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Home My WebLink About04-21-09~.~., ~~ - _ ~ .- ` - I„ IN RE: ESTATE OF IN THE COURT OF COMMON PLEAS OF ROBERT M. MUMMA, ~E "~ ~ 'i- CUMBERLAND COUNTY PENNSYLVANIA Deceased C~,' '," -- . .. , r,T R OI~HAN'S COURT DIVISION NO. 21-86-398 RESPONSE OF ROBERT M. MUMMA II TO THE EMERGENCY MOTION OF MORGAN, LEWIS & BOCKIUS LLP TO QUASH SUBPOENAS DIRECTED TO FORMER LITIGATION COUNSEL OF BARBARA MCK. MUMMA AND LISA M. MORGAN AND NOW, comes Robert M. Mumma, II, pro se, (the "Respondent" hereinafter) who responds as follows to the Emergency Motion of Morgan, Lewis & Bockius LLP to Quash Subpoenas to Attend and Testify directed to Thomas Kittredge and Marc Sonnenfeld, and in support thereof avers as follows: 1. Admitted in part; denied in part. It is admitted Paragraph 1 contains a selected quote of a passage from Pa.R.C.P. 234.4(b); however, said Rule specifically mandates that the Court can protect a witness from `unreasonable annoyance, embarrassment, oppression, burden or expense' only "After hearing, ...." By way of further response, the Court has not scheduled and noticed a hearing as required under Pa.R.C.P. 234.4(b). By way of further response, it is Denied that the subpoenas served will subject the said two (2) witnesses to `unreasonable annoyance, embarrassment, oppression, burden or expense' by requiring them to testify to limited areas of inquiry at the Auditor's hearing, and to do so in a modest time period of an hour or so. 2. Admitted as stated. 3. Admitted in part; denied in part. It is admitted that said two (2) witnesses each at one time have served as counsel to the Executrices. Said retention serves as a basis for the service of the instant subpoenas. By way of further response, the Respondent has no way of knowing when said two (2) witnesses last performed legal work for the Executrices and/or the nature of any such legal work performed, nor is the last date of the rendering of such legal services dispositive given that this Estate administration has remained pending for 23 years and given that said two (2) witnesses are members of Morgan, Lewis & Bockius which serves as Estate counsel. 4. Denied as stated. By way of further response, a litigant serving a subpoena to attend and testify is not obligated beforehand to provide an indication as to what testimony is intended to be presentedl,Z,3 nor is the taking of a deposition required prior to service of a subpoena. By way of further response, see response above at Paragraph 3 which is incorporated herein. 1 During a conference call on Friday afternoon, April 17, 2009, that was initiated by the Auditor, the Respondent advised that the testimony intended to be presented with respect to Mr. Kittredge concerned said counsel's role in presenting evidence to the Court in prior proceedings which resulted in the disposition, conveyance, or transfer of certain assets into or out of the Decedent's Estate. Said presentation of evidence concerned the fact that counsel submitted copies of an MRA agreement purportedly executed by the undersigned, and during the course of said prior proceedings, said counsel heard the undersigned testify that he had not signed said copy of the MRA agreement. Subsequently, as a result of reviewing Estate records later produced by Morgan, Lewis & Bockius ("MLB"), the notarized original MRA Agreements were discovered and same did indeed reveal that they were never signed by the undersigned. Hence, said originals not only corroborated the undersigned's prior testimony, but if they had been produced by MLB during the prior proceedings same would have refreshed the recollection of Barbara Mann Mumma and Linda Roth Mumma. Given the Estate counsel's role both in the prior proceedings and in the administration of the Decedent's Estate, and the eventual disposition, conveyance, or transfer of assets, the testimony of Mr. Kittredge under oath would be relevant, material, and probative with respect to the inventory and accounting in this Estate, notwithstanding other claims concerning the withholding of evidence by MLB. Z During a conference call on Friday afternoon, April 17, 2009, that was initiated by the Auditor, the Respondent advised that the testimony intended to be presented with respect to Mr. Sonnenfeld concerned said counsel's role in transactions pertaining to stock conveyances of 999, Inc. to the Estate which resulted in the disposition, 2 5. Admitted in part; denied in part. It is admitted that Mr. O'Connor's deposition occurred on October 27, 2009. Said deposition was punctuated by over 220 objections and instructions to Mr. O'Connor not to answer questions as interposed by Estate counsel. By way of further response, the absence or presence of Mr. O'Connor at the Auditor's hearing in no way governs the service of the subpoenas upon the said two (2) witnesses, nor is such an averment even relevant to an application of Pa.R.C.P. 234.4(b) as cited by Mr. Brenneman in the instant Emergency Motion. 6. See response above at Paragraph 3 which is incorporated herein. 7. Denied as stated. See response above at Paragraph 3 which is incorporated herein. By way of further response, the testimony intended to be presented from said two (2) witnesses is directly relevant to the first Auditor's hearing scheduled in the 23 year history of this case. By way of further response, if a specific question is objectionable pursuant to the attorney-client privilege, such an objection can be ruled upon by the Auditor at the hearing; a potential objection to a specific question is not grounds to quash a subpoena to attend and testify in its entirety. By conveyance, or transfer of certain assets into or out of the Decedent's Estate. Specifically, the Auditor was advised of a letter sent by said counsel to the U.S. Attorneys Office concerning transactions with 999, Inc. stock; Respondent advised the Auditor that the witness should be allowed to testify under oath as to the facts underlying the letter and the records upon which he relied in formulating the letter. Moreover, the witness should be allowec to testify as to the circumstances surrounding his forwarding of cancelled 999, Inc. stork to Respondent's prior counsel, Gerry Morrison, Esquire, especially as to the circumstances surrounding Mr. Sonnenfeld's possession of the stock in the first place. a By way of further response to the instant Emergency Motion, the undersigned previously identified the said two (2) witnesses in an email sent to the Estate counsel on March 19, 2009 (attached hereto as Exhibit 1). Said email included the subject line: "Notice to Witnesses." It clearly states that the said two (2) witnesses needed to be available at the Auditor's hearing, and further requested that Estate counsel advise immediately if there were any issues with same. No reply was ever received. 3 way of further response, such an averment is not relevant to an application of Pa.R.C.P. 234.4(b) as cited by Mr. Brenneman in the instant Emergency Motion. 8. Denied as stated. See response above at Paragraph 3 which is incorporated herein. By way of further response, the testimony intended to be presented from said two (2) witnesses is directly relevant to the first Auditor's hearing scheduled in the 23 year history of this case. By way of further response, if the testimony intended to be presented concerns events occurring during litigation for which the said two (2) witnesses served as litigation counsel but the matters never became part of the public record because said two (2) witnesses withheld evidence from the Court at that time (whether knowingly or not), then it would be impossible for the Auditor to take judicial notice thereof. By way of further response, the absence or presence of matters in the public record in no way mandates quashal of the subpoenas in their entirety, nor is such an averment even relevant to an application of Pa.R.C.P. 234.4(b) as cited by Mr. Brenneman in the instant Emergency Motion. 9. Denied as stated. See responses above at Paragraphs 3, 7, and 8 which are incorporated herein. 10. Denied as stated. See also response above at Paragraph 1 indicating that the testimony of the said two (2) witnesses could be limited to an hour or so. Respondent would have no objection if the Auditor directed said two (2) witnesses to appear at a designated time on any of the dates of the Auditor's hearing scheduled for Apri121 - 23, 2009. 1 1. No admission or denial required. Respondent answers that the matter requires disposition in accordance with Pa.R.C.P. 234.4(b). 4 12. Admitted. 13. Admitted. WHEREFORE, the Respondent respectfully requests that this Honorable Court deny the instant motion and issue an Order which directs the said two (2) witnesses to appear and testify for at least one hour on one of the three days set aside for the Auditor's hearing, i.e., on either Apri121, 22, or 23, 2009. Respectfully submitted, ,~ DATE: Sunday, April 19, 2009 ~G~. ' L~~~~,i~~L~~~- Robert .Mumma, II P.O. Box F Grantham, PA 17027 (717) 612-9720 PROSE 5 ~~'~~~'~ Page 1 of 1 Smatt?.o~e Cotes Center Collabo~at~n Suite Notice to wiles„ Fm~n: rrnmtw~maccaam To: Cc: Th~nsday, March 19, 2009 8:22:56 PM Brady, Please advise Lisa Dorgan, Kim Mwaoa, Jock O'Conaar, Mark Sonnenfeldt, David Landry. peen Sxartz, 3'in Kittridge, Cheryl Lexis George Hadley, Harry G Lake that they need to be available for the hearing. If there is any issue xith this please immediately advise me. Bob EXHIBIT 1 3/20/2009 CERTIFICATE OF SERVICE I, Robert M. Mumma, II, pro se, do hereby certify that I caused a copy of the foregoing Response to Emergency Motion to be served upon the following individuals by email on Sunday, April 19, 2009, and upon the filing with the Clerk of the Orphans' Court by U.S. Mail, first class, postage prepaid, addressed to: Keith Brenneman, Esquire Snelbaker & Brenneman 44 West Main Street Mechanicsburg, PA 17055 Brady Green, Esquire Morgan, Lewis & Bockius, LLP 1701 Market Street Philadelphia, PA 19103-2921 George B. Faller, Jr., Esquire No V. Otto, III, Esquire Manson 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: Sunday, April 19, 2009 BY: ;~~~,,,~~ ~~'~~~~ ZL~`7 Robert M. Mumma, II Box F Grantham, PA 17027 717-612-9720 PROSE