Loading...
HomeMy WebLinkAbout04-21-09 (2) ~,1~ ~ -~~ ~ I ~ ~~ t ~ f 4 ,-, r _- C~a' ~ ~ ~~T ,r - - ~, IN RE: ESTATE OF IN THE COURT OF COMMON PLEAS OF ROBERT M. MUMMA, CUMBERLAND COUNTY, PENNSYLVANIA Deceased ORPHAN'S COURT DIVISION NO.21-86-398 RESPONSE OF ROBERT M MUMMA, II TO THE MOTION TO QUASH A SUBPOENA AND NOW, comes Robert M. Mumma, II, pro se, (the "Respondent" hereinafter) who responds as follows to the Motion to Quash a Subpoena filed on behalf of Dean Schwartz, and in support thereof avers as follows: 1. Admitted as stated. 2. Admitted. 3. Admitted in part; denied in part. It is admitted that service of the subpoena was not discussed with Mr. Connell; however, the Rules of Civil Procedure do not require a litigant to discuss service of a subpoena to attend and testify upon a person's counsel in other litigation.l 1 By way of further response to the instant Motion to Quash a Subpoena, the undersigned previously identified this witness 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 witness 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. Also, Mr. Connell makes no averment as to whether or not the Estate counsel followed up by notifying either Mr. Schwartz or Mr. Connell as to the undersigned's written notice to witnesses. 1 4. Denied. It is specifically denied that the subpoena is the latest effort to inconvenience and financially burden Mr. Schwartz and Stradley; strict proof thereof is demanded. By way of further response, said averment is self-serving, argumentative, vague, ambiguous, and legally insufficient such that no response is required and is therefore denied. 5. Admitted as stated, with the distinction made to Exhibit 3 as follows: the instant subpoena that Mr. Connell seeks to quash did not require Mr. Schwartz to bring any documents. As reflected by Mr. Connell's Exhibit 1, the instant subpoena was to attend and testify; it did not list any documents or things to be produced at the Auditor's hearing. By way of further response, the notice of deposition is in writing and speaks for itself. 6. Admitted as stated. By way of further response, the motion is in writing and speaks for itself. 7. Admitted as stated. By way of further response, the order is in writing and speaks for itself. 8. Admitted as stated. By way of further response, the transcript is in writing and speaks for itself. 9. Admitted as stated. By way of further response, the order is in writing and speaks for itself. 2 10. Admitted as stated, with the distinction made to Exhibit 8 as follows: the instant subpoena that Mr. Connell seeks to quash did not require Mr. Schwartz to bring any documents. As reflected by Mr. Connell's Exhibit 1, the instant subpoena was to attend and testify; it did not list any documents or things to be produced at the Auditor's hearing. By way of further response, the notice of deposition is in writing and speaks for itself. 11. Admitted as stated. By way of further response, the motion is in writing and speaks for itself. 12. Admitted as stated. By way of further response, the order is in writing and speaks for itself. 13. Admitted as stated. By way of further response, the order is in writing and speaks for itself. 14. Admitted as stated. By way of further response, the letter is in writing and speaks for itself. 15. Admitted as stated. By way of further response, the order is in writing and speaks for itself. 16. Admitted as stated, with the distinction made to Exhibit 14 as follows: the instant subpoena that Mr. Connell seeks to quash did not require Mr. Schwartz to bring any documents. As reflected by Mr. Connell's Exhibit 1, the instant subpoena was to attend and testify; it did not list any documents or things to be produced at the Auditor's hearing. By way of further response, the notice of deposition is in writing and speaks for itself. 3 17. Admitted as stated. By way of further response, the letters are in writing and speak for themselves. 18. Admitted as stated. By way of further response, the letter is in writing and speaks for itself. 19. Admitted as stated. By way of further response, the letter is in writing and speaks for itself. 20. Admitted as stated, with the distinction made to Exhibit 20 as follows: the instant subpoena that Mr. Connell seeks to quash did not require Mr. Schwartz to bring any documents. As reflected by Mr. Connell's Exhibit 1, the instant subpoena was to attend and testify; it did not list any documents or things to be produced at the Auditor's hearing. By way of further response, the fax transmittal sheet and the notice of deposition are in writing and speak for themselves. 21. Admitted as stated. By way of further response, the letter is in writing and speaks for itself. 22. Admitted as stated. By way of further response, the praecipe is in writing and speaks for itself. 23. Admitted as stated. 24. Admitted as stated. By way of further response, the letter is in writing and speaks for itself. 4 25. Admitted as stated. By way of further response, the letter is in writing and speaks for itself. 26. Admitted as stated. By way of further response, the petition and order are in writing and speak for themselves. 27. Denied as stated. By way of further response, the developments in another action involving disparate parties and docketed under another term and number in the Court of Common Pleas does not govern the instant subpoena duly issued by the Orphans' Court regarding the first Auditor's hearing scheduled in the 23 year history of this case. Strict proof to the contrary is demanded. By way of further response, said averment is self-serving, argumentative, vague, ambiguous, and legally insufficient such that no response is required and is therefore denied. 28. See response above at Paragraph 27 which is incorporated herein. 29. See response above at Paragraph 27 which is incorporated herein. 30. See response above at Paragraph 27 which is incorporated herein. 31. Denied. By way of further response, a litigant serving a subpoena to attend and testify is not obligated to take a deposition of the witness prior to service of a subpoena. By way of further response, said averment is self-serving, argumentative, vague, ambiguous, and legally insufficient such that no response is required and is therefore denied. 5 32. Denied. By way of further response, a litigant serving a subpoena to attend and testify is not obligated to have discussions with the witness prior to service of a subpoena. By way of further response, said averment is self-serving, argumentative, vague, ambiguous, and legally insufficient such that no response is required and is therefore denied. 33. Denied. After reasonable investigation, the Respondent is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments concerning Mr. Schwartz's mobility and related health and travel issues; strict proof is demanded. By way of further response, Paragraph 2 of Mr. Schwartz's Affidavit (attached to the Motion to Quash as Exhibit 27) specifically supports the service of the instant subpoena. See Response and Footnote below at Paragraph 35. 34. Denied as stated. By way of further response, the Respondent has no way of knowing when said witness last performed legal work related to matters referred to the Auditor 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 case has remained pending for 23 years and given that the testimony intended to be presented from said witness is directly relevant to the first Auditor's hearing scheduled in the 23 year history of this case. See Response and Footnote below at Paragraph 3 5. 6 35. 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 presented.2 36. Denied. It is specifically denied that the subpoena is any sort of fishing expedition; strict proof of the averments in Paragraph 36 is demanded. By way of further response, said averment is self-serving, argumentative, vague, ambiguous, and legally insufficient such that no response is required and is therefore denied. 37. Denied. Strict proof of the averments in Paragraph 37 are demanded. By way of further response, said averment is self-serving, argumentative, vague, ambiguous, and legally insufficient such that no response is required and is therefore denied. 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. Schwartz concerned said counsel's role in formulating a letter or memo which ultimately resulted in the disposition, conveyance, or transfer of certain assets into or out of the Decedent's Estate. Moreover, said letter or memo specifically cautioned that the Executrices' position was not supported by his review of the applicable records and documents. Respondent further advised the Auditor that the witness should be allowed to testify under oath as to the facts underlying the letter or memo and the records upon which he relied in formulating same. In addition, it was represented that the witness should be examined under oath as to subsequent alteration of the records and documents. Moreover, the witness should be allowed to testify as to the circumstances surrounding his possession or his firm's possession of 999, Inc. stock certificates, and especially how same were inexplicably delivered to a meeting held in Washington, D.C. that ultimately determined the conveyance, sale, or transfer of certain assets into or out of the Decedent's Estate. Given counsel's role in the disposition of the Mumma family businesses as admitted in his affidavit and given his relationship with Estate counsel and their collective activities regarding the eventual disposition, conveyance, sale, or transfer of assets, the testimony of Mr. Schwartz under oath would be relevant, material, and probative with respect to the inventory and accounting in this Estate. 7 WHEREFORE, the Respondent respectfully requests that this Honorable Court deny the instant motion and issue an Order which directs the said witness 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, r DATE: Sunday, April 19, 2009 ~~'t~~~~~~~Z'~~7• Robert M. Mumma, II P.O. Box F Grantham, PA 17027 (717) 612-9720 PROSE 8 7~mbra: jg~lt~co.net Sm~tZo~e Cuter Collabor- Suite Notice to witnesses. Fi+o®: rmmt~n®mscc~am To: bmor~aniewiecom Page 1 of I jgg~a~lt®vomcast.uet Thaursday, March ~9, 2009 8:22:56 PM Cc: ~~wo(c~COacc:om; jg~ueaetne~t Brady, Please advise Lisa Morgan, Rfm Mums, Jock O'Connor, Mark Sonnenfeldt, David Landry. Dean Swartz. 43n ICittridge, Cheryl Kris George Hadley, Harry G Lake that they need to be available for the h®aring. if there is any issue with this please isadediately advise sie. Bob EXHIBIT 1 3f20/2009 CERTIFICATE OF SERVICE I, Robert M. Mumma, II, pro se, do hereby certify that I caused a copy of the foregoing Response to Motion to Quash a Subpoena 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: Richard E. Connell, Esquire Ball, Murren & Connell 2303 Market Street Camp Hill, PA 17011 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 BY: G~- ~L~,GZ. ~L DATE: Sunday, April 19, 2009 Robert M. Mumma, II Box F Grantham, PA 17027 717-612-9720 PROSE