HomeMy WebLinkAbout10-06-06 (2)
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
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IN RE: THE ESTATE OF
ROBERT M. MUMMA, DECEASED
No. 21 - 86 - 398
ORPHANS' COURT
MOTION FOR DETERMINATION
OF FINALITY
Pursuant to Rule 342 of the Pennsylvania Rules of Appellate Procedure,
Robert M. Mumma II (herein Movant) respectfully moves this Court to enter an
Order determining that its Order dated September 5, 2006 and entered on
September 6, 2006 (herein the Order) was a Final Order for purposes of appeal.
Movant respectfully submits the following in support of its Motion.
1. Rule 342 says, "An Order of the Orphans' Court Division ... determining
an interest in realty... shall be immediately appealable... upon a determination
of finality by the Orphans' Court Division...."
2. The Note to that Rule says, "This rule was amended in 2001 to allow
appeals from orders determining an interest in realty, personalty or status of
individuals or entities upon certification of the Orphans' Court judge."
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3. The Order entered herein said, "the lis pendens filed in this case is
stricken." See Order dated September 5,2006 and entered on September 6,
2006.
4. In its Opinion in Janus Manaaement Services. Inc. v. Schlessinaer, 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.
5. According to the principle established by the Opinion in Janus
Manaaement Services. Inc. v. Schlessinaer, 810 A.2d 637 (Pa. Super. 2002), the
Order entered herein clearly decided the extent of the Movant's "interest in realty"
because the Order constituted "notice to the world that there is no longer a valid
claim on the title, no matter the merits of the underlying action."
6. Stated more simply, the Order, by striking the lis pendens, determined
that Movant ceased to have a "valid claim on the title" to the real estate subject to
the lis pendens.
7. The Opinion of the Superior Court in Janus Manaaement Services
seems contrary to the Opinion of the Supreme Court in United States National
Bank of Johnstown v. Johnson, 487 Pa. 809 (Pa. 1985), where the 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
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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.
8. There are obvious inconsistencies in the appellate Courts' definitions of
the concept of lis pendens, and there is appellate authority that this Court's Order
did determine the Movant's "interest in realty" and therefore may be appealable
pursuant to Rule 342, if this Court so determines.
9. Movant respectfully submits that he will suffer irreparable harm if this
Court does not determine that its prior Order was a final Order.
10. Specifically, as Movant has alleged and proved at the hearing, the
Order striking the lis pendens will permit the Estate to transfer ownership of real
estate to which Movant claims an interest, and pursuant to the principle
established in the Janus Manaaement Services Opinion, Movant will be
permanently precluded from asserting that interest.
11. There are substantial interests of Movant at stake in this litigation,
specifically his rights to ownership of valuable real estate, and Movant
respectfully submits that he should be entitled to file an appeal to the Superior
Court for a review of this Court's Order that directly affected those rights.
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WHEREFORE for all the reasons set forth herein, Movant submits that
this Court should enter an Order determining that its Order dated September 5,
2006 and entered on September 6, 2006 was a Final Order for purposes of
appeal.
Dated: October 6,2006
Respectfully submitted,
~~umma, II
Box 58
Bowmansdale, PA 17008
(717) 612-9720
In Pro Se
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VERIFICATION
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
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Robert M. Mumma, "
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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 Pomfret Street
Carlisle, Pennsylvania 17103
George B. Faller, Esquire
Attorney for the Estate
10 East High Street
Carlisle, Pennsylvania 17103
Court Administrator
One Court House Square
Carlisle, Pennsylvania 17103
Dated: October 6,2006
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Robert M. Mumma, II
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