HomeMy WebLinkAbout11-05-04 Part 1
.
.
?aula J. McDermott, Esquire
Attorney I. D. # 46664
Post & Schell, P.C.
240 Grandview Avenue
Camp Hill, PA 17011
(717) 612-6012
E-mail: pmcdermott@postschell.com
IN RE: ESTATE OF DAVID M.
GROSS
IN THE ORPHANS' COURT
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2103-1065
TO: THE HONORABLE JUDGE HOFFER
MEMORANDUM OF LAW IN SUPPORT OF MOTION IN LIMINE FOR SANCTIONS
FOR FAILURE TO RESPOND TO DISCOVERY REQUESTS
I. INTRODUCTION
Petitioner, Brian J. Gross through this Motion in Limine, respectfully requests and
seeks a Court Order precluding the Respondent, Elizabeth Barth from offering any
witnesses (other than herself) as well as the use of documents and exhibits at the time
of trial as a result of her failure to timely produce discovery responses, her failure to
provide a list of anticipated witnesses and proposed testimony and her failure to provide
a list of anticipated exhibits for use at trial.
II. FACTUAL AND PROCEDURAL HISTORY
Factually, this dispute arises out of the August 17, 2003 death of David Gross,
and the proposed distribution of proceeds obtained from a personal injury settlement in
11
'/I
'It:
v
4: _'
"....,
.
.
J..- ~
a matter currently pending in the Court of Common Pleas of Dauphin County,
Pennsylvania. After Mr. Gross' death, his mother, Ramona Gross, was appointed as
Administratrix of the David Gross Estate on December 26, 2003. Ramona Gross
subsequently died on February 4, 2004, leaving no personal representative of the David
Gross Estate.
On or about April 20, 2004, in a clear attempt to obtain possession of the
aforementioned settlement proceeds, Elizabeth Barth, posing as Mr. Gross' common
law wife, filed a Petition to Revoke Letters of Administration and requested Letters of
Administration to be issued to Elizabeth Barth as David Gross' surviving spouse. Based
upon the fraudulent misrepresentations contained therein, Elizabeth Barth was
ultimately appointed Administratrix of the David Gross Estate.
On or about May 11, 2004, Brian J. Gross, the brother of the decedent and the
...
son of Ramona Gross, filed this Petition for Revocation of Letters and Removal of
Administratrix, Elizabeth Barth, inasmuch as she fraudulently and illegally obtained
control of the Estate because she was not the surviving spouse of the late David Gross.
On or about April 27, 2004, Elizabeth Barth filed her Response to the Petition, and a
hearing/trial was originally scheduled in this matter for Monday, October 4, 2004.
However, by Order dated October 1, 2004, the hearing/trial was continued until
November 8,2004.
Over three and one-half months prior to trial, on June 16, 2004, Brian J. Gross
served discovery requests, including a Request for Production of Documents and
Interrogatories to the Respondent, Elizabeth Barth. Pursuant to the applicable Rules of
Civil Procedure, the answers and responses to the discovery requests were due on July
2
-- )
.
.
16, 2004. At some point subsequent to July 16, 2004, counsel for Respondent,
Elizabeth Barth, requested an extension of time to answer the discovery requests. Not
having received the discovery responses as promised and as required, by letter dated
July 28, 2004, the undersigned counsel for Petitioner demanded Respondent's counsel
to answer properly the outstanding Interrogatories and Requests for Production of
Documents.
Despite not having received the requested discovery answers and responsive
documents, Petitioner nonetheless took the deposition of Elizabeth Barth on August 13,
2004. Thereafter, on or about September 30, 2004, only four days prior to the time of
the first scheduled hearing, Petitioner filed the within Motion in Limine seeking the
preclusion of Respondent's use of documents/exhibits at the time of trial (not including
those referenced or otherwise used in her deposition) together with the preclusion of
additional witness testimony inasmuch as such information was not provided
appropriately. As noted above, by Order dated October 1, 2004, this Honorable Court
continued the hearing in this matter until November 8, 2004.
Despite being provided an extension of time to respond and despite being
provided additional time as a result of the continuance of the hearing, Respondent
nonetheless failed to provide and serve her Answers to Interrogatories and Requests for
Production of Documents upon the Petitioner until October 20, 2004.1 Respondent
produced her discovery responses more than three months after their initial due date
and only two weeks prior to trial. Moreover, the substantive information contained
1 True and correct copies of the Interrogatories and Requests for Production of
Documents, together with the Answers and Responses thereto are attached hereto and marked as
Exhibits "A," "B," "C," and "D," respectively.
3
- ,
.
.
..
therein is woefully insufficient in that, among other items, Respondent has failed to
identify the names, address and anticipated testimony of her proposed witnesses and
has failed to identify what documents/exhibits she anticipates using at trial.
Accordingly, as a sanction for her use of such "surprise tactics" and her attempts
to conduct a "trial by ambush", Brian J. Gross respectfully seeks the preclusion of any
anticipated witness testimony or use of documents/exhibits at the time of trial, except for
the testimony of Respondent herself and the documents referred to and used in her
deposition. This Memorandum of Law is respectfully submitted in support of the
pending Motion in Limine for Sanctions for failure to respond to discovery requests.
III. ISSUE PRESENTED
WHETHER RESPONDENT, ELIZABETH BARTH SHALL BE PRECLUDED
FROM OFFERING ANY DOCUMENTS AND WITNESSES AT THE TIME OF TRIAL
EXCEPT FOR HER OWN TESTIMONY AND THOSE DOCUMENTS EXCHANGED
AND USED DURING HER DEPOSITION AS A RESULT OF. HER PAILURE TO
PROVIDE SUFFICIENT AND TIMELY DISCOVERY RESPONSES PURSUANT TO
THE APPLICABLE PENNSYLVANIA RULES OF CIVIL PROCEDURE?
Suggested answer: Affirmative.
IV. DISCUSSION/ARGUMENT
Respondent, Elizabeth Barth, should be prohibited from offering any testimony,
other than her own, and from offering any documentary evidence, other than the
documents referenced in her deposition testimony, as a direct sanction for failing to
timely produce sufficient responses to Petitioner, Brian J. Gross' discovery request.
As this Court is well aware, Rule 4006 of the Pennsylvania Rules of Civil
Procedure requires a party to answer or object to an opposing party's interrogatories
within thirty (30) days of service. Rule 4006 further requires that each interrogatory be
answered fully and completely unless objected to. In this case, Respondent served her
4
~ ,
.
.
..
Answers to Interrogatories and her Response to Request for Production of Documents
only two weeks prior to trial, the same of which were over three months late. Moreover,
despite the untimeliness of said responses and the corresponding prejudice caused
thereby, the Answers to Interrogatories were factually incomplete and lacked the
necessary substance required by the Rules of Civil Procedure to such a degree that
appropriate sanctions are absolutely called for.
Indeed, in response to Petitioner's Request for Production of Documents,
Respondent simply made four banker boxes of notes, cards, memos, letters and other
documents available for inspection and when requested to provide a list of her
anticipated trial exhibits, Respondent had the audacity to respond, "Elizabeth Barth
intends to use as exhibits the Affidavit of Common Law Marriage, and the cards, letters
and notes that had been supplied in response to Request for Production of Documents."
See, Respondent's Answers to Interrogatories, No.6 attached hereto and marked as
Exhibit "C." Certainly identifying one or all documents contained within four separate
boxes, the same of which were only produced several days before trial, does not
comply with the letter or spirit of the Rules of Civil Procedure which were designed, in
part, to dissuade such surprise tactics. Not to limit herself to such a flagrant violation of
the Rules of Civil Procedure, when asked to identify her trial witnesses, Respondent
stated, "Elizabeth Barth intends on calling herself and cross-examining members of the
Gross family. In addition, Elizabeth may call anyone who authored any of the cards or
notes that had been supplied in the Response to Request for Production of
Documents." See, Respondent's Answers to Interrogatories, No.6, a true and copy of
which is attached hereto and marked as Exhibit "D." Again, Respondent's failure to
5
,~ .\
.
.
"
provide a sufficient and complete response to the basic question of who she intends to
call as a witness at the time of trial cannot be condoned by this Court.
After review of the above-noted Answers to Interrogatories, Petitioner, as well as
any other person who would review such responses, is completely unaware of what
testimony, what witnesses and what documents/exhibits will be offered at the time of
trial. Accordingly, as a result of such a failure and outright refusal to provide substantive
responses to Petitioner's Interrogatories, Petitioner requests this Honorable Court to
use its given discretion and sanction Respondent for such actions by precluding and
prohibiting her from offering any testimony or documentary evidence other than herself
and those documents referenced or otherwise used during her deposition.
Pursuant to Rule 4019 of the Pennsylvania Rules of Civil Procedure, this Court is
empowered to impose sanctions for failure to answer discovery requests as well as for a
~<
failure to properly respond to a request for production of documents. Indeed, under
Rule 4019, this Court has the authority to issue an Order refusing to allow the
disobedient party to support or oppose designated claims or defenses or prohibiting
such a party from introducing in evidence designated documents, things or testimony, or
from introducing evidence of physical or mental condition. Petitioner respectfully
requests that such a sanction be imposed upon the Respondent, Elizabeth Barth.
Moreover, as this Court is well aware, when a discovery sanction is imposed, the
sanction must be appropriate when compared to the violation of the rules. Thompson v.
Rovallnsurance, 521 A.2d 936 (Pa. 1986). In this regard, Petitioner contends that his
request for sanctions, which would effectively prohibit and preclude Respondent from
offering any other evidence other than her own testimony and the documents referred to
6
, J
.
.
"
and used in her deposition, is reasonably limited in scope and certainly appropriate
under the circumstances. This is not a case in which the Petitioner is seeking the
outright dismissal of the case as a result of the aforementioned violations. Rather,
Petitioner is merely seeking the preclusion and prohibition of witness testimony and
documents not previously identified before trial.
This Court's review of the several factors that must be considered when
determining an appropriate sanction for discovery violations will render abundantly clear
that the violation of the applicable rules of procedure was knowing and willful, and that
the effect of such violations certainly prejudices Petitioner. At this point, Petitioner is
completely uninformed as to whom the respondent intends to call at the time of trial,
what proposed testimony will be presented at the time of trial, and what documentary
evidence will be presented at the time of trial. Moreover, given the unreasonable delay
in providing even this basic information, Petitioner has been, in essence, precluded from
seeking any further deposition testimony of any witnesses that may (or in this case -
may not) have been previously disclosed. Finally, the effect of the violations of the
Rules of Civil Procedure as aforementioned cannot be cured inasmuch as trial is
scheduled to take place within only two(2) business days of the date in which
Respondent made her document production available for inspection and review. See,
Judqe Technical Services. Inc. v. Clancv, 813 A.2d 879 (Pa. Super. 2002); Pioneer
Commercial Fundinq CorP. v. American Financial Mortqaqe Corp., 797 A.2d 269 (Pa.
Super. 2002).
As noted above, Respondent's actions and willful violation of the Pennsylvania
Rules of Civil Procedure should not and cannot be condoned by this Court. As a result
7
.
.
thereof, Respondent should be prohibited from offering any testimony, other than her
own, and further precluded from offering any documentary evidence, other than the
documents referenced in her deposition testimony, as an appropriate sanction.
v. CONCLUSION
For the foregoing reasons, Petitioner Brian J. Gross respectfully requests this
Honorable Court to grant its Motion in Limine precluding Respondent, Elizabeth Barth
from producing any documentation, witnesses or testimony at the hearing in this matter
other than her own testimony, and the documents referenced or used in her deposition.
Respectfully submitted,
POST & SCHELL, P.C.
r~?ltu,.~~
AULA .r'MCOERM ,E QUIRE
Attorney 1.0. # 46664
240 Grandview Avenue
Camp Hill, PA 17011
(717) 612-6012
Attorneys for Petitioner, Brian J. Gross
Date: November 5, 2004
8
EXHIBIT A
I .,
.
.
IN RE: ESTATE OF DAVID M.
GROSS
IN THE ORPHANS' COURT
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2103-1065
INTERROGATORIES OF PETITIONER BRIAN JOHN GROSS DIRECTED
TO RESPONDENT ELIZABETH BARTH
TO: Elizabeth Barth
c/o James Nealon, Esquire
Nealon & Gover
2411 North Front Street
Harrisburg, PAl 711 0
PLEASE TAKE NOTICE that you are hereby required, pursuant to Pa. R. Civ. P. 4006,
as amended, to serve upon the undersigned a copy of your individual answers and objections, if
any, in writing and under oath, to the following Interrogatories within thirty (30) days after
service of the Interrogatories. The Answers shall be inserted in the space provided. If there is
insufficient space to answer an Interrogatory, the remainder of the Answer shall follow on a
supplemental sheet.
These shall be deemed to be continuing Interrogatories. If, between the time of your
Answers and the time of the trial of this case, you or anyone acting on your behalf, learn of any
further information not contained in your Answers, you shall promptly furnish said information
to the undersigned by Supplemental Answers.
POST & SCHELL, P.e.
Date: June I ~, 2004
f~~l1\i-c~
Paula J. McD ott, EsqUIre
Attorney I.D. No. 46664
240 Grandview Avenue
Camp Hill, P A 17011
(717) 731-1970
Attorneys for Plaintiff
.
.
INSTRUCTIONS/DEFINITIONS
The following instructions and definitions form an integral part of these interrogatories,
and the interrogatories are to be read in accordance with these instructions and definitions.
I. "Document": The term "document" means any written, printed, typed, or other
graphic matter of any kind or nature, however produced or reproduced, whether
sent or received or neither, including drafts and copies bearing notations or marks
not found on the original, and includes, but is not limited to:
(a) all contracts, agreements, representations, warranties, certificates,
OpInIOnS;
(b) all letters or other forms of correspondence or communication,
including envelopes, notes, telegrams, cables, telex messages,
messages (including reports, notes, notations and memoranda of or
relating to telephone conversations or conferences);
(c) All memoranda, reports, test results, financial statements or reports, notes,
transcripts, tabulations, studies, analyses, evaluations, projections. work
papers, corporate records or copies thereof, lists, comparisons,
questionnaires, surveys, charts, graphs, summaries, extracts, statistical
records; compilations,
(d) all desk calendars, appointment books, diaries;
( e) all books, articles, press releases, magazines, newspapers, booklets,
circulars, bulletins, notices, instructions, manuals,
(f) all minutes or transcripts of all meetings; and
(g) all photographs, microfilms, phonographs, tapes or other records, punch cards,
magnetic tapes, discs, data cells, drums, printouts, and other data compilations
from which information can be obtained.
II. "Communication": The term "communication" means not only oral communications but
also any "documents" (as such term is defined above), whether or not such document or the
information contained therein was transmitted by its author to any other person.
III. "Identify", "Identity" or "Identification":
A. When used in reference to a natural person, the terms "identify," "identity" or
"identification" mean to provide the following information:
(i) full name;
(ii) present or last known business and residence addresses;
(iii) present or last known business affiliation; and
(iv) present or last known business position (including job title and a
description of job functions, duties and responsibilities).
B. When used with reference to any entity other than a natural person, state:
(i) its full name;
.
.
(ii) the address of its principal place of business;
(iii) the jurisdiction under the laws of which it has been organized or
incorporated and the date of such organization or incorporation;
(iv) the identity of all individuals who acted and/or who authorized another to
act on its behalf in connection with the matters referred to;
(v) in the case of a corporation, the names of its directors and principal
officers; and
(vi) in the case of an entity other than a corporation, the identities of its
partners or principals or all individuals who acted or who authorized
another to act on its behalf in connection with the matters referred to.
C. When used in reference to a document, the terms "identify," "identity" or
"identification" mean to provide the following information:
(i) the nature of the document (~, letter, contract, memorandum) and any
other information (~, its title, index or file number) which would
facilitate in the identification thereof.
(ii) its date of preparation;
(iii) its present location and the identity (as defined in Paragraph III(A) hereof)
of its present custodian or, if its present location and custodian are not
known, a description of its last known disposition;
(iv) its subject matter and substance or, in lieu thereof, annex a legible copy of
the document to the answers ofthose interrogatories;
(v) the identity (as defined in Paragraph III(A) hereof) of each person who
performed any function or had any role in connection therewith (~,
author, contributor of information, recipient, etc.) or who has any
knowledge; and
(vi) if the document has been destroyed or is otherwise no longer in existence
or cannot be found, the reason why such document no longer exists, the
identity (as defined in Paragraph III(A) hereof) of the people responsible
for the document no longer being in existence and of its last custodian.
D. When used in connection with an oral communication, the terms "identify,"
"identity": and "identification" mean to provide the following information:
(i) its general nature (~, conference, telephonic communication, etc.);
(ii) the time and place of its occurrence;
(iii) its subject matter and substance;
(iv) the identity (as defined in Paragraph IH(A) hereof) of each person who
performed any function or had any role in connection therewith or who
has any knowledge thereof together with a description of each such
person's function, role, or knowledge; and
(v) the identity (as defined in Paragraph III(B) hereof) of each document
which refers thereto or which was used, referred to or prepared in the
course or as a result thereof.
.
.
IV. "Describe" or "Description":
(A) When used with respect to any act, action, accounting, activity, audit, practice,
process, occurrence, occasion, course of conduct, happening, negotiation, relationship, scheme,
communication, conference, discussion, development, service, transaction, instance, incidence or
event, the terms "describe" or "description" mean to provide the following information:
(i) its general nature;
(ii) the time and place thereof;
(iii) a chronological account setting forth each element thereof, what such
element consisted of and what transpired as part thereof;
(iv) the identity (as defined in Paragraph III(A) hereof) of each person who
performed any function or had any role in connection therewith (u,
speaker, participant, contributor or information, witness, etc.) or who has
any knowledge thereof together with a description of each such person's
function, role or knowledge.
(v) the identity (as defined in Paragraph III(C) hereof) of each document
which refers thereto or which was used, referred to or prepared in the
course or as a result thereof; and
(vi) the identity (as defined in Paragraph III(D) hereof) of each oral
communication which was a part thereof or referred thereto.
(B) When used in connection with any calculation or computation, the terms
"describe" or "description" mean to provide the following information:
(i) an explanation of its meaning (including the nature, source and meaning of
each component part thereof);
(ii) an explanation of the manner in which it was derived;
(iii) the identity (as defined in Paragraph III(A) hereof) of each person who
performed any function with respect thereto and a description of his
function;
(iv) the identity of each document (as defined in Paragraph IlI(C) hereof)
which refers thereto or which was used, referred to or prepared in the
course or as a result thereof; and
(v) the identity (as defined in Paragraph IIl(D) hereof) of each oral
communication which occurred in the course of the preparation thereof or
which referred thereto.
V. "Factual basis": The term "factual basis" means (A) set forth each item of information
upon which the allegation, contention, claim or demand to which it pertains is based, and (B)
with respect to each such item of information, identify each person having knowledge thereof
and identity and describe (as defined in Paragraph III and IV hereof) each source thereof
including but not limited to each document, oral communication, act, action, activity, accounting,
negotiation, practice, process, occurrence, occasion, course of conduct, happening, relationship,
scheme, conference, discussion, development, service, instance, incident, event, calculation and
computation upon which you rely with respect thereto.
.
.
VI. "Relates to" or "thereto": The terms "relates to" or "thereto," "relating to" or "thereto"
when used in connection with any act, action, activity, accounting, practice, process, occurrence,
occasion, course of conduct, contractual provision or document, happening, relationship, scheme,
conference, discussion, development, service, instance, incident, event, etc., means used or
occurring or referred to in the preparation therefore, or in the course thereof, or as a consequence
thereof, or referring thereto.
VII. Answer bv Reference to Documents: If any interrogatory is answered by reference to a
document or group of documents, with respect to each such interrogatory answer, identify (as
defined in Paragraph Irr(C) hereof) the specific document or documents containing the requested
information.
VIII. "Person": The term "person" means all natural persons, corporations, partnerships or
other business associations, public authorities, municipal corporations, state governments, all
governmental bodies, and all other legal entities.
IX. "Complaint": Refers to the matter that you filed, as captioned above.
X. "Each": "Each" includes both "each" and "every."
XI. "And"I"Or": The conjunctive "and" and the disjunctive "or" shall be mutually
interchangeable and shall not be construed to limit any Interrogatory or Document Request.
XII. "Gender": The singular and masculine gender shall respectively include the plural and
feminine gender, and vice versa, and neither shall be construed to limit any Interrogatory or
Document request.
XIII. If you claim that an answer to any Interrogatory or subpart thereof, or any document
related to any Interrogatory or subpart thereof, or any document requested in the accompanying
Requests for Production of Documents is privileged or otherwise protected from discovery,
provide the following information:
(A) Identify each and every person involved in the act, communication, or
information, and, if the claimed privilege related to a document, identify each person who
prepared or participated in the preparation of the document and who received it, and each person
from whom the document was received; and
(B) Provide sufficient information concerning the act, communication, information or
document and the circumstances thereof to explain the claim of privilege and to permit the
adjudication of the propriety of that claim.
XIV. Parties: "Petitioner" - The term "petitioner" refers to Brian John Gross. "Respondent" _
The term "respondent" refers to you, Elizabeth Barth.
.
.
INTERROGATORIES
1. Personal Information. -- State:
RESPONSE:
(a) Your full name:
(b) Each other name, if any, which you have used or by which your have been
known:
(c) The name of any spouses and the dates and place of your marriage to such
spouses:
(d) The address of your present residence and the address of each other
residence which you have had during the past five years:
(e) Your present occupation and the name and address of your employer:
(f) Date of your birth:
(g) Your Social Security number; and
(i) The schools you have attended and the degrees or certificates awarded, if
any.
.
.
case.
2. State with particularity the factual basis for each claim you are asserting in this
RESPONSE:
.
.
3. Witnesses.
RESPONSE:
(a) Identify each person who
(1) Was a witness to any statements or ceremonies which you claim to
have occurred in connection with your assertion that you are the
late David Gross' common-law wife;
(2) Has knowledge of facts concerning the issues referenced in the
Petition and Answer to Petition;
(b) With respect to each person so identified, state that person's relationship to
the events described in the Petition and Answer, and basis of knowledge
with respect to your alleged marriage to the late David Gross.
.
.
4. Statements. If you know of anyone that has given any statement (as defined by
the R.c.P.) concerning this action or its subject matter, state:
(a) The identity of such person;
(b) When, where, by whom, and to whom each statement was made, and
whether it was reduced to writing or otherwise recorded; and
(c) The identity of any person who has custody of any such statement that was
reduced to writing or otherwise recorded.
RESPONSE:
.
.
5. Demonstrative evidence. If you know of the existence of any photographs,
motion pictures, and/or video recordings relevant to the claim, state:
(a) The nature or type of such item;
(b) The date when such item was made;
(c) The identity of the person that prepared or made each item; and
(d) The subject that each item represents or portrays.
RESPONSE:
.
.
6. Trial witnesses. Identify each persons you intend to call as a non-expert
witness at the trial of this case, and for each person identified state your relationship with the
witness and the substance of the facts to which the witness is expected to testify.
RESPONSE:
.
.
7. Expert witnesses. Identify each expert you intend to call as a witness at the
trial of this matter, and for each expert state:
(a) The subject matter about which the expert is expected to testify; and
(b) The substance of the factors and opinions to which the expert is expected
to testify and a summary of the grounds for each opinion. (Y ou may file
as your answer to this interrogatory the report of the expert or have the
interrogatory answered by your expert.)
RESPONSE:
.
.
8. Trial exhibits. Identify all exhibits that you intend to use at the trial of this
matter and state for what purpose they will be used.
RESPONSE:
.
9. Books. magazines. etc.
such writing at trial state:
RESPONSE:
.
If you intend to use any book, magazine, or other
(a) The name ofthe writing;
(b) The author of the writing;
(c) The publisher of the writing;
(d) The date of publication ofthe writing; and
( e) The identity of the custodian of the writing.
. .
10. Admissions. If you intend to use any admission(s) of a party at trial, identify
such admission(s).
RESPONSE:
"" .
.
.
11. Since you claim to be the common-law spouse of David Gross, state the reasons
why you permitted Ramona Gross to be Administratrix of the Estate of the late David Gross.
RESPONSE:
.
.
12. State why you listed yourself as the fiance of the late David Gross in the obituary
attached to the Petition.
RESPONSE:
.
.
13. Identify individuals to whom you held yourself out as the common-law spouse of
David M. Gross; state the method in which you held yourself out as the common-law spouse of
David M. Gross; and state the date and time of any such representation or communication.
RESPONSE:
.
.
14. State why the late David Gross testified that you were his fiance?
RESPONSE:
~ ,
.
.
15. Explain David Gross' testimony in the personal injury lawsuit in Dauphin County
that you have never been married.
RESPONSE:
"
.
.
16. State why an engagement announcement for yourself and David M. Gross was
placed in The Patriot News if you are his common-law spouse.
RESPONSE:
.
.
17. State the date on which you indicate that the common-law marriage took place.
As to that date, state the persons present, the nature of the words exchanged, and the place and
time of such exchange.
RESPONSE:
.
.
18. Describe your role in the reporting of the death of David M. Gross for purposes of
the Death Certificate.
RESPONSE:
" "1
.
.
19. Identify any and all individuals who provided information for the Certificate of
Death. State as to why decedent, David Gross, was listed as "divorced with no surviving
spouse" on such Certificate of Death to the best of your knowledge, information and belief.
RESPONSE:
'. ....
.
.
20. State your role as to the preparation of the obituary for the late David M. Gross
which appeared in The Patriot News on Tuesday, August 19,2003.
RESPONSE:
.
.
21. State as to the best of your knowledge, information and belief why you are listed
as the fiance in that obituary.
RESPONSE:
.
.
22. Identify any and all documentation which you provided to Social Security to
support your position that you were the common-law spouse of the late David M. Gross.
RESPONSE:
.
.
23. You allege that the Social Security Administration conducted an investigation and
contacted friends and relatives of David M. Gross. Identify all such friends and relatives of
David M. Gross, and describe their position on your assertion that you were the late David
Gross' common-law wife.
RESPONSE:
.
.
24. Identify any and all documentation of any type which supports your contention
that you were the late David Gross' common-law wife.
RESPONSE:
.
.
25. Describe why you permitted litigation relating to the late David Gross' personal
injury claim in Dauphin County to be conducted by Ramona Gross as representative of the David
Gross Estate if you were his common-law wife?
RESPONSE:
.
.
26. Describe any and all evidence, including your own conversations which you had
with representatives of the Social Security Administration which you believe establish your
claim. As to such conversations, state the date of the conversation, the time of the conversation,
the parties to the conversation, and the nature of the claims asserted.
RESPONSE:
.
.
27. Identify any and all parties who were afforded the chance to offer testimony or
cross-examine you relating to the Social Security claim.
RESPONSE:
.
.
28. State the nature of any and all evidence, documentary or otherwise, presented by
you to the Cumberland County Office of the Register of Wills in connection with your
appointment as Administratrix d/b/n of the Estate of David Gross.
RESPONSE:
.J... '
.
.
29. As to your Affidavit of Common Law Marriage filed with your employer, state
the date which that was filed and advise as to any investigation undertaken by your employer.
As so any such investigation, indicate whom was contacted and the nature of statements made
by any such individuals, and state the names of any and all individuals at your employer with
whom you dealt in connection with said Affidavit, including names, addresses and job titles.
RESPONSE:
#" "' '
.
.
30. Describe any and all conversations between you and Father Sawdy. As to such
conversations, state the date, time, means of conversation and the parties present.
RESPONSE:
Respectfully submitted,
POST & SCHELL, P.e.
pawJ)a.~~~~
PAULA J. CDERMOT, ESQUIRE
Attorney J.D. # 46664
240 Grandview Avenue
Camp Hill, P A 17011
(717) 612-6012
Attorneys for Petitioner, Brian John Gross
Date: June 15,2004
.
.
VERIFICATION
I, Elizabeth Barth, Respondent in the foregoing action, hereby affirm that the facts and
matters set forth in the foregoing Petitioner's Interrogatories Directed to Respondent are true
and correct to the best of my knowledge, information, and belief. The undersigned understands
that the statements made therein are made subject to the penalties of 18 Pa. C.S. 94904 relating
to unsworn falsification to authorities.
Elizabeth Barth
Date:
,2004
'." ,
.
.
CERTIFICATE OF SERVICE
I, Dena J. Stump, an employee of the law firm of Post & Schell, p.e., do hereby certify
that on the date set forth below, I did serve a true and correct copy of the foregoing document
upon the following persons at the following addresses indicated below by sending same in the
United States mail, first-class, postage prepaid:
James Nealon, Esquire
Nealon & Gover
2411 North Front Street
Harrisburg, PAl 7110
POST & SCHELL, P.e.
Date: June I G , 2004
CPH 294586vl
EXHIBIT B
~
.1
.'
IN RE: ESTATE OF DAVID M.
GROSS
IN THE ORPHANS' COURT
CUMBERLAND COUNTY, PENNSYLVANIA
~
NO. 2103-1065
PETITIONER BRIAN JOHN GROSS' REQUEST FOR PRODUCTION OF
DOCUMENTS DIRECTED TO RESPONDENT ELIZABETH BARTH
TO: Elizabeth Barth
c/o James Nealon, Esquire
Nealon & Gover
2411 North Front Street
Harrisburg, P A 17110
INSTRUCTIONS/DEFINITIONS
The following instructions and definitions form an integral part of these Requests, and the
Requests are to be read in accordance with these instructions and definitions.
I. "Document": The term "document" means any written, printed, typed, or other recorded
or graphic matter of any kind or nature, however produced or reproduced, whether sent or
received or neither, including drafts and copies bearing notations or marks not found on
the original, and includes, but is not limited to:
(a) all contracts, agreements, representations, warranties, certificates,
OpInIOnS;
(b) all letters or other forms of correspondence or communication,
including envelopes, notes, telegrams, cables, telex messages,
messages (including reports, notes, notations and memoranda of or
relating to telephone conversations or conferences);
(c) All memoranda, reports, test results, financial statements or reports, notes,
transcripts, tabulations, studies, analyses, evaluations, projections. work
papers, corporate records or copies thereof, lists, comparisons,
questionnaires, surveys, charts, graphs, summaries, extracts, statistical
records; compilations,
(d) all desk calendars, appointment books, diaries;
( e) all books, articles, press releases, magazines, newspapers, booklets,
circulars, bulletins, notices, instructions, manuals,
(f) all minutes or transcripts of all meetings; and
(g) all photographs, microfilms, phonographs, tapes or other records, punch cards,
magnetic tapes, discs, data cells, drums, printouts, and other data compilations
from which information can be obtained.
.
.
II. "Communication": The term "communication" means any and all transmissions of
information, the information transmitted, the process by which the information is transmitted and
the term shall expressly be inclusive of all written and oral communications.
III. "Identify", "Identity" or "Identification":
A. When used in reference to a natural person, the terms "identify," "identity" or
"identification" mean to provide the following information:
(i) full name;
(ii) present or last known business and residence addresses;
(iii) present or last known business affiliation; and
(iv) present or last known business position (including job title and a
description of job functions, duties and responsibilities).
B. When used with reference to any entity other than a natural gerson, state:
(i) its full name;
(ii) the address of its principal place of business;
(iii) the jurisdiction under the laws of which it has been organized or
incorporated and the date of such organization or incorporation;
(iv) the identity of all individuals who acted and/or who authorized another to
act on its behalf in connection with the matters referred to;
(v) in the case of a corporation, the names of its directors and principal
officers; and
(vi) in the case of an entity other than a corporation, the identities of its
partners or principals or all individuals who acted or who authorized
another to act on its behalf in connection with the matters referred to.
C. When used in reference to a document, the terms "identify," "identity" or
"identification" mean to provide the following information:
(i) the nature of the document (M,., letter, contract, memorandum) and any
other information (~, its title, index or file number) which would
facilitate in the identification thereof.
(ii) its date of preparation;
(iii) its present location and the identity (as defined in Paragraph III (A) hereof)
of its present custodian or, if its present location and custodian are not
known, a description of its last known disposition;
(iv) its subject matter and substance or, in lieu thereof, annex a legible copy of
the document to the answers of those interrogatories;
(v) the identity (as defined in Paragraph III(A) hereof) of each person who
performed any function or had any role in connection therewith (M,.,
author, contributor of information, recipient, etc.) or who has any
knowledge; and
.'
.'
(vi) if the document has been destroyed or is otherwise no longer in existence
or cannot be found, the reason why such document no longer exists, the
identity (as defined in Paragraph IIl(A) hereof) of the people responsible
for the document no longer being in existence and of its last custodian.
D. When used in connection with an oral communication, the terms "identify,"
"identity," and "identification" mean to provide the following information:
(i) its general nature (~, conference, telephonic communication, etc.);
(ii) the time and place of its occurrence;
(iii) its subject matter and substance;
(iv) the identity (as defined in Paragraph IIl(A) hereof) of each person who
performed any function or had any role in connection therewith or who
has any knowledge thereoftogether with a description of each such
person's function, role, or knowledge; and
(v) the identity (as defined in Paragraph IIl(B) hereof) of each document
which refers thereto or which was used, referred to or prepared in the
course or as a result thereof.
IV. "Describe" or "Description":
(A) When used with respect to any act, action, accounting, activity, audit, practice,
process, occurrence, occasion, course of conduct, happening, negotiation, relationship, scheme,
communication, conference, discussion, development, service, transaction, instance, incidence or
event, the terms "describe" or "description" mean to provide the following information:
(i) its general nature;
(ii) the time and place thereof;
(iii) a chronological account setting forth each element thereof, what such
element consisted of and what transpired as part thereof;
(iv) the identity (as defined in Paragraph IIl(A) hereof) of each person who
performed any function or had any role in connection therewith (~,
speaker, participant, contributor or information, witness, etc.) or who has
any knowledge thereof together with a description of each such person's
function, role or knowledge.
(v) the identity (as defined in Paragraph IIl(C) hereof) of each document
which refers thereto or which was used, referred to or prepared in the
course or as a result thereof; and
(vi) the identity (as defined in Paragraph IIl(D) hereof) of each oral
communication which was a part thereof or referred thereto.
(B) When used in connection with any calculation or computation, the terms
"describe" or "description" mean to provide the following information:
(i) an explanation of its meaning (including the nature, source and meaning of
each component part thereof);
.
.
(ii) an explanation of the manner in which it was derived;
(iii) the identity (as defined in Paragraph III(A) hereof) of each person who
performed any function with respect thereto and a description of his
function;
(iv) the identity of each document (as defined in Paragraph III(C) hereof)
which refers thereto or which was used, referred to or prepared in the
course or as a result thereof; and
(v) the identity (as defined in Paragraph III(D) hereof) of each oral
communication which occurred in the course of the preparation thereof or
which referred thereto.
V. "Factual basis"; The term "factual basis" means (A) set forth each item of information
upon which the allegation, contention, claim or demand to which it pertains is based, and (B)
with respect to each such item of information, identify each person having knowledge thereof
and identity and describe (as defined in Paragraph III and IV hereof) each source thereof
including but not limited to each document, oral communication, act, actiol1, activity, accounting,
negotiation, practice, process, occurrence, occasion, course of conduct, happening, relationship,
scheme, conference, discussion, development, service, instance, incident, event, calculation and
computation upon which you rely with respect thereto.
VI. "Relates to" or "thereto"; The terms "relates to" or "thereto," "relating to" or "thereto"
when used in connection with any act, action, activity, accounting, practice, process, occurrence,
occasion, course of conduct, contractual provision or document, happening, relationship, scheme,
conference, discussion, development, service, instance, incident, event, etc., means used or
occurring or referred to in the preparation therefore, or in the course thereof, or as a consequence
thereof, or referring thereto.
VII. Answer bv Reference to Documents; If any request is answered by reference to a
document or group of documents, with respect to each such response, identify (as defined in
Paragraph III(C) hereof) the specific document or documents containing the requested
information.
VIII. "Person"; The term "person" means all natural persons, corporations, partnerships or
other business associations, public authorities, municipal corporations, state governments, all
governmental bodies, and all other legal entities.
IX. "Complaint"; Refers to the matter that was filed, as captioned above.
X. "Each"; "Each" includes both "each" and "every."
XI. "And"/"Or"; The conjunctive "and" and the disjunctive "or" shall be mutually
interchangeable and shall not be construed to limit any Interrogatory or Document Request.
XII. "Gender": The singular and masculine gender shall respectively include the plural and
feminine gender, and vice versa, and neither shall be construed to limit any Interrogatory or
Document request.
.
.1
XIII. If you claim that an answer to any discovery request or subpart thereof, or any document
related to any discovery request or subpart thereof, or any document requested in each and every
discovery request is privileged or otherwise protected from discovery, provide the following
information:
(A) Identify each and every person involved in the act, communication, or
information, and, if the claimed privilege related to a document, identify each person who
prepared or participated in the preparation ofthe document and who received it, and each person
from whom the document was received; and
(B) Provide sufficient information concerning the act, communication, information or
document and the circumstances thereof to explain the claim of privilege and to permit the
adjudication of the propriety of that claim.
XIV. Parties: "Petitioner" - The term "petitioner" refers to Brian John Gross; "Respondent" _
The term "respondent" refers to you, Elizabeth Barth.
e
ei
REQUESTS FOR PRODUCTION OF DOCUMENTS
1. Kindly identify and produce any and all documents not privileged in your, your
agents', and/or attorneys' possession relating to your claim to be the common-law spouse of the
late David M. Gross.
2. Kindly produce any and all documents which are identified in your Response to
the Petition.
3. Kindly produce any and all expert reports which you obtained in connection with
this matter and/or which you intend to use at the hearing ofthis matter.
Respectfully submitted,
POST & SCHELL, P.c.
P,.~~
PAULA J. DERMOTT, ESQUIRE
Attorney I.D. # 46664
240 Grandview Avenue
Camp Hill, P A 17011
(717) 612-6012
Attorneys for Petitioner, Brian John Gross
Date: June 16,2004
. , ,
.'
.
VERIFICATION
I, Elizabeth Barth, Respondent in the foregoing action, hereby affirm that the facts and
matters set forth in the foregoing document are true and correct to the best of my knowledge,
information, and belief. The undersigned understands that the statements made therein are made
subject to the penalties of 18 Pa. C.S. 94904 relating to unsworn falsification to authorities.
Elizabeth Barth
Date:
,2004
. '.
.1
.
CERTIFICATE OF SERVICE
I, Dena J. Stump, an employee of the law firm of Post & Schell, P.c., do hereby certify
that on the date set forth below, I did serve a true and correct copy of the foregoing document
upon the following persons at the following addresses indicated below by sending same in the
United States mail, first-class, postage prepaid:
James Nealon, Esquire
Nealon & Gover
2411 North Front Street
Harrisburg, P A 17110
POST & SCHELL, P.C.
Date: June I ~ 2004
CPH 294609vl
EXHIBIT C
" ,
.
.
"
IN RE: ESTATE OF DAVID M. GROSS: IN THE ORPHANS' COURT
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 2103-1065
ANSWERS TO INTERROGATORIES OF PETITIONER BRIAN JOHN GROSS
DIRECTED TO RESPONDENT ELIZABETH BARTH
1. Elizabeth M. Barth
Date of Birth: 02108/69
I was the common law spouse of David Gross. I am a 1987
graduate of Mechanicsburg High School. I also attended schools outlined in my
deposition.
2. Elizabeth Barth has not asserted any claims in this action.
3. See deposition of Elizabeth Barth. See also documents supplied in
Response to Request for Production of Documents.
4. None.
5. None.
6. Elizabeth Barth intends on calling herself in cross examining
members of the Gross family. In addition, Elizabeth may call anyone who authored any
of the cards or notes that have been supplied in the Response to the Request for
Production of Documents.
7. None.
8. Elizabeth Barth intends to use as Exhibits the affidavit of common
law marriage and the cards, letters and notes that have been supplied in Response to
Request for Production of Documents.
" .
.
.
9. No.
10. No.
11. See deposition of Elizabeth Barth.
12. See deposition of Elizabeth Barth.
13. See deposition of Elizabeth Barth.
14. See deposition of Elizabeth Barth. In addition, the deposition was
prior to the common law marriage.
15. The deposition was prior to the common law marriage.
16. See deposition of Elizabeth Barth. In addition, Elizabeth Barth and
David Gross intended to formalize their common law marriage through a religious
ceremony.
17. See deposition of Elizabeth Barth. In addition, see Affidavit of
Common Law Marriage.
18. See deposition of David Gross.
19. See deposition of Elizabeth Barth.
20. I had little role in preparing the obituary. See also deposition of
Elizabeth Barth.
21 See deposition of Elizabeth Barth.
22. I provided the Affidavit of Common Law Marriage. In addition I
spoke to representatives of Social Security.
23. I believe that Social Security contacted friends and family of David
Gross before making a determination.
2
..,'
.
.
24. See Affidavit of Common Law Marriage and documents supplied in
Response to Request for Production of Documents.
25. See deposition of Elizabeth Barth.
26. See deposition of Elizabeth Barth.
27. I believe that the siblings of David Gross were offered an
opportunity to voice their opinions in the Social Security review of the matter.
28. I presented the Affidavit of Common Law Marriage.
29. See deposition of Elizabeth Barth.
30. See deposition of Elizabeth Barth.
Respectfully submitted,
By:
NEALON & GOVER, P.C.
~III' ~Uire
I.D. #: 46457
NEALON & GOVER, P.C.
2411 North Front Street
Harrisburg, PA 17110
717/232-9900
Date: !()1tf-"tfY
v I
3
.
.
VERIFICATION
I, James G. Nealon, III, Esquire, make this Verification on behalf of
Elizabeth Barth, who is currently unavailable to sign this Verification. I represent that
the facts set forth in the foregoing ANSWERS TO INTERROGATORIES OF
PETITIONER BRIAN JOHN GROSS DIRECTED TO RESPONDENT ELIZABETH
BARTH are true and correct to the best of my knowledge, information, and belief. I
understand that this Verification is made subject to the penalties of 18 Pa.C.S.A. S4904
relating to unsworn falsification to authorities.
~
~~~,(~~ Ii-
James G. Nealon, III
Date: { U - 2 u -C7
I .
... ...
.J..
.
.
.
CERTIFICATE OF SERVICE
AND NOW, this ..2fL day of
Oc r ~ ,2004, I hereby certify that I have
,
served the foregoing ANSWERS TO INTERROGATORIES OF PETITIONER BRIAN
JOHN GROSS DIRECTED TO RESPONDENT ELIZABETH BARTH on the following
via Federal Express to:
Paula J. McDermott, Esquire
Post & Schell, P.C.
240 Grandview Avenue
Camp Hill, PA 17011
~
James G. Nealon, III, Esquire
EXHIBIT D
, "
!
.
.
.
.
IN RE: ESTATE OF DAVID M. GROSS: IN THE ORPHANS' COURT
CUMBERLAND COUNTY,
PENNSYLVANIA
: NO. 2103-1065
RESPONSE OF ELIZABETH BARTH TO
REQUEST OF BRIAN JOHN GROSS FOR PRODUCTION OF DOCUMENTS
1. Elizabeth Barth has previously supplied to counsel a copy of the
Affidavit of Common Law Marriage.
2. Counsel for Elizabeth Barth has made available various cards,
letters and notes for inspection.
3. Elizabeth Barth is not aware of any other documents responsive to
the Request for Production of Documents.
Respectfully submitted,
NEALON & GOVER, P.C.
James G. Nealon, III
. ,
J ,
. "
. .
.
.
~
CERTIFICATE OF SERVICE
AND NOW, this ~ day of
00T,
, 2004, I hereby certify that I have
served the foregoing RESPONSE OF ELIZABETH BARTH TO REQUEST OF BRIAN
JOHN GROSS FOR PRODUCTION OF DOCUMENTS on the following via Federal
Express:
Paula J. McDermott, Esquire
Post & Schell, P.C.
240 Grandview Avenue
Camp Hill, PA 17011
James G. Nealon, III, Esquire
J',
.
.
CERTIFICATE OF SERVICE
I, Dena J. Stump, an employee of the law firm of Post & Schell, P.C., do hereby
certify that on the date set forth below, I did serve a true and correct copy of the
foregoing document upon the following persons at the following addresses indicated
below by sending same in the United States mail, first-class, postage prepaid:
James Nealon, Esquire
Nealon & Gover
2411 North Front Street
Harrisburg, PA 17110
POST & SCHELL, P.C.
Date: Novembeb,2004
9
.
.
IN RE: ESTATE OF DAVID
M. GROSS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
21-03-1065 ORPHANS' COURT
ORDER OF COURT
AND NOW, this 3rd day of November, 2004, upon agreement of counsel, it is
ordered and directed that Petitioner's Motion in Limine for Sanctions for Failure To
Respond to Discovery Requests, and of the Response of Elizabeth Barth to Motion in
Limine for Sanctions for Failure To Respond to Discovery Requests, shall be transferred
to the Honorable George E. Hoffer, President Judge, and heard on Monday, November 8,
2004, at 9:30 a.m., in Courtroom No.3. The previous hearing before the undersigned
scheduled for December 8, 2004, at 2:30 p.m., is cancelled.
BY THE COURT,
1(,
The Honorable George E. Hoffer
President Judge--A dJicfJ.,.(: l~;".f
(11)/ uti l~
J.
..4aula J. McDermott, Esq.
240 Grandview Avenue
Camp Hill, PA 17011
Attorney for Petitioner
:rc
>4~
~
11-()3 -6(
Ames Nealon, Esq.
2411 North Front Street
Harrisburg, P A 17110
Attorney for Respondent
1~ ~)
V")
)- .
t~
......1
~o
e~
%~
~i?:;
(~~p
,......)~
. .':>
~.:::...-':.)
-- ,fY
.-. ~-
U -..-' cr
'-..) .
..:::- ......; ::>
N"~~
. .....J/l.J
<..:;..J
-,9
C
.
.
IN RE: ESTATE OF DAVID
M. GROSS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
ORPHANS' COURT DIVISION
21-03-1065 ORPHANS' COURT
ORDER OF COURT
AND NOW, this 28th day of October, 2004, upon consideration of Petitioner's
Motion in Limine for Sanctions for Failure To Respond to Discovery Requests, and of
the Response of Elizabeth Barth to Motion in Limine for Sanctions for Failure To
Respond to Discovery Requests, a discovery conference/hearing is scheduled for
Wednesday, December 8, 2004, at 2:30 p.m., in Courtroom No.1, Cumberland County
Courthouse, Carlisle, Pennsylvania.
BY THE COURT,
aula J. McDermott, Esq.
240 Grandview Avenue
Camp Hill, PA 17011
Attorney for Petitioner
James Nealon, Esq.
2411 North Front Street
Harrisburg, P A 17110
Attorney for Respondent
:rc
-;1' l'
I, \
~
15 ~~.
COMMONWEALTH OF PENNSYLVANIA
DE'PARTMENT OF REVENUE
BUREAU OF INDIVIDUAL TAXES
DEPT, 280601
HARRISBURG, PA 17128-0601
.
.
REV-1162 EX(11-96)
RECEIVED FROM:
PENNSYLVANIA
INHERITANCE AND ESTATE TAX
OFFICIAL RECEIPT
BARTH ELIZABETH M
274 COLD SPIRNGS DR
MANCHESTER, PA 17345
h___~n fold
ESTATE INFORMATION: SSN: 189-52-7272
FILE NUMBER: 2103-1065
DECEDENT NAME: GROSS DAVID
DATE OF PAYMENT: 11/02/2004
POSTMARK DATE: 10/26/2004
COUNTY: CUMBERLAND
DATE OF DEATH: 08/17/2003
NO. CD 004570
ACN
ASSESSMENT
CONTROL
NUMBER
AMOUNT
03137535 I $83.23
I
I
I
I
I
I
I
I
TOTAL AMOUNT PAID:
REMARKS:
CHECK# 667
SEAL
INITIALS: JA
RECEIVED BY:
REGISTER OF WILLS
$83.23
GLENDA FARNER STRASBAUGH
REGISTER OF WILLS
2Lf
.
.
IN RE:
ESTATE OF DAVID M. GROSS: IN THE ORPHANS' COURT
: CUMBERLAND COUNTY,
PENNSYL VANIA
NO. 2103-1065
RESPONSE OF ELIZABETH BARTH TO
MOTION IN LIMINE FOR SANCTIONS FOR FAILURE
TO RESPOND TO DISCOVERY REQUESTS
1. It is admitted that a hearing was scheduled on October 4, 2004 at
9:30 a.m. It is denied that Elizabeth Barth was provided Notice of the Hearing.
The first Notice that she had of the hearing was on October 1, 2004 when she
received the Motion in Limine. The hearing has since been rescheduled.
2. Admitted.
3. Ad mitted.
4. Admitted.
5. Admitted.
6. Admitted.
7. It is admitted that Exhibit C is a true and correct copy of a July 28,
2004 letter of Paula J. McDermott, Esquire.
8. Admitted.
9. Admitted.
10. Admitted.
11. The averments contained in paragraph 11 of the Motion are
conclusions of law to which no response is required.
'21
23 ~t:
.
.
12. Admitted.
13. Admitted.
14. It is admitted that the Court has discretion in dealing with failure to
respond to discovery. However, a Court normally should not grant sanctions
unless there has been a failure to obey an Order compelling discovery. See
Linker v. Churnetski Transportation, Inc. 360 Pa. Super. 366, 520A.2d, 502
(1987).
15. It is admitted that the Court has discretion to deal with discovery
violations. However, sanctions are not appropriate in the instant case.
16. Admitted.
17. Admitted. However, sanctions should normally not be awarded
absent a violation of a Court Order.
18. Admitted.
19. Denied. The failure to respond to discovery was an oversight.
20. Denied. Elizabeth Barth had previously supplied documents In
support of her position. In addition, contemporaneously with the filing of this
response, Answers to Interrogatories and Response to Request for Production of
Documents will be served upon counsel.
21. See paragraph 20 above.
22. See answer to paragraph 20 above.
23. Denied. No prejudice has occurred as the documents have been
supplied and the deposition has been taken of Elizabeth Barth.
2
.
.
NEW MATTER
24. Paula J. McDermott, Esquire was notified by the Court of the
hearing scheduled for October 4,2004.
25. Paula J. McDermott, Esquire was counsel for the moving party
requesting the hearing.
26. Paula J. McDermott, Esquire never informed counsel for Elizabeth
Barth of the scheduled hearing.
27. From the time of the deposition of Elizabeth Barth until the time of
the scheduled hearing, Paula J. McDermott, Esquire never contacted counsel for
Elizabeth Barth to inquire as to the outstanding discovery requests.
28. No request for an Order compelling the discovery was sought by
Paula J. McDermott, Esquire.
29. Normally a Court should not enter sanctions unless there has been
a violation of a Court Order. See Linker v. Chumetski Transportation, Inc., 360
Pa. Super. 366, 520A.2d, 502 (1987).
30. Elizabeth Barth has supplied Answers to Interrogatories and a
Response to Request for Production of Documents contemporaneously with the
filing of this response to the Motion.
3
.
.
WHEREFORE, Elizabeth Barth respectfully requests this Honorable Court
to deny the Motion in Limine and Request for Sanctions.
Respectfully submitted,
NEALON & GOVER, P.C.
BY/-
. James G. Nealon, III
Attorney 10# 46457
2411 North Front Street
Harrisburg, PA 17110
(717) 232-9900
4
.
.
CERTIFICATE OF SERVICE
AND NOW, thisc2C day of Gcr?/:3C'K2004, I hereby certify that I have
served the foregoing RESPONSE OF ELIZABETH BARTH TO MOTION IN LIMINE
FOR SANCTIONS FOR FAILURE TO RESPOND TO DISCOVERY REQUESTS on the
following via Federal Express:
Paula J. McDermott, Esquire
Post & Schell, P.C.
240 Grandview Avenue
Camp Hill, PA 17011
"
~
James G. Nealon, III, Esquire
\;"
.
."
.
IN RE: ESTATE OF DAVID
M. GROSS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
21-03-1065 ORPHANS' COURT
ORDER OF COURT
AND NOW, this 6th day of October, 2004, upon consideration of Petitioner's
Motion in Limine for Sanctions for Failure To Respond to Discovery Requests, a Rule is
hereby issued upon Respondent to show cause why the relief requested should not be
granted.
RULE RETURNABLE within 10 days of service.
BY THE COURT,
J.
Paula J. McDermott, Esq.
240 Grandview Avenue
Camp Hill, PA 17011
Attorney for Petitioner
James Nealon, Esq.
2411 North Front Street
Harrisburg, P A 17110
Attorney for Respondent
:rc
2~
.
IN RE:
ESTATE OF
DAVID M. GROSS
IN RE: HEARING DATE
.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT
: 21-03-1065 ORPHANS
ORDER OF COURT
AND NOW, October 1,2004, hearing in the above matter, originally set
for October 4,2004, is continued to MONDAY, NOVEMBER 8, 2004, at 9:30
a.m. in Courtroom No.3.
Paula J. McDermott, Esquire
240 Grandview Avenue
Camp Hill, PA 17011
James Nealon, Esquire
Nealon & Gover
2411 North Front Street
Harrisburg, PA 17110
P.J.
"l '\
.
-,'
.
Paula J. McDermott, Esquire
Attorney I.D. # 46664
Post & Schell, P.C.
240 Grandview Avenue
Camp Hill, PA 17011
(717) 612-6012
E-mail: pmcdermott@postschell.com
IN RE: ESTATE OF DAVID M.
GROSS
IN THE ORPHANS' COURT i'v
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2103-1065
MOTION IN LIMINE FOR SANCTIONS FOR FAILURE TO RESPOND TO
DISCOVERY REQUESTS
TO: THE HONORABLE JUDGE HOFFER
1. This matter is scheduled for hearing before this Honorable Court on
October 4, 2004 at 9:30 a.m.
2. The Citation in this matter was filed on May 11, 2004.
3. On June 16, 2004, a Request for Production of Documents directed to
Respondent Elizabeth Barth, was served upon her attorney, James Nealon, Esquire. A
true and correct copy of that Request for Production of Documents is attached hereto as
Exhibit "A."
4. On June 16, 2004, Interrogatories of Petitioner Brian John Gross directed
to Respondent Elizabeth Barth were served upon her attorney, James Nealon, Esquire.
A true and correct copy of those Interrogatories is attached hereto as Exhibit "B."
10 2(j
.
-'
.
5. Answers to those discovery requests were due on July 16, 2004.
6. At some point, subsequent to July 16, 2004, Brian Gross' counsel, Paula
J. McDermott received a telephone call from James Nealon, counsel for Respondent,
requesting an extension of time to answer the Interrogatories due to failure to obtain
certain documents he alleged he was seeking to obtain from the Social Security
Administration.
7. On July 28, 2004, Petitioner's counsel, Paula J. McDermott, wrote
Attorney Nealon demanding that all documents not pertaining to Social Security be
produced and that the Interrogatories be answered. A true and correct copy of this
correspondence dated July 28, 2004 is attached hereto as Exhibit "C."
8. No further extension has been sought, nor have any of the Interrogatories
or Requests for Production of Documents ever been objected to by Respondent's
counsel.
9. Petitioner's counsel took the deposition of Elizabeth M. Barth, Respondent
herein, on August 13, 2004.
10. During that deposition, Petitioner's counsel made a statement in the
record indicating that no responses to either the Requests for Production of Documents
or Interrogatories had been received. A true and correct copy of Page 6 of the
Deposition Transcript of Elizabeth M. Barth dated August 13, 2004, is incorporated
hereby and attached hereto as Exhibit "D."
11. Pursuant to Rule 4019 of the Pennsylvania Rules of Civil Procedure, this
Court is empowered to impose sanctions for failure to answer discovery requests.
2
.
.
-.#
.
12. Rule 4019(a)(1) indicates, "The court may on motion make an appropriate
order if (i) a party fails to serve sufficient answers or objections to written interrogatories
under Rule 4005. . ."
13. Pursuant to Rule 4019(a)(1 )(vii), the Court may make an appropriate order
if a party in response to a Request for Production or Inspection made under Rule 4009,
fails to respond.
14. Pursuant to Pa. RCP 4019(c) ~~1 and 2, this Court has the authority to
issue an Order that the matters regarding which the questions were asked, or the
contents of papers, or any other designated facts not responded to shall be taken to be
established for the purposes of the action in accordance with the claim.
15. Furthermore, this Court is empowered to issue an Order refusing to allow
the disobedient party to support or oppose designated claims or defenses or prohibiting
such party from introducing in evidence designated documents, things or testimony, or
from introducing evidence of physical or mental condition.
16. This Court is also empowered pursuant to Rule 4019(c)(5) to make such
order as is just with regard to the failure to make discovery.
17. The imposition of specific sanctions is largely within the discretion of the
trial court. Ironworkers Savina & Loan Association v. WIS, Inc., 424 Pa. Super. 255,
622 A.2d 367 (1993).
18. When a discovery sanction is imposed, the sanction must be appropriate
when compared to the violation of the rules. Thompson v. Royal Insurance, 361 Pa.
Super. 78, 521 A.2d 936 (1986).
3
.
-AI
.
19. No reasonable justification exists for the failure to answer any discovery
whatsoever in this matter. Hutchison by Hutchison v. Luddy, 417 Pa. Super. 93, 611
A.2d 1280 (1992), appeal qranted 533 Pa. 660, 625 A.2d 1193 (1993).
20. Since Respondent has not produced any documents relating to her claim
to be the common law spouse of the late David M. Gross pursuant to Paragraph 1 of the
Request for Production of Documents, nor any and all documents identified in response
to the Answer to the Petition pursuant to Request 2 of the Requests for Production of
Documents, Respondent should not be permitted to introduce any such documents at
trial.
21. Since Respondent has failed to identify witnesses pursuant to Question 3;
witness statements pursuant to Question 4; demonstrative evidence pursuant to
Question 5; and trial witnesses pursuant to Question 6 of the Petitioner's
Interrogatories, Respondent should be precluded from presenting any such witnesses
or demonstrative evidence.
22. Additionally, since Respondent has failed to answer any questions
pursuant to the written discovery requests attached hereto as Exhibit "B" relating to her
claim, she should be precluded from presenting any evidence whatsoever of her claims
at trial.
23. Petitioner Brian John Gross has been prejudiced by the failure to answer
discovery since Petitioner Brian John Gross is not informed as to what claims or
defenses will be presented; no opportunity has been afforded to depose witnesses.
4
.
-.
.
WHEREFORE, Petitioner Brian John Gross respectfully requests this Honorable
Court to sign an Order in the form attached, precluding Respondent from producing any
documentation, witnesses or testifying at the hearing in this matter.
Respectfully submitted,
POST & SCHELL, P.C.
F~ &1 ftJ.S-~
PAULA J CDERMOTT, ESQUIRE
Attorney I.D. # 46664
240 Grandview Avenue
Camp Hill, PA 17011
(717) 612-6012
Attorneys for Petitioner, Brian J. Gross
Date: ~ s.er~ ,2004
5
-
EXHIBIT A
.
.
.
IN RE: ESTATE OF DAVID M.
GROSS
IN THE ORPHANS' COURT
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2103-1065
PETITIONER BRIAN JOHN GROSS' REQUEST FOR PRODUCTION OF
DOCUMENTS DIRECTED TO RESPONDENT ELIZABETH BARTH
TO: Elizabeth Barth
c/o James Nealon, Esquire
Nealon & Gover
2411 North Front Street
Harrisburg, PAl 711 0
INSTRUCTIONS/DEFINITIONS
The following instructions and definitions form an integral part of these Requests, and the
Requests are to be read in accordance with these instructions and definitions.
I. "Document": The term "document" means any written, printed, typed, or other recorded
or graphic matter of any kind or nature, however produced or reproduced, whether sent or
received or neither, including drafts and copies bearing notations or marks not found on
the original, and includes, but is not limited to:
(a) all contracts, agreements, representations, warranties, certificates,
OpInIOnS;
(b) all letters or other forms of correspondence or communication,
including envelopes, notes, telegrams, cables, telex messages,
messages (including reports, notes, notations and memoranda of or
relating to telephone conversations or conferences);
(c) All memoranda, reports, test results, financial statements or reports, notes,
transcripts, tabulations, studies, analyses, evaluations, projections. work
papers, corporate records or copies thereof, lists, comparisons,
questionnaires, surveys, charts, graphs, summaries, extracts, statistical
records; compilations,
(d) all desk calendars, appointment books, diaries;
(e) all books, articles, press releases, magazines, newspapers, booklets,
circulars, bulletins, notices, instructions, manuals,
(f) all minutes or transcripts of all meetings; and
(g) all photographs, microfilms, phonographs, tapes or other records, punch cards,
magnetic tapes, discs, data cells, drums, printouts, and other data compilations
from which information can be obtained.
.
- '"
.
II. "Communication": The term "communication" means any and all transmissions of
information, the information transmitted, the process by which the information is transmitted and
the term shall expressly be inclusive of all written and oral communications.
III. "Identify", "Identity" or "Identification":
A. When used in reference to a natural person, the terms "identify," "identity" or
"identification" mean to provide the following information:
(i) full name;
(ii) present or last known business and residence addresses;
(iii) present or last known business affiliation; and
(iv) present or last known business position (including job title and a
description of job functions, duties and responsibilities).
B. When used with reference to any entity other than a natural person, state:
(i) its full name;
(ii) the address of its principal place of business;
(iii) the jurisdiction under the laws of which it has been organized or
incorporated and the date of such organization or incorporation;
(iv) the identity of all individuals who acted and/or who authorized another to
act on its behalf in connection with the matters referred to;
(v) in the case ofa corporation, the names of its directors and principal
officers; and
(vi) in the case of an entity other than a corporation, the identities of its
partners or principals or all individuals who acted or who authorized
another to act on its behalf in connection with the matters referred to.
C. When used in reference to a document, the terms "identify," "identity" or
"identification" mean to provide the following information:
(i) the nature of the document (~, letter, contract, memorandum) and any
other information (~, its title, index or file number) which would
facilitate in the identification thereof.
(ii) its date of preparation;
(iii) its present location and the identity (as defined in Paragraph III(A) hereof)
of its present custodian or, if its present location and custodian are not
known, a description of its last known disposition;
(iv) its subject matter and substance or, in lieu thereof, annex a legible copy of
the document to the answers of those interrogatories;
(v) the identity (as defined in Paragraph III(A) hereof) of each person who
performed any function or had any role in connection therewith (~,
author, contributor of information, recipient, etc.) or who has any
knowledge; and
.
_to
.
(vi) if the document has been destroyed or is otherwise no longer in existence
or cannot be found, the reason why such document no longer exists, the
identity (as defined in Paragraph III(A) hereof) of the people responsible
for the document no longer being in existence and of its last custodian.
D. When used in connection with an oral communication, the terms "identify,"
"identity," and "identification" mean to provide the following information:
(i) its general nature (~, conference, telephonic communication, etc.);
(ii) the time and place of its occurrence;
(iii) its subject matter and substance;
(iv) the identity (as defined in Paragraph III(A) hereof) of each person who
performed any function or had any role in connection therewith or who
has any knowledge thereof together with a description of each such
person's function, role, or knowledge; and
(v) the identity (as defined in Paragraph III(B) hereof) of each document
which refers thereto or which was used, referred to or prepared in the
course or as a result thereof.
IV. "Describe" or "Description":
(A) When used with respect to any act, action, accounting, activity, audit, practice,
process, occurrence, occasion, course of conduct, happening, negotiation, relationship, scheme,
communication, conference, discussion, development, service, transaction, instance, incidence or
event, the terms "describe" or "description" mean to provide the following information:
(i) its general nature;
(ii) the time and place thereof;
(iii) a chronological account setting forth each element thereof, what such
element consisted of and what transpired as part thereof;
(iv) the identity (as defined in Paragraph III(A) hereof) of each person who
performed any function or had any role in connection therewith (~,
speaker, participant, contributor or information, witness, etc.) or who has
any knowledge thereof together with a description of each such person's
function, role or knowledge.
(v) the identity (as defined in Paragraph III(C) hereof) of each document
which refers thereto or which was used, referred to or prepared in the
course or as a result thereof; and
(vi) the identity (as defined in Paragraph III(D) hereof) of each oral
communication which was a part thereof or referred thereto.
(B) When used in connection with any calculation or computation, the terms
"describe" or "description" mean to provide the following information:
(i) an explanation of its meaning (including the nature, source and meaning of
each component part thereof);
.
~ ,.
.
(ii) an explanation of the manner in which it was derived;
(iii) the identity (as defined in Paragraph III(A) hereof) of each person who
performed any function with respect thereto and a description of his
function;
(iv) the identity of each document (as defined in Paragraph III(C) hereof)
which refers thereto or which was used, referred to or prepared in the
course or as a result thereof; and
(v) the identity (as defined in Paragraph III(D) hereof) of each oral
communication which occurred in the course of the preparation thereof or
which referred thereto.
V. "Factual basis": The term "factual basis" means (A) set forth each item of information
upon which the allegation, contention, claim or demand to which it pertains is based, and (B)
with respect to each such item of information, identify each person having knowledge thereof
and identity and describe (as defined in Paragraph III and IV hereof) each source thereof
including but not limited to each document, oral communication, act, actioIl, activity, accounting,
negotiation, practice, process, occurrence, occasion, course of conduct, happening, relationship,
scheme, conference, discussion, development, service, instance, incident, event, calculation and
computation upon which you rely with respect thereto.
VI. "Relates to" or "thereto": The terms "relates to" or "thereto," "relating to" or "thereto"
when used in connection with any act, action, activity, accounting, practice, process, occurrence,
occasion, course of conduct, contractual provision or document, happening, relationship, scheme,
conference, discussion, development, service, instance, incident, event, etc., means used or
occurring or referred to in the preparation therefore, or in the course thereof, or as a consequence
thereof, or referring thereto.
VII. Answer by Reference to Documents: If any request is answered by reference to a
document or group of documents, with respect to each such response, identify (as defined in
Paragraph III(C) hereof) the specific document or documents containing the requested
information.
VIII. "Person": The term "person" means all natural persons, corporations, partnerships or
other business associations, public authorities, municipal corporations, state governments, all
governmental bodies, and all other legal entities.
IX. "Complaint": Refers to the matter that was filed, as captioned above.
X. "Each": "Each" includes both "each" and "every."
XI. "And" l"Or": The conjunctive "and" and the disjunctive "or" shall be mutually
interchangeable and shall not be construed to limit any Interrogatory or Document Request.
XII. "Gender": The singular and masculine gender shall respectively include the plural and
feminine gender, and vice versa, and neither shall be construed to limit any Interrogatory or
Document request.
.
-' ~
.
XIII. If you claim that an answer to any discovery request or subpart thereof, or any document
related to any discovery request or subpart thereof, or any document requested in each and every
discovery request is privileged or otherwise protected from discovery, provide the following
information:
(A) Identify each and every person involved in the act, communication, or
information, and, if the claimed privilege related to a document, identify each person who
prepared or participated in the preparation of the document and who received it, and each person
from whom the document was received; and
(B) Provide sufficient information concerning the act, communication, information or
document and the circumstances thereof to explain the claim of privilege and to permit the
adjudication of the propriety of that claim.
XIV. Parties: "Petitioner" - The term "petitioner" refers to Brian John Gross; "Respondent" -
The term "respondent" refers to you, Elizabeth Barth.
.
~ ,.
.
REQUESTS FOR PRODUCTION OF DOCUMENTS
1. Kindly identify and produce any and all documents not privileged in your, your
agents', and/or attorneys' possession relating to your claim to be the common-law spouse of the
late David M. Gross.
2. Kindly produce any and all documents which are identified in your Response to
the Petition.
3. Kindly produce any and all expert reports which you obtained in connection with
this matter and/or which you intend to use at the hearing of this matter.
Respectfully submitted,
POST & SCHELL, P .C.
p~, fl\I-L~
PAULA J. DERMOTT, ESQUIRE
Attorney I.D. # 46664
240 Grandview Avenue
Camp Hill, P A 17011
(717) 612-6012
Attorneys for Petitioner, Brian John Gross
Date: June 16,2004
.
,.
.
VERIFICATION
I, Elizabeth Barth, Respondent in the foregoing action, hereby affirm that the facts and
matters set forth in the foregoing document are true and correct to the best of my knowledge,
information, and belief. The undersigned understands that the statements made therein are made
subject to the penalties of 18 Pa. C.S. 94904 relating to unsworn falsification to authorities.
Elizabeth Barth
Date:
,2004
.
,.
.
CERTIFICATE OF SERVICE
I, Dena J. Stump, an employee of the law firm of Post & Schell, P.e., do hereby certify
that on the date set forth below, I did serve a true and correct copy of the foregoing document
upon the following persons at the following addresses indicated below by sending same in the
United States mail, first-class, postage prepaid:
James Nealon, Esquire
Nealon & Gover
2411 North Front Street
Harrisburg, P A 17110
POST & SCHELL, P.C.
Date: June I ~ 2004
CPH 294609vl
EXHIBIT B
, '
.
"
.
IN RE: ESTATE OF DAVID M.
GROSS
IN THE ORPHANS' COURT
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2103-1065
INTERROGATORIES OF PETITIONER BRIAN JOHN GROSS DIRECTED
TO RESPONDENT ELIZABETH BARTH
TO: Elizabeth Barth
c/o James Nealon, Esquire
Nealon & Gover
2411 North Front Street
Harrisburg, P A 17110
PLEASE TAKE NOTICE that you are hereby required, pursuant to Pa. R. Civ. P. 4006,
as amended, to serve upon the undersigned a copy of your individual answers and objections, if
any, in writing and under oath, to the following Interrogatories within thirty (30) days after
service of the Interrogatories. The Answers shall be inserted in the space provided. If there is
insufficient space to answer an Interrogatory, the remainder of the Answer shall follow on a
supplemental sheet.
These shall be deemed to be continuing Interrogatories. If, between the time of your
Answers and the time of the trial of this case, you or anyone acting on your behalf, learn of any
further information not contained in your Answers, you shall promptly furnish said information
to the undersigned by Supplemental Answers.
POST & SCHELL, P.e.
Date: June I (p, 2004
f~~Il\i-~~
Paula J. McD ott, EsqUIre
Attorney J.D. No. 46664
240 Grandview A venue
Camp Hill, PA 17011
(717) 731-1970
Attorneys for Plaintiff
.
.
INSTRUCTIONSffiEFINITIONS
The following instructions and definitions form an integral part of these interrogatories,
and the interrogatories are to be read in accordance with these instructions and definitions.
I. "Document": The term "document" means any written, printed, typed, or other
graphic matter of any kind or nature, however produced or reproduced, whether
sent or received or neither, including drafts and copies bearing notations or marks
not found on the original, and includes, but is not limited to:
(a) all contracts, agreements, representations, warranties, certificates,
OpInIOnS;
(b) all letters or other forms of correspondence or communication,
including envelopes, notes, telegrams, cables, telex messages,
messages (including reports, notes, notations and memoranda of or
relating to telephone conversations or conferences);
(c) All memoranda, reports, test results, financial statements or reports, notes,
transcripts, tabulations, studies, analyses, evaluations, projections. work
papers, corporate records or copies thereof, lists, comparisons,
questionnaires, surveys, charts, graphs, summaries, extracts, statistical
records; compilations,
(d) all desk calendars, appointment books, diaries;
(e) all books, articles, press releases, magazines, newspapers, booklets,
circulars, bulletins, notices, instructions, manuals,
(f) all minutes or transcripts of all meetings; and
(g) all photographs, microfilms, phonographs, tapes or other records, punch cards,
magnetic tapes, discs, data cells, drums, printouts, and other data compilations
from which information can be obtained.
II. "Communication": The term "communication" means not only oral communications but
also any "documents" (as such term is defined above), whether or not such document or the
information contained therein was transmitted by its author to any other person.
III. "Identify", "Identity" or "Identification":
A. When used in reference to a natural person, the terms "identify," "identity" or
"identification" mean to provide the following information:
(i) full name;
(ii) present or last known business and residence addresses;
(iii) present or last known business affiliation; and
(iv) present or last known business position (including job title and a
description of job functions, duties and responsibilities).
B. When used with reference to any entity other than a natural person, state:
(i) its full name;
.
.
(ii) the address of its principal place of business;
(iii) the jurisdiction under the laws of which it has been organized or
incorporated and the date of such organization or incorporation;
(iv) the identity of all individuals who acted and/or who authorized another to
act on its behalf in connection with the matters referred to;
(v) in the case of a corporation, the names of its directors and principal
officers; and
(vi) in the case of an entity other than a corporation, the identities of its
partners or principals or all individuals who acted or who authorized
another to act on its behalf in connection with the matters referred to.
C. When used in reference to a document, the terms "identify," "identity" or
"identification" mean to provide the following information:
(i) the nature ofthe document (~, letter, contract, memorandum) and any
other information (~, its title, index or file number) which would
facilitate in the identification thereof.
(ii) its date of preparation;
(iii) its present location and the identity (as defined in Paragraph III(A) hereof)
of its present custodian or, if its present location and custodian are not
known, a description of its last known disposition;
(iv) its subject matter and substance or, in lieu thereof, annex a legible copy of
the document to the answers of those interrogatories;
(v) the identity (as defined in Paragraph III (A) hereof) of each person who
performed any function or had any role in connection therewith (~,
author, contributor of information, recipient, etc.) or who has any
knowledge; and
(vi) if the document has been destroyed or is otherwise no longer in existence
or cannot be found, the reason why such document no longer exists, the
identity (as defined in Paragraph III(A) hereof) ofthe people responsible
for the document no longer being in existence and of its last custodian.
D. When used in connection with an oral communication, the terms "identify,"
"identity": and "identification" mean to provide the following information:
(i) its general nature (~, conference, telephonic communication, etc.);
(ii) the time and place of its occurrence;
(iii) its subject matter and substance;
(iv) the identity (as defined in Paragraph III(A) hereof) of each person who
performed any function or had any role in connection therewith or who
has any knowledge thereoftogether with a description of each such
person's function, role, or knowledge; and
(v) the identity (as defined in Paragraph III(B) hereof) of each document
which refers thereto or which was used, referred to or prepared in the
course or as a result thereof.
.
"
.
IV. "Describe" or "Description":
(A) When used with respect to any act, action, accounting, activity, audit, practice,
process, occurrence, occasion, course of conduct, happening, negotiation, relationship, scheme,
communication, conference, discussion, development, service, transaction, instance, incidence or
event, the terms "describe" or "description" mean to provide the following information:
(i) its general nature;
(ii) the time and place thereof;
(iii) a chronological account setting forth each element thereof, what such
element consisted of and what transpired as part thereof;
(iv) the identity (as defined in Paragraph IIl(A) hereof) of each person who
performed any function or had any role in connection therewith (M,
speaker, participant, contributor or information, witness, etc.) or who has
any knowledge thereof together with a description of each such person's
function, role or knowledge.
(v) the identity (as defined in Paragraph IlI(C) hereof) of each document
which refers thereto or which was used, referred to or prepared in the
course or as a result thereof; and
(vi) the identity (as defined in Paragraph IlI(D) hereof) of each oral
communication which was a part thereof or referred thereto.
(B) When used in connection with any calculation or computation, the terms
"describe" or "description" mean to provide the following information:
(i) an explanation of its meaning (including the nature, source and meaning of
each component part thereof);
(ii) an explanation of the manner in which it was derived;
(iii) the identity (as defined in Paragraph IIl(A) hereof) of each person who
performed any function with respect thereto and a description of his
function;
(iv) the identity of each document (as defined in Paragraph III(C) hereof)
which refers thereto or which was used, referred to or prepared in the
course or as a result thereof; and
(v) the identity (as defined in Paragraph IlI(D) hereof) of each oral
communication which occurred in the course of the preparation thereof or
which referred thereto.
V. "Factual basis": The term "factual basis" means (A) set forth each item of information
upon which the allegation, contention, claim or demand to which it pertains is based, and (B)
with respect to each such item of information, identify each person having knowledge thereof
and identity and describe (as defined in Paragraph III and IV hereof) each source thereof
including but not limited to each document, oral communication, act, action, activity, accounting,
negotiation, practice, process, occurrence, occasion, course of conduct, happening, relationship,
scheme, conference, discussion, development, service, instance, incident, event, calculation and
computation upon which you rely with respect thereto.
.
'.
.
VI. "Relates to" or "thereto": The terms "relates to" or "thereto," "relating to" or "thereto"
when used in connection with any act, action, activity, accounting, practice, process, occurrence,
occasion, course of conduct, contractual provision or document, happening, relationship, scheme,
conference, discussion, development, service, instance, incident, event, etc., means used or
occurring or referred to in the preparation therefore, or in the course thereof, or as a consequence
thereof, or referring thereto.
VII. Answer by Reference to Documents: If any interrogatory is answered by reference to a
document or group of documents, with respect to each such interrogatory answer, identify (as
defined in Paragraph III(C) hereof) the specific document or documents containing the requested
information.
VIII. "Person": The term "person" means all natural persons, corporations, partnerships or
other business associations, public authorities, municipal corporations, state governments, all
governmental bodies, and all other legal entities.
IX. "Complaint": Refers to the matter that you filed, as captioned above.
X. "Each": "Each" includes both "each" and "every."
XI. "And"/"Or": The conjunctive "and" and the disjunctive "or" shall be mutually
interchangeable and shall not be construed to limit any Interrogatory or Document Request.
XII. "Gender": The singular and masculine gender shall respectively include the plural and
feminine gender, and vice versa, and neither shall be construed to limit any Interrogatory or
Document request.
XIII. If you claim that an answer to any Interrogatory or subpart thereof, or any document
related to any Interrogatory or subpart thereof, or any document requested in the accompanying
Requests for Production of Documents is privileged or otherwise protected from discovery,
provide the following information:
(A) Identify each and every person involved in the act, communication, or
information, and, if the claimed privilege related to a document, identify each person who
prepared or participated in the preparation of the document and who received it, and each person
from whom the document was received; and
(B) Provide sufficient information concerning the act, communication, information or
document and the circumstances thereof to explain the claim of privilege and to permit the
adjudication of the propriety of that claim.
XIV. Parties: "Petitioner" - The term "petitioner" refers to Brian John Gross. "Respondent" _
The term "respondent" refers to you, Elizabeth Barth.
.
.
INTERROGATORIES
1. Personal Information. -- State:
RESPONSE:
(a) Your full name:
(b) Each other name, if any, which you have used or by which your have been
known:
(c) The name of any spouses and the dates and place of your marriage to such
spouses:
(d) The address of your present residence and the address of each other
residence which you have had during the past five years:
(e) Your present occupation and the name and address of your employer:
(f) Date of your birth:
(g) Your Social Security number; and
(i) The schools you have attended and the degrees or certificates awarded, if
any.
.
, .
.
2. State with particularity the factual basis for each claim you are asserting in this
case.
RESPONSE:
.
.
3. Witnesses.
RESPONSE:
(a) Identify each person who
(1) Was a witness to any statements or ceremonies which you claim to
have occurred in connection with your assertion that you are the
late David Gross' common-law wife;
(2) Has knowledge of facts concerning the issues referenced in the
Petition and Answer to Petition;
(b) With respect to each person so identified, state that person's relationship to
the events described in the Petition and Answer, and basis of knowledge
with respect to your alleged marriage to the late David Gross.
.
.
4. Statements. If you know of anyo~e that has given any statement (as defined by
the R.c.P.) concerning this action or its subject matter, state:
(a) The identity of such person;
(b) When, where, by whom, and to whom each statement was made, and
whether it was reduced to writing or otherwise recorded; and
(c) The identity of any person who has custody of any such statement that was
reduced to writing or otherwise recorded.
RESPONSE:
.
.
5. Demonstrative evidence. If you know of the existence of any photographs,
motion pictures, and/or video recordings relevant to the claim, state:
(a) The nature or type of such item;
(b) The date when such item was made;
(c) The identity of the person that prepared or made each item; and
(d) The subject that each item represents or portrays.
RESPONSE:
.
.
6. Trial witnesses. Identify each persons you intend to call as a non-expert
witness at the trial of this case, and for each person identified state your relationship with the
witness and the substance of the facts to which the witness is expected to testify.
RESPONSE:
.
.
7. Expert witnesses. Identify each expert you intend to call as a witness at the
trial of this matter, and for each expert state:
(a) The subject matter about which the expert is expected to testify; and
(b) The substance of the factors and opinions to which the expert is expected
to testify and a summary of the grounds for each opinion. (Y ou may file
as your answer to this interrogatory the report of the expert or have the
interrogatory answered by your expert.)
RESPONSE:
.
.
8. Trial exhibits. Identify all exhibits that you intend to use at the trial of this
matter and state for what purpose they will be used.
RESPONSE:
.
9. Books. magazines. etc.
such writing at trial state:
RESPONSE:
.
If you intend to use any book, magazine, or other
(a) The name of the writing;
(b) The author of the writing;
(c) The publisher of the writing;
(d) The date of publication of the writing; and
(e) The identity of the custodian ofthe writing.
.
.
10. Admissions. If you intend to use any admission(s) of a party at trial, identify
such admission(s).
RESPONSE:
.
.
11. Since you claim to be the common-law spouse of David Gross, state the reasons
why you permitted Ramona Gross to be Administratrix of the Estate of the late David Gross.
RESPONSE:
.
.
12. State why you listed yourself as the fiance of the late David Gross in the obituary
attached to the Petition.
RESPONSE:
.
.
13. Identify individuals to whom you held yourself out as the common-law spouse of
David M. Gross; state the method in which you held yourself out as the common-law spouse of
David M. Gross; and state the date and time of any such representation or communication.
RESPONSE:
.
.
14. State why the late David Gross testified that you were his fiance?
RESPONSE:
.
.
15. Explain David Gross' testimony in the personal injury lawsuit in Dauphin County
that you have never been married.
RESPONSE:
.
.
16. State why an engagement announcement for yourself and David M. Gross was
placed in The Patriot News if you are his common-law spouse.
RESPONSE:
.
.
17. State the date on which you indicate that the common-law marriage took place.
As to that date, state the persons present, the nature of the words exchanged, and the place and
time of such exchange.
RESPONSE:
.
.
18. Describe your role in the reporting of the death of David M. Gross for purposes of
the Death Certificate.
RESPONSE:
.
.
19. Identify any and all individuals who provided information for the Certificate of
Death. State as to why decedent, David Gross, was listed as "divorced with no surviving
spouse" on such Certificate of Death to the best of your knowledge, information and belief.
RESPONSE:
.
.
20. State your role as to the preparation of the obituary for the late David M. Gross
which appeared in The Patriot News on Tuesday, August 19,2003.
RESPONSE:
.
.
21. State as to the best of your knowledge, information and belief why you are listed
as the fiance in that obituary.
RESPONSE:
.
.
22. Identify any and all documentation which you provided to Social Security to
support your position that you were the common-law spouse of the late David M. Gross.
RESPONSE:
.
.
23. You allege that the Social Security Administration conducted an investigation and
contacted friends and relatives of David M. Gross. Identify all such friends and relatives of
David M. Gross, and describe their position on your assertion that you were the late David
Gross' common-law wife.
RESPONSE:
.
.
24. Identify any and all documentation of any type which supports your contention
that you were the late David Gross' common-law wife.
RESPONSE:
.
.
25. Describe why you permitted litigation relating to the late David Gross' personal
injury claim in Dauphin County to be conducted by Ramona Gross as representative of the David
Gross Estate if you were his common-law wife?
RESPONSE:
.
.
26. Describe any and all evidence, including your own conversations which you had
with representatives of the Social Security Administration which you believe establish your
claim. As to such conversations, state the date of the conversation, the time of the conversation,
the parties to the conversation, and the nature of the claims asserted.
RESPONSE:
.
.
27. Identify any and all parties who were afforded the chance to offer testimony or
cross-examine you relating to the Social Security claim.
RESPONSE:
.
.
28. State the nature of any and all evidence, documentary or otherwise, presented by
you to the Cumberland County Office of the Register of Wills in connection with your
appointment as Administratrix d/b/n of the Estate of David Gross.
RESPONSE:
.
.
29. As to your Affidavit of Common Law Marriage filed with your employer, state
the date which that was filed and advise as to any investigation undertaken by your employer.
As so any such investigation, indicate whom was contacted and the nature of statements made
by any such individuals, and state the names of any and all individuals at your employer with
whom you dealt in connection with said Affidavit, including names, addresses and job titles.
RESPONSE:
.
.
30. Describe any and all conversations between you and Father Sawdy. As to such
conversations, state the date, time, means of conversation and the parties present.
RESPONSE:
Respectfully submitted,
POST & SCHELL, P.C.
P~J2. ~/'r.A7~
PAULA J. CDERMOT, ESQUIRE
Attorney I.D. # 46664
240 Grandview Avenue
Camp Hill, P A 17011
(717) 612-6012
Attorneys for Petitioner, Brian John Gross
Date: June 15, 2004
.
.
VERIFICATION
I, Elizabeth Barth, Respondent in the foregoing action, hereby affirm that the facts and
matters set forth in the foregoing Petitioner's Interrogatories Directed to Respondent are true
and correct to the best of my knowledge, information, and belief. The undersigned understands
that the statements made therein are made subject to the penalties of 18 Pa. C.S. 94904 relating
to unsworn falsification to authorities.
Elizabeth Barth
Date:
,2004
.
.
CERTIFICATE OF SERVICE
I, Dena J. Stump, an employee of the law firm of Post & Schell, P.e., do hereby certify
that on the date set forth below, I did serve a true and correct copy of the foregoing document
upon the following persons at the following addresses indicated below by sending same in the
United States mail, first-class, postage prepaid:
James Nealon, Esquire
Nealon & Gover
2411 North Front Street
Harrisburg, PAl 711 0
POST & SCHELL, P.C.
Date: June/ G, , 2004
CPH 294586vl
EXHIBIT C
.po~
SCHEILpc
ATTORNEYS AT LAW
FILE
e
e'\
Paula J. McDermott
Direct Dial: 717-612-6012
Fax Number: 717-731-1985
pmcdermott@postschell.com
File No.: 1752/120940
July 28, 2004
James Nealon, Esquire
Nealon & Gover
2411 North Front Street
Harrisburg, PAl 711 0
RE:
Estate of David M. Gross
Cumberland County Orphans' Court No. 2103-1065
Gross v. Archibald Builders
Dauphin County CCP No. 2601 CV 1999
PENNSYLVANIA
PHILADELPHIA
PITTSBURGH
Dear Jim:
HARRISBURG
PRINCETON
When we talked, you indicated you were waiting for information from Social Security to
complete your responses to Interrogatories and Requests for Production of Documents.
Kindly produce whatever does not pertain to the Social Security and answer the
Interrogatories, subject to your right to supplement when you receive your information.
Meanwhile, I would like to schedule your client's deposition for Friday, August 13 in our
office. I enclose a Deposition Notice for that purpose. It seems to me that it would be
advisable for the parties to have taken your client's deposition prior to the Status Conference
on the 19th with Judge Hoover.
LANCASTER
AllENTOWN
NEW JERSEY
I will look forward to hearing from you in this regard.
Very truly yours,
~~~.*-(~
Paula f McDermott
PJM:djs
Enclosure
cc: Brian Gross
Thomas Brenner, Esquire
Johnna J. Kopecky, Esquire
240 GRANDVIEW AVENUE CAMP Hill, PA 17011 717.731.1970 WWW.POSTSCHELL.COM
A PENNSYLVANIA PROFESSIONAL CORPORATION
EXHIBIT D
"-
\.-
"
~.---
.
IN THE COURT OF COMMON PLEAS OF
DAUPHIN COUNTY, PENNSYLVANIA
DAVID GROSS,
Plaintiff
No. 2601 S 1999
vs.
ARCHIBALD BUILDERS,
Defendant JURY TRIAL DEMANDED
Deposition of: ELIZABETH M. BARTH
Taken by Counsel for Brian Gross
Date
August 13, 2004; 9:10 a.m.
Place
Post & Schell, P.C.
240 Grandview Avenue
Camp Hill, pennsylvania
Before
Susan D. Kashmere, RPR
Reporter - Notary Public
APPEARANCES:
POST & SCHELL, P.C.
By: PAULA J. McDERMOTT, ESQ.
For - Brian Gross
NEALON & GOVER,
By: ANDREW C.
P.C.
LEHMAN,
ESQ.
For - Elizabeth Barth
FILIUS & McLUCAS REPORTING SERVICE, INC.
Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327
'-'
'-'
'-'
.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
1
A.
.
Exam./McDermott - Barth
6
2
3
4
5
6
7
8
9
No alcohol or drugs.
MR. LEHMAN:
Ms. McDermott, usual
stipuations okay?
MS. MCDERMOTT:
Yes.
MR. LEHMAN:
She's going to reserve the
right to decide if she's going to read and sign
after completion.
MS. MCDERMOTT:
Now, the other thing I
wanted to put on the record in that regard also
is that we have not received answers to either
our request for production of documents or to
our interrogatories, the answers to which were
due on or about July 15th.
At that point I did give Mr. Nealon an
extension to answer, but in subsequent
correspondence requested that he do go ahead
and answer them and he hasn't, which may, you
know, depending on the answers this morning,
require at some future point another deposition
after we've received those answers.
And I
wanted to just put that in the record as a
statement.
I don't know if anyone else has
anything to add to that.
24 BY MS. MCDERMOTT:
25
Q.
We've got most of the preliminaries out of the
FILIUS & McLUCAS REPORTING SERVICE, INC.
Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327
.
.
CERTIFICATE OF SERVICE
I, Dena J. Stump, an employee of the law firm of Post & Schell, P.C., do hereby
certify that on the date set forth below, I did serve a true and correct copy of the
foregoing document upon the following persons at the following addresses indicated
below by sending same in the United States mail, first-class, postage prepaid:
James Nealon, Esquire
Nealon & Gover
2411 North Front Street
Harrisburg, PA 17110
POST & SCHELL, P.C.
Dafoe. /1i /1217,) yJ!-tl :yJ, 2004
..' '" \
/ \ I
I .. \ ("" )'
\ !~
", tl/t1. -c ........ .
. Dena. mp, Se~retary
6
.
.
,
Paula J. McDermott, Esquire
Attorney 1.0. # 46664
Post & Schell, P.C.
240 Grandview Avenue
Camp Hill, PA 17011
(717) 612-6012
E-mail: pmcdermott@postschell.com
IN RE: ESTATE OF DAVID M.
GROSS
IN THE ORPHANS' COURT
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2103-1065
BRIEF OF BRIAN JOHN GROSS IN SUPPORT OF PETITION FOR REVOCATION
OF LETTERS AND REMOVAL OF ADMINISTRATRIX
TO: THE HONORABLE JUDGE HOFFER
I. FACTUAL AND PROCEDURAL HISTORY
This dispute arises out of the August 17, 2003 death of David Gross and the
proposed distribution of proceeds obtained from a personal injury settlement in a matter
currently pending in the Court of Common Pleas of Dauphin County, Pennsylvania.1
After Mr. Gross' death, his mother, Ramona Gross, was appointed Administratrix of the
David Gross Estate on December 26, 2003. Ramona Gross subsequently died on
February 4,2004, leaving no personal representative of the David Gross Estate.
.
I The personal injury action docketed to No. 260 I-S-1999 was filed by David Gross as
Plaintiff arising from a work-related incident during the pendency of which Mr. Gross died. The
case was ultimately settled for $450,000.00. The amount of $156,255.26 is being held in escrow
by Post & Schell pending a determination of the true beneficiaries of David Gross.
~~
.
.
On or about April 20, 2004, in a clear attempt to obtain possession of the
aforementioned settlement proceeds, Elizabeth Barth, posing as Mr. Gross' common-
law wife, filed a Petition to Revoke Letters of Administration and requesting Letters of
Administration to be issued to Elizabeth Barth as David Gross' surviving spouse. Based
upon the fraudulent misrepresentations contained therein, Elizabeth Barth was
appointed Administratrix of the David Gross Estate.
On or about May 11, 2004, Brian J. Gross, the brother of the decedent, David
Gross, and the son of Ramona Gross, late Administratrix of the David Gross Estate,
filed the within Petition for Revocation of Letters and Removal of the Administratrix,
Elizabeth Barth, inasmuch as she has fraudulently and illegally taken control of the
Estate and as a result was not entitled to the grant of letters pursuant to 20 Pa. C.S.A.
~~3155, 3181. On or about April 27, 2004, Elizabeth Barth filed her response to the
Petition. A hearing has been scheduled in this matter before this Honorable Court on
Monday, October 4, 2004.
This Brief is respectfully submitted in support of Brian J. Gross' Petition for
Revocation of Letters and Removal of Administratrix.
II. ISSUE PRESENTED
A. WHETHER THE CURRENT ADMINISTRATRIX, ELIZABETH BARTH,
SHOULD BE REMOVED AS THE ADMINISTRATRIX OF THE DAVID GROSS
ESTATE INASMUCH AS SHE WAS NOT ENTITLED TO THE GRANT OF LETTERS
WHEN THE UNCONTROVERTED EVIDENCE REVEALS THAT SHE WAS NEVER
THE COMMON LAW WIFE OF DAVID GROSS AND AS SUCH, FRAUDULENTLY
AND ILLEGALLY ASSUMED SUCH A ROLE?
Suggested answer: AFFIRMA T1VE.
2
.
.
III. ARGUMENT
ELIZABETH BARTH SHOULD BE REMOVED AS THE ADMINISTRATRIX OF
THE DAVID GROSS ESTATE INASMUCH AS, DESPITE HER REPRESENTATIONS
TO THE CONTRARY, SHE WAS NOT ENTITLED TO THE GRANT OF LETTERS
WHEN THE UNCONTROVERTED EVIDENCE OF RECORD REVEALS THAT SHE
WAS NEVER THE COMMON LAW WIFE OF DAVID GROSS. AND WAS APPOINTED
THE ADMINISTRATRIX OF THE DAVID GROSS ESTATE THROUGH FRAUDULENT
AND/OR DECEPTIVE MEANS.
Elizabeth Barth is not entitled to serve as the Administratrix of the David Gross
Estate. inasmuch as she is not the surviving spouse of David Gross. See, 20 Pa.
C.S.A. &&3155. 3181. Any statement or contention that she is or was the common-law
wife of David Gross is simply inaccurate at best and a blatant misrepresentation of fact
at worst. Indeed, Elizabeth Barth is not, nor was ever married (legally, civilly or under
common law) to David Gross. The facts of record clearly establish that she was nothing
more than a long term girlfriend and/or fiance with an intent to be married to David
Gross at sometime in the future. Simply put, Elizabeth Barth was not as she
represented to this Honorable Court, the common law wife of David Gross, and as a
result thereof has fraudulently and illegally taken control of the David Gross Estate.
Accordingly, she should be removed as the Administratrix of the Estate since she was
not properly entitled to the grant of letters pursuant to 20 Pa. C.S.A. ~~3155, 3181.
As this Court is well aware, marriage in Pennsylvania is a civil contract which can
be established through ceremony or common law. See, In re: Estate of Manfredi, 159
A.2d 697 (Pa. 1960). Moreover, because claims for the existence of a marriage in the
absence of a certified ceremonial marriage present a "fruitful source of perjury and
fraud," Pennsylvania Courts have long viewed claims of common law marriage with
hostility and although tolerated, such claims are not encouraged. Staudenmaver v.
Staudenmaver, 714 A.2d 1016 (Pa. 1998). Indeed, in recent years, the Pennsylvania
3
.
.
Supreme Court has reaffirmed its position that claims of common law marriage are
disfavored and has gone so far as to discuss (if not completely implement) the absolute
abolition of the doctrine. kl The Pennsylvania Commonwealth Court in PNC Bank
Corporation v. WCAB (Stamos), 831 A.2d 1269 (Pa. Cmwlth. 2003) has reviewed the
long history of common law marriages, addressed the overwhelming negative effects of
such a principle, and held that, ". . .henceforth, this Court will recognize as valid only
those Pennsylvania marriages entered into pursuant to the marriage law procedures."
PNC Bank Corp., 831 A.2d 1269 at 1282. To say the least and in light of the foregoing,
it is a heavy and overwhelming burden to prove the establishment of a common law
marriage. Elizabeth Barth has, without question, failed to sustain this burden.
In Pennsylvania, it has been consistently held that a common law marriage can
only be created by the exchange of words in the present tense (verba in praesentI)
spoken with a specific purpose that the legal relationship of husband and wife be
created through such an exchange. Staudenmaver, 714 A.2d at 1020. The
Staudenmaver court further noted that the common law marriage contract does not
require any specific form of words; all that is essential is proof of an agreement to enter
into the legal relationship of marriage at the present time. lQ.; See also, Estate of
Gavula, 417 A.2d 168 (Pa. 1980). As noted above, words in the present tense are
generally required to prove a common law marriage.
The Courts have imposed an additional requirement that when applicable (i.e.,
no evidence of verba in praesenti or death of one of the parties), the party claiming a
common law marriage must establish: (1) constant cohabitation; and, (2) a reputation of
marriage in the community (which is not partial or divided but is broad and general). It
4
.
.
is essential to note, however, that constant cohabitation even when coupled with a
general reputation in the community is not marriage, but merely circumstances which
could give rise to a rebuttable presumption of marriage. Staudenmaver, 714 A.2d 106
(Pa. 1998); Estate of Manfredi, 159 A.2d 697 (Pa. 1960).
In this case, Elizabeth Barth, as the party with the burden to prove the existence
of a common law marriage, has failed to establish the exchange of words in the present
tense spoken between her and David Gross with the specific purpose that the legal
relationship of husband of wife be created thereby. Ms. Barth has also failed to
establish a reputation of marriage between her and David Gross in the community and
as such, cannot satisfy any of the elements necessary to establish a common law
marriage in Pennsylvania.
Specifically, although Elizabeth Barth claims to have lived with David Gross for
approximately seven years, there is no evidence to suggest that the two regarded
themselves or were generally regarded as being married to one another in any sense of
the term. Indeed, in her deposition testimony, Ms. Barth testified that people did not
refer to her and David as husband/wife, but rather "everyone knew us to be represented
as David and Beth." (Barth depo. at p. 27). Moreover, Ms. Barth testified that neither
she nor David Gross referred to one another as husband and wife, but rather introduced
one another or introduced each other as "this is my David and this is my angel." (Barth
depo. at p. 27). Ms. Barth further testified that although, on occasion, she may have
been referred to as "Mrs. Gross," she took exception to this denomination and in fact
would correct the speaker by saying, "My name is Elizabeth Barth." (Barth depo. at p.
72). She never introduced herself nor referred to herself as the wife of David Gross,
5
.
.
Mrs. Gross or any derivation thereof. (Barth depo. at pp. 27, 73). Indeed, Ms. Barth
also testified that they never referred to themselves as husband and wife nor mentioned
any asserted marriage to any members of Mr. Gross' family, including Mr. Gross'
mother. (Barth depo. at pp. 27,28).
The deposition testimony of Elizabeth Barth further establishes that any
discussion of marriage was always addressed as a future occurrence. Ms. Barth and
David Gross made wedding plans which had to be scheduled and rescheduled on
numerous occasions, always with the intent to ultimately be married at sometime in the
future. (Barth depo. at p. 31). Moreover, the deposition testimony reveals that David
Gross asked Ms. Barth to marry him and gave her an engagement ring for a marriage
that would occur, again, some time in the future. (Barth depo. at pp. 54-55). Indeed,
David Gross' obituary, based upon information supplied by Ms. Barth, referenced Ms.
Barth as his fiance. (Exhibit "B" to Petition). At the deposition of David Gross taken in
his personal injury lawsuit, David Gross indicated that Elizabeth Barth was his fiance.
(Barth depo. at p. 63; Exhibit "0" attached to Petition). Indeed, based on information
provided by Ms. Barth, David Gross' Death Certificate notes that at the time of his death
he was divorced with no surviving spouse - - not currently married as Ms. Barth would
like this Honorable Court to believe.2 (Exhibit "A" attached to Petition).
Clearly, Elizabeth Barth has been unable to establish that she and Mr. Gross had
a reputation within the community of being husband and wife and in fact, Ms. Barth has
only been able to produce evidence to suggest that, although the two were indeed a
couple, any marriage between Ms. Barth and David Gross was to take place in the
.
2 It is undisputed that David Gross was previously married and divorced from his first
wife in or about 1992.
6
.
.
future. Indeed, they did not refer to one another as husband and wife; Ms. Barth did not
refer to herself as Mrs. Gross; family and friends, including Mr. Gross' own mother,
referred to Ms. Barth as either his girlfriend or fiance; and David Gross himself, while
alive, referred to Ms. Barth as his girlfriend or fiance. For all intents and purposes, Ms.
Barth and David Gross lived with one another but acted and held themselves out as two
single individuals. In fact, Ms. Barth testified that their taxes were always filed as single
persons - not married.
The only shred of evidence in support of her position that Elizabeth Barth is the
common law wife of David Gross was a self-serving Affidavit of Common Law Marriage
which was executed by Mr. Gross and Ms. Barth. In her deposition at Pages 35 and 36,
Ms. Barth indicates the joint decision to file an affidavit of common law marriage with
Coventry Health Care (Health America) was only to purchase supplemental health
insurance for David Gross for purely financial considerations, not to establish a common
law relationship with David Gross. As this Court is well aware, although such an
Affidavit is admissible and constitutes probative evidence of the existence of a common
law marriage, it is not irrebuttable evidence and as such, is not conclusive proof of the
relationship. Indeed, in Bell v. Ferraro, 849 A.2d 1233, the Pennsylvania Superior Court
stated that, "we recognize [that an affidavit of common law marriage] is admissible and
probative evidence. It is not, however, irrebuttable evidence. The statute which allows
the contents of a notarized document to be admitted as proof of the facts stated therein,
also recognizes that a litigant 'may be permitted to contradict by other evidence any
such certificate.''' lQ. at 1235.
7
.
.
As in the Bell decision, the facts presented herein clearly contradict and outweigh
any probative value of the self-serving Affidavit of Common Law Marriage inasmuch as
Elizabeth Barth herself testified that the Affidavit was intended solely to allow David
Gross to be added to her health insurance. (Barth depo. at p. 33). It is quite evident in
this case that the execution and use of the Affidavit of Common Law Marriage was
simply to allow David Gross to receive health benefits. Ms. Barth herself testified as
much, and a basic review of the contents of the Affidavit, together with the contents of
Ms. Barth's deposition testimony, reveals significant discrepancies between the two.
Specifically, in her deposition testimony, Ms. Barth testified that, in her opinion, she and
Mr. Gross were married as of the day they met (i.e., September 8, 1995), whereas the
contents of the Affidavit reveal that she and Mr. Gross were married when the two
began to reside with one another (i.e., March 1, 1996). She also testified that the date
was February of 1996. Normally, married persons have only one anniversary. Given
the purpose behind the Affidavit of Common Law Marriage, together with the self-
serving nature of the same, the document and any facts offered in support or as history
concerning the document lack any probative value for this Honorable Court's inquiry
and ultimate decision.
Indeed, this case is strikingly similar to a case recently decided by the Honorable
Judge Bayley of this Court. In that decision issued this month, Ewinq v. Ickes, docketed
to 04-1887 in the Court of Common Please for Cumberland County, Judge Bayley found
that the parties were not married despite their having executed an Affidavit of Common
Law Marriage in order to obtain health insurance. A copy of Judge Bayley's decision is
appended hereto as Exhibit "A."
8
.
.
It is possible that Mr. Gross and Ms. Barth cared for one another very deeply.
However, simply caring for another person does not entitle Ms. Barth to the same rights,
obligations and entitlements of a spouse. The record in this matter is abundantly clear
that Ms. Barth and Mr. Gross were not common law husband and wife, did not hold
themselves out as husband and wife, did not refer to themselves as husband and wife,
did not tell any friends or family that they were married. In fact, at all times material
hereto, Ms. Barth and Mr. Gross intended to get married at some point in the future.
The fact that the parties intended to be married in the future is evidenced by the fact
that Ms. Barth and Mr. Gross, on several occasions, scheduled and rescheduled their
wedding nuptials and referred to one another as fiance, not as husband and/or wife and
produced an engagement announcement in The Patriot News indicating a wedding to
take place in the summer of 2004. Mr. Gross had purchased an engagement ring and
the announcement listed Elizabeth Barth as David Gross' fiance.
After David Gross' death, there was a letter of condolences issued to David's
mother depicting a phone call made by Elizabeth Barth, who introduced herself to
Father Sawdy as David's fiance after David's death. Surely, two married individuals do
not call one another a fiance and schedule a wedding ceremony if in fact they are
already married. Any statements to contentions to the contrary constitute an outright
misrepresentation of fact to this Honorable Court. For these reasons, as well as for the
reasons set forth above, Petitioner, Brian John Gross, requests that Elizabeth Barth be
removed as the Administratrix of the Estate of David Gross, and that he be granted
Letters of Administration for the Estate of David Gross.
9
.
.
IV. CONCLUSION
For the foregoing reasons, Petitioner, Brian J. Gross, respectfully requests this
Honorable Court to grant his Petition, remove Elizabeth M. Barth as the Administratrix of
the Estate of David Gross and appoint Brian J. Gross as the Administrator of the same.
Respectfully submitted,
POST & SCHELL, P.C.
J~:pr ~c ~.
PAULA . MCDERMOTT, ESQUIRE
Attorney I. D. # 46664
240 Grandview Avenue
Camp Hill, PA 17011
(717) 612-6012
Date: September 30, 2004
Attorneys for Petitioner, Brian J. Gross
10
EXHIBIT A
.
.
AMY M. EWING,
PLAINTIFF
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
DANIEL R. ICKES,
DEFENDANT
04-1887 CIVIL TERM
IN RE: DECLARATION AS TO MARRIAGE
BEFORE BAYLEY. J.
OPINION AND JUDGMENT
Bayley, J., September 2,2004:--
On April 28, 2004, plaintiff, Amy M. Ewing, filed a complaint in divorce against
defendant Daniel R. Ickes. Plaintiff avers that the parties were married on July 28, 1992, in
Enola, Cumberland County, Pennsylvania. Defendant filed an answer denying that he and
plaintiff are married. He then sought a declaratory judgment that he is not married to plaintiff.1
A hearing was conducted on August 23, 2004.
Amy Ewing and Daniel R. Ickes never had a ceremonial marriage. They started dating
in April, 1991. On July 28, 1992, they moved into a residence that he purchased. On
February 13, 1995, they had a daughter, Cayenne Ickes. On June 30, 1999, they purchased
and moved into a property in Newberry Township, York County. The deed was titled:
1 The Divorce Code, at 23 Pa.C.S. 3306, provides:
When the validity of a marriage is denied or doubted, either or both of the
parties to the marriage may bring an action for a declaratory judgment
seeking a declaration of the validity or invalidity of the marriage and, upon
proof of the validity or invalidity of the marriage, the marriage shall be
declared valid or invalid by decree of the court and, unless reversed upon
.
.
04-1887 CIVIL TERM
"DANIEL R. ICKES and AMY M. EWING, As Joint Tenants With The Right Of Survivorship."
On October 24, 1999, they had a son, Daniel Ickes.
The parties had joint financial accounts. They have, for many years, employed an
accountant to prepare their tax returns which they have always filed as single persons. In
numerous documents executed over the years they are identified as single persons except for
one signed by both of them on February 12, 2001. They both testified that a notarized
document was used to obtain medical insurance for her through his employment. It sets forth:
AFFIDAVIT OF COMMON-LAW MARRIAGE
We, Daniel R. Ickes and Amy Ewing, the undersigned, being duly sworn, do
hereby state that on 7/28/92, being freely able to contract, we entered into the
relationship of husband and wife under common-law at EnolalEast
PennsborolWest Fairview, PA, intending to be legally bound thereby and in full
recognition of the rights, duties, obligations associated therewith. At that time
we had the present intent to be married, evidenced by words in the present
tense uttered with a view and purpose of establishing the relationship of
husband and wife.
Daniel Ickes testified that although they have discussed getting married over the years
neither he nor Amy have ever agreed that they were married. They have not spoken words in
the present tense to that extent. He does not introduce her to others as his wife. Amy Ewing
testified that she has considered herself the wife of Daniel Ickes since July 28, 1992, when
they moved into this property. When asked why there was no formal ceremony at that time,
she testified: "Just the expense at the time with buying the new house and he just never
formally asked me to marry him at that time." She testified that since they started living
together, they have considered each other husband and wife and are known as such to their
appeal, the declaration shall be conclusive upon all persons concerned.
-2-
.
.
04-1887 CIVIL TERM
families and friends. Her mother testified that she has considered Daniel Ickes as her son-in-
law since 1992. No friends of either party testified. When Amy was asked why the Affidavit
Of Common Law Marriage which was signed by both of them on February 12, 2001, listed July
28, 1992 as the date of a common law marriage, she testified: 'That is the date that we moved
in together and began a monogamous relationship together." She was questioned:
Q Is it your testimony that since this date then you considered
yourself married to Mr. Ickes?
A Yes.
a And you believe that he considered himself married as well?
A Yes.
In Bell v. Ferraro, 849 A.2d 1233 (Pa. Super. 2004), the Superior Court of
Pennsylvania recently stated:
A common law marriage can only be created by an exchange of words in
the present tense, spoken with the specific purpose that the legal relationship of
husband and wife is created by such exchange. Staudenmayer v.
Staudenmayer, 714 A.2d 1016 (Pa.1998). The burden to prove a common law
marriage rests on the proponent of the marriage and such a claim must be
reviewed with great scrutiny. Id. (Footnote omitted.)
In Bell, Debra Bell appealed from an order of a trial court finding that no common law
marriage existed between her and Edward Ferraro.2 The facts were:
2 The Superior Court noted:
We recognize that the Commonwealth Court has purported to
prospectively abolish common law marriage in the context of Workers'
Compensation Claims. PNC Bank Corp. v. W. C.A.B., 831 A.2d 1269
(Pa.Cmwlth.2004). We point out, however, that (1) we are not bound by
decisions of the Commonwealth Court, and (2) both this Court and our
Supreme Court have declined the invitation to abolish common law
marriage, deferring such action to the legislature. See e.g.,
Staudenmayer, 714 A.2d 1016 (Pa.1998); Interest of Miller, 448 A.2d 25
-3-
.
.
04-1887 CIVIL TERM
~ '
1
Both parties testified and also presented documentary evidence to
support their respective positions. Appellant presented an "Affidavit of
Common Law Marriage" which was signed by both parties, as well as
correspondence referring to the parties as married. Appellee presented deeds
executed subsequent to the affidavit which evidenced the parties' purchase of
real estate as single individuals as well as tax returns in which Appellant's status
was listed as "Head of Household" and Appellee's status was listed as "Single."
Regarding the "Affidavit of Common Law Marriage," Appellant testified that
the parties did indeed exchange the requisite verba in praesenti and that they
informed their friends and relatives of the marriage. Appellee testified that the
affidavit was executed solely to enable him to add Appellant to his health
insurance and that they did not present themselves to the community as married
persons.
Appellant had children from a previous relationship.
The Superior Court stated:
Regarding the Affidavit of Common Law Marriage, we recognize that it is
admissible and probative evidence. It is not, however, irrebuttable evidence.
The statute which allows the contents of a notarized document to be admitted as
proof of the facts stated therein, also recognizes that a litigant "may be permitted
to contradict by other evidence any such certificate." 42 Pa.C.S.A. S 6105(a).
That is precisely what happened in the present case when Appellee testified that
the affidavit was intended solely to allow Appellant to be added to his health
insurance. As the trial court made a specific determination that this testimony
was more credible than Appellant's, we cannot find error or an abuse of
discretion in the trial court's finding that the affidavit was not dispositive.
In the case sub judice, both parties testified that their Affidavit Of Common Law
Marriage was used to add Amy to Daniel's health insurance provided by his employer. All
other documents referring to the parties and executed by them over the years identify them as
single persons. In 1999, almost seven years after they started living together they purchased
property titled as joint tenants with right of survivorship, not as tenant by the entireties. While
Amy maintains that she considers herself married she did not testify that she and Daniel ever
(Pa.Super.1982)
-4-
..;"....,.'
- 'I" ( ". '
.
04-1887 CIVIL TERM
exchanged words in the present tense, spoken with a specific purpose that a legal relationship
of husband and wife was created. Daniel testified that no such words were ever spoken. His
testimony is credible and is supported by other credible evidence. The Affidavit Of Common
Law Marriage was only executed for the purpose of her obtaining health insurance. The
parties are not married at common law. Accordingly, the following judgment is entered.
JUDGMENT
AND NOW, this
day of September, 2004, IT IS DECLARED THAT
Daniel R. Ickes and Amy M. Ewing ARE NOT MARRIED.
By the Court,
Edgar B. Bayley, J.
Linda A. Clotfelter, Esquire
For Plaintiff
Andrew C. Spears, Esquire
For Defendant
:5al
-5-
. . ' I
.. .
:'
AMY M. EWING,
PLAINTIFF
V.
DANIEL R ICKES,
DEFENDANT
.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
04-1887 CIVIL TERM
IN RE: DECLARATION AS TO MARRIAGE
AND NOW, this
BEFORE BAYLEY, J.
JUDGMENT
day of September, 2004, IT IS DECLARED THAT
Daniel R Ickes and Amy M. Ewing ARE NOT MARRIED.
Linda A Clotfelter, Esquire
For Plaintiff
Andrew C. Spears, Esquire
F or Defendant
:sal
By the Court,
Edgar B. Bayley, J.
.
.
CERTIFICATE OF SERVICE
I, Dena J. Stump, an employee of the law firm of Post & Schell, P.C., do hereby
certify that on the date set forth below, I did serve a true and correct copy of the
foregoing document upon the following persons at the following addresses indicated
below by sending same in the United States mail, first-class, postage prepaid:
James Nealon, Esquire
Nealon & Gover
2411 North Front Street
Harrisburg, PA 17110
POST & SCHELL, P.C.
Date: SeptemberSC!2004
,)
CPH 298833vl
11
.
.
CI
OCT 0 1 2004 \.1
IN RE: ESTATE OF DAVID M.
GROSS
IN THE ORPHANS' COURT
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2103-1065
ORDER
AND NOW, this _ day of
, 2004, for good cause
appearing, it is hereby ORDERED and DECREED that Respondent is precluded at trial
from:
(1) testifying as to any matters contained within the Interrogatory questions;
(2) producing any witnesses at the trial of this matter; and
(3) producing any documentary evidence at the trial of this matter.
BY THE COURT:
Hoffer, J
BUREAU OF INDIVIDUAL TAXES
INHERITANCE TAX DIVISION
DEPT. 280601
HARRISBURG, PA 17128-0601
.
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF REVENUE .
NOTICE OF INHERITANCE TAX
APPRAISEMENT~ ALLOWANCE OR DISALLOWANCE
OF DEDUCTION~, AND ASSESSMENT OF TAX ON
JOINTLY HELD OR TRUST ASSETS
REV-1548 EX AFP (01-0ll
ELIZABETH M BARTH
601B MALLARD RD
CAMP HILL PA 17011
DATE
ESTATE OF
DATE OF DEATH
FILE NUMBER
COUNTY
SSN/DC
ACN
09-20-2004
GROSS
08-17-2003
21 03-1065
CUMBERLAND
189-52-7272
03137535
Amount Remitted
DAVID
M
MAKE CHECK PAYABLE AND REMIT PAYMENT TO:
REGISTER OF WILLS
CUMBERLAND CO COURT HOUSE
CARLISLE, PA .j;f013
CUT ALONG THIS LINE ~ RETAIN LOWER PORTION FOR YOUR RECORDS ..... :~-::
RtEv=is4-S-E)f-AFFI-fo-i:03i---------------------------------------------------------------~~-------------------
--'
NOTICE OF INHERITANCE TAX APPRAISEMENT, ALLOWANCE OR DISALLOWANCE ~
DEDUCTIONS, AND ASSESSMENT OF TAX ON JOINTLY HELD OR TRUST ASSETS -
DATE ~J-20-2004
ESTATE OF GROSS DAVID M DATE OF DEATH 08-17-2003 COUNT~ CUMBERLAND
FILE NO. 21 03-1065
TAX RETURN WAS:
S.S/D.C. NO. 189-52-7272
(X) ACCEPTED AS FILED () CHANGED
JOINT OR TRUST ASSET INFORMATION
ACN
03137535
FINANCIAL INSTITUTION: PENNSVLVANIA STATE BANK
ACCOUNT NO.
10400448
TVPE OF ACCOUNT: () SAVINGS (X> CHECKING ( ) TRUST ( ) TIME CERTIFICATE
DATE ESTABLISHED 02-12-1998
X
1, 093.55
0.500
546.78
.00
546.78
.15
82.02
NOTE: TO INSURE PROPER CREDIT TO
YOUR ACCOUNT, SUBMIT THE
UPPER PORTION OF THIS NOTICE
WITH YOUR TAX PAVMENT TO THE
REGISTER OF WILLS AT THE
ABOVE ADDRESS. MAKE CHECK
OR MONEV ORDER PAVABLE TO:
"REGISTER OF WILLS, AGENT."
Account Balance
Percent Taxable
Amount Subject to Tax
Debts and Deductions
Taxable Amount
Tax Rate
Tax Due
X
TAX CREDITS:
PAVMENT RECEIPT DISCOUNT (+) AMOUNT PAID
DATE NUMBER INTEREST/PEN PAID (-)
INTEREST IS CHARGED THROUGH 09-28-2004 TOTAL TAX CREDIT .00
AT THE RATES APPLICABLE AS OUTLINED ON THE BALANCE OF TAX DUE 82.02
EVERSE SIDE OF THIS FORM INTEREST AND PEN. 1.21
TOTAL DUE 83.23
dV\
~"
~
* IF PAID AFTER THIS DATE, SEE REVERSE FOR CALCULATION OF ADDITIONAL INTEREST. *
( IF TOTAL DUE IS LESS THAN $1, NO PAYHENT IS REQUIRED.
IF TOTAL DUE IS REFLECTED AS A "CREDIT" ( CRJ, YOU HAY BE DUE A REFUND.
SEE REVERSE SIDE OF THIS FORH FOR INSTRUCTIONS. J
\~
"
.
IN RE: ESTATE OF DAVID M.
GROSS
?J~
AND NOW, this _ day of
.
-\\
JUL 1 3 2004 ~.
IN THE ORPHANS' COURT
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2103-1065
, 2004, for good cause appearing, it is
hereby ordered and decreed that the Petition for Hearing is GRANTED. This matter has been
/
scheduled for Hearing on /(~ (~~~_,~!<),k_k/A, 2004, at 9' _?L-fl:M. in Courtroom?> _
at the Cumberland County Courthouse, One Courthouse Square, Carlisle, P A before the
Honorable~c n :r f: JJ['-Ifv
1.::-.
'""f-..-'
-.-h..)
.
.......
('tit} .;;
. ~;.-f,
, --:::d
... .---,' -
:;;L::=::
.....J ~
" .~
<:J..-/,
'~-'~
_/ -B '-
:::;..
. ___/ '---.J
..JrO
../ -...0
-~~j
,-
v
BY THE COURT:
1.
e"
.
d
J::;-..
L
c::
r'"
N
\0
-c
i'"J
".,n
vJ
\1
it
~. ....,
.
.
IN RE: ESTATE OF DAVID M.
GROSS
IN THE ORPHANS' COURT
CUMBERLAND COUNTY, PENNSYL VANIA
NO. 2103-1065
PETITION OF BRIAN J. GROSS TO LIST MATTER FOR HEARING
AND NOW, comes Petitioner Brian 1. Gross, by and through his attorneys, Post &
Schell, P.c., and hereby petitions this Honorable Court to schedule the above-captioned matter
for hearing as follows:
1. The pleadings in the above-captioned matter are closed.
2. Written discovery and depositions will be completed on or before July 30, 2004.
3. Petitioner requests Your Honorable Court to schedule this matter for hearing in
August, 2004, or at the first available time and date thereafter.
WHEREFORE, Petitioner respectfully requests this Honorable Court to grant this Petition
and schedule this matter for hearing.
Respectfully submitted,
POST & SCHELL, P.c.
~;./)I€~
PAULA . MCDERMOTT, ESQUIRE
Attorney J.D. # 46664
240 Grandview A venue
Camp Hill, PA 17011
(717) 612-6012
Attorneys for Petitioner, Brian John Gross
Date: July 8, 2004
-
JUI,
i~04 Y
,. -.
I
.
.
CERTIFICATE OF SERVICE
I, Dena J. Stump, an employee of the law firm of Post & Schell, P.c., do hereby certify
that on the date set forth below, I did serve a true and correct copy of the foregoing document
upon the following persons at the following addresses indicated below by sending same in the
United States mail, first-class, postage prepaid:
James Nealon, Esquire
Nealon & Gover
2411 North Front Street
Harrisburg, P A 17110
POST & SCHELL, P.c.
Date: July 8, 2004
-
/ (
.
.
IN RE: ESTATE OF DAVID M.
GROSS
IN THE ORPHANS' COURT
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2103-1065
ORDER
AND NOW, this _ day of
, 2004, for good cause appearing, it is
hereby ordered and decreed that the Petition for Hearing is GRANTED. This matter has been
scheduled for Hearing on
, 2004, at .M. in Courtroom
at the Cumberland County Courthouse, One Courthouse Square, Carlisle, P A before the
Honorable
BY THE COURT:
1.
\~
........
.
.
IN RE: ESTATE OF DAVID M.
GROSS
IN THE ORPHANS' COURT
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2103-1065
PETITION OF BRIAN J. GROSS TO LIST MATTER FOR HEARING
AND NOW, comes Petitioner Brian J. Gross, by and through his attorneys, Post &
Schell, P.C., and hereby petitions this Honorable Court to schedule the above-captioned matter
for hearing as follows:
1. The pleadings in the above-captioned matter are closed.
2. Written discovery and depositions will be completed on or before July 30,2004.
3. Petitioner requests Your Honorable Court to schedule this matter for hearing in
August, 2004, or at the first available time and date thereafter.
WHEREFORE, Petitioner respectfully requests this Honorable Court to grant this Petition
and schedule this matter for hearing.
Respectfully submitted,
POST & SCHELL, P.e.
~,.'lte~
PAULA . MCDERMOTT, ESQUIRE
Attorney LD. # 46664
240 Grandview Avenue
Camp Hill, PA 17011
(717) 612-6012
Attorneys for Petitioner, Brian John Gross
Date: July 8,2004
, "
.. .
.
.
CERTIFICATE OF SERVICE
I, Dena 1. Stump, an employee of the law firm of Post & Schell, P.c., do hereby certify
that on the date set forth below, I did serve a true and correct copy of the foregoing document
upon the following persons at the following addresses indicated below by sending same in the
United States mail, first-class, postage prepaid:
James Nealon, Esquire
Nealon & Gover
2411 North Front Street
Harrisburg, P A 17110
POST & SCHELL, P.c.
Date: July 8, 2004
,
~
.
.
VERIFICATION
I, ELIZABETH M. BARTH, verify that the statements made in the foregoing
RESPONSE OF ELIZABETH M. BARTH TO PETITION FOR REVOCATION OF
LETTERS AND REMOVAL OF ADMINISTRATRIX are true and correct. I understand
that false statements herein are made subject to the penalties of 18 Pa.C.S.A. S4904
relating to unsworn falsification to authorities. The Verification of Elizabeth M. Barth
could not be obtained in the time prescribed by the Pennsylvania Rules of Civil
Procedure.
Date: 7 /110 Lf
~
James G. Nealon, III
\S
\
N
"\1"""
o
, ,.
.
.
NOTICE TO PLEAD
To: Respondent
You are hereby notified to plead
to the enclosed New Matter
of Petitioner within twenty (20) days from
service hereof or a default judgment may
be entered against you.
J~~. ~c~-
Attorney f Petitioner
IN RE: ESTATE OF DAVID M.
GROSS
IN THE ORPHANS' COURT
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2103-1065
PETITIONER BRIAN JOHN GROSS' REPLY WITH NEW MATTER
TO NEW MATTER OF ELIZABETH BARTH
23. Admitted in part and denied in part. It is admitted that long after the death of
David M. Gross, Respondent applied for survivor benefits with the Social Security
Administration. It is specifically denied that this application or the granting of it has any
probative value. By way of further answer, Elizabeth M. Barth acquiesced in decedent's mother
acting as administratrix of his estate and took no court action until after the death of decedent's
mother, Ramona Gross.
24. Denied. The answer to the averments of Paragraph 23 are incorporated hereby as
if set forth fully and at length. By way of further answer, an ex parte proceeding by the Social
Security Administration in which evidence was neither taken or cross-examination permitted, is
in no way probative that Respondent is the surviving spouse of David M. Gross.
25. Denied. Petitioner is unaware of an evidentiary investigation relating to the
approval of the claim of Respondent Barth. By way of further answer, the Answer is unverified
\l\
.
.
and accordingly, does not correspond with the requirements of the Pennsylvania Rules of Civil
Procedure.
26. Denied. Petitioner is unaware of any relatives or friends who confirmed that
Barth was the common law spouse. By way of further answer, the answer to the averments of
Paragraphs 23, 24 and 25 are incorporated hereby as if set forth fully and at length.
27. Admitted in part and denied in part. It is admitted that the Social Security
Administration made an ex parte decision based upon misrepresentations made by Respondent
Barth. Any probative value as to that determination for the purpose of these proceedings is
specifically denied.
28. Denied. The answers to the averments of Paragraphs 23-27 are incorporated
hereby as if set forth fully and at length. By way of further answer, the Social Security
Administration's determination was ex parte, not based upon any evidence of record, and,
accordingly, is not probative for the purposes of these proceedings.
29. Admitted in part and denied in part. It is admitted that Petitioner received a
questionnaire from Social Security. As to what the other siblings may have received, after
reasonable investigation, Petitioner is without information to form a belief as to the truth or
falsity of this averment, and proof is demanded at the time of hearing. By way of further answer,
Petitioner has never informed Social Security or anyone else that Respondent was his late
brother's common law spouse.
30. Denied. It is specifically denied that Social Security afforded any venue for
objection to its ex parte decision. By way of further answer, Petitioner has subsequently
objected vociferously to Social Security's ex parte determination in this matter.
.
.
31. Denied. After reasonable investigation, Petitioner is without information to form
a belief as to the truth or falsity of this averment, and proof is demanded at the time of hearing.
By way of further answer, Anthony Gross, who lives at some distance, would be the least able of
any of the siblings to have any knowledge as to the relationship between the late David Gross
and Respondent.
32. Denied. It is specifically denied that the doctrine of estoppel is in any way
implicated ill these proceedings. By way of further answer, Petitioner has vigorously and
forcefully objected to the determination made on an ex parte basis by the Social Security
Administration. By way further answer, Respondent Barth concealed material facts and made
misrepresentations to the Social Security Administration in order to obtain survivor benefits.
NEW MATTER OF BRIAN JOHN GROSS DIRECTED TO ELIZABETH BARTH
33. The answers to the averments of Paragraphs 23-32 are incorporated hereby as if
set forth fully and at length.
34. The Answer and New Matter should be stricken for failure to conform to the
Rules of Civil Procedure, since it is unverified.
WHEREFORE, Petitioner respectfully urges this Honorable Court to grant the Petition.
Respectfully submitted,
POST & SCHELL, P.c.
~d'~~
P A LA J. MCDERMOTT, ESQUIRE
Attorney LD. # 46664
240 Grandview Avenue
Camp Hill, PA 17011
(717) 612-6012
Date: June 14,2004
Attorneys for Petitioner, Brian John Gross
~
.
.
VERIFICATION
I, Brian Gross, Petitioner in the foregoing action, hereby affirm that the facts and matters
set forth in the foregoing Reply to New Matter are true and correct to the best of my knowledge,
information, and belief. The undersigned understands that the statements made therein are made
subject to the penalties of 18 Pa. C.S. ~4904 relating to unsworn falsification to authorities.
~
\ ,
~an rss '
Date: June \ 4, 2004
.
.
CERTIFICATE OF SERVICE
I, Dena 1. Stump, an employee of the law firm of Post & Schell, P.c., do hereby certify
that on the date set forth below, I did serve a true and correct copy of the foregoing document
upon the following persons at the following addresses indicated below by sending same in the
United States mail, first-class, postage prepaid:
James Nealon, Esquire
Nealon & Gover
2411 North Front Street
Harrisburg, PAl 711 0
POST & SCHELL, P.C.
1/
Date: June\~ 2004
. .
.
.
IN RE: ESTATE OF DAVID M. GROSS: IN THE ORPHANS' COURT
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 2103-1065
RESPONSE OF ELIZABETH BARTH TO
PETITION FOR REVOCATION OF LETTERS
AND REMOVAL OF ADMINISTRATRIX
1. Denied. Elizabeth Barth properly presented evidence of a common
law marriage between herself and David M. Gross. As a result, she is the surviving
:;pouse of David M. Gross and the properly authorized Administratrix of his Estate.
2. Admitted.
J. The averments contained in Paragraph 3 of the Petition are
:oncllEilons of law to which no response is required. To the extent that a response is
Jeemeo required, they are denied. On the contrary, Elizabeth Barth is the surviving
;pouse or David M. Gross and, therefore, is entitled to be the Administratrix.
4. Denied. Elizabeth Barth properly presented evidence that she is
118 cClnmon law spouse of David M. Gross.
~). It is admitted that a true and correct copy of the death certificate of
:Javid 1Vl. c3ross IS attached to the Petition as Exhibit A. It is denied that Ms. Barth
;)ro\jloed any information for the death certificate. On the contrary, the first time she
.:,aw th(~ death certificate was some time after the death of David M. Gross.
0. It is admitted that a true and correct copy of the obituary is attached
lS t:Xll1DII 8 to the Petition. It is denied that Elizabeth M. Barth prepared the obituary.
?attle!. tile obituary was prepared primarily by the funeral director with input from all of
\3
. .
:vlr. ClOSS relatives including Elizabeth Barth. It is admitted that the obituary lists
:::Iizaoeth M. Barth as 'fiance." The reason for this was that Elizabeth Barth and David
';ross IllTended to have a religious ceremony and celebrate their religious marriage with
rlemj',mcJ relatives. Regardless, David M. Gross and Elizabeth Barth were common
'JW spouses.
( .
Denied.
On the contrary, friends and relatives recognized
::.iiL::1C.;l!l t3arth as the common law spouse.
q
J.
It is admitted that Exhibit C to the Petition is a true and correct copy
11 ;i Ii ,Uer Vllrltten by Father Wallace Sawdy. Elizabeth Barth has no knowledge as to
[he SOlHce of Father Sawdy's information.
:J. Admitted. By way of further averment, the deposition was taken
.mm ',i file time that Elizabeth Barth and David M. Gross became common law
;I)OUSC,S.
10. Admitted. By way of further averment, the deposition was taken
,JrICJr I,! tile time that Elizabeth Barth and David M. Gross became common law
.;pouses.
: 1. It is admitted that Exhibit D to the Petition is a true and correct copy
If i)()I[I()n~; ot the deposition of David M. Gross. It is further admitted that he testified
'hat hl~; tw;t and only marriage ended in divorce. However, by way of further averment,
'Ill:; cJc'lJosltlon took place before David M. Gross and E!izabeth Barth became common
aw spouses.
12. It is admitted that Exhibit E is a true and correct copy of an
Jnqac,;ment announcement. By way of further averment, David M. Gross wanted to
.
.
ilave ;1 religious ceremony due to the religious beliefs of him and his family to formalize
the wedding between him and Elizabeth Barth. The religious ceremony in no way
,;nanqed the fact that they were common law spouses.
13. The averments contained in Paragraph 13 of the Petition are
;OIlClli lUllS of law to which no response is required.
14. The averments contained in Paragraph 13 of the Petition are
;()nCIU~"IOI1S ot law to which no response is required.
15. The averments contained in Paragraph 13 of the Petition are
;onclu~3Iolls of law to which no response is required.
16. The averments contained in Paragraph 13 of the Petition are
r;oncluslons of law to which no response is required.
17. The averments contained in Paragraph 13 of the Petition are
;ollclu:310ns of law to which no response is required.
18. It is denied. On the contrary, the Affidavit was merely a further
3tatement of the common law marriage between Elizabeth Barth and David M. Gross.
19. Denied. There is no requirement that a surviving spouse notify any
Hlf~ ()] .1 rRquest to be appointed personal representative of the Estate.
20. Denied. On the contrary, the sole heir to the Estate is Elizabeth M.
i3arth
21. Denied. The actions of Ms. Barth are to ensure her proper role in
the i:.~:)lclte of DaVid M. Gross.
~22. Denied. The Estate will be administered In accordance with
1ppllc;mle law.
.
.
NEW MATTER
23. Subsequent to the death of David M. Gross, Elizabeth M. Barth
.lpplieo tor Survivor Benefits with the Social Security Administration.
24. The only survivor benefits that Elizabeth M. Barth would be entitled
o WOUICl iJ8 as surviving spouse of David M. Gross.
')!::
c0.
The Social Security Administration conducted an investigation and
:ontClcwCl tl"lends and relatives of David M. Gross.
26. All friends and relatives confirmed that Elizabeth M. Barth was the
;ommon law spouse.
27. On February 3, 2004, the Social Security Administration awarded
;urvlvm hRnefits to Elizabeth M. Barth. A true and correct copy of the determination is
lttacl"I~;(1 !lereto and incorporated herein by reference as Exhibit A.
28. The Social Security Administration has recognized Elizabeth M.
13arth ~lS the common law spouse of David M. Gross.
29. Brian J. Gross, Petitioner herein, Anthony Gross and Maryellen
:3rouse wme all contacted regarding Elizabeth M. Barth's request to be named common
IW sp()use for purposes of Social Security benefits.
)0 Neither Anthony Gross, Maryellen Brouse nor Brian J. Gross
)bjectea to the request.
31. Elizabeth Barth believes and therefore avers that Anthony Gross
,1ctuallV Drovided a statement that Elizabeth M. Barth was the common law spouse.
::iz~lIJ'tn iV1 Barth is currently attempting to obtain a copy of the statement.
.
.
32. Petitioner IS estopped from challenging the status of Elizabeth
i3arth ;IS the common law spouse as he failed to object in the Social Security
.,\dminlstration proceedings.
WHEREFORE, Elizabeth M. Barth, urges this Honorable Court to dismiss
i 1 e IJ \ ; till () Il .
Respectfully submitted,
q-
By:
James G. Nealon, III, Esquire
1.0. #: 46457
NEALON & GOVER, P.C.
2411 North Front Street
Harrisburg, PA 17110
717/232-9900
Date: ~!~1{()i
EXHIBIT A
~
. .
Social Security Administration
Retirement, Survivors, and Disability Insurance
Important Information
1629
Mid-Atlantic Program Service Center
300 Spring Garden Street
Philadelphia, Pennsylvania 19123
Date: February 3/ 2004
Claim Number: 189-52-7272G1
0130 MAD,PC2,I,PH,T009,ns8
ELIZABETH M BARTH
20435 MOSS BEND CT
LUTZ FL 33558-5139
000001671 01 MB 0.389
1..11...11..1.1..1.1.1111..1.1....11..11.1.111..11111.1.1111.1
We are sorry to learn of your recent loss. Please accept our sincere
sympathy.
The amount of the check is $255.00.
-
..
-
~
..
!!
!
-
5
You are entitled to a Social Security payment because of the death of
D M GROSS. You will receive this payment soon.
This payment will go to the financial institution you selected.
-
~
-
~
~
;;
!!
What We WiD Pay
You will soon receive a check for $255.00. This is a one-time
payment we make because of a worker's death. It is the only money
you are due now.
Other Social Security Benefits
The benefits described in this letter are the only ones you can
receive from Social Security. If you think that you might qualify
for another kind of Social Security benefit in the future, you will
have to file another application.
Do You Think We Are Wrong?
If you disagree with this decision, you have the right to appeal. We
will review your case and consider any new facts you have. A person
who did not make the first decision will decide your case. We will
correct any mistakes. We will review those parts of the decision
which you believe are wrong and will look at any new facts you have.
We may also review those parts which you believe are correct and may
make them unfavorable or less favorable to you.
ENCLOSURE:
PUB. NO. 05-10058
C
SEE NEXT PAGE
189-52-7272G1
.
.
1629
2
. .
. You have 60 days to ask for an appeal.
. The 60 days start the day after you get this letter. We
assume you got this letter 5 days after the date on it
unless you show us that you did not get it within the 5-day
period.
. You must have a good reason for waiting more than 60
days to ask for an appeal.
. You have to ask for an appeal in writing. We will ask
you to sign a form SSA-561-U2, called "Request for
Reconsideration". Contact one of our offices if you
want help.
Please read the enclosed pamphlet, "Your right to Question the
Decision Made on Your Social Security Claim". It contains
more information about the appeal.
If You Have Any Questions
We invite you to visit our website at www.socialsecurity.gov on
the Internet to find general information about Social Security.
If you have any specific questions, you may call us toll free at
1-800-772-1213, or call your local Social Security office at
1-813-269-0223. We can answer most questions over the phone. If
you are deaf or hard of hearing, you may call our TTY number,
1-800-325-0778. You can also write or visit any Social Security
office. The office that serves your area is located at:
SOCIAL SECURITY
SUITE 120
14497 N DALE MABRY HWY
TAMPA FL 33618
If you do call or visit an office, please have this letter with
you. It will help us answer your questions. Also, if you plan
to visit an office, you may call ahead to make an appointment.
This will help us serve you more quickly when you arrive at the
office.
C
r.t.~~~
Steven G. DeMarco
Assistant Regional Commissioner,
Processing Center Operations
",
.;
.
.
Ci,UVl be:rlo..nd
IN THE COUNTY OF lJAUPlltN, PENNSYLVANIA
ESTATE OF DAVID M. GROSS
REGISTER OF WILLS
FILE NO. 21-03-1065
SUB P 0 E N A TO PRODUCE DOCUMENTS
OR THINGS FOR DISCOVERY PURSUANT TO
RULE 4009.22
TO: SOCIAL SECURITY ADMINISTRATION
Attn: Mrs. Dastillo
555 Walnut Street
Harrisburg, PA 17101
Within twenty (20) days after service of this Subpoena, you are ordered by
the Court to produce the following documents or things: All copies of applications,
documents, statements, affidavits, correspondence, memorandums or other documents
pertaining to the request of Elizabeth M. Barth to receive Survivors Benefits due to the
death of David Gross, Claim #189-52-7272 G1 at the offices of Nealon & Gover, 2411 North
Front Street, Harrisburg, PA 17110.
You may deliver or mail legible copies of the documents or produce things
requested by this Subpoena, together with the Certificate of Compliance, to the party
making this request at the address listed above. You have the right to seek in advance
the reasonable cost of preparing the copies or producing the things sought.
If you fail to produce the documents or things required by this Subpoena
within twenty (20) days after its service, the party serving this Subpoena may seek a
Court Order compelling you to comply with it.
'1
wi'
.
.
This Subpoena was issued at the request of the following person:
DATED:.51::Zllo1
Seal of the Court
;:-'-,1
-,,:' .""-~
James G. Nealon, III, Esquire
Supreme Court I.D. #46457
2411 North Front Street
Harrisburg, PA 17110
717 -232-9900
Attorney for Elizabeth M. Barth
BY THE COURT:
/1 ' '~ ~.~
/j L' I... ~ .. ';,'1'. I "d/ 12' .-
. /#--, -" -P~OTH~N6T AR:/ (J
}<~I~r 0+' I/J;II~ "*'
LIL~ no I I'll .
~< 0-'" . rp na.-I\:5 L .f)/...urt
H 10",.qno:; RF\'.rOl/O\'
This is to certify that this is a true ~.! the record which
with Act 66, P.L. 304, approved by t,~,eral Assembly, June
WARNING: It is illegal to duplicate this copy by photostat or photograph.
is on file in the pennsyl... Division of Vital Records
29, 1953.
In accordance
3151035
No.
~I/~
Charles Hardester
State Registrar
MAY 03 2004
Date
~105, 144 Rev 1/91
TYPEIPRINT
IN
PERMAN!NT
BLACK INK
COMMONWEALTH OF PENNSYLVANIA. DEPARTMENT OF HEALTH. VITAL RECORDS
CERTIFICATE OF DEATH
(Coroner)
019489
~.AM(.<AEmo1 ;:rA:l)
AGE (Last Birthday) UNDER 1 YEAR
Days
2004
~;:SI~Y) 0
~
~
V
twp
city/bora
lications of co
DUE m (OR AS A CONSE~UENCE OF)
estive heart failure
23b.
~S CASE REFERRED m MEDICA
Yo~
26.
: ~~:Z:,i~~en PART II:
i onset and death
23<.
tNERlCORONER?
NoD
her significant conditions contributing to death, but
not resulting in the underlying cause given in PART I
DUE TO (OR AS A CONSEQUENCE OF)
fJJ
fJJ
S
Ul
to
~
p:::
DUE TO (OR AS A CONSEQUENCE OF)
d
WERE AUTOPSY FINDINGS MANNER OF DEATH
A\.lo\ILABLE PRIOR 10
COMPLETION OF CAUSE
OF DEJITH? Natural
D,6;TE OF INJURY
(Mont!"'., Day, Year)
TIME OF INJURY
M.
INJURY AT WORK?
DESCRIBE HOW INJURY OCCURRED
Yes 0
No 0
Accident
IXJ Homicide 0
0 Pending )nvestigaliOn 0
0 Could not be determined 0
30.. 30b.
PLACE OF INJURY - AI home, farm, streel, factory, office
building. elc, (SpeCify)
'00.
28a. 28b.
CERTIFIER (Check only one)
"CERTIFYING PHYSICIAN (Physk;'a~, certifying cause ot death whe~ another pt1ysician has pronounced death and completed It err 23)
To the best ot my knowledge, duttl occurred due to the cauee(a) and manner.. .'-ted. ,
SuicIde
2..
o
I-
ffi
fil
o
w
"
u.
o
w
:>
<:
z
"PRONOUNCING AND CERTIFYING PHYSICIAN (Physiclar both pronouncing death and certifying to cause of death)
To the best of my knowledge, death occurred at the ttme, dilts, end piKe, end due to the cauee(e) and manner e. atated..
o
2004
"MEDICAL EXAMINER/CORONER
On the basi. at examination and/or InvHtlgation, In my opinion, death occurred at the time, date, and place, and due to the causae.) and
manner a. .ated.. . . . , . . . . . . . . . . . . .
31a.
REGISTRAR'S SIGNATURE AND NUMBER
PA
17111
1~~..:l..:::a...1
DATE FILED (Monlh, Day, Year)
34.
02 - //-v>
\\
. .
. ..
.
.
CITATION
Orphans' Court Division
Court of Common Pleas
Cumberland County, Pennsylvania
IN RE: Estate of David M. Gross Deceased
No. 21-03-1065
COMMONWEALTH OF PENNSYLVANIA
SS.
COUNTY OF CUMBERLAND
TO:
J ames Nealon, Esquire, Counsel for Elizabeth Barth
On Petition of Brian John Gross for:
Revocation of Letters and Removal of Administratrix
GREETINGS:
THE REGISTER OF WILLS OF CUMBERLAND COUNTY, PENNSYLVANIA COMMANDS
that you, laying aside all business and excuses whatsoever, file in the office of the Clerk of
Orphans' Court Division of the Court of Common Pleas of Cumberland County, County
Courthouse, Carlisle, Pennsylvania, a full and complete Answer, under oath, to each and every of
the averments of the aforementioned Petition within ten (10) days from the date of service of this
Citation, and that you Show Cause why such Petition for Revocation of Letters and Removal of
Administratrix should not be granted, and that you further abide by any Order of our said Court in
this matter.
If you fail hereof to answer and show cause why such petition should not be granted, the petition
may be taken pro confesso and a decree made against you.
DATE: May 14, 2004
Glenda Farner Strasbaugh
Clerk of the Orphans' Court
Cumberland County
,()
~f
,'.'
.
.
IN RE: ESTATE OF DAVID M.
GROSS
IN THE ORPHANS' COURT
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2103-1065
PETITION FOR REVOCATION OF LETTERS AND
REMOVAL OF ADMINISTRATRIX
AND NOW, comes Brian John Gross, by and through his attorneys, Post & Schell, P.C.,
and files this Petition for Removal of Administratrix and Revocation of Letters of Administration
pursuant to 20 Pa. C.S. 993181 and 3182. Brian John Gross, Petitioner, petitions this Court to
remove Elizabeth M. Barth as Administratrix of the Estate of David M. Gross for cause and
avers as follows:
1. Elizabeth Barth, Administratrix of the Estate of David M. Gross, has fraudulently
and illegally taken control of this Estate.
2. Petitioner, Brian John Gross is the brother of Decedent, David Gross, and the son
of Ramona B. Gross, late Administratrix of the David Gross Estate, who died on February 4,
2004.
3. Elizabeth M. Barth, current Administratrix of the Estate should be removed since
she was not entitled to the grant ofletters pursuant to 20 Pa. C.S.A. 93181.
4. Administratrix Barth was not as she represented to this Honorable Court, the
common law wife of the late David M. Gross.
5. Ms. Barth, who was the informant for the late David M. Gross' death certificate,
listed him as divorced. A true and correct copy of the death certificate of David M. Gross is
incorporated hereby and attached hereto as Exhibit "A."
q \/1;
,'.'
.
6. Elizabeth M. Barth prepared the obituary for the late David M, Gross. In that
obituary, she listed herself as "his fiance." A true and correct copy of the obituary is
incorporated hereby and attached hereto as Exhibit "B."
7. Ms. Barth has never held herself out to be the common law spouse of David M.
Gross, other than as part of her fraudulent effort to obtain health insurance for the late David
Gross.
8. A true and correct copy of a letter from Father Wallace E. Sawdy indicating that
Barth identified herself as David Gross' fiance is incorporated hereby and attached hereto as
Exhibit "C."
9. At the deposition of David Gross taken in his personal injury lawsuit in Dauphin
County, he indicated that Elizabeth Barth was his fiance.
10. He further indicated that Elizabeth Barth has never been married.
11. David Gross further testified his first and only marriage ended in divorce. A true
and correct copy of Pages 6, 7, 8, and 9 of the deposition of David Gross taken on May 12,2000
is incorporated hereby and attached hereto as Exhibit "D."
12. Elizabeth M. Barth caused an engagement announcement for herself and David
M. Gross to be placed in the Harrisburg Patriot News. A true and correct copy of that
announcement is incorporated hereby and attached hereto as Exhibit "E." That announcement
indicates that the two were to be married in the summer of 2004.
13. In order to create a common law marriage, there must be an exchange of words in
the present tense spoken with the specific purpose that the legal relationship of husband and wife
is created by such exchange.
'.'
.
14. The burden to prove a common law mamage rests on the proponent of the
marriage, and such a claim must be reviewed with strict scrutiny.
15. In Pennsylvania, common law marriages are tolerated but not encouraged, and
claims for the existence of common law marriage present a fruitful source of perj ury and fraud.
16. While an Affidavit of Common Law Marriage is admissible and probative
evidence, it is not irrebutable evidence.
17. A litigant is permitted to contradict it by other evidence any such certificate.
18. A so-called Affidavit of Common Law Marriage prepared by Elizabeth M. Barth
and David Gross was intended to procure health insurance for David M. Gross, and not to
establish common law marriage.
19. Elizabeth Barth's assumption of the Administratorship of this Estate was
improper in that the heirs of David Gross - Anthony Gross, MaryEllen Brouse and Petitioner
Brian John Gross, were not notified of the appointment.
20. The current Administratrix has no interest in the Estate and has only assumed its
administration to waste or mismanage the Estate.
21. Ms. Barth's intervention in this matter is a clear attempt to get possession of the
proceeds of a personal injury settlement in a matter pending currently in the Court of Common
Pleas of Dauphin County, Pennsylvania, docketed at No. 2601-S-1999.
22. The Estate of David Gross is likely to be jeopardized by continuance of Elizabeth
Barth as Administratrix of the Estate.
.,.'
.
WHEREFORE, Petitioner Brian John Gross respectfully requests this Honorable Court to
remove Elizabeth M. Barth as Administratrix of the Estate, and appoint Brian John Gross as
Administrator.
Respectfully submitted,
POST & SCHELL, P.C.
p f~:-J.<t'c~~e;~~SQU1RE
Attorney LD. # 46664
240 Grandview Avenue
Camp Hill, PA 17011
(717) 612-6012
Attorneys for Petitioner, Brian John Gross
Date: May 11, 2004
'.'
.
VERIFICATION
I, Brian Gross, Petitioner in the foregoing action, hereby affirm that the facts and matters
set forth in the foregoing Petition for Revocation of Letters and Removal of Administratrix are
true and correct to the best of my knowledge, information, and belief. The undersigned
understands that the statements made therein are made subject to the penalties of 18 Pa. c.s.
94904 relating to unsworn falsification to authorities.
Date: May' I, 2004
".,
.
CERTIFICATE OF SERVICE
I, Dena J. Stump, an employee of the law firm of Post & Schell, P.c., do hereby certify
that on the date set forth below, I did serve a true and correct copy of the foregoing document
upon the following persons at the following addresses indicated below by sending same in the
United States mail, first-class, postage prepaid:
James Nealon, Esquire
Nealon & Gover
2411 North Front Street
Harrisburg, PAl 711 0
POST & SCHELL, P.C.
I
i I
\\,.,f\.. (i I ( /i ,I
-' , . I
Dena J. Stump, Secretary
,/
Date: May' , 2004
EXHIBIT A
Thi;; is to ccrufv (ku (he informatic.'c: giyen i:; ccrrcc'-dy I"f,i(:'(i hurl< all ur,.gll.,.JTiii:~'lC \)} Clc:Jtl, duly filed
L(),~;J Registrar. The ilflgina! cerrifico, ,ill he kl1w~u'ded rl, the :'[;}[(' \-'ita] Record;; . .nee to; perrniinerit iilin!!,
\;'.> .i r I', Li \ !.~ ai.,
WARNING; It is illegal to duplicate this copy by photostat or phot~)gr(jph,("
j'.,,)o.
.. -'fj;!':'11'~1f1~:t:'~f;~~~'";:
",'" r' ,\, r r t . .,
l/~>>'- < "7;~,
~~\I )~~!
>.: 'tr \" . ! 11' ~.
~~\1.~~>j}.m' ,,~'c:~,t/'I
'''':0,"' 'Ii?rw h\ ":;"l'
"':'22:::[~;~~_:':c~~;;!t(! I:'
.......--,
L ", /' /'/
. / .A'/? {~>:/-.
.. ~'--~'Y~.L~:"'L'U~r-/'_--'--
,.~ .JI,T-~r"~l/3
>. !'c~!-1<e[':;srral .-
';/
I
Fee flH rhi:; certificate, $2.00
r-.> r:': r .....,.~ ...{
____.___,__Q~_~?__:L~~~::~~~___
F: S -j () J~ t~: -/ E::
:;U(
H10!,143 R.v. 2J8?
COMMONWEALTH OF PENNSYLVANIA. DEPARTMENT OF HEALTH' VITAL RECORDS
CERTIFICATE OF DEATH
STATE FilE NUMBER
n'PElPRINT
IN
I ';RMANENT
SLACK INK
-~
~,D
RACE. American Indian, Bteck. White. e:
15oeciIy)
WHiTE
SURVIVING SPOUSE
("wI6o.O'ftm~_)
lWf'
dtyil>o<'o
PA
1101
1111 I
lilll
TlME OF DEATH
'1';' Q
23b. 23c.
WAS CASE REFERRED TO A MEDICAL EXAMINER /CORONER?
26. Y.. D No ~
: Approxirrwne
,Interval between
: onset and death
PART II: Other signiflCanl conditions ccnuibuUng \0 68.th, but
nol resultino in the underty;ng (;8U$e given in PART I.
~ fV-. c!or welo'; /"
h'~~
~
2..
27. PART I: IEn'" 11\. d......, ...."m.. .f c:.",,\lullonll wf\lCh uu..d IN d..U,.
W" onl, 0_ ~u.. 0" ..ell un..
SaqUtlnually Usl condltton.
if any, lII.ding 10 Immediale
cause. Emet UNDERLYING
CAUS E (Disuse Dr in;ury
lhM ntU.lled eyenlS
,.autllog on d..th ) LAST
WAS ~ AUTOPSY WERE AUTOPSY FINDINGS
PERFORMED? ,o,VAlLABLE PRIOR TO
COMPLETION OF CAUSE
OF OEA TH1
l:
DUE TO lOA AS A CONSEOUENCE Oft:
DUE TO lOR AS A CONSEOUf.NCE Of I;
Suocido
~
D
D
D,o,TE OF INJURY
(Monlh. Day, Ya.,)
TIME Of INJURY
INJURY AT WORK? DESCRIBE HOW INJURY OCCURRED.
MANNER OF DEATH
NI\ul1Il
.Accident
Homicide
D
D
30a 3Gb. M.
o PLACE Of INJURY. Al home, 'arm, IlrHl.laesory, otIice
tIulldng, 'It.lsp.tllyj
30..
Yes D No D
Yes 0 No iZJ
Yo. D
NoD
Ptl'nchntilln....slig.UOl'l
Could nol be determined
REGISTRAR'S SIGNATURE AND NUMBER
W~ f ,(-1
".
21a. 21b.
CERTIFIER (Check only one)
"~~~J~FJ:l~,GOr~~S~~~~~e~~~s:.~:~,C:~~~~cf't~: I~ r~~~:::~(:~~~(':~~~l~~a~a h:t~r:~~~~~.:?~ .~~~~~, ~~~ .~~.~~~~~,~.'.t~.~ .~~.).
2..
"PRONOUNCING AND CERTIFYING PHYSICIAN (Physician both pronouncing dealh and certifying 10 CtlUIO 01 death)
To lhe be"t 01 my lI.nowllidge, (:Io..th Qccurn(:l at the Urn., date, and placa, and dua lo Ute ciI',JIooa(a) iI"tI ma"".r in ..t..led...
"MEDICAL EXAMINER/COROHER
On th, ball. of oJlilmlnaUon .n(:l/or In.....Ug..llon. In my opInion. Qoath o~curred .t tn. Urn., d..te, ami pllc.. and due to Ih, cau".(sl and
manner as slated
31&.
EXHIBIT B
'.
.
L.,
TUESDAY, AUGUST 19,2003 it
I David M. Gross
David M. Gross, 45, of Camp
Hill, cliQd Sunda.y, August 17,
2003 in the Holy Spirit Hospital.,
Camp Hill. ,-,
Bom in Harrisburg, h~ ljl'ad.
uated from Central Dauphhl
High Sellool,
Class of 1975;
, He ha.d vari-
ous sales posi-
tions in the
Harri-sburg
area, Was a lo-
cal Model, and
a fonner em.
ploYf!e of the
Harrisburg GROSS
Stat~ Hospital. He was kind.
sensitive and loved all people::
He Was a member of st. Cath.
erine LaboUre Catholic Church,
st. Joseph Cathoi1c Church.
Mechanicsburg, Knights of C0-
lumbus and Cosmopolitan In-
ternational.
, Surviving are his lnother, Ra-
I mana B. Zelinski Gross of
Harrisburg; a brother; Antllony
Gross ofPhlladelphia; a sister,
Mary Ellen Brouse of
Marysville; a brother, Brian
Gross of Dillsburg; nieCGs, Dan-
ielle Brouse. Celeste and DoOO-
nque Gross; a nephew; Joel
Gross; his flancee' ,Elizabeth
Barth. with whom he lived; nu-
'I ~nerous aunts, uncles and cous-
IDS.
I Mass of Christian Burial Will
be C>!lebrated at 11 a.m. Thurs:
" day, at St. Catherine LaboWe
Catholic Church,400Q Derry
Street, Harrisburg. Burial. \Yill
be in Holy Cross Cemetery.
Viewing will be held from ~;z;.9
p.rn.. Wednesday, at the Ne.l.1l
Funeral Home, 3501 Der.x:y
Street; Harrisburg. Recitau,Q!l
of the Rosary will ,be at 8,:90
p.m. Wednesday at the funer.al
home. .
Memorial contributions may
be made to the Disabled Ameri.
can Veterans, 4219 Trindle
Road, Camp Hill, PA 17011...
www.neillfh.com . .:c:
www.pennlive.com/obits :::
EXHIBIT C
. .~atherWaUaCeE.SaWdY .
115 North Street Apartment 109
Harrisburg, P A 17101
Phone: (717) 238-5380
August 25, 2003
r-1y dear l"lrs. Gross,
I was deeply moved by the telephone call I received from
David's fiance-, inf9rming me of David's death. I knew that
David was in great pain after his accident but never thought
that it was life-threatening. And" corning so, ,soon ,after your
husband's death has: brought you.a doublemeasure.of sorrow.
I returned home fronthe' rehab hospitalyeste:fday. ,This morn-
ing I offered my Mass for David and his fathei~
As I recall her telephone conversation, David's fiance
identified herself as Elizabeth Vars. \Vas she a relative of
Elizabeth "Sarge" Vars who died about twenty years ago?
I knew her well from her many trips to Holy Spirit Hospital
shen I \Vas Chaplain. there. I attended her funeral service at
the Neumeyer Funeral Home at Second and Calder Streets.
Again, mt deep~st sympathy to-you and Elizabeth. May God
comfort you in your sorrow! -
In His love,
fI,g
~
',.
.....
.i'
,.
-,.....
~.~ h
EXHIBIT D
,..'
· r(rJ)O'[p'o ~
" .' LI
<::::/ ~\. J
DAVID GROSS,
PLAINTIFF
IN THE COURT OF COMMON PLEP.S
DAUPHIN COUNTY, PENNSYLVANIA
V NO. 2601 S 1999
ARCHIBALD BUILDERS,
DEFENDANT JURY TRIAL DEMANDED
DEPOSITION OF: DAVID GROSS
TAKEN BY: DEFENDANT
BEFORE: DIANE F. FOLTZ, RMR
NOTARY PUBLIC
DATE: MAY 12, 2000, 11:36 A.M.
PLACE:
GOLDBERG, KATZMAN & SHIPMAN,
320 MARKET STREET
HARRISBURG, PENNSYLVN~IA
p C'
.. . 1......-.
F...PPEARANCES:
LITVIN, BLUMBERG, MATUSOW & YOUNG
BY: DONALD E. MATUS OW , ESQUIRE
FREDRIC S. EISENBERG, ESQUIRE
FOR - PLAINTIFF
GOLDBERG, KATZMAN & ~HIPMAN, P.C.
BY: JOHN A. STATLER, ESQUIRE
FOR - DEFENDANT
2080 Linglest0wn Road · Suite 103 · Harrisburg; PA 171] 0
717.540.0220' fax 717.540.0221 · Lancaster 717.393.5101
Page 6 Page ~
I A We moved into there the 4th of July weekend, I been married?
2 1998. 2 A Yes. i
3 Q So it's corning up on two years? 3 Q Okay. When were you married?
4 A Yes. 4 A November the 9th, 1985.
5 Q And where did you and Elizabeth live before that? 5 Q And did that marriage end in ruvorce?
6 A We lived at 2524 South Market Street, 6 A Yes.
7 Mechanicsburg. 7 Q When were you divorced?
, 8 Q How long has Elizabeth Barth been your fiancee? 8 A In the spring of either' 9 I or '92.
9 A Since carly 1996. 9 Q Was that your first and only marriage?
10 Q Okay. How long have you been dating Elizabeth 10 A Yes.
II Barth? II Q And who were you married to?
12 A Since 1995. 12 A Wendy Kay.
13 Q Is she employed? 13 Q K as in the initial K?
14 A Yes. 14 A K -a-yo Do you want her maiden name')
15 Q Where does she work? 15 Q Yes.
16 A Capital Recovery Associates. 16 A Felker, F-e-l-k-e-r.
17 Q Is that a collection agency? 17 Q Okay. Is she remarried?
18 A Yes. ] 8 A I'm not sure.
19 Q And what does she do for them? 19 Q Did you have any children to that marriage?
20 A Oh, she just got a promotion. She's an upper 20 A No.
2] level manager. 21 Q Do you have any children?
22 Q How long has she worked for Capital Recovery 22 A No.
23 Associates') 23 9 Do you know where Wendy Kay Felker lives?
24 A Either earlier this year or late last year, 24 A Presently?
25 somewhere around the holidays. 25 Q Yes.
--
Page 7 Page 9
] Q Okay. Where was she employed before Capital I A Somewhere in York County.
2 Recovery Associates? 2 Q Is she employed?
3 A Mornson-Voss Eye Associates. 3 A I don't know.
4 Q And what did she do for them') 4 Q Was she ever employed while you were married?
5 A Office manager. 5 A Yes.
6 Q And how long -- approximately how long did she 6 Q What was -- to your knowledge, where did she last
-. work for Morrison Eye Associates? 7 work?
I
8 A A couple of years. 8 A I'm not sure, but I believe she worked for an
9 Q Is that where she was working when you met her') 9 I11surance company.
]0 A No 10 Q Like in an agency or -- I
1] Q Where was she working when you met her? ]] A She was a clerk in an insurance company. That's
12 A She worked for White Pines Banquet and Catering. 12 all I know.
13 Q And what did she do for them? 13 Q You don't know what insurance company it was?
14 A She was the banquet and catering manager. ]4 A No. It's been awhile, and we were separated
] 5 Q Okay. Has Elizabeth Barth ever been married? 15 Q All right. Let me start with some questions
]6 A No 16 about your education. You graduated from Central Dauphin
17 Q How old is she? ]7 High School?
]8 MR. MAllJSOW And we're not going to tell her you 18 A Yes.
19 had to stop and think about it. I mean, Fred might, but 19 Q What year?
20 I'm not g0111g to. 20 A 1975.
21 THE WITNESS Somewhere around 30 years old. 21 Q And did you have any schooling heyond high
22 MR STATLER Okay. 22 school?
23 MR. MATUSOW: Now she's going to know. 23 A Yes. I attended Harrisburg Area Community
24 BY MR. STATLER 24 College in ] 976.
25 Q We won't send her the transcript. Have you ever 25 Q Okay.
DA VID GROSS
MAY 12,2000
Page 6 - Page 9
-
..'
Multi - Pane ™
b
."
HUGHES, ALBRIGHT, FOLTZ & NATALE
717-540-0220\717-393-5101
EXHIBIT E
.,.
,."~;:fo.~" --':):
- - "~~;'-ri .
c:,;;,j'i'."BARTH';GROSS'~1~,~~~> ::; "\'
I' ';'tt." -'q ,~; ",: '.<{:.;::(,:' .'.
' :~NGAGEMENT-': ' :
MechaIl1c:~pl.lI:g'Area'Hlgh."."'"
Schpol~Ild:attende.I' 'Ti~~'
:..r~r, "i\.~j~,;~~:,;,,= ':."
. ~'\.-"
.It
.
-23-2004 16: 07
NEALON & GOVER
.
.
717 236 9119
P.01/04
April 23, 2004
2411 N. Front 5t
Hanisburg. PA 17110
717-232-9900
717-236-9119
NEALON & GOVER
Fax
101 Glenda - Register of Wills, CUmberland Co. 240-7797
cc: Elizabeth Barth
Re: Elizabeth M Barth & the Estate of David Gross
From: JAMES G. NEALON, ESQUIRE
NEALON & GOVER
Fax:
Pages: 4 induding cover
DATE: 4123104
. Comments:
Please see attached.
. Page 1
B
r ~EAWNil
122~~~~' ·
.
.
717 236 9119 P.02/04
---, - /'
(;-j iOu'S
2411 NolITlt FRONT S~
HAIooSBUIl.G. PA 17110
RPR-23-2004 16:07
NERLON & GOVER
TEl..:EPHONE (717) 232.9900
FACSIMILE (717) 236-9119
JAMES G. NEALON, HI
jnealon@nealon-gover.com
DELIVERY VIA FAX
240..7797
April 23, 2004
;{!- ()~) - j()l5
Glenda F. Strausbaug
Cumberland County Register of Wills
One Courthouse Square
Carlisle, PA 17013-3387
RE: Elizabeth M. Barth & the Estate of David Gross
Dear Ms. Strausbaug:
This will selVe as a follow up to the telephone conference that we had earlier this
morning. As I advised youj I do have in my possession a copy of the letter that the
Administration issued regarding the Estate of Ramona B. Gross. I am enclosing a copy
for your review.
As you can see, she died on February 4, 2004, and letters of Administration were
issued on March 12, 2004.
As I explained to you, I have not yet received the original Death Certificate from
the Commonwealth but will forward it to you upon receipt. In the meantime, I
understand that you will issue Letters of Administration to Elizabeth Barth provided that I
give you the Death Certirficate upon receipt. I assure you that I will.
Also, please allow this letter to confirm that we will withdraw the Petition to
Revoke Letters of Administration issued to Ramona B. Gross.
r
..
NEALON & GOUER
.
717 235 9119
P.03/04
APR-23-2004 15:07
.
Glenda F. Strausbaug
April 23, 2004
Page 2
If you could mail the Letters of Administration to me, it would be greatly
appreciated. Thank you for your attention to this matter.
Very truly yours,
NEALON & GOVER, P.C.
~=i$?/cC
James G. Nealon, III
JGN/nl
cc: Elizabeth M. Barth (via U.S. Mail)
NEALON & GOVER 717 236 911,:,.., ...P:.04/04
..... ,...._. '."'. -....,.., ._~ ~''''''''!'~.J'-'"~J.....''a~",~.::,.,..~.~~.... :
. '''':''-'.~f'';':~'~f''''~'''~:1lf",.~~li:,:.:;,..l<''~MWi~,..lC::;'1,...... , ;
. :~.... '~:}';'I.:f-'"~"';'~"'l": c,.!~..~'(~r')~~~;:t~:.:... ~:~f-.?~~>~~.g::;,"~"::>"'~.:.-.~.~j>'~~'l;}\' .
Certificate"af..Grant ~f Letters ~Testamentiiry . . ":...:: '. ~ "':"
f
APR-23-2004 16:07
~ ... ... .
~'. '.
No. 0251-2004
. E'State of RAMONA B. GROSS
r.... "
..
..
H'
o'
f
r
";(.
SociJ Security No.217 24 6331
Whereas, on the 12TH
l'
dayof MARCH. 2004 instknent(s) dated
p
was (were) admitt~ to probate as the last
I
. DECEMBER 17. 2003
will of RAMONA B. GROSS
late of LOWER PAXTON TWP.
"
, who died on the 4~
~~
day ~f FEBRUARY, 2004
and
Whereas, a true copy of the will as probated is annexed hereto.
Therefore, I, Sandra C. Snyder , Regi_st.~ o(:Wills in and for the .
. ':'~".':.:.'::/ :,:' oj-:. "-." :.~,:::::'..r:~ '.~:' '::;~';'" -: '~I..";i;i' ....~' - ,')' : . (,
County of Dauphin, in the CommonwCalth ofPennSylvimia, hereby certify tliat"lhavethis day granted
Letters Testamentary to
MARY ElLEN ANDREA BROUSE
BRIAN JOHN GROSS
')~
~'''.
;..'
who has duly qualified as Personal Representative(s) and has agreed to administer the estate according to
law, all of which fully appears'ofrecord in my Office at Dauphiri. County Court House, Ramsburg.
. Pennsylvania. .
In Testimony Whereof; I have hereunto set my hand and affixed the sef of~y Office on the
12TH day of MARCH. 2~04
vkntLt<<. e ~~
. ...o.,l:lty Register of. ills
.,
,
I ~
II
.
.
LITVIN, BLUMBERG, MATUSOW & YOUNG
By: Donald E. Matusow, Esquire/Fredric S. Eisenberg, Esquire
Identification Nos.: 13170/58243
The Widener Building, 18th Floor
1339 Chestnut Street Attorneys for Respondents
Philadelphia, P A 19107
(215) 557-3300
IN RE: ESTATE OF DAVID GROSS
REGISTER OF WILLS
CUMBERLAND COUNTY
PENNSYL VANIA
NO.: 21-03-1065
ANSWER OF RESPONDENTS IN OPPOSITION TO THE PETITION OF
ELIZABETH M. BARTH TO REVOKE LETTERS OF
ADMINISTRATION AND REQUESTING THAT LETTERS
OF ADMINISTRATION BE ISSUED TO ELIZABETH M. BARTH
The respondents, Mary Ellen Andrea Brouse and Brian John Gross, as Co-Executors of
the Estate of Ramona Gross, deceased, by and through their attorney, Fredric S. Eisenberg,
Esquire, respectfully object to the Petition of Elizabeth M. Barth and answer as follows:
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Admitted.
6. - 7. Denied. It is specifically denied that Ms. Barth was married to David Gross at the
time of his death by virtue of a Common Law Marriage. By way of further answer and
background, the respondents' counsel represented Mr. Gross is a negligence action filed with the
Court of Common Pleas of Dauphin County (David Gross v. Archibald Builders, Court of
Common Pleas, Dauphin County, Civil Action No. 2601 S 1999), which stemmed from the
'l
.
.
"
severe and permanent injuries Mr. Gross suffered when he fell through an uncovered stairway
hole at a house under construction by Archibald Builders. Mr. Gross fell through one story of
this exposed hole and landed on the structure's concrete basement floor. This case was mediated
before The Honorable Albert Blakley on January 12,2004 and after substantial negotiations the
parties agreed to a settlement. A Petition to Approve the Settlement of the Survival Action is
presently pending before the Honorable Todd A. Hoover in Dauphin County.
After settlement, plaintiff s counsel was notified by counsel representing Ms. Barth that
she intended to be appointed as the personal representative of the Estate of David Gross and
assert a claim as David Gross' common law wife and beneficiary of the proceeds payable to the
Estate. (Counsel for Ms. Barth simply attached a Health America form and asserted that this
established a Common Law Marriage).
Contrary to this healthcare form, Mr. Gross at his deposition, succinctly testified that he
was not married to Ms. Barth (attached hereto as Exhibit "A" are relevant excerpts of the
deposition transcript of David Gross at p. 7 line 25 - p. 8 line 12). Additionally, Ms. Barth and
Mr. Gross announced their engagement in a local paper and announced a summer 2004 wedding
in Harrisburg, Pennsylvania. (Attached hereto as Exhibit "B" is the announcement in the local
newspaper of the Barth-Gross engagement). Further, attached hereto as Exhibit "c" is David
Gross' obituary which was drafted by Ms. Barth and indicated that she was his "fiance."
Moreover, attached hereto as Exhibit "D" is a August 25,2003 letter from Father Wallace Sawdy
expressing his sympathies to Mrs. Gross for the loss of her son David and describing Ms. Barth
as David's "fiance." Finally, attached hereto as Exhibit "E" is the death certificate of David
Gross. A review of the death certificate indicates that Elizabeth Barth was the "informant" and
2
.
.
she indicated that Mr. Gross' marital status was divorced and that there was no surviving spouse.
(Mr. Gross was previously married and divorced).
8. - 10. Denied. Respondents incorporate by reference answers to paragraphs 6-7 above.
Accordingly, the Letters of Administration were properly issued to Ramona Gross since
Elizabeth Barth was not married to David Gross at the time of his death and is not of a class of
higher priority.
WHEREFORE, respondents, Mary Ellen Andrea Brouse and Brian John Gross urges the
Register of Wills to revoke the Letters of Administration D.B.N. recently issued to Elizabeth M.
Barth and reissue the Letters of Administration to Ramona Gross and her surviving children,
Mary Ellen Andrea Brouse, Brian John Gross and Anthony Jerome Gross.
Respectfully submitted,
LITVIN, BLUMBERG, MATUSOW & YOUNG
By: -7.
~s. EISENBERG, E
Attorney for Respondents
3
.
.
VERIFICATION
I, Fredric S. Eisenberg, attorney for respondents herein, hereby verify that the facts set
forth in the foregoing Answer in Opposition to the Petition of Elizabeth M. Barth to Revoke
Letters of Administration and Requesting that Letters of Administratoin be issued to Elizabeth
M. Barth are true and correct to the best of my knowledge, information and belief; and, that this
statement is made subject to the penalties of 18 Pa.C.S.A. 94904 relating to unsworn falsification
to authorities.
FRE RIC S. EISENBERG,
Attorney for Respondents
EXHIBIT A
.
.
i~gO.. [po.,... (...
i {, -. i ' ,
\. \, ,c. t \,'
'\..=::~~.,,:-- \~ "'--
DAVID GROSS, IN THE COURT OF COMMON PLEAS
PLAINTIFF DAUPHIN COUNTY, PENNSYLVANIA
V NO. 2601 S 1999
ARCHIBALD BUILDERS,
DEFENDANT JURY TRIAL DEMANDED
DEPOSITION OF: DAVID GROSS
TAKEN BY: DEFENDANT
BEFORE: DI~~E F. FOLTZ, RMR
NOTARY PUBLIC
DATE: K~Y 12, 2000, 11:36 A.M.
PLACE: GOLDBERG, KATZMAN & SHIPMAN, P.C.
320 ~~~KET STREET
HARRISBURG, PENNSYLVAl~IA
F_PPE.A...RANCES :
LITVIN, BLUMBERG, l~TUSOW & YOm~G
BY: DONALD E. MATUS OW , ESQUIRE
FREDRIC S. EISENBERG, ESQUIRE
FOR - PLAINTIFF
GOLDBERG, KATZK~ & SHIPMAN, P.C.
BY: JOHN A. STATLER, ESQUIRE
FOR - DEFENDANT
2080 Linglestown Road · Suite 103 · Harrisburg, PA 17110
717.540.0220. fax 717.540.0221 · Lancaster 717.393.5101
, .
DA'lID GROSS
MAY 12,2000
.
Page 6
I A We moved into there the 4th of July weekend,
2 1998.
3 Q So it's coming up on two years?
4 A Yes.
5 Q And where did you and Elizabeth live before that?
6 A We lived at 2524 South Market Street,
7 Mechanicsburg.
8 Q How long has Elizabeth Barth been your fiancee?
9 _A Since early 1996.
10 Q Okay. How long have you been dating Elizabeth
II Barth?
12 A Since 1995.
13 Q Is she employed?
14 A Yes.
IS Q Where does she work?
16 A Capital Recovery Associates.
17 Q Is that a collection agency?
18 A Yes.
19 Q And what does she do for them?
20 A Oh, she just got a promotion. She's an upper
21 level manager.
22 Q How long has she worked for Capital Recovery
23 Associates?
24 A Either earlier this year or late last year,
25 somewhere around the holidays.
Page 7
I Q Okay. Where was she employed before Capital
2 Recovery Associates?
3 A Morrison-Voss Eye Associates.
4 Q And what did she do for them')
5 A Office manager.
6 Q And how long -- approximately how long did she
7 work for Morrison Eye Associates?
8 A A couple of years.
9 Q Is that where she was working when you met her?
10 A No.
II Q Where was she working when you met her?
12 A She worked [or White Pines Banquet and Catering.
13 Q And what did she do [or them?
] 4 A She was the banquet and catering manager.
15 Q Okay. Has Elizabeth Barth ever been married?
16 A No.
17 Q How old is she?
]8 MR. MAllJSOW: And we're not going to tell her you
19 had to stop and think about it. I mean, Fred might, but
20 I'm not going to.
21 THE WITNESS: Somewhere around 30 years old.
22 MR. STATLER: Okay.
23 MR. MATUSOW: Now she's going to know.
24 BY MR. STATLER:
25 Q We won't send her the transcript. Have you ever
Page 6 - Page 9
Multi- Paae ™
l:>
.
Page 8
I been married?
2 A Yes.
3 Q Okay. When were you married?
4 A November the 9th, 1985.
5 Q And did that marriage end in divorce?
6 A Yes.
7 Q 'When were you divorced?
8 A In the spring of either '91 or '92.
9 Q Was that your first and only marriage?
10 A Yes.
II Q And who were you married to?
12 A Wendy Kay.
13 Q K as in the initial K?
14 A K-a-y. Do you want her maiden name?
15 Q Yes.
16 A Felker, F-e-I-k-e-r.
17 Q Okay. ]s she remarried?
18 A I'm not sure.
19 Q Did you have any children to that marriage?
20 A No.
21 Q Do you have any children?
22 A No.
, Do you know where Wendy Kay Felker lives?
123 Q
24 A Presently?
25 Q Yes.
Page 9
A Somewhere in York County.
Q Is she employed?
A I don't know.
Q Was she ever employed while you were married?
A Yes.
6 Q What was -- to your knowledge, where did she last
7 work?
8 A I'm not sure, but I believe she worked for an
9 msurance company.
10 Q Like in an agency or --
] 1 A She was a cierk in an insurance company. That's
12 all I know.
13
]4
15
16
17
]8
19
20
21
22
23
24
25
I
2
3
4
5
Q You don't know what insurance company it was?
A No. It's been awhile, and we were separated.
Q All right. Let me start with some questions
about your education. You graduated from Central Dauphin
High School?
A Yes.
Q What year?
A 1975.
Q And did you have any schooling beyond high
school?
A Yes. I attended Harrisburg Area COlmnunity
College in 1976.
Q Okay.
HUGHES, ALBRIGHT, FOLTZ & NATALE
717-540-0220\717-393-5101
EXHIBIT B
-
EXHIBIT C
.
.'''';:.;r-~' :'::i~
..,'".::,\i.. .'BA'R'I"H' ':. "G'.R'''()'''SS:;~~c':i';:,." ,i;
:-,:~:>/.~~ '. ,.' ~. ", "~;:,i,/: :',' "
I ",,:.'1""EN""'G"'A'G"E"'M"'E'N"T""" ',;'. ',,.. .,......
':-.,;."::. ',.......'" -," ...."',...,.'.'.::,':-,...;:-:,'.:'.:.;..
....... -"'" "'. -".. ."',', ,
, ~. :', ;" :
Mec:hamcsburg'Ar e aHlgl1
Schooland'attended'Harris~ '
>~HE~fGo,~.~iiGii!"i
;,:';,pt,;c"''Ii,iJ:,
.. .isH
'to.,~""'s.;t
.
.
.
L-...
TUESDAY, AUGUST 19,2003 a,7
I David M. Gross
David M. Gross, 45, of Cmnp
Bill, died Sunday, August 17,
2003 in the Holy Spirit Hospital,
Camp Hill. ..,
Born in Harrisburg, h~ gra1J..
uated from Central Dauphin
High School,
ClaSs of 1975;
. He ha.d vari.
ous sales posi-
tions in the
Harrisburg
area, Was a lo-
cal Model, and
a former em-
ploy~e of the
Hatri s burg GROSS
State Hospital. Be was kind.
sensitive and loved all people~:
/. He Was oS member of Si. Cath- I
erine Laboure Catholic Church,
. St. Joseph Catholic Church,
Mechanicsburg, Knights of C0-
lumbus fu"'1d Cosmopolitan In-
ternational.
Surviving are his :mother, Ra-
mona B. Zelinski Gross of
Harrisb1ll'g; ~ brother; Anthony
Gross ofPhlladelphia; a sister,
Mary Ellen Brouse of
Marysville; a brother, Brian
Gros..~ of Dillsburg; nieces, Dan-
ielle Brouse. Celeste and Do.tni. .
nque Gross; a nephew, Joel
Gross; his fiancee' ,Elizabeth
Barth, with whom he lived; nu-
merous aunts, uncles and cous-
ms.
Mass of Christian Burial will
be c~lebrated at 11 a.m. Thurs-
day, at St. Catherine LaboWe
Catholic Church,400Q Derry
Street, Harrisburg. Burial' iVJll
be in Holy Cross Cemetery.
Viewing will be held from j:g
p.m. Wednesday, at the Ne.jll
Funeral Home, 3501 Der.l:Y
Street, Harrisburg. Recitat~Q,Il
of the Rosary will .be at 8,:90
p.m. Wednesday at the funel:,.aJ.
home. .
Memorial contributions may
be made to the Disabled Ameri.
can Veterans, 4219 Trind~e
Road, Camp Hill, PA 17011. '.'.
\\rww.neillfh.com . :~:
www.pennlive.com/obits .::::
EXHIBIT D
.
Father Wallace E. Sawdy
115 North Street Apartment 109
Harrisburg, PA 17101
Phone: (717) 238-5380
~.
August 25, 2003
[''1y dear Hrs. Gross,
!
I was deeply moved by the telephone call I received from
David's fiance" inf~rming me of David I s death. I knew that
David was in great pain after his accident but never thought
that it was life-threatening. And,. comingso.soonafter your
husband's death has; brought you a double'meastlreof sorrow.
I returned home fronthe-rehab hospitalyesterciay.This morn-
ing I offered my Mass for David and his f~the~~
As I recall her telephone conversation, David's fiance
identified herself as Elizabeth Vars. Was she a relative of
Elizabeth "Sarge" Vars who died about twenty years ago?
I knew her well from her many trips to Holy Spirit Hospital
E;rhen I \Vas Chaplain.! there. I attended her funeral service at
the Neumeyer Funeral Horne at Second and Calder Streets.
Again, rnt deep~st sympathy. to.you and Elizabeth. May God
comfort you in your sorrow!
In His love,
ft,gJJ
"
.....
EXHIBIT E
--
.~'r:4j,,~ is ru c(Tt:d~/ r.h;:.n [he inforrn.t:.1)[:rl.:' givelJ is cGrr\.'~cTjy
L~ocal .Registrar. '"fhe ongIna.I cerci..e ',MLll he f01"'vvarded f"C, rJ-L
frum Cl.l! u;'. Cej'::1fi':~'::" uf Geraci; duly filed v~irh en,"' dO,
'..,'ca~:~-: \'~ila! [':',:;:'c.o. _,~ C)Hlc(:' f~:--;i pr:~::rl'".l~-i"rl~~nt Flii.n1:~'
WARNING: It is illegal W f.IUprjcatfc this GOD'}! by prlotnstat D" photogreph:. (~.
r-.
[,,:
"'., ..-., (" ,,I'i
'l"~ / l ~
,~", ~ ,,'...l_
-., l'~~
~", f r."'"
...../ t \......
-----~l
/ ,
/:" -"/1,/ /" ./
!..~"f,l .,"'1/(1 ';,:~::::~.c:'" /'
___m__~#-..)h-r.~~-~_._,.,___
J ! : /i.. ,7-l.~
.'~/}C~J' .l-:.t:p",tSrr':lf /"
l, ,. ~
/
Fee for rhi:; certificate, $2.00
1-)"
,._ r;.-t t~C
Hl05 143 Rev. 2/8'7
10'''8 ..,rw 01 WOnt ClC'" DIIII119mOll
. n, :s'A':;S"E:';~M~'~::~ f1b. LiGHritlG-
DECEDENT'S MAILING ADDRESS (Sties\. Cllynown. Slalt!, Zip COde) DECEDENT'S
GOl6 !?1I1L1-AR.D 'Rl>. ~~~~DAfh"CE
Hi, Cltrn P HiL.I..- I f'f1. 17DII ~~U~lt~~~Ir;:rJ~lfns
FATHER'S NAME tFl(51. MiddlE!, Las!)
18. If/llTHoNV :T. GRDSS.
INFOHMANT'S NAME rTypeiPnfll'l
20. Et..iZAt3E:rH m.
METHOD OF DISPOSITION
Burial CE Clemallon O:iflmoval from Slate 0
Other (Specl'\,.1
COMMONWEALTH OF PENNSYLVANIA' DEPARTMENT OF HEALTH' VITAL RECORDS
CERTIFICATE OF DEATH
STATE FILE NtJMSER
r,. PElP RINT
IN
r .; RMANENT
~L.ACK INK
ur y~.
s. 7.:/
BIRTHPLACE ICny and
Stalo or ~OIelgn Country)
H"'~R.;$e."A(i, Pfl.
7.
=~lO
~~~y~ncaf1 inCltan, a~Dcr., While, et'l
(.V H i'Tf.
~
COUNTY OF DEATH
Bb. Ct.fr>'l6<:RLANb
DECEDENrs USUAL OCCUPATION
eo.
17e. Stale
'fA.
G./rnREA~lAN])
MARITAL STATUS - Maniod,
Nevor Married, Widowed,
DiVorced (Spocrty)
" 'DjVOR.~()>
17t. ~ Yes, doceoenllived in 1:.
SURVIVING SPOUSE
(lfwl'~.QIV1l m8idfln name)
17b. County
Did
detedonl
live In a
lowns~lip"
17 d. 0 ~~jl~e~~l~~~\j~~i~!;d or
lwl' !
c11yJboro
I
PA !( 0'
/711 I
17",
24
ZJa.
TIME OF DEATH
'1';' .5.d
TM
23b. 23<:.
WAS CASE REFERRED TO A MEDICAL EXAMINER ICORONEWI
2G. y" 0 No fiSl
27. PART I; En"r au dl....u.IIlJ.mu or campllUlIon. "'hI':" Uu..lllh. duth. O~ I'Dt .,It., Ih. mOU8 01 OJ/lng, "uc~..((t,..c or rUlIlritory .nuL .hock 01 he'l1 I.Hur. . ApprO,lUmille
Lilt only 0". u...u on uch Irn.. : intorval between
: onset and dealh
PART II: DIner slgniftcant condilions contributing La death, but
not resulting In the undeny;ng cause gNnt1 in PART l.
11\ './ ~I'; ~p~ cf;;{' r.vdA.A /'
iJ
DUE TO lOR AS A CON6EOU!:NCE OF):
DUE TO lOR A.S A CONSEOUENCE OF)
REGISTRAR'S SIGNATURE AND NUMBER
W~r-..tJ
34.
MANNER OF Oi:ATH
Natural
IE
o
o
Homidde
DATE OF INJURY
IMOl'1l/I, aey. 'I'e~lI)
TIME Of INJURY
INJURy AT WORI<:7 OESCRIBE HOW INJURY OCCURRED,
Yo.o
NoD
SUIcide
Pt!nding Investigation
Coulu nol be determined
o
o -D~D
)Oa. JOb. M. 30e.
o PLACE OF INJURY - At home. /arm. slreet, laCIDr)'. ameli
Dl.1dlJtnll, Ill';. {S~eclfyl
JOII.
ACdden!
2a.. 2!1b.
CERTIFIER (Check only onG)
.~ ~~,;~FJ~~IGOr~; t.I;~~~'~~~SdC~:~hc~g~~ri~J~U~: l~ ~:~~ ~~:~(:)~~arJ~X~I;~il~. h:l~r~~~~~~:~.~ .~,~~.l~ ~~~ .~~.~~:~~.~ .i.l~.~?~.)...
29.
'PRONOUNCING AND CERTIFYING PHYSICIAN (PhYliician both pronouncing oelillh anu cenitying to caullo of death)
TD the bosl 01 my knowhHlg8. death occ:urrat1l11llho limtl, dale, and PlolClI, and due 10 lhe caLl.us(J) anu '"a"ner at staled,
.MEDICAL EXAMINER/CORONER
On tl,. bini, of "Il.amlnolllon andlor Invosllgallon. In my opInion, dllalh occurtod ..llhl Ume, dllto. and place. and dUG to fhll cauus{s) ."d
manner at slaled ......................
31..
II
I
~ .. . .
'.-
I!
LITVIN, BLUMBERG, MA TUSOW & YOUNG
By: Donald E. Matusow, Esquire/Fredric S. Eisenberg, Esquire
Identification Nos.: 13170/58243
The Widener Building, 18th Floor
1339 Chestnut Street Attorneys for Respondents
Philadelphia, P A 19107
(215) 557-3300
REGISTER OF WILLS
IN RE: ESTATE OF DAVID GROSS
CUMBERLAND COUNTY
PENNSYL VANIA
NO.: 21-03-1065
CERTIFICATE OF SERVICE
I, Fredric S. Eisenberg, attorney for respondents, hereby certify that I have served a tme
and correct copy of the foregoing Answer in Opposition to the Petition of Elizabeth M. Barth to
Revoke Letters of Administration and Requesting that Letters of Administratoin be issued to
Elizabeth M. Barth via first-class mail, postage prepaid on the 23rd day of April, 2004 to the
following:
James G. Nealon, III, Esquire
Nealon & Gover, P.c.
2411 North Front Street
Harrisburg, P A 17110
Christopher J. Marzzacco, Esquire
Wiley, Lenox, Colgan & Marzzacco, P.C.
130 W. Church Street
Suite 100
Dillsburg, P A 17019
Fredric S. Eisenberg, Esqui
Attorney for Respondent
PETITION FoARANT OF LETTERS OF AIINISTRATION
Estate of
also known as
fJ I/- \J (cl ~ ."-u <;; )
No.
To:
~ \ - C ~ - ) C, tS>)
Deceased.
Social Security No. I ~ 9 - ~<) - (2r'l ir
Register of lillS fo] th<1 )
County of <.J \.-..........~( 01 ~"c~ in the
Commonwealth of Pennsylvania
The petition of the undersigned respectfully represents that:
Your petitio~r(s), who is/are 18 years of age or older, appl (~ ')
b,L<l. /'J
(d.b.n.; pendente lite; durante absentia; durante minoritate)
the above decedent.
Decendent was d?micile~ at. death ~n tL~ 6~~(CJ, ~ 40},mty>>pennSYlV~i"\\jif~
h ('5 last famIly or pnnclpal reSidence at ,oIlS ,.,,;Y <<~ I /,. ,~d &-. L ~ ,7 I \ f-J. ."
(list street, number and municipality)
/1 -f' .;;> C)D :)
Hv~ ,,~. /-:; , 't9-__,
for letters of administration
on the estate of
Decenden7t then If l). years of age, d,ied
at /f6 I) ~ (.J > .~,+ /'<; "'j'Pi -f.", /
(' ,
Decendent at death owned property with estimated values as folllows:
(If domiciled in Pa.) All personal property $
(If not domiciled in Pa.) Personal property in Pennsylvania $
(If not domiciled in Pa.) Personal property in County $
Value of real estate in Pennsylvania $
situated as follows:
Petitioner_ after a proper search ha_ ascertained that decedent left no will and was survived by
the following spouse (if any) and heirs:
".f. 'f J~ a~ 1'9 .."5.f,,,
RelatJ.m1ship
L ..;-::..e
..y, ^'O~ (.4.,;
~; jJ r l ...4_
OJ'J..; )
THEREFORE, petitioner(s) respectfully request(s) the grant of letters of administnttion III the
appropriate form to the undersigned.
~
C/O
'ir
u
C
<l.I
~3
<l.I ....
~<l.I
C
-00
1::.';::
roo;:
~<l.I
~o..
<l.I<+-
:;0
Ol
c
co
Vi
E(.("", /(L,Lt-d!.' /:.:2. /: /cr-L
) ~
/
.f2. 7'"1 d!/,,/ ~t(/c&: (, A-~
ILVZ/ /(l A..t s z( 1.. ,)/);. / /.3 C/S
5, 6
OA T' OF PERSONAL REPRESENtTlVE
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF ~u.'C'r\~_\'C\rc\
} ss
The petitioner(s) above-named swear(s) or affirm(s) that the
statements in the foregoing petition are true and correct to the best
of the knowledge and belief of petitioner(s) and that as personal
representative(s) of the above decedent petitioner(s) will well and
truly administer the estate according to law.
Sworn to. or affirmc:d and subscribed J
before Ale this. . \<1 t:~. day of
'-'~ ~DC;Y W
J:1vo("'c\, ).. m~.\\.cv~j
.~. r 6' .G...L""^ Registe-,' l
' f~\..b..!
c..:..../ / // /) ~ / ~.
"--L//S::b~ /6d0(~
.
'"'""
'"
'-'
Q)
....
;:l
.....
ell
l::
OIl
i:i5
No. ~I-O~-Itl()~
Estate of
~o~
~-o< <"
~~ .}
, Deceased
GRANT OF LETTERS OF ADMINISTRATION
AND NOW ~~ c::2 0 ..:f9-d,W+, in consideration of the petition on
the reverse side hereof, satIsfa 0 pr,oof having bee~ented before me,
IT IS DECREED that L ~ ~~
is/are entitled to Letters of Administra lOn, and in accord with such finding, Letters of Administration
are hereby granted to ~ 'hr;a-\c, ~
in the estate of~O-. C~SS
b~(~\.--.........
$~5. 00
$ C;. 00
$
$
TOTAL _ $"(~.OO
Filed.. Y.~~C.~ .C"i.... A.D. 19_
FEES
Letters of Administration
Short Certificates( )..........
Renunciation ................
~~""k.~u~~ "'~~~
",g;",,~ ~~~I
o-j/ / AI / - U .f-')
. y''+vV2..e? U / V -e <.0... ,~-'V tU i(,;; '-(.J /
A TTORNEYS1P:-Ct. LD. No.~_ .
d-cj 1/ IG 0~yu-r ~~f--
/ ) 1DDRESS
~r\ )6v,-~ {J4 } ?((~\
PHoNE
J-"?J- 99o~
.
.
IN RE THE ESTATE OF DAVID GROSS
: REGISTER OF WILLS
:CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 21-03-1065
PETITION OF ELIZABETH M. BARTH TO REVOKE
LETTERS OF ADMINISTRATION AND
REQUESTING THAT LETTERS OF ADMINISTRATION
BE ISSUED TO ELIZABETH M. BARTH
1.
On August 17, 2003, Decedent, David M. Gross, died at the Holy Spirit Hospital, Camp
Hill, Cumberland County, Pennsylvania.
2.
At the time of his death, David M. Gross was a resident of Cumberland County.
3.
On or about December 26, 2003, Ramona B. Gross filed a Petition for Grant of Letters of
Administration. The Petitioner alleged that David M. Gross was not survived by a spouse and that
Ramona Gross was entitled to have Letters of Administration issued to her as the surviving mother.
4.
On December 26, 2003, the Register of Wills of Cumberland County issued Letters of
Administration to Ramona B. Gross.
5.
On February 4, 2004, Ramona B. Gross died at the Community General Osteopathic
Hospital, Harrisburg, Dauphin County, Pennsylvania.
6.
As of the date of his death, David M. Gross was married to Elizabeth M. Barth by virtue
of a Common Law Marriage.
7.
On about April 8, 2002, David M. Gross and Elizabeth M. Barth executed an Affidavit of
Common Law Marriage. A true and correct copy of the Affidavit hereto and incorporated herein by
reference as Exhibit A.
1
l\
.
.
8.
Elizabeth M. Barth is of a class of higher of priority entitled to the issued Letters of
Administration.
9.
The Letters of Administration were improperly issued to Ramona Gross.
10.
Ramona Gross is unable to continue to administer the Estate due to her death.
WHEREFORE, Petitioner, Elizabeth M. Barth, urges the Register of Wills to revoke the
Letters of Administration previously issued to Ramona B. Gross and to issue Letters of Administration
to Elizabeth M. Barth.
Respectfully submitted,
NEALON & GOVER, P.c.
By:
~. ~ .// //01'7371
~#t>~6~-
James G. Nealon, II, Esquire
Attorney I.D. No. 46457
2411 North Front Street
Harrisburg, P A 17110
(717) 232-9900
Dated: 04/02104
2
EXHIBIT A
!~
r A r 0 VI:' n t r IJ H I:' 0 I t h r 0 r I:' P Ion
AFFIDAVIT OF COMMON LAW MARRIAGE
H E A L T HAM E R l'A
HEALTHAsSURANCE
We, the undersigned, being of lawful age, attest to the following facts:
1. We have lived together continuously as husband and wife from ~/~/Jqq~
to the present time. During this period we have professed to be husband and
wife and we have held ourselves out to the community as being married.
2. That we are 18 years of age or older or, if between the ages of 16 and 18, have
obtained appropriate parental or guardian consent.
3. There is no legal impediment to our marriage, including, but not limited to, a
prior marriage of either party that has not been legally terminated by death or
divorce.
4. We intend to be legally bound as husband and wife and in full recognition of the
rights, duties, obligations associated therewith. We have evidenced by words
in the present tense, uttered with a view of purpose of establishing the relation-
ship of husband and wife.
5. The following children have been born to us and we hereby acknowledge such
children to be our lawful children.
NO
['1,'ztLbe+-L M. furi-l
Name of Employee
1~ a.-vr'd NL. (Jr()SS
Name of Spouse
tliw~ fX-.
Sigd~~
Date
Date
Subscribed and sworn before me this
~~xf~
-'I-j-2.
?~
If-g-2
day of ~
. I 20 () :2
My commission expires:
(~ -//-Oy
Date '
NOTARIAL SEAL
Judy S. Grdjan, Notary Public
Lemoyne Borough, County of Cumberland
My Commission F.xpires Jun. 7, 2004
---.o'J:_<w.,.'",,--.t
2575 Interslale DriH~, Harrisburg. PA 17110
800-788-6445 . 717-540-4260 . w\Nw.hcctllhamenca.cvl)'.com
~ . l ..
.
.
VERIFICATION
I, ELIZABETH M. BARTH, verify that the statements made in the foregoing
PETITION OF ELIZABETH M. BARTH TO REVOKE REQUESTING THAT LETTERS
OF ADMINISTRATION BE ISSUED TO ELIZABETH M. BARTH are true and correct. I
understand that false statements herein are made subject to the penalties of 18
Pa.C.S.A. ~4904 relating to unsworn falsification to authorities.
Date:
/ )
-7;"/<5- .,' ' i
I /
J
,,/) ',-. /' ) /
c. ,.~.t{.6< 71~ 11', /-:-) I{J.]'!L
ELlZAEf~TH M. BARTH
WEL aN, WEINBERG & REIS CO..P.A.
ATTOR'IEYS AT L\ w
323 W. Lakeside Avenue, Suite 200
Cleveland. Ohio 44113-1099
21 6.6S5.1 000
\I "'\I. \I eltllla n.l'O III
CI'iCl'i:'olATI,OH
51:, 723 2200
COLlJI\IBl!S,OH
614.2287272
DETROIT, :\11
24k162.6100
\Hll!:\'T HOLL Y, :\J
6()l) 914.0437
PHILADELPHIA,PA
2! '5')') 1.'00
PITTSBlRCH,PA
412.4347955
h:,oruarv 2-1. 2()()4
CumoerlamL Register Of Wills
One ( 'uurtlwuse Square
Carlisle. P.\ ()l'OI~
Re FstatL' of David ivl Cirnss
Case .'.n. 21-03-1065
Om Client: Bank of America. \1.,\.
Account No. 4319041022443081
Balance Due: $938.53
Om Ftle No. 3341084
Dc'ar ('Ink uf Comls:
ThiS bw firm reprL'senh Bank of America. N.A. in connection with its claim which we wish to file on our client's behalf into
the estate 01 I )avld M (lm;;s. deceased rnclosed is om check III the amount of $5.00 which we understand is the filing fee for
thl' claim
() lIr c lien t 's lid 1111 IS hdSc'd 11J'\!I) I t',k'~l)llril I IlImon -I.; I l)U-I I U224:UUf\ I 1I1 the amount 0 f $9 J f\ 53 As of the date of this letter,
thiS is thc' amount duc'. 111,:luckd 1\lth tillS letter is the claim form which \Ie wish to present to this court and which we are
forwarding to the attorney.lI1c! or fidUCiary uf this t:'state
It II uuld he apprt:'C1ated II all correspondence and disbursements With respect to this matter be forwarded to our office and to
tht:' attention of the underSigned. Addllionally. it would be appreciated if any notices of any hearings also be forwarded to the
undersigned. Thank you for your cooperation in this matter.
~:I1~~
Veda Flowers
Legal Assistant
(216) 685-1171
....."',-..
... ..4 \, ~
.... .
::.:.: ti'
o
J:>,.
Vf.Fiar
Ene!usures
IT Ramuna B t iross
S (ierald Lltlll1
2":
",;
"M.'."I
-'
:" j
r....j
a.
3
.
~
,,--
.
'v\'v'vRii03_\-+ I OX4
10R\1 93-0.C. DI\'ISI0l\:
IN THE COURT OF COMMON PLEAS
of
CUMBERLAND COUNTY, PENNSYL VANIA
ORPHANS' COURT DIVISION
IN RE: ESTATE
OF
No.21-03-1065 of
Va\JQ.M (jross~______
Deceased
(joods and servIces purchased on visa
Bank of America :\ .A_ Account No_ 431904102244308 I
... ''\ -,!"~'
I'.
.....
d
L'"
:TJ
fJ)
:-)
",,\
CLAIM
To thc Clerk of OqJhans' Court Division:
0'\
Illdn and mclke pmpcr clltry In your official records of the claim of Bank of America N.A_
l'_~~~ltmalJ~Yvell1ber,=" & Rels Co, L.P.^-. 323 West Lakeside Avenue. Suite 11-200, Cleveland, Ohio 44113-1099
(Claimant)
111 the amount of $93~.5_1
against the estate of the above named decedent.
I IllS clcul11 IS liled under SectIOn 3532 (b) (2) of the Probate, Estates and Fiduciaries Code.
rhe Semi decedent. who resided at 601 Mallard Rd.
CilnmJiILl.. P!\J]QJJ___
( Address)
. died on N/A
20
Written notice oftl1JS claim was given to Ramona B. Gross, Fiduciary 5007 Virginia Ave Harrisburg, PA 17109
S ()..L'lidltUL\ lll.o.l:C81lliLf.J \3 Chestnut Street PhIladelphia. P A 19107 on
- - . I P""""I "p""o""" .f ""~ :~:ltJ ~ )~ ou-6-J~
( Claimant)
Veda Flowers. Agent for the Claimant
c/o Weltman. Weinberg, & RelS Co_. L.P.A.
323 W_ Lakeside Ave_. Suite200
Cleveland. OhIO 44113
(Claimant's Address)
.
.#1' -
.
WWR # 3341084
STATEMENT OF ACCOUNTS
FOR:
Bank of America, N.A.
DECEDENT'S NAME: David M Gross
ADDRESS: 601 Mallard Rd
CSZ: Camp Hill, FA 17011
SSN: 189-52-7272
000: 11/11/11
ACCOUNT #: 4319041022443081
BALANCE DUE: $938.53
EXHIBIT A
i~/05/03 FRI 11:34 FAX 92552749
REGISTER OF WILLS
[lZ] 002
.1
.
l
Oath of Personal Representative
Commonwealth of Pennsylvania
County of Dauphin
The Petitioner(s} above-named swear(s) and affirm(s) that the statements in the foregoing Petition are true and
correct to the best of the knowledge and belief of Petitioner(s) and that, as personal representative(s) of the Decedent,
Petitioner(s) will well and truly administer the estate according to law.
~ 11(L'vrt~~
I
Sworn to and affirmed and subscribed
13 - /~-7
--
before me this i (f:t...h...- day of
o fU'- ~W~:L-____ 20.Q3
~rlJt1Q f0 t:DD.~ G
Estate of
DAVID GROSS
DECREE OF REGISTER
No.
also known as
Deceased
21-2003-1065
Social Security No: 189-52-7272
Date of Death: ~ugust 17, 2003
AND NOW, DecemhPr ?fit-h , 20~, in consideration of the Petition
.
on the reverse side hereon, satisfactory proof having been presented before me,
IT IS DECREED that Letters 0 Testamentary CZ of Administration LitigaTion Pllrpnc:::PC::: only
are hereby granted to
lC'.l.H.; d.b.Il_r..r.; pendenre hie; dUHmll! abiienlin; d\JHmt~ miooritllW'
Ranona B.GroRR
in the above estate and that the instrument(s), if any, dated
described in the Petition be admitted to probate and filed of record as the last Will of Decedent.
FEES
9.00
Letters........................... $ 18.00
Short Certificate (5)..........
Renunciation................. .
Affidavit ( ).................
Extra Pages ( )............
Cad i c i I. . . .. ... .. . . . . . . .. . .. . .. ..
JCP Fee....... ............ .....
Inventory & Tax Forms...
Othp~' 0'~dJ\""""""
TOTAL............... .
$
$
$
$
$
$ 10.00
$
$
1- is' 00
S.Gerald Litvin
Attorney:
1.0. No:
$ 37.00
Address: The Weidner Bldg. 18th Floor
t D h' f 1339 Chestnut Street
a aup ill County or oath PhiladRlphi Fl, PA 1 ql 07
(215) 557-3349
DATE FILED: December 26th, 2003
Telephone:
RW-7a MaileJ letters on 12/26/2003
:l
r
FRI 11:34 FAX 92552749
Register t W;IIS of Dauphin County. pe~SYIVania
PETITION FOR GRANT OF LETTERS
C~~d~
,-
REGISTER OF WILLS
1:i/05/03
Estate of
~-~)
No.
J../-() 3.-10&.:.)
also known as
, Deceased
: <; (7-" 71 7 J-.
Social Security No( /) 7 .i:::z. .
Pelition~I(>>). who is/aul' 1 B ye,lIrlil 01 age Of older. appJvlies) 1m:
<COMPLETE "An OR "B" BELOW:)
r:I
A. Probate and Grant of Letters and aver that Petitioner(s) is/are the execut_ named in the Last Will of the
Decedent, dated and codicil(s} dated
Stall!! relevant eilcUlT\.&tanC8'B, t.g., Illlnuncimion, dealh of executor, etc.
Except as follows, Decedent did not marry, was not divorced, and did not have e child born or adopted after execution of the documents offered
for probate; was not the victim of a killing and was never adjudicated incompetent:
Q
B. Grant of Letters of Administration
Ic.t.o,. d.b_n.c.t.o.: pendenle lite; d\Juuue Ablilentia; UUlmlle ,niflQ,iHne)
Petitioner(sl after a proper search has/have ascertained that Decedent left no Will and was survived by the following spouse
(if any) and heirs:
Residence
03
(1~-l
I 1 jL1JJ
~
I ALL AS S:) Attec aa Itional shaets I necessary.
L~.r.e-:z-4~ 1f'
Decedent was d~miciled at d~ath}~ . '.- u~~. ,_ Cou'"ntY:-Pennsylvania, with his/her last family or principal
residence at V C I 11 )-r l~ ff..:..~ .,- 6./ / / I
I I _ , _ _ _
II..' '''.e'. "umb., .". mU">Qp I ~ ) /~ 1/- tJh~'--r- ~>; 'hP
Decedent. then ~-I)' years of age, died f) ..-I-'V'..;1' A,(A-Y /,7 .2011.3, at fJ-1,~ .><::2 - .c ..::..~-=--=-_
'J 7 I oci'lllonl
Decedent at death owned property with estimated values as follows:
(If domiciled in PAl All personal property _... _ . . . . . . . . . . . . . . . . . . . . . . . . . $
(If not domiciled in PA) Personal property in Pennsylvania. . . . . . . . . . . . . . . . . . . . . . $
(If not domiciled irl PAl Personal property in County. . . . . . . . . . . . . . . . . . . . . . . . . . $
Value of real estate in Pennsylvania ............................................ $
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $
Real Estate situated as follows:
Wherefore, Petitioner(s) respectfully requestls) the probate of the last Will and Codicil(s) presented with this Petition and the grant of letters in the
appropriate form to the undersigned:
Signature
{\NItJ't ..-,.v<;~
r3
~
Typed or printed name and residence
,."
/.f {::.
L j7/()!
DM_7 /7 -is 5 - {;
1-
! 11(1')\':/1') In \
This IS to certifv thai the I!1fl)rrnari(Jn!~ re given is conl'l~ti "',"1., '['JII, ," I: ','" ...,,'
Local Registrar. The original cerrificdt I be fC>r\vardcd II' ,he " I,' \ Ii "!~'c'":i;'.'
' ~ARNING' It is lIegal to duplicate this copy by photostat 0' pho!owap,' )
Ie! P" chi, !md'we. "O(),i~Z~C1iiDfp{';:.;:<, ~t1 ~~...
.l=1~" " 'J!~,'F~\\ ?: I
." _ ' _'i
I::::'w, a'" A::"
\'\ :~{~ "'~,, '-- ;' -/:
\~ <j:C ,..~~,\':'
'.~~ .1..f)" ", ~ ~v \\~/
C~_~ l#EN"I ~\+\."",
"-!"-::'<:-:!..'::.!<'~::t~t_r.:.,-;.n.ll"
() r.:
,....
i~ '; i; t
..J '-.1
p
'"
/1.
V ?I.
,/ L
/~ ~~7
'-...,t '",'
No.
111l;:J 1-13 r~oo.' ;:..-13 I
COMMONWEALTH OF PENNSYLVANIA' DEPARTMENT OF HEALTH' VITAL RECORDS
~t,PRINT
IN
i.MANt:Nl
A(I\ iN'"
CERTIFICATE OF DEATH
~TATE FilE NUMijER
SOCIAL SECURITY NUMBER
3. I 8'1 - 5). - 7:Z 7 ;L
'-/' L 'y.~
, J
BIRTHPLACE (Cily and
Stale or FOIeign Counl/y)
HARl'lise....Jlli. PA.
1
RlliK)lll>C. 0 ~~:~tt) 0
RACE - Amencanlndian, Black, WhIte, t:(
(Spt.:~if).)
WHiTE
10.
C:OUN ry OF OEA TH
'" CI.4IY1(3C::RLAN D
MARITAL STATUS. Mdrned, SURVIVING SPOUSE
Never Married. Widowed, \~ ""II.. g.". maJ<Jan n"m.}
Divorced (Specify)
14 'D i v'ORet:J>
11e. ill Ye,. decedenll"ed In i:, PC:""5801<0
'.p
Clt'y/bofO
PA. /101/
/7/1 I
/7",
:It::m~ 24-26 ml;)( be ;::01J\~le!ed :'f
pt'::f~(.)n ...tlO l"lonOl../l>':t;) <.Ie-din
23a,
TIME OF DEATH
cr'Q
23b 2Jc
WAS CASE REFERRED TO A MEDICAL EXAMINER !CORONER?
26. Yt:s 0 No ~
24
27, PART I: fnlu Ill. ",......, ''',''f,'' u, c,;,mpl"IUu". "'''1'" (';;I.....d Ih. d..Ul
l,l; ",I,', "". ~~"" "" ...~h I,,,.
.,dille Of '.'1''' ''''1 l(f.,t. .huc. ", h.." '...j",. : A~pruJ(irn..te
: u\lerVdl b~rv.tlen
I onset drld dth:llh
/:
PART II: Other "igolficilnl coc,dilJQ(ls contnbuting 10 death, bul
not resulting in the under1;ing cause 9i..-en in PART I
0,',Jk,"J ~e,"'(~(~dA.J/
I:
DUE TO (OR AS A CONSEQUENCE OF)
OUE TO (OR AS A CONSEQUENCE OF)
WERt AUTOPSY FINDINGS
AVAILAbU:. PHIOR TO
COMPLE TION OF CAUSE
GF DEA 1,-1';
MANNER OF OEA Hi
OA rE OF INJUHY
iMvr)th, 0.." Ylla'l
riME OF INJUHf
INJURY AT WOFtK'I DESCRIBE HOW iNJURY QCCURRED
(<::) D tiu{(J
'" 0 " 0
Natural ~
ACLiOenl 0
SUlcloe 0
2.
HomiCide
o
o
D ~~CE OF INJUR'(
t...."lcJon.... IIt~ : Sj.JII~,ffJ
30,
30b
M
Ye, 0 No 0
30e
Pending In\le~119at.on
CoulO nul be deli;!rlOlneO
At tlome laml, s:red, ladory, 0Hice
34
28b
~EkT.F'ER ICh"u" ",-.I, ,-w,e)
"\ ~ ~t:~F bY~~tGor~~11~~~~",~~j, sdC~~~h C~~~~I~~J~U~: t~ s,eltd~~~~:~(:r~~JI~~~~';~a~\stl:t~t~d~.10_Ufl,:t.:.~ _Jcaltl dr,a c;0rllplcted rlelTI '1 j!
"PHOt-lQUNCING AND CERTIFYING PHYSICIAN (Ph,~ICldn buth pronounCln9 cleath .:;lld coortltylny tu cause 'll ,-,"dtll)
T v H." 0,,:;,1 01 lnjl kl1owl'Hl~", uvalh OCCUH"'U al the tUTle, did"" oIInu plollce, afld dulol 10 thtil cau:;,til:>>($) amJ m.IlfIU, dll lltaluu.
"Mt.OICAL !:::XAMINI::H1CQH.l)NEH
U" Ill" 0.$101 vi ...."111111.110'1 ,,"ulo, 11l""..liij.II0l1, in Uly opinion, uu",lh Oo.;CUHtHJ at tlUt lim.., ual", ",nO plaUt, ,uuJ due 10 UH;. L"u::li"~l"'l afld
Ill.or\l\"r..tlist<llu,j
31.
RtGIS THAH':j ::>IGNA TURE AND NUMBt::R
1J~)~__~1J
/~ ~",
pOST& \\
SCHELL,,(
ATTOHNf:-f:-; AT LA\....
Paula J. McDermott
Direct Dial: 717-612-6012
Fax Number: 717-731-1985
pmcdermott@postschell.com
File No.: 1752/120940
November 5, 2004
VIA HAND DELIVERY
Orphans' Court Division
c/o Register of Wills
Cumberland County Courthouse
One Courthouse Square
Carlisle, P A 17013-3387
PENNSYLVANIA
RE: In Re: Estate of David M. Gross
PHilADELPHIA Cumberland County No. 2103-1065
PITTSBURGH
Dear Sir or Madam:
HARRISBURG
LANCASTER
Enclosed for filing please find the original and two copies of Petitioner, Brian J. Gross'
Memorandum of Law in Support of Motion in Limine for Sanctions for Failure to Respond to
Discovery Requests. Would you please time-stamp the extra copy of this document and
return it to our office. By copy of this correspondence, the same has been served on
Respondent's counsel and The Honorable George E. Hoffer.
ALLENTOWN
NEW JERSEY
PRINCETON
If you have any questions or comments, please feel free to contact me.
Very truly yours,
~."""\ .r .,.,,~~. "~l
\) \.. ( __ \ \ '- -~ \ 1...' rh.' \,~
~ (" ..-..
Paula J. McDermott
PJM:djs
Enclosures
Cc: James Nealon, Esquire (w/enclosure)
The Honorable George E. Hoffer (w/enclosure) (Via Hand Delivery)
240 GRANDVIEW AVENUE CAMP Hill, PA 17011 717.731.1970 WWW.POSTSCHEll.COM
A PENNSYLVANIA PROFESSIONAL CORPORATION