HomeMy WebLinkAbout21-2001-92 / 21-2002-540 Orphans'
IN RE: ESTATE OF : IN THE COURT OF COMMON PLEAS OF
MILDRED J. GERBER : CUMBERLAND COUNTY, PENNSYLVANIA
An Incapacitated Person : ORPHANS’ COURT DIVISON
: NO. 21-01-92
:
:
IN RE: MILDRED J. : IN THE COURT OF COMMON PLEAS OF
GERBER TRUST UNDER : CUMBERLAND COUNTY, PENNSYLVANIA
AGREEMENT DATED : ORPHANS’ COURT DIVISON
DECEMBER 19, 1997 : NO. 21-02-540
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., July 7, 2005
These Orphans’ Court cases arise out of pro se objections filed to accounts
submitted by a bank serving as guardian of an incompetent’s estate and as trustee of a
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trust which she had established. A court-appointed auditor concluded that the objections
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were meritless. When no exceptions were filed to the auditor’s report, this court
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confirmed the accounts in accordance with the recommendations of the report.
Notwithstanding the absence of timely exceptions, the objector then filed a
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motion, at an incorrect docket number, to extend the time for filing exceptions and an
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appeal to the Pennsylvania Superior Court from the confirmation of the accounts. Her
motion for an extension, which in the court’s view lacked merit, was not granted, in part
because of the divestment of lower court jurisdiction by virtue of her appeal to the
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Superior Court.
The bases for the appeal to the Superior Court have been expressed in a seven-
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page, 35-paragraph statement of matters complained of on appeal. The more significant
of these paragraphs for present purposes appear to be as follows:
1
See Objections of Mildred J. Gerber Estate and Trust, an Incapacitated Person per Decree Dated
03/22/01, filed November 24, 2003.
2
Auditor’s Report, filed March 29, 2005.
3
Order of Court, April 25, 2005.
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Petition of Marilyn Gerber to Extend the Filings of Exceptions of the Auditor’s Report by 30 Days, filed
May 3, 2005.
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See Notice of Appeal, filed May 19, 2005.
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Order of Court, May 31, 2005.
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See Statement of Matters Complained of on Appeal, filed June 15, 2005.
32. The Auditor failed to inform the Petitioner of a schedule of deadlines
for filing of Objections; failed to make the original documents available
to her in a timely manner despite numerous requests and failed to instruct
the Court of serious problems that occurred with the investigation of this
Audit.
33. This Court made no attempt to ask questions, ask for a hearing and
signed off on the Auditor’s Recommendations in his Brief despite
numerous legal issues as breach of due process, consistent and legally
supported case law.
34. This Court failed to hear and answer the Petitioner’s Petition to ask
for a reconsideration of an extension of time to file an Answer of
Objections to the Auditor’s Recommendations in his Brief which he filed
on March 29, 2005.
* * * *
19. PNC Bank hired Rhoads & Sinon as their outside attorney and
generated legal fees in excess of $80,000 which constituted wasting of
the Estate and Trust. PNC Bank made no attempt to mediate and work
with all of the beneficiaries especially Marilyn Gerber.
20. PNC Bank failed to do a thorough and complete inventory of the
tangible personal property of Mildred J. Gerber in June 2001.
21. PNC Bank failed to file insurance claims on damage and flooding in
the home of Mildred J. Gerber. PNC Bank wasted and caused excessive
fees for utilities, lawn maintenance, managing the mail of Mildred J.
Gerber and failed to restrain Frederick E. Gerber, II who continued to
write checks from the Estate and Trust of Mildred J. Gerber despite their
appointment as Guardian of Estate[.]
22. PNC Bank failed to manage the automobile of Mildred J. Gerber
which was illegally taken out of state to Illinois in December 2001 and
did not manage the expired license plates and registration of this
automobile.
23. PNC Bank entered into a consistent hostile relationship with the
Petitioner despite that she was a full beneficiary which resulted in the
wasting of enormous amount of the assets of the Estate and Trust of
Mildred J. Gerber.
24. The Auditor refused to address the consistent delay and motions from
the Trustee and Executor, Frederick E. Gerber, II which resulted in costly
wasting of the Estate and Trusts as well as legal fees by PNC Bank and
the counsel for Frederick E. Gerber, II which was billed to the Estate and
or Trust of Mildred J. Gerber, II
On August 3, 2005, the Auditor refused and failed to address
information that Frederick E. Gerber, II was indeed in the USA and was
not protected under the Sailor’s and Soldier’s Relief Act which cost the
auditing process 6 months and ultimately wasted assets from the Estate
and the Trust.
25. The Auditor refused the Petitioner the right to view all original
documents from PNC Bank which amounted to 4,000 pages of
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documents which did not fulfill and could correlate to their expenses and
billing of legal fees for the Estate and Trust.
26. The Auditor refused and this Court did not hear Petitions filed by the
Petitioner for Sanctions on Frederick E. Gerber, II for failure to provide
all documents and accounts relating to the PNC Bank hearing. The
Auditor only allowed Frederick E. Gerber, II to be deposed one day prior
to the PNC Bank Audit hearings which were September 28,29,2004.
27. The Auditor failed and refused the Petitioner due process in full
disclosure and discovery of valuable banking and accounting receipts
and documentation from PNC Bank, Charles Schwab, and Frederick E.
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Gerber, II.
This opinion in support of the order appealed from, which confirmed the accounts
filed by the bank as recommended by the auditor’s report, is written pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
Mildred J. Gerber, who was born on November 9, 1914 and died on January 14,
2003, was the mother of Frederick E. Gerber, II, Jane N. Heflin, and Marilyn J. Gerber.
On December 19, 1997 Mildred J. Gerber created the Mildred J. Gerber Revocable Trust,
which was revised and restated on August 2, 1999 and amended on January 25, 2001.
Marilyn, Frederick, and Jane were beneficiaries of the Trust. On March 22, 2001 the
court found Mildred to be an incapacitated person due to dementia and appointed PNC
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Bank, N.A. as guardian of her estate.
A sense of the interaction between the children of Mildred J. Gerber, and
particularly of the conduct of the objector herein, may be obtained from an excerpt from
an opinion by the Honorable Edgar B. Bayley dated April 1, 2003, at No. 21-01-92
Orphans’ Court:
When we met Mildred Gerber during the course of the
guardianship proceedings she was a refined lady suffering
from dementia who was in the twilight of her life. Frederick
Gerber, Marilyn Gerber and Jane Heflin are intelligent
people. Never however, in the experience of this court, have
we seen a more hateful relationship between siblings.
Frederick Gerber and Jane Heflin can do nothing in the eyes
of Marilyn Gerber that would gain her approval or respect.
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Id.
9
See Order of Court, March 22, 2001.
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Marilyn Gerber’s vituperatious conduct assures that Gerber
and Heflin feel the same way about her. To describe the
relationship between these people as poisonous is an
understatement. At every turn of events, Marilyn Gerber’s
insentient and unreasonable demands regarding the care of
her mother drove a final wedge between these people which
made effective communication and cooperation virtually
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impossible.
PNC Bank, N.A. served as guardian of the estate of Mildred J. Gerber
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commencing on March 22, 2001. It served as trustee of the Mildred J. Gerber
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Revocable Trust commencing on October 3, 2001. Prior to the service of PNC Bank,
N.A., Frederick E. Gerber, II served as plenary guardian of the person of Mildred J.
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Gerber and trustee of the Mildred J. Gerber Revocable Trust.
On October 24, 2003 PNC Bank, N.A., filed accounts with respect to its
guardianship of Mildred J. Gerber’s Estate and as trustee of the Mildred J. Gerber
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Revocable Trust. Marilyn J. Gerber filed pro se objections to both accounts, basically
asserting mismanagement of assets, improper investing, improper involvement of
Frederick E. Gerber, II, improper expenditures, excessive fiduciary fees, and excessive
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attorneys’ fees.
The court appointed William A. Duncan, Esq., auditor with respect to the
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objections. A hearing was held in September, 2004. On March 29, 2005 the auditor
10
In Re: Appointment of a Guardian of the Person of Mildred J. Gerber, No. 21-01-92 Orphans’ Court,
slip opinion 4(Cumberland County April 1, 2003).
11
Order of Court, March 22, 2001. Reasons cited by the court for appointment of PNC Bank, N.A.,
included the indefinite duration of the guardianship required and the estrangement among Mildred’s
children.
12
Removal of Trustee and Appointment of Successor Trustee of the Mildred J. Gerber Revocable Trust,
October 3, 2001.
13
See Order of Court, December 21, 2001.
14
See Mildred J. Gerber Revised and Restated Revocable Trust Agreement, August 2, 1999.
15
See Accounting March 23, 2001 to October 20, 2003, Accounting October 3, 2001 to October 20, 2003.
16
See Objections of Mildred J. Gerber Estate and Trust, an Incapacitated Person per Decree Dated
03/22/01, filed November 24, 2003; see also Stipulation of Parties, filed September 27, 2004.
17
Order of Court, November 25, 2003; continuance of auditor, Order of Court, July 8, 2004.
18
See Transcript of Hearings, September 28-29, 2004.
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filed a Notice of Auditor’s Report and Recommendations, stating “NOTICE IS HEREBY
GIVEN that the Auditor, William A. Duncan, Esquire, hereby files the attached Auditor’s
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written report and recommendation regarding the Objections of the Accounts ….”
The Auditor’s Report set forth the following three recommended conclusions:
1. The Accounts filed by PNC for the Guardianship of
Mildred J. Gerber and the Trusteeship of Mildred J. Gerber
are confirmed without exception.
2. The request for surcharges by Marilyn Gerber against PNC
are denied.
3. All objections filed by Marilyn Gerber against PNC are
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dismissed.
In the one section of the Auditor’s Report, the Auditor noted that:
Marilyn Gerber filed Objections to the Accounts pro
se, and as such, her pleadings will not be held to the stringent
standards of pleadings drafted by lawyers. The Court must
examine the substance of her pleadings to determine if she
would be entitled to relief if the facts averred are proven.
[citations omitted]. While she has some latitude in the
conduct of the case, the Auditor notes that nevertheless, Ms.
Gerber must still meet the burden of proving her case. This
she did not do. PNC established that it had the authority to
act; that it acted and that following these actions, it filed
accounts of these actions. During the time in which PNC was
fulfilling its obligations as Guardian and Trustee, it
encountered several problems: (1) The transition of Frederick
Gerber II was less than smooth, due to Mr. Gerber’s failure to
comply with PNC’s requests; (2) Marilyn Gerber, through her
conduct, necessitated the bank to employ counsel and to
appear in court in order to respond to Ms. Gerber’s numerous
requests. These appearances and activities consumed a great
deal of staff time and the problems associated with access to
Mildred Gerber’s correspondence and financial records were
a burden on the bank.
The Auditor notes that the volume of filings in this
proceeding runs to the many hundreds of pages. Hearings
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Notice of Auditor’s Report and Recommendations, filed March 29, 2005, with the names and address
of Marilyn Gerber and Heather Zink, Esq. as persons duly notified.
20
Auditor’s Report, filed March 29, 2005.
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were held and the Objector was given opportunity in three
days of hearings to present evidence to substantiate her
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objections.
On April 25, 2005 the court issued the following order, confirming the Auditor’s
Report:
… having noted the filing of the Auditor’s Report and
Recommendations on March 29, 2005, and no exceptions
having been filed thereto, the Auditor’s Report and
Recommendations are hereby CONFIRMED and the
Auditor’s Recommendations as presented are entered as an
ORDER OF COURT. Consistent therewith, the Trustee’s
Account with regard to the Estate of Mildred J. Gerber, an
Incapacitated Person, is CONFIRMED and the Trustee’s
Account with regard to the Mildred J. Gerber Trust Under
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Agreement dated December 19, 1997, is CONFIRMED.
Following the confirmation of accounts in accordance with the auditor’s
recommendation, the Objector filed a motion (at an incorrect docket number) to extend
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the time to file exceptions to the auditor’s report, and an appeal from the confirmation.
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As noted previously, the court did not grant the belated motion to extend the filing date.
DISCUSSION
A pro se appellant “is not entitled to special treatment by virtue of the fact that he
‘lacks legal training.’” Commonwealth v. Maris, 427 Pa. Super. 566, 571 n.1, 629 A.2d
1014, 1017 n.1 (1993) (citation omitted). While a pro se litigant’s pleadings are not held
to the same standards as an attorney’s pleadings, a pro se litigant is still required to
follow the rules of procedure. See Commonwealth v. McDonough, 2000 PA Super. 360,
763 A.2d 881 (2000); see also Leidy v. Kuhn, 11 Pa. D. & C.4th 418 (Mercer Co. 1991).
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Id.
22
Order of Court, April 25, 2005.
23
Petition of Marilyn Gerber to Extend the Filings of Exceptions of the Auditor’s Report by 30 Days,
filed May 3, 2005. The Objector filed her motion to extend time under an incorrect docket number 21-
1998-00195, In Re: Fred E. Gerber, Sr. Trust, Under Agreement Dated, July 29, 1994.
24
See Notice of Appeal, filed May 19, 2005.
25
Order of Court, May 31, 2005.
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Under Cumberland County Orphans’ Court Rule 8.6-1, “[t]he auditor or master
shall file his report and give notice thereof to all parties in interest,” after which time, as
required by the Pennsylvania Supreme Court Orphans’ Court Rule 8.7(a), “[t]he report of
[the] auditor shall be confirmed in such [a] manner as local rules shall prescribe.” Under
Cumberland County Orphans’ Court Rule 8.7-2, “[o]bjections to the auditor’s report
shall be filed with the Clerk within twenty days after receipt of the notice of filing of said
report.” C.C.O.C.R. 8.7-2 (emphasis added).
In the present case, more than twenty days passed between the filing of the
auditor’s report and the action by the court approving the report and confirming the
accounts in accordance with Pennsylvania Orphans’ Court Rule 8.7(a). During this
period the Objector did not file any exceptions to the report. It is well settled that, in the
absence of exceptions filed within the prescribed time limit, exceptions will not be
“noticed by the court.” Appeal of Riegel, 133 Pa. 38, 19 A. 312 (1890). In First School
District of Pennsylvania v. Green, 86 Pa. Super. 540 (1926), the Superior Court rejected
an objector’s request on appeal to be permitted to file exceptions after: 1) the prescribed
period had passed without the filing of exceptions, and 2) the court confirmed the
auditor’s report.
A court is not obligated to hold hearings prior to confirming an auditor’s report.
In re Sweeney, 695 A.2d 426, 429 (Pa. Super. 1997). “[T]he role of the orphans' court
judge in reviewing a[n auditor's] report is similar to a review by a judge of the findings
of a jury.” Id. at 430 (citing In re Krepinevich’s Estate, 433 Pa. 78, 248 A.2d 844
(1969)). Also, due to the Objector’s failure to object to the auditor’s report in a timely
manner, issues relating to the merits of the auditor’s report and recommendations were
not before the court.
As a general rule, nunc pro tunc filings are allowed only where there is “fraud or a
breakdown in the courts’ operation.” Rothstein v. Polysciences, Inc., 2004 PA Super.
249, ¶5, 853 A.2d 1072, 1075 (2004). In the present case, the Objector did not allege
any circumstances which would entitle her to a nunc pro tunc filing of objections.
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Finally, the rule of res judicata applies to judicial approval of auditor’s reports.
See In re Emig's Estate, 186 Pa. 409, 40 A. 522 (1898); see also Appeal of Wissel, 4
Pennyp. 236 (Pa. 1884) (auditor’s findings deemed conclusive unless excepted to
specifically). The Pennsylvania Superior Court acknowledged the application of the
waiver doctrine with respect to exceptions to an auditor’s report in In re Sweeney, 695
A.2d 426 (Pa. Super. 1997). “Had [the Objector] failed to make objections or to file
exceptions, those matters would have been waived and appellant's appeal would
normally be dismissed by this Court.” Id. at 430; see Appeal of Dickey, 115 Pa. 73, 7 A.
577 (1887) (one who fails to file exceptions to auditor's report cannot except on those
grounds on appeal); Appeal of Miller, 122 Pa. 95, 15 A. 672 (1888).
For the foregoing reasons, it is believed that the Order of Court confirming the
accounts sub judice in accordance with the auditor’s report and recommendations was
properly entered.
BY THE COURT,
_____________________
J. Wesley Oler, Jr., J.
William A. Duncan, Esq.
1 Irvine Row
Carlisle, PA 17013
Auditor
Marilyn J. Gerber
717 Market Street, #317
Lemoyne, PA 17043
Objector
Richard C. Rupp, Esq.
st
355 N. 21 Street
Suite 205
Camp Hill, PA 17011
Attorney for Frederick E. Gerber, II
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Joanne E. Book, Esq.
Heather Z. Kelly, Esq.
Rhoads & Sinon
1 South Market Square
P.O. Box 1146
Harrisburg, PA 17108
Attorney for PNC Bank, N.A.
Jane N. Heflin
270 North Garfield Street
Lombard, Illinois 60148
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