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Home My WebLink About09-09-10 (2)IN RE: ESTATE OF IN THE COURT OF COMMON PLEAS OF ROBERT M. MiJMMA, CUMBERLAND COUNTY, PENNSYLVANIA., Deceased ~ o ORPHAN'S COURT DMSION ,~~,., N0.21-86-398 ~"' t° ~~~ -° ~p A 0 v MOTION FOR I~ISOUALIFICATION AND REMOVAL OF LISA M MORGAN AS EXECUTRIX •ad TgUSTEE DUE TO CONFLICT OF INTEREST AND NOW comes Robert M. Mumma, II, pro se, and files the instant Motion for Disqualification and Removal of Lisa M. Morgan as Executrix and Trustee due to Conflict of Interest, and in support thereof avers as follows: The undersigned Movant is Robert M. Mumma, II, an adult individual, acting pro se in the instant case. 2. The Movant is a beneficiary of the above-captioned Estate and the Trusts created under the Will of the Decedent. 3. The Movant is a trustee of contingent beneficiaries of the above-captioned Estate and Trusts. 4. A petition for removal of the Executrices was first filed on January 27, 1989. 5. In an Order dated March 30, 1989, Judge Sheely held that the hearing set for the petition for removal of the Executrices on Apri13, 1989 was continued generally. No further proceedings were held thereafter with respect to the first petition for removal. ~~ ~~..~~ <; :. ~~ ~~ ~za c f -'. ~~ _n -, ~--> _ =,-~ i:/1 .. 6. A second petition for removal of the Executrices was filed on May 14, 2003, followed by motions for a hearing on the second petition for removal of the Executrices filed on November 20, 2003 and on February 25, 2004. 7. In an Order dated March 8, 2004, Judge Hoffer scheduled a hearing on the second petition for removal of the Executrices to be held on April 12, 2004. Judge Hoffer conducted a status conference on March 24, 2004 wherein the second petition for removal of the Executrices was consolidated with the Objections to the Final Accounting. Judge Holler's Order of March 24, 2004 continued generally the April 12, 2004 hearing on the petition for removal of the Executrices pending a future hearing on any objections to be filed to the final accounting. 8. In accordance with an Orphan's Court Order October 3, 2007, the undersigned movant filed a Further Motion for Removal of the Executrices and Trustees on or about May 31, 2008 deadline. Said motion averred, inter alia, that it was filed in consideration of the fact that the first and second petitions for removal of the Executrices and/or Trustees had remained unresolved. 9. For purposes of the instant motion, the Movant hereby incorporates by reference thereto as if fully set forth herein the averments of the previously filed first and second petitions for removal of the Executrices, as well as the previously filed Further Motion as identified hereinabove. 10. On July 17, 2010, Barbara McK. Mumma passed away. Under the Will and Trust documents governing the Estate of Barbara McK. Mumma, Lisa M. Morgan became the Executrix thereof as well as the sole beneficiary. 11. Lisa M. Morgan is one of four beneficiaries of the above-captioned Estate and Residuary Trust, along with the undersigned, Linda M. Mumma, and Barbara M. Mumma. 12. As of July 17, 2010, Lisa M. Morgan assumed the simultaneous and dual roles as both the Executrix and Trustee in the above-captioned Estate and Residuary Trust as well as the Executrix and Trustee in the Estate and Trusts of Barbara McK. Mumma. 13. As Executrix and Trustee in the above-captioned Estate and Residuary Trust, Lisa M. Morgan has a duty to the three sibling beneficiaries to administer said Estate and Trust solely in the interests of the said beneficiaries, to exclude all self-interest, to avoid placing herself in a position where her own interests (i.e., as sole beneficiary of the Estate and Trusts of Barbara McK. Mumma) enter into conflict - or may possibly conflict -with the interests of the Estate and Residuary Trust and/or the said beneficiaries thereof, and to avoid entering into any transaction or take or continue in a position in which her personal interests is or becomes adverse to the interests of the said beneficiaries. 14. Where an administrator's personal interest is in conflict with the interests of the decedent's estate, there exists sufficient cause for removal of the administrator. See, Rafferty's Estate. 105 A.2d 147 (Pa. 1954). 15. The court is authorized to remove an administrator where a conflict of interest is apparent from the circumstances. See, In re Estate of Gadipa~h' 632 A.2d 942 (Pa.Cmwlth. 1993). 16. Sufficient reason for removal of a fiduciary has been found when the fiduciary's personal interest is in conflict with that of the estate, such that the two interests cannot be served simultaneously; proof of a conflict of interest can be inferred from the circumstances. See, In rere Estate of Westin_ 874 A.2d 139 (Pa.Super. 2005). 3 17. An executor is to be removed due to conflict of interest where he was executor of a second estate against which the estate had a claim. See, In re Costello's Estate, 28 Fiduc.ltep. 208 (Pa.Com.PI. 1978); see also, In re 13silev's Estate, 186 A.2d 1 (Pa. 1962)(administratrix could not exercise objective judgment in determining whether an offer affecting the estate should be accepted or rejected; therefore, the court determined that she was to be removed as administratrix of the estate). 18. Where a conflict of interest or self-dealing is apparent from the circumstances, there is no need to demonstrate that the fiduciary acted in bad faith or with fraudulent intent; such a conflict of interest may justify removal of the executor. See, In re Dobson's Estate, 417 A.2d 138 (Pa. 1980)(citing cases). 19. It is not necessary that Lisa M. Morgan actually gain fiom any transactions in order to find a conflict of interest under the duty of loyalty: due to such a conflict of interest, any such transaction be voided at the option of the beneficiaries, regardless of gain or loss to the trustee or personal representative. 20. For purposes of this motion, the Movant hereby invokes and incorporates by reference thereto all remedies, claims, actions, and related relief available for the removal of executrices and/or trustees as set forth in the Probate, Estates and Fiduciaries Code, (specifically including 20 PaC.S.A. §§ 7766, 3182, and 3183) and further invokes and incorporates by reference thereto all remedies, rights, claims, entitlements, actions, and related relief available to the Movant as a beneficiary or interested party as set forth in the Probate, Estates, and Fiduciaries Code. 4 21. Pursuant to Cumberland County Rule of Civil Procedure 208.3(a)(9), the Movant sought an indication of either concunence or nonconcumence from the Estate counsel and the other interested parties on September 3, 2010. To date, neither the Estate counsel nor any other interested party has indicated either concurrence or nonconcurrence. 22. Pursuant to Cumberland County Rule of Civil Procedure 208.3(a)(2), the Honorable Wesley Oler has previously ruled on prior motions fined by the parties hereto. WHEREFORE, the Movant respectfully requests that this Honorable Court issue an appropriate Order GRANTIl~iG the instant Motion for Disqualification and Removal of Lisa M. Morgan as Executrix and Trustee due to Conflict of Interest, or alternatively, issue an appropriate Order which schedules a hearing on this matter. Respectfially submitted, r obert .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 Motion for Disqualification and Removal of Lisa M. Morgan as Executrix and Trustee due to Conflict of Interest 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 No V. Olio, III, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 Barbara Mann Mumma 541 Bridgeview Dr. Lemoyne, PA 19043 Linda Mumma Roth c% Gaiter Ellis 203 Friars Court Mechanicsburg, PA 17050 Joseph D. Buckley, Esquire Court-Appointed Auditor 1237 Holly Pike Carlisle, PA 17013 DATE: September 9, 2009 By; ~~ Robert .Mumma, II 840 Market St. -Ste. 33333 Lemoyne, PA 17043 717-612-9720 PRD SE 6