HomeMy WebLinkAbout12-21-06
INRE:
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
ESTATE OF LINWOOD B. PHILLIPS, JR.,:
Deceased
ALICE R. PHILLIPS,
ORPHANS' COURT DIVISION
Petitioner
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The moving party, ALICE R. PHILLIPS, by and through her attorneys;"JAMES, N
: NO. 21-06-0122
ROBERT G. FREY,
Respondent
MOTION TO STRIKE
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SMITH, DIETTERICK AND CONNELLY, LLP, files this Motion to Strike as follows:
1. On or about August 21, 2006, Petitioner, Alice R. Phillips, surviving spouse of
Linwood B. Phillips, Jr., deceased filed a Petition to Set Aside Prenuptial Agreement (the
"Petition to Set Aside").
2. On or about August 28, 2006, the Honorable Joseph C. Rehkamp entered a Rule to
Show Cause on the Respondent directing him to please and show cause, if any he has, why the
Court should not enter an Order set aside the Prenuptial Agreement."
3. On or about September 13,2006, the Respondent filed Preliminary Objections to the
Petition to Set Aside.
4. Petitions are governed by Rule 206.1, et. seq. ofthe Pennsylvania Rules of Civil
Procedure.
5. Rule 206.4(b) provides that the procedure following issuance of the Rule to Show
Cause shall be in accordance with Rule 206.7.
6. Rule 206.7 does not provide for preliminary objections after the issuance of a
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Rule to Show Cause.
7. Respondent does not plead with specificity as to what Rule he is relying upon to
file his Preliminary Objections, but Petitioner believes Respondent is relying upon Rule 1028 of
the Pennsylvania Rules of Civil Procedure (Preliminary Objections at ~2).
8. Rule 1028 of the Pennsylvania Rules of Civil Procedure provides that Preliminary
Objections may be filed to "any pleading."
9. Rule 1017 of the Pennsylvania Rules of Civil Procedure provides that pleadings
are limited to a complaint, an answer thereto, a reply, counter-reply, preliminary objections, and
answers thereto.
10. Rule 1028 of the Pennsylvania Rules of Civil Procedure does not apply to matters
designated to proceed by petition.
11. Preliminary Objections are an improper response to a Rule to Show Cause; the
proper response is an answer to the Petition and while this is an issue currently before the
Pennsylvania Supreme Court Rule committee and may be a technical reading of the rules, it is
well grounded that until resolved, an Answer is the only proper response to an executed Rule to
Show Cause until the rules are amended.
12. Moreover, Respondent's Preliminary Objections will serve only to cause delay
and unnecessary expense to the decedent's estate, when the Dead Man's Statute can be preserved
in a new matter.
13. This Motion may be decided as a matter oflaw. Therefore, Petitioner does not
request a hearing on this matter and discovery is not necessary.
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WHEREFORE, Petitioner respectfully requests this Honorable Court to enter an Order
striking Respondent's Preliminary Objections and ordering Respondent to file an answer to the
Petition immediately, together with such other relief as this Court deems just and appropriate.
Respectfully submitted,
Date: December l 1>;+-2006
J~M1TH, DIETTERlCK & CONNELLY, LLP
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CERTDnCATEOFSERVICE
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AND NOW, thisG\ day of December, 2006, I, Neil Warner Yahn, Esquire,
Attorney for Petitioner, hereby certify that I have this day sent a copy of Petitioner's Motion to
Strike to the following by depositing a copy of same in the United States mail, postage prepaid,
at Hershey, Pennsylvania, addressed to:
SERVED UPON:
Robert G. Frey, Esquire
Frey & Tiley
5 South Hanover Street
Carlisle, PA 17013
Attorney for the Estate of
Linwood B. Phillips, Jr. and Executor
Hubert X. Gilroy, Esquire
Broujos & Gilroy, P.C.
4 North Hanover Street
Carlisle, PA 17013
Attorney for Linda Stull and
Linwood B. Phillips, III
George B. Faller Jr., Esquire
Michael J. Collins, Esquire
Martson Deardorff Williams & Otto
Ten East High Street
Carlisle, PA 17013
Attorney for Attorney for Robert G. Frey
Neil W.
Attorne
P.O. Bo 650
Hershey, PA 17033
(717) 533-3280
Attorneys for Petitioner