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HomeMy WebLinkAbout94-02555 ! . , \ \ ! I~ }2, lJ I . . 94-2555 EQUITY TERM sums which she then placed into accounts with her sons by a prior marriage. Tbe question in tbis case is particularly acutc where the power of attorney at issue grants no authority to make gifts to anyone. Because these suhstantillllegal questions must he resolved to determine the rights of thc respective parties and heelluse the issuance of a preliminary injunction docs no more than maintain the status quo, we will grant the plaintiffs request. ORDER AND NOW, this I t' day of July I, 1994, without prejudice to the plaintiff to seck a constructive trust and/or damages with respect to greatcr or other amounts, the defendants arc herewith enjoincd from the dissipation, waste, or transfer to any other person, without leave of court, the following monies: (I) sums on deposit in York Federal Account number 010-192931 to the extent of $17,500.00; (2) the sum of $1O,1I00.1I0 now or formerly a York Federal certificate of deposit numher tlI0.21745R in the joint names of Mllry Belle Weaver and her son, Joseph A. Lombardo; (3) the sum of $IO,Ollll,Oll now or formerly a York Federal certificate of deposit numher ]Q1I217459 in the joint nalnes of Mllry Belle Weaver and her son, Barry P. Lombardoj (4) the sum of $IO,OOO,lIl1 now or formerly in York Federal account number ROO.01l0462 in the joint names of Mary Belle Weaver and her son, John E. Lombardo. Nothing herein shall prevent the trnasfer of said funds for investment or re-investment at advllntageous terms pending the outcome of this litigation. BY THE COURT, / I / 3 . , i f1 ~ ~ ~ i,i I ,~1 1~ \~ .':r] 0 0 ~~: ... ... ., ~~ III .... 5 N . . 0 , r...z ..J ~ ~sffi z .... ., - en Z~o <>-0 ~< N...l!::... PI III ~ 'l-l ~ ,g .jJ H H s~ 'l-l I: f:J~~ ~<I= - to.<N'" '.-1 III lJl<~UlZ N:I: '" 0"" ~< '" ~ .., .jJ PI '0 :;Jgg o e:." ~~ I: r~ '0 I: lJ.lz2:'ilJl> ~ '.-1 ...:1:><1: al L? ::i ~ ~ :r:;;: I:(Wci>- -Ill tj~1Il 'l-l IIlp<Z wl:)w< u~ H I:(.-t , al H c:: UI/l ::I:(::en ::J ~PI en III 0 Cl - 0 O.:l;!>-!:2~ 0000 ~ S > ~il ~8~ ::Ec::~~:r:z ...l~...l2: ~ lJ. . lJ....l 0 ~f5 .lJ.l- ol-W ,~ . . ~u en C::~~l:lJlD: 01:(03' 10 ffiHH 81 10 , r... -s - ~~ ~Oo<;:j~ lfiwlfio N III Ii "" .... 10 ~l:)~1:( I 0'0 0 f:J1Il...:1 o .. ....- <0<< 'l' al 'I Cl~~ ..J < ...l _~_u en ~~r4 IJ. ~ !~ P<PI ---- ~~~ 0 u __-':S_ t/IalOO H it . ,.,. c :\wpIIIJdOrdoc.lwcavu ,bl! responded that she had taken care of that and that her affairs had been set up In such a way that her husband would be allocated his share of their assets and she would be allocated her share. When the funds allocated to Mr. Weaver were gone, she would stili have her share and he would be taken care of by the government (presumably Medicaid). In the course of her planning for the nursing home expenses, Mra. Weaver attempted to organize the household, putting various property up for auction and selllng other property at yard sales. She also admittedly made substantial transfers of funds from money held in joint accounts to money held in her name alone, and in her name Jointly with three of her children. The liquid assets appear to have been held at York Federal Savings & Loan Association. As ollhe date of the unexpected death of Mary Belle Weaver, on January 31,1994, there were three certificates of deposit In the approximate amount of $10,000.00, which Mary Belle Weaver held with each of her children, Joseph A. Lombardo, Barry P. Lombardo, and John E. Lombardo. There were also two accounts in Mary Belle Weaver's name alone, totaling approximately $32,000.00 and two accounts held jointly by WllIlam S. Weaver and Mary Belle Weavar, totaling approximately $19,500.00. 2 c :lwplllJdQrdoc.I....'u,brf ~ Plaintiff seeks a preliminary injunction against Defendants from expending Bny of the assets of the Estate of Mary Belle Weaver, and the three certificates of deposit which were jointly held by Mrs. Weaver and one of her children as of the date of her death. A preliminary injunction will only be granted after a showing of clear right in the Plaintiff and immediate and Irreputable harm If It Is not granted. Pa. Civil Practlce,~, Section 30.19. It Is Defendant's position that Plaintiff cannot show a clear right to relief. William S. Weaver executed a Power of Attorney on April 19, 1993, which Is attached to Plaintiff's Complaint as exhibit 'A'. Said Power of Attorney provides In pertinent part in paragraph 3, for the power; 'to deposit funds in and withdraw funds In any account that I may have at any bank...includlng accounts I may hold Jointly with other persons..... It provides further In paragraph 10 that the attorney-in-fact has the power to 'perform any acts on my behalf, consistent with prudent estate planning or financial management, Including but not limited to...transferrlng title to real and personal property.' The Power of Attorney In favor of Mary Belle Weaver further granted to her: full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in connection with my property or estate as fully as to all Intents and purposes as I might or could do if personally present; hereby ratifying and confirming all that my said attorneys, or any substitute or substitutes, shall lawfully do or cause to be done therein, by virtue of these presents. 3 c:lwplllJdllrdoc.I....,,,,brf Plaintiff will maintain that Mr. Weaver did not specifically authorize the Bctions questioned. It Is clear from the reading of the Power of Attorney, that there is no provision which states that It may be used only in the event that the grantor Is incompetent. Plaintiff may raise an issue as to whether a Power of Attorney which does not specifically grant the power to make a gift provides such an authority to the attorney-in-fact. The Court of Common Pleas of Berks County in the case of Brenner v. Manmll[m:, 6 F1duc. Rep. 2d 307 (1986) In fact, supported such a proposition, finding that transfers by a donee of a Power of Attorney to herself were not valid where no power to make gifts was expressly authorized in the Power of Attorney. this case was specifically overruled by the Supreme Court, however, at Brenner v. Manmlller. Pa, , 611 A.2d 1199 (1992), referring to the case of ~ Est{\te of Clarence Relfsnelder. Pa. ,610 A.2d 958 (1992). That case, Involving an Issue of whether, in Interpretation of statutory language at 20 Pa.C.S.A. Section 5602, involved the issue of whether an election against the Will made by an attorney-in-fact was authorized under the broad language of the Power of Attorney, where such a specific authorization was not set forth, was permissible. The Court ruled that such a power did exist under the broad language of the act. It Is Defendants' position that the actions of Mrs. Weaver In dividing the property in question, were consistent with prudent financial management of the assets of the parties. Although the power to make gifts was not specified in the Power of Attorney, under the authority of the cases cited above, such specific authority is not necessary. Finally, the fact that Mr. 4 c:lwp.lI\loIIlrdoc,l_vu,brf Weaver may have been competent at the time the transactions were made, Is not fatal to Defendants' position, since the Power of Attorney was valid regardless of his competency. For these reasons Defendants maintains that the preliminary Injunction should not be granted. Respectfully submitted, FLOWER, MORGENTHAL, FLOWER & LINDSAY Attorneys for the Defendants By s !J< /I 1. . I.' '" ',' ",'\- .... .. ," " ,_u~f" -..,.'-_._- _u__~_.. . ..-~..:_ '_~. - "U.. ~~ '~'~'.~'~:: .~~.~t ..~:.. ......l~'.~- -- .':-'~7' .~~.. A,i " ,t \ No. ~ '~"\' I " I It ....... I ,1, L' "',~... I ~!'j010-134 . !~Jl~;:1'1~"11 \, - ". . ! ..1.,:"1 ~:';'(I~,'.U~\ ' .:~ I . WCI-, tA P4.", OAlf AUO 05 .~ - 169050 60.7563/2313 ;; t : - : . I. ~'.' ~I 1993 PAY 10 THE ORDER OF WILLIAM S WEAVER .....$17 ,500.00 TWO SIGNATURES REQUIRED FOR AMOUNTS EXCEEDING $10,000 .~:'; SEVENTEEN THOUSAND FIVE HUNDRED DOLLARS AND 00 CENTS II' U;qO SOli' I: 2:1 ~:I? 5(;, :101: , ,.. - <lnv 1/ d;~;.. I ~ ~Lt"'IOI\ \';tt.Pili;~jEfH' .,' I ciqOO'oO-~~~~II~--'- ~~~~~~ .- - : '~'X i $17,500.00 i~: i ~ ~.~ ..041 l--! ~ " II~:> : -tJ- r: .--~~.,.,.", ". T !"".:' ~: !;i ~ - ~ ;1 ~w. i I~~ ~ I l...'.~ '3 0 'tv :.,1 If'. ~ '-' .... ,'" 'n;.Jt~ ~l I I ~' ,. ( . :.~~ "t: . ~ 2 I I I ~ :--... '-. t-:-~ '; k'~ffi:" ~ i' I ., I ~'~ '-; ,'.. a ~ r;....,.: : ~l ~~ (i. ;;,'. m 1'1 1- l:~ I I.ol ;0 I... I~ '~' o ~ I 1,-. I. I & ,- ~ ~ :\' =I:> K 090-004441 Ag 05-93 tt . . ! " ~ < 9 ~ ~ , /.... I.' "-~1"~r:~ , -.. I r........ 'C\..~r,l I .'-""':.'1"\' ." .; " . '~I II. ,.. H.U.,r' Hlr' , ",olJ .'.... ..t ~J:. ., " PAY ,~ .~ 1:"... 10 THE RUTH /1 UEA~ERl\":~f ;;', ORDER OF :,' ~.. 0;; ",";:'/ ,,),., ,'" ,'1. 4, . THOUSAND F~.~rl,RlJ~b~W:,~ElJENTEEN DOLLARS AND 54 . ~.. '" \ ..' '\."\l ~. ~.. :'. ......1 'A ;':., ',1.,'10'...:, " .:).''',' l;.~' " .,' f\o '," ;'1; .:. ~I f,'ll It' ,1. ., " '. ,~..' " '(.:... ',ct ,,;~. 11ft '~""" ") :'~----~I; ~bqol,~~>~(~'~~:{~~ ~Ol: OqOOOOl,l,1, ~II' J.~l '. l ~Gll'y4II':rq\'~~;ll~)4.';r') (:,,~:,')'l;: t}! . i" l ;;;'.~ 1, III _ ',' . J. '.' . ;:,..' 'w},\ .... ,,';', _-:. , '1~ . ..t ..', ....,....fl Jo':", ..., . ,',. ,I, I , . "', .... .~. :'\ . ...:'.... "', 'j.t .....:-..1.... ... ','I, . " ,'-, '_' 'f" '''' \..,',., to I.' ~.. ,.1 ... ... '. . . \ ....w'..t ....... ' . .. ., . '... ':III'rr n!"r '"", 1. ' .' - ..lli_, " .1' '. s ~'ltt!G~ If ;'.!~ .... ,.'. 9 "1'11' I - .. I . ". . r,~,.. ,..... , I.' l , ~ (,l;,,'W;I:/'II,h;" , .... ~~ <'1-1..',11,1'..,' ""',,' t :,~1',7", .....,..., . " '.. ~, -I .,' , . .. .: .. ' ~ ,oJ .. i. l\ U U " , ~ ;':1 '(, ,F." " ", .' " t' " --.. --, "N;~ 'ff590~~" - ?il , 60-7663/2313 DATE AUG '05 1993 ....t$17t517 ,54 TWO SIGNATURES REQUIREO FOR .M!OUNTS EXCEEDING .10,000 CENTS ~~/{,~~-' ~1~J ,64 - N~ -.:", ----'e..'" --r-- -.-. ~"OOID4MJ1? 51,," ".1 . .\, ".' I . I.. .' . I, I' I I 1)( , 1 1 ~ 1 I , I 1 I. 81 I , i ! ~ ' I 1 I I 'I I I 1 I I ! : I I ~ " I I ~ 1 1 I 9; : , I ~ I I ,I I I ~~: I I ~" ~ 6, I I ".', i,' I I , I , ~ I I 1 I , 1 I I I I I I I .. . , .1. , .. t of,' 1.... I, pX #ok- " I i I ....--...-... ,- i i!l ... - I~ l:J l:; 0 III ~..: oe:; ." - III .... -< '""., :.c E l i:i .... OO:I'I:C ""Z ," ~eel 0.... ~~8~~.. I ..l .. 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LOMBARDO, Detendunts NO. 94-2555 Equity Tcrm EQUITY PLAINTIFF'S BRIEF IN SUPPORT OF PETITION FOR PRHUMINARY INJUNCTION I. FACTS William S. Weaver and Mury Belle Weuver were married on August 13, 1965. At thc time, William S. Weaver was the futher of two udult daughters bom to a previous marriagc, Burburu A. Hemefinger und Sundrn M, Wingcrd, At the time, Mllry Belle Weaver was the mother of five adult children bom to a previous murriagc, Barry 1'. I.ombardo, John E, Lombardo, Joseph A. Lombardo, Vivian K. I'lunkett and Judy Wilson, Willium S. Weaver worked us u bluc collur laborcr for the ruilroud until his retiremcnt. Mr, Weuver wus the sole wage eamer in the household. Suvings hud been uccumuluted and invested primarily in certificates of deposit aud bunk uccounts, In 1990, the Weuvers purchased in joint numes a mobilc home on a tilUndutionlocated ut42 Kenwood Avenue, Curl isle, South Middleton Township, Cumberlund County, Pennsylvania. lilr $35,900,00, The home was purchascd with cash from ueeumulated savings, William Weaver drcw u railroad retirement and social security incomc. Mary Bclle Wcaver received social security ineome, In 1992, William S, Weaver became ill requiring hospitali711tion and surgery on a number of occasions, On April 19, 1993, Plaintiff William S, Weaver executed a l'ower-ot~Attorney to his wifc Mary Belle Weavcr, u copy of said Power-ol~Attomey bcing attaehed as un Exhibit to Plaintiff's Complaint to Declare and Entilrce Constructive Trusts IiIcd in thc abovc captioned uetion. William Weuver stated in his tcstimony that he understood the purpose of the I'ower-ol~ Attomey to be to pertnit his wife to write ehceks and sign them on his behal!: Mr. We liver stated that thcre wus no discussion with his wile at the time of execution of the Powcr-ol~Attorncy or subsequcnt thercto about financiul planning lor cst lite planning purposes or tilr nursing home planning purposcs, Following exceution of the Power-ot~Attorney, on or about April 30. 1993. Mary Belle Weaver utilized the Powcr-ol~Attorney to trnnsler the title to a 19R6 Ford F-150 truck, vehicle identificution numher I FTDF 15Y2<lNNJ76R6, to her grundson. Bryan 1', Lombardo, lilr a purportcd eonsiderution of $2,500,Oll, Suid trunsfcr occurred without the knowledge or consent of William S, Weuver, Until uner the deuth of Mllry Belle Weaver. Willium Weaver was unuware thutthe title to the truck had becn transferred lInd has no IIceounting lilr the purported considerution of$2.500,lIl1 proeecds from the vchicle which WllS titled in his individulllnllme, On August 17, 1993. Mary Belle Weaver trunslclTed the title tOll 191)2 Oldsmobilc Cutluss Cicra MM~K. WEIGU: ANn P[UKINS - AT10UNtvs AT lAW l~h I:A51 kiNO STnHT -" SIUPP[NSUlJHa, flA 11251 automobile, vehicle identification number IG3AL54N5N6338836, fromlhe individual name of William S. Weaver to the individual name of Mary Belle Weaver. In early August. 1993, Mary Belle Weaver contacted Ruth Weaver, the mother of William S. Weaver, and demanded thllt Ruth Weaver give her money from a bank account jointly owned by Ruth Weaver and William S, Weaver, The filnds in said joint bank account were the proceeds ofthe sale of a Hum by Ruth Weaver. Ruth Weaver liquidated the joint account in the approximate amount of$35,OOO.00 and had a ehcek in the amountof$17.51111,OO issued payable to William S. Weaver. Mary Belle Weavcr endorsed the check using the PO\ver.ol~Attomey lrlllll William S. Weaver and on August 3, 1993, deposited the sum of$17,5110,lIl1 into York Federal Account Number 010.192931 in the individual name of Mary Belle Weaver, According to the testimony of both Ruth Weavcr and William S. Weaver, William was unawarc of the transaction, and ncither his wife nor his mother discussed it with him, On or about May 21, 1993, Mary Belle Weaver withdrew the sum of$20,lI110,OO from York Federal Savings and Loan Associution, hereinatler referred to as "York Federal", account number 010100178864 in thcjointnamcs of William S, Weaver and Mary Belle Weavcr and depositcd the sum of the $10,000.00 into York Federal certificatc of deposit number 1 1I0-217458 in the joint names of Mary Belle Weaver and her son Joseph A. Lombardo. Mary Belle Weaver deposited the sum of$lll,OOO,OO into York Federal certificate of deposit number 100217459 in the joint names of Mary Belle Weaver and her son Barry P. Lombardo. On July 2, 1993, Mary Belle Weaver withdrew the sum of $1 0,000.00 from York Federal aecount number 010100178864 injoint names of William S, Weaver and Mary Belle Weaver and deposited said filnds in York Federal account number 800-001l462In the joint names of Mary Belle Weaver and her son John E. Lombardo a resident of the State of Connecticut. On or about July 13, 1993, Mary Belle Weaver withdrew the sum of $4,030.32 from York Federal account number 010100178864 in the joint names of William S, Weaver and Mary Belle Wcaver. Mary Belle Weaver died intestate on January 31, 1994. Under the intestate laws of the Commonwealth of Pennsylvania one-half of her estate will pass to her surviving husband Willilllll S. Weaver and one-half of her estate will pass to Mary Belle Weavcr's five ehildrcn by a prior marriage, or their issue. 20 Pa.C.SA Seetion 2102(4). The three certificates of deposit established by Mary Bellc Wcaver with her three sons in the originalllmounts of $1 lI,OOO,OO each will pass to her three sons by a prior marriuge us sllrvivingjoint owners ofsuid accounts, The gross ussets of the estate of Mary Belle Weaver us setll1l1h in Schedule "E" of the Pennsylvania Inheritance tax retum filed with thc Omce of thc Register of Wills in and fhr Cumberland County, Pennsylvania consists primurily of the flJllowing: Slllrd V.rur 111I1lt.iIl.lln.Lb 1992 Oldsmobile Ciera uutomobile Farmcrs Trust Com puny checking uccountnul11ber 11- 721126 York Federal ueeountnumher 0 I 0-192931 York Federal certificate depositnllmber ROO.1I0048I $ 8,I01l,OO $ 4,I1I5,1I2 $21,067,66 $11.170,IR MAhK. WEIGLE ANn f'[fU<IN5 ~ A1HJnNEYS AT lAW - liW [AS' KING stun:, . StlIPPr.NSUUIIO, PA_ 17257 II. ISSUE Is PlalntllT entitled to the Injunctive Relief rcqucsted'l To bc cntitlcd to the injunctive rclief requcstcd, Plaintill' must dcmonstrate a clear right to the relief requested, an urgent necessity for prcvcntion of irreparable harm and the likelihood that greater injury will be done by the court refllsing the injunetion than by the court granting it. Herman v. Dixon, 393 Pa, 33, 36-37, 141 A.2d 576, 577 (1958). In the present easc, the assets upon which Plaintitr seeks to impose a constructive trust consist of funds in the hands of Defendants, Barry P. Lombardo, John E, Lombardo and Joseph A. Lombardo, Said funds may easily be dissipated, The remairling nsscts eonsist of an automobile nnd bank aecounts totalling approximately $40,OllO.OO, Delendnnts hnve liquidated the nutomobile and arc believed to have made payments to themsclves for executor's commission. Delendants arc nlso in the position to disburse funds to the stepehildrcn of Mary Belle Wcaver or their heirs, which include a number of out of stnte residents, If this occurs, it is unlikely that the nssets can be reeovered. Furthernlore, Delendnnts, Barry P. Lombardo and John E. Lombardo have incurred or intend to ineur expenses for attorney's lecs, executor's commission, probate fees, and Pennsylvania Inheritance tax whieh should not be incurred in the evcntthe court determines that a eonstruetive trust should be imposed and that the assets in question arc the property of William S. Weaver. To determine that Plaintiff is likely to prevail on his request to impose n eonstruetive trust, the court must examine four sub-issues related to the exercise of the Power-of:Attorney by deeedent, Mary Ilelle Weaver, Sub-Issue A: Should the gencral language of Plaintiff's Power-of-Attorney be construed to grant the specific power to make gifts or to make IImltcd gifts? The Plaintill's Power-ol:Attorney should not be eons trued to grant the specifie power to make gifts. It is clear that the language of the Weaver Power-ol:Attorney does not specifically grant to the Attorney-in-Fact the power to make gifts or to make limited gins. The word "gift" does not appear in the language of the document. The Plaintitr recognizes that in granting powers to the Attomey-in-Faet under a Power-ol: Attorney instrument, the language of the instrument need not explicitly idcntify the power using spccitic language which is either identieal or similar to the statutory wording of 20 Pa,C.S.A. Section 5602 (a), Estate of Rcifsneider, 531 Pa, 19, 610 A2d 958 (1992), The specitic power granted to the Attorney-in-Fact may be interpreted from the gencral language of the Power-of: Attorney, Id, However, the ruling in Reifsneidcr docs not necessarily imply that any general Inngullge in the Power-ol:Attorney doeumentmny be construed to grant the specific powcrs of 20 Pa,C,S,A, Section 5602 (a), See Miller Estate. 13 Fiduciary Reporter 2d, 391 (1993). The general )nnguage must be understood to enemnpnss such powcr or powers, Rcifsneider at 26, 610 A2d. at 962, In the present case, the Innguage of the Power.of:Attorney document would have to be interpreted to inter the powcr to mnke gitis or to mnke limited gills. as the instrument does not explicitly grllntthese powers to the Attorney-in-FlIcl, MARK. WEIGLE AND PERKINS - AT10nNEVS AT LAW.. 126 EAST KINO STRtET - SltII'PENS()UnO, PA. 11267 Dcfcndants lIsscrt thllt PlIrngruphs threc, tcn lInd lourtccn of thc Power-ol~Allorncy instrumcnt eontains 11IngulIge which elln he construed to grant to thc Altorncy-in-Factthe specilie power to make gins or to muke limited gins, Paragraph thrce stules "To dcposit funds inllnd withdraw funds from any lIeeountthatlmay have in lIny hllnk, trust eOmplln)', mutuul savings blink, credit union, or suvings lInd loan association, or lIny othcr depository by whulever nil me known, including lIccounts I mllY hold jointly with other persons, or to depusit limds in und withdnllv limds fromllny lIeeount in lIny linuncial institution which my suid Altorneys mllY ercllle fiJr thllt purpose," The PllIintill' asscrts thlltthis pllragraph mcrely grants the Altorney-in-FlIetthe power to enguge in bunking lInd linaneillltransaetions with respcetto the princlplllllceounts deposited inuccounls on deposit in linancial institutions, This paragraph grunts no power to thc Attorney-in-FlIetto dispose of such funds by way of gill to the Attorney-in-Fuet or others, PlIrugraph ten states "To perfimllllny lIcts on my behalf consistent with prudent estate plllnning or linnncialmanagemcnt, including but not limited to: creating trusts, milking lIdditions or subtractions Irom existing trusts,lInd trunslcrring titlc to rcalllnd personal propcrty." Dcfcndants lip pear to rest thcir ellsc for the power to make gins upon the terms "prudent estate planning or linancial management". The Plaintifl'asscrts thutthe tenn linllnclalmanagement rcfcrs to investment strategy including such issues liS rate of return lInd sceurity of the investment. Since li1l1ds were removed from onc account at a savings und loan assueiationto other accounts lit the same savings and loan association, its does not appcar that there was any linanclalmanagemcnt aspect to the cxercise of the l'ower-ot~Altomey. The only change which occurred was the titlc to the asset from thc name of thc I'laintiffto an investment out of the namc of the I'llIintiff, Thc term "prudent estatc planning" is not furthcr dclined. However, when said term is used in 211 Pa.C.S,A. Seetion 5603(a)(4), it is used in thc context of a limitation upon the gill giving power which may he granted under the 1'0wer-ol~Attorney. The statute goes onto rcquirc that such prudent estate planning or linancial managcment be dune "for the principal or with thc known or probable intent of the prineipal with rcspcetto the disposition of his estate." It is asserted that if the courtlinds thatthc morc general languagc eontaincd in the presentl'ower.of~Attorncy constitutes the power to make gills, thc court should thcretore lind that such power to makc gills is limitcd to prudcut estate planning or linuncial management which would be benclicial to the principal or which would be consistent with the principal's known or probable intent. Conccrning paragruph liJUrteen. almost identielll lunguage was used in the 1'0wcr-ot~Allorney documcnt interpretcd in Miller Eslute, supra, and the Court 01' Commonl'leas of Somerset County Ibund that the genernllunguage ofthut provision could not be intcrpreted to grunt the spccilie power to clcetllgainst a will, Miller Estale at )94, Likewise, the gencral provisions of paragraph lourteen in the 1'0wer-ol~Altumey in this euse should not hc interpreted to grantthc spccilic power to make gins or to muke limited gins, Evcn if the court were to interprct sllid languuge to uuthorize the making of gills, tllllt rnises the question whether such gills would be interpreted to he limited or not Iimitcd within the meuning of211 I'A,C,S,A Scetion 56(1)(u)( I) and (u)(2), Thc court would be put in the position of huving 10 ehuose one powcr over unother with Iiltlc or no guidancc from thc ducument. Sub-Issue II: U It Is dctcrmlncd tllllt Ihc IlcnCl'ul hlllllUUIlC III' 1'IIllntlfrs l'II\\'cr-of-Attlll'llcy Ill'unls thc MAnk. WUCilt ANlJ I'LUKINS - AllOUNIVS AI lAW 1211 "ASI KING !.1U[[1 SllIPP[NSnUIW, PA. 17257 Altorney-In-Fact the specific power to make gifts, do the Ilefendants hal'e the hurden of showing that the gifts were free of any taint of undue Influence or deception'! The I'laintill' contends that it is the Defendants who have the burden to show that the gins to the donees were tree of any taint of undue inl1uenee or deceptiun, The donee ofa gill has the burden of proving a gill by clear, precise and convincing evidence, In re Estate of PlIppas, 428 l'a.5411, 239 A,2d 298,300 (1968), A valid gill requires donative intentund dclivery, Estule of Korn, 332 PuSuper.154, 480 A,2d 1233, 1237 (1984). Once u prima Iilciu case of gill is established hy the donee, a rehuttable presumption that the gill is valid urises und the burden thcn shills tothc conlestuntto rebut the presumption, Banko v, Malenecki, 499 Pa. 92, 451 A.2d 1008. 11110 (1982), The presumption may be rebutted if the contestant establishes that a eonlidentiul rcllltionship existed between the donor and the donee at the time of the making of the alleged gilUd. A conlidential relationship may be established hy proofthutthe alleged donee possessed a Power-of- Attorney over a [principal's] assets, lIera v. McCornlick, 425 )la,Super 432,625 A,2d 682 (1993). As stated by Justice Roberts in Foster v. Schmitt. 429 Pa, 102,239 A.2d 471 (1968), "if there he any clearer indicia of a conlidential relutionship than the giving by one person to another of a Power-of- Attorney over the tilrnler's entire lile savings, this court has yet to see such indicia." Id at 108, 239 A.2d at 474. Once a confidential relationship is established, the burden then shills to the donee to show that the gin was free of any taint of undue inl1uenee or deception. Estate of Clark. 467 Pa. 628,359 A.2d 777, 781 (1976), Consequently, in this euse, the existence of the power-ot~lIttomey establishes a eonlidential relationship and shifts the burden to the Attorney-in-Faet, and the other donees, to show that the gifts were tree of any taint of undue inl1uence or deception, Suh-Issue c: If It is determined that the general language of l'lalntlrrs I'ower-of-Altorney grants the Altorney-In-Faet the specific power to make gifts and the burden remains with the Plaintiff to rebut the presumption that the gifts were valid, was the transfer of assets from the name of 1'lainUff inconsistent with prudent estate planning or financial management for the principal or inconsistent with the known or probable Intent of the principII I'! Even if the court finds the power to make gills Iromthe generullanguage of the 1'0wer-ot~Attorney, the uction taken by Mury Belle Weaver under this power to make gills wus not consistent with prudent estate plunning or linuncialmunugcmentlilr the principal and was not consistent with the known or prohable intent of the principal. 20 Pa,C,S.A. Section 5603(a)(4), As utilrcmentioned,the Pluintill'usserts thutthe term linuncialmul1ugement relers to investment strategy including sueh issues as rate of return and security of the investment. Since funds were removed Irom one aceount at a savings and 10unussociatiol1 to other accounts at the same savings and "1l1l1 association, its docs not appear that there wus uny Iinunciulmunagementuspeetto the exercise of the Power-ol~Attorney. The only change which ueeurred wus the title to the ussel Irom thc nume of the Pldntiff to an investment out of the name of the Pluintill'. The estate plUl1l1ing initiulcd by the Attorney-in-Fact was unbalunced, It provided lor the Attorney- MAnK, WEIGLE: AND Pl:IU(INS - A'lonNf-:VS Al lAW 126 l:A51 t<tNO stUEEl - SHIPJlENSUURG, PA. 17251 . . in-Fucl und hcr issuc but i~nored the Pluintilr und his issue, This cunnol bc construed as prudent plunninglhr thc principul. Onthc contrnry, it uppeurs to huve only bcen prudent phullling to provide lor thc Attorney-in-Fact and ultimately tor her childrcn by u prior marriagc. The trnnsters werc not l11ude to insurc a sound, secure, eonscrvutive return or investmcnt. Thcre was no dinercncc inthc torm of the investmcnt or return, In uddition, thc uetion tuken by the Attorney-in-Fact wus inconsistent with the known or probuble intent of the principul Williul11 S, Weuver, Mr, Weaver uecumuluted his ussets by wisely investing cllrnings from his toils us uluborer. I lis investment strntcgy was like his lifestyle, eonservativc und frugul, not frivolous. It would be out of chllruetcr liJr Mr. Weavcr to intend to makc substuntiulgills of his ussets, There is no past histol')' of gill-giving, In partieulur, there is no PUSl history of making gills to his stepchildren. Mr, Weaver hud not established anuctive relationship with his stepchildren, Also, Mr. Weaver states prescntly that hc did not intend tiJr the Powcr-ol~Attorncy to extcnd the power to make gills to thc Attorney-in-Fuet. During the marriuge there is no evidencc that any assets were titled in thc name of Mary Belle Weaver alone, Surely, Willial11 Weavcr would not have intendcd thc current rcsult whercby his hard carned savings would end up in the hands of his stepchildren during his Iitetimc, William S, Weaver further tcstificd that there were no discussions with his wile whereby she could have ascertaincd his intcnt with respect to the disposition of his cstate so as to support thc trnnster of assets such as was aeeomplishcd through the use of the Power- of-Attorney, Sub-Issue Il: I)jd the Attorney-in-Facl, Mary lIelle Wea\'Cr, brelleh her fiduciary duty 10 William Weaver by not furthering nor advancing Ihe inlerests of Mr. Wea\'er liS required under tbe law of agency? The Attorney-in-Fuct owing u fiducial')' duty to the principal, Mr. Weuver, as his ugent, breached that duty. Thc present state of the law on a Power-ol~Allorney is gcnerally provided tor by statute at 20 P A,C.S.A Section 560 I et seq, Ilowever, evcn though statutory direction is prelerred over the common law, 1 Pa.C,S,A, Section 1503 - Section 1504. the common law may be applied together with the statutory provisions unlcss the statutory direction is clcur and udequate, Cf. Ilureourt v, Gen, Ace, Ins. Co" 416 Pu,Super 155,615 A.2d 71, 75 (1992), The statutory direction is ncither clear nor adequate, Sincc prior to 1974 und thc first stututory cnactmcnt concerning thc Power-ol~Attol'l1ey, the law regulatingl'owers-ol~Allorney was bused entirely on thc eommlllllaw of agency, Reifsneider lit 21, 610 A,2d 960, !Jnder thc common law of ugeney, un attorney-in-ll1ct owcd u fiduciary duty to the principal. The prcscnt stutute does not uddress duties. It only addresses po\\'ers, It is unlikely thutthe legislature intended to disregard the duties of the Attorney-in-Fact. Beeuuse the present statutory provisions ure inudequate to guide the purtics in this dispute, the common lu\\' of ugeney should be considered, Under the luw ofugency,un agent. having u fiduciury duty to the principal. has u duty to uet with utmost good 111ith und loyulty in lilrthering and udvuncing the principul's interests, Garhish v, Malvern Federal Suvin~s und Loan, 358 Pa,Supcr 2R2, 517 A,2d 547. 553 (19R6); Sylvcster v, Beck. 406 Pu. 607, 17R A.2d 755, 757 (1962), Furthermore. un ugent should use his principul's property only in udvllncing the business of the principIII. IInd may not use if lilf her personal purpose without consent. Kern's Estate, 176 I'a 373. 35 A, 231 (l RlJ6), MAHK, WEICiL[ Mill I'f.UKINS .- A110IlNtV~ ^T lAW. 120 I:A51 KINO S1lUTl - !lIIIPII[NSnUIlG. "A. 172!J1 rOWER OF ATTORNEY I PLAlNTI"" EXHIBIT I AR'l'IeLE 1. DECLARA'l'IONS I, WILLIAM S, IIEAVER, currently residing at the 'Church of God 1I0me, BOt North Hanover Street, CarHsle, Cumberl.lIld County, Pennsylvania, 17013, appoint my daughter, 8ARBARA A. IIEFFLEFINGER, of 16 Back Street, I'lainfiuld, Pennsylvania, 17081, to be my true and lawful attorney with full power to carry out those acts specified in accordance with any limitations imposed herein. In the event the said Barbara A, Hefflefinger is unwilHng or unable to act as my said attorney, I appoint my daughter, SANDRA H. WINGERD, of 1793 Black Gap Road, Fayetteville, Pennsylvsnia, 17222, as my attorney-in-fact. This pawer-of-attorney shall take effect upon its execution and shall remain in effect until my death unless revoked by notice to my attorney-in-fact. This power of attorney shall remain in effect in the event of DIY subsequent disability or incapacity. In the event I revoke this instrument, any third party acting on the authority of the instrument, and without knowledge of the revocation, shall not be held accountable for any loss to me, my estate, heirs, successors or assigns. In the event an action is brought by any party in a court of competent jurisdiction for appointment of a guardian of DIY estate and/or person, and such action is not dismissed by the court due to my execution of this inutrument, I nominate my attorney-in-fact to serve as guardian of my estate and/or person, unless such action was brought as a result of allegstion that my attorney-in-fact has acted contrary to the instructions herein, or my best interests, and such allegation is found to be warranted by the court. My attorney-in-fact shall serve without compensation, In the event that my attorney-in-fact, or a successor, is unable or unwilling to continue in that capacity, the attorney-in-fact shall be empowered to appoint a successor. AR'l'ICLE II. POWERS GRANTED RELATED TO FINANCIAL HA'l"l'ERS The following powers are granted to my attorney to be used for my benefit and on my behalf in accordance with the directions specified herein, As to any assets, real or personal, standing in my name, held for my benefit or acquired for my benefit, I confer the following powers upon my attorney-in-fact I 1. As to any commercial, c1wcking, sav Ings, savings and loan, money market, Treasury bills, mutual fund accounts, safe deposit boxes, in my name or opened for my benefit -- to open, enter, withdraw, deposit into, close, and to negotiatu, endorse or transfer Gny instrument affecting thosu accounts. 2. Au to any promissory note receivable, secured or unsecured, or any accounts receivable -- to collect on, compromise, endorse, borrow against, hypothecate, release and reconvey that note and nny relnted deed of trust. MARK. Wf.ltiu: AND "[.nKI~j5 - AltOnNtV!I At LAW I;!(i LA!i1 KINh Slntn ~ MIIPPlN50uno. PA 1721)1 3, As to any shores of stock. bonds, or any documents or instruments defined as securities under law -- to open accounts with stock brokers (on cash or margin). buy, sell, endorse, transfer, hypothecate and borrow against, 4, As to any real property, now or hereafter owned by me -- to collect rents, disburse funds, keep in repair, hire professional property managers, loose to tenants, negotiate and renegotiate lea6es. borrow against, renew any loan, sign any documents required for any such transaction, and to buy or sell, without need for prior court approval. 5. To hire and pay from m}' funds for counsel and services of professional advisors, physicians, dentists, aecountants, attorneys and investment counselors, 6, As to my income taKes and other taKes -- to sign my name, hire preparers and advisors and pay for their services from my funds, and to do whatever is necessary to protect my assets from assessments liS though I did those acts myself. 7, To apply for public bend its or benefits from any pension or insurance plan or policy, public or private, to which I might be entitled, and in connection with any such plan or policy, to eKecute options under, borrow against, cancel, surrender for cosh value, or change beneficiaries, 8. To prosecute and defend legal actions, 9. To arrange for transportation and travel. 10, To partition property to create separate property for me. 11. To disclaim or release any powers or interests which I may have in any property. 12. To manage tangible personal property, including but not limited to, moving, storing, selling, donating, or otherwise disposing of said property, 13, To borrow money for me if that appellrs to be prudent. and in connection with any such transaction, to pledge any personal property for security as may be necessary. 14, To create one or more trusts for my benefit and to contribute to such truDts and receive income and/or principal from such trusts in accordance with their terms, 15. To represent me in any and all matters requiring my approval and consent in connection with or arising out of my interest in any trust of which 1 am the settlor or beneficiary, and to eKercise at eny time and from time to time any power which I now or may hereafter have with respect to any sueh trust, including any power to make withdrawals therefrom end any power to alter, amend or revoke, in whole or in port, the same. 16. To renounce or resign any fiducillry position to which I have been appointed or in which 1 am serving, including, but without limitation, any position as an eKecutor, administrator, trustee, guardian, attorney-in-fact or officer or director MAUl<, WClnt.E MW I'lIU<IN5 - ATfOlfNEVS AT lAW - Iolh EAST KINO STREET _ 5111PPENSOURO, PA. 17257 WILI.IAM S. WEAVER, Plaintill' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY v. ESTATE OF MARY BELLE WEA VFR, Deceased, and BARRY 1', LOMBARDO, JOHN E. LOMBARDO lllld JOSEI'll A. LOMBARDO, Defendants NO, 94.2555 Equity Term EQUITY PLAINTIFF'S BRIEF IN SUI'I'ORTOF PETITION FOR PREUMINARY INJUNCTION L FACTS William S, Wcaver and Mary Bellc Weaver wcrc married on August 13, 1965. At the time, William S, Weaver was the fathcr of two adult daughters bom to a previous marriage, Barbara A, Hefllelinger and Sandra M, Wingcrd, At the timc, Mury Belle Weaver was the mothcr of live adult children born to u previous marriage, Barry p, Lombardo, John E, Lombardo, Joseph A, Lombardo, Viviun K. Plunkett and Judy Wilson, William S, Wcaver worked as u bluc collar laborer IlJr the railroad until his retirement. Mr, Weaver was the sole wage earncr in the household, Savings had bccn accumulated and invcsted primarily in ecrtilicates or deposit and bank uccounts, In 1990, the Wcavcrs purchased in joint names II mobile homc on a foundutionloclIted at42 Kenwood Avcnue, Carlisle, South Middlcton Township, Cumbcrland County, Pcnnsylvania, for $35,900,00, The home wus purchascd with cash from aceumulatcd suvings, Wi Ilium Wellver drew a rnilrolld retirement and social sccurity income. Mllry Belle Weavcr received soeial security income, In 1992, Willialll S, Weaver bccame ill rcquiring hospitulization and surgery on a number of occasions, On April 19, 1993, PluintitT William S, Weal'er executcd a Power-ol~Attorney to his wire MlIry Belle Wcaver, u copy of said Power-ol~Attorney being IIttuched liS an Exhibit to Plaintiff's Complaint to Declare und EnllJrCe Constructive Trusts liIcd in the abol'e captioned uction. William Wcal'er stated in his testimony that he undcrstood the purpose of the Powcr-of. Attorncy to bc to pcrmit his wile to write checks und sign them on his behulf, Mr. Weuver stuted that there was no discussion with his wile at the time or execution of the Powcr-of-Attorney or subsequent thercto ubout Iinunciul plunning Illr estute plunning purposcs or lilr nursing home planning purposes, Following execution of the Power-ol~Attorney, on or ubout April 30. 1993. Mury Belle Wcal'er utilized the Power.or-Attorney to transler the titlc to a )9R6 Ford F-150 truck, vehicle Identilielltion nUlllber I FTDF 15Y2GNAlJ76R6, to her grandson, lIryun 1', I.omburdo, f'or u purported eonsiderntion or $2,5110,OO, Said transrcr occurred wilhout the knowlcdge or consent of Willillm S, Weul'cr. Until attcr the <leuth or Mary Ilelle Weal'er, Willilllll Welll'er II'US unulI'ure thut the title to the truck hud been trnnsrerred and hus no uccoonting IiII' the purport cd consideration of $2,SOO,Oll proceeds rromthe vehicle which WilS titlcd in his il1llil'iduulnllme, On August 17, 1993. Mury Belle Weuver trnnsferrcd Ihc title to u 1')1)2 Oldslllobile CUllllss Cicrn MAI1K, WlIGU: AND I'[UKINS _ A1TOUNEV5 AT lAW - 126 [Ast KINO 5T1ltF.l - &Iill'I'[N!iUlJHO, PA. lU!il uutomobilc, vehicle identilicution number 1 G3^1.5m5N633RR36, rrom the individuul name of Willium S. Weuver to the individual name of Mur)' Belle Weaver. In early August, 1993, Mary Belle Weavcr eontact~d Ruth Weaver, the mother of William S. Wcaver, and demanded that Ruth Weaver give her money from a bank account jointly owned by Ruth Weaver and William S. Weavcr. Thc limds in said joint bank account werc the procccds ofthc sale of a fann by Ruth Weaver. Ruth Weavcr IiquidnleJ the joint account in thc approximate amount of$35,OOO.00 and had a check in the amount or $17.500,00 issued pa)'able to William S. Weaver. Mary Bcllc Wcavcr endorsed the ehcck using the l'ower-ol~Attorne)' from William S. Weaver and on August 3, 1993, deposited the sum of$ I 7,500,00 into York Fcderal Account Number 01 1I.19293 I inthc individualnamc or Mary Belle Weavcr. According to the tcstimony of both Ruth Weaver and William S. Weaver, William was unaware of thc transaction, and neither his wife nor his mother discussed it with him. On or about May 21, 1993, Mary Bellc Wcaver withdrcw thc sum of $20,000,00 from York Fedcral Savings and Loan Association, hercinatler rcfemd to as "York Federal", account number 010100178864 in thcjoint namcs of William S. Wealer and Mary Belle Weaver and deposited the sum of the $IO,OllO.Oll into York Federal certilicate ofdcposit number 100-217458 inthcjoint namcs of Mary Bellc Wea\'er and her son Joseph ^, Lombardo, Mary Bellc Wcaver deposited the sum of$IO,OOO,1I0 into York Federal certilicate of deposit number 100217459 in the joint namcs of Mary Belle Weaver and hcr son Barry 1'. Lombardo, On July 2, 1993, Mar)' Belle Weaver withdrew the sum of $1 0,000.00 from York Fcdernl aecount number 010100178864 in joint names of William S, Wcaver and Mary Bellc Weaver and deposited said limds in York Federal account number 800-00(462 in the joint names of Mary Belle Wcaver and her son John E. Lombardo a resident of the Stme of Connecticut. On or about July 13, 1993, Mary Belle Weaver withdrcw the sum of $4,030.32 from York Federal ueeount number 010 I 00 178864 inthc joint names 01 \Villium S, Weaver and Mary Belle Weavcr. Mary Belle Wcaver died intestate on Junuary 31. 1994. Undcr the intestatc laws of the Commonwealth of Pennsylvania one-halfofhcr estate will pass to her surviving husband Willium S. Weaver and one-half of her estate will pass to Mary Belle Wcavcr's livc children by u prior marriagc, or their issue. 20 l'a,C.S.A. Scetion2102(4), Thc three certilicates ofdeposil estublished by Mary Bellc Weaver with hcr threc sons in the original umounts of $1 0,000,00 each will pass to her three sons by a prior murriuge as surviving joint l1\VnerS of said accounts, Thc gross asscts of the eslute or Mary Belle Weaver lIS sClliJrth in Schedule "E" of the Pennsylvania Inheritance tax retul11 filed with lhe Office or the Register of Wills in and ror Cumberland County, Pcnnsylvania consists primllrily llfthc lilllowing: :iJJ.ltll.YJt\u' 111111' nl.JkA1b 1992 Oldsmobile Ciera automobile Fanners Trusl Company checking ucclluntnumbcr 11-72026 York Federal account number 010-192931 York Federal certilicate depllsitnumber ROO-Oll048I $ 8,100,00 $ 4,105.02 $21,067.66 $II,170,IK ~4AI1K. WEIGLe AND !1EUK1NS _ A 110UNE'V5 AT LAW - 126 CAST KINO STREET - StllPPtN5UURO, PA. 11257 II. ISSUE Is Plaintiff cntlllcd to thc Injunctl\'c I{cllef rcqucstcd'! To be cntitlcd to the injunctive relief requested, Plaintiff must demonslratc a c1car right to thc relief rcqucsted, an urgent necessity for prevention of irreparable hanll and the likelihood that greater injury will be done by the court refusing the injunction than by the court granting it. Herman v. Dixon, 393 Pa, 33, 36-37, 141 A,2d 576, 577 (1958), In the prescnt case, the assets upon which Plaintiff sceks to impose a constrnctive trnst consist of funds in the hands of Defendants, Barry p, Lombardo, John E, Lombardo and Joseph A. Lombardo, Said funds may easily be dissipated. The remaining assets consist of an automobile und bank accounts totalling approximately $40,000,00, Defcndanls have liquidated the automobile and arc believed to have made payments to themselves for executor's commission, Delcndants ure also in the position to disburse funds to the stepehildren of Mary Belle Weaver or their heirs, which include a number of out of state residents, If this occurs, it is unlikely that the assets can be recovercd. Furthermore, Defendants, Barry p, Lombardo and John E. Lombardo havc incurred or intend to incur expenses for attorney's fees, cxecutor's commission, probate fees, und Pcnnsylvania Inhcritance tax which should not be incurrcd in the event the court dctennines that a constructive trust should be imposed and that the assets in question arc the property of William S. Wcaver. To deternline that Plaintilf is likely to prevail on his rcqucstto impose a constrnetive trust, the court must examine four sub-issues reluted tothc cxcrcise of the POIvcr-of-Attorney by dccedent, Mary Belle Weaver. Sub-Issue A: Shoutd thc gcncrnt langungc of l'lnlntifrs l'o\\'cr-of-AlIorncy be construcd to grunt the specific powcr to mnkc gifts or to makc Iimllcd girts'! The Plaintiff's Power-of-Attorney should not be construed to grant the spccilie power to make gifts. It is clear that the language of Ihe Weaver Power-of~Attorney does not spccilieally grant to the Attorney-in-Fact the power to make gills or tomllke Iimitcd gills, The word "gift" does not appear in the language of the document. The Plaintiff' recognizes that in granting powers to the Attorney-in-FlIct under a Pl1Iver-ol~ Attorney instrumcnt, the language of the instrument nccd not cxplicitly identify the power using specilie langunge which is eithcr identiclllor similar 10 Ihe statutory wording of 20 Pa,C,S,A, Seetion 5602 (a), Estate of Reifsneider, 531 PlI, 19,610 A,2d 958 (1992), The specilie power granted to the Attorney-in-Fact may be interpretcd fhllll the genernllllnguage of the Power-ot~ Attorney, Id. Ilowever, the ruling inlkillru:.iili:r docs not necessarily imply that any general lunguage in the I'ower-of-Allorney documentmuy he construed to grant the specilie powers of 20 I'n,C,S,A, Section 5602 (u), See Miller Estate, 13 Fiduciury Reporler 2d, 391 (1993), The general language must be understood to encompass such power or powers, Reilsneider ut 26, 610 A.2d, at 962, In the prescnt case, the lunguage of thc 1'0wer-of~Attorney documcnt would have to bc interpreted to inter the power to makc gills or to make limited gills, as thc instrument docs not explicitly grnntthesc powers to the Allorney-in-Fucl. MARK. WEIGLE AND PERKINS - ATTonNEVS AT LAW _ 126 EAST KING STREET _ SllII'PENsuurm, PA. 17267 Delendants IIssert that I'urugraphs three, ten and fiJurte~n of th~ 1'0wer-of~Attorney instrument contains language which can b~ construed to grant to the Attorney. in-Fact the sp~eilie power to muke gills or to muke limited gi ns. Parugraph thrc~ states "To d~posit funds inund withdraw 1\lIIds fromuny account that I may have in any bunk, trust company, mutual savings bunk, credit union, or savings und loan association, or any other depository by whatever name known, including accounts Imuy hold jointly with other persons, or to deposit funds in and withdraw l\mds Ihun uny account in uny linllncial institution which my said Attorneys may create lor thllt purpose," The I'llIintiff asserts tllllt this paragraph merely grants the Attorney-in-Fact the power to engag~ in banking and linanciultransactions with respect to the principal accounts deposit~d in uccounts on deposit in linancial institutions, This paragraph grants no pow~r to the Attorney-in-Faet to dispose of such lunds by way of gift to the Attorney-in-Fact or others, Paragraph ten states "To perform any acts on my behalf consistent with prud~nt estate planning or linancialmanagement, including but not limited to: creating tnlstS, making udditions or subtructions from ~xisting trusts, and transferring title to real and personul property," D~lendants appear to rest thcir case for the power to make gins upon the terms "prudent estate planning or financial managemcnt". The I'laintilTasserts that the tCl1nlinancialmanagement ref~rs to investment strategy including such issues as rate of return IInd security of the investm~nt. Since funds werc removed from one account at a savings and loan association to oth~r accounts at the same savings and loan association, its does not appear tlmt thcr~ wus any linunciulmunagementuspeetto the exercise of the Pow~r-of-Attorncy, The only change which occurred \\'as the title to the asset from the name of the PlaintilTto an investment out of the nllme of the PlaintilT. The t~rm "prudent estate planning" is not furth~r delined, lIow~v~r, when said term is used in 20 Pa,C,S,A, Section 5603(a)(4), it is used in thc eontcxtof a limitation upon th~ gin giving power which may be grunted under the Power-of-Attorney, Th~ statute go~s on to require that sueh prudent estatc planning or linancial managemcnt be done "for the principal or with the known or Jlrobabl~ intent of the prineipal with respect to the disposition of his estate," It is asserted that ifthc courtlinds that the more general language eontaincd in th~ presentPower-ol~Attorncy constitutes th~ power tomak~ gins, the court should therelorc lind that such power to make gins is limited to prndent estllte planning or linllncilll mllnagcment which would be benelicial to the principal or which would be consistent with the principlll's known or probable intent. Conc~rning paragraph lilllrteen, almost identical languagc was used in the Power-ol~Attorney document intcrpreted in Miller Estate, supra, IInd the Court of Commonl'leas of Somerset County lilUnd thatth~ generalluuguage of that provision could not be interpreted to grant the sp~eilie powcr to cleet against II will. Miller Estatc at 394, Likewise, the general provisions of paragraph fourtcen in the 1'0wer-ol~Attorney in this case should not be interpretcd to grant the specilic power to make gins or to mllke limited gins, Evcn if the court wcre to interprct said IlIngullg~ to authorize the mllking of gins, that raises the question whcthcr such gins would he interpreted to he limited or not limited within the meaning of20 I'A,C.S,A Section 56113(u)(l) and (a)(2). The court would be put in the position of having to choose one power ovcr another with little or no guidance Irom the document. Suh-Issue II: If It is delermined lhul lhe ~enerul hlll~uu~e nf 1'I1IIntlffs I'n\\'cr-nf-Attnrney ~runls lhe MAUK, Wr.I(}l[ ANI) pr:nKINS - ^l10HNEVS AT' lAW - 126 EAst KINO STnEI:T _ SHIPPENsuuno, I'A. 17257 Atlornc)'-in-Fuctlhc spcclfie IJCl\l'CI' to lIIukc lIifts, .10 thc J}cfcudunts hu\'c thc hurdcn of sltowin!lthutthc !lifts wcrc free of un)' tuintof uudue innncnce or dcception'! The Plaintiff contends that it is the Defendants who huve thc burden to show tbatthe gills to the donees were free ofuny taintofunduc inlluence or deception, The donee ofu gin hus the burden of proving u gill by clear, prccise und convincing evidence, In re Estute of Pappas. 42R Pu,540, 239 A.2d 298.300 (1968), A valid gill requircs donative intcntund delivery, Estate of KOIll, 332 PaSupcr, I 54, 4RO A,2d 1233, 1237 (1984), Once a prima lilcia case of gill is established hy the donce, u rebuttahlc presulllption that the gill is valid ariscs und the burden thcn shilis to the contestant to rcbutthe presumption, Banko \', Malenecki, 499 Pa, 92, 451 A,2d 1lI08, 1011I (19R2), The prcsumptionllluy bc rebutted if the contestuut establishcs thuta confidcntial relationship cxistcd betwcen the donor und the donee at the time of the lIIaking of the alleged gill.ld, A confidcntial relationship may be cstablishcd by proof that the ullcged doncc possesscd a Power-of- Attomey over u [principal's] assets, IlcIII v. McCormick, 425 Pu,Super 432, 625 A.2d 682 (1993), As statcd by Justice Robel1s in Fostcr v, Schmitt, 429 Pu, 102,239 A,2d 471 (196R), "if there be any c1earcr indiciu of a confidcntial relationship than the giving by one person to unother of u Power-of- Attomey over the timner's entire life savings, this court hus yet to see such indiciu." Id at 108,239 A.2d at 474, Once a confidential relationship is established, the burden then shilis to the donce to show that the gin was fi'ce of any taint of undue inllucnce or deception. Estate ofClurk, 467 Pa, 628,359 A,2d 777, 7R1 (1976), Consequently, in this case, the existence of the power-ol~attorney eSlablishes u eonfidentilll relationship and shills the burden to the Attomey-in-Fact, und thc other donccs, to show that the gills were free of any taint of un due inllucncc or deception, Sub-Issuc C: If II is dctermincd thut the lIencrul lungulIJle of l'luinllfrs l'owcr-of-Allorney grunts Iltc Atlorncy-in-Fuetthe spcclfie pOlI'cr to mukc Jlifls uud the burdcn relllllins wilh thc l'luinliff to rcbutlhc prcsumption thutthe gifts wcre vullll, wus Ihc trunsfcr IIf usscls 1'1'011I thc UIIIllC of 1'llIlulilTincousistenl \l'lIh prudcnt cstllle plunnlnll or finllnclullllunugclllcnt for the Ilrincipul or inconsistcnt \l'1I1t Ihe knowulll' probuble inlent of thc Ilrinclpal'! Even if the court finds the powcr tomuke gills from the gcncrallunguage of the Powcr-ol~Attorney. the action tllken hy Mary Ilelle Wcaver under this powcr to muke gi lis was not consistent with prudent estate, planning or finunciallllunugement lilr the principal and wus not consistent with the known or probable intent ~llinciuul, 20 Pa.C.S,A, Scction 5603(u)(4), As ulilrcmentioned. the Pluintill' usserls thut the term linunciulmanngement rclcrs to invcstment slrntegy including such issues as nlte of retull1 and sccurity of the investmcnt. Since f\mds were removcd from one aceoultt ut a savings and 10lln ussociation tOllther accounls lit the same savings und loanassocintion. its does nllt nppear that there was uny financilll munagenwnt aspect to the excrcise of the Power-ol~Attorney, The only chnnge which occurred was the title 10 the usset from the IlIlmC of the Plaintiff loan investment out of the uame of the I'luintiff, The estute piunuing initiatcd hy the Attorney-in-Fucl wus unbalanced, "provided lilr the Attllrney. MAnK, \\'I:IGlt ANn "LUKINS - ^1lt11'NIV5 AI lAW l;.on LA'i' ~INn StlUTT !.llIl'll(N'iIlUIUi.I'A 172!i1 in-Fuct und her issue but il:nored the I'laintitT and his issue. This cannot be construcd as prudcnt planning fi.Jr the principal. On thc eontrury. it appears to have only been prudent planning to providc ti.Jr the Attomey-in-Factund ultimately ti.lr hcr children by u prior marriage, The transfcrs were not made to insure u sound, sccure, conscrvative return or invcstment. Thcre was no difterence in the form of the investment or return. In addition, the action taken by the Attorncy-in-Fact was inconsistent with thc known or probable intent of the principal Willimn S, Weaver. !\Ir. Weaver accumulated his assets by wisely investing eamings from his toils as a laborer. llis inveslmcnt strulcgy was like his lifestyle, conservative and frugal, nut frivolous, It would bc out of ehar.Jcter Ii.Jr Mr. Weaver to intend to make substantial gins of his assets, There is no past history of gin-giving, In particular. there is no past history of making gins to his stepehildren. Mr, Weaver had not cstahlishcd an active relationship with his stepchildren, Also, Mr. Weaver states presently that he did not intend for the 1'0wer-of~Attorney to extend the power to make gills to the Attomey-in-Fact. During the marriage there is no evidencc that any assets were titled in the name of Mary Belle Weaver alone, Surely, William Weaver would not have intended the current result whereby his hard earned savings would end up in the hands of his stepchildren during his lifetime, William S, Weaver further testified thatthcre werc no discussions with his wile whereby she could have ascertained his intent with respcctto the disposition of his estate so as to support the transfer of assels such as was accomplished through the use of the Power- of~Attorney. Sub-Issuc I): md the Attorncy-in-Fllct, Mllry IIcUe WCII\'Cr, brclleh hcr fidueillry dnty to WiIIillm Wcavcr by not furthering nor IIdvllncing the interests of Mr. WCII\'er as rC1lulrcd nndcr the IlIw of agcncy'l The Attomey-in-Factowing a fiduciUl)' duty to the principal, Mr, Weaver, liS his agent, breaehcd that duty, The present state ofthc law on a Power-of~Attomey is gencrally provided for by statute at20 PA,C,S,A Section 5601 et scq, However, even though statutory direction is preferred over thc common law. I Pa,C,S.A. Scetion 1503 - Section 1504. the common law may bc applied together with the statutory provisions unless the statutory dircction is c1ellr and IIdequatc. Cf, Harcourt v. Gen. Acc, Ins, Co" 416 Pa,Super 155,615 A.2d 71, 75 (1992), The statutory direction is ncither c1car nor adcquate, Since prior to 1974 and thc first statutory cnactment concerning thc Powcr-ot~Attorncy, the IIIW regulating Powers-ol~Attorney was based cntirely on thc common law of agency, Rcifsncider at21, 610 A,2d l)60, Under thc eommonlllw of agency, an allol'llcy-in-tltctowed a Iiduciary duty to thc principal. Thc prcscnt statutc docs not address dutics, It only addrcsses powers, It is unlikcly thatthc legislature inlended to disregard thc dutics of the Attorncy-in-Faet. Because thc prescnt statutory provisions arc inadequate to guidc the partics in this disputc. the common law of agcncy should be considercd, Undcr the law of agcncy, un agent, having a Iiduciary duty to the principal. has a duty to uct with utmost good Haith and loyalty in litrthcring and advancing thc principal's interests, (iarbish 1', Malvern Federal Savinl:s and (,oan. 35R l'a,Supcr 282.517 A,2d 547, 553 (19R6); Sylvesler v, Beck. 406 l'a, 6ll7. 17R A,2d 755. 757 (1962), Furthcnnnrc. an ugent should usc his principal's pl'llpcrty only inllllvuncing thc business of the principal. and may not use iffi.lr her pcrsonal purposc without consent. Kern's Estate. 176 I'a 373. 35 A, 231 (I R96), MAnt<. WI.:IGll AND PI:IlKINS - AITOUN[VS AT tAW - 126 [AST I{ING 5Tnt1:T. 51jlJ1llENSnuno, PA. 11267 ~) ~ I"'- ~ "1 -- ~t '" CJ ":l'" , Q" :f en . ":1- = 1'- '-l 11 1... .., ~ CJ ~ oJ t..l ~ , ' <.., ('Y') ,,j c-~ (.j \i) '" ::t- :::r- I'J \:} tI >- 0..: I a' :r;: ~) . !~ ~ ~;i III z - ~ ;.c ~ l !!l~ el ~ ., ~~ a..$E-:'lil I .... ... j <'" I~ .... ~ Q ~?:!;!~ ... ail z... j Z _ M ... "Cl ~= <<r.;~t:[ri II II . ... II i~ La.::r.:! . c_ I IllI " .... ...l i:;:.c to; .,!:: J g!"" ~: ~ II ,,"- "~c 1:1 III ~;o "- ~B ;P< CJe ~Q" f ~ ~ ,,-:: ~ !~ ~ ~ ~(j <:!i~!:l", . . -.. S I III ~. I t:~ ;.c - Ill: :: ! ~I~ ~= 4( 'I; ~I ~ ~ ... . ~~ I> 1IIlI:I"'~ '. . , MARK. WUI;U; ANUI't:RKINN. A I 11IM'!,!' A I I.A\\ 116 .:~'I KI'" NIMII1. SII'''' "HIM';, I""~, 11111 l,,, I'"'''' , 11111 ~Jl.1J!R .'", 11111 5Jl-6~~1 . . WIl.LlAM S. WEAVER, Pluintifl' IN TIlE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY v. ESTATE OF MARY BELLE WEAVER, Dcccuscd, and BARRY P. LOMBARDO, JOlIN E, LOMBARDO and JOSEPH A. LOMBARDO, Defendants NO. (1'1. :V)ljl) t~ . 7~ ( fl1 EQUITY COMPLAINT TO DECLARE AND ENFORCE CONSTRUCTIVE TRUSTS NOW eomcs the Plaintiff: William S, Weavcr, by and through his attorncys, David P. Perkins, Esquirc, und Mark, Weiglc und Perkins and pctitions this Court to declare und enforec construetive trusts und in support thereof represents thc following: I. Pluintifl'Willium S, Weaver is an adult individual residing at801 North Hanover Street, Carli sic, Cumberland County, Pennsylvania 17013. 2. Plaintifl's spouse Mary Belle Wcaver died intestate on January 31, 1994, in Carlislc, Cumbcrland County, Pcnnsylvaniu 17013. survived by the following heirs at law: u, William S. Weaver, spouse b. Barry p, Lombardo, son e. John E, Lombardo, son d, Joseph A. Lombardo, son e, Vivian K, Plunkett, daughter f. Children of Judy Wilson, deceased, as follows: (I) Duniel Wilson (2) Puula Peiper (3) Stcve Wilson (4) Donald Wilson 3, Defendants, Joseph A. Lombardo and Burry P. Lombardo are eurrcntly the personal representatives of the Estate of Mary Belle Weaver, deeeased, with an uddress of e/o Jamcs D. Flower, Jr., Esquire, Flower, Morgenthal, Flower & Lindsay, II East High Street, Curlisle, Pennsylvania 17013. 4, Dclendant, Barry E. Lomhardo is the son of Mary Belle Weaver and is an udult individual residing at333 Calvary Roud, Carlisle, CUlllberlund County, Pennsylvania 17013. 5, Delendul1t, John E, Lombllrdo is the son of Mary Bellc Weuver und is un udult individuul residing ut 74 lleuther Drive, EustHurtlilrd. Conneetieut 0611 R. 6, Delendunt. Joseph A. Lomburdo is the son of Mury Belle Weaver und is un adult individual residing at I R95 Ruehcl Driv,~, Curlislc. Cumberlaud County. Pennsylvuniu 17013. 7, Defendants. Burry p, Lomburdo. John E, Lombardo. Joseph A, LOlllburdo, together with Vivian MARK, WEIGLE AND fJEUKINS - AlTORNtVS At LAW - 126 EAST KING SlUttT _ StllPPENSnURG. J1A. 17257 K, l'lunkctt and Judy Wilson, deceased, ure the step-childrcnofthe Pluintill: William S. Weaver. 8, On April 19, 1993, Pluintitl' Wi II il1l11 S. Weuver grunted a Power.of~Altorney to his wife, Mury Bclle Weaver, u copy of said Power-ol~Attorney is uttllched hcrelo, incorpornted herein by relerenee, and murked Exhibit "A". Following the cxccutionofthe alilresaid l'ower-ol~Allorney,over u period of up proximately six (6) months. Mary Bellc Weuver trnnslerred substantial us sets comprising thc bulk ofPluintill's liquid assets Ihllllthcjoint nllmes of Plaint ill' Wi II illlll S, Weaver and Mury Belle Weaver, his wile, to Mury Belle Wcavcr individulllly, A purliullistof ussels trnnsferred by Mury Belle Weaver urc sctli1l1h inalctter from York Federnl Savings und Loan Association duled Murch 7. 1994, a copy of which is attuehcd hereto. marked Exhibit "13". uad incol'pol'Uled hercin by relerence. 9. The transfer of the ulilrementioned assets fhllll Plaintifl's ownership wus uecomplished without Plaintif1's knowledge, without Plaintiff's consent. und contrnry to the wishes und the intenlions of I'laintitl: 10, The actions of Mary Bellc Wcaver in translerring Plaintill's assets without consideration, without Plaintill's knowledge or conscnt, and contrury to the wishcs and intentions of the Plaintill' constitute a breueh of the Iiduciury dUly of Mary Bclle Weaver liS agcntlilr the PlaintilT. II. On or about August 9. 1993. Mary Belle Wcaver translerred Ihe titlc 10 Oldsmobile Ciera autolnobilc. vulued ul upproximatcly Ten Thousand Doll III'S ($1 O,1I00,lI(1) without considerntion from thc individuulnume of Plainlill' William S, Weaver into the individuulname of Mary Belle Weaver, 12. Said transferoftitlc to the 1992 Oldsmobile Cieru uutllluobile was done without the knowledge or consent of the Pluintift: directly contrary to the wishes and intentions of Ihe PllIintill: and in brelleh the fiduciary duty of Mary Belle Weaver as ugentlilr Willium S, Weuvcr, 13. On or about Muy 21, 1993, Mary Belle Weaver. without the knowledge or consent of Ihc Plaintill: transferred approximalely Tcn Thousand Dollurs ($10,000,00) into account number lOll- 217458 atthc York Federal Savings and Loan Associution with prineipalofticcs located at 101 South Gcorge Strcel, p, 0, Box 1506R. York, Pennsylvllnia I 7405-706R entitled in Ihe name ofMury Ilellc Weuvcr and Defendant. Joscph A. LOll1burdo, 14, On or about Muy 21, 1993, Mury Bclle Wcavcr, withoutlhe knowledgc or consent of the I'laintill: transferred approximately Ten Thousand lJolllIl's ($1 O,OlllJ,OlJ) into ucconntnumber 10lJ- 217459 atthc York Federnl Suvings and Loan Association with principal ollice locuted ut 101 South George Slreel, 1', 0, Box 1506R, York I'cnnsylvaniu I 74115- 7068 cntillcd inthc nllmc of Mul'Y Belle Wcaver and Delendunt Barry p, Lombardo. 15. On or ubout July 7. 1993, Mllry Bclle Wcavcr, wilhoutthc knowledge or eonsenlofthe I'luintilr. trnnslerred approximlltely Ten Thousand Dollurs ($IO.lIlJO,lJO) into account number ROO.lJOlJ462 ut thc York Federal Suvings and Loan Associution with principaloftice located atlOI South Oeorge Streel, 1', O. Box 1506R. York Pennsylvllnia I 74lJ5-706H entitled inlhe nllmc of Mul'Y Bclle Weaver and lJefendllnt.lohn E, Lombardo, 16, Thc trnnsler of Ihc sum of approximalely Thirty Thousund Dollurs ($3lJ.OlJ(),()lJ) Iroll1lhe numes MAUK, Wl.ltiU: ANn I'tHKINS A1IUIfN[I(!j Al lAW l;!li I AS! KING ~llH.l-:l SIIlJ1rl:NSIJUIHi, I'A. 11257 ofthc Plaintifl' and Mary Bellc Wcaver to Mary Bellc Wcaver jointly with hcr childrcn werc donc without Plaintiffs knowledgc, without Plaintill's consent, and eontrnry to the wishes and thc intentions of Plaintill: 27. Thc actions of Mary Bellc Weaver intnmsferring asscls from joint ownership with the Plaintifl' into joint ownership with her children without consideration, without Plainlifl's knOlvledgc or consent, and contrary to thc wishes and intcntions of the Plaintifl' constitute a breach of the fiduciary dUly of Mary Bcllc Weaver as ngcnt flJr the Plaintifl I R, On or aner Septcmber, 1993, Mary Belle Wcavcr and/or Barry P. l.ombardo and/or Joseph A. l.ombardo rcmoved eush fhllllthe Plaintiff's residence locatcd at 42 Kenwood A venuc, Carlislc, Cumberland County. Pcnnsylvania 17013, in amount in excess of Two Thousand Dollars ($2,000.00). 19. Defendants, Barry p, l.omhardoand Joseph A, Lombardo assisted the Deeedcnt, Mary Belle Weaver inthc hereinbeflJre stated transfer of assels fhl/J! Plaintifl's ownership, 20, Plaintifl' belicves thlltother asscts of the Plaintiff including monies rcccived from Plaintifl's mother, and personal property ofthc Plaintifrwerc transferred by the Dccedent, Mary Belle Weaver with thc knowledgc and/or assistance of Barry P. Lombardo and Joseph A. Lombardo, without adcquatc consideration, and in breach of the liduciary duty of Mary Belle Weaver as agcnt for the , Plaintiff. 21. Plaintiff' did not discover the transfer of Plaintill's assets until aOer the dcath of Mary Bellc Weaver. 22. Upon discovery of the transfcr ofPlaintiO's asscts, Plaintilrmadc demand that Defendants return to him thc automobile and other assets which were transferred from Plaintill's namc. To date Dcfendants have fhiled and refused so to do. 23, Plaintilrbelieves that Defendants may dispose of or otherwisc dissipate thc assets whieh were transferred from Plaintiff's name to Defendants, thercby causing irreparable ham! to Plaintill'. WHEREFORE, PLAINTIFF PRAYS: a, that Defendants he dcclnrcd to hold nil SUlllS of money, on deposit or othcrwise prcviously held inthc namc of Mnry Belle Wen vel' individually, or jointly between Mary Bellc Weaver and the Defendants, as Trustecs fhr Plaintifl' and that they be directcd fhrthwith to pny over to PlnintilT such sums of money, together with interesl fhl/J! January 31, 1994. b, thnt nil sums of money currently titled or held as assets of the Estate of Mary Belle Weaver hc flJrthwith paid over to Plaintiff together with interest from January 31, 1994. e, thai Defendants be ordered to account to Plaintifr for alimonies or personal property received from Decedent, Mury Belle Wellver on or aner April 19, 1993. d, thai York Federnl Suvings and l.oan Association be enjoined and restrained Irom paying the procecds or aeeounls individually or jointly held in thc nnme or Mary Belle Weaver as morc rully selfiJrth on Exhibit "B" allached hereto, incorporated herein by reference to nnyonc other than the PlaintilI MARK, WEIGLE AND PEnKIN5 - ATTORNEVS AT LAW _ 126 EAST KING STREET _ SIUPflENSl1URO, PA. 17261 KNOW ALL MEN BY THESE PRESENTS, that I, WILLIAM S. WEAVER, of 42 Kenwood Avenue, Carlisle, Cumberland County, Pennsylvania, have made, constituted and appointed and by these presents do make, constitute and appoint my wife, MARY BELLE WEAVER, of 42 Kenwood Avenue, Carlisle, Cumberland County, Pennsylvania, my true and lawful Attorney, for me and on my behalf: 1. To ask, demand, recover and receive all and any sums of money, debts and rents due or payable, coming or belonging, or which may at any lime be due and payable and belonging to me, from any person, firm, corporation or legal entity whatsoever, including the Commonwealth of Pennsylvania, the United States of America, the Internal Revenue Service, the Social Security Administration, and any other agency of the United States of America, the Commonwealth of Pennsylvania, another State of the United States, or any municipality of the same; 2. To enter any safe deposit box of which I am a renter In my own right or Jointly with others; 3. To deposit funds In and withdraw funds from any account that 1 may have in any bank, trust company, mutual savings bank, credit union, or savings and loan association, or any other depository by whatever name known, including accounts I may hold jointly with other persons, or to deposit funds In and withdraw funds from any account In any financial Institution which my said Attorneys may create for that purpose; 4. To endorse notes, checks, drafts and bills of exchange which may require my endorsement for deposit, for cashing or for collection; 5, To sell, transfer or assign any personal property, stock, bond or other security or evidence of debt of which I am now possessed or In which I may have or hereafter acquire an Interest In; and to execute any and all Instruments necessary to make such sale, transfer or assignment; 6. To incur and pay any expense of keeping any real estate I may own or have an Interest In or which I may hereafter acquire, In good order and repair, and to pay all and other expenses necessary to keep and maintain my said real estate; to borrow on the security of said real estate and give a mortgage to secure such loan: to sell any part or all of my said real estate for such price and to such purchaser as my Attorneys shall deem advantageous; and to make, execute, acknowledge and deliver such deed, mortgage or other instrument as shall be required to carry out this power; 7. To borrow money for my account and upon the security of my estate, and to pledge as security for such loan or loans any or all of my property and estate, and to execute, acknowledge and deliver to the lender or lenders such notes, bonds and assignments as my said Attorneys may deem necessary or advisable for such purposes; EXIIIIIIT " ^ " B. To invest any funds received by my said Attorneys as may be deemed proper for such investment, in such manner as may be determined in the exercise of prudent Judgment and In such Attorneys' absolute and sole discretion; 9. In the absolute discretion of my said Attorneys, to apply any principal and Income to the payment of the cost of my maintenance and care in any hospital, nursing home, public or private Institution, or at my residence, and to the payment of any medical, surgical, dental or nursing care which may be or Is required for me; " 10. To perform any acts on my behalf consistent with prudent estate plennlng or financial management, including but not limited to: creating trusts, making additions or subtractions from existing trusts, and transferring title to real and personal property; 11. To euthorlze my admission to a medical or nursing, residential or similar facility, and to enter into agreements for my care; and to authorize medical and surgical procedures, 12. This power of attorney shall not be affected by my disability or incapacity, physical or mental, but the authority hereby conferred shall be exercised by said Attorneys notwithstanding my disability or Incapacity. 13. I give and grant unto my said Attorneys, or any substitute or substitutes, full power and authority to make and substitute in and concerning the premises an attorney or attorneys under It, and the same to revoke. 14. I give and grant unto my said Attorneys, or any substitute or substitutes, full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done In connection with my property or estate as fully to all intents and purposes as I might or could do If personally present; hereby ratifying and confirming all that my said Attorneys, or any substitute or substitutes, shall lawfully do or cause to be done therein by virtue of these presents. IN WITN~~S W EREOF, I have hereunto set my hand and seal this I f ~ day of i1 _ , 1993. I ,I ) lJav1~ JJJ~ Witness: CfuJ<>-, "D ~-i/ William S. Weaver 2 / I I York ,~ federal ~ " SA.V1NGS&LO<\N ': , 7;ASSQCIAllON ..,-7 . , March 7, 1994 Flower, Morgenthal, Flower & Lindsay 11 East High Street Carlisle, PA 17013-3016 RE: MARY BELLE WEAVER ESTATE Dear Mr. Flower I Please reference your. letter dated February 7, 1994 in regards to the above mentioned decedent. Seven (7) accounts were located in our computer system for her. ACCOUNT DATE DOD INTEREST NUMBER HOW TITLED OPENED BALANCE ACCRUED -------------------------------------------------------------- 090-172073 W. S. Weaver 02/01/83 $ 1,203.54 $ 1.98 Mary Belle Weaver 010-192931 Mary Belle Weaver 08/03/93 $ 21,067.66 $ 52.75 100-217458 Mary Belle Weaver OS/21/93 $ 10,218.67 $ 26.84 Joseph A. Lombardo 100-217459 Mary Belle Weaver OS/21/93 $ 10,218.67 $ 26.84 Barry P. Lombardo 500-194761 W. S. Weaver 05/18/90 $ 18,248.34 $ 47.91 Mary Belle Weaver 800-000481 Mary Belle Weaver 08/03/93 $ 11,170.18 $ 29.33 800-000462 Mary Belle Weaver 07/07/93 $ 10,178.01 $ 20.70 John E. Lombardo E:<h ibit "B" 101 South George Street. P,O, Box 15068. York, Po, 17405.7068 (717) 846-8777 Fax No, (717) 846.0913 WILLIAM S. WEAVER, Plaintifi' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY v, ESTATE OF MARY BELLE WEAVER, Deceased, and BARRY 1'. LOMBARDO, JOHN E, LOMBARDO and JOSEPH A. LOMBARDO, Defcndants NO, 94-2555 Equity Teon EQUITY PLAINTIFF'S BRIEF IN SUPPORT OF PETITION FOR PRELIMINARY INJUNCTION I. FACTS William S. Weaver and Mary Belle Weaver werc murried on August 13, 1965. At the time, William S, Weaver was the father of two udult daughters bom to a previous marriage, Barbara A. Hefflefingcr and Sandra M. Wingerd, At the time, Mury Belle Weaver was the mother of five adult children bom to a previous marriage, Barry 1', Lombardo, John E, Lombardo, Joscph A, Lombardo, Vivian K, Plunkett and Judy Wilson, William S. Weaver worked as a blue collar laborer for the rnilroad until his retirement. Mr. Weaver was the sole wage eurner in the household, Savings had becn accumulated and invested primarily in certiticates of deposit and bank accounts, In 1990, the Weavers purehased in joint names a mobile home on a foundation located ut42 Kcnwood Avenue, Carlisle, South Middleton Township, Cumberland County, Pennsylvania, lilr $35,900,00, The home wus purehascd with cash fromuccumulated savings, William Wcaver drew u railroad rctirementand social security income, Mury Belle Weaver receivcd social security income, In 1992, William S, Wcaver bccume ill requiring hospilali71ltion und surgery on a number of occasions, On April 19, 1993, Plninliff William S, Weaver executed a Power-of-Attorney to his wife Mary Belle Weaver, a copy of said Power-of~Attorney being altnehcd as an Exhibit to Plaintiffs Complaint to Dcclure and Enforcc Constructive Trusts filed in the above captioned uction, William Weaver stated in his testimony that he understood the purpose of the Power-of- Attomey to be to permit his wife to write chccks and sign thcm on his behulf, Mr, Weaver stated that there was no diseussion with his wife nt the timc of execution of the Power-of-Attorncy or subscquent thercto ubout tinllnciul planning for cstate planning purposes or for nursing home plunning purposes, Following exceution of the Power-of-Attorney, on or about April 30, }993. Mury Belle Weavcr utilizcd the Powcr-of~Attorney to transfer the title to n 1986 Ford F-150 truck, vehicle idcntiticution number I FTDFI5Y2GNNJ76R6, to her grandson. Bryan 1'. Lombardo, filr a purported consideration of $2.500,01l, Snid transfcr occurred withoutthc knowledge or consent of Willium S. Weaver. Until ulter the dcath of Mnry Belle Wcaver, Willinm Wcaver wus unaware that the title to thc truck had hcen transferred und has no accOllllting filr the purported consideration 01'$2.500,00 proceeds thlm the vehicle which WIIS titlcd in his individuul nllme. On August 17. }993, Mury Belle Wcuvcr trllnslerred the title tOil 19CJ2 Oldsmobile Cutluss Ciera MARK, WEIGLE AND PERKINS _ ATTORNEVS AT lAW ~, 126 [AST KINO STREET - SllIPPENSUURG, PA, 11il67 automohile, vehicle identifieution number 1 G3AL54N5N6338836, from the individual name of William S, Weuver to the individual name of Mary Belle Weaver. In early August, 1993, Mary Belle Weaver contacted Ruth Weaver, the mother of William S. Weaver, and demanded that Ruth Weaver give her money from a hank account jointly owned by Ruth Weaver and William S. Weaver. The funds in said joint bank account were the proceeds of the sale of a fann by Ruth Weaver. Ruth Weaver liquidated the joint account in the approximate amount of$35,OOO,Oll and had a check in the amount of $17,500.00 issued payahle to William S. Weaver, Mary Belle Weaver endorsed the check using the Power-of~Attorney from William S, Weaver and on August 3, 1993, deposited the sum 01'$17,500,00 into York Federal Account Number 010-192931 in the individual name of Mary Belle Weaver. According to the testimony of hoth Ruth Weaver and William S. Weaver, William was unaware of the transaction, and neither his wife nor his mother discussed it with him. On or about May 21,1993, Mary Belle Weaver withdrew the sum of$20,OOO,OO from York Federal Savings and Loan Associution, hereinafter referred to as "York Federal", account number 010 I 00 178864 in the joint names of William S, Weaver and Mury Belle Weaver and deposited the sum of the $IO,OllO.OO into York Federal certificate of deposit number 101l-217458 in the joint names of Mury Belle Weaver and her son Joseph A, Lombardo, Mary Belle Weaver deposited the sum 01'$10,000,00 into York Federal certificate of deposit number 100217459 in the joint names of Mary Belle Weaver and her son Barry P. Lombardo, On July 2,1993, Mury Belle Weaver withdrew the sum of$IO,OOO,1I0 from York Federal aecount number 1I1 0100178864 in joint names of William S, Weaver and Mury Belle Weaver and deposited said funds in York Federal uccount number 800-01l0462 in the joint names of Mary Belle Weaver and her son John E, Lombardo u resident of the Stute of Connecticut. On or ubout July 13, 1993, Mury Belle Weaver withdrew the sum of $4.1I30.32 from York Federal aecountnumber 010 100 178864 in the joint names of William S. Weaver and Mury Belle Weaver. Mary Belle Weuver died intestate on January 31, 1994. Undcr the intestate laws of the Conllllonwealth of Pennsylvania one-half of her estate will pass to her surviving husband William S. Weaver and onc-half of her estate will pass to Mary Belle Weaver's five children by a prior marriage, or their issue, 20 Pa,C.S,A. Section 2102(4), The three certificates of deposit established by Mary Belle Weaver with her three sons in the original amounts or$IO,OOO,OO each will pass to her three sons by a prior murriage as surviving joint owners of said aecounts, The gross assets of the estate of Mary Belle Weaver as set forth in Sehedule "E" oflhe Pennsylvania Inheritance Inx retumlilcd with Ihe Ofliee of the Register of Wills in and lor Cumberland County, Pennsylvania consists primarily of the following: :ill1fd V.lut II 1).lt or Utllh 1992 Oldsmobile Ciera uutomobile Fnrmers Trust Company checking nccountnumber 11-72026 York Federal accountnumher 010-11)2931 York Federnl cerlilicate deposilnumber ROO-OO1l4R I $ 8,100,00 $ 4,105,02 $21,067,66 $II,170,IR MAnK, wr:IGu: ANI) I'EUKINS - AI1UUNE'r'S AT lAW - 128 EAST KINO Sln[ET _ sttlPPEN5UURO, PA. 17267 11. ISSUE Is l'lalntlff cntltlcllto thc Injunetl\'C Itcllcf requcstcd'! To bc entitled to thc injunctive rclief requested, PlllintifT must dcmonstrate a clear right to thc relief requested, an urgent necessity Iflr prevcntion of irreflarablc hann and the likelihood that greatcr injury will be done by the court refusing the injunction tllUn by thc court granting it. IIcnnllnv. Dixon, 393 Pn, 33, 36.37.1-11 A,2d 576, 577 (l95R), Inthc flresent cnse,the nssets upon which Plnintiff seeks to imposc n constructive trust consist of funds in the hands of Defendnnts. Bnrry 1'. I.omhardo, John E, Lombardo nnd Joseph A, Lombardo, Snid funds mny easily be dissipatcd, The rcmaining nssets eonsislof an nutomobile nnd bank accounts totnlling nflprnximlltely $-I0,OOll,1I0, Defcndants havc liquidated thc nutomobile and arc belicved to have mllde pnyments to themselves liJr execulor's commission, Delendants arc also in the flosition to disburse Ihnds to the stepchildrcn of Mary Belle Weaver or their hcirs, which includc a number of out of state residenls, If thb occurs, it is unlikely that the assets can be recovered, Furthermorc, Dcfendants, Barry 1', Lombardo nnd John E, Lombardo have incurrcd or intend to ineur expcnses fill' nttorney's fees, cxecutor's commission, probate Ices, and Pcnnsylvania Inheritance tax which should not be incurred in thc event the court determines that a constructive trust should bc imfloscd and that the assets in question arc the proflerty of William S, Weaver, To determine that Plaintiff is likely to prevail on his request to imflosc a construetivc trust, the court must cxamine four sub-issues relatcd to the exercise of the Power-ol~Attontey by deeedcnt, Mnry Belle Weaver. Sub-Issuc A: Shoulll the gcncral 11Iugullge of Plllinlifrs Powcr-of-Allorncy be eoustrucll tn grant thc sllceifie flowcr to mllkc gifts or tn mllke Iimitcd gifts'! The Plaintiff's Power-of~Attorney should not be construcd to grant the sflecilie power to make gins, It is clear thatlhe language of lhe Weaver Powcr-of~Attorney docs not sflccilieally grunt to the Attorncy-in-Fnctthc flowcr to makc gitis or to makc limited gills, The word "giti" docs not nppcar in the languagc of the document. Thc Plaintiff' recognizes thnt in granting powers to the Attorney-in-Facl undcr a Power-of- Attorney instrumcnt, the Innguage of the instl'llmcntneed not explicitly identify thc powcr using specilie language which is eithcr idcntical or similar to lhe statulory wording of 20 Pa,C,S,A, Scction 56112 (n), Estate of Reifsneilkr, 531 Pa, 19. 610 A,2d 95R (1992), The spccilie power grantcd to the Attorncy-in-Fact may be interpretcd from the general Inngunge of thc Power-of~ Attorney, Id, 1I0wever, thc ruling in Reifsneidcr docs not necessarily imflly thnt nny general Innguage in the I'ower-of~^ttorney docnmentmny be construed to grant the spccilic powers of 20 I'n,C,S,A, Section %02 (n), Sce Miller Eslnlc, 13 Fiducinry Reportcr 2d, 39 I (19<)3), Thc gencral language musl bc undcrstoud to encompass such power or powers, Rcifsneider at 26, 610 ^,2d, at %2, In the present case. the languagc of the Power-of-Attorncy documcnt would hnve 10 be inlerprcted 10 inter the puwcr 10 makc gills or to make limited gills, as thc instrumcnt docs not explicitly grunt these powcrs 10 thc Attorney-in-Fact. M^Il~. wLlm r ANI> prUKI"~ ^ 110IINr YS II 1 I AW I}fi r AST KINU SlHl:t_ I SIUJll'rNSIHJUG, "II 17261 Defendants assert that Paragraphs three, ten and lilllrtcen of thc 1'0wer-of~Allomey instrument contains language which can bc construcd to grant to thc Attorney-in. Fact the spccific power to makc gins or to I11l1kc limited gins, Paragraph thrce states "To deposit funds in und withdraw funds from any accounttlmtlmay havc in any bank, trust company, mutual savings bunk, credit union, or savings and loan association, or uny othcr depository by whatever namc known, ineluding accounts I may hold jointly with other persons, or to dcposit filllds in and withdraw limds from any aecount in any financial institution which my said Attorneys may crcate lilr that purposc," The Plaintiff usserts that this paragraph merely grants thc Allorney-in-Fuetthe power to engage in banking and Iinancialtransactions with rcspectto the princiPll1 accounts deposited in accounts on deposit in financial institutions. This paragraph grants no power to the Allorncy-in-Factto disposc of such fhnds by way of gin to the Attorney-in-Fact I!r others, Paragraph ten stutcs "TI! perfimn any acts on my behalf consistent with prudcnt estate planning or Iinancial nllUlagement, including but not limited to: creating trusts, making additions or subtraetion~ from cxisting tmsts,and tnUlslelTing titlc to real and personal property." Delendants appear to rcst their case for the power to makc gifts upon thc tcrms "prudent estate planning or financial l11anagement". Thc Plaintifi'asscrts that the teon Iinancial management rcfers to invcstment strategy including such issucs as rate of return and sccurity I!fthc investmcnt. Since funds were rcmoved from one account at a savings and loan association to other accounts at the same savings and loan ussociation, its docs not appear thattbere was any Iinanciulmanagemcnt aspect to the exercise of thc Power-of~Allomey, The only chunge which OCCUlTed was the title to the asset from the name of the Plaintiff to an investment out of the name of the Plaintiff, The tcon "prudcnt estate planning" is not filrther defined. Ilowever, when said term is used in 20 Pa,C,S,A, Section 5603(a)(4), it is used in the context of a limitation upon the gin giving power which nmy be grant cd undcr the Power-of~Attorney. The statute gocs on to require that such prudent estate planning or financial management be done "for thc principal or with thc known or probable intent of the principal with respect to the disposition of his estate," It is asserted that if the court finds that the more general language contained in the present Power-of~Attorney constitutes the powcr to make gins, the court should therefilre find that such power to make gills is limited to prudent estate planning or financial management which would be beneficiulto the principal or which would be consistent with the principal's known or probable intent. Concerning paragraph filllrtecn, almost identical hlllguage was used in the Powcr-of~Allorney document interpreted in Miller Estule, suprn,allllthe Court of Common Pleas of Somerset ('ounty lound that the generallllnguage of that provision could not be interpreted to grant the spccific powcr to elect againstu will, Miller Estate at 394, Likewise, the gencral provisions of paragraph fOUl1een in the Power-of~Allorney in this case should not be interpreted to grant the specific power to make gins or to make limited gins, Even if the court wcre to interpret said language to authorize the making of gins, thut raises the qucstion whether such gills would be interpreted to be limited or not limited within the meaning of20 PA,C.S,A Section 5603(a)(l) and (a}(2), The court would be put in the position of having 10 choose one powcr over another wilh little or no guidance from the document. Suh-Issue B: If II Is delermlncd lhat the IlcneralluulluUllc uf Plalnlifrs Puwer-uf-Atturuey Ill'lInts the MAHK. WI::JOI.I: AND "[f~KINS - ATHlUNf.YS AT LAW _ 126 EAST KINO sTun.T _ Sltlf'PENSIHJHO. f1A. 17267 Allorney.ln-FlIcl Ihe specific power 10 mllke Ilifls, do Ihc ()efendllnls IUI\'e Ihc burden of showing thllt thc Illfls werc frec orony tllint of unduc influcncc or deecptlon'! The Plaintiff contends that it is the Defendants who have the burden to show that the gins to the donees were free of IIny taint of undue intluence or deception. The donee of II gift has the burden of proving a gift hy e1ellr, prccise and convincing evidencc. In re Estllte of Pappas, 42R PlI,540, 239 A.2d 298,300 (I96R), A vlllid gill requires donlltive intentllnd delivery, Estate of Kom, 332 PIISuper.154, 4111l A.2d 1233, 1237 (1984), Once a prima tllcia case of gill is estahlished hy the donee, II rehuttable presumption thlltthe gift is valid arises and the burden then shills to the contestant to rebut the presumption. Banko v. Malenecki, 499 Pa, 92, 451 A.2d 1008, 1010 (1982), The presumptiollmay be rebutted if the contestant establishes that a conlidential relationship existed hetweenthe donor and the donee at the time of the making of the alleged gill,ld. A conlidential relationship may be established hy proof that the alleged donee possessed a Power-of- Altomey over a [principal's] assets, Ilera v, McConnick, 425 Pa,Super 432, 625 A,2d 682 (1993), As stated by Justice Roberts in Foster v, Schmitt, 429 Pa, 102,239 A.2d 471 (1968), "if there be any e1earer indicia of II confidential relationship than the giving by one person to another of II Power-of- Altomey over the fonner's entire life savings, this court has yet to see such indicia." Id lit 108,239 A.2d at 474. Once II conlidential relationship is established, the burden then shills to the donee to show that the gill was free of any taint of undue intluence or deception. Estate of Clark, 467 Pa. 628,359 A.2d 777. 781 (1976), Consequently, in this case, the existence of the power-of-attomey establishes a conlidential relationship and shills the burden to the Attomey-in-Fact, and the other donees, to show that the gifts were free of any taint of undue intluence or deception, Sub-Issue C: I f it is delcrmined thai thc gcnerllI IlIngulllle of 1'llIinlifrs I'ower-of-Allorney grunls Ihc Allorncy-in.Facl thc spccific power to mllkc gifls IInd Ibc burdcn remllins wilh Ihe I'llIinliff 10 rebut Ihc presumption Ihllllhe gifls wcre \'lIl1d, WIIS Ihe Irllnsfer of lIssels frolll Ihc name of l'luinliff ineonslslenl wilh prudcnl cslale plllnninll or finllncilllmanagemenl for Ihe principal or inconsislenl with Ihe known or prohllble inlenlof Ihe principlIl'! Even if the court linds the power to muke gins from the genernllllnguage of the Power-ol:Altorney, the action taken by Mary Belle Weaver under this power to make gills WIlS not consistent with prudent estate, planning or linllncialmanagementlilr the principal and was not consistent with the known or probable intent uf.1.Iu: principal. 20 Pa.C.S,A, Section 5603(a)( 4). As aliJrementioned,the Plaintiff IIsserts that the term linancialmanllgement refers to investment strategy ineluding such issues as rate of retum and security of the investment. Since funds were removed lhllll one account at u savings and loan association to other accounts at the same savings and loan association, its does not appear that there was any Iinllncialmanagement aspect to the exercise of the PO\\'er-ol:Attomey, The only change which occurred was the title 10 the asset from the name of the Plaintiff to an investment out or the name llfthe Plaintiff, The estate planning initiated by the Attomey-in-Fllct was unbalanced, It provided lilr the Attorney- MAnK, WEIGLE AND Pl:!IKINS _ ATTORNEVS AT l.AW - 126 EAST KING STREET - SIiIPPENsUUfm. fJA. 17257 in-Flletund her issue but i~nored the PllIintiff und his issue, This cunnot he construed us prudent planning Ihr the principal. On the conlrury, ituppeurs to huve only heen prudenl plunning to provide for the Attorney-in-Fuetund ultill1l1tely 1111' her children hy II prior lI1urriuge. The trnnsfers were not Illudc to insure u sound, secure, conservutivc rcturn Ilr investll1ent. There wus no difference in the forll1of thc investlllcntor rei urn, Inuddilion, the lIction tuken hy the AlIorney-in.Fuct WllS inconsistent with the known or prohllhle intent of the principal Wi Ilium S, Wellver, 1'.1r. Weaver uccull1uluted his usscts hy wisely investing earnings Iroll1 his toils liS nluhorer, I lis investment strategy was like his lifestyle, conservlItive und lrugul, nOllrivolous, It would he out of eharacler for 1'.1r, Weuver to intend 10ll1uke suhstantial gills of his lIssets, There is no pllst history of gill-giving, In partieulur, there is no pllSt history ofnmking gills to his stepchildren, to.1r. Well vcr hud not estuhlished an activc relationship with his stepchildrcn. Also, Mr. Wcaver states presently thllt he did not intend 1111' the Power-ol~AlIorney to extend the power to 1I111ke gifts to the AlIorney-in-FlIct, During the 1I111rriage there is no evidence tlmt any IIssets were titled in the nall1e of Mllry Belle Weaver II10ne, Surely, Williall1 Wellver would not huve intcnded thc current result whereby his hard earned savings would end up in the hands of his stepehildren during his Iilelime, William S. Weaver lirrther testilied that there were no discussions with his wifc whercby she could havc ascertained his intent with respect to the disposition of his estate so liS to support the transfer of lIssets such as WllS accomplished through the use of the Power- of-Attorney. Sub-Issue 0: Ilid the Atlorne)'-in-FlIet, l\1uI")' Helle Weu\'Cr, breueh her fiduciul")' dut)' to WilllullI Wea\'Cr by not furthering nor ud\'uneing the interests of I\1r, Weu\'Cr as re1lulred under the lu\\' of agency'! Thc AlIorney-in-Factowing a Iiduciury dUly to thc principal, Mr. Weaver. liS his agenl, hreached thut duty, The present statc of the IIIII' on a Power-of-AlIorney is generally provided Ihr by statute ut 20 PA,C,S,A Seetion 56111 et scq, Howcver, eventhongh statutory direction is preferred over the comll1on law, I PlI,C.S,A. Section 1503 - Section 1504. the cOll1mon 11IW lI1ay he applied together with thc stututory provisions unless thc stututory direction is e1ear und udequate, Cf, Harcourt v. Gen, Acc, Ins, Co" 416 Pa,Supcr 155,615 A.2d 71,75 (1992), The stulutory direclion is neilher elellr nor adequllte, Since prior to 1974 und the Iirst stututory enactmcnt concerning lhe Power-ol~Attorney, the IIIII' regulaling Powers-of-Attorney WllS hased entircly on the cOll1mon 11IW ofugency, Reifsncider lit 21, 6111 A,2d 960, Under the cOll1monluw of lIgcncy, IInllttorney-in-lilctowed IIliduciary duty tolhe principal. The present slulute docs not lIddress dulies. It only addresscs powers, It is unlikely that the legislllture intended to disregurd the dUlies of the AlIorncy-in-FlIct. Because thc present stululory provisions life inudequate to guide the parties in this dispute, the cOll1l11onlllW of agency should hc considered, Under lhc law of ugency, lInllgent. hllving 1I Iiduciary duty tolhe principal, has 1I duty touct with ulmost good Iilith lInd loyulty in fnrthcring lInd lIdvancing thc principlll's interests, Garhish v, Mulvcl11 Federal Savin~s IUld I.oan. 35R Pa,Supcr 2R2. 517 A,2d 547. 553 (llJRfl); ~1'eSler v, Beck. 406 Pu, 6117. 17R A,2d 755. 757 (I %2), Furtherll1ore. lInugent should usc his principal's prnperly only in udl'llncing the husiness ol'the principal, und may noluse il' Illr her personlll purpose without consent. Kern's Eslute, 176 I'll 37], 35 A, 231(1 R%), MARK, WEIGLE ANn f'r.nKINS - Al1nnN[V5 AT tAW - 120 EAST KINO SllH:1:1 _ 5IU"Pl:NSIJUllfi. l'A. 17257 . Pi 0 ...... III 1Il ;!.,; f:j,., z - ~ .< 5~ ~ ~ t. ol O<:<'l:r: ~~8":~lil I I>< 1>I:l:l>< :>Ol<l ...1>< Z <olin '" . "i <... 0 ~ 0 u ~u Q-~7Cl~ ~:>< '" .., r: ~~ Z l-CIl 7,-,... '" .. .. <o(t.:lt:t:~ u~ ," 1>1 "tl "tl u ol:>< r: r: ...:; Wl:r." .C_ t 0 . r: ol 0<: .. <I ". - t.:l ,... I r..U 0<: ," wO<: '" i!l~ ...l1o:~...;J_ 0 ~~ <'l<0 <I l.:I " $ ;, Z C ~! :><<'l;! Q ~~ - ~ liIC 0 .. f ~I>< WlC ."'::" 0<:'0 < i:cI:\I:;';~< ~r:'" <~l::_'" .. ::!:: 81>1 . 0 ~ -e:/= I ~e 1Il ~ ..~ .. ~! Cl: ~ 0'0 0 ~ ~~~~ < . Pi I>< ~ ... .. < l:: zr.. ol <<lZ<'l ...0 ol f-<U:I:e ... ... . lIl<lO tl :.. > W<=I.,ol . . . M"'HK, WUliI,t; ...NIII't:HKINS, oIirlltMNt.\'h All.Aw 116 t;", K"" SIMIU: SllIm ...,'..;, I'."., nl57 TIIHIIII'!" 17171 531.7311 f 'h,l7I7I 5lZ-6151 HAY 1 ? ~I;l\t."- , WILLIAM S. WEAVER, I'lnintifT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY v. ESTATE OF MARY BELLE WEAVER, Deeensed, nnd BARRY 1'. LOMBARDO, JOHN E. LOMBARDO and JOSEPH A. LOMBARDO, Defendnnts NO. EQUITY I'ETITION FOR I'RELlMINAIW INJUNCTION PURSUANT TO I'A R.C.I'. 1531 1. Your I'etitioncr hcrcin is the nbove namcd I'lnintill: Willinm S. Wcaver, on adult individual rcsiding at801 North Hanover Strcet, Cnrlisle, Cumberlnnd County, Pcnnsylvnnin 17013. 2. Your Respondents nre the above nnmed Defendnnts being the Estntc ofMnry Bcllc Wenver, deceosed, nnd the personnl represcntativcs thereot: Joseph A, Lombardo ond Bnrry 1'. Lombardo with nn nddress of c/o Jnmcs D. Flower, Jr., Esquire, Flower, Morgenthnl, Flower & Lindsay, II East High Street, Carlisle,l'ennsylvnnia 17013, and individunlly BnIT)' 1', Lombardo, an ndult individual rcsiding nt 333 Calvary Rond, Cnrlisle, Cumberlnnd County, I'ennsylvnnin 17013; John E. Lombnrdo, nn adult individual residing nt 74 Hcnther Drive, Eost Hartford, Conneeticut 06118; and Joscph A. Lombnrdo, nn ndult individual residing nt 1895 Rnchcl Drive, Carli sic, Cumberlnnd County,l'cnnsylvnnia 17013. 3. Petitioner herein has filed n Complnintto Declare nnd Enforce Construetive Trusts ngninstthe Respondents ns n rcsult of transfer of various nssets to thc Respondents without consideration. 4, Snid nssets nre in thc sole possession nnd control of Respondents. Among the nssets in the possession ofthe Rcspondents are various bank accounts and certificntes of deposit now or formerly on deposit al York Federal Snvings nnd Lonn Associntion ns more fully set forth in Exhibit "13", attaehed hercto, mnde a part hcreof and incorporated herein by rcfcrenee. 5. Respondents arc in possession of n 1992 Oldsmobile Ciera automobile and other bWlk nccounts, or proeecds therefrom, transferrcd from Mnry Bclle Wen vcr, 6, Respondents, Bnrry 1'. Lombnrdo and Joseph A, Lombnrdo nre in possession of a bank nccount in the nnme of thc Estnte of Mnry Oclle Weaver, 7. Respondents hnve in lit lensl one instnnee taken posscssion of, nnd depreciated by operation thereol: I'lnintift's 1992 Oldsmobile Cieru Ilutomobile, 8. Without court intervention Respondents arc in n position to turther disposc of or otherwise dissipllte the Ilutomobile Ilnd other Ilssets which could Ilvoid or dcfent the constructive trust sought to be declllred by I'lnintill'in this netion, thereby cllusing immedinlc Ilnd irrepnrublc hnnnto I'lnintitl: MARt<. WEIGLE AND PERKINS ~ All0RNEVS AT tAW - 126 EAST lUNa STnEET _ SttIPPENSOURO. PA. 110lS7 I verily that the statcments madc in thc tbrclloinlll'leadinll arc tme nnd correct. I undcrstwld that unswom falsilicationto authorities, false slatemenls hcrcinnrc made subject 10 the penalties of I R I'n.C.S. Section 4904 relating to [, : i" "~ J.C... r-~ \ ',1 ,> l.Jl I(~VL V I r. Date: f"'''::'}'.:2. I I G V ""' William S. Weaver MARK, WEIGLE ANn PERKINS - AttORNEYS A1 t.AW - 126 EASt kiNa SlAEET _ 5UIPPENSDURG, PA. 11267 / I I York s Federal i '-=.j &tWINGS & LO\N . 7 ~ ASSOCIATlO\l Flower, Morgenthal, Flower & Lindsay 11 East High Street Carlisle, PA 17013-3016 RE: MARY BELLE WEAVER ESTATE Dear Mr. Flower, March 7, 1994 Please reference your letter dated February 7, 1994 in regards to the above mentioned decedent. Seven (7) accounts were located in our computer system for her. ACCOUNT NUMBER HOW TITLED -------------------------------------------------------------- 090-172073 W. S. Weaver Mary Belle Weaver 010-192931 Mary Belle Weaver 100-217458 Mary Belle Weaver Joseph A. Lombardo 100-217459 Mary Belle Weaver Barry P. Lombardo 500-194761 W. S. Weaver Mary Belle Weaver 800-000481 Mary Belle Weaver 800-000462 Mary Belle Weaver John E. Lombardo DATE DOD INTEREST OPENED BALANCE ACCRUED 02/01/83 $ 1,203.54 $ 1.98 08/03/93 OS/21/93 $ 21,067.66 $ 52.75 $ 10,218.67 $ 26.84 OS/21/93 $ 10,218.67 $ 26.84 05/18/90 $ 18,248.34 $ 47.91 08/03/93 $ 11,170.18 $ 29.33 07/07/93 $ 10,178.01 $ 20.70 Exhibit "B" 101 South George Street. P,O, Box 15068. York. Po. 17405.7068 (717) 846.8777 Fox No, (717) 646.0913 \In ~ ~ t-.. '" , ~ , , '. :r .-+ ,.. f,") = 'I,-.r -rl. -' \,)'-' r>: 0>. -C% . ~I i~i 1 ... ,., .... ., , 0 t:: ..J Z ~ .... N 'l-l <>-0 1-.... .. ~ :t<1= lJ.l:S N...l!::... I ~CS~~~~ ~<N'" ] N~ '" ! . ; '" .., lJ.lz..:'iI-> o ~., - il~ ~ L? ""... tIl D(W ';>0 PI c::::i 8 ~:r:;;: - wl:le3< ~ O.:l;!~!:2~ ::I:(~en ;1 ~ !!i. 0000 g ::Ec::~~:r:z ...l~...l2: ,1JJ_oI-W lJ. ,lJ....l ~ C::~~l:tIlD: ci ~ . . , lJ.lo <<w 0- ~i ~ t/I ~ 0 lJ.l...l tIll:(lfi...l ~ , wUJ 0 > ml o Ii l:: :::!!! ~l:l::E1:( ..J < ..J <00(< al e ~ IJ. ~ -.~_u < ---- u x ---- . . . . c:\wpJl\wUlvcr,w . WILLIAM S. WEAVER, Plaintiff IN mE COURT OF COMMON PLEAS OF CUMBERlAND roUNIY, PENNSYLVANIA v. NO: 94.2555 EQUITY TERM ESTATE OF MARY BELLE WEAVER, Deceased, and BARRY p, WMBARDO, JOHN E. LOMBARDO and JOSEPH A. WMBARDO, 1. 2. 3. 4. Road. 5. 6. 7. 8. Defendants Admitted. Admitted. Admitted. Admitted, except that Barry P. Lombardo resides on Cavalry Road, rather than Calvary Admitted. Admitted. Admitted. Admitted in part and denied in part. It is admitted that William S. Weaver executed a Power of Attorney in favor of his wife, Mary Belle Weaver, and that Mary Belle Weaver did transfer a portion of the joint assets of the parties In to her name individually. It is denied that the portion is properly identified as "the bulk of Plaintiffs liquid assets" since such assets were predominantly joint . c:\wp'l\wcnu,1GI assets. The home that belonged to the parties was not so transferred, nor were substantial other liquid assets, which remained In joint names. It is admitted that the information included In the letter from York Federal Savings and Loan Association dated March 7, 1994 and marked as Exhibit "B" to Plaintifrs Complaint contains accurate information. The transfers of question were made In the context of Mary Belle Weaver's awareness that her husband would be entering, or had entered, a nursing home, that the payments for the nursing home would exceed the Income of the parties, and that it could be reasonably anticipated that over a period of a few years the accumulated assets of William S. Weaver and Mary Belle Weaver could be consumed by the nursing home payments. Her intentions were to safeguard a fair portion of the assets for herself in anticipation that her husband's assets would soon be exhausted, and her actions were within the authority of the powers of attorney executed by William S. Weaver in her favor. 9. Admitted in part and denied in part. It is admitted that the transfer of the assets was accomplished without Plaintifrs knowledge and without the Plaintifrs express consent, although it Is believed that had his wife explained the reason for the transfers to him, he would likely have consented, and it is specifically denied that those transfers were expressly contrary to his wishes and intentions. 10. Denied. On the contrary, the actions of Mary Belle Weaver constituted a reasonable and sincere attempt to allocate the assets of the parties In a fashion consistent with prudent financial planning for the family. 2 o:lwplll_'u,... 11. Admitted In part and denied In part, It Is admitted that the transfer of the title occurred, but It Is specifically denied that the Oldsmobile Clera automobile had a value of Ten Thousand ($10,000.00) Dollars. 12. Denied. Said transfer was not a breach of the fiduciary duty of Mary Belle Weaver, but was consistent with the financial planning set forth above, and consistent with the fact that it did not appear that William S. Weaver would be personally capable of driving the automobile anymore, and further it is the belief of Defendants that had Mary Belle Weaver explained the reasons for such a transfer to Plaintiff, Plaintiff would likely have consented and such transfer would not have been transfer to his wishes or intentions. Said transfer was also within her authority under the power of allomey executed by her husband. 13. Admilled in part and denied in part. It is admilled that such a transfer took place, and that It was without the specific knowledge or consent of Plaintiff, but It was within the authority of Mary Belle Weaver under the Power of Allorney, and would likely have been consented to by Plaintiff had it been fully explained to him at the time. 14. Admilled In part and denied In part. It is admitted that such a transfer took place, and that it was without the specific knowledge or consent of Plaintiff, but was within the authority of Mary Belle Weaver under the Power of Attorney, and would likely have been consented to by Plaintiff had it been fully explained to him at the time. 3 c:\wpSI\waver.14I 15. Admitted In part and denied In part. It Is admitted that such a transfer took place, and that It was without the specific knowledge or consent of Plaintiff, but was within the authority of Mary Belle Weaver under the Power of Attorney, and would likely have been consented to by Plaintiff had it been fully explained to him at the time. 16. Admitted in part and denied in part. It is admitted that said conveyance was made without Plaintiffs specific knowledge or consent, but it is believed by Defendants that had the reason for said conveyances been explained to Plaintiff, he would have consented to them, and that they would not have been contrary to his wishes or intentions. It is further averred that said conveyances were within the authority of Mary Belle Weaver under the Power of Attorney granted to her by Plaintiff. 17. Denied. Said conveyances were not a breach of the fiduciary duty of Mary Belle Weaver, but were within her authority as attorney-in-fact for Plaintiff. 18. Denied. Neither Mary Belle Weaver, Barry P. Lombardo, nor Joseph A Lombardo removed cash from Plaintiffs residence located at 42 Kenwood Avenue, Carlisle, Pennsylvania, in an amount in excess of 1\vo Thousand ($2,000.00) Dollars. 19. Denied. Barry p, Lombardo and Joseph A. Lombardo did not assist Mary Belle Weaver in the transfers of assets. They are aware of said transfers of assets in that she brought signature cards to each of them for the Certificates of Deposit and asked them to sign said signature cards. The signature of Barry P. Lombardo and Joseph A. Lombardo on said signature cards was their only involvement in any transfer of assets. 4 (" r- .~.. t ; : I , , : <oj Cl -I f;~ . , c . i J ., r;. I. ; L I , Ld , 'Ja .. I . '.', .'