HomeMy WebLinkAbout03-26-09IN RE: ESTATE OF IN THE COURT OF COMMON PLEAS
ROBERT M. MUMMA, CUMBERLAND COUNTY, PENNSYLVANIA
Deceased
ORPHAN'S COURT DIVISION
NO. 21-86-398
ROBERT M. MUMMA, II'S CONCISE STATEMENT OF MATTERS
COMPLAINED OF ON APPEAL PURSUANT TO PA.R.A.P. 1925(b)
REGARDING THE APPEAL TO THE SUPERIOR COURT
270 MDA 2009 r
DOCKETED AT NO ~'
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ROBERT M. MUMMA, II
Box F
Grantham, PA 17027
(717) 612 - 9720
PRO SE
AND NOW, pursuant to Pa.R.A.P. 1925(b),1 comes Robert M. Mumma, II, pro se, the
Appellant in the appeal to the Superior Court docketed at No. 270 MDA 2009 who hereby files and
serves this Concise Statement of Matters Complained of On Appeal as so directed by the Orphans'
Court Order entered March 6, 2009;
For purposes of Pa.R.A.P. 1925(b)(4)(vi), the undersigned hereby prefaces this Rule 1925(b)
Statement by noting that those errors complained of as described in general terms herein have been so
identified in general terms to the extent the parties are unable to readily discern the basis for the
judge's decision, which is even more so since no discursive opinion was issued by the judge;
In support of the instant Statement of Matters Complained of On Appeal the undersigned
Appellant states as follows:
1. Judge Oler's Order of January 8, 2009 denying the Motion to Disqualify the
Estate counsel constitutes an error of law and an abuse of discretion given it reflects an
adjudication via atwo-sentence Order and was without a discursive opinion illuminating
whether the Judge undertook an adequate and comprehensive review and analysis of the
record, the factual issues, and the legal issues, or otherwise considered the specific issues
raised in the briefs filed subsequent to the Oral Argument session of December 17, 2008,
all of which require a judicial examination by the court which reveals the logical and
analytical explanations as to why the Judge issued his decision.
1 See, Pa.R.A.P. 1925(b)(4)(iv) as to non-waiver based upon the number of errors raised; see also, Eiser v.
Brown & Williamson Tobacco Corp., 938 A.2d 417 (Pa. 2007)(a party may in good faith believe that a
larger number of issues are worthy of pursuing on appeal; Supreme Court finds no waiver due to number
of issues in a Rule 1925(b) statement where appellant was not trying to thwart the appellate process,
where meaningful review was not impaired, where the lawsuit by all accounts is a complicated one, and
where the appeal otherwise complies with the mandates of the appellate process); see also, Ferris v.
Harkins. 940 A.2d 388 (Pa. Super. 2007); Donou~he v. Lincoln Elec. Co., 936 A.2d 52 (Pa. Super. 2007).
2. Judge Oler committed an error of law and an abuse of discretion by issuing
several Orders during the underlying proceedings prior to issuing the subject Order of
January 8, 2009:
a. Judge Oler committed an error of law and an abuse of discretion by
issuing his Order of November 4, 2008 that granted a motion for a protective order
thereby cancelling the scheduled deposition of Lisa Mumma Morgan;
b. In issuing said Order of November 4, 2008, Judge Oler committed an error
of law and an abuse of discretion by ruling that the Appellant "declined in his
response to the motion" to provide any basis for the taking of said deposition
inasmuch as the Appellant did indeed set forth various and diverse reasons as to the
necessity of taking Lisa Mumma Morgan's deposition;
c. Judge Oler committed an error of law and an abuse of discretion by
issuing his Order of November 5, 2008 that granted a motion to quash the
subpoena served upon Harry G. Lake, Jr. to attend a deposition thereby precluding
same;
d. In issuing said Order of November 5, 2008, Judge Oler committed an error
of law and an abuse of discretion by ruling that the Appellant "declined to specify
the relevance of the testimony" of Mr. Lake inasmuch as the Appellant did indeed
set forth various and diverse reasons as to the necessity of taking Mr. Lake's
deposition;
e. Judge Oler committed an error of law and an abuse of discretion by
issuing his Order entered December 16, 2008 that refused to grant reconsideration
of the Order of November 4, 2008 cancelling the deposition of Lisa Mumma
Morgan;
£ Judge Oler committed an error of law and an abuse of discretion by
issuing his Order entered December 16, 2008 that refused to grant reconsideration
of the Order of November 5, 2008 cancelling the deposition of Harry G. Lake, Jr.;
g. Judge Oler committed an error of law and an abuse of discretion by
issuing his Order entered December 5, 2008 that denied the Appellant's Motion
Regarding Oral Argument Session of December 17, 2008 filed on November 26,
2008;
h. In issuing the aforesaid Order entered December 5, 2008, Judge Oler
committed an error of law and an abuse of discretion in either not continuing or not
cancelling oral argument, or otherwise failing to address the import of the Estate
counsel's failure to file a rule or answer to the Motion to Disqualify Estate counsel,
in the context of the Motion for Entry of a Rule 206.7(a) Order filed on November
21, 2008;
Judge Oler committed an error of law and an abuse of discretion by
issuing his Order entered December 16, 2008 that denied the Appellant's Further
Motion Regarding Oral Argument Session of December 17, 2008 filed on
December 4, 2008;
j. In issuing the aforesaid Order entered December 16, 2008, Judge Oler
committed an error of law and an abuse of discretion by not taking into
consideration:
i. The Estate counsel's thwarting of the Appellant's good-faith
efforts at deposing Joseph O'Connor by instructing the witness not
to answer questions and otherwise interposing objections totaling
over 220 times during a deposition encompassing 134 pages;
ii. Judge Oler's granting of motions for protective orders for two (2)
of three (3) witnesses whom the Appellant attempted to depose in
good-faith compliance with the Order of August 28, 2008;
iii. The fact that an appeal was pending of Judge Oler's refusal to
recuse himself from these proceedings; and,
iv. The grounds, purposes, and reasons for scheduling oral argument
initially were no longer applicable given the Estate counsel's
failure to file a rule or answer to the Motion to Disqualify the
Estate counsel such that all averments of fact in said Motion to
Disqualify were to be deemed admitted against the said law firms
by operation of Pa.R.C.P. 206.7(a).
k. Judge Oler committed an error of law and an abuse of discretion by
issuing his Order entered December 16, 2008 that denied the Appellant's "Motion
to Strike Answer to Motion for Entry of Rule 206.7(a) Order" filed on December 4,
2008;
1. Judge Oler committed an error of law and an abuse of discretion by
issuing his Order entered December 16, 2008 that denied the Appellant's "Motion
for an Evidentiary Hearing" filed on December 10, 2008;
m. Judge Oler committed an error of law and an abuse of discretion by
issuing his Order entered December 23, 2008 that granted the Executrices' Motion
for a Protective Order concerning the Deposition Notice of the Appellant and
thereby cancelling the Appellant's deposition scheduled for December 24, 2008;
n. In issuing the aforesaid Order entered December 23, 2008, Judge Oler
committed an error of law and an abuse of discretion inasmuch as Judge Oler had
suggested to the Appellant during oral argument that the Appellant, pro se, should
have taken his own deposition during the proceedings, and inasmuch as Judge Oler
had issued an Order entered December 18, 2008 which allowed the parties to file
depositions within a seven (7) day period; and,
o. Judge Oler committed an error of law and an abuse of discretion by
issuing his Order entered December 29, 2008 that struck all court filings made
within the seven (7) day period set forth in the Order entered December 18, 2008;
Judge Oler committed an error of law and an abuse of discretion by failing to
dispose of the Motion for Entry of Rule 206.7(a) Order that was filed with the Orphans'
Court on November 21, 2008;
4. Judge Oler committed an error of law and an abuse of discretion by failing to
dispose of the Motion for Reconsideration of the Order entered December 16, 2008
(denying the Appellant's Motion for an Evidentiary Hearing) that was filed with the
Orphans' Court on January 9, 2009;
5. In failing to dispose of the aforesaid Motion for Reconsideration of the Order
entered December 16, 2008 (denying the Appellant's Motion for an Evidentiary
Hearing), Judge Oler committed an error of law and abuse of discretion:
a. in denying the beneficiaries an opportunity to present testimony and exhibits
in accordance with the Rules of Evidence;
b. in denying the parties the opportunity to create an appropriate and meaningful
record;
c. in refusing to recognize, via judicial notice or otherwise, matters already of
record as part of the underlying Estate case in the same county;
d. in admonishing a pro se litigant for not taking his own deposition, while
preventing said litigant from taking two of three depositions (with the third
deposition being obstructed by Estate counsel who repeatedly instructed the
witness not to answer questions); and,
e. in not allowing the parties to timely supplement the record in accordance with
the Judge's comments during oral argument?
6. Judge Oler committed an error of law and an abuse of discretion by failing to
dispose of the Motion for Reconsideration of the Order entered December 16, 2008
(denying the Appellant's Motion to Strike Answer to Motion for Entry of Rule 206.7(a)
Order) that was filed with the Orphans' Court on January 9, 2009;
7. In failing to dispose of the aforesaid Motion for Reconsideration of the Order
entered December 16, 2008 (denying the Appellant's Motion to Strike Answer to Motion
for Entry of Rule 206.7(a) Order), Judge Oler committed an error of law and abuse of
discretion:
a. in committing a reversible error of law by failing to enter the Order
mandated by Pa.R.C.P. 206.7(a);
b, in committing reversible error by failing to deem as admitted against the
Estate counsel the averments of fact in the Motion to Disqualify Counsel
in light of the said law firms failure to comply with Pa.R.C.P. 206.7(a) as
ordered;
c. in permitting the Estate counsel to piggyback a late Answer to the original
Motion to Disqualify Counsel via incorporating their reply into an Answer
filed months later in response to the Motion for Entry of a Rule 206.7(a)
Order; and,
Z Said issues were previously identified by the Appellant in the Civil Docketing Statement filed
with the Superior Court in an appeal taken of Judge Oler's Order denying the Motion for an
Evidentiary Hearing at 99 MDA 2009; to avoid piecemeal litigation, said appeal at 99 MDA 2009
was discontinued by the Appellant in order to pursue all such related issues via the instant appeal
at 270 MDA 2009.
d. in not addressing whether the beneficiaries have been denied due process
of law by the Orphans' Court's refusal to follow the Pennsylvania Rules of
Civil Procedure.3
Judge Oler committed an error of law and an abuse of discretion by failing to
dispose of the Motion for Clarification /Reconsideration of the Orphans' Court Order
dated December 29, 2008 that was filed with the Orphans' Court on January 9, 2009;
9. Judge Oler committed an error of law and an abuse of discretion by failing to
dispose of the Motion for Reconsideration of the subject Order dated January 8, 2009 that
was filed with the Orphans' Court on February 3, 2009;
10. Judge Oler committed an error of law and an abuse of discretion by failing to
grant the Motion to Disqualify the Estate counsel as a matter of law under Rule 1.9 of the
Rules of Professional Conduct given that the issues raised in the pending Mumma Estate
administration and litigation are substantially related to Morgan, Lewis & Bockius' prior
representation of the Appellant.4
3 Said issues were previously identified by the Appellant in the Civil Docketing Statement filed
with the Superior Court in an appeal taken of Judge Oler's Order denying the Motion to Strike
Answer to Motion for Entry of Rule 206.7(a) Order at 100 MDA 2009; to avoid piecemeal
litigation, said appeal at 100 MDA 2009 was discontinued by the Appellant in order to pursue all
such related issues via the instant appeal at 270 MDA 2009.
a See generally, Oral Argument Court Brief filed with the Orphans' Court on December 10,
2008, at pp. 8-23 and Exhibits A, B, C, and D attached thereto; see also, Appellant's Answer to
Rule to Show Cause filed with the Superior Court on March 23, 2009, at pp. 13-2b.
11. Judge Oler committed an error of law and an abuse of discretion by failing to
grant the Motion to Disqualify the Estate counsel as a matter of law under Rule 1.9 of the
Rules of Professional Conduct given that disqualification is automatic where the subject
matter of the two representations is identical, same being so in the case-at-bar in light of
the "disclaimer" issues which serve as the constant in both representations by Morgan,
Lewis & Bockius (i.e., the Appellant as their prior client, and the Executrices/Trustees as
their present client).5
12. Judge Oler committed an error of law and an abuse of discretion by failing to
grant the Motion to Disqualify the Estate counsel as is warranted by the Orphans' Court's
equitable power to remedy the conspiratorial and criminal activities spearheaded by the
Estate counsel during the Mumma Estate administration and litigation.b
13. Judge Oler committed an error of law and an abuse of discretion by failing to
grant the Motion to Disqualify the Estate counsel as is warranted by the Orphans' Court's
power to inquire into and determine all questions relating to the ownership, conversion,
and distribution of the property of the Decedent, and the rightful assets and interests of
the Estate, as same was orchestrated by the Estate counsel during the Mumma Estate
administration and litigation.
5 See generally, Oral Argument Court Brief filed with the Orphans' Court on December 10,
2008, at pp. 8-23 and Exhibits A, B, C, and D attached thereto; see also, Appellant's Answer to
Rule to Show Cause filed with the Superior Court on March 23, 2009, at pp. 13-26.
6 See generally, Oral Argument Court Brief filed with the Orphans' Court on December 10,
2008, at pp. 23-30; see also, Appellant's Answer to Rule to Show Cause filed with the Superior
Court on March 23, 2009, at pp. 27-33.
14. Judge Oler committed an error of law and an abuse of discretion by failing to
grant the Motion to Disqualify the Estate counsel as is warranted by the averments of
Paragraph #42 of the Motion to Disqualify the Estate counsel (same to be deemed
admitted under Pa.R.C.P. 206.7(a)) which indicate that, as a result of the legal advice
rendered by the Estate counsel to the Executrices/Trustees with respect to the 5%
withdrawal rights under the Marital Trust, and the subsequent actions taken with respect
thereto, the interests of the aforesaid beneficiaries and remaindermen have been and
continue to be depleted, frustrated, and prejudiced notwithstanding the legal and fiduciary
duties of the said law firms; nonetheless, the Motion to Disqualify the Estate counsel was
denied by Judge Oler notwithstanding the Orphans' Court's equitable powers to remedy
same.
15. Judge Oler committed an error of law and an abuse of discretion by failing to
grant the Motion to Disqualify the Estate counsel as is warranted by the averments of
Paragraph #43 of the Motion to Disqualify the Estate counsel (same to be deemed
admitted under Pa.R.C.P. 206.7(a)) which indicate that, as a result of the legal advice
rendered by the Estate counsel to the Executrices/Trustees with respect to the acquisition
of and disposition of various assets, interests, and property allegedly belonging to the
Estate, and the Executrices/Trustees subsequent actions taken with respect thereto in spite
of the contested nature of any right to claim same as an Estate asset, the interests of the
aforesaid beneficiaries have been and continue to be converted and prejudiced
notwithstanding the legal and fiduciary duties of the said law firms; nonetheless, the
Motion to Disqualify the Estate counsel was denied by Judge Oler notwithstanding the
Orphans' Court's equitable powers to remedy same.
16. Judge Oler's practices constitute an error of law and an abuse of discretion to the
extent that the Orphans' Court's supervision of the administration of the Mumma Estate
(and the manner in which the court's acts and/or omissions have enabled the Executrices /
Trustees, Morgan, Lewis & Bockius, and/or The Martson Law Office to utilize the court
system inappropriately) manifests violations of due process of law and unconstitutional
deprivations of the property interests of the beneficiaries and remaindermen.
DATE: March 26, 2009 Respectfully submitted,
ROBERT M. MUMMA, II -pro se
Box F
Grantham, PA 17027
(717) 612 - 9720
CERTIFICATE OF SERVICE
I, Robert M. Mumma, II, pro se, do hereby certify that I caused a copy of the
foregoing Rule 1925(b) Statement to be served on this date as follows:
BYU.S. Mail, first class, posta e 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
Joseph D. Buckley, Esquire
Court-Appointed Auditor
1237 Holly Pike
Carlisle, PA 17013
Linda Mumma Roth
PO Box 480
Mechanicsburg, PA 17055
By hand-delivering to Judge's Chambers /Secretary:
Honorable J. Wesley Oler, Jr.
Cumberland County Court House
Fourth Floor
High & Hanover Streets
Carlisle, PA 17013
DATE: March 26, 2009
BY:
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Robert M. Mumma, II
Box F
Grantham, PA 17027
717-612-9720
PROSE