Loading...
HomeMy WebLinkAbout98-00950 i ¦ No$ GO Term Court of Common P142C ti COZEN AND O'CONNOR BY; !-I. Robert Piebach, Esquire ATTORNEY I.D. 002812 BY; David M, Doret, Esquire ATTORNEY I.D. #15634 The Atrium - 5th Floor 1900 Market Street. Philadelphia, PA 19103 (215) 665-3716 ROBERT M. MUMMA, II GRANTOR RETAINED ANNUITY TRUST P.O, Box 2255 614 North Front: Street Harrisburg, PA 17105 and ROBERT M. MUMMA, II Box 508 McCormick Road Bowmansdale, PA 17008 and SUSAN MUMMA Box 508 McCormick Road Bowmansdale, PA 17008 Plaintiffs, v. BENEDICT B. RANDOLPH 132 Rivercrest Drive Greenville, North Carolina Defendant Attorney for Plaintiffs COURT OF COMMON PLEAS CUMBERLAND COUNTY NO, PR CIPE FOR LIS PENDENS TO THE CLERKi Please index the below-described action for specific performance of a contract for the sale of real. property as a l is Pendens against the following real property, which realty is more particularly described at Cumberland County Deed Book "F, r' Volume 32, Page 597, 1607 Industrial Drive Carlisle, Cumberland County, Pennsylvania The action is pending in the United Stated District Court for the Middle District of Pennsylvania, and is docketed as Civil Action No, 98-87, A true and correct copy of the Complaint in the action is attached hereto as Exhibit "A", The undersigned hereby certify that the action affects title to or other interest in the above-described real property, Respectfully submitted, COZEN AND 0' ODINOR BY: IT. ROBERT FIEBAcn, ESQUI E DAVID M. DORET, ?3SQUIRE Attorneys for Plaintiffs The Atrium Floor 1900 Market Street Philadelphia, PA 19103 (215) 665-2000 Dated: February 18, 1998 W'.\ir nc\0!!i"\UfiJ9tiVN?G\FMM"U in 2 » IN THE UNITRS STATEc; DISTRICT COURT FOR THF: MIDDLE DISTRICT OF PENNSYLVANIA ROBERT M. MUMMA, I I CIVIL AC'T'ION GRANTOR RETAINED ANNUI'T'Y TRUST P,O. Box 2255 614 North Front St.reet Fiarr. i.sburg, PA 17105 and ROBERT M. MUMMA, II'. Box 508 McCormick Road Bowmansdale, PA 1.1008 and SUSAN MUMMA Box 508 McCormick Road Bowmansdale, PA 17008. Plaintiffs, v. BENEDICT B. RANDOLPH 132 Ri.vercrest Drive Greenville, North Carolina Defendant. 91 p ".1 i FILED HARRISBURG, PA JAN 161998 MARY E. U'ANDREA, 0 .RK Per Deputy C ( NO, COMPLAINT 11 Plaintiff, Robert M. Mumma, II Grantor Retained Annuity Trust (the "GRAT"), is a grantor retained annuity trust organized and existing under the law; of the Commonwealth of. Pennsylvania, having its principal place of business at Box 2255, 614 North Front Street, Harrisburg, PA 111105. Its trustees are the individual plaintiffs. 2. Plaintiff, Robert M. Mumma, II, is an individual citizen and resident of the Commonwealth of Pennsylvania, residing at McCormick Road, Bowmisnsdalrt, I'A 17008, Bober('. M. Mumma, II is a trustee of: Hie GRAT. 3, Plaintiff, Susan Mtmmlia, i.n tun individual, citizen and resident of the Commonwealth of llnnn:iylwtni i, residing at McCormick Road, dowmansdale, PA 17008. !;usan Mumma is a L ustee of the GRAT. h. Defendant, Benedict _13. Randolph, is an individual citizen and resident of the State of North Carolina, residing at 132 Ri.vercrest Drive, Greenville, North Caro-I ina, on information and belief, Randolph also maintain; a litw ness address within this District at 8 Modell. Road, Carlisle, Pennsylvania 1.7013. 5. Jurisdiction of tlni.: exi ,t Under the doctrine of diversity of citizenship pursuant to 28 U.S.C, § 1332. The amount in controversy, exclusive of interest and costs, exceeds the sum of $75,000.00, since the property which i.s the subject of this action has a value in excess of the :,um,of. $75,00o.00 and, alternatively, plaintiffs have suffered damages in excess of the sum of $75,000,00. 6. Ventre exists in this District, in that the real estate which is the subject. of this action is located in this District and a substantial part of: the events giving rise to the claim occurred in this District. 7. Defendant is the owner of certain land and improvements located at 1607 Industrial Drive, Carlisle, Pennsylvania (the "Property"), which realty is more particularly described at Cumberland County Deed Book Volume 32, Page 597. - 2 - 0.. on or about December 19, 1995, Randolph, the GRAT and McDermitt, Inc, ("McDermitt"), the then lessor of the Property, entered into an agreement. (the "Agreement.") whereunder (a) Randolph agreed to sell the Property to the GRAT for. $250,000,00; (b) McDermitt assigned to the GRAT all of its right, title and interest in the Property; and (c) the parties to the Agreement agreed that a debt of Randolph to Mcpermi.tt, which the parties agreed to be in the amount of $50,000.00, was to be deemed the funds of the GRAT and was to be applied on behalf: of the GRAT to constitute the GRAT's earnest money deposit toward the purchase price for the Property. 9. Despite the fact that the GRAT has performed all of its obligations under the Agreement, and that all preconditions to conveyance of the Property have occurred (or can occur in the event of defendant's good faith performance of its obligations under the Agreement), and despite the fact that demand has been duly made upon defendant- for performance under the Agreement:, Defendant. wrongfully refuses to perform his obligations under the Agreement, including his obligation to convey the Property to the GRAT, or, alternatively, Lo return to the GRAT the earnest money in the amount of $50,000.00. COUNT ONE 10. Paragraphs I through 9 hereof are incorporated in this Count by reference as if fully set forth herein. 11. By failing to convey the Property, Defendant is in breach of the Agreement-. .. 3 - 1.2,. Spec] ,lic pr.rforuruu?e of the Agreement, i.nel.udi.ng the conveyance of the Property, !;hould be decreed. 13, Pl.ai.ntiEN do not have an adequate remedy at law, WHEREFORE;, plaintiffs reque:,t that the Court enter judgment (a) directing defendant to take all actions necessary to convey the Property to the GUM,'; (b) directing than defendant: perform all of its other obligations cinder the Agreement; and (c) awarding plaintiffs such other and further relief as the Court deems appropriate, including counsel fees, costs of suit- and interest. COUNT _77WKO 14. Paragraphs I through 1.3 hereof are incorporated in this Count by reference as if fully set forth herein. 15, Defendant is in breach of his obligal:ions tinder the Agreement, 16, In the alternative, as a proximate result of defendant-'s failure to perform under the Agreement, including but not limited to the failure of defendant to convey the Property, the GRAT has suffered damageH in excess of $75,000.00. WHEREFORE, plaintiffs request: that the Court enter judgment awarding the GRAT damages in an amount in excess of $75,000,00, and awarding plaintiffs such other and further relief as the Court deems appropriate, including counsel fees, costs of suit and interest. COUNIT THREE 17. Paragraphs I Lhrough 16 hereof are incorporated in this count: by reference as if fully set forth herein, 4 _. I 18, Ln Che aIA:ernal.:ive, Che Court. should direct that the $50,000,00 cainrst money depos.i.t. be paid to DRAT, WRGIRHPORE, Plaint'iff'; ro(jueSt that Che Court enter judgment awarding the GRA'L' the rum of 550,000.00, and awarding plaintiffs such other and further relief. as the Court deems appropriate including counsel fees, costs of suit and interest. Re,pectfIII ly submitted, COZEN AND O'CO OR BY: u ff. (")AE TG 1, PSQU RG -- ACCor.r 11 1.a111t3 _f:fs The Atr.i.unt Pl.oor. 1.900 Market Street 1)h1.'Ladelphia, PA 19103 (215) 665-2000 Dated: January 15, 1990 W.109C\IP,yV 1059B11P 4/4990140 - g _ M FI--(2-A IO David M, Doret, Esquire hereby states;' 1. I am one of the counsel to the plaintiffs in this action. The undersigned is submitting this verification because counsel is most familiar with the operative facts in the Praecipe for Lis Pendens, 2, I verify that the statements made in the foregoing Praecipe for Lis Pendens are true and correct to the best of my knowledge, information and belief, 3. I understand that the statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities, DATED; February 18, 1997 _ DAVI M, DORET, ESQUIRE W'. U)vc\I[O51\0590\I9 F.\L MMOO:v i 9, 116< ;.. Hubert X. Gilroy, Esquire Attorney I.D. No. 29943 Katie J. Maxwell, Esquire Attorney I.D. No. 206018 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Petitioner Danny L. Turner ROBERT M. MUMMA, II GRANTOR RETAINED ANNUITY TRUST P.O. Box 2255 614 North Front Street Harrisburg, PA 17105 and ROBERT M. MUMMA, II Box 508 McCormick Road Bowmansdale, PA 17008 and SUSAN MUMMA Box 508 McCormick Road Bowmansdale, PA 17008 Plaintiffs V. BENEDICT B. RANDOLPH 132 Rivercrest Drive Greenville, North Carolina Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 98 - 950 CIVIL CIVIL ACTION - LAW Amendment to Petition to Strike Lis Pendens In accordance with Cumberland County Local Rule 208.3(a), Petitioner amends and supplements his Petition to Strike Lis Pendens as follows: 1. No Cumberland County judge has yet ruled on this issue. 2. Thomas W. Scott, Esquire, is believed to represent the Respondents. His concurrence was sought by the undersigned, but he was unable to be reached. It is assumed that Mr. Scott does not concur. Respectfully Submitted, MARTS LAW OFFICES 4 lw? Hubert X. Gilroy, Esquire Attorney I.D. No. 29943 Katie J. Maxwell, Esquire Attorney I.D. No. 206018 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date: December 10, 2007 Attorneys for Petitioner Danny L. Turner a CJ -n ? "ZJ 5 ' Hubert X. Gilroy, Esquire Attorney I.D. No. 29943 Katie J. Maxwell, Esquire Attorney I.D. No. 206018 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Petitioner Danny L. Turner DEC 11200] ROBERT M. MUMMA, H GRANTOR RETAINED ANNUITY TRUST P.O. Box 2255 614 North Front Street Harrisburg, PA 17105 and ROBERT M. MUMMA, II Box 508 McCormick Road Bowmansdale, PA 17008 and SUSAN MUMMA Box 508 McCormick Road Bowmansdale, PA 17008 Plaintiffs V. BENEDICT B. RANDOLPH 132 Rivercrest Drive Greenville, North Carolina IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 98 - 950 CIVIL CIVIL ACTION - LAW Defendant RULE TO SHOW CAUSE AND NOW, on this day of December, 2007, upon consideration of the Petitioner's Motion to Strike Lis Pendens, a Rule is hereby issued upon Robert M. Mumma, II, Grantor Retained Annuity Trust, Robert M. Mumma, 11, and Susan Mumma, to show cause, if any they have, why the Motion to Strike Lis Pendens should not be granted. This Rule is returnable at a hearing scheduled in the matter in Courtroom No. 3 , on the day of , 200V, at ? •30,o'clock, p T m. Cumberland County Courthouse, Carlisle, Pennsylvania. BY T COURT, BY J. Distribution: Bert X. Gilroy, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 Thomas W. Scott, Esquire Killian Gephart 218 Pine Street P.O. Box 886 Harrisburg, PA 17101 ?N?j?ry?rWASMOd A L I M Wd +t 1 030 LOOZ J71/- 3 W D m ?? .: r rl, o', `, o „" o t? r r ?? m m Linda J. Olsen, Esquire PA I. D. 92858 Thomas W. Scott, Esquire PA I.D. 15681 Killian & Gephart, LLP 218 Pine Street P. O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 lolsen(a)killiang_enhart.com tscott(&killianeeuhart.com IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA Robert M. Mumma, II Grantor Retained Annuity Trust; Robert M. Mumma, II and Susan Mumma, : Movants No. 98-0087 V. Benedict B. Randolph V. Pennsy Supply, Inc., Respondent V. Danny L. Turner, : Additional Respondent Judge Sylvia H. Rambo FILED ELECTRONICALLY VIA ECF MOTION FOR AN ORDER PURSUANT TO RULE 7(b) TO JOIN AN ADDITIONAL RESPONDENT TO ENFORCE A SETTLEMENT AGREEMENT AND STIPULATION OF DISMISSAL. FOR CONTEMPT, AND TO IMPOSE SANCTIONS Movants, Robert M. Mumma, II Grantor Retained Annuity Trust ("GRAT"), Robert M. Mumma, II, and Susan Mumma (collectively "Mumma"), by and through their attorneys, Killian & Gephart, LLP, pursuant to F.R.C.P. 7 (b) hereby file this Motion to Join an Additional Respondent, to Enforce a Settlement Agreement and Stipulation of Dismissal, for Contempt, and to Impose Sanctions, and in support thereof, aver the following: 1. The Parties 1. Movant, Robert M. Mumma, II Grantor Retained Annuity Trust ("GRAT") is a legally established trust entity of which Robert M. Mumma, II is the Grantor and Robert M. Mumma, II and Susan Mumma are the Trustees. The mailing address of the GRAT is P. O. Box 58, Bowmansdale, PA 17008. 2. Movants Robert M. Mumma, II and Susan Mumma are adult individuals, having a legal residence address of 6880 S.E. Harbor Circle, Stuart, FL 34996. 3. Respondent, Pennsy Supply, Inc. (hereinafter "Pennsy"), is a Pennsylvania Corporation with a registered business address CIO CT Corporation System, Philadelphia, Pennsylvania. Pennsy regularly does business in the Commonwealth of Pennsylvania. 2 4. On information and belief, Additional Respondent, Danny L. Turner (hereinafter "Turner"), is an adult individual having an address of 210 Big Pond Road, Shippensburg, Cumberland County, Pennsylvania. II. The Original Dispute 5. The GRAT commenced litigation against Benedict B. Randolph ("Randolph") by filing a Complaint on January 16, 1998 in the United States District Court for the Middle District of Pennsylvania and docketed to No. 98- 0087. 6. The litigation sought specific performance (or in the alternative, damages) of a December 18, 1995 Letter of Intent between the GRAT and Benedict Randolph (hereinafter "Randolph"), whereby the GRAT alleged Randolph was to convey property at 1607 Industrial Drive, Carlisle, Pennsylvania to the GRAT. 7. Pennsy was granted leave to intervene in the aforesaid litigation, as of right, arguing that enforcement of the Letter of Intent would violate other agreements to which both Pennsy and Mumma (or entities controlled by him) were party 3 8. Pennsy also asserted claims against Randolph for specific performance of its alleged right of first refusal to acquire the 1607 Industrial Drive property and against Mr. Mumma for fraud. 9. Both Pennsy and Mumma are in the business of producing, selling and delivering concrete, concrete by-products and asphalt in and around Cumberland County, Pennsylvania. 10. The 1607 Industrial Drive property had particular value to both Penny and Mumma because it is in an industrial park that permits concrete plants in a geographic area where the product is in demand and it is difficult, if not impossible, to site another similar plant due to zoning and other land use regulations. The location of a concrete manufacturing plant is very important to the profitable operation of a concrete manufacturing business due to the costs associated with transporting the product to the end user. 11. All parties denied the allegations set forth in the claims by and against one another in the litigation. 12. Attorneys for Pennsy Supply, Inc. in the above-captioned litigation were Michael A. Finio, Esquire and Stephen M. Donweber, Esquire, Attorney ID Nos. 38872 and 71170, respectively, of the law firm of Saul, Ewing, Remick & 4 Saul LLP, Penn National Insurance Tower, 2 North Second Street, 7th Floor, Harrisburg, PA 17101. 13. The case was assigned to the Honorable Sylvia H. Rambo. III. Settlement of the Original Dispute via Stipulation of Dismissal and Settlement Agreement and General Release 14. A non jury trial on the issues presented in the original dispute was scheduled to begin before Judge Rambo on January 18, 2000. 15. Prior to trial the parties reached a settlement of their differences. 16. At the time the trial was set to begin before Judge Rambo on January 18, 2000, Stephen Donweber, Esquire, representing Pennsy Supply, reported to the Court that the "parties to this action have settled all of their claims," said settlement being made pursuant to "the authority of the respective attorneys to settle on behalf of their clients." (Tr. 2-3). A copy of the transcript of the settlement hearing before Judge Rambo is attached hereto as Exhibit "A." 17. A Stipulation of Dismissal ("Stipulation") was read into the record, the terms of which were subsequently reduced to writing in a Settlement Agreement and General Release ("Settlement Agreement"). 5 18. The Stipulation and ultimate Settlement Agreement provide, in pertinent part: 2. All claims in the above action have been settled on the following basis: a. Pennsy Supply, Inc. will purchase the property at 1607 Industrial Drive in Carlisle, Pennsylvania from Ben Randolph for $300,000. At settlement, the proceeds of this payment shall be divided as follows: $217,500 shall be paid to Benedict Randolph and $82,500 shall be paid to the Robert M. Mumma, II Grantor Retained Annuity Trust in care of Robert M. Mumma, II Trustee. Pennsy Supply will get title and the deed to the Carlisle property at 1607 Industrial Drive. b. Pennsy will also give Robert M. Mumma, II a right of first refusal to purchase the property at 1607 Industrial Drive which will be triggered on Pennsy's future receipt of a bona fide offer to purchase the property from a third party which Pennsy is willing to accept. Pennsy will give Mumma twenty (20) days to exercise this right and ninety (90) days to close from the date of the exercise. A copy of the Stipulation is attached hereto as Exhibit "B." A copy of the Settlement Agreement attached hereto as Exhibit "C." 19. According to the terms of the Stipulation, failure to comply with the terms of the Stipulation "will result in proceedings for contempt against the non- complying party." See Exhibit `B," paragraph 5. 20. Attorneys for Pennsy Supply, Inc. (Michael A. Finio, Esquire or Stephen M. Donweber, Esquire) executed the Stipulation on January 18, 2000. 6 21. The Stipulation was approved by the Honorable Sylvia H. Rambo and entered of record on January 18, 2000 at document number 114. 22. The docket entry reads: STIPULATION AND ORDER signed by cnsl and Judge Sylvia H. Rambo OF DISMISSAL: 1) All clms in the above action are hereby dismissed with prejudice by all parties. 2)3)4)5) See order for the details. (emphasis added). 23. On January 28, 2000, the parties entered into a Settlement Agreement, as Ordered by the Stipulation. The Settlement Agreement contains exactly the same terms as the Stipulation. 24. The Settlement Agreement was executed by Donald Eshleman, President of Pennsy Supply, Inc., and his signature was witnessed by Matthew M. Haar, Esquire, an attorney with Saul Ewing who also represented Pennsy in this matter. 25. The language of both the Stipulation approved on January 18, 2000 and the Settlement Agreement dated January 28, 2000 is clear and explicit. 7 IV. Breach of the Stipulation of Dismissal and the Settlement Agreement and General Release 26. Movants have learned that on July 11, 2007, Pennsy Supply sold the 1607 Industrial Drive property that was at the heart of the original dispute and is subject to Mr. Mumma's right of first refusal pursuant to the Settlement Agreement to Turner, as evidenced by Special Warranty Deed recorded in Cumberland County Record Book 280, Page 4684. A copy of the Deed is attached hereto as Exhibit "D." 27. The deed from Pennsy to Turner contains a restrictive covenant that the property conveyed by the deed is not to be "the site or location of, the manufacture or production of concrete." 28. The Realty Transfer Tax Statement of Value accompanying the Special Warranty Deed appears to have been signed by Michael A. Finio, Esquire, Saul Ewing. A copy of the Realty Transfer Tax Statement of Value is attached hereto as Exhibit "E." 29. Pennsy's receipt of Turner's offer to purchase the property, which Pennsy was willing to accept, required Pennsy to notify Mumma of its receipt of a 8 bona fide offer to purchase the property from a third party and triggered Mumma's right of first refusal. 30. Neither Pennsy Supply nor its counsel gave Robert M. Mumma, II any notice of the receipt of an offer to purchase the property by Turner. 31. The sale of the property at 1607 Industrial Drive, Carlisle, Pennsylvania to Turner on July 11, 2007 without notice to Mumma was a direct violation of the terms of both the Stipulation and the Settlement Agreement. 32. Pennsy's violation of the Stipulation and the Settlement Agreement deprived Mumma of the opportunity to exercise his right of first refusal and acquire the property. 33. Mumma wishes to exercise his rights and to acquire Pennsy's entire right, title and interest in the property, as required by the terms of the Stipulation and Settlement Agreement. 34. Mumma seeks specific performance of the Stipulation of Dismissal and the underlying Settlement Agreement and General Release through this Honorable Court, which explicitly retained jurisdiction in this matter as set forth in the settlement documents. 35. Mumma is willing to match the purchase price paid by Turner. 9 36. As a result of Pennsy's violation of the terms of the Stipulation and Settlement Agreement, Mumma has suffered as yet undetermined damages on account of his inability to acquire the 1607 Industrial Drive property in July of 2007 and to operate a portion of his concrete manufacturing and supply business from that location. 37. Pennsy Supply was represented by the Law Firm of Saul Ewing in the sale of the 1607 Industrial Drive property to Turner, specifically Michael A. Finio, Esquire and Matthew Haar, Esquire. 38. Pennsy Supply and their counsel, the Law Firm of Saul Ewing, specifically including but not limited to Michael A. Finio, Esquire and Matthew Haar, Esquire, knew the terms and conditions under which the above-captioned litigation was dismissed and that the property at 1607 Industrial Drive, Carlisle, Pennsylvania was encumbered by Mumma's right of first refusal. 39. Jurisdiction to enforce the Stipulation and the Settlement Agreement remains with this Honorable Court pursuant to paragraph 4 of the Stipulation of Dismissal dated January 18, 2000. 40. Respondent Pennsy's conduct and that of its counsel in breaching the terms and conditions of the Stipulation and Settlement Agreement requires the enforcement of the obligations of the Settlement Agreement and warrants the 10 imposition of sanctions against Pennsy Supply, Inc. for contempt and also for the payment of Mumma's losses and expenses, including attorneys' fees, incurred as a result of the violation of the Settlement Agreement and General Release and the Stipulation of Dismissal and their enforcement through this action. V. Notification of Breach 41. On September 20, 2007, Mumma's counsel notified Michael Finio, Esquire that Pennsy Supply, Inc. was in breach of the Settlement Agreement and the Stipulation of Dismissal. A copy of said Notice is attached hereto as Exhibit "F." 42. By correspondence dated September 27, 2007 Mr. Finio advised counsel for Mumma that he was "not directly involved in the litigation," that Mr. Donweber and Ms. Wagner, "who helped to close the 2000 transfer from Randolph to Pennsy" are no longer associated with Saul Ewing, and that he was "investigating the issues" raised in counsel for Mumma's September 20, 2007 Notice. A copy of Mr. Finio's letter is attached hereto as Exhibit "G." 43. There has been no further response from Attorney Finio regarding this matter since his letter of September 27, 2007. 11 44. On October 3, 2007 counsel for Mumma spoke with No Otto, Esquire, counsel for Turner, and advised him of the alleged breach of the Settlement Agreement and Stipulation of Dismissal by Pennsy. VI. Joinder of Danny L.Turner 45. The property was indexed as lis pendens on February 19, 1998 in the Cumberland County Court of Common Pleas at No. 98-950 CIVIL. 46. On information and belief, the existence of the indexed lis pendens was known to Danny L. Turner and/or his counsel prior to the time Danny L. Turner purchased the property from Pennsy Supply, Inc. on July 11, 2007. 47. At no time did Danny L. Turner or his counsel contact Mumma to ascertain the status of the dispute that led to the indexing of the lis pendens. Had they done so, they would have been advised that the settlement agreement that led to the discontinuance of the litigation clearly provided Mumma with a right of first refusal, which he was prepared to exercise. 48. Turner knew or should have known that the 1607 Industrial Drive property was subject to Mumma's right of first refusal. 49. In order for this court to properly enforce the Stipulation of Dismissal and the Settlement Agreement and General Release, Turner should be 12 joined as an Additional Respondent so as to subject him to the jurisdiction of the Court. WHEREFORE, Movants respectfully request that this Honorable Court issue an Order that: (a) Joins Danny L. Turner as an Additional Respondent to this action, subjecting him to the jurisdiction of this court; (b) Holds Pennsy Supply, Inc. in contempt for failing to notify Mumma of the receipt of a bona fide offer from a third party to purchase the property at 1607 Industrial Road, Carlisle, Pennsylvania, which would have triggered Mumma's right of first refusal; (c) Voids the transaction by which Pennsy purported to convey the property to Turner; (d) Orders Pennsy Supply, Inc. to convey all of its right, title and interest in the 1607 Industrial Drive property to Mumma or Mumma's designee within 90 days of the Order upon payment by Mumma to Pennsy of $430,123.00; (e) Imposes sanctions upon Pennsy Supply in the amount of all transfer taxes, title fees, legal fees, costs and other expenses incurred by 13 Mumma in conjunction with the acquisition of the 1607 Industrial Drive property from Pennsy; (f) Schedules a hearing at which time Mumma may establish all consequential damages, including but not limited to lost profits and lost opportunity suffered as a result of Pennsy's breach of the Settlement Agreement; (g) Imposes sanctions on Pennsy in the amount of all damages suffered by Mumma; (h) Orders Pennsy to pay all attorneys' fees and costs incurred by Mumma in enforcing the Settlement Agreement, acquiring the property and establishing damages; and 14 (i) Grants whatever additional relief, including additional monetary sanctions against Pennsy Supply, Inc. and/or its counsel as this Honorable Court deems just and appropriate. Respectfully submitted, /s/ Linda J. Olsen Thomas W. Scott, Esquire Attorney I.D. No. 15681 Linda J. Olsen, Esquire Attorney I.D. No. 92858 KILLIAN & GEPHART, LLP 218 Pine Street P. O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 Date: December 19, 2007 Attorneys for Movants 15 Exhibit "A" JAN . peggy? ? 8 ?g99 ? . pvey B c??Ak Vicki L. Fox, RMR Official Reporter. TI A- f._ e..[ ... i:ruuvu X% IN THE UNITED STATES DISTRICT COURT ,FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ROBERT M. MUBBLk r' 11, GRANTOR. RETAINED ANNUITY TRUST; ROBERT M. MUMMA, II; and SUSAN MUMMA, Plaintiffs v. CIVIL ACTION NO. 1:CV-9'8-087 BENEDICT B. RANDOLPH, Defendant V* PENNSY SUPPLY, INC., : Intervenor/Defendant TRANSCRIPT OF PROCEEDINGS SETTLEMENT HEARING BEFORE: HON. SYLVIA H. RAMBO.. Judge DATE: January 18, 2000 PLACE: Courtroom Number Three Federal Building 'Harrisburg, Pennsylvania COUNSEL PRESENT:. DAVID S. BRADY, Esquire _For - Plaintiffs STEPHEN M. DONNEBER, Esquire CHRISTINE STICKLER, Esquire For - Intervenor Defendant 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Good morning, everyone. MR. DONWEBER: Good morning, Your Honor. Your Honor, Stephen Donweber representing Pennsy Supply. THE COURT: Yes, sir. MR. DOWEBER: Your Honor, it is with pleasure and I must admit some mild surprise that I report to the Court that the parties to this action have settled all of their claims. In that vein, Your Honor, I would very much like to read the stipulation of dismissal into the record. That includes the basic terms of the settlement. And then also confirm on the record the authority of the respective attorneys to settle on behalf-of their clients. THE COURT: We don't have a representative for either of them here; correct? MR. DONWRBER: Not Mr. Mumma. MR. BRADY: Your Honor, I am here for Robert Mumma. I am David Brady. THE COURT: I know, Mr. Brady. I ft just concerned. Mr. Mumma in the past is now pursuing his attorneys. I am concerned that I don't have him personally here. Let's go. MR.•DONWEBER: Your Honor, if.David could confirm on the report that he had the authority of his client to settle this case. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 THE COURT: I don't doubt his word for that. MR. BRADY: Yes. I do have his authority to settle for this-terms of the Donweber letter that was exchanged last week. THE COURT: Okay. Let's go ahead. MR. DONWEBER: Thank you very much, Your Honor: (reading) Pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure, the parties to the'above action hereby stipulate and agree as follows: (end of reading) THE COURT: Slow down now for the record. MR. DONWEBER: Thank you. (Reading] All claims in the above action are hereby dismissed 'with prejudice by all parties;. 2. All claims in the above action have been settled on the following basis: (a) Pennsy Supply, Inc. will purchase the property at 1607 Industrial Drive in Carlisle, Pennsylvania from Ben Randolph for $300,000.00. At settlement, the proceeds of this payment shall be divided as follows: $217,5,00.00 shall. be paid to Benedict Randolph and $82,500.00 shall be paid to the Robert.M. Mumma, II Grantor Retained Annuity Trust in care of Robert M. Mumma, II Trustee. Pennsy Supply will get title and the deed to the Carlisle property at 1607 Industrial Drive.. Closing on this transaction shall be completed within twenty days of execution of a final 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 settlement agreement with regard to this action. (b) Pennsy also gave Robert M. Mumma, II a right of first refusal to purchase the property at 1607 Industrial Drive which will be triggered on Pennay's future receipt of a bona fide offer to purchase the property from a third party which-Pennsy is willing to accept. Pennsy will give Mumma twenty days to exercise this right and ninety days to close from the date of exercise. ' This dismissal is contingent upon payment of the proceeds of sale as outlined herein. A mutually agreeable settlement agreement shall be executed-by the parties within ten days of the date of this stipulation. This Court shall retain jurisdiction to enforce• this stipulation end the underlying settlement agreement in this action. Failure to comply with the terms of this stipulation will result in proceedings for contempt against the non-complyiAg party. (end of reading) THE"COURT: I am not too sure about that. I think there has been a recent Third Circuit case that says the Court does not have to retain jurisdiction to enforce a settlement. I will check it out. Let's go back over that. Settlement agreement is to be-finalized when? MR. DONWEBER: The settlement agreement will be 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16' 17 18 19 20 21 22 23 24 25 finalized within ton days of the date of this stipulation, Your Honor. THE COURT: The stipulation is dated when? MR. DONWEBER: The stipulation is dated today. THE COURT: Okay. Go ahead. MR. DONWEBER: Thank you, Your Honor. And the finial paragraph is simply that the parties respectfully request the approval of the Court of this stipulation. Your Honor, I have facsimile signatures from Steve Fishman. I expect the original signature in my office when I return. I have an original signature from Mr. Brady, and my original signature is on this document. We intend to file this document as of record this afternoon. Thank you very much, Your Honor. THE COURT: Mr. Brady? MR. BRADY: Yes,.Your Honor. I have heard Mr. Donweber read the terms of the stipulation, and those are correct. THE COURT: I wonder if the Court could have a copy of the stipulation. MR. DONWEBER: Of course,.Your Honor. May I approach? THE COURT: Yes, you.may. Give it to Mark. Mr. Brady, may I have on the record what authority you have to enter into this for Mr. Mumma? 6 1 2 3 4 5 6 7 8- 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 :25 MR. BRADY: Yes.. I had discussions with Mr.. Mumma by telephone on Friday. I received a fax from him. I believe it is dated 1/14 of 2000 at 16:05 hours or 16:09. It is on a MacIntosh -- faxed from a fax board of a computer so it does not carry a signature. However, it states David, you have my authority to settle Randolph matter per the terms of the Donweber letter. THE-COURT: Be sure to hold on to that fax. MR. BRADY: Yea, Your Honor. THE COURT: Since it requires my signature, perhaps I should have the original. MR. DONWEBER: Of course, Your Honor. The original signature from THE COURT: No, no, the original stipulation. Is there an original stipulation somewhere? MR. DONWEBER:. Yes, Your Honor. THE COURT: Because it requires my signature, and 'that should be the one that goes on the record. MR. DONWEBER: Absolutely, Your Honor. I am still. awaiting an original signature, however, from Steve Fishman I was planning on filing the original document this afternoon. with the Court. THE COURT: That's fine. I will sign it then when I get the original. MR. DONWEBER% Terrific. . a 7 1 2 3 4 5 5 7 8 9 10 li 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE-COURT: Do you want that sealed or anything; is there any need for that? MR. DONWEBER: There is no need from my.client's perspective, Your Honor. MR. BRADY: I think I would request that it be sealed. THE COURT: I will do it for a limited period of time because once the records are transferred, we have to unseal everything, once they are sent to the Records Center. All right? Is there anything further? MR. DONWEBER: Nothing here, Your Honor. THE COURT: I am going to close the case even though it says that I am to retain jurisdiction. MR. DONWEBER: I understand, Your Honor. .THE COURT: Anything further from anyone else? MR. BRADY:. That is all, Your-Honor. MR. DONWEBER: That is all, Your Honor. THE COURT: I thank.you for your efforts in resolving this matter. it means a great deal to me. Thank you very much. MR. DONWEBER: Thank you very much, Your Honor. MR. BRADY: Thank you very much, Your Honor. THE COURT: Court is adjourned. THE CLERK: Court is adjourned. (Whereupon, the proceedings were concluded.) a 8 1 2 3 .4 5 6 7 8 9 10 11 12 13 14 i5 16 17, 18 19 20 21 22 23 24- 25 T hereby certify that the proceedings and evidence are contained fully and accurately in the notes taken-by me on the trial of the above cause, and that this copy•is a correct transcript of the same. Vicki L. Fox, RMR Official Reporter The foregoing certification of this transcript does not apply to any reproduction by any means unless under the direct control and/or supervision of the certifying reporter. Exhibit "B" 4k F 'M Exhibit "B" V r Il? IN THE UNITED STATES DIS OURT FOR THE MEDDLE DISTRICT OF PENNSYLVANIA ROBERT M. MUMMA, II, GRANTOR RETAINED ANNUITY TRUST; ROBERT M. MUMMA,11; and SUSAN MUMMA NO. P-0087 Plaintiffs, R./'?'l Uer v. BENEDICT B. RANDOLPH Defmxbnt, V. JAN 18 2000 PENNSY SUPPLY, INC.., Intervenor/Defendant. i the above action hereby stipulate and agree as follows: Pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure, the parties to 1. All claims in the above action are hereby dismissed with prejudice by all Pin; STIPULATION OF DL'31VIISSAL 2. All claims in the above action have been settled on the following basis: a. Penny Supply, Inc. will purchase the property at 1607 Industrial Drive in Carlisle, Pennsylvania from Ben Randolph for $300,000. At settlement, the proceeds of this payment shall be divided as follows: $217,500 shall be paid to Benedict Randolph and $82,500 shall be paid to the. Robert M. Mumma, H Grantor Retained Annuity Trust in care of Robert M. Mumma, H Trustee. Pennsy Supply will get title and the deed to the Carlisle property at 1607 Industrial Drive. Closing on this transaction shall be completed within twenty (20) days of execution of a final settlement agreement with regard to this action. cardw from the rem d .pate 41 Mary E. WAWNW, . PW Clerk b. Penusy will also give Robert M. Mumma, H a right of first refusal to'purchase the property at 1607 Industrial Drive which will be triggered on Penny's future receipt of a bona fide offer to purchase the property from a third party which Penney is willing to accept. Penny will give Mumma twenty (20) days to exercise this right and ninety (90) days to close from the date of exercise. 3. This dismissal is contingent upon payment of the proceeds of sale as outlined herein. A mutually agreeable settlement agreement shall be executed by the parties within ten days of the date of this Stipulation. 4. This Court shall retain jurisdiction to enforce this Stipulation and the underlying settlement agreement in this action. 5. Failure to comply with the terms of this Stipulation will result in proceedings for contempt against the non-complying.party. -2- 5. The parties* respectfully request the approval of the Court of this Stipulation- David David S. Brady, Esquire 4 Central Boulevard Camp Hill, PA 17011 Attorney for Pldndffs Dated: 'A? kw,.,,Z Michael A. F!Wo, Esquire Stephen M. Donweber, Bsgdire Attorney ID Nos. 38872 & 71170 Saul, Ewing, Renick & Saul LLP Penn National Insurance Tower 2 N. Second Street, 7th Floor Harrisburg, PA 17101 Attorneys for Pennsy Supply, Inc. Dated: I-- IV - CM APPROVED: . SYLVIA . RAW Wited States District Judge Steven J. Fishman; Esquire Fishman & Morganthai 95 Alexander Spring Road, Suite 3 Carlisle, PA 17103 Attorney far Benedict Randolph Dated: N' k??'O JAN BJnal PA 28 .Au br,? ?+?/?1k -3- 1 ' L/Li;\J i? i . • V V i ? i4 • tliVL VV=I V iY1 E1Li Y; i'7j\ . 6. The parties respectfi:lly request the approval of the Court of this Stipulation. David S. Brady, Esquire 4 Contml Boulevard Camp Hill, PA 17011 Ammey,for Plana fs Dated: Michad A. Finio, Esquire Steph= M...Domeber, Equix Attornay ID Nos. 38873 & 71170 Saul, Bwhl& Renick & Sala LLP ream National In=WW Tower 2 N. Socoad Str c4 7th Floor EkTig g, PA 17101 Atior mpjbr Penney Sappily, etc, Dated: APPROVED: -ted States Dist Anorney for Bm&a Randolph . MVIA H. =Judge Dated: -3- Fishman & Morganthal 95 Alounder Spring Road, Suite 3 Carlisle, PA 17103 6. The parties mspectfltlly request the approval of the Court of this Stipulation. David S. Brady, Steven J, Fishman, Esquire C" Stcpben Hill, M. PA 17011 Donweber. Esquire 95 Alexander Spring Road, Suite', Dated: Dated: Saul, Ewing, Rarruck & Saul UP 1P?esm National bmurance, Tower 2 N. Second Street, 71h Floor Harrisburg, PA 17101 Carlisle PA 17103 • ,ar Platnt? . ' Attorney, far Bnredict Rxnd?vlph 4 CentrMichaelal A. Fnio, Boulevard Esquire Fishmma•& Iviorgardhal AAttorncyttorney ID Nos. 38872 & 71170 Atmrnays jbr Pemtsy &4ply, bm Dated: APPROVED: ete VIA H. a District Judge -3- . UNITED STATES DISTRICT COURT FOR THE , MIDDLE DISTRICT OF PENNSYLVANIA * * MAILING CERTIFICATE OF CLERK * * . Re:- 1:98-cv-00087 Mumma v. Randolph True and correct copies of the attached were mailed by the clerk to the following: David S. Brady, Esq. 4 Central Boulevard Camp Hill, PA 17011 Fax No.: FAX 717-330-2082 Steven J.•Fishman, Esq. O'Brien, Baric & Scherer 17 West South Street Carlisle, PA 17013 Michael A. Finio, Esq. Saul, Ewing, Remick & Saul, LLP Penn National Insurance Tower 2 North Second Street, 7th Floor Harrisburg, PA 17101 Patricia A. Trujillo, Esq. Saul, Ewing, Remick & Saul., LLP Penn National.Insurannce Tower 2 North Second Street, 7th Floor Harrisburg, PA 17101 Stephen M. Donweber, Esq. Saul, Ewing, Remick & Saul LLP Penn National Insurance Tower 2 North Second Street, 7th Floor Harrisburg, PA 17101 A CC: Judge Magistrate Judge U.S. Marshal Probation U.S. Attorney Atty. for Deft. Defendant Warden Bureau of Prisons Ct Reporter Ctroom Deputy Orig-Security Federal Public Defender Summons Issued Standard Order 93-5 Order to Show Cause Bankruptcy Court Other ) } ) } with N/C attached to complt. and served by: U.S. Marshal C ) Pltf's Attorney ( ) with Petition attached & mailed certified mail to- US Atty Gen ( ) PA Atty (den DA of County ( ) Respondents ( ) MARY E. D'ANDREA, Clerk DATE : /.- Lr' 0 0 BY: I-L eputy, er Exhibit "C" Exhibit "C" PLEASE READ CAREFULLY BEFORE SIGNING SETTLEMEN'T' AGREENIEN7 AND GENERAL RELEASE THIS SETTLEMENT AGREEMENT AND GENERAL RELEASE ("this Agreement"), consisting of seven (7) pages, is entered into this 28th day of January. 2000. by and aruong Robert M. Mumma. 11, Susan Mumma. the Robert M. Mumma, 11, Grantor Retained Annuity Trust ("Plaintiffs"): Benedict B. Randolph ("Randolph"); and Pennsy Supply, Inc. ("Pennsy"). RECITALS On January 16, 1998, Plaintiffs filed this action, captioned as Robert M. Mumma, It. Susan Mumma. and the Robert M. Mumma. 11, Grantor Retained Annuity Trust v. Benedict B. Randolph. No. 98-CV-87 (M.D. Pa.), in the Middle District of Pennsylvania ("this litigation"). This litigation sought specific performance (or.-in the alternative, damages) of a December 18. 1995 Letter of Intent between the Grantor Retained Annuity Trust CURAT") (as buyer) and Benedict Randolph (as seller) to convey property at 1607 industrial Drive in Carlisle, Pennsylvania. On February.22, 1999, Pennsy was granted.leave to intervene in this litigation as of right, arguing that enforcement of the Letter of Intent would violate other agreements to- which both Pennsy and Mr. Mumma (or entities controlled by him) were party. Pennsy also asserted claims against Randolph for specific performance of its right of first refusal, and against Mr. Mumma for fraud. PLEASE, READ CAREFULLY BEFORE SIGNING All parties deny the allegations set forth in the claims asserted by and against one another in this litigation. Nevertheless, Plaintiffs, Pennsy, and Randolph mutually desire to provide for the terms and conditions under which the parties shall be fully released from all liabilities, and any of them, arising out of or otherwise relating to this litigation. IT IS AGREED: 1. The Recitals set forth above are incorporated into and made a part of this Agreement; 2. All claims asserted in this litigation by all parties are hereby dismissed with prejudice by all parties, 3. In consideration of the general releases set forth below, a. Pennsy Supply. Inc. will purchase the property at 1607 Industrial Drive in Carlisle, Pennsylvania from Ben. Randolph for $300.000. At settlement, the proceeds of this payment shall be divided as follows: $217,500 shall be paid to Benedict Randolph and $82.500 shall be paid to the Robert M. Mumma, li Grantor Retained Annuity Trust in care of Robert M. Mumma, it Trustee. Pennsy Supply will get title and the deed to the Carlisle property at 1607 Industrial Drive. Closing on this transaction shall be completed within twenty (20) days of execution of this Agreement. b. Pennsy hereby gives Robert M. Mumma, Il a right of first refusal to purchase the property at 1607 Industrial Drive which will be triggered on Penny's future receipt of a bona fide offer to purchase the properry from a third party which Pennsy is -2- PLEASE READ CAREFULLY BEFORE, 'SIGNING willing to accept. Mumma will have twenty (20) days fi•om the date ofreceipt of Pennsy's notice to exercise this right and ninety (90) days from the date of exercise to close. 4. Releases a. Robert M. Mumma, II, Susan Mumma, and the Robert M. Muruna, ii, Grantor Retained Annuity Trust ("Plaintiffs"), each on his/her/its own behalf and on behalf of his/her/its owners, principals, shareholders, partners, directors, officers, members, employees, agents. beneficiaries, successors and assigns, and each of them, fully releases and forever discharges Benedict B. Randolph and Pennsy Supply, Inc., his/its owners, principals, shareholders, partners, directors, officers, members, employees, agents. beneficiaries, successors and assigns, and each of them, from any and all manner of claims. demands, causes of action, costs, attorneys fees, liabilities and other claims of every kind and nature whatsoever, which they now have, ever had, or may hereafter have, against any and all of them, arising by virtue of acts or omissions arising out of or otherwise relating in any manner whatsoever to this litigation set forth in the Recitals herein. This release is a full and complete general release relating to the subject matter of this Agreement, and it shall remain in effect despite any subsequent discovery of facts in addition to or different from those which the parties now know or believe to be true. b. Benedict Randolph, on his own behalf and on behalf of his employees, agents, beneficiaries, successors and assigns, and each of them, fully releases and forever discharges Plaintiffs and Pennsy Supply. Inc., their owners, principals, shareholders, partners, directors, officers, members, employees, agents, beneficiaries, successors and -3- PLEASE READ CAREFULLY BEI+4RE SIGNING assigns, and each of them, from.any and all manner of claims, demands, causes of action, costs, attorneys fees, liabilities and other claims of every kind and nature whatsoever, which he now has, ever had, or may hereafter have, against any and all of them, arising by virtue of acts or omissions arising out of or otherwise relating in any manner whatsoever to this litigation set forth in the Recitals herein. This release is a full and complete general release relating to the subject matter of this Agreement, and it shall remain in effect despite any subsequent discovery of facts in addition to or different from those which the parties now know or believe to be true. C. Pennsy Supply. Inc., on its own behalf and on behalf of its owners, principals, shareholders, partners, directors, officers, members, employees, agents, beneficiaries. successors and assigns. and each of them. fully releases and forever discharges Benedict B. Randolph and Plaintiffs. their owners, principals, shareholders, partners, directors, officers, members, employees, agents, beneficiaries, successors and assigns, and each of theta, from any and all manner of claims, demands, causes of action, costs, attorneys fees, liabilities and other claims of every kind and nature whatsoever, which it now has, ever had, or may hereafter have, against any and all of them, arising by virtue of acts or omissions arising out of or otherwise relating in any manner whatsoever to this litigation set forth in the Recitals herein. This release is a full and complete general release relating. to the subject matter of this Agreement, and it shall remain in effect despite any subsequent discovery of facts in addition to or different from those which the parties now know or believe to be true. -d- PLEASE READ CAREFULLY BEFORE SIGNING d. The above releases are limited only to the subject matter of this litigation and shall not apply to any other litigation currently pending between or among the above parties. 5. This settlement is contingent upon payment of the proceeds of sale as outlined herein. 6. Failure to comply with the terms of this Settlement Agreement will result in proceedings for contempt against the non-complying party. 7. All parties aver that they have carefully read and clearly understand the meaning of this Settlement Agreement and General Release. All parties agree that this Settlement Agreement and General Release is to be interpreted under and governed by Pennsylvania law, and intend to be legally bound by its terms. All parties were provided with this Settlement Agreement and General Release several days before being asked to sign it and have had the opportunity to discuss it with a lawyer and/or with any other person or persons of their choosing. 8. The individuals who execute this Settlement Agreement and General Release represent and warrant that: (i) they are duly authorized to execute this Settlement Agreement and General Release, and (ii) no other signature, act or authorization is necessary -5- PLEASE READ CAREFULLY BEFORE SIGNING to bind such entity to the provisions of this Settlement Agreement and General Release. 5 f lLi? { v?G'G'( t: t 'fir rr.?7.ry< ?tl?t???C?7? .4 t?E???err S ?r ???? r' t' rr?C ? t?-r? vrl ???c?t%, !xcf rcat?Gf? t??.4.? firf`rflrC? Gl.?'z ? ?i., 5%tli? !h ra'eYrr?fGF ? tn:c'r1f . 5?t .Cf ce7-ts)hALK !r'i'ke !t•?t,c}? -lam (.ri S 7 Signed, Executed and Delivered by: Signed, Executed and Delivered by: ROBERT M. MUMMA, II, SUSAN PENNSY SUPPLY, INC. MUMMA, THE ROBERT M. MUMMA, 11, GRANTOR RETAINED ANNUITY TRUST (Name - tmumn) (Name - PLMEM.,r) we - t (Title - Kam mr) Witness: S. Brady, Esquire Dated: r t--- Stephen M. Donweber, Esquire Dated: -6- FROM Md)6 UINGP"E NO. : 9310274 Jan. 10 2000 09:24AM F? • res ti? ed N7,3? aM " L, c I. yu u : Uo PAQ1 00810 R1$htFAX P. MASE o Cd1tBF(j L QR?fAglt wvn. off] ,y SIPd, lowild aid DWhw d by: BLMDICT H, RAMLPH a a .G Mrs wkma-, C?? ?, do ,*t: W,,. .,. Exhibit "D" . Exhibit "D" 0 Parcel NSO-08-0519-014C 1 08---RT P. ZIEGLER SPECIAL WARRANTY DZBMCORDgR OF DEED. C MSERUM15 C01J11TY-1 THIS INDENTURE is made the _,(L day of July in* 7a A& on . "'Or (2007) between PENNSY SUPPLY, INC., a Pennsylvania Corporation (herem called the Creator), of the one part, and DANNY L. TURNER, of Cumberland County, Pennsylvania (hereinafter called the Grantee), of the other pact. WITNESSETH, that the Grantor, for and in opnsideration of the sum of One 001100 (1;1.00) lawful money of the United States of Amerlcs u iM it wo and truly paid by the Orantee, at or before the sealing and delivery hereo& the receipt whereof is 'wmwledged, has granted, bargained and sold, aliened, enfeoffed, released and confirmed, and by does grant, bargain and sell, alien, enfeflft release and confirm unto the omtee his heirs assigns, ALL THAT CERTAIN lot or parcel of land situate in the Borough of Carlisle, County of Cumberland and Commonwealth of Pennsylvania, bounded and described as set forth in the legal description attached to this Deed as Exhibit "A" and incorporated by reference. . UNDER AND SUBJECT to all conditions, easements, rights of way, agroe wts, covenants, liens, reservations, exceptions, restrictions and other encumbrances of record, to the extent still valid, subsisting and enforceable. FURTHER UNDER AND SUBJECT to the covenant and agreement that the teal property conveyed in this deed shall not be used for, nor shall said real property be the sine or location of, the manufactm or production of concrete. This covenant and agreement "I be perpetual, shall be binding upon Grantee and Grantee's heirs and assigns, shall tan with the land and shall be enforceable by Grantor and its successors and assigns. TOGETHER with all and singular the improvements, ways, streets, allays; driveways, passages, waters, water-courses, rights, liberties, privileges, hereditanwats and appurtenances, whatsoever unto the hereby granted premises belonging, or in any wise appertaining, and the reversions and remainders, rents, issues, and profuts thereot and all ft estate, right, title, interest, property, claim and demand whatsoever of it, the Orantor, in law, equity, or otherwise howsoever, oC in and to the same and every part thereof. TO HAVE AND TO HOLD the said lot or piece of ground above described,with the buildings and improvements thereon erected, hereditaments and premises hereby granted, or mentioned and intended so to be, with the appurtenances, unto the Graatee his heirs and assigns, to and for the only proper use and behoofof the Grantee, his heirs and assigns forever. UNDER AND SUBJECT, as aforesaid. 134114.11M MM 1 6009 280 PAIE4684 A r AND the Grantor, for itself and its successors and assigns, does covenant, promise and agree, to and with the Grantee We heirs and a"*=, by these presents, that it, the Grantor, and its successors and assigns, all and singular the henditumts and premisa s hereby granted or mentioned and intended so to be, with the appurftances, unto the Grantee, his heirs and assigns, against the Grantor and its successors and assigns, and against all and every person and persons whomsoever lawfully claiming or to claim the moo or any part thereof, by, from or under it or any of them, shall and will, subject as aforesaid, SPECIALLY WARRANT and forever DEFEND. IN WITNESS WHEREOF, the Grantor has hereunto set its corporate hand and seal. Dated the day and year first above written, SIGNED AND DELIVERED IN THE PRESENCE OF: ATTEST: By: Prints N Derv S. erslice Title: PENNSY SUPPLY, INC. By: 17 2az_ Print Name: O. Good Title: Via ideal iHSiu moro, 2 560K 2$0 PACE4685 . 4 COMMONWEALTH OF PENNSYLVANIA SS COUNTY OF /-Arwy??? On this // day of July 2007, before me a Notary Public in and for the Commonwealth of Pennsylvania, the undusigned officer, persoaally appeared Randy 0.Oood, who acknowledged himself to be the Vice President of Pennsy Supply, Inc. a corporation;, and that as such officer, being authorized to do so, executed the foregoing instrument for the purposes therein contained by signing the name of the corporation by himself as such officer. In Witness Wha vof, l hereunto set mry official seal. SEAL) ?wen? orta?sx?ver?uNataty Public NOTAML W V-.wd j, Quo, Notary Public My Commission Expires: cdiiii&?aowb: almbarhoe ? W eanow0fi peoaakr10.20t0 The address of the within-named Grantee is: MXVkFAC;Mi 1Sfe 1OA ( r)aE,-R ,,64,C, 5 13y: c Attorney for Grantee ?. ?::.....;L rccurded l ertand County PA Recorder of Deeds 114314.1 NIOW BOOK 280 PAOE4686 Exhibit "A" ALL THAT CIMTAIN piece or parcel of land situate in the Borough of Carlisle, County of Cumberland and Commonwealth of Pennsylvania designated aS Parcel No. 7 on a certain Land Subdivision Plan for Ritner Park Associates, recorded on March 16, 1984 in Cumberland County Plan Book 45, Page 46, bounded and described in accordance with said Land Subdivision Plan, as follows, to wit: BEGINNING at a point on the eastern boundary line of Industrial Drive (a 60' wide right of way containing a paved cartway having a width of 361, more or less); and at the northwestern comer of Parcel No. 2 on said Land Subdivision Plan; thence extending from said beginning point along the eastern boundary line of Industrial Drive North 17 degrees 50 minutes 30 seconds West a distance of 208.13 feet to a point on the southern line of Parcel No. 3 on the above referenced Land Subdivision Plan; thence along said boundary line North 72 degrees 9 minutes 30 seconds But a distance of 500 feet to a point along lands now or formerly of Carlisle Syntex Systems; thence along said boundary line South 17 degrees 50 minutes 30 seconds Past a distance of 208.13 feet to a point at the nordieasttrn corner of Parcel No. 2 on said Land Subdivision Plan; thence along said Parcel No. 2 South 72 degrees 9 minutes 30 seconds West a distance of 500 feet to a point, being the point or place of BEGINMNG. CONTAINING 2.389 acres, more or less. BRING the same premises which Benedict B. Randolph by deed dated February 9, 2000 and recorded February 10, 2000 in Cumberland County Record Book 216, Page 64, granted and conveyed unto Pennsy Supply, Inc., Grantor and Party of the First Part herein. M N 17+114.1111WW «. uu tv o : f9 4 N b BGOK 28 FACE4687 Exhibit "E" Exhibit "E" wsli')6T 7,X 46-94) • itfco QNIr fLM Tit h6 REALTY TRANSFER TAX t COwatONtntA IHOFMMN friVAA7A STATEMENT OF VALUE nv w DiAiT IMMatanvarM aVaaAVa aamraouu rAxts .? M MAR&MMIUM .it6MMAIMt SMRmmfor.it0uctlons Comphte each secd? and Rile in 4WHcne with Recorder of Deeds when (1) the Nil vdndoondderalian is not set bib in tltt deed, (2) when the deed is without ecusideratica, or by fly or (3) a tax exemplioa Is claimed. A Statomoat of Value is sot required if the Mailer is wholly exempt from tax All tnqufrks may be h idml A. Finio, Esquire Am Code (717) 23$-7671 Strost Address city Ste% • Zip Cods -- 2 North Second Street 7 h flooT HaMobura PA 17101 -F-T-PA-RSFER DATA DwafmospiamelDoccon" d"Ift* 6) Srvatu(s)/Ltasa(a1 P Su ,Inc- Damn L. Tumor StrestAddraw Street Ad&W 1001 Paxton Strect City 310te Ceae City "0 zip Code ftwm PA 17104 PA Q VAN or intatatt succession a Transfer to rmwriat Devabpment Agency. pw"Of BMW 0 Transfer to a Trust. (Attach cowfiete copy of trust agreawat tdendfyhp ail beneficiaries. Q Transfer between prbneipol and agannt, (Attach conpkte copy of aganey/4" party agreement.) Q Transfers to the Com"Wenith, the United stow and Instrtaa MIltifa by 9114. dedication, condenwnation or in ku of cmndem eion. W condann aff" or In ku of cmndeaaotk% attach a copy of resolution) 0 Transfer from nart9W to a hoWer of a nw rtgW ie default. Mortgage gook Nwaber Pops Mpow Q Corrective or confirmatory deed. (Attach complete copy of the prior deed being corrected or confers ed.) Q Statutory corporate cansotidotion, merger or division (Attach copy of articiiesi Q Other OPlem explain exemption claimed, if ether than lWadab m) L Wsr psnolths of low, I declare that i have ex oMW this Statemet, Inckoft s"t smq * g htfmgwt ilm . and to best of mty l Avkdye and belief, it is trus, and atarplete. or 11067/11/07 17 FAILURE TO COM!'LETE 1N15 FORM PRfW4 OR ATTACH AFPLICMLE DOCtA+jWrAWW MAY RoUt.T w THE RECORDEtt S aF3lSAL ro RECORD THE DEED. WK 280 FACE4688 Exhibit "F" Exhibit "F" THE LAW FIRM of THOMAS W. SCOTT KILLIAN & GEPHART, LLP MATEMM. FAUST- JANBGOWENPENNY 218 PINE STREET CZ000."05) TEn.WCBJ. MCGOWAN P. O. BOX 886 MI UELJ.O'CONNOR' HARRISBURG, PENNSYLVANIA 17108-0886 OfCow ah [ INDA J. 01SIN JOHN D. S[LIdAN ROBERTI DANM S'" TJ31 PHONE (717) 232-1851 SUM B.OBPHART . MARYEAND BAR FAX NO. (717) 238-0592 «MBW MEY BAR wwwAffliangepbart wm NOTICE September 20, 2007 VIA HAND DELIVERY and CERTIFIED MAIL Michael A. Finio, Esquire Saul Ewing, LLP Penn National Insurance Tower 2 North Second Street, 7th Floor Harrisburg, PA 17101 Re: Robert M. Mamma. II -Grantor Rd&tnd Annuity. Treat; Robert M. Mumma. II_andSusan Mumma v. Benedict B. Ran?o?p IV. ennev_ S0R*2Inc. U.S. District Court for the Middle District of Pennsylvania No. 98-0087 Dear Mr. Finio: This office has been retained to represent Robert M. Mumma, II and Susan Mumma, individually and as agents for the Robert M. Mumma, II Grantor Retained Annuity Trust (" GRAr ). From our review of the materials presented to us and the docket in the above-referenced case, the following appear to be the relevant facts: 1. Litigation was. commenced on January 16, 1998 in the United States District Court for the Middle District of Pennsylvania and docketed to No. 98-0087. 2. The case was assigned to the Honorable Sylvia. H. Rambo. 3. A settlement hearing was held before Judge Rambo on January 18, 2000, at which time counsel for the parties reported to the Court that the parties had settled their claims. 7904 0750 0002 8064 3455 Michael A. Finio, Esquire Saul Ewing, LLP September 20, 2007 Page 2 4. A Stipulation of Dismissal was read into the record, the terms of which were subsequently reduced to writing in a "Settlement Agreement and General Release." 5. The Settlement Agreement provided, in pertinent part, that Pennsy Supply, Inc. gave Robert M. Mumma, H "a right of first refusal to purchase the property at 1607 Industrial Drive which will be triggered on Pennsy's future receipt of a bona fide offer to purchase the property from a third patty which Pennsy is willing to accept. Mumma will have twenty (20) days from the date of receipt of Pennsy's notice to exercise this right and ninety (90) days from the date of exercise to close." 6. The Court retained jurisdiction to enforce the Stipulation of Dismissal and the underlying Settlement Agreement. 7. Failure to comply with the terms of the Stipulation "will result in proceedings for contempt against the non-complying party." 8. Attorneys for Pennsy Supply, Inc. (Michael A. Finio, Esquire or Stephen M. Donweber, Esquire) executed the Stipulation on January 18, 2000, and the Stipulation was approved by the Honorable Sylvia H. Rambo and entered of record on that date. 9. The Settlement Agreement and General Release was executed by Donald Eshleman, President of Pennsy, Inc., and his signature was witmed by Matthew M. Haar, Esquire, an attorney with Saul Ewing who represented Pennsy Supply, Inc. in this matter. We have now learned that on July 11, 2007, the property that is subject to Mr. Mumma's right of fast refusal was sold to Danny L. Turner, as evidenced by Special Warranty Deed recorded in Cumberland County Record Book 280, Page 4684. The Realty Transfer Tax Statement of Value sets forth an actual cash consideration of $4300123.00 and appears to have been signed by Michael A. Finio. Mr. Mumma was never given notice of the proposed sale to Danny L. Turner or an opportunity to exercise his right of first refusal. On its face, this appears to be a clear and direct violation of the Settlement Agreement and the Stipulation of Dismissal. Mr. Mumma wishes to exercise his rights Michael A. Finio, Esquire Saul Ewing, LLP September 20, 2007 Page 3 and acquire the property. He is willing to match the purchase price paid by W. Turner. To that end, we request that you take whatever steps are necessary to secure reconveyance of the property to your client, Pennsy Supply, Inc. so that the property can be conveyed to Mr. Mumma, without restrictions. At this point, we have not notified the third-party purchaser or the Court of this notice and demand because we are hopeful that you will promptly respond and rectify this situation so that the property can be conveyed to Mr. Mumma. We look forward to receiving a response from you within the next five (5) days. Sincerely yours, Linda .Olsen Thomas W. Scott LJO/TWS/ cc: Robert M. Mumma, II Exhibit "G" Exhibit "G" SEP 2 8 W Attomeys at Law A DdMi. LLP September 27, 2007 Via Facsimile and First-Class Mail Linda J. Olsen, Esquire Thomas W. Scott, Esquire Killian & Oephart, LLP 218 Pine Street P.O. Box 886 Harrisburg, PA 17108-0886 Re: Mumma GRAS'. of A L. Randolph v. Penney Suu>Dlvt Inc. No. 980087 (M.D. Pa.) - - Dear Linda and Tom: michael A. Finio Phone: (717) 238-7671 Fax: (717) 257-7585 mfinio@saW.com WWw-sa .coln I have your September 20, 2007, letter. I just returned from vacation. We are investigating the issues you raised. This may take a while, as I was not directly involved in the litigation to which you refer, and Mr. Donweber is no longer with us, nor is Ms. Wagner, who helped to close the 2000 transfer from Randolph to Pennsy. As soon as I am able to review their files, which I am certain are in archives, and find them to speak with them so I can better understand the facts, I will be back in touch. Thank you. MAFlkls very truly yours, 'o Michael At :o 2 North Second Street, 7'4 Floor ? Harrisburg. PA 17101.1619 • Phone: (717) 257-7500 • Fax: (717)_238-4622 BALTIMORE CHESTERBROOK HARRISBURG NBWAM PHILADELPHIA PRINCETON WASHINGTON WILMINGTON 6129.19/27/07 ADUAWAULDAMcu LMPARTHNOW Linda J. Olsen, Esquire PA I. D. 92858 Thomas W. Scott, Esquire PA I.D. 15681 Killian & Gephart, LLP 218 Pine Street P. O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 lolsenA killian¢ephart.com tscott(&killianQephart.com IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA Robert M. Mumma, II Grantor Retained Annuity Trust; Robert M. Mumma, II and Susan Mumma, : Movants : v : Benedict B. Randolph V. Pennsy Supply, Inc., : Respondent V. : Danny L. Turner, Additional Respondent No. 98-0087 Judge Sylvia H. Rambo FILED ELECTRONICALLY VIA ECF CERTIFICATE OF NON-CONCURRENCE Linda J. Olsen, Esquire and Thomas W. Scott, Esquire, counsel for Movants, Robert M. Mumma, 11 Grantor Retained Annuity Trust; Robert M. Mumma, II and Susan Mumma, state that on December 18, 2007 a copy of the Motion for an Order Pursuant to rule 7(b) to Join an Additional Respondent, to Enforce a Settlement Agreement and Stipulation of Dismissal, for Contempt, and to Impose Sanctions was hand delivered to Michael A. Finio, Esquire with a request that Mr. Finio's concurrence or non-concurrence be communicated to counsel for Movants by 2:00 p.m. on December 19, 2007. Mr. Finio failed to respond to that request. For purposes of complying with L.R. 7. 1, the within Certificate of Non-Concurrence is being filed as though Mr. Finio had informed Movants' counsel that he does not concur in this Motion. Respectfully submitted, /s/ Linda J. Olsen Linda J. Olsen, Esquire Attorney I.D. No. 92858 Thomas W. Scott, Esquire Attorney I.D. No. 15681 KILLIAN & GEPHART, LLP 218 Pine Street P. O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 Date: December 191 2007 Attorneys for Movants Linda J. Olsen, Esquire PA I. D. 92858 Thomas W. Scott, Esquire PA I.D. 15681 Killian & Gephart, LLP 218 Pine Street P. O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 lolsenakilliangenhart.com tscott@killianget)hart.com IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA Robert M. Mumma, II Grantor Retained Annuity Trust; Robert M. Mumma, II and Susan Mumma, : Movants : V. : Benedict B. Randolph V. Pennsy Supply, Inc., Respondent : V. Danny L. Turner, : Additional Respondent No. 98-0087 Judge Sylvia H. Rambo FILED ELECTRONICALLY VIA ECF CERTIFICATE OF SERVICE I do certify that I served a true and correct copy of the within document upon the following by electronic filing: Counsel for Pennsy Supply, Inc. Michael A. Finio, Esquire and David S. Brady, Esquire and also by United States first class mail, postage prepaid, addressed as follows: Counsel for Danny L. Turner Hubert X. Gilroy, Esquire Martson Law Offices Ten East High Street Carlisle, Pennsylvania 17013 Stephen M. Donweber Saul Ewing LLP 1500 Market Street West 38th Floor Philadelphia, PA 19102-2186 Steven J. Fishman Fishman & Morgenthal 95 Alexander Spring Road Suite 3 Carlisle, PA 17013 Patricia A. Trujillo, Esquire Saul Ewing, Remick & Saul, LLP Penn National Insurance Tower 2 North Second Street, 7th Floor Harrisburg, PA 17101 /s/ Linda J. Olsen Linda J. Olsen, Esquire Killian & Gephart, LLP 218 Pine Street, P. O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 Dated: December 192 2007 enrisylvania Middle District Version 3.0.5 iervice of Process: 1:98-cv-00087-SHR Mumma et al v. Randol h CASE CLOSED on 01/18/2000 .LOSED, HBG United States District Court Middle District of Pennsylvania lotice of Electronic Filing Page 1 of 2 'he following transaction was entered by Olsen, Linda on 12/19/2007 at 4:03 PM EST and filed on 12/19/2007 -ase Name: Mumma, et al v. Randolph -ase Number: 1:98-cv-87 Filer: Robert M. Mumma, II Robert M. Mumma, II Susan Mumma WARNING: CASE CLOSED on 01/18/2000 Document Number: 122 Docket Text: "ERTIFICATE OF SERVICE by Robert M. Mumma, II, Susan Mumma, Robert M. Mumma, II, Robert M. Mumma, :I re [121] First MOTION to Enforce Settlement Agreement and Stipulation of Dismissal, to join additional respondent, or contempt and to impose sanctions Revised Certificate of Service (Olsen, Linda) [:98-cv-87 Notice has been electronically mailed to: )avid S. Brady bradylaw 'a fastmail.net 4ichael A. Finio mfinio@saul.com, ksitler@saul.com ,inda J. Olsen lolsen@killiangephart.com bomas W. Scott tscott@killiangephart.com :98-cv-87 Filer will deliver notice by other means to:: tephen M. Donweber aul Ewing LLP 500 Market Street West 3th Floor iiladelphia, PA 19102-2186 even J. Fishman shman & Morgenthal Alexander Spring Rd cite 3 irlisle, PA 17013 tricia A. Trujillo ps:Hecfpamd.uscourts.gov/cgi-bin/Dispatch.pl?628199335823155 12/19/2007 PenAsylvania Middle District Version 3.0.5 Saul, Ewing, Remick & Saul, LLP Penn National Insurannce Tower 2 North Second Street, 7th Floor Harrisburg, PA 17101 The following document(s) are associated with this transaction: Document description:Main Document Original Mename:n/a Electronic document Stamp: [STAMP dcecfStamp_ID=1027698419 [Date-- 12/19/2007] [FileNumber=1823950- 0][45f32054086e6f01f809873fb2f8698acfdeba464e75dd46e2dcl462cel53ba4dc f826d85e026fb4b9423bbebc008c4869ad5ef2c9176b1350a6df79e2831053]] Page 2 of 2 tps:Hecf.pamd.uscourts.gov/cgi-bin/Dispatch.pl?628199335823155 12/19/2007 1 IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA Robert M. Mumma, II Grantor Retained Annuity Trust; Robert M. Mumma, II and Susan Mumma, Plaintiffs/Movants Benedict B. Randolph V. Pennsy Supply, Inc., : Respondent V. Danny L. Turner, : Additional Respondent ORDER AND NOW, this day of 2007, upon consideration of Movants' Motion for an Order Pursuant to Rule 7(b) to Join an Additional Respondent, to Enforce a Settlement Agreement and Stipulation of Dismissal, for Contempt, and to Impose Sanctions, it is hereby ORDERED that: (a) Danny L. Turner is joined as an Additional Respondent to this action, subjecting him to the jurisdiction of this court; No. 98-0087 Judge Sylvia H. Rambo FILED ELECTRONICALLY VIA ECF (b) (c) (d) (e) (f) Pennsy Supply, Inc. is held in contempt for failing to notify Mumma of the receipt of a bona fide offer from a third party to purchase the property at 1607 Industrial Road, Carlisle, Pennsylvania, which would have triggered Mumma's right of first refusal; The transaction by which Pennsy purported to convey the property to Danny L. Turner is hereby VOID; Pennsy Supply, Inc. shall convey all of its right, title and interest in the 1607 Industrial Drive property to Mumma or Mumma's designee within 90 days of the date of this Order upon payment by Mumma to Pennsy of $430,123.00; Sanctions are imposed upon Pennsy Supply in the amount of all transfer taxes, title fees, legal fees, costs and other expenses incurred by Mumma in conjunction with the acquisition of the 1607 Industrial Drive property from Pennsy; A hearing at which time Mumma may establish all consequential damages, including but not limited to lost profits and lost opportunity suffered as a result of Pennsy's breach of the Settlement Agreement shall be held on the day of Courtroom . at o'clock _ M.; 2007 in 2 (g) Sanctions are imposed on Pennsy in the amount of all damages suffered by Mumma; (h) Pennsy shall pay all attorneys' fees and costs incurred by Mumma in enforcing the Settlement Agreement, acquiring the property and establishing damages; and (i) Additional relief, including additional monetary sanctions against Pennsy Supply, Inc. and/or its counsel as this Honorable Court is awarded in an amount to be determined following hearing. BY THE COURT: J. DATE Distribution: Linda J. Olsen, Esquire, Killian & Gephart, LLP, 218 Pine Street, Harrisburg, PA 17101 Thomas W. Scott, Esquire, Killian & Gephart, LLP, 218 Pine Street, Harrisburg, PA 17101 Michael A. Finio, Esquire, Saul Ewing, LLP, Penn National Insurance Tower, 2 North Second Street, 7th Floor, Harrisburg, PA 17101 Hubert X. Gilroy, Esquire, Martson Law Offices, Ten East High Street, Carlisle, PA 17013 3 t CERTIFICATE OF SERVICE I do certify that I served a true and correct copy of the within document upon the following by hand delivery, addressed as follows: Hubert X. Gilroy, Esquire Katie J. Maxwell, Esquire Martson Deardorff Williams Otto Gilroy & Faller Martson Law Offices 10 East High Street Carlisle, PA 17013 loan C. St Killian & P. O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 Dated: December 20, 2007 s . C-) ? r^ ? - C c:> } . 3 L ,• r Thomas W. Scott, Esquire Attorney I.D. No. 15681 Linda J. Olsen, Esquire Attorney I.D. No. 92858 KILLIAN & GEPHART, LLP 210 Pine Street P. O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 Attorneys for Respondents ROBERT M. MUMMA, II GRANTOR RETAINED ANNUITY TRUST Box 58 Bowmansdale, PA 17008 and ROBERT M. MUMMA, II Box 508 McCormick Road Bowmansdale, PA 17008 and SUSAN MUMMA Box 508 McCormick Road Bowmansdale, PA 17008 Plaintiffs/Respondents V. BENEDICT B. RANDLOPH 132 Rivercrest Drive Greenville, North Carolina Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA NO. 98-950 CIVIL CIVIL ACTION - LAW PRELIMINARY OBJECTIONS IN THE NATURE OF AN OBJECTION TO JURISDICTION, BASED ON PENDENCY OF A PRIOR ACTION AND IN THE NATURE OF A DEMURRER Robert M. Mumma, H Grantor Retained Annuity Trust, ("TRAT"), Robert M. Mumma, II and Susan Mumma (collectively "Mumma"), by and through their attorneys, Killian & Gephart, LLP, file the following Preliminary Objections to the Petition to Strike Lis Pendens of Respondent Danny L. Turner, and in support thereof aver the following: 1. Respondent Robert M. Mumma, R Grantor Retained Annuity Trust ("GRAT") is a legally established trust entity of which Robert M. Mumma, R is the Grantor and Robert M. Mumma, II and Susan Mumma are the Trustees. The mailing address of the GRAT is P. O. Box 58, Bowmansdale, PA 17008. 2. Robert M. Mumma, 11 and Susan Mumma are adult individuals, having a legal residence address of 6880 S.E. Harbor Circle, Stuart, FL 34996. 3. Petitioner is Danny L. Turner ("Turner"), an adult individual residing at 210 Big Pond Road, Shippensburg, Cumberland County, Pennsylvania. 4. Turner is the record owner of real estate located in Cumberland County, Pennsylvania, known as 1607 Industrial Drive, Carlisle, Pennsylvania (the "Property") 5. The Property was indexed as lis pendens on February 19, 1998 in the Cumberland County Court of Common Pleas at No. 98-950 CIVIL. 6. The Property was the subject of litigation commenced by the GRAT against Benedict B. Randolph ("Randolph") in the United States District Court for the Middle District of Pennsylvania and docketed to No. 98-0087, which action was filed on January 16, 1998 (the "Middle District litigation"). 7. The Middle District litigation sought specific performance (or in the alternative, damages) of a December 18, 1995 Letter of Intent between the GRAT and Benedict Randolph 2 (hereinafter "Randolph"), whereby the GRAT alleged Randolph was to convey property at 1607 Industrial Drive, Carlisle, Pennsylvania to the GRAT. 8. Pennsy Supply, Inc. ("Pennsy") was granted leave to intervene in the aforesaid litigation, as of right, arguing that enforcement of the Letter of Intent would violate other agreements to which both Pennsy and Mumma (or entities controlled by him) were party. 9. At the time the trial was set to begin before Judge Rambo on January 18, 2000, the parties to the Middle District litigation reached an agreement for settlement. 10. A Stipulation of Dismissal ("Stipulation") was read into the record, the terms of which were subsequently reduced to writing in a Settlement Agreement and General Release ("Settlement Agreement"). 11. The Stipulation and underlying Settlement Agreement provide, in pertinent part: 2. All claims in the above action have been settled on the following basis: b. Pennsy will also give Robert M. Mumma, II a right of first refusal to purchase the property at 1607 Industrial Drive which will be triggered on Pennsy's future receipt of a bona fide offer to purchase the property from a third party which Pennsy is willing to accept. Pennsy will give Mumma twenty (20) days to exercise this right and ninety (90) days to close from the date of the exercise. A copy of the Stipulation is attached to Petitioner's Petition to Strike Lis Pendens and hereto as Exhibit "A." 12. Turner purchased the Property from Pennsy on July 11, 2007. 3 13. On information and belief, the existence of the indexed lis pendens was known to Danny L. Turner and/or his counsel prior to the time Danny L. Turner purchased the property from Pennsy Supply, Inc. on July 11, 2007. 14. At no time did Danny L. Turner or his counsel contact Mumma to ascertain the status of the dispute that led to the indexing of the lis pendens. 15. Had they done so, they would have been advised that the settlement agreement that led to the discontinuance of the litigation clearly provided Mumma with a right of first refusal, which he was prepared to exercise. 16. Turner knew or should have known that the 1607 Industrial Drive property was subject to Mumma's right of first refusal. Motion to Deny Petitioner's Petition to Strike Lis Pendens for Lack of Jurisdiction 17. Pursuant to the terms of Stipulation of Dismissal, approved by Judge Rambo, the Middle District Court retained jurisdiction in the Middle District litigation and, therefore, also retained jurisdiction over the GRAT, Pennsy, and the Property. 18. Contrary to the assertions of Petitioner Danny L. Turner in paragraph 9 of the Petition to Strike Lis Pendens, the Property does, in fact, bear relationship to the Middle District litigation because the Stipulation and Settlement Agreement provide for conditions precedent to any sale of the Property by Pennsy Supply, Inc. and specifically set forth that the United States District Court for the Middle District of Pennsylvania "shall retain jurisdiction to enforce [the] Stipulation and the underlying settlement agreement in this action." 4 Motion to Dew Petitioner's Petition to Strike Lis Pendens Based on Pendency of Prior Matter 19. A Motion to Join an Additional Respondent, To Enforce a Settlement Agreement and Stipulation of Dismissal, for Contempt, and to Impose Sanctions was filed with the U.S. District Court for the Middle District of Pennsylvania on December 19, 2007. A copy of said Motion is attached hereto as Exhibit "A." 20. Clearly, there are three parties to the dispute over the purported sale of the Property by Pennsy to Turner, and those parties are: Pennsy, Turner, and the GRAT. 21. Once the federal court has acted on the Motion to join Turner as an additional respondent to the matter docketed to No. 98-0087, all three parties will properly be before the federal court. 22. Petitioner's request to strike lis pendens should be denied because the subject matter of this Petition, the parties to the Petition, and the resolution of the issues raised by the Petition are all pending before the Middle District in the action filed in 1998. 23. The simultaneous litigation of both suits would create a duplication of effort and waste judicial resources. See Crutchfield v. Eaton Coro., 806 A.2d 1259, 1262 (Pa. Super. 2002). 24. All disputes regarding the sale or title to the property that is the subject of the Middle District litigation and over which the Middle District Court has retained jurisdiction should, and will, be resolved in federal court. 25. Any and all issues raised by Turner in the Petition to Strike Lis Pendens are properly within the jurisdiction of the federal court action. 5 Demurrer 26. Even if Petitioner is right and the lis pendens indexed in Cumberland County at No. 98-950 would have automatically terminated upon the dismissal of the Middle District litigation, the filing of the December 19, 2007 Motion reopens the Middle District litigation, permitting Mumma to file a new lis pendens at any time; therefore, Turner is not entitled to the relief requested in his Petition. Prior Rulings in this Action 27. Judge Edward E. Guido has issued a Rule to Show Cause and scheduled a hearing on the Petition to Strike Lis Pendens on January 10, 2008 at 2:30 p.m. WHEREFORE, Plaintiffs/Respondents respectfully request that this Honorable Court grant their Preliminary Objections denying Petitioner's Petition to Strike Lis Pendens and remove this matter to the U.S. District Court for the Middle District of Pennsylvania where jurisdiction properly lies. ted, Thomas W. Scott, Esquire Attorney I.D. No. 15681 Linda J. Olsen, Esquire Attorney I.D. No. 92858 KILLIAN & GEPHART, LLP 218 Pine Street P. O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 Date: December 20, 2007 Attorneys for Plaintiffs/Respondents, Robert M. Mumma, II Grantor Retained Annuity Trust, Robert M. Mumma, 11 and Susan Mumma xi:Ninm 8 E :8 Wit 03 030 LODZ 1 bViG,Nv ud :IjHi dQ ROBERT M. MUMMA, H GRANTOR RETAINED ANNUITY TRUST P.O. Box 58 Bowmansdale, PA 17008 and ROBERT M. MUMMA, H Box 508 McCormick Road Bowmansdale, PA 17008 and SUSAN MUMMA Box 508 McCormick Road Bowmansdale, PA 17008 t Plaintiffs/Respondents V. BENEDICT B. RANDOLPH 132 Rivercrest Drive Greenville, North Carolina Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 98 - 950 CIVIL CIVIL ACTION - LAW ORDER OF COURT QA AND NOW this I day of January, 2008, upon request of counsel for the Petitioner, Danny L. Turner, and it being represented to the Court that counsel for Respondent Robert M. Mumma, H, does not object, the hearing scheduled on the Petition to Strike Lis Pendens in the above matter which was scheduled for Thursday, January 10, 2008, at 2:30 p.m. is continued generally. The hearing will be rescheduled at the request of either partor, in the alternative, the case will be listed for Argument upon agreement of counselpl? e p ' s. BY Judge cc: Hubert X. Gilroy, Esquire Thomas W. Scott, Esquire 1'E.S Mgt LeC L 1 go tE d 0! €CIT E r^; e i rn, ?„ f r w F:\FILFSWkm\7436\7436.43.AFF Crated: 9/20/04 0:06FM Revim& 2/4108 9:49AM Hubert X. Gilroy, Esquire MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES I.D. 29943 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for ROBERT M. NIUMMA, II, IN THE COURT OF COMMON PLEAS OF GRANTOR RETAINED ANNUITY, CUMBERLAND COUNTY, PENNSYLVANIA TRUST NO. 98-950 P.O. Box 2255 614 North Front Street CIVIL ACTION - LAW Harrisburg, PA 17105 and ROBERT M. MUMMA, II Box 508 McCormick Road Bowmansdale, PA 17008 and SUSAN MUMMA, Box 508 McCormick Road Bowmansdale, PA 17008 Plaintiffs V. BENEDICT B. RANDOLPH 132 Rivercrest Drive Greenville, North Carolina Defendant s _qC AFFIDAVIT I, Danny L. Turner, being duly sworn according to law to depose and state as follows: On July 11, 2007, when I purchased real estate at 1607 Industrial Drive, Carlisle, Cumberland County, Pennsylvania (Property), I was not personally aware of the existence of a Court Order which required Pennsy Supply, Inc. (Penny) to give Robert M. Mumma, II, (Mumma) a Right of First Refusal to purchase the Property nor was I personally aware of the existence of a written agreement whereby Pennsy gave Mumma a Right of First Refusal to purchase the Property. 2 I did not personally become aware of any claims Mumma was asserting with respect to the Property until after July It, 2007. COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND L. ??? .. ?? S? 5YLVA?`11A N10S 0 ER PU h Y BED J. o 'Ian. 26, 2012 OWY On this, the -day of , 2008, before me, a Notary Public in and for the County of Cumberland, Commonwealth of Pennsylvania, the undersigned officer, personally appeared Danny L. Turner, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he executed the same for the purposes therein contained. Notary Public R" n ?? ? ;?7 ? ` ^'jjf \? ' ? T ,. t?i! ? _ `` F J4..? ? Y ?-'f^{ ? l ? ^S. I 1 11.1: 1(; ji•:t1.'.1:i,. I -:,rr,i,l1?.;1:1 -.;_o Hubert X. Gilroy, Esquire Attorney I.D. No. 29943 Katie .I. Marvell, Esquire Attorney I.D. No. 206018 MARTSON DLARDORFF WII.I.IAIvIS OT'I'O GILROY & FAI.LI R MARTSON LAW OFIICI:S 10 East f l igh Strut Carlisle, PA 17013 (717) 243-3341 Attorneys for Petitioner Danny L. Turner ROBERT M. MUMMA, II GRANTOR RETAINED ANNUITY TRUST P.O. Box 2255 614 North Front Street Harrisburg, PA 17105 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 98 - 950 CIVIL CIVIL ACTION -- LAW and ROBERT M. MUMMA, II Box 508 McCormick Road Bowmansdale, PA 17008 and SUSAN MUMMA Box 508 McCormick Road Bowmansdale, PA 17008 Plaintiffs V. BENEDICT B. RANDOLPH 132 Rivercrest Drive Greenville. North Carolina Defendant SUPPLEMENTAL PETITION TO STRIKE LIS PENDENS Danny L. Turner, by and through his attorneys, MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, hereby files a Supplement Petition to Strike the Lis Pendens filed in the above case, and states as follows: 1. Petitioner Danny L. Turner filed a Petition To Strike Lis Pendens (Petition) in the above case on December 10, 2007. 2. By Order of Court dated December 14, 2007, the Honorable Edward E. Guido issued a Rule to Show Cause on Robert M. Mumma, II, Grantor Retained Annuity Trust, Robert M. Mumma, II, individually, and Susan Mumma to show cause why the Petition to Strike the Lis Pendens should not be granted. Said Order scheduled a hearing in the case on January 10, 2008. 3. On December 20, 2007, Robert M. Mumma, 11, Grantor Retained Annuity Trust, Robert M. Mumma, II, and Susan Mumma (collectively "Mumma") filed Preliminary Objections to the Petition in the nature of an objection to jurisdiction, based upon pendency of a prior action, and in the nature of a demurrer. 4. By agreement of the parties, the hearing scheduled for January 10, 2008, was continued generally. 5. By Order of the Honorable Sylvia H. Rambo at Docket No. 98-CV-0087 in the United States District Court for the Middle District of Pennsylvania, Petitioner Danny L. Turner was joined as a party in the Federal action at the mentioned docket number which formed the basis of the lis pendens filed in Cumberland County at the above referenced docket number. 6. After a hearing, the filing of briefs and oral argument, the Honorable John E. Jones, III, issued a decision November 19, 2008, in the Federal action which, essentially, dismissed Petitioner Turner from the Federal action and ordered "Turner shall retain possession of the Carlisle property subject to the term of his contract with Pennsy." The Order further denied Mumma's request for an opportunity to exercise a right of first refusal that it claimed to have with Pennsy Supply, Inc. A copy of the decision and Order of the Federal Court is attached hereto and marked "Exhibit All. 7. The decision of the Federal Court is conclusive and binding on all parties and, essentially, renders the lis pendens filed by Mumma as void. 8. The lis pendens may be perceived as a potential cloud on the title of the property owned by Turner, and Turner requests this Honorable Court to strike the lis pendens. 9. The only Judge who previously participated in this case is the Honorable Edward E. Guido who signed the Rule to Show Cause as mentioned above. 10. Thomas W. Scott, Esquire, is legal counsel for Mumma and it is understood by the undersigned that Mumma does not concur in this Petition. WHEREFORE, Petitioner requests your Honorable Court to strike the indexing of the lis pendens filed in the above matter. Respectfully Submitted, MARTSON LAW OFFICES Hubert X. Gilroy, Es ire Attorney I.D. No. 29943 Katie J. Maxwell, Esquire Attorney I.D. No. 206018 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date: November 4, 2008 Attorneys for Petitioner Danny L. Turner Case 1:98-cv-00087-JEJ Document 162 Filed 11/19/2008 Page 1 of 13 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ROBERT M. MUMMA, II, GRANTOR RETAINED ANNUITY TRUST; ROBERT M. MUMMA, II, and SUSAN MUMMA Movants, v BENEDICT B. RANDOLPH V. PENNSY SUPPLY, INC., Respondent, V. Civil No. 98-cv-0087 Judge John E. Jones III DANNY L. TURNER, Additional Respondent. MEMORANDUM AND ORDER November 19, 2008 THE BACKGROUND OF THIS ORDER IS AS FOLLOWS: Pending before this Court is a self-styled "'First Motion to Enforce Settlement Agreement and Stipulation of Dismissal, to Join Additional Respondent and to Impose Sanctions filed by the Movant" ("Movant's Motion" or "Motion"), which was filed on December 19, 2007. (Rec. Doc. 121). For the reasons that 1 EXHIBIT A Case 1:98-cv-00087-JEJ Document 162 Filed 11/19/2008 Page 2 of 13 follow, we will grant in part and deny in part the Movant's Motion. FACTUAL BACKGROUND: In 1998, litigation was commenced to the above caption between Robert M. Mumma ("Mumma") and Pennsy Supply, Inc. ("Pennsy") regarding a piece of land in Carlisle (the "Carlisle property" or "Property") that was used for manufacturing concrete. Mumma recorded a lis pendens on the Property in Cumberland County while it was the subject of litigation, which was ultimately resolved through a settlement agreement that was memorialized by a court order. That agreement gave Pennsy ownership of the Property but also granted Mumma a first right of refusal if Pennsy ever chose to sell the Property. Unlike the lis pendens, the right of first refusal was not placed on the public record in Cumberland County. A few years later, Danny L. Turner ("Turner") expressed interest in the Property. He retained counsel who conducted a title search and discovered the aforementioned lis pendens on the Carlisle Property. According to Turner's counsel, the following steps were taken to ensure the Property was not encumbered: (i)Turner received verbal assurances from Pennsy's attorneys at Saul Ewing that the matter involving the lis pendens had been settled and dismissed; (ii) he obtained a copy of the docket report` showing that the underlying case in federal ' The docket entry directed the reader to "see order for details." 2 Case 1:98-cv-00087-JEJ Document 162 Filed 11/19/2008 Page 3 of 13 court that formed the basis of the lis pendens had been dismissed with prejudice; and (iii) received an executed seller's affidavit from Pennsy stating that there were no agreements affecting the premises. Upon receiving these assurances, Turner made an offer for the Property. Pennsy did not inform Turner of Mumma's first right of refusal nor did Pennsy notify Mumma that it had a potential purchaser for the Property. Instead, Pennsy ignored Mumma's first right of refusal and sold the Property in 2007 to Turner under a deed restriction that operated in perpetuity, prohibiting Turner, and all future grantees, from using the premises to manufacture concrete. When Mumma later learned of this transaction, he filed a motion to compel Pennsy to comply with the settlement agreement and honor.the first right of refusal (the aforementioned "Movant's Motion"). At that time, the case was before our colleague, the Honorable Sylvia Rambo, who, in addition to allowing the joinder of Turner, scheduled a hearing for April 3, 2008 (the "Hearing") to take testimony thereon. (Rec. Doc. 134). PROCEDURAL HISTORY: At the Hearing, Judge Rambo appropriately bifurcated the Movant's Motion into discrete portions, the first concerning the merits of the motion ("merits portion") and the second relating to the nature and extent of relief, if any should be Case 1:98-cv-00087-JEJ Document 162 Filed 11119/2008 Page 4 of 13 afforded ("relief portion"). Judge Rambo conducted the Hearing and entered an Order directing the parties to address three distinct legal issues.' (Rec. Doc. 139). These issues were fully briefed when Judge Rambo entered an Order of Recusal on August 1, 2008. (Rec. Doc. 150). The case was then assigned to Chief Judge Yvette Kane, who, on August 6, 2008, also entered an Order of Recusal that, in turn, resulted in the reassignment of the case to us. (Rec. Doc. 140). Oral argument regarding the briefed legal issues commenced before us on November 131 2008. After digesting the substance of the arguments at that proceeding, and upon a review of the submissions made prior thereto by all parties, we are now prepared to resolve the merits portion of the Movant's Motion. Accordingly, the following discussion will focus exclusively on the merits portion of the motion; issues of relief will be addressed at a later time. DISCUSSION: At bottom, the dispute presents the Court with two overarching issues, which we will address separately below. A. DID PENNSY BREACH THE SETTLEMENT AGREEMENT WHEN IT FAILED TO HONOR MUMMA'S FIRST RIGHT ' These issues were: (i) Was the restrictive use covenant in the Pennsy-Turner deed valid and enforceable?; (ii) May the first right of refusal be recorded and if so, must it in order to be enforceable? (iii) Did the lis pendens impart constructive notice to Turner such that he had a duty to investigate the outcome ofthe1998 Mumma-Pennsy litigation? 4 Case 1:98-cv-00087-JEJ Document 162 Filed 11/19/2008 Page 5 of 13 REFUSAL AND, IF SO, WHAT WAS THE CONSEQUENCE OF THAT BREACH? Despite the somewhat contrived controversy regarding this issue set forth in the briefs filed by Pennsy, at oral argument Pennsy freely admitted that it had in fact breached the settlement agreement when it failed to notify Mumma that it had a potential purchaser for the Carlisle property. Implicit in this concession is Pennsy's admission that Mumma's first right of refusal was valid and enforceable despite Mumma's failure to record it.' After all, if the first right of refusal was void as a result of the failure to record, Pennsy's failure to notify Mumma of a potential purchaser for the Carlisle property would not have resulted in a breach. The consequence of this breach was, unquestionably, that Pennsy sold the Carlisle property, encumbered by a perpetual use restriction prohibiting concrete manufacturing on it, to Turner. These conclusions lead us to focus on the second and more complex issue that follows. B. WAS TURNER A GOOD FAITH PURCHASER? When a seller (in this case Pennsy) transfers a parcel of land, in which a ' Indeed, we believe this implicit admission to be in line with Pennsylvania law, which has held, "the purpose of the recording statutes is to protect subsequent bona fide purchasers from injuries caused by secret pledges of property." Commonwealth of Pennsylvania Game Comm'n v. Ulrich, 565 A.2d 859, 861 (Pa. Commw. Ct. 1989). 'Therefore, "Pennsylvania recording laws ... do not render invalid an unrecorded interest in land." Id. at 862 (citing Land v. Pennsylvania Housing Finance Agency. 515 A.2d 1024 (Pa. Commw. Ct. 1986). Case 1:98-cv-00087-JEJ Document 162 Filed 11/19/2008 Page 6 of 13 third party (in this case Mumma) has an interest or right, to a buyer (in this case Turner), the buyer can retain possession of the property unencumbered by the third party's interest or right if the buyer is a ``bona fide purchaser." See Wurtzel v. Park "Towne Place Apartments Ltd. P'ship, 2001 WL 1807405 (Pa. Com. Pl. 2001); Semenko v. Campbell, 28 Pa. D&C 618, 620 (Pa. Com. Pl. 1982). A "bona fide" or "good faith" purchaser is a party who "pay [s] valuable consideration, ha/s] no notice of the outstanding rights of others,' and act[s] in good faith." Poffenberaer v. Goldstein, 776 A.2d 1037, 1042 (Pa. Commw. Ct. 2001) (citations omitted). In this instance, it is not contested that Turner paid valuable consideration for the Carlisle property. However, Mumma does assert that Turner is not a bona fide purchaser because Turner had notice of his first right 6f refusal and therefore did not pursue his course of conduct in good faith. Turner, obviously, denies this assertion. Both parties use the same sequence of events to bolster their claims, which is as follows. After expressing an interest in purchasing the Property, Turner retained counsel who conducted a title search and discovered that there was a lis pendens on the Property. According to Turner's counsel, the following steps were taken to ' In claiming that one has no notice of the rights of another, the claimant must exercise due diligence in attempting to discover said third party rights. Lyon v.Alley, 130 U.S. 177, 183 (1889). 6 Case 1:98-cv-00087-JEJ Document 162 Filed 11/19/2008 Page 7 of 13 ensure the Property was not encumbered: (i) he obtained a copy of the docket report' showing that the underlying case in federal court that formed the basis of the lis pendens had been dismissed with prejudice; (ii) he received verbal assurances from Pennsy's attorneys at Saul Ewing that the matter involving the lis pendens had been settled and dismissed with prejudice; and (iii) he obtained an executed seller's affidavit from Pennsy stating that there were no agreements affecting the premises. Mumma argues that the lis pendens discovered by Turner's counsel, in tandem with the docket report's direction to "see order for details," imparted constructive notice to Turner that there was a potential cloud on the title to the Carlisle property-. Accordingly, Mumma posits that Turner's decision to proceed with the transaction without discovering the nature of the encumbrance exhibits a failure of due diligence constituting bad faith, which prevents Turner from qualifying as a bona fide purchaser. Mumma avers that Turner could have done any of a number of things, all within the range of due diligence, that would have enabled him to discover the nature of encumbrance. For instance, Mumma argues that 'Turner could have contacted Mumma himself, since Mumma was the party ' As previously noted, the docket entry directed the reader to "see order for details," At the Hearing, Turner's counsel admitted, with great candor, that upon seeing the order he attempted to access PACER to verify the contents of the order but was unsuccessful in doing so. Case 1:98-cv-00087-JEJ Document 162 Filed 11/19/2008 Page 8 of 13 benefitted by the encumbrance, to inquire about the lis pendens. Additionally, Mumma asserts that Turner could have checked the docket for the settlement order, as was suggested by the docket report. Conversely, Turner aptly notes that "lis pendens" literally means "a pending suit." McCahill v.Roberts, 219 A.2d 306, 308 (Pa. 1996), and that a lis pendens serves to give notice to third parties of one thing and one thing alone: that the property is subject to litigation, Vintage Homes v. Leven, 554 A.2d 989 (Pa. Super. 1989). Thus, Turner avers that when he discovered a lis pendens on the Property, he was put on notice that it was the subject of litigation. With this knowledge, Turner received two separate assurances from Pennsy's counsel that the lis pendens was no longer on the Property and that the title to the Property was free and clear of any encumbrances. Turner admits that he could have called Mumma to verify the nature of the encumbrance. He also admits that he could have expended additional energy in checking the settlement order. But, as Turner notes, the proper question is not could he have done these things; rather, it is should he have been required to do them. When taken in the context of Turner's course of conduct, we believe that the answer to the latter question is a resounding no. "Due diligence" is defined as `'[tjhe diligence reasonably expected from, and 8 Case 1:98-cv-00087-JEJ Document 162 Filed 11/19/2008 Page 9 of 13 ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation." BLACK'S LAw DICTIONARY (8th ed.). Therefore, in the instant matter, "due diligence" would be the degree of diligence expected from an ordinary purchaser of real property in attempting to discover encumbrances on the sought-after property. Although we have already recounted Turner's actions (through his counsel Mr. Otto) in this regard, we summarize them again to emphasize our point. In attempting to discover if the Carlisle property was encumbered, Turner (i) obtained a copy of the docket report showing that the underlying case in federal court that formed the basis of the lis pendens had been dismissed with prejudice; (ii) he received verbal assurances from Pennsy's attorneys at Saul Ewing that the matter involving the lis pendens had been settled and dismissed with prejudice; and (iii) he obtained an executed seller's affidavit from Pennsy stating that there were no agreements affecting the premises. In our considered view, after completing these steps and receiving these assurances, an ordinary purchaser could reasonably expect that the property was free from encumbrances. Turner, through his counsel Mr. Otto, did just that.' b Indeed, we are of the opinion that Turner's actions were entirely reasonable, and that his inquiries justifiably led him to believe that the Carlisle property was unencumbered. As a matter of fact, our determination that Turner was a bona fide purchaser is buttressed by the actions of both Pennsy and Mumma. First, the seemingly blatant misrepresentations made by Pennsy's counsel to Turner's counsel regarding the clarity of the title to the Carlisle property supports our belief that Turner did not in fact have notice, constructive or otherwise, of Mumma's first right 9 Case 1:98-cv-00087-JEJ Document 162 Filed 11/19/2008 Page 10 of 13 Mumma would have us impose upon Turner a duty that would have required him to obtain assurances from each party involved in the underlying litigation regarding the details of its resolution, despite the fact that the docket showed it to have been fully resolved. Surely, this would saddle Turner and title searchers everywhere with an excessively onerous burden requiring verification of clear title from each and every potential source of any type of encumbrance.' This undoubtedly would hamper the free alienability of real property, a concept which is supported by a strong public policy. Peters v. East Penn Tw,V Sch Dist., 126 A.2d 802, 802 (Pa. Super. 1957). We decline the invitation to impossibly complicate property acquisition by imposing such a heavy burden. Accordingly, we find that Turner was a bona fide purchaser, for value. Therefore, Turner's interest is superior to that of Mumma's, meaning that Turner shall retain the Property despite Mumma's first right of refusal. of refusal. Second, while Mumma certainly was not required to record the first right of refusal, his failure to do so is another factor that militates in favor of the conclusion that Turner had no notice of the first right of refusal and therefore acted in good faith when proceeding to consummate the transaction for the Carlisle property. ' The professional diligence required by counsel in real estate transactions is grindingly difficult on a good day. Simply put, we believe that Mr. Otto did everything that could have been reasonably expected of him in representing Mr. Turner. Having practiced in this same area, we clearly would have followed the same course as Mr. Otto did in examining the title to the Carlisle property. It could never have been within Mr. Otto's contemplation that Penns_N's counsel's failure to reveal the right of first refusal would be followed by an affidavit from Pennsy itself to the same effect. 10 Case 1:98-cv-00087-JEJ Document 162 Filed 11/19/2008 Page 11 of 13 CONCLUSION: We now conclude yet another chapter in this ongoing legal saga between Mumma and Pennsy, which has now effectively protracted itself over the span of a decade. Regrettably for Turner, he was pulled into the vortex of this maelstrom as R a result of his purchase of the Carlisle property, however, our resolution will end his participation in the case sub judice. He departs along with the Carlisle property, largely due to Mumma's unfortunate decision, as aforestated, not to record his right of first refusal. The above having been said, we would be remiss in failing to note our disquietude over the conduct by both Pennsy and its counsel. Clearly, absent their acts, which were disingenuous to say the least, we would not be at this point. While the facts and law will not allow us to provide Mumma with his fondest hope, the denial of the property to Turner and effective reinstatement of the right of first refusal, we will now move to a second phase that will allow Mumma to state a case for alternative relief. NOW, THEREFORE, IT IS ORDERED THAT: The relief requested in the Movant's Motion (Rec. Doc. 121) is GRANTED IN PART and DENIED IN PART to the following Case 1:98-cv-00087-JEJ Document 162 Filed 11/19/2008 Page 12 of 13 extent: a. The Motion is GRANTED insofar as the Movant asserts that Pennsy breached the settlement agreement. b. The Motion is DENIED insofar as the Movant requests the opportunity to exercise his right of first refusal against Turner, the bona fide purchaser for value. C. The Motion is DENIED insofar as the Movant requests the opportunity to purchase the Carlisle Property from Mumma on terms similar or identical to those conditioned upon Turner. 2. Turner shall RETAIN possession of the Carlisle property subject to the terms of his contract with Pennsy. Turner is furthermore DISMISSED from the case. 3. Both Mumma and Pennsy shall submit initial briefs regarding the measure of damages resulting from Pennsy's breach of the settlement by December 2, 2008. The parties shall submit reply briefs, if any, by December 16, 2008. 4. The Court will schedule additional proceedings as necessary after a review of the requested submissions. 12 Case 1:98-cv-00087-JEJ Document 162 Filed 11/19/2008 Page 13 of 13 S/ John E. Jones III John E. Jones III United States District Judge 13 CERTIFICATE OF SERVICE I, Shelly R. Brooks, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Petition was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Thomas W. Scott, Esquire Killian Gephart 218 Pine Street P.O. Box 886 Harrisburg, PA 17101 MARTSON LAW OFFICES Shel y . rooks Ten a High Street Carl , PA 17013 (717) 243-3341 Dated: November dt , 2008 c`°, ?, - ?a v t ; ,.r,i --=,A ,_? ;.4 F?? ?, _y . ?, _... -?. ?? : -, y n .. _., _? c7 ?._„, ? ? ORDER OF COURT AND NOW, on this X*day of N , 2008, upon consideration of the Supplemental Petition to Strike Lis Pendens, a Rule is hereby issued upon Robert M. Mumma, 11, Grantor Retained Annuity Trust, Robert M. Mumma, 11, and Susan Mumma, to show cause, if any they have, why the Supplement Motion to Strike Lis Pendens should not be granted. This Rule is returnable at a hearing scheduled in the matter in Courtroom No. 3 of the Cumberland County Courthouse on the day of 200Er at • 3• ( ,o'clock, k.m. BY TH BY Edward E. Guido, Judge Distribution: Hubert X. Gilroy, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 / Thomas W. Scott, Esquire Killian Gephart 218 Pine Street P.O. Box 886 VI-t t Harrisburg, PA 17101 7-1! Thomas W. Scott, Esquire Attorney I.D. No. 15681 Linda J. Olsen, Esquire Attorney I.D. No. 92858 KILLIAN & GEPHART, LLP 210 Pine Street P. O. Box 886 Harrisburg, PA 17108-0886 (717)232-1851 Attorneys for Respondents ROBERT M. MUMMA, II GRANTOR IN THE COURT OF COMMON PLEAS RETAINED ANNUITY TRUST OF CUMBERLAND COUNTY Box 58 PENNSYLVANIA Bowmansdale, PA 17008 and NO. 98-950 CIVIL CIVIL ACTION - LAW ROBERT M. MUMMA, II Box 508 McCormick Road Bowmansdale, PA 17008 and SUSAN MUMMA Box 508 McCormick Road Bowmansdale, PA 17008 Plaintiffs/Respondents v. BENEDICT B. RANDLOPH 132 Rivercrest Drive Greenville, North Carolina Defendant RESPONSE TO SUPPLEMENTAL PETITION TO STRIKE LIS PENDENS Robert M. Mumma, II, Grantor Retained Annuity Trust, and Robert M. Mumma, II and Susan Mumma, by and through their attorneys, Killian & Gephart, LLP, hereby file the within Response to the Supplemental Petition to Strike Lis Pendens, and state as follows: Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Denied as stated. The Order of the Honorable John E. Jones, III, issued November 19, 2008 and attached as Exhibit A to the Supplemental Petition to Strike Lis Pendens is a writing that speaks for itself, and any characterization inconsistent with the Order of Court is denied. By way of further answer, Judge Jones' Order states: NOW THEREFORE, IT IS ORDERED THAT: 1. The relief requested in Movant's Motion (Rec. Doc. 121) is GRANTED IN PART and DENIED IN PART to the following extent: a. The Motion is GRANTED insofar as the Movant asserts that Pennsy breached the settlement agreement. b. The Motion is DENIED insofar as the Movant requests the opportunity to exercise his right of first refusal against Turner, the bona fide purchaser for value. C. The Motion is DENIED insofar as the Movant requests the opportunity to purchase the Carlisle Property from Mumma on terms similar or identical to those conditioned upon Turner. 2. Turner shall RETAIN possession of the Carlisle property subject to the terms of his contract with Pennsy. Turner is furthermore DISMISSED from the case. 7. Denied as an incorrect conclusion of law. By way of further answer, Judge Jones' November 19, 2008 Order is not a final appealable order pursuant to F.R.C.P. 54, which provides, in pertinent part, that: 2 [A]ny order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities. F.R.C.P. 54(b). It is the present intention of Mumma to appeal Judge Jones' Order granting possession of the Property to Turner and dismissing Turner from the case at such time as the Order becomes final and appealable. (Appendix A) 8. Denied as stated. The existing lis pendens is a cloud on the title to the real property. By way of further answer, Respondent Mumma has, contemporaneously with the filing of this Response, filed a praecipe requesting that an additional lis pendens be indexed against the Property on account the pending litigation currently lodged in Judge Jones' courtroom. 9. Admitted. 10. Admitted. By way of further answer, who will ultimately become the owner of the 1607 Industrial Drive property is a question squarely lodged within the jurisdiction of the United States District Court for the Middle District of Pennsylvania, and at some time in the future, quite possibly within the Third Circuit Court of Appeals of the United States of America. Both the original lis pendens filed February 19, 1998 indexed at No. 98-950 Civil, and the presently filed lis pendens specifically identifying Danny L. Turner as Property Owner, are properly filed in this Court and should remain of record. The purpose of the lis pendens is to provide notice to the world that there is existing litigation 3 that may affect title to the Property. That was true in 1998; it was true in 2007; and it remains true in 2008. WHEREFORE, Respondents Robert M. Mumma, II, and related entities respectfully request this Honorable Court to enter an Order denying the relief requested in the Petition and the Supplemental Petition. Thomas W. Scott, Esquire Attorney I.D. 415681 Linda J. Olsen, Esquire Attorney I.D. #92858 KILLIAN & GEPHART, LLP 218 Pine Street P.O. Box 886 Harrisburg, PA 17108-0886 Tel: (717) 232-1851 Respectfully submitted lam/ Dated: December 9, 2008 Attorneys for Plaintiffs/Respondents, Robert M. Mumma, II Grantor Retained Annuity Trust, Robert M. Mumma, II and Susan Mumma 4 A Thomas W. Scott, Esquire PA I.D. 15681 Linda J. Olsen, Esquire PA I. D. 92858 Killian & Gephart, LLP 218 Pine Street P. O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 lolsenAkilliang_ephart. com tscotta,killiangephart.com Robert M. Mumma, II Grantor Retained : IN THE COURT OF COMMON PLEAS Annuity Trust; Robert M. Mumma, II : CUMBERLAND COUNTY PENNSYLVANIA and Susan Mumma, Plaintiffs No. _ 7 ?' C? `f G i .'?? V. Benedict B. Randolph V. . Pennsy Supply, Inc., Defendant V. . Danny L. Turner, . Additional Defendant PRAECIPE FOR LIS PENDENS TO THE PROTHONOTARY: Please index the below-described action for specific performance of a contract for the sale of real property as a lis pendens against the following real property, which property is more particularly described at Cumberland County Deed Book 280, Page 4684, a copy of which is attached hereto as Exhibit "A," and which is known and numbered as: 1607 Industrial Drive Carlisle, Cumberland County, Pennsylvania An action is pending in the United States District Court for the Middle District of Pennsylvania, and is docketed as Civil Action No. 98-CV-0087 titled Motion for an Order Pursuant to Rule 7(b) to Join an Additional Respondent, to Enforce a Settlement Agreement and Stipulation of Dismissal, for Contempt, and to Impose Sanctions. A copy of the Motion is attached hereto as Exhibit "B." Mumma sought to join Danny L. Turner as an Additional Respondent in the foregoing pending action, and on April 3, 2008, The Honorable Sylvia H. Rambo issued an Order joining Danny L. Turner to the pending action. A copy of said Order is attached hereto as Exhibit "C." Following recusal of Judge Rambo and reassignment to The Honorable John E. Jones Ill, a hearing was held on November 13, 2008. On November 19, 2008, Judge Jones issued a Memorandum and Order granting possession of the 1607 Industrial Road property to Turner and dismissing Turner from the case. A copy of the Memorandum and Order is attached hereto as Exhibit "D." Judge Jones' November 19, 2008 Order is not a final, appealable Order pursuant to F.R.C.P. 54 which provides, in pertinent part, that: [A]ny order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities. F.R.C.P. 54(b). It is the present intention of Mumma to appeal Judge Jones' Order granting possession of the property to Turner and dismissing Turner from the case at such time as the Order becomes final and appealable. 2 The undersigned hereby certifies that the pending U.S. Middle District action affects title to or other interest in the above-described real property. Respectfully submitted, 4 - V41-- - Tho as W. Scott, Esquire Attorney I.D. No. 15681 Linda J. Olsen, Esquire Attorney I.D. No. 92858 KILLIAN & GEPHART, LLP 218 Pine Street P. O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 Date: 2-U 0 Attorneys for Plaintiffs I? u ., Pareel NSUB-0574-014C Exhibit "W' P00ERr P. ZIEGLER SPECIAL WARRANTY DEMCORDER OF OEEO,. C`1'1-r8ERLAt46 COU11rY-1 THIS INDENTURE is made the IL day of July in yc'] ven (2007) between PENNSY SUPPLY, INC., a Pennsylvania Corporation (here' called the Grantor), of the one part, and DANNY L. TURNER, of Cumberland County, Pennsylvania (hereinafter called the Grantee), of the other part. WITNESSETH, that the Grantor, for and in consideration of the sum of One 00!100 ($1.00) lawful money of the United States of America, u fd it t l and truly paid by the Grantee, at or before the sealing and delivery hereof, the receipt whereof is here knowledged, has granted, bargained and sold, aliened, enfeoffed, released and confirmed, and by seats does grant, bargain and sell, alien, enfepf ; release and confirm unto the Grantee his heirs an assigns, ALL THAT CERTAIN lot or parcel of land situate in the Borough of Carlisle, County of Cumberland and Commonwealth of Pennsylvania, bounded and described as set, forth in the legal description attached to this Deed as Exhibit "A" and incorporated by reference. UNDER AND SUBJECT to all conditions, easements, rights of way, agreements, Covenants, liens, reservations, exceptions, restrictions and other encumbrances of record, to the extent still valid, subsisting and enforceable. . FURTHER UNDER AND SUBJECT to the covenant and agreement that the real property conveyed in this deed shall not be used for, nor shall said real property be the site or location of, the manufaoWm or production of concrete. This covenant and agreement shall be perpetual, shall be binding upon Grantee and Grantee's heirs and assigns, shall run with the land and shall be enforceable by Grantor and its successors and assigns. TOGETHER with all and singular the irnproverncrtts, ways, streets, alleys; driveways, passages, waters, water-courses, rights, liberties, privileges, hereditaments and appurtenances, whatsoever unto the hereby granted premises belonging, or in any wise appertaining, and the reversions and remainders, rents, issues, and profits thereof, and all the estate, right, title, interest, property, claim and demand whatsoever of it, the Grantor, in law, equity, or otherwise howsoever, of, in and to the same and every part thereof. TO HAVE AND TO HOLD the said lot or piece of ground above described,with the buildings and improvements thereon erected, hereditaments and premises hereby granted, or mentioned and intended so to be, with the appurtenances, unto the Grantee his heirs and assigns, to and for the only proper use and behoof of the Grantee, his heirs and assigns forever. UNDER AND SUBJECT, as aforesaid. 134 1,.17110W I BooK 280 Pht14684 AND the Grantor, for itself and its successors and assigns, does covenant, promise and agree, to and with the Grantee his heirs and assigns, by these presents, that it, the Grantor, and its successors and assigns, all. and singular the hereditamcnts and premises hereby granted or mentioned and intended so to be, with the appurtenances, unto the Grantee, his heirs and assigns, against the Grantor and its successors and assigns, and against all and every person and persons whomsoever ]awfully claiming or to claim the same or any part thereof, by, from or under it or any of them, shall and will, subject as aforesaid, SPECIALLY WARRANT and forever DEFEND. IN WITNESS WHEREOF, the Grantor has hereunto set its corporate hand and seal. Dated the day and year first above written. SIGNED AND DELIVERED IN THE PRESENCE OF, ATTEST: By: Print Name Dere S. Venderslice Title: Scorc6lry PENNSY SUPPLY, INC. By: 0- -.'? Print Name: y O. Good Titlq: Vice esident 134714.1 711UT 2 BQOK 280 PACE4685 . 4 COMMONWEALTH OF PENNSYLVANIA. f SS COUNTY OF On this // - day of July 2007, before me a Notary Public in and for the Commonwealth of pennsylvania, the undersigned officer, personally appeared Randy 0. Good, who acknowledged himself to be the Vice President of Pennsy Supply, lac, a corporation, and that as such officer, being authorized to do so, executed the foregoing instrument for the purposes therein contained by signing the name of the corporation by himself as such officer. In Witness Whereof, I hereunto set my official seal. . SEAL] Notary Public ot+ MOM ALTH of e>7+NSY1.v?xtA NOr`AtMiAL SEAL vjq x s of, Not y Pubtie My Commission Expires: Ca6iiele&to Oimbc6W COMP M eommiuiaaat ' Dctaoba10,20EQ The address of the within-named Grantee is: 1 LAA Z (IV C,4, t (t?j 9r>o>,? ?o?l By: ?- Attorney for Orantee rccurded i'land County PA "Are r Recorder of Deeds 1)431{.1 MOW 800K 260 PAGE4686 Exhibit "A" ALL THAT CEPtTAIN piece or parcel of land situate in the Borough of Carlisle, County of Cumberland and Commonwealth of Pennsylvania designated as Parcel No. 7 on a certain Land Subdivision Plan for Ritner Park Associates, recorded on March 16, 1984 in Cumberland County Plan Book 45, Page 46, bounded and described in accordance with said Land Subdivision Plan, as follows, to wit: BEGINNING at a point on the eastern boundary line of Industrial Drive (a 60' wide right of way containing a paved cartway having a width of 36', more or, less); and at the northwestern oomer of Parcel No. 2 on said Land Subdivision Plan; thence extending from said beginning point along the astern boundary line of Industrial Drive North 17 degrees 50 minutes 30 seconds West a distance of 208.13 feet to a point on the southern line of Parcel No. 3 on the above referenced Land Subdivision Plan; thence along said boundary line North 72 degrees' 9 minutes 30 seconds East a distance of 500 feet to a point along lands now or formerly of Carlisle Syntex Systems; thence along said boundary line South 17 degrees 50 minutes 30 seconds East a distance of 208.13 feet to a point at the northeastern corner of Parcel No. 2 on said Land Subdivision Plan; thence along said Parcel No. 2 South 72 degrees 9 minutes 30 seconds West a distance of 500 feet to a point, being the point or place of BEGINNING. CONTAINING 2.389 acres, more or less. BEING the same premises which Benedict B. Randolph by deed dated February 9, 2000 and recorded February 10, 2000 in Cumberland County Record Book 216, Page 64, granted and conveyed unto Pennsy Supply, Inc., Grantor and Party of the First Part herein. ?p 134314.1 1110W C. r+ .???pp r.31t 4u BQOK 2$ PACE4$87 .H ?MGm+pW pN C4??w?f 4ca ?'NN?. c41t T?J?1 4 pvN?.ABdOi?N WOO cx k,?'f j3 Case 1:98-cv-00087-SHR Document 121 Filed 12/19/2007 Linda J. Olsen, Esquire PA I. D. 92858 Thomas W. Scott, Esquire PA I.D. 15681 Killian & Gephart, LLP 218 Pine Street P. O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 lolsen(a killianaephart.com tscott(-aWllianZephart.com IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA Robert M. Mumma, II Grantor Retained Annuity Trust; Robert M. Mumma, II and Susan Mumma, Movants V. Benedict B. Randolph V. Pennsy Supply, Inc., Respondent V. Danny L. Turner, Additional Respondent : No. 98-0087 Page 1 of 15 Judge Sylvia H. Rambo FILED ELECTRONICALLY VIA ECF MOTION FOR AN ORDER PURSUANT TO RULE 7(b) TO JOIN AN ADDITIONAL RESPONDENT, TO ENFORCE A SETTLEMENT AGREEMENT AND STIPULATION OF DISMISSAL FOR CONTEMPT AND TO IMPOSE SANCTIONS Case 1:98-cv-00087-SHR Document 121 Filed 12/19/2007 Page 2 of 15 Movants, Robert M. Mumma., II Grantor Retained Annuity Trust ("GRAT"), Robert M. Mumma, II, and Susan Mumma. (collectively "Mumma"), by and through their attorneys, Killian & Gephart, LLP, pursuant to F.R.C.P. 7 (b) hereby file this Motion to Join an Additional Respondent, to Enforce a Settlement Agreement and Stipulation of Dismissal, for Contempt, and to Impose Sanctions, and in support thereof, aver the following: 1. The Parties 1. Movant, Robert M. Mumma, II Grantor Retained Annuity Trust ("GRAT") is a legally established trust entity of which Robert M. Mumma, II is the Grantor and Robert M. Mumma, II and Susan Mumma are the Trustees. The mailing address of the GRAT is P. O. Box 58, Bowmansdale, PA 17008. 2. Movants Robert M. Mumma, II and Susan Mumma are adult individuals, having a legal residence address of 6880 S.E. Harbor Circle, Stuart, FL 34996. 3. Respondent, Pennsy Supply, Inc. (hereinafter "Pennsy"), is a Pennsylvania Corporation with a registered business address C/O CT Corporation System, Philadelphia, Pennsylvania. Pennsy regularly does business in the Commonwealth of Pennsylvania. 2 Case 1:98-cv-00087-SHR Document 121 Filed 12/19/2007 Page 3 of 15 4. On information and belief, Additional Respondent, Danny L. Turner (hereinafter "Tumer"), is an adult individual having an address of 210 Big Pond Road, Shippensburg, Cumberland County, Pennsylvania. II. The Original Dispute 5. The GRAT commenced litigation against Benedict B. Randolph ("Randolph") by filing a Complaint on January 16, 1998 in the United States District Court for the Middle District of Pennsylvania and docketed to No. 98- 0087. 6. The litigation sought specific performance (or in the alternative, damages) of a December 18, 1995 Letter of Intent between the GRAT and Benedict Randolph (hereinafter "Randolph"), whereby the GRAT alleged Randolph was to convey property at 1607 Industrial Drive, Carlisle, Pennsylvania to the GRAT. 7. Pennsy was granted leave to intervene in the aforesaid litigation, as of right, arguing that enforcement of the Letter of Intent would violate other agreements to which both Pennsy and Mumma (or entities controlled by him) were party. 3 Case 1:98-cv-00087-SHR Document 121 Filed 12/19/2007 Page 4 of 15 8. Pennsy also asserted claims against Randolph for specific performance of its alleged right of first refusal to acquire the 1607 Industrial Drive property and against Mr. Mumma for fraud. 9. Both Pennsy and Mumma are in the business of producing, selling and delivering concrete, concrete by-products and asphalt in and around Cumberland County, Pennsylvania. 10. The 1607 Industrial Drive property had particular value to both Pennsy and Mumma because it is in an industrial park that permits concrete plants in a geographic area where the product is in demand and it is difficult, if not impossible, to site another similar plant due to zoning and other land use regulations. The location of a concrete manufacturing plant is very important to the profitable operation of a concrete manufacturing business due to the costs associated with transporting the product to the end user. 11. All parties denied the allegations set forth in the claims by and against one another in the litigation. 12. Attorneys for Pennsy Supply, Inc. in the above-captioned litigation were Michael A. Finio, Esquire and Stephen M. Donweber, Esquire, Attorney ID Nos. 38872 and 71170, respectively, of the law firm of Saul, Ewing, Remick & 4 Case 1:98-cv-00087-SHR Document 121 Filed 12/19/2007 Page 5 of 15 Saul LLP, Penn National Insurance Tower, 2 North Second Street, 7th Floor, Harrisburg, PA 17101. 13. The case was assigned to the Honorable Sylvia H. Rambo. III. Settlement of the Original Dispute via Stipulation of Dismissal and Settlement Agreement and General Release 14. A non jury trial on the issues presented in the original dispute was scheduled to begin before Judge Rambo on January 18, 2000. 15. Prior to trial the parties reached a settlement of their differences. 16. At the time the trial was set to begin before Judge Rambo on January 18, 2000, Stephen Donweber, Esquire, representing Pennsy Supply, reported to the Court that the "parties to this action have settled all of their claims," said settlement being made pursuant to "the authority of the respective attorneys to settle on behalf of their clients." (Tr. 2-3). A copy of the transcript of the settlement hearing before Judge Rambo is attached hereto as Exhibit "A." 17. A Stipulation of Dismissal ("Stipulation") was read into the record, the terms of which were subsequently reduced to writing in a Settlement Agreement and General Release ("Settlement Agreement"). 5 Case 1:98-cv-00087-SHR Document 121 Filed 12/19/2007 Page 6 of 15 18. The Stipulation and ultimate Settlement Agreement provide, in pertinent part: 2. All claims in the above action have been settled on the following basis: a. Penny Supply, Inc. will purchase the property at 1607 Industrial Drive in Carlisle, Pennsylvania from Ben Randolph for $300,000. At settlement, the proceeds of this payment shall be divided as follows: $217,500 shall be paid to Benedict Randolph and $82,500 shall be paid to the Robert M. Mumma, II Grantor Retained Annuity Trust in care of Robert M. Mumma., II Trustee. Pennsy Supply will get title and the deed to the Carlisle property at 1607 Industrial Drive. b. Penny will also give Robert M. Mumma, II a right of first refusal to purchase the property at 1607 Industrial Drive which will be triggered on Pennsy's future receipt of a bona fide offer to purchase the property from a third party which Pennsy is willing to accept. Pennsy will give Mumma twenty (20) days to exercise this right and ninety (90) days to close from the date of the exercise. A copy of the Stipulation is attached hereto as Exhibit "B." A copy of the Settlement Agreement attached hereto as Exhibit "C." 19. According to the terms of the Stipulation, failure to comply with the terms of the Stipulation "will result in proceedings for contempt against the non- complying party." See Exhibit "B," paragraph 5. 20. Attorneys for Pennsy Supply, Inc. (Michael A. Finio, Esquire or Stephen M. Donweber, Esquire) executed the Stipulation on January 18, 2000. 6 Case 1:98-cv-00087-SHR Document 121 Filed 12/19/2007 Page 7 of 15 21. The Stipulation was approved by the Honorable Sylvia H. Rambo and entered of record on January 18, 2000 at document number 114. 22. The docket entry reads: STIPULATION AND ORDER signed by cnsl and Judge Sylvia H. Rambo OF DISMISSAL: 1) All clms in the above action are hereby dismissed with prejudice by all parties. 2)3)4)5) See order for the details. (emphasis added). 23. On January 28, 2000, the parties entered into a Settlement Agreement, as Ordered by the Stipulation. The Settlement Agreement contains exactly the same terms as the Stipulation. 24. The Settlement Agreement was executed by Donald Eshleman, President of Pennsy Supply, Inc., and his signature was witnessed by Matthew M. Haar, Esquire, an attorney with Saul Ewing who also represented Pennsy in this matter. 25. The language of both the Stipulation approved on January 18, 2000 and the Settlement Agreement dated January 28, 2000 is clear and explicit. 7 Case 1:98-cv-00087-SHR Document 121 Filed 12/19/2007 Page 8 of 15 IV. Breach of the Stipulation of Dismissal and the Settlement Agreement and General Release 26. Movants have learned that on July 11, 2007, Pennsy Supply sold the 1607 Industrial Drive property that was at the heart of the original dispute and is subject to Mr. Mumma's right of first refusal pursuant to the Settlement Agreement to Turner, as evidenced by Special Warranty Deed recorded in Cumberland County Record Book 280, Page 4684. A copy of the Deed is attached hereto as Exhibit "D." 27. The deed from Pennsy to Turner contains a restrictive covenant that the property conveyed by the deed is not to be "the site or location of, the manufacture or production of concrete." 28. The Realty Transfer Tax Statement of Value accompanying the Special Warranty Deed appears to have been signed by Michael A. Finio, Esquire, Saul Ewing. A copy of the Realty Transfer Tax Statement of Value is attached hereto as Exhibit "E." 29. Penny's receipt of Turner's offer to purchase the property, which Pennsy was willing to accept, required Pennsy to notify Mumma of its receipt of a 8 Case 1:98-cv-00087-SHR Document 121 Filed 12/19/2007 Page 9 of 15 bona fide offer to purchase the property from a third party and triggered Mumma's right of first refusal. 30. Neither Pennsy Supply nor its counsel gave Robert M. Mumma, II any notice of the receipt of an offer to purchase the property by Turner. 31. The sale of the property at 1607 Industrial Drive, Carlisle, Pennsylvania to Turner on July 11, 2007 without notice to Mumma was a direct violation of the terms of both the Stipulation and the Settlement Agreement. 32. Pennsy's violation of the Stipulation and the Settlement Agreement deprived Mumma of the opportunity to exercise his right of first refusal and acquire the property. 33. Mumma wishes to exercise his rights and to acquire Pennsy's entire right, title and interest in the property, as required by the terms of the Stipulation and Settlement Agreement. 34. Mumma seeks specific performance of the Stipulation of Dismissal and the underlying Settlement Agreement and General Release through this Honorable Court, which explicitly retained jurisdiction in this matter as set forth in the settlement documents. 35. Mumma is willing to match the purchase price paid by Turner. 9 Case 1:98-cv-00087-SHR Document 121 Filed 12/19/2007 Page 10 of 15 36. As a result of Penny's violation of the terms of the Stipulation and Settlement Agreement, Mumma has suffered as yet undetermined damages on account of his inability to acquire the 1607 Industrial Drive property in July of 2007 and to operate a portion of his concrete manufacturing and supply business from that location. 37. Pennsy Supply was represented by the Law Firm of Saul Ewing in the sale of the 1607 Industrial Drive property to Turner, specifically Michael A. Finio, Esquire and Matthew Haar, Esquire. 38. Pennsy Supply and their counsel, the Law Firm of Saul Ewing, specifically including but not limited to Michael A. Finio, Esquire and Matthew Haar, Esquire, knew the terms and conditions under which the above-captioned litigation was dismissed and that the property at 1607 Industrial Drive, Carlisle, Pennsylvania was encumbered by Mumma's right of first refusal. 39. Jurisdiction to enforce the Stipulation and the Settlement Agreement remains with this Honorable Court pursuant to paragraph 4 of the Stipulation of Dismissal dated January 18, 2000. 40. Respondent Pennsy's conduct and that of its counsel in breaching the terms and conditions of the Stipulation and Settlement Agreement requires the enforcement of the obligations of the Settlement Agreement and warrants the 10 Case 1:98-cv-00087-SHR Document 121 Filed 12/19/2007 Page 11 of 15 imposition of sanctions against Pennsy Supply, Inc. for contempt and also for the payment of Mumma's losses and expenses, including attorneys' fees, incurred as a result of the violation of the Settlement Agreement and General Release and the Stipulation of Dismissal and their enforcement through this action. V. Notification of Breach 41. On September 20, 2007, Mumma's counsel notified Michael Finio, Esquire that Pennsy Supply, Inc. was in breach of the Settlement Agreement and the Stipulation of Dismissal. A copy of said Notice is attached hereto as Exhibit "F." 42. By correspondence dated September 27, 2007 Mr. Finio advised counsel for Mumma that he was "not directly involved in the litigation," that Mr. Donweber and Ms. Wagner, "who helped to close the 2000 transfer from Randolph to Pennsy" are no longer associated with Saul Ewing, and that he was "investigating the issues" raised in counsel for Mumma's September 20, 2007 Notice. A copy of Mr. Finio's letter is attached hereto as Exhibit "G." 43. There has been no further response from Attorney Finio regarding this matter since his letter of September 27, 2007. 11 Case 1:98-cv-00087-SHR Document 121 Filed 12/19/2007 Page 12 of 15 44. On October 3, 2007 counsel for Mumma spoke with No Otto, Esquire, counsel for Turner, and advised him of the alleged breach of the Settlement Agreement and Stipulation of Dismissal by Pennsy. VI. Joinder of Danny L.Turner 45. The property was indexed as lis pendens on February 19, 1998 in the Cumberland County Court of Common Pleas at No. 98-950 CIVIL. 46. On information and belief, the existence of the indexed Us pendens was known to Danny L. Turner and/or his counsel prior to the time Danny L. Turner purchased the property from Pennsy Supply, Inc. on July 11, 2007. 47. At no time did Danny L. Turner or his counsel contact Mumma to ascertain the status of the dispute that led to the indexing of the lis pendens. Had they done so, they would have been advised that the settlement agreement that led to the discontinuance of the litigation clearly provided Mumma with a right of first refusal, which he was prepared to exercise. 48. Turner knew or should have known that the 1607 Industrial Drive property was subject to Mumma's right of first refusal. 49. In order for this court to properly enforce the Stipulation of Dismissal and the Settlement Agreement and General Release, Turner should be 12 Case 1:98-cv-00087-SHR Document 121 Filed 12/19/2007 Page 13 of 15 joined as an Additional Respondent so as to subject him to the jurisdiction of the Court. WHEREFORE, Movants respectfully request that this Honorable Court issue an Order that: (a) Joins Danny L. Turner as an Additional Respondent to this action, subjecting him to the jurisdiction of this court; (b) Holds Pennsy Supply, Inc. in contempt for failing to notify Mumma of the receipt of a bona fide offer from a third party to purchase the property at 1607 Industrial Road, Carlisle, Pennsylvania, which would have triggered Mumma's right of first refusal; (c) Voids the transaction by which Pennsy purported to convey the property to Turner; (d) Orders Pennsy Supply, Inc. to convey all of its right, title and interest in the 1607 Industrial Drive property to Mumma or Mumma's designee within 90 days of the Order upon payment by Mumma to Pennsy of $430,123.00; (e) Imposes sanctions upon Pennsy Supply in the amount of all transfer taxes, title fees, legal fees, costs and other expenses incurred by 13 Case 1:98-cv-00087-SHR Document 121 Filed 12/19/2007 Page 14 of 15 Mumma in conjunction with the acquisition of the 1607 Industrial Drive property from Pennsy; (f) Schedules a hearing at which time Mumma may establish all consequential damages, including but not limited to lost profits and lost opportunity suffered as a result of Pennsy's breach of the Settlement Agreement; (g) Imposes sanctions on Pennsy in the amount of all damages suffered by Mumma; (h) Orders Pennsy to pay all attorneys' fees and costs incurred by Mumma in enforcing the Settlement Agreement, acquiring the property and establishing damages; and 14 Case 1:98-cv-00087-SHR Document 121 Filed 12/19/2007 Page 15 of 15 (i) Grants whatever additional relief, including additional monetary sanctions against Pennsy Supply, Inc. and/or its counsel as this Honorable Court deems just and appropriate. Respectfully submitted, Al Linda J. Olsen Thomas W. Scott, Esquire Attorney I.D. No. 15681 Linda J. Olsen, Esquire Attorney I.D. No. 92858 KILLIAN & GEPHART, LLP 218 Pine Street P. O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 Date: December 19, 2007 Attorneys for Movants 15 ?x Case 1:98-cv-00087-SHR Document 134 Filed 03/1412008 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ROBERT M. M II GRANTOR RETAINED ANNUITY UST- ROBERT M. MUMMA, H. and SUSAN MUMMA, Plaintiffs, V. BENEDICT B. R.ANDOLPH, PENNSY SUPPLY INC., and DANNY L. TURNR, Defendants. Civil No. 1:98-CV-0087 JUDGE SYLVIA H. RAMBO MEMORANDUM This is a new chapter in an ongoing dispute over the sale of real property located at 1607 Industrial Drive, in Carlisle, Pennsylvania ("the property"). Currently pending before the court is a motion by Robert M. Mumma, II Grantor Retained Annuity Trust, Robert M. Mumma, H and Susan Mumma (collectively referred to in this opinion as "Mumma") for an order (1) enforcing a settlement agreement and stipulation of dismissal, (2) joining an additional respondent, Danny L. Turner, (3) holding Pennsy Supply, Inc. ("Penny") and its lawyers in contempt for violating the settlement agreement and (4) imposing sanctions. (Doc. 121.) This opinion will only address the court's jurisdiction to enforce the settlement and the joinder of Turner. 1. Background In 1998, Mumma commenced an action in this court against Benedict Randolph ("Randolph) seeking to enforce a letter of intent from Randolph to sell the property to Mumma. Penny, the purchaser of the property from Randolph, intervened in the suit. The parties reached a settlement before trial, and on January Case 1:98-cv-00087-SHR Document 134 Filed 03/14/2008 Page 2 of 7 18, 2000, a stipulation of dismissal was read into the record and signed by the parties and this court. In pertinent part, the stipulation provides as follows: 2. All claims in the above action have been settled on the following basis: b. Penny Supply Inc. will also give Robert M. Mumma, II a right of first refusal to purchase fihe prop?sy at 1607 Industrial Drive which will be tngggerect on Penny's future receipt of a bona fide offer to urchase the property from a thirdparty which Pennsy is willing to accept; Pennsy will give MMumma twenty (20) days to exercise this right and ninety (90) days to close from the date of exercise. 4. This Court shall retain jurisdiction to enforce this Stipulation and the underlying settlement agreement in this action. 5. Failure to comply with the Perms of this Stipulation will result in proceedings for contempt against the non-complying party. (Doc. 121 Ex. B.) February 8, 2000, the settlement agreement was executed by the parties. (Id. Ex. C.) The agreement provided that "Penny hereby gives Robert M. Mumma, II a right of fast refusal to purchase the property at 1607 Industrial Drive which will be triggered on Pennsy's future receipt of a bona fide offer to purchase the property from a third party which Pennsy is willing to accept...." (Id.) On July 11, 2007, Pennsy conveyed the property to Turner. (Doc. 121 Ex. D.) Neither Pennsy nor its counsel notified Mumma of the offer by Turner prior to the sale. Mumma maintains that he was willing to purchase the property at the price Turner paid, but was unable to exercise his right of fast refusal on the property because he was not informed of Turner's offer. On December 19, 2007, after learning of the sale, Mumma filed a motion to enforce the settlement agreement, to join Turner as a party, to find Pennsy and its counsel in contempt, and to impose sanctions. (Doc. 121.) A brief in support was filed on January 16, 2008. (Doc. 123.) With respect to the-enforcement of the settlement agreement, Mumma seeks money damages and specific performance of the right of first refusal to purchase the property. Mumma requests that the court void the. conveyance of the property from Pennsy to Turner and order 2 Case 1:98-cv-00087-SHR Document 134 Filed 03/14/2008 Page 3 of 7 Pennsy to convey the property to Mumma upon tender of the purchase price paid by Turner. On February 4, 2008, Pennsy filed a response (Doc. 126) and a brief in opposition to Mumma's motion (Doc. 127). On February 5, 2008, counsel entered an appearance on behalf of Turner (Doc. 128) and filed a response (Doc. 129) and a brief in opposition (Doc. 130). On February 14, 2008, Mumma filed briefs in reply to Pennsy (Doc. 132) and Turner (Doc. 133). Accordingly, the matter has been fully briefed. II. Discussion Mumma seeks enforcement of the stipulation of dismissal and settlement agreement and joinder of Turner as a necessary party to this litigation. Pennsy and Turner oppose the motion, arguing that this court lacks jurisdiction to enforce the settlement and that joinder of Turner is unnecessary. These issues will be addressed in turn. A. Subject Matter Jurisdiction The court's subject matter jurisdiction over the dispute concerning Mumma's right of first refusal to the property has been challenged. Mumma argues that the court has ancillary jurisdiction to enforce the settlement because the court expressly retained such jurisdiction in paragraph four of the stipulation of dismissal. Turner asserts that the dispute concerning the right of first refusal is separate from the settlement agreement and that the court lacks an independent basis for jurisdiction over the matter. The court concludes that it has subject matter jurisdiction over this dispute. In Kokkonen v. Guardian Life Ins. Co. ofAm., 511 U.S. 375, 380-81 (1994), the Supreme Court recognized that a federal district court may exercise ancillary jurisdiction to enforce a court-approved settlement agreement. In 3 Case 1:98-cv-00087-SHR Document 134 Filed 03/1412008 Page 4 of 7 Kokkonen, the district court dismissed a complaint with prejudice after the parties reached a settlement agreement. Id. at 377. In the order dismissing the case, the court did not refer to the settlement agreement or expressly retain jurisdiction to enforce the agreement. Id. The Supreme Court held that the district court lacked subject matter jurisdiction to later enforce the settlement agreement because the breach of the settlement agreement did not flout the court's authority. Id. at 380-81. However, the Court went on to explain, The situation would be quite different if the parties' obligation to comply with the terms of the settlement agreement had been made part of the order of dismissal---either by separate provision (such as a provision "retaining jurisdiction" over the settlement agreement) or by incorporating the terms of the settlement agreement in the order. In that even f, a breach of the agreement would be a violation of the order, and ancillary jurisdiction to enforce the agreement would therefore exist. That, however, was not the case here. Id. at 381. By contrast, in this case the terms of the settlement agreement that Mumma seeks to enforce were incorporated into this court's order dismissing the case, and the court expressly retained jurisdiction to enforce the agreement. Cf. Shaffer v. GTE North, Inc., 284 F.3d 500, 504-05 (3d Cir. 2002) (no ancillary jurisdiction where court's dismissal order did not incorporate specific terms of settlement or expressly retain jurisdiction); In re Phar-Mor, Inc. Sec. Lit., 172 F.3d 270, (3d Cir. 1999) (holding that incorporation of the phrase "pursuant to the terms of the Settlement" in the dismissal order was insufficient to confer subject matter jurisdiction to enforce the settlement). Accordingly, this court has ancillary jurisdiction to enforce the settlement agreement. Turner argues that Mumma's current claim is not ancillary to the stipulation of dismissal or settlement, but instead arises from the breach of a wholly separate agreement between Pennsy and Mumma regarding the right of first refusal. Case 1:98-cv-00087-SHR Document 134 Filed 03/1412008 Page 5 of 7 According to Turner, Pennsy satisfied both the stipulation of dismissal order and the settlement by granting Mumma the right of first refusal, which then formed a second agreement. Pennsy's subsequent failure to actually notify Mumma constitutes a breach of the second agreement, but not the stipulation of dismissal or the settlement. Under this logic, Mumma's claim against Pennsy regarding the right of first refusal requires an independent basis for subject matter jurisdiction and cannot be based on ancillary jurisdiction. It is premature for the court to decide whether Pennsy has in fact satisfied the terms of the stipulation of dismissal and settlement. However, with respect to subject matter jurisdiction, the result would be the same in either case. Even if Turner's characterization of the settlement and right of first refusal is accepted and enforcement of the right of first refusal is not ancillary to the prior order, Plaintiff has asserted diversity as an independent basis for subject matter jurisdiction. There is complete diversity among the parties because Plaintiffs are citizens of Florida' and both Pennsy and Taylor are citizens of Pennsylvania. Additionally, the amount in controversy exceeds $75,000. Thus, the court has an independent basis for subject matter jurisdiction over this dispute pursuant to 28 U.S.C. § 1322. B. Joinder of Danny L. Turner Mumma seeks to join Danny L. Turner as a party to this matter pursuant to Fed. R. Civ. Pro. 19(a)(1)(B)(i) as a necessary party to this litigation. Rule 19(a)(1)(B)(i) provides as follows: I As an unincorporated association, the Robert M. Mumma, ll Grantor Retained Annuity Trust is a citizen of every state in which its members are citizens for the purpose of determining diversity jurisdiction. See Trent Realty Ass v. First Fed. Sav. & Loan Assn of Phila., 657 F.2d 29, 31-32 (3d Cir. 1981). Thus, despite the fact that the Robert M. Mumma, H Grantor Annuity Trust has a Pennsylvania address, there is complete diversity because Robert M. Mumma H and Susan Mumma, the trustees, are both citizens of Florida. 5 Case 1:98-cv-00087-SHR Document 134 Filed 03/14/2008 Page 6 of 7 (a) Persons Required to Be Joined if Feasible. (1) Required Party. A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a p if: (B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may: (i) as a practical matter impair or impede the person's ability to protect the interest The court agrees that Turner must be joined. Penny and Tumor base their objections to joinder on the argument that Mumma will be unable to prevail on the merits of his claim. However, because Mumma is asking this court to void the conveyance of the property from Pennsy to Turner, and to order Pennsy to convey the property to Mumma, Turner has an interest in the subject matter of this action which would be difficult to protect if he is absent from this action. Additionally, joinder of Turner is feasible because it will not destroy the court's subject matter jurisdiction due to the complete diversity between Mumma on the one hand and Pennsy and Turner on the other. Accordingly, Turner will be joined as a party to this action. III. Conclusion For the reasons stated above, the court has jurisdiction over Mumma's request to enforce judgment and Turner will be joined as a party. An appropriate order will issue. s/S lvia H. Rambo United States District Judge Dated: March 14, 2008. Case 1:98-cw00087-SHR Document 134 Filed 03/14/2008 Page 7 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ROBERT M. MUMIMLAA, H GRANTOR RETAINS ANNUITY TRUST- ROBERT M. MUMMA, H and 91 9AN MUMMA, Plaintiffs, V. BENEDICT B. RANDOLPH, PENNSY SUPPLY INC., and DANNY L. TURNER, Defendants. Civil No. 1:98-CV-0087 JUDGE SYLVIA H. RAMBO s ORDER IT IS HEREBY ORDERED THAT: (1) Danny L. Turner is JOINED as aparty to this action; (2) A hearing will be held on the merits of Mumma's motion for enforcement of judgment at 9:30 a.m. on April 3, 2008 in Courtroom No. 3, Eighth Floor, Federal Building, Third and Walnut Streets, Harrisburg, Pennsylvania; and (3) A hearing will be held on the issues of contempt and sanctions at a later date. s/S Ivia H. Rambo United States District Judge Dated: March 14, 2008. ?? ? f ?? C fn x W Case 1:98-cv-00087-JEJ Document 162 Filed 11/19/2008 Page 1 of 13 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ROBERT M. MUMMA, If, GRANTOR RETAINED ANNUITY TRUST; ROBERT M. MUMMA, II, and . SUSAN MUMMA Civil No. 98-cv 0087 Movants, V. BENEDICT B. R.ANDOLPH V. PENNSY SUPPLY, INC., Judge John E. Jones III Respondent, V. DANNY L. TURNER, Additional Respondent. MEMORANDUM AND ORDER November 19, 2008 THE BACKGROUND OF THIS ORDER IS AS FOLLOWS: Pending before this Court is a self-styled "First Motion to Enforce Settlement Agreement and Stipulation of Dismissal, to Join Additional Respondent and to Impose Sanctions filed by the Movant" ("Movant's Motion" or "Motion") which was filed on December 19, 2007. (Rec. Doc. 121). For the reasons that I Case 1:98-cv-00087-JEJ Document 162 Filed 11/19/2008 Page 2 of 13 follow, we will grant in part and deny in part the Movant's Motion. FACTUAL BACKGROUND: In 1998, litigation was commenced to the above caption between Robert M. Mumma ("Mumma") and Pennsy Supply, Inc. ("Pennsy') regarding a piece of land in Carlisle (the "Carlisle property" or "Property") that was used for manufacturing concrete. Mumma recorded a lis pendens on the Property in Cumberland County while it was the subject of litigation, which was ultimately resolved through a settlement agreement that was memorialized by a court order. That agreement gave Pennsy ownership of the Property but also granted Mumma a first right of refusal if Pennsy ever chose to sell the Property. Unlike the lis pendens, the right of first refusal was not placed on the public record in Cumberland County. A few years later, Danny L. Turner ("Turner") expressed interest in the Property. He retained counsel who conducted a title search and discovered the aforementioned lis pendens on the Carlisle Property. According to Turner's counsel, the following steps were taken to ensure the Property was not encumbered: (i)Turner received verbal assurances from Pennsy's attorneys at Saul Ewing that the matter involving the lis pendens had been settled and dismissed; (ii) he obtained a copy of the docket report` showing that the underlying case in federal ' The docket entry directed the reader to "see order for details." 2 Case 1:98-cv-00087-JEJ Document 162 Filed 11/19/2008 Page 3 of 13 court that formed the basis of the Ifs pendens had been dismissed with prejudice; and (iii) received an executed seller's affidavit from Pennsy stating that there were no agreements affecting the premises. Upon receiving these assurances, Turner made an offer for the Property. Pennsy did not inform Turner of Mumma's first right of refusal nor did Pennsy notify Mumma that it had a potential purchaser for the Property. Instead, Pennsy ignored Mumma's first right of refusal and sold the Property in 2007 to Turner under a deed restriction that operated in perpetuity, prohibiting Turner, and all future grantees, from using the premises to manufacture concrete. When Mumma later learned of this transaction, he filed a motion to compel Pennsy to comply with the settlement agreement and honor the first right of refusal (the aforementioned "Movant's Motion"). At that time, the case was before our colleague, the Honorable Sylvia Rambo, who, in addition to allowing the joinder of Turner, scheduled a hearing for April 3, 2008 (the "Hearing) to take testimony thereon. (Rec. Doc. 134). PROCEDURAL HISTORY: At the Hearing, Judge Rambo appropriately bifurcated the Movant's Motion into discrete portions, the first concerning the merits of the motion {"merits portion") and the second relating to the nature and extent of relief, if any should be 3 Case 1:98-cv-00087-JEJ Document 162 Filed 11/19/2008 Page 4 of 13 afforded ("relief portion'). Judge Rambo conducted the Hearing and entered an Order directing the parties to address three distinct legal issues? (Rec. Doc. 139). These issues were fully briefed when Judge Rambo entered an Order of Recusal on August 1, 2008. (Rec. Doc. 150). The case was then assigned to Chief Judge Yvette Kane, who, on August 6, 2008, also entered an Order of Recusal that, in turn, resulted in the reassignment of the case to us. (Rec. Doc. 140). Oral argument regarding the briefed legal issues commenced before us on November 13, 2008. After digesting the substance of the arguments at that proceeding, and upon a review of the submissions made prior thereto by all parties, we are now prepared to resolve the merits portion of the Movant's Motion. Accordingly, the following discussion will focus exclusively on the merits portion of the motion; issues of relief will be addressed at a later time. DISCUSSION At bottom, the dispute presents the Court with two overarching issues, which we will address separately below. A DID PENNSY BREACH THE SETTLEMENT AGREEMENT WHEN IT FAILED TO HONOR MUMMA'S FIRST RIGHT These issues were: (i) Was the restrictive use covenant in the Pennsy-Turner deed valid and enforceable?; (ii) May the first right of refusal be recorded and if so, must it in order to be enforceable? (iii) Did the lis pendens impart constructive notice to Turner such that he had a duty to investigate the outcome of the1998 Mumma-Pennsy litigation? 4 Case 1:98-cv-00087-JEJ Document 162 Filed 11/19/2008 Page 5 of 13 REFUSAL AND, W SO, WHAT WAS THE CONSEQUENCE OF THAT BREACH? Despite the somewhat contrived controversy regarding this issue set forth in the briefs filed by Pennsy, at oral argument Pennsy freely admitted that it had in fact breached the settlement agreement when it failed to notify Mumma that it had a potential purchaser for the Carlisle property. Implicit in this concession is Penny's admission that Mumma's first right of refusal was valid and enforceable ' despite Mumma's failure to record it.' After all, if the first right of refusal was void as a result of the failure to record, Penny's failure to notify Mumma of a potential purchaser for the Carlisle property would not have resulted in a breach. The consequence of this breach was, unquestionably, that Pennsy sold the Carlisle property, encumbered by a perpetual use restriction prohibiting concrete manufacturing on it, to Turner. These conclusion lead us to focus on the second and more complex issue that follows. B. WAS TURNER A GOOD FAITH PURCHASERZ When a seller (in this case Pennsy) transfers a parcel of land, in which a a Indeed, we believe this implicit admission to be in line with Pennsylvania law, which has held, "the purpose of the recording statutes is to protect subsequent bona fide purchasers from injuries caused by secret pledges of property." Commonwealth of Pennsylvania Game mm'n v. Ulrich. 565 A.2d 859,861 (Pa. Commw. CG 1989). Therefore, "Pennsylvania recording laws ... do not render invalid an unrecorded interest in land." Id at 862 (citing and v. Pennsylvania Housing Finance Agency, 515 A.2d 1024 (Pa. Commw. Ct. 1986). 5 Case 1:98-cv-00087-JEJ Document 162 Filed 11/19/2008 Page 6 of 13 third party (in this case Mumma) has an interest or right, to a buyer (in this case Turner), the buyer can retain possession of the property unencumbered by the third party's interest or right if the buyer is a "bona fide purchaser." See Wurtzel Y. Park Towne Place Apartments Ltd. P'ship, 2001 WL 1807405 (Pa. Com. Pl. 2001); Sem nko Cam ell, 28 Pa. D&C 618, 620 (Pa. Com. PI. 1982). A "bona fide" or "good faith! 'purchaser is a party who "pay[s] valuable consideration, hats] no notice of the outstanding rights of others,4 and act[s] in good faith." Poffenberger v Goldstein, 776 A.2d 1037, 1042 (Pa. Commw. Ct. 2001) (citations omitted). In this instance, it is not contested that Turner paid valuable consideration for the Carlisle property. However, Mumma does assert that Turner is not a bona fide purchaser because Turner had notice of his first right of refusal and therefore did not pursue his course of conduct in good faith. Turner, obviously, denies this assertion. Both parties use the same sequence of events to bolster their claims, which is as follows. After expressing an interest in purchasing the Property, Turner retained counsel who conducted a title search and discovered that there was a lis pendens on the Property. According to Turner's counsel, the following steps were taken to ` In claiming that one has no notice of the rights of another, the claimant must exercise due diligence in attempting to discover said third party rights. Lyon v.Allev, 130 U.S. 177, 183 (1889). 6 Case 1:98-cv-00087-JEJ Document 162 Filed 11!1912008 Page 7 of 13 ensure the Property was not encumbered (i) he obtained a copy of the docket reports showing that the underlying case in federal court that formed the basis of the Us pendens had been dismissed with prejudice; (ii) he received verbal assurances from Pennsy's attorneys at Saul Ewing that the matter involving the Us pendens had been settled and dismissed with prejudice; and (iii) he obtained an executed seller's affidavit from Pennsy stating that there were no agreements affecting the premises. Mumma argues that the lis pendens discovered by Turner's counsel, in tandem with the docket report's direction to "see order for details," imparted constructive notice to Turner that there was a potential cloud on the title to the Carlisle property. Accordingly, Mumma posits that Turner's decision to proceed with the transaction without discovering the nature of the encumbrance exhibits a failure of due diligence constituting bad faith, which prevents Turner from qualifying as a bona fide purchaser. Mumma avers that Turner could have done any of a number of things, all within the range of due diligence, that would have enabled him to discover the nature of encumbrance. For instance, Mumma argues that Turner could have contacted Mumma himself, since Mumma was the party ' As previously noted, the docket entry directed the reader to "see order for details." At the Hearing, Turner's counsel admitted, with great candor, that upon seeing the order he attempted to access PACER to verify the contents of the order but was unsuccessful in doing so. 7 Case 1:98-cv-00087-JEJ Document 162 Filed 11/19/2008 Page 8 of 13 benefitted by the encumbrance, to inquire about the Us pendens. Additionally, Mumma asserts that Turner could have checked the docket for the settlement order, as was suggested by the docket report. Conversely, Turner aptly notes that "lis pendens" literally means "a pending suit." McCahill v.Roberts, 219 A.2d 306, 308 (Pa. 1996), and that a Us pendens serves to give notice to third parties of one thing and one thing alone: that the property is subject to litigation, Vintage Homes Leven, 554 A.2d 989 (Pa. Super. 1989). Thus, Turner avers that when he discovered a Us pendens on the Property, he was put on notice that it was the subject of litigation. With this knowledge, Turner received two separate assurances from Pennsy's counsel that the Us pendens was no longer on the Property and that the title to the Property was free and clear of any encumbrances. Turner admits that he could have called Mumma to verify the nature of the encumbrance. He also admits that he could have expended additional energy in checking the settlement order. But, as Turner notes, the proper question is not could he have done these things; rather, it is should he have been required to do them. When taken in the context of Turner's course of conduct, we believe that the answer to the latter question is a resounding no. "Due diligence" is defined as "[t)he diligence reasonably expected from, and 8 Case 1:98-cv 00087-JEJ Document 162 Filed 11/19/2008 Page 9 of 13 ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation." BLACK'S LAW DICTIONARY (8th ed.). Therefore, in the instant matter, "due diligence" would be the degree of diligence expected from an ordinary purchaser of real property in attempting to discover encumbrances on the sought-after property. Although we have already recounted Turner's actions (through his counsel Mr. Otto) in this regard, we summarize them again to emphasize our point. In attempting to discover if the Carlisle property was encumbered, Turner (i) obtained a copy of the docket report showing that the underlying case in federal court that formed the basis of the Us pendens had been dismissed with prejudice; (ii) he received verbal assurances from Pennsy's attorneys at Saul Ewing that the matter involving the lfs pendens had been settled and dismissed with prejudice; and (iii) he obtained an executed seller's affidavit from Pennsy stating that there were no agreements affecting the premises. In our considered view, after completing these steps and receiving these assurances, an ordinary purchaser could reasonably expect that the property was free from encumbrances. Turner, through his counsel Mr. Otto, did just that 6 e Indeed, we are of the opinion that Turner's actions were entirely reasonable, and that his inquiries justifiably led him to believe that the Carlisle property was unencumbered. As a matter of fact, our determination that Turner was a bona fide purchaser is buttressed by the actions of both Pennsy and Mumma. First, the seemingly blatant misrepresentations made by Pennsy's counsel to Turner's counsel regarding the clarity of the title to the Carlisle property supports our belief that Turner did not in fact have notice, constructive or otherwise, of Mumma's first right 9 Case 1;98-cv-00087-JEJ Document 962 Filed 11/19/2008 Page 10 of 13 Mumma would have us impose upon Turner a duty that would have required him to obtain assurances from each party involved in the underlying litigation regarding the details of its resolution, despite the fact that the docket showed it to have been fully resolved. Surely, this would saddle Turner and title searchers everywhere with an excessively onerous burden requiring verification of clear title from each and every potential source of any type of encumbrance. This undoubtedly would hamper the free alienability of real property, a concept which is supported by a strong public policy. Peters v. East Penn Twn. Sch Dist 126 A.2d 802, 802 (Pa. Super. 1957). We decline the invitation to impossibly complicate property acquisition by imposing such a heavy burden. Accordingly, we find that Turner was a bona fide purchaser for value. Therefore, Turner's interest is superior to that of Mumma's, meaning that Turner shall retain the Property despite Mumma's first right of refusal. of refusal. Second, while Mumma certainly was not required to record the first right of refusal, his failure to do so is another factor that militates in favor of the conclusion that Turner had no notice of the first right of refusal and therefore acted in good faith when proceeding to consummate the transaction for the Carlisle property. The professional diligence required by counsel in real estate transactions is grindingly difficult on a good day. Simply put, we believe that Mr. Otto did everything that could have been reasonably expected of him in representing Mr. Turner. Having practiced in this same area, we clearly would have followed the same course as Mr. Otto did in examining the title to the Carlisle property. It could never have been within Mr. Otto's contemplation that Penny's counsel's failure to reveal the right of first refusal would be followed by an affidavit from Pennsy itself to the same effect. 10 Case 1:98-cv 00087-JEJ Document 162 Filed 11/19/2008 Page l l of 13 CONCLUSION: We now conclude yet another chapter in this ongoing legal saga between Mumma and Pennsy, which has now effectively protracted itself over the span of a decade. Regrettably for Turner, he was pulled into the vortex of this maelstrom as a result of his purchase of the Carlisle property; however, our resolution will end his participation in the case sub judice. He departs along with the Carlisle property, largely due to Mumma's unfortunate decision, as aforestated, not to record his right of first refusal. The above having been said, we would be remiss in failing to note our disquietude over the conduct by both Pennsy and its counsel. Clearly, absent their acts, which were disingenuous to say the least, we would not be at this point. While the facts and law will not allow us to provide Mumma with his fondest hope, the denial of the property to Turner and effective reinstatement of the right of fast refusal, we will now move to a second phase that will allow Mumma to state a case for alternative relief. NOW, THEREFORE, IT IS ORDERED THAT: 1. The relief requested in the Movant's Motion (Rec. Doc. 121) is GRANTED IN PART and DENIED IN PART to the following 11 Case 1:98-cv-00087-JEJ Document 162 Filed 11/19/2008 Page 12 of 13 extent: a. The Motion is GRANTED insofar as the Movant asserts that Pennsy breached the settlement agreement. b. The Motion is DENIED insofar as the Movant requests the opportunity to exercise his right of first refusal against Turner, the bona fide purchaser for value. C. The Motion is DENIED insofar as the Movant requests the opportunity to purchase the Carlisle Property from Mumma on terms similar or identical to those conditioned upon Turner. 2. Turner shall RETAIN possession of the Carlisle property subject to the terms of his contract with Pennsy. Turner is furthermore DISMISSED from the case. 3. Both Mumma and Pennsy shall submit initial briefs regarding the measure of damages resulting from Pennsy's breach of the settlement by December 2, 2008. The parties shall submit reply briefs, if any, by December 16, 2008. 4. The Court will schedule additional proceedings as necessary after a review of the requested submissions. 12 Case 1:98-cv-00087-JEJ Document 162 Filed 11/19/2008 Page 13 of 13 s/ E Jones III John E. Jones III United States District Judge 13 CERTIFICATE OF SERVICE I do certify that I served a true and correct copy of the within document upon the following by depositing a copy of same in the United States mail, postage prepaid, addressed as follows: Hubert X. Gilroy, Esquire Katie J. Maxwell, Esquire Martson Deardorff Williams Otto Gilroy & Faller Martson Law Offices 10 East High Street Carlisle, PA 17013 Michael A. Finio, Esquire Matthew Haar, Esquire Saul Ewing, LLP Penn National Insurance Tower 2 North Second Street, 7th Floor Harrisburg, PA 17101 Killian & Gephart, LLP 218 Pine Street P. O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 Dated: rev ?7 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date, a copy of the foregoing Response to Supplemental Petition to Strike Lis Pendens has been served on counsel of record addressed as follows and as indicated: By Hand Delivery Hubert X. Gilroy, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 By First Class Mail, Postage Prepaid Michael A. Finio, Esquire Matthew Haar, Esquire Saul Ewing, LLP Penn National Insurance Tower 2 North Second Street, 7th Floor Harrisburg, PA 17101 J an C. ady, eg ssistant =LLI &GEP ART, LLP treet P.O. Box 886 Harrisburg, PA 17108-0886 Dated: December 9, 2008 ?-y s S ' ? ? i .r.; Thomas W. Scott, Esquire Attorney I.D. No. 15681 Linda J. Olsen, Esquire Attorney I.D. No. 92858 KILLIAN & GEPHART, LLP 210 Pine Street P. O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 Attorneys for Respondents lolsen@killiangepharLcom tscott(a,killiangenhart.com ROBERT M. MUMMA, II GRANTOR RETAINED ANNUITY TRUST and ROBERT M. MUMMA, II and SUSAN MUMMA Plaintiffs/Respondents V. BENEDICT B. RANDLOPH Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA NO. 98-950 CIVIL CIVIL ACTION - LAW STATUS REPORT AND REQUEST TO CONTINUE HOLDING PETITION TO STRM LIS PENDENS IN ABEYANCE NOW COMES, the Robert M. Mumma II Grantor Retained Annuity Trust, Robert M. Mumma, II and Susan Mumma, by and through counsel, Thomas W. Scott, Esquire and Killian & Gephart, LLP, and provide this Honorable Court with the following status report concerning related litigation, and sets forth the following: 1. A Praecipe for Lis Pendens was filed in this matter on February 18, 1997 regarding a dispute over the ownership of property located at 1607 Industrial Drive, Carlisle, Cumberland County, Pennsylvania, which is currently the subject of an action pending in the United States District Court for the Middle District of Pennsylvania, docketed at Civil Action No. 98-CV-0087. 2. Attached to the Lis Pendens is a copy of the complaint filed in Federal Court at CV-98-0087, which sets forth a dispute regarding rights to the 6107 Industrial Drive, Carlisle, Cumberland County, Pennsylvania property. 3. On December 10, 2007, Danny L. Turner filed a Petition to Strike the Lis Pendens in this case. 4. An action is pending in the United States District Court for the Middle District of Pennsylvania, and is docketed as Civil Action No. 98-CV-0087 titled Motion for an Order Pursuant to Rule 7(b) to Join an Additional Respondent, to Enforce a Settlement Agreement and Stipulation of Dismissal, for Contempt, and to Impose Sanctions. 5. On April 3, 2008, The Honorable Sylvia H. Rambo issued an Order joining Danny L. Turner to the pending action. Following recusal of Judge Rambo and reassignment to The Honorable John E. Jones III, a hearing was held on November 13, 2008. 6. On November 19, 2008, Judge Jones issued a Memorandum and Order granting possession of the 1607 Industrial Road property to Turner and dismissing Turner from the case. Judge Jones' November 19, 2008 Order is not a final, appealable Order pursuant to Fed. R.Civ. P. 54 2 7. On December 9, 2008, counsel for Turner filed a Motion to Strike the Lis Pendens based upon the entry of Judge Jones' Order dismissing Turner from the case. 8. On December 11, 2008, a hearing was held before the Honorable Judge Guido at which time the parties were present through counsel and afforded the opportunity to make argument with regard to the Petition to Strike the Lis Pendens. 9. At the conclusion of the December 11, 2008 hearing, the Honorable Judge Guido indicated he would defer making any ruling on the Petition to Strike for 45 days to afford the parties an opportunity to file a motion pursuant to Fed. R. Civ. P. 54(b) asking the United States District Court to certify its November 19, 2008 Order as a final judgment subject to appeal. 10. On January 14, 2009 Pennsy Supply, Inc. filed a Motion to Amend the Order of November 19, 2008 to Certify a Final Judgment as provided in Rule 54(b). A copy of the motion is attached as Appendix "A". 11. Counsel for Turner concurs in the motion; counsel for Mumma opposes the motion. 12. Pennsy Supply's Motion to Certify pursuant to Rule 54(b) is currently pending before the Honorable John E. Jones, III. The briefing schedule will be concluded this week and it is anticipated that Judge Jones will issue an order within a reasonable time thereafter, granting or denying the motion. 3 4 13. Without prejudice to the position set forth in Mumma's filed Response to Supplemental Petition to Strike Lis Pendens, that it is improper to strike the lis pendens until such time as a final order has been entered disposing of all claims in the underlying federal court litigation, it is particularly inappropriate for the Court to take any action with respect to the lis pendens until such time as Judge Jones has made a determination whether to certify his decision with regard to Turners' rights to the property as a final appealable order. WHEREFORE, Robert M. Mumma, II, et al., Plaintiffs/Respondents, request this Honorable Court to continue holding the Petition to Strike Lis Pendens in abeyance until such time as Judge Jones has entered an order disposing of the Motion to Amend the Order of November 19, 2008 to Certify Final Judgment for Appeal. Respect bmitted i 796'ma;w. Scott, Esquire Attorney I.D. # 15681 Linda J. Olsen, Esquire Attorney I.D. #92858 KILLIAN & GEPHART, LLP 218 Pine Street P.O. Box 886 Harrisburg, PA 17108-0886 Tel: (717) 232-1851 Dated: January 26, 2009 Attorneys for Plaintiffs/Respondents, Robert M. Mumma, II Grantor Retained Annuity Trust, Robert M. Mumma, II and Susan Mumma 4 w r? Case 1:98-cv-00087-JEJ Document 173 Filed 01/14/2009 Page 1 of 13 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ROBERT M. MUMMA, II, GRANTOR RETAINED ANNUITY TRUST; ROBERT M. MUMMA, II, and SUSAN MUMMA, Movants, V. BENEDICT B. RANDOLPH, V. PENNSY SUPPLY, INC., Respondent, V. DANNY L. TURNER, No. 98-0087 Judge John E. Jones III Additional Respondent. FILED ELECTRONICALLY MOTION TO AMEND ORDER OF NOVEMBER 19, 2008 TO CERTIFY FINAL JUDGMENT FOR APPEAL PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 54(b) Pennsy Supply, Inc. ("Pennsy") respectfully requests that this Court amend its November 19, 2008 Memorandum and Order (Doc. No. 162) (the "Order") i? 147267.2 1/1009 Case 1:98-cv-00087-JEJ Document 173 Filed 01/14/2009 Page 2 of 13 pursuant to Federal Rule of Civil Procedure 54(b) so as (a) to certify that there is no just reason to delay appeal and (b) to direct the issuance of a judgment reflecting the entry of final judgment. A proposed form of order is attached. The averments supporting this motion are: 1. The Order granted in part and denied in part the "Motion for an Order Pursuant to Rule 7(b) to Join an Additional Respondent, to Enforce Settlement Agreement and Stipulation of Dismissal, for Contempt, and to Impose Sanctions" ("Motion") filed by Robert M. Mumma, H, Grantor Retained Annuity Trust, Robert M. Mumma, II, and Susan Mumma ("Mumma"). 2. In denying the Motion, the Order effectively refused to allow Mumma, pursuant to a right of first refusal for 1607 Industrial Drive, Carlisle (the "Property"), to undo Pennsy's sale of the Property to Danny L. Turner ("Turner") because Turner was determined to be a bona fide purchaser for value who had no notice of the right of first refusal, which Mumma had failed to record. 3. The Order also denied Mumma's request to purchase the Property on terms similar or identical to those contained in the Pennsy-to-Turner transaction. The Order allowed Turner to retain possession of the Property, subject to the terms of his contract with Pennsy, and dismissed Turner from the case. 147267.2 1114M 2 Case 1:98-cv-00087-JEJ Document 173 Filed 01/14/2009 Page 3 of 13 4. The Order further directed the remaining parties, Pennsy and Mumma, to submit initial briefs regarding the measure of damages resulting from Pennsy's breach of the settlement agreement in the underlying litigation. 5. Rule 54(b) provides: When an action presents more than one claim for relief ... or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities. Fem. R. Civ. P. 54(b) (emphasis added). 6. Accordingly, to be considered a final, appealable order, Rule 54(b) requires (a) a specific, express finding that there is no just reason for delaying an appeal, and also (b) a specific, express direction by the Court for the Clerk of Court to enter a final judgment. Appellate courts also instruct that it is a "best practice" for district courts to include an explanation of the court's decision to certify a judgment for appeal. Carter v. City of Philadelphia, 181 F.3d 339, 346 (3d Cir. 1999). 7. In determining whether there is "no just reason for delay," courts consider the following five factors: 1472672 V14M 3 Case 1:98-cv-00087-JEJ Document 173 Filed 01/14/2009 Page 4 of 13 (1) the presence or absence of a claim or counterclaim which could result in a set-off against the judgment sought to be made final; (2) the relationship between the adjudicated and unadjudicated claims; (3) the possibility that the need for review might or might not be mooted by future developments in the district court; (4) the possibility that the reviewing court might be obliged to consider the same issue a second time; and (5) miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like. Waldorf v. Shuta, 142 F.3d 601, 609 (3d Cir. 1998) (quoting Waldorf v. Borough of Kenilworth, 959 F. Supp. 675, 679 (D.N.J. 1997)). 8. Pennsy and Mumma each filed an opening brief on the measure of damages on December 12, 2008 (Doc. Nos. 168 & 169). Mumma's brief clearly stated that he "is not waiving any appeal rights he may have at such time as this Court enters a judgment adjudicating all the claims and all the parties' rights and liabilities as contemplated by F.R.C.P. 54(b)" related to Turner's retention of the Property, the validity of the deed restriction, and Turner's dismissal from the case. Doc. No. 169 at 2 n.1. 9. Mumma also argues that the appropriate measure of damages is his expectation interest regarding the future operation of a concrete plant on the Property. Id. at 5. Mumma believes that the deed "restriction would not have been effective to limit Mumma's right to utilize the Property" as a concrete plant. Id. at 16. 147267.21/14/09 4 Case 1:98-cv-00087-JEJ Document 173 Filed 01/14/2009 Page 5 of 13 10. The Order allowing Turner to retain the Property subject to the terms of the Pennsy-Turner contract can only also be read to expressly uphold the deed restriction prohibiting use of the Property as a concrete plant, since Turner is bound by the terms of his contract with Pennsy. That issue was squarely before the Court at the initial "liability" stage of this bifurcated proceeding and was fully briefed prior to September 19, 2008, when this Court certified its familiarity with the record under Fed. R. Civ. P. 63. Therefore, if the damages portion of this case proceeds now, the deed restriction is presumptively valid and Mumma's arguments arising from his view of its invalidity are irrelevant as to the measure of damages. In other words, the deed restriction must also be presumed valid as to him and a measure of damages based on what it prohibits would be improper. 11. There is no just reason for delaying the appeal of the Order. Mumma clearly intends to appeal the Order whenever this Court certifies its finality under Rule 54(b). Given that the law of the case makes his current view of the measure of damages improper, it is clear that an appeal now would advance a more efficient resolution of all issues. The other option would be to rule now that only nominal damages are proper, and enter a more comprehensive order that allows Mumma to file an appeal which reflects his full legal theory as to liability and damages and pursue it in a more efficient manner. 147267.2 1/14/09 5 Case 1:98-cv-00087-JEJ Document 173 Filed 01/14/2009 Page 6 of 13 12. An immediate appeal of the Order would also be appropriate considering Turner's current position. While the Court has awarded him title to and possession of the Property, the prospect of an appeal by Mumma clearly prejudices Turner's complete use and enjoyment of the Property, because the decision granting him the Property will not truly be final until either (a) the entry of a final judgment is made and is not appealed, or, (b) the entry of a final judgment is made and on appeal the Third Circuit affirms it, and (c) the time for certiorari passes, or is denied, etc. Until then Turner cannot improve or develop the Property with absolute certainty that it will remain his. To try to sever all ties with Mumma, Turner filed a motion in the Cumberland County Court of Common Pleas to strike off both lis pendens filed by Mumma related to the Property. Following argument on December 11, 2008, Judge Edward E. Guido indicated that he would strike off both lis pendens if Mumma did not appeal the Order to the Third Circuit; the Cumberland County Court's Order recognizes the prejudice to Turner in the absence of an appeal by Mumma. Mumma has until January 26, 2009, to appeal the Order or Judge Guido will strike off the lis pendens. That relief, however, will not determine the ultimate issue in this Court. There cannot be a truly final determination of damages until there is a final determination on Turner's right to keep the Property. 147267.21/14M 6 Case 1:98-cv-00087-JEJ Document 173 Filed 01/14/2009 Page 7 of 13 13. If the current phase of this litigation proceeds without Rule 54(b) certification, discovery is necessary and proof of Mumma's damages at this stage requires the parties and Court to assume the Order will stand. 14. Absent Rule 54(b) certification now, if this Court hears evidence on the damages issue and enters an order accordingly, that order and the November 19 Order will become appealable as of right. On appeal of the "whole case," the Third Circuit would have before it at least these issues: (1) whether it was right to let Turner keep the Property, (2) whether, if the answer to (1) is "yes," the deed restriction was validly imposed, (3) whether, if the answer to (1) is "no," Mumma should get the Property with or without the deed restriction, (4) whether the damages awarded to Mumma, if any, were proper, and (5) if Turner does not keep the Property, whether he is entitled to damages. If the Third Circuit answers "no" to issue (2), this case will most likely be back before this Court for purposes of reassessing (4) and assessing (5) for the first time. Moreover, if the Third Circuit says "no" to issue (1), arguably the entire matter will have to be relitigated in this Court. 15. Therefore, if the Order is not certified, this Court faces the possibility of conducting two trials on damages attributable to Pennsy's breach of the settlement agreement because both allowing Turner to keep the Property and upholding the deed restriction are critical elements of the manner in which M 147267.2 1/14/09 7 Case 1:98-cv-00087-JEJ Document 173 Filed 01/14/2009 Page 8 of 13 damages calculus in this case must be done.' An appeal now of the Order will allow greater certainty in establishing that damages calculus with respect to the interests of all parties, which certainly benefits both the Court and all parties. 16. In conjunction with the preparation for two trials, Pennsy and Mumma face the harsh, costly, time-consuming, and wasteful result of conducting discovery twice, preparing for trial twice, and participating in two trials. 17. Delay in entering a final judgment as to Turner would undermine the federal judiciary's interest in conserving its valuable judicial resources by raising the specter of two separate trials. 18. Examination of the five factors recited by the Waldorf court shows that no just reason for delay exists because: a. this case involves no claim or counterclaim which could result in a set-off against the judgment sought to be made final; b. the adjudicated issues (Turner's status as a bona fide purchaser and the validity of the deed restriction) and unadjudicated issue (damages While the issues of Turner's right to keep the Property and the validity of the deed restriction are critical to how the damages analysis will proceed, those issues are also legally and factually separable from the damages analysis. Thus, the Third Circuit can review those two issues independent of the damages issue upon Rule 54(b) certification. 147267.2 1/14109 8 w I Case 1:98-cv-00087-JEJ Document 173 Filed 01/14/2009 Page 9 of 13 attributable to Pennsy's breach of the 2000 settlement agreement) are independent and separable of each other for the purpose of appellate review;2 C. it is unlikely that the need for review will be mooted by future developments in the district court; d. it is highly unlikely that the reviewing court will have to consider the same issue a second time; and e. certification to the Third Circuit will eliminate the need for two trials on damages, reduce the expense of preparing for two trials, and result in the most efficient use of judicial resources. 19. District courts may stay proceedings pending appeal after Rule 54(b) certification. See, e.u., Instructional Sys., Inc. v. Computer Curriculum Corp., 35 F.3d 813, 818 n.8 (3d Cir. 1994). 20. Given the relationship between the validity of the deed restriction and Turner's status as a bona fide purchaser for purposes of the damages analysis, a stay is appropriate while the Third Circuit hears the appeal or the thirty-day period during which Mumma could appeal passes. As noted above, the ultimate resolution of the adjudicated issues will have a great impact on the measure of damages attributable to Pennsy's breach of the settlement agreement, but the adjudicated issues remain legally distinct and easily reviewable by the Third Circuit without regard to any damages analysis. 147267.2 1/14/09 9 Case 1:98-cv-00087-JEJ Document 173 Filed 01/14/2009 Page 10 of 13 21. Pennsy respectfully requests that this Court amend the Order by adding the following new paragraphs 5, 6, 7, and 8: 5. For the reasons set forth in Pennsy's Motion to Amend to Certify Final Judgment for Appeal Pursuant to Federal Rule of Civil Procedure 54(b), there exists no just reason to delay appeal of this Order Denying Mumma's request to exercise his right of first refusal against Turner, Denying Mumma's request to purchase the Carlisle Property on terms similar or identical to those conditioned upon Turner, and Ordering that Turner shall retain possession of the Carlisle Property subject to the terms of his contract with Pennsy. 6. No just reason to delay appeal exists because (1) this case involves no claim or counterclaim which could result in a set-off against the judgment sought to be made final; (2) the adjudicated issues and unadjudicated issue are independent and separable of each other for the purpose of appellate review; (3) it is unlikely that the need for review will be mooted by future developments before this Court; (4) it is highly unlikely that the reviewing court will have to consider the same issues a second time; and (5) certification will eliminate the need for two trials on damages, reduce the expense of preparing for two trials, and result in the most efficient use of judicial resources. 7. The Clerk of Court is hereby DIRECTED to issue a Judgment entering final judgment in conformity with Federal Rule of Civil Procedure 54(b). 8. Proceedings in this matter are STAYED pending the outcome of Mumma's appeal of the Order or the expiration of the thirty-day time period during which Mumma may file his Notice of Appeal, whichever is later. 1472672 U14109 10 w Case 1:98-cv-00087-JEJ Document 173 Filed 01/14/2009 Page l l of 13 WHEREFORE, Pennsy respectfully requests that this Honorable Court amend its Order of November 19, 2008 in conformity with Federal Rule of Civil Procedure 54(b) in order to certify that there is no just reason to delay appeal and to direct the issuance of a Judgment reflecting the entry of final judgment in favor of Turner. Respectfully submitted, /s/ Michael A. Finio Michael A. Finio, Esquire Matthew M. Haar, Esquire Emily H. Damron, Esquire Saul Ewing LLP 2 North Second Street, 7th Floor Harrisburg, PA 17101 Phone: (717) 257-7576 Date: January 14, 2009 Attorneys for Respondent Pennsy Supply, Inc. 147267.2 1/14M 11 tt Case 1:98-cv-00087-JEJ Document 173 Filed 01/14/2009 Page 12 of 13 CERTIFICATE OF CONCURRENCE I, Matthew M. Haar, Esquire, counsel for Pennsy Supply, Inc., hereby certify that I contacted counsel for Robert M. Mumma, H, Grantor Retained Annuity Trust, Robert M. Mumma, H, and Susan Mumma ("Mumma") and counsel for Danny L. Turner ("Turner") to seek their concurrence in the foregoing Motion. Counsel for Turner concurs in the Motion. Counsel for Mumma opposes the Motion. /s/ Matthew M. Haar Matthew M. Haar, Esquire Dated: January 14, 2009 147267.2 U14/09 12 w Case 1:98-cv-00087-JEJ Document 173 Filed 01/14/2009 Page 13 of 13 CERTIFICATE OF SERVICE I hereby certify that on this date, I served a true and correct copy of the foregoing Motion to Amend Order of November 19, 2008 to Certify Final Judgment for Appeal Pursuant to Federal Rule of Civil Procedure 54(b) upon the following counsel of record via electronic filing: Thomas W. Scott, Esquire Linda J. Olsen, Esquire Killian & Gephart, LLP 218 Pine Street PO Box 886 Harrisburg, PA 17109 Attorneys for Plaintiffs Hubert X. Gilroy, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17103 Attorneys for Danny L. Turner Dated: January 14, 2009 147267.2 I/14M9 /s/ Emily H. Damron Emily H. Damron 13 w Case 1:98-cv-00087-JEJ Document 173-2 Filed 01/14/2009 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ROBERT M. MUMMA, II, GRANTOR RETAINED ANNUITY TRUST; ROBERT M. MUMMA, II, and SUSAN MUMMA, Movants, V. BENEDICT B. RANDOLPH, V. PENNSY SUPPLY, INC., . Respondent, : No. 98-0087 Judge John E. Jones III V. DANNY L. TURNER, Additional Respondent. FILED ELECTRONICALLY ORDER AMENDING NOVEMBER 19,2008, ORDER IN ACCORDANCE WITH FED. R. CIV. P. 54(b) AND NOW, this day of 2009, upon consideration of the Motion to Amend Order of November 19, 2008, to Certify Final Judgment for Appeal Pursuant to Federal Rule of Civil Procedure 54(b), and any responses thereto, it is HEREBY ORDERED that the Motion is GRANTED. In conformity with Federal Rule of Civil Procedure 54(b), the Court's Order of November 19, 2008, in this action is hereby AMENDED to include the following certification in the form of additional paragraphs 5, 6, 7, and 8: 4r Case 1:98-cv-00087-JEJ Document 173-2 Filed 01/14/2009 Page 2 of 2 5. For the reasons set forth in Pennsy's Motion to Amend to Certify Partial Final Judgment for Appeal Pursuant to Federal Rule of Civil Procedure 54(b), there exists no just reason to delay appeal of this Order Denying Mumma's request to exercise his right of first refusal against Turner, Denying Mumma's request to purchase the Carlisle Property on terms similar or identical to those conditioned upon Turner, and Ordering that Turner shall retain possession of the Carlisle Property subject to the terms of his contract with Pennsy. 6. No just reason to delay appeal exists because (1) this case involves no claim or counterclaim which could result in a set-off against the judgment sought to be made final; (2) the adjudicated issues and unadjudicated issue are independent and separable of each other for the purpose of appellate review; (3) it is unlikely that the need for review will be mooted by future developments before this Court; (4) it is highly unlikely that the reviewing court will have to consider the same issues a second time; and (5) certification will eliminate the need for two trials on damages, reduce the expense of preparing for two trials, and result in the most efficient use of judicial resources. 7. The Clerk of Court is hereby DIRECTED to issue a Judgment entering final judgment in conformity with Federal Rule of Civil Procedure 54(b). 8. Proceedings in this matter are STAYED pending the outcome of Mumma's appeal of the Order or the expiration of the thirty-day time period during which Mumma may file his Notice of Appeal, whichever is later. SO ORDERED. BY THE COURT: The Honorable John E. Jones, 1111 a CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date, a copy of the foregoing document has been served on counsel of record addressed as follows and as indicated: By Hand Delivery Hubert X. Gilroy, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 By First Class Mail, Postage Prepaid Michael A. Finio, Esquire Matthew Haar, Esquire Saul Ewing, LLP Penn National Insurance Tower 2 North Second Street, 7th Floor Harrisburg, PA 17101 1 Thomas W. Scott, Esquire Attorney ID #15681 KILLIAN & GEPHART, LLP 218 Pine Street P.O. Box 886 Harrisburg, PA 17108-0886 Dated: January 26, 2009 711 3 '7' r? ,y4 D ..r JAN 2 7 2009 ROBERT M. MUMMA, II GRANTOR RETAINED ANNUITY TRUST and ROBERT M. MUMMA, II and SUSAN MUMMA, V. Plaintiffs/Respondents, BENEDICT B. RANDOLPH, Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 98-950 CIVIL CIVIL ACTION - LAW ORDER OF COURT AND NOW, this day of 2009, upon consideration of the Supplemental Petition to Strike Lis Pendens, the response thereto, argument of counsel, and the Status Report filed by Plaintiffs/Respondents, further action on this matter is continued until such time as the Honorable Judge John E. Jones, III, United States District Court for the Middle District of Pennsylvania, has ruled upon the pending Motion to Amend Order of November 19, 2008 to Certify Final Judgment for Appeal Pursuant to Federal Rule of Civil Procedure 54(b) filed in the related case of Mumma v. Randloph, Pennsy Supply and Danny L. Turner, No. 98- 0087, U.S.D.C.M.D. Pa. Plaintiffs are directed to file a further status report with this Court, with service upon all counsel, within 10 days of the entry of an Order by Judge Jones disposing of the aforesaid motion, or sixty (60) days after the date of this Order, whichs first. T: E. Guido, Judge tx.: ?r 6 :I J R N ( 6001 r_,y, 32H i ?0 I)istribution: ^omas W. Scott, Esquire Killian & Gephart, LLP, 218 Pine Street, PO Box 886, Harrisburg, PA 17108-0886 /Hubert X. Gilroy, Esquire / Martson Law Offices, 10 East High Street, Carlisle, PA 17013 ? ' hael A, Finio, Esquire `/Aaatthew Haar, Esquire Saul Ewing, LLP, Penn National Insurance COPFS mai(? ?/a4?o4 Tower, 2 No. Second St., 7m Fl., Harrisburg, PA 17101 F \FII.ES\C1ients\7436 Turner Hydraulics\7436.43. Motion2Stnke2A Created 9/20/04 006PM Revised: 2/17/09 10.31 AM Hubert X. Gilroy, Esquire Attorney I.D. No. 29943 Katie J. Maxwell, Esquire Attorney I.D. No. 206018 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Petitioner Danny L. Turner ROBERT M. MUMMA, II GRANTOR RETAINED ANNUITY TRUST; ROBERT M. MUMMA, II and SUSAN MUMMA, V. BENEDICT B. RANDOLPH, V. PENNSY SUPPLY, INC., Defendant V. DANNY L. TURNER, Additional Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 98- 950 CIVIL CIVIL ACTION - LAW MOTION TO STRIKE LIS PENDENS Danny L. Turner, by and through his attorneys, MARTSON LAW OFFICES, sets forth the following: 1. Danny L. Turner (Turner) filed a Motion to Strike the Lis Pendens issued in the above captioned action. 2. A hearing was held on the Petition of Turner on December 11, 2008. 3. At the end of the hearing, The Honorable Judge Guido indicated that he would strike the lis pendens unless an appeal of the underlying federal action was filed within forty-five days. 4. By Order of January 29, 2009, this Court continued further action on the Motion to Strike the Lis Pendens pending action by the Federal Court on a Motion to Certify the Final Judgment for Appeal to the Third Circuit Court of Appeals, filed by Pennsy Supply, Inc.. 5. By Order of February 10, 2009, the Honorable John E. Jones, III, denied the Motion of Pennsy Supply, Inc for certification pursuant to Federal Rule of Civil Procedure 54(b) and directed that counsel for Pennsy and Mumma engage in a telephone conference for purposes if proceeding with a discovery schedule on the damage issue in Federal Court. Attached hereto and marked Exhibit `A' is a copy of said Order. 6. Petitioner Turner again renews his Motion to Strike the Lis Pendens and, consistent with the Court's directive at the end of the December 11, 2008 hearing and Petitioner requests the Court to Strike the Lis Pendens in the above action based upon the failure of any appeal being filed in the Federal action. WHEREFORE, Danny L. Turner requests your Honorable Court Strike the lis pendens filed in the above action. Respectfully Submitted, MARTSON FICES (;x Hubert X. Gil oy, Esquire Attorney I.D. No. 29943 Katie J. Maxwell, Esquire Attorney I.D. No. 206018 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date: February 0, 2009 Attorneys for Petitioner Danny L. Turner Case 1:98-cv-00087-JEJ Document 179 Filed 02/10/2009 Page 1 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ROBERT M. MUMMA, II, GRANTOR RETAINED ANNUITY TRUST; ROBERT M. MUMMA, II, and SUSAN MUMMA Civil No. 98-cv-0087 Movants, V. BENEDICT B. RANDOLPH V. PENNSY SUPPLY, INC., Judge John E. Jones III Respondent, V. DANNY L. TURNER, Additional Respondent. MEMORANDUM AND ORDER February 10, 2009 THE BACKGROUND OF THIS ORDER IS AS FOLLOWS: On November 19, 2008, we entered an Order granting in part and denying in part the Motion of Movant Robert M. Mumma ("Mumma") to enforce a 1998 I EXHIBIT D a a Case 1:98-cv-00087-JEJ Document 179 Filed 02/10/2009 Page 2 of 5 settlement agreement he entered into with Respondent Pennsy Supply, Inc.` ("Pennsy"). (Rec. Doc. 162). In short, the settlement agreement provided for, in r the sale of the Carlisle Property to Pennsy and vested in Mumma a first right of refusal should Pennsy choose to sell the property in the future. In our Order of November 19, 2008, we determined that Pennsy breached the settlement agreement by selling the Carlisle Property to Danny L. Turner, a good faith purchaser, without honoring Mumma's first right of refusal.2 At that time, we declined to pass judgment regarding the amount of damages flowing from Pennsy to Mumma; rather, we ordered briefing on that subject, which has been received. On January 14, 2009, Pennsy filed a self-styled "Motion to Amend Order of November 19, 2008 to Certify Final Judgment for Appeal Pursuant to Federal Rule of Civil Procedure 54(b) (the "Motion"). (Rec. Doc. 173). Having been briefed, this Motion is ripe for disposition. DISCUSSION: Essentially, Pennsy implores us to employ the dictates of Federal Rule of ' The settlement agreement involved the present and future disposition of a piece of land in Carlisle (the "Carlisle property" or "Property") that was used for manufacturing concrete. 2 We determined that, as a good faith purchaser for value, Turner was entitled to retain possession of the Carlisle Property under the terms of the Pennsy-Turner contract, which included a restrictive covenant prohibiting the operation of a cement plant on said the Carlisle Property. We further held that Pennsy would be liable to Mumma for breaching the 1998 settlement agreement, but as noted left the precise measure of damages for another day. 2 Case 1:98-cv-00087-JEJ Document 179 Filed 02/10/2009 Page 3 of 5 Civil Procedure 54(b) ("Rule 54") to certify our November 19, 2008 Order as final as to Turner, thereby validating the restrictive covenant, and leave remaining any possible appeal by Pennsy or Mumma as to damages after that portion of the proceedings has been completed. While Pennsy's Motion is creative and perhaps facially alluring, for the reasons that follow, it will be denied. Federal Rule of Civil Procedure 54(b) provides that when an action presents more than one claim for relief or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all claims or parties "only if the court expressly determines that there is no just reason for delay." Fed. R. Civ. P. 54(b). Thus, to certify an order pursuant to Rule 54(b), "the judgment must be final and there must be no just reason for delay in entering the final judgment." Waldorf v. Shuta, 142 F. 3d 601 (3d Cir. 1998). The Third Circuit Court of Appeals has held that "[a] district court may direct the entry of a final judgment pursuant to Rule 54 only when a distinct claim is fully adjudicated." DeJohn v. Tempe University, 537 F.3d 301, 307 (3d Cir. 2008) (holding that claims are not fully adjudicated when the request for damages is not yet determined). Indeed, "[W]here liability has been decided but the extent of damages remains undetermined, there is no final order." Sun Shipbuilding & Dry Dock Co. v. Benefits Review Bd, 535 F.2d 758, 760 (3d Cir. 1976). Case 1:98-cv-00087-JEJ Document 179 Filed 02/10/2009 Page 4 of 5 In light of the foregoing appellate precedent, we will deny the instant Motion since our Order of November 19, 2009 did not determine the amount of damages, meaning that it cannot constitute a "final judgment."' Having disposed of the Motion, we will now proceed to the damages portion of the litigation. Mumma has indicated that discovery would aid in the precise determination of damages and therefore, we will schedule a telephonic conference to discuss this issue, as well as to generally chart a firm course that will lead to an orderly conclusion to this matter. NOW, THEREFORE, IT IS ORDERED THAT: 1. Pennsy's Motion for Certification Pursuant to Federal Rule of Civil Procedure 54(b) (Rec. Doc. 173) is DENIED. 2. A telephonic conference between the Court and all counsel shall be held on February 24, 2009 at 1:30 p.m. Counsel should be prepared to discuss the opening of discovery in aid of determining damages and all other issues relative to the commencement of a hearing regarding same. Counsel for Mumma shall initiate the call. The Court's phone 3 Since we have determined that our Order of November 19, 2008 was not a "final judgment," thereby resolving the instant Motion on that basis, we decline to consider the factors enunciated in Waldorf v. Shuta, 142 F.3d 601, 609 (3d Cir. 1998) for determining whether there is a "just reason" for delaying certification. 4 Case 1:98-cv-00087-JEJ Document 179 Filed 02/10/2009 Page 5 of 5 number is 717-221-3986. J n .J es I U ' Sta istrict Judge F:\FILES\Clients\7436 Turner Hydraulics\7436.43, CertOfserv3 Created: 9/20/04 0.06PM Revised 2/17/09 1036AM 7436 43 Hubert X. Gilroy, Esquire PA I.D. 29943 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 h ilroykmartsonlaw.com Attorneys for Danny L. Turner ROBERT M. MUMMA, II IN THE COURT OF COMMON PLEAS OF GRANTOR RETAINED ANNUITY CUMBERLAND COUNTY, PENNSYLVANIA TRUST; ROBERT M. MUMMA, II and SUSAN MUMMA, NO. 2008- 7187 CIVIL CIVIL ACTION - LAW V. BENEDICT B. RANDOLPH, V. PENNSY SUPPLY, IN., Defendant V. DANNY L. TURNER, Additional Defendant CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of a Hearing Memorandum of Danny L. Turner upon the following by electronic mail as follows on January 27, 2009: Thomas W. Scott, Esquire KILLIAN & GEPHART, LLP 218 Pine Street, P.O. Box 886 Harrisburg, PA 17108 tscott(ci)killian?ephart.com Counsel for Movants Michael A. Finio, Esquire Matthew M. Haar, Esquire SAUL EWING, LLP Penn National Insurance Tower 2 North Second Street, 7,h Floor Harrisburg, PA 17101 mfinioL&saul.com mhaark)saul.com Counsel for Pennsy Supply, Inc. MARTSON LAW OFFICES A *1 Hubert X. Gilroy, 10 East High Stre Carlisle, PA 170 (717) 243-33470 re Dated: February 0, 2009 C C? ' , .o A r p -cs ?A n ROBERT M. MUMMA, II IN THE COURT OF COMMON PLEARF? 20896 ? GRANTOR RETAINED ANNUITY CUMBERLAND COUNTY, PENNSYLVANIA TRUST, and : ROBERT M. MUMMA, II, and SUSAN MUMMA, Plaintiffs V. BENEDICT B. RANDOLPH, Defendant NO. 98 - 950 CIVIL CIVIL ACTION - LAW ORDER OF COURT AND NOW this day of , 2009, upon review of the attached Motion to Strike the Lis Pendens issued in the above matter and after consideration of the record in this case, it is directed that the Lis Pendens filed in the above matter by Robert M. Mumma, II, et al is hereby STRICKEN. x bert X. Gilroy, Esquire cc: omas W. Scott, Esquire ? -'Michael A. Finio, Esquire C'oP 1£S eyla I LVICL alas f :6 y' Se 93j 6DjZ Vic, r01A1 A.ft/AE. C40`4/0 ,_ ? ? ?. ?, ? ..: - Y-3 ?? ?'? ? n ,?. ?? , _. ..,.x. _ ? t? .7 ?"" ?.,) Thomas W. Scott, Esquire PA I.D. 15681 Linda J. Olsen, Esquire PA I. D. 92858 Killian & Gephart, LLP 218 Pine Street P. O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 lolsennakilliangephart.com tscott@killian¢enhart.com ROBERT M. MUMMA, II : IN THE COURT OF COMMON PLEAS GRANTOR RETAINED ANNUITY : CUMBERLAND COUNTY PENNSYLVANIA TRUST; ROBERT M. MUMMA, II AND : SUSAN MUMMA, Plaintiffs : NO. 08-7187 CIVIL TERM V. and BENEDICT B. RANDOLPH NO. 98-950 CIVIL V. PENNSY SUPPLY, INC., Defendant V. DANNY L. TURNER, Additional Defendant PLAINTIFFS' MOTION FOR POST-TRIAL RELIEF NOW COMES, the Robert M. Mumma II Grantor Retained Annuity Trust, Robert M. Mumma, II and Susan Mumma (hereinafter "Mumma"), by and through counsel, Killian & Gephart, LLP, and files the following motion for post trial relief pursuant to Pa. R.C.P. 227.1 and in support thereof sets forth the following: 1. A Praecipe for Lis Pendens was originally filed in this matter on February 19, 1998 to civil docket number 98-0950 regarding a dispute over the ownership of property located at 1607 Industrial Drive, Carlisle, Cumberland County, Pennsylvania, which was and continues to be the subject of an action pending in the United States District Court for the Middle District of Pennsylvania, docketed at Civil Action No. 98-CV-0087.. 2. A second Praecipe for Lis Pendens was filed in this matter on December 9, 2008 regarding the ongoing dispute over the ownership of the property located at 1607 Industrial Drive, Carlisle, Cumberland County, Pennsylvania, which is currently the subject of an action pending in the United States District Court for the Middle District of Pennsylvania, docketed at Civil Action No. 98-CV-0087. 3. A hearing was held before Judge Guido on December 11, 2008. 4. On January 14, 2009 Pennsy Supply, Inc. filed a Motion to Amend the Order of November 19, 2008 to Certify a Final Judgment as provided in Rule 54(b) in the United States District Court for the Middle District of Pennsylvania. 5. On January 26, 2009, Plaintiffs filed a Status Report and Request to Hold Lis Pendens in Abeyance. A copy of Penny's Rule 54(b) motion was attached to that Status Report as Appendix "A." 6. On January 29, 2009, the Honorable Judge Guido issued an Order directing Plaintiffs to file a supplemental status report within ten days of the entry of an Order by Judge Jones disposing of Pennsy's Rule 54(b) Motion. 7. On February 10, 2009, Judge Jones issued a Memorandum and Order denying Penny's request to certify his November 19, 2009 Order as final and scheduling a telephone conference call between Judge Jones and all counsel on February 24, 2009 at 1:30 p.m. A copy of the aforesaid Order is attached hereto as Exhibit "A." 2 8. On February 17, 2009, counsel for Danny L. Tumer filed renewed Motions to Strike Lis Pendens in docket No. 98-950 and also in docket No. 2008-7187. 8. On February 20, 2009, counsel for Mumma timely filed a Response to the renewed Motions to Strike Lis Pendens and also filed a status report as directed by this Court's January 29, 2009 Order. 9. On February 24, 2009, the Honorable Edward E. Guido, following a conference call with all counsel of record, issued Orders striking the Lis Pendens filed to civil docket Nos. 98-950 and 2008-7187. 10. The February 24, 2009 Order decreed that "upon review of the attached Motion to Strike the Lis Pendens issued in the above matter and after consideration of the record in this case, it is directed that the Lis Pendens filed in the above matter by Robert M. Mumma, II, et al is hereby STRICKEN." 11. No transcript of the aforesaid hearing is available because there was no court reporter present in the courtroom at the time of the December 11, 2008 hearing. 12. Plaintiffs' grounds for post-trial relief were all preserved by virtue of having been raised by objections at the hearing and also as set forth in Plaintiffs' Response to Turner's Motion to Strike Lis Pendens. 13. Mumma requests post-trial relief based on the Court's errors of law and abuse of discretion. 3 I. Judge Guido's verbal directive to Mumma to file an appeal in the federal litigation within 45 days following the December 11, 2048 hearing was an error of law and an abuse of discretion. 14. This Court committed an egregious error of law and abuse of discretion when it directed Mumma to file an untimely appeal in the case before the United States District Court for the Middle District of Pennsylvania within forty-five (45) days following the December 11, 2008 hearing before Judge Guido. II. The Lis Pendens should not be stricken because the underlying federal litigation is still pending and there has been no final order issued. A. The November 19, 2008 Order of the Honorable John E Jones III is not a final order and, therefore, is not appealable. 15. Pennsy Supply, Inc. ("Penny") filed a Motion for certification of the November 19, 2008 Order as final pursuant to Fed. R. Civ. P. 54(b) in the federal action before Judge Jones. 16. This Court properly continued further action on Turner's Motions to Strike Lis Pendens pending action by Judge Jones on the Motion to Certify his November 19, 2008 Order as final. 17. By Order of February 10, 2009, the Honorable John E Jones III denied Penny's Motion to Certify the November 19, 2008 Order as final. 18. As a result of Judge Jones' February 10, 2009 Order, the case before the U.S. District Court for the Middle District of Pennsylvania is still pending; there is no final order; and the same is, therefore, not appealable. 4 B. Judge Jones refused to certify the November 19, 2008 Order as final, which would have triggered the period for appeal by any party. 19. Judge Jones found that certification of his November 19, 2008 Order as final was improper under Fed. R. Civ. P. 54(b) because the action presents more than one claim for relief, multiple parties are involved, and the claims of Mumma had not been fully adjudicated. 20. Judge Jones held that "we will deny the instant Motion since our Order of November 19, 2008 did not determine the amount of damages, meaning that it cannot constitute a `final judgment."' (Order at p. 4). 21. Judge Jones based his decision on several Third Circuit cases holding that claims are not fully adjudicated when the request for damages is not yet determined. See DeJohn v. Temple Universitv, 537 F.3d 301, 307 (3d Cir. 2008); Sun Shipbuilding Dry Dock Co. v. Benefits Review Bd.. 535 F.2d 758, 670 (3d Cir. 1976). 22. Judge Jones further "declined to consider the factors enunciated in Waldorf v. Shuta.142 F.3d 601, 609 (3d Cir. 1998) for determining whether there is a `just reason' for delaying certification" based upon his determination that the November 19, 2008 Order was not final until the issue of damages had been resolved. (Order at p. 4, n.3). C. A Lis Pendens is appropriate and should remain of record until such time as there is no pending litigation affecting the property against which the lis pendens was filed. 23. Lis Pendens means, literally, pending lawsuit. Black's Law Dicjtionary, 7th Ed. p. 942-43. 5 24. As a result of Judge Jones' February 10, 2009 Order, the lawsuit in the United States District Court for the Middle District of Pennsylvania, docketed at Civil Action No. 98- CV-0087 affects the property acquired by Turner and is still pending. 25. This Court committed an egregious error of law and abuse of discretion when it struck both the Lis Pendens regarding the Industrial Drive property while a lawsuit is still pending in the federal court. D. Striking a Lis Pendens makes it appear to anyone searching the title to a property that there is no pending litigation affecting the property when, in fact, exactly the opposite is true in this case. 26. The purpose for recording a Lis Pendens is to put the world on notice that there is a pending lawsuit that might affect a property and "that any interests acquired during the pendency of the suit are subject to its outcome." Black's Law Dictionary. 7th Ed. p. 943. 27. Striking the Lis Pendens means that were Turner to attempt to sell or encumber the property during the pendency of the federal litigation, a title searcher would see that the Lis Pendens had been stricken and would have no reason to look further with respect to the status of the federal court litigation. 28. Striking the Lis Pendens has the potential to cause future title litigation that could be avoided by leaving the Lis Pendens in place pending a final order in the federal litigation and any subsequent appeal by any party to that action. 29. This Court committed an egregious error of law and abuse of discretion when it struck both the Lis Pendens affecting the Turner property while a lawsuit is still pending in the 6 federal court, and such action should be overturned, allowing the Lis Pendens to remain of record in Cumberland County. WHEREFORE, Mumma requests that the Lis Pendens docketed to Cumberland County Civil No. 98-950 and No. 08-7187 remain of record and that the striking of the same be held in abeyance pending the issuance of a Final Order by Judge Jones in the Middle District litigation docketed to No. 98-CV-0087 and any appeal by any party following the issuance of the Final Order. III. Motion for new hearing and argument before the Court en banc. 30. Pursuant to Pa. R.C.P. 227.2, it is requested that a new hearing be scheduled and that the Motion for Post-Trial Relief be heard and decided by the court en banc. 31. Judges Edward E. Guido and Edgar B. Bayley have previously ruled upon issues in this matter. WHEREFORE, Mumma requests that this matter be heard and decided by the Court, en banc. Respectfully submitted Thom . Scott, 904pire Attorney I.D. #15681 Linda J. Olsen, Esquire Attorney I.D. #92858 KILLIAN & GEPHART, LLP 218 Pine Street P.O. Box 886 Harrisburg, PA 17108-0886 Tel: (717) 232-1851 Dated: March 5, 2009 Attorneys for Plaintiffs CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date, a copy of the foregoing document has been served on counsel of record addressed as follows and in the manner indicated: By U.S. Mail and Hand Delivery Hubert X. Gilroy, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 By First Class Mail, Postage Prepaid Michael A. Finio, Esquire Matthew Haar, Esquire Saul Ewing, LLP Penn National Insurance Tower 2 North Second Street, 7th Floor Harrisburg, PA 17101 Linda J. lsen, E uire KILLIAN & GEPHART, LLP 218 Pine Street P.O. Box 886 Harrisburg, PA 17108-0886 Dated: March 5, 2009 ROBERT M. MUMMA, H GRANTOR IN THE COURT OF COMMON PLEAS RETAINED ANNUITY TRUST; OF CUMBERLAND COUNTY, ROBERT M. MUMMA, H AND PENNSYLVANIA SUSAN MUMMA, Plaintiffs, NO. 08-7187 CIVIL TERM V. BENEDICT B. RANDOLPH and V. NO. 98-950 CIVIL PENNSY SUPPLY, INC., Defendant, V. : DANNY L. TURNER, Additional Defendant. ORDER OF COURT A AND NOW, thi4A_ d ay of "CA 2009, upon consideration of the Motion for Post-Trial Relief filed by Plaintiffs, it is ORDERED that: (b) A new hearing and argument before the Court+w haw will be held on the day of 2009 in Courtroom No. 3 , at A M.; 41Q) Mae _W _R_-4_-- .11.1 UgMLSL IM r1upoty R5 SM ftd, W! &ITY"22179ek"'44e 98- ge c Court or the Middle t f / .4 Pmnysv-?'rmm DIM urner No. 98-0087, . . Pa. an ap eals THE Edward E. Mido, Judge LDistribution: /'Thomas W. Scott, Esquire Killian & Gephart, LLP, 218 Pine Street, PO Box 886, Harrisburg, PA 17108-0886 ,4Hubert X. Gilroy, Esquire Martson Law Offices, 10 East High Street, Carlisle, PA 17013 ,Xi hael A, Finio, Esquire tthew Haar, Esquire Saul Ewing, LLP, Penn National Insurance Tower, 2 No. Second St., 7`h Fl., Harrisburg, PA 17101 nn ? 00P 1 ex en a-t 3/lal v? d 80 ?d 01 381 uw??. ROBERT M. MUM A, II, GRANTOR RETAINED ANNUITY TRUST; ROBERT M. MUMMA, II,: AND SUSAN MUMMA, Plaintiffs V. BENEDICT B. RANDOLPH . V. PENNSY SUPPLY, INC., Defendant V. DANNY L. TURNER, Additional Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 98-950 CIVIL TERM ORDER OF COURT AND NOW, this 14th day of April, 2009, after having heard the argument of counsel, the motion for Post-Trial Relief/Reconsideration of Plaintiffs is DENIED. By the Court, Edward E. Guido, J. omas W. Scott, Esquire illian & Gephart ubert X. Gilroy, Esquire Martson Law Offices X ,4?ichael A. Finio, Esquire Matthew Haar, Esquire Saul Ewing, LLP v srs 1 9 =6 WV S 18AV 60OZ kXIQNvt-ti. v` 'd ?HI JO 6 ROBERT M. MUMMA, H GRANTOR RETAINED ANNUITY TRUST; ROBERT M. MUMMA, II AND SUSAN MUMMA, Plaintiffs V. BENEDICT B. RANDOLPH 132 Rivercrest Drive Greenville, NC 27858 Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA NO. 98-950 CIVIL NOTICE OF APPEAL Notice is hereby given that Robert M. Mumma, II, Trustee of the Robert M. Mumma, II Grantor Retained Annuity Trust; Robert M. Mumma, II, and Susan Mumma, Plaintiffs above- named, hereby appeal to the Superior Court of Pennsylvania from the Order entered in this matter on the 14th day of April, 2009, which is attached hereto. The Order has been entered in the docket as evidenced by the attached copy of the docket entry. No verbatim record of the proceedings was made in the above-captioned matters. Respectfully Dated: May 14, 2009 _omas W. Scott, Esquire T _F Attorney I. D. #15681 Killian & Gephart, LLP 218 Pine Street P. O. Box 886 Harrisburg, PA 17108 (717) 232-1851 Attorneys for Plaintiffs CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date, a copy of the foregoing Notice of Appeal has been served on counsel of record addressed as follows and in the manner indicated: By First Class Mail, Postage Prepaid Benedict B. Randolph 132 Rivercrest Drive Greenville, NC 27858 with courtesy copy to: Michael A. Finio, Esquire Matthew Haar, Esquire Saul Ewing, LLP Penn National Insurance Tower 2 North Second Street, 7th Floor Harrisburg, PA 17101 Counsel for Pennsy Supply, Inc. By Hand Delivery Hubert X. Gilroy, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 Counsel for Danny L. Turner I hereby certify that I served the foregoing document on the following by hand delivery of a true and correct copy to the Office of the Prothonotary of Cumberland County: The Honorable Judge Edward E. Guido Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 Taryn N. Dixon, Court Administrator Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 Dated: May 14, 2009 Joan C. ady, !,,p al Assistant t T as W. Scott, Esquire KILLIAN & GEPHART, LLP 218 Pine Street, P.O. Box 886 Harrisburg, PA 17108-0886 APR 1 6 2009 ROBERT M. MUMMA, II, GRANTOR RETAINED ANNUITY TRUST; ROBERT M. MUMMA, II,: AND SUSAN MUMMA, Plaintiffs V. BENEDICT B. RANDOLPH V. PENNSY SUPPLY, INC., Defendant V. DANNY L. TURNER, Additional Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 98-950 CIVIL TERM ORDER OF COURT AND NOW, this 14th day of April, 2009, after having heard the argument of counsel, the Motion for Post-Trial Relief/Reconsideration of Plaintiffs is DENIED. By the Court, L I 100 Edward E. Guido, J. Thomas W. Scott, Esquire Killian & Gephart Hubert X. Gilroy, Esquire Martson Law Offices Michael A. Finio, Esquire Matthew Haar, Esquire Saul Ewing, LLP srs iYS511 Cumberland County Prothonotary's Office Page 1 Civil Case Print 1998-00950 MUMMA ROBERT M II ET AL (vs) RANDOLPH BENEDICT B Reference No..: Filed........: 2/19/1998 Case Ty e.....: LIS PENDENS Time.........: 10:04 Execution Date 0/00/0000 Judgmen ..... .00 Judge Assigned: GUIDO EDWARD E Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: General Index Attorney Info MUMMA ROBERT M II PLAINTIFF DORET DAVID M GRANTOR RETAINED ANNUITY TRUST P 0 BOX 2255 614 N FRONT ST HARRISBURG PA 17105 MUMMA ROBERT M II PLAINTIFF DORET DAVID M BOX 508 MCCORMICK RD BOWMANSDALE PA 17008 MUMMA SUSAN PLAINTIFF DORET DAVID M BOX 508 MCCORMICK RD BOWMANSDALE PA 17008 RANDOLPH BENEDICT B DEFENDANT 132 RIVERCREST DR GREENVILLE NC ******************************************************************************** Judgment Index Amount Date Desc RANDOLPH BENEDICT B 2/19/1998 LIS PENDENS ******************************************************************************** * Date Entries ******************************************************************************** - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - 2/19/1998 PRAECIPE FOR LIS PENDENS AND LIS PENDENS ENTERED ------------------------------------------------------------------- 12/10/2007 AMENDMENT AND PETITON TO STRIKE LIS PENDENS - HUBERT X GILROY ATTY FOR PETITIONER DANNY L TURNER ------------------------------------------------------------------- 12/14/2007 RULE TO SHOW CAUSE - 12/14/07 IN RE: PETITIONER'S MOTION TO STRIKE LIS PENDENS - RULE IS HEREBY ISSUED UPON ROBERT MUMMA II GRANTOR RETAINED ANNUITY TRUST ROBERT M MUMMA II AND SUSAN MUMMA TO SHOW CAUSE IF ANY THEY HAVE WHY THE MOTION TO STRIKE LIS PENDENS SHOULD NOT BE GRANTED - THIS RULE IS RETURNABLE AT A HEARING SCHEDULED IN THE COURTHOTTER USE INBYCREDWARD3 ON ------------------------------------------------------------------- 12/20/2007 PRELIMINARY OBJECTIONS IN THE NATURE OF AN OBJECTION TO JURISTICTION BASED ON PENDENCY OF A PRIOR ACTION AND THE NATURE OF A DEMRRER - BY THOMAS W SCOTT ATTY FOR PLFF ------------------------------------------------------------------- 1/10/2008 ORDER OF COURT - 1-09-08 - IN RE: PETITION TO STRIKE LIS PENDENS SCHEDULED 1-10-08 IS CONTINUED GENERALLY - BY EDWARD E GUIDO J - COPIES MAILED 1-11-08 ------------------------------------------------------------------- 2/14/2008 AFFIDAVIT - BY DANNY L TURNER ------------------------------------------------------------------- 11/24/2008 SUPPLEMENTAL PETITION TO STRIKE LIS PENDENS - BY HUBERT X GILROY ATTY FOR PETITIONER ------------------------------------------------------------------- 11/26/2008 ORDER OF COURT - 11/25/08 IN RE: SUPPLEMENTAL PETITION TO STRIKE LIS PENDENS - A RULE IS HEREBY ISSUED UPON ROBERT M MUMMA II GRANTOR RETAINED ANNUITY TRUST ROBERT M MUMMA II AND SUSAN MUMMA TO SHOW CAUSE IF ANY THEY HAVE WHY THE SUPPLEMENTAL MOTION TO STRIKE LIS PENDENS SHOULD NOT BE GRANTED - THIS RULE IS RETURNABLE AT A HEARING SCHEDULED IN THE MATTER IN CR3 CUMBERLNAD COUNTY COURTHOUSE ON 12/11/18 AT 3:00 PM - BY EDWARD E GUIDO J - COPIES 'PYS511 Cumberland County Prothonotary's Office Page 2 Civil Case Print 1998-00950 MUMMA ROBERT M II ET AL (vs) RANDOLPH BENEDICT B Reference No... Filed......... 2/19/1998 Case Typpe..... . LIS PENDENS Time. ... ...: 10.04 Judgment......: .00 Execution Date 0/00/0000 Judge Assigned: GUIDO EDWARD E Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: MAILED 11/26/08 Higher Crt 2.: ------------------------------------------------------------------- 12/09/2008 RESPONSE TO SUPPLEMENTAL PETITION TO STRIKE LIS PENDENS - BY THOMAS W SCOTT ATTY FOR PLFFS ------------------------------------------------------------------- 1/26/2009 STATUS REPORT AND REQUEST TO CONTINUE HOLDING PETITION TO STRIKE LIS PENDENS IN ABEYANCE - BY THOMAS W SCOTT ATTY FOR PLFFS ------------------------------------------------------------------- 1/29/2009 ORDER OF COURT - 1/29/09 IN RE: STATUS REPORT AND REQUEST TO CONTINUE HOLDING PETITION TO STRIKE LIS PENDENS IN ABEYANCE - BY EDWARD E GUIDO J - COPIES MAILED 1/29/09 ------------------------------------------------------------------- 2/17/2009 MOTION TO STRIKE LIS PENDENS - BY HUBERT X GILROY ATTY FOR PETITIONER ------------------------------------------------------------------- 2/25/2009 ORDER OF COURT 2/24/09 IN RE MOTION TO STRIKE LIS PENDENS THE LIS PENDENS FILED BY ROBET M MUMMA II IS HEREBY STRICKEN EDWARD E GUIDO JUDGE COPIES MAILED 2/25/09 ------------------------------------------------------------------- 3/05/2009 PLAINTIFF'S MOTION FOR POST TRIAL RELIEF - BY LINDA J OLSEN ATTY FOR PLFFS ------------------------------------------------------------------- 3/10/2009 - ORD AENEWF //COURT - HEARIING ANDI R AGUMENTRWILLLBESHELLDION 4/R14/09TATR11:0R0EALIMEF IN CR3 CUMBERLAND COUNTY COURTHOUSE - BY EDWARD E GUIDO J - COPIES MAILED 3/10/09 ------------------------------------------------------------------- 4/15/2009 ORDER OF COURT - 4/14/09 - IN RE: MOTION FOR POST-TRIAL ROPIF/RMAOLEDD4R15/09 OF PLFFS IS DENIED - BY EDWARD E GUIDO J - CES - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * Fees & Debits Bw*Bal***PImts/Ad End Bal *********************************** ****** ******************************* JDMT/MISC 9.00 9.00 .00 TAX JDMT/MISC .50 .50 .00 SATISFACTION 5.00 5.00 .00 ------------------------ ------------ 14.50 14.50 .00 ******************************************************************************** * End of Case Information ******************************************************************************** iia TOW*" w1wed, I Mrs unto MR my h" t" sea d "W COW At On". PL G'Aax, / a ? OF THE FILED- PR 209 MAY 14 cof y t a.f W- 4z, Supee-jar CdJ of t Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 c 3014 - 10/99 10/1/99 COMMONWEALTH OF PENNSYLVANIA Karen Reid Bramblett, Esq. Prothonotary Milan K. Mrkobrad, Esq. Deputy Prothonotary Superior Court of Pennsylvania Middle District May 19, 2009 100 Pine Street. Suite 400 Hasrisburr. PA 17101 717-772-1294 www..ruperior.court.state pa.us Re: 843 MDA 2009 Robert M. Mumma, II, Grantor Retained Annuity Trust; Robert M. Mumma, II and Susan Mumma, Appellants V. Benedict B. Randolph Dear : Enclosed please find a copy of the docket for the above appeal that was recently filed in the Superior Court. Kindly review the information on this docket and notify this office in writing if you believe any corrections are required. Appellant's counsel is also being sent a Docketing Statement, pursuant to Pa.R.A.P. 3517, for completion and filing. Please note that Superior Court Dockets are available on the Internet at the Web site address printed at the top of this page. Thank you. Very truly yours, Karen Reid Bramblett, Esq. Prothonotary ALV cc: Hubert Xavier Gilroy, Esq. Mr. Benedict B. Randolph Court Reporter Court Reporter The Honorable Edward E. Guido Judge Mr. Curtis R. Long Prothonotary Carbon Copy Recipient List Addressed To: Thomas W. Scott, Esq. Killian & Gephart, L.L.P. 218 Pine Street Harrisburg, PA 17101 Carbon Copied: Mr. Benedict B. Randolph 132 Rivercrest Drive Greenville, NC 27858-9300 Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Hubert Xavier Gilroy, Esq. Martson Deardorff Williams Otto Gilroy & Faller 10 E High Street Carlisle, PA 17013 Court Reporter Court Reporter Court of Common Pleas of Cumberland County Courthouse, One Courthouse Square Carlisle, PA 17013 The Honorable Edward E. Guido Court of Common Pleas of Cumberland County Cumberland County Courthouse, One Courthouse Sq Carlisle, PA 17013 3014 - 10/99 10/1/99 10:13 A.M. Appeal Docket Sheet Docket Number: Page 1 of 3 May 19, 2009 Superior Court of Pennsylvania 843 MDA 2009 Robert M. Mumma, II, Grantor Retained Annuity Trust; Robert M. Mumma, 11 and Susan Mumma, Appellants V. Benedict B. Randolph Initiating Document: Notice of Appeal Case Status: Active Case Processing Status: May 15, 2009 Awaiting Original Record Journal Number: Case Category: Civil Consolidated Docket Nos.: CaseType: Civil Action Law Related Docket Nos.: 842 MDA 2009 Same Issue(s) SCHEDULED EVENT Next Event Type: Receive Docketing Statement Next Event Due Date: June 2, 2009 Next Event Type: Original Record Received Next Event Due Date: July 13, 2009 5/19/2009 3023 10:13 A.M. Appeal Docket Sheet Superior Court of Pennsylvania Docket Number: 843 MDA 2009 Paqe 2 of 3 May 19, 2009 COUNSEL INFORMATION Appellant Robert M. Mumma, II, Grantor Retained Annuity Trust Pro Se: Appoint Counsel Status: IFP Status: No Appellant Attorney Information: Attorney: Scott, Thomas W. Bar No.: 15681 Law Firm: Killian & Gephart, L.L.P. Appellee Pro Se: IFP Status: Appellee Pro Se: IFP Status Fee Date 5/14/09 5/19/2009 Address: 218 Pine Street Harrisburg, PA 17101 Phone No.: (717)232-1851 Fax No.: (717)238-0592 Receive Mail: Yes E-Mail Address: Receive E-Mail: No Randolph, Benedict B. Appoint Counsel Status: No Appellee Attorney Information: Attorney: Randolph, Benedict B. Bar No.: Law Firm: Address: 132 Rivercrest Drive Greenville, NC 27858-9300 Phone No.: Fax No.: Receive Mail: Yes E-Mail Address: Receive E-Mail: No Turner, Danny L. Appoint Counsel Status: No Appellee Attorney Information: Attorney: Gilroy, Hubert Xavier Bar No.: 29943 Address: 10 E High Street Carlisle, PA 17013 Phone No.: (717)243-3341 Receive Mail: Yes E-Mail Address: Receive E-Mail: No Fee Name Notice of Appeal Law Firm: Martson Deardorff Williams Otto Gilroy & Faller Fax No.: (717)243-1850 FEE INFORMATION Paid Fee Amt Amount 60.00 60.00 Receipt Number 2009SPRMD000425 3023 10:13 A.M. Appeal Docket Sheet Docket Number: Paqe 3 of 3 May 19, 2009 843 MDA 2009 &9& TRIAL COURT/AGENCY INFORMATION Court Below: Cumberland County Court of Common Pleas County: Cumberland Division: Civil Date of Order Appealed From: April 14, 2009 Judicial District: 9 Date Documents Received: May 15, 2009 Date Notice of Appeal Filed: May 14, 2009 Order Type: Order Entered OTN: Judge: Guido, Edward E. Lower Court Docket No.: 98-950 Civil Judge ORIGINAL RECORD CONTENTS Original Record Item Filed Date Content/Description Date of Remand of Record: BRIEFS DOCKET ENTRIES Filed Date Docket Entry/Document Name Party Type Filed By May 15, 2009 Notice of Appeal Filed Appellant Robert M. Mumma, II, Grantor Retained Annuity Trust May 19, 2009 Docketing Statement Exited (Civil) Middle District Filing Office Superior Court of Pennsylvania 5/19/2009 3023 ;;7T! 21kJ7 tiF I rail Fit 3 a ROBERT M. MUMMA, II, : IN THE COURT OF COMMON PLEAS OF GRANTOR RETAINED ANNUITY: CUMBERLAND COUNTY, PENNSYLVANIA TRUST; ROBERT M. MUMMA, II, AND SUSAN MUMMA, Plaintiffs V. BENEDICT B. RANDOLPH : NO. 1998 - 0950 CIVIL TERM V. PENNSY SUPPLY, INC., Defendant V. DANNY L. TURNER, : CIVIL ACTION - LAW Additional Defendant : IN RE: OPINION PURSUANT TO PA R.A.P. 1925 Guido, J., August .4 7 , 2009 Plaintiffs have filed this timely appeal from our order of April 14, 2009, wherein we denied reconsideration of our earlier order striking a lis pendens against property owned by additional Defendant Turner. Those same orders also applied to a companion matter filed at docket number 2008 - 7187 Civil. On July 31, 2009, we filed a R.A.P. 1925 Opinion (copy attached) in response to the appeal at docket number 2008 - 7187 Civil and for the same reasons stated therein we denied reconsideration at the above captioned docket number. az 0S DATE Edward E. Guido, J. i to l'omas W. Scott, Esquire 218 Pine Street P.O. Box 886 Harrisburg, Pa. 17108 ubert X. Gilroy, Esquire 10 East High Street Carlisle, Pa. 17013 ichael A. Finio, Esquire atthew Haar, Esquire Penn National Insurance Tower 2 North Second Street, 7TH Floor Harrisburg, Pa. 17101 sld OF Tr 2009 A? ,, 28 P' I;. 0, l; Case 1:98-cv-00087-JEJ Document 162 Hed 11/19/2008 Page 1 of 13 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ROBERT M. MUMMA, II, GRANTOR RETAINED ANNUITY TRUST; ROBERT M. MUMMA, If, and SUSAN MUMMA : Civil No. 98-cv-0087 Movants, V. , BENEDICT B. RANDOLPH V. PENNSY SUPPLY, INC., Judge John E. Jones III Respondent, V. . DANNY L. TURNER, . Additional Respondent. MEMORANDUM AND ORDER November 19, 2008 THE BACKGROUND OF THIS ORDER IS AS FOLLOWS: Pending before this Court is a self-styled "First Motion to Enforce Settlement Agreement and Stipulation of Dismissal, to Join Additional Respondent and to Impose Sanctions filed by the Movant" ("Movant's Motion" or "Motion'), which was filed on December 19, 2007. (Rec. Doc. 121). For the reasons that Y Case 1:98-cv-00087-JEJ Document 162 Filed 11/19/2008 Page 2 of 13 follow, we will grant in part and deny in part the Movant's Motion. FACTUAL BACKGROUND: In 1998, litigation was commenced to the above caption between Robert M. Mumma ("Mumma") and Pennsy Supply, Inc. ("Pennsy") regarding a piece of land in Carlisle (the "Carlisle property" or "Property") that was used for manufacturing concrete. Mumma recorded a lis pendens on the Property in Cumberland County while it was the subject of litigation, which was ultimately resolved through a settlement agreement that was memorialized by a court order. That agreement gave Pennsy ownership of the Property but also granted Mumma a first right of refusal if Pennsy ever chose to sell the Property. Unlike the lis pendens, the right of fast refusal was not placed on the public record in Cumberland County. A few years later, Danny L. Turner ("Turner') expressed interest in the Property. He retained counsel who conducted a title search and discovered the aforementioned lis pendens on the Carlisle Property. According to Turner's counsel, the following steps were taken to ensure the Property was not encumbered: (i)Turner received verbal assurances from Pennsy's attorneys at Saul Ewing that the matter involving the lis pendens had been settled and dismissed; (ii) he obtained a copy of the docket report' showing that the underlying case in federal 1 The docket entry directed the reader to "see order for details." 2 Case 1:98-cv-00087-JEJ Document 162 Filed 11/19!2008 Page 3 of 13 court that formed the basis of the !is pendens had been dismissed with prejudice; and (iii) received an executed seller's affidavit from Pennsy stating that there were no agreements affecting the premises. Upon receiving these assurances, Turner made an offer for the Property. Pennsy did not inform Turner of Mumma's first right of refusal nor did Pennsy notify Mumma that it had a potential purchaser for the Property. Instead, Pennsy ignored Mumma's fast right of refusal and sold the Property in 2007 to Turner under a deed restriction that operated in perpetuity, prohibiting Turner, and all future grantees, from using the premises to manufacture concrete. When Mumma later learned of this transaction, he filed a motion to compel Pennsy to comply with the settlement agreement and honor the fast right of refusal (the aforementioned "Movant's Motion"). At that time, the case was before our colleague, the Honorable Sylvia Rambo, who, in addition to allowing the joinder of Turner, scheduled a hearing for April 3, 2008 (the "Hearing') to take testimony thereon. (Rec. Doc. .134). PROCEDURAL HISTORY: At the Hearing, Judge Rambo appropriately bifurcated the Movant's Motion into discrete portions, the first concerning the merits of the motion ("merits portion') and the second relating to the nature and extent of relief, if any should be Case 1:98-cv-00087-JEJ Document 162 Filed 11/19/2008 Page 4 of 13 afforded {"relief portion"}. Judge Rambo conducted the Hearing and entered an Order directing the parties to address three distinct legal issues.' (Rec. Doc. 139). These issues were fully briefed when Judge Rambo entered an Order of Recusal on August 1, 2008. (Rec. Doc. 150). The case was then assigned to Chief Judge Yvette Kane, who, on August 6, 2008, also entered an Order of Recusal that, in turn, resulted in the reassignment of the case to us. (Rec. Doc. 140). Oral argument regarding the briefed legal issues commenced before us on November 13, 2008. After digesting the substance of the arguments at that proceeding, and upon a review of the submissions made prior thereto by all parties, we are now prepared to resolve the merits portion of the Movant's Motion. Accordingly, the following discussion will focus exclusively on the merits portion of the motion; issues of relief will be addressed at a later time. DISCUSSION: At bottom, the dispute presents the Court with two overarching issues, which we will address separately below. A. DID PENNSY BREACH THE SETTLEMENT AGREEMENT WHEN IT FAILED TO HONOR MUMMA'S FIRST RIGHT Z These issues were: (i) Was the restrictive use covenant in the Pennsy-Turner deed valid and enforceable?; (ii) May the first right of refusal be recorded and if so, must it in order to be enforceable? (iii) Did the lis pendens impart constructive notice to Turner such that he had a duty to investigate the outcome of the1998 Mumma-Pennsy litigation? 4 Case 1:98-cv-00087-JEJ Document 162 Filed 11/19/2008 Page 5 of 13 REFUSAL AND, IF SO, WHAT WAS THE CONSEQUENCE OF !HAT BREACH? Despite the somewhat contrived controversy regarding this issue set forth in the briefs filed by Pennsy, at oral argument Pennsy freely admitted that it had in fact breached the settlement agreement when it failed to notify Mumma that it had a potential purchaser for the Carlisle property. Implicit in this concession is Penny's admission that Mumma's first right of refusal was valid and enforceable ' despite Mumma's failure to record it.' After all, if the first right of refusal was void as a result of the failure to record, Pennsy's failure to notify Mumma of a potential purchaser for the Carlisle property would not have resulted in a breach. The consequence of this breach was, unquestionably, that Pennsy sold the Carlisle property, encumbered by a perpetual use restriction prohibiting concrete manufacturing on it, to 'burner. These conclusions lead us to focus on the second and more complex issue that follows. B. WAS TURNER A GOOD FAITH PURCHASER? When a seller (in this case Pennsy) transfers a parcel of land, in which a ' Indeed, we believe this implicit admission to be in line with Pennsylvania law, which has held, "the purpose of the recording statutes is to protect subsequent bona fide purchasers from injuries caused by secret pledges of property." Commonwealth of Pennsylvania Game Comm'n v. Ulrich, 565 A.2d 859,861 (Pa. Commw. CG 1989). Therefore, "Pennsylvania recording laws ... do not render invalid an unrecorded interest in land." Id at 862 (citing and v. Pennsylvania Housing Finance Agency. 515 A.2d 1024 (Pa. Commw. Ct. 1986). 5 Case 1:98-cv-00087-JEJ Document 162 Filed 11/19/2008 Page 6 of 13 third party (in this case Mumma) has an interest or right, to a buyer (in this case Turner), the buyer can retain possession of the property unencumbered by the third party's interest or right if the buyer is a "bona fide purchaser." ee Wurtzel v. Park Towne Place Apartments Ltd. P'ship, 2001 WL 1807405 (Pa. Com. Pl. 2001); Semenko v. Campbell, 28 Pa. D&C 618, 620 (Pa. Com. Pl. 1982). A "bona fide" or "good faith" purchaser is a party who "pay[s] valuable consideration, ha[s] no notice of the outstanding rights of others,4 and act[s] in good faith." Poffenberger v. Goldstein, 776 A.2d 1037, 1042 (Pa. Commw. Ct. 2001) (citations omitted). In this instance, it is not contested that Turner paid valuable consideration for the Carlisle property. However, Mumma does assert that Turner is not a bona fide purchaser because Turner had notice of his fast right of refusal and therefore did not pursue his course of conduct in good faith. Turner, obviously, denies this assertion. Both parties use the same sequence of events to bolster their claims, which is as follows. After expressing an interest in purchasing the Property, Turner retained counsel who conducted a title search and discovered that there was a lis pendens on the Property. According to Turner's counsel, the following steps were taken to ` In claiming that one has no notice of the rights of another, the claimant must exercise due diligence in attempting to discover said third party rights. Lyon v.Alley, 130 U.S. 177, 183 (1889). 6 Case 1:98-cv-00087-JEJ Document 162 Filed 11/19/2008 Page 7 of 13 ensure the Property was not encumbered: (i) he obtained a copy of the docket reports showing that the underlying case in federal court that formed the basis of the Us pendens had been dismissed with prejudice; (ii) he received verbal assurances from Penny's attorneys at Saul Ewing that the matter involving the lis pendens had been settled and dismissed with prejudice; and (iii) he obtained an executed seller's affidavit from Pennsy stating that there were no agreements affecting the premises. Mumma argues that the lis pendens discovered by Turner's counsel, in tandem with the docket report's direction to "see order for details," imparted constructive notice to Turner that there was a potential cloud on the title to the Carlisle property. Accordingly, Mumma posits that Turner's decision to proceed with the transaction without discovering the nature of the encumbrance exhibits a failure of due diligence constituting bad faith, which prevents Turner from qualifying as a bona fide purchaser. Mumma avers that Turner could have done any of a number of things, all within the range of due diligence, that would have enabled him to discover the nature of encumbrance. For instance, Mumma argues that Turner could have contacted Mumma himself, since Mumma was the party ' As previously noted, the docket entry directed the reader to "see order for details" At the Hearing, Turner's counsel admitted, with great candor, that upon seeing the order he attempted to access PACER to verify the contents of the order but was unsuccessful in doing so. 7 Case 1:98-cv-00087-JEJ Document 162 Filed 11/19/2008 Page 8 of 13 benefitted by the encumbrance, to inquire about the lis pendens. Additionally, Mumma asserts that Turner could have checked the docket for the settlement order, as was suggested by the docket report. Conversely, Turner aptly notes that "lis pendens" literally means "a pending suit." McCahill v.Roberts, 219 A.2d 306, 308 (Pa. 1996), and that a lis pendens serves to give notice to third parties of one thing and one thing alone: that the property is subject to litigation, Vintage Homes v. Leven. 554 A.2d 989 (Pa. Super. 1989). Thus, Turner avers that when he discovered a Ifs pendens on the Property, he was put on notice that it was the subject of litigation. With this knowledge, Turner received two separate assurances from Pennsy's counsel that the lis pendens was no longer on the Property and that the title to the Property was free and clear of any encumbrances. Turner admits that he could have called Mumma to verify the nature of the encumbrance. He also admits that he could have expended additional energy in checking the settlement order. But, as Turner notes, the proper question is not could he have done these things; rather, it is should he have been required to do them. When taken in the context of Turner's course of conduct, we believe that the answer to the latter question is a resounding no. "Due diligence" is defined as "[t]he diligence reasonably expected from, and 8 Case 1:98-cv-00087-JEJ Document 162 Filed 11/19/2008 Page 9 of 13 ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation." BLACK'S LAW DICTIONARY (8th ed.). Therefore, in the instant matter, "due diligence" would be the degree of diligence expected from an ordinary purchaser of real property in attempting to discover encumbrances on the sought-after property. Although we have already recounted Turner's actions (through his counsel Mr. Otto) in this regard, we summarize them again to emphasize our point. In attempting to discover if the Carlisle property was encumbered, Turner (i) obtained a copy of the docket report showing that the underlying case in federal court that formed the basis of the Us pendens had been dismissed with prejudice; (ii) he received verbal assurances from Pennsy's attorneys at Saul Ewing that the matter involving the lis pendens had been settled and dismissed with prejudice; and (iii) he obtained an executed seller's affidavit from Pennsy stating that there were no agreements affecting the premises. In our considered view, after. completing these steps and receiving these assurances, an ordinary purchaser could reasonably expect that the property was free from encumbrances. Turner, through his counsel Mr. Otto, did just that." 6 Indeed, we are of the opinion that Turner's actions were entirely reasonable, and that his inquiries justifiably led him to believe that the Carlisle property was unencumbered. Asa matter of fact, our determination that Turner was a bona fide purchaser is buttressed by the actions of both Pennsy and Mumma. First, the seemingly blatant misrepresentations made by Pennsy's counsel to Tamer's counsel regarding the clarity of the title to the Carlisle property supports our belief that Turner did not in fact have notice, constructive or otherwise, of Mumma's first right 9 Case 1:98-cv-00087-JEJ Document 162 Filed 11/19/2008 Page 10 of 13 Mumma would have us impose upon Turner a duty that would have required him to obtain assurances from each party involved in the underlying litigation regarding the details of its resolution, despite the fact that the docket showed it to have been fully resolved. Surely, this would saddle Turner and title searchers everywhere with an excessively onerous burden requiring verification of clear title from each and every potential source of any type of encumbrance.' This undoubtedly would hamper the free alienability of real property, a concept which is supported by a strong public policy. Peters v. East Penn Tvc!n?ch. Dist., 126 A.2d 842, 802 (Pa. Super. 1957). We decline the invitation to impossibly complicate property acquisition by imposing such a heavy burden. Accordingly, we find that Turner was a bona fide purchaser for value. Therefore, Turner's interest is superior to that of Mumma's, meaning that Turner shall retain the Property despite Mumma's first right of refusal. of refusal. Second, while Mumma certainly was not required to record the first right of refusal, his failure to do so is another factor that militates in favor of the conclusion that Turner had no notice of the first right of refusal and therefore acted in good faith when proceeding to consummate the transaction for the Carlisle property. The professional diligence required by counsel in real estate transactions is grindingly difficult on a good day. Simply put, we believe that Mr. Otto did everything that could have been reasonably expected of him in representing Mr. Turner. Having practiced in this same area, we clearly would have followed the same course as Mr. Otto did in examining the title to the Carlisle property. It could never have been within Mr. Otto's contemplation that Penny's counsel's failure to reveal the right of first refusal would be followed by an affidavit from Pennsy itself to the same effect. 10 Case 1:98-cv-00087-JEJ Document 162 Filed 11119/2008 Page 11 of 13 CONCLUSION: We now conclude yet another chapter in this ongoing legal saga between Mumma and Pennsy, which has now effectively protracted itself over the span of a decade. Regrettably for Turner, he was pulled into the vortex of this maelstrom as a result of his purchase of the Carlisle property; however, our resolution will end his participation in the case sub judice. He departs along with the Carlisle property, largely due to Mumma's unfortunate decision, as aforestated, not to record his right of first refusal. The above having been said, we would be remiss in failing to note our disquietude over the conduct by both Pennsy and its counsel. Clearly, absent their acts, which were disingenuous to say the least, we would not be at this point. While the facts and law will not allow us to provide Mumma with his fondest hope, the denial of the property to Turner and effective reinstatement of the right of first refusal, we will now move to a second phase that will allow Mumma to state a case for alternative relief. NOW, THEREFORE, IT IS ORDERED THAT: 1. The relief requested in the Movant's Motion (Rec. Doc. 121) is GRANTED IN PART and DENIED IN PART to the following 11 Case 1:98-cv-00087-JEJ Document 162 Filed 11/19/2008 Page 12 of 13 extent: a. The Motion is GRANTED insofar as the Movant asserts that Pennsy breached the settlement agreement. b. The Motion is DENIED insofar as the Movant requests the opportunity to exercise his right of first refusal against Turner, the bona fide purchaser for value. C. The Motion is DENIED insofar as the Movant requests the opportunity to purchase the Carlisle Property from Mumma on terms similar or identical to those conditioned upon Turner. 2. Turner shall RETAIN possession of the Carlisle property subject to the terms of his contract with Pennsy. Turner is furthermore DISMISSED from the case. 3. Both Mumma and Pennsy shall submit initial briefs regarding the measure of damages resulting from Pennsy's breach of the settlement by December 2, 2008. The parties shall submit reply briefs, if any, by December 16, 2008. 4. The Court will schedule additional proceedings as necessary after a review of the requested submissions. 12 Case 1:98-cv-00087-JEJ Document 162 Filed 11/19/2008 Page 13 of 13 s/ John E. Jones III John E. Jones III United States District Judge 13 CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: Superior Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: Robert M. Mumm II Grantor Retained Annuity Trust and Robert M. Mumma 11 and Susan Mumma vs Benedict B. Randolph 1998-950 Civil 843 MDA 2009 The documents comprising the record have been numbered from No.1 to 238, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 09/ 03/2009 Curtis . ong, t Regina Lebo An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. Date Signature & Title Among the Records and Proceedings enrolled in the court of Common Pleas in and for the county of 3 Cu nberland in the Commonwealth of Pennsylvania to No. 8199F°95308ivil Term, 19 is contained the following: COPY OF Appearance DOCKET ENTRY Robert M. Mmma, II Grantor Retained Annuity Trust and Robert M. Mumma, II and Susan Mumma Plaintiffs VS. Benedict B. Randolph **SEE CERTIFED COPY OF DOCKET ENTRIES** Commonwealth of Pennsylvania County of Cumberland ss: I, Curtis R. long , Prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full, true and correct copy of the whole record of the case therein stated, wherein Robert M. Mtmma, I T Pt- . a 1 . Plaintiff, and Benalict R_ Rarvlnlpb Defendant , as the same remains of record before the said Court at No. 9A-950 of C'i vi 1 Term, A. D. 19 . In TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court this 3rd day, A. D.,-. Prothonotary I, Edgar '-Bayley President Judge of the Na 4b Judicial District, composed of the County of Cumberland, do certify that C 13::ti=-R. L=g , by whom the annexed record, certificate and attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County, was, at the time of so doing, and now is Prothonotary in and for said County of 0rnherlanfl in the Commonwealth of Pennsylvania, duly commissioned and qualified to all of whose acts as such full faith and credit are and ought to be given as well in Courts of judicature°°as else here that the said record, certificate and attestation are in due form of law and made y the prop offic Fi .. PrAident Ju ge Commonwealth of Pennsylvania County of Cumberland ss: I, Curtis R. Lug , Prothonotary of the Court of Common Pleas in and for the said County, do certify that the Honorable Edge-6- $.I?l by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time of making thereof, and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere. IN TESTIMONY WHEREOF, 1 have hereunto set my hand and affixed the seal of said Court this 3rd of A. D. Uk2044 7rotbonotary 0 0 K rn 0 CD a m .h a 73 y N o cv O rn ?rJ ro rn d 7d n o n 0 c o z Q rt bq O L? H F-I H i z PYS511 Cumberland County Prothonotary's Office Page 1 Civ il Case Print 1998-00950 MUMMA ROBERT M II ET AL (vs).RANDOLPH BENEDICT B Reference No... Filed.. ... ? 2/19/1998 Case Type...... LIS PENDENS J d Time. 10.04 u gment .... 00 Execution Date 0/00/0000 Judge Assigned: GUIDO EDWARD E Jury Trial.... Disposed Desc.: ------------ Case Comments ---- --------- Disposed Date. i 0/00/0000 H gher Crt 1.: 843 MDA 2009 Higher Crt 2.: ******************************************************************************** General Index Attorney Info MUMMA ROBERT M II PLAINTIFF DORET DAVID M GRANTOR RETAINED ANNUITY TRUST P 0 BOX 2255 614 N FRONT ST HARRISBURG PA 17105 MUMMA ROBERT M II PLAINTIFF DORET DAVID M BOX 508 MCCORMICK RD BOWMANS.DALE PA 17008 MUMMA SUSAN PLAINTIFF DORET DAVID M BOX 508 MCCORMICK RD BOWMANSDALE PA 17008 RANDOLPH BENEDICT B DEFENDANT 132 RIVERCREST DR GREENVILLE NC Judgment Index Amount Date Desc RANDOLPH BENEDICT B 2/19/1998 LIS PENDENS ******************************************************************************** * Date Entries ******************************************************************************** 2/19/1998 PRAECIPE FOR LIS PENDENS ANDILIS PENDENS ENTERED ------------------------------------------------------------------- 12/10/2007 AMENDMENT AND PETITON TO STRIKE LIS PENDENS - HUBERT X-GILROY ATTY FOR PETITIONER DANNY L TURNER -?? 12/14/2007 RULE TO SHOW CAUSE - 12/14/07 IN RE: PETITIONER'S MOTION TO STRIKE ------------------------------------------------------------------- LIS PENDENS - RULE IS HEREBY ISSUED UPON ROBERT MUMMA II GRANTOR RETAINED ANNUITY TRUST ROBERT M MUMMA II AND SUSAN MUMMA TO SHOW CAUSE IF ANY THEY HAVE WHY THE MOTION TO STRIKE LIS PENDENS SHOULD NOT BE GRANTED - THIS RUL IS RETURNABLE AT A HEARING SCHEDULED IN THE MATTER IN CR3 ON 1/10/07 AT 2:30 PM IN CUMBERLAND OUNTY COURTHOUSE - BY EDWARD E GUIDO J - COPIES MAILED 12/1407 ------------------------------------------------------------------- 12/20/2007 PRELIMINARY OBJECTIONS IN THE NATURE OF AN OBJECTION TO JURISTICTION BASED ON PENDENCY OF A PRIOR ACTION AND THE NATURE OF A DEMRRER - BY THOMAS W SCOTT ATTY FOR PLFF ------------------------------------------------------------------- 1/10/2008 ORDER OF COURT - 1-09-08 IN RE: PETITION TO STRIKE LIS PENDENS SCHEDULED 1-10-08 IS CONTINUED GENERALLY - BY EDWARD E GUIDO J - COPIES MAILED 1-11-08 ------------------------------------------------------------------- 2/14/2008 AFFIDAVIT - BY DANNY L TURNER ------------------------------------------------------------------- 9 11/24/2008 SUPPLEMENTAL PETITION TO STRIKE LIS PENDENS - BY HUBERT X GILROY ATTY FOR PETITIONER ------------------------------------------------------------------- 9S 11/26/2008 ORDER OF COURT - 11/25/08 IN RE: SUPPLEMENTAL PETITION TO STRIKE LIS PENDENS - A RULE IS HEREBY ISSUED UPON ROBERT M MUMMA II GRANTOR RETAINED ANNUITY TRUST ROBERT M MUMMA II AND SUSAN MUMMA TO SHOW CAUSE IF ANY THEY HAVE WHY THE SUPPLEMENTAL MOTION TO STRIKE LIS PENDENS SHOULD NOT BE GRANTED - THIS RULE IS RETURNABLE AT A HEARING SCH D ED IN THE MATTER IN CR3 CUMBERLNAD COUNTY COURTHOUSE ON 12?11?18 AT 3:00 PM - BY EDWARD E GUIDO J - COPIES PYS511 Cumberland County Protnonotary's Urrice Page 1 Civil Case Print 1998-00950 MUMMA ROBERT M II ET AL (vs) RANDOLPH BENEDICT B Reference No... Filed......... 2/19/1998 Case Type...... LIS PENDENS Time. .... . 10.04 Judgment......: 00 Execution Date 0/00/0000 Judge Assigned: GUIDO EDWARD E Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: 843 MD 2009 Higher Crt 2.: MAILED 11/26/08 ------------------------------------------------------------------- jjq_/4,/p 12/09/2008 RESPONSE TOO SUPPLEMENTAL PPETITION TO STRIKE LIS PENDENS - BY THOMAS W SCOTT ATTY FOR ------ ------ ------------ ------------- -------- --------- ------------- 16f-1gjf' 1/26/2009 STATUS-REPORT AND REQUEST TO CONTINUE HOLDING PETITION TO STRIKE LIS PENDENS IN ABEYANCE - BY THOMAS W SCOTT ATTY FOR PLFFS -----------------------------------------------------=------------- ?? 1/29/•2009 ORDER OF COURT - 1/29L09 IN RE: STATUS REPORT AND REQUEST TO CONTINUE HOLDING PEETITTION TO STRIKE LIS PENDENS IN ABEYANCE - BY EDWARD E GUIDO J - COPIES MAILED 1/29/09 ------ -------- ----------- ------- ---------------------------------_-- g`_ /g92/17/2009 MOTION TO STRIKE LIS PENDENS - BY HUBERT X GILROY ATTY FOR PETITIONER ---------- =-------------------------------------------------------- ?9f 2/25/2009 ORDER OF COURT 2/24/09 IN RE MOTION TO STRIKE LIS PENDENS THE LIS PENDENS FILED BY ROBET M MUMMA II IS HEREBY STRICKEN EDWARD E GUIDO JUDGE COPIES MAILED 2/25/09 -----------------------------------------------------------,-------- jba-ao93/05/2009 PLAINTIFF'S MOTION FOR POST TRIAL RELIEF - BY LINDA J OLSEN ATTY FOR PLFFS ------------------------------------------------------------------- -/l?-,;2Q/3/10/2009 ORDER OF COURT -_3/10/09 IN RE: PLFFS MOTION FOR POST TRIAL RELIEF - A NEW HEARING AND ARGUMENT WILL BE HELD ON 4/14/09 AT 11:00 AM IN CR3 CUMBERLAND COUNTY COURTHOUSE - BY EDWARD E GUIDO J - COPIES MAILED 3/10/09 ------------------------------------------------------------------- a?D 4/15/2009 ORDER OF COURT 4/14/09 - IN RE: MOTION FOR POST-TRIAL RELIF/RECONSIDE T ON OF PLFFS IS DENIED - BY EDWARD E GUIDO J - P/ ) COPIES MAILED 4 15 09 ------------------------------------------------------------------- 5/14/2009 NOTICE OF APPEAL TO SUPERIOR COURT - BY THOMAS W SCOTT ATTY FOR PLFFS ------------------------------------------------------------------- 7d.) 5/20/2009 SUPERIOR COURT OF PA NOTICE OF APPEAL DOCKETING TO #843 MDA 2009 ------------------------------------------------------------------- aa?-,;3 78/28/2009 OPINION PURSUANT TO PA RAP 1925 - BY THE COURT EDWARD E GUIDO J.- COPIES MAILED 08-28-2009 ------------------------------------------------------------------- 9/03/2009 NOTICE OF DOCKET ENTRIES MAILED TO MICHAEL A FINIO ES MATTHEW HAAR ESQ THOMAS W SCOTT ESQ HUBERT X GILROY ESQ AND B?NEDICT B RANDOLPH - - - LAST ENTRY - - - - - - - - - - - - - - * Escrow Information * Fees & Debits Beg Bal Pymt.s/Adj End Bal JDMT/MISC 9.00 9.00 .00 TAX JDMT/MISC .50 .50 .00 SATISFACTION 5.00 5.00 .00 APPEAL HIGH CT 48.00 48.00 -- -- .00 -------- -------------- 62.50 ------- - - 62.50 - .00 ******************************************************************************** * End of Case Information ******************************************************************************** TRUE COPY zN` In Testimony whereof, I h, _-,re un`^ ' ray hand and the seal of said Court at Carlisle, Pa. This .....3......^ day ..., . ........... .........:-,,.. Prothonotary r ROBERT M. MUMMA, II IN THE COURT OF COMMON PLEAS GRANTOR RETAINED ANNUITY CUMBERLAND COUNTY PENNSYLVANIA TRUST; ROBERT M. MUMMA, II AND SUSAN MUMMA, Plaintiffs V. BENEDICT B. RANDOLPH V. PENNSY SUPPLY, INC., Defendant V. DANNY L. TURNER, Additional Defendant TO THE PROTHONOTARY: NO. 98-950 CIVIL TERM PRAECIPE Please file of record the Order issued by Judge John E. Jones, III of the United States District Court for the Middle District of Pennsylvania attached hereto as Exhibit "A", granting the removal of deceased party, Benedict B. Randolph, from the Distribution List. Said Order further reflects that the name of Benedict B. Randolph shall remain in the caption for the purposes of convenience and continuity. Respectfully submitted Thomds W. Sc(W, Esquire Attorney I.D. #15681 Linda J. Olsen, Esquire Attorney I.D. #92858 KILLIAN & GEPHART, LLP 218 Pine Street P.O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 Dated: November 5, 2009 CERTIFICATE OF SERVICE I do certify that I served a true and correct copy of the within document upon the following by depositing a copy of same in the United States mail, postage prepaid, addressed as follows: Hubert X. Gilroy, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 h ilroy&martsonlaw.com Michael A. Finio, Esquire Matthew Haar, Esquire Saul Ewing, LLP Penn National Insurance Tower 2 North Second Street, 7th Floor Harrisburg, PA 17101 mfinionasaul.com mhaarnsaul.com Estate of Benedict B. Randolph 132 Rivercrest Drive Greenville, NC 27858-9300 Steven J. Fishman, Esquire Commonwealth Keystone Building 400 North Street, 4th Floor Harrisburg, PA 17120-0001 Killian & Gephart, LLP 218 Pine Street P. O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 Dated: November 5, 2009 ?- Pennsylvania Middle District Version 3.2.3 -Pennsylvania Middle D... https://ecf pamd.uscourts.gov/docl/155026525837magic num=850... #*. Case 1:98-cv-00087-JEJ Document 182-5 Filed 10/13/2009 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA Robert M. Mumma, II Grantor Retained Annuity Trust; Robert M. Mumma, II and Susan Mumma, Movants v. 13enedlet B. Randolph V. : Pennsy Supply, Inc., Respondent v. : Danny L. Turner, : Additional Respondent : Civil No. 1:98-CV-0087 Judge John E. Jones III FILED ELECTRONICALLY VIA ECF _:_.,_,AND NOW, this (44k day of eRn;t peg, , 2009, upon consideration of the Motion to Remove Party of Record from Distribution List, IT IS HEREBY ORDERED that the said Motion is GRANTED, as follows: A. Benedict B. Randolph is hereby permanently removed from the Distribution List; and B. Benedict B. Randolph's name shall remain in the caption of the instant case for purposes of convenience and continuity. I of 1 IMMIT 0.1ve 10/14/200912:42 PM BY THE COURT: F?LEt?t?; ?s ;?:; OF THE PR 2009110V -6 P.`1 I : k, 8 a CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: Superior Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: Robert M. Mumm II Grantor Retained Annuity Trust and Robert M. Mumma II and Susan Mumma vs Benedict B. Randolph • 1998-950 Civil 843 MDA 2009 The documents comprising the record have been numbered from No.l to 238, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 09103 /2009 Received in Superior Court SEP 0 4 LU(19 M~a~~~ An additional copy of this certificate is enclosed. Please sign and date couv, thereby acknowled~in~ receipt of this record. Date Signature & Title