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HomeMy WebLinkAbout06-27-13 (2) 1 .f RECORDED 9, FICE OF REGISTER Or WILLS IN THE COURT OF COMMON PLEAS OF��&iR7.'mm. AD48 COUNTY, PENNSYLVANIA CLERIC Or O„rHANS' COURT In re: ESTATE OF ROBERT M. CUMBERLA14D CO., PA MUMMA, Deceased. ORPHANS' COURT DIVISION No. 21-86-398 CONCISE STATEMENT OF ERRORS COMPLAINED OF ON APPEAL BY APPELLANT BARBARA M. MUMMA 1. This Concise Statement of Errors Complained of on Appeal is filed and served pursuant to the Order of Court dated June 6, 2013 and entered June 7, 2013, and pursuant to Pa. R.A.P. 1925(b)(4). 2. Pursuant to Pa. R.A.P. 1925(b)(4)(vi), Appellant Barbara M. Mumma hereby prefaces this Statement with the following explanation. The Order from which Ms. Mumma appeals was dated May 6, 2013 but was entered May 10, 2013 (Docket Nos. 714-715)(hereinafter "the Order"). The Order was entered by the Court without further opinion, and without hearing or argument, after the Court received an Interim Report and Request for Order entered April 26, 2013 (but dated April 24, 2013) from Auditor Joseph B. Buckley, Esquire (Docket No. 708). Moreover, despite the existence of Local Rule 8.7-2 of the Cumberland County Orphans' Court Rules ("C.C.O.C.R."), the Court �WG5559L1 `87 entered the Order prior to the expiration of twenty (20) days from the parties' receipt of the notice of filing of said report. Timely objections to the Auditor's Interim Report were filed and served by Appellant Barbara M. Mumma (Docket No. 716). In addition, Appellant Barbara M. Mumma timely filed a Motion to Vacate or, in the Alternative, to Reconsider the Order, along with a second order entered that same date (Docket No. 713). However, because the Court had not ruled on the Motion to Vacate or, in the Alternative, to Reconsider the Order, as the time for appeal approached expiration, Appellant had no alternative but to file and serve a timely Notice of Appeal on June 4, 2013. The order of court directing the filing an service of this Concise Statement of Errors Complained of on Appeal followed. 3. The errors complained of on appeal by Appellant Barbara M. Mumma are as follows: a. Whether the Trial Court erred in entering the Order prior to the time expressly set forth in C.C.O.C.R. Local Rule 8.7-2 for the expiration of the date on which timely objections to the report were to be filed. Local Rule 8.7-2, which is published on the Court's own website, expressly provides: "Objections to the auditor's - 2 - report shall be filed with the Clerk within twenty days after receipt of the notice of filing of said report." The error is not harmless, because Appellant Barbara M. Mumma filed and served timely objections to the auditor's report. (Docket No. 716). See, e.g., Anthony Biddle Contractors, Inc, v. Preet Allied American Street, L.P. 28 A.3d 916, 925 (Pa. Super. 2011)("the provisions of local rules of procedure must also be applied and interpreted in a manner that is consistent with the fairness mandated by Pa, R.C.P. 126").' See also Perez v. Pritz, 67 York 47, 48 (C.P. York Co. 1953)("There can be no use whatever in making local rules for the regulation of the practices of the Court unless we adhere to them."); United States v. Diaz-Yillatone, 874 F2d 43, 46 (ls` Cir. 1989)("Let us be perfectly clear. . . . Once local rules have been promulgated, lawyers and their clients have a right to place reasonable reliance on them,") b. Whether the Trial Court's error in entering the Order expressly set forth in C.C.O.C.R, Local Rule 8.7-2 for the expiration of the date on which timely objections to the report were to be filed Although Pa. R.A.P. 1925(b)(3) mandates that citation to authorities shall not be required, Appellant Barbara M. Mumma will include several illustrative examples of pertinent authorities. - 3 - constitutes a denial of due process of law in violation of the Pennsylvania and United States Constitutions. It is axiomatic that due process of law requires that litigants be provided a "fair opportunity to be heard." City of Philadelphia v. Fraternal Order of Police Lodge No. 5, 985 A.2d 1259, 1269 (Pa. 2009) There, the Supreme Court of Pennsylvania held, in the context of an arbitration proceeding, that "all decision-making tribunals, including arbitrators, must conduct proceedings in accordance with the mandates of due process under the Pennsylvania and United States Constitutions." Id. at 1266. Here, despite the express provisions of the local rules of court, Appellant Barbara M. Mumma had no opportunity to be heard at all with respect to her objections to the auditor's report, because the Trial Court entered the Order prematurely and without waiting to determine whether timely objections would be filed.Z See, e.g., Byard F. Brogan, Inc. 2 Appellant Barbara M. Mumma recognizes that the Trial Court has expressed frustration with this estate matter recently, in connection with a filing by another party. See, e.g., Docket No. 721 (denying a recent petition and stating "the resolution of this 1986 estate having already been delayed beyond all reason"). However, Appellant Barbara M. Mumma respectfully submits that the length that this matter has been pending ought not to be interpreted as depriving her of her right to timely file objections to an auditor's report as provided in the Local Rules of Court and to have a fair opportunity to be heard with respect to her Objections. - 4 - v. Holmes Electric Protective Co. of Philadelphia, 460 A.2d 1093, 1096 (Pa. 1983)("A lawsuit is a judicial process calculated to resolve legal disputes in an orderly and fair fashion. It is imperative that the fairness of the method by which the resolution is reached not be open to question."). c. Appellant Barbara M. Mumma respectfully submits that the Trial Court erred as set forth above by entering the Order without waiting to determine whether timely Objections to the auditor's report would be filed. Thus, the Trial Court entered the Order without considering or deciding both timely and meritorious Objections which were filed on behalf of Appellant Barbara M. Mumma. In the event that the Trial Court or, on appeal, the Superior Court of Pennsylvania, chooses to reach the merits of the timely Objections filed on behalf of Appellant Barbara M. Mumma, then Appellant Barbara M. Mumma hereby incorporates herein her Objections as filed (Docket No. 716) in order to preserve the issues set forth therein in the event that the Superior Court of Pennsylvania reaches the substantive issues set forth in the Objections. Mindful of the mandates of Pa. R.A.P. - 5 - 1925(b)(4)(iii-v), Appellant Barbara M. Mumma will merely summarize the Objections herein. (1) The Court erred in entering the Order because the Interim Report recommended excessive and premature relief beyond that sought by or warranted by the Petition which led to the Interim Report, recommending that the trustee, Lisa Morgan, be authorized and directed to proceed with a plan of liquidation of the remaining assets of the trust. As set forth in the Objections, the Court erred in entering the Order and the auditor erred because there remain objections i pending to the accountings filed which have not been ruled upon, because the auditor (and now the Court as well) appears to authorize the trustee to perform actions which are outside the jurisdiction of the Court because they affect corporate entities not before the Court, and because the Court now appears to have authorized the trustee to perform acts and liquidate assets which were far beyond the relief requested in the petitions and, in at least one instance, was expressly disclaimed by counsel for the trustee. - 6 - (2) The Court erred in entering the Order because there was no need shown in the auditor's interim report or in the petition for liquid assets beyond those already received by the Trust following the entry by the Court on July 30, 2012 of an Order authorizing the cancellation, redemption or redemption of certain life insurance policies owned by D-E Distribution Corporation (see Docket Nos. 682-684), which had a cash value in excess of$2,000,000. (3) The Court erred in entering the Order because the auditor's report made recommendations which violate the intent of the testator with respect to the distribution of assets to the beneficiaries of the trusts. The Will of Robert M. Mumma provides, in pertinent part, that upon the death of his widow, Barbara McK. Mumma, who died on July 17, 2010, the principal of the trust, as it was then constituted, was to be paid over to his four children, "share and share alike, per stirpes and not per capita." See, e.g., In re Hirt, 832 A.2d 438, 448 (Pa. Super. 2003)("the polestar in every trust is the settlor's intent and that intent must prevail"); Restatement (Third) of Trusts, § 79 (2007). - 7 - 4. Appellant Barbara M. Mumma is filing and serving this Concise Statement of Matters Complained of on Appeal in accordance with Pa. R.A.P. 1925(b)(1). However, in an abundance of caution in light of the opinion of the Supreme Court of Pennsylvania in Berg v. Nationwide Insurance Company, 6 A.3d 1002, 1004-1005(Pa. 201.0), Appellant is serving the trial judge both personally (through hand delivery to the Court Administrator's office) and by mail, having obtained a United States Postal Service Form 3817. Dated: June 27, 2013 Ric and F. Rinaldo Williams Coulson, LLC 16`h Floor, One Gateway Center Pittsburgh, PA 15222 412-454-0200 Attorneys for Barbara M. Mumma - 8 - CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Concise Statement of Errors Complained of on Appeal has been served pursuant to Pa. R.A.P. 906(a) by first-class United States mail, postage prepaid, this 27" day of June 2013, to the following: Hon. J. Wesley Oler, Jr., Senior Judge Court of Common Pleas of Cumberland County One Courthouse Square Carlisle, PA 17013 (via hand delivery and United States Mail) Melissa H. Calvanelli, District Court Administrator Court of Common Pleas of Cumberland County One Courthouse Square Carlisle, PA 17013 (via hand delivery) Joseph D. Buckley, Esquire 1237 Holly Pike Carlisle, PA 1.7013 No V. Otto, N, Esquire George B. Faller, Esquire Jennifer L. Spears, Esquire Martson Law Offices 10 East High Street Carlisle, PA 1.7013 - 9 - (Certificate of service continued) Brady L. Green, Esquire Wilbraham Lawler & Buba 31St Floor 1818 Market Street Philadelphia, PA 19103 Robert B. Eyre, Esquire Foehl & Eyre. P.C. 27 E. Front Street Media, PA 19063 Ms. Linda M. Mumma, P.O. Box 30436 Bethesda, MD 20824 1 chard F. Rinaldo Counsel for Barbara M. Mumma - 10 - WILLIAMS 110111 COULSON ATTORNEYS AT LAW ONE GATEWAY CENTER 420 FORT DUQUESNE BOUL17VARD• 1017LOOR PM'SBURGFI,PA 15222 (412)454-0200 FAX:(412)281-6622 RICHARD F.RINALDO (412) 454-0259 C p rn n rtiwld n illiemswulsan.wm CC) _ C t to June 27, 2013 � y r r\) m t VIA NAND DEL VERY o 0 7 � I -n n n O TI :3 F A o Clerk of Orphans' Court of = � rr— M Cumberland County, PA D rn p co Office of the Register of Wills One Courthouse Square Carlisle, PA 17013 Re: In re Estate of Robert M Muninia Deceased No 21-86-398 Dear Sir or Madam: Enclosed for filing in the above-captioned matter is the Concise Statement of Errors Complained of on Appeal by Appellant Barbara M. Mumma. Pursuant to Pa.R.A.P. 1925(b)(3)(iii), a copy is being hand-delivered to Judge Oler by delivery to the Office of the Court Administrator, and an 1 additional copy is being mailed to Judge Oler by United States mail. Thank you for your assistance in this matter. Very truly yours, Richard I'. Rinaldo Enclosures Cc: Honorable J. Wesley Oler, Jr. (w/enclosures)(via hand delivery) District Court Administrator Melissa H. Calvanelli (via hand delivery) Auditor James D. Buckley, Esquire (w/enclosures)(via United States mail) Counsel or Parties of Record (w/enclosures)(via United States mail) (WC640)33.1 I WILLIAMS COULSON JOHNSON LLOYD PARKER&TEDESCO,LLC