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George B. Faller, Jr., Esquire
MARTSON DEARDORFF WILLIAMS & OTTO
LD. No. 49813
10 East High Street
Carlisle, PA 17013
(717) 243-3341
Attorneys for Estate of Linwood B. Phillips, Jr.
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IN RE: : IN THE COURT OF COMMON PLEAS OF
ESTATE OF LINWOOD B. PHILLIPS, JR.,: CUMBERLAND COUNTY, PENNSYLVANIA
Deceased,
ALICE R. PHILLIPS,
Petitioner
: ORPHANS' COURT DIVISION
v.
: NO. 21-06-0122
ROBERT G. FREY,
Respondent.
PRELIMINARY OBJECTIONS AND MOTION TO DISMISS
AND NOW, comes the Estate of Linwood B. Phillips, Jr., by and through their counsel,
MARTSON DEARDORFF WILLIAMS & OTTO, sets forth the following:
1. Petitioner Alice R. Phillips (petitioner) has filed a "Petition for Relief Citing Undue Influence
and Tortious Interference with Testamentary Expectancy."
2. Petitioner's claim of Tortious Interference should be dismissed for the following reasons:
a. The claim of Tortious Interference with Testamentary Expectancy is a separate
claim sounding in tort and is not an action subject to the jurisdiction of the Orphan's Court Division.
b. The attemptto file a Claim for Tortious Interference with Testamentary Expectancy
with the Register of Wills via the filing of a Petition and Rule to Show Cause is in violation of Pennsylvania
Rule of Civil Procedure 1007 which mandates that such an action must be filed by Praecipe for a Writ of
Summons or Complaint.
3. The Petition for Relief Citing Undue Influence should be dismissed for the following reasons:
a. The Petition is defective because it suggests a Citation should only be entered
against the four named Respondents. However, all parties in interest as set forth in paragraph 85 ofthe
Petition should be issued a citation and allowed to respond.
b. Petitioner has not filed any Appeal from Probate ofthe will and codicils set froth
in the Petition, and said Appeal is a prerequisite to a Petition requesting a Citation be issued on all
interested parties.
WHEREFORE, the Estate of Linwood B. Phillips, Jr., requests your Honorable Court to dismiss
the Petition for Relief Citing Undue Influence and Tortious Interference with Testamentary Expectancy filed
by Alice R. Phillips.
Date: November 6, 2006
Attorneys for Estate of Linwood B. Phillips, Jr.
CERTIFICATE OF SERVICE
I, Melissa A. Scholly, an authorized agent of Marts on Deardorff Williams & Otto, hereby certify
that a copy ofthe foregoing Defendant's Preliminary Obj ections and Motion to Dismiss was served this
date by depositing same in the Post Office at Carlisle, P A, first class mail, postage prepaid, addressed as
follows:
Neil Wamer Yahn, Esquire
JAMES, SMITH, DIETTRICK & CONNELLY, LLP
P.O. Box 650
Hershey, P A 17033
Hubert X. Gilroy, Esquire
BROUJOS & GILROY, P.C.
4 North Hanover Street
Carlisle, P A 17013
MARTS ON DEARDORFF WILLIAMS & OTTO
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By \
Melissa A. Scholly
Ten East High Street
Carlisle, P A 17013
(717) 243-3341
Dated: November 6, 2006