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HomeMy WebLinkAbout05-30-08 IN RE: ESTATE OF ROBERT M. MUMMA, Deceased IN THE COURT OF COMMON PLEAS OF t~~ CUMBERLAND COUNTY, PENNS:~ V ANI~ . .'.) ::-;) ORPHAN'S COURT DIVISION -< (..,) o NO. 21-86-398 to ;'i FURTHER MOTION FOR VACATION OF APPOINTMENT OF ATTORNEY ANDREWS AS AUDITOR PURSUANT TO ORPHANS' COURT 0' -&::- ORDER OF OCTOBER 3. 2007 AND NOW comes Robert M. Mumma, II, pro se, and files the instant Further Motion for Vacation of Appointment of Attorney Andrews as Auditor, 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. I 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 ofthe 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. 1 989)(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. 1 995)(a judicial admission has the effect ofa 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. 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 "upon consideration of the Motion to RecuselRemove Attorney Taylor P. Andrews and To Appoint a New Auditor filed on behalf of Robert M. Mumma, II, and following a hearing, the motion is denied." 11. On April 1, 2005, Attorney Andrews filed a motion for an extension of time within which to file the Auditor's Report and averred therein in Paragraph #4 as follows: "An extension of at least 6 months, with the very real possibility of additional future extensions, is required for the completion of the auditor proceedings and the filing of an auditor's report." 2 12. On the very same date, April 1, 2005, Judge Oler issued an Order which provided that "in consideration of the attached motion, the appointed auditor in this case, Taylor P. Andrews, Esq., is given an extension of 6 months for the filing of his report." 13. On or about September 27,2005, Attorney Andrews filed a second motion for an extension of time within which to file the Auditor's Report; this second motion contained the same Paragraph #4 as quoted hereinabove at Paragraph # 11. 14. In an Order dated October 7, 2005, Judge Oler ordered that "in consideration of the attached motion, the appointed auditor in this case, Taylor P. Andrews, Esq., is given a second extension of 6 months for the filing of his report." 15. Both of Attorney Andrews' motions for an extension of time within which to file the Auditor's Report cited Pennsylvania Orphans' Court Rule 8.2 in their Paragraphs #2. 16. The six month period provided in Judge Oler's Order dated October 7, 2005 expired as of April 7, 2006. 17. Prior to April 7, 2006, Attorney Andrews did not file a third motion for an extension of time within which to file the Auditor's Report. 18. Attorney Andrews has not filed any subsequent motions for any other extension of time within which to file the Auditor's Report. 19. Subsequent to his Order of October 7,2005, Judge Oler has not issued any other Orders extending the time within which to file the Auditor's Report. 20. According to Pennsylvania Orphans' Court Rule 8.2, the auditor "shall file his report within ninety days after his appointment, unless, upon application, the court extends the time; and, in default thereof, his appointment may be vacated and compensation and reimbursement for services and expenses denied." (emphasis added). 3 21. 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. 22. 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: 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. 23. 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. 4 24. 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. 25. 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. 26. 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. 27. The Auditor has not scheduled and has not conducted any formal hearings which would lead to a final order in this case. 28. 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. 29. 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 Attorney Andrews from serving as the auditor in this case. 5 30. Given that Pennsylvania Orphans' Court Rule 8.2 provides that the Auditor's Report shall be filed within the first ninety days after the appointment of the auditor or within a period of time extended by the court, Attorney Andrews has failed to file an auditor's report within the requisite time period. 31. Pennsylvania Orphans' Court Rule 8.2 provides for the vacation of the appointment of the Auditor whenever he defaults in the timely filing of an auditor's report. 32. Pennsylvania Orphans' Court Rule 8.2 provides for the denial of the auditor's compensation and reimbursement for services and expenses whenever he defaults in the timely filing of an auditor's report. 33. Pursuant to Pennsylvania Orphans' Court Rule 8.2, Attorney Andrews is in default with respect to the filing of the Auditor's Report. 34. Cognizant ofthe 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. 35. For purposes of this motion, the Movant hereby incorporates by reference thereto as if fully set forth herein the averments of the prior motion to recuse Attorney Andrews filed on January 31, 2005. 36. 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. 37. 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. 6 WHEREFORE, the Movant respectfully requests that this Honorable Court issue an appropriate Order GRANTING the instant Further Motion for the Vacation of the Appointment of Attorney Andrews as the Auditor in this case, or in the alternative, issue an appropriate Order which schedules a hearing on this matter so that a successor auditor may be appointed. Respectfully submitted, Robert M. M Box 58 Bowmansdale, P A 17008 (717) 612-9720 PRO SE 7 CERTIFICATE OF SERVICE I, Robert M. Mumma, II hereby certify that a copy of the foregoing Further Motion for Vacation of Appointment of Attorney Andrews as Auditor 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, PA 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: ~tJ;0'fl."""'o/"7' :if: Robert M. Mumma, II Box 58 Bowmansdale, P A 17008 717 - 612 - 9720 PROSE