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IN RE: THE ESTATE OF :
ROBERT M. MUMMA,
DECEASED
IN THE COURT OF COMMoN PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
ORPHANS' COURT DIVI$ION
NO. 21-1986-398
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., November 8, 2006.
In this decedent's estate case which remains unsettled after more than
twenty years, 1 a pro se litigant has filed the latest in a series of appeals from non-
final orders of this court.2
The subject of the instant appeal is an interlocutory order striking a lis
pendens which the litigant had filed.3 This is the fourth case in which the litigant
has attempted to affect the property in question with a lis pendens.4
The present appeal was filed without a determination by this court of
finality with respect to the order, pursuant to Pennsylvania Rule of AppellalS
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I Letters testamentary were granted on June 5, 1986. :g
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2 Notice of Appeal, filed October 6, 2006; Order of Court, September 5, 2006. Although issued
on September 5, 2006, the order appealed from was entered on the docket on September 6, 2006.
See Nos. 856 MDA 2005 and 1546 MDA 2005 (Pennsylvania Superior Court).
3 Order of Court, September 5, 2006.
4 Estate of Robert M. Mumma's Motion To Strike Lis Pendens, para. 9, filed May 5, 2006; Robert
M. Mumma, II, Exhibit 1, Hearing, August 31,2006 (answer to motion to strike lis pendens).
Although the court is reluctant to use the word litigious, it can be said that Appellant Mumma is
far from a novice in this county with respect to litigation. See, e.g., Mann Realty Associates v.
Pennsy Supply, Inc., 05-655 Civil Term (Ct. Com. PI. Cumberland 2005); Mumma v. CRN, 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, ~4 Equity 1990 (Ct. Com. PI.
Cumberland 1990); Mumma v. Nine Ninety-Nine, Inc., 15 Equity 1990 (Ct. Com. PI. Cumberland
1990); Mumma v. Nine Nine-Nine, Inc., 14 Equity 1990 (Ct. Com. PI. Cumberland 1990);
Mumma v. Mumma, 66 Equity 1988 (Ct. Com. PI. Cumberland 1988).
1\
~v
Procedure 341(c).5 Nor did this court amend the order to facilitate an immediate
appeal pursuant to Section 702(b) of the Judicial Code.6 I
The issues on the litigant's appeal have been exwessed in a statement of
matters complained of on appeal as follows:
1. Does an Order of the Court that strikes a /is pendens "notice [sic] to
the world that there is no longer a valid claim on the title" to the property,
as the Superior Court held in Janus Management Services, Inc. v.
Schlessinger, 810 A.2d 637 (Pa. Super. 2002)?
2. Is an Order that determines that there is no longer a valid claim on
the title to the property a final order within the meaning of Rule 341 of the
Rules of Appellate Procedure?
3. Is an Order that determines that there is no longer a valid claim on
the title to the property a collateral order within the meaning of Rule
313(b) of the Rules of Appellate Procedure?
4. Does a party permanently lose any rights if that party fails to or is
prohibited from appealing an Order striking a /is pendens entered by that
party, as the Superior Court said in Janus Management Services, Inc. v.
Schlessinger, 810 A.2d 637 (Pa. Super. 2002)?
4. [sic] Does an order lifing a /is pendens fail to fixiany rights, duties,
or liabilities between the parties, does it put no one out of court, and does
it fail to terminate the underlying litigation, as the Supreme Court held in
United States National Bank of Johnstown v. Johnson, 487 A.2d 809 (Pa.
1985)?
5. Can the Opinions of the Supreme Court in United States National
Bank of Johnstown v. Johnson, 487 A.2d 809 (Pa. 1985) and the Superior
Court in Janus Management Services, Inc. v. Schlessinger, 810 A.2d 637
(Pa. Super. 2002) be reconciled?7
This opinion in support of the order appealed from is written pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
By way of background, it may be noted that the litigant, Robert M.
Mumma, II, is one of the children of the decedent in the above-captioned case,
5 See Order of Court, October 11, 2006 (denying motion for determination of finality with respect
to order striking lis pendens).
6 See Order of Court, October 11, 2006 (denying motion for amendlment of order to indicate that
immediate appeal may materially advance ultimate termination of jmatter); Act of July 9, 1976,
P.L. 586, 92, as amended, 42 Pa. C.S. 9702(b).
7 Statement of Matters Complained of, filed October 27,2006.
2
Robert M. Mumma,8 and one of the grandchildren of Ro>>ert M. Mumma's father,
Walter M. Mumma, also deceased.9 The early backgrou~d of the present case has
been well summarized by the Honorable George E. Hoff~r, 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 duting 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 of] 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 whith [he] claim[ ed] an
interest. [Decedent's widow and Mrs. Morgan] claim[ed ih response that] they
[could not] provide an accounting to [Robert M. Mumma, ;11,] because he [did]
not have standing, and the issue of the revocation of [his] disclaimer ha[ d] not
been fully litigated. . . .10
8 N. T. 8, 14-15, Hearing, August 31, 2006.
9 See N.T. 14, Hearing, August 31, 2006.
10 In re Estate of Robert M Mumma, No. 21-86-398, slip op. at 1~3 (Ct. Com. PI. Cumberland
February 23, 2000) (Hoffer, P.J.) (citations omitted).
3
This position of the executrices/trustees was rejec~ed by the court, and an
accounting by the executrices/trustees was ordered or' February 23, 2000.11
Thereafter, a procedural morass developed as accounts, objections to accounts,
i
supplemental objections to accounts, motions to quashi 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 for
injunctions, motions to compel discovery, etc., were filed.
Among these filings was a motion entitled "Objector's Motion To Compel
Discovery," 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, DECEASEDI2
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 of the 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 ofthe Pennsylvania Supply Company Stock Was Contrary to
the Express Wishes of the Decedent and Was Unnecessary
II In re Estate of Robert M Mumma, No. 21-86-398 (Ct. Com. PI. Cumberland February 23,
2000) (Hoffer, P.I.), appeal quashed, 776 A.2d 300 (2001) (table de~ision).
I2 Supplemental Consolidated Statement of Objections to the A~count of Barbara K. McK.
Mumma and Lisa M. Morgan as Co-Executors of the Estate ofRob~rt M. Mumma, Deceased and
to the First, Second, Third and Fourth Interim Accountings of Barbata K. McK. Mumma and Lisa
M. Morgan as Co-Trustees of the Marital Trust Under Will the Will of Robert M. Mumma,
Deceased, tiled May 27,2004.
4
The Co-Executrices of the Estate Refused To Consi~er Any Other Offers
for the Sale of the Pennsylvania Supply Company Asse$ Which Were Sold
Outside of the Family to CRH, LPC Despite the Fact That fbjector Had Made a
Higher Offer for These Same Assets
Improper Accounting for Fulton Bank Building in L~moyne, P A
Improper Accounting of Stock Distributions to Barbara McK. Mumma
Improper Accounting forlDistribution 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 I
Objection to Value of High-Spec, Inc. Stock
Objections to the Attorney Fees Paid by Deced~nt'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 ofPrincipal13
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-Dealingl4
13 This and the objections which follow were contained in an earlier tiling of objections.
14 Supplemental Consolidated Statement of Objections to the A~count of Barbara K. McK.
Mumma and Lisa M. Morgan as Co-Executors of the Estate of Rob~rt M. Mumma, Deceased and
to the First, Second, Third and Fourth Interim Accountings of Barbata K. McK. Mumma and Lisa
I
I
5
The section of the objections referencing "overfun4ing" read as follows:
1. The Marital Trust Appears To Be Overfunded. *e Estate Account as
Filed Fails to Allocate Funds to the Marital Trust in Accord ce with the Express
Direction in Decedent's Will
A.) Under Item Seventh of Decedent's Wi~l 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 incllJding
therein, for computation purposes, my undiVided
interest in the value of all my interests in
property which pass or which or have pass~d to
my wife under other provisions of this Will, or
otherwise than under this Will, but only t(J the
extent that such interests are, for purposes qfthe
Federal Estate Tax, included in determinin'g my
gross estate and allowed as a marital deduction.
B.) The Account as filed fails to compute tlle 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)
~ 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
(861.018.00)
7,461,87'5.00
C.) Under the Account as filed, the folloWing principal
amounts were actually distributed to the Maritall Trust (See
Exhibit "B" attached hereto): '
1986 - 19870'011, Page 60)
$6,28~,808.65
I
M. Morgan as Co-Trustees of the Marital Trust Under Will the Wi~l [sic] of Robert M. Mumma,
Deceased, filed May 27,2004.
6
2001 - 2002 (Vol 4, Sch E, Page 1) 2.358~359.85
Total Principal Distributions !
To Marital Trust $8,648~ 168,50
D.) The Marital Trust is over funded by ~1,186,293.50
calculated as follows: !
Actual Principal Distributions $8,648~ 168.50
Required Under Will (7.4611.875.00)
Marital Trust Overfunded by: 1,186~293.50
These overfunding amounts may need to bb adjusted as
Objector was not able to determine if the adjjustments 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 calrrying values
of those affected assets should have had cprresponding
adjustments on the Account, as the Will directs that the adjusted
amounts for federal estate tax purposes are to b~ 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 a~justments to
the Estate Account upon this Court rulings oh certain of
Objector's other objections set forth below. 15
In an attempt to bring this matter, which commenced in 1986, under
control, the undersigned judge appointed an auditor! in the person of the
distinguished Cumberland County attorney Taylor P. Andrews, Esq.16 The order
appointing Mr. Andrews was dated January 6, 2005.17
Within several weeks of the appointment, Robert M. Mumma, II, filed a
motion to have the auditor replaced.18 Following a hearing on March 11, 2005, at
which a record was made on this motion, it was denied $,s devoid of merit. 19 An
oral motion made at this proceeding by Robert M. Mumma, II, that the court also
15 Id., at 2-4.
16 Order of Court, January 6, 2005.
17 Order of Court, January 6, 2005. The issues to be considered by the auditor include (a) whether
the conduct of the executrices/trustees warrants their removal and (b) whether the validity of the
revocation of disclaimer by Robert M. Mumma, II, can continue to pe litigated. Orders of Court,
March 11, 2005, April 22, 2005.
18 Motion To Recuse/Remove Attorney Taylor P. Andrews and To Appoint a New Auditor, filed
January 31, 2005. '
$19 Order of Court, March 11, 2005.
7
recuse itself from further participation in the case was sirriilarly denied.2o Another
oral motion made at the proceeding by Robert M. Mumtpa, II - for a jury trial -
was also denied.21 Another oral motion made by RObdrt M. Mumma, II, at the
proceeding - for a stay pending completion of discovery i was also denied,22 and a
formal motion to this effect was later denied by orden dated March 30, 2005
(docketed March 31, 2005).23
On March 24, 2005, Robert M. Mumma, II, filed a "Request for Jury Trial
on Objections to Inventory and Accounting Pursuant to PEF Code 777(a)." A rule
was issued on the request for a jury trial on March 30, 2005,24 and a response to
the request was filed by Decedent's widow and Mrs. Morgan on April 8, 2005.25
This response, inter alia, denied the existence in this case of any unresolved
material dispute as to the decedent's title to property.26 The request for a jury trial
was denied, for the second time, by order dated April 21, 2005 (docketed April 25,
2005).27 This order was appealed by Robert M. Mumm~, 11,28 and subsequently
affirmed by the Pennsylvania Superior COurt.29
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-record
conference, which the auditor attended and participated in, resulted in the
following order of court:
20 Order of Court, March 11,2005.
21 Order of Court, March 11,2005.
22 Order of Court, March 11,2005.
23 Order of Court, March 30, 2005.
24 Order of Court, March 30, 2005.
25 Response of Barbara McK. Mumma and Lisa M. Morgan to Req~est of Robert M. Mumma, II
for a Jury Trial Pursuant to 20 Pa. C.S. ~777(a), filed April 8,2005, at 2.
26 Response of Barbara McK. Mumma and Lisa M. Morgan to Req1jlest of Robert M. Mumma, II
for a Jury Trial Pursuant to 20 Pa. C.S. ~777(a), filed April 8, 2005, ht 2.
27 Order of Court, April 21, 2005.
28 Notice of Appeal, filed May 19,2005.
29 Order of Court, March 7, 2006 (No. 856 MDA 2005).
8
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. Green, Esqui , Michael J. Riffitts,
Esquire, and Ivo V. Otto, III, Esquire, represented Barbar McK. Mumma and
Lisa M. Morgan, Ralph A. Jacobs, Esquire, represented B bara 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 Interroga.ories 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, Thi~ Set of Requests for
Production of Documents to the Executrixes/Trustees, and tlJat 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.30
Shortly thereafter, Robert M. Mumma, II, filed a "Motion To Compel
Inspection of All Books and Records.,,31 As had been done with his earlier
discovery motion, this matter was referred to the auditot in the first instance for
purposes of proposing a recommended order.32 This order, dated April 29, 2005
(docketed April 29, 2005), referring the motion to the auditor for review, was
appealed by Robert M. Mumma, 11,33 and was subsequently affirmed by the
Pennsylvania Superior Court.34
Meanwhile, Robert M. Mumma, II, filed a "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," on April 20, 2005.35 By order of court dated April 22,
30 Order of Court, April 4, 2005.
31 Motion To Compel Inspection of All Books and Records, filed April 22, 2005.
32 Order of Court, April 29, 2005.
33 Notice of Appeal, filed May 19, 2005.
34 Order of Court, March 7, 2006 (No. 856 MDA 2005).
35 Request for Order That Estate Has Waived Its Right To Co~test a Disclaimer Filed and
Revoked or, Alternatively, Request for Immediate Hearing To Detetjrnine Whether the Estate Has
Waived Its Right, filed April 20, 2005. .
9
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2005, this question was included among the issues to be rtviewed by the auditor in
the course of his duties relating to the objections to the aCj! ounts.36
On April 27, 2005, Robert M. Mumma, II, filed "Motion for Recusal of
Judge Due to Appearance of Impropriety.,,37 Follow,ng a hearing, the court
denied the motion for recusal. 38 Robert M. Mumma, II, ,filed an appeal from the
order of the court denying his recusal motion on Septem.ber 15, 2005,39 and this
interlocutory appeal was subsequently quashed by the Pennsylvania Superior
Court.40
On February 14, 2006, Robert M. Mumma, II, filed a "Praecipe To Attach
Deed and Index As Lis Pendens.,,41 The property td which the lis pendens
pertained was the same property as to which Robert M. Mumma, II, had, in at least
three other lawsuits in which he was plaintiff, sought uQsuccessfully to affect by
filing lis pendens notices.42 The property was situated in! Silver Spring Township,
Cumberland County, Pennsylvania, and had been sold by decedent and others in
1961 to a Pennsylvania corporation known as Pennsy Supply Inc.43
On May 5, 2006, a motion to strike the lis pendens was filed herein by the
executrices of the decedent's estate.44 The motion to strike noted, inter alia, that
"[t]he property referenced in the Deed attached to Robert M. Mumma, II's lis
36 Order of Court, filed April 22, 2005.
37 Motion for Recusal of Judge Due to Appearance of Impropriety, filed April 27, 2005.
38 Order of Court, August 29,2005.
39 Notice of Appeal, filed September 15, 2005.
40 Order of Court, October 28, 2005 (No. 1546 MDA 2005).
41 Praecipe To Attach Deed and Index As Lis Pendens, filed February 14,2006.
42 Estate of Robert M. Mumma's Motion To Strike Lis Pendens, para.9, filed May 5, 2006;
Robert M. Mumma, II, Exhibit 1, Hearing, August 31, 2006 (answer to motion to strike lis
pendens, para. 9 admitted). See Mann Realty Associates v. Pennsy Supply, Inc., 05-655 Civil
Term (Ct. Com. PI. Cumberland 2005); Mumma v. eRR, Inc., 99-1~46 Civil Term (Ct. Com. PI.
Cumberland 1999); Mumma v. Pennsy Supply, Inc., 2765 Equity 19P9 (Ct. Com. PI. Cumberland
1999).
43 Praecipe To Attach Deed and Index As Lis Pendens, filed Februa~ 14,2006.
44 Estate of Robert M. Mumma's Motion To Strike Lis Pendens, file~ May 5, 2006.
10
pendens bears absolutely no relationship to the issues inv~lved in this litigation.,,45
In his answer to the motion to strike, Robert M. Mum~a, II, asserted that the
estate had "inventoryed [sic] assets owned by Robert ~. Mumma, 11[,] and not
[his father, the decedent, Robert M. Mumma].,,46 i
A hearing on the motion to strike the lis pendens ~as held by this court on
August 31, 2006. At the hearing, Robert M. Mumma, II, ~ntroduced, inter alia, the
deed which had been attached to his lis pendens prae~ipe.47 This 1961 deed
transferred title to the property in question from the dece~ent, the father of Robert
M. Mumma, II, and others, to a corporation known as Pennsy Supply Inc.;48
"[t]here are no deeds of record transferring that property to any other entity or
person," according to Robert M. Mumma, 11.49 Since its receipt of title to the
property, Pennsy Supply Inc., has subdivided the property and sold lots off it,
Robert M. Mumma, II, stated. 50
At the conclusion of the hearing, counsel for the estate argued that
MR. FALLER: . . . [T]he one thing: that was admitted
is [that] Mr. Mumma has filed the lis pendens aga.nst this piece of
property three times in the past, and Your Honor has stricken it all three
times.
There is no basis to file the lis pendens
because there is no claim, there has been no quiet title action, anything of
that nature filed against this property. . . .51
Mr. Mumma's argument, which included a number of allegations not
supported by evidence at the hearing, was as follows:
45 Estate of Robert M. Mumma's Motion To Strike Lis Pendens, para. 7, filed May 5, 2006.
46 Robert M. Mumma, II, Exhibit 1, Hearing, August 31, 2006 (ahswer to motion to strike lis
pendens ).
47 Robert M. Mumma, II, Exhibit 3, Hearing, August 31, 2006) (de~ from Robert M. Mumma et
al. to Pennsy Supply Inc., dated August 9, 1961). .
48 Robert M. Mumma, II, Exhibit 3, Hearing, August 31, 2006 (deed from Robert M. Mumma et
at. to Pennsylvania Supply Inc., dated August 9,1961). i
49N.T. 14, Hearing, August 31,2006.
I
50 N.T. 19, Robert M. Mumma, II, Exhibit 1, Hearing, August 31, 2006 (answer to motion to
strike lis pendens).
11
I
MR. MUMMA: . . . There is an underlyin dispute here, it
revolves around the estate and what did my father own. e clearly did not
own Pennsy Supply or this quarry. So the es te through their
[ machination] of the records and stealing the real recor s from the safety
deposit box, have allowed people to believe that this uarry was really
owned by a company named Pennsy Supply, Inc., whic is a derivative of
a company called 1001 formed in October 9th of 1981.
As you can see from the deeds that I
provided, the transfer was clearly from Highspire S~lDd [a]nd Gravel
through the liquidating trustees to a Pennsylvania Supply Company
according to the bank's records and a Pennsy Supply Inci., according to the
deed that was filed. Why that discrepancy? I don't know. But it is clearly
Pennsylvania Supply Inc., formed in November of 1958 as Fiala Crushed
Stone.
So now we have two different parties
claiming title to the same piece of property. It is clear that the only deed
that has any documentary stamps on it is the original. There is no other
deed from that company to any other company.
In the year 2000, after I filed a lawsuit in
your court challenging-with my stock certificate, challenging the
ownership of the stock, Mr. Ernico on behalf of Pennsy Supply, Inc., files
a corrective deed and-
THE COURT: We are getting into a lot of things that I don't
know if they are of record or not. You are welcome to argue what you
like, but the only things I can take into consideration in disposing of this
motion is what is on the record in this case and whatever has been
presented at this hearing;
You are welcome to argue, as you like, but I
am just saying that I am limited to the record that exists in the case.
MR. MUMMA: I am satisfied with that record, because there
is nothing in that record that indicates that anybody other than the
beneficiary of my grandfather's estate owned that property.
In 1963, the benefieiaries of my
grandfather's estate did own the property. There is nothing that has
happened, nothing that has transpired anywhere to take that away from us,
other than fraudulent actions when they put it into the estate and then the
estate sold it to a third party. That is why I am challengit)g the estate. . . .52
Following argument on the issue of whether the lis pendens filed by Robert
M. Mumma, II, in this case should be stricken, the court took the matter under
51 N.T. 21, Hearing, August 31,2006.
52 N.T. 22-23, Hearing, August 31,2006.
12
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advisement.s3 On September 5, 2006, the court issued the order striking the lis
IS4
pendens, from which Robert M. Mumma, II, has appealedl.
DISCUSSION I
I
Interlocutory appeals. "[T]he general rule [is] tha~ interlocutory orders are
not [immediately] appealable. . .." Jones v. Trojak, 535 Pa. 95, 103, 634 A.2d
201,205 (1993); see T.C.R. 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, 124, 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.C.R. Realty, Inc., 472 Pa.
at 337, 372 A.2d at 724). "The final, appealable order in a decedent's estate
generally is the confirmation of the personal representative's final account."
Estate of Robert M Mumma, No. 1546 MDA 2005 (Pa. Super. Ct. Oct. 28, 2005);
see In re Estate of Borkowski, 2002 PA Super. 57, ~9, 794 A.2d 388, 390; In re
Estate of Me in inger, 367 Pa. Super. 105,532 A.2d 475 (1987).
An order striking a lis pendens in the course of liti~ation
fixes neither rights, duties, nor liabilities between the p~ies, puts no one
out of court, and does not terminate the underlying litiga~ion by prohibiting
S3 Order of Court, August 31, 2006.
S4 Order of Court, September 5, 2006.
13
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parties from proceeding with the action. Accordin ly, the requisite
"finality" is not present when a lis pendens is lift d and the order,
therefore, is interlocutory.
United States Nat'! Bank v. Johnson, 506 Pa. 622, 62 -28, 487 A.2d 809, 812
(1985). Thus, as a general rule an immediate appeal "1ill not lie from an order
striking a lis pendens. Flitter v. Chandor, 364 Pa. Super. 252, 254, 527 A.2d
1050,1051 (1987).
The case of Janus Management Services, Inc. v~ Schlessinger, 2002 P A
Super. 312, 810 A.2d 637, cited in the statement of niatters complained of on
appeal by Robert M. Mumma, II, holds that a third party "Fho purchases real estate
following its release pursuant to an order of the court f~om a lis pendens can be
considered a good faith purchaser for value, notwith$tanding the purchaser's
awareness of the pending litigation. It does not stand f~r the proposition that an
i
order striking a lis pendens is an immediately appealablei order, and in that regard
in no way conflicts with the holding of the Pennsylvania Supreme Court in United
States Nat'! Bank v. Johnson, 506 Pa. 622,487 A.2d 809 (1985).
Lis pendens. Although not addressed in the statement of matters
complained of on appeal of Robert M. Mumma, II, the 'underlying merits of the
court's order striking the lis pendens will be briefly discu~sed herein.
The lis pendens doctrine, and the discretion of th~ court with respect to its
application in a given case, has been discussed by the Pennsylvania Superior Court
as follows:
Lis pendens is based in common law and equity ju~isprudence, rather
than in statute, and is wholly subject to equitable prihciples. . . . If the
operation of the doctrine should prove to be harsh or arb~trary in particular
instances, equity can and should refuse to give it eff~ct, and, under its
power to remove a cloud on title, can and should canfel a notice of lis
pendens which might otherwise exist. . .. Thus, the Ilower court must
balance the equities to determine whether the applicatiOll of the doctrine is
harsh or arbitrary and whether the cancellation of the ~is pendens would
result in prejudice to the non-petitioning party. i
Rosen v. Rittenhouse Towers, 334 Pa. Super. 124, 129-~0, 482 A.2d 1113, 1116
(1984 ) (citations omitted).
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In the present case, the argument that title to real property in Silver Spring
I
Township as to which Robert M. Mumma, II, filed a lis Pfndens was the subject of
a plausible objection which he made to the executrice~' account in the above-
captioned case was, at best, unpersuasive, on the basis of evidence presented at the
hearing on the estate's motion to strike the lis pendens. Por this reason, the court
concluded that the lis pendens should be stricken.
Conclusion. For the foregoing reasons, it is believed that the appeal to the
Superior Court from this court's order striking the lis !pendens on property in
Silver Spring Township, Cumberland County, Pennsylvapia, is subject to quashal
on interlocutory grounds and, substantively, without meri~.
BY THE COURT,
r
Taylor P. Andrews, Esq.
78 West Pomfret Street
Carlisle, PA 17013
Auditor
Robert M. Mumma, II, pro Se
P.O. Box 58
Bowmansdale, P A 17008
Robert M. Mumma, II, pro Se
6880 South East Harbor Circle
Stuart, FL 34996
George B. Faller, Jr., Esq.
10 East High Street
Carlisle, P A 17013
Attorney for the Estate
15
ORPHANS' CURT DIVISION
COURT OF C MON PLEAS OF
In Re: THE EST A TE OF ROBERT M. MUMMA,
DECEASED
CUMBERLAN COUNTY
PENNSYL V A IA
NO. 21-1986-03198
CERTIFICATE OF SERVICE OF ORD~R
ORDER DATE:
11/08/06
JUDGE'S INITIALS:
JWO
~~~~:,P, ~~ ~~:,,' ,,~~,~~~6P:~:~ ~~, ~~: ~:~:~'"l,~~,~,,,,,,,,,,, J"",,, "'" ",,"" "
SERVICE TO:
TAYLOR ANDREWS. ESO. I
ROBERT M. MUMMA. II - BOWMANSDALE PA ROBER1 M. MUMMA. II - STUART FL
GEORGE B. FALLER. JR. ESO. I
METHOD OF MAILING:
ENVELOPES P OVID ED BY:
~ USPS
DRRR
o HAND DELIVERED
o OTHER_
o PETITIONE
~ JUDGE I
o CLERK OF <DRPHANS COURT
MAILED: 11-13-2006
""""""""",.............................,..............,...........,....,... ,.............., .1..........,.........,.
SERVICE TO: I
i
ENVELOPES ptOVIDED BY:
o PETITIONEl
o JUDGE
o CLERK OF ~RPHANS COURT
I
I
!
METHOD OF MAILING:
o USPS
DRRR
o HAND DELIVERED
o OTHER_
MAILED: