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HomeMy WebLinkAbout21-1986-398 Orphans'IN RE: ESTATE OF : IN THE COURT OF COMMON PLEAS OF ROBERT M. MUMMA : CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION NO. 21-86-398 ORPHANS' COURT IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Oler, J., December 8, 2008. In this decedent's estate case dating back to 1986, a pro se litigant, who formerly disclaimed his interest in the estate,' has filed another in a series of interlocutory appeals2 to the Pennsylvania Superior Court ,3 this one being from an order4 denying his third motion for recusal of the undersigned judge .5 The appeal has been taken without securing an amendment to the order pursuant to Section 702(b) of the Judicial Code ,6 and with the full awareness on the part of the ' See Disclaimer of Robert M. Mumma, II, filed January 12, 1987. Whether Appellant's purported revocation of this disclaimer remains legally challengeable by other parties is one of the many issues pending before a court-appointed auditor in the case. See In re: Estate of Robert M. Mumma, No. 856 MDA 2005 (Pennsylvania Superior Court) (slip op. March 7, 2006, at 9 n.1) (non -precedential memorandum decision). 2 As a general rule, the final, appealable order in a decedent's estate is the confirmation of the personal representative's final account. See Estate of Borkowski, 2002 PA Super 57, 794 A.2d 388 (quashing appeal from order directing co-executors to amend their accounting); Estate of Meininger, 532 A.2d 475, 367 A.2d 105 (1987) (dismissing appeal from order that dismissed objections to the executor's account but did not confirm the account). s See, e.g., Notice of Appeal, filed September 15, 2005 (appeal quashed by Superior Court by order dated October 28, 2005, at No. 1546 MDA 2005); Notice of Appeal, filed May 19, 2005 (appeal quashed by Superior Court by order dated January 4, 2007 at No. 1756 MDA 2006). 4 Order of Court, September 19, 2008. A motion to reconsider this order filed by Appellant herein was denied. Order of Court, October 3, 2008. 'Notice of Appeal, filed October 17, 2008. Act of July 9, 1976, P.L. 586, §2, as amended, 42 Pa. C.S. §702(b) (interlocutory orders appealable by permission pursuant to certification by lower court that order involves controlling question of law as to which substantial ground for difference of opinion exists and immediate appeal might materially advance ultimate termination of matter). Appellant's application to amend the order in accordance with this section of the Judicial Code was filed almost simultaneously with the filing of his notice of appeal from the order. Compare In re: Application of Robert M. Mumma, II To Amend Order of September 19, 2008 To Certify for Purposes of Taking an Interlocutory Appeal under 42 Pa. C.S.A. §702(b) (filed October 17, 2008, at 3:10 p.m.) with Notice of Appeal (filed October 17, 2008, at 3:32 p.m.). The application for litigious Appellant, based upon prior appeals from interlocutory orders,' that such orders are subject to quashal.9 In this estate in which a multiplicity of petitions, motions and issues, including appellant's most recent objections to actions of executrices/trustees filed this year,10 have been assigned to an auditor, the docket now extends to more than 30 pages. Appellant's "concise" statement of matters complained of on appeal extends to eight pages," and reads as follows: AND NOW, pursuant to Pa.R.A.P. 1925(b) and the Order of this Court dated October 27, 2008, comes Robert M. Mumma, II, pro se, who hereby presents this Concise Statement of matters Complained of On Appeal: For purposes of Pa.R.A.P. 1925(b)(4)(vi), the undersigned hereby prefaces this rule 1925(b) Statement by noting that those errors complained of as described in general terms herein have been so identified in general terms to the extent that parties are unable to readily discern the basis for the judge's decision and rulings, which is even more so since no discursive opinion was issued by the judge; In support of the instant Statement of Matters Complained of On Appeal the undersigned states as follows: 1. Judge Oler's Orders of September 19, 2008 and October 3, 2008 constitute errors of law and abuses of discretion as same suggest the Judge did not undertake an adequate and comprehensive review and analysis of amendment was denied. Order of Court, October 27, 2008. The court is unaware of the filing of any petition for review of this order denying amendment. See Pa. R.A.P. 3111, Note. See, e.g., Mumma v. The Estate of Robert M. Mumma, 04-6183 Civil Term (Ct. Com. Pl. Cumberland 2004); Mumma v. CRH, Inc., 99-1546 Civil Term (Ct. Com. Pl. Cumberland 1999); Mumma v. Pennsy Supply, Inc., 2765 Equity 1999 (Ct. Com. Pl. Cumberland 1999); Mumma v. G A -T Distribution Corp., 94-0423 Civil Term (Ct. Com. Pl. Cumberland 1994); Mumma v. Nine Ninety -Nine, Inc., 14 Equity 1990 (Ct. Com. Pl. Cumberland 1990); Mumma v. Mumma, 84 Equity 1990 (Ct. Com. Pl. Cumberland 1990); Mumma v. Mumma, 66 Equity 1988 (Ct. Com. Pl. Cumberland 1988). 'See n.3, supra. 9 See Order of Court, October 28, 2005, In re: Estate ofRobertM. Mumma, No. 1546 MDA 2005 (Pa. Superior Court) (quashal of prior appeal by Appellant from denial of motion to recuse undersigned judge). In this order, the Superior Court expressly advised Appellant that "[a]n order denying a motion for recusal is interlocutory and not appealable." Id. 10 Supplemental Objections, filed January 31, 2008. " Whether this document comports with Pennsylvania Rule of Appellate Procedure 1925(b) is beyond the scope of this opinion. But see Tucker v. R.M. Tours, 2007 PA Super 352, 939 A.2d 343; Kanter v. Epstein, 2004 PA Super 470, 866 A.2d 394. 2 the record, the factual issues, and the legal issues as denoted by the fact that the Orders were but a few sentences or paragraphs in length, and, most importantly, said Orders were not accompanied by any discursive opinion(s) which tangibly set forth the logical and analytical explanations as to why the Judge arrived at his decision(s). 2. Likewise, Judge Oler's Order of September 19, 2008 constitutes an error of law and an abuse of discretion as it reveals the Judge did not undertake an adequate and comprehensive review and analysis of the specific issues raised in the briefs filed subsequent to the August 18, 2008 proceedings, all issues requiring a judicial examination by the court which reveals the logical and analytical explanations as to why the judge issued his decision. 3. Judge Oler committed an error of law and an abuse of discretion by the continuation of his longstanding practice in this case of referring matters to an auditor which exceed the scope of the auditor's original appointment. To wit, the auditor was originally appointed when the Executrices filed a Petition for Appointment of Auditor on January 5, 2005, "to pass upon the objections" that had been filed by the undersigned which the Executrices averred had "raise[d] questions of fact". Subsequently, Judge Oler has used the Auditor's appointment has a repository for referrals of virtually every matter filed with the court inclusive of motions, requests, petitions, and preliminary objections which raise a panoply of questions of law (as opposed to the aforesaid questions of fact raised by objections to the account). 4. Specifically, Judge Oler committed an error of law and an abuse of discretion by the continuation of his longstanding practice in this case of referring matters to an auditor which exceed the scope of the auditor's original appointment including court filings related to the removal of the Executrices/Trustee, the Estate's waiver to contest a validly revoked disclaimer, the right to a jury trial, and the deemed denial of exceptions pursuant to Pa. O.C.R. 7.1(f). 5. Judge Oler committed an error of law and an abuse of discretion by the continuation of his longstanding practice in this case of referring matters to an auditor which exceed the scope of the auditor's original appointment as evidenced by the recent appointment of Attorney Buckley as the replacement auditor wherein Judge Oler has again referred matters to the Auditor "for inclusion in the issues assigned to him" as reflected by his Order dated September 22, 2008 regarding a filing by Barbara Mann Mumma (those issues assigned to Attorney Buckley include the "deemed referral" of all prior matters previously assigned to Attorney Andrews as evidenced by Paragraph 44 of the September 19, 2008 Order). 6. Judge Oler's aforesaid practice constitutes an error of law and an abuse of discretion by not following the local rules with respect to the scope of an auditor's appointment regarding the disposition of matters which raise questions of law. See, Local Rule 6.10-2(a), Rules of the Court of Common Pleas, Orphans' Court division. 3 7. Judge Oler's aforesaid practice constitutes an error of law and an abuse of discretion by not following 20 Pa. C. S. §751(1) which limits the court's power to appoint Masters to investigate issues of fact. 8. Judge Oler committed an error of law and an abuse of discretion by refusing to recuse or disqualify himself inasmuch as he alone was responsible for the prompt disposition of the business of the court as the Orphans' Court judge who remained accountable for the stewardship of the Estate case, yet matters brought before the Orphans' Court in this case have languished for months and years since the original appointment of the auditor in January 2005. (See, Further Motion for Recusal of Judge Oler filed on May 30, 2008; Further Motion for Vacation of Appointment of Attorney Andrews as Auditor filed on May 30, 2008; Brief in Support of Recusal Motion filed September 2, 2008; Motion for Reconsideration of Order Dated September 19, 2008 filed on September 29, 2008; Application to Amend Order of September 29, 2008 to Certify for Purposes of Taking an Interlocutory Appeal Under 42 Pa. C.S.A. §702(b), said filings being incorporated herein). 9. Judge Oler committed an error of law and an abuse of discretion by refusing to recuse or disqualify himself in light of Canon 3A(5) of the Code of Judicial Conduct which provides that judges should dispose promptly of the business of the court. 10. Judge Oler committed an error of law and an abuse of discretion by not undertaking appropriate measures to investigate why no interim reports or recommended orders were forthcoming from the auditor whom he appointed notwithstanding the fact that 19 separate matters were referred by Judge Oler to the Auditor for those specific purposes between January 2005 and the August 18, 2008 proceedings, with the culmination of such inactivity of the Auditor and the concomitant inactivity of Judge Oler resulting in the vacation of the auditor's appointment. 11. Judge Oler committed an error of law and an abuse of discretion by not undertaking appropriate measures to investigate why Attorney Andrews failed to schedule any pre -hearing conferences in this case following the sole pre -hearing conference held by said Auditor in October 2006, much less the failure to schedule an actual Auditor's hearing designed to resolve those matters which were entrusted to the Auditor by the Orphans' Court. 12. Judge Oler committed an error of law and an abuse of discretion by refusing to recuse or disqualify himself in light of Canon 3B(1) of the Code of Judicial Conduct which provides that the judges should diligently discharge their administrative responsibilities, maintain professional competence in judicial administration, and facilitate the performance of the administrative responsibilities of court officials. 13. Judge Oler committed an error of law and an abuse of discretion by refusing to recuse or disqualify himself in light of the appearance of impropriety resulting from the familial and employment relationships between himself and (i) Martson, Lewis & Bockius, (ii) The Martson Law Office, and/or (iii) Attorney Andrews. 11 14. Judge Oler committed an error of law and an abuse of discretion by not recusing himself from further participation in these proceedings after he had previously recused himself at the conclusion of the April 18, 2005 hearing in light of a disqualifying relationship between himself and Morgan, Lewis & Bockius, wherein at that time he had directed the Court Administrator to transfer the matter to another judge of this court. 15. Judge Oler committed an error of law and an abuse of discretion by refusing to recuse or disqualify himself after listening to Attorney Martson testify at the hearing on August 18, 2008 whereupon Judge Oler acknowledged that Mr. Martson either had been a material witness in this case (given his execution of an affidavit in lieu of attending a deposition in April 2004) or that Mr. Martson would be called again as a material witness in this case during future proceedings ( most likely with respect to the disclaimer issues). 16. Judge Oler committed an error of law and an abuse of discretion by refusing to recuse or disqualify himself in light of Attorney Martson's testimony under Canon3C(1)(b) of the Code of Judicial Conduct which mandates his recusal or disqualification as judge in these proceedings by virtue of said Canon's "such lawyer has been a material witness" provision. 17. Judge Oler committed an error of law and an abuse of discretion by refusing to recuse or disqualify himself after listening to Attorney Andrews testify at the hearing on August 18, 2008 whereupon it was acknowledged that the judge had practiced law with Attorney Andrews in the Public Defender's Office. 18. Judge Oler committed an error of law and an abuse of discretion by refusing to recuse or disqualify himself in light of Attorney Andrews's testimony under Canon 3C(1)(b) of the Code of Judicial Conduct which mandates his recusal or disqualification as judge in these proceedings by virtue of said Canon's "such lawyer has been a material witness" provision. 19. Judge Oler committed an error of law and an abuse of discretion by not recusing himself from further participation in these proceedings after he had previously recused himself from another matter involving the undersigned in January 1997 because a deposition exhibit contained a reference to a discussion the Judge had with another litigant in that case about legal research being done, said discussion occurring before Judge Oler was elected to the bench. See, Exhibit 3 — August 18, 2008 hearing (copy of pre-trial conference order from proceedings held on January 2, 1997). 20. Judge Oler committed an error of law and an abuse of discretion by refusing to recuse or disqualify himself in light of the evidence of record which reflects the decisional law's requisite "cumulative effect" of assignments of instances where the appearance of impropriety might reasonably be questioned, combined with the discernible violations of the aforesaid Canons of the Code of Judicial Conduct. E 21. Judge Oler committed an error of law and an abuse of discretion in his Order of September 19, 2008 by authorizing Attorney Andrews to submit a bill "for his services to date" inasmuch as there can be no reasonable justification to permit a vacated Auditor to submit a bill for services he performed when the Auditor himself testified as to the inadequacies and failure of the auditor proceedings for which he was responsible in the first instance, and such an auditor should not be compensated as a court official under the Code of Judicial Conduct inasmuch as he admittedly neglected to perform, or failed to perform timely, his court-appointed duties. 22. Judge Oler committed an error of law and an abuse of discretion by refusing to have the issue of his recusal or disqualification of as the Orphans' Court judge in this case to be heard and/or assigned for disposition by the court en bane, especially in light of the fact that Judge Oler has twice refused to do so of his own accord, and since the evidence of record reflects the requisite "cumulative effect" of assignments of instances where the appearance of impropriety might reasonably be questioned along with discernible violations of several Canons of the Code of Judicial Conduct. 23. Judge Oler's practices constitute an error of law and an abuse of discretion to the extent that the court's supervision of the administration of this Estate (and the manner in which the court's acts and/or omissions have enabled the Executrices/Trustees, Morgan, Lewis & Bockius, and/or The Martson Law Office to utilize the court and the court system) manifests violations of the due process of law and unconstitutional deprivations of the property interests of the beneficiaries. 12 This opinion in support of the order of court denying Appellant's most recent motion to recuse the undersigned judge is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS The decedent in this case, Robert M. Mumma, died on April 12, 1986,13 and his estate was opened later that year. 14 The history of the estate has been related in the contexts of prior appeals by Appellant to the Superior Court in opinions by the undersigned judge dated July 15, 2005, November 4, 2005, and 12 Robert M. Mumma, II's Concise Statement of Matters Complained of on Appeal Pursuant to Pa.R.A.P. 1925(b), filed November 17, 2008 (footnote omitted). " See Entry into Safe Deposit Box To Remove a Will or Cemetery Deed, filed April 24, 2006. 14 See Docket, In re: Estate ofRobert M. Mumma, No. 21-86-398 (Orphans' Court Cumberland County) 0 November 8, 2006; copies of the historical parts of these opinions are attached hereto in the interest of avoiding a duplication of effort by the court. A hearing on Appellant's most recent motion for recusal of the court was held on August 18, 2008. At the hearing, which consumed the better part of a day, Appellant succeeded in supplementing the record established on his second motion to recuse, which was the subject of a quashed interlocutory appeal,15 with two additional facts: the undersigned judge had been employed in the late 1970s by a predecessor to one of the law firms now representing the decedent's estate 16 and the court-appointed auditor had become stymied by the multiplicity of filings and logistical difficulties associated with the case. 17 At Appellant's request," and without objection of the auditor,19 the court vacated the appointment of the auditor and appointed Joseph D. Buckley, Esq., " Order of Court, March 7, 2006, Pennsylvania Superior Court, In re: Estate of Robert M. Mumma, No. 1546 MDA 2005. 16 N.T. 10-11, 14-15, 19, Hearing, August 18, 2008. 17 N.T. 34-115. An example of the frustrations encountered by the auditor is contained in the following excerpt from his testimony at the hearing: We sent out multiple proposed dates [for a certain conference] to counsel and [Appellant]. It was difficult communicating with [Appellant]. At the time we sent that out, we got word—it was indicated that the fax number we were using to try and communicate with [Appellant] was not working. We got responses from I think everyone but [Appellant]. I went ahead and picked a date to schedule it on the expectation that [Appellant] would be available and sent out a notice of a specific date for that conference, and at that time I heard that [Appellant] was conflicted. So we could not proceed on the date that we had scheduled. It was scheduled again in March, I believe it was, and I don't recall, but it occurs to me that there was a conflict on that occasion as well. The conference did not occur. N.T. 104-05, Hearing, August 18, 2008. " Further Motion for Vacation of Appointment of [the Court -Appointed Auditor] As Auditor Pursuant to Orphans' Court Order of October 3, 2007, filed May 30, 2008. 19 See N.T. 110, 114, Hearing, August 18, 2008. 7 auditor in his stead. 20 However, the court refused Appellant's request that it recuse itself from the case.21 From the portion of the order denying the request for recusal, Appellant filed a notice of appeal on October 17, 2008. DISCUSSION Statement of law. "An order denying a motion for recusal is interlocutory and not appealable." Order of Court, October 28, 2005, In re: Estate of Robert M. Mumma, No. 1546 MDA 2005 (Pennsylvania Superior Court) (quashal of earlier appeal by Appellant from denial of recusal motion); see Krieg v. Krieg, 743 A.2d 509 (Pa. Super. Ct. 1999). "It is the burden of the party requesting recusal to produce evidence establishing bias, prejudice or unfairness which raises a substantial doubt as to the jurist's ability to preside impartially." Commonwealth 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 outcome. 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. Id. (citations omitted). Application of law to facts. In the present case, the court granted Appellant's request that a new auditor be appointed. Given that the decedent's death in this case occurred in 1986, the additional fact as to the undersigned judge's employment by a law firm in the decade preceding his death did not seem of sufficient consequence to afford the court an opportunity to withdraw from the case. 20 Order of Court, September 19, 2008. 21 Order of Court, September 19, 2008. '3 Joseph D. Buckley, Esq. 1237 Holly Pike Carlisle, PA 17013 Auditor Robert M. Mumma, 11 Box F Grantham, PA 17027 Robert M. Mumma, 11 6880 S.E. Harbor Circle Stuart, FL 34996 Robert M. Mumma, 11 840 Market Street Suite 164 Lemoyne, PA 17043 George B. Faller, Jr., Esq. 10 East High Street Carlisle, PA 17013 Brady L. Green, Esq. Morgan, Lewis & Bockius, LLP 1701 Market Street Philadelphia, PA 19103-2921 Linda Mumma Roth P.O. Box 480 Mechanicsburg, PA 17055 Ralph A. Jacobs, Esq. 1515 Market Street Suite 705 Philadelphia, PA 19102 0 BY THE COURT, J. Wesley Oler, Jr., J.