HomeMy WebLinkAbout11-08-06
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYL VANIA
ORPHANS' COURT DIVISION
MICHELLE ANGELA FOGLE,
Movant
Estate No. 21-05-0488
vs.
MAGDA FOGLE, DECEASED
MARK ANDREAS FOGLE, CO-
ADMINISTRATOR, and TERRY
WILLIAM FOGLE, CO-ADMINISTRA- :
TOR, and EDWARD LEE FOGLE, CO-
ADMINISTRATOR,
ESTATE OF MAGDA FOGLE,
DECEASED,
Respondents
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MOTION FOR ADJUDICATION OF CONTEMPT AND SANCTIONS FOR
WILLFUL DISOBEY ANCE OF A COURT ORDER
Movant, Michelle Angela Fogle (hereinafter "Movant"), hereby files this Motion
for Adjudication of Contempt and Sanctions respectfully stating in support thereof the
following:
1. Movant in the above captioned proceeding is the legally adopted daughter of
Magda Fogle, Deceased. See Certificate of Adoption attached hereto as
Exhibit "A."
2. Respondents are the biological sons of the Decedent and are the duly
appointed Co-Administrators of the Estate of Magda Fogle, deceased. A copy
of the Decree of Probate and Grant of Letters is attached hereto as Exhibit
"B. "
3. The Decedent, Magda Fogle, died testate on May 8, 2005. A copy of the
Decedent's Last Will and Testament is attached hereto as Exhibit "c."
.'
4. Upon written demand of the Cumberland County Register of Wills dated
August 15, 2005, Respondents filed a Certification of Notice Under Rule
5.6(a) on September 2, 2005. Copies of said correspondence and Certificate
of Notice Under Rule 5.6(a) are attached hereto as Exhibits "D" and "E"
respectively.
5. Movant never received a Notification of Beneficial Interest from Respondents
as required under Orphans' Court Rule 5.6(a).
6. It is believed and therefore averred that no advertisements of the Estate of
Magda Fogle have been undertaken by the Respondents as required by 20 Pa.
C.S.A. 9 3162.
7. No inventory has been filed for the Estate of Magda Fogle.
8. It is further believed and therefore averred that real estate belonging to the
Decedent was sold by Respondents on or about September 14, 2005 for a
gross sale price of One Hundred Seventy-One Thousand Nine Hundred
($171,900.00) Dollars. A copy of the recorded Administrator's Deed is
attached hereto as Exhibit "F."
9. It is believed and therefore averred that Respondents' failure to notify Movant
of a potential beneficial interest in Decedent's estate coupled with
Respondents' failure to respond to Movant's written demands for status
reports on the administration of Decedent's estate indicates Respondents'
intent to exclude Movant from an equal distribution of the estate of Decedent.
10. When multiple attempts to contact Respondents by written correspondence
and certified mailings yielded no response, Plaintiff initiated this action by
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filing a Petition for Citation to Show Cause Why an Account Should Not Be
Filed in Accordance with 20 Pa.C.S.A. ~ 3501.1 with the Cumberland County
Court of Common Pleas, Orphans' Court Divisions on May 9, 2006.
11. Respondents failed to provide any responsive pleading, and thereafter on June
28, 2006, this honorable Court, in response to Plaintiff's Petition for Order to
File an Account in Accordance with 20 Pa. CSA ~ 3501.1, issued an Order
compelling the Respondents to file an accounting within thirty (30) days after
personal service of the order upon them.
12. Personal service upon Respondents Mark Andreas Fogle and Edward Lee
Fogle could not be achieved by certified mail insofar as all certified mail
deliveries were refused. See attached copies of unclaimed certified mailings
and unexecuted return receipts attached hereto as Exhibit "G."
13. At the direction of this honorable Court, on or about July 19, 2006, the
Cumberland County Register of Wills re-mailed copies of the June 28, 2006
Order to Respondents Mark Andreas Fogle and Edward Lee Fogle by fi.rst
class mail to establish service upon them.
14. Upon the allowance of three business days for delivery of the first class
mailing, the date of August 22, 2006 was established as the deadline for
Respondents to comply with this Court's Order to file and accounting in the
matter of the Estate of Magda Fogle.
15. Respondents, by willful conduct, have shown a wanton disregard for the
Order of Judge Oler dated June 28,2006, by failing and/or refusing to file any
accounting of their administration of the Estate of Magda Fogle.
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16. Respondent's vexatious conduct has been in total disregard for the Court's
authority and similar conduct has taken place previously in this proceeding as
Respondents disregarded this Court's Citation To Show Cause Why an
Account Should Not Be Filed in Accordance with 20 Pa. C.S.A. 9 3501.1.
17. Under Pa.C.S.A. S 4132, entitled "Attachment and Summary Punishment for
Contempts", Movant moves this Court for the relief set forth infra due to
Respondents' repeated failure to accept service of this honorable Courts'
Decrees and Respondents' willful disobeyance of this Court's Order dated
June 28, 2006.
18. Pa. R.C.P. 4132 permits the Court, when acting under subdivision (2) of the
rule, to enter an order imposing punishment for contempt.
19. Respondents' conduct has frustrated Movant's efforts to proceed m this
action.
20. Respondents' continued egregious conduct has left Movant no alternative but
to file this Motion for Adjudication of Contempt.
21. Due to Respondents' willful conduct in complete disregard for the authority of
this Court, Movant now seeks to have this Court find Respondents in
contempt of its Order; requests that this Court impose punishment upon
Defendant for contempt to the greatest extent permissible under the law;
schedule a hearing on the instant matter requiring the attendance of
Respondents; order Respondents to pay Movant's costs, expenses, reasonable
attorney's fees in preparing and presenting this Motion amounting to Five
Hundred and Fifteen and 00/100 ($515.00) Dollars; order Respondents to pay
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Movant's prior attorney fees expended to date in acquiring an accounting of
Respondents' administration of the Estate of Magda Fogle in the amount of
Nineteen Hundred and Eighty-Two 00/100 ($1,982.00) Dollars; and grant
such other relief as this Court deems just and proper.
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WHEREFORE, Movant, Michelle Angela Fogle respectfully requests that this
Honorable Court find Respondents in contempt; impose punishment upon Respondents
for contempt to the greatest extent permissible under the law; order Respondents to pay
Plaintiffs costs, expenses, reasonable attorney's fees amounting to Five Hundred and
Fifteen and 00/100 ($515.00) in preparing and presenting this Motion and prior attorney's
fees amounting to Nineteen Hundred and Eighty-Two and 00/100 ($1,982.00) Dollars
expended by Movant in pursuit of an accounting of Respondent's administration of the
Estate of Magda Fogle; and grant such relief as this Court deems just and proper.
Respectfully submitted,
LA W OFFICES OF CRAIG A. DIEHL
Dated: J 1- g () &
By:
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Shelly . Ku el, Esquire
Supreme Court ID No. 64485
3464 Trindle Road
Camp Hill, PA 17011-4436
Craig A. Diehl, Esquire
Supreme Court ID No. 58201
3464 Trindle Road
Camp Hill, PA 17011-4436
(717) 763-7613
Counsel for Movant
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No. 1J-D5-01t~
Estate of
OF PROBATE AND GRANT OF LETTE
AND NOW A'1.31 p05 . in consideration of tJe petition on
the reverse side hereof, atisractory proof having been preseuted before me, I
IT is DECREED that t e instruroent(s) date' - 23 - I 1
described therein be a tted to probate and filed of record as the last will of
ffiA[; ~
F D
f4:rW ARb l.f;!; Yo LE:
. R~ster of Willi Pf1V rn
FES
Probate, Letters, Etc. ......... $ 'luO.au
Short Certificates( (Q) . . . . . . . . .. $ 24 ,(TO
'Re:a l:l.aeiati~ :~'lIl,...h. ....... $ ~ 5, 00
A .....JCP sib. 00
TO L _ $ 314.(fV
Filed .. RJ~ .I.Q5... ...................
ATTORNEY (Su-p. Ct. 1.1 No.)
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PHONE
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WILL OF
MAGDA FOGLE
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I, MAG A FOGLE, of Upper Allen Township,
Pennsylvania~ de lare the following to be my will:
County,
FIRST: I revoke all wills and codicils heretofore made by
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me.
of my estate, re
he shall survive
me.
I direct that my just debts and fune~al expenses
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I devise, bequeath and appoint all ofl the residue
personal, to my husband, LUTHER ~. FOGLE, if
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If he shall not survive me, I devise~ bequeath
f said residuary estate, real and persrnal, in
he children, namely, TERRY WILLIAM, EDWARD LEE and
s practicable after my decease.
SECOND
be paid as soon
THIRD:
FOURTH
and appoint all
equal shares to
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MARK ANDREAS, in addition to any children of mine herearter born.
FIFTH: The share of any distributee hereunder who shall
be a minor shall be held in trust for such minor by thel Trustee
hereinafter name , to manage, invest, reinvest and to p~y to or
apply for the us of such minor from time to time such ortions or
all of the incom and principal as the Trustee shall co sider nec-
essary for the rn intenance in health and education (ine' uding
college or techn~cal training as appropriate) of the mihor, and to
distribute to SU1h minor when the minor attains majority, the re-
maining assets 01 the trust, if any.
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MAE E. RUDY, Ex1cutors.
serve or qUalif~ as such, I
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I appoint the said I. RUSSELL RUDY rnd MAE E.
RUDY, Trustees of the trusts herein created. Should ei~her of them
cease or fail tOt I serve or qualify as such Trustees, the other shall
be or continue a sole Trustee. I
IN WI~ESS WHEREOF, I, the said MAGDA FOGLE, ~erewith set
my hand and seallto this my last will, typewritten on t~o (2) sheets
of paper (inCIUdlng the attestation clause and signatur~ of wit-
nesses) upon one of which I have also written my nhme this
7-;;~ dayof', Nineteen Hundr+ and Sixty-
Four. I
,110 tp:(-I Fe - 1
MAGDA ~~
as such, I apPoiht I. RUSSELL RUDY and
Should either orrthem cease or fail to
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appoint the other sole Executor.
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SEVENTk:
(SEAL)
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On the . , 196~, MAGDA
FOGLE declared t I us, the undersig ed, that the foregoing instru-
ment was her las will, and she requested us to act as o/itnesses to
the same and to er signature thereon. She thereupon stgned said
will in our pres nee, we being present at the same time~ And we
now, at her requ st, in her presence, and in the presen~e of each
other do hereunt subscribe our names as witnesses. Ani we and
each of us decla.e that we believe this testatrix to be of sound
mind and memory.
residing at
residing at
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Cumberland County - Register Of Wills
One Courthouse Square
Carlisle, PA 17013
phone: (717)240-6345
Date: 08/15/2005
FOGLE MARK ANDREAS
77 YELLOW WOOD DRIVE
DOWNINGTOWN, PA 19335
RE: Estate of FOGLE MAGDA
File Number: 2005-00488
Dear Sir/Madam:
It has come to my attention that you have not filed the
Certification of Notice Under Rule 5.6 (a) in the above captioned
estate.
As per the AMENDMENTS TO SUPREME COURT ORPHANS' COURT RULES,
NO. 103 SUPREME COURT RULES DOCKET NO. I, for decedents dying on
or after July 1, 1992, the personal representative or his
counsel, within ten (10) days after giving proper notice to the
beneficiaries and intestate heirs as required by subdivision
(a) of Rule 5.7, shall file with the Register of Wills or Clerk
of the Orphans' Court his/her Certification of Notice.
This filing is due by:
09/10/2005
Your prompt attention to this matter will be appreciated.
Thank You.
Sincerely,
~.~M~~~
GLENDA FAR~;~~t~~UGH
Clerk of the Orphans' Court
cc: File
Counsel
Judge
CERTIFICATION OF NOTICE UNDER RULE 5.6(a)
Date of Death: ~
M f\<OOt:\ U~
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Name of Decedent:
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Will No.
'L 0 05 ~ ()() t{ "t <is
Admin. No.
To the Register:
1 certify that notice of (beneficial interest) ~state administration required by Rule 5.6(a) of the Orphans' Court Rules was
served on or mailed to the following beneficiaries of the above-captioned estate on
Name
Address
m Arul Po cd ~
L(pNl[) rfY/t0
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17--L{0101~"oO Df2.. lhll)((Olo"1(vJ,fl) ~, '(133$
110 TO/J~-'<\) bll', ~om: ~ ll'fo'L
'7 ~ <8-Mma t-'i 7-TIltk~ rU\ I (j tdlD~ ~ ;~a,1
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Notice has now been given to all persons entitled thereto under Rule 5.6(a) except
Date:
Signatu,e (V -LlufJ /)-, ~
/t-;;v? R1 ( tD CO(pU:.
'3 ~B llll nofLli: :nP2t~
NI(LUf2S()~A- ll6~J
/pO[ L - 338y -- vUCr'2..Jt.
Telephone ( 11 )( -!:t 4 ~ .- Ll510 5 --r- kLL
Name
Address
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Capacity: V'Personal Representative
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_Counsel for personal representative
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ReBEI1T P. ZIEGLER
:::~C;C;\D[i~. OF DEEDS
.,.... '.1 ',:," GO',P.!TY-F'
Parcel No: 42-29-2454-017
-- ('-P 20
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ADMINISTRATORS' DEED
THIS INDENTURE is made this 15 bh day of September, 2005.
BETWEEN
MARK ANDREAS FOGLE, Co-A.llRiniatrator of the Estate of Magda Fogle alkJa
Magdalene Fogle; TERRY WILLIAM FOGLE, Co-Administrator of the Estate of Magtla Fogle
alkJa Magdalene Fogle; and EDWARD LEE FOGLE, Co.Administrator of the Estate of Magda
Fogle aJkJa Magdalene Fogle;
herein designated as the Grantors,
AND
JON J. BRENNEMAN and PAULA L. BRENNEMAN, his wife,
herein designated as the Grantees
WHEREAS, Jack E. Bertolette and Edna M. Bertolette, his wife, by Deed dated April 2,
1962, and recorded April 2, 1962, in the Office of the Recorder of Deeds in and for Cumberland
County, Pennsylvania in Deed Book Volume M-20, Page 78, granted and conveyed the land
herein described unto Luther A. Fogle and Magda Fogle afkfa Magdalene Fogle;
WHEREAS, Luther A. Fogle died on September 24, 1978; and
WHEREAS, Magda Fogle aIkIa Magdalene Fogle died on May 8, 2005; and
WHEREAS, the Register of Wills of Cumberland County, Pennsylvania, duly granted
Letters of Administration to Mark Andreas Fogle, Terry William Fogle and Edward Lee Fogle,
the Grantors herein, on May 31, 2005, thereby granting them authority to grant and convey said
premises pursuant to Section 3351 of the Pennsylvania Probate, Estate and Fiduciary Code (20
Pa. C.S.A. Section 3351).
aoci 271 PACE 1 '7.9
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NOW THIS INDENTURE WITNESSE1H, that the said Grantors, for and in consideration
of the sum of One Hundred Seventy.One Thousand Nine Hundred and 00/100 ('171,900.00)
DoUIll'8 lawful money of the United States of America, unto them, well and truly paid by the
said Grantees at and before the sealing and delivery hereof, the receipt whereof is hereby
acknowledged, granted, bargained, sold, aliened, released and confIrmed, and by these presents
do grant, bargain, sell, alien, release and confirm unto the said Grantees, their heirs and assigns,
ALL THAT CERTAIN piece or parcel of land, situate in the Township of Upper Allen,
County of Cumberland and State of Pennsylvania, bounded and described as follows:
BEGINNING at the point of intersection of the southern line of Andes Drive and the
western line of Cascade Road, as shown on the hereinafter mentioned Plan of Lots; thence along
the western line of Cascade Road South three (3) degrees twenty-three (23) minutes West one
hundred twenty-nine and forty-two one-hundredths (129.42) feet to a point; thence along other
lands now or formerly ofMt. Allen Corporation, South eighty-four (84) degrees fifty-three (53)
minutes West ninety and eighty-seven one-hundredths (90.87) feet to a point; thence along the
eastern line of Lot No. 38 on said Plan North five (5) degrees seven (7) minutes West one
hundred twenty-eight (128) feet to Andes Drive; thence along the southern line of Andes Drive
North eighty-four (84) degrees fifty-three (53) minutes East one hundred ten (110) feet to the
Place of BEGINNING.
BEING Lot No. 37 on Plan of Section 2, Mt. Allen Heights, said Plan being recorded in
the Recorder of Deeds Office of Cumberland County in Plan Book 12, Page 16.
HAVING THEREON EREcrED a brick, split level dwelling house known as No. 508
Cascade Road, Mt. Allen Heights.
UNDER AND SUBJECl' to covenants, easements, and restrictions of record.
TOGETHER with all and singular improvements, buildings, ways, waters, water courses,
rights, liberties, privileges, hereditaments and appurtenances whatsoever thereunto belonging,
or in any way appertaining and the reversions and remainders, rents, issues and profits thereof;
and also all the estate, right, title, interest, use, trust, property, possession, claim and demand
whatsoever, of her, the said Magda Fogle alkJa Magdalene Fogle, as and immediately before the
time of her decease, in law, equity, or otherwise howsoever, of, in, to, or out of the same.
TO HAVE AND TO HOLD the said parcel above-described with improvements thereon,
hereditaments and premises hereby granted and released, or mentioned and intended so to be,
with the appurtenances, unto the said Grantees, their heirs and assigns, to and for the only
proper use and behoof of the said Grantees, their heirs and assigns forever, AND the said
Grantors, for themselves, their heirs, executors and administrators, do covenant, promise and
agree, to and with the said Grantees, their heirs and assigns, that they have not done,
committed, or knowingly or unwillingly suffered to be done or committed, any act, matter or
thing whatsoever whereby the premises hereby granted, or any part thereof, is, are, shall or may
be impeached, charged or encumbered, in title, charge, estate, or otherwise howsoever.
BOOK 271 tACE 18!)
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IN WITNESS WHEREOF, the said Grantors have hereunto set their hands and seals the
day and year fIrst above written.
SIGNED, sealed and delivered in the presence of:
WITNESS
WITNESS
WITNESS
EDWX. EE G E, Co-
Administrator 0 the Estate of Magda
Fogle alkJa Magdalene Fogle
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF L\..l,fn b ifl CAn cL
55.
On this 15 ch day of September, 2005, before me, a Notary Public, personally appeared
MARK ANDREAS FOGLE, Co-Adllliniatrator of the EAtale of Mapa Fogle aIkIa Magdalene
Fogle, known to me (or satisfactorily proven) to be the person whose name is subscribed to the
within Deed and acknowledged that he executed the same for the purposes therein contained.
Witneu my hand and seal the day and year aforesaid.
0}11~ if}Y)-~~
Notary Public
NOTARIAL SEAL
MILDRED M. O'DONNELL, Notary Public
City of Harrisburg, Dauphin Co. PA
My Commission expIres Aug. 26: 2006
BOOK 271 PACf is!
illT
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF tlAMb erJ WI&.
SS.
On this IS bh day of September, 2005, before me, a Notary Public, personally appeared
TERRY WILLIAM FOGLE, Co-AdminUtrator 01 the Eatate 01 Mqda FQ8Ie alkJa ~De
Fogle, known to me (or satisfactorily proven) to be the person whose name is subscribed to the
within Deed and acknowledged that he executed the same for the purposes therein contained.
Witness my hand and seal the day and year aforesaid.
NOTARIAL SEAL
MILDRED M. O'OONNELL, Notary Public
City of Harrisburg, Dauphin Co., PA
rlrj Commission Expires Aug. 26. 2006
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Notary Public
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF t.urnberlc...()~
SS.
On this IS \:h day of September, 2005, before me, a Notary Public, personally appeared
EDWARD LEE FOGLE, Co-Administrator of the Estate ofMasda Fogle alkJa ~daleDe Fogle,
known to me (or satisfactorily proven) to be the person whose name is subscribed to the within
Deed and acknowledged that he executed the same for the purposes therein contained.
Witne88 my hand and seal the day and year aforesaid.
MILpRED ~P6~~~~l SEAL
M CIty of HarriSburg ~~~h~o~ry Public
Y Commission Expires A In 0., PA
u(J. 26, 2D06
~O'h-r>rD~
Notary Public
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The undersigned certifies that the precise residence and complete post office address of
the Grantees is:
5 68 C(),,)e.u.d~ D(;)uJ.--.
f\1 ~JiCt.n'L..-~l>>rb fR ) 7055
p;~
Attorney/Agent for Grantees
'.'n I' ; h IS to be rey;_:cJ
;:,';"['r;~llld ("()un;'/ PA
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