HomeMy WebLinkAbout06-04-13 (3) FOEHL & EYRE,P.C. g o
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Robert B. Eyre, Esquire m v z 2
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27 East Front Street n m
Media, PA 19063 n� = '' c
ID No. 41990 0 �; o n
610-566-5926
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In the Court of Cort-O�ron Pleas --n
IN RE: Cumberland County, Pennsylvania
Estate of Robert M. Mumma, Deceased
No. 21-86-398
Orphans' Court Division
PETITION TO SUPPLEMENT RECORD AND/OR FOR RECONSIDERATION
OF PETITION TO EXTEND DISCOVERY DEADLINE
Petitioner Robert M. Mumma II ("Petitioner"), by and through his undersigned
counsel, Foehl & Eyre, P.C., hereby submits this Petition to supplement the record in
support of his prior Petition to Compel Compliance with Court's Order dated July 30,
2012 and for Sanctions and Alternatively, to Vacate Said Order("Petition to Compel")
and avers as follows:
1. Petitioner, acting pro se, filed the Petition to Compel on January 28, 2013
seeking, alternatively, to enforce or vacate an Order of this Court dated July 30, 2012 (the
"July 30, 2012 Order") that purported to authorize the liquidation of certain insurance
policies claimed to be owned by a corporation, DE Distribution, after certain information
was provided to the parties.
2. Petitioner was the named insured on the insurance policies at issue.
3. The July 30, 2012 Order was entered on the recommendation of Mr.
Joseph D. Buckley, Esquire (the "Auditor"), appointed pursuant to 20 Pa.C.S. §751 to
audit certain accountings filed by the Co-Executrixes of the Estate.
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4. The sole basis of the Auditor's recommendation was the existence of an
alleged agreement of counsel for the parties, including then counsel for Petitioner Jeffrey
Brooks, Esquire, to the relief proposed and granted in the Court's July 30, 2012 Order.
Petitioner denies that he or his counsel entered into such an agreement, and Petitioner's
disputation of the alleged agreement is one of the bases of the relief sought in the Petition
to Compel. It is also alleged in the Petition to Compel that the July 30, 2012 Order was
entered without opportunity for objections under Local Rule 8.7-2 and was, in any event,
not served on Petitioner or his counsel until after the insurance policies at issue were
liquidated by Respondent Morgan in December 2012.
5. On April 5, 2013 the Court entered an Order providing that the Petition to
Compel be decided pursuant to Pa.R.C.P. No. 206.7, with depositions to be completed
within 35 days, argument to be conducted on May 31, 2013 and briefs to be filed seven
days before.
C 6. On May 9, 2013, Petitioner, still pro se, filed a Petition to Extend
Discovery on the Petition to Compel, seeking to extend discovery to take the deposition
of Attorney Brooks. The Petition to Extend Discovery is incorporated herein by
reference as if set forth in full at this point.
7. This Court denied the Petition to Extend Discovery by Order dated
2013,. without a hearing.
8. In the meantime, in lieu of a deposition, Attorney Brooks provided an
Affidavit dated May 23, 2013 (the"Brooks Affidavit")concerning facts relevant to the
Petition to Compel, a copy of which was filed by Petitioner,pro se, on May 24, 2012
with the Petitioner's Brief("Petitioner's Brief) in support of the Petition to Compel.
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9. The undersigned counsel entered his appearance for Petitioner in this
matter on May 31, 2013 and appeared for Petitioner at the argument on that date.
10. At the May 31, 2013 argument, it was suggested by the Court and counsel
for Respondent Morgan that the affidavit was not part of the record.
11. The undersigned disputed that assertion, noting that the Affidavit was filed
with the Petitioner's Brief on May 24, 2013. Indeed, it was clear from the argument that
both the Court and counsel for Respondent were in possession of the Brief and Affidavit.
12. Following the May 31 argument, the undersigned learned from Petitioner
that Petitioner's Brief and the Brooks Affidavit were presented by Petitioner to the Clerk
of the Orphans' Court in the Office of the Register of Wills for Cumberland County on
May 24, 2013,but that Petitioner was instructed by the Clerk's office to file these papers
with Court Administration. Attached hereto as Exhibit "Y' is a true and correct copy of a
certification of Petitioner in lieu of affidavit("Petitioner's Certification") setting forth
what happened with respect to his attempt to file these papers with the Clerk.
13. Based on the foregoing, and as set forth more fully in Petitioner's
Certification, it is submitted that the Petitioner, acting pro se at the time, sought to file the
Brooks Affidavit with the Clerk of the Orphans' Court, and intended the same to be part
of the record before this Court for argument on May 31, 2013; that, in good faith and
without understanding the possible significance of not having the Brooks Affidavit
docketed as filed with the Clerk of the Orphans' Court, as opposed to Court
Administration, he followed the instructions of the Clerk and filed the papers with Court
Administration; and that, as confirmed at the hearing on May 31, both this Court and
counsel for Respondent Morgan, received the Brooks Affidavit with the Petitioner's Brief
in time for that hearing.
14. It is further submitted that, pursuant to Pa.R.C.P. No. 205.2, the Clerk of
the Orphans' Court should have accepted and docketed the Petitioner's Brief and
Affidavit as filed.
15. It is further submitted that allowance of the Brooks Affidavit is consistent
with the principles of liberal construction and application of the Rules of Civil Procedure
mandated under Pa.R.C.P. No. 126.
16. There is no conceivable prejudice to Respondent Morgan or the efficient
administration of justice in allowing the Brooks Affidavit to be admitted as part of the
record in these proceedings. In this regard, it is further noted that the Auditor's
Recommendation that resulted in the July 30, 2012 Order was a recommendation of
interim relief on Respondent Morgan's April 5, 2012 Petition for Authorization of Plan of
Liquidation ("Liquidation Petition"), for which the Auditor did not issue a final
recommendation until April 24, 2013. That April 24, 2013 Auditor Report is itself the
subject of pending objections by Petitioner and Barbara (Baby) Mumma, that remain
undecided. Among the objections to the Liquidation Petition, are objections to the subject
matter jurisdiction of this Court and the authority of the Auditor to address the relief
provided for in the July 30, 2012 Order. By way of further support of this Petition,
Petitioner hereby incorporates by reference his May 16, 2013 Objections to Auditor's
Interim Report of April 24, 2013 as if set forth in full at this point.
17. In the alternative, and for the same reasons, Petitioner requests the Court
to reconsider his Petition to Extend Discovery,extending discovery for a period of two
weeks from the date of such relief to complete the deposition of Attorney Brooks, leaving
the record open in the meantime.
WHEREFORE Petitioner requests that this Court enter an order deeming the
Brooks Affidavit filed of record on May 24, 2013, granting the Petition for Extension of
Discovery and/or granting such other relief as deemed equitable and just.
FOEHL &EYRE, P.0
By
Robe yre, Esquire
Attorney for Petitioner,
Robert M. Mumma, II
I.D. #41990
27 East Front Street
Media, PA 19063
610-566-5926 x 115
610-892-9307 —fax
rob @foehllaw.com
DATE: June 3, 2013
VERIFICATION
I,Robert M. Mumma,II,verify that that the statements made in the forgoing
Certification of Petitioner Robert M.Mumma,II in Support of Petition to Supplement
Record and/or for Reconsideration of Petition to Extend Discovery Deadline are true and
correct to the best of my knowledge, information and belief. I understand that false
statements herein are made subject to the penalties of 18 Pa. Cons. Stat.Ann. Sec.4904,
relating to unswom falsification to authorities.
Date: 33 W - il � � �,
Robert M. Mumma,II
IN RE: ESTATE OF ROBERT M. : IN THE COURT OF COMMON PLEAS OF
MUMMA, deceased : CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
NO, 21-86-398
AFFIDAVIT OF JEFFREY G. BROOKS
Jeffrey G. Brooks, upon being duly sworn, deposes and states as follows:
1. On December 4, 2012, during the course of a conference call requested
on approximately 2 hours notice by auditor Joseph Buckley, Esquire and in which Mr.
Buckley, No Otto, Esquire, Richard Rinaldo, Esquire and I participated, reference was
made either by Mr. Buckley or Mr. Otto to an Order of Court dated July 30, 2012. That
reference was my first indication that any Order had been entered on or about July 30,
2012 in this matter. Also, it was obvious from the conversation, reaction and statements
of Mr. Rinaldo that he also was unaware of the entry of the July 30, 2012 Order.
2. Mr. Rinaldo advised me after the December 4, 2012 conference call that
he immediately had contacted the Office of the Register of Wills and Clerk of the
Orphans' Court of Cumberland County and, in response to that call, received by fax a
copy of the July 30, 2012 Order. Mr. Rinaldo scanned and emailed to me a copy of that
Order as well as the Clerk's transmittal cover sheet and certificate of service later that
same day. As indicated above, notwithstanding the certificate of service, I had not
received a copy of the July 30, 2012 prior to Mr. Rinaldo's December 4, 2012 email.
3. In the addition, by means of an email to myself from Mr. Otto on August 2,
2012, 1 received a copy of a letter dated July 31, 2012 from Mr. George Hadley to Mr,
Otto pertaining to Mr. Hadley's conclusions as to stock ownership of D-E Distribution
Corporation. The July 31, 2012 letter had attached to it what appears to be a one page
excerpt of another letter or other document identifying, apparently as of September 8,
1994, the shareholders of D-E Distribution Corporation and G-A-T Distribution
Corporation, and containing certain handwritten annotations (the authorship of which is
not identified). Mr. Otto's August 2, 2012 email and its attachment are attached hereto
as Exhibit B.
4. Mr. Otto's email makes neither comment upon nor requests information or
makes any other inquiry with respect to life insurance purportedly owned by or through
D-E Corporation.
5. Also during the December 4, 2012 conference call, Mr. Buckley had
inquired whether the cash values of the life insurance policies were adequate for the
needs of estate or trust administration and whether such amounts had been distributed.
Mr. Otto replied that he had been awaiting ward from me regarding Mr. Mumma's
position on the matter,
6. By way of background, prior to, during and subsequent to oral argument
before Auditor Buckley on July 26, 2012 on the Executrix' petitions seeking
authorization to liquidate certain real property and other assets, Mr. Rinaldo requested
on behalf of his client Barbara "Gabs" Mumma copies of life insurance policies or other
documents from the carrier(s) relating to various individuals (including Babs Mumma
and Robert Mumma) purportedly owned by D-E Distribution Corporation. On behalf of
Robert Mumma, 11, 1 joined in the request and asked for the actual policies. Mr. Hadley's
July 31, 2012 letter summarizes his understanding of certain insurance information but
was not fully responsive to the request for policies. At no time, including up to the
present, had I received copies of any such policies; nor to my knowledge, had Mr.
Rinaldo received copies of any such policies.
7. At the July 26, 2012 argument before Auditor Buckley on the
Executrix/Trustee's liquidation motions I expressed that the requested information as to
proof of ownership and other policy information relevant to the purposes of life
insurance purportedly owned by D-E Distribution Corporation was, at that point in time,
insufficient to assert a position as to the policies' disposition and anticipated that full
insurance-related information would be received before final action on that matter.
Jeffrey Brooks
STATE OF PENNSYLVANIA )
SS
COUNTY OF ALLEGHENY )
On /' / a3 2013, before me the undersigned officer, appeared
Jeffrey G. Brooks, personally known to me (or satisfactorily proven) to be the person
whose name is subscribed to the within instrument.
In Witness Whereof, I hereunto set my hand and official seal.
Notary Public
My Commission Expires:
COMMONWEALTH OF PENNSYLVANIA
Noteriel saw
Brian J.KaNO,Nobly Pubse
Ctly Of rKadaon,AftWW Cow
My C&M""W Expires Aug.31,2019
Member,PennsYlvanta Assodatim of Notaries
Jeffrey G. Brooks
From: No V. Otto III [iotto @martsonlaw.com]
Sent: Thursday, August 02, 2012 10:50 AM
To: Richard F. Rinaldo, 'jbrooks @mintolaw,com'
Cc: bgreen @morganlewis.com, Lisa Mumma Morgan (Imorganesq @aol.com)
Subject: RE: D-E information
Attachments: 5844.22.Hadley.7.31.12.D-E.5 hareholders.pdf
Gentlemen:
Mr. Hadley's information on the above is attached.
No V. Otto III
Mattson Law Offices
Ten East High Street
Carlisle, PA 17013
Telephone (717) 243-3341
Facsimile (717) 243-1850
Electronic Mail iotto @martsonlaw.com
www.martsonlaw.com
CONFIDENTIALITY NOTICE:The above communication is for the personal use of the intended recipient(s) only.
This message may be an attorney-client communication and as such privileged and confidential. If you are not
an intended recipient,you may not review, preserve, copy or distribute this message. Unauthorized use,
disclosure or distribution is prohibited and may be unlawful. If you are not an intended recipient, or if you
believe that you have received it in error, please reply to the sender that you have received the message in
error,then delete it.Thank you.
1
HADLEY & ASSOCIATES
CERTIFIED PUBLIC ACCOUNTANTS
241 MAIN STREET
BUFFALO. NEW YORK 14209
TELEPHONE 716-852-2200
FACSIMILE 718-652-6046
E-MAIL into 9NBdley-cpe.com
July 31, 2012
VIA E-Mail and Rea. Mail
No Otto 111,Esq.
Manson Deardorff Williams Otto
Gilroy&Faller
10 East High Street
Carlisle,Pennsylvania 17013
Re: D-E Distribution Corporation
Dear Ivo:
We have reviewed the Auditor's Interim Report dated July 30,2012, along with
part of the transcript of court proceedings that you provided in your e-mail to me on July 31,
2012.
As you are aware,D-E Distribution Corporation came into being as a result of a
Plan of Division of Nine Ninety Nine, Inc. in the early 1990's. Attached is a listing of
shareholders, which was provided to us at that time. That particular listing does not show Robert
M.Mumma 11 as a shareholder, but it is my understanding that he eventually signed a"Consent
and Joinder"and with the signing of that document,became the owner of 140.30015 shares of
D-E Distribution Corporation. There would then be 1,000 shares of common stock outstanding.
We have prepared financial statements, tax returns, and assisted in payment of dividends based
on the aforementioned information,which we believe to be true and correct.
We have previously provided you with information regarding various life insurance
policies owned by D-E Distribution Corporation. The owner proposes to terminate the insurance
policies and obtain a cash settlement payment from the various insurance companies. We
believe it will be necessary to contact the various insurance companies and have them provide
you with, not only a termination cost, if any as outlined in the court order,but a calculation of the
taxable income attributable to D-E Distribution Corporation as a result of"cashing in the
policies"
No Otto III, Esq.
Page 2
July 31, 2012
It would be my suggestion that D-E Distribution Corporation would be entitled to
retain enough of the cash proceeds to pay any applicable Federal and Pennsylvania corporate
taxes due as a result of this transaction.
If you require further information,please advise.
Very truly yours,
HADLEY& ASSOCIATES
GWH:cs Sy
Enclosure eorge W adley
cc: Mrs.Lisa M. Morgan
Brady Green,Esq.
George W. Hadley, Jr. , C.P.A.
September 8, 1994
Page 2
Tho current officers and directors of G A-T
Distribution Corporation are as follows:
i
Directors
Barbara McK. Mumma
i
Lisa Mumma Morgan
Linda Roth j
i
Officgra
Barbara McK. Mumma, President and Treasurer
Lisa Mumma Morgan, vice President Bind Secretary
With respect to the shareholders of eac1 of the above-
referenced corporations, I have the following infprmation
(subject to the qualirication contained in the nett paragraph) :
I
D-E Distribution Corporation
Marital Trust - 271.9265 shares of cordon stock
Barbara McK. Mumma - 169.3056 shares of com�on stock :9. &5
i
Lisa Mumma Morgan - 139.48925 shares of coatmon stock x.zr
Linda Roth - 139.48925 shares of c0lmon stock
I
Barbara M. McClure - 139.48925 shares of co:hmon stock
G-A-T Distribution corpor to ien9' ("nas
Marital Trust - 797.448 shares of common stock
I
Barbara McK. Mumma - 183 .412 shares of co=6 stock
Lisa Mumma Morgan - 4.785 shares of common stock
Linda Roth - 4.785 shares of common stock
Barbara M. McClure - 4.785 shares of commonistoek
I � ,
FOEHL&EYRE,P.C.
Robert B. Eyre,Esquire
27 East Front Street
Media, PA 19063
ID No.41990
610-566-5926
In the Court of Common Pleas of
IN RE: Cumberland County, Pennsylvania
Estate of Robert M. Mumma,Deceased
No. 21-86-398
Orphans' Court Division
CERTIFICATION OF PETITIONER ROBERT M.MUMMA,II IN SUPPORT OF
PETITION TO SUPPLEMENT RECORD AND/OR FOR RECONSIDERATION
OF PETITION TO EXTEND DISCOVERY DEADLINE
I. I am the Petitioner on the Petition to Supplement Record and/or for
Reconsideration of Petition to Extend Discovery Deadline(the"Petition to Supplement
Record"),and submit this certification in support of such Petition.
2. On May 24,2013, I appeared in the Office of the Register of Wills in the
Cumberland County Courthouse to file a Brief in support of my prior(January 28,2013)
Petition to Compel Compliance with Court's Order dated July 30,2012 and for Sanctions
and Alternatively,to Vacate Said Order("Petition to Compel")and accompanying
Affidavit of Jeffrey Brooks,Esquire("Brooks Affidavit"),with the Clerk of the Orphans'
Court.
3. I presented the Brief and Brook's Affidavit to the woman who was
stalling the Clerk's desk in that office and told her I wanted them filed. She responded
that such papers do not get filed with the Clerk but must be filed with Court
Administration,which is in the same building.
4. In accordance with the instructions of the Clerk's Office,I went
immediately to Court Administration and presented the Brief,with the Brooks Affidavit
attached as an exhibit,for filing.
S. Court Administration accepted the papers.
6. On May 31,2013,Robert Eyre,Esquire,entered an appearance as my
counsel in this matter,and argued the Petition to Compel. I had filed the Petition to
Compel and Brief and Brooks Affidavit, pro se.
7. At the May 31,2013 argument of the Petition to Compel,it was suggested
by the Court and counsel for Respondent Lisa Morgan that the Brooks Affidavit may not
be part of the record.
8. It was my intention to file the Brooks Affidavit with the Clerk of the
Orphans' Court and have it admitted as part of the record in support of the Petition to
Compel. I did not understand that filing these papers with Court Administration as
opposed to the Clerk might affect their admission as part of the record in this matter and
only filed them with Court Administration because I was told by the Clerk to do so.
I,Robert M.Mumma,II,verify that forgoing facts are true and correct to the best
of my knowledge,information and belief. I understand that false statements herein are
made subject to the penalties of 18 Pa. Cons, Stat. Ann. Sec. 4904,relating to unswom
falsification to authorities. ) .�-
Date; S 3 �jc�t • � �.A s-�k.o.v
Robert M.Mumma,II
CERTIFICATE OF SERVICE
I, Robert B. Eyre, Esquire, hereby certify that a copy of the foregoing Petition to
Supplement Record and/or for Reconsideration of Petition to Extend Discovery Deadline
was served on this date, to the following, as indicated below:
Jeffrey G. Brooks, Esquire Richard F. Rinaldo, Esquire
Minto Law Group, LLC Williams Coulson Johnson Lloyd
Two Gateway Center Parker& Tedesco, LLC
603 Stanwix Street,, Suite 2025 One Gateway Center, 16'h Floor
Pittsburgh, PA 15222 Pittsburgh, PA 15222
brooks mintolaw.com rr nal&4 williamscoulson corn
Ms. Linda M. Mumma Joseph D. Buckley, Esquire
P.O. Box 30436 1237 Holly Pike
Bethesda, Maryland 20824 Carlisle, PA 17013
Lmann333(t� mail.com
No V. Otto,, III, Esquire Brady Green,Esquire
Martson Law Offices Morgan Lewis & Bockius
10 East High Street 17 N. Second Street, 14s'Floor
Carlisle, PA 17013 Harrisburg, PA 17101
io tto martsonlaw,com bgreen maul scam
XRob B. Eyre, Esquire DATE:�