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, SR., TRUST UNDER AGREEMENT DATED JULY 29,1994 : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : ORPHANS' COURT DIVISION : NO. 21-1998-0195 IN RE: ESTATE OF FRED E. GERBER, SR. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : ORPHANS' COURT DIVISION : NO. 21-1998-0195 PRELIMINARY OBJECTIONS PREliMINARY OBJECTIONS OF RESPONDENT FREDERICK E. GERBER II h TO PETITION OF MARILYN J. GERBER TO "EMERGENCY PETITION TO ENFORCE AND STAY THE PERSONAL PROPERTY OF MARILYN GERBER AND PROPERTY FROM THE MILDRED J. GERBER ESTATE, PETITION TO ENFORCE THE GERBER FAMILY SETTLEMENT AGREEMENT, DATED SEPTEMBER 9, 2005 AND THE STATE OF DISPOSITION OF ALL TANGIBLE PERSONAL PROPERTY OF MILDRED J. GERBER AND FRED E. GERBER SR. 1 UNTIL THE PERSONAL PROPERTY OF MARILYN J. GERBER AND THE AGREED PROPERTY FROM THE STATED ESTATE DOES VERIFIED BY PETITIONER WITH A THIRD PARTY WITNESS, PETITION THAT ALL THE REMAINING AND STATED UNWANTED TANGIBLE PERSONAL PROPERTY OF THE MILDRED J. GERBER ESTATE BE AWARDED TO MARILYN J. GERBER AS DAMAGES FOR VIOLATION OF THE GERBER FAMILY AGREEMENT". AND NOW comes Respondent Frederick E. Gerber, II, by and through his Attorneys, Rupp and Meikle and Richard C. Rupp, Esq. and responds to the Petition of Marilyn J. Gerber with preliminary obiections as fallows: I. PRELIMINARY OBJECTION ON GROUNDS OF SCANDALOUS AND lOR IMPERTINENT MATTER: 1. By agreement of all parties interested in the above referenced Trusts and Estates, Fred E. Gerber II was caused to be appointed or remain as the Trustees and Executors of the above referenced Trusts and Estates. Frederick E. Gerber II is also a signatory to the Gerber Family Settlement Agreement dated September 9, 2005. 2. The Petitioner is Marilyn J. Gerber who is a signatory to the Gerber Family Settlement Agreement and Release dated September 9, 2005. 2 - 3. Marilyn J. Gerber's Petition hereinafter referred to as "The Petition" contains statements which are scandalous and or impertinent as the Petition's Statements failed to refer to or address specific provisions or clauses within the Gerber Family Settlement Agreement and Release. 4. The Petition further contains statements which are scandalous and/or impertinent as the Petition's statements fail to state any breach of the Gerber Family Settlement Agreement. 5. The Petition contains statements which are scandalous and/or impertinent as the Petition fails to state what provision or provisions of the Gerber Family Settlement Agreement should be enforced by this Honorable Court. WHEREFORE, Your Respondent Frederick E. Gerber respectfully requests the Petition of Marilyn J. Gerber be dismissed and stricken with prejudice. II. PRELIMINARY OBJECTION ON GROUNDS OF SCANDALOUS OR IMPERTINENT MATTER: 3 - 6. length. 7. Paragraphs 1 - 5 are incorporated herein as if set forth at The Petition contains statements which are scandalous and/or impertinent as the Petition fails to state any allegation of a breach of the Gerber Family Settlement Agreement in relation to any specific provision or specific clause of said Gerber Family Settlement Agreement and Release. 8. Said Petition's statements are further scandalous and/or impertinent as the said Gerber Family Settlement Agreement and Release specifically provides that the Agreement is the ENTIRE Agreement, such that there are no other Agreements, representations or warranties which are not stated in the Agreement. 9. Said Petition appears to be filed to serve no purpose but to impugn, harass and or embarrass the Respondent with no other bona fide or proper purpose. 10. Further, said Petition appears to deliberately increase the costs to the above captioned Trusts and Estates for no bona fide or proper purpose. 11. Said Petition should be dismissed and stricken with prejudice. 4 - WHEREFORE, Your Respondent Frederick E. Gerber II, respectfully requests the Petition of Marilyn J. Gerber be dismissed and stricken with preiudice. III. PRELIMINARY OBJECTION ON GROUNDS OF INSUFFICIENT SPECIFICITY: 12. Paragraphs 1 - 11 are incorporated herein as if set forth at length. 13. The Petition contains statements which are not specific and states no facts to meet the standard of relief the Petitioner request from this Honorable Court in the above captioned Trust matters and Estate Matters. 14. Said Petition appears to be filed to serve no purpose but to impugn, harass and or embarrass the Respondent with no other bona fide or proper purpose. 15. Further, said Petition appears to deliberately increase the costs to the above captioned Trusts and Estates of for no bona fide or proper purpose. 16. Said Petition should be dismissed and stricken with preiudice. 5 . WHEREFORE, Your Respondent Frederick E. Gerber II respectfully requests the Petition of Marilyn J. Gerber be dismissed and stricken with preiudice. IV. PRELIMINARY OBJECTION FOR LEGAL INSUFFICIENCY OF THE PETITION - "DEMURRER": 17. Paragraphs 1 - 16 are incorporated herein as if set forth at length. 18. The Petition does not state a cause of action against the Respondent as the Petition contains averments of matters specifically governed by the Gerber Family Settlement Agreement and Release which has been incorporated into an Order of This Court dated 19. Said Petitioners averments are new to the Gerber Family Settlement Agreement and Release and are therefore specifically excluded from being raised by the" Entire Agreement" clause in the Gerber Family Settlement Agreement. 20. The said Petition appears to be filed to serve no purpose but to impugn, harass and or embarrass the Respondent with no other bana fide or proper purpose. 6 . . , 21. Further, said Petition appears to deliberately increase the costs to the above captioned Trusts and Estates of for no bona fide or proper purpose. 22. The said Petition should be dismissed and stricken with preiudice. WHEREFORE, Your Respondent Frederick E. Gerber II respectfully requests the Petition of Marilyn J. Gerber be dismissed and stricken with preiudice. v. PRELIMINARY OBJECTION ON GROUNDS OF FAILURE TO CONFORM TO LAW OR RULE OF COURT: 23. length. 24. Paragraphs 1 - 22 are incorporated herein as if set forth at The Petition contains statements which fail to conform to Law or Rule of Court as follows: A. The Petition is not paragraphed in conformance with the Rules of Civil Procedure, PA RCP 1022; 7 B. The Petition fails to state one averment in each paragraph in conformance with the Rules of Civil Procedure, PA RCP 1 022; C. The Petition fails to state facts in a concise or summary form which prevents the Respondent from stating any relevant or meaningful replies; PA RCP 1022; D. The Petition fails to follow the statute to charge the Respondent as the Trustee or Executor with improper action with regard to the Gerber Family Settlement Agreement; E. The Petition fails to state a cause of action as the Petition raises matters not agreed upon by the parties in the Gerber Family Settlement Agreement nor were such matters incorporated into the Gerber Family Settlement Agreement. F. The Petition fails to state a cause of action as the new matters that the Petition now raises for this Court's consideration are excluded by the terms of the Gerber Family Settlement Agreement, specifically the clause in the Agreement called the "ENTIRE Agreement" Clause. 8 . . 25. Said Petition appears to be filed to serve no purpose but to impugn, harass and or embarrass the Respondent with no other bona fide or proper purpose. 26. Further, said Petition appears to deliberately increase the costs to the above captioned Trusts and the Estates for no bona fide or proper purpose. 27. Said Petition should be dismissed and stricken with preiudice. WHEREFORE, Your Respondent Frederick E. Gerber II respectfully requests the Petition of Marilyn J. Gerber be dismissed and stricken with preiudice. VI. PRELIMINARY OBJECTION ON GROUNDS OF FAILURE TO STATE CAUSE OF ACTION - DEMURRER: 28. Paragraphs 1 - 27 are incorporated herein as if set forth at length. 29. The Petition fails to state a cause of action against Respondent, Frederick E. Gerber II, with any legal sufficiencies as follows: 9 - A. The Petition makes averments which should not apply to the Trusts nor the Estates; B. The Petition fails to state any averments which allege that the Petitioner has suffered an actual or real loss at this time; C. Petitioner fails to state new averments legally sufficient to raise removal of Executor issues which Petitioner has previously raised and been denied; D. Petitioner fails to state new averments legally sufficient to raise freezing of trust assets issues which Petitioner has previously raised and been denied; E. Petitioner fails to state new averments legally sufficient to raise freezing of estate assets issues which Petitioner has previously raised and been denied; F. Petitioner fails to state averments legally sufficient to raise the issue of hiring a forensic CPA as opposed to allow the Auditor to continue to fulfill his responsibilities in reviewing the accounts of the Respondent and the obiections filed thereto; G. Petitioner fails to state averments legally sufficient to raise the issue of the Court's requiring a 10 psychiatric exam for the Respondent; 30. Said Petition appears to be filed to serve no purpose but to impugn, harass and or embarrass the Respondent with no other bona fide or proper purpose. 31. Further, said Petition appears to deliberately increase the costs to the Trusts and the Estates for no bona fide or proper purpose. 32. Said Petition should be dismissed and stricken with preiudice. WHEREFORE, Your Respondent Frederick E. Gerber II respectfully requests the Petition of Marilyn J. Gerber be dismissed and stricken with preiudice. IV. PRELIMINARY OBJECTION ON GROUNDS OF FAILURE TO STATE A CAUSE OF ACTION FOR AN INJUNCTION: 33. Paragraphs 1 - 32 are incorporated herein as if set forth at length. 34. The Petition seeks an iniunction with respect to certain tangible personal property. 35. The Petition does not allege that any loss has actually been 11 . . I . suffered by Petitioner or that any loss has actually occurred to any tangible personal property transferred from your Respondent Frederick E. Gerber II to the Petitioner. 36. If any loss had occurred to any tangible personal property as part of the exchange from the Respondent to the Petitioner such loss can be measured in damages in specific dollars. 37. Said Petition appears to be filed to serve no purpose but to impugn, harass and or embarrass the Respondent with no other bona fide or proper purpose. 38. Further, said Petition appears to deliberately increase the costs to the Trusts and the Estate of Mildred J. Gerber for no bona fide or proper purpose. 39. Said Petition should be dismissed and stricken with preiudice. WHEREFORE, Your Respondent Frederick E. Gerber II respectfully requests the Petition of Marilyn J. Gerber be dismissed and stricken with preiudice. 12 . . . . . . . , . ,. 1 , c VIII. PRELIMINARY OBJECTION FOR FAILURE TO STATE A CAUSE OF ACTION WHERE DAMAGES ARE SPECULATIVE: 40. Paragraphs 1 - 39 are incorporated herein as if set forth at length. 41. The Petition alleges that their may be possible damage to certain tangible personal property in the future but the petition fails to state that any actual damages have occurred. 42. The Petition alleges potential or future damages to certain tangible personal property and is therefore totally speculative and fails to state a cause of action with legal suHiciency. 43. Said Petition appears to be filed to serve no purpose but to impugn, harass and or embarrass the Respondent with no other bona fide or proper purpose. 44. Further, said Petition appears to deliberately increase the costs to the above captioned Trusts and Estates for no bona fide or proper purpose. 45. Said Petition should be dismissed and stricken with preiudice. 13 ~ . I . WHEREFORE, Your Respondent Frederick E. Gerber II respectfully requests the Petition of Marilyn J. Gerber be dismissed and stricken with preiudice. x. PRELIMINARY OBJECTION FOR LACK OF CONFORMITY TO LAW OR RULE OF COURT TO PLEAD FRAUD: 46. Paragraphs 1 - 45 are incorporated herein as if set forth at length. 47. The Petition ledges fraud by the Respondent against the Petitioner but fails to plead fraud in accordance with the Pennsylvania rules of Civil procedure, PA RCP 1019 (b). 48. Said Petition appears to be filed to serve no purpose but to impugn, harass and or embarrass the Respondent with no other bona fide or proper purpose. 49. Further, said Petition appears to deliberately increase the costs to the Trusts and above captioned Estates of for no bona fide or proper purpose. 50. Said Petition should be dismissed and stricken with preiudice. 14 . . ,. . . , I , WHEREFORE, Your Respondent Frederick E. Gerber II respectfully requests the Petition of Marilyn J. Gerber be dismissed and stricken with preiudice. XI. PRELIMINARY OBJECTION ON THE GROUNDS OF FAILURE TO STATE A CAUSE OF ACTION IN THAT THE PETITION ALLEGES A CONSPIRACY TO DEFRAUD PETITIONER BUT THE PETITION FAILS TO PLEAD A CONSPIRACY OR FRAUD IN ACCORDANCE WITH THE RULES OF CIVIL PROCEDURE: 51. Paragraphs 1 - 49 are incorporated herein as if set forth at length. 52. The Petition alleges there was a conspiracy against the Petitioner to defraud her but the Petition fails to plead any such alleged conspiracy or alleged fraud in accordance with the Pennsylvania Rules of Civil Procedure, PA RCP 1019 (b). 53. Said Petition appears to be filed to serve no purpose but to impugn, harass and or embarrass the Respondent with no other bona fide or proper purpose. 15 I . I , . .. . { 54. Further, said Petition appears to deliberately increase the costs to the above captioned Trusts and the Estates of for no bona fide or proper purpose. 55. Said Petition should be dismissed and stricken with preiudice. WHEREFORE, Your Respondent Frederick E. Gerber II respectfully requests the Petition of Marilyn J. Gerber be dismissed and stricken with preiudice. / , Sup.Ct..d.No 34832 355 N. 21st Street, Ste 201 Camp Hill, PA 17011 717-761-3459 Attorneys for Respondent Frederick E. Gerber, II 16 ~ . ... " . , , 1 .. " . VERIFICATION I, Richard C. Rupp, Esq. Am making this verification as the Respondent is out of the Court's Jurisdiction and is unavailable in time to file this pleading and verify that the statements in the foregoing document are true and correct to the best of my knowledge, information and belief. Said statements are based on my own knowledge, belief or information or information provided me. i I understand that false statements herein are made subiect to penalties of 18 Pa. C.S.A. * 4904 relating to unsworn falsification to authorities. Date: 12-/~ h,"-- ; / . . t -. , 11 .. . . CERTIFICATE OF SERVICE I, Richard C. Rupp, Esquire, do hereby certify that I am serving a true and correct copy of the foregoing document upon the persons names below by placing the same in the United States Mail, First Class, Postage Prepaid, on the date stated below: William A. Duncan, Esq. 1 Irvine Row Carlisle, PA 17013 Former Auditor Marilyn J. Gerber 717 Market Street, #317 Lemoyne, PA 17043 Joanne E. Book, Esq. Heather Z. Kelly, Esq. Rhoads & Sinon 1 South Market Square P.O. Box 1146 Harrisburg, PA 1 71 08 Jane N. Heflin 270 North Garfield Street Lombard, Illinois 60148 Jacqueline M. Verney, Esq. 44 South Hanover St. Carlisle, PA 17013 Sascha Gerber c/o Frederick E. Gerber, II 4247 Kearney Lane Fairfax, Virginia .. 4 . ...,. of . .. -;. ,. -- . .. Mischa Gerber c/o Frederick E. Gerber, II 4247 Kearney Lane Fairfax, Virginia Amanda Heflin 270 North Garfield Street Lombard, Illinois 60148 Sean Heflin 270 North Garfield Street Lombard, Illinois 60148 Stanley Laskowski, Esq. 3631 North Front Street Harrisburg, PA 17110 Ric ard C. Rupp, Esquir Attorney 1.0. # 34832 355 North 21st Street, Suite 201 Camp Hill, Pennsylvania 17011 (717) 761-3459 Date: ( 3~a;-