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HomeMy WebLinkAbout06-24-08F:\FILES\CGentsVviumma 5844.1 (estate) 8747 (Kim)\5844.1.Mumma Estate\5844. LrespdeemeddeoiaLs George B. Faller, Jr., Esquire I.D. No. 49813 No V. Otto, III, Esquire I.D. No. 27763 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for the Estate IN RE ESTATE OF IN THE COURT OF COMMON PLEAS OF ROBERT M. MUMMA :CUMBERLAND COUNTY, PENNSYLVANIA Deceased N0.21-86-398 ORPHAN'S COURT DIVISION RESPONSE TO PETITION TO ORPHANS' COURT DIVISION FOR THE ENTRY OF THE DATE OF THE DEEMED DENIAL OF EXCEPTIONS UNDER PENNSYLVANIA ORPHANS' COURT RULE 7 1(fl AND NEW MATTER TO: ROBERT M. MUMMA, II YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. AND NOW, comes Lisa Mumma Morgan and Barbara McK. Mumma, as Executrices of the Estate of Robert M. Mumma and Trustees under his will, and respond as follows to the Petition of Robert M. Mumma II: , ~ fT o 1. Admitted. ~~ ~' {-- =' ~ c-> ~=- 2. Admitted. ~ ~ .~ _~ f - ~~-.~ _.~ c'~... 3. Admitted '` J ;_~~ -~ .~ - ~ :~ t ' . ~ -~ ~ . ,~'it ,,o .~-- 4. Admitted. By way of further explanation, Attorney Klein gave the direction as Robert M. Mumma, II's attorney and agent. 5. Admitted. 6. Mrs. Mumma and Mrs. Morgan admit that portions of the Order are quoted accurately. 7. Admitted. 8. Admitted. 9. Admitted in part; denied in part. Mrs. Mumma and Mrs. Morgan admit that they filed an Answer and New Matter in response to the Petition to Revoke Disclaimer. They deny that they took any position in support of or in opposition to the Petition. Moreover, their Answer and New Matter is in writing and speaks for itself, and all characterizations are denied. 10. Admitted in part; denied in part. Mrs. Mumma and Mrs. Morgan admit that Linda Roth filed an Answer in response to the Petition to Revoke Disclaimer. That document is in writing and speaks for itself, and all characterizations of it are denied. 11. Admitted. 12. Mrs. Mumma and Mrs. Morgan admit that the Order stated that the "motion to revoke disclaimer is granted." 13. Admitted, although "hereby" was misspelled "hearby" in the praecipe filed by Robert M. Mumma, II. 14. Admitted. 1 S. Admitted. 16. Admitted. 17. Mrs. Mumma and Mrs. Morgan admit that the Decree Nisi directed that Robert M. Mumma, II "may revoke the disclaimer." 18. Admitted. 19. Admitted. Z0. Admitted. 21. Admitted in part, denied in part. Mrs. Mumma and Mrs. Morgan admit that they filed an Answer and New Matter to the Petition to Revoke the Disclaimer, that counsel for them appeared at the hearing held by the Court on the matter, and that they did not appeal Judge Sheely's order of July 21, 1993. All other allegations and characterizations are denied. See also response to paragraph 9. 22. Admitted. 23. Denied. The allegations of this paragraph are vague and ambiguous and are not susceptible of a response. By way of further response, nothing about the Superior Court's July 18, 1994, ruling or any other ruling by that or any other court has finally adjudicated the validity of Mr. Mumma, II's attempt to revoke his disclaimer that would be binding upon Mr. Mumma, II's children. 24. Admitted. 25. Admitted in part; denied in part. Mrs. Mumma and Mrs. Morgan admit that Mr. Mumma, II filed a petition for accounting, and that Judge Hoffer entered a rule to show cause. However, it appears that Mr. Mumma, II filed the petition for accounting on January 6, 1999, and that the petition was docketed on January 12, 1999. 26. Admitted. 27. Admitted in part, denied in part. Mrs. Mumma and Mrs. Morgan admit that this paragraph repeats in part the content of the brief. That brief is in writing and speaks for itself. All further characterizations, allegations or inferences are denied. 28. Admitted. 29. Admitted in part, denied in part. Mrs. Mumma and Mrs. Morgan admit that the petition included these statements. All inferences and allegations made therein are denied. By way of further response, Mr. Mumma, II's assertion that that "he had given specific instructions to the counsel for the Estate that the disclaimer not be filed" is flatly inconsistent with prior findings by the Court on that issue in the above-referenced proceeding. In an Opinion and Order of February 13, 1989, following a hearing on January 25, 1989, at which it took testimony and evidence on the issue, the Court made, inter alia, the following findings: In early January 1987, Mr. Mumma and Mr. Klein had a discussion concerning Mr. Mumma disclaiming his interest under his father's will in favor of his children. Mr. Mumma authorized Mr. Klein to draft a disclaimer of his interest for his review. Mr. Klein informed Mr. Mumma by letter, dated January 6, 1987, that for the disclaimer to be effective, it must be filed with the Clerk of the Orphans' Court Division of Cumberland County. Mr. Mumma executed the qualified disclaimer of his interest on January 6, 1987, and said disclaimer was filed with the Court of Common Pleas of Cumberland County, Orphans' Court Division on January 12, 1987, in Book 115 at Page 20, with the knowledge and authorization of Mr. Mumma. Opinion and Order at 4, Findings of Fact 15-18 (citations omitted). 30. Admitted. 31. Admitted in part; denied in part. Mrs. Mumma and Mrs. Morgan admit that the quote from the Opinion is accurate. They deny any inference based on the language of the Opinion as a conclusion of law to which no response is required. 32. Admitted. 33. Admitted in part, denied in part. Mrs. Mumma and Mrs. Morgan admit that this paragraph repeats in part exception 5 of the Executrices' Exceptions filed on March 3, 2000. That document is in writing and speaks for itself, and all other allegations or characterizations are denied. 34. Admitted in part, denied in part. Mrs. Mumma and Mrs. Morgan admit that this paragraph repeats in part exception 7 of the Executrices' Exceptions filed on March 3, 2000. That document is in writing and speaks for itself, and all other allegations or characterizations are denied. 35. Admitted in part, denied in part. Mrs. Mumma and Mrs. Morgan admit that this paragraph repeats in part exception 8 of the Executrices' Exceptions filed on March 3, 2000. That document is in writing and speaks for itself, and all other allegations or characterizations are denied. 36. Admitted in part, denied in part. Mrs. Mumma and Mrs. Morgan admit that this paragraph repeats in part exception 9 of the Executrices' Exceptions filed on March 3, 2000. That document is in writing and speaks for itself, and all other allegations or characterizations are denied. 37. Admitted in part, denied in part. Mrs. Mumma and Mrs. Morgan admit that this paragraph repeats in part exception 10 of the Executrices' Exceptions filed on March 3, 2000. That document is in writing and speaks for itself, and all other allegations or characterizations are denied. 38. Admitted in part, denied in part. Mrs. Mumma and Mrs. Morgan admit that this paragraph repeats in part exception 11 of the Executrices' Exceptions filed on March 3, 2000. That document is in writing and speaks for itself, and all other allegations or characterizations are denied. 39. Admitted. 40. Admitted. 41. Admitted in part, denied in part. Mrs. Mumma and Mrs. Morgan admit that this paragraph repeats in part the content of their Statement of Matters Complained of On Appeal. That document is in writing and speaks for itself, and all other allegations or characterizations are denied. 42. Admitted. 43. Admitted. 44. Admitted in part and denied in part. It is admitted that Petitioner's averment contains an accurate quotation of the caption of Orphans' Court Rule 7.1(f). Any inference or allegation related to the caption of Orphans' Court Rule 7.1(f) is denied as a conclusion of law to which no response is required. 45. Admitted in part and denied in part. It is admitted that Petitioner's averment contains an accurate calculation of the 121 S` day following March 3, 2000. Any inference related thereto is denied as a conclusion of law to which no response is required. 46. Admitted in part and denied in part. It is admitted that Petitioner's averment contains an accurate calculation of the 120th day following March 3, 2000. Any inference or allegation related thereto is denied as a conclusion of law to which no response is required. 47. Denied. Mrs. Mumma and Mrs. Morgan deny that the exceptions are deemed denied absent the entry of a deemed denial on the docket. The docket for this matter contains no such entry. Moreover, Mrs. Mumma and Mrs. Morgan deny that any failure of the Court to rule upon the exceptions has any impact upon the ultimate question of whether Mr. Mumma, II's revocation of his disclaimer was valid or effective. 48. Denied. Pursuant to Rule 7.1(f) of the Orphans' Court Rules, the Clerk of the Orphans' Court is directed by operation of law to enter a deemed denial on the docket on the 121st day if the Orphans' Court fails to rule on the exceptions. Mrs. Mumma and Mrs. Morgan deny that the exceptions are deemed denied absent the entry of a deemed denial on the docket. The docket for this matter contains no such entry. Even if the deemed denials are entered as of July 3, 2000, any appeal period would commence on the date that the docket is amended to reflect the entry of the deemed denials. Moreover, Mrs. Mumma and Mrs. Morgan deny that any failure of the Court to rule upon the exceptions has any impact upon the ultimate question of whether Mr. Mumma, II's revocation of his disclaimer was valid or effective. 49. Denied. Mrs. Mumma and Mrs. Morgan believe that the time period for appeal to the Superior Court does not begin to run until a deemed denial is entered on the docket. The docket for this matter contains no such entry. Consequently, the time for appeal to the Superior Court has not yet started. 50. Denied. The time period for appeal to the Superior Court would not begin to run until the date that a deemed denial might entered on the docket. The docket for this matter reflects no such entry. Consequently, the time for any appeal to the Superior Court has not yet started. 51. Denied. Mrs. Mumma and Mrs. Morgan deny that the exceptions are deemed denied absent the entry of a deemed denial on the docket. The docket for this matter contains no such entry. Moreover, Mrs. Mumma and Mrs. Morgan deny that any failure of the Court to rule upon the exceptions has any impact upon the ultimate question of whether Mr. Mumma, II's revocation of his disclaimer was valid or effective. 52. Denied. No deemed denial has been entered on the docket for this matter. Consequently, there is no deemed denial from which the Executrices could have appealed to the Superior Court. 53. Denied. No deemed denial has been entered on the docket in this matter. Therefore, there was no deemed denial from which the Executrices could have appealed to the Superior Court. 54. Admitted in part, denied in part. Mrs. Mumma and Mrs. Morgan admit that the Superior Court quashed the appeal as interlocutory. Any inference or allegation based on this fact is denied as a conclusion of law to which no response is required. 55. Admitted in part, denied in part. Mrs. Mumma and Mrs. Morgan admit that the Memorandum Opinion states this as its findings. Any inference or allegation based on this fact is denied as a conclusion of law to which no response is required. 56. Admitted in part, denied in part. Mrs. Mumma and Mrs. Morgan admit that Footnote 1 is quoted accurately. Any inference or allegation based on this fact is denied as a conclusion of law to which no response is required. 57. Admitted in part and denied in part. Mrs. Mumma and Mrs. Morgan admit that the filing of their appeal on March 24, 2000, occurred within 120 days from the of March 3, 2000. Any inference or allegation based on this fact is denied as a conclusion of law to which no response is required. 58. Admitted in part and denied in part. Mrs. Mumma and Mrs. Morgan admit that the filings listed in this averment occurred within 120 days of March 3, 2000. Any inference or allegation based on this fact is denied as a conclusion of law to which no response is required. 59. Admitted. 60. Admitted. 61. Admitted. Footnote 1 refers to former Pennsylvania Orphans Court Rule 7.1 and a 2000 Amendment, Pa. O.C.R. 7.1(a). 62. Admitted in part, denied in part. Mrs. Mumma and Mrs. Morgan admit that that on or about August 18, 2003, a Notice of Untimeliness of Exceptions was filed. They also admit that this paragraph repeats portions of that document. The document is in writing and speaks for itself, and all further characterizations, inferences or allegations are denied. 63. Denied. On the contrary, Pa.O.C.R. 7.1(f) directs the Clerk of the Orphans' Court to enter deemed denials on the 121st date following the filing of exceptions. The docket in this matter does not reflect the entry of any deemed denials. Because there has been no deemed denial, Petitioner should have sought the concurrence of counsel to the Executrices. WHEREFORE, Respondents respectfully request that this Honorable Court deny the relief sought by Petitioner and instead rule on the exceptions filed by Respondents on March 3, 2000. NEW MATTER 64. Paragraphs 1 through 63 are incorporated herein by reference. 65. Petitioner's claims are barred by the Doctrine of Laches. 66. Petitioner's claims are barred by the Doctrine of Equitable Estoppel. WHEREFORE, Respondents respectfully request that this Honorable Court deny the relief sought by Petitioner and instead rule on the exceptions filed by Respondents on March 3, 2000. By Ge B. Faller, Jr., Esquir I.D. No. 49813 No V. Otto, III, Esquire I.D. No. 27763 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES Ten East High Street Carlisle, PA 17013 (717) 243-3341 Date: June 23, 2008 Attorneys for Barbara McK. Mumma & Lisa M. Morgan F:\F'[LES\Clien[sUNmmna 5844.1 (estate) 8747 (Kim)\5844. LMutama Estate~5844-1.398.certservice CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent of Martson Law Offices, hereby certify that a copy of the foregoing Response to Petition to Orphans' Court Division for the Entry Of the Date of the Deemed Denial of Exceptions Under Pennsylvania Orphans' Court Rule 7.1(f) and New Matter was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Mr. Robert M. Mumma, II BOX 58 Bowmansdale, PA 17008 Mr. Robert M. Mumma, II 6880 S.E. Harbor Circle Stuart, FL 34996-1968 Mr. Robert M. Mumma, II 840 Market Street Suite 164 Lemoyne, PA 17043 Ralph A. Jacobs, Esquire JACOBS & SINGER, LLC 1515 Market Street Suite 705 Philadelphia, PA 19102 (Attorney for Barbara Mann Mumma) Brady L. Green, Esquire MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, PA 19103-2921 (Attorney for Estate and Executrixes) Taylor P. Andrews, Esquire ANDREWS & JOHNSON 78 West Pomfret Street Carlisle, PA 17013 (Court-Appointed Auditor) MARTSON LAW OFFICES Y ' cia D. Eckenroad 10 East High Street Carlisle, PA 17013 (717) 243-3341 Dated: June 23, 2008