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HomeMy WebLinkAbout09-09-09IN RE: ESTATE OF ROBERT M. : IN THE COURT OF COMMON PLEAS OF MUMMA, deceased :CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISIt~T ~'' ~ ~ pQ `-'-~7 fn ~ ~~ C ~ N0.21-86-398 ~~ p ~ r^ ~ ~`~ <~ ~ uj~ ~ Ong ~* ' ~ C?O-n AUDITOR'S INTERIM REPORT, SEPTEMBER 8, 2009, AND REQUES~~R OR~E tea Rf ~ n 7s .~ , ~:, r , . ,r v+ 'To the Honorable J. Wesley Oler, Jr.: Your Honor has appointed me Auditor in the above captioned matter and chazged me with reviewing the existing file and a multitude of preheazing issues raised by the parties and to schedule and hold a hearing as soon as scheduling permitted. Prior to my appointment, Your Honor's October 3, 2007 Order set discovery deadlines including expert reports which were to be provided prior to January 31, 2008. In October 2008, Iheld apre-heazing conference with all parties and counsel to review outstanding issues, including discovery issues. (A transcript of that meeting has been previously submitted to Your Honor) Ms. Mumma and her then counsel, Attorney Jacobs, acknowledged they had yet to comply with specific requests to answer interrogatories and produce requested documents; however, never discussed or requested additional time to file expert reports. In April, June and August, 2009, the undersigned held Iheazings and additional hearing are scheduled for the last week of October, 2009. On May 11, 2009, Ms. Mumma, through her then counsel, notified the Executrices of state and the Trustees of the Trusts created under the Will of Robert M. Mumma that they may leek to call two expert witnesses: Robert B. Williams, Esq. and Joseph D.C. Wilson, CPA. In iiesponse to this communication, on May 18, 2009, counsel for the Executrices/Trustees reminded Ms. Mumma's then counsel that the deadline set by your honor for designation of 1 experts and submission of their reports had long past and that if Ms. Mumma desired to call such experts she should seek leave of Court. Prior to the most recent hearings held August 3-6, 2009, Ralph Jacobs, Esquire, filed a Petition for Leave to Withdraw his appeazance as counsel for Bazbaza M. Mumma, one of the !pbjectors. All parties concurred in the withdraw petition and Your Honor granted the petition. ,Thereafter Ms. Mumma proceeded on a Pro Se basis. The undersigned during the first day of the Continued Hearing in this matter, August 3, 2009, questioned Ms. Mumma as to her understanding of proceeding on a pro se basis and advised her that she had the right to be tepresented by counsel during the proceedings. Prior to the August, 2009 heazing dates, Ms. kvlumma filed a Motion for Leave of Court to Call Expert Witnesses. Thereafter, on August 4, 2009, the Executrices/Trustees filed a Response to the Motion apposing said motion. Thereafter, Your Honor referred the matter to the undersigned for my During the August 5, 2009 Auditor's Heazing, the undersigned held a side bar Ms. Mumma, Mr. Mumma, both acting as her or his own attorney, and attorney Green the Executrices/Trustees to heaz their respective azguments and to determine if the were to be granted what time limit Ms. Mumma would need to receive the reports. The agreed to discuss the matter among themselves and if they could not agree, advise the within a week of the close of the August hearings. Ms. Mumma advised the she would need no more than two (2) weeks to provide the expert reports. The advised the undersigned they could reach no agreement and on August 13, 2009, the provided a Memorandum in opposition to the Motion. On August 25, 2009, 2 Ms. Mumma filed her Memorandum in Support of her motion and the Estate responded with a (rebuttal memo. Ms. Mumma azgues one of the reasons she had had to the withdraw of her counsel was abased on his failure to obtain expert reports and his failure to advise her of certain procedural (deadlines. The Executrices/Trustees aggue that Ms. Mumma has had ample time (more than five ~ryeazs since she and her counsel filed objections) to provide expert reports. The I~Executrices/Trustees also aggue that to permit the expert testimony requested by Ms. Mumma i'would unfairly prejudice them and also delay the proceedings. The claimed prejudice relates to nhe allegations that "they prepazed their case base upon the disclosures by the objectors, and the witnesses and evidence they understood the objectors would present," and "[t]o allow undisclosed expert testimony at this point in the proceedings would place them in a position in which to have no opportunity to prepaze or conduct relevant investigation." They further argue khat if this request were granted, the proceedings may have to be delayed to give them ample }opportunity to review the reports and prepare for the hearings. ', All parties and the undersigned agree that Your Honor, following the guidelines established in numerous cases, should consider the following factors when determining whether pr not to preclude a witness from testifying for failure to comply with a discovery order: ~~ (1) the prejudice or surprise in fact of the party against whom the excluded witnesses I 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 cases in the court, (4) bad faith of willfulness in failing to comply with the court's order. "Additionally, [i]n the absence of bad faith or willful disobedience of the rules, the most ',significant considerations are the importance of the witness' testimony and the prejudice, if any, to the party against whom the witness will testify. Further, we note that [t]o preclude the 'testimony of a witness is a drastic sanction, and it should be done only where the facts of the case 'imake it necessazy." Jacobs v. Chatwani et. al. , 922 A2d. 950 (Pa. Super. 2007) citing Smith v. (Grab, 705 A.2d 894, 902-903 (Pa. Super. 1997). i~ The Executrices'/Trustees' claim of prejudice, while artfully azgued, does not rise to the level needed to preclude the requested dismissal of the motion. The Estate and the Trusts have (known for many years the position of Ms. Mumma as an objector and her limited, continuously ,articulated claims. For many months they have been on notice of Ms. Mumma's desire to call the experts and counsel for the Estate and the Trusts requested in May, 2009, that Ms. Mumma file ~or leave of Court. The Estate's azgument that granting Ms. Mumm's request may delay the October hearing, which I will not permit, is unwarranted. Ms. Mumma represented that she would have her expert reports to opposing counsel within two (2) weeks and she shall be held to representation. In no way should my recommendation reflect my displeasure that Ms. Mumma and her counsel did not comply with Your Honor's prior discovery deadline Orders, but to deny request may have an impact which could further delay and extend a final resolution of the The Orphan's Court using its equitable powers must weigh both parties' claims and is together with the interest in the Court to have a final resolution. The Estate and the Trusts also raise arguments relating to the proposed expert testimony should not and cannot be addressed until the actual heazing, thus arguments relating to r the testimony is necessazy or appropriate shall be reserved until that time. 4 I recommend that Ms. Mumma's request be granted, that she be limited to the two experts she had proposed and that the expert reports must be exchanged with the opposing parties within twenty (20) days of the proposed Order. Finally, if Ms. Mumma does not comply 'with this deadline, you amend your order and deny her motion. I recommend that if Your Honor ',agrees with my recommendations, you enter an Order accordingly and I have attached a (recommended order to accomplish the same. Respectfully submitted, 5 1237 Holly Pike Carlisle, PA 17013 (717)249-2448 JoeBLawnaol.com