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HomeMy WebLinkAbout11-19-08 INDEX TO WITNESSES FOR ROBERT M. MUMMA, II DIRECT CROSS REDIRECT RECROSS William F. Martson 8 31 By Mr. Green 29 -- Taylor P. Andrews 34 -- By Linda Mumma 59 -- Barbara Mann Mumma 73 -- -- -- Taylor P. Andrews 78 113 By Mr. Jacobs 109 -- 2 • INDEX TO EXHIBITS FOR ROBERT M. MUMMA, II MARKED ADMITTED Ex. No. 1 - April 18, 2005 Transcript 66 67 Ex. No. 2 - August 29, 2005 Transcript 66 67 Ex. No. 3 - pretrial conference January 2, 1997 66 67 Ex. No. 4 - April 22, 2005 Order of Court 92 117 Ex. No. 5 - April 29, 2005 Order of Court 96 117 Ex. No. 6 - January 14, 2008 letter 102 117 Ex. No. 7 - March 11, 2008 letter 105 117 3 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Please be seated. This is the time and place for a hearing on two motions filed by Robert M. Mumma, II, in the case of Estate of Robert M. Mumma at No. 21-86-398. I will initially ask counsel and Mr. Mumma to identify themselves for the record, and if you would also say whom you represent. Mr. Faller. MR. FALLER: George Faller, Jr., Martson Law Offices, co-counsel for Barbara McK. Mumma, Lisa Morgan, executrixes and trustees. THE COURT: All right. MR. GREEN: Brady Green from Morgan Lewis & Bockius from Philadelphia for the same parties, Your Honor. THE COURT: All right. Thank you. MR. MUMMA: Robert Mumma, II, pro se. THE COURT: All right. MR. JACOBS: Ralph Jacobs representing Barbara Mann Mumma. THE COURT: All right. Very good. And is there anybody else present? Any other parties? I see none. MR. MUMMA: Well, Your Honor, my sister Linda Mumma is here in the courtroom. THE COURT: All right. And, Linda Mumma, are you representing yourself? LINDA MUMMA: I am just here to understand what the process is here. 4 • 1 THE COURT: I'm sorry? 2 LINDA MUMMA: I'm just here to listen to the 3 hearing. 4 THE COURT: All right. 5 LINDA MUMMA: And if Bob wants to call me, 6 that's fine. 7 THE COURT: So you may be a witness? 8 LINDA MUMMA: Yes. 9 THE COURT: All right. Taylor P. Andrews, 10 Esquire, the Auditor in this case, is on his way from a 11 preliminary hearing. So I think probably the best thing to 12 do would be to take the motion regarding the request for my 13 recusal first, and we will wait for Mr. Andrews to arrive to 14 deal with the motion regarding him. 15 I believe this is at least the second motion 16 to recuse or vacate Mr. Andrews' appointment, and it is, I 17 believe, at least the second or perhaps more than the second 18 motion to recuse me in the case. It is your motion, 19 Mr. Mumma. What has changed since the last ruling on this 20 type of motion? 21 MR. MUMMA: Well, we found out some 22 additional information, Your Honor, that we think we should 23 call to the Court's attention. 24 THE COURT: All right. Go ahead. 25 MR. MUMMA: And I would request that we be 5 • 1 allowed to file briefs on this issue after this hearing. 2 THE COURT: Well, let's first hear the 3 evidence and then see where we are. 4 MR. MUMMA: And I also would like to make a 5 statement that I am not in any way waiving the 6 attorney-client privilege and my rights under that 7 privilege. Mr. Green and Mr. Faller's law firm have 8 represented the estate. Mr. Green's law firm, Morgan, Lewis 9 & Bockius, represented me in estate matters in the period of 10 1987 -- '86 through 1988. 11 THE COURT: Well, I'll tell you what, if you 12 feel some question implicates the attorney-client privilege, 13 I will deal with an objection at that time, but you may -- 14 by asking questions, you may be waiving it. I am not making 15 any ruling on that at this point. 16 MR. MUMMA: Well, the ruling I would seek to 17 get is that they should not be allowed to participate in 18 representing the estate in this -- in any of the estate 19 matters. They represented me in the same issues. 20 THE COURT: All right. Well, the request 21 that they be prohibited from participating is refused. Go 22 ahead and call your first witness. 23 MR. MUMMA: Okay. I would call William 24 Martson. Oh, excuse me, Your Honor, I have three exhibits I 25 would like to offer to the Court. 6 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Well, you will have to introduce those through a witness, unless everybody is willing to stipulate that they should simply be admitted. MR. GREEN: Your Honor, we object to the calling of Mr. Martson for several reasons. The first is there is a subpoena to which Mr. Martson is appearing -- pursuant to which he is appearing. It calls for production of two documents or two categories of documents which suggest to us what the intended scope of examination may be. THE COURT: Are you asking for an offer of proof ? MR. GREEN: I am, Your Honor. THE COURT: All right. What is your offer of proof as to what Mr. Martson will say? MR. MUMMA: Mr. Martson will testify, I believe, that Morgan, Lewis & Bockius independently hired him to file documents in this courthouse perpetrating that he is representing me, and it was my intention to file those documents which -- THE should be recused MR. and Mr. Martson -- those law firms. THE COURT: Erom the MUMMA: you hav COURT: How does this relate to whether I case? Because Morgan, Lewis & Bockius a relationship with both of Well, you can bring that out 7 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 through testimony if you want. If that is your offer of proof, that Mr. Martson will say that I worked for his firm at one time in my career, that is certainly permissible. So you may call him for that. MR. MUMMA: Mr. Martson, please. MR. GREEN: Your Honor, we would for that purpose certainly stipulate to the facts in that respect as stated in the petition. I mean I see no need to call Mr. Martson simply to testify as to facts which presumably are within the knowledge of Your Honor as well. THE COURT: Well, I know them, but the appellate courts don't know them. MR. GREEN: I understand. THE COURT: It has to get on the record some way. Whereupon, WILLIAM F. MARTSON having been duly sworn, testified as follows: DIRECT EXAMINATION BY MR. MUMMA: Q Mr. Martson, would you please state your full name and address? A William Frederick Martson, 154 West High Street, Carlisle, Pennsylvania. Q And are you appearing today pursuant to a 8 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 • subpoena? A 4 with you? • Yes. Did the subpoena ask you to bring any records A Yes. Q Do you have thos e records with you? A Yes, I do. MR. MUMMA: Your Honor, may I approach and look at these recor ds? THE COURT: What records are we talking about? Mr. Mumma, what did you subpoena? MR. MUMMA: Reco rds that we subpoenaed. THE COURT: But what are they? MR. MUMMA: The records referring to employment at the l aw firm and your relationship with Mr. Martson. THE WITNESS: Oh, you're asking for that? The employment of -- MR. MUMMA: The records that were responsive to the subpoena. THE WITNESS: Well, the subpoena called for two sets of records, the filing of disclaimer and the employment and other relationships of Judge Oler. Which one are you asking about? BY MR. MUMMA: 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Both. A As to the second one, there are no records. As to the first one, I have records here. Q But you have no employment records? A No. Q Was Judge Oler employed by your firm? A Yes. Q Or a firm that you were associated with? A He was employed, yes. Q When did you begin practicing law? A 1949, December 13th. Q Are you still practicing law? A I still have my license, but I am basically retired. Q Are you a senior partner? A I'm not a partner of the firm. Q Are you of counsel to the firm? A I am not of counsel. Q What is your relationship to the firm? A I have a n office, my name is on the letterhead, but I have not actively prac ticed for 12 years. Q What are the names of the law firms with which you have been ass ociated since you began practicing? A You mean my career? Q Yes. 10 • 1 A Well, I practiced under my own name, and I 2 practiced under the name of Martson and Snelbaker, and then 3 it became Marts on, Deardorf, Williams and Otto, and now it's 4 Martson Law Offices. 5 Q Martson and Snelbaker, do you know the dates 6 that you practi ced as Martson and Snelbaker? 7 A I really don't. I would be guessing. 8 Q Well, take a guess. 9 A You want me to guess? 10 Q You must have some idea of what period of 11 time that was. 12 A The only way I could affix a date is when I 13 moved to 10 Eas t High Street, which was 1972, and we were 14 partners at tha t time. 15 Q And do you know when that partnership ceased 16 and you joined Deardorf? 17 A I don't know. I don't know. 18 Q Would it have been in the 1980s? 19 A What's that? 20 Q The 1980's? Would it have been in the 21 1980's? 22 A I just don't know. I mean you are asking me 23 to guess, and I don't know precisely. 24 Q But can you not be within a year -- can you 25 just say what - - whether it was in the 70's or the 80's or 11 • 1 the 90's? 2 A You mean when Snelbaker -- Martson and 3 Snelbaker broke up? 4 Q Yes. 5 A I would say it was in the -- sometime in the 6 70's. 7 Q Okay. And then you started immediately with 8 the Deardorf -- 9 A No, I can't say that. I can't say that the 10 firm started at that point. I think at one point there was 11 William F. Mart son, P.C. I can't tell you when those dates 12 were. 13 Q Can you explain why you have no employment 14 records for the firm? 15 MR. GREEN: Objection to the question, 16 argumentative, Your Honor. 17 THE COURT: Mr. Mumma, do you have a response 18 to the objectio n? 19 MR. MUMMA: I will rephrase the question. 20 THE COURT: All right. 21 BY MR. MUMMA: 22 Q Does your law firm keep employment records? 23 A They do. Records are kept, but this was -- I 24 mean you are as king 30 years ago -- over 30 years ago, and 25 we don't keep r ecords for 30 years. 12 • 1 Q Do you keep case files for 30 years? 2 A I would think so. 3 Q Did you research to see if there were any 4 case files th at you and Judge Oler worked on the same cases? 5 A I wasn't asked to do that. 6 Q Well, wouldn't that be a part of his 7 employment wi th your firm? 8 A Mr. Mumma, it said employment or other 9 relationship with Judge Oler. 10 Q Well, if you and Judge Oler worked together 11 on the same c ase, would you consider that a relationship? 12 A It may have been, sure. 13 Q Do you recall working on the same case with 14 Judge Oler? 15 MR. GREEN: Your Honor, I object to this. I 16 mean there is no relevance. Even if the answer to this 17 question were in the affirmative, there is no relevance 18 whatsoever to any issue. It doesn't meet any test or 19 standard for the relief that's being sought here. This 20 entire examin ation is irrelevant to any question before Your 21 Honor. 22 THE COURT: Mr. Mumma, do you have a response 23 to that? 24 MR. MUMMA: Well, I think it is relevant, 25 Your Honor. I'm trying to find out at what time your 13 • 1 relationship with Mr. Martson and his firm took place, what 2 kind of cases you worked on, and what your relationship was 3 with Mr. Martson. 4 THE COURT: Well, my recollection is, for 5 what it is worth, that it was about 1977 that I stopped 6 working for the Martson firm, and I opened my own office. 7 If we are going to get into every case that I worked on in 8 the 3 years that I was with that firm, I think we'll be here 9 all day. So I just don't think that is relevant. If you 10 can bring out evidence that I worked somehow on your 11 father's estate, which I don't see how I could have since 12 the estate was opened in 1986, certainly you can do that, 13 and if you want to ask Mr. Martson more particularly as to 14 what his recollection is as to when I left the firm to open 15 my own office, you certainly can do that, but as I say, I 16 think it was around 1977, possibly 1976, possibly 1978, that 17 I was working there last. 18 MR. MUMMA: Okay. 19 THE COURT: But you are certainly welcome to 20 ask the witness what his recollection is. 21 MR. MUMMA: Well, I did ask that. 22 THE COURT: Well, do you recall, 23 Mr. Martson, when my last -- how long I worked there and 24 when my last year was? 25 THE WITNESS: I would really estimate your 14 • 1 last year to be the later part of the 70's. That's as close 2 as I can say. We have absolutely no employment records. 3 BY MR. MUMMA: 4 Q When did you first provide any services in 5 the estate of R obert -- to the estate of Robert M. Mumma? 6 A I would have to look at the exhibit that you 7 subpoenaed. 8 THE COURT: Mr. Mumma, do we have a date of 9 death for your father? 10 MR. MUMMA: Yeah, April 12th, 1986. 11 THE COURT: All right. 12 MR. MUMMA: Twenty-two years ago. 13 THE COURT: Yes. So certainly it was 14 sometime after that that the Martson firm would be involved 15 in the estate, I would assume, or are you contending 16 otherwise? 17 MR. MUMMA: I haven't even seen the records 18 that they have provided -- that were subpoenaed. I would 19 like to look at those. 20 THE COURT: All right. These relate to when 21 the Martson fir m became involved in the estate? 22 MR. MUMMA: And how they became involved, and 23 who they were w orking for. 24 THE COURT: Well, it seems to me this hearing 25 is on whether I should be recused, and I don't want to turn 15 • 1 it into a discovery hearing for the entire rest of the case. 2 MR. MUMMA: It's not for the purpose of 3 discovery, it's for the purpose of showing the Court that 4 these two law firms represented -- represented to this 5 courthouse that they were representing my interests in this 6 estate, and they should not be allowed to proceed here. 7 THE COURT: Well, you are turning this into a 8 motion to recuse or to try to get the attorneys out of the 9 case. This hearing is just on whether I should be recused, 10 and I don't think that that has any relevance to whether I 11 should be recused. 12 MR. MUMMA: It does if they shouldn't be 13 here. I mean I shouldn't be put in a position where 14 attorneys that I hired and paid that gave me advice, and now 15 come and turn that advice around and try and get me thrown 16 out of this estate, and every hearing I go to they stand up, 17 and they keep trying to push me out the door, and this is 18 not right. They were my attorneys. I mean there's no 19 question about it. Somewhere -- 20 THE COURT: Well, I wasn't your attorney, and 21 I wasn't with them at the time the estate was opened. It 22 seems to me the issue is -- you are turning the case into a 23 different issue for the hearing. 24 MR. MUMMA: No. I want to develop that 25 issue, that I don't think that Mr. Green has any right 16 • 1 whatsoever to stand up and object to anything that I do with 2 regards to this estate. 3 THE COURT: Well, I have ruled on that 4 request earlier. Mr. Jacobs, do you have a position on this 5 objection? 6 MR. JACOBS: No position, Your Honor. 7 THE COURT: All right. I will sustain the 8 objection. I would like to keep the hearing confined to 9 whether I should be recused from the case. 10 MR. MUMMA: Well, can I look at the 11 documents? 12 THE COURT: You can look at the documents to 13 the extent that they show when the Martson firm first became 14 involved in the case. 15 MR. MUMMA: I don't know what they show 16 because I haven't been able to see them. 17 MR. GREEN: Your Honor, for the record, we 18 have no objection to Mr. Mumma seeing the documents for the 19 reasons that the Court has stated. We believe that any 20 examination once the -- assuming the records are of the time 21 period that Your Honor's postulated, i.e., post-death of 22 Mr. Mumma, Sr., we would have an objection to any 23 examination about the records -- about the work that the 24 Martson firm performed after that date and so forth, but we 25 have no objection to Mr. Mumma seeing the records. 17 • 1 THE COURT: And, Mr. Jacobs, what is your 2 position? 3 MR. JACOBS: I have no position, Your Honor. 4 THE COURT: All right. We'll take a short 5 recess and let Mr. Mumma and Mr. Martson look at those 6 documents. 7 (A recess was taken at 10:11 a.m.) 8 AFTER RECESS 9 (Court resumed at 10:20 a.m.) 10 THE COURT: Please be seated. We will let 11 the record indicate that the Court has reconvened in the 12 Estate of Robert M. Mumma. We will also let the record 13 indicate that Taylor P. Andrews, Esquire, Auditor in the 14 case, has appeared as well. Mr. Mumma. 15 MR. MUMMA: Yes, Your Honor. Your Honor, I 16 reviewed these documents, and, again, I don't want to waive 17 my attorney-client privilege, but I would like to just have 18 Mr. Martson identify what the documents are, just what they 19 are, for the Court so that we can make a record that he is 20 an integral part of what went on here. 21 THE COURT: Well, is he an integral part of 22 whether I should recuse myself? 23 MR. MUMMA: It is. 24 THE COURT: Why? 25 MR. MUMMA: Because of the cannon of ethics, 18 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 number 3, I believe it is. THE COURT: Which MR. MUMMA: Which understand it, if Mr. Martson is this case, and he was a former 1. should not hear it. THE COURT: Well, far as I know. MR. MUMMA: He's going to be eventually. THE COURT: When that occurs then I will worry about it at that time, but I am not going to anticipate who the witnesses are going to be in the case. MR. MUMMA: He's a witness here today. THE COURT: Well, that's because you have called him. That's the only reason he is a witness here today. I am interested in why I should be recused from the case and in what you have discovered since the last motion to recuse, and so far what you have discovered, as far as I can tell, is that in the 1970s I worked for Mr. Martson. That to me is not a basis for a recusal. MR. MUMMA: Mr. Martson is going to be a witness in this case. He is a witness in this case today. He didn't bring the employment records because he didn't have them. So we don't know what the dates are, but he is clearly a witness today, and clearly will be a witness in says what? basically says, as I going to be a witness in ~w partner of yours, you he is not a witness yet, as 19 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 this case. THE COURT: Well, I am not going to let you turn this hearing into something it's not. The hearing today is on whether Mr. Andrews should be -- his appointment should be vacated, and whether I should be recused from the case, and that is the issue. MR. MUMMA: Well, I would like to make a record by having him identify these documents so that I can show the importance of his testimony in this case. THE COURT: Okay. MR. GREEN: Your Honor, I would object. I mean this is exactly where we were going to end up when Mr. Mumma put Mr. Martson on the stand. Now he's called a witness to the stand and says now that he's here you can't hear his testimony and you must recuse yourself. We believe that that is absolutely improper, and certainly given the list -- or the limits of the testimony up to this point, there is certainly no basis in our view for the Court to recuse itself. THE COURT: Mr. Jacobs, what is your position? MR. MUMMA: Your Honor, I would like to continue my objection to Mr. Green participating in this. THE COURT: Again, you are trying to turn this hearing into something it is not. The hearing is on 20 • 1 whether I should be recused and whether Mr. Andrews' 2 appointment should be vacated, not whether the attorneys in 3 the case should be disqualified. 4 MR. MUMMA: There's a privilege that protects 5 me from this very thing that is happening right here, right 6 now. It is supposed to protect my interest when I hire an 7 attorney to give me advice. They advise me to do certain 8 things, and they do that for me, and then they turn it 9 around. It may be 20 years later, but they're turning it 10 around to use the very work that they did and advised me on 11 against me. It's ridiculous. It shouldn't be permitted. 12 THE COURT: Mr. Jacobs. 13 MR. JACOBS: No position, Your Honor. 14 THE COURT: All right. Why don't you make an 15 offer of proof, Mr. Mumma, as to what you think Mr. Martson 16 will say about this exhibit? 17 MR. MUMMA: I would like to show him these. 18 THE COURT: I understand, Mr. Mumma. 19 MR. MUMMA: To show that he had a hands-on 20 knowledge, was a participant in this scheme, period. 21 THE COURT: Okay. The objection is 22 sustained. 23 MR. MUMMA: I'm not allowed to have him 24 identify the documents that he brought? 25 THE COURT: No. No, the hearing is on 21 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 whether I should be recused. That is the issue in the hearing, and whether Andrews' appointment should be vacated. You are trying to turn the hearing into something else. You're trying to turn it into a discovery proceeding, and I'm not going to allow it. This is the reason that this estate has gone on for so many years. MR. MUMMA: That's not the reason the estate has gone on for so many years. We have filed four motions to get them to file a final accounting. It took until 2004 for them to file one. That's not my fault. THE COURT: All right. Go ahead with your presentation. MR. MUMMA: I just wanted to make the record very clear that it's nothing that I have done that has delayed this. It has been until -- Judge Hoffer ordered them to file the final accounting in 2004. That was the first time that they were told to do it. THE COURT: All right. Go ahead with your presentation on today's issues. MR. MUMMA: See, Your Honor, I don't want to put these documents into the record because that will violate the attorney-client privilege, but for him to identify them, that's all I want him to do, just to say what they are and agree that he could testify about these. THE COURT: You have made an offer of proof, 22 • 1 and I have sustained the objection. What is your next 2 question? 3 BY MR. MUMMA: 4 Q Mr. Martson, have you given an affidavit in 5 response to discovery requests? 6 A Did I give an affidavit? 7 Q Yes. 8 A I don't know whether it was in response to a 9 discovery request, but I did give an affidavit on April 10 13th, 2004. I think you have a copy of it. 11 Q Well, who requested it? 12 MR. GREEN: Your Honor, I object. I would 13 ask for an offer of proof. 14 MR. MUMMA: My continuing -- my continuing 15 objection to Mr. Green's participation. 16 THE COURT: And what is your offer of proof 17 as to what this line of questioning will show? 18 MR. MUMMA: To show that he is part of this 19 case. 20 THE COURT: But how does that relate to 21 whether I should recuse myself or whether Mr. Andrews' 22 appointment should be vacated? 23 MR. MUMMA: Because he's already given 24 testimony that we intend to use in this case. He's already 25 provided it. 23 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: And you are saying because I once worked for his firm, that the fact that he gave an affidavit would require me to recuse myself? MR. MUMMA: Cannon 3.(c)(1)(b) is the one I'm specifically referring to, Your Honor. THE COURT: Which says what? MR. MUMMA: No, I don't have it right -- THE COURT: Mr. Jacobs, what is your position on all of this? MR. JACOBS: We take no position on this, Your Honor. THE COURT: Okay. You may ask him whether he gave an affidavit and what it said. I'll let you do that. BY MR. MUMMA: Q Did you give an affidavit? A Yes. I already said that, didn't I? Q Okay. Can you go through the history of why you gave an affidavit? MR. GREEN: Your Honor, I would object. The breadth of that question certainly could implicate privilege or a number of things. I think the question is vague and overbroad. THE COURT: Okay. Mr. Jacobs. MR. JACOBS: No position, Your Honor. THE COURT: All right. The objection is 24 1 sustained. 2 BY MR. MUMMA: 3 Q What was the affidavit regarding? 4 A Do you want me to read it? 5 Q No -- sure. Read it. 6 THE COURT: How long is this? 7 THE WITNESS: It's just a short paragraph. 8 THE COURT: All right. Go ahead. 9 THE WITNESS: I, William F. Martson, residing 10 at 4441 Gardner Drive, Port Charlotte, Florida, 33952-9758, 11 being duly sworn, deposes and says that he, at the direction 12 of Arthur L. Klein, Esquire, filed a document entitled 13 "Disclaimer by Robert M. Mumma, II", a copy of which is 14 attached hereto as Exhibit A, in the Cumberland County, 15 Pennsylvania, Office of the Register of Wills, signed by me, 16 and sworn to the 13th day of April, 2004. 17 BY MR. MUMMA: 18 Q Now, were you -- was there an attempt made to 19 take your deposition? 20 MR. GREEN: Your Honor, I object. This has 21 no relevance to the issues before the Court on the two 22 motions pending today. 23 THE COURT: Mr. Mumma. 24 MR. MUMMA: I think he's already testified 25 about the issue here, Your Honor, and he is going to 25 • 1 continue to be a material witness in this case. He is one 2 right now today. 3 MR. GREEN: Your Honor -- 4 THE COURT: Well, he is a witness today 5 because you called him as a witness not because somebody 6 else is calling him as a witness. Is your offer of proof 7 going to be that somebody else attempted to depose him or 8 that you attempted to depose him? 9 MR. MUMMA: I attempted to depose him. 10 THE COURT: You attempted. Well, you can ask 11 him, was there any attempt to depose you? 12 BY MR. MUMMA: 13 Q Was there an attempt to depose you? 14 A All I know is I was told by a member of the 15 firm that you wanted my deposition. 16 Q Okay. And whose idea was it to submit an 17 affidavit instead of a deposition? 18 A Oh, I don't know. I don't know if it was 19 mine or somebody in my firm or whether you asked for it. I 20 don't know. 21 Q Do you know what the purpose of having an 22 affidavit was? 23 A I would assume to avoid my having to come 24 back to Pennsylvania to be deposed. 25 Q Do you know why we were requesting the 26 • 1 affidavit? 2 A No, I don't know that. 3 Q Well, it would be useful as a court document, 4 wouldn't it? 5 A That's not a question. 6 Q Well, let me ask you this. Are you aware 7 that the negotiations with your firm were that you would 8 provide an affidavit that we could use in court in lieu of 9 your deposition? 10 A No, I am not aware of that. 11 Q They never explained that to you? 12 MR. GREEN: Your Honor, I object, again, to 13 the relevance. I would also note, Your Honor, that the 14 matters which are the subject of the text -- the context of 15 the affidavit are matters which are the subjects of motions 16 that have been filed by Mr. Mumma, that have been filed by 17 Ms. Mumma and Ms. Morgan, and which have been referred to 18 Mr. Andrews for consideration and disposition as a part of 19 these proceedings. As a result, there is absolutely no 20 reason that I can discern for in essence discovery to occur 21 at this point relating to matters that are not pending 22 before the Court or the subject of any motion that the Court 23 has not referred to Mr. Andrews. 24 THE COURT: Okay. Mr. Mumma, what is the 25 date of this affidavit? 27 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 • Honor. 2D04. • MR. MUMMA: I don't have it with me, Your MR. GREEN: I believe, Your Honor, he said THE WITNESS: 2004, April 13th. THE COURT: And, Mr. Mumma, it relates to events occurring when? MR. MUMMA: That they contend -- that Mr. Martson -- January 12th, I believe, 1987. THE COURT: All right. I think you made your point that he may become a witness in the case. MR. MUMMA: He is a witness in the case. THE COURT: Well, you called him today, and you have made the point that he submitted an affidavit relating to events occurring in the 1980's apparently, and I think that is as far as you can go with that. What's your next question? BY MR. MUMMA: Q Mr. Martson, what has been your relationship with Morgan, Lewis & Bockius in this case? MR. GREEN: Your Honor, I object to the relevancy of this as well. THE COURT: What is your offer of proof as to what he is going to say on that point and why it would be relevant? 28 • 1 MR. MUMMA: I am trying to find out who he 2 thinks he was worki ng for, me or Morgan, Lewis when he filed 3 this document. 4 THE COURT: And how does this relate to 5 whether I should recuse myself or whether Mr. Andrews' 6 appointment should be vacated? 7 MR. MUMMA: Because I don't believe Morgan, 8 Lewis belongs here, and I don't believe he belongs here. 9 That Morgan, Lewis belongs here in this case right now 10 arguing any of this. 11 THE COURT: Okay. The objection is sus -- 12 well, Mr. Jacobs, do you have any position? 13 MR. JACOBS: No position, Your Honor. 14 THE COURT: All right. The objection is 15 sustained. 16 MR. MUMMA: That's all I have, Your Honor. 17 THE COURT: All right. Mr. Green. 18 MR. GREEN: Your Honor, I have just a few 19 questions. 20 CROSS EXAMINATION 21 BY MR. GREEN: 22 Q Mr. Manson, do you have any recollection, 23 sir, that the firm of Manson and Snelbaker ever performed 24 any work for Robert M. Mumma? 25 A Not to my recollection. 29 • 1 Q And certainly since that firm ceased to exist 2 before the date of his death, you have no recollection that 3 the firm ever performed any work on behalf of the estate of 4 Robert M. Mumma? 5 A That's correct. 6 MR. GREEN: Thank you, sir. 7 THE COURT: Mr. Jacobs. 8 MR. JACOBS: No questions. 9 THE COURT: And, Linda Mumma, did you have 10 any questions? 11 LINDA MUMMA: I would like to ask how 12 Mr. Martson became involved in the estate because I had no 13 idea until a few years ago -- nobody ever explained to me 14 why Mr. Martson's law firm is now representing the estate 15 when I thought Morgan, Lewis represented the estate. 16 THE COURT: Do you think that would have 17 something to do with whether I should recuse myself? 18 LINDA MUMMA: I do, Your Honor. 19 THE COURT: Why? 20 LINDA MUMMA: Because I believe that it was 21 Morgan, Lewis's responsibility in the very beginning when 22 they represented the estate and me as a beneficiary, that if 23 they, as lawyers, would have known that your family 24 apparently -- this is my understanding -- that they had 25 estate issues, and that you had worked for Martson, that for 30 • 1 our interests -- so we would not even be in this court 2 having these questions, we would have asked you to step down 3 and have another judge that had no involvement with any of 4 the firms available. 5 THE COURT: All right. Well, again, I think 6 the issue of the fact that the gentleman from Morgan, Lewis 7 & Bockius wrote my mother's will, that issue has already 8 been looked at. The issue here today is whether somehow my 9 relationship with the Martson firm in the 1970's would 10 preclude me from being fair and impartial, and I just don't 11 think this question that you want to ask has anything to do 12 with that. So I'll sustain -- I will not let you ask that. 13 Okay. You may step down. Thank you. 14 MR. MUMMA: Excuse me, Your Honor. Can I 15 follow-up with -- 16 THE COURT: Certainly, go ahead. 17 REDIRECT EXAMINATION 18 BY MR. MUMMA: 19 Q Did you ever do any work for the Dauphin 20 Deposit Bank? 21 MR. GREEN: Objection, Your Honor. I ask for 22 a show of proof as to relevance. 23 THE COURT: Okay. Mr. Mumma. 24 MR. MUMMA: They were executor for this 25 estate. They have a vested interest in this. 31 • 1 THE COURT: And how does this relate to the 2 issue of whether I should recuse myself or Mr. Andrews' 3 appointment should be vacated? 4 MR. MUMMA: I am just asking him a follow-up 5 question of what Mr. Green asked. 6 THE COURT: Okay. Mr. Green. 7 MR. GREEN: I'm not sure that I understood 8 what the offer was. 9 THE COURT: Okay. What do you expect him to 10 say, and why would it be relevant to what Mr. Green asked? 11 MR. MUMMA: Mr. Green asked him if he had 12 ever done any work for the estate. 13 THE COURT: That's right. 14 MR. MUMMA: I am asking whether he's ever 15 done any work for a potential executor of the estate or any 16 of the executors of the estate. 17 THE COURT: A potential executor for the 18 estate. 19 MR. GREEN: Your Honor, Dauphin Deposit never 20 acted as an executo r or any sort of fiduciary in the estate 21 of Robert M. Mumma. 22 THE COURT: Do you have some proof that it 23 has, Mr. Mumma? 24 MR. MUMMA: Well, Dauphin Deposit Bank was a 25 creditor, and I sus pect that the majority of the funds that 32 • 1 have been distributed from the estate went back into Dauphin 2 Deposit Bank, and they are listed right in the will as a 3 replacement executor. 4 THE COURT: Okay. Mr. Jacobs. 5 MR. JACOBS: No position, Your Honor. 6 THE COURT: All right. I will sustain the 7 objection. Anything furth er, Mr. Mumma? 8 MR. MUMMA: No, Your Honor. 9 THE COURT: Mr. Jacobs, any questions? 10 MR. JACOBS: No, Your Honor. 11 THE COURT: Okay. Mr. Green, anything 12 further? 13 MR. GREEN: No, Your Honor. 14 THE COURT: Okay. You may step down. Thank 15 you. May this witness be excused? May he be excused? 16 MR. GREEN: Yes, Your Honor. 17 THE COURT: Mr. Mumma, do you have any 18 objection to his being exc used? 19 MR. MUMMA: Not at this time, Your Honor. 20 MR. JACOBS: No objection. 21 THE COURT: All right. You may stay or leave 22 as you choose. Thank you. Mr. Mumma. 23 MR. MUMMA: We would like to call Taylor 24 Andrews to the stand. 25 THE COURT: Now are we getting into the next 33 • 1 petition or motion? 2 MR. MUMMA: No. 3 THE COURT: Still the old motion. Okay. 4 Whereupon, 5 TAYLOR P. ANDREWS 6 having been duly sworn, testified as follows: 7 DIRECT EXAMINATION 8 BY MR. MUMMA: 9 Q Please state your name and address for the 10 record. 11 A Taylor P. Andrews. My professional address 12 is 78 West Pomfret Street, Carlisle, Pennsylvania. 13 Q What is your occupation? 14 A I am an attorney. 15 Q Where do you practice? 16 A I practice at 78 West Pomfret Street, 17 Carlisle, Pennsylvania, where I have a general practice for 18 the private practice of law, and I also practice in the 19 courthouse here as the Chief Public Defender for Cumberland 20 County. 21 Q And how long have you practiced in the 22 courthouse? 23 A As Public Defender? 24 Q In any relationship in the courthouse. 25 A I came to Cumberland County to start to 34 • 1 become involved in the practice of law in 1974, and I have 2 been involved with matters that bring me to the courthouse 3 since that time. 4 Q Well, would you please define then what your 5 definition of in the courthouse was when you said you were a 6 Public Defender? 7 MR. GREEN: Your Honor, I would object to the 8 relevance of this as well and ask for an offer of proof as 9 to what this relates to. 10 THE COURT: Mr. Mumma. 11 MR. MUMMA: My understanding, Your Honor, is 12 Your Honor practiced in the Public Defender's office. 13 THE COURT: Okay. And how does that show 14 whether I should recuse myself or whether Mr. Andrews should 15 be -- whether his appointment should be vacated? 16 MR. MUMMA: I want to determine what the 17 relationship is. 18 THE COURT: You can ask -- what is the 19 question going to be? 20 MR. MUMMA: Well, my question right now is 21 I'm trying to set a time frame. 22 THE COURT: Okay. Go ahead. 23 BY MR. MUMMA: 24 Q How long have you worked as a Public Defender 25 in the courthouse? 35 • 1 A I became First Assistant Public Defender in 2 January 1976. I became Chief Public Defender in October of 3 1976, and I ha ve continued in that position until the 4 present time. 5 Q Did you have occasion to practice as a Public 6 Defender with Judge Oler? 7 A It was my pleasure to have Judge Oler as one 8 of my assistan ts I believe for 9 years. 9 Q Nine years? 10 A Yes. 11 Q Do you know when those 9 years were? 12 A It would be a rough estimate at this point. 13 I think it was roughly '79 to '88 or thereabouts. I may be 14 off on a year or two on either end. 15 Q And as part of that relationship between you 16 and Judge Oler , what were your duties with regard to Judge 17 Oler? Were yo u a supervisor? 18 A Well, technically I guess I was a supervisor, 19 but there wasn 't a whole lot of actual supervision going on. 20 I did assignments, and we were colleagues. 21 Q When you did assignments, did you determine 22 what the renumeration would be for those assignments? 23 A No. 24 Q It was set by a set schedule or -- 25 A Well, the County Commissioners would 36 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 determine what the salaries were for the individuals in the office. Q Okay. What are the names of the law firms that you have been associated with? A I started my practice as an Assistant Public Defender in Philadelphia with the Defenders Association of Philadelphia for 2 years. I then came to Cumberland County and was an associate and then a partner of John H. Broujos, a practitioner here in Cumberland County, and that was in 1974 until 1978. In 1978 I went into practice for myself. I shared space with Bob Saidis and Ed Guido for about 9 years. In 1987 I formed a partnership that I still have with my partner Ronald Johnson in Andrews and Johnson Law Office. Q And how many hours a week do you devote to your duties as the Public Defender? MR. GREEN: Your Honor, I object, and again, ask for an offer of proof as to the relevance of Mr. Andrews' current employment or how he conducts his professional employment. THE COURT: Okay. Mr. Mumma. MR. MUMMA: Well, Your Honor, I would like to determine whether or not Mr. Andrews was qualified for this appointment. THE COURT: Well, I thought we were going to 37 • 1 keep these two issues separate. If you want to include as 2 part of his testimony your motion to vacate his appointment, 3 that is permissible, as long as we understand that is the 4 issue you are getting into. 5 MR. MUMMA: No, the issue -- where I am 6 headed with this, depending what the answers are, of course, 7 but what I want to make sure is that -- that it was a proper 8 appointment. 9 THE COURT: So we are getting into the issue 10 of whether his appointment should be vacated? 11 MR. MUMMA: No. 12 THE COURT: No. 13 MR. MUMMA: Whether or not he should have 14 been appointed in the first place. 15 THE COURT: Go ahead. Ask the question. 16 BY MR. MUMMA: 17 Q How many hours a week do you formally go the 18 Public Defender's? 19 A It varies widely from time to time. In some 20 periods of time it may have been 15 to 20 hours, and in 21 other periods of time it may be 35 hours. So I can't give 22 you a specific time that applies at all times. 23 Q How many hours a week do you spend on your 24 private practice? 25 MR. GREEN: Your Honor, again, I would 38 • 1 object. Mr. Andrews is a judicially-appointed officer with 2 respect to these proceedings. I don't really believe it is 3 proper for a party to cross-examine a judicially-appointed 4 officer any more than it would be for the party to 5 cross-examine the judge who was supervising the proceedings. 6 I mean whatever record needs to be made or Mr. Mumma seeks 7 to make with respect to any of these issues, it seems to me 8 has to come from someplace other than the mouth of 9 Mr. Andrews, who is not really properly here as a witness, 10 as we view it. 11 So I would object to this kind of 12 examination, which looks to me to be a problem with 13 Mr. Andrews resume, which is appropriate for the Court to 14 undertake, and perhaps for the parties to brief, but not to 15 bring him before Your Honor and try to cross-examine him to 16 show that he is not up to the appointment that Your Honor 17 has determined he should serve. 18 MR. MUMMA: Your Honor, I would like to renew 19 my objection to Mr. Green's participation in this matter. 20 THE COURT: That objection is overruled. 21 What is your response to what he says? This doesn't really 22 relate to whether I should be recused. 23 MR. MUMMA: Well, I believe it does 24 because -- 25 THE COURT: Well, I understand you believe it 39 • 1 does, but why? 2 MR. MUMMA: Because the cannon of ethics says 3 that a judge is supposed to practice with fidelity. 4 THE COURT: Right. 5 MR. MUMMA: Here we have an appointment of 6 what I believe we can show -- Mr. Andrews may be a fine 7 person, a fine lawyer, but I don't believe he has experience 8 or time or the expertise to be an auditor for a major case 9 like this. I don't think he's audited many other cases in 10 Cumberland County, other estates, and I believe that the 11 appointment represents -- 12 THE COURT: Represents what? 13 MR. MUMMA: A matter -- well, I think it was 14 an improper appointment. He doesn't have the credentials 15 for it. It was done because of the collegial effect -- 16 relationship. 17 THE COURT: Well, you're starting to get into 18 the hours that he works, and I don't think that is relevant. 19 If you want to develop some improper relationship that I 20 have with Mr. Andrews, you are certainly welcome to ask that 21 question, but you are going far field of the issue of 22 whether I should be recused when you get into what hours he 23 works and on what he works. 24 MR. MUMMA: If he doesn't have the time to do 25 it -- he knows he doesn't have the time to do it. Fidelity 40 • 1 means that he should have said that, and the Court shouldn't 2 have appointed somebody -- the Court should not have allowed 3 this to go on this long. 4 THE COURT: All right. The objection is 5 sustained. Mr. Mumma. 6 BY MR. MUMMA: 7 Q Mr. Andrews, could you list for me the number 8 of estates that you have been appointed an auditor for? 9 MR. GREEN: Again, Your Honor -- 10 MR. MUMMA: Same objection, Your Honor. He 11 should not be allowed to participate in this. 12 THE COURT: All right. 13 MR. GREEN: I still object to cross 14 examination of a judicially-appointed official. I 15 understand he is not a member of the bench, but to be 16 cross-examined about his resume and qualifications -- I mean 17 if there is an argument to be made on that point, I still 18 believe it is improper for that argument to be made out of 19 the mouth of the individual who is then going to have to 20 turn, if Your Honor denies the relief requested, and preside 21 over these proceedings. I mean it just seems an impossible 22 situation and an improper one in terms of Mr. Andrews having 23 to defend his credibility against someone over whom he has 24 been charged with presiding. 25 THE COURT: Mr. Jacobs, do you have a 41 • 1 position? 2 MR. JACOBS: No position, Your Honor. 3 THE COURT: All right. Mr. Mumma, you can 4 ask this question, and that is about it along that line. 5 How many estates have you been appointed auditor for in your 6 career, if you know? 7 THE WITNESS: This is either the third or the 8 fourth, and it is the first one to actually go to a hearing, 9 and we've not yet gotten to a hearing, but it looks like 10 it's headed for a hearing. The others were resolved after a 11 conference by agreement or a negotiated settlement. 12 BY MR. MUMMA: 13 Q How many hours would you spend on the others, 14 on an average? 15 A Probably the largest one may have been, I'm 16 guessing -- I'm not guessing, but my best memory is 20 17 hours. 18 Q And the shortest one? 19 A Five hours. 20 Q Have you tried civil cases before? 21 MR. GREEN: Your Honor, the same objection. 22 I still see no relevance of this to the issues before the 23 Court, nor do I think this is an appropriate manner in which 24 to proceed. 25 THE COURT: Again, I don't think this has 42 1 anything to do with whether I should recuse myself. I will 2 sustain the objection. If you want to ask some of these 3 questions on the issue of whether his appointment should be 4 vacated, I will permit you to do that, but it has nothing to 5 do with whether I should recuse myself. 6 MR. MUMMA: Well, maybe I should get 7 something clear in my mind. Before you wanted to bifurcate 8 the two, as I understand it. 9 THE COURT: I thought we were because 10 Mr. Andrews wasn't here for the first part. Now you are 11 starting to ask questions that at best relate to whether his 12 appointment should be continued. 13 MR. MUMMA: No. Whether -- my questions are 14 directed to whether or not he was qualified for the 15 appointment in the first place, and whether or not he has 16 been monitored during that appointment. 17 THE COURT: All right. The objection is 18 sustained. 19 MR. MUMMA: As a judicial function. 20 THE COURT: What's your next question? 21 MR. MUMMA: My question was, if you are 22 treating this testimony now as relating to both, I need to 23 know that when I answer Mr. Green's objections. 24 THE COURT: All right. I asked you whether 25 you wanted to do that, and you said no, these all go to the 43 • 1 question of whether I should be recused. So that is how I 2 am treating it. These questions relate to whether I should 3 be recused. What's your next question? 4 BY MR. MUMMA: 5 Q How did you first become aware that you were 6 being considered as an auditor? 7 A I believe there may have been a phone call 8 from Judge Oler as to whether I was willing to accept an 9 auditorship without any reference to the case. 10 Q From the time of that phone call to the time 11 you got the notice that you were accepted or appointed 12 auditor for this case, do you recall what that timeframe 13 was? 14 A My best recollection is it would have been a 15 matter of a couple of days. 16 Q Are you aware how that whole procedure came 17 about? 18 A I am not sure exactly what you mean, how it 19 came about. There was a controversy that needed to be 20 referred to an Auditor. I understood the Judge was looking 21 to appoint me as an Auditor. I then obtained the paperwork. 22 I saw that i t was a substantial case with many controversies 23 but -- I may be misunderstanding your question, Mr. Mumma. 24 Q Well, are you aware there was a petition 25 filed by the estate requesting the appointment of an 44 • 1 auditor? 2 A At the time that I said I would receive an 3 auditorship, I was not aware of that. When I finally got 4 the paperwork, I was aware. I learned what brought about 5 the appointment of an auditor. 6 Q Are you aware that the petition was filed 7 within 24 hours of your appointment? 8 A No, but I don't know that that would surprise 9 me. 10 Q Did anyone else discuss this auditorship with 11 you prior to your appointment? 12 A No. 13 Q Has anyone ever discussed this estate matter 14 prior to your appointment? 15 A No. 16 Q Who is Charles A. Delone, D-e-1-o-n-e. 17 MR. GREEN: Your Honor, I object to the 18 relevance. This name means nothing to me other than it 19 sounds vaguely familiar from an earlier round of proceedings 20 on this very matter, and, in fact, going to -- dating back 21 to Mr. Mumma's initial challenge as to whether Mr. Andrews 22 should be appointed at all. Again, I don't know who the 23 individual is, but it seems irrelevant at this time. If 24 nothing else, for the reason that it's already been 25 presented to the Court, considered, and taken into account 45 • 1 presumably in the Court's rulings to date. 2 THE COURT: Mr. Mumma. 3 MR. MUMMA: Your Honor, I am -- well, I will 4 withdraw the question for right now. 5 THE COURT: Okay. Anything else of 6 Mr. Andrews? 7 BY MR. MUMMA: 8 Q Did you ever see the petition that was filed? 9 A I suspect I did. I have seen a lot of the 10 paperwork. If you have questions about a petition, it would 11 help to see it again. 12 MR. MUMMA: May I show this? 13 THE COURT: Certainly. 14 BY MR. MUMMA: 15 Q What does that petition ask for? 16 A The appointment of an auditor. 17 Q No. What does it specifically ask for? 18 A The prayer seeks a conference among counsel 19 and you with the Court to identify an appropriate individual 20 to act as auditor. That is the prayer of the petition. 21 THE COURT: Are you aware whether or not 22 there ever was such a conference? 23 MR. GREEN: Your Honor, again, I object. If 24 Mr. Mumma believes there was some impropriety in the manner 25 in which the auditor was appointed or in which this motion 46 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 was ruled on, that is a matter for raising in a motion with Your Honor through appeals, through some other vehicle, not through attempting to cross-examine Mr. Andrews at this late juncture. THE COURT: Okay. Mr. Jacobs, do you have a position? MR. THE offer of proof on MR. instead of getting on the appropriate Mr. Andrews. JACOBS: COURT: this? MUMMA: a confe person, No position, Your Honor. And, Mr. Mumma, what is your They filed a petition, and rence where everybody could agree the Court immediately appointed THE COURT: Okay. You can ask -- Mr. Andrews, are you aware of whether I held a conference before appointing you? THE WITNESS: I am not aware. THE COURT: One way or the other? THE WITNESS: That's right. BY MR. MUMMA: Q Were you asked to give a curriculum vitae or any kind of evidence that you were qualified for this auditorship? A No. Q Were you asked to give prior accountings? 47 • 1 You said you did four other accountings, I believe? 2 A Right. 3 Q Were you asked to submit any of those to the 4 Court for them to review or? 5 A No. Those weren't accounts. That is just 6 terminology. They were auditor appointments. 7 Q Okay. 8 A That's right. 9 Q You settled all of those? 10 A They all were resolved. 11 Q Resolved. 12 A Without a hearing. 13 Q Did you write any opinions or -- 14 A I don't believe I did. I wrote a report and 15 incorporated a settlement in one. 16 Q How are you being compensated as the auditor? 17 A My understanding is I will, at the end of the 18 process -- unless there is a determination otherwise -- be 19 compensated for time at the end of the proceedings. I have 20 not been compensated at all at this point in time, and the 21 compensation, as I understand it, comes from the parties. 22 Q The parties as individuals or? 23 A Well, I mean an estate may be a party. A 24 claimant may be a party, yes. 25 Q There's four beneficiaries? 48 • 1 THE COURT: How does this relate to whether I 2 should recuse myself? 3 MR. MUMMA: Well, he has an understanding 4 that the parties are going to be paying for his services, 5 and I'm not aware of any of that. 6 THE COURT: What in the world does that have 7 to do with whether I should be recused? 8 MR. MUMMA: Because I think it would be 9 inappropriate for you to -- for the Court to instruct 10 Mr. Andrews that he's being paid by the parties, and not 11 tell the parties about it. 12 THE COURT: I'm sorry, but I just don't see 13 the relevance to the issue. What is your next question? 14 BY MR. MUMMA: 15 Q Has Judge Oler called you on occasions to get 16 an update as to where things stand? 17 MR. GREEN: Your Honor, I object, although I 18 have to say I am not terribly familiar with how the process 19 works. It seems vis-a-vis anything I have ever encountered, 20 that it would be highly unusual for a witness to be -- or in 21 Mr. Andrews' position to be examined about his conversations 22 with the Court. I object. I don't know what it could 23 really go to, but -- 24 THE COURT: Mr. Mumma, what is your offer of 25 proof as to this answer? 49 • 1 MR. MUMMA: I am trying to find out whether 2 anybody is supervising Mr. Andrews. 3 THE COURT: And what -- go ahead. Ask the 4 question. 5 THE WITNESS: If I recall, your question to 6 me is whether Judge Oler has called me. 7 MR. MUMMA: Yes, regarding this matter. 8 THE WITNESS: I don't recall calls, but there 9 have been conversations, and he has made orders referring 10 matters to me. I have given messages to his secretary, and 11 I have on occasion stopped in and conferred with Judge Oler 12 and told him that I knew he had referred things to me, and I 13 would be working on a report. 14 BY MR. MUMMA: 15 Q When is the last time you had such a 16 conversation? 17 A My best estimate would be about a month ago. 18 Q And since January 6th, 2005, how many of 19 those conversations do you believe you had? 20 A Half a dozen. 21 Q Six? 22 A Thereabout. 23 Q Two and a half years, six conversations? 24 A Yes. 25 Q Do you understand that you would be appointed 50 • 1 to determine discovery issues in this case? 2 A Yes. 3 Q You have never been elected judge, correct? 4 A No. I tried, but it didn't happen. 5 Q I think I sent you contributions. 6 A I'l1 go back and check. 7 THE COURT: Don't. 8 BY MR. MUMMA: 9 Q Did you -- 10 THE COURT: Well, let me just make one thing 11 a little clearer. You were asked whether you were asked to 12 determine discovery issues. Were you asked to determine 13 them or make recommendations? 14 THE WITNESS: Well, I think my role was to 15 make recommendations. 16 THE COURT: I don't recall ever asking 17 Mr. Andrews to determine an issue. I just asked him -- I 18 referred the issues to him and asked him to make 19 recommendations on them based on where he thought the case 20 was. Do you feel otherwise, Mr. Mumma? 21 MR. MUMMA: Absolutely, Your Honor, because 22 there are issues that have been raised in front of 23 Mr. Andrews on discovery that have never been replied to. 24 THE COURT: Never been what? 25 MR. MUMMA: Replied to. Never been answered. 51 • 1 Never been resolved. 2 THE COURT: I thought your question was -- 3 oh, I see. Well, how does this relate to whether I should 4 be recused? 5 MR. MUMMA: Because I believe, Your Honor, 6 that the Court has allowed Mr. Andrews to take over the 7 discovery issues. The Court's never ruled on them. 8 THE COURT: All right. Go ahead. 9 BY MR. MUMMA: 10 Q Did you understand you would be authorized to 11 cancel a properly-noticed deposition? 12 A I thought that fell within my authority in 13 light of my responsibility for the discovery process, yes. 14 Q What process did you use to make that 15 decision? 16 A What process did I use? I don't know. 17 Q Did you look it up in a letter? Did you get 18 a letter from the Judge saying this is what your authority 19 is, you can cancel depositions or -- 20 A There had been an agreement as to what 21 discovery was going to take place when, outside of those 22 timeframes suddenly there was a deposition being noticed. 23 I was -- I received a letter indicating that it was objected 24 to and reasons for the objection, and I thought that the 25 matter needed to be decided before you just went forward and 52 • 1 did the depositions. 2 Q And you feel that you had been given the 3 authority to determine whether or not depositions could be 4 held? 5 A Yes. 6 Q Do you understand that it would be up to you 7 to weigh the credibility of witnesses or do you understand 8 that to be in the purview of the Orphans' Court Judge? 9 A Well, technically the witnesses appear before 10 me as the Auditor, so insofar as assessing credibility, and 11 if I am finding facts, that ends up being my determination. 12 The Court would be deciding legal issues based upon the 13 record that is made by me as the Auditor, and in that 14 context it is very difficult for the Court to assess 15 credibility. 16 Q Do you think it is important for the Court to 17 assess credibility? 18 A Well, I believe that is one of the things -- 19 that is one of the functions of the Auditor in making the 20 record and in making a report. 21 Q So you believe that the Auditor has the same 22 authority as the Judge? 23 A Not the same authority. I perform some of 24 the same functions on behalf of the Court. 25 Q Well, upon being appointed the Auditor in 53 • 1 this case, what was your understanding as to any 2 responsibilities for submitting an Auditor's report to the 3 Court? 4 A That was going to be the end product of my 5 work, would be a final report to the Court with recommended 6 adjudications, and because of the scope of this dispute that 7 there would be interim reports as well. 8 Q Do you recall filing a motion for an 9 extension to file one of those reports? 10 THE COURT: Mr. Mumma, I'm sorry, I just 11 don't understand how this has anything to do with whether I 12 should recuse myself. We are fast running out of time for 13 the hearing. We are scheduling late in the year now on 14 further hearings. What in the world does it have to do with 15 whether I should be recused? 16 MR. MUMMA: Because, Your Honor, this estate 17 has gone on since 1986, and I understand that if you can 18 only take 5 percent out a year it takes you 20 years to 19 steal it. I understand that. That is what their program 20 is. But my sisters and I, we believe that we're not getting 21 the proper treatment. We're not getting due process here. 22 Now, I'm not speaking for them, I'm speaking for myself. 23 And that Mr. Andrews is not -- as good of a lawyer as he is, 24 he's not -- this is not the realm of expertise that he has. 25 I don't believe he understands the nuance of corporate law, 54 • 1 which is what this is all about, and he has personal 2 interest through his uncle, and some of the evidence would 3 come out here. 4 THE COURT: All right. It seems to me you're 5 getting into whether his appointment should be vacated, not 6 whether I should recuse myself. 7 MR. MUMMA: No, it's all about you're 8 recusing yourself because I don't think this should be 9 allowed to go on this long by the Court. 10 THE COURT: Okay. You may ask 10 more 11 questions. So pick your 10 best questions, and then we are 12 going to move to the next part of the hearing after the 13 other side has presented their evidence. 14 BY MR. MUMMA: 15 Q Isn't it true that Rule 8.2 provides that the 16 Auditor's report shall be filed in 90 days as opposed to may 17 be or should be. 18 A I don't have that in front of me so I can't 19 respond to that. 20 Q Well, are you aware of a time -- of the time 21 restriction that you are under to file your report? 22 A Well, I know that normally in a small estate 23 with less controversy it may be done that quickly. In this 24 case, that was not the expectation. 25 Q What is your expectation? 55 • 1 A It will take longer. 2 Q How much longer? 3 A I don't know. 4 Q Are you aware of any other estates that have 5 gone on for 22 years? 6 A No. My knowledge in that area is limited, 7 but it does seem like a very long time. 8 Q Have you asked for any other -- well, have 9 you asked for any extension of time in the last 6 months? 10 A No. 11 Q In the last year? 12 A I don't think so. 13 Q In the last 18 months? 14 A That might be approaching the point when I 15 made my request for an extension at some point. There was a 16 motion I think I filed for an extension of my appointment 17 for filing a re port, but where that fell within this 18 18 months, I have no time frame on that, sir, but I think it 19 was only one. 20 Q Do you know how many outstanding requests 21 there are? How many requests are outstanding for you to 22 submit a brief report and a proposed order? 23 A As I sit here, I do not. I know I started a 24 scratch sheet t o lay that all out right around the 4th of 25 July. I have n ot added to it the subsequent filings and 56 • 1 subsequent references. My estimate is about eight or nine. 2 Q Eight or nine? 3 A I'm estimating from memory. 4 Q Do you know, those orders, are most of those 5 regarding issues that we have raised in our motions? 6 A I recall them going both ways. 7 Q Do you recall the Court's order of April 22nd 8 referring a request for an order that the estate has waived 9 its right to contest this claim filed or revoked -- and 10 revoked, excuse me, or alternatively a request for immediate 11 hearing regarding same to you for deposition -- or 12 disposition? 13 A I believe so. 14 THE COURT: Mr. Mumma, we are up to 10 15 questions. You may ask one more. 16 MR. MUMMA: Your Honor, this estate's been 17 going on for 22 years. 18 THE COURT: Well, it's going to go on for 19 another 22 years if we keep going at this rate. You have 20 one more question, and your objection is noted. 21 MR. MUMMA: May I finish my objection? It's 22 been going on for 22 years. A number of transactions 23 involved are enormous, the number of companies involved are 24 enormous, and we get no discovery anywhere. 25 THE COURT: What's your last question? 57 • 1 BY MR. MUMMA: 2 Q Mr. Andrews, when do you anticipate issuing 3 an order on the discovery issues that are before you? 4 THE COURT: It's not an order. He was asked 5 for recommendations, I believe. When do you anticipate 6 issuing recommendations? 7 THE WITNESS: That's frankly hard for me to 8 answer. As I looked at them -- I remember when I started 9 looking -- or when I prepared my spreadsheet, laying out 10 what had been referred to, and that is before new matters 11 have been referred to me, and I looked at the filings, and 12 it was my conclusion that these couldn't be decided just on 13 what had been filed, but that there may be a need to at 14 least get counsel together and find out what they had to say 15 to respond, aside from what have been filed, or even there 16 may be a need to make a record on some of these things. 17 THE COURT: Okay. Mr. Green. 18 MR. GREEN: On the issue of the recusal, Your 19 Honor, we have no questions for Mr. Andrews. 20 THE COURT: Mr. Jacobs. 21 MR. JACOBS: May I question him on the other 22 issue or are we limiting it to only -- 23 THE COURT: I think we are just limiting this 24 phase of the hearing to the recusal of me. 25 MR. JACOBS: No questions on that point. 58 • 1 THE COURT: Okay. Ms. Mumma, Linda Mumma. 2 CROSS EXAMINATION 3 BY MS. LINDA MUMMA: 4 Q Mr. Andrews, could you just tell me when you 5 were appointed by the Court? What year? 6 A I believe it was January of 2005. 7 Q Okay. And could you tell me how you knew 8 that you had this appointment? 9 THE COURT: How what? 10 MS. LINDA MUMMA: How he knew he had the 11 appointment. Did somebody call you? Did you receive a 12 letter? 13 THE WITNESS: I received a call asking if I 14 would take an auditorship. I said I would. And then I was 15 told I could pick up paperwork at the Register of Will's 16 office, and then there was a process of receiving 17 significant paperwork from the Register of Will's office. 18 BY MS. LINDA MUMMA: 19 Q So during that conversation, when you were 20 initially told about the appointment, did Judge Oler explain 21 to you why out of all of the attorneys available in the 22 Commonwealth he decided to chose you as representing this 23 estate? 24 A No . 25 Q He never explained? Did you ask him? 59 • 1 A No. 2 Q Did you ever wonder why? 3 A No. 4 Q Did you ever inform Judge Oler that you were 5 a relative of my father's very close and personal friend? 6 A That came out at a hearing very soon after I 7 was appointed. Mr. Mumma raised that issue. I think I was 8 sitting in this same chair and answered questions about 9 that. Soon after the appointment Mr. Mumma raised the 10 question about that, and I answered questions as a witness 11 about that. 12 Q Did you ever question that fact before 13 accepting the appointment? 14 A No. I didn't frankly see it as relevant. 15 Q Have you ever done any work for any of the 16 law firms involved or have personal relationships with any 17 of the law firms involved in these estate issues? 18 A Well, that's a multiple question. I have 19 never done work for any of the law firms that are involved. 20 I certainly know people in the local law firm, as members of 21 the bar the size of Cumberland County tend to know each 22 other. 23 Q Have you ever worked in a law firm with any 24 of the lawyers involved? 25 A No. 60 • 1 Q Okay. Do you believe -- personally believe 2 that Judge Oler should recuse himself? 3 A No. 4 Q Why? 5 A I haven't heard any reason why he should. 6 He's a fine judge. He's meticulous. He is very fair. So I 7 have no reason to -- 8 Q Do you feel that there is any conflict of 9 interest here? 10 A No. 11 Q No. So as a citizen of the Commonwealth of 12 Pennsylvania if you were looking at this case, not involved 13 in it, you would not see any conflict of interest? 14 A I would see none. 15 MS. LINDA MUMMA: Okay. That's all. 16 THE COURT: Anything further as a result of 17 those questions? I think you were asked, Mr. Andrews, a 18 question about your background, and you indicated you have 19 run for various offices. What offices did you run for and 20 when? 21 THE WITNESS: In 1979 I ran for District 22 Attorney of Cumberland County. In 1985 I ran for judge of 23 Cumberland County. In 1991 I ran against you, Your Honor, 24 for Judge of Cumberland County. In 19 -- in 2005, I believe 25 it was, I say I stood for election because I was not so 61 • 1 active as to be deemed to have run for the office of Judge 2 of Cumberland County. 3 THE COURT: All right. Now you have had a 4 general practice in Cumberland County for how long? 5 THE WITNESS: Since 1974. 6 THE COURT: And has that included estates? 7 THE WITNESS: It has. 8 THE COURT: Okay. Any other questions as a 9 result of those questions? If not, you may step down. May 10 this witness be excused? No, I guess we need you because 11 you will be involved in the second part of the hearing. So 12 you may step down. Thank you. Mr. Mumma, do you have any 13 further witnesses on the motion to recuse me? 14 MR. MUMMA: I call Linda Mumma. 15 Whereupon, 16 LINDA MUMMA 17 having been duly sworn, testified as follows: 18 DIRECT EXAMINATION 19 THE COURT: And, Mr. Mumma, what is your 20 offer of proof as to what this witness is going to say? 21 MR. MUMMA: Well, I am not sure what she is 22 going to say. What I'm going to ask her is her opinion 23 about her perception of what is going on. 24 THE COURT: Okay. Mr. Green, do you have any 25 objection to that? 62 • 1 MR. GREEN: Well, Your Honor, again as to 2 Ms. Mumma, I d on't know what Ms. Mumma's testimony will be. 3 It is somewhat difficult -- nor do I know what she'll be 4 asked, but in particular it's somewhat difficult to see what 5 the relevance of that could be. I mean typically 6 perceptions of the parties either would be reflected in a 7 written motion or argument rather than through testimony, 8 but at the lev el of generality that Mr. Mumma stated, I 9 guess I don't object to the question. 10 THE COURT: Okay. Mr. Jacobs. 11 MR. JACOBS: No position, Your Honor. 12 THE COURT: All right. It seems to me that 13 her opinion or her perception isn't relevant. She can 14 certainly say that in argument. She has an interest I think 15 in the estate. So she can certainly make an argument as to 16 what she wants to be done, but just to ask her what her 17 perception is, I don't think that's -- 18 MR. MUMMA: Maybe I misspoke. I certainly 19 would like to find out from her what opportunities she had 20 going into this to determine her position on the appointment 21 of an auditor. 22 THE COURT: All right. Were you ever asked 23 for your view as to who should be appointed auditor? 24 MS. LINDA MUMMA: No. 25 THE COURT: Well, actually, what is your name 63 • 1 and your address? 2 THE WITNESS: Linda Mumma, 512 Creek View 3 Lane, Mechanicsburg, Pennsylvania. 4 THE COURT: All right. And were you ever 5 asked for your view as to whom the Court should appoint as 6 auditor? 7 THE WITNESS: No. 8 THE COURT: Okay. 9 MR. MUMMA: Can I ask her questions? 10 THE COURT: Yeah, if you want to ask along 11 that line, but you can't ask her what her opinion is as to 12 whether I should recuse myself. 13 BY MR. MUMMA: 14 Q When you found out that an auditor was 15 appointed, how did you find out? 16 A I just recently, I believe, I can't tell you 17 exactly when, got a flurry of papers from the Court, from 18 you, and that is how I became aware of it. 19 Q So Mr. Andrews was appointed in January of 20 2005, and you have just recently become aware of his 21 appointment? 22 A I heard that Mr. Andrews was involved in some 23 way, but I did not understand what his appointment was and 24 how he became appointed. 25 Q Why did you come today to attend this 64 1 hearing? 2 A Well, when I got the papers and I started 3 looking at the level of the degree of separation between the 4 parties I became personally concerned. I have not been kept 5 up to date on the issues of the estate. I have never 6 received any final accountings. I have only received one 7 accounting from the estate. Nobody's ever bothered to 8 explain to me why the Martson law firm was involved. I was 9 always under the understanding that Morgan, Lewis was 10 involved. I had no idea that Judge Oler's mother's estate 11 was done by Morgan and Lewis or that he worked for -- 12 THE COURT: Just a minute. My mother's 13 estate was not done by Morgan, Lewis & Bockius. 14 THE WITNESS: I'm sorry. 15 THE COURT: Her will was apparently written 16 by somebody who worked for Morgan, Lewis & Bockius. My 17 mother died years ago. Please don't confuse the record with 18 statements like that. 19 THE WITNESS: I'm not trying to. 20 THE COURT: All right. We're going to take a 21 recess and resume after lunch. We will resume at 1:30. 22 (A lunch recess was taken at 11:31 a.m. and 23 court resumed at 1:30 p.m.) 24 AFTER LUNCH RECESS 25 THE COURT: Please be seated. We will let 65 . 1 the record indicate that the Court has reconvened in the 2 matter of the Estate of Robert M. Mumma. Ms. Mumma, you are 3 still under oath. Mr. Mumma. 4 (Linda Mumma resumed the stand.) 5 MR. MUMMA: Your Honor, earlier this morning, 6 if I may, there were three exhibits that I wanted to enter 7 into evidence. 8 THE COURT: Okay. Do you want to have this 9 witness identify them? 10 MR. MUMMA: Sure. 11 MR. GREEN: Your Honor, these are three 12 documents which I take it by his offering of Mr. Mumma's 13 representing are true copies of transcripts or things that 14 were filed with the Court. On that representation we have 15 no objection other than one of them is not familiar to me. 16 I would like to get a copy of it. 17 MR. MUMMA: Which one? 18 MR. GREEN: The top one. 19 THE COURT: We will mark these items 20 respectively as Robert M. Mumma, II, Exhibits 1, 2 and 3. 21 (Robert M. Mumma, II, Exhibits 1, 2, and 3 22 were marked for identification.) 23 THE COURT: And if they are stipulated to, 24 you don't have to have the witness identify them. 25 MR. MUMMA: Should I identify them? 66 • 1 THE COURT: As long as the counsel here are 2 willing to agree with you that they are what they purport to 3 be, you don't need to have a witness identify them. 4 MR. MUMMA: How will we know what the numbers 5 are? 6 THE COURT: We'll have the stenographer mark 7 them and then you can say what they are. 8 MR. MUMMA: Okay. Number 1 is a Transcript 9 of Proceedings -- proceedings held before the Honorable J. 10 Wesley Oler, Jr., April 18th, 2005. 11 THE COURT: All right. I2 MR. MUMMA: Transcript of Proceedings -- 13 Number 2 is a Transcript of Proceedings held before the 14 Honorable J. Wesley Oler August 29th, 2005, and Number 3 is 15 a memorandum of a pretrial conference held before -- or in 16 the chambers of Judge Oler on Thursday, January 2nd, 1997. 17 THE COURT: All right. Mr. Green, do you 18 have any objection to the admission of that item? 19 MR. GREEN: We do not, Your Honor. 20 THE COURT: And Mr. Jacobs? 21 MR. JACOBS: No objection. 22 THE COURT: All right. Robert M. Mumma, II, 23 Exhibits 1, 2, and 3 are admitted. 24 (Robert M. Mumma, II, Exhibits 1, 2, and 3 25 were admitted into evidence.) 67 • 1 THE COURT: Do you have anymore questions of 2 this witness? 3 MR. MUMMA: Yes, I do. 4 THE COURT: Okay. 5 BY MR. MUMMA: 6 Q Were you aware of a corporation called 7 High-Spec? 8 A I have heard of High-Spec. 9 Q Okay. Are you aware of a hearing held in 10 Carlisle here on April 18th, 2005, where I tried to enjoin 11 the estate from claiming to be a shareholder of High-Spec? 12 MR. GREEN: Your Honor, I object to this. I 13 ask for an offer of proof as to the substantive evidence 14 and/or the relevance of Ms. Mumma's awareness of either the 15 litigation or the underlying facts. 16 THE COURT: All right. Mr. Mumma. 17 MR. MUMMA: Well, Your Honor, if you'll 18 recall, you recused yourself in that hearing from this 19 matter because it involved Morgan, Lewis & Bockius 20 representing the estate. 21 THE COURT: Representing the estate? In 22 other words, this is a different case you are talking about? 23 MR. MUMMA: Well, it's all part of the -- 24 it's me versus the estate. It's all a part of the estate 25 proceedings. Morgan, Lewis & Bockius was representing the 68 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 estate. • THE COURT: What's the term and number of this case you are referring to? MR. MUMMA: 04-6183 Civil. THE COURT: Okay. That's a different case from this case, although you say they are related. And how would it help me decide whether I should recuse myself to have her say whether she remembers that? It's been stipulated to apparently that the transcript is accurate. MR. MUMMA: Well, I am just asking if she is aware that you did recuse yourself at that time because of this relationship she described this morning with Morgan, Lewis & Bockius. THE COURT: Well, what she said was that Morgan, Lewis & Bockius handled my mother's estate. It did not. But, in any event, the transcript speaks for itself, and I will sustain the objection. Next question. BY MR. MUMMA: Q Are you aware that Judge Oler recused himself from the case involving Charles E. Shields and Robert Mumma, II? A Your Honor. No. MR. GREEN: I would raise the same objection, THE COURT: All right. And is this one of 69 • 1 these transcripts? 2 MR. MUMMA: Yes. It's Exhibit Number 3. 3 THE COURT: Again, I don't think whether 4 she's aware of it or not makes any difference. I'll sustain 5 the objection. You have introduced the transcript as an 6 exhibit. What difference does it make whether she knows it 7 or whether 10,000 people know it or whether nobody knows it? 8 It is in the record apparently from what you are saying. 9 MR. MUMMA: Well, I think it's important for 10 her to know that in the past you have recused yourself when 11 there was conflict or you perceived there was a conflict. 12 And the conflict now regarding Morgan, Lewis and where this 13 is going to lead with them, and Mr. Martson and his 14 testimony, is going to be -- be much larger than the 15 conflict in the Charles Shields case. That conflict was 16 that Charles Shields -- 17 THE COURT: The objection is sustained. 18 What's the next question? 19 BY MR. MUMMA: 20 Q Do you believe Morgan, Lewis & Bockius has 21 done a thorough job of representing the estate? 22 MR. GREEN: Your Honor, I object to the 23 relevance and the call for lay opinion on a matter not 24 material to anything before the Court today. 25 THE COURT: Mr. Mumma. 70 • 1 MR. MUMMA: Your Honor, the issue is if 2 Morgan, Lewis & Bockius has committed a crime here by taking 3 assets that did not belong to the estate and putting them 4 into the estate, selling those assets, and distributing the 5 cash to the executrices, Morgan and Lewis and their action 6 is going to become a big issue here, and I am asking her if 7 she is aware that that is where this is headed, and, if so, 8 I am asking her if she feels we can have a fair hearing in 9 front of a judge whose father was a partner at Morgan, Lewis 10 & Bockius. 11 THE COURT: In what year? What year was he a 12 partner? 13 MR. MUMMA: As I understand it, 1977. 14 THE COURT: All right. The objection is 15 sustained. Do you have any other questions for this 16 witness? 17 MR. MUMMA: It doesn't change the family 18 relationship, Your Honor. 19 THE COURT: What's the next question? 20 BY MR. MUMMA: 21 Q Do you feel you are getting a fair hearing in 22 the estate? 23 A Would you say that again? Do I feel what? 24 Q Do you feel, given the fact that the Judge 25 has been a partner at Martson and his father was a partner 71 • 1 at the Morgan, Lewis firm, that you can have a fair hearing 2 in these issues? 3 THE COURT: Did you say I was a partner with 4 Mr. Martson? 5 MR. MUMMA: My understanding is you worked 6 for his firm. 7 THE COURT: I worked for his firm. I 8 certainly wasn' t a partner. I was a mere associate for 2 to 9 3 years. Mr. Gree n, do you object to that question? 10 MR. GREEN: Your Honor, I do. I think her 11 opinion on that matter is i rrelevant. Certainly it's 12 irrelevant for her to give factual testimony as to her 13 opinion. If she has a posi tion to advance before the Court, 14 it can be done through briefing or argument, as with any 15 other litigant. 16 THE COURT: Mr. Jacobs? 17 MR. JACOBS: No position, Your Honor. 18 THE COURT: All right. The objection is 19 sustained. 20 MR. MUMMA: No further questions. 21 THE COURT: Mr. Green. 22 MR. GREEN: Your Honor, I have no questions. 23 THE COURT: And Mr. Jacobs. 24 MR. JACOBS: Nothing on this first motion, 25 Your Honor. 72 1 THE COURT: All right. You may step down. 2 Mr. Mumma, anything further? 3 MR. MUMMA: I call Barbara Mumma. 4 Whereupon, 5 BARBARA MANN MUMMA 6 having been duly sworn, testified as follows: 7 MR. GREEN: Your Honor, it may be premature, 8 but I thought I would ask for an offer of proof as to the 9 testimony of this witness. 10 THE COURT: Mr. Mumma, what is your offer of 11 proof as to this witness? 12 MR. MUMMA: My intention is to ask her if she 13 believes that it would be proper for a Judge that worked for 14 the Martson firm, and whose father worked at the Morgan, 15 Lewis firm be hearing these cases, and whether she felt that 16 it is proper for Mr. Andrews to act as an auditor. 17 THE COURT: Okay. Mr. Green. 18 MR. GREEN: Your Honor, as with Ms. Mumma a 19 few moments ago, I don't believe that the opinions of 20 Ms. Mumma -- Ms. Barbara Mumma are relevant to that issue. 21 I don't think they are admissible. She has counsel here who 22 presumably will make any argument on her behalf in respect 23 to these motions, but hearing her view as a litigant as to 24 the manner in which she perceives the Court or the auditor 25 had performed is in my view improper and irrelevant. 73 • 1 THE COURT: Okay. Mr. Jacobs, this is your 2 client. What is your position? 3 MR. JACOBS: Your Honor, we certainly want to 4 give Mr. Mumma the broadest possible latitude to develop a 5 factual record in support of his motion. So if they are 6 relevant facts that he wants to elicit, that is one thing. 7 I think asking the witness her view on what's essentially a 8 legal issue really doesn't advance the ball, and I don't -- 9 I think that really is a legal issue, not a factual 10 question. 11 THE COURT: All right. The objection to her 12 testimony as offered is sustained. 13 MR. MUMMA: Your Honor, can I ask her about 14 her knowledge of the appointment of Taylor Andrews? 15 THE COURT: Of who? 16 MR. MUMMA: Taylor Andrews. 17 THE COURT: If you think there is something 18 that I did improperly in connection with that appointment 19 and she has some factual information, you may ask her that 20 question. You may stay up there, and if you would give your 21 name and your address, please. 22 THE WITNESS: My name is Barbara Mann Mumma, 23 and my address is -- I just moved -- 541 Ridge View Drive in 24 Lemoyne, Pennsylvania. 25 DIRECT EXAMINATION 74 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. MUMMA: Q When did you become aware of the appointment of Taylor Andrews as Auditor for this estate? A A couple of years ago. Q Were you aware that the estate had sought the appointment of an auditor prior to that? A No. Q Did you have any opportunity to give any input as to the selection of an auditor? A No. Q Do you know Mr. Andrews? A Yes. Q Have you known him -- how long have you known him for? A I think I met Taylor 30 years ago because of a good friend of mine, and there's a relationship, a family relationship there. Q Okay. Do you believe the progress of the audit is satisfactory? MR. GREEN: Objection, Your Honor. I do object. I think her perception of that again as a litigant as a subject of factual testimony before the Court is neither relevant to the particular issue of recusal nor appropriate, in any event. She has counsel. She's had an opportunity to participate in all aspects of this, file any 75 1 motions that she deems appropriate, but to come in and give 2 factual testimony I think is not the way this ought to 3 proceed. 4 THE COURT: Okay. Mr. Mumma, do you have a 5 response? 6 MR. MUMMA: Yes, sir. The law is pretty 7 clear. He had 90 days to file his report. He asked for two 8 6 month extensions. They were granted to him. He's asked 9 for no more extensions, and he says he's at least 18 months 10 behind and he cannot predict how far out into the future 11 it's going to go, and I don't believe that shows any 12 fidelity to the system, and I don't believe the system 13 itself in allowing that kind of a lax attitude when 14 preparing a report is being -- I don't think there's any 15 fidelity on the Court's part to the law. 16 THE COURT: Okay. Mr. Jacobs. 17 MR. JACOBS: Your Honor, I think certainly it 18 can be argued that the progress is less than satisfactory. 19 The witness's opinion on that really is not -- is not how we 20 decide if the progress has been satisfactory. The facts 21 really should. 22 THE COURT: The objection is sustained. Any 23 other questions of this witness? 24 MR. MUMMA: No. 25 THE COURT: Okay. Mr. Green. 76 • 1 MR. GREEN: No questions, Your Honor. 2 THE COURT: Mr. Jacobs. 3 MR. JACOBS: No questions, Your Honor. 4 THE COURT: All right. You may step down. 5 Thank you. Mr. Mum ma, doe s that conclude your presentation 6 on the issue of whether I should recuse myself? 7 MR. MUMMA: My presentation for today, Your 8 Honor, but again I would r equest an opportunity to file 9 briefs. 10 THE COURT: All right. Well, we're just in 11 the evidentiary phase at t his point, and I need to make sure 12 everybody has had a chance to place the facts on the record 13 that they want to. I assume that that was your last 14 witness. You still can ar gue, obviously. 15 MR. MUMMA: Yeah, but I didn't want you to 16 think I don't want to cont inue to make a further 17 presentation through a brief. 18 THE COURT: Well, all right. And, Mr. Green, 19 do you have any wit ness to call? 20 MR. GREEN: We have no witnesses or evidence, 21 Your Honor. 22 THE COURT: And Mr. Jacobs? 23 MR. JACOBS: No evidence, Your Honor. 24 THE COURT: All right. We will move then 25 into the next phase of the hearing, and that is whether 77 • 1 Mr. Andrews' appointment should be vacated. Mr. Mumma. 2 MR. MUMMA: We call Taylor Andrews. 3 Whereupon, 4 TAYLOR P. ANDREWS 5 having been duly sworn, testified as follows: 6 MR. MUMMA: Your Honor, should I start a new 7 record? 8 THE COURT: Well, I think you should ask 9 Mr. Andrews his name and address and so on and then bring 10 out the facts that you think are important on this point 11 because as I understood it you were not presenting any 12 evidence in that last phase of the hearing as to his 13 qualifications to continue as Auditor even though some of 14 the testimony that came out, I understand you will be 15 arguing, affects the Court's performance. So I would start 16 a new -- bring out your evidence that you think relates 17 directly to his qualifications to continue. 18 MR. GREEN: Your Honor, just for the record, 19 of course, we can proceed however Your Honor prefers, we 20 would have no objection to incorporating this morning's 21 record into today's in some fashion so we don't have to 22 repeat, but again, however Your Honor wishes to proceed. 23 THE COURT: All right. Well, Mr. Mumma, are 24 you agreeable to that? 25 MR. MUMMA: I believe I am as long as it's -- 78 1 because there was two different motions. If one gets 2 appealed and the other one doesn't, the whole record 3 goes. 4 MR. JACOBS: I would agree with that. I 5 think it makes sense to save time. 6 THE COURT: Okay. We will consider what was 7 said at the earlier part of this hearing as being -- to the 8 extent that the parties feel relevant, applicable also to 9 the request for the vacation of Mr. Andrews' appointment. 10 Would you state your name and address again, please? 11 THE WITNESS: Taylor P. Andrews. My 12 professional address is 78 West Pomfret Street in Carlisle, 13 Pennsylvania. 14 DIRECT EXAMINATION 15 BY MR. MUMMA: 16 Q I'm trying to find my place here, excuse me. 17 This may be repetitive, but I would like to because it gives 18 me a frame reference to start from. On April lst, 2005, do 19 you recall filing a motion for an extension of time to file 20 a report? 21 A I know I filed a motion for an extension. I 22 can't tell you the date, but if you tell me it was April I 23 can't disagree with that. 24 Q Okay. And in that report or request, you 25 cited Rule 8.2 as the need for an extension. 79 • 1 A I have not looked at my request, but that 2 very well may be. 3 Q Are you familiar with Rule 8.2? 4 A Not as I sit here. I would have to look at 5 it again. 6 Q Are you familiar that there is a time limit 7 in which the Auditor's report shall be filed? 8 A I believe there is, but to be extended by the 9 Court, and certainly in this case that was necessary. 10 Q Do you know where it gives the Court 11 permission to extend? 12 A I can't identify that for you as I sit here, 13 no. 14 Q And on September 27th, 2005, do you recall 15 filing a secon d motion for extension? 16 A I don't have a recollection, but if the 17 record indicat es I did so, I did so. 18 MR. GREEN: What's that date? 19 MR. MUMMA: September 27, 2005. 20 MR. GREEN: Thank you. 21 BY MR. MUMMA: 22 Q At any point after you filed the second 23 request for an extension on September 27th, 2005, did you 24 file a third o r subsequent motion for another extension of 25 time? 80 • 1 A I don't believe there was an explicit motion 2 for an extension of time for the submission of a report. I 3 believe there was a -- and I'm doing this as much as I can 4 from memory. There had been extensive conferencing and 5 scheduling of discovery. There was a recommended order -- I 6 think a report with a recommended order provided to Judge 7 Oler, and I thought it was towards the end of 2005, which 8 scheduled various discovery to be done, which clearly 9 extended into the future, but, no, just to the extent that 10 that implicitly recognized that there was a process going on 11 that was going to take an undetermined amount of time, but 12 there was, I don't think, another application explicitly 13 seeking an extension. 14 Q Were you aware that Judge Hoffer had set 15 dates for the final accounting, dates to file objections to 16 that accounting, and then agreed that there would be a 17 hearing -- that we would hold a hearing on the issue of 18 removing the executrix? 19 A I don't remember that specifically. I 20 believe it was Judge Hoffer's orders that preceded the 21 filing of accountings that led to the objections -- or led 22 to the appointment of the Auditor. 23 Q Were you aware that his order was generated 24 by a motion to remove the executrix? 25 A I understood that that was still an issue. 81 • 1 That was a matter of relief that was still at play in these 2 proceedings. 3 Q Do you believe that you are involved with the 4 motion to replace the executrices? 5 A That could be a remedy. That could be a 6 recommendation coming from the Auditor proceedings. 7 Q Well, if in the meantime during all of this 8 delay executrices are out selling assets they do not own, 9 but commandeering assets that are not theirs, what is the 10 beneficiaries or the proper owners of those assets relief to 11 keep that -- those assets of stock certificates from being 12 sold by third parties? 13 MR. GREEN: Your Honor, I object to the 14 question, in essence asking again a judicially-appointed 15 officer to comment on his view of the evidence of factual 16 circumstances in the guise of factual testimony. All of 17 this should await rulings on motions or any papers brought 18 before the Court, but to simply call him up and ask him his 19 view of the way certain things could or couldn't proceed or 20 what rights the parties may have strikes me as being highly 21 irregular. 22 THE COURT: Mr. Mumma. 23 MR. MUMMA: I disagree with that. First of 24 all, I would like to continue my objection to Morgan, Lewis 25 & Bockius participating in this. Secondly, I asked 82 • 1 Mr. Andrews whether he thought that was a part of his 2 assignment, and it sounds to me like he does, but in the 3 meantime nobody has the opportunity to stop this, to prevent 4 them from stealing our assets and selling them and taking 5 the money, and that is exactly what is going on here. 6 THE COURT: You may certainly make that 7 argument if you get the facts in to support it, but, 8 Mr. Jacobs, what is your position on the question? 9 MR. JACOBS: No position, Your Honor. 10 THE COURT: All right. The objection is 11 sustained. 12 BY MR. MUMMA: 13 Q Mr. Andrews, do you think you have an 14 obligation to be fair to the beneficiaries? 15 A Yes. 16 Q And how is it fair to the beneficiaries who 17 have filed objections if they are not answered in a prompt 18 manner? 19 A I am not precisely sure which objections you 20 are referring to. There have been an awful lot of filings 21 in this case. I would agree that it is fair to all parties 22 for the proceedings to move as expeditiously as possible. 23 Q Well, are you aware that the estate is 24 pursuing a lawsuit over the stock of High-Spec, Inc.? 25 MR. GREEN: Your Honor, I object to the 83 • 1 relevance of this. This again is something which should be 2 brought to the Court's attention or Mr. Andrews' attention 3 if at all through a filing rather than asking him here. 4 His awareness of certain facts, and then presumably his 5 opinions about their significance either to the estate or to 6 his anticipated rulings, I would object to. 7 THE COURT: Mr. Mumma, do you have a 8 response? 9 MR. MUMMA: I do, Your Honor. It is the very 10 issue of the whole thing. We are not getting due process 11 because Mr. Andrews is not addressing any of these issues. 12 He's not even addressing the discovery issues that have been 13 before him, and the Court -- this Court has recused itself 14 from any issues with High-Spec, and the whole thing is at a 15 standstill. 16 There's other companies out there and other 17 stock interests, other ones we raised in our objections back 18 in 2005, and not one hearing as to whether or not the estate 19 has the ownership and control of those assets that they're 20 selling and operating has ever been held, and we are not in 21 any kind of framework that we're going to get a hearing on 22 those specific -- very specific issues. So if we have a 23 corporate issue where the estate is doing something that the 24 beneficiaries disagree with, there is no relief available 25 for a specific issue. 84 • 1 THE COURT: Okay. Mr. Jacobs. 2 MR. JACOBS: No position, Your Honor. 3 THE COURT: All right. The objection is 4 sustained. 5 MR. MUMMA: Am I wasting my time here, Your 6 Honor? 7 THE COURT: Is that a question? 8 MR. MUMMA: Well, yeah. I mean that is a 9 question because apparentl y we are never going to get due 10 process. 11 THE COURT: Have you finished questioning 12 Mr. Andrews? 13 MR. MUMMA: No, I have quite a few more. 14 I'll go through the motion s. 15 THE COURT: Then go ahead. 16 BY MR. MUMMA: 17 Q Subsequent to your appointment as Auditor in 18 January of 2005, have you been copied on various orders 19 issued by Judge Oler in th is estate case? 20 A I believe s o. I mean if I am not, I don't 21 know that I am not. 22 Q Do you reca ll receiving copies of the orders 23 when he refers a matter to you for further disposition? 24 A There have been several. 25 Q Is it true that most of these orders 85 • 1 contained a provision whereby the Orphans Court requests you 2 as the Auditor for a recommended -- or a brief interim 3 report on the matter being referred? 4 A That sounds familiar from several. 5 Q Do you recall the Court's order of 6 March 11th, 2005, referring a requested removal of the 7 Executrixes and trustees to you for your disposition? 8 A Give me that title again. What was it in 9 2005? 10 Q March 11, 2005, referring a request of 11 removal of the executrixes and/or trustees to you for 12 disposition. 13 A That's why I thought that was within the 14 realm of what the Auditorship proceedings were about. 15 Q And could you tell me what steps you have 16 taken to dispose of just that issue? 17 MR. GREEN: Your Honor, I object. All of 18 this is of record, the orders, the timeline, and I 19 understand that Mr. Mumma, and, in fact, all of the parties 20 may have their view, including us, of the timeline, the 21 progress, how we feel about it, none of which is at all 22 relevant to the Court's disposition in the sense that we 23 need factual testimony about it. 24 Everything that Mr. Mumma said a moment ago I 25 concede. It is an argument. Whether it is a good, bad or 86 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 indifferent argument, it is an argument, and that is the way it should be dealt with. We do not need Mr. Andrews' recollection of which orders have been entered of record or not because they have been entered. That can all be documented, and the parties can argue from them whatever they want relative to Mr. Andrews' performance and what his performance means or shouldn't mean in terms of further relief. So I object to this sort of questioning because we could be here all day just rehashing a record which exists in the files of the courthouse, and, in deed, of all of the parties. THE COURT: Okay. Mr. Jacobs. MR. JACOBS: I think some questioning of the Auditor about the specifics and the pace of things may be in order on this issue, Your Honor. THE COURT: All right. I think Mr. Mumma's -- one of his points is that Mr. Andrews has not proceeded expeditiously, and he is just asking what steps Mr. Andrews took procedurally to move the case along. So I will permit the question. THE WITNESS: I will need to hear the question again. Sorry. MR. MUMMA: Could you read it back, please? (The court reporter read back the referred-to 87 • 1 portion of the record.) 2 THE WITNESS: That issue was in the spring of 3 2005. I believe after that we had conferences in 4 anticipation of discovery to try and move this matter to a 5 hearing. The object of discovery was discussed at those 6 meetings, and that was still a remedy that was available. 7 It was not being dealt with separately. I am also prepared 8 to just speak to the question of expeditious proceedings, if 9 it is your desire that I do so. 10 BY MR. MUMMA: 11 Q Well, what are your responsibilities with 12 regards to expeditious proceedings? 13 A Well, I think I do have a responsibility to 14 move in an expeditious way to a conclusion, and I would 15 concede I have not. I am not happy with my performance as 16 an Auditor. 17 Q Mr. Andrews, if the fox is in the hen house, 18 when do you chase him out? 19 A I have no idea what you mean by that, 20 Mr. Mumma, but I can tell you that the scope of the 21 responsibilities here and the time requirements are greater 22 than I certainly anticipated. I feel an obligation to Judge 23 Oler, who appointed me to perform this work, but frankly I 24 am having trouble coming up with the time to devote to the 25 scope of the motions, the scope of the filings, and that is 88 • 1 why matters have not moved expeditiously. 2 MR. MUMMA: May I approach, Your Honor? 3 THE COURT: All right. 4 BY MR. MUMMA: 5 Q Mr. Andrews, I would like you to read the 6 title into the record, and then I will direct your attention 7 to the highlighted cannon 3-A-5 and the footnote. 8 THE COURT: Cannon of what? 9 MR. MUMMA: Ethics. 10 THE COURT: Judicial ethics? 11 THE WITNESS: This is the cannon of judicial 12 conduct, and I have been asked to read cannon 3, subsection 13 5, which says judges should dispose promptly the business of 14 the court. The note under that is prompt disposition. It 15 requires judges to devote adequate time to their duties, to 16 be punctual, and attending to court expeditiously in 17 determining matters under submission and to insist that 18 court officials, litigants and the lawyers cooperate with 19 them to that end. Is that what you wanted me to read, 20 Mr. Mumma? 21 BY MR. MUMMA: 22 Q Do you think you have complied with those 23 terms? 24 A Well, to the extent that I am performing a 25 judicial function, I have been more full of good intentions 89 • 1 than performance. 2 Q Mr. Andrews, I am not questioning your 3 intentions. 4 A I know. 5 Q This is all about a matter of time? 6 A That's right. 7 Q It's been 22 years? 8 A I am not responsible for all 22 years. 9 Q Exactly, you are not, but since 2004, when 10 the final accounting was first filed, and the objections 11 were filed, it has been another 4 years, and, I don't know, 12 5 months, okay? And we still haven't had the decision on 13 the removal of the executrix that Judge Hoffer -- who is now 14 dead, God, bles s him -- promised us. 15 THE COURT: What's the question? 16 BY MR. MUMMA: 17 Q Do you believe that that's adequate -- do you 18 believe that we are getting due process? 19 A I beg your pardon? 20 Q Do you believe that this estate is getting 21 due process? 22 A That's a very -- I believe the estate is 23 getting due pro cess. Unfortunately, I think it has been a 24 slow process. 25 Q Do you have any intention on resolving the 90 • 1 issue of removal of the executrix for things they have done 2 in the past, not things that they're going to answer to in 3 the future, do you have any objection to their -- to having 4 a hearing on that issue, that sole issue? 5 A It has not been my intention to have any 6 separate hearing on the removal of the personal 7 representative aside from whatever hearing would bear all 8 claims against this estate, and that's -- I think it's in 9 everybody's interests to move to that hearing as soon as 10 possible. That's been a challenge. 11 It's been a challenge just to bring the 12 attorneys and you together, sir. It has been a challenge to 13 communicate, and in order to schedule meetings, it has been 14 a challenge, but it has also been a challenge, knowing the 15 time that is required. Much of the delay must rest on me as 16 well. 17 Q But you are aware that it took four efforts 18 to get the Court to order -- and only after the Court 19 ordered them to do it, did they file a final accounting? 20 You are aware of that? 21 A Well, I am aware of whatever filings I have. 22 Q Do you recall the Court's order of April 23 22nd, 2005, referring a request for an order that the estate 24 has waived its right to contest a disclaimer filed and 25 revoked or alternatively request for immediate hearing 91 • 1 regarding same to you for disposition? 2 THE COURT: A disposition or a 3 recommendation? 4 MR. MUMMA: Disposition. 5 THE COURT: Read the order, if you will. 6 MR. MUMMA: I will make this an exhibit, Your 7 Honor. 8 (Robert M. Mumma, II, Exhibit No. 4 was 9 marked for identification.) 10 BY MR. MUMMA: 11 Q Would you re ad that into the record, please? 12 MR. JACOBS: Your Honor, could I just ask 13 Mr. Mumma to identify or to have the witness identify the 14 exhibit? 15 THE COURT: Okay. This is Robert M. Mumma, 16 II, Exhibit 4. 17 MR. MUMMA: Would you identify that? Is that 18 what you mean? 19 MR. JACOBS: Is it an order with a date on 20 it? 21 THE WITNESS: I have been asked to read it. 22 Will that serve the purpose ? 23 MR. JACOBS: If that will identify it, that's 24 fine. 25 THE WITNESS: The caption is to In Re: 92 1 Estate of Robert M. Mumma, No. 21-86-398, AND NOW, this 22nd 2 day of April, 2005, upon consideration of Petitioner's 3 Request for Order That Estate Has Waived Its Right To 4 Contest a Disclaimer Filed and Revoked or, Alternatively, 5 Request for Immediate Hearing To Determine Whether the 6 Estate Has Waived Its Right, this matter is referred in the 7 first instance to the auditor, Taylor P. Andrews, Esquire. 8 And I do recall the topic of the disclaimer 9 was a matter of conversation when we got together with 10 counsel, and you, Mr. Mumma, on more than one of our 11 meetings, and that was -- as has been pointed out, a 12 previous decision was deemed not final, I think by the 13 Superior Court, because it was not a part of the final 14 adjudication. 15 The expectation is that a decision will be 16 made that would be a part of the final adjudication. You 17 argued that it was a law of this case, the estate argued 18 differently, and that was going to be resolved as a part of 19 the final adjudication. 20 Q But what are we asking for in the motion? 21 A You were asking to bar the estate from 22 arguing the disclaimer, but not the revoke. 23 Q Or in the alternative what? What was the 24 alternative that we -- 25 A You've taken the order from me. I read the 93 • 1 order. 2 Q Would you read what the alternative is? 3 A Well, that's the -- upon consideration of the 4 Petitioner's request, and I believe this was the title of 5 the request. So one of the requests was a request for 6 immediate hearing to determine whether the estate has waived 7 its right. That was a part of the title of the request. 8 It was referred, in the first instance, to me by Judge Oler. 9 Q For an immediate hearing? 10 A No. Well... 11 Q That is what we're asking for? 12 A Right. 13 Q Is that not what we're asking for? 14 A That was on the title of the motion. If the 15 Judge was to give you an immediate hearing, I imagine you 16 would have had an immediate hearing. 17 Q He referred it to you, correct? 18 A That's right. 19 Q And he asked you to decide whether the estate 20 has waived its right to contest the disclaimer or give us an 21 immediate hearing on the matter? 22 MR. GREEN: Your Honor, at this point we are 23 simply arguing with the witness. I would object again. 24 The filing is of record, the order is of record, and we can 25 all establish what has or hasn't happened since that time. 94 • 1 I don't know that arguing with the witness about its 2 significance is furthering the process. So I object. 3 THE COURT: Mr. Jacobs. 4 MR. JACOBS: I think the facts are of record, 5 Your Honor. 6 THE COURT: Your position on the objection? 7 MR. JACOBS: I agree with the objection. 8 THE COURT: Okay. Mr. Mumma, did you want to 9 respond? 10 MR. MUMMA: I am trying to show, Your Honor, 11 that even when the Court says, you decide this, he doesn't 12 do anything about it. It's 2005. 13 THE COURT: Well, you are using the word 14 decide. To me that has a special meaning. I don't think 15 the Auditor decides anything. The Auditor makes 16 recommendations. I did not order, at least in my 17 interpretation of that, an immediate hearing be held. I 18 referred the matter to the Auditor to be included among his 19 other assignments. 20 MR. MUMMA: Which is like saying -- the Court 21 saying we're not -- it's not denying the request for a 22 hearing, it's putting it on the shelf in Taylor Andrews' 23 office. That is not due process. 24 THE COURT: It is asking Mr. Andrews to 25 handle it in the first instance. 95 MR. MUMMA: Which he's never done. 2 THE COURT: Well, that is part of your 3 argument. I understand your argument. Any other questions 4 for Mr. Andrews? 5 BY MR. MUMMA: 6 Q Do you recall an order of April 29th, 2005, 7 referring a motion to compel inspection of all books and 8 records to you for purposes of a recommended order? 9 A I don't have a specific recollection, but it 10 certainly sounds like something that we had. It was 11 discussed at a conference with counsel and yourself, sir. 12 MR. MUMMA: I would like to mark this as 13 Exhibit No. 5, please. 14 (Robert M. Mumma, II, Exhibit No. 5 was 15 marked for identification.) 16 BY MR. MUMMA: 17 Q Would you please read that into the record 18 for us? 19 A This is the same caption, Order of Court, AND 20 NOW, this 29th day of April, 2005, upon consideration of 21 Petitioner's Motion To Compel Inspection of All Books and 22 Records, this matter is referred in the first instance to 23 the Auditor, Taylor P. Andrews, Esquire, for purposes of 24 recommending an order. 25 Q Did you ever issue a recommended order? 96 • 1 A I believe I did actually in response to that. 2 I mean we had conferences and we scheduled discovery and 3 what was to be discovered. There were dates by which things 4 were to be done. That went to the Judge as a recommended 5 order, and I believe he signed an order adopting it. 6 Q The motion to compel all of the production -- 7 A At our conferences there was a disagreement 8 as to what you were entitled to. You maintained from the 9 outset you were entitled to see every single document that 10 ever pertained to this estate administration, and the estate 11 contended that you were entitled to what was relevant, and 12 we tried to work that through at conferences, and we 13 scheduled discovery, and I understood the discovery for the 14 most part had taken place. 15 Q Could you give me an indication what you 16 would consider to be a non-relevant document that would be 17 found in an estate administrative file? 18 MR. GREEN: Your Honor, I object. The 19 question is very vague, and at this point, again, it's hard 20 to see how a question like this advances this hearing, how 21 it pertains to any issue before the Court with respect to 22 whether Mr. Andrews' appointment should be vacated. I also 23 renew the objection to this manner of proceeding of simply 24 recounting the history of these proceedings as opposed to 25 introducing new facts, if any, that might be helpful to the 97 1 Court. 2 THE COURT: Okay. Mr. Jacobs. 3 MR. JACOBS: No position on this. 4 THE COURT: Okay. Mr. Mumma, it seems to me 5 that you are coming very close to getting into Mr. Andrews' 6 thought processes in terms of the merits of the case, and I 7 don't want -- it is not fair to him to do that, and it is 8 counterproductive to his judicial functions. I am going to 9 sustain the objection. 10 I have a hearing at 2:30. You may step down, 11 Mr. Andrews. I don't think it's going to take very long. I 12 would really like to get this hearing done today. So we 13 will resume after the other hearing. Court is in recess. 14 (A recess was taken at 2:13 p.m.) 15 THE COURT: Please be seated. 16 (Taylor P. Andrews resumed the stand.) 17 THE COURT: Mr. Andrews, you are still under 18 oath. We will let the record indicate that the Court has 19 reconvened in the case of the Estate of Robert M. Mumma. 20 MR. MUMMA: Your Honor, it occurs to me it 21 might be more productive of your time if everybody could 22 just stipulate that there are 19 of these outstanding 23 requests for a report from the Auditor. 24 THE COURT: All right. Can everybody 25 stipulate to that? 98 • 1 MR. GREEN: I don't believe we can stipulate 2 without seeing it. We recently sent a letter to Mr. Andrews 3 cataloguing what we understood to be the items. I don't 4 recall how many were on the list. Certainly we can 5 stipulate there have been a number of items, and they're 6 reflected in the docket. It did sound as though there were 7 certain items Mr. Mumma perceived were still outstanding 8 that we perceive are not, but we could say the number's 9 larger than 10. 10 THE COURT: Can we stipulate that the docket 11 speaks for itself as to how many there have been and which 12 ones are outstanding? 13 MR. MUMMA: That's fair, but there's also 14 five other ones that they filed with the Court that have 15 never -- nothing's ever happened in any fashion to those. 16 THE COURT: Mr. Green, are you familiar with 17 that? 18 MR. GREEN: I'm not. I'm not aware of any 19 items that have not been referred by -- either disposed of 20 by the Court by setting a hearing or referred to 21 Mr. Andrews, but I could be mistaken. 22 THE COURT: Mr. Jacobs, do you think there 23 are still outstanding motions that have not been either 24 disposed of or referred -- or scheduled for a hearing before 25 this Court or referred to Mr. Andrews? 99 • 1 MR. JACOBS: As I stand here I am not aware 2 of any, but the docket, I assume, would reveal that, and I 3 certainly am willing to stipulate that the Court could take 4 judicial notice of the docket. The number 19 doesn't sound 5 that off. I have no reason not to accept that number. 6 THE COURT: Mr. Mumma, what are the ones that 7 you think have not been referred to Mr. Andrews? 8 MR. MUMMA: There's a July 16th, 2008, letter 9 from Taylor to the Manson firm. 10 THE COURT: A letter? 11 MR. MUMMA: A letter specifically -- I think 12 it's a letter Mr. Green was referring to, and it lists under 13 B petitions -- pending motions and petitions filed May 30th 14 of 2008 by Mrs. Mumma and Mrs. Morgan. My understanding is 15 that those 5 petitions have not been addressed in any 16 fashion by the Court, and once again, this is just a further 17 delay we're experiencing here because of the inadequate 18 responses. 19 THE COURT: Mr. Green. 20 MR. GREEN: I honestly can't speak to that, 21 Your Honor. I had thought that these had been referred, but 22 I could be wrong. There are 5 motions that we filed at the 23 close of the last set of deadlines that Your Honor had set, 24 which was the end of May, and I honestly don't know as I 25 stand here. I had thought they had been -- Mr. Faller 100 • 1 believes that they -- 2 MR. FALLER: I thought they had been referred 3 as well, Your Honor, but the record -- as we said, the 4 docket speaks for itself whether there was an order issued 5 referring them or not. 6 MR. GREEN: We could certainly square that up 7 and notify the Court of any items that we think are -- would 8 fall into that category, if that helps. 9 THE COURT: Well, I will certainly act upon 10 them if I can find out which ones there are. There have 11 been a multitude of motions filed in this case, but I had 12 thought that everything had been acted upon. In any event, 13 it seems to me the docket will speak for itself as to 14 whether they were referred or not. 15 MR. GREEN: We would certainly so stipulate. 16 THE COURT: Mr. Mumma. 17 MR. MUMMA: In the meantime, Your Honor, we 18 are put at a distinct disadvantage because our assets are 19 being dissipated in this process while this is going on. 20 THE COURT: You are starting to make an 21 argument. If you have any other questions for Mr. Andrews, 22 go ahead. 23 MR. MUMMA: Yes, I do. I do. 24 BY MR. MUMMA: 25 Q Mr. Andrews, do you recall a January 14th, 101 • 1 2008, letter, and I will show you a copy of it to refresh 2 your -- 3 MR. MUMMA: I would like to enter this as an 4 exhibit. 5 (Robert M. Mumma, II, Exhibit No. 6 was 6 marked for identification.) 7 THE WITNESS: Your question was do I recall 8 this letter? 9 BY MR. MUMMA: 10 Q Do you recall that letter? 11 A Yes, I do. 12 THE COURT: How has it been marked, 13 Mr . Mumma? 14 MR. MUMMA: I believe it will be Exhibit 6. 15 THE COURT: This is Robert M. Mumma, II, 16 Exhibit 6. 17 BY MR. MUMMA: 18 Q Now the deposition notice, do you recall who 19 was going to be deposed? 20 A It was Joseph A. O'Connor. 21 Q Okay. And do you recall what Mr. Joseph A. 22 O'Connor's po sition is with regards to this case? 23 A He is counsel for -- for the estate -- for 24 the -- 25 Q He is the senior counsel? 102 • 1 A Yes. 2 Q Is he not? And is there some reason that you 3 felt compelled to keep us from taking his deposition? 4 MR. GREEN: Your Honor, I would object to 5 questioning again Mr. Andrews as a judicial appointee to his 6 position about his reasonings and rational other than what 7 is reflected in the letter as to what he might choose to 8 share, and I don't see that it's appropriate for him to 9 answer that question in this context. 10 THE COURT: And what does this letter say? 11 MR. GREEN: If I may, Your Honor. 12 MR. MUMMA: Would you like a copy? 13 THE COURT: If somebody would just read it, 14 unless it is lengthy. 15 MR. GREEN: No, no. It says this letter is 16 in response to a letter I have received from Attorney Faller 17 pertaining to the deposition notice served by Robert M. 18 Mumma, II, for the deposition of Joseph A. O'Connor, 19 Esquire, on January 21, 2008, in Lemoyne. I note that the 20 deposition notice implicates discovery matters that have 21 been before me and which are not entirely resolved. I also 22 note that Attorney Green is unavailable at the noticed date 23 and time. In light of the above, I direct that this 24 deposition not proceed until we have had a chance to confer 25 at a conference that I will endeavor to schedule within the 103 • 1 next 30 days. Very truly yours, Taylor Andrews. 2 THE COURT: All right. And, Mr. Mumma, what 3 do you want to ask him? 4 MR. MUMMA: I want to ask him why he decided 5 to send this letter to cancel this deposition. 6 THE COURT: Well, the letter -- doesn't the 7 letter speak for itself? 8 MR. MUMMA: He doesn't give any justification 9 for cancelling it other than Mr. Faller requested it. 10 THE COURT: It says that there are 11 outstanding issues of discovery as to whether this testimony 12 would be discoverable. That would seem to me what he was 13 saying. I am going to sustain the objection. What is the 14 next question? 15 BY MR. MUMMA: 16 Q Did you ever hold a conference? 17 A I tried to. 18 Q Did you? 19 A No. 20 Q Then how did you try to do it? 21 A We sent out multiple proposed dates to 22 counsel and to yourself. It was difficult communicating 23 with you. At the time that we sent that out, we got word -- 24 it was indicated that the fax number we were using to try 25 and communicate with you was not working. We got responses 104 • 1 I think from everybody but you. 2 I went ahead and picked a date to schedule it 3 on the expectation that you would be available and sent out 4 a notice of a specific date for that conference, and at that 5 time I heard that you were conflicted. So we could not 6 proceed on the date that we had scheduled. It was scheduled 7 again in March, I believe it was, and I don't recall, but it 8 occurs to me that there was a conflict on that occasion as 9 well. The conference did not occur. 10 (Robert M. Mumma, II, Exhibit No. 7 was 11 marked for identification.) 12 BY MR. MUMMA: 13 Q Do you remember receiving this letter? 14 A I think I did receive this letter. 15 Q Could you -- 16 THE COURT: Wait, wait. How has this been 17 marked? 18 MR. MUMMA: It's Exhibit 7. 19 BY MR. MUMMA: 20 Q Would you identify the letter for the Court? 21 A What I have been handed is a letter from you 22 to me dated March 11th, 2008, regarding Auditor proceedings. 23 THE COURT: And has this been marked as an 24 exhibit? 25 THE WITNESS: My copy is not so marked. 105 1 MR. MUMMA: Seven. 2 THE COURT: All right. Are you handing him 3 something that has not been marked? In other words, why 4 don't you hand him the original of what has been marked 5 rather than a copy? 6 BY MR. MUMMA: 7 Q Did you respond to that letter in any 8 fashion? 9 A I don't believe so. 10 Q What's the date of that letter? 11 A March 11th. 12 Q And what does that letter do? 13 A This letter announces dates that you are 14 available for a conference. 15 Q Would you read in the second paragraph the 16 second sentence, please? 17 A Please recall that Judge Oler's most recent 18 scheduling order references a deadline of May 31st, 2008. 19 Therefore, all issues concerning the scheduling of said 20 Auditor's conference should be resolved promptly. 21 Q Do you think it was important for us to be 22 able to resolve this and move ahead to meet the deadline 23 that's been imposed? 24 A It would have been helpful. 25 Q Mr. Andrews, I have a question for you. Who 106 • 1 do you believe the ownership interests of the assets of the 2 estate belong to? 3 MR. GREEN: Your Honor, I object. This 4 question could not possibly bear upon -- that I can see, 5 whether or not the -- Mr. Andrews' appointment should be 6 vacated. I would object to its relevance. 7 THE COURT: Mr. Jacobs. 8 MR. MUMMA: First of al]_ I would like to 9 continue my objection to Mr. Green even participating in 10 this. 11 MR. JACOBS: I am not sure I understand the 12 question. If it's some kind of abstract legal principle, I 13 don't think it's useful. If it's factual, I don't 14 understand it. 15 THE COURT: Mr. Mumma. 16 MR. MUMMA: Well, I am having trouble, Your 17 Honor. What I am trying to get from Mr. Andrews is how he 18 considers waiting to determine whether or not the executrix 19 should be removed, until he approves a final account or 20 makes a final recommendation, the estate will be completely 21 over. It will be too late. All of the damage will be done. 22 THE COURT: The objection is sustained. 23 BY MR. MUMMA: 24 Q Mr. Andrews, do you believe you have any 25 responsibility to the beneficiaries as an Auditor to protect 107 • 1 their assets? 2 A I have responsibility to the Court and to the 3 parties to move this process. 4 Q To protect the beneficiaries assets? That is 5 my question. 6 MR. GREEN: Your Honor, I would object. 7 First of all, I think the legal proposition is wrong. I 8 don't think that Mr. Andrews does have an obligation to 9 protect the assets of anyone other than the estate and the 10 trust, but moreover, I am not sure that it is relevant to 11 have Mr. Andrews comment on this proceeding as to his 12 understanding of the law, his duties or obligations, 13 certainly not beyond what he's offered already. 14 THE COURT: Mr. Jacobs. 15 MR. JACOBS: No position, Your Honor. 16 THE COURT: All right. Mr. Mumma. 17 MR. MUMMA: Your Honor, I think it is very 18 fundamental. Somebody has to be in charge of this process 19 that's been going on for 22 years. At one point Mr. Andrews 20 said the Court has conveyed that responsibility to him and 21 he is to make all of these decisions. Now he will not agree 22 that he does have that responsibility, an oversight 23 responsibility into the operation of these assets during 24 this hiatus until they are turned over to the beneficiaries, 25 and the Court has taken it upon itself to devoid itself of 108 1 the responsibility by giving it to Mr. Andrews. 2 So they have taken our assets, and they get 3 to run Willy-nilly with them, sell them, do whatever, take 4 the money, and we are going to be out our inheritance -- we 5 are out of our inheritance apparently, and everybody's 6 attitude is, well, we'll get around to it at the end. 7 THE COURT: The objection is sustained. 8 MR. MUMMA: I don't think that is showing 9 fidelity. 10 THE COURT: Showing what? 11 MR. MUMMA: Fidelity. 12 THE COURT: On my part? 13 MR. MUMMA: On your part, on the Court's 14 part, on Mr. Andrews' part. 15 THE COURT: All right. Any other questions 16 for Mr. Andrews? 17 MR. MUMMA: I don't think so. No, sir. 18 THE COURT: Okay. Mr. Green. 19 MR. GREEN: Your Honor, we have no questions 20 at this time. 21 THE COURT: Mr. Jacobs. 22 MR. JACOBS: Yes. Thank you, Your Honor. 23 CROSS EXAMINATION 24 BY MR. JACOBS: 25 Q Good afternoon, Mr. Andrews. 109 • 1 A Good afternoon. 2 Q You would agree with me that this has been a 3 complex and challenging estate to manage? 4 A I would. 5 Q And I appreciate your candid statements that 6 it hasn't been moved as quickly as perhaps you would have 7 hoped. Let me ask you -- I am not questioning your 8 intentions here, but if you do continue as Auditor, do you 9 plan to institute any specific changes in how the estate at 10 this time would be managed in order to accelerate the pace 11 of things? 12 A That's a fair question, and it's hard for me 13 to see how I could make a dramatic change. What I have 14 found is I have had, particularly in the last two years, 15 difficulty reconciling my responsibilities as Chief Public 16 Defender, which have grown and occupied more time than 17 previous, with my private practice responsibilities, 18 certainly including the administration of this case. So 19 it's hard for me to see where the significant amount of 20 ongoing time is to come to grips with the issues that have 21 been presented and move this matter forward in an 22 expeditious fashion. 23 Q Well, I gather that when you agreed to accept 24 the assignment you really had no idea of the time and energy 25 commitment that it turned out to involve? 110 • 1 A That's true. 2 Q And maybe reading between the lines, if your 3 testimony -- I am not trying to put words in your mouth, but 4 it sounds almost as though if the Court decided there ought 5 to be another Auditor that might come as a relief to you? 6 A I don't have a personal stake in this. That 7 is up to the Court. I feel an obligation to the Court when 8 asked to perform a duty to do my best to perform it, but 9 there are limitations as to what I am capable of doing. 10 Q I appreciate that. Let me ask you this. 11 Based on your experience, if His Honor decides in his 12 discretion that a different Auditor ought to be appointed, 13 do you think it would be helpful if the auditor had 14 significant experience in estate administration of large and 15 complex estates? 16 A Certainly, and I think the individual should 17 have ready availability for prolonged periods of time and 18 some staff support. 19 Q And would it be fair to say, again without 20 being critical of any party or anyone else, that there has 21 been some contentiousness in this process? 22 A I don't think there's any contentiousness 23 between me and any participant, but there has been 24 contentiousness amongst the various contestants. 25 Q I noticed that in the executor's original 111 • 1 petition back in January, 2005, they asked for a conference 2 among the parties and counsel to help identify an 3 appropriate individual as Auditor. Do you think it would 4 smooth and accelerate the audit process, if the Court does 5 decide to select a new Auditor, that it be an Auditor that 6 all of the parties up front are comfortable with? 7 MR. GREEN: I would just object to the lack 8 of foundation. It calls for speculation. It's really 9 presuming -- 10 MR. JACOBS: Maybe I can provide a 11 foundation. 12 BY MR. JACOBS: 13 Q What I am asking is not as an abstract 14 principle, but based on the times that you have sat in the 15 conference room with us and you've seen it all work, do you 16 think it would make a significant difference if everybody 17 felt like they bought into who the Auditor was going to be 18 from the beginning? And I mean that as no comment on you 19 whatsoever. 20 A I understand that. My sense is if that made 21 a difference it would be a slight difference. It's the 22 authority of the Court to make the appointment. It is 23 important that the appointed person have resources and time 24 to attend to the responsibilities. 25 Q And would you agree that if the person had 112 1 both the time and resources and were able to address interim 2 issues on a more immediate basis rather than putting 3 everything off to the final hearing, that also might help us 4 move the functioning of the estate? 5 A Well, my sense was the issues that were being 6 raised, it was going to be difficult to address them on an 7 interim basis, but if it were somebody besides me looking at 8 this, they may come to a different conclusion. 9 MR. JACOBS: Thank you. I have no further 10 questions, Your Honor. 11 THE COURT: Okay. Mr. Mumma, do you have any 12 further questions as a result of those questions? 13 MR. MUMMA: I am still wondering what 14 happened to Mr. Green's objection. 15 THE COURT: Mr. -- what? 16 MR. MUMMA: Mr. Green objected to -- 17 THE COURT: I think the question was 18 rephrased and there was no objection when it was rephrased. 19 Do you have any further questions? 20 MR. MUMMA: Well, I would just call -- sure. 21 REDIRECT EXAMINATION 22 BY MR. MUMMA: 23 Q Were you aware that the suggestion that was 24 Mr. Jacob's suggestion to you just now when he asked a 25 question about it is the exact language used in the petition 113 • 1 that the estate filed? 2 A Well, that's part of the question, yeah. I 3 am aware of that. He had that in his question. 4 Q So the estate has petitioned the Court for 5 that procedure where an Auditor would be selected by the 6 parties; is that correct? 7 A You showed me such petition earlier. 8 MR. MUMMA: No other questions. 9 THE COURT: Okay. Mr. Green, anything 10 further of Mr. Andrews? 11 MR. GREEN: Nothing. 12 THE COURT: Okay. Mr. Jacobs. 13 MR. JACOBS: Nothing further. Thank you. 14 THE COURT: You may step down. Well, let me 15 just ask you one question. Would you be more comfortable if 16 I did appoint another auditor in your place? 17 THE WITNESS: I'll tell you, I have 18 significant and substantial personal discomfort with my 19 inability to move this matter forward faster than I have. 20 If somebody else were to move it forward more quickly, I 21 would be comforted. I don't believe I have a personal stake 22 in this at all. At the same time, if it is the Court's 23 desire that I proceed, I will do my darnedest to proceed as 24 quickly as possible. 25 THE COURT: Okay. Thank you. You may step 114 • 1 down. May Mr. Andrews be excused? 2 MR. GREEN: Yes, Your Honor. 3 THE COURT: Mr. Mumma? 4 MR. MUMMA: Yes, Your Honor. 5 MR. JACOBS: Yes, Your Honor. 6 THE COURT: All right. Thank you very much. 7 While Mr. Andrews is here, I just want to say I could not 8 have, in my mind, picked a more fair, knowledgeable lawyer 9 in the County of Cumberland to handle this case, and that is 10 why I chose him. It sounds as if his personal practice and 11 his Public Defender duties, combined with the overwhelming 12 nature of the number of motions and filings in this case, 13 may suggest that it would be better for him to appoint 14 another auditor, but I think if that is the case you are all 15 losing one of the most capable, decent, knowledgeable, 16 conscientious attorneys in the County, and the person that I 17 felt, and still feel, is the best to handle this case, but 18 anyway, thank you very much, Mr. Andrews. Any further 19 evidence to be presented on either of these petitions? 20 MR. MUMMA: No, Your Honor. 21 THE COURT: All right. Mr. Jacobs. 22 MR. JACOBS: No other evidence, Your Honor. 23 THE COURT: All right. Now, Mr. Mumma, you 24 asked for an opportunity to present briefs. I don't mind 25 doing that. It is not going to be an extended period. It 115 • 1 sounds as if everybody is in agreement that if you can all 2 agree on another auditor -- I am certainly not going to 3 interfere with you're doing that. 4 My sense is that it is going to be extremely 5 difficult in this case, and I have always felt that, to get 6 everybody's agreement on anything, and including even who 7 the interested parties are, to make that recommendation, but 8 if you can all agree as to who the interested parties are 9 and what attorney in Cumberland County you want to be 10 appointed auditor, and if you can get that person to agree 11 to it, I am more than happy to do it, but I will give you 12 7 days to do that. I don't think after 7 days, if you 13 haven't reached an agreement, it is going to happen. 14 And as I said, it sounds to me like 15 Mr. Andrews is just overwhelmed with this case, and it is 16 not surprising. So I am perfectly willing to appoint a new 17 auditor, but I will do that -- I will name the person I 18 think would be best unless you can all agree on somebody 19 else. 20 And as far as your briefing schedule, if you 21 want to submit a brief within 14 days with respect to the 22 issue of my recusal, I will be happy to receive briefs. I 23 am not demanding them or asking for them, but I will be glad 24 to wait to consider them. And we will enter this order: 25 AND NOW, this 18th day of August, 2008, upon 116 • 1 consideration of the further motion for recusal of Judge 2 Oler pursuant to Orphans' Court order of October 3, 2007, 3 and the further motion for vacation of appointment of 4 Attorney Andrews as Auditor pursuant to Orphans' Court order 5 of October 3, 2007, and following a hearing, the record is 6 declared -- strike that. 7 There were some exhibits that have not been 8 admitted. Mr. Mumma, you had Exhibits 4, 5, 6, and 7. Are 9 you moving for their admis sion? 10 MR. MUMMA: Yes, Your Honor. I1 THE COURT: Okay. 12 MR. JACOBS: No objection. 13 THE COURT: Mr. Green? 14 MR. GREEN: No objection. 15 THE COURT: All right. I6 MR. MUMMA: I mean it may be a moot point. 17 THE COURT: Well, still, we will make the 18 record at least complete. Mumma Exhibits 4, 5, 6, and 7 are 19 admitted. 20 (Robert M. Mumma, II, Exhibits 4, 5, 6, and 7 21 were admitted into evidenc e.) 22 MR. MUMMA: Along with 1, 2 and 3. 23 THE COURT: They were admitted. 24 MR. MUMMA: Okay. 25 THE COURT: And then we will enter this 117 • 1 order: 2 AND NOW, this 18th day of August, 2008, upon 3 consideration of the Further Motion for Recusal of Judge 4 Oler Pursuant to Orphans' Court Order of October 3, 2007, 5 and the Further Motion for Vacation of Appointment of 6 Attorney Andrews As Auditor Pursuant to Orphans' Court Order 7 of October 3, 2007, and following a hearing, at which the 8 Court indicated that it would appoint an auditor to replace 9 Taylor P. Andrews, Esquire, as auditor, in the event that 10 all interested parties agree upon the individual to be 11 appointed, who shall be an attorney in Cumberland County, 12 Pennsylvania, and at which it indicated that the replacement 13 appointment would be of the Court's choosing in the event 14 that the interested parties were not able to agree within 15 7 days of today's date on such a replacement, the record is 16 declared closed, and the matter is taken under advisement. 17 The Court will receive briefs from any 18 interested party within 14 days of today's date with respect 19 to the issues which he or she perceives to exist with 20 respect to this hearing. 21 (End of order.) 22 THE COURT: Court is adjourned. 23 (The proceedings concluded at 3:37 p.m.) 24 25 118 ERTIFICATION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause, and that this is a correct transcript of same. ichele A. Eline Official Court Reporter The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. 1vo~ . ! Ss~ 2~b~ Date al District 119 INDEX TO WITNESSES FOR PLAINTIFF DIRECT CROSS REDIRECT RECROSS Robert M. Mumma, II By Mr. Sohonage 4 -- 47 -- By Mr. Green -- 30 -- -- FOR THE DEFENDANT DIRECT CROSS REDIRECT RECROSS Joseph O'Connor By Mr. Otto 62 -- -- -- By Mr. Sohonage -- 72 -- -- INDEX TO EXHIBITS FOR THE PLAINTIFF MARKED ADMITTED 1 - 10/3/90 letter 6 54 2 - Share Restrictive Agreement 15 54 2 is~ 1 THE COURT: This is the time and place for a hearing on 2 a Petition for Emergency Relief which I would construe as a 3 petition for a preliminary injunction in the matter of Mumma 4 versus the Estate of Robert M. Mumma. We will let the record 5 indicate that the Defendants in this case are represented by 6 Brady L. Green, Esquire. The Plaintiffs are represented by 7 Kirk S. Sohonage, Esquire, and with him is Daryl E. 8 Christopher, Esquire. 9 I did have an opportunity to meet in chambers with 10 counsel before this proceeding and I am still having a little 11 bit of difficulty understanding exactly what the Plaintiff, 12 Robert M. Mumma, II, is requesting at this time from me in the 13 form of a preliminary injunction, but I gather that may become 14 clearer as we proceed. 15 As I indicated to counsel, one of the esteemed 16 members of the Cumberland County Bar, Henry Stuart died on 17 Sunday, and his funeral services are today at 2:00 o'clock 18 across the street from the court house, and with counsels' 19 indulgence, I will ask to be permitted to attend that funeral, 20 but then we will resume immediately after the funeral. In the 21 meantime we can at least begin this hearing. Mr. Sohonage. 22 MR. SOHONAGE: Thank you, Your Honor. We call 23 Mr. Robert Mumma, II, to the stand. 24 25 3 I5~ 1 ROBERT M. MUMMA, II, 2 having been duly sworn, testified as follows: 3 DIRECT EXAMINATION 4 BY MR. SOHONAGE: 5 Q Good afternoon, Mr. Mumma. 6 A Good afternoon. 7 Q Would you spell your name and give us your address 8 for the record, please. 9 A Robert M. Mumma, M-U-M-M-A, II, I live at 6880 10 Southeast Harbor Circle, Stuart, S-T-U-A-R-T, Florida. 11 Q Are you a resident of the State of Florida?~ 12 A Yes. 13 Q Mr. Mumma, I want to direct your attention to a 14 corporation of which you are involved by the name of High-Spec 15 Corporation, are you familiar with that? 16 A Yes, it is spelled H-I-G-H dash S-P-E-C 17 Incorporated. 18 Q Can you tell this court, Mr. Mumma, a little bit 19 about the formation of that corporation when it came into 20 existence and the purpose of it? 21 A It came into existence in early 1985 with the 22 purpose of investing in highly speculative real estate 23 properties in Florida and Pennsylvania -- well, anywhere, any 24 state. 25 Q Who was initially involved in this corporation when 4 ISYfa 1 it came into existence? 2 A My father and I formed the corporation when we were 3 in Florida for the purpose of purchasing two residential lots 4 down there at a discount from the developer. 5 Q Your father being? 6 A Robert M. Mumma. 7 Q When you formed the corporation, what type of 8 corporation was it, can you tell the Court? 9 A It was agreed it would be a Subchapter S 10 corporation. 11 Q What was the reason you made it a Subchapter S 12 corporation? 13 A The purpose was to buy and sell this -- highly 14 speculative properties, taking a profit on the increase in the 15 value. That would generate a capital gains, which would be 16 passed directly to the shareholders. It saved a step of tax 17 that would have occurred if it was a C corporation. 18 Q So if it was a C corporation, it would have been 19 double taxed basically? 20 A The corporation would have had to pay a capital 21 gains tax and we would have had to pay a dividend tax on the 22 amount of money we received. 23 Q Who were the initial shareholders in this 24 corporation? 25 A My father and myself. 5 155q M 1 Q How were the shares distributed? 2 A $5,000 worth of stock, and we had one dollar par 3 value, so 50,000 shares each to myself and my father. We paid 4 cash for the stock. 5 Q You each paid $5,000 for 5,000 shares? 6 A Yes. 7 Q Were actual shares distributed to your father and 8 you? 9 A Yes, we each received a certificate. The 10 corporation was incorporated by William B. Boswell, who sent 11 away for a corporate kit from CT Corporation but did not 12 request the bylaws, he drew his own set of bylaws to go with 13 the corporate kit. He distributed each of us a certificate for 14 5,000 shares. 15 Q At some point did you confirm with Mr. Boswell via 16 correspondence that he, in fact, had issued these shares to 17 you? 18 A Yes. 19 Q I am going to show you what I have marked as 20 Exhibit A, Plaintiff's Exhibit A. 21 THE COURT: This would be Plaintiff's Exhibit 1. 22 (Plaintiff's Exhibit No. 1 marked for 23 identification.) 24 BY MR. SOHONAGE: 25 Q Mr. Mumma, take a minute or so to review that 6 ~5~ M 1 document. Once you reviewed it let me know. 2 A Correct. 3 THE COURT: Sorry, but I need to recess at this 4 point for the funeral and then we will resume. 5 (Recess.) 6 THE COURT: We will let the record indicate that 7 the Court has reconvened in the case of Robert M. Mumma versus 8 the estate of Robert M. Mumma. Mr. Mumma, you are still under 9 oath. Mr. Sohonage. 10 BY MR. SOH ONAGE: 11 Q Mr. Mumma, I just handed you a document, you 12 reviewed t hat document. There is a signature on the second 13 page of th at document. Do you recognize the name? 14 A William D. Boswell. 15 Q Can you tell the Court who William D. Boswell is, 16 who he was with regard to the involvement in this matter? 17 A Mr. Boswell was the secretary of High-Spec and 18 Lebanon Ro ck, which is what the letter refers to. He was a 19 director o f High-Spec and he incorporated High-Spec and drew 20 the bylaws for High-Spec and issued the stock certificates, 21 kept the s tock flow. 22 Q Was he counsel for High-Spec? 23 A The counsel, yes. 24 Q He had been your father's counsel for many years, 25 correct? 15~1A A Since 1961. 2 Q This letter Mr. Boswell sent to you in October of 3 1990 indicates that he had given you and your father both 5,000 4 shares of this High-Spec stock, does it not? 5 A That is correct. 6 MR. GREEN: Objection, and I object on the grounds 7 that it is hearsay to the extent that it is -- 8 THE COURT: Is this something that is in dispute as 9 to how many shares that each had or can that be stipulated to? 10 MR. GREEN: We would stipulate there was a 50 11 percent interest in each of the shareholders. 12 THE COURT: All right. Does that satisfy your 13 purposes, Mr. Sohonage? 14 MR. SOHONAGE: Our intent was to show that there 15 were 5,000 shares given to each of the parties. 16 THE COURT: That is the stipulation? 17 MR. GREEN: Yes, Your Honor. 18 THE COURT: All right. 19 BY MR. SOHONAGE: 2p Q Mr. Mumma, let's talk about this 50 percent share 21 that you had, the 50 percent share that your father had. Upon 22 his death -- first of all, can you tell us when your father 23 died? 2Q A April 12, 1986. 25 Q At the time of his death was High-Spec in 8 i~~ M existence? A Yes. Q At that time who were the shareholders of High-Spec, the day before he died who were the shareholders of High-Spec? A He had 5,000 shares and I had 5,000 shares, we were the only shareholders. Q Leading up to the formation of High-Spec, had you and your father come to some understanding or agreement about how these shares were to be transferred? A Yes. Q Who was involved in that agreement? A Well, it was my father and myself prior to getting into the -- being incorporated, we decided, one, it would be a Subchapter S corporation. MR. GREEN: Your Honor,~I would object to testimony from Mr. Mumma about conversations he had with his father as barred by the Deadman's Act. This testimony is ultimately being offered to show that the estate does not own something, therefore, the testimony would be barred by the Deadman's statute in our view. THE COURT: Mr. Sohonage. MR. SOHONAGE: I will lay a bit more foundation, Your Honor. THE COURT: You can try, but that is kind of a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 9 15°~a basic objection to the -- 2 MR. SOHONAGE: Understood. Where I intend to go 3 with this, Your Honor -- 4 THE COURT: Well, I know where you intend to go. 5 It is just a question of whether it is a permissible question 6 under the Deadman's Act. 7 BY MR. SOHONAGE: 8 Q At any point prior to today's litigation, have you 9 been involved in litigation with regard to High-Spec? 10 A I have. 11 Q Where has that been? 12 A Here in front of Judge Hess and in Florida in front 13 of various judges. 14 Q In the course of those matters, have you ever had 15 an opportunity or been cross-examined or questioned on issues 16 that dealt with matters preceding the death of your father with 17 regard to High-Spec? 18 A I have. 19 MR. SOHONAGE: Your Honor, at this point it is our 20 position that there is a waiver of the Deadman's Statute. If 21 there has been prior cross-examination of Mr. Mumma with regard 22 to matters preceding the death of his father with regard to 23 High-Spec, it is our position that they would waive the 24 opportunity to raise that issue at this time. 25 MR. GREEN: Your Honor, I don't know whether or not 10 ~`~Oa there has been such examination and what topics it covered, but 2 certainly the proffer that counsel has made I don't think would 3 be sufficient to show that -- and Mr. Mumma's uncorroborated 4 testimony wouldn't be sufficient to overcome the Deadman's Act. 5 There is no showing at this point as to who asked the 6 questions, what the scope of the testimony might have been or 7 how it relates to these issues. 8 THE COURT: Do you want to try to lay more of a 9 foundation. 10 MR. SOHONAGE: Yes, Your Honor. 11 BY MR. SOHONAGE: 12 Q Specifically, let's talk about the action in 13 Florida. There was a case brought in Florida with regard to 14 High-Spec, was there not? 15 A There was. 16 Q Briefly, can you tell us what the issues of that 17 case involved? 18 A High-Spec, the corporation, owned a lot at Sale 19 Fish Point, and they owned two lots at one time. They sold one 2.0 in 1987 I believe, and these lots had a restriction on them 21 that they could be re-claimed by the developer if you didn't 22 build a house on them in a certain amount of time. In order to 23 get the house built within those constraints, Mr. Boswell 24 agreed that I should buy the lot and construct a house on it. 25 He on behalf of High -- and High-Spec sold the lot to me. 1 ~ ~~1~ 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. GREEN: Your Honor, I would object to testimony about what Mr. Boswell said to the extent it is offered for it's truth as hearsay. THE COURT: The objection is overruled. Go ahead, Mr. Sohonage. BY MR. SOHONAGE: Q You can continue, Mr. Mumma. A After that there became a question as to whether Mr. Boswell had gotten the right amount of money for the lot that was sold, and that is what prompted the lawsuit in Florida; but instead of suing Mr. Boswell, they elected to sue me. Q You say they elected, who elected -- A The estate. Q The estate did? A Yes, acting on behalf of my father, the shares were in his name. THE COURT: This case in Florida, who was the Plaintiff and who was the Defendant? A The Plaintiff was the Estate of Robert Mumma, Kim and Lisa Mumma -- or Kim Mumma and Lisa Morgan individually and as -- excuse me, as executrixes and derivatively as a shareholder of High-Spec. THE COURT: All right. Who was the Defendant? A I was and High-Spec. 12 \I.oZE, THE COURT: Just tell me again what the claim was 2 against you? 3 A The complaint was that I did not -- that Mr. 4 Boswell should have sold the lot for more money.' I didn't pay 5 enough money, but I paid what High-Spec agreed to have me pay. 6 THE COURT: Okay. Go ahead, Mr. Sohonage. 7 BY MR. SOHONAGE: 8 Q In essence, it was the shareholders who directed 9 the lawsuit? 10 A In essence, yes. 11 Q At that time there was counsel for the Plaintiffs, 12 obviously, is that correct? 13 A Yes, it was a law firm out of North Palm Beach, 14 Florida. 15 Q Eventually this matter proceed to trial? 16 A Correct. 17 Q Who was counsel for the Plaintiffs at that time? 18 A Jordan Fields. lg Q He is an attorney out in Florida? 20 A Yes, Stuart, Florida. 21 Q During the testimony at that trial, did Mr. Fields 22 have an opportunity to cross-examine you with regard to 23 High-Spec? 24 MR. GREEN: Objection to the form of the question, 25 I think that calls for a conclusion that Mr. Mumma is not able 13 l~~ to make as what constitutes an opportunity. 2 MR. SOHONAGE: I will rephrase the question. 3 THE COURT: All right. 4 BY MR. SOHONAGE: 5 Q Did you testify at that trial, Mr. Mumma? 6 A I did. 7 Q Did Mr. Jordan Fields ask you any questions? 8 A Yes, he was -- they were making the claim that 9 High-Spec had never been incorporated and was a partnership and 10 operated as a partnership. 11 Q Were there questions regarding the financing 12 arrangements to form High-Spec? 13 A There were, and at issue was how much money my 14 father put in, how much money I put in, how much money was 15 borrowed, and how much money was borrowed by Kim Company. 16 Q All these issues dealt with matters that occurred 17 before your father's death I assume, correct? 18 A Well, yeah, because we both signed the loan -- 19 maybe not the Kim Company loan documents, but we both 20 guaranteed the loan documents and signed all of the documents 21 at Dauphin Deposit Bank. 22 MR. SOHONAGE: At this point; again, I would submit 23 that they have waived -- there is an opportunity to 24 cross-examination upon matters presiding Mr. Mumma, Sr.'s, 25 death, issues involving High-Spec, issues involving the 14 iw~a financing, the formation of the corporation itself, and we 2 believe there has been a waving within that statute under the 3 rules, therefore, I believe he is permitted to testify in this 4 matter with regard to the shared restrictive agreement, Your. 5 Honor. 6 THE COURT: If that is the basis of your question 7 as you have established it here, the objection is sustained. 8 BY MR. SOHONAGE: 9 Q At some point did you have an opportunity to review 10 a shared restrictive agreement for High-Spec, Incorporated? 11 A Yes, I signed the shared restrictive agreement. 12 Q Did you ever have an opportunity to witness whether 13 or not your father signed this agreement? 14 A He did. 15 Q Did you see the copy signed by you and your father? 16 A I think we signed it simultaneously. 17 Q I am going to show you what I will have marked as 18 Exhibit 2, this is attached to the complaint as a copy of the 19 shared restrictive agreement. 20 (Plaintiff's Exhibit No. 2 marked for 21 identification.) 22 BY MR. SOHONAGE: 23 Q Take a look at that document and let me know once 24 you reviewed it, please. 25 A That is the agreement that we had drafted that we 15 ~~5 signed. 2 Q Who drafted that agreement? 3 A Boswell. 4 Q That is the agreement you and your father both 5 signed? 6 A Yes. 7 Q Do you know where the signed copy is, Mr. Mumma? 8 A At this time, no. 9 Q Do you know what happened to it after you and your 10 father both signed it? 11 A Someone removed it from the safety deposit box that 12 was filed i n his office -- 13 MR. GREEN: Objection, this testimony is hearsay 14 about what happened to the document, and there is also 15 absolutely no foundation for Mr. Mumma to testify about what 16 happened to the document that has been submitted so far. 17 THE COURT: Mr. Sohonage, do you want to try to lay 18 a foundation for that answer before it is included in the 19 record? 20 MR. SOHONAGE: Yes, sir. 21 BY MR. SOHONAGE: 22 Q Who took the document upon your father and you 23 signing it, do you recall? 24 A The stock certificates and this document were kept 25 together.. 16 ~ "'~ ~ Q Let me ask you this, did you take it -- 2 A No. 3 Q -- did you have the original -- 4 A No, neither did Boswell to the best of my 5 knowledge. 6 THE COURT: Neither what? 7 A Did Boswell. He may have had copies of everything, 8 but the stock certificates and this document were, I believe, 9 put in the safety deposit box =- 10 MR. GREEN: Objection, Your Honor. 11 THE COURT: The objection is sustained until we 12 find out why you are saying that, what basis you have for 13 saying that. I think Mr. Sohonage is trying to follow the 14 paper trail as to what you actually saw yourself. You signed 15 the document, your father signed it, according to your 16 testimony, then what happened to it that you saw? 17 A I saw it put in a safe deposit box. 18 BY MR. SOHONAGE: lg Q This is a safety deposit box owned by whom? 20 A Owned by my father and my self, it was a joint box 21 at the Dauphin Deposit Bank. 22 Q That is located here in Cumberland County? 23 A This was at the-main branch, I think it is 213 24 Market Street in Harrisburg. 25 Q Was this a box that solely kept this document or 17 i~~ were there other documents in this box to your knowledge? 2 A We kept all of our corporate documents in that box. 3 The box was approximately 18 inches high and maybe 18 inches 4 wide and 2 foot long. It was full of corporate documents. 5 Q These were some of the documents -- 6 A Yes. 7 Q -- kept in there? Specifically this shared 8 restrictive agreement, Exhibit 2, was kept in this box to your 9 knowledge? 10 A Yes. 11 Q At some point did you have occasion to enter this 12 box after your father's death as a co-owner of the box to get 13 this document? 14 A April I think it was 23rd or 24th of 1986, 15 approximately two weeks after my father died, I went down with 16 my mother, they were looking -- they told me they couldn't find 17 the will or a copy of the will, they were going to do a will 18 search of the box. I went down to the Dauphin Deposit Bank, 19 opened the box with my key, and a guy by the name of Cromwell, 20 who was the branch manager, went through the box looking for a 21 will. He did not for some reason make an inventory, but he did 22 go through the box searching for a will. 23 Q So at that time no inventory was made? 24 A No, but the box was full of documents and we 25 weren't allowed to touch them. I wasn't allowed to touch any 18 I~~ of the documents or even make notes as to what he saw in the 2 box. 3 Q So you and your mother are there, you both 4 basically stand back and let Mr. Cromwell go through, he was 5 looking for a will, is that correct? 6 A That is correct. 7 Q He was never specifically to your knowledge asked 8 to find this shareholder's agreement? 9 A No, no. It wasn't... 10 Q That is not what your purpose is in being there on 11 that day? 12 A Right, the whole reason was he was -- my father was 13 engaged with Morgan Lewis in writing a new will and they were 14 taking the position that he had actually signed this new will 15 and they wanted to know where it was and they couldn't find the 16 signed copy of the new will so they wanted to look into this 17 safety deposit box. As it turns out later, that was just a 18 rouse. 19 MR. GREEN: I would move to strike the 20 non-responsive portion of the testimony, which would be 21 everything after the first sentence. 22 THE COURT: Mr. Sohonage. 23 MR. SOHONAGE: I believe it was responsive to my 24 question, Your Honor, but I will allow the Court to make a 25 decision on that. 19 1~9 THE COURT: The last part of the answer is 2 stricken, but I don't want to prohibit you from asking 3 questions that would substantiate the statement, at this point 4 there is no background for it. 5 MR. SOHONAGE: Very well, sir, thank you. 6 BY MR. SOHONAGE: 7 Q Mr. Mumma, you indicated when you got there you 8 opened it with your key. Can you talk to us a little bit about 9 how this box was open, how many keys were out there, how you 10 got in, explain that to us, please? 11 A After we opened this box in the '70s. 12 Q After you and your father had bought the box, 13 right, is that what you mean by opened the box -- 14 A My father and grandfather had this box. 15 Q Okay. 16 A 1972 or '3, we went down to the safety -- my father 17 and I went down to the bank and we took my assets, individual 18 assets, out of this box, like my stock certificates in various 19 corporations, put them in my grandfather's old box, the one 20 that he had by himself. Then into this box we put all of the 21 records for joint -- for companies that were owned by either me 22 and my sisters and myself and my father, so that my father and 23 I would have immediate access to those documents if something 24 should happen to either one of us or we needed it, one of the 25 two of us could get to the box to get the stuff out. 20 i~~ Q Each of you had a key, that you could remember -- 2 A My recollection is I know I had a key because that 3 is where I got the key to go in. They couldn't find a key for 4 my father, which is why they had me, told me they wanted me to 5 go with them -- 6 MR. GREEN: This is hearsay and nonresponsive to 7 the question as to whether someone else had a key. The 8 question was did his father have a key. 9 THE COURT: I will overrule the objection. 10 MR. SOHONAGE: Thank you, sir. 11 THE COURT: Mr. Sohonage. 12 BY MR. SOHONAGE: 13 Q So your belief, your father had a key, although 14 they didn't find it, and you definitely had a key? 15 A I definitely had a key. 16 Q When you would go in to open the box on occasion by 17 yourself, you would have a key, how would you get into that 18 box? Could you walk into the room by yourself and turn the 19 key? 20 MR. GREEN: Your Honor, I would object to the 21 relevance of this, this is very historical; also, there is no 22 foundation that Mr. Mumma was ever in the box by himself. 23 THE COURT: How is this going to help me decide 24 whether a preliminary injunction should be issued? 25 MR. SOHONAGE: Your Honor, it goes to the fact that ~, i~~o when he is there in April of 1986, this box is full. He goes 2 in there later on to get this agreement, the box is no longer 3 full, in fact, there is nothing in this box. I was just laying 4 out the procedure by which somebody could enter this box. 5 THE COURT: Somebody could enter it without a key 6 you mean? 7 MR. SOHONAGE: That is what I was trying to lay. 8 My understanding is someone cannot enter without a key; Mr. 9 Mumma could enter it, but only in conjunction with somebody 10 from the bank, that is what I was trying to layout for the 11 record, sir. I will try to streamline the questions. 12 THE COURT: He needed somebody from the bank 13 because there had just been a death, one of the owners of the 14 box, wasn't that the -- 15 MR. SOHONAGE: That is what he has testified up to 16 this point, but he went in subsequently, and I am trying to 17 layout how somebody could get into this box. 18 THE COURT: He went in subsequently before an 19 inventory was .done? 20 MR. SOHONAGE: Yes. 21 THE COURT: Go ahead and ask the question. 22 BY MR. SOHONAGE: 23 Q At some point after this April time when you and 24 your mother went in, did you go in there at a later time to 25 look at the box? =z ~~ A Yes, I think it was 1989. It is one of the things 2 that prompted my letter of request from Boswell, I went to the 3 Dauphin Deposit Bank, get into the box with my key and I was 4 told -- well, I gave them -- they pulled the card out, stamped 5 it, took my key, went in and we opened the door to the box. 6 Q That is what I was trying to get to before, you 7 said we went in. In order to get that box open, you had to go 8 in with somebody from the bank? 9 A There is two keys to every box, the bank's key and 10 my key, and you can't open the door without turning both locks. 11 MR. GREEN: Your Honor, I would object to this 12 testimony. Again, it is hearsay, other than simply based on 13 Mr. Mumma's experience, but it certainly isn't conclusive of 14 how one can get into a box. 15 THE COURT: I think almost everybody here knows-how 16 to get into a safe deposit box, the bank officer has a key, the 17 person trying to get in the box has a key, so I will overrule 18 the objection. 19 MR. SOHONAGE: Thank you. 2p THE COURT: But had in 1989 when you went into the 21 box, had an inventory already been done of these content s -- 22 A There was never an inventory of this box. 23 THE COURT: Never? 24 A Never. When I went in in 1989, the box was -- it 25 was like I was bolted to the -- in there. We couldn't -- two Zs ~~~A of us -- I could barely budge it myself, and there was 2 something very, very heavy in it, I don't know what it was. 3 The girl said, well, we can't get that out, I will have to get 4 somebody to help us. Then she goes back out and looks at the 5 card and sees that the box is no longer registered in my name, 6 it is now registered in the Keystone Bank. 7 MR. GREEN: Your Honor, I object, this is all 8 hearsay as to what the card says at this point, and I don't 9 think that is proper testimony and I move to strike that. 10 THE COURT: I will sustain the objection. 11 MR. SOHONAGE: This is the effect -- 12 THE COURT: Unfortunately, we are going to run out 13 of time in just a few minutes and I need to hear what harm 14 there is going to be to Mr. Mumma if this injunction is not 15 issued and what his contentions are about the ownership of this 16 company. 17 MR. SOHONAGE: Very well, sir, I will streamline, I 18 apologize. 19 BY MR. SOHONAGE: 2p Q Mr. Mumma, expedite this, you don't have a copy of 21 the signed agreement, you believed it was in the box, it is not 22 .there and you don't have a copy and you don't know where it is 23 at this point, correct? 24 A I do not have a copy. 25 Q You are currently asking the Court at this point to 29 I~ 14 enjoin the trustees, the executrixes of the estate, from taking 2 any action with regard to these shares of High-Spec they submit 3 belong to the estate, are you not? 4 A I am. 5 Q If the Court denies that right, will you suffer any 6 harm; and if you will, can you tell the Court what type of harm 7 that would be? 8 A Well, if that -- there are two types of harm: One, 9 it is financial in that they are going to -- most of the money 10 put in to form-this company was my money, my father didn't even 11 put up his $5,000 to buy his stock. 12 MR. GREEN: Your Honor, I object. This is now 13 contrary to what Mr. Mumma testified earlier to what Mr. 14 Boswell said. ? thought we had stipulated that it was not an 15 issue, that the contributions were even, now Mr. Mumma is 16 claiming that that didn't, in fact, happen. 17 THE COURT: Mr. Sohonage. 18 MR. SOHONAGE: I didn't believe that to be our 19 stipulation, I thought our stipulation was each of them were 20 issued 5,000 shares. 21 THE COURT: Regardless of who put the money in, 22 what is the damage that is going to be done at this point? 23 BY MR. SOHONAGE: 2q Q What type of damage will you suffer if they are 25 permitted to transfer these assets or take any action with ~~ 1`15a regard to these assets? 2 A I am going to lose my money and I am going to lose 3 my company and it won't be coming back. That is just that 4 simple because this trust that they claim they have transferred 5 this to is not a legal owner of a Subchapter S corporation, so 6 it will lose its Subchapter S status, which immediately reverts 7 it to a C corp, and that was never agreed upon when we got into 8 this deal, that would be irrevocable, that would be -- I 9 couldn 't overcome that, I am going to have to pay twice the 10 tax. Second of all, the assets -- or the company that I should 11 be owning, I am going to lose. 12 Q If the Court again does not decide to enjoin them 13 acting with regard to these shares, will you suffer a harm that 14 is greater than anything they can suffer? 15 A Well, they are pretending that they are 16 shareholders or that this trust is a shareholder and no shares 17 have ever been issued to the trust, it is just a fraud. lg Q If they are allowed -- 19 MR. GREEN: Your Honor, I object this is hearsay 20 and it lacks foundation in terms of the capacities in which 21 Mrs. Mumma and Mrs. Morgan are acting, what their stock was 22 issued and what is a fraud. I understand this is Mr. Mumma's 23 view, but there is absolutely no evidence in this testimony 24 that I can discern or any foundation for it. 25 THE COURT: The objection is it is a legal 29 1~WG 1 conclusion? 2 MR. GREEN: Yes, and also as to foundation. 3 THE COURT: Well, it is a legal conclusion, so the 4 objection is sustained. 5 BY MR. SOHONAGE: 6 Q If the Court does not allow them to act with regard 7 to these shares, how will that effect you and to what position 8 will that return you with regard to High-Spec? 9 A These shares should be purchased by the 10 corporation. That is what the intention was, that is what the 11 agreement was. They would get book value at the time of my 12 father's death for the shares. That is what they -- they 13 listed these shares in the original inventory at $5,000 what. 14 they claim that he put in -- 15 MR. GREEN: Your Honor, I apologize, but I must 16 object. This is all hearsay and without foundation. It is 17 also intermixing of legal conclusions to what the impact of 18 this purported agreement might be. 19 THE COURT: .The objection is noted but overruled. 20 MR. SOHONAGE: Thank you. 21 BY MR. SOHONAGE: 22 Q Your understanding of this was that these shares 23 were always to come back either to your father or you, is that 24 correct? 25 A That is correct, it was a father/son deal, nobody 27 ~`1`la 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 else was to be involved in it, just the two of us. Q If the Court grants our relief you are simply asking that it be returned back or the shares would come back to you? MR. GREEN: Your Honor, again, I apologize, I have trouble getting up quickly enough. I asked that the last testimony be stricken, again, we are now violating the Deadman's Act about what the intention was with respect to this corporation. THE COURT: I am assuming the intention is reflected in this allegedly signed agreement. So I will construe the answer is relating to that. MR. GREEN: Thank you. MR. SOHONAGE: Thank you. BY MR. SOHON AGE: Q If our relief is not granted, Mr. Mumma, what harm will the est ate suffer? A None. Q In fact, they will make a profit? A They will make a big profit if that -- nobody contributed any money to it, they are not entitled to it. Q You are a beneficiary of the estate? A Correct. Q But there are other beneficiaries as well, correct? A Correct. I have three sisters that are 28 i~~ beneficiaries, only one of which is claiming any interest in 2 this. 3 Q At this point these assets are now in what is 4 called the residuary trust? 5 A My understanding from the accounting that was filed 6 is that these assets were transferred 2 years ago to a trust, 7 and I guess that is the residuary trust. But I have been 8 asking for evidence that the estate was a shareholder, and they 9 have repeatedly told the Courts in Florida that the estate was 10 the shareholder even two months before the accounting came out 11 showing the residuary trust was a shareholder, they were 12 testifying in Florida that it was the estate. So otherwise I 13 would have moved to block this earlier. 14 Nobody has ever issued them a certificate. I know 15 that I would -- my signature would be required on it. 16 Q Pursuant to the restrictive agreement you would 17 have had to sign something allowing them to transfer, is that 18 what you are telling us? 19 A Well, pursuant to that, not only that, but somebody 20 has got to sign the stock certificate as an officer of the 21 corporation, and it was just Boswell, the secretary and myself. 22 Q Boswell is deceased now, right? 23 A Yes, and they are claiming that this certificate 24 was issued, I think either shortly after his death or shortly 25 before it, at which time he was incapable of signing it. I'79a 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. SOHONAGE: That is all I have at this point, Your Honor. THE COURT: Okay. Mr. Green. CROSS-EXAMINATION BY MR. GREEN: Q Mr. Mumma, when did you first obtain the copy of the share restrictive agreement which is Plaintiff's Exhibit 2? A I would say three years -- well, let me see. I would say three years ago. Q Three years ago; and from whom, sir? A Maybe it is 4 years ago. I got it from Boswell. Q William Boswell or Jeff Boswell? A William Boswell gave me his -- Jeffrey may have actually delivered them, but I got them through Bill. I got his High-Spec files. Q Mr. Boswell's High-Spec files? A Yes. Q You had last seen the draft agreement that is Exhibit P-2 in 1985, is that what you said? A This, yes. There was another agreement that became the Lebanon Rock agreement, they crossed out High-Spec and wrote Lebanon Rock that I saw in 19 -- early, it was either late 1985 or early 1986. It was the same agreement. But the High-Spec agreement we had already signed was in the safe or 3o i~ the bank and they wanted a new agreement. High-Spec was going 2 to buy a qua rry, at the last minute they decided to form 3 Lebanon Rock to buy the quarry in Lebanon County. 4 Q Before you got this agreement, this document from 5 Mr. Boswell, when was the last time that you had seen the 6 document? 7 A I am saying, the end of 1985 or early 1986 when 8 this agreeme nt was taken and it was altered to say Lebanon 9 Rock. 10 Q When is the last time that you saw what you claim 11 to have been a signed version of what is now P-2? 12 A When we put it in the safe. 13 Q When was that? 14 A It would have been in the summer or early spring of 15 '85 when Bos well prepared it. 16 Q Summer, early spring, what time in the summer? 17 A I can't recall. It would have been maybe July. lg Q No later than July? 19 A I don't know. I can't recall, 1985 is 20 years 20 ago. 21 Q Where were you when you signed the agreement? 22 A It was either my father's office or at the bank. 23 Q How many copies did you sign? 24 A One. 25 Q Just one, and what was done with that at the end of 31 I $la session when you signed it? 2 A It was put with the two stock certificates. 3 Q Those were put into the box at that time? 4 A Yes. 5 Q As best you can recall this was sometime in the 6 spring or summer of 1985? 7 A Yes, because we did the financing at Dauphin 8 Deposit to buy the lots prior to -- I think we bought the lots 9 in late August, the financing was already in place because we 10 had the money, the ..corporation was formed, the stock was 11 issued, everything. 12 Q Your testimony is you have not seen the original of 13 that document since 1985, is that correct? 14 A The original of this document? 15 Q Yes, sir, P-2. 16 A That is correct. 1~ Q You have not seen nor have any testimony you can 18 give as to what the provisions of that agreement were dates to 19 1985, correct? 20 A No, here are the provisions, this is a copy of the 21 original. 22 Q How do you know that? 23 A Because it came from Boswell's file. 24 Q How does the fact that it came from Mr. Boswells 25 file in any way substantiate that it is the same as the ,z 187 Q What was the date, the same date? 2 A It would have been the same date. I mean, my 3 father would have signed as president of High-Spec and each of 4 us would have signed as a shareholder. 5 Q You are saying your father would have or your 6 father did? 7 A Did. 8 Q Do you think you might have a shareholders' meeting 9 at the bank? 10 A Well, I think that if we are the sole shareholders 11 and we -- it would be by consent -- we could have a meeting by 12 consent without having to have a... 13 Q You don't have any personal knowledge as to where 14 Mr. Boswell got P-2 before he sent it to you, do you? 15 A Where he got it? 16 Q Yes, any personal knowledge as to where he obtained 17 this document? 18 A He told me he drafted it. 19 MR. GREEN: I move to strike that as hearsay. The 20 question was does he have any personal knowledge. 21 MR. SOHONAGE: He offered a response to the 22 question, where did he get it. 23 THE COURT: The objection is sustained. Do you 24 have any personal knowledge of where he got it, in other words, 25 do you know for a fact that he prepared it himself? 3< is~ A I was in his office when he prepared it, but when 2 he handed i t to me he told me he drafted it. 3 MR. GREEN: Move to strike as hearsay. 4 THE COURT: I think it is responsive to the 5 question, I will overrule the objection. 6 BY MR. GREE N: 7 Q Mr. Mumma, there is some underlining and what 8 appears to be pencil marks on Exhibit P-2, where did they come 9 f rom? 10 A From me. 11 Q You put them on since you were given it, whenever 12 Mr. Boswell gave it to you? 13 A Yes. 14 Q Your testimony otherwise is this document is 15 exactly the same as when you signed, and you can tell that from 16 what you remember from 1985 and seeing this document 4 years 17 ago? 18 MR. SOHONAGE: Objection, asked and answered. 19 THE COURT: The objection is overruled. 20 A Yes. 21 BY MR. GREE N: 22 Q Identical? 23 A Yes. 24 Q This document, according to your testimony, was 25 placed in a safe deposit box at Dauphin Deposit, correct? 35 I $~A not correct? 2 A That is correct. 3 Q Your belief is that it was your mother or your 4 sister or someone acting on their behalf who improperly went 5 into the safety deposit box, correct? 6 A (Witness nods head affirmatively.) 7 MR. SOHONAGE: I object, Your Honor. His response 8 is going to have some impact on the case that exists and I 9 object again on relevance grounds, he is asking to offer some 10 conclusion that possibly is going to be used as a legal 11 conclusion in another matter. I will object to relevance when 12 we go into this question and ask that it be precluded. 13 THE COURT: The objection is overruled. 14 A My position is that either the bank -- someone from 15 the bank entered the box before it was returned to the vault, 16 its cubbyhole and vault; or if it was returned there full, 17 somebody went into the box afterwards and prior to I think the 18 date is November 2, 1989, and took the contents of the box. At 19 that time, it is clear, my mother was in the box on November 2, 20 1989, and she claims there was nothing in the box and that she 21 then closed the box; but she was not a signatory on the box, 22 she had no right to be in the box. 23 BY MR. GREEN: 2q Q Are you finished? 25 A Well, over the course of time and through the 3, 18~ deposition of Mr. Landry (phonetic), I am convinced now that 2 the box was never put back, the contents in the box were never 3 put back into the cubbyhole at the bank because Mr. Landry has 4 been reviewing records that came out of the box in 1988 and 5 1989. 6 Q So you think the box never went back in after the 7 bank did the will search? 8 A It may have gone back in but it was empty when it 9 got there. 10 Q Did your mother leave with you, by the way, that 11 day? ' 12 A I do not recall whether we drove together or not. 13 I don't -- for some reason I don't think she did drive with me. 14 Q Are you contending that the original that you say 15 you signed, the P-2, was in that box? 16 A Yes. 17 Q That is where it was? 18 A Yes. lg Q Your petition says it may have been in the box, do 20 you recall that petition in this case? 21 A I think it was in that box. 22 Q You think it was in the box? 23 A Yes. 24 Q And you think it was taken out in 1986? 25 A No -- yes, it would have been April -- I think it 38 I ""G was April of 1986, yes. 2 Q You testified earlier that there had never been an 3 inventory of that box, correct? 4 A That is correct. 5 Q Isn't it true you think there was an inventory but 6 the Department of Revenue is hiding it from you? 7 MR. SOHONAGE: Objection, that calls for 8 speculation on his part, totally irrelevant to the injunction. 9 THE COURT: The objection is overruled. 10 A There was no inventory taken of the box prior to 11 the time that my mother went in when it was empty. 12 BY MR. GREEN: 13 Q Have you taken the position or made the claim that 14 there is an inventory but the Department of Revenue wouldn't 15 let you see it? 16 MR. SOHONAGE: I ask that question be clarified to 17 take the position when, where, what action. I need 18 clarification with regard to that, Your Honor. lg THE COURT: You may follow up on it with your own 20 redirect. 21 A That is -- answers my position that there were 22 apparently two safety deposit box inventories, I was told there 23 were two. I went over to see Richard Seneca, who runs that 24 department at the Inheritance Tax Department at the Department 25 of Revenue. When I asked him about the safety deposit box, 39 I g`la complaining that somebody had been in there, he looked it up on 2 their computer and he said we have records, the stuff is all 3 upstairs. Apparently, they got a whole stack of documents 4 upstairs and that this inventory, the inventories of the safety 5 deposit box, are up there. 6 He called up and I think he talked to a guy by the 7 name of John Murphy, who then immediately comes downstairs and 8 almost threatens me physically about you shouldn't be asking 9 about this, we are not going to let you see the inventory of 10 your box and you need to leave here right now period. So, yes, 11 that is -- they wouldn't let me see it. 12 THE COURT: They what? 13 A Would not allow me to see it. I haven't seen it to 14 this day. 15 BY MR. GREEN: 16 Q Mr. Mumma, your action against Dauphin Deposit has 17 been pending since 1994, is that correct? 18 A That is correct. Well, yes, I guess that is 19 correct. 20 Q Mr. Mumma, you said, if I heard you correctly, that 21 you have asked Mrs. Morgan or your mother and sister to honor 22 the shareholders agreement, did you say that or have you? 23 A Yes. 24 Q You have? 25 A Yes. 40 l~$o, price, you have to close the deal I think it was the 29th day 2 of some month. But the letter was mailed or dated three days 3 after that drop-dead date. 4 So Boswell sends me a letter with a copy of this 5 that there is no way we can comply with this because you can't 6 do what we are doing. So we took the position, they can't 7 transfer this stock to anybody, it is going to just be where it 8 is, wherever that is, and they are not officers nor are they 9 directors, so we will continue to run the company the way we 10 see fit. 11 Q So you made the request that they honor this 12 agreement without having either the copy or the original, 13 correct? 14 A Boswell made the request, yes, for me, yes. 15 Q This time you had neither a copy nor an original of 16 the document that you are talking about? 17 A I thought I had an original, I thought it was in my 18 safety deposit box, but I couldn't get to it because they 19 sealed the box until they did an inventory. 20 Q The Florida action was filed in 1989, isn't that 21 correct? 22 A Oh, no, I think it was earlier than that. 23 Q Earlier? 24 A I think they filed a motion for a restraining order 25 in '88. 42 l g~q Q So it has been pending for -- 2 A Well, I am not sure because then I think at one 3 time they maybe dropped the one and started another one or 4 something like that, so I am not sure specifically for the 5 action that is ongoing as we speak. 6 Q There has been litigation in Florida about 7 High-Spec between you, your mother and sister since 1989 at 8 least, fair to say? 9 A That is fair to say. 10 Q The complaint that was filed down there alleged 11 among other -- it asked for dissolution of the corporation or 12 appointment of a receiver, correct? 13 A I don't know about a receiver. 14 Q It asked for dissolution? 15 A They did ask for dissolution, yeah. 16 Q It also sought damages for you? 17 A It did. 18 Q It alleged that you misused or unauthorizedly used 19 corporate property, is that what the allegation was? 20 A That I converted corporate property. 21 Q It was a trial in Florida? 22 A It was a trial in Florida, but there is a series of 23 documents, in fact, all of the original High-Spec documents, 24 Scott Morgan picked up and took and we haven't seen them since. 25 MR. GREEN: Your Honor, I object to this as not 4 3 ~, I~a responsive. 2 MR. SOHONAGE: He asked the question. He is asking 3 hearsay after hearsay and I submit that Mr. Mumma should be 4 permitted to answer questions. I mean, he is going through 5 documents from Florida and telling Mr. Mumma basically what 6 they said. If that is not hearsay, I don't know what is. 7 THE, COURT: The question was, was there a trial in 8 Florida, and I think the answer is simply, yes, there was a 9 trial in Florida, that would be the answer to the question. 10 What is the next question? 11 BY MR. GREEN: 12 Q A judgment was entered, correct? 13 A I guess that is correct. 14 Q That awarded dissolution of the corporation, 15 correct? 16 A I think that is correct. 17 Q It also awarded money damages against you, correct? 18 A It did. lg Q One of the issues in the Florida litigation was the 20 ownership of the equity in High-Spec, isn't that correct? 21 A I would say that that was the main issue. They 22 were claiming it was a partnership. We were claiming it was a 23 stock company. 24 Q The shareholders agreement you would characterize 25 that, just what you say that you signed in 1985, you would say 94 ~~11a that that is a document that provided for how the equity 2 interests in the company were to be handled, among other 3 things, th e death of one of the shareholders, correct? 4 A Yes. 5 Q You believe you suffered substantial harm by not 6 having the shareholders agreement, the original in the Florida 7 litigation , correct? 8 A Yes. 9 Q When did you first file any paper in the Florida 10 proceeding or did your lawyers first file any paper in the 11 Florida pr oceeding raising or bringing to the attention of the 12 Court the alleged existence of this shareholders agreement? 13 A We didn't. 14 Q Never? 15 A No. 16 Q You still haven't to this day? 17 A In Florida? 18 Q Yes. 19 A No. 20 Q So 20 years after the agreement was signed, you 21 have not n or did the Court? 22 A In Florida? 23 Q Yes, in Florida. 24 A No, what triggered what we are doing now is the 25 fact that the estate took my father's certificate which was 45 I I~a issued in his name and somehow tried to transfer that into this 2 trust, and that is what triggers our complaint here. They are 3 not allow ed to transfer that stock to anybody. 4 Q Isn't it true that you filed a pleading down in 5 Florida t hat makes exactly that argument? 6 A When? 7 Q Within the last several months? 8 A I don't think so. 9 Q So rather than go to the Florida court, this is 10 your test imony, that rather than go to the Florida court and 11 ask it to assess the importance of the shareholders agreement, 12 you have come here? 13 A This is where they -- they apparently transferred 14 this to a Pennsylvania trust. 15 Q Your testimony is you have never raised it in 16 Florida? 17 A I don't think so. 18 Q You never claimed in Florida that the death 19 provision in the agreement you say you signed required a sale 20 of the stock to the corporation when you father died, you never 21 raised that issue either? 22 A I don't believe so. 23 Q Okay. 24 MR. GREEN: That is all the questions I have. 25 THE COURT: Mr. Sohonage. <s 193a MR. SOHONAGE: I have a few follow-up, Your Honor. 2 3 REDIRECT EXAMINATION 4 BY MR. SOHONAGE: 5 Q Mr. Mumma, they questioned you about why you are 6 bringing this matter in Pennsylvania rather than Florida. Can 7 you tell us where the estate is open? 8 A Here. 9 Q The trusts are set up under the estate, is that 10 correct? 11 A That is correct. 12 Q Does your mom or sister have letters down in 13 Florida with regard to this estate, ancillary letters? 14 A My understanding -- the answer is at this time; but 15 shortly after my father's death they claimed his interest in 16 High-Spec as a Florida asset and got letters to probate that in 17 Florida. At some point in time -- they never proceeded and the 18 Court down there had a hearing and took their letters away and 19 closed the estate. 20 Q So in essence they do not have letters to proceed 21 down there? 22 A Not any. 23 Q And you could not bring an action against them in 24 Florida with regard to any letters because there are no 25 letters? 4~ 19gq MR. GREEN: I object, Your Honor, this calls for a 2 legal conclusion that the witness is not qualified to give. 3 THE COURT: Mr. Sohonage. 4 MR. SOHONAGE: I believe that Mr. Green just 5 questioned Mr. Mumma whether or not he filed it there and why 6 he had or hadn't, he is asking him legal conclusions, I am 7 simply asking why he did not choose to file in Florida. 8 MR. GREEN: Your Honor, I don't belive I asked him 9 why he didn't file in Florida. 10 MR. SOHONAGE: I will rephrase the question, Your 11 Honor. 12 THE COURT: All right. 13 BY MR. SOHONAGE: 14 Q Again, Mr. Mumma, what is your understanding with 15 regard to whether or not they have any standing as executrixes 16 or trustees in the state of Florida? 17 A They have none. They have to be served here is my 18 understanding. 19 Q After consulting with counsel, you opted to bring 20 the action here, did you not? 21 A Yes. 22 Q You were also questioned regarding this document 23 you hadn't seen for 15 or 2.0 years, questioned ad nauseam how 24 you could remember certain issues. Do you recall those 25 questions? 4a 195, 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I do. Q Can you tell this Court how you can recall what the interest was when you guys signed this agreement? Was there anything that stands out that you and your father said, hey, this is what we intend to do? How does your intent .relive itself, can you tell us? MR. GREEN: Your Honor, I object. I think this is beyond the scope of my examination. It also, again, leads right into the Deadman's Act problem, statements being offered by Mr. Mumma allegedly made to him by his father about his father's intentions and understandings in an action asserted against the estate. THE COURT: Mr. Sohonage. MR. SOHONAGE: Your Honor, I will rephrase the question. THE COURT: All right. BY MR. SOHONAGE: Q Tell me, how do you recall your intent or what the intent of this whole corporation was without specifically looking at this document? A The intent of this corporation was to speculate in this real estate, and it was to be a father/son venture. If something happened to me, this corporation was going to buy my stock back. If we sold a piece of property for a gain, I was going to get a capital gain personally through the Subchapter 49 19(aa S. There would be no build-up of equity in the company as we 2 sold these p roperties off. 3 Q After receiving this document, Exhibit 2, from Mr. 4 Boswell and reviewing the document, did that refresh your 5 recollection of what your intent was and what the intent was 6 with regard to High-Spec? 7 A I knew what my intent was. It refreshed my 8 recollection as to the terms of the agreement. 9 Q There was some questions about where this agreement 10 came from an d whether it came from Mr. Boswell, do you recall 11 those? 12 A Yeah, I do. 13 Q Is it your understanding this came from Boswell's 14 file? 15 A Yes, it is absolutely from his file. 16 Q You did make a statement that you received all of 17 Mr. Boswell' s files at one point? 18 A Yes. 19 Q Did you receive every document that you believed to 20 be in existe nce? 21 A So he tells me or so they represented to me. 22 MR. GREEN: Your Honor, I move to strike this as 23 hearsay, the testimony about what Mr. Boswell told Mr. Mumma, 24 that wasn't the question. 25 MR. SOHONAGE: It goes to his state of mind, Your so I99G Honor. 2 THE COURT: His state of mind? 3 MR. SOHONAGE: Yes, it goes to his state of mind, 4 the effect on the hearing and what he believed Mr. Boswell was 5 telling him. 6 THE COURT: If that is the basis for the question, 7 the objection is sustained. 8 BY MR. SOHONAGE: 9 Q Did you believe you received every document, not 10 what he told you, but did you believe after reviewing the file 11 that he gave you, did you believe you received every document 12 with regard to High-Spec that Mr. Boswell should have had in 13 his possession? 14 A No. 15 Q At some point later in time did you learn that Mr. 16 Morgan had gone in and picked. up these files? 17 A When I went through the box of documents, there is 18 four receipts in there where Mr. Morgan was -- picked up a 19 minute book, the bylaws, a stock book, a stock transfer ledger, 20 and stock -- I think that is the four. 21 MR. GREEN: I would ask that the volunteered 22 hearsay be stricken, Your Honor. 23 THE COURT: What is the hearsay that we are talking 24 about? 25 MR. GREEN: The hearsay about what these notes 51 ~ ~~ said. 2 THE COURT: Okay, Mr. Sohonage. 3 MR. SOHONAGE: If I may have a moment, Your Honor. 4 THE COURT: Is there .a response to the objection? 5 MR. SOHONAGE: Not at this point, sir, I will move 6 on. 7 THE COURT: The objection is sustained. 8 BY MR. SOHONAGE: 9 Q At some point was there an understanding by you 10 that you did not receive the whole file from Mr. Boswell? 11 A Yes. 12 Q You also made a statement regarding inventory. You 13 were asked questions, at some point you said after they 14 conducted tYie inventory, meaning the Department of State. Have 15 you ever received any information or seen any forms or seen any 16 report that they, in fact, did conduct an inventory? 17 A I seen a report that the revenue agent, a guy by 18 the name of Shambaugh (phonetic) was there when my mother 19 entered the box on November 2nd, and there was nothing of value 20 in the box. 21 Q That comes from the Department of Revenue, that is 22 their inventory that you have seen? 23 A That is right, but there is a second inventory that 24 they would not allow me to see. 25 Q Have you made requests to see this inventory? s~ 1994 A I did, from this guy John Murray -- excuse me, 2 Richard Senica. 3 Q Have you requested of the estate whether or not 4 they have a copy of the inventory? 5 A I looked at the -- any inventory is supposed to be 6 on file downstairs in the Register of Wills Office. There are 7 no copies of the inventory that I recall. 8 Q So by the information from the Department of State 9 and the information filed in the estate there is no inventory 10 and there never was? 11 A Nothing that reflects what was in the box, that is 12 right. 13 MR. SOHONAGE: That is all I have, Your Honor. 14 THE COURT: Okay. Mr. Green. 15 MR. GREEN: I have no further questions. 16 THE COURT: All right, you may step down, thank 17 you. 18 MR. SOHONAGE: We have no other testimony at this 19 point. 20 THE COURT: Do you want to move the admission of an 21 exhibit? 22 MR. SOHONAGE: Yes, sir, 1 and 2. 23 THE COURT: Mr. Green, do you have any objection to 24 the admission of Plaintiff's Exhibits 1 and 2? 25 MR. GREEN: We do not, Your Honor. 5 3 '~ THE COURT: All right, Plaintiff's Exhibits 1 and 2 2 are admitted. 3 Mr. Green. 4 MR. GREEN: Your Honor, at this point, does the 5 Plaintiff rest? 6 MR. SOHONAGE: Yes, sir. 7 MR. GREEN: Your Honor, at this point we would ask 8 that the motion be denied. We don't believe that the showing 9 made thus far based on Mr. Mumma's testimony is adequate to 10 sustain the burden necessary to award a preliminary injunction. 11 As I have indicated earlier, I am still not 12 entirely sure what the request for injunction is or asking the 13 Court to do at this point, but I don't think there has been any 14 showing of immediate or irreparable harm nor do I believe that 15 the other elements necessary for a preliminary injunction have 16 been shown, so at this point, Your Honor, before we would 17 proceed to our case, we would ask the Court deny the request. 18 THE COURT: Okay. Mr. Sohonage. 19 MR. SOHONAGE: Your Honor, with regard I assume 20 only to the issue of immediate irreparable harm, clearly Mr. 21 Mumma has testified that if Your Honor does not enjoin their 22 actions, again, I believe in our complaint we outline 23 specifically what we are looking for, and that is to stop these 24 executrixes/trustees from transferring or moving these assets 25 or taking any action representative of these assets until this 54 ~I~ matter is resolved. The only caveat to that would be to allow 2 it to be returned to Mr. Mumma. We argue the executrixes 3 should be prohibited from taking any action or asserting any 4 rights was respect to the shares. The irreparable harm, Mr. 5 Mumma -- 6 THE COURT: Wouldn't that basically end the case? 7 MR. SOHONAGE: Pardon me? 8 THE COURT: In other words, that is basically what 9 you are asking is relief in the case itself, is it not? 10 MR. SOHONAGE: No, I don't think that is the 11 ultimate issue, Your Honor, because at this point where these 12 assets are, it is questionable, they are in one of the two 13 trusts. It is our belief they may be in the residuary trust. 14 If they are in the testamentary trust, however, mom, who is the 15 beneficiary of the testamentary trust, can pull assets out of 16 that trust periodically. The value of them at this point is 17 $5,000 in their account, although it is worth a lot more, she 18 could conceivably pull out I believe it is up to $2500 a year, 19 she can pull out a certain amount of these assets saying it is 20 only 2500 and when in effect it may be worth about a half a 21 million dollars. It does not end the case, it is simply these 22 things need to sit there, it is our position, until this whole 23 matter is resolved. 24 Furthermore, they shouldn't be able to proceed or 25 act on the behalf of these shares as shareholders until this 55 ~~ issue is resolved. It is just we want them in safe keeping 2 until we can figure out exactly where they are, who they belong 3 to, and ultimately who they should go to. 4 THE COURT: How would this effect the Florida suit? 5 MR. SOHONAGE: Well, as I told Your Honor in 6 chambers earlier, there is a trial scheduled at some point, 7 there is no date certain, but at some point on the issue of 8 attorney's fees, if that matter goes to trial. 9 THE COURT: None of this is of record. What of 10 record do I have today that would respond to that question? 11 MR. SOHONAGE: Mr. Mumma testified that if these 12 things are allowed to move, if your court doesn't grant our 13 relief and this matter is allowed to move forward, then his 14 company will be dissolved, he will lose money, he will lose the 15 judgement that has been entered against him in the High-Spec 16 Florida action, that is irreparable harm that he can't ever 17 remedy. 18 At this point he is asking to be returned to the 19 status quo, the status quo being the estate has these things 20 and until it is decided whether or not this shareholder 21 agreement should be enforced, they remain in the estate without 22 the estate being able to act on their behalf or move them 23 without his consent. 24 THE COURT: So this will or will not effect the 25 Florida suit? 5 6 ~~ MR. SOHONAGE: I think ultimately it will probably 2 affect the attorney's fees action, yes, Your Honor, because we 3 are asking that they not be able to proceed as shareholders 4 until this matter is resolved. 5 THE COURT: Well, okay. The motion for compulsory 6 non-suit with respect to the request for preliminary injunction 7 is denied. 8 MR. SOHONAGE: Thank you, sir. 9 THE COURT: Mr. Green. 10 MR. GREEN: Your Honor, at this point I have 11 prepared deposition designations, I don't know how Your Honor 12 intends to rule, we do have some prior testimony of Mr. Mumma 13 and of one other witness, we can present that to the Court, in 14 open court, or simply submit the transcripts and the 15 designations and do it on briefs. I don't know how you wish to 16 proceed with the disposition. 17 THE COURT: Mr. Sohonage. 18 MR. SOHONAGE: I believe the deposition testimony 19 of Mr. Mumma, in the appropriate manner should have been to 20 question him on the deposition testimony. If you are asking 21 whether or not I would agree to a brief, I would like an 22 opportunity to review what he is going to present. I think he 23 could have done it during the cross-examination of Mr. Mumma, 24 so I don't know where he is going. 25 THE COURT: All right. Are you able to stipulate 5 7 ~ LQ that these depositions, that the transcripts are authentic? I 2 am not sure even what suit they are in. Are they in this suit? 3 MR. GREEN: No, Your Honor, there has been no 4 discovery in this action. What I have, Your Honor, there are 5 two transcripts of deposition testimony, a George Hadley, a 6 long time accountant taken in multiple actions, this not being 7 one of them, but Mr. Mumma himself was present and, in fact, 8 conducted a good portion of the questioning of Mr. Hadley. 9 There was also testimony given by Mr. Mumma in the 10 estate of this court proceeding last May, and testimony that he 11 gave in 1995 in the suit that he has pending against Dauphin 12 Deposit, all of which go to his allegations about this 13 shareholder's agreement, where it was located, whether it 14 existed and those sorts of things. Mr. Hadley's testimony goes 15 to Mr. Hadley's familiarity with the businesses over the years, 16 and he merely asserts that he has never seen nor heard of a 17 shareholder's agreement for the corporations. 18 THE COURT: What would be the basis for admission 19 of Mr. Hadley's deposition, what legal basis would there be? 20 MR. GREEN: It would be admitted as prior 21 testimony, Your Honor. Mr. Hadley is an accountant, resident 22 in the State of New York, that fact is established in the intro 23 to his testimony, which also goes through his qualifications 24 and background. He testifies to work that he did for the 25 family businesses to his access to family businesses and 5 8 ~C~A records. 2 THE COURT: What is the rule of evidence that would 3 allow me to open that testimony? 4 MR. GREEN: Your Honor, Mr. Hadley's testimony 5 would be admissible under Rule 804-(b)(1) of the Rules of 6 Evidence. 7 THE COURT: What does that rule say? 8 MR. GREEN: The title of the rule is Hearsay 9 Exceptions; Declarant Unavailable, Rule (b)(1) lists hearsay 10 exceptions, number one is former testimony. Under Rule (a)(5), 11 a declarant is available if they are absent from the hearing 12 and the proponent of the statement has been unable to procure 13 the declarant's attendance by process or other reasonable 14 means. 15 THE COURT: Is Mr. Hadley still living? 16 MR. GREEN: Yes, he is, Your Honor. 17 THE COURT: .What means did you take to procure his 18 attendance? 19 MR. GREEN: I did speak with him, it did not seem 20 as though he was available, and I have no ability to compel his 21 attendance because he is a resident of the State of New York. 22 THE COURT: Okay. Mr. Sohonage. 23 MR. SOHONAGE: With regard to whether or not he has 24 initiated appropriate means to get Mr. Hadley here, I dispute 25 that. I don't know that there is any testimony whether he 5 9 i_.x"Y A attempted to subpoena Mr. Hadley. His language was it appears 2 to me that he is unavailable. With regard to whether or not he 3 is unavailable, I submit there is an issue. 4 Over all with regard to this issue, Your Honor, 5 this action seems to be Mumma versus CRH, Inc., et al. I would 6 submit to the Court that at the inception of High-Spec, Mr. 7 Hadley was not the accountant involved. I don't know what his 8 testimony is in regard to this case, and I certainly had no 9 opportunity to cross-examine him with regard to this specific 10 issue arising in this matter. 11 Again, I could certainly review the testimony, Your 12 Honor, but I think it is objectionable at this point to 13 introduce this without opportunity of cross-examination if that 14 opportunity is reviewed; furthermore, I don't know that he 15 meets the requirements of the hearsay exception (a), (b) 16 unavailability. 17 THE COURT: The objection to Mr. Hadley's testimony 18 is sustained. 19 MR. SOHONAGE: Thank you, sir. 20 THE COURT: At least to the testimony by way of a 21 deposition. Mr. Sohonage, what is your position with regard to 22 alleged prior statements of Mr. Mumma? 23 MR. SOHONAGE: With regard to Mr. Mumma, again, I 24 have not had an opportunity to review these matters, I would 25 ask for that opportunity; but first and foremost, I assume that so ~~ they are coming in for impeachment purposes, and I think the 2 proper method of attempting to impeach Mr. Mumma would be to 3 ask him whether or not he said this, then if he denies, he is 4 shown the transcript. 5 I don't know if that is what these questions 6 Mr. Green was asking earlier were intended to do, but I think 7 that is the appropriate means to do it, not to enter the 8 deposition testimony into the record. He had an opportunity to 9 impeach, if that is what he intended to do, and I would assume 10 that is where he has it. 11 THE COURT: Mr. Green, do you have a response to 12 that? 13 MR. GREEN: Yes, Your Honor, much of the 14 designation was covered I believe, not all of it. This 15 testimony is admissible as an admission of Mr. Mumma, it 16 happens to be a sworn statement also, but these are prior 17 statements that he has made on matters related to the subject 18 matter of this proceeding. lg THE COURT: It would be an admission of a party, 20 but I am not sure this is how you could introduce it. You have 21 a certified transcript from another case, is that right? 22 MR. GREEN: They are not certified. 23 THE COURT: They are not certified? 24 MR. GREEN: They are not. 25 THE COURT: I am going to sustain the objection 61 ~ V(1~ then to that offer also. 2 MR. SOHONAGE: Thank you, sir. 3 MR. OTTO: Your Honor, if you would like to 4 proceed, I would like to do the next examination of the next 5 witness. 6 THE COURT: Mr. O'Conner. 7 8 JOSEPH O'CONNOR, 9 having been duly sworn, testified as follows: 10 DIRECT EXAMINATION 11 BY MR. OTTO: 12 Q Mr. O'Connor, would you state your name and address 13 for the record. 14 A Joseph O'Connor. 15 Q Mr. O'Connor, what do you do? 16 A I am a senior counsel at a law firm in 17 Philadelphia, Morgan, Lewis & Bockius. 18 Q Are you familiar with the estate of Robert M. 19 Mumma ? 20 A Yes. 21 Q In what regard or how did you come to be familiar 22 with that estate? 23 A When my partner, Art Kline, passed away, I assumed 24 responsibility for primary legal counsel to the estate. 25 Q .Approximately when was that, Mr. O'Connor? 62 ~~l 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I believe it was approximately 12 years ago. Q 1993 or so? A That is correct. Q Had you worked at all on this estate prior to that time? A Sporadically from time to time on particular issues. Q Are you familiar with the contents of Mr. Mumma's will? A Yes. Q Generally, would you describe for the Court what the will says? A The will leaves specific items of tangible personal property to Mr. Mumma, Jr.; to Mr. Mumma's daughter, Lisa; leaves the balance of the tangible personal property to Mrs. Mumma, Mr. Mumma's widow, sets up a pecuniary amount, marital trust, for the benefit of Mrs. Mumma, and leaves the residuary estate in a trust for the benefit of Mrs. Mumma. THE COURT: I need to ask a question. Were you involved at all in the writing of my mother's will?~ ---~--~ A Yes. THE COURT: You were? All right. Does that cause either counsel any problems? When was that will written? A I don't recall, Your Honor. Many years ago. THE COURT: All right. And she has since died. 63 210a 1 A Correct. 2 THE COURT: And you are not handling the estate? 3 A No. 4 THE COURT: Morgan, Lewis is not handling the 5 estate, is that correct? 6 A That is correct. 7 THE COURT: Does that cause either of the counsel 8 any problems? 9 MR. OTTO: Certainly no problem here, Your Honor. 10 MR. SOHONAGE: I am not questioning anyone's 11 integrity, but I think I have a duty to my client to object. I 12 believe there is an appearance of impropriety in this matter, _...~_. 13 so I would simply note that for the record. 14 THE COURT: I had no idea Mr. O'Connor was going to 15 be a witness in this case. Under those c~r~umstances, I am ,._ - -- 16 going to recuse myself and we will enter this order. You may r~~~ r 7 `i~+ 17 step down, thank you. AND NOW, this 18th day of April, 2005, 18 upon motion of Plaintiff's counsel, Kirk S. Sohonage, Esquire, 19 that the Court recuse itself in this matter, and it having 20 appeared in the last few minutes that one of the witnesses for - - 21 the Defendant has written the will for the Court's mother who 22 has since died, this judge will recuse himself from this case. 23 MR. SOHONAGE: Your Honor, after speaking with Mr. 24 Mumma, he indicated he would be willing to waive that issue 25 with regard to this hearing alone but not for the remainder of 64 ~~ ~°i 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the trial, remainder of the complaint, that is something Your Honor -- THE COURT: I am willing to do that if counsel are, with the understanding, is that going to be raised though later on then? MR. SOHONAGE: His indication is he would like to invoke it simply for this hearing alone with regard to this matter. But if the witness would testify at a later time then it possibly could be brought up. THE COURT: Okay. Mr. Green, do you want me to go ahead under those circumstances knowing that there is a clear possibility that I will be recusing myself if there is a motion for it later on? MR. OTTO: Your Honor, we have no objection to that. It seems efficient under the circumstances, since everyone is here and we have begun the hearing. THE COURT: All right. If it hadn't been that Mr. O'Connor is testifying, that would not have been a problem, but I do recall I believe that he wrote that will. We will vacate the earlier order. BY MR. OTTO: Q Mr. O'Connor, you are, of course, still under oath. I believe the last question I asked you is whether you are familiar with the will of Robert M. Mumma and you responded affirmatively? 65 ~~ ~' A That is correct. 2 Q And I had asked you to in general terms describe it 3 to the Court, and you had responded with respect to describing 4 some specific requests, personal property or residuary requests 5 of personalty and the creation of both a residuary and a 6 marital trust. 7 A Right. 8 Q And have either or both of those trusts been 9 created as of now? 10 A The marital trust has been fully funded. The 11 residuary trust is almost completely funded. There are a few 12 miscellaneous assets left in the estate that is shown on the 13 estate accounting, but the bulk of the residuary trust has been 14 funded as well as the marital trust. 15 Q How long ago was it that either or both, let's 16 start with the first of the two, how long ago was it that it 17 was funded? 18 A I don't recall. The marital trust was funded 19 fairly soon as I recall after Mr. Mumma died. The residuary 20 trust funding, it was a process that didn't get to where it is 21 now until approximately a year or two ago. 22 Q When you say fairly soon with respect to the 23 marital trust, a year, two year s, three years? 24 A It was probably four or five. We needed to settle 25 the taxes and make sure the computations were correct before we 6 6 ~~~~ funded the marital trust. The marital trust is what owns a 2 pecuniary amount, marital, which means it is a function of the 3 final figures on the federal estate tax return, so that tax and 4 the taxes that go into that had to be settled before we could 5 fund the marital trust. 6 THE COURT: The stenographer is having a little 7 trouble hearing you, if you could just lean forward a little 8 bit and speak into the microphone. Thank you. 9 BY MR. OTTO: 10 Q So the marital trust is funded within 4 to 5 years 11 after the death? 12 A That is my recollection. I could be mistaken, but 13 I believe that is correct. 14 Q But the residuary trust funded more recently? 15 A Correct. 16 Q You have heard the testimony about this stock in 17 High-Spec. Into which trust, if any, did that go? 18 A The stock in High-Spec was distributed to the 19 residuary trust. 20 Q When did that happen? 21 A In January of 2002. 22 Q The trustees of the residuary trust are who? 23 A The trustees of .the residuary trust are the same 24 persons that are the executrixes of the will, Lisa Morgan and 25 Barbara Mumma. 6, 214a Q They are both fiduciary capacity, correct? 2 A Correct. 3 Q Are the fiduciaries duties owed to the same people? 4 A Yes, in effect all the income from the marital 5 trust is to be paid to Mrs. Mumma, and all the income from the 6 residuary t rust was to be paid to Mrs. Mumma. 7 Q Does Mrs. Mumma as the surviving spouse have other 8 rights with respect to either of the two trusts other than 9 income? 10 A Mrs. Mumma has a right to withdraw each year an 11 amount equa l to five percent of the value of the marital trust 12 computed as of the end of the year. She has no right to any 13 other right with respect to the residuary trust. 14 Q Forgive me if I am repeating but I want to be clear 15 on this for the record, the High-Spec stock was funded into the 16 residuary t rust? 17 A That is correct. 18 Q And the residuary trust is the trust of the two in 19 respect to which Mrs. Mumma does not have any principal 20 withdrawal rights? 21 A That's right. 22 Q Just in income interest? 23 A That's right. 24 Q After the transfer of the High-Spec stock to the 25 residuary trust, was anyone notified that that occurred? sa ~~ A Yes. 2 Q Who? 3 A In April of 2002 I wrote a letter to the accountant 4 for High-Spec to Mr. Mumma and I think to Mr. Mumma's lawyer, I 5 have to check the letter; but I wrote them and told them that 6 the estate had made a distribution of the stock of High-Spec to 7 the residuary trust as of the end of the preceding year and to 8 please forward all information with respect to the corporation 9 to the residuary trust and not to the estate. I gave them the 10 tax ID number of the residuary trust. 11 Q That would have been in an effort to gather 12 information for the preparation of the trust tax return? 13 A That's right. 14 Q So you immediately or relatively soon after the 15 transfer informed Mr. Mumma and it is Mr. Mumma, II, who is the 16 Plaintiff in this lawsuit -- 17 A That's correct. 18 Q -- that you transferred the stock from the estate 19 to the residuary trust? 20 A Yes. 21 Q In the course of your dealing with this estate 22 since approximately 1993? 23 A I believe that is correct. 24 Q When did you first learn of this alleged 25 restrictive share agreement with respect to the High-Spec 6 9 ~2~ VJ~1 stock? 2 A I think the first time that I heard of it was when 3 I looked at papers served on the estate in this proceeding. I 4 can't recall ever having heard of it prior to that time. 5 Q Are you familiar with the legal proceedings in 6 Florida that have been referred to? 7 A Very generally, yes. 8 Q What is your understanding, a brief summary for the 9 Court, of what is occurring in Florida? 10 A As I understand it the estate as a shareholder of 11 High-Spec brought an action on behalf of High-Spec on behalf of 12 the corporation to compel Mr. Mumma to give back to the 13 corporation assets which he improperly took from the 14 corporation and the Florida Court decided in favor of the 15 estate and ordered Mr. Mumma to restore the assets to the 16 corporation. 17 Q Are there issues remaining to be resolved in that 18 Florida litigation that you know of? 19 A My understanding is that the judgment with respect 20 to Mr. Mumma's liability is final but that there is an issue 21 with respect to the amount of the attorney's fees that. Mr. 22 Mumma will have to pay and the amount of the pre and post 23 judgment interests that he will have to pay both in respect of 24 the periods and the rate, the applicable rate. 25 Q Those issues have yet to be resolved? 2~`~ 70 A I believe that is correct. 2 Q But you believe it is a final judgment against Mr. 3 Mumma -- 4 A Yes. 5 Q -- in favor of the corporation -- 6 A That's correct. ~ Q -- and functionally in favor of the estate and the 8 trust? 9 A Right. 10 Q What urgency, if any, was there with respect to 11 funding the residuary trust? 12 A There was no urgency. The estate after the funding 13 of the marital trust and the payment of specific legacies, the 14 tangible personal property, the specifics legacy and payments 15 of Mr. Mumma's debts and all the death taxes was in effect the 16 residuary trust. It is simply a question of transferring the 17 name on the account. All of the income in the estate was 18 payable to Mrs. Mumma and all of the estate assets were 19 ultimately to be destined to go to the residuary trust which 20 was the remaining beneficiary of the estate. 21 Q Did Mrs. Mumma, the surviving spouse, or any other 22 heir of the estate, gain greater rights or different rights 23 with respect to the High-Spec stock by virtue of the transfer 24 to the residuary trust from the estate? 25 A No. 71 2`~ Q Did any rights change at all? 2 A None. 3 Q So it is simply a matter of form -- 4 A Correct. 5 Q -- and not of substance? 6 A Correct. 7 MR. OTTO: Thank you, that is all I have. $ THE COURT: Mr. Sohonage. 9 10 CROSS-EXAMINATION 11 BY MR. SOHONAGE: 12 Q Mr. O'Connor, the last question Mr. Otto had for 13 you, basically this was only form, nothing changed basically, 14 is that correct? 15 A I don't understand your question. 16 Q The last two questions he had asked you, do you 17 recall what he was asking? 18 A No. 19 Q You don't recall. Okay, he said basically none of 20 the beneficiaries of this estate have gained anything by this 21 transfer into the residuary estate, the residuary trust, is 22 that correct? 23 A That is not what he said. 24 Q Let me ask you, have any of the beneficiaries 25 gained anything by transferring this from the estate into the 72 ~~~~ residuary trust? 2 A I don't understand your question, sorry. 3 MR. SOHONAGE: Read back his question please. 4 THE COURT: We are going to have to adjourn anyway 5 at this point. You may step down, thank you. We will enter 6 this order: AND NOW, this 18th day of April, 2005, upon 7 consideration of Plaintiff's Petition for Emergency Relief 8 which is being construed by the Court as a petition for a 9 preliminary injunction, and a hearing having been commenced on 10 this date but not completed, the record shall remain open. A 11 second period of hearing in this matter is scheduled for 12 Thursday; June 9, 2005, at 1:30 p.m. in Courtroom No. 1, 13 Cumberland County Courthouse, Carlisle, Pennsylvania. 14 It is noted that at the time of adjournment on 15 today's date Plaintiffs had completed their case-in-chief and 16 Defendants had commenced their case-in-chief with the first 17 witness, Joseph O'Connor, Esquire, being subjected to 18 cross-examination by Plaintiff's counsel. 19 It is further noted that at the time of 20 adjournment, Plaintiff' s Exhibits 1 and 2 had been identified 21 and admitted, no other exhibits had been identified or 22 admitted. 23 Are there any pending matters in this case, other 24 than this preliminary injunction request? Mr. Otto? 25 MR. OTTO: Yes, Your Honor, we have filed 7 3 ~~Q preliminary objections to the amended complaint that was done 2 late last week. The preliminary objections do raise issues of 3 fact largely around the Florida litigation as you might 4 imagine, those POs are pending. O THE COURT: All right. What is counsel's position 6 as to whether I would be able to consider them? I am thinking 7 maybe since this issue ha,s come up I should simply qet out of 8 the case rather than continue on with it. Because I can see 9 other matters coming up between now and June when I am. going to 10 be asked to recuse myself for one reason or another, and maybe 11 there could be an agreement that the record from today's .. 12 proceeding will simply be assigned to another judge and that 13 judge could consider this record and further proceedings. 14 MR. SOHONAGE: I understand the Court's position 15 with regard to recusal; and I believe, again, that an 16 appearance of impropriety may exist, although, I don't question 17 your integrity, sir. Please understand that with regard to 18 forwarding this to another judge, I think that is a matter that 19 may need to be briefed, that issue has arisen in other 20 litigation we are involved in, and my understanding is that one 21 judge cannot take testimony from another and issue a ruling on 22 that. 23 THE COURT: Not without the agreement of counsel 24 they couldn't. 25 MR. SOHONAGE: I don't have an objection Z21q 79 another judge at this point, I think it might have to be de 2 novo. 3 THE COURT: Okay, Mr. Otto. 4 MR. OTTO: Your Honor, we would be equally 5 undisturbed, I will put it that way, if this record was given 6 to another judge or that judge started de novo, frankly, we 7 understand from a judge's perspective that they would want to 8 hear the testimony de novo to see the witnesses' behavior, so 9 on and so forth, we would have no objection to handling it that 10 way. We certainly have no objection with your remaining on the 11 matter either. 12 THE COURT: Mr. Sohonage, you are not able to 13 indicate at this time that you would not be requesting that I 14 recuse myself with respect to other issues in the case? 15 MR. SOHONAGE: I cannot state that for the record, 16 sir. 17 THE COURT: Okay. We will enter this order: And 18 naw, this 18th day of April, 2005, it appearing to the Court 19 that one of the witnesses in this proceeding had written the 20 last will and testament of the Court's mother, who has since ~- 21 died, and that that witness' credibility may be an issue in ... 22 this proceeding, and with the concurrence of counsel,-the Court 23 will recuse itself from further participation in this case, and -. 24 the Court administrator is requested to transfer this case, ~__ - - - 25 including the Petition for Emergency Relief filed on behalf of Z~Z4 the .Plaintiffs to another judge of this Court. Court is adjourned. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 76 22~ r - , ,T .i CERTIFICATION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause and that this is a correct transcript of same. Patricia C. Barrett Official Stenographer The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. Date ZZaa N 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 TRANSCRIPT OF PROCEEDINGS Proceedings held before the HONORABLE J. WESLEY OLER, JR., J., Cumberland County Courthouse, Carlisle, Pennsylvania, on August 29, 2005, In Courtroom Number 1. APPEARANCES: No V. Otto, III, Esquire and Brady L. Green, Esquire For Barbara McKimmie Mumma and Lisa M. Morgan Robert M. Mumma, II, Pro Se ~ ~ ~~~ ~ m~ d~ v~- S -~ ~ 'v ~- n-~ 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PETITIONER'S EXHIBIT 1 - V`i/ 1~/ UJ l.Ldi15C:L1~Jl. INDEX TO EXHIBITS MARKED 5 ADMITTED J 2 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: This is the time and place for a hearing on Petitioner's Motion for Recusal of Judge Due to Appearance of Impropriety in the case of the Estate of Robert M. Mumma at No. 21-86-398 Orphans' Court. We will let the record indicate that the Petitioner, Robert M. Mumma, II, is present in court representing himself. No V. Otto, III, Esquire, is present in court, as is Brady L. Green, Esquire. Mr. Otto, Mr. Green, which party are you representing? MR. GREEN: Counsel for Barbara McKimmie Mumma and Lisa Mumma Morgan, the executrixes and trustees under the will. THE COURT: All right. Mr. Mumma, this is your motion. MR. MUMMA: Yes, sir, Your Honor. I would like to refer the Court to transcript proceedings held on April 18, 2005, in this courtroom. THE COURT: Is that in a separate case? MR. MUMMA: It is in a case 04-6183, Robert M. Mumma, II, Plaintiff, versus the estate. THE COURT: All right. Do you want to have that item marked as an exhibit? MR. MUMMA: I can do that. THE COURT: I think we should because otherwise that record is not part of this record since they are separate cases. I am assuming that is the case in which I did recuse 3 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 myself -- MR. MUMMA: It is. I would like to read it into the record. THE COURT: I pretty well remember it. If we get the transcript in the record, then it will be there. MR. MUMMA: I wanted to call to the attention to -- two specific paragraphs from this, which is a rather lengthy document, and I think it might be more efficient if I just read those two paragraphs in, and then we can make the whole thing an exhibit. THE COURT: All right, go ahead. Please read slowly for the stenographer. MR. MUMMA: I will, and I also try to identify the paragraphs by page and line numbers so that you can find them. THE COURT: All right. MR. MUMMA: The first is found at line 5, page 74: "THE COURT: All right. What is counsel's position as to whether I would be able to consider them? I am thinking maybe since this issue has come up I should simply get out of the case rather than continue on with it. Because I can see other matters coming up between now and June when I am going to be asked to recuse myself for one reason or another, and maybe there could be an agreement that the record from today's proceeding will simply be assigned to another judge and that judge could consider this record and further proceedings." 4 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The second paragraph is found at line 17 on page 75. "THE COURT: Okay. We will enter this order: And now, this 18th day of April, 2005, it appearing to the Court that one of the witnesses in this proceeding had written the last will and testament of the Court's mother, who has since died, and that that witness' credibility may be an issue in this proceeding, and with the concurrence of counsel, the Court will recuse itself from further participation in this case, and the Court administrator is requested to transfer this case, including the Petition for Emergency Relief filed on behalf of the Plaintiffs to another judge of this Court. Court is adjourned." THE COURT: Okay. Let's have this transcript marked as Petitioner's Exhibit 1. (Petitioner's Exhibit No. 1 marked for identification.) THE COURT: I believe that item has been marked as Petitioner's Exhibit No. 1. Mr. Green, do you have any objection to its admission? MR. GREEN: No objection, Your Honor. THE COURT: Mr. Otto, do you have any objection? MR. OTTO: No, Your Honor. THE COURT: All right. Petitioner's Exhibit 1 is admitted. Mr. Mumma. 5 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. MUMMA: Your Honor, I would like to further remind the Court that this issue of recusal originally came up in '99, 2765, which was the case of Robert Mumma against Pennsy Supply, Inc. THE COURT: I can't take judicial notice of other cases in the courthouse. If you want to present some sort of testimony to support your motion for recusal, of course, I will consider it. But you can't just start citing other cases in the Court that have taken place and expect me to go down to the files and see what is in those cases. MR. MUMMA: Your Honor, I am not asking you to do that. We tried to get the transcripts from -- that was an in-chambers meeting. There was also another in-chambers meeting in this case, and a first day of hearing on the appointment of Mr. Andrews in this case. All three of those transcripts relate to the issue of recusal, and the closeness of Morgan, Lewis & Bockius to the Oler family. THE COURT: Well, you have -- MR. MUMMA: They were not able to prepare those in time for today. THE COURT: Well, then you have to place on the record the grounds for your motion. You have referred to the closeness of the Oler family with Morgan, Lewis & Bockius, you need to be very specific as to what you are taking about. My recollection is my father was in the firm of 6 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Morgan, Lewis & Bockius and that he retired in the 1970s. Apparently, Joseph A. O'Connor, Jr., who was with Morgan, Lewis & Bockius, wrote my mother's will, which has since been probated following her death. The firm of Morgan, Lewis & Bockius is not the attorney for the estate. Is there something more that you think should be placed on the record with regard to my association with Morgan, Lewis & Bockius such as it is? MR. MUMMA: I think that relationship is enough, Your Honor. We are talking about the reliability of your father's law partners. It is his law firm and his partners that are here taking my assets and distributing them to my father's estate. I claim it is a continuing criminal conspiracy, and I don't think that I am going to get an impartial hearing in these issues because of the closeness of the relationship with Morgan, Lewis & Bockius. Your father was a partner there. They wrote your mother's will. They provided legal services to the Oler family. I don't think that you can be impartial. You had to rely on their advice. You believe them to be good people. This whole case is about the fact they are bad people, they are stealing from me. THE COURT: You are assuming some attitude on my part that would cause me to be partial to one side. For one thing, this case is in the hands of an auditor at this point. 7 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I am not hearing any testimony from anybody, let alone Mr. O'Connor. In the other case, I was faced with the prospect right at that moment of hearing testimony from him which quite frankly took me by surprise and I did recuse myself in that case, but that is not the situation here. MR. MUMMA: I can assure you that if I filed an objection, Mr. O'Connor is going to be on that stand and that will be at the end of the day and it will all be for not. Now the time to do this is now. THE COURT: Why would he be on the stand in my courtroom? MR. MUMMA: Well, I guess we are assuming then that whatever Mr. Andrews says is going to be gospel and it will never be able to be challenged. THE COURT: No, we are assuming that the record will be made in front of Mr. Andrews, not in front of me. MR. MUMMA: That is hardly due process. I am entitled to my day in front of a judge, he wasn't elected judge. THE COURT: All right. Is there anything further you want to bring to the Court's attention on the issue of recusal? MR. MUMMA: I think the very fact that you appointed Mr. Andrews to burry this whole thing and drag it out as long as he could and to hide the facts in this issue shows 8 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the bias. It is all about covering up for Morgan, Lewis & Bockius, that is all it is, protecting them. THE COURT: Mr. Green, do you have a response? MR. GREEN: Your Honor, we have nothing to add to the record at this point. THE COURT: Okay. Mr. Otto, is there anything further that you wanted to say? MR. OTTO: No, Your Honor, thank you. THE COURT: We will enter this order, AND NOW, this 29th day of August, 2005, upon consideration of Petitioner's Motion for Recusal of Judge Due to Appearance of Impropriety, and following a hearing, the motion is denied without prejudice to Petitioner's right to submit a new motion in the event that the record as it develops would warrant the same. So, Mr. Mumma, I have denied your motion at this time. If as the record transpires it seems to me that there would be a conflict or the appearance of a conflict on my part, obviously, I will consider it in a motion. MR. MUMMA: In my perspective, Your Honor, I have been thrown out of court, that is exactly what you are doing. I am now in the hands of Mr. Andrews, who is going to do whatever he is told to, and this Court is denying me due process. I have asked that since you have thrown me out of court that I be able to appeal this issue. THE COURT: No, you may not; and you have not been 9 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 thrown of court, and that is a ridiculous statement. MR. MUMMA: It is not a ridiculous statement. THE COURT: Court is adjourned. 10 ERTIFICATION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause and that this is a correct transcript of same. ~Gby~ ~ ~C~~L ~ Patricia C. Barrett Official Stenographer The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed toy be filed. Date ° ' 11 s v. CIVIL ACTION - LAW ,,,: . _ ROBERT M. MUMMA, II, Defendant 95-5482 CIVIL TERM - IN RE: PRETRIAL CONFERENCE --i A pretrial conference in the above-captibned.'case was held in the chambers of Judge Oler on Thursday, January 2, 1997. Present on behalf of the Plaintiff was William P. Douglas, Esquire. Present on behalf of the Defendant was Arthur W. Lefco, Esquire. This is an action in assumpsit for legal services rendered to Defendant. Defenses include the alleged unreasonableness of and lack of necessity for charges made, lack of consideration, lack of an agreement as to the fee arrangement and the four-year statute of limitations as it may apply to some of the fees claimed. The total amount claimed by the Plaintiff is $219,851.E0. #13 OLER CHARLES E. SHIELDS, III, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA One issue in the case may involve the applicability of Rule 1.5(b) of the Rules of Professional Conduct. This rule provides as follows: "When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, in writing, before or within a reasonable time after commencing the representation." Counsel are requested to furnish briefs on the applicability of -~,~ -~~• r r-n rYl u VY'I-'1"4~ ~-- this rule to Plaintiff's claim to the Court within five days of commencement of the trial term. This will be a jury trial with each side, pursuant to an agreement of counsel, having four peremptory challenges, for a total of eight. The duration of trial is estimated to be three days. With respect to settlement negotiations, the sum of $40,000.00 has been offered by the Defendant. The Plaintiff has declined to accept this offer. It is difficult for the Court to estimate the likelihood of settlement in this case. It is noted that one of the deposition exhibits in this case contains a reference to a discussion which the Plaintiff had with this judge when the judge was in private practice in January of 1991 concerning research which Plaintiff was allegedly doing. For that reason, it is believed that another judge should handle this particular case at trial.. It is noted further that, at a previous pretrial conference, the Honorable Harold E. Sheely indicated that because of his acquaintance with the litigation which Plaintiff was allegedly handling, and Plaintiff's having served as a law clerk for President Judge Sheely, Judge Sheely would prefer to recuse himself as well from the trial in this case. To the extent that any videotape depositions are to be presented to the jury, counsel are directed to furnish a transcript of the deposition, with any objections highlighted thereon, at least five days prior to commencement of the trial term, with brief memoranda in support of their respective positions. WILLIAM P. DOUGLAS, ESQUIRE For the Plaintiff ARTHUR W. LEFCO, ESQUIRE For the Defendant Court Administrator wcy By the Court, . 'Wesley Ol , Jr. ' A/ IN RE: ESTATE OF IN THE COURT OF COMMON PLEAS OF ROBERT M. MUMMA CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION N0.21-86-398 ORDER OF COURT AND NOW, this 22°a day of April, 2005, upon consideration of Petitioner's ~~ ~~ ~~ o v' Request for Order That Estate Has Waived Its Right To Contest a Disclaimer Filed and Revoked or, Alternatively, Request for Immediate Hearing To Determine Whether the Estate Has Waived Its Right, this matter is referred in the first instance to the auditor, Taylor P. Andrews, Esq. Robert M. Mumma, II Box 58 Bowmansdale, PA 17008 Pro Se No V. Otto, III, Esq. 10 East High Street Carlisle, PA 17013 and Joseph A. O'Connor, Jr., Esq. Brady L. Green, Esq. Morgan, Lewis & Bockius, LLP 1701 Market Street Philadelphia, PA 19103-2921 Attorneys for Barbara McK. Mumma And Lisa M. Morgan . _ . ~ .. _~~ _-L.L ~ ~ /P ~~ ~~ BY THE COURT, „,,,~,,. ,,`~= ~~ `7 ~; tSl fit" Ralph A. Jacobs, Esq.. 10~' Floor 215 S. Broad Street Philadelphia, PA 19107 Attorney for Barbara Mann Mumma Taylor P. Andrews, Esq. 78 West Pomfret Street Carlisle, PA 17013 Auditor :rc • ,r ~ IN RE: ESTATE OF IN THE COURT OF COMMON PLEAS OF ROBERT M. MUMMA CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DMSION N0.21-86-398 ORDER OF COURT AND NOW, this 29`h day of April, 2005, upon consideration of Petitioner's Motion To Compel Inspection of All Books and Records, this matter is referred in the first instance to the auditor, Taylor P. Andrews, Esq., for purposes of a recommended order. BY THE COURT, l ? '! / //. J esley Oler, r., J_ Robert M. Mumma, II Box 58 Bowmansdale, PA 17008 Pro Se No V. Otto, III, Esq. ~{12q~oS i0 East High Street p~~~ ` Carlisle, PA 17013 Ct and Joseph A. O'Connor, Jr., Esq. y `~- Brady L. Green, Esq. ~tS ~--~ Morgan, Lewis & Bockius, LLP ~~w;.,L 1701 Market Street Philadelphia, PA 19103-2921 ~"'~ 1~`~°,`` ` ~' ~ Attorneys for Barbara McK. Mumma ~":`~~y uA And Lisa M. Morgan A~v~t~ ~~ Ralph A. Jacobs, Esq.. l0~' Floor 215 S. Broad Street _. _ . ;~~ ~ ~ .. 5 ~~ ~.i~~~ ~ • • Philadelphia, PA 19107 Attorney for Barbara Mann Mumma Taylor P. Andrews, Esq. 78 West Pomfret Street Carlisle, PA 17013 Auditor :rc JA Uyy ' Y `rl~y N-15-2008 @1:59 PP1 ANDREWS&JOHNSO.N I I i ~1 ANDREWS &,IOHNSON Attorney9 at Law 78 West Pomfret Street Carlisle, PA 17013-3216 ~I'AYLC~R P. ,~NI>REWS RONALD E:. IOHNSC)N 7172430061 P. 01 'Telephone (71 ~) Z43-0123 Telcfax (717) 2~3-0061 January 14, 2008 f3eorge I3. Caller, I:sq. & lvo 'J. Otto, ill, Esquire 10 East High Street ~= arlisle, FA 17013 rax: ?43-1850 Rahcrt M. i`9utnma : I In Pro Se I3ox 58 13uwmansdalr. PA 170C18 fax: b12-97?2 ,li~seph A. O'Connor, Jr.. Esquire and Ralph A. Jace~bs, Es~uirc ~rad~• L. lireen, Esquire: l S l 5 Market Street, Ste. 705 1701 Market Street Philadelphi~~, PA 19102 Philadelphia. YA 1?103-2921 fa~c:215 ?'8~1."3~2'~fC~.,;~9.•_yL.~t,'7 tax: ? 1 s 963-Soo 1 'T~f.~~ . ~-'/,.3 R1i: In re Estate of Raberi M. Mumma, Deceased Ira 21-8G-398 fU.C~. Gum ierlandl Postponement of scheduled depasition of Joseph A. U'Connor, l:sq. tientlemcn: Tlus letter is in response to a letter I have received from attorney 1~a11er pertaining to the deposition notice served by Robert M. Mumma I1 for the deposition of Joseph A. %?'(`,onnc~r, Jr., Esq. on January 21.2008 in 1„emoyne. I note that this deposition notice implicates discovery matters that have been befc~rc me and tivhich are not entirely resolved. I also note that Attorney Green is unavailable at the noticed date and tini~:. in light of the above I direct that this deposition not proceed until we havz a chanc: to confer at a cunfe~rence that I will endeavor to schedule within the next 30 da}~s. Very truly yours, .ANUR OH', 'ON TjsY o P.. ndrews_ C;sy., ~+.uditc~r 1~1'.~ ss rc: lum, J Vr'cclc~~ O1cr ~y,~- rn m ~ ca ~ ~~~ ~~ '" !''• ~-"= ROBERT M. MUMMA, II Box 58 BOW MAPtSDAI.E, PA 17008 March 11, 2008 Taylor P. Andrews, Esquire 78 West Pomfret St. Carlisle, PA 17013 Re: In Re Estate of Robert M. Mumma No. 21-86-398 Auditor Proceedings Dear Mr. Andrews: Please recall that there were recent efforts made to schedule an Auditor's Conference in the above-capt~ t ha ettbeen no furtheameasures taken in this regard. correspondence, there appea Please advise as to the status of this matter at your earliest convenience. 1 will be available for the following dates: April 16, 17, 18, 21, 22, 23, 24, 25, 28, 29, 30, and May 1, 2, 5, 6, 7, 8, 9, 12 of 2008. Please recall that Judge Oler's most recent scheduling Order references a deadline of May 31, 2008, Therefore, all issues concerning the scheduling of said Auditor's Conference should be resolved promptly. Thank you for your timely attention to this matter. Yours truly, ~ a ~ . l~ .H.~..~.a .17 Robert M. Mumma, II pro se RMM CC: Honorable J. Wesley Oler Ralph Jacobs, Esquire Brady Green, Esquire Joseph O'Connor, Esquire George Faller, Esquire fvo V. Otto, Esquire ~.,~ ~~ ~ ~~~ `~