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HomeMy WebLinkAbout06-27-05 Part 2 . ~ . CERTIFICATE AND TRANSMITTAL OF RECORD PENNSYL VANIA RULE OF APPELLATE PROCEDURE 1931(C) To the Prothonotary of the appellate court to which the within matter has been appealed: THE UNDERSIGNED, Glenda Farner Strasbaugh of the Court of Common Pleas of Cumberland County, the said court being a court ofrecord, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by P A.R.A.P. 1925, the original papers and exhibits, if any, on file, the transcript of the proceedings, ifany, and the docket entries in the following matter: Estate of David M. Gross, 21-03-1065, Superior Court No. 818 MDA 2005 in compliance with Pa.R.A.P. 1931 (c). The documents comprising the record have been numbered from No.1 to No. 52 and Exhibits, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document. The date of which the record has been transmitted to the appellate court is June 27, 2005. ~~ X~C{ {j/w;6a:~ (Seal of Court) ReCORD FILED IN SUPERIOR COURT JUN Z 7 ,005 'Jpwts MlDDL& "'::46 P.M. . Appeal Docket Sheet Docket Number: 818 MDA 2005 Page 1 of 3 May 17, 2005 In Re: Estate of David M. Gross Appeal of: Elizabeth Barth, Appellant Initiating Document: Notice of Appeal Case Status: Active Case Processing Status: May 17, 2005 Journal Number: Case Category: Civil Consolidated Docket Nos.: Next Event Type: Receive Docketing Statement Next Event Type: Original Record Received 5/17/2005 ~ .perior Court of Pennsylvania Awaiting Original Record CaseType: Related Docket Nos.: ~ Estate/Probate/Wills/l ntestate SCHEDULED EVENT Next Event Due Date: May 31,2005 Next Event Due Date: June 27,2005 3023 r",..~' ~ 0''>,,,.;1 U" ,.. 2:46 P.M. Appeal Docket Sheet Docket Number: 818 MDA 2005 . Page 2 of 3 May 17, 2005 eperior Court of Pennsylvania .. Appellant Pro Se: IFP Status: Appellee Pro Se: IFP Status: Appellee Pro Se: IFP Status: COUNSEL INFORMATION Barth, Elizabeth Appoint Counsel Status: No Appellant Attorney Information: Attorney: Nealon III, James G. Bar No.: 46457 Law Firm: Nealon, Gover & Perry Address: 2411 N Front Street Harrisburg, PA 17110 Phone No.: (717)232-9900 Fax No.: (717)236-9119 Receive Mail: Yes E-Mail Address: Receive E-Mail: No Gross, Brian John Appoint Counsel Status: Appellee Attorney Information: Attorney: Kutz, James J. Bar No.: 21589 Law Firm: Address: Post & Schell, PC 240 Grandview Ave. Camp Hill, PA 17011 Phone No.: (717)731-1970 Fax No.: Receive Mail: Yes E-Mail Address: Receive E-Mail: No MaryEllen Brouse and Anthony Gross Appoint Counsel Status: Appellee Attorney Information: Attorney: Kopecky, Johnna J. Bar No.: 53147 Law Firm: Shagin & Anstine LLC Address: 300 N Second St 8th Floor Harrisburg, PA 17101 Phone No.: (717)221-1111 Fax No.: (717)221-1110 Receive Mail: Yes E-Mail Address:jkopecky@shaginanstine.com Receive E-Mail: No FEE INFORMATION Fee Date 5/13/05 5/17/2005 Fee Name Notice of Appeal Fee Amt 60.00 Paid Amount 60.00 Receipt Number 2005SPRMD000401 3023 2:46 P.M. Appeal Docket Sheet Docket Number: 818 MDA 2005 . .perior Court of Pennsylvania Page 3 of 3 May 17, 2005 t& TRIAL COURT/AGENCY INFORMATION Court Below: Cumberland County Court of Common Pleas County: Cumberland Date of Order Appealed From: April 13, 2005 Date Documents Received: May 17, 2005 Order Type: Order Entered Division: Orphans' Court Judicial District: 9 Date Notice of Appeal Filed: May 13, 2005 OTN: Judge: Bayley, Edgar B. Judge Lower Court Docket No.: 21-03-1065 ORIGINAL RECORD CONTENTS Original Record Item Filed Date Content/Description Date of Remand of Record: BRIEFS Filed Date Docket Entry/Document Name DOCKET ENTRIES Party Type Filed By May 17, 2005 Notice of Appeal Filed Appellant Barth, Elizabeth May 17, 2005 Docketing Statement Exited (Civil) Middle District Filing Office l.__:' .''''7,:\ r"',.,,) ......' , 5/17/2005 3023 ~ . . 16265106242005 ORC621 Case No 2003-01065 Case Name: Filed 12/26/03 12/26/03 3/01/04 4/16/04 4/19/04 4/20/04 4/26/04 4/28/04 5/11/04 5/14/04 5/17/04 5/21/04 5/27/04 6/15/04 7/06/04 Cumberland County - Orphans Court Page 1 GROSS DAVID M Age Docket Entries 1 PETITION FOR GRANT OF LETTERS OF ADMINISTRATION OATH OF PERSONAL REPRESENTATIVE DEATH CERTIFICATE 2 GRANT OF LETTERS OF ADMINISTRATION 3 CLAIM AGAINST ESTATE - BANK OF AMERICA STATEMENT OF ACCOUNTS 4 PETITION OF ELIZABETH M BARTH TO REVOKE LETTERS OF ADMINISTRATION AND REQUESTING THAT LETTERS OF ADMINISTRATION BE ISSUED TO ELIZABETH M BARTH FILED BY JAMES G NEALON, III ESQ. 5 PETITION FOR GRANT OF LETTERS OF ADMINISTRATION D.B.N. OATH OF PERSONAL REPRESENTATIVE 6 GRANT OF LETTERS OF ADMINISTRATION D.B.N. 7 ANSWER OF RESPONDENTS IN OPPOSITION TO THE PETITION OF ELIZABETH M. BARTH TO REVOKE LETTER OF ADMINISTRATION AND REQUESTING THAT LETTERS OF ADMINISTRATION BE ISSUED TO ELIZBETH M. BARTH 8 LETTER OF JAMES G. NEALON, III DATED 4/23/04. WITHDRAW OF PETITION TO REVOKE LETTERS OF ADMINISTRATION ISSUED TO RAMONA B. GROSS. 9 PETITION FOR REVOCATION OF LETTERS AND REMOVAL OF ADMINISTRATRIX 10 CITATION OF THE CLERK OF ORPHANS COURT TO JAMES NEALON ESQUIRE FOR ANSWER WITHIN TEN DAYS. GLENDA FARNER STRASBAUGH DATED 5/14/04 11 DEATH CERTIFICATE OF RAMONA GROSS FILED BY JAMES G NEALON, III. 12 ISSUED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22. 13 RESPONSE OF ELIZABETH BARTH TO PETITION FOR REVOCATION OF LETTERS AND REMOVAL OF ADMINISTRATRIX 14 PETITIONER BRIAN JOHN GROSS' REPLY WITH NEW MATTER TO NEW MATTER OF ELIZABETH BARTH. 15 VERIFICATION OF ELIZABETH M BARTH . . 16265106242005 ORC621 Case No 2003-01065 7/09/04 7/29/04 Cumberland County - Orphans Court Page 2 16 PETITION OF BRIAN J GROSS TO LIST MATTER FOR HEARING. FILED BY PAULA J MCDERMOTT ESQ 17 ORDER - SIGNED 7-27-04 IN RE: PETITION FOR HEARING IS GRANTED. A HEARING IS SCHEDULED FOR 10-04-04 @ 9:30 AM IN COURTROOM NO.3. BY THE COURT - GEORGE E HOFFER PJ 9/17/04 18 REV 1548 NOTICE INH TAX APPR JOINT ASSETS ACN 03137535 10/01/04 10/01/04 10/01/04 10/07/04 10/21/04 10/26/04 10/28/04 11/04/04 11/05/04 TAX DUE $83.23 19 BRIEF OF BRIAN JOHN GROSS IN SUPPORT OF PETITION FOR REVOCATION OF LETTERS AND REMOVAL OF ADMINISTRATRIX - PAULA MCDERMOTT ESQ 20 MOTION IN LIMINE FOR SANCTIONS FOR FAILURE TO RESPOND TO DISCOVERY REQUEST - PAULA MCDERMOTT ESQ 21 ORDER OF COURT 10/1/04 IN RE: HEARING DATE HEARING ORIGINALLY SET FOR 10/4/04 IS CONTINUED TO MONDAY 11/8/04 AT 9:30 AM IN COURTROOM #3 - BY THE COURT GEORGE E HOFFER PJ 22 ORDER OF COURT AND NOW THIS 6TH DAY OF OCTOBER 2004 UPON CONSIDERATION OF PETITIONERS MOTION FOR 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 WESLEY OLER, J. 23 RESPONSE OF ELIZABETH BARTH TO MOTION IN LIMINE FOR SANCTIONS FOR FAILURE TO RESPOND TO DISCOVERY REQUESTS. 24 REV 1548 NOTICE INH TAX APPR JOINT ASSETS PAID - 83.23 ACN - 03137535 RECEIPT - CD004570 POSTMARK DATED - 10/26/2004 BARTH ELIZABETH M 25 ORDER OF COURT DATED 10/28/04 IN RE: PETITIONERS MOTION IN LIMINE A DISCOVERY HEARING IS SCHEDULED FOR 12/8/04 AT 2:30 1M CTRM 1 _ BY THE COURT J WESLEY OLER JUDGE 26 ORDER OF COURT DATED 11/3/04 IN RE: PETITIONERS MOTION IN LIMINE FOR SANCTIONS FOR FAILURE TO RESPOND TO DISCOVERY REQUEST AND RESPONSE OF ELIZABETH BARTH TO MOTION IN LIMINE FOR SANCTIONS FOR FAILURE TO TO RESPOND SHALL BE TRANSFERRED TO GEORGE E HOFFER J AND HEARD ON 11/8/04 AT 9:30 AM IN CTRM 3. PREVIOUS HEARING IS CANCELLED. BY THE COURT J WESLEY OLER JR 27 MEMORANDUM OF LAW IN SUPPORT OF MOTION IN LIMINE FOR SANCTIONS FOR 16265106242005 ORC621 Case No 2003-01065 FAILURE TO RESPOND TO DISCOVERY REQUESTS 11/08/04 . . Cumberland County - Orphans Court Page 3 28 ORDER OF COURT DATED 11/08/04 THE MATTER HAS BEEN CALLED FOR A HEAR ING ON PETITIONER'S REQUEST THAT LTRS OF ADMINISTRATION IN THIS ESTATE ISSUED TO ELIZABETH BARTH BE REVOKED UNDER SECT 3181 OF PEF CODE, AND AFTER CONFERRING WITH COUNSEL AT A PRE-HEARING CONFERENCE AND THE COURT DETERMINING THAT THE REGISTER OF WILLS HAS THE EXCLUSIVE RIGHT OF ORIGINAL JURISDICTION IN THIS MATTER, AND THE COURT DECLINING JURISDICTION UNDER SECT 3182 OF PEF CODE, THE MATTER IS REFERRED TO THE REGISTER OF WILLS FOR HEARING. THE COURT RETAINS JURISDICTION, HOWEVER, FOR ANY RULING ON PETITIONER'S MOTION FOR SANCTIONS IN DISCOVERY. BY THE COURT-GEORGE E HOFFER, J. 11/10/04 29 CITATION ISSUED 11/10/04 FOR HEARING ON 11/22/04 AT 1:30 PM IN 5TH HEARING ROOM BY THE REGISTER GLENDA FARNER STRASBAUGH JAMES NEALON ESQ FOR ELIZABETH BARTH PAULA J MCDERMOTT ESQ FOR BRIAN GROSS JOHNNA KOPECKY ESQ FOR MARYELLEN BROUSE ANTHONY GROSS 11/30/04 30 ORDER OF THE REGISTER OF WILLS DATED 11/30/04 IN RE: PETITION FOR REVOCATION OF LETTERS AND REMOVAL OF ADMINISTRATRIX. LETTERS ISSUED TO ELIZABETH BARTH REMAIN AS ISSUED AND E BARTH SHALL NOT BE REMOVED AS ADMINISTRATIX - BY THE REGISTER GLENDA FARNER STRASBAUGH 12/09/04 31 NOTICE OF APPEAL PETITION FOR REVIEW AND REQUEST FOR EVIDENTIARY HEARING FILED BY BRIAN JOHN GROSS 12/29/04 32 REV 1607 INH TAX STATEMENT OF ACCT ACN 03137535 TAX DUE $.25 PAID IN FULL 1/10/05 33 REV 1607 INH TAX STATEMENT OF ACCT - ACN 03137535 1/27/05 1/31/05 1/31/05 2/04/05 TAX DUE $.25 PAID IN FULL 34 TRANSCRIPT IN RE: PETITION FOR REMOVAL OF EXECUTRIX AND REMOVAL OF LETTERS OF ADMINISTRATION - HEARING HELD 11/22/04 35 ORDER OF COURT - DATED: 1-28-05 IT IS ORDERED THAT A HEARING SHALL BE CONDUCTED ON THE ISSUE OF WHETHER ELIZABETH VARTH WAS THE COMMON LAW WIFE OF THE LATE DAVID GROSS AND THUS PROPERLY GRANTED LETTERS OF ADMINISTRATION IN HIS ESTATE IN COURTROOM NO.2 @ 1:30 PM FRIDAY 2-25-2005. BY THE COURT - EDGAR B BAYLEY JUDGE 36 ORDER OF COURT - DATED 1-28-05 A HEARING SHALL BE CONDUCTED IN COURTROOM NO.2 @ 11:00 A.M. FRIDAY 2-11-2005 ON THE ISSUE OF WHETHER REQUESTED SANCTIONS FOR THE FAILURE TO RESPOND TO DISCOVERY REQUESTED SANCTIONS FOR THE FAILURE TO RESPOND TO DISCOVERY REQUESTS SHOULD BE GRANTED. BY THE COURT - EDGAR B BAYLEY JUDGE 37 ENTRY OF APPEARANCE OF JAMES J KUTZ, ESQ AS CO-COUNSEL FOR PETITIONER BRIAN J GROSS . . 16265106242005 ORC621 Case No 2003-01065 2/14/05 2/25/05 4/14/05 ~ 4/14/05 4/14/05 4/18/05 5/09/05 5/11/05 5/13/05 Cumberland County - Orphans Court Page 4 38 ORDER OF COURT - DATED 2-14-05 HEARING SCHEDULED FOR 2-25-05 IS CANCELLED. ARGUMENT SHALL BE CONDUCTED IN CHAMBERS ON 3-18-05 @ 4:00 PM. BY THE COURT - EDGAR B BAYLEY JUDGE 39 MEMORANDUM-PETITIONER BRIAN JOHN GROSS' MEMORANDUM IN RESPONSE TO THIS HONORABLE COURT'S ORDER OF FEBRUARY 14, 2005 40 OPINION AND ORDER OF COURT DATED 4-13-05 IN RE: PETITION TO REVOKE LETTERS OF ADMINISTRATION 1 THE ORDER OF THE REGISTER OF WILLS OF CUMBERLAND COUNTY DENYING THE PETITION OF BRIAN J GROSS TO REVOKE THE LETTERS OF ADMINISTRATION TO ELIZABETH BARTH IN THE ESTATE OF DAVID GROSS IS REVERSED. 2 THE REGISTER OF WILLS OF CUMBERLAND COUNTY IS DIRECTED TO REVOKE THE LETTERS OF ADMINISTRATION ISSUED TO ELIZABETH BARTH AND ON PETITION ISSUE LETTERS OF ADMINISTRATION TO BRIAN J GROSS. BY THE COURT EDGAR B BAYLEY-JUDGE 41 ORDER OF COURT DATED 4-13-05 IN RE: PETITION TO REVOKE LETTERS OF ADMINISTRATION 1 THE ORDER OF THE REGISTER OF WILLS OF CUMBERLAND COUNTY DENYING THE PETITION OF BRIAN J GROSS TO REVOKE THE LETTERS OF ADMINISTRATION TO ELIZABETH BARTH IN THE ESTATE OF DAVID GROSS IS REVERSED. 2 THE REGISTER OF WILLS OF CUMBERLAND COUNTY IS DIRECTED TO REVOKE THE LETTERS OF ADMINISTRATION ISSUED TO ELIZABETH BARTH AND ON PETITION ISSUE LETTERS OF ADMINISTRATION TO BRIAN J GROSS. BY THE COURT EDGAR B BAYLEY-JUDGE 42 ORDER OF THE REGISTER OF WILLS DATED 4/14/05 INRE: PETITION TO REVOKE LETTERS OF ADMINISTRATION AND ORDER OF COURT. LETTERS GRANTED ON 4/20/04 ARE REVOKED. BRIAN J GROSS MAY PROCEED WITH THE FILING OF A PETITION FOR GRANT OF LETTERS OF ADMINISTRATION. GLENDA FARNER STRASBAUGH. 43 PETITION FOR GRANT OF LETTERS OF ADMINISTRATION DBN OATH OF PERSONAL REPRESENTATIVE DECREE OF PROBATE AND GRANT OF LETTERS 44 PETITION TO SHOW CAUSE WHY FUNDS OBTAINED BY THE EFFORTS OF POST & SCHELL PC AND CURRENTLY HELD IN POST & SCHELL'S ESCROW ACCOUNT SHOULD NOT BE CHARGED FOR ATTORNEYS' FEES BEFORE RELEASE TO THE ESTATE OF DAVID M GROSS 45 RULE TO SHOW CAUSE - IN RE: PETITION TO SHOW CAUSE WHY FUNDS OBTAINED BY THE EFFORTS OF POST AND SCHELL AND CURRENTLY HELD IN POST AND SCHELL ESCROW ACCOUNT SHOULD NOT BE CHARGED FOR ATTORNEYS FEES BEFORE RELEASE TO THE ESTATE OF DAVID M GROSS - NOW THIS 10TH DAY OF MAY A RULE TO SHOW CAUSE IS ISSUED AS TO WHY FEES AND COSTS OF 40,470.76 SHOULD NOT BE RETAINED BY POST AND SCHELL PRIOR TO DISTRIBUTION - RULE RETURNABLE 30 DAYS AFTER SERVICE - BY THE COURT EDGAR B BAYLEY J 46 NOTICE OF APPEAL - ELIZBETH BARTH HEREBY APPEALS TO THE SUPERIOR . . 16265106242005 ORC621 Case No 2003-01065 COURT OF PA FROM THE ORDER OF 4/13/05 - JAMES G NEALON III ESQ Cumberland County - Orphans Court Page 5 5/16/05 47 NOTICE OF APPEAL MAILED VIA UPS ON 5/16/05 5/19/05 48 AFFIDAVIT OF SERVICE 5/20/05 49 RETURN RECEIPT FROM SUPERIOR COURT RECEIVED DOCKETING STATEMENT RECEIVED - ORIGINAL RECORD DUE 6/27/05 DOCKET NO. 818 MDA 2005 6/08/05 50 ANSWERS TO PETITION TO SHOW CAUSE WHY FUNDS SHOULD NOT BE RELEASED TO POST & SCHELL, P.C. 6/10/05 51 ANSWER TO ORDER FOR RULE TO SHOW CAUSE BY ADMINISTRATION OF DAVID M GROSS ESTATE 6/15/05 52 PETITIONER POST AND SCHELL, PCS REPLY TO NEW MATTER ... . . James J. Kutz, Esquire Attorney ID # 21589 Paula J. McDermott, Esquire Attorney ID # 46664 Post & Schell, P.C. 17 North Second St., 12th Fl. Harrisburg, PA 17101 (717) 731-1970 IN RE: ESTATE OF DAVID M. GROSS IN THE ORPHANS' COURT CUMBERLAND COUNTY, PENNSYLVANIA NO. 2103-1065 TO: THE HONORABLE EDGAR BAYLEY, J. PETITIONER POST & SCHELL. P.c.'S REPLY TO NEW MATTER The averments of the Petition to Show Cause are incorporated hereby; the numbering of the New Matter is incorporated hereby. 9. The averments of the Petition to Show Cause are hereby incorporated by reference. 10. Admitted in part and denied in part. It is admitted that an appeal to the Superior Court has been filed. It is specifically denied that any supersedeas is in effect which would prohibit distribution of funds of the estate. 11. Denied. It is specifically denied that the amount of funds that should go to the heirs of decedent, David Gross, is currently unknown. To the contrary, the opinion of the lower court is comprehensive and unassailable. By way of further answer, Post & Schell would be prepared to refund the monies in the unlikely event that the Superior Court would overturn the well reasoned opinion of Judge Bayley. v-- S L_ . . 12. Admitted in part and denied in part. It is admitted that no accounting has been presented. It is specifically denied that any accounting should reasonably be required. The work done to obtain the funds for the estate was extensive and complex, involving numerous depositions, hearings, numerous briefings, discovery issues, and many other complex and varied tasks. 13. Denied. It is specifically and indignantly repudiated that the amount of fees earned is excessive. To the contrary, as indicated in the previous response, the work was long, difficult and complex and involved hearings, briefings, depositions and many other matters. By way of further answer, the recovery would be considerably less than a contingency fee arrangement would have generated. It is specifically denied that any of the fees generated are due to "a persistent and overbearing client." By way of further answer, had it not been for the persistence of Brian John Gross, the funds would still be in the hands of Elizabeth Barth. Mr. Gross' siblings did nothing to obtain the funds for the estate. 14. Admitted in part and denied in part. It is admitted that most of the pleadings and filings were completed with neither the knowledge of Respondents, nor their permission or acquiescence. That any such permission or acquiescence was required is specifically denied. It is significant to note that no objection up to the present time has been made to the handling of the case by the representative of beneficiaries, Mary Ellen Brouse and Anthony Gross. To the contrary, Ms. Brouse and Mr. Anthony Gross were apparently satisfied to reap the fruits of Brian Gross' labors without sharing in the costs. 15. Denied. Petitioner is without knowledge or information to form a belief as to the truth of these averments, and proof thereof, if material, is demanded at the time of hearing. By way of further answer, Respondents did not brief any of the matters, did not participate in theO 2 . . discovery, did not testify at the hearing, or III any way contribute to the victorious result achieved. Under those circumstances, the estate and its administrator and attorney will have to judge whether there is an entitlement to fees. 16. Denied. It is specifically denied that there is any relevance to what has happened in the underlying personal injury action. By way of further answer, the instant matter was a highly contested litigation as to whom the proceeds of the settlement should be paid, and many and complex litigation tasks were undertaken by Petitioner to achieve the highly successful result attained. WHEREFORE, Petitioner respectfully requests your Honorable Court to award the fees as requested. Respectfully submitted, POST & SCHELL, P.C. f~ ~. f'u-c ~.. JAMES J. K Z, ESQUIRE Attorney ID # 21589 PAULA J. MCDERMOTT, ESQUIRE Attorney ID # 46664 17 North Second Street 12th Floor Harrisburg, PAl 71 01 (717) 731-1970 Attorneys for Post & Schell, P.C. Date: June I~, 2005 3 . . CERTIFICA TE OF SERVICE I, Paula J. McDermott, Esquire, do hereby certify that on the date set forth below, I did cause to be served 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: Johnna J. Kopecky, Esquire Shagin & Anstine, LLC 300 North Second Street 8th Floor P. O. Box 1225 Harrisburg, P A 17108-1225 Mr. Brian J. Gross 1 Spend-a-Buck Drive Dillsburg, P A 17109 as Executor of the Estate of David Gross POST & SCHELL, P. C. f ~t. n..cc t).1L.t.Jt;- Paula J. Mc ermott, EsqUIre Date: June \i ,2005 - . . .. Brian J. Gross I Spend-A-Buck Dr. Dillsburg, P A. 17019 IN RE: EST A TE OF DAVID M. GROSS IN THE ORPHANS' COURT CUMBERLAND COUNTY, PENNSYLVANIA NO. 2103-1065 ANSWER TO ORDER FOR RULE TO SHOW CAUSE BY ADMINISTRATOR OF DAVID M. GROSS ESTATE TO: THE HONORABLE JUDGE EDGAR BA YLEY I. Post & Schell Pc. has been holding in escrow the proceeds of the Settlement of the Survival Action pursuant to an order issued by Judge Todd Hoover of Dauphin County in a case docketed as NO. 2601-S-1999 THE ESTATE OF DAVID M. GROSS v. ARCHIBALD BUILDERS (exhibit A) 2. The undersigned sought legal assistance from Post & Schell after Elizabeth Barth fraudulently gained control of David Gross' Estate by masquerading as his common-law wife. 3. Post & Schell PC successfully litigated the case tried before this honorable court that resulted in the removal of Elizabeth Barth as Administrator ofthe David M. Gross Estate and led to my appointment instead. 4. Since my appointment as Administrator, I have been informed that an appeal has been filed by attorney James Nealon on behalf of Elizabeth Barth contesting her removal as Administrator. I will rely on the guidance of this court as to what impact if any this should have on Post & Schell's motion for payment. 5. I have no objection to the Petition filed by Post & Schell PC whereby they seek to deduct their costs ~11~ f~es from the escrow account held for the David M. Gross Estate prior to distributing the prOPl:"Q~ tp the same. Respelc. Ily submitted, /'--, / .(]I: /' .,/1 'i/;~':t~ ( Brian J. Gross, Administrator David M. Gross Estate C'-.. June 10,2005 c~ 5~ . . ,. CERTIFICA TE OF SERVICE I, Brian J. Gross do hereby certity that on the date set forth below, I did cause to be served a true and correct copy of the foregoing dO~\lment upon the following persons at the followlpg addresses indicated below by sending same in the Unj'ted States mail, first-class, postage pre-paid. Paula J. McDermott, Esquire James J. Kutz, Esquire Post & Schell P.C. 17 North Second Street 12th Floor Harrisburg, P A. 17101 Johnna J. Kopecky, Esquire Shagin & Anstine, LLC 300 North Second Street 8th Floor P.O. Box 1225 Harrisburg, P A. ] 7] 08-1225 June )0, 2005 ~ ~;~~.._. j/{" Brian J. Gross . . ['f Jr\ \' 6 )- fI , I ~ v. : IN THE COURT OF COMJ\.fON PLEAS : DAUPHIN COUNTY, PENNSYLVrhN1A = c 5? .r,- c ~ c C? N -1 : NO. 2601-S-1999 TI-IE EST ATE OF DAVID M. GROSS, Plaintiff ARCHIBALD BUILDERS, Defendant --.-.' v.....- l"TIz: : :z: zc : JURY TRIAL DEMANDED ';p-c' c::. ,- ',>J .~O~':~.' -" -~,' -., : \ t .-............, -- __ .. i ~ -0 ~ 0---0 _.,.,0__ Om-.:::, --\ 0 ,T, ?41CJ ::c :z --\ -< - .. -< e,..) ..... ORDER "r-, AND NOW, this P day of August, 2004, upon consideration of the Petition for Approval of the Setdement of the Survival Action ftled in this case and the Release signed by Ramona Gross, Administratrix of the Estate of David M. Gross, the Court hereby approves the setdement as set forth below. The Court directs that the potential beneficiaries of the Estate of David M. Gross sign a Confirmation of Release affirming the setdement and Release negotiated by Ramona Gross as Administratrix of the Estate of David M. Gross with Archibald Builders prior to her death, as their interests may appear. It is further ordered that the setdement proceeds are allocated and sh4ll be distributed as follows: Survival Action (1000/0) (funds to be held in escrow by the Estate of David Gross pending a determination of the distribution to the beneficiaries.) ,::Jj ".2 l 2004 b. Litvin, Blumberg, Matusow & Young I he."d)V c":.;:.c,,I ;"1"" 'h" I .. Counsel fees (33-1/3%) f ,''v', v. :.,Ii II 'JL l. ~ IOrGgomg IS a ,rue ana cormw COPY~Of iho original lii<<I. . :::;._3fro.,(7J C:!,. /-1 ~ I Prothonotary a. $156,255.26 $144,693.79 .. 113103.1 . c. Litvin, Blumberg, Matusow & Young Reimbursement of costs cL Erie Insurance Oien) e. Bank of America, N.A. Oien) . BY TIlE COURT: $15,918.63 $132,193.79 $938.53 ~!~ . . ,. IN RE: ESTATE OF DAVID M.. GROSS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS COURT DIVISION No. 2103-1065 ANSWER TO PETITION TO SHOW CAUSE WHY FUNDS SHOULD NOT BE RELEASED TO POST & SCHELL. P.C. AND NOW, comes the Respondents, MaryEllen Brouse and Anthony Gross, by and through their attorneys, Shagin & Anstine LLC, and respectfully Answers the Petition of Post & Schell, P.C., as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted in part, denied in part; it is admitted that Post & Schell made efforts to obtain funds in this estate, but it is denied that any funds have been received by the estate at this time. To plead further, see New Matter, below. 5. Denied; the allegation in this paragraph constitutes a conclusion oflaw to which no response is required. To the effect that a response is required, please see New Matter, below. 6. Denied; the allegation in this paragraph constitutes a conclusion of law to which no response is required. To the effect that a response is required, please see New Matter, below. 7. Admitted in part, denied in part; it is admitted that the funds generated should be an asset of the Estate, but it is denied that the matter was successfully litigated. 8. Admitted in part, denied in part; it is admitted that the funds requested may be less than 25%, but it is denied that it is considerably less than a contingent fee arrangement. WHEREFORE, the Respondents respectfully request Your Honorable Court to dismiss the Petition for Attorney's fees, or in the alternative, to order an accounting and to withhold final determination until the Appeal is resolved. v" 50 I . . NEW MATTER 9. Paragraphs one through eight are incorporated by reference. 10. The underlying matter is on Appeal to the Superior Court, and a final determination as to whom is entitled to take out Letters of Administration, as well as the final outcome of where the funds shall be distributed has yet to be resolved. 11. It is premature to award attorney's fees when no one will know the amount of funds that should go to the heirs of decedent, David Gross, rather than the alleged common-law wife of the decedent. 12. No accounting showing how the amount of fees alleged to have been earned has been presented to the Respondents or to the Court. 13. In addition, the amount of fees alleged to have been earned is extremely excessive, given the amount of work that was performed by the law firm. It is submitted that the firm wishes to be reimbursed for fees generated predominantly as a result of a persistent and overbearing client. 14. Further, many of the pleadings and filings were completed with neither the knowledge of the Respondents nor their permission or acquiescence. In many cases, they were included after the fact or with late notice, and did not have the opportunity to determine the best and most cost- efficient means of handling the matter. 15. Funds have also been incurred by the undersigned, and the Respondents realize that it is premature at this time to seek reimbursement for those fees and cost. 16. In the underlying personal injury action, the Plaintiffs attorneys already deducted a contingency fee of one-third, and having to deduct such a large amount again for attorney's fees will severely reduce the estate available for distribution. WHEREFORE, the Respondents respectfully request Your Honorable Court to dismiss the Petition, Order an accounting of the fees alleged to have been generated, and to defer final determination until the Appeal has been resolved. Respectfully submitted, ~ ''''''".:-/ ,) ~. / -- _// 10 . y. KopeQl(y, ESQUi0 Shagm & Anstme LLC (.."" 300 North Second Street, 8th Floor Harrisburg, P A 17110 (717) 221-1111 0# . . VERIFICATION I verify that the statements made in this Answer to Petition are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. DA TED: JU./1-~ 0 200 s-- ~a. fl/UU~ Mary ~ en Brouse ~,-Jv,~ Jill ony ss . ,. . . J IN RE: ESTATE OF DAVID Moo GROSS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS COURT DIVISION No. 2103-1065 CERTIFICA TE OF SERVICE I certify that I served a copy of the Answer to Petition to Show Cause with New Matter to the undersigned, by First-class mail, postage prepaid: James J. Kutz, Esquire Post & Schell, P.C. 17 North Second Street, 12th Floor Harrisburg, PAl 71 01 James G. Nealon III, Esquire Nealon & Gover 2411 North Front Street Harrisburg, P A 17110 Respectfully submitted, Date: ,Jur,-l 7, ? 0 0:7 ,\ '''; . . Register of Wills of Cumberland County TO: Prothonotary Superior Court of Pennsylvania 100 Pine Street Suite 400 Harrisburg P A 17101 Date: May 16, 2005 Estate of David M. Gross Docket No. 21-03-1065 Please acknowledge receipt of the above Notice of Appeal by signing and returning this form. Received in Superior Court MAY 11 2005 MIDDLE Prothonotary Superior Court of Pennsylvania Superior Court Docket Number Date Received l-\-q . COMMON\\TEALTH OF PENNSYLVW David A. Szewczak, Esq. Prothonotary Patricia A. Whittaker Deputy Prothonotary SuperiorCourt of Pennsylvania Middle District May 17, 2005 llIO PlOe Street. Suite 400 J larrisbuw. P;\ 17]01 717-772-1294 www.supenor.coun.state.pa.us Ms. Mary C. Lewis Register of Wills & Orphans' Court Clerk Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Re: 818 MDA 2005 In Re: Estate of David M. Gross Appeal of: Elizabeth Barth, Appellant Dear Ms. Lewis: Enclosed please find a copy of the docket for the above appeal that was recently filed in the Superior Court. Kindly review the information on this docket and notify this office in writing if you believe any corrections are required. Appellant's counsel is also being sent a Docketing Statement, pursuant to Pa.R.A.P. 3517, for completion and filing. Please note that Superior Court Dockets are available on the Internet at the Web site address printed at the top of this page. Thank you. Very truly yours, David A. Szewczak Prothonotary VSL ;.i~_ ,.,j: .r:\'.~ . 2:46 P.M. . Appeal Docket Sheet Docket Number: 818 MDA 2005 Page 1 of 3 May 17, 2005 . Superior Court of Pennsylvania ~ In Re: Estate of David M. Gross Appeal of: Elizabeth Barth, Appellant Initiating Document: Notice of Appeal Case Status: Active Case Processing Status: May 17, 2005 Journal Number: Case Category: Civil Consolidated Docket Nos.: Next Event Type: Receive Docketing Statement Next Event Type: Original Record Received 5/17/2005 Awaiting Original Record CaseType: Estate/Pro bate/Wi II s/l ntestate Related Docket Nos.: SCHEDULED EVENT Next Event Due Date: May 31, 2005 Next Event Due Date: June 27,2005 3023 (, 2:46 P.M. . . Superior Court of Pennsylvania Appeal Docket Sheet Docket Number: 818 MDA 2005 Pa~e 2 of 3 May 17, 2005 Appellant Pro Se: IFP Status: Appellee Pro Se: IFP Status: Appellee Pro Se: IFP Status: Fee Date 5/13/05 5/17/2005 COUNSEL INFORMATION Barth, Elizabeth Appoint Counsel Status: No Appellant Attorney Information: Attorney: Nealon III, James G. Bar No.: 46457 Law Firm: Nealon, Gover & Perry Address: 2411 N Front Street Harrisburg, PA 17110 Phone No.: (717)232-9900 Fax No.: (717)236-9119 Receive Mail: Yes E-Mail Address: Receive E-Mail: No Gross, Brian John Appoint Counsel Status: Appellee Attorney Information: Attorney: Kutz, James J. Bar No.: 21589 Law Firm: Address: Post & Schell, PC 240 Grandview Ave. Camp Hill, PA 17011 Phone No.: (717)731-1970 Fax No.: Receive Mail: Yes E-Mail Address: Receive E-Mail: No MaryEllen Brouse and Anthony Gross Appoint Counsel Status: Appellee Attorney Information: Attorney: Kopecky, Johnna J. Bar No.: 53147 Law Firm: Shagin & Anstine LLC Address: 300 N Second St 8th Floor Harrisburg, PA 17101 Phone No.: (717)221-1111 Fax No.: (717)221-1110 Receive Mail: Yes E-Mail Address:jkopecky@shaginanstine.com Receive E-Mail: No FEE INFORMATION Fee Name Notice of Appeal Fee Amt 60.00 Paid Amount 60.00 ra Receipt Number 2005SPRMD000401 3023 2:46 P.M. . ~ . Superior Court of Pennsylvania Appeal Docket Sheet Docket Number: 818 MDA 2005 Page 3 of 3 May 17, 2005 ~ TRIAL COURT/AGENCY INFORMATION Court Below: Cumberland County Court of Common Pleas County: Cumberland Date of Order Appealed From: April 13, 2005 Date Documents Received: May 17, 2005 Order Type: Order Entered Division: Orphans' Court Judicial District: 9 Date Notice of Appeal Filed: May 13, 2005 OTN: Judge: Bayley, Edgar B. Judge Lower Court Docket No.: 21-03-1065 ORIGINAL RECORD CONTENTS Original Record Item Filed Date Content/Description Date of Remand of Record: BRIEFS Filed Date Docket EntrylDocument Name DOCKET ENTRIES Party Type Filed By May 17, 2005 Notice of Appeal Filed Appellant Barth, Elizabeth May 17, 2005 Docketing Statement Exited (Civil) Middle District Filing Office ~ '.,. 5/17/2005 3023 .- . . James J. Kutz, Esquire Attorney ID # 21589 Paula J. McDermott, Esquire Attorney ID # 46664 Post & Schell, P.C. 17 North Second Street 12th Floor Harrisburg, PAl 71 01 (717) 731-1970 IN RE: ESTATE OF DAVID M. GROSS IN THE ORPHANS' COURT CUMBERLAND COUNTY, PENNSYL V A~IA NO. 2103-1065 \... . AFFIDAVIT OF SERVICE I, James J. Kutz, Esquire, hereby certify that I have this date served a copy of the Petition to Show Cause Why Funds Obtained by the Efforts of Post & Schell, P.c. and Currently Held in Post & Schell's Escrow Account Should Not Be Charged for Attorneys' Fees Before Release to the Estate of David M. Gross, as well as the Court's Rule to Show Cause dated May 10, 2005 requiring a response to the Petition on James G. Nealon, III, Counsel of Record for Elizabeth Barth by placing same in the United States Mails, First-Class Mail, postage prepaid, addressed as follows: James G. Nealon, III, Esquire, Nealon & Gover, 2411 North Front Street, Harrisburg, PA 17110. POST & SCHELL, P.C. Date: May 18, 2005 ~ LiS . . CERTIFICATE OF SERVICE I, James J. Kutz, Esquire, hereby state that I have this day caused to be served a true and correct copy of the foregoing Affidavit of Service upon the persons and at the addresses below named, by U.S. Mail, First-Class, postage prepaid: Johnna J. Kopecky, Esquire Shagin & Anstine, LLC 300 North Second Street, 8th Fl. P.o. Box 1225 Harrisburg, P A 17108-1225 James G. Nealon, III, Esquire Nealon & Gover 2411 North Front Street Harrisburg, PAl 711 0 POST & SCHELL, P.c. Dated: May 18, 2005 -. . . IN RE: ESTATE OF IN THE COURT OF COMMON PLEAS DAVID M. GROSS CUMBERLAND COUNTY, PENNSYLVANIA 21-03-1065 ORPHANS' COURT NOTICE OF APPEAL Notice is hereby given that Elizabeth Barth hereby appeals to the Superior Court of Pennsylvania from the Order entered in this matter on the 13th day of April, 2005. This Order has been entered and the docket as evidenced by the attached copy of the docket entry. Pursuant to Pa.R.P. 904(c), I hereby certify that the transcript has already been lodged of record. Respectfully submitted, r" ! i \ NE~.=O.....=~.,...~~.~~ .... ,.;.'1"'" PE~~Y " ..j .. / / . - ,/ :. -----. By: James G. Nealon, III Attorney 10# 46457 2411 North Front Street Harrisburg, PA 17110 (717) 232-9900 , , 'c.....'-' -"\ ~ "", '",;'..' ; \\(~l \,,{ J \ 0 '\.'rC( ~;(l~\C) 11lU) \)L-\ II PS 4\0 ,.l I / '\" . . CERTIFICATE OF SERVICE AND NOW, this 1311,'\ day of May, 2005, I hereby certify that I have served the foregoing Notice of Appeal on the following by depositing a true and correct copy of same in the United States mail, postage prepaid, addressed to: James J. Kutz, Esquire Post & Schell, P.C. 240 Grandview Avenue Camp Hill, PA 17011 Johnna Kopecky, Esquire 300 North 2nd Street, 8th Floor Harrisburg, PA 17101 The Honorable Edgard B. Bayley Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 Court Administrator of Cumberland County Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 Marie T. Farley, Court Reporter 1608 Maple Street New Cumberland, PA 17070 J \._.' .,' --;""1 2 / /~'\\J Glenda Famer Strasbaugh Register of Wills & Clerk of the Orphans' Court . . One Courthouse Square Carlisle, Pa. 17013 Marjorie A. Wevodau First Deputy Kirk S. Sohonage, Esquire Solicitor (717) 240-6345 FAX (717) 240-7797 OFFICES OF l\egi5ter of aJllliU5 anh ((lerk of tf)e erpuans' ([curt qI:ountp of qI:umbedanb May 16, 2005 Prothonotary Superior Court of Pennsylvania 100 Pine Street Suite 400 Harrisburg PA 17101 Dear Sir: Enclosed you will find a Notice of Appeal and Certificate of Service on the following case: Estate of David M. Gross Docket No. 21-03-1065 This notice was filed with the Clerk of Orphans' Court on May 13,2005. Respectfully, ~ ld~(~!lCUI{CL)1ilcw !~~ Glenda Famer Strasbaugh Clerk of the Orphans' Court Ene: Notice of Appeal Certificate of Service Docket Entries Check for Docketing fee Ilwkd C~ 511~(0!5 (fltD \ SUE COpy FROM RECORD . . ill Testimony wherof, I hereunto set my hand and the seal of said Court at Carlisle. PA kh .. / This jlY dayof~20Ql::J . ~!) f I~J wirft4V;J~/\O{flk(~'r I ~ Clerk of the Orphans Court rc ~~.~.~ '. I Cumberland County l ~ Cumberland County - Register Of wills Page 1 5/16/2005 PA File No 2103-01065 14275205162005 ROW621 File No 2003-01065 Decedent GROSS DAVID M Docket Entries D/E Date No. Filed 001 12/26/03 PETITION FOR GRANT OF LETTERS OF ADMINISTRATION OATH OF PERSONAL REPRESENTATIVE DEATH CERTIFICATE 002 12/26/03 GRANT OF LETTERS OF ADMINISTRATION 003 03/01/04 CLAIM AGAINST ESTATE - BANK OF AMERICA STATEMENT OF ACCOUNTS 004 04/16/04 PETITION OF ELIZABETH M BARTH TO REVOKE LETTERS OF ADMINISTRATION AND REQUESTING THAT LETTERS OF ADMINISTRATION BE ISSUED TO ELIZABETH M BARTH FILED BY JAMES G NEALON, III ESQ. 005 04/19/04 PETITION FOR GRANT OF LETTERS OF ADMINISTRATION D.B.N. OATH OF PERSONAL REPRESENTATIVE 006 04/20/04 GRANT OF LETTERS OF ADMINISTRATION D.B.N. 007 04/26/04 ANSWER OF RESPONDENTS IN OPPOSITION TO THE PETITION OF ELIZABETH M. BARTH TO REVOKE LETTER OF ADMINISTRATION AND REQUESTING THAT LETTERS OF ADMINISTRATION BE ISSUED TO ELIZBETH M. BARTH 008 04/28/04 LETTER OF JAMES G. NEALON, III DATED 4/23/04. WITHDRAW OF PETITION TO REVOKE LETTERS OF ADMINISTRATION ISSUED TO RAMONA B. GROSS. 009 05/11/04 PETITION FOR REVOCATION OF LETTERS AND REMOVAL OF ADMINISTRATRIX oio 05/14/04 CITATION OF THE CLERK OF ORPHANS COURT TO JAMES NEALON ESQUIRE FOR ANSWER WITHIN TEN DAYS. GLENDA FARNER STRASBAUGH DATED 5/14/04 011 05/17/04 DEATH CERTIFICATE OF RAMONA GROSS FILED BY JAMES G NEALON, III. 012 OS/21/04 ISSUED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22. 013 OS/27/04 RESPONSE OF ELIZABETH BARTH TO PETITION FOR REVOCATION OF LETTERS AND REMOVAL OF ADMINISTRATRIX 014 06/15/04 PETITIONER BRIAN JOHN GROSS' REPLY WITH NEW MATTER TO NEW MATTER OF ELIZABETH BARTH. . . 14275205162005 ROW621 File No 2003-01065 Decedent GROSS DAVID M Cumberland County - Register Of wills Page 2 5/16/2005 PA File No 2103-01065 )15 07/06/04 VERIFICATION OF ELIZABETH M BARTH 016 07/09/04 PETITION OF BRIAN J GROSS TO LIST MATTER FOR HEARING. FILED BY PAULA J MCDERMOTT ESQ 017 07/29/04 ORDER - SIGNED 7-27-04 IN RE: PETITION FOR HEARING IS GRANTED. A HEARING IS SCHEDULED FOR 10-04-04 @ 9:30 AM IN COURTROOM NO.3. BY THE COURT - GEORGE E HOFFER PJ 018 09/17/04 REV 1548 NOTICE INH TAX APPR JOINT ASSETS ACN 03137535 TAX DUE $83.23 019 10/01/04 BRIEF OF BRIAN JOHN GROSS IN SUPPORT OF PETITION FOR REVOCATION OF LETTERS AND REMOVAL OF ADMINISTRATRIX - PAULA MCDERMOTT ESQ 020 10/01/04 MOTION IN LIMINE FOR SANCTIONS FOR FAILURE TO RESPOND TO DISCOVERY REQUEST - PAULA MCDERMOTT ESQ 021 10/01/04 ORDER OF COURT 10/1/04 IN RE: HEARING DATE HEARING ORIGINALLY SET FOR 10/4/04 IS CONTINUED TO MONDAY 11/8/04 AT 9:30 AM IN COURTROOM #3 - BY THE COURT GEORGE E HOFFER PJ 022 10/07/04 ORDER OF COURT AND NOW THIS 6TH DAY OF OCTOBER 2004 UPON CONSIDERATION OF PETITIONERS MOTION FOR 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 023 10/21/04 RESPONSE OF ELIZABETH BARTH TO MOTION IN LIMINE FOR SANCTIONS FOR FAILURE TO RESPOND TO DISCOVERY REQUESTS. 024 10/26/04 REV 1548 NOTICE INH TAX APPR JOINT ASSETS PAID - 83.23 ACN - 03137535 RECEIPT - CD004570 POSTMARK DATED - 10/26/2004 BARTH ELIZABETH M 025 10/28/04 ORDER OF COURT DATED 10/28/04 IN RE: PETITIONERS MOTION IN LIMINE , A DISCOVERY HEARING IS SCHEDULED FOR 12/8/04 AT 2:30 1M CTRM 1 - BY THE COURT J WESLEY OLER JUDGE 026 11/04/04 ORDER OF COURT DATED 11/3/04 IN RE: PETITIONERS MOTION IN LIMINE FOR SANCTIONS FOR FAILURE TO RESPOND TO DISCOVERY REQUEST AND RESPONSE OF ELIZABETH BARTH TO MOTION IN LIMINE FOR SANCTIONS FOR FAILURE TO TO RESPOND SHALL BE TRANSFERRED TO GEORGE E HOFFER J . . 14275205162005 ROW621 File No 2003-01065 Decedent GROSS DAVID M Cumberland County - Register Of wills Page 3 5/16/2005 PA File No 2103-01065 AND HEARD ON 11/8/04 AT 9:30 AM IN CTRM 3. PREVIOUS HEARING IS CANCELLED. BY THE COURT J WESLEY OLER JR 027 11/05/04 MEMORANDUM OF LAW IN SUPPORT OF MOTION IN LIMINE FOR SANCTIONS FOR FAILURE TO RESPOND TO DISCOVERY REQUESTS 028 11/08/04 ORDER OF COURT DATED 11/08/04 THE MATTER HAS BEEN CALLED FOR A HEAR ING ON PETITIONER'S REQUEST THAT LTRS OF ADMINISTRATION IN THIS ESTATE ISSUED TO ELIZABETH BARTH BE REVOKED UNDER SECT 3181 OF PEF CODE, AND AFTER CONFERRING WITH COUNSEL AT A PRE-HEARING CONFERENCE AND THE COURT DETERMINING THAT THE REGISTER OF WILLS HAS THE EXCLUSIVE RIGHT OF ORIGINAL JURISDICTION IN THIS MATTER, AND THE COURT DECLINING JURISDICTION UNDER SECT 3182 OF PEF CODE, THE MATTER IS REFERRED TO THE REGISTER OF WILLS FOR HEARING. THE COURT RETAINS JURISDICTION, HOWEVER, FOR ANY RULING ON PETITIONER'S MOTION FOR SANCTIONS IN DISCOVERY. 029 11/10/04 CITATION ISSUED 11/10/04 FOR HEARING ON 11/22/04 AT 1:30 HEARING ROOM BY THE REGISTER GLENDA FARNER STRASBAUGH JAMES NEALON ESQ FOR ELIZABETH BARTH PAULA J MCDERMOTT ESQ FOR BRIAN GROSS JOHNNA KOPECKY ESQ FOR MARYELLEN BROUSE ANTHONY GROSS PM IN 5TH 030 11/30/04 ORDER OF THE REGISTER OF WILLS DATED 11/30/04 IN RE: PETITION FOR REVOCATION OF LETTERS AND REMOVAL OF ADMINISTRATRIX. LETTERS ISSUED TO ELIZABETH BARTH REMAIN AS ISSUED AND E BARTH SHALL NOT BE REMOVED AS ADMINISTRATIX - BY THE REGISTER GLENDA FARNER STRASBAUGH 031 12/09/04 NOTICE OF APPEAL PETITION FOR REVIEW AND REQUEST FOR EVIDENTIARY HEARING FILED BY BRIAN JOHN GROSS 032 12/29/04 REV 1607 INH TAX STATEMENT OF ACCT ACN 03137535 TAX DUE $.25 PAID IN FULL 033 01/10/05 REV 1607 INH TAX STATEMENT OF ACCT - ACN 101 TAX DUE $.25 PAID IN FULL 034 01/27/05 TRANSCRIPT IN RE: PETITION FOR REMOVAL OF EXECUTRIX AND REMOVAL OF LETTERS OF ADMINISTRATION - HEARING HELD 11/22/04 035 01/31/05 ORDER OF COURT - DATED: 1-28-05 IT IS ORDERED THAT A HEARING SHALL BE CONDUCTED ON THE ISSUE OF WHETHER ELIZABETH VARTH WAS THE COMMON LAW WIFE OF THE LATE DAVID GROSS AND THUS PROPERLY GRANTED LETTERS OF ADMINISTRATION IN HIS ESTATE IN COURTROOM NO.2 @ 1:30 PM FRIDAY 2-25-2005. BY THE COURT - EDGAR B BAYLEY JUDGE 036 01/31/05 ORDER OF COURT - DATED 1-28-05 A HEARING SHALL BE CONDUCTED IN . . 14275205162005 ROW621 File No 2003-01065 Decedent GROSS DAVID M Cumberland County - Register Of Wills Page 4 5/16/2005 PA File No 2103-01065 COURTROOM NO.2 @ 11:00 A.M. FRIDAY 2-11-2005 ON THE ISSUE OF WHETHER REQUESTED SANCTIONS FOR THE FAILURE TO RESPOND TO DISCOVERY REQUESTED SANCTIONS FOR THE FAILURE TO RESPOND TO DISCOVERY REQUESTS SHOULD BE GRANTED. BY THE COURT - EDGAR B BAYLEY JUDGE 037 02/04/05 ENTRY OF APPEARANCE OF JAMES J KUTZ, ESQ AS CO-COUNSEL FOR PETITIONER BRIAN J GROSS 038 02/14/05 ORDER OF COURT - DATED 2-14-05 HEARING SCHEDULED FOR 2-25-05 IS CANCELLED. ARGUMENT SHALL BE CONDUCTED IN CHAMBERS ON 3-18-05 @ 4:00 PM. BY THE COURT - EDGAR B BAYLEY JUDGE 039 02/25/05 MEMORANDUM-PETITIONER BRIAN JOHN GROSS' MEMORANDUM IN RESPONSE TO THIS HONORABLE COURT'S ORDER OF FEBRUARY 14, 2005 040 04/14/05 PETITION TO REVOKE LETTERS OF ADMINISTRATION OPINION AND ORDER OF COURT 041 04/14/05 ORDER OR COURT DATED 4-13-05 IN RE: PETITION TO REVOKE LETTERS OF ADMINISTRATION 1 THE ORDER OF THE REGISTER OF WILLS OF CUMBERLAND COUNTY DENYING THE PETITION OF BRIAN J GROSS TO REVOKE THE LETTERS OF ADMINISTRATION TO ELIZABETH BARTH IN THE ESTATE OF DAVID GROSS IS REVERSED. 2 THE REGISTER OF WILLS OF CUMBERLAND COUNTY IS DIRECTED TO REVOKE THE LETTERS OF ADMINISTRATION ISSUED TO ELIZABETH BARTH AND ON PETITION ISSUE LETTERS OF ADMINISTRATION TO BRIAN J GROSS. BY THE COURT EDGAR B BAYLEY-JUDGE 042 04/14/05 ORDER OF THE REGISTER OF WILLS DATED 4/14/05 INRE: PETITION TO REVOKE LETTERS OF ADMINISTRATION AND ORDER OF COURT. LETTERS GRANTED ON 4/20/04 ARE REVOKED. BRIAN J GROSS MAY PROCEED WITH FILING OF A PET1TION FOR GRANT OF LETTERS OF ADMINISTRATION. GLENDA FARNER STRASBAUGH. THE 043 04/18/05 PETITION FOR GRANT OF LETTERS OF ADMINISTRATION DBN 044 05/09/05 PETITION TO SHOW CAUSE WHY FUNDS OBTAINED BY THE EFFORTS OF POST & SCHELL PC AND CURRENTLY HELD IN POST & SCHELL'S ESCROW ACCOUNT SHOULD NOT BE CHARGED FOR ATTORNEYS' FEES BEFORE RELEASE TO THE ESTATE OF DAVID M GROSS 045 05/11/05 RULE TO SHOW CAUSE - IN RE: PETITION TO SHOW CAUSE WHY FUNDS OBTAINED BY THE EFFORTS OF POST AND SCHELL AND CURRENTLY HELD IN POST AND SCHELL ESCROW ACCOUNT SHOULD NOT BE CHARGED FOR ATTORNEYS FEES BEFORE RELEASE TO THE ESTATE OF DAVID M GROSS - NOW THIS 10TH DAY OF MAY A RULE TO SHOW CAUSE IS ISSUED AS TO WHY FEES AND COSTS OF 40,470.76 SHOULD NOT BE RETAINED BY POST AND SCHELL PRIOR TO DISTRIBUTION - RULE RETURNABLE 30 DAYS AFTER SERVICE - BY THE COURT EDGAR B BAYLEY J .. . . RECEIVED MAY 0920051 IN RE: ESTATE OF DAVID M. GROSS : IN THE ORPHANS' COURT : CUMBERLAND COUNTY, PENNSYLVANIA NO. 2103-1065 RULE TO SHOW CAUSE f!. AND NOW, this JCl day of { \)L..,(..~ ,2005, a Rule to Show Cause is hereby issued upon the Estate of David Gross as to why fees and costs of $40,470.76 should not be retained by Post & Schell, P.c. prior to distribution of the remaining proceeds of the personal injury ", .,,, ,t ." _ ~ 4:.111 ;;'tIl" ~ <.oJ. " . . ( UAN'UlC .(~J.' ;}LX-... ~ J-IHr.u,i : lItIgatIOn to the Estate of DaVId Gross. " . ,; - .'"{' (; ~..' J.-12... ./'" .' BY THE COURT: // \ILl' l~. ~ ~. ~ < ,0..<\ :J. Gro5S > 30\'(l..n~~.:J. 'Ad(e.'-~~I [. S'l lJ" ~ ?e5-\-~ Sc-~~.\\ \~.L. Bayley, J. MCt.l \eel \J~~S 5"111 IV) ~( uA 4S . . James J. Kutz, Esquire Attorney ID # 21589 Paula J. McDermott, Esquire Attorney ID # 46664 Post & Schell, P.C. 17 North Second Street 12th Floor Harrisburg, PAl 71 01 (717)731-1970 IN RE: ESTATE OF DAVID M. GROSS IN THE ORPHANS' COURT CUMBERLAND COUNTY, PENNSYLVANIA NO. 2103-1065 PETITION TO SHOW CAUSE WHY FUNDS OBTAINED BY THE EFFORTS OF POST & SCHELL. P.c. AND CURRENTLY HELD IN POST & SCHELL'S ESCROW ACCOUNT SHOULD NOT BE CHARGED FOR ATTORNEYS' FEES BEFORE RELEASE TO THE ESTATE OF DAVID M. GROSS TO: THE HONORABLE JUDGE EDGAR BAYLEY AND NOW, comes Petitioner, Post & Schell, P.C., and respectfully requests this Honorable Court to issue a Rule to Show Cause as to why attorneys' fees to obtain funds for the Estate and currently held by Post & Schell, P.C., should not be deducted from the fund held by Post & Schell, P.c., prior to its distribution to the Estate of David M. Gross, and respectfully represents to the Court as follows: 1. Post & Schell, P.C. currently has a fund in its escrow account in the amount of $158,544.90 representing settlement proceeds payable to Mr. Gross' Estate as approved by Judge Hoover in the Dauphin County Court of Common Pleas litigation and settlement. 44 {.", 'V-C' . . 2. On April 13, 2005, this Court issued an Order finding that Elizabeth Barth was not the common law wife of the late David Gross, and appointing Brian John Gross as Administrator of the Estate of David Gross referenced above. 3. Brian John Gross has petitioned for and been issued Letters of Administration from the Register of Wills of Cumberland County. 4. Petitioner, Post & Schell, P.C., was instrumental in creating this fund for the Estate, and should be entitled to its fees and costs of $40,470.76, which Post & Schell, P.c. respectfully requests be deducted from the proceeds prior to distribution to the Estate. 5. Post & Schell, P.c. has an attorneys' retaining lien on the money which IS currently in its possession. Webber Estate, 79 Pa. D.&C. 455 (Berks County CP 1951). 6. Possession is essential to the creation and existence of the retaining lien and attaches to anything in the attorneys' hands. Webber Estate, 79 Pa. D.&C. 455 (Berks County CP1951). 7. In the instant case, Post & Schell, P.C. created a fund which will be the only asset of the Estate, and successfully litigated its distribution the beneficiaries of the Estate, Brian John Gross and Mary Ellen Brouse and Anthony Gross. Post & Schell, P.C. should be entitled to deduct its fees and costs before issuing the net proceeds to the Estate of David Gross. 8. The amount of fees and costs that is owed is less than 25% of the funds recovered by the efforts of Post & Schell, P.C. for the Estate - - considerably less than a standard contingency fee arrangement of 33 1/3 % would have brought the Estate. WHEREFORE, Petitioner Post & Schell, P.C. respectfully requests this Honorable Court to issue a Rule to Show Cause to the Estate of David Gross why the amount of $40,470.76 2 . . should not be retained by Post & Schell, P.c. as compensation for its fees and costs incurred in this matter. Respectfully submitted, POST & SCHELL, P.C. ---1~&. fw.,~~ JAMES J. K Z, ESQUIRE Attorney ID # 21589 PAULA J. MCDERMOTT, ESQUIRE Attorney ID # 46664 17 North Second Street 12th Floor Harrisburg, PAl 7101 (717) 731-1970 Attorneys for Post & Schell, P.C. Date: May~ ' 2005 3 . . . CERTIFICATE OF SERVICE I, Paula J. McDermott, Esquire, do hereby certify that on the date set forth below, I did cause to be served 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: Johnna J. Kopecky, Esquire Shagin & Anstine, LLC 300 North Second Street 8th Floor P. O. Box 1225 Harrisburg, PAl 71 08-1225 Mr. Brian J. Gross 1 Spend-a-Buck Drive Dillsburg, PAl 7109 as Executor of the Estate of David Gross POST & SCHELL, P.C. \ 1/~! (!~)c (' r '-..~)' "" I i j . -J'/M aula J. MdJermott, Esquire 'j i /!, ~:"L /' / cJ] /1 I .' I : / c Date: Mat , 2005 PETITION FoARANT OF LETTERS OF AaINISTRATION No. To: L '7__..( - 03 ~ (Ob) Register of Wil,ls for tte (/~-d: County of ey./Yl "-' . in the Commonwealth of Pennsylvania The petition of the undersigned respectfully represents that: Your petitioner(s), who is/are 18 yeafS,of age or older, appl I e.. 5 O,[>-JV, (d,b.n.; pendente lite; durante absentia; durante minoritate) the above decedent. for letters of administration on the estate of Decenden~omicile~ at, death ~n ount , Pe nsylvan' , with {~/:U PO\.@ ~ It.. . pnnclpal resIdence at ~ (; . f). 1 I l ~ (list street, number and municipahty) r (/ D \ Decendent, then Y.:J years of age, died /it~.J j \) :: -r 17 ~~ 12,6 J at If t \ /' - F I,t f/ ~ / ~ ( ..... 'j PI. \ 1::->. / j,-" .-' 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: Res~e~ce~e vet. Pf~; v~ , t-) 0 l ~ p?~-r [9 ( ~ ~\ (Ld- (7t75'~ $ $ $ $ Petitioner_ after a proper search ha_ ascertained that decedent left no will and was survived by the following .I!:t.. r~~L'" heirs: -$'. Name - ;110 r 7 Elf, o , r /11 t?'J 4....f ( Ii 'Il t. I ()( - I the grant of lety::rt 0'''' 'AdmmiSt tJon in the THEREFORE, petitioner(s) respectfully request(s) appropriate form to the undersigned. ~ ~ L- a:; ~3 <.> ~ cr:1'! "0 0 up c'= ._ COjO= _ ~ct f YI~S[Lj1 po, D~\jc: J7~ IGj ( , t..- 4~ OA. OF PERSONAL REPRESE.ATIVE COMMONWEALTH OF PENNSYLVANIA COUNTY OF CJxxn Y:UJ \ (ur:O~ } 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 d truly administer the estate according to law. ,1 1 affirmed and \ ,\1. ~_' )1-' I j L ...., ~ Q) .. ~:l ~ ~= tJ() U3 N ) . r , h o. ( i - u.-) I(lv) Estate of fu ^~i.(\ \\\ l r, D1rC:c \ I.d , Deceased GRANT OF LETTERS OF ADMINISTRATION n "r} I) I X '11" . .. . . AND NOW , )~fL;.-\, , l 'Y -,0.5 -1'9_, m consideratIOn of the petitIOn on the reverse side hereot, s~factory proof I).avm~ Qeen presented before me, IT IS DECREED that .Q\.\.G- t~ '3, ~-..:..h~ is/are enti.!led to Letters of Administration, and in acco,rd with such finding, Letters of Administration ..:l2 , l3. /G . are hereby granted to bJ'c.A 01. J ___ \, \ 1:.J1QS.s in the estate of:i)rl LLc c\ fY; l /4j/\ (lSS 11t~: i: 0 . Register of Wi~ \ J-. " J '. FEES Letters of Administration $ Short Certificates( ).......... $ 4 CD Renunciation ..... .('. . 'H . . . .. $ . .'- _oP---< LJ $ I,' S-o TOTAL _ $ ~ S;:iuC}___ Filed .. Y ~-. ! ~ -:-. ~-?.. .... A.D. 19___ ATTORNEY (Sup. Ct. I.D. No.) ADDRESS PHONE ~ . . ~ BEFORE THE REGISTER OF WILLS OF CUMBERLAND COUNTY, PENNSYL VANIA ESTATE OF DAVID M. GROSS DECEASED NO 21-03-1065 IN RE: PETITION TO REVOKE LETTERS OF ADMINISTRATION AND ORDER OR COURT ORDER OF THE REGISTER OF WILLS AND NOW, this 14th day of April, 2005, as directed in the Order of Court dated April 13, 2005 by Edgar B. Bayley J., it is hereby ordered that the Letters of Administration that were granted on April 20, 2004 to Elizabeth Barth are hereby revoked. Brian 1. Gross may proceed with the filing of a Petition for Grant of Letters of Administration. Glenda Farner Strasbaugh, Register 0 James 1. Kutz, Esquire For Petition Brian Gross James G. Nealon, Ill, Esquire For Elizabeth Barth n '''LLLQ(J 1-1 \ I ~~I(,<:S l) 5 P[bt-c.J Johnna Kopecky, Esquire For Mary Ellen Brouse and Anthony Gross GFS:mw l+l \ ~ \~ . . IN RE: ESTATE OF DAVID M. GROSS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 21-03-1065 ORPHANS' COURT IN RE: PETITION TO REVOKE LETTERS OF ADMINISTRATION ORDER OF COURT AND NOW, this 1'21-.. day of April, 2005: (1) The order of the Register of Wills of Cumberland County denying the petition of Brian J. Gross to revoke the letters of administration to Elizabeth Barth in the Estate of David M. Gross, IS REVERSED. (2) The Register of Wills of Cumberland County IS DIRECTED to revoke letters of administration to Elizabeth Barth, and on petition issue letters of administration to Brian J. Gross. J /,,'1 By the Court, / ~(I/. ./' . . L / ,.....~ . ~I Edgar B. ~ey, J. ;:, James J. Kutz, Esquire For Petitioner Brian Gross I James G. Nealon, III, Esquire For Elizabeth Barth 1 L, \, \\\~)._ ,,\( c\ \\'D 'J "," ''',I ,-,,) \LI (.S ~ l~ Johnna Kopecky, Esquire \. For Mary Ellen Brouse and Anthony Gross \ ~ ~,..~,:,,~' :sal ~~ '0.' 41 I , . . IN RE: ESTATE OF DAVID M. GROSS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 21-03-1065 ORPHANS' COURT IN RE: PETITION TO REVOKE LETTERS OF ADMINISTRATION OPINION AND ORDER OF COURT Bayley, J., April 13, 2005:-- David M. Gross, born April 27, 1957, died intestate on August 17,2003. On December 26, 2003, his mother, Ramona Gross, was granted letters of administration of his estate. Ramona Gross died on February 4, 2004. On April 12, 2004, Elizabeth Barth, representing by affidavit that she was the common law wife of David M. Gross, filed a petition to revoke the letters of administration that had been issued to Ramona Gross and petitioned that letters of administration be issued to her. On April 20, 2004, the Register of Wills granted letters of administration to Elizabeth Barth. On May 11, 2004, Brian J. Gross, a brother of decedent, filed a petition for revocation of the letters, claiming that Elizabeth Barth was not the wife of decedent and was not entitled to be issued letters of administration of his estate. A hearing was conducted before the Register of Wills on November 22, 2004. On November 30, 2004, the Register issued an order denying the petition.1 On December 9,2004, Brian Gross filed an appeal from that order. This court has not taken additional evidence. The issues were briefed and argued on March 18, 2005. The evidence before the Register of Wills was as follows. Elizabeth Barth, age 36, is a classified advertising manager for a newspaper. She testified that she met 1 No opinion was filed in support of the order. 40 , , . . 21-03-1065 ORPHANS' COURT David Gross on September 8, 1995. In either December 1995 or January 1996, at St. Patrick's cathedral in New York City, Gross asked her to marry him in the future. They started living together in February of 1996, and were "going to be married." They wanted to have a church wedding although they talked numerous times about getting married before a justice of the peace. They were never ceremonially married. Gross was seriously injured in a construction accident on September 22, 1998. He gave Barth a ring and published an engagement announcement in a newspaper in 2000 or 2001. Barth testified that she and Gross had been "engaged forever, we were just holding out until we were well enough and had enough money to actually have a very nice wedding." After Gross died, Barth participated in the preparation of his obituary which lists her as his fiancee. Under a question on his death certificate, "MARITAL STATUS - Married, Never Married, Widowed, Divorced (Specify)," Gross is listed as "Divorced." Barth was the "informant" for the preparation of that certificate, and she testified that the information is accurate. Barth never described Gross to third parties as her husband. She and Gross never described her to anyone as his wife. Gross referred to her as his "angel." He would say, "there's my angel, but someday I'm going to make it legal." On April 8, 2002, Barth and Gross signed a notarized Affidavit of Common Law Marriage on the letterhead of Health America, a medical insurance company. The preprinted form for which the date "3/1/96" was written, sets forth that "we have lived together continuously as husband and wife from 3/1/96 to the present time. During this period we have professed to be husband and wife and we have held ourselves out to -2- . , . . 21-03-1065 ORPHANS' COURT the community as being married." Barth testified that the reason for executing the Affidavit was to secure health care for Gross; it was "because of the financial situation he was in." Gross insisted on executing the Affidavit "because it was one other way to help us monetarily just get through. I mean we were drowning in medical debt." On May 12, 2000, in a deposition involving litigation for injuries that Gross incurred in his construction accident, he gave sworn testimony that he was divorced, and that was his first and only marriage. Gross's mother, Ramona Gross, testified at a deposition on November 12, 2003, that Barth was her son's girlfriend. On December 16, 2003, to the question: "Petitioner(s) after a proper search has/have ascertained that Decedent left no Will and was survived by the following spouse (if any) and heirs," Ramona Gross swore under oath in support of her petition for a grant of letters of administration, by stating her name and the name of her husband Anthony Gross. Barth testified at a deposition on August 13, 2004, that she was engaged to the late David Gross. Barth and Gross filed tax returns as single persons. Barth did not challenge the appointment of Gross's mother as administratrix of his estate. She testified that after Gross died she told a clergyman that she was "David's fiancee." During Gross's last illness she never identified herself as his wife to any of the staff or doctors caring for him. Petitioner, Brian J. Gross, testified that his family regarded Barth as his brother's girlfriend, not his wife. Neither his brother nor Barth ever described Barth to him as his brother's wife. Janelle Augsberger, a friend of Barth and Gross, testified that she was -3- , , . . 21-03-1065 ORPHANS' COURT introduced to Gross somewhere in 1995-96. Barth and Gross were planning a marriage ceremony although she considered them husband and wife. Sometime in 2001, she started introducing them to others that way, although she was never told to do that. William Dallon, a friend, testified that Barth and Gross were treated the same way as another unmarried couple in a club where he, Barth and Gross were members. Dallon, however, thought Barth and Gross were married. Susanne Fern Barth, the mother of Elizabeth Barth, testified that she advised her daughter and Gross to get married after his accident, but they did not. She referred to Gross as her son-in-law. She testified that the only reason there was no marriage ceremony was because it kept being put off as a result of the serious injuries Gross incurred in the accident in 1998. Introduced into evidence was a card sent by Gross's parents to Barth titled, "To a Special Daughter-in-law with Love." There is another card from the parents titled, "For Son and Daughter on Valentines Day." There is a card from Danielle, the daughter of the sister of Brian Gross to "Uncle Dave - Aunt Beth." At Christmas in 2001, Gross gave Barth a card titled "For My Wife," However, inside he wrote a note which stated: "Even though you technically aren't my wife - yet, !!y to convince my heart we're not married!" Barth's father sent a card to Gross titled, "For a Special Son-in-law," On Barth's application, the Social Security Administration sent Barth a notice that she would receive a $255 payment as a result of the death of Gross.2 2 Discovery was sought by petitioner to obtain the application that Barth made to the Social Security Administration, but the Federal government has not produced the document. -4- . . . . 21-03-1065 ORPHANS' COURT LEGAL PRINCIPLES In Staudenmayer v. Staudenmayer, 714 A.2d 1016 (Pa. 1998), the Supreme Court of Pennsylvania, in a plurality opinion, stated that claims for a common law marriage "are disfavored."3 The Court 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 that. Commonwealth v. Groby, 527 Pa. 98, 110, 588 A.2d 902, 907 (1991). Regarding this requirement for an exchange of words in the present tense, this Court has noted: [I]t is too often forgotten that a common law marriage is a marriage by the express agreement of the parties without ceremony, and almost invariably without a witness, by words-not in futuro or in postea, but-in praesenti, uttered with a view and for the purpose of establishing the relationship of husband and wife. Estate of Manfredi, 399 Pa. at 291, 159 A.2d at 700 (citations omitted). The common law marriage contract does not require any specific form of words, and all that is essential is proof of an agreement to enter into the legal relationship of marriage at the present time. Estate of Gavula, 490 Pa. 535, 540,417 A.2d 168, 171 (1980). The burden to prove the marriage is on the party alleging a marriage, and we have described this as a "heavy" burden where there is an allegation of a common law marriage. Id. at 540, 417 A.2d at 171. When an attempt is made to establish a marriage without the usual formalities, the claim must be reviewed with "great scrutiny." Id. at 541, 417 A.2d at 171. Generally, words in the present tense are required to prove common law marriage. Estate of Wagner, 398 Pa. at 535-36, 159 A.2d at 498. Because common law marriage cases arose most frequently because of claims for a putative surviving spouse's share of an estate, however, we developed a rebuttable presumption in favor of a common law marriage where there is an absence of testimony regarding the exchange of verba in praesenti. When applicable, the party claiming a common law marriage who proves: (1) constant cohabitation; and, (2) a reputation of marriage "which is not partial or divided but is broad and general," raises the rebuttable presumption of marriage. See Estate of Manfredi, 399 Pa. at 291, 159 A.2d at 700. Constant cohabitation, however, "even when conjoined with general 3 The law now provides that "[n]o common-law marriage, contracted after January 1, 2005, shall be valid." 23 Pa.C.S. 9 1103. -5- . . . . 21-03-1065 ORPHANS' COURT reputation are not marriage, they are merely circumstances which give rise to a rebuttable presumption of marriage." Id. (Footnotes omitted.) (Emphasis added.) Having chosen to take no additional evidence our review is to determine if the Register of Wills abused her discretion in the issuance of the letters to Barth. See In re Estate of Dodge, 361 Pa. Super. 188 (1987). Discretion is abused when the course pursed represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will. Ellenbogen Estate v. PNC Bank, N.A., 731 A.2d 175 (Pa. Super. 1999). In In re Estate of Dodge, supra, the Register of Wills of Bradford County issued letters of administration in the estate of Ronald A. Dodge to Tonia Yoder, whose petition averred that she was the widow of the decedent. The mother and guardian of decedent's son filed a petition to revoke the letters alleging that Tonia Yoder was never married to the decedent and had no interest in his estate. Following a hearing the Register of Wills, finding that a common law marriage existed between Yoder and the decedent, denied the petition to revoke the letters. On appeal, the Orphans' Court, after reviewing the record established before the Register of Wills, held that the Register abused her discretion, that Yoder's evidence was insufficient to prove a common law marriage, and that the letters of administration should be revoked. Yoder filed an appeal to the Superior Court of Pennsylvania. The Court affirmed the order of the Orphans' Court that the Register of Wills abused her discretion when she refused to revoke the letters of administration -6- . . 21-03-1065 ORPHANS' COURT granted to Yoder. The Court stated: In the instant case, the relationship between Yoder and the decedent was initially meretricious. At that time Yoder was still married to another man. She attempted to show that a change in the meretricious status had occurred following her divorce when, in December, 1982, the decedent offered her a wedding ring. Thereafter, Yoder testified, she and the decedent had referred to themselves as husband and wife. Several other witnesses also said that they had heard the decedent refer to Yoder as his "old lady" and that the two of them were reputed to be husband and wife. This evidence, however, was sharply contradicted. It was contradicted by hospital records prepared about one month before the decedent's death. Yoder, when admitted for the purpose of giving birth to a son, told hospital personnel that she was unmarried. When, following Dodge's death, the funeral director sought information from the family to be placed on the certificate of death, he was told by a member of the decedents' family in Yoder's presence that the decedent was single. Yoder did not dissent, her only response being that she and the decedent "had lived together at the farm." A death certificate was issued thereafter which recited that the decedent was "never married." Finally, there was evidence that the decedent on various occasions, the last being three days before his death, had told a friend that he and Yoder did not intend to marry.' One who reviews the record of the hearing before the Register of Wills must of necessity conclude that Yoder's evidence of a civil contract of marriage was inadequate to withstand close judicial scrutiny. Her evidence failed to show either constant cohabitation or a general reputation that she and the decedent had been married. The evidence which she offered, moreover, was sharply contradicted by statements and conduct of Yoder herself. At best, it can be said that her evidence of a common law marriage was inconclusive. Therefore, her claim that she was entitled to receive letters of administration as the widow of the decedent was not clearly established. 1 There was also an offer to prove that Yoder had represented herself to be a single woman when she applied for public assistance and that she had never advised the Department of Public Welfare that her status had changed. For reasons which we are unable to comprehend, the Register of Wills refused to receive or consider evidence of admissions made by Yoder in her application for public assistance. -7- . . 21-03-1065 ORPHANS' COURT DISCUSSION Barth argues in her brief: In the instant case, ample evidence was presented to the Register of Wills to support the decision. An Affidavit of Common Law Marriage was presented. Testimony of Elizabeth Barth as well as family and friends was likewise presented. Cards and letters were presented as exhibits which supported the common law marriage. While, the Brief of Petition [sic] cites contrary evidence, this is not enough to support reversal. Only a clear abuse of discretion would justify a finding contrary to the Register. It is submitted that evidence submitted clearly supports the Register's decision. The Judicial Code at 42 Pa.C.S. Section 61 05(a), provides: General rule.- The official acts, protests and attestations of all notaries public, certified under their respective hands and seals of office. . . may be received and read in evidence, as proof of the facts therein stated. Any litigant may be permitted to contradict by other evidence any such certificate. (Emphasis added.) In Bell v. Ferraro, 849 A.2d 1233 (Pa. Super. 2004), the Superior Court of Pennsylvania 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. 961 05(a). In the case sub judice, Barth testified that the purpose of the notarized Affidavit of Common Law Marriage executed on April 8, 2002, was to secure health care for Gross because they "were drowning in medical debt." There were no occasions before or after that date that Barth and Gross held themselves out as husband and wife. All other documents and writings they executed or prepared, all sworn testimony in depositions, and the sworn Affidavit of Ramona Gross in her petition for the grant of letters of administration, did not refer to them -8- . . 21-03-1065 ORPHANS' COURT as being married. Barth's own testimony clearly contradicts the assertion in the Affidavit that she and Gross were married at Common Law. Notwithstanding what some people who testified before the Register might have thought, the record is devoid of evidence sufficient to draw a conclusion that there was a reputation of a marriage between Barth and Gross that was broad and general. Accordingly, there is not even a rebuttal presumption of the marriage notwithstanding their constant cohabitation from the early part of 1996 until his death on August 17, 2003. The facts here parallel the facts in In re Estate of Dodge, supra. We find that the Register of Wills abused her discretion in concluding that Barth, as the widow of Gross, was entitled to letters of administration. That judgment was manifestly unreasonable and the law was not applied. Absent a marital relationship with decedent, Barth is a stranger to his estate. Because there are intestate heirs, she is not entitled to letters of administration. Brokans v. Melnick, 391 Pa. Super. 21 (1989). In Estate of Osborne, 363 Pa. Super. 200 (1987), the Superior Court of Pennsylvania stated that, "upon finding that the Register abused its discretion in choosing an administrator, the Orphans' Court may determine the proper individual to act as administrator, and direct the Register to issue letters of administration to that individual." We are satisfied that letters of administration should be issued to petitioner Brian J. Gross.4 Accordingly, the following order is entered.5 4 Decedent is survived by another brother Anthony Gross and a sister Mary Ellen Brouse. His father Anthony Gross is deceased. 5 This resolution renders moot the pending petition of Brian J. Gross to remove Elizabeth Barth as administratrix of the Estate of David M. Gross. -9- . . 21-03-1065 ORPHANS' COURT ORDER OF COURT AND NOW, this rs"-- day of April, 2005: (1) The order of the Register of Wills of Cumberland County denying the petition of Brian J. Gross to revoke the letters of administration to Elizabeth Barth in the Estate of David M. Gross, IS REVERSED. (2) The Register of Wills of Cumberland County IS DIRECTED to revoke letters of administration to Elizabeth Barth, and on petition issue letters of administration to Brian J. Gross. } / /"'1 By the Court, I / r .I_ t J .-<.,' ,/ I ~.. / \.-u-wI Edgar B. Bayley, J. James J. Kutz, Esquire For Petitioner Brian Gross James G. Nealon, III, Esquire For Elizabeth Barth Johnna Kopecky, Esquire For Mary Ellen Brouse and Anthony Gross :sal -10- " V' ~ . . James J. Kutz, Esquire Attorney 10 # 21589 Paula J. McDermott, Esquire Attorney 10 # 46664 Post & Schell, P.c. 240 Grandview Avenue Camp Hill, PA 17011 (717) 731-1970 IN RE: ESTATE OF DAVID M. GROSS IN THE ORPHANS' COURT CUMBERLAND COUNTY, PENNSYLVANIA NO. 2103-1065 PETITIONER BRIAN JOHN GROSS' MEMORANDUM IN RESPONSE TO THIS HONORABLE COURT'S ORDER OF FEBRUARY 14. 2005 TO: THE HONORABLE JUDGE EDGAR BAYLEY I. PROCEDURAL POSTURE OF THE CASE On or about April 20, 2004, Elizabeth Barth, posing as the late David Gross' common law wife, filed a request for Letters of Administration to be issued to her as David Gross' surviving spouse. In response, Elizabeth Barth was appointed Administratrix of the David Gross Estate, although no notice of the request was ever served on Petitioner (a surviving brother) or on decedent's other two siblings. On May 11, 2004, Petitioner Brian J. Gross, one brother of the decedent and son of Ramona Gross, late Administratrix of the David Gross Estate, filed a Petition for Revocation of Letters and Removal of the Administratrix pursuant to 20 Pa. C.S.A. 993155 and 3181. An evidentiary hearing was held on November 22,2004 before Glenda Farner Strasbaugh, Register of Wills of Cumberland County, and Kirk S. Sohonage, Esquire, Solicitor 3Cl , " . . for the Register of Wills. On November 30, 2004, the Register of Wills issued an Order refusing to revoke the letters of administration without opinion or findings. Brian John Gross, Petitioner herein, filed a timely appeal on December 9, 2004. By Order dated February 14, 2005, this Court requested that Petitioner Brian John Gross file a Memorandum setting forth his position 1) as to whether the case should proceed on the Petition for Removal of the Administratrix; 2) if not, whether the Court should take additional evidence on the appeal from the denial of the Register of Wills to revoke the letters granted to the Administratrix. This Memorandum of Law is submitted in response to the Court's Order. 1 II. FACTUAL SYNOPSIS OF THE CASE This case arises from the fraudulent misrepresentation of Respondent Elizabeth Barth that she was the common law wife of the late David Gross. The record evidence in this matter fully establishes that Elizabeth Barth, prior to the death of David Gross in August of 2003, did not hold herself out to be his common law wife. Indeed, the assertion that she was the late David Gross' common law wife was made only after the death of Mr. Gross' mother, Ramona Gross, formerly Administratrix of the Estate. Indeed, as set forth in detail below, Ms. Barth's legal assertion is wholly undermined by her own admissions at trial! The Estate consists of $156,255.26, proceeds of a personal injury action filed by David Gross as plaintiff, and docketed to Dauphin County No. 2601-S-1999. This amount is being held in escrow by Post & Schell, P.c. (the undersigned), pending a determination of the true beneficiaries of David Gross. Elizabeth Barth is an adult individual who currently resides at 165 Cold Springs Drive, Manchester, PAl 7345. (Hearing Transcript, p. 9). Although Ms. Barth claims to have been . 1 Regardless of the Court's ruling on these two issues, Petitioner submits that the record established before the Register of Wills compels the conclusion that Elizabeth Barth clearly was not a common law wife under Pennsylvania law and thus, her appointment was fraudulent. 2 , . . "married" to him, the late David Gross published an announcement of his engagement to Elizabeth Barth in 2000 or 2001 and Ms. Barth confirmed with the newspaper the engagement. (Hearing Transcript, p. 10). Ms. Barth testified that she and David Gross had been engaged forever. (Hearing Transcript, pp. 11-12; Petitioner's Exhibit 1). Ms. Barth also testified that she participated in the preparation of the late David Gross' obituary (Hearing Transcript, p. 12), yet that obituary lists Ms. Barth as David Gross' fiance, and was based upon information given by Ms. Barth to the funeral director. (Hearing Transcript, p. 13; Petitioner's Exhibit 2). Ms. Barth is listed as the "informant" on David Gross' death certificate, yet that document indicates that the late David Gross was divorced. (Hearing Transcript, p. 15; Petitioner's Exhibit 3). Ms. Barth conceded at the hearing that the information on the death certificate is correct. (Hearing Transcript, p. 16). Ms. Barth did not participate as a party in the personal injury action filed by her supposed husband in 1999, captioned, David Gross v. Archibald Builders, Court of Common Pleas, Dauphin Coun~y, No. 2601-S-1999. (Hearing Transcript, p. 17). In other words, she did not make any attempt to make a recovery based upon a loss of consortium claim which would have been supportable if she were David Gross' wife. (Hearing Transcript, p. 17). Ms. Barth met the late David Gross on September 8, 1995. However, neither Ms. Barth nor the late David Gross ever told David Gross' family that they were married. (Hearing Transcript, p. 16). She acknowledged that on the date she and David met, no promises of marriage were exchanged between the parties. (Hearing Transcript, p. 19). Ms. Barth and David Gross moved in together in February of 1996. In referring to February 1996, Ms. Barth testified "we were going to be married." (Hearing Transcript, p. 19). Ms. Barth was unable to identify a 3 . . date in February of 1996 when she and David Gross exchanged promises or agreed they were married. (Hearing Transcript, pp. 19-20).2 Ms. Barth and Mr. Gross never had a ceremony in front ofa Justice of the Peace, a Judge, Rabbi or Priest. (Hearing Transcript, p. 20). Ms. Barth never described David Gross to third parties as her husband, nor did David Gross ever describe her to anyone as his wife. (Testimony of Elizabeth Barth at Hearing; Trial Transcript, pp. 20-21). Indeed, she acknowledged that she and David Gross did not describe themselves to other people as husband and wife. (Hearing Transcript, p. 21). Ms. Barth testified that she and David Gross wanted to have a church wedding. (Hearing Transcript, p. 21). She also testified that the parties talked numerous times about getting married at a Justice of the Peace, but they did not do it. (Hearing Transcript, p. 22). Ms. Barth testified that David Gross referred to her as his "angel." He would say, "there is my angel, but someday I'm going to make it legal. . . you are looking for me to use the words husband and wife and we didn't." (Hearing Transcript, p. 23). In April of 2002, Ms. Barth and Mr. Gross signed an Affidavit of Common Law Marriage, which indicated that they had lived together continuously as husband and wife since March 1, 1996. (Petitioner's Trial Exhibit 4). Ms. Barth admitted that the reason for executing the Affidavit of Common Law Marriage was to secure health care for David Gross. (Hearing Transcript, pp. 24-25). More specifically, she conceded that the Affidavit was filed "because of the financial situation he [David Gross] was in." Id. Further on in that hearing, under . 2 Curiously, although Ms. Barth never testified that she and David exchanged "vows", her lawyer proffered Ms. Barth's good friend and Ms. Barth's mother who conclusorily testified that Ms. Barth told them they had exchanged "personal vows". (Hearing Transcript, pp. 79,97). Such vague testimony, without any specificity or precise timeframe, is hardly competent evidence to overcome the strong presumptions of law which exist in this case. More telling, however, is that Ms. Barth herself never testified that "vows" (whatever they may be) were exchanged. 4 . . questioning from her own lawyer, Ms. Barth stated that "He [David] insisted on it (meaning insisted on signing the Affidavit)...[b]ecause it was one other way to help us monetarily just get through. I mean we were drowning in medical debt." (Hearing Transcript, p. 43). So much for the Affidavit having value to Ms. Barth's contention. Ms. Barth and Mr. Gross filed tax returns as single people. (Hearing Transcript, p. 25). Ms. Barth did not challenge the appointment of Ramona Gross, the late David Gross' mother, as Administratrix of the Estate. (Hearing Transcript, p. 26). After the death of David Gross, Ms. Barth told one Father Wallace E. Sawdy that she was "David's fiance", not wife!. (Hearing Transcript, p. 26). Once while at St. Patrick's Cathedral in New York City, David Gross asked Ms. Barth to marry him in either December of 1995 or January 1996. Ms. Barth acknowledged that the parties were talking about marriage in the future. (Hearing Transcript, p. 27). During the days of Mr. Gross' last illness, Ms. Barth never identified herself to any staff or doctors as Mr. Gross' wife. (Hearing Transcript, p. 27). The late David Gross testified at a deposition on May 12, 2000, in the course of the litigation for his injuries suffered at work. In that deposition, he provided sworn testimony that he was divorced and that that was his first and only marriage. (Hearing Transcript, p. 28). A Christmas card introduced by Ms. Barth at the Hearing in this matter dated Christmas 2001 from the late David Gross to Ms. Barth read, "Dear Angel, Even though you technically aren't my wife yet, try to convince my heart we are not married." (Hearing Transcript, p. 49; Respondent's Exhibit 6). Ms. Barth acknowledged that Ramona Gross, decedent's mother, regarded her as David's girlfriend, and Ramona so testified at her deposition concerning David Gross' personal injury case on November 12, 2003. (Hearing Transcript, p. 52). Petitioner Brian John Gross testified that the family regarded Elizabeth Barth as his brother's girlfriend, not his wife. 5 . . (Hearing Transcript, pp. 54-55). Mr. Gross testified that neither Ms. Barth nor David ever described Ms. Barth to him as David's wife. (Hearing Transcript, p. 55). Respondent presented the testimony of Janelle Augsberger. Ms. Augsberger was aware that Elizabeth Barth and David Gross were planning a marriage ceremony. (Hearing Transcript, p. 79). Ms. Augsberger was unable to specify when she believed David Gross and Elizabeth Barth had exchanged vows, but guessed that it was somewhere in the year 2000. (Hearing Transcript, p. 79-80). Ms. Augsberger was introduced to David Gross somewhere in 1995-96, and was not introduced to him as Elizabeth Barth's husband. (Hearing Transcript, p. 82). Elizabeth Barth and David Gross never told Ms. Augsberger to introduce them as husband and wife. (Hearing Transcript, p. 83). William Dallon's testimony was also presented by Respondent. Mr. Dallon testified that he was never told by either Elizabeth Barth or David Gross that they were married, and it was an assumption on his part. (Hearing Transcript, p. 92). In fact, they were treated the same way as another unmarried couple was treated in a club where Mr. Dallon, Ms. Barth and Mr. Gross were all members. (Hearing Transcript, p. 94). Respondent also presented the testimony of her mother, Suzanne Fern Barth who testified that she had advised Beth and David to go ahead and get married after his accident, but they had not done so. (Hearing Transcript, p. 97). She testified that David Gross had never told her that they had exchanged vows. (Hearing Transcript, p. 97). Suzanne Barth was unable to say when it was that she was told by her daughter that Elizabeth Barth and David Gross had exchanged vows and she gave no specificity whatsoever as to what those vows were. (Hearing Transcript, p. 99). She also testified that she referred to David Gross as her son-in-law because they were living 6 . . together. (Hearing Transcript, p. 99). Ms. Barth was unable to say that she had ever heard Beth describe David as her husband. (Hearing Transcript, p. 100). III. QUESTIONS PRESENTED A. SHOULD THIS COURT TAKE ADDITIONAL EVIDENCE ON APPEAL FROM THE DENIAL OF THE REGISTER OF WILLS TO REVOKE THE LETTERS GRANTED TO ADMINISTRATRIX BY ELIZABETH BARTH WHEN THE RECORD IN THIS MATTER WAS CLEAR THAT THE HONORABLE REGISTER OF WILLS ABUSED HER DISCRETION BY FAILING TO FIND THAT ELIZABETH BARTH HAD NOT SATISFIED HER HEAVY BURDEN OF SHOWING THAT SHE WAS THE COMMON LAW WIFE OF THE LATE DAVID GROSS; OR, IN THE AL TERNA TIVE, SHOULD THE CASE PROCEED ON THE PETITION FOR THE REMOVAL OF THE ADMINISTRATRIX WHEN IT IS CLEAR THAT PURSUANT TO 20 PA. C.S.A. ~3182, THIS COURT HAS EXCLUSIVE JURISDICTION TO REMOVE A PERSONAL REPRESENTATIVE WHEN THE INTERESTS OF THE ESTATE ARE LIKELY TO BE JEOPARDIZED BY HER CONTINUANCE IN OFFICE AND SINCE ELIZABETH BARTH FRAUDULENTLY MISREPRESENTED HERSELF AS THE COMMON LAW WIFE OF THE LA TE DAVID GROSS? Suggested answer: In the affirmative. IV. ARGUMENT A. THIS COURT MAY BUT NEED NOT TAKE ADDITIONAL EVIDENCE ON APPEAL FROM THE DENIAL OF THE REGISTER OF WILLS TO REVOKE THE LETTERS GRANTED TO ADMINISTRATRIX ELIZABETH BARTH SINCE THE RECORD IN THIS MATTER WAS CLEAR THAT THE HONORABLE REGISTER OF WILLS ABUSED HER DISCRETION BY FAILING TO FIND THAT ELIZABETH BARTH HAD NOT SATISFIED HER HEAVY BURDEN OF SHOWING THAT SHE WAS THE COMMON LAW WIFE OF THE LATE DAVID GROSS. Pursuant to 20 Pa. C.S.A. 993155 and 3182, this Court is empowered both to review the Register of Will's decision for an abuse of discretion and to take additional evidence for de novo proceedings; however, here it is unnecessary to take additional evidence since it is clear that the Register of Wills abused her discretion in appointing Elizabeth Barth as Administratrix of the Estate and in refusing to revoke the improperly granted letters. The Petition in this matter was filed under 20 Pa. C.S.A. 93155 to revoke the letters of administration granted to Elizabeth Barth, and pursuant to 93182 to remove Elizabeth Barth as 7 . . Administratrix. Procedurally, these two sections are complementary to one another and provide a full scope for plenary review of the Register's actions by the Orphans' Court Judge, including, if necessary, an evidentiary hearing. In the instant matter, the record is clear that Respondent Elizabeth Barth has failed to satisfy her heavy burden of proving she was the common law wife of the late David Gross. The letters issued to her should be revoked as an abuse of discretion on the part of the Register, and she should be removed as Administratrix of the Estate. The case law is clear that this Court, should it choose, may conduct a hearing and receive evidence to supplement or even supplant the record from the hearing in front of the Honorable Registrar. In re: Estate of Fritz, 798 A.2d 243 2002 Pa. Super. 129 (2002). In Fritz, the Superior Court held that pursuant to 20 Pa. C.S.A. s3155(a), the Register of Wills has a statutory duty to issue letters testamentary. On appeal from the Register's action where additional evidence is not received, judicial review is confined to a determination of whether the Register abused his or her discretion in the issuance of letters testamentary, In re: Estate of Dodge, 361 Pa. Super 188, 522 A2d 77, 78 (Pa. Super. 1987). In the Fritz case, Orphans' Court had found, without conducting an evidentiary hearing, that the Registrar had committed an abuse of discretion. The Superior Court vacated the Orphan Court's Order, remanded the matter to the Register of Wills to grant letters to the proper executor and indicated that a petition could then be filed to revoke the letters testamentary, and an appeal from the granting of the letters could be taken. Superior Court ordered the Orphans' Court to conduct a hearing and receive evidence to determine if the executor appointed had an interest antagonistic to the estate. Fritz, supra. This case is similar in procedural posture to In re: Estate of Fritz, discussed above. This Court not only has the power to review the Register of Wills' decision for an abuse of discretion, 8 . . it is also empowered by Pa. C.S.A. 93182 to review the matter de novo and hold an evidentiary hearing should it wish on any contested issues. This procedure by an Orphans' Court on review of a Registrar's issuance of letters of administration was commended by the Superior Court in Re: Estate of Clink, 743 A.2d 1999 Pa. Super. 309 (1999). In that case, the Orphans' Court made findings following a hearing and review of the record. Clink, supra. The Superior Court recommended this as an appropriate procedure. The Clink Court indicated, "that the selection of the person who is initially granted letters of administration is normally within the province of the Registrar . . . where the Registrar's choice is disputed, that decision may be appealed to the Orphans' Court." Citing, 20 Pa. C.S. 9908(1). Also, citing, Brokans v. Melnick, 391 Pa. Super. 21, 569 A.2d 1373 (Pa. Super. 1999). The Superior Court held that, "Upon finding that the Register abused its discretion in choosing an administrator, the Orphans' Court may determine the proper individual to act as administrator and direct the Register to issue Letters of Administrator to that individual." (Citations omitted). Petitioner is content to have this Honorable Court reVIew the record without taking further evidence unless the Court believes it to be necessary.3 This Court is empowered by 20 PSA 93155 and 20 PSA 93182 to make its own review of the testimony and issue its own findings as to evidence properly admitted in front of the Register of Wills. Although Petitioner believes that such a review would be conducted by this court de novo, Petitioner submits that even under an abuse of discretion standard, the decision of the Register of Wills not to revoke the . 3 As represented previously to the Court, the supplementation would be limited to a review of Social Security records if retrievable and the corroborating evidence of two more of David Gross' siblings that Ms. Barth never held herself out as their brother's common law wife. 9 . . Letters of Administration improperly granted to Elizabeth Barth should be overturned, and Brian John Gross, the brother of the decedent, should be appointed administrator in her place. Many courts, including this Honorable Court, have stated that, "the burden to prove a common law marriage rests on the proponent of the marriage and such claim must be reviewed with great scrutiny." In re: Declaration as to Marriage, in the Court of Common Pleas of Cumberland County, P A, 04-1887, Civil Term, the Honorable Judge Bayley, citing Bell v. Ferraro, 849 A.2d 1233 (Pa. Super. 2004). The Superior Court has stated, "our courts have regarded common law marriage as a fruitful source of fraud and perjury and thus, the law imposes a heavy burden on one who grounds a claim upon the existence of a common law marriage." In re: Cummings Estate, 330 Pa. Super. 255, 265 n3, 479 A.2d 537,542-43, note 3 (1984). This is especially so where the lips of one of the parties to the alleged marriage have been sealed by death. In re: Estate of Glabula, 490 Pa. 535, 540-541, 417 A.2d 168, 171 (1980), precisely the situation now before this Court. The Courts will find a valid common law marriage ifthere is sufficient evidence to prove that it was the parties' intent to enter a marriage relationship in praesenti. In re: Cummings Estate, supra., 330 Pa. Super. 263, 479 A.2d 541. Constant co-habitation of a man and woman together with a general reputation as husband and wife may raise an inference that the parties have contracted a common law marriage. In re: Estate of Garges, 474 Pa. 237, 241, 378 A.2d 307, 309 (1977). However, the facts developed at the hearing before the Honorable Register of Wills clearly indicate that Respondent Elizabeth Barth is not nor ever was married (legally, civilly or under a 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 10 . . some time in the future. Elizabeth Barth was not a common law wife to David Gross and as a result, has fraudulently and illegally taken control of the Estate. Accordingly, she should be removed as the Administratrix of the Estate and the Letters of Administration issued to her should be revoked. The Registrar should be directed to swear in Petitioner, Brian John Gross, decedent's brother, as Administrator of the Estate. It is essential to note that constant co-habitation, 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. Stoddenmeyer, 714 A.2d 106 (Pa. 1998); Estate of Manfredi, 159 A.2d 697 (Pa. 1960). Ms. Barth, as the party with the burden to prove the existence of a common law marriage, 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 and wife be created thereby. Ms. Barth 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. The record in this matter reveals that until David Gross and his mother, Ramona Gross were dead, Elizabeth Barth made no effort to represent herself as the common law spouse of David Gross except, of course, for the health insurance affidavit, which as discussed, supra, was executed for the purpose of helping themselves "monetarily", as they were "drowning in medical debt." In 2000 or 2001, the late Mr. Gross had an engagement announcement published wherein the couple indicated that "they plan a summer 2004 wedding in Harrisburg". (Petition, Ex. ]). Query: If already married by common law, why publish an "engagement" notice. Isn't that backwards? Ms. Barth testified at tria] that she and David Gross had been engaged forever. Ms. Barth acknowledged that she was involved in the preparation of David Gross' obituary which 11 . . stated that she was his fiance. Ms. Barth was listed as the informant on David Gross' death certificate, a death certificate which indicated that David Gross was divorced. Ms. Barth testified that the information on the death certificate was accurate. Ms. Barth acknowledged that she never described herself to David's family as married to David Gross. Ms. Barth did not participate as a Plaintiff in the personal injury litigation filed on behalf of David Gross. Significantly, Ms. Barth was never able to pinpoint a date on which she and David exchanged words in praesenti to establish themselves as common law spouses. She variously identified the date that she considered herself married as September 7, 1995, February 1996 (no particular date was specified) and March of 1996, per the Affidavit of Common Law Marriage. Again, if married in March of 1996, why the subsequent deposition testimony of David Gross to the effect that he was divorced; why the engagement announcement; and why the obituary and death certificate entries? Her mother believed it was sometime in 2000 or 2001. Again, Ms. Barth admitted that she did not describe David Gross to people as her husband and that he did not describe her to other people as his wife. Ms. Barth and Mr. Gross, though living in a meretricious relationship, apparently wanted to have an annulment, then a marriage in the Roman Catholic Church. (Hearing Transcript, p. 21). There were apparently many conversations about just going to a Justice of the Peace to get married, but they decided not to do that. Ms. Barth testified to three occasions in which she and Mr. Gross planned to be married. (Hearing transcript, p. 22). Ms. Barth acknowledged that she and Mr. Gross never used the words husband and wife to describe their relationship. (Hearing transcript, p. 23). In fact, to her credit, she testified both at her deposition and at the hearing, that the Affidavit of Common Law Marriage filed with her employer was filed for financial (not love) reasons, so that Mr. Gross could be added to her 12 . . health insurance. (Hearing transcript, pp. 24-25). It is significant that other than this Affidavit dated April 8, 2002, averring that the parties were married as of March 1, 1996, the late Mr. Gross' placement of the engagement announcement in the summer of 2000 or 2001, and his deposition in his personal injury litigation which was taken in December of 2000, constitute the final words of Mr. Gross that he considered himself divorced and not married. Mr. Barth acknowledged telling Father Sawdy in 2003 that she was David Gross' fiance. She made no effort to administer the Estate of David Gross until his mother, Ramona Gross, unexpectedly died in February of 2004. She further acknowledged that she never told any staff or doctors during the days of Mr. Gross' last illness that she was his wife. (Hearing transcript, p. 27). Ms. Barth's own testimony at the hearing was far from meeting the strict standard of proof which courts accord to claims of common law marriage, particularly when one of the parties is dead. Ms. Barth introduced an unauthenticated Social Security Determination for which no underlying foundation was available. This piece of evidence surely must be rejected by this Court as lacking foundation or authenticity. It is certainly in no way probative of what, if any, investigation the Social Security Administration conducted into this matter or what information Ms. Barth provided to that agency. Ms. Barth also introduced, over objection, some cards allegedly sent to her and Mr. Gross over the years by various individuals. One of those cards, dated December 2001 and introduced by Ms. Barth as R6, read, "Dear Angel, even though you technically aren't my wife, yet, try to convince my heart we are not married." (R6; Hearing transcript, p. 49). Ramona Gross, when asked in her deposition taken November 12,2003, stated Elizabeth Barth was David's girlfriend. (Hearing transcript, p. 52). 13 . . Ms. Barth also introduced three witnesses whose testimony was ambiguous, contradictory and self-serving. Janelle Colleen Augsberger testified that David Gross and Elizabeth Barth said that they had exchanged personal vows sometime in the year 2000. (Hearing transcript, p.79- 80). This testimony was directly refuted by the deposition testimony in 2000 of David Gross that he was divorced and had not subsequently married. Additionally, Ms. Augsberger also testified that neither David Gross nor Elizabeth Barth told her to describe them as husband and wife. (Hearing transcript, p. 83). The testimony of William Morgan Dallon can fairly be characterized as that he acknowledged that he assumed that Elizabeth Barth and David Gross were married, but they never told him that they were. (Hearing transcript, p. 92). Finally, Ms. Barth's mother, testified that Elizabeth Barth and David Gross would talk about getting married. (Hearing transcript, p. 96). She indicated that they did not get married because they wanted to wait for a church wedding. (Hearing transcript, pp. 96-97). Although she testified that Elizabeth Barth told her that they exchanged vows, she was unable to pinpoint a date or time in which this happened, or specify what those vows were! (Hearing Transcript, pp. 97-98). She also admitted that only because they were living together, she referred to David as her son-in-law. (Hearing transcript, p.99). The only element of those required to establish a common law marriage proven by Ms. Barth and other witnesses' testimony was constant co-habitation. Ms. Barth failed to prove an exchange of words in praesenti with the intention of being married, as she additionally failed to prove any reputation in the community, or that she and Mr. Gross held themselves out in the community as husband and wife, or that they had any such reputation. 14 . . Cases involving issues relating to common law marriage and administration of estate are strikingly similar to the instant case. In In Re: Dodge, the Register of Wills had issued letters of administration to a purported common law spouse. The Register found that common law marriage existed, and denied a Petition to Revoke the Letters of Administration. An appeal was then taken to the Orphans' Court, which determined that the Register of Wills abused her discretion when she refused to revoke the letters of administration previously granted. The Court found that the evidence was insufficient to prove a common law marriage. As in the instant case, the relationship between the decedent and the purported common law wife in the Dodge case was meretricious. As here, whatever slight evidence may have been presented by the purported common law spouse was distinctly contradicted by the evidence of record. Here, the evidence against Ms. Barth can mainly be found in documentation and her own testimony. Whether this Court elects to review this matter on an abuse of discretion standard or de novo, the Court is clearly empowered to and should determine that there was no common law marriage here, should exercise its unquestionable authority to determine the proper individual to act and direct the Registrar to issue letters of administration to that individual. Estate of Osborne, 363 Pa. Super. 200, 525 A.2d 788 (Pa. Super. 1987). Finally, it should be noted that the evidence in this matter is no more compelling than in the Ewing v. Ickes case, docketed to 04-1887 in the Court of Common Please for Cumberland County, decided by this Honorable Court on September 2, 2004. In that instance also, an affidavit of common law marriage was filed and the proponent of the marriage presented self- serving testimony from her mother that she considered the opponent of the marriage her son-in- law. Similarly to the instant case, the parties acknowledged that the Affidavit of Common Law Marriage was used solely to procure health insurance. Every other document executed or word 15 .' . . spoken by the parties over the years identified them as single persons as do all statements admitted at the Hearing before the Register of Wills and acknowledged to be authentic even by Elizabeth Barth. Although David Gross is not here to testify before this Court, other than his affixing of his signature to an Affidavit which was admittedly filled out, not for love, but for "financial" reasons, the last two acts ofMr. Gross of which there is a record, are his placement of the engagement announcement in The Patriot News in the summer of 2000 or 2001 stating that the couple planned a 200~ wedding, and his statement at his deposition in May of 2000 that he was divorced and had never been remarried. These facts are fatal to Respondent's claim. And, if that is not enough, Ms. Barth's own judicial admissions that she helped with both the obituary notice and the supply of information on the death certificate which she admitted was "accurate", yet neither document identifies her as the spouse of the deceased, and even told a priest after David's death that she was "David's fiance" (not wife), renders absurd and arbitrary a finding that she was the lawful wife of Mr. Gross. In Jewelcor Jewelers v. Corr, 373 Pa. Super. 536, 542 A.2d 72 (1988), our Superior Court aptly summarized the law regarding judicial admissions by a party and that party's obligation to be bound thereby: A judicial admission is an express waiver made in court or preparatory to trial by a party or his attorney, conceding for the purposes of the trial, the truth of the admission. It has the effect of a confessory pleading, in that the fact is thereafter to be taken for granted, so that the opposing party need offer no evidence to prove it and the party by whom the statement was made is not allowed to disprove it. (citing, 9 Wigmore, Evidence 9 2488). 542 A.2d at 72. Ms. Barth is bound by her admissions. 16 ,. . . v. CONCLUSION For all the foregoing reasons, it is respectfully requested that this Court sign an Order in the form attached, directing the Register of Wills to revoke the Letters of Administration granted to Elizabeth Barth, and to issue Letters of Administration to Brian John Gross, brother of the decedent, David Gross. Respectfully submitted, POST & SCHELL, P.c. Attorneys for Petitioner, Brian J. Gross Date: February 25,2005 17 . . CERTIFICATE OF SERVICE I, James 1. Kutz, Esquire, do hereby certify that on the date set forth below, I did cause to be served 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 241 I North Front Street Harrisburg, PAl 711 0 The Honorable Edgar B. Bayley Cumberland County Court of Common Pleas One Courthouse Square Carlisle, PA 17013-3387 POST & SCHELL, P.c. Date: February 25, 2005 ~~l~::;~ "\ ' . . IN RE: ESTATE OF DAVID M. GROSS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 21-03-1065 ORPHANS' COURT AND NOW, this ORDER OF COURT " ~+-- day of February, 2005, IT IS ORDERED: (1) All issues on the motion of Brian John Gross for sanctions are moot except that it is directed that the Executrix shall make another attempt to obtain from the Social Security Administration the records pertaining the application of Elizabeth Barth which resulted in her being awarded social security as the surviving spouse of David M. Gross. Particular emphasis shall be made in obtaining from the records the representations that were made by Elizabeth Barth as to the date and circumstances of her claimed marriage to David M. Gross. (2) The hearing scheduled for February 25, 2005, is cancelled. (3) Counsel for Brian John Gross shall file a memorandum in chambers by February 25, 2005, with a copy of opposing counsel, setting forth his position (1) as to whether the case should proceed on a petition for the removal of the Executrix, (2) if not, whether the court should take additional evidence on the appeal from the denial of the Register of Wills to revoke the letters granted to the Executrix. (4) Counsel for the Executrix shall file a response memorandum in chambers not later than March 11, 2005, with a copy to counsel. (5) Argument shall be conducted in chambers on Friday, March 18, 2005, at 4:00 p.m. "'If 3 <0 ~l' 'Y ' . ~, . James Kutz, Esquire For Brian John Gross James Nealon, III, Esquire For Executrix Elizabeth Barth Johnna J. Kopecky, Esquire For Mary Ellen Brouse and Anthony Gross :sal (Y\111 L(j) 2 J 4 0 5 ,j)l1VjES ~ l1itON E~Q 'J JoHNNA kDVuk~, [~l,) ~~L) ~llL E0~ _ ()~ ur r J lAD (IL t' t\u~ cDE'D y~ ~ . . ,; ,. c. ~ ~- . . James J. Kutz, Esquire Attorney I.D. # 21589 Post & Schell, P.C. 240 Grandview Avenue Camp Hill, PA 17011 (717) 612-6038 E-mail: ikutz@postschell.com IN RE: ESTATE OF DAVID M. GROSS IN THE ORPHANS' COURT CUMBERLAND COUNTY. PENNSYLVA.NIA NO. 2103-1065 PRAECIPE FOR ENTRY OF APPEARANCE Please enter the appearance of James J. Kutz, Esquire as co-counsel for Petitioner, Brian J. Gross. POST & SCHELL, P.C. ~J)' / L \ '.'(" ~ ,'7/1. '" ,\ I"" .." .- -'_-\.... i ,- " JAME~KUTZ, ESQUIRE'-..J Attorney I.D. # 21589 240 Grandview Avenue Camp Hill, PA 17011 (717) 612-6038 Attorneys for Appellant/Petitioner, Brian John Gross Date: February 2, 2005 C:.J ;y... 3/ . . CERTIFICATE OF SERVICE I, Denise L. Huber, an employee 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: Johnna J. Kopecky, Esquire Shagin & Anstine, LLC 300 North Second St., 8th Floor P. O. Box 1225 Harrisburg, PA 17108-1225 Denise L. Huber Date: February 2, 2005 . . IN RE: ESTATE OF DAVID M. GROSS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 21-03-1065 ORPHANS' COURT ORDER OF COURT AND NOW, this 2-9 day of January, 2005, a hearing shall be conducted in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania at 11 :00 a.m., Friday, February 11,2005, on the issue of whether requested sanctions for the failure to respond to discovery reque~.ts-~Id be granted. /,0/ By the. Court, \.. /> L .'~ ~/. /~.. " Edgar B. Bayley, J. '~- Paula J. McDermott, Esquire 'for Brian John Gross James Nealon, III, Esquire f-"0,r Executrix Elizabeth Barth Johnna J. Kopecky, Esquire For Mary Ellen Brouse and Anthony Gross :sal ,. ,,;' \llf\llflY 131. 05 ~llLA II \e Dt'R!\\CIT t.~~ ~A1llFS Nidt-lLtJ -1U=;L\Lo.. . ^ . 0CH N I\JI~ KL el:LV-" , CSl" f\ t:N v' ..V KG ti iI)U) 5 ~ 0ltNf-\j)f\ \/ Lll { . 36 \~ . . IN RE: ESTATE OF DAVID M. GROSS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 21-03-1065 ORPHANS' COURT ORDER OF COURT AND NOW, this z-~. day of January, 2005, IT IS ORDERED that a hearing shall be conducted on the issue of whether Elizabeth Barth was the common law wife of the late David Gross, and thus, properly granted Letters of Administration in his estate, in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania at 1 :30 p.m., Friday, February 25,2005. I By the Court, // ,/" Ed9~;e. B~le~\.~~' ~l Paula J. McDermott, Esquire For Brian John Gross \ James Nealon, III, Esquire For Executrix Elizabeth Barth ") Jorrnna J. Kopecky, Esquire F6r'Mary Ellen Brouse and Anthony Gross :~aJ rV1AlkEl) 1.31,05. VALtU4- n'~~~~llcrrlL5..L -_, . SltnIE~J NI:1tLLN lI[ w b:. . -Je/ ~ N j\j A- ((C PEL K Y i DC "l2NV .~RCV' DE']) Bll JLcD6E :(j')\.fIT-Y . 35 ~LL . INDEX TO WITNESSES WITNESS Elizabeth Barth (as on cross) Cross-examination by Ms. McDermott Direct examination by Mr. Nealon Recross-examination by Ms. McDermott Brian Gross Direct examination by Ms. McDermott Cross-examination by Mr. Nealon Cross-examination by Ms. Kopecky Janelle Colleen Augsburger Direct examination by Mr. Nealon Cross-examination by Ms. McDermott Cross-examination by Ms. Kopecky William Morgan Dallam Direct Examination by Mr. Nealon Cross-examination by Ms. McDermott Cross-examination by Ms. Kopecky Suzanne Fern Barth Direct examination by Mr. Nealon Cross-examination by Ms. McDermott INDEX TO EXHIBITS FOR THE PETITIONER IDENTIFIED 1 - Engagement announcement 10 2 - David Gross's obituary 12 3 - Death certificate 13 4 - Affidavit of common law marrlage 23 5 - Testimony 6 - Deposition of Ramona Gross FOR THE RESPONDENT 1 - Card - Ramona Gross to Elizabeth 37 2 - Stephenson's Flowers card 38 3 - Card - Danielle Brouse to Eliz. 40 4 - Card - Danielle Brouse to Eliz. 40 5 - Card - Mom & Dad to Eliz.& Brian 41 6 - Photocopy of card David to Eliz. 41 7 - Social Security letter 45 8 - Card - Bill Barth to David 47 . PAGE 9 29 48 53 55 71 76 82,85 84 86 91 93 95 98 2 ADMITTED 53 53 53 53 53 53 53 53 53 53 53 53 53 53 . . 1 Monday, November 22, 2004 2 Fifth Floor Hearing Room 3 MRS. STRASBAUGH: Good afternoon. I am 4 Glenda Farner Strasbaugh, the Register of Wills here in 5 Cumberland County. This time and this place has been set 6 for a hearing for us to consider revoking Letters of 7 Administration in the Estate of David Gross, which is number 8 21-2003-1065. 9 On April 20, 2004, upon presentation of 10 evidence suggesting a common law marriage, the Register of 11 Wills issued Letters of Administration DVN to Elizabeth 12 13 Barth. On May 11, 2004, the decedent's brother, 14 Brian Gros~, petitioned this court alleging that Elizabeth 15 Barth is not entitled to Letters of Administration in that 16 she was never the common law spouse of the decedent. 17 All parties are present including the 18 petitioner, Brian Gross, represented by Paula McDermott, 19 respondent, Elizabeth Barth, represented by James Nealon, 20 and Johnna Kopecky is here today representing the siblings 21 of the decedent. 22 Each party will be given the opportunity to 23 make a two minute opening statement. The petitioner will 24 then proceed with whatever testimony he desires with each 25 party having the opportunity to cross-examine. 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . Once petitioner completes his presentation, the respondent may present testimony with each party having the opportunity to cross-examine. Each party will then have the opportunity to present a two minute closing statement. The Rules of Evidence shall apply, but may be relaxed, and courtroom decorum will be expected. A decision will be issued and sent to all counsel of record. My solicitor, Kirk Sohonage, shall conduct the hearing at this point. MR. SOHONAGE: Good afternoon. As Ms. Farner Strasbaugh indicated, the Rules of Evidence will apply. There are some issues, of course, with hearsay and lack of authentication which I am sure will arise. I would simply ask that counsel note your objection for the record, the nature of your objection, so it can be dealt with at a later time. Having said that, again, we will appreciate courtroom decorum at this point. Ms. McDermott, you can proceed at this time. MS. McDERMOTT: Thank you, sir, and Mrs. Farner Strasbaugh. We filed a petition both for revocation of letters and removal of the administratrix of this estate on the basis that she has fraudulently and illegally taken 4 1 2 3 4 5 6 7 . . control of the estate by claiming that she 1S the cornmon law wife. As I am sure you know, the burden of proving a cornmon law marraige rests on the proponent of the marriage, and it is a very heavy burden which the court has to be looked at with strict scrutiny. The reasons for that are really matters of cornmon sense. In this case, probably 8 provides as good an example of why courts for several 9 hundred years have looked on these things with disfavor. 10 We have a decedent now. He is not in a 11 position to contest what she is saying. There is ample 12 opportunity for fraud. 13 What is at issue is funds which are from a 14 personal -- the fruits of a personal injury suit which has 15 been settled in Dauphin County, which we will get into 1n 16 testimony later. 17 But what you are going to hear is that there 18 has been no -- there was no way that these two ever held 19 themselves out as husband and wife in the way required by 20 the case law. There is no way that there was a general 21 reputation that they were married. They lived together. 22 They had whatever relationship they had. But that is not 23 sufficient under the law of Pennsylvania to make someone a 24 cornmon law spouse. 25 You are going to see that she, the respondent 5 . . 1 here, was involved in preparation of an obituary, she called 2 herself the fiancee. And there is numerous written 3 documentation to substantiate that during his life, during 4 the late Mr. Gross's life, no one ever considered them 5 6 7 8 9 10 11 common law spouses. Thank you. MR. SOHONAGE: Mr. Nealon. MR. NEALON: For the record, you mentioned that Ms. Kopecky represents the siblings. I just want to clarify that she is here for the two other siblings, Mary Ellen and Anthony, so that there is no confusion later. I don't want to have to do this again. So that all parties of 12 interest are here. 13 As you are well aware, there is series of 14 case law that talks about establishing a common law 15 marriage. And I will submit to you it can be done in one of 16 two ways. One is by proof of exchanging words in the 17 present tense of wanting to be husband and wife, and the 18 second is by cohabitation and reputation. We believe that 19 on both fronts we are going to be able to prove that 20 Elizabeth Barth was the common law spouse of David Gross. 21 As to the first one, exchange of words in the 22 present tense, we are gOlng to submit to you the common -- 23 the affidavit of common law marriage clearly signed by both 24 parties expressing a desire to be husband and wife. 25 Ms. McDermott has cited a case from Judge 6 . . 1 Bayley which said that that isn't an irrebuttable 2 presumption. But that case lS an important distinction 3 between what we have in here and in that case. In that 4 case, the purported husband walked into court and said that 5 was only for purposes of health interests. He took an oath 6 to that effect and specifically attacked the affidavit. I 7 don't think there will be any testimony attacking the actual 8 affidavit. 9 What you have here is a situation of two 10 people that were in love, that had planned to get a formal 11 marrlage. However, things got sidetracked. There was a 12 very serious accident and an illness that follcwed. They 1 ~ ~J planned and re-planned a formal ceremony, simply to validate 14 their marriage and to have a celebration for friends and 15 relatives. But in behind closed doors and to friends and 16 family, they had expressed their desire to be husband and 17 wife. This thing was just gOlng to be a validation and a 18 2elebration for friends and family. 19 We are going to present to you cards and 20 letters from both sides, from the Gross family to Elizabeth 21 calling her daughter-in-law, from the Barth family to David 22 calling him son-in-law or brother-in-law. We are going to 23 present testimony from a friend who will say she introduced 24 them as husband and wife to other people. So that we will 25 have the testimony under either standard. 7 10 11 12 13 14 15 16 17 18 . . 1 2 3 4 5 6 7 8 9 What we submit to you happened here was that there was an intent to be common law spouses, but with a formal ceremony to validate that for friends and family. It doesn't change this, there was a common law marriage here. MR. SOHONAGE: Thank you, Mr. Nealon. Ms. Kopecky. MS. KOPECKY: As was stated previously, I represent the interests of Mary Ellen Brouse and also Anthony Jerome Gross. They are in agreement that Elizabeth Barth was not a common law marriage -- in a common law marriage or relationship with their brother, David Gross. They treated her as a fiancee. They are in agreement that the letters should be revoked and issued to their brother, Brian Gross. Thank you. MR. SOHONAGE: Ms. Kopecky, are your clients here today? MS. KOPECKY: No, they are not. THE COURT: Any parties or any witnesses who 19 will be presenting testimony at this time? Mr. Nealon, you 20 indicated you had other witnesses. 21 MR. NEALON: We have several outside. We can 22 bring them In as they testify. 23 THE COURT: Let's bring everybody in now and 24 we will give one oath. 25 MR. NEALON: There ~ay be one more on the 8 . . 1 2 way. So I apologize. (Whereupon, all witnesses were given oath.) 3 MR. SOHONAGE: You can resume your seats out 4 in the hallway. Thank you. Ms. McDermott, you just have 5 the one witness. 6 MS. McDERMOTT: Actually we have two. We are 7 gOlng to call Elizabeth Barth as on cross first. 8 MR. SOHONAGE: Okay. 9 Whereupon, 10 ELIZABETH BARTH 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 called as a witness as on cross-examiration having been duly sworn, testified as follows: EXAMINATION BY MS. McDERMOTT: Q Ms. Barth, could you please state your name and address for the record, please? A Elizabeth Barth. 165 Cold Springs Drive, Manchester, Pa., 17345. Q And, Ms. Barth, you are here today since you have taken out letters claiming that you are the common law spouse of the late David Gross, is that right? A That is right. Q I am going to show you a document which I would like to have marked as Petitioner's 1. (Whereupon, 9 . . 1 Petitioner's Exhibit No.1 2 was marked for identification.) 3 BY MS. McDERMOTT: 4 5 6 ., I 8 newspaper. 9 10 in? 11 12 Q Can you identify this document? A Yes ma'am. Q What is this? A It's our engagement announcement in the Q Okay. And what newspaper was that published A The Patriot News. Q All right. And what were the circumstances 13 under which that engagement announcement was peblished? 14 15 actual ring. 16 17 18 19 A David finally had enough money to buy me an Q When was that? A 2000 or 2001. I cannot remember. Q Okay. A And he was so proud of that, he actually put 20 this ad in the newspaper. And they called me to verify that 21 it wasn't a fraud. Because men usually don't advertise. 22 And I had to confirm that he indeed did place this ad. 23 Q This engagement announcement indicates you 24 and the late David Gross were engaged, correct? 25 A Correct. 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . fiancee, Q And it refers to the late David Gross as your is that correct? A Correct. Q And did you ever file a correction to this announcement? A In what respect? Q Well, if you are claiming that you were married to the late David Gross, then why was an engagement announcement published? A We wanted a church ceremony. Then we would have had our wedding announcement for family and friends. Q Okay. You were aware of this newspaper article A Yes, ma'am. Q when it was published, and you are aware that it refers to David as your fiancee, is that correct? A Yes, ma'am. Q All right. I am going to ask you, do you recall glvlng a deposition at my office? A Yes. Q And that would have been on August 13, 2004. On that occasion, did you testify that you were engaged to the late David Gross? A Yes. Q Okay. In particular, ln response to my 11 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . 1 questioning, (Reading) This announcement says you are 2 engaged. Your answer: Yes. My question: Was that accurate? Answer: Yeah, we had been engaged forever. A Is that the testimony you gave? Yes. MR. NEALON: What page are you on? MS. McDERMOTT: 58. (Whereupon, Petitioner's Exhibit No.2 was marked for identification.) BY MS. McDERMOTT: Q I am going to ask you about another document, which we will ask to be marked Petitioner's 2. I am going to ask you to identify this document for the record. A Yes. Q All right. And what is this? A David's -- David's obituary. Q All right. And were you involved ln the preparation of this obituary? A We all were. Q A All right. The funeral I'm sorry. Q Go ahead. You were involved with the funeral director in the composition of this? A He basically prompted us as to what, how 12 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . 1 2 these things go. I had never written an obituary before. Q Okay. And the obituary indicates in 3 paragraph one, two, three, four, that you were the late 4 David Gross's fiancee, doesn't it? A Correct. Q All right. Was that the information you gave to the funeral director? A Yes. (Whereupon, Petitioner's Exhibit No.3 was marked for identification.) BY MS. McDERMOTT: Q All right. I am going to ask that this next document be marked Petitioner's 3. I am going to ask you if you can identify this document for the record. A Yes. Q Okay. And what is this? A David's death certificate. Q All right. And was this prepared based upon information that you gave to the funeral director? A No. This was prepared by the doctor. I saw this when it was given to me, twenty copies were given to me by the funeral director after David's funeral. This was prepared in the hospital. given my copies. I never saw this until I was 13 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . 1 Q All right. You are listed in the death 2 certificate, if you look, as the informant for the death 3 certificate under line 20-a, isn't that correct? A Q A Q 20-a? That is about seven lines down -- Yes, ma'am. -- on your left. You are listed as the informant? A Q Yes. Okay. A There was so much -- my name was over everything in all of David's hospital records. For all of his major decisions, everything from doctors to medicine to POA to last wishes to you name it. I pretty much handled his care after his first initial accident in '98. Q Okay. And this document indicates, for which you are listed as the informant, indicates that the late David Gross was divorced, doesn't it? MR. NEALON: Object at this point that they haven't laid a foundation for this. Unless she said that she provided the information for it, I don't think you can get it into evidence this way. MR. SOHONAGE: We will note your objection for the record. The document does speak for itself, but we will allow questions on this. 14 10 . . 1 2 3 4 BY MS. McDERMOTT: Q Why do you think you were listed as the informant on this document? A As I said, everything In regard to David's 5 medical records had my name allover it. I was the contact. 6 I provided all of his medical information. I was -- I 7 worked with the doctors and the nurses on his medicines, his 8 care prior to and during his stay. He was very complicated 9 medically speaking. Q And this document for which you are listed as 11 the informant indicates on line 14 that the late Mr. Gross 12 was divorced, doesn't it? 13 A Correct. He was divorced a decade earlier. 14 15 16 17 18 19 20 21 22 23 24 25 Q Okay. Why wouldn't it indicate that he was married? A We wanted a church service. Q Do you recall in that deposition taken in my office when we looked at the death certificate, do you recall being questioned about it? A Yes. Q All right. MR. NEALON: And I asked you Could you tell me what page you are at? MR. BRIAN GROSS: BY MS. McDERMOTT: 67. 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . Q Is the information on the death certificate, to the best of your knowledge, accurate? A Yes. Q A Q A Q And you answered yes, is that correct? Correct. Is it accurate that he was divorced? Yes. Now, I'll ask you a couple of other questions. married? Did you ever tell David's family t~at you were A Q They actually told us. Not my question though. Did you ever tell David's family that you were married? A No. Q Okay. When you were first introduced to David's family in 1995, did you tell them you were married? A Q No. All right. How did you introduce yourself to the family members? A In 1995? Brought me home for Thanksgiving di~ner, and this is my new friend, Beth. Q Okay. I think you just indicated that there never did come a point when you described yourself to David's family as married, is that right? A It would insult them. 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 . . Q Now, did -- are you aware -- are you aware of a personal injury action that is filed in Dauphin County? A Q Yes. Okay. And that action, for the record, is David Gross vs Archibald Builders, Court of Common Pleas, Dauphin County, Number 2601-S, 1999. You are aware of that litigation? A Yes. Q You were aware that that was being filed, weren't you? A Q Yes. Okay. Now, you are not listed as a plaintiff In that action, are you? A No one was other than David. Q Okay. So you have not attempted to make a 16 recovery in that litigation on the basis that you were David 17 Gross's wife, have you? 18 A I was -- could you please repeat the 19 question? I don't want to 20 Q You are not listed In that Dauphin County 21 action as a plaintiff -- 22 23 24 25 A Correct. Q -- on the basis that you are David Gross's wife, is that right? A Correct. 17 4 5 6 7 8 9 10 . . 1 Q Okay. And you never raised the lssue that 2 you should be included in that litigation, did you? 3 A Yes, I did, with his Attorney Eisenberg. Q When was that? December, A And he -- this was after David's death In roughly, and he said that it was -- Q I move to strike whatever he said. MR. NEALON: No, it's responsive to the question. MS. McDERMOTT: No, it lS not. I asked if 11 she -- 12 13 14 15 16 17 18 19 20 21 22 23 24 25 objection. MR. NEALON: She asked why. MR. SOHONAGE: I am going to sustain the Let's not get into any of this oral hearsay. I mean the documents are bad enough I think, but I will sustain your objection. Just ask another question. question. THE WITNESS: May I answer? MR. SOHONAGE: No. She will ask you another I mean the door has been opened I think, and if cross-exam opens it and you want to question on it, that is probably coming in. BY MS. McDERMOTT: Q All right. of 1995, is that correct? A Yes. Now, you met David cn September 8 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . Q And is that the date that you contend that you and David became common law spouses? A That was the day we celebrated every year as our anniversary. Q All right. Does that mean that on that date you exchanged some sort of promises and indicated you were married? A Not that first day, no. Q Okay. Now, I believe you have testified previously that you moved in with David in February of '96, is that correct? A He actually moved in with me, but, yes, we started living together in February. Q All right. And is it ln February of 1996 that you contend that you and David became common law spouses? A Pretty much. We just felt each other as husband and wife almost from the beginning. I couldn't say on September 7th, but it was just he we, we knew we were going to be together. We were going to be married. We had already started talking about planning our wedding, yes. I let him live with me. Q Was there a particular date in February of 1996 that you regarded as a date on which you and David either started talking about marriage or became married? 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . A It was just -- it was from almost the No. time we met. I mean we just knew we were going to be married and we were just progressing with our lives to get the money together to have a wedding, to have a home. Q Okay. Now, you and Mr. Gross never had a ceremony in front of a justice of the peace or a judge or a rabbi or a priest or anything like that, did yeu? A Correct, no, we did not. Q All right. And when I asked you at your deposition as to when you had gotten married and this would be on page 27, actually pages 26 to 27 you indicated in response to my question, (Reading) Legally we did not have a legal ceremony. Question: Right. However, we had been married to each other since the day we met. Question: So that would be in September of '95. And your answer was to nod your head. Whom did you and David over the years tell that you were married? Answer: Everyone knew us to be represented as David and Beth. It was just waiting for money to have an official wedding ceremony so everyone could have a big party. I could walk down the aisle in a big dress and we could just celebrate. Question: Did you describe David to people as your husband? Answer: In honesty I always said, this is my David. That is all we ever said, this is my David. I 20 1 2 5 6 7 8 9 10 11 12 13 14 15 16 . . mean he was just, he was my love. Question: Do you recall David describing you 3 to other people as his wife? Answer: He always said, this 4 lS my angel. Is that testimony correct? A Yes. Q So you and David did not describe yourselves to other people as husband and wife, isn't that correct? A Correct. Q And I believe you testified that you were introduced to Mr. Gross -- to the late David Gross's family as his girlfriend? A Yes, at Thanksgiving. Q Okay. All right. And that was In 1995? A Q Correct. Now, I think that you have previously 17 testified that you and David thought about going to a J.P. 18 to get married, is that correct? 19 A We thought about it? No, we didn't really 20 give it a lot of thought. We -- he wanted to have an 21 annulment -- he was very Catholic, and his family, devout 22 Catholic, wanted to have an annulment and then be married in 23 the Roman Catholic Church and have a church wedding, Mass, 24 and have all of our family and friends there and have a 25 ceremony with God. 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . Q Okay. All right. Now, you did indicate you recall that deposition. Do you recall saying on page 29, (Reading) so you guys didn't -- Question: So you guys didn't ever tell David's mother you were married? Answer: Well, I mean we didn't come out and say this lS my husband and wife. I mean it was just everybody knew all we needed was money and we could have the ceremony before God. He needed to get his anulment through the Catholic Church. We wanted to get married in the Catholic Church. There were many times we talked about just going to a J.P. and I just didn't want to do that. We waited so long, why not continue to wait and just do it right. You recall giving that testimony? A Q A Q Yes. And was that accurate testimony? Yes. Okay. Now, I think -- I think you have indicated in previous testimony that there were numerous occasions on which you and Mr. Gross planned to be married, is that correct? A Yes. Q How many occasions were there In which you planned to be married? A Q Three. All right. When were those? 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . A In '96, '97, we -- I broke my foot so we had to retract our deposits to the church and the D.J. and the reception. In '98, when I was released from my foot surgery and incident, then he had his accident, so then we had to pull that one. And, again, I don't know, roughly 2000, when one of his surgeries, and then he ended up needing a -- I can't remember now if it was an extra shoulder surgery or foot surgery, and that threw a kibosh in it. Ee also wanted to be able to walk down the aisle and stand there. Q At that same deposition, do you recall my questioning you, on page 31, (Reading) Between 1995 and 2003 when David died, did you and he tell people you were married? Answer: He would use examples. Like we would be at a party or a dinner, he would say, there is my angel, but some day I am going to make it legal, or you will get to come to our big wedding celebration or our party some day. You are looking for me to use the words husband and wife and we didn't. Do you recall giving that testimony? A Yes, I do. Q So you did not use the words husband and wife to describe your relationship, is that correct? A Correct. (Whereupon, Petitioner's Exhibit No.4 was marked for identification.) 23 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . 1 2 BY MS. McDERMOTT: Q I am going to show you a document which is 3 going to be Petitioner's 4, is that right? Can you identify 4 this document? A Q A Q Yes. All right. And what lS this? It's an affidavit of common law marriage. All right. And this document says that we have lived together continuously as husband and wife from March 1 of 1996, isn't that correct? A Correct. We couldn't remember exactly when we moved In. It was the middle of February of '96, so we made it March for this. Q Okay. And David had never been on your health care prior to the filing of this document, had he, for your employment? A No, he had not. Q And this was filed because of the financial situation that David found himself in? A This was a new employer to me, and this would provide secondary to his Medicare, which did net pay very well sometimes. Q All right. And I think you indicated at your deposition that this affidavit was filed, on page 35, Question: And that was because of the financial situation 24 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . 1 he was in. Answer: Well, we were in, yes. 2 Is that correct? 3 A Correct. 4 Q And this date of March 1, 1996, lS this a 5 date that you celebrated as an anniversary? 6 A No, we celebrated our -- in September, when 7 we met, as our anniversary yearly. Q A Q All right. Not February of 1996? No. Okay. MR. SOHONAGE: Are you saying September of '96? THE WITNESS: September of '95 when we met. Excuse me. BY MS. McDERMOTT: Q Now, isn't it true that while you and David Gross were living together your tax returns were filed as single person? A Correct, David stopped filing tax returns in '98. And we had only been together for three years up until that point. He didn't need to file taxes sincE his accident. He was on Social Security disability. Q Okay. Now, when Mr. Gross died, his mother, David Gross, his mother, Ramona Gross, became administratrix of his estate, isn't that correct? 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . A Q A Correct. Why didn't you challenge that? I was unaware of it at first. And then when I was made aware of it, her -- I spoke to her on the phone, and it was just going to work out that she would keep a small portion of the money and she would give rre the rest. Q So you didn't challenge the administration of the estate until after Mrs. Gross was dead, did you? A Correct. Q All right. Did you tell -- do you know a Father Wallace Sawdy? A Yes, I know Father Sawdy. Q And did you tell him that you were David's fiancee? A Q Yes, when I notified him David was deceased. Okay. Why did you tell him you were his fiancee rather than his wife? A Cause he was supposed to be at our wedding. That would have -- he knew that we had not had a wedding ceremony In his church, the Catholic Church. Q All right. Do you recall a trip that you and David took to New York in December of -- or January of '95 or '96? A Q Yes. All right. On that trip, which was in 26 . . 1 January of '95 or '96, do you recall that David asked you to 2 marry him? 3 A Yes. 4 Q So at that point it would appear you weren't 5 married yet, is that right? 6 A Yes. 7 Q Okay. Haven't you previously testified that 8 others in the community considered you, Beth and David, a 9 couple? 10 A Correct. 11 Q Not husband and wife, isn't that right? 12 A Yes. 13 Q Okay. On that occasion, In St. Patrick's 14 Cathedral in either December of '95 or January of '96, isn't 15 it true that you and David were talking about marriage In 16 the future? 17 A Yes. 18 Q Okay. Now, during the unfortunate days of 1 a ~J Mr. Gross's last ill~ess, did you ever identif\ yourself to 20 any staff or doctors as David's wife? 21 A They had known me for years. I have always 22 been Beth. 23 Q But you did not tell anyone you were David's 24 wife, isn't that correct? 25 A No. 27 . . 1 2 3 4 5 6 7 Q Okay. Now, are you aware of sworn testimony that the late David Gross gave on May 12, 2000, in the litigation relating to his injuries at his employer? A Yes. Q Okay. Have you seen the docume~t I have provided to you before? A Yes. 8 Q Okay. Are you aware that at that deposition, 9 that Mr. the late Mr. Gross testified that he was 10 divorced? 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q Yes. Are you further aware that he testified that was his first and only marriage? A Yes. Q That would have been after you moved in together in February of '96, wouldn't it? A Correct. Q And that was also after you met on September 8 of '95, wasn't it? A Correct. Q Okay. I think you have testified that you had the intention to get married in the future. Is that right? A We tried several times. MS. McDERMOTT: I don't have anything 28 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . 1 2 further. MR. SOHONAGE: Mr. Nealon, I understand you 3 are probably gOlng to call her on direct, so unless there lS any objection, why don't you proceed with your direct and follow-up on this as on cross? MR. NEALON: I was gOlng to ask if that was okay. MR. SOHONAGE: Certainly. Just make sure there lS no objection. Do you have any objection as to calling her on direct and then following through? MS. McDERMOTT: No. MS. KOPECKY: No. EXAMINATION BY MR. NEALON: Q Let's do some general background. your date of birth? A February 8, 1969. What lS Q A What is your education backgrourd? High school, trade school, one class at college. Q A Where did you graduate high school? Mechanicsburg Area Senior High School. Where are you currently employed? York Newspaper Company. Q A 29 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . 1 2 3 Q A Q Doing what? I am the classified advertising manager. Some of this has been brought out, but I 4 would like to do some chronology so it is in order. 5 When did you meet David? A Q September 8, 1995. Where -- do you still remember the date you met? A Q A longer there. Oh, absolutely. Where did you meet? Former GTO club in Harrisburg. It was a nightclub. How would you describe your relationship from It 1S no Q the start? A Electric. Q And you said you moved 1n in February of '96? A Correct. Q Okay. Now, when did the accident happen 1n which he was hurt? A September 22, 1998. Q Without going into a lot of detail, can you tell the panel what his injuries were? A His injuries? Q Yes. A He fell 32 feet on to concrete, bounced off 30 3 4 5 6 7 8 9 10 11 12 13 14 . . 1 of his left foot, crushing his calcaneus and multiple bones 2 within that, causing severe fracture blisters, which is beyond a third degree burn, on the surface of the skin. He crushed his pelvis on the right side. Crushed his shoulder. Severe head lacerations. He had memory problems at that point. Concussion. Multiple fractures throughout the rest of his bones. But that wasn't as bad as the foot, shoulder, pelvis and head. Q From the time of his accident up until the time of his death you continued to live with him? A Oh, yes. Q Were you his primary caregiver? A Q Yes. Now, can you tell the panel, you believe -- 15 you believe you had a common law marriage, is that correct? 16 17 18 19 20 21 22 23 24 25 A Yes. Q But yet you have seen these documents, fiancee here, he testified about his -- can you tell the panel the nature of your relationship then? A We were very loving. We just wanted to be married in the church. It was very important to both of us. David was previously married in the Roman Catholic Church and wanted to have that annulled. And he loved me so much he wanted me to have my day where I could walk down the aisle, be a bride, have my friends and family there. 31 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . 1 We tried numerous times to do that, and it 2 was either I broke my foot and we postponed it for a year and a half; two days before -- after I was released and the doctor said, kids, go plan your wedding, it waE a Friday, and on a weekend we went out and we looked at 2 reception hall, and then Tuesday he had his accident. And then it ended up he was very, very messed up. He had almost sixteen major operations. They put him back together like Humpty-Dumpty. And we did not have the money, or the tim€, because he wanted to be able to stand at the end of the church and greet me. He didn't want to be sitting there in a wheelchair. So we had to try and do it between foot surgeries or shoulder surgeries. And in that time my health also deteriorated and I had a few operations. And we just -- we were just holding out until we were well enough and had enough money to actually have a very nice wedding. Q Was there a distinction in the two of your minds between common law marriage and an actual ceremony? MS. McDERMOTT: MR. SOHONAGE: I object to the question. On what grounds? Just speculation? MS. McDERMOTT: Speculation as to what -- I mean I guess she can answer what she thought. It may also 32 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . 1 call for a legal conclusion. 2 MR. SOHONAGE: Why don't you rephrase your 3 question? 4 BY MR. NEALON: 5 Q What was your understanding as to the 6 difference, if any, between a common law marriage and an actual ceremony? A We viewed ourselves as married. We didn't -- all this common law and all this came about after, you know, he deceased and became a matter of money. I mean David and I were married to each other in our hearts. We just wanted a ceremony before God and the family to make it official for everyone to see, for them to say they went to Beth and David's wedding. Q Let's talk about your relationship with some of the family members. A Yes. Q That was David's mother? You knew Ramona Gross? A Correct. Q How would she refer to you? MS. McDERMOTT: I am gOlng to object to that. Ramona Gross is deceased. It 1S hearsay. Not a party. MR. SOHONAGE: Do you have a response? MR. NEALON: 803, 19, representation concerning personal family history. It is an exception to 33 6 7 8 9 10 11 12 13 . . 1 2 3 4 the hearsay rule when the declarant is not available. It applies not only to statements of a person who says they were married or unmarried, but it applies to s~atements of family members regarding that person's marriage, birth, 5 things like that. cases under that. So it is clear under 803 point 19 and the MS. McDERMOTT: 803 point 19. MR. NEALON: Yes. Following statements not excluded even though the declarant is available. We have a long list of things. It is also under 804 point 4, it's admissible as well. MR. SOHONAGE: Ms. McDermott, I am going to 14 overrule the objection, but we will note it for the record. 15 If you have a response, we will put it on the record, but 16 she can answer the question. 17 BY MR. NEALON: 18 19 20 21 22 23 24 25 Q A How would Ramona refer to you? She would tell me she loved me like her own daughter. Q Now, over the years, did you receive cards and letters from friends and family? A Yes. Q Did you review those in preparation for today's hearing? 34 1 2 3 4 5 6 . . A Q A Q A Q Yes. And we didn't bring them all. There is thousands. But we brought samples, is that correct? Correct. I guess, lS this Respondent 1, should we have 7 or Administratrix I? 8 MR. SOHONAGE: We will do it as Respondent 1. 9 MS. McDERMOTT: I would interpose an 10 11 12 13 1_4 15 16 17 18 objection here to the use of any of these documents which have never been properly identified to us, despite discovery questions being asked over the summer as to which documents were going to be used at trial. All we ever got was a bunch of boxes of indiscriminate documents. We still don't know which ones he is going to use. We have no idea who sent them. So I am going for the record to put just a continuing objection to this evidence In, if I could. MR. NEALON: Do you want me to respond? 19 MR. SOHONAGE: We will just note it for the 20 record. Obviously you share the documents before you 21 22 question, but we will allow it to come in. MR. NEALON: For the record, because this may 23 be reviewed on appeal, to be honest with you, based upon the 24 current case law I have looked at, I am not sure if there 25 will be another evidentiary hearing. 35 1 2 3 4 5 6 7 8 9 10 11 12 13 . . So this was discussed in front ~f Judge Hoffer. And we produced these very cards last week in the finite form. We produced a large number that ~hey spent several hours reviewing, and she wanted to know exactly which ones we were going to use as opposed to simply having boxes available. We copied another smaller stack and said these are the ones we are going to use. And she wrote back a letter on November 16 saying I have received your documents, but I am still going to object on hearsay grounds. So it is not accurate to say these have not been identified. MR. SOHONAGE: So the items you are gOlng to 14 question on today have been given for review, is that 15 correct? 16 MR. NEALON: They have been glven as part of 17 an overall set and been given as a part of a specific set. 18 MR. SOHONAGE: Very well. 19 MS. McDERMOTT: So what we are going to see 20 are just the specific ones that were identified. 21 MR. NEALON: Did you get those specific ones? 22 MS. McDERMOTT: Yes. Is that what we are 23 going to see? 24 25 MR. NEALON: For now, yeah. MR. SOHONAGE: We will note your objection, 36 . . 1 Ms. McDermott. 2 MS. McDERMOTT: Okay. 3 4 from -- MR. NEALON: I will get some stickers later 5 (Whereupon, 6 Respondent's Exhibit No.1 7 was marked for identification.) 8 9 objections, certainly note them for the record. MR. SOHONAGE: Ms. Kopecky, if you have any 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 BY MR. NEALON: Q I will show you what has been marked for the record as Respondent's Exhibit 1. Can you identify that, please? A Q A Q A Q A Q A Q Yes. What is that? It's a card from David's mother to me. What is on the front of the card? To a special daughter-in-law with love. Who is it signed by? Love mother and dad. Did that come from Mrs. Gross? Yes. Okay. MS. McDERMOTT: I am gOlng to interpose also 25 a hearsay objection to that too -- 37 . . 1 MR. SOHONAGE: Very well. ? MS. McDERMOTT: -- in that neither Mr. or 3 Mrs. Gross lS here to contest or authenticate that document. 4 MR. SOHONAGE: Very well. Mr. Nealon, a~e 5 you going to make us copies of these? 6 MR. NEALON: I was making them part of the 7 record. If you want I can make a separate copy. 8 MR. SOHONAGE: If you want us to keep the 9 originals for the record, that is fine. 10 BY MR. NEALON: 11 Q Co you recall being in the hospital on this 12 one cccaSlon and receiving flowers? 13 A Yes. 14 Q Let me show you the card. Did ~h2t come fro~ 15 Stephenson's Flowe~s? 16 A Yes. 17 Q Who sent the flowers to you? 18 A Love Mother and Cad Gross. . Q ~~ Q They were sent to you? 20 A Yes. 21 MS. McDERMOTT: Same objection, hearsay. 22 MR. NEALON: I will grant a continuing 23 objection rather than interrupt every time. 24 MR. SOHONAGE: All right. Very well. ~e 25 will nete a continuing objection on hearsay foundation, 38 . . 1 authentication grounds. 2 BY MR. NEALON:. 3 Q Now, are you familiar with the children of 4 Mary Ellen? 5 A Yes. 6 Q What are their names? 7 A One ch=-ld. 8 Q Okay. 9 A Danielle. 10 Q How old is she currently? 11 A Nine rOt:ghly. 12 Q Did y~u receive cards from her throughout the 13 years"? 14 A. Yes. 15 MS. McDERMOTT: Before we get i-to ttese, I 16 know I have a continuing objection, but now we have gone 17 even farther. Now we have a child who is not deceased, who ~ n ..LC cou:j. , , De ~ere to be qlJ.estloned, I suppose, to authenticate 19 these documents, if they really are written by that chlld. 20 And I a~ going to object to anything supposedly signed by 21 Qanielle Gross. 22 MR. NEPi)-,ON: 803 point 19, declarant doesr't 23 h_aVE~ "to be '''' 1'" aVaJ~-,-aD-,-.e . 24 MR. SOHONAGE: Again, we will note your new 25 objection along with your continuing objection, and your 39 . . 1 response, Mr. Nealon. If you can put an R on ~hose 2 exhibits, you are just putting 1, 2, and 3. 3 MR. NEALON: Can you add an R to those? 4 MR. SOHONAGE: Yeah, we did. 5 BY MR. NEALON: 6 Q I will show you what has been marked as R-3 7 and R-4. What are they? 8 A Birthday wishes for my aunt, and this lS from 9 Danielle. 10 Q And 5? 11 A And Uncle David and Aunt Beth from Danielle 12 for Valentine's Day. 13 Q Mr. Gross made a CO:mI:1ent that it doesn't say 14 we are married. But I will ask you, unless yo~ were married 15 to David, Ramona wouldn't call you daughter-in-law, would 16 she? 17 MS. McDERMOTT: -,- obj ect. Speculation. 18 MR. SOHONAGE: We will sustain that 19 objection. 20 BY MR. NEALON: 21 Q Did David send you many cards? 22 A Yes. ~'< L.J Q Let me do one more here. I am going to show 24 you Nhat Ne have marked as R-5. Can you identify R-5 25 please? 40 1 2 Mom and Dad. 3 4 Ramona? 5 6 7 . . A For son and daughter on Valentine's Day, love It is addressed to David and Bet~. Q Okay. That is another card you got from A Ramona. Q Now, did David send you cards as well? A Yes. 8 (Whereupon, 9 Respondent's Exhibit No.6 10 was marked for identification.) 11 BY MR. NEALON: 12 13 14 15 16 17 BY MR. NEALON: 18 Q Show you what we have had marked as R-7. MR. SOHONAGE: R-6 or R-7, Mr. Nealon? MR. NEALON: 6, I'm sorry. MS. McDER!'-':OTT: That one is 6. MR. NEALON: Yes, I'm sorry. I misspoke. Q Let me show you what has been marked as R-6. 19 Is that a photocopy of a card David sent to you? 20 21 22 23 A Yes. Q What 1S the title on the front of the card? A For my wife. Q You were asked some questions about the 24 Petitioner's Exhibit 4, the affidavit of common law 25 marriage. 41 -- ~ 1 2 3 4 . . A Q A Yes. Do you recall that? Yes. Were you -- David was present when he signed Q 5 this -- when you signed this? 6 7 8 9 10 11 12 13 A Q Yes, it is in front of a notary, yes. Were you present when he signed it? A Yes. Q And did David ever have any reservations about signing that? Speculation. MS. McDERMOTT: I am going to object to that. Hearsay. MR. NEALON: I don't think it lS hearsay 14 because, agaln, it is 803 point 19, In other wc,rds, if David 15 made statements I am married, it is an exception. 16 MR. SOHONAGE: You want to rephrase your 17 question. I think the way you asked it may be speculation. 18 But if you can rephrase it, if he made statements or things 19 along this line. 20 BY MR. NEALON: 21 Q Did he express to you that anything in here 22 was not true? 23 A No. 24 Q Did he say I am not signing this? 25 A No. 42 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . 1 2 3 4 MS. McDERMOTT: Same objection. MR. NEALON: They are statements. MS. McDERMOTT: Well, they are hearsay statements. 5 MR. SOHONAGE: We will note the objection. MR. NEALON: If you check, there are exceptions to the hearsay rule. 804 point 4. MR. SOHONAGE: We will allow them. Go ahead. 6 7 BY MR. NEALON: Q Did he say anything to the effect, this isn't true, we can't sign this? A No. Q Now A He insisted on it. Q Why was that? A Because it was one other way to help us monetarily just get through. I mean we were drowning in medical debt. Q Subsequent to the death, did you apply for benefits with the Social Security Administration? A Q Yes. And did you apply for benefits as the widow? Yes. Or as the surviving spouse? A Q A Yes, correct. 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . Q What is your understanding as to the -- what process did you have to go through in order to get to apply for those benefits? A I filled out a serles of paperwork, and then I was asked by the caseworker to provide paperwork to members of his family to testify that we were -- everything that I was saying was true, that we were viewed as living together, that we were cornmon law, that I was the widow and would then be eligible for benefits. Q A Did you provide them names of the siblings? I provided the documents to the siblings and, yes, I did provide them the names. Q Who did you provide the documents to? A Brian and Tony Gross. Q What did you provide to them? A The forms for -- given to me by Social Security that they were to complete on my behalf to testify that what I was saying was true. Q What was your understanding as to what proof you had to provide? A What proof? Q Yes. A I had to -- they were supposed to be my proof that I was telling the truth, and that we lived together and that we were -- there was no separation in our relationship, 44 . . 1 and that I was considered the widow in this. 2 Q Were you ultimately awarded Social Security 3 benefits? 4 A Yes. 5 (Whereupon, 6 Respondent Exhibit No. 7 7 was marked for identification.) 8 BY MR. NEALON: 9 10 Q I am gOlng to show you what has been marked as R-7. I do have an extra copy of this for you. Can you 11 identify that? 12 13 14 A Q A Yes. What 1S that? A letter from Social Security with my 15 bereavement check. 16 MS. McDERMOTT: I am going to object to this 17 as an unauthenticated document, and particularly if it 13 18 being offered for anything to prove that there was any type 19 of investigation or adversarial proceedings or anything else 20 which led to this document. But it is not an official 21 document. 22 We don't know what process was behind 23 issuance of this document, so I object to it and, as I say, 24 on all those grounds. And then its probative value is 25 certainly very limited. 45 1 . . 2 I agree we don't know what the process was, but the document MR. SOHONAGE: We will note your objection. 3 will speak for itself. 4 MR. NEALON: Fair enough. She has testified 5 to what she understood the process to be. 6 BY MR. NEALON: 7 Q So the Social Security Administration 8 recognized you as the survlvlng spouse? 9 10 1 - ~l A Correct. Q You were asked some questions about some other parts of the litigation. Are you familiar with an 12 Erie policy? 13 14 15 A Correct, yes. Q What is the Erie policy? A David, on the workman's compensation portion 16 of his claim against Archibald, was awarded money, and I was 17 made beneficiary on that. And since he is deceased, I arrr 18 paid $500.00 monthly from Erie as the beneficiary on that 19 workrrran's compensation plan. 20 21 22 23 A 24 25 A Q Did you also exchange power of attorneys? A Oh, yes. Q So David named you his power of attorney? Yes. Q And you named David? Yes. 46 1 . . Q Okay. You mentioned about health care 2 decisions. Who was involved in that? < A Our power of attorneys were very extensive 4 for medical, financial, you name it, anything. It was quite S drawn ~ut. And who made us beneficiaries? We were in 6 charge of each other. 7 8 9 10 11 12 13 14 15 16 Q That is what I meant. A Yes. Q So David didn't name his family? A No. Q David didn't name his mother? A No. Q Who lS Bill Barth, lS that your father? A Yes. Q Did your father also send cards to David? A Yes. 17 (Whereupon, 18 Respondent Exhibit No. 8 19 was marked for identification.) 20 BY MR. NEALON: ~1 L~ Q I will show you what has been marked as R-8. 22 Can you identify that, please? 23 A 24 Q For a special son-in-law, love, Bill. 25 identifying him as a son-in-law? So your father sent cards to David 47 . . 1 A Yes. 2 MS. McDERMOTT: Again, the same objection to 3 t~at. 4 MR. SOHONAGE: Very well. It is noted. 5 MS. McDERMOTT: There is no evidence that it 6 even caGe from the father. 7 MR. NEALON: She just testified to that. 8 MS. McDERMOTT: Well 9 MR. NEALON: That is all I have at this time. 10 But if something else comes up ln the petitioner's 11 testimony, I reserve the right to recall her as part of my 12 case. l? MR. SOHONAGE: Very well. Ms. ~opecky, do 14 vou have any questions? 1~ MS. KOPECKY: No. 16 MS. McDERMOTT: I have some recross, please. 1 ( ~I MR. SOHONAGE: Certainly. 18 RECROSS-EXAMINATION 19 BY MS. McDERMOTT: 20 Q If I could retrieve R-6 up there. Now, I 21 celieve you testified previously, Ms. Barth, that this card 22 was sent to you by the late David Gross? 23 A Yes. 21 Q And I wo~der if you could read the date and 25 the~ read what that says i~side the card? 48 . . 1 A Christmas 2001 2 MR. NEALON: I mean this is very difficult. 3 The letter speaks for itself. I believe all three of you 4 can read very well. So I don't know if it is necessary for 5 her to read it. 6 MR. SOHONAGE: I agree, Ms. McDermott. THE WITNESS: I am sorry. MS. McDERMOTT: It wasn't put ln the T mean he had the front of the card read. He -'- 7 8 9 testimony. 10 didn't have what was written inside read by the witness. T -'- 11 would be happy to read it into the record, if that is 12 acceotable. 13 MR. NEALON: That 1S fine. Certainly_ Read 14 lt into the record. 15 MRS. STRASBAUGH: The clerk can read '"- l L.. 16 MRS. 1"JEVODAU: (Reading) Dear Angel, even 17 thougt you technically aren't my wife yet, try to convince 18 my heart we are not married. This has been a year of roller 19 coaster ups and downs and there is no -- there is no one I'd 20 rather ride through it all with but you. Of all I have to .21 be thankful for, you are top of the list. I couldn't 22 imagine Christmas without you. You are the embodiment of 23 the Christmas spirit. You are my elf. You are my joy. Yc~ 2 4 a~e 25 MRS. STRASBACGH: My h~Dpiness_ 49 . . 1 MRS. WEVODAU: My happiness. You are my 2 special Christmas present from heaven each and every year. 3 I love you. David. (End of Reading) 4 MR. SOHONAGE: Do you have any further 5 questions? 6 MS. McDERMOTT: I do. I am just waiting one 7 minute for the witness. 8 MR. SOHONAGE: Very well. 9 BY MS. McDERMOTT: 10 Q Now, in that card, he, David, indicated that 11 you were not his wife, isn't that correct? 12 MR. NEALON: Objection to the form. 13 MR. SOHONAGE: I think the document speaks 14 for itself. But the language was there, technjcally you are 15 not ~y wife. 16 THE WITNESS: Yes. 17 BY MS. McDERMOTT: 18 Q Now, you indicated over objection that Ramona 19 Gross sent you cards In which she referred to you as a 20 daughter-in-law? 21 A Yes, she did. 22 Q But you previously testified that you never 23 identified yourself to the Gross family as husband and wife, 24 isn't that correct? r,r LJ A Correct. 5 C~ 1 2 3 4 5 6 7 8 9 10 . . Q All right. Are you aware that the deposition of Mrs. Gross was taken on November 12, 2003, in the personal injury litigation in Dauphin County? A No. Q All right. Unfortunately I don't have coples of this. I am going to have to give you MS. McDERMOTT: What are we up to, Petitioner 6? MR. SOHONAGE: Yes. MR. NEALON: Do you have the entire 11 transcript? 12 13 14 15 16 17 18 19 20 21 22 23 MS. McDERMOTT: Yes. Somewhere. MR. NEALON: May I see it, please? BY MS. McDERMOTT: Q We will put this in the record. leave the original with you. I believe we showed this to you previously at I will just your deposition. If I represent to you that in this deposition of Mrs. Gross, which was taken in November of 2003 -- A Q Oh, yes, I'm sorry. You do recall this. MR. SOHONAGE: Mr. Gross, I understand, if we I do recall this. 24 could just have one person talking. 25 BY MS. McDERMOTT: 51 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . 1 2 3 4 Q And you were aware that in that deposition Mrs. Ramona Gross indicated that you were David's girlfriend, isn't that correct? A Q Yes. And isn't it true that that is how she 5 6 regarded you? A This is what she is saying. MS. McDERMOTT: I will leave that with you. I don't have anything further. MR. NEALON: No fOllow-up. MR. SOHONAGE: Okay. With regard to Petitioner's Exhibits 1 through 6, you are going to make a motion to introduce them. MS. McDERMOTT: Yes, I would like to move that they be admitted, please. MR. SOHONAGE: Very well. Mr. Nealon, you do have general objections I assume. MR. NEALON: I don't have an objection to their admissibility. I mean normally I would do this In my case, but, so I don't forget, I move for the introduction of evidence of our exhibits as well, 1 through 7. MS. McDERMOTT: My objections to those are already part of the record. MS. KOPECKY: For the record, I will agree with Ms. McDermott's objections to the cards and letters 52 . . 1 that were put In. 2 MR. SOHONAGE: Very well. With regard to -- 3 we will admit all the documents into evidence. With regard 4 to P-5 and 6 -- there is 8 that Mr. Nealon has. The 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 objection will be noted on all 8. With regard to P-5 and P-6, is there any way we could get an unredacted copy of these depositions? MS. McDERMOTT: Yes, sir. Absolutely. MR. SOHONAGE: Because we are getting them in bits and pieces, I would like to see what is coming before and what is coming after. So we will introduce them, I ask that counsel provide unredacted copies. MS. McDERMOTT: I will do that right away. MR. SOHONAGE: Very well. Thank you. Otherwise, they will all be admitted. Ms. McDermott, if you've finished with Ms. Barth, I assume she can have a seat. MS. McDERMOTT: Yes, sir. MR. SOHONAGE: You may call your next witness. MS. McDERMOTT: Brian Gross. Whereupon, BRIAN GROSS having been duly sworn, testified as follows: DIRECT EXAMINATION 53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 . . BY MS. McDERMOTT: Q Mr. Gross, please state your name and address for the record, please? A Brian Gross. 1 Spend A Buck Drive, Dillsburg, Pennsylvania, 17019. Q Mr. Gross, what is your relationship to this litigation? A Well, let's see, my mother was issued letters on my deceased brother. will. I am a co-executor of my mother's Q Okay. On what basis are you challenging Elizabeth Barth's administration of this estate? A Elizabeth Barth was never married to my brother. Is not married to my brother now. Nc,r will ever be married to my brother because he is decease~. Q A How do you know Ms. Barth? She 1S David's or was David's girlfriend when 18 he was alive. 19 20 21 22 23 24 25 Q A Q A Q A Q Okay. Was that for many years? Yes. You knew that? Yes. And did you see her at family occasions? Yes. And was she ever -- did she ever describe 54 . . 1 herself to you or did anyone ever describe her to you as 2 David's wife? 3 A Never. And I refer to my previous statement, 4 it speaks for itself. 5 6 MS. McDERMOTT: Nothing further. MR. SOHONAGE: Mr. Nealon. 7 CROSS-EXAMINATION 8 BY MR. NEALON: 9 Q Did you ever discuss the common law Sure. 10 affidavit with David? The affidavit of co~~on law marriage. 11 12 13 Id 15 16 signed it? No. 17 18 signed it? 19 A Q A Q A No. Never discussed it with him? No. Did you know he signed it? I have a copy of it. Do I know that he Q Before he died, did you know that he had A Like I said, I have a copy of the paper 20 bearing his signature, but I don't know that he signed it. 21 22 23 Q A Q Was it provided to you prior to his death? No. Okay. That is what I am trying to get at. 24 Before his death, did you know that an affidavit of common 25 law marriage existed? 55 1 2 3 4 . . remove A No. Q When did you learn about it? A After I filed a challenge, the petition to Elizabeth as representative of his estate under the 5 guise of her claiming to be his common law wife. 6 How often would you see David prlor to Q Okay. 7 his death? 8 10 A About once a month. I saw him daily when he 9 was in the hospital. Q Okay. When did he go into the hospital 11 during his last illness? 12 13 14 15 16 17 18 19 20 A Q July 15th. I don't know if we have establi~hed the date of the certificate. But what was his date of ~eath? A He died August I didn't I take that back. see him daily. I saw him almost daily, and he died on August 17th, I belie,,~e . Q You are not sure of his date of death? A Yeah. It was the 17th of August. Q You had to think about it though? A I don't remember dates. I mean as far as 21 22 that goes, he died, I mean it was a tragic event in my life. 23 I don't celebrate the day. 24 25 Q Okay. So you think he I understand that. went ln to the hospital around the middle of July. 56 1 2 . . A Yes. July 2000. Q And from that point on until his death you 3 said you saw him almost daily? 4 5 6 a monthly basis? 7 ~ o A Correct. Q And prior to that, you would only see him on A About once a month, I would say, average. Q Some months you wouldn't see him at all, 9 sometimes twice the next month? 10 A It is possible that there was a month that ~~ went by that I did not see him, yes. 12 13 - , ~~ 15 clese to David. 16 17 question. 18 19 20 Q When you didn't see him, did yo' talk to him? A I could have. Yes. Q Well, it doesn't sound like you were very MS. McDERMOTT: Object to the form of the MR. SOHONAGE: We will allow it. MS. McDERMOTT: Leading. MR. NEALON: Leading? This lS 21 cross-examination. 22 23 BY MR. NEALON: 24 25 MR. SOHONAGE: We will allow the question. Q Were you very close to David? A I was until his accident, and then he had 57 . . 1 spent a lot of time, you know, ln hospitals and rehabs. And 2 I had a business to run. So at that time it became kind of 3 difficult for me to see him on a daily basis. And I had a 4 young children and a family. 5 Q Okay. When was his accident? 6 A I believe it was '98. Q Do you know when in '98? Q u A In September. 9 Q Okay. Now, from that point until the time of 10 his death, you said you only saw him about once a month. 11 A Well, when he first had his accident, I saw 12 him more frequently when he was at Hershey Medical Center. 13 Then he was in Pinnacle Health and Rehab, and I would see 14 him, you know, more regularly than that. But 2fter his, you 15 know, his convalescence at home, you know, I didn't get to 16 see him that often. 17 Q Would you agree with me that your 18 relationship was not that close then? 19 A I disagree with that assessment. I had other 20 commitments, as I stated before. It doesn't mean that I had 21 any less of a relationship with my brother. 22 Q Okay. So you wouldn't know the day-to-day 23 conversations Elizabeth" Barth would have with him? 24 A I obviously didn't live there so -- 25 Q Right? 58 1 2 . . A Q I couldn't know that. Right. And you don't have -- as the 3 petitioner in this case, you are aware of the common law 4 affidavit, is that correct? 5 A I have seen that paper that says Health 6 A~erica on it, yes. 7 Q And you are not aware of any evidence where 8 David said, I only did that for health insurance reasons, 9 are you? 10 11 12 13 14 there any A Q Elizabeth Barth's deposition. I am asking about David's testimony. Is A Q David is not here to testify to that. I understand that. I am asking you for any 15 evidence you have that David at any time indicated that was 16 17 only for health insurance reasons. A Like I said before, David is not here to 18 testify to that. So for me to say that he said that, that 19 lS hearsay, right? 20 21 Q No. If he had said it, I want to know. It lS not hearsay, sir. Did he ever say to you anything to the 22 effect that this common law marriage was a sham, that it 23 didn't exist, it was only done for health insurance 24 purposes? 25 A I never saw the paper until after he died. 59 1 2 3 4 5 6 7 . . Q Okay. So A So he did not discuss that with me. already established that. 8 true. 9 10 11 the cards? We Q A Q A All right. Your sister is Mary Ellen Brouse? That is correct. And she has a daughter, Oanielle? She does have daughter, Oanielle, that is Q And Oanielle referred to her as Aunt Beth in MS. McDERMOTT: Objection. He would have no 12 way of knowing. 13 MR. SOHONAGE: The documents spE~aks for 14 themselves. If he has knowledge of calling he~ Aunt Beth at 15 other times, he can answer that. 16 17 18 19 20 21 22 23 24 25 THE WITNESS: It may have been used as a term of endearment, but it has absolutely no -- I mean I call my mom's friend Aunt Jenny and we have absolutely no relationship bloodwise, marrlage or others. that we used. BY MR. NEALON: Q Beth? It was a term So yeu did hear Oanielle refer to her as Aunt A No, I didn't say that. She could have used it as a term of endearment. She could have. 60 1 2 3 4 signature? 5 6 7 8 9 . . Q A Q You never heard her say that? No. Are you familiar with your mother's A If you are asking me if I can determine whether something is authentic, I cannot. Q You saw the cards that your mother sent A I saw the cards that you brought in as Elizabeth? 10 exhibits for your particular position. As far as me saying 11 12 whether those cards are authentic or my mother signed them, I cannot say that. I didn't see her sign them. She never 13 said -- she never showed them to me. And I ha~e no idea 14 15 16 17 18 19 20 21 22 23 24 25 where they came from other than from you guys. know. So I don't I can't say that they are. mother? Q A Q A Are you married, sir? Yes, I am. How long have you been married? Been married since April of '96. What lS your wife's name? Young. Would Young get birthday cards from your Q A Q A Q Yes. How would she sign them? 61 . . 1 A I never really looked at the signature. They 2 were her cards. 3 Q Well, you saw how these seem to have a 4 particular way, Mother and Dad Gross. Is that consistent 5 with how your mother would sign things? 6 7 8 9 10 11 12 13 14 15 16 17 A You are asking me to give you a level of consistency In a certain response of what they would do. Q Did they ever sign cards Mother and Dad Gross? A Q A They would sign my cards mom and dad. Okay. What about to Young, your wife? I never looked at the signature lines. Q Did they send cards to Young, to my daughter-in-law, over the years? A I never looked at what they would say on the outside. They were her cards. Q Over the past not -- well, your mother died 18 In early 03', early 04', is that correct? 19 A February of '04. 20 21 22 23 24 25 Q All right. And between '96 when you were married and February of '04, you never looked at a card that she might have sent to your wife? A I didn't know that this information would be so critical down the road as to what she wrote to my wife. MS. McDERMOTT: I am going to o::,j ect to the 62 1 2 relevance. . . MR. NEALON: Well, they made this innuendo 3 that is not authentic, that Elizabeth somehow wrote these 4 cards out. I am trying trying to elaborate whether these 5 would be consistent with the way Ramona would do them to 6 other daughters-in-law. 7 MR. SOHONAGE: We will allow you just a 8 little bit more room. 9 BY MR. NEALON: 10 11 12 13 14 15 16 17 Q A You never looked at a card? She would say, she sent me a card, it is like great. I didn't look at them. I didn't sit ttere and 23 24 25 cards. examine them or notate on them or study them. Q When was the first time you saw these cards? A Q These cards? Yes. MR. SOHONAGE: Are you referring to the 18 exhibit itself? 19 MR. NEALON: The exhibit itself. 20 THE WITNESS: The first time I saw these 21 cards was when you brought them in front of the table. 22 BY MR. NEALON: Q A Okay. That is the first time I have seen these 63 1 2 3 4 5 . . Q Okay. And before today you were aware that Slizabeth had been determined to be the surviving spouse by Social Security, were you not? 8 9 MS. McDERMOTT: I am gOlng to object agaln. We don't know what Social Security actually determined. We don't have any authenticated document from Social Security. 6 7 We don't know what their analysis was. We don't know what proof, if any, was provided to them. MR. NEALON: I am trying to find out if he 10 knows anything about the analysis. 11 MR. SOHONAGE: If you want to rephrase your 12 question. 13 BY MR. NEALON: 14 15 16 17 18 19 20 21 22 23 24 25 necessary. Q A Q A Q A Q A Were you ever contacted by Social Security? I got a questionnaire from them, yes. Did you fill it out? Yes. Did you send it back? Sure did. Do you have a copy of it? I didn't keep copies. I didn't think it was If I did -- if I would have known, you can bet your boots I would have. Q You are saying you obj ected to r,er being common law spouse for Social Security Administ:::ation 64 1 pu~poses? 2 3 4 . . A That wasn't the question. Q Well, you filled out a questionnaire? A Yeah, that wasn't part of the questionnaire, 5 whether I objected or consented to it. 6 7 Q What cid you do? A They asked me if they were married, and I 8 said, no, they were not. 10 11 12 " ~ ~J 14 15 16 17 " Q ~u 19 20 9 Q A Q A says. Q A Q the form? A 0 ~ A But you didr.'t keep a copy of the form? No. Did you try and get a copy? What is the point? I already k-ow what it Well, it -- It said they weren't married. Did you talk to Elizabeth about filling out No. 8id she ever ask you to fill one out? I den't remember the conversation like that 21 ever taking place. 22 Q Would you agree that Elizabeth was David's 23 primary caregiver during the last several years of his life? 24 A I would have to say no because e was ln 25 hospitals and rehabs a lot of the time, and thEn she held 65 1 2 3 5 6 7 8 9 10 11 12 13 14 15 16 . . A Oh, David told me that he had workers 4 compensation and it was contractual and he had designated outlets that he had to go to In order for them to pay for the medicine. So I was precluded from participation. So I couldn't help him. In order for him to be reimbursed for the medicine, he had to go to the designated outlets. Q Were there unreimbursed pharmacy bills, as far as your understanding? A If you have workers comp and you have a designated store, I don't think there should bE any unreimbursed bills. If he went Q I am asking did he tell you ther"e are some that are not covered. A Wasn't aware of that. Q But he did ask you for help? A No, he told me that I couldn't. I offered ~:o 17 help him. He said I have to go to these designated places. 18 I didn't have contracts with them, so I couldn't help him. 19 20 21 22 23 24 25 They told him, they directed him where they wanted him to go to get them. Q What pharmacy do you run? A Pardon me? Q A What is the name of your pharmacy? The name of my pharmacy was The Medicine Shoppe. I no longer own it. 67 10 11 12 13 . . 1 2 3 4 MS. McDERMOTT: I would like to interpose a relevance objection to all this. I am not sure what any of this has to do with anything here. MR. SOHONAGE: I agree. Mr. Nealon, unless 5 you can tie this together -- 6 MR. NEALON: I think it goes to the fact that 7 he wasn't very involved with Mr. Gross and may not have 8 knowledge of the true relationship between Elizabeth and 9 David. MR. SOHONAGE: Very well. MR. NEALON: That is where it ie. relevant. MR. SOHONAGE: Move on to anothsr line, please. 14 BY MR. NEALON: 15 16 17 18 19 20 21 22 23 24 25 Q A Where is Anthony today? I don't know. He might be working. I am not sure. Q A Did you discuss this hearing with him today? No, he has counsel that he discusses things with. Q Did you say are you coming today? A I just said he has a counsel that he discusses the matter with. Q I know. But did you call him up and say are you coming to today's hearing? 68 . . . 1 CROSS-EXAMINATION 2 BY MS. KOPECKY: 3 Q Mr. Gross, did David and Elizabeth discuss 4 with you and other family members the fact that they were 5 going to plan a wedding or they were going to get married? 6 A They talked about it, yes, and they had an 7 engagement announcement, which I think was put out as -- so 8 it was talked about, yes. 9 Q Was there congratulations or any type of a 10 party a~ter ~hey announced their engagement th2t you recall? 1 " ~~ A Not that I remember. 12 Q Do you remember any specific daLes that they 13 had planned for a wedding? 14 A I don't know that they had put a particular 15 day on the calendar. I think it might have been like a 16 seasonal thing, like summer. I didn't look -- it was 17 sometime ago, and I know the paper is there, but whatever 18 that says. But I don't think it listed a date. I am not 19 sure. 20 Q You had seen a copy of the death certificate 21 which I believe was marked previously. Help me Ollt here 22 Nith the number. 23 MR. SOHONAGE: Petitioner's 3. 24 BY MS. KOPECKY: 25 Q Yeah, Petitioner's Number 3. W2re you the 71 . . 1 informant of the death certificate for your brother? 2 3 A Q No, I was not. Were you aware of any other of your family 4 members being the informant for the death certificates? 5 6 A Q No, I wasn't. Was it your understanding that who was giving 7 the information for the death certificates? 8 9 information. 10 A That it was Elizabeth who gave the Q Now, you had previously been as:.:ed regarding 11 an affidavit or some type of a form that you sEnt back to 12 Social Security for the pretension I believe of- having 13 widow's or survivor's benefits presented to El~zabeth. Is 14 that righc? 15 16 17 BY MS. KOPECKY: 18 MR. SOHONAGE: Excuse me one second. You may proceed. Again, I apologize. Q Let me repeat the question. I believe there 19 was testimony from Ms. Barth that there was some type of 20 supporting document from Social Security presented to both 21 you and to Tony at some point for her to try to get 22 survivor's or widow's benefits for the death of David. Is 23 that correct? 24 A I received something. As to wh,,:,ther my 25 brother did and what he did with it, I don't k~ow. 72 . . 1 2 3 be here, lS that correct? That is true. A Q Okay. Is it your understanding that they are 4 supportive of you in your petition to have Elizabeth removed ~ and you appointed as executor? 6 7 MR. NEALON: Objection. MR. SOHONAGE: I will sustain that objection. 8 MS. KOPECKY: Nothing further. 9 MR. SOHONAGE: Ms. McDermott, do you have any 10 follow-up questions? 11 MS. McDERMOTT: I don't. 12 MR. SOHONAGE: Mr. Nealon? 13 14 15 16 17 18 19 20 21 22 MR. NEALON: No, sir. MR. SOHONAGE: Mr. Gross, you may have a seat Thank you. MS. McDERMOTT: We rest our case. MR. SOHONAGE: Very well. Mr. Nealon. MR. NEALON: Do you think we can take five minutes to make sure who is out here? then. MRS. STRASBAUGH: I do have another hearing. MR. NEALON: At what time? MRS. STRASBAUGH: It was scheduled for three 23 o'clock. 24 25 MR. NEALON: I have got three Ol' four witnesses. I'm sorry. I didn't know you only gave us an 74 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . hour and a half. Do you want to continue with this one? Or do you want to corne back and corne back another day? Because we will have at least an hour and a half of more testimony. MR. SOHONAGE: Hold on second. Let's take a five minute recess, if you want to check on your people. (Whereupon, a recess was taken from 3:15 p.m. to 3:30 p.m.) MS. McDERMOTT: I would like to put an objection in to all of the witnesses that Mr. Nealon is going to call on the basis that their identities were only disclosed to us last week, I believe on Tuesday. There has been no real meaningful opportunity to depose any of these people. We haven't gotten an outline of what they are going to say. So we previously had raised that objection in pleadings with Judge Hoffer, and we do it with regard to all these witnesses. MR. SOHONAGE: Very well. Maybe you can give us an offer of proof, a general offer of proof what the witnesses are going to testify to, Mr. Nealon. MR. NEALON: We will probably call four witnesses. The first is Janelle Augsburger. MS. AUGSBURGER: Correct. MR. NEALON: Ms. Augsburger is a friend of both Elizabeth and David. She will testify to their relationship over the years. She will testify how they 75 . . 1 acted and how she introduced the two of them to people ln 2 the public. 3 MR. SOHONAGE: Very well. 4 MR. NEALON: There is another gentleman, 5 William Dallam. He is a friend of both of theirs as well. 6 He will testify similarly. And then we will probably have 7 Sue Barth, Elizabeth's mother, testify, identify some of the 8 9 10 11 12 cards that she wrote and how she considered them. MR. SOHONAGE: Very well. Thank you. Mr. Nealon, we are back on the record. You have called your first witness to the stand. proceed. You may 13 Whereupon, 14 JANELLE COLLEEN AUGSBURGER 15 having been duly sworn, testified as follows: 16 DIRECT EXAMINATION 17 BY MR. NEALON: 18 19 20 21 22 23 24 25 Q A Q A Q State your full name for the record? My name is Janelle Colleen Augsburger. Spell that last name? Sure. A-u-g-s-b-u-r-g-e-r. Where do you currently reside? A At 1288 Boiling Springs Road, Boiling Pennsylvania. Q What is your educational backgrclund? 76 Springs, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A High School. Q A mom. Q Barth? A Q A together. Q A 25. Q A me. Q . . I am a high school graduate of Mechanicsburg What do you do for a living currently? I currently am a home mother, stay at home Okay. How long have you known Elizabeth Since I was 11. Did you go to high school together? Yes, we went to high school and graduated Did you come to know David Gros~: as well? Yeah. I met David approximately, maybe I was Where do you remember meeting him? At my home, Beth had brought him over to meet Now, without embarrassing you, how old are you today so we can figure out how long ago that was? A I am 35. Q So this was about ten years ago? Correct. Elizabeth has testified they met in '95. Correct. So it was probably about the ti~e they -- 77 A Q A Q 1 2 3 accident? 4 5 6 David? 7 . . A Yes. Q Now, were you familiar that David had an A Yes, I am. Yes, I was. Q After the accident, how often would you see A Urn, well, Beth and I and David, probably at 8 least once to two times a month. Once to two times a month 9 I'd say. 10 11 he passed away? 1 ~ ~L 13 Q Was that on a regular basis up ~nti1 the time A Yes. Yes. Q How would you describe the relationship 14 between Elizabeth and David? 15 16 and wife. A Relationship, I believe, would be as husband I introduced them as husband and wife. After 17 David -- before David had the accident he had proposed to 18 Beth. And then bought her the ring and they moved in 19 together. And as always, whenever I would see them, I would 20 introduce them as husband and wife. 21 22 A Q To who? I have had multiple gatherings at my home and 23 through friends, you know. We would go out to dinner dates 24 and concerts, and we went to the fireworks together. And I 25 had multiple parties that David and Beth atten~ed over the 78 1 years. 2 . . Q Now, you were aware though they were actually 3 planning a ceremony L1 5 6 correct? 7 8 9 ceremony? 10 11 J';, Correct. Q -- to conform their marriage, 18 that A Correct. n "" Were you going to be part of that wedding A Yes. Q If they -- if you were part of planning the 12 ceremony, why would you still introduce them a husband and 13 wife? 14 A After he had had his accident, the wedding IS was postponed. And at that time they weren't sure, you 16 know, money wise, monetarily wise, Slnce it was very 17 devastating obviously. And so he, after he had his multiple 18 surgerles that he had, it was -- I knew that David wanted to 19 walk down the aisle for a formal ceremony. But that never 20 came 1::.0 pass. So I knew that when they came to my home and 21 told me that they exchanged their own personal vows with 22 each other, that I acknowledged them at that point as 23 h~sbard and wife. 24 Q 25 A Do you know when that was apprmimately? I'm sor;:'y. That was, let's see, probably it 79 . . 1 was somewhere in the year 2000, I want to say. 2 Q And they had told you they actually exchanged 3 vows? 4 A Yes. 5 Q So it was from that point that you introduced 6 them as husband and wife? 7 A Correct. 8 Q Did yo~ have any discussions with Davld about 9 this? 10 A Well, it was -- we were at my hClme whenever 11 they had come to visit. 12 MS. McDERMOTT: I am going to O~}j ect as 13 hearsay to anything she is going to say that David told her. 14 MR. SOHONAGE: We will note it for the 15 record. You ca~ answer the Question. 16 BY ~R. NEALON: 1 " -L I Q Go ahead. 18 A ~hev came to my home, and David, even though 19 he was ln a vast amo~nt of pain, always had a smile on his 20 face. And I know how much he loved Beth. And whenever he 21 said to me some very intimate things that he didn't have to 22 tell me, I commend him, and I grew from seeing him daily and 23 them both together. p,nd he never complained, but still 24 showed so much love for Beth. And it was abov~ and beyond 25 what ~ have seen in a lot of marriages that ha~e said vows 80 . . 1 to each other that can't -- he went above and beyond that to 2 me and made me learn from him how much love means to each 3 other. 4 Above all he loved Beth with all of his 5 heart. And I know that. And everybody around could see 6 thaL very well. You didn't have to express it with words. 7 He didn't have to say the words. 8 9 Q A But he did tell you that they exchanged vows? Yes, he had told me that they had exchanged 10 vow words to each other that was personal to t~em that would 11 -- God is everywhere, that is what I told him. I said, 12 David, God is everywhere. 13 I said -- I told him at that time I had an 14 outside wedding, you know, I didn't have it ln a church, and 15 yet I knew that, you know, with his -- they are both 16 Catholic and, you know, they want to have everything done 17 prope~, but it was very he was very ill, and physically 18 it was very hard for him. 19 MS. McDERMOTT: I am gOlng to have a 20 continuing objection, if I may, to everything that David 21 Gross told her. 22 23 24 25 MR. SOHONAGE: Very well. We will note that. MR. NEALON: That's all I have. MR. SOHONAGE: Ms. McDermott. MS. McDERMOTT: Thank you. 81 . . 1 2 3 CROSS-EXAMINATION BY MS. McDERMOTT: Q Ms. Augsburger, you have said you have known 4 -- YOil knew David Gross for a long time? 5 A If you consider whatever years, that is a 6 long time. 7 Q Well, what year did you meet him? 8 9 10 11 you as A Somewhere between '95 and '96. Q Okay. And at that time was he introduced to Elizabeth's Barth's husband? 12 A Q Not at that time. Okay. All right. And you indicated that you 13 would describe their relationship as that of husband and 14 wife? 15 16 Correct. A Q And that at sometime in the year 2000 he 17 proposed to Beth, bought a rlng, and they moved in together? 18 A Well, actually well, they moved In 19 together I am gOlng to say In '96. They moved in together 20 in '96. And then they had their own personal apartment, 21 maybe nine months to a year after, after that. Because they 22 lived with Beth's mother for a short time until they got 23 24 25 t;leir own apartment. Q Okay. And at some point you sa~d he proposed? 82 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 . . A Q Correct. And bought a ring? A Correct. Q And you thought that was the year 2000? A He had -- it was -- he proposed to Beth before his accident, before '98. And that is what I know. Q Okay. A I don't know at what time he gave her, actually bought and paid for the ring. Q Okay. Do you know at what time they exchanged these vows that you have described? A I am going to say it was at least, at least 2000, because he had had multiple surgeries then, and I knew he wanted to walk down the aisle. And then he had another surgery that went wrong on his shoulder, and he was still disabled very much. Q And after that time you introduced them as husband and wife? A Q A Correct. Did they tell you to do that? Actually I don't know that they told me to do 22 that, no. They didn't tell me to do that. 23 Q All right. So it wouldn't surprise you if I 24 indicated to you that Ms. Barth described each other as not 25 husband and wife? 83 1 2 3 4 5 6 7 8 9 10 11 12 13 14 . . A I would percelve their love as being husband and wife. MS. McDERMOTT: Nothing further. MR. SOHONAGE: Ms. Kopecky. CROSS-EXAMINATION BY MS. KOPECKY: Q I just have a couple questions for you. Were you ever present at family functions when Elizabeth and David were there together with their family? A For I believe his -- it w~s either Yes. Beth's birthday or -- I believe it was Beth's birthday that his mother and father were at before he had passed. Q Do you know if any of his family members 15 outwardly considered them husband and wife? 16 A I am going to say that they acknowledged her 17 as being, she the mother, David's mother, called her 18 daughter often. 19 Q You heard that? 20 A Yes, I did. I believe totally that she -- 21 yes, I do, she believed that they were together at that 22 point. 23 24 25 Q Did -- when you said you introduced them husband and wife, did you call them Mr. and Mr~. David Gross? as 84 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . A Q A Q No, I did not. How did you refer to them? As the Gross's. Okay. But the implication was that her last name became Gross? A Correct. Q Okay. MS. KOPECKY: I have nothing further. Thank you. MR. SOHONAGE: Mr. Nealon. MR. NEALON: No follow-up. MR. SOHONAGE: Very well. MR. NEALON: May this witness be excused? MS. McDERMOTT: I have one more, if I may. MR. NEALON: I'm sorry. CROSS-EXAMINATION BY MS. McDERMOTT: Q Would it surprlse you to know that Elizabeth Barth has testified that she never referred to herself as Elizabeth Gross? A It wouldn't matter to me that -- it doesn't matter to me about last names being in a relationship of unity. You can pretty much keep your maiden n2me if you wish. It doesn't matter what your last name is in this day and age, I believe. 85 . . 1 MS. McDERMOTT: Thank you. 2 MR. SOHONAGE: May she be excused? Any 3 objection? 4 MR. NEALON: No. 5 MR. SOHONAGE: Thank you, ma'am. 6 MR. NEALON: Would you ask Mr. Dallam to come 7 in? 8 THE WITNESS: Sure. 9 MR. SOHONAGE: Who is your next witness? 10 MR. NEALON: William Dallam, D-E-l-l-a-m. 11 MR. SOHONAGE: Have you been sworn in, Mr. 12 Dallam? Have you been sworn? 13 MR. DALLAM: I don't think so. 14 MR. NEALON: No, he wasn't. He was 15 downstairs. 16 MR. SOHONAGE: Would you stand up, sir, 17 please stand and raise your right hand? 18 Whereupon, 19 WILLIAM MORGAN DALLAM 20 having been duly sworn, testified as follows: 21 MR. DALLAM: I am wearing two hearing aids so 22 I would appreciate everybody speaking up. 23 MS. McDERMOTT: Yes, sir. 24 DIRECT EXAMINATION 25 BY MR. NEALON: 86 1 . . Q I have never been accused of being quiet so I 2 don't think you will have a problem. 3 Could you state your full name for the 4 record, please? 5 6 A William Morgan Dallam. Q Where do you reside, sir? Where do you live? A I live at 117 Tuscorora Street, Harrisburg, 8 Pennsylvania, T-u-s-c-o-r-o-r-a. 9 10 11 12 13 14 Q How old are you today, sir? A I am 77. Q I assume you are retired? A Yes. Q What did you do before you retired? A I was chief of federal programs for the 15 ?ennsylvania Department of Education. 16 17 18 19 20 ~1 L_ 22 23 24 Capital reglon. 25 Q Did you know Elizabeth Barth and David Gross? A Yes. n ~ How long did you know them? A I'd say since about 1993. Q Who did you know first, David or Elizabeth? A David. Q How did you come to know David? A David joined our Cosmopolitan Club of the Q What lS the Cosmopolitan Club? 87 1 2 once a month. . . A It's a small social club that meets about It's primary purpose is to raise money for 3 diabetes education and several other local charities. 4 5 6 7 8 9 10 Elizabeth. 11 12 13 14 relations~ip? 15 Q A Q A Q A And David was a member of that? Yes. At seme pciGt did you meet Eliz3beth Barth? Yes. When would you say that you met her? Soon after Da7id j oiCled the club we IT:et Q A Q Okay. Did she become involved in the club? Yes. Over time how would you describe their A I understood them to be a married couple. 16 Very 3i~ilar to a cc~ple that we had prevlous, Horace Rowe 17 a~d Patrlcia Banzhoff, same kind of situation. 18 19 20 21 treasurer. bills. So we sent cut bills to single people one way to Q What do you mean, the same kind of situation? Well, I was -- for a period of time I was the A So basically I was the one that sent o~t the 22 them, and sent out bills to the married people basically one 23 single bill. Which is how we treated Horace a~d Patricia 24 who weren't married, but living at the same adcress. And 25 treated David and Beth the same way. 3D 1 " L 3 4 r ::; . . Q Would you interact with them socially then? A Yes. Q Would you have dinner with them? A We had dinner witb them, yes. Q Okay. Now, you said you understood them ~o 6 be a married couple? ..., I 8 9 A Yes. Q Could you describe their relationship? A Very :=lose. I thought they were very, 7ery 10 good with each other. And they interacted witt each other 11 the way a married couple does. Sometimes one ~nterrupting 12 the other's sentences. And basically showing that kind of 13 tolerance that couples have for each other. 14 Q Okay. Now, I am sure you, over the years you 15 have known boyfriends/girlfriends that way? 16 17 18 together? 19 20 yes. 21 A Yes. Q And even boyfriends/girlfriends that live A I have heard about it, but I don't know that, Q But, well, what makes this relationship 22 different? Why -- I mean why did you think they were 23 husband and wife if they had different last na?1es? 24 A weJ_lr beC2'JSe we already had ex;"erJence with 25 Horace and with Patricia Banzhoff, who lived ~(gether and 89 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . basically were married and basically were a couple. The social club mostly was married couples and single people. But we understood the difference between them when they came to join the club. Q You said you actually billed them as if they were husband and wife? A Yes. Q Was there a different dues stru(:ture then? A No. Q Okay. A It was -- it's a small club. And basically it is a matter of sending out one billing for the two of them as opposed to the separate billings for separate people. Q A Q A Q A Q Are you married, sir? Yes. What is your wife's name? Mary Louise Ford Dallam. And she is ill currently? She is ill? Yes. All right. Is she undergoing active treatment? A Yes. Q What -- this becomes relevant 1 ter because of a request we are going to make so I just want to go into 90 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 . . this very briefly. What is her current condition like? A Her current condition is that every morning we get up at 6:30 and I take her over to the doctors so that they can begin hydration treatment for about three hours. And then after that, I take her over to the West Shore and she has a radiation treatment that lasts about an hour and a half. weeks. Q Okay. A And that will go on for another two or three This is the fourth week of radiation t=eatment. Q She wasn't strong enough to come in today, was she? A No. If, 1n order for her to come in today, then you folks would have to absolutely say we are going to be here at a certain time, then I could drive her here and bring her in, testify, and go back out again. But not this 17 sitting around and waiting around the way we had to. You 18 couldn't do that -- 19 MR. NEALON: That is all I have. 20 THE WITNESS: -- cause she coughs. 21 MR. NEALON: That is all I have. 22 MR. SOHONAGE: Ms. McDermott. 23 24 25 CROSS--EXAMINATION BY MS. McDERMOTT: Q Mr. Dallam, you indicated that you thought 91 . . 1 that -- did you think the Barths were a married couple or 2 just living together? 3 4 A The who? Q Did you think that David Gross and Elizabeth 5 Barth were a married couple or just living together? 6 ~ I A I thought they were a married couple. Q And you indicated you are not really familiar 8 with anybody who lives together and who is unm2rried? 9 10 A Not very familiar, no. Q All right. Did either Elizabeth Barth or 11 David Gross ever tell you that they were married? 12 13 14 15 16 A No. Q It was an assumption on your part? A Yes. Q How often did you see them? A We would see them at the monthly dinners and 17 then on a couple of occasions -- my wife and Beth were 18 interested in very similar things. And we went over to have 19 dinner at their house one time and had a very, very long 20 conversation. And it was sort of basically Beth was 21 thinking about getting started in some kind of business that 22 required some design work. And Mary Lou, who ~as very much 23 interested as an artist and design, was offerirg to be of 24 assistance and help. So they had a long conversation. 25 Q So basically you normally saw them once a 92 5 6 7 8 9 10 11 12 13 14 15 16 . . 1 month, and then on a couple of other occasions you and your 2 wife had dinner with them, is that correct? 3 A On other occasions we would see them, they 4 were very active when we were selling raffle tickets. We built a playhouse to raise money for diabetes, and Beth and David would help us with that. Both of them being very effective sales persons in that regard. Q Okay. But you weren't really fcmiliar with their relationship on a day-to-day basis, were you, sir? A No, not really. Q And you wouldn't consider you and your wife to have been really close friends with them? A The two ladies considered themselves good friends. They were very simpatico. MS. McDERMOTT: I have nothing further. Thank you, sir. 17 MR. SOHONAGE: Ms. Kopecky. 18 MS. KOPECKY: Just one quick follow-up. 19 CROSS-EXAMINATION 20 BY MS. KOPECKY: 21 Q I will come up here. As the treasurer, do 22 you recall what the dues cost was for a single person? 23 24 25 A Q A Dues for a single person are $25.00 a month. And how -- $25.00 a quarter. 93 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 . . Q A quarter. How much was it for a married couple? A Q Married couple would be 50 bucks. So there was no break if you got -- you were married or you got two single persons sent? A No break. Q Do you recall, if you recall, the bill that was sent to them, did it say Mr. and Mrs. Davie Gross, or did it say David Gross and Elizabeth Barth at the same address? A It said David Gross and Elizabeth Barth at the same address. MS. KOPECKY: Thank you. I have nothing further. A The same way we treated the other couple. MS. KOPECKY: Okay, thank you. MR. SOHONAGE: Mr. Nealon. MR. NEALON: I have nothing further. MR. SOHONAGE: Mr. Dallam, you can be 17 18 19 20 excused, unless there is an objection. 21 MS. McDERMOTT: No objection. 22 MS. KOPECKY: No objection. 23 MR. SOHONAGE: You are free to be excused. 24 Thank you, sir. 25 MR. NEALON: Could you tell Sue Barth to come 94 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . in? Whereupon, SUZANNE FERN BARTH having been duly sworn, testified as follows: DIRECT EXAMINATION BY MR. NEALON: Q Could you state your full name for the record, please? A Suzanne Fern Barth. Q Where do you currently live? A 601 Mallard Road, Camp Hill, Pa. Q How long have you lived there? A Since 2001, in April of 2001. Q Okay. And you are Elizabeth's mother? A Yes. Q Where are you currently employed? A Delta Dental. Q How long have you been employed there? A 2000. Q You knew David Gross? A Oh, yes. Q How long would you say you knew him? A Since they first met. Q Okay. Towards the end of David's life, how would you describe the relationship between Elizabeth and 95 1 David? 2 . . A They were a perfect couple. They were meant 3 -- I never saw any conflict between them. They got along so 4 good. They were, like I say, a perfect couple. 5 Q Okay. Did you have any discussions with 6 David about marriage and things like that? 7 A Yeah, we used to talk about the wedding, 8 planning a wedding. They wanted a big wedding, and they 9 would talk about getting married. And, of course, the 10 accident, it held things up, but, yeah, we talked about it. 11 12 13 14 15 16 Q Okay. What did you consider David to you? A To me? Q Yes. A My son-in-law. Q Why? A He called me mom. He addressed me as mom. 17 And when I refer to him in conversations, I just didn't say 18 Beth and David, I would say my son-in-law David. - 0 lJ 20 wedding? 21 22 23 son-in-law? 24 Q Okay. But you knew they were planning a A Yes. Q Then why did you refer to him a:: your A The only reason they did not get married at 25 the time was because when David had his bad accident, I mean 96 . . 1 I eve~ said, why don't you just go ahead and go to a J.P. 2 and get this over. Be said, no, Beth has waited all he~ 3 life for this wedding and I don't want to deprive her of a 4 wedding with the church. And he kept thinking he was gOlng 5 to get better. 6 And it kept being postponed, one operation 7 after -- I mean it seemed like he just had to cet through 8 th~s operation. Then he got through it. Then it took about 9 a year to recover from the first one. Then they would have 10 to go bac~ . ~ 1n Lor another operation. It kept getting pushed ~1 back. And nobody wanted to say to David, this might be as 12 good ~ ~ as ~~ is going to get. I mea~ we didn't want to take 13 that away from him. 14 Q Did you discuss with him the common law 15 affidavit, the aff~davit of common law marriage? 16 A No. 17 Q Did you discuss with h1m exchanging vows? 18 A I knew they did, but I didn't discuss it 1n 19 any kind of length or like that, you know. 20 Q How did vou know they had exchanged vows? 21 A They told me. 22 Q Who told you, both of them together? 23 A Beth did. But David didn't, bu~ he was 24 sitting there. 25 Q Okay. Do you know when this was? 97 1 2 3 4 5 6 7 8 9 10 11 12 13 . . A Oh, God. Before -- I am not good with dates. A Q Before she got her engagement ring. I mean they kind of I can't give you a date. I don't know. I don't know. Q A Q then? A Q A Q Okay. But you were aware of that? Yeah. And did you consider them husband and wife Yeah. Did you consider him your son-in-law? Always. Okay. That lS all I have. MR. SOHONAGE: Thank you. Ms. McDermott. CROSS-EXAMINATION 14 BY MS. McDERMOTT: 15 Q Ms. Barth, you talked about David and Beth 16 planning a wedding, and that they talked about getting 17 married. When was that that they were planning a wedding? 18 A Gosh. I think they knew almost from the 19 beginning when they were dating. But I think probably in 20 96 they started planning this wedding. While they were 21 still with me. 22 Q Okay. And you indicated that they didn't get 23 married because of David's accident? 24 25 That is right. All right. Was it before or after the 98 5 6 7 8 9 10 11 12 13 14 15 16 17 18 . . 1 accident that you believed that you were told by your 2 daughter that they exchanged vows? 3 A I think it was -- I am not sure, but I think 4 it might have been after the accident. Q A All right. And the accident wac:: In 1998? '98 or -- '98, I think. Yes, , ~18 . Q All right. Had you referred to David as your son-in-law before anyone had told you that they had exchanged vows? A I did. I -- In conversation I would say my son-in-law David. Q Okay. That wasn't because you thought they were married though, was it? A I did. Because it was like they were living together. So naturally a parent is going to -- I mean who wants to say, well, you know, I -- just my son-in-law David, it was easier. That is the way I thought of him. Q Right. You don't know when it was that Beth 19 got the engagement ring? 20 21 22 23 A I, I am not sure. I can't tell you the exact year. I don't know. Q Okay. A But she was engaged before she got the rlng. He just couldn't afford to get her a rlng right away. But I 24 25 don't know when he actually gave her the ring. 99 . . 1 Q Do you know that they ran an ad in the paper, 2 The Patriot News, saying they were engaged to be married in 3 the summer of 2004? 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yeah, they did put an engagement notice In. Why do you think they did that ~f they Q considered themselves already married? A She wanted to have a wedding, a church. like I said before, I said why didn't you just go to a J.P.? They said -- David even said no, this is something And, Beth always wanted and I don't want to deprive her of it. They wanted to have a church wedding. Q Do you know who put the notice ln the paper? A No. Q Which of them? A No, I don't know that. Q Okay. Did you ever hear Beth describe David as her husband? A I don't know if she said it in so many words. I mean I can't -- I mean I don't -- I don't know. MS. McDERMOTT: I have nothing further. MR. SOHONAGE: Thank you. Ms. Kopecky. MS. KOPECKY: I have no questions. Thank you. MR. NEALON: No follow-up. MR. SOHONAGE: You can be excused, ma'am, 100 10 IJ. 12 . . 1 unless there is an objection. 2 MR. SOHONAGE: Thank you, ma'am. 3 THE WITNESS: Do you want me to send anybody 4 else in? 5 MR. NEALON: No. With that, we would rest. 6 MR. SOHONAGE: Ms. Kopecky, do you have 7 anybody to introduce? 8 MS. KOPECKY: No, I do not. 9 MR. SOHONAGE: Mr. Nealon, do you have any closing statement you would like to make? MR. NEALON: Yes. Briefly I mentioned to you in my opening 13 statement that this can be proven 1n one of two ways, it can 14 be done either with an exchange of words or reputation 10 15 the community and cohabitation. You don't need both. 16 17 18 19 20 21 22 23 24 25 Under the case law, if you have one or the other, you have satisfied the requirements of common law marriage. I think the evidence that we presented today establish that there was a common law marriage, but with an intent to have a celebration for friends and f2mily in a formal church wedding. I would submit to you that this may not be the most common approach to establishing a marriage, but it certainly is valid under Pennsylvania law. And we brought to you not just the testimony of Elizabeth Barth, but 101 . . 1 brought to you testimony of disinterested people, Janelle 2 Augsburger and Mr. Dallam, who confirmed this. And, more 3 importantly, we brought to you the affidavit of common law 4 marrlage. ~ J They can point to fiancee here, fiancee 6 there, and I am not disputing that. But we have provided a 7 reasonable explanation for why that occurred. 8 As I said to you in my opening statement, I 9 think the most telling thing is the case law that they are 10 relying upon is the case that Judge Bayley decided where he 11 said an affidavit of common law marriage is only a 12 rebuttable presumption of a common law marriage. But In 13 that case, the gentleman walked into court and said, no, 14 that is not the reason we did that. We did that solely for 15 insurance purposes. 16 What we brought to you was totally different 17 facts. We brought to you an affidavit of common law 18 marriage plus Elizabeth's testimony, plus Janelle's 19 testimony, plus Mr. Dallam's testimony, plus tbe words of 20 David Gross, that card for my wife. I underst~nd that it 21 says -- if you read that closely, what the card said is 22 although we are not technically married, no one can tell me 23 we are not married in our hearts. 24 I submit to you that is the crux of a common 25 law marriage, what is in the people's hearts through words, 102 . . 1 expressions and deeds. And, by all accounts, these were two 2 loving people that did everything for each other, including 3 t~eir own illness. 4 5 6 7 And last but least I would like to point out lS what wasn't brought forward. You have got ~r. Gross to get on the stand who saw him once a month duriGg a very serious illness. How close was he to him to know what was 8 going on? Where is Mary Ellen, where is Anthony? Where lS 9 any other family member to say no, this isn't the case? In 10 fact, what we brought you were cards and letters from their 11 own family members to show that they treated her as David's 12 spouse. 13 So I would ask that you look at the evidence 14 we presented plus the lack of any strong evidence on the 15 other side. 16 MR. SOHONAGE: Thank you. Ms. McDermott. 17 MS. McDERMOTT: Yes. Thank you. 18 I think that the respondents have misstated 19 the law, and if the court will look at our brief and Judge 20 Bayley's decision, you will see that a common law marriaCJe 21 can only be created by the exchanCJe of words in the present 22 tense spoken with a specific purpose that the legal 23 relationship of husband and wife be spoken, or be created 24 through such an exchange. 25 There is absolutely no evidence whatsoever to 103 . . 1 support that there was anyone particular occasion on which L that happened between these two people. Elizabeth Barth 3 hGrself testified to three different occasions. Her first 4 witness that she called besides herself, Ms. A~gsburger, 5 testified to yet another occasion on which she believed that 6 happened. 7 And, in addition to that, there also has to 8 be a reputation and a holding out to the community of 9 yourselves as husbapd and wife. Ms. Barth testified herself 10 that she never held herself out as David Gross's wife, and 11 12 13 that he never held himself out as her husband. There was no intention to create a common law marriage. They were engaged. They regarded themselves as engaged. She 14 testified in her deposition that they were engaged. 15 Yes, they intended to get married at some 16 17 18 point. She said he was divorced when she helped with the death certificate. She said she was his fiancee when she helped with the obituary. It was only when she got a 19 financial stake in the matter that she discovered this 20 theory of common law spouses 21 As to the common law affidavit, she admitted 22 in her deposition that they did that only to put him on her 23 medical insurance when after his accident his medical 24 insurance had run out, which is very similar to the case 25 decided in front of Judge Bayley. And it is also very :04 . . 1 similar to Staudenmayer and some of the other cases cited in 2 our briefs which talk about these no actual proof of 3 anything was required for this. They just signed up for 4 this to get the health insurance. It is a corrU10n thing. 5 And I would just like to again point out to 6 you what I said 1D my opening, these are regarded with 7 strict scrutiny and they are not favored 1n the law, and the 8 reason is because they are fruitful of fraud and perjury. 9 Thank you. 10 MR. SOHONAGE: Ms. Kopecky. 11 MS. KOPECKY: Just a brief follow-up. I 12 would like to ratify what Ms. McDermott has stated 1n he~ 13 closing. I do believe that the burden of proof is on Ms. 14 Barth. I believe that you have to have a -- the case law 1S 15 clear about having to have a present intent in order to 16 declare your love as husband and wife. 17 I think we have four different dates tt3t I " _._ tJ ccunt. Again, Ms. Barth testified in her depoEition that 19 she considered the time they first met as thei~ wedding 20 date, and that 1S the anniversary they celebrated, which was 21 SeDtember of '95. Then aga1n they moved in together 1n 22 March of '96, which was another date that was put on the 2~ -~ affidavit of the common law marriage. Her friend testified 24 here today that they exchanged vows sometime in '98. And 25 then again -- I'm sorry, in 2000. And then she, Ms. Barth 105 . . 1 testified that in 1998, before he had his accident, they had 2 exchanged vows at that time or at least held themselves aut 3 t~at they were engaged and intended to be married at that 4 time. 5 I believe the other family members aren't 6 required to be here because they would have repeated the 7 same thing that their brother Brian did today, that they 8 never believed that Elizabeth Barth was married to their 9 brother David. 10 And, In that regard, I don't think you can 11 find that there is a common law marriage or that Ms. Barth 12 met her burden of proof today. Thank you. 13 MR. SOHONAGE: Very well. Thank you. 14 We do have a couple of questions. One for 15 \/1 I_-I.S. Barth. Mr. Nealon, perhaps you can address this. On 16 the petition for grant of Letters of Administration that was 17 file:] in April of this year, she cites herself as cornmon law 18 wife, but does not list any other heirs. Is t~ere a reason 19 she failed to list other possible heirs, the siblings 20 specifically? I don't know if you were involved at that 21 point. 22 MR. NEALON: I was. But I would think if 23 there were no children, they wouldn't have to list those 24 items. I will be honest with you, my practice is more 25 litigation driven than estate driven. So if there is an ICE . . 1 2 3 error there it is probably my fault. you wouldn't list secondary heirs. I just assumed that MR. SOHONAGE: Okay. 4 It was, you know, you are not going to tell 5 us, but there was no intent I am sure to misle2d the Court 6 into believing 7 MR. NEALON: No, I think we even set out the 8 facts ln the petition. 9 MR. SOHONAGE: I believe you did too. 10 MR. NEALON: Yeah, I found an extra copy for 11 you. 12 MRS. STRASBAUGH: Very good, thank you. 13 MR. NEALON: All I can do is tell you I 14 thought that, in other words, if -- I am a bad example 15 because I am divorced. But let's say when I was married, if 16 I died, my wife would just walk in and say I was the spouse 17 and wouldn't say he's survived by three children as well, or 18 two sisters, for instance. Because they are net of a class 19 that would inherit ahead of her. So if there is a mistake 20 there, it was on my part, the way I understood this had to 21 be filled out. 22 MRS. STRASBAUGH: Very well. Thank you. 23 24 25 MR. SOHONAGE: I do have a question, Ms. Kopecky, for you. Do you know whether or not either of your clients filled out the Social Security form that Mr. Gross 107 . . 1 filed out? 2 MS. KOPECKY: I can tell that you Mary Ellen 3 Brouse did not. I really don't know if Anthony Gross had. 4 MR. SOHONAGE: Was she supplied with one of 5 those forms? 6 MS. KOPECKY: Not that I ever heard. 7 MR. SOHONAGE: So she didn't get one, to your 8 knowledge. Very well. 9 Ms. McDermott, no questions. But you 10 indicated you will get unredacted copies of that deposition. 11 MS. McDERMOTT: Yes, I will -- I have, sir. 12 MR. NEALON: Can you get me copies too when 13 you send them? 14 MS. McDERMOTT: Yes. 15 MR. SOHONAGE: Okay. Ladies and gentlemen, 16 thank you for your time. We will issue a decision to you in 17 written form to counsel of record. 18 (Whereupon, the proceeding was 19 concluded at 4:10 p.m.) 20 21 22 23 24 25 108 . , 1 2 3 4 5 CERTIFICATION 6 I hereby certify that the proce2dings are 7 contained fully and accurately 1n the notes taken by me on 8 the above cause, and that this 1S a correct transcript of 9 same. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 109 BUREAU OF INDIVIDUAL TAXES INHERITANCE TAX DIVISION PO ~OX 280601"" H~~~URG PACf)128-0601 . COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF REVENUE . INHERITANCE TAX STATEMENT OF ACCOUNT REV-l607 EX AFP <l2-D4J LL C) DATE ESTATE OF DATE OF DEATH FILE NUMBER COUNTY ACN 01-03-2005 GROSS 08-17-2003 21 03-1065 CUMBERLAND 03137535 DAVID M CJ"l :~,~ a c.c LLJ :-;~: U :t L.,. ELI~ABETH~C~ARTH 16&-"COLD Sl>R:JNGS DR MA~HESTER C) PA Amount Remitted 17345 MAKE CHECK PAYABLE AND REMIT PAYMENT TO: REGISTER OF WILLS CUMBERLAND CO COURT HOUSE CARLISLE, PA 17013 NOTE: To insure proper credit to your account, submit the upper portion of this form with your tax payment. CUT ALONG THIS LINE ~ RETAIN LOWER PORTION FOR YOUR RECORDS ~ Rt"=r&~~.!x..AFFi.r~l~.~~'........;...iNHlnfiTA~cE..fA)c.stA.fE~Elff.b.F.lcc:oO~;r...iE..........._.......... ESTATE OF GROSS DAVID M FILE NO.21 03-1065 ACN 03137535 DATE 01-03-2005 THIS STATEMENT IS PROVIDED TO ADVISE OF THE CURRENT STATUS OF THE STATED ACN IN THE NAMED ESTATE. SHOWN BELOW IS A SUMMARY OF THE PRINCIPAL TAX DUE, APPLICATION OF ALL PAYMENTS, THE CURRENT BALANCE, AND, IF APPLICABLE, A PROJECTED INTEREST FIGURE. DATE OF LAST ASSESSMENT OR RECORD ADJUSTMENT: 09-20-2004 PRINCIPAL TAX DUE:, 82.02 PAYMENTS (TAX CREDITS): PAYMENT RECEIPT DISCOUNT (+) AMOUNT PAID DATE NUMBER INTEREST/PEN PAID (-) 10-26-2004 CD004570 1.21- 83.23 TOTAL TAX CREDIT 82.02 BALANCE OF TAX DUE .00 INTEREST AND PEN. .25 IF PAID AFTER THIS DATE, SEE REVERSE TOTAL DUE .25 If SIDE FOR CALCULATION OF ADDITIONAL INTEREST. ( IF TOTAL DUE IS LESS THAN $1, NO PAYMENT IS REQUIRED. , .'f, --' ,~\\ IF TOTAL DUE IS REFLECTED AS A "CREDIT" (CR1, YOU MAY BE DUE A REFUND. SEE REVERSE SIDE OF THIS FORM FOR INSTRUCTIONS. 1 33 r .( ,;> 1,\ COMMONWEALTH OF PENNSYLVANIA . DEPARTMENT OF REVENUE . BUREAU OF INDIVIDUAL ~~~:W:r:T\ n' <r\r: ell: INHERITANCE TAX ~~H~~~T~~~~O~AX DIVISION rt.l..A"L_- ,," i !\..ll... I STATEMENT OF ACCOUNT HARRISBURG, PA 17128-0601 REV.-I'D7 EX AFP (09-04> 20011 DEe 29 t3.i'\ 9: 12 DATE ESTATE OF DATE OF DEATH FILE NUMBER COUNTY ACN 12-13-2004 GROSS 08-17-2003 21 03-1065 CUMBERLAND 03137535 DAVID M ('LEr-", (, ;.~., 1:- V _Ili\ _.Il ORpUI\:\J'c.' en: 10-, i i if Ie: ~ \..1 "..... '_ r I ELIZABETH tt@~R.n~', ' P\ 165 COLD SPRINGS DR MANCHESTER PA 17345 Amount Remitted MAKE CHECK PAYABLE AND REMIT PAYMENT TO: REGISTER OF WILLS CUMBERLAND CO COURT HOUSE CARLISLE, PA 17013 NOTE: To insure proper credit to your account, submit the upper portion of this form with your tax payment. CUT ALONG THIS LINE ~ RETAIN LOWER PORTION FOR YOUR RECORDS ...... RE\;~rg~~.EX..AFp..r~l~.~~'........;...iNH1rRi~1rNcE..flx..sTl.TEME.Nf.o.F.ACc:OONir...ir...................... ESTATE OF GROSS DAVID M FILE NO.21 03-1065 ACN 03137535 DATE 12-13-2004 THIS STATEMENT IS PROVIDED TO ADVISE OF THE CURRENT STATUS OF THE STATED ACN IN THE NAMED ESTATE. SHOWN BELOW IS A SUMMARY OF THE PRINCIPAL TAX DUE, APPLICATION OF ALL PAYMENTS, THE CURRENT BALANCE, AND, IF APPLICABLE, A PROJECTED INTEREST FIGURE. DATE OF LAST ASSESSMENT OR RECORD ADJUSTMENT: 09-20-2004 PRINCIPAL TAX DUE:. 82.02 PAYMENTS (TAX CREDITS): PAYMENT DATE 10-26-2004 RECEIPT NUMBER '-.. CDO 0457 0 DISCOUNT (+) INTEREST/PEN PAID (-) 1.21- AMOUNT PAID 83.23 TOTAL TAX CREDIT 82.02 BALANCE OF TAX DUE .00 INTEREST AND PEN. .25 * IF PAID AFTER THIS DATE, SEE REVERSE SIDE FOR CALCULATION OF ADDITIONAL INTEREST. TOTAL DUE .25 I IF TOTAL DUE IS LESS THAN $1, NO PAYMENT IS REQUIRED. IF TOTAL DUE IS REFLECTED AS A "CREDIT" ICR), YOU MAY BE DUE A REFUND. SEE REVERSE SIDE OF THIS FORM FOR INSTRUCTIONS. ) 3~ <~ q.:-~ . . 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 TO: THE HONORABLE GLENDA FARNER STRASBAUGH, Register of Wills; THE HONORABLE JUDGE HOFFER, P.J. NOTICE OF APPEAL. PETITION FOR REVIEW AND REQUEST FOR EVIDENTIARY HEARING FILED BY BRIAN JOHN GROSS AND NOW, comes Appellant, Brian John Gross, by and through his attorneys, Post & Schell, P.C., and files this Petition for Review, Notice of Appeal and Request for Evidentiary Hearing of Order of November 30, 2004, of the Register of Wills, and represents to the Court as follows: 1. Petitioner/Appellant Brian John Gross is the brother of decedent, David M. Gross. 2. On May 11, 2004, Petitioner filed a Petition for Removal of Administratrix and Revocation of Letters of Administration pursuant to 20 Pa. C.S. SS3181 and 3182. ';... J 31 . . 3. On November 8, 2004, the Honorable Judge Hoffer met with counsel in Chambers and determined to remand the Petition for Revocation of Letters to The Honorable Glenda Farner Strasbaugh, Register of Wills, for hearing on the issue of revocation of letters, and declined to hear the issue of removal pursuant to 20 Pa. C.S.A S3182. 4. A hearing was held before the Honorable Glenda Farner Strasbaugh, Register of Wills, on November 22, 2004. Subsequent to that hearing, the Honorable Glenda Farner Strasbaugh issued an Order without opinion, declining to revoke the Letters of Administration, without appending any reasons for the decision to the opinion. A true and correct copy of the Order of the Honorable Glenda Farner Strasbaugh, Register of Wills, is incorporated hereby and attached hereto as Exhibit "A" 5. Petitioner Brian John Gross now appeals and petitions for review of this Order, as well as restates his request that pursuant to 20 Pa. C.S.A S3182, this Court hold an evidentiary hearing as to whether grounds for removal of the Administratrix exist. 6. Elizabeth M. Barth, current Administratrix of the Estate should be removed since she was not entitled to the grant of letters pursuant to 20 Pa. C.S.A SS3155 and 3181. 7. The evidence does not establish any basis for Elizabeth Barth's contention that she was the common law wife of the late David Gross. 8. Pennsylvania Courts view claims of common law marriage with hostility and although these claims are tolerated, they are not encouraged. . . 9. In Pennsylvania, it is consistently held that a common law marriage can only be created by the exchange of words in the present tense spoken with a specific purpose that the legal relationship of husband and wife be created by such an exchange. 10. The Courts have also required proof of constant co-habitation. 11. The Courts have also required clear and convincing evidence of common law marriage. 12. Ms. Barth has produced nothing to establish by any evidentiary standard, that she was the common law wife of David M. Gross. 13. 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 "B." 14. 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 "C." 15. 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. 16. A true and correct copy of a letter from Father Wallace E. Sawdy indicating that Barth identified herself as David Gross' fiance to him is incorporated hereby and attached hereto as Exhibit "D." 17. At the deposition of David Gross taken in his personal injury lawsuit in Dauphin County, he indicated that Elizabeth Barth was his fiance. . . 18. He further indicated that Elizabeth Barth has never been married. 19. David Gross further testified his first and only marriage ended in divorce. True and correct copies of Pages 6, 7,8, and 9 of the deposition of David Gross taken on May 12, 2000 are incorporated hereby and attached hereto as Exhibit "E." 20. David M. Gross caused an engagement announcement for himself and Elizabeth Barth to be placed in the Harrisburg Patriot News. A true and correct copy of that announcement is incorporated hereby and attached hereto as Exhibit "F." That announcement indicates that the two were to be married in the summer of 2004. 21. The burden to prove a common law marriage rests on the proponent of the marriage, and such a claim must be reviewed with strict scrutiny. 22. In Pennsylvania, common law marriages are tolerated but not encouraged, and claims for the existence of common law marriage present a fruitful source of perjury and fraud. 23. While an Affidavit of Common Law Marriage is admissible and probative evidence, it is not irrebutable evidence. 24. A litigant is permitted to contradict by other evidence any such certificate. 25. 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. 26. 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. . . 27. The current Administratrix has no interest in the Estate and has only assumed its administration to waste or mismanage the Estate. 28. 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. 29. The Estate of David Gross is likely to be jeopardized by continuance of Elizabeth Barth as Administratrix of the Estate. 30. The Register of Wills' decision not to revoke the Letters of Administration was not founded on rational evidence and was an abuse of discretion. 31. Indeed, Ms. Barth acknowledged at the hearing in front of the Honorable Register of Wills that she and David Gross never used the terms husband and wife to refer to one another. 32. Revocation of Letters has been held by Pennsylvania Courts to be proper where the testimony showed that only a more or less ill-defined and irregular co- habitation existed and sufficient credible evidence established that no common law marriage existed. In Re: Griffins Estate, 98 Montg. 272 (1974). 33. Additionally, the Administratrix should be removed since her intention will be to waste or mismanage the Estate given that she will distribute it to herself to the exclusion of the rightful heirs. 34. Additionally, it is well established that when there has been a fraud on the Court, removal of an Administratrix is proper. In Re: Niles Estate, 27 FiduG.Rep. 289 (1977). . . WHEREFORE, Petitioner Brian John Gross respectfully requests this Honorable Court to review the decision of the Register of Wills and schedule an evidentiary hearing in this matter de novo regarding the issues associated with the Petition for Removal of the Administratrix. Respectfully submitted, POST & SCHELL, P.C. f~c . ~c~ PAULA J. M8'DERMOTT, ESQUIRE Attorney I.D. # 46664 240 Grandview Avenue Camp Hill, PA 17011 (717) 612-6012 Attorneys for Appellant/Petitioner, Brian John Gross Date: December 1 ,2004 EXHIBIT A . . : BEFORE THE REGISTER OF WILLS OF : CUMBERLAND COUNTY, PENNSYLVANIA ESTATE OF DAVID M. GROSS, Deceased : NO. 21-03-1065 ORDER OF REGISTER OF Wll.,LS IN RE: Petition for Revocation of Letters and Removal of Administratrix AND NOW, this 30th day of November, 2004, after consideration of the testimony in the matter of the above captioned estate, taken on November 22, 2004, it is hereby ordered that Letters of Administration in this estate previously issued to Elizabeth Barth shall remain as issued and Elizabeth Barth shall NOT be removed as Administratrix of the estate of David M. Gross. November 30, 2004 Date ~.- ,..- '- ~, ~- . 2 C: <::::: w --' :~ 0"" ,II. TRUE copy FROM RECORD In Testimony wt1erof. I hereunto set my ha~d and the seal j.a f'S~i!~C' PA Th's, ay . 2 '. ~l1 Clerk of the Orphans Court '1,1-., Cumberland County "-"lI ~~ EXHIBIT B Th,~ is to .ccrti.fy char c~e. inform~tiAe~t' given is correctly C(ll'i7-d fr~?'l all ,orig.e~ciiic~1(f tlf dead, d.u!l': filed viirh IW a.<, Lo-:a1 RegIstrar. The ongma) cernfi~t!J he forwarded to the: Scare V Ita/ ".ccor .,)[tIU: For permanenl IJlrng. WARNING: It is illegal to duplicate this copy by photostat or photograph. A" No. ,rri~ii;',,:'?;;,.>.-. /"il~ \\\.lh.N Pfi.~'<; A.\"l..~:....,.--- .--...~r4~"'=2... IiI. ~I''' ,." . - :" _ '.c.I)~-"0 (;:'~/ilI.1 ," ;~,~ \~"j_ ~~' \::~ ~ ~ I;b:~ ',. . ~ ~*. "I/*~ :.*. l,....r..~\' .~+:- ;.;:;,.;. .:' _ _ .,' .~~i~;:t~~~l "'"., '?IMf.:NT'~\ ~~.'I~ . <"-f~~~,;,,,_:~t;I!!.'!'! " Fee for this certificate, $2.00 ,.-. ("'I -(' C'.'\ ,I'I r-o -? r~' r" J., 1. tl r t) --_.~.> "cl_2~C-~:::~_._ .__t;__!f(' "lOS.lot3,,".2II'7 COMMONWEALTH OF PENNSYLVANIA. DEPARTMENT OF HEALlli . VITAL RECORDS CERTIFICATE OF DEATH ITATE FU NUWIEII. TV'EJPRIHT IN . 111tMA.NEHT ILACK 1Hl\ ::; . ~ j :1 o.o.TE OF BIRTH 1-, Oey, Y-I -0 ::::"'0 RACE.__.-._.. (SpocIy) WH iTE 10. SURVlVWG Sl'OUSE ...................1 lwI <Il'bOn 26. M.....-a.,....,......... :~ .- : 0ftHl -.1d ..111 h\J~ ~ -:. _lIyht__ ....... Io..,;ng 10_ . _. E_ UHOEllL YlNa CAUSE CDiMuo or Iojury ...-- ~on_lh)LUT WI>,S N< AUTOPSY WERE MlTOPSY FINlllNGS PElIFOlWEO? ...V....LABLE PRIOR TO CO/,IPLflION Of CAUSE Of OEA TH? E DUE TO fOR AS A CONIEOUEHQ OFt: o AS A COHUOUEHCE t: IoIAHNER Of OEATli NoD ......... -- -. Qg o o 0.0. TE Of INJURY _llor.Y"*, TIME OF INJURY INJURY ... T WORK1 OESCRIBE HOW INJURY OCCURRED. Y.. 0 No~ YuO - PendInG ....."".1IOn Coued not be de*,,*," o o -0*0 O )0.. )CIb. a.c. )Oc. PlACE Of INJURy. ...._....... -. Ia"*y.""" ........ -- ISPeofvI 20e. 20. W~ ~ .r-I 2-<. EXHIBIT C . . ':~'.' q' .~.:.'-'~l ........., .~~~1~. :...~~tt. : . r :(~,'X:,. ' .::t(~:1. ". ,);;,j-:: , .. ~ . L..... TUESDA V, AUGUST 19, 2001 ~ David M. Gross DaVid M. Gl"OSs, 45, of CmnJ Hill, diGd Sunday. August 17 2003 in the Holy Spirit Hospital. Camp Hill. ::: Rom in Han-isburg, h~ sr~ uated from Central Dauphir. High School, ClaSs of 1975; He haa vari- . . ous sales posi. tions in the Harri.sburg area, Was a lo- cal Model, :md a former em. ployee of the . Harrisburg GROSS - State Hospital. Ee was kind. sensitive and loved an peoPle:': He Was a member of St. Cath- erine LaboUre Catholic Church, St. Joseph CatholIc Church. Mechanicsburg, Knights of C0- lumbUs and Cosmopolitan In- ternational. Surviving ~e his ~other, Ra- mona B. Zelinski Gross of Hanisb~g: a brother; Anthony Gross of'PhUadelphia; a sister, Mary Ellen B.ouse of MarysV:ule; a brother, Brian Gross of D.i.lkburg; nieoos, Dan- ielle BroUSe, Celeste and Do1lll. nque Gross; a nephew; Joel GrOSSj his fUlIlcee', Elizabeth I Barth. with whom he lived; nu- merous aunts, uncles and. COllS- ins. Mass of Christian Burial w.ill be celebrated at 11 a.m. Thurs- /' day, at st. Catherine Labo-grEi Catholic Church, .400Q Derry Strflet. Harrisburg. Burial' WI be in Holy Cross Cemetery. Viewing will be held from..7,:.9 p.m. Wednesday, at the Ne.W. Funeral Home. 8501 DerAY' Street; Harrisburg. Recitat;,Qn, of tile Rosary will .be at 8.~ p.m.Wednesdayatthefun~ home. . Memorial contributions may be made to the Disabled Ameri. can Veterans, 4219 Trlncl~e Road, Camp H1ll, PA 17011. '.-' WWW.neill.fh.com '. ''C I www.pennlive.coin/obits-" ',;'.' , ."',V"''',' .:,~..~qt,;/.i .r,~::~~~. :~, ~:r, .~t:'~~~"~' ,t~~ '~~~ EXHIBIT D .' . Father Wallace E. Sawdy 115 North Street Apartment 109 Harrisburg, P A 17101 Phone: (717) 238-5380 . August 25, 2003 Hy dear ~'lrs. Gross, I I was deeply moved by the telephone call I received from David's fiance" infi:>rming 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,coniing so.. soon after your husband' s deatlihasL brought you" a double;:'meastire;~.of sorrow. I returned .homefron .the'-rehab hospital:'Y,:~st;~td,ay.i,U+his morn- ing I offeredmy'Nass for David and his father~' . As I recall her telephone conversation, David's fiance identified herself as Elizabeth Vars. Was she a relative of Elizabeth "Sarge" V?-rs who died about twenty years ago? I knew her well from her many trips to Holy Spirit Hospital when I was Chaplain~there. I attended her funeral service at the Neumeyer Funera~ Home at Second and Calder Streets. Again, mt deep~st sympathy to.you and Elizabeth. May God comfort you in your sorrowI . In His love, #8 "'~t~.~j~~~l;:i:, , {'::-=.. / ~l,';c:;;:i: .:<~' -'-; -li ..... ., '''. < . '. . ~$~'~-' " ~ ~~iI~,t ",:~!~~t.. {;. (:':.l~~f;:~r .........., ,- ..<~~L . . ':":>':2~i{~;l".\\', . #.' Jf'."'''--r" ~",,"~P'r~./C.......,.,.,I'.J_'h . ., -". ~ '~~~~~:._';~~..;:.:'~~;~t~~~~:~:~., .r:; ,;" {:.~, ~. ~~ :01' ..i" -"~ ...~ EXHIBIT E " . . ~(Q)[PY DAVID GROSS, PLAINTIFF IN THE COURT OF COMMON PLEF6S 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, P.C. 320 MARKET STREET HARRISBURG, PENNSYLVANIA APPEARANCES: LITVIN, BLUMBERG, MATUSOW & YOUNG BY: DONALD E. MATUSOW, ESQUIRE FREDRIC S. EISENBERG, ESQUIRE FOR - PLAINTIFF GOLDBERG, KATZMAN & pHIPMAN, P.C. BY: JOHN A. STATLER, ESQUIRE FOR - DEFENDANT 2080 Linglesrown Road · Suite 103 · Harrisburg; PA 17110 717.540.0220 · fax 717,540.0221 · Lancaster 717.393.5101 DA VID GROSS MAY 12,2000 . Multi-Page™ ..., Page 6 1 A We moved into there the 4th of July weekend, I 2 ]998. 2 3 Q So it's coming up on two years? 3 4 A Yes. 4 5 Q And where did you and Elizabeth live before that? 5 6 A We lived at 2524 South Market Street, 6 7 Mechanicsburg. 7 8 Q How long has Elizabeth Barth been your fiancee? 8 9 A Since early 1996. 9 10 Q Okay. How long have you been dating Elizabeth 10 II Barth? II 12 A Since 1995. 12 13 Q Is she employed? 13 14 A Yes. 14 15 Q Where does she work? 15 16 A Capital Recovery Associates. 16 17 Q Is that a collection agency? 17 18 A Yes. 18 19 Q And what does she do for them? 19 20 A Oh, she just got a promotion. She's an upper 20 21 level manager. 21 22 Q How long has she worked for Capital Recovery 22 23 Associates? 23 24 A Either earlier this year or late last year, 24 25 somewhere around the holidays. 25 Page 7 1 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 tht:m') 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 for White Pines Banquet and Catering. 13 Q And what did she do for them? 14 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? 18 MR MAruSOW: 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. MAruSOW: 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 Page 8 been married? A Yes. Q Okay. When were you married? A November the 9th, 19~5. Q And did that marriage end in divorce? A Yes. Q When were you divorced? A In the spring of either '91 or '92. Q Was that your first and only marriage? A Yes. Q And who were you married to? A Wendy Kay. Q K as in the initial K? A K-a-y. Do you want her maiden name? Q Yes. A Felker, F-e-I-k-e-r. Q Okay. Is she remarried? A I'm not sure. Q Did you have any children to that marriage? A No. Q Do you have any children? A No. 9 Do you know where Wendy Kay Felker lives? A Presently? Q Yes. Page 9 A Somewhere in York County. Q Is she employed? A 1 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 1 believe she worked for an 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I 2 3 4 5 Insurance company. Q Like in an agency or -- A She was a clerk in an insurance company. That's all I know. Q You don't know what insunmce company it was? A No. It's been awhile, an~ 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 Conununity College in 1976. Q Okay. HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220\717- 393-510 I EXHIBIT F . . . . 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. I " / ' ( ,.( . \ ~) '."'_ I /' " . ,,\, '-,. / Dena J. Stump, Secretary Date: DecemberC{ , 2004 " . . : BEFORE THE REGISTER OF WILLS OF : CUMBERLAND COUNTY, PENNSYLVANIA EST ATE OF DAVID M. GROSS, Deceased : NO. 21-03-1065 ORDER OF REGISTER OF WILLS IN RE: Petition for Revocation of Letters and Removal of Administratrix AND NOW, this 30th day of November, 2004, after consideration of the testimony in the matter of the above captioned estate, taken on November 22, 2004, it is hereby ordered that Letters of Administration in this estate previously issued to Elizabeth Barth shall remain as issued and Elizabeth Barth shall NOT be removed as Administratrix ofthe estate of David M. Gross. November 30, 2004 Date :$ {i/ jd ('I I fr ,1\tULd tAj U)JJ(~Jf(j:t jD t)i'"it (('ll f(CLJ{(/((J J"ICj)((l/I/(.{j. ( . r I </''( A J 30 . . CITATION Orphans' Court Division Court of Common Pleas Cumberland County, Pennsylvania IN RE: Estate of David M. Gross Deceased No. 21-03-1065 COMMOJ\;WEAL TH OF PENNSYLVANIA SS. COUNTY OF CUMBERLAND TO: James Nealon, III, Esq., Counsel for Elizabeth Barth Paula .1. McDermott, Esq., Counsel for Brian .1. Gross Johnna Kopecky, Esq, Counsel for Maryellen Brouse Anthony .1. Gross GREETINGS: THE REGISTER OF WILLS OF CUMBERLAND COUNTY, PENNSYLVANIA COMMANDS that you, laying aside all business and excuses whatsoever, to be and appear before her in the 5th Floor Hearing Room of the New Courthouse at One Courthouse Square, Carlisle, Pennsylvania, on the 2211L1 day of November, 2004, at I :30 P.M., for a hearing on the matter of the Estate of David M. Gross, now deceased, docketed to 21-03-1065. DA TE: November 10,2004 Glenda Farner Strasbaugh Register of Wills Cumberland County Il)lr? O\t~L~ ,::'-u--r rLtUl ~Y1--(luJ-j ,...-1-" (~Lvu-<... ILLG-.... ~q -1\:.~ .. . IN RE: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNA. ESTATE OF DAVID M. GROSS ORPHANS' COURT 21-03-1065 ORPHANS ORDER OF COURT AND NOW, November 8, 2004, the matter has been called for a hearing on petitioner's request that the Letters of Administration in this estate issued to Elizabeth Barth be revoked under Section 3181 of the Probate Estates and Fiduciary's Code, and after conferring with counsel at a pre- hearing conference, and the Court determining that the Register of Wills has the exclusive right of original jurisdiction in this matter, and the Court declining jurisdiction under Section 3182 of the Probate Estates and Fiduciary's Code, the matter is referred to the Register of Wills for hearing. The Court retains jurisdiction, however, for any ruling on Petitioner's Motion for Sanctions in Discovery. P.J. Paula J. McDermott, Esquire 240 Grandview Avenue Camp Hill, PA 17011 James Nealon, Esquire Nealon & Gover 2411 North Front Street Harrisburg, PA 17110 Cumberland County Register of Wills