HomeMy WebLinkAbout05-01-08IN RE: ESTATE OF IN THE COURT OF COMMON PLEAS OF
ROBERT M. MUMMA, CUMBERLAND COUNTY, PENNSYLVANIA
Deceased
ORPHA vT' S COi.7R T DIVISION ,,,,
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NO. 21-86-398 ~~ ~ ~~'~
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MOTION FOR A PROTECTIVE ORDER
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AND MOTION FOR A STAY OF PROCEEDINGS
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Robert M. Mumma, II, pro se, submits this Motion for a Protective Order under
Pa.R.C.P. 4007.1(a) and 4012(a) and a Motion for a Stay of Proceedings under Pa.R.C.P. 4013
with respect to the Notice of Deposition served by the Executrices on April 29, 2008 relating to
the deposition of Barbara M. Mumma ostensibly scheduled for May 6, 2008 at 9:OOam at the
offices of Morgan, Lewis &Bockius in Philadelphia as follows:
1. The Honorable J. Wesley Oler, Jr. has previously ruled on prior motions and/or
petitions filed by the parties hereto as related to the pending Estate case.
2. Movant herein is Robert M. Mumma, II, a beneficiary of the Estate and a
remainderman under the Trusts created by the Will of the Decedent; he is a pro se litigant.
3. Barbara M. Mumma is a beneficiary of the Estate and a remainderman under the
Trusts created by the Will of the Decedent; she is represented by Ralph Jacobs, Esquire.
4. Lisa M. Morgan and Barbara McK. Mumma are the Executrices and Trustees with
respect to the above-captioned matter; same are represented by the Martson Law Offices and
Morgan, Lewis &Bockius.
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5. Judge Oler presided over a status conference on October 3, 2007.
6. Following said status conference, Judge Oler issued an Order on October 3, 2007 as
docketed on October 18, 2007 which set forth a series of deadlines with respect to depositions,
supplemental objections, expert reports, further procedural or dispositive-type motions, and all
additional discovery; the date of the final deadline set forth therein is May 31, 2008. A copy of
said Order is attached hereto as "Exhibit A".
7. Specifically, the final paragraph of Judge Oler's Order of October 3, 2007 provided as
follows: "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."
8. On Apri129, 2008, counsel for the Executrices served a notice for the deposition of
Barbara M. Mumma on Tuesday, May 6, 2008 at 9:OOam in the Philadelphia offices of Morgan,
Lewis & Bockius. A copy of the Notice of Deposition Upon Oral Examination is attached hereto
as "Exhibit B".
9. The Notice of Deposition indicates in its introductory "TO:" section that same was
being sent to Ralph Jacobs, Esquire and to the undersigned.
10. Said Notice of Deposition indicates that Ralph Jacobs, Esquire and the undersigned
"are invited to attend and participate."
11. A member of the undersigned's staff at my Lemoyne office and a counsel of the
Executrices exchanged emails on Friday, April 18, 2008 and Monday, Apri121as to my
availability for proposed dates of depositions of myself and Mr. William Manson. A copy of
same is attached hereto as "Exhibit C".
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12. The email sent by counsel for the Executrices on April 18, 2008 indicated that the
Executrices would like to get some dates on which to take my deposition and that the Executrices
were interested in the week of May 5, 2008 or the week of May 12, 2008.
13. The undersigned's staff replied via email later in the day on April 18, 2008 that he
believed the week of May 5 would probably be the most preferable, but that he would have to
double check with me, and that he would so advise the counsel for the Executrices as soon as he
knew.
14. The undersigned's staff further inquired in said reply email of April 18, 2008 as to
whether Mr. Manson would likewise be available for a deposition during the week of May 5,
2008.
15. The undersigned's staff sent an email on April 21, 2008 again inquiring about dates
on which to schedule Mr. Martson's deposition, and stated therein "If we can schedule it for the
week of May 5, I believe that Mr. Mumma would make himself available on the same date (so
both depos.could be done on the same date). please let me know your thoughts."
16. Between the dates of the aforesaid exchanges of emails between my office and
counsel for the Executrices and April 29, 2008 (the date that the attached Notice of Deposition
was issued), no specific date in either the week of May 5, 2008 or the week of May 12, 2008 was
ever selected, scheduled, and/or noticed for either my deposition or Mr. Martson's deposition.
17. In the nine (9) days between the aforesaid exchange of emails and the issuance of the
attached Notice of Deposition, the undersigned's schedule was subject to change on account of
both personal and professional reasons such that any dates of actual availability on a given date
during the week of May 5, 2008 (either to be deposed or to attend and participate in another
deposition) could have created a conflict.
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18. In the nine (9) days between the aforesaid exchange of emails and the issuance of the
attached Notice of Deposition, counsel for the Executrices did consult with the undersigned's
office as to whether or not I was available to attend and participate in the deposition of Barbara
M. Mumma on May 6, 2008 at 9:OOam in Philadelphia.
19. By virtue of issuing the Notice of Deposition on April 29, 2008 for a deposition to be
held on May 6, 2008, counsel for the Executrices provided the undersigned with less than seven
(7) days notice, and only four (4} business days notice, regarding the date of the deposition of
Barbara M. Mumma.
20. Counsel for the Executrices never indicated in any fashion that they intended to
schedule any depositions located outside of Cumberland County, Pennsylvania.
21. Counsel for the Executrices never attempted to coordinate the undersigned's
availability to appear and participate at any deposition scheduled to begin at 9:OOam in
Philadelphia.
22. Pa.R.C.P. 4007.1(a) provides that a party desiring to take the deposition of any
person upon oral examination shall give "reasonable notice" in writing to every other party to the
action.
23. Due to a scheduling conflict that has arisen, the undersigned is not available to attend
a deposition on May 6, 2008 at 9:OOam in Philadelphia.
24. The short notice provided by counsel for the Executrices has made it very unlikely
that arrangements can be made by the undersigned to reschedule or otherwise resolve my
scheduling conflict on May 6, 2008.
25. Had counsel for the Executrices confirmed my actual availability on the date of May
6, 2008 prior to issuing the attached Notice of Deposition on April 29, 2008, the undersigned
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would have alerted them to my scheduling conflict such that I could not appear on May 6, 2008
at 9:OOam in Philadelphia.
26. The undersigned intends to cooperate with all counsel in the scheduling of the
deposition of Barbara M. Mumma for purposes of the oral examination desired by the
Executrices provided that counsel for the Executrices confirms my actual availability to attend
and participate at a mutually available date, time, and location prior to issuing its Notice of
Deposition.
27. By failing to confirm my actual availability on a specific date, at a specific time, and
at a specific location, and by going ahead with the issuance of a Notice of Deposition in the
absence of such confirmation, counsel for the Executrices leaves the undersigned with no
recourse under the Rules of Civil Procedure other than seeking a protective order and a stay.
28. Counsel for the Executrices has constructed a situation whereby the undersigned's
staff attempted in good faith to propose dates for my deposition or Mr. Martson's deposition
during a given week, with the undersigned being desirous of conducting both of those
depositions on the same date and at the same location, only to claim that the proposal of using
said given week turned into carte blanch permission to schedule any deposition of any party or
witness, on any date during that given week, and at any location within or beyond Cumberland
County.
29. Counsel for the Executrices has engaged in conduct that results in unreasonable
annoyance, embarrassment, oppression, burden or expense as envisioned by Pa.R.C.P. 4012(a).
30. Counsel for the Executrices have noticed the deposition of Barbara M. Mumma
without complying with the "reasonable notice" provisions of Pa.R.C.P. 4007.1(a).
31. Upon learning that the undersigned intended to seek a protective order in response to
the Notice of Deposition due to my unavailability to attend and participate on May 6, 2008 at
9:OOam in Philadelphia, Ralph Jacobs, Esquire notified counsel for the Executrices and my office
via email that neither he nor Barbara M. Mumma would appear for said deposition as noticed
until the scheduling concerns are resolved by mutual agreement or by direction from the court.
A copy of the email sent by Ralph Jacobs, Esquire on Apri130, 2008 is attached hereto as
"Exhibit D".
32. Ralph Jacobs, Esquire further advised in his email of April 30, 2008 that he would be
unavailable from May 19 through May 30 as he will be out of the country.
33. With respect to that portion of Judge Oler's Order of October 3, 2007 setting forth a
discovery deadline of May 31, 2008 as described hereinabove in Paragraph #6 and #7, Ralph
Jacobs, Esquire further stated that "we have no objection to an extension of May 31 date, and the
other parties should feel free to so represent to the auditor or the Court in any submissions on this
issue."
34. In addition to Ralph Jacobs, Esquire, on behalf of Barbara M. Mumma, the
undersigned likewise has na objection to an extension of the May 31, 2008 discovery deadline.
35. The parties hereto should be permitted to schedule depositions and otherwise take
discovery beyond the May 31, 200$ date which was originally set forth by Judge Oler on
October 3, 2007.
36. Given the short notice imposed by the Executrices in the scheduling of said
deposition for May 6, 2008 and the documented history of the absence of obtaining concurrence
from counsel in prior motions, concurrence for purposes of C.C.R.P. 208 was not obtained as
futile.
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WI~EREFORE, Robert M. Mumma, II requests this Honorable Court to issue an Order
which stays the deposition of Barbara M. Mumma which was scheduled for May 6, 2008 at
9:OOam in Philadelphia until such a date, time, and location can be arranged such that every other
party can attend and participate. Furthermore, it is respectfully requested that this Honorable
Court issue an Order which supplements or modifies its prior Order of October 3, 2007 such that
the parties receive an extension of time within which to complete discovery.
RESPECTFULLY SUBMITTED,
~~~'C,tpA~~~2ry~I ~,,./vYy
DATE: lYlay 1, 2008 Robert M. Mumma, II -pro se
Box 58
Bowmansdale, PA i 7008
717-612-9720
VERIFICATION
I verify that the statements made in the foregoing Motions are true and correct to
the best of my knowledge, information, and belief. I understand that false statements
herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn
falsification to authorities.
DATE: May I, 2008 ~...~~G,~~~ ~
Robert M. Mumma, II r
IN RE: IN THE COt)RT OF COMMON PLEAS OF
ESTATE OF ROBERT M. MUMMA, CUMBERLAND COUNTY, PENNSYLVANIA
Deceased ORPHANS` COURT DIVISION
N0. 21-86-398
IN RE: STATUS CONFERENCE
ORDER OF COURT
AND NOW, this 3rd day of October, 2007, following a
status conference held on the record at the request of Robert M.
Mumma, II, it is ordered and directed 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.
By the Court,
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Georae B. Faller, Jr., Esquire
10 East High Street
Carlisle, PA 17013
For the Estate
Brady L. Green, Esquire
1701 Market Street
Philadelphia, PA 19103
For the Executrixes and Trustees
Ralph A. Jacobs, Esquire
1818 Market Street.
33rd Floor
Philadelphia, PA 19103
Far Barbara M. Mumma
Robert M. Mumma, II
840 Market Street
Ste. 164
Lemoyne, PA 17043
and
BOX 58
Bowmansdale, PA 17008
and
6880 S.E. Harbor Circle
Stuart, FL 34996-1968
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
IN RE ESTATE OF ORPHANS' COURT DIVISION
ROBERT M. MtiFMMA,
Deceased. N0.21-86-398
NOTICE OF DEPOSITION UPON ORAL EXAMINATION
To: Ralph A. Jacobs, Esquire
Jacobs & Singer LLC
1 S 1 S Market Street, Suite 70S
Philadelphia, PA 19102
Robert M. Mumma, II
844 Market Street, Suite 164
Lemoyne, PA 17043
and
Box S8
Bowmansdale, PA 17008
and
6880 S.E. Harbor Circle
Stuart, FL 34996-1968
PLEASE TAKE NOTICE that Barbara MeK. Mumma and Lisa M. Morgan will take the
oral deposition in accordance with the Pennsylvania Rules of Civil Procedure in the above-
referenced action on Tuesday, May 6, 2008 at the offices of Morgan, Lewis & Bockius LLP,
1701 Market Street, Philadelphia, Peruisylvania 19103, beginning at 9:00 a.m EDT. The
deposition will be conducted before an officer authorized by law to administer oaths, and shalt
continue from day to day uatil completed. You are invited to attend and participate.
The witness shall bring to the deposition the following:
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1. All documents supporting or relating to her contention that the selections of assets for
the Marital Trust and Residuary Trust was inappropriate, including but not limited to tax liability
projections supporting your claim.
2. All documents supporting or relating to her contention that "assets distributed to
Barbara McK. Monona as income distributions appear to have been undervalued"
3. All documents supporting ar relating to her contention that "inadequate valuation"
was made of certain assets distributed to Barbara McK. Mumma, including but not limited to all
documents supporting your valuation and/or contradicting the valuation of the Estate.
4. Ali documents supporting or relating to any contention that any "discretionary
distributions from the Marital Trust" have been improper or wrongful, including but not limited
to tax liability projections supporting your claim.
5. All documents supporting or relating to her contention that Estate assets and entities in
which the Estate had an interest "were not managed efficiently."
6. All documents supporting or relating to her contention that "the Estate was not wound
up promptly or efficientIy."
7. All documents supporting or relating to her contention that the Estate failed to
effectuate the intent o the Testator.
8. All documents supporting or relating to any contention that any of the actions of Mrs.
Mumma and Mrs. Morgan alleged in your Objections harmed or diminished the value of the
Estate of Robert M. Mumma and/or the Trusts established under his Will.
9. All documents supporting or relating to any contention that Barbara McK. Mumma
and/or Lisa M. Morgan have engaged in self-dealing with respect to the Estate and/or the Trusts.
1 Q. A!1 documents supporting or relating to any contention that Barbara McK. Mumma
and/or Lisa M. Morgan have breached any fiduciary obligations to the Estate, the Trusts and/or
any of the beneficiaries.
11. A11 documents supporting or relating to any contention that any exercise of the 5%
withdrawal power granted to Barbara McK. Mumma under the will of Robert M. Mumma with
respect to the Marital Trust was invalid or otherwise not property made.
12. All documents supporting or relating to any contention that any of the accounts filed
to date with respect to the Estate and/or the Trusts incorrectly states the ownership of any asset
listed therein.
13. All documents relating to any grounds she believes exist for removal of Barbara
McK. Mumma and/or Lisa M. Morgan as Executrices and Trustees.
14. All documents relating to any written agreement, document, contract or other
document upon which she bases any contenrion or allegation in this proceeding.
15. All documents that relate, pertain or refer to any argument, issue, contention or
allegation you have made or intend to make in this proceeding.
16. All documents relating, pertaining or referring to the Estate or the Trusts, or any
assets at any lime owned in whole or in part by the Estate or the Trusts, that were not produced
to herby Barbara McK. Mumma, Lisa M. Morgan, their counsel, or Hadley & Company in this
action,
Dated: Apri129, 2008
Hardy L. Gree ~ 1
MORGAN, L WIS & BCjCKIUS LLP
1701 Market Street
Philadelphia, PA 19103
215.963.5079
George B. Faller, Jr.
No V. Otto, IIi
MARTSON LAW OFFICES
10 East High Street
Carlisle, PA 17013
717.243.3341
Attorneys for Barbara McK. Mumma and
Lisa M. Morgan
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CERTIFICATE OF SERVICE
I, Brady L. Green, certify that on this 29th day of April, 200$, I served a true and correct
copy of the foregoing Notice of Deposition by overnight mail, email and first-class mail upon:
Robert M. Mumma, II
840 Market Street, Suite 164
Lemoyne, PA 17043
and
Box S8
Bowmansdale, PA 17008
and
6880 S.E. Hazbor Circle
Stuart, FL 34996-196$
Ralph A. Jacobs, Esquire
Jacobs & Singer LLC
1 S 1 S Market Street, Suite 70S
Philadelphia, PA 19102
and by overnight mail and first-class mail upon:
Linda. M. Mumma
S 12 Creekview Road
Mechanicsburg, PA 170SS
and
P.O. Box $40
Mechanicsburg, PA 17055
and
203$ Spruce Street, Apt. 3R
Philadelphia, PA 19103
Comcast Webmail -Email Message Page 1 of 3
nmcast
From: jggauft@comcast.net
To: gfaller~martsonlaw.com
Subject: FW: Re: Orphan's Court deposition of RMM II
Date: Monday, April 21, 2008 11:51:33 AM
George,
can you provide some dates for Mr. Martson's deposition? we tried to accomodate his surgery a few
weeks ago.
If we can schedule it for the week of May 5, I believe that Mr. Mumma would make himself available on
the same date (so both depos.could be done on the same date).
please let me know your thoughts.
Jim
-------------- Forwarded Message: --------------
From: jggault@comcast.net
To: "George B. Faller Jr." <gfaller@martsonlaw.com>
Subject: Re: Orphan's Court deposition of RMM II
Date: Fri, 18 Apr 2008 17:43:17 +0000
George,
I believe that the week of May 5 will probably be the most preferable for him,
but let me double check.
I will get back to you as soon as I know.
Since he will most likely ask me, is Mr. Martson likewise available that week??
Please let me know asap; that may help us get these scheduled more quickly.
thanks,
Jim
-------------- Original message
From: "George B. Faller Jr."
> Dear Jim:
> We would like to get some dates from Mr Mumma to take his deposition.
> We are looking at the week of May 5, 2008 or May 12,2008. Should I go
> thru you or contact him directly?
> George B. Faller, Jr.
> MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER
> MARTSON LAW OFFICES
http://mailcenter3.Comcast.net/wmcJv/wm/4819A98A000CA71 A0000250822155754749B049AOE090906... 5/ 1 /2008
C~~, C.
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Crnmcast Webmail -Email Message Page 1 of 2
From: "Ralph Jacobs" <RJacobs@jacobs-singer-law.com>
To: <jggautt@comcast.net>, <bgreen@morganlewis.com>, <gfafter@martsoniaw.com>
Subject: RE: Depo.Notice sent yesterday
pate: Wednesday, April 30, 2008 2:34:10 PM
James:
In light of your email, Ms. Mumma will not appear for deposition on May 6 unless and until the scheduling concerns are
resolved by mutual agreement or direction from the Court.
As far as schedule is concerned, I have only a very few other available days before the end of May and will be out of
the country from May 19 through May 30. Under the dreumstances, we have no objection to an extension of the May
31 date, and the other parties should feel free to so represent to the auditor or the Court in any submissions on this
issue.
I am also available for a conference call basiglly any time tomorrow if any of the parties believes that would clarify
things, or pefiaps a conference call including the auditor would be more useful.
Ralph
Ralph A. Jacobs, Esquire
Jacobs 8 Singer LLC
1515 Market Street
Suite 705
Philadelphia, PA 19102
215-789-3110
Jacobs r'esq.com
From: jggault@comcast.net [mailto:jggault@comcast.net]
Se~rt: Wednesday, April 30, 2008 1:34 PM
To: bgreen@morganlewis.com; Ralph Jacobs; gfaller@martsonlaw.com
Subject: Depo.Notice sent yesterday
Counsel,
Late yesterday afternoon, I received an email from Brady Green with the attached pdf document of the Notice of
Deposition for Barbara M. Mumma (purporting to schedule same for Tues. 05-06-08 at 9:OOam in Philadelphia). I
had an opportunity to review said email and the attached Notice of Deposition with Mr. Mumma earlier this morning
(0430-08).
Apparently, Mr. Mumma was never consulted about his availability concerning said date, time, and location. In point
of fact, he is indeed unavailable.
Therefore, he will proceed to file a Motion for a Protective Order and a Stay of Proceedings inasmuch as there was
no 'reasonable notice' in the scheduling of said deposition as contemplated by Pa.R.C.P. 4007.1(a). This motion will
be filed later today or tomorrow (if necessary).
The aforecited Rule of Civil Procedure provides that no subpoena is required to be served in order to compel the
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attendance of a party" as a deponent. Since no subpoena was attached to yesterday's email, it appears that the
estate counsel is proceeding on the conclusion that Barbara is deemed to be a "party" in the context of this
estate litigation. Rule 4007.1(d) provides that a party noticed for deposition may be compelled to produce
documents at the deposition in compi'rance with "Rule 4009.1 et seq.". Brady Green's Notice of Deposition lists
documents to be produced by Barbara at her deposition; however, Rule 4009.12 references a 30 day period for the
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Comcast Webmail -Email Message
Page 2 of 2
filing of objections to the request for documents. Such a 30 day period would, by definition, extend to 06-05-08 (i.e.,
30 days after the purported depo.date of 05-06-08). Obviously this latter date would be beyond the 05-31-08
"deadline" set forth in Judge Olers Order o f 10-03-07. If the schedules of the deponents and the attomeys are such
that these depositions cannot be mutualy scheduled prior to the 05-31-08 "deadline", one could suggest there
exists a reason for approaching the Orphans' Court (or the auditor) about getting an extension regarding the
discovery deadline. I submit this for consideration as an aRemative to the now-present situation of both sides having
to file protective motions prior to 05-31-08, and not knowing your respective calendars or Mr. Mumma's personal
calendar for the remainder of May 2008.
Thanks,
James Gault
PS > As for my role in Mr. Mumma's affairs, I have discussed same in a general fashion with George Faller who I
have known since our days of Gerking for the Judges in Cumberland County. While I am a licensed Penna.attorney,
I have never formally entered my appearance as his counsel of record. I am attempting to manage some aspects of
some of his cases. In that light, please note that sending emails to me is not equivalent to providing notice or
othervvise serving Mr. Mumma who has been, is, and will be proceeding in his pro se capaaty. His PO Box 58,
Bowmansdale, PA address remains as his formal mailing address (not my email /not his email). Please share these
observations about the use of said email addresses with the other attomeys in your respective offices.
http://mailcenter3.comcast.net/wmc/v/wm/4818BEED000972740000645D22120207849B... 4/30/2008
CERTIFICATE OF SERVICE
I, Daryl E. Hewitt, do hereby certify that I served a true and correct copy of the within
Motion for a Protective Order and a Stay on the 1St day of May, 2008 by first class mail, postage
prepaid, upon the individuals addressed as follows:
Ralph Jacobs, Esquire
1515 Market Street -Suite 705
Philadelphia, PA 19102
George B. Faller, Jr., Esquire
No V. Otto, III, Esquire
10 East High Street
Carlisle, PA 17013
Brady Green, Esquire
1701 Mazket Street
Philadelphia, PA 19103-2921
Taylor Andrews, Esquire
Court-Appointed Auditor
78 West Pomfret Street
Carlisle, PA 17013
Linda M. Mumma
PO Box 840
Mechanicsburg, PA 17055
Dated: May 1, 2008 ~~~ ^ ~~._~
Daryl .Hewitt
Administrative Assistant to
Robert M. Mumma, II -pro se
BOX 58
Bowmansdale, PA 17008
(717) 612 - 9720