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HomeMy WebLinkAbout06-23-14 (2) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA In Re: ESTATE OF ROBERT M. MUMMA,Deceased ORPHANS* COURT DIVISION n o No. 21-$6-598 a c ? o rri ;u7 zr C7 CONCISE STATEMENT OF ERRORS COMPLAINED,r,-- `' ry ON APPEAL BY APPELLANT ROBERT M. MUMMA=31& w i rr v co 1. This Concise Statement of Errors Complained of on Appeal iffil�ed in compliances v c r m with Pa.R.A.P. 1925(b)(4)and served pursuant to the Order this Court entefeed on Jun , 2041p 2. Pursuant to Pa.R.A.P. 1925(b)(4), the errors complained of on appeal by Appellant Robert M. Mumma Il are as follows: A. The trial court erred in entering its Order of April 30,2014 in that in many of its holdings the court has allowed the executrices and trustees to totally disregard the intentions of Robert M. Mumma("Testator") and make no effort to keep the ownership of the closely held stock and other assets within the immediate family. The fiduciaries,' with the blessing of the trial court, have totally ignored the Testator's intent, as set forth in the Will, that"(i)t is my desire that if expedient and possible, the businesses which I have personally directed during my lifetime and of which I have had an interest be continued for the benefit of and under the management and control of my immediate family."The trial court's position that this language in the Will is precatory and therefore not binding is not supported by current case law. According to the auditor's report,the parties were getting along and working together until the fiduciaries' decision in 1987 to not sell the quarry operations to The term"fiduciaries"is used herein to reference both 9arbar McK.Mumma and U,;a M. Morgan in both their. capacities as executrices of the Estate of Robert M. Mumma and as trustees of the two trusts established in the Will of Robert M.Mumma 1 Decedent's son, Robert M. Mumma II, at which time the relationships between the family members began to break down. Not only did the fiduciaries decide to disregard the intent of the Decedent and not convey any of the family business interests to Decedent's family members,they also set out to"squeeze out" (their terminology, not the undersigned's)Robert M. Mumma II from the family businesses. Had the fiduciaries not been allowed to ignore this provision of the Will, in all likelihood most, if not all, of the litigation involving this estate would have been avoided;the auditor would not have had to hold forty days of testimony;the estate would now be concluded; and the estate and family members would have saved millions in legal fees. Finally, in light of the fact that it was the fiduciaries' totally ignoring binding language of the Will that led to the animosity between three of the family members against their sister,the Administrator, it is disingenuous to now suggest that the an in-kind distribution of closely held stock and joint tenancy interests to the family members is unthinkable because of the animosity among the family members. B. The Court erred in holding that Robert M. Mumma II,one of the beneficiaries, should"bear the responsibility of one-half of the estate's attorney's fees and for half of the costs of the auditor's proceedings." More so than any of the other beneficiaries, Robert M. Mumma II was very much involved with the Decedent in working with the various family businesses. Although all of Decedent's four children owned stock in various family entities,Robert M. Mumma II and the Decedent were the sole owners of Lebanon Rock, Since Robert M. Mumma II was the only family member to approach the fiduciaries about purchasing a family business from the estate, and since it was Robert M. Mumma Il who the fiduciaries decided to"squeeze out" of the family 2 businesses, Robert M. Mumma II was clearly the most affected by the fiduciaries' arbitrary decision to ignore binding language of the Decedent's Will which expressed Decedent's intent that the family businesses remain in the family. Therefore it is understandable that Robert M. Mumma lI would passionately protest and challenge the activities of the fiduciaries as they continued to ignore the testamentary intent of the Testator. To order a beneficiary who is merely trying to get the fiduciaries to honor the intention of the Decedent to pay one-half of the estate's attorney fees and costs is to deny said beneficiary of due process. C. The court erred in not addressing many of the objections raised by those who filed objections to the auditor's report including, but not limited to, how certain assets, namely the stock of closely held corporations, came to be included as assets of the estate and the trusts when Decedent did not own the assets at the time of his death. In so doing,the court ignored the proceedings in the Dauphin County Orphans' Court regarding the estate of Decedent's father, Walter A Mumma. D. The court erred when, while discussing the eventual liquidation of the trusts, it did not hold nor recognize that the court lacks the authority to direct the trustee, to sell the real estate. The trusts do not own any real estate outright. The trusts do own stock in corporations that own the real estate and the trusts own interests in joint tenancy arrangements which own real estate. The court could direct the trusts to sell its stock in the corporations and its interests in the joint tenant arrangements. However, it should be noted that if the trusts were directed or authorized by the court to sell its interests in the joint tenant arrangements, the agreements governing the two joint tenant arrangements would clearly require the trusts to offer to sell its joint tenant interests to the other owners 3 of the joint tenancies before offering such interests for sale to the public. Likewise,the stock in the closely held corporations could be subject to similar transfer restrictions by a shareholder agreement or the bylaws of the corporation. Finally,to allow Lisa M. Mumma, the sole trustee of the trusts,to sell any of the trust assets and not distribute such assets, in kind,to Decedent's.four children in equal shares is clearly in violation of the trusts' language that upon the Death of Decedent's wife, the principal of the trust"as it is then constituted" is to be distributed to Decedent's four children, "share and share alike." E. The court erred in failing to address how and when two very significant assets, the interests in the two joint tenant arrangements (MRA I and MRAII)were poured over from Decedent's estate to the trusts. Under the terms of both MRA I and MRA 1I, before Decedent's estate could have transferred its interests in MRA I and MRA II to the trusts,the estate would have been obligated to offer its interests in MRA I and MRA 1I to the other owners of the joint tenancies. Since this was never done, it is obvious that these interests were never transferred to the trusts. F. The court erred in accepting the auditor's position that the marital trust was not over-funded. Under the language of the marital trust, the initial funding failed to take into consideration the distributions to Decedent's wife,either under the Will or through non-probate distributions, such as life insurance, and reduce the funding of the trust accordingly. In addition, when valuing the assets to be used to fund the marital trust, the fiduciaries used appraisals that woefully undervalued the assets. For example, the appraisals of real estate failed to factor in mineral rights to the property. Finally,the 4 auditor interpreted the position of Robert M. Mumma's expert, Jonathan Christ, when he state that he was not prepared to express an opinion of a matter as agreeing with the expert witness of Lisa M. Morgan. Respectfully submitted, Date: -Shaun E. _O'Toole Attorney Registration No. 44797 220 Pine Street Harrisburg, Pennsylvania 17101 (717) 695-0389 5 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing Brief was faxed to each of the following attorneys and served by first class United States mail, postage prepaid, upon the following: No V. Otto, III, Esquire George B. Faller, Jr., Esquire Martson Law Offices 10 East High Street Carlisle, Pennsylvania 17013; Brady L. Green, Esquire Wilbraham, Lawler& Buba 1818 Market Street, 31"Floor Philadelphia, Pennsylvania 19103; Richard F. Rinaldo, Esquire Williams Coulson LLC One Gateway Center, 16`h Floor Pittsburgh, Pennsylvania 15222; Melissa H. Calvanelli District Court Administrator Court of Common Pleas of Cumberland County One Courthouse Square Carlisle, Pennsylvania 17013; and Linda M. Mumma P.O. Box 30436 Bethesda, Maryland 20824. Date: 06123114 �� h haun E. O'Toole Attorney Registration No. 44797 220 Pine Street Harrisburg, Pennsylvania 17101 (717) 695-0389 Attorney for Robert M Mumma, II