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HomeMy WebLinkAbout12-09-08., a IN RE: ESTATE OF : IN THE COURT OF COMMON PLEAScgF ROBERT M. MUMMA :CUMBERLAND COUNTY, PENNSYL~A~'~.fIA ~~~ ORPHANS' COURT DIVISION ' ~~ ~~ . ~ ~~ - ~r? ~ N0.21-86-398 ORPHANS' COURT ;~~- -, ., .. c ~ _~ IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 ~-~ i ' r h) Oler, J., December 8, 2008. "~ In this decedent's estate case dating back to 1986, a pro se litigant, who formerly disclaimed his interest in the estate,l has filed another in a series of interlocutory appeals2 to the Pennsylvania Superior Court,3 this one being from an order4 denying his third motion for recusal of the undersigned judge.5 The appeal has been taken without securing an amendment to the order pursuant to Section 702(b) of the Judicial Code,6 and with the full awareness on the part of the ' See Disclaimer of Robert M. Mumma, II, filed January 12, 1987. Whether Appellant's purported revocation of this disclaimer remains legally challengeable by other parties is one of the many issues pending before acourt-appointed auditor in the case. See In re: Estate of Robert M. Mumma, No. 856 MDA 2005 (Pennsylvania Superior Court) (slip op. March 7, 2006, at 9 n.l) (non-precedential memorandum decision). Z As a general rule, the final, appealable order in a decedent's estate is the confirmation of the personal representative's final account. See Estate of Borkowski, 2002 PA Super 57, 794 A.2d 388 (quashing appeal from order directing co-executors to amend their accounting); Estate of Meininger, 532 A.2d 475, 367 A.2d 105 (1987) (dismissing appeal from order that dismissed objections to the executor's account but did not confirm the account). s See, e.g., Notice of Appeal, filed September 15, 2005 (appeal quashed by Superior Court by order dated October 28, 2005, at No. 1546 MDA 2005); Notice of Appeal, filed May 19, 2005 (appeal quashed by Superior Court by order dated January 4, 2007 at No. 1756 MDA 2006). a Order of Court, September 19, 2008. A motion to reconsider this order filed by Appellant herein was denied. Order of Court, October 3, 2008. 5 Notice of Appeal, filed October 17, 2008. 6 Act of July 9, 1976, P.L. 586, §2, as amended, 42 Pa. C.S. §702(b) (interlocutory orders appealable by permission pursuant to certification by lower court that order involves controlling question of law as to which substantial ground for difference of opinion exists and immediate appeal might materially advance ultimate termination of matter). Appellant's application to amend the order in accordance with this section of the Judicial Code was filed almost simultaneously with the filing of his notice of appeal from the order. Compare In re: Application of Robert M. Mumma, II To Amend Order of September 19, 2008 To Certify for Purposes of Taking an Interlocutory Appeal under 42 Pa. C.S.A. §702(b) (filed October 17, 2008, at 3:10 p.m.) with Notice of Appeal (filed October 17, 2008, at 3:32 p.m.). The application for ~~ ~' ~:~ -; ~, c ~ -a _ ,_, I _ . t._~ -cY ~Y t I litigious Appellant, based upon prior appeals from interlocutory orders,g that such orders are subject to quashal.9 In this estate in which a multiplicity of petitions, motions and issues, including appellant's most recent objections to actions of executrices/trustees filed this year,10 have been assigned to an auditor, the docket now extends to more than 30 pages. Appellant's "concise" statement of matters complained of on appeal extends to eight pages, ~ ~ and reads as follows: AND NOW, pursuant to Pa.R.A.P. 1925(b) and the Order of this Court dated October 27, 2008, comes Robert M. Mumma, II, pro se, who hereby presents this Concise Statement of matters Complained of On Appeal: For purposes of Pa.R.A.P. 1925(b)(4)(vi), the undersigned hereby prefaces this rule 1925(b) Statement by noting that those errors complained of as described in general terms herein have been so identified in general terms to the extent that parties are unable to readily discern the basis for the judge's decision and rulings, which is even more so since no discursive opinion was issued by the judge; In support of the instant Statement of Matters Complained of On Appeal the undersigned states as follows: 1. Judge Oler's Orders of September 19, 2008 and October 3, 2008 constitute errors of law and abuses of discretion as same suggest the Judge did not undertake an adequate and comprehensive review and analysis of amendment was denied. Order of Court, October 27, 2008. The court is unaware of the filing of any petition for review of this order denying amendment. See Pa. R.A.P. 3111, Note. See, e.g., Mumma v. The Estate of Robert M. Mumma, 04-6183 Civil Term (Ct. Com. Pl. Cumberland 2004); Mumma v. CRH, Inc., 99-1546 Civil Term (Ct. Com. Pl. Cumberland 1999); Mumma v. Pennsy Supply, Inc., 2765 Equity 1999 (Ct. Com. Pl. Cumberland 1999); Mumma v. G-A-T Distribution Corp., 94-0423 Civil Term (Ct. Com. Pl. Cumberland 1994); Mumma v. Nine Ninety-Nine, Inc., 14 Equity 1990 (Ct. Com. PI. Cumberland 1990); Mumma v. Mumma, 84 Equity 1990 (Ct. Com. Pl. Cumberland 1990); Mumma v. Mumma, 66 Equity 1988 (Ct. Com. Pl. Cumberland 1988). s See n.3, supra. 9 See Order of Court, October 28, 2005, In re: Estate of Robert M. Mumma, No. 1546 MDA 2005 (Pa. Superior Court) (quashal of prior appeal by Appellant from denial of motion to recuse undersigned judge). In this order, the Superior Court expressly advised Appellant that "[a]n order denying a motion for recusal is interlocutory and not appealable." Id. 10 Supplemental Objections, filed January 31, 2008. " Whether this document comports with Pennsylvania Rule of Appellate Procedure 1925(b) is beyond the scope of this opinion. But see Tucker v. R.M. Tours, 2007 PA Super 352, 939 A.2d 343; Kanter v. Epstein, 2004 PA Super 470, 866 A.2d 394. 2 the record, the factual issues, and the legal issues as denoted by the fact that the Orders were but a few sentences or paragraphs in length, and, most importantly, said Orders were not accompanied by any discursive opinion(s) which tangibly set forth the logical and analytical explanations as to why the Judge arrived at his decision(s). 2. Likewise, Judge Oler's Order of September 19, 2008 constitutes an error of law and an abuse of discretion as it reveals the Judge did not undertake an adequate and comprehensive review and analysis of the specific issues raised in the briefs filed subsequent to the August 18, 2008 proceedings, all issues requiring a judicial examination by the court which reveals the logical and analytical explanations as to why the judge issued his decision. 3. Judge Oler committed an error of law and an abuse of discretion by the continuation of his longstanding practice in this case of referring matters to an auditor which exceed the scope of the auditor's original appointment. To wit, the auditor was originally appointed when the Executrices filed a Petition for Appointment of Auditor on January 5, 2005, "to pass upon the objections" that had been filed by the undersigned which the Executrices averred had "raise[d] questions of fact". Subsequently, Judge Oler has used the Auditor's appointment has a repository for referrals of virtually every matter filed with the court inclusive of motions, requests, petitions, and preliminary objections which raise a panoply of questions of law (as opposed to the aforesaid questions of fact raised by objections to the account). 4. Specifically, Judge Oler committed an error of law and an abuse of discretion by the continuation of his longstanding practice in this case of referring matters to an auditor which exceed the scope of the auditor's original appointment including court filings related to the removal of the Executrices/Trustee, the Estate's waiver to contest a validly revoked disclaimer, the right to a jury trial, and the deemed denial of exceptions pursuant to Pa. O.C.R. 7.1(f). 5. Judge Oler committed an error of law and an abuse of discretion by the continuation of his longstanding practice in this case of referring matters to an auditor which exceed the scope of the auditor's original appointment as evidenced by the recent appointment of Attorney Buckley as the replacement auditor wherein Judge Oler has again referred matters to the Auditor "for inclusion in the issues assigned to him" as reflected by his Order dated September 22, 2008 regarding a filing by Barbara Mann Mumma (those issues assigned to Attorney Buckley include the "deemed referral" of all prior matters previously assigned to Attorney Andrews as evidenced by Paragraph #4 of the September 19, 2008 Order). 6. Judge Oler's aforesaid practice constitutes an error of law and an abuse of discretion by not following the local rules with respect to the scope of an auditor's appointment regarding the disposition of matters which raise questions of law. See, Local Rule 6.10-2(a), Rules of the Court of Common Pleas, Orphans' Court division. 7. Judge Oler's aforesaid practice constitutes an error of law and an abuse of discretion by not following 20 Pa. C.S. §751(1) which limits the court's power to appoint Masters to investigate issues of fact. 8. Judge Oler committed an error of law and an abuse of discretion by refusing to recuse or disqualify himself inasmuch as he alone was responsible for the prompt disposition of the business of the court as the Orphans' Court judge who remained accountable for the stewardship of the Estate case, yet matters brought before the Orphans' Court in this case have languished for months and years since the original appointment of the auditor in January 2005. (See, Further Motion for Recusal of Judge Oler filed on May 30, 2008; Further Motion for Vacation of Appointment of Attorney Andrews as Auditor filed on May 30, 2008; Brief in Support of Recusal Motion filed September 2, 2008; Motion for Reconsideration of Order Dated September 19, 2008 filed on September 29, 2008; Application to Amend Order of September 29, 2008 to Certify for Purposes of Taking an Interlocutory Appeal Under 42 Pa. C.S.A. §702(b), said filings being incorporated herein). 9. Judge Oler committed an error of law and an abuse of discretion by refusing to recuse or disqualify himself in light of Canon 3A(5) of the Code of Judicial Conduct which provides that judges should dispose promptly of the business of the court. 10. Judge Oler committed an error of law and an abuse of discretion by not undertaking appropriate measures to investigate why no interim reports or recommended orders were forthcoming from the auditor whom he appointed notwithstanding the fact that 19 separate matters were referred by Judge Oler to the Auditor for those specific purposes between January 2005 and the August 18, 2008 proceedings, with the culmination of such inactivity of the Auditor and the concomitant inactivity of Judge Oler resulting in the vacation of the auditor's appointment. 11. Judge Oler committed an error of law and an abuse of discretion by not undertaking appropriate measures to investigate why Attorney Andrews failed to schedule any pre-hearing conferences in this case following the sole pre-hearing conference held by said Auditor in October 2006, much less the failure to schedule an actual Auditor's hearing designed to resolve those matters which were entrusted to the Auditor by the Orphans' Court. 12. Judge Oler committed an error of law and an abuse of discretion by refusing to recuse or disqualify himself in light of Canon 3B(1) of the Code of Judicial Conduct which provides that the judges should diligently discharge their administrative responsibilities, maintain professional competence in judicial administration, and facilitate the performance of the administrative responsibilities of court officials. 13. Judge Oler committed an error of law and an abuse of discretion by refusing to recuse or disqualify himself in light of the appearance of impropriety resulting from the familial and employment relationships between himself and (i) Martson, Lewis & Bockius, (ii) The Martson Law Office, and/or (iii) Attorney Andrews. 4 14. Judge Oler committed an error of law and an abuse of discretion by not recusing himself from further participation in these proceedings after he had previously recused himself at the conclusion of the April 18, 2005 hearing in light of a disqualifying relationship between himself and Morgan, Lewis & Bockius, wherein at that time he had directed the Court Administrator to transfer the matter to another judge of this court. 15. Judge Oler committed an error of law and an abuse of discretion by refusing to recuse or disqualify himself after listening to Attorney Martson testify at the hearing on August 18, 2008 whereupon Judge Oler acknowledged that Mr. Martson either had been a material witness in this case (given his execution of an affidavit in lieu of attending a deposition in April 2004) or that Mr. Martson would be called again as a material witness in this case during future proceedings (most likely with respect to the disclaimer issues). 16. Judge Oler committed an error of law and an abuse of discretion by refusing to recuse or disqualify himself in light of Attorney Martson's testimony under Canon3C(1)(b) of the Code of Judicial Conduct which mandates his recusal or disqualification as judge in these proceedings by virtue of said Canon's "such lawyer has been a material witness" provision. 17. Judge Oler committed an error of law and an abuse of discretion by refusing to recuse or disqualify himself after listening to Attorney Andrews testify at the hearing on August 18, 2008 whereupon it was acknowledged that the judge had practiced law with Attorney Andrews in the Public Defender's Office. 18. Judge Oler committed an error of law and an abuse of discretion by refusing to recuse or disqualify himself in light of Attorney Andrews's testimony under Canon 3C(1)(b) of the Code of Judicial Conduct which mandates his recusal or disqualification as judge in these proceedings by virtue of said Canon's "such lawyer has been a material witness" provision. 19. Judge Oler committed an error of law and an abuse of discretion by not recusing himself from further participation in these proceedings after he had previously recused himself from another matter involving the undersigned in January 1997 because a deposition exhibit contained a reference to a discussion the Judge had with another litigant in that case about legal research being done, said discussion occurring before Judge Oler was elected to the bench. See, Exhibit 3 -August 18, 2008 hearing (copy of pre-trial conference order from proceedings held on January 2, 1997). 20. Judge Oler committed an error of law and an abuse of discretion by refusing to recuse or disqualify himself in light of the evidence of record which reflects the decisional law's requisite "cumulative effect" of assignments of instances where the appearance of impropriety might reasonably be questioned, combined with the discernible violations of the aforesaid Canons of the Code of Judicial Conduct. 5 21. Judge Oler committed an error of law and an abuse of discretion in his Order of September 19, 2008 by authorizing Attorney Andrews to submit a bill "for his services to date" inasmuch as there can be no reasonable justification to permit a vacated Auditor to submit a bill for services he performed when the Auditor himself testified as to the inadequacies and failure of the auditor proceedings for which he was responsible in the first instance, and such an auditor should not be compensated as a court official under the Code of Judicial Conduct inasmuch as he admittedly neglected to perform, or failed to perform timely, his court-appointed duties. 22. Judge Oler committed an error of law and an abuse of discretion by refusing to have the issue of his recusal or disqualification of as the Orphans' Court judge in this case to be heard and/or assigned for disposition by the court en Banc, especially in light of the fact that Judge Oler has twice refused to do so of his own accord, and since the evidence of record reflects the requisite "cumulative effect" of assignments of instances where the appearance of impropriety might reasonably be questioned along with discernible violations of several Canons of the Code of Judicial Conduct. 23. Judge Oler's practices constitute an error of law and an abuse of discretion to the extent that the court's supervision of the administration of this Estate (and the manner in which the court's acts and/or omissions have enabled the Executrices/Trustees, Morgan, Lewis & Bockius, and/or The Martson Law Office to utilize the court and the court system) manifests violations of the due process of law and unconstitutional deprivations of the property interests of the beneficiaries.12 This opinion in support of the order of court denying Appellant's most recent motion to recuse the undersigned judge is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS The decedent in this case, Robert M. Mumma, died on April 12, 1986,13 and his estate was opened later that year.14 The history of the estate has been related in the contexts of prior appeals by Appellant to the Superior Court in opinions by the undersigned judge dated July 15, 2005, November 4, 2005, and 'z Robert M. Mumma, II's Concise Statement of Matters Complained of on Appeal Pursuant to Pa.R.A.P. 1925(b), filed November 17, 2008 (footnote omitted). is See Entry into Safe Deposit Box To Remove a Will or Cemetery Deed, filed Apri124, 2006. 14 See Docket, In re: Estate of Robert M. Mumma, No. 21-86-398 (Orphans' Court Cumberland County) 6 November 8, 2006; copies of the historical parts of these opinions are attached hereto in the interest of avoiding a duplication of effort by the court. A hearing on Appellant's most recent motion for recusal of the court was held on August 18, 2008. At the hearing, which consumed the better part of a day, Appellant succeeded in supplementing the record established on his second motion to recuse, which was the subject of a quashed interlocutory appea1,15 with two additional facts: the undersigned judge had been employed in the late 1970s by a predecessor to one of the law firms now representing the decedent's estate16 and the court-appointed auditor had become stymied by the multiplicity of filings and logistical difficulties associated with the case." At Appellant's request,18 and without objection of the auditor,19 the court vacated the appointment of the auditor and appointed Joseph D. Buckley, Esq., 15 Order of Court, March 7, 2006, Pennsylvania Superior Court, In re: Estate of Robert M. Mumma, No. 1546 MDA 2005. '6 N.T. 10-11, 14-15, 19, Hearing, August 18, 2008. " N.T. 34-115. An example of the frustrations encountered by the auditor is contained in the following excerpt from his testimony at the hearing: We sent out multiple proposed dates [for a certain conference] to counsel and [Appellant]. It was difficult communicating with [Appellant]. At the time we sent that out, we got word-it was indicated that the fax number we were using to try and communicate with [Appellant] was not working. We got responses from I think everyone but [Appellant]. I went ahead and picked a date to schedule it on the expectation that [Appellant] would be available and sent out a notice of a specific date for that conference, and at that time I heard that [Appellant] was conflicted. So we could not proceed on the date that we had scheduled. It was scheduled again in March, I believe it was, and I don't recall, but it occurs to me that there was a conflict on that occasion as well. The conference did not occur. N.T. 104-05, Hearing, August 18, 2008. 'g Further Motion for Vacation of Appointment of [the Court-Appointed Auditor] As Auditor Pursuant to Orphans' Court Order of October 3, 2007, filed May 30, 2008. 19 See N.T. 110, 114, Hearing, August 18, 2008. 7 auditor in his stead.20 However, the court refused Appellant's request that it recuse itself from the case.21 From the portion of the order denying the request for recusal, Appellant filed a notice of appeal on October 17, 2008. DISCUSSION Statement of law. "An order denying a motion for recusal is interlocutory and not appealable." Order of Court, October 28, 2005, In re: Estate of Robert M. Mumma, No. 1546 MDA 2005 (Pennsylvania Superior Court) (quashal of earlier appeal by Appellant from denial of recusal motion); see Krieg v. Krieg, 743 A.2d 509 (Pa. Super. Ct. 1999). "It is the burden of the party requesting recusal to produce evidence establishing bias, prejudice or unfairness which raises a substantial doubt as to the jurist's ability to preside impartially." Commonwealth v. Abu-Jamal, 553 Pa. 485, 507, 720 A.2d 79, 89 (1998). In considering a recusal request, the jurist must first make a conscientious determination of his or her ability to assess the case in an impartial manner, free of personal bias or interest in the outcome. The jurist must then consider whether his or her continued involvement in the case creates an appearance of impropriety and/or would tend to undermine public confidence in the judiciary. This is a personal and unreviewable decision that only the jurist can make. Where a jurist rules that he or she can hear and dispose of a case fairly and without prejudice, that decision will not be overturned on appeal but for an abuse of discretion. Id. (citations omitted). Application of law to facts. In the present case, the court granted Appellant's request that a new auditor be appointed. Given that the decedent's death in this case occurred in 1986, the additional fact as to the undersigned judge's employment by a law firm in the decade preceding his death did not seem of sufficient consequence to afford the court an opportunity to withdraw from the case. 20 Order of Court, September 19, 2008. Z' Order of Court, September 19, 2008. 8 Joseph D. Buckley, Esq. 1237 Holly Pike Carlisle, PA 17013 Auditor Robert M .Mumma, II Box F Grantham, PA 17027 Robert M. Mumma, II 6880 S.E. Harbor Circle Stuart, FL 34996 Robert M. Mumma, II 840 Market Street Suite 164 Lemoyne, PA 17043 George B. Faller, Jr., Esq. 10 East High Street Carlisle, PA 17013 Brady L. Green, Esq. Morgan, Lewis & Bockius, LLP 1701 Market Street Philadelphia, PA 19103-2921 Linda Mumma Roth P.O. Box 480 Mechanicsburg, PA 17055 Ralph A. Jacobs, Esq. 1515 Market Street Suite 705 Philadelphia, PA 19102 BY THE COURT, J. esley O , Jr., J. 9 e IN RE: ESTATE OF IN THE COURT OF COMMON PLEAS OF ROBERT M. MUMMA CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION N0. 21-86-398 ORPHANS' COURT IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., July 15, 2005. In this Orphans' Court case, in which objections to accounts are presently subject to court-appointed auditor proceedings, a pro se litigant, Robert M. Mumma, II, ~ has appealed from interlocutory orders of this court without securing the certification provided for under Section 702(b) of the Judicial Code.2 The Notice of Appeal states as follows: Notice is hereby given that Robert M. Mumma II, a beneficiary of the Estate of Robert M. Mumma, hereby appeals to the Superior Court of Pennsylvania from the orders entered in this matter on April 25, 2005 and April 29, 2005. These orders have been entered in the docket as evidenced by the attached copy of the docket entry.3 The grounds for the appeal have been expressed in a statement of matters complained of on appeal as follows: 1. The Court erred in denying Robert M. Mumma II, a beneficiary and party in interest, the right to have a jury trial to resolve a substantial dispute of fact concerning the decedent's title to property, real or personal. 2. Whether the Court has the authority to Order Discovery issues to be determined by the Auditor. ' Although the court is reluctant to use the word litigious, it can be said that Mr. Mumma is far from a novice in this county with respect to litigation. See, e.g., Mumma v. CRH, Inc., 99-1546 Civil Term (Ct. Com. Pl. Cumberland 1999); Mumma v. Pennsy Supply, Inc., 2765 Equity 1999 (Ct. Com. Pl. Cumberland 1999); Mumma v. G-A-T Distribution Corp., 94-0423 Civil Term (Ct. Com. Pl. Cumberland 1994); Mumma v. Nine Ninety-Nine, Inc., 14 Equity 1990 (Ct. Com. Pl. Cumberland 1990); Mumma v. Nine Ninety-Nine, Inc., 15 Equity 1990 (Ct. Com. PI. Cumberland 1990); Mumma v. Mumma, 84 Equity 1990 (Ct. Com. Pl. Cumberland 1990); Mumma v. Mumma, 66 Equity 1988 (Ct. Com. PI. Cumberland 1988). 2 Act of July 9, 1976, P.L. 586, §2, as amended, 42 Pa. C.S. §702(b). 3 Notice of Appeal, filed May 19, 2005. 3. Whether the Court erred in appointing an Auditor while Discovery is still outstanding and before all objections have been filed.4 This opinion in support of the orders appealed from is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS The early background of this case has been well summarized by the Honorable George E. Hoffer, President Judge, in an opinion of this court in 2000. On January 6, 1999, Robert M. Mumma II ...petitioned this court for an accounting of the estate of his father, Robert M. Mumma Sr.... ,who died testate on April 12, 1986. The decedent's will and the codicil thereto were probated on June 5, 1986. The will appoints Mrs. Barbara McK. Mumma, decedent's widow, and Lisa M. Morgan ... as executrices thereof and as trustees of a Marital Trust and a Residuary Trust created thereunder .... Under the will, the presumptive remaindermen of the Trusts, if they survive Mrs. Mumma, are the decedent's children: petitioner Robert M. Mumma II, Linda M. Mumma, Barbara M. Mumma and Mrs. Morgan. The decedent bequeathed to his testamentary trustees an amount equal to fifty percent of his total gross estate to be held in trust exclusively for the benefit of his wife during her lifetime, the principal to be distributed to the decedent's children upon her death. In addition, the decedent gave his residuary estate to his testamentary trustees to be held in trust exclusively for the benefit of his wife during her lifetime, the principal to be paid to the decedent's children upon her death. [Decedent's widow and Mrs. Morgan] filed interim accounts of their acts and transactions as executrices and as trustees on August 9, 1991... . [Robert M. Mumma, II,] disclaimed his interest under the will in 1987. In 1989, [former President Judge Harold E. Sheely ofJ this court granted petitioner's motion to revoke his disclaimer. [Robert M. Frey, Esq.], who was appointed guardian ad litem for the minor persons interested in the Estate in 1988, appealed the revocation of the disclaimer. The Superior Court ruled that Mr. Frey's representation of the estate with respect to the revocation of the disclaimer was beyond the scope of his limited appointment and therefore he lacked standing to appeal. [Robert M. Mumma, II, eventually] ask[ed] for a complete accounting of the Estate, including an accounting of the Trusts in which [he] claim[ed] 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 of [his] disclaimer ha[d] not been fully litigated....s a Concise Statement of Matters Complained of on Appeal, filed June 10, 2005. ' In re Estate of Robert M. Mumma, No. 21-86-398, slip op. at 1-3 (Ct. Com. Pl. Cumberland February 23, 2000) (Hoffer, P.J.) (citations omitted). This position of the executrices/trustees was rejected by the court, and an accounting by the executrices/trustees was ordered on February 23, 2000.6 Thereafter, a procedural morass developed as accounts, objections to accounts, supplemental objections to accounts, motions to quash subpoenas, motions of counsel to withdraw, motions to require notice of property dispositions, petitions to remove executrices/trustees, exceptions to orders, motions to stay, petitions for injunctions, motions to compel discovery, etc., were filed. Among these filings was a motion entitled "Objector's Motion To Compel Discovery," submitted by Robert M. Mumma, II, on December 21, 2004. Among them also was a 74-page document filed by Robert M. Mumma, II, entitled: SUPPLEMENTAL CONSOLIDATED STATEMENT OF OBJECTIONS TO THE ACCOUNT OF BARBARA K. McK. MUMMA AND LISA M. MORGAN AS CO-EXECUTORS OF THE ESTATE OF ROBERT M. MUMMA, DECEASED AND TO THE FIRST, SECOND, THIRD AND FOURTH INTERIM ACCOUTINGS OF BARBARA K. McK. MUMMA AND LISA M. MORGAN AS CO-TRUSTEES OF THE MARITAL TRUST UNDER WILL THE WILL [sic] OF ROBERT M. MUMMA, DECEASED$ These objections are described in the document by the following headings: The Marital Trust Appears To Be Overfunded. The Estate Account As Filed Fails To Allocate Funds to the Marital Trust in Accordance with the Express Direction in Decedent's Will The Account As Filed Fails To Adequately Explain or Document Significant Changes in Certain Major Investment Holdings of the Estate The Co-Executrices of the Estate Failed To Preserve Assets Contained in Decedent's Safety Deposit Box 3332 at the Dauphin Deposit Bank at the Time of His Death and/or Failed to Adequately Investigate the Disappearance of Decedent's Assets Which Were Contained in this Safety Deposit Box The Number of Shares of Pennsylvania Supply Company Stock (700) Listed on the Account Is Overstated and/or Has Been Overvalued 6 In re Estate of Robert M. Mumma, No. 21-86-398 (Ct. Com. Pl. Cumberland February 23, 2000) (Hoffer, P.J.), appeal quashed, 776 A.2d 300 (2001) (table decision). Objector's Motion To Compel Discovery, filed December 21, 2004. s Supplemental Consolidated Statement of Objections to the Account of Barbara K. McK. Mumma and Lisa M. Morgan as Co-Executors of the Estate of Robert M. Mumma, Deceased and to the First, Second, Third and Fourth Interim Accountings of Barbara K. McK. Mumma and Lisa M. Morgan as Co-Trustees of the Marital Trust Under Will the Will of Robert M. Mumma, Deceased, filed May 27, 2004. Liquidation of the Pennsylvania Supply Company Stock Was Contrary to the Express Wishes of the Decedent and Was Unnecessary The Co-Executrices of the Estate Refused To Consider Any Other Offers for the Sale of the Pennsylvania Supply Company Assets Which Were Sold Outside of the Family to CRH, LPC Despite the Fact That Objector Had Made a Higher Offer for These Same Assets Improper Accounting for Fulton Bank Building in Lemoyne, PA Improper Accounting of Stock Distributions to Barbara McK. Mumma Improper Accounting for/Distribution of Estate Income to Barbara McK. Mumma Objection to Valuation of Leadville, Colorado Property Objection to Valuation of Bender Property in Mount Holly Springs, Pennsylvania Objection to Valuation of Grove Property in Mount Holly Springs, Pennsylvania Objection to Valuation of Lebanon Rock, Inc. Stock Failure of Estate to Perform Under the Shareholders Agreement for High-Spec, Inc. Stock Objection to Value of High-Spec, Inc. Stock Objections to the Attorney Fees Paid by Decedent's Estate and the Marital Trust to Morgan Lewis and Bockius Objections to the Attorney Fees Paid by the Marital Trust to Stradley, Ronon, Stevens & Young Objection to Jurisdiction Incorporation of Prior Objections Filed by Charles Shields Objections Based on Receipts of Principal9 Disbursements of Principal Distribution of Principal to Beneficiaries Changes in Princi[pa]l Payments of Administration Expenses Distribution of Income to Beneficiaries Improper Distribution of Family Assets Impermissible Withdrawals Failure To Maximize Asset Values Acts of Corporate Self-Dealing10 9 This and the objections which follow were contained in an earlier filing of objections. The section of the objections referencing "overfunding" read as follows: 1. The Marital Trust Appears To Be Overfunded, The Estate Account as Filed Fails to Allocate Funds to the Marital Trust in Accordance with the Express Direction in Decedent's Will A.) Under Item Seventh of Decedent's Will the amount to be awarded to the Marital Trust is a standard pecuniary formula gift: SEVENTH. If my wife, BARBARA McK. MUMMA, survives me, I give and bequeath to the trustees hereinafter named, an amount equal to fifty (SO%) percent of my total gross estate as finally determined for Federal Estate Tax purposes, taking into account and including therein, for computation purposes, my undivided interest in the value of all my interests in property which pass or which or have passed to my wife under other provisions of this Will, or otherwise than under this Will, but only to the extent that such interests are, for purposes of the Federal Estate Tax, included in determining my gross estate and allowed as a marital deduction. B.) The Account as filed fails to compute the amount to be awarded to the Marital Trust with reference to the Federal Estate Tax Return, nor does the Account give credit (for computation purposes) against the amount to be awarded to the Marital Trust for the value of the joint marital and other property which had passed to BARBARA McK. MUMMA under other provisions of the Will or outside of probate (which property was required to be included in the Federal Estate Tax return as filed). A copy of the relevant portions of Federal Estate Return Form 706 as filed are attached hereto as Exhibit "A". Total Gross Estate (Federal) $16,645,786.00 %2 of Total Gross Fed Estate $8,322,893.00 Less: Schedule M Spousal Joint & Other Property Passing Outside Probate (861,018.00) Total Amount Which Should Have Been Awarded to Marital Trust 7,461,875.00 10 Supplemental Consolidated Statement of Objections to the Account of Barbara K. McK. Mumma and Lisa M. Morgan as Co-Executors of the Estate of Robert M. Mumma, Deceased and to the First, Second, Third and Fourth Interim Accountings of Barbara K. McK. Mumma and Lisa M. Morgan as Co-Trustees of the Marital Trust Under Will the Will [sic] of Robert M. Mumma, Deceased, filed May 27, 2004. C.) Under the Account as filed, the following principal amounts were actually distributed to the Marital Trust (See Exhibit "B" attached hereto): 1986 - 1987 (Vol 1, Page 60) $6,289,808.65 2001 - 2002 (Vo14, Sch E, Page 1) 2,358,359.85 Total Principal Distributions To Marital Trust $8,648,168,50 D.) The Marital Trust is over funded by $1,186,293.50 calculated as follows: Actual Principal Distributions $8,648,168.50 Required Under Will (7,461,875.00 Marital Trust Overfunded by: 1,186,293.50 These overfunding amounts may need to be adjusted as Objector was not able to determine if the adjustments to valuations were made by the Internal Revenue Service in time for filing of these objections. If any asset valuation adjustments occurred on the federal estate tax return, then the carrying values of those affected assets should have had corresponding adjustments on the Account, as the Will directs that the adjusted amounts for federal estate tax purposes are to be used as the basis for determining the gift to the Marital Trust. E.) Objector believes that the Marital Trust maybe overfunded by additional amounts depending on adjustments to the Estate Account upon this Court rulings on certain of Objector's other objections set forth below." In an attempt to bring this matter, which commenced in 1986, under control, the undersigned judge appointed an auditor in the person of the distinguished Cumberland County attorney Taylor P. Andrews, Esq.12 The order appointing Mr. Andrews was dated January 6, 2005.13 Within several weeks of the appointment, Robert M. Mumma, II, filed a motion to have the auditor replaced.14 Following a hearing on March 11, 2005, at " Id., at 2-4. 12 Order of Court, January 6, 2005. 13 Order of Court, January 6, 2005. The issues to be considered by the auditor include (a) whether the conduct of the executrices/trustees warrants their removal and (b) whether the validity of the revocation of disclaimer by Robert M. Mumma, II, can continue to be litigated. Orders of Court, March 11, 2005, April 22, 2005. 14 Motion To Recuse/Remove Attorney Taylor P. Andrews and To Appoint a New Auditor, filed January 31, 2005. which a record was made on this motion, it was denied as devoid of merit.15 An oral motion made at this proceeding by Robert M. Mumma, II, that the court also recuse itself from further participation in the case was similarly denied.16 Another oral motion made at the proceeding by Robert M. Mumma, II - for a jury trial - was also denied.l~ Another oral motion made by Robert M. Mumma, II, at the proceeding - for a stay pending completion of discovery -was also denied,18 and a formal motion to this effect was later denied by order dated March 30, 2005 (docketed March 31, 2005).19 On March 24, 2005, Robert M. Mumma, II, filed a "Request for Jury Trial on Objections to Inventory and Accounting Pursuant to PEF Code 777(a)." The motion read, in its entirety, as follows: AND NOW, comes the Petitioner, Robert M. Mumma, pro se, and files the within Request for a jury trial on objections to the inventory and accounting in the above-noted Estate and in support thereof avers the following: 1. Petitioner is Robert M. Mumma, an adult individual, acting pro se. 2. Petitioner is an heir to the Estate of his late father, Robert M. Mumma, and as such is a party in interest to the estate. 3. Petitioner avers that a substantial dispute exists as to the ownership of certain assets listed in the Estate's inventory and accounting. 4. Specifically, Petitioner believes that the Estate has inventoried assets that were never owned by his father and therefore should not have become part of his estate. 5. Petitioner has filed objections to the account filed by the Estate and the Court has yet to hear those objections. 15 Order of Court, March 1 1, 2005. 16 Order of Court, March 11, 2005. A subsequent motion for recusal of the court filed by Robert M. Mumma, II, has been made the subject of a hearing scheduled for August 29, 2005. Order of Court, June 30, 2005. " Order of Court, March 11, 2005. '$ Order of Court, March 11, 2005. 19 Order of Court, March 30, 2005. 6. Pursuant to the Probate, Estate and Fiduciary (PEF) Code, Section 777(a), the Petitioner is entitled to a jury trial regarding the ownership of certain assets of the Estate. WHEREFORE, Petitioner respectfully requests that the Court order a jury trial on his objections as to matters of ownership of certain assets in the Estate.20 A rule was issued on the request for a jury trial on March 30, 2005,21 and a response to the request was filed by Decedent's widow and Mrs. Morgan on April 8, 2005.22 This response, inter alia, denied the existence in this case of any unresolved material dispute as to the decedent's title to property.23 The request for a jury trial was denied, for the second time, by order dated April 21, 2005 (docketed April 25, 2005).24 This denial is apparently one of the interlocutory orders being appealed by Robert M. Mumma, II. Meanwhile, on April 4, 2005, the court held a conference on the motion to compel discovery that had been filed by Robert M. Mumma, II. The on-the-record conference, which the auditor attended and participated in, resulted in the following order of court: AND NOW, this 4th day of April, 2005, upon consideration of the Motion To Compel Discovery filed on behalf of Robert M. Mumma, II, ...and following a conference ... in which Brady L. Green, Esquire, Michael J. Riffitts, Esquire, and No V. Otto, III, Esquire, represented Barbara McK. Mumma and Lisa M. Morgan, Ralph A. Jacobs, Esquire, represented Barbara Mann Mumma, and Robert M. Mumma, II, appeared pro se, it is ordered and directed that the executrixes/trustees, within 20 days of today's date, file responses to the Objector's First Set of Request for Production of Documents to the Executrixes/Trustees, the Objector's First Set of Interrogatories to Executrixes, Robert M. Mumma, II's, Second Set 20 Request for Jury Trial on Objections to Inventory and Accounting Pursuant to PEF Code 777(a), filed March 24, 2005. 21 Order of Court, March 30, 2005. zz Response of Barbara McK. Mumma and Lisa M. Morgan to Request of Robert M. Mumma, II for a Jury Trial Pursuant to 20 Pa. C.S. §777(a), filed April 8, 2005, at 2. Zs Response of Barbara McK. Mumma and Lisa M. Morgan to Request of Robert M. Mumma, II €or a Jury Trial Pursuant to 20 Pa. C.S. §777(a), filed April 8, 2005, at 2. 2a Order of Court, April 21, 2005 of Requests for Production of Documents to the Executrixes/Trustees, and Robert M. Mumma, II's, Third Set of Requests for Production of Documents to the Executrixes/Trustees, and that the auditor, within 45 days of today's date, hold apre- hearing conference among the interested parties for purposes of recommending an order with respect to any further discovery in the case and with respect to any issues presented by the responses of the executrixes/trustees to the discovery requests.as Shortly thereafter, Robert M. Mumma, II, filed a Motion To Compel Inspection of All Books and Records.26 As had been done with his earlier discovery motion, this matter was referred to the auditor in the first instance for purposes of proposing a recommended order.27 This order of court, dated April 29, 2005 (docketed April 29, 2005), referring the motion to the auditor for review, is apparently one of the interlocutory orders being appealed by Robert M. Mumma, II. Mr. Andrews, in his capacity as auditor, conducted the pre-hearing conference referred to in this court's order dated Apri14, 2005, quoted above, and, in accordance with his recommendation,28 the court entered the following order dealing, for the moment, with the various outstanding discovery issues in the case: AND NOW, this 19th day of May 2005, upon recommendation of the Auditor in this case, it is hereby ordered as follows with regard to discovery pertaining to the objections that have been filed to the accounts filed at the docket: Any party expressing one or more objections to one or more of the accounts shall serve his or her discovery requests upon counsel for the estate and related trusts no later than June 13, 2005. Past discovery requests that have not been answered shall be served again. Copies of all discovery requests shall be sent to the Auditor and docketed of record with the Clerk of the Orphans' Court. zs Order of Court, April 4, 2005 z6 Motion To Compel Inspection of All Books and Records, filed Apri122, 2005. 27 Order of Court, April 29, 2005. 28 Auditor's Request for Discovery Order, filed May 17, 2005. The Estate and related trusts shall file a response to the requested discovery no later than July 13, 2005, and any discovery that is not subject to an objection shall be provided by July 28, 2005. All objections to the discovery shall be copied to the Auditor and docketed of record with the Clerk of the Orphans' Court, and shall be supported with a brief setting forth the legal authorities supporting the objections to the discovery. Any response that the requested discovery has been previously provided shall specifically state the time, manner and context of the previous delivery. A party seeking discovery that is resisted by the estate or trusts shall file a brief with legal authorities in support of the requested discovery by August 27, 2005. This brief shall be served upon the Auditor as well as all other parties.29 Meanwhile, Robert M. Mumma, II, filed a "Request for Order That Estate Has Waived Its Right To Contest a Disclaimer Filed and Revoked or, Alternatively, Request for Immediate Hearing To Determine Whether the Estate Has Waived Its Right," on April 20, 2005.30 By order of court dated April 22, 2005, this question was included among the issues to be reviewed by the auditor in the course of his duties relating to the objections to the accounts.31 The date of docketing of this latter order (April 25, 2005) suggests that it may be one of the interlocutory orders from which Robert M. Mumma, II, has appealed. However, it does not seem to be encompassed by his statement of matters complained of on appeal. z9 Order of Court, May 19, 2005. so Request for Order That Estate Has Waived Its Right To Contest a Disclaimer Filed and Revoked or, Alternatively, Request for Immediate Hearing To Determine Whether the Estate Has Waived Its Right, filed Apri120, 2005. 31 Order of Court, filed April 22, 2005. IN RE: ESTATE OF IN THE COURT OF COMMON PLEAS OF ROBERT M. MUMMA CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION NO. 21-86-398 IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., November 4, 2005. In this Orphans' Court case dating back to 1986, in which objections to accounts are presently subject to court-appointed auditor proceedings, a pro se litigant, Robert M. Mumma, II, ~ has continued a practice2 of appealing from interlocutory orders without securing the certification provided for under Section 702(b) of the Judicial Code. The present appeal is from an order of the undersigned judge denying Mr. Mumma's second motion requesting that the court recuse itsel£3 The grounds for the appeal have been expressed in a statement of matters complained of on appeal as follows: 1. The Trial Court Erred In Denying The Motion of Petitioner Robert M. Mumma, II, For Trial Judge To Recuse Himself Due To Appearance of Impropriety. 2. The Trial Court Erred In Prohibiting Petitioner Robert M. Mumma, II, From Appealing The Order Pursuant To Pa.R.A.P. 313.4 ' Although the court is reluctant to use the word litigious, it can be said that Mr. Mumma is far from a novice in this county with respect to litigation. See, e.g., Mann Realty Associates, Inc. v. Pennsy Supply, Inc., OS-655 Civil Term (Ct. Com. P1. Cumberland 2005); Mumma v. CRH, Inc., 99-1546 Civil Term (Ct. Com. Pl. Cumberland 1999); Mumma v. Pennsy Supply, Inc., 2765 Equity 1999 (Ct. Com. Pl. Cumberland 1999); Mumma v. G-A-T Distribution Corp., 94-0423 Civil Term (Ct. Com. Pl. Cumberland 1994); Mumma v. Mumma, 84 Equity 1990 (Ct. Com. Pl. Cumberland 1990); Mumma v. Nine Ninety-Nine, Inc., 15 Equity 1990 (Ct. Com. PI. Cumberland 1990); Mumma v. Nine Ninety-Nine, Inc., 14 Equity 1990 (Ct. Com. Pl. Cumberland 1990); Mumma v. Mumma, 66 Equity 1988 (Ct. Com. Pl. Cumberland 1988). z See Notice of Appeal, filed May 19, 2005 (appeal from three earlier interlocutory orders); Opinion of Court Pursuant to Pa. R.A.P. 1925, issued July 15, 2005. s Notice of Appeal, filed September 15, 2005. The first motion was made, and denied, on March 11, 2005. See Order of Court, March 11, 2005. a Concise Statement of Matters Complained of on Appeal, filed October 4, 2005. This opinion in support of the order appealed from is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS The early background of this case has been well summarized by the Honorable George E. Hoffer, President Judge, in an opinion of this court in 2000. On January 6, 1999, Robert M. Mumma II ...petitioned this court for an accounting of the estate of his father, Robert M. Mumma Sr.... ,who died testate on April 12, 1986. The decedent's will and the codicil thereto were probated on June 5, 1986. The will appoints Mrs. Barbara McK. Mumma, decedent's widow, and Lisa M. Morgan ... as executrices thereof and as trustees of a Marital Trust and a Residuary Trust created thereunder .... Under the will, the presumptive remaindermen of the Trusts, if they survive Mrs. Mumma, are the decedent's children: petitioner Robert M. Mumma II, Linda M. Mumma, Barbara M. Mumma and Mrs. Morgan. The decedent bequeathed to his testamentary trustees an amount equal to fifty percent of his total gross estate to be held in trust exclusively for the benefit of his wife during her lifetime, the principal to be distributed to the decedent's children upon her death. In addition, the decedent gave his residuary estate to his testamentary trustees to be held in trust exclusively for the benefit of his wife during her lifetime, the principal to be paid to the decedent's children upon her death. [Decedent's widow and Mrs. Morgan] filed interim accounts of their acts and transactions as executrices and as trustees on August 9, 1991... . [Robert M. Mumma, II,] disclaimed his interest under the will in 1987. In 1989, [former President Judge Harold E. Sheely ofJ this court granted petitioner's motion to revoke his disclaimer. [Robert M. Frey, Esq.], who was appointed guardian ad litem for the minor persons interested in the Estate in 1988, appealed the revocation of the disclaimer. The Superior Court ruled that Mr. Frey's representation of the estate with respect to the revocation of the disclaimer was beyond the scope of his limited appointment and therefore he lacked standing to appeal. [Robert M. Mumma, II, eventually] ask[ed] for a complete accounting of the Estate, including an accounting of the Trusts in which [he] claim[ed] 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 of [his] disclaimer ha[d] not been fully litigated....5 This position of the executrices/trustees was rejected by the court, and an accounting by the executrices/trustees was ordered on February 23, 2000.6 5 In re Estate of Robert M. Mumma, No. 21-86-398, slip op. at 1-3 (Ct. Com. Pl. Cumberland February 23, 2000) (Hoffer, P.J.) (citations omitted). 6In re Estate of Robert M. Mumma, No. 21-86-398 (Ct. Com. Pl. Cumberland February 23, 2000) (Hoffer, P.J.), appeal quashed, 776 A.2d 300 (2001) (table decision). Thereafter, a procedural morass developed as accounts, objections to accounts, supplemental objections to accounts, motions to quash subpoenas, motions of counsel to withdraw, motions to require notice of property dispositions, petitions to remove executrices/trustees, exceptions to orders, motions to stay, petitions for injunctions, motions to compel discovery, etc., were filed. Among these filings was a motion entitled "Objector's Motion To Compel Discovery," submitted by Robert M. Mumma, II, on December 21, 2004. Among them also was a 74-page document filed by Robert M. Mumma, II, entitled: SUPPLEMENTAL CONSOLIDATED STATEMENT OF OBJECTIONS TO THE ACCOUNT OF BARBARA K. McK. MUMMA AND LISA M. MORGAN AS CO-EXECUTORS OF THE ESTATE OF ROBERT M. MUMMA, DECEASED AND TO THE FIRST, SECOND, THIRD AND FOURTH INTERIM ACCOUTINGS OF BARBARA K. McK. MUMMA AND LISA M. MORGAN AS CO-TRUSTEES OF THE MARITAL TRUST UNDER WILL THE WILL [sic] OF ROBERT M. MUMMA, DECEASEDS These objections are described in the document by the following headings: The Marital Trust Appears To Be Overfunded. The Estate Account As Filed Fails To Allocate Funds to the Marital Trust in Accordance with the Express Direction in Decedent's Will The Account As Filed Fails To Adequately Explain or Document Significant Changes in Certain Major Investment Holdings of the Estate The Co-Executrices of the Estate Failed To Preserve Assets Contained in Decedent's Safety Deposit Box 3332 at the Dauphin Deposit Bank at the Time of His Death and/or Failed to Adequately Investigate the Disappearance of Decedent's Assets Which Were Contained in this Safety Deposit Box The Number of Shares of Pennsylvania Supply Company Stock (700) Listed on the Account Is Overstated and/or Has Been Overvalued Liquidation of the Pennsylvania Supply Company Stock Was Contrary to the Express Wishes of the Decedent and Was Unnecessary The Co-Executrices of the Estate Refused To Consider Any Other Offers for the Sale of the Pennsylvania Supply Company Assets Which Were Sold Outside of the Family to CRH, LPC Despite the Fact That Objector Had Made a Higher Offer for These Same Assets Objector's Motion To Compel Discovery, filed December 21, 2004. ° Supplemental Consolidated Statement of Objections to the Account of Barbara K. McK. Mumma and Lisa M. Morgan as Co-Executors of the Estate of Robert M. Mumma, Deceased and to the First, Second, Third and Fourth Interim Accountings of Barbara K. McK. Mumma and Lisa M. Morgan as Co-Trustees of the Marital Trust Under Will the Will of Robert M. Mumma, Deceased, filed May 27, 2004. Improper Accounting for Fulton Bank Building in Lemoyne, PA Improper Accounting of Stock Distributions to Barbara McK. Mumma Improper Accounting for/Distribution of Estate Income to Barbara McK. Mumma Objection to Valuation of Leadville, Colorado Property Objection to Valuation of Bender Property in Mount Holly Springs, Pennsylvania Objection to Valuation of Grove Property in Mount Holly Springs, Pennsylvania Objection to Valuation of Lebanon Rock, Inc. Stock Failure of Estate to Perform Under the Shareholders Agreement for High-Spec, Inc. Stock Objection to Value of High-Spec, Inc. Stock Objections to the Attorney Fees Paid by Decedent's Estate and the Marital Trust to Morgan Lewis and Bockius Objections to the Attorney Fees Paid by the Marital Trust to Stradley, Ronon, Stevens & Young Objection to Jurisdiction Incorporation of Prior Objections Filed by Charles Shields Objections Based on Receipts of Principal9 Disbursements of Principal Distribution of Principal to Beneficiaries Changes in Princi[pa]l Payments of Administration Expenses Distribution of Income to Beneficiaries Improper Distribution of Family Assets Impermissible Withdrawals Failure To Maximize Asset Values Acts of Corporate Self-Dealing10 The section of the objections referencing "overfunding" read as follows: 9 This and the objections which follow were contained in an earlier filing of objections. 10 Supplemental Consolidated Statement of Objections to the Account of Barbara K. McK. Mumma and Lisa M. Morgan as Co-Executors of the Estate of Robert M. Mumma, Deceased and to the First, Second, Third and Fourth Interim Accountings of Barbara K. McK. Mumma and Lisa M. Morgan as Co-Trustees of the Marital Trust Under Will the Will [sic] of Robert M. Mumma, Deceased, filed May 27, 2004. 1. The Marital Trust Appears To Be Overfunded. The Estate Account as Filed Fails to Allocate Funds to the Marital Trust in Accordance with the Express Direction in Decedent's Will A.) Under Item Seventh of Decedent's Will the amount to be awarded to the Marital Trust is a standard pecuniary formula gift: SEVENTH.• If my wife, BARBARA McK. MUMMA, survives me, I give and bequeath to the trustees hereinafter named, an amount equal to fifty (SO%) percent of my total gross estate as finally determined for Federal Estate Tax purposes, taking into account and including therein, for computation purposes, my undivided interest in the value of all my interests in property which pass or which or have passed to my wife under other provisions of this Will, or otherwise than under this Will, but only to the extent that such interests are, for purposes of the Federal Estate Tax, included in determining my gross estate and allowed as a marital deduction. B.) The Account as filed fails to compute the amount to be awarded to the Marital Trust with reference to the Federal Estate Tax Return, nor does the Account give credit (for computation purposes) against the amount to be awarded to the Marital Trust for the value of the joint marital and other property which had passed to BARBARA McK. MUMMA under other provisions of the Will or outside of probate (which property was required to be included in the Federal Estate Tax return as filed). A copy of the relevant portions of Federal Estate Return Form 706 as filed are attached hereto as Exhibit "A". Total Gross Estate (Federal) '/2 of Total Gross Fed Estate Less: Schedule M Spousal Joint & Other Property Passing Outside Probate Total Amount Which Should Have Been Awarded to Marital Trust $16,645,786.00 $8,322,893.00 (861,018.00) 7,461,875.00 C.) Under the Account as filed, amounts were actually distributed to Exhibit "B" attached hereto): the following principal the Marital Trust (See 1986 - 1987 (Vol 1, Page 60) $6,289,808.65 2001 -2002 (Vo14, Sch E, Page 1) 2,358,359.85 Total Principal Distributions To Marital Trust $8,648,168,50 D.) The Marital Trust is over funded by $1,186,293.50 calculated as follows: Actual Principal Distributions $8,648,168.50 Required Under Will (7,461,875.00) Marital Trust Overfunded by: 1,186,293.50 These overfunding amounts may need to be adjusted as Objector was not able to determine if the adjustments to valuations were made by the Internal Revenue Service in time for filing of these objections. If any asset valuation adjustments occurred on the federal estate tax return, then the carrying values of those affected assets should have had corresponding adjustments on the Account, as the Will directs that the adjusted amounts for federal estate tax purposes are to be used as the basis for determining the gift to the Marital Trust. E.) Objector believes that the Marital Trust maybe overfunded by additional amounts depending on adjustments to the Estate Account upon this Court rulings on certain of Objector's other objections set forth below." In an attempt to bring this matter, which commenced in 1986, under control, the undersigned judge appointed an auditor in the person of the distinguished Cumberland County attorney Taylor P. Andrews, Esq.12 The order appointing Mr. Andrews was dated January 6, 2005.13 Within several weeks of the appointment, Robert M. Mumma, II, filed a motion to have the auditor replaced.14 Following a hearing on March 11, 2005, at which a record was made on this motion, it was denied as devoid of merit.ls An oral motion made at this proceeding by Robert M. Mumma, II, that the court also recuse itself from further participation in the case was similarly denied.lb Another " Id., at 2-4. 'Z Order of Court, January 6, 2005. 13 Order of Court, January 6, 2005. The issues to be considered by the auditor include (a) whether the conduct of the executrices/trustees warrants their removal and (b) whether the validity of the revocation of disclaimer by Robert M. Mumma, II, can continue to be litigated. Orders of Court, March 11, 2005, Apri122, 2005. 14 Motion To Recuse/Remove Attorney Taylor P. Andrews and To Appoint a New Auditor, filed January 31, 2005. 15 Order of Court, March 11, 2005. 16 Order of Court, March 11, 2005. oral motion made at the proceeding by Robert M. Mumma, II - for a jury trial - was also denied.l~ Another oral motion made by Robert M. Mumma, II, at the proceeding - for a stay pending completion of discovery -was also denied,lg and a formal motion to this effect was later denied by order dated March 30, 2005 (docketed March 31, 2005).19 On March 24, 2005, Robert M. Mumma, II, filed a "Request for Jury Trial on Objections to Inventory and Accounting Pursuant to PEF Code 777(a)." A rule was issued on the request for a jury trial on March 30, 2005,20 and a response to the request was filed by Decedent's widow and Mrs. Morgan on April 8, 2005.21 This response, inter alia, denied the existence in this case of any unresolved material dispute as to the decedent's title to property.22 The request for a jury trial was denied, for the second time, by order dated Apri121, 2005 (docketed April 25, 2005).23 This interlocutory order was appealed by Robert M. Mumma, II,24 and the appeal remains pending in the Superior Court at No. 856 MDA 2005. Meanwhile, on April 4, 2005, the court held a conference on the motion to compel discovery that had been filed by Robert M. Mumma, II. The on-the-record conference, which the auditor attended and participated in, resulted in the following order of court: AND NOW, this 4th day of April, 2005, upon consideration of the Motion To Compel Discovery filed on behalf of Robert M. Mumma, II, ...and following a conference ... in which Brady L. "Order of Court, March 11, 2005. 'g Order of Court, March 11, 2005. 19 Order of Court, March 30, 2005. zo Order of Court, March 30, 2005. 21 Response of Barbara McK. Mumma and Lisa M. Morgan to Request of Robert M. Mumma, II for a Jury Trial Pursuant to 20 Pa. C.S. §777(a), filed April 8, 2005, at 2. zz Response of Barbara McK. Mumma and Lisa M. Morgan to Request of Robert M. Mumma, II for a Jury Trial Pursuant to 20 Pa. C.S. §777(a), filed April 8, 2005, at 2. zs Order of Court, Apri121, 2005. za Notice of Appeal, filed May 19, 2005. Green, Esquire, Michael J. Riffitts, Esquire, and No V. Otto, III, Esquire, represented Barbara McK. Mumma and Lisa M. Morgan, Ralph A. Jacobs, Esquire, represented Barbara Mann Mumma, and Robert M. Mumma, II, appeared pro se, it is ordered and directed that the executrixes/trustees, within 20 days of today's date, file responses to the Objector's First Set of Request for Production of Documents to the Executrixes/Trustees, the Objector's First Set of Interrogatories to Executrixes, Robert M. Mumma, II's, Second Set of Requests for Production of Documents to the Executrixes/Trustees, and Robert M. Mumma, II's, Third Set of Requests for Production of Documents to the Executrixes/Trustees, and that the auditor, within 45 days of today's date, hold apre- hearing conference among the interested parties for purposes of recommending an order with respect to any further discovery in the case and with respect to any issues presented by the responses of the executrixes/trustees to the discovery requests.25 Shortly thereafter, Robert M. Mumma, II, filed a "Motion To Compel Inspection of All Books and Records." 26 As had been done with his earlier discovery motion, this matter was referred to the auditor in the first instance for purposes of proposing a recommended order.27 This interlocutory order, dated April 29, 2005 (docketed April 29, 2005), referring the motion to the auditor for review, was appealed by Robert M. Mumma, II,28 and remains pending in the Superior Court at No. 856 MDA 2005. Mr. Andrews, in his capacity as auditor, conducted the pre-hearing conference referred to in this court's order dated Apri14, 2005, quoted above, and, in accordance with his recommendation,29 the court entered the following order dealing, for the moment, with the various outstanding discovery issues in the case: AND NOW, this 19th day of May 2005, upon recommendation of the Auditor in this case, it is hereby ordered as zs Order of Court, April 4, 2005. zb Motion To Compel Inspection of All Books and Records, filed April 22, 2005. Z' Order of Court, April 29, 2005. 28 Notice of Appeal, filed May 19, 2005. 29 Auditor's Request for Discovery Order, filed May 17, 2005. follows with regard to discovery pertaining to the objections that have been filed to the accounts filed at the docket: Any party expressing one or more objections to one or more of the accounts shall serve his or her discovery requests upon counsel for the estate and related trusts no later than June 13, 2005. Past discovery requests that have not been answered shall be served again. Copies of all discovery requests shall be sent to the Auditor and docketed of record with the Clerk of the Orphans' Court. The Estate and related trusts shall file a response to the requested discovery no later than July 13, 2005, and any discovery that is not subject to an objection shall be provided by July 28, 2005. All objections to the discovery shall be copied to the Auditor and docketed of record with the Clerk of the Orphans' Court, and shall be supported with a brief setting forth the legal authorities supporting the objections to the discovery. Any response that the requested discovery has been previously provided shall specifically state the time, manner and context of the previous delivery. A party seeking discovery that is resisted by the estate or trusts shall file a brief with legal authorities in support of the requested discovery by August 27, 2005. This brief shall be served upon the Auditor as well as all other parties.30 Meanwhile, Robert M. Mumma, II, filed a "Request for Order That Estate Has Waived Its Right To Contest a Disclaimer Filed and Revoked or, Alternatively, Request for Immediate Hearing To Determine Whether the Estate Has Waived Its Right," on April 20, 2005.31 By order of court dated April 22, 2005, this question was included among the issues to be reviewed by the auditor in the course of his duties relating to the objections to the accounts.32 This interlocutory order was apparently the subject of an appeal by Robert M. Mumma, so Order of Court, May 19, 2005. 31 Request for Order That Estate Has Waived Its Right To Contest a Disclaimer Filed and Revoked or, Alternatively, Request for Immediate Hearing To Determine Whether the Estate Has Waived Its Right, filed April 20, 2005. 32 Order of Court, filed April 22, 2005. II,33 and, to that extent that it was, the appeal remains pending in the Superior Court at No. 856 MDA 2005. On April 27, 2005, Robert M. Mumma, II, filed a "Motion for Recusal of Judge Due to Appearance of Impropriety." 34 The motion, in its entirety, read as follows: AND NOW, comes the Petitioner, Robert M. Mumma II, pro se, and files the within Request for Recusal of Judge Wesley Oler of the Cumberland County Court of Common Pleas in the above-noted matter due to an appearance of impropriety and in support thereof avers the following: 1. Petitioner is Robert M. Mumma, an adult individual, acting pro se. 2. Petitioner is a beneficiary of the Estate of his late father, Robert M. Mumma. 3. Recently, on April 18, 2005, during a hearing in the matter of Mumma, et. al. v. Estate of Mumma, et . al. Defendants proffered testimony of Joseph O'Connor, Esquire, of the Morgan, Lewis & Bockium law firm. 4. During the hearing Mr. O'Connor testified to the fact that he is and has been lead counsel for the Estate of Robert M. Mumma. 5. At one point during the witness's testimony, Judge Oler inquired of him whether he was the same attorney who wrote the will of the Judge's mother, to which Mr. O'Connor replied in the affirmative. 6. After that response, counsel for Robert M. Mumma II indicated that he believed that an appearance of impropriety existed. 7. Judge Oler then chose to recuse himself from the case due to the appearance of impropriety and ordered the case be reassigned to another judge of Cumberland County. 8. In this Estate case, Judge Oler has been assigned many of the recent motions, petitions and hearings. 9. Mr. O'Connor may be a witness in various proceedings in this Estate case as lead counsel for the Estate. 10. The Estate has been requested for many years to allow Robert M. Mumma II the opportunity to review records of the Estate, to which he is entitled as a beneficiary of the Estate, but counsel for the Estate, including Mr. O'Connor, has refused Robert M. Mumma that right. 11. Due to Mr. O'Connor's intimate involvement with this Estate as well as his professional relationship with members of the Judge's family an appearance of impropriety exists. WHEREFORE, Robert M. Mumma II respectfully requests the Honorable Judge Oler to recuse himself from hearing any matters in the Estate due to the existence of an appearance of impropriety in that lead counsel for the Estate has had a professional relationship with members of the Judge's family and Robert M. 3s Notice of Appeal, filed May 19, 2005. 3a Motion for Recusal of Judge Due to Appearance of Impropriety, filed April 27, 2005. Mumma II respectfully requests the Estate be assigned to another Judge of the Cumberland County Court of Common Pleas.ss A hearing on this motion was held by the court on August 29, 2005. The evidence at the hearing indicated that in another of Mr. Mumma's cases the court had chosen to recuse itself when it realized that a witness who was directly testifying before it-Joseph A. O'Connor, Jr., Esq., of the Philadelphia law firm of Morgan, Lewis &Bockius-had been the scrivener of the will of the court's mother.36 The basis of the position of Mr. Mumma in the present case was evidenced in the following excerpt from the transcript of the hearing on August 29, 2005: THE COURT: ...You have referred to the closeness of the Oler family with Morgan, Lewis &Bockius, you need to be very specific as to what you are ta[l]king about. My recollection is my father was in the firm of Morgan, Lewis &Bockius and that he retired in the 1970s. Apparently, Joseph A. O'Connor, Jr., who was with Morgan, Lewis &Bockius, wrote my mother's will, which has since been probated following her death. The firm of Morgan, Lewis &Bockius is not the attorney for the estate. Is there something more that you think should be placed on the record with regard to my association with Morgan, Lewis &Bockius such as it is? MR. MUMMA: I think that relationship is enough, Your Honor. We are talking about the reliability of your father's law partners. It is his law firm and his partners that are here taking my assets and distributing them to my father's estate. I claim it is a continuing criminal conspiracy, and I don't think I am going to get an impartial hearing in these issues because of the closeness of the relationship with Morgan, Lewis & Bockius....37 **** ss Motion for Recusal of Judge Due to Appearance of Impropriety, filed April 27, 2005. sb N.T. 5, Hearing, August 29, 2005. 37 N.T. 6-7, Hearing, August 29, 2005. ... Mr. O'Connor is going to be on that stand and that will be at the end of the day and it will all be for [naught]. Now the time to do this is now. THE COURT: Why would he be on the stand in my courtroom? MR. MUMMA: Well, I guess we are assuming then that whatever Mr. Andrews [the auditor] says is going to be gospel and it will never be able to be challenged. THE COURT: No, we are assuming that the record will be made in front of Mr. Andrews, not in front of me. MR. MUMMA: That is hardly due process. I am entitled to my day in front of a judge, he wasn't elected judge.38 At the conclusion of the hearing, the court issued the following order, from which Mr. Mumma has appealed: AND NOW, this 29th day of August, 2005, upon consideration of Petitioner's Motion for Recusal of Judge Due to Appearance of Impropriety, and following a hearing, the motion is denied without prejudice to Petitioner's right to submit a new motion in the event that the record as it develops would warrant the same.39 The court's explanation to Mr. Mumma of the order, and his reaction, were as follows: THE COURT: ... So, Mr. Mumma, I have denied your motion at this time. If as the record transpires it seems to me that there would be a conflict or the appearance of a conflict on my part, obviously, I will consider it in a motion. MR. MUMMA: In my perspective, Your Honor, I have been thrown out of court, that is exactly what you are doing. I am now in the hands of Mr. Andrews, who is going to do whatever he is told to, and this Court is denying me due process. I have asked that since you have thrown me out of court that I be able to appeal this issue. 38 N.T. 8, Hearing, August 29, 2005. 39 N.T. 9, Hearing, August 29, 2005; Order of Court, August 29, 2005. THE COURT: No, you may not; and you have not been thrown out of court, and that is a ridiculous statement. MR. MUMMA: It is not a ridiculous statement.4o Mr. Mumma filed his appeal from the order of the court denying his recusal motion on September 15, 2005.41 ao N.T. 9-10, Hearing, August 29, 2005. a' Notice of Appeal, filed September 15, 2005. IN RE: THE ESTATE OF : IN THE COURT OF COMMON PLEAS OF ROBERT M. MUMMA, CUMBERLAND COUNTY, PENNSYLVANIA DECEASED ORPHANS' COURT DIVISION NO. 21-1986-398 IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., November 8, 2006. In this decedent's estate case which remains unsettled after more than twenty years, ~ a pro se litigant has filed the latest in a series of appeals from non- final orders of this court.2 The subject of the instant appeal is an interlocutory order striking a lis pendens which the litigant had filed.3 This is the fourth case in which the litigant has attempted to affect the property in question with a lis pendens.4 The present appeal was filed without a determination by this court of finality with respect to the order, pursuant to Pennsylvania Rule of Appellate ' Letters testamentary were granted on June 5, 1986. z Notice of Appeal, filed October 6, 2006; Order of Court, September 5, 2006. Although issued on September 5, 2006, the order appealed from was entered on the docket on September 6, 2006. See Nos. 856 MDA 2005 and 1546 MDA 2005 (Pennsylvania Superior Court). s Order of Court, September 5, 2006. ' Estate of Robert M. Mumma's Motion To Strike Lis Pendens, para. 9, filed May 5, 2006; Robert M. Mumma, II, Exhibit 1, Hearing, August 31, 2006 (answer to motion to strike lis pendens). Although the court is reluctant to use the word litigious, it can be said that Appellant Mumma is far from a novice in this county with respect to litigation. See, e.g., Mann Realty Associates v. Pennsy Supply, Inc., OS-655 Civil Term (Ct. Com. Pl. Cumberland 2005); Mumma v. CRH, Inc., 99-1546 Civil Term (Ct. Com. Pl. Cumberland 1999); Mumma v. Pennsy Supply, Inc., 2765 Equity 1999 (Ct. Com. PI. Cumberland 1999); Mumma v. G-A-T Distribution Corp., 94-0423 Civil Term (Ct. Com. P1. Cumberland 1994); Mumma v. Mumma, 84 Equity 1990 (Ct. Com. Pl. Cumberland 1990); Mumma v. Nine Ninety-Nine, Inc., 15 Equity 1990 (Ct. Com. Pl. Cumberland 1990); Mumma v. Nine Nine-Nine, Inc., 14 Equity 1990 (Ct. Com. Pl. Cumberland 1990); Mumma v. Mumma, 66 Equity 1988 (Ct. Com. P1. Cumberland 1988). Procedure 341(c).5 Nor did this court amend the order to facilitate an immediate appeal pursuant to Section 702(b) of the Judicial Code.6 The issues on the litigant's appeal have been expressed in a statement of matters complained of on appeal as follows: 1. Does an Order of the Court that strikes a lis pendens "notice [sic] to the world that there is no longer a valid claim on the title" to the property, as the Superior Court held in Janus Management Services, Inc. v. Schlessinger, 810 A.2d 637 (Pa. Super. 2002)? 2. Is an Order that determines that there is no longer a valid claim on the title to the property a final order within the meaning of Rule 341 of the Rules of Appellate Procedure? 3. Is an Order that determines that there is no longer a valid claim on the title to the property a collateral order within the meaning of Rule 313(b) of the Rules of Appellate Procedure? 4. Does a party permanently lose any rights if that party fails to or is prohibited from appealing an Order striking a lis pendens entered by that party, as the Superior Court said in Janus Management Services, Inc. v. Schlessinger, 8l0 A.2d 637 (Pa. Super. 2002)? 4. [sic] Does an order lifing a lis pendens fail to fix any rights, duties, or liabilities between the parties, does it put no one out of court, and does it fail to terminate the underlying litigation, as the Supreme Court held in United States National Bank of Johnstown v. Johnson, 487 A.2d 809 (Pa. 1985)? 5. Can the Opinions of the Supreme Court in United States National Bank of Johnstown v. Johnson, 487 A.2d 809 (Pa. 1985) and the Superior Court in Janus Management Services, Inc. v. Schlessinger, 810 A.2d 637 (Pa. Super. 2002) be reconciled?' This opinion in support of the order appealed from is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS By way of background, it may be noted that the litigant, Robert M. Mumma, II, is one of the children of the decedent in the above-captioned case, s See Order of Court, October 11, 2006 (denying motion for determination of finality with respect to order striking lis pendens). 6 See Order of Court, October 11, 2006 (denying motion for amendment of order to indicate that immediate appeal may materially advance ultimate termination of matter); Act of July 9, 1976, P.L. 586, §2, as amended, 42 Pa. C.S. §702(b). ~ Statement of Matters Complained of, filed October 27, 2006. Robert M. Mumma,g and one of the grandchildren of Robert M. Mumma's father, Walter M. Mumma, also deceased.9 The early background of the present case has been well summarized by the Honorable George E. Hoffer, President Judge, in an opinion of this court in 2000. On January 6, 1999, Robert M. Mumma II ...petitioned this court for an accounting of the estate of his father, Robert M. Mumma Sr.... ,who died testate on April 12, 1986. The decedent's will and the codicil thereto were probated on June 5, 1986. The will appoints Mrs. Barbara McK. Mumma, decedent's widow, and Lisa M. Morgan ... as executrices thereof and as trustees of a Marital Trust and a Residuary Trust created thereunder .... Under the will, the presumptive remaindermen of the Trusts, if they survive Mrs. Mumma, are the decedent's children: petitioner Robert M. Mumma II, Linda M. Mumma, Barbara M. Mumma and Mrs. Morgan. The decedent bequeathed to his testamentary trustees an amount equal to fifty percent of his total gross estate to be held in trust exclusively for the benefit of his wife during her lifetime, the principal to be distributed to the decedent's children upon her death. In addition, the decedent gave his residuary estate to his testamentary trustees to be held in trust exclusively for the benefit of his wife during her lifetime, the principal to be paid to the decedent's children upon her death. [Decedent's widow and Mrs. Morgan) filed interim accounts of their acts and transactions as executrices and as trustees on August 9, 1991... . [Robert M. Mumma, II,] disclaimed his interest under the will in 1987. In 1989, [former President Judge Harold E. Sheely ofJ this court granted petitioner's motion to revoke his disclaimer. [Robert M. Frey, Esq.], who was appointed guardian ad litem for the minor persons interested in the Estate in 1988, appealed the revocation of the disclaimer. The Superior Court ruled that Mr. Frey's representation of the estate with respect to the revocation of the disclaimer was beyond the scope of his limited appointment and therefore he lacked standing to appeal. [Robert M. Mumma, II, eventually] ask[ed] for a complete accounting of the Estate, including an accounting of the Trusts in which [he] claim[ed] 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 of [his] disclaimer ha[d] not been fully litigated....10 s N.T. 8, 14-15, Hearing, August 31, 2006. 9 See N.T. 14, Hearing, August 31, 2006. 10 In re Estate of Robert M. Mumma, No. 21-86-398, slip op. at 1-3 (Ct. Com. Pl. Cumberland February 23, 2000) (Hoffer, P.J.) (citations omitted). This position of the executrices/trustees was rejected by the court, and an accounting by the executrices/trustees was ordered on February 23, 2000.11 Thereafter, a procedural morass developed as accounts, objections to accounts, supplemental objections to accounts, motions to quash subpoenas, motions of counsel to withdraw, motions to require notice of property dispositions, petitions to remove executrices/trustees, exceptions to orders, motions to stay, petitions for injunctions, motions to compel discovery, etc., were filed. Among these filings was a motion entitled "Objector's Motion To Compel Discovery," was a 74-page document filed by Robert M. Mumma, II, entitled: SUPPLEMENTAL CONSOLIDATED STATEMENT OF OBJECTIONS TO THE ACCOUNT OF BARBARA K. McK. MUMMA AND LISA M. MORGAN AS CO-EXECUTORS OF THE ESTATE OF ROBERT M. MUMMA, DECEASED AND TO THE FIRST, SECOND, THIRD AND FOURTH INTERIM ACCOUTINGS OF BARBARA K. McK. MUMMA AND LISA M. MORGAN AS CO-TRUSTEES OF THE MARITAL TRUST UNDER WILL THE WILL [sic] OF ROBERT M. MUMMA, DECEASED'Z These objections are described in the document by the following headings: The Marital Trust Appears To Be Overfunded. The Estate Account As Filed Fails To Allocate Funds to the Marital Trust in Accordance with the Express Direction in Decedent's Will The Account As Filed Fails To Adequately Explain or Document Significant Changes in Certain Major Investment Holdings of the Estate The Co-Executrices of the Estate Failed To Preserve Assets Contained in Decedent's Safety Deposit Box 3332 at the Dauphin Deposit Bank at the Time of His Death and/or Failed to Adequately Investigate the Disappearance of Decedent's Assets Which Were Contained in this Safety Deposit Box The Number of Shares of Pennsylvania Supply Company Stock (700) Listed on the Account Is Overstated and/or Has Been Overvalued Liquidation of the Pennsylvania Supply Company Stock Was Contrary to the Express Wishes of the Decedent and Was Unnecessary ~~ In re Estate of Robert M. Mumma, No. 21-86-398 (Ct. Com. Pl. Cumberland February 23, 2000) (Hoffer, P.J.), appeal quashed, 776 A.2d 300 (2001) (table decision). 'z Supplemental Consolidated Statement of Objections to the Account of Barbara K. McK. Mumma and Lisa M. Morgan as Co-Executors of the Estate of Robert M. Mumma, Deceased and to the First, Second, Third and Fourth Interim Accountings of Barbara K. McK. Mumma and Lisa M. Morgan as Co-Trustees of the Marital Trust Under Will the Will of Robert M. Mumma, Deceased, filed May 27, 2004. 4 The Co-Executrices of the Estate Refused To Consider Any Other Offers for the Sale of the Pennsylvania Supply Company Assets Which Were Sold Outside of the Family to CRH, LPC Despite the Fact That Objector Had Made a Higher Offer for These Same Assets Improper Accounting for Fulton Bank Building in Lemoyne, PA Improper Accounting of Stock Distributions to Barbara McK. Mumma Improper Accounting for/Distribution of Estate Income to Barbara McK. Mumma Objection to Valuation of Leadville, Colorado Property Objection to Valuation of Bender Property in Mount Holly Springs, Pennsylvania Objection to Valuation of Grove Property in Mount Holly Springs, Pennsylvania Objection to Valuation of Lebanon Rock, Inc. Stock Failure of Estate to Perform Under the Shareholders Agreement for High-Spec, Inc. Stock Objection to Value of High-Spec, Inc. Stock Objections to the Attorney Fees Paid by Decedent's Estate and the Marital Trust to Morgan Lewis and Bockius Objections to the Attorney Fees Paid by the Marital Trust to Stradley, Ronon, Stevens & Young Objection to Jurisdiction Incorporation of Prior Objections Filed by Charles Shields Objections Based on Receipts of Principal'3 Disbursements of Principal Distribution of Principal to Beneficiaries Changes in Princi[pa]l Payments of Administration Expenses Distribution of Income to Beneficiaries Improper Distribution of Family Assets Impermissible Withdrawals Failure To Maximize Asset Values Acts of Corporate Self-Dealingla i3 This and the objections which follow were contained in an earlier filing of objections. 14 Supplemental Consolidated Statement of Objections to the Account of Barbara K. McK. Mumma and Lisa M. Morgan as Co-Executors of the Estate of Robert M. Mumma, Deceased and to the First, Second, Third and Fourth Interim Accountings of Barbara K. McK. Mumma and Lisa The section of the objections referencing "overfunding" read as follows: 1. The Marital Trust Appears To Be Overfunded. The Estate Account as Filed Fails to Allocate Funds to the Marital Trust in Accordance with the Express Direction in Decedent's Will A.) Under Item Seventh of Decedent's Will the amount to be awarded to the Marital Trust is a standard pecuniary formula gift: SEVENTH.• If my wife, BARBARA McK. MUMMA, survives me, I give and bequeath to the trustees hereinafter named, an amount equal to fifty (SO%) percent of my total gross estate as finally determined for Federal Estate Tax purposes, taking into account and including therein, for computation purposes, my undivided interest in the value of all my interests in property which pass or which or have passed to my wife under other provisions of this Will, or otherwise than under this Will, but only to the extent that such interests are, for purposes of the Federal Estate Tax, included in determining my gross estate and allowed as a marital deduction. B.) The Account as filed fails to compute the amount to be awarded to the Marital Trust with reference to the Federal Estate Tax Return, nor does the Account give credit (for computation purposes) against the amount to be awarded to the Marital Trust for the value of the joint marital and other property which had passed to BARBARA McK. MUMMA under other provisions of the Will or outside of probate (which property was required to be included in the Federal Estate Tax return as filed). A copy of the relevant portions of Federal Estate Return Form 706 as filed are attached hereto as Exhibit "A". Total Gross Estate (Federal) $16,645,786.00 'h of Total Gross Fed Estate $8,322,893.00 Less: Schedule M Spousal Joint & Other Property Passing Outside Probate (861,018.00) Total Amount Which Should Have Been Awarded to Marital Trust 7,461,875.00 C.) Under the Account as filed, the following principal amounts were actually distributed to the Marital Trust (See Exhibit "B" attached hereto): 1986 - 1987 (Vol 1, Page 60) $6,289,808.65 M. Morgan as Co-Trustees of the Marital Trust Under Will the Will [sic] of Robert M. Mumma, Deceased, filed May 27, 2004. 2001 - 2002 (Vol 4, Sch E, Page 1) 2,358,359.85 Total Principal Distributions To Marital Trust $8,648,168,50 D.) The Marital Trust is over funded by $1,186,293.50 calculated as follows: Actual Principal Distributions $8,648,168.50 Required Under Will (7,461,875.00) Marital Trust Overfunded by: 1,186,293.50 These overfunding amounts may need to be adjusted as Objector was not able to determine if the adjustments to valuations were made by the Internal Revenue Service in time for filing of these objections. If any asset valuation adjustments occurred on the federal estate tax return, then the carrying values of those affected assets should have had corresponding adjustments on the Account, as the Will directs that the adjusted amounts for federal estate tax purposes are to be used as the basis for determining the gift to the Marital Trust. E.) Objector believes that the Marital Trust maybe overfunded by additional amounts depending on adjustments to the Estate Account upon this Court rulings on certain of Objector's other objections set forth below.15 In an attempt to bring this matter, which commenced in 1986, under control, the undersigned judge appointed an auditor in the person of the distinguished Cumberland County attorney Taylor P. Andrews, Esq.16 The order appointing Mr. Andrews was dated January 6, 2005.17 Within several weeks of the appointment, Robert M. Mumma, II, filed a motion to have the auditor replaced.18 Following a hearing on March 11, 2005, at which a record was made on this motion, it was denied as devoid of merit.19 An oral motion made at this proceeding by Robert M. Mumma, II, that the court also 15 Id., at 2-4. 16 Order of Court, January 6, 2005. "Order of Court, January 6, 2005. The issues to be considered by the auditor include (a) whether the conduct of the executrices/trustees warrants their removal and (b) whether the validity of the revocation of disclaimer by Robert M. Mumma, II, can continue to be litigated. Orders of Court, March 11, 2005, April 22, 2005. 'g Motion To Recuse/Remove Attorney Taylor P. Andrews and To Appoint a New Auditor, filed January 31, 2005. 19 Order of Court, March 11, 2005. recuse itself from further participation in the case was similarly denied.20 Another oral motion made at the proceeding by Robert M. Mumma, II - for a jury trial - was also denied.21 Another oral motion made by Robert M. Mumma, II, at the proceeding - for a stay pending completion of discovery -was also denied,22 and a formal motion to this effect was later denied by order dated March 30, 2005 (docketed March 31, 2005).23 On March 24, 2005, Robert M. Mumma, II, filed a "Request for Jury Trial on Objections to Inventory and Accounting Pursuant to PEF Code 777(a)." A rule was issued on the request for a jury trial on March 30, 2005,24 and a response to the request was filed by Decedent's widow and Mrs. Morgan on April 8, 2005.25 This response, inter alia, denied the existence in this case of any unresolved material dispute as to the decedent's title to property.26 The request for a jury trial was denied, for the second time, by order dated April 21, 2005 (docketed Apri125, 2005).27 This order was appealed by Robert M. Mumma, II,28 and subsequently affirmed by the Pennsylvania Superior Court.29 On April 4, 2005, the court held a conference on the motion to compel discovery that had been filed by Robert M. Mumma, II. The on-the-record conference, which the auditor attended and participated in, resulted in the following order of court: 20 Order of Court, March 11, 2005. Z' Order of Court, March 11, 2005. zz Order of Court, March 11, 2005. 23 Order of Court, March 30, 2005. 2a Order of Court, March 30, 2005. zs Response of Barbara McK. Mumma and Lisa M. Morgan to Request of Robert M. Mumma, II for a Jury Trial Pursuant to 20 Pa. C.S. §777(a), filed April 8, 2005, at 2. zb Response of Barbara McK. Mumma and Lisa M. Morgan to Request of Robert M. Mumma, II for a Jury Trial Pursuant to 20 Pa. C.S. §777(a), filed April 8, 2005, at 2. Z' Order of Court, Apri121, 2005. 2a Notice of Appeal, filed May 19, 2005. z9 Order of Court, March 7, 2006 (No. 856 MDA 2005). AND NOW, this 4th day of April, 2005, upon consideration of the Motion To Compel Discovery filed on behalf of Robert M. Mumma, II, ...and following a conference ... in which Brady L. Green, Esquire, Michael J. Riffitts, Esquire, and No V. Otto, III, Esquire, represented Barbara McK. Mumma and Lisa M. Morgan, Ralph A. Jacobs, Esquire, represented Barbara Mann Mumma, and Robert M. Mumma, II, appeared pro se, it is ordered and directed that the executrixes/trustees, within 20 days of today's date, file responses to the Objector's First Set of Request for Production of Documents to the Executrixes/Trustees, the Objector's First Set of Interrogatories to Executrixes, Robert M. Mumma, II's, Second Set of Requests for Production of Documents to the Executrixes/Trustees, and Robert M. Mumma, II's, Third Set of Requests for Production of Documents to the Executrixes/Trustees, and that the auditor, within 45 days of today's date, hold apre-hearing conference among the interested parties for purposes of recommending an order with respect to any further discovery in the case and with respect to any issues presented by the responses of the executrixes/trustees to the discovery requests.so Shortly thereafter, Robert M. Mumma, II, filed a "Motion To Compel Inspection of All Books and Records." 31 As had been done with his earlier discovery motion, this matter was referred to the auditor in the first instance for purposes of proposing a recommended order.32 This order, dated April 29, 2005 (docketed April 29, 2005), referring the motion to the auditor for review, was appealed by Robert M. Mumma, II,33 and was subsequently affirmed by the Pennsylvania Superior Court.34 Meanwhile, Robert M. Mumma, II, filed a "Request for Order That Estate Has Waived Its Right To Contest a Disclaimer Filed and Revoked or, Alternatively, Request for Immediate Hearing To Determine Whether the Estate Has Waived Its Right," on April 20, 2005.35 By order of court dated April 22, so Order of Court, Apri14, 2005. 31 Motion To Compel Inspection of All Books and Records, filed Apri122, 2005. 3z Order of Court, April 29, 2005. 33 Notice of Appeal, filed May 19, 2005. sa Order of Court, March 7, 2006 (No. 856 MDA 2005). ss Request for Order That Estate Has Waived Its Right To Contest a Disclaimer Filed and Revoked or, Alternatively, Request for Immediate Hearing To Determine Whether the Estate Has Waived Its Right, filed April 20, 2005. 2005, this question was included among the issues to be reviewed by the auditor in the course of his duties relating to the objections to the accounts.36 On April 27, 2005, Robert M. Mumma, II, filed a "Motion for Recusal of Judge Due to Appearance of Impropriety." 37 Following a hearing, the court denied the motion for recusa1.38 Robert M. Mumma, II, filed an appeal from the order of the court denying his recusal motion on September 15, 2005,39 and this interlocutory appeal was subsequently quashed by the Pennsylvania Superior C OUrt, 40 On February 14, 2006, Robert M. Mumma, II, filed a "Praecipe To Attach Deed and Index As Lis Pendens."41 The property to which the lis pendens pertained was the same property as to which Robert M. Mumma, II, had, in at least three other lawsuits in which he was plaintiff, sought unsuccessfully to affect by filing lis pendens notices.42 The property was situated in Silver Spring Township, Cumberland County, Pennsylvania, and had been sold by decedent and others in 1961 to a Pennsylvania corporation known as Pennsy Supply Inc.43 On May 5, 2006, a motion to strike the lis pendens was filed herein by the executrices of the decedent's estate.44 The motion to strike noted, inter alia, that "[t]he property referenced in the Deed attached to Robert M. Mumma, II's lis 36 Order of Court, filed Apri122, 2005. 37 Motion for Recusal of Judge Due to Appearance of Impropriety, filed Apri127, 2005. 38 Order of Court, August 29, 2005. s9 Notice of Appeal, filed September 15, 2005. ao Order of Court, October 28, 2005 (No. 1546 MDA 2005). a~ Praecipe To Attach Deed and Index As Lis Pendens, filed February 14, 2006. az Estate of Robert M. Mumma's Motion To Strike Lis Pendens, para.9, filed May 5, 2006; Robert M. Mumma, II, Exhibit 1, Hearing, August 31, 2006 (answer to motion to strike lis pendens, para. 9 admitted). See Mann Realty Associates v. Pennsy Supply, Inc., OS-655 Civil Term (Ct. Com. Pl. Cumberland 2005); Mumma v. CRH, Inc., 99-1546 Civil Term (Ct. Com. P1. Cumberland 1999); Mumma v. Pennsy Supply, Inc., 2765 Equity 1999 (Ct. Com. Pl. Cumberland 1999). a3 Praecipe To Attach Deed and Index As Lis Pendens, filed February 14, 2006. as Estate of Robert M. Mumma's Motion To Strike Lis Pendens, filed May 5, 2006. pendens bears absolutely no relationship to the issues involved in this litigation,"as In his answer to the motion to strike, Robert M. Mumma, II, asserted that the estate had "inventoryed [sic] assets owned by Robert M. Mumma, II[,] and not [his father, the decedent, Robert M. Mumma]."46 A hearing on the motion to strike the lis pendens was held by this court on August 31, 2006. At the hearing, Robert M. Mumma, II, introduced, inter alia, the deed which had been attached to his lis pendens praecipe.47 This 1961 deed transferred title to the property in question from the decedent, the father of Robert M. Mumma, II, and others, to a corporation known as Pennsy Supply Inc.;ag "[t]here are no deeds of record transferring that property to any other entity or person," according to Robert M. Mumma, II.49 Since its receipt of title to the property, Pennsy Supply Inc., has subdivided the property and sold lots off it, Robert M. Mumma, II, stated.so At the conclusion of the hearing, counsel for the estate argued that MR. FALLER: ... [T]he one thing that was admitted is [that] Mr. Mumma has filed the lis pendens against this piece of property three times in the past, and Your Honor has stricken it all three times. There is no basis to file the lis pendens because there is no claim, there has been no quiet title action, anything of that nature filed against this property ....s' Mr. Mumma's argument, which included a number of allegations not supported by evidence at the hearing, was as follows: as Estate of Robert M. Mumma's Motion To Strike Lis Pendens, para. 7, filed May 5, 2006. ab Robert M. Mumma, II, Exhibit 1, Hearing, August 31, 2006 (answer to motion to strike lis pendens). a' Robert M. Mumma, II, Exhibit 3, Hearing, August 31, 2006) (deed from Robert M. Mumma et al. to Pennsy Supply Inc., dated August 9, 1961). as Robert M. Mumma, II, Exhibit 3, Hearing, August 31, 2006 (deed from Robert M. Mumma et al. to Pennsylvania Supply Inc., dated August 9, 1961). a9 N.T. 14, Hearing, August 31, 2006. so N.T. 19, Robert M. Mumma, II, Exhibit 1, Hearing, August 31, 2006 (answer to motion to strike lis pendens). MR. MUMMA: ...There is an underlying dispute here, it revolves around the estate and what did my father own. He clearly did not own Pennsy Supply or this quarry. So the estate through their [machination] of the records and stealing the real records from the safety deposit box, have allowed people to believe that this quarry was really owned by a company named Pennsy Supply, Inc., which is a derivative of a company called 1001 formed in October 9th of 1981. As you can see from the deeds that I provided, the transfer was clearly from Highspire Sand [a]nd Gravel through the liquidating trustees to a Pennsylvania Supply Company according to the bank's records and a Pennsy Supply Inc., according to the deed that was filed. Why that discrepancy? I don't know. But it is clearly Pennsylvania Supply Inc., formed in November of 1958 as Fiala Crushed Stone. So now we have two different parties claiming title to the same piece of property. It is clear that the only deed that has any documentary stamps on it is the original. There is no other deed from that company to any other company. In the year 2000, after I filed a lawsuit in your court challenging-with my stock certificate, challenging the ownership of the stock, Mr. Ernico on behalf of Pennsy Supply, Inc., files a corrective deed and- THE COURT: We are getting into a lot of things that I don't know if they are of record or not. You are welcome to argue what you like, but the only things I can take into consideration in disposing of this motion is what is on the record in this case and whatever has been presented at this hearing; You are welcome to argue as you like, but I am just saying that I am limited to the record that exists in the case. MR. MUMMA: I am satisfied with that record, because there is nothing in that record that indicates that anybody other than the beneficiary of my grandfather's estate owned that properly. In 1963, the beneficiaries of my grandfather's estate did own the property. There is nothing that has happened, nothing that has transpired anywhere to take that away from us, other than fraudulent actions when they put it into the estate and then the estate sold it to a third party. That is why I am challenging the estate....sz Following argument on the issue of whether the lis pendens filed by Robert M. Mumma, II, in this case should be stricken, the court took the matter under 51 N.T. 2l, Hearing, August 31, 2006. sz N.T. 22-23, Hearing, August 31, 2006. advisement.53 On September 5, 2006, the court issued the order striking the lis pendens, from which Robert M. Mumma, II, has appealed.sa ss Order of Court, August 31, 2006. sa Order of Court, September 5, 2006. ORPHANS' COURT DIVISION COURT OF COMMON PLEAS OF In Re: ROBERT M MUMMA CUMBERLAND COUNTY PENNSYLVANIA NO. 12-86-0398 CERTIFICATE OF SERVICE OF ORDER ORDER DATE: JUDGE'S INITIALS: TIME STAMP DATE: 12-09-08 IN RE: OPINION SERVICE TO: JOSEPH D. BUCKLY ROBERT M. MUMMA II ROBERT M. MUMMA II ROBERT M. MUMMA II GEORGE B. BALLER JR BRADY K. GREEN METHOD OF MAILING: ENVELOPES PROVIDED BY: ® USPS ^ RRR ^ HAND DELIVERED ^ OTHER MAILED: 12/10/08 ^ PETITIONER ® JUDGE ^ CLERK OF ORPHANS COURT SERVICE TO: LINDA MUMMA ROTH RALPH A. JACOBS METHOD OF MAILING: ^ USPS ^ RRR ^ HAND DELIVERED ^ OTHER MAILED: 12/10/08 ENVELOPES PROVIDED BY: ^ PETITIONER ^ JUDGE ^ CLERK OF ORPHANS COURT ~; ~ ~ '~ eputy Clerk of Orphans' Court