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HomeMy WebLinkAbout01-09-091N RE: ESTATE OF IN THE COURT OF COMMON PLEAS OF ROBERT M. MUMMA, CUMBERLAND COUNTY, PENNSYLVANIA Deceased -~ ORPHAN'S COURT DIVISION ~~ ~ :; , -: -~ ~ ~ r-> N0.21-86-398 ' -r.~ ~'' J~ ~ ' ;-:-~ _~; -,. _., - 7 _ ., ~, - _ __. MOTION FOR RECONSIDERATION OF THE ORPHAN'S COUI~3`p RDE~ ~; u~r - , DATED DECEMBER 15, 2008 REGARDING THE DENIAL OF THE MOTION TO STRIKE ANSWER TO MOTION FOR ENTRY OF RULE 206.7(a) ORDER (One of Four Orphan's Court Orders dated December 15, 2008) AND NOW, comes Robert M. Mumma, II, pro se, who files the instant motion for reconsideration of one of the four Orphan's Court Orders dated December 15, 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. Said motion for disqualification of Estate counsel resulted in the following Rule to Show Cause Order issued by Judge Oler: AND NOW, this 28t" 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; 5. 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. On September 18, 2008, Barbara McK. Mumma and Lisa M. Morgan filed an Answer and New Matter. Given the language in Paragraph #1 of Judge Oler's Order of August 28, 2008, it is believed and therefore averred that the aforesaid Answer and New Matter was filed by Barbara McK. Mumma and Lisa M. Morgan as "interested parties" inasmuch as said paragraph specifies that "a Rule is issued upon all interested parties and the said law firms to show cause why ...". 4. 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 the undersigned Movant is not entitled to the relief requested in the pending motion to disqualify MLB and Manson from continuing their representation of the Estate and the Trusts. Paragraph #1 of said Order specifies that "a Rule is issued upon all interested parties and the said law firms to show cause why ..:' 5. 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 within 21 days of the order. 6. 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. 7. As Paragraph #3 of Judge Oler's Order of August 28, 2008 specifies that this matter shall be governed under Pa. R.C.P. 206.7, an appropriate order is to be entered pursuant to I'a. R.C.P. 206.7(a) which provides: "If an answer is not filed, all averments of fact in the petition may be deemed admitted for the purposes of this subdivision and the court shall enter an appropriate order." 8. On November 21, 2008, the undersigned filed a Motion for Entry of Rule 206.7(a) Order which requested the Orphan's 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. Said Motion for Entry of a Rule 206.7(a) Order requested the court to perform the essentially ministerial act of entering the appropriate order called for in Pa.R.C.P. 206.7(a) when an answer is not filed. 10. Although Judge Oler has dutifully issued multiple Orders in this ongoing litigation over the past few weeks and months, the Orphan's Court has inexplicably neglected to comply with the express terms of Pa.R.C.P. 206.7(a) and has refused to issue the requisite Order. 11. On November 26, 2008, an "Answer to Motion for Entry of Rule 206.7(a) Order" was filed. Said Answer contained the following pertinent parts: a. The introductory paragraph of said Answer states: "Morgan, Lewis &Bockius ("Morgan Lewis") and The Martson Law Office (the "Martson 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 Martson Law Office from Continuing Legal Representation of the Estate and the Trusts."; b. Paragraph #7 of said Answer to Motion for Entry of Rule 206.7(a) Order states in relevant part as follows: "Admitted in part; denied in part. It is admitted that the Answer and New Matter were filed on behalf of the Executrices by their counsel. Any inference as to the intent of the Order or the Answer and New Matter is denied as those are writings which speak for themselves. By way of further response, neither Morgan Lewis nor the Martson 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." c. Paragraph #8 of said Answer states as follows: "Admitted in part; denied in part. See number 7, above."; d. Paragraph #9 of said Answer to Motion for Entry of Rule 206.7(a) Order states as follows: "Admitted in part; denied in part. See number 7, above."; e. The WHEREFORE clause of said Answer to Motion for Entry of Rule 206.7(a) Order states as follows: "WHEREFORE, Mrs. Mumma and Mrs. Morgan, along with their counsel, Morgan Lewis and the Martson Firm, respectfully and collectively request that Mr. Mumma, II's Motion for Entry of Order be denied." 12. On December 4, 2008, the undersigned filed a Motion to Strike the aforesaid Answer. Said Motion to Strike indicated that the Answer should be stricken because (i) the Answer was untimely under both Pa.R.C.P. 206.7 and Judge Oler's Order of August 28, 2008 as it pertained to the said law firms, and (ii) the Answer was an attempt by the said law firms to file a late Answer to the Rule to Show Cause under the guise of their legal representation of the Executrices/Trustees who had previously filed a timely answer on September 18, 2008 inasmuch as the Answer filed on November 26, 2008 purported to incorporate and adopt the statements and averments of the Executrices/Trustees. 13. On December 15, 2008, Judge Oler issued an Order which denied the Motion to Strike the Answer to Motion for Entry of a Rule 206.7(a) Order. 14. The instant Motion for Reconsideration is filed to seek the Court's reconsideration of the Order dated December 15, 2008 which denied the Motion to Strike the Answer; such reconsideration should include an examination of the following cogent points: a. The Answer filed on November 26, 2008, while so filed on behalf of the Executrices / Trustees directly in response to the Motion for Entry of a Rule 206.7(a) Order, also constitutes an impermissible attempt by the said law firms to file indirectly a late Answer to the Rule to Show Cause as ordered on August 28, 2008; b. Permitting such a late Answer by the said law firms on November 26, 2008 allows the said law firms to piggy-back a responsive filing to the Rule to Show Cause via their incorporation and adoption of the averments of the Executrices/Trustees' timely filed answer; c. Permitting such apiggy-back filing violates the 21 day period expressly delineated by Judge Oler in paragraph #2 of his Order dated August 28, 2008; d. Permitting such apiggy-back filing may possibly excuse the said law firms from their admitted violation) of paragraph #1 of this Court's Order dated August 28, 2008; e. Permitting such a late Answer by the said law firms on November 26, 2008 may possibly allow the said law firms to argue that it eliminates the `deemed admitted' application of Rule 206.7(a). 15. The undersigned has not obtained the concurrence of counsel to the other interested parties inasmuch as the prior statements and representations of said counsel have indicated that the undersigned would not receive cooperation from them with respect to such a motion for reconsideration. 16. The Honorable J. Wesley Oler, Jr., has previously ruled on prior motions filed in this case. ' Paragraph #7 of the Answer to Motion for Entry of Rule 206.7(a) Order admitted that the said law firms did not separately file a formal answer in response to the Rule to Show Cause Order of August 28, 2008. WHEREFORE, the undersigned respectfully requests that this Honorable Court reconsider its Order of December 15, 2008, and that this Court issue an appropriate order which strikes the Answer to the Motion for Entry of Rule 206.7(a) Order to the extent that it constitutes the filing of a late Answer on behalf of the said law firms to the Rule to Show Cause Order of August 28, 2008. 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 Motion 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: January 9, 2009 BY: ~~%r%~~1 Robert M. Mumma, II Box F Grantham, PA 17027 717-612-9720 PROSE