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Home My WebLink About06-25-14 � � WILLIAMS COULSON, LLC �' � ° ..� �, Richard F. Rinaldo (I.D. No. 33222) '" =a �"f r `T' 16th Floor, One Gateway Center ��,' �� ,`�':' z �� _ ° �, � ��> 420 Fort Duquesne Blvd. : = ' cn r�� ". :�, .tl C"�5 Pittsburgh, PA 15222 ti' � ::,� �., � :� � 412-454-0259 (rrinaldo@williamscoulson.com) �`"-�' � �'�' � ��-I � Attorneys for Defendant Barbara M. Mumma -� `� � i�� rn '� L� �n o N -,� IN RE: : IN THE COURT OF COMMON : PLEAS OF CUMBERLAND Estate of Robert M. Mumma, Deceased : COUNTY, PENNSYLVANIA : No. 21-86-398 : Orphans' Court Divisio� MOTION OF BARBARA M. MUMMA PURSUANT TO 20 Pa. C.S. § 3511 FOR AN ORDER THAT THE ACCOUNTS FILED BY THE TRUSTEE, LISA M. MORGAN, IN THE ABOVE-CAPTIONED MATTER FOR THE PERIOD JULY 18, 2010 THROUGH DECEMBER 31, 2012 BE EXAMINED AND AUDITED BY THE COURT ITSELF IN THE FIRST INSTANCE, AND NOT BY THE NEWLY-APPOINTED AUDITOR Barbara M. Mumma, by her attorneys, Williams Coulson, LLC, hereby respectfully requests that this Court enter an Order substantially in the form attached hereto directing that the Accounts filed in the above-captioned matter for the period July 18, 2010 through December 31, 2012 be examined and audited by the Court itself in the first instance, and not by the newly-appointed Auditor. In support of this Motion, Barbara M. Mumma states as follows: 1. This Orphans' Court matter has been pending since 1986. � 2. By Order dated January 6, 2005, this Court first appointed Taylor P. Andrews, Esquire as Auditor of this estate. (Docket No. 87). During the first few months of 2005, a motion was made to recuse or to remove Attorney Andrews, which eventually was denied. (See Docket Nos. 90, 94, 96). 3. More than three years later, the Docket reveals a further motion for the vacation of the appointment of Auditor Andrews. (See Docket No. 254). 4. In August, 2008, this Court entered an Order advising the parties that the Court would replace Auditor Andrews and that the Court would appoint a new anditor, and if "the interested parties were not able to agree within 7 days of today's date on such a replacement." (Docket Nos. 282-283). 5. By Order dated September 19, 2008, this Court appointed Joseph D. Buckley, Esquire, to serve as Auditor. (Docket No.s. 295-296). There is no record that the Court either sought or received the consent of all parties to the appointment of Auditor Buckley. 6. Nearly five years later, after approximately 40 days of hearings before Auditor Buckley, on August 7, 2013 Auditor Buckley filed his final Report of Auditor for the periods up to and including July 17, 2010. (See Docket No. 767). 7. Objections were timely filed to the Auditor's Report by Barbara M. Mumma, by Lisa M. Morgan and by Robert M. Mumma, II, and this Court -2- � subsequently received briefs in support of the objections and heard argument on the Objections. 8. By Order dated April 30, 2014, this Court entered an Order, accompanied by an Opinion, dismissing the Objections filed by all parties and confirming the accounts. (Docket No. 836). Timely appeals have been filed from the Apri130, 2014 Order and are pending. 9. Auditor Buckley advised the Court that he did not wish to further serve as auditor, so by Order dated November 7, 2013, this Court appointed Anthony L. DeLuca, Esquire as Auditor to conduct a hearing of the objections filed to the accounts covering the period July 18, 2010 through December 31, 2012. (See Docket Nos. 804-805). 10. Auditor DeLuca was not nominated by any of the parties, and this Court did not seek or receive the consent of all of the parties prior to issuing the Order appointing Attorney DeLuca as Auditor. 11. Auditor DeLuca has not yet conducted any hearings on the aforementioned accounts, and none are likely to be scheduled prior to September, 2014 because of the scheduling conflicts of various parties, including the Trustee. 12. Section 7799.2 of the Pennsylvania Probate, Estates and Fiduciaries Code, 20 Pa. C.S. § 7799.2, expressly provides that "The provisions concerning accounts, audits and distributions in trust estates shall be the same as those set forth -3- � in the following provisions of this title for the administration of a decedent's estate: Section 3511 (relating to audits in counties having separate orphans' court division) . . . ." 20 Pa. C.S. § 7799.2. 13. The Court of Common Pleas of Cumberland County, the Ninth Judicial District, has a separate Orphans' Court Division, and has published Local Rules regulating practice therein entitled "Cumberland County Orphans' Court Rules" and which may be cited as "C.C.O.C.R." See C.C.O.C.R. 1.2-1, 1.2-2. 13. Section 3511 of the Probate, Estates and Fiduciaries Code expressly provides that "In any county having a separate orphans' court division, the account of a personal representative shall be examined and audited by the court without expense to the parties, except when all parties in interest in a pending proceeding shall nominate an auditor whom the court may in its discretion appoint." 20 Pa. C.S. § 35ll (emphasis added). Accord, 20 Pa. C.S. § 751 ("The orphans' court division may appoint: . . . (2) Auditors of accounts of fiduciaries. — Except in the circumstances prohibited by law, an auditor to examine and audit an account and to determine distribution.") 14. Neither Barbara M. Mumma nor any other party nominated Anthony L. DeLuca, Esquire to serve as auditor, nor has Barbara M. Mumma consented to the service of Attorney DeLuca as Auditor for this proceeding. -4- � 15. Barbara M. Mumma, however, wishes to emphasize that by making this motion, she intends no criticism whatsoever of Attorney DeLuca. However, he has been appointed as a new auditor in a matter that has been pending for decades, and it is time that one or more of the beneficiaries takes steps to expedite the ultimate disposition of this matter and to reduce where possible the costs of the proceeding while preserving the rights of the parties. 16. Accordingly, Barbara M. Mumma asks that this Court itself examine the accounts filed for the period July 18, 2010 through December 31, 2012 as required by 20 Pa. C.S. § 3511 in order to expedite this proceeding. 17. If these accounts and objections are referred to Auditor DeLuca, then there will be a hearing conducted before the Auditor. The Auditor must provide at least 20 days prior notice of the hearing. See C.C.O.C.R. 8.1-1. The Auditor then has 90 days within which to file a report. See C.C.O.C.R. 8.2-1. The Auditor then will file a report, and objections to the auditor's report then may be filed within 20 days after the filing and receipt of the report by the parties. See C.C.O.C.R. 8.7-2. Following the filing of objections, then this Court will hear and decide the objections and issue an Order either sustaining or dismissing the objections. 18. At this point in this proceeding, it cannot be doubted that this Court is vastly more familiar with the issues than is Auditor DeLuca, who was only appointed last November. Moreover, on June 6, 2014, this Court issued an Order -5- � on a motion in limine which it would be more efficient for this Court to interpret and as to which this Court can make evidentiary rulings on objections during a hearing than would be Auditor DeLuca. For example, this Court is necessarily more familiar with issues which this Court deems already decided in prior proceedings than Auditor DeLuca could be. 19. Moreover, if this Court grants the instant Motion and hears this matter itself, the Court will eliminate the first three steps of this proceeding as set forth in Paragraph 17 above, and thereby this Court could save months and even years in moving to the eventual conclusion of this matter. At the same time, this Court can, by complying with the statutory mandate of 20 Pa. GS. § 3511, save the beneficiaries what likely will amount to hundreds of thousands of dollars, or perhaps even more, by taking this affirmative step to expedite the proceedings. First, there will be the savings of the costs of the upcoming time of Auditor DeLuca.� Moreover, based on past experience as quantified in the record already filed with this Court, the savings in attorneys' fees to the Trust and to the parties themselves will be huge by eliminating the first three steps in this process, as the 1 Out of respect for Attorney DeLuca, Barbara M. Mumma recognizes that Auditor DeLuca has already spent some time in this matter, for which Attorney DeLuca is entitled to compensation. Barbara M. Mumma respectfully submits that, in the event that this Motion is granted, that the Order direct Auditor DeLuca to submit an invoice for his time and expenses to date to be paid by the Residuary Trust. In that way, all four of the residuary beneficiaries will share equally in the cost of compensating Attorney DeLuca. -6- ' statute envisions and mandates. All of the residuary beneficiaries will benefit thereby, regardless of the ultimate outcome. Moreover, by adopting this course this Court is likely to advance by at least a year and possibly more the ultimate conclusion of this litigation. WHEREFORE, for the foregoing reasons, Barbara M. Mumma respectfully requests that this Court issue an Order substantially in the form attached hereto directing that the accounts of the Trusts filed in the above-captioned matter for the period July 18, 2010 through December 31, 2012 be heard at an evidentiary hearing conducted by the Court itself, per Oler, S.J., that the appointment of Anthony L. DeLuca, Esquire as Auditor be vacated, and that Auditor DeLuca be invited to submit an invoice for his time and expenses incurred to date to the parties, with the amount of the invoice to be paid from the Residuary Trust created under the Will of Robert M. Mumma which is the subject of the audit. Respectfully submitted, WILLIAMS COULSON JOHNSON LLOYD PARKER& TEDESCO, LLC < Dated: June , 2014 'chard F. Rinaldo (I.D. No. 33222) 16th Floor, One Gateway Center 420 Fort Duquesne Blvd. Pittsburgh, PA 15222 412-454-0259 (rr�inaldo@will iamscoulson.com) Attorneys for Defendant Barbara M. Mumma -7- IN RE: : IN THE COURT OF COMMON : PLEAS OF CUMBERLAND Estate of Robert M. Mumma, Deceased : COUNTY, PENNSYLVANIA : No. 21-86-398 : Orphans' Court Division ORDER OF COURT AND NOW, this day of , 2014, upon consideration of Defendant Barbara M. Mumma's Motion Pursuant to 20 Pa. C.S. § 3511 for an Order That The Accounts Filed By The Trustee, Lisa M. Morgan, In The Above- captioned Matter For The Period July 18, 2010 Through December 31, 2012 Be Examined And Audited By The Court Itself In The First Instance, And Not By The Newly-Appointed Auditor, and all responses thereto, it hereby is ORDERED, ADJUDGED and DECREED that said Motion is granted. A hearing will be scheduled by further Order of Court on the accounts filed for said period and on the objections thereto which have been filed. The appointment of Anthony L. DeLuca, Esquire as Auditor is hereby VACATED, with the thanks of the Court, and Auditor DeLuca is directed to submit a statement for services rendered to the date of this Order, including both time and expenses, to Lisa M. Morgan, as Trustee of the Residuary Trust created under the Will of Robert M. Mumma, with -8- ` copies to all parties of record herein, said statement to be paid from the assets of the Residuary Trust. BY THE COURT, Oler, S.J. Distribution on Following Page: -9- � Distribution: Richard F. Rinaldo, Esquire Williams Coulson Johnson Lloyd Parker & Tedesco, LLC 16th Floor, One Gateway Center 420 Fort Duquesne Blvd. Pittsburgh, PA 15222 Ivo V. Otto, III, Esquire George B. Faller, Jr., Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 Brady L. Green, Esquire Wilbraham, Lawler & Buba 31 st Floor 1818 Market Street Philadelphia, PA 19103 Shaun E. O'Toole, Esquire 220 Pine Street Harrisburg, PA 17101 Robert M. Mumma II Box F Grantham, PA 17027 Linda M. Mumma P.O. Box 30436 Bethesda. MD 20824 -10- _ _ ._ _ __ _ CERTIFICATE OF SERVICE I hereby certify that on June , 2014, a true and correct copy of the foregoing Defendant Barbara M. Mumma's Motion Pursuant to 20 Pa. C.S. § 3511 for an Order that the Accounts Filed by the Trustee, Lisa M. Morgan, in the above- captioned Matter for the Period July 18, 2010 Through December 31, 2012 be Examined and Audited by the Court Itself in the First Instance, and not by the Newly-Appointed Auditor, was served by e-mail and by first-class United States mail, postage prepaid, to the following persons: Ivo V. Otto, III, Esquire Brady L. Green, Esquire George B. Faller, Jr., Esquire Wilbraham, Lawler & Buba Martson Law Offices 31 St Floor 10 East High Street 1818 Market Street Carlisle, PA 17013 Philadelphia, PA 19103 Robert M. Mumma II Shaun E. O'Toole, Esquire Box F 220 Pine Street Grantham, PA 17027 Harrisburg, PA 17101 Linda M. Mumma P.O. Box 30436 Bethesda. MD 20824 Anthony L. DeLuca, Esquire 113 Front Street Boiling Springs, PA 17007 � � 'chard F. Rinaldo -11-