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HomeMy WebLinkAbout09-29-08IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA IN RE: ESTATE OF ORPHAN'S COURT DIVISd~N Q _,.., ROBERT M.1~11UMMA ~ cn ~ <- _ k~_~ Deceased N0 21 8 ~ ~ =~-' tD = ~ ~~ . - 6-398 = : = . ' ~ _- y~? ~ _ - ~ , ~ - ~ ;~ ~ MOTION FOR RECONSIDERATION OF THE ORPHANS' COURT ORDER DATED SEPTEMBER 19 2008 AND NOW, comes Robert M. Mumma, II, pro se, who files the instant motion for reconsideration of the Orphans' Court Order dated September 19, 2008, and in support thereof avers as follows: 1. On May 30, 2008, the undersigned Movant filed a Further Motion for Recusal of Judge Oler. 2. Also on May 30, 2008, the undersigned Movant filed a Further Motion for Vacation of Appointment of Attorney Andrews as Auditor. 3. Paragraph #5 of each of the aforesaid Further Motions were identical inasmuch as each stated as follows: "In a Petition for Appointment of Auditor filed January 5, 2005, the Executrices of the above-captioned Estate sought the appointment of an Auditor "to pass upon the objections" that were filed by the Movant which the Executrices averred had "raise[d] questions of fact". 4. On August 13, 2008, the Executrices /Trustees filed Answers to each of the aforesaid Further Motions which each stated as follows in response to Paragraph #5: "Admitted." 5. A hearing was conducted on August 18, 2008 by Judge Oler with respect to both motions. 6. At the hearing on August 18, 2008, the undersigned Movant endeavored to show that 19 separate matters (motions, requests, a petition, and preliminary objections) had been referred by Judge Oler to Attorney Andrews for the purposes of an interim report and/or a recommended order, while 5 other matters filed by the Estate counsel (motions and a petition) had not been addressed by Judge Oler either as the Orphans' Court Judge or via referral to the Auditor. 7. Upon consideration of the motion, and following the presentation of evidence at said hearing, Judge Oler issued an Order dated August 18, 2008 which stated that the Court would appoint an auditor to replace Attorney Andrews as auditor. 8. Judge Oler's Order dated August 18, 2008 concentrated on the disposition of the Further Motion for Vacation of Appointment of Attorney Andrews as Auditor (indicating the Court would choose the replacement auditor in the event the interested parties were not able to agree within 7 days on such a replacement); said Order did not frame any disposition of the Further Motion for his recusal as judge. 9. Thereafter, Judge Oler issued an Order dated September 19, 2008 which did dispose of both of the aforesaid Further Motions, same being entitled as follows: "IN RE: FURTHER MOTION FOR RECUSAL OF JUDGE OLER and FURTHER MOTION FOR VACATION OF APPOINTMENT OF ATTORNEY ANDREWS AS AUDITOR." 2 10. The Order dated September 19, 2008 ordered and directed as follows: 1. The Further Motion for Recusal of Judge Oler is denied; 2. The appoint of Taylor P. Andrews, Esq., is vacated and Joseph D. Buckley, Esq. is appointed Auditor in his stead; 3. Any bill which Mr. Andrews cares to submit for his services to date shall be filed of record within 30 days of the date of this order, shall be considered by the new Auditor in the course of his duties, and shall be a subject of recommendation in his final report; and 4. All matters previously refen~ed to the Auditor shall be deemed referred to the new Auditor, in accordance with the terms of the referral. 11. As noted above, the Executrices /Trustees have admitted that their Petition for Appointment of Auditor sought the appointment of an auditor to pass upon objections which raised questions of fact. 12. At least 10 of the outstanding matters filed by the undersigned Movant (motions, requests, a petition, and preliminary objections) which were previously referred to Attorney Andrews aze matters which involve 9uestions of law and, as such, are beyond the scope of those questions of fact raised by the objections filed to the accounts for which the Executrices /Trustees sought the appointment of an auditor. 13. Questions of law raised in those matters filed by the undersigned Movant which were previously referred to Attorney Andrews by Judge Oler include, but are not limited to, questions of law involving the removal of the Executrices /Trustees, the Estate's waiver to contest a validly revoked disclaimer, the right to a jury trial, the deemed denial of exceptions pursuant to Pa. O.C.R. 7.1(f), and other important, determinative, critical and dispositive matters and issues which entirely raise questions of law as opposed to questions of fact. 3 14. Pennsylvania's Probate, Estates, and Fiduciaries Code provides the orphans' court divisions of the courts of common pleas the power to appoint Masters "to investigate any issue of fact" at 20 Pa. C.S. §751(1).1 15. The Auditor was appointed in this case to pass upon objections which raised questions of fact, not matters which raise questions of law. 16. Judge Oler has directed the Auditor in this case to heaz, consider, and review multiple issues and matters which go beyond the scope of the Auditor's appointment inasmuch as said matters involve questions of law as opposed to questions of fact raised by the objections to the account. See, Paragraph #13 above. 17. Where an auditor is appointed to pass upon specific objections to an account, his authority is limited to disposing of those particulaz objections. Standazd Pennsylvania Practice, § 158:125 (citing In re Ford's Estate 81 A. 200 (Pa. 1911)). 18. There is no statute or rule which authorizes an auditor to heaz, consider, and review matters which present questions of law and/or legal issues which are properly to be heard and adjudicated by the court. 1 This section of the Code also provides for Auditors of Accounts of Fiduciaries "to examine and audit an account and to determine distribution" at 20 Pa.C.S. §751(2) and/or Auditors to State Accounts "when a proper account cannot be obtained from a fiduciary or other person required to state an account" at 20 Pa.C.S. §751(3). This section of the Code does not provide for the appointment of Auditors to investigate questions of fact, much less to determine matters which entirely raise questions of law. 4 19. Even if questions of law were raised by those objections for which the auditor was appointed to pass upon (as opposed to the actual reason he was appointed, i.e., to pass upon questions of fact raised by the objections), local rules would require nonetheless that such questions of law be decided by the Court and not by the auditor. See, C.C.R.P. 6.10-2(a). 20. The aforesaid motions, requests, a petition, and preliminary objections filed by the undersigned Movant which were previously referred to the Auditor which raise questions of law necessarily involve matters which go beyond those questions of fact raised by the objections to the account for which the auditor was appointed; therefore, the auditor is without any authority, either by statute or rule, to pass upon said questions of law. 21. Although the Further Motion for Recusal of Judge Oler was the subject of a hearing on August 18, 2008, and although the matter was briefed, the Order of September 19, 2008 did not set forth any basis, foundation, grounds, rationale, or otherwise explain why the Further Motion for Recusal of Judge Oler was denied. 22. Following the appointment of Attorney Andrews as Auditor in January 2005 to pass upon the objections to the account which raised questions of fact, Judge Oler would refer any motion, petition, request, and even pleadings filed by any interested party to the Auditor for purposes of an interim report or to submit a recommended order. 23. After referring matters to Attorney Andrews, Judge Oler would not take any further judicial or administrative action with respect to the filings of the parties and would await the Auditor's interim report and/or recommended order. 5 24. As a result of the inactivity of the Auditor (for which his appointment was eventually vacated) and as a result of the concomitant inactivity of Judge Oler, some matters before the Orphans' Court have languished anywhere from 34 to 42 months without prompt disposition. 25. In the 3 %z years between the appointment of Attorney Andrews 1n January 2005 and the hearings on August 18, 2008, Judge Oler undertook no measures to investigate why no interim reports or recommended orders were forthcoming notwithstanding the fact that 19 separate matters were referred by him for such purposes. 26. Judge Oler did not investigate why Attorney Andrews failed to schedule any pre-hearing conferences in this case following the sole pre-hearing conference held in October 2006, much less why there was a failure to schedule an actual Auditor's hearing designed to resolve those matters which were entrusted to the Auditor by the Orphans' Court. 27. With the recent appointment of Attorney Buckley as the replacement auditor, Judge Oler is once again referring matters to the Auditor "for inclusion in the issues assigned to him" as reflected by his Order dated September 22, 2008 regarding a recent filing by Barbara Mann Mumma; those issues assigned to Attorney Buckley ostensibly include the "deemed referral" of all prior matters previously assigned to Attorney Andrews as evidenced by Paragraph #4 of the September 19, 2008 Order. 28. The Orphans' Court remains accountable for the stewardship of estate cases brought before it, and the Orphans' Court Judge must answer for the delays occasioned by the auditor whom he appointed as a court official to dispose promptly of such business of the court. 6 29. Given that Attorney Andrew's appointment as auditor had to be vacated, Judge Oler's role (whether supervisory, administrative, or judicial) in the ongoing delays and the lack of progress in marshalling this case to a prompt disposition must likewise be condemned. 30. Attorney Andrews' failure to perform his assigned duties as Auditor, with the subsequent vacation of his appointment and his removal as Auditor by the Orphans' Court, must necessarily be impugned to Judge Oler who remains entirely responsible for the prompt disposition of the business of the court. 31. Canon 3A(5) of the Code of Judicial Conduct provides that judges should dispose promptly of the business of the courts. 32. Canon 3B(I) of the Code of Judicial Conduct provides that judges should diligently dischazge their administrative responsibilities, maintain professional competence in judicial administration, and facilitate the performance of the administrative responsibilities of court officials. 33. )n addition to the fact that Judge Oler neglected or failed to perform certain judicial duties required by the Code of Judicial Conduct as evidenced by the removal of the Auditor after 3 %2 years of delay, there is evidence of the requisite circumstances, factors, and/or relationships which illustrates the "appearance" of impropriety, unfairness, bias, Prejudice, and/or improper influence in this case which compels the recusal of Judge Oler or mandates his disqualification. 34. The evidence of record of the "appearance" of impropriety, unfairness, bias, prejudice, and/or improper influence in this case compels the recusal of Judge Oler or mandates his disqualification, notwithstanding whether or not there is any "act~~° evidence of same. 7 35.On April 18, 2005, Judge Oler previously recused himself from presiding over a matter involving attorneys with Morgan, Lewis & Bockius, one of the two law firms which represents the Estate and/or the Executrices, when he realized that there could be the appearance of impropriety stemming from a familial connection between the Oler family and Morgan, Lewis & Bockius. 36. At the conclusion of the aforesaid April 18, 2005 hearing, Judge Oler not only recused himself, but he also directed the Court Administrator to transfer the case to another judge of this court. 37. Judge Oler not only has ties to one of the two law firms that represent the Executrices of the Estate, but he has ties to both of the two law firms given that he previously practiced law together with the principal of the Martson Law Office. (See, N.T. 08-18-2008, testimony of William Manson; see also statements on the record of Judge Oler at said hearing). 38. After listening to Attorney Martson testify at the hearing on August 18, 2008, Judge Oler acknowledged that Mr. Manson either had been a material witness in this case (given his execution of an affidavit in lieu of attending a deposition in April 2004) or he would be called again as a material witness in this case during future proceedings (most likely with respect to the disclaimer issues); such an acknowledgment by Judge Oler mandates his recusal or disqualification asjudge in these proceedings by virtue of the "such lawyer has been a material witness" provision of Canon 3.C(1)(b) of the Code of Judicial Conduct. 8 39. At the hearings on August 18, 2008, it was confirmed that Judge Oler had worked under Attorney Andrews for many years in the county's public Defender office; therefore, Canon 3C(b)(1) is implicated once again as there is yet another lawyer in the matter in controversy who previously practiced law with the judge in this case. 40. The judge presiding over these matters has ties to both of the two law firms representing the Executrices, as well as to the Auditor whom he appointed in January 2005 whose inactivity persisted for 3 % years under Judge Oler's supervision until said appointment was vacated upon Further Motion filed and prosecuted by the undersigned Movant. 41. Judge Oler previously recused himself from another matter involving the undersigned Movant in January 1997 because a deposition exhibit contained a reference to a discussion the Judge had with the another litigant in that case about research being done concerning issues in the case, said prior discussion occurring before Judge Oler was elected to the bench. (See, Exhibit 3 from the hearings on August 18, 2008 -copy of pre- trial conference order from proceedings held on January 2, 1997). 42. In the Order of September 19, 2008, Judge Oler authorizes Attorney Andrews to submit a bill "for his services to date". 43. There is no reasonable justification to permit the now-vacated Auditor to submit a bill for services he performed when he himself testified as to the inadequacies and failures of the auditor proceedings for which he was responsible in the first instance. 44. Attorney Andrews should not be compensated as a court official under the Code of Judicial Conduct inasmuch as he admittedly neglected to perform, or failed to perform timely, his court-appointed duties. 9 45. Because this motion for reconsideration is once again seeking an order for the recusal or disqualification of Judge Oler as the Orphans' Court Judge in this case, and since Judge Oler has twice refused to do so of his own accord, and since the evidence of record now reflects the requisite "cumulative effect" of assignments of instances where impartiality might reasonably be questioned along with discernible violations of several Canons of the Code of Judicial Conduct, the instant motion for reconsideration should be assigned for disposition by the court en banc. 46. The Movant has not obtained the concurrence of 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. 47. The Honorable J. Wesley Oler, Jr., has previously ruled on prior motions filed in this case; however, disposition of the instant motion for reconsideration is sought from the Court en Banc. 10 WHEREFORE, the undersigned Movant respectfully requests that this Honorable Court reconsider its Order of September 19, 2008, and that this Court issue an order which grants the further motion for recusal of Judge Oler and which transfer this case to another Orphans' Court judge. Furthermore, this Honorable Court should reconsider its Order of September 19, 2008 to the extent that its "deemed referral" to Attorney Buckley as the new Auditor will encompass previously referred matters which raise questions of law (same being more properly heard and adjudicated by the Court and not by the Auditor). Furthermore, this Honorable Court should reconsider its Order of September 19, 2008 to the extent it allows Attorney Andrews to be compensated as a court official whenever his court-appointment was vacated as a result of his admitted neglect of or failure to perform timely his court_appointed duties. Finally, this motion for reconsideration should be heard and determined by the Court en banc. Respectfully submitted, Ro rt M. Mumma, II BOX S$ Bowmansdale, PA 17008 (7I7) 612-9720 PROSE iZ CERTIFICATE OF SERVICE I, Robert M. Mumma, II, pro se, do hereby certify that a copy of the foregoing Motion for Reconsideration of the Orphans' Court Order dated September 19, 2008 was served this date by U.S. Mail, first class, postage prepaid, addressed to: George B. Faller, Jr., Esquire No V. Otto, III, Esquire Martson Law OfI•ices 10 East High Street Cazlisle, PA 17013 Brady Green, Esquire Morgan, Lewis & Bockius, LLP 1701 Market Street Philadelphia, PA 19103-2921 Ralph Jacobs, Esquire 1515 Mazket Street -Suite 705 Philadelphia, PA 19102 Linda. Mumma Roth PO Box 480 Mechanicsburg, PA 17055 Joseph D. Buckley, Esquire Court-Appointed Auditor 1237 Holly Pike Cazlisle, PA 17013 Courtesy copy: Taylor P. Andrews, Esquire 78 W. Pomfret St. Cazlisle, PA 17013 Z~ DATE: September ~, 2008 BY: obert M. Mumma, II Box 58 Bowmansdale, PA 17008 717-612-9720 PROSE