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Home My WebLink About12-09-10IN RE: ESTATE OF IN THE COURT OF COMMON PLEAS ROBERT M. MUMMA, OF CUMBERLAND COUNTY, PENNSYLVANIA Deceased ORPHANS' COURT DIVISION NO. 21-8b-398 PRAECIPE FOR COMPULSORY SUBSTITUTION UNDER PA.RC.P. 2352(bl AND NOW, comes Robert M. Mumma, II, by and through his counsel, Maurice R. Mitts, Esquire, who files the within Praecipe for Compulsory Substitution of Successor pursuant to Pa.R.C.P. 2352(b), and sets forth as follows: 1. Robert M. Mumma, II, is 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 M. Morgan and Barbara McK. Mumma (deceased)1 were appointed as Co- Executrices and Co-Trustees under the said Will and Trusts in 1986. 3. Robert M. Mumma, II and Barbara Mann Murnma have filed objections to the accountings and inventories filed by the Co-Executrices and Co-Trustees; said objections were filed in 1991, 2004, 2008, and 2009. a ~, = ~, f'~'1 ~ '.r`3'.~:~ ~~~ :"`~ ~~ 7~~CC}i ~ ~ Mumma passed away on July 17, 2010. ~ ~ 1 Barbara McK _ C? . r r 4. In a Petition for Appointment of Auditor filed January 5, 2005, the aforesaid Co- Executrices Lisa M. 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) heazings and/or pre-hearing conferences with respect to said objections; pursuant to this Court's Order dated November 7, 2010, the Auditor is required to file the Auditor's Report on or before December 10, 2010. 6. On July 17, 2010, Bazbaza McK. Mumma passed away; on July 26, 2010, Lisa M. Morgan received Letters of Administration from the Circuit Court for Palm Beach County, Florida, Probate Division, in the Estate of Barbara M. Mumma, a/k/a Barbara McK. Mumma, Deceased, Division IB (Judge Cook), Case ID No. 502010CP003379XXJCKMB. 7. Under the Will and Trust documents governing the Estate of Barbara McK. Mumma, Deceased, as probated in the State of Florida, Lisa M. Morgan became the Personal Representative thereof as well as the matrix beneficiary. On September 9, 2010, Robert M. Mumma, II filed a pro se Motion for Disqualification and Removal of Lisa M. Morgan as Executrix and Trustee Due to Conflict of Interest; pursuant to this Court's Order dated November 8, 2010, a hearing regazding said Motion has been scheduled for January 28, 2011. 9. On September 10, 2010, Lisa M. Morgan filed additional Accountings in the above-captioned matter with respect to both the Marital Trust and the Residual Trust. 10. 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. 11. On October 8, 2010, Lisa M. 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 November 23, 2010 unless written exceptions or objections are filed prior thereto. 12. On November 22, 2010, Robert M. Mumma, II and Barbara Mann Mumma each filed Objections to the Accountings filed by Lisa M. Morgan on September 10, 2010. 13. Pursuant to this Court's Order dated November 24, 2010, Joseph D. Buckley, Esquire was appointed Auditor with respect to the Objections filed on November 22, 2010. 14. The Pennsylvania Rules of Civil Procedure permit the compulsory substitution of successors in a pending action by providing that if the successor does not voluntarily become a party, the Court, upon praecipe of an adverse party setting forth the material facts, shall enter a rule upon the successor to show cause why the successor should not be substituted as a party. See, Pa.R.C.P. 2352(b). Under this Rule, it is necessary that a rule to show cause be issued and served on the successor, and that an order be made upon the rule, in order to compel the substitution of the successor as a party to the action. In the absence of a voluntary appearance or the service of a rule on the personal representative to show cause why Lisa M. Morgan, as personal representative of the Estate of Barbara McK. Mumma should not be made a party, no judgment may be entered against her in such capacity. 15. Because Lisa M. Morgan has not voluntarily substituted the Estate of Barbara M. Mumma, Deceased, as the successor party to the deceased fiduciary, Barbara Mck. Mumma, this Court must issue a Rule upon Lisa M. Morgan to show cause why she should not be, in her capacity as Personal Representative of the Estate of Barbara McK. Mumma, Deceased, substituted as the successor of the said deceased fiduciary Barbara McK. Mumma, as party to the litigation pending in the above-captioned matter. 16. Section 3374 of the Pennsylvania Probate, Estate, and Fiduciaries Code, titled "Death or removal of fiduciary" states in its entirety as follows: "An action or proceeding to which a fiduciary is a party is not abated by his death or resignation or by the termination of his authority. The successor of the fiduciary may be substituted in the action or proceeding in the manner provided by law." (See, 20 Pa.C.S.A. § 3374 -emphasis added). According to the legislative history notes published with the PEF Code, the procedure for the substitution of the successor of a fiduciary is governed by the Pennsylvania Rules of Civil Procedure. (See, Substitution of Parties, Pa.R.C.P. 2351 et seq.). 17. The voluntary appearance in a court of Pennsylvania by a foreign executor or administrator in a suit brought against him in his representative capacity will confer jurisdiction. Giampalo v. Ta +y lor, 6 A.2d 499 (Pa. 1939). See also, Gilberti v. Pavne, 331 A.2d 158 (Pa. 1975)(discussing Pa.R.C.P. 2352 as the proper procedure regarding the involuntary substitution of a successor due to death). VI>fIEREFORE, given the filing of the instant Praecipe for Compulsory Substitution of Successor Under Pa.R.C.P. 2352(b), this Court shall issue a RULE upon Lisa M. Morgan to show cause, if any she should have, why she should not be, in her capacity as Personal Representative of and on behalf of the Estate of Barbara McK. Mumma, Deceased, substituted as 4 the successor of the said deceased fiduciary Barbara McK. Mumma., as party to the litigation pending in the above-captioned matter. DATE: December 9, 2010 MITTS MILAVEC, LLC 'ce R. Mitts, Esquire Attorney Id. No.: 50297 Two Logan Square, 12`~ Floor Eighteenth and Arch Streets Philadelphia, PA 19103 (215) 569-1800 (telephone) (215) 569-1822 {facsimile) Attorney for Robert M. Mumma II, Beneficiary under duly probated will of his father, Robert M. Mumma CERTIFICATE OF SERVICE I, Maurice R. Mitts, Esqurre, do hereby certify that I caused a copy of the foregoing Praecipe for Compulsory Substitution of Successor Under Pa.R.C.P. 2352(b) and Proposed Rule to Show Cause Order to be served this date by U.S. Mail, first class, postage prepaid, addressed to: No V. Otto, III, Esquire Brady Green, Esquire Martson Law Offices Morgan, Lewis & Bockius, LLP 10 East High Street 1701 Market Street Carlisle, PA 17013 Philadelphia, PA 19103-2921 James G. Pressly, Jr., Esquire Lisa M. Morgan Pressly &Pressly, P.A. 1140 North Ocean Blvd. ' 222 Lakeview Ave. -Suite 910 Gulf Stream, FL 33483 West Palm Beach, FL 33401 Robert M. Mumma, II Bazbaza Mann Mumma 840 Market St. -Suite 33333 541 Bridgeview Dr. Lemoyne, PA 17043 Lemoyne, PA 17043 Linda Mumma Roth Joseph D. Buckley, Esquire c/o Carter Ellis Court-Appointed Auditor 203 Friars Court 1237 Holly Pike Mechanicsburg, PA 17050 Cazlisle, PA 17013 DATE: December 9, 2010 MITTS MILAVEC, LLC ce R. Mitts, Esquire Attorney Id. No.: 50297 Two Logan Square, 12s' Floor Eighteenth and Arch Streets Philadelphia, PA 19103 (215) 569-1800 (telephone) (215) 569-1822 (facsimile) Attorney for Robert M. Mumma, II, Beneficiary under duly probated will o, f his father, Robert M. Mumma