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HomeMy WebLinkAbout11-25-08 (2)IN RE: ESTATE OF IN THE COURT OF COMMON PLEAS OF ROBERT M. MUMMA, CUMBERLAND COUNT', PEN~YLVA - , Deceased ~_ -A, ORPHAN'S COURT DIVISION ~~=~';, `.~ `-'' ~~ -~, r-~ ua N0.21-86-398 ~ -- -T, - =, ;~._ ., . _. _,_ ,~ _tii MOTION FOR RECONSIDERATION ;~ ..; cn OF THE ORPHAN'S COURT ORDER DATED NOVEMBER 5, 2008 AND NOW, comes Robert M. Mumma, II, pro se, who files the instant motion for reconsideration of the Orphans' Court Order dated November 5, 2008, acid in support thereof avers as follows: 1. On August 22, 2008, the undersigned Movant filed a Motion for ]Disqualification of Morgan, Lewis & Bockius ("MLB" hereinafter) and 'The Martsor~ Law Office ("Martson" hereinafter) from Continuing Legal Representation of the Estate ~~nd the Trusts. 2. Said motion for disqualification of Estate counsel set forth several key averments which can be summarized succinctly as follows: (a) While a client of MLB, the undersigned was given legal advice with respect to a disclaimer and its impact on his interests and his minor children's interests. After the undersigned had signed a single copy of the disclaimer and returned it to MLB with express written instructions to deliver same only to Lisa Morgan, MLB then hired Martson to file it with the court. In spite of the revocation the~~eof which has been twice-endorsed by this Orphans' Court, both MLB and Martson have continually relied upon the filing of said disclaimer in support of various ]legal arguments proclaiming that the undersigned is without standing. Additionally, both of the said firms have otherwise used the disclaimer in the construction oaf various legal positions adverse to the undersigned's interests as a beneficiary of the ):;state and the Trusts. S (b) Attorneys of both firms (Joseph O'Connor, Esquire and William F. Martson, Esquire) have already been witnesses in these proceedings. According to the court's observations at a hearing in this Estate case conducted on August 18, 2008 hearing, there is a great likelihood that each of these two attorneys wily appear again to testify at upcoming hearings or a trial. (c) MLB and Martson filed a response to the undersigned's motion to vacate the appointment of Attorney Andrews as auditor which denied th~~ majority of the averments in said motion to vacate and which sought to have 'the motion denied by the court. Hence, the Estate counsel contested the undersigned's efforts to remove the Auditor, notwithstanding the fact that the Auditor himself later admitted that his failures and his neglect in his court-ordered duties as auditor c;aused excessive and inexcusable delay. Such delay is related to the depletion, prejudice, and frustration of the beneficiaries interests in the Estate and the Trusts. (d) Over the past 22 year history of this case, MLB and Martson Have pursued a deliberate course of action devised to deplete, prejudice, and frustrate the interests of the beneficiaries of the Estate and the Trusts, notwithstanding said Estate counsels' legal and fiduciary duties owed to and for the benefit of said beneficiaries. (e) Specifically, MLB and Martson have allied themselves with the Executrices / Trustees and orchestrated a manipulation of the 5% withdraw~~l rights under the Marital Trust in a manner designed to deplete, prejudice, and :Frustrate the interests of the beneficiaries of the Estate and the Trusts, notwithstanding said Estate counsels' legal and fiduciary duties owed to and for the benefit of said beneficiaries. (f) As a result of their legal counsel to the Executrices/Trustees concerning the acquisition and disposition of various assets, interests, and property allegedly belonging to the Estate, as well as the Executrices/Trustees' subsequent actions taken with respect thereto in spite of the contested nature of any right to claim same as an Estate asset, MLB and Martson have caused the interests of tl:~e beneficiaries of the Estate and the Trusts to be converted and prejudiced notwithstanding the legal and fiduciary duties owed to and for the benefit of said beneficiaries. 3. On August 28, 2008, the Orphan's Court issued the following Orcier: AND NOW, this 28`~ day of August, 2008, upon consideration of the Motion to Disqualify Morgan, Lewis 8c Bockius and the Martson Law Office from Continuing Legal Representation of the Estate and the Trusts, it is ordered that: 1. A Rule is issued upon all interested parties and the said law firms to show cause why Movant is not entitled to the relief requested; 2. Answers to the motion shall be filed within 21 days of the date of this order; 3. The petition shall be decided under Pa. R.C.P. 206.7; 4. Depositions shall be completed within 49 days of the date of this order; 5. Argument shall be held on Wednesday, December 17, 20C-8, at 11:00 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. 6. Briefs shall be submitted at least seven days prior to argument. 7. Pending argument and further order of court, neither law firm is prohibited from continuing its representation of record herein. BY THE COURT, J. Wesley OIE;r, Jr., J. 4. On September 18, 2008, Barbara McK. Mumma and Lisa M. Morgan filed an Answer and New Matter.l Said New Matter cites a prior motion filed in January 1989 which sought to disqualify MLB from acting as counsel for Mrs. Mumma and Mrs. Morgan. Said New Matter further cites the opinion issued by Judge Sheely on February 13, 1989. 5. On October 7, 2008, the undersigned filed a Reply to the New M:otter which asserted, inter alia, that (i) the pending motion to disqualify Estate counsel extends to both MLB and Martson (not just MLB as was the case in 1989); (ii) Judge Sheely specifically left the door open to file future motions to disqualify the Estate counsel (see, i.e., Paragraph 62 of the Reply); and, (iii) the pending motion to disqualify MLB and Martson seeks to address Estate issues that have transpired in the 19 year interim l~~tween the filing of the aforesaid January 1989 motion and the pending motion. 6. Following the filing of the aforesaid Answer and New Matter, the undersigned served subpoenas and notices of deposition upon Lisa M. Morgan, Joseph A. O'Connor, Jr., Esquire, and Harry G. Lake, Jr. Said subpoenas and notices of deposition were sent to all three of the proposed deponents on September 30, 2008. 1 Despite the instructions in Paragraph # 1 of Judge Oler's Order of August 28, 2.008, neither of "the said law firms" responded to the rule returnable to show cause why Movant is not erntitled to the relief requested. Likewise, neither of "the said law firms" filed an answer to the motion within 21 days of the order. On November 21, 2008, the undersigned filed an appropriate motion under Pa. R.C.P. 206.7(a) with respect to the failure of MLB and Manson to respond as ordered by Judge Oler's Order of August 28, 2008. 7. Following service of the subpoenas and the notices of deposition, all three of the proposed deponents objected through their respective counsel by filing motions (i.e., motions for protective orders and/or motions to quash the subpoenas). 8. On October 7, 2008, counsel for Harry G. Lake, Jr. filed a motion to quash the subpoena, or in the alternative, a motion for a protective order. 9. On October 9, 2008, Judge Oler issued an Order which directed the undersigned to file a rule returnable to show cause why Lake's motion should not be granted within 14 days. 10. On October 23, 2008, the undersigned filed a Response to Lake's motion. Paragraph 8 of said Response cited Pa. R.C.P. 4007.1(c) which provides that a p<~rty who notices a deposition of a witness is not required to divulge beforehand the purpose of the deposition and the matters to be inquired into. 11. On November 5, 2008, Judge Oler issued an Order which granted. Lake's motion to quash the subpoena. Within said Order, Judge Oler determined that the undersigned "has declined to specify the relevance of the testimony of Mr. Lake to the issue of the disqualification of Morgan, Lewis 8c Bockius, LLP". 12. 'The instant Motion for Reconsideration is filed in an effort to persuade Judge Oler to reconsider his decision which has foreclosed the undersigned from taking the deposition of Mr. Lake. In reconsideration of same, it must be emphasized that Lake's motion let loose a number of proverbial red herrings into this stream of litigation by invoking matters that are far afield from the pending motion to disqualify Estate counsel. 13. In reconsideration, the court should take notice that Lake's motion posits that the subpoena was served in order to revisit corporate filings for the Pennsy businesses in 1982 and that it is somehow designed to revisit a "two Pennsy theory" addressed in other litigation (see, Paragraph #12(a) of Lake's motion); to the contrary, the undersigned's Reply points out that the deposition of Mr. Lake is sought in the bending matter at this time for testimony which is reasonably believed to be relevant, probative, and material to the pending motion to disqualify MLB and Martson. 14. In reconsideration, the court should take notice that Lake's motion further darkens the smokescreen by attaching two other Orders where Judge Oler cancelled Mr. Lake's deposition in the CRH case in 2006 and in 2007, as well as court filings related to a Dauphin County opinion issued in 2005 (see, Exhibits B through F attached to Lake's motion); to the contrary, the undersigned's Reply points out that the deposition of Mr. Lake is sought in the pending matter at this time for testimony which is reasonably believed to be relevant, probative, and material to the pending motion to disqualify MLB and Martson. 15. In reconsideration, the court should take notice that Lake's motic-n further blurs the lines by invoking the fact that he was deposed in other litigation in 2QCi0, and is now being sought to be deposed again as "a second bite at the apple." (see, ]Paragraph #12(b) of Lake's motion); to the contrary, the undersigned's Reply points out that the deposition of Mr. Lake is sought in the pending matter at this time for testimony which is reasonably believed to be relevant, probative, and material to the pending mc-tion to disqualify MLB and Martson. 16. In reconsideration, the court should take notice that Lake's motion makes the self- serving proposition that the subpoena was served strictly to "vex, annoy and harass" him, Pennsy Supply, Inc., and/or his son, Randy Lake, and that it "appeazs to be a personal attack." (see, Paragraphs #9 and 12(d) of Lake's motion); to the contrary, the undersigned's Reply points out that the deposition of Mr. Lake is sought in the pending matter at this time for testimony which is reasonably believed to be relevant, probative, and material to the pending motion to disqualify MLB and Mazts~~n. 17. In reconsideration, the court should take notice that Lake's motion offers only the blanket statement that "Lake believes that he has no information or knowledge that would be remotely relevant to the matter now before the Court" in reference to the pending motion to disqualify Estate counsel (see, Pazagraph #8 of Lake's motion); to the contrazy, the undersigned's Reply points out that the deposition of Mr. Lake is sought in the pending matter at this time for testimony which is reasonably believed to be relevant, probative, and material to the pending motion to disqualify MLB and Martson. 18. In reconsideration, the court should take notice that, immediately before making the aforesaid blanket statement, Lake's motion incorrectly surmises ghat his deposition is being sought "in conjunction with a request from RMMII to disqualify the law firm of Morgan Lewis in the estate proceeding based on work by Morgan Lewis in the late 1980s." (see, Paragraph #7 of Lake's motion). Said supposition by Mr. Lake is clearly inaccurate factually inasmuch the pending motion to disqualify the Estate counsel is premised on far greater grounds than just work performed by MLB in the late 1980s. 19. Pa. R.C.P. 4007.1(c) provides that a party who notices a deposition of a witness is not required to divulge beforehand the purpose of the deposition and the matters to be inquired into. 20. Generally, discovery is to be liberally allowed with respect to any matter, not privileged, which is relevant to the cause being tried. PECO Energy Co. v. T~TA, 852 A.2d 1230 (Pa. Super. 2004). 21. The purpose of the discovery rules is to prevent surprise and unfairness and to allow a fair trial on the merits. McGovern v. Hosp. Service Ass'n., 785 A.2d 1012 (Pa. Super. 2001); see also, Stern v. Vic Snyder, Inc., 473 A.2d 139 (Pa. Supf;r. 1984) (courts are to insure adequate discovering of matters allowed by the Rules of Ciivil Procedure). 22. Court orders which restrict or prohibit discovery constitute state action which is subject to constitutional limitations. Stenger v. Lehi Valley Hosp., 609 A.2d 796, 801, n. 8 (Pa. 1992) (citing Seattle Times Co. v. Rhinehart, 467 U.S. 20, 1(14 S. Ct. 2199, 81 L. Ed.2d 17 (1984)). 23. As summarized hereinabove at Pazagraph #2(f), one central argument advanced in seeking the disqualification of MLB and Martson concerns the acquisition of and disposition of various assets, interests, and property allegedly belonging to the Estate, and subsequent actions taken with respect thereto in spite of the contested nature of any right to claim same as an Estate asset. It is reasonably believed that Mr. Lake's deposition testimony would be relevant, probative, and material with respect. to this particulaz aspect of the pending motion. 24. Specifically with respect to this particulaz aspect of the pending ciisqualification motion, it is believed that Mr. Lake's deposition testimony would be relevant, probative, and material with respect to questions pertaining to Estate ownership interests in the Silver Springs Quarry. Furthermore, said testimony could be elicited wi'.thout encroaching upon the various concerns raised by Lake's counsel in the motion to quash the subpoena. (See, WHEREFORE clause hereinbelow). 25. The deposition to be taken of Mr. Lake is permitted by Pa. 4003.1 (a) which provides that a party may obtain discovery regarding any matter, not privileged., which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, content, custody, condition and location of any books, documents or other tangible things and the identity and location of persons having knowledge of any discoverable matter. 26. The deposition to be taken of Mr. Lake is not sought in bad faith„ nor would it violate any of the other proscriptions set forth in Pa. R.C.P. 4011. 27. The undersigned has not obtained the concurrence of counsel to tl~e other interested parties inasmuch as the prior statements and representations of said counsel have indicated that the undersigned would not receive cooperation fronn them with respect to such a motion. 28. The Honorable J. Wesley Oler, Jr., has previously ruled on prior rnotions filed in this case. WHEREFORE, the undersigned respectfully requests that this Honorable Court reconsider its Order of November 5, 2008, and that this Court issue an appropriate order which permits the deposition of Harry G. Lake, Jr. to proceed. Without such reconsideration, the undersigned will be unable to comply with this Court's Order dated August 28, 2008. Moreover, the determination set forth in this Court's Order of November 5, 2008 that the undersigned was required to specify the relevance of the testimony of Mr. Lake to the issue of the disqualification of Estate counsel is not supported by the Rules of Civil Procedure and the other authority cited hereinabove, especially when. the ultimate effect of said Order was to foreclose the taking of the deposition in toto. In the alternative, this Caurt should permit the taking of Mr. L,ake's deposition subject to such limitations it may deem necessary (such as those proposed by Lake's counsel in the motion to quash the subpoena, i.e., no inquiry into areas already cove;red in the prior deposition of Mr. Lake taken on March 20, 2000, no questions related to corporate filings in 1982, etc.). Respectfully submitted, Robert M. Mumma, II Box F Grantham, PA 1702:7 (717) 612-9720 PROSE CERTIFICATE OF SERVICE I, Robert M. Mumma, II, pro se, do hereby certify that I caused a copy of the foregoing Motion for Reconsideration of the Orphan's Court Order Dated November 5, 2008 to be served this date by U.S. Mail, first class, postage prepaid, addressed to: Michael A. Finio, Esquire Matthew M. Haar, Esquire Saul Ewing LLP 2 North Second St. - 7th Floor Harrisburg, PA 17101 George B. Faller, Jr., Esquire No V. Otto, III, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 Brady Green, Esquire Morgan, Lewis & Bockius, LLP 1701 Market Street Philadelphia, PA 19103-2921 Ralph Jacobs, Esquire 1515 Market Street -Suite 705 Philadelphia, PA 19102 Linda Mumma Roth PO Box 480 Mechanicsburg, PA 17055 Joseph D. Buckley, Esquire Court-Appointed Auditor 1237 Holly Pike Carlisle, PA 17013 ~~ DATE: November ~ 2008 ~, Robert IVI. Mumma, II Box F Grantham, PA 17027 717-612-9720 PRO S~;