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Home My WebLink About02-03-09IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA IN RE: ESTATE OF ORPHAN'S COURT DIVISION N ROBERT M. MUMMA, ~ ~ ~x-: -~ T, Deceased NO. 21-86-398 t~~ c7 ~ < <~, cs? ~ ~ ~- {`- G17X W '',_._, `~ -E7 ~ ~ . D C11 ~ ..F MOTION FOR RECONSIDERATION - °' OF THE ORPHANS' COURT ORDER DATED JANUARY 8 2009 AND NOW, comes Robert M. Mumma, II, pro se, who files the instant motion for reconsideration of the Orphans' Court Order dated January 8, 2009, 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 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 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. 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 October 7, 2008, the undersigned Movant filed a Reply to the New Matter of Barbara McK. Mumma and Lisa M. Morgan. 2 8. On October 17, 2008, the undersigned Movant filed a Response to the Executrices' Emergency for a Protective Order; same was filed after a Notice of Deposition was served upon Lisa M. Morgan. 9. Also on October 17, 2008, the undersigned Movant filed a Praecipe to enter the date of July 3, 2000 on the docket as the date of the deemed denial of the Exceptions filed on March 3, 2000; said Exceptions were to Judge Hoffer's opinion and order of February 23, 2000 which, inter alia, held (i) that the Executrices could not collaterally attack the court's prior order permitting the undersigned from revoking his disclaimer, and (ii) that the Estate was required to file an accounting within 90 days. 10. Also on October 17, 2008, the undersigned Movant filed a Notice of Appeal from the Orphans' Court Order dated September 19, 2008 which had denied the Further Motion for Recusal of Judge Oler; said Appeal remains pending before the Pennsylvania Superior Court at 1875 MDA 2008. 11. On October 23, 2008, the undersigned Movant filed a Response to the Motion of Harry G. Lake, Jr. to Quash a Subpoena or for a Protective Order; same was filed after a Notice of Deposition was served upon Mr. Lake. 12. 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. 3 13. On November 25, 2008, the undersigned Movant filed a Motion for Reconsideration of the Orphans' Court Order dated November 4, 2008 which had granted the Executrices' Emergency Motion for a Protective Order and which cancelled the deposition of Lisa M. Morgan. 14. Also on November 25, 2008, the undersigned Movant filed a Motion for Reconsideration of the Orphans' Court Order dated November 5, 2008 which had quashed the subpoena served upon Mr. Lake thereby cancelling his deposition. 15. 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. 16. On December 4, 2008, the undersigned Movant filed a Motion to Strike as untimely the 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. 4 17. Also on December 4, the undersigned Movant filed a "Further Motion Regarding Oral Argument Session of December 17, 2008" which included additional paragraphs listing grounds for the Court's consideration with respect to the propriety of proceeding with oral argument in this case which were not listed in the initial motion regarding said oral argument session. Included therein were additional paragraphs concerning the undersigned's attempts 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 was obstructed and hindered from 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. 18. On December 10, 2008, the undersigned filed a Brief in support of the Motion for Disqualification of MLB and Martson which listed the following questions presented: WHETHER THE INSTANT MOTION TO DISQUALIFY ESTATE COUNSEL MUST BE GRANTED AS A MATTER OF LAW UNDER RULE 1.9 GIVEN THAT THE ISSUES RAISED IN THE PENDING PROCEEDINGS ARE SUBSTANTIALLY RELATED TO COUNSEL'S PRIOR REPRESENTATION? WHETHER THE INSTANT MOTION TO DISQUALIFY ESTATE COUNSEL MUST BE GRANTED UNDER THE COURT'S EQUITABLE POWERS GIVEN THAT COUNSEL HAS SPEARHEADED CONSPIRATORIAL AND CRIMINAL ACTIVITIES DURING THE ESTATE ADMINISTRATION AND LITIGATION? WHETHER COUNSEL IS DISQUAFILIED FROM ANY PARTICIPATION 1N FURTHER ADJUDICATION OF THE INSTANT MOTION TO DISQUALIFY ESTATE COUNSEL BY OPERATION OF PA.R.C.P. 206.7(a)? 19. Said Brief also included an Appendix as Exhibit C which detailed the history of the various pleadings, motions, hearings, decisions, and appeals which transpired in the years that followed the undersigned's revocation of the disclaimer following Judge Sheely's rulings; said Appendix underscored the fact that the disclaimer issue has entirely permeated the subsequent Estate litigation and that it has been the Estate counsel who has been the proponent of continually injecting the disclaimer/revocation issues into the Estate litigation. 20. Said Brief also included a Synopsis as Exhibit D which surveys instances where the Estate counsel has pointed to the disclaimer (or to revocation issues associated therewith) during the course of its representation of its present client, the Executrices/Trustees. 21. Also on December 10, 2009, the undersigned Movant filed a Motion for an Evidentiary Hearing in order to obtain a court hearing (i) at which testimony and exhibits could be presented in accordance with the Rules of Evidence, and (ii) for testimony to be presented from witnesses before the Court in order to make the necessary credibility determinations, and in order for the witness to testify without being instructed not to do so by the Estate counsel. 22. On January 8, 2009, Judge Oler issued an Order which states in its entirety: "AND NOW, this 8th day of January, 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, the motion is denied. THE AUDITOR is requested to move with all deliberate speed to conclude these proceedings." BY THE COURT, J. Wesley Oler, Jr., J. 6 23. On January 9, 2009, the undersigned Movant filed a Motion for Reconsideration of the Orphans' Court Order dated December 15, 2008 which had denied the Motion for an Evidentiary Hearing. 24. Also on January 9, 2009, the undersigned Movant filed a Motion for Reconsideration of the Orphans' Court Order dated December 15, 2008 which had denied the Motion to Strike the Answer to Motion for Entry of a Rule 206.7(a) Order. 25. Also on January 9, 2009, the undersigned Movant filed a Motion for Clarification / Reconsideration of the Orphans' Court Order dated December 29, 2008 which had addressed those matters that could or could not be entered into evidence with respect to the pending Motion to Disqualify the Estate counsel. 26. In addition to the aforesaid Appeal pending before the Pennsylvania Superior Court at 1875 MDA 2008 concerning the recusal of Judge Oler and the scope /propriety of the Auditor's proceedings, there are also two additional Appeals pending at 99 MDA 2009 and at 100 MDA 2009. 27. On January 14, 2009, the undersigned Movant filed a Notice of Appeal from the Orphans' Court Order dated December 15, 2008 (One of Two) which had denied the Motion to Strike the Answer to Motion for Entry of a Rule 206.7(a) Order; said Appeal remains pending before the Pennsylvania Superior Court at 100 MDA 2009. 28. Also on January 14, 2009, the undersigned Movant filed a Notice of Appeal from the Orphans' Court Order dated December 15, 2008 (Two of Two) which had denied the Motion for an Evidentiary Hearing; said Appeal remains pending before the Pennsylvania Superior Court at 99 MDA 2009. 7 29. The Movant 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 Movant would not receive cooperation from them with respect to such a motion. 30. The Honorable J. Wesley Oler, Jr., has previously ruled on prior motions filed in this case; however, disposition of the instant motion for reconsideration is sought from the Court en banc. WHEREFORE, the undersigned Movant respectfully requests that this Honorable Court reconsider its Order of January 8, 2009, and that this Court issue an order which grants the instant Motion for Reconsideration of the Orphans' Court Order dated January 8, 2009, and that this Court further issues an order that grants the Motion to Disqualify the Estate Counsel filed on August 22, 2008. Respectfully submitted, ~~ d S Robert M. Mumma, II Box 58 Bowmansdale, PA 17008 (717) 612-9720 PRO SR s CERTIFICATE OF SERVICE I, Robert M. Mumma, II, pro se, do hereby certify that I caused a copy of the foregoing Motion for Reconsideration of Orphans' Court Order dated 01-08-09 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 151 S 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: February 3, 2009 BY: ~_ Robert M. umma, II Box F Grantham, PA 17027 717-612-9720 PROSE