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HomeMy WebLinkAbout04-02-08IN RE: ESTATE OF ROBERT M. MVMMA (7D AND NOW, comes Robert M. Mumma, II, pro se, pursuant to Cumberland County Orphans' Court Rules 3.2-1 and 3.4, Pennsylvania Orphans' Court Rule 7.1(f), and related rules and hereby petitions the Orphans' Court as follows: 1. The Honorable Wesley Oler has previously ruled on prior motions and/or petitions filed by the parties hereto as related to the pending Estate matter. 2. Robert M. Mumma died testate on April 12, 1986; his Will and the codicil thereto were probated on June 5, 1986. 3. Lisa Mumma Morgan and Barbara McK. Mumma were appointed as Executrices under the Will and as Trustees of a Marital Trust and a Residuary Trust created thereunder. 4. On January 12, 1987, William Martson, Esquire, at the direction of Arthur L. Klein, Esquire, filed a disclaimer signed by Petitioner with the Register of Wills office. 5. On December 27, 1988, the Executrices filed a petition seeking appointment of a guardian ad litem to represent all the minor beneficiaries under the Will. 1 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA • c> cp NO. 21-86-398 =~ ~, ~- -~- "~ ~ r i ~ -} -~ :.' -, -- ~-> ~, - "=~ C7 - ~-.r~~ _.~ .~_) 3 ~~ IJ PENNSYLVANIA ORPHANS' COURT RULE 71(fl 6. On December 29, 1988, then President Judge Harold E. Sheely of the Orphans' Court Division of Cumberland County granted the petition and appointed Robert M. Frey, Esquire as guardian ad litem: "for the minor persons interested in the estate of Robert M. Mumma, deceased, with authorization to represent said minor persons in all matters related to the sale of Nine Ninety-Nine, Inc. and Hummelstown Quarries, Inc. and the actions for Declaratory Judgment and other relief pertaining thereto, which actions are now pending before this Court, and in any further or other proceedings in the Court of Common Pleas of Cumberland County or the Court of Common Pleas of Dauphin County, Pennsylvania relating to or arising out of such matters." 7. On June 20, 1989, Judge Sheely issued a rule to show cause upon the Estate to show cause why the relief requested in Petitioner's Petition to Revoke Disclaimer executed on May 30, 1989 should not be granted; the rule was returnable on August 28, 1989. 8. On August 17, 1989, the Guardian ad litem filed an Answer in opposition to the Petitioner's Petition to Revoke Disclaimer. 9. On August 24, 1989, the Executrixes filed an Answer with New Matter in opposition to the Petitioner's Petition to Revoke Disclaimer. 10. On August 28, 1989, Linda M. Roth filed an Answer in opposition to the Petitioner's Petition to Revoke Disclaimer. 11. On August 28, 1989, Judge Sheely presided over proceedings in Courtroom Number One regarding the Petition to Revoke Disclaimer at which time counsel for the Estate stated on the record: "The Estate takes the position as executors they have no interest really in whether Bob revokes his disclaimer or not." 12. On November 17, 1989, Judge Sheely granted Petitioner's Petition to Revoke Disclaimer. 13. On January 16, 1990, Petitioner filed a Praecipe with the Register of Wills office which states: "A Mr. William Martson filed a disclaimer without my authorization.. hereby revoke that disclaimer filed Jan. 12 1987. Book 115 Page 20-21." z 14.On November 30, 1989, the Guardian ad litem filed exceptions to the Order of November 17, 1989; on December 12, 1989, the Guardian ad litem filed an appeal. to the Superior Court. 15.On January 31, 1990, Judge Sheely issued an Opinion indicating that the trial court was without jurisdiction to rule on the guardian ad litem's exceptions pending resolution of the Superior Court appeal. 16. On January 7, 1991, the Superior Court remanded the Guardian ad litem's appeal for determination of the exceptions pending in the trial court. 17. On March 21, 1991, Judge Sheely entered an Opinion and Decree Nisi directing that Petitioner be permitted to revoke the disclaimer. 18. On April 2, 1991, the Guardian ad litem filed exceptions to the Orphans'' Court's adjudication of March 21, 1991. 19. On July 21, 1993, Judge Sheely issued an Order which denied the exceptions filed by the Guardian ad litem dated Apri12, 1991. 20. On August 4, 1993, the Guardian ad litem appealed the Order entered on July 21, 1993 to the Superior Court. 21. Although the Executrices had previously filed an Answer with New Matter in opposition to the Petitioner's Petition to Revoke Disclaimer and appeared via counsel in the proceedings before Judge Sheely, the Executrices voluntarily chose not to file any exceptions nor to file any appeal to the Superior Court regarding the Orphans' Court's adjudications unlike the Guardian ad litem. 22. In a Memorandum Opinion filed July 18, 1994, the Superior Court dismissed the appeal filed by the Guardian ad litem concluding, inter alia, "the attempt to represent the minor children with respect to the revocation of Robert Mumma's disclaimer is beyond the scope of Mr. Frey's limited appointment" and "Mr. Frey lacks standing to appeal the decision to revoke Robert Mumma's disclaimer." 23. The proceedings terminated at this juncture because only the Guardian ad litem had filed an appeal, and not the Executrices. 24. No party sought allocator with the Pennsylvania Supreme Court following the Superior Court's Memorandum Opinion of July 18, 1994. 25.On January 12, 1999, Petitioner filed a petition for accounting for the Estate; by rule returnable within 45 days, then President Judge Hoffer ordered the Executrices to show cause why an accounting should not be ordered. 26. On February 26, 1999, the Executrices filed an Answer with New Matter alleging, tinter alia, that a consequence of the Superior Court's memorandum opinion of July 18, 1994 was that the validity of Petitioner's revocation of the disclaimer was never fmally adjudicated. 27. The Brief of Appellants dated June 28, 2000 filed with the Superior Court by counsel for the Executrices stated that the Answer with New Matter as filed on February 26, 1999 was intended to establish a record as to the issue of Mr. Mumma, II's disclaimer of his interests in the Will. 28. As part of the New Matter filed on February 26, 1999, the Executrices requested the Court to appoint a guardian ad litem to represent the Petitioner's minor children "with respect to a determination of the validity of Robert II's revocation of his disclaimer." 29. On March 5, 1999, Petitioner filed an Answer alleging, inter alia, that he had given specific instructions to the counsel for the Estate that the disclaimer not be filed at the court house and that the disclaimer was nevertheless revoked thereafter with the permission of the Court (pursuant to Judge Sheely's orders of November 17, 1989 and March 21, 1991). 30. On February 23, 2000, Judge Hoffer issued an Opinion and Order granting Petitioner's petition for an accounting of the Estate and Trusts and denying the Executrices' motion for appointment of a guardian ad litem for Petitioner's minor children. 4 31. Judge Hoffer's opinion of February 23, 2000 states, inter alias "Respondents contend that since the issue of petitioner's disclaimer has not been fully appealed, petitioner has no interest in the Estate. We disagree." "[t]his Court revoked petitioner's disclaimer in 1989" and "respondents may not collaterally attack the prior judgment revoking petitioner's disclaimer." 32. On March 3, 2000, the Executrices filed exceptions to the Court's Order of February 23, 2000. 33. Despite the Answer with New Matter filed on August 24, 1989 in opposition to the Petitioner's Petition to Revoke Disclaimer, the Executrixes' exceptions filed on March 3, 2000 stated that the Petitioner's request to revoke his disclaimer was contested "only" by the Guardian ad litem. (Exception #5). 34. The Executrixes' exceptions filed on March 3, 2000 stated that the issue of the validity of the revocation has never been litigated on behalf of Petitioner.'s minor children by anyone having standing to do so. (Exception #7). 35. The Executrixes' exceptions filed on March 3, 2000 stated that the issue as to whether Petitioner effectively revoked his disclaimer bears directly and dispositively upon the identity of those persons to whom the Executrices must account and who are the beneficiaries under the Will. (Exception #8). 36. The Executrixes' exceptions filed on March 3, 2000 stated that the Executrices believe that they have a fiduciary duty to make sure that the issue of the validity of the revocation, due to its centrality to the proper administration of the Estate and Trusts, has been fully litigated by persons having standing to do so. (Exception #9). 37. The Executrixes' exceptions filed on March 3, 2000 stated that there is no alternative means by which the minor children's arguments can be heard and their rights protected or by which the proper beneficiaries might be identified. (Exception #10). 38. The Executrixes' exceptions filed on March 3, 2000 stated that the Executrices do not except to the portion of the February 23, 2000 opinion and order directing them to file accountings, except to the extent that they are ordered to account to Petitioner prior to a final determination of his entitlement to receive an accounting and his status as a beneficiary under the Will. (Exception # 11). 39.On March 24, 2000, the Executrices filed a Notice of Appeal to the Superior Court regarding the trial court's order of February 23, 2000. 40.On Mazch 27, 2000, Judge Hoffer issued an Order directing the Executrices as the appellant to file a concise statement of matters complained of on appeal. 41. On Apri16, 2000, the Executrices filed a Statement of Matters Complained of On Appeal; therein the Executrices averred that the Court erred in denying the petition for the appointment of a guardian ad litem for the minor children of Petitioner to litigate the question of whether the disclaimer had been validly revoked., and otherwise reiterated the issues set forth in Exceptions #7, #8, and #9 as bled on March 3, 2000. 42. On April 14, 2000, Petitioner filed an Answer with New Matter to the exceptions filed by the Executrices on March 3, 2000. 43. On May 8, 2000, the Executrices filed a Reply to New Matter. 44. Pennsylvania Orphans' Court Rule 7.1(f) is entitled "Time Limits for Decision on Exceptions." 45. For purposes of Pennsylvania Orphans' Court Rule 7.1(f), the one hundred and twenty first (121 S`) day following the filing of the initial exceptions on March 3, 2000 would be July 3, 2000. 46. For purposes of Pennsylvania Orphans' Court Rule 7.1(f), the one hundred and twenty day (120) day period within which the Orphans' Court had to decide exceptions following the filing of the initial exceptions on Mazch 3, 2000 would be July 2, 2000. 47. Because the Orphans' Court did not decide the exceptions filed by the Executrices on March 3, 2000 within 120 days, they are deemed denied by operation of law pursuant to Pa.O.C.R. 7.1(f). 48. Pursuant to Pa.O.C.R. 7.1(fj, the Clerk of the Orphans' Court must be directed to enter the deemed denial on the docket as of that 121St date, i.e., July 3, 2.000. 49. Pursuant to Pa.O.C.R. 7.1(f), the time for perfecting any appeal to the Superior Court of the deemed denial of the Executrices' exceptions shall begin to run as of the 121St day. 50. Pursuant to Pa.R.A.P. 903, the thirty (30) day period within which the Executrices could have filed an appeal to the Superior Court from the deemed denial of the exceptions filed on March 3, 2000 expired as of August 2, 2000. 51. The Executrices' exceptions as filed on March 3, 2000 are deemed denied by operation of law as of July 3, 2000. 52. The Executrices did not file any appeal to the Superior Court within 30 days from the date of the deemed denial. 53. As the exceptions are deemed denied by operation of law and as no appeal was taken within 30 days of the date of the deemed denial, the Executrices are precluded from further pursuing the azguments, issues, and/or positions as set forth in the exceptions filed Mazch 3, 2000. 54. In an Order dated January 3, 2001, the Superior Court quashed the Executrices' appeal of Judge Hoffer's Order of February 23, 2000. 55. In its Memorandum Opinion filed on January 3, 2001, the Superior Court stated that the Executrices' appeal "is interlocutory, taken without right, and must be quashed." 56. In footnote 1 of the Superior Court's Memorandum Opizuon of January 3, 2001, the Court stated: "On Mazch 3, 2000, Appellants filed exceptions to the February 23`d order and opinion. At the time of the filing of the appeal, the trial court had not ruled on the exceptions." 7 57. The time of the filing of the appeal by the Executrices (March 24, 2000) coincided with the 120 day time frame envisioned by Pa.O.C.R. 7.1(f). 58. During said 120 day time frame, the Executrices filed their appeal to the Superior Court on Mazch 24, 2000, their Statement of Matters Complained of On Appeal on April 6, 2000, and a Reply to New Matter on May 8, 2000. 59.On July 28, 2003, the Executrices filed a document styled "Amended and Restated Exceptions of Bazbaza McK. Mumma and Lisa M. Morgan to Adjudication of February 23, 2000." 60. Paragraph 10 of the Amended and Restated Exceptions filed by the Executrices on July 28, 2003 states: "This Court has not ruled on the exceptions" (referring to those exceptions filed on Mazch 3, 2000). 61. Footnote 1 of the Amended and Restated Exceptions filed by the Executrices on July 28, 2003 specifically refers to Pennsylvania Orphans' Court Rule 7.1. 62. On August 18, 2003, Petitioner filed a Notice of Untimeliness of Exceptions; therein, then counsel for the Petitioner set forth that the Amended and Restated Exceptions filed by the Executrices were untimely under Rule 7.1 of the Orphans' Court Rules which requires that exceptions must be filed not later than twenty (20) days after entry of an order, decree, or adjudication. 63. Petitioner has not obtained the concurrence of counsel to the Executrices, or from counsel to other interested parties, inasmuch as any such consent or concurrence is not necessary because the entry of the date of the deemed denial on the docket arises by operation of law under the express language of Pa.O.C.R. 7.1(f), such. that either the concurrence or opposition of said counsel is immaterial in light of said Rule's mandatory provision that the Clerk shall so enter the date of the deemed denial on the docket whenever the Orphans' Court fails to decide the exceptions within 120 days of the filing of the initial exceptions. 8 WHEREFORE, Petitioner's prayer for relief is that the Orphans' Court direct the Clerk to enter the date of July 3, 2000 on the docket as the date of the deemed denial by operation of law of the exceptions filed by the Executrices on March 3, 2000 as expressly dictated by Pennsylvania Orphans' Court Rule 7.1(f). Respectfully submitted, Robert M. Mumma, II pro se P.O. Box 58 Bowmansdale, PA 17008 (717) 612-9720 9 CERTIFICATE OF SERVICE On this 2nd day of April 2008, I, Daryl E. Hewitt, Assistant to Robert M. Mumma, II, hereby certify that I served copies of the foregoing Petitions and Proposed Order by U.S. Mail, first class, postage prepaid, addressed to: George B. Faller, Jr., Esquire No V. Otto, III, Esquire 10 East High Street Carlisle, PA 17013 Brady Green, Esquire 1701 Market Street Philadelphia, PA 19103-2921 Ralph Jacobs, Esquire 215 South Broad Street Philadelphia, PA 19107 ~. -~~ Daryl E. Hewitt Assistant to Robert M. Mumma, II