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HomeMy WebLinkAbout08-7187 W Thomas W. Scott, Esquire PA I.D. 15681 Linda J. Olsen, Esquire PA I. D. 92858 Killian & Gephart, LLP 218 Pine Street P. O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 lolsena,,killiansenhart. com tscottna,killianeephart.com Robert M. Mumma, II Grantor Retained : IN THE COURT OF COMMON PLEAS Annuity Trust; Robert M. Mumma, II : CUMBERLAND COUNTY PENNSYLVANIA and Susan Mumma, Plaintiffs No. 7 c jv ? 1 cfM, V. Benedict B. Randolph V. Pennsy Supply, Inc., Defendant V. Danny L. Turner, , Additional Defendant PRAECIPE FOR LIS PENDENS TO THE PROTHONOTARY: Please index the below-described action for specific performance of a contract for the sale of real property as a lis pendens against the following real property, which property is more particularly described at Cumberland County Deed Book 280, Page 4684, a copy of which is attached hereto as Exhibit "A," and whic is known and numbered as: 1607 Industrial Drive Coilisle, Cumberland County, Pennsylvania An action is pending in the United States District Court for the Middle District of Pennsylvania, and is docketed as Civil Action No. 98-CV-0087 titled Motion for an Order Pursuant to Rule 7(b) to Join an Additional Respondent, to Enforce a Settlement Agreement and Stipulation of Dismissal, for Contempt, and to Impose Sanctions. A copy of the Motion is attached hereto as Exhibit "B." Mumma sought to join Danny L. Turner as an Additional Respondent in the foregoing pending action, and on April 3, 2008, The Honorable Sylvia H. Rambo issued an Order joining Danny L. Turner to the pending action. A copy of said Order is attached hereto as Exhibit "C." Following recusal of Judge Rambo and reassignment to The Honorable John E. Jones III, a hearing was held on November 13, 2008. On November 19, 2008, Judge Jones issued a Memorandum and Order granting possession of the 1607 Industrial Road property to Turner and dismissing Turner from the case. A copy of the Memorandum and Order is attached hereto as Exhibit "D." Judge Jones' November 19, 2008 Order is not a final, appealable Order pursuant to F.R.C.P. 54 which provides, in pertinent part, that: [A]ny order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities. F.R.C.P. 54(b). It is the present intention of Mumma to appeal Judge Jones' Order granting possession of the property to Turner and dismissing Turner from the case at such time as the Order becomes final and appealable. 2 The undersigned hereby certifies that the pending U.S. Middle District action affects title to or other interest in the above-described real property. Respectfully submitted, Tho as W. Scott, Esquire Attorney I.D. No. 15681 Linda J. Olsen, Esquire Attorney I.D. No. 92858 KILLIAN & GEPHART, LLP 218 Pine Street P. O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 Date: ZU tj'!? Attorneys for Plaintiffs 3 0 Parcel #50-08-0574-014C Exhibit "W' P00EA1' P. ZIMER SPECIAL WARRANTY DEECORDER OF DEED C ='1J8ERLAtj5 CQUllry I THIS INDENTURE is made the JL day of July JS YA ven (2007) between PENNSY SUPPLY, INC., a Pennsylvania Corporation (beta called the Grantor), of the one part, and DANNY L. TURNER, of Cumberland County, Pennsylvania (hereinafter called the Grantee), of the other part. WITNESSETH, that the Grantor, for and in consideration of the sum of One 601100 ($1.00) lawful money of the United States of America, ? it we 1 and truly paid by the Grantee, at or before the sealing and delivery hereof, the receipt whereof is hereowledged, has granted, bargained and sold, aliened, enfeoffed, released and conflmed, and by sends does grant, bargain and sell, alien, enfepfl~ release and confirm unto the Grantee his heirs an assigns, ALL THAT CERTAIN lot or parcel of land situate in the Borough of Carlisle, County of Cumberland and Commonwealth of Pennsylvania, bounded and described as serforth in the legal description attache4 to this Deed as Exhibit "A" and incorporated by reference. UNDER AND SUBJECT to all conditions, easements, rights of way, agreements, covenants, liens, reservations, exceptions, restrictions and other ChOumbranoes of record, to the extent still valid. subsistina and enforceable. FURTHER UNDER AND SUBJECT to the covenant and agreement that the real }property conveyed in this deed shall not be used for, nor shall said real property be the site or location of, the manufacture orproduction of concrete. This covenant and agreement shall be perpetual, shall be binding upon G uAcc and Grantee's heirs and assigns, shall run with the land and shall be enforceable by Grantor and its successors and assigns. TOGETHER with all and singular the improvements, ways, streets, alleys; driveways, passages, waters, water-courses, rights, liberties, privileges, hereditaanents and appurtenances, whatsoever unto the hereby granted premises belonging, or in any wise appertaining, and the reversions and remainders, rents, issues, and profits thereof, and all the'eda% right, title, interest, property, claim and demand whatsoever of it, the Grantor, in law, equity, or otherwise howsoever, of, in and to the samo and every part thereof. TO HAVE AND TO HOLD the said lot or piece of ground above described,with the buildings and improvements thereon, erected, hereditaments and premises hereby granted, or mentioned and intended so to be, with the appurtenances, unto the Grantee his heirs and assigns, to and for the only proper use and behoof of the Grantee, his heirs and assigns forever. UNDER AND SUBJECT, as aforesaid WK 280 PACE4684 1343 14.1 711M 1 AND the Grantor, for itself and its successors and assigns, does covenant, promise and agree, to and with the Grantee his heirs and assigns, by these presents, that it, the Grantor, and its successors and assigns, all and singular the hereditaments and premises hereby granted or mentioned and intended so to be, with the appurtenances, unto the Grantee, his heirs and assigns, against the Grantor and its successors and assigns, and against all and every person and persons whomsoever lawfully claiming or to claim the same or any part thereof, by, from or under it or any of them, shall and will, subject as aforesaid, SPECIALLY WARRANT and forever DEFEND. IN WITNESS WHEREOF, the Grantor has hereunto set its corporate hand and seal. Dated the day and year first above written. SIGNED AND DELIVERED IN THE PRESENCE OF, ATTEST: If 14/ J 4'. 1 == By: Print Name Dere S. derslice Title: Se PENNSY SUPPLY, INC. By: Print Name: y O. Good Title: Vice ident 134311171107 2 sba 2$0 PACE4685 I A COMMONWEALTH OF Ph NSYLVANIA SS COUNTY OF &Z=:C/2aZ? On this // day of July 2007, before me a Notary Public in and for the Co=onwealth of Pennsylvania, the undersigned officer, personally appeared Randy 0. Good, who acknowledged himself to be the Vice President of Pennsy Supply, Inc. a corporation, and that as such officer, being authorized to do so, executed the foregoing ituu rent for the purposes therein contained by signing the name of the corporation by himself as such officer. In Witness Whereof, l hereunto set my official seal. SrAL? Notary Public ;p ' ! F YAIVIA j,. ? (Tree Nowry Public My Commission Expires: J Victoct? coliu ?OrouXx OM60lud Cagey M canaiwioaa • paeelet20,2010 recorded .011beviand C'ounty PA Recorder of Deeds The address of the within-named Grantee is: U905 hSR Lai TLW CY16-Sle- 0-A .Z::e> S r?' By: 0 Attorney for Grantee 114314.1 7tIOM 600K 280 PAGE4686 r .. Exhibit "A" ALL THAT CERTAIN piece or parcel of land situate in the Borough of Carlisle, County of Cumberland and Commonwealth of Pennsylvania designated as Parcel No. 7 on a certain Land Subdivision Plan for Ritner Park Associates, recorded on March 16, 1984 in Cumberland County Plan Book 45, Page 46, bounded and described in accordance with said Land Subdivision Plan, as follows, to wit: BEGINNING at a point on the eastern boundary line of Industrial Drive (a 6Q' wide right of way containing a paved cartway having a width of 36', more or less); and at the northwestern comer of Parcel No. 2 on said Land Subdivision Plan; thence extending from said beginning point along the eastern boundary line of Industrial Drive North 17 degrees 50 minutes 30 seconds West a distance of 208.13 fact to a point on the southern line of Parcel No. 3 on the above t'aferenced Land Subdivision Plan; thadcc along said boundary line North 72 degrees 9 minutes 30 seconds East a distance of 500 feet to a point along lands now or formerly of Carlisle Syntex Systems; thence along said boundary line South 17 degrees 50 minutes 30 seconds East a distance of 208.13 feet to a point at the northeastern corner of Parcel No. 2 on said Land Subdivision Plan; thence along said Parcel No. 2 South 72 dogmas 9 minutes 30 seconds West a distance of 500 feet to a point, being the point or place of BEGINNING. CONTAINING 2.389 acres, more or less. BEING the same premises which Benedict B. Randolph by deed dated February 9, 2000 and recorded February 10, 2000 in Cumberland County Record Book 216, Page 64, granted and conveyed unto Pennsy Supply, Inc., Grantor and Party of the First Part herein. F N g w ° z ROK 281 PAGE4687 uuua xfaar ? ?? ? ? 4 na a r x ?, ?;+ -9 Case 1:98-cv-00087-SHR Document 121 Filed 12/19/2007 Page 1 of 15 Linda J. Olsen, Esquire PA I. D. 92858 Thomas W. Scott, Esquire PA I.D. 15681 Killian & Gephart, LLP 218 Pine Street P. O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 lolsenkkillian2enhart.com tscottCalkillianLeuhart.com IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA Robert M. Mumma, II Grantor Retained Annuity Trust; Robert M. Mumma, II and Susan Mumma, Movants V. Benedict B. Randolph V. . Pennsy Supply, Inc., . Respondent V. Danny L. Turner, Additional Respondent No. 98-0087 Judge Sylvia H. Rambo FILED ELECTRONICALLY VIA ECF MOTION FOR AN ORDER PURSUANT TO RULE 7(b) TO JOIN AN ADDITIONAL RESPONDENT. Case 1:98-cv-00087-SHR Document 121 Filed 12/19/2007 Page 2 of 15 Movants, Robert M. Mumma, II Grantor Retained Annuity Trust ("GRAT"), Robert M. Mumma, II, and Susan Mumma (collectively "Mumma"), by and through their attorneys, Killian & Gephart, LLP, pursuant to F.R.C.P. 7 (b) hereby file this Motion to Join an Additional Respondent, to Enforce a Settlement Agreement and Stipulation of Dismissal, for Contempt, and to Impose Sanctions, and in support thereof, aver the following: I. The Parties Movant, Robert M. Mumma, II Grantor Retained Annuity Trust ("GRAT") is a legally established trust entity of which Robert M. Mumma, II is the Grantor and Robert M. Mumma, II and Susan Mumma are the Trustees. The mailing address of the GRAT is P. O. Box 58, Bowmansdale, PA 17008. 2. Movants Robert M. Mumma, II and Susan Mumma are adult individuals, having a legal residence address of 6880 S.E. Harbor Circle, Stuart, FL 34996. 3. Respondent, Pennsy Supply, Inc. (hereinafter "Pennsy"), is a Pennsylvania Corporation with a registered business address C/O CT Corporation System, Philadelphia, Pennsylvania. Pennsy regularly does business in the Commonwealth of Pennsylvania. 2 Case 1:98-cv-00087-SHR Document 121 Filed 12/19/2007 Page 3 of 15 4. On information and belief, Additional Respondent, Danny L. Turner (hereinafter "Turner'), is an adult individual having an address of 210 Big Pond Road, Shippensburg, Cumberland County, Pennsylvania. H. The Original Dispute 5. The GRAT commenced litigation against Benedict B. Randolph ("Randolph") by filing a Complaint on January 16, 1998 in the United States District Court for the Middle District of Pennsylvania and docketed to No. 98- 0087. 6. The litigation sought specific performance (or in the alternative, damages) of a December 18, 1995 Letter of Intent between the GRAT and Benedict Randolph (hereinafter "Randolph"), whereby the GRAT alleged Randolph was to convey property at 1607 Industrial Drive, Carlisle, Pennsylvania to the GRAT. 7. Pennsy was granted leave to intervene in the aforesaid litigation, as of right, arguing that enforcement of the Letter of Intent would violate other agreements to which both Pennsy and Mumma (or entities controlled by him) were party. 3 Case 1:98-cv-00087-SHR Document 121 Filed 12/19/2007 Page 4 of 15 8. Pennsy also asserted claims against Randolph for specific performance of its alleged right of fast refusal to acquire the 1607 Industrial Drive property and against Mr. Mumma for fraud. 9. Both Pennsy and Mumma are in the business of producing, selling and delivering concrete, concrete by-products and asphalt in and around Cumberland County, Pennsylvania. 10. The 1607 Industrial Drive property had particular value to both Pennsy and Mumma because it is in an industrial park that permits concrete plants in a geographic area where the product is in demand and it is difficult, if not impossible, to site another similar plant due to zoning and other land use regulations. The location of a concrete manufacturing plant is very important to the profitable operation of a concrete manufacturing business due to the costs associated with transporting the product to the end user. 11. All parties denied the allegations set forth in the claims by and against one another in the litigation. 12. Attorneys for Pennsy Supply, Inc. in the above-captioned litigation were Michael A. Finio, Esquire and Stephen M. Donweber, Esquire, Attorney ID Nos. 38872 and 71170, respectively, of the law firm of Saul, Ewing, Remick & 4 Case 1:98-cv-00087-SHR Document 121 Filed 12/19/2007 Page 5 of 15 Saul LLP, Penn National Insurance Tower, 2 North Second Street, 7th Floor, Harrisburg, PA 17101. 13. The case was assigned to the Honorable Sylvia H. Rambo. III. Settlement of the Original Dispute via Stipulation of Dismissal and Settlement Agreement and General Release 14. A non jury trial on the issues presented in the original dispute was scheduled to begin before Judge Rambo on January 18, 2000. 15. Prior to trial the parties reached a settlement of their differences. 16. At the time the trial was set to begin before Judge Rambo on January 18, 2000, Stephen Donweber, Esquire, representing Pennsy Supply, reported to the Court that the "parties to this action have settled all of their claims," said settlement being made pursuant to "the authority of the respective attorneys to settle on behalf of their clients." (Tr. 2-3). A copy of the transcript of the settlement hearing before Judge Rambo is attached hereto as Exhibit "A." 17. A Stipulation of Dismissal ("Stipulation') was read into the record, the terms of which were subsequently reduced to writing in a Settlement Agreement and General Release ("Settlement Agreement"). 5 Case 1:98-cv-00087-SHR Document 121 Filed 12/19/2007 Page 6 of 15 18. The Stipulation and ultimate Settlement Agreement provide, in pertinent part: 2. All claims in the above action have been settled on the following basis: a. Pennsy Supply, Inc. will purchase the property at 1607 Industrial Drive in Carlisle, Pennsylvania from Ben Randolph for $300,000. At settlement, the proceeds of this payment shall be divided as follows: $217,500 shall be paid to Benedict Randolph and $82,500 shall be paid to the Robert M. Mumma, II Grantor Retained Annuity Trust in care of Robert M. Mumma., II Trustee. Penny Supply will get title and the deed to the Carlisle property at 1607 Industrial Drive. b. Penny will also give Robert M. Mumma, II a right of first refusal to purchase the property at 1607 Industrial Drive which will be triggered on Penny's future receipt of a bona fide offer to purchase the property from a third party which Pennsy is willing to accept. Pennsy will give Mumma twenty (20) days to exercise this right and ninety (90) days to close from the date of the exercise. A copy of the Stipulation is attached hereto as Exhibit "B." A copy of the Settlement Agreement attached hereto as Exhibit "C." 19. According to the terms of the Stipulation, failure to comply with the terms of the Stipulation "will result in proceedings for contempt against the non- complying party." See Exhibit `B," paragraph 5. 20. Attorneys for Pennsy Supply, Inc. (Michael A. Finio, Esquire or Stephen M. Donweber, Esquire) executed the Stipulation on January 18, 2000. 6 Case 1:98-cv-00087-SHR Document 121 Filed 12/19/2007 Page 7 of 15 21. The Stipulation was approved by the Honorable Sylvia H. Rambo and entered of record on January 18, 2000 at document number 114. 22. The docket entry reads: STIPULATION AND ORDER signed by cnsl and Judge Sylvia H. Rambo OF DISMISSAL: 1) All elms in the above action are hereby dismissed with prejudice by all parties. 2)3)4)5) See order for the details. (emphasis added). 23. On January 28, 2000, the parties entered into a Settlement Agreement, as Ordered by the Stipulation. The Settlement Agreement contains exactly the same terms as the Stipulation. 24. The Settlement Agreement was executed by Donald Eshleman, President of Pennsy Supply, Inc., and his signature was witnessed by Matthew M. Haar, Esquire, an attorney with Saul Ewing who also represented Pennsy in this matter. 25. The language of both the Stipulation approved on January 18, 2000 and the Settlement Agreement dated January 28, 2000 is clear and explicit. 7 Case 1:98-cv-00087-SHR Document 121 Filed 12/19/2007 Page 8 of 15 IV. Breach of the Stipulation of Dismissal and the Settlement Agreement and General Release 26. Movants have learned that on July 11, 2007, Pennsy Supply sold the 1607 Industrial Drive property that was at the heart of the original dispute and is subject to Mr. Mumma's right of first refusal pursuant to the Settlement Agreement to Turner, as evidenced by Special Warranty Deed recorded in Cumberland County Record Book 280, Page 4684. A copy of the Deed is attached hereto as Exhibit "D." 27. The deed from Pennsy to Turner contains a restrictive covenant that the property conveyed by the deed is not to be "the site or location of, the manufacture or production of concrete." 28. The Realty Transfer Tax Statement of Value accompanying the Special Warranty Deed appears to have been signed by Michael A. Finio, Esquire, Saul Ewing. A copy of the Realty Transfer Tax Statement of Value is attached hereto as Exhibit "E." 29. Pennsy's receipt of Turner's offer to purchase the property, which Penny was willing to accept, required Pennsy to notify Mumma of its receipt of a 8 Case 1:98-cv-00087-SHR Document 121 Filed 12/19/2007 Page 9 of 15 bona fide offer to purchase the property from a third party and triggered Mumma's right of first refusal. 30. Neither Pennsy Supply nor its counsel gave Robert M. Mumma, II any notice of the receipt of an offer to purchase the property by Turner. 31. The sale of the property at 1607 Industrial Drive, Carlisle, Pennsylvania to Turner on July 11, 2007 without notice to Mumma was a direct violation of the terms of both the Stipulation and the Settlement Agreement. 32. Pennsy's violation of the Stipulation and the Settlement Agreement deprived Mumma of the opportunity to exercise his right of first refusal and acquire the property. 33. Mumma wishes to exercise his rights and to acquire Pennsy's entire right, title and interest in the property, as required by the terms of the Stipulation and Settlement Agreement. 34. Mumma seeks specific performance of the Stipulation of Dismissal and the underlying Settlement Agreement and General Release through this Honorable Court, which explicitly retained jurisdiction in this matter as set forth in the settlement documents. 35. Mumma is willing to match the purchase price paid by Turner. 9 Case 1:98-cv-00087-SHR Document 121 Filed 12/19/2007 Page 10 of 15 36. As a result of Penny's violation of the terms of the Stipulation and Settlement Agreement, Mumma has suffered as yet undetermined damages on account of his inability to acquire the 1607 Industrial Drive property in July of 2007 and to operate a portion of his concrete manufacturing and supply business from that location. 37. Pennsy Supply was represented by the Law Firm of Saul Ewing in the sale of the 1607 Industrial Drive property to Turner, specifically Michael A. Finio, Esquire and Matthew Haar, Esquire. 38. Pennsy Supply and their counsel, the Law Firm of Saul Ewing, specifically including but not limited to Michael A. Finio, Esquire and Matthew Haar, Esquire, knew the terms and conditions under which the above-captioned litigation was dismissed and that the property at 1607 Industrial Drive, Carlisle, Pennsylvania was encumbered by Mumma's right of first refusal. 39. Jurisdiction to enforce the Stipulation and the Settlement Agreement remains with this Honorable Court pursuant to paragraph 4 of the Stipulation of Dismissal dated January 18, 2000. 40. Respondent Pennsy's conduct and that of its counsel in breaching the terms and conditions of the Stipulation and Settlement Agreement requires the enforcement of the obligations of the Settlement Agreement and warrants the ICI 10 Case 1:98-cv-00087-SHR Document 121 Filed 12/19/2007 Page 11 of 15 imposition of sanctions against Pennsy Supply, Inc. for contempt and also for the payment of Mumma's losses and expenses, including attorneys' fees, incurred as a result of the violation of the Settlement Agreement and General Release and the Stipulation of Dismissal and their enforcement through this action. V. Notification of Breach 41. On September 20, 2007, Mumma's counsel notified Michael Finio, Esquire that Pennsy Supply, Inc. was in breach of the Settlement Agreement and the Stipulation of Dismissal. A copy of said Notice is attached hereto as Exhibit "F." 42. By correspondence dated September 27, 2007 Mr. Finio advised counsel for Mumma that he was "not directly involved in the litigation," that Mr. Donweber and Ms. Wagner, "who helped to close the 2000 transfer from Randolph to Pennsy" are no longer associated with Saul Ewing, and that he was "investigating the issues" raised in counsel for Mumma's September 20, 2007 Notice. A copy of Mr. Finio's letter is attached hereto as Exhibit "G." 43. There has been no further response from Attorney Finio regarding this matter since his letter of September 27, 2007. 11 Case 1:98-cv-00087-SHR Document 121 Filed 12/19/2007 Page 12 of 15 44. On October 3, 2007 counsel for Mumma spoke with No Otto, Esquire, counsel for Turner, and advised him of the alleged breach of the Settlement Agreement and Stipulation of Dismissal by Pennsy. VI. Joinder of Danny L.Turner 45. The property was indexed as lis pendens on February 19, 1998 in the Cumberland County Court of Common Pleas at No. 98-950 CIVIL. 46. On information and belief, the existence of the indexed lis pendens was known to Danny L. Turner and/or his counsel prior to the time Danny L. Turner purchased the property from Pennsy Supply, Inc. on July 11, 2007. 47. At no time did Danny L. Turner or his counsel contact Mumma to ascertain the status of the dispute that led to the indexing of the lis pendens. Had they done so, they would have been advised that the settlement agreement that led to the discontinuance of the litigation clearly provided Mumma with a right of first refusal, which he was prepared to exercise. 48. Turner knew or should have known that the 1607 Industrial Drive property was subject to Mumma's right of first refusal. 49. In order for this court to properly enforce the Stipulation of Dismissal and the Settlement Agreement and General Release, Turner should be 12 Case 1:98-cv-00087-SHR Document 121 Filed 12/19/2007 Page 13 of 15 joined as an Additional Respondent so as to subject him to the jurisdiction of the Court. WHEREFORE, Movants respectfully request that this Honorable Court issue an Order that: (a) Joins Danny L. Turner as an Additional Respondent to this action, subjecting him to the jurisdiction of this court; (b) Holds Pennsy Supply, Inc. in contempt for failing to notify Mumma of the receipt of a bona fide offer from a third party to purchase the property at 1607 Industrial Road, Carlisle, Pennsylvania, which would have triggered Mumma's right of first refusal; (c) Voids the transaction by which Pennsy purported to convey the property to Turner; (d) Orders Pennsy Supply, Inc. to convey all of its right, title and interest in the 1607 Industrial Drive property to Mumma or Mumma's designee within 90 days of the Order upon payment by Mumma to Pennsy of $430,123.00; (e) Imposes sanctions upon Pennsy Supply in the amount of all transfer taxes, title fees, legal fees, costs and other expenses incurred by 13 Case 1:98-ev-00087-SHR Document 121 Filed 12/19/2007 Page 14 of 15 Mumma in conjunction with the acquisition of the 1607 Industrial Drive property from Pennsy; (f) Schedules a hearing at which time Mumma may establish all consequential damages, including but not limited to lost profits and lost opportunity suffered as a result of Pennsy's breach of the Settlement Agreement; (g) Imposes sanctions on Pennsy in the amount of all damages suffered by Mumma.; (h) Orders Pennsy to pay all attorneys' fees and costs incurred by Mumma in enforcing the Settlement Agreement, acquiring the property and establishing damages; and 14 Case 1:98-cv-00087-SHR Document 121 Filed 12/19/2007 Page 15 of 15 (i) Grants whatever additional relief, including additional monetary sanctions against Pennsy Supply, Inc. and/or its counsel as this Honorable Court deems just and appropriate. Respectfully submitted, Al Linda J. Olsen Thomas W. Scott, Esquire Attorney I.D. No. 15681 Linda J. Olsen, Esquire Attorney I.D. No. 92858 KILLIAN & GEPHART, LLP 218 Pine Street P. O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 Date: December 19, 2007 Attorneys for Movants 15 ?,k 19.4 C Case 1:98-cv-00087-SHR Document 134 Filed 03/14/2008 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ROBERT M. M ' [MIA,H GRANTOR RETRAINED ANNUITY TRUST- ROBERT M. MUMMA, H. and SUSAN MUMMA, Plaintiffs, V. BENEDICT B. RANDOLPH, PENNSY SUPPLY INC., and DANNY L. TURNER, Defendants. . . Civil No. 1:98-CV-0087 JUDGE SYLVIA IL RAMBO MEMORANDUM This is a new chapter in an ongoing dispute over the We of real property located at 1507 Industrial Drive, in Carlisle, Pennsylvania ("the property"). Currently pending before the court is a motion by Robert M. Mumma, II Grantor Retained Annuity Trust, Robert M. Mumma, II and Susan Mumma. (collectively referred to in this opinion as "Mumma'] for an order (1) enforcing a settlement agreement and stipulation of dismissal, (2) joining an additional respondent, Danny L. Turner, (3) holding Pennsy Supply, Inc. ("Penny") and its lawyers in contempt for violating the settlement agreement and (4) imposing sanctions. (Doc. 121.) This opinion will only address the court's jurisdiction to enforce the settlement and the joinder of Turner. I. Background In 1998, Mumma commenced an action in this court against Benedict Randolph ("Randolph') seeking to enforce a letter of intent from Randolph to sell the property to Mumma. Pennsy, the purchaser of the property from Randolph, intervened in the suit. The parties reached a settlement before trial, and on January Case 1:98-cv-00087-SHR Document 134 Filed 03/14/2008 Page 2 of 7 18, 2000, a stipulation of dismissal was read into the record and signed by the parties and this court. In pertinent part, the stipulation provides as follows: 2. All claims in the above action have been settled on the following basis: b. Penny Supply Inc. will also give Robert M. Mumma, II a right of first re fusal to purchase the property at 1607 Industri al Drive which will be triggered on r S 's future receipt of a bona fide offer to purchase the properyty from a third party which Pennsy is willing to accept; Pennsy will give 1 wnn?a twenty (20) days to exercise this right and ninety (90) days to close from the date of exercise. 4. This Court shall retain jurisdiction to enforce this Stipulation and the underlying settlement a ent in this action. 5. Failure to comply with the =of this Stipulation will result in proceedings for contempt against the non-complying party. (Doc. 121 Ex. B.) February 8, 2000, the settlement agreement was executed by the parties. (Id. Ex. C.) The agreement provided that "Pennsy hereby gives Robert M. Mumma, II a right of first refusal to purchase the property at 1607 Industrial Drive which will be triggered on Pennsy's future receipt of a bona fide offer to purchase the property from a third party which Pennsy is willing to accept...." (Id.) On July 11, 2007, Pennsy conveyed the property to Turner. (Doc. 121 Ex. D.) Neither Pennsy nor its counsel notified Mumma of the offer by Turner prior to the sale. Mumma maintains that he was willing to purchase the property at the price Tumor paid, but was unable to exercise his right of fast refusal on the property because he was not informed of Turner's offer. On December 19, 2007, after learning of the sale, Mumma filed a motion to enforce the settlement agreement, to join Turner as a party, to find Pennsy and its counsel in contempt, and to impose sanctions. (Doc. 121.) A brief in support was filed on January 16, 2008. (Doc. 123.) With respect to the- enforcement of the settlement agreement, Mumma seeks money damages and specific performance of the right of first refusal to purchase the property. Mumma requests that the court void the, conveyance of the property from Pennsy to Tuner and order Case 1:98-cv-00087-SHR Document 134 Filed 03114/2008 Page 3 of 7 Pennsy to convey the property to Mumma upon tender of the purchase price paid by Turner. On February 4, 2008, Pennsy filed a response (Doc. 126) and a brief in opposition to Mumma's motion (Doc. 127). On February 5, 2008, counsel entered an appearance on behalf of Turner (Doc. 128) and filed a response (Doc. 129) and a brief in opposition (Doc. 130). On February 14, 2008, Mumma filed briefs in reply to Pennsy (Doc. 132) and Turner (Doc. 133). Accordingly, the matter has been fully briefed. H. Discussion Mumma seeks enforcement of the stipulation of dismissal and settlement agreement and joinder of Turner as a necessary party to this litigation. Penny and Turner oppose the motion, arguing that this court lacks jurisdiction to enforce the settlement and that joinder of Tuner is unnecessary. These issues will be addressed in turn. A. Subiect Matter Jurisdiction The court's subject matter jurisdiction over the dispute concerning Mumma's right of first refusal to the property has been challenged. Mumma argues that the court has ancillary jurisdiction to enforce the settlement because the court expressly retained such jurisdiction in paragraph four of the stipulation of dismissal. Turner asserts that the dispute concerning the right of first refusal is separate from the settlement agreement -and that the court lacks an independent basis for jurisdiction over the matter. The court concludes that it has subject matter jurisdiction over this dispute. In Kokkonen v. Cr Mardian Life Ins. Co. of Am., 511 U.S. 375, 380-81 (1994), the Supreme Court recognized that a federal district court may exercise ancillary jurisdiction to enforce a court-approved settlement agreement. In 3 Case 1:98-cv-00087-SHR Document 134 Filed 03/14/2008 Page 4 of 7 Kokkonen, the district court dismissed a complaint with prejudice after the parties reached a settlement agreement. Id. at 377. In the order dismissing the case, the court did not refer to the settlement agreement or expressly retain jurisdiction to enforce the agreement. Id. The Supreme Court held that the district court lacked subject matter jurisdiction to later enforce the settlement agreement because the breach of the settlement agreement did not flout the court's authority. Id. at 380-81. However, the Court went on to explain, The situation would be quite different if the parties' obligation to comply with the terms of the settlement agreement had been made part of the order of dismissal---either by separate provision (such as a provision `retaining jurisdiction" over the settlement agreement) or by incorporating the terms of the settlement agreement in the order. In that event, a breach of the agreement would be a violation of the order, and ancillary jurisdiction to enforce the agreement would therefore exist. That, however, was not the case here. Id. at 381. By contrast, in this case the terms of the settlement agreement that Mumma seeks to enforce were incorporated into this court's order dismissing the case, and the court expressly retained jurisdiction to enforce the agreement. C-f. Shaffer v. GTE North, Inc., 284 F.3d 500, 504-05 (3d Cir. 2002) (no ancillary jurisdiction where court's dismissal order did not incorporate specific terms of settlement or expressly retain jurisdiction); In re Phar-Mor, Inc. Sec. Lit., 172 F.3d 270, (3d Cir. 1999) (holding that 'incorporation of the phrase `pursuant to the terms of the Settlement" in the dismissal order was insufficient to confer subject matter jurisdiction to enforce the settlement). Accordingly, this court has ancillary jurisdiction to enforce the settlement agreement. Turner argues that Mumma's current claim is not ancillary to the stipulation of dismissal or settlement, but instead arises from the breach of a wholly separate agreement between Pennsy and Mumma regarding the right of first refusal. Case 1:98-cv-00087-SHR Document 134 Filed 03/1412008 Page 5 of 7 According to Turner, Pennsy satisfied both the stipulation of dismissal order and the settlement by granting Mumma the right of first refusal, which then formed a second agreement. Pennsy's subsequent failure to actually notify Mumma constitutes a breach of the second agreement, but not the stipulation of dismissal or the settlement. Under this logic, Mumma.'s claim against Pennsy regarding the right of first refusal requires an independent basis for subject matter jurisdiction and cannot be based on ancillary jurisdiction. It is premature for the court to decide whether Pennsy has in fact satisfied the terms of the stipulation of dismissal and settlement. However, with respect to subject matter jurisdiction, the result would be the same in either case. Even if Turner's characterization of the settlement and right of first refusal is accepted and enforcement of the right of first refusal is not ancillary to the prior order, Plaintiff has asserted diversity as an independent basis for subject matter jurisdiction. There is complete diversity among the parties because Plaintiffs are citizens of Florida' and both Pennsy and Taylor are citizens of Pennsylvania. Additionally, the amount in controversy exceeds $75,000. Thus, the court has an independent basis for subject matter jurisdiction over this dispute pursuant to 28 U.S.C. § 1322. B. Joinder of Danny L. Turner Mumma seeks to join Danny L. Turner as a party to this matter pursuant to Fed. R. Civ. Pro. 19(a)(1)(B)(i) as a necessary party to this litigation. Rule 19(aXl)(B)(i) provides as follows: 1 As an unincorporated association, the Robert M. Mumma, H Grantor Retained Annuity Trust is a citizen of every state in which its members are citizens for the purpose of determining diversity jurisdiction. See Vent Realty An. v. First Fed. Sav. & Loan Ass'n of Phila., 657 F.2d 29, 31-32 (3d Cir. 1981). Thus, despite the fact that the Robert M. Mumma, lI Grantor Annuity Trust has a Pennsylvania address, there is complete diversity because Robert M. Mumma R and Susan Mumma, the trustees, are both citizens of Florida. 5 Case 1:98-cv-00087-SHR Document 134 Filed 03/14/2008 Page 6 of 7 (a) Persons Required to Be Joined if Feasible. (1) Required Party. A person who is subject to service of process and whose joinder will not deprive the court of subject-maer jurisdiction must be joined as a party if: (B) that person claims an interest relating to the s bject of the action and is so situated that deposing of the action in the person's absence as a practical matter impair or impede the person's ability to protect the interest The court agrees that Turner must be joined. Penny and Turner base their objections to joinder on the argument that Mumma will be unable to prevail on the merits of his claim However, because Mumma is asking this court to void the conveyance of the property from Pennsy to Turner, and to order Pennsy to convey the property to Mumma, Turner has an interest in the subject matter of this action which would be difficult to protect if he is absent from this action. Additionally, joinder of Turner is feasible because it will not destroy the court's subject matter jurisdiction due to the complete diversity between Mumma on the one hand and Pennsy and Turner on the other. Accordingly, Turner will be joined as a party to this action. III. Conclusion For the reasons stated above, the court has jurisdiction over Mumma's request to enforce judgment and Tumor will be joined as a party. An appropriate order will issue. s/S H. Rambo United States District Judge Dated: March 14, 2008. Case 1:98-cv-00087-SHR Document 134 Filed 03/14/2008 Page 7 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ROBERT 1%L H GRANTOR RETAINED ANNUITY TRUST- ROBERT M. MUMMA, H and SUSAN MUMMA, Plaintiffs, V. BENEDICT B. RANDOLPH, PENNSY SUPPLY INC., and DANNY L. TURNER, Defendants. Civil No. 1:98-CV-0087 JUDGE SYLVIA H. RAMBO i i s ORDER IT IS HEREBY ORDERED THAT: (1) Danny L. Turner is JOINED as aparty to this action; (2) A hearing will be held on the merits of Mumma's motion for enforcement of judgment at 9:30 a.m. on April 3, 2008 in Courtroom No. 3, Eighth Floor, Federal Building, Third and Walnut Streets, Harrisburg, Pennsylvania; and (3) A hearing will be held on the issues of contempt and sanctions at a later date. s/S lvia H. Rambo United States District Judge Dated: March 14, 2008. ?Xti??? ? Case 1:98-cv-00087-JEJ Document 162 Fled 11/19/2008 Page 1 of 13 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ROBERT M. MUMMA, II, GRANTOR RETAINED ANNUITY TRUST; ROBERT M. MUMMA, U, and SUSAN MUMMA Civil No. 98-cv-0087 Movants, V. BENEDICT B. RANDOLPH V. PENNSY SUPPLY, INC., Judge John E. Jones III Respondent, V. DANNY L. TURNER, Additional Respondent. MEMORANDUM AND ORDER November 19, 2008 THE BACKGROUND OF THIS ORDER IS AS FOLLOWS: Pending before this Court is a self-styled "First Motion to Enforce Settlement Agreement and Stipulation of Dismissal, to Join Additional Respondent and to Impose Sanctions filed by the Movant" C Movant's Motion" or "Motion'), which was filed on December 19, 2007. (Rec. Doc. 121). For the reasons that 1 Case 1:98-m-00087-JEJ Document 162 Filed 11/19/2008 Page 2 of 13 follow, we will grant in part and deny in part the Movant's Motion. FACTUAL BACKGRAO>lNDo In 1998, litigation was commenced to the above caption between Robert M. Mumma ("Mumma") and Pennsy Supply, Inc. ("Penny'' regarding a piece of land in Carlisle (the "Carlisle property" or "Property) that was used for manufacturing concrete. Mumma recorded a lis pendens on the Property in Cumberland County while it was the subject of litigation, which was ultimately resolved through a settlement agreement that was memorialized by a court order. That agreement gave Pennsy ownership of the Property but also granted Mumma a first right of refusal if Pennsy ever chose to sell the Property. Unlike the lis pendens, the right of fast refusal was not placed on the public record in Cumberland County. A few years later, Danny L. Turner ("Turner'' expressed interest in the Property. He retained counsel who conducted a title search and discovered the aforementioned lis pendens on the Carlisle Property. According to Turner's counsel, the following steps were taken to ensure the Property was not encumbered: (i)Turner received verbal assurances from Pennsy's attorneys at Saul Ewing that the matter involving the lis pendens had been settled and dismissed; (ii) he obtained a copy of the docket report' showing that the underlying case in federal ' The docket entry directed the reader to "see order for details." 2 Case 1:98-cv-00087-JEJ Document 162 Filed 11/19/2008 Page 3 of 13 court that formed the basis of the !is pendens had been dismissed with prejudice; and (iii) received an executed seller's affidavit from Pennsy stating that there were no agreements affecting the premises. Upon receiving these assurances, Turner made an offer for the Property. Pennsy did not inform Turner of!Mumma's first right of refusal nor did Pennsy notify Mumma that it had a potential purchaser for the Property. Instead, Pennsy ignored Mumma's first right of refusal and sold the Property in 2007 to Turner under a deed restriction that operated in perpetuity, prohibiting Turner, and all future grantees, from using the premises to manufacture concrete. When Mumma later learned of this transaction, he filed a motion to compel Pennsy to comply with the settlement agreement and honor the fast right of refusal (the aforementioned "Movant's Motion"). At that time, the case was before our colleague, the Honorable Sylvia:, Rambo, who, in addition to allowing the joinder of Turner, scheduled a hearing for April 3, 2008 (the "Hearing's to take testimony thereon. (Rec. Doc. 134). PROCEDURAL HISTORY: At the Hearing, Judge Rambo appropriately bifurcated the Movant's Motion into discrete portions, the fast concerning the merits of the motion ("merits portion') and the second relating to the nature and extent of relief, if any should be 3 Case 1:98-cv-00087-JEJ Document 162 Filed 11!19!2008 Page 4 c 13 afforded ("relief portion"}. Judge Rambo conducted the Hearing and entered an Order directing the parties to address three distinct legal issues? (Rec. Doc. 139). These issues were fully briefed when Judge Rambo entered an Order of Recusal on August 1, 2008. (Rec. Doc. 150). The case was then assigned to Chief Judge Yvette Kane, who, on August 6, 2008, also entered an Order of Recusal that, in turn, resulted in the reassignment of the case to us. (Rec. Doc. 140). Oral argument regarding the briefed legal issues commenced before us on November 13, 2008. After digesting the substance of the arguments at that proceeding, and upon a review of the submissions made prior thereto by all parties, we are now prepared to resolve the merits portion of the Movant's Motion. Accordingly, the following discussion will focus exclusively on the merits portion of the motion; issues of relief will be addressed at a later time. DISCUSSION: At bottom, the dispute presents the Court with two overarching issues, which we will address separately below. A DID PENNSY BREACH THE SETTLEMENT AGREEMENT WHEN IT FAILED TO HONOR 1VIUMMA95 FIRST RIGHT Z These issues were: (i) Was the restrictive use covenant in the Pennsy-Turner deed valid and enforceable?; (ii) May the first right of refusal be recorded and if so, must it in order to be enforceable? (iii) Did the lis pendens impart constructive notice to Turner such that he had a duty to investigate the outcome of theI998 Mumma Pennsy litigation? 4 Case 1:98-cv-00087-JEJ Document 162 Filed 11/19/2008 Page 5 of 13 REFUSAL AND, IF SO, WHAT WAS THE CONSEQUENCE OF THAT BREACH? Despite the somewhat contrived controversy regarding this issue set forth in the briefs filed by Penury, at oral argument Pennsy freely admitted that it had in fact breached the settlement agreement when it failed to notify Mumma that it had a potential purchaser for the Carlisle property. Implicit in this concession is Pennsy's admission that Mumma's first right of refusal was valid and enforceable despite Mumma's failure to record it.' After all, if the first right of refusal was void as a result of the failure to record, Penny's failure to notify Mumma of a potential purchaser for the Carlisle property would not have resulted in a breach. The consequence of this breach was, unquestionably, that Pennsy sold the Carlisle property, encumbered by a perpetual use restriction prohibiting concrete manufacturing on it, to Turner. These conclusions lead us to focus on the second and more complex issue that follows. D WAS TURNER A GOOD FAITH PURCHASER? When a seller (in this case Pennsy) transfers a parcel of land, in which a ' Indeed, we believe this implicit admission to be in line with Pennsylvania law, which has held, "the purpose of the recording statutes is to protect subsequent bona fide purchasers from injuries caused by secret pledges of property." Commonwealth of Pmnsylmmia Game Comm'n v. Odch, 565 A.2d 859, 861 (Pa. Commw. CG 1989). Therefore, "Pennsylvania recording laws ... do not render invalid an unrecorded interest in land." 11 at 862 (citing land v. Pennsylvania Housing Finance Agency. 515 A.2d 1024 (Pa. Commw. Ct. 1986). 5 Case 1:98-cv-00087- JEJ Document 162 Filed 11/19/2008 Page 6 of 13 third party (in this case Mumma) has an interest or right, to a buyer (in this case Turner), the buyer can retain possession of the property unencumbered by the third party's interest or right if the buyer is a "bona fide purchaser." 5= Wurtzel v. Park ToArne Place Apartments Ltd. P'shiv. 2001 WL 1807405 (Pa. Com. Pl. 2001); Semenko v. Campbell, 28 Pa. D&C 618,620 (Pa. Com. PI. 1982). A "bona fide" or "good faith" purchaser is a party who "pay[s] valuable consideration, ha[s] no notice of the outstanding rights of other3,4 and act[s] in good faith." Poffenb=er v. Goldstein, 776 A.2d 1037, 1042 (Pa. Commw. Ct. 2001) (citations omitted). In this instance, it is not contested that Turner paid valuable consideration for the Carlisle property. However, Mumma does assert that Turner is not a bona fide purchaser because Turner had notice of his first right of refusal and therefore did not pursue his course of conduct in good faith. Turner, obviously, denies this assertion. Both parties use the same sequence of events to bolster their claims, which is as follows. After expressing an interest in purchasing the Property, Turner retained counsel who conducted a title search and discovered that there was a lis pendens on the Property. According to Turner's counsel, the following steps were taken to ` In claiming that one has no notice of the rights of another, the claimant must exercise due diligence in attempting to discover said third party rights. Lyon v.Allev. 130 U.S. 177,183 (1889). 6 Case 1:98-cv-00087-JEJ Document 162 Filed 1 1 /1 912008 Page 7 of 13 ensure the Property was not encumbered: (i) he obtained a copy of the docket reports showing that the underlying case in federal court that formed the basis of the Us pendens had been dismissed with prejudice; (ii) he received verbal assurances from Pennsy's allomeys at Saul Ewing that the matter involving the As pendens had been settled and dismissed with prejudice; and (iii) he obtained an executed seller's affidavit from Pennsy stating that there were no agreements affecting the premises. Mumma argues that the Us pendens discovered by Turner's counsel, in tandem with the docket report's direction to "see order for details," imparted constructive notice to Turner that there was a potential cloud on the title to the Carlisle property. Accordingly, Mumma posits that Turner's decision to proceed with the transaction without discovering the nature of the encumbrance exhibits a failure of due diligence constituting bad faith, which prevents Turner from qualifying as a bona fide purchaser. Mumma avers that Turner could have done any of a number of things, all within the range of due diligence, that would have enabled him to discover the nature of encumbrance. For instance, Mumma argues that Turner could have contacted Mumma himself, since Mumma was the party ' As previously noted, the docket entry directed the reader to "see order for details." At the Hearing, Turner's counsel admwith great candor, that upon seeing the order he attempted to access PACER to verify the contents of the order but was unsuccessful in doing so. 7 Case 1:98-cv-00087-JEJ Document 162 Filed 11/19/2008 Page 8 of 13 benefitted by the encumbrance, to inquire about the lis pendens. Additionally, Mumma asserts that Turner could have checked the docket for the settlement order, as was suggested by the docket report. Conversely, Turner aptly motes that "lis pendens" literally means "a pending suit." McCahill v,Robe g, 219 A.2d 306, 308 (Pa. 1996), and that a !is pendens serves to give notice to third parties of one thing and one thing alone: that the property is subject to litigation, Vintage Homes v. Leven, 554 A.2d 989 (Pa. Super. 1989). Thus, Turner avers that when he discovered a lis pendens on the Property, he was put on notice that it was the subject of litigation. With this knowledge, Turner received two separate assurances from Penny's counsel that the lis pendens was no longer on'the Property and that the title to the Property was free and clear of any encumbrances. Turner admits that he could have called Mumma to verify the nature of the encumbrance. He also admits that he could have expended additional energy in checking the settlement order. But, as Turner notes, the proper question is not could he have done these things; rather, it is should he have been required to do them. When taken in the context of Turner's course of conduct, we believe that the answer to the latter question is a resounding no. "Due diligence" is defined as "[t]he diligence reasonably expected from, and 8 Case 1:98- ,v 00087-JEJ Document 162 Filed 11/19/2008 Page 9 of 13 ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation." BLAcK'S LAw D1CTioNARY (8th ed.). Therefore, in the instant matter, "due diligence" would be the degree of diligence expected from an ordinary purchaser of real property in attempting to discover encumbrances on the sought-after property. Although we have already recounted Turner's actions (through his counsel Mr. Otto) in this regard, we summarize them again to emphasize our point. In attempting to discover if the Carlisle property was encumbered, Turner (i) obtained a copy of the docket report showing that the underlying case in federal court that formed the basis of the lis pendens had been dismissed with prejudice; (ii) he received verbal assurances from Penny's attorneys at Saul Ewing that the matter involving the lis pendens had been settled and dismissed with prejudice; and (iii) he obtained an executed seller's affidavit from Pennsy stating that there were no agreements affecting the premises. In our considered view, after. completing these steps and receiving these assurances, an ordinary purchaser could reasonably expect that the property was free from encumbrances. Turner, through his counsel Mr. Otto, did just that 6 e Indeed, we are of the opinion that Turner's actions were entirely reasonable, and that his inquiries justifiably led him to believe (that the Carlisle property was unencumbered. As a matter of fact, our determination that Turner vas a bona fide purchaser is buttressed by the actions of both Pennsy and Mumma. First, the seemingly blatant misrepresentations made by Pennsy's counsel to Turner's counsel regarding the clarity of the title to the Carlisle property supports our belief that Turner did not in fact have notice, constructive or otherwise, of Mumma's first right 9 Case 1:98-cv-00087-JEJ Document 162 Filed 11/19/2008 Page 10 of 13 Mumma would have us impose upon Turner a duty that would have required him to obtain assurances from each party involved in the underlying litigation regarding the details of its resolution, despite the fact that the docket showed it to have been fully resolved. Surely, this would saddle Turner and title searchers everywhere with an excessively onerous burden requiring verification of clear title from each and every potential source of any type of encumbrance! This undoubtedly would hamper the free alienability of real property, a concept which is supported by a strong public policy. Peters v. East Penn T Bch. Dist., 126 A.2d 802, 802 (Pa. Super. 1957). We decline the invitation to impossibly complicate property acquisition by imposing such a heavy burden. Accordingly, we find that Turner was a bona fide purchaser for value. Therefore, Turner's interest is superior to that of Mumma's, meaning that Turner shall retain the Property despite Mumma's first right of refusal. of refusal. Second, while Mumma certainly was not required to record the first right of refusal, his failure to do so is another factor that militates in favor of the conclusion that Turner had no notice of the first right of refusal and therefore acted in good faith when proceeding to consummate the transaction for the Carlisle property. The professional diligence required by counsel in real estate transactions is grindingly difficult on a good day. Simply put, we believe that Mr. Otto did everything that could have been reasonably expected of him in representing Mr. Turner. Having practiced in this same area, we clearly would have followed the same course as Mr. Otto did in examining the title to the Carlisle property. It could never have been within Mr. Otto's contemplation that Pennsy's counsel's failure to reveal the right of first refusal would be followed by an affidavit from Pennsy itself to the same effect. 10 Case 1:98-cv-00087-JEJ Document 162 Filed 11/19/2008 Page l l of 13 CONCLUSION: We now conclude yet another chapter in this ongoing legal saga between Mumma and Pennsy, which has now effectively protracted itself over the span of a decade. Regrettably for Turner, he was pulled into the vortex of this maelstrom as a result of his purchase of the Carlisle property; however, our resolution will end his participation in the case suib judice. He departs along with the Carlisle property, largely due to Mummia's unfortunate decision, as aforestated, not to record his right of first refusal. The above having been said, we would be remiss in failing to note our disquietude over the conduct by both Pennsy and its counsel. Clearly, absent their acts, which were disingenuous to say the least, we would not be at this point. While the facts and law will not allow us to provide Mumma with his fondest hope, the denial of the property to 'burner and effective reinstatement of the right of first refimal, we will now move to a second phase that will allow Mumma to state a case for alternative relief. NOW, THEREFORE, IT IS ORDERED THAT: 1. The relief requested in the Movant's Motion (Rec. Doc. 121) is GRANTED IN PART and DENIED IN PART to the following 11 Case 1:98-cv-00087-JEJ Document 162 Filed 11/19/2008 Page 12 of 13 extent: a. The Motion is GRANTED insofar as the Movant asserts that Pennsy breached the settlement agreement. b. The Motion is DENIED insofar as the Movant requests the opportunity to exercise his right of first refusal against Turner, the bona fide purchaser for value. C. The Motion is DENIED insofar as the Movant requests the opportunity to purchase the Carlisle Property from Mumma on terms similar or identical to those conditioned upon Turner. 2. Turner shall RETAIN possession of the Carlisle property subject to the terms of his contract with Pennsy. Turner is furthermore DISMISSED from the case. 3. Both Mumma and Pennsy shall submit initial briefs regarding the measure of damages resulting from Penmsy's breach of the settlement by December 2, 2008. The parties shall submit reply briefs, if any, by December 16, 2008. 4. The Court will schedule additional proceedings as necessary after a review of the requested submissions. 12 Case 1:98-cv-00087- JEJ Document 162 Filed 11/19/2008 Page 13 of 13 s/ Jolm E. Jones III John E. Jones III United States District Judge 13 e i CERTIFICATE OF SERVICE I do certify that I served a true and correct copy of the within document upon the following by depositing a copy of same in the United States mail, postage prepaid, addressed as follows: Hubert X. Gilroy, Esquire Katie J. Maxwell, Esquire Martson Deardorff Williams Otto Gilroy & Faller Martson Law Offices 10 East High Street Carlisle, PA 17013 Michael A. Finio, Esquire Matthew Haar, Esquire Saul Ewing, LLP Penn National Insurance Tower 2 North Second Street, 7th Floor Harrisburg, PA 17101 ,-IV' - , E4-, Killian & Gephart, LLP 218 Pine Street P. O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 Dated: yev ? CV",r C"S ` "n r'? 3 T fi +b ? d 1:\FILES\C1ients17436 Turner Hydraulics\7436.43.Motion2Strikel Created: 9/20/04 0:06PM Revised: 12/9/08 2:10PM Hubert X. Gilroy, Esquire MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES I.D. 29943 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Additional Defendant Robert M. Mumma, 11 Grantor Retained IN THE`COURT OF COMMON PLEAS OF Annuity Trust; Robert M. Mumma, II COUNTY, PENNSYLVANIA and Susan Mumma, Plaintiff V. Benedict B. Randolph, Defendant V. Pennsy Supply, Inc., Defendant V. Danny L. Turner, NO. 2008-7187 CIVIL ACTION - LAW CIVIL TERM MOTION TO STRIKE LIS PENDENS Additional Defendant Danny L. Turner, by his Attorneys Marton Law Offices, sets forth the following: 1. Plaintiffs in the above captioned action filed a "Praecipe For Lis Pendens" to the above action on December 9, 2008. 2. This is the second Lis Pendens filed by Plaintiffs and is, essentially, identical to the Lis Pendens filed at Docket Number 1998-950 (First Lis Pendens). 3. Danny L. Turner has filed a Motion to Strike the First Lis Pendens which is scheduled for a hearing before the Honorable Edward E. Guido on Thursday, December 11, 2009, at 3:00 p.m. 4. Additional Defendant Danny L. Turner requests that the above Lis Pendens be dismissed because it is duplicative and that it should be dismissed for the same reasons as set forth on his Petition to Strike the First Lis Pendens. WHEREFORE, Additional Defendant Danny L. Turner requests your Honorable Court to strike the Lis Pendens filed at the above term and number. Respectfully Submitted, MARTSON LAW OFFICES AL Hubert X. Gilr , Esquire Attorney I. o. 29943 Katie J. axwell, Esquire Attorney I.D. No. 206018 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date: December 1-, 2008 Attorneys for Additional Defendant Danny L. Turner CERTIFICATE OF SERVICE I, Shelly R. Brooks, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Motion was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Thomas W. Scott, Esquire Killian Gephart 218 Pine Street P.O. Box 886 Harrisburg, PA 17101 MARTSON LAW OFFICES By Sh. Brooks Ter EE st High Street Carlisle, PA 17013 (717) 243-3341 Dated: December / '2008 ? p -??, ?. h r- ? ...? ? ?: . c ? ,?+ °,? 1 Robert M. Mumma, H Grantor Retained : IN THE COURT OF COMMON PLEAS Annuity Trust; Robert M. Mumma, H : CUMBERLAND COUNTY PENNSYLVANIA and Susan Mumma, Plaintiffs No. 08-7187 CIVIL TERM V. Benedict B. Randolph V. Pennsy Supply, Inc., Defendant V. Danny L. Turner, Additional Defendant AFFIDAVIT OF SERVICE PURSUANT TO Pa. R.C.P 400(b)(3) Service of the December 9, 2008 Praecipe for Lis Pendens was made upon counsel for Defendants in the above-captioned matter as follows: DATE OF SERVICE: NAME OF SERVER: TITLE: METHOD: December 9, 2008 Joan C. Shady Legal Assistant Personal Service INDIVIDUALS SERVED: Receptionist (Marcia Compton) at Martson Deardorff Williams Otto Gilroy & Faller for Hubert X GilM Esquire, 10 East High Street, Carlisle PA 17013 Receptionist (Jamie Sandeu) at Saul Ewing LLP for Michael A. Finio, Esquire Penn National Insurance Tower 2 North Second Street, 7`h Floor Harrisburg PA 17101 I declare under the penalty of perjury that the foregoing information contained in the Return of Service is true and correct to the best of my personal knowledge, information and belief. Date Joan C. Shady egal Assist Killi G phart, LLP 218 Pine Street P.O. BOX 886 Harrisburg, PA 17108-0886 Tel: (717) 232-1851 Thomas W. Scott, Esquire PA I.D. 15681 Linda J. Olsen, Esquire PA I. D. 92858 Killian & Gephart, LLP 218 Pine Street P. O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 lolsenAkilliangephart.com tscottakilliangenhart. com ,haul `EwJI) I Amu &(UqdM iz/q/off SG RECEIVED DC MARTSON ,/ aK C't a_ COM? 61?' Robert M. Mumma, II Grantor Retained : IN THE COURT OF COMMON PLEAS Annuity Trust; Robert M. Mumma, H : CUMBERLAND COUNTY PENNSYLVANIA and Susan Mumma, Plaintiffs No. R 7 V. Benedict B. Randolph C rl3 ? ? ca V. trj c--) Fn Pennsy Supply, Inc., f-, 3,,, M' - Defendant co -r_ m • ? V. ao Danny L. Turner, Additional Defendant PRAECIPE FOR LIS PENDENS TO THE PROTHONOTARY: Please index the below-described action for specific performance of a contract for the sale of real property as a lis pendens against the following real property, which property is more particularly described at Cumberland County Deed Book 280, Page 4684, a copy of which is attached hereto as Exhibit "A," and which is known and numbered as: 1607 Industrial Drive Carlisle, Cumberland County, Pennsylvania "Tw I? Thomas W. Scott, Esquire PA I.D. 15681 Linda J. Olsen, Esquire PA I. D. 92858 Killian & Gephart, LLP 218 Pine Street P. O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 lolsen ,killiang_ephart.com tscottn,killiangeuhart.com ROBERT M. MUMMA, II IN THE COURT OF COMMON PLEAS GRANTOR RETAINED ANNUITY CUMBERLAND COUNTY PENNSYLVANIA TRUST; ROBERT M. MUMMA, II AND SUSAN MUMMA, Plaintiffs NO. 08-7187 CIVIL TERM V. BENEDICT B. RANDOLPH V. PENNSY SUPPLY, INC., Defendant V. DANNY L. TURNER, Additional Defendant STATUS REPORT AND REQUEST TO CONTINUE HOLDING PETITION TO STRM LIS PENDENS IN ABEYANCE NOW COMES, the Robert M. Mumma II Grantor Retained Annuity Trust, Robert M. Mumma, II and Susan Mumma, by and through counsel, Thomas W. Scott, Esquire and Killian & Gephart, LLP, and provide this Honorable Court with the following status report concerning related litigation, and sets forth the following: 1. A Praecipe for Lis Pendens was filed in this matter on December 9, 2008 regarding a dispute over the ownership of property located at 1607 Industrial Drive, Carlisle, Cumberland County, Pennsylvania, which is currently the subject of an action pending in the United States District Court for the Middle District of Pennsylvania, docketed at Civil Action No. 98-CV-0087. 2. The Lis Pendens sets forth the nature of the underlying dispute as follows: An action is pending in the United States District Court for the Middle District of Pennsylvania, and is docketed as Civil Action No. 98-CV-0087 titled Motion for an Order Pursuant to Rule 7(b) to Join an Additional Respondent, to Enforce a Settlement Agreement and Stipulation of Dismissal, for Contempt, and to Impose Sanctions. A copy of the Motion is attached hereto as Exhibit "B." Mumma sought to join Danny L. Turner as an Additional Respondent in the foregoing pending action, and on April 3, 2008, The Honorable Sylvia H. Rambo issued an Order joining Danny L. Turner to the pending action. A copy of said Order is attached hereto as Exhibit "C." Following recusal of Judge Rambo and reassignment to The Honorable John E. Jones III, a hearing was held on November 13, 2008. On November 19, 2008, Judge Jones issued a Memorandum and Order granting possession of the 1607 Industrial Road property to Turner and dismissing Turner from the case. A copy of the Memorandum and Order is attached hereto as Exhibit "D." Judge Jones' November 19, 2008 Order is not a final, appealable Order pursuant to F.R.C.P. 54 which provides, in pertinent part, that: [A]ny order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities. F.R.C.P. 54(b). It is the present intention of Mumma to appeal Judge Jones' 2 r? Order granting possession of the property to Turner and dismissing Turner from the case at such time as the Order becomes final and appealable. 3. On December 9, 2008, counsel for Turner filed a Motion to Strike the Lis Pendens based upon the entry of Judge Jones' Order dismissing Turner from the case. 4. On December 11, 2008, a hearing was held before the Honorable Judge Guido at which time the parties were present through counsel and afforded the opportunity to make argument with regard to the Petition to Strike the Lis Pendens. 5. At the conclusion of the December 11, 2008 hearing, the Honorable Judge Guido indicated he would defer making any ruling on the Petition to Strike for 45 days to afford the parties an opportunity to file a motion pursuant to Fed. R. Civ. P. 54(b) asking the United States District Court to certify its November 19, 2008 Order as a final judgment subject to appeal. 6. On January 14, 2009 Pennsy Supply, Inc. filed a Motion to Amend the Order of November 19, 2008 to Certify a Final Judgment as provided in Rule 54(b). A copy of the motion is attached as Appendix "A". 7. Counsel for Turner concurs in the motion; counsel for Mumma opposes the motion. 8. Pennsy Supply's Motion to Certify pursuant to Rule 54(b) is currently pending before the Honorable John E. Jones, III. The briefing schedule will be concluded this week and it is anticipated that Judge Jones will issue an order within a reasonable time thereafter, granting or denying the motion. 9. Without prejudice to the position set forth in Mumma's filed Response to Supplemental Petition to Strike Lis Pendens, that it is improper to strike the lis pendens until such time as a final order has been entered disposing of all claims in the underlying federal court litigation, it is particularly inappropriate for the Court to take any action with respect to the lis pendens until such time as Judge Jones has made a determination whether to certify his decision with regard to Turners' rights to the property as a final appealable order. WHEREFORE, Robert M. Mumma, II, et al., Plaintiffs/Respondents, request this Honorable Court to continue holding the Petition to Strike Lis Pendens in abeyance until such time as Judge Jones has entered an order disposing of the Motion to Amend the Order of November 19, 2008 to Certify Final Judgment for Appeal. RespecAQy submitted > 1. r omas W. Scott, Esquire Attorney I.D. #15681 Linda J. Olsen, Esquire Attorney I.D. #92858 KILLIAN & GEPHART, LLP 218 Pine Street P.O. Box 886 Harrisburg, PA 17108-0886 Tel: (717) 232-1851 Dated: January 26, 2009 Attorneys for Plaintiffs/Respondents, Robert M. Mumma, II Grantor Retained Annuity Trust, Robert M. Mumma, II and Susan Mumma 4 Case 1:98-cv-00087-JEJ Document 173 Filed 01/14/2009 Page 1 of 13 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ROBERT M. MUMMA, II, GRANTOR RETAINED ANNUITY TRUST; No. 98-0087 ROBERT M. MUMMA, II, and SUSAN MUMMA, Judge John E. Jones III Movants, V. BENEDICT B. RANDOLPH, . V. PENNSY SUPPLY, INC., Respondent, V. DANNY L. TURNER, Additional Respondent. FILED ELECTRONICALLY MOTION TO AMEND ORDER OF NOVEMBER 19, 2008 TO CERTIFY FINAL JUDGMENT FOR APPEAL PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 54(b) Pennsy Supply, Inc. ("Pennsy") respectfully requests that this Court amend its November 19, 2008 Memorandum and Order (Doc. No. 162) (the "Order") l 147267.2 1114/09 Case 1:98-cv-00087-JEJ Document 173 Filed 01/14/2009 Page 2 of 13 pursuant to Federal Rule of Civil Procedure 54(b) so as (a) to certify that there is no just reason to delay appeal and (b) to direct the issuance of a judgment reflecting the entry of final judgment. A proposed form of order is attached. The averments supporting this motion are: 1. The Order granted in part and denied in part the "Motion for an Order Pursuant to Rule 7(b) to Join an Additional Respondent, to Enforce Settlement Agreement and Stipulation of Dismissal, for Contempt, and to Impose Sanctions" ("Motion") filed by Robert M. Mumma, H, Grantor Retained Annuity Trust, Robert M. Mumma, II, and Susan Mumma ("Mumma"). 2. In denying the Motion, the Order effectively refused to allow Mumma, pursuant to a right of first refusal for 1607 Industrial Drive, Carlisle (the "Property"), to undo Pennsy's sale of the Property to Danny L. Turner ("Turner") because Turner was determined to be a bona fide purchaser for value who had no notice of the right of first refusal, which Mumma had failed to record. 3. The Order also denied Mumma's request to purchase the Property on terms similar or identical to those contained in the Pennsy-to-Turner transaction. The Order allowed Turner to retain possession of the Property, subject to the terms of his contract with Pennsy, and dismissed Turner from the case. 147267.2 U14/09 2 Case 1:98-cv-00087-JEJ Document 173 Filed 01114/2009 Page 3 of 13 4. The Order further directed the remaining parties, Pennsy and Mumma, to submit initial briefs regarding the measure of damages resulting from Pennsy's breach of the settlement agreement in the underlying litigation. 5. Rule 54(b) provides: When an action presents more than one claim for relief ... or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities. FED. R. Civ. P. 54(b) (emphasis added). 6. Accordingly, to be considered a final, appealable order, Rule 54(b) requires (a) a specific, express finding that there is no just reason for delaying an appeal, and also (b) a specific, express direction by the Court for the Clerk of Court to enter a final judgment. Appellate courts also instruct that it is a "best practice" for district courts to include an explanation of the court's decision to certify a judgment for appeal. Carter v. City of Philadelphia, 181 F.3d 339, 346 (3d Cir. 1999). 7. In determining whether there is "no just reason for delay," courts consider the following five factors: 1474672 1,14M 3 Case 1:98-cv-00087-JEJ Document 173 Filed 01/14/2009 Page 4 of 13 / (1) the presence or absence of a claim or counterclaim which could result in a set-off against the judgment sought to be made final; (2) the relationship between the adjudicated and unadjudicated claims; (3) the possibility that the need for review might or might not be mooted by future developments in the district court; (4) the possibility that the reviewing court might be obliged to consider the same issue a second time; and (5) miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like. Waldorf v. Shuta, 142 F.3d 601, 609 (3d Cir. 1998) (quoting Waldorf v. Borough of Kenilworth, 959 F. Supp. 675, 679 (D.N.J. 1997)). 8. Pennsy and Mumma each filed an opening brief on the measure of damages on December 12, 2008 (Doc. Nos. 168 & 169). Mumma's brief clearly stated that he "is not waiving any appeal rights he may have at such time as this Court enters a judgment adjudicating all the claims and all the parties' rights and liabilities as contemplated by F.R.C.P. 54(b)" related to Turner's retention of the Property, the validity of the deed restriction, and Turner's dismissal from the case. Doc. No. 169 at 2 n.1. 9. Mumma also argues that the appropriate measure of damages is his expectation interest regarding the future operation of a concrete plant on the Property. Id. at 5. Mumma believes that the deed "restriction would not have been effective to limit Mumma's right to utilize the Property" as a concrete plant. Id. at 16. 147267.2 1/14M 4 Case 1:98-cv-00087-JEJ Document 173 Filed 01/14/2009 Page 5 of 13 10. The Order allowing Turner to retain the Property subject to the terms of the Pennsy-Turner contract can only also be read to expressly uphold the deed restriction prohibiting use of the Property as a concrete plant, since Turner is bound by the terms of his contract with Pennsy. That issue was squarely before the Court at the initial "liability" stage of this bifurcated proceeding and was fully briefed prior to September 19, 2008, when this Court certified its familiarity with the record under Fed. R. Civ. P. 63. Therefore, if the damages portion of this case proceeds now, the deed restriction is presumptively valid and Mumma's arguments arising from his view of its invalidity are irrelevant as to the measure of damages. In other words, the deed restriction must also be presumed valid as to him and a measure of damages based on what it prohibits would be improper. 11. There is no just reason for delaying the appeal of the Order. Mumma clearly intends to appeal the Order whenever this Court certifies its finality under Rule 54(b). Given that the law of the case makes his current view of the measure of damages improper, it is clear that an appeal now would advance a more efficient resolution of all issues. The other option would be to rule now that only nominal damages are proper, and enter a more comprehensive order that allows Mumma to file an appeal which reflects his full legal theory as to liability and damages and pursue it in a more efficient manner. 147267.2 V14M 5 Case 1:98-cv-00087-JEJ Document 173 Filed 01/14/2009 Page 6 of 13 12. An immediate appeal of the Order would also be appropriate considering Turner's current position. While the Court has awarded him title to and possession of the Property, the prospect of an appeal by Mumma clearly prejudices Turner's complete use and enjoyment of the Property, because the decision granting him the Property will not truly be final until either (a) the entry of a final judgment is made and is not appealed, or, (b) the entry of a final judgment is made and on appeal the Third. Circuit affirms it, and (c) the time for certiorari passes, or is denied, etc. Until then Turner cannot improve or develop the Property with absolute certainty that it will remain his. To try to sever all ties with Mumma, Turner filed a motion in the Cumberland County Court of Common Pleas to strike off both lis pendens filed by Mumma related to the Property. Following argument on December 11, 2008, Judge Edward E. Guido indicated that he would strike off both Us pendens if Mumma did not appeal the Order to the Third Circuit; the Cumberland County Court's Order recognizes the prejudice to Turner in the absence of an appeal by Mumma. Mumma has until January 26, 2009, to appeal the Order or Judge Guido will strike off the Us pendens. That relief, however, will not determine the ultimate issue in this Court. There cannot be a truly final determination of damages until there is a final determination on Turner's right to keep the Property. 147267.2 1/1409 6 Case 1:98-cv-00087-JEJ Document 173 Filed 01/14/2009 Page 7 of 13 13. If the current phase of this litigation proceeds without Rule 54(b) certification, discovery is necessary and proof of Mumma's damages at this stage requires the parties and Court to assume the Order will stand. 14. Absent Rule 54(b) certification now, if this Court hears evidence on the damages issue and enters an order accordingly, that order and the November 19 Order will become appealable as of right. On appeal of the "whole case," the Third Circuit would have before it at least these issues: (1) whether it was right to let Turner keep the Property, (2) whether, if the answer to (1) is "yes, the deed restriction was validly imposed, (3) whether, if the answer to (1) is "no," Mumma should get the Property with or without the deed restriction, (4) whether the damages awarded to Mumma, if any, were proper, and (5) if Turner does not keep the Property, whether he is entitled to damages. If the Third Circuit answers "no" to issue (2), this case will most likely be back before this Court for purposes of reassessing (4) and assessing (5) for the first time. Moreover, if the Third Circuit says "no" to issue (1), arguably the entire matter will have to be relitigated in this Court. 15. Therefore, if the Order is not certified, this Court faces the possibility of conducting two trials on damages attributable to Pennsy's breach of the settlement agreement because both allowing Turner to keep the Property and upholding the deed restriction are critical elements of the manner in which gny 147267,2 V14M 7 Case 1:98-cv-00087-JEJ Document 173 Filed 01/14/2009 Page 8 of 13 damages calculus in this case must be done.' An appeal now of the Order will allow greater certainty in establishing that damages calculus with respect to the interests of all parties, which certainly benefits both the Court and all parties. 16. In conjunction with the preparation for two trials, Pennsy and Mumma face the harsh, costly, time-consuming, and wasteful result of conducting discovery twice, preparing for trial twice, and participating in two trials. 17. Delay in entering a final judgment as to Turner would undermine the federal judiciary's interest in conserving its valuable judicial resources by raising the specter of two separate trials. 18. Examination of the five factors recited by the Waldorf court shows that no just reason for delay exists because: a. this case involves no claim or counterclaim which could result in a set-off against the judgment sought to be made final; b. the adjudicated issues (Turner's status as a bona fide purchaser and the validity of the deed restriction) and unadjudicated issue (damages 1 While the issues of Turner's right to keep the Property and the validity of the deed restriction are critical to how the damages analysis will proceed, those issues are also legally and factually separable from the damages analysis. Thus, the Third Circuit can review those two issues independent of the damages issue upon Rule 54(b) certification. 147267.2 1/14.09 8 Case 1:98-cv-00087-JEJ Document 173 Filed 01/14/2009 Page 9 of 13 attributable to Pennsy's breach of the 2000 settlement agreement) are independent and separable of each other for the purpose of appellate review;2 C. it is unlikely that the need for review will be mooted by future developments in the district court; d. it is highly unlikely that the reviewing court will have to consider the same issue a second time; and e. certification to the Third Circuit will eliminate the need for two trials on damages, reduce the expense of preparing for two trials, and result in the most efficient use of judicial resources. 19. District courts may stay proceedings pending appeal after Rule 54(b) certification. See e.g., Instructional Sys., Inc. v. Computer Curriculum Corp., 35 F.3d 813, 818 n.8 (3d Cir. 1994). 20. Given the relationship between the validity of the deed restriction and Turner's status as a bona fide purchaser for purposes of the damages analysis, a stay is appropriate while the Third Circuit hears the appeal or the thirty-day period during which Mumma could appeal passes. 2 As noted above, the ultimate resolution of the adjudicated issues will have a great impact on the measure of damages attributable to Pennsy's breach of the settlement agreement, but the adjudicated issues remain legally distinct and easily reviewable by the Third Circuit without regard to any damages analysis. 1472671 1114M 9 Case 1:98-cv-00087-JEJ Document 173 Filed 01/14/2009 Page 10 of 13 21. Pennsy respectfully requests that this Court amend the Order by adding the following new paragraphs 5, 6, 7, and 8: 5. For the reasons set forth in Pennsy's Motion to Amend to Certify Final Judgment for Appeal Pursuant to Federal Rule of Civil Procedure 54(b), there exists no just reason to delay appeal of this Order Denying Mumma's request to exercise his right of first refusal against Turner, Denying Mumma's request to purchase the Carlisle Property on terms similar or identical to those conditioned upon Turner, and Ordering that Turner shall retain possession of the Carlisle Property subject to the terms of his contract with Pennsy. 6. No just reason to delay appeal exists because (1) this case involves no claim or counterclaim which could result in a set-off against the judgment sought to be made final; (2) the adjudicated issues and unadjudicated issue are independent and separable of each other for the purpose of appellate review; (3) it is unlikely that the need for review will be mooted by future developments before this Court; (4) it is highly unlikely that the reviewing court will have to consider the same issues a second time; and (5) certification will eliminate the need for two trials on damages, reduce the expense of preparing for two trials, and result in the most efficient use of judicial resources. 7. The Clerk of Court is hereby DIRECTED to issue a Judgment entering final judgment in conformity with Federal Rule of Civil Procedure 54(b). 8. Proceedings in this matter are STAYED pending the outcome of Mumma's appeal of the Order or the expiration of the thirty-day time period during which Mumma may file his Notice of Appeal, whichever is later. 147267.2 V14/09 10 Case 1:98-cv-00087-JEJ Document 173 Filed 01/14/2009 Page l l of 13 WHEREFORE, Pennsy respectfully requests that this Honorable Court amend its Order of November 19, 2008 in conformity with Federal Rule of Civil Procedure 54(b) in order to certify that there is no just reason to delay appeal and to direct the issuance of a Judgment reflecting the entry of final judgment in favor of Turner. Respectfully submitted, /s/ Michael A. Finio Michael A. Finio, Esquire Matthew M. Haar, Esquire Emily H. Damron, Esquire Saul Ewing LLP 2 North Second Street, 7th Floor Harrisburg, PA 17101 Phone: (717) 257-7576 Date: January 14, 2009 Attorneys for Respondent Pennsy Supply, Inc. 147267.2 1114M 11 Case 1:98-cv-00087-JEJ Document 173 Filed 01/14/2009 Page 12 of 13 CERTIFICATE OF CONCURRENCE I, Matthew M. Haar, Esquire, counsel for Pennsy Supply, Inc., hereby certify that I contacted counsel for Robert M. Mumma, II, Grantor Retained Annuity Trust, Robert M. Mumma, II, and Susan Mumma ("Mumma") and counsel for Danny L. Turner ("Turner") to seek their concurrence in the foregoing Motion. Counsel for Turner concurs in the Motion. Counsel for Mumma opposes the Motion. /s/ Matthew M. Haar Matthew M. Haar, Esquire Dated: January 14, 2009 147M.2 1/14M 12 Case 1:98-cv-00087-JEJ Document 173 Filed 01/14/2009 Page 13 of 13 CERTIFICATE OF SERVICE I hereby certify that on this date, I served a true and correct copy of the foregoing Motion to Amend Order of November 19, 2008 to Certify Final Judgment for Appeal Pursuant to Federal Rule of Civil Procedure 54(b) upon the following counsel of record via electronic filing: Thomas W. Scott, Esquire Linda J. Olsen, Esquire Killian & Gephart, LLP 218 Pine Street PO Box 886 Harrisburg, PA 17109 Attorneys for Plaintiffs Hubert X. Gilroy, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17103 Attorneys for Danny L. Turner /s/ Emily H. Damron Emily H. Damron Dated: January 14, 2009 14M7.2 1,14M 13 ,1 Case 1:98-cv-00087-JEJ Document 173-2 Filed 01/14/2009 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ROBERT M. MUMMA, II, GRANTOR RETAINED ANNUITY TRUST; No. 98-0087 ROBERT M. MUMMA, II, and SUSAN MUMMA, Judge John E. Jones III Movants, V. BENEDICT B. RANDOLPH, V. PENNSY SUPPLY, INC., . Respondent, V. DANNY L. TURNER, Additional Respondent. FILED ELECTRONICALLY ORDER AMENDING NOVEMBER 19, 2008, ORDER IN ACCORDANCE WITH FED. R. CIV. P. 54fb1 AND NOW, this day of , 2009, upon consideration of the Motion to Amend Order of November 19, 2008, to Certify Final Judgment for Appeal Pursuant to Federal Rule of Civil Procedure 54(b), and any responses thereto, it is HEREBY ORDERED that the Motion is GRANTED. In conformity with Federal Rule of Civil Procedure 54(b), the Court's Order of November 19, 2008, in this action is hereby AMENDED to include the following certification in the form of additional paragraphs 5, 6, 7, and 8: Case 1:98-cv-00087-JEJ Document 173-2 Filed 01/14/2009 Page 2 of 2 5. For the reasons set forth in Pennsy's Motion to Amend to Certify Partial Final Judgment for Appeal Pursuant to Federal Rule of Civil Procedure 54(b), there exists no just reason to delay appeal of this Order Denying Mumma's request to exercise his right of first refusal against Turner, Denying Mumma's request to purchase the Carlisle Property on terms similar or identical to those conditioned upon Turner, and Ordering that Turner shall retain possession of the Carlisle Property subject to the terms of his contract with Pennsy. 6. No just reason to delay appeal exists because (1) this case involves no claim or counterclaim which could result in a set-off against the judgment sought to be made final; (2) the adjudicated issues and unadjudicated issue are independent and separable of each other for the purpose of appellate review; (3) it is unlikely that the need for review will be mooted by future developments before this Court; (4) it is highly unlikely that the reviewing court will have to consider the same issues a second time; and (5) certification will eliminate the need for two trials on damages, reduce the expense of preparing for two trials, and result in the most efficient use of judicial resources. 7. The Clerk of Court is hereby DIRECTED to issue a Judgment entering final judgment in conformity with Federal Rule of Civil Procedure 54(b). 8. Proceedings in this matter are STAYED pending the outcome of Mumma's appeal of the Order or the expiration of the thirty-day time period during which Mumma may file his Notice of Appeal, whichever is later. SO ORDERED. BY THE COURT: The Honorable John E. Jones, III CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date, a copy of the foregoing document has been served on counsel of record addressed as follows and in the manner indicated: By Hand Delivery Hubert X. Gilroy, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 By First Class Mail, Postage Prepaid Michael A. Finio, Esquire Matthew Haar, Esquire Saul Ewing, LLP Penn National Insurance Tower 2 North Second Street, 7th Floor Harrisburg, PA 17101 Thomas W. Scott, Esquire KILLIAN & GEPHART, LLP 218 Pine Street P.O. Box 886 Harrisburg, PA 17108-0886 Dated: January 26, 2009 `? :°::? ,, -; a - ; - . . ? { , Sy _A L^! -.. _' ..? V ? Anil .? JAN 2 7 2009 3 ROBERT M. MUMMA, II GRANTOR RETAINED ANNUITY TRUST; ROBERT M. MUMMA, II AND SUSAN MUMMA, Plaintiffs, V. BENEDICT B. RANDOLPH V. PENNSY SUPPLY, INC., Defendant, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-7187 CIVIL TERM V. DANNY L. TURNER, : Additional Defendant. ORDER OF COURT AND NOW, this day of 2009, upon consideration of the Supplemental Petition to Strike Lis Pendens, the response thereto, argument of counsel, and the Status Report filed by Plaintiffs/Respondents, further action on this matter is continued until such time as the Honorable Judge John E. Jones, III, United States District Court for the Middle District of Pennsylvania, has ruled upon the pending Motion to Amend Order of November 19, 2008 to Certify Final Judgment for Appeal Pursuant to Federal Rule of Civil Procedure 54(b) filed in the related case of Mumma v. Randloph, Pennsy Supply and Danny L. Turner, No. 98- 0087, U.S.D.C.M.D. Pa. Plaintiffs are directed to file a further status report with this Court, with service upon all counsel, within 10 days of the entry of an Order by Judge Jones disposing of the aforesaid motion, or sixty (60) days after the date of this Order, whichever comes first. BY E. Guido, Judge Distribution: Thomas W. Scott, Esquire Killian & Gephart, LLP, 218 Pine Street, PO Box 886, Harrisburg, PA 17108-0886 Hubert X. Gilroy, Esquire / Martson Law Offices, 10 East High Street, Carlisle, PA 17013 ? chael A, Finio, Esquire ..ew Haar, Esquire Saul Ewing, LLP, Penn National Insurance Tower, 2 No. Second St., 7* Fl., Harrisburg, PA 17101 ter m.-,,LccL 1/;LQ/a? ?::Dq 2 0 U :Z 14d 6Z r 6GOz n 11; A' ---'Hi 10 F:\FILES\Clients\7436 Tumer Hydraulics\7436.43.Motion2Strike3A Created: 9/20/04 0;06PM Revised 2/17/09 1029AM Hubert X. Gilroy, Esquire Attorney I.D. No. 29943 Katie J. Maxwell, Esquire Attorney I.D. No. 206018 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Petitioner Danny L. Turner ROBERT M. MUMMA, II : IN THE COURT OF COMMON PLEAS OF GRANTOR RETAINED ANNUITY CUMBERLAND COUNTY, PENNSYLVANIA TRUST; ROBERT M. MUMMA, II and SUSAN MUMMA, NO. 2008- 7187 CIVIL CIVIL ACTION - LAW V. BENEDICT B. RANDOLPH, V. PENNSY SUPPLY, IN., Defendant V. DANNY L. TURNER, Additional Defendant MOTION TO STRIKE LIS PENDENS Danny L. Turner, by and through his attorneys, MARTSON LAW OFFICES, sets forth the following: 1. Danny L. Turner (Turner) filed a Motion to Strike the Lis Pendens issued in the above captioned action. 2. A hearing was held on the Petition of Turner on December 11, 2008. 3. At the end of the hearing, The Honorable Judge Guido indicated that he would strike the lis pendens unless an appeal of the underlying federal action was filed within forty-five days. 4. By Order of January 29, 2009, this Court continued further action on the Motion to Strike the Lis Pendens pending action by the Federal Court on a Motion to Certify the Final Judgment for Appeal to the Third Circuit Court of Appeals, filed by Pennsy Supply, Inc.. 5. By Order of February 10, 2009, the Honorable John E. Jones, III, denied the Motion of Pennsy Supply, Inc for certification pursuant to Federal Rule of Civil Procedure 54(b) and directed that counsel for Pennsy and Mumma engage in a telephone conference for purposes if proceeding with a discovery schedule on the damage issue in Federal Court. Attached hereto and marked Exhibit `A' is a copy of said Order. 6. Petitioner Turner again renews his Motion to Strike the Lis Pendens and, consistent with the Court's directive at the end of the December 11, 2008 hearing and Petitioner requests the Court to Strike the Lis Pendens in the above action based upon the failure of any appeal being filed in the Federal action. WHEREFORE, Danny L. Turner requests your Honorable Court Strike the lis pendens filed in the above action. Respectfully Submitted, MARTSON LAW OFFICES A Air G Hubert X. roy, Esquire Attorne D. No. 29943 Katie J. Maxwell, Esquire Attorney I.D. No. 206018 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date: February 12 , 2009 Attorneys for Petitioner Danny L. Turner Case 1:98-cv-00087-JEJ Document 179 Filed 02/10/2009 Page 1 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ROBERT M. MUMMA, II, GRANTOR RETAINED ANNUITY TRUST; ROBERT M. MUMMA, II, and ; SUSAN MUMMA Movants, , v. BENEDICT B. RANDOLPH V. PENNSY SUPPLY, INC., , Respondent, V. DANNY L. TURNER, Additional Respondent. Civil No. 98-cv-0087 Judge John E. Jones III MEMORANDUM AND ORDER February 10, 2009 THE BACKGROUND OF THIS ORDER IS AS FOLLOWS: On November 19, 2008, we entered an Order granting in part and denying in part the Motion of Movant Robert M. Mumma ("Mumma") to enforce a 1998 I EXHIBIT Case 1:98-cv-00087-JEJ Document 179 Filed 02/10/2009 Page 2 of 5 settlement agreement he entered into with Respondent Pennsy Supply, Inc. ("Pennsy"). (Rec. Doc. 162). In short, the settlement agreement provided for, in r alia, the sale of the Carlisle Property to Pennsy and vested in Mumma a first right of refusal should Pennsy choose to sell the property in the future. In our Order of November 19, 2008, we determined that Pennsy breached the settlement agreement by selling the Carlisle Property to Danny L. Turner, a good faith purchaser, without honoring Mumma's first right of refusal.2 At that time, we declined to pass judgment regarding the amount of damages flowing from Pennsy to Mumma; rather, we ordered briefing on that subject, which has been received. On January 14, 2009, Pennsy filed a self-styled "Motion to Amend Order of November 19, 2008 to Certify Final Judgment for Appeal Pursuant to Federal Rule of Civil Procedure 54(b) (the "Motion"). (Rec. Doc. 173). Having been briefed, this Motion is ripe for disposition. DISCUSSION: Essentially, Pennsy implores us to employ the dictates of Federal Rule of ' The settlement agreement involved the present and future disposition of a piece of land in Carlisle (the "Carlisle property" or "Property") that was used for manufacturing concrete. 2 We determined that, as a good faith purchaser for value, Turner was entitled to retain possession of the Carlisle Property under the terms of the Pennsy-Turner contract, which included a restrictive covenant prohibiting the operation of a cement plant on said the Carlisle Property. We further held that Pennsy would be liable to Mumma for breaching the 1998 settlement agreement, but as noted left the precise measure of damages for another day. Case 1:98-cv-00087-JEJ Document 179 Filed 02/10/2009 Page 3 of 5 Civil Procedure 54(b) ("Rule 54") to certify our November 19, 2008 Order as final as to Turner, thereby validating the restrictive covenant, and leave remaining any possible appeal by Pennsy or Mumma as to damages after that portion of the proceedings has been completed. While Pennsy's Motion is creative and perhaps facially alluring, for the reasons that follow, it will be denied. Federal Rule of Civil Procedure 54(b) provides that when an action presents more than one claim for relief or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all claims or parties "only if the court expressly determines that there is no just reason for delay." Fed. R. Civ. P. 54(b). Thus, to certify an order pursuant to Rule 54(b), "the judgment must be final and there must be no just reason for delay in entering the final judgment." Aaldorf v. Shula, 142 F.3d 601 (3d Cir. 1998). The Third Circuit Court of Appeals has held that "[a] district court may direct the entry of a final judgment pursuant to Rule 54 only when a distinct claim is fully adjudicated." DeJohn v. TemplC Univ rsit, 537 F.3d 301, 307 (3d Cir. 2008) (holding that claims are not fully adjudicated when the request for damages is not yet determined). Indeed, "[W]here liability has been decided but the extent of damages remains undetermined, there is no final order." Sun Shipbuilding & Dry Dock Co v Benefits Review Bd, 535 F.2d 758, 760 (3d Cir. 1976). Case 1:98-cv-00087-JEJ Document 179 Filed 02/10/2009 Page 4 of 5 In light of the foregoing appellate precedent, we will deny the instant Motion since our Order of November 19, 2009 did not determine the amount of damages, meaning that it cannot constitute a "final judgment."' Having disposed of the Motion, we will now proceed to the damages portion of the litigation. Mumma has indicated that discovery would aid in the precise determination of damages and therefore, we will schedule a telephonic conference to discuss this issue, as well as to generally chart a firm course that will lead to an orderly conclusion to this matter. NOW, THEREFORE, IT IS ORDERED THAT: 1. Pennsy's Motion for Certification Pursuant to Federal Rule of Civil Procedure 54(b) (Rec. Doc. 173) is DENIED. 2. A telephonic conference between the Court and all counsel shall be held on February 24, 2009 at 1:30 p.m. Counsel should be prepared to discuss the opening of discovery in aid of determining damages and all other issues relative to the commencement of a hearing regarding same. Counsel for Mumma shall initiate the call. The Court's phone 3 Since we have determined that our Order of November 19, 2008 was not a "final judgment," thereby resolving the instant Motion on that basis, we decline to consider the factors enunciated in Waldorf v. Shuta, 142 F.3d 601, 609 (3d Cir. 1998) for determining whether there is a "just reason" for delaying certification. 4 Case 1:98-cv-00087-JEJ Document 179 Filed 02/10/2009 Page 5 of 5 number is 717-221-3986. J n .J Aes I U ' Sta istrict Judge F-\FILES\Clients\7436 Turner Hydraulics\7436.43.CertOfServ3 Created. 9/20/04 0.06PM Revised 2/17/09 10.36AM 7436 43 Hubert X. Gilroy, Esquire PA I.D. 29943 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 hp-ilroy2martsonlaw com Attorneys for Danny L. Turner KUBERTM. MUMMA, II IN THE COURT OF COMMON PLEAS OF GRANTOR RETAINED ANNUITY CUMBERLAND COUNTY, PENNSYLVANIA TRUST; ROBERT M. MUMMA, II and SUSAN MUMMA, NO. 2008- 7187 CIVIL CIVIL ACTION - LAW V. BENEDICT B. RANDOLPH, V. PENNSY SUPPLY, IN., ; Defendant : V. DANNY L. TURNER, Additional Defendant CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of a Hearing Memorandum of Danny L. Turner upon the following by electronic mail as follows on January 27, 2009: Thomas W. Scott, Esquire KILLIAN & GEPHART, LLP 218 Pine Street, P.O. Box 886 Harrisburg, PA 17108 tscott<a,,killiamz Phart.com Counsel for Movants Michael A. Finio, Esquire Matthew M. Haar, Esquire SAUL EWING, LLP Penn National Insurance Tower 2 North Second Street, 7`h Floor Harrisburg, PA 17101 mfinionsaul.com mhaar(a)saul.com Counsel for Pennsy Supply, Inc. MARTSON LAW OFFICES Hubert X. Gil; y, Esquire 10 East Hig Street Carlisle, P 17013 (717) 243-3341 Dated: February V7 , 2009 rD ?a Thomas W. Scott, Esquire PA I.D. 15681 Linda J. Olsen, Esquire PA I. D. 92858 Killian & Gephart, LLP 218 Pine Street P. O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 lolsen"lliang_ephart.com tscottf&killiamephart.com ROBERT M. MUMMA, H IN THE COURT OF COMMON PLEAS GRANTOR RETAINED ANNUITY CUMBERLAND COUNTY PENNSYLVANIA TRUST; ROBERT M. MUMMA, II AND SUSAN MUMMA, Plaintiffs NO. 08-7187 CIVIL TERM V. BENEDICT B. RANDOLPH V. PENNSY SUPPLY, INC., Defendant V. DANNY L. TURNER, Additional Defendant STATUS REPORT AND REQUEST TO CONTINUE HOLDING PETITION TO STRIKE LIS PENDENS IN ABEYANCE NOW COMES, the Robert M. Mumma II Grantor Retained Annuity Trust, Robert M. Mumma, II and Susan Mumma, by and through counsel, Thomas W. Scott, Esquire and Killian & Gephart, LLP, and provides this Honorable Court with the following status report concerning related litigation, and in support thereof sets forth the following: 1. A Praecipe for Lis Pendens was filed in this matter on December 9, 2008 regarding a dispute over the ownership of property located at 1607 Industrial Drive, Carlisle, Cumberland County, Pennsylvania, which is currently the subject of an action pending in the United States District Court for the Middle District of Pennsylvania, docketed at Civil Action No. 98-CV-0087. 2. On January 14, 2009 Pennsy Supply, Inc. filed a Motion to Amend the Order of November 19, 2008 to Certify a Final Judgment as provided in Rule 54(b). 3. On January 26, 2009, Plaintiffs filed a Status Report and Request to Hold Lis Pendens in Abeyance. A copy of Penny's Rule 54(b) motion was attached to that Status Report as Appendix "A." 4. On January 29, 2009, the Honorable Judge Guido issued an Order directing Plaintiffs to file a supplemental status report within ten days of the entry of an Order by Judge Jones disposing of Penny's Rule 54(b) Motion. 5. On February 10, 2009, Judge Jones issued a Memorandum and Order denying Penny's request to certify his November 19, 2009 Order as final and scheduling a telephone conference call between Judge Jones and all counsel on February 24, 2009 at 1:30 p.m. A copy of the aforesaid Order is attached hereto as Exhibit "A." 6. On February 17, 2009, counsel for Danny L. Turner filed a renewed Motion to Strike Lis Pendens. 2 WHEREFORE, Robert M. Mumma, II, et al., Plaintiffs/Respondents, request this Honorable Court to deny the renewed Motion to Strike Lis Pendens and continue holding the Petition to Strike Lis Pendens in abeyance until such time as a Final Order in the federal court has been issued by Judge Jones. Respectfully submitted /Iz? -- AL-" Thomas Scott, Es ire Attorney I.D. #15681 Linda J. Olsen, Esquire Attorney I.D. #92858 KILLIAN & GEPHART, LLP 218 Pine Street P.O. Box 886 Harrisburg, PA 17108-0886 Tel: (717) 232-1851 Dated: February 20, 2009 Attorneys for Plaintiffs/Respondents, Robert M. Mumma, II Grantor Retained Annuity Trust, Robert M. Mumma, 11 and Susan Mumma Case 1:98-cv-00087-JEJ Document 179 Filed 02/10/2009 Page 1 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ROBERT M. MUMMA, II, GRANTOR RETAINED ANNUITY TRUST; ROBERT M. MUMMA, II, and SUSAN MUMMA Movants, , v. - BENEDICT B. RANDOLPH V. PENNSY SUPPLY, INC., Respondent, V. DANNY L. TURNER, . Additional Respondent. Civil No. 98-cv-0087 Judge John E. Jones III MEMORANDUM AND ORDER February 10, 2009 THE BACKGROUND OF THIS ORDER IS AS FOLLOWS: On November 19, 2008, we entered an Order granting in part and denying in part the Motion of Movant Robert M. Mumma ("Mumma") to enforce a 1998 1 Case 1:98-cv-00087-JEJ Document 179 Filed 02/10/2009 Page 2 of 5 settlement agreement he entered into with Respondent Pennsy Supply, Inc.' ("Pennsy"). (Rec. Doc. 162). In short, the settlement agreement provided for, i .fir Lli?, the sale of the Carlisle Property to Pennsy and vested in Mumma a first right of refusal should Pennsy choose to sell the property in the future. In our Order of November 19, 2008, we determined that Pennsy breached the settlement agreement by selling the Carlisle Property to Danny L. Turner, a good faith purchaser, without honoring Mumma's first right of refusal? At that time, we declined to pass judgment regarding the amount of damages flowing from Pennsy to Mumma; rather, we ordered briefing on that subject, which has been received. On January 14, 2009, Pennsy filed a self-styled "Motion to Amend Order of November 19, 2008 to Certify Final Judgment for Appeal Pursuant to Federal Rule of Civil Procedure 54(b) (the "Motion"). (Rec. Doc. 173). Having been briefed, this Motion is ripe for disposition. DISCUSSION: Essentially, Pennsy implores us to employ the dictates of Federal Rule of The settlement agreement involved the present and future disposition of a piece of land in Carlisle (the "Carlisle property" or "Property"J that was used for manufacturing concrete. 2 We determined that, as a good faith purchaser for value, Turner was entitled to retain possession of the Carlisle Property under the terms of the Pennsy-Turner contract, which included a restrictive covenant prohibiting the operation of a cement plant on said the Carlisle Property. We further held that Pennsy would be liable to Mumma for breaching the 1998 settlement agreement, but as noted left the precise measure of damages for another day. 2 Case 1:98-cv-00087-JEJ Document 179 Filed 02/10/2009 Page 3 of 5 Civil Procedure 54(b) ("Rule 54") to certify our November 19, 2008 Order as final as to Turner, thereby validating the restrictive covenant, and leave remaining any possible appeal by Pennsy or Mumma as to damages after that portion of the proceedings has been completed. While Pennsy's Motion is creative and perhaps facially alluring, for the reasons that follow, it will be denied. Federal Rule of Civil Procedure 54(b) provides that when an action presents more than one claim for relief or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all claims or parties "only if the court expressly determines that there is no just reason for delay." Fed. R. Civ. P. 54(b). Thus, to certify an order pursuant to Rule 54(b), "the judgment must be final and there must be no just reason for delay in entering the final judgment." Waldorf v. Shuta, 142 F.3d 601 (3d Cir. 1998). The Third Circuit Court of Appeals has held that "[a] district court may direct the entry of a final judgment pursuant to Rule 54 only when a distinct claim is fully adjudicated." DeJrohn v. Tempe University, 537 F.3d 301, 307 (3d Cir. 2008) (holding that claims are not fully adjudicated when the request for damages is not yet determined). Indeed, "[W]here liability has been decided but the extent of damages remains undetermined, there is no final order." Sun Shipbuilding & Drv Dock Co, v. Benefits Review Bd., 535 F.2d 758, 760 (3d Cir. 1976). Case 1:98-cv-00087-JEJ Document 179 Filed 02/10/2009 Page 4 of 5 In light of the foregoing appellate precedent, we will deny the instant Motion since our Order of November 19, 2009 did not determine the amount of damages, meaning that it cannot constitute a "final judgment."' Having disposed of the Motion, we will now proceed to the damages portion of the litigation. Mumma has indicated that discovery would aid in the precise determination of damages and therefore, we will schedule a telephonic conference to discuss this issue, as well as to generally chart a firm course that will lead to an orderly conclusion to this matter. NOW9 THEREFORE, IT IS ORDERED THAT: 1. Pennsy's Motion for Certification Pursuant to Federal Rule of Civil Procedure 54(b) (Rec. Doc. 173) is DENIED. 2. A telephonic conference between the Court and all counsel shall be held on February 24, 2009 at 1:30 p.m. Counsel should be prepared to discuss the opening of discovery in aid of determining damages and all other issues relative to the commencement of a hearing regarding same. Counsel for Mumma shall initiate the call. The Court's phone ' Since we have determined that our Order of November 19, 2008 was not a "final judgment," thereby resolving the instant Motion on that basis, we decline to consider the factors enunciated in Waldorf v. Shuta. 142 F.3d 601, 609 (3d Cir. 1998) for determining whether there is a "just reason" for delaying certification. 4 Case 1:98-cv-00087-JEJ Document 179 Filed 02/10/2009 Page 5 of 5 number is 717-221-3986. J n .J es I , U ' Sta istrict Judge CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date, a copy of the foregoing document has been served on counsel of record addressed as follows and in the manner indicated: By U. S. Mail and Hand Delivery Hubert X. Gilroy, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 By First Class Mail, Postage Prepaid Michael A. Finio, Esquire Matthew Haar, Esquire Saul Ewing, LLP Penn National Insurance Tower 2 North Second Street, 7th Floor Harrisburg, PA 17101 Thomas W. Scott, Esquire KILLIAN & GEPHART, LLP 218 Pine Street P.O. Box 886 Harrisburg, PA 17108-0886 Dated: February 20, 2009 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date, a copy of the foregoing document has been served on counsel of record addressed as follows and in the manner indicated: By U.S. Mail and Hand Delivery Hubert X. Gilroy, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 By First Class Mail, Postage Prepaid Michael A. Finio, Esquire Matthew Haar, Esquire Saul Ewing, LLP Penn National Insurance Tower 2 North Second Street, 7th Floor Harrisburg, PA 17101 Linda J. O sen, Esq ' KILLIAN & GEPHART, LLP 218 Pine Street P.O. Box 886 Harrisburg, PA 17108-0886 Dated: February 20, 2009 o sLJ i'i i?j ti Thomas W. Scott, Esquire PA I.D. 15681 Linda J. Olsen, Esquire PA I. D. 92858 Killian & Gephart, LLP 218 Pine Street P. O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 lolsennakilliangephart.com tsco killiangephart.com ROBERT M. MUMMA, R GRANTOR RETAINED ANNUITY TRUST; ROBERT M. MUMMA, II AND SUSAN MUMMA, Plaintiffs V. BENEDICT B. RANDOLPH V. PENNSY SUPPLY, INC., Defendant V. DANNY L. TURNER, Additional Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA NO. 08-7187 CIVIL TERM PLAINTIFFS' RESPONSE TO ADDITIONAL DEFENDANT DANNY L. TURNER'S MOTION TO STRIKE LIS PENDENS NOW COMES, the Robert M. Mumma II Grantor Retained Annuity Trust, Robert M. Mumma, II and Susan Mumma ("Mumma"), by and through counsel, Thomas W. Scott, Esquire and Killian & Gephart, LLP, and responds to the Motion to Strike Lis Pendens filed on behalf of Additional Defendant Danny L. Turner ("Turner") on February 17, 2009, and in support thereof, sets forth the following: 1. Admitted. It is admitted that Turner filed a Motion to Strike the Las Pendens issued in the within captioned action. 2. Admitted. It is admitted that a hearing was held before Judge Guido on December 11, 2008. 3. Admitted. By way of further response, Judge Guido indicated that he would strike the Us pendens unless there was some action by the parties in the federal litigation to have the November 19, 2008 Order of Judge Jones certified as final, thereby triggering the period for appeal. 4. Admitted. 5. Admitted. 6. Admitted in part. It is admitted that Turner has filed a renewed Motion to Strike Lis Pendens. By way of further response, Plaintiffs do not believe that this Court's December 11, 2008 verbal directive that it would strike the Us pendens unless an appeal was taken within forty-five (45) days was intended to require Plaintiffs to file an improper and untimely appeal in contravention of the Federal Rules of Civil and Appellate Procedure regarding the timeliness of an appeal where no final order has been issued. 7. The Federal Rules of Civil and Appellate Procedure provide that an appeal can be taken only with respect to a final order. 2 8. By virtue of Judge Jones' February 10, 2009 Memorandum and Order, there is no final order that can be appealed by any party to the federal litigation. WHEREFORE, Robert M. Mumma, II, et al., Plaintiffs/Respondents, request this Honorable Court to deny the renewed Motion to Strike Lis Pendens and continue holding the Petition to Strike Lis Pendens in abeyance until such time as a Final Order in the federal court has been issued by Judge Jones. Respectfully submitted, Thomas . Scott, squire Attorney I.D. #15681 Linda J. Olsen, Esquire Attorney I.D. #92858 KILLIAN & GEPHART, LLP 218 Pine Street P.O. Box 886 Harrisburg, PA 17108-0886 Tel: (717) 232-1851 Dated: February 20, 2009 Attorneys for Plaintiffs/Respondents, Robert M. Mumma, II Grantor Retained Annuity Trust, Robert M. Mumma, II and Susan Mumma CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date, a copy of the foregoing document has been served on counsel of record addressed as follows and in the manner indicated: By U.S. Mail and Hand Delivery Hubert X. Gilroy, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 By First Class Mail, Postage Prepaid Michael A. Finio, Esquire Matthew Haar, Esquire Saul Ewing, LLP Penn National Insurance Tower 2 North Second street 7th Floor Harrisburg, PA 17101 Lin4J.sen, E e KILLIAN & GEPHART, LLP 218 Pine Street P.O. Box 886 Harrisburg, PA 17108-0886 Dated: February 20, 2009 f > CM ;-3 c o 71 .. 1 r-n `r FEB 1 ? 20 J ROBERT M. MUMMA, II IN THE COURT OF COMMON PLEAS OF GRANTOR RETAINED ANNUITY CUMBERLAND COUNTY, PENNSYLVANIA TRUST; ROBERT M. MUMMA, II and SUSAN MUMMA, NO. 2008- 7187 CIVIL CIVIL ACTION - LAW V. BENEDICT B. RANDOLPH, V. PENNSY SUPPLY, IN., Defendant V. DANNY L. TURNER, Additional Defendant ORDER OF COURT *009, upon review of the attached Motion to AND NOW this 44 day of wrii!r Strike the Lis Pendens issued in the above matter and after consideration of the record in this case, it is directed that the Lis Pendens filed in the above matter by Robert M. Mumma, II, et al is hereby STRICKEN. Bpi rdIA4;A 44W E. 4C44-? A?a cc: bert X. Gilroy, Esquire mas W. Scott, Esquire - A 3 ,,<4ichael A. Finio, Esquire 74 -7 Coem m-atUxL a??.r oq 111.71i? - :6 `i< ?2 0IJ OOQZ k"AN I ? :6 1,111 .13' 2 23. 65 Z ,11 Thomas W. Scott, Esquire PA I.D. 15681 Linda J. Olsen, Esquire PA I. D. 92858 Killian & Gephart, LLP 218 Pine Street P. O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 lolsen(a killianuephart.com tscott(@3dlliangghart.com ROBERT M. MUMMA, H . GRANTOR RETAINED ANNUITY TRUST; ROBERT M. MUMMA, H AND SUSAN MUMMA, : Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA NO. 08-7187 CIVIL TERM V. and BENEDICT B. RANDOLPH NO. 98-950 CIVIL V. PENNSY SUPPLY, INC., Defendant V. DANNY L. TURNER, . Additional Defendant PLAINTIFFS' MOTION FOR POST-TRIAL RELIEF NOW COMES, the Robert M. Mumma H Grantor Retained Annuity Trust, Robert M. Mumma, II and Susan Mumma (hereinafter "Mumma"), by and through counsel, Killian & Gephart, LLP, and files the following motion for post trial relief pursuant to Pa. R.C.P. 227.1 and in support thereof sets forth the following: 1. A Praecipe for Lis Pendens was originally filed in this matter on February 19, 1998 to civil docket number 98-0950 regarding a dispute over the ownership of property located at 1607 Industrial Drive, Carlisle, Cumberland County, Pennsylvania, which was and continues to be the subject of an action pending in the United States District Court for the Middle District of Pennsylvania, docketed at Civil Action No. 98-CV-0087.. 2. A second Praecipe for Lis Pendens was filed in this matter on December 9, 2008 regarding the ongoing dispute over the ownership of the property located at 1607 Industrial Drive, Carlisle, Cumberland County, Pennsylvania, which is currently the subject of an action pending in the United States District Court for the Middle District of Pennsylvania, docketed at Civil Action No. 98-CV-0087. 3. A hearing was held before Judge Guido on December 11, 2008. 4. On January 14, 2009 Pennsy Supply, Inc. filed a Motion to Amend the Order of November 19, 2008 to Certify a Final Judgment as provided in Rule 54(b) in the United States District Court for the Middle District of Pennsylvania. 5. On January 26, 2009, Plaintiffs filed a Status Report and Request to Hold Lis Pendens in Abeyance. A copy of Pennsy's Rule 54(b) motion was attached to that Status Report as Appendix "A." 6. On January 29, 2009, the Honorable Judge Guido issued an Order directing Plaintiffs to file a supplemental status report within ten days of the entry of an Order by Judge Jones disposing of Penny's Rule 54(b) Motion. 7. On February 10, 2009, Judge Jones issued a Memorandum and Order denying Penny's request to certify his November 19, 2009 Order as final and scheduling a telephone conference call between Judge Jones and all counsel on February 24, 2009 at 1:30 p.m. A copy of the aforesaid Order is attached hereto as Exhibit "A." 2 8. On February 17, 2009, counsel for Danny L. Turner filed renewed Motions to Strike Lis Pendens in docket No. 98-950 and also in docket No. 2008-7187. 8. On February 20, 2009, counsel for Mumma timely filed a Response to the renewed Motions to Strike Lis Pendens and also filed a status report as directed by this Court's January 29, 2009 Order. 9. On February 24, 2009, the Honorable Edward E. Guido, following a conference call with all counsel of record, issued Orders striking the Lis Pendens filed to civil docket Nos. 98-950 and 2008-7187. 10. The February 24, 2009 Order decreed that "upon review of the attached Motion to Strike the Lis Pendens issued in the above matter and after consideration of the record in this case, it is directed that the Lis Pendens filed in the above matter by Robert M. Mumma, II, et al is hereby STRICKEN." 11. No transcript of the aforesaid hearing is available because there was no court reporter present in the courtroom at the time of the December 11, 2008 hearing. 12. Plaintiffs' grounds for post-trial relief were all preserved by virtue of having been raised by objections at the hearing and also as set forth in Plaintiffs' Response to Turner's Motion to Strike Lis Pendens. 13. Mumma requests post-trial relief based on the Court's errors of law and abuse of discretion. I. Judge Guido's verbal directive to Mumma to file an appeal in the federal litigation within 45 days following the December 11, 2008 hearing was an error of law and an abuse of discretion. 14. This Court committed an egregious error of law and abuse of discretion when it directed Mumma to file an untimely appeal in the case before the United States District Court for the Middle District of Pennsylvania within forty-five (45) days following the December 11, 2008 hearing before Judge Guido. II. The Lis Pendens should not be stricken because the underlying federal litigation is still pending and there has been no final order issued. A. The November 19, 2008 Order of the Honorable John E Jones III is not a final order and, therefore, is not appealable. 15. Pennsy Supply, Inc. ("Penny") filed a Motion for certification of the November 19, 2008 Order as final pursuant to Fed. R. Civ. P. 54(b) in the federal action before Judge Jones. 16. This Court properly continued further action on Turner's Motion to Strike Lis Pendens pending action by Judge Jones on the Motion to Certify his November 19, 2008 Order as final. 17. By Order of February 10, 2009, the Honorable John E Jones III denied Penny's Motion to Certify the November 19, 2008 Order as final. 18. As a result of Judge Jones' February 10, 2009 Order, the case before the U.S. District Court for the Middle District of Pennsylvania is still pending; there is no final order; and the same is, therefore, not appealable. 4 B. Judge Jones refused to certify the November 19, 2008 Order as final, which would have triggered the period for appeal by any party. 19. Judge Jones found that certification of his November 19, 2008 Order as final was improper under Fed. R. Civ. P. 54(b) because the action presents more than one claim for relief, multiple parties are involved, and the claims of Mumma had not been fully adjudicated. 20. Judge Jones held that "we will deny the instant Motion since our Order of November 19, 2008 did not determine the amount of damages, meaning that it cannot constitute a `final judgment. "' (Order at p. 4). 21. Judge Jones based his decision on several Third Circuit cases holding that claims are not fully adjudicated when the request for damages is not yet determined. See eJohn v. Temple University, 537 F.3d 301, 307 (3d Cir. 2008); Sun Shipbuilding& Dry Dock Co. v. Benefits Review Bd.. 535 F.2d 758, 670 (3d Cir. 1976). 22. Judge Jones further "declined to consider the factors enunciated in Waldorf v. Shuta. 142 F.3d 601, 609 (3d Cir. 1998) for determining whether there is a `just reason' for delaying certification" based upon his determination that the November 19, 2008 Order was not final until the issue of damages had been resolved. (Order at p. 4, n.3). C. A Lis Pendens is appropriate and should remain of record until such time as there is no pending litigation affecting the property against which the Us pendens was filed. 23. Lis Pendens means, literally, pending lawsuit. Black's Law Dictionary, 7th Ed. p. 942-43. 5 24. As a result of Judge Jones' February 10, 2009 Order, the lawsuit in the United States District Court for the Middle District of Pennsylvania, docketed at Civil Action No. 98- CV-0087 affects the property acquired by Turner and is still pending. 25. This Court committed an egregious error of law and abuse of discretion when it struck both the Lis Pendens regarding the Industrial Drive property while a lawsuit is still pending in the federal court. D. Striking a Lis Pendens makes it appear to anyone searching the title to a property that there is no pending litigation affecting the property when, in fact, exactly the opposite is true in this case. 26. The purpose for recording a Lis Pendens is to put the world on notice that there is a pending lawsuit that might affect a property and "that any interests acquired during the pendency of the suit are subject to its outcome." Black's Law Dictiongy, 7th Ed. p. 943. 27. Striking the Lis Pendens means that were Turner to attempt to sell or encumber the property during the pendency of the federal litigation, a title searcher would see that the Lis Pendens had been stricken and would have no reason to look further with respect to the status of the federal court litigation. 28. Striking the Lis Pendens has the potential to cause future title litigation that could be avoided by leaving the Lis Pendens in place pending a final order in the federal litigation and any subsequent appeal by any party to that action. 29. This Court committed an egregious error of law and abuse of discretion when it struck both the Lis Pendens affecting the Turner property while a lawsuit is still pending in the 6 federal court, and such action should be overturned, allowing the Lis Pendens to remain of record in Cumberland County. WHEREFORE, Mumma requests that the Lis Pendens docketed to Cumberland County Civil No. 98-950 and No. 08-7187 remain of record and that the striking of the same be held in abeyance pending the issuance of a Final Order by Judge Jones in the Middle District litigation docketed to No. 98-CV-0087 and any appeal by any party following the issuance of the Final Order. III. Motion for new hearing and argument before the Court en banc. 30. Pursuant to Pa. R.C.P. 227.2, it is requested that a new hearing be scheduled and that the Motion for Post-Trial Relief be heard and decided by the court en banc. 31. Judges Edward E. Guido and Edgar B. Bayley have previously ruled upon issues in this matter. WHEREFORE, Mumma requests that this matter be heard and decided by the Court, en banc. Respectfully submitted Thom . Scott, squire Attorney I.D. #15681 Linda J. Olsen, Esquire Attorney I.D. #92858 KILLIAN & GEPHART, LLP 218 Pine Street P.O. Box 886 Harrisburg, PA 17108-0886 Tel: (717) 232-1851 Dated: March 5, 2009 Attorneys for Plaintiffs CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date, a copy of the foregoing document has been served on counsel of record addressed as follows and in the manner indicated: By U.S. Mail and Hand Delivery Hubert X. Gilroy, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 By First Class Mail, Postage Prepaid Michael A. Finio, Esquire Matthew Haar, Esquire Saul Ewing, LLP Penn National Insurance Tower 2 North Second Street, 7th Floor Harrisburg, PA 17101 Linda J. Olsen, E uire KILLIAN & GEPHART, LLP 218 Pine Street P.O. Box 886 Harrisburg, PA 17108-0886 Dated: March 5, 2009 •Y. 4 ROBERT M. MUMMA, R GRANTOR RETAINED ANNUITY TRUST; ROBERT M. MUMMA, lI AND SUSAN MUMMA, Plaintiffs, V. BENEDICT B. RANDOLPH V. PENNSY SUPPLY, INC., Defendant, V. DANNY L. TURNER, Additional Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-7187 CIVIL TERM ? and NO. 98-950 CIVIL ORDER OF COURT AND NOW, this/kAday of M 2009, upon consideration of the Motion for Post-Trial Relief filed by Plaintiffs, it is ORDERED that: Raid 1k X-1a -_ -1 -6 -HBO, (b) A new hearing and argument before the Court am4mw will be held on the day of 2009 in Courtroom No. , at /46 *4 M.; 0and -,? 98- -Ivffm ge c o or e i e is c f 'Win F, PPnnWjvania has h urner No. 98-0087, M.D. M a nap eals THE COURT: Edward E. (ludo, Judge Distribution: omas W. Scott, Esquire Killian & Gephart, LLP, 218 Pine Street, PO Box 886, Harrisburg, PA 17108-0886 Aubert X. Gilroy, Esquire Martson Law Offices, 10 East High Street, Carlisle, PA 17013 hael A, Finio, Esquire a ew Haar, Esquire Saul Ewing, LLP, Penn National Insurance Tower, 2 No. Second St., 7' Fl., Harrisburg, PA 17101 P LCL 3 /I of v? r,a ° O .er p 41`1 cc) om S C) Gi Thomas W. Scott, Esquire PA I.D. 15681 Linda J. Olsen, Esquire PA I. D. 92858 Killian & Gephart, LLP 218 Pine Street P. O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 lolsenAld1liangeohart. com tscott &Ailliangephart.com ROBERT M. MUMMA, II IN THE COURT OF COMMON PLEAS GRANTOR RETAINED ANNUITY CUMBERLAND COUNTY PENNSYLVANIA TRUST; ROBERT M. MUMMA, II AND SUSAN MUMMA, Plaintiffs NO. 08-7187 CIVIL TERM V. and BENEDICT B. RANDOLPH NO. 98-950 CIVIL V. PENNSY SUPPLY, INC., Defendant V. DANNY L. TURNER, Additional Defendant PLAINTIFFS' MOTION FOR POST-TRIAL RELIEF NOW COMES, the Robert M. Mumma II Grantor Retained Annuity Trust, Robert M. Mumma, II and Susan Mumma (hereinafter "Mumma"), by and through counsel, Killian & Gephart, LLP, and files the following motion for post trial relief pursuant to Pa. R.C.P. 227.1 and in support thereof sets forth the following: 1. A Praecipe for Lis Pendens was originally filed in this matter on February 19, 1998 to civil docket number 98-0950 regarding a dispute over the ownership of property located at 1607 Industrial Drive, Carlisle, Cumberland County, Pennsylvania, which was and continues to be the subject of an action pending in the United States District Court for the Middle District of Pennsylvania, docketed at Civil Action No. 98-CV-0087.. 2. A second Praecipe for Lis Pendens was filed in this matter on December 9, 2008 regarding the ongoing dispute over the ownership of the property located at 1607 Industrial Drive, Carlisle, Cumberland County, Pennsylvania, which is currently the subject of an action pending in the United States District Court for the Middle District of Pennsylvania, docketed at Civil Action No. 98-CV-0087. 3. A hearing was held before Judge Guido on December 11, 2008. 4. On January 14, 2009 Pennsy Supply, Inc. filed a Motion to Amend the Order of November 19, 2008 to Certify a Final Judgment as provided in Rule 54(b) in the United States District Court for the Middle District of Pennsylvania. 5. On January 26, 2009, Plaintiffs filed a Status Report and Request to Hold Lis Pendens in Abeyance. A copy of Pennsy's Rule 54(b) motion was attached to that Status Report as Appendix "A." 6. On January 29, 2009, the Honorable Judge Guido issued an Order directing Plaintiffs to file a supplemental status report within ten days of the entry of an Order by Judge Jones disposing of Pennsy's Rule 54(b) Motion. 7. On February 10, 2009, Judge Jones issued a Memorandum and Order denying Penny's request to certify his November 19, 2009 Order as final and scheduling a telephone conference call between Judge Jones and all counsel on February 24, 2009 at 1:30 p.m. A copy of the aforesaid Order is attached hereto as Exhibit "A." 2 8. On February 17, 2009, counsel for Danny L. Turner filed renewed Motions to Strike Lis Pendens in docket No. 98-950 and also in docket No. 2008-7187. 8. On February 20, 2009, counsel for Mumma timely filed a Response to the renewed Motions to Strike Lis Pendens and also filed a status report as directed by this Court's January 29, 2009 Order. 9. On February 24, 2009, the Honorable Edward E. Guido, following a conference call with all counsel of record, issued Orders striking the Lis Pendens filed to civil docket Nos. 98-950 and 2008-7187. 10. The February 24, 2009 Order decreed that "upon review of the attached Motion to Strike the Lis Pendens issued in the above matter and after consideration of the record in this case, it is directed that the Lis Pendens filed in the above matter by Robert M. Mumma, 11, et al is hereby STRICKEN." 11. No transcript of the aforesaid hearing is available because there was no court reporter present in the courtroom at the time of the December 11, 2008 hearing. 12. Plaintiffs' grounds for post-trial relief were all preserved by virtue of having been raised by objections at the hearing and also as set forth in Plaintiffs' Response to Turner's Motion to Strike Lis Pendens. 13. Mumma requests post-trial relief based on the Court's errors of law and abuse of discretion. 3 I. Judge Guido's verbal directive to Mumma to file an appeal in the federal litigation within 45 days following the December 11, 2008 hearing was an error of law and an abuse of discretion. 14. This Court committed an egregious error of law and abuse of discretion when it directed Mumma to file an untimely appeal in the case before the United States District Court for the Middle District of Pennsylvania within forty-five (45) days following the December 11, 2008 hearing before Judge Guido. II. The Lis Pendens should not be stricken because the underlying federal litigation is still pending and there has been no final order issued. A. The November 19, 2008 Order of the Honorable John E Jones III is not a final order and, therefore, is not appealable. 15. Pennsy Supply, Inc. ("Penny") filed a Motion for certification of the November 19, 2008 Order as final pursuant to Fed. R. Civ. P. 54(b) in the federal action before Judge Jones. 16. This Court properly continued further action on Turner's Motion to Strike Lis Pendens pending action by Judge Jones on the Motion to Certify his November 19, 2008 Order as final. 17. By Order of February 10, 2009, the Honorable John E Jones III denied Pennsy's Motion to Certify the November 19, 2008 Order as final. 18. As a result of Judge Jones' February 10, 2009 Order, the case before the U.S. District Court for the Middle District of Pennsylvania is still pending; there is no final order; and the same is, therefore, not appealable. 4 B. Judge Jones refused to certify the November 19, 2008 Order as final, which would have triggered the period for appeal by any party. 19. Judge Jones found that certification of his November 19, 2008 Order as final was improper under Fed. R. Civ. P. 54(l) because the action presents more than one claim for relief, multiple parties are involved, and the claims of Mumma had not been fully adjudicated. 20. Judge Jones held that "we will deny the instant Motion since our Order of November 19, 2008 did not determine the amount of damages, meaning that it cannot constitute a `final judgment. "' (Order at p. 4). 21. Judge Jones based his decision on several Third Circuit cases holding that claims are not fully adjudicated when the request for damages is not yet determined. See DeJohn v. Temple University, 537 F.3d 301, 307 (3d Cir. 2008); Sun Shipbuilding Da Dock Co. v. Benefits Review Bd., 535 F.2d 758, 670 (3d Cir. 1976). 22. Judge Jones further "declined to consider the factors enunciated in Waldorf v. Shuta, 142 F.3d 601, 609 (3d Cir. 1998) for determining whether there is a `just reason' for delaying certification" based upon his determination that the November 19, 2008 Order was not final until the issue of damages had been resolved. (Order at p. 4, n.3). C. A Lis Pendens is appropriate and should remain of record until such time as there is no pending litigation affecting the property against which the lis pendens was filed. 23. Lis Pendens means, literally, pending lawsuit. Black's Law Dictionary, 7th Ed. p. 942-43. 24. As a result of Judge Jones' February 10, 2009 Order, the lawsuit in the United States District Court for the Middle District of Pennsylvania, docketed at Civil Action No. 98- CV-0087 affects the property acquired by Turner and is still pending. 25. This Court committed an egregious error of law and abuse of discretion when it struck both the Lis Pendens regarding the Industrial Drive property while a lawsuit is still pending in the federal court. D. Striking a Lis Pendens makes it appear to anyone searching the title to a property that there is no pending litigation affecting the property when, in fact, exactly the opposite is true in this case. 26. The purpose for recording a Lis Pendens is to put the world on notice that there is a pending lawsuit that might affect a property and "that any interests acquired during the pendency of the suit are subject to its outcome." Black's Law Dictionary, 7th Ed. p. 943. 27. Striking the Lis Pendens means that were Turner to attempt to sell or encumber the property during the pendency of the federal litigation, a title searcher would see that the Lis Pendens had been stricken and would have no reason to look further with respect to the status of the federal court litigation. 28. Striking the Lis Pendens has the potential to cause future title litigation that could be avoided by leaving the Lis Pendens in place pending a final order in the federal litigation and any subsequent appeal by any party to that action. 29. This Court committed an egregious error of law and abuse of discretion when it struck both the Lis Pendens affecting the Turner property while a lawsuit is still pending in the 6 federal court, and such action should be overturned, allowing the Lis Pendens to remain of record in Cumberland County. WHEREFORE, Mumma requests that the Lis Pendens docketed to Cumberland County Civil No. 98-950 and No. 08-7187 remain of record and that the striking of the same be held in abeyance pending the issuance of a Final Order by Judge Jones in the Middle District litigation docketed to No. 98-CV-0087 and any appeal by any party following the issuance of the Final Order. III. Motion for new hearing and argument before the Court en banc. 30. Pursuant to Pa. R.C.P. 227.2, it is requested that a new hearing be scheduled and that the Motion for Post-Trial Relief be heard and decided by the court en banc. 31. Judges Edward E. Guido and Edgar B. Bayley have previously ruled upon issues in this matter. WHEREFORE, Mumma requests that this matter be heard and decided by the Court, en banc. Respectfully submitted Thom . Scott, uire Attorney I.D. #15681 Linda J. Olsen, Esquire Attorney I.D. #92858 KILLIAN & GEPHART, LLP 218 Pine Street P.O. Box 886 Harrisburg, PA 17108-0886 Tel: (717) 232-1851 Dated: March 5, 2009 Attorneys for Plaintiffs CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date, a copy of the foregoing document has been served on counsel of record addressed as follows and in the manner indicated: By U.S. Mail and Hand Delivery Hubert X. Gilroy, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 By First Class Mail, Postage Prepaid Michael A. Finio, Esquire Matthew Haar, Esquire Saul Ewing, LLP Penn National Insurance Tower 2 North Second Street, 7th Floor Harrisburg, PA 17101 Linda J. lsen, E uire KILLIAN & GEPHART, LLP 218 Pine Street P.O. Box 886 Harrisburg, PA 17108-0886 Dated: March 5, 2009 FILED- DFTICE Q;- THE Pr,OTH'OPvIOTAIRY 2009 MAR 10 PM 3: 08 PEI~ NSYLVAI IA ROBERT M. MUMMA, II, GRANTOR RETAINED ANNUITY TRUST; ROBERT M. MUMMA, II,: AND SUSAN MUMMA, Plaintiffs V. BENEDICT B. RANDOLPH V. . PENNSY SUPPLY, INC., Defendant V. DANNY L. TURNER, . Additional Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-7187 CIVIL TERM ORDER OF COURT AND NOW, this 14th day of April, 2009, after having heard the argument of counsel, the Motion for Post-Trial Relief/Reconsideration of Plaintiffs is DENIED. By the Court, Amas W. Scott, Esquire Killian & Gephart !?""'ert X. Gilroy, Esquire Marrtson Law Offices W'chael A. Finio, Esquire Matthew Haar, Esquire Saul Ewing, LLP srs J I S -6 WV S i M 6002 AMONOHif3dd 3 IU JO 3 :Po- Mw ROBERT M. MUMMA, II AND SUSAN MUMMA, Plaintiffs V. BENEDICT B. RANDOLPH 132 Rivercrest Drive Greenville NC 27858-9300 V. PENNSY SUPPLY, INC., 1001 Paxton Street Harrisburg, PA 17105-3331 Defendant V. DANNY L. TURNER, 210 Big Pond Road Shippensburg, PA 17257-9646 Additional Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-7187 CIVIL TERM NOTICE OF APPEAL Notice is hereby given that Robert M. Mumma, II and Susan Mumma, Plaintiffs above- named, hereby appeal to the Superior Court of Pennsylvania from the Order entered in this matter on the 14th day of April, 2009, which is attached hereto. The Order has been entered in the docket as evidenced by the attached copy of the docket entry. No verbatim record of the proceedings was made in the above-captioned matters. Respectfully submitted, Dated: May 14, 2009 Thomas W. Scott, Esquire Attorney I. D. #15681 Killian & Gephart, LLP 218 Pine Street P. O. Box 886 Harrisburg, PA 17108 (717) 232-1851 Attorneys for Plaintiffs CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date, a copy of the foregoing Notice of Appeal has been served on counsel of record addressed as follows and in the manner indicated: By Hand Delivery Hubert X. Gilroy, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 By First Class Mail, Postage Prepaid Michael A. Finio, Esquire and Matthew Haar, Esquire Saul Ewing, LLP Penn National Insurance Tower 2 North Second Street, 7th Floor Harrisburg, PA 17101 Benedict B. Randolph 132 Rivercrest Drive Greenville, NC 27858-9300 I hereby certify that I served the foregoing document on the following by hand delivery of a true and correct copy to the Office of the Prothonotary of Cumberland County: The Honorable Judge Edward E. Guido Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 Taryn N. Dixon, Court Administrator Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 oan C. ady, Le Assistant t omas'W. Scott, Esquir KILLIAN & GEPHART, LLP 218 Pine Street P.O. Box 886 Harrisburg, PA 17108-0886 Dated: May 14, 2009 i ROBERT M. MUMMA, II, GRANTOR RETAINED ANNUITY TRUST; ROBERT M. MUMMA, II,: AND SUSAN MUMMA, Plaintiffs V. BENEDICT B. RANDOLPH V. PENNSY SUPPLY, INC., Defendant V. DANNY L. TURNER, Additional Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-7187 CIVIL TERM ORDER OF COURT AND NOW, this 14th day of April, 2009, after having heard the argument of counsel, the Motion for Post-Trial Relief/Reconsideration of Plaintiffs is DENIED. By the Court, Thomas W. Scott, Esquire Killian & Gephart Hubert X. Gilroy, Esquire Martson Law Offices Michael A. Finio, Esquire Matthew Haar, Esquire Saul Ewing, LLP srs • PYS511 Cumberland County Prothonotary's Office Civil Case Print Page 1 '2008-07187 MUMMA ROBERT M ET AL (vs) RANDOLPH BENEDICT B Reference No. Filed......... 12/09/2008 Case Tye...... LIS PENDENS Time..... ..: 8.18 Judgmen .... : .00 Execution Date 0/00/0000 Judge Assigned: Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: ******************************************************************************** General Index Attorney Info MUMMA ROBERT M II PLAINTIFF SCOTT THOMAS W MUMMA SUSAN PLAINTIFF SCOTT THOMAS W RANDOLPH BENEDICT B DEFENDANT 132 RIVERCREST DR GREENVILLE NC 27858 9300 PENNSY SUPPLY INC DEFENDANT 1001 PAXTON ST HARRISBURG PA 17105 3331 TURNER DANNY L DEFENDANT Y GILROY HUBERT X 210 BIG POND RD SHIPPENSBURG PA 17257 9646 ******************************************************************************** Judgment Index Amount Date Desc RANDOLPH BENEDICT B 12/09/2008 LIS PENDENS PENNSY SUPPLY INC 12/09/2008 LIS PENDENS TURNER DANNY L 12/09/2008 LIS PENDENS ******************************************************************************** * Date Entries ******************************************************************************** FIRST ENTRY - 12/09/2008 ERAQECIPE FOR LIS PENDENS AND LIS PENDENS ENTERED BY THOMAS W SCOTT ------------------------------------------------------------------- 12/09/2008 MOTION TO STRIKE LIS PENDENS BY HUBERT X GILROY ESQ ------------------------------------------------------------------- 12/12/2008 AFFIDAVIT OF SERVICE PURSUANT TO PA RCP 400 B 3 - PRAECIPE FOR LIS PENDENS UPON DEFTS COUNSEL - BY JOAN C SHADY LEGAL ASSISTANT ------------------------------------------------------------------- 1/26/2009 STATUS REPORT AND REQUEST TO CONTINUE HOLDING PETITION TO STRIKE LIS PENDENS IN ABEYANCE - BY THOMAS W SCOTT ATTY FOR PLFFS ------------------------------------------------------------------- 1/29/2009 ORDER OF COURT - 1/29/09 IN RE: STATUS REPORT AND REQUEST TO CONTINUE HOLDING PETITION TO STRIKE LIS PENDENS IN ABEYANCE - BY EDWARD E GUIDO J - COPIES MAILED 1/29/09 ------------------------------------------ ------------------------- 2/17/2009 MOTION TO STRIKE LIS PENDENS - BY HUBERT X GILROY ATTY FOR PETITIONER ------------------------------------------------------------------- 2/20/2009 STATUS REPORT AND REQUEST TO CONTINUE HOLDING PETITION TO STRIKE LIS PENDENS IN ABEYANCE - BY LINDA J OLSEN ATTY FOR PLFFS ------------------------------------------------------------------- 2/20/2009 PLAINTIFF'S RESPONSE TO ADDITIONAL DEFT DANNY L TURNERS MOTION TO STRIKE LIS PENDENS - BY LINDA J OLSEN ATTY FOR PLFFS ------------------------------------------------------------------- 2/25/2009 ORDER OF COURT - 2/24/09 IN RE: MOTION TO STRIKE LIS PENDENS - LIS PENDENS IS STRICKEN - BY EDWARD E GUIDO J - COPIES MAIELD 2/25/09 ------------------------------------------------------------------- 3/05/2009 PLAINTIFF'S MOTION FOR POST TRIAL RELIEF - BY LINDA J OLSEN ATTY FOR PLFFS ------------------------------------------------------------------- 3/10/2009 ORDER OF COURT - 3/10/09 IN RE: PLFFS MOTION FOR POST TRIAL RELIEF - A NEW HEARING AND ARGUMENT BEFORE THE COURT WILL BE HELD ON 4/14/09 AT 11:00 AM IN CR3 CUMBERLAND COUNTY COURTHOUSE - BY EDWARD E GUIDO J - COPIES MAILED 3/10/09 ------------------------------------------------------------------- • PYS511 Cumberland County Prothonotary's Office Page 2 Civil Cas e Print ,2008-07187 MUMMA ROBERT M ET AL (vs) RANDOLPH BENEDICT B Reference No. Filed......... 12/09/2008 Case Ty e Jud ment ..... . LIS PENDENS 00 Time. ... i 8.18 g . .....: . Execut on Date 0/00/0000 Judge Ass igned: Jury Trial.... Disposed --------- Desc.: --- C C t Disposed Date. 0/00/0000 ase ommen s ---------- --- Higher Crt 1.: 4/15/2009 ORDER OF COURT - 4/14/09 - IN RE: MOTION FORhPOST-TRIAL RELI N OF / O I D PLFFS IS DENIED - BY EDWARD E GUIDO J - COPIES MAI LED 4 /15/09 - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * Fees & Debits Bw*Bal***Pmts/Ad End Bal *********************************** ****** ******************************* JUDGMENT-PRAECI 31.00 31.00 .00 ------------------------ ----------- 31.00 31.00 .00 ******************************************************************************** * End of Case Information ******************************************************************************** MW CrA? PL r ipy pou, I)- ?)- SD 9 6 COMMONWEALTH OF PENNSYLVANIA Karen Reid Bramblett, Esq. Prothonotary Milan K. Mrkobrad, Esq. Deputy Prothonotary Mr. Curtis R. Long Prothonotary Superior Court of Pennsylvania Middle District May 18, 2009 Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Re: 842 M DA 2009 Robert M. Mumma II and Susan Mumma, Appellants V. Benedict B. Randolph V. Pennsy Supply, Inc. V. Danny L. Turner Dear Mr. Long: 100 Pine Street. Suite 400 Harrisburg. PA 17101 717-772-1294 www. superior. court. s Late. pa. us Enclosed please find a copy of the docket for the above appeal that was recently filed in the Superior Court. Kindly review the information on this docket and notify this office in writing if you believe any corrections are required. Appellant's counsel is also being sent a Docketing Statement, pursuant to Pa.R.A.P. 3517, for completion and filing. Please note that Superior Court Dockets are available on the Internet at the Web site address printed at the top of this page. Thank you. Very truly yours, Karen Reid Bramblett, Esq. Prothonotary WJT Enclosure 4:09 P.M. Appeal Docket Sheet Docket Number: Page 1 of 4 May 18, 2009 842 MDA 2009 Robert M. Mumma II and Susan Mumma, Appellants V. Benedict B. Randolph V. Pennsy Supply, Inc. V. Danny L. Turner Initiating Document: Notice of Appeal Case Status: Active Case Processing Status: May 15, 2009 Journal Number: Case Category: Civil Consolidated Docket Nos.: Awaiting Original Record CaseType: Civil Action Law Related Docket Nos.: 843 MDA 2009 Same Issue(s) Next Event Type: Receive Docketing Statement Next Event Type: Original Record Received SCHEDULED EVENT Next Event Due Date: June 1, 2009 Next Event Due Date: July 13, 2009 Superior Court of Pennsylvania Aft 5/18/2009 3023 4:10 P.M. Appeal Docket Sheet Docket Number: Paqe 2 of 4 May 18, 2009 Superior Court of Pennsylvania 842 MDA 2009 Ad& COUNSEL INFORMATION Appellant Mumma II, Robert M. & Susan Pro Se: Appoint Counsel Status: IFP Status: No Appellant Attorney Information: Attorney: Scott, Thomas W. Bar No.: 15681 Law Firm: Killian & Gephart, L.L.P. Address: 218 Pine Street Harrisburg, PA 17101 Phone No.: (717)232-1851 Fax No.: (717)238-0592 Receive Mail: Yes E-Mail Address: Receive E-Mail: No Appellee Pennsy Supply, Inc. Pro Se: Appoint Counsel Status: IFP Status: Appellee Attorney Information: Attorney: Finio, Michael A. Bar No.: 38872 Law Firm: Saul Ewing, LLP Address: 2 N 2nd St 7th FI Harrisburg, PA 17101 Phone No.: (717)238-7671 Fax No.: (717)257-7585 Receive Mail: Yes E-Mail Address: mfinio@saul.com Receive E-Mail: Yes Attorney: Haar, Matthew M. Bar No.: 85688 Law Firm: Saul Ewing, LLP Address: 2 N Second St 7th FI Harrisburg, PA 17101 Phone No.: (717)257-7508 Fax No.: (717)257-7581 Receive Mail: No E-Mail Address: mhaar@saul.com Receive E-Mail: No Appellee Randolph, Benedict B. Pro Se: Appoint Counsel Status: IFP Status: Appellee Attorney Information: 5/18/2009 3023 4:10 P.M. Appeal Docket Sheet Docket Number: 842 MDA 2009 Paqe 3 of 4 May 18, 2009 Attorney: Randolph, Benedict B. Bar No.: Law Firm: Address: 132 Rivercrest Drive Greenville, NC 27858-9300 Phone No.: Fax No.: Receive Mail: Yes E-Mail Address: Receive E-Mail: No Appellee Turner, Danny L. Pro Se: Appoint Counsel Status: IFP Status: Appellee Attorney Information: Attorney: Gilroy, Hubert Xavier Bar No.: 29943 Law Firm: Martson Deardorff Williams Otto Gilroy & Faller Address: 10 E High Street Carlisle, PA 17013 Phone No.: (717)243-3341 Fax No.: (717)243-1850 Receive Mail: Yes E-Mail Address: Receive E-Mail: No FEE INFORMATION Paid Fee Date Fee Name Fee Amt Amount Receipt Number 5/14/09 Notice of Appeal 60.00 60.00 2009SPRMD000425 TRIAL COURT/AGENCY INFORMATION Court Below: Cumberland County Court of Common Pleas County: Cumberland Division: Civil Date of Order Appealed From: April 14, 2009 Judicial District: 9 Date Documents Received: May 15, 2009 Date Notice of Appeal Filed: May 14, 2009 Order Type: Order Entered OTN: Judge: Guido, Edward E. Lower Court Docket No.: 08-7187 Judge Superior Court of Pennsylvania 44L ORIGINAL RECORD CONTENTS Original Record Item Filed Date Content/Description Date of Remand of Record: BRIEFS 5/18/2009 3023 4:10 P.M. Appeal Docket Sheet Docket Number: 842 MDA 2009 Superior Court of Pennsylvania Pale 4 of 4 AOL May 18, 2009 DOCKET ENTRIES Filed Date Docket Entry/Document Name Party Type Filed By May 15, 2009 Notice of Appeal Filed Appellant Mumma II, Robert M. & Susan May 18, 2009 Docketing Statement Exited (Civil) Middle District Filing Office 5/18/2009 3023 2004 ?Ir6 I if i u i;, " t Y 1 A ROBERT M. MUMMA, II, : IN THE COURT OF COMMON PLEAS OF GRANTOR RETAINED ANNUITY : CUMBERLAND COUNTY, PENNSYLVANIA TRUST; ROBERT M. MUMMA, . II, AND SUSAN MUMMA, NO. 2008 - 7187 CIVIL TERM Plaintiffs V. BENEDICT B. RANDOLPH V. PENNSY SUPPLY, INC., Defendant V. DANNY L. TURNER, Additional Defendant : CIVIL ACTION - LAW IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925 Guido, J., July 3 r, 2009 Plaintiffs have filed a timely appeal from our order of April 14, 2009, which denied reconsideration of our earlier order striking a lis pendens filed against property owned by additional defendant Turner. Our decision was based upon the Memorandum and Order filed by the Honorable John E. Jones, III on November 19, 2008, in the United States District Court for the Middle District of Pennsylvania at Civil No. 98-CV-0087. The complex and lengthy history of the litigation giving rise to the lis pendens is set forth in the well reasoned opinion of Judge Jones which we attach hereto. As Judge Jones concluded: We now conclude yet another chapter in this ongoing legal saga between Mumma and Pennsy, which has now effectively protracted itself over the span of a decade. Regrettably for Turner, he was pulled into the vortex of this maelstrom as a result of his purchase of the Carlisle property; however, our resolution will end his participation in the case sub judice. He departs along with the Carlisle property, largely due to Mumma's unfortunate decision, as aforestated, not to record his right of first refusal. (emphasis added).' We were persuaded by both the reasoning and outcome of Judge Jones' decision. Since the property at issue is no longer the subject of litigation, we granted the petition to strike the lis pendens. 7131l04 DATE Edward E. Guido, J. ? Thomas W. Scott, Esquire ,1---Hubert X. Gilroy, Esquire ?Michael A. Finio, Esquire ,,14atthew Haar, Esquire Saul Ewing, LLP sld Coa,ES m?aiLL h ^a cn ? s_n 1 Attached Opinion of Judge Jones, p. 11. r Case 1:98-cv-00087-JEJ Document 162 Filed 11/19/2008 Page 1 of 13 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ROBERT M. MUMMA, II, GRANTOR RETAINED ANNUITY TRUST; ROBERT M. MUMMA, II, and SUSAN MUMMA Movants, V. BENEDICT B. R.ANDOLPH V. PENNSY SUPPLY, INC., Respondent, V. DANNY L. TURNER, Additional Respondent. Civil No. 98-cv-0087 Judge John E. Jones III MEMORANDUM AND ORDER November 19, 2008 THE BACKGROUND OF THIS ORDER IS AS FOLLOWS: Pending before this Court is a self-styled "First Motion to Enforce Settlement Agreement and Stipulation of Dismissal, to Join Additional Respondent and to Impose Sanctions filed by the Movant" ("Movant's Motion" or "Motion"), which was filed on December 19, 2007. (Rec. Doc. 121). For the reasons that 1 Case 1:98-cv-00087-JEJ Document 162 Filed 11/19/2008 Page 2 of 13 follow, we will grant in part and deny in part the Movant's Motion. FACTUAL BACKGROUND: In 1998, litigation was commenced to the above caption between Robert M. Mumma ("Mumma') and Pennsy Supply, Inc. ("Pennsy") regarding a piece of land in Carlisle (the "Carlisle property' or "Property") that was used for manufacturing concrete. Mumma recorded a lis pendens on the Property in Cumberland County while it was the subject of litigation, which was ultimately resolved through a settlement agreement that was memorialized by a court order. That agreement gave Pennsy ownership of the Property but also granted Mumma a first right of refusal if Pennsy ever chose to sell the Property. Unlike the lis pendens, the right of fast refusal was not placed on the public record in Cumberland County. A few years later, Danny L. Turner ("TurnefI expressed interest in the Property. He retained counsel who conducted a title search and discovered the aforementioned lis pendens on the Carlisle Property. According to Turner's counsel, the following steps were taken to ensure the Property was not encumbered: (i)Turner received verbal assurances from Penny's attorneys at Saul Ewing that the matter involving the lis pendens had been settled and dismissed; (ii) he obtained a copy of the docket report' showing that the underlying case in federal ' The docket entry directed the reader to "see order for details." 2 Case 1:98-cv-00087-JEJ Document 162 Filed 11/1912008 Page 3 of 13 court that formed the basis of the lis pendens had been dismissed with prejudice; and (iii) received an executed seller's affidavit from Pennsy stating that there were no agreements affecting the premises. Upon receiving these assurances, Turner made an offer for the Property. Pennsy did not inform Turner of Mumma's first right of refusal nor did Pennsy notify Mumma that it had a potential purchaser for the Property. Instead, Pennsy ignored Mumma's first right of refusal and sold the Property in 2007 to Turner under a deed restriction that operated in perpetuity, prohibiting Turner, and all future grantees, from using the premises to manufacture concrete. When Mumma later learned of this transaction, he filed a motion to compel Penny to comply with the settlement agreement and honor the first right of refusal (the aforementioned "Movant's Motion"). At that time, the case was before our colleague, the Honorable Sylvia Rambo, who, in addition to allowing the joinder of Tumer, scheduled a hearing for April 3, 2008 (the "Hearing") to take testimony thereon. (Rec. Doc. 134). PROCEDURAL HISTORY: At the Hearing, Judge Rambo appropriately bifurcated the Movant's Motion into discrete portions, the first concerning the merits of the motion ("merits portion") and the second relating to the nature and extent of relief, if any should be 3 Case 1:98-cv-00087-JEJ Document 162 Filed 11/19/2008 Page 4 of 13 afforded ("relief portion). Judge Rambo conducted the Hearing and entered an Order directing the parties to address three distinct legal issues? (Rec. Doc. 139). These issues were fully briefed when Judge Rambo entered an Order of Recusal on August 1, 2008. (Rec. Doc. 150). The case was then assigned to Chief Judge Yvette Kane, who, on August b, 2008, also entered an Order of Recusal that, in turn, resulted in the reassignment of the case to us. (Rec. Doc. 140). Oral argument regarding the briefed legal issues commenced before us on November 13, 2008. After digesting the substance of the arguments at that proceeding, and upon a review of the submissions made prior thereto by all parties, we are now prepared to resolve the merits portion of the Movant's Motion. Accordingly, the following discussion will focus exclusively on the merits portion of the motion; issues of relief will be addressed at a later time. DISCUSSION: At bottom, the dispute presents the Court with two overarching issues, which we will address separately below. A. DID PENNSY BREACH THE SETTLEMENT AGREEMENT WIFIEN IT FAILED TO HONOR MUMMA'S FIRST RIGHT ' These issues were: (i) Was the restrictive use covenant in the Pennsy-Turner deed valid and enforceable?; (ii) May the first right of refusal be recorded and if so, must it in order to be enforceable? (iii) Did the lis pendens impart constructive notice to Turner such that he had a duty to investigate the outcome of the1998 Mumma-Pennsy litigation? 4 Case 1:98-cv-00087-JEJ Document 162 Filed 11/1912008 Page 5 of 13 REFUSAL AM IF SO. WHAT WAS THE CONSEQUENCE OF THAT BREACH? Despite the somewhat contrived controversy regarding this issue set forth in the briefs filed by Pennsy, at oral argument Pennsy freely admitted that it had in fact breached the settlement agreement when it failed to notify Mumma that it had a potential purchaser for the Carlisle property. Implicit in this concession is Penny's admission that Mumma's first right of refusal was valid and enforceable despite Mumma's failure to record it.' After all, if the first right of refusal was void as a result of the failure to record, Penny's failure to notify Mumma of a potential purchaser for the Carlisle property would not have resulted in a breach. The consequence of this breach was, unquestionably, that Pennsy sold the Carlisle property, encumbered by a perpetual use restriction prohibiting concrete manufacturing on it, to Turner. These conclusions lead us to focus on the second and more complex issue that follows. B WAS TURNER A GOOD FAITH PURCHASER? When a seller (in this case Pennsy) transfers a parcel of land, in which a ' Indeed, we believe this implicit admission to be in line with Pennsylvania law, which has held, "the purpose of the recording statutes is to protect subsequent bona fide purchasers from injuries caused by secret pledges of property." Commonwealth of Pennsylvania Game Comm'n v. Ulrich. 565 A.2d 859, 861 (Pa. Con=w. CL 1989). Therefore, "Pennsylvania recording laws ... do not render invalid an unrecorded interest in land." Id at 862 (citing Land v. Pennsylvania Housing Finance Agency, 515 A.2d 1024 (Pa. Commw. Ct. 1986). 5 Case 1:98-cv-00087-JEJ Document 162 Filed 11/19/2008 Page 6 of 13 third party (in this case Mumma) has an interest or right, to a buyer (in this case Turner), the buyer can retain possession of the property unencumbered by the third party's interest or right if the buyer is a "bona fide purchaser." See Wurtzel v. Park ToWne Place Apartments Ltd. P'ship, 2001 WL 1807405 (Pa. Com. Pl. 2001); gemenko v. Campbell, 28 Pa. D&C 618, 620 (Pa. Com. Pl. 1982). A "bona fide" or "good faith" purchaser is a_party who "pay[s] valuable consideration, ha[s] no notice of the outstanding rights of others," and act[s] in good faith." Poffenberger v. Goldstein, 776 A.2d 1037, 1042 (Pa. Commw. Ct. 2001) (citations omitted). In this instance, it is not contested that Turner paid valuable consideration for the Carlisle property. However, Mumma does assert that Turner is not a bona fide purchaser because Turner had notice of his fast right of refusal and therefore did not pursue his course of conduct in good faith. Turner, obviously, denies this assertion. Both parties use the same sequence of events to bolster their claims,, which is as follows. After expressing an interest in purchasing the Property, Turner retained counsel who conducted a title search and discovered that there was a Us pendens on the Property. According to Turner's counsel, the following steps were taken to 4 In claiming that one has no notice of the rights of another, the claimant must exercise due diligence in attempting to discover said third party rights. I&o-n v.All 130 U.S. 177,183 (1889). 6 --, Case 1:98-cv-00087-JEJ Document 162 Filed 11/19/2008 Page 7 of 13 ensure the Property was not encumbered: (i) he obtained a copy of the docket reports showing that the underlying case in federal court that formed the basis of the Us pendens had been dismissed with prejudice; (ii) he received verbal assurances from Pennsy's attorneys at Saul Ewing that the matter involving the Us pendens had been settled and dismissed with prejudice; and (iii) he obtained an executed seller's affidavit from Pennsy stating that there were no agreements affecting the premises. Mumma argues that the lis pendens discovered by Turner's counsel, in tandem with the docket report's direction to "see order for details," imparted constructive notice to Turner that there was a potential cloud on the title to the Carlisle property. Accordingly, Mumma posits that Turner's decision to proceed with the transaction without discovering the nature of the encumbrance exhibits a failure of due diligence constituting bad faith, which prevents Turner from qualifying as a bona fide purchaser. Mumma avers that Turner could have done any of a number of things, all within the range of due diligence, that would have enabled him to discover the nature of encumbrance. For instance, Mumma argues that Turner could have contacted Mumma himself, since Mumma was the party ' As previously noted, the docket entry directed the reader to "see order for details." At the Hearing, Turner's counsel admitted, with great candor, that upon seeing the order he attempted to access PACER to verify the contents of the order but was unsuccessful in doing so. 7 Case 1:98-cv-00087-JEJ Document 162 Filed 11/19/2008 Page 8 of 13 benefitted by the encumbrance, to inquire about the lis pendens. Additionally, Mumma asserts that Turner could have checked the docket for the settlement order, as was suggested by the docket report. Conversely, Turner aptly notes that "lis pendens" literally means "a pending suit." McCahill v.Roberts, 219 A.2d 306, 308 (Pa. 1996), and that a lis pendens serves to give notice to third parties of one thing and one thing alone: that the property is subject to litigation, Vintage Homes v. Leven, 554 A.2d 989 (Pa. Super. 1989). Thus, Turner avers that when he discovered a lis pendens on the Property, he was put on notice that it was the subject of litigation. With this knowledge, Turner received two separate assurances from Pennsy's counsel that the lis pendens was no longer on the Property and that the title to the Property was free and clear of any encumbrances. Turner admits that he could have called Mumma to verify the nature of the encumbrance. He also admits that he could have expended additional energy in checking the settlement order. But, as Turner notes, the proper question is not could he have done these things; rather, it is should he have been required to do them. When taken in the context of Turner's course of conduct, we believe that the answer to the latter question is a resounding no. "Due diligence" is defined as "[t]he diligence reasonably expected from, and 8 Case 1:98-cv-00087-JEJ Document 162 Filed 11/19/2008 Page 9 of 13 ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation." BLACK'S LAw DicrloNARY (8th ed.). Therefore, in the instant matter, "due diligence" would be the degree of diligence expected from an ordinary purchaser of real property in attempting to discover encumbrances on the sought-after property. Although we have already recounted Turner's actions (through his counsel Mr. Otto) in this regard, we summarize them again to emphasize our point. In attempting to discover if the Carlisle property was encumbered, Turner (i) obtained a copy of the docket report showing that the underlying case in federal court that formed the basis of the lis pendens had been dismissed with prejudice; (ii) he received verbal assurances from Pennsy's attorneys at Saul Ewing that the matter involving the lis pendens had been settled and dismissed with prejudice; and (iii) he obtained an executed seller's affidavit from Pennsy stating that there were no agreements affecting the premises. In our considered view, after completing these steps and receiving these assurances, an ordinary purchaser could reasonably expect that the property was free from encumbrances. Turner, through his counsel Mr. Otto, did just that.6 6 Indeed, we are of the opinion that Turner's actions were entirely reasonable, and that his inquiries justifiably led him to believe that the Carlisle property was unencumbered. As a matter of fact, our determination that Turner was a bona fide purchaser is buttressed by the actions of both Pennsy and Mumma. First, the seemingly blatant misrepresentations made by Pennsy's counsel to Turner's counsel regarding the clarity of the title to the Carlisle property supports our belief that Turner did not in fact have notice, constructive or otherwise, of Mumma's first right 9 Case 1:98-cv-00087-JEJ Document 162 Filed 11/19/2008 Page 10 of 13 Mumma would have us impose upon Turner a duty that would have required him to obtain assurances from each party involved in the underlying litigation regarding the details of its resolution, despite the fact that the docket showed it to have been fully resolved. Surely, this would saddle Turner and title searchers everywhere with an excessively onerous burden requiring verification of clear title from each and every potential source of any type of encumbrance.' This undoubtedly would hamper the free alienability of real property, a concept which is supported by a strong public policy. Peters Y. East Penn Tom. Sch. Dist., 126 A.2d 802, 802 (Pa. Super. 1957). We decline the invitation to impossibly complicate property acquisition by imposing such a heavy burden. Accordingly, we find that Turner was a bona fide purchaser for value. Therefore, Turner's interest is superior to that of Mumma's, meaning that Tamer shall retain the Property despite Mumma's first right of refusal. of refusal. Second, while Mumma certainly was not required to record the first right of refusal, his failure to do so is another factor that militates in favor of the conclusion that Turner had no notice of the first right of refusal and therefore acted in good faith when proceeding to consummate the transaction for the Carlisle property. The professional diligence required by counsel in real estate transactions is grindingly difficult on a good day. Simply put, we believe that Mr. Otto did everything that could have been reasonably expected of him in representing Mr. Turner. Having practiced in this same area, we clearly would have followed the same course as Mr. Otto did in examining the title to the Carlisle property. It could never have been within Mr. Otto's contemplation that Penny's counsel's failure to reveal the right of first refusal would be followed by an affidavit from Pennsy itself to the same effect. 10 t r i Case 1:98-cv-00087-JEJ Document 162 Filed 11/19/2008 Page 11 of 13 CONCLUSION: We now conclude yet another chapter in this ongoing legal saga between Mumma and Pennsy, which has now effectively protracted itself over the span of a decade. Regrettably for Turner, he was pulled into the vortex of this maelstrom as a result of his purchase of the Carlisle property; however, our resolution will end his participation in the case sub judice. He departs along with the Carlisle property, largely due to Mumma's unfortunate decision, as aforestated, not to record his right of first refusal. The above having been said, we would be remiss in failing to note our disquietude over the conduct by both Pennsy and its counsel. Clearly, absent their acts, which were disingenuous to say the least, we would not be at this point. While the facts and law will not allow us to provide Mumma with his fondest hope, the denial of the property to Turner and effective reinstatement of the right of first refusal, we will now move to a second phase that will allow Mumma to state a case for alternative relief. NOW, THEREFORE, ff IS ORDERED THAT: 1. The relief requested in the Movant's Motion (Rec. Doc. 121) is GRANTED IN PART and DENIED IN PART to the following 11 s • Case 1:98-cv-00087-JEJ Document 162 Filed 11/19/2008 Page 12 of 13 extent: a. The Motion is GRANTED insofar as the Movant asserts that Pennsy breached the settlement agreement. b. The Motion is DENIED insofar as the Movant requests the opportunity to exercise his right of first refusal against Turner, the bona fide purchaser for value. C. The Motion is DENIED insofar as the Movant requests the opportunity to purchase the Carlisle Property from Mumma on terms similar or identical to those conditioned upon Turner. 2. Turner shall RETAIN possession of the Carlisle property subject to the terms of his contract with Pennsy. Turner is furthermore DISMISSED from the case. 3. Both Mumma and Pennsy shall submit initial briefs regarding the measure of damages resulting from Pennsy's breach of the settlement by December 2, 2008. The parties shall submit reply briefs, if any, by December 16, 2008. 4. The Court will schedule additional proceedings as necessary after a review of the requested submissions. 12 • r Case 1:98-ev-00087-JEJ Document 162 Filed 11/19/2008 Page 13 of 13 s/ John E. Jones III John E. Jones III United States District Judge 13 CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: Superior Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: Robert M. Mumma, II Grantor Retained Annuity Trust; Robert M. Mumma, II and Susan Mumma vs Benedict B. Randolph VS. Pennsy Supply, Inc. vs Danny L. Turner 08-7187 Civil Term 842 MDA 2009 The documents comprising the record have been numbered from No.1 to 144 , and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 08//0/2009. CTrtis R. L on ary Regina Lebo An additional cony of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. Date Signature & Title Among the Records and Proceedings enrolled in the court of Common Pleas in and for the county of ON A Cumberland in the Commonwealth of Pennsylvania to No. 084 A Civil Term, 19 is contained the following: COPY OF Appearance DOCKET ENTRY Robert M. Mama, II Grantor Retained Annuity Trust; Robert M. Mur[tta, II and Susan Mumma, Plaintiffs VS. Benedict B. Randolph VS. Penny Supply, Inc. Defendant VS. Danny L. Turner Additional Defendant **SEE CERTIFIED COPY OF THE DOCKET ENTRIES** 4 Commonwealth of Pennsylvania County of Cumberland ss: 1, CStrtiG R. Long , Prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full, true and correct copy of the whole record of the case therein stated, wherein Amuity Tri14t; RnhPrt• M_ Mtzmta II & Susan Miutma Benedict B. Randolph Plaintiff, and 1ennsV Cb1pply, ?nn_ ,fit ant Defendant , as the same remains of record before the said Court at No. OR-71 R7 of Ciyi3 Term, A. D. 19 In TESTIMONY WHEREOF, 1 have hereunto set my hand and affixed th seal of said Court this 10th day of -? All ist 41A. D., R6K_10-09 Prothonotary I, FAaar B- Bayley President Judge of the Nlntn Judicial District, composed of the County of Cumberland, do certify that nirtiS R. Long , by whom the annexed record, certificate and attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County, was, at the time of so doing, and now is Prothonotary in and for said County of nrnhPrlAnd in the Commonwealth of Pennsylvania, duly commissioned and qualifi o all of whose acts as such full faith and credit are and ought to be given as well in Courts of judic re aselr?at the said record, certificate and attestation are in due form of law and ma ye py the pr er o c r. "14) 2 1 'President Judge Commonwealth of Pennsylvania County of Cumberland ss: I, nirtis R. Long , Prothonotary of the Court of Common Pleas in and for the said County, do certify that the Honorable Bdgc- r' B. Bayley by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time of making thereof, and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere. IN TESTIMONY WHEREOF, 1 have hereunto set my hand and affixed the seal of said Court this ay o _ A. D. l?s2009. 0:"- Prothonotary 0 T 0 0 0 w ?e rr1 ?1 0 p ? 0 H „ O ro . + 0 3 ? y ? r ? ' a 3 a ? CrJ O [s7 A N d rt n I-h rt .. C co C z 0 N• 00 ?? N rF N • • O O t0 H H T f^! r} a H ?. H z 0 to .y 3 1 rl0:J11 %-tAttJJCL1CL111A \ VULILy rlVL 11V11VL QtY V1L-L-= Civil Case Print rCiyc 1 2008-07187 MUMMA ROBERT M ET AL (vs) RANDOLPH BENEDICT B Reference No..: Filed........: 12/09/2008 Case Type...... LIS PENDENS Time. .... : D t 8.18 0 Judgment..... .00 a Execution e 0/00/0 00 Judge Assigned: Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments - ----------- Higher Crt 1.: 842 MDA 2009 Higher Crt 2.: General Index Attorney Info MUMMA ROBERT M II PLAINTIFF SCOTT THOMAS W MUMMA SUSAN PLAINTIFF SCOTT THOMAS W RANDOLPH BENEDICT B DEFENDANT 132 RIVERCREST DR GREENVILLE NC 27858 9300 PENNSY SUPPLY INC DEFENDANT 1001 PAXTON ST HARRISBURG PA 17105 3331 TURNER DANNY L DEFENDANT Y' GILROY HUBERT X 210 BIG POND RD SHIPPENSBURG PA 17257 9646 Judgment Index Amount Date Desc RANDOLPH BENEDICT.B PENNSY SUPPLY INC TURNER DANNY L 12%09%2008 LIS PENDENS 1270972008 LIS PENDENS ******************************************************************************** * Date Entries ******************************************************************************** ?. [ 12/09/2008 l7 7 .53 12/09/2008 12/12/2008 `o_ 79 1/26/2009 Ss7_S'g 1/29/2009 Vl-gr1 2/17/2009 90 -/p/ 2/20/2009 10.2-/06 2/20/2009 Va 2/25/2009 3/05/2009 10)-la 3/10/2009 FIRST ENTRY ESRQ CIPE FOR LIS PENDENS AND LIS PENDENS ENTERED BY THOMAS W SCOTT ------------------------------------------------------------------- MOTION TO STRIKE LIS PENDENS BY HUBERT X GILROY ESQ ------------------------------------------------------------------- AFFIDAVIT OF SERVICE PURSUANT TO PA RCP 400 B 3 - PRAECIPE FOR LIS PENDENS UPON DEFTS COUNSEL - BY JOAN C SHADY LEGAL ASSISTANT ------------------------------------------------------------------- STATUS REPORT AND REQUEST TO CONTINUE HOLDING PETITION TO STRIKE LIS PENDENS IN ABEYANCE - BY THOMAS W SCOTT ATT'Y FOR PLFFS ------------------------------------------------------------------- ORDER OF HOLDING PE REPORT BY EDWARD E GUIDO J - COPIES MAILED 1//29 09 ------------------------------------------------------------------- MOTION TO STRIKE LIS PENDENS - BY HUBERT X GILROY ATTY FOR PETITIONER ------------------------------------------------------------------- STATUS REPORT AND REQUEST TO CONTINUE HOLDING PETITION TO STRIKE LIS PENDENS IN ABEYANCE - BY LINDA J OLSEN ATTY FOR PLFFS ------------------------------------------------------------------- PLAINTIFF'S RESPONSE TO ADDITIONAL DEFT DANNY L TURNERS MOTION TO STRIKE LIS PENDENS - BY LINDA J OLSEN ATTY FOR PLFFS ------------------------------------------------------------------- OR.DER OF COURT - 2/24/09 IN RE: MOTION TO STRIKE LIS PENDENS - LIS PENDENS IS STRICKEN - BY EDWARD E GUIDO J - COPIES MAIELD 2/25/09 ------------------------------------------------------------------- PLAINTIFF'S MOTION FOR POST TRIAL RELIEF - BY LINDA J OLSEN ATTY FOR PLFFS ------------------------------------------------------------------- ORDER OF COURT - 3/10/09 IN RE: PLFFS MOTION FOR POST TRIAL RELIEF A NEW HEARING AND ARGUMENT BEFORE THE COURT WILL BE HELD ON 4614/09 AT 11:00 AM IN CR3 CUMBERLAND COUNTY COURTHOUSE - BY E WARD E GUIDO J - COPIES MAILED 3/10/09 ----------------------------------=-------------------------------- tiVJ11 ?. u..w ?.ii u vvaaaa ?.j vvaa av ...uil v ... a ?Civil Case tPrint 2008-07187 MUMMA ROBERT M ET AL (vs) RANDOLPH BENEDICT B Reference No... Filed........: Case Type...... LIS PENDENS Time. .... . Judgment..... .00 Execution Date Judge Assigned: Jury Trial.... Disposed Desc.: Disposed Date. ------------ Case Comments ------------- Higher Crt 1.: 12/09/2008 8:18 0/00/0000 0/00/0000 842 MDA 2009 Higher Crt 2.: 4/15/2009 ORDER OF COURT - 4/14/09 - IN RE: MOTION FOR POST-TRIAL RELIEF/RECONSIDFRA?ION OF PLFFS IS DENIED - BY EDWARD E GUIDO J - COPIES MAILED 4//15 09 ------------------------------------------------------------------- faQ-/a//5/14/2009 NOTICE OF APPEAL TO SUPERIOR COURT - BY THOMAS W SCOTT ATTY FOR PLFFS ------------------------------------------------------------------- /dj_/p? 5/20/2009 SUPERIOR COURT OF PA NOTICE OF APPEAL DOCKETING TO #842 MDA 2009 ------------------------------------------------------------------- l 7/31/2009 ORDER- J7/31/09 IN RE:OPINTON/OPURSUANT TO PA RAP 1925 - BY EDWARD 7/39 ------------------------------------------------------------------- 8/10/2009 NOTICE OF DOCKET ENTRIES MAILED TO HUBERT X GILROY ESQ MICHAEL A FINIO ESQ MATTHEW M HAAR ESQ AND THOMAS W SCOTT ESQ - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - * Escrow Information * Fees & Debits Be*q Bal Pmts/Adj End Bal JUDGMENT-PRAECI 31.00 31.00 .00 APPEAL HIGH CT 48.00 48.00 .00 ------------------------ ------------ 79.00 79.00 .00 ******************************************************************************** * End of Case Information ******************************************************************************** TRUE 'COPY F" 7NA. RFCORD In Testimony whe:rc.cj`, i ; r.. u,:i.,, ?,,t my hand and the seal of said Couri, at Carii??, Pa. This ..... /.??....... day of..... Prothonotary ROBERT M. MUM MA, II AND SUSAN MUM MA, Plaintiffs V. BENEDICT B. RANDOLPH v. PENNSY SUPPLY, INC., Defendant V. DANNY L. TURNER, Additional Defendant TO THE PROTHONOTARY: IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-7187 CIVIL TERM PRAECIPE Please file of record the Order issued by Judge John E. Jones, III of the United States District Court for the Middle District of Pennsylvania attached hereto as Exhibit "A", granting the removal of deceased party, Benedict B. Randolph, from the Distribution List. Said Order further reflects that the name of Benedict B. Randolph shall remain in the caption for the purposes of convenience and continuity. Respectfully submitted Thomas)W. Scot(/Esquire Attorney I.D. #15681 Linda J. Olsen, Esquire Attorney I.D. #92858 KILLIAN & GEPHART, LLP 218 Pine Street P.O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 Dated: November 5, 2009 CERTIFICATE OF SERVICE I do certify that I served a true and correct copy of the within document upon the following by depositing a copy of same in the United States mail, postage prepaid, addressed as follows: Hubert X. Gilroy, Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 h ilroy(a,martsonlaw.com Michael A. Finio, Esquire Matthew Haar, Esquire Saul Ewing, LLP Penn National Insurance Tower 2 North Second Street, 7th Floor Harrisburg, PA 17101 mf niogsaul.com mhaar@saul.com Estate of Benedict B. Randolph 132 Rivercrest Drive Greenville, NC 27858-9300 Steven J. Fishman, Esquire Commonwealth Keystone Building 400 North Street, 4th Floor Harrisburg, PA 17120-0001 Killian & Gephart, LLP 218 Pine Street P. O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 Dated: November 5, 2009 \\ . 7850.. Pennsylvania Middle District Version 3.2.3 -Pennsylvania. Middle D... https://ecf.p=d.uscourts.gov/doel/15502652583?magiq.num- Case 1:98-cv-00087-JEJ Document 182-5 Filed 10/13/2009 Page 1 of 1 IN TBE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA Robert M. Mumma, II Grantor Retained Annuity Trust; Robert M. Mumma, II and Susan Mumma, Movants v. ; .Benedict B. Randolph : V. Pennsy Supply, Inc., Respondent v. Danny L. Turiner, Additional Respondent : Civil No.1:98-CV 0087 Judge John E. Jones III FILED ELECTRONICALLY VIA ECF AND NOW, this ly. day of 664. , 2009, upon consideration of the Motion to Remove Party of Record from Distribution List, IT IS HEREBY ORDERED that the said Motion is GRANTED, as follows: A. - Benedict B. Randolph is hereby permanently removed from the Distribution List; and B. Benedict B. Randolph's name shall remain in the caption of the instant case for purposes of convenience and continuity. 1 of 1 EXHIBIT '.'A'' 10/14/200912:42 PM BY THE COURT: f ??w t Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 - --- -- ---- ------ - -------------------------- ---- --- --- ---- --------------------- -- ----- - - ---- . - -- -- --------- -- AOPC 1013 Rev.12/04/2009 Karen Reid Bramblett, Esq. 6uPerior (Court of 3Penngpibania Prothonotary Middle District Milan K. Mrkobrad, Esq. Deputy Prothonotary December 4, 2009 RE: Mumma II, R. et al v. Randolph, B. et al No. 842 MDA 2009 Trial Court Docket No: 08-7187 Dear Attorney Scott Pennsylvania Judicial Center P.O. Box 62435 601 Commonwealth Avenue, Suite 1600 Harrisburg, PA 17106-2435 (717) 772-1294 www. superior. court. state. pa. us Enclosed please find a copy of an order dated December 4, 2009 entered in the above-captioned matter. Resp ctfully, Milan K. Mrkobrad, Esq. Deputy Prothonotary /aas Enclosure cc: Michael A. Finio, Esq. Hubert Xavier Gilroy, Esq. The Honorable Edward E. Guido, Judge Mr. Curtis R. Long, Prothonotary Mr. Benedict B. Randolph Robert M. Mumma, II, et al. V. Benedict B. Randolph, et al. ORDER IN THE SUPERIOR COURT OF PENNSYLVANIA (C.P. Cumberland County No. 08-7187) No. 842 MDA 2009 Filed: December 4- , 2009 Upon consideration of the Suggestion of Death filed by appellants, the application for relief is hereby GRANTED and the following is ORDERED: Benedict B. Randolph shall be removed from the distribution list. Benedict B. Randolph's name shall remain in the caption of this case for purposes of convenience and continuity. Per Curiam 'r UEC ?.? PM: CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER I PENNSYLVANIA RULE OF APPELLATE PROCEDURE 19311C To the Prothonotary of the Apellate Court to which the within matter has been appealed: Superior Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: Robert M. Mumma, II Grantor Retained Annuity Trust; Robert M. Mumma, II and Susan Mumma vs Benedict B. Randolph VS. Pennsy Supply, Inc. • vs Danny L. Turner 08-7187 Civil Term 842 MDA 2009 The documents comprising the record have been numbered from No.1 to 144 , and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 08//0/2009 . Jurtis R. Long, ro ho ary Regina Lebo An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. Received in Superior Court • ? i I r, 1 I1Ufl9 Date Signature & Title MIDDLE supreme Court of Vennoplbui4 Irene M. Bizzoso, Esq. Acting Prothonotary Middle District Elizabeth E. Zisk Chief Clerk July 29, 2010 Buell, David D. Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 601 Commonwealth Avenue, Suite 4SW P.O. Box 62575 Harrisburg, PA 17106 (717) 787-6181 www.pacourts.us RE: Robert M. Mumma II and Susan Mumma, Trustees of the Robert M . Mumma II Grantor Retained Annuity Trust; Robert M. Mumma, II, and Susan Mumma, , , Petitioners V. Benedict B. Randolph (Deceased) V. Pennsy Supply, Inc. V. Danny L. Turner r-: No. 43 MM 2010 `- Q --,.s Trial Court Docket No: 08-7187 : - - Superior Docket Number: 842 MDA 2009 Appeal Docket No: Date Petition for Allowance of Appeal Filed: March 8, 2010 ` Disposition: Order Denying Petition for Review - Disposition Date: July 29, 2010 p Rea rg ument/Reconsideration Disposition: Reargument/Reconsideration Disposition Date: /mjh IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT ROBERT M. MUMMA II AND SUSAN No. 43 MM 2010 MUMMA, TRUSTEES OF THE ROBERT M. MUMMA, II, GRANTOR RETAINED ANNUITY TRUST; ROBERT M. MUMMA, II, AND SUSAN MUMMA, Petitioners V. BENEDICT B. RANDOLPH (DECEASED) : V. : PENNSY SUPPLY, INC. V. DANNY L. TURNER, q' > Respondents e? ORDERi PER CURIAM AND NOW, this 29th day of July, 2010, the Petition for Leave to File Petition for Allowance of Appeal, treated as a Petition for Review, is DENIED. TRUE & CORRECT COPY ATTEST: JULY 29, 2010 Elizabeth isk, C ief Clerk Karen Reid Bramblett, Esq. Pennsylvania Judicial Center Prothonotary Middle District P.O. Box 62435 Milan K. Mrkobrad, Esq. 601 Commonwealth Avenue, Suite 1600 Deputy Prothonotary Harrisburg, PA 17106-2435 (717) 772-1294 www. superior. court. state. pa. us CERTIFICATE OF REMITTAUREMAND OF RECORD TO: Prothonotary RE: Mumma II, R. et al v. Randolph, B. et al 842 M DA 2009 Trial Court: Cumberland County Court of Common Pleas Trial Court Docket No: 08-7187 Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Original Record contents: Item Filed Date Description Part August 13, 2009 RemandlRemittal Date: 08/23/2010 ORIGINAL RECIPIENT ONLY - Please acknowledge receipt by signing, dating, and returning the enclosed copy of this certificate to our office. Copy recipients (noted below) need not acknowledge receipt. Respectfully, Milan K. Mrkobrad, Esq. Deputy Prothonotary /vsl Enclosure cc: Michael A. Finio, Esq. Hubert Xavier Gilroy, Esq., The Honorable Edward E. Guido, Judge Thomas W. Scott, Esq. ?? ,? :_:? Mumma II, R. et al v. Randolph, B. et al 842 MDA 2009 Letter to: Buell, David D. Acknowledgement of Certificate of RemittalIRemand of Record (to be returned): Signature Printed Name Date 5 1 3. A06020-10 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 ROBERT M. MUMMA, II and SUSAN MUMMA, TRUSTEES OF THE ROBERT M. MUMMA, II, GRANTOR RETAINED ANNUITY TRUST; ROBERT M. MUMMA, II, and SUSAN MUMMA, Appellants V. BENEDICT B. RANDOLPH, V. PENNSY SUPPLY, INC., V. DANNY L. TURNER, IN THE SUPERIOR COURT OF PENNSYLVANIA IWO- ACk . a Appellees No. 842 MDA 2009 Appeal from the Order Entered February 25, 2009, Court of Common Pleas, Cumberland County, Civil, at No. 08-7187 BEFORE: GANTMAN, ALLEN and LAZARUS, JJ. MEMORANDUM: FILED: February 4, 2010 Robert M. Mumma, II and Susan Mumma, trustees of the Robert M. Mumma, II, Grantor Retained Annuity Trust, and Robert M. Mumma, II and Susan Mumma ("Appellants") appeal from the trial court's February 25, 2009 ]. A06020-10 order striking a lis pendens entered on the subject property in 2008.1 We quash Appellants' appeal because their notice of appeal was filed untimely. Appellants filed two praecipes for a lis pendens, one in 1998 and one in 2008, in the Cumberland County Court of Common Pleas. Appellants entered the Us pendens in connection with litigation they commenced in the United States District Court for the Middle District of Pennsylvania (the "Middle District") against Pennsy Supply, Inc. ("Pennsy"). The basis of the dispute concerned title to and ownership of real property located at 1607 Industrial Road, Carlisle, Cumberland County (the "Property"). The parties terminated the litigation by entering into a settlement agreement. Under the terms of the settlement agreement, Pennsy was granted title to and ownership of the Property and Appellants received a right of first refusal. A few years later, Danny Turner ("Turner"), without any knowledge that Appellants had a right of first refusal, made Pennsy an offer for the Property. Pennsy ignored Appellant's right of first refusal and in 2007, sold the Property to Turner. Appellants, on December 19, 2007, filed a motion to enforce settlement agreement in the Middle District, requesting that the district court2 compel Pennsy to honor their first right of refusal. 1 In a nearly duplicative appeal, Appellants appeal from the trial court's February 25, 2009 order striking a lis pendens entered on the subject property in 1998. See Mumma v. Randolph, No. 843 MDA 2009/A06021- 10 (Pa. Super. 2010). z We refer to the sitting judge of the Middle District as "the district court," and the sitting judge of the Court of Common Pleas as "the trial court." -2- J. A06020-10 On December 9, 2008, Turner, the current title owner to the Property, filed a motion to strike the 1998 and 2008 lis pendens in the Cumberland County Court of Common Pleas. Turner filed his motion to strike in the trial court while the litigation in the Middle District was still pending. At the time Turner filed his motion to strike, the district court, by order dated November 19, 2008, resolved all issues affecting title to the Property, finding that Turner was a good faith purchaser. Thus, the district court concluded that Turner had valid title to the Property and that Appellants could not exercise their right of first refusal. The district court further concluded that monetary damages were Appellants' appropriate remedy for Pennsy's breach of the settlement agreement and ordered the case to proceed to a determination of damages. On February 25, 2009, the trial court, relying on the reasoning set forth in the district court's November 19, 2008 order and memorandum, entered an order striking both of the lis pendens. The trial court concluded that the lis pendens could not stand because there was not any pending litigation concerning Turner's title to or rights in the Property. In its February 25, 2009 order, the trial court did not direct Appellants to file post- trial motions. On March 5, 2009, Appellants filed a motion for post-trial relief in the trial court. By order dated April 14, 2009, the trial court denied Appellants' -3- J. A06020-10 motion. On May 14, 2009, Appellants filed a notice of appeal with this Court. Appellants claim that their appeal lies from the trial court's April 14, 2009 order denying their motion for post-trial relief as opposed to the trial court's February 25, 2009 order striking the lis pendens. Appellants also suggest that the trial court conducted a bench trial in ruling on Turner's motion to strike the lis pendens, and thus, they were required to file a post- trial motion to preserve issues for appellate review. For these reasons, Appellants contend that their notice of appeal filed on May 14, 2009 was timely. We do not agree. Under Pa.R.A.P. 903(a), a notice of appeal shall be filed within 30 days after entry of order from which the appeal is taken. In general, the appeal period commences in a trial, whether by judge or jury, following the denial of post-trial motions and the entry of judgment. Crystal Lake Camps v. Alford, 923 A.2d 482, 488 (Pa. Super. 2007); Taxin v. Shoemaker, 799 A.2d 859, 860 (Pa. Super. 2002). This is because the entry of judgment constitutes the final, appealable act in a trial. See id. In this case, however, disposition of the motion to strike did not involve or require a trial. Indeed, the proceedings were properly decided on motion and answer, and did not necessitate a formal evidentiary hearing or the taking of testimony. See Rosen v. Rittenhouse Towers, 482 A.2d 1113, 1117 n. 4 (Pa. Super. 1984) (noting that a trial court can grant relief -4- J. A06020-10 on a motion to strike a lis pendens without conducting a formal hearing and taking testimony). Consequently, under our Rules of Civil Procedure, Appellants were prohibited from filing post-trial motions in response to the trial court's order striking the lis pendens. Pa.R.C.P. 227.1, Note ("A motion for post-trial relief may not be filed to . . . proceedings which do not constitute a trial."); see PNC Bank, Nat'l Assn v. Balsamo, 634 A.2d 645, 647 n. 3 (Pa. Super. 1993) (concluding that the proceedings accompanying a motion to strike a writ of revival did not constitute a trial and "motions for post-verdict relief were prohibited."). Therefore, Appellants' post dispositional filing, although presented as a motion for post- trial relief, was the functional equivalent of a motion for reconsideration. It is well-settled that a motion for reconsideration does not toll the appeal period. Valley Forge Center Associates v. Rib-It/K.P., Inc., 693 A.2d 242, 245 (Pa. Super. 1997). The trial court's order striking the lis pendens, accordingly, was appealable immediately as it disposed of all parties and all claims, was not subjected to post-trial motion practice under Pa.R.C.P. 227.1, and could not be reduced to a judgment under Pa.R.C.P. 227.4. See Pa.R.C.P. 227.1; Pa.R.C.P. 227.4; Pa.R.A.P. 341.3 Because the trial court's 3 We note that in a typical suit, an order striking a lis pendens is an interlocutory, non-appealable order because it is usually combined with substantive claims for equitable relief, i.e., a declaratory judgment action or a claim for specific performance. See generally Fitter v. Chandor, 527 A.2d 1050 (Pa. Super. 1987). That is not the case here, where Turner's motion to strike was the only matter presented to the trial court for decision. As such, the trial court's February 25, 2009 order was final and immediately -5- 3. A06020-10 February 25, 2009 order striking the lis pendens commenced the running of the appeal period, and Appellants did not file their notice of appeal until May 14, 2009, Appellants' appeal is patently untimely. Having no jurisdiction to consider the merits of this matter, we quash the appeal. Appeal quashed. Matter stricken from argument list. Judgment Entered. Deputy Prothonotary Date: February 4, 2010 appealable. See, e.g., Rosen, 482 A.2d at 1114 (addressing the merits of an appeal taken from an order granting a motion to strike lis pendens); Psaki v. Ferrari, 546 A.2d 1127 (Pa. Super. 1988) (same). -6-