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HomeMy WebLinkAbout07-21-14 n .., "<_-, Shaun E. O'Toole �Q c.,._ ��";�? 220 Pine Street zr�` �' '�'� r-r�r� - c--- � � : �' r. ;_, Harrisburg,Pennsylvania 17101 .� ._: r�,, - � -. 717-695-0389 �� -�`''_' ��: -. ,- , Attorney for Robert M. Mumma, II �r� � ' �� `'_, ,-; --�, �'-y C.+3 `�"'T7 C.J ��C.� IN THE COURT OF COMMON PLEAS �,_; ,., OF CUMBERLAND COUNTY,PENNSYLVANIA In Re: ESTATE OF ROBERT M. . ORPHANS' COURT DIVISION MUMMA,Deceased ' No. 21-86-398 EXCEPTIONS OF ROBERT M. MUMMA.�I TO THE ORDER ENTERED ON JUNE 30,2014 Pursuant to Orphans' Court Rule 7.1, Robert M. Mumma, II files these Exceptions to the Order of Court dated and entered on June 30, 2014 ("Order"). Request for Oral Argument Robert M. Mumma, II hereby requests oral argument on these Exceptions. Exception No. 1 Assessment of Attorney's Fees Is Beyond the Scope of an Auditor Under 20 Pa.C.S.A. §751,the function of an auditor is to "examine and audit an account and to determine distribution." Assessing a litigant for an arbitrary percentage of the legal fees incurred by one of the trusts in these proceedings is clearly beyond the scope of the function of the Auditor. 1 Exception No. 2 The Court Erred in that its Or�de�r he Courtes10 der a dsOpin on Wh'iBch Confi rmed theed for in the Auditor's Report Auditor's Report The Auditor held, "I believe it only fair, right,just and appro�riate that the trust be awarded fifty percent(50%) of its attorney fees to be assessed from Or�:,ctor Robert M. Mumma II and that a hearing be scheduled for the determination of the same." In its Opinion and Order, the Court held, "the court is in full agreement with the recommendations of the auditor on this point. Accordingly, a hearing will be scheduled to determine the amounts to be assessed." The Auditor ruled that Robert M. Mumma, II be "assessed" a percentage of the legal fees incurred by a trust during the audit proceeding. The Report did not direct that Robert M. Mumma, II remit a payment to the trust in this amount, most likely because, at this point in time, Robert M. Mumma, II is, for all intent and purposes, a creditor of the two trusts. Both the Marital Trust and the Residuary Trust were to be distributed upon the death of Decedent's wife which occurred four years ago and Robert M. Mumma, II is one of four beneficiaries of both Trusts and entitled to a one-fourth(1/4) share from both trusts. It shouxd also significant that Robert M. Mumma, II's shares of the two trusts greatly exceed the amount assessed by the Auditor and this Court. For these reasons, it is logical to conclude that t�le Auditor intended that Robert M. Mumma, II's assessed legal fees be"assessed"upon distribution of the trust to him. Both of these trusts have, since July, 2010, owed Robert M. Mumma, II distributions of his shares of the trusts and neither trust shows any signs of make distribution any time soon. As such, equity would dictate that any obligation owed to either of the trusts by Robert M. Mumma, Jr. would not be due now,but would eventually be off-set against the distributions eventually made to him upon the conclusion of the trusts. 2 This Court scheduled a hearing to "determine the amounts to be assessed." The purpose of the hearing was only to determine the amount and reasonableness of the legal fees and not to determine the manner in which the fees would be paid. Therefore,this Court erred in holding that Robert M. Mumma"shall remit [$521,160.21] within 30 days ot'the date of this Order." Exception No. 3 The Court Erred in That The Order Is Not Consistent With the Auditor's Request That One of the Trusts Be Awarded Fifty Percent of its Legal Fees by Robert M. Mumma,II The Auditor titled Conclusion of Law 53 of his Report(page 124) "Whether additional attorney fees should be awarded to the Estate and the trusts." [Emphasis Added]. The Auditor then found: "I believe it only fair,right,just and appropriate that the trust be awarded fifty percent (50%) of its attorney fees to be assessed from Objector Robei�t M. Mumma II and that a hearing be scheduled for the determination of the same." [Emphasis Added.] In its Opinion and Order confirming the Auditor's Report,the Court merely held: "the court is in full agreement with the recommendations of the auditor on this point. Accordingly, a:�earing will be scheduled to determine the amounts to be assessed." At issue in the proceedings before the Auditor were the audits of three entities: (1)the Estate of Robert M. Mumma; (2)the Marital Trust; and(3)the Residuary Trust. The Auditor, when addressing whether fees should"be awarded to the Estate and the trusts," concluded that one of the trusts be awarded fifty (50%) of its fees. The Auditor did not specify which of the two trusts should be awarded fifty (50%) of its fees incurred during the audit procedure. At the hearing, legal counsel for the Estate and the two trusts di�?not provide the Court with a break-down of the legal fees incurred while defending each of the three accountings from the objections filed, but provided only the total fees incurred by all three entities. The Court erred in assessing Robert M. Mumma, II for fifty percent of the total amount of legal fees 3 charged by counsel to the trusts and Estate since such an assessment is inconsistent with the request of the Auditor. Exception 4 The Court Erred in Not Holding that Legal Fees Charged to the Estate Were Excessive Based on the testimony at the hearing,the Auditor conducted over forty days of hearings related to the audit of the three entities and other matters. There werF;two objectors who proceeded in these hearings almost entirely pro se. The Estate and trus�s were, at all times, represented at these hearing by at least two attorneys and, on occasion, by three attorneys. One of the attorneys representing the Estate and trusts was Brady L. Green, `rom the Philadelphia law firm of Morgan, Lewis and later the Philadelphia law firm of Wilbraham, Lawler& Buba. At the time of the hearings, Mr. Green's hourly rate was $595.00 an hour. The fact that Mr. Green's hourly rate was three times what lawyers in central Pennsylvania were charging at the time is apparent from the testimony that the hourly rate of his co-counsel, Ivo V. Otto, of the Carlisle, Pennsylvania firm, Martson Law Offices, was $180.00 an hour during this time period. There was also testimony that when the Estate and trusts were being represented by three attorneys (on occasion, George B. Faller, Jr., a partner in Mr. Otto's iirm would be present),the Estate and trusts were incurring legal fees at a rate in excess of$1,000.00 an hour. All in an effort to defend the three accounts against two objectors who were proceeding pro se. In addition, Mr. Green's invoices demonstrated that Mr. Green made little effort to reduce the legal fees charged by his firm by delegating the work to a junior partner, an associate, or a legal assistant who could perform the tasks at a reduced hourly rate. For these reasons,the Court erred in not holding that the legal fees charged to the Estate and trusts were excessive. 4 Exception 5 The Court Erred in Not Allowing Robert M. Mumma,II From Presenting Testimony Which Would Have Demonstrated That His Manor in Objecting to The Three Accounts Was Merited and Not Unreasonable The Auditor took the unfathomable position that it was not his responsibility to consider events that took place prior to beginning of the audit periods in question; April 12, 1986 for the Estate,November 11, 1986 for the Marital Trust, and November 24, 1986 for the Residuary Trust. He appears to ha�e begun with the irrebuttable presumption that whatever assets the fiduciaries contended were administered as part of the Estate or trusts were rightful assets of the Estate or trusts. It is primarily for this reason that Robert M. Mumma, II was forced to aggressively object to the three Accounts. Mr. Mumma's testimony to these matters at the hearing before this Court would have demonstrated that he was not out of line in the manner in which he objected to the three Accounts and for that reason he should not be assessed with paying legal fees. The Court erred in not allow Mr. Mumma to testify ur present evidence to prove that the Auditor ened in not considering evidence that preceded the beginning of the audit periods. Conclusion Far the reasons set forth above, Robert M. Mumma, II takes exceptions to the Court's Order of June 30, 2014 and requests that the Court reconsider and amend its Order to: (1) Hold that the legal fees charged by the Estate's and trus'�' legal counsel during the litigation regarding the audits was unreasonable and excessive and reducing it accordingly; (2) Hold that the Auditor erred in assessing Robert M. Mumma, II with one-half of the Estate's and trusts' legal counsel during the litigation regarding the audits; and 5 (3) If it is the position of the Court that Robert M. Mumma, II should be assessed for a portion of the Estate's and trusts' legal fees that such assessment paid by off-setting the amount which the trusts will eventually distribute to Mr. Mumma at the conclusion of the trusts. . o� (�c I �4 `�. 1, �.-� Date. aun E. O'Toole Attorney I.D.No. 4797 220 Pine Street Harrisburg, Penrxsylvania 17101 Attorney for Robef� M. Mumma, II 6 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing Brief was served by first class United States mail, postage prepaid, upon the following: Ivo 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 St Floor Philadelphia, Pennsylvania 19103; Richard F. Rinaldo, Esquire Williams Coulson LLC One Gateway Center, 16t"Floor Pittsburgh, Pennsylvania 15222; Linda M. Mumma P.O. Box 70 Mechanicsburg, Pennsylvania 17055 Joseph D. Buckley, Esquire 1237 Holly Pike Carlisle, Pennsylvania 17013; and Anthony L. DeLuca 113 Front Street Boiling Springs, Pennsylvania 17007 . Date: v��2��(4 � �--�-- haun E. O'Toole Attorney Registration No. 44797 220 Pine Street Harrisburg, Pennsylvania 17101 (717) 695-0389 Attorney for Robert M. Mumma, II