J-A18024-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF ROBERT M. MUMMA, 

DECEASED

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

APPEAL OF: BARBARA M. MUMMA

Appellant No. 1003 MDA 2013

Appeal from the Order Entered on May 10, 2013

In the Court of Common Pleas of Cumberland County

Orphans’ Court at No.: 21-86-398

IN RE: ESTATE OF ROBERT M. MUMMA, 

DECEASED

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

APPEAL OF: ROBERT M. MUMMA, II

No. 1027 MDA 2013

Appeal from the Order Entered on May 10, 2013

In the Court of Common Pleas of Cumberland County

Orphans’ Court at No.: 21-86-398

IN RE: ESTATE OF ROBERT M. MUMMA, 

DECEASED

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

APPEAL OF : ROBERT M. MUMMA, II

No. 1028 MDA 2013

Appeal from the Order Entered on May 10, 2013
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In the Court of Common Pleas of Cumberland County

Orphans’ Court at No.: 21-86-398

IN RE: ESTATE OF ROBERT M. MUMMA, 

DECEASED

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

APPEAL OF: ROBERT M. MUMMA II

Appellant No. 1222 MDA 2013

Appeal from the Order Entered on June 7, 2013

In the Court of Common Pleas of Cumberland County

Orphans’ Court at No.: 21-86-398

BEFORE: LAZARUS, J., WECHT, J., and MUSMANNO, J.

MEMORANDUM BY WECHT, J.: FILED OCTOBER 24, 2014

Appellants Robert Mumma, II (“Mumma”), and Barbara Mumma 

collectively challenge three orphans’ court orders pertaining to the 

administration of the estate of Robert M. Mumma (“Testator”). The orders in 

question do not reflect a final accounting of the estate and testamentary 

trusts, but rather are interim orders. Specifically, two May 10, 2013 orders 

authorized Lisa M. Morgan (“Morgan”), in her role as executrix of Testator’s 

estate and administrator of the marital and residuary trusts provided for 

therein, to liquidate certain real estate holdings for the purpose of 

distributing the proceeds equally amongst the four remaining beneficiaries of 

the trusts. The June 7, 2013 order appealed only by Mumma reflected the 

orphans’ court’s refusal to vacate its earlier July 30, 2012 order authorizing 
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Morgan to liquidate certain life insurance policies for inclusion in, and 

ultimate distribution from, the estate to the remaining beneficiaries. After 

careful review of the record and the arguments of the parties, we are 

constrained to conclude that we lack jurisdiction to consider appeals from 

any of these orders at this juncture. The orders in question are interlocutory 

orders that do not qualify for any exception to the general rule that this 

Court will consider only appeals from orders that dispose of all issues as to 

all parties to the underlying litigation. Consequently, we must quash the 

instant appeals and remand.

It would be impracticable to provide a comprehensive account of the 

history of the disputes underlying this case, which span nearly thirty years 

since Testator passed on in 1986.1 We find sufficient the orphans’ court’s 

recounting of the events and proceedings relevant to the instant appeal, as 

follows:

On January 6, 1999, Mumma petitioned th[e orphans’] court for 

an accounting of the estate of his father, Testator, who died 

testate on April 12, 1986. Testator’s will and the codicil thereto 

were probated on June 5, 1986. The will appoints Mrs. Barbara 

McK. Mumma (“Widow”), Testator’s widow, now also deceased, 

and Morgan, Testator’s daughter, as executrices thereof and as 

____________________________________________

1

The orphans’ court has enumerated four prior instances in which 

Mumma appealed issues arising in this matter since 2005, three of which we 

quashed and a fourth in which we affirmed the orphans’ court order in 

question. The orphans’ court further notes that Mumma presently is 

embroiled in separate litigation in Florida concerning his late mother’s 

estate. See Orphans’ Court Opinion at 1 n.2. This summary is by no means 

exhaustive.
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trustees of a marital trust and a residuary trust created 

thereunder.[2] Under the will, the presumptive remaindermen of 

the trusts, if they survive Widow, are Testator’s children: 

petitioner Mumma, Linda M. Mumma (“Linda Mumma”), Barbara 

M. Mumma (“Barbara Mumma”), and Morgan. Testator 

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 Widow during her lifetime, the 

principal to be distributed to Testator’s children upon Widow’s 

death. In addition, Testator gave his residuary estate to his 

testamentary trustees to be held in trust exclusively for the 

benefit of Widow during her lifetime, the principal to be paid to 

Testator’s children upon her death.

Widow and Morgan filed interim accounts of their acts and 

transactions as executrices and as trustees on August 9, 1991.

Mumma disclaimed his interest under the will in 1987. In 1989, 

former President Judge Harold E. Sheely of [the orphans’] court 

granted Mumma’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.

Mumma eventually asked for a complete accounting of the 

estate, including an accounting of the trusts in which he claimed 

an interest. Widow and Morgan claimed in response that they 

could not provide an accounting to Mumma because he did not 

have standing, and the issue of the revocation of his disclaimer 

had not been fully litigated.

____________________________________________

2 Because Morgan undisputedly is the trustee of both trusts, and it 

further is undisputed that the corpora of the trusts are ripe for distribution 

among their beneficiaries (this appeal involving only disputes pertaining to 

authority to distribute and the form of distribution), the distinction between 

the holdings of the respective trusts is immaterial to the analysis that 

follows. Consequently, we largely refer to the trusts collectively as such.
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The position of the executrices/trustees was rejected by the 

[orphans’] court, and an accounting by the executrices/trustees 

was ordered on February 23, 2000.

An exhaustive further history of the estate, to the current date, 

is now available by way of a 130-page final auditor’s report, filed 

August 7, 2013.

The first interim order referred to above, authorizing the sale of 

realty known as the UPS Property [“Order I”], had its inception 

in a Petition to Authorize Plan of Liquidation filed on April 5, 

2012, by Morgan, who had been appointed by her father as 

executrix and trustee of [the] marital and residuary trusts under 

his will, followed by a Petition to Authorize Sale of Real Estate in 

Testator’s residuary trust filed by Morgan on May 30, 2012, 

followed by a Supplemental Petition to Sell Real Estate filed by 

Morgan on August 28, 2012. The petitions related, in whole or 

in part, to a request to sell the UPS Property, which had been 

appraised in 2010 at $205,000, for $350,000. It may be noted 

that real estate alone in the marital and residuary trusts in this 

multi-million-dollar estate was appraised in 2010 at almost 

$20,000,000.

The order being appealed was issued in accordance with a 30-

page interim report and recommendation of the auditor, to 

whom the issue had been referred. . . . The order recommended 

by the auditor was entered by the court without solicitation of 

further argument . . . :

AND NOW, this 6th day of May, 2013, upon the 

recommendation of the auditor in this case, it is hereby 

ordered that the Petition of Morgan to authorize the sale of 

the UPS Property is hereby granted.

The entry of this order was consistent with a recognition of 

Morgan’s discretionary fiduciary powers and duties under 

Testator’s will, which were acknowledged by the Superior Court 

in the context of an earlier attempt by her brother to thwart her 

administration by the device of disqualification:

With respect to the distribution of assets to the four sibling 

beneficiaries, the [orphans’] court determined that 

Morgan’s testimony established she is completing the 

process of obtaining valuations of the estate and trust 

assets and has asked the beneficiaries if they have a 

preference regarding the receipt of any particular assets or 
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cash and that she intends to make an equitable 

distribution of the assets to the beneficiaries after 

collecting the information. We agree with the [orphans’] 

court that this approach does not constitute any breach of 

fiduciary duty. Testator specifically provided Morgan, in 

her role as 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.” Testator 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 beneficiaries hereof.”[3]

Although court approval of the sale was not legally required, the 

unfortunate dynamics of the estate have resulted, as Morgan’s 

counsel suggested, in a situation where no reasonable buyer 

would be willing to spend $350,000 on an asset from it without a 

court order sanctioning the transfer. Objections raised to the 

sale of the UPS Property at a price far in excess of its appraised 

value, such as the sale’s possible diminution of the value of 

another piece of estate realty, were either unsupported by any 

competent evidence from which such a conclusion could 

justifiably be drawn, or legally untenable, or both. A full 

explication of the rationale for the order is contained in the 

auditor’s interim report and recommendation . . . .

The second interim order referred to above [“Order II”] also had 

its inception in the aforesaid Petition to Authorize Plan of 

Liquidation filed on April 5, 2012, by Morgan. The petition 

recounted the more than quarter-century history of the estate 

without closure and the lack of cooperation of the remaindermen 

of the estate’s marital and residuary trusts with the trustee’s 

attempts to proceed with a liquidation of assets following the 

trusts’ terminations, and sought permission of the court to 

proceed with an orderly liquidation of the same.

The purposes of this petition, in light of the history of 

[Mumma’s] obstruction of Morgan’s administration of the estate, 

was explained by her counsel as follows:

____________________________________________

3

In re Estate of Mumma, 41 A.3d 41, 50 (Pa. Super. 2012).
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Absent an agreement, what Morgan is asking for leave to 

do is exactly what would be necessary. It’s not as though 

these assets will be sold in a heartbeat. They’re not going 

to be liquidated at a fire sale value.

I don’t perceive that there’s any real risk that she’ll sell the 

properties at below value or what have you. Any fiduciary 

could do that. But, of course, that’s why we have a 

fiduciary duty, that’s why we have the standards and the 

ability to surcharge a fiduciary who runs amok.

But the process should begin, and Morgan should be at

liberty to be able to discuss with potential buyers and talk 

with potential buyers or even feel out the market or have 

someone do it on her behalf with the knowledge that she 

has the authority to deliver.

As with the first interim order discussed above, the second 

interim order being appealed was issued in accordance with the 

aforesaid 30-page interim report and recommendation of the 

auditor, to whom the issue had been referred. . . . The order 

recommended by the auditor was entered by the court without 

solicitation of further argument . . . :

AND NOW, this 6th day of May, 2013, upon the 

recommendation of the auditor in this case it is hereby 

ordered that the request of Morgan, that she be authorized 

to proceed with a plan of liquidation[,] is hereby granted. 

Morgan is authorized and directed to proceed with a plan 

of liquidation of the assets remaining in the trusts 

established under the Seventh Section and the Eighth 

Section of the last will and testament of Testator, and 

following receipt by this court of its Order regarding the 

accounts previously filed[,] to distribute then remaining 

assets among and between the named beneficiaries in 

equal shares without further order of this court.

Again, court approval of the liquidation process was not required 

under the terms of the will, and as the Superior Court indicated 

in the context of a prior challenge to Morgan’s fiduciary 

conduct[,] she was not obliged to attempt the impossible task of 

an immediate in-kind division of assets among the disputatious 

remaindermen upon the trusts’ terminations. The order now on 

appeal does not purport to adjudicate title to specific items of 

property or to dispose of the myriad of objections that have been 

filed to accounts in this matter.35 Distributions by Morgan 
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inconsistent with the ultimate resolution of those objections 

would obviously involve a personal risk that she might not 

choose to incur in the absence of satisfactory releases.36

_______________________________

35 It is noted that the final 130-page auditor’s report in 

this case, filed as of August 7, 2013, does recommend that 

all the objections be dismissed.

36 It may be noted, however, that the final auditor’s report 

has recommended that all of the objections be dismissed 

and the accounts confirmed.

The final interim order referred to above also had its inception in 

the aforesaid Petition to Authorize Plan of Liquidation filed on 

April 5, 2012, by Morgan. The petition recited the ownership 

interests of the parties herein in a company known as 

D.E. Distribution Corporation . . . , noted the company’s 

ownership of certain life insurance policies, and sought 

permission to cash in the policies and distribute the proceeds to 

the parties in accordance with their interests in the corporation. 

This issue was included among those referred to the auditor for 

an interim report and recommendation.

Orphan’s Court Opinion (“O.C.O.”), 8/30/2013, at 6-14 (minor modifications 

to nomenclature, other terminology, and formatting for clarity; most 

footnotes omitted).

Following the above-reviewed proceedings and orders, the parties filed 

facially interlocutory appeals as follows: On June 4, 2013, at 1003 MDA 

2013, Barbara Mumma filed a notice of appeal from the orphans’ court’s 

order dated May 10, 2013, which authorized Morgan to prepare and execute 

a liquidation plan for the assets remaining under the trusts established under 

Testator’s will. On June 10, 2013, Mumma filed two notices of appeal that 

were docketed respectively at 1027 and 1028 MDA 2013. The orders at 
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issue in those cases included the same order challenged by Barbara Mumma 

and the separate May 10, 2013 order authorizing the liquidation of the UPS 

Property. On July 8, 2013, Mumma timely filed an appeal at 1222 MDA 

2013 of the orphans’ court’s June 7, 2013 order. In that order, the orphans 

court denied Mumma’s “Petition to Compel Compliance with [the] Court’s 

Order Dated July 30, 2012, and for Sanctions and Alternatively, to Vacate 

Said Order.” The July 30, 2012 order authorized Morgan to liquidate and 

distribute certain life insurance policies.

On July 12, 2013, this Court sua sponte consolidated the appeals 

docketed at 1003, 1027, and 1028 MDA 2013 for decision. On September 9, 

2013, this Court entered a sua sponte order consolidating 1222 MDA 2013 

with the three previously-filed appeals. 

On June 7 and June 18, 2013, the orphans’ court filed orders directing 

the appellants to file concise statements of errors complained of on appeal 

pursuant to Pa.R.A.P. 1925(b). The parties timely complied, and the 

orphans’ court entered the above-excerpted Rule 1925(a) opinion on August 

30, 2013.

On July 23, 2013, Morgan filed in this Court an Application to Quash 

Mumma’s and Barbara Mumma’s appeals. On August 12, 2013, Barbara 

Mumma filed a response in opposition to that application.4 On September 9, 

____________________________________________

4 Mumma did not file a separate opposition to Morgan’s motion.
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2013, this Court filed a per curiam order denying the motion to quash 

without prejudice to raise the issue before the panel assigned to this matter. 

For the reasons that follow, we find that this Court lacks jurisdiction over 

this interlocutory appeal. Consequently, we grant Morgan’s motion to quash 

these appeals and remand.

Our analysis begins and ends with Morgan’s motion to quash the 

instant appeals.5 Pennsylvania Rule of Appellate Procedure 341 provides 

generally that appeals may be taken as of right only from final orders. 

Pa.R.A.P. 341. A final order is any order that “disposes of all claims and of 

all parties,” “is expressly defined as a final order by statute,” or “is entered 

as a final order pursuant to” Rule 341(c). Pa.R.A.P. 341(b). Rule 341(c) 

permits the trial court to “enter a final order as to one or more but fewer 

than all of the claims and parties only upon an express determination that 

an immediate appeal would facilitate resolution of the entire case.” 

____________________________________________

5

In her motion, Morgan refers only to Mumma’s appeals docketed at 

1027 and 1028 MDA 2013, excluding by omission 1003 and 1222 MDA 2013. 

However, her exclusion of two of the orders before this Court does not 

preclude our review of our subject matter jurisdiction. Morgan raises a 

colorable claim regarding our jurisdiction, and we must address that issue 

regardless of whether or when it was raised. See Grom v. Burgoon, 

672 A.2d 823, 824-25 (Pa. Super. 1996) (“[T]he question of subject matter 

jurisdiction may be raised at any time, by any party, or by the court sua 

sponte.”). When determining whether we have subject matter jurisdiction, a 

question of law, our standard of review is de novo and the scope of our 

review is plenary. Corbett v. Locust Twp., 968 A.2d 1263, 1269 

(Pa. 2009).
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However, “in the absence of such a determination and entry of a final order, 

any order or other form of decision that adjudicates fewer than all the claims 

and parties shall not constitute a final order.” Pa.R.A.P. 341(c).

Qualifying Rule 341 are two rules that arguably pertain to this case, 

both of which are discussed by Morgan and in Barbara Mumma’s response to 

Morgan’s motion. Rule 313 provides that an appeal may be taken as of right 

from a collateral order, which 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 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).

Barbara Mumma relies foremost upon Rule 342, which provides, in 

relevant part, as follows:

(a) General rule. An appeal may be taken as of right from 

the following orders of the Orphans’ Court Division:

(1) An order confirming an account, or authorizing or 

directing a distribution from an estate or trust;

* * *

(6) An order determining an interest in real or 

personal property . . . .

Pa.R.A.P. 342. In her opposition to Morgan’s motion, Barbara Mumma cites 

no case law to support her argument that this Court should find jurisdiction 

based upon these provisions. However, our Supreme Court and this Court 

recently have taken up the question under similar circumstances.
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In In re Estate of Stricker, 977 A.2d 1115 (Pa. 2009), our Supreme 

Court held that an orphans’ court’s order to sell real estate in connection 

with the disposition of an estate was an interlocutory order that was not 

appealable under Rule 313 or former Rule 342.6 In that case, two tracts of 

land constituted the bulk of the decedent’s estate, which was to be disposed 

of by two co-executors, one of whom was the appellant, in favor of 

approximately ten beneficiaries. One tract was subject to a third party’s 

option to repurchase the property, which the third party had exercised. The 

remaining tract was put up for auction, where John Fulton made the highest 

bid. The orphans’ court directed the estate to deliver that tract to Fulton. 

Id. at 1116-17.

Before the auction occurred, the appellant co-executor had made 

multiple below-market value offers to buy both tracts. His co-executrix and 

the beneficiaries rejected the offers. Although the appellant participated in 

the public auction for the unrestricted property, Fulton’s bid not only 

exceeded the appellant’s, but indeed exceeded the appellant’s prior offers 

for both tracts combined. The appellant thereafter refused to cooperate in 

the transfer of either tract. The co-executrix then petitioned the court to 

compel the appellant to sign the agreement of sale disposing of the tract 

____________________________________________

6 Rule 342 was amended, effective February 12, 2012, in ways that are 

reflected in the reproduction immediately supra. These amendments factor 

into the instant jurisdictional question in ways discussed at length, infra.
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purchased by Fulton. The orphans’ court entered an order so directing, and 

the appellant appealed the orphans’ court’s order. This Court quashed that 

appeal as interlocutory. On remand, the orphans’ court ruled that the coexecutors were bound to take the necessary steps to consummate the sale 

of one tract. Similarly, the orphans’ court directed that the co-executors 

take the necessary steps to complete the sale of the other tract to Fulton. 

Id. at 1117.

Once again, the appellant sought relief in this Court, and once again 

this Court quashed the appeal for want of jurisdiction. First, we held that 

the orders were not final because a final accounting of the estate had not 

been rendered. Second, we held that the orders appealed from were not 

appealable under the collateral order doctrine as embodied by Rule 313. Id. 

The Supreme Court granted the appellant’s petition for allowance of 

appeal to address whether the orders in question were final pursuant to 

Rules 341 and 342 or were collateral orders that were appealable as of right 

pursuant to Rule 313. Id. The Court made the following observations:

Rule 342 allows Orphans’ Court judgments to designate as final 

(and therefore immediately appealable) an order “making a 

distribution, or determining an interest in realty or personalty or 

the status of individuals or entities.” Pa.R.A.P. 342. It does not 

require that any particular class of orders be treated as final, but 

instead leaves the determination of finality of orders not 

disposing of all claims and all parties up to the Orphans’ Court 

judge. Pa.R.A.P. 342(1). Certification under Rule 342 is wisely 

left to the discretion of the Orphans’ Court[ judges], who are in 

the best position to take the facts of the case into account when 

deciding whether an immediate appeal would be appropriate.
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“It is fundamental law in this Commonwealth that an appeal will 

lie only from final orders, unless otherwise expressly permitted 

by statute.” T.C.R. Realty, Inc., v. Cox, 372 A.2d 721, 724 

(Pa. 1977). An appeal from an order directing the administrator 

of a decedent’s estate to sell real estate belonging to the 

decedent is interlocutory and must be quashed. In re 

Maslowski’s Estate, 104 A. 675 (Pa. 1918); In re Estate of 

Habazin, 679 A.2d 1293 (Pa. 1996); see also Appeal of 

Snodgrass, 96 Pa. 420, 421 (Pa. 1880) (holding that an order 

directing sale of real estate for payment of decedent’s debts is 

not definitive, and an appeal will not lie therefrom: “Why should 

the proceeding be brought here by piece-meal when the whole 

may be reviewed on an appeal from the final confirmation?”).

Id. at 1117-18 (citations modified).

The appellant argued that, if he was not afforded an immediate 

appeal, “the tracts [would] be sold, his claims regarding the properties 

[would] be lost, and therefore the orders should be considered final.” 

Id. at 1118. Our Supreme Court’s response was telling:

It is true that the real estate will no longer be available to [the 

appellant] once a sale to another party is accomplished. But 

[the appellant] was not bequeathed the tracts themselves. 

Instead, [the appellant] is entitled only to a share of the 

decedent’s estate after it has been liquidated. Therefore, his 

claim that an immediate appeal is necessary to protect his 

interests fails. Indeed, [the appellant] has no greater rights with 

respect to this property than any potential buyer. Moreover, if 

[the Court] accepted [the appellant’s] argument that any claim 

on or about property that might be sold during the probate 

process should be immediately appealable, the appellate court 

system would be flooded with such appeals and the 
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administration of decedents’ estates would be unreasonably 

delayed.[7]

Id. at 1118; cf. id. at 1119-21 (Saylor, J., concurring) (positing that 

immediate appeal in certain circumstances might expedite disposition of the 

estate). The Court went on to explain that “an order is not final and 

appealable merely because it decides one issue of importance to the 

parties.” Id. at 1118 (quoting 3 Patridge-Remick, Practice & Procedure in 

the Orphans’ Court of Penna. § 26.04).

The Court also held that the order in question was not a collateral 

order entitled to immediate review under Rule 313. Noting that, “to qualify 

as collateral, an order must be separable from the main cause of action,” 

and that the collateral order doctrine “is to be construed narrowly to 

preserve the integrity of the general rule that only final orders may be 

appealed,” the Court held that “it is not possible that an order to sell estate 

property in pursuit of” in furtherance of the final accounting and 

distribution of the estate provided for by the will could be “collateral to the 

main cause of action.” Id. at 1119 (emphasis added). To the contrary, the 

Court found, it was “central to the main cause of action.” Id. (emphasis in 

original). Thus, the order in question did not qualify for immediate appeal as 

a collateral order under Rule 313.

____________________________________________

7

In light of this case’s procedural history, and in particular Mumma’s 

penchant for filing appeal after appeal in this Court, we cannot write off 

these comments as hyperbolic or hypothetical. 
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After Stricker, however, the Supreme Court amended Rule 342. No 

longer was the question of appealability vested strictly in the orphans’ court. 

Rather, the revised rule identified certain orders that would henceforth be 

appealable as of right, independent of any orphans’ court finding regarding 

the nature of the order and its place in the proceedings. As noted, in 

relevant part, Barbara Mumma argues that subsections (a)(1) or (a)(6) 

apply in this case.8 These subsections respectively designate orphans’ court 

orders that either “confirm[] an account, or authoriz[e] or direct[] a 

distribution from an estate or trust” or “determin[e] an interest in real or 

personal property” as immediately appealable. Pa.R.A.P. 342(a)(1), (6). 

Such orders, moreover, must be appealed within thirty days of their entry 

or the right to appeal them will be deemed waived. Pa.R.A.P. 342(c); see 

Pa.R.A.P. 903(a) (prescribing thirty-day time limit).

This Court interpreted and applied amended Rule 342 in In re Estate 

of Ash, 73 A.3d 1287 (Pa. Super. 2013). In that case, the will at issue 

made specific cash bequests and directed that the remaining personal and 

____________________________________________

8

In addition to subsections (a)(1) and (a)(6), Barbara Mumma suggests 

in passing that subsections (2) (“An order determining the validity of a will 

or trust”), (3) (“An order interpreting a will or a document that forms the 

basis of a claim against an estate or trust”), and (4) (“An order interpreting, 

modifying, reforming, or terminating a trust”) also may apply to this case, 

but does not specify why she believes this to be the case. Answer to Motion 

to Quash Appeal at 4 n.3. We can discern no arguable basis upon which to 

align the orders subject to the instant appeal with any of those criteria. 

Accordingly, our discussion focuses exclusively upon subsections (a)(1) 

and (a)(6).
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real property be sold, with the proceeds to be divided among three residual 

beneficiaries. The appellant, Joseph Heit, was named executor; the 

remaining two beneficiaries were his brother James Heit and Duane Fetter. 

As executor, the appellant conveyed to himself (as an individual) a tract of 

land referred to as Tract 1, which he contended was consistent with an 

agreement of sale entered into with the decedent prior to his death. The 

orphans’ court set aside the sale, removed the appellant as executor, and 

appointed an administratrix in the appellant’s place. The appellant did not 

appeal that order. Id. at 1288.

Thereafter, Fetter indicated that he had entered an agreement with 

the decedent to purchase an adjoining tract (“Tract 2”), and signaled to the 

administratrix that he was willing to buy Tract 2 as well as the two adjoining 

tracts, Tract 1 and Tract 3. It appeared from the record that the 

administratrix intended to sell these tracts to Fetter. Thereafter, the 

appellant filed a “Petition to Force Sale of Real Estate,” wherein he asserted 

that he was willing to buy Tract 1. He also contended that Tract 1 would be 

landlocked unless an easement were granted over Tract 2. He asked the 

court to grant an order directing the administratrix to grant the easement 

over Tract 2 and stay the sale of Tract 1 until the parties’ various disputes 

regarding the property were resolved. The administratrix, however, 

indicated that it would be in the best interests of the estate to sell all three 

tracts to Fetter, both because the net proceeds would be greater and 

because it would avoid the prospect of litigation with Fetter. The orphans’ 
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court entered an order denying the appellant’s petition and authorizing the 

administratrix to enter into an agreement selling all of the tracts to Fetter, 

and the appellant appealed. Id. 1288-89.

We reviewed the case in light of the Supreme Court’s Stricker

decision, and found the facts in Ash to be apposite, notwithstanding the 

intervening amendment to Rule 342:

The order on appeal before us authorizes the administratrix to 

sell real estate formerly belonging to [Ash] in order to 

accomplish the eventual division of the estate assets (i.e., the 

sale proceeds) among the beneficiaries as directed by Ash’s will. 

Pursuant to Stricker, we conclude this order is neither final nor 

collateral but, instead, is interlocutory. . . .

In reaching our result, we are mindful that the Rules of Appellate 

Procedure addressing the appealability of Orphans’ Court orders 

have changed somewhat since Stricker was decided. . . . 

Effective February 13, 2012, the Supreme Court deleted from 

Rule 342 the provision concerning the ability of an Orphans’ 

Court to make determinations of finality and, instead, listed 

various orders that would be immediately appealable. See

Pa.R.A.P. 342(a). Among the orders listed in Rule 342 is an 

order determining an interest in real property. 

Pa.R.A.P. 342(a)(6).

We do not believe the order before us is one of the appealable 

orders set forth by Rule 342, whether in Subsection (6) or 

otherwise. Consequently, we do not believe Subsection (6) 

and/or any other post[-]Stricker change(s) to Rule 342 negate 

Stricker and render the order before us appealable. We 

understand the effect of the instant order will be to allow the 

realty sale and, if the administratrix sells the tracts, Fetter will 

come to own them. Thus, if the sale is completed, the order will 

eventually lead to a change in the ownership interest of the 

realty. Nevertheless, the Orphans’ Court decision now on appeal 

did not involve the court having to resolve some dispute about 

who had or has an interest in the tracts: The estate obviously 

owns them. The court’s decision was about . . . the propriety of 

her plan to reduce the estate assets to cash by sale to a 
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particular party, the goal being to distribute the sale proceeds in 

accordance with the will. The court’s decision was not about 

determining an interest in the subject realty. Accordingly, 

Stricker controls this case.

Id. at 1289-90 (citations modified; footnotes omitted). In a footnote, we 

acknowledged that certain language in the comment to the rule as amended, 

which drew upon Justice Saylor’s concurring opinion in Stricker, perhaps 

complicated the analysis. However, we concluded that if “the changes to 

Rule 342 were indeed meant to abrogate Stricker and . . . to transform an 

order such as the one before us into an order determining an interest in 

realty under Subsection (6), . . . that pronouncement should be made by the 

Supreme Court. At present, we will follow Stricker.” Id. at 1290 n.5.

Although Mumma does not directly engage the argument for quashal, 

leaving that task to Barbara Mumma, in his brief on the merits he raises one 

consideration that arguably distinguishes Ash and Stricker. The argument 

in question nominally addresses the merits rather than the justiciability of 

the appeal, but it is presented in a form that implicates the jurisdictional 

issue. Specifically, Mumma argues that the orphans’ court improperly 

directed Morgan to liquidate assets that are owned in substantial part by 

entities other than the estate. Brief for Mumma at 23-26, 34-36.

Unless Mumma’s characterization of the ownership of various interests 

and properties as fractional distinguishes this case dispositively from Ash

and Stricker, it is plain that Stricker, and by extension Ash, would compel 

us to rule that this appeal is interlocutory. In Ash and Stricker, as Mumma 
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observes, the estate’s ownership of the properties in question was, indeed, 

undisputed. Instead, solely at issue were questions pertaining to the 

executor’s authority to dispose of those properties in advance of distributing 

the proceeds and balance of the estates to the relevant beneficiaries. Thus, 

in effect, neither Barbara Mumma nor Mumma have posited any other basis 

upon which we might find that their invocations of Rule 342(a)(1) and (6) 

are not in vain under those precedents.

Accordingly, we must assess the accuracy of Mumma’s 

characterization of the relevant orphans’ court orders as directing the 

liquidation of property that the estate does not own. The first and more 

specific of the orders granted “the Petition of [Morgan] to authorize the sale 

of the real property owned by the Estate of [Testator], located on UPS Drive 

in Dauphin County and commonly referred to by the parties as ‘the UPS 

Property.’” Order I, 5/10/2013. The second order, in relevant part, 

provided as follows:

[U]pon the recommendation of the [a]uditor in this case it is 

hereby ordered that the request of [Morgan], that she be 

authorized to proceed with a plan of liquidation, is hereby 

granted. [Morgan] is authorized and directed to proceed with a 

plan of liquidation of the assets remaining in the trust[s] 

established under the Seventh Section and Eighth Section of the 

Last Will and Testament of [Testator], and following receipt by 

this Court of its Order regarding the accounts previously filed to 

distribute then remaining assets among and between the named 

beneficiaries . . . in equal shares without further order of this 

Court. 

Order II, 5/10/2013.
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Order II, in particular, does not clearly direct anything with respect to 

the specific circumstances of the fractional ownership of various assets. 

First, it directs the implementation of “a plan of liquidation of the assets 

remaining in the trust[s]” (emphasis added). It does not specify such a 

plan, nor does it respond directly or preemptively to any challenges to the 

prospective contours of such a plan. It stands to reason, as a matter of law 

and of common sense, that such a plan could have provided for the 

disposition of only those assets remaining in the trusts, whether fractional or 

otherwise. While it is true that Morgan might erroneously or improperly 

seek to sell interests that the trusts do not own, it is not at all clear that no 

remedy will lie in the event that she does so. Moreover, nothing in the 

language of Order II directs the sale of any assets not held by the trusts. 

Consequently, any disputes that occur with respect to the particular 

properties or interests that Morgan seeks to sell must be taken up as they 

arise, not hypothetically.9 

Order I, however, is more specific. That order calls for Morgan to 

authorize the sale of “the UPS Property,” which the court identified therein 

as “the real property owned by the [e]state of” Testator. Mumma’s point is 

that the orphans’ court did not direct the sale of the Trust’s interest in that 

property, but rather of the property in its entirety. 

____________________________________________

9 Cf. Silver v. Zoning Bd. of Adjustment, 112 A.2d 84, 87 (Pa. 1955) 

(“A court should not render advisory decisions on hypothetical facts.”). 
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Notably, the orphans’ court emphasized the limited scope of Orders I 

and II in terms directly responsive to Mumma and Barbara Mumma’s appeals 

to Rule 342(a)(1) and (6):

The order now on appeal does not purport to adjudicate title to 

specific items of property or to dispose of the myriad of 

objections that have been filed to accounts in this matter. 

Distributions by Morgan inconsistent with the ultimate resolution 

of those objections would obviously involve a personal risk that 

she might not choose to incur in the absence of satisfactory 

releases.

O.C.O. at 11 (footnotes omitted).

To the extent the orders speak to, or incorporate, Morgan’s prayers for 

relief—in itself, a debatable point—the orders do not appear to authorize or 

direct Morgan to sell what she or the interests she commands do not control. 

In connection with the UPS Properties, Morgan requested the following relief: 

“[Morgan] seeks an order from [the orphans’ court] authorizing her to 

proceed with the sale of the [UPS Properties], upon the terms and conditions 

of the Agreement [for Purchase and Sale].” Petition to Authorize Sale of 

Real Estate at 2. In connection with her broader liquidation petition, Morgan 

requested the following relief:

[Morgan] seeks an order from [the orphans’ court] authorizing 

her to engage a third party, experienced in the sale of real 

estate, to conduct an orderly exposure of the real estate owned 

by the Trusts, [D.E. Distribution, G-A-T Distribution, Mumma 

Realty Association I (“MRA I”) and Mumma Realty Association II 

(“MRA II”) (collectively, the “Tenancies-In-Common”)], to the 

market, for ultimate sale, with the net proceeds to be so 

distributed, and further to surrender the life insurance policies 

held by [D.E. Distribution] for the cash value of such policies, 
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thereby providing liquidity in the interim until the [t]rust’s assets 

may be converted to cash for ultimate distribution.

Petition to Authorize Plan of Liquidation at 6. 

In Morgan’s liquidation petition, she identified the relevant fractional 

ownership interests of the Tenancies-In-Common. The Tenancies-InCommon are owned in part by Mumma, Linda Mumma, Barbara Mumma,

and Morgan (individually). Additionally, the estate of Widow also has an 

interest in MRA I. Petition to Authorize Plan of Liquidation at 2-3. In her 

liquidation petition, Morgan asserted, and neither Mumma nor Barbara 

Mumma disputes, that the trusts and Morgan’s interests combined add up to 

87.3% of MRA I and 98.6% of MRA II, with the vast majority of those 

tenancies (81.8% and 98.1%, respectively) owned by the trusts. Id. In 

connection with the Tenancies-In-Common, owners are authorized to act, 

including the sale of “the entire Premises or any part thereof,” only by a 

majority vote weighted according to the respective shares of the tenants-incommon. MRA Agreement Among Tenants-in-Common, 12/19/1986, 

at 12 ¶4. But see id. at 8 ¶ 3 (providing restrictions upon, and a right of 

first refusal in association with, a tenant-in-common’s effort to sell his or her 

interest in the tenancy-in-common).

Morgan further asserts that the trusts own 50% of the stock of Union 

Quarries, Inc., with the remaining shares held by third parties with no 

relationship to the estate. As well, the trusts own a parcel of real estate in 

Cumberland County, Pennsylvania. Id. at 3. The trusts also own 27.2% of 
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the stock in D.E. Distribution, with additional shares distributed amongst the 

estate of Widow, Mumma, Linda Mumma, Barbara Mumma, and Morgan. 

Id. at 4. Thus, as executrix of Widow’s estate and the trusts, and in tandem 

with her own individual holdings in D.E. Distribution, Morgan controls 58.1% 

of that entity. The same pattern obtains with regard to G-A-T Distribution, 

of which the trusts own 80.1%, the estate of Widow owns 18%, and Morgan 

individually holds 0.5%, for a total share of approximately 98.6%. Id. at 4-

5.

While it is true that, in the liquidation petition, Morgan seeks to 

“expose” the real estate owned by various entities, she does not request 

that the court direct any certain corporate activity on the part of those 

entities, nor does she expressly seek to bypass any governing bylaws or 

agreements pertaining to them or to the Tenancies-In-Common that might 

be necessary to effectuate sale of those interests. At most, her prayer for 

relief relies upon the silent premise that such liquidations will be practicable 

because Morgan, in her various individual and representative capacities, has 

authority, through her constructive control of majority interests in the 

subject property (combining the trusts’ interests, the interests of the 

Widow’s estate—as to all of which Morgan serves as executor—and Morgan’s 

individual interests) to effectuate that result.

Given the generality of the orphans’ court’s orders, it is not for us to 

assess how, precisely, Morgan intends to or actually will seek to dispose of 

the trusts’ various assets and holdings in which the trusts hold exclusive or 
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fractional interests. To the extent this implicates corporate parties, there 

may be legitimate grounds for dispute as to her authority to act in the face 

of opposition. That, in turn, may form the foundation of a wholly separate 

legal action. Such a dispute would not be the first ancillary dispute resolved 

separately that is associated with the Mumma Estate. However, this does 

not by itself warrant a finding that the orphans’ court’s order is appealable 

as of right under Rule 342 or as a collateral order under Rule 313.10 It 

simply does not materially distinguish this case from Stricker and Ash. 

As well, we cannot overlook the fact that Morgan’s authority in this 

regard already has been decided by this Court in a prior decision:

[Testator] specifically provided 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.” 

[Testator] 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 

beneficiaries thereof.” 

Mumma, 41 A.3d at 50 (emphasis in original; citations omitted). In 

authorizing Morgan to make distributions in kind, Testator also gave Morgan 

the means to address any indivisible property interests or shares in 

____________________________________________

10 To the contrary, since Rule 313 was not amended in the wake of the 

Ash decision, there is little question that Ash controls the Rule 313 

argument in this case in favor of quashal.
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corporate entities. Whether she opts to resolve them in that fashion, rather 

than by liquidating them entirely, necessarily is conjectural at this juncture.

In light of these considerations, we interpret the orphans’ court’s 

orders as authorizing Morgan to liquidate the Trust’s assets. Because that 

liquidation is a condition precedent to a final accounting and distribution of 

the trusts, the orders do not “confirm[] an account, or authoriz[e] or direct[] 

a distribution from the trusts.” Pa.R.A.P. 342(a)(1). Because the events 

necessary to those steps have yet to occur, Rule 342(a)(1) does not apply to 

render Mumma’s and Barbara Mumma’s justiciable at this time.

Correlatively, we do not find that the orphans’ court’s orders were 

intended to authorize, or have the effect of authorizing, Morgan’s disposition 

of assets that the trusts do not own or do not own a controlling interest in, 

without regard to the separately prescribed procedures for, or restrictions 

upon, such actions. Nor do they “determin[e] an interest in real or personal 

property.” Pa.R.A.P. 342(a)(6). The mechanics of Morgan’s liquidation must 

be left to the agreements, bylaws, or laws that apply to the disposition of 

those assets, a matter for another day and perhaps another tribunal. In 

providing for the liquidation of the trusts’ assets, such as they are, the 

orphans’ court merely reaffirmed Morgan’s right to exercise the authority 

that was vested in Morgan by the terms of the governing estate documents, 

which already has been reaffirmed by this Court. Thus, the orphans’ court’s 

orders are no more appealable under Rule 342(a)(6) than they are under 

Rule 342(a)(1).
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When all of the peripheral matters are set aside, we are left with a 

circumstance that is not materially distinguishable from those that obtained 

in Stricker and Ash, in which the predominant issue was the executor’s 

authority to liquidate estate assets as he or she deemed appropriate in 

furtherance of a final accounting and distribution of the estate. An order 

authorizing an executor to liquidate assets held by an estate or trust, which 

is an order short of a final accounting of the estate in question, is an 

interlocutory order not subject to immediate appellate review. Accordingly, 

we lack jurisdiction to hear the instant appeal.

Appeal quashed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/24/2014