HomeMy WebLinkAbout01-13-09IN 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
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AND NOW, comes Robert M. Mumma, II, pro se, and files the instant Application to
Amend Order of December 15, 2008 to add a certification pursuant to 42 Pa.C.S.A. §702(b),
thereby permitting an interlocutory appeal in the event said order is deemed by the Pennsylvania
Superior Court has not appealable under Pa. R.A.P. 313, and in support thereof avers as follows:
The undersigned Applicant is Robert M. Mumma, II, an adult individual, acting
pro se in the instant case, who is a beneficiary of the above-captioned Estate and a contingent
remainderman under the Trusts created under the Will of the Decedent. In addition, the
Applicant is a trustee of contingent beneficiaries / remaindermen under the above-captioned
Estate and Trusts.
2. On August 22, 2008, the undersigned Movant filed a Motion for Disqualification
of Morgan, Lewis & Bockius ("MLB" hereinafter) and The Manson Law Office ("Manson"
hereinafter) from Continuing Legal Representation of the Estate and the Trusts.
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DECEMBER 15, 2008 (Two of Two) TO CERTIFY FOR PURPOSES-~_'~:;
TAKING AN INTERLOCUTORY APPEAL UNDER 42 PA. C S A ~02(b)
3. On August 28, 2008, the Orphan's Court issued the following Order:
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;
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.
4. On September 18, 2008, Barbara McK. Mumma and Lisa M. Morgan filed an
Answer and New Matter; despite the instructions in Judge Oler's Order, 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. 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.
6. On November 26, 2008, an "Answer to Motion for Entry of Rule 206.7(a) Order"
was filed.
7. On December 4, 2008, the undersigned 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.
8. 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.
9. On January 9, 2009, the undersigned filed a Motion for Reconsideration of the
aforesaid December 15, 2008 Order pertaining to the Motion to Strike Answer to Motion for
Entry of Rule 206.7(a) Order.
10. 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.
11. 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 Martson, 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.
12. Although 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.), Judge Oler denied the Motions for Reconsideration in two separate Orders dated
December 15, 2008.
13. 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."
14. 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.
15. No reply or answer in opposition to the Motion for Evidentiary Hearing was filed
by any interested party or by the said law firms.
16. 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.
17. Also at Oral Argument on December 17, 2008, Judge Oler inquired as to why the
undersigned `did not depose himself. 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.
18. 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).
19. 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).
20. In Orders dated December 29, 2008 and January 6, 2009, Judge Oler has
precluded all parties from such further coordination of the evidence of record.
21. On December 15, 2008, Judge Oler issued an Order which Denied the Motion for
an Evidentiary Hearing.
22. 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.
23. In addition to the foregoing, Judge Oler's Orders have not allowed an evidentiary
hearing which 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 have: (a) 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; (b) 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, (c) 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.
24. On January 8, 2009, Judge Oler issued an Order which denied the Motion for
Disqualification of Morgan, Lewis & Bockius and The Martson Law Office from Continuing
Legal Representation of the Estate and the Trusts.
25. On January 9, 2009, the undersigned filed a Motion for Reconsideration seeking
the Court's reconsideration of the Order dated December 15, 2008 which denied the Motion for
Evidentiary Hearing
26. The failure of Judge Oler to allow an evidentiary hearing at which the
beneficiaries and remaindermen can present relevant, probative, and material evidence in support
of the Motion to Disqualify the Estate counsel constitutes a controlling question of law in this
case as to which there is a substantial ground for difference of opinion.
27. Likewise, the unconstitutional taking of property without due process of law
which has been and continues to be perpetrated against the beneficiaries and remaindermen (both
directly by the actions of the said law firms and indirectly by Judge Oler's Orders in this Estate
litigation) presents a controlling question of constitutional law which establishes grounds for
immediate appellate review.
28. Although the undersigned intends to file timely a Notice of Appeal under Pa.
R.A.P. 313 in the event the Pennsylvania Superior Court determines the Order of December 15,
2008 is an appealable collateral order, the instant application is being filed with respect to Pa.
R.A.P. 312 and 1311 which address "Interlocutory Appeals by Permission".
29. In the event it is determined that the Order of December 15, 2008 is not an
appealable collateral order, but rather it is determined that said order is interlocutory in nature
and must be appealed upon permission sought and granted, the granting of the instant
application to certify the order for purposes of taking an interlocutory appeal would be in the
interests of justice inasmuch as the order involves a controlling question of law as to which there
is substantial ground for difference of opinion, and an immediate appeal of the aforesaid issues
pertaining to Judge Oler's failure to allow an evidentiary hearing as requested by the
beneficiaries and remaindermen may materially advance the ultimate determination of this
matter, as would appellate review of the constitutional issues concerning the deprivation of
property without due process of law.
WHEREFORE, the undersigned respectfully requests that this Honorable Court amend its
Order of December 15, 2008 pursuant to 42 Pa.C.S.A. §702(b) to state that "the order involves a
controlling question of law as to which there is substantial ground for difference of opinion and
that an immediate appeal from the order may materially advance the ultimate determination of
this matter" thereby permitting the undersigned to take an immediate appeal therefrom.
Respect~f~ully submitted,
Robert M. Mumma, II
P.O. 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
Application to be served this date by U.S. Mail, first class, postage prepaid, addressed to:
Brady Green, Esquire
Morgan, Lewis & Bockius, LLP
1701 Market Street
Philadelphia, PA 19103-2921
George B. Faller, Jr., Esquire
No V. Otto, III, Esquire
Martson Law Offices
10 East High Street
Carlisle, PA 17013
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 13, 2009
BY: ~~~u~~~ ~
Robert M. Mumma, II
Box F
Grantham, PA 17027
717-612-9720
PROSE