HomeMy WebLinkAbout05-30-08 (2)
IN RE: ESTATE OF
ROBERT M. MUMMA,
Deceased
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
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ORPHAN'S COURT DIVISION '-"Sf? co:>
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NO. 21-86-398 0
FURTHER MOTION FOR RECUSAL OF JUDGE OLER
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PURSUANT TO ORPHANS' COURT ORDER OF OCTOBER 3.2007
AND NOW comes Robert M. Mumma, II, pro se, and files the instant Further Motion for
Recusal of Judge Oler, 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 (Fa. 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 (Fa. Super. I 995)(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).
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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 offad'.
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, that this Court recuse itself from hearing a Motion to Recuse/Remove
Attorney Taylor P. Andrews and to Appoint a New Auditor, is denied."
11. On April 27, 2005, the Movant filed a motion for the recusal of Judge Oler due to
the appearance of impropriety; the latter allegedly arose due to familial connections between
Judge Oler and the law firm of Morgan, Lewis & Bockius, counsel representing the Estate and/or
the Executrices / Trustees.
12. On August 29,2005, Judge Oler presided over a hearing regarding the motion for
recusal.
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13. Judge Oler issued an Order dated August 29,2005 which held that "upon
consideration of Petitioner's Motion for Recusal of Judge Due to Appearance ofImpropriety,
and following a hearing, the motion is denied without prejudice to Petitioner's right to submit a
new motion in the event that the record as it develops would warrant the same." This Order was
docketed on September 6,2005.
14. On September 15,2005, the Movant appealed Judge 0ler's Order to the Superior
Court of Pennsylvania (at 1546 MDA 2005).
15. On October 5,2005, the Superior Court issued a Per Curiam Order indicating that
an order denying a motion for recusal is interlocutory and further directing appellant to show
cause why the appeal should not be quashed as interlocutory.
16. On October 28, 2005, the Superior Court issued a Per Curiam Order which
quashed the appeal sua sponte.
17. On November 4,2005, Judge Oler issued a Rule 1925 Opinion wherein the court
reiterated that the order denying the recusal motion ''was expressly without prejudice to Mr.
Mumma's right to reassert the motion in the event that circumstances more indicative of a
conflict developed. . . " . (slip op. p. 15).
18. 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.
19. Judge Oler conducted the most recent hearing or status conference in this matter
on October 3,2007 resulting in an Order dated October 3,2007 which contained three numbered
paragraphs that provided as follows:
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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.
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 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.
21. 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.
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22. 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.
23. 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.
24. The Auditor has not scheduled and has not conducted any formal hearings which
would lead to a final order in this case.
25. 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.
26. Given that these proceedings were entrusted to Attorney Andrews as Auditor, and
given that the Auditor has not engaged in any substantial activities in this case for months, the
undersigned Movant files the instant further motion to recuse Judge Oler as the Movant has been
precluded from submitting another such motion as permitted by the Order of August 29, 2005 as
no record has been developed by the Auditor, said record being a condition subsequent.
27. As the Order of August 29,2005 and the Opinion of November 4,2005 both
suggest that Movant may reassert a motion for recusal of Judge Oler in circumstances more
indicative of the appearance of impropriety, the Movant further motions for recusal based upon
Judge Oler's prior employment relationship with counsel for the Executrices / Trustees, i.e., The
Martson Law Offices.
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28. Judge Oler previously worked for the Carlisle law firm of "Martson &
Snelbaker."
29. William F. Martson, Esquire is an attorney who was/is affiliated with both
"Martson & Snelbaker" and "The Martson Law Offices."
30. Judge Oler and Attorney Martson have previously represented the same client or
clients as co-counselor otherwise.
31. Judge Oler and Attorney Martson previously appeared as co-counsel together
representing an appellee before the Pennsylvania Supreme Court in the reported case of In re
McCrea's Estate, 380 A.2d 773 (Pa. 1977).
32. The prior employment relationship between Judge Oler and Attorney Martson
would necessitate the receipt, exchange, or transfer of funds, wages, or other monies between
them as attorneys working together in the same law office.
33. In April 2008, counsel for the Executrices / Trustees was contacted for the
purposes of attempting to schedule the deposition of William F. Martson, Esquire as a witness in
this case.
34. Judge Oler previously worked in the Public Defender's Office of Cumberland
County .
35. Taylor P. Andrews, Esquire, the Auditor, was the Chief Public Defender who
supervised Judge Oler when the latter worked as a public defender.
36. Judge Oler and the Auditor have a prior employment relationship.
37. There exists at least the appearance of impropriety in light of Judge Oler's prior
associations, connections, or relationships with both of the law firms now representing the Estate
and/or the Executrices/Trustees, as well as the Auditor.
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38. 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 motion
as envisioned by Judge Oler's Order dated October 3, 2007.
39. 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.
40. 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 Recusal of Judge Oler, or in the
alternative, issue an appropriate Order which schedules a hearing on this matter.
Respectfully submitted,
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obert M. Mumma, II '
Box 58
Bowmansdale, P A 17008
(717) 612-9720
PRO SE
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CERTIFICATE OF SERVICE
I, Robert M. Mumma, II hereby certify that a copy of the foregoing Further Motion for
Recusal of Judge Oler 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
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BY: l: j(11&~~lC
Robert . umma, II
Box 58
Bowmansdale, P A 17008
717 - 612 - 9720
PROSE