HomeMy WebLinkAbout10-17-08 (2)IN RE: ESTATE OF IN THE COURT OF COMMON PLEAS OF
ROBERT M. MUMMA, CUMBERLAND COUNTY, PENNSYLVANIA
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N0.21-86-398
APPLICATION OF ROBERT M. MUMMA, II TO AMEND ORDER fl
SEPTEMBER 19, 2008 TO CERTIFY FOR PURPOSES OF TAKING AN
INTERLOCUTORY APPEAL UNDER 42 PA C S A ~702(b)
AND NOW, comes Robert M. Mumma, II, pro se, and files the instant Application to
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Amend Order of September 19, 2008 to add a certification pursuant to 4:? Pa.C.S.A. §702(b),1
thereby permitting an interlocutory appeal in the event said order is deemed by the Pennsylvania
Superior Court has not appealable under Pa. R.A.P. 313, and in support thereof avers as follows:
1. The undersigned Applicant is Robert M. Mumma, II, an adult individual, acting
pro se in the instant case, who is a beneficiary of the above-captioned Estate and a contingent
remalnderman under the Trusts created under the Will of the Decedent. In addition, the
Applicant is a trustee of contingent beneficiaries / remaindermen under the above-captioned
Estate and Trusts.
2. On May 30, 2008, the undersigned filed further motions (a) for the recusal of
Judge Oler, and (b) for the vacation of the appointment of Attorney Andrews as auditor.
1 The instant application for certification is submitted with deference to Judge Oler's prior statement in his opinion
dated July 15, 2005 referencing that the undersigned "has appealed from interlocutory orders of this court without
securing the certification provided for underSection 702(bJ of the Judicial Code." Slip.op. p. 1.
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3. On June 26, 2008, Judge Oler issued an Order scheduling a hearing on said
further motions for August 18, 2008 at 9:30a.m. in Courtroom No. 1, Ciunberland County
Courthouse, Carlisle, Pennsylvania.
4. On August 13, 2008, the Executrices /Trustees filed Responses to both further
motions which contested any recusal of Judge Oler and any vacation of the appointment of
Attorney Andrews as auditor.
5. The hearing was conducted by Judge Oler on August 18, 2008 wherein testimony,
evidence, statements, or arguments were presented by way of the undersigned, Barbara M.
Mumma, and Linda Mumma Roth. Testimony was also presented from .Attorney Andrews and
William F. Manson, Esquire.
6. Following said hearing, Judge Oler issued an Order of Court dated August 18,
2008 indicating that Attorney Andrews would be replaced as auditor, closing the record, and
taking the matter under advisement. Said order further indicated the Court would receive briefs
from any interested party within 14 days with respect to issues perceived to exist with respect to
said hearing.
7. On September 2, 2008, the undersigned timely filed a 22 page brief with Judge
Oler.
None of the other interested parties timely filed a brief piusuant to Judge Oler's
Order of August 18, 2008.2
9. Judge Oler issued an Order dated September 19, 2008 entitled "IN RE:
FURTHER MOTION FOR RECUSAL OF JUDGE OLER and FURTHER MOTION FOR
VACATION OF APPOINTMENT OF ATTORNEY ANDREWS AS AUDITOR."
10. The Order dated September 19, 2008 denied the further motion for the recusal of
Judge Oler; it further vacated the appointment of Attorney Andrews as Auditor and appointed
Attorney Buckley as in his stead as Auditor. (An entire copy of Judge Oler's Order dated
September 19, 2008 is attached hereto as Exhibit A).
11. On September 29, 2008, the undersigned filed a 47 paragraph Motion for
Reconsideration of the Order dated September 19, 2008.
12. Said Motion for Reconsideration sought, inter alia, reconsideration of the recusal
of Judge Oler as well as the role of any auditor to whom received referrals of multiple motions,
requests, petitions, and preliminary objections involving questions of law. (An entire copy of the
Motion for Reconsideration is attached hereto as Exhibit B).
2 Counsel for the Executrices /Trustees filed a 4 page brief on September 11, 2008 which was beyond the 14 day
period set forth in the Order of August 18, 2008.
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13. The matters referred to the Auditor by the Orphans' Court Judge involve
Questions 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. Said questions of law raised in those matters which were rei~erred to the auditor 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.
14. The Auditor was appointed in this case to pass upon objections which raised
questions of fact, not matters which raise questions of law. Nevertheless, Judge Oler has
directed the Auditor in this case to hear, 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.
15. Pennsylvania's Probate, Estates, and Fiduciaries Code prc-vides 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). Where an auditor is appointed to pass upon specific objections to an
account, his authority is limited to disposing of those particular objections. Standard
Pennsylvania Practice, § 158:125 (citing In re Ford's Estate, 81 A. 200 (Pa. 1911)).
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16. 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).
17. There is no statute or rule which authorizes an auditor to :hear, consider, and
review matters which present questions of law and/or legal issues which are properly to be heard
and adjudicated by the court
18. 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 othenvise explain why the
Further Motion for Recusal of Judge Oler was denied.
19. In the 3 '/2 years between the appointment of Attorney Andrews in 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; as a result of the inactivity of the
Auditor for which his appointment was vacated and as a result of the concomitant inactivity of
Judge Oler, some matters before the Orphans' Court have languished anytivhere from 34 to 42
months without prompt disposition.
20. With the recent appointment of Attorney Buckley as the replacement auditor,
Judge Oler is 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 fi'.ling 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.
21. The Auditor's 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
be impugned to Judge Oler who remains entirely responsible for the prompt disposition of the
business of the court inasmuch as the Orphans' Court remains accountable for the stewardship of
estate cases brought before it.
22. Canon 3A(5) of the Code of Judicial Conduct provides that judges should dispose
promptly of the business of the court; Canon 3B(I) provides that judges should diligently
discharge their administrative responsibilities, maintain professional competence in judicial
administration, and facilitate the performance of the administrative responsibilities of court
officials.
23. At a prior hearing on April 18, 2005, Judge Oler recused himself from presiding
over a matter involving attorneys with Morgan, Lewis & Bockius, one of the two law firms
representing the Estate and/or the Executrices /Trustees, when he realized that there could be the
appearance of impropriety stemming from a familial connection between the Oler family and
Morgan, Lewis & Bockius; at the conclusion of said hearing, Judge Oler not only recused
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himself, but he also directed the Court Administrator to transfer the case to another judge of this
court.
24. Judge Oler not only has the aforesaid ties to Morgan, Lewis & Bockius, but he
also has ties to the other law firm representing the Estate and/or the Executrices /Trustees given
that he previously practiced law together with the principal of the Martson Law Office; after
listening to Attorney Martson testify at the hearing on August 18, 2008, Judge Oler
acknowledged that Mr. Martson either had been a material witness in this case (given his
execution of an affidavit in lieu of attending a deposition in Apri12004) 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.
25. At the hearings on August 18, 2008, it was further confirmed that Judge Oler had
worked under Attorney Andrews for many years in the county's Public Defender office;
therefore, Canon 3C(1)(b) is implicated again as there is yet another lawyer in the matter in
controversy who previously practiced law with the judge in this case.
26. The Motion for Reconsideration of the Order dated September 19, 2008 again
sought an order for the recusal or disqualification of Judge Oler as the Orphans' Court Judge in
this case since the evidence of record reflects the requisite "cumulative effect" of assignments of
instances where the "appearance" of impropriety might reasonably be questioned along with
discernible violations of several Canons of the Code of Judicial Conduct.
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27. On October 3, 2008, Judge Oler issued an Order which denied the Motion for
Reconsideration of the Order of September 19, 2008.
28. The recusal of Judge Oler (under the aforecited Canons of the Code of Judicial
Conduct and in accordance with the other authority cited by the undersigned in the Brief and in
the Motion for Reconsideration) and the propriety of referring matters to the Auditor which
involve questions of law as opposed to questions of fact constitute controlling questions of law in
this case as to which there is a substantial ground for difference of opinion.
29. Although the undersigned intends to file timely a Notice of Appeal under Pa.
R.A.P. 313 in the event the Pennsylvania Superior Court determines the Order of September 19,
2008 is an appealable collateral order, the instant application is being filed with respect to Pa.
R.A.P. 312 and 1311 which address "Interlocutory Appeals by Permissic-n".
30. In the event it is determined that the Order of September ;19, 2008 is not an
appealable collateral order, but rather it is determined that said order is interlocutory in nature
and must be appealed upon permission sought and granted, the granting of the instant
application to certify the order for purposes of taking an interlocutory appeal would be in the
interests of justice inasmuch as the order involves a controlling question of law as to which there
is substantial ground for difference of opinion, and an immediate appeal of both "the recusal of
Judge Oler" issue and/or "the Auditor's authority" issue may materially advance the ultimate
determination of this matter.
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WHEREFORE, the undersigned respectfully requests that this Honorable Court amend its
Order of September 19, 2008 pursuant to 42 Pa.C.S.A. §702(b) to state that "the order involves a
controlling question of law as to which there is substantial ground for difference of opinion and
that an immediate appeal from the order may materially advance the ultimate determination of
this matter" thereby permitting the undersigned to take an immediate appeal therefrom.
Respectfully submitted,
A
Robert M. Mumma, II
P.O. BOX S8
Bowmansdale, PA 17008
(717) 612-9720
PROSE
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IN RE: ESTATE OF IN THE COURT OF COMMON PLEAS OF
ROBERT M. MUMMA CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
N0. 21-86-398 ORPHANS' COURT
IN RE: FURTHER MOTION FOR RECUSAL OF ,JUDGE
OLER and FURTHER MOTION FOR VACATION OF
APPOINTMENT OF ATTORNEY ANDREWS AS AUDITOR
AND NOW, this 19`" day of September, 2008, upon consideration of the
Further Motion for Recusal of Judge Oler and Further Motion for Vacation of
Appointment of Attorney Andrews As Auditor, filed by Robert M. Mumma, II,
pro se, and following a hearing held on August 18, 2008, and it having appeared to
the court that the duties of the auditor in other areas of his practice will not permit
him to continue to devote the amount of time to this case which is required by the
multiplicity of filings associated with it, and it appearing further that the parties
have not been able to agree on a nominee for replacement auditor, it is ordered and
directed as follows:
1. The Further Motion for Recusal of Judge Oler is denied;
2. The appointment of Taylor P. Andrews, Esq., is vacated C' '-~'
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and Joseph D. Buckley, Esq., is appointed Auditor in his stead; ~'~~; ,,
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3. Any bill which Mr. Andrews cares to submit for his _: • i~
services to date shall be filed of record within 30 days oiEthe _ _ -~ =' - _
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date of this order, shall be considered by the new Auditor in the-°
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course of his duties, and shall be a subject of recommendation
in his final report; and
4. All matters previously referred to the Auditor shall be
deemed referred to the new Auditor, in accordance with the
terms of the referral.
BY THE C'OUR.T,
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J~esley Ole>;; Jr., J.
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IN TIC COURT OF COMMON PLEAS
OF CUMBE',RLA-ND COUNTY, PENNSYLVANL4
IN RE: ESTATE OF ORPHAN'S COURT D1VIS~QN ^~ _
ROBERT M.11T[,J1NIl1~tA, _ __~ c~ E - ~~
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NO.21-86-398 ~:
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MOTION FOR RECONSIDERATION
OF THE ORPHANS' COURT ORDER DATED DER 19 ?pp~
AND NOW, comes Robert 11~L Mimouna, ~ pro se, who files the iru~
motiion for
d~ation of the Orphans' Court Order dataCl 19, 2008, and in support thea~eof
avers as follows:
1. On May 30, 2008, the Mova~ filed a Furtber M~ion for Recvsal of Judge
Olen.
2. Also on May 30, 2008, the Movant ~~ a Finrther ~~ for Vaca4ion of
Appointment of Attorney Andnrws as Auditor.
3. Paragraph #5 of each of the afot~aid Further Motia~s were identical inas~muc.h as each
stated as follows: "In a Petition for Appointment of Auditor filed January 5, 2005, the
F~ocutrices of the above captioned Estate sought .~ ~ of an Auditor `'`to pasts
ypon the objections" that vwere filed by the Movant which the Fxe~trices avea+ed had
`~'aise[d_ j questions offact".
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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 S 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 APPOINTMEN'T' OF ATTORNEY ANDRI3WS AS AUDITOR."
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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 referred 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 are matters which involve questions 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 / Tnistees 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.
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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 hear, consider, and review multiple
issues and masters 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. Standard 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 adjudicased by the court.
1 This section of the Code also provides for Auditors of Accoun 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.
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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 '/2 years between the appointment of Attorney Andrews in January 2005 and the
hearings on August 18, 200$, 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 (hphans' 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.
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
discharge their administrative responsibilities, maintain professional competence in
judicial administration, and facilitate the performance of the administrative
responsibilities of court officials.
33. In 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 '/z 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 "actual" evidence of same.
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 Manson 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 Apri1:2004) 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 as judge 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 O1er 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 ,;,~
40. The judge presiding over these matters has ties to bath of the twa Iaw firms representing
the Executrices, as well as to the Auditor whom he appointed in :January 2005 whose
inactivity persisted for 3 %z 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, 199.
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.
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45. Because this motion for reconsideration is once again seeking an order for the r~usal 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 frrom 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 bans.
so
WHEREFORE, the undersigned Movant respectftilly 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 bans.
Respectfully submitted,
~~w
Ro rt M. Mumma, II
Box 58
Bowmansdale, PA 17008
(717) 612-9720
PRD SE
11
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
Maztson 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 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
Carlisle, PA 17013
Courtesy copy:
Taylor P. Andrews, Esquire
78 W. Pomfret St.
Cazlisle, PA 17013
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DATE: September, 2008
BY: ~ ~~
obert M. Mumma, II
Box 58
Bowmansdale, PA 17008
717-612.-9720
PROSE
CERTIFICATE OF SERVICE
I, Robert M. Mumma, II, pro se, do hereby certify that a copy of the foregoing
Application to Amend Order of September 19, 2008 to Certify for Purposes of Taking an
Interlocutory Appeal 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 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, PA 19102
Linda Mumma Roth
PO Box 480
Mechanicsburg, PA 17055
Joseph D. Buckley, Esquire
Court-Appointed Auditor
1237 Holly Pike
Carlisle, PA 17013
DATE: October 17, 2008
~~~~~~~~
BY: '~`rt~,~~
Robert M. Mumma, II
Box 58
Bowmansdale, PA 17008
717-612-9720
PROSE