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1 The bottom line is there was no grand plan but
2 that begs the question. He had all this time to get counsel.
3 We prepared for two separate depositions neither of which
4 occurred, and we believe under your order he's in contempt,
5 and he had no real basis to do any of this. And certainly in
6 his letter to us at 2:52 p.m. on January 31st he doesn't even
7 mention the suit. At that point, he wasn't even served. He
8 just wants two more weeks to get counsel.
9 NOW, I understand he has counsel now for the
10 malpractice action only, not for this proceeding, but our
11 position is he's in contempt. He just failed to do anything
12 and did exactly the same as he did on December the 6th. He
13 waited 'til the last minute, almost two months later, and
14 then tells us it could affect his malpractice lnsurance. We
15 should notify our client that we could affect it could
16 affect a claim if we force him to the deposition and
17 ultimately showed up that morning after filing the petition
18 with you and said I'm not going to testify but instructed not
19 to and I'm not going to and that's the gist of it.
20 And we believe he's in contempt, and we expended a
21 ton of attorney fees preparing for two different depositions
22 neither of which occurred. So this is not a justification.
23 This isn't like a criminal case where he can't incriminate
24 himself. I mean, he just didn't do anything until the last
25 minute. Had he contacted counsel in December about the
6
1 scurrilous allegations as he described them in our petition,
2 which he read, he had an obligation to put his carrier on
3 notice of a potential claim at that point. We certainly
4 could have worked this out, had counsel involved, dealt with
5 it before the day before the deposition. So our position is
6 that he's clearly in contempt. He did nothing to deal with
7 it.
8 THE COURT: okay. Before I hear from you, sir,
9 there are other attorneys here.
10 MR. GILROY: Morning, Judge.
11 THE COURT: Good morning.
12 MR. GILROY: Hubert Gilroy. I represent the
13 beneficiaries, two beneficiaries, Linda Stull and Linwood B.
14 phillips, and with me 1S seth Mosebey from my office on
15 behalf of George Faller, and Mr. Faller is representing the
16 executor Robert Frey -- or Rob Frey. And we're here because
17 your order told us to be here, but we're not intending to
18 take an active part in the proceedings.
19 THE COURT: You don't take any position?
20 MR. GILROY: That's correct.
21 MR. SCHWARTZ: Morning, Your Honor. My name 1S Ed
22 schwartz. I am counsel for Mr. Rominger 1n the collateral
23 malpractice action, and I'm not involved 1n this one.
24 THE COURT: So you were just -- you just got
25 involved?
7
1 MR. SCHWARTZ: I just received the assignment last
2 week, yes, Your Honor.
3 THE COURT: So you haven't had a chance to review
4 any of the pleadings?
5 MR. SCHWARTZ: I haven't received any of the
6 paperwork, Your Honor, NO, sir.
7 THE COURT: So you're not prepared to address
8 anything today?
9 MR. SCHWARTZ: 11m actually not involved in this
10 estate matter. I'm in the collateral action only.
11 THE COURT: very good. Thank you. Mr. Rominger.
12 MR. ROMINGER: Your Honor, first, a couple things
13 I don't agree with in the record as presented. Number one, I
14 was never served with or provided any copy of a petition. I
15 was merely noticed of a deposition. I believe they'll have
16 no quarrel with that. They never sent me any of the
17 pleadings to see what was said. I, myself, have done a
18 number of actions to set aside prenuptial agreements and even
19 had Judge Guido testify one time, and I can tell you that at
20 the time I didn't think much of it. I figured this 1S a
21 standard challenge. I didn't know. I should have, but, at
22 the time of the first set of depositions, one of the other
23 lawyers involved in the case handed me the pleading and said
24 take a look at what -- so you know what's going on take a
25 look at this. And I had had a copy. somebody dropped one
8
1 off in my box, I think, because we have one at the office,
2 and it looks like it came through the courthouse box sometime
3 prior to that deposition. I had some inkling that it was
4 bad. when I got there, the one lawyer had mentioned to me
5 that perhaps you have a malpractice here. So I took the
6 position at the first deposition -- I had a bigger concern,
7 too, though. At neither of these depositions has Alice
8 phillips appeared. AS I understand it right now, she's never
9 actively waived the privilege of anything she told me at any
10 of these cases, which, quite frankly, if we had started the
11 deposition, that would have been the next thing brought up,
12 but I'll put that aside for the moment.
13 I then ended up at the second deposition but prior
14 to that my malpractice carrier -- I had not noticed them
15 because I had spoken about it with another lawyer that I'm
16 friends with, and he said it's a potential claim, but it
17 doesn't seem like an actual claim in the sense that it's
18 fruition. well, I got a fax from my malpractice carrier
19 saying that for this year, because we've been with them four
20 or five years, they want us to do an entire new application.
21 As I read through the application on the 31st in the morning,
22 I looked and I saw the one question. I'm going to set that
23 aside for a little bit, because I'm not sure if I can answer
24 that as a no because of this case. So I called and discussed
25 it with a gal at the coldburn Insurance. she told me to call
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1 a hot line number. I called the hot line number. This is ln
2 the morning I believe. They said somebody would call me
3 back, an attorney. They just took the basic information. I
4 gave the factual history. I got a call back later in the day
5 from the hot line attorney. He strongly suggested I not be
6 deposed, and I explained to him I was under a court order.
7 And he said see if there's any way you can set it aside,
8 convince these guys to postpone it temporarily while I try to
9 find counsel to review this. He's an out of state fellow.
10 So I sent a letter immediately over to Mr. vahn suggesting
11 that my carrier was suggesting I shouldn't be deposed and I
12 should in no circumstance go forward. I can tell you at the
13 time I sent him that letter had I not been noticed with the
14 writ, my intention was to go forward with the deposition.
15 Despite Mr. Connelly's claim that the sheriff had
16 this for so long, that's patently false. In fact, in
17 cumberland County generally it takes about two weeks from the
18 time the prothonotary receives a writ until the sheriff has
19 reliably executed service, and they don't usually attempt
20 within a few days. I took an emergency custody matter up to
21 the courthouse that afternoon. And while I was on the fourth
22 floor, sheriff, who's nickname is Goose, his full name
23 escapes me, was a councilman for carlisle for many years,
24 grabbed me and said, hey, a piece of paper just came up from
25 the prothonotary's office for you. Do you have time? And I
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1 said, well, not really. I'm kind of running this motion
2 through. He's like it will only take a second. So I went
3 down with him to the third floor and I got it. I would not
4 have had it otherwise. And, at the time, I then decided that
5 there's no way with being sued by the same lawyers, who are
6 representing the same woman who wants to depose me the next
7 day, that I felt I could go forward with the deposition. So
8 I sought the court's guidance. We didn't have the court's
9 guidance at the time the deposition was set to begin so I
10 took the position that I wasn't going to be deposed. I
11 apologize if I've befronted the court's authority in any way.
12 And, quite frankly,-had the writ not been filed and served,
13 if I had not known about it, I would have gone forward with
14 the deposition.
15 I don't think we have gotten too far though,
16 because, agaln, Ms. phillips was not there. And they'll take
17 the position -- she came to see me with another lawyer from
18 Metzger wickersham one time, and the three of us met together
19 and discussed certain events that had occurred in this case,
20 but I have never by Ms. phillips been advised that these are
21 her lawyers, that she signed any pleadings with them and that
22 she's authorized me to speak with them in any way, shape or
23 form. And I specifically referenced that at the first
24 deposition. They failed to produce her at the second. So
25 even if I was in contempt, it's harmless because there
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1 couldn't have been a deposition without her present.
2 THE COURT: okay. would you like to respond?
3 MR. CONNELLY: Yeah. First of all, at the first
4 deposition on December -- by the way, Alice phillips has
5 signed verifications on the pleadings. It is clear that she
6 has made allegations regarding Mr. Rominger's behavior. she
7 is not required to be at the deposition.
8 secondly, Mr. Rominger said, and I quote, "On
9 December the 6th, I would like the opportunity to consult
10 with counsel, and I'd like the opportunity to have the
11 pleading reviewed by my counsel -- he acknowledged he had
12 read it approximately a week earlier -- and my malpractice
13 carrier and reviewed by my malpractice carrler to be sure
14 that we're happy -- they're happy with how we proceed." That
15 was his quote at the deposition December the 6th.
16 He then was served with the rule to show cause
17 either to appear at a deposition within 20 days of the order
18 or file a motion within 10 days of service opposing it.
19 Nothing was filed. Nothing was done at all. And he here
20 today not knowing -- he's representing that he was going to
21 appear at the deposition but that's not what he represented
22 to us in the phone call. We just said -- wrote back and said
23 you notice us at 2:52 on the evenlng before the deposition.
24 show up which he did. He showed up. He filed this petition.
25 I mean, this is just a song and dance about all
12
1 this. He had an opportunity to do everything he needed to
2 do. We had four lawyers come on two different occasions and
3 nothing got accomplished. Had he done what he said he was
4 going to do at the first deposition, this wouldn't have
5 occurred.
6 And this is all a red herring about Alice phillips
7 and she needs to be there. These pleadings were filed. He
8 was noticed that she was persuing a claim against him. This
9 idea somehow that she had to be there or there wouldn't have
10 been a deposition is not correct, but the pure fact was if he
11 had a problem with any of this, he should have followed your
12 order and he didn't. He waited 'til the day before, not -
13 knowing -- and what's customary in cumberland County, I can't
14 answer as to how long the sheriff takes to serve. I can tell
15 you that the suit was filed by praecipe and mailed to the
16 Court the 25th of January. They ultimately serve him, I
17 guess, the afternoon of the 31st. I can't control when they
18 serve him but that's academic. He said he was getting a
19 lawyer two months before. He said he was going to have his
20 malpractice carrier review the complaint that was filed and
21 then once again he brings everybody together with this
22 petition that morning.
23 The fact is he ignored the order, and there is no
24 explanation that's satisfactory. Had he done what he said we
25 wouldn't have had to come together again. He would have had
13
1 an attorney. His carrier would have been on notice. The
2 only reason we filed anything in this case -- and, frankly, I
3 was preparing for the deposition. I was unaware that Neil
4 had filed the praecipe. We were just concerned we didn't
5 hear anything from the guy. once again nothing, almost two
6 months not a word, and this deposition was scheduled with his
7 office weeks before the February 1 deposition date yet he did
8 nothing 'til 2:52 in the afternoon that day, and, apparently,
9 didn't do anything at all about the potential malpractice
10 claim until the morning before the deposition when he says he
11 reviewed the application and called the hot line. So it's
12 contempt pure and simple. He had every option to deal with
13 it in the meantime. He let it go to the last day and made
14 everybody come back again for no reason.
15 MR. ROMINGER: I just take umbrage with one point
16 which is I had no notice of a claim by Alice phillips until 4
17 p.m. when Goose took me to the counter and handed me the writ
18 and that -- that changed the entire prospective in my mind of
19 how this would proceed. My carrier had suggested that I try
20 to get it postponed, but they understood I was under a court
21 order and obviously the writ was really the tipping point.
22 And, Judge, what's really important about this,
23 there was no deadlines ready to pass. I mean, this wasn't a
24 writ that was timed. I mean, there was no need -- if these
25 events occurred, it occurred between september and october.
14
1 So as you do all the years out for statute of limitations
2 purposes, the timing of the writ in my mind was suspicious,
3 and it made me say wait a minute. I think this has to be
4 handled a little differently. And I did show up and --
5 THE COURT: Let me ask you a question. when did
6 you first review the allegations in this lawsuit against you?
7 MR. ROMINGER: It had to be somewhere like they
8 said I think somewhere a week before that.
9 THE COURT: A week before what?
10 MR. ROMINGER: Before the first deposition when I
11 had some knowledge. But, see, there were multiple pleadings.
12 That's what's really confusing about this case, and I think
13 these other attorneys might be able to confirm it. It seems
14 to me I had one pleading, but I don't believe that was the
15 final pleading in the case. In other words, I think she's
16 plead and withdrawn certain things, and I don't know that for
17 a fact, because I still haven't read the entire file.
18 THE COURT: I think the initial pleading did
19 indicate that you did some things that were wrong, and you
20 were put on notice about that. Is that correct?
21 MR. ROMINGER: I would agree with that.
22 THE COURT: What for what reason, if any, did
23 you delay in taking the action that you took immediately
24 before the second deposition? That's what I want to know
25 only.
15
1 MR. ROMINGER: I literally, Judge, was of the mind
2 in my own mind, and maybe that's the humorous of an attorney,
3 that I could be deposed. And based on some conversations,
4 looking things over that I had had, I thought I can go to
5 this deposition. And I don't have an actual -- I don't have
6 an actual potential claim here because it doesn't seem to --
7 it's outside the statute of limitations for any usual claims.
8 She's not claiming fraud per se because she's -- she's
9 claiming she's known about it for quite a long time. So I'm
10 looking at the total and I'm thinking I don't think I'm in
11 any real jeopardy. So I don't want to notice my insurance
12 company of a potential claim if I don't have to quite
13 frankly. So when they sent me the re-up application, which
14 every year I usually just sign a one page document where I
15 just say nothing's changed, and I have no claims against me,
16 and I send that in, this year I got a full seven, eight page
17 application, and one of the questions on there was are you
18 aware of anything that might result in a claim. And the
19 first gal I talked to at coldburn was kind of like doesn't
20 sound like anything but here's the 800 number. You should
21 call this. And really as the day developed that's what
22 changed it. And I got to say at the end of the day the writ
23 was like icing on the cake. It was sort of like what do I
24 do, what do I do? And then, smack, I'm served by the
25 sheriff. And maybe they didn't mean it that way.
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1 THE COURT: okay. I'm going to reserve my ruling
2 on contempt, but I want to get this case back on track. I
3 know you're not familiar with the facts but basic facts have
4 come out. Is there any reason why his deposition cannot be
5 taken in this case?
6 MR. SCHWARTZ: I do not see any reason why if we
7 could just get a statement from MS. phillips in writing that
8 the attorney/client privilege has been waived. I just served
9 Mr. yahn with a rule to file a complaint in the collateral
10 malpractice action. I would ask the Court for a leave and
11 stay his deposition until we know what exactly the claims are
12 being asserted in the malpractice action. They have 20 days
13 to file their complaint in compliance with the rule. We
14 would ask for, you know, at least the privilege of knowing
15 what allegations are being asserted before we have to provide
16 a deposition.
17 THE COURT: okay. Response.
18 MR. CONNELLY: I want to get -- you know, this has
19 been hanging since August. I want to get it moving as soon
20 as possible.
21 THE COURT: I do, too.
22 MR. CONNELLY: I'm really troubled by the
23 representations he made under oath on the record about what
24 he was going to do ln December and then this story today. I
25 mean, if you read our pleading
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1 THE COURT: well, I'm going to look at it again.
2 MR. CONNELLY: which he said he did, this is a
3 heck of a lot more than it's no big deal.
4 THE COURT: I'm going to look at it again. That's
5 why I reserved my ruling.
6 MR. CONNELLY: Yeah. Because it's replete with
7 allegations that are notice of a claim. So bottom line the
8 quicker the better.
9 THE COURT: Okay.
10 MR. CONNELLY: Your Honor, for the Court to be
11 aware, we have a substantial counsel fees in preparation for
12 two depositions~
13 THE COURT: Yes, you do.
14 MR. CONNELLY: And that I can provide the Court --
15 THE COURT: I would like that.
16 MR. CONNELLY: -- with a copy of what we've done.
17 NOw, this case, as you're aware, is millions of dollars at
18 issue.
19 THE COURT: Right.
20 MR. CONNELLY: I'll mark this as our Exhibit 1 and
21 provide Mr. Rominger with a copy.
22 I think the crux of this, Your Honor, is if you do
23 reread our pleading involving Mr. Rominger, you will see that
24 any reasonable man who reviewed that would be calling his
25 carrier the next day, not waiting two months.
18
1 THE COURT: Okay.
2 MR. SCHWARTZ: Your Honor, I'm sorry. If I may
3 just interject something. I recognize that I'm not involved,
4 but it appears as though that Mr. Rominger's comments are
5 being lost on Mr. Connelly's argument in that according to
6 his interpretation of the pleadings he was safe and there was
7 no need to report because of the statute of limitations
8 barred a claim against him, and, therefore, he was ready to
9 go forward with the deposition. It was only after he
10 received the notification, the writ of summons, formalizing a
11 claim against him that the decision was made that he could
12 not go forward and that's when it was filed with the Court.
13 And if I've misstated the chronology --
14 THE COURT: That's the only reason I'm withholding
15 my contempt finding.
16 MR. SCHWARTZ: Thank you.
17 MR. ROMINGER: Your Honor, I just want to add one
18 last thing. One of the other things that went into my
19 consideration when I'm eventually deposed the time for
20 instance there are certain times alleged in their complaint
21 by Alice phillips. I went back and compared what she was
22 alleging to certain records that I have in my scheduling
23 book, and her allegations are so far off the mark that was
24 something else that went into my line of thinking which was
25 I'm out of the statute of limitations. Like he says, you
19
1 know, there's these things, these allegations in there, but,
2 you know, when a person shows up and tells you that the
3 aliens teleported them to the moon, you don't believe it.
4 And when I looked at her allegations and how what I think are
5 basically, I mean, they're scandalous, but they're also so
6 wild and not based in fact that that was part of what also
7 I was sued by a fellow in federal court for two billion
8 dollars. He also named 80 other attorneys. I didn't notice
9 my malpractice carrier, and the judge had dismissed that. My
10 point being is that was something else that came into my
11 consideration.
12 THE COURT: All right.
13 MR. CONNELLY: Your Honor, if I could briefly
14 respond. Mr. Rominger never mentioned the statute of
15 limitations in any letters, proceedings or otherwise. This
16 is a new one today. The statute of limitations on these are
17 discovery. This isn't a defense to the action, but we don't
18 even need to argue that. The bottom line is he represented,
19 as I understand it, his file was lost. He didn't have any
20 records. There was a flood or something, and he didn't have
21 a file. Now he's claiming that the allegations are way off
22 with his calender. Some of these dates are documented by
23 meetings, dated documents, dated agreements of sale. So it's
24 certainly factual, but we're back to the same point, do
25 something. You got 10 days. Answer and say could be a
20
1 statute of limitations issue. I don't want to be deposed.
2 File a suit. Blah, blah, blah. He did nothing. That's
3 where the contempt lies. Not in whether or not he has a
4 rational defense to this. He can assert that later.
5 THE COURT: I understand. What about scheduling?
6 Your name again, sir.
7 MR SCHWARTZ: Ed Schwartz, Your Honor.
8 THE COURT: Mr. Schwartz has suggested that you
9 respond to his request for a complaint so that they know what
10 the allegations are.
11 Do you have a complaint ready to go or not?
12 MR. CONNELLY: No, we do not. We're going to-have
13 to organlze our pleadings, and we are going to consult with
14 counsel, in fact, potentially today to discuss joining
15 counsel in on the malpractice claim who does legal
16 malpractice. So can I give you that answer today? No. I do
17 want to consult with -- we wanted to get notice out there so
18 Mr. Rominger did something. Now he's done something.
19 Something he could have done two months ago.
20 THE COURT: Right.
21 MR. CONNELLY: So can I answer that we're going to
22 be able to have a pleading together in the timing necessary?
23 Not until we we're going to actually meet with someone on
24 the way back from here today so we can --
25 THE COURT: Can you work with Mr. Schwartz to
21
1 reschedule this deposition?
2 MR. CONNELLY: Yeah. Yeah, I think we can. Neil
3 yahn has worked with him in the past.
4 THE COURT: why don't you do that? I don't want
5 to interfere with that necessarily, but I want to keep the
6 case moving along, and I will make a ruling on the contempt
7 as soon as possible.
8 MR. CONNELLY: Thank you, Your Honor.
9 MR. YAHN: Your Honor, if I could just add one
10 point. We filed the writ specifically on the 25th because we
11 had not heard from anyone representing Mr. Rominger. He had
12 represented to us he_was going to notify his carrier. with
13 that then in the normal course we would expect to hear from
14 counsel for the carr1er to say I'm representing Mr. Rominger
15 with regards to certain pleadings and allegations you have
16 made. when we didn't hear anything, we grew concerned. On
17 the 25th, we filed the writ to further this purpose.
18 THE COURT: okay. All right. Thank you. Court's
19 1n recess.
20 (whereupon, at 11:40 a.m., the hearing was
21 adjourned.)
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1 I hereby certify that the proceedings and evidence
2 are contained fully and accurately in the notes taken by me
3 during the hearing of the within cause, and that this is a
4 true and correct transcript of the same.
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12 The foregoing certification does not apply to any
reproduction of the same by any means unless under the direct
13 control and/or supervision of the certifying reporter.
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15 VERONICA L. RHEAM
DISTRICT COURT REPORTER
16 PERRY COUNTY COURTHOUSE
P.O. BOX 668
17 NEW BLOOMFIELD, PA 17068
(717) 582-2131 EXT. 2233
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