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HomeMy WebLinkAbout01-29-08IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA IN RE: ESTATE OF ORPHAN'S COURT DIVISION ROBERT M. MUMMA, ~, J c~ Deceased NO. 21-86-398 -r; -~- c: > --, ~ ~l -- . --, r~ - l i _,.~ --i MOTION FOR EXTENSION OF TIME TO FILE EXPERT REPORTS AND/OR SUPPLEMENTAL OBJECTIONS ~,e ~- N '.I ~D _,'-: G~ c~ AND NOW, comes the Petitioner, Robert M. Mumma, II, pro se, and files the instant Motion for Extension of Time within which to file expert reports and/or supplemental objections, and in support thereof avers as follows: 1. Petitioner is Robert M. Mumma, II, an adult individual, acting pro se in the instant matter. 2. Petitioner is a beneficiary of the above-captioned Estate. 3. Petitioner is a trustee of contingent beneficiaries of the above-captioned Estate. 4. In accordance with prior court orders entered in this matter, including, but not limited to, court orders entered subsequent to January 16, 1990, Petitioner has standing before the Orphan's Court. 5. Pursuant to Cumberland County Rule of Civil Procedure 208.3(a)(2), the Honorable Wesley Oler has previously ruled on prior motions filed by the parties hereto, including various issues in this case pertaining to discovery, account objections, jury trial, disclaimer, recusals, and many other issues related to the pending matter. 1 6. In a Petition for Appointment of Auditor filed January 5, 2005, the Executrixes of the above-captioned Estate sought the appointment of an Auditor "to pass upon the objections" that were filed by the instant Petitioner which the Executrixes averred "raise[d] questions of fact." 7. In an Order dated January 6, 2005, Judge Oler appointed Taylor Andrews, Esquire as an Auditor in the above-captioned Estate. 8. Judge Oler has since referred many issues to Attorney Andrews, including, but not limited to, issues such as set forth hereinabove at Paragraph 5. Therefore, the issues that have been referred to the Auditor by the Orphan's Court extend far beyond the "questions of fact" within the context of the original appointment to "pass upon the objections." 9. Judge Oler conducted the most recent hearing in this matter on October 3, 2007. 10. In conjunction with said hearing, Judge Oler issued an Order dated October 3, 2007 which contained three numbered paragraphs that provided as follows: 1. Depositions or further depositions of Lisa Mumma Morgan, Barbara McKimmie Mumma, and George W. Hadley, to be held in Florida, shall be noticed by the estate and completed before November 22, 2007. 2. Any supplemental objections to be filed by Robert M. Mumma, II and/or Barbara Mann Mumma shall be filed, and any expert reports of the objectors shall be served upon all other interested parties, on or before January 31, 2008. 3. On or before May 31, 2008, all additional discovery relating to any supplemental objections filed shall have been completed, any further procedural or dispositive-type motion shall have been filed, and any expert reports of the estate shall have been served on all other interested parties. 2 11. Thereafter, the Petitioner issued a Notice of Deposition upon Mr. Joseph O'Conner. Said fact witness was noticed for a deposition to be taken in Lemoyne, Pennsylvania on January 23, 2008. Said Notice of Deposition indicated that it was issued under Pa. R. C. P. 234.1 (for depositions permitted by Pa. R. C. P. 4007.1(d)(2)); therefore, Pa. R. C. P. 4009.21 et seq. was inapplicable. Petitioner's Notice of Deposition utilized a subpoena dated December 3, 2007 and was served on December 10, 2007. 12. In his letter dated January 14, 2008 (same being faxed to the Petitioner on January 15, 2008), the Auditor unilaterally cancelled the aforesaid deposition of the fact witness. 13. While the PEF Code permits the appointment of an auditor to examine and audit an account and to determine distribution, no authority exists for an Auditor to cancel a deposition that was otherwise properly noticed pursuant to applicable Rules of Civil Procedure. The Orphan's Court has therefore endorsed the delegation of important functions inherent only to elected members of the bench to the Auditor, including, but not limited to, the power to cancel duly-noticed depositions of fact witnesses. 14. Upon learning that his effort at engaging in discovery had been unilaterally cancelled by the Auditor, Petitioner sent a letter dated January 17, 2008 to Judge Oler requesting an extension of time within which to serve supplemental objections and expert reports. Specifically, Petitioner requested an indefinite extension of time or, in the alternative, until May 31, 2008, within which to serve said supplemental objections and/or expert reports. Petitioner served copies of said letter upon all interested parties and counsel. 15. Within Petitioner's letter dated January 17, 2008 sent to Judge Oler, Petitioner noted that the request for an extension of time was warranted in light of the fact that the Auditor's letter dated January 14, 2008 confessed that he had not yet "entirely resolved" 3 discovery matters "that have been before me." Indeed, the Auditor's letter indicated that he would be "endeavoring" to schedule a conference within the next 30 days. In the interim 14 days since his letter, the Auditor has not contacted the Petitioner and has therefore not endeavored to schedule said conference to date. 16. To date, no response from Judge Oler has been forthcoming regarding Petitioner's request for said extension of time as set forth in Petitioner's letter dated January 17, 2008. Hence, Petitioner has filed the instant Motion with the court in order to secure a reasonable extension of time within which to comply with Paragraph 2 of the Order dated October 3, 2007. 17. In addition to the posture of the unilaterally truncated discovery, Petitioner further avers in support of the instant Motion for an Extension of Time that an expert report will be necessary in order for the Auditor to fully comprehend those "questions of fact" for which he was originally appointed. 18. To wit, Petitioner has retained expert counsel to prepare a report addressing outstanding questions of fact pertaining to substantial disputes that have arisen with respect to the identity, ownership, and disposition of assets that are alleged to comprise a significant portion of the estate. 19. The requested Extension of Time within which to serve said expert report will not hamper or unduly delay the Auditor's proceedings which are already admittedly stalled, nor will it cause any prejudice to other interested parties, especially the Executrixes who originally sought the appointment of an auditor to pass upon questions of facts contained within objections to the account. 20. Pursuant to Cumberland County Rule of Civil Procedure 208.3(a)(9), Petitioner has not obtained the concurrence of any counsel to the other interested parties inasmuch as the 4 prior statements and representations of said counsel have indicated that the Petitioner would not receive cooperation from them with respect to such a motion. WHEREFORE, Petitioner respectfully requests a reasonable extension of time within which to serve supplemental objections and/or expert reports regarding substantial questions of fact concerning the above-captioned Estate. Said request would be for an extension of time that is indefinite, or in the alternative, until May 31, 2008. Said request is made, inter alia, in connection with the Auditor's recent representation that additional time is necessary to address discovery matters that remain before him and for which he has indicated the necessity of scheduling a conference. Date: January 29, 2008 Respectfully submitted, • Robert M. Mumma, II, pro se P.O. Box 58 Bowmansdale, PA 17008 (717) 612-9720 CERTIFICATE OF SERVICE On this 29th day of January 2008, I, Daryl E. Hewitt, Assistant to Robert M. Mumma, II, hereby certify that I served the foregoing MOTION by U.S. Mail, first class, postage prepaid, addressed to: Ralph Jacobs, Esquire 215 South Broad Street Philadelphia, PA 19107 George B. Faller, Jr., Esquire No V. Otto, III, Esquire 10 East High Street Carlisle, PA 17013 Brady Green, Esquire 1701 Market Street Philadelphia, PA 19103-2921 Taylor Andrews, Esquire Court-Appointed Auditor 78 West Pomfret Street Carlisle, PA 17013-3216 ~ A~~', r _~ Daryl E. Hewitt 6