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HomeMy WebLinkAbout01-25-11n ~~ _'-, ~- _~~ - ' r~~ .- ~ kn~~ C.:. IN THE COURT OF COMMON PLEAS r - ~ `' OF CUMBERLAND COUNTY, PENNSYLVANIA ' _:~~ ~, ~ _ - IN RE ESTATE OF ~ ~} . ORPHANS' COURT DIVISION ROBERT M. MUMMA, , Deceased. N0.21-86-398 EMERGENCY MOTION OF MORGAN, LEWIS & BOCKIUS LLP TO QUASH SUBPOENA DIRECTED TO MARL J SONNENFELD, ESQUIRE Pursuant to Rule 234.4(b) of the Pennsylvania Rules of Civil Procedure, Morgan Lewis & Bockius LLP ("Morgan Lewis"), counsel for Lisa M. Morgan, executrix of and trustee under the will of Robert M. Mumma, Sr., respectfully moves this Court as follows for an order to quash a Subpoena to Attend and Testify Directed to Marc J. Sonnenfeld, Esquire in the above-captioned action: 1. On January 24, 2011, Marc J. Sonnenfeld, Esquire, a partner in Morgan Lewis' Litigation Practice Group in Philadelphia, received by certified mail a subpoena from Mr. Mumma, II. 2. The subpoena commands Mr. Sonnenfeld to attend the hearing scheduled for this Friday, January 28, 201 1, before this Court with respect to Mr. Mumma, II's motion to remove Mrs. Morgan as executor and trustee based on a purported conflict of interest. 3. Although the Court set the January 28 date for the hearing by Order dated Lnw or~icES November 8, 2010, Mr. Mumma, II waited until only a few days before the hearing to SNELBAKER SC BRENNEMAN, P.C. serve the subpoena on Mr. Sonnenfeld. He did not otherwise communicate any intention to call Mr. Sonnenfeld as a witness at the January 28 hearing. 4. The alleged conflict cited by Mr. Mumma, II in his motion to remove Mrs. Morgan relates to Mrs. Morgan's roles as executrix of and trustee under Mr. Mumma, Sr. and as executrix of the estate of her late mother, Barbara McK. Mumma. 5. Mrs. Mumma died on July 17, 2010. 6. Mr. Sonnenfeld last performed legal services for the Estate, the Trusts or the Mumma family a decade or more ago, as evidenced by time and other records produced to Mr. Mumma, II in this proceeding. He thus cannot speak to any alleged conflict of interest that has arisen or existed since July 17, 2010. 7. In addition, in response to objections served by Mr. Mumma, II and Barbara M. Mumma to accounts pertaining to actions by Mrs. Mumma and Mrs. Morgan through and including the end of 2003, the Court-appointed Auditor held extensive hearings on various matters relating to Mr. Mumma, Sr.'s Estate and the Trusts. Those hearings also encompassed multiple motions filed by Mr. Mumma, II seeking removal of Mrs. Mumma and Mrs. Morgan as executrices and trustees. 8. On, April 10, 2009, prior to the commencement of the hearings, Mr. Mumma, II served a subpoena on Mr. Sonnenfeld. The subpoena ordered him to testify on behalf of Mr. Mumma, II in the hearings before the Auditor scheduled for later that month. LAW OFFICES SNELBAKER EG BRENNEMAN. P.C. 2 9. In response to a motion for protective order, the Auditor directed that Mr. Sonnenfeld could testify by telephone in lieu of attending in person. 10. Despite mentioning several times his desire to call Mr. Sonnenfeld as a witness, and several discussions among Mr. Mumma, II, the Auditor and counsel to coordinate a time for that testimony during the course of 33 days of hearings, Mr. Mumma, II rested his case without calling Mr. Sonnenfeld as a witness. 11. Given that (a) the hearings on all matters relating to the Estate and the Trusts through 2003, and on all grounds Mr. Mumma, II had as of the end of the hearings before the Auditor to seek removal of Mrs. Morgan, were concluded, and that (b) Mr. Sonnenfeld has not had any involvement with respect to the Trusts, the Estate or other matters relating to the Mumma family or its businesses in many years, any testimony he might give at the January 28 hearing could not possibly bear any relevance to the matters before the Court. 12. Even if Mr. Sonnenfeld possessed information that somehow was tangentially relevant to the issues in the January 28 hearing, such information is likely to be protected from disclosure by the attorney-client privilege in that it relates to the conduct of litigation in which Mr. Mumma, II was an adverse party. Any non-privileged information, such as dates or contents of correspondence, statements in pleadings, transpirings at hearings or depositions and the like, is a matter of public record or otherwise is available from documents that have been produced. LAW OFFICES SNELBAKER SC BRENNEMAN, P.C. 3 13. Pursuant to Pa. R. C. P. 234.4, the Court has the power to "protect a party, witness or other person from unreasonable annoyance, embarrassment, oppression, burden or expense" in connection with the service of a subpoena. 14. Because he has had no knowledge of events during the relevant time period for the hearing, Mr. Sonnenfeld should not be burdened with the inconvenience, disruption and annoyance of having to appear at the January 28 hearing. 15. The issuance of the subpoena portends, moreover, that Mr. Mumma, II intends to attempt to raise or present evidence relating to issues well beyond those framed by the motion. 16. Because the subpoenas call for attendance and testimony at the hearing currently scheduled to begin on January 28, Morgan Lewis respectfully requests that the Court hear this matter prior to the hearing. 17. Because Mr. Mumma, II issued the subpoena to compel the attendance of Mr. Sonnenfeld, for purposes. of C.C.R.P. 208.2(d), Mr. Mumma does not consent to this Motion. 18. The Honorable J. Wesley Oler, Jr. has ruled upon discovery and other issues in this case. WHEREFORE, for the foregoing reasons, Morgan, Lewis & Bockius LLP respectfully requests that this Court grant its motion to quash, and enter an Order in the form attached. LAW OFFICES SNELBAKER $( BRENNEMAN. P.C. 4 Respectfully submitted, Dated: January 25, 2011 1 / Keith O. Brenneman Snelbaker & Brenneman, P.C. 44 W. Main St., P.O. Box 318 Mechanicsburg, Pennsylvania Attorney for Morgan, Lewis & Bockius LLP LAW OFFICES SNELBAKER 8C BRENNEMAN, P.C. 5 CERTIFICATE OF SERVICE I certify that on this 25th day of January, 2011, I served a true and correct copy of the forgoing Emergency Motion Of Morgan, Lewis & Bockius LLP To Quash Subpoena by overnight mail and/or first-class mail as noted below upon: Robert M. Mumma, II Box F Grantham, PA 17027 (via first class mail) George B. Faller, Jr., Esquire 10 East High Street Carlisle, PA 17013 (via first class mail) And: 6880 S.E. Harbor Circle Stuart, FL 34996-1968 (via Federal Express and first class mail) Linda M. Mumma 512 Creekview Lane Mechanicsburg, PA 17055 (via Federal Express and first class mail) Maurice Mitts, Esquire Mitts Milavec, LLC Two Logan Square Twelfth Floor 18th and Arch Streets Philadelphia, PA 19103 (via Federal Express and first class mail) Dated: January 25, 2011 Joseph D. Buckley, Esquire 1237 Holly Pike Carlisle, PA 17013 (via first class mail) Ms. Barbara M. Mumma 541 Bridgeview Drive Lemoyne, PA 17043 (via Federal Express and first class mail) ~- Keith O. Brenneman LAW OFFICES SNELBAKER EC BRENNEMAN, P.C. CER'TIF'ICATE OF SERVICE I certify that on this 25th day of January, 2011, I served a true and correct copy of the forgoing Emergency Motion of Morgan, Lewis & Bockius LLP To Quash Subpoena by overnight mail and/or first-class mail as noted below upon: Robert M. Mumma, II Box F Grantham, PA 17027 (via first class mail) Robert M. Mumma, II 840 Market Street Suite 33333 Lemoyne, PA 17043 (via Federal Express and first class mail) Linda M. Mumma 512 Creekview Lane Mechanicsburg, PA 17055 (via Federal Express and first class mail) Maurice Mitts, Esquire Mitts Milavec, LLC Two Logan Square Twelfth Floor 18th and Arch Streets Philadelphia, PA 19103 (via Federal Express and first class mail) Dated: January 25, 2011 George B. Faller, Jr., Esquire 10 East High Street Carlisle, PA 17013 (via first class mail) Joseph D. Buckley, Esquire 1237 Holly Pike Carlisle, PA 17013 (via first class mail) Ms. Barbara M. Mumma 541 Bridgeview Drive Lemoyne, PA 17043 (via Federal Express and first class mail) I~~jl~` Keith O. Brenneman LAW OFFICES SNELBAKER 8f BRENNEMAN,P.C.