HomeMy WebLinkAbout11-04-05
INRE: ESTATEOF
ROBERT M. MUMMA
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
ORPHANS' COURT DIVISION
NO. 21-86-398
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., November 4,2005.
In this Orphans' Court case dating back to 1986, in which objections to
accounts are presently subject to court-appointed auditor proceedings, a pro se
litigant, Robert M. Mumma, II,l has continued a practice2 of appealing frorb
interlocutory orders without securing the certification provided for under Section
702(b) of the Judicial Code. The present appeal is from an order of the
undersigned judge denying Mr. Mumma's second motion requesting that the court
recuse itself.3
The grounds for the appeal have been expressed in a statement of matters
complained of on appeal as follows:
1. The Trial Court Erred In Denying The Motion of.
Petitioner Robert M. Mumma, II, For Trial Judge To Recuse);)
Himself Due To Appearance of Impropriety.
2. The Trial Court Erred In Prohibiting Petitioner Robert
M. Mumma, II, From Appealing The Order Pursuant To
4
Pa.R.A.P. 313.
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1 Although the court is reluctant to use the word litigious, it can be said that Mr. Mumma is far
from a novice in this county with respect to litigation. See, e.g., Mann Realty Associates, Inc. v.
Pennsy Supply, Inc., 05-655 Civil Term (Ct. Com. PI. Cumberland 2005); Mumma v. CRH, Inc.,
99-1546 Civil Term (Ct. Com. PI. Cumberland 1999); Mumma v. Pennsy Supply, Inc., 2765
Equity 1999 (Ct. Com. PI. Cumberland 1999); Mumma v. G-A- T Distribution Corp., 94-0423
Civil Term (Ct. Com. PI. Cumberland 1994); Mumma v. Mumma, 84 Equity 1990 (Ct. Com. PI.
Cumberland 1990); Mumma v. Nine Ninety-Nine, Inc., 15 Equity 1990 (Ct. Com. PI. Cumberland
1990); Mumma v. Nine Ninety-Nine, Inc., 14 Equity 1990 (Ct. Com. PI. Cumberland 1990D;
Mumma v. Mumma, 66 Equity 1988 (Ct. Com. PI. Cumberland 1988).
2 See Notice of Appeal, filed May 19, 2005 (appeal from three earlier interlocutory orders);
Opinion of Court Pursuant to Pa. R.A.P. 1925, issued July 15,2005.
3 Notice of Appeal, filed September 15, 2005. The first motion was made, and denied, on March
11,2005. See Order OfCOllrt, March 11,2005.
4 Concise Statement of Matters Complained of on Appeal, fi led October 4, 2005.
This opinion in support of the order appealed from is written pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
The early background of this case has been well summarized by the
Honorable George E. Hoffer, President Judge, in an opinion of this court in 2000.
On January 6, 1999, Robert M. Mumma II. . . petitioned this court for an
accounting of the estate of his father, Robert M. Mumma Sr. . . . , who died
testate on April 12, 1986. The decedent's will and the codicil thereto were
probated on June 5, 1986. The will appoints Mrs. Barbara McK. Mumma,
decedent's widow, and Lisa M. Morgan. . . as executrices thereof and as trustees
of a Marital Trust and a Residuary Trust created thereunder. . .. 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. 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. 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.
[Decedent's widow and Mrs. Morgan] filed interim accounts of their acts
and transactions as executrices and as trustees on August 9, 1991. . . .
[Robert M. Mumma, II,] disclaimed his interest under the will in 1987.
In 1989, [former President Judge Harold E. Sheely ot] this court granted
petitioner's motion to revoke his disclaimer. [Robert M. Frey, Esq.], who was
appointed guardian ad litem for the minor persons interested in the Estate in
1988, appealed the revocation of the disclaimer. 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.
[Robert M. Mumma, II, eventually] ask[ ed] for a complete accounting of
the Estate, including an accounting of the Trusts in which [he] claim[ ed] an
interest. [Decedent's widow and Mrs. Morgan] claim[ed in response that] they
[could not] provide an accounting to [Robert M. Mumma, II,] because he [did]
not have standing, and the issue of the revocation of [his] disclaimer ha[ d] not
been fully litigated. . . .5
This position of the executrices/trustees was rejected by the court, and an
accounting by the executrices/trustees was ordered on February 23, 2000[6
5 In re Estate of Robert M Mumma, No. 21-86-398, slip op. at 1-3 (Ct. Com. PI. Cumberlarid
February 23,2000) (Hoffer, P.J.) (citations omitted).
6 In re Estate of Robert M Mumma, No. 21-86-398 (Ct. Com. PI. Cumberland February 23, 200(i))
(Hoffer, P.J.), appeal quashed, 776 A.2d 300 (2001) (table decision). .
2
Thereafter, a procedural morass developed as accounts, objections to accounts,
supplemental objections to accounts, motions to quash subpoenas, motions of
counsel to withdraw, motions to require notice of property dispositions, petitions
to remove executrices/trustees, exceptions to orders, motions to stay, petitions far
injunctions, motions to compel discovery, etc., were filed.
Among these filings was a motion entitled "Objector's Motion To Compel
Discovery," submitted by Robert M. Mumma, II, on December 21,2004.7 Among
them also was a 74-page document filed by Robert M. Mumma, II, entitled:
SUPPLEMENTAL CONSOLIDATED 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 AND TO THE FIRST, SECOND, THIRD AND
FOURTH INTERIM ACCOUTINGS 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, DECEASED8
These objections are described in the document by the following headings:
The Marital Trust Appears To Be Overfunded. The Estate Account As
Filed Fails To Allocate Funds to the Marital Trust in Accordance with the
Express Direction in Decedent's Will
The Account As Filed Fails To Adequately Explain or Document
Significant Changes in Certain Major Investment Holdings ofthe Estate
The Co-Executrices of the Estate Failed To Preserve Assets Contained in
Decedent's Safety Deposit Box 3332 at the Dauphin Deposit Bank at the Time of
His Death and/or Failed to Adequately Investigate the Disappearance of
Decedent's Assets Which Were Contained in this Safety Deposit Box
The Number of Shares of Pennsylvania Supply Company Stock (700)
Listed on the Account Is Overstated and/or Has Been Overvalued
Liquidation of the Pennsylvania Supply Company Stock Was Contrary to
the Express Wishes of the Decedent and Was Unnecessary
The Co-Executrices of the Estate Refused To Consider Any Other Offers
for the Sale of the Pennsylvania Supply Company Assets Which Were Sold
Outside of the Family to CRH, LPC Despite the Fact That Objector Had Made a
Higher Offer for These Same Assets
7 Objector's Motion To Compel Discovery, filed December 21, 2004.
8 Supplemental Consolidated 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 anq
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 of Robert M. Mumma,
Deceased, filed May 27,2004.
3
Improper Accounting for Fulton Bank Building in Lemoyne, P A
Improper Accounting of Stock Distributions to Barbara McK. Mumma
Improper Accounting for/Distribution of Estate Income to Barbara McK.
Mumma
Objection to Valuation of Leadville, Colorado Property
Objection to Valuation of Bender Property in Mount Holly Springs,
Pennsylvania
Objection to Valuation of Grove Property in Mount Holly Springs,
Pennsylvania
Objection to Valuation of Lebanon Rock, Inc. Stock
Failure of Estate to Perform Under the Shareholders Agreement for
High-Spec, Inc. Stock
Objection to Value of High-Spec, Inc. Stock
Objections to the Attorney Fees Paid by Decedent's Estate and the
Marital Trust to Morgan Lewis and Bockius
Objections to the Attorney Fees Paid by the Marital Trust to Stradley,
Ronon, Stevens & Young
Objection to Jurisdiction
Incorporation of Prior Objections Filed by Charles Shields
Objections Based on Receipts ofPrincipal9
Disbursements of Principal
Distribution of Principal to Beneficiaries
Changes in Princi[pa]l
Payments of Administration Expenses
Distribution of Income to Beneficiaries
Improper Distribution of Family Assets
Impermissible Withdrawals
Failure To Maximize Asset Values
Acts of Corporate Self-DealinglO
The section of the objections referencing "overfunding" read as follows:
9 This and the objections which follow were contained in an earlier filing of objections.
]0 Supplemental Consolidated 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 anld
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. Mumm~,
Deceased, filed May 27,2004.
4
1. The Marital Trust Appears To Be Overfunded. The Estate Account as
Filed Fails to Allocate Funds to the Marital Trust in Accordance with the Express
Direction in Decedent's Will
A.) Under Item Seventh of Decedent's Will the amount
to be awarded to the Marital Trust is a standard pecuniary
formula gift:
SEVENTH: If my wife, BARBARA McK.
MUMMA, survives me, I give and bequeath to
the trustees hereinafter named, 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 which or have passed to
my wife under other provisions of this Will, or
otherwise than under this Will, but only to the
extent that such interests are, for purposes of the
Federal Estate Tax, included in determining my
gross estate and allowed as a marital deduction.
B.) The Account as filed fails to compute the amount to
be awarded to the Marital Trust with reference to the Federal
Estate Tax Return, nor does the Account give credit (for
computation purposes) against the amount to be awarded to the
Marital Trust for the value of the joint marital and other property
which had passed to BARBARA McK. MUMMA under other
provisions of the Will or outside of probate (which property was
required to be included in the Federal Estate Tax return as filed).
A copy of the relevant portions of Federal Estate Return Form
706 as filed are attached hereto as Exhibit "A".
Total Gross Estate (Federal)
Yz of Total Gross Fed Estate
Less: Schedule M Spousal
Joint & Other Property
Passing Outside Probate
Total Amount Which Should
Have Been A warded to
Marital Trust
$16,645,786.00
$8,322,893.00
(861 ,0 18.00)
7,461,875.00
C.) Under the Account as filed, the following principal
amounts were actually distributed to the Marital Trust (See
Exhibit "B" attached hereto):
1986 - 1987 (Vol1, Page 60) $6,289,808.65
2001 - 2002 (Vol 4, Sch E, Page 1) 2.358.359.85
Total Principal Distributions
To Marital Trust
$8,648,168,50
5
D.) The Marital Trust is over funded by $1,186,293.50
calculated as follows:
Actual Principal Distributions
Required Under Will
Marital Trust Overfunded by:
$8,648,168.50
(7,461,875.00)
1,186,293.50
These overfunding amounts may need to be adjusted as
Objector was not able to determine if the adjustments to
valuations were made by the Internal Revenue Service in time
for filing of these objections. If any asset valuation adjustments
occurred on the federal estate tax return, then the carrying values
of those affected assets should have had corresponding
adjustments on the Account, as the Will directs that the adjusted
amounts for federal estate tax purposes are to be used as the
basis for determining the gift to the Marital Trust.
E.) Objector believes that the Marital Trust maybe
overfunded by additional amounts depending on adjustments to
the Estate Account upon this Court rulings on certain of
Objector's other objections set forth below. 1 ]
In an attempt to bring this matter, which commenced in 1986, under
control, the undersigned judge appointed an auditor in the person of thJ
distinguished Cumberland County attorney Taylor P. Andrews, Esq.12 The ordet
appointing Mr. Andrews was dated January 6,2005.13
Within several weeks of the appointment, Robert M. Mumma, II, filed a
motion to have the auditor replaced. 14 Following a hearing on March 11, 2005, a~
which a record was made on this motion, it was denied as devoid of merit. 15 An
oral motion made at this proceeding by Robert M. Mumma, II, that the court also
recuse itself from further participation in the case was similarly denied.16 Another
]1 Id.,at2-4.
]2 Order of Court, January 6,2005.
13 Order of Court, January 6, 2005. The issues to be considered by the auditor include (a) whethe~
the conduct of the executrices/trustees warrants their removal and (b) whether the validity of thd
I
revocation of disclaimer by Robert M. Mumma, II, can continue to be litigated. Orders of Court,1
March 11,2005, April 22, 2005.
]4 Motion To Recuse/Remove Attorney Taylor P. Andrews and To Appoint a New Auditor, filedl
January 31, 2005.
15 Order of Court, March II, 2005.
16 Order of Court, March 11,2005.
6
oral motion made at the proceeding by Robert M. Mumma, II - for a jury trial -
was also denied. 17 Another oral motion made by Robert M. Mumma, II, at the
proceeding - for a stay pending completion of discovery - was also denied,18 and a
formal motion to this effect was later denied by order dated March 30, 2005
(docketed March 31,2005).19
On March 24, 2005, Robert M. Mumma, II, filed a "Request for Jury TrieU
on Objections to Inventory and Accounting Pursuant to PEF Code 777(a)." A ml!e
was issued on the request for a jury trial on March 30, 2005,20 and a response tb
the request was filed by Decedent's widow and Mrs. Morgan on April 8, 2005.21
This response, inter alia, denied the existence in this case of any unresolved
material dispute as to the decedent's title to property. 22 The request for a jury trial
was denied, for the second time, by order dated April 21, 2005 (docketed April 25,
2005).23 This interlocutory order was appealed by Robert M. Mumma, II,24 and
the appeal remains pending in the Superior Court at No. 856 MDA 2005.
Meanwhile, on April 4, 2005, the court held a conference on the motion to
compel discovery that had been filed by Robert M. Mumma, II. The on-the-recol1d
conference, which the auditor attended and participated in, resulted in the
following order of court:
AND NOW, this 4th day of April, 2005, upon consideration
of the Motion To Compel Discovery filed on behalf of Robert M.
Mumma, II, . . . and following a conference. . . in which Brady L.
17 Order of Court, March 11,2005.
]8 Order of Court, March 11,2005.
19 Order of Court, March 30, 2005.
20 Order of Court, March 30, 2005.
21 Response of Barbara McK. Mumma and Lisa M. Morgan to Request of Robert M. Mumma, n
for a Jury Trial Pursuant to 20 Pa. C.S. s777(a), filed April 8, 2005, at 2.
22 Response of Barbara McK. Mumma and Lisa M. Morgan to Request of Robert M. Mumma, ~I
for a Jury Trial Pursuant to 20 Pa. C.S. s777(a), filed April 8, 2005, at 2. '
23 Order of Court, April 21, 2005.
24 Notice of Appeal, filed May 19,2005.
7
Green, Esquire, Michael J. Riffitts, Esquire, and Ivo V. Otto, III,
Esquire, represented Barbara McK. Mumma and Lisa M. Morgan,
Ralph A. Jacobs, Esquire, represented Barbara Mann Mumma, and
Robert M. Mumma, II, appeared pro se, it is ordered and directed
that the executrixes/trustees, within 20 days of today's date, file
responses to the Objector's First Set of Request for Production of
Documents to the Executrixes/Trustees, the Objector's First Set of
Interrogatories to Executrixes, Robert M. Mumma, II's, Second Set
of Requests for Production of Documents to the
Executrixes/Trustees, and Robert M. Mumma, II's, Third Set of
Requests for Production of Documents to the Executrixes/Trustees,
and that the auditor, within 45 days of today's date, hold a pre-
hearing conference among the interested parties for purposes of
recommending an order with respect to any further discovery in the
case and with respect to any issues presented by the responses of the
executrixes/trustees to the discovery requests. 25
Shortly thereafter, Robert M. Mumma, II, filed a "Motion To Compel!
Inspection of All Books and Records.,,26 As had been done with his earli~r
I
discovery motion, this matter was referred to the auditor in the first instance for
purposes of proposing a recommended order?? This interlocutory order, date~
April 29, 2005 (docketed April 29, 2005), referring the motion to the auditor for
review, was appealed by Robert M. Mumma, II,28 and remains pending in th~
Superior Court at No. 856 MDA 2005.
Mr. Andrews, in his capacity as auditor, conducted the pre-hearing
conference referred to in this court's order dated April 4, 2005, quoted above, and,
in accordance with his recommendation,29 the court entered the following order
dealing, for the moment, with the various outstanding discovery issues in the caset
AND NOW, this 19th day of May 2005, upon
recommendation of the Auditor in this case, it is hereby ordered as
25 Order of Court, April 4, 2005.
26 Motion To Compel Inspection of All Books and Records, filed April 22, 2005.
27 Order of Court, April 29, 2005.
28 Notice of Appeal, filed May 19,2005.
29 Auditor's Request for Discovery Order, filed May 17,2005.
8
follows with regard to discovery pertaining to the objections that
have been filed to the accounts filed at the docket:
Any party expressing one or more objections to one or more
of the accounts shall serve his or her discovery requests upon
counsel for the estate and related trusts no later than June 13, 2005.
Past discovery requests that have not been answered shall be served
again. Copies of all discovery requests shall be sent to the Auditor
and docketed of record with the Clerk of the Orphans' Court.
The Estate and related trusts shall file a response to the
requested discovery no later than July 13, 2005, and any discovery
that is not subject to an objection shall be provided by July 28,2005.
All objections to the discovery shall be copied to the Auditor and
docketed of record with the Clerk of the Orphans' Court, and shall
be supported with a brief setting forth the legal authorities
supporting the objections to the discovery. Any response that the
requested discovery has been previously provided shall specifically
state the time, manner and context of the previous delivery.
A party seeking discovery that is resisted by the estate or
trusts shall file a brief with legal authorities in support of the
requested discovery by August 27, 2005. This brief shall be served
upon the Auditor as well as all other parties.3D
Meanwhile, Robert M. Mumma, II, filed a "Request for Order That Esta~e
Has Waived Its Right To Contest a Disclaimer Filed and Revoked or,
Alternatively, Request for Immediate Hearing To Determine Whether the Esta~e
Has Waived Its Right," on April 20, 2005.31 By order of court dated April 2i,
2005, this question was included among the issues to be reviewed by the auditor in
the course of his duties relating to the objections to the accounts.32 This
interlocutory order was apparently the subject of an appeal by Robert M. Mumma,
30 Order of Court, May 19,2005.
31 Request for Order That Estate Has Waived Its Right To Contest a Disclaimer Filed and
Revoked or, Alternatively, Request for Immediate Hearing To Determine Whether the Estate Has
Waived Its Right, filed April 20, 2005.
32 Order of Court, filed April 22, 2005.
9
11/3 and, to that extent that it was, the appeal remams pending m the Superior
Court at No. 856 MDA 2005.
On April 27, 2005, Robert M. Mumma, II, filed a "Motion for Recusal of
Judge Due to Appearance of Impropriety.,,34 The motion, in its entirety, read ~s
follows:
AND NOW, comes the Petitioner, Robert M. Mumma II, pro se, and files the
within Request for Recusal of Judge Wesley Oler of the Cumberland County
Court of Common Pleas in the above-noted matter due to an appearance of
impropriety and in support thereof avers the following:
I. Petitioner is Robert M. Mumma, an adult individual, acting pro se.
2. Petitioner is a beneficiary of the Estate of his late father, Robert M.
Mumma.
3. Recently, on April 18, 2005, during a hearing in the matter of Mumma, et.
at. v. Estate of Mumma, et .at. Defendants proffered testimony of Joseph
O'Connor, Esquire, ofthe Morgan, Lewis & Bockium law firm.
4. During the hearing Mr. O'Connor testified to the fact that he is and has
been lead counsel for the Estate of Robert M. Mumma.
5. At one point during the witness's testimony, Judge Oler inquired of him
whether he was the same attorney who wrote the will of the Judge's mother, to
which Mr. O'Connor replied in the affirmative.
6. After that response, counsel for Robert M. Mumma II indicated that he
believed that an appearance of impropriety existed.
7. Judge Oler then chose to recuse himself from the case due to the
appearance of impropriety and ordered the case be reassigned to another judge of
Cumberland County.
8. In this Estate case, Judge Oler has been assigned many of the recent
motions, petitions and hearings.
9. Mr. O'Connor may be a witness in various proceedings in this Estate case
as lead counsel for the Estate.
10. The Estate has been requested for many years to allow Robert M.
Mumma II the opportunity to review records of the Estate, to which he is entitled
as a beneficiary of the Estate, but counsel for the Estate, including Mr. O'Connor,
has refused Robert M. Mumma that right.
II. Due to Mr. O'Connor's intimate involvement with this Estate as well as
his professional relationship with members of the Judge's family an appearance of
impropriety exists.
WHEREFORE, Robert M. Mumma II respectfully requests the Honorable
Judge Oler to recuse himself from hearing any matters in the Estate due to the
existence of an appearance of impropriety in that lead counsel for the Estate has
had a professional relationship with members of the Judge's family and Robert M.
33 Notice of Appeal, filed May 19,2005.
34 Motion for Recusal of Judge Due to Appearance ofImpropriety, filed April 27, 2005.
10
Mumma II respectfully requests the Estate be assigned to another Judge of the
Cumberland County Court of Common Pleas.35
A hearing on this motion was held by the court on August 29, 2005. The
evidence at the hearing indicated that in another of Mr. Mumma's cases the court
had chosen to recuse itself when it realized that a witness who was directly
testifying before it-Joseph A. O'Connor, Jr., Esq., of the Philadelphia law firm df
Morgan, Lewis & Bockius-had been the scrivener of the will of the court'is
mother. 36 The basis of the position of Mr. Mumma in the present case w~s
evidenced in the following excerpt from the transcript of the hearing on August
29,2005:
THE COURT: . . . You have referred to the closeness
of the Oler family with Morgan, Lewis & Bockius, you need to
be very specific as to what you are ta[l ]king about.
My recollection is my father was in
the firm of Morgan, Lewis & Bockius and that he retired in the
1970s. Apparently, Joseph A. O'Connor, Jr., who was with
Morgan, Lewis & Bockius, wrote my mother's will, which has
since been probated following her death. The firm of Morgan,
Lewis & Bockius is not the attorney for the estate.
Is there something more that you think
should be placed on the record with regard to my association
with Morgan, Lewis & Bockius such as it is?
MR. MUMMA: I think that relationship is enough,
Your Honor. Weare talking about the reliability of your
father's law partners. It is his law firm and his partners that are
here taking my assets and distributing them to my father's
estate.
I claim it is a continuing criminal
conspiracy, and I don't think I am going to get an impartial
hearing in these issues because of the closeness of the
relationship with Morgan, Lewis & Bockius. . . .37
* * * *
35 Motion for Recusal ofJudge Due to Appearance ofImpropriety, filed April 27, 2005.
36 N.T. 5, Hearing, August 29,2005.
37 N.T. 6-7, Hearing, August 29,2005.
11
! r
. . . Mr. O'Connor is going to be on
that stand and that will be at the end of the day and it will all be
for [naught]. Now the time to do this is now.
THE COURT: Why would he be on the stand in my
courtroom?
MR. MUMMA: Well, I guess we are assuming then
that whatever Mr. Andrews [the auditor] says is going to be
gospel and it will never be able to be challenged.
THE COURT: No, we are assuming that the record
will be made in front of Mr. Andrews, not in front of me.
MR. MUMMA: That is hardly due process. I am
entitled to my day in front of a judge, he wasn't elected
. d 38
JU ge.
At the conclusion of the hearing, the court issued the following order, from
which Mr. Mumma has appealed:
AND NOW, this 29th day of August, 2005, upon
consideration of Petitioner's Motion for Recusal of Judge Due
to Appearance of Impropriety, and following a hearing, the
motion is denied without prejudice to Petitioner's right to
submit a new motion in the event that the record as it develops
would warrant the same.39
The court's explanation to Mr. Mumma of the order, and his reaction, were
as follows:
THE COURT: .,. So, Mr. Mumma, I have denied
your motion at this time. If as the record transpires it seems to
me that there would be a conflict or the appearance of a
conflict on my part, obviously, I will consider it in a motion.
MR. MUMMA: In my perspective, Your Honor, I have
been thrown out of court, that is exactly what you are doing. I
am now in the hands of Mr. Andrews, who is going to do
whatever he is told to, and this Court is denying me due
process. I have asked that since you have thrown me out of
court that I be able to appeal this issue.
38 N.T. 8, Hearing, August 29, 2005.
39 NT 9, Hearing, August 29,2005; Order of Court, August 29,2005.
12
I'
THE COURT: No, you may not; and you have not
been thrown out of court, and that is a ridiculous statement.
MR. MUMMA: It is not a ridiculous statement. 40
Mr. Mumma filed his appeal from the order of the court denying his recusal
motion on September 15,2005.41
DISCUSSION
Appeals of interlocutory orders. "[T]he general rule [is] that interlocutory
orders are not [immediately] appealable. . .." Jones v. Trojak, 535 Pa. 95, 103,
634 A.2d 201, 205 (1993); see T.CR. Realty, Inc. v. Cox, 472 Pa. 331, 337, 372
A.2d 721, 724 (1977); Pa. R.A.P. 341. The main reason for proscribing immediate
interlocutory appeals is judicial economy. See Schaffer v. Litton Systems, Inc.,
372 Pa. Super. 123, 125, 539 A.2d 360, 361 (1998). However, "the rule also
serves to discourage tactics in litigation intended to overwhelm an opposing party
with the expense and delay inherent in separate appellate litigation of intermediate
matters. . .." Heitzman-Nolte v. Nolte, No. 00-1052 Support, slip op. at 5 (Ct.
Com. PI. Cumberland June 22, 2004), appeal quashed, No. 841 MDA 2004 (Pa,
Super. Ct. December 2,2004).
"We have variously defined a final order as one which ends the litigation,
or alternatively disposes of the entire case. . .. Conversely phrased, an order is
interlocutory and not final unless it effectively puts the litigant out of court."
Allegheny Ludlum Steel Corp. v. Pennsylvania Public Utility Comm 'n, 67 Pa.
Commw. 400, 408, 447 A.2d 675,679 (1982) (quoting T.CR. Realty, Inc., 472 Pa.
at 337, 372 A.2d at 724). The final, appealable order in a decedent's estate is the
confirmation of the personal representative's final account. See In re Estate of
Borkowski, 2002 Pa. Super. 57, ~9, 794 A.2d 388, 390 (quashing appeal from
order directing co-executors to amend their accounting); In re Estate of Meininger,
40N.T. 9-10, Hearing, August 29, 2005.
41 Notice of Appeal, filed September 15,2005.
13
367 Pa. Super. 105, 532 A.2d 475 (1987) (dismissing appeal from order that
dismissed objections to executor's account but did not confirm account).
Exceptions to the general rule that an interlocutory order is not appealable
prior to the entry of a final order in a case include: (a) certain types of orders
enumerated in Pennsylvania Rule of Appellate Procedure 311 (orders affecting
judgments, relating to attachments, changing venue or venire in a criminal case,
regarding injunctions, granting peremptory judgment in mandamus, awarding a
new trial in a civil case, directing partition, or having been authorized by statute or
general rule), (b) collateral orders as defined in Pennsylvania Rule of Appellate
Procedure 313,42 and (c) those orders permitted to be appealed to an appellatt
court following a certification by the lower court "that such order involves a
,
controlling question of law as to which there is substantial ground for difference of
opinion and that an immediate appeal from the order may materially advance the
ultimate termination of the matter. . .." Act of July 9, 1976, P.L. 586, S2, a$
amended, 42 Pa. C.S. S702(b); see Pa. R.A.P. 312, 1311.
"Generally, [a ruling on a recusal motion] is not a 'final order' whicl!1
terminates the litigation. . .." Meinhart v. Heaster, 424 Pa. Super. 433, 438, 62~
A.2d 1380, 1383 (1993). Furthermore, the Pennsylvania Superior Court has held
that, as a general rule, "orders denying a motion for recusal are not collateral and~
therefore, are not immediately appealable." Commonwealth v. Stevenson, 200j
PA Super. 267, ,-r9, 829 A.2d 701,704, citing Kriegv. Kreig, 1999 PA Super. 316,
74 A.2d 509; Kenis v. Perini Corp., 452 Pa. Super. 634, 682 A.2d 845 (1996).
In the present case, the order of the court declining to recuse itself at the
present time did not put Mr. Mumma out of court, and thus was interlocutory. It
was not an interlocutory order of the type enumerated as appealable, nor was it
classifiable as collateral, nor did this court certify it as appropriate for appeal
42 Under this rule, "[a] collateral order is an order separable from and collateral to the main causlp
of action where the right involved is too important to be denied review and the question presented
14
during the pendency of the case. Consequently, it is believed that the appeal from
the order is subject to quashal.
Motions for recusal. "It is the burden of the party requesting recusal to
produce evidence establishing bias, prejudice or unfairness which raises ~
substantial doubt as to the jurist's ability to preside impartially." Commonwealt~
v. Abu-Jamal, 553 Pa. 485, 507, 720 A.2d 79, 89 (1998).
In considering a recusal request, the jurist must first make a
conscientious determination of his or her ability to assess the
case in an impartial manner, free of personal bias or interest
in the coutcome. The jurist must then consider whether his or
her continued involvement in the case creates an appearance
of impropriety and/or would tend to undermine public
confidence in the judiciary. This is a personal and
unreviewable decision that only the jurist can make. Where a
jurist rules that he or she can hear and dispose of a case fairly
and without prejudice, that decision will not be overturned on
appeal but for an abuse of discretion. 43
In the present case, where the person whose testimony would allegedly
place the court in a compromising position had not yet been called as a witnes~,
where his testimony - if it occurred - would be before an auditor rather tha1l1
the court, where the court's only connection with the putative witness was that its
father had been a member of the witness's law firm and that the witness had bee~
the scrivener of the will of the court's mother, where the court's father had retire~
from the firm in the 1970's, long before the present case originated, where the fiml1
had not been retained to represent the estate of the court's mother, and where thf
court's order declining to recuse itself was expressly without prejudice to MI1.
Mumma's right to reassert the motion in the event that circumstances mor~
indicative of a conflict developed, it is believed that the court's refusal to imposlj:
this case upon another judge was not an abuse of discretion.
is such that if review is postponed until final judgment in the case, the claim will be irreparably
lost." Pa. R.A.P. 313(b).
43 Commonwealth v. Abu-Jamal, 553 Pa. 507, 720 A.2d 89 (citations omitted).
15
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To the extent that the issue of the court's refusal to sanction an appeal from
the order by Mr. Mumma is encompassed by his appeal, it may be noted that, in
the court's view, the order did not involve "a controlling question of law as to
which there [was] a substantial ground for difference of opinion and that a:tl1
immediate appeal from the order [might] materially advance the ultimate
termination of the matter. .." To the contrary, it was felt that certification of the
issue for appeal would needlessly prolong an estate which has already been in
litigation for almost twenty years.
BY THE COURT,
Taylor P. Andrews, Esq.
78 West Pomfret Street
Carlisle, P A 17013
Auditor
Ivo V. Otto, III, Esq.
Ten East High Street
Carlisle, P A 17013
and
Brady L. Green, Esq.
1701 Market Street
Philadelphia, PA 19103-2921
Attorneys for Barbara
McKimmie Mumma and Lisa M.
Morgan
Ralph A. Jacobs, Esq.
215 South Broad Street
10th Floor
Philadelphia, P A 19107
F or Barbara Mann Mumma
Robert M. Mumma, II
Box 58
Bowmansdale, P A 17008
Pro Se
16
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