HomeMy WebLinkAbout07-10-08
IN RE: ESTATE OF IN THE COURT OF COMMON PLEA'S
ROBERT M. MUMMA r~
. OF CUMBERLAND COL
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PENNSYLVANIA ~ ~~ `=
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NO. 21-86-398 `"''`
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PRELIMINARY OBJECTIONS OF PETITIONER ~ ~ ~
FILED IN RESPONSE TO THE EXECUTRICES' NEW MATTER
TO PETITION TO ORPHANS' COURT DIVISION FOR THE ENTRY
OF THE DATE OF THE DEEMED DENIAL OF EXCEPTIONS UNDER
PENNSYLVANIA ORPHANS' COURT RULE 71(fl
TO: LISA M. MORGAN and BARBARA McK. MUMMA, CO-EXECUTRICES AND
CO-TRUSTEES
YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE
ENCLOSED PRELIMINARY OBJECTIONS WITHIN TWENTY (20) DAYS FROM
SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU.
AND NOW, comes Robert M. Mumma, II, pro se, the Petitioner, who files the following
Preliminary Objections to New Matter under Pa.O.C.R. 3.1 and Pa.R.C.P. 1028(a), stating as
follows:
1. On Apri12, 2008, the Petitioner filed a Petition to Orphans' Court Division For the
Entry of the Date of the Deemed Denial of Exceptions Under Pennsylvania Orphans'
Court Rule 7.1(f), same being comprised of Paragraphs 1 through 63.
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2. On May 13, 2008, Judge Oler issued the following Order of Court:
AND NOW, this 13~' day of May, 2008, upon consideration of the Petition to
Orphans' Court Division for the Entry of the Date of the Deemed Denial of
Exceptions under Pennsylvania Orphans' Court Rule 7.10 (sic), a Rule is hereby
issued upon all interested parties to show cause why the relief requested should not be
granted.
RULE RETURNABLE within 30 days of service.
PETITIONER shall be responsible for service of the above-captioned petition and
order. Proof of Service is to be filed with the Orphans' Court.
3. On May 22, 2008, the Petitioner effectuated service of the Petition and Order; on the
same date, Petitioner filed Proof of Service of same with the Orphans' Court.
4. On June 24, 2008, the Executrices' filed a Response to Petition to Orphans' Court
Division for the Entry of the Date of the Deemed Denial of Exceptions Under
Pennsylvania Orphans' Court Rule 7.1(f) and New Matter.
5. The Executrices' Response sets forth denials at several paragraphs which deny that
their exceptions are deemed denied absent the entry of a date of deemed denial on the
docket; said paragraphs further deny that the failure of the Court to rule upon their
exceptions has any impact upon the validity or effectiveness of the Petitioner's
revocation of disclaimer. See, Response Paragraphs #47, #48, #51.
6. Paragraph #48 of the Executrices' Response provides in its first sentence as follows:
"Pursuant to Rule 7.1(~ of the Orphans' Court Rules, the Clerk of the Orphans'
Court is directed by operation of law to enter a deemed denial on the docket on the
1215` day if the Orphans' Court fails to rule on the exceptions."
7. Paragraph #63 of the Executrices' Response provides in its first sentence as follows:
"On the contrary, Pa.O. C.R. 7.1(f} directs the Clerk of the Orphans' Court to enter
deemed denials on the 121St date following the filing of exceptions."
8. The WHEREFORE Clause of the Executrices' Response requests the Court to deny
the "reliefl' sought by the Petitioner and instead to rule on the exceptions filed by the
Respondents on March 3, 2000.
9. The Executrices' Response contains NEW MATTER at Paragraphs #64 through #66
which avers that the Petitioner's "claims" are barred by the doctrines of laches and
equitable estoppel. See, Response Paragraphs #65 and #66.
10. The WHEREFORE Clause of the Executrices' NEW MATTER requests the Court to
deny the "relief' sought by the Petitioner and instead to rule on the exceptions filed
by the Respondents on March 3, 2000.
11. Approximately three (3) weeks prior to the filing of their Response and NEW
MATTER, the Executrices served the "Response of Barbara McK. Mumma and Lisa
M. Morgan to Robert M. Mumma, II's Requests for Admissions" on June 2, 2008. (A
true and correct copy thereof is attached hereto as Exhibit "A").
12. Paragraph #17 of the aforesaid Requests for Admissions states: "On July 23, 1993,
the Executrices filed a Response to the Petition of Robert M. Frey for Preliminary
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Injunction and Rule to Show Cause which admitted in Paragraph 10 thereof that
Robert M. Mumma, II's disclaimer was ineffective, and which further admitted that
his minor children were not beneficiaries under the Will." (See Exhibit "A" attached
hereto for the Executrices' detailed Response at Paragraph #17).
13. Paragraph #18 of the aforesaid Requests for Admissions states: "Counsel for the
Executrices filed a brief on July 26, 1993 with Judge Sheely which acknowledged that
the disclaimer had been validly revoked and that Robert M. Mumma, II's interests
under the Will were restored via its assertion that `Because Bob 's disclaimer is, on
the current state of the record, ineffective, Bob is the presumptive remainderman. "'
(See Exhibit "A" attached hereto for the Executrices' detailed Response at Paragraph
#18).
14. Paragraph #19 of the aforesaid Requests for Admissions states: "In response to the
Motion to Compel Discovery filed by RMMII on 12-21-04, the Estate filed a Response
on 12-29-04 which admitted in Paragraph #4 that RMMII is a beneficiary under the
Estate and the two Trusts." (See Exhibit "A" attached hereto for the Executrices'
detailed Response at Paragraph # 19).
15. Paragraph #20 of the aforesaid Requests for Admissions states: "In response to the
Motion for Recusad of Judge due to Appearance of Impropriety filed by RMMII on 04-
27-05, the Estate filed a Response on OS-13-DS which admitted in Paragraph #2 that
RMMII is a beneficiary of the Estate." (See Exhibit "A" attached hereto for the
Executrices' detailed Response at Paragraph #20).
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16. Paragraph #25 of the aforesaid Requests for Admissions states: "Following the
issuance of the Superior Court's Memorandum Opinion filed January 3, 2001, the
Executrices did not obtain a cert~cation from the trial court under Pa. R. A. P. 342
as to `the status of individuals' in the context of Judge Hoffer's decision of February
23, 2000." ~~a (See Exhibit "A" attached hereto for the Executrices' detailed
Response at Paragraph #25).
17. Paragraph #26 of the aforesaid Requests for Admissions states: "The Orphans' Court
failed to decide, within 120 days or otherwise, the exceptions filed by the Executrices
on March 3, 2000." (See Exhibit "A" attached hereto for the Executrices' detailed
Response at Paragraph #26 which provides in pertinent part: "ADMITTED. Mrs.
Mumma and Mrs. Morgan are not aware of a ruling by the Court on their exceptions
filed by March 3, 2000. ").
' Pa.R.A.P. 342 is entitled: "Orphans' Court Orders Appealable. Orders Determining Realty, Personalty
and Status of Individuals or Entities. Orders Making Distribution." The Rule states in full:
An order of the Orphans' Court Division making a distribution, or determining an interest in
realty or personalty or the status of individuals or entities, shall be immediately appealable:
(1) upon a determination of finality by the Orphans' Court Division, or
(2) as otherwise provided by Chapter 3 of these rules.
2 With respect to said context of Judge Holler's Order and Opinion of February 23, 2000, same confirmed
that the Petitioner had validly revoked his disclaimer in 1989 and further confirmed that it was the
Petitioner, and not his minor children, who had an interest in the Estate. See, Pazagraphs #30 and #31 of
the instant Petition to Orphans' Court Division For the Entry of the Date of the Deemed Denial of
Exceptions Under Pennsylvania Orphans' Court Rule 7.1(f).
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I. MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION
PURSUANT TO Pa.R.C.P.1028(a)(1).
18. The Petitioner hereby incorporates all preceding paragraphs of his Preliminary
Objections as though fully set forth at length herein.
19. Although the Executrices' reiterate the mandatory provisions of Pa. O.C.R. 7.1(f)
their Response and New Matter further contain denials and explanations thereof
which indicates collateral matters, discretionary matters, and/or affirmative defenses
which are contrary to the express mandatory provisions of Pa. O.C.R. 7.1(f) which
requires the Clerk of the Orphans' Court to perform the purely ministerial function of
entering the date of July 3, 2000 on the docket as the date of the deemed denial of the
Respondent's exceptions filed on March 3, 2000.
20. The Executrices' Response and New Matter raises factual, procedural, and/or legal
issues and otherwise seeks to invoke the jurisdiction of the Orphans' Court to
entertain matters that are extraneous to the purely ministerial application of Pa.
O.C.R. 7.1(f) and, as such, is legally objectionable by way of preliminary objection
pursuant to Pa. R.C.P. 1028(a)(1) and (b).
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II. MOTION TO DISMISS FOR INCLUSION OF SCANDALOUS AND
IMPERTINENT MATTER IN A PLEADING PURSUANT TO Pa.R.C.P.
1028(a)(2).
21. The Petitioner hereby incorporates all preceding paragraphs of his Preliminary
Objections as though fully set forth at length herein.
22. The Executrices' Response and New Matter raises factual, procedural, and/or legal
matters that aze immaterial, inappropriate, unnecessary, and/or wholly irrelevant with
respect to the purely ministerial application of Pa. O.C.R. 7.1(fj and, as such, aze
legally objectionable as scandalous and impertinent by way of preliminary objection
pursuant to Pa. R.C.P. 1028(a)(2) and (b).
III. MOTION TO DISMISS FOR FAILURE OF A PLEADING TO CONFORM
TO RULE OF COURT PURSUANT TO Pa.R.C.P.1028(a)(2).
23. The Petitioner hereby incorporates all preceding paragraphs of his Preliminary
Objections as though fully set forth at length herein.
24. The Executrices' NEW MATTER raises the affirmative defenses of lathes and
equitable estoppels without specifically stating the material facts in a concise and
summary form and without an averment of facts extrinsic to the Petition to Orphans'
Court Division For the Entry of the Date of the Deemed Denial of Exceptions Under
Pennsylvania Orphans' Court Rule 7.1(f) in contravention of Pa. R.C.P. 1019(a).3
25. The Executrices' New Matter raises affirmative defenses without stating specific and
detailed averments of fact in a concise and summary form which would warrant the
application of the doctrines of lathes and equitable estoppel to the purely ministerial
application of Pa. O.C.R. 7.1(f) and, as such, are legally objectionable by way of
preliminary objection pursuant to Pa. R.C.P. 1028(a)(2) and (b).
' An affirmative defense requires an averment of facts extrinsic to the Petitioner's claim for relief. See,
Falcione v. Cornell Sch. Dist., 557 A.2d 425 (Pa. Super. 1989); Lewis v. S ip'tler, 403 A.2d 994 (Pa.
Super. 1979). See also, Allen v. Lipson. 18 Pa. D.&C. 4`~ 390 (C.P. 1990xaffirmative defenses raised
under Rule 1030 must be read in pari materia with Rule 1019(a); raising an affirmative defense under
Rule 1030 does not relieve the pleading party from complying with Rule 1019(a) which specifically
provides that the material facts on which a defense is based shall be stated in a concise and summary
form; averments in new matter must be as detailed and specific as the averments in a complaint -citing
Goodrich-Amram 2°d §1030:2.).
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IV. MOTION TO DISMISS FOR INSUFFICIENT SPECIFICITY IN A
PLEADING AS TO THE DOCTRINE OF CACHES PURSUANT TO Pa.R.C.P.
1028(a)(3).
26. The Petitioner hereby incorporates all preceding paragraphs of his Preliminary
Objections as though fully set forth at length herein.
27. The Executrices' New Matter avers that the doctrine of laches is a bar to the request
set forth in the Petition to Orphans' Court Division For the Entry of the Date of the
Deemed Denial of Exceptions Under Pennsylvania Orphans' Court Rule 7.1(f);
however, the New Matter insufficiently pleads any facts which would establish
laches, i.e., unreasonable delay arising from failure of the Petitioner to exercise due
diligence in instituting an action and resultant prejudice to the Respondents arising
therefrom.4
28. The Executrices' New Matter fails to plead sufficiently the nature or extent of the
following elements of laches:
(a) any failure of Petitioner to exercise due diligence in timely instituting an action;
a Caches bars relief when the complaining party's lack of due diligence in failing to timely institute an
action results in prejudice to another. Because it is an affirmative defense, the burden of proof is on the
Respondents to demonstrate unreasonable delay and prejudice. Thus, in order to prevail on an assertion of
laches, Respondents must establish: a) a delay arising from Petitioner's failure to exercise due diligence;
and, b) prejudice to the Respondents resulting from the delay. Prejudice in this context means that the
party must change his position to his detriment in order to invoke laches. See, Commonwealth ex rel.
Pennsylvania Attorney General Corbett v. Griffin 946 A.2d 668 (Pa. 2008); In re Estate of Scharlach.
809 A.2d 376 (Pa. Super. 2002). Caches will be applied only where the defending party has changed his
position in reliance upon the inaction of the complaining party. Gra v. GraX, 671 A.2d 1166 (Pa. Super.
1996).
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(b) any legal onus on the Petitioner to file any claim of any kind whatsoever
inasmuch as the express language of Pa. O.C.R. 7.1(f) directly provides that the
date of deemed denial arises by operation of law as of the 121 S` day and that the
Clerk is directed to enter the deemed denial on the docket as of such date;
(c) any prejudice to the Respondents as a result of a change in position to their
detriment occasioned by their reliance on any inaction of the Petitioner; and/or,
(d) any prejudice to the Respondents as to a change in position occasioned from the
filing of the instant Petition inasmuch as the WHEREFORE Clauses in the
Executrices' Response and New Matter reiterate their same position as originally
sought and as continually maintained throughout, to wit, for the Orphans' Court to
"rule on the exceptions filed by Respondents on March 3, 2000."
29. The Executrices' New Matter insufficiently pleads the affirmative defense of laches
to the purely ministerial application of Pa. O.C.R. 7.1(f) and, as such, said pleading is
legally objectionable by way of preliminary objection pursuant to Pa. R.C.P.
1028(a)(3) and (b).
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V. MOTION TO DISMISS FOR INSUFFICIENT SPECIFICITY IN A
PLEADING AS TO THE DOCTRINE OF EQUITABLE ESTOPPEL
PURSUANT TO Pa.RC.P.1028(a)(3).
30. The Petitioner hereby incorporates all preceding paragraphs of his Preliminary
Objections as though fully set forth at length herein.
31. The Executrices' New Matter avers that the doctrine of equitable estoppel is a bar to
the request set forth in the Petition to Orphans' Court Division For the Entry of the
Date of the Deemed Denial of Exceptions Under Pennsylvania Orphans' Court Rule
7.1(f); however, the New Matter insufficiently pleads any facts which would establish
equitable estoppel, i.e., any conduct of the Petitioner which induced any justifiable
reliance on that inducement to the detriment of the Respondents.5
5 Equitable estoppel is a doctrine by which a person may be precluded by his act or conduct, or silence
when it is his duty to speak, from asserting a right which he otherwise would have had. Its elements
include inducement and justifiable reliance on that inducement to one's detriment. Fidelity Federal Sav.
and Loan Assn v. Cap~oni, 684 A.2d 580 (Pa. Super. 1996}. Equitable estoppel acts to preclude one
from doing an act differently than the manner in which another was induced by word or deed to expect. It
may be applied where the party asserting estoppel establishs by clear, precise and unequivocal evidence
(1) that the party against whom the doctrine is sought to be asserted intentionally or negligently
misrepresented a material fact, knowing or with reason to know that the other party would justifiably rely
on the misrepresentation, (2) that the other party acted to his or her detriment by justifiably relying on the
misrepresentation, and (3) that there was no duty of inquiry on the party seeking to assert estoppel. Its
application will depend on the facts in each case. Stonehed~e Square Ltd. Partnership v. Movie
Merchants, Inc., 685 A.2d 1019 (Pa. Super. 1996). The doctrine of equitable estoppel provides that the
voluntary conduct of a party may preclude him from asserting rights against another who has justifiably
relied upon such conduct and changed his position so that he will suffer injury if the former is allowed to
repudiate the conduct. Starr v. O-I Brockway Glass, Inc. 637 A.2d 1371 (Pa. Super. 1994).
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32. The Executrices' New Matter fails to plead sufficiently the nature or extent of the
following elements of equitable estoppel:
(a) the requisite conduct of Petitioner upon which the Respondent's justifiably
relied;
(b) the right which Petitioner is allegedly precluded from asserting;
(c) the requisite justifiable reliance;
(d) the requisite inducement;
(e) the material facts which evidence any misrepresentation; and/or,
(f) any change in position of the Respondents occasioned from the filing of the
instant Petition inasmuch as the WHEREFORE Clauses in the Executrices'
Response and New Matter reiterate their same position as originally sought
and as continually maintained throughout, to wit, for the Orphans' Court to
"rule on the exceptions filed by Respondents on March 3, 2000."
33. The Executrices' New Matter insufficiently pleads the affirmative defense of
equitable estoppel to the purely ministerial application of Pa. O.C.R. 7.1(f) and, as
such, said pleading is legally objectionable by way of preliminary objection pursuant
to Pa. R.C.P. 1028(x)(3) and (b).
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VI. MOTION TO DISMISS FOR LEGAL INSUFFICIENCY OF A PLEADING
(DEMURRER) PURSUANT TO Pa.R.C.P.1028(a)(4).
34. The Petitioner hereby incorporates all preceding paragraphs of his Preliminary
Objections as though fully set forth at length herein.
35. Although the Executrices' Response and New Matter raises factual, procedural,
and/or legal issues which would seek to invoke the jurisdiction of the Orphans' Court
to entertain matters that are extraneous to the purely ministerial application of Pa.
O.C.R. 7.1(f), said pleading fails to assert with sufficient specificity any facts that
would support any other disposition other than that expressly set forth in said Rule, to
wit, that the date of deemed denial arises by operation of law as of the 121St day and
that the Clerk is directed to enter the deemed denial on the docket as of such date.
36. The Executrices' New Matter raises the affirmative defenses of equitable estoppel
and laches without asserting with sufficient specificity any facts that would support
the application of said doctrines as a baz to the purely ministerial application of Pa.
O.C.R. 7.1(f).
37. The Executrices' Response and New Matter fails to set forth an appropriate theory of
law upon which its affu~native defenses in opposition to the directed entry of the date
of the deemed denial on the docket must be granted, and, as such, is legally
objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(4) and
(b).
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VII. MOTION TO DISMISS FOR FAILURE TO EXERCISE OR EXHAUST A
STATUTORY REMEDY PURSUANT TO Pa.R.C.P.1028(a)(7).
38. 'The Petitioner hereby incorporates all preceding paragraphs of his Preliminary
Objections as though fully set forth at length herein.
39. While the Executrices' Response acknowledges in several pazagraphs the admitted
failure of the Orphans' Court to rule upon their exceptions filed on Mazch 3, 2000,6
they nevertheless plead that said failure has no impact upon "the ultimate question" of
the validity or effectiveness of the Petitioner's revocation of disclaimer. See,
Response Pazagraphs #47, #48, #51.
40. Although the Executrices' Response seeks again to restate an alleged issue respecting
the validity of the Petitioner's revocation of disclaimer, they are estopped from doing
so given (a) their failure to perfect an appeal to the Superior Court on or before
August 2, 2000 pursuant to Pa. O.C.R. 7.1(f) and Pa. R.A.P. 903, and (b) their failure
to seek a certification from the Orphans' Court that its Opinion and Order of February
23, 2000 constituted a determination of finality as to the status of the Petitioner has a
remainderman and beneficiary pursuant to Pa. R.A.P. 342.
41. The Executrices' Response and New Matter indicates that the Respondents failed to
previously pursue available remedies at law, and, as such, is legally objectionable by
way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(7) and (b).
6 See also, Paragraph #17 infra.
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WHEREFORE, Petitioner requests that the Orphans' Court direct the Clerk to enter the
date of July 3, 2000 on the docket as the date of the deemed denial of the exceptions filed by the
Executrices on March 3, 2000 by operation of law as expressly dictated by Pennsylvania
Orphans' Court Rule 7.1(f).
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DATE d
Respectfully submitted,
--~~i~~-
Robert M. Mumma, II
P.O. Box 58
Bowmansdale, PA 17008
(717) 612-9720
pro se
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F:\FILES\CGents\Mumma 58441 (estate) 8747 (Kim)\5844. LMnmma Es[ate\5844. LResp to RMM II RFA.DOC
George B. Faller, Jr., Esquire
I.D. No. 49813
MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER
MARTSON LAW OFFICES
10 East High Street
Carlisle, PA 17013
(717) 243-3341
Attorneys for Barbara McK. Mumma and Lisa M. Morgan
IN RE: IN THE COURT OF COMMON PLEAS OF
Estate of Robert M. Mumma, :CUMBERLAND COUNTY, PENNSYLVANIA
Deceased
NO. 21-86-398
ORPHAN'S COURT DIVISION
RESPONSES OF BARBARA MCK. MUMMA AND LISA M. MORGAN
TO ROBERT M. MUMMA II'S REQUESTS FOR ADMISSION
Barbara McK. Mumma and Lisa M. Morgan respond as follows to the First Set of
Requests for Admission served upon them by Robert M. Mumma, II.
1. The original contract for the purchase of the Snyder Farm was between the
Snyders and Robert M. Mumma, II.
RESPONSE:
Mrs. Mumma and Mrs. Morgan object to this request on the ground that it is
vague and ambiguous in its use of the terms "original contract" and "Snyder
Farm." In addition, the request seeks information that is neither relevant nor
reasonably calculated to lead to the discovery of admissible evidence. Moreover,
the request appears to seek information that is unrelated to any proper objection
asserted to the accounts filed with respect to the Estate of Robert M. Mumma,
Deceased and the Trusts established under his will. Without waiver of, and
subject to, their objections, Mrs. Mumma and Mrs. Morgan respond as follows:
Denied. After a reasonable investigation, Mrs. Mumma and Mrs. Morgan are
unable to respond to this request insofar as it refers to an unidentified "original
contract." It is their understanding based upon available information that what
they understand to be the Snyder Farm was purchased by Nine Ninety-Nine, Inc.
from John J. and Evelyn R. G. Snyder. The transfer was reflected in a deed dated
January 16, 1989.
EXHIBIT "A"
2. The original contract for the purchase of the Snyder Farm was among the
possessions of Robert M. Mumma, Deceased at the time of his death.
RESPONSE:
Mrs. Mumma and Mrs. Morgan object to this request on the ground that it is
vague and ambiguous in its use of the terms "original contract" and "Snyder
Farm." Without waiver of, and subject to, their objections, Mrs. Mumma and
Mrs. Morgan respond as follows:
Denied. After a reasonable investigation, Mrs. Mumma and Mrs. Morgan are
unable to state whether any "original contract" for the sale of what they
understand to be the Snyder Farm was a "possession" of Robert M. Mumma at
the time of his death. By way of further response, the Snyder Farm was not a
possession of Robert M. Mumma at the time of his death. See also response to
Request 1.
3. The plans of liquidation of Kim Company and Pennsylvania Supply Company
adopted by the directors of said companies called for the liquidation of Kim Company's assets to
be distributed to the shareholders pro rata.
RESPONSE:
Mrs. Mumma and Mrs. Morgan object to this request on the grounds that it seeks
information relating to matters which have been fully and finally adjudicated by
the courts of the Commonwealth of Pennsylvania. As a consequence, they seek
information that is neither relevant nor reasonably calculated to lead to the
discovery of admissible evidence. Mrs. Mumma and Mrs. Morgan further object
to this request on the grounds that it seeks characterization of the contents of a
document which is in writing and speaks for itself. Moreover, the request appears
to seek information that is unrelated to any proper objection asserted to the
accounts filed with respect to the Estate of Robert M. Mumma, Deceased and the
Trusts established under his will. Without waiver of and subject to their
objections, Mrs. Mumma and Mrs. Morgan respond to this request as follows:
Denied. Mrs. Mumma and Mrs. Morgan understand this request to refer to the
Plans of Dissolution and Complete Liquidation of Kim Company and
Pennsylvania Supply Company. Those plans do not state that the assets of the
respective corporations will be "distributed to the shareholders pro rata." Rather,
each of the plans states that "complete liquidation" will occur "[a]s soon as
practicable after the adoption of the Plan," and that "the appropriate officers of
the Company shall proceed to effect the liquidation of the Company on such
terms and conditions as such officers in their sole discretion consider to be
reasonable and in the best interests of the Company and its shareholders." The
plans also state that, as soon as practicable, the directors shall cause to be
distributed to the shareholders all of the assets of the Company remaining after
the payment of or provision for all remaining obligations or claims against the
Company, in complete cancellation and redemption of all of the outstanding
shares of the Company."
Moreover, following the unanimous consents of the shareholders and directors of
the corporations approving and adopting the Plans of Dissolution and Complete
Liquidation, the family members signed other documents governing the terms on
and manner in which the liquidations would occur. They signed two agreements
among tenants-in-common -commonly referred to as "MRA I" and "MRA II"
governing the assets of the liquidated corporations. They also executed a bill of
sale transferring real and personal property of Kim Company and Pennsylvania
Supply Company to themselves in respect of their respective shareholdings in the
two corporations. In addition, Mr. Mumma, II, in his capacity as Vice-President
of Kim Company and Pennsylvania Supply Company, also executed a master
deed transferring all real estate owned by Kim Company and Pennsylvania
Supply Company to their shareholders as tenants-in-common under the MRA I
and MRA II agreements, as well as deeds transferring various rights and interests
from Pennsylvania Supply to Hummelstown Quarries, Inc. See Barbara McK.
Mumma, et al. v. Robert M. Mumma, II, et al., No. 66 Equity 1988, Opinion and
Order, Findings of Fact 16, 31, 37, 40, 44, 45, 52, 53, 54 (C.P. Cumberland Mar.
24, 1992), post-trial motion denied and final decree entered, Opinion and Order
(C.P. Cumberland Nov. 5, 1992) (Sheely, P.J.), aff'd, 433 Pa. Super. 660, 639
A.2d 846 (1993), allocatur denied, 539 Pa. 679, 652 A.2d 1324 (1994); see also,
e.g., Robert M. Mumma, II v. G-A-T Distribution Corp., No. 423 Civil 1994,
Answer of Robert M. Mumma, II to Motion to Quash (C.P. Cumberland Apr. 30,
1997) ("Hummelstown Quarries, Inc. was formed out of Pennsylvania Supply
Company and the ownership interest in Pennsylvania Supply Company is what
determined the ownership interest in Hummelstown Quarries, Inc.); Robert M.
Mumma, II v. G-A-T Distribution Corp., No. 423 Civil 1994, Answer of Robert
M. Mumma, II to Motion for Protective Order (C.P. Cumberland May 5, 1997)
("[i]t is admitted that on December 19, 1986, [Mr. Mumma,] II, executed deeds as
Vice President of Pennsylvania Supply Company purporting to transfer various
rights and interests from Pennsylvania Supply Company to Hummelstown]
Q[uarries,] I[nc.] in furtherance of a liquidation of Pennsylvania Supply Company
and that these deeds would have constituted the source of all of the assets of
Hummelstown] Q[uarries,] I[nc.]"). The foregoing documents and instruments
governed the liquidations of Pennsylvania Supply Company and Kim Company
and the ownership of those assets following the liquidations.
4. After the liquidation of Kim Company, Pennsylvania Supply Company was to be
liquidated with the distribution of its assets to the shareholders pro rata.
RESPONSE:
Mrs. Mumma and Mrs. Morgan object to this request on the grounds that it seeks
information relating to matters which have been fully and finally adjudicated by
the courts of the Commonwealth of Pennsylvania. As a consequence, they seek
information that is neither relevant nor reasonably calculated to lead to the
discovery of admissible evidence. Moreover, the request appears to seek
information that is unrelated to any proper objection asserted to the accounts filed
with respect to the Estate of Robert M. Mumma, Deceased and the Trusts
established under his will. Without waiver of and subject to their objections, Mrs.
Mumma and Mrs. Morgan respond to this request as follows:
Admitted in part, denied in part. Mrs. Mumma and Mrs. Morgan admit that the
liquidation of Kim Company occurred prior to the liquidation of Pennsylvania
Supply Company, as Pennsylvania Supply Company was a shareholder of Kim
Company, and that certain assets were conveyed to their shareholders pro rata at
the time of the liquidations of Kim Company and Pennsylvania Supply Company.
The remainder of the request is denied to the extent that it seeks to characterize
the terms of the Plan of Dissolution and Complete Liquidation of Kim Company,
or that it seeks to characterize the terms or effect of the various documents
executed by the shareholders of Pennsylvania Supply Company and Kim
Company in December 1986. See also Response to Request 3.
5. The purpose and intent of said liquidation plans was to benefit only the
shareholders of either Kim Company or Pennsylvania Supply Company.
RESPONSE:
Mrs. Mumma and Mrs. Morgan object to this request on the grounds that it seeks
information relating to matters which have been fully and finally adjudicated by
the courts of the Commonwealth of Pennsylvania. As a consequence, they seek
information that is neither relevant nor reasonably calculated to lead to the
discovery of admissible evidence. Moreover, the request appears to seek
information that is unrelated to any proper objection asserted to the accounts filed
with respect to the Estate of Robert M. Mumma, Deceased and the Trusts
established under his will. Without waiver of and subject to their objections, Mrs.
Mumma and Mrs. Morgan respond to this request as follows:
Admitted in part, denied in part. Mrs. Mumma and Mrs. Morgan admit that they
believed the liquidations of Pennsylvania Supply Company and Kim Company
were in the best interests of the shareholders of those corporations, and they
understood that the other shareholders, in agreeing to the liquidations, held a
similar belief. The purpose of the liquidations was to avoid the effects of the
"1986 Tax Reform Act [which] overruled the General Utilities doctrine which
had previously permitted corporations to liquidate and pay only one tax on the
appreciation in the value of corporate assets rather than two taxes; one at the
corporate and the other at the shareholder level," thus economically benefitting all
the shareholders, including the Estate. Barbara McK. Mumma, et al. v. Robert M.
Mumma, II, et al., No. 66 Equity 1988, Opinion and Order, Finding of Fact 5
(C.P. Cumberland Mar. 24, 1992) (Sheely, P.J.), post-trial motion denied and
final decree entered, Opinion and Order (C.P. Cumberland Nov. 5, 1992), aff'd,
433 Pa. Super. 660, 639 A.2d 846 (1993), allocatur denied, 539 Pa. 679, 652
A.2d 1324 (1994). All other aspects of the request are denied.
6. Said liquidation plans were formulated and structured by Morgan, Lewis &
Bockius to avoid taxes on distributed assets in anticipation of upcoming changes to federal tax
laws.
RESPONSE:
Mrs. Mumma and Mrs. Morgan object to this request on the grounds that it seeks
information relating to matters which have been fully and finally adjudicated by
the courts of the Commonwealth of Pennsylvania. As a consequence, they seek
information that is neither relevant nor reasonably calculated to lead to the
discovery of admissible evidence. Moreover, the request appears to seek
information that is unrelated to any proper objection asserted to the accounts filed
with respect to the Estate of Robert M. Mumma, Deceased and the Trusts
established under his will. In addition, the request is vague and ambiguous in its
use of the terms "formulated" and "structured." Without waiver of and subject to
their objections, Mrs. Mumma and Mrs. Morgan respond to this request as
follows:
Admitted in part, denied in part. Mrs. Mumma and Mrs. Morgan admit that
personnel at Morgan, Lewis &Bockius brought to the attention of the family the
potential benefits associated with a liquidation of Pennsylvania Supply Company
and Kim Company, and thereafter prepared the Plans of Dissolution and
Complete Liquidation that were adopted and approved by the directors and
shareholders of Kim Company and Pennsylvania Supply Company. It is further
admitted a purpose of the liquidations was to avoid the effects of the "1986 Tax
Reform Act [which] overruled the General Utilities doctrine which had
previously permitted corporations to liquidate and pay only one tax on the
appreciation in the value of corporate assets rather than two taxes; one at the
corporate and the other at the shareholder level." Barbara McK. Mumma, et al. v.
Robert M. Mumma, II, et al., No. 66 Equity 1988, Opinion and Order, Finding of
Fact 5 (C.P. Cumberland Mar. 24, 1992), post-trial motion denied and final
decree entered, Opinion and Order (C.P. Cumberland Nov. 5, 1992), aff'd, 433
Pa. Super. 660, 639 A.2d 846 (1993), allocatur denied, 539 Pa. 679, 652 A.2d
1324 (1994). All other aspects of the request are denied.
7. Morgan, Lewis &Bockius filed articles of incorporation for Hummelstown
Quarries, Inc. in December 1986.
RESPONSE:
Mrs. Mumma and Mrs. Morgan object to this request on the grounds that it seeks
information relating to matters which have been fully and finally adjudicated by
the courts of the Commonwealth of Pennsylvania. As a consequence, they seek
information that is neither relevant nor reasonably calculated to lead to the
discovery of admissible evidence. Moreover, the request appears to seek
information that is unrelated to any proper objection asserted to the accounts filed
with respect to the Estate of Robert M. Mumma, Deceased and the Trusts
established under his will. Without waiver of and subject to their objections,
Mrs. Mumma and Mrs. Morgan respond to this request as follows:
Admitted. Mrs. Mumma and Mrs. Morgan admit that personnel of Morgan,
Lewis & Bockius or individuals acting at their direction filed articles of
incorporation for Hummelstown Quarries, Inc. A certificate of incorporation for
Hummelstown Quarries, Inc. was also filed with the Secretary of State on
December 19, 1986. Barbara McK. Mumma, et al. v. Robert M. Mumma, II, et
al., No. 66 Equity 1988, Opinion and Order, Finding of Fact 57 (C.P. Cumberland
Mar. 24, 1992), post-trial motion denied and final decree entered, Opinion and
Order (C.P. Cumberland Nov. 5, 1992), aff'd, 433 Pa. Super. 660, 639 A.2d 846
(1993), allocatur denied, 539 Pa. 679, 652 A.2d 1324 (1994).
8. There was no shareholders meeting held in the Harrisburg offices of Pennsy
Supply in December 1986 which led to the creation of Hummelstown Quarries, Inc.
RESPONSE:
Mrs. Mumma and Mrs. Morgan object to this request on the grounds that it seeks
information relating to matters which have been fully and finally adjudicated by
the courts of the Commonwealth of Pennsylvania. As a consequence, they seek
information that is neither relevant nor reasonably calculated to lead to the
discovery of admissible evidence. Moreover, the request appears to seek
information that is unrelated to any proper objection asserted to the accounts filed
with respect to the Estate of Robert M. Mumma, Deceased and the Trusts
established under his will. In addition, the request is vague and ambiguous with
respect to its use of the terms "shareholder meeting." Without waiver of and
subject to their objections, Mrs. Mumma and Mrs. Morgan respond to this request
as follows:
Denied. An organizational meeting of the board of directors of Hummelstown
Quarries, Inc. was held at the offices of Pennsy Supply, Inc. on December 19,
1986. Moreover, one of the purposes of the family meeting held on that same
date "was to take the necessary steps to create ... Hummelstown Quarries, Inc."
Barbara McK. Mumma, et al. v. Robert M. Mumma, II, et al., No. 66 Equity 1988,
Opinion and Order, Finding of Fact 31 (C.P. Cumberland Mar. 24, 1992), post-
trial motion denied and final decree entered, Opinion and Order (C.P.
Cumberland Nov. 5, 1992), aff'd, 433 Pa. Super. 660, 639 A.2d 846 (1993),
allocatur denied, 539 Pa. 679, 652 A.2d 1324 (1994). See also response to
Request 3.
9. Morgan, Lewis &Bockius created Hummelstown Quarries, Inc. to convey rights
to various quarries and mineral reserves to entities controlled by the Estate in violation of the
plan of liquidation adopted by Pennsylvania Supply Company.
RESPONSE:
Mrs. Mumma and Mrs. Morgan object to this request on the grounds that it seeks
information relating to matters which have been fully and finally adjudicated by
the courts of the Commonwealth of Pennsylvania. As a consequence, they seek
information that is neither relevant nor reasonably calculated to lead to the
discovery of admissible evidence. Moreover, the request appears to seek
information that is unrelated to any proper objection asserted to the accounts filed
with respect to the Estate of Robert M. Mumma, Deceased and the Trusts
established under his will. In addition, the request is vague and ambiguous with
respect to its use of the phrase "Morgan, Lewis &Bockius created." The request
also is compound and confusing. Without waiver of and subject to their
objections, Mrs. Mumma and Mrs. Morgan respond to this request as follows:
Admitted in part, denied in part. Mrs. Mumma and Mrs. Morgan admit that all
assets transferred to Hummelstown Quarries, Inc. were controlled by the Estate of
Robert M. Mumma by virtue of the Estate's ownership of more than 98% of the
stock of Pennsylvania Supply Company at the time of its liquidation. Thus, both
before and after the transfer of those assets from Pennsylvania Supply Company
to Hummelstown Quarries, Inc. they were owned by entities controlled by the
Estate of Robert M. Mumma, Deceased. All other aspects of this request are
denied. See also responses to Requests 3 and 8.
10. In a sworn affidavit dated April 13, 2004, William F. Martson, Esquire, of the
estate's counsel's firm, stated that he filed a document entitled "Disclaimer by Robert M.
Mumma, II" in the Cumberland County Office of the Register of Wills at the direction of Arthur
L. Klein, Esquire.
RESPONSE:
Mrs. Mumma and Mrs. Morgan object to this request on the grounds that it seeks
information that is neither relevant nor reasonably calculated to lead to the
discovery of admissible evidence. Moreover, the request appears to seek
information that is unrelated to any proper objection asserted to the accounts filed
with respect to the Estate of Robert M. Mumma, Deceased and the Trusts
established under his will. Without waiver of and subject to their objections, Mrs.
Mumma and Mrs. Morgan respond to this request as follows:
Admitted.
11. Attorney Martson received no instructions directly from Robert M. Mumma, II to
file a disclaimer with the court.
RESPONSE:
Mrs. Mumma and Mrs. Morgan object to this request on the grounds that it seeks
information that is neither relevant nor reasonably calculated to lead to the
discovery of admissible evidence. Moreover, the request appears to seek
information that is unrelated to any proper objection asserted to the accounts filed
with respect to the Estate of Robert M. Mumma, Deceased and the Trusts
established under his will. In addition, the request is vague and ambiguous with
respect to its use of the terms "a disclaimer." Without waiver of and subject to
their objections, Mrs. Mumma and Mrs. Morgan respond to this request as
follows:
Admitted in part; denied in part. It is admitted that Attorney Martson never
received verbal or written instructions directly from Robert M. Mumma, II,
himself, however Attorney Martson received instructions from Mr. Mumma, II's
attorney and authorized agent to file the disclaimer with the court.
Moreover, in early January, 1987, Mr. Mumma and Mr. Klein had a discussion
concerning Mr. Mumma disclaiming his interest under his father's will in favor of
his children.
Mr. Mumma authorized Mr. Klein to draft a disclaimer of his interest for his
review.
Mr. Mumma executed the qualified disclaimer of his interest on January 6, 1987,
and said disclaimer was filed with the Court of Common Pleas of Cumberland
County, Orphans' Court Division on January 12, 1987, in Book 115 at Page 20
with the knowledge and authorization of Mr. Mumma.
Barbara McK. Mumma, et al. v. Robert M. Mumma, II, et al., No. 66 Equity 1988,
Opinion and Order, Findings of Fact 15, 16, 18 (C.P. Cumberland Feb. 13, 1989)
(Sheely, P.J.), post-trial motion denied and final decree entered, Opinion and
Order (C.P. Cumberland Nov. 5, 1992), aff'd, 433 Pa. Super. 660, 639 A.2d 846
(1993), allocatur denied, 539 Pa. 679, 652 A.2d 1324 (1994) (citations omitted).
12. In a letter dated June 9, 2005, addressed to the Auditor, counsel for the
Executrices, No V. Otto, III, Esquire, indicated that the Executrices have stated from the time of
Robert M. Mumma, II's initial request to revoke his disclaimer that they do not take any position
on the merits of same request and that their position has been consistent.
RESPONSE:
Mrs. Mumma and Mrs. Morgan object to this request on the grounds that it seeks
information that is neither relevant nor reasonably calculated to lead to the
discovery of admissible evidence. Moreover, the request appears to seek
information that is unrelated to any proper objection asserted to the accounts filed
with respect to the Estate of Robert M. Mumma, Deceased and the Trusts
established under his will. The request also is vague and ambiguous with respect
to its use of the term "same request." Mrs. Mumma and Mrs. Morgan further
object to this request on the grounds that it seeks characterization of the contents
of a document which is in writing and speaks for itself. Without waiver of and
subject to their objections, Mrs. Mumma and Mrs. Morgan respond to this request
as follows:
Admitted. Mrs. Mumma and Mrs. Morgan do not take a position on the merits of
the disclaimer issue. However, as they have consistently stated, they do not
believe that the issue has been fully adjudicated by parties having standing to do
so, and that a ruling on the issue is essential to the exercise of their fiduciary
duties with respect to the identities of individuals to whom they must account and
who, ultimately, will be the remaindermen of the Trusts established under the will
of Mr. Mumma, Sr.
13. Since the time of Robert M. Mumma, II's initial request to revoke the disclaimer,
the Executrices have stated in multiple filings with the Court that they do not take any position
on the merits of Robert M. Mumma, II's request to revoke the disclaimer.
RESPONSE:
Mrs. Mumma and Mrs. Morgan object to this request on the grounds that it seeks
information that is neither relevant nor reasonably calculated to lead to the
discovery of admissible evidence. Moreover, the request appears to seek
information that is unrelated to any proper objection asserted to the accounts filed
with respect to the Estate of Robert M. Mumma, Deceased and the Trusts
established under his will. In addition, the request is vague and ambiguous with
respect to its use of the terms "multiple filings." Mrs. Mumma and Mrs. Morgan
further object to this request on the grounds that it seeks characterization of the
contents of various documents which are in writing and speak for themselves.
Without waiver of and subject to their objections, Mrs. Mumma and Mrs. Morgan
respond to this request as follows:
Admitted. Mrs. Mumma and Mrs. Morgan do not take a position on the merits of
the disclaimer issue. However, as they have consistently stated, they do not
believe that the issue has been fully adjudicated by parties having standing to do
so, and that a ruling on the issue is essential to the exercise of their fiduciary
duties with respect to the identities of individuals to whom they must account and
who, ultimately, will be the remaindermen of the Trusts established under the will
of Mr. Mumma, Sr.
14. Counsel for the Estate and the Executrices have not filed any motions, petitions,
or other court documents, nor otherwise commenced any litigation or proceedings, to challenge,
remove, strike, rescind or otherwise declare as invalid the revocation praeciped by Robert M.
Mumma, II with the Register of Wills office on January 16, 1990, and designated on the docket
as revoked on January 23, 1990, pursuant to the Order of Court dated November 17, 1989.
RESPONSE:
Mrs. Mumma and Mrs. Morgan object to this request on the grounds that it seeks
information that is neither relevant nor reasonably calculated to lead to the
discovery of admissible evidence. Moreover, the request appears to seek
information that is unrelated to any proper objection asserted to the accounts filed
with respect to the Estate of Robert M. Mumma, Deceased and the Trusts
established under his will. In addition, the request is vague and ambiguous with
respect to its use of the terms "other court documents," "proceedings"and
"challenge." Without waiver of and subject to their objections, Mrs. Mumma and
Mrs. Morgan respond to this request as follows:
Admitted in part, denied in part. Mrs. Mumma and Mrs. Morgan admit that they
have not filed documents seeking to have the revocation stricken or overturned, as
they lack standing to seek such relief. They have, however, raised in numerous
pleadings, motions, briefs, and letters to the Auditor their belief that the issue of
the validity of that revocation has not been litigated by persons having standing to
do so. See, e.g., the document referenced in Request 20 and Mrs. Mumma and
Mrs. Morgan's response to that request. All other aspects of the request are
denied.
15. Morgan, Lewis & Bockius was representing Robert M. Mumma, II in late 1986
and early 1987 when he was counseled by Arthur L. Klein, Esquire as to the disclaimer which
was filed by William F. Martson, Esquire at the Register of Wills office.
RESPONSE:
Mrs. Mumma and Mrs. Morgan object to this request on the grounds that it seeks
information relating to matters which have been fully and finally adjudicated by
the courts of the Commonwealth of Pennsylvania. As a consequence, it seeks
information that is neither relevant nor reasonably calculated to lead to the
discovery of admissible evidence. Moreover, the request appears to seek
information that is unrelated to any proper objection asserted to the accounts filed
with respect to the Estate of Robert M. Mumma, Deceased and the Trusts
established under his will. In addition, the request is vague and ambiguous with
respect to its use of the terms "counseled" and "as to the disclaimer." Without
waiver of and subject to their objections, Mrs. Mumma and Mrs. Morgan respond
to this request as follows:
Admitted in part; denied in part. Mrs. Mumma and Mrs. Morgan admit that Mr.
Klein was an attorney for Mr. Mumma, II on matters, during time periods and
under terms and conditions that have been the subject of discovery, testimony and
adjudications in the above-captioned action and other proceedings. See, e.g.,
Barbara McK. Mumma et al. v. Robert M. Mumma, II et al., No. 66 Equity 1988,
Opinion and Order, Finding of Fact 11 (C.P. Cumberland Feb. 13, 1989) ("Mr.
Mumma understood that Morgan, Lewis was only representing him concerning
his `estate planning and related matters"'), post-trial motion denied and final
decree entered, Opinion and Order (C.P. Cumberland Nov. 5, 1992) (Sheely,
P.J.), aff'd, 433 Pa. Super. 660, 639 A.2d 846 (1993), allocatur denied, 539 Pa.
679, 652 A.2d 1324 (1994). Mrs. Mumma and Mrs. Morgan also are aware that
these matters were in part among the matters that were the subject of an action
filed by Mr. Mumma, II against Morgan, Lewis & Bockius and Mr. Klein.
[CITE] All other aspects of the request are denied.
16. In her sworn deposition testimony taken on January 24, 2007, at page 164,
Barbara McK. Mumma, Executrix and Trustee, testified that Arthur Klein had discussions with
RMMII wherein she acknowledged that Arthur Klein had misled RMMII in general about the
Estate and the business.
RESPONSE:
Mrs. Mumma and Mrs. Morgan object to this request on the grounds that it seeks
information that is neither relevant nor reasonably calculated to lead to the
discovery of admissible evidence. Moreover, the request appears to seek
information that is unrelated to any proper objection asserted to the accounts filed
with respect to the Estate of Robert M. Mumma, Deceased and the Trusts
established under his will. In addition, the request is vague and ambiguous with
respect to its use of the terms "the business." Mrs. Mumma and Mrs. Morgan
further object to this request on the grounds that it seeks characterization of
testimony that has been transcribed and speaks for itself. Without waiver of and
subject to their objections, Mrs. Mumma and Mrs. Morgan respond to this request
as follows:
Admitted in part, denied in part. Mrs. Mumma and Mrs. Morgan admit that Mrs.
Mumma testified in her deposition on January 24, 2007 as follows:
Q And once your husband passed away, there must have been some discussions
with Morgan Lewis about what would happen to the company?
A I didn't get into that too much in the beginning. I know that Arthur Klein -
well, he died in the meantime, and I hadn't had too many discussions with him on it. I
think he had some discussions with Bobby on it and sort of misled Bobby.
Q How?
A I just said I think he misled him.
Q Misled him about what?
A Something to do with the estate and the business.
Q Are you referring to a specific conversation or a specific issue?
A No; just general.
Q Well, for example, in 1986, your son, Robert, was still the natural purchaser of
the business if there was going to be somebody to purchase it. Was that your feeling?
A Frankly, I didn't give any thought to it at the time.
Q Do you know whether anyone from Morgan Lewis talked to your son about
that?
A I don't know. I think maybe somebody did. I think maybe Art Klein did, but I
don't know for sure.
In re Estate of Robert M. Mumma, Deceased, No. 21-86-398, Deposition of
Barbara McK. Mumma at 163-64 (O.C. Cumberland Jan. 24, 2007).
Neither Mrs. Mumma nor Mrs. Morgan has any information suggesting that Mr.
Mumma, II was unaware of or uniformed regarding any material matter relating
to the Estate of Robert M. Mumma, Deceased, the Trusts established under his
will, or the family-owned businesses. All other aspects of the request are denied.
17. On July 23, 1993, the Executrices filed a Response to the Petition of Robert M.
Frey for Preliminary Injunction and Rule to Show Cause which admitted in Paragraph 10 thereof
that Robert M. Mumma, II's disclaimer was ineffective, and which further admitted that his
minor children were not beneficiaries under the Will.
RESPONSE:
Mrs. Mumma and Mrs. Morgan object to this request on the grounds that it seeks
information that is neither relevant nor reasonably calculated to lead to the
discovery of admissible evidence. Moreover, the request appears to seek
information that is unrelated to any proper objection asserted to the accounts filed
with respect to the Estate of Mr. Mumma, Sr. and the Trusts established under his
will. Mrs. Mumma and Mrs. Morgan further object to this request on the grounds
that it seeks characterization of the contents of a document which is in writing and
filed with the Court and speaks for itself. Without waiver of and subject to their
objections, Mrs. Mumma and Mrs. Morgan respond to this request as follows:
Admitted in part; denied in part. Mrs. Mumma and Mrs. Morgan admit that
paragraph 10 of their Response to the Petition of Robert M. Frey for Preliminary
Injunction and Rule to Show Cause stated in part that "Petitioner was not given
notice of the proposed sale because, on the current state of the record in this
action, [Mr. Mumma, II]'s disclaimer is ineffective and his minor children are
not, therefore, beneficiaries under the Will of Mr. Mumma, Sr." (emphasis
supplied). See also responses to Requests 12-14. Mrs. Mumma and Mrs. Morgan
do not believe, and therefore deny, that they have admitted that Mr. Mumma, II's
was ineffective or that they have taken a position as to whether, as an ultimate
matter, Mr. Mumma, II's children are beneficiaries under the will of Mr. Mumma,
Sr. They are awaiting a decision from the Court on this matter, so that they can
have certainty as to the parties to whom they are required to account, and as to the
identities of all individuals who properly are remaindermen of the Trusts
established under the will of Robert M. Mumma, Deceased.
18. Counsel for the Executrices filed a brief on July 26, 1993 with Judge Sheely which
acknowledged that the disclaimer had been validly revoked and that Robert M. Mumma, II's
interests under the Will were restored via its assertion that "Because Bob's disclaimer is, on the
current state of the record, ineffective, Bob is the presumptive remainderman."
RESPONSE:
Mrs. Mumma and Mrs. Morgan object to this request on the grounds that it seeks
information that is neither relevant nor reasonably calculated to lead to the
discovery of admissible evidence. Moreover, the request appears to seek
information that is unrelated to any proper objection asserted to the accounts filed
with respect to the Estate of Robert M. Mumma, Deceased and the Trusts
established under his will. Mrs. Mumma and Mrs. Morgan further object to this
request on the grounds that it seeks characterization of the contents of a document
this in writing and of record with the Court and speaks for itself. Without waiver
of and subject to their objections, Mrs. Mumma and Mrs. Morgan respond to this
request as follows:
Admitted in part, denied in part. Mrs. Mumma and Mrs. Morgan admit that they
filed a Memorandum of Law on July 26, 1993 that stated, inter alia, that "[a]t the
time of the entry of the Order appointing him guardian ad litem, [Mr. Mumma, II]
had disclaimed his interest under the Will in favor of his minor children.
Subsequently, however, [Mr. Mumma, II] sought to revoke the disclaimer, and
this Court upheld the revocation. By Order dated July 21, 1993, this Court denied
Petitioner's exceptions to that [sic] the Court's order upholding the revocation....
Because [Mr. Mumma, II]'s disclaimer is, on the current state of the record,
ineffective, [Mr. Mumma, II] is the presumptive remainderman. As such, he
represents the interests of his minor children under the doctrine of virtual
representation. Consequently, on the current state of the record [Mr. Mumma,
II]'s minor children have no standing to enjoin actions taken by Mrs. Mumma and
Mrs. Morgan." All other aspects of this request are denied.
19. In response to the Motion to Compel Discovery filed by RMMII on 12-21-04, the
Estate filed a Response on 12-29-04 which admitted in Paragraph #4 that RMMII is a
beneficiary under the Estate and the two Trusts.
RESPONSE:
Mrs. Mumma and Mrs. Morgan object to this request on the grounds that it seeks
information that is neither relevant nor reasonably calculated to lead to the
discovery of admissible evidence. Moreover, the request appears to seek
information that is unrelated to any proper objection asserted to the accounts filed
with respect to the Estate of Robert M. Mumma, Deceased and the Trusts
established under his will. Mrs. Mumma and Mrs. Morgan further object to this
request on the grounds that it seeks characterization of the contents of a document
that is in writing and of record with the Court and speaks for itself. Without
waiver of and subject to their objections, Mrs. Mumma and Mrs. Morgan respond
to this request as follows:
Admitted. Mrs. Mumma and Mrs. Morgan admit that the document so stated and
that, for the reasons set forth in their response to Request 18, that was the state of
the record as of the date in question.
20. In response to the Motion for Recusal of Judge due Appearance of Impropriety
filed by RMMII on 04-27-05, the Estate filed a Response on OS-13-OS which admitted in
Paragraph #2 that RMMII is a beneficiary of the Estate.
RESPONSE:
Mrs. Mumma and Mrs. Morgan object to this request on the grounds that it seeks
information that is neither relevant nor reasonably calculated to lead to the
discovery of admissible evidence. Moreover, the request appears to seek
information that is unrelated to any proper objection asserted to the accounts filed
with respect to the Estate of Robert M. Mumma, Deceased and the Trusts
established under his will. Mrs. Mumma and Mrs. Morgan further object to this
request on the grounds that it seeks characterization of the contents of a document
which is in writing and of record with the Court and speaks for itself. Without
waiver of and subject to their objections, Mrs. Mumma and Mrs. Morgan respond
to this request as follows:
Admitted in part; denied in part. Mrs. Mumma and Mrs. Morgan admit that their
response to paragraph 2 of the Motion in question read as follows: Admitted. By
way of further response, Mr. Mumma, II disclaimed his interest under Mr.
Mumma, Sr.'s will in January 1987. He later was permitted to revoke that
disclaimer. This revocation, however, has never been litigated by persons having
standing to do so on behalf of Mr. Mumma, II's minor children." All other
aspects of the request are denied.
21. In his letter dated May 24, 2005, the Auditor stated in part: "During the
prehearing conference Robert M. Mumma, II objected to even any discussion about the
disclaimer issue by the estate's counsel on the basis that such discussion was ethically barred
because one of the estate's counsel acted as his counsel when the disclaimer was made. Counsel
for the estate caucused and then indicated that 30 days would be needed to determine if current
counsel could respond on this issue or if new counsel would have to be engaged. It was agreed
at the end of the conference that the estate through current counsel or new counsel would express
its position with regard to the disclaimer in writing within 30 days."
RESPONSE:
Mrs. Mumma and Mrs. Morgan object to this request on the grounds that it seeks
information that is neither relevant nor reasonably calculated to lead to the
discovery of admissible evidence. Moreover, the request appears to seek
information that is unrelated to any proper objection asserted to the accounts filed
with respect to the Estate of Robert M. Mumma, Deceased and the Trusts
established under his will. Mrs. Mumma and Mrs. Morgan further object to this
request on the grounds to the extent that it seeks characterization of a document
that is in writing and speaks for itself. Without waiver of and subject to their
objections, Mrs. Mumma and Mrs. Morgan respond to this request as follows:
Admitted. Mrs. Mumma and Mrs. Morgan admit that this request accurately
quotes a portion of the Auditor's letter.
22. The letter dated June 9, 2005, by No V. Otto, III, Esquire constituted the written
position of the Estate with regard to the disclaimer as same was required by the auditor in his
letter dated May 24, 2005.
RESPONSE:
Mrs. Mumma and Mrs. Morgan object to this request on the grounds that it seeks
information that is neither relevant nor reasonably calculated to lead to the
discovery of admissible evidence. Moreover, the request appears to seek
information that is unrelated to any proper objection asserted to the accounts filed
with respect to the Estate of Robert M. Mumma, Deceased and the Trusts
established under his will. The request also is vague and ambiguous with respect
to its use of the term "written position." Without waiver of and subject to their
objections, Mrs. Mumma and Mrs. Morgan respond to this request as follows:
Admitted in part, denied in part. Mrs. Mumma and Mrs. Morgan admit that Mr.
Otto's letter was submitted in response to the request from the Auditor for a
statement of Mrs. Mumma and Mrs. Morgan's "position with regard to the
disclaimer." Any other aspects of the request are denied.
23. The majority of the text of the letter dated June 9, 2005, addressed to the Auditor
by No V. Otto, III, Esquire, was re-sent to the Auditor by George B. Faller, Jr., Esquire, in the
latter's letter dated November 7, 2007.
RESPONSE:
Mrs. Mumma and Mrs. Morgan object to this request on the grounds that it seeks
information that is neither relevant nor reasonably calculated to lead to the
discovery of admissible evidence. Moreover, the request appears to seek
information that is unrelated to any proper objection asserted to the accounts filed
with respect to the Estate of Robert M. Mumma, Deceased and the Trusts
established under his will. Mrs. Mumma and Mrs. Morgan further object to this
request to the extent that it seeks characterization of documents that are in writing
and speak for themselves. Without waiver of and subject to their objections, Mrs.
Mumma and Mrs. Morgan respond to this request as follows:
Admitted. Mrs. Mumma and Mrs. Morgan admit that Mr. Faller's
November 7, 2007, letter contained the same and/or similar content as Mr. Otto's
June 9, 2005 letter.
24. Neither the Executrices nor any other party or counsel ever responded timely in
writing as to the issue raised at said prehearing conference as to whether the estate counsel was
ethically barred from participation inasmuch as the estate counsel also acted as counsel to Robert
M. Mumma, II when the disclaimer was made.
RESPONSE:
Mrs. Mumma and Mrs. Morgan object to this request on the grounds that it seeks
information that is neither relevant nor reasonably calculated to lead to the
discovery of admissible evidence. Moreover, the request appears to seek
information that is unrelated to any proper objection asserted to the accounts filed
with respect to the Estate of Robert M. Mumma, Deceased and the Trusts
established under his will. In addition, the request is vague and ambiguous with
respect to its use of the terms "timely," "said prehearing conference" and
"participation." Without waiver of and subject to their objections, Mrs. Mumma
and Mrs. Morgan respond to this request as follows:
Denied.
25. Following the issuance of the Superior Court's Memorandum Opinion filed
January 3, 2001, the Executrices did not obtain a certification from the trial court under Pa.
R.A.P. 342 as to the `status of individuals' in the context of Judge Hoffer's decision of
February 23, 2000.
RESPONSE:
Mrs. Mumma and Mrs. Morgan object to this request on the grounds that it seeks
information that is neither relevant nor reasonably calculated to lead to the
discovery of admissible evidence. Moreover, the request appears to seek
information that is unrelated to any proper objection asserted to the accounts filed
with respect to the Estate of Robert M. Mumma, Deceased and the Trusts
established under his will. Mrs. Mumma and Mrs. Morgan further object to this
request to the extent that it seeks from them a characterization of matters that are
of record with the Court. Mrs. Mumma and Mrs. Morgan also object to this
request on the grounds that it its vague and ambiguous in its use of the phrase
"status of individuals." Without waiver of and subject to their objections, Mrs.
Mumma and Mrs. Morgan respond to this request as follows:
Admitted in part, denied in part. Mrs. Mumma and Mrs. Morgan admit that they
are not aware of the entry since January 3, 2001, of an order certifying issues
relating to the disclaimer of Mr. Mumma, II for appellate review pursuant to
Pa.R.A.P. 342. Mrs. Mumma and Mrs. Morgan have expressly requested such
relief from the Court. All other aspects of this request are denied.
26. The Orphans' Court failed to decide, within 120 days or otherwise, the exceptions
filed by the Executrices on March 3, 2000.
RESPONSE:
Mrs. Mumma and Mrs. Morgan object to this request on the grounds that it seeks
information that is neither relevant nor reasonably calculated to lead to the
discovery of admissible evidence. Moreover, the request appears to seek
information that is unrelated to any proper objection asserted to the accounts filed
with respect to the Estate of Robert M. Mumma, Deceased and the Trusts
established under his will. Mrs. Mumma and Mrs. Morgan further object to this
request to the extent that it seeks from them a statement as to matters that are of
record with the Court. Without waiver of and subject to their objections, Mrs.
Mumma and Mrs. Morgan respond to this request as follows:
Admitted. Mrs. Mumma and Mrs. Morgan are not aware of a ruling by the Court
on their exceptions filed by March 3, 2000.
27. The exceptions filed by the Executrices on March 3, 2000, are deemed denied by
operation of law pursuant to Pennsylvania Orphans' Court Rule 7.1 (f).
RESPONSE:
Mrs. Mumma and Mrs. Morgan object to this request on the grounds that it seeks
information that is neither relevant nor reasonably calculated to lead to the
discovery of admissible evidence. Moreover, the request appears to seek
information that is unrelated to any proper objection asserted to the accounts filed
with respect to the Estate of Robert M. Mumma, Deceased and the Trusts
established under his will. Without waiver of and subject to their objections, Mrs.
Mumma and Mrs. Morgan respond to this request as follows:
Denied. Mrs. Mumma and Mrs. Morgan do not believe that the exceptions are
deemed denied absent the entry of a deemed denial on the docket. The docket for
this matter does not reflect any such entry. Moreover, Mrs. Mumma and Mrs.
Morgan deny that any failure of the Court to rule upon the exceptions has any
impact upon the ultimate question of whether Mr. Mumma, II's revocation of his
disclaimer was valid or effective. See also responses to Requests 12-14. Mrs.
Mumma and Mrs. Morgan further deny that any failure by the Court to rule on the
exceptions reflects any ruling on the merits of the matters raised in the
exceptions.
28. When Joseph O'Connor appeared before Judge Oler at a hearing conducted on
April 18, 2005, Judge Oler recused himself due to an appearance of impropriety inasmuch as
Attorney O'Connor had prepared the last will and testament of Judge Oler's mother.
RESPONSE:
Mrs. Mumma and Mrs. Morgan object to this request on the grounds that it seeks
information that is neither relevant nor reasonably calculated to lead to the
discovery of admissible evidence. Moreover, the request appears to seek
information that is unrelated to any proper objection asserted to the accounts filed
with respect to the Estate of Robert M. Mumma, Deceased and the Trusts
established under his will. Mrs. Mumma and Mrs. Morgan further object to this
request to the extent it seeks characterization of events transpiring at a hearing,
the transcript of which is in writing, of record with the Court and speaks for itself.
Without waiver of and subject to their objections, Mrs. Mumma and Mrs. Morgan
respond to this request as follows:
Admitted in part; denied in part. Mrs. Mumma and Mrs. Morgan admit that
Judge Oler recused himself from further participation in Robert M. Mumma, II v.
Estate of Robert M. Mumma et al., No. 04-6183 (C.P. Cumberland), for reasons
stated on the record during the hearing in that matter on April 18, 2005, and
reflected in his Order entered that date. All other aspects of the request are
denied.
29. In the Memorandum Opinion of the Superior Court dated July 15, 1994, in
footnote #1, the Superior Court stated: "Robert II validly revoked his disclaimer; therefore, the
children, through the guardian ad litem, no longer have an interest in this dispute."
RESPONSE:
Mrs. Mumma and Mrs. Morgan object to this request on the grounds that it seeks
information that is neither relevant nor reasonably calculated to lead to the
discovery of admissible evidence. Moreover, the request appears to seek
information that is unrelated to any proper objection asserted to the accounts filed
with respect to the Estate of Robert M. Mumma, Deceased and the Trusts
established under his will. Mrs. Mumma and Mrs. Morgan further object to this
request to the extent that it seeks characterization of the contents of a document
that is in writing and of record with the Court and speaks for itself. Without
waiver of and subject to their objections, Mrs. Mumma and Mrs. Morgan respond
to this request as follows:
Admitted. Mrs. Mumma and Mrs. Morgan admit that footnote 1 to the opinion in
question states as quoted above. A subsequent opinion of the Superior Court
stated:
We note that there is some dispute over whether [Mr. Mumma, II] actually
possesses a legitimate property interest in decedent's Estate. As the trial court
noted, one threshold question is whether [Mr. Mumma, II] remains a beneficiary
in light of his January 6, 1987 filing of an irrevocable disclaimer of his interest
under the decedent's will.
In re Estate of Robert M. Mumma, No. 856 MDA 2005, Memorandum at 12 n.l
(Pa. Super. Mar. 7, 2006).
Respectfully Submitted,
No V. Otto, III
George B. Faller, Jr.
MARTSON DEARDORFF WILLIAMS OTTO
GILROY & FALLER
MARTSON LAW OFFICES
10 E. High Street
Carlisle, PA 17013
(717) 243-3341
Joseph A. O'Connor, Jr.
Brady L. Green
MORGAN, LEWIS & BOCKIUS LLP
1701 Market Street
Philadelphia, PA 19103-2921
(215) 963-5212, 5079
Date: June 2, 2008 Attorneys for Barbara McK. Mumma
Lisa M. Morgan
MAY-30-2008 11:14 FROM-AFFINIA GARDENS 2127587659 T-231 P.001/001 F-263
.-.~
VERII~ ICATiON
The foregoing Responses of Barbara McK. Mumma and Lisa M. Morgan to
Robert M. Mumma, IZ's Request for Admi.,9sions is based upon information which has
been gathered by my counsel in the preparation of the lawsuit. The language of the
document is that df counsel and not my awn. I have read the document and to the extent
that it is based upon information which I have given td my counsel, it is true and correct
to the best of niy knowledge, information and belief. To the extent that the content of the
document is that of counsel, I have relied upon counsel in making this verification.
This statement and verification are made subject to the penalties of l8 Pa. C,S,
Section X904 relating to unswarn falsification to authorities, which provides that if I
make knowingly false averments, I may be subject to criminal penalties.
~C/
Lisa M, Morgan, Indi ally, and as
1~xecutrix df the Estate of Robert M.
Mumma
CERTIFICATE OF SERVICE
I, Tricia D. Eckenroad an authorized agent of Martson Law Offices hereby certify that a copy of
the foregoing Responses of Barbara McK. Mumma and Lisa M. Morgan to Robert M. Mumma, II's
Request for Admissions was served this date by depositing same in the Post Office at Carlisle, PA, first
class mail, postage prepaid, addressed as follows:
Mr. Robert M. Mumma, II
Box 58
Bowmansdale, PA 17008
Mr. Robert M. Mumma, II
6880 S.E. Harbor Circle
Stuart, FL 34996-1968
Mr. Robert M. Mumma, II
840 Market Street, Suite 164
Lemoyne, PA 17043
Ralph A. Jacobs, Esquire
JACOBS & SINGER, LLC
1515 Market Street, Suite 705
Philadelphia, PA 19102
(Attorney for Barbara Mann Mumma)
Brady L. Green, Esquire
MORGAN, LEWIS & BOCKIUS LLP
1701 Market Street
Philadelphia, PA 19103-2921
(Attorney for Estate and Executrixes)
Ms. Linda Mumma Roth
P.O. Box 480
Mechanicsburg, PA 17055
Taylor P. Andrews, Esquire
ANDREWS & JOHNSON
78 West Pomfret Street
Carlisle, PA 17013
(Court-Appointed Auditor)
M~j,RTSON LAW O E
!~~
i is D. Eckenroad
10 East High Street
Carlisle, PA 17013
Date: June 2, 2008 (717) 243-3341
CERTIFICATE OF SERVICE
I, Robert M. Mumma, II hereby certify that a copy of the foregoing Preliminary
Objections was served this date by U.S. Mail, first class, postage prepaid, addressed to:
George B. Faller, Jr., Esquire
No V. Otto, III, Esquire
Martson Law Offices
10 East High Street
Carlisle, PA 17013
Brady Green, Esquire
Morgan, Lewis & Bockius, LLP
1701 Market Street
Philadelphia, PA 19103-2921
Ralph Jacobs, Esquire
1515 Market Street -Suite 705
Philadelphia, PA 19102
Linda Mumma Roth
PO Box 480
Mechanicsburg, PA 17055
Taylor Andrews, Esquire
Court-Appointed Auditor
78 West Pomfret Street
Carlisle, PA 17013
DATE: ~ ~~
BY: ~ ~~~ ~.
Robert M. Mumma, II ~
Box 58
Bowmansdale, PA 17008
717-612-9720
PROSE