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HomeMy WebLinkAbout01-17-89 (3) JOHN B. FOWLER, III FOWLER, ADDAMS, SHUGHART & RUNDLE P.O. Box 208 28 South pitt Street Carlisle, PA 17013 (717) 249-8300 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 IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY BARBARA McK. MUMMA and LISA M. MORGAN, Executors of and Trustees under the will of Robert M. Mumma, deceased, : Plaintiffs, ORPHANS' COURT DIVISION 21-86-398 vs. ROBERT M. MUMMA, II BARBARA M. McCLURE and LINDA M. ROTH, : Defendants. PRELIMINARY OBJECTIONS OF ROBERT M. MUMMA, II TO THE COMPLAINT FOR DECLARATORY JUDGMENT UNDER 42 Pa. C.S. 97533 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 Complaint for Declaratory Judgment under 42 Pa. C.S. 97533 ,;)3s L and for other Relief under 20 Pa. C.S. Subch.33C and ~7133 (the "Complaint"): 1. As to Form: The complaint should be dismissed because it fails to conform to Local Orphans' Court Rule 32.1 which provides that the pleadings in this Court shall be limited to the specific forms of pleadings stated therein, none of which is a "complaint". 2. As to Jurisdiction: The Court lacks jurisdiction over the complaint 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 Complaint should be dismissed. 3. 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 Complaint should be dismissed. 4. As to Law: The Complaint is deficient because it seeks an advisory opinion beyond the scope permitted for declaratory judgments. It asks the Court to "bless" a business transaction in anticipation of events which may not ever occur, and therefore the Complaint should be dismissed. 5. As to Law: The Complaint 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 ') ;</. P\,"".-v 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. (N999N) and Hummelstown Quarries, Inc. (NHummelstownN). The proper procedure for considering the issues presented in the Complaint is at the audits of such Accounts, and therefore the Complaint should be dismissed. 6. As to Jurisdiction: Count II of the Complaint should be stricken because 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. 7. As to Law: Count II of the Complaint should be stricken 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 in Count II is therefore beyond the scope of a declaratory judgment action. WHEREFORE for the above reasons it is respectfully ~37 requested that the Court enter an Order dismissing the entire Complaint. Respectfully submitted, James R. Ledwith Jon A. Baughman Anthony Vale PEPPER, HAMILTON & CHEETZ 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 --- vf1 Robert M. Mumma,II ~I :% 1" rnvt)