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Home My WebLink About08-04-09George B. Faller, Jr., Esquire I.D. No. 49813 No V. Otto, III, Esquire I.D. No. 27763 Jennifer L. Spears, Esquire I.D. No. 87445 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Barbara McK. Mumma and Lisa M. Morgan IN THE COURT OF COMMON PLEA o` ~ - ~, ;.4 IN RE: OF CUMBERLAND COUNTY, PENNS~>~J~NI~"' ~~- F _, f . , ~ ~ r._... c~ <_ Estate of Robert M. Mumma, ~_; , ~ .~-- , _ } .,~ ;~~~ .: ~.. , NO. 21-86-398 c,~ ~ c~ s~ ` ~ ~` Deceased. ORPHANS' COURT DIVISION ~~~ `'~ =~~ ~ •~~~~ ~ -" _ .: ,, r..... •• ~' r..l EXECUTRICES' RESPONSE TO MOTION OF BARBARA M. MUMMA FOR LEAVE TO CALL EXPERT WITNESSES TO TESTIFY AT AUDITOR'S HEARING Barbara McK. Mumma and Lisa M. Morgan respond as follows to the Motion of Barbara M. Mumma for Leave to Call Expert Witnesses to Testify at Auditor's Hearing: 1. Admitted. 2. Admitted in part, denied in part. It is admitted that Barbara M. Mumma has raised objections to the accounts; however, her objections were presented in a writing which speaks for itself. 3. Denied as stated. To the contrary, Barbara M. Mumma and her counsel were required to produce expert reports disclosing the substance of and bases for any testimony that they anticipated or should have anticipated to support their objections and those expert reports were required to be filed within the Court's deadlines. Byway of further response, Ms. Mumma has objected to the length of time which it has taken to administer the estate. The Court, in an Order dated October 3, 2007, issued discovery deadlines that require discovery be completed by May 31, 2008, and all expert reports from Objectors be supplied by January 31, 2008. Indeed, the January 31, 2008 deadline was proposed by Ms. Mumma's counsel at the hearing before Judge Oler at which the schedule was established. 4. Denied. To the contrary, the Executrices have no way of knowing who the purported experts are or what they would say without production of reports, as required by the Rules of Civil Procedure, the Orphan's Court Rules and the Court's prior discovery Order. 5. It is admitted that Movant did not identify any expert witnesses prior to the deadline provided by this Court's Order of October 3, 2007. The purpose or requiring expert reports well in advance of hearings or trials is so that the parties can plan their case and narrow the issues. Late production of expert reports tampers the ability to proceed in a timely fashion and bring this matter to its desired conclusion. Ms. Mumma has not produced expert reports even though she identified one of her proposed experts - Mr. Haar - as a source of information regarding various topics during her deposition in mid-April 2009. At the April sessions of the hearing before the Auditor, Ms. Mumma's counsel disclosed the possibility that she might seek leave to present expert testimony. (See hearing testimony at Pages 541-543, Dearing Transcript Volume III, Apri123, 2009.) Her counsel then wrote to counsel for Mrs. Mumma and Mrs. Morgan on the subject on May 11, 2009, a copy of which is attached hereto as Exhibit "A." Counsel for Mrs. Mumma and Mrs. Morgan responded that Ms. Mumma should file a motion if she intended to attempt to present expert testimony, a copy of which is attached hereto as Exhibit "B." Nonetheless, almost three months passed before the instant motion was filed. No mention was made by Ms. Mumma's counsel during the June sessions of the hearing. Even at this late juncture, Ms. Mumma has not provided anything by way of specifics regarding the expert testimony she intends to offer, even though such specificity was called for, among other things, in discovery served on Ms. Mumma, as discussed at the April sessions of the hearings. More significantly, there is nothing to suggest, contrary to Ms. Mumma's suggestions in the instant motion, that any subject matter as to which she might offer expert testimony was in any way unknown to her or her counsel months or years prior to the deadline for submission of expert reports in this matter. In Gill v. McGraw Electric Co., 264 Pa. Super. 368 (1979), the Superior Court set forth a test to be used in consideration of whether counsel should be permitted to produce an expert report after the deadline set by the court had passed. The considerations in the four-factor test include: (1) the prejudice or surprise in fact of the party against whom the excluded witnesses would have testified, (2) the ability of that party to cure the prejudice, (3) the extent to which waiver of the rule against calling unlisted witnesses would disrupt the orderly and efficient trial of the case or of other cases in the court, and (4) bad faith of willfulness in failing to comply with the court's order. Clearly, the elements of surprise, prejudice and disruption to the Executrices and the trial are present and outweigh Ms. Mumma's desire at this late time in the proceedings to r produce expert testimony. Certainly disclosure of expert reports at this late juncture threatens to further delay these proceedings. 6. After reasonable investigation, the answering parties are without knowledge or information sufficient to form a belief as to the truth or falsity of these averments. 7. After reasonable investigation, the answering parties are without knowledge or information sufficient to form a belief as to the truth or falsity of these averments. 8. Denied as stated. To the contrary, Respondents are unable to answer this allegation in any meaningful fashion due to Movant's failure to comply with the Court's Order to produce the expert reports. WHEREFORE, Mrs. Mumma and Mrs. Morgan respectfully request that Barbara M. Mumma's Motion for Leave to Call Expert Witnesses to Testify at Auditor's Hearing be denied. MARTSQN LAW OFFICES George B. aller, Jr., Esquire I.D. No. 49813 No V. Otto, III, Esquire I.D. No. 27763 Jennifer L. Spears, Esquire I.D. No. 87445 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Date: August 4, 2009 Attorneys for Barbara McK. Mumma and Lisa M. Morgan Page 1 of 1 Jennifer L. Spears From: Ralph Jacobs [RJacobs@jacobs-singer-law.comj Sent: Monday, May 11, 2009 4:07 PM To: Green, Brady L. Cc: JOEBLAW@aol.com; No V. Otto III; George B. Faller Jr.; Jennifer L. Spears; Imann333@gmail.com; rmmtwo Subject: Estate of Robert M. Mumma -- witnesses Brady: In addition to the witnesses previously identified (Barbara Mumma and Allen Haar), we may seek to call Robert B. Williams, Esq., and Joseph D.C. Wilson, CPA, as expert witnesses. We will shortly provide you with a summary of their anticipated testimony and will discuss with you what other discovery you would wish to take. At that point, if you oppose our calling them as witnesses at the hearing, we will seek leave of Court. We also reserve the right to call any witness designated by any other party to these proceedings and to designate rebuttal witnesses to respond to other testimony offered at the hearings. Ralph Ralph A. Jacobs, Esquire Jacobs & Singer LLC 1515 Market Street Suite 705 Philadelphia, PA 19102 215-789-3110 rjacobs(a~Lriesq com 8/4/2009 Exhibit "A" Page 1 of 1 Jennifer L. Spears From: Green, Brady L. [bgreen@morganlewis.com] Sent: Monday, May 18, 2009 12:33 PM To: rmmtwo; Ralph Jacobs Cc: JOEBLAW@aol.com; Imann333; No V. Otto III; George B. Faller Jr.; Jennifer L. Spears Subject: In re Estate of Robert M. Mumma, Deceased, No. 21-86-398 (O.C. Cumberland) Gentlemen: We have reviewed your respective messages of May 11 with respect to witnesses you intend to call at the resumed hearing before the Auditor. The deadline for disclosure of expert witnesses and submission of reports, set by Judge Oler in an Order, was January 31, 2008 (with a deadline for Mrs. Mumma and Mrs. Morgan to designate and serve reports from responsive experts by May 31, 2008). In light of the passage of this deadline more than a year ago, it would seem that the appropriate procedure is for you to file motions with the Court seeking leave to designate experts out of time. We believe this is consistent with the statements of the Auditor on the subject during the hearing last month. Once any such motions have been filed, we will file responses. Brady Brady L. Green Morgan, L®wis 8 Bockius LLP 1701 Market Street ~ Philadelphia, PA 19103-2921 Direct: 215.963.5079 ~ Main: 215.963.5000 ~ Fax: 215.963.5001 www.morganlewis.com Assistant: Rita H. Krochmal (215.963.4937 ~ rkrochmal@morganlewis.com IRS Circular 230 Disclosure To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing ar recommending tc.~ another party any transaction or matter addressed herein. For information about why we are required to include this legend in emails, please see http://www.morganlewis.com/circular'230 DISCLAIMER This a-mail message is intended only for the personal use of the recipient(s) named above. This message may be an attorney-client communication and as such privileged and confidential. If you are not an intended recipient, you may not review, copy or distribute this message. If you have received this communication in error, please notify us immediately by a-mail and delete the original message. 8/4/2009 Exhibit "B" CERTIFICATE OF SERVICE I, Melissa A. Scholly, an authorized agent of Martson Law Offices, hereby certify that a copy of the foregoing Executrices' Response to Motion of Barbara M. Mumma for Leave to Call Expert Witnesses to Testify at Auditor's Hearing was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Mr. Robert M. Mumma, II Box F Grantham, PA 17027 Mr. Robert M. Mumma, II 6880 S.E. Harbor Circle Stuart, FL 34996-1968 Mr. Robert M. Mumma, II 840 Market Street, Suite 164 Lemoyne, PA 17043 Ms. Linda M. Mumma 212 North Duke Street Durham, NC 27701 Pro Se Ms. Barbara Mann Mumma 541 Bridgeview Drive Lemoyne, PA 17043 Pro Se Brady L. Green, Esquire MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, PA 19103-2921 (Attorney for Estate and Executrices) Joseph D. Buckley, Esquire 1237 Holly Pike Carlisle, PA 17013 (Court Appointed Auditor) MARTSON LAW OFFICES By: ,~ Melissa A. Scholly 10 East High Street Carlisle, PA 17013 (717) 243-3341 Dated: August 4, 2009 F:\FILES\Clients\5844 Mumma Estate\5844.1.Mumma Estate\5844. l.ans to Babs motion for experts.doc