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Home My WebLink About10-06-06 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION q '---:C) ~:"-:_] " ~J IN RE: THE ESTATE OF ROBERT M. MUMMA, DECEASED ORPHANS' COURT MOTION TO AMEND ORDER Pursuant to Rule 312 of the Pennsylvania Rules of Appellate Procedure, Robert M. Mumma \I (herein Movant) respectfully moves the Court to amend its Order dated September 5, 2006 and entered on September 6, 2006 (herein the Order) for the following reasons. 1. The Order at issue granted the Estate's motion to strike the lis pendens filed herein by the Movant. 2. The Order might be deemed to be an interlocutory Order and unappealable for that reason, although the Movant reserves the right to assert that the Order is a collateral Order and is therefore appealable as of right pursuant to Rule 313 of the Pennsylvania Rules of Appellate Procedure. 3. If the Order is deemed to be an interlocutory Order, an appeal of that Order might be appropriate by filing a Petition for Permission to Appeal pursuant to Chapter 13 of the Pennsylvania Rules of Appellate Procedure. 1 ,...,., = = 0.... W N .:::- :-Ii ,-,"; ,..-'", \." ~ (....) 23 r-', CJ C) -n --. -_TI - . C) ;_1"1 '. - ,:-'''-''\ -'--i~l Cl (J -l I 0'1 -0 ::;: 4. Any such Petition must include a statement from this Court that the Order "involves a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter...." See 42 Pa.C.S. 9702(b). 5. For the following reasons, Movant respectfully submits that the Order "involves a controlling question of law as to which there is a substantial ground for difference of opinion." a. As is set forth in the Motion for Determination of Finality filed contemporaneously herewith, the Pennsylvania Supreme Court and the Superior Court have said that an order striking a lis pendens has significantly different consequences. b. In its Opinion in United States National Bank of Johnstown v. Johnson, 487 Pa. 809 (Pa. 1985), the Supreme Court said, "An Order lifting a lis pendens fixes neither rights, duties, nor liabilities between the parties, puts no one out of court, and does not terminate the underlying litigation.... Accordingly, the requisite 'finality' is not present when a lis pendens is lifted and the order, therefore, is interlocutory." 487 A.2d at 812. c. By contrast, in its Opinion in Janus ManaQement Services. Inc. v. SchlessinQer, 810 A.2d 637 (Pa. Super. 2002), the Superior Court said, "Lis pendens is notice to the world that a cloud over the title to a property exists. Once the lis pendens is stricken by a court, that is equally notice to the world that ? there is no longer a valid claim on the title, no matter the merits of the underlying action." 810 A.2d at 642. d. To summarize, the Supreme Court said, "An Order lifting a lis pendens fixes neither rights, duties, nor liabilities between the parties...," whereas the Superior Court said, "Once the lis pendens is stricken by a court, that is equally notice to the world that there is no longer a valid claim on the title, no matter the merits of the underlying action." e. To summarize even further, the Supreme Court has held that striking a lis pendens does not affect the "rights, duties, nor liabilities between the parties,' and the Superior Court has held that "Once the lis pendens is stricken by a court, .,. there is no longer a valid claim on the title." f. The Opinions of the Supreme Court and the Superior Court are clearly inconsistent with each other, so this case obviously "involves a controlling question of law as to which there is a substantial ground for difference of opinion." 6. For the following reasons, Movant submits that "an immediate appeal from the order may materially advance the ultimate termination of the matter," as required by 42 Pa.C.S. 9702(b). a. The administration of this Estate has been pending before this Court for 20 years, and the Executors did not file a Final Accounting or plan for a proposed distribution until January 6, 2004. ~ b. Movant filed numerous objections to that Accounting, the Court has appointed Taylor P. Andrews, Esquire, as Auditor to hear evidence regarding those objections, and the hearings have not yet commenced. c. The issue of the propriety of the Order striking the lis pendens is collateral to the merits of the objections filed by Movant, but the Movant's right to file the lis pendens is crucial to the preservation of Movant's rights. d. Movant filed the lis pendens to give notice that he has asserted his rights to certain real estate to which the Estate also claims ownership, so any postponement of a decision regarding the striking of lis pendens might result in the irreparable loss of Movant's rights, at least according to the Opinion of the Superior Court in Janus Manaoement Services. Inc. v. Schlessinoer, 810 A.2d 637 (Pa. Super. 2002). e. An immediate appeal of this Court's Order striking the lis pendens will permit the Superior Court to review and consider the apparently conflicting Opinions in United States National Bank of Johnstown v. Johnson, 487 Pa. 809 (Pa. 1985) and Janus Manaoement Services. Inc. v. Schlessinoer, 810 A.2d 637 (Pa. Super. 2002) while the issues relating the administration of the Estate are being reviewed and considered by this Court. f. In sum, if this Court issues the statement requested herein, the Superior Court would be able to resolve the lis pendens issues while the other issues are being resolved in this Court, thereby "materially advanc[ing] the ultimate termination of the matter...." See 42 Pa.C.S. 9702(b). A WHEREFORE Robert M. Mumma II respectfully moves this Court to enter an Order in the form attached hereto, as authorized by 42 Pa.C.S. 9 702(b) and Chapter 13 of the Pennsylvania Rules of Appellate Procedure. Dated: October 6,2006 Respectfully submitted, ~ }tt. ~~".~ ." X- Robert M. Mumma, II Box 58 Bowmansdale, PA 17008 (717) 612-9720 In Pro Se ~ VERIFICA lION I hereby verify, subject to the penalties of 18 Pa.C.S. 94904, that the averments in the foregoing are true and correct to the best of my knowledge, information, and belief. Dated: October 6,2006 ~~, \t.,.., UJ"~ obert M. Mumma, II n CERTIFICATE OF SERVICE I hereby certify that I served the foregoing Motion by placing true and correct copies thereof in the United States mail, first class postage pre-paid, addressed as follows: Taylor P. Andrews, Esquire, Auditor 78 East Pomtret Street Carlisle, Pennsylvania 17103 George B. Faller, Esquire Attorney tor the Estate 10 East High Street Carlisle, Pennsylvania 17103 Court Administrator One Court House Square Carlisle, Pennsylvania 17103 Dated: October 6,2006 A!),{.~1C Robert M. Mumma, II 7