HomeMy WebLinkAbout10-09-08Michael A. Finio, Esq. (38872)
Matthew M. Haar, Esq. (85688)
Saul Ewing LLP
2 N. Second Street, 7ta Floor
Harrisburg, PA 17101
717-238-7671 (Mr. Finio)
717-257-7508 (Mr. Haar)
Attorneys for Harry G. Lake, .Ir.
IN RE: ESTATE OF ROBERT M.
MUMMA, DECEASED
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IN THE COURT OF COMMON PLEAS`~F
CUMBERLAND COUNTY, PENNSYLVANIA
No. 21-86-398 Orphans' Court
MOTION BY HARRY G. LAKE, JR. TO QUASH THE SUBPOENA ISSUED BY
ROBERT M. MUMMA, II OR IN THE ALTERNATIVE FOR A PROTECTIVE ORDER
Harry G. "Bud" Lake, Jr. ("Lake"), by and through his undersigned counsel SAUL
EWlNG LLP, hereby moves the Court to quash the subpoena issued by Robert M. Mumma, II
("RMMII") or in the alternative to issue a protective order, and in support thereof avers as
follows:
1. On September 30, 2008, RMMII mailed a subpoena to Lake. A copy of the
subpoena is attached hereto as Exhibit A.
2. Lake did not receive the subpoena until October 6, 2008.
3. The subpoena calls for Lake's deposition on Monday, October 13, 2008, at 2:30
p.m. at RMMII's office at 840 Market Street, Suite 164, Lemoyne, PA.
4. The primary attorneys from Saul Ewing, Michael A. Finio and Matthew M. Haar,
who are handling the ongoing litigation between Pennsy Supply, Inc. and RMMII and his
entities, and who have handled specific issues related to RMMII's numerous attempts to attack
Lake, are both busy on October 13 and unable to accompany Lake to a deposition on that day.
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145568 1
5. The short notice given to Lake, a mere 5 business days, is insufficient for him and
his attorneys to prepare for a deposition.
6. Lake is not a party to the above-captioned estate proceeding.
7. Lake's deposition is apparently being sought in conjunction with a request from
RMMII to disqualify the law firm of Morgan Lewis in the estate proceeding based on work by
Morgan Lewis in the late 1980s.
Lake believes that he has no information or knowledge that would be remotely
relevant to the matter now before the Court.
9. Lake believes that RMMII has served the subpoena for improper purposes,
specifically to vex, annoy and harass him and Pennsy Supply, Inc. ("Pennsy").
10. This Court has already issued two orders cancelling attempts by RMMII in other
litigation to depose Lake. Copies of this Court's Orders of August 17, 2006, and January 2,
2007, are attached hereto as Exhibits B and C respectively.
11. The Court should, again, cancel the deposition, and enter a protective order
prohibiting any further effort by RMMII to seek discovery from Lake. See Pa R. Civ. P. 4012;
Stenger v. Lehigh Valley Hosp. Ctr., 382 Pa. Super. 75, 554 A.2d 954 (1989) (affirming issuance
of protective order); Simon v. Simon, 6 Pa. D. & C.3d 196, 206-207 (C.P. Philadelphia 1977)
(quashing subpoena and issuing protective order); Shor v. Redden, 33 Pa. D. & C.2d 179, 184
(C.P. Bucks 1964) (granting protective order and permitting questioning only by written
interrogatories only).
12. In addition to the scheduling issues identified above, the subpoena should be
quashed because:
145568.1 2
a. Lake is the corporate officer who signed certain corporate filings for the
Pennsy businesses in 1982, which filings have been the subject of extensive litigation by
RMMII. RMMII likely intends to question Lake regarding two corporate filings of January 4,
1982 that RMMII alleges either reflect or themselves actually carried out a theft of assets of a
Pennsy Supply Inc. (no comma) by Pennsy Supply, Inc. (comma). RMMII has unsuccessfully
litigated this issue for years, and all levels of the Pennsylvania Court system have determined
that Mumma's "two Pennsy theory" is "untenable" and "lacks merit." Over the past seven years,
no fewer than nine jud es have heard RMMII's convoluted saga about two Pennsy businesses
differentiated only by a comma, and Mumma has lost ever tom.
b. RMMII already deposed Lake on Mazch 20, 2000 in related litigation
about the issues identified in (a) above. RMMII's current subpoena to Lake seems to be nothing
more than a second bite at the apple.
RMMII pursued a lawsuit against Lake personally, but Lake prevailed in
the Dauphin County Court of Common Pleas, the Superior Court and the Supreme Court. See
Robert M. Mumma, II v. Harry G. Lake, Jr., CRH plc and Pennsy Supply, Inc., No. 2004-CV-
1540 (C. P. Dauphin); No. 598 MDA 2005 (Pa. Super. Ct.); No. 112 MAL 2006 (Pa.). Copies of
the relevant opinions and orders from the Dauphin County, Superior and Supreme Courts aze
attached hereto as Exhibits D, E & F respectively. RMMII's current attempt to depose Lake is
an inappropriate effort to retaliate against Lake based on losing eazlier litigation.
d. Lake is the father of the current President of Pennsy Supply, Randy Lake,
and the proposed deposition appears to be a personal attack by RMMII on both Bud Lake and
Randy Lake.
145568.1
13. The subpoena was served in bad faith, and is intended only to annoy, oppress,
harass, burden and inflict needless expense upon Lake and Pennsy. RMMII's attempt to depose
Lake for a second time, on an issue that has been conclusively determined against RMMII by no
fewer than nine jud es, related to a corporate filing made nearly twent -five 25) years ago must
be quashed.
14. The Rules prohibit discovery that is sought in bad faith or that "would cause
unreasonable annoyance, embarrassment, oppression, burden or expense to the deponent or to a
person or party." Pa. R. Civ. P. 4011.
15. The Court should impose sanctions against RMMII for his dilatory, obdurate and
vexatious conduct, in the form of having to pay Saul Ewing's counsel fees for having to pursue
this motion to quash Lake's deposition. New Castle Indus.. Inc. v. Behm, 40 Pa. D. & C.4th 544
(C.P. Lawrence 1998) (awarding attorney's fees as discovery sanctions).
16. Pursuant to LR 208.3(a)(2) Lake states that Judge Oler has previously ruled on
issues regarding RMMII's attempts to depose him. See Exhs. B & C.
17. Lake's counsel attempted in good faith to resolve these issues with RMMII and
his assistant James J. Gault, but such efforts were uMSUCCessful. Copies of emails exchanged
between Mr. Haar and Mr. Gault are attached hereto as Exhibit G.
WHEREFORE, Harry G. Lake, Jr. respectfully requests the following relief:
a) that the Court issue an Order staying the deposition of Lake pending resolution of
this Motion;
b) that the Court issue a Rule upon RMMII to show cause why the requested relief,
including the imposition of sanctions, should not be granted;
c) that the Court quash the subpoena directed to Mr. Lake;
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d) that the Court issue a Protective Order prohibiting any further discovery directed
to Mr. Lake and imposing sanctions on RMMII;
e) in the alternative, that the Court impose severe limitations on RMMII's deposition
of Mr. Lake including 1) that RMMII be prohibited from asking Mr. Lake any questions related
to any corporate filings involving Pennsy prior to 1993, 2) that RMMII be prohibited from
inquiring into any azeas that were covered in Mr. Lake's deposition on March 20, 2000, 3) that
the deposition proceed only upon written interrogatories, or 4) that the deposition occur at the
office of Mr. Lake's counsel; and
f) that the Court grant such further relief as it deems just and equitable.
Respectfully submitted,
SAUL EWING LLP
Dated: October 9, 2008
Michael A. Finio, Esq.'C38872)
Matthew M. Haar, Esq. (85688)
2 North Second Street, 7`h Floor
Harrisburg, PA 17101
(717) 257-7500
Attorneys for Harry G. Lake, Jr.
145568. I
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RO~ER~ M: MOMMA, `II
Box 58
Bowmansdale, PA 17008
(717) 612-9720
September 30, 2008
Hany G. Lake, Jr.
45 Mountain View Court
WeQsville, PA 17356
RE: Estate of Robert M. Mumma
No. 21-86-398
Orphans' Court -Cumberland County
Dear Mr. Lake:
Endosed please find a subpoena and a notice of deposition oonceming your
deposition which has been scheduled for October 13, 2008 at 2:30p.m. The enclosed
materials are being served upon you pursuant to the applicable rules of civil procedure.
Same have been served via restricted delivery mail and ordinary mail. With respell to
the latter, you are required to sign and return the acknowledgement in the enclosed,
self-addressed stamped envelope.
Thank you fior your attention m this matter.
Yours truly,
f
rt M. Mumma, II
PRO SE
RMM-tgt
ENC.
CC: Honorable J. Wesley Oler, Jr. (w/o enc.)
Joseph D. Buddey, Esquire -Auditor
Ralph Jacobs, Esquire
George B. Faller, Jr., Esquire
Brady Green, Esquire
Linda Mumma Rath
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
l~ R t; ~ E511~rE o F
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To:
' ~Rt:'H~tntSrGov2t' 9~vrSio~~
. Docket No ~ ~., t - $` " 3 ~~
1. You are ordered by the court to come bo
~ C ~'1Ar6c2t Str~.f - s,,;{t t 6 4 (~Efi~ c ~~ ~~r~. vd. dr9~.a.•~~1G'~
. (Specify eouracoom or o:!-a plane)
at ~„f o~{,~~ (,~1.n,b~,- iKn d County, Pear~sylvania, oa eci-c ~,r 13 7~'~
at ,x.:3 a o'clock, ~M, to testify on behalf of $ah~,-~t ~{- ,~a„»,,~ ~f ~
in the above case, and to remain until excused.
2. Andbring with you the following:
ff you fail to attend or to produce the documents or things requirod by this subpoena, you
tray be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of Civil -
Procedure, including but not limited to costs, attorney fees and itttprisonment.
Requested by:
Name: R,a~c-~ IVf - l~v~.titu,,
Address: o~ 5$
-- t3~;r~ens alz ~ P.4 i?yt:~
Telephone; 7I?- (,iZ-q~,~G
Suprtitne Court ID: ~ ro 5 t
BY THE COURT,
Date - X~.~ : .. ~ r
Register ofWills/Clerk of Orphans' Court ~' ~'I~
Note: This form of subpoena shall be used whenever a subpoena is issuable, including
hearings in connection with depositions and before arbitrators, masters, commissioners; etc.
in compliance with Pa R.C:P.No.234.1 _ If a subpoena for a production of documents, records
or things is desired, coruplete paragraph 2.
SUBPOENA TO ATTTND AND TESTIFY
]N TIC COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA.
ORPHANS' COURT DIVISION
IN RE: THE ESTATE OF
ROBERT M. IvI1;JMMA, DECEASED NO.21-86-398
ORPHANS' COURT
NOTICE OF DEPOSITION
TO: George B. Faller, Jr., Esquire
No V. Otto, III, Esquire
Manson Law Offices
10 East High Street
Carlisle, PA 17013
Brady Green, Esquire
Morgan, Lewis 8t Bockaus, LLP
1701 Marko Street
Philadelphia, PA 19103-2921
Ralph Jacobs, Esquire
1515 Market Street - Suitie 705
Philadelphia, PA 19102
Linda Mumma Roth
PO Box 480
Mechanicsburg, PA 17055
PL)E.A.SE TAKE NOTICE that the undersigned will take the deposition of Harry G.
Lake, Jr., on Monday, October 13, 2008 beginning at 2:30 p.na. The deposition will take place at
the offices of Robert M. Mumuoaa, II, 840 Market Street, Suite 164, Lemoyne, Pennsylvania,
17043, before a Court Reporter duly authorized by law to administer oaths. The deposition will
be taken pursuant to the Pennsylvania Orphans' Court Rules and Rules of Civil Procedure and
will continue from day to day until completcd.
In accordance with Rules 234.1 et seq. of the Pennsylvania Rules of Civil Procedure, and
Rule 3.6 of the Pennsylvania Orphans' Court Rules, and other applicable rules, the Deponent
shall bring with him to the deposition the following documents:
1.
Dated: September 30, 2008 ___ I
R bert M. Murnrna, II
Box 58
Bowmansdale, PA 17008
(717) 612-9720
PROSE
CERTIFICATE OF SERVICE
On this 30th day of September 2008, I, Robert M. Mwrvna, II, hereby certify that a copy
of the foregoing document was caused to be screed by U.S. Mail, first class, postagc prepaid,
addressed to:
George B. Faller, Jr., Esquire
No V. Otto, III, Esquire
10 East High Street
Carlisle, PA 17013
Brady Green, Esquire
1701 Market Street
Philadelphia, PA 19143-2921
Ralph Jacobs, Esquiree
151 S Market Street -Suite 705
Philadelphia, PA 19102
Linda Mumma Roth
PO Box 480
Mechanicsburg, PA 17055
Joseph D. Buckley, Esquire
1237 Holly Pike
Carlisle, PA 17013
Robert M. Mwr~nna, II _~ -
PRO SE
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLvANIA
ORPHANS' COURT DIVISION
IN RE: THE ESTATE OF
ROBERT M. l~I1J1vlMA, DECEASED
NOTICE
TO: Hanry G. Lake, Jr.
N0.21-86-398
ORPHANS' COURT
The enclosed subpoena is served pursuant to Pa. R C. P. 234.2(bx3). You must
complete the A.clrnowledgmentpart of this form. and return the copy of the completed form to the
sender in the enclosed self-addressed stamped eavelope.
Sign and date the Acknowledgmem. If you are served om behalf of a partnership,
unincorporated association, corporation or similar entity, indicate under your signature your
relationship to that entity. If you are served on behalf of another person ~d you are authorized
to receive the subpoena, indicate under your signature your authority.
DATE NOTICE MAILED: September 34, 2008 .~' ~
Robert Mumma, II
Box 58
Bowmansdale, PA 17008
(717)612-9720
PRO SE
ACKNOWLEDGIIIENT OF RECEIPT OF SUBPOENA
I acknowledge receipt of a copy of the subpoena in the above-captioned matter.
DATE:
Si®nanue
Relationship to entity or authority to
receive the subpoena (if applicable)
IN THE COURT OF COMMON PLEAS OF
CTJMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
1N RE: THE ESTATE OF
ROBERT M. IvI1;J1vA~lA, DECEASID N0.21-86-398
ORPHANS'COURT
NOTICE
TO: Ham G. LaketJr.
The enclosed subpoena is served pursuant to Pa. R C. P. 234.2(bx3). You must
complete the Aclanowled8oaent part of this form and return the copy of the completed form to the
sender in the enclosed selfaddressed stamped envelope.
Sign amd date the Aclouowled8ment. If you axe served on behalf of a partnership,
unincorpoirated associatioq corporation or similar enrity, indicate under your signature your
relationship to that entity, If you are served on behalf of another person and you are authorized
to receive the subpoenq indicate under your signature your authority.
DATE NOTICE MAILED: September 30, 2008 ~~~u-~~
R Bert Nl. Mumma, II
Box 58
Bowmansdale, PA 17008
(717)612-9720
PROSE
ACKNOWLEDGMENT OF RECEIPT OF SUBPOENA
I acknowledge receipt of a copy of the subpoena in the above-captioned matter.
DATE:
Signature
Relationship to entity or authority to
receive the subpoena (if applicable)
ROBERT M. MUMMA, II,
Plaintiff
VS
CRH, INC., PENNSY SUPPLY, INC.,
LFSA--MORGAN; BRRBARA McKIMMLE
MOMMA, LINDP_ MOMMA ROTH,- MORGAN
LE61iS & BROCKIUS and STRADLEY,
ROMAN, STEVENS & YOUNG,
Defendants
IN THE COURT OF COMMON PLEAS OF.
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-1596 CIVIL TERM
CIVIL ACTION - LAW
ORDER OF COIIRT
AND NOW, this 17th day of August, 2006, upon
consideration of Defendants CRH, Inc., and Pennsy Supply, Inc.'s
Motion To Quash Plaintiff's Subpoena to Harry G. Lake or in the
Alternative for a Protective Order, and following a hearing held on
this date at which the Plaintiff did not appear and at which
evidence was received on the merits of the motion, the motion is
granted to the extent that the deposition and any associated
subpoena directed to Harry G. Lake and/or Harry G. Lake, Jr., are
hereby canceled and vacated respectively.
Robert M. Mumma, iI
Box 58
Bowmansdale, PA 17008
Pro se Plaintiff
Matthew Haar, Esquire
Saul Ewing LLP
2 North Second Street, 7th Floor
Harrisburg, PA 17101-1609
For Defendants CRH, Inc, and Pennsy Supply, Inc.
Keith O. Brenneman, Esquire
99 West Main Street
Mechanicsburg, PA 17055
For Defendant for Morgan, Lewis & Sockius
Rv t_he Court,
,.,s
Thomas J. Williams, Esquire
No V. Otto, Esquire
Martson, Deardorff, Williams & Otto
Ten East High Street
Carlisle, PA 17013
For Defendants Lisa Morgan and Barbara McKimmie Mumma
Richard E. Connell, Esquire
Ball, Skelly, Murren & Connell
P.O. Box 1108
Harrisburg, PA 17108-1108
For Defendant Stradley, Ronan, Stevens & Young
Nicole L. Sorda, Esquire
Buchanan Ingersoll, P.C.
213 Market Street
P.O. Box 12023
Harrisburg, PA 17101-2141
For Defendant Linda Mumma Roth
:mlc
ROBERT M. MUMMA, II,
Plaintiff
v.
CRH, INC., PENNSY SUPPLY,
INC., LISA MORGAN,
BARBARA McKIMMIE
MUMMA, LINDA MUMMA
ROTH, MORGAN, LEWIS &
BOCKIUS, STRADLEY,
RONAN, STEVENS and
YOUNG,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION -LAW
NO. 99-1546 CIVIL TERM
ORDER OF COURT
AND NOW, this 2"d day of January, 2007, upon consideration of (a) Defendants
CRH, Inc., and Pennsy Supply, Inc.'s Motion To Quash Plaintiff's Notice of Deposition
of Harry G. Lake or in the Alternative for a Protective Order, (b) the Motion for Stay of
Discovery and for a Rule To Show Cause upon Plaintiff Concerning a Notice of
Deposition for Dean Schwartz and Request for Production of Documents, and (c) the
Motion for Stay of Discovery and for a Rule To Show Cause upon Plaintiff Concerning a
Notice of Deposition for Alan Gedrich and Request for Production of Documents, and
following a hearing held on December 29, 2006, it is ordered and directed as follows:
1. The motion regarding the deposition of Harry G. Lake, Jr.,
which was the subject of an earlier hearing and order, is granted and
the deposition is cancelled;
2. The motions regarding the depositions of Dean Schwartz and
Alan Gedrich are granted to the extent, but only to the extent, that:
a. The depositions shall be conducted at the offices
of the deponents within 60 days of the date of this order,
at a time convenient for all counsel and the deponents;
to the extent that such a time can not be agreed upon,
the depositions shall be held on Thursday, March 29,
2007, commencing at 10:30 a.m.
b. A private area shall be made available to Plaintiff
Robert M. Mumma, II, and his counsel for their use
during the course of the depositions, including recesses;
c. The deponents shall not be required to produce
any documents already provided to Plaintiff, or any
documents the production of which was previously
objected to without further pursuit at the time by
Plaintiff by way of a motion to compel discovery; and
d. Plaintiff shall bear the reasonable expense of
production of any document requested by Plaintiff to be
produced by a deponent, and the tender of such sum, as
demanded, shall be a prerequisite to the requirement for
production.
J
Eric J. Wiener, Esq.
2407 Park Drive
Harrisburg, PA 17110-9303
Attorney for Plaintiff
atthew M. Haar, Esq.
2 North Second Street
7ch Floor
Harrisburg, PA 17101
Attorney for Defendants
CRH, Inc., and Pennsy Supply, Inc.
BY THE COURT,
Richard E. Connell, Esq.
P.O. Box 1108
Harrisburg, PA 17108-1108
Attorneys for Stradley, Ronan,
Stevens & Young
Keith O. Brenneman, Esq.
44 West Main Street
Mechanicsburg, PA 17055
Attorney for Morgan, Lewis &
Bockius
Seth T. Mosebey, Esq.
Ten East High Street
Carlisle, PA 17013
Attorne}~s for Lisa Morgan and
Barbara McKimmie Mumma
Linda Mumma Roth
512 Creekview Lane
Mechanicsburg, PA 17055
Defendant, pro Se
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ROBERT M. l~I1JMMA, II,
Plaintiff,
HARRY G. LAKE, Jr., CRH pk., and
PENNSY SUPPLY, INC.,
Defendants
IN 'THE COURT OF COMMON PLEAS
DAUPIGNN COUNTY, PIIINSYLVANIA
N0.2004-CV-1540
CTVQ, ACTION LAW v
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JURY TRIAL DEMANDEDo=-°.-
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MEMO UM OPINION -<
AND ORDER
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This matter comes before the court on the Defendants' Preliminary Obj~~ to PlaintiB's
Amended Complaint. For the reasons set forth herein, Defendant's Preliminary Objections
OVERRULED IN PART AND SUSTAINED IN PART.
RELEVANT PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff, Robert M. Murwna Q (hereinafter, "Plaintiff's flied a Complaint in this matter on
May 14, 2004. in his initial Complaint, Plaintiff alleged that on January 4, l 982, individuals
Hany G. Lake Jr., and William D. BosvreU, {deceased), frauaukntly filed articles of amwdment
on behalf of Pennsy Supply, Inc., {coma) ic~~ its name to Nine Ninety-Nine, Inc. Plaintiff
bas asserted that duoring n deposition of Pennsy Supply's accountant on October 23, 2003, "it was
con6rmod that Hang Lake was never as officer or director of Pennsy Supply, ~. (Plaintiff's
Brief in Opposition to Preliminary Objections, p. 2). PiaintiH'allcgod that Lake did not have the
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ttai: doa~eat, rr~ w~7t odicale _
~y Ice. (no comm. iu Pbmoe's des~oahon o[Pea~y Stipply, inc. (ooosma) a
~6y t6e Q~ba~ p~0 ~t tbat is a legal q ~ ~ueeot das boea
((~mbariood Couo~r Goust of Common Pleas iu Roberi ~i Af~nn~q lL, r. P~1' ~Ph'. lar., No.
at ~o v. P ~y.1Nal- l7, 2a03k 7be S1~par~ Court a$'nmed ~ Caurt ~.~~ ~, decision
~ Allo~rana ~~ph-. ba~, ti33 A.2d I lS6 (Ps. Stirpcr. 2003) (decision wstbout pub>;shed ap~k PetiBon
Pied ~ion_ dearod at alwwha r. Poiry SsgPPJY• f~+~. t47 A.2d I2t7 (PA 2004j(docisioa tril~o~u
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authority to 6k the articles of anxadrncat. C`grticks") and tLat it was, therefore, invalid.
Plaintiff assutod that as a result of the aUegodly invalid filing, assets of Pcansy Supply lne. (no
coaoma) were illegally transfecr+od and ultimad~dy sold b Defendant CRH. (Plaintiffs Brief in
Opposition b Preliminary Objedioas, p.2). By way of cdiel; Plainti~'roquested in his Complaint
that the coact direct Defeodarits b 6k a state:ne:rt with the Department of State, Corporation
Buresu "eorrocbng the... invalid articles of ~ , or "diroct the cleric of Dauphin County
Coact of Common Pleas b exaarte such , ~8 ~ 1 S PaC.SA § 138. (Plaintiffs
Complaint, "Vf/HERF.FORE" clause).
On May 20, 2004, the Defadants, Harry G. Lake .1r., C1tH pk and Penosy SupPIY~ ~•,
(X~~aHer, "Defendants' filod PrcWninary pbjoc~ioos b Plaintii~'s Complaint.
Defendants a~sectod that Plaintrffs Complaint failed b state a cause of action, that the claim was
uotimdy in that it sought b "con+oct" an act<ck of aox~nent 61ad mom than twenty Y~ Pia
to this ac~ioq and that the doctrine of coUate:al estoppel pr~echdod Plaintiffs claim.
~f' pY Objections b Plaintiff s Complaint).
Following consideration of the parties' brief, on September 15, 2004, this court issued a
Memorandum °p'w°n and Order sustruning Defendants' PreWninary Objaxiroos in the Nature
of Demurrer. We ooncludod ~ IS Pa C.S.A. § 138, Statement of Correcting (hereinafter,
"Suction ! 38'~ provides for eorroctions of errors on the face of the record of corporate action,
not ss a means by which b substantively cha~tlwge the legality of a corporate action taken
er-ocordingly, we disimissod the Complaint upon Defendants' danurrcr. Because we determined
that Plaintiffs Complaint did not set forth a cause of adios, it was unnecessary to r~cach
Defendants' remaining preliminary objections.
2
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Folbwing issuance of onr Sepkmba 1 S, 2004 Order, Plaintiff 51od an Amendod Complaint
on October 4, 2004.On October 22, 2004, Defendants filed Preliminary Obj~;~ ~ p~~+s
Atneadod Complaint. Defendants asserted, inter ol~a, drat Ptaint~'s Amwdod Complaint, filed
witboUt leave of eou~t, should be stridcta. Plaintifffilod an Answer to Preliminary Objections
a~tting that it did not rooeive a copy of the Sepkanber 17, 2004. The
pleadings reflect that
dmring the pendency of a Ruk to Show~Causc Why Counsel INiIler Lipsitt LLC Sbould Not Be
Cnantod Percussion to Withdraw, the Plaintiff filed a pro sa Ansvhcr to Prdiminary Objections.
~~ ~a vas Pamissan to witLdraw on July 17, 2004. The Pl~emudGiff then 51od a pro
x Brief in Opposition to Defendant's Pr'Y Objections. The {,~ inadvertently served
tha September 15, 2004 Meaaorandum Opinion and Order ~ plaintiff at the addc+css listed on
~ pro x documents filed, wtKn in fact new counsel aiternd his appearance on August 5, 2004.
7x, on November 1 S, 2004, PlaioVff filed a Motion for Leave to Anocnd Nuac pro
Tiax. A Rule was iss»od upon Defendants to Show Cause Why the Plaintiff's Motion should not
be granted. The Defendant filed oo response, and the Plaintiff bled a Motion to Make Rule
Absolute and an Amended Motion to Make Rule Absohite Allowing heave to Amend Nwrc Pro
Tiwtc. On January 3, 2005, The Court granted Plaintiff's Motion to Make Ruk Absolute
Allowing Leave to Amci~d Nunc Pro Twrc.
.The parties 61od briefs rcgsrding the Preliminary Obja~ioas b Plaintiff's An~ded
Complaint, and the covert heard oral argument on March Z, 2005.
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~-. ~'k~JDANT'S MOTION TO STRIDE FOR F >T URE TO COMPI y W~ A RULE OF
~~
In view of the inadvertcut service of our September 1 S, 2004 Order upon Plaintiff rather than
his vouosel, and furthes, the grant of Plus Motion to Make Rrile A-6sotute, w+e ove~rruie
~' Prdmmmcy Objection in the Natw+e of a Motion b Strike for Failure to Co®ply
with Ruk of Court.
B' ~ S
ON 138 ~ NOT PROVIDE
ES TO THE LEGALTfY OF A CO RATE FQ„111(',
P1ain~'s claia4s, even as an~lifiod ®the Amended Complaint, fail to set forth a cause of
anion by which this count may require the filing of a Statdnent of Concoction under l S PaC.S.A_
§ 138, in that Section 138 dots not create a basis upon which this court may order cocroctions
which are tantamount ~ ~ P~ ~porate action.
7bc stadtte provides:
(a) Filig of a stateroat. -~/hcxrever any doe~t t~thocizod or to be 5iod
~ the Depart of State, by any p~ of this tick has~ban so 61od and is an
inaccurate r+ocord of the corporate a other action, therein referred to or was
defoc~rvdy or errooeousty exocutod, the document °~' be corroded by 51ing in the
depsrtimeat a statcmea-t of correction of the doaunart. The t of oorr+xtioq
except ~ p~~ in subsection (c) shall be executed by the r<s9ociation or other
person that effoGed the errooeoru filing and shall set forth:
(1) The naaoe of the association a other person and,, subject to section 109
(relating to name of oommeicial registp,ed office povides in lieu of registered
otlxr offiioe. location, rnchiding street and numuber, if any, of its register+od or
(7) The statute by or under which the c was incorpocatod, or the
Pro0Odk8 ~g was made, in the case of a Cling that dots not constitute a
part of the amides of iocosporation of a corporation
{3) The ioaocurscy or defect b be cornoctod.
---s 1
1 }
I
(4} The porti~ of the doc~aneat requiring aocrectiion in corra~t~od form a, if
the doaa~nt was crioooously exocurt~cd, a sit that the original docsmswt
shall be deemed regce~~utod or stridcea isom the records of the a as
the case maybe.
~) F.ffea ~~-
(l) The eor~+oc'ted documaK shall be docmod effecxive:
(7 ~ ~ ~ the , as to those persons who are substantially
and adv~etsdy affedod by the oomectioa - .
(ri} As of the dao6e the original doc~maa~i was effer~ve, as to all other
P~-
(2) A 51ing uaderthis sa~ion shall not have the effect of causing original
articles of urcorporadon a a type of doamseat crarting any other form
of sssoGStion to be stridcca from the rooords of the dcpartmeat bui the articles
or other document may be oorroctod under this sodion.
(c) p~a.t to ceart ceder.- If the as~ociatioa or otbcr person refuses to file
as appropriate ~of Qon+xtioa coder this section within tea business days afl~er
~Y P~ adversely affedod bas made a written deaoaod tha~eforr, the affected
Person may apply to the court for ro order to oompd the ~. If the court finds that
the document on 6le in the depardnent is inaccurate a defective, it may direct the
asaociatioa a other person who effodod the dcfoctiv~e or erroneous 61ing to 6k an
appoRiate stataoxat of oaredioa in the department, or it may order the clerk to
cao~e the s4~cat under the seal of the oast and cause ibe stateaoeaR to be 61ed
in the m the abseaoe of fraud, as application may not be made to a oast
uodpr this soc~ioo with raspoct to a doc~noeat mac than one year aftex the date on
whiclY it was originally filed is the dcparboxnt.
(d) Cron rdereaee.- Sec section 135 {relating to roquireaxats to be met by filed
docvaneats.
l S PaC.S.A. § l 38
1 S Pa.C.S.A. § l38(a).
We find no basis in Pennsylvania law for the type of action Plaintiff seeks. The gravamen
seelrs to address is sn alleged legal distinction bdw~oen Peansy Supply, Inc., (ooinnza)
and Pamsy Supply tnc., (no comma). Plaintiff assets that "[tic Articles of Amcndrneot
exooutod by Defendant Harry I,akc and fdod on January 4, 1982 that purport to change the namc
of Pena4y Supply, Inc. (comma) to Nine Ninety-Nine, Inc. was incoipaated on Novunbcr 5,
5
---~ ~ _ --
~~}
1958. (Arna~ded Complaint, para,l8). Plaintiff asserts that "Ind o oo~npany Irnown as Pcnnsy
Supply, Inc. (comma) was incocpocaZod on November 5,1958 " (Amended Complaint, Pace- 19)_
Ra~thcr, PassaRs, a company knovm as Peaasy~ SnPply Inc. (no comma) was incorporated
on November 5,1958. (Amended Complaint, para. Z0. Plaintiff alleges that in view of this
distiodioo, false information was included in the Articles of Ameadme~, and "the Departrne~t
of Stale «roneously betievod the doc~mueat to be evdence of a name change of Perrasy Supply
Inc- (no comma) to (120660) b Nwe Nmdy~Tine, Lac. (pmendod Complaint, perm 53). Plaintiff
asserts that in view of the alleged distinction, the Article of Aout~nCnt ~p~ false
information and was Erauiiukatly filed; (Amended Complaint, per, 18-42).
We find disingenuous PlaintitFs assertion that he does not challenge the validity of the
suhjoct Articlas. (Plaintiff's Brief is Opposition so Defendants' PAY 0b1~~ p• 'n•
Ahhoug6 oouchod in his Aoaendod Complaint as a roquest foe a "„, p~tigseeks
what amounts invalidation of the Amides of Acnendnxat.
Reading the staq~te as a while, we cannot envision that the kgislaaae intended Sextion 138 to
se:vc as the means by which to review the propriety of corporate action by way of a single
eocioction ao the face of ooe document or+derod by the count. We find it consistent with this
ceasing that subsocxion (2) of Soctioa 138 provides that a filing permittod under the statute will
not have the effext of having original artiicies or similar docwaents to be stricken, We do not
~~ that were the statute int~eaded to provide a mesas by which to challenge the underiyin8
sub6tantive validity of corporals Slings, the k would have; includod such provision
Further, two Pennsylvania courts have viewod the Sex~ion 138 as we do. In Warcfiiau v.
Wuv chimt, 77 7 AZd 469, (Pa. Super. C~ 2Q01 ~ re~v~ersed fit part a~Sn~-ed trt P,~t> gb4 A.2d 41
(PA 2004 the Superior Count rejoctod the claim that Suction 138 could be ursod to challenge the
6
-~ ~
I
,~ i
validity of a dowancat. In N'arclrinrt, the Plaiati~ Itil Watd»me, a majority sharcboldet in
a ~Y corrtr+ollod corporation, sought to chaUtage of actions of the chief exec~ive and trustoe
of voting trust, Defendant John War+ehime, In oppo~g the plsinti.ff s challaage to the voting
plan, Defendant aegnod that Plaintiff failod to timely challenge the voting Plan Pucsusnt to 15
Pa.C.S.A. § 138(c). The Covet rea9onod that the dcfesdaut's reliance upon Section 138 was
misplaood, in mat "... Suction 138(c) applies to oon+oc~ioag nood'mg to be made to submitted
docamoants, not challenges ro the valimty of a document itself'. Id, 777 A.2d 469, 482 (Pa.
Super. 2001 ~ On appeal, the Supame Covet of Pemsyivania held that the Superior Court
im~oPaly r~rci9od the trial ooutt's order denying prdimiaacy injunctive relied 'Ibe Supreme
Court did not address the Superior Court's determination that Suction ! 38 provides Daly for
boas to errors in docimxats, not to the validity of doamnrat~ t6emsdves. Aceordmgly, we
find Warelriaie v Warel,lfie 777 A.Zd 469 (Pa. Super 200!) instructive.
SimiLariy, in First Union Ncaiona! Bank v Q~llty Couriers, 48 Pa. D. 8r C.4° 1,
~'~~P~ may, 2000), a complex cage involving the invalidity of a nxrger, although
defendants 51ed a statcmeat of con+xtion to void ao imPr'oPer merger, the court noted that "thc
defendants meraselves aclcnowledgc that the filing of the statement of oorroction was a
`ministerial ad', and that cv~en if the defendants were to raise the argument that [a statcan~t of
eomoction voidod the merger], it would fail; a statement of oaroction is used t4 cotroct
ioac~curate rocords of a corporate action or defaxive or erronoously execirtod documents, ~ to
undo i corporate action that has alrtiady ban effectod." Id at 25-26.
She thrust of the numerous alleged inaccuracies of the filing is an alleged distinction between
Pennsy Supply, Inc. (wim comma) and Penasy Supply Inc. (oo comma). Bocause any alleged
7
j
~ r _ .
~ ~
,,
t
~
legal distiaxtion has born ad~t~ssod and rgectod,2 wee view P1~ffs Cooo~aint as a roquest to
rtwisit mat issoe by allowing whet amamts to a substantive cbange on the face of a corporate
~8 made n~iy twtmty years ago- Ba~od neon the plain language of the statute, and case law
g ~ PmP~> wee condude that Plaintiffhas failod tiostate a cause of action upon
wldcb relief maybe grantod.
~ S ~A~~..~A~ED BY TIC PERIOD OF ~1'i'ATION SET FnRTH IN
,STATUTE
Even if Plaintifr's claim for relief wrrc ooga~ble, it is barrod by the one year period of
limitations set forth in the statute.
Tbc statute provides that when a documcnt may be comoctod by the filing of a statenicat of
oon+octioq and die association a other paaon rcfusas to corroct the crr+onoous filing within tca
busies days following a written demand by a person adversely affoctod by the slang, the
-. _ aff°-ct'°d_.~soo ma~1y to die court for ~ order Lo compel the filing. 1 S Pa.C.SA §! 38(c).
However, "[ijn the ab®eoce of fraud, an application may not be made to the court undo this
suction with respoct b a doormat more than one year aRer the date on which it was originally
clod in the deportment." Jd.
In this cast, Plaintiff socks corroction of a filing in 1982, and fails zo allege fraud which
would have pceva4ted him fi+om socking relief within one year of the filing. While Plaintiff has
alkgod that the sling the information amotmts to fraud, vve sec no allegation of the type of laud
=See, /tobesr 6L 6liiawwq Il r. Ps~sr St~pt1-, Inc,, No 99-2765 (Q~mb. Co. Mty 17, 2003 I3e Haoorabk 1.
a-esbr Offer. h., ~e~1ed t`ore~is4 `...Pl~istiH'a c6dms arv pediuMod ao the kpl si<oi8caaoe o!s oa~mroa a bd~
linen[ .. 'i>te [.tat i [ a Ions line ofseemiodp ~ his ~4 other saesebes name
lria^asa laodbr and vaiioas eapo~atioos ~~„~ ~ ~~ f<ansaaioa: Lvohioa tie `P~arasy Sa~pplp
'] ivdves tie sale of `Flannery Snp~ply mss' b aooder ooepararioa, (atH Pte" P- 2~ t~oDos:iog a
tires daq ao~aey Iria1. Jaffe Okr fond that "Pleioli~lR4bert Myssnnj did awl rehiu ad osiaayiip ioAaast b s
~~°*'a S~plp 10~, a aory- daivsllv~e 16aeot; and Mt the ~ ofsltaces in Pa4ty
~- Iraoo~ at issue is tiffs swioa ~ra~e ant voided by o~ratioa of the siareioldes's
apeaneat exeasoed i4 1%t ~ p.12.
8
. .
~ )
i
~-i , .
w~ rad as c~o~mplatcd by that statue, that is, fraud which vrould toll the Homing of the period
of limitations. (Soe, Plaintiff s Amaeded Complaint, paragrspiu 1 & 42). We arc not p
by Plaintiff's argument that the one year period of limier applies only b actions that do not
ia~volve frraud, and roqu~res no showing of finned which induced him b relax his rigilanoe. Under
P4riatiff s eousfYUCtioq then would be m smdetoty period of limitations in cases in which the
Plaintiff alleges fYaudtelent filing. We vices the one year statute of limitatiacLS as a bar b
Plc~otiff's claim herein.
~(Z~ION
For aU of the foregoing reasons we have reviewod Plaintiffs Atncnded Complaint, o
~v
the following. ~ ~'' =~m
;tc~ ~ Zc~m
9o a orn<
Z = ~°~~
AND NO~V, this 9° da of -' 't° ~
Y Maech, 2005 it is hec+eby ORDERED that: --c _.. -<
r.
Defendants' Preliminary a~ are OYERRVI.ED IN PART AND
SUSTAINED IN PART:
Preliminary Objodion No. 1 • Motion b Strike for Failure b Comply with Rule of
Coact is OVF.RRUI.ED;
Preliminary Obja~ion No. 2-Legal Irtsui~ciency of a Pleading (Demurrer) Puasuant b
Pa. R Ccv.P. lt)28(ax4), Failure b State a Claim Under 1S Pa. C.SA § 138 and
Failure b Bring a Tnudy Action Under 1 S Pa.C.SA ~ 138 is S[ISTAITIED and
Platntiffs Atnendcd Complaint is DLSMLSSED WITH PREJ[JDICE.
The court therefore does not teach Defendants' Demurrer on then grounds of collateral
estoppel and Coordinate hecisdiction- Law of flee Case.
I~AR 152005
True a ~, ~ a
fils0, oti~
~.
Pr
BY COURT:
TODD A_ 1:i00VER, 7UDGE
9
__f 1
I
`~
..
~Oi2
1v1BdYel A. Fwiq Esq.
NO[t6 S0001d SirOet, / - ~OOt
Hamsl~g, PA 17101
Kbi~ S~ SoLooage, Esq.,
I~acyl E. , Esq.
P.O. Booc 480
Camp Hill, PA 17001
_ ~_. ,
!, ~
t
JUL 2 5 2~6
I h~: '~ ~:,:':~~ th:t the t~raooir~ is a
tiu+ ,~w crxr~,i copy 1ht ~~
fMN.
L.
10
...
. - J. A36020/OS
' }
~}
NON-PRECE~ENTIA~ DECISION -SEE SUPERIOR COURT I.O.P.65.37
R06ERT M. MUMMA, II,
v.
HARRY G. LAKE, JR., CRH and PENNSY
SUPPLY, INC.,
Appellees
IN THE SUPERIOR COURT OF
• PENNSYLVANIA
No. 598 MDA 2005
Appellant
Appeal from the Order entered on March 9, 2005
in the Court of Common Pleas of Dauphin County,
Civil Division, No. 2004-CV-1540
BEFORE: DEL SOLE, P.J., MUSMANNO and KELLY, JJ.
MEMORANDUM:
FILED: January 12, 2006
Robert . M. Mumma, II ("Mumma") appeals from the Order that
sustained Preliminary Objections filed by Harry G. Lake, Jr. ("Lake"), CRH
("CRH") and Pennsy Supply, Inc. (collectively "Appellees") and dismissed
Mumrna's Amended Complaint with prejudice. We affirm.
This appeal is part of a long line of convoluted litigation in which
Mumma has challenged various corporate transactions relating to a former
family business, which operated a construction and quarry company. The
business was founded by Mumma's grandfather and eventually, after various
corporate actions, operated under the name of Pennsy Supply, Inc. In 1982,
Lake and other corporate officers filed Articles of Amendment on behalf of
. - i
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° ~~ 3
. - J. A36020/OS
~t
Pennsy Supply, Inc.,l changing its name to Nine Ninety-Nine, Inc. In
addition to changing the company's name, ail outstanding shares of stock
were cancelled, and replacement shares in the new corporate name were
issued. Pennsy Supply, Inc. then became a wholly owned subsidiary of Nine
Ninety-Nine, Inc. in 1993, ail assets held in the name of Nine Ninety-Nine,
Inc. were sold to CRH for $34,000,000.00. Mumma initially opposed the
sale, but eventually joined it and received $3,000,000.00.
in 1999, Mumma brought a declaratory judgment action claiming that
he owned, through his alleged stockholding of a company named Pennsy
Supply Inc. (with no comma), the assets previously sold to CRH for
$34,000,000.00. The courts of this Commonwealth denied Mumma relief in
that action. See footnote 1, supra.
Subsequently, Mumma initiated the instant matter by filing a
Complaint on May 14, 2004 alleging that in 1982, ~.ake and other corporate
officers fraudulently filed the Articles of Amendment on behalf of Pennsy
Supply, Inc., which changed its name to Nine Ninety-Nine, Inc. Mumma
claimed that because lake lacked authority to file the Articles of
Amendment, the filing was invalid. Mumma's Complaint sought a ruling
directing Appellees to correct the invalid Articles of Amendment. Ultimately,
1 Mumma continues to assert that there is a legal distinction between Pennsy
Supply, Inc. (with a comma) and Pennsy Supply Inc. (without a comma).
However, in a previous appeal, this Court rejected that argument. See
Mui»n~a II v. Pennsy Sapp/y, Iu~ , g33 A.2d 1156 (Pa. Super. 2003)
(unpublished memorandum), appeal denied 847 A.2d 1287 (Pa. 2004).
-2-
• ~.
• 1. A36020/OS
i
1
Mumma filed an Amended Complaint and Appellees filed Preliminary
Objections. The trial court granted Appellees' Preliminary Objections in the
nature of a demurrer and dismissed the Amended Complaint. This timely
appeal followed.
Mumma argues that the trial court erred in sustaining Appellees'
Preliminary Objections and dismissing his claims. Essentially, Mumma
contends that the trial court erred in concluding that the statute of
limitations precludes the relief he seeks and in determining that Mumma's
Amended Complaint did not set forth a claim upon which relief may be
granted.
Our standard of review is well-settled:
Preliminary objections are properly granted when the pleadings
are legally insufficient for one or more of several reasons
enumerated in Rule of Civil Procedure [] 1028.... In general,
where upholding a grant of preliminary objections would result in
the dismissal of the action, we are called upon to do so only in
cases which are clear and free from doubt. Additionally, this
court observed:
Upon an appeal from a decision of the court below
sustaining preliminary objections in the nature of a
demurrer, we must accept as true every relevant
fact sufficiently averred in the plaintiffs' complaint
together with every inference favorable to the non-
moving party which is fairly [deducible] therefrom.
However, "the pleader's conclusions or averments of law are not
considered to be admitted as true by a demurrer."
Since the sustaining of a demurrer results in a denial
of a pleader's claim or a dismissal of his suit, a
preliminary objection in the nature of a demurrer
should be sustained only in cases that clearly and
-3-
A ~
• '
• J. A36020/OS
without a doubt fail to state a claim for which relief
may be granted. If the facts as pleaded state a
daim for which relief may be granted under any
theory of law, then there is suffident doubt to
require the preliminary objection in the nature of a
demurrer to be rejected.
Baker v. Cambridge Chase, Inc., 725 A.2d 757, 764 (Pa. Super. 1999)
(citations omitted).
We have reviewed the certified record in this matter, the briefs of the
parties, the relevant law, and the Opinion of the trial court dated March 9,
2005. It is our conclusion that the issues raised by Mumma lack merit and
that the Opinion of the trial court thoroughly and accurately disposes of
these issues. Accordingly, we adopt the trial court's Opinion as our own and
affirm on its basis.2 See Trial Court Opinion, 3/9/05, at 1-2, 4-9.
Order affirmed. Leave to withdraw granted.
TRUE COPY FROM RBCORD
Atl~et: JUl 2 52006
'~-~ c
9uparlor (hurt of PA -Middle Dl~hict
2 We rrote that Mumma's attorney, Kirk S. Sohonage, Esq., has requested
leave to withdraw as counsel. We grant leave to withdraw.
-4-
Date:
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
ROBERT M. MUMMA, 11,
Petitioner,
v.
HARRY G. LAKE, JR., CRH AND
PENNSY SUPPLY, 1NC.,
Respondents.
PER CURIAM
No. 112 MAL 2006
Petition for Allowance of Appeal from the
Order of the Superior Court
ORDER
AND NOW, this 25w day of July 2006, the Petition for Allowance of Appeal is
DENIED. Respondents' Motion for Counsel Fees is also DENIED. Petitioner's Motion to
Strike Respondent's Motion for Counsel Fees is DENIED as moot.
TRUE & CORRECT COPY
ATTEST JUL 2 5 2006
~J
--~1 NE M. BIZZOSO, CIUIRE
DEPUTY PROTHONOTARY
Page 1 of 1
Haar, Matthew M.
From: Haar, Matthew M.
Sent: Tuesday, October 07, 2008 4:52 PM
To: 'jggault@comcast.net;'rmmtwo@mac.com'
Subject: Subpoena to Harry G. "bud" Lake, Jr.
Mr. Gault and Mr. Mumma:
This firm represents Harry G. "Bud" Lake, Jr. Today I received Mr. Mumma's subpoena dated September 30,
2008, calling for Mr. Lake's deposition on October 13. Neither Mike Finio nor I am available that day to
accompany Mr. Lake to a deposition. Also I don't understand what Mr. Lake could possibly offer to what I
understand to be an effort by Mr. Mumma in his father's estate proceeding to disqualify Morgan Lewis.
Please contact me at your earliest convenience, especially in light of the very tight timeframe, to determine if
there is any amicable basis to proceed on the subpoena. Failing that we will be forced to file a motion for a
protective order.
Matthew M. Haar
Saul Ewing LLP
2 N. Second Street, 7th Floor
Harrisburg, PA 17101
717-257-7508 (ph)
717-257-7581 (fax)
mhaar .,,saul.com
www.saul.com
10/7/2008
Page 1 of 2
Haar, Matthew M.
From: jggault@comcast.net
Sent: Wednesday, October 08, 2008 4:12 PM
To: Haar, Matthew M.
Cc: rmmtwo@mac.com
Subject: Re: Subpoena to Harry G. "Bud" Lake, Jr.
Mr. Haar,
Your email below confirms that neither you nor Mr. Finio are available to accompany Mr. Lake.
Importantly, your email does not state that the deponent is unavailable.
Therefore, we shall look forward to seeing Mr. Lake on Monday, October 13, 2008 at 2:30pm. As your
email further confirms that your firm represents Mr. Lake, one or more of the many associates or
partners at the firm should be able to provide counsel to Mr. Lake.
Also, your failure to understand Mr. Lake's role in the disqualification motion concerning the Estate
counsel is immaterial. Under the rules of civil procedure, a party issuing a notice of deposition at this
juncture of the proceedings need not articulate beforehand any particulars as to the specific matters to be
addressed at the deposition. Mr. Mumma would not have noticed Mr. Lake's deposition unless his
testimony may prove to be material, relevant, and probative (and/or lead to additional discoverable
matters).
If you plan to file a motion for a protective order, please exercise all due professional courtesy and
advise me immediately. This will permit us to send the court reporter home if she/he is not needed.
thank you for your kind attention,
James G. Gault
-------------- Original message --------------
From: "Haar, Matthew M." <MHaar@saul.com>
Mr. Gault and Mr. Mumma:
This firm represents Harry G. "Bud" Lake, Jr. Today I received Mr. Mumma's subpoena dated
September 30, 2008, calling for Mr. Lake's deposition on October 13. Neither Mike Finio nor 1 am
available that day to accompany Mr. Lake to a deposition. Also I don't understand what Mr. Lake could
possibly offer to what I understand to be an effort by Mr. Mumma in his fathers estate proceeding to
disqualify Morgan Lewis.
Please contact me at your earliest convenience, especially in light of the very tight timeframe, to
determine if there is any amicable basis to proceed on the subpoena. Failing that we will be forced to file
a motion for a protective order.
Matthew M. Haar
Saul Ewing LLP
2 N. Second Street, 7th Floor
Harrisburg, PA 17101
717-257-7508(ph)
717-257-7581 (fax)
mhaar saul.com
10/8/2008
Page 2 of 2
www.saul.com
"Saul Ewing LLP <saul.com>" made the following annotations:
IRS CIRCULAR Z3O DISCLOSURE: TO ENSURE COMPLIANCE WITH REQUIREMENTS IMPOSED BY THE IRS, WE INFORM YOU
THAT ANY U.S. FEDERAL TAX ADVICE CONTAINED IN THIS COMMUNICATION INCLUDING ANY ATTACHMENTS IS NOT INTENDED
OR WRITTEN TO BE USED, AND CANNOT BE USED, FOR THE PURPOSE OF (I~ AVOIDING PENALTIES UNDER THE INTERNAL
REVENUE CODE OR ~II~ PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TRANSACTION OR MATTER
ADDRESSED HEREIN.
THIS E-MAIL MAY CONTAIN PRMLEGED, CONFIDENTIAL, COPYRIGHTED, OR OTHER LEGALLY PROTECTED INFORMATION. IF YOU
ARE NOT THE INTENDED RECIPIENT EVEN IF THE E-MAIL ADDRESS ABOVE IS YOURS, YOU MAY NOT USE, COPY, OR
RETRANSMIT IT. IF YOU HAVE RECENED THIS BY MISTAKE, PLEASE NOTIFY US BY RETURN E-MAIL, THEN DELETE. THANK YOU.
SAUL EWING'S WEB SITE IS 1NWW.SAUL.COM.
10/8/2008
Page 1 of 2
Haar, Matthew M.
From: Haar, Matthew M.
Sent: Wednesday, October 08, 2008 4:21 PM
To: 'jggault@comcast.net'
Cc: rmmtwo@mac.com
Subject: RE: Subpoena to Harry G. "Bud" Lake, Jr.
Mr. Gault - we will be filing a motion to quash the deposition and for a protective order. Neither Mr. Lake nor Mr.
Finio nor I will attend the deposition on Monday, so please feel free to cancel the court reporter so that you do not
incur any unnecessary charges.
Matthew M. Haar
Saul Ewing LLP
2 N. Second Street, 7th Floor
Harrisburg, PA 17101
717-257-7508 (ph)
717-257-7581 (fax)
mhaar@saui.com
www.saul.com
From: jggault@comcast.net [mailto:jggault@comcast.net]
Sent: Wednesday, October 08, 2008 4:12 PM
To: Haar, Matthew M.
Cc: rmmtwo@mac.com
Subject: Re: Subpoena to Harry G. "Bud" Lake, Jr.
Mr. Haar,
Your email below confirms that neither you nor Mr. Finio aze available to accompany Mr. Lake.
Importantly, your email does not state that the deponent is unavailable.
Therefore, we shall look forwazd to seeing Mr. Lake on Monday, October 13, 2008 at 2:30pm. As your
email further confirms that your firm represents Mr. Lake, one or more of the many associates or
partners at the firm should be able to provide counsel to Mr. Lake.
Also, your failure to understand Mr. Lake's role in the disqualification motion concerning the Estate
counsel is immaterial. Under the rules of civil procedure, a party issuing a notice of deposition at this
juncture of the proceedings need not azticulate beforehand any particulars as to the specific matters to be
addressed at the deposition. Mr. Mumma would not have noticed Mr. Lake's deposition unless his
testimony may prove to be material, relevant, and probative (and/or lead to additional discoverable
matters).
If you plan to file a motion for a protective order, please exercise all due professional courtesy and
advise me immediately. This will permit us to send the court reporter home if sheltie is not needed.
thank you for your kind attention,
James G. Gault
10/8/2008
Page 2 of 2
-------------- Original message --------------
From: "Haar, Matthew M." <MHaar@saul.com>
Mr. Gault and Mr. Mumma:
This firm represents Harry G. "Bud" Lake, Jr. Today 1 received Mr. Mumma's subpoena dated
September 30, 2008, calling for Mr. Lake's deposition on October 13. Neither Mike Finio nor I am
available that day to accompany Mr. Lake to a deposition. Also 1 don't understand what Mr. Lake could
possibly offer to what I understand to be an effort by Mr. Mumma in his father's estate proceeding to
disqualify Morgan Lewis.
Please contact me at your earliest convenience, especially in light of the very tight timeframe, to
determine if there is any amicable basis to proceed on the subpoena. Failing that we will be forced to file
a motion for a protective order.
Matthew M. Haar
Saul Ewing LLP
2 N. Second Street, 7th Floor
Harrisburg, PA 17101
717-257-7508 (ph)
717-257-7581 (fax)
mhaart~saul.com
www.saul.com
"Saul Ewing LLP <saul.com>" made the following annotations:
IRS CIRCULAR 23O DISCLOSURE: TO ENSURE COMPLIANCE WITH REQUIREMENTS IMPOSED BY THE IRS, WE INFORM YOU
THAT ANY U.S. FEDERAL TAX ADVICE CONTAINED IN THIS COMMUNICATION (INCLUDING ANY ATTACHMENTS) IS NOT INTENDED
OR WRrrTEN TO BE USED, AND CANNOT BE USED, FOR THE PURPOSE OF (I) AVOIDING PENALTIES UNDER THE INTERNAL
REVENUE CODE OR ~II) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TRANSACTION OR MATTER
ADDRESSED HEREIN.
THIS E-MAIL MAY CONTAIN PRNILEGED, CONFIDENTIAL, COPYRIGHTED, OR OTHER LEGALLY PROTECTED INFORMATION. IF YOU
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SAUL EWING'S WEB SITE IS WWW.SAUL.COM.
l 0/8/2008
Page 1 of 2
Haar, Matthew M.
From: jggault@comcast.net
Sent: Wednesday, October 08, 2008 4:31 PM
To: Haar, Matthew M.
Subject: RE: Subpoena to Harry G. "Bud" Lake, Jr.
thank you for the prompt reply
-------------- Original message --------------
From: "Haar, Matthew M." <MHaar@saul.com>
Mr. Gault - we will be filing a motion to quash the deposition and for a protective order. Neither Mr. Lake
nor Mr. Finio nor I will attend the deposition on Monday, so please feel free to cancel the court reporter
so that you do not incur any unnecessary charges.
Matthew M. Haar
Saul Ewing LLP
2 N. Second Street, 7th Floor
Harrisburg, PA 17101
717-257-7508(ph)
717-257-7581 (fax)
mhaar@saul.com
www.saul.com
From: jggault@comcast.net [mailto:jggault@comcast.net]
Sent: Wednesday, October 08, 2008 4:12 PM
To: Haar, Matthew M.
Cc: rmmtwo@mac.mm
Subject: Re: Subpoena to Harry G. "Bud" Lake, Jr.
Mr. Haar,
Your email below confirms that neither you nor Mr. Finio are available to accompany Mr.
Lake. Importantly, your email does not state that the deponent is unavailable.
Therefore, we shall look forward to seeing Mr. Lake on Monday, October 13, 2008 at 2:30pm.
As your email further confirms that your firm represents Mr. Lake, one or more of the many
associates or partners at the firm should be able to provide counsel to Mr. Lake.
Also, your failure to understand Mr. Lake's role in the disqualification motion concerning the
Estate counsel is immaterial. Under the rules of civil procedure, a party issuing a notice of
deposition at this juncture of the proceedings need not articulate beforehand any particulars as to
the specific matters to be addressed at the deposition. Mr. Mumma would not have noticed Mr.
Lake's deposition unless his testimony may prove to be material, relevant, and probative (and/or
lead to additional discoverable matters).
If you plan to file a motion for a protective order, please exercise all due professional courtesy
and advise me immediately. This will permit us to send the court reporter home if she/he is not
needed.
10/8/2008
Page 2 of 2
thank you for your kind attention,
James G. Gault
-------------- Original message --------------
From: "Haar, Matthew M." <MHaar@saui.com>
Mr. Gault and Mr. Mumma:
This firm represents Harry G. "Bud" Lake, Jr. Today I received Mr. Mumma's subpoena dated
September 30, 2008, calling for Mr. Lake's deposition on October 13. Neither Mike Finio nor
am available that day to accompany Mr. Lake to a deposition. Also I don't understand what Mr.
Lake could possibly offer to what I understand to be an effort by Mr. Mumma in his father's
estate proceeding to disqualify Morgan Lewis.
Please contact me at your earliest convenience, especially in light of the very tight timeframe,
to determine if there is any amicable basis to proceed on the subpoena. Failing that we will be
forced to file a motion for a protective order.
Matthew M. Haar
Saul Ewing LLP
2 N. Second Street, 7th Floor
Harrisburg, PA 17101
717-257-7508 (ph)
717-257-7581 (fax)
mhaar .saul.com
www.saul.com
"Saul Ewing LLP <saul.com>" made the following annotations:
IRS CIRCULAR 23O DISCLOSURE: TO ENSURE CoMPLUUVCE WITH REQUIREMENTS IMPOSED BY THE IRS, WE
INFORM YOU THAT ANY U.S. FEDERAL TAX ADVICE CONTAINED IN THIS COMMUNICATION INCLUDING ANY
ATTACHMENTS) IS NOT INTENDED OR WRITTEN TO BE USED, AND CANNOT BE USED, FOR THE PURPOSE OF ~I)
AVOIDING PENALTIES UNDER THE INTERNAL REVENUE CODE OR (II) PROMOTING, MARKETING OR RECOMMENDING TO
ANOTHER PARTY ANY TRANSACTION OR MATTER ADDRESSED HEREIN.
THIS E-MAIL MAY CONTAIN PRMLEGED, CONFIDENTIAL, COPYRIGHTED, OR OTHER LEGALLY PROTECTED
INFORMATION. IF YOU ARE NOT THE INTENDED RECIPIENT EVEN IF THE E-MAIL ADDRESS ABOVE IS YOURS, YOU
MAY NOT USE, COPY, OR RETRANSMIT rr. IF YOU HAVE RECEIVED THIS BY MISTAKE, PLEASE NOTIFY US BY RETURN
E-MAIL, THEN DELETE. THANK YOU. SdUI EWING'S WEB SITE IS WWW.SAUL.COM.
10/8/2008
CERTIFICATE OF SERVICE
I hereby certify that on October 9, 2006, I served a true and correct copy of the
foregoing Motion by first-class mail, postage prepaid, addressed as follows:
Robert M. Mumma, II
Box 58
Bowmansdale, PA i 7008
Robert M. Mumma, II
840 Market Street, Suite 164
Lemoyne, PA 17043
George B. Faller, Jr., Esq.
No V. Otto, III, Esq.
Martson Law Offices
10 East High Street
Carlisle, PA 17013
Brady Green, Esq.
Morgan, Lewis & Bockius, LLP
1701 Market Street
Philadelphia, PA 19103-2921
Ralph Jacobs, Esq.
1515 Market Street -Suite 705
Philadelphia, PA 19102
Linda Mumma Roth
P.O. Box 480
Mechanicsburg, PA 17055
Joseph D. Buckley, Esq.
1237 Holly Pike
Carlisle, PA 17013
James G. Gault, Esq.
503 Magaro Road
Enola, PA 17025
Matthew .Haar
145568 I