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HomeMy WebLinkAbout11-25-03 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA IN RE ESTATE OF ROBERT M. MUMMA I I ORPHAN'S COURT DMSION Deceased. NO. 21-86-398 MOTION TO STAY EXCEPTIONS AND TO COMPEJ. FINAL ACCOUNTING AND NOW, comes Robert M. Mumma II, by and through his counsel, MILLER upsm LLC, and files this Motion to Stay Exceptions and to Compel Final Accounting and, in support thereof, states: 1. On February 23, 2000, an order was entered in the above-capti,oned matter directing the Executrixes and Trustees, Barbara McK. Mumma and Lisa M.. Morgan, of the Estate and Trusts of Robert M. Mumma to file a final accounting within 90 days of said order. 2. On March 3, 2000, the Executrixes and Trustees, Barbara McK. Mumma and Lisa M. Morgan, of the Estate and Trusts of Robert M. Mumma filed exceptions to the aforementioned February 23, 2000 Order. 3. On March 24, 2000, the Executrixes and Trustees, Barbara McK. Mumma and Lisa M. Morgan, of the Estate and Trusts of Robert M. Mumma filed a notice of ... . . ," . L" '. ~ .::",-, .."..". " appeal with the Superior Court seeking to over turn the aforementioned February 23, 2000 Order directing them to file a final accounting-more specifically, to grant their exceptions. 4. On January 3, 2001, the Superior Court quashed the appeal of the Executrixes and Trustees, Barbara McK. Mumma and Lisa M. Morgan, of the Estate and Trusts of Robert M. Mumma ruling that their exceptions and appeal were prematurely filed: "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." A true and correct copy of the Superior Court's Opinion is attached hereto as Exhibit 1/ A" . 5. As evidenced by the Superior Court's Opinion, the exceptions filed by the Executrixes and Trustees, Barbara McK. Mumma and Lisa M. Morgan, of the Estate and Trusts of Robert M. Mumma, are premature and, therefore, should be stayed until they file a final accounting. 6. Despite the Superior Court's quashing of their appeal almost three (3) years ago, the Executrixes and Trustees, Barbara McK. Mumma and Lisa M. Morgan, of the Estate of Robert M. Mumma have steadfastly refused to comply with the aforementioned Order of February 23, 2000 directing them to file a final accounting. WHEREFORE, Robert M. Mumma II respectfully requests that this Honorable Court stay the exceptions of the Executrixes and Trustees, Barbara McK. Mumma and Lisa M. Morgan, of the Estate Robert M. Mumma until they file a final accounting, and 2 further, direct them to file a final accounting within 45 days or suffer sanctions in the amount of $1,000.00 for each day that the final accounting is late. Respectfully submitted, Dated '1~/? Attorney I.D. No.: 83755 Bradley A. Schutjer Attorney I.D. No.: 75954 2157 Market Street Camp Hill, P A 17011 (717) 737-6400 3 Exh.ibit II A" r~ EJ:<:/tJ6 J. A42.011/00 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 MOA 2000 Appeal from the Order Entered February 23,2000, In the Court of Common PI_s of Cumbertand County, Orphan's Court Division at No. 21-86-398. BEFORE: POPOVICH, FORD ElUO"- and BROSKY, JJ. . MEMORANDUM: . ,. . PILEiDJAN 3200f This appeal arises from the February 23, 2000 Order of th~Court of Common Pleas, Cumberland County, which granted Robert M. Mumma, II's petition for accounting' of the Estate and Trusts of Robert M. Mumma, Sr. " and denied Barbara McK. Mumma's and Usa M. Morgan's motfCi)n for the appointment of a guardian ad Htem for the minor beneflclarles~ For the following reasons, we quash the appeal. -- Robert M. Mumma, Sr. ("decedent"') died testate 'on April 1.12, 1986. His will and subsequent codicil were probated on .June 5, 1986. The will appointed Barbara McK. Mumma, decedent's widow, and Usa M. Morgan, decedent's. daughter, (collectively "'Appellants"'} as Executrices of the estate and as trustees-of s. Marital Trust and a Residuary Trust. The will ritamedthe -~": :"':"'~ . ........ - '. ..... . ::;,- '1Iecedent's children, Robert M. Mumma, n ("APpelleej, Unda M. Mumma,". Barba"raM. Mumma and Usa M. Morgan, as the presumptlve remaindermen of the Trusts if they survive Barbara McK. Mumma. - -- -- .. . J. A42011/00 . . On January 6,. 1987, Appellee executed a disclaimer of his Interest under the wf/l. On January 12, 1987, the disclaimer was filed In the OffIce of the Register of Wills. Appellants then s~ught appol.ntment of a gLilardlan ad. 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 ~ appeal the trla.1 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 Te Estate of Robert Mil Mumma, Deceased, 561 HBG 199~. 7/18/94 (Unpublished Memorandum). ~=-," :,:,9n December 2~.t.. 1~98, AppeUee. petitton~ for an Immediate, final ". 4 ~- ." -' .. .:- :accounting for the Estate. On January 12, 1999, the trial court order&f" Appellants to show cause why an accounting should not be ord:ered. On -2- " J. M2011/eO .1 . February 26, 1999, Appellants filed an answer and new matter. Appel~ee , . . filed his answer, and then Appellants "led corresponding memorandums; of law. On February 23, 2000, the trial court issued an order and oPiri~on . granting Appellee's petition for a final accounting and denying Appella~ts' i . . motion for appointment of a guardian ad litem for Appellee's minor children I , . to. oppose their father. The court also directed Appellants to file acco4nts with the court wIthin ninety days. ,- On March 24/ 2000/ Appellants filed notice of appeal to thl~ Court.1 Appellants present the following Issues on appeal: 1. Whether Appellants can fulfill their fidudary duties without a determination of the persons Interested under the WiU to whom they must account. 2. Whether a guardian ad litem must be appointed because I' the rights and Interests of minor beneficiaries under the I will may be Impacted by Appellee's revocation 01 his i dIsclaimer. . Appellants' Brief, at 9 & 13. '. We have exduslve appellate jurisdiction of all appeals from flnal orders of the courts of common pleas. $ee 42 Pa.C.S.A. i 742. In a decedent's estate, the confirmation of the final account of. the personat repltesentative represents the final order subject to exceptions being filed and d,lsposed of _:;s::"" :;,t. . '-' . - .. ... . .. -',. ." -", - .... 1 On March 3, 2000, Appellants filed exceptions to the February 23rd order' and opinion. At the time of the flling of the appeal, the trial court had not ruled on the exceptions. " , ' - 3- J. A42011/00 by the court. See 20 Pa.C.S.A. ~ 3514. However, in the present case, Appellants do not appeal from an order that con.firms the final account. Additionally, an order is not flnal unless. It disposes of.all claims and of all I' . 'parties. See Pa.R.A.P. 341(b)(1). It is well-settled that orders that are not final are generally not appealable.. See In re Manley, 451 A.2di.557, S59 (pa. Super. 1982). Here the order is Interloe~tory because the ~ has not had a final accounting, and further litigation Is contemplated, as :evidenced by Appellants' filing of exceptions. The :Febl'\lary 23Td order granted. Appellant's petition for a final accounting and denied Appellants' motton for an appointment of a guardian ad litem. This order was not final because it did not dispose of all claims and of all parties" Pa.R.A.P. 342 provides for. the appeal of an Interlocutory order ,of distribution In a decedent's estate as foUows: An appeal may be taken a$ of right from any order of dlstribl.ttlon entered'n an orphan's court diviSion which is not flnaf within th.~, meaning ofR.ute 341 (final orders generally) If the lower ~urt shall certify that the order iSSufflclenti'{deftnIte to determine the substantial issues between the parties. . On this appeal; we lack (a) an order of distribution arid (b) a itrlal court certification. Cf, In re Estate of Habaz/n, 6?9 A.2d 1293, 1295 (Pa. Super. 1996) (quashed appeal pursuant to R.ule 342 because oltder fixing ~~al value of reaL.property was .not an order of dlstrlbutlotl and not Q- ?' .. . . lo ...:___~' -. . -4- J. A42011/00 . . ~ c"ertifled by trial court). Therefore, we find that the within. appeal is interlocutory, taken without right, and must be quashed. Appeal quashed. Date' JAN - 3 2001 - - .. -5- -_.-.__._._--..~... ::;~;;r." '.,.,'..:,';.7::".:'..~..',".'\;.'''''''~'::'''5'~_:~'.',','~~Xt\!.~j,~:;:...._;.'.,'.",'; ~~,:t:".; '-',,~''''':..,',',''' "', "'""<:'.'_. ,< , .. "'-' .,...............u_."......._.__. . . " . CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correctl copy of the , , , foregoing was served via first class United States mail, postage pre-paid upon the following: Ivo V. Otto, lIT, Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17013 Joseph A. O'Connor, Jr., Esquire Brady L. Green, Esquire Morgan, Lewis & Bockius, LLP 1701 Market Street Philadelphia, PA 19103-2921 Dated II Jc2ttJ03 , By 4 ~" - , . , '7 --,'.... cr).