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HomeMy WebLinkAbout04-06-11IN RE: ESTATE OF ROBERT M. bIIJMMA, Deceased IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ORPHAN'S COURT DIVISION N0.21-86-398 ROBERT M. M[[JIVIIVIA, II'S CONCISE STATEMENT OF MATTERS COMPLAINED OF ON APPEAL PURSUANT TO PA.R.A.P.1925(b) REGARDING THE ORPHAN'S COURT ORDER ENTERED ON MARCH 8, 2011 AND THE APPEAL THEREOF TO THE SUPERIOR COURT DOCKETED AT NO. 481 MDA 2009 ROBERT M. MUNIlvIA, II 840 Mazket St. Suite 33333 Lemoyne, PA 17043 (717)612-9720 PROSE c~ ~~.-' ~ ~ = =_ ~ ~ ~, ,-,-, ~ -T- N ors p ~, 'n AND NOW, pursuant to Pa.R.A.P. 1925(b),1 comes Robert M. Mumma, II, pro se, the Appellant in the appeal to the Superior Court docketed at No. 481 MDA 2011 who hereby files and serves this Concise Statement of Matters Complained of On Appeal as so directed by the Orphans' Court Order entered Mazch 16, 2011; For purposes of Pa.R.A.P. 1925(b)(4)(vi), the undersigned hereby prefaces this Rule 1925(b) Statement by noting that those errors complained of as described in general terms herein have been so identified in general terms to the extent the parties aze unable to readily discern the basis for the judge's decision inasmuch as no discursive opinion was issued by the judge; In support of the instant Statement of Matters Complained of On Appeal the undersigned Appellant states as follows: 1. Judge Oler's Order entered on March 8, 2011 (hereinafter, the "Order") denying the Motion for Disqualification and Removal of Lisa M. Morgan as Executrix and Trustee due to Conflict of Interest (hereinafter, the "Motion") constitutes an error of law and an abuse of discretion for the reasons set forth herein. 1 See, Pa.RA.P. 1925(bx4)(iv) as to non-waiver based upon the number of errors raised; see also, Eiser v. Brown & Williamson Tobacco Coro., 938 A.2d 417 (Pa. 2007xa party may in good faith believe that a lazger number of issues are worthy of pursuing on appeal; Supreme Court finds no waiver due to number of issues in a Rule 1925(b) statement where appellant was not trying to thwart the appellate process, where meaningful review was not impaired, where the lawsuit by all accounts is a complicated one, and where the appeal otherwise complies with the mandates of the appellate process); see also, Ferris v. Harkins, 940 A.2d 388 (Pa. Super. 2007); Donou~he v. Lincoln Elec. Co., 936 A.2d 52 (Pa. Super. 2007). 1 2. The disposition of the Motion via aone-sentence Order without a discursive opinion fails to reflect whether the Judge undertook an adequate and comprehensive analysis of the record, the factual issues, the legal issues, or otherwise considered the specific issues raised in the Movant's Brief filed subsequent to the January 28, 2011 hearing. 3. Judge Oler committed an error of law and an abuse of discretion by failing to grant the Motion as a matter of law under the provisions of the Probate, Estates and Fiduciaries Code, 20 Pa.C.S.A. § 3182(1), insofaz as Lisa M. Morgan must beremoved as Co-Executrix because she has failed to perform a "duty imposed bylaw," i.e., her fiduciary "duty of loyalty" to the sibling beneficiaries. 4. Judge Oler committed an error of law and an abuse of discretion by failing to grant the Motion as a matter of law under the provisions of the Probate, Estates and Fiduciaries Code, 20 Pa.C.S.A. § 3182(5), insofaz as a Co-Executrix is subject to removal `for any other reason." This PEF Code provision is applicable because it encompasses the conflict of interest which has arisen due to Lisa M. Morgan's simultaneous and dual roles as Executrix and Trustee in both parents' Estates and Trusts, including pending litigation involving said Estates in both Florida and Pennsylvania. 5. Judge Oler committed an error of law and an abuse of discretion by failing to grant the Motion as a matter of law under the provisions of the Probate, Estates and Fiduciazies Code, 20 Pa.C.S.A. § 3183, insofaz as removal of Lisa M. Morgan as Co-Executrix is `necessary to protect the rights of the parties in interest' -same being the rights of the remaining sibling beneficiaries. 2 6. Judge Oler committed an error of law and an abuse of discretion by failing to grant the Motion as a matter of law under the provisions of the Probate, Estates and Fiduciaries Code, 20 Pa.C.S.A. § 7766(b)2, insofaz as removal of Lisa M. Morgan as Trustee `best serves the interests of the beneficiaries of the trust' -same being the remaining sibling beneficiaries. 7. Judge Oler committed an error of law and an abuse of discretion by not disqualifying and removing Lisa M. Morgan due to a conflict of interest because of the following factors: A. Following July 17, 2010, she occupied the simultaneous and dual roles of Executrix and Trustee of both of her late pazents' Estates and Trusts with competing claims pending in both Pennsylvania and Florida. B. The record reveals the filing of Objections which specifically objected to the over- funding of the Marital Trust by Lisa M. Morgan as Co-Executrix, and which also objected to the inclusion of a broad array of assets purportedly belonging to the Decedent as property of the Estate or Trusts. The Objectors indicated to the Auditor that these assets were not owned by the Decedent in the first instance, but rather these assets were to be traced to the Estate of Walter M. Mumma whose Will directed that said assets were to become the property of the four sibling beneficiaries, and that said Co-Executrix had engaged in the conversion of these assets into the Decedent's Estate and Trusts. Z For purposes of 20 Pa.C.S.A. §7766(b)(1), Lisa M. Morgan has committed a serious breach of trust, including, inter alia, her refusal to make any distributions of the Decedent's Trusts as provided in Items Seventh and Eighth of the Decedent's Will; for purposes of 20 Pa.C.S.A. §7766(b)(4), there has been a substantial change of circumstances secondary to the recent probate filings in Florida which have positioned her in the simultaneous and dual capacities as Executrix and Trustee of both pazents' Estates and Trusts with estate litigation pending in both Florida and Pennsylvania. C. The record reveals these contentiously disputed assets have now become part of the Estate of Barbara McK. Mumma (by virtue of their inclusion in the over-funded Marital Trust as opposed to the Residuary Trust) and are now subject to the claims of the sole sibling beneficiary, Lisa M. Morgan, who stands to benefit to the exclusion of the other beneficiaries. D. At the January 28, 2011 hearing, Lisa M. Morgan confirmed that she had filed an Inventory of the property of the Estate of Barbara McK. Mumma in the Circuit Court for Palm Beach County, Florida, Probate Division, on September 27, 2010 which included a number of assets that were derived from the above-captioned Estate and Trusts, including corporate stock. E. At the January 28, 2011 hearing, Lisa M. Morgan revealed that a corporate dividend for Union Quarries had been declared in 2010 in the amount of $900,000 and that said dividend was paid into the Marital Trust of which she has now become the primary beneficiary by virtue of the recent Florida probate court filings. F. At the January 28, 2011 hearing, Lisa M. Morgan admitted that the decision to declare a dividend from DE Distribution would result in her receipt of a `double dip' insofar as she would receive a dividend as a shareholder with an additional dividend made payable to the Estate in Florida of which she is the primary beneficiary. G. The record reveals that said Co-Executrix's handling of these dividends represents a breach of her fiduciary duty of loyalty to the sibling beneficiaries as well as her conflicted self-interest in the handling of the Estate and Trusts administration. 4 H. At the January 28, 2011 hearing, Lisa M. Morgan informed the Court that she first became aware of the terms of her mother's Trust in Florida approximately two years ago. By definition, her time of awareness would pre-date the commencement of the Auditor's proceedings in April 2009. Thus, Lisa M. Morgan was not only previously aware of the terms of her mother's Trust documents which were to be probated in Florida (naming her as the primary beneficiary), but she was also aware of -and self-interested in -the maximizing of the value of the Marital Trust and the allocating of assets into said trust as opposed to the Residuary Trust. The record reveals that until Mrs. Momma's Will and Trust documents were probated in Florida, and until the Inventory was filed with the Florida probate court by Lisa M. Morgan, the other three beneficiaries had an expectation that they were to share and share alike from both Trusts as of the date of death of Mrs. Mumma. However, instead of share and share alike amongst the four sibling beneficiaries, their interests in the assets have been effectively transferred to the Florida Estate and Trust for administration where only one sibling, Lisa M. Morgan, is named as beneficiary. J. The record reveals that said Co-Executrix has failed to meet her fiduciary duty of loyalty to the sibling beneficiaries because the latter will only receive assets previously allocated to the Residuary Trust while she is as the sole beneficiary of the over-funded Marital Trust. Because her dual capacity roles in both parents' Estates and Trusts permits her to engage in such "self-interested" control over the administration of the assets, a disqualifying conflict of interest has arisen which warrants her removal. 5 8. Judge Oler committed an error of law and an abuse of discretion by failing to grant the Motion because Lisa M. Morgan has the legal and fiduciary duty to administer the Decedent's Estate and Trusts solely in the interests of the sibling beneficiaries, and therein she is duty-bound to exclude all self-interest and to avoid placing herself in a position where her own interests enter into conflict - or may possibly con. flict -with the interests of the other sibling beneficiaries. 9. Judge Oler committed an error of law and an abuse of discretion by failing to grant the Motion because Lisa M. Morgan continues to serve simultaneously as the Executrix and Trustee of both parent's Estates and Trusts whenever she is the primary beneficiary of the mother's Estate and Trust which in turn derived the bulk of its assets from the father's Marital Trust which was over-funded by said Co-Executrix in the first instance, with same being subject to pending litigation in the probate courts of Florida and Pennsylvania and with same being in derogation of her fiduciary duty of loyalty to the other three beneficiaries. 10. Judge Oler committed an error of law and an abuse of discretion by failing to grant the Motion because Lisa M. Morgan is subject to removal and disqualification under both the PEF Code and the decisional law cited in the Movant's Brief; said disqualification is required due to the inherent conflict of interest that azose subsequent to her appointment in Florida as the Executrix and Trustee of the Estate of Bazbaza McK. Mumma -and being named the primary beneficiary thereof. 6 11. Judge Oler committed an error of law and an abuse of discretion as exemplified during the January 28, 2011 hearing wherein the Movant was denied a complete and full opportunity to create a meaningful record; the Movant was further restricted by Judge Oler in the presentation of complete testimony from all witnesses present at the hearing; the Movant was further restricted from presenting testimony from witnesses subpoenaed to attend the hearing, namely Marc Sonnenfeld. The Court also failed to consider the Movant's contention that any further Auditor's hearings should be stayed until there is a ruling on the Objections previously heard and briefed. DATE: April 6, 2011 -, Robert M. umma, 840 Market St. Suite 33333 Lemoyne, PA 17043 (717)612-9720 PROSE CERTIFICATE OF SERVICE I, Robert M. Mumma, II, pro se, the Movant and Appellant herein, do hereby certify that I caused a copy of the foregoing Rule 1925(b) Statement to be served on this date as follows: By U.S. Mail, first class, postage prepaid, addressed to: Brady Green, Esquire Morgan, Lewis & Bockius, LLP 1701 Market Street Philadelphia, PA 19103-2921 Counsel for Lisa M. Morgan No V. Otto, III, Esquire Martson Law Office 10 East High Street Carlisle, PA 17013 Counsel for Lisa M. Morgan Linda Mumma Roth c/o Carter Ellis 203 Friars Court Mechanicsburg, PA 17050 Barbara Mann Mumma 541 Bridgeview Dr. Lemoyne, PA 17043 Joseph D. Buckley, Esquire Court-Appointed Auditor 1237 Holly Pike Carlisle, PA 17013 BY HAND-DELIVERY TO THE CHAMBERS OF: The Honorable J. Wesley Oler, Jr. Cumberland County Courthouse One Courthouse Square High & Hanover Streets Carlisle, PA 17013 DATE: April 6, 2011 Z ~~~'l G ~ Z obert M. Mumma, II 840 Market St. Suite 33333 Lemoyne, PA 17043 (717) 612-9720 PROSE 8