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HomeMy WebLinkAbout08-25-09 (2)IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL- VANIA In re: ) Orphans Court Division Estate of Robert M. Mumma, ) Number 21-86-398 ' Deceased ) r~ ~-: ~ -i, RESPONSE BY BARBARA M. MUMMA TO ~= - ~=_? ~~ ' MEMORANDUM OPPOSING MOTION TO CALL EXPERT WITN>C`S~L~ 4 ~ .. ;-, ~~ 4i! Introduction and Background - -` -- =~~ -;. ;~ .. , - t7 y - , As you know, I now represent myself in this proceeding. I requested that Mr. Ja- ~ cobs withdraw his appearance and he no longer represents me. I have never written a memorandum of law to submit to a court, so in this response I have attempted to follow the form which I have seen used by Mr. Jacobs, my former attorney, and by other lawyers in this case. I also wish to be as clear and as succinct as possible. I have carefully read the memorandum which I received with a letter from Jermifer Spears, and I think it is important to respond to several inaccuracies and misleading implications in the memorandum. I also have looked at some of the cases which are cited, and I would like to point out that the facts in many of those cases were different from the current situation and that the four-factor test they list seems to weigh in my favor. Finally, I would like to explain briefly that my request to present evidence by the experts will expedite the conclusion of this hearing, not delay it, as the memorandum claims. I have neither the desire nor the resources to extend this proceeding any further than necessary, and it is in everyone's interests to complete the testimony and bring the matter to a conclusion. I would like to begin with the list of items on pages one and two of the memoran- dum which tries to emphasize delays and the passage of time. First of all, it is unfair and misleading to try to emphasize delay by pointing toward the time that your predecessor au- ditor, Mr. Andrews, was involved in the case. I have read some of the proceedings before Judge Oler that led to Mr. Andrews' resignation as auditor and your appointment to replace him, and it seems fair to say that the many years of delay in this proceeding were not my fault or that of Mr. Jacobs, my former counsel. Because Mr. Andrews resigned, it really is not necessary to detail those circumstances. I have no desire to be unnecessarily critical of Mr. Andrews. I also have no desire to be unnecessarily critical of Mr. Jacobs. However, it is im- portant that you know what I now know. First, Mr. Jacobs never told me that there was any deadline for filing reports by ex- perts. He did not tell me that any such deadline existed either before or after the deadline passed. Second, earlier this year, it was I who suggested to Mr. Jacobs that it might be help- ful to have expert testimony to make things more clear. I asked him about it after I spoke with attorney Robert Williams of the law firm Williams Coulson, who does estate planning work for me. During one of my conversations with Mr. Williams, I asked him about some of my concerns in this case, and after that conversation, I raised the subject of expert wit nesses with Mr. Jacobs. I did not know there was such a thing as an expert report that was to be filed, and I did not know that you had set a schedule for filing such things. I did not learn any of that until very recently. Third, it is both inaccurate and misleading for the memorandum to claim, as it does on page 4, that I did not indicate any possibility that I might call Allen Haar, CPA, until "three months" after the April, 2009 hearing. Mr. Jacobs disclosed to the other lawyers in this case before the April hearing that Mr. Haar was a witness I was likely to call, and I have a copy of an e-mail which Mr. Jacobs sent to all of the other lawyers in this case, dat ed May 11, 2009, at 4:06 pm, to Brady Green, with copies of the e-mail shown as sent to all three of the lawyers whose names are on the memorandum, that Mr. Jacobs "may seek to call Robert B. Williams, Esq. and Joseph D. C. Wilson, CPA as expert witnesses." The memorandum, signed by Ms. Spears, denies that they were informed of that fact. Because of the existence of this e-mail, it is particularly offensive to me that Ms. Spears (which e~ sentially claims on page 4 that I first raised the subject of Mr. Wilson at the hearing on Au- gust 3, 2009) was a recipient of the May 11, 2009 e-mail in which Mr. Jacobs identified Mr. Wilson as a potential expert witness. The claim in the memorandum is simply not true. In addition, if Mr. Green or any other the other lawyers told Mr. Jacobs that they were go- ing to object because an expert report was not filed, Mr. Jacobs never told me that. In addition, it is misleading to claim that the more than 100 boxes of documents which were produced as mentioned on page 3 of the memorandum were of assistance in providing the information which was necessary to prepare the case. Those boxes were ran- dourly produced, had no index, were in many cases completely disorganized and incorrr plete, and were extremely difficult to review. I am not a lawyer, but it looks to me like the documents were produced in a way designed to overwhelm Mr. Jacobs, and make it harder to reach the facts. I am trying to review some of that material now, so I understand the problem. To date in this proceeding, I have not yet called any witnesses and neither has my mother or my sister, Lisa. I will call my first witness when the hearing resumes during the last week of October, which is more than two months from now. They do not need to call any witnesses until I have completed calling my witnesses. I would like to assure you that I have no desire to prolong this proceeding. It is my understanding that on January 20, 2009, you issued a notice asking the objectors to specify the issues to be resolved at the hearing. I have a copy of a letter to you from Mr. Jacobs dated February 9, 2009 in which he identifies seven specific issues to be resolved. The ex pert testimony which I ask you to let me provide will address most of those seven issues, and I do not seek to expand the scope or number of my objections. The testimony of Mr. Haar, Mr. Wilson and Mr. Williams will be concise and focused and likely will actually shorten the hearing, rather than lengthen it. More important, their testimony will clarify these issues raised by my objections much better and in a much shorter period of time than I could as a lay person trying to provide the same information through my own testimony. That is the major reason that I have asked permission for them to testify. Argument I frankly do not know the extent of the applicability of the Pennsylvania discovery rules to this proceeding in Orphans Court. I also have looked at most or all of the cases which are cited in the memorandum, and it does not appear that any of those cases are cases in the Orphans Court division. After receiving the memorandum, I did look at the general Orphans Court rules, and I learned that Rule 2.1 of the Orphans Court Division says that the rules are to be "liberally construed" and that "The court at every stage of any action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties in interest." The next rule, Rule 2.2, says that "The court, on its own motion or the motion of any party, may extend any limitation or time prescribed by these rules." I assume that the list of four factors appearing on page 8 of the memorandum is an accurate statement of Pennsylvania law. I found a few other cases that seem to say much the same thing, such as Feingold v. Southeastern Pennsylvania Transportation Authority, 512 Pa. 567, 517 A.2d 1270 (1986), which is from the Pennsylvania Supreme Court, and the court says that the prejudice to each party must be balanced in each case to decide whether exclusion is proper. The rule also appears to be stated in Curran v. Stradley, Ronon, Stevens & Young, 361 Pa. Super. 17, 521 A.2d 451 (1987), which seems to say the same thing. I do not see how my mother or sister Lisa would be prejudiced or surprised if these persons are allowed to testify. I do understand that they need to see reports so that they can determine the areas in which the witnesses will provide testimony. However, this is not the day before the next day of the hearing. The next hearing date is more than two months away. The=, I propose that I be permitted to provide ex exports to the other counsel no later than September 14, 2009. That will give the lawyers for my mother and sister more than six weeks to prepare for their testimony. They already know who these witnesses will be. The Curran case involved a witness who was disclosed two weeks pri- or to trial, and the court said that the other side could cure any prejudice by requesting a continuance or asking to take the deposition of the witness. Obviously, I would not object to those requests, if made. The factor about disruption of the judicial process does not seem to be material here. Those cases seem very different from this proceeding. All of those cases appear to have involved disclosure of expert reports on or almost on the day of trial. None are in the Or- phans Court. Most of the cases appear to talk about burdens to the "overburdened judicial system," but, with all due respect to you, this proceeding is before an auditor in a separate facility and does not appear to be delaying any other case or judge at all. Finally, I did not see anything in the memorandum in which the memorandum claimed that I was guilty of bad faith or "wilfullness" (whatever that means in the law) in failing to file expert reports earlier. Mr. Jacobs did not conceal the identity of experts which he had planned all along to call as witnesses. Quite the contrary. Mr. Jacobs origi- pally identified Mr. Haar as a witness and then promptly notified all counsel as soon as I told him that we should call Mr. Williams and Mr. Wilson as witnesses. As for me, I had no idea that there was a deadline for filing expert reports. It seems to me that the four-factor test cited in the memorandum for deciding whether to permit testimony weighs in favor of my being permitted to file expert reports and submit expert testimony at trial, so long as the expert reports are filed sufficiently in advance of the October 26-30 resumption of the hearing to permit the lawyers to prepare adequately. That is why I suggested September 14 as a deadline within which to file these reports. It also seems that the Orphans Court rules which I quoted earlier weigh in favor of my being able to file such reports and provide such evidence. My understanding of this proceeding as it relates to my objections is to determine whether my objections to the accounting are proper and have merit. The information which my experts will provide will help you to make that decision based upon clear and organized information. Conclusion For these reasons,l ask you to grant my motion for leave to call expert witnesses to testify at the auditor's hearing which resumes October 26, 2009, so long as the expert re- ports of my proposed witnesses are filed no later than September 14, 2009. Respectfully submitted, ~a.~.`~---- -roc-_ Dated: August 25, 2009 Barbara M. Mumma 541 Bridgeview Drive Lemoyne, PA 17043 717-730-2188 Certificate of Service I hereby certify that the Response By Barbara M. Mumma To Memorandum Opposition Motion To Call Expert Witnesses was served this date by first-class mail, postage prepaid, addressed as follows: Joseph D. Buckley, Esquire 1237 Holly Pike Carlisle, PA 17013 (Court Appointed Arbitrator) No V. Otto, II, Esquire George B. Faller, Jr., Esquire Jennifer L. Spears, Esquire Martson Deardorff Williams Otto Gilroy & Faller Martson Law Offices 10 East High Street Carlisle, PA 17013 Brady L. Green, Esquire Morgan, Lewis & Bockius LLP 1701 Market Street Philadelphia, PA 19103-2921 Robert M. Mumma, II 840 Market Street, Suite 164 Lemoyne, PA 17043 Ms. Linda M. Mumma 512 Creekview Drive Mechanicsburg, Pa. 17055 Dated: August 25, 2009 -ss~G . Barbara M. Mumma 541 Bridgeview Drive Lemoyne, PA 17043