In Re: Estate of Robert M. Mumma ( 2017 )

J-A26013-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ESTATE OF ROBERT M. MUMMA, IN THE SUPERIOR COURT OF
DECEASED PENNSYLVANIA
APPEAL OF: ROBERT M. MUMMA, II
No. 319 MDA 2017
Appeal from the Order Entered January 31, 2017
In the Court of Common Pleas of Cumberland County
Orphans' Court at No(s): 21-86-398
BEFORE: BOWES, OLSON, AND RANSOM, JJ.
JUDGMENT ORDER BY BOWES, J.: FILED OCTOBER 02, 2017
Robert M. Mumma, II, appeals from an order entering a monetary
award in favor of the executrix of this estate after Appellant withdrew a
petition for her removal. The award was accorded on the basis that the
petition for removal was arbitrary and vexatious, warranting an award in
favor of the executrix under 42 Pa.C.S. § 2503(9).1 We quash this appeal as
taken from an interlocutory order.
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1
That statute provides that the “following participants shall be entitled to a
reasonable counsel fee as part of the taxable costs of the matter . . . [a]ny
participant who is awarded counsel fees because the conduct of another
party in commencing the matter or otherwise was arbitrary, vexatious or in
bad faith.” 42 Pa.C.S. § 2503(9).
J-A26013-17
Robert M. Mumma died testate over thirty years ago. The distribution
of the assets of his estate has been delayed by numerous lawsuits brought
by Appellant, as a pro se litigant. There have been at least sixteen previous
appeals filed by Appellant to this Court, and the estimated costs to the
estate from Appellant’s vexatious and specious lawsuits has been
approximately five million dollars. The present appeal concerns a January
28, 2016 petition Appellant filed for removal of the executrix of the estate,
Lisa M. Morgan, which was Appellant’s second petition seeking her removal.
Ms. Morgan filed a protective order seeking to prevent Appellant from
questioning her at a deposition about matters that were previously litigated,
and the court entered an order permitting Ms. Morgan the right to refuse to
answer questions delving into such issues.
Appellant filed a motion for extension of time to depose Ms. Morgan,
the motion was granted based upon Appellant’s representation that she
agreed to the extension, and then the motion was denied after Ms. Morgan
reported that she had not agreed to an extension. A hearing was scheduled
on the petition for removal for July 27, 2016. On that day, Appellant
attempted to withdraw the petition for removal and did not appear at the
hearing. Ms. Morgan asked for a monetary award under § 2503, and the
trial court ordered Appellant to pay $25,000 for legal fees incurred in
connection with the petition to remove Ms. Morgan. This appeal followed.
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This Court issued a rule to Appellant to show cause why this appeal
should not be quashed as interlocutory. Appellant invoked the collateral
order doctrine outlined in Pa.R.A.P. 313. That rule defines a collateral order
as “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 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). All elements of this
test must be satisfied, and the collateral order doctrine itself is narrowly
construed to avoid piecemeal litigation. Rae v. Pennsylvania Funeral
Directors Ass’n, 977 A.2d 1121, 1125 (Pa. 2009). As to the second prong
of the test, i.e., whether the issue is too important to be denied review, “[i]t
is not sufficient that the issue be important to the particular parties. Rather
it must involve rights deeply rooted in public policy going beyond the
particular litigation at hand.” Melvin v. Doe, 836 A.2d 42, 47 (Pa. 2003).
The present matter involves the imposition of attorney fees between
private parties, and clearly and unequivocally does not involve a right deeply
rooted in public policy that extends beyond the present litigation. Moreover,
Appellant can obtain review of the propriety of the entry of attorney fees
against him in a appeal from the final order of distribution of the assets of
the estate. Thus, the issue is not one that will be incapable of being
reviewed if we delay appellate consideration of the question until a final
order is entered herein.
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Appellee’s Motion for Extension of Time to File a Brief is Denied.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/2/2017
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