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HomeMy WebLinkAbout12-01-09IN RE: ESTATE OF IN THE COURT OF COMMON PLEAS ROBERT M. MUMMA OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION n '~ ~ ~ NO. 21-86-398 ~„~' Q ~~ rte, <' ; ~~ c~, rn ~ -_ _ , _ r \ ~ v«/ ~ ~ r,+~ 1 REQUEST FOR ORDER SCHEDULING BRIEFING AND ARGU~T =.~,- ;~-- - -T w r :n. ~:., ., , , ...:~ ._. . .,.3 cn AND NOW, comes the Objector, Robert M. Mumma, II, pro se, who hereby files the instant Request for an Order Scheduling Briefing and Argument under C.C.R.P. 208.3(a), and states as follows: 1. On November 13, 2009, the Co-Executrices filed a Motion to Dismiss Objections with the Orphans' Court. 2. As indicated by C.C.O.C.R. 3.2-1, the pleading and practice on petitions shall be in accordance with the local rules of civil procedure.1 3. Contrary to C.C.R.P. 208.3(a)(3), the Co-Executrices' Motion to Dismiss Objections did not include a proposed order. 1 The Note to said local Orphan's Court rule further cites to "C. C.R.P. 206-1 to 209-2, inclusive." 1 4. Although the prior practice utilized by the Orphans' Court in the above-captioned Estate litigation was to issue an Order in the nature of a Rule to Show Cause subsequent to the filing of a motion, the Orphans' Court did not issue any Order subsequent to the filing of the Co-Executrices' Motion to Dismiss Objections. 5. On November 30, 2009, the undersigned Objector filed Preliminary Objections to the Co- Executrices' Motion to Dismiss Objections which asserted, inter alia, that: (a) the Co-Executrices' Motion to Dismiss Objections impermissibly sought to re-assign the burden of proof: instead of the Co-Executrices being required to establish that their accountings were filed properly, said motion sought to force the Objectors to establish that the accountings were filed improperly; (b) the Co-Executrices' Motion to Dismiss Objections failed to cite any authority upon which it was premised inasmuch as it did not state that it was authorized by the PEF Code, by the Pennsylvania Orphans' Court Rules, by the local rules of court, or by any other legal authority. As such, said motion is not authorized prima facie by any statute, rule of court, decisional law, or any other authority; (c) a beneficiary filing an objection to an accounting who seeks clarification, explanation, and justification regarding the propriety of a given transaction or occurrence reflected in the Estate's accountings and inventories cannot bear the responsibility in the first instance of demonstrating that the accountings and inventories were filed properly; (d) the Co-Executrices are to be assigned with the burden of proving the propriety, legitimacy, and justifiability of their accountings and inventories, such that the Co-Executrices cannot seek to 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; and, (e) the Co-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 seeking a wholesale dismissal of the questions of fact and related issues previously preserved by the Objectors, even though the Co-Executrices themselves petitioned for the appointment of an auditor for the express purpose of resolving the objections. 6. Due to the procedural and substantive questions of law implicated by the Co-Executrices' Motion to Dismiss Objections, the Preliminary Objections filed thereto were in the nature of motions to dismiss: (a) for legal insufficiency (i.e., failure to set forth an appropriate theory of law upon which the Co-Executrices sought to obtain a wholesale dismissal of the objections filed by the Objectors which were duly filed in a timely fashion and which appropriately preserved questions of fact and related issues regarding the Estate's accountings and inventories); (b) for failure to conform to law or rule or court (i.e., failure to cite any legal authority upon which it sought to allocate or assign the burden of proof upon the Objectors to demonstrate that the Estate's accountings and inventories were filed properly); and, (c) for insufficient specificity (i.e., failure to plead sufficiently the nature or extent of the legal authority upon which it premised the right to obtain a wholesale dismissal of the objections filed by the Objectors without otherwise demonstrating the propriety or legitimacy of the Co-Executrices' accountings and inventories). 7. Given the procedural and substantive questions of law presented, any Order issued by the Orphans' Court at this juncture which would grant the Co-Executrices' Motion to Dismiss Objections would effectively put the Objectors `out of court,' and would do so at a juncture in the proceedings when there now has been a substantial question of law raised as to the appropriate assignment of the burden of proof as to the propriety, legitimacy, and justification of the accountings and inventories filed in the above- captioned Estate. 8. Any Order issued by the Orphans' Court at this juncture granting the Co-Executrices' Motion to Dismiss Objections which would put the Objectors `out of court' would constitute an appealable collateral order under Pa.R.A.P. 313. 4 9. Due to the substantive questions of law presented, and in consideration of the procedural status of this matter in the context of the history of the above-captioned Estate litigation, the Court should receive briefs (in support of, in opposition to, and in reply) and hear argument on this matter prior to considering any Order granting the Co-Executrices' Motion to Dismiss Objections. 10. Under C.C.R.P. 208.3(a), this matter is ripe for an Order scheduling briefing and argument. WHEREFORE, the undersigned Objector respectfully requests that this Honorable Court issue an Order setting forth a briefing schedule and a date for oral argument. Respectfully submitted, DATE: December 1, 2009 ;~ ~~-~~~'"~~ ~ obert M. Mumma, II 840 Market St. -Suite 33333 Lemoyne, PA 17043 (717) 612-9720 PROSE 5 CERTIFICATE OF SERVICE I, Robert M. Mumma, II, pro se, do hereby certify that I caused a copy of the foregoing Request for Oral Argument 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 Barbara Mann Mumma 541 Bridgeview Dr. Lemoyne, PA 19043 Linda Mumma Roth PO Box 480 Mechanicsburg, PA 1705 5 Joseph D. Buckley, Esquire Court-Appointed Auditor 1237 Holly Pike Carlisle, PA 17013 DATE: December 1, 2009 BY: -~ Robert M. Mumma, II 840 Market St. -Ste. 3 3 3 3 3 Lemoyne, PA 17043 717-612-9720 PROSE 6