The URL can be used to link to this page

Home My WebLink About01-09-09 (2)IN RE: ESTATE OF IN THE COURT OF COMMON PLEAS OF ROBERT M. MUMMA, CUMBERLAND COUNTY, PENNSYLVANIA Deceased ORPHAN'S COURT DIVISION NO. 21-86-398 MOTION FOR AN EVIDENTIARY HEARING -. o '-° 'J'c~ ~~, ~ tT ERD ~-, -ti -, -~ ; ~ OF'~T~IE ca ~.~} --~ -,~ _~. -~ - -; ., :? -.. -' ~_ :a -; -t~- --- ; -~~ (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 28th 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; iIATF.i) 1)FC'FMRF,R 15.2008 REGARDING THE DENIAL 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. 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 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. 8. On November 26, 2008, an "Answer to Motion for Entry of Rule 206.7(a) Order" was filed. 9. On December 4, 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 Martson 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. 10. On December 15, 2008, Judge Oler issued an Order which Denied the Motion to Strike Answer to Motion for Entry of Rule 206.7(a) Order. 11. On January 9, 2009, the undersigned Movant filed a Motion for Reconsideration of the aforesaid December 15, 2008 Order. 12. Also on December 4, 2008, the undersigned filed a Further Motion Regarding Oral Argument Session of December 17, 2008. Paragraphs #16(a) through (j) therein set forth multiple grounds for the Court's consideration with respect to the propriety of proceeding with oral argument in this case. Paragraphs #16(h) and #16(i) therein indicated that the undersigned's attempted good-faith examination of Mr. O'Connor who appeared for a deposition on October 27, 2008 was thwarted by counsel from MLB who registered dozens of objections and who likewise instructed the witness not to answer dozens of questions during the course of said deposition. 13. Paragraph #17 of the Further Motion Regarding Oral Argument Session of December 17, 2008 indicated that the undersigned had 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 Manson, but nonetheless has been hampered, obstructed, and hindered in doing so by virtue of (a) MLB's scuttling of 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's granting of 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. 14. The undersigned filed Motions for Reconsideration with respect to Judge Oler's Orders which cancelled the depositions of the two witnesses (Lisa M. Morgan and Harry G. Lake, Jr.); however, in Orders dated December 15, 2008, Judge Oler denied the Motions for Reconsideration. 15. 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. 16. On December 10, 2008, the undersigned filed a Motion for Evidentiary Hearing. Paragraph #26 therein stated: " In consideration of the foregoing Paragraphs #1 through #25, and in light of the need for the presentation of evidence of record upon which this Court can properly make a ruling as to the Motion For Disqualification of MLB and Martson From Continuing Legal Representation of the Estate and the Trusts, the beneficiaries and remaindermen seek an evidentiary hearing." 17. The Motion for Evidentiary Hearing further averred that such a hearing was required in order (i) to present testimony and exhibits in accordance with the Rules of Evidence; (ii) for testimony to be presented in good-faith from key witnesses; (iii) for testimony to be presented from properly subpoenaed witnesses; (iv) for testimony to be presented from witnesses before the Court in order to make the necessary credibility determinations; and (v) for witnesses to testify without being instructed not to do so by the Estate counsel. 18. It is believed and therefore averred that no reply or answer in opposition to the Motion for Evidentiary Hearing was filed by any party or by the said law firms. 19. On December 15, 2008, Judge Oler issued an Order which Denied the Motion for an Evidentiary Hearing. 20. At Oral Argument on December 17, 2008, Judge Oler questioned the parties about the status of the record and as to what compromised the record before him with respect to the pending Motion to Disqualify the Estate counsel. 21. At Oral Argument on December 17, 2008, Judge Oler inquired as to why the undersigned `did not depose himself 22. Following oral argument, the undersigned attempted to schedule his own deposition in accordance with Judge Oler's comments at Oral Argument. This deposition was quashed by Judge Oler in the Order dated December 29, 2008. 23. The undersigned also endeavored to comply with Judge Oler's statements at Oral Argument by coordinating the evidence of record to be before him for purposes of the disposition of the pending Motion to Disqualify the Estate counsel via the filing of multiple praecipes with the Clerk of the Orphan's Court in order to present documentary evidence and an affidavit from a witness. (E.g., see Praecipes filed on December 17, 2008 and on December 24, 2008). 24. The Estate counsel also sought to coordinate the evidence of record to be before Judge Oler for purposes of the disposition of the pending Motion to Disqualify the Estate counsel via the filing of a petition for judicial notice of certain matters. (See, Petition for Judicial Notice filed on December 24, 2008). 25. In subsequent Orders dated December 29, 2008 and January 6, 2009, Judge Oler has precluded all parties from such further coordination of the evidence of record. 26. Judge Oler's orders have precluded the undersigned from taking depositions of key witnesses, from presenting documentary evidence of record, from submitting an affidavit of a key witness, from participating in an evidentiary hearing where witnesses would be permitted to answer questions without the Estate counsel instructing them not to answer, and otherwise has restricted the manner and scope of the introduction and presentation of relevant and probative evidence in this case. 27. In addition to the foregoing, an evidentiary hearing is necessary in order to give the beneficiaries and remaindermen an opportunity to fully demonstrate the need to disqualify MLB and Martson from continuing legal representation of the Estate and the Trusts inasmuch as the said law firms (i) have embarked on a deliberate course of action during the long history of the instant case which has been devised to deplete, frustrate, and prejudice the interests of the beneficiaries and the remaindermen; (ii) have rendered legal advice and counsel to the Executrices/Trustees with respect to the 5% withdrawal rights under the Marital Trust, with the subsequent actions taken with respect thereto resulting in the continuing depletion, frustration, and prejudice of the interests of the beneficiaries and the remaindermen; and, (iii) have rendered legal advice and counsel to the Executrices/Trustees with respect to the acquisition of and disposition of various assets, interests, and property allegedly belonging to the Estate, in spite of the contested nature of any right to claim same as an Estate asset, whereby the interests of the beneficiaries and remaindermen have been converted and prejudiced. 28. 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. 29. The Honorable J. Wesley Oler, Jr., has previously ruled on prior motions filed in this case. 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 grants the Motion for Evidentiary Hearing to the extent that the beneficiaries and/or remaindermen may present evidence in support of the pending Motion to Disqualify the Estate Counsel. 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 1 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: ~~ Robert M. Mumma, II Box F Grantham, PA 17027 717-612-9720 PROSE