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Home My WebLink About11-23-10IN RE: ESTATE OF IN THE COURT OF COMMON PLEAS OF ROBERT M. MUMMA, CUMBERLAND COUNTY, PENNSYLVANIA Deceased ORPHANS' COURT DIVISION N0.21-86-398 MOTION TO STAY AUDITOR'S PROCEEDINGS and/or TO STAY THE FILING OF AUDITOR'S FINAL REPORT AND NOW comes Robert M. Mumma, II by and through his counsel, Mitts Milavec, LLC, and files the above-entitled motion, and in support thereof avers as follows: 1. The Movant is Robert M. Mumma, II, an adult individual, being a beneficiary and remainderman of the above-captioned Estate and the Trusts created under the Will of the Decedent, as well as a trustee of contingent beneficiaries and remaindermen of the above- captioned Estate and Trusts. 2. Lisa Mumma Morgan and Barbara McK. Mumma (deceased)' were appointed as Co-Executrices and Co-Trustees under the said Will and Trusts in 1986. 3. The Movant has filed objections to the accountings and inventories filed by the Co-Executrices; said objections were filed in October 1991, in May 2004, and in January 2008; Barbara Mann Mumma also filed objections in 2009. t7 ~~ 1 c ~ ~ Barbara McK. Mumma passed away on July 17 2010 ~ ~ ' -Y _ , . ;~, ~ ; ~-rn -, 1 ~ ~0 ~ ,.:~__~ ~ =~ '' ` --~ tx~ -~~ : W `- ~ ~'j O .~. 4. In a Petition for Appointment of Auditor filed January 5, 2005, the aforesaid Co- Executrices Lisa Mumma Morgan and Barbara McK. Mumma (deceased) sought the appointment of an Auditor "to pass upon the objections." 5. From October 29, 2008 through June 16, 2010, Auditor Joseph Buckley, Esquire conducted at least thirty-four (34) hearings and/or pre-hearing conferences with respect to the Objections filed by both the Movant and Barbara Mann Mumma to the accountings and inventories of the aforesaid Co-Executrices. 6. At all material times during the aforesaid Auditor's proceedings, the Movant and Barbara Mann Mumma were designated as the "Objectors." Specifically, the Movant was designated by the Auditor as "Objector 1," while Barbara Mann Mumma was designated by the Auditor as "Objector 2." 7. At the close of the Auditor's hearings in June 2010, the parties were advised that they could submit briefs to the Auditor prior to the filing of the Auditor's final report with the Orphans' Court. Pursuant to a subsequent Order entered by the Orphans' Court on August 20, 2010, the parties were directed to file their respective briefs on or before October 8, 2010. On July 17, 2010, Barbara McK. Mumma passed away; under the Will and Trust documents governing the Estate of Barbara McK. Mumma, Lisa Mumma Morgan became the Executrix thereof as well as the sole beneficiary. 9. On September 9, 2010, the Movant filed a Motion for Disqualification and Removal of Lisa M. Morgan as Executrix and Trustee Due to Conflict of Interest. Said Motion averred, inter alia, as follows: A. A petition for removal of the aforesaid Co-Executrices was first filed on January 27, 1989; B. In an Order dated March 30, 1989, Judge Sheely held that the hearing set for the removal of the Co-Executrices on April 3, 1989 was continued generally; no further proceedings were held thereafter with respect to the first petition for removal; C. A second petition for removal of the Co-Executrices was filed on May 14, 2003, followed by motions for a hearing on the second petition for removal filed on November 23, 2003 and on February 25, 2004; D. In an Order dated March 8, 2004, Judge Hoffer scheduled a hearing on the second petition for removal to be held on April 12, 2004; Judge Hoffer conducted a status conference on March 24, 2004 wherein the second petition for removal was consolidated with Objections to Final Accounting; Judge Holler's Order of March 24, 2004 continued generally the April 12, 2004 hearing on the petition for removal pending a future hearing on any objections to filed to the final accounting; E. In accordance with an Orphans' Court Order dated October 3, 2007, the Movant filed a Further Motion for Removal of the Executrices and Trustees on or about May 31, 2008; F. On July 17, 2010, Lisa Mumma 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 Barbaza McK. Mumma, and was the sole beneficiary with respect to the latter; and, G. As Executrix and Trustee in the above-captioned Estate and Residuary Trust, Lisa Mumma Morgan has a duty to the beneficiaries thereof to administer said Estate and Trust solely in the interests of said beneficiaries, to exclude all self- interest, to avoid placing herself in a position where her own interests enter into conflict or may possibly conflict with the interests of the above-captioned Estate and Residuary Trust and/or the said beneficiaries thereof, and to avoid entering into any transaction or to take or continue in a position in which her personal interest is or becomes adverse to the interests of the said beneficiaries. 10. On September 10, 2010, Lisa Mumma Morgan filed additional Accountings in the above-captioned matter with respect to both the Marital Trust and the Residual Trust. 11. On September 17, 2010, due to the death of Barbara McK. Mumma, letters testamentary were issued to Barbara Mann Mumma and she was appointed as the successor Co- Executrix pursuant to the terms of the Decedent's Will and Codicil. 12. Upon consideration of the aforesaid Motion for Disqualification and Removal of Lisa M. Morgan as Executrix and Trustee Due to Conflict of Interest, the Orphans' Court entered an Order dated September 29, 2010 which issued a Rule to show cause why the relief requested should not be granted. Said Order provided that the Rule was returnable within 30 days. 13. On October 8, 2010, Lisa Mumma Morgan issued a Notice of Filing Accounts and Petitions for Adjudication and Call for Audit or Confirmation; said Notice further specified that said Accounts will be presented for confirmation to the Orphans' Court on Tuesday, November 23, 2010 at 9:30 a.m. unless written exceptions or objections are filed prior thereto. 4 14. Also on October 8, 2010, the parties filed their respective briefs with the Auditor. On October 14, 2010, the aforesaid Co-Executrices also filed a reply brief to the brief filed by Barbara Mann Mumma. 15. On October 29, 2010, Lisa Mumma Morgan filed an Answer to the aforesaid Motion for Disqualification and Removal of Lisa M. Morgan as Executrix and Trustee Due to Conflict of Interest. 16. On November 8, 2010, two Orders were entered by the Orphans' Court: A. On November 8, 2010, upon consideration of the aforesaid Motion for Disqualification and Removal of Lisa M. Morgan as Executrix and Trustee Due to Conflict of Interest, the Orphans' Court entered an Order scheduling a hearing for Friday, January 28, 2011 at 1:30 p.m.; and, B. On November 8, 2010, upon consideration of an application of the Auditor, the Orphans' Court entered an Order permitting the Auditor to file the Auditor's Report on or before December 10, 2010. 17. On November 22, 2010, the aforesaid Objectors filed Objections to the Accountings filed by Lisa Mumma Morgan on September 10, 2010. 18. Pursuant to the local rules of court, upon the motion or petition of any party in interest, the disposition of Objections filed to an Account shall require the appointment of an auditor. See, Local O.C. Rule 6.10-2(a). Therefore, the Objectors recent filing of objections to the Trust(s) Accountings filed on September 10, 2010 will require the appointment of an auditor. 19. This Court has scheduled a hearing for January 28, 2011 regarding the Motion for Disqualification and Removal of Lisa M. Morgan as Executrix and Trustee Due to Conflict of Interest; due to the nature and scope of the diapositive issues to be addressed therein pertaining to 5 Lisa Mumma Morgan's status as a dual and simultaneous Executrix and Trustee as of July 17, 2010 and continuing thereafter in both the above-captioned Estate and the Estate of Barbara McK. Mumma, and the actuality or possibility of a conflict of interest, this Court should stay the instant Auditor's proceedings and the filing of the Auditor's Final Report until the Court has an opportunity to conduct the January 28, 2011 hearing and consider the matters presented by the parties. 20. Among other things, the matter of whether Lisa Mumma Morgan should be removed as Executrix is one of the matters previously referred to the Auditor for disposition in his report; hence, no such final report of the Auditor should be filed until the pending Motion for Disqualification and Removal of Lisa M. Morgan as Executrix and Trustee Due to Conflict of Interest is addressed by the Orphans' Court at the January 28, 2011 hearing. 21. In addition, the Auditor's Final Report should not be filed by Mr. Buckley on or before December 10, 2010 due to the recently filed objections to the Trust(s) Accountings filed on September 10, 2010. Said recently filed Objections to the Trust Accountings will require the appointment of an auditor, and all objections filed to the above-captioned Trusts must be addressed pursuant to local rules of court. 22. A stay of the filing of the Auditor's Final Report will not cause any undue prejudice on any party at this juncture. Importantly, the Auditor himself recently applied for an extension of time within which to submit his report, and permitting a stay of the filing of said report at this time will also afford the Auditor with additional time to prepare his report. 23. Furthermore, such a stay is necessary to ensure that this matter is appropriately addressed and/or resolved insofar as it will ultimately impact or govern the scope of the issues to be ruled upon by the Auditor, as well as subsequent review by the Orphans' Court. 6 24. Co-Executrix and Objector Barbara Mann Mumma concurs in the relief sought by the instant Motion. Concurrence has not been obtained ar sought limn Co-Executrix Lisa Mumma Morgan clue to her prior positions taken in this matter against the Objectors. 25. The Honorable J. Wesley Oler, Jr. has previously Wiled an prior motions filed by the parties hereto. vf~REFORE, based upon the reasons set forth hereinabove, the Movant on behalf of the Objectors respectfully requests that this Nonarable Court issue an Order that stays the Auditor's proceedings and that stays the filing of the Auditor's Final Report in this matter, and to continue same in fight of the pending January 2$, 2011 hearing. Respectfully submitted, MITTS MILAVEC, LLC --~ r %1 R Mitts, Esquire Attorney ld.1Vo.: 50297 Two Logan. Square, 12~' Floor Eighteenth and Arch Streets Philadelphia, PA 19103 (215) 569-1800 (telephone) (215) 569-1822 (facsimile) tlttvrney for Havant CERTIFICATE OF SERVICE I, Maurice R. Mitts, Esquire, do hereby certify that I caused a copy of the foregoing MOTION TO STAY AUDITOR'S PROCEEDINGS and/or TO STAY THE FILING OF AUDITOR'S FINAL REPORT to be served this 23`~ day of November, 2010 by U.S. Mail, first class, postage prepaid, addressed to: Brady Green, Esquire Morgan,. Lewis & Bockius, LLP 1701 Market Street Philadelphia, PA 19103-292.1 No W. Otto, 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!o Carter Ellis 203 Friars Court Mechanicsburg, PA 17050 Joseph D. Buckley, Esquire Court-Appairtted Auditor 1237 Holly Pike Carlisle, PA 17013 ~, VFW, [aLC ~.:~ Maurice .Mitts, Esquire Attorney Id. No.: 50297 Two Logan Square, 12a' Floor Eighteerrth and Arch Streets Philadelphia, PA 19143 (215) 569-1800 (telephone) (215) 569-1822 (facsimile) Attorney for Movant