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HomeMy WebLinkAbout07-28-03 C,; . " IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA IN RE ESTATE OF ROBERT M. MUMMA, ORPHANS' COURT DIVISION Deceased. NO. 21-86-398 TO: Robert M. Mumma, II and James J. West, Esquire YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER OF BARBARA McK. MUMMA AND LISA M. MORGAN TO PETITION FOR REMOVAL WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAYBE ENTERED AGAINST YOU. \ UJ~~ ~'\ , w' Ivo V. Otto III MARTSON DEARDORFF WILLIAMS & OTTO Ten East High Street Carlisle, P A 17013 (717) 243-3341 '" <? ~ ;c:. Joseph A. O'Connor, Jr. Brady L. Green MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, PA 19103-2921 (215) 963-5079 , " '" I ~~L Attorneys for Barbara McK. Mumma Lisa M. Morgan Date: July 28, 2003 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA IN RE ESTATE OF ROBERT M. MUMMA, ORPHANS' COURT DIVISION Deceased. NO. 21-86-398 ANSWER WITH NEW MATTER OF BARBARA McK. MUMMA AND LISA M. MORGAN TO PETITION FOR REMOVAL Barbara McK. Mumma and Lisa M. Morgan respond as follows to the petition of Robert M. Mumma, II ("Mr. Mumma, II") to remove them as executrices and trustees: 1. Denied. The allegations of this paragraph constitute legal conclusions to which no response is required. Moreover, the paragraph simply sets forth the purported legal bases for Mr. Mumma, II's allegations, as to which Mrs. Mumma and Mrs. Morgan lack information sufficient to enable them to admit or deny those allegations. All such allegations therefore are denied. 2. Admitted. 3. Admitted in part, denied in part. It is admitted that Robert M. Mumma ("Mr. Mumma, Sr.") left a will dated May 19, 1982 which was duly admitted to probate, and that letters testamentary were issued to Mrs. Mumma and Mrs. Morgan, who have acted as executrices ofthe estate of and trustees of the trusts established under the will ofMr. Mumma, Sr. for more than 15 years. By way of further response, there also was a codicil dated October 12, 1984 to Mr. Mumma, Sr. 's will, which was admitted to probate along with the will itself. Mrs. Mumma and Mrs. Morgan admit that Exhibit A to the petition is a true and correct copy of the will and codicil. The remaining allegations of this paragraph purport to summarize the contents of selected portions of the will, which is in writing and speaks for itself. All such characterizations therefore are denied. 4. Denied. Mrs. Mumma and Mrs. Morgan lack information sufficient to enable them to admit or deny the allegations ofthis paragraph. All such allegations therefore are denied. By way further response, Mrs. Mumma and Mrs. Morgan understand, upon information and belief, that Mr. Mumma, II maintains a home in Bowmansdale, Pennsylvania. He has, however, testified or otherwise stated on various occasions that he is a resident of Florida. 5. Admitted. 6. Admitted. 7. Denied. The allegations ofthis paragraph and its subparagraphs constitute legal conclusions to which no responsive pleading is required. Moreover, the allegations are vague and ambiguous and lack the necessary specificity to enable Mrs. Mumma and Mrs. Morgan to form a complete response. All such allegations therefore are denied. To the extent that a further response is required, Mrs. Mumma and Mrs. Morgan have administered the estate and the trusts to the best of their abilities and consistent with their duties. Their efforts repeatedly have been hampered by litigation filed and other actions taken by Mr. Mumma, II. Mrs. Mumma and Mrs. Morgan respond as follows to the allegations in the lettered subparagraphs of this paragraph: (a) Denied. Mrs. Mumma and Mrs. Morgan deny that they have engaged in oppressive or improper conduct, or that they have refused to produce or prevented others from producing records relating to the estate to persons entitled to those records. On the contrary, Mrs. Mumma, Mrs. Morgan, the family-owned businesses, their present and former attorneys and accountants have produced thousands and thousands of pages of documents to Mr. Mumma, 2 II and other beneficiaries, both formally and informally. That Mr. Mumma, II has been or remains unsatisfied with the content of those documents does not constitute evidence that insufficient information has been provided. Mrs. Mumma and Mrs. Morgan have fully complied with their fiduciary duties, and have provided all beneficiaries with all information to which they are entitled. (b) Denied. Mrs. Mumma and Mrs. Morgan are not able to ascertain the source of the figures stated in the petition. They deny, however, the specific allegations. The specific values of various assets and the specifics of various transactions are set forth and described in tax returns, financial statements, accounts and numerous other documents which have been provided and/or are otherwise available to Mr. Mumma, II. Moreover, Mrs. Mumma and Mrs. Morgan deny that they intend to file appropriate accounts. On the contrary, they have filed multiple interim accounts and will continue to file accounts as appropriate. ( c) Admitted in part, denied in part. It is admitted that no final accounting has been filed for the estate and the trusts. Indeed, the trusts are still in existence and no final accounting is possible. Likewise, Mr. Mumma, Sr.'s estate has not been closed, in large measure due to the actions ofMr. Mumma, II, as set forth more fully in Mrs. Mumma and Mrs. Morgan's new matter below. Mrs. Mumma and Mrs. Morgan have filed multiple interim accounts regarding the estate and the trusts, and are continuing their efforts to close the estate. Mrs. Mumma and Mrs. Morgan do not know what is meant by Mr. Mumma, II's allegations regarding the purported failure to file a "complete tax return." However, federal and Pennsylvania estate tax returns were timely filed following Mr. Mumma, Sr.'s death. (d) Denied. With regard to the production of documents to Mr. Mumma, II and the alleged oppression of beneficiaries under Mr. Mumma, Sr.'s will, Mrs. Mumma and 3 Mrs. Morgan incorporate by reference their response to paragraph 7a above and their new matter below. Mrs. Mumma and Mrs. Mumma deny that they have illegally converted assets to their own use and purposes. (e) Admitted in part, denied in part. Mrs. Mumma and Mrs. Morgan admit that they have, in their representative capacities, voted stock owned by Mr. Mumma, Sr.'s estate and/or the trusts established under his will. Mrs. Mumma and Mrs. Morgan deny that there has been anything improper regarding their voting of such stock. Without further information regarding the circumstances to which Mr. Mumma, II refers in his allegations, Mrs. Mumma and Mrs. Morgan cannot respond more specifically, and the allegations therefore are denied. (f) Denied. Mrs. Mumma and Mrs. Morgan are aware of no relevant aspects of corporate histories or backgrounds that have not been ascertainable from corporate books and records and/or other sources of information, such as public filings, tax returns, regularly prepared financial statements or other materials and information. Mrs. Mumma and Mrs. Morgan also deny that they have kept any such shortcomings secret or hidden them or that, to their knowledge, there are any material defects in the corporate books and records. With regard to the production of documents and information - including the document attached as Exhibit F to Mr. Mumma, II's petition - see Mrs. Mumma and Mrs. Morgan's response to subparagraph 7a above and their new matter below. (g) Admitted in part, denied in part. It is admitted that the stock book of Pennsylvania Supply Company presently cannot be located. Mrs. Mumma and Mrs. Morgan have conducted a diligent search, and have been unable to locate the book or confirm its last whereabouts. The remaining allegations of this subparagraph are denied. While Mr. Mumma, II 4 has made various allegations regarding the theft of documents from a safe deposit box at Dauphin Deposit Bank & Trust Company, and has initiated litigation against Dauphin Deposit alleging such an occurrence, Mrs. Mumma and Mrs. Morgan are aware of no information suggesting or confirming that such theft occurred or that any documents or materials were improperly removed. (h) Denied. On the contrary, the vast majority of the litigation matters in which Mrs. Mumma and Mrs. Morgan have become involved as executrices and trustees were initiated by Mr. Mumma, II. Where Mr. Mumma, II's conduct has necessitated the filing of litigation by Mrs. Mumma and Mrs. Morgan, that litigation has generally been successful and their litigation positions have been recognized as meritorious by the courts. Mrs. Mumma and Mrs. Morgan also deny that any litigation positions they have taken were not in the best interest of Mrs. Mumma, Sr. 's estate or the trusts established under his will. Again, without further information regarding the circumstances to which Mr. Mumma, II refers in his allegations, Mrs. Mumma and Mrs. Morgan cannot respond more specifically. (i) Denied. Mrs. Mumma and Mrs. Morgan deny that they have improperly concealed information regarding any potential sale of assets from persons entitled to that information. By way of further response, Mr. Mumma, II has used information provided regarding a number of potential sales to thwart those transactions, to the detriment ofMr. Mumma, Sr. 's estate and the trusts established under his will. 8. Denied. The allegations of this paragraph constitute legal conclusions to which no responsive pleading is required. All such allegations therefore are denied. 5 NEW MATTER 1. Almost from the outset, Mrs. Mumma and Mrs. Morgan's actions as executrices ofthe estate of and trustees of the trusts established under the will of Mr. Mumma, Sr. have been hampered by the actions ofMr. Mumma, II. 2. Mr. Mumma, II first initiated litigation involving aspects of his father's estate in 1988. At that time, he filed an action, through one of his companies, described by the court as "a son suing his mother over his deceased father's car." Gemini Equipment Co. v. Pennsy Supply, Inc., No. 3205 S 1988, Opinion (C.P. Dauphin. Apr. 26,1990), ajJ'd, 407 Pa. Super. 404, 595 A.2d 1211 (1991). 3. Mr. Mumma, II also filed in 1988 litigation relating to the operations and activities of Lebanon Rock, Inc., a corporation 50% owned by the estate and 50% owned by Mr. Mumma, II. That litigation lasted for a number of years. In an opinion on an appeal by Mr. Mumma, II from a trial court ruling, the Superior Court commented that "[Mr. Mumma, II's] past conduct evidences that he will exceed all bounds to force a favorable result." Lebanon Rock, Inc. v. Elco Concrete Prods., Inc., No. 373HBG90, Memorandum (Pa. Super. July 3, 1991). 4. In response to notice that Mrs. Mumma and Mrs. Morgan were negotiating the sale of certain family-owned businesses and assets to a third party, Mr. Mumma, II asserted that he possessed certain rights of first refusal to purchase those businesses and assets, and wrote to the potential buyer to that effect. Mr. Mumma, II's actions resulted in decision by the buyer to withdraw from negotiations. As a result, the sale, for which Mrs. Mumma and Mrs. Morgan had negotiated a purchase price of more than $50 million, did not go forward. 6 5. Mrs. Mumma and Mrs. Morgan were forced to commence litigation to obtain a determination that Mr. Mumma, II did not possess first refusal or other rights precluding them from selling estate-owned assets to third parties. Judge Sheely consistently held that Mr. Mumma, II did not possess those rights. See Barbara McK. Mumma, et al. v. Robert M Mumma. II, et aI., No. 21-86-398, Opinion and Order (O.C. Cumberland Mar. 8, 1989) (precatory language in will did not create first refusal right), appeal discont., No. 206 Harrisburg 1989 (Pa. Super. May 17, 1989); Barbara McK. Mumma. et al. v. Robert M Mumma, II, et al., No. 66 Equity 1988, Opinion and Order (C.P. Cumberland Mar. 24, 1992) (Mr. Mumma, II did not possess oral or contractual first refusal right), post-trial motion denied and final decree entered, Opinion and Order (C.P. Cumberland Nov. 5,1992), aff'd, 433 Pa. Super. 660, 639 A.2d 846 (1993), allocatur denied, 539 Pa. 679, 652 A.2d 1324 (1994). 6. Following Judge Sheely's decisions that Mr. Mumma, II did not possess the rights he claimed, Mrs. Mumma and Mrs. Morgan negotiated and consummated a transaction in which estate- and trust-owned assets were sold to a third party. The purchase price, due to a decline in economic and market factors since the time ofthe original negotiations, was significantly lower than that originally negotiated by Mrs. Mumma and Mrs. Morgan. 7. Mr. Mumma, II sought to enjoin the closing of the transaction. Judge Sheely denied Mr. Mumma, II's request for an injunction. He concluded that Mr. Mumma, II's conduct in frustrating the original sale cost the family "approximately $20 million dollars." In re Estate of Robert M Mumma, Deceased, No. 21-86-398, Opinion and Order of Court (O.C. Cumberland Aug. 4,1993), aff'd, 437 Pa. Super. 672, 649 A.2d 467 (1994). 8. Mr. Mumma, II also challenged the terms of the consummated sale in an action filed in Philadelphia County. That action ultimately was discontinued after the court ordered the 7 case transferred to Cumberland County. At that point, Mr. Mumma, II signed a consent and received his share of the sale proceeds. Robert M Mumma, IL et al. v. D-E Distribution Corp., et al., No. 666 Equity, Nov. Term 1993 (C.P. Philadelphia Jan. 20, 1995), appeal dismissed, No. 714 Philadelphia 1995 (Pa. Super. Mar. 20, 1995). 9. Mr. Mumma, II also sought to enjoin a subsequent closing after the purchaser elected to exercise an option granted in the original transaction to purchase the estate's interest in another corporation. This Court denied that request following a hearing. In re Estate of Robert M Mumma, Deceased, No. 21-86-398, Order (C.P. Cumberland Dec. 11, 1993). 10. Notwithstanding the rulings against him in these cases, Mr. Mumma, II continues to claim various rights to purchase estate- and trust-owned assets. Mr. Mumma, II also has continued to file legal actions seeking to reverse the sale of the family-owned businesses, which occurred more than ten years ago. 11. Mr. Mumma, II's litigation assault has also included the filing of various additional actions naming Mrs. Mumma and Mrs. Morgan as defendants and alleging various improprieties in their actions as fiduciaries and/or officers and directors of the family-owned businesses. See Robert M Mumma, IIv. Nine Ninety-Nine, Inc., et al., No. 14 Equity 1990 (C.P. Cumberland); Robert M Mumma, IIv. Nine Ninety-Nine, Inc., et al., No. 15 Equity 1990 (C.P. Cumberland); Robert M Mumma, II v. Barbara McK. Mumma, et al., No. 84 Equity 1990 (C.P. Cumberland); Robert M Mumma, IIv. CRR Inc., et aI., No. 99-1546 (C.P. Cumberland); Robert M Mumma, IIv. Bobali Corp., et al., No. 5683 Equity of2000 (C.P. Dauphin).. The Court granted non pros as to three of these actions. Robert M. Mumma, II v. Nine Ninety-Nine, Inc, et al., No. 14 Equity 1990, Opinion and Order (C.P. Cumberland Mar. 27, 1997), appeal dismissed, No. 432 Harrisburg 1997, Order (Pa. Super. July 24,1997); Robert M Mumma. IIv. Nine 8 Ninety-Nine, Inc, et ai., No. 15 Equity 1990, Order (C.P. Cumberland Feb. 20, 1997); Robert M Mumma, IIv. Barbara McK. Mumma, et al., No. 84 Equity 1990, Order (C.P. Cumberland Feb. 20, 1997). The others remain pending. 12. In addition, Mr. Mumma, II filed a complaint against Mrs. Morgan, with the Office of Disciplinary Counsel of the Supreme Court of Pennsylvania, and sought to persuade the District Attorney of Dauphin County to investigate his mother's actions in managing family- owned properties. See Trial Testimony ofMr. Mumma, II, Mumma v. Mumma, No. 66 Equity 1988 (C.P. Cumberland Mar. 13, 1991), at 710-12. No action was taken by the authorities on either of these complaints. 13. Mr. Mumma, II also has filed numerous lis pendens proceedings against real property owned by entities in which Mr. Mumma, Sr. 's estate and/or the trusts established under his will own a controlling interest. See Robert M Mumma, II v. Mumma Realty Associates, No. 91-12 Equity (C.P. Perry); Robert M Mumma, II v. Mumma Realty Associates, No. 5007 Equity 1991 (C.P. Dauphin); Robert M. Mumma, IIv. Mumma Realty I, et al., No. 3932 S 1999 (C.P. Dauphin); Robert M. Mumma, II v. Mumma Realty 1, et al., No. 99-811/99-10 LIS PEN (C.P. Perry); Robert M. Mumma, IIv. Mumma Realty 1, et ai., No. 99-5569 (C.P. Cumberland). 14. Mr. Mumma, II also has filed numerous actions against the attorneys, bankers and accountants for and the purchaser of assets from the estate, the trusts and/or various family- owned corporations. IS. This petition is not Mr. Mumma, II's first attempt to have Mrs. Mumma and Mrs. Morgan removed as fiduciaries. On the contrary, he has repeatedly attempted to have Mrs. Mumma and Mrs. Morgan removed as or limited in their capacities as executrices and trustees. Mr. Mumma, II first petitioned to remove Mrs. Mumma and Mrs. Morgan in January 1989. He 9 . , , has since sought appointment of a temporary fiduciary, and also has attempted on two occasions to enjoin significant transactions into which Mrs. Mumma and Mrs. Morgan sought to enter on behalf of the estate and the trusts. None of Mr. Mumma, II's requests in this regard has been granted. 16. Indeed, Judge Sheely, in ruling upon prior petitions and motions filed by Mr. Mumma, II in these proceedings, rejected Mr. Mumma, II's characterizations of the actions of Mrs. Mumma and Mrs. Morgan in their administration of Mr. Mumma, Sr.' s estate. See In re Estate of Mumma, No. 21-86-398, Opinion and Order at 8 (O.c. Cumberland Mar. 6, 1992) ("if anyone is hampering [the administration of the estate] or endangering the estate, it is [Mr. Mumma, II]"); In re Estate of Mumma, No. 21-86-398, Opinion and Order at 6-7 (D.C. Cumberland Nov. 5, 1992) ("it is evident that if anyone is acting in detrimental fashion in regard to the estate, it is [Mr. Mumma, II]"). Conversely, Judge Sheely stated that "the executrices are managing the assets ofthe estate for the best interests of the estate." Id. at 6; see also id. at 4 ("the record provides an abundance of evidence in support of the executrices in their efforts to prudently and reasonably administer the assets of the estate"). 17. Many of Mr. Mumma, II's demands and accusations have occurred in a context in which he has operated businesses that acted in direct competition with those in which the estate and/or the trusts owned a competing interest. See In re Estate of Mumma, No. 21-86- 398, Proceedings before Sheely, PJ. (D.C. Cumberland May II, 1992) ("I can certainly see that there. . . is competition from [Mr. Mumma, II's] businesses. . .").1 1 Mr. Mumma, II's course of conduct is the apparent fulfillment of threats made to Mrs. Mumma to enter into competition with and "bankrupt" the family businesses and to "see you in court until the day you die." See Hearing Testimony of Mrs. Mumma, In re Litigation Involving Elco Concrete Products, Nos. 4678, 4722 and 4744 Equity and No. 3210 S 1988 (C.P. Dauphin Apr. 28,1989), at 22-23; Hearing Testimony of Mrs. Mumma, In re Litigation Involving Elco (continued). 10 18. Mr. Mumma, II also has claimed, without justification or support, repeatedly that Mrs. Mumma and Mrs. Morgan do not hold offices or positions with various companies and entities to which they have been duly elected, or that they, the estate and/or the trusts do not own stock or other interests demonstrated in corporate records, financial statements, tax returns or other documents. His conduct has repeatedly impeded Mrs. Mumma and Mrs. Morgan from entering into transactions or taking other steps they deemed to be in the best interest of the estate and the trusts. 19. Mr. Mumma, II's actions to fiustrate the orderly administration of the estate and the trusts by Mrs. Mumma and Mrs. Morgan has continued to the present. While he complains that the estate is still open, he has objected to, among other things, the transfer of various stock and other assets from the estate to the marital trust - a step necessary before the estate can be closed - and also refused to the consent to the retitling of real estate and other actions necessary formally to close the estate.I 20. Mr. Mumma, II also has communicated with property managers and others retained by Mrs. Mumma and Mrs. Morgan to assist them in their duties in a way that has interfered with or complicated the administration ofthe estate and the trusts. 21. Mr. Mumma, II's actions inside and outside the formal litigation context have substantially increased the expense and time associated with the administration of the estate the trusts, to the detriment of all ofthose holding interests under Mr. Mumma, Sr. 's will. His actions Concrete Products, Nos. 4678, 4722 and 4744 Equity and No. 3210 S 1988 (C.P. Dauphin Jan. 24, 1992), at 102-03. I As one example, there is a property in Leadville, Colorado titled in Mr. Mumma, Sr.'s name. Mrs. Mumma and Mrs. Morgan retained counsel to assist them in having the property re-titled so as to allow it to be transferred from the estate. Upon receipt of (continued). II have resulted in hundreds of thousands of dollars in otherwise unnecessary litigation and other expenses, all of which has detracted from the value of the estate and the trusts to the beneficiaries. 22. Mr. Mumma, II's primary tactic in frustrating Mrs. Mumma and Mrs. Morgan in their actions as fiduciaries has been repeatedly to claim that he has received insufficient infonnation. In some cases, he is seeking infonnation relating to activities occurring 20 or more years prior to Mr. Mumma, Sr.'s death, and years prior to Mrs. Mumma and Mrs. Morgan's commencement as fiduciaries under his will. 23. When additional infonnation is produced to Mr. Mumma, II's ever-evolving demands, it inevitably undercuts his contentions. His response is (a) to claim that the infonnation provided is inadequate, has been falsified, etc., and/or (b) to demand still more infonnation. Mr. Mumma, II has been provided, in toto, with 20,000 or more pages of documents relating to the estate, the trusts and/or family-owned businesses, properties and assets. 24. Despite Mr. Mumma, II's actions, Mrs. Mumma and Mrs. Morgan have continued to fulfill their fiduciary duties and responsibilities. Mr. Mumma, II's multifarious allegations of misconduct have never been adopted or recognized by the courts, despite days of courtroom testimony, numerous depositions, scores of motions and dozens of written opinions and orders by this Court and others. 25. Mr. Mumma, II, in essence, now seeks in his petition to assert his own outrageous conduct as a basis for the removal of Mrs. Mumma and Mrs. Morgan. Of course there has been strife among those interested in Mr. Mumma, Sr.'s will- Mr. Mumma, II's notice from counsel, Mr. Mumma, II contacted counsel and threatened him with litigation if he proceeded to finalize the transaction. 12 ceaseless litigation and harassment have made that inevitable. However, the Court should not permit Mr. Mumma, II to create such difficulties, and then profit from them by accepting them as evidence that Mrs. Mumma and Mrs. Morgan are not properly administering the estate and the trusts. 26. In addition, Mr. Mumma, II's actions toward Mrs. Mumma and Mrs. Morgan have occurred in the context of a situation in which, by virtue of his having disclaimed his interest under Mr. Mumma, Sr. 's will, there exist serious questions as to whether he has standing to challenge any of the actions taken by Mrs. Mumma and Mrs. Morgan. In this regard, Mrs. Mumma and Mrs. Morgan incorporate by reference herein their amended exceptions to this Court's adjudication of February 23,2000. WHEREFORE, Mrs. Mumma and Mrs. Morgan respectfully request that the Court enter an order dismissing the petition and granting any and all such additional relief as may be appropriate. ~~r--- Ivo V. Otto, III ' MARTS ON, DEARDORFF, WILLIAMS & OTTO 10 East High Street Carlisle, PA 17013 717.243.3341 Joseph A. O'Connor, Jr. Brady 1. Green MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, PA 19103-2921 215-963-5079 Attorneys for Barbara McK. Mumma Lisa M. Morgan 13 . . VERIFICATION I, Brady L. Green, verify that: (a) I am counsel for Barbara McK. Mumma and Lisa M. Morgan in the above-captioned matter; (b) Barbara McK. Mumma and Lisa M. Morgan are outside the jurisdiction of the Court and the verification of neither can be obtained within the time required for filing of the foregoing answer with new matter; and (c) the averments in the foregoing answer with new matter are true and correct to the best of my knowledge, information and belief. I acknowledge that this verification is made subject to the penalties of 18 Pa.C.S. S 4904 relating to unsworn falsification to authorities. Date: July 28, 2003 CERTIFICATE OF SERVICE I hereby certify that on this 28th day of July, 2003, a true and correct copy of the foregoing Answer with New Matter of Barbara McK. Mumma and Lisa M. Morgan to Petition for Removal, was served upon the party named below by depositing same in the United States Mail, First Class, postage prepaid, and addressed as follows: James J. West, Esquire WEST LONG, LLC. 105 North Front Street Suite 205 Harrisburg, PA 17101 ('LJ/tA~%~ Corrine 1. Myers Paralegal 14 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA IN RE ESTATE OF ROBERT M. MUMMA, ORPHANS' COURT DIVISION Deceased. NO. 21-86-398 AMENDED AND REST A TED EXCEPTIONS OF BARBARA McK. MUMMA AND LISA M. MORGAN TO ADJUDICATION OF FEBRUARY 23, 2000 Barbara McK. Mumma ("Mrs. Mumma") and Lisa M. Morgan ("Mrs. Morgan"), executrices of the estate and trustees under the will of Robert M. Mumma, deceased ("Mr. Mumma, Sr."), in order to permit them to close Mr. Mumma, Sr.'s estate and properly administer the trusts established under his will, hereby amend and restate their exceptions to this Court's Order dated February 23,2000, as follows: I. Mr. Mumma, Sr. died testate on April 12, 1986. His will appointed Mrs. Mumma, decedent's widow, and Mrs. Morgan, one of his daughters, as executrices thereof and as trustees of two trusts created thereunder. The presumptive remaindermen of the trusts were Mr. Mumma Sr. 's children, including Robert M. Mumma, II ("Mr. Mumma, II"), if they survive Mrs. Mumma. 2. On January 6, 1987, Mr. Mumma, II executed an irrevocable disclaimer of his interest under the will (the "Disclaimer") in which he "absolutely, irrevocably and unqualifiedly" revoked and disclaimed all his rights in and to the principal ofthe trusts. Mr. Mumma, II's Disclaimer had the effect of substituting his three children as remaindermen of his share of the trusts in his place. Two ofMr. Mumma, II's three children are minors. 3. On June 20,1989, Mr. Mumma, II petitioned to revoke his Disclaimer. The petition was opposed by Robert M. Frey, Esquire as guardian ad litem on behalf of Mr. Mumma, II's minor children. On November 17, 1989, President Judge Sheely granted Mr. Mumma, II's petition, and on March 21,1991, he entered an Opinion and Decree Nisi directing that Mr. Mumma, II be permitted to revoke his Disclaimer. 4. On July 21, 1993, Judge Sheely denied Mr. Frey's exceptions to the rulings permitting Mr. Mumma, II to revoke his Disclaimer. Mr. Frey appealed. The Superior Court dismissed Mr. Frey's appeal from the denial of his exceptions on the ground that "Mr. Frey lacks standing to appeal the decision to revoke [Mr. Mumma, IIJ 's disclaimer. . . . " because "the attempt to represent the minor children with respect to the revocation of [Mr. Mumma, Ill's disclaimer is beyond the scope ofMr. Frey's limited appointment" as guardian. In re Estate of Robert M. Mumma, Mem. Op., at 2 (Pa. Super. July 18, 1994) (emphasis supplied). 5. In response to Mr. Mumma, II's December 22, 1998 petition for an accounting for Mr. Mumma, Sr. 's estate, Mrs. Mumma and Mrs. Morgan asked the Court to appoint a guardian ad litem to represent Mr. Mumma, II's minor children with respect to a determination of the validity of the revocation of his Disclaimer. Mrs. Mumma and Mrs. Morgan expressed no objection to filing an accounting. In fact, they filed second and interim and third and interim accounts for the estate and the trusts in May and June 2000. 6. On February 23,2000, this Court issued an Order and Opinion granting Mr. Mumma, II's petition for a final accounting and denying Mrs. Mumma's and Mrs. Morgan's motion for the appointment of a guardian ad litem for Mr. Mumma, II's minor children. A true and correct copy of the February 23,2000 Order and Opinion is attached as Exhibit A. 2 7. On March 3, 2000, Mrs. Mumma and Mrs. Morgan filed exceptions to the Order of this Court dated February 23, 2000. A true and correct copy ofthe exceptions is attached as Exhibit B. 8. Mrs. Mumma and Mrs. Morgan also filed a notice of appeal in the Superior Court of Pennsylvania in order to preserve all rights on appeal and avoid waiver of any rights to appeal with respect to the same issues and matters complained of in their exceptionsI 9. Mr. Mumma, II filed an answer to exceptions, with new matter, on April 17, 2000, and Mrs. Mumma and Mrs. Morgan responded with a reply to new matter on May 8, 2000. True and correct copies of these documents are attached as Exhibits C and D. 10. This Court has not ruled on the exceptions. 11. The Superior Court subsequently quashed Mrs. Mumma's and Mrs. Morgan's appeal. In an Order dated January 3,2001, the Superior Court held that this Court's February 23, 2000 Order "was not final because it did not dispose of all claims and of all parties." The Superior Court observed that "further litigation is contemplated, as evidenced by [Mrs. Mumma's and Mrs. Morgan's) filing of exceptions." In re Estate of Robert M. Mumma, Mem. Op., at 4 (Pa. Super. January 3, 2001). A true and correct copy ofthe Superior Court's Memorandum is attached as Exhibit E. 12. The Superior Court's ruling, in essence, referred the matter back to this Court for resolution of the pending exceptions. ! Mrs. Mununa and Mrs. Morgan filed exceptions and a notice of appeal due to a concern regarding whether the filing of exceptions under former Pennsylvania Orphans' Court Rule 7.1 ("[ e )xceptions shall be filed at such place and time, shall be in such form, copies thereof served and disposition made thereof as local rules shall prescribe") tolled the running of the time for an appeal from the decision to which exceptions were filed, or whether an appeal could be taken without exceptions first having been filed. Local Orphans' Court Rules 7.1-1, 7.1-2 and 7.1-3 do not speak to these issues. A 2000 amendment to the state rule clarified that "[i]f exceptions are filed, no appeal shall be filed until the disposition of exceptions. . . . Failure to file (continued), 3 13. As a consequence of the foregoing decisions, no person with standing on behalf ofMr. Mumma, II's minor children (who are beneficiaries of the estate ifthe revocation is held not valid) has been able to question the validity ofMr. Mumma, II's revocation of his Disclaimer. 14. Mrs. Mumma and Mrs. Morgan, as fiduciaries, wish to proceed with the closing of Mr. Mumma, Sr.'s estate, and to properly account with respect to their activities with respect to it. In order to do so, they must know who are the proper persons to whom they must account and who, ultimately, will be the beneficiaries of the estate and of the trusts. 15. If Mrs. Mumma and Mrs. Morgan improperly account to persons who are not beneficiaries under Mr. Mumma, Sr.'s will, or if they distribute property to or enter into arrangements with such persons, they may face a risk of liability to individuals properly interested in the estate and the trusts. 16. Mrs. Mumma and Mrs. Morgan, as fiduciaries, seek to ensure that the issue of the validity ofMr. Mumma, II's revocation of his Disclaimer is fully litigated on behalf of Mr. Mumma, II's minor children. 17. The need for a final determination, following proceedings by parties with standing to raise the issue, is underscored by Mr. Mumma, II's latest filing in this matter. On or about May 14, 2003, Mr. Mumma, II filed a petition for removal of Mrs. Mumma and Mrs. Morgan as executrices and trustees.l 1 exceptions shall not result in waiver if the grounds for appeal are otherwise properly preserved." Pa.O.C.R. 7.I(a). By Order ofthe Court dated May 15, 2003, a citation was entered upon Mrs. Mununa and Mrs. Morgan to show cause why Mr. Mununa, II's petition for removal should not be granted within sixty (60) days of service. 4 18. Adjudication ofMr. Mumma, II's alleged grievances regarding the administration ofthe estate and the trusts promises to be protracted. Since his father's death, Mr. Mumma, II has repeatedly challenged various actions taken by Mrs. Mumma and Mrs. Morgan. 19. In addition, he has repeatedly attempted to have Mrs. Mumma and Mrs. Morgan removed as or limited in their capacities as executrices and trustees. Mr. Mumma, II first petitioned to remove Mrs. Mumma and Mrs. Morgan in January 1989. He has since sought appointment of a temporary fiduciary, and also has attempted on two occasions to enjoin significant transactions into which Mrs. Mumma and Mrs. Morgan sought to enter on behalf of the estate and the trusts. None ofMr. Mumma, II's requests in this regard have been granted. See, e.g., In re Estate of Mumma, No. 21-86-398, Opinion and Order at 6-7 (O.c. Cumbo Nov. 5, 1992) ("it is evident that if anyone is acting in detrimental fashion in regard to the estate, it is [Mr. Mumma, II]"). 20. Before Mrs. Mumma and Mrs. Morgan - and Mr. Mumma, Sr.'s estate- should be required to incur the time and expense necessary to respond to Mr. Mumma, II's petition, the question whether Mr. Mumma, II has standing even to file a petition for removal should be resolved with finality by the appointment of a guardian ad litem for Mr. Mumma, II's minor children with specific power to litigate on their behalf the question of the validity of the revocation. WHEREFORE, Mrs. Mumma and Mrs. Morgan request that the Court amend its order of February 23,2000 and appoint a guardian ad litem for Mr. Mumma, II's minor children. Alternatively, Mrs. Mumma and Mrs. Morgan request that this Court enter an order, pursuant to Pennsylvania Rule of Appellate Procedure 342, that the February 23, 2000 Order "shall 5 constitute a final order upon a determination of finality by [this Court)" to permit an appeal and a final adjudication ofthis issue. ~ ~ Ivo V. Otto, III MARTS ON, DEARDORFF, WILLIAMS & OTTO 10 East High Street Carlisle, PA 17013 717.243.3341 JosephA. O'Connor, Jr. Brady L. Green MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, PA 19103-2921 215-963-5079 Attorneys for Barbara McK. Mumma Lisa M. Morgan 6 CERTIFICATE OF SERVICE I hereby certify that on this 28th day of July, 2003, a true and correct copy of the foregoing Amended and Restated Exceptions of Barbara McK. Mumma and Lisa M. Morgan to Adiudication of February 23. 2000, was served upon the party named below by depositing same in the United States Mail, First Class, postage prepaid, and addressed as follows: James J. West, Esquire WEST LONG, LLC 105 North Front Street Suite 205 Harrisburg, PA 17101 L~k~~~~J Corrine L. Myers Paralegal 7 \ \ . , IN RE ESTATE OF ROBERT M. MUMMA, : IN THE COURT OF COMMON : PLEAS OF CUMBERLAND : COUN.TY, PENNSYLVANIA : ORPHANS' COURT DIVISION Deceased. : NO. 21-86-398 IN RE: PETITION OF ROBERT M. MUMMA" FOR ACCOUNTIN~ Before HOFFER.P.J. ,,,~:~~ \~\~~ ORDER OF COURT AND NOW.(:c1r 1- ~. 2000, upon consideration of the briefs submitted by both parties, the facts of record, and the applicable law, Petitioner Robert M. Mumma II's petition for an accounting of the Estate and Trusts of Robert M. Mumma. Sr, is hereby granted. An accounting shall be filed within ninety days of this order. The motion of Respondents Barbara McK. Mumma and Lisa M. Morgan for the appointment of a guardian ad litem for the minor children of petitioner is denied. By the Court, A TRUE COpy FROM RECORD In Testimony wherot, I hereunto set my hand and the seal of said Court at Carlisle, PA This ~ 3.J_day of 2000 ~. - ~ .L. Clerk of the rnhans COllrl P.J. , . "!f~;\." !,",,'.,d.. \~\'~';,~. Robert M. Mumma II, Petitioner BoxE Bowmansdale, PA 17008 6880 S.E. Harbor Circle Stuart, FL 34996 Pro se Ivo V. Otto III 10 East High Street Carlisle, PA 17013 Attorney for Respondents Joseph A. O'Connor, Jr. Morgan, Lewis & Bockius LLP 1701 Market Street Philadelphia, PA 19103-2921 Attomeys for Respondents IN RE ESTATE OF ROBERT M. MUMMA, : IN THE COURT OF COMMON : PLEAS OF CUMBERLAND : COU~TY, PENNSYLVANIA : ORPHANS' COURT DIVISION Deceased. : NO. 21-86-398 IN RE: PETITION OF ROBERT M. MUMMA II FOR ACCOUNTING Before HOFFER. P.J. OPINION 1'~'~~~ 1l"''''W t\:I~\I' In this opinion, we address Robert M. Mumma II's request for an accounting. On January 6, 1999, Robert M. Mumma II (hereinafter .petitioner") petitioned this court for an accounting of the estate of his father, Robert M. Mumma Sr. (hereinafter "deceden!"), who died testate on April 12, 1986. (Respondents' Brief at 1). The decedent's will and the codicil thereto were probated on June 5, 1986. (Respondents' Brief at 1). The will appoints Mrs. Barbara McK. Mumma, decedent's widow, and Lisa M. Morgan (hereinafter "respondentsn) as executrices thereof and as trustees of a Marital Trust and a Residuary Trust created thereunder ("the Trustsn). (Respondents' Brief at 1). Under the will, the presumptive remaindermen of the Trusts, if they survive Mrs. Mumma, are the decedent's children: petitioner Robert M. Mumma II, Linda M. Mumma, Barbara M. Mumma and Mrs. Morgan. (Respondents' Brief at 1). The decedent bequeathed to his testamentary trustees an amount equal to fifty percent of his total gross estate to be held in trust exclusively for the benefit of his wife during her lifetime, the principal to be distributed to the decedent's children upon her death. (The will, Article 7). In addition, the decedent gave his residuary estate to his testamentary trustees to be held in trust exclusively for the benefit of his wife during her lifetime, the principal to be paid to the decedent's children upon her death. (The will, Article 8). The respondents filed interim accounts of their acts and transactions -(Ir~ as executrices and as trustees on August 9, 1991. (Respondents' Brief at 4). There have been no further accountings since that time. Petitioner disclaimed his interest under the will in 1987. (Respondents' Brief, Ex. A). In 1989, this court granted petitioner's motion to revoke his disclaimer. (Respondents' Brief, Ex. D). Mr. Frey, who was appointed guardian ad litem for the minor persons interested in the Estate in 1988, appealed the revocation of the disclaimer. (Respondents' Brief, Ex. E). The Superior Court ruled that Mr. Frey's representation of the estate with respect to the revocation of the disclaimer was beyond the scope of his limited appointment and therefore he lacked standing to appeal. In re Estate of Robert M. Mumma, Mem. Op., at 2 (Pa.Super. July 18, 1994). l:',~":O;:" ","":,:',r;,:) \ti~~ Petitioner now asks for a complete accounting of the Estate, including an accounting of the Trusts in whjch petitioner claims an interest. The respondents claim they cannot provide an accounting to petitioner because he does not have standing, and the issue of the revocation of petitioner's disclaimer has not been fully litigated. Further, respondents ask this court to appoint a guardian ad litem for petitioner's minor children. We will address the claims of both parties in tum. Discussion Petitioner seeks a final accounting of the decedent's Estate pursuant to section 3501.1 of the Decedents, Estates, and Fiduciaries Code.' Respondents do not dispute that they must account to those interested in the Estate and Trusts. (Respondents' Brief at 5). However, respondents assert that petitioner does not have an interest in the Estate or Trusts giving him standing to request an accounting. Respondents question whether petitioner's disclaimer has been properly revoked. In their brief, respondents state, "if the disclaimer is still valid, Mr. Mumma II, has absolutely no interest in the Estate or the Trusts and would be an improper party to any accounting proceeding." Respondents' Brief at 6. I Six months from the first complete advertisement of the original grant of letters, the personal '~"r.o~ntotiv.. mov he cited to file the account bv any Dartv in interest. 20 Pa,C.S.A ~ 3501.1. Respondents contend that since the issue of the revocation of petitioner's disclaimer has not been fully appealed, petitioner has no interest in the Estate. We disagree. This court revoked petitioner's disclaimer in 1989. Although Robert Frey, limited guardian of the minor children of the Estate, appealed the decision, the Superior Court ruled that Mr. Frey did not have standing to appeal the issue and that such an appeal exceeded the scope of his representation. In re Estate of Robert M. Mumma, Mem. Op., at 2 (Pa.Super. July 18, 1994). r;~;;i'0i:~~~ IJ"",~\,\,\\" \\"-~'i.w' Respondents' challenge to the validity of petitioner's disclaimer is a collateral attack on the prior judgment of this court revoking the disclaimer. It is a rule of law of general application that a judgment properly entered is not subject to collateral attack. See Mangold v. Neuman, 371 Pa. 496, 500, 91 A.2d 904, 906, (1952). Therefore, respondents may not collaterally attack the prior judgment revoking petitioner's disclaimer. Until adjudicated otherwise, our decision revoking petitioner's disclaimer restores his interest in the Estate. As it has been determined that petitioner is a party in interest, he may petition the court to require the trustee to file an account of the management of the trust estate. See Rock v. Pyle, - Pa.Super. --, 720 A.2d 137, 142 (1998), In re Wheeler's Estate, 287 Pa. 416,135 A. 252 (1926). The Decedents, Estates and Fiduciaries Code provides that a court may order a trustee to file an account upon the petition of a beneficiary of the trust. 20 Pa.C.S.A. S 71~1. Although the respondents filed an interim accounting in August of 1991, no evidence of additional accountings has been presented. Respondents, as fiduciaries entrusted with the administration of an estate, have a duty to exercise the utmost fairness in dealing with beneficiaries. See Estate of Bosico, 488 Pa. 274, 278, 412 A.2d 505, 507 (1980). Respondents are therefore direded to file an accounting of the Estate and Trusts. Respondents raise the second issue of whether the court should .'JapPoint a guardian for the minor children of petitioner. Respondents request that the court appoint a guardian for petitioner's minor children in order to satisfy their possible interests in the event that petitioner's disclaimer is revoked. Rule 12.4 of the Pennsylvania Orphans' Court Rules states: (a) On petition of the accountant or any party in interest, or upon its own motion, the court may appoint (1) a guardian ad litem to represent a minor or an incompetent not represented by a guardian or (2) a trustee ad litem to represent an absentee, a presumed decedent, or unbom or unascertained persons not already represented by a fiduciary, unless the court considers that the interests of such persons are adequately represented. Pa.O.C.R. 12.4. As petitioner's children currently do not have any interest under the Trusts, there is no reason to appoint a guardian for the minor children of petitioner. Further, respondents have failed to show that the children's interests are not adequately represented. Therefore, respondents' motion for the appointment of.a guardian for petitioner's children is denied. '1;1~"o~. r.:"",~ ""'^.""_' ~~V:'~}~ I I IN RE: ESTATE OF ROBERT M. MUMMA, Deceased _, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA ORPHANS' COURT DIVISION NO. 21-86-398 ~CEPTIONS TO ADJUDICATION TO THE HONORABLE, THE JUDGES OF THE SAID COURT: AND NOW, this '3~ day of March, 2000, pUl'SUlU1t to Pa. O. C. Rule 7.1 and c.c.a.c. Rules 7.1-1 and 7.1-2, the&ccptants, BarbaraMcK. Mumma ("Mrs. Mumma") and LisaM. Morgan ("Mrs. Morgan''). as executrices of the Estate and trustees under the will of Robert M. Mumma, deceased ("Mr. Mmnma, Sr."), except as follows to the adjudication in the Order and Opinion of this Court, George E. Hoffer, P.I., dated Fe~ 23, 2000: 1. The Honorable Judge erred in denying Mrs. Mumma and Mrs. Morgan's petition for the appointment of a guardian ad [item for Robert M. Mumma, n (''Mr. Mumma, ll'')'s children, all of whom are minors. 2. There is no disp!1te, and President Judge Sheely previously ruled, that Mr. Mumma, n filed a disclaimer of his interests under Mr. Mumma, Sr. 's will in favor of his minor children. 3. In order to be effective for federal tax purposes, that disclaimer was required to be irrevocable. 4. Nonetheless, Mr. Mumma, n sought, and President Judge Sheely granted, permission to revoke his disclaimer. 5. Mr. Mumma, n's request to revoke his disclaimer was contested only by Robert M. Frey, Esquire, purporting to act as guardian ad litem for Mr. Mumma, n's minor children. 6. The Superior Court held that Mr. Frey lacked standing to litigate the issue of the validity ofthe reyocatiQn of the disclaimer. 7. As a consequence, the issue of the validity of the revocation has never been litigated on behalf of Mr. Mumma, n's minor children by anyone having standing to do so. 8. The issue whether Mr. Mumma, n effectively revoked his disclaimer bears directly, and dispositively, upon the identitY of those persons to whom Mrs. Mumma and Mrs. Morgan must account and who are beneficiaries under the will of Mr. Mumma, Sr. 9. Mrs. Mumma and Mrs. Morgan believe that they have a fiduciary duty to make sure that the issue of the validity of the revocation, due to its centrality to the proper administration of RobertM. Mumma's estate and the trusts established under his will, has been fully litigated by persons having standing to do so. 10. There is no alternative means by which the minor children's arguments can be heard and their rights protected, or by which the proper beneficiaries might be identified. 11. Mrs. Mumma and Mrs. Morgan do not except to the portion of the February 23, 2000 opinion and order directing them to file accountings, except to the extent that they are ordered to account to Mr. Mumma, n prior to a final detennination of his entitlement to receive an accounting and his status as a beneficiary under his futher's will. Respectfully submitted, MARTSON DEARDORFF WILLIAMS & OTTO BYI~.~ 1.0. No. 27763 Mark A. Denlinger, Esquire 1.0. No. 83794 Ten East High Street Carlisle, PA 17013-3093 (717) 243-3341 Date: March S ,20pO Attorneys for Exceptants CERTIF~CATE OF SERVICE I, Jacqueline A. Decker, an authorized agent of Marls on Deardorff Williams & Otto, hereby certify that a copy of the foregoing Exceptions to Adjudication was served this date by depositing same in the Post Office at Carlisle, P A, first class mail, postage prepaid, addressed as follows: Mr. Robert M. Mumma n BoxE Bowmansdale, P A 17008 MARTSONDEARDORFF wrrLIAMS & OTTO ~/.,.t'20AJ line A. Decker T High Street Carlisle, PA 17013 (717) 243-3341 Dated: March...j , 2000 I . ' IN RE:ESTATE OF ROBERT M. MUMMA, Deceased IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ORPHAN'S COURT DNlSlON NO. 21-86-398 ANSWER OF PETITIONER, ROBERT M. MUMMA. n. TO EXCEPTIONS TO ADJUDICATION AND NOW, comes Petitioner Robert M. Mumm~ Jr, appearing Dro J!ll, and files the within Answer To Exceptions To Adjudication, the nature of which is as follows: I. DENIED. As the Court's Adjudication (Order of February 23, 2000, at 5-6) clearly enunciates, Petitioner Mumma's minor children have no interest under the trusts and Exceptants have failed to demonstrate that the children's interests are not adequately represented. In fact, by Order of Court, dated October 14, 1991, York County Judge John Miller appointed RobertM. Mumma, II and Gary M.Gilbert as guardians of both the Estate of Susan Mann Mumma and the Estate of Marguerite Mann Mumma (see Order appended to this Answer). 2. DENIED as stated. Judge Sheely's ruling did not state that Robert M. Mumma, II filed a disclaimer of his interests under the will. Judge Sheely's Opinion stated as follows: Robert M. Mumma, II (Petitioner), one of Testator' s four children, executed a disclaimer dated January 6, 1987, which was filed in the office of the Register of Wills on January 12,1987. (Opinion and Order of Court, November 17, 1989, at I) (emphasis added) . ' The language of the Court indicates that a disclaimer was executed and that it was later filed. It does not state that Petitioner Mumma filed it. Indeed, Petitioner Mumma's letter to Judge Sheely of January 3, 1989 stated, inter alii!, "I have no knowledge of ever filing or instructing to be filed in Cumberland County Court a renunciation of my interest in the estate. If such a document was filed at the Court House, it was done against my wishes." This is an important point because Petitioner Mumma specifically instructed his attorney, Arthur Kline, not to file the disclaimer. The filing was, consequently, without authority and fraudulent. 3. DENIED. The allegation at paragraph 3 of the Exceptions represents a conclusion -,!f law which does not require an answer under the Pennsylvania Rules of Civil Procedure. Requirements for tax purposes are completely irrelevant to the present inquiry or issue to be litigated. 4. DENIED as stated. The Motion To Revoke Disclaimer was granted pursuant to an Order of Court, dated November 17,1989. 5. DENIED. As Judge Sheely's Opinion clearly indicated, the Rule To Show Cause involving the Petition to Revoke was answered by Executrices I Trustees; by Robert Frey; and by Linda Roth. Robert Frey acted as a guardian ad litem of the minor children of Petitioner Mumma 6. ADMI1TED. By way of further answer, the decision of the Superior Court speaks for itself. 7. ADMITTED. By way of further answer, under applicable law. Judge Sheely's Order became final and unappealable when no one with proper - 2- standing filed a Notice of Appeal within thirty (30) days of the entry of the Order and the Superior Court dismissed the appeal of Robert Frey - the only individual to file a Notice of Appeal. 8. DENIED. The issue as to whether Petitioner Mumma effectively revoked his disclaimer has been finally resolved by the Order of Court, dated November 17, 1989, which was not successfully appealed by anyone with standing to do so. It is res iudicata and represents the law of the case. The identity of those persons to whom Mrs. Mumma and Mrs. Morgan must account is clear and unequivocal and includes Petitioner Mumma. 9. DENIED. Mrs. Mumma and Mrs. Morgan have a fiduciary duty to finally account to the beneficiaries of the estate, which they have successfully avoided for a period of fourteen (14) years. By failing to do so, they have violated their fiduciary duty. 10. DENIED. As the Court correctly pointed out, there is no interest of the Mumma minor children which either requires protection or is not being adequately represented. Exceptants' redundant arguments represent nothing more than a collateral attack upon a final judgment of this Court which is now the law of the case. 11. DENIED. The averments at paragraph 11 of the Exceptions contain nothing more than a statement of the Exceptants' intention in filing their Exceptions. Their statement, that they should not have to account to Petitioner Mumma "prior to a final determination oChis entitlement to receive an accounting and his status as a beneficiary", is without any basis in law. Unless a stay or .3- injunction pending appeal is issued they are required to comply with the Court's Order of February 23, 2000. Moreover, there has been a final determination in this matter. NEW MATIER 12. On or about March 24, 2000, Exceptants filed a Notice of Appeal to the Pennsylvania Superior Court. 13. This appeal was improvident while their Exceptions were pending and may have divested this Court of jurisdiction. over the issue appealed from. 14. The disclaimer which Exceptants raise as an excuse not to comply . with the Court's Order was not filed by Petitioner Mumma, and its filing represented a fraud upon him. 15. As a result of this fraudulent undertaking, the disclaimer was either properly revoked or was void ab initio from the outset. WHEREFORE, it is requested that the Court dismiss the Exceptions filed to the Adjudication and enter a Final Order or Decree, requiring Exceptants to account to Robert M. Mumma, 11. Respectfully submitted, _~.1J1J 4M-1McJ- Robert M. Mumma, II appearing pro se BoxE Bowmansdale, P A 17008 (717) 766-1598 Dated: April 14, 2000 -4- IN RE: ESTATE OF ROBERT M. MUMMA, Deceased IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ORPHAN'S COURT DIVISION NO. 21-86-398 PROOF OF SERVICE The undersigned hereby states that she has served a copy of the foregoing, "Answer Of Petitioner, Robert M. Mumma, II, To Exceptions To Adjudication" on the following named individual in the matter indicated: Dated: April 17, 2000 First - Class Mail. Postal!e PreDaid Ivo V. Otto, III, Esquire Martson, Deardorf, Williams & Otto Ten East High Street Carlisle, P A 17013 lllfiJk; P:lFlLES\DA TAFlLE\GenddLcw\SB44-Iep{y. t Created: OYO&fOO 01:4B~44 AM Raviaed: O.YD8fOOOll:ll:01AM IN RE: ESTATE OF ROBERT M. MUMMA, . - Deceased IN TIlE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA ORPHANS' COURT DIVISION NO. 21-86-398 EXCEPTANTS REPLY TO NEW MATTER AND NOW, this 8th day of May, 2000, the Exceptants, Barbara McKimmie Mununa and Lisa M. Morgan, Executrices of the Estate of Robert M. Mumma, file this Reply to the Answer and New Matter of Petitioner, Robert M. Mununa, II, to Exceptions.to Adjudication, and state the following: 12. Admitted. 13. The averments of paragraph 13 are conclusions of law to which no response is required. If a response is deemed to be required, said averments are denied and strict proof thereof is demanded. 14. The averments of paragraph 14 are conclusions of law to which no response is required. If a response is deemed to be required, said averments are denied and strict proof thereof is demanded. 15. The averments of paragraph 15 are conclusions of law to which no response is required. If a response is deemed to be required, said averments are denied and strict proof thereof is demanded. Respectfully submitted, MARTSON DEARDORFF WnUAMS & OTTO r- ":'t '" C>- cO t ~ ,.;:: .~~ Zl\ '.: ..0 ~~ 50 By4~1J2-4J ~ 1 . No. 27763 Mark A Denlinger, Esquire J.D. No. 83794 Ten East High Street Carlisle, PA 17013-3093 (717) 243-3341 - o'"~ c::::. ~: :~., .- <:: ~ (1.. 'U' Cii '." v1j) ~.~ ~rr. ~ . . Additional counsel: Joseph A O'Connor, Jr., Esquire Marc I. Sonnenfeld, Esquire Brady L. Green, Esquire MORGAN, LEWIS & BOCKlUS LLP 1701 Market Street Philadelphia, PA 19103-2921 (215) 963-5212, 5572, 5079 Attorneys for Exceptanls Date: May 8, 2000 . . CERTIFICATE OF SERVICE I, Jacqueline A Decker, an authorized agent of Marts on Deardorff Williams & Otto, hereby certify that a copy of the foregoing Reply to New Matter was served this date by depositing same in the Post Office at Carlisle, P A, first class mail, postage prepaid, addressed as follows: Mr. Robert M. Mumma II BoxE BowmansdaIe, P A 17008 Mr. Robert M. Mumma II 6880 S.B. Harbor Circle Stuart, FL 34996 MARTSON DEARDORFF WILLIAMS & OTTO By~~,.JjJ.'b~ cq e A Decker Ten ast High Street Carlisle, PA 17013 (717) 243-3341 Dated: May 8, 2000 ,......"T................ 1Yu';WU PAGE 02/06 . . J. A42011/00 IN RE: ESTATE OF ROBERT M. MUMMA, DECEASED APPEAL OF: LISA M. MORGAN AND BARBARA McK. MUMMA IN THE SUPERIOR COURT OF PENNSYLVANIA No. 770 MDA 2000 Appeal from the Order Entered February 23, 2000, In the Court of Common Pleas of Cumberland County, Orphan's Court Division at No. 21-86-398. BEFORE: POPOVICH, FORD ElliOTT and BROSKY, JJ. MEMORANDUM: F I L'S '0 JAN 3 2001 This appeal arises from the February 23, 2000 Order of the Court of Common Pleas, Cumberland County, which granted Robert M. Mumma, Irs petition for accounting of the Estate and Trusts of Robert M. Mumma, Sr. and denied Barbara McK. Mumma's and Lisa M. Morgan's motion for the appointment of a guardian ad litem for the minor beneficiaries. For the following reasons, we quash the appeal. Robert M. Mumma, Sr. ("decedent") died testate on April 12, 1986. His will and subsequent codicil were probated on June 5, 1986. The will appointed Barbara McK. Mumma, decedent's widow, and Lisa M. Morgan, decedent's'daughter, (collectively "Appellants") as Executrices of the estate and as trustees of a Marital Trust and a Residuary Trust. The will named the -~". ~~ ' .....~. ']'ecedent's children, Robert M. Mumma, II' (\\APP~lIee"), Linda M. Mumma,', Barba'ra M. Mumma and Lisa M. Morgan, as the presumptive remaindermen of the Trusts if they survive Barbara McK. Mumma. -- .... '. r--t4l.:1t:,. I::l.j{lab . . j. A42011/00 On January 6, 1987, Appellee executed a disclaimer of his interest under the will. On January 12, 1987, the disclaimer was filed in the Office of the Register of Wills. Appellants then sought apPointment of a guardian ad litem to represent the minor beneficiaries, Appellee's minor children, who became presumptive remaindermen via his disclaimer. SUbsequently, the trial court appointed a guardian ad litem with authorization to represent Appellee's minor children in all matters relating to the sale of decedent's businesses and any proceedings relating ther'E!to. On June 20, 1989, Appellee petitioned the trial court to revoke his disclaimer.' On November 17, 1989, the trial court granted Appellee's petition, and on March 21, 1991, the trial court entered a decree nisi directing that Appelle.e be permitted to revoke his disclaimer. The guardian filed exceptions on April 2, 1991, which the trial court denied. The guardian appealed. We dismissed the guardian's appeal finding that he lacked standing to. appeal the trial court's decision permitting Appellee to revoke his disclaimer in that the guardian ad litem was not the proper party to represent the minor children In opposing their father. See In re Estate of Robert M. Mumma, Deceased, 561 HBG 1993, 7/18/94 (UnpUblished Memorandum). _-:--= :-:-9n December 24~_ 1998, Appellee. petition~~ for an immediate, final .7 accounting for the Estate. On January 12, 1999, the trial court orderecf' Appellants to show cause why an accounting should not be ordered. On - 2 - . . j, A42011/00 February 26, 1999, Appellants filed an answer and new matter. Appeliee . , filed his answer, and then Appellants filed corresponding memorandums: of law. On February 23, 2000, the trial court issued an order and opinion granting Appellee's petitIon for a final accounting and denying Appellar;,ts' ; motion for appointment of a guardian ad litem for Appellee's minor childl-en I to' oppose their father. The court also directed Appellants to file acco~nts with the court within ninety days. - ,- i On March 24, 2000, Appellants filed notice of appeal to this Court.1 I I I I I i I Appellants present the following issues on appeal: 1. Whether Appellants can fulfill their fiduciary duties without a determination of the persons Interested under the will to whom they must account. 2. Whether a guardian ad litem must be appoInted because the rights and interests of minor beneficiaries under the will may be impacted by Appellee's revocation of his disclaimer. . Appellants' Brief, at 9 & 13. We have exclusive appellate jurisdiction of all appeals from final orders of the courts of common pleas. See 42 Pa.C.S.A. ~ 742. In a decedent's estate, the confirmation of the final account of the personat representative represents the final order subject to exceptions being filed and disposed of _-=.:;:.. ~'1 """ 1 On March 3, 2000, Appellants filed exceptions to the February 23rd order and opinion. At the time of the filing of the appeal, the trial court had not ruled on the exceptions. . - 3 - .. . .~-- "WoJt ("IU 'J. A42011/00 by the court. See 20 Pa.C.S.A. ~ 3514. However, in the present case, Appellants do not appeal from an order that confirms the final account. Additionally, an order is not final unless. it disposes of all claims and of all parties. See Pa.R.A.P. 341(b)(1). It is well-settled that orders that are not final are generally not appealable. See In re Manley, 451 A.2d 557, 559 (pa. Super. 1982). Here the order is interlocutory because the estate has not had a final accounting, and further litigation is contemplated, as evidenced by Appellants' filing of exceptions. The :i=ebruary 23rd order granted Appellant's petition for a final accounting and denied Appellants' motion for an appointment of a guardian ad litem. This order was not final because it did not dispose of all claims and of all parties. Pa.R.A,P. 342 provides for the appeal of an interlocutory order of distribution In a decedent's estate as follows: An appeal may be taken as of right from any order of distribution entered in an orphan's court division which is not final within the meaning of Rule 341 (final orders generally) if the lower court shall certify that the order is sufficiently definite to determine the substantial issues between the parties. On this appeal, we lack (a) an order of distribution arid (b) a trial court certification. Cf. In re Estate of Habazln, 679 A.2d 1293, 1295 CPa. Super. 1996) (quashed appeal pursuant to Rule 342 because order fixing 3I?prai~al value of reaLproperty was .not an orqer of distribution and not .,.: ~ - - 4- . ............. UOfOO " .' J. A42011/00 certified by trial court). Therefore, we find that the within appeal is interlocutory, taken without right, and must be quashed. Appeal quashed. Date' JAN - 3 ZODl ,. - 5-