HomeMy WebLinkAbout07-11-08IN RE: ESTATE OF
ROBERT M. MUMMA,
Deceased
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
ORPHAN'S COURT DIVISION
N0.21-86-398
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AND NOW comes Robert M. Mumma, II, pra se, and files the instant Answer and New
Matter to the Motion of Barbara McK. Mumma and Lisa M. Morgam to Compel Disclosure, and
in support thereof avers as follows:
1. Admitted in part; denied in part. It is admitted that a qualified disclaimer was filed with
the Orphans' Court Division on January 12, 1987; it is denied that the undersigned filed same,
caused same to be filed with the court, or otherwise authorized the filing of the disclaimer with
the court. By way of further denial, the undersigned returned one executed copy of the
disclaimer to Arthur L. Klein, Esquire with express handwritten instructions that said single
executed copy was to be delivered to Lisa Morgan for her to hold as Executrix. (See, Exhibit "A"
which was produced via discovery from Estate counsel). The filing at the court on January 12,
1987 was done by William Martson, Esquire who was never authorized by the undersigned to do
so. On January 16, 1990, the undersigned filed a Praecipe with the Register of Wills office
which states: "A Mr. William Martson filed a disclaimer without my authorization. I hearby
revoke that disclaimer filed Jan. 12 1987. Book 115 Page 20-21."
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2. Admitted in part; denied in part. It is admitted that the undersigned filed a petition to
revoke the disclaimer which was granted by Judge Sheely on November 17, 1989 who
thereafter issued an Opinion and Decree Nisi on March 21, 1991 permitting the revocation of
the disclaimer. It is further admitted that Robert M. Frey had been appointed guardian ad litem
of the undersigned's minor children and that Judge Sheely overruled Mr. Frey's exceptions to
the final order of March 21, 1991 in an order dated July 21, 1993. It is denied as stated that
Judge Sheely's rulings were over the objection of Robert M. Frey solely inasmuch as an Answer
with New Matter in opposition to the petition to revoke the disclaimer was filed by the
Executrices on August 24, 1989, and an Answer in opposition to the petition to revoke the
disclaimer was filed by Linda M. Roth on August 28, 1989. Although the Executrices had filed
an Answer with New Matter in opposition to the petition to revoke disclaimer and appeared via
counsel in the proceedings before Judge Sheely conducted on August 28, 1989, the Executrices
failed to file any exceptions to Judge Sheely's rulings unlike Mr. Frey and the Executrices failed
to perfect any appeal to the Superior Court unlike Mr. Frey.
3. Admitted in part; denied in part. It is admitted that Paragraph #3 accurately quotes the
Superior Court's opinion. The undersigned denies any inference intended by quoting said
language of the Opinion as a conclusion of law to which no response is required. By way of
further Answer, on July 18, 1994, the Superior Court dismissed the appeal filed by the guardian
ad litem stating: "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."
4. Denied. The averments of Paragraph #4 constitute conclusions of law to which no
response is required. By way of further denial, this averment is vague, ambiguous, and
disjointed, and not susceptible of a response. By way of further denial, the singulaz effect of the
Superior Court's decision on July 18, 1994 was to dismiss an appeal upon determining that the
appellant had lacked standing in the proceedings below. The dismissed appeal had been filed
by the guazdian ad litem regarding a matter below which had involved a specific legal issue
(i.e., the revocation of disclaimer issue) which was determined upon appellate review to be
beyond the scope of the guardian ad litem's limited appointment: to wit, "Mr. Frey was
appointed in anticipation of a dispute over the sale of the decedent's businesses from the estate.
See Petition for Appointment of Guardian Ad Litem." Slip. op. p. 2. Noting that the minor
children only becazne involved as a result of becoming remaindermen due to the disclaimer, the
Superior Court further stated: "[i]t was essential that they have a representative in the event
Robert opposed the sale. Mr. Frey's role was circumscribed to ensure the children's interests
were best-served by either the sale or the failure to sell the businesses." Id. Footnote #1 of the
Superior Court's decision further clarified that the revocation of disclaimer issue was not related
to the issue of the sale of the businesses. By way of further denial, there is nothing remotely
suggested by the Superior Court's opinion of July 18, 1994 which directly, indirectly, or
otherwise renders the proceedings before Judge Sheely as a nullity inasmuch as the Executrices
filed an Answer with New Matter in opposition to the petition and participated via counsel
before Judge Sheely, yet voluntarily chose not to file exceptions or pursue an appeal.
Therefore, the proceedings before Judge Sheely cannot be deemed a nullity as far as same
respect the Executrices who filed responsive pleadings and who participated actively via
counsel in the proceedings. Furthermore, the Executrices are estopped as a matter of law from
attempting to relitigate the revocation issue inasmuch as same was either actually litigated or
could have been litigated during the first proceedings as it constituted a part of the same action.
5. Admitted in part; denied in part. It is admitted that the Auditor authored a letter dated
September 26, 2005 and that Paragraph #5 accurately quotes said two sentences. By way of
further answer, the next sentence in said Auditor's letter states: "I will be evaluating this
further." The final sentence of this pazagraph in said Auditor's letter states: "I am also
interested to know if there should be an agreement by all that it would be desirable to have a
final review of this issue before a final adjudication in this audit." It is further denied that there
was an "attempt" to revoke the disclaimer: it actually was revoked pursuant to the final orders
of two (2) President Judges of the court (President Judges Sheely and Hoffer) who permitted the
revocation and restored the undersigned as a beneficiary who was entitled to an accounting.
Similarly, it is denied that a "significant unresolved issue" exists given the law of the case and
the prior adjudications by the Orphans' Court. By way of further denial, a two sentence passage
from an informational letter sent nearly three (3) years ago by the Auditor during the earlier
formative phases of his appointment does not constitute a Finding of Fact, a Conclusion of Law,
or any similaz authoritative ruling issued as a result of any formal hearings with sworn
testimony subject to cross-examination or any other formal adjudicative proceedings allowable
under the PEF Code, and as such does not authorize the Orphans' Court at this juncture of the
Auditor proceedings to enter an order granting a `motion to compel disclosure' as styled by
Estate counsel. Paragraph #5 is further denied in that any inference intended by quoting said
two sentences of the Auditor's letter constitutes a conclusion of law to which no response is
required.
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6. Denied. The averments of Paragraph #6 constitute conclusions of law to which na
response is required. By way of further denial, Paragraph #6 sets forth a partial quotation of
Footnote #1 of the Superior Court's opinion of March 7, 2006. Moreover, said Footnote #1
contains material misstatements of previously adjudicated and previously admitted facts. By
way of further denial, other passages exist in Superior Court opinions which confirm that the
disclaimer was validly revoked. See, Memorandum Opinion of July 18, 1994 ("For a number
of reasons, Robert laterpetitioned to revoke his disclaimer, and the courtgranted this petition.
Thereby Robert was restored as a remainderman under the trusts." Slip. op. p. 1, emphasis
added); Memorandum Opinion of July 15, 1994 ("Robert II previously disclaimed his interest in
the estate, and his minor children were named by the will as beneficiaries to replace him.
Robert M. Frey was later appointed to represent the children in this dispute over the sale of the
businesses. Subsequently, Robert II validly revoked his disclaimer; therefore, the children,
through the guardian ad litem no longer have an interest in this dispute." FN 1, Slip. op. p. 1,
emphasis added); Memorandum Opinion of March 7, 2006 ("In 1989, former President Judge
Harold E. Sheely of this court granted petitioner's motion to revoke has disclaimer.... Robert
M. Mumma, II, eventually asked for a complete accounting of the Estate, including an
accounting of the Trusts in which he claimed an interest. Decedent's widow and Mrs. Morgan
claimed in response that they could not provide an accounting to Robert M. Mumma, II because
he did not have standing, and the issue of the revocation ofhis disclaimer had not been fully
litigated.... This position of the executrices/trustees was r jetted by the court, and an
accounting by the executrices/trustees was ordered on February 23, 2000." Slip. op. p. 2,
quoting Judge Oler's trial court opinion of 3uly 15, 2005, emphasis added). Paragraph #6 is
further denied in that any inference intended by quoting part of Footnote #1 of the Superior
Court's opinion of March 7, 2006 constitutes a conclusion of law to which no response is
required.
7. Admitted in part; denied in part. It is admitted only that Paragraph #7 contains a
restructured quotation from the Auditor's letter attached as Exhibit "A". It is denied that this
issue remains significant given that same as been previously adjudicated and constitutes the law
of the case; the foregoing paragraphs of the instant Answer are incorporated herein. It is
further denied inasmuch as said restructured quotation references only part of a complete
sentence and does so out of context. Paragraph #7 is further denied in that any inference
intended by quoting part of this sentence in the Auditor's letter constitutes a conclusion of law
to which no response is required.
8. Denied. The foregoing paragraphs of the instant Answer are incorporated herein. During
the course of pending Auditor's proceedings, alitigant /objector should not be compelled to
submit a document which could constitute an admission against interest or otherwise be
compelled to take action which could ultimately injure his interests and produce adverse and
detrimental consequences in the context of pending or future litigation; accordingly, the
undersigned denies that he is under any current legal obligation to provide the information in
question and/or provide any other explanation as averred in Paragraph #8.
WHEREFORE, the undersigned respectfully requests that the Motion to Compel
Disclosure be DENIED.
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NEW MATTER
9. Paragraphs #1 through #8 are incorporated herein by reference thereto.
10. The Executrices' claims are barred by estoppel.
11. The Executrices' claims are barred by laches.
12. The Executrices' claims are barred by res judicata.
WHEREFORE, the undersigned respectfully requests that the Motion to Compel
Disclosure be DENIED.
Respectfully submitted,
~/ ~t ~7~/~'~~'U/ /~1,U1,M
Robert M. Mumma, II ~ ~
P.O. Box 58
Bowmansdale, PA 17008
(717) 612-9720
PROSE
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WAS MIN6TON
NEW YORK
LOS ANGELES
ARTHUR L. KLEIN
DIAL C~11CCT (z 16) 663-5444
FEDERAL EXPRESS
MORGAN~ LEWIS & BOCKIUS
COUNSELORS AT LAW
2000 ONE LQGAN SQUARE
PMILAOELPHIA.PENNSYLVANIA 19103
Tc~EVwow[+(21S) 963-5000
Mr. Robert M. Mumma,
26 Stanton Lane
Snowmass Village, Cc
Re:
Dear Bob:
Qualified
Estate of
CA~1.E Aooucs s: MORLEBOCK
i
0 81615 L~'"
Disclaimer f IRtE
Robert M. Mumr~ 1
Enclosed please f
document which you ma.y use
your interest in your dad's
c op~e`~s o f a
"qualified
L`isclaimer
disclaimer"
MIAMI
HARRISBURG
LONDON
As we have discussed, if you make a disclaimer of your
interest in your dad's estate, then upon your mother's death the
share of your dad's estate which would otherwise pass t4 you will
pass to your issue. By making a "qualified disclaimer" under IRC
g2S~18, you will not be making a taxable gift.
Furthermore, since your dad died before enactment of
the Tax Reform Act of 1986, the new generation skipping tax
imposed by the Act will not apply when distribution is made to
your issue. Accordingly, a qualified disclaimer of your interest
in your dad's estate will result in the share of his estate which
would have passed to you passing to your issue without any
further wealth transfer taxation (other than the estate tax on
your mother's death). ~ ~ -~ ~~~(~j
27 Z~ ~ ~-.
Section 2518 of the Internal Revenue Code provides that
the term "qualified disclaimer" means with respect to an interest
under a Wfll an "irrevocable and unqualified refusal" to accept
the interest but only if -- (i) such refusal is in writing, (ii)
EXHIBIT "A" ~
~Y~
5
Mr. Robert M. M mma
January 5, 198
Page
the writing is received by the executors within nine months of
the da e o ea , iii a erson ma zn the isc aimer has not
accepted the interest or any o its enefits an iv as~a result
o suc re usa t e interest asses without an direc ion on the
par of t e person ma_ing the disclaimer to a bene iciary or
"6ene~`i-ciaries other than him. In addi-- t--io as a matter of
Pennsylvan~.a aw, a isclaimer to be effective must be filed
with the Clerk of the Orphans' Court division of the county where
the decedent was domiciled.
You and I have discussed that any of your children born
after your mother's death would not participate in the
distribution of your disclaimed share of your father's estate.
And there may even be an argument that a child of yours born
after your father's death before your mother's should not
participate. You plan to deal with the possible inequality in
benefits among your children by providing an equalization gift in
a trust you will create in the near future over a substantial
portion of your Gemini stock.
To follow through with a timely "qualified disclaimer"
of your interest in your father's estate, sign four of the copies
of the Disclaimer (keep the fifth), and return them to me,
Federal Express, in the prepaid envelope provided. There is a
Federal Express office at 209 Ventnor Avenue in Aspen, where a
drop off can be made until 7:00 p.m. I will have copies
delivered to your mother and Lisa, as Executors, and.a copy filed
with the Court in Carlisle.
If you have any question, please calla My home
telephone number is (215-667-2844).
Sincerely yours,
/~i ~~~.~
Arthur L. Klein
' /rkb
Enclosures
RG Ew1S & BOCK!
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CERTIFICATE OF SERVICE
I, Robert M. Mumma, II hereby certify that a copy of the foregoing Answer to Motion to
Compel Disclosure was served this date by U.S. Mail, first class, postage prepaid, addressed to:
George B. Faller, Jr., Esquire
No V. Otto, III, Esquire
Manson Law Offices
10 East High Street
Carlisle, PA 17013
Brady Green, Esquire
Morgan, Lewis & Bockius, LLP
1701 Market Street
Philadelphia, PA 19103-2921
Ralph Jacobs, Esquire
1515 Market Street -Suite 705
Philadelphia, PA 19102
Linda Mumma Roth
PO Box 480
Mechanicsburg, PA 17055
Taylor Andrews, Esquire
Court-Appointed Auditor
78 West Pomfret Street
Carlisle, PA 17013
DATE: ~ ~ ~ ~ g
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BY: ;~i' ~ ~~,
Robert M. Mumma, II
Box 58
Bowmansdale, PA 17008
717-612-9720
PROSE