HomeMy WebLinkAbout07-14-05
INDEX TO WITNESSES
FOR ROBERT M. MUMMA
DIRECT CROSS REDIRECT RECROSS
Taylor P. Andrews, Esq. 18
Daryl Edwin Christopher 47
INDEX TO EXHIBITS
COURT EXHIBIT MARKED ADMITTED
1 - 5/17/02 Decree Nisi and
Adjudication/Opinion 8 8
2 - 7/29/02 Final Decree 8 8
3 -2/1/05 letter 25 25
2
1 Ilarch 11, 2005
2 (~rlisle, Pennsylvania
3 (The following order was dictated in the chambers
4 of J. Wesley Oler, Jr., J.)
5 THE COURT: We will enter this order: And now,
6 this 11th day of March, 2005, upon consideration of the
7 Petition for Leave To Withdraw filed by Daryl E. Christopher,
8 Esquire, and Kirk S. Sohonoage, Esquire, and following a
9 conference in chambers in which Ivo V. Otto, III, Esquire,
10 Brady L. Green, Esquire, and Michael J. Riffitts, Esquire,
11 represented Barbara McKimmie Mumma and Lisa Mumma Morgan,
12 executrixes and trustees under the will of Robert M. Mumma,
13 Kirk S. Sohonage, Esquire, and Daryl E. Christopher, Esquire,
14 represented Robert M. Mumma, II, and Ralph A. Jacobs, Esquire,
15 represented Barbara Mann Mumma, a beneficiary under the will
16 herein, and pursuant to an agreement of counsel and with the
17 consent and insistence of Robert M. Mumma, II, as indicated by
18 his Certificate of Concurrence attached to the said petition,
19 and by his indication to his counsel on today's date, the
20 Petition for Leave To Withdraw is granted and Daryl E.
21 Christopher, Esquire, and Kirk S. Sohonage, Esquire, are
22 excused from further participation in this case.
23 Robert M. Mumma, II, will hereafter be appearing
24 pro se.
25 Is that order satisfactory to all counsel?
3
1 (All replied affirmatively.)
2 THE COURT: Thank you.
3 (Recess. )
4 THE COURT: We will let the record indicate that
5 the Court is in session in the matter oj the estate of Robert
6 M. Mumma at No. 21-86-398 Orphan's Court. The Court met in
7 chambers with counsel immediately prior to this hearing on the
8 issue of the withdrawal of the attorneys of record for Robert
9 M. Mumma, II, namely Kirk S. Sohonage, Esquire, and Daryl E.
10 Christopher, Esquire. Since they had filed this motion which
11 is the subject of the present hearing, namely Motion To
12 Recuse/Remove Attorney Taylor P. Andrews and To Appoint a New
13 Auditor, I had asked if they would be willing to proceed at
14 least through this hearing with the understanding that they
15 would be excused if there were no objection at the conclusion
16 of the hearing from further participation in the case. They
17 indicated they were willing to do so but after consults with
18 Robert M. Mumma, II, they advised that Mr. Mumma was not
19 willing to permit them to do so, for that reason and without
20 objection by the other counsel, I have entered an order
21 excusing Mr. Sohonage and Mr. Christopher from further
22 participation in the case and allowing Mr. Mumma to represent
23 himself. Mr. Mumma, do you want to proceed with your motion?
24 MR. MUMMA: Your Honor, I would like to address
25 something that -- I don't want to do this in the wrong fashion.
4
1 This has taken 19 years to get to this point since my father
2 died and this is like the first step, the beginning of his
3 estate 19 years later. I have been in here several times
4 asking for some relief in all of this. We had a case in front
5 of Your Honor regarding pennsy Supply, which is one company
6 that this estate managed, and in your opinion in that case you
7 stated that for me to be correct, if you found that I was
8 correct, you would have to unwind that transaction.
9 It was clear from the opinion you weren't willing
10 to unwind that transaction. Here we have 19 years of
11 transactions with hundreds of parties, and I question whether I
12 am going to get a fair shake if the attitude is we are not
13 going to unwind any of them, because if they were my assets
14 that somebody converted and sold to somebody else when I had a
15 right to those, and the attitude is we are not going to change
16 any of that, then I don't think we are starting off on the
17 right foot here. I think it is prejudiced to begin with.
18 THE COURT: Are you asking me to do something?
19 MR. MUMMA: To recuse yourself.
20 THE COURT: Do other counsel have a position on
21 that? Mr. Green?
22 MR. GREEN: Your Honor, on behalf of Mrs. Mumma and
23 Mrs. Morgan, we certainly would oppose such a motion and we see
24 no grounds based on anything Mr. Mumma has just stated or any
25 observations that we have had of the Court to believe that such
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a motion is appropriate in this case.
THE COURT: Mr. Jacobs.
MR. JACOBS: Your Honor, I have absolutely no basis
to say anything -- my position is that I oppose the motion.
THE COURT: All right, Mr. Mumma, was the opinion
that you are referring to entered in this case, in other words,
does it have this docket number so that it is on the record?
MR. MUMMA: No, it was not in this case, Your
Honor, it was in the case that we brought here back in 2000,
Mr. Green was a witness in that case regarding what
THE COURT: I am just trying to make a record so
that you have a basis for your motion and for any appellate
review of it. Do you have a copy of the opinion that was
entered in the other case?
MR. MUMMA:
I do not with me, I can provide one to
you.
THE COURT: I think we should try to make the
record now so that I can rule on the motion. We will take a
five minute recess so you can get a copy of that opinion that I
entered, my recollection is it was affirmed on appeal, but I
may be wrong on that.
In any event, if we can get a copy of
that, we will make it part of the record so that you have
something in the record to support your motion and something
that an appellate court can look at to review.
MR. MUMMA: Okay, thank you.
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THE COURT: We will tdke a short recess.
2 (Recess.)
3 THE COURT: We will let the record indicate that
4 the court has reconvened in the case of the estate of Robert M.
5 Mumma at No. 21-86-398 Orphans' Court.
6 At this hearing on the Motion To Recuse/Remove
7 Attorney P. Andrews and To Appoint a New AUditor, I may have
8 neglected to report as to who was present on whose behalf. Ivo
9 V. Otto, III, Esquire, Brady L. Green, Esquire, and Michael J.
10 Riffitts, Esquire, are present on behalf of Barbara McKimmie
11 Mumma and Lisa M. Morgan, executrixes and trustees under the
12 will of Robert M. Mumma; Ralph A. Jacobs, Esquire, is present
13 on behalf of Barbara Mann Mumma, beneficiary; and Robert M.
14 Mumma, II is present representing himself.
15 Mr. Mumma has located several documents that I
16 think you probably will want to have part of the record with
17 respect to your motion that the Court recuse itself. One
18 document is an opinion and final decree dated July 29, 2002, in
19 the case of Robert M. Mumma, II versus Pennsy Supply, Inc., at
20 No. 99-2765 Equity Term.
21 Related to that and also contained in the paperwork
22 that I have is a Memorandum Opinion filed by the Pennsylvania
23 Superior Court on July 8, 2003, at No. 1352 MDA 2002, in that
24 case affirming the Court's decree; and also included in this
25 paperwork is a denial of a Petition for Allowance of Appeal in
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1 that case by the Pennsylvania Surreme Court at No. 770 MAL
2 2003.
3 Another item which I Ilave here is this Court's
4 Adjudication and Decree Nisi dated May 17, 2002, in the same
5 case. If there is no objection by Mr. Mumma or by other
6 counsel, I will have these items marked as Court's exhibits for
7 purposes of Mr. Mumma's motion that the Court recuse itself.
8 Mr. Mumma and Mr. Green, Mr. Otto, Mr. Riffitts,
9 Mr. Jacobs, is there any objection?
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16 and Adjudication/Opinion dated May 17, 2002, marked as Court's
17 Exhibit l.
18 (Court's Exhibit No.1 marked for identification.)
19 THE COURT: Court's Exhibit 1 is admitted. We will
20 have the Final Decree and Opinion accompanying that order, both
21 of which are dated July 29, 2002, marked as Court's Exhibit 2.
22 (Court's Exhibit No.2 marked for identification.)
23 THE COURT: Court's Exhibit 2 is admitted, and I
24 would note that Court's Exhibit 2 contains the Superior Court's
25 Memorandum Opinion, as well as the order denying allocatur.
MR. GREEN: No objection.
MR. JACOBS: No objection
MR. MUMMA: No, Your Honor.
THE COURT: Mr. Jacobs.
MR. JACOBS: No objection.
THE COURT: All right, we will have the Decree Nisi
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Mr. Mumma, was there anything further you wanted to
put on the record in support of your motion at this time?
MR. MUMMA: No, sir.
THE COURT: Did any counsel wish to place anything
else on the record?
MR. GREEN: No, Your Honor.
THE COURT: We will enter this order, AND NOW, this
11th day of March, 2005, the oral motion of Robert M. Mumma,
II, that this Court recuse itself from hearing a Motion To
Recuse/Remove Attorney Taylor P. Andrews and to appoint a new
auditor, is denied.
Mr. Mumma, are you prepared now to proceed with the
hearing on that motion?
MR. MUMMA: Your Honor, yes, I am.
THE COURT: All right, did you want to call a
witness?
MR. MUMMA:
think need to be --
THE COURT: Other issues?
MR. MUMMA: Other issues that need to be resolved,
I have a couple other issues that I
one of which is that if -- we have an outstanding motion to
remove the executrixes, which means if we do that, there will
be a different party here going forward, so I think that needs
be addressed first.
THE COURT: When did you file that motion?
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MR. MUMMA: That motion was filed -- on 11/21/03
there was a motion for a hearing on a petition for removal.
THE COURT: What happened to that --
MR. MUMMA: It was postponed until they filed the
final accounting, they filed the final accounting now, and I
think it is time to address that issue. This was not the first
time this issue was raised, it has been raised since 1989 and
there has never been a hearing on that.
THE COURT: Mr. Green.
MR. GREEN: Your Honor, there was, in fact, such a
motion, actually, a number of such motions filed.
I do not
recall the date as we sit here, but sometime last April we
appeared, Mr. Ivo, myself and Mr. Mumma's former counsel,
before Judge Hoffer. We discussed that motion and its
relationship to the filing of our accounts and objections and
there was an agreement by all that the issues raised in the
motion to remove would be deferred and, in fact, rolled into
the proceedings on the accounts and the objections thereto.
The deadline was set for Mr. Mumma to file his
accounts and to file his other evidence and documents, and the
next step essentially was that we requested appointment of an
auditor to hear whatever matters were appropriate for the
auditor to hear.
THE COURT: When you say for Mr. Mumma to file his
accounts, what accounts were those?
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MR. GREEN: His objections to the accounts.
THE COURT: His objections to the accounts, I see.
MR. GREEN: If I misspoke, I am sorry.
THE COURT: Mr. Jacobs, did you have a position on
this request by Mr. Mumma?
MR. JACOBS: I apologize for my lack of background
in the case, but it certainly makes sense if it is to roll the
issue of removing the executrixes into the issue of reviewing
the objections to the accounts, that makes sense to me, as
opposed to ruling on it now.
THE COURT: All right.
Is this item in front of
the auditor? Has it been made part of the auditor's
responsibilities? Mr. Green?
MR. GREEN: I don't recall. All that we have seen
in terms of what will be before the auditor in a formal sense,
we basically asked that an auditor be appointed to rule on the
accounts and objections of any other matters necessary to
obtain approval for actions to date, so I would say that that
could fairly be read to encompass Mr. Mumma's allegations.
I do not recall to what extent that is spelled out
in Mr. Mumma's letter to the auditor at the auditor's request
detailing those matters which he thought were appropriate for
adjudication.
THE COURT: All right, Mr. Mumma, do you have any
25 more argument on this point?
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1 MR. MUMMA: Sure, Your Honor, they claim that Mr.
2 Bogar agreed to that and that I agreed to it. I wasn't aware
3 that Judge Hoffer issued that order until sometime months
4 afterwards. At that point in time, in April of 2004, Mr. Bogar
5 didn't represent me any more. He may have still been in the
6 case, but he was not working on my behalf.
7 THE COURT: Your former counsel was James Bogar,
8 Esquire, is that correct?
9 MR. MUMMA: Chadwick o. Bogar.
10 THE COURT: I see.
11 MR. MUMMA: He has filed several motions to get out
12 of this case, claiming that he represented me directly. I
13 hired the law firm, Miller and Lipsitt to represent me, so I
14 would not have agreed to a procedure. The purpose of removing
15 them is they are converting assets that belong to me on a
16 regular basis and it goes to this 19 year history of them doing
17 it. And I am being told, well, we are not going to deal with
18 what they have done over the last 19 years because it would
19 cause so much destruction to other people, and that is not
20 fair, they shouldn't be allowed to continue, and I think that
21 issue needs to be heard first.
22 THE COURT: You are still pursuing the removal of
23 Barbara McKimmie Mumma and Lisa Mumma Morgan as executrixes?
24 MR. MUMMA: Yes, sir.
25 THE COURT: All right, we will enter this order,
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AND NOW, this 11th day of March, 2005, to the extent that it is
preserved of record in this case, the issue of the requested
removal of Barbara McKimmie Mumma and Lisa Mumma Morgan as
executrixes and/or trustees under the will of Robert M. Mumma
as allegedly raised by prior counsel for Robert M. Mumma, II,
is relegated to disposition in the first instance by the
auditor, along with the auditor's other responsibilities in the
case.
Mr. Mumma, is there anything further that you
wanted to raise before we start this hearing?
MR. MUMMA: Yes, sir. There has never been a
hearing on our motion to bypass the auditor.
THE COURT: Sorry. I was looking at a note. Go
ahead. I have a note from a Judge Hoover who wants to know if
this hearing will be finished by noon or before because he has
a conference with all of the parties or attorneys at noon.
Does that make any sense?
MR. MUMMA:
It makes sense to me, Your Honor. Yes,
sir, he scheduled a hearing in Dauphin County at the same time.
I asked him to continue it, he refused to do it, so I guess he
is verifying that I am here.
THE COURT: What is that case about, what is that
on?
MR. MUMMA: That is on a real estate matter,
separate from any of this.
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1 THE COURT: I see, but are all these other
2 attorneys involved in that?
3 MR. MUMMA: No, just me.
4 THE COURT: Only you?
5 MR. MUMMA: Yes.
6 THE COURT: I see. Are we going to be finished by
7 noon? It is 10:30 now.
8 MR. MUMMA: I don't see any way we are going to be
9 finished for me to be in Dauphin County courthouse.
10 THE COURT: Not at this rate, but we will see. Off
11 the record for a moment.
12 (Recess.)
13 THE COURT: Do you have anything further
14 preliminarily, Mr. Mumma?
15 MR. MUMMA: Yes, sir, in 1991, we filed a motion to
16 bypass the auditor, the appointment of an auditor, and that has
17 not been heard, and I think that motion should be dispensed
18 with before Mr. Andrews is even appointed.
19 THE COURT: You filed a motion to bypass the
20 appointment of an auditor in what year?
21 MR. MUMMA: 1991.
22 THE COURT: These objections have just been filed
23 more recently than that, have they not?
24 MR. GREEN: Your Honor, I have a dim recollection
25 that such a motion was filed, I don't recall, frankly, what
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disposition was had on the motion. My recollection is there
may have been interim accounts filed prior to that time, but
there have been several, one or two additional rounds of
interim accounts, plus the final account on the estate filed
more recent.
THE COURT: Mr. Jacobs, do you have a position on
this request?
MR. JACOBS:
THE COURT:
No position on that.
We will enter this order:
And now,
this 11th day of March 2005, to the extent that a motion filed
by or on behalf of Robert M. Mumma, II, to bypass the
appointment of an auditor in December of 1991 remains viable
and outstanding, the motion is denied.
Anything further, Mr. Mumma, or any other party
before we start?
MR. MUMMA: Yes, sir, we believe that we are
entitled to have discovery before there is an audit done. We
believe that no auditor can properly decide what is going on
unless they review all of the records and documents that this
estate has generated.
THE COURT: Have you made a motion for discovery?
MR. MUMMA: Yes, in fact, I think we announced a
motion to compel, we have announced
THE COURT: That is not really the issue before me
today.
I assume that a rule to show cause has been issued or
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something of that sort on that motion?
MR. MUMMA: There was.
THE COURT: Where does it stand now?
MR. MUMMA: Nowhere.
THE COURT: Somebody has to request a hearing if
there has been an answer filed, or if there has been no answer
filed, you would file a motion to make the rule absolute.
MR. MUMMA: I think they have taken the position
that the auditor is going to make these decisions.
THE COURT: That may be, I don't know, but we will
deal with that at another time.
MR. GREEN: For the record, the Court scheduled a
discovery on Mr. Mumma's motion to compel I believe for April 5
or April 4 at 3:00 p.m. and it will, in fact, be our position
that the auditor ought to determine the appropriate discovery
within the contexts of the objections, but I believe the
hearing is set and remains on for that date.
THE COURT: Who set it, did I?
MR. GREEN: Yes, Your Honor.
THE COURT: So that is being handled through a
discovery conference?
MR. MUMMA: The problem, Your Honor, is I think
there is a 90 day time limit for the auditor to have a report.
THE COURT: We are not getting any closer the way
we are going.
If you need an extension of time, then you would
16
1 file a motion for an extension. We really need to get on with
2 this hearing. Mr. Mumma, do you want to call a witness?
3 MR. MUMMA: Your Honor, I have a couple other
4 issues here that I would like to address.
5 THE COURT: All right, go ahead.
6 MR. MUMMA: In their motion they requested that the
7 parties select the auditor and we concur with that because we
8 believe that that is a better way of getting a neutral party.
9 THE COURT: I already appointed Mr. Andrews, so
10 events have overtaken that request.
11 MR. MUMMA: There is no clear indication of what
12 Mr. Andrews' duties or powers are in this matter, and I think
13 that needs to be spelled out.
14 THE COURT: I think there were objections filed to
15 an accountant, Mr. Andrews was appointed to deal with the
16 objections and I have now to the extent that your earlier
17 motion to replace the executrixes and trustees is still viable,
18 I have included that in his powers. The objection, whatever
19 was filed, speaks for itself.
20 MR. MUMMA: Who is paying for Mr. Andrews, Your
21 Honor?
22 THE COURT: That is going to be determined as part
23 of his recommendations and order of Court. It is premature to
24 determine that at this point. Would you call your first
25 witness, please.
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MR. MUMMA: I call Taylor Andrews.
THE COURT: Okay.
TAYLOR P. ANDREWS,
havinq been du1y sworn, testified as fo11ows:
DIRECT EXAMINATION
BY MR. MUMMA:
Q Would you state your name for the record?
A Taylor P. Andrews.
Q Mr. Andrews, would you state your education and
background?
A Yes, my undergraduate degree is from Bucknell
University, I graduated in 1968 with a Bachelor of Science in
Business Administration, I then attend law school, graduated
from the Dickinson School of Law, now the Dickinson School of
Law of the Penn State University, in 1972.
Q Do you have any other degrees?
A No other degrees.
Q Have you taken accounting courses?
A Certainly I did as a business administration major,
I took a lot of accounting, correct.
I did take accounting
courses in my undergraduate course work.
Q Have you done any other accounting work since then?
A Yes.
Q What kind of accounting work have you done?
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A I have been counsel to many estates and done the
estate accountings in estates. I have been treasurer of many
organizations and done the accounting and book work necessary
for -- to serve in this capacity. Personal finances I do the
accounting for. One of my favorite programs happens to be
Microsoft Excel, and I do a lot of bookkeeping with that
program.
Q Would you consider yourself a forensic accountant?
A I don't consider myself an accountant at all, and
certainly not a forensic accountant.
Q Are you familiar with the IRS code?
A I know that there is an IRS code.
Q Are you familiar with the various parts of it?
A As I fill out my taxes or my clients' taxes, yes,
but I am not a tax attorney, no.
I know how to research in the
tax code.
I have had occasion to do that for clients, but it
is -- I am not a tax attorney.
Q Would you consider yourself able to determine what
the tax consequences of certain actions by the executrixes
would have been or should have been?
A In my capacity as auditor, I certainly think I
could with the assistance of counselor the parties in
supplying to me the authorities that they thought applied, I
can certainly review those authorities and make a determination
as to what authority did apply.
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Q But you don't consider yourself capable of looking
at tax returns and then going back and determining whether they
were properly prepared?
A That is not something I don't even believe I would
be asked to do.
Q You don't think you would be asked to review the
tax returns filed for the estate?
A I believe I would -- I can understand objections to
a tax return, the basis for objections, I can understand that,
the rational and support of a particular tax return. I would
expect those positions to be supported by legal authority. I
know I can read the legal authority and apply it to the facts
at hand, it is what we do as lawyers.
Q Had you ever been appointed an auditor before?
A Once.
Q When was that?
A It was in 2004.
Q That was your first appointment?
A It was.
Q Have you completed that audit?
A That matter was resolved by agreement.
Q Did you attempt to resolve it? Was that your
preference to resolve it by agreement?
A I think I helped facilitate the resolution.
Q Do you know what a continuing criminal conspiracy
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is?
A I can't give you a specific definition from a Reco
statute, for instance, but I certainly know what a criminal
conspiracy is, I know what acts are that are continuing.
Q If you came across a continuing criminal conspiracy
in this matter, what would you do?
A I will review the positions that are presented to
me, the facts that are presented that may be in conflict, to
make decisions of what my recommendation of findings of fact
are. I will review the legal positions that are presented to
me and it would depend upon what those facts are and what the
law is that applies.
Q If you determine that some stock certificates had
been
THE COURT: We are getting into the merits of the
case. You are asking Mr. Andrews to hypothetically say how he
would decide the case, and I am not going to permit that.
MR. MUMMA: Your Honor, I am not asking what his
decision is, I am asking --
THE COURT: You are getting into areas that just
are not proper for this hearing.
BY MR. MUMMA:
Q Do you know who Sam Andes is?
A Sure.
Q Do you see Mr. Andes on a regular basis?
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A It depends what you mean by regular. Right now,
Mr. Andes is president of the Cumberland County Bar
Association, I am vice president of the Cumberland County Bar
Association. I see him at monthly Bar Association meetings.
Mr. Andes is married to my first cousin. I see him at family
gatherings I would estimate twice a year.
Q You have a close relationship?
A I would consider Sam Andes as a friend, he is, as I
said, married to my first cousin.
Q Do you have a close relationship with him?
A Well, that is a relative term. I regard him as a
friend.
Q Are you aware that Mr. Andes has a significant role
in some of the assets of this estate?
A I saw in the petition that was filed on your behalf
that Mr. Andes was involved in the settlement of a transaction
in the long history of this estate and a suggestion that my
relationship with Mr. Andes made me partial in this matter, but
it was not indicated there in any fashion what his role was.
Q Well, if you determined that Mr. Andes did
something illegal in transferring interests that I had in this
estate, would you pursue that?
MR. GREEN: Your Honor, I would object to this
questioning. First of all, this pertains to whether Mr.
Andrews is an appropriate auditor for the estate of Robert M.
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1 Mumma. Mr. Andes is not a party to this, nor is the purpose of
2 the proceeding which Mr. Andrews would conduct to assess Mr.
3 Andes' conduct in some business transaction.
4 THE COURT: Mr. Jacobs, do you have a position on
5 that obj ection?
6 MR. JACOBS: No position, Your Honor.
7 THE COURT: All right. Mr. Mumma, does Mr. Andes'
8 transaction with you have anything to do with this case, the
9 estate?
10 MR. MUMMA: Yes, sir.
11 THE COURT: What does it have to do with it?
12 MR. MUMMA: My father, the Kim Company, which was a
13 corporation that I had an interest in, my sisters each had an
14 interest in, and Pennsylvania Supply Company had an interest
15 in, owned the Union Quarries operation in Bonnie Brook, on
16 Bonnie Brook Road. Mr. Andes was appointed as a trustee for
17 the stock certificates that were owned by Kim Company. My
18 father was the president of Kim Company, I was the vice
19 president, my sister, Babs, was the secretary.
20 THE COURT: Babs being?
21 MR. MUMMA: Barbara, Mr. Jacob's client.
22 THE COURT: All right.
23 MR. MUMMA: There was a liquidation of Kim Company
24 and Mr. Andes as trustee did not return the stock to Kim
25 Company and follow the plan of liquidation, he bypassed Kim
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Company and Pennsylvania Supply Company and returned stock
directly to the estate where it was improperly distributed and
that was he did that knowingly and he did it while he was
acting as a fiduciary for Kim Company and I think that is a
large issue in this matter.
THE COURT: This is one of the objections to the
account that was filed?
MR. MUMMA: Yes.
THE COURT: All right. Mr. Green, do you have a
further response?
MR. GREEN:
I still sort of fail to see how Mr.
Andes' conduct is relevant here, I am not sure that this matter
is raised -- it is certainly not raised in the letter
summarizing what issues Mr. Mumma and his counsel intended to
put before Mr. Andrews, but in any event, the entire thing
sounds irrelevant and a detour to the assessment of Mr.
Andrews' qualifications.
THE COURT: You say there is a letter of some sort
that outlines what the issues are?
MR. GREEN: Mr. Andrews solicited prior to the
filing of this motion letters from both parties or both sides
so to speak, with respect to what they envisioned to be the
salient issues in the proceedings, the only place in that
letter that Union Quarries appears is in Mr. Mumma's assertion
that Mr. Andes' involvement in it is a basis for Mr. Andrews'
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disqualification. It doesn't mention Union Quarries among the
list of substantiative items to be addressed in the proceeding.
THE COURT: Okay, and you have a copy of that
letter?
MR. GREEN:
I don't know that I have a spare copy,
but the letter -- Mr. Mumma's counsel's letter was dated
February 1, and if need be we will mark our copy of the letter.
THE COURT: Mr. Andrews, does your file contain a
copy of that letter?
A I have the original, Your Honor.
THE COURT:
Does anybody have any objection to my
marking that as Court's Exhibit 3?
MR. MUMMA: No.
MR. GREEN: No, Your Honor.
MR. JACOBS: No objection.
THE COURT: Mr. Andrews has the original. Do you
have any objection to this being marked as Court's Exhibit 3?
MR. GREEN: None at all, Your Honor.
THE COURT: All right, we will take a moment and
have that marked.
(Court's Exhibit No.3 marked for identification.)
THE COURT: Is there any objection to the admission
of Court's Exhibit 3, which is a letter dated February 1, 2005,
to Mr. Andrews? If not, Court's Exhibit 3 is admitted.
Mr. Mumma, did you want to look for a moment at
25
1 this letter to see whether there is any reference to Mr. Andes'
2 conduct?
3 MR. MUMMA: Your Honor, there are two general
4 statements in here that would relate to this one. The first
5 one refers to all billing records and internal memorandum of
6 Morgan, Lewis & Bockius and Stradley, Ronon, Stevens & Young
7 should be examined to determine if they were complicit or
8 actively involved in attempts to favor one beneficiary or a
9 group of beneficiaries over others and to determine their
10 involvement in the squeeze out of Robert M. Mumma, II.
11 These firms failed to protect the interests of all
12 beneficiaries equally, compensation to them should be denied
13 for breach of their fiduciary duties.
14 The second is an investigation should be made into
15 who the officers, directors, and employees of Mumma owned
16 entities are and have been over the past 18 years to determine
17 if the executrixes have been improperly profiting from their
18 positions as executrixes and trustees to the detriment of the
19 beneficiaries.
20 THE COURT: All right. Mr. Jacobs, do you have a
21 position on this objection if I didn't already ask you?
22 MR. JACOBS: No position, Your Honor.
23 THE COURT: All right. Mr. Mumma, you may ask the
24 question. Do you need the stenographer to repeat it for you?
25 (QUESTION READ BACK BY STENOGRAPHER: QUESTION:
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Well, if you determined that Mr. Andes did something illegal in
transferring interests that I had in this estate would you
pursue that?)
A I guess what I respond to in your question is this
notion of pursuing it.
I don't envision my role as an auditor
to be a policeman.
I do envision my job as auditor to analyze
the legal consequences of people's actions as it pertains to
the estate and property. The fact that any of the actors,
maybe Mr. Mumma or Mr. Andes or anybody else would not effect
my findings of fact and my application of the law to the facts
that I find.
BY MR. MUMMA:
Q Well, if it is determined that Mr. Andes improperly
transferred this stock to the detriment of the other
beneficiaries, wouldn't that subject him to civil penalties and
perhaps criminal penalties?
A That would be beyond my responsibility as auditor.
Q You wouldn't take your close relationship with him,
your family relationship with him into account before you did
that?
A No.
Q Even subliminally?
A I don't think so.
Q But you don't know? You don't think so.
A I would not.
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Q Do you know who R. Clifton Robb is?
A I believe I do if that is who I know as Rick Robb.
Q How well do you know Rick Robb?
A I knew him a lot better 40 years ago, 30 years ago,
maybe a little less, 20 years ago, I have not seen much of Rick
in the last 20 years.
Q You wouldn't have any compunction about making a
determination that he may have been involved in some illegal
activity?
A No.
Q How about Charles Aloysius DeLone?
A I believe that is Dr. DeLone, my uncle, his wife is
my mother's sister.
Q
A
Q
A
Q
father?
A
I certainly know Dr. DeLone, yes.
A close relationship?
He is my uncle.
Do you see him on a regular basis?
I see him less frequently than I see Mr. Andes.
Are you aware of Dr. DeLone's relationship with my
I knew that my aunt and uncle lived right across
the street from your mom and dad for many, many years and that
they were friends I believe from the community.
Q They were best friends, weren't they?
A I have no idea. My uncle talked about a lot of
people; but I think they were friends for sure, that is about
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all that I know.
Q You don't have any problem with hearing this, this
close relationship, my father's best friend is your uncle, and
you don't think that there is any reason for you to recuse
yourself on that?
A I have heard absolutely nothing that would suggest
that my uncle has much of a role in this whatsoever, and I
suspect your father had friends allover the state as active as
he was. If that kind of connection were to disqualify me, it
would disqualify everybody.
Q No, I don't think it is --
THE COURT: You can't comment on the answers, you
can just ask questions.
BY MR. MUMMA:
Q My question is my father may have had friends all
over the state, but how many of them were your uncle?
THE COURT: Only one, I can answer that.
A Only one.
BY MR. MUMMA:
Q That is the issue that I am trying to prejudice.
Are your aware that Charles DeLone, Dr. Charles DeLone, had
financial dealings with my father?
A Not until I read it in your letter.
THE COURT: Mr. Green.
MR. GREEN:
I object to this.
I really object.
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The questions ought to be Mr. Andrews' understanding of the
relationship, not to feed him information designed to deepen
his knowledge so as to then assert that that new knowledge is a
basis to disqualify him. If he doesn't know that there were
ever business relationships, it is really unfair of Mr. Mumma
to tell him and then say, well, now you know too much, that is
not the way the issue should proceed.
THE COURT: Mr. Jacobs, do you have a position on
that?
MR. JACOBS: I have no position, Your Honor.
THE COURT: Mr. Mumma.
MR. MUMMA: Your Honor, I didn't go through this
whole thing to get halfway down the road with an auditor who
then decides, hey, I can't look at this because this is too
close of a relationship.
THE COURT: All right, you can ask the question.
BY MR. MUMMA:
Q If you were reviewing this and your uncle was a
participant in some of these financial arrangements that my
father made, don't you think that that would disqualify him?
A No.
Q Under the rules of ethics?
A No.
Q Do you consider yourself to be bound by the same
THE COURT: Is there some suggestion that Dr.
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DeLone acted improperly?
MR. MUMMA: There may.
THE COURT: What is that allegation?
MR. MUMMA: The allegation is that there were
several corporations whose assets were transferred or
undervalued and they used third parties as intermediaries may
be the word to transfer these assets from one corporation to
another.
THE COURT: You are saying Dr. DeLone is a knowing
intermediary in that sense?
MR. MUMMA: The indication that I have, the
knowledge that I have is that he was, he was a participant in a
corporation called Mandeal, until we get the records, the
corporate records and the other records that the estate has, we
can't be sure of that, but I think that the D-E in Mandea1 is
DeLone.
THE COURT: Assuming, Mr. Andrews, that that is one
of the contentions of Mr. Mumma, would that cause you to feel
that you could not judge the case fairly and impartially?
A No.
THE COURT: Anything further, Mr. Mumma?
BY MR. MUMMA:
Q If you determined that your uncle profited in some
way from this estate, would that be reason for you to
disqualify yourself?
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A The fact that my uncle's name or my uncle's
participation may have something to do with the estate assets
would not effect my finding of fact as it relates to the estate
assets and my rulings and application of the law to those facts
to rule on the objection.
Q What in your opinion are the respective duties that
a fiduciary owes to income and residuary beneficiaries?
THE COURT: How will this, Mr. Mumma, help me
determine whether Mr. Andrews can be fair and impartial?
MR. MUMMA: I think the question is whether he owes
a duty to the income beneficiary or to the residuary
beneficiary because they are two different classes of people.
These people were representing the income beneficiaries.
THE COURT: It seems to me his duty is to find the
facts as best he can in the case as they are presented by you
and by the counsel and to apply the law as best he can, make
recommendations to the Court. That is his responsibility, and
if he can do that, then he has performed his duties properly.
MR. MUMMA: Your Honor, I think I am entitled to
fair and impartial and thorough investigation of this estate
and the actions they have taken.
THE COURT: As Mr. Andrews says, he is not an
investigator, he is not the police department. It is your
responsibility through your presentation of the case to present
what you argue before him based upon the facts that you managed
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to get into the records. He is not an investigator and that is
not one of his responsibilities.
question?
So, what is your next
MR. MUMMA: Your Honor, I should raise another
issue here. I believe that the inventory, the very inventory
of the estate, I have a right to have a jury trial to determine
whether or not that inventory is correct.
I think that
inventory and what is in that inventory needs to be determined
before we have an audit of the activities of the estate of the
executrixes from the time the estate was started up until now.
THE COURT: What authority --
MR. MUMMA: The biggest issue here
THE COURT: What authority are you citing for that?
MR. MUMMA:
I believe it is in the local rules. I
don't have a copy of the local rules. It took 8 years or
something like that, they were impounded, we couldn't even get
the local rules.
THE COURT:
I am not familiar with the local rules
and being impounded in any way; but in any event, they are
certainly available.
relying on?
Do you have a specific rule that you are
MR. MUMMA: I don't have the cite with me, but the
rule states that we did not have to challenge the inventory
when it was filed. We have a right to challenge it now that
the final account has been filed, and we have the right to a
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jury trial to determine which assets were properly in the
estate.
THE COURT: Mr. Green, do you have a position on
the right to a jury trial in this proceeding?
MR. GREEN: Your Honor, I really don't without the
opportunity to consider what the request is and what the basis
for it is.
I am not aware of anything that would give Mr.
Mumma the right to have a jury trial as to anything that
pertains to what Mr. Andrews is being asked to do as part of
his duties.
THE COURT: Mr. Jacobs.
MR. JACOBS: Your Honor, without looking at the
issue, I can't comment on the jury trial, but I also don't see
it germane to today's issue.
THE COURT: We will enter this order, AND NOW, this
11th day of March, 2005, the oral motion of Robert M. Mumma,
II, for a jury trial at this stage of the proceeding is denied.
Anything further, Mr. Mumma?
BY MR. MUMMA:
Q Did you review the will?
A No.
Q What steps have you taken so far?
A I reviewed some of the docket entries. I reviewed
I am not sure it is all the objections, but I think the most
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recent round of objections; and sought to get further guidance
from counsel for the parties, because I could see that there
were a lot of objections, complicated, interrelated, in
anticipation of a conference with the counsel for the parties
to chart out how we would proceed.
At that point I got the counsel's letter suggesting
that I be removed as auditor and soon thereafter the motion;
and because I will be billing somebody for my work, I stopped
working at that point until this matter could be resolved.
Q Who do you think should pay for your time?
A The parties, the estate and you.
THE COURT: That is something that is going to be
determined later on. It is not an issue of impartiality at
this point as to who is to pay for the services, that is going
to depend upon findings of fact. There is no way Mr. Andrews
can decide now who he would recommend would pay and there is no
way he can determine who the Court is ultimately going to
decide should pay for it. You can ask him if he is predisposed
on that issue and thinks that he already knows who he thinks
should pay for the proceeding. You can ask him that question,
but he can't at this point make a recommendation as to who is
to pay for it, he hasn't heard anything.
MR. MUMMA: Your Honor, I have a problem with him
acting as a judge and making findings of fact in this matter,
he is too close to these issues.
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THE COURT: You have made that point in your
motion, but this is going beyond that. This is starting to ask
him to make a recommendation at this early stage where he
hasn't even heard any evidence. I will ask the question. Are
you predisposed as to which of the parties should pay for your
services?
A I am not, but I am anxious to assure that I will be
paid for my services.
BY MR. MUMMA:
Q At what rate?
A My hourly rate is $175 per hour. That is what I
charge my clients.
Q You bill on a certain time schedule?
A Tenths of an hour.
Q What time do you bill for?
A Any time devoted to this matter.
Q So if you have --
MR. GREEN: I would object. I don't wish to
interrupt this proceeding, but I didn't see how the questions
of how Mr. Andrews bills are either encompassed within the
motion or relevant to the question of his partiality or
impartiality.
THE COURT: Mr. Mumma, was this part of the motion?
MR. MUMMA: I am just asking the question.
THE COURT: I know, but you are pretty much
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1 MR. MUMMA: The motion didn't cover who was getting
2 paid, what they were getting paid or the basis they were going
3 to bill on.
4
THE COURT: Mr. Jacobs, do you have position?
MR. JACOBS: No position.
THE COURT: All right. This question is not
encompassed by the motion or petition to recuse or remove Mr.
Andrews and appoint a new auditor and the objection is
sustained.
5
BY MR. MUMMA:
Q Mr. Andes, are you under a time limit to pursue
this audit?
A There is an initial time limit. I already have my
calender tickled to move for an extension which is quite clear
to me will be necessary.
Q How long do you anticipate this matter being
continued?
A That is hard to say in light of the multipage
letter that has already been introduced as an exhibit. I could
see this could easily take a year or more.
Q Oh, the estate itself has been going on for 19
years.
A That is why I am a little less uncomfortable to
take a year or more.
Q Are you familiar with any other estates that have
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taken 19 years to close?
MR. GREEN: Again, I would object, this can hardly
go to Mr. Andrews' partiality.
THE COURT: Mr. Jacobs.
MR. JACOBS: I agree with that objection.
THE COURT: The objection is sustained.
Any other questions, Mr. Mumma?
BY MR. MUMMA:
Q Can you define what you consider to be income in
the estate?
5
MR. GREEN: Your Honor, I would object. This seems
to be beyond the scope of this proceeding.
THE COURT: How would this relate to his
impartiality?
MR. MUMMA: Because they are the income
beneficiaries and one of the things that they have done is
considered principal as income, and in my mind for him to be
impartial, he needs to be able to determine and he should have
a definition of what income is versus principal.
THE COURT: Wouldn't that be something that would
be brought out in evidence by some expert who is an accountant
or something of that sort would say this is income, this is
principal, and some other accountant would say, no, it is not,
it is this way, and how can Mr. Andrews decide that at this
point?
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MR. MUMMA: I am going to ask him what his present
position is. He says he has been an auditor --
THE COURT: He hasn't heard the case. He doesn't
have a present position on it. The objection is sustained.
BY MR. MUMMA:
Q What is your intention on discovery?
MR. GREEN: Objection, Your Honor, again, now we
are getting into questions about how Mr. Andrews would conduct
the proceeding rather than whether he is partial or impartial,
and also, as you mentioned earlier, the discovery issue is in
the first instance, now to be the subject of a conference
before Your Honor on the 4th of April.
THE COURT: Mr. Jacobs.
MR. JACOBS: I agree with that objection.
THE COURT: Mr. Mumma, do you have a response?
MR. MUMMA: Your Honor, I think that he is an
attorney, he has a certain opinion of what the attorney/client
privilege is. My question whether or not he will allow us to
see, as I believe we are entitled to, all of the
communications, correspondence, advice and everything else that
Morgan Lewis and the other attorneys have provided to the
estate.
THE COURT:
MR. MUMMA:
All right, the objection is sustained.
Your Honor, we think there should be a
continuance of any audit procedure until the discovery is
39
1 completed.
2 THE COURT: Okay, is that in the form of a motion?
3 MR. MUMMA: Yes, I am making that motion.
4 THE COURT: Mr. Green.
5 MR. GREEN: Our position is, I have stated, again,
6 we can deal with this now or however Your Honor chooses, but
7 our position would be that discovery in an estate or a matter
8 such as this is necessarily intertwined with the audit process
9 and that we would expect that any auditor who is appointed
10 would play a role in deciding what discovery was appropriate
11 once the auditor was familiar with the issues and made a
12 determination as to what information might be available and how
13 that information might relate to the issues.
14 But it seems to us that discovery must be governed
15 by, and in the first instance, supervised by the auditor to
16 insure .that it does, in fact, relate to the issues that the
17 auditor needs to dispose of rather than to tangental or
18 ancillary issues.
19 THE COURT: Mr. Jacobs.
20 MR. JACOBS: I agree that discovery ought to be
21 part and parcel of the audit process, that seems to make sense
22 to me.
23 THE COURT: All right. We will enter this order:
24 AND NOW, this 11th day of March, 2005, the oral motion of
25 Robert M. Mumma, II, to stay the proceedings before the auditor
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pending discovery is denied without prejudice to the right of
any party to have any part to formally move for a stay of the
proceedings based upon a more complete record on that issue.
I don't see that issue as before me at the present
time, at least I am not prepared to make an ultimate ruling on
that. Is there anything further for Mr. Andrews?
BY MR. MUMMA:
Q Mr. Andrews, do you think when you conduct this
audit that you are entitled to see the legal bills and the work
that was done to generate those, the opinions that the
attornies gave to the executrixes, etcetera?
MR. GREEN: Objection, Your Honor, again, I believe
this is beyond the scope of the purpose of this proceeding.
THE COURT: All right. Mr. Jacobs.
MR. JACOBS: I agree with that objection.
THE COURT: The objection is sustained.
MR. MUMMA: Your Honor, I feel he has an obligation
to make a full and fair determination of whether the legal
services provided were appropriate, whether they were billed at
the appropriate rate or whether somebody loaded up the wagon
with invoices and had them paid out of this estate. I think
that is appropriate for him to audit.
THE COURT:
It seems to me you are using this
proceeding to try to get rulings from Mr. Andrews in advance
when he doesn't have any kind of a record to work from, so I am
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going to sustain the objection.
MR. MUMMA: But he has been an auditor before, and
I would like to ask him if in that audit did he review the
legal bills and the attornies' fees and their opinions.
THE COURT: That issue is not raised in the motion
to recuse him.
You also have a right, if you feel that Mr. Andrews
is being unfair in some way, to file a motion to recuse; but
you are getting into very speculative areas at this point in
trying to get him to make rulings on things that he hasn't
heard.
MR. MUMMA: Your Honor, that may be, but this man
is not going to be fair to me, I am not going to get an
impartial hearing at this point.
THE COURT: That--
MR. MUMMA: His family is too close to the
executrixes.
THE COURT: Anything further of Mr. Andrews, any
further questions?
MR. MUMMA: No.
THE COURT: Okay. We will take a five minute
I need to call Judge Hoover and find out what his
recess.
wishes are.
(Recess.)
THE COURT: We will let the record indicate that
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the Court has reconvened in the matter of the Estate of Robert
M. Mumma.
Mr. Green, do you have any questions of Mr.
Andrews?
MR. GREEN: Your Honor, no questions.
THE COURT: Mr. Jacobs.
MR. JACOBS: No questions, Your Honor.
THE COURT: Mr. Mumma.
MR. MUMMA: No questions, Your Honor.
THE COURT: Mr. Andrews, knowing everything that
has been presented today, are you able in your view to hear
this matter as auditor fairly and impartially?
A I believe I can, Your Honor.
THE COURT: If there comes a point at which you
feel that you are placed in a position where your impartiality
and fairness would be questionable in any way, would you so
advise the counsel and Mr. Mumma and the Court and ask to be
recused?
A Yes, I would.
THE COURT: Mr. Mumma, anything further?
MR. MUMMA: Yes, Your Honor. The reason I was
asking, one of our objections was the competency of Attorney
Andrews to handle this estate, audit, because it will be more
expensive if he is not familiar with these areas that I was
questioning him on. If every time some issue comes up he has
43
1 to go get an opinion or ask somebody else to research it
2 because he isn't familiar with what the rules are, that is
3 going to make all this that much more expensive, and I don't
4 think that is appropriate.
5 We should have somebody that we agreed on that has
6 thorough knowledge of business practices, the BCL, accounting
7 degree, I believe, they should have a forensic accounting
8 degree. They should be able to go through by themselves and
9 work up the numbers and see whether it meets the smell test or
10 not. That is going to lead them into asking questions, it
11 shouldn't be just what they are told and they make a decision
12 based on whose brief they like better.
13 THE COURT: Are you
14 MR. MUMMA: I would like to ask those questions as
15 to whether or not he has that expertise.
16 THE COURT: What attorney in this county, other
17 than Mr. Otto, do you feel has a forensic accounting degree?
18 MR. MUMMA: There is a Susan Stott who I think
19 would be an appropriate auditor for the accounting.
20 THE COURT: Okay. Mr. Green, do you have an
21 argument to be made with regard to this motion to recuse or
22 remove Attorney Taylor P. Andrews and appoint a new auditor?
23 MR. GREEN: By way of closing statements so to
24 speak?
25 THE COURT: Yes.
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MR. GREEN: Your Honor, our concern, and
interestingly seems to be something that we share with Mr.
Mumma, although I think we have different ways of getting
there, but we would like to move forward. We believe based on
what we have seen though it has been very limited, that Mr.
Andrews is perfectly capable of doing this. And as Your Honor
has suggested there would be, we expect along the way,
testimony, perhaps expert testimony, and other materials to
assist in that process. We expect that it will provide
whatever information Mr. Andrews tells us that he needs or
wants to see.
THE COURT: Again, Mr. Andrews isn't an
investigator. He is not going to tell you what to present, you
are presenting your case to him, rather than having him go out
and investigate and say what he wants to hear.
MR. GREEN: I understand. I simply meant that if
he had a question about something that we were asking or
something we were saying that we would stand ready to fill in
there.
On the standard for impartiality, we believe that
the test is, first of all, there has to be a reasonable
question about partiality.
I see nothing that would suggest
there is any reasonable basis at this juncture to question Mr.
Andrews' partiality. Also, it is Mr. Mumma's burden to come
forward with some compelling case that there is an issue.
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1 Again, we feel that he has not met that burden.
2 The only other point I would say is that with
3 respect to Mr. Andrews' expertise, we are entirely comfortable
4 with that as well. I suspect that contrary to what Mr. Mumma
5 said, it will be the facts rather than the legal matters and
6 principals that make this complex if, in fact, it proves to be
7 so; but we have no objection to and support the appointment of
8 Mr. Andrews at this point.
9 THE COURT: Okay. Mr. Jacobs, do you have a final
10 argument?
11 MR. JACOBS: Your Honor, I have not heard anything
12 this morning which would call into question in the least Mr.
13 Andrews' impartiality or fairness in this matter, that is my
14 position.
15 THE COURT: All right. Mr. Andrews, you may step
16 down. Thank you.
17 Mr. Mumma, did you have any further argument to
18 make?
19 MR. MUMMA: Your Honor, I would like to go back to
20 the continuance issue if I may and I would like to cite a case.
21 THE COURT: Let's deal with this issue that is
22 directly in front of me at this point, that is whether Mr.
23 Andrews should be removed. I am assuming the evidence is on
24 the point, you have made the record you want to make, Mr. Green
25 has made the record he wants to make, and Mr. Jacobs has made
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his record. Is there anything more you want to argue on that
point?
MR. MUMMA: I would like to call Daryl Christopher
to the stand.
THE COURT: Daryl Christopher?
MR. MUMMA: Yes, sir.
THE COURT: All right. Mr. Christopher.
DARYL EDWIN CHRISTOPHER,
having been du1y sworn, testified as fo11ows:
DIRECT EXAMINATION
BY MR. MUMMA:
Would you state your name for the record?
Daryl Edwin Christopher.
Are you an attorney?
Yes.
Did you represent me in this issue and other
Q
A
Q
A
Q
issues?
A
Q
Yes.
During that representation did you review the
Court's order appointing Mr. Andrews as the auditor?
A Yes.
Q Did Mr. Andrews request that you provide him with a
summation of what the issues were going to be?
A Yes, he gave us -- he wrote us a letter, but I
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1 think it was addressed to 840 Market Street instead of our P.O.
2 Box, so the first that I found out about it was with the phone
3 call I think that Mr. Otto, either I called him or he called
4 me, but that is when I first learned it. So I think that might
5 have been on a Thursday and our letter was supposed to be due
6 on a Friday. So I called Mr. Andrews or he called me, again --
7 I think I called him, and his secretary faxed the letter over
8 and I think it was due the next Wednesday, but, yes.
9
10 Andrews?
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Q
In that did you have a phone conversation with Mr.
A
Q
A
Yes.
Can you relate what happened in that conversation?
Well, I think he said that he would like a letter,
14 a bullet letter I think is what were the terms, just
15 summarizing our positions. I said, If we fail to bring
16 something, can it be weighed, and he said, No, this is just to
17 help me get up to speed.
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Q
A
So you wrote a general, very general letter?
I tried to include as many points as I could come
20 up with off the top of my head in that two-day period without
21 coming here and looking at all the objections that had been
22 filed and whatnot.
23
24 Andrews?
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Q
That was a conversation solely between you and Mr.
A
Yes, but I think he followed it up with an e-mail
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to all parties.
Q But that was the next part of that conversation
that you had?
.A It was between us.
Q Did you have any discussion about how the audit
would proceed and who would be allowed to participate in the
audit?
A I told him that I wouldn't be permitted to be part
of -- the terms of my relationship with you was that we
couldn't meet in a counsel only meeting without you present.
Q What was his reaction?
A I believe he said to include it in the letter but
he would reserve making a decision on that.
Q This estate has been going on for 19 years. How
long have you been involved with the estate?
A I started working on it in August of 2004 and
continued the representation with Sohonage and Christopher in
December of 2004, so 8 months.
Q In that 8 months you have learned a lot, but do you
feel that you are facile enough with the facts and the history
of this case to proceed without my participation?
A Sorry, what was the question?
MR. GREEN: Your Honor, I object, I am not quite
sure what the relevance of this would be at this point.
THE COURT: Mr. Mumma.
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MR. MUMMA: The relevance is, Your Honor, Mr.
Andrews has already told Mr. Christopher that I may not be
allowed to participate in this audit and he is going to make
that decision --
THE COURT: My understanding of his testimony was
that he, Mr. Christopher, is saying that he has asked Mr.
Andrews if you can participate in the meetings of counsel with
the auditor, not whether you can participate in the hearings.
Of course, you can participate in the hearings; but it is a
common practice for auditors and judges to meet with counsel in
the case outside the presence of the parties, and that I think
is the only question that was raised by the testimony here
today. I am not sure I understood what the answer was, but
what did Mr. Andrews say?
A To include it in the bullet letter that I gave him
and that he would reserve his decision on that for later.
THE COURT: Whether Mr. Mumma could participate in
the meetings that Mr. Andrews had with counsel on the case?
A Correct.
THE COURT: All right.
MR. MUMMA: Your Honor, I submit that that puts me
at a disadvantage right now because
THE COURT: Because he has reserved the decision on
whether you can participate in the meetings with counsel?
MR. MUMMA: Yes.
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THE COURT: All right. You have made the point on
the record.
MR. MUMMA: I am here representing myself today
THE COURT: That is argument. Do you have any
further questions for Mr. Christopher?
MR. MUMMA: No.
THE COURT: All right, Mr. Green.
MR. GREEN: Your Honor, I have no questions.
MR. JACOBS: No questions.
THE COURT: You may step down, thank you.
Now, have we completed the evidentiary phase of
this motion, anything further, Mr. Mumma?
MR. MUMMA: Well, Your Honor, I would like to
submit this case through the Rosenblum case
THE COURT:
I want to make sure we are closing the
record as far as the evidence goes, is there any further
evidence?
MR. MUMMA: No.
THE COURT: Okay. Now I will hear any further
argument. I think counsel already started their arguments, Mr.
Mumma, do you have any further argument, including reference to
any cases?
MR. MUMMA: Yes, sir. I have a copy of this for
Your Honor.
THE COURT: What case are you citing?
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MR. MUMMA: The case is in the matter of the estate
of Morris Rosenblum Deceased and Pittsburgh National Bank
Trustee for the Benefit of Anna R. Reichman, Herman H.
Rosenblum and Sarah Lucille Helfer.
THE COURT: What is the citation?
MR. MUMMA: I am not sure I know how to read it.
Citation No.7, Pretrial Procedure 532.
THE COURT: Mr. Green has a copy. What is the
citation, Mr. Green?
MR. GREEN: The citation of the case is 459
Pennsylvania 201.
THE COURT: I heard the 201 and the Pennsylvania,
what was the volume number.
MR. GREEN: 459. Do you want the Atlantic cite
also, it is 328 A.2d 158, the case was decided in 1974.
THE COURT: All right, go ahead, Mr. Mumma.
MR. MUMMA: The case says that: Documents, sought
on discovery, relating to a trust are relevant to the subject
matter of an audit in the trustee's account, and may
substantially aid in preparation of objections to the account.
Yet we are being told we are going to go ahead and
do the audit before we are allowed to do discovery.
THE COURT: The issue before me now is whether Mr.
Andrews is to be removed as auditor.
on that point?
Do you have any argument
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MR. MUMMA: My argument would be that he is not
going to be fair to me, that he will engage and has engaged in
ex parte communications.
THE COURT: With your own attorney?
MR. MUMMA: Yes.
THE COURT: All right. Mr. Green?
MR. GREEN: Your Honor, I have nothing to add by
way of argument here. If Your Honor would permit, I have a two
page memorandum that we have prepared basically on the legal
standard and its application to the facts here as it pertains
to removal.
I have a copy for Mr. Mumma if Your Honor would
like to receive this.
THE COURT: All right. Mr. Jacobs, do you have an
argument to make?
MR. JACOBS:
I have nothing to add to my prior
comments, Your Honor.
THE COURT: What is your position on the motion
again?
MR. JACOBS: That I have heard nothing here this
morning which would call into question any partiality of the
auditor.
THE COURT: All right. Mr. Green, for Mr. Mumma's
benefit rather than delay the proceeding by submitting a
memorandum, why don't you make your oral argument and then he
can respond to it.
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1 MR. GREEN: I believe I have hit the highlights in
2 what I said earlier, Your Honor.
3 THE COURT: All right, we will enter this order,
4 and now, this 11th day of March, 2005, upon consideration of
5 the Motion To Recuse/Remove Attorney Taylor P. Andrews and To
6 Appoint a New Auditor filed on behalf of Robert M. Mumma, II,
7 and following a hearing, the motion is denied.
8 Court is adjourned.
9 (Court adjourned at 11:30 a.m.)
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CERTIFICATION
I hereby certify that the proceedings are contained
fully and accurately in the notes taken by me on the above
cause and that this is a correct transcript of same.
(Jrftrd'/ LV {! ,1:j tU1/1L
Patricia C. Barrett
Official Stenographer
-----------------------
The foregoing record of the proceedings on the
hearing of the within matter is hereby approved and directed to
be filed.
:rv\::J IS
Date I
,....
;; t:J o~
J
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