HomeMy WebLinkAbout02-05-13J. A33409%11
2012 PA Super 41
IN RE: ESTATE OF: ROBERT M. MUMMA, IN THE SUPERIOR COURT OF
DECEASED, PENNSYLVANIA
~.:
APPEAL OF: ROBERT M. MUMMA, II No. 481 MD~2~11 ~ ~ m
~~ _~ ~~
Appeal from the Order entered March 4, 2~1. ~ '~' ~"'
Court of Common Pleas, Cumberland Coin ~ ~ v, ~ v
Orphans' Court at No. 21-86-398 o .~ ~ ~
BEFORE: DONOHUE, OLSON and STRASSBURGER*, JJ. ° ~ r- ~ ~
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OPINION BY DONOHUE, J.: FILED FEBRUAR~22, 2'12
Appellant, Robert M. Mumma, II ("Mumma II"), appeals the order of
the Orphan's Court dated March 4, 2011, denying his Motion for
Disqualification and Removai of Lisa M. Morgan ("Morgan") as Executrix and
Trustee Due to Conflict of Interest (hereinafter, the "Motion for
Disqualification").1 For the reasons that follow, we affirm the trial court's
order.
Robert M. Mumma, Sr. ("Mumma Sr.") died on April 12, 1986. In his
will, he established two trusts, a marital trust and a residual trust. He
named his wife, Barbara McK. Mumma ("Mrs. Mumma") and Morgan, one of
1 The trial court's order is appealable under the collateral order doctrine.
Pa.R.A.P. 313; see, e.g., In Estate of Georgians, 458 A.2d 989, 991 (Pa.
Super. 1983) ("We find that an order denying a petition .for removal of an
executor is a final order proper for appeNate review."), afFrmed, 504 Pa.
510, 475 A.2d 744 (1984); Matter of Estate of Veloft, 529 A.2d 525, 527
(Pa. Super. 1987) (order denying petition for removal of executrix "is
appealable under the collateral order doctrine").
*Retired Senior Judge assigned to the Superior Court. \~
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his daughters, as the two trustees of both trusts and co-executrixes of his
estate. On July 10, 2010, Mrs. Mumma died, and Morgan then became the
sole trustee of the two Mumma, Sr. trusts. Mrs. Mumma named Morgan as
the executrix of her estate and principal beneficiary of her will, and Morgan
also serves as the sole trustee of a trust Mrs. Mumma established during her
lifetime, of which Morgan is the sole beneficiary.
In 2004, Mrs. Mumma, and Morgan filed a final accounting for Mumma,
Sr.'s estate, including a fourth interim account for the marital trust and a
third interim account for the residual trust. In response, Mumma II and his
sister, Barbara M. Mumma (~~B.M. Mumma"), flied numerous objections to
the accounts, and Mumma II also filed numerous motions. Beginning in
April of 2009 and continuing through June 16, 2010, acourt-appointed
auditor presided over thirty-three days of hearings in an effort to resolve
these objections and motions. Following Mrs. Mumma's death in July 2010,
Morgan filed final accounts for the Mumma, Sr. trusts and petitioned the trial
court for confirmation. Mumma II and B.M. Mumma again filed numerous
objections, which were in turn referred to the court-appointed auditor, who
conducted more hearings. On September 17, 2010, pursuant to the First
Codicil to Mumma, Sr.'s will, B.M. Mumma became the successor co-
executrix of his estate to replace Mrs. Mumma.
On September 9, 2010, Mumma II filed his Motion for Disqualification.
Therein, he acknowledges that this constitutes the fourth motion/petition he
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has filed since 1989 seeking the removal of Morgan as the executrix of
Mumma, Sr.'s estate and trustee of the marital and residual trusts.Z On
]anuary 28, 2011, the trial court conducted an evidentiary hearing on the
Motion for Disqualification. In its written opinion pursuant to Pa.R.A.P.
1925(a), the trial court provided the following review of that hearing:
As was evident at the January 28, 2011 hearing, and from his
[Motion for Disqualification], hearing brief, and post-hearing
brief, [Mumma II] contended that [Morgan's] dual roles as
executrix and primary beneficiary of the Estate of Mrs. Mumma
and Co-Executrix and trustee in the Estate of [Mumma, Sr.],
established a conflict of interest, resulting in a breach of
[Morgan's] fiduciary duties through her failure "to avoid placing
herse{f in a position where her own interests .enter into
conflict - or may possibly conflict -with the interests of the
Estate and Residuary Trust and/or the said beneficiaries
thereof."
At the hearing, [Morgan] confirmed that she was the sole
executrix and primary beneficiary of the Estate of Mrs. Mumma
in Florida, and that she first became aware of a certain trust that
Z Mumma II's litigiousness with respect to his father`s estate is not limited
to motions/petitions to disqualify Morgan, as he has filed multiple lawsuits
(both in Cumberland County and in Florida) seeking to obtain ownership of
various assets. Since the late 1980s, he has also filed numerous motions,
applications, and petitions in the trial court in opposition to Morgan's efforts
to resolve estate issues. To this end, he has frequently appealed the orders
of the trial court to this Court. See, e.g., Notices of Appeal filed September
15, 2005 (1546 MDA 2005) and January 14, 2009 (270 MDA 2009) -- both
of which were subsequently quashed by Orders of this Court. In fact, the
present appeal was docketed consecutively with two additional appeals by
Mumma II involving estate matters - (1) an appeal of the trial court`s denial
of a praecipe for compulsory substitution of successor {305 MDA 2011}; and
(2) an appeal of the trial court's denial of his petition to re-open a summary
judgment in a related case entered against him in December 2006 (354 MDA
2011). This panel denied relief to Mumma II in both of these cases via short
memorandum decisions.
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Mrs. Mumma had established prior to her death, and which
apparently ultimately inured to [Morgan's] benefit, shortly before
Mrs. Mumma's death. She testified that, pursuant to the marital
trust, "[Mrs. Mumma] had an absolute right to a five-percent
draw" to income, whether derived from the residuary or marltal
trust. In response to [Mumma II's] inquiry which related to an
alleged overfunding of the marital trust, [Morgan] testified that
"[she] believed any overfunded money would go] back into the
residuary trust," which had "the same beneficiaries as the
marital trust."
[Morgan] further testified that certain shares of a corporation
listed in an inventory of the Estate of Mrs. Mumma were
purchased by Mrs. Mumma prior to her death. On cross-
examination, [Morgan] testified regarding the right to income
Mrs. Mumma was entitled to receive from the residual and
marital trusts under the will of [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
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 [Mumma, Sr.] provided [to] her ceased
upon her death as well.
With respect to her administration of the estates since Mrs.
Mumma's death, [Morgan] testified that she had not engaged in
any transaction that would transfer assets from her father's
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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 [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
[Mumma, Sr's] will that are [i]n adjudication
here in Carlisle and transfer them to your
mother's estate?
A: No.
[Morgan's] actions and intentions to which she testified at the
hearing were further supported by an August 27, 2010
communication sent by her to [Mumma II] and to Co- Executrix
[B.M. 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.
As to the progress being made toward dissolving the trusts,
[Morgan] 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, [Morgan] testified to her intentions
and plans to properly dissolve the trusts as follows:
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 ali of the values, it is my intent
to seek from the beneficiaries, if they have any
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specific interests in any
they would like to have,
that October meeting . .
had any particular asset
in for cash or whateve
indication.
particular asset that
and I believe .,, [in]
. I asked them if they
they were interested
r, to give me some
So my plan is to seek that and then to -
based on that to prepare 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: Correct.
At the hearing and as evident in his Post-Hearing Brief, [Mumma
II] contended that Items Seventh, Eighth, and Tenth in the will
of [Mumma, Sr.], entitled him to distribution of certain assets,
and required [Morgan] 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 [Mrs. Mumma), the principal of
this Trust, as it is then constituted, shall be paid over
by my surviving trustee unto my children, [MUMMA
II], [B.M. MUMMA], LINDA M. ROTH and LISA M.
MUMMA, free of this Trust, share and share alike, per
stirpes and not per capita.
Item Eighth which, inter alia, established the Residuary Trust,
provided:
Upon the death of [Mrs. Mumma], the principal of
this Trust, as it is then constituted, or, if [Mrs.
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, [MUMMA II], [B.M.
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MUMMA], LINDA M. ROTH and LISA M. MUMMA, 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 pertormance of
their duties hereunder. They shall not be liable for
any error of judgment provided that such error is
honestly made.
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:
(10) To receive or make distribution of any trust
herein created, either In money or 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 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.
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(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 ail other acts which, in their
judgment, may be necessary or appropriate far the
proper or advantageous management, investment,
or disposition of any property included in any Trust
created herein.
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.
[Mumma II] testified as to his opinion that [Morgan's] dual roles
as Executrices of two estates resulted in a disqualifying conflict
of interest. At the hearing, [Mumma II] testified as to certain
inactions of [Morgan] which had occurred prior to the death of
Mrs. Mumma, and, therefore, prior to [Morgan's] appointment as
executrix of the Estate of Mrs, Mumma. [Mumma II] testified
that it was his belief that "...[Mrs. Mumma and Morgan] ...
conspired with their attorneys to divert those assets from my
father's estate and to sell them," and that certain stock in closely
held corporations had been improperly diverted to corporations
contro{led by Mrs. Mumma. [Mumma II] conceded that the
bases for these allegations against [Morgan] had been referred
to the court-appointed auditor. In an attempt to guide [Mumma
II's] monologue for purposes of providing him an opportunity to
fully state the bases for his positions, the undersigned judge
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questioned [Mumma II] as to what actions or inactions of
[Morgan] he was complaining about:
Court: And what else did they do that you
think was wrong, and specifically
what did [Morgan] do?
[Mumma II]: [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.
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 [the court-appointed auditor]
ever dreamed that they had diverted
these assets from the trusts my
father set up to a new trust solely for
the benefit of [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 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.
Court: What other conflict do you see that
[Morgan] has in serving in these dual
capacities?
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[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.
On cross-examination conducted by Co-Executrix [B.M.
Mumma], who was similarly acting pro se at the hearing,
[Mumma II] admitted that [Morgan] had recently completed
conducting certain appraisals, that copies of those appraisals
were in [Mumma II's] possession, and that he did review those
appraisals, albeit shortly before the January 28, 2011 hearing.
On cross-examination conducted by (Morgan's] counsel,
[Mumma II] further testified that he objected to his mother's
alleged misappropriation of certain assets that [Mumma II]
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.
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...?
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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
fora 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.
Trial Court Opinion, 6J1/11, at 12-21.
By order dated March 4, 2011, the trial court denied the Motion for
Disqualification. This timely appeal followed, in which Mumma II raises the
following six issues for our consideration:
1. Whether [Morgan] is subject to removal as Co-
Executrix and Trustee of [Mumma, Sr.'s] Estate and
Trusts due to a conflict of interest under 20
Pa.C.S.A. § 3182(1)i3~ because she has failed to
perform a ~~duty imposed by law," i.e., her fiduciary
s § 3182. Grounds for removafl
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
pertorm any duty imposed by law; or
(5) when, far any other reason, the interests of
the estate are likely to be jeopardized by his
continuance in office.
20 Pa.C.S.A. § 3182.
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"duty of loyalty" to the other three sibling
beneficiaries.
2. Whether [Morgan] is subject to removal as Co-
Executrix and Trustee due to a conflict of interest
under the "for any other reason" provision of 20
Pa.C.S.A. § 3182(5) because she is serving in the
simultaneous and dual roles of Executrix and Trustee
in both parents' estates and trusts, with pending
litigation involving both parents' estates and trusts in
Pennsylvania and Florida probate courts.
3. Whether the Orphan's Court committed an error of
law or an abuse of discretion for not summarily
removing [Morgan] as Co-Executrix of [Mumma,
Sr.'s] estate under 20 Pa.C.S.A. § 3183i4~ insofar as
removal was "necessary to protect the rights of the
a § 3183. Procedure for and effect of removal
The court on its own motion may, and on the petition
of any party in interest alleging adequate grounds for
removal shall, order the personal representative to
appear and show cause why he should not be
removed, or, when necessary to protect the rights of
creditors or parties in interest, may summarily
remove him. Upon removal, the court may direct the
grant of new letters testamentary or of
administration by the register to the person entitled
and may, by summary attachment of the person or
other appropriate orders, provide .for the security
and delivery of the assets of the estate, together
with all books, accounts and papers relating thereto.
Any personal representative summarily removed
under the provisions of this section may apply, by
petition, to have the decree of removai vacated and
to be reinstated, and, if the court shall vacate the
decree of removal and reinstate him, it shall
thereupon make any orders which may be
appropriate to accomplish the reinstatement.
20 Pa.C.S.A. § 3183.
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parties in interest" -same being the rights of the
other three sibling benel=lciaries.
4. Whether the Orphans' Court committed an error of
law or an abuse of discretion for not removing
[Morgan] as Trustee of [Mumma, Sr.'s] trusts under
20 Pa.C.S.A. § 7766(1) 5~ insofar as removal "best
serves the interests of the beneficiaries of the trust"
because she committed a serious breach of trust by
adamantly refusing to make any distributions of
[Mumma's] trusts as provided in Items Seventh and
Eighth of [Mumma, Sr.'s] will.
5. Whether the Orphans' Court committed an error of
law or an abuse of discretion for not removing
[Morgan] as Trustee of [Mumma, Sr.'s] trusts under
20 Pa.C.S.A. § 7766(4) insofar as removal "best
serves the interests of the beneficiaries of the trust"
s § 7766. Removal of trustee - UTC 706
(b) When court may remove trustee.--The court may
remove a trustee if it finds that removal of the
trustee best serves the interests of the beneficiaries
of the trust and is not inconsistent with a material
purpose of the trust, a suitable cotrustee or
successor trustee is available and:
(1) the trustee has committed a serious
breach of trust;
(4) there has been a substantial change of
circumstances. A corporate reorganization of an
institutional trustee, including a plan of merger or
consolidation, is not itself a substantial change of
circumstances.
20 Pa.C.S.A. § 7766(b).
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due to the substantial change of circumstances and
dual capacities as Executrix and Trustee of both
parents` estates and trusts with pending litigation in
both Pennsylvania and Florida probate courts.
6. Under Pennsylvania decisional law, whether sufFicient
cause for removal exists because the Executrix's
personal interests are in conflict with the interests of
[Mumma, Sr.'s] estate as well as the other three
sibling beneficiaries of the Estate and Trusts.
Mumma II's Brief at 4-5.
While listed as six distinct issues, Mumma II essentially presents a
single issue for our consideration, namely whether Morgan's dual roles in
connection with the estates of Mumma, Sr, and Mrs. Mumma constitute a
conflict of interest requiring her disqualification and removal. If such a
conflict of interest exists, some or all of the statutory provisions cited by
Mumma II (including ZO Pa.C.S.A. §§ 3182(1), 3182(5), 3183, 7766(1), and
7766(4)), as well as Pennsylvania decisional law would require Morgan's
disqualification and removal. The removal of an executrix is a matter vested
in the sound discretion of the trial court, and thus we will disturb such a
determination only upon a finding of an abuse of that discretion. Matter of
Estate of Frey, 693 A.2d 1349, 1352 (Pa. Super.), appeal denied, 549 Pa.
717, 701 A.2d 578 (1997).
Section 3182 of Pennsylvania's Probate, Estates and Fiduciaries Code
provides that Orphans' Courts have the "exclusive power to remove a
personal representative" when he/she "mismanage[s] the estate ... or has
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failed to perform any duty imposed by law" or "when, for any other reasons,
the interests of the estate are likely to be jeopardized by his continuance in
office." 20 Pa.C.S.A. § 3182(1}, (5). Our Supreme Court has recognized,
however, that "the removal of a trustee is a drastic remedy, and the need
for such action must be clear." In re White, 506 Pa. 218, 223, 484 A.2d
763, 765 (1984). As stated in White, consideration of removal under
section 3182 "must be viewed in conjunction with the settlor's expressed
confidence in the trustee, evinced by the trustee's appointment" and "where
a settlor appoints a particular trustee, removal should only occur when
required to protect the trust property." Id. Finally, ordinarily removal
cannot occur unless some fiduciary duty has been violated, and the "mere
displeasure of a beneficiary" is not a sufficient reason for removal." Id.
In this case, Mumma, Sr. and Mrs. Mumma both selected Morgan to
serve as executrix/trustee of their estates and trusts. A testator's selection
of a particular person to serve as their personas representative "represents
an expression of trust and confidence," and removal of a personally chosen
individual is thus considered to be a "drastic remedy" that requires clear and
convincing evidence of a substantial reason for removal. In re Estate of
Pitone, 489 Pa. 60, 68, 413 A.2d 1012, 1016 (1980); In re Estate of Lux,
480 Pa. 256, 269-71, 389 A.2d 1053, 1059-60 (1978); White, 506 Pa. at
223, 484 A.2d at 765.
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Mumma II essentially contends that Morgan has violated fiduciary
duties and endangered the assets of Mumma, Sr.'s estate and trusts in two
ways.6 First, Mumma II contends that the trust documents provide that
upon the death of Mrs. Mumma, the principal of the trusts is to be divided
equally and distributed to the four siblings, but that Morgan has refused to
make any such distribution. Mumma II's Brief at 21. Second, Mumma II
claims that rather than distributing his father's estate and trust assets to the
four siblings, Morgan has transferred them to the estate of Mrs. Mumma,
including to a trust established by Mrs. Mumma during her lifetime. Id. at
26 ("However, instead of share and share alike amongst the four sibling
beneficiaries, their interest in the assets have been transferred to the Florida
Estate and Trust where only one sibling, [Morgan], is named as
beneficiary.").
The trial court determined, however, and based upon our review of the
record on appeal we agree, that insufficient evidence exists to support either
of these accusations. With respect to the distribution of assets to the four
sibling beneficiaries, the trial court determined that Morgan's testimony
established that she is completing the process of obtaining valuations of the
e Mumma II also mentions pending litigation between himself and the estate
as a basis for a conflict of interest. Mumma II's Brief at 25. He fails,
however, to mention any specific litigation or otherwise develop an
argument on this basis for Morgan's removal. Accordingly, this argument is
waived for purposes of appeal. Commonwealth v, Spotz, -- Pa. --, --, 18
A.3d 244, 281 n.21 (2011).
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estate and trust assets and has asked the beneficiaries if they have any
preferences regarding the receipt of particular assets or cash, and that she
intends to make an equitable distribution of the assets to the beneficiaries
after collecting this information. We agree with the trial court that this
approach does not constitute any breach of fiduciary duty. Mumma, Sr.
specifically provided Morgan, in her role as his personal representative when
making an equal distribution among the four sibling beneficiaries, with the
power to decide how to "make distribution of any trust herein created, either
in money or in kind, or partly in money and partly in kind." Item Ninth (10),
quoted supra. Mumma, Sr. further indicated that the "judgment of the
trustees as to what shall constitute an equitable distribution or
apportionment shall be binding and conclusive upon the beneficiaries
hereof." Id.
With respect to the accusation that Morgan has transferred assets
from her father's estate and trusts into the estate and trust of Mrs. Mumma
(for the purpose of misappropriating them for herself as primary beneficiary
thereof), the trial court concluded, and we agree, that no substantial
evidence of record supports this contention. Mumma, Sr. directed that Mrs.
Mumma was entitled to request and receive an annual distribution of the
income of the two trusts, and up to $5,000 (or up to 5% of the then
principal) from the principal of his marital trust. At the evidentiary hearing,
Morgan testified that these distributions ceased at the time of her mother's
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death, and that if there were any discrepancies in the amounts that had
been transferred to Mrs. Mumma during her lifetime, appropriate
adjustments and correcting transfers could be made. In testimony that the
trial court clearly found credible, Morgan testified that Mumma II's
accusations were simply not true, as since the time of her death there have
been no transfers of principal from Mumma, Sr.'s estate and trusts to Mrs.
Mumma's estate and trust.
As discussed hereinabove, our Supreme Court has made clear that the
drastic remedy of removal of an appointed personal representative generally
requires actual proof of a breach of a fiduciary duty. White, 506 Pa. at 223,
484 A.2d at 765. The trial court found, based upon the evidence presented
at the hearing on January 28, 2011, that Mumma II failed to present
sufficient evidence to support his accusations of wrongdoing by his sister.
Mumma II`s displeasure with Morgan's performance, without more, does not
suffice to necessitate the removal of the individual specifically chosen by
both father and mother to serve as executrix of their estates and trustee of
their trusts. Accordingly, no relief is due.
Alternatively, Mumma II argues that Morgan's dual roles in connection
with the estates and trusts of Mumma, Sr. and Mrs. Mumma constitute an
inherent conflict of interest requiring her removal without the need for proof
of bad faith or fraudulent intent. Mumma II's Brief at 26. Mumma II cites
several appellate court decisions that support this general principle,
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including In re Rafferty's Estate, 377 Pa. 304, 105 A.2d 147 (1954); In
re: Estate of Gadiparthi, 632 A.2d 942 (Pa. Commw. 1993); and In re
Estate of Westin, 874 A.2d 139 (Pa. Super. 2005).' These cases present a
prima facie conflict with cases cited hereinabove, including for example
White, in that they hold that a personal representative may be removed in
the absence of any proof of actual wrongdoing. To the contrary, in these
cases, our courts have held that the conflict of interest itself justifies the
removal, without the need for proof of wrongdoing by the personal
representative. See, e.g., Zn re Dobson's Estate, 490 Pa. 476, 483 n.6,
417 A.2d 138, 142 n.6 (1980).
Careful review of these cases, however, reveals that they have no
application in this case, as they all involve intractable conflicts of interests
between the representatives' personal financial interests and those of the
~ Mumma II cites an additional decision of our Supreme Court, In re
Dobson's Estate, 490 Pa. 476, 417 A.2d 138 (1980). In Dobson's Estate,
an executor sold estate property without any independent appraisal or other
valuation process (and without prior court approval) to a corporation in
which his wife was an officer, director, and significant shareholder. The
issue addressed in Dobson's Estate, however, was whether or not the
executor should have been assessed a surcharge for his negligence in
connection with his treatment of the tax consequences of the sale. Id. at
484, 417 A.2d at 142. The Supreme Court's decision expressed no opinion
regarding whether or not the executor should have been removed from his
position as a result of a conflict of interest. Id. ("Therefore, because the
executor erred in calculating the value of decedent's shares and thereby
obtained a price below the value of the shares, we must reverse the decree
of the court en banc, vacate the decree of the auditing judge and remand for
determination of the proper surcharge to be imposed on the executor.").
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J. A33009/11
estate and its beneficiaries. In Rafferty's Estate, the administrator of his
father's estate claimed that potential assets of the estate (including the
proceeds from a retirement disability fund) belonged not to the estate (and
its five sibling beneficiaries), but rather to himself personally. Rafferty`s
Estate, 377 Pa. at 304-06, 105 A.2d at 148. Similarly in Gadiparthi, a
husband administrator of his wife's estate challenged her ownership of
property titled in her name, claiming that she owned the property as his
agent. Gadiparthi, 632 A.2d at 944. And in Westin, the executor`s law
firm had embezzled more than $370,000 in estate funds, thus putting the
executor in the position of representing the estate in a lawsuit against
himself (and his law partners) for recovery of the estate funds. Westin,
874 A.2d at 143.
The present case does not present a similar conflict of interest, namely
one in which Morgan's personal financial interests directly conflict with the
interests of her father's estates and trusts. While Morgan is the executrix
and trustee in connection with both her father's and mother's estates and
trusts and is also a beneficiary of both, this does not, of itself and without
another more specific conflict, present the sort of Intractable conflict of
interest that would necessarily prevent her from carrying out her fiduciary
duties in all of her various roles. Based upon the record on appeal, she has
performed all of the required functions as executrix and trustee of Mumma,
Sr.'s estate and trusts, including the filing of appropriate interim and final
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J. A33009/11
accountings. Mumma II's objections in those matters have been referred to
a court-appointed auditor for resolution. Moreover, as discussed
hereinabove, we agree with the trial court's conclusion that Morgan has not
engaged in any obvious wrongdoing or improper transfers of assets
(including indirectly to her mother's estate and/or trust).
For these reasons, we will not disturb the trial court's decision to deny
Mumma II's Motion for Disqua{ification.
Order affirmed.
Strassburger, J. files a Concurring Opinion.
Judgment Entered.
Deputy Prothonotary
Date: February 22, 2012
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NON-PRECEDENTIAL DECISION -SEE SUPERIOR COURT I.O.P 65.37
IN RE: ESTATE OF: ROBERT M. MOMMA, IN THE SUPERIOR COURT OF
DECEASED, PENNSYLVANIA
APPEAL OF: ROBERT M. MOMMA, II No. 481 MDA 2011
Appeal from the Order entered March 4, 2011,
Court of Common Pleas, Cumberland County,
Orphans' Court at No. 21-86-398
BEFORE: DONOHUE, OLSON and STRASSBURGER*, ]J.
CONCURRING OPINION BY STRASSBURGER, J.:FILED FEBRUARY 22, 2012
I join the Majority opinion. I agree with the Majority's conclusion that
the trial court properly denied Mumma II's Motion for Disqualification and
Removal of the executrix. I also agree that, pursuant to Matter of Estate
of Ve/ott, 529 A.2d 525, 527 (Pa. Super. 1987), this Court is constrained to
consider this order a collateral order subject to Immediate appeal.
However, I feel compelled to express my disagreement with the case
law on the issue that an order denying the removal of an executor is a
collateral order subject to immediate review.l In this case, Mumma II
1 "A collateral order is 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 in the case, the claim will be irreparably lost." Pa.R.A.P. 313(b).
This Court has offered the following analysis as to why the elements for a
collateral order are met for an order denying the removal of an executor:
*Retired Senior Judge assigned to the Superior Court.
J. A33009/11
concedes that this petition is the fourth time since 1989 he has asked the
First, it is an order which finally determines a claimed
right; i.e. the right of a beneficiary or beneficiaries to a
competent and trustworthy executor who will carefully and
faithfully carry out the intentions of the testator and also use its
best efforts to maximize and fairly distribute the estate to the
devisees and legatees. By denying the petition the lower court
has made a determination that this right has not been infringed,
just as an order granting the petition would, of course, indicate
an opposite conclusion. Such a determination is not the end of
the litigation since it is part of the administration, accounting
and distribution of the decedent's estate. It is, however, a
separate and collateral order in that the executor, while
pertorming an important administrative and fiduciary function,
can be replaced by another party. The administration of the
estate, while delayed, would continue.
Second, the right is one which is too important to be
denied review. Neither party contends anything to the contrary.
When the assets of an estate are subject to possible harm or
diminution because of acts or omissions of an executor the
courts are the appropriate forum to decide what action is
necessary to remedy that harm. While the trial courts, because
of the experience acquired in handling estate cases, are
eminently capable of deciding questions of removal, such
questions involve serious issues bearing upon the property in
question, the reputation of the executor and also the interest of
the state in assuring orderly administration and in properly
ascertaining and collecting revenues. We find these issues
important enough to merit appellate review.
Third, in many, if not all, cases the right will be irreparably
lost if review is deferred. [Where the executor is an individual,]
deferral of review may mean that the assets of the estate will be
dissipated or destroyed in the interim. Thus, the right would be
lost because surcharge would be nothing more than a hollow
remedy.
In re Georgiana's Estate, 458 A.2d 989, 991 (Pa. Super. 1983), affirmed
475 A.2d 744 (Pa. 1984) (per curiam).
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l
J. A33009/11
trial court to remove Morgan as executrix. Furthermore, acourt-appointed
auditor has conducted over 33 days of hearings on the accounting of this
estate. Allowing this order to be appealable wastes judicial resources and
promotes the type of piecemeal litigation recently frowned upon by our
Supreme Court. See Vaccone v. Sykes, 899 A.2d 1103, 1107 (Pa. 2006)
("[W]e believe that it has become necessary to remember the purpose of the
finality rule, which is to avoid piecemeal litigation, and not to become
swallowed up in its exceptions."). Afterall, "[i]t is more important to prevent
the chaos inherent in bifurcated, trifurcated, and multifurcated appeals than
it is to correct each mistake of a trial court the moment it occurs."
Calabrese v. Collier Twp. Mun. Auth., 248 A.2d 236, 238 (Pa. 1968)
(O'Brien, J. dissenting).
In my view, the development of the case law in this area betrays a
serious lack of trust in our trial bench.
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Y
J. A33008/11
NON-PRECEDENTIAL DECISION -SEE SUPERIOR COURT I.O.P 85.37
ROBERT M. MOMMA, II, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant .
. R-r w ~ m
rn
THE ESTATE OF ROBERT M. MOMMA, ~ ~ v
THE EXECUTRIXES OF THE ESTATE OF ~
n
z us cr, c o
ROBERT M. MOMMA, LISA M. MORGAN ~
v n ~, '~
~ ''^ .;~
AND BARBARA MCK. MOMMA, THE o °c ~'' ~ c>
RESIDUARY TRUST UNDER THE WILL OF ~ ~ ~ "~
~
ROBERT M. MOMMA, AND THE ~ w r"
''~
TRUSTEES OF THE RESIDUARY TRUST :
UNDER THE WILL OF ROBERT M. ;
MOMMA, LISA M. MORGAN AND
BARBARA MCK. MOMMA, .
Appellees No. 305 MDA 2011
Appeal from the Order entered January 18, 2011,
Court of Common Pleas, Cumberland County,
Civil Division at No. 2004-6183
BEFORE: DONOHUE, OLSON and STRASSBURGER*, J].
MEMORANDUM BY DONOHUE, ].: FILED: December 20, 2011
Appellant, Robert M. Mumma, II ("Mumma", appeals from the order
dated January 18, 2011 denying his Praecipe for Compulsory Substitution of
Successor. For the reasons that follow, we affirm.
This appeal is just one phase of a lengthy and litigious family dispute
that has been ongoing since the death of Mumma's father in April 1986. For
present purposes, it is sufficient to relate that in January 2005, Mumma filed
an Amended Complaint alleging that the co-executors of his father's estate
(his mother, Barbara McK. Mumma ("Barbara', and one of his sisters, Lisa
*Retired Senior Judge assigned to the Superior Court.
]. A33008/11
M. Morgan ("Morgan")) had failed to recognize the enforceability of a "Share
Restrictive Agreement" between himself and his father related to a
corporation (HI-Spec, Inc.) they allegedly owned together. In an opinion
and order dated December 7, 2006, the trial court granted summary
judgment against Mumma.
In July 2010, Mumma's mother died. On December 13, 2010, Mumma
filed a praecipe to compel the substitution of Morgan, in her capacity as the
personal representative of Barbara's estate, as Barbara's successor in this
litigation. By order dated January 14, 2011, the trial court denied Mumma's
request for substitution because "this matter is no longer pending." Order,
1/14/11. In Its subsequent Rule 1925(a) written opinlon, the trial court
summarily noted that it denied Mumma's request "[s]ince this case was long
over." Trial Court Opinion, 4/20/11, at 1.
This appeal followed, in which Mumma raises the following two issues
for our determination:
1. Whether the subject Order declaring that the "matter
is no longer pending" can be reconciled with the
docket as maintained by the Prothonotary given that
(i) the deceased fiduciary Defendant continued to be
listed as a named Defendant in the action at the time
of [Mumma's] lower court fllings, (fi) the
Prothonotary was listing this matter as an active
case on Its docket and had not officially entered any
judgment on the docket, (iil) the Petition to Re-Open
the Case /Application to Strike Off Void Judgment
was filed on the docket on January 18, 2011 PRIOR
to the entry of the subject Order denying the
-2-
~. A33oos~~~
Praecipe for Compulsory Substitution which was
entered later on that date.
2. Given that [Mumma's] Praecipe for Compulsory
Substitution pursuant to Pa.R.C.P. 2352(b) set forth
ali of the requisite material facts warranting said
substitution, whether the {ower court committed an
error of law and an abuse of discretion in refusing to
summarily issue an Order substituting [Morgan] to
her capacity as Personal Representative of the Estate
of [Barbara] as the successor of the said deceased
fiduciary Defendant as a party to pending litigation.
Appellant`s Brief at 4.
We will address both of these issues together, as they present
essentially the same question, namely the propriety of the trial court's denial
of Mumma's request far substitution of Morgan as Barbara's successor. Such
requests for substitution are governed by Pa.R.C.P. 2352, which provides as
follows:
Rule 2352. Substitution of Successor
(a) The successor may become a party to a pending
action by filing of record a statement of the material
facts on which the right to substitution is based.
(b) If the successor does not voluntarily become a
party, the prothonotary, 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.
Pa.R.C.P. 2352.
By Its terms, a successor may only become a party to a pending
action. Accordingly, the issue presented here is whether or not this action
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]. A33008/11
was pending at the time that the trial court dented Mumma's request for
substitution of party. We agree with the trial court that this action was
clearly not pending at that time. In this case, the trial court entered an
order on December 7, 2006, granting summary judgment against Mumma.
After Mumma filed a motion for reconsideration, vn February 26, 2007 the
trial court reaffirmed its grant of summary judgment. On October 31, 2008,
this Court dented Mumma's appeal, afflrmfng the trial court's grant of
summary judgment. On ]uly 2, 2009, the Supreme Court of Pennsylvania
dented Mumma's petition for allowance of appeal. As of ]uly 2, 20f]9, then,
this matter was no longer "pending" for purposes of Ruie 2352, as Mumma
had no further recourse. The grant of summary judgment puts that party
"out of court." JeMlsrls v. Aennsy/vents, 537 A.2d 355, 356 (1988).
Mumma's arguments to the contrary lack any merit. Mumma first
argues that Barbara (the deceased) continued to be listed as a named
defendant on the docket. While this is certainly true, it has no bearing on
whether the action remained pending at the time of Mumma's request for
substitution. Simply put, Barbara continued to be listed as a named
defendant in a case that was no longer pending.
Second, Mumma argues that the Prothonotary continued to list the
case as active and that no judgment had been entered on the docket.
Regardless of how the Prothonotary formally fisted the case, it no longer
remained pending for purposes of Rule 2352
The grant of summary
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J. A33008/11
judgment entitles the party or parties to a judgment as a matter of law.
Pa.R.C.P. 1035.2. Summary judgment constitutes "a flnai and appealable
Order," which remains final unless or until it is reversed on appeal.
Burkhart v. Brockway Glass Co., 507 A.2d 844, 845 (Pa. Super. 1986);
Shsl1!`er v. Smlth, 543 Pa. 526, 530,6 73 A.2d 872, 874 (1996).
Finally, the pendency of the Petition to Re-Open the Case / Apptkatton
to Strike Off Vold Judgment at the time that the trial court denied Mumma's
request for substitution does not alter the result here. The mere filing of a
petition to re-open a case, or an application to strike a judgment does not
convert a case from final to pending status. To the contrary, only the
grantln9 of such a petftlon or application would accomplish this result.
Here, the trial court denied Mumma`s Petition/Application. Moreover, as the
Appellees to this appeal aptly point out, Mumma's flung of his
Petition/Application was, in and of itself, an acknowledgement that the trial
court's grant of summary judgment, as affirmed on appeal, was flnai and
that the matter was closed and no longer pending absent some new action
by the trial court. Appellees Brief at 5.
Order affirmed.
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J. A33008/il
Judgment Entered.
Deputy Prothonotary
Date: December 20, 2011
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J. A33007/11
NON-PRECEDENTIAL DECISION -SEE SUPERIOR COURT I.O.P 65.37
ROBERT M. MUMMA, II and , IN THE SUPERIOR COURT OF
HIGH-SPEC INC., A FLORIDA CORP., PENNSYLVANIA
v.
THE ESTATE OF ROBERT M. MUMMA,
THE EXECUTRIXES OF THE ESTATE OF ~ ~ ~ ~
rn
ROBERT M. MUMMA, THE RESIDUARY ~ -~'~ rn ~ o
TRUST UNDER THE WILL OF ROBERT ,
~ yx,, r ~' ~ c
M. MUMMA, AND THE TRUSTEES OF ~ ~ ~ v, ~ ~
THE RESIDUARY TRUST UNDER THE ~ ~
WILL OF ROBERT M. MUMMA, LISA M.
O
c ~ '~ 3
~ -.
MORGAN and BARBARA MCK. MUMMA, 'ti ~ ``' r m
~ w ~~
APPEAL OF: ROBERT M. MUMMA, II No. 354 MDA 2011
Appeal from the Order entered January 20, 2011,
Court of Common Pleas, Cumberland County,
Civil Division at No. 20004-6283
BEFORE: DONOHUE, OLSON and STRASSBURGER*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED: December 20, 2011
Appellant, Robert M. Mumma, II ("Mumma"), appeals from the order
dated January 20, 2011 denying his petition to re-open a summary
judgment entered against him in December 2006 or, in the alternative, an
application to strike said summary judgment. For the reasons that follow,
we affirm.
Although this appeal constitutes one phase of a lengthy family dispute
that has been litigated extensively since the death of Mumma's father in
April 1986, a detailed review of the entire factual and procedural history is
unnecessary for present purposes. It will suffice to relate that in January
*Retired Senior Judge assigned to the Superior Court.
J. A33007/11
2005, Mumma filed an Amended Complaint alleging that the co-executors of
his father's estate (his mother and one of his sisters) had failed to recognize
the enforceability of a "Share Restrictive Agreement" between himself and
his father related to a corporation (Hi-Spec, Inc.) they allegedly owned
together.
In an opinion and order dated December 7, 2006, the trial court
granted summary judgment against Mumma for two reasons. First, the trial
court concluded that the issues raised in Mumma's Amended Complaint had
already been litigated to final judgment in the Nineteenth Judicial Circuit in
and for Martin County, Florida,i and thus it was required to acknowledge the
Florida judgment pursuant to the Full Faith and Credit Clause of the United
States Constitution (Article IV, Section 1). Trial Court Opinion, 12/6/06, at
5-6 ("So, `a final judgment in one State, if rendered by a court with
adjudicatory authority over the subject matter and the persons governed by
the judgment, qualifies for recognition throughout the land. For claim and
issue preclusion purposes, in other words, the judgment of the rendering
1 The Florida court decided, in relevant part, that "[Mumma's] continued
attempts to re-litigate the shareholder status of the Plaintiffs based on
allegations of an existing shareholder's agreement are barred by res
judicata, estoppel by judgment, and judicial waiver .... Hi-Spec, Inc. is
hereby dissolved as a result of the shareholders being deadlocked and the
illegal distribution of a major corporate asset to [Mumma]." Trial Court
Opinion, 12/6/06, at 5.
-2-
J. A33007/11
State gains nationwide force."') (quoting Ferre// v. Commonwea/th, 783
A.2d 891, 895 (Pa. Commw. 2001)).
Second, the trial court found that Mumma's Amended Complaint was
barred by Pennsylvania's four-year statute of limitations for actions on a
contract (42 Pa.C.S.A. § 5525). Id. at 6. The trial court held that "[u]nder
the express terms of the alleged agreement, [Mumma] was required to
enforce delivery' of the shares to himself within 90 days after his father's
estate was opened. The instant action was commenced more than 18 years
after his father's death and at least 15 years after the cause of action
accrued." id.
On January 18, 2011, Mumma filed a Petition to Re-Open the Case, or,
in the alternative, an Application to Strike Off Void Judgment, in which he
asserted that various 'after-discovered" evidence required a re-opening of
the case or a striking of the summary judgment - as this after-discovered
evidence showed that the prior summary judgment was the result of either a
fraud on the court and/or intrinsic fraud. Just two days later, on January 20,
2011 the trial court entered an order denying Mumma's Petition/Application.
The trial court did not issue a written opinion or state in its order any
reasons for the denial, and did not issue an order pursuant to Pa.R.A.P.
1925(b) requesting a concise statement of issues complained of on appeal.
On January 28, 2011, Mumma filed a motion for reconsideration, and on
February 3, 2011, the trial court denied the motion to reconsider. This
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]. A33007/11
appeal followed, in which Mumma raises the following two issues for our
consideration
1. Whether the lower court should have entertained and
granted the Petition to Re-Open the Case/Application
to Strike Off Void Judgment given that said
requested relief set forth a detailed summary of
procedural and factual developments that had
transpired subsequent to the entry of the prior
summary judgment, and further identified certain
after-discovered evidence and other indicia that the
prior summary judgment was procured by fraud
upon the court and/or intrinsic fraud.
2. Whether the lower court erred in denying the Petition
to Re-Open the Case/Application to Strike Off Void
Judgment in aone-sentence Order without providing
an opportunity for an evidentiary hearing wherein
[Mumma] could present evidence, exhibits, and
other evidence to support thereof, especially where
there was never any prior evidentiary hearing held
on the merits of this matter.
Mumma's Brief at 4.
We begin with Mumma's application to strike off the judgment. A
petition to strike a judgment is a common law proceeding which operates as
a demurrer to the record. Resolution Trust Corp. v. Copley Qu-Wayne
Associates, 546 Pa. 98, 106, 683 A.2d 269, 273 (1996) (citing Beth/ehem
Steel Corporation v. Tri State Industries, Inc., 434 A.2d 1236 (1981)).
A petition to strike a judgment may be granted only for a fatal defect or
irregularity appearing on the face of the original record. Id. (citing Franklin
Interiors v. Wa// of Fame Management Company, Inc., 510 Pa. 597,
511 A.2d 761 (1986) and Par/iament Industries, Inc. v. Wi//iam H.
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J. A33007/11
Vaughan & Co., Inc., 501 Pa. 1, 459 A.2d 720 (1983)). The trial court
may not rely on evidence de hors the record when striking off a judgment.
Id. at 109, 683 A.2d at 275.
In the present case, Mumma's application to strike off the prior
summary judgment was based entirely on "after-discovered evidence," i.e.,
new evidence not contained in the original record. Accordingly, the trial
court clearly did not err in refusing to strike off the prior summary
judgment.
Turning to the trial court's denial of the petition to re-open the prior
summary judgment, our Supreme Court, in In re 1.E.F., 487 Pa. 455, 409
A.2d 1165 (1979), said "[t]he general rule is that `a court may, in its
discretion, re-open the case ... but such matters are peculiarly within the
sound discretion of the trial court...."' Id. at 458, 409 A.2d at 1166. A case
should ordinarily be re-opened "where it is desirable that further testimony
be taken in the interest of a more accurate adjudication" and where an
honest purpose would be justly served without unfair disadvantage.
Beneshunas v. Independence Life and Acc. Ins. Co., 512 A.2d 6, 9 (Pa.
Super. 1986) (quoting Thomas v. Waters, 350 Pa. 214, 38 A.2d 237
(1944)); In re 1.E.F., 487 Pa. at 459, 409 A.2d at 1166. Atrial court's
decision to re-open a judgment will not be disturbed except upon an abuse
of discretion. Beneshunas, 512 A.2d at 9.
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). A33007/11
We find no abuse of discretion in this case. We have reviewed the
"after-discovered" evidence summarized by Mumma and find it to be
primarily a summary of the' continuing litigation between the family
members since the entry of summary judgment in 2006, much of which has
been prosecuted ad infinitum by Mumma himself. Even to the extent that
we were to find that the "after-discovered" evidence bears some relation to
the issues originally set forth in the Amended Complaint, this evidence in no
way provides a basis for re-opening the summary judgment -since the
summary judgment was based upon (1) the Florida court's determination
that ail issues have been litigated to conclusion and/or waived, and the
obligation to give full, faith, and credit to the Florida judgment, and (2) the
trial court's conclusion that the Amended Complaint is time-barred under
Pennsylvania's statutes of limitations. Mumma's "after-discovered" evidence
merely represents his attempt to restart litigation on the issues raised in his
Amended Complaint, but he ignores that those issues have been litigated to
conclusion in Florida and are time-barred in Pennsylvania.
For the same reasons, Mumma is not entitled to relief on his second
issue on appeal. Because the evidence he now proffers does nothing to
change the fatal procedural defects to continued litigation over the Amended
Complaint, an evidentiary hearing was unnecessary and a waste of valuable
judicial resources. We thus find no abuse of discretion in this regard.
Order affirmed.
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J. A33007/11
Judgment Entered.
Deputy Prothonotary
Date: December 20, 2011
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