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HomeMy WebLinkAbout08-22-03 IN RE: ESTATE OF ROBERT M. MUMMA, DECEASED IN THE COURT OF COMMON PLEAS ORPHANS' COURT DMSION CUMBERLAND COUNTY, PENNSYLVANIA NO. 21-1986-0398 RULE WE COMMAND, you that laying aside all business and excuses whatsoever, you be and appear in your proper person before the Honorable Judges of the Court of Common Pleas, Orphans' Court Division at a session of the said Court there to be held, for the County of Cumberland to show cause why the relief requested should not be 2fanted. Returnable 30 days from service. Witness my hand an official seal of office at Carlisle, Pennsylvania, this 26 day of August. 20m. ~"-JU let))l. ~~~IJ h~ \wI Clerk, Orphans' Court Division ~} Cumberland County, Carlisle, P A 111/). ' uJ My Commission Expires on the 1 st Monday . ~.' January, 2006 1 I-\UG \ ~03 AUG {s"iom C/ IN RE: ESTATE OF ROBERT M. MUMMA, DECEASED : COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : No. 21-86-0398 : ORPHAN'S COURT DIVISION , 2003, upon due consideration of the within Notice of Untimeliness of Exceptions it is hereby ORDERED, ADJUDGED and DECREED tL_t.o.1........ n......i ~t'L tv CUUI;;UU (1lJU H..~l.U~v '"'~"""_rt_u~:~ BQTltiP L r ..t::.U.L,Jy ",Lud, :L"::; ~_tl:~. ~~:~: 1l.~t~A~~Ptluuo 7i;t PPh~T J7;: ~-& ~.u U<~ '~- v"e (\'t,~ ~14. ~ . ~ ~ fv.~ >tN'VtG;- (7.7. e. p.J 4 c.' '~'> 7"' en C> .;:"CJ <-.C. West Long LLC 105 North Front Street Suite 205 Harrisburg, PA 17101 (717) 233-5051 IN RE: ESTATE OF ROBERT M. MUMMA, DECEASED : COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : No. 21-86-0398 : ORPHAN'S COURT DIVISION NOTICE OF UNTIMELINESS OF EXCEPTIONS AND NOW, comes Robert M. Mumma, II, by and through his counsel, James J. West, Esquire, and files the following Notice ofUntimliness of Exceptions and, in support thereof, alleges as follows: 1. The Executrixes in the above-captioned case have filed a document entitled "Amended and Restated Exceptions of Barbara McK Mumma and Lisa M. Morgan to Adjudication of February 23, 2000." 2. Under Orphan's Court Rule 7.1, exceptions must be filed not later than twenty (20) days after entry of an Order, Decree and Adjudication. 3. The order at issue in this case was entered on February 23,2000. 4. The attempt to amend and restate exceptions is untimely under Rule 7.1 of the Orphan's Court Rules. 5. The Court was correct in its ruling of February 23, 2000 in denying the Motion of Respondents Barbara McK Mumma and Lisa M. Morgan for the appointment of a guardian ad litem to the minor children of Petitioner. The challenge to the validity of the disclaimer is a collateral attack on Judge Sheeley's earlier Order and there is no reason to appoint a guardian at this time. In fact, York County Court of Common Pleas has appointed Robert M. Mumma, II as guardian for his children. (A copy of the Court's Opinion is attached hereto as Exhibit A.) WHEREFORE, the attempt to amend and restate exceptions should be stricken and the exceptions filed to the February 23, 2000 Order of this Court should be denied. Respectfully Submitted, e J. A. ey . 0331 105 North Front Street Suite 205 Harrisburg, PA 17101 (717) 233-5051 (717) 234-7517 - fax Dated: August 18, 2003 Counsel for Robert M. Mumma, II CERTIFICATE OF SERVICE I hereby certify that on this 18'h day of August, 2003, a true and correct copy of the foregoing document was served upon the parties named below by depositing same in the United States Mail, First Class postage prepaid, and addressed as follows: lvo V. Otto, III, Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, P A 1701 3 and Joseph A. O'Connor, Jr., Esquire Brady 1. Green, Esquire Morgan, Lewis & Bockius, LLP 1701 Market Street Philadelphia, PA 19103-2921 ~? IJ{)/Y/f / li >LY 4/ .a-'R>L e M. Bennett Paralegal 1 . . i~~~ ,'~ ,."",::,:1 ~\W IN RE ESTATE OF ROBERT M. MUMMA, : IN THE COURT OF COMMON : PLEAS OF CUMBERLAND : COUNTY, PENNSYLVANIA : ORPHANS' COURT DIVISION Deceased. : NO. 21-86-398 IN RE: PETITION OF ROBERT M. MUMMA II FOR ACCOUNTING Before HOFFER. P.J. ORDER OF COURT AND NOW.~ '2- ~ , 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 wherol, I hereunto set my hand and the seal of said Court at Carlisle, P A This ,;;3",1 day of f: 2000 D;...." P.J. ,..,h"nc: r,-.. ,.-1 ~. ,....... ,_':.~\n".;:,,) ~:s.. Robert M. Mumma II, Petitioner SoxE Sowmansdale, PA 17008 6880 S.E. Harbor Circle Stuart, FL 34996 Pro se "~'~"". ,~,."".' "'~'r;;' Ivo V. Otto ill 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 Attorneys for Respondents ,,~ ....,';~.\~;l 't:.~;:. IN RE ESTATE OF ROBERT M. MUMMA, : IN THE COURT OF COMMON : PLEAS OF CUMBERLAND. : COU~TY, PENNSYLVANIA : ORPHANS' COURT DIVISION : NO. 21-86-398 Deceased. IN RE: PETITION OF ROBERT M. MUMMA II FOR ACCOUNTING Before HOFFER, P.J. OPINION ..ii\'}.\L... ...:i~.~:l '~~ 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 "decedent"), 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, decedenfs widow, and Lisa M. Morgan (hereinafter "respondents") as executrices thereof and as trustees of a Marital Trust and a Residuary Trust created thereunder ("the Trusts"). (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 c~,~. .<;I~'I\~:r~:;'Y ~.\:.)' ~~'::P' 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 '(1Ii 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. Gp., at 2 (Pa.Super. July 18, 1994). .l~t;I$j tp'"~ 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 ~~j;~ ~~ Petitioner seeks a final accounting of the decedenfs 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 ofletters, the personal ~~""'-"'C"'<>r'lt.....~""" ...,-." hp ritPri to file the account bv any Darty 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 Reibert M. Mumma, Mem. Op., at 2 (Pa.Super. July 18, 1994). (.~~:'~-~\l.-'. ~\';o\*\""l","\ ~~;" 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 beendetermined 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 ~p[~ court may order a trustee to file an account upon the petition of a beneficiary of the trust. 20 Pa.C.S.A. ~ 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 faimess in dealing with beneficiaries. See Estate of Bosico, 488 Pa. 274, 278, 412 A2d 505, 507 (1980). Respondents are therefore directed to file an accounting of the Estate and Trusts. Respondents raise the second issue of whether the court should ."1"'" . """,' , ~' appoint 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 ofthe 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 ~}t~~~t children's interests are not adequately represented. Therefore, respondents' motion for the appointment of_a guardian for petitioner's children is denied. -1'i1"r"'t,l'~~ 'i;.,~.~t':'t';~_, \1fMt\'