The URL can be used to link to this page

Home My WebLink About08-25-14 H IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA N C� In re: ESTATE OF ROBERT M. : � o � � � MUMMA, Deceased. : ORPHANS' COURrP �IXIS�N t:;, � � „_ p '""_I ;a 1" N ;'.�.� � ' ;.�°» C�"T C�7 r,�7 �„ : No. 21-86-398 : : �-:, ca ` , <"� r:> �='a _;7 --re -r� 3 `z,7 CONCISE STATEMENT OF ERRORS COMPLAINE� OF o ,�- ; ON APPEAL BY APPELLANT BARBARA M. MUIYIIVIA r v � cn 1. This Concise Statement of Errors Complained of on Appeal is filed in compliance with Pa. R.A.P. 1925(b)(4) and served pursuant to the Order of Court dated August 5, 2014. 2. Pursuant to Pa. R.A.P. 1925(b)(4), Appellant Barbara M. Mumma hereby prefaces this Statement with the following: The Order from which Ms. Mumma appeals was dated July 7, 2014 and entered on the docket July 8, 2014 (Docket No. 869-870)(hereinafter "the Order"). The Order was not accompanied by an Opinion setting forth any basis of the Court's order. 3. Pursuant to Pa. R.A.P. 1925(b)(4), the errors complained of on appeal by Appellant Barbara M. Mumma are as follows: a. Whether the Trial Court erred in entering the Order because the Order violates the intent of the testator with respect to the {WC455592.1 } 4 distribution of assets to the beneficiaries of the trusts, both generally and as to the shares of stock in Bobali Corporation currently held in the Residuary Trust. 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 McKinney, 67 A3d 824, 831 (Pa. Super. 2013) 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). Included in this issue raised as error is the Court's apparent implication that directly contrary and specific language in the Will was "precatory." See April 30, 2014 Opinion, at pp. 13-14. The cases cited by the Court for its determination [e.g., In re Lindsey's Estate, 311 Pa. 536, 166 A. 848 (1933)] have been criticized and distinguished by more recent authority and are at best a small minority view. See, e.g., In re Hand's Estate, 315 Pa. 238, 244, 172 A. 666, 669 (1934)("It is uniformly held that words of recommendation, request, wish or expectation addressed to the - 2 - - - _ _ _ executor and used in respect to the direct disposition of the testator's property, are prima facie testamentary and imperative, rather than precatory, in effect, on the ground that, the testator having a right to make such a disposition of his property as he thinks proper, the expression of his wishes is deemed to be the expression of his will, and the request is the equivalent of a command."); In re Rzedzianowski's Estate, 148 Pa. Super. 361, 367-368, 25 A.2d 600, 603 (Pa. Super 1942). See generally Hunter, et al., Pennsylvania Orphans' Court Commonplace Book, Vol. V, at pp. 155-157 (Second Edition — Revised 1990 & 2013 Cumulative Supp.). Also included in this issue as error is the Court's determination that the testator's intent was only contingent and the Court's apparent conclusion that the fact that the Will contained general language giving broad powers to the Trustees somehow took precedence over the specific expression of the intent of the Testator concerning the distribution of the assets of the Trusts. The Order further erred in failing to address the Testator's express wishes regarding the continuation of the business of Bobali Corporation as a family corporation. ' - 3 - b. Whether the Trial Court erred in failing to consider established legal authority for the proposition that where the Residuary Trust is the mere nominal holder of the Bobali shares, the Trustee must vote those shares in a manner which is not contrary to both the express direction of the beneficiaries and the equitable owners of the shares. See, e.g., In re Canal Construction Co., 21 Del. Ch. 155, 162, 182 A. 545, 548 (Del. Ch. 1936)("it does not necessarily follow that the transferor may exercise the voting right in defiance of the transferee's wishes. So far have courts recognized the equity of the true owner of stock to control its voting power as against the registered holder, that the latter has been required to deliver a proxy to the former . . . and a dry trustee has been held to vote stock in accordance with the beneficial owner." ). See also In r�e Giant Portland Cement Co. 26 Del. Ch. 32, 41, 21 A.2d 697, 702 (Del. Ch. 1941). In short, the Court erred in holding that Ms. Morgan had the unfettered authority to "vote the 1.4044 shares in the said corporation . . . in accordance with her own judgment in her capacity as trustee."), rather than holding that the shares should be distributed to the equitable owners of the stock or, at the very least, Ms. Morgan should be directed to vote the shares as directed by the equitable owners and residuary beneficiaries. - 4 - c. Because the Order was not accompanied by any Opinion setting forth any basis �or the Court's Order, Barbara Mumma cannot determine at this time whether there may be any other basis for error in the opinion of the Court which led to the issuance of the Order. See Pa. R.A.P. 1925(b)(3)(vi). Respectfully submitted, WILLIAMS COULSON JOHNSON LLOYD, PARKER & TEDESCO, LLC Dat `� ed. August 23, 2014 Richard F. Rinaldo Williams Coulson, LLC 16th Floor, One Gateway Center Pittsburgh, PA 15222 412-454-0200 Attorneys for Barbara M. Mumma - 5 - 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 either Federal Express or by first-class United States mail, postage prepaid, as shown below, this 23rd day of August 2014, to the following: Hon. J. Wesley Oler, Jr., Senior Judge Court of Common Pleas of Cumberland County One Courthouse Square Carlisle, PA 17013 (via Federal Express) Melissa H. Calvanelli, District Court Administrator Court of Common Pleas of Cumberland County One Courthouse Square Carlisle, PA 17013 (via Federal Express) Anthony L. DeLuca, Esquire 113 Front Street Boiling Springs, PA 17007 Joseph D. Buckley, Esquire 1237 Holly Pike Carlisle, PA 17013 Ivo V. Otto, IV, Esquire George B. Faller, Esquire Jennifer L. Spears, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 - 6 - (Certificate of service continued) Brady L. Green, Esquire Wilbraham Lawler & Buba 31 St Floor 1818 Market Street Philadelphia, PA 19103 Shaun O'Toole, Esquire 220 Pine Street Harrisburg, PA 17101 Ms. Linda M. Mumma, P.O. Box 70 Mechanicsburg, PA 17013 � � Richard F. Rinaldo Counsel for Barbara M. Mumma - 7 -