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HomeMy WebLinkAbout03-09-92 IN RE: ESTATE OF ROBERT M. MUMMA, LATE OF CUMBERLAND COUNTY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : ORPHANS' COURT DIVISION : NO. 21-86-398 IN RE: PETITIONER'S MOTION OF ENTRY: OF DEFAULT JUDGMENT OR MOTION TO COMPEL DISCOVERY: BEFORE SHEELY, P.J. ORDER OF COURT AND NOW, this 6th day of March, 1992, the petitioner's motion for a default judgment is hereby denied. An additional hearing on the motion to compel is set for the 11th day of May, 1992, at 9:30 a.m., in Courtroom No.1, to allow respondents to testify, without the benefit of cross-examination of petitioner's testimony, due to their failure to appear at the last hearing. By the Court, ~ Jon A. Baughman, Esquire --mu.J....J - 3-10-'1';;< Charles E. Shields, III, Esquire William C. Costopoulos, Esquire For Defendant Robert M. Mumma, II Who is the Petitioner in this motion Ronald M. Katzman, Esquire -mu.U-3-lo-'i0l Jack O'Connor, Esquire--j'I)~-a-ro-9d. For Kim Mumma, Lisa Morgan and the Estate Who are the Respondents in this motion ?/rlq~ :pbf CJttrh fJkt4rH -3/IP/'l Z- 1573 :.;::. ~.f. 0.- 0' \ ,-.:,.. .~ ~ IN RE: ESTATE OF ROBERT M. MUMMA, LATE OF CUMBERLAND COUNTY : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION NO. 21-86-398 IN RE: PETITIONER'S MOTION OF ENTRY OF DEFAULT JUDGMENT OR MOTION TO COMPEL DISCOVERY BEFORE SHEELY, P.J. MEMORANDUM OPINION AND ORDER OF COURT Here we are asked to determine whether respondents' failure to appear for argument constitutes a basis to grant a default judgment or whether the motion to compel discovery should be granted without hearing testimony from the other side. We answer each in the negative. FACTS Robert M. Mumma died testate on April 12, 1986. Mr. Mumma's will (the will) and the codicil thereto were probated on June 5, 1986. The will appointed the decedent's widow, Barbara McK. Mumma and his daughter, Lisa M. Morgan, as executrices of Mr. Mumma's estate (the estate) and trustees of a marital trust and a residuary trust created thereunder (the trusts). Under the Will, the remaindermen of the trusts were the children of Mr. Mumma: Lisa M. Morgan, Robert M. Mumma, II, Linda M. Roth and Barbara McClure. On January 6, 1987, RMM, II executed a disclaimer of his interest under the will in favor of his children. At the time of the execution and filing of the disclaimer, RMM, II had two minor children. A third child was born on October 12, 1990. 1.574 NO. 21-86-398 On December 27, 1988, Mrs. Mumma and Mrs. Morgan, acting in their individual capacities and as executrices and trustees under the will, commenced an action in this court, docketed at No. 66 Equity 1988, seeking a declaratory judgment that, inter alia, RMM, II did not possess rights of first refusal to purchase certain businesses, real property and other assets owned by the estate. RMM, II had asserted these alleged rights in an effort to block the proposed sale of the businesses and assets for cash to a large and financially well-established Irish company. Mr. Mumma and Mrs. Morgan were unable to consummate the sale to the Irish company because of the legal position taken by RMM, II. Since that time, three additional equity actions have been filed. The estate of Robert M. Mumma is large and complex. Its administration has been characterized by its lack of free- flowing information, and conflict. Petitioner alleges that it was not until his local counsel petitioned for an accounting that its filing took place which was approximately five and on-half years after his father's death. In October 1991, petitioner filed a petition to compel, and this court issued a rule to show cause. These citations were served upon the executrices. Two months after the rule to show cause was issued, this court set a hearing date. Despite the adequate notice, respondents did not appear except for local counsel, who was unprepared to proceed. As a result, petitioners were allowed to proceed. Petitioners now seek a default judgment because no testimony was presented by the respondents. 1575 -2- NO. 21-86-398 DISCUSSION After a review of existing case law, we find no authority which would allow us to grant a default judgment for failure to appear at a hearing. Therefore, we are compelled to deny petitioner's motion for a default judgment. In addition, at the hearing, we held that we would set another date in order to give respondents an opportunity to testify. At that time, however, we also held that the respondents would lose their cross-examination privileges of petitioner's testimony for failing to appear. This is how we will proceed. ORDER OF COURT AND NOW, this 6th day of March, 1992, the petitioner's motion for a default judgment is hereby denied. An additional hearing on the motion to compel is set for the 11th day of May, 1992, at 9:30 a.m., in Courtroom No.1, to allow respondents to testify, without the benefit of cross-examination of petitioner's testimony, due to their failure to appear at the last hearing. By the Court, /s/ Harold E. Shee1v P.J. Jon A. Baughman, Esquire Charles E. Shields, III, Esquire William C. Costopoulos, Esquire For Defendant Robert M. Mumma, II Who is the petitioner in this motion Ronald M. Katzman, Esquire Jack O'Connor, Esquire For Kim Mumma, Lisa Morgan Who are the Respondents in and the Estate this motion :pbf 1576 -3-