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HomeMy WebLinkAbout01-17-89 (4) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION NO. 21-86-398 ESTATE OF ROBERT M. MUMMA, DECEASED PRELIMINARY OBJECTIONS OF ROBERT M. MUMMA, II TO THE PETITION OF BARBARA MCK. MUMMA AND LISA M. MORGAN FOR DECLARATORY JUDGMENT UNDER 42 Pa. C.S. ~7533 AND FOR OTHER RELIEF UNDER 20 Pa.C.S. Subch. 33C and ~ 7133 Robert M. Mumma, II, defendant in the above action, by his attorneys, Fowler, Addams, Shughart & Rundle and Pepper, Hamilton & Scheetz, files the following preliminary objections to the Petition for Declaratory Judgment under 42 Pa. C.S. ~7533 and for Other Relief under 20 Pa. C.S. Subch.33C and ~7133 (the "Petition") : 1. As to Jurisdiction: The Court lacks jurisdiction over the Petition because there are minor beneficiaries under the will of Robert M. Mumma and no one representing their interests has been made a party to this action as required by 20 Pa. C.S. ~7540, and therefore the Petition should be dismissed. 2. As to Jurisdiction: The Court lacks jurisdiction because no person representing the interests of the unascertained beneficiaries under the will of Robert M. Mumma has been made a party to this action as required by 20 Pa. C.S. ~7540, and therefore the Petition should be dismissed. 3. As to Law: The Petition is deficient because it seeks an advisory opinion beyond the scope permitted for declaratory judgments. It asks the Court to "bless" a business . /;""\ ,,", ("'-- f r transaction in anticipation of events which may not ever occur, and therefore the Petition should be dismissed. 4. As to Law: The Petition is deficient because the issues it raises are not proper for a declaratory judgment proceeding in that the Court cannot adequately determine such issues without having before it the Accounts of the Executors of the Estate of Robert M. Mumma and the Trustees under the will of Robert M. Mumma. only upon examination of all transactions that would be shown in such Accounts will the Court be able to adequately determine whether there is any basis for a conclusion by the Executors and Trustees not to retain shares in Nine Ninety-Nine, Inc. ("999") and Hummelstown Quarries, Inc. ("Hummelstown"). The proper procedure for considering the issues presented in the Petition is at the audits of such Accounts, and therefore the Petition should be dismissed. 5. As to Jurisdiction: The Court lacks subject matter jurisdiction to determine the rights and liabilities of the shareholders of 999 and Hummelstown with respect to any contemplated "cash-out" of minority interests in such corporations and such jurisdiction is not conferred on the Court merely because a decedent's estate is one of the shareholders. 6. As to Law: The Petition is deficient because it asks the Court to search out and define a new legal doctrine (i.e. a "reverse split") and to enhance legal rights and obligations which are fixed under Pennsylvania law, and the relief sought is therefore beyond the scope of a declaratory judgment action. ~3~ WHEREFORE for the above reasons it is respectfully requested that the Court enter an Order dismissing the entire Petition. Respectfully submitted, James R. Ledwith Jon A. Baughman Anthony Vale PEPPER, HAMILTON & SCHEETZ 3000 Two Logan Square 18th and Arch Streets Philadelphia, PA 19103 (215) 981-4000 John B. Fowler, III FOWLER, ADDAMS, SHUGHART & RUNDLE 28 South Pitt Street Carlisle, PA 17013 (717) 249-8300 nt for Robert M. Mumma, II ),,'5/ CERTIFICATE OF SERVICE I, John B. Fowler, III, certify that a copy of the attached Preliminary Objections of Robert M. Mumma, II to the Petition of Barbara McK. Mumma and Lisa M. Morgan for Declaratory Judgment Under 42 Pa.C.S. ~7533 and for Other Relief Under 20 Pa.C.S. Subch. 33C and ~7133 of Barbara McK. Mumma and Lisa M. Morgan were served upon Petitioner's counsel, william E. Zeiter, 2000 One Logan Square, Philadelphia, PA, 19103, by first class mail on January 17, 1989. ;3~.; FOWLER, III , -'&- '" /"",. .... ~ CERTIFICATE OF SERVICE I, John B. Fowler, III, certify that a copy of the attached Preliminary Objections of Robert M. Mumma, II to the Petition for Declaratory Judgment Under 42 Pa.C.S. ~7533 and for Other Relief Under 20 Pa.C.S. Subch. 33C and ~7133 of Barbara McK. Mumma and Lisa M. Morgan was served upon Petitioner's associate counsel, William F. Martson, 10 East High Street, Carlisle, PA 17013, by first class mail on January 17, 1989. J&j)U !# "JOHN B. FOWLER, III / / ; I / V '/ ., ::I: "'" ~~"". CERTIFICATE OF SERVICE I, John B. Fowler, III, certify that a copy of the attached Preliminary Objections of Robert M. Mumma, II to the Petition for Declaratory Judgment Under 42 Pa.C.S. ~7533 and for Other Relief Under 20 Pa.C.S. Subch. 33C and ~7133 of Barbara McK. Mumma and Lisa M. Morgan were served by first class mail on January 17, 1989 upon the following: Barbara M. McClure 129 S. Lewisberry Road Mechanicsburg, PA 17055 Linda M. Roth 5104 Wessling Lane Bethesda, MD 20814 Attorney General Commonwealth of Pennsylvania strawberry Square Harrisburg, FA 17120 ~~~ B. FOWLER, III d3i