HomeMy WebLinkAbout01-13-09 (2)IN RE: ESTATE OF IN THE COURT OF COMMON PLEAS OF
ROBERT M. MUMMA, CUMBERLAND COUNTY, PENNSYLVANIA.
Deceased
ORPHAN'S COURT DIVISION
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TAKING AN INTERLOCUTORY APPEAL UNDER 42 PA. C.S.A. ~702(b)
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:
1. 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 Martson Law Office ("Martson"
hereinafter) from Continuing Legal Representation of the Estate and the Trusts.
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. 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 ... ".
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 the
undersigned Movant is not entitled to the relief requested in the pending motion to disqualify
MLB and Martson 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 ... ".
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 within 21 days of the order.
7. 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.
8. 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 should have been entered
pursuant to Pa. 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."; 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.
9. Accordingly, 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; 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. 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.";
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."
11. 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.
12. 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. Said Order did not set forth any
reasons underlying the denial, nor was it accompanied by a discursive opinion issued by Judge
Oler which explained his reasons for denying the Motion to Strike.
13. 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 to
Strike the Answer.
14. Said Motion for Reconsideration once again pointed out that Judge Oler had
failed or neglected to issue the appropriate Order called for in Pa.R.C.P. 206.7(a),
notwithstanding the undersigned's request to do so via the Motion for Entry of Rule 206.7(a)
Order filed of record with this Court on November 21, 2008.
15. On January 8, 2009, Judge Oler issued an Order which denied the 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.
16. The failure of Judge Oler to issue the appropriate Order under Pa.R.C.P. 206.7(a),
and the failure of Judge Oler to strike the Answer to the Motion for Entry of a Rule 206.7(a)
Order to the extent it may serve as the filing of a late answer on behalf of the said law firms to
the Rule to Show Cause Order of August 28, 2008, constitute controlling questions of law in this
case as to which there is a substantial ground for difference of opinion.
17. 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"
18. 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 proceed in accordance with the express language of
Pa.R.C.P. 206.7(a) may materially advance the ultimate determination of this matter.
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.
Respectfully submitted,
R~~~~~~~~.~
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:
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 13, 2009 BY: ~~'~~'~~~~'2~''~~
Robert M. Mumma, II
Box F
Grantham, PA 17027
717-612-9720
PROSE