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HomeMy WebLinkAbout04-07-09IN RE: ESTATE OF : ROBERT M. MUMMA, : Deceased IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHAN'S COURT DIVISION N0.21-86-398 n ~ ~ O _. _, ~-~ - - __; , ---, ~ _~., _. '~ :::~ G ~ ~ ' Z ~ ___ ;. _i t ,' ~ ~ ~- _, _~ '.,,_, .~- MOTION TO STAY AUDITOR'S HEARING AND NOW comes Robert M. Mumma, II, pro se, and files the above-entitled motion, and in support thereof avers as follows: 1. The undersigned Movant is Robert M. Mumma, II, an adult individual, acting pro se, who is a beneficiary/remainderman of the above-captioned Estate and the Trusts created under the Will of the Decedent, as well as a trustee of contingent beneficiaries/remaindermen of the above-captioned Estate and Trusts, thereby having standing before the Orphans' Court. 2. Two other beneficiaries/remaindermen of the Estate and Trusts are Linda Mumma and Barbara Mann Mumma, same being parties to this action and also having standing before the Orphans' Court. 3. The Executrices/Trustees of the aforesaid Estate and Trusts are Lisa Mumma Morgan and Barbara McK. Mumma. 1 ,` 4. The Executrices/Trustees secured Morgan, Lewis & Bockius and The Martson Law Office as legal counsel in this Estate case. 5. The undersigned Movant and Barbara Mann Mumma (hereinafter the "Objectors") have filed objections to the accounts filed by the Estate counsel on behalf of the Executrices/Trustees. 6. On October 29, 2008, the Auditor conducted apre-hearing conference that included discussions regarding, inter alia, the status of discovery, the billing statements from the Estate counsel, the status of pending litigation, the disclaimer issue, and the need for additional discovery. See Auditor's opening comments at N.T. pp. 3-4. 7. On January 20, 2009, the Auditor issued a Notice of Auditor's Hearing which scheduled a hearing for Apri121, 22, and 23, 2009, and which required the Objectors to provide to the Auditor and to Estate counsel an outline of the specific issues to be resolved at said hearing. 8. On February 9, 2009, counsel for Barbara Mann Mumma forwarded a letter to the Auditor which outlined the specific issues as identified by said Objector (set forth in seven (7) enumerated paragraphs). 9. On February 10, 2009, the undersigned forwarded a letter to the Auditor which outlined the specific issues as identified by said Objector (set forth in forty-two (42) enumerated paragraphs). 2 10. On February 27, 2009, the Orphans' Court entered a three (3) page Order dated February 26, 2009 "with regard to the outstanding issues regarding discovery, evidence and procedures which all pertain to the Objections that have been filed to the Accounts filed at this docket." 11. The first four (4) subparagraphs of said Order were directed to the Counsel for the Executrices/Trustees as follows: *** Counsel for the Executrices/Trustees, to the extent that they have not previously so provided or made such documents available to the Objectors, shall provide all corporate minutes, by-laws, stock ledgers, and any other official corporate record generated by and held in the custody of the corporate secretary for any corporations over which the Estate and/or Trust has control or which the Estate and/or Trust has custody shall be produced and provided to Objectors within thirty (30) days of this Order. Counsel for the Executrices/Trustees shall disclose any and all foreign bank accounts, foreign safety deposit boxes, together with the status of Executrices/Trustees as shareholders to Objectors within ten (10) days of this Order. Counsel for the Executrices/Trustees, if they have not already done so, shall provide Objectors with redacted copies of their fees for professional services provided to the Estate and the Trust within ten (10) days of this Order. Counsel for the Executrices/Trustees shall afford Objectors, if Objectors desire, the opportunity to review any warehoused estate files and records at reasonable times Monday through Friday from 9:00 AM unti14:00 PM from the date of this Order until thirty (30) days hence. *** 12. In a letter dated March 9, 2009, the Estate counsel responded in writing with respect to tl~e second and third subparagraphs of the above quoted Order. II 3 1 ~. In their letter dated March 9, 2009, the Estate counsel responded to part of the second subparagraph of the Order by indicating that "Mrs. Mumma and Mrs. Morgan are not aware of any foreign bank accounts or safe deposit boxes owned by Robert M. Mumma, Sr., as of the date of his death." 14. The undersigned Objector avers that said response by the Estate counsel to the aforesaid part of the second paragraph of the Order is non-responsive and/or incomplete. 15. In their letter dated March 9, 2009, the Estate counsel further responded to another part of the second subparagraph of the Order that required the disclosure of the status of the Executrices/Trustees as shareholders by addressing the "interest" of Mrs. Mumma, Mrs. Morgan, and the Estate/Trusts in Middle Park, Inc., Bobali Corporation, Lebanon Rock, Inc., High-Spec, Inc., and Pennsy Supply Inc. 16. The undersigned Objector avers that said response by the Estate counsel to said part of the second paragraph of the Order is non-responsive and/or incomplete. 17. In their letter dated March 9, 2009, the Estate counsel further indicated in response to the third subparagraph of the Order that they had previously provided redacted copies of invoices under a cover letter dated November 3, 2006; no additional response to the third subparragraph of the Order was provided by the Estate counsel, nor did the Estate counsel indicate that any further response would be forthcoming, especially with respect to the 2 '/z years that have pissed since November 2006. 4 18. The undersigned Objector avers that said response by the Estate counsel to the third paragraph of the Order is non-responsive and/or incomplete. 19. With respect to the Estate counsel's response to the fourth subparagraph of the Order pertaining to the Objectors review of any warehoused Estate files and records, same was the subject of a prior Emergency Motion to Compel filed by the undersigned Objector on March 24, 2009 and a subsequent Rule To Show Cause Order issued by the Orphans' Court on Mazch 30, 2009. 20. With respect to the Estate counsel's response to the first subparagraph of the Order pertaining to the provision of corporate documents and records, the Estate counsel responded by delivering approximately eight (8) boxes of co ies of materials to the office of the undersigned Objector on or about Mazch 26, 2009; however, said Order does not mention copies, rather the Order specifies "all corporate minutes, by-laws, stock ledgers, and any other official corporate record" which are "held in the custody" of the corporate secretary. 21. The undersigned Objector avers that said response by the Estate counsel to the first subparagraph of the Order is non-responsive and/or incomplete. 22. At the Auditor's pre-hearing conference on October 29, 2008, the undersigned Objector provided the Auditor with a summary of the then-outstanding matters that had been previously referred by the Orphans' Court to the first-appointed Auditor (Attorney Andrews) for purposes of~an interim report and recommended order. See, Exhibit 1, N.T. p. 37 (said exhibit totaling apfroximately thirty (30) prior referral Orders issued by the Orphans' Court). 5 23. As summarized by the aforesaid Exhibit 1 submitted at the Auditor's pre-hearing conference, among those various matters previously referred by the Orphans' Court to the Auditor for purposes of an interim report or a recommended order were the following: A. Request for removal of the Executrices/Trustees filed on or about March 11, 2005; B. Request for an Order that the Estate has waived its right to contest the disclaimer with request for an immediate hearing filed on or about Apri122, 2005; C. Motion to compel inspection of all books and records filed on or about Aprii 29, 2005; D. Motion for sanctions for refusal to provide discovery pursuant to court order filed on or about May 9, 2005; E. Motion for reconsideration of auditor's discovery rulings in October 2005 filed on or about October 26, 2005; F. Petition for entry of date of deemed denial of exceptions under Pa.O.C.R. 7.1(f) filed on or about Apri12, 2008; G. Motion for a supplemental accounting filed on or about May 30, 2008; H. Motion for a supplemental inventory filed on or about May 30, 2008; I. Further motion for removal of the Executrices and Trustees filed on or about May 30, 2008; and, J. Further motion for jury trial filed on or about May 30, 2008; 24. The Auditor's hearing as scheduled for Apri121-23, 2009 must be stayed until the Auditor complies with those prior referral Orders which referred the above-summarized matters to him for purposes of an interim report and recommended order, inasmuch as same require disposition prior to any evidentiary-type hearing being conducted by the Auditor. 6 25. The March 30, 2009 Order cited hereinabove in Paragraph #19 has also referred the matter of the sufficiency of the Estate counsel's response regarding the warehoused Estate records and files to the Auditor for purposes of an interim report and recommended order, same requiring disposition prior to any evidentiary-type hearing being conducted by the Auditor. 26. Said matters previously referred to the Auditor for purposes of an interim report or recommended order require disposition prior to any evidentiary-type hearing inasmuch as those matters raise important, if not dispositive, issues; said issues would include, but not necessarily be limited to, the identity of the proper parties before the Auditor, the standing of the parties, the scope, nature, and limitation of issues to be presented to the Auditor, and the identity of Estate assets subject to inventory and accounting. 27. The disposition and/or resolution of such issues as raised by the aforesaid previously referred matters will impact or govern the proceedings before the Auditor, as well as subsequent review by the Orphans' Court and the Pennsylvania appellate courts, such that same require disposition prior to any evidentiary-type hearing. 28. In addition to the foregoing, the Objectors have not been provided with complete discovery necessary to proceed with an evidentiary-type hearing; for example, among the many items of discovery discussed at the Auditor's pre-hearing conference on October 29, 2008, the Objectors specifically sought production of the Decedent's correspondence files (N.T. 32-33) and life insurance policies (N.T. 55, 70-72, 75). 7 29. In consideration of the foregoing, the undersigned Movant seeks a stay of the Auditor's hearing scheduled for Apri121 - 23, 2009, and moves that said proceedings be continued: A. until such time as the Auditor issues an interim report or recommended order with respect to those matters previously referred to him by the Orphans' Court for said express purpose; B. until the Estate counsel fully complies with the Order entered on February 27, 2009 as written; C. until the Objectors have been provided with full and complete discovery; and, D. until otherwise necessary such that a meaningful evidentiary-type hearing can proceed which will be ripe for further review by the Orphans' Court and the Pennsylvania appellate courts, such that any further judicial or appellate review can proceed without the necessity of a remand or otherwise having to repeat said proceedings before the Auditor. 30. The Movant has not obtained the concurrence of the Estate counsel 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. 31. The Honorable J. Wesley Oler, Jr. has previously ruled on prior motions filed by the parties hereto. 8 WHEREFORE, based upon the reasons set forth hereinabove, the undersigned Movant respectfully requests that this Honorable Court issue an Order that stays the Auditor's hearing scheduled for April 21 - 23, 2009 and continues same: a. until such time as the Auditor issues an interim report or recommended order with respect to those matters previously referred to him by the Orphans' Court for said express purpose; b. until the Estate counsel fully complies with the Order entered on February 27, 2009 as written; c. until the Objectors have been provided with full and complete discovery; and, d. until otherwise necessary such that a meaningful evidentiary-type hearing can proceed which will be ripe for further judicial or appellate review without the necessity of a remand or otherwise having to repeat said proceedings before the Auditor. The Movant further respectfully requests that this Honorable Court rule on the instant Motion directly as this matter requires the immediate attention of this Honorable Court, and that the Orphans' Court depart from its prior practice of referring motions filed in this estate litigation to the Auditor for purposes of an interim report or recommended order given that such a referral in this instance would only further perpetuate the circumstances which have led to the necessity of seeking the instant Stay of proceedings. Respectfully submitted, DA'Z'E: April 7, 2009 ~j_ ~~i~~1~~~~~ ~,~" Robert M. Mumma, II~~ Box F Grantham, PA 17027 (717) 612-9720 PROSE 9 CERTIFICATE OF SERVICE I, Robert M. Mumma, II, pro se, do hereby certify that I caused a copy of the foregoing Motion 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: Apri17, 2009 Robert M. Mumma, II ~ Box F Grantham, PA 17027 717-612-9720 PROSE