Loading...
HomeMy WebLinkAbout11-2142w _ 1'-jj i ` r PEMI Robert W. Barton, pro se 2123 Chestnut Street Harrisburg, Pennsylvania 17104 Telephone (717) 236-1123 robertwbarton@gmail.com ROBERT W. BARTON, Plaintiff, V. ROBERT M. MUMMA, II, Defendant, and ROBERT M. MUMMA, II, Trustee of the Robert M. Mumma, II, Grantor Retained Annuity Trust, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW : NO. NOTICE YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED BY ENTERING A WRITTEN APPEARCANCE PERSONALLY OR BY ATTORNEYAND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHR NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OT OTHER PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. 1 IIQ YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA. 17103 1-800-990-9108 (717) 249-3166 2 Robert W. Barton, pro se 2123 Chestnut Street Harrisburg, Pennsylvania 17104 Telephone (717) 236-1123 robertwbarton@gmaii.com ROBERT W. BARTON, Plaintiff, V. ROBERT M. MUMMA, II, Defendant, and ROBERT M. MUMMA, II, Trustee of the Robert M. Mumma, II, Grantor Retained Annuity Trust, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION-LAW NO. COMPLAINT Robert W. Barton as Plaintiff respectfully states the following claims against Defendant Robert M. Mumma, II. 1. Plaintiff Robert W. Barton (Barton) is an adult individual who resides at 2123 Chestnut Street, Harrisburg, Dauphin County, Pennsylvania 17104. 2. To the best of Barton's knowledge, Defendant Robert M. Mumma, II, (herein Defendant Mumma), maintains an office and/or a place of business at 840 Market Street, Lemoyne, Cumberland County, Pennsylvania 17043. 3. To the best of Barton's knowledge, Defendant Robert M. Mumma, II, maintains a residence at 6880 S.E. Harbor Circle, Stuart, Florida. 3 4. To the best of Barton's knowledge, Defendant Robert M. Mumma, II, maintains a residence with a mailing address of Box 58, Bowmansdale, Pennsylvania 17008 and/or Box E, Bowmansdale, Pennsylvania 17007. 5. To the best of Barton's knowledge, Defendant Robert M. Mumma, II, is Trustee of the Robert M. Mumma, II, Grantor Retained Annuity Trust. 6. On or about November 1, 2006, at the request of Defendant Robert M. Mumma, II, Plaintiff Barton began providing paraprofessional services for the Defendant Mumma. 7. From on or about November 1, 2006, until on or about March 1, 2008, Barton provided his paraprofessional services to Defendant Mumma as an employee of the Law Offices of Eric J. Wiener, LLC, 2407 Park Drive, Harrisburg, Pennsylvania 17110. 8. Such paraprofessional services provided by Barton were generally in the nature of paralegal services and such services were generally performed at Wiener's office at 2407 Park Drive, Harrisburg, at Barton's offices at 2123 Chestnut Street in Harrisburg, or at Mumma's offices at 840 Market Street, Lemoyne, Cumberland County, Pennsylvania 17043. 9. Barton's statements for his services were billed to Defendant Mumma by Wiener and were sporadically paid by Defendant Mumma to Wiener, and Barton does not claim any entitlement to additional payment from Mumma for his services to Mumma for the period of November 1, 2006, until on or about March 1, 2008 in this suit. 10. On or about March 1, 2008, Barton and Wiener terminated their relationship as an employer and employee and since that date Barton has continued to provide paraprofessional services to Mumma as an independent contractor. 4 11. Since on or about March 1, 2008, Barton has submitted his Statements directly to Mumma and those Statements have been sporadically and intermittently paid by Mumma or some entity acting on Mumma's behalf and at Mumma's instruction. 12. Since on or about March 1, 2008, Barton has provided his paraprofessional services to Mumma under the supervision of James G. Gault, Esquire, 840 Market Street, Suite 153, Lemoyne, Pennsylvania 17043, as Barton was instructed to do by Mumma and Gault. 13. On or about July 1, 2010, Defendant Mumma asked Plaintiff Barton to provide paraprofessional services to Mumma under the direction of Gault in a case then pending in the Dauphin County Court of Common Pleas at No. 5381 Equity 1996 and docketed as Martin G. Grass and Mark G. Caldwell, trading as Double M Development v. Robert M. Mumma II and Susan Mumma, Trustee of the Robert M. Mumma, II, Grantor Annuity Retained Trust v. Robert M. Mumma, II, Intervenor (herein the GRAT case). 13. Since on or about July 1, 2010, Barton has provided paraprofessional services to Robert M. Mumma II, Trustee of the Robert M. Mumma, II, Grantor Annuity Retained Trust v. Robert M. Mumma, 11, Intervenor, as instructed by to do by Mumma and Gault. 14. The GRAT case involved a Judgment that had been entered against the Defendants Robert M. Mumma II and Susan Mumma in the approximate amount of $902,242.57 (Nine Hundred Thousand Two Hundred Forty Two and 57/100 dollars). See Docket entries at page 14 of No. 5381 Equity 1996. 5 15. The Trial Court in the GRAT case, per the Honorable Todd A. Hoover, had ordered the imposition of sanctions against Defendants Robert M. Mumma II and Susan Mumma for their failure to comply with a Court Order so the Judgment in that case is increasing by $1000 (One Thousand Dollars) per day. 16. The Judgment in the GRAT case now totals approximately $2,000.000 (Two Million Dollars). 17. The paraprofessional services provided by Plaintiff Barton have directly benefitted Defendant Robert M. Mumma, II, and Defendant Robert M. Mumma, II, Trustee of the Robert M. Mumma, 11, Grantor Retained Annuity Trust. 18. Plaintiff has regularly sent to Defendant Robert M. Mumma, 11, Statements of the amounts owed to him by Defendant Robert M. Mumma, II. 19. As of November 22, 2001, Defendant Mumma had incurred an indebtedness of an unpaid balance owed to Barton in the amount of $8945, Defendant Mumma has not paid Barton anything since November 19, 2010, and Defendant Mumma has incurred additional indebtedness to Barton since November 22, 2001. See Exhibit 1. 20. As of February 10, 2011, Defendant Robert M. Mumma, 11, owed Plaintiff Barton a principal sum of $12,365 for services rendered by Barton to Mumma. 21. Since on or about November 22, 2010, Plaintiff Barton has repeatedly demanded payment of the amount owed to him by Defendant Mumma and Mumma has admitted his obligation to pay those debts but has refused to pay those debts. 22. The amount at issue does not exceed the sum of $50,000, so this matter should be referred to compulsory arbitration. WHEREFORE Plaintiff Robert W. Barton respectfully requests relief as follows: (a) entry of a Judgment in favor of Robert W. Barton and against Robert M. Mumma, 11, in such an amount as will compensate Barton for all services provided by Barton to Mumma, which amount requires reference of this matter to compulsory arbitration; and (b) inclusion in such Judgment such amount as will compensate Plaintiff for interest, delay damages, and costs of suit; and (c) such other further relief as is proper. Dated: Respectfully submitted, r Robert W. Barton, pro se 2123 Chestnut Street Harrisburg, Pennsylvania 17104 Telephone (717) 236-1123 robertwbarton@gmail.com VERIFICATION Pursuant to the penalties of 18 Pa.C.S. 14902, 1 hereby verify that the facts herein are true. Dated: OA- -5 dic Robert W. Barton 7 Robert W. Barton 2123 Chestnut Street Harrisburg, Pennsylvania 17104 Telephone (717) 236-1123 Cell (717) 756-3748 E-mail robed"arton@gmail.com Mr. Robert M. Mumma, II 840 Market Street Lemoyne, Pennsylvania 17043 November 22, 2010 STATEMENT FOR SERVICES RENDERED Balance due from 11/16/10 Statement $11690 Received 11/19/10 $2745 Total now due $8945 Robert W. Barton 2123 Chestnut Street Harrisburg, Pennsylvania 17104 Telephone (717) 236-1123 Cell (717) 756-3748 E-mail robertwbarton@gmail.com Mr. Robert M. Mumma, II 840 Market Street Lemoyne, Pennsylvania 17043 November 30, 2010 STATEMENT FOR SERVICES RENDERED RE: Double M v. Mumma 11/26/10 Conference with Mr. Mumma re litigation strategy. 11/28/10 Prepare Brief in support of Petition to Strike Judgment. 11/29/10 Complete Brief in support of Petition to Strike Judgment. Total hours this Statement Total due this Statement Total due from 11/22/10 Statement Total now due 2 '/ hours 5 hours 2 hours 9 'h hours at $90 $855 $8945 $9800 Robert W. Barton 2123 Chestnut Street Harrisburg, Pennsylvania 17104 Telephone (717) 236-1123 Cell (717) 756-3748 E-mail robertwbarton@gmail.com Mr. Robert M. Mumma, II 840 Market Street Lemoyne, Pennsylvania 17043 December 7, 2010 STATEMENT FOR SERVICES RENDERED RE: Double M v. Mumma 12/3/10 - 12/6/10 Review Plaintiffs' Answer to Petition to Strike. Research re adoption of Local Rules. Conference with Prothonotary's Office. Total hours this Statement Total due this Statement Total due from 11/22/10 Statement Total now due 6'h hours 6 %2 hours at $90 $585 $9800 $10385 Robert W. Barton 2123 Chestnut Street Harrisburg, Pennsylvania 17104 Telephone (717) 236-1123 Cell (717) 756-3748 E-mail robertwbarton@gmail.com Mr. Robert M. Mumma, II 840 Market Street Lemoyne, Pennsylvania 17043 December 28, 2010 STATEMENT FOR SERVICES RENDERED RE: Double M v. Mumma 12/13/10 Conference with Prothonotary. Review Brief of Plaintiff-Respondent. Research re final orders. 4 hours 12/14/10 Research re defective and void judgments. Prepare Reply Brief. 4 hours 12/15/10 Research re final orders and appellate jurisdiction. Prepare Reply Brief re appellate jurisdiction. 4 hours 12/16/10 Review messages from and prepare message to Mr. Gault. Prepare Table of Contents. Complete Reply Brief. 4 hours 12/17/10 Complete and send Reply Brief and message to Mr. Gault. 3 'h hours 12/21/10 Review Reply Brief as filed by Mr. Gault. 2 % hours Total hours this Statement. 22 hours at $90 Total due this Statement $1980 Total due from 12/7/10 Statement $10385 Total now due $12365 ROBERT W. BARTON, Plaintiff V. ROBERT M. MUMMA, II, Defendant and ROBERT M. MUMMA, II, Trustee of the Robert M. Mumma, II Grantor Retained Annuity Trust, Defendant NO. 2011 - 2142 CIVIL CIVIL ACTION - LAW C rn?W zm u,r r? vn =C) ?C x -t Q 3 N N s• ca C --4 -urn cv a -+o =rn C31rn xa C'rn DEFENDANTS' MOTION TO QUASH PLAINTIFF'S NOTICE TO PRODUCE DOCUMENTS Pursuant to Pa.R.C.P. 234.4(b), the pro se Defendants Robert M. Mumma, II, individually and as Trustee, respectfully move this Court for an Order to quash the Plaintiff's Notice to Produce Documents. In support of this motion, Defendants aver as follows: 1. Pursuant to Pa.R.C.P. 234.4, the Court has the power to protect a party from unreasonable annoyance, embarrassment, oppression, burden or expense in connection with the service of a notice to produce documents. 2. On March 2, 2011, Defendants were served with a Complaint filed by Plaintiff on or about February 23, 2011; said Complaint avers that the Plaintiff is owed the sum of $12,365 for "paraprofessional" services which were generally "in the nature of paralegal services," and were done so as "an independent contractor." 3. Plaintiff was previously a licensed attorney in the Commonwealth of Pennsylvania - ID No. 15616; however, he was disbarred on consent on February 10, 1998 (117 DB 97). IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA C-)p f--3 1 3. On March 14, 2011, Plaintiff hand-delivered and mailed to Defendant's' place of business a Notice to Produce Documents pursuant to Rule 234.3(b); said Notice directed the Defendants to produce the following documents on or before March 28, 2011 at 2123 Chestnut St., Harrisburg, PA 17104: "Any and all documents in your possession or under your control that relate to any settlement agreements between Robert M. Mumma, II and Eric J. Wiener, Esquire." 4. As depicted by the averments in Plaintiff's Complaint in this action, Plaintiff was previously employed by Attorney Wiener; Plaintiff was privy to confidential information that arose in the context of the work which he performed for Defendants. Furthermore, as evidenced by Plaintiff s Notice to Produce Documents, Plaintiff is aware that Attorney Wiener previously filed suit against Defendant Mumma; moreover, Plaintiff is aware that Plaintiff s previous work performed while employed by Attorney Wiener was the subject of Attorney Wiener's suit against Defendant Mumma. 6. Said prior suit was resolved by a Mutual Release and Settlement Agreement which contained a confidentiality provision; therein, the parties to the prior suit agreed that the terms and conditions of the settlement agreement, as well as the facts of the Settlement, are to be kept confidential. 7. Defendant Mumma was represented by legal counsel with respect to said suit filed by Attorney Wiener, and said legal counsel prepared and advised Defendant Mumma with respect to the Settlement Agreement. 8. Plaintiff's request for the settlement agreement is barred by the attorney-client privilege. See generally, Gillard v. AIG Ins. Co., A.3d , 2011 WL 650552 (Pa. 2011) (the attorney-client privilege operates in a two-way fashion to protect confidential client-to- attorney or attorney-to-client communications made for the purpose of obtaining or providing professional legal advice). 9. Plaintiff's Notice to Produce Documents seeks information or material that is not relevant and is otherwise not germane to Plaintiff's cause of action in this matter. 10. The Court should quash the Plaintiff's Notice to Produce Documents because it seeks confidential matters, because the matters are privileged, and/or because the Notice to Produce is not relevant to Plaintiff's action. 11. As a result, the Defendants should be protected from the unreasonable annoyance, embarrassment, oppression, burden or expense in connection with compliance with said notice to produce documents. 12. Because Plaintiff issued the Notice to Produce Documents to obtain a copy of the Settlement Agreement, for purposes of C.C.R.P. 208.3(a)(9), Plaintiff does not consent to this motion to quash. 13. To the best of Defendants' knowledge, information, and belief, this recently-filed action has not yet been assigned to any Judge of this Court. 3 WHEREFORE, for the foregoing reasons, Defendants respectfully request that this Court enter an appropriate Order which grants this Motion to Quash, and which grants such other and further relief that the Court deems just. Dated:' Tn 0.'*41/6 4,1., /Vv&) -ir.-Vt Robe umma, II -pro se 840 Market Street - Suite 33333 Lemoyne, Pennsylvania 17043 (717) 612 -9720 PRO SE - Individually and as Trustee 4 VERIFZCAT?ON L Robert Ni Mumma, IL De*ndamt, do hereby verify that any stets of fact made m the foregoing doo went are true and COMCt to the best of my l mowlodge, infcnmation and belief. I understand that any false statements therein are subject to the penalties contained m 18 Pa.C.S.A. §4904, relating to w wom falsification to authorities. Robert M. Mumma,11 CERTIFICATE OF SERVICE I hereby certify that I caused a true and correct copy of the foregoing Motion to Quash to be served as follows: By U.S. Mail, first class, postage prepaid: Robert W. Barton 2123 Chestnut Street Harrisburg, PA 17104 Pro se Plaintiff Dated: , obert II - pro se 7 840 Market Street - Suite 33333 Lemoyne, Pennsylvania 17043 (717) 612 -9720 Defendants PRO SE - Individually and as Trustee ROBERT W. BARTON, Plaintiff V. ROBERT M. MUMMA, II, Defendant and ROBERT M. MUMMA, II, Trustee of the Robert M. Mumma, II Grantor Retained Annuity Trust, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA C'> e•a NO. 2011 - 2142 CIVIL c CIVIL ACTION - LAW : C`3 1a. x c:) yz .. PRELIMINARY OBJECTIONS TO COMPLAINT TO: ROBERT W. BARTON -prose Plaintiff YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED PRELIMINARY OBJECTIONS WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. s rnr- -v rn cI A = . ,ern A -G AND NOW, comes Robert M. Mumma, II, pro se Defendants, individually and as Trustee, who files the following Preliminary Objections to the Plaintiff's Complaint pursuant to Pa.R.C.P. 1028(a)(2) through (4) stating as follows: 1. On or about February 23, 2011, Plaintiff filed a complaint against the Defendants seeking the total sum of $12,365 with respect to amounts allegedly due for "paraprofessional" services which were generally "in the nature of paralegal services," and were done so as "an independent contractor." 1 2. Attached to Plaintiff's Complaint is an exhibit comprised of four documents entitled "Statement for Services Rendered" dated November 22, 2010, November 30, 2010, December 7, 2010, and December 28, 2010. Plaintiff's Complaint does not have attached thereto nor incorporated therein any copies of any contracts, emails, letters, or any other writings. 4. Plaintiff is identified in Paragraph 1 of the Complaint as "Robert W. Barton", an adult individual who resides at 2123 Chestnut Street, Harrisburg, Dauphin County, Pennsylvania 17104. Plaintiff was previously a licensed attorney in the Commonwealth of Pennsylvania - ID No. 15616; however, he was disbarred on consent on February 10, 1998 (117 DB 97). 6. As depicted by the averments in Plaintiff s Complaint, Plaintiff was previously employed by Attorney Eric Wiener; Plaintiff was privy to confidential information that arose in the context of the work which he performed for Defendants. 7. Furthermore, Plaintiff is aware that Attorney Wiener previously filed suit against Defendant Mumma and Plaintiff is aware that Plaintiff s previous work performed while employed by Attorney Wiener was the subject of Attorney Wiener's suit against Defendant Mumma. 8. Paragraph 17 of Plaintiff s Complaint avers that Defendants have been directly benefitted by Plaintiff s "paraprofessional" services; however, Plaintiff s services performed in several matters were not only inadequate and incompetent, but, as a result thereof, caused Defendants economic harm and/or setbacks or losses in several matters of litigation. 9. Plaintiff s Complaint fails to set forth a cognizable cause of action; the complaint also fails to set forth any causes of action and any special damages related thereto in separate counts. 2 10. Plaintiff's Complaint avers that an account has been stated against the Defendants for the sum of $12,365; however, the complaint does not aver that Defendants ever acquiesced, assented, and/or agreed to the account rendered, and, accordingly, for this reason and others, the complaint fails to plead properly any action based upon the theory of recovery upon an account stated. 11. Although seeking payment of fees for "paraprofessional" services performed by Plaintiff, the complaint does not plead nor aver the existence of any "professional" or "paraprofessisonal" relationship. 12. Although seeking payment of fees for "paraprofessional" services performed by Plaintiff, the complaint does not plead nor aver the existence of any Fee Agreement entered into before or within a reasonable time after the commencement of any "professional" or "paraprofessisonal" relationship. 13. Although seeking payment of fees for "paraprofessional" services performed by Plaintiff, the complaint does not have attached thereto a copy of any Fee Agreement entered into before or within a reasonable time after the commencement of any "professional" or "paraprofessisonal" relationship. 1. MOTION TO DISMISS FOR INSUFFICIENT SPECIFICITY IN A PLEADING AS TO AN ACCOUNT STATED THEORY OF RECOVERY PURSUANT TO Pa.R.C.P. 1028(a)(3). 14. Defendants hereby incorporate all preceding paragraphs of the Preliminary Objections as though fully set forth at length herein. 15. Plaintiff's Complaint seeks amounts due under an account stated theory of recovery; however, the complaint insufficiently pleads the requisite facts necessary to support this theory of recovery. 16. The Complaint fails to plead sufficiently the nature or extent of the following elements of an account stated: (i) That the Defendants ever acquiesced, assented, or agreed to the account rendered; (ii) That there was ever a running account and/or a pre-existing account; (iii) That there was ever any acceptance of the account rendered or any account; (iv) That the services performed relative to the alleged account were satisfactory to the Defendants; and/or (v) That the services performed relative to the alleged account were competent and adequate under the appropriate standards governing the nature of the work performed. 17. To the extent the Complaint purports to seek recovery of the alleged amounts due under an account stated theory of recovery, yet fails to aver with specificity the appropriate elements of such a theory or action, same is legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(3). II. MOTION TO DISMISS FOR LEGAL INSUFFICIENCY OF A PLEADING (DEMURRER) PURSUANT TO Pa.R.C.P. 1028(a)(4). 18. Defendants hereby incorporate all preceding paragraphs of the Preliminary Objections as though fully set forth at length herein. 19. The Complaint seeks payment of a specified total amount under an account stated theory of recovery without asserting the necessary and requisite facts which would support the 4 application of such a theory of recovery in this matter, and, as such, is legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(4). 20. To the extent that the Complaint seeks payment based upon any contractual theory of recovery for "paraprofessional" services which were generally "in the nature of paralegal services," and were done so as "an independent contractor," said theory of recovery is inapplicable given that Plaintiff cannot recover for said services inasmuch as he was previously disbarred on consent, and said averments may further implicate the Plaintiff has seeking payment for the unauthorized practice of law which is governed by the Rules of Professional Conduct; as such, Plaintiff's Complaint is legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(4). 21. The Complaint fails to set forth an appropriate theory of law upon which its demand for payment must be granted, and, as such, is legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(4). III. MOTION TO DISMISS FOR FAILURE OF A PLEADING TO CONFORM TO LAW PURSUANT TO Pa.R.C.P. 1028(a)(2). 22. Defendants hereby incorporate all preceding paragraphs of the Preliminary Objections as though fully set forth at length herein. 23. To the extent the Complaint is considered to be in the nature of a suit on a written contract, the Complaint does not have attached thereto a copy of any contract, agreement, document, or similar writing signed by the Defendant, and, as such, is legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(2). 24. The Complaint seeks payment based upon an account stated theory of recovery; however, said theory of recovery is inapplicable to the "paraprofessional" relationship, and, as such, is legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(2). 25. To the extent the Complaint is considered to be for the recovery of fees allegedly due and payable for the performance of "paraprofessional" services, the complaint does not have attached thereto a copy of any Fee Agreement and, as such, is legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(2). 26. To the extent the Complaint is considered to be for the recovery of fees allegedly due and payable for the performance of "paraprofessional" services premised upon a written contract, the Complaint does not have attached thereto a copy of any contract, agreement, document, or similar writing, and, as such, is legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(2). 27. The Complaint seeks payment based upon an alleged agreement; however, said complaint does not expressly indicate whether the Plaintiffs claim is based upon any oral agreements and/or written agreement (see, Pa. R.C.P. 1019(h)), and, as such, is legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(2). WHEREFORE, the Defendants respectfully requests that this Honorable Court GRANT the instant Preliminary Objections and dismiss the instant complaint with prejudice. iL Dated: Respectfully submitted, Robert M. M a, - pro se 840 Market Street - Suite 33333 Lemoyne, Pennsylvania 17043 (717) 612 - 9720 PRO SE - Individually and as Trustee 6 VERIFICATION I, Robert M. Mumma, II, Defendant, do hereby verify that any swemeaft of fact made in the foregoing document are true and cornea to the best of my lmowledge, infoanation and belief. I understand that any false statements therein are subject to the penalties contained in 18 Pa.C.S-k §4904, relating to tmswom falsification to authorities. Robert M. Mumma, II CERTIFICATE OF SERVICE I hereby certify that I caused a true and correct copy of the foregoing Preliminary Objections to Plaintiff's Complaint to be served as follows: By U.S. Mail, first class, postage prepaid: Robert W. Barton 2123 Chestnut Street Harrisburg, PA 17104 Pro se Plaintiff Dated: 03/??I -;?z tC Robert M. Mumma, If-- pro se 840 Market Street - Suite 33333 Lemoyne, Pennsylvania 17043 (717) 612 - 9720 Defendants PRO SE - Individually and as Trustee FILED-OFFICE OF THE PROTHONOTARY 2011 MAR 31 PM is 58 CU PENNSYLVICOUNTY Robert W. Barton, pro se 2123 Chestnut Street Harrisburg, Pennsylvania Telephone (717) 236-1123 robertwbarton@gmail.com ROBERT W. BARTON, Plaintiff, V. ROBERT M. MUMMA, II, Defendant, and ROBERT M. MUMMA, II, Trustee of the Robert M. Mumma, 11, Grantor Retained Annuity Trust, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION-LAW : NO. 2011 - 2142 CIVIL NOTICE YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED By ENTERING A WRITTEN APPEARCANCE PERSONALLY OR BY ATTORNEYAND (1LING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO [kPfO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHR NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OT OTHER PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA. 17103 1-800-990-9108 (717) 249-3166 Robert W. Barton, pro se 2123 Chestnut Street Harrisburg, Pennsylvania 17104 Telephone (717) 236-1123 robertwbarton@gmaii.com ROBERT W. BARTON, Plaintiff, V. ROBERT M. MUMMA, ll, Defendant, and ROBERT M. MUMMA, II, Trustee of the Robert M. Mumma, II, Grantor Retained Annuity Trust, Defendant : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA CIVIL ACTION-LAW NO. 2011 - 2142 CIVIL PLAINTIFF'S FIRST AMENDED COMPLAINT Pursuant to Rule 1028(c)(1) of the Pennsylvania Rules of Civil Procedure, Robert W. Barton as Plaintiff respectfully files this First Amended Complaint. 1. Plaintiff Robert W. Barton (Barton) is an adult individual who resides at 2123 Chestnut Street, Harrisburg, Dauphin County, Pennsylvania 17104. 2. To the best of Barton's knowledge, Defendant Robert M. Mumma, II, (herein Defendant Mumma), maintains an office and/or a place of business at 840 Market Street, Lemoyne, Cumberland County, Pennsylvania 17043. 3. To the best of Barton's knowledge, Defendant Robert M. Mumma, II, maintains a residence at 6880 S.E. Harbor Circle, Stuart, Florida. 1 4. To the best of Barton's knowledge, Defendant Robert M. Mumma, II, maintains a residence with a mailing address of Box 58, Bowmansdale, Pennsylvania 17008 and/or Box E, Bowmansdale, Pennsylvania 17007. 5. To the best of Barton's knowledge, Defendant Robert M. Mumma, II, is Trustee of the Robert M. Mumma, II, Grantor Retained Annuity Trust. 6. On or about November 1, 2006, at the request of Defendant Robert M. Mumma, II, Plaintiff Barton began providing paraprofessional services for the Defendant Mumma. 7. From on or about November 1, 2006, until on or about March 1, 2008, Barton provided his paraprofessional services to Defendant Mumma as an employee of the Law Offices of Eric J. Wiener, LLC, 2407 Park Drive, Harrisburg, Pennsylvania 17110. 8. Such paraprofessional services provided by Barton were generally in the nature of paralegal services and such services were generally performed at Wiener's office at 2407 Park Drive, Harrisburg, at Barton's offices at Chestnut Street in Harrisburg, and at Mumma's offices at 840 Market Street, Lemoyne, Cumberland County, Pennsylvania 17043. 9. According to averments by Attomey Wiener in litigation between Wiener and Mumma docketed at 08-5096 Civil Term in this Court, Barton's paraprofessional services were provided to Mumma pursuant to a Fee Agreement between Wiener and Mumma, see 113 therein, but Barton does not have direct knowledge of that fact. 10. Barton's statements for his services were billed to Defendant Mumma by Wiener and were sporadically paid by Defendant Mumma to Wiener, and Barton does 2 not claim entitlement to payment from Mumma for his services from November 1, 2006, until March 1, 2008 in this suit. 11. On or about March 1, 2008, Barton and Wiener terminated their relationship as employer and employee and Barton has continued to provide paraprofessional services to Mumma as an independent contractor and successor in interest. 12. Such paraprofessional services were provided pursuant to a verbal contract between Barton and Mumma whereby Mumma agreed to pay Barton ninety dollars ($90) per hour for those services. 13. Since on or about March 1, 2008, Barton has submitted his Statements for services rendered by him directly to Mumma and those Statements have been sporadically and intermittently paid by Mumma or some entity acting on Mumma's behalf and at Mumma's instruction. 14. Since on or about March 1, 2008, Barton has provided his paraprofessional services to Mumma under the supervision and direction of James G. Gault, Esquire, 840 Market Street, Suite 153, Lemoyne, Pennsylvania 17043, who is licensed to practice law by the Commonwealth of Pennsylvania, as Barton was instructed to do by Mumma and Gault. 15. At all times since on or about March 1, 2008, Barton's services have been provided in compliance with all rules regulating the provision of paraprofessional services and Defendant Mumma has accepted the benefits of those services without any objection whatsoever. 3 16. At all times since on or about March 1, 2008, Defendant Mumma and his Attorney Gault were aware that Barton was not licensed to practice law in Pennsylvania and they accepted the benefits of Barton's services without objection. 17. On or about July 1, 2010, Defendant Mumma and Attorney Gault asked Plaintiff Barton to provide paraprofessional services to Mumma under the direction of Gault in a case then pending in the Dauphin County Court of Common Pleas at No. 5381 Equity 1996 and docketed as Martin G. Grass and Mark G. Caldwell, trading as Double M Development v. Robert M. Mumma II and Susan Mumma, Trustee of the Robert M. Mumma, II, Grantor Annuity Retained Trust v. Robert M. Mumma, II, Intervenor (herein the GRAT case). 18. Since on or about July 1, 2010, Barton has provided paraprofessional services to Defendant Mumma and Robert M. Mumma II, Trustee of the Robert M. Mumma, II, Grantor Annuity Retained Trust v. Robert M. Mumma, II, Intervenor, as instructed to do by Mumma and Gault. 19. The GRAT case involved a Judgment that had been entered against the Defendants Robert M. Mumma 11 and Susan Mumma in the approximate amount of $902,242.57 (Nine Hundred Thousand Two Hundred Forty Two and 57/100 dollars). See Docket entries at page 14 of No. 5381 Equity 1996 of the Dauphin County Court of Common Pleas. 20. The Trial Court in the GRAT case, per the Honorable Todd A. Hoover, had ordered the imposition of sanctions against Defendants Robert M. Mumma II and Susan Mumma for their failure to comply with a Court Order so the Judgment in that case is increasing by $1000 (One Thousand Dollars) per day. 4 21. The Judgment in the GRAT case now totals approximately $2,000.000 (Two Million Dollars). 22. The paraprofessional services provided by Plaintiff Barton have directly benefitted Defendant Robert M. Mumma, 11, and Defendant Robert M. Mumma, II, Trustee of the Robert M. Mumma, II, Grantor Retained Annuity Trust. 23. Plaintiff has regularly sent to Defendant Robert M. Mumma, II, Statements of the amounts owed to him by Defendant Robert M. Mumma, 11. 24. As of November 22, 2010, Defendant Mumma had incurred an indebtedness of an unpaid balance owed to Barton in the amount of $8945, Defendant Mumma has not paid Barton anything since November 19, 2010, and Defendant Mumma has incurred additional indebtedness to Barton since November 22, 2010. See Exhibit 1. 25. On other occasions since November 22, 2010, Defendant Mumma has requested Plaintiff Barton to provide additional paraprofessional services to Defendant Mumma and Defendant Mumma has expressly and tacitly approved the quality of those services and the reasonable value of those services reflected in the Statements submitted to Defendant Mumma by Barton. 25. On frequent occasions since November 22, 2010, James G. Gault, Esquire, acting as legal counsel for Defendant Mumma, has expressly and tacitly approved the quality of the services rendered by Barton to Mumma. 26. Defendant Mumma and his attorney Gault have expressly and tacitly approved Barton's services by their conduct and repeated practice of signing and filing verbatim copies of drafts of pleading and briefs that had been prepared and submitted by Barton to Defendant Mumma and his attorney Gault. 5 27. As of February 10, 2011, Defendant Robert M. Mumma, 11, owed Plaintiff Barton a principal sum of $12,365 for services rendered by Barton to Mumma. 28. Since on or about November 22, 2010, Plaintiff Barton has repeatedly demanded payment of the amount owed to him by Defendant Mumma and Mumma has continuously admitted his obligation to pay those debts but has refused to pay those debts. 29. On or about March 23 or March 25, 2009, Defendant Mumma signed a Mutual Release and Settlement Agreement that released Plaintiff Barton from any and all claims that Mumma had against Barton and that Release should bar Mumma from asserting any claims against Barton in this case. 30. The amount at issue does not exceed the sum of $50,000, so this matter should be referred to compulsory arbitration. WHEREFORE Plaintiff Robert W. Barton respectfully requests relief as follows: (a) entry of a Judgment in favor of Robert W. Barton and against Robert M. Mumma, 11, in such an amount as will compensate Barton for all services provided by Barton to Mumma, which amount requires reference of this matter to compulsory arbitration; and (b) inclusion in such Judgment such amount as will compensate Plaintiff for interest, delay damages, and costs of suit; and (c) such other further relief as is proper. Dated: Respectfully subm' 3 S Cr Robert W. Barton, pro se 2123 Chestnut Street Harrisburg, Pennsylvania 17104 Telephone (717) 236-1123 robertwbarton@gmail.com 6 VERIFICATION Pursuant to the penalties of 18 Pa.C.S. § 4902, 1 hereby verify that the facts herein are true. Dated: Robert W. Barton CERTIFICATE OF SERVICE I hereby certify that I served the foregoing Answer by placing a true and correct copy thereof in the United States mail, first class postage prepaid, addressed as follows: Robert M. Mumma, II 840 Market Street, Suite 158 Lemoyne, PA. 17043 ""'aced: Robert W. Barton 7 I ROBERT W. BARTON, Plaintiff V. ROBERT M. MUMMA, II, Defendant V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2011 - 2142 CIVIL TERM ROBERT M. MUMMA, II, CIVIL ACTION -LAW Trustee of the Robert M. Mumma II Grantor Retained Annuity Trust, Defendant ORDER OF COURT ro3 rnm Qwrn x? rx t? ?o z i -v s w rn 0 rn? -Orn =Q o? a "n aCl) AND NOW, this 31St day of MARCH, 2011, a hearing/argument on Defendant's Motion to Quash will be held on TUESDAY, APRIL 12, 2011, at 11:00 a.m. in Courtroom # 3, Cumberland County Courthouse, Carlisle, Pa. By the Court, Edward Guido J Robert W. Barton Robert M. Mumma, II Oed Coe> H 111 A0 E. , . :sld ROBERT W. BARTON, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. ROBERT M. MUMMA, II, Defendant, and NO. 2011-2142 CIVIL TERM C) na rn- z' r (n rn ? , ca CD i-- -q c) Z. A C.5-n C) • C) rrn ROBERT M. MUMMA, II, Trustee of the Robert M. Mumma, II, Grantor Retained Annuity Trust, Defendant CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 12th day of April, 2011, after having reviewed the complaint, the Defendant's Motion to Quash and the Plaintiff's Response, the Motion to Quash is granted without prejudice to Plaintiff to re-file the subpoena if a counterclaim is raised in this action. We note for the record that the only valid basis we saw in Defendant's Motion to Quash was the relevance of the requested document. If a counterclaim is filed, and the Defendant files a Motion to Quash raising any of the arguments raised in this current motion, we will consider imposing sanctions. ? Robert W. Barton 2123 Chestnut Street Iv' Harrisburg, PA 17104 Plaintiff, Pro se 0Op?11-41 ? V/ Robert M. Mumma, II 840 Market Street, Suite 158 Lemoyne, PA 17043 Defendant, Pro se, Individually and and Trustee srs ROBERT W. BARTON, Plaintiff V. ROBERT M. MUMMA, II, Defendant and ROBERT M. MUMMA, II, Trustee of the Robert M. Mumma, II Grantor Retained Annuity Trust, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2011 - 2142 CIVIL r) c CIVIL ACTION - LAW am x; rv CZ) XC C -- -? Ul PRELIMINARY OBJECTIONS TO FIRST AMENDED COMPLAINT TO: ROBERT W. BARTON - pro se Plaintiff YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED PRELIMINARY OBJECTIONS WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. AND NOW, comes Robert M. Mumma, II, pro se Defendants, individually and as Trustee, who files the following Preliminary Objections to the Plaintiff s First Amended Complaint pursuant to Pa.R.C.P. 1028(a)(2) through (4) stating as follows: 1. On or about March 31, 2011, Plaintiff filed a First Amended Complaint against the Defendants seeking the total sum of $12,365 with respect to amounts allegedly due for ?M -sue "paraprofessional" services which were generally "in the nature of paralegal services," and were done so as "an independent contractor." 1 2. Although ¶24 of Plaintiff's First Amended Complaint references "See Exhibit 1," no such exhibit or other writing was attached to the copy of the First Amended Complaint served upon Defendants on or about March 31, 2011. 3. Accordingly, Plaintiff's First Amended Complaint does not have attached thereto any copies of any contracts, emails, letters, or any other writings. 4. Plaintiff is identified in Paragraph 1 of the Complaint as "Robert W. Barton", an adult individual who resides at 2123 Chestnut Street, Harrisburg, Dauphin County, Pennsylvania 17104. 5. Plaintiff was previously a licensed attorney in the Commonwealth of Pennsylvania - ID No. 15616; however, he was disbarred on consent on February 10, 1998 (117 DB 97). 6. As depicted by the averments in Plaintiff's First Amended Complaint, Plaintiff was previously employed by Attorney Eric Wiener; Plaintiff was privy to confidential information that arose in the context of the work which he performed for Defendants. 7. Furthermore, Plaintiff is aware that Attorney Wiener previously filed suit against Defendant Mumma and Plaintiff is aware that Plaintiff s previous work performed while employed by Attorney Wiener was the subject of Attorney Wiener's suit against Defendant Mumma. Said prior litigation instituted by Attorney Wiener encompassed time periods, files, pleadings, legal representation, and related matters attendant to Attorney Wiener and his law practice which are not relevant to the alleged amount at issue ($12,365) sought by Plaintiff in the above-captioned action. 9. Paragraph 22 of Plaintiff's First Amended Complaint avers that Defendants have been "directly benefitted" by Plaintiff's "paraprofessional" services; however, Plaintiff s services 2 performed in several matters were not only inadequate and incompetent, but, as a result thereof, caused Defendants economic harm and/or setbacks or losses in several matters of litigation. 10. Plaintiff's Complaint fails to set forth a cognizable cause of action; the complaint also fails to set forth any causes of action and any special damages related thereto in separate counts. 11. Plaintiff s Complaint avers that an account has been stated against the Defendants for the sum of $12,365; however, the complaint does not aver that Defendants (individual or as Trustee) ever acquiesced, assented, and/or agreed to the account rendered, and, accordingly, for this reason and others, the complaint fails to plead properly any action based upon an account stated. 12. Although seeking payment of fees for "paraprofessional" services performed by Plaintiff, the complaint does not plead nor aver the existence of any recognized"paraprofessisonal" relationship wherein Defendants acknowledged, recognized, or accepted Plaintiff as a "paraprofessional." 13. Although seeking payment of fees for "paraprofessional" services performed by Plaintiff, the complaint does not plead nor aver the existence of any Fee Agreement entered into before or within a reasonable time after the commencement of any "professional" or "paraprofessisonal" relationship. 14. Although seeking payment of fees for "paraprofessional" services performed by Plaintiff, the complaint does not have attached thereto a copy of any Fee Agreement entered into before or within a reasonable time after the commencement of any "professional" or "paraprofessisonal" relationship. 15. Plaintiff s First Amended Complaint avers generally that Plaintiff's "paraprofessional" services were expressly or tacitly approved by Defendant or other legal counsel by the "repeated practice" of signing and filing "verbatim copies of pleading and briefs", but fails to specifically aver the existence of said alleged approval of said verbatim copies with respect to any matters comprising the amount at issue ($12,365). 16. Plaintiff's First Amended Complaint, while purportedly seeking recovery of the alleged amount at issue ($12,365), contains averments respecting Plaintiffs "paraprofessional" services related to "the GRAT case" in Dauphin County, only to further include averments respecting that Court's Order for per diem sanctions and an approximate total judgment now in effect. 1. MOTION TO DISMISS FOR INSUFFICIENT SPECIFICITY IN A PLEADING AS TO AN ACCOUNT STATED THEORY OF RECOVERY PURSUANT TO Pa.R.C.P. 1028(a)(3). 17. Defendants hereby incorporate all preceding paragraphs of the Preliminary Objections as though fully set forth at length herein. 18. Plaintiff s First Amended Complaint seeks amounts due under an account stated theory of recovery; however, the First Amended Complaint insufficiently pleads the requisite facts necessary to support this theory of recovery. 19. The First Amended Complaint fails to plead sufficiently the nature or extent of the following elements of an account stated: (i) That the Defendants ever acquiesced, assented, or agreed to the account rendered of $12,365; (ii) That there was ever any acceptance of the account rendered of $12,365; (iii) That all of the services performed relative to the alleged account were satisfactory to the Defendants; and/or (iv) That the services performed relative to the alleged account were competent and adequate under the appropriate standards governing the nature of the work performed. 4 20. To the extent the First Amended Complaint purports to seek recovery of the alleged amounts due under an account stated theory of recovery, yet fails to aver with specificity the appropriate elements of such a theory or action, same is legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(3). II. MOTION TO DISMISS FOR LEGAL INSUFFICIENCY OF A PLEADING (DEMURRER) PURSUANT TO Pa.R.C.P. 1028(a)(4). 21. Defendants hereby incorporate all preceding paragraphs of the Preliminary Objections as though fully set forth at length herein. 22. The First Amended Complaint seeks payment of a specified total amount under an account stated theory of recovery without asserting the necessary and requisite facts which would support the application of such a theory of recovery in this matter, and, as such, is legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(4). 23. To the extent that the First Amended Complaint seeks payment based upon any contractual theory of recovery for "paraprofessional" services which were generally "in the nature of paralegal services," and were done so as "an independent contractor," said theory of recovery is inapplicable given that Plaintiff cannot recover for said professional services inasmuch as he was previously disbarred on consent, and said averments may further implicate the Plaintiff as seeking payment for the unauthorized practice of law which is governed by the Rules of Professional Conduct; as such, Plaintiff's First Amended Complaint is legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(4). 24. To the extent that the First Amended Complaint seeks payment under the premise that all of the Plaintiff's "paraprofessional" services were "expressly and tacitly" approved by other legal counsel for Defendants, Plaintiff fails to plead the requisite authority or permission, or other binding relationship, or other facts establishing same, especially in light of Plaintiff's direct knowledge that Defendant alone exercised any such final approval. 25. To the extent that the First Amended Complaint seeks payment under the premise that all of the Plaintiff's "paraprofessional" services were under the "supervision and direction" of other legal counsel for Defendants, Plaintiff fails to plead the requisite authority or permission, or other binding relationship, or other facts establishing same, especially in light of Plaintiff's direct knowledge that Defendant alone exercised such direction and instruction. 26. The First Amended Complaint references generally that Plaintiff's services were provided "in compliance with all rules regulating the provision of paraprofessional services" without specifying the source of said rules or otherwise citing to any legal authority in support of said averments. See also, ¶12 above. 27. The First Amended Complaint fails to set forth an appropriate theory of law upon which its demand for payment must be granted, and, as such, is legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(4). III. MOTION TO DISMISS FOR FAILURE OF A PLEADING TO CONFORM TO LAW PURSUANT TO Pa.R.C.P. 1028(a)(2). 28. Defendants hereby incorporate all preceding paragraphs of the Preliminary Objections as though fully set forth at length herein. 29. To the extent the First Amended Complaint is considered to be in the nature of a suit on a written contract, the First Amended Complaint does not have attached thereto a copy of any contract, agreement, document, or similar writing signed by the Defendant, and, as such, is 6 legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(2). See also, ¶¶ 2, 3 above. 30. The First Amended Complaint seeks payment based upon an account stated theory of recovery; however, said theory of recovery is inapplicable to the "paraprofessional" relationship, and, as such, is legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(2). 31. To the extent the First Amended Complaint is considered to be for the recovery of fees allegedly due and payable for the performance of "paraprofessional" services, the First Amended Complaint does not have attached thereto a copy of any Fee Agreement and, as such, is legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(2). 32. To the extent the First Amended Complaint is considered to be for the recovery of fees allegedly due and payable for the performance of "paraprofessional" services premised upon a written contract, the First Amended Complaint does not have attached thereto a copy of any contract, agreement, document, or similar writing, and, as such, is legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(2). 33. The First Amended Complaint contains impertinent matter that is not germane to the Plaintiff's alleged amount in issue ($12,365). See also, ¶16 above. As such, same is legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(2). 7 VVIIEREFORE, the Defendants respectfully requests that this Honorable Court GRANT the instant Preliminary objections and dismiss Plaintifrs First Amended Complaint with prejudice. Respectfully submitted Dated: April 20, 2011 Ro M. Mumma, II - pro se 840 Market Street - Suite 33333 Lemoyne, Pennsylvania 17043 (717) 612 -9720 PRO SE - Individually and as Trustee 8 VERMCATION I, Robert M. Mumma, II, Defendant, do hereby verify that any s of fact made in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that any false statements therein are subject to the penalties contained in 18 Pa.C.SA - §4944, relating to umsworn falsification to authorities. Robert M. Muunma, ll CERTIFICATE OF SERVICE I hereby certify that I caused a true and correct copy of the foregoing Preliminary Objections to Plaintiff's Complaint to be served as follows: By U.S. Mail, first class, postage prepaid: Robert W. Barton 2123 Chestnut Street Harrisburg, PA 17104 Pro se Plaintiff ? c Dated: April 20, 2011 R bert M. umma, II - pro se 840 Market Street - Suite 33333 Lemoyne, Pennsylvania 17043 (717) 612 - 9720 Defendants PRO SE - Individually and as Trustee 9 ROBERT W. BARTON, : IN THE COURT OF COMMON PLEAS Cf Plaintiff : CUMBERLAND COUNTY, ? PENNSYLVANIA : -I V. r- C-) ) - No. 2011 - 2142 CIVIL ?o -- •• a ROBERT M. MUMMA 11 X , Defendant, and CIVIL ACTION - LAW (Judge Guido) ROBERT M. MUMMA, II, Trustee : of The Robert M. Mumma, II, Grantor Retained Annuity Trust, Defendant PLAINTIFF'S RESPONSE TO PRELIMINARY OBJECTIONS OF DEFENDANTS Plaintiff Robert W. Barton respectfully submits the following as his Response to the Preliminary Objections filed herein by the Defendants. 1. - 8. Plaintiff admits the averments in ¶¶ 1 through 8 of the Preliminary Objections. 9. Plaintiff denies the averments in 119 of the Preliminary Objections. The Defendant has not yet pleaded with any specificity how Plaintiff's services were "inadequate and incompetent" because (a) there is no evidence whatsoever to support such details, and (b) any such claims by the Defendant would be barred by a Release and Satisfaction signed by Defendant on the advice of his attorney, James G. Gault, Esquire. Indeed, the Defendant's failure to plead any facts to support his averments is itself evidence that no such facts exist. And the Defendant's refusal to produce a copy cif the Release and Satisfaction is evidence that the Release would bar any claims by Defendant against the Plaintiff. In sum, any claims by the Defendant against the Plaintiff are absolutely frivolous. 10. -14. Plaintiff denies the averments in ¶¶ 10 through 14 of the Preliminary Objections. The Amended Complaint specifically avers that the Plaintiff and Defendant Mumma verbally agreed that Plaintiff would perform services for Defendant Mumma, 1 12, that Plaintiff performed those services, ¶¶ 14, 15, 18, 22, 25, and 26, and that Defendant failed to pay Plaintiff as Mumma had promised. 1128. Hence, the Complaint clearly pleads an action for breach of contract. Plaintiff admits that he and Mumma never signed a written Fee Agreement; their Agreement was verbal. 15. -16. Plaintiff denies the averments in ¶1115 and 16 because those averments are incomprehensible. Plaintiff respectfully incorporates in these paragraphs the averments in ¶111 through 14 in support of these denials. 17. - 22. Plaintiff denies the averments in ¶¶ 17 through 22 as those paragraphs raise the argument that Plaintiff has failed to state a right to relief "under an account stated theory of recovery." As averred in IM 10 through 14, Plaintiff's claim for relief is based on a theory of breach of contract, not "an account stated" theory. 23. Plaintiff denies the averment in 123 that his services were unauthorized. At ¶¶ 15 and 16 of the Complaint, Plaintiff has averred that he complied with all rules and regulations relating to his provision of paraprofessional services to Defendant Mumma and Mumma has not cited any authority to the contrary because there is no such authority. Furthermore, at 1116, Plaintiff has averred that Defendant Mumma and his attorney James Gault, Esquire, were aware at all times that Plaintiff was not licensed to practice law and they at all times accepted the benefits of Plaintiffs services without question or objection. Indeed, at ¶¶ 25 and 26, the Complaint specifically avers that Mumma and Gault "explicitly and tacitly approved the quality of the services rendered z by Barton to Mumma." In sum, the Defendant has not presented any evidence or authority that his services were unauthorized because there is no such evidence or authority. 24. - 25. At ¶¶ 24 and 25, the Defendant Mumma denies that his attorney Gault was authorized to speak on his behalf. That averment is a matter of proof that Defendant Mumma has admitted for purposes of his demurrer to the Complaint. Indeed, Attorney Gault and Defendant Mumma explicitly and tacitly represented that Attorney Gault was authorized to bind Defendant Mumma. 26. Plaintiff denies the averment in 126 that his services were unauthorized. At ¶¶ 15 and 16 of the Complaint, Plaintiff has averred that he has complied with all rules and regulations relating to his provision of paraprofessional services to Defendant Mumma and Mumma has not cited any authority to the contrary because there is no such authority. Furthermore, at 1116, Plaintiff has averred that Defendant Mumma and his attorney James Gault, Esquire, were aware at all times that Plaintiff was not licensed to practice law and they at all times accepted the benefits of Plaintiff's services without question or objection. Indeed, at 1M 25 and 26, the Complaint specifically avers that Mumma and Gault "explicitly and tacitly approved the quality of the services rendered by Barton to Mumma." In sum, the Defendant has not presented any evidence or authority that his services were unauthorized because there is no such evidence or authority. 27. Plaintiff denies the averments in ¶ 27of the Preliminary Objections. The Amended Complaint specifically avers that the Plaintiff and Defendant Mumma verbally agreed that Plaintiff would perform services for Defendant Mumma, ¶ 12, that Plaintiff 3 performed those services, ¶¶ 14, 15, 18, 22, 25, and 26, and that Defendant failed to pay Plaintiff as Mumma had promised. % 28. Hence, the Complaint clearly pleads an action for breach of contract. Plaintiff admits that he and Mumma never signed a written Fee Agreement; their Agreement was verbal. 28. - 32. Plaintiff admits that there is no written Agreement attached to the Complaint. Plaintiff also denies that his theory of recovery is based on an account stated theory. Plaintiff has made absolutely clear that his claim is based on a breach of a verbal contract. 33. The averments in 133 of the Preliminary Objections are incomprehensible, since Defendant Mumma fails to state any reason whatsoever for his argument, so Plaintiff denies those averments. WHEEFORE Plaintiff Robert W. Barton respectfully submits that the Court should deny the Preliminary Objections of the Defendant. Dated: Respectfully submitted, Robert W. Barton, pro se 2123 Chestnut Street Harrisburg, Pennsylvania 17104 (717) 236-1123 robertwbarton@gmaii.com 4 VERIFICATION Pursuant to the penalties of 18 Pa.C.S. 14902, 1 hereby verify that the facts in the foregoing Response are true. 7.41 Robert W. Barton CERTIFICATE OF SERVICE I hereby certify that I served the foregoing Response by placing a true and correct copy thereof in the United States mail, first class postage prepaid, addressed as follows: Robert M. Mumma, II 840 Market Street, Suite 158 Lemoyne, PA 17043 Robert W. Barton 5 ROBERT W. BARTON, V. Plaintiff ROBERT M. MUMMA, II, and IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2011 - 2142 CIVIL CIVIL ACTION - LAW ROBERT M. MUMMA, II, Trustee of the ?w Robert M. Mumma, II Grantor Retained z ?" Annuity Trust, C/) -<)> r- C-5 C? Defendant * C -- X 2: C) ' DEFENDANTS' MOTION TO QUASH = PLAINTIFF'S SECOND NOTICE TO PRODUCE DOCUMENTS` c7 Pursuant to Pa.R.C.P. 234.4(b), the pro se Defendants Robert M. Mumma, II, individually and as Trustee, respectfully move this Court for an Order to quash the Plaintiff's Second Notice to Produce Documents. In support of this motion, Defendants aver as follows: Pursuant to Pa.R.C.P. 234.4, the Court has the power to protect a party from unreasonable annoyance, embarrassment, oppression, burden or expense in connection with the service of a Notice to Produce Documents. 2. On March 2, 2011, Defendants were served with a Complaint filed by Plaintiff on or about February 23, 2011; after preliminary objections were filed, Plaintiff filed an Amended Complaint on or about March 31, 2011 to which Defendants filed Preliminary Objections on April 20, 2011. After Plaintiff filed a Response to the Preliminary Objections on or about May 1, 2011, Plaintiff listed the case for oral argument which is scheduled for Friday, May 27, 2011. Defendant 3. Previously, on March 14, 2011, Plaintiff hand-delivered and mailed to Defendant's' place of business a Notice to Produce Documents pursuant to Rule 234.3(b); said Notice directed the Defendants to produce the following documents on or before March 28, 2011 at 2123 Chestnut St., Harrisburg, PA 17104: "Any and all documents in your possession or under your control that relate to any settlement agreements between Robert M. Mumma, H and Eric J. Wiener, Esquire." 4. On March 22, 2011, Defendants filed a Motion to Quash the aforesaid Notice to Produce Documents. Said Motion to Quash averred, inter alia, that said Notice to Produce Documents sought information or material that was not relevant and was otherwise not germane to Plaintiff s cause of action. Plaintiff filed an Answer to said Motion to Quash on March 30, 2011. 5. In an Order dated April 12, 2011, this Court (per Judge Guido) determined that the requested document was not relevant and thereby granted the Defendants Motion to Quash. Therein, the Court further held in pertinent part that its Order was without prejudice to Plaintiff to re-file if "a counterclaim" is filed or is raised in this action. 6. At all material times hereto, Defendants have not yet filed "a counterclaim" against Plaintiff in this matter as is confirmed by the docket of this Court. 7. Notwithstanding the fact that no counterclaim was filed by Defendants to date, and notwithstanding this Court's prior Order granting the Defendants initial Motion to Quash on the express basis that the settlement agreement was not relevant to this action, Plaintiff served another Notice to Produce Documents on May 21, 2011 seeking the very same settlement agreement as follows: ""Any and all documents in your possession or under your control that relate to any settlement agreements between Eric J. Wiener, Esquire, and Robert M. Mumma, II. " 8. Plaintiff's Second Notice to Produce Documents indicates that Defendants are directed to produce the settlement agreement to the Plaintiff at his residence "on or before May 27, 2011." 9. As was the case before and as the case now remains, Plaintiff s second Notice to Produce Documents again seeks information or material that is not relevant and is otherwise not germane to Plaintiff's cause of action in this matter, as was previously determined by this Court in its Order dated April 12, 2011.1 10. As a result of Plaintiff's filing of the second Notice to Produce Documents, the Defendants should once again be protected from the unreasonable annoyance, embarrassment, oppression, burden or expense in connection with compliance with said notice to produce documents. 11. Because Plaintiff issued the second Notice to Produce Documents to obtain a copy of the settlement agreement, for purposes of C.C.R.P. 208.3(a)(9), Plaintiff does not consent to this motion to quash. 12. Judge Guido previously entered the prior Court Order dated April 12, 2011. 'In his Response filed on or about May 1, 2011, Plaintiff admitted that he was initially employed by Attorney Eric Wiener who had previously filed suit against Defendant Mumma regarding Plaintiff's prior work performed while employed by Attorney Wiener; therein Plaintiff further admitted that said prior litigation instituted by Attorney Wiener encompassed time periods, files, pleadings, legal representation, and related matters attendant to Attorney Wiener's law practice which are not relevant to the alleged amount at issue ($12,365) sought by Plaintiff in this action. (See, Plaintiff's Response at 18). Therefore, if Plaintiff has admitted that said prior litigation is not relevant to the relief requested in this action, then the settlement agreement regarding said prior litigation is likewise not relevant - as this Court has already determined in its Order dated April 12, 2011. Accordingly, Plaintiff's Second Notice to Produce Documents should likewise be quashed. WHEREFORE, for the foregoing reasons, Defendants respectfully request that this Court once again enter an appropriate Order which grants this Motion to Quash inasmuch as the requested settlement agreement is not relevant as previously determined by this Court in its Order dated April 12, 2011, and which grants such other and further relief that the Court deems just. Dated: a ?. l &4wvol' bert M. Mumma, II -pro se 840 Market Street - Suite 33333 Lemoyne, Pennsylvania 17043 (717) 612 - 9720 PRO SE - Individually and as Trustee 4 CERTIFICATE OF SERVICE I hereby certify that I caused a true and correct copy of the foregoing Motion to Quash to be served as follows: By U.S. Mail, first class, postage prepaid: Robert W. Barton 2123 Chestnut Street Harrisburg, PA 17104 Pro se Plaintiff Dated: NaA- 46 ert . Mumma, II - pro se 840 Market Street - Suite 33333 Lemoyne, Pennsylvania 17043 (717) 612 - 9720 Defendants PRO SE - Individually and as Trustee 5 ROBERT W. BARTON, Plaintiff V. ROBERT M. MUMMA, II Defendant, and ROBERT M. MUMMA, II, Trustee : of The Robert M. Mumma, It, Grantor Retained Annuity Trust, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : No. 2011 - 2142 CIVIL CIVIL ACTION - LAW (Judge Guido) c ? mm _ = z -a ° -? z 3> w m PLAINTIFF'S ANSWER TO DEFENDANT'S MOTION TO QUASH SECOND NOTICE TO PRODUCE DOCUMENTS Plaintiff Robert W. Barton respectfully submits this Answer to the Defendant's Second Notice to Produce Documents. 1. Plaintiff admits the conclusion of law in 11. 2. Plaintiff admits the procedural history in 112. By way of further Answer, Plaintiff avers that he filed a First Amended Compliant as of right on March 31, 2011 pursuant to Rule 1028(c) of the Pennsylvania Rules of Civil Procedure. On April 20, 2011, Defendant filed and served Preliminary Objections to Plaintiff's First Amended Complaint and those Preliminary Objections urged the Court to grant the Defendant's Preliminary Objections and dismiss the Complaint with prejudice. On May 3, 2011, Plaintiff filed a Response to the Defendant's Preliminary Objections urging the Court to 1 deny the Defendant's Preliminary Objections. Those Preliminary Objections are now pending before the Court. 3. - 5. Plaintiff admits the procedural history in ¶¶ 3-5 but Plaintiff denies the averments in the second sentence of paragraph 5. By way of further Answer, Plaintiff avers that the Plaintiff's First Amended Complaint was pending before the Court as of March 31, 2011 and thereafter, on April 12, 2011, when the Court resolved the Defendant's Motion to Quash. On its face, at paragraphs 6 through 8 of that First Amended Complaint, Barton pleaded that he served as an employee of Attorney Wiener and provided paraprofessional services to Mumma from November 1, 2006, until at least December 1, 2010. Accordingly, Barton served as an agent for both Wiener and Mumma during that period. And at paragraphs 10 through 15 of the Amended Complaint, Barton has alleged that he was an agent for Mumma, under the supervision of James G. Gault, Esquire, from March 1, 2008, through at least December 1, 2010. The Settlement Agreement at issue here was signed by Mumma and Wiener and was witnessed by Gault, it purports to release Mumma's and Wiener's claims against each other, and since Barton was an agent of each at various periods, the Mutual Release affects Barton's rights pursuant to the principle that that "the release of a principal acts as a release of the agent as well." See Willard v. Intemool Ltd.., 758 A.2d 684, 689 (Pa. Super. 2000), and Pallate v. Harcourt Brace Jovanovich Inc., 629 A.23 146 (Pa. Super. 1993) 6. - 7. Plaintiff denies the Defendant's characterizations of Plaintiff's pleadings in ¶¶ 6 and 7. As summarized in ¶¶ 3 though 5, which are incorporated herein, those pleadings are now substantially and qualitatively different than when the Court 2 previously granted the Defendant's Motion to Quash. Plaintiff now claims that the Mutual Release and Settlement Agreement signed by Mumma and Wiener is relevant because (a) those Agreements served to release Wiener's and Mumma's claims against each other at a time when Barton was an agent of either or both so (b) those Agreements released certain claims against Barton pursuant to the principle that "the release of a principal acts as a release of the agent as well." 8. Plaintiffs Second Notice speaks for itself. 9. -10. Plaintiff denies the averments in ¶¶ 9 and 10, for the reasons set forth in this Answer, which reasons are incorporated herein. 11. -12. Plaintiff admits the averments in ¶¶ 11 and 12. Footnote 1. Plaintiff denies the averments in footnote 1 at page 3 of Defendant's Motion because that footnote improperly characterizes a so-called prior admission by Plaintiff. Plaintiff has never stated that the prior litigation was not related to this case. Plaintiff Barton has contended throughout this case that the Settlement Agreement in the prior case is relevant here because that settlement was between persons who were agents of Barton and Mumma so that settlement will have an effect on the legal rights of Barton and Mumma. WHEREFORE, Plaintiff respectfully submits that the Court should deny the Motion to Quash filed herein by the Defendant. Dated: Re Illy submitted, Robert W. Barton, pro se 2123 Chestnut Street Harrisburg, Pennsylvania, 17104 (717) 236-1123 robertwbarton@gmail.com CERTIFICATE OF SERVICE I hereby certify that I served the foregoing Answer by placing a true and correct copy thereof in the United States mail, first class postage prepaid, addressed as follows: Robert M. Mumma, II 840 Market Street, Suite 158 Lemoyne, PA 17043 42?? 5 11 Robert W. Barton 4 3 ROBERT W. BARTON, Plaintiff V. ROBERT M. MUMMA, II, Defendant and IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2011 - 2142 CIVIL CIVIL ACTION - LAW ROBERT M. MUMMA, II, Trustee of the Robert M. Mumma, II Grantor Retained Annuity Trust, Defendant ORDER QUASHING SECOND NOTICE TO PRODUCE c CE, MW xM C,._ r F Z ?o -cm <> C° cv -0 -n 3:0C-3 =C) = o- X_ n y-c ca 5 --? CO AND NOW, this day of 2011, upon consideration of the Defendants Motion to Quash the Plaintif s Second Notice to Produce Documents, and any response thereto, it is hereby ORDERED that the Motion to Quash is GRANTED given that said second Notice to Produce seeks production of a settlement agreement which was previously held to be not relevant by the Court's Order dated April 12, 2011. The Plaintiff's Second Notice to Produce Documents is hereby QUASHED pursuant to Pa.R.C.P. 234.4(b). BY Robert W. Barton -Pro se 2123 Chestnut Street Harrisburg, PA 17104 Plaintiff Pro Se ,,,?obert M. Mumma, II - pro se 840 Market Street - Suite 33333 Lemoyne, PA 17043 Defendants Pro Se I - r t 'E _T 1?Le'3L L£L J. #38. ROBERT W. BARTON, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. ; ROBERT M. MUMMA, II V. CZ ROBERT M. MUMMA, II NO. 2011-2142 CIVIL TERM - »»--k) - ?- = Trustee of the Robert M. Mumma, II, Grantor Retained: Annuity Trust, CIVIL ACTION - LAW 'C7 =r_,`:F Defendant c-F fZ7 t-- C . ti 3 .. 1 IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS TO FIRST AMENDED COMPLAINT ORDER OF COURT AND NOW, this 9TH day of JUNE, 2011, Defendants' Preliminary Objections to the First Amended Complaint are OVERRULED. They are given twenty (20) days to file an answer. Robert W. Barton 2123 Chestnut Street Harrisburg, Pa. 17104 d Robert M. Mumma, II 840 Market Street Lemoyne, Pa. 17043 BEFORE HESS, P.J., GUIDO, JJ. Mlej Court Administrator - it1 bin B e Court, Edward E. Guido, J. :sld I= lEO-OFFICE OF HE PROTHONOTARY 2011 JUN 15 AM 11: 42 CIS PEEN YLOYANtUA TY ROBERT W. BARTON, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. No. 2011 - 2142 CIVIL ROBERT M. MUMMA, II Defendant, and CIVIL ACTION - LAW (Judge Guido) ROBERT M. MUMMA, II, Trustee : of The Robert M. Mumma, II, : Grantor Retained Annuity Trust, Defendant PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT Pursuant to Rule 1035.2 and Rule 1035.3 of the Pennsylvania Rules of Civil Procedure, Plaintiff Barton respectfully moves the Court to enter an Order of Summary Judgment in favor of Plaintiff and against Defendant Mumma for the following reasons. 1. Robert W. Barton is pursuing this action pro se, and his address and contact information are 2123 Chestnut Street, Harrisburg, Pennsylvania, 17104, (717) 236- 1123 (robertwbarton@gmail.com). 2. The Honorable Edward E. Guido has previously disposed of several issues that were raised in this case. 1 3. This an action by Plaintiff Barton to recover from Defendant Mumma compensation that Defendant had promised to pay to Barton for services rendered by Barton to Mumma and for which Mumma had verbally agreed to pay to Barton. 4. Throughout the course of these proceedings, Defendant Mumma has alleged that he intends to assert claims against Barton for damages incurred by Mumma as a result of Barton's conduct. See, e.g., 18 of Defendant's Preliminary Objections to Plaintiffs First Amended Complaint. 5. Defendant's claims will and should fail because Defendant will be unable to establish that there is any genuine issue of material fact by which Defendant Mumma could prove that he has not released Plaintiff of any and all causes which Plaintiff has against Defendant. 6. To state the proposition affirmatively, Defendant Mumma's averments in the record of this case the record unequivocally confirm that Defendant Mumma has signed a document or documents that release and discharge Plaintiff Barton from any and all claims that Defendant Mumma might have against Plaintiff Barton, so Plaintiff is entitled to judgment against Defendant as a matter of law. 7. Indeed, the pertinent facts are matters of public record or have been have been introduced into the record by Defendant himself. 8. By way of example but not of limitation, at page 2 of his verified Motion to Quash Plaintiffs Notice to Produce, Defendant Mumma avers and confirms that Plaintiff Barton that "was previously employed by Attorney [Eric J.] Wiener." 9. And in his Preliminary Objections to Barton's First Amended Complaint, at paragraphs 6 through 8 of the First Amended Complaint, Defendant Mumma admitted 2 that Barton provided paraprofessional services to Mumma from November 1, 2006, until at least December 31, 2010. 10. At Exhibit 1 to Plaintiff's Answer to Defendant's Motion to Quash, Defendant Mumma confirmed that he had signed a document, a copy of which is attached as Exhibit 1 to this Motion and is entitled Praecipe to Settle, Discontinue and End. That document is a matter of public record at the website maintained by this Court at Case No. 08-5096. 11. That document was signed by Attorney Wiener and by James G. Gault, Esquire, as Attorney for Defendant on behalf of Robert M. Mumma, ll, the Defendant in this case. 12. In his Motion to Quash filed herein on March 22, 2011, Defendant Mumma confirmed that he and Attorney Wiener had executed the Praecipe to Settle, Discontinue and End, and Defendant Mumma characterized that document as a Mutual Release and Settlement Agreement. See paras. 6 and 7 of Mumma's Motion to Quash filed March 22, 2011. 13. Indeed, Mumma has affirmatively stated that he signed that Mutual Release on the advice of his counsel. See 117 of Defendant Mumma's Motion to Quash. 14. In summary, Defendant Mumma and Attorney Wiener have both admitted that they executed a document entitled Mutual Release and Settlement Agreement. 15. Furthermore, Plaintiff believes and therefore avers that the Release signed by Defendant Mumma and Attorney Wiener contained an averment that the Release was intended to release all parties from all past and future claims, as is the case with most forms of releases. 3 16. Pennsylvania law is absolutely clear that "the release of a principal acts as a release of the agent as well." See Willard v. Inter-pool Ltd., 758 A.2d 684, 689 (Pa. Super. 2000), and Pallate v. Harcourt BraceJovanovich Inc., 629 A.23 146 (Pa. Super. 1993). 17. Hence, Pennsylvania law is absolutely clear that Mumma will have released Barton from all obligations to Mumma if Barton can show that Mumma has released Wiener or Mumma from their obligations to Barton. 19. Defendant has an obligation to prove that the Release signed by him and Wiener by did not release Barton, and Defendant cannot meet that burden. 20. In fact, the Mutual Release and Settlement Agreement signed by Defendant Mumma constitutes a binding and complete settlement and release of all claims between Mumma and Wiener and all persons claiming through each or either of them, including Barton. 21. This Motion is properly asserted at this time, before the close of discovery, because additional discovery would not aid in the establishment of any further material facts. See, e.g., Manzetti v. Mercy Hospital of Pittsburgh, 776 A.2d 938 (Pa. 2001) and Pancras v. UNUM Life Insurance Co., 856 A.2d 183 (Pa. Super. 2004). 22. In sum, Rule 1035.2 authorizes entry of summary judgment in "the absence of any evidence sufficient to permit a jury to find a fact essential to the cause of action or defense." See Explanatory Note -1996 to Rule 1035.3. 23. And Rule 1035.3 mandates that a party responding to a motion for summary "must [identify] evidence in the record establishing the facts essential to ... the defense which the motion cites as not having been produced." 4 24. For purposes of this Motion, Plaintiff Barton submits that the Defendant Mumma is obligated to identify evidence in the record to establish his claims that Mumma has not released Barton's claims against him. 25. Barton submits that Mumma will be unable to identify such evidence. WHEREFORE Plaintiff Barton respectfully submits that the Court should grant Barton's Motion for summary judgment that Barton is entitled to judgment that Mumma has released Barton's claims against him. Dated: Respectfully submitted, 6/14/11 zt4--a5? Robert W. Barton, pro se 2123 Chestnut Street Harrisburg, Pennsylvania 17104 (717) 236-1123 robertwbarton@gmail.com CERTIFICATE OF SERVICE I hereby certify that I served the foregoing Motion by placing a true and correct copy thereof in the United States mail, first class postage prepaid, addressed as follows: Robert M. Mumma, II 840 Market Street, Suite 158 Lemoyne, PA 17043 6/14!11 Robert W. Barton 5 ROBERT W. BARTON, Plaintiff V. ROBERT M. MUMMA, II, Defendant and ROBERT M. MUMMA, II, Trustee of the Robert M. Mumma, II Grantor Retained Annuity Trust, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2011 - 2142 CIVIL CIVIL ACTION - LAW ,1 ANSWER AND NEW MATTER WITH COUNTERCLAIM OF DEFENDANTS TO AMENDED COMPLAINT NOTICE TO PLEAD: TO: ROBERT W. BARTON - PRO SE PLAINTIFF YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER AND COUNTERCLAIM WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. AND NOW, comes Robert M. Mumma, II, pro se Defendants, individually and as Trustee, who files the following Answer and New Matter with Counterclaim to Plaintiff's Amended Complaint stating as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Denied. Any such Box is located at Grantham, not Bowmansdale. 5. Denied as stated. While once a trustee, said trust has expired by its terms. 1 6. Denied as stated. While Plaintiff has provided research and writing services in the nature of legal work in the past, Plaintiff never previously designated same as `paraprofessional services.' 7. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations of 17 of the Amended Complaint, and therefore said allegations are denied. 8. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations of ¶ 8 of the Amended Complaint, and therefore said allegations are denied. 9. No response required inasmuch as said averment pertains to written documents which speak for themselves. 10. Admitted in part; denied in part. It is admitted that Wiener was paid for any legitimate statements for any legitimate services. Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations of ¶ 10 of the Amended Complaint, and therefore said allegations are denied. 11. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations of ¶ 11 of the Amended Complaint, and therefore said allegations are denied; by way of further reply, said averments are denied to the extent same constitute legal conclusions and therefore require no reply in a responsive pleading. 12. Admitted in part; denied in part. It is admitted that Barton was paid $90 per hour for legitimate services provided in the past; it is denied that Barton is entitled to payment for services that failed to meet the ordinary standard of conduct expected and consistent with his profession or his paraprofession at large. 13. See response above at ¶ 12. 2 14. Denied. It is denied that Barton provided "paraprofessional services" under the supervision and direction of Gault. It is further denied that Mumma and/or Gault ever instructed Barton to provide "paraprofessional services" to Mumma under the supervision and direction of Gault. By way of further denial, any services provided by Barton in the past were performed independently. By way of further denial, any projects assigned to Barton in the past were his responsibility alone and were expected to be completed independently and without any direction from Gault. By way of further denial, at most Gault would review Barton's work for formatting for proper printing and filing, and sometimes for grammar, spelling, punctuation, etc., but not for content or analysis. 15. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations of ¶ 15 of the Amended Complaint, and therefore said allegations are denied; by way of further denial, it is denied that Mumma never objected to said services - See response above at ¶ 12. By way of further reply, said averments are denied to the extent same constitute legal conclusions and therefore require no reply in a responsive pleading. 16. Admitted in part; denied in part. It is admitted that Barton's prior disbarment was known to Mumma and Gault. By way of further reply, it is denied that Mumma never objected to said services - See response above at ¶ 12. Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations of ¶ 16 of the Amended Complaint, and therefore said allegations are denied. 17. Admitted in part; denied in part. It is admitted that Barton provided services in the GRAT case; but see response above at ¶ 12 and see counterclaim below. It is specifically denied that Gault asked Barton to perform any services insofar as Gault was not in need of having services performed for him. 18. See response above at ¶ 17. 19. See response above at ¶ 17. 20. No response required inasmuch as said averment contains impertinent matter that is not germane to the alleged amount in issue. 21. See response above at 120. 22. Denied. See response above at ¶ 12 and see counterclaim below. 23. See response above at 112. 24. See response above at ¶ 12. By way of further reply, no "Exhibit 1" was attached to the Amended Complaint. 25. See response above at ¶ 12. 25. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations of the second "¶ 25" of the Amended Complaint, and therefore said allegations are denied. 26. Denied. See responses above at ¶ 12 and ¶ 14. 27. Denied. See response above at 112 and see counterclaim below. 28. Denied. See response above at ¶ 12 and see counterclaim below. 29. No response required inasmuch as said averment pertains to written documents which speak for themselves. By way of further reply, said averments are denied to the extent same constitute legal conclusions and therefore require no reply in a responsive pleading. 30. No response required inasmuch as said averment constitutes a legal conclusion and therefore requires no reply in a responsive pleading. 4 WHEREFORE, Defendants respectfully request that this Court dismiss Plaintiff's Amended Complaint with prejudice, enter judgment in favor of Defendants, and grant such other and further relief as the Court deems just and equitable. NEW MATTER 31. All preceding paragraphs are incorporated as though fully set forth at length herein. 32. Although ¶24 of the Amended Complaint references "See Exhibit l," no such exhibit or other writing was attached thereto; accordingly, the Amended Complaint does not have attached thereto any copies of any contracts, emails, letters, or any other writings. 33. Plaintiff was previously a licensed attorney in the Commonwealth of Pennsylvania - ID No. 15616; however, he was disbarred on consent on February 10, 1998 (117 DB 97). 34. As a disbarred attorney, Plaintiff falls into the "special circumstance of formerly admitted attorneys engaging in law-related activities" set forth in Pa. R.D.E. 217; therefore, he cannot claim to be a "paraprofessional" and/or "paralegal." 35. Plaintiff cannot recover on any alleged oral contract because it is unenforceable as a matter of law under the Pennsylvania Rules of Disciplinary Enforcement. 36. The Pennsylvania Rules of Disciplinary Enforcement (Rule 2170)(5)) require the filing of a "notice of engagement" and another "notice" of the termination of said engagement; however, the Amended Complaint does not allege that these requisite "notices" were filed with the Disciplinary Board. 37. Plaintiff's alleged oral contract is unenforceable as a matter of law under the Judicial Code insofar as it prohibits the unauthorized practice of law (42 Pa.C.S.A. § 2524), and Plaintiff, who is a disbarred attorney and therefore a non-layperson, may only engage in work-related legal 5 activities as a "formerly admitted attorney" under the Pennsylvania Rules of Disciplinary Enforcement (Pa.R.D.E. 2170)). 38. Since the practice of law by an unauthorized person is against public policy, the contract for the payment of services rendered by such person is unenforceable. 39. Plaintiff's alleged oral contract cannot be enforced because (i) it seeks recovery for "paraprofessional" services which he cannot assert due to his "special circumstance" as a "formerly admitted attorney" under Rule 217, (ii) the services at issue were not performed in strict compliance with the Pennsylvania Rules of Disciplinary Enforcement, (iii) the services at issue constitute the unauthorized practice of law since same were rendered by a formerly admitted attorney who did comply strictly with the Pennsylvania Rules of Disciplinary Enforcement, and (iv) it seeks a judgment which would be in contravention of public policy, a state statute, and state rules. Thus, the Amended Complaint sets forth a cause of action which is not legally cognizable. 40. Plaintiff lacks the legal capacity to maintain the action and is otherwise unauthorized to pursue the relief sought because, as a formerly admitted attorney, he has not strictly complied with the Pennsylvania Rules of Disciplinary Enforcement. 41. Because the Plaintiff's Amended Complaint demands payment for paraprofessional services, the Plaintiff has the burden of proof with respect to his compliance with the standards imposed by the Pennsylvania Rules of Disciplinary Enforcement. 42. As depicted by the averments in Plaintiff's Amended Complaint, Plaintiff was previously employed by Attorney Eric Wiener where he was privy to confidential information that arose in the context of the work which he performed for Defendants. 43. Plaintiff is aware that Attorney Wiener previously filed suit against Defendant Mumma and Plaintiff is aware that Plaintiff's previous work performed while employed by Attorney Wiener was the subject of Attorney Wiener's suit against Defendant Mumma; said litigation instituted by Attorney Wiener encompassed time periods, files, pleadings, legal representation, and related matters attendant to Attorney Wiener and his law practice which are not relevant to the alleged amount at issue ($12,365) sought by Plaintiff in this action. 44. The Amended Complaint avers that Defendants have been "directly benefitted" by Plaintiff's "paraprofessional" services; however, Plaintiff's services performed in several matters were not only inadequate and incompetent, but, as a result thereof, caused Defendants economic harm and/or setbacks or losses in several matters of litigation. 45. Defendant is not obligated to make payment to Plaintiff for any services that failed to meet the standard of conduct expected of his profession or his paraprofession at large. 46. The Amended Complaint, while purportedly seeking recovery of the alleged amount at issue ($12,365), contains averments respecting Plaintiff's "paraprofessional" services related to "the GRAT case" in Dauphin County, only to further include averments respecting that Court's Order for per diem sanctions and an approximate total judgment now in effect. Therefore, the Amended Complaint contains impertinent matter that is not germane to the alleged amount in issue. 47. Although seeking payment of fees for "paraprofessional" services performed by Plaintiff, the Amended Complaint does not aver the existence of any recognized "paraprofessisonal" relationship wherein Defendants acknowledged, recognized, or accepted Plaintiff as a "paraprofessional." 48. Although seeking payment of fees for "paraprofessional" services performed by Plaintiff, the Amended Complaint does not aver the existence of any Fee Agreement entered into before or within a reasonable time after the commencement of any "professional" or "paraprofessisonal" relationship, nor does the Amended Complaint have attached thereto a copy of any Fee Agreement entered into before or within a reasonable time. 49. The Amended Complaint seeks payment based upon a theory of recovery that is inapplicable to the "paraprofessional" relationship. 50. To the extent that the Amended Complaint seeks payment based upon any contractual theory of recovery for "paraprofessional" services which were generally "in the nature of paralegal services," and were done so as "an independent contractor," said theory of recovery is inapplicable given that Plaintiff cannot recover for said professional services inasmuch as he was previously disbarred on consent, and said averments may further implicate the Plaintiff as seeking payment for the unauthorized practice of law which is governed by the Rules of Professional Conduct. 51. To the extent that the Amended Complaint seeks payment under the premise that all of the Plaintiff's "paraprofessional" services were "expressly and tacitly" approved by other legal counsel for Defendants, Plaintiff fails to plead the requisite authority or permission, or other binding relationship, or other facts establishing same. 52. To the extent that the Amended Complaint seeks payment under the premise that all of the Plaintiffs "paraprofessional" services were under the "supervision and direction" of other legal counsel for Defendants, Plaintiff fails to plead the requisite authority or permission, or other binding relationship, or other facts establishing same. 53. Plaintiff's claims are barred by the affirmative defense of estoppel. 54. Plaintiff's claims are barred by the doctrine of unclean hands. 8 55. Plaintiff's claims are barred by the doctrine of fraud. 56. Plaintiff's claims are barred by the doctrine of waiver. 57. Plaintiff's claims are barred by the statute of frauds. 58. The Amended Complaint fails to set forth an appropriate theory of law upon which its claims for relief must be granted. WHEREFORE, Defendants respectfully request that this Court dismiss Plaintiff's Amended Complaint with prejudice, enter judgment in favor of Defendants, and grant such other and further relief as the Court deems just and equitable. COUNTERCLAIM 59. All preceding paragraphs are incorporated as though fully set forth at length herein. 60. Counterclaim Plaintiff is Robert M. Mumma, II, a pro se Defendant in the above- captioned action. 61. Counterclaim Defendant is Robert W. Barton, the pro se Plaintiff in the above-captioned action. 62. Counterclaim Defendant had a duty and/or obligation to Counterclaim Plaintiff, whether expressly or by implication, to provide paraprofessional services consistent with those expected of his paraprofession at large. 63. Counterclaim Defendant failed to exercise the ordinary skill and knowledge expected of those in his paraprofession, and otherwise failed to conform to the requisite standard of conduct. 64. Counterclaim Defendant breached his duty to the Counterclaim Plaintiff by failing to provide said expected and consistent paraprofessional services in several matters, including, but not limited to, services relating to the "Boswell" case in Dauphin County at 2004-CV-1779, the 9 "Double M" case in Dauphin County at 5381 Equity 1996, and the "High Spec" case in the U.S. Middle District at 09-CV-1447. 65. Counterclaim Defendant's services performed in these and other matters were not only inadequate and incompetent, but, as a result thereof, caused Counterclaim Plaintiff to sustain economic harm and/or setbacks or losses in said litigation. 66. As a result of Counterclaim Defendant's said breach of his duty and his related actions and omissions, Counterclaim Plaintiff sustained economic harm, other damages and other legal injury. 67. The failure of Counterclaim Defendant to provide said expected and consistent paraprofessional services and other acts and omissions constituting negligence have served as the proximate cause of said actual damage to the interests of Counterclaim Plaintiff. WHEREFORE, Counterclaim Plaintiff respectfully requests that this Court enter judgment in his favor and against Counterclaim Defendant, and grant such other and further relief as the Court deems just and equitable. Dated: June 15, 2011 Respectfully submitted, Robert. Mumma, II -pro se ` -7 840 Market Street - Suite 33333 Lemoyne, Pennsylvania 17043 (717) 612 -9720 PRO SE - Individually and as Trustee 10 CERTIFICATE OF SERVICE I hereby certify that I caused a true and correct copy of the foregoing Answer, New Matter, and Counterclaim to Plaintiff's Amended Complaint to be served as follows: By U.S. Mail, first class, postage prepaid: Robert W. Barton 2123 Chestnut Street Harrisburg, PA 17104 Pro se Plaintiff Dated: June 15, 2011 c? kober4 M a, II - pro se I 840 Market Street - Suite 33333 Lemoyne, Pennsylvania 17043 (717) 612 -9720 Defendants PRO SE - Individually and as Trustee 11 CAJAL PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) ti--' CAPTION OF CASE ' (entire caption must be stated in full) Robert W. Barton, Plaintiff N C-t VS. :m Robert M. Mumma, R, and l Robert M. Mumma, H, Trustee of the c-n Robert M. Mumma, 11, Grantor Retained 2011 2142 Civil Annuity Trust, Defendants No Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Plaintiffs Motion for Summary Judgment 2. Identify all counsel who will argue cases: (a) for plaintiffs: Robert W. Barton, pro se, 2123 Chestnut Street, Harrisburg, PA 17104 (Name and Address) (b) for defendants: Robert M. Mumma, H, pro se, 840 Market Street, Suite 158, Lemoyne, PA 17043 (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been li sted for argument. 4. Arqument Court Date: July 15,2011 Robert W. Barton Print your name Plaintiff Attorney for Date: INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument Is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. i ROBERT W. BARTON, Plaintiff V. ROBERT M. MUMMA, II, Defendant and ROBERT M. MUMMA, II, Trustee of the Robert M. Mumma, II Grantor Retained Annuity Trust, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2011 - 2142 CIVIL c CIVIL ACTION - LAW x rn- © r-x - ,. C `.'? , c ma -< -,c DEFENDANTS' MOTION TO QUASH THE PRAECIPE FOR LISTING CASE FOR ARGUMENT FOR JULY 15, 2001, OR, IN THE ALTERNATIVE, MOTION TO CONTINUE THE MATTER UNTIL A LATER ARGUMENT COURT DATE Defendant Robert M. Mumma, II, pro se, respectfully move this Court for an Order to quash the Praecipe for Listing Case for Argument for July 15, 2011 as premature, or, alternatively, for an Order to continue this matter until a later argument court date. In support thereof, Defendant aver as follows: 1. 2. 3 Plaintiff pro se filed an Amended Complaint on or about March 31, 2011. Defendants pro se filed Preliminary Objections to the Amended Complaint on April 20, 2011. Said Preliminary Objections were overruled by the Court (Judge Guido) in an Order dated June 9, 2011; said Order further provided the Defendants with a twenty day period to file an answer. 1 4. Pursuant to the said Court Order dated June 9, 2011, Defendants pro se filed an Answer and New Matter with Counterclaim to the Amended Complaint on June 15, 2011. Said responsive pleading was endorsed with a Notice to Plead instructing Plaintiff to file a written response to the New Matter and Counterclaim within twenty (20) days or a judgment may be entered against him. Also on June 15, 2011, Plaintiff pro se filed a Motion for Summary Judgment citing Pa.R.C.P. 1035.2 and 1035.3. Although poorly drafted and difficult to follow, it is believed that said Motion for Summary Judgment ultimately seeks relief in Plaintiff's favor regarding the Counterclaim filed in this action, with said requested relief stemming from a confidential settlement agreement executed in a prior action involving Defendants and Attorney Eric Weiner. 6. In the prior pleadings and filings submitted to the Court in this matter, Plaintiff admitted - as a binding judicial admission - that said prior litigation involving Attorney Eric Weiner encompassed different time periods, files, pleadings, legal representation, and related matters attendant to Attorney Weiner's law practice which are not relevant to the alleged amount at issue sought by Plaintiff's Amended Complaint as filed in this action. See, Paragraph 8 of Plaintiff's Response filed on May 8, 2001. 7. In two prior Orders issued by this Court (per Judge Guido) concerning the Defendants Motions to Quash the Plaintiff's Notice to Produce a copy of said settlement agreement, it was determined that the prior settlement agreement was irrelevant to this action and said Motions to Quash were granted. See Orders of Court dated April 12, 2011 and June 7, 2011. Nonetheless, Plaintiff served yet another Notice to Produce a copy of said settlement agreement dated June 16, 2011. 2 9. Notwithstanding Plaintiff's prior binding judicial admission as set forth hereinabove in Paragraph 6, and notwithstanding this Court's prior Orders determining that the said settlement agreement was irrelevant to this action as set forth hereinabove in Paragraph 7, Defendants served Plaintiff with a copy of the settlement agreement under a cover letter dated June 21, 2011 (a copy of said cover letter is attached hereto as Exhibit A). 10. Given that Plaintiff had been provided a copy of the settlement agreement, Defendants cover letter dated June 21, 2011 further requested Plaintiff to withdraw the Motion for Summary Judgment. (See Exhibit A attached hereto). 11. On June 27, 2011, Plaintiff filed a Praecipe for Listing Case for Argument for July 15, 2011. 12. Pursuant to C.C.R.P. 1028(c)(5), argument court briefs would need to be filed on July 3, 2011 and on July 10, 2011. REASONS TO QUASH THE PRAECIPE FOR LISTING CASE FOR ARGUMENT FOR JULY 15, 2011, OR ALTERNATIVELY, FOR CONTINUING THIS MATTER UNTIL A LATER ARGUMENT COURT DATE. 13. Under Pa.R.C.P. 1035.2 (cited by Plaintiff in filing his Motion for Summary Judgment), a party may not move for summary judgment until "after the relevant pleadings are closed." In the case-at-bar, the pleadings have not closed: Plaintiff has not filed a written reply or other responsive pleading to the New Matter and Counterclaim which were filed on June 15, 2011, notwithstanding that same was endorsed with a Notice to Plead. 14. On July 6, 2011, if apt, Defendants intend to serve a written notice of intention to file a praecipe for entry of judgment by default for failure to plead pursuant to Pa.R.C.P. 237.1. 15. Under Pa.R.C.P. 1035.3 (also cited by Plaintiff in filing his Motion for Summary Judgment), the Defendants have a thirty day period within which to file a response to the Motion for Summary Judgment. See, Pa.R.C.P. 1035.3(a). In the case-at-bar, said thirty day period for Defendants to /S, respond to the Motion for Summary Judgment does not expire until JulyX 2011 16. Finally, given that Defendants have served the Plaintiff with a copy of the settlement agreement, an interim motion may be filed pursuant to Pa.R.C.P. 1035.3(e) whereby the Court could dispose of the issues raised in the Plaintiff's Motion for Summary Judgment without the necessity for oral argument. 17. Given the foregoing reasons, i.e., that the pleadings have not closed as required by Pa.R.C.P. 1035.2, (S, that Defendants have until July )( 2011 to file a written response to the Plaintiff s Motion for /Zynp Summary Judgment, and that an interim disposition is available under Pa.R.C.P. 1035.3(e), it is abundantly clear that it was premature for the Plaintiff to list his Motion for Summary Judgment for argument court on July 15, 2011. 18. Accordingly, this Court should quash the Praecipe for Listing Case for Argument for July 15, 2011; this Court should continue this matter for another argument court session at a later date, i.e., until after the close of the relevant pleadings and until after Defendants have had an opportunity to file a written response to the Motion for Summary Judgment. 19. For purposes of C.C.R.P. 208.3(a)(9), Plaintiff does not consent to this motion to quash in light of his filing on June 27, 2011 of the Praecipe For Listing Case For Argument for July 15, 2011. 20. Judge Guido previously entered the prior Court Orders in this matter. 4 WHEREFORE, for the foregoing reasons, Defendant respectfully requests that this Court enter an appropriate Order which quashs the Praecipe For Listing Case For Argument for July 15, 2011 and which otherwise continues this matter to a later argument court date, and which grants such other and further relief that the Court deems just. Dated: June;0, 2011 G w ko-be rt umina . I ' 840 Market Street - Suite 33333 Lemoyne, Pennsylvania 17043 (717) 612 - 9720 Defendant PRO SE 5 EXHIBIT A OT W. , 840 Yarkst SE. 8afte 33333 Lune, PA 17043 717-448-111 0@?C cam June 21, 2011 Robert W. Batton 2123 Chestnut Shvet Harrisbeu PA 17104 RE: Robert Berton v. Robert M. Mumma, H No. 2011-2142 Cavil Tesm Dear Robert Enobsed please find a pbOlDoopgr of the settlamIeat 0400ement dated Marrh 20, 2oo9 whuh is the subject of your Pkdx a to Produce dated June 16, 2011. In oo thereat dated jh= 14.2011. Thank you for your athm ion to these math s. 90bert M. Mumma, RMMM ouu Enc. CERTMCATE OF SERVICE I hereby certify that I caused a true and correct copy of the foregoing Motion to Quash or in the alternative Motion to Continue to be served as follows: By U.S. Mail, first class, postage prepaid: Robert W. Barton 2123 Chestnut Street Harrisburg, PA 17104 Pro se Plaintiff . Dated: 9 A Robert M. umma, II 840 Market Street - Suite 33333 Lemoyne, Pennsylvania 17043 (717) 612 - 9720 Defendant PRO SE 6 ROBERT W. BARTON, IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY, V. PENNSYLVANIA ROBERT M. MUMMA, II, NO. 2011 - 2142 CIVIL Defendant and CIVIL ACTION - LAW ROBERT M. MUMMA, II, Trustee of the Robert M. Mumma, II Grantor Retained Annuity Trust, ; Defendant ORDER AND NOW, this day of , 2011, upon consideration of the DEFENDANTS MOTION TO QUASH THE PRAECIPE FOR LISTING CASE FOR ARGUMENT FOR JULY 15, 2001, OR, IN THE ALTERNATIVE, MOTION TO CONTINUE THE MATTER UNTIL A LATER ARGUMENT COURT DATE, and any response thereto, it is hereby ORDERED that the Defendants Motion is GRANTED. The Prothonotary shall disregard the Praecipe for Listing Case for Argument for July 15, 2011 as filed by the Plaintiff on June 27, 2011, and the Court Administrator shall not place this matter on the Argument Court List for July 15, 2011. BY THE COURT: J. Robert W. Barton -pro se 2123 Chestnut Street Harrisburg, PA 17104 Plaintiff Pro Se Robert M. Mumma, II -pro se 840 Market Street - Suite 33333 Lemoyne, PA 17043 Defendant Pro Se 7 ROBERT W. BARTON, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. No. 2011 - 2142 CIVIL o ROBERT M. MUMMA, II c ° - Defendant, and s c.. rn -' CIVIL ACTION - LAW S O (Judge Guido) c:7 <d -v o-n ROBERT M. MUMMA, II, Trustee : c , ?c z n of The Robert M. Mumma, II, 17 Grantor Retained Annuity Trust, 7 o Defendant PLAINTIFF'S ANSWER TO DEFENDANT'S MOTION TO QUASH PRAECIPE LISTING CASE FOR ARGUMENT OR IN THE ALTERNATIVE PLAINTIFF'S ANSWER TO DEFENDANT'S MOTION TO CONTINUE MATTER Plaintiff Barton respectfully submits the following as his Answer to Defendant's Motion to quash and Motion to Continue filed herein on June 30, 2011. 1. - 4. Plaintiff admits the procedural history averred in ¶¶ 1 through 4. By way of further Answer, Defendant's prior pleading were procedurally deficient because they did not contain a Verification as required by Rule 1029 of the Pennsylvania Rules of Civil Procedure. 5. Plaintiff admits that he filed a Motion for Summary Judgment, but Plaintiff denies that the Motion for Summary Judgment was filed on June 15, 2011. By its very terms, which are a matter of record in this case, the Motion was mailed to the Defendant on June 14, 2011, and pleadings are filed when mailed. See Rule 440(b), "Service by mail of legal papers other than original process is complete upon mailing." Plaintiff denies that his Motion for Summary Judgment was "poorly drafted and difficult to follow" because the Defendant was obviously able to understand the Motion. Finally, Plaintiff denies that the Counterclaim sought production of a "confidential settlement agreement" because this Court, by its Order entered on April 12, 2011, specifically rejected Defendant's argument that the settlement agreement was confidential. The Court quashed Plaintiff's Notice to Produce on the basis of relevance and for no other reason, and Defendant's tendency to misstate the Court's reasoning is evidence of his bad faith. 6. Plaintiff has admitted and does admit that he became aware of certain confidential information as a result of his affiliation with Attorney Eric Wiener but Plaintiff denies that he learned of the existence of the settlement agreement through that aNNation. On the contrary, the existence of the settlement agreement is a matter of public record in the dockets of Cumberland County at No. 08-5096. 7. - 9. Plaintiff admits that the Court denied his Notices to Produce on two prior occasions on the basis of relevance and Plaintiff further avers that he filed a third such Notice on June 21, 2001, because the Defendant's Counterclaims filed on June 15, 2011, made the agreement relevant. The relevance of the agreement was not challenged by Defendant and Defendant voluntarily produced the agreement after Defendant's receipt of the third Notice. 10. Plaintiff admits that Defendant requested Plaintiff to withdraw his Motion for Summary and Plaintiff further admits that he did not withdraw the Motion. Plaintiff is aware of Defendant's proclivity to do anything possible to avoid a resolution of the abundance of claims against him, some of which have been pending for over a decade, and Plaintiff does not intend to be drawn into that trap. 2 11. Plaintiff admits that he listed his Motion for Summary for Argument Court on June 27, 2011. 12. Per Local Rule 1028(c), Plaintiff's Brief is due to be filed on July 5, 2011, and Defendant's Brief is due to be filed on July 10, 2011. That is the schedule adopted by the Court and Defendant has shown no reason for changing that schedule merely because it might be more convenient for him. 13. Plaintiff is aware of the Rule that a Motion for Summary Judgment should not be filed before the pleadings are closed and Plaintiff respectfully submits that this case is appropriate for application of the concomitant rule that summary judgment may be entered prior to the completion of discovery "where additional discovery would not aid in the establishment of any material fact. " Manzetti v. Mercy Hospital of Pittsburgh, 776 A.2d 938, 950-1 (Pa. 2001). This is such a case. 14. Plaintiff fully intends to file appropriate responsive pleadings to Plaintiffs New Matter and Counterclaim which will not impede a timely resolution of this case. 15. For the reasons set forth in¶ 5, Defendant's Answer to the Motion for Summary Judgment filed by July 13. 2011. 16. Plaintiff agrees that the Court could dispose of the issues raised by the parties without undue delay. 17. --18. Plaintiff denies that his Motion for Summary Judgment was filed prematurely. On the contrary, the Court should adhere to its published schedule and the Court should not allow that schedule to be altered at the whim of the Defendant Mumma. The Motions should be denied. WHEREFORE, Plaintiff Robert W. Barton respectfully submits that the Court should deny the Defendant's Motion. Dated: 'Iez'2401 VERIFICATION Respectfully submitted, W Robert W. Barton, pro se 2123 Chestnut Street Harrisburg, Pennsylvania 17104 (717) 236-1123 robertwbarton@gmaii.com Pursuant to the penalties of 18 Pa.C.S. § 4904, 1 hereby verify that the statements in the foregoing Answers are true and correct. ? A?)I, ( r ( I Robert W. Barton 4 CERTIFICATE OF SERVICE I hereby certify that I served the foregoing Answers by placing a true and correct copy thereof in the United States mail, first class postage prepaid, addressed as follows: Robert M. Mumma, II 840 Market Street, Suite 158 Lemoyne, PA 17043 \?? ( I Robert W. Barton 5 ROBERT W. BARTON, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. ROBERT M. MUMMA, II, NO. 2011-2142 CIVIL TERM Defendant V. ROBERT M. MUMMA, II, CIVIL ACTION -LAW Trustee of the Robert M. Mumma, II Grantor Retained Annuity Trust ORDER OF COURT c? c -off air r? ra ZCt N O C_ r e cn -v 3 N N co --z rn r- -?v =v CIA -.+c-) a-n AND NOW, this 5T" day of JULY, 2011, after review of Defendant's Motion to Quash the Praecipe for Listing Case for Argument and Plaintiff's response thereto, the Motion is GRANTED. The Defendant's response to the Motion for Summary Judgment is not due until July 15, 2011. Therefore, the praecipe listing the matter for argument was pre-mature. The case is STRICKEN from the argument court list without prejudice to relist it when the matter is ripe for disposition. Edward E. Guido, J. Robert W. Barton 2123 Chestnut Street Harrisburg, Pa. 17104 ? Robert M. Mumma, II 840 Market Street Suite 33333 Lemoyne, Pa. 17043 'Id je5,, MW eop D? Ca ten! /9 ?IO?i ?1?S??Q? -in IT IL 'l -OF FICr" I Hi: PROTHONOTAR`, ROBERT W. BARTON, Plaintiff V. ROBERT M. MUMMA, II Defendant, and 2011 JUL -7 AM 11: 15 rUMBERLAND COUNTY PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : No. 2011 - 2142 CIVIL CIVIL ACTION - LAW (Judge Guido) ROBERT M. MUMMA, II, Trustee : of The Robert M. Mumma, II, Grantor Retained Annuity Trust, Defendant PLAINTIFF'S REPLY TO NEW MATTER AND ANSWER TO COUNTERCLAIM AND NEW MATTER REPLY TO NEW MATTER Plaintiff Robert W. Barton respectfully files this Reply to the New Matter filed herein by Defendant Mumma. 31. Plaintiff incorporates herein by reference all averments in I¶ 1 - 30 of Plaintiff's Complaint. With respect to ¶¶ 14 and 17, Plaintiff Barton is in possession of documentary evidence that establishes that both Gault and Defendant Mumma collaborated with Plaintiff Barton on the content of Briefs and pleadings initially prepared by Barton. See Exhibit 1, attached hereto and incorporated herein. 32.1- 33. Plaintiff admits the averments in ¶¶ 32- 33. 1 34. - 37. Plaintiff denies the averments in 1M 34 - 38 because the Pa. Rules of Disciplinary Enforcement are not relevant to and do not apply to cases such as this. Furthermore, the Defendant Mumma has released Plaintiff from any liability for the claim cited in this paragraph. Furthermore, Plaintiff has a statutory right to act as his own counsel. See 42 Pa. C.S. 2501. 38. Plaintiff denies the legal conclusions in 138. Indeed, Defendant Mumma, by his conduct, is estopped from denying his obligations to compensate Plaintiff Barton. 39 - 41. Plaintiff denies the averments in 139 - 41 because the Pa. Rules of Disciplinary Enforcement are not relevant to and do not apply to cases such as this. Furthermore, the Defendant Mumma has released Plaintiff from any liability for the claim cited in this paragraph. Defendant Mumma, by his conduct, is estopped from denying his obligations to compensate Plaintiff Barton. 42. - 43. Plaintiff admits the averments in 142 - 43. 44. - 45 Plaintiff denies the averments in 44. - 45 because the Defendant Mumma has released Plaintiff from any liability for the claim cited in this paragraph. Defendant Mumma, by his conduct, is estopped from denying his obligations to compensate Plaintiff Barton. Furthermore, in all the cases cited by Mumma in ¶¶ 59 through 67, the Boswell case, the Double M, case, and the High Spec case, every pleading filed in every one of those cases was signed by a licensed attorney other than Barton, usually Gault. Hence, Rule 1023.1 of the Pennsylvania Rules of Civil Procedure applies to absolve Barton from any liability. Mumma's averments to the contrary are frivolous. 46. - 47. Plaintiff denies the legal conclusions in IM 46 - 47. 2 48. Plaintiff denies the legal conclusions in 147 because the Fee Agreement between Barton and Mumma was verbal. 49. Plaintiff denies the legal conclusions in 149. 50. Plaintiff denies the averments in 150 because the Pa. Rules of Disciplinary Enforcement and the Rules of Professional Conduct are not relevant to and do not apply to cases such as this. Furthermore, the Defendant Mumma has released Plaintiff from any liability for the claim cited in this paragraph. Defendant Mumma, by his conduct, is estopped from denying his obligations to compensate Plaintiff Barton. 51. - 58. Plaintiff denies the legal conclusions in ¶¶ 51 - 58. Furthermore, the Defendant Mumma has released Plaintiff from any liability for the claims cited in this paragraph. Further, Defendant Mumma has failed to properly plead the elements of the claims in ¶¶ 51 - 58. WHEREFORE, Plaintiff Robert W. Barton respectfully demands that judgment should be entered in his favor and against Defendant Robert M. Mumma, II. ANSWER TO COUNTERCLAIM Plaintiff Robert W. Barton respectfully files this Answer to the Counterclaim filed herein by Defendant Mumma. 59. Plaintiff incorporates herein by reference all averments in IM 1 - 59. 60. - 61. Plaintiff and Counterclaim Defendant Barton admits the averments in ¶¶ 60 and 61. 62. Plaintiff and Counterclaim Defendant Barton denies the legal conclusions in ¶ 62. Furthermore, in all the cases cited in ¶¶ 59 through 67, the Boswell case, the Double M, case, and the High Spec case, every pleading filed in every one of those 3 cases was signed by a licensed attorney other than Barton, usually Gault. Hence, Rule 1023.1 of the Pennsylvania Rules of Civil Procedure applies to absolve Barton from any liability. Mumma's averments to the contrary are frivolous. 63. - 67. Plaintiff and Counterclaim Defendant Barton denies the averments in IM 63. - 67. Plaintiff and Counterclaim Defendant Barton respectfully avers that the Counterclaim Plaintiff Mumma has failed to state a state a claim against Counterclaim Defendant Barton. By way for further Answer, the attached Memorandum from Attorney Gault relates to Barton's services in the "Double M" case and directly refutes Mumma's claim that Barton's services were unsatisfactory. Indeed, the Briefs referenced in ¶¶ 64 were practically verbatim copies of drafts prepared by Barton. Furthermore, Plaintiff and Counterclaim Defendant Barton respectfully avers that the Counterclaim in ¶¶ 63. - 67 is barred by the Release attached hereto as Exhibit 1. Furthermore, in all the cases cited in I¶ 59 through 67, the Boswell case, the Double M, case, and the High Spec case, every pleading filed in every one of those cases was signed by a licensed attorney other than Barton, usually Gault. Hence, Rule 1023.1 of the Pennsylvania Rules of Civil Procedure applies to absolve Barton from any liability. Mumma's averments to the contrary are frivolous. WHEREFORE, Plaintiff Robert W. Barton respectfully demands that judgment should be entered in his favor and against Defendant Robert M. Mumma, II. 4 NEW MATTER Plaintiff and Counterclaim Defendant Robert W. Barton respectfully files this New Matter as an Affirmative Defense to the Counterclaim filed herein by Defendant Mumma. 68. The averments in ¶¶ 63. - 67 are incorporated herein by reference. 69. The Counterclaim Plaintiff Mumma has released Plaintiff and Counterclaim Defendant Robert W. Barton from any and all liability to Counterclaim Plaintiff Mumma by the Release referenced in Barton's Motion for Summary Judgment filed herein. WHEREFORE, Plaintiff Robert W. Barton respectfully demands that judgment should be entered in his favor and against Defendant Robert M. Mumma, II. Dated: spectfully su , -7 /OVI I ( ?, Robert W. Barton, pro se 2123 Chestnut Street Harrisburg, Pennsylvania 17104 (717) 236-1123 robertwbarton@gmail.com VERIFICATION Pursuant to the penalties of 18 Pa.C.S. § 4904, 1 hereby verify that the statements in the foregoing Reply, Answer, and New Matter are true and correct. - 4? ( (2j Robert W. Barton 5 CERTIFICATE OF SERVICE I hereby certify that I served the foregoing Reply, Answer, and New Matter by placing a true and correct copy thereof in the United States mail, first class postage prepaid, addressed as follows: Robert M. Mumma, II 840 Market Street, Suite 158 Lemoyne, PA 17043 Robert W. Barton 6 12/22/2010 Gmail - Double M Reply Robert Barton <robertwbarton@gmail.com> Double M Reply 3 messages Robert Barton <robe rtwba rton@gma 11. corn> Fri, Dec 17, 2010 at 10:40 AM To: Robert Mumma II <rmmtwo@mac.com>, Jim Gault <jggault@comcast.net> I have now attached a draft of a Reply Brief with a Cover and Table of Contents, which I think enhances its advocacy authority. Sections 1 and 2 of the Argument restates the previous points with some important additions, such as the cite to Stringer v. Kaytes, 286 Pa.Super. 551, 429 A.2d 660 (Pa.Super. 1981). Section 3 discusses the issue of subject matter jurisdiction which we first discussed at some detail in our Response to the Petition to Enforce Compliance which we filed on September 13, 2010. 1 think that jurisdiction argument is very important and provides another argument and method for voiding the judgment. Finally, Jim has approved the simple response to the issue of sanctions and I will be pleased to draft a more comprehensive discussion of that issue if you want me to do that. Call me anytime to discuss this. 2 attachments Reply re 236 12 13 10.docx -? 29K Reply Cover 12 17 10.docx -j 14K jggault@comcast.net <jggault@comcast.net> To: Robert Barton <robertwbarton@gmail.com> Fri, Dec 17, 2010 at 6:03 PM We reviewed it around 2 p.m. today - it appears to be in order. Bob only made minor changes. As previously advised, I will take it from here as far as filing, etc. thanks.... [Quoted text hidden] [Quoted text hidden] Robert Barton <robertwbarton@gmail.com> To: jggault@comcast.net Fri, Dec 17, 2010 at 6:16 PM I would appreciate seeing your changes but that's your decision. [Quoted text hidden] https://mail.google.com/mail/?ui=2&ik... 1/2 (,`A L PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) ROBERT W. BARTON, PLAINTIFF vs. ROBERT M. MUMMA, II, DEFENDANT, and j ROBERT M. MUMMA, IT, Trustee of the Robert M. C ... `' Mumma Grantor Retained Annuity Trust, 2011-2142 CIVIL DEFENDANT No. 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer t3> rQ CD complaint, etc.): G? Plaintiffs Motion for Summary Judgment ue cases: l who will ar n tif ll Id 2 ZCO tV Off, g y a cou se en . (a) for plaintiffs: Robert W. Barton, pro se, 2123 Chestnut St., Harrisburg, PA 17104 (Name and Address) (b) for defendants: Robert M. Mumma, II, pro se, 840 Market St., Ste. 158, Lemoyne, PA 17043 (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: August 26, 2011 Robert W. Barton, pro se Print your name Plaintiff Date: July 27, 2011 Attorney for INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. ROBERT W. BARTON, : IN THE COURT OF COMMON PLEAS OF --.. Plaintiff : CUMBERLAND COUNTY, C-, c N , PENNSYLVANIA No. 2011 - 2142 CIVIL ' ROBERT M. MUMMA, II w __. Defendant, and A© C)-y` CIVIL ACTION - LAW _ 5:c= _ -= (Judge Guido) ROBERT M. MUMMA, II, Trustee : of The Robert M. Mumma, II, Grantor Retained Annuity Trust, Defendant PLAINTIFF'S REPLY TO NEW MATTER IN DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT Plaintiff Barton filed and served a Motion for Summary Judgment on Defendant Mumma on June 14, 2011, and on July 14, 2011, Defendant Mumma filed a Response with "New Matter" to that Motion. From an abundance of caution, Plaintiff Barton respectfully submits the following as his Reply to Mumma's New Matter as set forth in Mumma' Response to Barton's Motion for Summary Judgment. 26. Plaintiff respectfully incorporates herein all averments in ¶¶ 1 through 25 of his Motion for Summary Judgment (herein the Motion). 27. Denied. For the reasons set forth herein as well as in his 1125 through 27 of his Amended Complaint and in other pleadings filed herein by Plaintiff, Plaintiff has pleaded his right to entry of summary judgment against Defendant Mumma in the amount of $12,365. More specifically, Plaintiffs Complaint avers that Defendant Mumma verbally promised to compensate Plaintiff at the rate of $90 per hour for 1 services rendered by Barton. The Complaint further avers that Plaintiff performed those services, and the Complaint further avers that Defendant Mumma reneged on his promises to pay Barton what he had agreed when he still owed Plaintiff the sum of $12,365. Mumma's averments in 127 are a perfect example of the frivolous nature of all Mumma's claims in this case because Barton could not have averred his claims against Mumma any clearer. 28. - 29. Plaintiff denies that the Court should resolve this matter by a trial before a fact finder because there is no genuine issue of material fact as to any elements of Defendant's defenses to Plaintiff's claims and Plaintiff is entitled to judgment against Defendant as a matter of law pursuant to Rules 1035.2 and 1032.3 of the Pennsylvania Rules of Civil Procedure. Furthermore, Defendant's reference to trial by a fact finder constitutes an admission by Defendant that Plaintiff performed the services that are at issue in this case. 30. - 31. Plaintiff is entitled to judgment against Defendant as a matter of law because the prior settlement between Defendant Mumma and Eric J. Wiener, Esquire, which is attached to this Response as Exhibit 1, released Plaintiff from any and all claims against him that have been asserted by Mumma as a matter of law. 32. As Plaintiff has pleaded in ¶M 34 - 50 of his Reply to New Matter filed herein, which is incorporated herein by reference thereto, the Defendant's pleadings regarding the Pennsylvania Rules of Disciplinary are irrelevant to this case and any citation to those Rules is improper and frivolous. 33. - 34. Plaintiff denies the legal conclusions in IM 33 - 34. Furthermore, the Defendant Mumma has released Plaintiff from any liability for the claims cited in this 2 Further, Defendant Mumma has failed to properly plead the elements of the claims in ¶¶ 51 - 58. 35. The averments in ¶ 35 of Plaintiffs Complaint pleads an entitlement to recovery pursuant to a theory of breach of contract. 36. The averments in 136 are denied as frivolous since the death of Eric J. Weiner is irrelevant to this case . WHEREFORE, Plaintiff Robert W. Barton respectfully demands that judgment should be entered in his favor and against Defendant Robert M. Mumma, II. Dated: Respectfully submitted, / Robert W. Barton, pro se 2123 Chestnut Street Harrisburg, Pennsylvania 17104 (717) 236-1123 robertwbarton@gmail.com VERIFICATION Pursuant to the penalties of 18 Pa.C.S. § 4904, 1 hereby verify that the statements in the foregoing Reply are true and correct. 1? Robert W. Barton CERTIFICATE OF SERVICE I hereby certify that I served the foregoing Reply by placing a true and correct copy thereof in the United States mail, first class postage prepaid, addressed as follows: Robert M. Mumma, II 840 Market Street, Suite 158 Lemoyne, PA 17043 -? ? f(- Robert W. Barton 4 FF,r" FR,, Nn. : MUTUAL RELEASE AND SETTLEMENT AGREEMENT KNOW ALL MEN BY THESE PRESENTS: Mar. 20 2009 06: 3 PM Pc THIS MUTUAL RELEASE AND SETTLEMENT AGREEMENT ("Release") is made and entered into by and between LAW OFFICES OF ERIC ]. WIENER LLC. (Plaintiff} and ROBERT M. MUMMA II (defendant). WHEREAS, plaintiff has instituted suit in The COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PA. DOCKETED TO NO. 08-5096 against defendant for certain monies alleged to be owed for LEGAL SERVICES; and DEFENDANT HAS ALLEGED CLAIMS OF LEGAL MALPRACTICE, BREACH OF CONTRACT, NEGLIGENCE, and BREACH OF FIDUCIARY DUTY. WHEREAS, plaintiff and defendant have agreed to amicably resolve and settle the claims (the "Litigation"), upon the terms and conditions set forth herein; NOW THEREFORE, plaintiff and defendant, for and in consideration of mutual withdrawal of all claims with prejudice, do hereby remise, release and forever discharge each other and by these presents, do for their successors, administrators, assigns, heirs, executors, insurers and reinsurers, remise, reuse and forever discharge each other, their respective employees, subsidiaries, affiliates, partners, predecessors and successors in interest and assigns, insurers and reinsurers and any and all other persons, firms or corporations with whom any of the former have been, are now, or may hereafter be affiliated, together with any and all other persons, firms or corporations, of and from any and all past, present or future claims, demands, obligations, actions, causes of action, rights, damages, costs, expenses and compensation of any nature whatsoever, whether based on a tort, contract or other theory of recovery, and whether for compensatory or punitive damages, which the parties now have, or which may hereafter accrue or otherwise be acquired, on account of, or in any way growing out of, or which are the subject of the Litigation (and all related pleadings) or in any way relate to the legal services provided by PLAINTIFF AND OR ERIC J. WIENER INDIVIDUALLY including, without limitation, any and all known or unknown, foreseen or unforeseen, matured or unmatured claims and the consequences thereof, which have resulted or may result From the. alleged negligent or intentional acts or omissions of either party. This Mutual Release on the part of the parties hereto shall be a fully binding and complete settlement between plaintiff and defendant and all parties represented by or claiming through plaintiff and defendant, save only the executory provisions of this Release, Counsel for plaintiff shall file an executed Stipulation of Dismissal with Prejudice and/or an Carder to Settle, Discontinue and End with Prejudice the Litigation described hereinabove. r :t .. . f ?S;R FF.nM . FOX Hn. . Mar. 20 2M- nC,: _?FM PTA This Mutual Release and Settlement Agreement contains the entire agreement between the parties hereto with regard to the matter set forth In it and shall be binding upon and Inure to the benefit of the executors, administrators, personal representatives, heirs, successors and assigns of each. There are no other understandings or agreements, verbal or otherwise, in relation thereto, between the parties hereto. The parties to this Release agree that the terms and conditions of this Release, as well as the facts of the Settlement, are deemed to be confidential and will be held confidential by the parties hereto and their counsel. The parties hereto enter into this Mutual Release and Settlement Agreement in the Commonwealth of Pennsylvania and sold document shall be construed and Interpreted in accordance with its laws. This Mutual Release and Settlement Agreement may be executed by the parties In any number of counterparts, each of which with an original signature of a party or parties, and shall serve as a Release of that party's or parties' rights. The parties hereto agree that each shall bear their own attorneys' fees and costs. AND WITNESS WHEREOF, Plaintiffs and Defendants, each Intending to be legally bound by the term of th Mutual Release and Settlement Agreement, hereunto set their hand and seal thi??j Zo , --ccA (date). CAUTION: READ BEFORE SIGNING, THIS IS A RELEASE. LAW 9 FICES OF ERIC ]. WIENER LLC. BY ERIC). WIENER /7 14-36ERT M. MUMMA, II 40k II ' `- ROBERT W. BARTON, Plaintiff V. ROBERT M. MUMMA, II, Defendant V. ROBERT M. MUMMA, II, Trustee of the Robert M. Mumma, II Grantor Retained Annuity Trust IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ON DEFENDANT'S COUNTERCLAIM BEFORE GUIDO, MASLAND, JJ. ORDER OF COURT AND NOW, this 91H day of SEPTEMBER, 2011, upon consideration of Plaintiff's Motion for Summary Judgment, as well as the briefs and arguments of the parties' in support of their respective positions, the motion is GRANTED in part. It is granted as to any claims arising from the Plaintiff's work for Attorney Eric J. Weiner, or Eric J. Weiner LLC in connection with their IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2011-2142 CIVIL TERM ems' S .,' r-"?cz' - cs? ?--? r rj - r-7 Wr c ucz; r. n c-) CIVIL ACTION - LAW -v =-Z ZI: ` co representation of Defendant. In all other respects, it is DENIED. ? Robert W. Barton 2123 Chestnut Street Harrisburg, Pa. 17104 Robert M. Mumma, II 840 Market Street, Suite 33333 Lemoyne, Pa. 17043 0? 9'?SIOIGB By u , Edward E. Guido, J. ROBERT W. BARTON, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2011-2142 CIVIL TERM ROBERT M. MUMMA, II, TRUSTEE OF THE ROBERT M. MUMMA, II, GRANTOR RETAINED ANNUITY TRUST, Defendant CIVIL ACTION - LAW IN RE: PRETRIAL CONFERENCE A pretrial conference was held on Thursday, December 22, 2011, before the Honorable Edward E. Guido, Judge. Robert W. Barton, Plaintiff, appeared pro se. No one appeared on behalf of Defendant. Defendant's counsel filed a late request for a continuance. We are scheduling the trial for Friday, March 2, 2012, at 9:30 a.m. So long as the counterclaim is pending, the request to refer to arbitration cannot be granted. We will conduct another pretrial conference on Thursday, February 9, 2012, at 2:00 p.m. Defendant is directed to file a pretrial memorandum in accordance with the local rules of court. Plaintiff's pretrial memorandum filed for today's pretrial conference may be amended if Plaintiff wishes, but need not be. V Robert W. Barton Plaintiff, Pro se V John M. Kerr, Esquire For the Defendant By the Cou Edward E. Guido, J. Court Administrator srs Cpl MC41 leof 1lq jia t, t5 ,PaGG cz zr a rnr= c C -a cz ROBERT W. BARTON, Plaintiff V. ROBERT M. MUMMA, 11 Defendant, and IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 2011 - 2142 CIVIL CIVIL ACTION - LAW (Judge Guido) ROBERT M. MUMMA, II, Trustee : of The Robert M. Mumma, 11, Grantor Retained Annuity Trust, Defendant MOTION FOR SANCTIONS BY PLAINTIFF AND COUNTER-DEFENDANT ROBERT W. BARTON -a ZC uy r Pursuant to 42 Pa.C.S. § 2503, Plaintiff and Counter-Defendant Robert W. rll? N c? ct,.) -a Barton respectfully moves the Court to enter an Order imposing sanctions to be taxed as costs against Defendant Robert M. Mumma, 11, or his attorney, John M. Kerr, Esquire, or both of them, for the following reasons. 1. On November 9, 2011, Plaintiff Barton filed a Praecipe listing this case for trial without a jury. 2. In its Order dated November 22, 2011, the Court, per the Honorable Edward E. Guido, scheduled a Pre-Trial Conference for December 22, 2011, at 3:00 p.m. 3. That Order also stated that a Pre-Trial Memorandum should be filed by the parties at least five days prior to the Pre-Trial Conference, or by December 19, 2011. 1 4. On December 16, 2011, Barton timely filed with the Court a Pre-Trial Memorandum and he served that Memorandum on that date by U.S. mail on Attomey Kerr as counsel for Plaintiff Mumma. 5. On December 20, 2011, after Kerr had been served with the Court's Order scheduling a Pre-Trial Conference for December 22, 2011, and after Kerr had been served with Barton's Pre-Trial Memorandum, Kerr filed with the Court a document entitled Motion for a Continuance, in which Kerr requested a continuance of the Pre- Trial Conference. 6. The Court did not grant Kerr's Motion for Continuance, and on December 22, 2011, the scheduled Pre-Trial Conference was held before Judge Guido in Ken's absence and in Barton's presence. 7. The Court discussed the results of the December 22, 2011, Pre-Trial Conference in its Memorandum issued on January 4, 2012, saying, "No one appeared on behalf of Defendant.... [and] Defendant's counsel filed a late request for a continuance...." 8. In sum, the Court specifically determined that Ken- did not file a timely request for a Continuance of the Pre-Trial Conference, Kerr did not file a Pre-Memorandum, and Kerr did not attend the Pre-Trial Conference. 9. The January 4, 2012, Memorandum by the Court also scheduled another Pre- Trial Conference for February 9, 2012, and the Court said, "Defendant is directed to file a pretrial memorandum in accordance with local rules of court." 2 10. Local Rule 212-4, states, "Each party to a civil action shall submit a pretrial memorandum to the Court Administrator and serve a copy on all other parties, no later than Friday prior to the pretrial conference." 11. Pursuant to Local Rule 212-4 and the Order of Court, Kerr's Pre- Memorandum was due to be filed with the Court Administrator and served by Friday, February 3, 2011, as preparatory for the Pre-Trial Conference scheduled for February 9, 2012. 12. Kerr did not timely file a Pre-Memorandum and instead Ken- filed a document entitled Defendant's Pre-Trial Statement on February 7, 2012, which was delivered to Barton by U.S. Mail on February 8, 2012. 13. The Pre-Trial Statement filed and served by Kerr was incomplete and violated the Local Rules because it did not contain 'A list of exhibits with brief identification of each" as mandated by Local Rule 212-4(6). 14. Hence, as of February 8, 2012, Kerr had not complied with this Court's Order dated January 4, 2012. 15. In sum, John M. Kerr, in his capacity as legal counsel for Robert M. Mumma, 11, twice failed to timely file Pre-Memoranda that were due to be filed by Order by the Court, he failed to attend a Pre-Trial Conference that had been scheduled by the Court, and of course, it remains to be seen whether Kerr will attend the Pre-Trial Conference scheduled for February 9, 2012. 16. Kerr's conduct has been blatantly contumacious and in defiant disregard of this Court's authority. 17. Kerr's conduct has been dilatory, obdurate and vexatious as a matter of law and fact. 18. Kerr's attitude toward Orders and Rules of this Court, and Mumma's as well, are perfectly demonstrated by the averment at Section VI of their "Pre-Trial Statement," which says, "Defendant Mumma is not prepared to identify any specific exhibits at this time. He reserves the right to identify exhibits prior to the start of the trial on March 2, 2012." In sum, Kerr proposes to determine on his own schedule when he should file his complete Pre-Trial Memorandum, despite the specific Order of this Court that Kerr's and Mumma's Pre-Trial Memorandum should be filed by February 3, 2012. 19. Barton respectfully suggests to the Court that Kerr's and Mumma's failure to identify their exhibits is another blatant violation of this Court's Rules and Orders and should preclude the submission of any such exhibits. Indeed, the averment above should be proof positive that the conduct of Kerr and Mumma, contained in their Statement filed four days late, has been "dilatory, obdurate and vexatious," so sanctions are in order. 20. Barton has incurred damages and expenses as a result of KenJs willfully improper conduct since he was forced to prepare for and travel to and attend two Pre- Trial Conferences, and he incurred losses of income for those hours of travel and preparation and attendance. 21. Barton will be prepared to submit evidence of his losses at the Trial before the Court on March 2, 2012. 22. Barton submits that the Court should enter an Order that Kerr and Mumma or both of should compensate Barton in such amount as the Court deems appropriate and 4 Barton also submits that the Court should enter an Order authorizing the taxation of that amount as costs. 23. Since Kerr's contumacious and improper conduct occurred while Kerr was providing legal representation to Defendant Mumma and since Defendant Mumma benefitted from the delay caused by Kerr's actions, Barton submits that the taxation of such damages as costs is appropriate. 24. Pursuant to Local Rule 208.3(a)(9), Barton has not sought Kerr's concurrence in this Motion because that would have been futile. 25. Pursuant to Local Rule 208.3(a)(3), Barton has attached to this Motion an Order in the form of a Rule to Show Cause. Barton respectfully suggests that the hearing regarding this Motion should be and could be scheduled for the date and time of the Non-Jury Trial in this case, March 2, 2012, at 9:30 a.m. WHEREFORE, Plaintiff Robert W. Barton respectfully submits that the Court should enter an Order of sanctions against Defendant Robert M. Mumma, 11, or his counsel John M. Kerr, or both of them, in such amount as the Court deems appropriate. Dated: R lly s b r) Robert W. Barton -? 2123 Chestnut Street Harrisburg, Pennsylvania 17104 Telephone (717) 236-1123 5 CERTIFICATE OF SERVICE I hereby certify that I served the foregoing Motion by placing a true and correct copy thereof in the United States mail, postage prepaid, addressed as follows: John M. Kerr, Esquire 5020 Ritter Road, Ste. 104 Mechanicsburg, PA 17055 Robert W. Barton 6 V ROBERT W. BARTON, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. No. 2011 - 2142 CIVIL ROBERT M. MUMMA, 11 - }1 ?T Defendant, and CIVIL ACTION - LAW S (Judge Guido) , ROBERT M. MUMMA, II, Trustee : of The Robert M. Mumma, 11, Grantor Retained Annuity Trust, - Defendant ORDER NOW, this 13 3 day of February, 2012, upon consideration of the Motion for Sanctions filed herein by Plaintiff Robert W. Barton, it is hereby ORDERED as follows: 1. A rule is hereby issued upon Defendant to show cause why the Plaintiff is not entitled to the relief requested; 2. The Defendant shall file an Answer to the Motion within ten (10) days; 3. A hearing regarding the Motion shall be held on the date and time of the Non- Jury Trial in this case, March 2, 2012, at 9:30 a.m. BY TH RT Edward E. Guido, Judge `? Sad n h'I • l??('/', `1 P4, r4 uJ • /3ar 4o, C'°?p??s ma• It ? ???.??ia j?a? ? ROBERT W. BARTON, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2011-2142 CIVIL TERM ROBERT M. MUMMA, II, TRUSTEE OF THE ROBERT M. MUMMA, II, GRANTOR RETAINED ANNUITY TRUST, Defendant CIVIL ACTION - LAW IN RE: PRETRIAL CONFERENCE A pretrial conference was held on Thursday, February 8, 2012, before the Honorable Edward E. Guido, Judge. Robert W. Barton, Plaintiff, appeared pro se. John M. Kerr, Esquire, appeared on behalf of Defendant Mumma. This is a contract action that the parties estimate will take between one half to one day to try. Trial has been scheduled for March 2, 2012, commencing at 9:30 a.m. Absent a dire emergency, no continuances shall be granted. There are legal issues raised in the pretrial statements, none of which are particularly complicated. Settlement does not appear to be in the cards. Defendant Mumma has until close of business on February 21, 2012, to file an amended pretrial statement listing any exhibits he intends to present. He shall be precluded any exhibits at trial that are not so listed in his pretrial statement. By the Court, Edward E. Guido, J. Robert W. Barton Plaintiff, Pro se V John M. Kerr, Esquire For the Defendant srs yrj e,5 /hc,,'Ifd )e1L. L ROBERT W. BARTON, Plaintiff V. ROBERT M. MUMMA, II Defendant, and : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, ? ' PENNSYLVANIA rn Co .T =-n 2M ? r n rr,-... rn No. 2011 - 2142 CIVIL cn ? <CD x D Xr x. ? o CIVIL ACTION - LAW vC a _- I-(Judge Guido) c, ROBERT M. MUMMA, 11, Trustee : of The Robert M. Mumma, 11, Grantor Retained Annuity Trust, Defendant PLAINTIFF'S MOTION IN LIMINE TO PRECLUDE ADMISSION OF CERTAIN EVIDENCE AT TRIAL Plaintiff Robert W. Barton respectfully moves the Court to enter an Order prior to Trial precluding Mumma from presenting certain evidence at the Trial for the following reasons. 1. Mumma's counsel filed his Pretrial Statement in this matter on February 7, 2012, four days after it was due. 2. At the third unnumbered page of that Statement, Mumma's counsel avers that Barton's "claim is essentially fraudulent...." 3. The Rules of Civil Procedure require that averments of fraud must be made with particularity. Specifically, Rule 1019(b) of the Pennsylvania Rules of Civil Procedure states, "Averments of fraud or mistake shall be averred with particularity." 4. The appellate Courts have said the same. In its Opinion in Presbyterian Medical Center v. Budd, 832 A.2d 1066 (Pa. Super. 2004), the Superior Court discussed the mandates of Rule 1019(b) at some length: "The essence of fraud is a misrepresentation fraudulently uttered with the intent to induce the action undertaken in reliance upon it. In order to protect those against whom generalized and unsupported fraud may be levied, the Pennsylvania Rules of Civil Procedure require that fraud must be `averred with particularity.' Rule 1019(b). Thus a party raising a claim of fraud must set forth in its pleadings specific facts to support the alleged fraud. As the Supreme Court has explained the requirement and its purpose: Averments of fraud are meaningless epithets unless sufficient facts are set forth which will permit an inference that the claim is not without foundation or offered simply to harass the opposing party and to delay the pleader's own obligation...." 832 A.2d at 1072. See also Ellison v. Lopez, 959 A.2d 395 (Pa. Super. 2008), appeal denied 968 A.2d 233 (2009) and Bata v. Central- Penn National Bank of Philadelpa, 423 Pa. 373, 234 A.2d 174 (1966). 5. In this case, Mumma has failed to allege any facts whatsoever, either in his prior pleadings or in any of his prior submissions, that would support his claims of fraud by Barton. His averments are meaningless epithets" "offered simply to harass the opposing party." 6. In its Opinion in Presbyterian Medical Center, the Trial Court dismissed the claims of fraud and the Superior Court affirmed that dismissal. Barton urges the same result here. 7. Here, Mumma has raised the concept of fraud at the last minute and he has utterly failed to properly state his claim. WHEREFORE Plaintiff Barton respectfully submits that the Court should enter an Order precluding Mumma from raising or attempting to prove any fraud by Barton. 2 Date R . pectful b Y Robert W. Barton 2123 Chestnut Street Harrisburg, Pennsylvania 17104 Telephone (717) 236-1123 CERTIFICATE OF SERVICE I hereby certify that I served the foregoing Motion by placing a true and correct copy thereof in the United States mail, postage prepaid, addressed as follows: John M. Kerr, Esquire 5020 Ritter Road, Ste. 104 Mechanicsburg, PA 17055 i?/ ,l U? Robert W. Barton 3 ' i , ROBERT W. BARTON, Plaintiff V. ROBERT M. MUMMA, II, Defendant, and ROBERT M. MUMMA, II, Trustee of the Robert M. Mumma, II, Grantor Retained Annuity Trust, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 11- 2142 JUDGE EDWARD E. GUIDO ANSWER TO MOTION FOR SANCTIONS 1. ADMITTED. c7 C= rv t-? MCD z:;o r o ` t:) C_- ra c- -+ n ' 2. ADMITTED. Byway of additional answer, undersigned counsel was scheduled for knee replacement surgery on the some date, at 7:30 a.m. 3. ADMITTED. 4. DENIED. The Motion which Robert W. Barton (hereinafter, 'Barton")hand-delivered to I 'C' 5020 Ritter Road Suite 104 MeeharUCSburg,PA 17055 P110NE: 717.766.4008 FAx: 717.766.4066 undersigned counsel on the afternoon of the Pre-Trial Conference did not contain a page 2 and, consequently, was missing paragraphs 4-9. In fact, the original copy given to undersigned counsel still contains the original yellow paperclip and the name "Kerr" written on page 1 presumably by Barton. Nevertheless, assuming that Barton is complaining about the failure of undersigned counsel to appear at the December 22, 2011 Pre-Trial Conference, counsel filed a Motion For Continuance which was granted by Judge Guido, based upon the medical necessity. There was no point in submitting a Pre-Trial Memo for a conference undersigned counsel was unable to attend. 5. DENIED. Undersigned counsel incorporates by reference, as if fully set forth in its entirety, his answer to paragraph 4 above. 6. DENIED. Undersigned counsel incorporates by reference, as if fully set forth in its entirety, his answer to paragraph 4 above. 7. DENIED. Undersigned counsel incorporates by reference, as if fully set forth in its 5020 Ritter Road Suite 104 Mechanicsburg. PA 17055 Pllow: 717.766.4008 FAx: 717.766.4066 entirety, his answer to paragraph 4 above. 8. DENIED. Undersigned counsel incorporates by reference, as if fully set forth in its entirety, his answer to paragraph 4 above. 9. DENIED. Undersigned counsel incorporates by reference, as if fully set forth in its entirety, his answer to paragraph 4 above. 10. DENIED. The averment at paragraph 10 of the Barton Motion represents a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. The Rule speaks for itself. 11. DENIED. The averment at paragraph 11 of the Barton Motion represents a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. 12. ADMITTED. 13. DENIED. The averment at paragraph 13 of the Barton Motion represents a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. By way of further answer, Judge Guido resolved this issue at the Pre-Trial Conference by giving Defendants until February 21, 2012 in which to file an Amended Pre-Trial Memorandum/Statement. On February 21, 2012, Defendants did file such a statement. 14. DENIED. The averment at paragraph 14 of the Barton Motion represents a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. 15. ADMITTED in part and DENIED in part. Undersigned counsel has filed two Pre-Trial Statements/Memoranda and attended the Pre-Trial Conference on February 9, 2012. The Court has issued an Order from that Conference setting the stage for a trial on March 2, 2012. 16. DENIED. The Court is aware that undersigned counsel was undergoing major surgery requiring recuperation and physical therapy over a period of three months. Its Orders reflect that fact. 17. DENIED. The Court is aware that counsel was undergoing major surgery requiring recuperation and physical therapy over a period of three months. 18. DENIED. Undersigned counsel incorporates by reference, as if fully set forth in its entirety, his answer to paragraph 16 above. 19. DENIED. The Court has already ruled on this issue. Defendants incorporate by reference, as if fully set forth in their entirety, its answer to paragraph 13 above. 20. DENIED. Defendants lack sufficient information to form a belief as to the truth of the averment contained at paragraph 20 of the Barton motion and, accordingly, deny the some. Strict proof is demanded. 21. DENIED. Defendants have no idea of what Barton will or will not produce at trial. 22. DENIED. The averment at paragraph 22 of the Barton Motion represents a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. 23. DENIED. The averment at paragraph 23 of the Barton Motion represents a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. 24. DENIED. The averment at paragraph 24 of the Barton Motion represents a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. 25. DENIED. The averment at paragraph 25 of the Barton Motion represents a conclusion of Y",", •n arc. PC law to which no response is required under the Pennsylvania Rules of Civil Procedure. 5020 Ritter Road suite 104 Mechanicsburg, PA 17055 PHONE: 717.766.4005 FAx: 717.766.4066 WHEREFORE, it is requested that the Motion For Sanctions filed by Robert Barton be denied. Respectfully submitted, 1? . K-, Joh M. Kerr, Esquire Attorney I.D.#26414 John Kerr Law, P.C. 5020 Ritter Road Suite 104 Mechanicsburg, PA 17055 (71) 766-4008 Dated: February 23, 2012 >i,?, ?_ •?? ?,. he 5020 Ritter Road Suite 104 Mechanicsburg, PA 17055 PHONE: 717.766.4008 FAx: 717.766.4066 CERTIFICATE OF SERVICE The undersigned hereby certifies that he has served a copy of the foregoing, "Answer To Motion For Sanctions" on the below-named individual in the manner indicated: First Class Mail Postage Prepaid Robert W. Barton 2123 Chestnut Street Harrisburg, PA 17104 John . Kerr, Esquire 502 Ritter Road Suite 104 Mechanicsburg, PA 17055 (717) 766-4008 Dated: February 23, 2012 5020 Ritter Road Suite 104 Mechanicsburg, PA 17055 PHONE: 717.766.4008 FAx: 717.766.4066 ROBERT W. BARTON, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. No. 2011 - 2142 CIVIL a ROBERT M. MUMMA, II 7c Defendant, and M CIVIL ACTION - LAW ? 70C' (Judge Guido) r-? r- C-1 - ROBERT M. MUMMA, II, Trustee : .? ; of The Robert M. Mumma, II, . = Grantor Retained Annuity Trust, `- Defendant ORDER NOW, this dP day of February, 2012, upon consideration of the Motion In ,1A-,i b-6A) i 6- D. W*- w-CAt 4s4-A wm?Z4 -t? - - Limine te4a4ac -tip AdmiCCinn of Certain 1:11irio139e VA • not It held- 00419,64 U.- Li- n- , BY T _ RT Edward E. Guido, Judge lclerr Cp; es tkur de d a /,)5j-/i jL IP4' ROBERT W. BARTON, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2011-2142 CIVIL TERM ROBERT M. MUMMA, II, TRUSTEE OF THE ROBERT M. MUMMA, II, GRANTOR RETAINED ANNUITY TRUST, Defendant CIVIL ACTION - LAW IN RE: BRIEFS DUE ORDER OF COURT AND NOW, this 2nd day of March, 201.2, the parties are given until noon on Friday, March 9, 2012, to file a brief in support of their respective positions. By the Court, Edward E. Guido, J. Robert. W. Barton Plaintiff, Pro se John M. Kerr, Esquire Attorney for Defendant s rs f, LS r? =m p" M -0 z7 ryi cnr' ?` :Z ' - s-- C1 - t-i =7 ca r. 3' 1 7C ROBERT W. BARTON, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW ROBERT M. MUMMA, II and ROBERT NO. 2011-2142 M. MUMMA, II, Trustee of the Robert M. Mumma, II, Grantor Retained Annuity Trust,: Defendant ORDER OF COURT For the reasons set forth in the accompanying opinion, we find in favor of Plaintiff Robert W. Barton and against Defendant Robert M. Mumma, in his individual capacity, on Plaintiff's breach of contract claim in the amount of $12,365. We find in favor Plaintiff and against Defendant on the counterclaim. Because there is no evidence that Defendant acted in his capacity as trustee during his business relationship with the Plaintiff, we find in favor of Defendant in his capacity as trustee on the breach of contract claim. Z)A-A A?o?t,'L ? ? ? o?? By the Court, (?;w Robert W. Barton Plaintiff, Pro se i/ John M. Kerr, Esquire Attorney for Defendant : aqg MCC, l e'y L111 l 1 / :;t' Edward E. Guido, J. . i... 1. - r\3 1 ROBERT W. BARTON, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW ROBERT M. MUMMA, II and ROBERT NO. 2011-2142 M. MUMMA, II, Trustee of the Robert M. Mumma, II, Grantor Retained Annuity Trust,: Defendant OPINION This case involves a contract dispute between Plaintiff Robert W. Barton ("Plaintiff') and Defendant Robert M. Mumma, II ("Defendant') individually and as trustee of the Robert M. Mumma, II, Grantor Retained Annuity Trust. We conducted a non jury trial on March 2, 2012. For the reasons set forth below, we find in favor of Plaintiff on both the claim and counterclaim 1. FINDINGS OF FACT Plaintiff had been licensed to practice law in Pennsylvania until he was disbarred by consent in 1998. Between November of 2006 and March of 2008, Plaintiff was employed as a paralegal by the Law Offices of Eric J. Weiner, LLC. Defendant had used the offices of Attorney Weiner, which included paralegal services provided by Plaintiff. At some point prior to March of 2008, Defendant hired James Gault, Esquire so serve as an in-house attorney for his various concerns. In March of 2008 Plaintiff ceased his employment with the Law Offices of Eric J. Wiener, LLC. He entered into an oral contract with Defendant to provide paralegal services as an independent contractor for a fee of $90 per hour. Plaintiff s services consisted of legal research and the preparation of briefs, memoranda, and pleadings. These services were provided to Defendant in his individual capacity and not in his capacity as trustee of the Robert M. Mumma, II, Grantor Retained Annuity Trust. At all relevant times, Plaintiff acted under the supervision of Defendant's in-house counsel James G. Gault, Esquire, who is licensed to practice law in the Commonwealth of Pennsylvania. Between March of 2008 and January of 2011, Plaintiff periodically billed Defendant for services rendered. Defendant periodically paid these invoices. The relationship continued until Defendant ceased paying the Plaintiff in January of 2011. As of that date, Defendant owed the Plaintiff $12,365 for unpaid paralegal fees. Although the issue is contested, we find that during his relationship with the Defendant, Plaintiff never misrepresented himself as a licensed attorney. Furthermore, we are satisfied that Defendant knew Plaintiff was not a licensed attorney. We also find that at all times during their professional relationship, Plaintiff rendered competent paralegal services to Defendant. Defendant accepted these services without complaint. Defendant never directed the Plaintiff to cease the performance of his services. He merely stopped paying for them. Furthermore, Attorney Gault confirmed that Plaintiff's services were competent and appropriate. 11. DISCUSSION Plaintiff's complaint states a claim for breach of contract. The undisputed evidence at trial revealed that in March of 2008, Plaintiff and Defendant formed an oral contract in which Plaintiff was to provide services to Defendant for an hourly fee of $90. Plaintiff performed the agreed upon services, and Defendant periodically paid the invoices submitted to him. The unpaid balance was $12,365. Defendant raises two defenses to the contract claim. Defendant argues that the contract claim fails because he was led to believe that Plaintiff was a licensed attorney. Plaintiff testified credibly that he never represented himself as a licensed 2 attorney. Furthermore, we were satisfied that Defendant knew that Plaintiff was not a licensed attorney. Several factors led us to this conclusion. First, Plaintiff charged the Defendant only $90 per hour for his services, a figure well below market value for licensed, practicing attorneys. Second, Plaintiff never personally filed any briefs or pleadings with the court; all of the filings with which Plaintiff assisted were signed by Attorney Gault. Third, none of the correspondence between Plaintiff and Defendant contained a letterhead or signature block that used the term "attorney," "esquire," or any other designation implying that Plaintiff was licensed to practice law. Finally, Plaintiff's exhibit B-3 contains an e-mail in which Plaintiff urges Defendant to retain legal counsel. Defendant also argues that the contract is illegal and unenforceable. He contends that Plaintiff was in violation of Rule 2170) of the Pennsylvania Rules of Disciplinary Enforcement and engaged in the unauthorized practice of law in violation of 42 Pa.C.S. § 2524(a). Defendant concedes that a violation of the Disciplinary Rules would not, by itself, void the contract. However, he relies on authority from the Lehigh County Court of Common Pleas that suggests that a violation of the Rules in combination with a violation of a criminal statute may render the contract void as against public policy. Foote v. Shapiro, 6 D. & C. 3d 574, 576 (1978). 42 Pa.C.S. § 2524(a) provides in relevant part as follows: "any person, including, but not limited to, a paralegal or legal assistant, who within this Commonwealth shall practice law ... without being an attorney at law ... commits a misdemeanor of the third degree upon a first violation." The statute does not precisely identify actions that constitute the unauthorized practice of law nor did our research reveal any cases applying the criminal statute to formerly admitted attorneys. We note, however, that Rule 2170) permits formerly admitted attorneys to engage in certain law-related activities under the supervision of a licensed attorney. Such 3 activities include conducting legal research and drafting briefs, pleadings, and similar documents. 204 Pa. Code § 2170)(2)(i)-(ii). These are precisely the type of services contracted for by Defendant and provided by Plaintiff. We reason that the criminal statute must be read to permit this conduct. In the present case, we found the testimony of both Attorney Gault and Plaintiff to be credible. At all times, Plaintiff was appropriately supervised by Attorney Gault. Defendant was aware of Plaintiff's status as a formerly admitted attorney and contracted for paralegal services to be performed under the supervision of Attorney Gault. If, as alleged by the Defendant, the Plaintiff committed a technical violation of Rule 217 in the course of his supervised work,' such a violation does not rise to the level of a criminal violation. A contrary holding would improperly transform the Rules of Professional Conduct into a positive enactment of substantive law. See In re Estate of Pedrik, 482 A.2d 215, 217 (Pa. 1984); Pa.R.P.C., Preamble. Accordingly, we find that the oral contract was legal and enforceable. Finally, Defendant counterclaims that Plaintiff breached his duty to Defendant by failing to exercise ordinary skill and knowledge in rendering paralegal services. However, he offered no evidence aside from his own opinion to support the claim. We were not persuaded. To the contrary. Attorney Gault testified that in his view Plaintiff competently provided research and writing services, and Attorney Gault made very few changes to Plaintiff s work product. Furthermore, at least one e-mail sent by Defendant to Plaintiff indicates Defendant's satisfaction with Plaintiff s services. Accordingly, we find in favor of Plaintiff on the counterclaim. ' Defendant alleges three separate violations of the Pennsylvania Rules of Disciplinary Enforcement including: (1) Rule 2170)(4)(ii) prohibiting a formerly admitted attorney from performing law-related services from an office not staffed full-time by a supervising attorney; (2) Rule 2170)(4)(v) preventing a formerly admitted attorney from communicating directly with clients regarding substantive legal matters; and (3) Rule 2170)(5) requiring the supervising attorney and the formerly admitted attorney to file a notice of engagement with the Disciplinary Board. 4 ORDER OF COURT For the reasons set forth in the accompanying opinion, we find in favor of Plaintiff Robert W. Barton and against Defendant Robert M. Mumma, in his individual capacity, on Plaintiff's breach of contract claim in the amount of $12,365. We find in favor Plaintiff and against Defendant on the counterclaim. Because there is no evidence that Defendant acted in his capacity as trustee during his business relationship with the Plaintiff, we find in favor of Defendant in his capacity as trustee on the breach of contract claim. By the Court, /s/ Edward E. Guido Edward E. Guido, J. Robert W. Barton Plaintiff, Pro se John M. Kerr, Esquire Attorney for Defendant aqg ROBERT W. BARTON, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. No. 2011 - 2142 CIVIL ROBERT M. MUMMA, II Defendant, and C-) CIVIL ACTION - LAW -oz (Judge Guido) Ml--- ROBERT M. MUMMA, 11, Trustee : Vic, of The Robert M. Mumma, 11, Grantor Retained Annuity Trust, 5,f- co , Defendant PRAECIPE FOR ENTRY OF JUDGMENT Pursuant to the Order entered herein on April 11, 2012, by the Honorable Edward E. Guido, Judge, copy attached, Plaintiff Robert W. Barton respectfully requests entry of Judgment in his favor and against Robert M. Mumma, 11, Defendant, as follows: Principal amount due .................................... $12,365 This Entry of Judgment is appropriate pursuant to Pennsylvania Rule of Civil Procedure 227.4 because no timely post-trial motions have been filed. qated: ff Re e y s ed, Robert W. Barton, pro se 2123 Chestnut Street Harrisburg, Pennsylvania 17104 Telephone (717) 236-1123 *110.50 Ph PLW CASH 04#7410 N W Mailed CERTIFICATE OF SERVICE I hereby certify that I served the foregoing Praecipe for Entry of Judgment by placing a true and correct copy thereof in the United States mail, first class postage prepaid, addressed as follows: John M. Kerr, Esquire 5020 Ritter Road, Ste. 104 Mechanics urg, PA 17055 4.. Robert W. Barton ROBERT W. BARTON, Plaintiff V. : IN THE COURT OF COMMON PLEAS Of CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW ROBERT M. MUMMA, II and ROBERT NO. 2011-2142 M. MUMMA, II, Trustee of the Robert M. AAhtmma IT Grantnr Retained Annuity Trust.: Defendant OI U= OF COURT Fcr •u° .. cf%nv cm fnrtk ;n thp. artmmnanvina oninion. we find in favor of Plaintiff Robert W. Barton and against Defendant Robert M. Mumma, in his individual capacity, on plaintiff s breach of contract claim in the amount of $12,365. We find in favor Plaintiff and r% _ s J_ .? A- n ?:antn,nlnim RBPQIlRP !!1PlA is nn PV;CiPn[P. that Defendant acted in his 2 itIt1S11Ji 1,11%4"19% v.A <is? 1-1- -- --- - capacity as trustee during his business relationship with the Plaintiff, we find in favor of Defendant in his capacity as trustee on the breach of contract claim. -1k 'A.-S. am&#" two • Robert W. Barton Plaintiff, Pro se AtAw'! '# e .9 A i! V John M. Kerr, Esquire Attorney for Defendant :aqg 6p, t.s MAI tee( L111 t,t a By the Court, Edward E. Guido, J. 1 ROBERT W. BARTON, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW ROBERT M. MUMMA, II and ROBERT : NO. 2011-2142 M. MUMMA, II, Trustee of the Robert M. : Mumma, II, Grantor Retained Annuity Trust,: Defendant PINT N This case involves a contract dispute between Plaintiff Robert W. Barton ("Plaintiffs and Defendant Robert M. Mumma, II ("Defendant") individually and as trustee of the Robert M. Mumma, II, Grantor Retained Annuity Trust. We conducted a non-jury trial on March 2, 2012. For the reasons set forth below, we find in favor of Plaintiff on both the claim and counterclaim FINDINGS OF FACT Plaintiff had been licensed to practice law in Pennsylvania until he was disbarred by consent in 1998. Between November of 2006 and March of 2008, Plaintiff was employed as a paralegal by the Law Offices of Eric J. Weiner, LLC. Defendant had used the offices of Attorney Weiner, which included paralegal services provided by Plaintiff. At some point prior to March of 2008, Defendant hired James Gault, Esquire so serve as an in-house attorney for his various concerns. In March of 2008 Plaintiff ceased his employment with the Law Offices of Eric J. Wiener, LLC. He entered into an oral contract with Defendant to provide paralegal services as an independent contractor for a fee of $90 per hour. Plaintiffs services consisted of legal research and the preparation of briefs, memoranda, and pleadings. These services were provided to Defendant in his individual capacity and not in his capacity as trustee of the Robert M. Mumma, H, Grantor Retained Annuity Trust. At all relevant times, Plaintiff acted under the supervision of Defendant's in-house counsel James G. Gault, Esquire, who is licensed to practice law in the Commonwealth of Pennsylvania. Between March of 2008 and January of 2011, Plaintiff periodically billed Defendant for services rendered. Defendant periodically paid these invoices. The relationship continued until Defendant ceased paying the Plaintiff in January of 2011. As of that date, Defendant owed the Plaintiff $12,365 for unpaid paralegal fees. Although the issue is contested, we find that during his relationship with the Defendant, Plaintiff never misrepresented himself as a licensed attorney. Furthermore, we are satisfied that Defendant knew Plaintiff was not a licensed attorney. We also find that at all times during their professional relationship, Plaintiff rendered competent paralegal services to Defendant. Defendant accepted these services without complaint. Defendant never directed the Plaintiff to cease the performance of his services. He merely stopped paying for them. Furthermore, Attorney Gault confirmed that Plaintiffs services were competent and appropriate. II. DISCUSSION Plaintiffs complaint states a claim for breach of contract. The undisputed evidence at trial revealed that in March of 2008, Plaintiff and Defendant formed an oral contract in which Plaintiff was to provide services to Defendant for an hourly fee of $90. Plaintiff performed the agreed upon services, and Defendant periodically paid the invoices submitted to him. The unpaid balance was $12,365. Defendant raises two defenses to the contract claim. Defendant argues that the contract claim fails because he was led to believe that Plaintiff was a licensed attorney. Plaintiff testified credibly that he never represented himself as a licensed 2 attorney. Furthermore, we were satisfied that Defendant knew that Plaintiff was not a licensed attorney. Several factors led us to this conclusion. First, Plaintiff charged the Defendant only $90 per hour for his services, a figure well below market value for licensed, practicing attorneys. Second, Plaintiff never personally filed any briefs or pleadings with the court; all of the filings with which Plaintiff assisted were signed by Attorney Gault. Third, none of the correspondence between Plaintiff and Defendant contained a letterhead or signature block that used the term "attorney," "esquire," or any other designation implying that Plaintiff was licensed to practice law. Finally, Plaintiff's exhibit B-3 contains an e-mail in which Plaintiff urges Defendant to retain legal counsel. Defendant also argues that the contract is illegal and unenforceable. He contends that Plaintiff was in violation of Rude 2176) of the Pennsylvania Rules of Disciplinary Enforcement and engaged in the unauthorized practice of law in violation of 42 Pa.C.S. § 2524(a). Defendant concedes that a violation of the Disciplinary Rules would not, by itself, void the contract. However, he relies on authority from the Lehigh County Court of Common Pleas that suggests that a violation of the Rules in combination with a violation of a criminal statute may render the contract void as against public policy. Foote v. Shapiro, 6 D. & C. 3d 574, 576 (1978). 42 Pa.C.S. § 2524(a) provides in relevant part as follows: "any person, including, but not limited to, a paralegal or legal assistant, who within this Commonwealth shall practice law ... without being an attorney at law ... commits a misdemeanor of the third degree upon a first violation." The statute does not precisely identify actions that constitute the unauthorized practice of law nor did our research reveal any cases applying the criminal statute to formerly admitted attorneys. We note, however, that Rule 2176) permits formerly admitted attorneys to engage in certain law related activities under the supervision of a licensed attorney. Such 3 activities include conducting legal research and drafting briefs, pleadings, and similar documents. 204 Pa. Code § 2170)(2xi)-(ii). These are precisely the type of services contracted for by Defendant and provided by Plaintiff. We reason that the criminal statute must be read to permit this conduct. In the present case, we found the testimony of both Attorney Gault and Plaintiff to be credible. At all times, Plaintiff was appropriately supervised by Attorney Gault. Defendant was aware of Plaintiffs status as a formerly admitted attorney and contracted for paralegal services to be performed under the supervision of Attorney Gault. If, as alleged by the Defendant, the Plaintiff committed a technical violation of Rule 217 in the course of his supervised work,' such a violation does not rise to the level of a criminal violation. A contrary holding would improperly transform the Rules of Professional Conduct into a positive enactment of substantive law. See In re Estate of Pedrik, 482 A.2d 215, 217 (Pa. 1994); Pa.R.P.C., Preamble. Accordingly, we find that the oral contract was legal and enforceable. Finally, Defendant counterclaims that Plaintiff breached his duty to Defendant by failing to exercise ordinary skill and knowledge in rendering paralegal services. However, he offered no evidence aside from his own opinion to support the claim. We were not persuaded. To the contrary. Attorney Gault testified that in his view Plaintiff competently provided research and writing services, and Attorney Gault made very few changes to Plaintiff s work product. Furthermore, at least one e-mail sent by Defendant to Plaintiff indicates Defendant's satisfaction with Plaintiffs services. Accordingly, we find in favor of Plaintiff on the counterclaim. ' Defendant alleges three separate violations of the Pennsylvania Rules of Disciplinary Eaf vement including: (1) Rule 217OX4xii) prolubiting a formerly admitted attorney frown performing law-related services from an office not staffed full-time by a supervising attonmy; (2) Rule 217QX4xv) preventing a formerly admitted Worney from communicating directly with clients regarding substantive legal matters; and (3) Rule 2176XS) requiring the supervising attorney and the formerly admitted anomey to file a notice of engagement with the Disciplinary Board. 4 ORDER Old' COURT For the reasons set forth in the accompanying opinion, we find in favor of Plaintiff Robert W. Barton and against Defendant Robert M. Mumma, in his individual capacity, on Plaintiff's breach of contract claim in the amount of $12,365. We find in favor Plaintiff and against Defendant on the counterclaim. Because there is no evidence that Defendant acted in his capacity as trustee during his business relationship with the Plaintiff, we find in favor of Defendant in his capacity as trustee on the breach of contract claim. By the Court, /s/ Edward E. Guido Edward E. Guido, J. Robert W. Barton Plaintiff, Pro se John M. Kerr, Esquire Attorney for Defendant :aq8 FILEU-OFFICE T HE PR0TH0N0Ti L0.12 MAY -4 AM 11:24 CUMBERLAND GOLIN i Y ROBERT W. fMlal+(ANIA : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. No. 2011 - 2142 CIVIL ROBERT M. MUMMA, Il Defendant, and CIVIL ACTION - LAW (Judge Guido) ROBERT M. MUMMA, Il, Trustee : of The Robert M. Mumma, II, Grantor Retained Annuity Trust, Defendant BILL OF COSTS Recurring Interest on $12,365 @ 6% at daily rate of $ 2.03 for 440 days (2/23/2011 to 5/4/12)....... Costs Prothonotary Sheriff Prothonotary Witness fees Total costs now due 2/23/2011 3/3/2011 4//24/12 2/17/12 $893.22 $90.00 $60.44 $16.50 8.08 $1068.24 Date : tfu b , Robert W. Barton, pro Se 2123 Chestnut Street Harrisburg, Pennsylvania 17104 Telephone (717) 236-1123 CERTIFICATE OF SERVICE I hereby certify that I served the foregoing Bill of Costs by placing a true and correct copy thereof in the United States mail, first class postage prepaid, addressed as follows: John M. Kerr, Esquire 5020 Ritter Road, Ste. 104 Mech nicsburg, PA 17055 Robert W. Barton ROBERT WAARTON, Plaintiff V. ROBERT M. MUMMA, II, Defendant, and ROBERT M. MUMMA, II, Trustee of the Robert M. Mumma, II, Grantor Retained Annuity Trust, Defendants ORDER IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION -LAW NO. 11- 2142 c`) '-, f 1, C -? C-? r .. AND NOW, upon consideration of the Motion For A Protective Order/To Quash Subpoena, it is hereby ORDERED and DECREED, as follows: 1. A Protective Order is granted in favor of attorney John M. Kerr. The deposition and request for production of documents as to John M. Kerr, scheduled for Wednesday, May 16, 2012, is precluded. 2. The subpoena, compelling John M. Kerr, Esq. to attend said deposition and to produce documents, is hereby quashed. r fees -- or 1 BY T T: / J. Distribution: _,"J"ohn M. Kerr, Esq., 50,20 Ritter Road, Suite 104, Mechanicsburg, PA 17055 /i?obert M. Barton, 2123 Chestnut Street, Harrisburg, PA 17104 F I e--4, rnc,7- E 5 !7 /l2--, -Zrilll ROBERT W. BARTON, Plaintiff V. ROBERT M. MUMMA, II and ROBERT M. MUMMA, II, Trustee of the Robert M. Mumma, II, Grantor Retained Annuity Trust, Defendant IN THE COURT OF COMMON PLEAS of CUMBERLAND COUNTY, PENNSYLVANIA NO. 2011-2142 CIVIL ACTION - LAW° i PRAECIPE To the Prothonotary: Please mark the judgment in this case settled, satisfied, and discontinued with prejudice. Respectfully Submitted, By: Robert W. Barton, pro se 2123 Chestnut Street Harrisburg, PA 17104 (717) 236-1123 LATE: ? Z,D I F:\daw\5893 - MUMMA?, II, ROBERT M\10056- GENERAL\Documents\PRAECIPE TO SATISFY JUDGMENT.doc 5/30/12 9:56 AM