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HomeMy WebLinkAbout08-13-08_` -- George B. Faller, Jr., Esquire '' ~" I.D. No. 49813 No V. Otto, III, Esquire L('Ltl ~11~ E 3 ~f`~ 2' ~2 I.D. No. 27763 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER ri ~ ~ MARTSON LAW OFFICES ~ ,,,, , -. n? 10 East High Street ~+~".~ ' '' ~', ~~~~ Carlisle, PA 17013 ~'_~~.~ ~' (717) 243-3341 Attorneys for Barbara McK. Mumma & Lisa M. Morgan IN RE ESTATE OF IN THE COURT OF COMMON PLEAS OF ROBERT M. MOMMA :CUMBERLAND COUNTY, PENNSYLVANIA Deceased N0.21-86-398 ORPHAN'S COURT DIVISION RESPONSE OF BARBARA McK. MOMMA AND LISA M. MORGAN TO FURTHER MOTION OF ROBERT M. MOMMA, II FOR RECUSAL OF JUDGE OLER PURSUANT TO ORPHANS' COURT ORDER OF OCTOBER 3 2007 AND NOW, comes Lisa Mumma Morgan and Barbara McK. Mumma as Executrices of the Estate of Robert M. Mumma and Trustees under his will, respond as follows to the Motion of Robert M. Mumma, II: 1. Admitted. Mrs. Mumma and Mrs. Morgan admit that Mr. Mumma, II, is currently acting pro se in that no counsel has entered an appearance on his behalf. Mrs. Mumma and Mrs. Morgan understand, however, that Mr. Mumma, II, is being assisted by counsel with respect to these matters. 2. Denied. To the contrary, a disclaimer was filed in this matter on or about January 6, 1987, whereby the Petitioner disclaimed any interest in the above-captioned Estate. The Court has not issued a final ruling on the effect of that disclaimer, as indicated in the Auditor's letter of September 26, 2005. By way of further response, Mrs. Mumma and Mrs. Morgan incorporate by reference their Response to Petition to Orphans' Court Division for the Entry of the Date of the Deemed Denial of Exceptions Under Pennsylvania Orphans' Court Rule 7.1(f) and New Matter. 3. Denied. After reasonable investigation, Mrs. Mumma and Mrs. Morgan are without knowledge or information sufficient to form a belief as to the truth or falsity of this averment. They demand strict proof. 4. Denied. To the contrary, see the averments of Paragraph 2 above, which are incorporated herein by reference. 5. Admitted. 6. Admitted. 7. Admitted. Robert M. Mumma, II, filed a motion to recuse the Auditor and to appoint a new Auditor on or about January 31, 2005. 8. Admitted. 9. Admitted. After a hearing, Judge Oler issued numerous Orders on March 11, 2005, relating to this case. 10. Admitted. 11. Admitted. 12. Admitted. 13. Admitted. 14. Admitted. 15. Admitted in part, denied in part. That Opinion is in writing and speaks for itself, and Mrs. Mumma and Mrs. Morgan deny all characterizations thereof. 16. Admitted. 17. Admitted in part, denied in part. Mrs. Mumma and Mrs. Morgan admit that this paragraph accurately quotes a portion of the Rule 1925 Opinion from November 4, 2005. That Opinion is in writing and speaks for itself, and Mrs. Mumma and Mrs. Morgan deny all characterizations thereof. 18. Admitted in part, denied in part. Mrs. Mumma and Mrs. Morgan admit that Judge Oler has referred the issues raised in various motions or petitions filed in the case to the Auditor for purposes of a recommended order and/or interim report. Those orders are in writing and speak for themselves, and Mrs. Mumma and Mrs. Morgan deny all characterizations thereof and all remaining allegations of this paragraph. 19. Admitted in part, denied in part. Mrs. Mumma and Mrs. Morgan admit that Judge Oler presided aver a proceeding on October 3, 2007. Mrs. Mumma and Mrs. Morgan deny that the proceeding was a "hearing." On the contrary, the October 3, 2007 proceeding was a Status Conference at which Judge Oler issued a comprehensive Order setting deadlines for completion of various aspects of these proceedings. 20. Admitted in part, denied in part. Mrs. Mumma and Mrs. Morgan admit the Auditor's last "interim report" was dated December 30, 2005. Mrs. Mumma and Mrs. Morgan deny all remaining allegations of this paragraph as argumentative and not requiring a response. 21. Admitted in part, denied in part. Mrs. Mumma and Mrs. Morgan admit that the last pre-hearing conference held by the Auditor occurred on October 19, 2006. Mrs. Mumma and Mrs. Morgan deny the remaining allegations of this paragraph as argumentative and not requiring a response. 22. Admitted in part; denied in part. Mrs. Mumma and Mrs. Morgan admit that the Auditor made several attempts by letters in January and February, 2008 to schedule apre-hearing conference. However, the Auditor's letter of February 11, 2008 indicates that it is Mr. Mumma, II who advised he was not available for apre-hearing conference that was originally scheduled, and agreed to by counsel, for February 29, 2008. Mrs. Mumma and Mrs. Morgan deny the remaining allegations of this paragraph as argumentative and not requiring a response. 23. Denied. Mrs. Mumma and Mrs. Morgan are without knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph, which therefore are deemed to be denied. Mrs. Mumma and Mrs. Morgan are not aware of any actions the Auditor has taken since February, 2008 to schedule apre-hearing conference in this case. 24. Admitted. 25. Admitted in part, denied in part. Mrs. Mumma and Mrs. Morgan admit that Judge Oler has issued Orders referring issues to the Auditor for purposes of a recommended order andlor interim report, and that the Auditor has not issued any recommended orders or interim reports since at least January, 2008. Mrs. Mumma and Mrs. Morgan deny the remaining allegations of this paragraph as argumentative and not requiring a response. They also deny any implication that the Court set forth deadlines or time periods for the Auditor to decide any matters that have been referred to him. 26. Denied. The allegations of this paragraph constitute legal conclusions and or otherwise do not require a response. They are, therefore, denied. 27. Denied. The allegations of this paragraph constitute legal conclusions and or otherwise do not require a response. They are, therefore, denied. By way of further response, Mrs. Mumma and Mrs. Morgan understand that Judge Oler previously practiced as a lawyer with Attorney William Martson. However, that fact alone does not provide a basis for disqualification or constitute a ground for recusal under Canon 3 (c) of the Pennsylvania Judicial Code of Conduct. Moreover, Judge Oler has developed continuity and familiarity with the complicated and long history and facts of this case, and transitioning the matter to a new judge would be counter-productive to resolution of this matter. Furthermore, Mr. Mumma, II has failed to raise as an alleged basis for recusal any new information, or information that was not publicly available since the commencement of Judge Oler's involvement in this estate matter. Therefore, his attempt to raise the issue at this time is inappropriate and untimely. 28. Admitted. By way of further response, see response to paragraph 27. 29. Admitted. By way of further response, see response to paragraph 27. 30. Admitted in part, denied in part. Mrs. Mumma and Mrs. Morgan admit that while practicing as an attorney for Attorney Martson, Judge Oler would have represented clients together. However, any implication that Judge Oler represented any of the Mummas or anyone related to this case is denied. By way of further response, Judge Oler's affiliation with Attorney Martson's firm occurred in the 1970s, well before the death of Robert M. Mumma, Sr. 31. Admitted. By way of further response, see response to paragraph 27. 32. Denied. The allegations of this paragraph constitute legal conclusions and/or otherwise do not require a response. They are, therefore, denied. By way of further response, see response to paragraph 27. 33. Admitted. 34. Denied. Mrs. Mumma and Mrs. Morgan are without knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph, which therefore are deemed to be denied. 35. Denied. Mrs. Mumma and Mrs. Morgan are without knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph, which therefore are deemed to be denied. 36. Denied. Mrs. Mumma and Mrs. Morgan are without knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph, which therefore are deemed to be denied. 37. Denied. The allegations of this paragraph constitute legal conclusions and or otherwise do not require a response. They are, therefore, denied. 38. Denied. The allegations of this paragraph constitute legal conclusions and or otherwise do not require a response. They are, therefore, denied. 39. Admitted in part, denied in part. Mrs. Mumma and Mrs. Morgan admit that Mr. Mumma, II did not seek concurrence of counsel prior to filing the instant motion. Mrs. Mumma and Mrs. Morgan deny the remaining allegations of this paragraph. 40. Admitted. Judge Oler has previously decided motions and petitions filed in these proceedings. WHEREFORE, Mrs. Mumma and Mrs. Morgan respectfully request that Mr. Mumma, II,'s Further Motion for Recusal of Judge Oler Pursuant to Orphans' Court Order of October 3, 2007, be denied. MARTSON LAW OFFICES r ^i B t ~L y ' C 7 Geor .Faller, Jr:, Esquire , I.D. No. 49813 ~'~ No V. Otto, III, Esquire I.D. No. 27763 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Date: August 13, 2008 Attorneys for Barbara McK. Mumma & Lisa M. Morgan ` F:~.FILES\Clients\Mwnma 5844.1 (estate) 8747 (K'un)\5644. LMumma Es[a[e~5844-1.398.certservice CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent of Martson Law Offices, hereby certify that a copy of the foregoing Response of Barbara Mck. Mumma and Lisa M. Morgan to Further Motion of Robert M. Mumma, II for Recusal of Judge Oler Pursuant to Orphans' Court Order of October 3, 2007, was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Mr. Robert M. Mumma, II Box 58 Bowmansdale, PA 17008 Mr. Robert M. Mumma, II 6880 S.E. Harbor Circle Stuart, FL 34996-1968 Mr. Robert M. Mumma, II 840 Market Street Suite 164 Lemoyne, PA 17043 Ralph A. Jacobs, Esquire JACOBS & SINGER, LLC 1515 Market Street Suite 705 Philadelphia, PA 19102 (Attorney for Barbara Mann Mumma) Brady L. Green, Esquire MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, PA 19103-2921 (Attorney for Estate and Executrixes) Taylor P. Andrews, Esquire ANDREWS & JOHNSON 78 West Pomfret Street Carlisle, PA 17013 (Court-Appointed Auditor) W OFFICES By 10 East High Street Carlisle, PA 17013 (717) 243-3341 Dated: August 13, 2008