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Home My WebLink About05-30-08 (7) IN RE: ESTATE OF ROBERT M. MUMMA, Deceased IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHAN'S COURT DIVISION NO. 21-86-398 FURTHER MOTION FOR JURY TRIAL f-- , ) ~.;,.. r=:; ~ c..::;:, = <"::X'..> ~ :L~ -< (.0 a Q _' c,.--) ',-.i.J PURSUANT TO ORPHANS' COURT ORDER OF OCTOBER 3. ~~ , . 1:] --i ~ -.'r;;"" -...;,!,. ~f) .r- AND NOW comes Robert M. Mumma, II, pro se, and files the instant Further Mo~n for - ) Jury Trial, and in support thereof avers as follows: 1. The undersigned Movant is Robert M. Mumma, II, an adult individual, acting pro se in the instant case. 2. The Movant is a beneficiary of the above-captioned Estate and the Trusts created under the Will of the Decedent. 1 3. The Movant is a trustee of contingent beneficiaries of the above-captioned Estate and Trusts. 1 On December 21,2004, the Movant filed a Motion to Compel Discovery with its Paragraph #4 averring that he is a beneficiary of the Estate and the Trusts; on December 29,2004, the Executrices and/or Trustees filed a Response with its Paragraph #4 averring: "Admitted." See, Rizzo v. Haines. 555 A.2d 58 (pa. 1989)(judicial admissions in pleadings are conclusive in the case in which they are filed; such pleadings cannot later be contradicted by the party who has made them and the trial court abuses its discretion if it ignores the admission); DeMuth v. Miller, 652 A.2d 891 (pa. Super. 1995)(a judicial admission has the effect of a confessory pleading in that the fact is thereafter to be taken for granted, so that the opposing party need offer no evidence to prove it and the party by whom the judicial admission was made is not allowed to disprove it). 1 4 4. In accordance with prior court orders entered in this matter, including, but not limited to, this Court's Order dated February 23, 2000, the Movant has standing before the Orphans' Court in this case. 5. 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 Movant which the Executrixes averred had "raise[d] questions offact". 6. In an Order dated January 6, 2005, Judge Oler appointed Taylor Andrews, Esquire as Auditor in the above-captioned Estate. 7. On January 31, 2005, the Movant filed a motion to recuse Taylor Andrews as the Auditor and to appoint a new auditor. 8. Judge Oler conducted a hearing on the motion to recuse Taylor Andrews on March 11, 2005. 9. As a result of the hearing on March 11,2005, Judge Oler issued a series of Orders relative to this case. 10. One of Judge Oler's Orders dated March 11,2005 held that "the oral motion of Robert M. Mumma, II for a jury trial at this stage of the proceedings is denied." 11. On March 24, 2005, the undersigned Movant filed a Request for Jury Trial on Objections to Inventory and Accounting which averred, inter alia, the existence of a substantial dispute as to the legal ownership of certain assets listed in the Estate's inventory and accounting. 12. On April 21, 2005, Judge Oler issued an Order which denied the request for a jury trial on objections to the inventory and accounting. 13. On May 19,2005, the undersigned Movant appealed the aforesaid April 21, 2005 Order to the Superior Court of Pennsylvania (No. 856 MDA 2005). 2 14. In Judge Oler's Opinion Pursuant to Pa. R.A.P. 1925 dated July 15,2005, under the subsection entitled "Denial of request for jury trial", the Court stated, inter alia, as follows: "In the matter sub judice, the record is far from clear that 'a substantial dispute of fact ... concerning the decedent's title to property' has been implicated by the objections which have been assigned to the auditor for review. Should the auditor's hearings reveal otherwise, the matter of a jury trial on that issue can be revisited." (slip op. p. 13). 15. On March 6, 2007, the Superior Court issued a memorandum opinion and order upholding Judge Oler's Order of April 21, 2005, and stated therein, inter alia, "In this case although 20 years have passed since decedent's death, the court has not yet had the opportunity to fully evaluate the disputes that may exist with regard to the decedent's property interests, and it has assigned discovery matters to the auditor for clarification and review. As the trial court wisely noted: "[s]hould the auditor's hearings reveal otherwise, the matter for a jury trial on that issue can be revisited.' Trial Court Opinion at 13. Accordingly, the Order denying appellant's request for a jury trial at this juncture of the proceeding was proper." (slip op. pp. 11-12). 16. Subsequent to the appointment of the Auditor in January 2005, upon the filing of a motion or petition by the parties hereto, Judge Oler has utilized a practice of referring said filings to Attorney Andrews for purposes of a recommended order and/or an interim report. 17. Judge Oler conducted the most recent hearing or status conference in this matter on October 3,2007. 18. In conjunction with said hearing, Judge Oler issued an Order dated October 3, 2007 which contained three numbered paragraphs that provided as follows: 3 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 med, and any expert reports of the estate shall have been served on all other interested parties. (emphasis added). 19. Notwithstanding the fact that the Orphans' Court appointed Taylor Andrews, Esquire as the Auditor in this case, and notwithstanding the fact that Judge Oler has referred multiple issues to him for the purposes of a recommended order and/or an interim report, the Auditor has not issued an interim report since he filed the "Auditor's Interim Report, December 2005" on December 30,2005 which addressed issues pertaining to discovery. 20. Notwithstanding the fact that the Orphans' Court appointed Taylor Andrews, Esquire as the Auditor in this case, and notwithstanding the fact that Judge Oler has referred multiple issues to him for the purposes of a recommended order and/or an interim report, the Auditor's most recent pre-hearing conference was conducted on October 19,2006, over one (1) year and seven (7) months ago. 4 21. By letter dated February 11,2008, the Auditor endeavored to schedule another pre-hearing conference in this case on February 29, 2008 and then again on March 3, 2008; however, counsel for certain parties had promptly advised the Auditor in writing of scheduling conflicts regarding said proposed dates. 22. Subsequently thereto, the Auditor has not taken any actions in the interim months with respect to rescheduling the next pre-hearing conference in this case. 23. The Auditor has not scheduled and has not conducted any formal hearings with respect to the issue of the request for a jury trial. 24. Notwithstanding the fact that the Orphans' Court has issued at least six (6) Orders since January 2008 which referred matters to the Auditor for purposes of a recommended order and/or an interim report, the Auditor has not issued any recommended orders or any interim reports despite the language in the Orphans' Court's Orders which directs him to do so. 25. The aforesaid opinion of the Orphans' Court dated July 15,2005 indicated that the request for a jury trial could be revisited should the auditor's hearings reveal a substantial dispute offact concerning the decedent's title to property; however, no formal hearings have been held to date relative to the jury trial issue inasmuch as the auditor has not completed any hearings on any issues. 26. The aforesaid memorandum opinion of the Superior Court dated March 6, 2007 held that the order denying the request for a jury trial was proper "at this juncture of the proceeding"; however, in consideration of the inaction on the part of the Auditor and his failure to complete formal hearings in this case and in consideration of Judge Oler's Order of October 3, 2007 imposing a deadline of May 31, 2008, there now exists another distinct juncture of these proceedings for revisiting the request for a jury trial which has so far languished as neglected. 5 27. Cognizant of the Orphans' Court's imposition of the May 31, 2008 deadline, and in consideration of the stalled Auditor's proceedings, the Movant files the instant "further procedural or dispositive-type motion" as advised by Judge Oler's Order dated October 3,2007. 28. For purposes of this motion, the Movant hereby incorporates by reference thereto as if fully set forth herein the averments of the Request for Jury Trial on Objections to Inventory and Accounting previously filed on March 24, 2005 as identified hereinabove. 29. Pursuant to Cumberland County Rule of Civil Procedure 208.3(a)(9), the Movant has not obtained the concurrence of any counsel to the other interested parties inasmuch as the prior statements and representations of said counsel have indicated that the Movant would not receive cooperation from them with respect to such a motion. 30. 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. WHEREFORE, the Movant respectfully requests that this Honorable Court issue an appropriate Order GRANTING the instant Further Motion for Jury Trial, or in the alternative, issue an appropriate Order which schedules a hearing on this matter. Respectfully submitted, ~-'~:Z( obert . Mumma, II Box 58 Bowmansdale, P A 17008 (717) 612-9720 PROSE 6 CERTIFICATE OF SERVICE I, Robert M. Mumma, II hereby certify that a copy of the foregoing Further Motion for Jury Trial was served on May 30, 2008 by U.S. Mail, fIrst class, postage prepaid, addressed to: George B. Faller, Jr., Esquire Ivo V. Otto, III, Esquire Martson Law Offices 10 East High Street Carlisle, P A 17013 Brady Green, Esquire Morgan, Lewis & Bockius, LLP 1701 Market Street Philadelphia, PA 19103-2921 Ralph Jacobs, Esquire 1515 Market Street- Suite 705 Philadelphia, P A 19102 Linda Mumma Roth PO Box 480 Mechanicsburg, P A 17055 Taylor Andrews, Esquire Court-Appointed Auditor 78 West Pomfret Street Carlisle, P A 17013 DATE: May 30, 2008 BY: ~4(J1 /~~~ / Robert M. Mumma, II Box 58 Bowmansdale, P A 17008 717 - 612 - 9720 PRO SE