HomeMy WebLinkAbout04-06-11 (2)C'7
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IN THE COURT OF COMMON PLEAS; ~ c~
OF CUMBERLAND COUNTY, PENNSYLVANIA
IN RE ESTATE OF
ROBERT M. MUMMA,
Deceased.
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ORPHANS' COURT DIV1~N
N0.21-86-398
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EMERGENCY MOTION FOR PROTECTION WITH RESPECT TO DEPOSITIONS OF
SCOTT W. MORGAN, ESQUIRE, THOMAS A. FRENCH, ESQUIRE AND MARL J.
SONNENFELD, ESQUIRE, NOTICED BY ROBERT M. MUMMA, II
Pursuant to Rule 4012 of the Pennsylvania Rules of Civil Procedure, Lisa M. Morgan, as
trustee under the will of Robert M. Mumma, Sr., respectfully moves this Court as follows for an
order of protection with respect to Notices of Deposition directed to Scott W. Morgan, Esquire,
Thomas A. French, Esquire and Marc J. Sonnenfeld, Esquire in the above-captioned action:
1. Robert M. Mumma, Sr. died on April 12, 1986.
2. Mrs. Morgan and her late mother, Barbara McK. Mumma, were named as executrices
of and trustees of Marital and Residuary Trusts under Mr. Mumma, Sr.'s will.
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3. Mrs. Mumma and Mrs. Morgan filed interim and final accounts of their actions as
executrices of Mr. Mumma, Sr.'s Estate from the date of Mr. Mumma, Sr., through the closing of
the Estate on September 30, 2003.
4. Mrs. Mumma and Mrs. Morgan also filed interim accounts for the Marital and
Residuary Trusts for all periods from their inception through and including December 31, 2003.
5. Robert M. Mumma, II and Barbara M. Mumma filed objections to Mrs. Mumma and
Mrs. Morgan's accounts for the Estate and the Trusts.
6. Beginning in Apri12009, and continuing over a total of 33 days ending in June 2010,
Auditor Joseph Buckley presided over hearings with respect to the objections filed by Mr.
Mumma, II, and Babs Mumma.
7. In addition, Mr. Mumma, II, filed a "Further Motion for Removal of Executrices
and/or Trustees" on May 30, 2008. In that motion, Mr. Mumma, II, "incorporate[d] by reference
...the averments ofl' two previously-filed petitions seeking removal of Mrs. Mumma and Mrs.
Morgan.
8. By order dated July 2, 2008, Mr. Mumma, II's, motion to remove Mrs. Mumma and
Mrs. Morgan was referred to the Court-appointed Auditor.
9. The 2009 and 2010 hearings before Auditor Buckley expressly encompassed all of the
allegations made by Mr. Mumma, II, in support of his motion to remove of Mrs. Mumma and
Mrs. Morgan as executrices and trustees. Mr. Mumma, II, presented extensive evidence and
testimony relating to that motion.
10. As a consequence, Mr. Mumma, II and Babs Mumma had a full opportunity to
present evidence relating to events that occurred prior to December 31, 2003 during the course of
the 2009 and 2010 hearings before Auditor Buckley. The record is closed in respect of such
matters.
11. In September 2010, Mrs. Morgan filed accounts for the Trusts for the period from
January 1, 2004 through and including that of Mrs. Mumma's death on July 17, 2010.
12. Mrs. Morgan also filed Petitions for Adjudication and Call for Audit or Confirmation
for the Marital and Residuary Trusts.
13. On November 22, 2010, Mr. Mumma, II, and Babs Mumma filed objections to the
accounts.
14. By Order dated November 24, 2010, the Court referred all objections to Auditor
Buckley.
15. Auditor Buckley has scheduled hearings on Mr. Mumma, II,'s and Babs Mumma's
objections for the week of May 2 through May 6, 2011.
16. In early March 2011, Robert M. Mumma, II, wrote to Scott W. Morgan, Esquire,
Mrs. Morgan's husband and a resident of Florida, Thomas A. French, Esquire, a partner with
Rhoads & Sinon in Harrisburg, and Marc J. Sonnenfeld, Esquire, a partner at the Philadelphia
office of Morgan, Lewis & Bockius LLP, inquiring as to their availability for depositions,
purportedly in connection with the upcoming hearing before Auditor Buckley.
17. Upon learning of these communications, counsel for Mrs. Morgan wrote on March
14, 2011 to Mr. Mumma, II, as follows:
We have received your correspondence dated March 3, 2011 to Thomas French, Marc
Sonnenfeld and Scott Morgan regarding their availability for depositions in the above-
referenced matter. It does not appear that any of the witnesses could offer testimony that
is even potentially relevant to matters that are properly the subject of the hearings before
the Auditor during the week of May 2, 2011. Those hearings relate solely to objections
you and Barbara M. Mumma have asserted to accounts filed by Lisa Morgan for the
Marital and Residual Trusts for the period from January 1, 2004 through July 17, 2010.
Insofar as we are aware, the only involvement Mr. French has had with any Mumma
family-related matters has been as counsel for Dauphin Deposit Bank -- later M&T Bank
-- in litigation you commenced in Dauphin County. Neither your mother nor Mrs.
Morgan was ever a party to that case, nor has Mr. French acted as counsel to them in any
matter. As a consequence, there is no conceivable relevance to any testimony that might
be elicited from Mr. French in connection with the hearings before the Auditor.
Mr. Sonnenfeld has not acted as counsel for the Trusts (or otherwise with respect to
matters related to your family) at any time since January 1, 2004. As such, we see no
appropriate basis on which to depose him. As you are aware, the Court quashed your
subpoena served on him prior to the January 28, 2010 hearing.
Finally, there is no basis to depose Mr. Morgan. You raised his name in the prior 33 days
of hearings before the Auditor only in connection with (a) the retrieval of certain
corporate documents from the offices of the Boswell firm, (b) a meeting with your
mother, Mrs. Morgan and counsel that you placed in 1986 or 1987, and (c) a small
number of invoices for legal work performed for your father's Estate and/or the Trusts.
All of these activities or events pre-dated January 1, 2004. In addition, the first two items
were covered extensively when your counsel deposed Mr. Morgan on February 8, 1999.
In light of the foregoing, Mrs. Morgan will seek protection, costs and other relief in the
event that you attempt to depose Messrs. French, Sonnenfeld or Morgan. Preparation for
and attendance at such depositions only threatens further burden and expense for the
Trusts, with no benefit in terms of discoverable or admissible evidence for the upcoming
hearing.
A copy of the letter is attached hereto as Exhibit "A."
18. Without having responded to counsel's March 14 letter, on or about March 21, 2011,
Mr. Mumma, II, mailed Notices of Deposition to Messrs. Morgan, French and Sonnenfeld
purporting to schedule their depositions for April 18, April 21 and Apri122, respectively. Copies
of the notices are attached hereto as Exhibits "B", "C" and "D".1
19. Mr. Mumma, II,'s sending of the notices portends that Mr. Mumma, II, intends to
attempt to raise or present evidence relating to issues well beyond those framed by the objections
raised to the final accounts. The unavoidable upshot of permitting him to do so would
unnecessary burden and expense to the Trusts to attend the depositions, order transcripts and the
like.
20. Moreover, in his Witness and Exhibit List submitted for the May hearings before the
Auditor, Mr. Mumma, II, has indicated his intent to try to produce evidence and testimony from
Messrs. Morgan, French and Sonnenfeld.
21. Under Pennsylvania procedure, no discovery is permitted which "would cause
unreasonable annoyance, embarrassment, oppression, burden or expense to [a] party."
While not directly germane to the scope of this motion, which relates to the irrelevance of any
testimony that might be elicited from Messrs. Morgan, French and Sonnenfeld, it is worth noting,
and Mrs. Morgan reserves all objections to, the service of the deposition notices to these individuals.
None of the witnesses is a party, so their attendance cannot be compelled by the mere mailing of a
notice of deposition. In addition, there are other witnesses whose depositions Mr. Mumma, II has
noticed to whose depositions Mrs. Morgan does not object, though she reserves her rights to object
to specific questions or areas of inquiry.
Pa.R.C.P. 4011(b); and the Court has the power to "protect a party .. .from unreasonable
annoyance, embarrassment, oppression, burden or expense" in connection with a deposition."
Pa.R.C.P. 4012.
22. In order to assess the appropriateness of these depositions, and to spare the Trusts the
burden and expense associated with attending depositions which may involve no relevant
examination, it is appropriate that the Court require Mr. Mumma, II, to state the intended scope
and purpose of the depositions. In order to explore this issue, Mrs. Morgan believes prompt
scheduling of discovery conference is appropriate.
23. In light of the fact that Mr. Mumma, II, did not respond to counsel's March 141etter
and, in fact, mailed the notices of deposition notwithstanding that letter, it is clear that Mr.
Mumma, II, does not concur with the relief requested in this motion.
24. Ms. Barbara M. Mumma has not responded to the request for concurrence prior to
this Motion being filed. It is assumed her concurrence is denied.
25. Ms. Linda M. Mumma does not concur with the relief requested in this motion.
26. Judge Oler has ruled on previous issues in this case.
WHEREFORE, for the foregoing reasons, Mrs. Morgan respectfully requests that this
Court enter an order in the form attached precluding Mr. Mumma, II, from taking the depositions
of Messrs. Morgan, French and Sonnenfeld. Alternatively, and at a minimum, the Court should
enter an order limiting the scope of examination at any deposition to issues relevant to the
appropriate scope of the May 2011 hearings before Auditor Buckley, including, at a minimum,
limiting any examination to events and activities occurring after January 1, 2004.
Respectfully submitted,
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No V. tto III, Esquire
I.D. No. 27763
George B. Faller, Jr., Esquire
I.D. No. 49813
Jennifer L. Spears, Esquire
I.D. No.87445
MARTSON DEARDORFF WILLIAMS OTTO
GILROY & FALLER
MARTSON LAW OFFICES
10 East High Street
Carlisle, PA 17013
(717) 243-3341
Brady L. Green, Esquire
MORGAN, LEWIS & BOCKIUS LLP
1701 Market Street
Philadelphia, PA 19103-2921
(215)963-5079
Dated: Apri16, 2011 Attorneys for Lisa M. Morgan
EXHIBIT A
Morgan, Lewis & Bockius uv
1701 Market Street
Philadelphia, PA 19103-2921
Tel: 215.963.5000
Fax: 215.963.5001
www.morganlewis.com
Brady L. Green
Partner
215.963.5079
bgreen@morganlewis.com
March 14, 2011
Mr. Robert M. Mumma, II
840- Market Street, Suite 33333
Lemoyne, PA 17043
1V.[or~;an L~-u~s
C O U N S E L O R S A T L A W
Re: In re Estate of Robert M. Mumma, Deceased, No. 21-86-398 (O.C. Cumberland,)
Dear Mr. Mumma:
We have received your correspondence dated March 3, 2011 to Thomas French, Marc
Sonnenfeld and Scott Morgan regarding their availability for depositions in the above-referenced
matter. It does not appear that any of the witnesses could offer testimony that is even potentially
relevant to matters that are properly the subject of the hearings before the Auditor during the
week of May 2, 2011. Those hearings relate solely to objections you and Barbara M. Mumma
have-asserted to accounts- filed by Lisa Morgan for the Marital-and Resi-dual Trusts for the period
from January 1, 2004 through July 17, 2010.
Insofar as we are aware, the only involvement Mr. French has had with any Mumma family-
related matters has been as counsel for Dauphin Deposit Bank -- later M&T Bank -- in litigation
you commenced in Dauphin County.. Neither your mother nor Mrs. Morgan was ever a party to
that case, nor has Mr. French acted as counsel to them in any matter. As a consequence, there is
no conceivable relevance to any testimony that might be elicited from Mr. French in connection
with the hearings before the Auditor.
Mr. Sonnenfeld has not acted as counsel for the Trusts (or otherwise with respect to matters
related to your family) at any time since January 1, 2004. As such, we see no appropriate basis
on which to depose him. As you are aware, the Court quashed your subpoena served on him
prior to the January 28, 2010 hearing.
Finally, there is no basis to depose Mr. Morgan. You raised his name in the prior 33 days of
hearings before the Auditor only in connection with (a) the retrieval of certain corporate
documents from the offices of the Boswell firm, (b) a meeting with your mother, Mrs. Morgan
and counsel that you placed in 1986 or 1987, and (e) a small number of invoices for legal work
performed for your father's Estate and/or the Trusts. All of these activities or events pre-dated
EXHIBIT "A"
Mr. Robert M. Mumma, II
March 14, 2011
Page 2
Morgan Le~-uis
COUNSELORS AT LA'O
January 1, 2004. In addition, the first two items were covered extensively when your counsel
deposed Mr. Morgan on February 8, 1999.
In light of the foregoing, Mrs. Morgan will seek protection, costs and other relief in the event
that you attempt to depose Messrs. French, Sonnenfeld or Morgan. Preparation for and
attendance at such depositions only threatens further burden and expense for the Trusts, with no
benefit in terms of discoverable or admissible evidence for the upcoming hearing.
Yours si cerely,
'~' ady L. n
cc: tv~arc ~ . ~onnenreta, rsq.
Scott W. Morgan, Esq.
Thomas A. French, Esq.
EXHIBIT B
IN RE: ESTATE OF
ROBERT M. MUMMA,
Deceased
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
ORPHAN'S COURT DIVISION
N0.21-86-398
TO: Scott Morgan, Esquire
1140 North Ocean Blvd.
Gulf Stream, FI 33483
NOTICE OF DEPOSITION
Pursuant to the Pennsylvania Rules of Civil Procedure and the Pennsylvania Orphans' Court
Rules, PLEASE TAKE NOTICE that the undersigned will take the deposition. of Scott Morgan,
Esquire on Monday, April 18th, 2011 beginning at 10:00 a.m. The deposition will take place at
the offices of Robert M. Mumma, II, 840 Market Street, Suite 33333, Lemoyne, Pennsylvania,
17043, before a Court Reporter duly authorized by law to administer oaths. The deposition will
continue from day to day until completed.
Dated: March 21, 20.11
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Robert M. Mumma, II
840 Market Street -Suite 33333
Lemoyne, Pennsylvania 17043
{717) 612 - 9720
PROSE
EXHIBIT "B"
CERTIFICATE OF SERVICE
I, Robert M. Mumma, II, pro se, do hereby certify that I caused a copy of the foregoing
Notice of Deposition to be served this date by U.S. Mail, first class, postage prepaid, addressed to:
Brady Green, Esquire
Morgan, Lewis & Bockius, LLP
1701 Market Street
Philadelphia, PA 19103-2921
No V. Otto, III, Esquire
1Vlartson Law Offices
10 East High Street
Carlisle, PA 17013
Barbara Mann Mumma
541 Bridgeview Dr.
Lemoyne, PA 17043
Linda Mumma Rath
c/o Carter Ellis
203 Friars Court
Mechanicsburg, PA 17050
Joseph D. Buckley, Esquire
Court-Appointed Auditor
1237 Holly Pike
Carlisle, PA 17013
Scott Morgan, Esquire
1140 North Ocean Blvd.
Gulf Stream, Fl 33483
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DATE: March 21, 2011 BY: w .. " ~ `'~
Robert M. Mumma, II
840-Market S#. -Ste. 33333
Lemoyne, PA 17043
717:- 612 - 9720
PROSE
EXHIBIT C
IN RE: ESTATE OF
ROBERT M. MUMMA,
Deceased
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
ORPHAN'S COURT DIVISION
N0.21-8b-39R
NOTICE OF DEPOSITION
TO: Thomas French, Esquire
Rhoads & Sinon
1 So. Market Square - POBox 114b
Harrisburg, Pa 17108
Pursuant to the Pennsylvania Rules of Civil Procedure and the Pennsylvania Orphans' Court
Rules, PLEASE TAKE NOTICE that the undersigned will take the deposition of Thomas
French, Esquire on Thursday, April 21st, 2011 beginning at 10:00 a.m. The deposition will take
place at the offices of Robert M. Mumma, II, $40 Market Street, Suite 33333, Lemoyne,
Pennsylvania, 17043, before a Court Reporter duly authorized by law to administer oaths. The
deposition will continue from day to day until completed.
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Dated: March 21, 2011 , ~ , ` ; . ,
Robert ~VI. M V _ --
ammo, II
840 Market Street. -Suite 33333
Lemoyne, Pennsylvania 17043
(717) 6 i 2 - 9720
PRf1.SF
EXHIBIT "C"
CERTIFICATE 4F SERVICE
I, Robert M. Mumma, II, pro se, do hereby certify that I caused a copy of the foregoing
Notice of Deposirion to be served this date by IJ.S. Mail, first class, postage prepaid, addressed to:
Brady Green, Esquire
Morgan, Lewis & Bockius, LLP
1701 Market Street
Philadelphia, PA 19103-2921
No V. Otto, III, Esquire
Martson Law Offices
10 East High Street
Carlisle, PA 17013
Barbara Mann Mumma
541 Bridgeview Dr.
Lemoyne, PA 17043
Linda Mumma. Roth
c/o Carter Ellis
203 Friars Court
Mechanicsburg, PA 17050
Joseph D. Buckley, Esquire
Court-Appointed Auditor
1237 Holly Pike
Carlisle, PA 17013
Thomas French, Esquire
Rhoads & Sinon
1 So. Market Square - POBox 1146
Harrisburg, Pa 17108
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DATE: March 21, 2011 By, `-,-~ ~ ~ ~;~`!~ , .~ . " `=r
Robert'M. Mumma, II
840 Market St. -Ste. 33333
Lemoyne, PA 17043
717-612-972
PROSE
EXHIBIT D
IN RE: ESTATE OF IN THE COURT OF COMMON PLEAS OF
ROBERT M. MUIvIMA, CUMBERLAND COUNTY, PENNSYLVANIA
Deceased
ORPHAN'S COURT DIVISION
N0.21-86-398
NOTICE OF DEPOSITION
TO: Marc Sonnenfeld, Esquire
Morgan Lewis & Bockius
1701 Market Street.
Philadelphia, PA 19103 - 2921
Pursuant to the Pennsylvania Rules of Civil Procedure and the Pennsylvania Orphans' Court
Rules, PLEASE TAKE NOTICE that the undersigned will take the deposition of Marc
Sonnenfeld, Esquire on Friday, Agril 22nd, 2011. beginning at 10:00 a.m. The deposition will
take place at the offices of Robert M. Mumma, II, 840 Market Street, Suite 33333, Lemoyne,
Pennsylvania, 17043, before a Court Reporter duly authorized by law to administer oaths. The
deposition will continue from day to day until- completed.
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Dated: March 2I, 2011 ~`~. ~ ' T `-~~ , ~ .=.~. ; .~ , ,"
Robert M. Mumma, II
840 Market Street -Suite 33333
Lemoyne, Pennsylvania 17043
(717) 612 - 9720
PR4 SE
EXHIBIT "D"
CERTIFICATE OF SERVICE
I, Robert M. Monona, Il, pro se, do hereby certify that I caused a copy of the faregaing
Notice of Deposition to be served this date by E.T.S. Mail, fast class, postage prepaid, addressed to:
Brady Green, Esquire
Morgan, Lewis & Bockius, LLP
1701 Market Street
Philadelphia, PA 1 9 1 03-292 1
No V. Otto, III, Esquire
Manson Law Offices
10 East High Street
Carlisle, PA 17013
Barbara Mann Mumma
541 Bridgeview Dr.
Lemoyne, PA 17043
Linda Mumma Roth
c/o Carter Ellis
203 Friars Court
Mechanicsburg, PA 17050
Joseph D. Buckley, Esquire
Court-Appointed Auditor
1237 Holly Pike
Carlisle, PA 17013
Marc Sonnenfeld, Esquire
Morgan Lewis & Bockius
1701 Market Street.
Philadelphia, PA 19103 - 2921
DATE: March 21, 201 I BY: ; ~?%;--~~ :' ,~ ,"
Robert M. Mumma, I I ``
840 Market St. -Ste. 33333
Lemoyne, PA 17043
717-612-9720
PKO SE
CERTIFICATE OF SERVICE
I, Tricia D. Eckenroad, an authorized agent for Martson Deardorff Williams Otto Gilroy &
Faller, hereby certify that a copy of the Emergency Motion for Protection with Respect to
Depositions was served this date by depositing same in the Post Office at Carlisle, PA, first class
mail, postage prepaid, addressed as follows:
Robert M. Mumma, II
6880 S.E. Harbor Circle
Stuart, FL 34996-1968
Robert M. Mumma, II
840 Market Street
Suite 33333
Lemoyne, PA 17043
Ms. Barbara M. Mumma
541 Bridgeview Drive
Lemoyne, PA 17043
Ms. Linda M. Mumma
512 Creekview Lane
Mechanicsburg, PA 17055
Joseph D. Buckley, Esquire
1237 Holly Pike
Carlisle, PA 17013
MARTSON LAW OFFICES
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ricia ~kenroad
en East H~1gh Street
Carlisle, PA 17013
Dated: Apri16, 2011 (717) 243-3341