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HomeMy WebLinkAbout11-17-08 IN RE: ESTATE OF IN THE COURT OF COMMON PLEAS ROBERT M. MUMMA, CUMBERLAND COUNTY, PENNSYLVANIA Deceased ORPHAN'S COURT DIVISION . N0.21-86-398 ROBERT M. MUMMA II'S CONCISE STATEMENT OF MATTERS COMPLAINED OF ON APPEAL PURSUANT TO PA.R.A.P.1925(b) c7 ~, c.:~_,7 ~ _r, ,.;~ ~ .l ~- - ~ n vJ ~' f _ C= . -' I h~ ~,~ ~~~ ~ .\ ~~ t 1 ~ - ~ ' 1 `, -t ~ :. ~~ j _ 1 Vi ROBERT M. MUMMA, II Box F Grantham, PA 17027 (717) 612 - 9720 PROSE AND NOW, pursuant to Pa.R.A.P. 1925(b)' and the Order of this Court dated October 27, 2008, comes Robert M. Mumma, II, pro se, who hereby presents this Concise Statement of Matters Complained of On Appeal; For purposes of Pa.R.A.P. 1925(b)(4)(vi), the undersigned hereby prefaces this Rule 1925(b) Statement by noting that those errors complained of as described in general terms herein have been so identified in general terms to the extent the parties are unable to readily discern the basis for the judge's decision and rulings, which is even more so since no discursive opinion was issued by the judge; In support of the instant Statement of Matters Complained of On Appeal the undersigned states as follows: 1. Judge Oler's Orders of September 19, 2008 and October 3, 2008 constitute errors of law and abuses of discretion as same suggest the Judge did not undertake an adequate and comprehensive review and analysis of the record, the factual issues, and the legal issues as denoted by the fact that the Orders were but a few sentences or paragraphs in length, and, most importantly, said Orders were not accompanied by any discursive opinion(s) which tangibly set forth the logical and analytical explanations as to why the Judge arrived at his decision(s). l See, Pa.R.A.P. 1925(b)(4)(iv) as to non-waiver based upon the number of errors raised; see also. Eiser v. Brown & Williamson Tobacco Corp., 938 A.2d 417 (Pa. 2007)(a party may in good faith believe that a larger number of issues are worthy of pursuing on appeal; Supreme Court finds no waiver due to number of issues in a Rule 1925(b) statement where appellant was not trying to thwart the appellate process, where meaningful review was not impaired, where the lawsuit by all accounts is a complicated one, and where the appeal otherwise complies with the mandates of the appellate process); see also, Ferris v. Harkins, 940 A.2d 388 (Pa. Super. 2007); Donou~he v. Lincoln Elec. Co.. 936 A.2d 52 (Pa. Super. 2007). 2. Likewise, Judge Oler's Order of September 19, 2008 constitutes an error of law and an abuse of discretion as it reveals the Judge did not undertake an adequate and comprehensive review and analysis of the specific issues raised in the briefs filed subsequent to the August 18, 2008 proceedings, all issues requiring a judicial examination by the court which reveals the logical and analytical explanations as to why the Judge issued his decision. 3. Judge Oler committed an error of law and an abuse of discretion by the continuation of his longstanding practice in this case of referring matters to an auditor which exceed the scope of the auditor's original appointment. To wit, the auditor was originally appointed when the Executrices filed a Petition for Appointment of Auditor on January 5, 2005 "to pass upon the objections" that had been filed by the undersigned which the Executrices averred had "raise[d] questions of fact". Subsequently, Judge Oler has used the Auditor's appointment has a repository for referrals of virtually every matter filed with the court inclusive of motions, requests, petitions, and preliminary objections which raise a panoply of questions of law (as opposed to the aforesaid questions of fact raised by objections to the account). 4. Specifically, Judge Oler committed an error of law and an abuse of discretion by the continuation of his longstanding practice in this case of referring matters to an auditor which exceed the scope of the auditor's original appointment including court filings related to the removal of the Executrices /Trustees, the Estate's waiver to contest a validly revoked disclaimer, the right to a jury trial, and the deemed denial of exceptions pursuant to Pa. O.C.R. 7.1(f). 5. Judge Oler committed an error of law and an abuse of discretion by the continuation of his longstanding practice in this case of referring matters to an auditor which exceed the scope of the auditor's original appointment as evidenced by the recent appointment of Attorney Buckley as the replacement auditor wherein Judge Oler has again referred matters to the Auditor "for inclusion in the issues assigned to him" as reflected by his Order dated September 22, 2008 regarding a filing by Barbara Mann Mumma (those issues assigned to Attorney Buckley include the "deemed referral" of all prior matters previously assigned to Attorney Andrews as evidenced by Paragraph #4 of the September 19, 2008 Order). 6. Judge Oler's aforesaid practice constitutes an error of law and an abuse of discretion by not following the local rules with respect to the scope of an auditor's appointment regarding the disposition of matters which raise questions of law. See, Local Rule 6.10-2(a), Rules of the Court of Common Pleas, Orphans' Court Division. 7. Judge Oler's aforesaid practice constitutes an error of law and an abuse of discretion by not following 20 Pa. C.S. §751(1) which limits the court's power to appoint Masters to investigate issues of fact. 8. Judge Oler committed an error of law and an abuse of discretion by refusing to recuse or disqualify himself inasmuch as he alone was responsible for the prompt disposition of the business of the court as the Orphans' Court judge who remained accountable for the stewardship of this Estate case, yet matters brought before the Orphans' Court in this case have languished for months and years since the original appointment of the auditor in January 2005. (See, Further Motion for Recusal of Judge Oler filed on May 30, 2008; Further Motion for Vacation of Appointment of Attorney Andrews as Auditor filed on May 30, 2008; Brief in Support of Recusal Motion filed on September 2, 2008; Motion for Reconsideration of Order Dated September 19, 2008 filed on September 29, 2008; Application to Amend Order of September 19, 2008 to Certify for Purposes of Taking an Interlocutory Appeal Under 42 Pa. C.S.A. §702(b), said filings being incorporated herein). 9. Judge Oler committed an error of law and an abuse of discretion by refusing to recuse or disqualify himself in light of Canon 3A(5) of the Code of Judicial Conduct which provides that judges should dispose promptly of the business of the court. 10. Judge Oler committed an error of law and an abuse of discretion by not undertaking appropriate measures to investigate why no interim reports or recommended orders were forthcoming from the auditor whom he appointed notwithstanding the fact that 19 separate matters were referred by Judge Oler to the Auditor for those specific purposes between January 2005 and the August 18, 2008 proceedings, with the culmination of such inactivity of the Auditor and the concomitant inactivity of Judge Oler resulting in the vacation of the auditor's appointment. 11. Judge Oler committed an error of law and an abuse of discretion by not undertaking appropriate measures to investigate why Attorney Andrews failed to schedule any pre-hearing conferences in this case following the sole pre-hearing conference held by said Auditor in October 2006, much less the failure to schedule an actual Auditor's hearing designed to resolve those matters which were entrusted to the Auditor by the Orphans' Court. 12. Judge Oler committed an error of law and an abuse of discretion by refusing to recuse or disqualify himself in light of Canon 3B(I) of the Code of Judicial Conduct which 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. 13. Judge Oler committed an error of law and an abuse of discretion by refusing to recuse or disqualify himself in light of the appearance of impropriety resulting from the familial and employment relationships between himself and (i) Martson, Lewis & Bockius, (ii) The Martson Law Office, and/or (iii) Attorney Andrews. 14. Judge Oler committed an error of law and an abuse of discretion by not refusing himself from further participation in these proceedings after he had previously recused himself at the conclusion of the April 18, 2005 hearing in light of a disqualifying relationship between himself and Morgan, Lewis &Bockius, wherein at that time he had directed the Court Administrator to transfer the matter to another judge of this court. 15. Judge Oler committed an error of law and an abuse of discretion by refusing to recuse or disqualify himself after listening to Attorney Martson testify at the hearing an August 18, 2008 whereupon 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 April 2004) or that Mr. Martson would be called again as a material witness in this case during future proceedings (most likely with respect to the disclaimer issues). 16. Judge Oler committed an error of law and an abuse of discretion by refusing to recuse or disqualify himself in light of Attorney Martson's testimony under Canon 3C(1)(b) of the Code of Judicial Conduct which mandates his recusal or disqualification as judge in these proceedings by virtue of said Canon's "such lawyer has been a material witness" provision. 17. Judge Oler committed an error of law and an abuse of discretion by refusing to recuse or disqualify himself after listening to Attorney Andrews testify at the hearing on August 18, 2008 whereupon it was acknowledged that the judge had practiced law with Attorney Andrews in the Public Defender's office. 18. Judge Oler committed an error of law and an abuse of discretion by refusing to recuse or disqualify himself in light of Attorney Andrews's testimony under Canon 3C(1)(b) of the Code of Judicial Conduct which mandates his recusal or disqualification as judge in these proceedings by virtue of said Canon's "such lawyer has been a material witness" provision. 19. Judge Oler committed an error of law and an abuse of discretion by not recusing himself from further participation in these proceedings after he had previously recused himself from another matter involving the undersigned in January 1997 because a deposition exhibit contained a reference to a discussion the Judge had with another litigant in that case about legal research being done, said discussion occurring before Judge Oler was elected to the bench. See, Exhibit 3 -August 18, 2008 hearing (copy of pre-trial conference order from proceedings held on January 2, 1997). 20. Judge Oler committed an error of law and an abuse of discretion by refusing to recuse or disqualify himself in light of the evidence of record which reflects the decisional law's requisite "cumulative effect" of assignments of instances where the appearance of impropriety might reasonably be questioned, combined with the discernible violations of the aforesaid Canons of the Code of Judicial Conduct. 21. Judge Oler committed an error of law and an abuse of discretion in his Order of September 19, 2008 by authorizing Attorney Andrews to submit a bill "for his services to date" inasmuch as there can be no reasonable justification to permit a vacated Auditor to submit a bill for services he performed when the Auditor himself testified as to the inadequacies and failures of the auditor proceedings for which he was responsible in the first instance, and such an auditor 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. 22. Judge Oler committed an error of law and an abuse of discretion by refusing to have the issue of his recusal or disqualification of as the Orphans' Court judge in this case to be heard and/or assigned for disposition by the court en banc, especially in light of the fact that Judge Oler has twice refused to do so of his own accord, and 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. 23. Judge Oler's practices constitute an error of law and an abuse of discretion to the extent that the court's supervision of the administration of this Estate (and the manner in which the court's acts and/or omissions have enabled the Executrices /Trustees, Morgan, Lewis & Bockius, and/or The Martson Law Office to utilize the court and the court system) manifests violations of the due process of law and unconstitutional deprivations of the property interests of the beneficiaries. Respectfully submitted, see .. R6BERT M. MUMMA, II Box F Grantham, PA 17027 (717) 612 - 9720 PROSE CERTIFICATE OF SERVICE I, Robert M. Mumma, II, pro se, do hereby certify that I caused a copy of the foregoing Rule 1925(b) Statement to be served on this date as follows: 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 Joseph D. Buckley, Esquire Court-Appointed Auditor 1237 Holly Pike Carlisle, PA 17013 Linda Mumma Roth PO Box 480 Mechanicsburg, PA 17055 By hand-deliverin tg o Judge's Chambers /Secretary: Honorable J. Wesley Oler, Jr. Cumberland County Court House Fourth Floor High & Hanover Streets Carlisle, PA 17013 DATE: November 17, 2008 BY: Robert M. Mumma. II Box F Grantham, PA 17027 717-612-9720 PRO SE