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HomeMy WebLinkAbout21-1986-398 IN RE: ESTATE OF ROBERT : IN THE COURT OF COMMON PLEAS OF M. MUMMA, : CUMBERLAND COUNTY, PENNSYLVANIA Deceased : ORPHANS’ COURT : : No. 21-86-0398 IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, S.J., June 14, 2016. In this decedent’s estate case that remains in litigation after 30 years, a pro se 1 beneficiary, who has filed at least sixteen previous appeals and whose past conduct was estimated by an auditor several years ago to have cost the estate in excess of five million 23 dollars in attorney’s fees, has filed another appeal. The current appeal is from what would appear to be an unappealable interlocutory order dated April 8, 2016, dealing with 4 deposition issues, and from an order dated April 27, 2016, authorizing a modest interim 5 distribution from a residuary trust. 1 See Notices of Appeal dated: April 6, 1989; August 17, 1993; December 22, 1993; May 19, 2005; September 15, 2005; October 6, 2006; October 17, 2008; January 14, 2009; February 9, 2009; March 14, 2011; January 12, 2012; June 10, 2013; June 10, 2013; July 8, 2013; May 29, 2014; and August 5, 2014. 2 See Report of Auditor, ¶444, filed August 7, 2013. 3 Notice of Appeal, filed May 5, 2016. 4 Appellant has filed numerous appeals from interlocutory orders in the past and is well aware of the general rule of non-appealability applicable to them. See, e.g., Order of Court dated September 6, 2005 \[appeal quashed, No. 1546 MDA 2005 (Pa. Super. Ct.)\]; Order of Court dated September 19, 2008 \[appeal quashed, No. 1875 MDA 2008 (Pa. Super. Ct)\]; Order of Court dated January 8, 2009 \[appeal quashed, No. 270 MDA 2009 (Pa. Super. Ct.)\]; Order of Court dated December 13, 2011 \[appeal quashed, No. 97 MDA 2012 (Pa. Super. Ct.)\]; Order of Court dated May 6, 2013 \[appeal quashed, 1003 MDA 2013 (Pa. Super. Ct.)\]; Order of Court dated May 6, 2013 \[appeal quashed, No. 1027 MDA 2013 (Pa. Super. Ct.)\]; Order of Court dated May 6, 2013 \[appeal quashed, No. 1028 MDA 2013 (Pa. Super. Ct.)\]; Order of Court dated June 5, 2013 \[appeal quashed, No. 1222 MDA 2013 (Pa. Super. Ct.)\]. In a case involving a decedent’s estate, confirmation of the final account is normally the final, appealable order, subject to exceptions being filed and resolved by the orphans’ court. In re Estate of Cherwinski, 2004 PA Super 305, 856 A.2d 165. 5 See Pa. R.A.P. 342(a)(1) (immediate appealability of orphans’ court orders confirming accounts or authorizing distributions). The errors complained of on appeal have been expressed by Appellant as follows: The April 8, 2016 Order 1. The Court is denying Robert M. Mumma, II (Bob) the ability to conduct a proper deposition. Lisa can deny anything at will, except for form. The Court will then decide what questions Bob can ask, and what issues he can raise. This is precisely what the Court did at the last hearing for her removal. Judge Oler interrupted Bob’s examination of witnesses and cut off the hearing. 2. This procedure assures future motions, hearings, and depositions. Exactly the goal of Lisa and her attorneys. Bob is not benefitting from the delay, it is his assets that are in dispute. The longer the probate goes on, the more fees the attorneys charge, and the more assets the Court allows her to steal. 3. The Court has never conducted a Jury trial on the issue of ownership of Pennsy Supply Inc., Lebanon Rock, Inc. High Spec, Inc. Bobali, Corp., Pennsylvania Supply Company and Kim Company. Mr. Buckley, the Court appointed Auditor, did not adequately address the issue for two reasons: it wasn’t before him as part of the audit, and he was of the opinion that as an executrix Lisa was entitled to take assets owned outright by her siblings and claw them back into Robert’s estate. Judge Oler actually adopted this reasoning. It seems that it is now permissible for an estate to be used as a criminal enterprise. At least that is the position Judge Oler has adopted. Since Lisa was not a party to 99-cv-2765 Cumberland County and the Court never determined anything with regards to the Pennsy Supply Inc. stock held by Kim Company, the issue is not being re-litigated. It’s an effort to determine why Lisa went along with a decision that cost the beneficiaries the ownership of Pennsy Supply Inc. they inherited from Walter Mumma. Judge Oler has abused his discretion by not resolving the ownership issues. The Superior Court has determined that Bob is entitled to a Jury trial, on this significant issue. Judge Oler refuses to accept the \[sic\] involves over 70 per-cent of the estate assets. 4. The Court should have decided the ownership issues in 1999. Judge Oler delayed the case until 2014. The estate and trusts do not provide for partial distributions after Barbara McK Mumma’s death July 17, 2010. The April 27, 2016 Order. 1. The distribution was never approved, and thus never ripe for appeal. Lisa has never submitted a Plan of Distribution of Estate assets for the Court to approve. Any such plan would necessarily have to also be approved by executrix Barbara M. Mumma. Robert’s Will instructs that distributions from the trusts be “outright” . . . “as then constituted” . . . “share and share alike”. Four years ago the beneficiaries asked Lisa to make this distribution, with each receiving a quarter of each trust asset. The Court has refused to Order that distribution The Court has abused it’s \[sic\] discretion by not ordering Lisa to make the distribution requested by the beneficiaries four years ago. Lisa and Morgan Lewis determined days after Robert’s death to alter the terms of distribution of trust assets to benefit Lisa at the expense of the other beneficiaries. The Court has determined to allow Lisa to convert assets of the trust that are properly owned by the beneficiaries. Barbara McKimmie Mumma was an income beneficiary only. She had no ownership interest in the trust assets. Robert intended that each child would get an 2 equal and same distribution. The Court is set on allowing Lisa to sell the assets the beneficiaries want to receive as their father planned. 2. Lisa is proposing to make a partial distribution of the income earned by the Trust. Most of this income is generated from the properties the trusts were to distribute after Barbara McK Mumma’s death on July 17, 2010. Lisa should not make partial distributions. The income belonged to the beneficiaries after July 18, 2010. All of that income is due the beneficiaries. The Court should have ordered her to pay it over as required by section TENTH of Robert’s Will. 3. In the second issue raised in the Order, the Court orders Bob to give Lisa the addresses of his adult children. The Court has apparently ignored two previous Orders, one from Judge Harold Sheely and one acknowledging the Sheely Order to be the law of the case, by Judge George Hoffer. This is an obvious attempt deny \[sic\] Bob has \[sic\] share of the distribution, by creating a division of interest that Judge Oler apparently intends to relitigate. Here the Court and Lisa intend to add another dispute among Bob’s family. The issue of Bob’s disclaimer is not for the Trustee. It was for the executrices. They raised it in 1987. Judges Sheely and Hoffer decided it. Morgan Lewis and Bockius proposed the disclaimer, while they represented Bob. Based on this advice Bob sent a single signed Disclaimer, for the sole purpose of meeting the requirements of the IRS, to Morgan Lewis and instructed them to put the disclaimer in their files for the Estate, and not record it in the Orphans Court file. William Martson, somehow managed to record a faxed copy from Morgan Lewis in the Orphan’s Court. The Martson firm should not, and would not in other jurisdictions, be allowed to take any position on the disclaimer issue and should be removed from representation of the estate. Not only was the filing unauthorized it was improper. Bob has previously filed a Motion for the Recusal of Judge Oler. Bob believes that Judge Oler is so prejudiced that there is now a concerted effort to deny Bob a full and fair opportunity to reclaim the corporate assets Lisa, Joseph O’Connor and Morgan Lewis and Bockius conspired to fund the Marital Trust of Robert’s estate with. Bob has two significant exhibit’s \[sic\] that Judge \[sic\] has refused to accept. A letter from insurance agent Robert Schmidt outlining that the four Mumma children owned the corporate assets outright as early as 1973, and a memorandum by Joseph O’Connor how Morgan Lewis and Bockius planned to alter the terms of SEVENTH and 6 EIGHTH for the benefit of the Trustees. This opinion in support of the orders appealed from is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). 6 Concise Statement of Matters Complained of in the Appeal of the Orders of April 8 and April 27, 2016, filed May 27, 2016. 3 STATEMENT OF FACTS Divested of a recitation of the many impediments that have served to prolong this this case, the history of the estate and associated testamentary trusts may be summarized as follows: Robert M. Mumma, an active businessman domiciled in Wormleysburg, 789 Cumberland County, Pennsylvania, died on April 12, 1986, at the age of 71, survived 10 by his spouse, Barbara McK. Mumma, and four adult children, whose present names are Lisa M. Morgan (formerly Mumma), Robert M. Mumma, II, Barbara M. Mumma 11 (formerly McClure), and Linda M. Mumma (formerly Roth). 12 The decedent’s will, executed in 1982, was not complicated. A marital trust and a residuary trust were provided for. The decedent’s spouse was a life beneficiary and his 13 children the remaindermen of each trust. The funding of the marital trust was directed to be in 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 have passed to my wife under other provisions of this Will or otherwise than under this 14 Will. . . . The decedent, in his will, appointed his spouse, Barbara McK. Mumma, and his daughter Lisa M. Morgan (formerly Mumma), as co-executrices of the will and co- 15 trustees of the testamentary trusts. By a codicil dated October 12, 1984, the decedent 7 Petition for Probate and Grant of Letters, filed June 5, 1986. 8 Petition for Probate and Grant of Letters, filed June 5, 1986. 9 Petition for Probate and Grant of Letters, filed June 5, 1986. 10 See Opinion and Order of Court, dated November 17, 1989, at 1 (Sheely, P.J.). 11 See Petition To Authorize Plan of Liquidation ¶2, filed April 5, 2012. 12 See generally Last Will and Testament of Robert M. Mumma, dated May 19, 1982. 13 See Last Will and Testament of Robert M. Mumma, dated May 19, 1982, ¶¶7-8. 14 Last Will and Testament of Robert M. Mumma, dated May 19, 1982, §7. 15 Last Will and Testament of Robert M. Mumma, dated May 19, 1982, ¶15. 4 removed Appellant—his son and the beneficiary referred to above who has proven 16 litigious—from any position as a successor fiduciary. With respect to the marital trust, decedent’s spouse was to receive (a) the annual income therefrom, (b) such amount of the principal as deemed appropriate by the co- trustee to maintain her accustomed standard of living, and (c) the greater of $5,000.00 or five percent of the principal of the trust annually upon request, said invasion of principal 17 to be “noncumulative.” With respect to the residuary trust, decedent’s spouse was to receive (a) the annual income therefrom and (b) such amount of the principal as deemed 18 appropriate by the co-trustees to maintain her accustomed standard of living. 19 Each trust was to terminate upon the death of the decedent’s spouse. Upon her death, the principal of each trust, “as it \[was\] then constituted,” was to be paid over to the 20 remaindermen, decedent’s children. In their fiduciary capacities, the co-executrices/trustees were provided with very 21 broad powers under the decedent’s will. These extensive powers have tended to undermine Appellant’s attempts to control the administration of the estate. 16 First Codicil to Last Will and Testament of Robert M. Mumma, dated October 12, 1984. 17 Last Will and Testament of Robert M. Mumma, dated May 19, 1982, ¶7. 18 Last Will and Testament of Robert M. Mumma, dated May 19, 1982, ¶8. 19 Last Will and Testament of Robert M. Mumma, dated May 19, 1982, ¶¶7, 8. 20 Last Will and Testament of Robert M. Mumma, dated May 19, 1982, ¶¶7, 8. 21 In this regard, the following provisions of the will are illustrative: I give and grant unto my trustees, and the survivor thereof, and their successor or successors, the following powers, which shall be construed broadly and which may be exercised by them in either or both capacities, as in their discretion they deem advisable, in addition to and not in limitation of their common law and statutory powers: (1) To allot, assign, care for, collect, contract with respect to, convey, convert, deal with, dispose of, enter into, exchange, hold, improve, invest, lease, manage, mortgage, grant and exercise options with respect to, take possession of, pledge, receive, release, sell, sue for, and in general do any and every act and thing and to enter into and carry out any and every agreement with respect to the property included in any trust created in this Will which they could if they were the absolute owners thereof, without being limited in any way by the specific grants of power hereinafter made. 5 (2) To retain for such time as in their judgment may seem advisable all or any part of my property or assets which at any time shall constitute a part of the trusts herein provided for. (3) To sell or exchange, either privately or at public sale and without prior approval of any court, at such time or times and at such price or prices and on such terms and conditions as the trustees may consider advisable, all or any part of the trust property, real, personal or mixed, and to execute, verify, acknowledge and deliver all deeds, bills of sale, or other documents which may be necessary or proper in the exercise of such powers without liability on the purchaser or purchasers to look to the application of the purchase price. (4) To manage any real property held by them in such manner as they may determine, including authority to alter, repair, maintain or improve such property as hereinafter set forth, to mortgage such property on such amount, on such conditions and at such rates of interest as they shall deem advisable; to abandon such property, to adjust bound\[a\]ries, to erect or demolish buildings thereon, to convert for a different use, to dedicate for public use without compensation, to grant easements and rights-of-way, to waive payment for property taken by right of eminent domain and to claim and negotiate for payment for property, to enter into party-wall contracts, to protect out of the general funds of the Trusts created herein, to insure or perfect title and to charge the cost of any action taken with regard to any such property to principal or income as they may determine. To make all ordinary repairs to any real estate held by them and such extraordinary repairs, alterations or improvements against the principal of the Trusts herein created of which the property being repaired, altered or improved forms a part. (5) To lease any real estate subject to the Trust herein created for such term\[\] or terms, and for such rental or rentals, and under such covenants and agreements as may, in the discretion of the trustees, be considered for the best interest of the trust estate. The trustees shall recognize existing leases, but still have the power to agree to modification of, or amendment to, the terms of existing leases or to extensions or renewals thereof. The trustees shall have authority to acquire by purchase, gift or otherwise, and to resell, receive, hold, manage and control real estate, and any other interest therein, subject to the Trusts, and do all things necessary or proper in the performance of such functions. (6) To invest, and from time to time to reinvest, to acquire, and to retain temporarily or permanently the trust estates received or held by them in cash or in kind or real or personal property, foreign or domestic, including by way of illustration, but not by way of limitation, common or preferred stocks, investment bonds, mortgages, debentures, notes, unsecured obligations, wasting assets, or investments which are unproductive, overproductive or underproductive as in their discretion they may deem advisable, and the total trust funds or the relation it may bear to the type or character of other investments in the trust estates, or to the effect in the trust estates and they shall not be restricted in their choice under any present or future applicable law, it being my intention to give my trustees power to act in such manner as they will believe to be for the best interest of the Trusts created herein. (7) To pay income tax on gains from the sale or other conversion of capital assets out of the corpus thereof. 6 (8) To amortize, accelerate payment of, reduce, extend, modify, settle or liquidate any lien, encumbrance, mortgage, or other charge against any real estate or other property which may be subject to these Trusts. The trustees shall specifically keep and perform all of the covenants, terms and conditions of any existing mortgage or mortgages upon said real estate, on the part of the mortgagor required to be kept and performed and shall have full power and authority with the consent of the mortgagee or mortgagees, to refund, replace, extend or otherwise amend the same, and to anticipate and accelerate any periodical payments therein required. (9) To subscribe for stock allotments and to exercise all rights and privileges pertaining to securities which are available to the owner thereof. (10) To receive or make distribution of any trust herein created, either in money or in kind, or partly in money and partly in kind. The judgment of the trustees as to what shall constitute an equitable distribution or apportionment shall be binding and conclusive upon the beneficiaries hereof. Nothing herein contained, however, shall empower the trustees to make distribution before the time or times specified herein. (11) To pay, collect, compromise, sue for or contract any claim or other matter, directly or indirectly, affecting the Trusts. (12) To use income and/or principal to maintain in force any policies of life insurance which I may own on the life or lives of other persons or to receive in gift or purchase or maintain previously existing insurance or annuity contracts for the benefit of any beneficiary, primary or contingent, if the trustees determine that the best interest of my family would be served by purchasing said contracts or by continuing such insurance in force, and to exercise all the powers given to the owner of such policies. (13) To employ counsel, auditors, custodians, accountants, appraisers, engineers, and other persons, professional or otherwise, as may be necessary for the proper administration of the Trusts, and to pay their compensation f\[rom\] trust funds. (14) To borrow money and as security thereof, to execute bonds and mortgages containing warrants of attorney, to confess judgment and to pledge personal property. (15) To incorporate any unincorporated business received from my estate. (16) To carry on and conduct any business enterprise in which I may be engaged at my death. (17) To hold, invest and account for the separate Trusts in one or more consolidated funds, in whole or in part, as they may determine. As to each consolidated fund, the division into the various shares comprising such fund need be made only on the trustees’ books of account, in which each Trust shall be allotted its proportionate part of the principal and income of the fund and charged with its proportionate part of the expenses thereof. No such holding shall, however, defer the vesting in possession of any estate created herein. (18) As to each Trust created herein, to exercise all the powers granted and all the duties imposed herein until such time after the termination of that Trust as the property included in that Trust has been fully distributed, and to do all other acts which, in their judgment, may be necessary or appropriate for the proper or advantageous management, investment or disposition of any property included in any Trust created herein. 7 * * * * The Trustees shall be vested with reasonable discretionary powers and in all matters not otherwise herein specifically provided, they shall exercise their sound judgment and discretion in the performance of their duties hereunder. They shall not be liable for any error of judgment provided that such error is honestly made. * * * * I hereby give unto my Executrix, or her successors, hereinabove named, the fullest power and authority in all matters or questions pertaining to the administration of my estate, executing the provisions of this my Last Will and Testament, including, but not by way of limitation, the power and authority to determine all doubtful questions which may arise in the construction of this my Last Will and Testament and the trust hereunder; I further hereby authorize and empower my Executrix, or her successors, pending settlement of my estate, to sell, convey, mortgage, lease, exchange, encumber or otherwise dispose of any and all of the property, real, personal or mixed, at any time belonging to my estate, either at public or private sale, without prior approval of any court, and at such times and for such price or prices and in any such case upon such terms as she may think best in her discretion, and I authorize and empower my said Executrix to execute, acknowledge and deliver to the purchasers, grantees, mortgagees, vendees, assignees or other persons, such contracts, deeds, mortgages, bills of sale, and all other instruments of writing necessary or proper without obligation upon the latter to see to the proper application of the proceeds. She shall also have the power to compromise or otherwise to settle or adjust any and all claims, charges, debts and demands whatsoever against or in favor of my estate, as fully as I could do if living. She shall further be empowered to carry on and conduct any business enterprise \[in\] which I may be engaged at my death, to retain any assets, including stocks or securities which I may own at the time of my death, pending settlement of my estate, without regard as to whether or not such assets or securities are legal investments for fiduciaries, and may make distribution in kind to my trustees. Pending settlement of my estate, she shall also have the authority in her discretion to convert, sell, exchange or dispose of such assets and securities either for cash of for terms satisfactory to her and to acquire other assets without limitation to securities or investments as may be declared legal for investment for fiduciaries. She shall further be empowered to borrow money, and to pledge assets of my Estate as security therefor, for the purpose of paying taxes which may be levied upon or payable by my estate, in accordance with this Will in the event that funds in the hands of my Executrix, or her successors, shall be insufficient to pay such taxes, and if, in the opinion of my Executrix, or her successors, it appears that conversion of securities and other assets, real and personal, would then be made at a sacrifice. Last Will and Testament of Robert M. Mumma, dated May 19, 1982. The will also contained this language: . . . It is my desire that if expedient and possible, the businesses which I have personally directed during my lifetime and of which I have had an interest be continued for the benefit of and under the management and control of my immediate family. Last Will and Testament of Robert M. Mumma, dated May 19, 1982. 8 In 1986, given the prospect of liquidations of corporations in which the estate held large majority interests, and in order to avoid the double taxation that would have resulted, pursuant to then-recent federal legislation, from a delay, the shareholders entered into two agreements whereby various assets of the dissolved corporations were to 22 be held as tenants-in-common. These agreements were known as MRA I and MRA II 23 \[MRA standing for Mumma Realty Associates\], and management of the tenancies-in- common was assigned to a corporation known as MRA, Inc., of which the co- 24 executors/co-trustees were the officers and directors. Contrary to positions taken by Appellant herein in subsequent litigation, (a) these agreements were valid and binding upon him and (b) he did not have a right of first refusal regarding the sale of a business 25 being conducted pursuant to the agreements. 26 In 1987, Appellant disclaimed his interest in the trusts. However, he later 27 changed his mind, his petition to revoke the disclaimer was granted by the Honorable 28 Harold E. Sheely of this court, and an appeal on behalf of his minor children was dismissed by the Superior Court as having been taken by their guardian ad litem without 29 authority to do so under the guardian’s assigned responsibilities. 22 Opinion and Order of Court, dated March 24, 1992, Mumma v. Mumma, No. 66 Equity 1988 (Cumberland Co.) (Sheely, P.J.), aff’d, 433 Pa. Super. 660, 639 A.2d 846 (1993), allocatur denied, 539 Pa. 679, 652 A.2d 1324 (1994). 23 See Petition To Authorize Plan of Liquidation, at 2-3, filed April 5, 2012. 24 Opinion and Order of Court, dated March 24, 1992, Mumma v. Mumma, No. 66 Equity 1988 (Cumberland Co.) (Sheely, P.J.), aff’d, 433 Pa. Super.660, 639 A.2d 846 (1993), allocatur denied, 539 Pa. 679, 652 A.2d 1324 (1994). 25 Opinion and Order of Court, dated March 24, 1992, Mumma v. Mumma, No. 66 Equity 1988 (Cumberland Co.) (Sheely, P.J.), aff’d, 433 Pa. Super. 660, 639 A.2d 846 (1993), allocatur denied, 539 Pa. 679, 652 A.2d 1324 (1994). 26 Disclaimer by Robert M. Mumma, II, filed January 12, 1987. 27 Petition of Robert M. Mumma, II, To Revoke Disclaimer, filed June 20, 1989. 28 See Opinion and Decree Nisi, dated May 21, 1991. 29 Memorandum Opinion, filed July 18, 1994, No. 561 Harrisburg 1993 (Pa. Super. Ct.). 9 30 On July 17, 2010, the decedent’s widow, Barbara McK. Mumma, died. The efforts of the surviving co-trustee of the marital and residuary trusts to distribute the trust assets to the remainderman, in kind or in money, have been approved by the Pennsylvania Superior Court in the context of an earlier attempt by Appellant to have her removed: With respect to the distribution of assets to the four sibling beneficiaries, the trial court determined that Morgan’s testimony established that she is completing the process of obtaining valuations of the estate and trust assets and has asked the beneficiaries if they have any preferences regarding the receipt of particular assets or cash, and that she intends to make an equitable distribution of the assets to the beneficiaries after collecting this information. We agree with the trial court that this approach does not constitute any breach of fiduciary duty. Mumma, Sr. specifically provides Morgan in her role as his personal representative when making an equal distribution among the four sibling beneficiaries, with the power to decide how to “make distribution of any trust herein . created, either in money or in kind,or partly in money and partly in kind” . . . Mumma, Sr. further indicated that the “judgment of the trustees as to what shall constitute an equitable distribution or apportionment shall be binding and conclusive upon the 31 beneficiaries hereof.” . . . The record contains numerous accounts filed during the course of the 32 administration of the estate and trusts, including a Fourth and Final Account for the 30 See In re Estate of Robert M. Mumma, 2012 PA Super 41, 43, 41 A.3d 41, 43. 31 In re Estate of Robert M. Mumma, 2012 PA Super 41, 50, 41 A.3d 41, 50. 32 First and Interim Account for the Estate of Robert M. Mumma (April 12, 1986, through March 31, 1991), filed August 15, 1991; Second and Interim Account for the Estate of Robert M. Mumma (April 1, 1991, through March 31, 1996), filed June 1, 2000; Third and Interim Account for the Estate of Robert M. Mumma (April 1, 1996, through March 31, 1999), filed January 8, 2004; First and Interim Account for the Marital Trust Established under the Last Will and Testament of Robert M. Mumma (November 19, 1986), filed August 15, 1991; Second and Interim Account for the Marital Trust Established under the Last Will and Testament of Robert M. Mumma (April 1, 1991, through March 31, 1996), filed May 15, 2000; Third and Interim Account for the Marital Trust Established under the Last Will and Testament of Robert M. Mumma (April 1, 1996, through March 31, 1999), filed May 15, 2000; Fourth and Interim Account for the Marital Trust Established under the Last Will and Testament of Robert M. Mumma (April 1, 1999, through December 31, 2003), filed March 9, 2004; Fifth and Interim Account and Proposed Distribution of Assets for the Marital Trust Established under the Last Will and Testament of Robert M. Mumma (January 1, 2004, through July 17, 2010), filed September 10, 2010; Account of the Marital Trust under the Will of Robert M. Mumma, Deceased (July 18, 2010, through December 31, 2012), filed September 6, 2013; First and Interim Account for the Residual Trust Established under the Last Will and Testament of Robert M. Mumma (November 24, 1986, through March 31, 1991), filed August 15, 1991; Second and Interim Account for the Residual Trust Established under the Last Will and Testament of Robert M. Mumma (April 1, 1991, through March 31, 1996), filed June 1, 2000; Third and Interim Account for the Residual Trust Established under the Last Will and Testament of Robert M. 10 33 estate, a 2010 Accounting of Lisa Morgan and Barbara McK. Mumma, deceased, as 34 Trustees of Marital Trust under the Will of Robert M. Mumma, and a 2010 Accounting of Lisa Mumma Morgan and Barbara McK. Mumma, deceased, as Trustees of Residual 35 Trust under the Will of Robert M. Mumma. A multitude of objections were filed in 36 response to the accounts. The initial auditor appointed by the court in the case Mumma (April 1, 1996, through March 31, 1999), filed May 15, 2000; Fourth and Interim Account for the Residual Trust established under the Last Will and Testament of Robert M. Mumma (April 1, 1999, through December 31, 2003), filed March 9, 2004; Fifth and Interim Account and Proposed Distribution of Assets for the Residual Trust Established under the Last Will and Testament of Robert M. Mumma (January 1, 2004, through July 17, 2010), filed September 10, 2010; Account of the Residual Trust under the Will of Robert M. Mumma, Deceased (July 18, 2010, through December 31, 2012), filed September 6, 2013. 33 Fourth and Final Account for the Estate of Robert M. Mumma (April 1, 1999, through September 20, 2003), filed January 1, 2004. 34 Accounting of Lisa Morgan and Barbara McK. Mumma, deceased, as Trustees of Marital Trust under the Will of Robert M. Mumma, (January 1, 2004, through July 17, 2010), filed September 10, 2010. 35 Accounting of Lisa Mumma Morgan and Barbara McK. Mumma, deceased, as Trustees of Residual Trust under the Will of Robert M. Mumma (January 1, 2004, through July 17, 2010), filed September 10, 2010. Most recently, an Account of the Marital Trust under the Will of Robert M. Mumma, Deceased (July 18, 2010, through December 31, 2012), filed September 6, 2013, and an Account of the Residual Trust under the Will of Robert M. Mumma, Deceased (July 18, 2010, through December 31, 2012), filed September 6, 2013, have been filed, and objections to these accounts have been filed on October 8, 2013. These objections have been referred to a successor auditor, in the person of Anthony L. DeLuca, Esq. See Order of Court, dated November 7, 2013. 36 Statement of General Objections to the First and Interim Account for the Estate of Robert M. Mumma, Deceased and the First and Interim Accounts for the Marital and Residuary Trusts under Will of Robert M. Mumma, filed by Robert M. Mumma, II, October 4, 1991; Supplemental 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, filed by Robert M. Mumma, II, May 27, 2004; Supplemental Statement of Objections 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 by Robert M. Mumma, II, May 27, 2004; Supplemental Objections, filed by Robert M. Mumma, II, January 31, 2008; Statement of General Objections to Petition of Adjudication/Statement of Proposed Distribution of the Residuary Trust under Will of Robert M. Mumma, Deceased, filed by Robert M. Mumma, II, November 22, 2010; Statement of General Objections to Petition of Adjudication/Statement of Proposed Distribution of the Residuary Trust under Will of Robert M. Mumma, Deceased, filed by Robert M. Mumma, II, November 22, 2010; Objections of Robert M. Mumma, II to the Account of the Marital Trust July 18, 2010 to December 31, 2012, filed October 7, 2013, stricken, Order of Court dated October 10, 2013; Objections of Robert M. Mumma, II to the Account of the Residual Trust July 18, 2010 to December 31, 2012, filed October 7, 2013, stricken, Order of Court, October 10, 2013; Objections of Robert M. Mumma, II to Account of Residuary Trust for Period July 18, 2010 to December 31, 2012, and Accompanying Petition for Adjudication Filed by Lisa 11 ultimately found himself unable to reconcile the workload occasioned by the assignment 37 with his other responsibilities as a practicing attorney and was replaced by Cumberland 38 County attorney Joseph D. Buckley. Mr. Buckley conducted approximately 40 days of 3940 hearing and issued numerous interim reports. Appellant’s conduct at the auditor’s hearings was described by the Superior Court in a recent opinion on one of his appeals as follows: Throughout the hearings before the Auditor, Robert II engaged in repetitive questioning of witnesses, consuming days of hearing time with examinations regarding irrelevant entities and matters. Robert II serially arrived late for scheduled sessions, stormed out of the proceedings and disregarded instructions that he be prepared with copies of documents he intended to introduce as exhibits. See, e.g., Auditor Hearing, 8/6/09, at 2335-36 (Robert II left hearing session and did not return); Auditor Hearing, 4/27/10, at 5824-25 (Robert II left courtroom shortly after start of hearing session and did not return); Auditor Hearing, 4/28/10, at 5635, 6045 (Robert II failed to appear for start of hearing session and arrived well over an hour late); Auditor Hearing, 6/14/10, at 6671 (Robert II abruptly ended questioning of Lisa \[M. Morgan\] and left hearing shortly after start of day’s proceedings); Auditor Hearing, 6/15/10, at 6880 (Robert II failed to appear for hearing); Auditor Hearing, 6/16/10, at 6990 (Robert II failed to appear for hearing); Auditor Hearing, 5/24/11, at 771-91 (Robert unprepared to proceed with evidence in support of objections). The Auditor further noted, and the record reflects, that Robert II called many witnesses who were adverse to his position and attempted to re-litigate every matter which had been determined by this Honorable Court and other courts. He was obdurate and attempted to delay and prolong hearings. His conduct was extremely unprofessional towards the Court, my position, the other attorneys and the opposing parties. Most of \[what\] he presented was irrelevant to the proceedings. He called witness after witness and would continually ask to reach a relevant issue but continually attempted to return to issues that had long been decided by this Honorable Court and other courts. He repeatedly promised to present credible relevant evidence, but did not meet any of his promises. M. Morgran \[sic\], Trustee, on September 6, 2013, filed October 8, 2013; Objections of Robert M. Mumma, II to Account of Marital Trust for Period July 18, 2010 to December 31, 2012, and Accompanying Petition for Adjudication Filed by Lisa M. Morgran \[sic\], Trustee, on September 6, 2013, filed October 8, 2013; Objections of Barbara Mann Mumma, filed September 15, 2008; Objections to the Account of the Marital Trust under the Will of Robert M. Mumma, Deceased, filed by Barbara Mann Mumma, November 22, 2010; Objections to Account of the Residuary Trust under the Will of Robert M. Mumma, Deceased, filed by Barbara Mann Mumma, November 22, 2010. 37 See Order of Court, dated September 19, 2008. 38 See Order of Court, dated September 19, 2008. 39 See Report of Auditor, filed August 7, 2013, at 2. 40 See, e.g., Auditor’s Interim Reports, Orphans’ Court Docket Entries 437, 457, 507, 603, 640, and 708. 12 In re Estate of Mumma, 2015 PA Super 209, ¶__, 2015 Pa. Super. LEXIS 569, at 33-35, 125 A.3d 1205, 1220 (citation omitted). 41 Mr. Buckley ultimately produced a 130-page final auditor’s report. Following 42 the filing of his final report, Appellant filed suit against him. In his final report, the auditor recommended that the objections to the accounts be overruled, that the initial auditor be recompensed by the estate and trusts in the amount of $11,856.46 for his services, and that Appellant be responsible for one-half the auditor’s 43 charges and one-half the estate’s attorney’s fees. Objections to the auditor’s report were 44 dismissed by this court and the challenged accounts were confirmed. On October 2, 2015, this court’s decision was affirmed on appeal by the 45 Pennsylvania Superior Court. However, the issue of an allowance-of-appeal by the 46 Pennsylvania Supreme Court from the Superior Court’s affirmance remains pending. Trust accounts for periods following the years dealt with in the auditor’s final report ensued. Thus, on September 6, 2013, accounts respecting the marital and residuary 47 trusts were filed covering the period from July 18, 2010, to December 31, 2012; 48 objections to the accounts were filed by Appellant; an auditor in the person of Anthony 41 See Report of Auditor, filed August 7, 2013. 42 See No. 2013-7096 Civil Term (Cumberland Co.) (filed December 2, 2013). Having been ruled to file a complaint, Appellant filed a praecipe to withdraw the action “without prejudice.” See praecipe, filed February 6, 2014. 43 See Report of Auditor, filed August 7, 2013, at 122, 124-25, 128-30. 44 Order of Court, April 30, 2014. 45 In re Estate of Mumma, 2015 PA Super 209, 2015 Pa. Super. LEXIS 569, 125 A.3d 1205. 46 See In re Estate of Mumma, Nos. 981-82 MAL 2015. 47 Petition for Adjudication/Statement of Proposed Distribution Pursuant to Pa. O.C. Rule 6.9 (marital trust), filed September 6, 2013; Petition for Adjudication/Statement of Proposed Distribution Pursuant to Pa. O.C. Rule 6.9 (residuary trust), filed September 6, 2013. 48 Objections of Robert M. Mumma, II to Account of Residuary Trust for Period July 18, 2010 to December 31, 2012, and Accompanying Petition for Adjudiciation \[sic\] Filed by Lisa M. Morgran \[sic\], Trustee, on September 6, 2013 (filed October 8, 2013); Objections of Robert M. Mumma, II to Account of Marital Trust for Period July 18, 2010 to December 31, 2012, and Accompanying Petition for Adjudicaiation \[sic\] Filed by Lisa M. Morgran \[sic\], Trustee, on September 6, 2013 (filed October 8, 2013). 13 49 L. DeLuca, Esq., was appointed by the court on November 7, 2013; and a 58-page auditor’s report was filed on September 30, 2015, recommending that the objections be 5051 overruled and the accounts confirmed. No objections to the auditor’s report were filed, 52 the recommendations of the auditor were approved by the court, and no appeal was taken from the confirmations. On July 25, 2014, accounts respecting the marital and residuary trusts were filed 53 covering the period from January 1, 2013, to December 31, 2013. Objections to the 54 accounts were filed by Appellant, and an auditor, again in the person of Anthony L. 55 DeLuca, Esq., was appointed by the court. An auditor’s report remains pending. On September 11, 2015, accounts respecting the marital and residuary trusts were 56 filed covering the period from January 1, 2014, to December 31, 2014. Objections to 57 the accounts were filed, an auditor, again in the person of Anthony L. DeLuca, Esq., 49 Order of Court, dated November 7, 2013. Inexplicably, Attorney Buckley declined reappointment as auditor. See id. 50 Auditor’s Report, filed September 30, 2015. 51 See Cumberland County O.C.R. 8.7-2 (time for filing objections to auditors’ reports). 52 Order of Court, dated October 28, 2015. 53 Petition for Adjudication/Statement of Proposed Distribution Pursuant to Pa. O.C. Rule 6.9 (marital trust), filed July 25, 2014; Petition for Adjudication/Statement of Proposed Distribution Pursuant to Pa. O.C. Rule 6.9 (residuary trust), filed July 25, 2014. 54 Objections to Account of the Marital Trust under the Will of Robert M. Mumma, Deceased, filed August 26, 2014; Objections to Account of the Residual Trust under the Will of Robert M. Mumma, Deceased, filed August 26, 2014. 55 Order of Court, August 29, 2014. 56 Petition for Adjudication/Statement of Proposed Distribution Pursuant to Pa. O.C. Rule 6.9 (marital trust), filed September 11, 2015; Petition for Adjudication/Statement of Proposed Distribution Pursuant to Pa. O.C. Rule 6.9 (residuary trust), filed September 11, 2015. 57 Statement of General Objections \[by Robert M. Mumma, II\] to the Accounts of the Marital and Residuary Trusts under the Will of Robert M. Mumma, Deceased, filed October 12, 2015; Objections \[of Barbara M. Mumma\] to Accounts of the Marital and Residuary Trusts under the Will of Robert M. Mumma, Deceased, filed October 12, 2015. It may be noted that Appellant’s fourth motion to recuse the undersigned judge from the case is also pending in this court. See Motion for Recusal of J. Wesley Oler, Jr., filed March 10, 2016; see also oral motion for recusal, Hearing, March 11, 2005; Motion for Recusal of Judge Due to Appearance of Impropriety, filed April 27, 2005; Further Motion for Recusal of Judge Oler, filed May 30, 2008. 14 58 was appointed by the court, and an auditor’s report remains pending. The filing with respect to the residuary trust declared funds on hand in the amount of $1,300,787.00 and included a proposed interim distribution in the total amount of $140,000.00, noting that “\[p\]resumptively such distribution would be made in equal shares in the amount of $35,000.00 to each of Robert M. Mumma II \[Appellant herein\], Barbara M. Mumma, 59 Linda M. Mumma and Lisa M. Morgan \[decedent’s children\].” The proposed distribution included a request (a) that Appellant be required to furnish to the accountant the addresses of his children, inasmuch as they might be entitled to notice of the distribution to the extent that any issue remained as to the validity of his earlier revocation of a disclaimer of his interest in the trusts, or (b) that provision be made 60 for some alternative form of notice to his children. None of the objections filed to the account and assigned to the auditor challenged the proportional scheme of the proposed distribution, whereby each beneficiary was entitled to a quarter share of distributions from the trust; the proposed distribution represented a small fraction of the original value 61 of decedent’s multi-million dollar estate. The accountant filed a motion to approve the interim distribution on April 21, 62 2016. The motion also reiterated the request that Appellant be directed to furnish the addresses of his children to the trustee for purposes of providing them with notice of the 63 proposed distribution. 58 Order of Court, dated October 21, 2015. 59 Petition for Adjudication/Statement of Proposed Distribution Pursuant to Pa. O.C. 6.9, attachment to Item 16B, filed September 11, 2015. 60 Petition for Adjudication/Statement of Proposed Distribution Pursuant to Pa. O.C. Rule 6.9, amendment to Item 1\[5\] B, filed September 11, 2015; see text accompanying notes 26-28 supra (discussion of disclaimer and revocation of disclaimer). 61 One asset in which the estate had an interest, a company known as “Pennsy Supply,” was sold for $34,000,000.00. In re Estate of Mumma, 2015 PA Super 209, ¶__, 2015 Pa. Super. LEXIS 569, __, 125 A.3d 1205, 1216-17. 62 Motion of Lisa M. Morgan for Approval of Proposed Distribution and Notice to Children of Robert M. Mumma, II, filed April 21, 2016. 63 See text accompanying notes 26-28 supra. 15 By order of court dated April 27, 2016, the court granted the motion for interim 64 distribution. Nothing in the order purported to dispose of pending objections to the account. With respect to the portion of the motion requesting that Appellant be directed to supply the addresses of his children, the order provided as follows: To the extent that Notice of the proposed distribution may be appropriate with respect to the children of Robert M. Mumma, II, and he fails to provide movant’s counsel with their addresses in writing within 10 days of the date of this order, such notice as movant deems appropriate may be provided by publication, once in a newspaper of general circulation in 65 Cumberland County and once in the Cumberland Law Journal. Appellant included this order of April 27, 2016, in his notice of appeal filed on May 5, 2016. In the meantime, on January 28, 2016, Appellant filed in this court his fourth 66 petition or motion to remove Lisa M. Morgan as executrix and trustee. In response to this petition, the court issued a rule upon all interested parties to show cause why the 64 Order of Court, dated April 27, 2016. With respect to notification of Appellant’s children regarding the distribution, the court authorized such notice to be provided by publication in the event that Appellant continued to refuse to provide their addresses to the accountant. Id. Distributions in the absence of such an order, while not prohibited, are “at \[the fiduciary’s\] own risk.” Pa. O.C.R. 6.11(b). The order indicated, incorrectly, that the distribution had already been approved once. 65 Order of Court, dated April 27, 2016. 66 Petition To Remove Lisa M. Morgan as Co-Executrix of the Estate of Robert M. Mumma and Trustee of the Marital Trust and Residuary Trust Created under the Will of Robert M. Mumma, Deceased, filed January 28, 2016; see Petition for Removal of Executors and Trustees, filed February 10, 1989; Petition for Removal of Barbara McK. Mumma and Lisa M. Morgan as Executrixes \[sic\] and Trustees, filed May 14, 2003; Further Motion for Removal of Executrices and/or Trustees Pursuant to Orphans’ Court Order of October 3, 2007, filed May 30, 2008. In addition to filing motions or petitions to remove Ms. Morgan, Appellant has tried to control her actions as a fiduciary without removing her. See, e.g., Petition of Robert Mann Mumma, II To Obtain from the Estate of Robert M. Mumma All Documents Showing Present or Prior Ownership of Shares in the Following Entities: Lebanon Rock, Inc., High Spec. Inc. Pennsylvania Supply Company, bobali, Corporation, Kim and Kin and Kim Company and All Information Provided to the Internal Revenue Service To Determine the Fair Value of Those Interests, filed May 3, 2001 (request for injunction); Petition of Robert M. Mumma II, Barbara Mann Mumma and Linda Mumma Roth for Order Enjoining Lisa M. Morgan, Trustee, from Certain Actions as Shareholder of High Spec, Inc., filed April 25, 2013. 16 relief should not be granted and directed that answers be filed and depositions conducted 67 for purposes of making an evidentiary record on the issue. Given Appellant’s judicially-recognized practice of attempting to “relitigate every 68 matter which had been determined” previously, a motion for a protective order was filed on behalf of Lisa M. Morgan with respect to depositions conducted pursuant to the 69 order. This motion produced the following order of court, dated April 8, 2016: 1) With respect to the deposition of Lisa M. Morgan, noticed by Robert M. Mumma, II, proceeding pro se, it is ordered and directed as follows: a. In the event of an objection by Lisa M. Morgan to a question, except as to form, she shall not be required to answer the question pending a ruling by the Court directing her to do so; b. Within five days of the completion of the deposition, and to the extent that the party deposing Lisa M. Morgan wishes to pursue a question to which she objected, the court will entertain a motion to direct her to respond at a second deposition; and c. In general, questions intended to relitigate previously decided issues or to revisit events predating the most recent petition to remove or regulate the conduct of Lisa M. Morgan filed by Robert M. Mumma, II, will not be deemed appropriate. 2) With respect to any deposition not yet noticed, the motion of Lisa M. Morgan is 70 deemed premature. Appellant included this order of April 8, 2016, in his notice of appeal filed May 5, 2016. DISCUSSION Order dated April 8, 2016, relating to deposition procedure. As noted previously, the order dated April 8, 2016, respecting the procedure to be employed during the deposition of fiduciary Lisa M. Morgan, would seem to be an interlocutory order of a 67 Order of Court, dated February 23, 2016. The order provided for disposition of the petition under Pa. R.C.P. §206.7. On May 26, 2016, the court granted Appellant’s motion, over objection, for an extension of time to take the deposition of Lisa M. Morgan. Order of Court, dated May 26, 2016. 68 See text following note 40 supra; In re Estate of Mumma, 2015 PA Super 209, ¶__, 2015 Pa. Super. LEXIS 569, at 32-35, 125 A.3d 1205, 1220. 69 Motion of Lisa M. Morgan for Protective Order, filed March 29, 2016. 70 Order of Court, dated April 8, 2016. 17 71 type not immediately appealable. On the merits, it is well recognized that trial courts are accorded a certain amount of discretion in “the management and conduct of” proceedings 72 before them. In the present case, the order complained of did nothing more than establish a procedure for consideration by the court of objections to deposition questions and to try to discourage Appellant from pursuing issues that had been previously litigated or waived. Order dated April 27, 2016, relating to an interim distribution. Interim, or partial, 73 distributions, with court approval, in the case of trusts are not uncommon. In the present case, the proposed distributive share of each beneficiary (one-fourth) with respect to the residuary trust was not a subject of objection, and the amount of the total proposed distribution was not significant relative to the size of decedent’s estate. A fair reading of Appellant’s statement of errors complained of on appeal indicates that he proposes to relitigate the issue of whether in-kind distributions of residuary trust assets should have been made earlier and to pursue his position that the residuary trust was underfunded, neither of which would seem to invalidate the minimal distributions proposed. Furthermore, the order appealed did not, as claimed by Appellant in his statement of errors complained of on appeal, direct that he disclose the addresses of his children. It did nothing more than permit the accountant to provide such notice as she deemed appropriate of the proposed distribution to Appellant’s children by publication in the event Appellant chose not to provide their addresses. BY THE COURT, __________________ J. Wesley Oler, Jr., S.J. 71 In a case involving a decedent’s estate, confirmation of the final account is normally the final, appealable order, subject to exceptions being filed and resolved by the orphans’ court. In re Estate of Cherwinski, 2004 PA Super 305, 856 A.2d 165. 72 Yoskowitz v. Yazdanfer, 2006 PA Super 120, ¶16, 900 A.2d 900, 906. 73 See, e.g., Nevil Estate, 414 Pa. 122, 199 A.2d 419 (1964). 18 Robert M. Mumma, II Box F Grantham, PA 17027 Appellant Richard F. Rinaldo, Esq. Williams Coulson, LLC 16th Floor One Gateway Center Pittsburgh, PA 15222 Attorney for Appellee Barbara M. Mumma Ivo V. Otto, IV, Esq. George B. Faller, Esq. Martson Law Offices 10 East High Street Carlisle, PA 17013 Attorney for Appellee Lisa M. Morgan, Esq. Brady L. Green, Esq. Wilbraham Lawler & Buba 31st Floor 1818 Market Street Philadelphia, PA 19103 Attorney for Appellee Lisa M. Morgan, Esq., Linda M. Mumma P.O. Box 70 Mechanicsburg, PA 17055 Appellee, pro Se Anthony L. DeLuca, Esq. 113 Front Street Boiling Springs, PA 17013 Auditor (courtesy copy) 19