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HomeMy WebLinkAbout11-30-09.r, .f. r'r^ J ..~ i k' ~ '~ -u ZDD9 NOV 30 PM 3~ 39 (ORPHAN'S (Ol1RT IN RE: ESTATE O~~eFR~uv~ ~~~ PA• IN THE COURT OF COMMON PLEAS ROBERT M. MUMMA OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION NO. 21-86-398 PRELIMINARY OBJECTIONS OF OBJECTOR ROBERT M. MUMMA II FILED IN RESPONSE TO THE EXECUTRICES' MOTION TO DISMISS OBJECTIONS TO: LISA M. MORGAN and BARBARA McK. MUMMA, CO-EXECUTRICES AND CO-TRUSTEES YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED PRELIMINARY OBJECTIONS WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. AND NOW, comes Robert M. Mumma, II, pro se, an Objector, pursuant to Pa.O.C.R. 3.1 and Pa.R.C.P. 1028(a), who files the following Preliminary Objections to "Bazbaza McK. Mumma and Lisa M. Morgan's Motion to Dismiss Objections," and who states as follows: I. The undersigned Objector is Robert M. Mumma, II, an adult individual, pro se, who is a beneficiary of the above-captioned, Estate and the Trusts created under the Will of the Decedent. 2. The undersigned Objector is also a trustee of contingent beneficiaries of the above- captioned Estate and Trusts. ~~ 3. In a Petition for Appointment of Auditor filed January 5, 2005, the Executrixes of the above-captioned Estate sought the appointment of an Auditor "to pass upon the objections" that were filed which the Executrixes averred had "raise[d] questions of fact." 4. In an Order dated January 6, 2005, Judge Oler appointed Taylor Andrews, Esquire as Auditor in the above-captioned Estate. Following a heazing held on August 18, 2008, Judge Oler issued an Order dated September 19, 2008 that vacated the appointment of Taylor Andrews, Esquire as Auditor and appointed Joseph D. Buckley, Esquire in his stead. 5. Attorney Buckley conducted hearings in this matter in April 2009, in June 2009, in August 2009, and in October 2009. Additional hearings aze scheduled for December 14, 15, 16, 17, and 18, 2009, with potential additional dates to follow in 2010. 6. Prior to the initial hearings in Apri12009, the Auditor issued a Notice of Auditor's Heazing dated Januazy 20, 2009 stating in part: "The Party filing the objections shall within ten (10) days of this notice provide the auditor and counsel for the estate the specific issues to be resolved at the heazing." 7. Thereafter, the Objector Bazbaza Mann Mumma (through counsel) submitted a three (3) page letter dated February 9, 2009 to the Auditor with seven (7) enumerated issues corresponding to the objections which she had previously filed. 8. Thereafter, the undersigned Objector submitted a seven (7) page letter dated February 10, 2009 to the Auditor with forty-two (42) enumerated issues conesponding to the objections which were previously filed (i.e., objections filed in October 1991 by Attorney Shields and Attorney Costopoulos, objections filed in May 2004 by Miller Lipsitt, LLC, and supplemental objections filed pro se in January 2008). 9. The undersigned Objector's letter dated February 10, 2009 to the Auditor prefaced the enumeration of issues with the following: The undersigned hereby incorporates all averments and azguments set forth in the prior filings of record (both in the Estate litigation and in any filings with the Superior Court) which address prior referrals by Judge Oler to the Auditor which are beyond the scope of the original appointment specifically or beyond the scope of an auditor's authority generally. Submission of the instant specification of issues as directed by the Auditor's Notice dated January 20, 2009 should not be deemed or considered as a waiver of any of the aforesaid averments or arguments. In consideration of the foregoing, the undersigned sets forth the following issues: 10. The undersigned Objector's letter dated February 10, 2009 to the Auditor concluded as follows: In addition to those objections of fact listed or incorporated herein, any factual issues contained in the expert reports of either Robert May, Esquire or Jonathan Crist, Esquire aze likewise hereby incorporated herein. Moreover, the undersigned adopts those objections listed in the specification of issues filed by Ralph Jacobs, Esquire on Februazy 9, 2009 on behalf of Bazbaza Mann Mumma. Likewise, the undersigned reserves the right to supplement this list if appropriate in light of any information subsequently received. It should be further noted that no discovery order has yet to be issued subsequent to the Auditor's pre-hearing conference on October 29, 2008. While the Auditor's Notice dated January 20, 2009 indicates that specific issues are to be "resolved" at the hearings in April 2009, at this juncture the discovery issues themselves have yet to be resolved. Auditor's hearings cannot be conducted without completing discovery beforehand. 11. At the close of the hearings in October 2009, counsel for the Co-Executrices advised the Auditor that they would move to dismiss the objections; the Auditor indicated that said Estate counsel should file a written motion to dismiss the objections with the Orphans' Court. Thereafter, said Estate counsel filed a Motion to Dismiss Objections on November 13, 2009. 12. By virtue of the filing of the Motion to Dismiss Objections, the Estate counsel (via the Auditor's ruling) has impermissibly re-assigned the burden of proof: instead of the Executrices being required to establish that their accountings were filed properly, the Estate counsel's filing (via the Auditor's ruling) now forces the Objectors to establish that the accountings were filed improperly. 13. The Executrices' Motion to Dismiss Objections fails to cite any authority upon which it is premised. The said motion does not state that it is authorized by the PEF Code, by the Pennsylvania Orphans' Court Rules, by the local rules of court, or by any other legal authority. Hence, said motion is not authorized prima facie by any statute, rule of court, decisional law, or any other authority. 14. The Executrices' motion seeks to assign the burden of proof upon an objector to an accounting to establish conclusively the propriety of the Estate's accountings and inventories as filed with the Orphans' Court, with said attempted assignment being exacted without citation to any legal authority supporting such an allocation of the burden of proof. 15. However, a beneficiary filing an objection to an accounting is seeking clazification, explanation, and/or justification regarding the propriety of a given transaction or occurrence reflected in the Estate's accountings and inventories, and accordingly it is the Executrices and the Estate counsel who bear the responsibility in the first instance of demonstrating that the accountings and inventories were proper.' 16. As such it is the Executrices and the Estate counsel who aze to be assigned with the burden of proving the propriety, legitimacy, and justifiability of its accountings and inventories, and the Executrices cannot reassign that burden of proof to the Objectors by way of filing a boilerplate Motion to Dismiss Objections which seeks a wholesale dismissal of the issues previously raised and preserved by the Objectors. ' By way of just one (1) example, the Objectors sought to question a real estate transaction involving the sale of a property valued at approximately $900,000 and the manner in which the Executrices had accounted for said transaction; however, the Objectors could not inquire as to the particulars of the real estate transaction and the manner of its accounting without first being provided with copies of the actual settlement documents by the Executrices or by the Estate counsel. The Auditor then admonished the Objectors for not having with them copies of said settlement documents whenever the Objectors had no direct access thereto, yet the Auditor subsequently directed the Executrix to get him a copy of the settlement sheet. (N.T., Vol. XIII, pp. 3041-3053). 17. The Executrices' motion seeks to usurp the role of the Orphans' Court and to interfere with the adjudications, fact-finding, and conclusions of law which the Orphans' Court is duty-bound to render, all by way of the filing of a Motion to Dismiss Objections which seeks a wholesale dismissal of the questions of fact and related issues previously preserved by the Objectors (notwithstanding that the Executrices themselves petitioned for the appointment of an auditor on January 5, 2005 for the express purpose of resolving the objections). 18. The Executrices' Motion to Dismiss Objections did not contain a proposed order or decree in contravention of local rules of court. C.C.O.C.R. 3.2; C.C.R.P. 208.3(a)(3). 19. The Executrices' Motion to Dismiss Objections did not contain a notice to plead. 20. To the best of the knowledge, information, and belief of the undersigned Objector, the Orphans' Court, subsequent to the filing of the Executrices' Motion to Dismiss Objections on November 13, 2009, did not issue any Order, any Rule to Show Cause, or otherwise direct the Objectors how or when to respond to the Executrices' motion. 6 I. MOTION TO DISMISS FOR FAILURE OF A PLEADING TO CONFORM TO LAW OR RULE OF COURT PURSUANT TO Pa.R.C.P. 1028(a)(2). 21. The undersigned Objector hereby incorporates all preceding pazagraphs of his Preliminary Objections as though fully set forth at length herein. 22. The Executrices' Motion to Dismiss cites no legal authority upon which it is premised, while it likewise seeks to reallocate or assign the burden of proof upon the Objectors to demonstrate that the Estate's accountings and inventories were filed properly, and, as such, it is legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(2) and (b). II. MOTION TO DISMISS FOR INSUFFICIENT SPECIFICITY IN A PLEADING PURSUANT TO Pa.R.C.P. 1028(a)(3). 23. The Petitioner hereby incorporates all preceding pazagraphs of his Preliminary Objections as though fully set forth at length herein. 24. The Executrices' Motion to Dismiss Objections fails to plead sufficiently the nature or extent of the legal authority upon which it premises its right to obtain a wholesale dismissal of the objections filed by the Objectors without otherwise demonstrating the propriety or legitimacy of their accountings and inventories, and, as such, said motion is legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(3) and (b). III. MOTION TO DISMISS FOR LEGAL INSUFFICIENCY OF A PLEADING (DEMURRER) PURSUANT TO Pa.R.C.P.1028(a)(4). 25. The Petitioner hereby incorporates all preceding pazagraphs of his Preliminary Objections as though fully set forth at length herein. 26. The Executrices' Motion to Dismiss Objections fails to set forth an appropriate theory of law upon which its seeks to obtain a wholesale dismissal of the objections filed by the Objectors in derogation of the fact that said objections were duly filed in a timely fashion and appropriately preserved questions of fact and related issues regazding the Estate's accountings and inventories, and, as such, it is legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(4) and (b). WHEREFORE, the undersigned Objector respectfully requests that the Orphans' Court SUSTAIN the instant preliminary objections, such that the Objections remain before this Court, and such that the Estate's accountings and inventories aze judicially examined and are properly adjudicated in accordance with the applicable law and rules of court. Respectfully submitted, DATE: November 30, 2009 Robert M. Mumma, II / 840 Market St. -Suite 33333 Lemoyne, PA 17043 (717) 612-9720 PROSE CERTIFICATE OF SERVICE I, Robert M. Mumma, II, pro se, do hereby certify that I caused a copy of the foregoing Preliminary Objections to Executrices' Motion to Dismiss to be served this date by U.S. Mail, first class, postage prepaid, addressed to: Brady Green, Esquire Morgan, Lewis & Bockius, LLP 1701 Market Street Philadelphia, PA 19103-2921 George B. Faller, Jr., Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 Bazbaza Mann Mumma 541 Bridgeview Dr. Lemoyne, PA 19043 Linda Mumma Roth PO Box 480 Mechanicsburg, PA 17055 Joseph D. Buckley, Esquire Court-Appointed Auditor 1237 Holly Pike Carlisle, PA 17013 DATE: November 30, 2009 BY: Robert M. Mumma, II 840 Market St. -Ste. 33333 Lemoyne, PA 17043 717-612-9720 PROSE