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IN RE: ESTATE OF ROBERT : IN THE COURT OF COMMON �,��5,O� � �
M. l��IUMNIA, : CUMBERLAND COUNTY, PEl���'VA�A 'y�� �
Deceased : ORPHANS' COURT 'y t�`' =
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IN RE: OPINION PURSUANT TO PA. RA.P. 19�5 -� �'
Oler, S.J., September 10, 2014.
In this decedent's estate case, appeals have been filed in the Superior Court at Nos.
1321 MDA 20141 and 1322 MDA 20142 by two of four residuary trust remaindermen
from an order of this court relating to the operation and disposition of a certain
corporation in which the trust has an interest. In brief, the order declined to direct the
trustee to distribute its interest in this corporate asset unmediately in kind to the several
remaindermen and declined to direct the trustee to apportion and vote the trust's shares in
the corporation accordi.ng to the separate desires of the several rema.indermen.
The order of court in question, dated July 7, 2014, was issued followi.ng a hearing
and read as follows:
AND NOW,this 7th day of July, 2014, upon consideration of(a)the Motion of
Lisa M. Morgan [Trustee of the Residuary Trust] for an Order Clarifying Her Right To
Vote Shares of Bobali Corporation Stock Owned by the Residuary Trust under the Will
of Robert M. Mumma, Sr.,and(b)the Petition of Barbara M. Mumma.[a Residuary Trust
remainderman] for Partial Immediate In-kind Distribution from Residuary Trust, or, in
the Altemative, To Declare and Deternune Voting Rights in Certain Shares of Stock of
Bobali Corpora.tion Currently Held in the Residuary Trust Created Pursuant to the Last
Will and Testame�of Robert M. Mumma,Deceased,following a hearing held on June 9,
2014,and the submission of briefs, it is ordered and directed as follows:
1.The Motion of Lisa.M. Morgan is granted to the extent that it seeks
a clarification of her right to vote shares of Bobali Corporation stock
owned by the residuary trust under the Will of Robert M. Mumma., and
her authority to vote the 1.4044 shazes in the said corporation found by
tlie Honorable Bruce F. Bratton to be owned by the said residuary trust3
in accordance with her own judgment in her capacity as trustee is
clarified and confirmed.
'Notice of Appeal of Robert M. Mumma,II,filed August 5,2014.
2 Notice of Appeal of Barbara M.Mumma,filed August 5,2014.
3 Order and Memorandum Opinion,Morgan v. Mumma, 2010-CV-11490-EQ (Bratton, J., December 31,
2013).
1
2. The Petition of Barbara M. Mumma is denied insofar as it seeks an
alternative resolution of the authority to-vote issue, or an order directing
the trustee to immediately distribute the Bobali corporate stock to the
remaindermen in kind;and
3.No other relief is afforded to any party 4
The bases for the appeals have been e�cpressed in sta.tements of errors complained of
on appeal by the remaindermen.s In summary, the grounds for the appeal by Barbara M.
Mumma are (1) that the court ened in concluding that the trustee was not required to
immediately distribute the corporate asset among the remaindermen in kind upon the
trust's termination due to the death of the decedent's spouse and(2)that the court erred in
failing to recognize that the interest of the trust in the corporation was merely "nominal"
and subject to the direcrion of the trust's beneficiaries in proportion to their interests in
the trust.6 The grounds for the appeal by Robert M. Mumma, II, include the additional
contention that the court erred in accepting a deterrnination as to the ownership of shares
of the corporation made by the Honorable Bruce F. Bratton of the Court of Common
Pleas of Dauphin County in a separate proceeding.
This opinion in support of the order of court da.ted July 7, 2014, is written pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a).
DISCUSSION
The background of this estate, including its 28 year history, replete with obstrucrions
to its administration and settlement occasioned by the more litigious of the current
appellants, has been set forth in an opinion of this court dated April 30, 2014, which
accompanied an order disposing of objections to a fmal auditor's report. In the interest of
judicial economy, this opinion is attached hereto and incorporated herein.
4 Order of Court,dated July 7, 2014.
5 Concise Statement of Errors Complained of on Appeal by Appellant Barbara M. Mumma, filed August
25,2014;Concise Statement of Enors Complained by Robert M. Mumma,II,filed August 27,2014.
6 Concise Statemern of Enors Complained of on Appeal by Appellant Barbara M. Mumma, filed August
25,2014.
2
Failure of court to direct trustee to make immediate in-kind distribution of corporate
asset in residuary trust. The issue of whether the residuary trustee was required to make
an immediate in-kind distribution of trust assets to the trust's remaindermen upon the
death of the decedent's spouse has been the subject of previous litigation, the most recent
incarnation of which appears in pending appeals to the Superior Court, docketed at Nos.
905 MDA 2014 (appeal of Bazbara M. Mumma) and 921 MDA 2014 (appeal of Robert
M. Murnma, II), from this court's order of April 30, 2014, disposing of objections to a
final auditor's report. The rationale for the court's ruling adverse to appellants' position
that such an in-kind distribution was required is contained in the opinion accompanying
the order and attached hereto.'
Failure of court to order residuary trustee to vote trust shares of corporate asset in
question in accordance with the beneficiaries'desires and proportionate to their interests
in the trust. Appellants' position that the residuary trustee was required to forgo the
exercise of her judgment as to the management of trust assets in the process of winding
down the firuust was not persuasive to this court for several reasons.
First, such an incapacitation of the trustee was incompatible with the broad fiduciary
powers and responsibilities assigned to her by the testa.tor/settlor, as discussed in detail in
this court's opinion accompanyi.ng the order of court dated April 30, 2014, and attached
hereto.g Second, where ultimate distribution of trust assets could be other than in-kind,9
and no remainderman could be assured of receipt of a specific asset or portion thereof,
the proposition that each rema.inderman had a specific, actionable one-quarter ownership
interest in every asset in the trust was highly fictional.
Third, prior to distribution of trust assets the trust was not a mere "nominal owner"
of the shazes of Bobali Corporation which Judge Bratton assigned to it. With respect to
'See Opinion in re Objections to Fina1 Auditor's Report,dated April 30, 2014,at 12-14.
8 See Opinion in re Objections to Fina1 Auditor's Report,datal April 30, 2014,at 4-7.
9 See Opinion in re Objections to Fina1 Auditor's Report,dated April 30,2014,at 12-14.
3
authority in the form of two local Delawaze state chancery court cases cited in support of
appeal on the "nominal owner" issue,10 the trust's ownership interest herein was far
superior to that of an esta.te administrator who attempted to vote shares of stock that he
had already endorsed for transfer and delivered to estate beneficiaries prior to closing the
estate. See In re Canal Construction Co., 21 Del. Ch.. 155, 182 A. S45 (1936). And the
case of In re Giant Portland Cement Co., 26 Del. Ch. 32, 21 A.2d 697 (1941), wherein it
was said that "the record owner [of shares in a corporation, who had assigned his shazes
to a third party,] may . . . be the mere nominal owner, or, technically a trustee for the
[assigneeJ . . . but legally he is still a stockholder in the corporation, and so faz as the
corporation is concerned, like the usual trustee . . . ordinarily has the right to vote the
stock standing in his name,"11 is actually more supportive of appellee's position than that
of appellants in terms of the right to vote stock.
Failure of court to revisit issue of ownership of corporate asset in question. In
Morgan v. Robert M. Mumma, I�, �arbara Mann Mumma et al., No. 2-10-CV-11490-EQ
(Dauphin County), the Honorable Bruce F. Bratton adjudicated the issue of the ownership
of shares in the Bobali Corporation in 2013, concluding that the shareholders and their
respective ownership interests were as follows:
Lisa Morgan: 2.1489 shares
Robert M. Mumma, II 2.1489 shares
Barbara Mann Mumma: 2.1489 shares
Linda Mann Mumma 1.07445 shares
Estate of Barbara McKimmie Mumma 1.07445 shazes
Residuary Trust of Robert M. Mumma, Sr.: 1.4044 shazes
See Order of Court, da.ted Dec. 31, 2013, at No. 2010-CV-11490-Eq (Dauphin Co.). Both
appellants herein were parties to the Dauphin County action, and it does not appear that
any party to the action appealed the order.
'o See Concise Statement of Errors Complained of on Appeal at 4,filed August 2S,2014.
ll ln re Giant Portdand Cement Co., 26 Del. Ch. 32,42,21 A.2d 697, 701 (1941).
4
The doctrine of collateral estoppel prevents relitigation of issues previously decided
in a competent forum Commomvealth v. Teagarden, 696 A.2d 169 (Pa. super. Ct. 1997).
"[T]he only requirements to the doctrine of collateral estoppel are (1) that the issue or
issues of fact determined in a prior action be the same as those appearing in a subsequent
action . . . [and] that the party aga.inst whom the defense is invoked is identical to or in
privity to the party in the first action." Thompson v. Karastan Rug Mills, 228 Pa. Super.
260, 265, 323 A.2d 341, 44 (1974). Pursuant to the doctrine of collateral estoppel, this
court was not in a position in the instant case to readjudicate the issue of the ownership
interests in the Bobali Corporation on behalf of either appellant.
For the foregoing reasons, it is believed that the order of court dated July 7, 2014,
was properly entered.
BY THE COURT,
�P�� t .
esley r, Jr., S.J.
Shaun O'Toole, Esq.
220 Pine Street
Harrisburg, PA 17101
Attorney for Appellant Robert M. Mumma, II
Richazd F. Rinaldo, Esq.
Williams Coulson, LLC
16th Floor
One Gateway Center
Pittsburgh, PA 15222
Attomey for Appellant Barbara M. Mumma
Ivo V. Otto, IV, Esq.
George B. Faller, Esq.
Martson Law Offices
10 East High Street
Carlisle, PA 17013
Attomey for Appellee Lisa M. Morgan, Esq.
5
Brady L. Green, Esq.
Wilbraham Lawler& Buba
31 st Floor
1818 Market Street
Philadelphia, PA 19103
Attorney for Appellees Lisa M. Morgan, Esq.,
and Estate of Barbara McK. Mumma
Linda M. Mumma
P.O. Box 70
Mechanicsburg, PA 17055
Appellee, pro Se
Anthony L. DeLuca, Esq.
113 Front Street
Boiling Springs, PA 17013
Auditor (courtesy copy)
6
APPENDIX
OPINION DATED APRIL 30, 2014, IN RE
OBJECTIONS TO FINAL AUDITOR'5 REPORT
1N RE: ESTATE OF ROBERT : IN THE COURT OF COMMON PLEAS OF
M. MLJMMA, Deceased : CUMBERLAND COUNTY, PENNSYLVANIA
: ORPHANS' COURT DIVISION
: NO. 21-86-398
IN RE: OBJECTIONS TO FINAL AUDITOR'S REPORT
ORDER OF COURT
AND NOW, this 30th day of April, 2014, upon consideration of the various
objections to the final auditor's report filed in the above-captioned estate, and for the
reasons stated in the accompanying opinion, it is ordered and directed as follows:
1. The objections aze dismissed and the accounts to which
objections have been filed are confirmed;�` and
2. In accordance with the auditor's recommendation, a hearing to
deternune attorney's fees and costs is scheduled for Wednesday, June
25, 2014, at 9:30 a.m., in Courtroom No. 4, Cumberland County
Cow thouse, Carlisle, Pennsylvania.
BY THE COURT,
�
� ���� - �' 'f
� �'
esley , Jr., S.J:
*At oral argument on the objections to the auditor's report, the parties indicated that it would be
premature at this time to approve a certain schedule of distribution.
Joseph D. Buckley, Esq.
1237 Holly Pike
Carlisle, PA 17013
Auditor
Anthony L. DeLuca, Esq.
113 Front Street
Boiling Springs, PA 17007
Successor Auditor
Taylor P. Andrews, Esq.
Andrews & Johnson
78 W. Pomfret St.
Carlisle, PA 17013
Former Auditor
Ivo V. Otto, III, Esq.
George B. Faller, Jr., Esq.
Martson Law Offices
10 East High Street
Carlisle, PA 17013
Brady L. Green, Esq.
Wilbraham, Lawler & Buba
31 st Floor
1818 Market Street
Philadelphia, PA 19103
Robert M. Mumma, II
Box F
Grantham, PA 17027
Richard F. Rinaldo, Esq.
Williams Coulson LLC
16th Floor
One Gateway Center
Pittsburgh, PA 15222
Ms. Linda M. Mumma
P.O. Box 30436
Bethesda, MD 20824
IN RE: ESTATE OF ROBERT : 1N THE COURT OF COMMON PLEAS OF
M. MLTMMA, Deceased : CUMBERLAND COUNTY, PENNSYLVANIA
: ORPHANS' COURT DIVISION
: NO. 21-86-398
IN RE: OBJECTIONS TO FINAL AUDITOR'S REPORT
OPINION and ORDER OF COURT
OLER, J., Apri130, 2014.
In this long-delayed decedent's estate, the will of the decedent, Robert M.
Mumma, who died in April of 1986,1 was admitted to probate on June 5, 1986.2 After 27
years of litigation, precipitated largely by one beneficiary,3 an auditor's report dealing
' Petition for Probate and Grant of Letters,filed June 5, 1986.
Z Decree of Probate and Grant of Letters,June 5, 1986.
3 The Superior Court has aptly characterized this beneficiary's conduct in the estate as "litigious."
Opinion, dated February 2012,No. 481 MDA 201 l. With regard to the beneficiary's prior appeals in this
case alone, see, e.g., Notice of Appeal, filed by Robert M. Mumma, II, filed June 10, 2013, from Order
dated May 6, 2013 (relating to sale of"UPS Drive Property"), docketed in Superior Court at No. 1027
MDA 2013 (pending);Notice of Appeal, filed by Robert M. Mumma, II, filed June 10, 2013, from Order
dated May 6, 2013 (relating to liquidation of real estate in marital and residuary trusts), docketed in
Superior Court at No. 1028 MDA 2013) (pending); Notice of Appeal, filed by Robert M. Mumma, II,
filed July 8, 2013,from Order dated June 5, 2013 (relating to motion to compel compliance with or vacate
order errtered in 2012), docketed in Superior Court at No. 1222 MDA 2013 (pending);Notice of Appeal,
filed September 15, 2005 (appeal quashed by Superior Court by order dated October 28, 2005, at No.
1546 MDA 2005); Notice of Appeal, filed January 14, 2009 (appeal quashed by Superior Court by order
dated March 27, 2009, at No. 270 MDA 2009); Notice of Appeal, filed March 14, 2011 (order a,i�irmed
by Superior Court by order dated February 22, 2012, at No. 481 MDA 2011); Notice of Appeal, filed
January 12, 2012, (appeal quashed by Superior Court by order dated October 19, 2012, at No. 97 MDA
2012). The beneficiary has also been involved in litigation against his recently deceased mother's estate in
Florida. See N.T. 88, Hearing, January 28, 2011; RMM Exhibit 1, Hearing, January 28, 2011 (objections
filed in mother's estaxe).
Not surprisingly, the said beneficiary's apparent reaction to the auditor's final report was to file a suit
against the auditor, attomeys for other parties, and prior counsel of his own. No. 2013-7096 Civil Term
(Cumberland Co.)(filed December 2,2013). Having been ruled to file a complaint,the beneficiary filed a
praecipe to withdraw the action"without prejudice."See praecipe, filed February 6,2014.
In addition to numerous periods in which the beneficiary has proceeded pro se, he has variously been
represented by at least 15 different attorneys. His most recent counsel has withdrawn in this court as of
February 27, 2014 (see Order of Court, dated February 27, 2014) and in the Superior Court in estate-
related cases as of March 18, 2014 (see Order of Court, Nos. 1003 MDA 2013, 1027 MDA 2013, 1028
MDA 2013, [1222] MDA 2013, Pennsylvania Superior Court). The docket entries in this court in the
estate, which are recorded at two different docket numbers, now extend to 92 pages. See "Register of
1
with objections to fourteen accounts, has been filed.4 For disposition at this time is a 114-
page document filed on behalf of the aforesaid beneficiary entitled "Supplemental and
Corrected Objections of Robert M. Mwnma, II to August 7, 2013 Report of Aud.itor
Joseph D. Buckley, Esquire,"5 as well as objections filed by another beneficiary6 and
objections filed by fiduciaries under the will.'
Oral argument has been held on the objections to the auditor's report before the
undersigned senior judge. For the reasons stated in this opinion, the objections will be
dismissed.
STATEMENT OF FACTS
Robert M. Mumma, an active businessman domiciled in Wormleysburg,
Curnberland County, Pennsylvania,g died on April 12, 1986,9 at the age of 71,10 survived
by his spouse, Barbara McK. Mumma, and four adult children,l l whose present names
Wills" Docket (entries from 1 to 185) and "Orphans' Court" Docket (ernries from 1 to 760), Estate of
RobertM.Mumma, 1986-398.
It has been estimated by the auditor that litigation occasioned by this beneficiary in federal and state
courts has resulted in attorney's fees for the decedeirt's estate and its executrices/trustees in excess of five
million dollars.See Report of Auditor,¶444,filed August 7, 2013.
References in this opinion to "the said beneficiary" or "the aforesaid beneficiary" are to Robert M.
Mumma, II,unless otherwise indicated.
4 Report of Auditor, filed August 7, 2013.
5 Supplemental and Corrected Objections of Robert M. Mumma, II to August 7, 2013 Report of Auditor
Joseph D. Buckley, Esquire,filed September 19,2013.
6 Objections of Barbara M. Mumma to Report of Auditor pocketed August 7, 2013, filed September 16,
2013.
' Objections of Baxbaza McK. Mumma (Deceased) and Lisa M. Morgan As Executrices of and Trustees
under the Will of Robert M. Mumma To Report of Auditor, filed September 16, 2013.
8 Petition for Probate and Grant of Letters, filed June 5, 1986.
9 Petition for Probate and Grant of Letters, filed June 5, 1986.
10 Petition for Probate and Grant of Letters, filed June 5, 1986.
"See Opinion and Order of Court, dated November 17, 1989,at 1 (Sheely, P.J.).
2
are Lisa M. Morgan (formerly Mumma), Robert M. Mumma, II, Barbara M. Mumina
(formerly McClure), and Linda M. Mumma(formerly Roth).12
The decedenYs will, executed in 1982, was not complicated.13 A marital trust and
a residuary trust were provided for. The decedent's spouse was a life beneficiary and his
children the remaindertnen of each trust.14 The funding of the marital trust was directed
to be in
an amaunt equal to fifty (50%)percent of my total gross estate as finally
determined for Federal Estate Tax purposes, taking into account and
including therein, for computation purposes, my undivided interest in the
value of all my interests in property which pass or have passed to my
wife under other provisions of this Will or otherwise than under this
Will. . . is
The decedent, in his will, appointed his spouse, Barbaza McK. Mumma, and his
daughter Lisa M. Morgan (formerly Mumma), as co-executrices of the will and co-
trustees of the testamentary trusts.16 By a codicil dated October 12, 1984, the decedent
removed his son, the beneficiary referred to above who has proven litigious, from any
position as a successor fiduciary.l'
With respect to the marital trust, decedent's spouse was to receive (a) the annual
income therefrom, (b) such amount of the principal as deemed appropriate by the co-
trustee to maintain her accustomed standard of living, and (c) the greater of$5,000.00 or
five percent of the principal of the trust annually upon request, said invasion of principal
to be "noncumulative."18 With respect to the residuary trust, decedent's spouse was to
'Z See Petition To Authorize Plan of Liquidation¶2, filed Apri15, 2012.
'3 See generally I.ast Will and Testament of Robert M.Mumma,dated May 19, 1982.
14 See Last Will and Testament of Robert M. Mumma,dated May 19, 1982,¶¶7-8.
'S Last Will and Testament of Robert M. Mumma, dated May 19, 1982, §7.
'6 Last Will and Testament of Robert M. Mumma,dated May 19, 1982,¶15.
"First Codicil to La.st Will and Testament of Robert M. Mumma, dated October 12, 1984.
'8 Last Will and Testament of Robert M. Mumma, dated May 19, 1982,¶7.
3
receive (a) the annual income therefrom and (b) such amount of the principal as deemed
appropriate by the co-trustees to maintain her accustomed standard of living.19
Each trust was to terminate upon the death of the decedent's spouse.20 Upon her
death, the principal of each brust, "as it [was] then constituted," was to be pa,id over to the
remaindermen, decedent's children.21 �
In their fiduciary capacities, the co-executrices/trustees were provided with very
broad powers under the decedent's will. In this regard, the following provisions of the
will are illustrative:
I give and grant unto my trustees,and the survivor thereof,and their successor or
successors, the following powers, which sha11 be construed broadly and which may be
exercised by them in either or both capacities, as in their discretion they deem advisable,
in addition to and not in limitation of their common law and statutory powers:
(1)To allot, assign, care for, collect, contract with respect to, convey, convert,
deal with, dispose of, enter into, exchange, hold, improve, invest, lease, manage,
mortgage, grant and exercise options with respect to, take possession of, pledge, receive,
release, sell, sue for, and in general do any and every act and thing and to etrter into and
carry out any and every agreement with respect to the property included in any trust
created in this Will which they could if they were the absolute owners thereof, without
being limited in any way by the specific grants of power hereinafter ma.de.
(2)To retain for such time as in their judgment rnay seem advisabie a11 or any
part of my property or assets which at any time shall constitute a part of the trusts herein
provided for.
(3)To sell or exchange, either privately or at public sale and without prior
approval of any court, at such time or times and at such price or prices and on such terms
and conditions as the trustees may consider advisable, a11 or any part of the trust property,
real,personal or mixed,and to execute,verify, acknowledge and deliver all deeds,bills of
sale, or other documents which may be necessary or proper in the exercise of such
powers without liability on the purchaser or purchasers to look to the applica.tion of the
purchase price.
(4)To manage any real property held by them in such manner as they may
determine, including authority to alter, repair, maintain or improve such property as
hereinafter set forth, to mortgage such property on such amount, on such conditions and
at such rates of interest as they shall deem advisable; to abandon such property,to adjust
bound[a]ries, to erect or demolish buildings thereon, to convert for a different use, to
dedicate for public use without compensation, to grant easements and rights-of-way, to
waive payment for property taken by right of eminent domain and to claim and negotiate
19 Last Will and Testament of Robert M. Mumma,dated May 19, 1982,¶8.
20 Last Will and Testament of Robert M. Mumma,dated May 19, 1982,¶¶7, 8.
21 Last Will and Testament of Robert M. Mumma, dated May 19, 1982,¶¶7, 8.
4
for payment for property, to enter irrto party-wall contracts, to protect out of the general
funds of the Trusts created herein, to insure or perfect title and to charge the cost of any
action talcen with regard to any such property to principal or income as they ma,y
determine. To make a11 ordinary repairs to any real estate held by them and such
extraordinary repairs, alterations or improvements against the principal of the Trusts
herein crea.ted of which the property being repaired,altered or improved forms a part.
(5)To lease any real estate subject to the Trust herein created for such term[] or
terms, and for such rental or rentals,and under such covenants and agreements as may, in
the discretion of the trustees, be considered for the best interest of the trust estate. The
trustees shall recognize existing leases, but still have the power to agree to modification
of, or amendment to, the terms of existing leases or to e�rtensions or renewals thereof.
The trustees sha11 have authority to acquire by purcha.se, gift or otherwise, and to resell,
receive, hold, manage and control real estate,and any other interest therein, subject to the
Trusts,and do all things necessary or proper in the performance of such functions.
(6)To invest, and from time to time to reinvest, to acquire, and to retain
temporarily or permanently the trust estates received or held by them in cash or in kind or
real or personal property, foreign or domestic, including by way of illustration,but not by
way of limita.tion,common or preferred stocks, investment bonds,mortgages,debentures,
notes, unsecured obligations, wasting assets, or investments which are unproductive,
overproductive or underproductive as in their discretion they may deem advisable, and
the total trust funds or the relation it may bear to the type or character of other
investments in the trust estates, or to the effect in the trust estates and they shall not be
restricted in their choice under any present or future applicable law,it being my interrtion
to give my trustees power to act in such manner as they will believe to be for the best
interest of the Trusts created herein.
(7)To pay income tax on gains from the sale or other conversion of capital assets
out of the corpus thereof.
(8)To amortize,accelerate payment of, reduce, extend,modify, settle or liquidaxe
any lien, encumbrance, mortga.ge, or other charge against any real estate or other property
which may be subject to these Trusts.The trustees sha11 specifically keep and perform all
of the covenants, terms and conditions of any existing mortgage or mortgages upon said
real estate, on the part of the mortgagor required to be kept and performed and shall have
full power and authority with the consent of the mortgagee or mortgagees, to refund,
replace, extend or otherwise amend the same, and to anticipate and accelerate any
periodical payments therein required.
(9)To subscribe for stock allotments and to exercise all rights and privileges
pertaining to securities which are available to the owner thexeof.
(10) To receive or make distribution of any trust herein created, either in money
or in kind, or partly in money and partly in kind. The judgment of the trustees as to what
sha11 constitute an equitable distribution or apportionment shall be binding and
conclusive upon the beneficiaries hereof. Nothing herein contained, however, shall
empower the trustees to ma.ke distribution before the time or times specified herein.
(11)To pay, collect, compromise, sue for or contract any claim or other ma,tter,
directly or indirectly, affecting the Trusts.
(12)To use income and/or principal to mainta,in in force any policies of life
insurance which I may own on the life or lives of other persons or to receive in gift or
5
purchase or maintain previously existing insurance or annuity contracts for the benefit of
any beneficiary, primary or contingent, if the trustees determine that the best interest of
my family would be served by purchasing said contracts or by continuing such insurance
in force,and to exercise all the powers given to the owner of such policies.
(13)To employ counsel, auditors, custodians, accountants, appraisers, engineers,
and other persons, professional or otherwise, as may be necessary for the proper
administration of the Trusts,and to pay their compensation fjrom]trust funds.
(14)To borrow money and as security thereof, to execute bonds and mortgages
containing warrants of attorney,to confess judgment and to pledge personal property.
(15)To incorporate any unincorporated business received from my estate.
(16)To carry on and conduct any business enterprise in which I may be engaged
at my death.
(17 To hold, invest and account for the sepazate Trusts in one or more
consolidated funds, in whole or in part, as they may determine. As to each consolidated
fund,the division into the various shares comprising such fund need be ma,de only on the
trustees' books of account, in which each Trust shall be allotted its proportiona.te part of
the principal and income of the fund and charged with its proportionate part of the
expenses thereof. No such holding shall, however, defer the vesting in possession of any
estate crea.ted herein.
(18)As to each Trust ereated herein,to exercise all the powers granted and all the
duties imposed herein until such time after the termination of tha.t Trust as the property
included in that Trust has been fully distributed, and to do a11 other acts which, in their
judgment, may be necessary or appropriate for the proper or advantageous management,
investment or disposition of any property included in any Trust created herein.z2
* * * *
The Trustees shall be vested with reasonable discretionary powers and in all
matters not otherwise herein specifically provided, they shall exercise their sound
judgment and discretion in the performance of their duties hereunder. They shall not be
liable for any error of judgment provided that such error is honestly made.23
* * * *
I hereby give unto my Executrix, or her successors, hereinabove named, the
fullest power and authority in a11 matters or questions pertaining to the administration of
my estate, executing the provisions of this my Last Will and Testament, including, but
not by way of limitation, the power and authority to determine a11 doubtful questions
which may arise in the construction of this my Last Will and Testament and the trust
hereunder; I further hereby authorize and empower my Executrix, or her successors,
pending settlement of my estate,to sell, convey, mortgage, lease, exchange, encumber or
otherwise dispose of any and all of the property, real, personal or mixed, at any time
belonging to my estate, either at public or private sa1e, without prior approval of any
court,and at such times and for such price or prices and in any such case upon such terms
as she may think best in her discretion, and I authorize and empower my said Executrix
22 Last Will and Testament of Robert M.Mumma, dated May 19, 1982,¶9.
23 Last Will and Testament of Robert M. Mumma, dated May 19, 1982,¶8.
6
to execute, acknowledge and deliver to the purchasers, grantees, mortgagees, vendees,
assignees or other persons, such contracts, deeds, mortgages, bills of sa,le, and all other
instrumer�ts of writing necessary or proper without obligation upon the latter to see to the
proper application of the proceeds. She sha11 also have the power to compromise or
otherwise to settle or adjust any and a11 claims, charges, debts and demands whatsoever
against or in favor of my estate, as fully as I could do if living. She sha11 further be
empowered to carry on and conduct any business enterprise [in] which I may be engaged
at my death, to reta,in any assets, including stocks or securities which I may own at the
time of my death, pending settlement of my estate, without regard as to whether or not
such assets or securities are legal investments for fiduciaries, and may make distribution
in kind to my txustees. Pending settlement of my estate, she sha11 also have the authoriTy
in her discretion to convert, sell, exchange or dispose of such assets and securities either
for cash of for terms satisfactory to her and to acquire other assets without limitation to
securities or investments as may be declaxed legal for investment for fiduciaxies. She
shall further be empowered to borrow money, and to pledge assets of my Estate as
security therefor,for the purpose of paying taxes which ma,y be levied upon or payable by
my estate, in accordance with this Will in the event that funds in the hands of my
Executriac, or her successors, shall be insufficient to pay such taxes, and if, in the opinion
of my Executrix, or her successors, it appea.ts that conversion of securities and other
assets,real and personal,would then be ma.de at a sacrifice. �`
The will also contained tlus language:
. . . It is my desire that if etcpedieut and possible, the businesses which I have
personally directed during my lifetime and of which I have had an irrterest be continued
for the benefit of and under the ma,nagement and control of my immediate family.�
In 1986, given the prospect of liquidations of corporations in which the esta.te held
large majority interests, and in order to avoid the double taxation tha,t would have
resulted, pursuant to then-recent federal legislation, from a delay, the shareholders
entered into two agreements whereby various assets of the dissolved corporations were to
be held as tenants-in-common.26 These agreements were known as MRA I and MRA II
[MRA standing for Mumma Realty Associates27], and management of the tenancies-in-
common was assigned to a corporation known as MRA, Inc., of which the co-
24 Last Will and Testament of Robert M. Mumma, dated May 19, 1982,¶14.
ZS Last Will and Testament of Robert M. Mumma,dated May 19, 1982,¶13.
26 Opinion and Order of Court, dated March 24, 1992, Mumma u Mumma, No. 66 Equity 1988
(Cumberland Co.) (Sheely, P.J.), aff'd, 433 Pa. Super. 660, 639 A.2d 846 (1993), allocatur deniecl, 539
Pa. 679, 652 A.2d 1324 (1994).
27 See Petition To Authorize Plan of Liquidation, at 2-3,filed Apri15, 2012.
7
executors/co-trustees were the officers and directors.28 Contrary to positions taken by the
above-referenced beneficiary in subsequent litigation, (a) these agreements were valid
and binding upon him and (b) he did not have a right of first refusal regarding the sale of
a business being conducted pursuant to the agreements.29
In 1987, the above-referenced beneficiary, Robert M. Mumma, II, disclaimed his
interest in the trusts.30 However, he later changed his mind,31 his petition to revoke the
disclaimer was granted by the Honorable Harold E. Sheely of this court,32 and a,n appeal
on behalf of the minor children was dismissed by the Superior Court as having been
taken by their guardian ad litem without authority to do so under the guardian's assigned
responsibilities.33
On July 17, 2010, the decedent's widow, Barbaza McK. Mumma, died.34 The
efforts of the surviving co-trustee of the marital and residuary trusts to distribute the hust
assets to the remainderman, in kind or in money, have been approved by the
Pennsylvania Superior Caurt in the context of the latest of several attempts by the
aforesaid beneficiary to have her removed:
With respect to the distribution of assets to the four sibling beneficiaries, the trial court
determined that Morga.n's testimony established that she is completing the process of
obtaining valuations of the estate and trust assets and has asked the beneficiaries if they
have any preferences regarding the receipt of particulaz assets or cash, and that she
intends to make an equitable distribution of the assets to the beneficiaries after collecting
this infortnation. We agree with the trial court that this approach does not constitute any
breach of fiduciary duty. Mumma, Sr. spec�cally provides Morgan in her role as his
28 Opinion and Order of Court, dated March 24, 1992, Mumma u Mumma,
No. 66 Equiry 1988
(Cumberland Co.) (Sheely, P.J.), af�"d, 433 Pa. Super.660, 639 A.2d 846 (1993), aldocatur denied, 539
Pa. 679, 652 A.2d 1324 (1994).
Z9 Opinion and Order of Court, dated Mazch 24, 1992, Mumma u Mumma, No. 66 Equity 1988
(Cumberland Co.) (Sheely, P.J.), af,�''d, 433 Pa. Super. 660, 639 A.2d 846 (1993),allocatur denied, 539
Pa. 679, 652 A.2d 1324 (1994).
3o Disclaimer by Robert M. Mumma, II,filed January 12, 1987.
31 Petition of Robert M. Mumma, II,To Revoke Disclaimer,filed June 20, 1989.
32 See Opinion and Decree Nisi,dated May 21, 1991.
33 Memorandum Opinion, filed July 18, 1994,No. 561 Harrisburg 1993 (Pa. Super. Ct.).
�See In re Estate ofRobert�l�i.Mumma, 2012 PA Super 41, 43,41 A.3d 41,43.
8
personal representa.tive when making an equal distributian among the four sibling
beneficiaries, with the power to decide how to "make distribution of any trust herein
created, either in money or in kind, or partly in money and partly in kind" . . . Mumma,
Sr. further indicated that the "judgment of the trustees as to wha,t shall constitute an
equitable distribution or apportiontnent shall be binding and conclusive upon the
beneficiaries hereof." . . .35
Numerous accounts have been filed during the course of the ad.ministration of the
estate and trusts,36 including a Fourth and Fina1 Account for the estate,37 a 2010
Accounting of Lisa Morgan and Barbara McK. Mumma, deceased, as Trustees of Marital
Trust under the Will of Robert M. Mumma,38 and a 2010 Accounting of Lisa Mumma
Morgan and Barbaza McK. Mumma, deceased, as Trustees of Residual Trust under the
3s In re Estate ofRobertM.Mumma, 2012 PA Super 41,50, 41 A2d 41, 50.
36 First and Interim Account for the Estate of Robert M. Mumma (April 12, 1986, through Mazch 31,
1991), filed August 15, 1991; Second and Interim Account for the Estate of Robert M. Mumma(April 1,
1991, through March 31, 1996), filed June 1, 2000); Third and Interim Account for the Estate of Robert
M.Mumma(April 1, 1996,through March 31, 1999),filed January 8, 2004;First and Interim Account for
the Marital Trust Established under the Last Will and Testament of Robert M. Mumma (November 19,
1986), filed August 15, 1991; Second and Interim Account for the Marital Trust Established under the
Last Will and Testament of Robert M. Mumma (April 1, 1991, through March 31, 1996), filed May 15,
2000; Third and Interim Account for the Marital Trust Established under the Last Will and Testament of
Robert M. Mumma (April l, 1996, through March 31, 1999), filed May 15, 2000; Fourth and Interim
Accourn for the Marital Trust Established under the Last Will and Testament of Robert M. Mumma
(April 1, 1999, through December 31, 2003), filed Mazch 9, 2004; Fifth and Interim Account and
Proposed Distribution of Assets for the Marital Trust Established under the Last Will and Testameirt of
Robert M. Mumma (January 1, 2004, through July 17, 2010), filed September 10, 2010; Account of the
Mazital Trust under the Will of Robert M. Mumma, Deceased (July 18, 2010, through December 31,
2012), filed September 6, 2013; First and Interim Account for the Residual Trust Established under the
Last Will and Testament of Robert M. Mumma (November 24, 1986, through March 31, 1991), filed
August 15, 1991; Second and Interim Account for the Residual Trust Established under the Last Will and
Testament of Robert M. Mumma(April 1, 1991,through March 31, 1996), filed June 1, 2000; Third and
Interim Account for the Residual Trust Established under the Last Will and Testa.ment of Robert M.
Mumma (April 1, 1996, through March 31, 1999), filed May 15, 2000; Fourth and Interim Account for
the Residual Trust established under the Last Will and Testa,ment of Robert M. Mumma (April 1, 1999,
through December 31, 2003), filed March 9, 2004; Fifth and Interim Account and Proposed Distribution
of Assets for the Residual Trust Established under the La.st Will and Testament of Robert M. Mumma
(January 1, 2004, through July 17, 2010, filed September 10, 2010; Account of the Residual Trust under
the Will of Robert M. Mumma, Deceased (July 18, 2010, through December 31, 2012), filed September
6, 2013.
37 Fourth and Fina,l Account for the Estate of Robert M. Mumma (April l, 1999, through September 20,
2003), filed January 1, 2004.
38 Accounting of Lisa Morgan and Barbara McK. Mumma, deceased, as Trustees of Marital Trust under
the Will of Robert M. Mumma, (January 1,2004,through July 17, 2010), filed September 10,2010.
9
Will of Robert M. Mumma.39 A multitude of objections have been filed in response to the
accounts.40 The initial auditor appointed by the court in the case ultimately found himself
unable to reconcile the workload occasioned by the assignment with his other
responsibilities as a practicing attomey41 and was replaced by Cumberland County
attorney Joseph D. Buckley.42 Mr. Buckley conducted approxixnately 40 da.ys of
hearing,43 issued numerous interim reports,� and ultimately produced a 130-page fmal
39 Accounting of Lisa Mumma Morgan and Barbara McK. Mumma, deceased, as Trustees of Residual
Trust under the Will of Robert M. Mumma(January 1, 2004,through July 17, 2010), filed September 10,
2010. Most recently, an Account of the Ma�rital Trust under the Will of Robert M. Mutnma, Deceased
(July 18, 2010, through December 31, 2012 (filed September 6, 20i3) and an Account of the Residual
Trust under the Will of Robert M. Mumma, Deceased (July 18, 2010, through December 31, 2012 (filed
September 6, 2013)have been filed,and objections to these accounts ha.ve been filed on October 8, 2013.
These objections have been referred to a successor auditor, in the person of Anthany L. DeLuca, Esq. See
Order of Court,dated November 7, 2013.
40 Statement of General Objections to the First and Interim Account for the Estate of Robert M. Mumma,
Deceased and the First and Interim Accounts for the Marital and Residuary Trusts under Will of Robert
M. Mumma, filed by Robert M. Mumma, II, October 4, 1991; Supplemental Statement of Objections to
the Account of Barbara K. McK. Mumma and Lisa M. Morgan As Co-Executors of the Estate of Robert
M. Mumma, Deceased, filed by Robert M. Mumma, II, May 27, 2004; Supplemental Staxement of
Objections to the First, Second, Third and Fourth Interim Accountings of Barbara K. McK. Mumma and
Lisa M. Morgan As Co-Trustees of the Marital Trust under Will The Will [sic] of Robert M. Mumma,
Deceased, filed by Robert M. Mumma, II, May 27, 2004; Supplemental Objections, filed by Robert M.
Mumma, II, January 31, 2008; Statement of Genera.l Objections to Petition of Adjudication/Statement of
Proposed Distribution of the Residuary Trust under Will of Robert M. Mumma, Deceased, filed by
Robert M. Murnma, II, November 22, 2010; Statement of General Objections to Petition of
Adjudication/Statement of Proposed Distribution of the Residuary Trust under Will of Robert M.
Mumma, Deceased, filed by Robert M. Mumma, II, November 22, 2010; Objections of Robert M.
Mumma, II to the Account of the Marital Trust July 18, 2010 to December 31, 2012, filed October 7,
2013, stricken, Order of Court dated October 10, 2013; Objections of Robert M. Mumma, II to the
Account of the Residual Trust July 18, 2010 to December 31, 2012,filed October 7, 2013,stricken, Order
of Court, October 10, 2013; Objections of Robert M. Mumma, II to Account of Residuary Trust for
Period July 18, 2010 to December 31, 2012, and Accompanying Petition for Adjudicaxion Filed by Lisa
M. Morgran [sic], Trustee, on September 6, 2013, filed October 8, 2013; Objections of Robert M.
Mumma, II to Account of Marital Trust for Period July 18, 2010 to December 31, 2012, and
Accompanying Petition for Adjudication Filed by Lisa M. Morgran [sic], Trustee, on September 6, 2013,
filed October 8, 2013; Objections of Barbara Mann Mumma, filed September 15, 2008; Objections to the
Account of the Marital Trust under the Will of Robert M. Mumma, Deceased, filed by Barbara Mann
Mumma,November 22, 2010; Objections to Account of the Residuary Trust under the Will of Robert M.
Mumma, Deceased, filed by Barbaza Mann Mumma,November 22,2010.
41 See Order of Court, dated September 19, 2008.
42 See Order of Court, dated September 19, 2008.
a3 See Report of Auditor, filed August 7, 2013,at 2.
10
auditor's report.45 Following the filing of his final report, the aforesaid beneficiary filed
suit aga.inst him.46
In his fmal report, the auditor recommended that the objections to the accounts be
overruled, that the initial auditor be recompensed by the estate and trusts in the amount of
$11,856.46 for his services, and that the aforesaid beneficiary be responsible for one-half
the auditor's charges and one-half the estate's attorney's fees.47
DISCUSSION
Criven the dozens upon dozens of pages of objections to the auditor's report that
have been filed in this estate, it is difficult to avoid a reference to the oft-quoted
observation of the Honorable Ruggero J. Aldisert of the United States Court of Appeals
for the Third Circuit:
When I read an appellant's brief that contains ten or twelve points, a presumption arises
that there is no merit to any of them. I do not say that it is an irrebuttable presumption,
but it is a presumption that reduces the effectiveness of appellate advocacy. . . 48
Many of the objections are in a ratnbling, narrative form or so unspec�c as to be difficult
to address. For instance, a typical objection of the aforesaid beneficiary reads:
The following "findings" of fact are objected to as contrary to the evidence presented to
the Auditor: 188, 201, 212, 218, 232, 235, 240, 254, 288, 270, 282, 292, 293, 294, 295,
303, 306, 307, 310, 313, 319, 320, 321, 322, 324, 326, 327, 333, 334, 353, 355, 358, 359,
364, 365, 369, 370, 372, 373, 393, 399,424,427,435,465, 466 a9
Another reads: "This matter is subject to another forum."so
�`See, e.g., Auditor's Interim Reports, Orphans' Court Docket Entries 437, 457, 507, 603,640,and 708,
as See Report of Auditor, filed August 7, 2013,
�See note 3 supra.
47 See Report of Auditor, filed August 7, 2013,at 122, 124-25, 128-30.
48 Aldisert, The Appellate Bar: Professional Competence and professional Responsibility--A View from
the Jaundiced Bye of One Appellate Judge, 11 Cap. U.L. Rev. 445,458 (1982).
a9 Supplemental and Corrected Objections of Robert M. Mumma, II to August 7, 2013 Report of Auditor
Joseph D. Buckley, Esquire,at 18, �iled September 19, 2013.
50 Supplemental and Conected Objections of Robert M. Mumma, II to August 7, 2013 Report of Auditor
Joseph D. Buckley, Esquire, Exhibit C, filed September 19,2013.
11
. __ _ _ _ _ _ _ -
In this opinion, in the interest of disposing of the objections to the auditor's report
within the lifetime of the undersigned judge, the most significant objections will be
addressed, with the less significant or less comprehensible ones being relegated to the
auditor's discussion.
Principles applicable to objections to accounts and judicial review of auditors'
reports. Preliminarily, it may be noted that, as a general rule, objectants to accounts filed
in the Orphans' Court bear the burden of provi.ng the merits of their objections. See
generally In re Estate of Westin, 874 A.2d 139 (Pa. Super. Ct. 2045); Estate of Geniviva,
450 Pa. Super. 54, 675 A.2d 206 (1996); In re Estate of D'Atessio, 2004 WL 3186286
(Phila. Co. 2004); Kubitsky Estate, 1991 WL 40$53 (Bucks Co. 1991). The merits, in this
context, include proof of causation of loss from any purported dereliction of duty on the
part of a fiduciary. In re Mendenhall, 484 Pa. 77, 398 A.2d 851 (1979).
With respect to judicial review of auditors' reports, it has often been observed that:
[b]ecause of his better opportunity to judge of the intelligence and credibility of witnesses
and their knowledge of the subject under investigation, an auditor's finding of fact from
disputed testimony is entitled to great[weight)and should not be set aside except for very
substantial reasons . . . .
Dingee v. Wood, 228 Pa. 250, 251, 77 A. 440 (1910); see In re Nixon's Estate, 104 Pa.
Super. 506, 159 A. 172 (1932); In re Elgin's Estate, 17 Pa. D & C.2d 31
(Northumberland Co. 1958). In this regard, however, the court is unable to agree with the
contenrion of one of the parties' briefssl that the findings of an auditor have the force of a
jury verdict. In re Nixon's Estate, 104 Pa. Super. 506, 159 A. 172 (1932) (fmdings of
auditor said entitled to great weight, but not to have effect of jury verdict).
Proposed liquidation of some assets in terminated tt•usts in course of distribution.
It appears to be a major objection to the auditor's report that the trustee's proposal to
liquidate some assets of the terminated trusts in the course of distribution was deemed
s' See Brief of Barbara McK. Mumma (Deceased) and Lisa M. Morgan in Opposition to Objections of
Robert M. Mumma, II to Auditor's Report,at 3.
12
acceptable by the auditor.52 In this regard, it is said to have been the testator's intent that,
upon the termination of the trusts incident to the death of the testator's spouse, the
remaindermen would each receive a share of the trusts' principal in precisely the state the
principal existed when the ternunation event occurred, including a proportional share of
each operating business, regazdless of the practicality of such a strictly in_kind
distriburion of assets.53 In support of this position, langua.ge in the will clirecting payment
of the principal of each trust, "as it [was] then constituted,"54 to the remaindermen is
cited, as is the testator's expressed "desire" that, "if expedient and possible, the
businesses which I have personally directed during my lifetime and of which I have an
interest be continued under the management and control of my immediate family,"55 The
aforesaid beneficiary also (a) invites an examination of the will of the father of the
testator to support the proposition that the said beneficiary's own father intended that
ownership of the businesses be retained by the rema.indermen,56 and (b) £aults the auditor
for declining to credit the beneficiary's conjecture that someone must have removed
documents from the testator's safe deposit box following his death that would have
corroborated the beneficiary's position.s'
Several factors milita,te against the contention that the auditor was in error on this
point. First, the language respecting the testator's desire that his businesses remain in the
52 See, e.g., Supplemental and Conected Objections of Robert M. Mumma, II to August 7, 2013 Report of
Auditor Joseph D. Buckley, Esquire, filed September 19, 2013,at¶¶76(c), 77, 144.
53 S+eQ e.g., Supplemental and Corrected Objections of Robert M. Murnma,, II to August 7,2013 Report of
Auditor Joseph D. Buckley,Esquire, filed September 19, 2013,at¶¶76(c), 77, 144.
� See Supplemental and Conected Objections of Robert M. Mumma, II to August 7, 2013 Report of
Auditor Joseph D. Buckley, Esquire, filed September 19, 2013,at¶19.
ss Supplemental and Conected Objections of Robert M. Mumma, II to August 7, 2013 Repart of Auditor
Joseph D. Buckley, Esquire, filed September 19,2013,at¶¶31-34.
56 S.ee Supplemental and Corrected Objections of Robert M. Mumtna, II to August 7, 2013 Report of
Auditor Joseph D, Buckley, Esquire, filed September 19, 2013,at¶¶34-35.
57 See Supplemental and Corrected Objections of Robert M. Mumma, II to August 7, 2013 Report of
Auditor Joseph D. Buckley, Esquire, filed September 19, 2013,at¶27.
13
family was precatory as opposed to mandatory. See In re Lindscry's Estate, 311 Pa. 536,
166 A. 848 (1933) ("wish" of testa.tor that certa.i.n asset of trust not be sold by trustee held
precatory and not mandatory); In re Dickinson's Estate, 209 Pa. 59, 58 A. 120 (1904)
("Where the words `wish' and `desire' are used in expressing a desire for an act to be
done by some person named by the testator, they are generally precatory merely . . . .°�);
see also Estate of Baselice, 2005 WL 3739297 (Phila. Co. Aug. 22, 2005) ("wish and
desire" of testator that certai.n person be given right of first refusal with respect to
purchase of estate asset held precatory), af�'d, 903 A.2d 56 (Pa. Super. Ct. 2006). Second,
the precatory langua,ge was itself contingent upon expedience and possibilitysg—neither
of which, given the dysfi�,nctional nature of the relationship that has developed among the
remaindermen, has materialized as the testator had hoped.
'Third, the will expressly gave the trustee the discretion to distribute assets of the
trusts otherwise than m kind.59 Fourth, the Superior Court has recognized this authority in
ruling upon an earlier attempt by the a.foresaid beneficiary to disqualify the trustee.60 See
Commomvealth v. Starr, 541 Pa. 564, 574, 664 A.2d 1326, 1331 (1995) ("law of case"
doctrine expla.ined to stand for proposition that, upon remand for further proceedings trial
court may not alter resolution of legal question previously decided by appellate court in
matter). Finally, a fact-fmder is entitled to believe all, part or none of the evidence
presented in a case. See Boro Const., Inc. v. Ridley School Dist., 992 A.2d 208, 218 (pa,
Commw. Ct. 2010). There was no requirement that the auditor, nor is there a requirement
that the court, fmd persuasive the beneficiary's uncorroborated testimony that a document
or documents that would have helped his case must have been illegally removed from the
testator's safe deposit box after he died.
Relitigation ofpreviously decided matters. It is strenuously argued that the auditor
erred in accepting various fmdings in previous litigation. For instance, in "miscellaneous
5S See Last Will and Testament of Robert M. Mumma,dated May 19, 1982,at¶13.
s9 See Last Will and Testament of Robert M. Mumma,dated May 19, 1982,at¶9,subparagra.ph 10.
60 See In re Estate ofRobertM.Mumma, 2012 Pa. Super 41, 50,41 A.3d 41,50.
14
objections to fmdings of fact,"61 the aforesaid beneficiary disputes the auditor's recitation
of 30 fmdings by the Honorable Harold E. Sheely of this court in a declaratory judgment
action in 1992, wherein the executrices succeeded in obtaini.ng the following
deternunation:
1)The two tenancy-in-common agreements MRA I and MRA II signed by [the
said beneficiaryJ on December 19, 1986, are binding upon him and grant him no right of
first refusal as to any transfers by the executrices, Barbara McK. Mumma and Lisa M.
Morgan, of the real estate held by the MRA tenants-in-common when there is approval
by a majority in interest;
2)T1ie MRA general power of attorney which [the said beneficiary] executed on
December 19, 1986, is valid and irrevocable, and pursuant to Section 14 of the MRA
agreements, empowers Mrs. Mumma and Lisa to transfer properties held by the MRA
tenancies-in-common; and
3) [The said beneficiary] was never given an oral right of first refusal to purchase
Pennsy Supply, Inc., in June, 1987, in exchange for his promise to execute a power of
attomey for Lot 1-B in Lemoyne.
Barbara McK. Mumma, Lisa M. Morgan, and Linda M. Roth u Robert M. Mumma, II
and Barbara M. McClure, No. 66 Equity 1988 (Cumberland Co.) (Nov. 24, 1992)
(November 5, 1992), aff'd, Order of Court, Nov. 5, 1993, No. 56 Harrisburg 1993 (Pa.
Super. Ct.). In rejecting the position of the said beneficiary in the litigation, President
Judge Sheely, in an extensive opinion, made 120 findings of fact,62 no fewer than a
quarter of which the benefciary seeks to relitigate.
It also appears that the said beneficiary seeks to relitigate the issue of restrictions
on the transfer of an asset in which the estate held a large interest.63 In Robert M.
61 See Supplemental and Corrected Objections of Robert M. Mumma, II to August 7, 2013 Report of
Auditor Joseph D. Buckley, Esquire, filed September 19, 2013,at¶62(a).
62 Opinion and Order of Court, dated March 24, 1992,Mumma u Mumma, 66 Equity 1988 (Cumberland
Co.)(Sheely, P,J.).
63 According to the beneficiary, "[c]ontrary to the findings and conclusions of the Auditor, there is
substantial evidence of the existence of shareholder agreements . . .prohibiting the transfers of stock of
Mumma family entities, such as Pennsy Supply." Supplemental and Conected Objections of Robert M.
Mumma, II to August 7, 2013 Report of Auditor Joseph D. Buckley, Esquire, at 8, filed September 19,
2013.
15
Mumma, II v. Pennsy Supply, In�.,� the undersi d ud e rejected, inter a1i
�e J g a, the
beneficiary's position that such restrictions continued to be in effect. The a.ff'lrm.in
opinion of the Superior Court described the declarato ud g
rY j gment action brought by the
beneficiary succinctly:
Appellant brought this declaratory judgment action in 1999
The action involves a construction and quarrying company t�t W�ouridedlle�eY
Appellant's grandfather and eventually, after various corporate a.ctions, operated under
the name Pennsy Supply, Inc. In 1982, Pennsy Supply, Inc. changed its name to Nine
Ninety-Nine, Inc., canceled all of its outstanding shares, and issued replacement shares in
the new corporate name. Pennsy Supply, Inc. became a wholly-owned subsi
Ninety-Nine Inc. The assets that were held in the name Nine Ninety-Nine, Inc.�W Nlas
other construction and quarrying assets owned by t he Mumma family were sold in 1993
to an Irish corporation for $34,000,000. Appellant initially opposed the sale but
ultimately joined in it,receiving$3,000,000.
Appellant brought this declaratory judgment action requesting a declara,tion that
he retained an ownership irnerest in a corporation known as Pennsy Supply In�. (no
comma) which, according to Appellairt, operated as a separate and distinct eutity frorr►
Pennsy Supply, Inc. (with a comma). He produced a stock certificate issued in 1963
showing that he owns 314 shares of Pennsy Supply Inc. (no comma) and claims in this
action that the entity with no comma owns the quarry assets formerly owned by the
Mumma family,among other business interests.
In other words, Appellant claims to own the assets sold for$34 million in 1993.
Appellant's position is that two corporations simultaneously existed from 1958 to 1993,
one with a comma and the other without a comma. The Irish corporation paid
$34,000,000 for the company with a comma, which owns nothing, while Appellant, who
received$3,000,000 of that purchase price, owns the compaay without a comma,and tha,t
company owns a11 of the assets. Alternatively, Appellant requested a declaration that a
1961 shareholder's agreement gave Appellant an option to purchase substa,ntial assets
operated by Pennsy Supply,Inc 6s
The doctrine of collateral estoppel prevents relitigation of issues previously
decided m a competent fonun. Commomvealth u Teagarden, 696 A.2d 169 (Pa. Super.
Ct.. 1997). "[T]he only requirements to the doctrine of collateral estoppel a,re (1� that the
issue or issues of fact determined m a prior action be the same as those appearing in a
subsequent action , , , [and) (2) that the party against whom the defense is invoked is
�Opinion and Order of Court, dated Ma 17 2002 RobertM.Mumma II u Penns Su 1 Inc., No. 99-
2765 Equity(Cumberland Co.) (Oler,J.)y � � ' y ppy�
6s Memorandum Opinion, dated July 8, 2013,Mumma v. Pennsy Supply, Inc.,No. 1352 MDA 2002 (Pa.
Super. Ct.)(footnote omitted).
16
_ _ _ _ __ _ _
identical to or in privity to the party iri the first action." Thompson v. Karastan RugMills,
228 Pa. Super. 260, 265, 323 A.2d 341, 344 (1974).
There was no reason for the auditor in this estate to disregard, or ro ose
alternatives to, facts previously decided in a competent forum and pertinent to the curr
litigation. ent
Putported overf'unding of marital trust to benefit testator's spouse. It is also
vigorously argued in objections to the auditor's report that the auditor erred in declinin
to accept the proposition that the executrices overfunded the marital trust and
underfunded the residual trust in order to benefit the testator's spouse through the vehicle
of annual withdravr,als of pnncipal for her benefit.66 In this regard, reference is made to
the distinction in the will between permitted withdrawals from the two trusts: with
respect to the marital trus� decedent's spouse was to receive (a) the annual income
therefrom, (b) such amount of the principal as deemed appropriate by the co-trustee to
maintain her accustomed standard of living, and (c) the greater of $5,000.00 or five
percent of the pri.ncipal of the trust annually upon request, said invasion of principal to be
"noncumulative";67 with respect to the residual trust, decedent's spouse was to receive (a)
the annua1 income therefrom and (b) such amount of the principal as deemed appropriate
by the co-trustee to maintain her accustomed standard of living.68 The amount to be
allocated to the marita1 trust has been previously described.69
For several reasons, the court fmds itself in agreement with the aud.itor on this
point. First, the issue of the propriety of the funding of the two trusts involved a "battle of
e x p e r t s" i n terms o f opinion testimony.70 In such a case, it is the responsibility and
`� See Supplemental and Corrected Objections of Robert M. M
Auditor Joseph D.Buckley, Esquire, filed September 19, 2013,a#¶u¶79 1p3�,t113-2�st 7, 2013 Report of
67 Last Will and Testament of Robert M. Mumma,dated May 19, 1982,¶7.
68 Last Will and Testament of Robert M. Mumma,dated May 19, 1982,¶8.
69 See teact accompanying note 15,supra.
'0 See Testimony of Jona,than M. Crist, Transcript of Auditor's Hearing dated Apri121, 2009, at 164, 202;
Testimony of George Hadley, Transcripts of Auditor's Hea.ring dated December 14, 2009, December 1 S,
17
prerogative of the trier-of-fact to act "as the ultimate referee based upon [his or her]
assessment of the credibility of the experts." Commonwealth v. Puksar, 597 Pa. 240, 255,
951 A.2d 267, 276 (2008). "[A] trier of fact is not bound by the testimony of[a certain]
expert witness and is under no obligation to accept the conclusions of an expert witness.
George v. Ellis, 820 A.Zd 815, 817 (2003).
Second, the objecrion presupposes a fraudulent scheme on the part of (a) Ms.
Morgan, who is a member of the Pennsylvania bar in good standing, and (b) the testator's
spouse and mother of the remaindermen, in concert with others. Nothing in their nature,
as exemplified by the patience with which each endured the interrogation of offspring
and siblirigs during the many da,ys of auditor's hearings, suggests such a malevolent trait
in either executrix/trustee. Indeed, the refusal of the testa.tor's spouse to accept
remuneration for her services as executri�c/trustee under the will71 and her preference that
the fees of the co-executrix/trustee be withdrawn from trust income, to which the spouse
would have been entitled, rather than trust principal,'2 are hardly indicative of a person
desirous of appropriating her children's inheritance. Furthermore, Ms. Morgan could
have had as much to lose as the other remaindermen from the putative overfunding,
Third, the principal of either trust could have been invaded for the benefit of the
testator's spouse had the trustees desired to do so, without resort to the problemaric
device of tiying to overfund the marital trust.73 And, fourth, it appears that ultimately the
Internal Revenue Service and estate agreed upon the valuations attributed to trust assets.74
The auditor well summarized his view of the record on this issue as follows:
2009, December 17, 2009 and December 18, 2009; Testimony of Daniel Johnson, Transcript of Auditor's
Hearing dated October 26, 2009, at 2400-2409; Testimony of Joseph D.C. Wilson, Transcript of
Auditor's Heaxing dated October 26, 2009,at 2461-2484, 2495-2520.
"See Testimony of George Hadley, Transcript of Auditor's Hearing dated December 17, 2009,at 4169.
72 See Testimony of George Hadley, Transcript of Auditor's Hearing dated December 17, 2009, at 4168-
4169.
73 See Last Will and Testament of Robert M. Mumma, dated May 19, 1982,at¶¶7_g,
'4 See Testimony of Joseph A. O'Connor, Jr., Transcript of Auditor's Hearing dated August 3, 2009, at
1645-1647.
18
. . . The Objector has not met his burden of proving that [the executrices] did
something imprudent or improper. In retrospect it is easy to state a party might have
completed a task in a differing manner. Here the executrices sought the advice and
counsel of numerous professiona,ls. Mr. Hadley[, a certified public accountant long
utilized by the Mumma enterprises in his professional capacity,] the individual �,alth �e
most independent knowledge and the person most familiar with the businesses worked to
calculate values.Many scenarios were reviewed. . . . Their actions were proper under the
terms of the decedent's last Will and Testament a.nd were properly administered in
accordance with their duties as Executrices.75
To the extent that a purely legal issue is involved in the contention regarding
overfunding of the marital trust, the court is unable to improve upon the analysis
contained in the Appendix to the brief of the co-executrices/trustees on the subject:
Objectors claimed that Mrs. Mumma, Mrs. Morgan and their advisors
misurterpreted the will with respect to the value of the Marital Trust. They claim tha,t the
result was an overfunding of the Marital Trust by hundreds of thousands of dollars. Their
proffered reading of the will in this regard is incorrect.
All the parties and their experts agcee that the Marital Trust bequest described in
Mr. Mumma, Sr.'s will is a `pecuniary formula marital'—i.e., the bequest is of a specific
amount which is described in the will—as contrasted with a so-called `&a.ctionai share'
formula,which calls for a marital bequest of a fraction of a portion of the estate.
The specific amount described in Mr. Mumma, Sr.'s will and payable to the
Marital Trust is plainly set forth in Article SEVENTH:
an amount equal to fifty (50%)percent of my total gross estate as finally
determined for Federal Estate Tax purposes, taking into account and
including therein, for computation purposes, my undivided interest in the
value of all my interests in property which pass or have passed to my
wife under other provisions of this Will or otherwise than under this
Will. . . . ,
(Exh A-4). Under this provision, property passing to Mrs. Mumma outside the will is
nonetheless part of the amount to which the 50% calculation is applied. The clause
containing the language regarding inclusion of assets passing outside the will directly
follows "my total gross estate as finally determined for Federal Estate Tax purposes,"and
therefore clearly was intended to modify that language. Because the total gross estate as
finally deternuned by the IRS was$17,296.337(Exh.A-3),the pecuniary a.mount yielded
by the calculation prescribed in Article SEVENTH is $8,648,169. Both Mrs. Morgan's
and Mrs. Mumma's expert, David Cleaver, and Mr. Mumma, II's expert, Jonathon Crist,
agreed that Mrs. Mumma's and Mrs. Morgan's interpretation is conect. (Cleaver 3788-
91; Crist 154, 202, 222).
However, Daniel Johnson, called as an expert by Babs [Barbara M.J Mumma,
testified that he believed the words "taking into account and including therein, for
computation purposes, my undivided interest in the value of a11 my interests in property
which pass or have passed to my wife under other provisions of this Will or otherwise
�s
Report of Auditor, filed August 7, 2013, at 85.
19
_
than under this Will" required that the amount bequeathed to the marital trust must be
reduced by the value of specific legacies to Mrs. Mumma,made in other parts of the will
and also by the value of property(such as insurance)includable in Mr. Mumrna's ta,�ble
estate but passing to Mrs. Mumma, outside the will. Based on his interpretation, gabs
Mumma's expert, Joseph Wilson, calculated thax Mrs. Mumma and Mrs. Morgan
overstated the pecuniary amount owed to the Marital Trust by$861,018. (Wilson Johnson
2493-94).
Mr. Johnson thus apparently interprets the words "taking into account and
including therein"as equivalent to language commonly found in wills drafted before the
enactment in 1981 of the unlimited estate tax marital deduction. The standard formula
clause in those wills reduced the marital deduction bequest by atnounts passing to the
spouse under other wi11 provisions or outside the Will to avoid overfunding the marita,l
bequest which at that time was limited to one-half of a decedent's gross taarable estate.
Such old clauses typically read"fifty percent of my goss estate, excluding therefrom the
value of a11 property passing to my wife under other Will provisions or outside my Will."
MI'• Mumma, Sr., of course, adopted an alternative formulation: "taking into account and
including therein." The change of language from "excluding therefrom" to "including
therein," reflected Mr. Mumma, Sr.'s obvious intention and clear specifica,tion that the
mantal Trust, which was certain to pass estate tax free and which would be Mrs.
Mumma's primary source of support (the Residuary Trust would bear any taxes and
esta.te settlement costs), and over which he granted Mrs. Mumma a right ta withdraw
annually 5% of the principal, equal 50% of the value of all his taxable assets—whether
they be other probate assets or property passing outside his will. (O'Connor 5150-51;
Cleaver 3789-91). Thus, both the language of Mr. Mumma, Sr.'s will and the
circumstances surrounding its drafting fully support Mrs. Mumma and Mrs. Morgan's
interpretation.76
Puyportedly unreasonable legal expenses incurred by co-executrices/trustees. It is
argued that the executrices/trustees have spent too much on legal fees.�� By way of
example, it is argued that the successful pursuit of litigation in Florida by the co-
executrices/trustees against the aforesaid beneficiary arising out af his misappropriation
of property of a corporation in the residuary trust constituted a breach of their fiduciary
duties, inasmuch as the legal fees associated with the litigation were disproportionate to
its benefit.78 It appears from the Florida records that the property found to have been
misappropriated by the said beneficiary had a value of hundreds of thousands of dollars;
it also appears that the plauitiffs were found, pursuant to a Florida statute, to be entitled to
76 Appendix to Brief of Barbara McK. Mumma, (Deceased) and Lisa M. Morgan in Opposition to
Objections of Barbara Mumma to Auditor's RepoR,at 8-10(footnote omitted).
"See Objections of Barbaza M. Mumma to Report of Auditor pocketed August 7, 2013, filed September
16,2013,at 36-38.
'$Objections of Barbara M. Mumma to Report of Auditor pocketed August 7, 2013,at 27.
20
an award of attomey's fees at all levels of the litigation, and that they were entitled to
interest.79
First, to the extent that a fmding of an improper expenditure by the fiduciaries for
Pi.u'sui-ng this litigation would benefit the aforesaid beneficiary—wl�ich it would, through
the vehicle of a surcharge—it would represent a repudiation of the legal maxim nemo ex
suo delicto meliorem suan conditionem focere potest—no man should profit from his own
wrong. Second, where the auditor has estimated that unsuccessful legal machinations by
the said beneficiary have cost the estate $5,000,000 in legal fees,80 and where it is said
that the estate lost another $10,000,000 due to the effect of his conduct upon the sale of a
major estate asset,81 the fiduciaries had, in the court's view, an obligation not to
encourage his activities by permitting the outright misappropriation of a trust asset, even
though the cost of doing so might be far from nominal. Finally, the success of the
litigation from the fiduciaries' standpoint as described above has fully demonstrated the
financial wisdom of their course of action.
It is also argued that "[t]he evidence presented to Auditor Buckley provided no
justification for having two cl.i.ifferent major law firms represent Lisa Morgan and, before
her death, Bazbara McK. Mumma, as co-executors and co-trustees throughout the long
lingahon of this case. Lisa Morgan claimed that this somehow reduced the total legal fees
� because the Marston [correctly, Martson] fum's hourly rates were less than those chazged
by Morgan Lewis & Bockius."82
In this case, involving a multi_million dollar estate, with major challenges to the
inexperienced fiduciaries in terms of (a) continuing to operate numerous business that
were vulnerable to the will of on-demand creditors83 and (b) fending off unparalleled and,
'�See Mumma v. Mumma,, 7gp So, 2d 1001, 1003, Fla.App. 4 Dist., 2001.
80 See R e port of Auditor, filed August 7, 2013,at 75,¶444.
g'See Report of Auditor, filed August 7, 2013,at 106.
8z Objections of Barbara M. Mumma to Report of Auditor pocketed August 7,2013,at 36.
83 See Testimony of Barbaza McK. Mumma, Transcript of Auditor's Hearing dated April 23, 2009, at
716-23.
21
in the court's view, unprincipled legal attacks on the part of a seemingly irie�chaustible
beneficiary,� it is hazdly surprising that the fiduciaries chose to avail the esta.te and trusts
of highly qualified professional counsel in order to conserve, preserve and grow their
assets. The charges of these professionals were fully accounted for and justified in
testimony before the auditor.85
Purportedly inaccurate valuations of estate assets. Objections are rnade to the
auditor's acceptance of the fiduciaries' valuations of various assets.S6 The strength of
these contentions is typified by the assertion that the auditor erred in declining to fault the
accountants for valuing a certain asset on the basis of its recent purchase price rather than
incurring the expense of an appraisal.g� Valuation of an asset on the basis of the price it
commanded at a recent sale is one of the most, if not the most, reliable of inethods of
valuation sanctioned by the courts. Glen Alden Coal Co. u Schuylkild County, 345 Pa.
159, 27 A.2d 239 (1942). It may also be noted that other valuations employed by the
fiduciaries were fu11y supported by competent witness testimony88 and that valuations
were ultimately agreed upon between the estate and Internal Revenue Service.89
Purportedly improper fiduciaty uccounting for a certain tractor. In thi$ mu]h_
million dollar estate, objection is made to the auditor's report that "[t]he word `tractor'
�See note 3 supra.
85 See Testimony of Lisa M. Mor�an, Transcript of Auditor's Hearing dated Apri128, 2010, at 5971-73;
see, e.g., Testimony of Ivo V. Otto, III, Transcript of Auditor's Hearing da.ted June 14, 2010, at 6843-48;
Testimony of Joseph A. O'Connor, Jr.,Transcript of Auditor's Hearing dated Apri122, 2010,at 5226-27.
86 See Supplemental and Conected Objections of Robert M. Mumma, II to August 7, 2013 Report of
Auditor Joseph D. Buckley, Esquire, filed September 19, 2013,at 23-27.
87 See Supplemental and Corrected Objections of Robert M. Mumma, II, to August 7, 2013 Report of
A jditor Joseph D. Buckley, Esquire, filed September 19, 2013, at 33-34, ¶¶128-30 (noting that the
ob'ection referred to the Auditor s finding that the Bender property was valued at the purchase price,paid
four months prior to the decedent's passing. See Report of Auditor,filed August 7,2013,at gg_g9).
g$See, e.g., Testimony of George Hadley, Transcript of Auditor's Hearing dated December 14, 2009, at
3601-03, 3624-26; Testimony of Harry I.ake, Transcript of Auditor's Hearin
1444-46; Testimony of George Hadley, Transcript of Auditor's Hearing dated Apri120, 2010,at�50'75977 t
89 See tTestimony of Joseph A. O'Connor, Jr., Transcript of Auditor's Hearing dated August 3, 2009, at
1646-47.
22
does not appear anyvvhere in the Auditor's Report," notwithstanding that an objection in
2010 to an account pertauung to the residuary trust contended that "[t]he Trustee
idenrifies the purchase of a $26,772 tractor as an administrahve expense and does not
identify the tractor as an asset of the [residuary] trust nor identify the tractor as bein
sold."90 The response to this on behalf of the co-executrices/trustees is sa ' �
court:
hsfactory to the
In response to $abs [Barbara M.] Mumma.'s questions [at the auditor's hearing],
Mrs. Mumma explained the background of the purchase of the tractor. The purpose of the
tractor was for use in mowing of the Amity Hall Horse Fartn, an asset owned by Mumma
Realty Associates and governed by the MRA-II Agreement (Morgan (1595-96). Due to
MRA-II's shorta,ge of cash, the Residual Trust, which owned more than 80% of�e
MRA-II assets, loaned funds to Mumma Realty Associates to purchase the tractor.
(Morgan 1596). The tractor became an asset of Mumma Realty Associates, and the
receivable from Mumrna Realty Associates was reflected in the Accouirt for the Residual
Tnxst• (Acct of Residual Trust,Jan 1, 2004-July 17,2010, Sch F at 22; Morgan 1596-99).
Babs Mumma offered no evidence to show either any impropriety with the loan, or that
the Residual Trust somehow was deprived of the value of the loaned funds. In fact, of
course, as the overwhelming majority owner of the Amity Hall Horse Farm under the
MRA-II Agreement, the Residual Trust derived value from the maintenance and upkeep
of the property, which the appraisals obtained by Mrs. Mumma and Mrs. Morga,n showed
appreciated in market value from $1 million at the date of Mr. M
T-8)to$5 million when Mrs. Mumma passed away. (Exh T-8,A02 10 2)r 'S d�� �E�
In any event, because the cost of the tractor was charged against income, the
principal beneficiaxies were not adversely affected . . . because Mrs. Mumma v�,as e�tled
to all of the income from the Residual Trust. (Acct of Residual Trust, Jan 1, 2004-July
17, 2010, Sch C-2 at 40). The expenditure thus simply reduced the amount of money she
was owed as income, while a11 of the principal beneficiaries derived the benefit of the
tractor as an asset of Mumtna Realty Ass�iates.91
Failure of auditor to note that fiduciary Lisa M. Morgan ultimately moved from
Harrisburg area. Barbara M. Mwnma, among her objections to the auditor's report, notes
that the auditor correctly found that Ms. Morgan "and her husband, then a practicin
attorney himself, moved to Harrisburg in 1987. Thereupon, according to the audito g
„92
�
90 Objections of Barbara M. Mumma to Report of Auditor pocketed August 7, 2013, filed September 16
2013,at 6. �
91 Supplemental Post-Hearing Brief of Barbara McK. Mumma (Deceased) and Lisa M. Morgan As
Executrices of and Trustees under the Will of Robert M. Mumma,at 20-21.
9Z Objections of Barbaza M. Mumma to Report of Auditor pocketed August '7, 2013, filed September 16,
2013,at 41;see Report of Auditor, filed August 7,2013,a.t 52.
23
she "worked full time on Rea1 Estate matters and was general counsel for all the Mumma
compames and �liated business[es] handling contract, personnel and labor issues"93
while "[the decedent's spouse) worked as the chief executive officer for a11 the
businesses."94 The fiduciaries then "hired a full time ro e M�a
p p rty manager and appraisers,
according to the auditor.95 However, the objector complains that the auditor failed to also
state that Ms. Morgan i,lltimately moved from the Harrisburg area.
At oral argument counsel for this objector, Barbara M. M ,
umma urged that the
court endeavor to separate the wheat from the chaff with respect to the multitude of
objections filed to the auditor's report. With this in mind, the court has found itself
unable to place this objection in the category of wheat.
Assessment ofAttorney's Fees and Costs. The auditor is faulted by the aforesa.id
beneficiary, Robert 11✓I. Mumma, II, for his recommenda.tion that the beneficiary bear
responsibility for one-half of the estate's attorney's fees and for half of the costs of the
auditor's proceedings.96 The auditor's observation that the beneficiary had proven
"obdurate" and "unprofessional toward the Court, [the auditor's] position, the other
attorneys and opposing parties" is dismissed by the objector as "conclusory."97
In th.is regard, it may be pointed out that the assessment of attorney's fees in esta.te
contests following auditors' hearings is common practice in the Commonwealth. See,
e.g., Estate ofBruner, 456 Pa. Super. 705, 691 A.2d 530 (1997). It has also long been the
nile that costs of auditors' proceedings may be appropriately apportioned among the
parties. Clauser's Estate, 84 Pa. 51 (1877).
�Report of Auditor, filed August 7, 2013,at 52.
�Report of Auditor, filed August 7, 2013,at 52.
9s Objections of Barbara M. Mumma to Report of Auditor pocketed August 7, 2013, filed September 16,
2013,at 52.
� See Supplemental and Corrected Objections of Robert M. Mumma, II, to August 7, 2013 Report of
Auditor Joseph D. Buckley, Esquire, filed September 19, 2013,at 35-36,¶¶135-41.
97 See Supplemental and Corrected Objections of Robert M. Mumma, II to August 7, 2013 Report of
Auditor Joseph D. Buckley, Esquire, filed September 19, 2013,at 35-36,¶¶135-41.
24
_ _ _ _ . _ _ _ _
Given the beneficiary's conduct in this case, the court is in full agreement with the
recommendations of the auditor on this point. Accordingly, a hearing vvill be scheduled to
determine the amounts to be assessed.
Surcharge. It follows from the foregoing that the court does not believe that the
various objections to the accounts of the fiduciaries demonstrate that they fiduciaries
should be subjected to surchargs for wrongdoing. In this regard, it is well settled that the
inirial burden of proving the propriety of such a sanction is upon the objectors. In re
Dobson's Estate, 490 Pa. 476, 417 A.2d 138 (1980). It may also be pointed out that the
testator's will specifically provided that the fiduciaries "shall not be liable for any error of
judgment provided that such error is honestly made."98 No dishonesty on the part of the
fiduciaries has been perceptible to the court.
Benficiary's renewat of motion for extension of time to file objectiorts to auditor's
report. Immediately following an "Introduction" to his 114-page compilation of
objections to the auditor's report, in which the aforesaid beneficiary decries the delay in
resolution of the testator's estate, is a section entitled "Renewal of Motion for Extension
of Time to File Objections."99 In this section, the said beneficiary complains that the
court erred in granting him an extension of only 30 days beyond the period provided in
the local orphans' cvurt rulesloo to file objections to the report, when he had requested a
55-day extension.lol He adds that "[i]t is expected that further supplementation will
98 Last Will and Testament of Robert M. Mumma, daxed May 19, 1982,at¶8.
�' Supplemental and Corrected Objections of Robert M. Mumma, II to August 7, 2013 ort
Joseph D. Buckley,Esquire, filed September 19,2013,at 4-5. �P of Auditor
10°See C.C.O.C.R. 8.7-2 (2p-day period provided for filing abjections to auditor's reports).
'o' Motion of Robert M. Mumma, II for Extension of Time To File Objections to August 7, 2013 Report
of Auditor Joseph D. Buckley, Esqulire, filed August 14, 2013. It may be noted that the court
subsequently also granted the beneficiary an extension of time within which to file his brief on the
objections. Order of Court,da,ted August 20, 2013.
25
consist primarily of providing more specific citations to hearing transcripts and evidence
in the record . . . ."1°2
Continuances in judicial proceedings are generally relegated to the sound
discretion of the court. Birdsall u Carbon County Bd. of Assessment, 168 Pa. Commw.
266, 649 A.2d 740 (1994). In this instance, given the background of delays occasioned
by the sa,id beneficiary and lus mtimate familia.rity with the case, the court was of the
view that an extension that more than doubled the time allotted in the rule for the filing of
ob�ecrions was sui�icient.
CONCLUSION
As President Judge Hess of this court wrote many yea,r$ ago in the context of
another case in which he perceived that a party "ha[d] attempted to gain [a favorable
result] by simple att:rition of the court system":l03
"The motions go on and on, but we will not."104
'02 Supplementa]and Conected Objections of Robert M. M
Joseph D. Buckley, Esquire, filed September 19,2013,at 5,¶17m.��Ij�August 7, 2013 Report of Auditor
'03 Commonweadth u Appel, 43 Cumb. L.J. 277(1994).
10�Commonwealth u Appel, 43 Cumb. L.J.277,283 (1994).
As noted in the introduction to this opinion, objections have also been filed to �nal auditor's report b
the accountants. Objections of Barbara McK. Mumma (Deceased) and Lisa Morgan As Executrices of
and Trustees under the Will of Robert M. Mumma to Report of Auditor, filed September 16, 2013, A
review of these objections revea.ls that they are either to the style of the report, to obvious typographical
errors, or to findings that do not rise to the level of determinative factors. For instance, while conceding
that the report"represents . . . a herculea,n effort to grapple with the highly-cornested administration of the
Estate and the Trusts by Mrs. Mumma and Lisa from April 1986 until July 2010" (id.,at 2), the
accountants argue that occasional "inconsistent terminology"with reference to various persons or entities
"poses the potential for confusion in the mind of any court that might review the Report in the context of
an appeal . , . ."Id., at 2. Indeed, the accountants have appended to their objections a 128-page revised
version of the auditor's report for the court's si
McK. Mumma being invariably identified as "Mrs�Mreumrna dnat 1�t15p inology—e,g.� �th Barbara
Examples of other objections of the accountants relate to (a) the correct identity of an attorney who
when the aforesaid beneficiary attempted to abscond with various corporate records during a discovery
session, chased him down the street and �
which a certain corporate errtity was incomrpor�ated (id.,at g g e documents(id., at 12-13), (b)the state in
forrn of an omission of "n o t" p r e c e d i n g t h e w o r d ro er )� �c� an obvious typogra phical error i n t h e
typographical enor in reference to the aforesaid benefi ciary's'record of failu e)priordliti�ation dvious
and so forth. g ( , 14),
26
_ _ _ _ _
__ _ _ _ _
ORDER OF COURT
AND NOW, th.is 30th day of April, 2014, upon consideration of the various
objections to the final auditor's report filed in the above-captioned esta,te, and for the
reasons stated in the accompanying opinion, it is ordered and d.irected as follows:
1. The objections aze dismissed and the accounts to which
objections have been filed are confirmed;los and
2. In accordance with the auditor's recommendation, a hearing to
deternune attorney's fees and costs is scheduled for Wednesday, June
25, 2014, at 9:30 a.m., in Courtroom No. 4, Cumberland County
Courthouse, Carlisle, Pennsylva.nia.
BY THE COURT,
/s/J. Weslev Oler Jr
J. Wesley Oler, Jr., S.J.
Joseph D. Buckley, Esq.
1237 Holly Pike
Carlisle, PA 17013
Auditor
Anthony L. DeLuca, Esq.
113 Front Street
Boiling Springs, PA 17007
Successor Auditor
The final auditor's report in this case is, in the court's view, a monument to juridical perseverance
under highly adverse conditions and a model of clarity given the comple�uty of the circumstances. The
report would not be improved by standa,rdizing its nomenclature. The rema,ining objections of the
accountants,while not technically inaccurate, will also be dismissed on de minimis grounds.
�os pt oral argument on the objections to the auditor's report the parties indic.a.ted that it would be
premature at this time to approve a certain schedule of distribution.
27
Taylor P. Andrews, Esq.
Andrews & Johnson
78 W. Pomfret St.
Carlisle, PA 17013
Former Auditor
Ivo V. Otto, III, Esq.
George B. Fa11er, Jr., Esq.
Martson Law Offices
10 East High Street
Carlisle, PA 17013
Brady L. Green, Esq.
Wilbraham, Lawler & Buba
31 st Floor
1818 Market Street
Philadelphia, PA 19103
Robert M. Mumma, II
Box F
Grantham, PA 17027
Richazd F, Rinaldo, Esq.
Williams Coulson LLC
16th Floor
One Gateway Center
Pittsburgh, PA 15222
Ms. Linda M. Mumma _
P.O. Box 30436
Bethesda, MD 20824
28
-
: ORPHANS' COURT DIVISION
. COURT OF COMMON PLEAS OF
In Re: ESTATE OF ROBERT M MUMMA . CUMBERLAND COiJNTY
. PENNSYLVANIA
. N0.21-86-0398
CERTIFICATE OF SERVICE OF ORDER
ORDER DATE: 9/10/14
NDGE'S INITIALS: JWO JR
TIME STAMP DATE: 9/10/14
IN RE: OPINION
............................................................................................................................
SERVICE TO: SHAUN O'TOOLE 220 PINE ST HARRISBURG PA 17101•IVO V OTTO/GEORGE FALLER 10
EAST HIGH ST CARLISLE PA 17013• BRADLEY L GREEN 31ST FL 1818 MARKET ST PHILADELPHIA PA 19103/
RICHARD F RINALDO 16T'-'FL ONE GATEWAY CENTER 16TH FL PITTSBURGH PA 15222;
LINDA M MUMMA PO 70 MECHANICSBURG PA 17055
ANTHONY DELUCA 113 FRONT ST BOILING SPRINGS PA 17007
METHOD OF MAILING: ENVELOPES PROVIDED BY:
�USPS ❑ PETITIONER
� � �NDGE
❑HAND DELIVERED ❑ CLERK OF ORPHANS COURT
❑ OTHER
MAILED:9/10/14
............................................................................................................................
SERVICE TO:
METHOD OF MAILING: ENVELOPES PROVIDED BY:
❑USPS ❑ PETITIONER
� � ❑NDGE
❑HAND DELIVERED ❑ CLERK OF ORPHANS COURT
❑ OTHER
MAILED:
_ ,
epu
Cl of Orphans' Court