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IN RE: ESTATE OF _
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ROBERT M. MUMMA, CUMBERLAND COUNTY, PE _ ~,VAI~jIA ' ? '-r
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N0.21-86-398
FURTHER MOTION REGARDING ORAL ARGUMENT SESSION OF DECEMBER 17, 2008
SUPPLEMENTAL MOTION IN ADDITION TO MOTION FILED ON NOVEMBER 26, 2008
REGARDING SAID ORAL ARGUMENT SESSION
AND NOW, comes Robert M. Mumma, II, pro se, who files the instant Further Motion
Regarding Oral Argument Session of December 17, 2008 in supplement to the recent Motion regarding
said oral argument filed on November 26, 2008, and 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 Martson Law Office ("Martson" hereinafter)
from Continuing Legal Representation of the Estate and the Trusts.
2. On August 28, 2008, the Orphan's Court issued the following Order:
AND NOW, this 28`~ day of August, 2008, upon consideration of the Motion to
Disqualify Morgan, Lewis & 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;
Argument shall be held on Wednesday, December 17, 2008, 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 Oler, Jr., J.
3. In accordance with said Order of August 28, 2008, Barbara McK. Mumma and Lisa M.
Morgan filed an Answer and New Matter on September 18, 2008.
4. Despite the instructions in Judge Oler's Order of August 28, 2008, neither of the said law
firms, i.e., neither MLB nor Martson, on their own accord or via other counsel retained
by either of the said law firms, returned a rule to show cause why the relief requested
should not be granted, nor was an answer filed on behalf of either of the said law firms.
5. Despite the instructions in Paragraph # 1 of Judge Oler's Order of August 28, 2008,
neither of "the said law firms" responded to the rule returnable to show cause why
Movant is not entitled to the relief requested.
6. Despite the instructions in Paragraph #2 of Judge Oler's Order of August 28, 2008,
neither of "the said law firms" filed an answer to the motion either within 21 days of the
order or at any other time thereafter.
7. On November 21, 2008, the undersigned filed a motion entitled "Motion for Entry of a
Rule 206.7(a) Order". Said motion expressly relied upon Paragraph #3 of Judge Oler's
Order of August 28, 2008 which provided that the motion to disqualify Estate counsel
was to be decided under Pa. R.C.P. 206.7.
8. Said Motion for Entry of a Rule 206.7(a) Order requests the Court to enter an appropriate
Order under Pa. R.C.P. 206.7(a) given that all averments of fact in the motion to
disqualify Estate counsel shall be deemed admitted because the said law firms failed to
comply with the August 28, 2008 Order by not showing cause why the relief requested
should not be granted and by not filing an Answer on behalf of the said law firms.
9. Paragraph #7 of Judge Oler's Order of August 28, 2008 provides: "Pending argument and
further order of court, neither law firm is prohibited from continuing its representation of
record herein." Failure of the said law firms to comply with said Order now calls into
question whether the said law firms can continue its representation inasmuch as all
averments of fact in the motion to disqualify Estate counsel shall be deemed admitted
pursuant to Rule 206.7(a}.
10. Paragraph #5 of Judge Oler's Order of August 28, 2008 provides: "Argument shall be
held on Wednesday, December 17, 2008, at 11:00 a.m., in Courtroom No. 1, Cumberland
County Courthouse, Carlisle, Pennsylvania." Failure of the said law firms to comply
with said Order now calls into question whether or not said oral argument session can
proceed, andlor whether the said law firms can participate in said oral argument session
inasmuch as all averments of fact in the motion to disqualify Estate counsel shall be
deemed admitted pursuant to Rule 206.7(a).
11. On November 26, 2008, the undersigned Movant filed a "Motion Regarding Oral
Argument Session of December 17, 2008." The primary relief requested therein sought
cancellation of said oral argument session given the recently filed Motion for Entry of a
Rule 206.7(a) Order. In the alternative, the said Motion filed on November 26, 2008
requested that the Court identify those matters for proper argument in light of the said
law firms failure to comply with Judge Oler's Order of August 28, 2008, or that the Court
otherwise restrict the scope of those matters which can be presented for adjudication via
oral argument. Additionally, said Motion filed on November 26, 2008 sought the
alternative relief of a general continuance of oral argument pending resolution of the
Motion for Entry of a Rule 206.7(a} Order.
12. Also on November 26, 2008, an "Answer to Motion for Entry of Rule 206.7(a) Order"
was filed. The introductory paragraph of said Answer states: "Morgan, Lewis & Bockius
("Morgan Lewis") and The Manson Law Office (the "Manson Firm"), in addition to
Barbara McK. Mumma and Lisa M. Morgan respond as follows to the Motion of Robert
M. Mumma, II to disqualify Morgan, Lewis & Bockius LLP and The Manson Law
Office from Continuing Legal Representation of the Estate and the Trusts:".
13. Paragraph #7 of said Answer to Motion for Entry of Rule 20b.7(a) Order states in
pertinent part: "[N]either Morgan Lewis nar the Manson Firm, as non-parties, understood
the August 28, 2008 Order to place them under an obligation separately to file a formal
answer to the Robert M. Mumma, II's Motion. To the extent that the law firms were
under such obligation, both firms hereby incorporate and adopt statements and averments
of the Answer and New Matter of Mrs. Mumma and Mrs. Morgan as if fully set forth
herein."
14. The WHEREFORE clause of said Answer to Motion for Entry of Rule 206.7(a) Order
states: "WHEREFORE, Mrs. Mumma and Mrs. Morgan, along with their counsel,
Morgan Lewis and the Manson Firm, respectfully and collectively request that Mr.
Mumma, II's Motion for Entry of Order be denied."
15.On December 4, 2008 (i.e., the same date as the filing of the instant Further Motion
Regarding Oral Argument Session of December 17, 2008), the undersigned Movant filed
a Motion to Strike as untimely said Answer to Motion for Entry of Rule 206.7(a) Order to
the extent same was filed on behalf of MLB and Manson and to the extent said Answer
constituted an attempt by the said law firms to incorporate and adopt the statements and
averments of the Answer and New Matter of Mrs. Mumma and Mrs. Morgan as if fully
set forth therein, same being untimely under both Pa.R.C.P. 206.7 and Judge Oler's Order
of August 28, 2008.
16. The instant Further Motion is filed in supplement to the said Motion filed on November
26, 2408, and hereby sets forth the following additional reasons in support of the relief
requested with respect to the Oral Argument session of December 17, 2008:
(a) On September 18, 2008, Bazbaza McK. Mumma and Lisa M. Morgan filed an Answer
and New Matter to the Motion to Disqualify MLB and Martson from Continuing
Legal Representation of the Estate and the Trusts.
(b) Following the filing of the aforesaid Answer and New Matter (which triggered the
applicability of the deposition-taking provisions of Rule 206.7(c)), the undersigned
served subpoenas and notices of deposition upon Lisa M. Morgan, Joseph A.
O'Connor, Jr., Esquire, and Harry G. Lake, 3r. Said subpoenas and notices of
deposition were sent to all three of the proposed deponents on September 30, 2008.
(c) Following service of the subpoenas and the notices of deposition, all three of the
proposed deponents objected through their respective counsel by filing motions as
follows:
(i) On October 6, 2008, counsel for Lisa M. Morgan filed an emergency motion for
a protective order;
(ii) 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; and,
(iii) On October 7, 2008, counsel for Joseph A. O'Connor, Jr., Esquire filed an
emergency motion for a protective order.
(d) On October 8, 2008, Judge Oler granted the emergency motion of Joseph A.
O'Connor, 3r. and directed the parties to reschedule the deposition to a more
convenient time. Mr. O'Connor eventually appeared for a deposition on October 27,
2008 in Lemoyne, Pennsylvania.
(e) On November 4, 2008, Judge Oler issued an Order which granted Lisa M. Morgan's
Emergency Motion for a Protective Order and cancelled her deposition.
(f) On November 5, 200$, Judge Oler issued an Order which granted Harry G. Lake,
Jr.'s motion to quash the subpoena.
(g) On November 25, 2008, the undersigned filed Motions for Reconsideration with
respect to the aforesaid Orders of November 4, 2008 and November 5, 2008 which
cancelled the depositions of Lisa M. Morgan and Harry G. Lake, Jr., respectively. As
of the time of the filing of the instant Further Motion, said Motions for
Reconsideration have not been ruled upon.
(h) Although Mr. O'Connor appeared for a deposition on October 27, 2008, the
undersigned's attempted examination of said witness was thwarted by counsel from
Morgan, Lewis & Bockius who registered dozens of objections and who likewise
instructed the witness not to answer dozens of questions.
(i} Although the undersigned attempted to comply with Judge Oler's Order of August
28, 2008 by taking depositions in support of the Motion for Disqualification of MLB
and Martson from Continuing Legal Representation of the Estate and the Trusts, one
of those very same law firms thwarted his good-faith efforts at doing so by instructing
a deposed witness not to answer dozens of questions and by otherwise raising
objection after objection during the course of said deposition.
(j) The transcript of Mr. O'Connor's appearance for deposition on October 27, 200$ has
not yet been provided by the stenographer. Upon information and belief, the
preparation of said transcript has been delayed in part due to an interim illness of the
stenographer. It is not known whether said transcript will be available in time such
that same can be utilized in preparation of the parties' argument court briefs currently
due on December 9, 2008.
17. In support of the instant Further Motion, the undersigned avers that he attempted to
comply with Judge Oler's Order of August 28, 2008 by taking depositions in good-faith
in support of the said Motion for Disqualification of MLB and Martson, but nonetheless
has been hampered, obstructed, and hindered in doing so by virtue of the following two
primary reasons:
(a) counsel from MLB thwarted his good-faith efforts at deposing Mr. O'Connor by
instructing the witness not to answer dozens of questions, and by otherwise raising
objection after objection during the course of said deposition; and,
(b) Judge Oler has granted motions for protective orders for two (2) of the three (3)
witnesses whom the undersigned attempted to depose in good-faith in compliance
with the Order of August 28, 2008.
18. In support of the instant Further Motion, this Court must acknowledge that an appeal of
3udge Oler's Order of September 19, 2008 is currently pending before the Superior Court
of Pennsylvania; said appeal seeks, inter alia, the recusal or disqualification of Judge
Oler from these Estate proceedings.
19. This Court must grant the relief being requested herein because the grounds, purposes
and reasons for scheduling oral argument initially as was so provided in the August 28,
2008 Order are no longer applicable.
20. Said conclusion necessarily follows as the direct result of the fact that neither of the said
law firms, i.e., neither MLB nor Martson, on their own accord or via other counsel
retained by either of the said law firms, returned a rule to show cause why the relief
requested should not be granted, nor was an answer filed on behalf of either of the said
law firms.
21. The oral argument session contemplated by Judge Oler's Order of August 28, 2008 must
be re-evaluated inasmuch as all facts alleged in the Motion to Disqualify MLB and
Martson must be deemed admitted as a matter of law under Pa.R.C.P. 206.?(a).
22. The undersigned has not obtained the concurrence of counsel to the other interested
parties (or in this instance, from either of the said law firms) inasmuch as the prior
actions, statements and representations of said counsel (or in this instance, of either of the
said law firms) have indicated that the undersigned would not receive cooperation from
them with respect to the relief sought via the instant motion.
23. The Honorable J. Wesley Oler, Jr., has previously ruled on prior motions filed in this
case.
WHEREFORE, based upon the reasons set forth hereinabove, and as initially requested in
the first instance by the recent motion filed on November 26, 2008, the undersigned respectfully
requests that this Honorable Court cancel the oral argument session scheduled for December 17,
200$, or in the alternative, restrict matters presented for adjudication via oral argument inasmuch
as all facts alleged in the Motion to Disqualify MLB and Martson must be deemed admitted
under Pa.R.C.P. 206.7(a), or in the alternative, to continue generally oral argument in this case
pending resolution of the Motion for Entry of a Rule 206.7(a) Order or to continue generally to
such time as the undersigned can take meaningful and complete depositions of witnesses as was
originally permitted by the August 28, 2008 Order.
Respectfully submitted,
~~ ~ ; ~"
Robert M. Mumma, II
Box F
Grantham, PA 17027
(717)612-9720
PROSE
CERTIFICATE OF SERVICE
I, Robert M. Mumma, II, pro se, do hereby certify that I caused a copy of the foregoing
Further Motion Regarding Oral Argument Session of December 17, 2008 to be served this date
by U.S. Mail, first class, postage prepaid, addressed to:
George B. Faller, Jr., Esquire
No V. Otto, III, Esquire
Martson Law Offices
10 East High Street
Carlisle, PA 17013
Brady Green, Esquire
Morgan, Lewis & Bockius, LLP
1701 Market Street
Philadelphia, PA 19103-2921
Ralph Jacobs, Esquire
1515 Market Street -Suite 705
Philadelphia, PA 19102
Linda Mumma Roth
PO Box 480
Mechanicsburg, PA 17055
Joseph D. Buckley, Esquire
Court-Appointed Auditor
1237 Holly Pike
Carlisle, PA 17013
DATE: December 4, 2008 BY: ~~~~~~~~z~ ~~'~
Robert M. Mumma, II
Box F
Grantham, PA 17027
717-612-9720
PROSE