HomeMy WebLinkAbout06-01-11
IN RE: ESTATE IN THE COURT OF COMMON PLEAS OF
OF ROBERT M. MUMMA, CUMBERLAND COUNTY, PENNSYLVANIA
Deceased ~_ ~,
ORPHANS' COURT DIVISION c.... ~'
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N0.21-86-398 ORPHANS' CO - =~~
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IN RE: OPINION PURSUANT TO PA. RA.P. 1925 ~ -'~ "-
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Oler, J., May 31, 2011. ~ ~
In this decedent's estate, which remains unsettled after twenty-five years and is
presently subject to court-appointed auditor proceedings,2 a beneficiary of the estate of
his deceased father, and remainderman of trusts created under his father's wi11,3
proceeding pro se,4 filed a motion to disqualify and remove the individual acting as co-
' Letters of Testamentary were granted on June 5, 1986. See Letters Testamentary, Will Book No. 100:
388, Death Certificate of Robert M. Mumma, filed June 5, 1986; see Docket, Register of Wills, No. 21-
86-398, at 1.
z As of the date Appellant filed this motion, the current court-appointed auditor in the person of
Cumberland County Attorney Joseph D. Buckley, Esq. had presided over approximately thirty-three days
of hearings, and has since conducted an additional four days of heazings, with more hearings scheduled
for the future.
s Last Will and Testament of Robert M. Mumma.
While Appellant does not have counsel of record, he is far from a novice in this county with respect to
litigation. See, e.g., Mumma v. CRH, Inc., 99-1546 Civil Term (Ct. Com. Pl. Cumb. 1999); Mumma v.
Pennsy Supply, Inc., 2765 Equity 1999 (Ct. Com. Pl. Cumb. 1999); Mumma v. G-A-T Distribution Corp.,
94-0423 Civil Term (Ct. Com. Pl. Cumb. 1994); Mumma v. Nine Ninety-Nine, Inc., 14 Equity 1990 (Ct.
Com. Pl. Cumb 1990); Mumma v. Ninety-Nine, Inc., 15 Equity 1990 (Ct. Com. PL Cumb. 1990); Mumma
v. Mumma, 84 Equity 1990 (Ct. Com. Pl. Cumb. 1990); Mumma v. Mumma, 66 Equity 1988 (Ct. Com. Pl.
Cumb. 1988). Furthermore, Appellant has filed various motions recently in this court pro se; (See, e.g.,
Motion To Enforce Compliance with Request for Production of Documents upon a Party and Motion for
Sanctions, filed April 8, 2011; Motion for Jury Trial, filed April 8, 2011; Robert M. Mumma II's
Application Under 20 Pa. C.S. §767 To Join Additional Parties in Interest, filed April 26, 2011); has
appealed numerous orders from this court to the Superior Court (See, e.g., Notice of Appeal, filed
September 15, 2005 (appeal quashed by Superior Court by order dated October 28, 2005, at No. 1546
MDA 2005), Notice of Appeal, filed January 14, 2009 (appeal quashed by Superior Court by order dated
Mazch 27, 2009, at No. 270 MDA 2009); and is currently involved in litigation in at least one other state
(See, e.g., Notes of Testimony, 88, Hearing, January 28, 2011 (hereinafter "N.T. , Heazing, January
28, 2011"); RMM Exhibit 1, admitted at Hearing, January 28, 2011 (Objections Mr. Mumma, II, filed a
lawsuit in Florida against his recently deceased mother's estate).
5
executrix of the will and co-trustee of the trusts due to a purported conflict of interest.5 A
hearing on this motion was held on January 28, 2011, and the motion was denied by the
court. 6
From the denial of the motion, Appellant has filed a pro se, and arguably
interlocutory, ?appeal to the Pennsylvania Superior Court.8 The bases for the appeal have
been expressed in a seven-page9 statement of matters complained of on appeal as follows:
5 Motion for Disqualification and Removal of Lisa M. Morgan as Executrix and Trustee Due to Conflict
of Interest, filed September 9, 2010 (hereinafter "Mot. for Disq., filed Sept. 9, 2010").
6 Order of Court, In re: Motion for Disqualification and Removal of Lisa M. Morgan as Executrix and
Trustee Due to Conflict of Interest, Mazch 4, 2011 (the court notes that, while the order of court is dated
March 4, 2011, it was time-stamped as filed on March 8, 2011).
See, e.g., In re: Estate of Dixon, [21-07-0686 and 21-1994-0754 (Ct. Com. Pl. Cumb. Apr. 7, 2010),
appeals quashed, 818 MDA 2010 (order denying petition for appointment of substituted administrator
pro rem held not an appealable order), reargument and reconsideration denied, Order of Court, May 26,
2011, 818 MDA 2010 (Pa. Super. Ct.). The court notes that the Superior Court has jurisdiction over
appeals from final orders and those interlocutory orders which have been specifically provided for by
statute. See 42 Pa. C.S.A. §742. Under R.A.P. 341, an order is not fmal unless it disposes of all claims or
of all parties. )n a decedent's estate, "the confirmation of the final account of the personal representative
represents the final order, subject to exceptions being filed and disposed of by the court. See 20 Pa. C.S.
§3514." In re Estate of Barkowski, 2002 PA Super 57, ¶7, 794 A.2d 388, 389-90. Clearly, the order
appealed from in the present case does not dispose of all claims or pazties. The 2005 amendment to
Pennsylvania Rule of Appellate Procedure 342 provides non-exclusive grounds for appeals from orders of
the Orphans' Court, providing that, "[a] party may also take an appeal from an interlocutory order." In re
Estate of Cella, 2010 PA Super 146, 12 A.3d 374, 378, citing Pa. R.A.P. 342. The sole type of estate-
related order to which an interlocutory appeal as of right attaches is one that determines the "validity of a
will," which is inapplicable to the instant matter, and Appellant was not granted permission for appeal.
Pa. R.A.P. 311(a)(8); see Pa. R.A.P. 312. Rule 313 allows an appeal from a collateral order, which is
defined as "an order separable from and collateral to the main cause of action where the right involved is
too important to be denied review and the question presented is such that if review is postponed until final
judgment of the case, the claim will be irreparably lost." Pa. R.A.P. 313(axb). See also Pa. R.A.P. 313,
note; but see In re Georgianna, 312 Pa. Super 339, 458 A.2d 989 (1983), aff'd 504 Pa. 510, 475 A.2d
744; In re Estate of Sorber, 2002 PA Super 226, 803 A.2d 767, superseded by statute in In re Estate of
Cella, 2010 PA Super 146, 12 A.3d 374. If determined to be interlocutory, this would not be the first
attempt by Appellant to appeal an interlocutory order. See, e.g., Notice of Appeal, filed September 15,
2005 (appeal quashed by Superior Court by order dated October 28, 2005, at No. 1546 MDA 2005),
Notice of Appeal, filed January 14, 2009 (appeal quashed by Superior Court by order dated March 27,
2009, at No. 270 MDA 2009).
s [Robert M. Mumma, II (Appellant)] Notice of Appeal, filed March 14, 2011.
s Whether this seven-page statement of errors complained of on appeal comports with the conciseness
requirement of Pennsylvania Rule of Appellate Procedure 1925(bx4) is beyond the scope of this opinion.
2
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.
2. The disposition of the Motion via cone-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 Cods, 20 Pa. C.S.A. §3182(1), insofar as Lisa M. Morgan must
be removed as Co-Executrix because she has failed to perform a "duty imposed
by law," 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), insofar 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 Fiduciaries Code, 20 Pa. C.S.A. §3183, insofar 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.
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, insofar 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 parents' Estates and Trusts with
competing claims pending in both Pennsylvania and Florida.
But see Tucker v. RM. Tows, 2007 PA Super 352, 939 A.2d 343; Kanter v. Epstein, 2004 PA Super 470,
866 A.2d 394.
3
B. The record reveals the filing of Objections which specifically objected to
the over-funding of the Mazital Trust by Lisa M. Morgan as Co-Executrix,
and which also objected to the inclusions 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.
C. The record reveals these contentiously disputed assets have now become
part of the Estate of Bazbaza McK. Mumma (by virtue of their inclusion in
the over-funded Marital Trust as opposed to the Residuary Trust) and aze
now subject to the claims of the sole sibling beneficiary, Lisa M. Morgan,
who stands to benefit to the exclusion of the other beneficiazies.
D. At the January 28, 2011 hearing, Lisa M. Morgan confirmed that she had
filed an Inventory of the property of the Estate of Bazbaza 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 declazed 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 heazing, 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.
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 yeazs 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
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in -the maximizing of the value of the Marital trust and the allocating of
assets into said trust as opposed to the Residuary Trust.
I. The record reveals that until Mrs. Mumma'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 amongst the four sibling
beneficiaries, their interest 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.
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 conflict -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 parents' 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 arose subsequent to her appointment in Florida as the Executrix and
Trustee of the Estate of Barbara McK. Mumma -and being named the primary
beneficiary thereof.
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; Movant was further restricted from presenting
5
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.
[ZI 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(bx4), 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 parents' Estates and Trusts with estate litigation
pending in both Florida and Pennsylvania.10
This opinion in support of the court's refusal to disqualify and remove the
executrix/trustee is written pursuant to Pennsylvania Rule of Appellate Procedure
1925(a).
STATEMENT OF FACTS
Overview of early history of this case. The early history of the estate has been
related in the contexts of multiple prior appeals by Appellant to the Superior Court in
opinions authored by the Honorable George E. Hoffer, former President Judge, in an
opinion in 2000,11 and in opinions by the undersigned judge dated July 15, 2005,12
November 4, 2005,13 November 8, 2006,14 and December 8, 2008.'5
10 Robert M. Mumma, II's Concise Statement of Matters Complained of on Appeal Pursuant to PA.R.A.P.
1925(b), filed Apri16, 2011.
" See In re: Estate of Robert MMumma, No. 21-86-398 (Ct. Com. Pl. Cumb. Feb. 23, 2000) (Hoffer,
P.J.), appeal quashed, 776 A.2d 300 (2001) (table decision).
'Z See In re: Estate of Robert MMumma, In re: Opinion Pursuant to PA. R.A.P. 1925, No. 21-86-398 (Ct.
Com. Pl. Cumb. Jul. 15, 2005).
13 See In re: Estate of Robert MMumma, In re: Opinion Pursuant to PA. R.A.P. 1925, No. 21-86-398 (Ct.
Com. Pl. Cumb. Nov. 4, 2005).
14 See In re: Estate of Robert MMumma, In re: Opinion Pursuant to PA. R.A.P. 1925, No. 21-86-398 (Ct.
Com. Pl. Cumb. Nov. 8, 2006).
6
On January 6, 1999, Robert M. Mumma, II ...petitioned this court
for an accounting of the estate of his father, Robert M. Mumma, Sr.... ,
who died testate on April 12, 1986. The decedent's will and the codicil
thereto were probated on June 5, 1986. The will appoints Mrs. Barbara
McK. Mumma, decedent's widow [now also deceased], and Lisa M.
Morgan [decedent's daughter] ... as executrices thereof and as trustees of a
Marital Trust and a Residuary Trust created thereunder ....Under the will,
the presumptive remaindermen of the Trusts, if they survive Mrs. Mumma,
are the decedent's children: petitioner Robert M. Mumma, II, Linda M.
Mumma, Barbara M. Mumma and Mrs. Morgan. The decedent bequeathed
to his testamentary trustees an amount equal to fifty percent of his total
gross estate to be held in trust exclusively for the benefit of his wife during
her lifetime, the principal to be distributed to the decedent's children upon
her death. In addition, the decedent gave his residuary estate to his
testamentary trustees to be held in trust exclusively for the benefit of his
wife during her lifetime, the principal to be paid to the decedent's children
upon her death.
[Decedent's widow and Mrs. Morgan] filed interim accounts of their
acts and transactions as executrices and as trustees on August 9, 1991... .
[Robert M. Mumma, II,] disclaimed his interest under the will in
1987. In 1989, [former President Judge Harold E. Sheely ofJ this court
granted petitioner's motion to revoke his disclaimer. [Robert M. Frey,
Esq.], who was appointed guardian ad litem for the minor persons
interested in the Estate in 1988, appealed the revocation of the disclaimer.
The Superior Court ruled that Mr. Frey's representation of the estate with
respect to the revocation of the disclaimer was beyond the scope of his
limited appointment and therefore he lacked standing to appeal.
[Robert M. Mumma, II, eventually] ask[ed] for a complete
accounting of the Estate, including an accounting of the Trusts in which
[he] claim[ed] an interest. [Decedent's widow and Mrs. Morgan] claimed in
response that] they [could not] provide an accounting to [Robert M.
15 See In re: Estate of Robert MMumma, In re: Opinion Pursuant to PA. R.A.P. 1925, No. 21-86-398 (Ct.
Com. Pl. Cumb. Dec. 8.2008).
7
Mumma, II] because he [did] not have standing, and the issue of the
revocation of [his] disclaimer ha[d] not been fully litigated ....16
The position of the executrices/trustees was rejected by the court,
and an accounting by the executrices/trustees was ordered on February 23,
2000....'
Facts relevant to instant motion. A hearing on Appellant's most recent'$ Motion
for Disqualification and Removal of Lisa M. Morgan as Executrix and Trustee Due to
Conflict of Interest19 was held on January 28, 2011. At the hearing, which consumed the
better part of the day, Appellant made a presentation which was, at best, difficult to
follow and unfocused, and included profanity.20 Appellant called as witnesses his co-
beneficiaries/remaindermen, Linda M. Mumma,21 Barbara Mann Mumma,22 and
'6 In re Estate of Robert M. Mumma, No. 21-86-398, slip. op. at 2 (Ct. Com. Pl. Cumb. November 4,
2005), citingln re Estate of Robert M. Mumma, No. 2]-86-398, slip. Op. at 1-3 (Ct. Com. Pl. Cumberland
February 23, 2000) (Hoffer, P.J.) (citations omitted).
" In re Estate of Robert M. Mumma, No. 21-86-398, slip. op. at 2-3 (Ct. Com. Pl. Cumb. July 15, 2005),
citing In re Estate of Robert M. Mumma, No. 21-86-398, slip. op. at 1-3 (Ct. Com. Pl. Cumb. Feb. 23,
2000) (Hoffer, P.J.), appeal quashed, 776 A.2d 300 (2001) (table decision).
'$ According to Appellant, this is the third motion for disqualification and removal of the executrix that he
has filed in this court, and the undersigned is the third judge to heaz this motion. See N.T. 84; see also
Mot. for Disq., filed Sept. 9, 2010. However, the motion sub judice was the first of Appellant's motions
which sought removal of only Lisa M. Morgan. See Petition for Removal of Executors and Trustees of
Robert M. Mumma, II, filed Feb. 10, 1989 (Register of Wills Docket No. 1986-398, at 2); Petition for
Removal of Bazbaza McK. Mumma and Lisa M. Morgan as Executrices and Trustees, filed May 14, 2003;
Further Motion for Removal of Executrices and/or Trustees, filed May 30, 2008.
'9 Mot. for Disq., filed Sept. 9, 2010.
20 N.T. 74, Hearing, January 28, 2011.
21 See N.T. 9-22, Heazing, January 28, 2011.
ii See N.T. 26, Hearing, January 28, 2011. On September 17, 2010, Barbara Mann Mumma was
appointed successor co-executrix pursuant to the First Codicil to the Will of Robert M. Mumma due to
Barbara McK. Mumma's death.
8
Respondent Lisa M. Morgan,23 and also presented his own testimony in the form of a
monologue.24 No other witnesses were called by any of the interested parties.
In addition to the testimony presented at the hearing, Appellant supplemented the
record by introducing three exhibits, without objection, in the form of (1) Lisa M.
Morgan's Objections to Robert M. Mumma, II,'s Claims Against the Estate of Barbara
McK. Mumma, which had been filed in a court in Florida;25 (2) an Inventory of the
Florida Estate of Barbara McK. Mumma;26 and (3) evidence of a 1986 wire transfer from
Kim Co. to Robert M. Mumma, Sr.'s account in the amount of approximately
$180,000.00.27 Respondent, Lisa M. Morgan, introduced one exhibit, admitted over
objection,28 in the form of an email from Respondent's counsel to Appellant, which was
in response to a request for information about assets,29 and which stated, inter alia, that
23 See N.T. 34-55, Hearing, January 28, 2011.
za See N.T. 74-79, Hearing, January 28, 2011.
zs RMM1, admitted at Heazing, January 28, 2011. (The designation RMM was used to identify
Appellant's exhibits).
z6 RMM2, admitted at Hearing, January 28, 2011.
n RMM3, admitted at Hearing, January 28, 2011.
se The only objection Appellant raised as to the admission of Respondent's exhibit was based on
procedural grounds:
The Court: Is there any objection to Respondent's Exhibit 1, an e-mail ... ?
[Appellant]: I only have one because I remember one time I forgot to put it in and he
wouldn't let me do it.
The Court: You have an objection?
[Appellant]: So I have an objection because he didn't do it when he should have done
it.
The Court: Okay. Well, I will open the record for the purpose of admitting that item.
z9 N.T. 56, Hearing, January 28, 2011.
9
Respondent Lisa M. Morgan did not intend as trustee to sell or otherwise dispose of
assets in the trusts without obtaining prior approval of the Orphans' Court.ao
Although the hearing lasted several hours, the quantity of evidence relevant to the
instant motion is minimal in comparison to the extensive overall record in the case, and
may be summarized as follows:
Robert M. Mumma, Sr. died testate on April 12, 1986.31 According to the
provisions of his will, the decedent named his widow, Barbara McK. Mumma
(hereinafter "Mrs. Mumma"), and his youngest daughter, Lisa M. Morgan (hereinafter
"Respondent"), as Co-Executrices of his Estate and Co-Trustees of the Marital and
Residuary Trusts established under his wi11.32 From that time until her death on July 17,
2010, Mrs. Mumma acted as co-executrix of the will and co-trustee of the testamentary
trusts with Respondent.33 During this time, Mrs. Mumma and Respondent filed a series of
accounts of their actions with respect to the Estate of Robert M. Mumma, Sr. 34 and the
Marital and Residual Trusts established under the will, culminating in 2004 with a final
so Respondent's Exhibit 1, admitted at Hearing, January 28, 2011.
'~ See Letters Testamentary, Will Book No. 100: 388, Death Certificate of Robert M. Mumma, filed June
5, 1986; see Docket, Register of Wills, No. 21-86-398, at 1.
sa Last Will and Testament of Robert M. Mumma; Pursuant to a First Codicil to the Will executed on
October 12, 1984, Robert M. Mumma, Sr., appointed his oldest daughter, Barbara Mann Mumma, to
serve as successor Co-Executrix.
33 Mot. for Disq., ¶10, filed Sept. 9, 2010; 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, filed October 29, 2010 (hereinafter "An. to Mot. for Disq., filed October 29, 2010").
34 See Docket, No. 1986-00398 (Cumberland County).
10
account for the Estate,35 a fourth interim account for the Marital Trust, and a third interim
account for the Residual Trust.
In an attempt to advance the final settlement of the estate, which had been opened
in 1986, the undersigned judge appointed an auditor in the person of Taylor P. Andrews,
Esq.36 In 2008, at Appellant's request,37 and without objection of the auditor,38 the court
vacated the appointment of Attorney Andrews as auditor and appointed Cumberland
County attorney Joseph D. Buckley, Esq. in his stead.39 Beginning in April of 2009 and
through June 16, 2010, Mr. Buckley had presided over thirty-three days of hearings as to
the objections lodged by Appellant and Barbara M. Mumma to the accounts40 as well as
numerous motions filed by Appellant.
Subsequent to the death of Mrs. Mumma, Respondent filed final accounts for the
Trusts and petitioned for confirmation of those accounts.41 Appellant and Bazbaza Mann
ss Fourth and Final Account, filed January 8, 2004.
se Order of Court, January 6, 2005. The issues to be considered by the auditor included (a) whether the
conduct of the executrices/trustees warranted their removal; and (b) whether the validity of the revocation
of disclaimer by Robert M. Mumma, II, could continue to be litigated. Order of Court, March 11, 2005;
Order of Court, April 22, 2005. Within several weeks of Mr. Andrews's appointment, Robert M.
Mumma, II, filed a motion to have the auditor replaced, which was ultimately denied as devoid of merit
following a hearing. Motion to Recuse/Remove Attorney Taylor P. Andrews and To Appoint a New
Auditor, filed January 31, 2005. Eventually, however, Mr. Buckley replaced Mr. Andrews.
37 Further Motion for Vacation of Appointment of [the Court-Appointed Auditor] As Auditor Pursuant to
Orphans' Court order of October 3, 2007, filed May 30, 2008.
38 See N.T. 110, 114, Hearing, August 18, 2008.
s9 Order of Court, September 19, 2008.
ao Lisa M. Morgan filed additional accounts through July 17, 2010 with respect to both the Marital Trust
and Residual Trust. Appellant and Barbara Mann Mumma filed objections to the accounts. The objections
were heazd by Auditor Buckley in May 2011.
a' See First and Final Account with Schedule of Proposed Distribution -Residual Trust, filed September
10, 2010; First and Final Account with Schedule of Proposed Distribution -Marital Trust, filed
September 10, 2010.
11
Mumma again filed objections to the accounts,42 which were similarly referred to the
auditor.43
Following the death of Mrs. Mumma on July 17, 2010, Respondent became the
Executrix and primary beneficiary of the Estate of Barbara McK. Mumma (hereinafter
"Estate of Mrs. Mumma").aa On September 17, 2010,aS pursuant to the First Codicil to
the will of Robert M. Mumma, Sr., letters testamentary were issued to Bazbaza Mann
Mumma, and she was appointed as successor Co-Executrix46 of his estate to replace Mrs.
Mumma.a' As was evident at the January 28, 2011 hearing, and from his motion, hearing
brief, and post-hearing brief, Appellant contended that Respondent's dual roles as
executrix and primary beneficiary of the Estate of Mrs. Mumma and Co-Executrix and
trustee in the Estate of Robert M. Mumma, Sr., established a conflict of interest,48
resulting in a breach of Respondent's fiduciary duties through her failure "to avoid
placing herself in a position where her own interests ...enter into conflict - or may
az Statement of General Objections to Petition of Adjudication/Statement of Proposed Distribution of the
Marital Trust Under Will, filed November 22, 2010; Statement of General Objections to Petition of
Adjudication/Statement of Proposed Distribution of the Residual Trust Under Will, filed November 22,
2010; Objections to Account of the Residuary Trust Under the Will, filed November 22, 2010; Objections
to Account of the Marital Trust Under the Will, filed November 22, 2010.
a3 Order of Court, In re: Objections to Accounts, November 24, 2010.
as Mot. for Disq.,¶10, filed Sept. 9, 2010; N.T. 34-35, Hearing, January 28, 2011.
as N.T. 26, Heazing, January 28, 2011.
ae Although the First Codicil to the Will of Robert M. Mumma, Sr. appoints Barbara Mann Mumma as
successor Co-Executrix of the estate, Respondent remains the sole trustee of the marital and residual
trusts of Robert M. Mumma, Sr. N.T. 59.
a' Decree of Probate and Grant of Letters Testamentary, September 17, 2010; see Order of Court, In re:
Motion for Appointment of Barbara M. Mumma as Co-Executrix under the Decedent's Will and Codicil,
September 30, 2010; N.T. 26, Hearing, January 28, 2011.
48 Mot. for Disq., ¶12, filed Sept. 9, 2010; see An. to Mot. for Disq., ¶12, filed October 29, 2010.
12
possibly conflict -with the interests of the Estate and Residuary Trust and/or the said
beneficiaries thereof."a9
At the hearing, Respondent confirmed that she was the sole executrix and primary
beneficiary50 of the Estate of Mrs. Mumma in Florida,S1 and that she first became aware
of a certain trust that Mrs. Mumma had established prior to her death, and which
apparently ultimately inured to Respondent's benefit, shortly before Mrs. Mumma's
death.52 She testified that, pursuant to the mazital trust, "[Mrs. Mumma] had an absolute
right to afive-percent draw" to income,53 whether derived from the residuary or marital
trust.sa In response to Appellant's inquiry which related to an alleged overfunding of the
marital trust, Respondent testified that "[she] believed any overfunded money would go]
back into the residuary trust,"55 which had "the same beneficiaries as the marital trust."s6
49 Mot. for Disq., ¶13, filed Sept. 9, 2010.
so N.T. 49, Hearing, January 28, 2011.
s' N.T. 34, Hearing, January 28, 2011.
sz N.T. 50, Hearing, January 28, 2011.
ss The basis of Respondent's testimony regazding Mrs. Mumma's right to a "five-percent draw" is located
in Item Seventh of Mr. Mumma, Sr.'s will, which stated, in pertinent part:
"I give unto my wife a right ... to request annually in writing a distribution to her by the
trustees from the principal of [the Marital Trust] of up to Five Thousand ($5000.00)
Dollazs or up to five (5%) percent of the then principal of this Trust, whichever shall be
the greater, and the trustees, upon receipt of such writing, shall make payment thereof to
my wife during the calendaz year in which said writing was received. The annual request
by my wife is not mandatory, but shall be made, if desired, only by herself individually.
Last Will and Testament of Robert M. Mumma, Item Seventh, at p. 3.
sa N.T. 38, Hearing, January 28, 2011.
ss N.T. 37, Heazing, January 28, 2011.
s6 N.T. 38, Hearing, January 28, 2011.
13
Respondent further testified that certain shares of a corporation listed in an inventory of
the Estate of Mrs. Mummas~ were purchased by Mrs. Mumma prior to her death.58
On cross-examination, Respondent testified regarding the right to income Mrs.
Mumma was entitled to receive from the residual and marital trusts under the will of
Robert M. Mumma, Sr., as follows:
Q: Did that payment of income [from the residual and marital trusts] to
[Mrs. Mumma] cease as of [Mrs. Mumma's] death?
A: Yes.
Q: So no income on trust assets has been paid to her estate since her
death?
A: Correct.59
Q: And you have not purported as an executor of her estate to try to pull
down any assets from the trust, correct?
A: Correct. My understanding is that that benefit that [Robert M.
Mumma, Sr.] provided [to] her ceased upon her death as well. so
With respect to her administration of the estates since Mrs. Mumma's death,bl
Respondent testified that she had not engaged in any transaction that would transfer
s~ RMM2, admitted at Hearing, January 28, 2011.
sa N.T. 40, Hearing, January 28, 2011.
[Appellant] How did shares of Bobali Corporation, which [Robert M.
Mumma, Sr.] had no interest in, end up--
[Lisa M. Morgan] ...She bought some of Linda's shares, as you'll recall.
N.T. 39-40, Hearing, January 28, 2011.
s9 N.T. 55, Hearing, January 28, 2011.
60 N.T. 55, Hearing, January 28, 2011.
61 Appellant contended that Respondent's multiple roles since the death of Mrs. Mumma established
grounds for Respondent's disqualification and removal.
14
assets from her father's estate to her mother's estate, of which she was the primary
beneficiary:
Q: Have you engaged in any transaction in which an asset of the
residual trust or the marital trust under [Robert M. Mumma, Sr.]'s
will was transferred to your mother's estate?
A: No.
Q: Do you have any contemplated transactions to take any assets from
the trusts under [Robert M. Mumma, Sr.]'s will that are [i]n
adjudication here in Carlisle and transfer them to your mother's
estate?
A: No. 6z
Respondent's actions and intentions to which she testified at the hearing were further
supported by an August 27, 2010 communication sent by her to the Appellant and to Co-
Executrix Barbara Mann Mumma, which was in response to a request for information
about certain assets:
Ms. Morgan does not intend as trustee to sell or otherwise dispose of real
estate, stock or other noncash assets in the trusts ...without seeking and
obtaining prior approval of the Orphans' COUrt.63
As to the progress being made toward dissolving the trusts, Respondent testified that,
"(w]e have already obtained the real estate appraisals. We hired an appraisal agency, and
they concluded the appraisals, and time flies, but within the last month or so, we
forwarded [the appraisals] to the other beneficiaries."~ Additionally, Respondent
testified to her intentions and plans to properly dissolve the trusts as follows:
6z N.T. 55-56, Hearing, January 28, 2011.
es N.T. 57, Hearing, January 28, 2011; Respondent's Exhibit 1, admitted at Hearing, January 28, 2011.
64 N.T. 57, Hearing, January 28, 2011.
15
Q: What is your ultimate plan as to how to bring an end to the
administration of the two trusts under your father's will?
A: Once we have all of the values, it is my intent to seek from the
beneficiaries, if they have any specific interests in any particular
asset that they would like to have, and I believe ... [in] that October
meeting ... I asked them if they had any particular asset they were
interested in for cash or whatever, to give me some indication.
So my plan is to seek that and then to -based on that to
prepaze a plan of dissolution for presentation to the Court for Court
approval that it is okay, and then if the Court says it is okay, or the
Court makes an adjustment to it, to dissolve the trust on that basis.
Q: And to distribute the assets to the beneficiaries?
A: Corc,ect.bs
At the hearing66 and as evident in his Post-Hearing Briefb' Appellant contended that
Items Seventh,66 Eighth,69 and Tenth70 in the will of Robert M. Mumma, Sr., entitled him
to distribution of certain assets, and required Respondent to make prompt distribution at
the time of Mrs. Mumma's death." Item Seventh which, inter alia, established the
Marital Trust, stated:
Upon the death of my [Barbara McK. Mumma], the principal of this Trust,
as it is then constituted, shall be paid over by my surviving trustee unto my
children, ROBERT M. MLJMMA, II, BARBARA M. McCLURE, LINDA
6s N.T. 57-58, Hearing, January 28, 2011.
~ N.T. 64-66, Hearing, January 28, 2011.
67 Brief in Support of the Motion for Disqualification and Removal of Lisa M. Morgan as Executrix and
Trustee Due to Conflict of Interest, submitted February 22, 2011 (hereinafter "Appellant's Post-Trial
Brief, submitted Feb. 22, 2011").
6s Appellant's Post-Trial Brief, at 8, submitted Feb. 22, 2011.
6v Appellant's Post-Trial Brief, at 8, submitted Feb. 22, 2011.
70 Appellant's Post-Trial Brief, at 9, submitted Feb. 22, 2011.
'~ Appellant's Post-Trial Brief, at 9, submitted Feb. 22, 2011.
16
M. ROTH and LISA M. MUMMA, free of this Trust, share and share alike,
per stirpes and not per capita.72
Item Eighth which, inter alia, established the Residuary Trust, provided:
Upon the death of my [Barbara McK. Mumma], the principal of this Trust,
as it is then constituted, or, if [Barbara McK. Mumma] does not survive me,
upon my death, my residuary estate, shall be paid over by my surviving
trustee or by my successor Executor, as the case may be, unto my children,
ROBERT M. MUMMA, II, BARBARA M. McCLURE, LINDA M. ROTH
and LISA M. MLJNIlVIA, free of this Trust, share and share alike, per stirpes
and not per capita.
The Trustees shall be vested with reasonable discretionary powers and in
all matters not otherwise herein specifically provided, they shall exercise
their sound judgment and discretion in the performance of their duties
hereunder. They shall not be liable for any error of judgment provided that
such error is honestly made.73
Item Ninth, which, inter alia, defined the powers granted under the will to the
Trustees, indicated the decedent's intent to provide the estate's trustees with broad
discretion in distributing the estate's assets:
I give and grant unto my trustees ...the following powers, which
shall be construed broadly and which may be exercised by them in either or
both capacities, as in their discretion they deem advisable, in addition to
and not in limitation of their common law and statutory powers:74
(10) To receive or make distribution of any trust herein created, either in
money ar in kind, or partly in money and partly in kind. The judgment of
the trustees as to what shall constitute an equitable distribution or
apportionment shall be binding and conclusive upon the beneficiaries
'Z Last Will and Testament of Robert M. Mumma, Item Seventh, at p. 3.
73 Last Will and Testament of Robert M. Mumma, Item Eighth, at p. 4.
74 Last Will and Testament of Robert M. Mumma, Item Ninth, at p. 5.
17
hereof. Nothing herein contained, however, shall empower the trustees to
make distribution before the time or times specified herein.
(11) To pay, collect, compromise, sue for or contract any claim or other
matter, directly or indirectly, affecting the trusts.75
(18) As to each Trust created herein, to exercise all the powers granted
and all the duties imposed herein until such time after the termination of
that Trust as the property included in that Trust has been fully distributed,
and to do all other acts which, in their judgment, may be necessary or
appropriate for the proper or advantageous management, investment, or
disposition of any property included in any Trust created herein.76
Item Tenth, stated in its entirety, provided as follows:
The rights, titles, benefits, interests and estates of any beneficiary
hereunder, including beneficiaries under the Trusts herein created shall not
be subject to the rights or claims of his or her creditors not subject nor
liable to any process of law or court, nor subject to an assignment or
transfer, voluntary or involuntary, by a beneficiary hereof to another, and
all of the income, principal or other benefits from or under any Trust herein
created, or this Estate, shall be payable, and deliverable only, wholly
exclusively and personally to the designated beneficiaries hereunder at the
time the designated beneficiaries are entitled to take the same under the
terms of this instrument.~~
Appellant testified as to his opinion that Respondent's dual roles as Executrices of
two estates resulted in a disqualifying conflict of interest.78 At the hearing, Appellant
testified as to certain inactions of Respondent which had occurred prior the death of Mrs.
Mumma, and, therefore, prior to Respondent's appointment as executrix of the Estate of
75 Last Will and Testament of Robert M. Mumma, Item Ninth, ¶¶10-11, at p. 6-7.
76 Last Will and Testament of Robert M. Mumma, Item Ninth, ¶18, at p. 7.
"Last Will and Testament of Robert M. Mumma, Item Tenth, at p. 7-8.
78 See, e.g., N.T. 76, Hearing, January 28, 2011.
18
Mrs. Mumma.79 Appellant testified that it was his belief that "... [Mrs. Mumma and Lisa
M. Morgan] ...conspired with their attorneys to divert those assets from my father's
estate and to sell them,"80 and that certain stock in closely held corporations had been
improperly diverted to corporations controlled by Mrs. Mumma.81 Appellant conceded
that the bases for these allegations against Respondent had been referred to the court-
appointed auditor.82 In an attempt to guide Appellant's monologue for purposes of
providing him an opportunity to fully state the bases for his positions, the undersigned
judge questioned Appellant as to what actions or inactions of Respondent he was
complaining about:
The Court: And what else did they do that you think was wrong, and
specifically what did Ms. Morgan do?
[Appellant]: Ms. Morgan stood by and participated in all of this knowing
that they were -that they were setting up another trust, a third
trust for her benefit, and solely her benefit.
The Court: Okay. What other conflict do you see?
[Appellant]: The conflict is we have raised claims in Florida about -and
we have litigation up here about this. I don't think Mr.
Buckley ever dreamed that they had diverted these assets
from the trusts my father set up to a new trust solely for the
benefit of Lisa Morgan and her family, but that is what they
have done, and they kept it a secret, and Morgan, Lewis &
Bockius did it for them.
And I have an objection to Morgan, Lewis &Bockius
representing her in this issue because they were my attorneys
'9 See e.g., N.T. 75-78, Hearing, January 28, 2011.
80 N.T. 76, Hearing, January 28, 2011.
81 N.T. 77, Heazing, January 28, 2011.
e2 N.T. 77, Hearing, January 28, 2011.
19
at the time they did this, they put this deal together, and they
should have told me about it and they should have told me
about the conflict.
The Court: What other conflict do you see that Ms. Morgan has in
serving in these dual capacities?
[Appellant]: Well, because the capacity she is in gives her the ability to
decide what assets she is going to get, and as part of this plan
she is going to distribute assets to everybody, and she is the
only one that knows anything about them. And that is not
what my father's intention was. It is not what his will calls
for. It is not equal shares, it is share and share alike.
Everybody's share is supposed to be the same, not a
combination of some people get more cash, some people get
more real estate. Everybody gets a quarter of what is in those
trusts, and that was the intention when they formed the
tenancy in common.83
On cross-examination conducted by Co-Executrix Barbara Mann Mumma, who
was similarly acting pro se at the hearing, Appellant admitted that .Respondent had
recently completed conducting certain appraisals, that copies of those appraisals were in
Appellant's possession, and that he did review those appraisals, albeit shortly before the
January 28, 2011 hearing.84 On cross-examination conducted by Respondent's counsel,
Appellant further testified that he objected to his mother's alleged misappropriation of
certain assets that Appellant believed she was not entitled to under his father's will:
Q: You understood that [Mrs. Mumma] said she had a right [to scoop
out certain corporate assets]?
A: Well, first of all, [Mrs. Mumma] violated the shareholder's
agreements.
as N.T. 77-79, Hearing, January 28, 2011.
u N.T. 82, Hearing, January 28, 2011.
20
L ~
Q: ...You understood that [Mrs. Mumma] had purported to take that
stock out and transfer it to the marital trust, and then to scoop it out
and transfer it to herself in her own name...?
A: Yes, but I didn't know what percentage or which share [Mrs.
Mumma] took.
Q: ...But you knew then also that [Mrs. Mumma] regarded that as her
personal property?
A: ... I know [Mrs. Mumma] sold a lot of it to CRH for a lot of money
like tens of millions of dollars, and I don't know where that ended
up, but it wasn't [Mrs. Mumma's] stock. That was stock that my
grandfather gave to me and my sisters, and I can prove that.85
At the conclusion of the January 28, 2011 hearing, the record was declared closed
and the parties were directed to submit briefs on the issues that they perceived to exist
regarding the motion for disqualification.S6 By order of court dated March 4, 2011,87 the
court denied the Motion for Disqualification and Removal of Lisa M. Morgan as
Executrix and Trustee Due to Conflict of Interest.88 Robert M. Mumma, II, filed his
appeal from the order denying his disqualification motion on March 14, 2011.89
DISCUSSION
Statement of Law. The removal of an executrix or trustee is controlled by the
Pennsylvania Probate, Estates and Fiduciaries Code, which sets forth the grounds for
ss N.T 80-81, Hearing, January 28, 2011.
~ Order of Court, In re: Motion for Disqualification and Removal of Lisa M. Morgan as Executrix and
Trustee Due to Conflict of Interest, January 28, 2011.
$~ Although the order begins, "AND NOW, this 4~' day of Mazch, 2011, upon consideration of the Motion
for Disqualification and Removal of Lisa M. Morgan as Executrix and Trustee Due to Conflict of Interest,
the order was entered on the docket on Mazch 8, 2011. See Docket, No. 1986-00398, at page 59.
ea Order of Court, In re: Motion for Disqualification and Removal of Lisa M. Morgan as Executrix and
Trustee Due to Conflict of Interest, March 4, 2011.
89 Notice of Appeal, filed Mazch 14, 2011.
21
removing a decedent's representative.90 Section 3182 of the Code sets forth the general
rule that the Orphans' Court has "exclusive power to remove a personal representative
when he," inter alia, "is ...mismanaging the estate ... or has failed to perform any duty
imposed by law" or "when, for any other reason, the interests of the estate are likely to be
jeopardized by his continuance in office." 20 Pa.C.S. §3182 (1), (5). Courts in this
Commonwealth have repeatedly recognized that removal of an executor or trustee is a
drastic remedy that should be undertaken only when the estate or trust is endangered and
intervention is absolutely necessary to protect the property of the estate or trust. See In re
Estate of Pitone, 489 Pa. 60, 68, 413 A.2d 1012, 1016 (1980), quoting Scientific Living,
Inc. v. Hohensee, 440 Pa. 280, 295, 270 A.2d 216, 224 (1970). To justify the removal of a
personal representative, the proof of the cause for such removal must be clear and
convincing. See Hurley's Estate, 313 Pa. 53, 55, 169 A.81, 82 (1933); see also In re
Estate of Lux, 480 Pa. 256, 269-71, 389 A.2d 1053, 1059-60 (1978); Glessner's Estate,
343 Pa. 370, 22 A.2d 701 (1941); Estate of Westin, 2005 PA Super 158, 874 A.2d 139.
The Fiduciaries Code specifically requires proof of a substantial reason for removal in the
form of real danger of loss to the Estate before an executor may be removed, and imposes
upon a petitioner the burden of proving the removal necessary by clear and compelling
evidence. Mathues's Estate, 322 Pa. 358, 359, 185 A. 768, 769 (1936); see In re White,
506 Pa. 218, 484 A.2d 763 (1984); Estate ofDiMarco, 435 Pa. 428, 437, 257 A.2d 849,
853 (1969); Hurley's Estate, 313 Pa. at 55, 169 A. at 82 (1933).
90 See Act of June 30, 1972, P.L. 508, No. 164, §2, 20 Pa. C.S. §3182.
22
The removal of an executor personally chosen by the testator is "[p]articularly
drastic," as the testator's "appointment represents an expression of trust and confidence."
In re Estate of Pitone, 489 Pa. at 68, 413 A.2d at 1016; see also In re Estate of Croessant,
482 Pa. 188, 193, 393 A.2d 443, 446 (1978) ("proof of the need for this [drastic] remedy
must be clear ...where [the fiduciary] enjoyed the special confidence of the decedent").
"A testator has, as a property right, the privilege and power to place the management of
his estate in a selected person as a condition of his bounty." Mathues' Estate, 322 Pa.
358, 359, 185 A. 768, 769 (1936). Under some circumstances, a conflict of interest may
be so apparent from the inherent nature of the circumstances as to justify the court's
exercise of its discretion to remove a testator's chosen personal representative. See In re
Estate of Westin, 2005 PA Super 158, 874 A.2d 139; In re Dobson's Estate, 490 Pa. 476,
417 A.2d 138 (1980).
Application of Law to Facts. Although Appellant raises concerns as to possible
impropriety on the part of Respondent in regard to her ability to transfer assets from one
estate, in which she is a co-beneficiary, to another, in which she is the primary
beneficiary, Appellant has failed to support his allegations with clear and compelling
evidence of misconduct. Accordingly, the court cannot conclude that the estate or trusts
are endangered.
Cases cited by Appellant for the proposition that courts in this Commonwealth
may remove an executrix by inferring a conflict of interest from the circumstances91 are
distinguishable on their facts from the present case. In re Rafferty's Estate, 377 Pa. 304,
s' See Appellant's Post-Trial Brief, at 16, submitted Feb. 22, 2011.
23
v
105 A.2d 147 (1954) presents an entirely different scenario from that found herein. In
Rafferty, a dispute existed between a decedent's son who served as administrator of the
decedent's estate92 and other heirs to the estate. The administrator-son claimed several
potential assets of the estate as his own property which other beneficiaries of the estate
disputed. The Court determined a clear conflict of interest existed and upheld the removal
of the personal representative in such circumstances holding, "The personal interest of a
fiduciary being in conflict with that of the estate ...constitute[s] sufficient cause for
removal." In re Rafferty's Estate, 377 Pa. at 305-06, 105 A.2d at 148.
Similarly distinguishable is In re Costello's Estate, 28 Fiduc. Rep. 208 (C.C.P.
Mont. Co. 1978).93 In Costello, an attorney was appointed executor of two estates for
which he had drafted wills. A dispute had arisen as to the validity of the will in the first
estate, which provided grounds for a potential claim brought by the second estate. The
orphans' court ultimately determined that it would be improper to allow the attorney to
act as "judge and jury between [the] two estates" by simultaneously attacking one estate
and defending another. Id.
Furthermore, In re Estate of Gadiparthi, 158 Pa. Commw. 537, 632 A.2d 942
(1993), involved a fiduciary's outright assertion against the estate which he was
administering, that he, rather than the estate, owned certain property. In Gadparthi, the
court ordered the removal of the administrator after he challenged the decedent's
vz Rafferty dealt with the removal of an administrator rather than atestator-chosen personal representative.
See In re Ra„~erty Estate, 377 Pa. at 305, 105 A.2d at 148.
vs Appellant cited to Costello Estate in his brief in support, and attached a photocopy of the same thereto.
See Brief in Support of the Motion for Disqualification and Removal of Lisa M. Morgan as Executrix and
Trustee Due to Conflict of Interest, p. 16, submitted February 22, 2011.
24
• ~ ++
ownership of property titled in decedent's name. In In re Dobson's Estate, 490 Pa. 476,
417 A.2d 138 (1980), an inherent conflict of interest was found where an executor sold
estate property, without an independent appraisal, to a corporation of which his wife was
an officer, director, and shareholder. T'he Dobson court stated that, "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" and that
"[s]uch a conflict of interest may also justify removal of the executor." In re Dobson's
Estate, 490 Pa. 476, n.6, 417 A.2d 138, n. 6 (citations omitted).
Finally, the Superior Court in In re Estate of Westin, 2005 PA Super 158, 874
A.2d 139, held that the undisputed fact that executor's law firm had embezzled more than
$370,000.00 in estate funds created a clear conflict of interest for the executor, as the
executor would be in the position of representing the estate in a claim against himself and
his law firm for recovery of the estate funds. Westin, 2005 PA Super 158, ¶9, 874 A.2d
139, 143.
In the case sub judice, the court was not persuaded that Respondent's positions
pursuant to her father's and mother's wills presented on their face a conflict of interest so
severe as to warrant her disqualification and removal from her positions pursuant to her
father's will. Nor was the court, having heard the testimony of the Respondent, persuaded
that she had assisted in any improper transfers or planned to make such transfers in the
future. Finally, the court was not disposed to circumvent the on-going auditor's process
in this case by removing factual issues from his consideration that had been assigned to
him. For these reasons, it is believed that Appellant's Motion for Disqualification and
25
J ~ ~1
Removal of Lisa M. Morgan as Executrix and Trustee Due to Conflict of Interest was
properly denied.
Robert M. Mumma, II
840 Market Street
Ste. 33333
Lemoyne, PA 17043
Robert M. Mumma, II
6880 S.E. Harbor Circle
Stuart, FL. 34996
Robert M. Mumma, II
P.O. Box F
Grantham, PA 17027
Brady L. Green, Esq.
Morgan, Lewis & Bockius, LLP
1701 Market Street
Philadelphia, PA 19103
No V. Otto, III, Esq.
George B. Faller, Jr. Esq.
Martson Law Offices
10 East High Street
Carlisle, PA 17013
Barbara Mann Mumma
541 Bridgeview Drive
Lemoyne, PA 17043
Linda M. Mumma
P.O. Box 370
26
BY THE COURT,
. ORPHANS' COURT DIVISION
COURT OF COMMON PLEAS OF
In Re: ROBERT M MUMMA CUMBERLAND COUNTY
PENNSYLVANIA
NO. 86-0398
CERTIFICATE OF SERVICE OF ORDER
ORDER DATE: 06/01/11
JUDGE'S INITIALS:
TIME STAMP DATE: 06/01/11
IN ~; OPINION PURSUANT TO PA RAP 1925
SERVICE TO: RO ERT MLTMMA II - FORIDA LEMOYNE GRANTHAM
B Y GREEN LINDA MUMMA
B ARA MANN MUMMA GEORGE FALLER JOSEPH BUCKLEY
METHOD OF MAILING:
ENVELOPES PROVIDED BY:
® USPS
^ RRR
^ HAND DELIVERED
^ OTHER
MAILED: 06/01/11
SERVICE TO:
METHOD OF MAILING:
^ PETITIONER
® JUDGE
^ CLERK OF ORPHANS COURT
ENVELOPES PROVIDED BY:
^ USPS
^ RRR
^ HAND DELIVERED
^ OTHER
MAILED:
^ PETITIONER
^ JUDGE
^ CLERK OF ORPHANS COURT