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HomeMy WebLinkAbout10-29-10George B. Faller, Jr., Esquire I.D. No. 49813 No V. Otto, III, Esquire h.,? I.D. No. 27763 n ._ _.~ -_, cn rte: -:: ennifer L. Spears, Esquire ;..-~_ - LD. No. 87445 =- `` MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER ~ ' ~ ~ ~, r = ! ~.., MARTSON LAW OFFICES - ~,; 10 East High Street _~ Carlisle, PA 17013 ~ ~~ - (717) 243-3341 Attorneys for Lisa M. Morgan =1~' -' ~ , - ~y ;, IN THE COURT OF COMMON PLEAS IN RE: OF CUMBERLAND COUNTY, PENNSYLVANIA Estate of Robert M. Mumma, : NO. 21-86-398 Deceased. ORPHANS' COURT DIVISION ANSWER OF LISA M. MORGAN TO THE MOTION OF ROBERT M. MOMMA, II FOR DISQUALIFICATION AND REMOVAL OF LISA M. MORGAN AS EXECUTRIX AND TRUSTEE DUE TO CONFLICT OF INTEREST Lisa M. Morgan responds as follows to the motion of Robert M. Mumma, II to disqualify and remove her as Executrix of and Trustee of two trusts under the Will of Robert M. Mumma, Sr.: 1. Admitted in part; denied in part. It is admitted that Mr. Mumma, II is acting pro se. However, Mr. Mumma, II is, upon information and belief, being assisted by James G. Gault, Esquire, though Mr. Gault has not entered his appearance of record on behalf of Mr. Mumma, II. The remainder of the paragraph is denied as stated. The allegations of this paragraph constitute legal conclusions, to which no response is required. 2. Denied. To the contrary, a disclaimer was filed in this matter on or about January 12, 1987, whereby Mr. Mumma, II disclaimed any interest under the will of Robert M. Mumma. No court has issued a final ruling on the effect of the disclaimer. 3. See Number 2 above. 4.-8. Admitted in part; denied in part. Mrs. Morgan generally admits the procedural history alleged in these paragraphs. However all documents mentioned speak for themselves and Mrs. Morgan denies any characterization thereof. 9. No response is necessary as this paragraph constitutes an incorporation clause. By way of further response, Mrs. Morgan hereby incorporates by reference all previously filed responses to the aforementioned motions of Mr. Mumma, II requesting her disqualification and/or removal as an Executrix and and/or Trustee. The motions in question have been referred to Auditor Joseph Buckley for a recommended ruling. 10. Admitted in part; denied in part. It is admitted that Barbara McK. Mumma passed away on July 17, 2010, and that Lisa M. Morgan was appointed Executrix of her Will. It is admitted that Mrs. Morgan is the principal beneficiary of Mrs. Mumma's Will. It is denied that Mrs. Morgan is the sole beneficiary. By way of further response, Mrs. Mumma's Will and Trust Agreements contain a specific provision explaining her testamentary intent. Moreover, the specifics of Mrs. Mumma's Will are not relevant to this matter. 11. Admitted in part; denied in part. It is admitted that Mrs. Morgan, Linda Mumma and Barbara M. Mumma are beneficiaries. See Number 2 above. 12. Admitted in part; denied in part. It is admitted that Mrs. Morgan, at some point after Mrs. Mumma's death, was both the Executrix and Trustee of the estate and 2 trusts of both Mr. Mumma Sr. and Mrs. Mumma until Barbara M. Mumma was appointed a Co-Executrix in Mr. Mumma Sr.'s estate. Mr. Mumma's estate was essentially concluded at the time of Mrs. Mumma's death, because distribution by the Court is generally all that remains. 13. Denied. The allegations of this paragraph constitute legal conclusions to which no response is required. They are, therefore, deemed to be denied. See also Numbers 2 and 11. 14.-18. Denied. The allegations of these paragraphs constitute legal conclusions to which no response is required, and they are, therefore, deemed to be denied. By way of further response, it is denied that these paragraphs constitute thorough or accurate holdings of the cited cases, which are fact-specific, distinguishable and/or generally inapplicable, to the instant case. 19. Denied. The allegations of this paragraph constitute legal conclusons to which no response is required. They are, therefore, deemed to be denied. By way of further response, the governing statutory provision is as follows: The court shall have exclusive power to remove a personal representative when he: (1) is wasting or mismanaging the estate, is or is likely to become insolvent, or has failed to perform any duty imposed by law; or (2) Deleted; (3) has become incapacitated to discharge the duties of his office because of sickness or physical or mental incapacity and his incapacity is likely to continue to the injury of the estate; or (4) has removed from the Commonwealth or has ceased to have a known place of residence therein, without furnishing such security or additional security as the court shall direct; or (4.1) has been charged with voluntary manslaughter or homicide, except homicide by vehicle, as set forth in sections 3155 [] and 3156 [], provided that the removal shall not occur on these grounds if the charge has been dismissed, withdrawn or terminated by a verdict of not guilty; or (5) when, for any other reason, the interests of the estate are likely to be jeopardized by his continuance in office. 3 20 Pa.C.S. § 3182. "The reasons for removal of a fiduciary must be clearly proven." in re Estate of Westin, 874 A.2d 139, 144 (Pa.Super. 2005). "When decedent appointed his widow and appellant [the decedent's son] as his personal representatives he clearly reposed in them his trust and confidence." (Pa. 1969). In re Estate of DiMarco, 257 A.2d 849, 854 The only conceivable "conflicts" that have been alleged in the course of the extensive proceedings relating to Mr. Mumma, Sr.'s Estate and the Trusts established under his Will that could possibly apply to Mrs. Morgan are wholly dependent upon the accuracy of allegations made -but never proven -- by Mr. Mumma, II. He has alleged against Mrs. Mumma and Mrs. Morgan various improprieties and misconduct. These allegations constituted the basis for Mr. Mumma, II's serial motions to remove Mrs. Mumma and Mrs. Morgan as fiduciaries, they were the subject of argument, evidence and testimony before the Auditor, and they will be the subject of the anticipated report and recommendation of the Auditor. The fact that a beneficiary alleges misconduct by fiduciaries does not create a disqualifying conflict of interest. Neither Mrs. Mumma's death, nor the provisions of her Will, alter the situation. Furthermore, the mere fact that Mrs Mumma's estate might be liable for the harm she allegedly caused as a fiduciary during her lifetime does not somehow create a new "conflict" that would disqualify Mrs. Morgan from continuing to act as Trustee. If Mr. Mumma, II's motions are denied, Mrs. Mumma and Mrs. Morgan will have acted entirely consistently with their fiduciary duties in defending Mr. Mumma, II's allegations, and there will have been no "conflict" that could possibly justify removing Mrs. Morgan at this juncture. In addition, Mrs. Morgan has filed Final Accountings have been filed for the Estate of Mr. Mumma, Sr. and the 4 Trusts established under his Will. All that remains generally is distribution of the Trusts by the court. 20. Denied. This paragraph constitutes a request for relief which requires no response. 21. Admitted in part, denied in part. Mrs. Morgan is without sufficient knowledge to admit or deny the concurrence or non-concurrence of "any other interested party" and therefore it is denied. It is admitted that Mrs. Morgan does not concur with the requested relief. 22. Admitted. Judge Oler has previously decided motions and petitions filed in these and other proceedings touching upon allegations by Mr. Mumma, II with respect to the conduct of Mrs. Mumma and Mrs. Morgan as fiduciaries and related matters. WHEREFORE, Mrs. Morgan respectfully requests that Mr. Mumma, II,'s motion to disqualify and remover her as Executrix and Trustee be denied.. MARTSON LAW OFFICES By ~ ~ _/~ Geor .Faller, Jr., Esquire I.D. No. 49813 No V. Otto, III, Esquire I.D. No. 27763 Jennifer L. Spears, Esquire I.D. No. 87445 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Date: October 29, 2010 Attorneys for Lisa M. Morgan 5 CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the Answer of Lisa M. Morgan to the Motion of Robert M. Mumma, II for Disqualification and Removal of Lisa M. Morgan as Executrix and Trustee Due to Conflict of Interest was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Mr. Robert M. Mumma, II P.O. Box F Grantham, PA 17027 Mr. Robert M. Mumma, II 840 Market Street, Suite 164 Lemoyne, PA 17043 Mr. Robert M. Mumma, II 6880 S.E. Harbor Circle Stuart, FL 34996-1968 Ms. Barbara M. Mumma 541 Bridgeview Drive Lemoyne, PA 17043 Ms. Linda M. Mumma 512 Creekview Lane Mechanicsburg, PA 17055 Ms. Linda Mumma c/o Carter Ellis 203 Friars Court Mechanicsburg, PA 17050 Joseph D. Buckley, Esquire 1237 Holly Pike Carlisle, PA 17013 MARTSON LAW OFFICES Y ricia D. Ecl nroad Ten East High Street Carlisle, PA 17013 Dated: October 29, 2010 (717) 243-3341