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., July 15, 2005.
In this Orphans’ Court case, in which objections to accounts are presently
subject to court-appointed auditor proceedings, a pro se litigant, Robert M.
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Mumma, II, has appealed from interlocutory orders of this court without securing
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the certification provided for under Section 702(b) of the Judicial Code.
The Notice of Appeal states as follows:
Notice is hereby given that Robert M. Mumma II, a
beneficiary of the Estate of Robert M. Mumma, hereby appeals to
the Superior Court of Pennsylvania from the orders entered in this
matter on April 25, 2005 and April 29, 2005. These orders have
been entered in the docket as evidenced by the attached copy of the
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docket entry.
The grounds for the appeal have been expressed in a statement of matters
complained of on appeal as follows:
1. The Court erred in denying Robert M. Mumma II, a beneficiary
and party in interest, the right to have a jury trial to resolve a
substantial dispute of fact concerning the decedent’s title to
property, real or personal.
2. Whether the Court has the authority to Order Discovery issues to
be determined by the Auditor.
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., 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. Nine Ninety-Nine, Inc., 15 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).
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Act of July 9, 1976, P.L. 586, §2, as amended, 42 Pa. C.S. §702(b).
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Notice of Appeal, filed May 19, 2005.
3. Whether the Court erred in appointing an Auditor while Discovery
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is still outstanding and before all objections have been filed.
This opinion in support of the orders 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 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 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
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been fully litigated. . . .
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Concise Statement of Matters Complained of on Appeal, filed June 10, 2005.
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In re Estate of Robert M. Mumma, No. 21-86-398, slip op. at 1-3 (Ct. Com. Pl. Cumberland
February 23, 2000) (Hoffer, P.J.) (citations omitted).
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This position of the executrices/trustees was rejected by the court, and an
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accounting by the executrices/trustees was ordered on February 23, 2000.
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 for
injunctions, motions to compel discovery, etc., were filed.
Among these filings was a motion entitled “Objector’s Motion To Compel
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Discovery,” submitted by Robert M. Mumma, II, on December 21, 2004. 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
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WILL THE WILL [sic] OF ROBERT M. MUMMA, DECEASED
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
6
In re Estate of Robert M. Mumma, No. 21-86-398 (Ct. Com. Pl. Cumberland February 23, 2000)
(Hoffer, P.J.), appeal quashed, 776 A.2d 300 (2001) (table decision).
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Objector’s Motion To Compel Discovery, filed December 21, 2004.
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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 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.
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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
Improper Accounting for Fulton Bank Building in Lemoyne, PA
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
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Objections Based on Receipts of Principal
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
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Acts of Corporate Self-Dealing
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This and the objections which follow were contained in an earlier filing of objections.
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The section of the objections referencing “overfunding” read as follows:
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) $16,645,786.00
½ of Total Gross Fed Estate $8,322,893.00
Less: Schedule M Spousal
Joint & Other Property
Passing Outside Probate (861,018.00)
Total Amount Which Should
Have Been Awarded to
Marital Trust 7,461,875.00
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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 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. Mumma,
Deceased, filed May 27, 2004.
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C.) Under the Account as filed, the following principal
amounts were actually distributed to the Marital Trust (See
Exhibit “B” attached hereto):
1986 – 1987 (Vol 1, 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
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 (7,461,875.00)
Marital Trust Overfunded by: 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
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Objector’s other objections set forth below.
In an attempt to bring this matter, which commenced in 1986, under
control, the undersigned judge appointed an auditor in the person of the
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distinguished Cumberland County attorney Taylor P. Andrews, Esq. The order
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appointing Mr. Andrews was dated January 6, 2005.
Within several weeks of the appointment, Robert M. Mumma, II, filed a
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motion to have the auditor replaced. Following a hearing on March 11, 2005, at
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Id., at 2-4.
12
Order of Court, January 6, 2005.
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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 be litigated. Orders of Court,
March 11, 2005, April 22, 2005.
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Motion To Recuse/Remove Attorney Taylor P. Andrews and To Appoint a New Auditor, filed
January 31, 2005.
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which a record was made on this motion, it was denied as devoid of merit. An
oral motion made at this proceeding by Robert M. Mumma, II, that the court also
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recuse itself from further participation in the case was similarly denied. Another
oral motion made at the proceeding by Robert M. Mumma, II – for a jury trial –
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was also denied. Another oral motion made by Robert M. Mumma, II, at the
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proceeding – for a stay pending completion of discovery – was also denied, and a
formal motion to this effect was later denied by order dated March 30, 2005
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(docketed March 31, 2005).
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).” The
motion read, in its entirety, as follows:
AND NOW, comes the Petitioner, Robert M. Mumma, pro se, and files
the within Request for a jury trial on objections to the inventory and accounting
in the above-noted Estate and in support thereof avers the following:
1. Petitioner is Robert M. Mumma, an adult individual,
acting pro se.
2. Petitioner is an heir to the Estate of his late father,
Robert M. Mumma, and as such is a party in interest to the
estate.
3. Petitioner avers that a substantial dispute exists as to
the ownership of certain assets listed in the Estate’s inventory
and accounting.
4. Specifically, Petitioner believes that the Estate has
inventoried assets that were never owned by his father and
therefore should not have become part of his estate.
5. Petitioner has filed objections to the account filed by
the Estate and the Court has yet to hear those objections.
15
Order of Court, March 11, 2005.
16
Order of Court, March 11, 2005. A subsequent motion for recusal of the court filed by Robert
M. Mumma, II, has been made the subject of a hearing scheduled for August 29, 2005. Order of
Court, June 30, 2005.
17
Order of Court, March 11, 2005.
18
Order of Court, March 11, 2005.
19
Order of Court, March 30, 2005.
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6. Pursuant to the Probate, Estate and Fiduciary (PEF)
Code, Section 777(a), the Petitioner is entitled to a jury trial
regarding the ownership of certain assets of the Estate.
WHEREFORE, Petitioner respectfully requests that the
Court order a jury trial on his objections as to matters of
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ownership of certain assets in the Estate.
21
A rule was issued on the request for a jury trial on March 30, 2005, and a
response to the request was filed by Decedent’s widow and Mrs. Morgan on April
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8, 2005. This response, inter alia, denied the existence in this case of any
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unresolved material dispute as to the decedent’s title to property. The request for
a jury trial was denied, for the second time, by order dated April 21, 2005
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(docketed April 25, 2005). This denial is apparently one of the interlocutory
orders being appealed by Robert M. Mumma, II.
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-record
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.
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
20
Request for Jury Trial on Objections to Inventory and Accounting Pursuant to PEF Code
777(a), filed March 24, 2005.
21
Order of Court, March 30, 2005.
22
Response of Barbara McK. Mumma and Lisa M. Morgan to Request of Robert M. Mumma, II
for a Jury Trial Pursuant to 20 Pa. C.S. §777(a), filed April 8, 2005, at 2.
23
Response of Barbara McK. Mumma and Lisa M. Morgan to Request of Robert M. Mumma, II
for a Jury Trial Pursuant to 20 Pa. C.S. §777(a), filed April 8, 2005, at 2.
24
Order of Court, April 21, 2005.
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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
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executrixes/trustees to the discovery requests.
Shortly thereafter, Robert M. Mumma, II, filed a Motion To Compel
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Inspection of All Books and Records. As had been done with his earlier
discovery motion, this matter was referred to the auditor in the first instance for
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purposes of proposing a recommended order. This order of court, dated April
29, 2005 (docketed April 29, 2005), referring the motion to the auditor for review,
is apparently one of the interlocutory orders being appealed by Robert M.
Mumma, II.
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,
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in accordance with his recommendation, the court entered the following order
dealing, for the moment, with the various outstanding discovery issues in the case:
AND NOW, this 19th day of May 2005, upon
recommendation of the Auditor in this case, it is hereby ordered as
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.
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
Auditor’s Request for Discovery Order, filed May 17, 2005.
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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
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upon the Auditor as well as all other parties.
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
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Has Waived Its Right,” on April 20, 2005. By order of court dated April 22,
2005, this question was included among the issues to be reviewed by the auditor in
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the course of his duties relating to the objections to the accounts.
The date of docketing of this latter order (April 25, 2005) suggests that it
may be one of the interlocutory orders from which Robert M. Mumma, II, has
appealed. However, it does not seem to be encompassed by his statement of
matters complained of on appeal.
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.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
29
Order of Court, May 19, 2005.
30
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.
31
Order of Court, filed April 22, 2005.
10
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. Pl. 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).
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
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Procedure 313, and (c) those orders permitted to be appealed to an appellate
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, §2, as
amended, 42 Pa. C.S. §702(b); see Pa. R.A.P. 312, 1311.
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Under this rule, “[a] collateral order is an order separable from and collateral to the main cause
of action where the right involved is too important to be denied review and the question presented
11
Orders relating to jury trials, discovery, waivers, and appointment of an
auditor are typical of nonappealable interlocutory orders. See In re Jones’ Estate,
400 Pa. 545, 549, 162 A.2d 408, 411 (1960) (appointment of an auditor issue);
Van der Laan v. Nazareth Hospital, 703 A.2d 540 (Pa. Super. Ct. 1997) (discovery
issue); Optimum Image, Inc. v. Philadelphia Electric Co., 410 Pa. Super. 475, 600
A.2d 553 (1991) (jury issue); Robson v. State Farm Mutual Automobile Insurance
Co., 335 Pa. Super. 365, 484 A.2d 177 (1984) (waiver issue); In re Fair’s Estate,
34 Pa. Super. 263 (1907) (discovery issue); In re Dengler’s Estate, 13 Pa. D. &
C.2d 193 (Philadelphia 1958) (jury issue).
In the present case, the orders on these subjects did not put the appellant out
of court and were thus interlocutory in nature. They did not fall within any of the
exceptions to the general rule of nonappealability of interlocutory orders, and they
were typical of the type of orders which have been held interlocutory and
unappealable by the courts. For these reasons, it is believed that the appeal of
Robert M. Mumma, II, herein is subject to quashal.
Effect of prior rulings on same subject in case. As a matter of practice,
during the pendency of a case, an issue that has been ruled upon once should not
be casually revisited upon subsequent, identical motions in the absence of altered
circumstances or a change in the law. Cf. Sanchez v. Philadelphia Housing
Authority, 148 Pa. Commw. 329, 334, 611 A.2d 346, 348 (1992). The reason for
this policy obviously relates to judicial economy and the need to maintain
consistency during the course of litigation. Id.
As Justice Stevens of the United States Supreme Court has observed: “As a
matter of ordinary procedure, the burdens of litigation are minimized and the
decisional process is expedited if a court is consistent in its rulings as a case
progresses.” Illinois v. Gates, 459 U.S. 1028, 1028, 103 S. Ct. 436, 436, 74 L.
Ed.2d 595 (1982) (dissenting opinion).
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).
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In the present case, two of the orders appealed from would appear to be
encompassed by this policy favoring consistency during the pendency of a case.
These are the order denying the request for a jury trial on the present record, and
the order referring a discovery issue to the auditor for initial review and
recommendation.
Denial of request for jury trial. Under Section 777(a) of the Probate,
Estates and Fiduciaries Code, it is provided as follows:
When a substantial dispute of fact shall arise concerning the
decedent’s title to property, real or personal, any party in interest
shall be entitled to a trial of such issue by a jury. The verdict of the
jury shall have the same effect as the verdict of a jury in a case at
law.
Act of June 30, 1972, P.L. 508, §2, as amended, 20 Pa. C.S. §777(a) (2005 Supp.).
In the matter sub judice, the record is far from clear that “a substantial
dispute of fact . . . concerning the decedent’s title to property” has been implicated
by the objections which have been assigned to the auditor for review. Should the
auditor’s hearings reveal otherwise, the matter of a jury trial on that issue can be
revisited. In the meantime, in view of (a) the general policy against altering
rulings during the pendency of a case in the absence of a change in the law or
circumstances, and the fact that the order denying a request for a jury trial which is
now being appealed had been preceded by a prior resolution of the same issue a
month earlier, (b) the interlocutory nature of the ruling appealed from, and (c) the
absence of a clear right to a jury trial on the present, undeveloped record, it is
believed that the appeal of Robert M. Mumma, II, from the court’s order dated
April 21, 2005, is not sustainable.
Referral of discovery issue to auditor for initial review and recommended
order. It is not uncommon in matters where discovery is complicated for a court
to refer a discovery issue in the first instance to a master or auditor. See, e.g.,
George v. Schirra, 2002 PA Super. 395, 814 A.2d 202. The efficacy of such a
practice was demonstrated in the present case by the reasonable discovery order,
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which was adopted by the court, recommended by the auditor herein after holding
a discovery conference.
In view of (a) the general policy against altering procedures during the
pendency of a case, and the fact that the order referring the discovery motion in
the first instance to the auditor had been preceded by a similar referral in the past,
(b) the interlocutory nature of the referral, (c) the routine nature of such referrals,
and (d) the reservation to the court of the responsibility for ultimate disposition of
the discovery motion, it is believed that the appeal of Robert M. Mumma, II, from
the order of court dated April 29, 2005, is not sustainable.
Referral of disclaimer issue to auditor in first instance. An issue not
included in a statement of matters complained of on appeal is deemed waived for
purposes of the appeal. Commonwealth v. Johnson, 565 Pa. 51, 771 A.2d 751
(2001). The matter of the referral of the disclaimer issue to the auditor has not
been included in the statement of matters complained of on appeal filed in this
33
case. This opinion will therefore not address that issue, other than to note that
the matter would be unappealable based upon its interlocutory nature in any event.
Appointment of auditor prior to completion of discovery. None of the
orders issued or docketed on dates referred to in the notice of appeal filed herein
relate to the issue of the appointment of an auditor prior to completion of
discovery. Those orders that might be construed to implicate such an issue—the
order appointing an auditor dated January 6, 2005, and the two orders denying a
stay, dated March 11, 2005, and March 30, 2005—were entered well before those
referenced in the notice of appeal, and too early for the May 19, 2005, notice of
appeal to be timely as to them. This opinion will therefore not address that issue
as raised in the statement of matters complained of on appeal, other than to note
that the matter would be unappealable based upon its interlocutory nature in any
event.
33
As noted in the text, it is not entirely clear that this order was one which Robert M. Mumma, II,
intended to be encompassed by his notice of appeal.
14
BY THE COURT,
_________________
J. Wesley Oler, Jr., J.
Robert M. Mumma, II
P.O. Box 58
Bowmansdale, PA 17008
Pro Se
Ivo V. Otto, III, Esq.
Ten East High Street
Carlisle, PA 17013
Attorney for Barbara McK. Mumma
and Lisa M. Morgan
Joseph A. O’Connor, Jr., Esq.
Brady L. Green, Esq.
1701 Market Street
Philadelphia, PA 19103-2921
Attorneys for Barbara McK. Mumma
and Lisa M. Morgan
Ralph A. Jacobs, Esq.
th
215 S. Broad St., 10 Floor
Philadelphia, PA 19107
Attorney for Barbara M. Mumma
Taylor P. Andrews, Esq.
78 E. Pomfret Street
Carlisle, PA 17013
Auditor
Courtesy Copy:
Kirk S. Sohonage, Esq.
P.O. Box 480
Camp Hill, PA 17011
15